Procedural barriers to court

Senate obstruction of judicial nominees, two Supreme Court vacancies, public apathy and competing priorities all have contributed to the slow pace at which federal court seats have been filled during the Obama administration, experts explained during a lively ACS panel discussion on the judicial selection and confirmation process.

As the number of vacancies on the federal courts rises to an alarming level, the risk of failing to fill these empty seats is that "people will lose confidence not only in the justice system, but in Congress' ability to support it," said American Bar Association President Elect Wm. T. (Bill) Robinson III.

Panelists discussed the process of filling a seat on the federal bench, from the way in which state nominating commissions affect the vetting process in particular states, to the President's deferral to Senators from a given state on that state's nominees. Each of these steps presents an opportunity for delay, the panelists explained, but once a candidate is nominated by the president, it is Senate confirmation that stands in a nominee's way.

During the Obama administration, the Senate has confirmed nominees to the district court at a much slower rate than occurred under President George Bush, said Brookings Institution Visiting Fellow Russell Wheeler.

"It's true that in the lame-duck session of Congress in 2004, the Senate confirmed 17 Bush nominees," Wheeler explained. "Now, I guess it's theoretically possible for the Senate to confirm some more Obama nominees in the lame duck, but I certainly wouldn't hold my breath to see that happen."

Robert Raben, president and founder of The Raben Group and an ACS Board Member, said the Democrats have done an "inadequate job" of creating a constituency that cares about judges.

"I don't think Republicans are by their nature more obstructionist on this issue. I think they're better at it," Raben said. "For some of them it's more passionate, and the Democratic opposition to their opposition is not that strong.

"There isn't a coherent mass of political effort on the Democratic side saying judges matter," Raben added.

Robinson agreed with this sentiment, explaining that the ABA is strengthening its efforts to educate the public about the importance of judges.

"When delays of this magnitude occur, those who really suffer are the people," Robinson said.

Watch the full video below, and visit JudicialNominations.org to learn more about the judicial nominations process and track developments.

AT&T Mobility v. Concepcion, which will be argued before the Supreme Court in November, is a case that "at first blush appears rather technical," hinging on a question of federal preemption. But "the stakes are high" in the case, explains Georgetown University Law Center professor Nina Pillard during an ACS panel, because the case has the potential to allow companies to ban class-actions in their standard-form contracts, thus eliminating the "classic way of enforcing rights that affect groups of people."

Pillard set the stage for a lively and impassioned debate about the case, which could have significant implications for consumer and civil rights.

AT&T's lawyers are arguing that California state courts have discriminated against arbitration clauses in holding that those that do not allow class actions are unconscionable, explained Stephen J. Ware, a law professor at the University of Kansas School of Law. This is a violation of the Federal Arbitration Act, a federal law that should trump state law, AT&T argues.

But F. Paul Bland Jr. said the case is absolutely not about arbitration clauses.

"The case is about whether AT&T can ban class actions," he said. " ... This case is about if you take a term, a ban on class actions, that is in a given case exculpatory, and you take it out of a general contract, and you put it in a contract term that has the label over it that says arbitration clause, does the phrase arbitration clause over the paragraph strike down the normal California rule against exculpatory clauses?"

Alan Kaplinsky, a partner at Ballard Spahr, said the statistics cited by some courts show that consumers do better with individual arbitration than with class cases, because they win more money, the cases take less time, and they are likely to receive attorneys' fees.

But Bland called a class action ban a "get out of jail free card" for corporations, who may be bilking 100,000 people out of $30, only 100 of whom pursue individual arbitration. By not allowing class actions, the company never has to pay the remaining 99,900 people, Bland explained.

Watch the full discussion below.