There’s a lot of talk in the news lately about the so-called “nuclear option” that Harry Reid is considering in the US Senate to change filibuster rules so that a simple majority can pass through President Obama’s nominations.
The longest waiting of President Obama’s appointments actually affects Tucson and the vacancies we have in our federal courts at a time when the more and more cases backlog the judicial system.
January 2011 was a special time in Arizona’s history. It was the month that all the winners of the 2010 election took office, and in Arizona that meant a clean-sweep of all the statewide offices by Republicans who were helped by the beginning of the TEA Party movement after Obama became President in 2009.
This was the beginning of a new year with even more power for people like the author of SB1070 and new Senate President Russell Pearce who now had control of a super-majority in both houses.
The City of Tucson would continue to suffer at the hands of the state, being a so-called progressive stronghold in a red state. January 2011 is when the ban on Mexican American Studies in TUSD took effect by one of State Superintendent Tom Horne’s last acts in office before he would become Attorney General at noon.
As the home of the largest border patrol sector in the nation, the Tucson Federal court system was being bogged down not just by cases, but by two vacancies in the Tucson Federal Courthouse.
Then Judge Roll was assassinated in the Tucson Tragedy of January 2011, bringing the vacancies to three.
“The southern division (of the federal court) is incredibly overloaded,” said Walter Nash, an Arizona defense attorney who deals with federal court cases.
“There’s a definite need for more judges. We’re jammed solid with immigration and drug cases,” Nash said.
And court officials expect it will get worse before it gets better.
“Because we expect some judges to take senior status (retire) next year, that would leave us in even dire circumstances,” said Brian Karth, the clerk for the court.
For much of the past year, the district was under a judicial emergency, declared in January 2011 after then-Chief Judge John Roll was killed in a Tucson shooting spree that killed five others and wounded 13, including then-Rep. Gabrielle Giffords. There were already two vacant judgeships on the court before Roll’s death.
In June of 2011, President Obama nominated two women to fill the first vacancies.
“I am honored to put forward such highly qualified candidates for the federal bench,” President Obama said. “Judge Jennifer Guerin Zipps and Rosemary Márquez will be distinguished public servants and valuable additions to the United States District Court.”
Rosemary Marquez is a highly-qualified Latina that went to the UA and has a law firm in Tucson. But this was Arizona 2011 after all and a year later in 2012 people were beginning to notice that something wrong was going on.
Last June, Obama nominated Marquez and Jennifer Guerin Zipps to fill two of those vacancies. Zipps had a nomination hearing last July and was approved by the full Senate in October, but Marquez’s nomination has not moved.
Before a hearing can be scheduled, home-state senators must submit “blue slips” to the Senate Judiciary Committee allowing the nominee to go forward. But neither Kyl nor Sen. John McCain, R-Ariz., has submitted the paperwork.
Neither Kyl nor McCain responded to requests for comment on the Marquez nomination. But McCain said in March that the senators “do not feel at this time that she’s qualified.”
The American Bar Association’s Standing Committee on the Federal Judiciary, which reviews federal judicial nominees, gave Marquez a unanimous rating of “qualified,” its middle ranking between well-qualified and not qualified.
Marquez has also won the backing of the Hispanic National Bar Association, as well as other southern Arizona lawyers, judges and lawmakers.
“If he (Kyl) has a compelling reason why he doesn’t want to move her, he should be honest with her and with the public,” said Rep. Raul Grijalva, D-Tucson, a Marquez supporter.
Earlier it was noted that there would be more vacancies, and indeed Judge David Bury, the federal judge in charge of TUSD’s Desegregation Case, moved on to senior status at the end of 2012. So now there’s yet another vacancy.
As a recap, this means that two hugely important issues involving TUSD are being handled by judges who are not full-time judges in the Tucson Federal Courts. Judge Tashima from California stepped in after the assassination of Judge Roll to hear the HB2281 case, and Judge Bury is dealing with the TUSD Deseg Case; more evidence that Tucson needs to get more judges appointed!
Last week, ThinkProgress reported that Arizona’s two Republican senators, John McCain and Jon Kyl, are obstructing judicial nominees for their own state, which happens to be one of the most overloaded court system in America. Ian Millhiser wrote how McCain is holding up Rosemary Marquez, a defense attorney nominated by President Obama for the District Court of Arizona. Now, McCain is offering a demonstrably false explanation of why Marquez’ nomination is not moving forward:
When asked about attorney Rosemary Marquez’s appointment, he said her name hadn’t been submitted yet to the U.S. Judiciary Committee.
“We have not seen it submitted by the administration so neither Jon Kyl and I are blocking it. If her name is submitted we will go through the process which is our constitutional responsibility,” said Senator John McCain.
In reality, Marquez’s nomination was submitted to the Judiciary Committee three months ago on June 23, 2011. As the local Fox affiliate notes, Judiciary Committee staff confirmed the nomination with reporters in Arizona, and even provided Marquez’s nominee number (PN724112).
The massacre this year, in which Chief Judge John Roll was murdered in the same shooting that targeted Rep. Gabrielle Giffords (D-AZ), left the district court with three vacancies. The Judicial Conference of the United States believes that eight additional judges are required to keep up with the court’s exploding caseload, where felony case filings alone nearly doubled from 3,023 in 2008 to 5,219 in 2010.
Why is McCain offering false explanations for why Marquez’ nomination is not moving forward?
Eight additional judges are required to keep up with the over 5,000 cases being handled, and yet because of McCain and Flake, we can’t even get one?
Tucson is home to many Mexican Americans, and there is a lack of similar representation on the Federal Courts thanks to this stalling by McCain.
Sen. Patrick Leahy, D-Vt., accused some senators Wednesday of bringing politics into play in judicial nominations.
“It’s damaging to the federal judiciary when they use it as pawns for other things,” said Leahy, the Judiciary Committee chairman. “It’s demeaning to the court and demeaning to the individual.”
Leahy noted that many of Obama’s nominees are minority candidates, which makes delay even more unfortunate.
“I want the courts to be more reflective of the people that come before the courts,” he said.
McCain denied political motives behind the Marquez nomination and praised Kyl for being “very fair and not biased . . . just because it’s a Democratic president.” But he said Wednesday that he believes there are many others who are more qualified for the position than Marquez.
If that’s true, said Tucson attorney Greg Kuykendall, then why not hold a nomination hearing and let the chips fall where they may?
“A host of other people find her to be superbly qualified, so open it up to debate. What’s there to hide?” asked Kuykendall of Kuykendall & Associates.
He said in an earlier interview that there is a lack of Mexican-Americans on the federal bench and that rejecting Marquez is “really a slap in the face.”
“I think it’s really unfortunate that they would hold up a qualified nominee and not allow a vote on her,” he said. “If they think that there’s something unqualified about her, then they should open it up to discussion.”
Things have gotten so bad, that even the conservative Arizona Republic is chiming in with a recent editorial from July 2013 advocating for Marquez to be appointed.
When U.S. District Judge John Roll was gunned down in the massacre that wounded former U.S. Rep. Gabrielle Giffords, he was working to relieve a crisis in Arizona’s federal courts.
Two-and-a-half years later, the shortage of judges that troubled Roll is considered a judicial emergency.
But the Senate has not acted on the two-year-old nomination of Rosemary Marquez, a qualified candidate to fill one of five vacancies in the U.S. District Court of Arizona.
The Senate needs to remember its constitutional duty to vote on President Barack Obama’s judicial nominees. If approved, the court gets a needed judge. If rejected, Obama can appoint another nominee.
Bottom line: The third branch of government needs enough judges to do its job.
Marquez is rated as qualified by the American Bar Association. As required by Senate custom, Arizona’s two senators, John McCain and Jeff Flake, gave the OK for a hearing on her nomination.
Yet Marquez has not had a hearing in the Senate. McCain and Flake recently responded with “no comment” about that.
This qualified nominee isn’t the only person impacted.
The judicial seat she was appointed to fill has been vacant for more than 1,000 days.
On Jan. 8, 2011, the day Judge Roll and five other people were killed in a parking lot outside Tucson, the judge was planning to continue a discussion with Giffords about judicial vacancies and the consequent overload in the courts.
Giffords and then-Sen. Jon Kyl were working with him on this important issue.
Months before his death, Roll sought to have a judicial emergency declared in Arizona, writing to the 9th U.S. Circuit Court of Appeals about “a tsunami of federal felony cases far beyond the management capacity of the four active district judges in the Tucson division.”
His death reduced the number of judges in the Tucson division by 25 percent. His caseload of more than 900 criminal and civil matters was divided among the remaining judges. The emergency designation he sought was granted because the workload exceeded the capacity of judges.
Yet five of the 13 authorized federal district judgeships in Arizona remain vacant.
A shortage of judges creates a barrier to timely access to justice.
The Senate should vote on Marquez. But the sad truth is this may have nothing to do with Marquez.
It’s no secret that judicial nominations are pawns in partisan political games. Supreme Court Chief Justice John Roberts put it bluntly in a 2010 year-end report.
Calling judicial vacancies “a persistent problem,” the chief justice wrote that “each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes.”
Under the Constitution, the Senate’s role is to advise and consent to the president’s judicial nominations. The role is not to stall and block.
Senators need to respond to the judicial emergency in Arizona. A vote on Marquez is a good place to start.