• 12% of Judiciary Is Empty

    The Senate will soon return from its August recess. What kind of judicial-confirmation progress should we expect during the rest of the 116th Congress?

    Senate Democrats are sure to claim that the so-called “Thurmond Rule” requires the confirmation process to shut down early next year. Here’s a close look at this claim; it’s not a rule, and it did not originate with Sen. Strom Thurmond, R-S.C.

    In fact, even calling it an informal tradition is too strong.

    A more important consideration is also the most practical: the work that needs to be done filling judicial vacancies across the country. As if it needs to be said, the judiciary cannot do its work without judges.… Read More...

  • Senate Picks Up the Pace in Confirming New Judges

    Senate Republicans used the so-called nuclear option April 3 to eliminate one of the Democrats’ tactics for slowing down the process for considering President Donald Trump’s nominees.

    In a column here at the time, I wrote that Republicans “need to seize this opportunity so that the government that Americans elected in 2016 can function as it should.”

    Let’s look at the record for the three steps in the presidential appointment process: nomination, Senate committee consideration, and full Senate approval.

    When Trump took office in January 2017, judicial vacancies had jumped into triple digits for the first time in six years. They are actually 20 percent higher today.… Read More...

  • Senate Confirmed Trump’s 100th Judge. Let’s Put That in Perspective.

    Senate Confirmed Trump’s 100th Judge. Let’s Put That in Perspective.

    Last week, the Senate confirmed the 100th federal judge nominated by President Donald Trump.

    That’s a nice, round number, and it might sound like a significant milestone, but let’s put that number in perspective.

    Trump achieved that mark ahead of some presidents, but behind others. In fact, the 849 days it took for Trump is almost exactly the average 848 days it took the previous five presidents.

    But that’s really where the similarities end.

    President Bill Clinton, for example, appointed 100 judges in his second year alone, with a Senate of his own party. President George W. Bush hit the 100 mark five months earlier than Trump with a Senate controlled by the opposition party.… Read More...

  • Senate Republicans Have Triggered the ‘Nuclear Option.’ They Are Completely Justified.

    Senate Republicans Have Triggered the ‘Nuclear Option.’ They Are Completely Justified.

    Most people agree that our system of government depends on an informed, participating citizenry. It can be hard enough to understand what Congress is doing, but it’s even harder to grasp how Congress operates.

    And yet, rules that govern how things get done often determine what those things end up being. As such, it’s very important that Americans understand how the Senate majority just changed—and hopefully, improved—the process for debating the president’s nominations.

    Senate Republicans on Wednesday, in a pair of 51-48 votes almost entirely along party lines, revised one part of that process. The move will expedite the confirmation process for President Donald Trump’s district court nominees and sub-Cabinet posts at federal departments and agencies.… Read More...

  • Appeals Court Upholds Housing Allowance Tax Exemption for Clergy

    Appeals Court Upholds Housing Allowance Tax Exemption for Clergy

    The Internal Revenue Service has a rule allowing ministers to exclude the amount of a housing allowance from their taxable income.

    In December, I wrote about a case in which an atheist group challenged that rule, claiming it’s an unconstitutional establishment of religion.

    On March 15, a three-judge panel of the U.S. Court of Appeals for the 7th Circuit disagreed and unanimously upheld the rule.

    Since Congress imposed an income tax in 1913, the rules for what constitutes “income” have become increasingly complex.

    What about when an employer provides housing or compensates an employee for its cost? In 1923, Congress enacted a statute excluding a church-provided parsonage from a minister’s taxable income and later extended that to housing allowances.… Read More...

  • By Democrats' Own Standard, We Have a Judicial Vacancy Crisis

    By Democrats’ Own Standard, We Have a Judicial Vacancy Crisis

    Words like “crisis” are in the eye of the political beholder. But it’s hard to pick a better one to describe the current state of vacancies in the federal courts.

    Today, 126 positions on the U.S. District Court and U.S. Court of Appeals are vacant. In fact, we’re in the longest period of triple-digit vacancies in 25 years. But the raw numbers don’t tell the full story, so, since the partisan environment is so bitter, let’s apply some standards advocated by Democrats to put these numbers in perspective.

    Vacancies today are 52 percent higher than when Sen. Cory Booker, D-N.J., declared a “vacancy crisis” in July 2016.

  • Before Congress Adds More Judges, Let's Fill the Current Vacancies

    Before Congress Adds More Judges, Let’s Fill the Current Vacancies

    The 115th Congress is wrapping up its legislative business. What will the 116th bring?

    One likelihood is a bill to expand the federal judiciary. Here’s how Congress should handle it.

    Two months ago, retiring Reps. Darrell Issa, R-Calif., and Bob Goodlatte, R-Va., introduced H.R.6755, the Judiciary Reforms, Organization and Operational Modernization Act of 2018. Title II incorporates an earlier recommendation of the Judicial Conference to create 52 new judgeships on the U.S. District Court and convert eight temporary district court judgeships to permanent status.

    It is impossible to know whether the judiciary needs more judgeships, when nearly 16 percent of the judgeships it already has are empty.

  • Where Trump’s Judicial Picks Stand at the End of This Congress

    Where Trump’s Judicial Picks Stand at the End of This Congress

    The 115th Congress is almost finished, with the Senate expected to adjourn by Dec. 14. What does that mean for the process of filling positions in the judicial and executive branches?

    First, here’s how it usually works. The majority and minority typically agree to confirm a group of nominees in the last few days of a Congress. For example, the Senate confirmed 19 judges in the closing days of the 111th Congress under President Barack Obama, 20 judges at the end of the 107th Congress under President George W. Bush, and 28 judges when the 103rd Congress finished under President Bill Clinton.

  • Capping Off the Year With More Impartial Judges

    Capping Off the Year With More Impartial Judges

    Rumors swirl that the Senate, originally set to adjourn on Dec. 14, may pack it up a week earlier. Since Majority Leader Mitch McConnell, R-Ky., said after the election that confirming judges would be his “top priority” for the rest of the 115th Congress, let’s take stock.

    We are in the longest period of triple-digit judicial vacancies since the early 1990s, when Congress created 85 new judicial positions. More than half of the current vacancies are designated “judicial emergencies” because the positions have been open so long that they’re worsening judicial caseloads.

    Vacancies today are 13 percent higher than when President Donald Trump took office.

  • Senate Election Results Give Republicans Opportunity to Confirm More Judges Faster

    Senate Election Results Give Republicans Opportunity to Confirm More Judges Faster

    The 2018 election results are encouraging, if for no other reason than that more progress can be made in filling judicial vacancies.

    First, a snapshot of where things stand right now.

    President Donald Trump has appointed almost 40 percent more nominees to life-tenured federal courts than the average for his five predecessors of both parties at this point. The pace of the Senate Judiciary Committee’s hearings for judicial nominees is also way ahead of the usual pace.

    The Senate’s record for confirming those nominees, however, is not as robust. Previous posts (see here, here, and here) have detailed the strategies by Senate Democrats to make the confirmation process cumbersome rather than efficient.

  • 3 Takeaways From Day 3 of Kavanaugh's Confirmation Hearings

    3 Takeaways From Day 3 of Kavanaugh’s Confirmation Hearings

    After a marathon 13 hours of questioning on Wednesday, Supreme Court nominee Brett Kavanaugh’s confirmation hearings continued Thursday with more questions from the senators.

    Protesters continued to punctuate the senators’ questions throughout the day, and a dozen or so of the girls Kavanaugh has coached on basketball teams showed up in the afternoon to support “Coach K.”

    Here are the key takeaways from Kavanaugh’s final day before the Senate Judiciary Committee.

    1. Booker’s ‘disclosed’ documents were a nothing burger—and a publicity stunt.

    The morning began with the dramatic announcement by Sen. Cory Booker, D.-N.J., that “I am going to release [an e-mail from Kavanaugh’s record] about racial profiling, and I understand that the penalty comes with potential ousting from the Senate.” That decision earned Booker a stern rebuke from some Republican senators.

  • 3 Takeaways From Day 1 of Kavanaugh's Confirmation Fight

    3 Takeaways From Day 1 of Kavanaugh’s Confirmation Fight

    The Senate Judiciary Committee kicked off its hearing for Supreme Court nominee Brett Kavanaugh today, and it was no peaceful outing.

    The first day of a confirmation hearing is usually placid, with committee members and the nominee offering fairly predictable opening statements before the nominee begins answering senators’ questions on Day Two.

    No such luck.

    Chairman Chuck Grassley, R-Iowa, was 30 seconds into his first remarks when committee Democrats began demanding that the hearing adjourn or be postponed until the latest set of documents on Kavanaugh’s record could be studied. Repeated interruptions by both Democratic senators and protesters in the audience moved the hearing steadily off-schedule.

  • What to Expect in Kavanaugh’s Senate Hearings

    What to Expect in Kavanaugh’s Senate Hearings

    The Senate Judiciary Committee’s hearing for Supreme Court nominee Brett Kavanaugh begins at 9:30 a.m. on Tuesday, Sept. 4. Here’s what you can expect.

    The committee has 21 members—11 Republicans and 10 Democrats. Sen. Chuck Grassley, R-Iowa, is the chairman and Sen. Dianne Feinstein, D-Calif., is the ranking member, or lead member of the minority party.

    The hearing will last for four days, the same length as seven of the previous 10 Supreme Court nominees. The other three—Justices Stephen Breyer (1994), David Souter (1991), and Anthony Kennedy (1988)—had three-day hearings.

    Day One will kick off with a 10-minute opening statement by each member of the Judiciary Committee.

  • Colorado Cake Baker Turns Tables in Anti-Religious Bias Lawsuit

    Colorado Cake Baker Turns Tables in Anti-Religious Bias Lawsuit

    Jack Phillips owns Masterpiece Cakeshop in Lakewood, Colorado, and is himself a master baker. He’s in trouble with the state of Colorado for declining to create a custom cake for an event because doing so would violate his religious beliefs.

    If that sounds familiar, it’s because Phillips has already taken a similar case all the way to the U.S. Supreme Court, which ruled in his favor on June 4.

    Here’s the background.

    In 2012, Phillips declined the request by a same-sex couple marrying in Massachusetts that he create a custom cake for their reception in Colorado.

    The Colorado Civil Rights Commission, in a ruling affirmed by the state courts, concluded that Phillips violated a state law prohibiting discrimination on the basis of sexual orientation in businesses and other places of public accommodation.

  • Kavanaugh Follows the Law, Even Under the Most Difficult Circumstances

    Kavanaugh Follows the Law, Even Under the Most Difficult Circumstances

    Senate Minority Leader Chuck Schumer, D-N.Y., served on the Judiciary Committee in 2009. During the confirmation for Supreme Court nominee Sonia Sotomayor, Schumer said that even in “hot-button cases,” judges should follow the law even if it results in rulings against so-called sympathetic litigants.”

    That’s an important principle to follow as the Senate considers Judge Brett Kavanaugh’s Supreme Court nomination.

    Sotomayor herself embraced this principle, saying that even if a party’s position is “sympathetic,” the judge must do “what the law requires” and reach “the result [that] is commanded by law.” In other words, the law, not the judge, must determine how each case is decided.