The Crisis in Judicial Nominations and Confirmations
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There is crisis in the Federal courts today -- an unprecedented absence of judicial nominations and confirmations. The numbers are startling: 104 current vacancies, 20 at the Circuit level and 84 at the District Court level, a vacancy rate of 11.9 percent, with 48 “judicial emergencies” as determined by the Administrative Office of the U.S. Courts. There are 18 more announced vacancies, where judges have publicly announced their imminent retirement.
There are numerous consequences of this crisis, many of which are known by the lawyers who try cases and judges who hear them: high vacancy rates lead to enlarged dockets, increased wait times, an overburdened judicial staff, and, perhaps, less instructive decisions than might otherwise result from less burdened judges. This will have a direct impact on thousands of ordinary Americans, who may see the desire for justice significantly delayed or denied altogether. Nominating and confirming individuals to fill judicial vacancies is critical to the smooth functioning of the judicial system.
What is the cause of this crisis? First and foremost, is the unprecedented delay in the confirmation process. In the current Congress, fewer than half of the judicial nominees reported out by the Senate Judiciary Committee have been confirmed. As of November 19, there were 54 pending nominations, of which 31 are pending hearing at the Judiciary Committee and 23 are pending on the floor of the U.S. Senate waiting for an up-or-down vote. Of the latter, six are at the Circuit level and 17 at the District Court level, one since October 2009 and many for as long as five months.
How did we get into this situation? Even more importantly, how can we extricate ourselves from it so that the Federal Courts can again be at full strength?
There is plenty of blame to go around. President Obama raised hopes among lawyers that, as a former law professor, he would move to fill the many vacancies that existed in early 2009. That hope was dashed as the president, perhaps preoccupied by other crises at home and abroad, was slow to make judicial nominations.
But delays in making nominations also are the result of action -- or inaction -- by other parties. Even before the president makes a nomination, senators (and sometimes representatives) from each state traditionally make recommendations to the president of potential nominees, and many delays have resulted from an inability or unwillingness of the relevant senator to make a selection. After a recommendation is made, the appointee must be vetted thoroughly by the FBI and Justice Department, as well as by the American Bar Association’s Standing Committee on the Federal Judiciary, processes that all contribute significantly to pre-nomination delays.
Hearings are then scheduled by the Senate Judiciary Committee. Unlike other aspects of the process, the Committee process has been relatively speedy: nominees under President Obama have waited an average of 42 days from nomination to being voted on by Committee, and reported to the floor, which is faster than Bush’s nominees were considered at a comparable time. More significant, however, have been the unconscionable delays in the Senate since January 2009, which have prevented many judicial nominees from coming to a vote by the full Senate. Judicial confirmation rates in this Congress have reached an all-time low. According to a Brookings Institute study, despite a Democratic Senate majority, Obama’s appeals court nominees have taken much longer than Bush’s nominees -- an average of 202 days versus 154. As of last April, four of Obama’s seven circuit appointees waited more than 180 days for confirmation. Since then, the delays have grown even longer.
To date, the Senate has confirmed less than half of the judicial nominees made by Obama. By contrast, at this point in the 107th Congress, the Senate had confirmed 61 percent of Bush's judicial nominations.
President Obama has pointed out that of the 23 judicial nominees on the floor sixteen had received unanimous support at the Judiciary Committee, a fact that should have suggested that the nominations were not controversial.
The most accurate explanation of this obstruction and delay seems to be that judicial nominations have become a pawn in the partisan battle that has enveloped Washington over the last several years. Judicial nominations are being held hostage to the views of the present Senate minority which is systematically objecting to unanimous consent to taking floor votes and is forcing a cloture vote on every nominee, whether controversial or not: unless 60 senators are present and will vote to close debate on a nomination, the nominee will not even come up for a vote.
The onerous process the Senate uses to bring a vote to cloture rules out other business taking place on the Senate floor. Strikingly, on those few occasions that cloture has been invoked, the nominees have then passed by unanimous or near unanimous votes, an indication of the arbitrariness of the delay efforts. On most occasions, once a single senator voices objection to the unanimous consent request to bring a nomination to a vote, the majority leader has not taken the step of seeking a cloture vote because of the press of other business.
What can be done to change the process to allow debate and votes on judicial nominees? The only solution presently being discussed is procedural reform. Sen. Majority Leader Harry Reid has promised that filibuster reform will be high on the agenda of the new Congress, and Senator Schumer, third-ranking senator on the Democratic side, has been holding hearings on filibuster reform. But the mid-term elections and the diminishing of the Democrat’s majority means that those interested in reform will face a daunting challenge.
There appear to be only two ways to change the rules. One is to rewrite Rule 22 itself. However, because of the present wording of Rule 22, any change to the sixty-vote threshold would itself require sixty-seven votes, truly a Catch-22 situation. A second route has been proposed by Senator Tom Udall -- relying on Supreme Court precedent that no Congress can set rules so as to bind a future Congress, Senator Udall argues that each new Senate may set its rules by a simple majority vote. That alternative has its supporters but even that route could well be an impossible one to pursue.
There have also been possible litigation solutions discussed from time to time, based upon the analysis that the use of the filibuster is unconstitutional.
The argument relies in part on the Supreme Court’s 1892 holding in United States v. Ballin that found that when a majority is present the house is in a position to do business and its capacity to transact business does not depend upon the disposition or assent or action of any single member or fraction of the majority present. Even assuming that today’s Supreme Court would follow that principle, however, it is not at all clear that a judicial nominee who was thwarted by the need to have a cloture vote taken to be confirmed would have judicial standing to raise any of these arguments in a constitutional litigation.
We are thus left with a crisis that grows worse as sitting judges grow older and retire. As Attorney General Holder recently warned, “Because of projected retirements and other demographic changes, the number of annual new vacancies in the next decade will be 33 percent greater than in the past three decades.” Indeed, with one-eighth the authorized seats vacant, there are more vacancies today than existed when President Obama took office. The institution of the U.S. Senate seems presently incapable of resolving the crisis. One can only hope that a sense of bipartisan cooperation, perhaps inspired by pressure on individual senators from those who are most affected, individuals, companies, and their legal representatives, by sitting judges, such as Justices Ginsburg and Kennedy, who spoke out recently about the crisis, and an aroused media, will return to that institution on this critical issue, if not on others, in the very near future.
David Brodsky has lived in Scarsdale with his wife Stacey and their two daughters, Izzy and Nell, since 1993. Nell. He has one son, Peter, by a prior marriage. Brodsky is a partner in the law firm of Latham & Watkins, a graduate of Brown University and Harvard Law School and he is a member of the Board of the American Constitution Society.
Recent Edgemont Grads Arrested for Burglary
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More surprising news from the Greenburgh Police, where detectives have been seeking information about a recent spate of burglaries. On Monday December 6, Greenburgh Detectives announced the arrest of two boys who just graduated from Edgemont High School in June, 2010. They have been charged with two burglaries that occurred on the night of November 30th on Pheasant Run and Andrea Lane.
The boys entered the homes during the night when residents were home and stole computers and electronic games. From the Andrea Lane home they took a Mac Notebook, an Xbox and an iTouch, and from the Pheasant Run house they helped themselves to a Dell laptop computer and a Playstation 3.
The suspects were identified as Robert Ketzler, age 18 of Warnke Lane, Scarsdale and Charles McCarthy, age 19, of 300 South Central Avenue, Hartsdale. Ketzler was charged with two counts of burglary in the second degree for both of the burglaries and McCarthy was charged with one count of burglary in the second degree for the break-in on Andrea Lane.
According to Captain Chris McNerney, Ketzler and McCarthy have not been ruled out as suspects in some of the ten open residential burglaries in Edgemont. McCarthy is on probation for an attempted robbery conviction in Eastchester in 2008. They were both arraigned in Greenburgh Court on Tuesday December 7th and released on $1,000 bail.
Pictured above: Top left: Robert Ketzler, bottom right: Charles McCarthy
Behar and Quaker Ridge Golf Club Square Off in Court
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Most assumed that the ongoing feud between Leon Behar of Brittany Close and the Quaker Ridge Golf Club was over when the Scarsdale Planning Board issued their decision on the matter, following their October 27 meeting. At that time, the Planning Board heard pleas from Behar’s attorney, Brittany Close residents and lawyers from the Quaker Ridge Golf Course concerning Behar’s need for protection from errant golf balls that were struck from the second hole of the course.
In June 2010, the Behars had gone to court to remedy the problem and Judge Emmett Murphy recommended that the club erect a 60-foot fence to shield the Behars, pending approval from the Scarsdale Planning Board. Until the fence could be erected, restrictions were placed on the use of the second hole of the golf course. These restrictions remained in force all summer and fall until the parties met at the Village Planning Board meeting on October 27. At that time, concerned neighbors argued for a lower fence, as they believed that the 60-footer would be an eyesore looming over their newly built homes.
After learning that scientific data showed that a 40-foot fence would trap 98% of the golf balls, the Planning Board ruled that a 40-foot fence would be adequate. They also called for a stand of 35-foot Armstrong Maple trees to be planted on the club side of the fence. The fence is approved for five years until the trees can grow high enough to screen the property.
The club is now waiting for the building permit for the fence and plans to erect the 40-foot screen as soon as they get the go ahead from Scarsdale Village.
So it was puzzling why Mr. Behar and attorney Julius Cohn chose to continue to pursue their original lawsuit in court on November 29th. When questioned, Mr. Behar said, “My position is that I will not drop the case until they (Quaker Ridge Golf Club) actually put up the net and plant the trees according to the plans submitted to and approved by the Planning Board. Only once they live up to their obligation in a way that remedies the problem will I consider dropping the case.”
In the interim, Behar has removed the 25-foot fence he originally built, as he did not have approval for it from the Village. Restrictions on usage of the second hole have been lifted because the golf season is over, though the course continues to be used. Judge Emmett Murphy has ordered additional motions to be filed December 13, with responses from Behar’s attorney due on 12/31. Stay posted.
Attention Greenburgh Neighborhood Watch
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The Greenburgh Police Department is investigating several recent burglaries in Edgemont, Ardsley and Scarsdale. Burglaries have occurred on High Point Road, Andrew Lane, Pheasant Run and Sprain Valley Road. In most cases the burglars entered through a rear sliding glass door by either smashing the window or prying open sliding doors. In the majority of cases, jewelry and electronics have been stolen.
In the burglary on High Point Road, the homeowner arrived home and found the suspect in the house. The intruder was described as small-framed male wearing blue jeans with embroidery on pocket. In the other cases, witnesses report seeing a dark colored SUV in the area prior to the incident.
The Greenburgh Police are asking for your help in identifying any suspicious activity in the area. If you notice a suspicious vehicle, person, or incident, get a good description of the suspects and any vehicles that may be involved and call 914-682-5300 immediately.
Police also advise you to keep your doors and windows locked and your alarm activated. Be aware of your surroundings while walking to and from your car and when walking in your neighborhood. A representative from the police department is available to visit your home and do a security survey to help find ways to better secure your home. You can make an appointment for this free service by calling 914-682-5334 or e-mailing pdandreano@greenburghny.com .
If anyone has any information on these burglaries, please call the Greenburgh Police Detective Division at 914-682-5348.
Tax Revaluation Recommended by Scarsdale Forum
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Fair assessments for property taxpayers was the main theme discussed as the current New York State system is both hard to understand and properties are not treated uniformly, with some paying too much and others too little. Since property tax is based upon property value, and the last revaluation in Scarsdale was done 41 years ago in 1969, there is no current standardized and accurate assessment for all 5900+ parcels in the Village of Scarsdale.
Speaker John Wolham, Regional Director of the New York State Office of Real Property Tax Services, cited current tax inequities measured in recent Scarsdale residential home sales which have similar sale prices but vastly different tax assessments. He explained how reassessment is a comprehensive review of all properties in a community in which all assessments are set back to market value with the primary goal of fair share tax payment. Undeniably Scarsdale property owners pay among the highest property taxes in the nation and similar neighboring community’s have also commissioned studies on tax revaluation and its impact. Bronxville Mayor, Mary Marvin, spoke about the level of uncertainty for homeowners and residents’ need to understand exactly what revaluation entails. Bronxville successfully completed a revaluation in 2007 which required local government transparency and an educational and collaborative process with open communication. She said “an under-assessed home will stay that way in perpetuity unless you do revaluation. Furthermore, people don’t want to pay more than what the assessor has valued the house at.” Mamaroneck Town Administrator, Steve Altieri, reported the Mamaroneck Town Board resolved in March 2010 to go forward with a town and village-wide revaluation after a ten year discussion and the precipitous increase to over 1,000 tax certiorari challenges this year costing the town $500,000 in the last two years with a related impact on the school budget. Mamaroneck has 8,500 property parcels and projects the completed revaluation assessment roll to begin in June 2013.
Scarsdale’s Village Manager, Al Gatta has a unique perspective on the issue, as he has conducted three revaluation processes in his career in other municipalities. Currently, as Chair of Westchester County Assessment Commission, he believes the County should pass a law to require reassessment every four years. A detailed report from the committee to the Board of Legislators is expected shortly and will be available to the public. He further explained how the decline in home market values in the past three years has led the county to defend tax appeals and challenges costing $55 million and that the goal of full County revaluation is a proportionate and fair share payable by each municipality to the County. At both the county and village level, a related long term goal is that reassessment will level the playing field thereby limiting tax challenges.
Tax revaluation is a complex issue carrying misperceptions about a very technical subject. Reassessment does not raise taxes - it redistributes taxes away from those paying too much, toward those paying too little. Reassessing a property does not, by itself, increase its tax. It lowers the tax on over-assessed properties and raises the tax on those that were under-assessed. If everyone’s assessment doubles, no one’s tax goes up. Your tax goes up only if your assessment goes up more than the community average. Reassessment does not help or hurt any one group. It will help homes and neighborhoods that have not appreciated as fast as the rest of the community.
Questions arising about possible revaluation and its impact:
- Just how inequitable is the property assessment situation in Scarsdale today? No one really knows because it has been 41 years since the last town-wide reassessment.
- Are older homes on large properties in Scarsdale generally under-assessed and will they have to pay more after revaluation? Current real estate listings provide evidence that significant inequities exist.
- What happens with over-assessed properties? Reductions in assessed values translate to a corresponding reduction in property taxes payable.
- Will there be a transition phase-in or deferral allowed for homeowners who are subject to increased taxes after revaluation? Will basic or enhanced STAR (School Tax Relief) and other exemptions offset increases?
- What is the cost of performing a town-wide revaluation? Request for Proposals would be sent to revaluation companies to determine cost estimates.
To find out more about how the proposed tax revaluation may affect you consult a knowledgeable professional such as your local tax assessor, locally licensed real estate agent or broker, a certified real estate appraiser or tax grievance representative. You can view the discussion on the Forum website here and find additional information about tax revaluation on the following websites:
Angela Manson is a licensed real estate salesperson with Prudential Centennial, Scarsdale who has studied local tax revaluation proposals on behalf of her clients and the community. She welcomes and assists buyers and sellers in Scarsdale and neighboring communities. She may be reached at 914-420-9878 or amanson@prucentennial.com