For 2305 today

Checks and balances:

- Cruz kicks off Internet oversight countdown with subcommittee hearing.

Texas Republican Sen. Ted Cruz today announced that he’ll hold a Senate subcommittee hearing to explore the “dangers” of an Obama administration plan to turn over technical internet oversight to a nonprofit just weeks before the plan is to take effect.

There are just 23 days left until the U.S. Commerce Department cedes oversight of the technical functions that make the internet work to the Internet Corporation for Assigned Names and Numbers (ICANN). But the plan is not guaranteed to go through, given that Republicans, led by Cruz, continue to fight it.

Cruz’s latest move is scheduling a Sept. 14 hearing of the Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts, which he chairs, to investigate the “possible dangers” of the transition plan, he announced Sept. 7.

- Click here for the subcommittee's website.


And more checks and balances:

- 5 Texas judge nominees have broad support but won't be confirmed anytime soon.

Sens. John Cornyn and Ted Cruz lavished praise on them. President Barack Obama said they had displayed an “unwavering commitment” to justice and integrity. They are desperately needed in Texas, where 10 long-standing vacancies on the federal bench have created a lengthy backlog of cases.

But when will the five recent nominees to serve as Texas district judges get a confirmation vote in the Senate?

“We’re going to have to work that out,” Cornyn said Wednesday. “If we can’t get it done before the election, then perhaps after the election that’s something we could work on.”

The Senate Judiciary Committee held hearings for the five nominees, ostensibly providing hope that the long-open vacancies could soon be addressed.

Texas has more judicial openings than any other state. All 10 have been designated “emergencies” by the federal government, based on the backlog of cases each district faces, and seven have been empty more than a year.

- Click here to see the hearing - if you wish.
- Click here for American Association for Justice - which was mentioned in the article.
- Judicial Confirmation and the Constitution.


A story about federalism:

- Closure of private prisons could hit Texas in pocketbook.

Thousands of jobs and millions of dollars in lucrative government contracts could be in jeopardy in Texas with the Department of Justice's decision to phase out the use of privately run prisons.

Of the 14 private prisons facing the loss of federal contracts, five are in Texas - the most of any state. The impact will be felt not only in prison yards but also in the tax rolls and cash registers of small towns and local communities.

"We are very concerned about what is going to happen," said Howard County Judge Kathryn Wiseman in Big Spring, where the GEO Group employs 480 people at its detention facility.

Wiseman said she fears that nearly all the jobs at the prison will be lost when the company's federal contract expires in March.

"These are our friends and neighbors; these are people who coach Little League baseball and belong to our civic organization," she said. "They will leave a hole not just in our economy because they pay taxes, but in our community."

The Department of Justice recently directed the Bureau of Prisons to phase out its business with private corporations as contracts expire over the next five years. The Department of Homeland Security followed the move by announcing it would also evaluate its partnerships with private companies in running more than two dozen immigrant detention centers.

- Click here for the website of the Federal Bureau of Prisons.
- Review of the Federal Bureau ofPrisons’ Monitoring of Contract Prisons.


And one more about federalism.

- In Debate Over ‘Sanctuary Cities,’ a Divide on the Role of the Local Police.

Mr. Trump is coming down on one side of a vigorous partisan debate over the degree to which local law enforcement should be involved in enforcing immigration laws. There is a deep split among law enforcement officials, not to mention elected officials. Just last year, after a young woman was shot by an immigrant here illegally with a criminal record who had been released by the authorities in San Francisco, the Republican-led House voted to withhold some federal funding from jurisdictions that shield undocumented immigrants from federal officials. In the Senate, Democrats this summer blocked a similar bill, which the White House had vowed to veto.

In limiting cooperation with the federal immigration authorities, some local law enforcement officials contend that they are making their jurisdictions safer by encouraging undocumented immigrants to take the risk of coming forward to report crimes. But those who see immigration violations as serious offenses contend that such policies lead to criminality.

The issue has bedeviled the Obama administration for years. In his first term, President Obama expanded nationwide a program allowing the Department of Homeland Security to receive the fingerprints of every person booked by the state and local police. After many immigrant communities rebelled, the administration canceled some of its efforts in 2014, and replaced them with a single, less intrusive one, hoping to court big cities to cooperate rather than to coerce them.

From mySA: Federal judicial vacancies in Texas still an emergency

A reminder that Texas - as the rest of the states - has a dual judicial system. On is elected, the other is appointed.

- Click here for the article.

A year ago today on this page, I criticized the troubling obstructionism by U.S. Sens. John Cornyn and Ted Cruz of Texas.

They have repeatedly failed to fill vacated seats in our state’s federal appellate and district courts, including their opposition to potential nominations of qualified district judges originally recommended by Republicans.

In his response letter, Sen. Cornyn objected to my comments and pointed out that he is working hard to fill these seats and to “ensure Texas has some of the best and brightest judges in these important posts.” 

It has now been a year since Sen. Cornyn’s response. Our state’s federal judiciary is in abysmal shape, as there are still two vacancies on the 5thCircuit Court of Appeals and 10 vacancies — three more than last year — in Texas’ U.S. District Courts. The oldest vacancy goes back to 2011. Additionally, several federal judges are expected to retire in the next few years.

In comparison, there are no appellate vacancies under Missouri and Louisiana, both part of the 5th Circuit. Missouri does not have a U.S. District Court vacancy. Louisiana has three, with one vacated a month ago and two in 2015, both of which have already had Senate hearings.

The Judicial Conference of the United States, headed by Chief Justice John Roberts, has marked all the Texas vacancies as a “judicial emergency,” accounting for 29 percent of the judicial emergencies nationwide — a feat not achieved by any other state. This designation implies that the courts’ current caseload is both excessive and unmanageable. Even if these seats are filled tomorrow, the conference has asked Congress to add many new judgeships to the federal district courts in Texas.

- Click here for Wikipedia's entry on The Judicial Conference of the United States.

From Wikipedia: Judicial appointment history for United States federal courts

- Click here for a terrific graph outlining presidential appointments to the Supreme Court term by term.

From the NYT: G.O.P. Senators Say Obama Supreme Court Pick Will Be Rejected

The party doubles down.

- Click here for the article.

Senate Republican leaders said Tuesday that there would be no confirmation hearings, no vote, not even a courtesy meeting with President Obama’s nominee to replace Justice Antonin Scalia, all but slamming shut any prospects for an election-year Supreme Court confirmation.

Together with a written vow from Republicans on the Senate Judiciary Committee that they would not hold any confirmation hearings, the pledge was the clearest statement yet from the Senate’s majority party that it would do everything it can to prevent Mr. Obama from shifting the ideological balance of the nation’s high court.Senator Mitch McConnell of Kentucky, the majority leader, urged Mr. Obama to reconsider even submitting a name.

“This nomination will be determined by whoever wins the presidency in the polls,” Mr. McConnell said. “I agree with the Judiciary Committee’s recommendation that we not have hearings. In short, there will not be action taken.”

For a look at the politics of this: Mitch McConnell Plays His Best Card.

From the Washington Post: Republican governor of Nevada Brian Sandoval being considered for Supreme Court

He was not on any initial list of nominees I saw, but his selection makes sense politically.

- Click here for the article.

The White House is considering Nevada Gov. Brian Sandoval, a Republican centrist, as a potential nominee for the vacant seat on the Supreme Court, NBC News has confirmed.
Sandoval, a former District Court judge and state attorney general, was the first Latino candidate elected to statewide office in Nevada.

While he is a Republican, Sandoval's record does match President Barack Obama's on many key issues. He has said he supports the Supreme Court's same sex marriage decision of last year and backs abortion rights.

However, Sandoval also signed into law last year a measure that exempts school construction projects from having to pay contractors wages considered industry standard in the area. While he hailed the move as a cost cutting measure, labor unions rallied to decry the effort.

From the NYT: G.O.P. Senators Say Obama Supreme Court Pick Will Be Rejected

- Click here for the article.

Senate Republican leaders said Tuesday that there would be no confirmation hearings, no vote, not even a courtesy meeting with President Obama’s nominee to replace Justice Antonin Scalia, all but slamming shut any prospects for an election-year Supreme Court confirmation.

Together with a written vow from Republicans on the Senate Judiciary Committee that they would not hold any confirmation hearings, the pledge was the clearest statement yet from the Senate’s majority party that it would do everything it can to prevent Mr. Obama from shifting the ideological balance of the nation’s high court. Senator Mitch McConnell of Kentucky, the majority leader, urged Mr. Obama to reconsider even submitting a name.

“This nomination will be determined by whoever wins the presidency in the polls,” Mr. McConnell said. “I agree with the Judiciary Committee’s recommendation that we not have hearings. In short, there will not be action taken.”

From the New York Times: Supreme Court Nominees Considered in Election Years Are Usually Confirmed

Which argues against a point made by some.

- Click here for the article.

Since 1900, the Senate has voted on eight Supreme Court nominees during an election year. Six were confirmed. But several of those were for seats that had become vacant in the previous year.

The Senate has never taken more than 125 days to vote on a successor from the time of nomination; on average, a nominee has been confirmed, rejected or withdrawn within 25 days. When Justice Antonin Scalia died, 342 days remained in President Obama’s term.

The graphic in the article is worth your visit.

From the Congressional Research Service: Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate

Everything you could possibly want to know about the process in one big big source.

- Click here for it.

Here's the summary:

The appointment of a Supreme Court Justice is an infrequent event of major significance in American politics. Each appointment is important because of the enormous judicial power the Supreme Court exercises as the highest appellate court in the federal judiciary. Appointments are infrequent, as a vacancy on the ninemember Court may occur only once or twice, or never at all, during a particular President’s years in office. Under the Constitution, Justices on the Supreme Court receive lifetime appointments. Such job security in the government has been conferred solely on judges and, by constitutional design, helps insure the Court’s independence from the President and Congress.

The procedure for appointing a Justice is provided for by the Constitution in only a few words. The “Appointments Clause” (Article II, Section 2, clause 2) states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court.” The process of appointing Justices has undergone changes over two centuries, but its most basic feature — the sharing of power between the President and Senate — has remained unchanged: To receive lifetime appointment to the Court, a candidate must first be nominated by the President and then confirmed by the Senate. Although not mentioned in the Constitution, an important role is played midway in the process (after the President selects, but before the Senate considers) by the Senate Judiciary Committee.

On rare occasions, Presidents also have made Court appointments without the Senate’s consent, when the Senate was in recess. Such “recess appointments,” however, were temporary, with their terms expiring at the end of the Senate’s next session. The last recess appointments to the Court, made in the 1950s, were controversial, because they bypassed the Senate and its “advice and consent” role.

The appointment of a Justice might or might not proceed smoothly. Since the appointment of the first Justices in 1789, the Senate has confirmed 120 Supreme Court nominations out of 154 received. Of the 34 unsuccessful nominations, 11 were rejected in Senate roll-call votes, while nearly all of the rest, in the face of committee or Senate opposition to the nominee or the President, were withdrawn by the President or were postponed, tabled, or never voted on by the Senate. 

Over more than two centuries, a recurring theme in the Supreme Court appointment process has been the assumed need for excellence in a nominee. However, politics also has played an important role in Supreme Court appointments. The political nature of the appointment process becomes especially apparent when a President submits a nominee with controversial views, there are sharp partisan or ideological differences between the President and the Senate, or the outcome of important constitutional issues before the Court is seen to be at stake.

For briefer descriptions:

- Appointment and confirmation to the Supreme Court of the United States.
- How does a president select a Supreme Court nominee? Here’s how.

Who might Obama nominate?

Politico reports that Obama will likely nominate someone to replace Scalia "in due time once the Senate returns from their recess."

A few commentators speculate on who this person might be

- Vox: Who will Obama choose to replace Antonin Scalia? Here are 7 of the strongest candidates.
- The Daily Beast: Can Obama Take Over the Supreme Court?
- CNN: Whom could President Obama nominate to replace Justice Antonin Scalia?
- The Monkey Cage: Who will Obama nominate to replace Scalia? Here’s how to think about it.
- USA Today: Who could replace Scalia? Here are 10 names.

From Ballotpedia: Judges appointed by Rick Perry

We go over this in 2306, but although Texas has an elected judiciary the Texas Constitution allows the governor to appoint judges in case of vacancies - with the confirmation by the Texas Senate. This has led to an unusual custom. Judges have a tendency to resign their offices prior to the end of their terms so that the governor can appoint their replacement. Judicial elections are generally non-competitive and low information, so the appointees tend to be elected to full terms.

In his 14 years in office, Rick Perry had a greater stamp on the judiciary than any of hos predecessors.

Ballotpedia lists them here.