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June 2, 2011

If concerned about border enforcement, why are Arizona's Republican Senators so slow on judicial nominations?

The question in the title of this post is prompted by this new piece at Politico, which is headlined "Arizona weighs judicial woes."  Here are excerpts:

“The situation in Arizona is dire,” the chief federal judge in Arizona, Roslyn Silver, told POLITICO. “We are very frustrated and impatient.”

Since 2009, the Obama administration has been beefing up federal law enforcement in southern Arizona. The influx of 2,000 additional Border Patrol agents on the southern frontier over the past two years has led to a 65 percent boost in criminal cases — many involving illegal immigration.  That surge would clog most federal courts, but Arizona faces an even more serious challenge: three vacancies for federal judges in Tucson.  As a result, the remaining judges there each currently have about 1,200 criminal cases pending.  The 9th Circuit Court of Appeals, which oversees Arizona, recently declared a “judicial emergency,” slowing the speedy trial requirement in criminal cases for the first time since Manhattan federal courts did so after the Sept. 11 attacks.  “They have been underwater even before the unfortunate murder of Judge Roll,” Alex Kozinski, the chief judge for the 9th Circuit, told POLITICO. “Arizona, being a border district, has a very serious case control problem.”

Presidents usually ask home-state senators for names of acceptable district court nominees prior to a nomination, because of a long-standing Senate custom that allows senators to block judicial nominees from their states.

However, The Arizona Republic reported that at the time of Roll’s death, Sens. Jon Kyl and John McCain, both Republicans, had yet to submit any names to the White House. Four months later, there are few public signs of progress.

“We’ve been working with the congressional delegation and other state leadership to identify nominees of great intellect, mainstream views and a commitment to the rule of law. And we should be in a position to nominate in short order,” White House spokesman Eric Schultz said....

The dean of the Arizona House delegation, Democratic Rep. Ed Pastor, said he and his House colleagues have proposed a series of candidates. “Names have been forwarded to the White House that would fill the three current vacancies, starting a year ago and — most recently a couple of months ago — we gave them the last name,” Pastor said. “We’re also wondering what the hell is happening.” Silver said she is loath to guess why the senators and the White House have yet to come to a resolution. “I don’t know what the problem is. I just know there’s a problem.”

“The latest I know is there has been no nomination,” said Kozinski, a Reagan appointee. “This is very disconcerting. I have the impression it took a very long time to get names to the White House. … We’ve pleaded with senators to hurry up the process, and I’m sure they’re doing [the] best they can.”

June 2, 2011 at 08:05 AM | Permalink


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Maybe, just maybe, if the 9th circuit accepted less cases for review and trampled less on states rights they would have more time and there wouldnt be an "emergency". Does anyone have the stats on the percentage of cases accepted for review in the 9th vs other circuits? I would wager they GRANT more reviews AND REVERSE more often than most circuits - and then are again reversed by SCOTUS or en banc.

Here's a real wild idea - Split the 9th circuit. Make the 9th circuit's coverage CA, GU, MP and HI only. Move OK and KS to the 5th. Move AZ and NV to the 10th. And create a 12th circuit for OR, WA, ID, MT.

Simply adding seats to the 9th is a disaster. It needs to get smaller than larger.

Posted by: DeanO | Jun 2, 2011 8:23:39 AM

The 9th Circuit cannot refuse cases like SCOTUS, DeanO. It must consider and resolve every appeal brought to it.

Posted by: Doug B. | Jun 2, 2011 8:47:53 AM

Doesn't have anything to do with the 9th Circuit, DeanO, it's the lack of front-line district judges to handle the cases. Texas' Southern District in the 5th Circuit has the same problem - the Senate won't approve judicial nominees and the backlog of immigration cases is immense. Meanwhile, it now looks like Obama will finish his entire first term without being able to get a single US Attorney confirmed in TX, and who knows how many other states with GOP senators have similarly blocked those appointments. Also, just to mention it, the other impact of immigration cases overwhelming federal courts has been a precipitous decline in the number of white collar, organized crime and public corruption cases in border districts. So we have fewer prosecutions on the border of the type of crimes committed by drug cartels to focus on deporting people who mostly came here to work and/or be with their families. These are seriously misplaced priorities. Any senator who a) blocks judicial nominations and b) complains that the feds won't "secure the border" is a straight-up two-faced demagogue.

Posted by: Gritsforbreakfast | Jun 2, 2011 8:55:28 AM

Thanks Doug, I understnad how the district and circuit courts work. Bad posting language on my part: Grits:I know the front line Judges are burdened, but they are additionally beseiged BECAUSE the 9th circuit reverses and remands again and again. I'd just like to see the reversal percentages and compare to other circuits. If I had to guess more often than not the District Judges Affirm the State courts decisions and then the 9th circuit REVERSES that decision. Sending cases, like AEDPA, back again and again. This takes up serious time.

How Grits thinks it has nothing to do with the 9th circuit is perplexing. If you can show me comparable stats on the other circuits reversal and remand rates I'd be more than willing to correct myself. I agree that REP Senators in TX and AZ are slow-rolling it. A similar game was played by DEM Senators in Blue States under Bush. The 4th circuit was woefully understaffed when Bush left. I recall 3 vacancies on that court alone. Leahy didnt seem too concerned back then. It's politics as usual.

Posted by: DeanO | Jun 2, 2011 12:48:27 PM

DeanO --

On the question why judgeship nominations flow like molasses in January once senators from the opposing party become involved, I suggest we contact Miguel Estrada.

Posted by: Bill Otis | Jun 2, 2011 3:20:45 PM

It has nothing to do with remand rates, DeanO, it's a function of shear volume at the district court level. If you're perplexed then it's because in fact you don't know how the federal courts work. The Fifth Circuit is plenty conservative and Texas' western and southern districts are more backed up than Arizona. Why? Vacant district judge slots. It has nothing to do with appellate courts, AEDPA, etc.. That's just catnip for partisan hacks; it has nothing to do with the backlogs of immigration cases in border states.

Bottom line, deportations require due process which requires judges to process cases. It's really that simple, and Doug is right that anyone concerned about border enforcement is a hypocrite if they simultaneously oppose judicial appointments, especially those like Texas' John Cornyn who does so across the board.

Posted by: Gritsforbreakfast | Jun 2, 2011 3:24:10 PM

just think about how this applies to Sheriff Joe and the impending allegations from the feds :)

Posted by: Phoenix SEO | Jun 10, 2011 11:34:57 AM

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