It’s bad enough that all laws and ordinances in DC are subject to the approval of Congress. Just try to imagine a local ordinance in your hometown needing the seal of approval from a Ted Cruz or Rick Scott. This is another reason DC desperately needs to become a state. Even under Democratic control, the Senate wasn’t able to confirm a single DC court judge in all of 2021. It was not from lack of trying, and judges have gotten creative in ways to increase their workload (fast-tracking cases, brief rulings , etc.); but the Republicans are obstructing badly needed, nonpartisan judges by abusing DC’s unique status—despite the suffering they are inflicting upon Washington’s citizenry.
Prior to 1970, DC wasn’t even allowed to have local courts. Local governance was the sole responsibility of the federal courts. This created such a bottleneck that Congress passed the District of Columbia Court Reform and Criminal Procedure Act of 1970, which established a superior court and a court of appeals to assume for local jurisdiction. Due to the district’s unique nature, all candidates had to be selected by the US president, with advice and consent from the US Senate. In 1977, the District of Columbia Judicial Nomination Commission was created to recommend candidates for judicial appointment to the president.
How it’s supposed to work is pretty straightforward: When a vacancy occurs, the DC Judicial Nomination Commission can take no more than 15 weeks to recommend three candidates to the president of the United States. The president then has 60 days to choose one of those candidates and submit their name to the Senate for confirmation. If the president doesn’t choose a name after 15 weeks, then the commission can nominate one.
The selection is sent to the Senate Homeland Security and Governmental Affairs Committee for consideration. There’s no timetable at this point, but if a candidate makes it out of the committee, the final step of the process is to have the nomination sent back to the full Senate for confirmation. It is during this last step where the process has completely broken down, with the nominees languishing until they are given that final Senate vote.
The commission cannot force the Senate to act. In fact, the Senate can, and has, allowed nominees to languish for years. Right now, there are vacancies going back a full eight years, which coincides with when the Republicans, under Mitch McConnell, took over the Senate. Although both parties can point to the other and lay blame, the truth is that this is primarily due to the Republican philosophy of obstruction to candidates nominated by Democrats.
When Republicans won the Senate in 2014, Mitch McConnell, out of pure spite, led filibusters for every single judicial nominee. This slowed nominations to a crawl, with McConnell confirming the fewest number of judges since Harry Truman. In 2016, when the Democrats lost the presidency, McConnell feverly worked to completely remake the federal by ramming through as many unqualified, young, right-wing judges as fast as he could. Meanwhile, as the vacancies in the apolitical DC courts started racking up, McConnell completely ignored them.
Now that Democrats finally have a majority, albeit a razor-thin majority, they are faced with a wave of federal vacancies from judges who held off retirement because they didn’t want to be replaced by one of Trump’s radicals. Democrats have been forced to prioritize these federal nominees to fill the vacancies while they have the chance, and they have been pushing them through at a rapid pace not seen since President Kennedy. However, it came at a cost, as not one judge was able to be confirmed for DC last year.
In addition, Democrats are being forced to spend a lot of time trying to get through executive nominations that should be noncontroversial. Even essential diplomatic posts have been blocked by an arbitrary GOP block. For the first year of Trump’s presidency, the Senate had already confirmed 40 foreign ambassadors and two-thirds of national-security positions. For Biden, only nine ambassadors and one-third of national-security positions have been filled.
Unfortunately, the Democrats now have no choice but to act. DC’s judicial system is collapsing. By forcing all judges, even local judges, to go through the US Senate for approval, there is a severe bottleneck unlike any it has seen before. As a result, DC residents are suffering while the seated judges and their staff are extremely overworked.
Since this is a known crisis and the judges are apolitical, the Democrats recently attempted to confirm all DC nominees by seeking unanimous consent. This has typically been how DC judges have been confirmed since all the nominees are already vetted by the DC Judicial Nomination Commission that was set up by Congress. None of the judges are controversial or radical, and in fact, most are former magistrate or administrative law judges.
Unfortunately, my senator from Florida, Rick Scott, blocked unanimous consent by falsely claiming they were all “radical far-left nominees.” He’s completely lying, as they were picked by the nonpartisan nominating commission, but that doesn’t matter.
This is not the first time Rick Scott has obstructed bipartisan efforts for badly needed government responses just for a cheap political stunt. He obstructed the nominee to lead the Cybersecurity and Infrastructure Security Agency (CISA) during a period of cyber-attacks because he was mad that Biden hadn’t visited the US-Mexico border. He also blocked all nominees for the Departments of Transportation and Commerce during the supply chain crisis unless Democrats agreed to hold a hearing—on the supply chain crisis. Just last month, Scott blocked unanimous consent on a badly needed postal reform bill because of a minor clerical errorforcing it to go back through an elaborate procedural process.
Democrats, however, have a responsibility to act because of this Republican-manufactured crisis. Majority Leader Chuck Schumer could press the nominations to a vote by invoking cloture, which takes up valuable floor time. However, Schumer seems to be reluctant on his vow to hold the weekend and late-night sessions over to push through all the nominations being blocked by the GOP. Schumer needs to act now and do whatever it takes to get these nominations through—especially if the GOP seems likely to take over after the midterms.
To his credit, with over a quarter of the Superior Court seats unfilled, along with a third of the Court of Appeals seats, Schumer did finally take some action last month. On Feb. 2, the Senate was able to confirm three judicial nominees using an arduous roll call vote due to Rick Scott’s shenanigans. If he hadn’t acted by June, the vacancies on the Court of Appeals would have been increased to half due to mandatory retirements.
The following are the three new DC judges. I challenge you to find me anything in their bios that could be considered “radical,” unless the concept of being a minority or immigrant and a judge is “radical.”
Rupa Ranga Puttagunta: She was a DC administrative law judge for the DC Rental Housing Commission and also represented indigent criminal defendants and domestic violence victims pro bono. She is now the first Asian American and Pacific Islander (AAPI) woman to serve as a judge on the Superior Court for the District of DC
Kenia Seoane Lopez: She was a magistrate judge on the Superior Court who worked as an assistant attorney general in the DC Attorney General’s Office’s child support division. She is now promoted to a judge on the Superior Court for the District of DC, the first Cuban immigrant to serve in this role.
Sean C. Staples: He was a magistrate judge in the Superior Court’s criminal and domestic violence divisions. He previously worked in family court presiding over abuse and neglect cases. He is now confirmed as a judge on the same court.
Schumer has begun procedural motions for four additional DC judicial nominees. There are still plenty left, however; and it is unclear if the Democrats will get to all of them before the end of the year. If the Republicans do win the Senate in November, you can expect these DC confirmations to grind to a halt.
The impact would be devastating, because courts are obligated to find ways to meet speedy-trial rules, at least in criminal cases. Violations of this rule, which is based on legislation stemming from the 6th Amendment, means that any conviction and sentence must be wiped out, and any dismissed charges if the case has not reached trial in a reasonable timeframe.
Due to the severe overload of cases, and lack of judges, a DC Superior Court judge ruled for a temporary suspension of the “speedy trial” rule until April 8, 2022. This is not sustainable. Furthermore, the backlog is so extensive that even cases that finally get before a judge are simply not getting the attention they deserve.
Although the district’s lone, nonvoting representative, Eleanor Holmes Norton, applauded Schumer’s effort to move on DC judges on top of everything else Democrats are trying to fix, she correctly said that the current process makes DC the “bottom of the barrel.” She is rightfully angry and has demanded reform. She drafted legislation that would allow DC judicial nominees to be automatically confirmed after a 30-day congressional review period if lawmakers don’t object during that timeframe. Republican grandstanders could still gum up the works, but at least the onus will be on them to go out of their way to do it. This also isn’t a radical idea: This is currently how all DC legislation is reviewed by Congress in their affairs role as the final arbitrator for all their local.
Washington, DC citizens suffer enough indignities without statehood. The population is larger than Wyoming and Vermont, and residents pay more federal taxes than 21 out of the 50 states, but they still don’t have legal representation in Congress. Worse, since the local government can’t do much of anything without congressional approval, the population is forced to suffer in silence. DC Council member Charles Allen is justifiably livid over these unnecessary and completely political delays. “Congress should grant the District statehood and get out of the business of running a local jurisdiction in its spare time.”
I couldn’t agree more.