Obama judge blocks deportation of detainees over Trump refugees, judge replaced a George W. Bush nominated judge

This Obama judge was confirmed during the last congress when the Republicans controlled the Senate.  From The Hill newspaper:

U.S. District Court Judge Ann Donnelly ruled in favor of a habeas corpus petition filed by the American Civil Liberties Union (ACLU) on behalf of two Iraqi men who were detained at John F. Kennedy International Airport on Friday after Trump signed his order. 

Donnelly, who was nominated by former President Barack Obama and confirmed to her judgeship in 2015, ruled in the Eastern District of New York that "there is imminent danger that, absent the stay of removal, there will be substantial and irreparable injury to refugees, visa-holders, and other individuals from nations subject" to Trump's order. 

“This ruling preserves the status quo and ensures that people who have been granted permission to be in this country are not illegally removed off U.S. soil," said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project. . . .

Judge Donnelly replaced a judge nominated by George W. Bush, Sandra Townes.  How a delay of a couple of weeks or even a month would have done "substantial and irreparable injury" isn't obvious.

Obama's judicial nominees being pushed through the Senate at fast clip

From Politico:

The Senate barely does anything these days — except approve judges that could shape the law for a generation. 

Since Majority Leader Harry Reid (D-Nev.) changed Senate rules in November to ease the approval of most of President Barack Obama’s nominees, Democrats have churned through confirmations of dozens of new judges — giving them lifetime appointments that will extend the administration’s influence for years to come. Over a roughly equivalent period during the 113th Congress, the Senate confirmed 36 district and circuit court judges before the rules change and 68 after, according to Senate statistics. 

Republicans have fought Democrats at every step, using their remaining procedural tools to stymie quick approval of judges and many executive branch nominees whose sway over regulations are magnified by today’s congressional stalemate. But the days of epic confirmation fights are over now because all nominees — save for those to the Supreme Court — need only a bare majority for approval after Democrats used the unilateral “nuclear option” to change the rules. . . .

Of course, the comparison of 36 to 68 is quite misleading as it takes a while at the beginning of every Congress to get the judicial nomination process up to speed.

UPDATE: The WSJ has this discussion on court packing.

Obama has more federal judges confirmed than George Bush

Obama not only has more federal judges confirmed, but his judges are much more liberal than Bush's were conservative.  The confirmations represent a real change in the federal bench.  From Politico:

Over the course of his presidency so far, Obama’s nominated 301 judges and gotten 237 confirmed. By this point in his presidency, Bush had nominated 267 judges and had 234 of them confirmed.As of April 4, Obama has gotten 44 circuit court judges and 191 district court judges confirmed. As of April 4, 2006, Bush had 43 circuit court and 189 district court judges confirmed. . . .

Obama has thus appointed 25 percent of the 179 circuit court judges and 28 percent of 677 district court judges.  Because Democrats can confirm anyone they want, the number of nominations is probably a better measure of Obama's impact and that means he will soon have about 35 percent of the federal bench (301/856).  He is clearly on track to appoint over half of the circuit and district court judges.

Obama's regulatory push is really being unleashed

Americans have seen Obama's regulations end internship programs, declare war on piano teachers,  and make life very difficult for makers of guitars.  In the past even the liberals on the Supreme Court have found some of Obama's regulations going much too far (e.g., striking down Obama's attempt to impose Federal discrimination rules on who religious organizations can have as their religious leaders).  But now with the Democrats' court packing scheme for the DC Circuit, radical Democrats are going to be controlling regulatory decisions for decades.  From The Hill newspaper:

. . . Three of the judicial vacancies are at the powerful D.C. Circuit Court of Appeals. The court is charged with ruling on challenges to rules imposed by federal agencies, often making it ground zero for battles over Obama’s regulatory agenda. 

The court’s bench is currently split evenly between judges nominated by Democratic and Republican presidents. But five of six semi-retired “senior judges” who help with the court’s workload were installed during Republican administrations. 

In recent years, the court has dealt a series of blows to the Obama administration’s agenda by striking down regulations on numerous fronts.  

The change in the Senate’s rules come at a time when judges are expected to decide major disputes over provisions in the Dodd-Frank financial reform law, ObamaCare and the president's push on climate change, several observers of the court said. 

“It removes one set of barriers to having regulations in place,” Donner said. 

Beyond blocking regulatory initiatives, the court has had a chilling effect on agencies that regulate the financial sector, advocate groups say. . . .

Democrats saying that the "nuclear option" really isn't that bad because other options are available for blocking nominations

From the New York Times:

The decision by Senate Democrats to eliminate filibusters for most judicial nominations only marginally enhanced President Obama’s power to reshape the judiciary, according to court watchers from across the political spectrum, because Republican senators can still veto his nominees to most currently vacant appeals court seats. 

The new Senate rule clears the way for eight appeals court nominees who have already had confirmation hearings to win approval with simple majority votes, including three on the powerful Court of Appeals for the District of Columbia Circuit, which reviews federal policies and regulations. But it left unchanged the Senate’s “blue slip” custom, which allows senators to block nominees to judgeships associated with their states. 

“It is hard to overstate the change’s importance for the D.C. Circuit, which has a disproportionate impact on the world, but it won’t have overwhelming impact elsewhere,” Kathryn Ruemmler, the White House counsel, said in an interview. “The blue slip rule for judges has been more problematic than the filibuster, in part because it is a silent, unaccountable veto.” . . .  

After the vote to change the filibuster rule, Mr. Leahy reiterated his support for the blue slip rule. Still, he also said he could change his mind if it were abused — without defining “abuse.” . . . 

“Some Democratic appointees may be more attracted to retiring in this window because they have more confidence that Obama will be able to appoint a young successor,” he said. . . .

The "blue slip" rule won't help stop nonjudicial nominations.  I should also note that the "blue slip" rule has been changed in the past.  Sometimes it has required that both Senators from a state use their "blue slip," but at other times it has only required one Senator doing it.

Filibusters have fallen under Obama: The media is confusing motions to file for cloture votes with successful filibusters

Click on figures to enlarge.

There are three stages in a filibuster fight: file a motion for cloture, a vote on cloture, and whether a cloture is invoked.  In the Senate, a motion must be filed before a cloture vote can take place.  Motions to file for cloture is the measure that the Democrats and the media want everyone to focus on, but the typical discussion averages the numbers across administrations and ignores that this soared before Obama became president.  Indeed, the important point to emphasize is that the increase in motions for cloture occurred when Democrats took control of the Senate in 2007.  What happened was that Democrats decided to file a motion for cloture whenever debates started, even if there was no threat of a filibuster.

Motion for clotures soared from 68 in 2005-2006 (when Republicans controlled the Senate) to 139 in 2007-2008 (when Democrats controlled the Senate), and they have remained high since then as Democrats have continued to be in control.

But a motion filed is not a vote on cloture, let alone a successful filibuster.  Indeed, the annual rate of successful filibusters under Obama (15) is actually slightly lower than it was under George W. Bush or Clinton (17 each). 

The drop is even more pronounced when one looks at the pattern since the Democrats took control of the Senate in 2007.  In 2007-2008 under George W. Bush, there were 51 successful filibusters.  During the next to congresses under Obama those numbers were 28 and 32.  So much for the claim that Obama is being singled out for filibusters.  

Conclusion: the changes in both motions to file and filibusters are due to the Democrats taking control of the Senate.  And it is not surprising given that Democrats are running the show, the problems were greater for George W. Bush than for Obama.

The data for this is available here.

Appearance on Larry Kudlow's CNBC to discuss the "Nuclear Option"

Appearance on Mike Huckabee's radio show to discuss the "nuclear option" and "Dumbing Down the Courts"

My appearance on Mike Huckabee's radio show to discuss the "nuclear option" is available here.

Senate Democrats point to number of filibusters, but the real key is confirmation rates and Obama was doing much better than Bush

The figure is from the NY Times (click figure to make it larger).  As I noted in my op-ed in today's New York Post:

Nor do the confirmation rates bare out Obama’s concerns. Of all his circuit court nominations during his first term, the vast majority, 85 percent, have now been confirmed. Bush got only 72 percent of his nominees confirmed. In fact, a couple of the openings on the DC Circuit court are only available because Democrats refused to confirm Bush’s nominees. . . .

Indeed, my book "Dumbing Down the Courts" shows that you have to go back to the Reagan administration to find an administration with as high a confirmation rate for Circuit court nominees as Obama.

New York Post piece on the "nuclear option" push in the Senate

Apparently, the Democrats now have the 51 votes they need to eliminate the filibuster and they are going to push for it soon.  My newest piece at the New York Post starts this way:

President Obama’s timing could have been better. Only two weeks ago in Texas, at a fundraiser, he bragged about “remaking the courts.” 

Obama told the audience: “In addition to the Supreme Court, we’ve been able to nominate and confirm judges of extraordinary quality all across the country on federal benches. We’re actually, when it comes to the district court, matching the pace of previous presidents. When it comes to the appellate court, we’re just a little bit behind, and we’re just going to keep on focused on it.” 

This was quite a change from June, when he accused Republicans of “cynically” engaging in “unprecedented” obstruction of judicial nominations. The president made those charges when he nominated three judges to the US Court of Appeals for the District of Columbia: Patricia Millett, Cornelia Pillard and Robert Wilkins. 

With Republicans filibustering these nominations over the last three weeks, Democrats are now threatening to deploy the “nuclear option” — in effect, ending the ability of senators to filibuster court nominations. On Monday, after the vote to break the filibuster on Wilkins failed, Senate Judiciary Chairman Patrick Leahy (D-Vt.) warned: “The talk about changing the cloture rules for judicial nominations will no longer be just talk. There will be action.” 

But this is all political rhetoric; the complaints are exaggerated. In fact,  . . .

UPDATE:  Compare Obama's statements to the fundraiser two weeks ago to the his statement today.  From The Hill newspaper:

[Obama] said “enough is enough” and applauded Senate Democrats for changing the body’s rules to prevent a filibuster on nominations other than to the Supreme Court. 

“I support the step that a majority of Senators took to change the way Washington does business,” Obama said. “I realize neither party has been blameless for these tactics ... But today's pattern of obstruction just isn't normal.” . . .

Senate Democrats now have the votes to push the "nuclear option"

From the Washington Post:

The aide says Reid believes he now has 51 Dem Senators behind a rules change, if it comes down to it. The Huffington Post reports that some Dem Senators who have previously opposed changing the rules — such as Barbara Boxer and Dianne Feinstein — are now open to it. “I believe that we are there,” the aide tells me. . . .

The "Nuclear Option" push really begins now

The Huffington Post as this ominous quote from Senator Patrick Leahy:

"I fear that after tonight, the talk about changing the cloture rules for judicial nominations will no longer be just talk. There will be action," said Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee. "We cannot allow this unprecedented, wholesale obstruction to continue without undermining the Senate’s role provided in the Constitution and without harming our independent federal judiciary." . . .

Some quotes from angry Democratic Senators in Roll Call:

Democratic leaders are again taking the temperature of their caucus on whether to finally go “nuclear” and change the Senate rules after Republicans blocked another judge Monday night, aides said. 

Conversation about the “nuclear option” between leaders and the rank and file began as members trickled back into town before a failed 53-38 cloture vote on the nomination of Robert L. Wilkins to the D.C. Circuit Court of Appeals. . . .

“When will we say enough is enough? Repeatedly over the past month, a minority of Senators has blocked qualified nominees by abusing the Senate rules. The rules on nominees are not working, and we need to change them,” [Sen. Jeff Merkley, D-Ore.] said in the statement. “This court will rule on the critical protections that we put in place to protect hard working families from the predatory practices of Wall Street. We cannot let a minority of Senators block qualified nominees and endanger the important reforms that have been put in place to protect Oregon families.” . . . 

“When it comes to judicial nominations, I am fulfilling my constitutional responsibility, but Congress is not. Instead, Senate Republicans are standing in the way of a fully-functioning judiciary that serves the American people,” Obama said. “The American people and our judicial system deserve better. A majority of the United States Senate supports these three extraordinary nominees, and it is time for simple yes-or-no votes without further obstruction or delay.” . . . 

“I am very hopeful that Sen. Reid will be able to get … these votes on the floor so that they can be voted up-or-down, but I think we have a constitutional responsibility, particularly with judges, to vote on the nominations of the president,” Sen. Benjamin L. Cardin said at the CBC news conference. . . .

Politico:

It may take weeks to get there, but the latest GOP tactic essentially guarantees the Senate will soon endure another draining fight over changing the chamber’s rules by a simple majority by invoking what is called the “nuclear option.” . . . .

CNN notes:

the idea [“nuclear option”] has gained steam in recent weeks even among some veteran Democratic senators who have been reluctant to change the rules. . . . 

Another article in Roll Call mentions that Democrats are pushing the claim that the filibuster was due to racism.

Minutes after Senate Republicans blocked confirmation of an African-American judge to the D.C. Circuit Court of Appeals, Congressional Black Caucus Chairwoman Marcia L. Fudge, D-Ohio, suggested that one of the motivators for the filibuster was his race. 

“I certainly think it had some impact,” said Fudge at a press conference flanked by fellow CBC members and Democratic Sens. Benjamin L. Cardin of Maryland and Sheldon Whitehouse of Rhode Island after Republicans blocked Judge Robert L. Wilkins. “It is clear who they are keeping out of judicial nominations and other positions that we know have to be filled for the government to run effectively. 

“You have to ask them what their motives are,” Fudge continued. “All I know is what I see.” . . . 

Democrats may be really close to the "Nuclear Option," ending the ability to filibuster judges

From Politico:

Senate Republicans blocked another one of President Barack Obama’s nominees to a key appellate court, enraging Democrats and further raising the prospects of a battle over changing the rules that govern the chamber. . . .  

White House press secretary Jay Carney portrayed the persistent GOP resistance to Obama’s D.C. Circuit picks as nothing short of historic. . . .

Roll Call magazine:

Democrats inched closer to another “nuclear” rules standoff Tuesday evening on the heels of another filibuster vote on one of President Barack Obama’s nominees to the D.C. Circuit Court of Appeals. 

Several Democratic senators, led by Judiciary Chairman Patrick J. Leahy of Vermont, met with reporters late Tuesday with another round of warnings about the chances that not filling the seats on the appellate court could lead to a “nuclear option” rules debate. 

“I’ve said it before and I’ll say it again. There comes a tipping point, and I’m afraid we’ve reached that tipping point,” Majority Whip Richard J. Durbin of Illinois said at the news conference. “We cannot ask people in good faith to submit their names and reputations to this judicial process if they’re going to be treated so unfairly and unjustly by the Republicans and their filibusters.” . . .

From The Hill newspaper:

Reid “is willing” to change the rules but “the question is whether the leader can get 50 Democrats, not 49 or 48, to sustain that motion.” . . . . 

For the first time, Reid has the strong backing of Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), who had been leery about weakening the power to filibuster judicial nominees.  

“I’m glad that I’m not the only one out talking about this,” Reid said last week when asked about the possibility of rules reform. “We have someone who [has] never, ever been upfront on rules changes — that’s Sen. Leahy, who said he’s really disturbed about what’s going on.” 

Leahy’s support might help Reid persuade wavering colleagues to strip Republicans of the power to filibuster judicial picks. 

“He has the backing of Sen. Leahy, which is huge for this. That’s a really important step,” said a Senate Democratic aide.  

Reid came close to triggering the so-called nuclear option in July after Republicans held up Obama’s picks to executive branch agencies such as the Consumer Financial Protection Bureau, the Environmental Protection Agency and the National Labor Relations Board. He backed off the threat after Republicans allowed the nominees to go through. . . . .

Reid came close to triggering the so-called nuclear option in July . . . 

The Huffington Post has statement from Biden:

Vice President Joe Biden, long a defender of tradition in the United States Senate, said Thursday it might be time to change the institution's rules after Republicans blocked yet another one of President Barack Obama's nominees. 

"I think it's worth considering," Biden said after the GOP nixed the appointment of Rep. Mel Watt (D-N.C.) to oversee the Federal Housing Finance Agency. . . . 

Democrats have recently been pushing gutting the filibuster over the debt limit.

Liberals said Tuesday that there may be no other way out of a debt ceiling crisis than to invoke — or at least threaten to employ — the so-called nuclear option, an enormously contentious move that would allow the party to raise the national borrowing limit with 51 votes rather than 60. 

Such a move would prompt howls of outrage from Republicans and could have dramatic implications for the future of the Senate. But it would allow Senate Democrats to pass a bill raising the borrowing limit through 2014 and shift the burden to the House GOP before a potentially devastating default on the $16.7 trillion national debt on Oct. 17. . . . 

Strangely, it isn't clear what the benefit is for Democrats to change this given that the Republicans control the House. 

UPDATE: The National Journal indicates that it looks as if the Democrats now have the votes to push through the "nuclear option."

An interesting note on the judicial confirmation battles

Ramesh Ponnuru has this point over at Bloomberg:

One of the vacancies Democrats are trying to fill used to be held by John Roberts. After he became chief justice, Bush nominated the impeccably qualified Peter Keisler for the spot. The Democrats blocked him, and the seat has gone empty ever since. A reasonable case can be made against a minority party blocking judicial nominations, or for it. What can’t reasonably be argued is that Democrats should be able to use the tactic to keep a judgeship open until they have the power to fill it with a liberal, at which point Republicans have to stand down. . . .

Obama is bragging about dramatically changing the federal courts

From the Examiner:

While speaking at a DSCC fundraiser in Texas on Wednesday, President Obama said the administration is "remaking the courts," Twitchy reported Thursday. . . . . 

"As Lisa mentioned, we are remaking the courts. I know that we’ve got some lawyers here, and here in Texas sometimes people feel a little frustrated about the pace of appointments here in Texas. But you should know that in addition to the Supreme Court, we’ve been able to nominate and confirm judges of extraordinary quality all across the country on federal benches. We’re actually, when it comes to the district court, matching the pace of previous Presidents. When it comes to the appellate court, we’re just a little bit behind, and we’re just going to keep on focused on it," he added.  

He also told those in attendance that he is "intent on squeezing every last bit of possibility to make sure that we’re moving this country forward." . . . .

Latest Fox News piece: Obama, other Democrats all wrong about Republican obstruction of judicial nominees

My newest piece at Fox News starts this way:

The Senate Judiciary committee will vote on either Wednesday or Thursday whether to confirm Robert Wilkins, President Obama’s nominee to the prestigious D.C. Circuit Court of Appeals --  the court often referred to after the Supreme Court as the “second highest court” in the country. 

President Obama has spared little rhetoric in threatening Republicans should they dare defeat or delay Wilkins’ nomination. When Wilkins was nominated in June, Obama accused Republicans of being “cynically” engaging in “unprecedented”obstruction of judicial nominations. 

Democrats claim that any fair consideration would guarantee Wilkins’ quick confirmation. After all, as they point out, Wilkins was quickly confirmed as a District Court judge in 2010 “without opposition.” 

But it might not be such smooth sailing, for after getting on the bench, Wilkins has made a number of controversial rulings -- recently striking down Texas' voter photo ID law and upholding aggregate campaign finance donation limits. 

The president and other Democrats complain that Obama’s nominees are suffering the most difficult confirmations ever. Many newspaper articles agree, such as in theNew York Times, USA Today , and the Congressional Research Service. 

But, these numbers are fundamentally flawed. . . .

Continue here.

Boyden Gray on how Obama is trying to pack the D.C. Circuit court

From the Washington Times:

Last week the SenateJudiciary Committee approved the nomination of Nina Pillard to the U.S. Court of Appeals for the D.C. Circuit. That party-line vote followed the committee’s hearing earlier this month on District Judge Robert Wilkins‘ nomination to the D.C. Circuit, the committee’s party-line vote in favor of Patty Millett’s nomination in August, and theSenate’s confirmation of the D.C. Circuit’s newest judge, Sri Srinivasan, in May. If this sounds like an unusual flurry of activity for one tiny court, that’s because President Obama has made tilting the court’s political balance a high priority for his second term. 

It’s an unfortunate strategy for several reasons. 

First, the D.C. Circuit doesn’t need more judges. According to one judge on the court, “[I]f any more judges were added now, there wouldn’t be enough work to go around.” That sentiment is confirmed by statistics provided by Chief Judge Merrick Garland, a Clinton appointee to thecourt. Over the past decade, the number of argued cases per active judge has fallen, and the court’s six senior judges do more work than their counterparts on other courts, who tend to be older. . . .

New piece at the Daily Caller: "No, Obama’s judicial nominees don’t have unusually long confirmation times"

My piece starts this way:

Sparks will likely fly today during Robert Wilkins confirmation hearing to the prestigious D.C. Circuit Court of Appeals, or as President Obama calls it, “the second highest court in the country.“ Adding fuel to the fire, when Wilkins was nominated in June President Obama claimed that Republicans were “cynically” engaging in “unprecedented“ obstruction of judicial nominations. Further, Democrats keep threatening to change Senate rules, doing away with the filibuster for judicial nominations, if they don’t get their way. 

Obama is hardly the first president to complain that his nominees are discriminated against. During the Clinton administration, Attorney General Janet Reno accused the Republican-controlled Senate of an “unprecedented slowdown” in confirming new federal judges. During George W. Bush’s first term in office, Republicans, such as Senator Orrin Hatch, complained of “inexcusable” delays. . . .

Dems claim unprecedented obstruction of Obama's nominees by Republicans in Senate

Seriously?  I have a book coming out at the beginning of June that explains that this isn't true.  In the meantime I will simply mark the claim here.  From the NY Times:

There is no historical precedent for the number of cabinet-level nominees that Republicans have blocked or delayed in the Obama administration. Chuck Hagel became the first defense secretary nominee ever filibustered. John Brennan, the C.I.A. director, was the subject of an epic filibuster by Senator Rand Paul. Kathleen Sebelius and John Bryson, the secretaries of health and human services and commerce, were subjected to 60-vote confirmation margins instead of simple majorities. Susan Rice surely would have been filibustered and thus was not nominated to be secretary of state. . . .

Despite not nominating many judges, Obama will soon give Democrats large majorities among judges

With four years of Democratic nominees still to come, the courts are evenly divided.

the percentage of Republican-appointed circuit court judges only dropped from 61.3 percent to 51.8 percent, and the percentage of Republican-appointed district court judges only dropped from 58.6 percent to 53.6 percent . . . .

The news article that this is from emphasizes that Republicans still control a majority of judges on the courts, though they have a minority of the much more important Appeals Court judges.  Obama could easily appoint more than 200 more of the 865 district and appeals court judges over the next four years.  The information from the left wing Alliance for Justice that the above article in the Washington Times relied on is available here.