Courts

Barney Frank: This Year’s Midterm Elections Define Our Courts

In an op-ed printed in the Portland Press Herald this weekend, retired congressman Barney Frank offers a sharp critique of the far right Supreme Court under John Roberts. Explicitly noting the importance of the Court in defining law that affects all citizens, Frank makes clear not only that courts matter, but everyday citizens have a hand in how these courts are shaped.

Reviewing the impact of recent Supreme Court decisions — from overturning “more than 100 years of federal and state efforts to regulate the role of money in campaigns” to declaring that corporations have the right to religious freedom under RFRA—Frank states that “the court has ended this term with a barrage against laws it does not like” (emphasis added).

He continues,

…The Supreme Court is now strongly inclined to impose conservative ideology via Constitutional interpretation on a broad range of public policy. It is true that Kennedy and to some extent Roberts occasionally deviate from this, but Justice Samuel Alito has surpassed even Justices Antonin Scalia and Clarence Thomas in his ideological purity.

The relevance of this to the next two elections is very clear. Four of the sitting justices are in their late 70s or older. This means that there is a strong possibility that President Obama will have a chance to appoint another justice before his term expires, but his ability to do so will be determined not simply by the health of the justices in question, but by the composition of the U.S. Senate. The increasing partisanship in the Senate, the continued virulent influence of the tea party and recent history strongly suggest that even if a vacancy occurs, Obama will be prevented from filling it (emphasis added).

Frank refers to the unceasing Republican obstructionism and argues courts are critical for defining laws that affect Americans on a daily basis, highlighting the importance of this year’s midterm elections. As he concludes in this piece,

This makes it highly likely that among the issues that will be determined in the next senatorial and presidential election will be the ideological makeup of the Supreme Court. Voters should act accordingly.

PFAW

A Small, But Important, Step Towards Common Sense in Judicial Confirmation Process

Last week, in advance of a Senate Judiciary Committee vote on six Arizona district court nominees, senior legislative counsel Paul Gordon asked if Arizona Senators Jeff Flake and John McCain would be able to convince their Republican colleagues to break what has become their practice of routinely delaying nominees’ votes. Since 2009, only five of President Obama’s judicial nominees had been allowed to have their committee votes cast without delay. Gordon urged the Senators to forgo this obstruction, especially given the enormous caseload in Arizona that is impeding the operation of the Arizona district court that has 6 of its 13 seats vacant. 

Yesterday, in a departure from their practice, the Committee actually voted on the nominees. 91. 5 KJAZZ reported:

“The liberal advocacy group People for the American Way called this a step toward fixing the judicial vacancy rate in Arizona, but noted that there are 28 people awaiting confirmation ahead of these nominees.”

Executive vice president Marge Baker also commented on the turn of events in an interview with Cronkite News:

“It wasn’t sustainable to keep delaying this process, and it seems that Arizona senators finally heeded reason. Arizona has had a terrible judicial vacancy rate. This is an important step towards fixing it.”

This was a relief for the state of Arizona, as well as a nice change of pace for Senate Republicans. But as a judicial vacancy crisis continues in Arizona and across the country, the work is far from over.

PFAW

Virginia Ban on Same-Sex Marriage Struck Down

On Thursday evening a federal judge ruled that Virginia’s ban on marriage for same-sex couples is unconstitutional. U.S. District Judge Arenda L. Wright Allen stayed the decision pending appeal, meaning that while the ban has been struck down, the ruling will not immediately take effect.

Close on the heels of a federal judge’s decision earlier this week directing Kentucky to recognize same-sex marriages from other states, Judge Wright Allen’s decision makes Virginia the first state in the South where a statewide ban has been entirely struck down.

In the South and across the country, it’s clear that Americans increasingly believe it is wrong to block committed couples from the protections and responsibilities that only marriage can provide. As Judge Wright Allen wrote in her decision:

Our nation's uneven but dogged journey toward truer and more meaningful freedoms for our citizens has brought us continually to a deeper understanding of the first three words in our Constitution: we the people. "We the People" have become a broader, more diverse family than once imagined.

PFAW Foundation

Justice Ginsburg Speaks Out Against Citizens United

With little over a month before the Supreme Court hears oral arguments in McCutcheon v. FEC, a money in politics case that some are calling the next Citizens United, Justice Ruth Bader Ginsburg spoke out this week on the damage that Citizens United v. FEC continues to cause to our democracy. 

Discussing the infamous 2010 Supreme Court decision that paved the way for unlimited corporate spending to influence our elections, Ginsburg told Greg Stohr of Bloomberg News:

“You take the limits off and say, ‘You can spend as much as you want,’ and people will spend and spend,” she said. “People are appalled abroad. It’s a question I get asked all the time: Why should elections be determined by how much a candidate can spend and why should candidates spend most of their time these days raising the funds so that they will prevail in the next election?”

It’s a great question, and one with a clear answer – they shouldn’t.

Justice Ginsburg is not alone in her concerns about the damage done to our democratic system.  A 2012 Brennan Center national poll found that nearly seven in ten respondents agree that “new rules that let corporations, unions and people give unlimited money to Super PACs will lead to corruption.” 

And this is not the first time Justice Ginsburg has publicly commented on the Citizens United decision. Early last year, Justices Ginsburg and Breyer released a statement in conjunction with a Court order in a campaign finance case out of Montana stating that:

Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.”  A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.

It is also not the first time she has commented on the Roberts Court more generally.  In an interview with the New York Times this weekend, Ginsburg called the current court “one of the most activist courts in history.”

In October, the high court will hear arguments in a case considering similar issues, McCutcheon v. FEC, for which People For the American Way Foundation submitted an amicus brief.  In this case, the Supreme Court could take the damage of Citizens United one step further by eliminating the caps on how much money an individual can contribute – in total – in each two-year campaign cycle.  It other words, the court would be striking down another protection against wealthy special interests overpowering our political system, allowing even more big money to flow into our elections.

Just what our democracy needs.  PFAW Foundation Executive Vice President Marge Baker noted last month:

Protecting the legitimacy of our political system, and restoring the faith of the American people in that system, is vital to a working democracy.

And as Justice Ginsburg highlighted this week, elections shouldn’t be determined by who has the biggest wallet.
 

PFAW Foundation

Shredding the Constitution in North Carolina

North Carolina legislators introduce a resolution declaring that the state can establish a religion and that federal courts can't declare laws unconstitutional.
PFAW

Sotomayor Calls Out Prosecutor’s Attempt to ‘Substitute Racial Stereotype for Evidence’

Supreme Court Justice Sonia Sotomayor issued a statement today in connection with the denial of a cert petition for a case from Texas. She agreed with the decision not to hear the appeal, but she recognized the need to also release a statement condemning the offensive, racially charged remarks of a federal prosecutor during a drug-focused trial.  During the cross-examination of a man who testified that he was not part of and did not know about friends’ plan to buy illegal drugs, the prosecutor asked:

“You've got African-Americans, you've got Hispanics, you've got a bag full of money. Does that tell you – a light bulb doesn't go off in your head and say, This is a drug deal?”

Sotomayor called the prosecutor’s comment “pernicious in its attempt to substitute racial stereotype for evidence, and racial prejudice for reason.” She went on:

“It is deeply disappointing to see a representative of the United States resort to this base tactic more than a decade into the 21st century. Such conduct diminishes the dignity of our criminal justice system and undermines respect for the rule of law. We expect the Government to seek justice, not to fan the flames of fear and prejudice.”

Sotomayor’s powerful response highlights the critical importance of diversity in our court system.  As Justice Sotomayor noted in 2001, “our experiences as women and people of color affect our decisions.”  During her confirmation, People For the American Way Foundation documented the far right’s vitriolic reactions to Sotomayor’s insightful discussion of the ways in which her life experiences as a Latina woman inform her view of the law. 

But today’s statement is one example of what that looks like in practice.  It highlights what it looks like when a woman of color on our nation’s highest court has the power to call out blatant racism in the judicial system. 
 

PFAW Foundation

Court Rejects Florida's Efforts to Curtail Early Voting

In an opinion affecting 5 counties, a federal court rules that Florida's curtailed early voting would disproportionately harm African Americans.
PFAW Foundation

PFAW's Jamie Raskin Takes on Right-Wing Rhetoric on the Courts

As the 2012 presidential campaign gears up, PFAW Senior Fellow Jamie Raskin has collected an extensive glossary of the Right Wing’s favorite rhetoric about the Supreme Court and the Constitution. Sen. Raskin's Daily Kos piece explains the coded phrases and euphemisms, such as “federalism,” “legislating from the bench” and “original intent,” that the Right Wing uses to project their political agenda onto the Founding Fathers’ vision for America.

Here’s an excerpt :

“Follow the Law, Not Make the Law” – Right -Wing Usage: What Republican judges and justices do and what Republican judicial nominees will do, e.g., “It’s only a matter of time before our five justices who follow the law and don’t make the law strike down the Affordable Care Act (Obamacare) and Section 5 of the Voting Rights Act and step up the campaign to invalidate jury verdicts and punitive damages in the states.” Preferred Usage: Essentially meaningless campaign rhetoric used to describe judges who toe the right-wing corporate line, e.g., “I hope they follow the law, instead of making it, and cut our jury verdict down to a price that won’t cost us so much freedom of speech.”

You can read the whole glossary here.

PFAW

Court Official - "I Just Don't See an End to Our Backlog"

Tennessee's case backlog is so bad it is now "borrowing" federal judges from Michigan.
PFAW

Fighting For Fair and Just Courts

We may see increased pressure this month to end the obstruction that is keeping so many Americans from having their day in court.
PFAW

Senate GOP - "Ignore What We Said Before"

Senate Republicans used to demand quick confirmation votes for any judicial nominee clearing the Judiciary Committee. Not anymore.
PFAW

Sen. Coons to Senate GOP: Rethink Your Strategy of Obstruction

The Delaware Senator notes that it should not take so long to confirm consensus lower court nominees.
PFAW

Ben Cardin Urges a Vote on a Maryland Judicial Nominee

Among the 19 judicial nominees who Republicans are blocking from a floor vote is an experienced Maryland state judge with bipartisan support.
PFAW

The Judicial Vacancy Crisis in Illinois

Sen. Durbin discusses how the chief judge of the Northern District of Illinois has asked the Senate to fill two vacancies as quickly as possible.
PFAW

Conservatives Livid at Bush-Appointed Judge who struck down DOMA

Last week federal judge Jeffrey White ruled that the Defense of Marriage Act (DOMA) is unconstitutional because it violates the equal protection clause, representing a stinging rebuke to the House Republicans’ efforts to defend the law through the Bipartisan Legal Advisory Group (BLAG). The Religious Right once hailed BLAG as a savior of the anti-gay law, arguing that the only reason judges were chipping away at DOMA was because of the poor arguments of the Justice Department. But White found that DOMA doesn’t pass constitutional muster under either a heightened scrutiny measure or the less stringent rational basis test.

Notably, former President George W. Bush nominated Judge White and the Senate confirmed him in a voice vote.

But even though he was nominated by a Republican and was unanimously confirmed by the Senate without Republican opposition, Religious Right activists are now accusing him of being an activist judge.

Gordon Klingenschmitt urged people to pray that God will “defeat and overturn the bad ruling by activist U.S. Federal Judge Jeffrey S. White” and that Congress will impeach him:

Let us pray. Almighty God, we pray You defeat and overturn the bad ruling by activist U.S. Federal Judge Jeffrey S. White in San Francisco, who ruled America’s founding fathers embraced sodomy and protected homosexual ‘marriage’ somehow in the U.S. Constitution, and therefore he struck down the Defense of Marriage Act, a 1996 federal law signed by President Clinton, that defined marriage as only valid between one man and one woman. We pray Congress impeaches Judge White, from Proverbs 19:25, “Strike a scoffer and the naive may become shrewd.” In Jesus’ name, Amen.

Liberty Counsel chairman Mat Staver blamed the Obama administration for the ruling as part of their plan to “sabotage” marriage, and called the judge’s ruling “absolutely ridiculous”:

"This is another outrageous example of the Obama administration abandoning the defense of the Defense of Marriage Act, simply trying to sabotage marriage as the union of one man and one woman and pushing a radical homosexual agenda," Staver contends.



"I think that it's absolutely ridiculous to say that there's no rational or even debatable or logical reason for the Defense of Marriage Act, to say that you cannot have same-sex unions," Staver offers. "And in this particular case, the court did the wrong thing by ultimately finding that the Defense of Marriage Act as applied in this case was unconstitutional."

Andrea Lafferty of the Traditional Values Coalition said Obama is leading a “direct war on marriage”:

Given the Obama administration's direct war on marriage, whether through attacking military chaplains' rights of conscience or refusing to defend DOMA, it's pretty clear which side he is on. Obama can't afford to come out of the proverbial closet though... for fear of losing an election.

America's moral virtue runs pretty deep. Despite the best efforts of this liberal government to affect that, the heavy hand of the Obama administration is no match for the Judeo-Christian values that inform the consciences of millions.

...which is why Obama is attempting to impose upon our rights.

Harsh Light of Exposure Makes Senate GOP Crumble

Earlier this week, Senate Republicans were harshly criticized for filibustering a highly qualified Cuban American with no committee opposition nominated for a seat on the Eleventh Circuit. Yesterday, they doubled down and set their sights on an unopposed district court nominee, Jesse Furman of New York. As we noted yesterday, the absurdity of the move cannot be overstated. The Senate GOP wasn’t just moving the goalposts, they were moving the entire football field.

It appears that the barrage of deserved criticism they received for this outrageous escalation in their war against the American judiciary has had an effect: It was just announced that the cloture petition will be vitiated (i.e., withdrawn). More than five months after Furman was approved without opposition by the Senate Judiciary Committee, he will finally get his day on the Senate floor. In turn, assuming he is confirmed, more New Yorkers will get their day in court.

This is a victory for every American who wants to protect our nation’s judicial system.

PFAW

Jill Pryor Nominated to the 11th Circuit

President Obama has announced the nomination of Jill Pryor to the Eleventh Circuit Court of Appeals. Pryor would fill a vacancy that has been declared an emergency by the Administrative Office of the U.S. Courts.

Pryor's legal skills are recognized by her peers. The Best Lawyers in America recognized her from 2009-2011, and Georgia Super Lawyers selected her as one of the "Top 100 Super Lawyers" in 2010 and 2011. In addition, she has served as president of the Georgia Association of Women Lawyers, as well as on the Georgia State Bar's Board of Governors.

Her peers are not alone in recognizing Pryor's qualifications. Georgia's Republican senators have both stated that she is qualified for a lifetime judicial appointment. In a January 24 letter to President Obama, Saxby Chambliss and Johnny Isakson recommended three attorneys to fill judicial vacancies in Georgia. They recommended Pryor for one of the two vacant seats in the Northern District of Georgia, but President Obama recognized that she has the skills and experience needed to serve on the Eleventh Circuit Court.

This seat has been vacant since August of 2010. We hope that Sens. Chambliss and Isakson, who clearly recognize Pryor's qualifications and judicial temperament, quickly give their approval for the Judiciary Committee to proceed to examine the nomination.

PFAW

Ohio Judicial Nominee Demonstrates Bipartisan Support

President Obama has gone out of his way to nominate to the federal bench highly qualified people who have earned the respect of Democrats and Republicans alike. That was clear in yesterday's Judiciary Committee hearing for Jeffrey Helmick to serve as a judge in the Northern District of Ohio.

That Helmick was nominated by Obama and recommended by Ohio's Sen. Sherrod Brown makes clear his support from Democrats. He was originally recommended to Brown and then-Sen. George Voinovich, a Republican, by a bipartisan committee. Rob Portman was elected to replace Voinovich in 2010, he has approved of Helmick’s nomination moving forward.

At the hearing, Sen. Brown discussed the strong support that state Republicans have offered the nominee.  For instance, Jack Zouhary, a 2006 George W. Bush nominee, wrote in support:

You will find no better candidate than Jeff. He possesses the intelligence, the passion for our justice system, and the necessary temperament and people skills to be an outstanding district court judge.

Similar praise has come from Mark Wagoner, the Republican who chairs the Ohio's Senate's Judiciary Committee. Sen. Brown read an excerpt from Wagoner's letter of support:

[Helmick] is someone who has stood for principles, litigated honestly, and ably defended our constitutional system of government. These types of traits would make Mr. Helmick an outstanding federal judge.

Helmick should be confirmed quickly. But if the growing backlog of nominees languishing on the Senate floor isn't cleared up, Ohioans' access to justice will be at risk.

PFAW
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