Sen. Harry Reid

PFAW Edit Memo: Striking Progress on Judicial Nominations

To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel
Re: Striking Progress on Judicial Nominations
Date: September 22, 2014

So far, 2014 has been a banner year for effectively pushing back against the Republican obstruction of judicial nominees that we have seen since the moment Barack Obama took office. The past few months have shown just how much progress America can make in ending the deliberate sabotage of the third branch of government so that our nation’s federal court system can do what the Founders intended it to do: Protect every person’s rights and ensure that everyone can have their day in court.

Background

Since the day that George W. Bush left office, Republicans have sought to leave as many judgeships as possible vacant for as long as possible, apparently in the hopes of maximizing the next (Republican) president’s opportunities to nominate his or her own judges and impose a right-wing ideology on America’s federal courts. With that goal they have simply blocked confirmation votes, regardless of the nominee. The result has been long backlogs in courts across the country and serious delay in providing justice for many Americans.

Under Senate rules, unanimous consent is needed to schedule a confirmation vote for a judicial nominee – something that used to be regularly granted to nominees with strong bipartisan support, as most lower court judges have had. But for the first time, Republicans under President Obama have routinely refused to allow timely votes on nearly every nominee – even the vast majority who have little or no Republican opposition – effectively but invisibly filibustering just about every one of them. Only after months of delay would Republicans finally consent to a vote. In all other cases, the only way to break the logjam has been for Democrats to file a cloture motion to end the filibuster, a burdensome and time-consuming practice, and (until recently) one requiring a supermajority of 60 votes. So for the first five years of the Obama presidency, confirmations were regularly delayed for no reason, usually out of public view, for months longer than necessary. For instance, Richard Taranto was confirmed to the Federal Circuit unanimously, but the Senate was not allowed to hold a vote until 347 days after his committee approval; Republicans never publicly explained why they would not allow him a vote earlier.

Overcoming Obstruction in 2014

This year, things have changed. By late 2013, five years of unprecedented obstruction had climaxed in a declaration by GOP senators that they would filibuster any nominee for the critically important and understaffed District of Columbia Circuit Court of Appeals, no matter who the nominee might be, Senate Democrats concluded that the Senate and the nation would be significantly damaged if this were allowed to continue. The chamber responded to the exceptional obstruction by reforming its procedural rules. Going forward, cloture votes to end filibusters of executive and judicial nominees (with the exception of those to the Supreme Court) would require a majority of senators voting, rather than 60 votes.

Now, when Republicans refuse to consent to a vote, Majority Leader Reid files a cloture petition and sets a vote. Taking advantage of the change in Senate rules, Democrats have been able to defeat the GOP filibusters with a simple majority vote. While Republicans have not consented to even one judicial confirmation vote in 2014, they also have not been able to stop the Senate from voting on any of them. And despite the significant time that Republicans force the Senate to spend on each confirmation – drawn-out roll-call cloture votes, post-cloture time for debate of 30 hours for circuit court nominees and two hours for district court nominees (a debate that usually does not occur despite the time set aside for it), then time-consuming roll-call confirmation votes – Reid and the Democrats have persevered. Rather than wait for months longer than needed after committee approval before having a floor vote, the Senate has been able to act in a more timely – and appropriate – manner.

One of the basic and most important responsibilities of the U.S. Senate under the Constitution is to vote whether to confirm judges and keep the federal judiciary functioning. As of 2014, the Senate has no longer been blocked from doing that.

The figure below shows the dramatic drop in how long the average nominee has had to wait for a confirmation vote after approval by the Judiciary Committee as a result of the rules change:

With the Senate freed to do its job, the number of confirmation votes has grown significantly.

This has ameliorated the intentionally generated vacancy crisis that has hobbled our courts since President Obama took office. There were 54 vacancies when Obama was inaugurated in 2009. With the Senate blocked from holding timely confirmation votes, that number went to historic highs, skyrocketing to 100 by the end of the year. When the 111th Congress ended in December of 2010, Republicans blocked confirmation votes for 19 qualified nominees who had been approved by the Judiciary Committee, the overwhelming majority of whom had been approved unanimously or with almost unanimous support. As a result, 2011 opened with 95 vacancies – and with a needless bottleneck of nominations that delayed confirmation votes for all nominees down the line. With Republicans preventing the Senate from confirming even consensus nominees, it counted as a major accomplishment if the number of vacancies dipped into the low 80s, or even the 70s, as it sometimes did.

As a result, at the beginning of this year, our federal court system was suffering from 92 vacancies. And now? As of September 21, we’re down to 57 circuit and district court vacancies, just a few more than when Obama took office. This is a dramatic and long overdue drop.

Supreme Court and Circuit Courts:
Undoing the Damage of the Bush Years

Our Constitution and our laws protect our right to vote, to have a workplace free of discrimination, to get married, to make our own reproductive decisions, to hold corporations accountable when they unlawfully injure or cheat us, and to have a voice in our democracy. But those rights don’t mean anything if we don’t have effective courts – and judges – to vindicate them when they are impinged.

Knowing the important role federal courts play in shaping our laws and guaranteeing – or frustrating – our basic rights, President Bush and his supporters set out to put as many far right ideologues on the federal appellate courts as possible. The most controversial of his court nominees are busy re-making law across the land.

Most notoriously, John Roberts and Samuel Alito have joined with Reagan and Bush-41 nominees Antonin Scalia, Clarence Thomas, and Anthony Kennedy to give hard-right ideologues a frequent 5-4 majority on the Supreme Court. They have regularly bent the law and confounded logic in order to rule in favor of the powerful in case after the case, rewriting our Constitution and federal laws. Citizens United, Shelby County, and Hobby Lobby are just a few of the growing number of cases where they have used the federal bench as a platform to transform the country to fit their personal political ideologies, notwithstanding what the Constitution and our laws actually say.

While the Supreme Court is extremely important and well known, it only hears around 75 cases a year. Most Americans in federal courts have their cases decided at the district or circuit level. Circuit court rulings have an enormous impact on the law, and only a tiny portion of them are reconsidered at the Supreme Court. That is why George W. Bush and his partisans spent so much effort to confirm ideologues like Janice Rogers Brown, who now holds a lifetime position on the D.C. Circuit. She wrote a 2012 opinion holding that graphic warnings on cigarette packages violate the tobacco companies’ free speech rights. She joined a 2013 opinion striking down a National Labor Relations Board rule requiring employers to post workers’ legal rights, framing it as “compelled speech” indistinguishable from forcing schoolchildren to say the Pledge of Allegiance or requiring drivers to display a political message (Live Free or Die) on their license plates. She even defended the ideology of the discredited Lochner era in a 2012 concurrence, writing that courts’ deference to everyday economic and business regulations “means property is at the mercy of the pillagers.”

In contrast to ideologues like Brown, President Obama has named judges characterized by their fidelity to the Constitution and our laws, and the impact on ordinary Americans has been enormous. For instance, the full D.C. Circuit, which now has four Obama nominees among its eleven active judges, this month vacated a widely criticized panel ruling by two conservative judges striking down a key subsidies provision of the Affordable Care Act. The legal argument against the subsidies has been widely recognized as weak, with a transparently political motive. On the same day of the DC Circuit’s panel ruling, a unanimous panel of the Fourth Circuit had upheld the law. Obama nominee Andre Davis accurately described what the far right plaintiffs are seeking judicial allies to do:

[They want] our help to deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear.

As that one example illustrates, the D.C. Circuit is hardly the only one of our nation’s 13 federal circuit courts that looks very different today from when Bush left office. Where there was then only one circuit with a majority of its active judges nominated by Democratic presidents, today there are nine.

Especially this year, supported by the Senate rules change, progress has been remarkable. The 113th Congress has confirmed 23 circuit court judges. One would have to go back to the 99th Congress in 1985-1986 to see that many circuit court judges confirmed during a single Congress.

The past year has seen the confirmation of nominees like Michelle Friedland (9th Circuit), Pam Harris (4th Circuit), and Nina Pillard (D.C. Circuit), jurists who understand the impact of the law on everyday Americans, who cherish our constitutional principles of equality and liberty, and who don’t see the federal courts as just another part of government that can be used to enhance corporate power.

Conclusion

If the past few months have shown us anything, it is this: Standing up to bullies works. The White House has made judicial nominations that it can be proud of, and Senate Democrats have overcome years of Republican obstruction to get these nominees confirmed. Despite the GOP’s herculean efforts to prevent President Obama from exercising the powers he was elected – and re-elected – to use, he is successfully restoring balance to the nation’s courts. For the first time, the number of courtroom vacancies is close to where it was when Obama took office, and highly qualified jurists are taking their places on our federal circuit and district courts.

And the progress isn’t over. An additional 16 judicial nominees have been fully vetted and approved by the Judiciary Committee and are currently eligible for a floor vote – a floor vote that could have been held before the Senate left town for the elections. Several more have had hearings and should be ready for consideration by the Committee and the full Senate during the lame duck session that is scheduled to begin on November 12. And the White House just sent additional nominees to the Senate that could easily have hearings and a Committee vote during the lame duck session as well. There is absolutely no excuse for not holding confirmation votes on any of these committee-approved nominees by the end of this Congress.

During the last two years of the Obama Administration and the years that follow, we can be sure of certain things: The courts will remain critically important, and progressives will have to fight hard to protect those courts and keep them functioning effectively, with judges who won’t seek to use their positions to short-circuit our most important rights.

###

PFAW and Allies Deliver to Senate Hearing Two Million Petitions for an Amendment to #GetMoneyOut

Before yesterday’s Senate Judiciary Committee hearing on a proposed campaign finance constitutional amendment had even begun, advocates from People For the American Way and partner organizations had already delivered a powerful message from the American people. Carrying signs saying “Restore the First Amendment” and “Amend the Constitution to #GetMoneyOut,” activists rolled in stacked boxes of more than two million petitions in support of an amendment to get big money out of politics.

 

In his opening remarks, Sen. Patrick Leahy noted that these petitions serve as a “tangible reminder that Americans are calling on Congress to act.”

In an rare move that underscored the importance of the proposed amendment, both Senate Majority Leader Harry Reid and Minority Leader Mitch McConnell testified at the hearing. Sen. Reid issued a call to action for the amendment, urging Americans to work together to restore the basic principle of one American, one vote. “Our involvement in government should not be dependent on our bank account balances,” he said.

Sen. McConnell, on the other hand, used the platform to claim that the proposed amendment is about shutting people up, calling it the “latest proposal to weaken the First Amendment.” Later, Sen. Ted Cruz continued to push the false claim that the amendment would “repeal the free speech protections of the First Amendment” and “muzzle” Americans.

But other witnesses were quick to debunk this myth, including constitutional law expert Jamie Raskin, who is also a senior fellow at People For the American Way. In his testimony, Raskin noted:

[E]ven as our huge majorities of Americans support reclaiming our democracy, opponents of the Amendment are waving the flag of the First Amendment, as if political democracy and free speech are enemies. But the Citizens United era has nothing to do with free speech and everything to do with plutocratic power. Citizens United did not increase the rights of a single citizen to express his or her views with speech or with money. Before the decision, all citizens, including CEOs, could express themselves freely, make contributions, and spend all the money they had to promote their politics. They could band together with the help of the corporation and form a PAC. All Citizens United did was confer a power on CEOs to write corporate treasury checks for political expenditures, without a vote of the shareholders, prior consultation or even disclosure.

In terms of real world consequences, Raskin went on to note, these damaging Supreme Court decisions did not “expand the political freedom of citizens but… reduce[d] the political power of citizens.”

North Carolina State Senator Floyd McKissick described some of those real world effects, noting that he can divide his time in the state legislature into two distinct periods: “before Citizens United, and after”:

Suddenly, no matter what the race was, money came flooding in. Even elected officials who had been in office for decades told me they’d never seen anything like it. We were barraged by television ads that were uglier and less honest than I would have thought possible. And they all seemed to be coming from groups with names we had never even heard of. But it was clear that corporations and individuals who could write giant checks had a new level of power in the state.

PFAW

Countering the Conservative Campus Crusade

The following is a post by Gabriela De Golia, Advocacy Associate for affiliate People For the American Way Foundation’s Young People For program.

Last week, in a speech in support of a constitutional amendment to reduce the influence of big money on our political system, Majority Leader Harry Reid said, “No one should be able to pump unlimited funds into political campaigns.”  On political spending, Sen. Reid noted, the “Koch brothers are in a category of their own.”

Indeed, the Koch brothers’ influence in shaping our national political dialogue is stronger than many realize. In March the Center for Public Integrity wrote about David and Charles Koch’s financial investments in colleges and universities—the nation-spanning “campus of Koch Brothers Academy.” By pouring millions into schools across the country, the Koch brothers bankroll academic programs to promote their economic and social ideologies. They champion regressive political philosophies and create a pipeline for youth to become engaged in conservative activism. In effect, the Koch brothers are leading a crusade to funnel young people into the conservative movement.

However, we in the progressive movement are also investing in our youth. Despite not having as much money as oil tycoons, key players in the progressive movement understand the power of youth and are fighting back with a long-term progressive infrastructure. Programs like Young People For (YP4) of People For the American Way Foundation provide young progressive leaders the tools to create systemic change, roll back conservative advances, reclaim our democracy, and fight for justice.

By teaching young adults to identify key issues in their communities, create concrete action plans, and mobilize others through organizing and advocacy, YP4 helps Millennial change-makers build power to win on progressive issues. For example, through our program’s Money in Elections campaign, young activists have held rallies, gathered petitions, protested banks, and spoken at national events in support of reclaiming our democracy. Ariel Boone, a 2009 YP4 Fellow, lead a successful campaign urging the University of California at Berkeley to divest $3.5 million out of Bank of America and reinvest these funds in a local bank that contributes millions to the surrounding community. Last year 2013 Fellow Brendien Mitchell spoke alongside Senator Bernie Sanders and other pro-democracy movement leaders at a rally to get big money out of politics on the steps of the Supreme Court. These are but a couple examples of how YP4 is supporting young people in taking a stand against corporate influence in our political system.

As YP4 enters its tenth year, we continue to recognize that to build a movement, you need to think long-term. From recruiting youth from marginalized communities into our Fellowship program, to assisting them in getting more voters to the polls through our voter engagement programs, to training them to run successful campaigns through our Front Line Leaders Academy, we support youth every step of the way of their leadership journey.

Often in conversations about politics and civic participation, young adults are afterthoughts, considered an “apathetic” audience that doesn’t vote. But Millennials are far more engaged than given credit for. In fact, today’s young adults are anything but disengaged. Despite being the first generation to be economically worse-off than their parents through no fault of our own, Millennials are far more likely to do community service than older generations. About half of us vote, and we currently account for over 20 percent of the voting-eligible population in the US – and that number is growing as more of us turn 18. We must constantly overcome conservatives’ best attempts to keep us from the polls, efforts which in themselves show how much power we hold over the political process – no one would try to disenfranchise us if we didn’t matter. And last but certainly not least, we are the most diverse and progressive generation in recent history.

Ironically, two individuals who spend enormous amounts of money to influence the civic lives of young adults represent political leanings at odds with much of the Millennial generation’s values. The Koch brothers singlehandedly influence the US political arena more than almost anyone else thanks to their nearly limitless pool of oil money. They are two of the most radical and influential right-wing leaders today who are attempting to abolish the minimum wage, get rid of Social Security, defund the Affordable Care Act, equate money with speech, and lead the transformation of American democracy into an oligarchy.  As shown in the Center for Public Integrity report, in 2012 they gave nearly $13 million in tax-deductible donations to higher education institutions, including many that are often considered “liberal,” to promote their ideologies.

These contributions show that conservative leaders do understand the power of youth and the return they get from investing in youth leadership development opportunities. By shelling millions into programs for young conservatives since the 1970s and focusing on long-term capacity building rather than just mobilization during elections, conservatives see the fruits of their labor in congressional dysfunction and the weakening of our democratic processes.

But programs like YP4 are doing the work to turn this tide by developing young progressive leaders. As Andrew Gillum, Director of Youth Leadership Programs at People For the American Way Foundation, wrote earlier this year: “Investing in progressive young people is the key to ensuring our movement’s capacity to create and sustain social change for years to come.”

Creating change is hard and takes time, especially when up against big money like that of the Koch Brothers. But by investing in young people, the progressive movement can make a real difference in both the short and long terms. We simply cannot afford to not invest in youth.

PFAW Foundation

Campaign Finance Amendment To See Senate Action

On the floor of the Senate today, Majority Leader Harry Reid called for a constitutional amendment to counter the outsized role of big money in our electoral system. Senate leaders are not wasting any time in moving forward; Sen. Leahy announced today that the Senate Judiciary Committee will hold a hearing on the amendment early next month. The Senate action on an amendment – which 16 states and more than 550 cities and towns have already gone on record in favor of – serves as a significant step forward in the growing movement to put the power in our democracy back in the hands of the people.

Reid’s remarks included a call to fellow senators to fight back against the “hostile takeover of our democratic system” by wealthy special interests:

Every American should have the same ability to influence our political system. One American, one vote. That’s what the Constitution guarantees. The Constitution does not give corporations a vote. And the Constitution does not give dollar bills a vote…

…[T]he flood of special interest money into our American democracy is one of the glaring threats our system of government has ever faced. Let’s keep our elections from becoming speculative ventures for the wealthy and put a stop to the hostile takeover of our democratic system by a couple of billionaire oil barons.

Read People For the American Way Executive Vice President Marge Baker’s statement on the upcoming hearing here.
 

PFAW

PFAW Statement on Upcoming Hearing on Campaign Finance Constitutional Amendment

WASHINGTON – Senator Patrick Leahy announced today that the Senate Judiciary Committee will hold a hearing June 3 on a constitutional amendment to restore the ability of Congress and the states to regulate the raising and spending of money on elections. People For the American Way Executive Vice President Marge Baker released the following statement:

“Today’s announcement is an important step forward in the movement to reclaim our democracy from wealthy special interests. In the wake of the Supreme Court’s decision in McCutcheon v. FEC, which allowed even more money to flood our elections, this work is more urgent than ever.

“Passing a constitutional amendment is never an easy process – nor should it be.  But this is a moment in our nation’s history where “we the people” must act to protect the integrity of our democracy. We applaud Sen. Leahy, Sen. Reid, and Sen. Udall on their leadership in moving this critical process forward.”

For more information on People For the American Way’s Government By the People work, please see: http://www.pfaw.org/GovernmentByThePeople

###

PFAW Praises Senate for This Week’s Action on Judicial Confirmations

After a two week recess, the Senate has made significant progress in judicial confirmations on its first week back. This is not due to a drop in Republican obstruction, but instead to Majority Leader Harry Reid’s determination to overcome that obstruction. Only one week during President Obama’s administration has seen more judicial confirmations. Since Monday, over GOP filibuster efforts, the Senate has confirmed eight district court nominees and one circuit court nominee, while breaking the filibuster of a second circuit court nominee. Nancy L. Moritz’s nomination to the Tenth Circuit is scheduled for Monday, May 5.

Clearing so many of President Obama’s judicial nominations is a nearly unprecedented occurrence for a Senate that has been bogged down by Republican obstruction every step of the way. People For the American Way’s Executive Vice President Marge Baker released the following statement:

“This was a good week for our justice system, with nine judges confirmed to the bench. Americans saw critical advancement in confirming the circuit court nominees who have been denied a vote for months. A Ninth Circuit judge was confirmed, and the filibuster of a Tenth Circuit judge was broken. We applaud the Senate for moving forward on these confirmations, which are crucial for our justice system to run efficiently and serve everyday Americans. It is heartening to see the Senate taking this important step to strengthen our judiciary.

“Senator Reid’s efforts to prioritize this issue and clear President Obama’s judicial nominations are making an impact. Despite Senate Republicans blocking nominees and delaying votes from the beginning, Senator Reid has pushed to move these nominations forward and this week, we’ve seen that work pay off.

“We hope to continue to see the Senate working for the benefit of American citizens by giving them the fully functioning courts they deserve.”

###

Sen. Reid Cosponsors Amendment to Fix Campaign Finance System, Senate to Hold Vote in 2014

Big news for our democracy: This morning at a Senate Rules Committee hearing on “dark money,” Sen. Chuck Schumer announced that the Senate will vote this year on a constitutional amendment that would put the power of regulating the raising and spending of money in elections back in the hands of Congress and the states.

The Hill reports:

“The Supreme Court is trying to take this country back to the days of the robber barons, allowing dark money to flood our elections. That needs to stop, and it needs to stop now,” said Senate Rules Committee Chairman Charles Schumer (D-N.Y.), who announced the plan.

“The only way to undo the damage the court has done is to pass Senator Udall’s amendment to the Constitution, and Senate Democrats are going to try to do that,” he said.

Adding fuel to the amendment efforts, Majority Leader Harry Reid recently signed on as a cosponsor of Sen. Udall’s proposed constitutional amendment. Sen. Reid is among the senators People For the American Way has reached out to urging cosponsorship.

In the wake of this month’s McCutcheon v. FEC decision and a recent study that found the US to be an oligarchy rather than a democracy, efforts to reclaim our political system from the outsized influence of wealthy interests are more essential than ever. Sen. Reid’s support and the newly announced Senate vote plans highlight the growing momentum of this movement, with over 150 members of Congress, 16 states, more than 550 cities and towns, and even our nation’s president already on record in support of an amendment.

As former Supreme Court Justice John Paul Stevens said at the committee hearing this morning, “Unlimited campaign expenditures impair the process of democratic self-government.” You can add your name to PFAW’s petition and tell other members of Congress to support a constitutional amendment to restore government by the people.

PFAW

PFAW Applauds Announcement that Udall Amendment Will Receive a Vote in 2014

According to media reports, Senator Schumer will announce today that the Senate will vote this year on SJ Res 19, a constitutional amendment that would restore the ability of Congress and the states to regulate the raising and spending of money on elections in the wake of Citizens United, McCutcheon and other Supreme Court decisions.

“Today’s announcement is a major step forward in the movement to restore government to the people,” said Marge Baker, Executive Vice President at People For the American Way. “Americans are fed up with elections being auctioned to the highest bidder and they’ve offered broad support for amending the Constitution to restore the ability to set common-sense limits on the influence of powerful corporations and the ultra-wealthy in our democracy. Elections should be decided by the power of individuals’ votes, not the size of their wallets.”

Already, 16 states and more than 550 towns and cities around the country are on record in support of a constitutional amendment to restore government by the people. On ballot initiative after ballot initiative, when put to a vote by the people, three quarters of voters support adoption of an amendment.  

“Americans across the political spectrum support amending the Constitution to get big money out of our elections,” said Baker. “This vote will be an opportunity for senators of both parties to show their support for fair elections and for the principle that voters, not just billionaires and giant corporations, should be in charge of our democracy.

“Senators Udall, Reid and Schumer should be applauded for moving the ball forward on this issue. People For the American Way’s hundreds of thousands of members, activists and supporters are deeply energized about this issue, and we’ll be working non-stop to support this amendment and restore government to the people.”

###

Share this page: Facebook Twitter Digg SU Digg Delicious