Colorado’s Federal Courts Matter

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Tenth Circuit

The federal courts have a great effect on public policy and a direct impact on people’s lives. Federal judges receive lifetime appointments, yet the system for appointing federal judges, and the vacancy crisis in the federal courts, do not get the attention they deserve in Colorado.

The Circuit Courts are the highest federal courts in the United States other than the U.S. Supreme Court, and because the Supreme Court takes only about 75 cases per year, 98% of all federal appeals are decided at the Circuit Court level.

Denver is the home to the 10th Circuit Court of Appeals, which handles all appeals from the federal district courts (trial courts) for Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. Decisions of the Tenth Circuit on important issues such as the environment and federal land policy, reproductive freedom, voting rights and money in politics, and civil rights are often final and binding for the states in the Circuit. 

Denver is also the home of the United States District Court for the District of Colorado. In addition to presiding over criminal and civil trials, federal district judges are usually the first to rule on constitutional challenges to federal or state laws. 

Federal courts around the country are gripped by a vacancy crisis which has left many important seats openThis crisis affects everyone because the federal courts handle important cases on practically every subject, including voting rights, environmental protection, workplace discrimination, health care, and much more.

Colorado's Federal Courts Matter is a one-stop webpage providing Coloradans with information about how the federal judicial nominations work, how federal court decisions affect public policy in Colorado, and how the public can help pressure the President and the Senate to solve the vacancy crisis. Colorado Ethics Watch is presenting this information as a part of the Courts Matter Colorado Coalition: over 15 nonprofit organizations in Colorado which have united to educate the public about the importance of federal courts and to advocate for a fair, diverse, and fully staffed federal judiciary. 

The Federal Judicial Nomination Process and Recent Rules Reform

Under the U.S. Constitution, the President nominates candidates for all federal judicial nominees and the U.S. Senate provides advice and consent.  Click here for a summary of the judicial nomination process. Note that because Senators have a role in assisting the President with nominations, a dilatory pair of Senators in one state can create a delay that affects the entire Circuit. 

In November 2013, the U.S. Senate voted to reform its internal rules to end the 60-vote filibuster rule and allow simple majority yes or no votes on most executive and judicial nominees made by the President.  The rule change came after a Senate minority waged an unprecedented level of obstruction against President Obama's judicial and executive nominees.  Both Colorado Senators Mark Udall and Michael Bennet voted in favor of rules reform to put the Senate back to work.  Read Sen. Udall's press release on rules reform and Sen. Bennet's press release on ending obstruction of nominees.

 

The United States Court of Appeals for the Tenth Circuit

Headquartered in Denver, the Tenth Circuit is allocated twelve full-time judgeships, of which only ten are currently filled. The ten active judges include one woman, one Latino judge and one African-American judge. There are also eleven judges on "senior status" who do not carry full caseloads. There are ten men and one woman judge currently on senior status in the Tenth Circuit.

Tenth Circuit judgeships are allocated to each of the six states in the Circuit. Currently vacant seats are from the following states:

Judge Moritz  Kansas: Vacancy created by retirement of Judge Deanell Reece Tacha has been open since January 27, 2011.  President Obama nominated Kansas Supreme Court Justice Nancy Moritz on August 1, 2013. Justice Moritz had her Senate Judiciary Committee confirmation hearing on November 13, 2013.  President Obama renominated Justice Mortiz in January 2014 at the start of the second session of the 113th Congress and her nomination was voted out of the Judiciary Committee on January 16, 2014.

 

 

Judge McHughUtah: Vacancy created by Judge Michael R. Murphy taking senior status has been open since December 31, 2012.  President Obama nominated Utah Court of Appeals Judge Carolyn B. McHugh to the seat on May 17, 2013. Judge Murphy's Senate Judiciary Committee confirmation hearing was on September 25, 2013.  On November 14, 2013, the Committee unanimously voted to send her nomination to the Senate floor. President Obama renominated Judge McHugh in January 2014 at the start of the second session of the 113th Congress and her nomination was again voted out of the Judiciary Committee on January 16, 2014.

On July 8, 2013 the Senate unanimously (88-0) voted to confirm Wyoming Attorney General Gregory A. Phillips to the vacant Wyoming seat after his nomination was pending for 158 days.  Both Colorado Senators Michael Bennet and Mark Udall voted in favor of confirmation.  Senator Udall also issued a press release urging the Senate to fill the remaining two vacancies on the 10th Circuit.

 

The United States Court of Appeals for the District of Columbia Circuit

DC Circuit

The D.C. Circuit covers the smallest territory of the geographically-based circuits, but it wields outsize significance due to its strong influence on federal action. Many environmental laws provide for appeals exclusively to  the D.C. Circuit, and the court reviews actions of almost all federal agencies. In addition, the D.C. Circuit is a traditional stepping-stone to the U.S. Supreme Court, with four of the current justices having previously sat on the D.C. Circuit.

The D.C. Circuit is especially important for Coloradans because:

•             The D.C. Circuit is vital to protecting Colorado’s land, water and air. It is often the first court to hear environmental cases, including cases that challenge nationwide standards adopted under the Clean Air Act, decisions of the Federal Energy Regulatory Commission, and national primary drinking water regulations.

•             The D.C. Circuit has jurisdiction over federal agencies that protect employees’ rights in the workplace. It has upheld federal protections against discrimination and plays an important role in labor relations because it hears appeals from the National Labor Relations Board, including cases involving Colorado workers resolved by the NLRB.

•             Colorado has a large federal presence both in land ownership and employment. The D.C. Circuit’s jurisdiction over all federal agencies guarantees its decisions have an impact on Colorado. 

At the start of 2013, four of the D.C. Circuit's eleven judgeships were vacant, including one that had been open since its previous occupant, John Roberts, was confirmed Chief Justice of the United States in 2005. President Obama was the first President since Truman not to have named a D.C. Circuit judge in his first term.  In May 2013, the United States Senate unanimously confirmed Deputy Solicitor General Sri Srinivasan as the first new D.C. Circuit judge in the Obama administration and the first federal appellate judge of South Asian heritage in the nation. 

In June 2013, President Obama announced nominations to fill the three reamining vacancies on the D.C. Circuit: (1) Judge Robert L. Wilkins of the U.S. District Court for the District of Columbia; (2) Professor Cornelia T.L. “Nina” Pillard from Georgetown University Law School; and (3) Noted Appellate Attorney Patricia Ann Millett.  

DC Circuit 3

In October and November 2013, all three of these nominations were filibustered when the Senate failed to reach the prior 60-vote threshold to end debate and proceed to an up-or-down confirmation vote. Thanks to the rules reform supported by a majority of Senators - including Colorado Senators Mark Udall and Michael Bennet - each nominee was again considered, given a floor vote, and confirmed: Patricia Millett (December 10, 2013), Nina Pillard (December 12, 2013), and Judge Wilkins (January 13, 2014).  Now the D.C. Circuit has a full bench of judges to consider these important issues for Colorado and our nation for the first time since 2006.

 

Vacancies in Colorado's Federal District Court

In Spring 2013, the Senate confirmed Federal Public Defender Raymond Moore to the United States District Court for the District of Colorado. He is the second African-American judge in the history of that court. With Judge Moore's swearing-in, there are no current vacancies on the Colorado federal District Court.

However, based on the Judicial Conference of the United States' recommendations, The Federal Judgeship Act of 2013 was introduced in the Senate in August 2013.  If passed, this bill will create two needed District Court seats in Colorado to handle increased caseload.