To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: September 25, 2014
Subject: PFAW Foundation’s Supreme Court 2014-2015 Term Preview
The beginning of a new Supreme Court term has become a time to worry, “What’s next?” In the past two terms alone, often in 5-4 decisions, the Roberts Court has severely undermined the Voting Rights Act, continued its assault on the American people’s efforts to limit money in politics, strengthened the hand of employers who discriminate, significantly eroded church-state separation, discovered religious rights for for-profit corporations seeking to deny female employees needed contraception coverage, undercut unions, and found ways to help large corporations bypass laws designed to limit their power over small businesses and ordinary people.
As bad as the Roberts Court has been, there have also been some good decisions in the most recent terms. For instance, the Court struck down the odious Defense of Marriage Act, upheld the EPA's general authority to issue regulations on greenhouse gas emissions from power plants, and unanimously recognized our Fourth Amendment right to privacy concerning our smart phones.
The 2014-2015 Term is set to begin on October 6, the traditional First Monday in October, and the Court will be hearing a number of important cases. At the same time, perhaps half the cases it will hear this term have not been determined or announced, and there is substantial speculation on whether it will hear cases on several high-profile issues, marriage equality most prominent among them. Below is a summary of some of the major cases the Court may hear this term, along with cases already scheduled that we will be following.
CASES THAT THE COURT MIGHT HEAR
If the Court accepts a marriage equality case, it will obviously become the blockbuster case of the term (and perhaps the decade). The Court has already been asked to hear appeals of pro-equality rulings by three circuit courts: From the Tenth Circuit are Herbert v. Kitchen (Utah) and Smith v. Bishop (Oklahoma). From the Fourth Circuit are Rainey v. Bostic, Schaefer v. Bostic, and McQuigg v. Bostic (all Virginia). From the Seventh Circuit are Bogan v. Baskin (Indiana) and Walker v. Wolf (Wisconsin). While states and government officials who lost in the lower courts are filing the appeals, the couples who won the cases are also urging the Court to hear the appeals, so there can finally be a national resolution to the issue.
Should one of the remaining circuit courts uphold a state marriage ban, the resulting split among circuits on such a major constitutional issue would almost guarantee review by the Supreme Court. But if every circuit continues to rule the same way, the Justices might decide to let the issue be resolved there.
Conservatives like Scalia and Thomas, who have in case after case shown their hostility to LGBT equality but may be unsure of how Kennedy would vote, might not be willing to risk a Supreme Court precedent that same-sex couples have a constitutional right to marry. From their perspective, if they can’t change the outcome around the country, why make it worse by adding a jurisprudential nightmare from the nation’s highest court that would taint American law for decades to come?
For Justices likely to recognize the constitutional right to marriage equality, the calculation might be different. They, too, not knowing Kennedy’s position, might not want to risk a 5-4 ruling in the “wrong” direction on a major constitutional and societal issue. But even if they could be certain of being in the majority, they might find advantages to having the Court stay out. Justice Ginsburg, for instance, has suggested publicly that Roe v. Wade went “too far, too fast,” provoking a backlash that could otherwise have been avoided. If the legal question of marriage equality is being decided rightly in all the circuit courts, some Justices might rather leave well enough alone. In fact, Justice Ginsburg told a group of law students in mid-September that without a circuit split, she saw “no urgency” for the Court to take up the issue now, although she added that she expects the Court to take it up “sooner or later.”
Should the Court grant cert on one or more of the appeals, it could answer a number of critically important questions in addition to whether states can prohibit same-sex couples from marrying.
Exactly which constitutional right do the bans violate? While numerous courts have ruled in favor of same-sex couples, they have been anything but unanimous in their reasoning: Some have suggested that the bans violate the Due Process Clause, because the longstanding, fundamental right to marry includes the right to marry someone of the same sex. Other judges indicate that the bans violate the Equal Protection Clause because they deny the right to marry based on the sex of the people seeking to get married. Still others suggest that the bans violate the Equal Protection Clause because they discriminate against gays and lesbians. While the different legal rationales would all have the same immediate result (marriage equality), they could create very different legal precedents and have very different impacts down the line as lower courts consider other types of discrimination, whether aimed at gays and lesbians, at transgender people, or at others.
A Supreme Court ruling might decide what level of scrutiny the Equal Protection Clause requires for laws that discriminate against gay people, an issue not squarely faced in previous cases. Most government classifications are subject to – and easily pass – “rational basis” scrutiny by the courts: The law is constitutional as long as it’s rationally related to some legitimate government interest. (The Court has said that animus against gays and lesbians is not a legitimate purpose, which in the past has let it bypass the question as to whether anti-gay laws warrant more scrutiny from the courts.)
But a few types of laws trigger heightened Equal Protection scrutiny. Sex-based classifications are subject to intermediate scrutiny: They must be substantially related to an important government interest. Race-based classifications are generally subject to strict scrutiny, the highest level: They must be narrowly tailored to achieve a compelling government interest. If the Court rules that laws discriminating against lesbians and gays warrant some level of heightened scrutiny, that would have an enormous impact nationwide on all kinds of laws that discriminate against lesbians and gays, not just marriage bans.
The Court’s discussion of this issue could also shed light on whether eliminating private discrimination against LGBT people is (in the Court’s eyes) a compelling government interest. This could have an enormous impact as courts consider right wing challenges to anti-discrimination laws on the basis of the federal Religious Freedom Restoration Act or state-law analogs.
Opponents of the Affordable Care Act strategically launched lawsuits in four different circuits challenging federal subsidies for millions of Americans buying health insurance on federally-run exchanges. The circuits were apparently selected to maximize the possibility of a circuit split, which in turn would maximize the likelihood of getting the case heard by the Roberts Court, which (they hope) would deliver a crippling blow to Obamacare. Decisions have been reached in two of the circuits, although one has since been vacated.
Section 1311 of the ACA says states should set up insurance exchanges, while Section 1321 of the Act says the federal government can set one up if a state doesn't. Subsidies are available for less well-off people getting health insurance through an exchange, based on the amount the person pays for the insurance s/he is enrolled in through an exchange "established by the state under [section] 1311" of the ACA. The law’s opponents hope to have the Supreme Court rule that Congress intended for subsidies to be unavailable to Americans purchasing insurance through the federally-established exchanges that the law calls for in cases where the state does not step in. In other words, the argument is that Congress intended to undercut the financial viability of the law and thwart its central purpose.
A unanimous panel of the Fourth Circuit rejected this wild claim in King v. Burwell. However, two far right judges on the D.C. Circuit formed a majority in a three-judge panel ruling actually agreeing with the Obama care opponents in Halbig v. Burwell. Dissenting Judge Harry Edwards recognized the lawsuit as a “not-so-veiled attempt to gut the Patient Protection and Affordable Care Act,” noting that “[i]t is inconceivable that Congress intended to give States the power to cause the ACA to crumble.” The full D.C. Circuit subsequently vacated the ruling and will consider the issue en banc, and most observers expect a ruling more like the Fourth Circuit’s.
But even if that happens, there are still lawsuits percolating in Indiana (Seventh Circuit) and Oklahoma (Tenth Circuit), so the hoped-for circuit split may yet occur. If it does, the Roberts Court is almost certain to consider the issue. While the case is transparently political and legally weak, that did not stop the conservative Justices when it came to the Commerce Clause challenge to the individual mandate.
The Roberts Court may hear one or more cases involving religious nonprofits that oppose the ACA’s contraception coverage requirement, in a sequel to Hobby Lobby v. Burwell. In that case, the Roberts Court gave certain for-profit corporations religious liberty rights under the Religious Freedom Restoration Act (RFRA), then completely rewrote the law to give the chain store the right to “exercise” its religion by refusing to comply with the ACA’s contraception coverage requirement.
Under RFRA, a federal law cannot impose a substantial burden on a person’s religious exercise unless it is in furtherance of a compelling governmental interest, and it is the least restrictive means of doing so. In Hobby Lobby, the Roberts Court concluded that the corporation and its owners suffered a “substantial” burden” on their religious exercise because the owners were offended by the contraception coverage requirement, even though it did not restrict or burden what they may believe or do. The majority also concluded that the law was not the least restrictive means of furthering the government’s interest in women’s health, because the Administration offers religious nonprofits an accommodation: They are exempt if they simply sign a form certifying that they are a religious nonprofit that objects to the provision of contraceptive services, and provide a copy of that form to their insurance issuer or third-party administrator, which then has the responsibility to pay for and provide the coverage. (Churches, in contrast, are wholly exempt.) The Roberts Court concluded that the federal government can make this accommodation available to for-profit corporations, meaning the coverage requirement is not the least restrictive means of achieving the ACA’s goal.
But three days later, the Court issued a temporary injunction against enforcing even this accommodation against Wheaton College, a non-profit religious institution that argued that the accommodation substantially burdens its religious freedom. This prompted a furious dissent from the three women Justices. Although the merits of the case are still being argued before a lower federal court, this was an ominous sign of how the Roberts Court will address the legal question when it inevitably reaches the high court.
Another high-profile case (or one similar to it) that may reach the Court involves Little Sisters of the Poor. This religious nonprofit organization, too, has a religious objection to the accommodation that was designed to meet its religious objections, arguing that the form is like a permission slip that would trigger contraception coverage, making the nuns complicit in sin. However, the Little Sisters’ insurer is classified as a “church plan,” which is actually exempt from the ACA requirement. So regardless of whether the Little Sisters signed the form, their employees would still not have the contraception coverage. Nevertheless, last January, while its RFRA suit against the contraception coverage provision was before the Tenth Circuit (where it is still pending), the Supreme Court enjoined the federal government from enforcing the law until a final resolution on the merits.
It seems likely that there will be a request that this issue be considered by the Supreme Court at some point this term, either through one of these cases or one similar to them.
CASES CURRENTLY BEFORE THE COURT
EMPLOYMENT DISCRIMINATION AND WORKERS’ RIGHTS
The Supreme Court is to decide to what extent employers can treat pregnant workers temporarily unable to work differently from other workers temporarily unable to work.
This case involves Peggy Young, a pregnant employee of UPS with temporary medical restrictions on how much she could safely lift. UPS did not make any accommodations for her, such as temporary alternative work. As a result, she spent several months on unpaid leave, during which she lost her medical coverage.
In 1976, the Supreme Court ruled that discriminating against employees who are pregnant was not sex discrimination under Title VII. Congress corrected that interpretation of the law in 1978 with the Pregnancy Discrimination Act (PDA), which has two relevant provisions. First, it specifies that sex discrimination includes discrimination on the basis of pregnancy, childbirth, or related medical conditions.
The second provision explains how to apply that general principle: It says that women affected by pregnancy “shall be treated the same for all employment-related purposes … as other persons not so affected but similar in their ability or inability to work.” This establishes a basis of comparison. So while a typical sex discrimination case looks at how a female plaintiff is treated in comparison to similarly situated men, a PDA case looks at how she is treated in comparison to non-pregnant workers with similar ability (or inability) to work.
UPS’s collective bargaining contract calls for UPS to accommodate temporarily disabled employees if the disability is due to an on-the-job injury, or if they have lost their DOT certification to drive. UPS also accommodates employees who have a permanent impairment under the Americans With Disabilities Act. UPS says its policy is “pregnancy-blind:” They claim they are treating Young the same way they’d treat a non-pregnant employee whose injury doesn’t fit any of the above conditions.
But Young argues that isn’t the proper analysis under the PDA. She points out that UPS would have made an accommodation for someone “similar in their ability or inability to work” to her if they were in one of those three categories. So, she concludes, the plain text of the PDA requires UPS to accommodate her, as well.
The Supreme Court is to decide if employers can deny overtime pay to employees at “customer fulfillment” distribution centers for the time they spend waiting for mandatory security screenings.
This is a class-action lawsuit brought by Jesse Busk and Laurie Castro, two former employees of Integrity Staffing Solutions, which provides workers to work in the warehouses of companies like Amazon.com. At the end of the shift, the company requires every employee to go through a security check before they leave the facility to make sure they aren’t stealing the merchandise. The employees wait as long as 25 minutes to be searched. Busk and Castro claim that they should have been paid overtime for this time under the Fair Labor Standards Act (FLSA), as should all current employees, as well.
FLSA requires overtime pay when a covered employee works more than 40 hours in a workweek. In 1947, Congress helped define what counts as “work” by passing the Portal-to-Portal Act (PPA), which says that FLSA’s overtime requirement doesn’t apply to activities that are “preliminary” or “postliminary” to an employee’s primary job responsibilities. In a 1956 case called Steiner v. Mitchell, the Supreme Court interpreted the PPA as requiring overtime only for tasks that are an “integral and indispensable part of the principal activities for which covered workman are employed.”
Busk and Castro say that any activity required by and beneﬁtting the employer (such as the security searches) are part of the actual job, not “postliminary” to it, so they count as time at work under FLSA and should generate overtime pay. They get support from an amicus brief submitted by the National Employment Lawyers Association, which details how loss-prevention activities have become integrated into the modern retail work routine, making searches like those at issue here part of an employee’s principal activities.
The workers won at the Ninth Circuit, but the court used different reasoning: that the searches are “postliminary” (so the Portal-to-Portal Act applies), but that they are an “integral and indispensable part” of the workers’ principal activities and therefore subject to overtime pay. Integrity (supported by an amicus brief from the Obama Administration) asserts that the searches are “postliminary” to work, are not an “integral and indispensable part” of the employees’ principal activities and, therefore, don’t trigger the overtime requirement.
Part of the company’s argument seems to be a results-based pitch to a corporate-friendly Court: In its certiorari petition urging the Justices to hear its appeal, Integrity Staffing wrote that since the Ninth Circuit ruling, “plaintiffs’ lawyers have brought nationwide class actions against a number of major employers—including Apple, Amazon.com, and CVS—seeking back pay (plus overtime and penalties) for time spent in security screenings.” Notice that it isn’t employees who are suing, but “plaintiffs’ lawyers,” a framing that is red meat for right-wing ideologues. This argument also seems to have less to do with discerning congressional intent and more to do with protecting large corporations.
The Supreme Court is to decide if employers can escape liability for illegal discrimination by arguing that the EEOC failed to make a sufficiently good-faith attempt to reach a settlement with the employer.
Mach Mining has never hired a woman for a mining position. A woman who had been turned down several times for a coal mining job filed a sex discrimination complaint with the Equal Employment Opportunity Commission, a step that Title VII requires before filing a lawsuit. EEOC looked into the allegation, found it had merit, and – again, as required by Title VII – sought to negotiate an end to the alleged sex discrimination “by informal methods of conference, conciliation, and persuasion” before suing. After several months without success, the EEOC notified the company that it felt further efforts would be futile and initiated a lawsuit. Mach Mining says the case should be dismissed on the grounds that the EEOC didn’t make a good-faith conciliation effort. In response, the EEOC says Title VII doesn’t allow such a defense.
While several other circuits have ruled otherwise, the Seventh Circuit in this case concluded that Title VII cannot be interpreted to allow courts to inquire into the adequacy of the EEOC’s conciliation efforts. For one thing, Title VII has no express provision for an affirmative defense based on a defect in the EEOC’s conciliation’s efforts. It also calls for the EEOC to “endeavor” to end the discrimination through “informal methods of conference, conciliation, and persuasion.” If it can’t reach a result “acceptable to the Commission,” it can sue. The Seventh Circuit interpreted this as giving the EEOC great deference.
The court also noted that Title VII makes the process confidential, with penalties for making the information public without the consent of everyone concerned. That could prevent the EEOC from showing the court the evidence that it had sought to conciliate in good faith. It seems unlikely that Congress wrote Title VII to require the EEOC to defend its conciliation efforts in court but made its ability to do so dependent on the permission of the employer being sued. The court also concluded that there would be no meaningful standard of review. For instance, just how hard should the agency pursue an agreement?
A Supreme Court ruling for the employer could give employers a significant tool to stymie legitimate lawsuits against unlawful employment discrimination. As the Seventh Circuit wrote:
Simply put, the conciliation defense tempts employers to turn what was meant to be an informal negotiation into the subject of endless disputes over whether the EEOC did enough before going to court. Such disputes impose significant costs on both sides, as well as on the court, and to what end?
All the employer should legitimately hope to gain is some unspecified quantum of additional efforts at conciliation by the EEOC. The result of such a defense, as we have said in a closely related context, is to “protract and complicate Title VII litigation, and with little or no offsetting benefit.”
The Supreme Court is to address whether a state prison’s prohibiting a Muslim prisoner from growing a half-inch beard violates the federal Religious Land Use and Institutionalized Persons Act.
This case originated with a handwritten request to the Supreme Court from Gregory Holt (aka Abdul Maalik Muhammad), a Muslim prisoner in Arkansas, to hear his case. He states that his religious beliefs require him to have a beard, and he seeks to grow a half-inch beard. The state Department of Corrections prohibits beards generally, but allows quarter-inch beards grown for medical reasons. Muhammad sees his request as a compromise (since his religious beliefs really would have him grow it much longer) that has been accepted in prisons elsewhere.
Since he is in a state prison, Muhammad’s case is governed by a federal law called the Religious Land Use and Institutionalized Persons Act, or RLUIPA. Passed unanimously by Congress in 2000, RLUIPA requires prisons accepting federal funds to give greater religious liberty protections to inmates than is required by the First Amendment’s Free Exercise Clause. Similar to the better-known Religious Freedom Restoration Act (RFRA), which was at issue in Hobby Lobby, RLUIPA is triggered when the government imposes a “substantial burden on the religious exercise” of a person confined to an institution. When that happens, the action can be upheld only if the government can demonstrate that the burden: “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
The state argues that the no-beard policy furthers the compelling government interests in prison safety and security, and that the proposed half-inch accommodation would not be as effective as the no-beard rule in achieving those purposes. For instance, they provide the opinions of penal experts that prisoners could use the beards to hide contraband, and that escaped prisoners could too easily and quickly change their appearance simply by shaving. Muhammad (now represented by counsel) argues that the lower courts, which ruled against him, did not provide the strict scrutiny of the state’s arguments that is required by RLUIPA.
In Hobby Lobby, the Supreme Court significantly rewrote RFRA, watering down the “substantial burden” requirement and applying the religious liberty law to for-profit corporations. Neither factor is relevant to this case, meaning the Court could rule in favor of Muhammad without rewriting the law. But the Roberts Court is known for playing the “long game.” Even if the Court rules unanimously for Muhammad, they may not all agree on the reasoning: The conservatives could write an opinion designed to be cited in future RFRA litigation strengthening the hands of those on the right who would reshape RFRA from a shield against government oppression into a sword.
The Supreme Court is to address whether Alabama engaged in unconstitutional racial gerrymandering when it drew new state House and Senate district lines that channeled large numbers of African Americans into districts that were already majority-minority.
The GOP-controlled Alabama state legislature enacted a redistricting plan that transferred a significant portion of the black population that had previously been in majority-white districts into districts that were already majority-black. In so doing, the legislature was seeking to achieve certain percentages of black voters in the majority-black districts. At issue is whether legislators engaged in an unconstitutional effort to separate voters by race, or whether they followed traditional redistricting criteria in a way that was necessary to comply with the Voting Rights Act.
Due to population shifts, majority-black districts established after the 2000 Census lost population and had to be redrawn after the 2010 Census to bring in new people. In some cases, the population loss was disproportionately white, meaning that a significantly higher percentage of the remaining population was African American than before. In redrawing the lines while keeping the same number of majority-black districts, the legislature made two decisions that led to what some call “bleaching” – drawing lines so that large numbers of African Americans in majority-white districts would be redistricted into supermajority-black districts, and diminishing African Americans’ political influence in much of the state.
First, they chose to reduce the permissible population difference between districts from 10% (the 2000 standard) to 2%. To achieve district populations that close to each other, many more people would have to be drawn into the modified black-majority districts than would otherwise have been necessary. That huge numbers of those people would be blacks removed from majority-white districts was determined by the second decision: Ostensibly to comply with the requirement under Section 5 of the Voting Rights Act (this was before Shelby County) that new lines not lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise, the African American percentages in the redrawn majority-minority districts should be at least whatever they had become in 2010.
This reapportionment was upheld by a divided three-judge federal district court. The majority concluded that race was not the predominant factor in drawing the redistricting boundaries, so that they need not be analyzed under strict scrutiny as in the 1993 Shaw v. Reno case. The majority also concluded that even if strict scrutiny applied, the legislative boundaries were narrowly tailored to achieve the compelling purpose of compliance with the preclearance provisions of Section 5 of the Voting Rights Act, which applied at the time. The plaintiffs in this case – the Alabama Legislative Black Caucus and state Democrats – challenge those conclusions, arguing that legislators had misinterpreted Section 5, that race was impermissibly the overriding criterion used by legislators in drawing lines, and that the redistricting plan violated the Fourteenth Amendment.
FREE SPEECH AND SIGN REGULATIONS
The Supreme Court will hear a church’s Free Speech challenge to city rules regulating the size and placement of various types of signs, which affect the signs it puts up to direct people to its church services.
This case was brought by a small church (25-30 adult members) in Arizona that places signs up to invite people to its weekly services and inform them where they are being held. Good News Church and its pastor Clyde Reed are urging the Court to strike down the town of Gilbert’s sign ordinance, which treats some signs (such as directional signs for events, like a fair or, in this case, a church service) differently from others (like political, real estate, or ideological signs). The different types of signs have different rules on how large they can be, and where and when they can be posted. Good News Church argues the law is an unconstitutional content-based infringement of its First Amendment rights. The lower court had upheld it as content-neutral.
Gilbert regulations generally require a permit before posting a sign, with a number of exceptions that can be posted without a permit. These exceptions (each with specific size, number, and placement rules) include construction signs, open house signs, parking signs, building identification signs, garage sale signs, street address signs, and restaurant menu signs. The church devotes much of its focus to three of the exceptions:
The church has signs in the first category to tell people about their weekly church services in the space they rent. The maximum size is smaller than political and ideological signs, fewer can be posted, and they cannot stay up nearly as long. Represented by the far-right Alliance Defending Freedom, Good News Church argues that the city is violating its First Amendment rights by applying different rules to different types of noncommercial signs based on their content. According to the church, any classification based on what a sign says is content-based and therefore subject to the highest level of scrutiny. And if the law’s purpose is, say, to promote traffic safety or aesthetics, then what difference should it make if the sign is for a church service, political candidate, or particular ideology?
A divided panel of the Ninth Amendment disagreed, ruling against the church. It said the distinctions among different types of signs are content-neutral (and thus subject to a somewhat lower level of scrutiny) because Gilbert’s interests in regulating temporary signs are unrelated to the specific content or message of the sign. Each exemption is based on objective criteria related not to the sign’s message, but to the reason for the exemption (such as need for communication about elections, or the need to let event sponsors inform people how to get to the event).
HOLDING FRAUDULENT CORPORATIONS ACCOUNTABLE
The Court is to decide whether the clock stops on a deadline to sue for securities fraud when someone files a class action suit.
This case relates to a key 1974 precedent called American Pipe & Construction Co. v. Utah, where the Supreme Court ruled that the filing of a class action lawsuit stops the clock (“tolls” in legal parlance) on the statute of limitations on filing federal antitrust claims for all potential members of the class, including those who are not actively involved with or even aware of the class action lawsuit. So if a court then doesn’t certify the class for some reason or dismisses its claims, but makes that decision after the statute of limitations has passed, those who would have been included in the class have not lost their opportunity to have their day in court just because they hadn’t made an individual filing in the case.
The current case relates to the financial meltdown of the 2000s and involves federal laws in the Securities Act of 1933 prohibiting sellers of securities from misleading investors. The law has two key time limits: (1) You generally have one year to file a lawsuit, and that can be a year after the untrue or misleading statement is made or discovered. (2) But there is an additional limit, one that restricts just how long after the fact you have to discover the wrongdoing: “In no event shall any such action be brought … more than three years after the security was bona fide offered to the public [or, depending on which section of the law is involved] more than three years after the sale.” The Second Circuit concluded that the American Pipe rule did not apply to this statute.
One of the great benefits of class action litigation is that it protects the rights of people who cannot afford to themselves engage in litigation and may not even realize they have been wronged. It also vastly enhances our society’s ability to hold large corporations responsible when they violate people’s rights. The rule from American Pipe has served that purpose well. But in other contexts, the Roberts Court has significantly undercut the ability of Americans to utilize class actions to protect their rights. If the Court rules that American Pipe doesn’t apply in the securities fraud context, it will be important to see if its reasoning also undercuts American Pipe as a precedent in other contexts.
The Court is to address what investors need to prove to hold companies accountable for material misstatements in investment material.
When responding to a public offering of company shares, investors may rely on a company’s registration statement with the Securities and Exchange Commission. Under Section 11 of the Securities Act of 1933, investors can sue if that statement “contained an untrue statement of a material fact or omitted to state a material fact [that was] necessary to make the statements therein not misleading.” This case asks what investors need to prove if the purportedly “untrue statement” was the company’s opinion that it wasn’t breaking the law.
Omnicare is the nation’s largest provider of pharmaceutical care for the elderly and other residents of long-term care facilities. In Omnicare’s registration statement, it said that “we believe” that its financial relationships with pharmaceutical manufacturers were legal. The investors here claim that some of those deals constituted unlawful kickbacks. The question is whether that allegation is enough to trigger Section 11.
According to Omnicare, for the investors to have a claim under Section 11, they have to allege that Omnicare didn’t believe the statement when it was made. Otherwise, companies could be held liable for statements of opinion that turn out later not to be true. Two circuit courts have taken that view.
But in this case, the Sixth Circuit took a different approach, one that makes it easier for investors to file a Section 11 claim. That court reasoned that Section 11 is a “strict liability” statute where the state of mind of company officials isn’t relevant, so it’s sufficient to allege that the opinion was false, regardless of whether the company knew at the time it was false. That’s the ruling the investors in this case are asking the Supreme Court to uphold.
In an amicus brief, the Obama Administration takes a middle ground, in which the company isn’t held liable only because it expressed an opinion that turned out not to be true. The Administration argues that a statement of opinion is actionable under Section 11 if: (1) the company didn’t believe it at the time (which both parties in this case agree on), or (2) there was no reasonable basis for the opinion at the time, even if it was sincerely held (which Omnicare disagrees with).
Any ruling by the Roberts Court should keep in mind that Congress enacted Section 11 to encourage maximum disclosure by companies making a public offering. After all, people associated with the company know far more about the business than potential investors could ever know, and Section 11 was intended to dissuade corporations from tricking investors.
Just as the Lochner case defined the Supreme Court a century ago as it turned conservative economic policies into constitutional dogma, America finds itself living through the Citizens United era, where the Court again routinely rules in favor of corporate and other powerful interests. By the end of June, we will know if the current term will have been as damaging to Americans’ fundamental rights as recent terms have been.
WASHINGTON – The Senate today confirmed Judge Robert Wilkins to the U.S. Court of Appeals for the District of Columbia Circuit. Wilkins was one of three nominees blocked for months by Senate Republicans. The GOP admitted that they would block any and all of President Obama’s nominees to fill the three vacancies on this critically important court no matter who they were, which provoked the Senate to change its filibuster rules. Wilkins’ fellow nominees Patricia Millett and Nina Pillard were confirmed late last year.
Marge Baker, executive vice president of People For the American Way, responded to the vote:
“Today’s vote sends a supremely qualified and capable nominee to the nation’s second most influential court. It also puts an end to Senate Republicans’ dishonest effort to keep President Obama from filling vacancies on the D.C. Circuit, an effort that was destructive and transparently political.
“Now that the D.C. Circuit’s seats are full, it can get on with its important work for the American people. And just as importantly, if the Senate can put petty partisan fights behind it, it can get on with doing the American people's work as well, including filling the other long-vacant federal court seats across the country.”
WASHINGTON – The Senate today voted to confirm Patricia Millett to the U.S. Court of Appeals for the District of Columbia Circuit. Millett is the first of President Obama’s three nominees to the court to receive a yes-or-no vote following the change in Senate filibuster rules in response to unprecedented Republican obstruction.
Marge Baker, executive vice president of People For the American Way, responded with the following statement:
“Finally, we are seeing progress in filling the three vacancies on the D.C. Circuit. There is no doubt that Patricia Millett and the other two nominees to this court -- Nina Pillard and Robert Wilkins -- are eminently qualified. The Republican opposition to these nominees has not been about their merits, but simply about keeping the president from filling these seats with any nominees. Millett will fill a seat that has been vacant since Chief Justice John Roberts was elevated to the Supreme Court in 2005. It’s about time this blockade was broken.
“We look forward to the Senate’s prompt confirmation of Pillard and Wilkins as well. Relentless Republican obstruction has for too long been crippling our federal courts. Confirming these nominees will be an important step toward getting the Senate, and our courts, working again.”
Last month, Senate Democrats were forced to change the rules of the filibuster after Republicans vowed to block all three of President Obama’s nominees to the D.C. Circuit Court of Appeals despite the fact that they had no problem with the nominees themselves.
But in the alternate universe of the Family Research Council’s Tony Perkins, when it comes to judicial nominations, “Senate Republicans have rarely displayed political courage stopping only a handful of nominees – nominees that ideologically would have been to the left of Hugo Chavez.”
Perkins said in his radio address today that the president’s nominations have in fact violated God’s “specific guidance on the selection of judges.”
The now majority leader pushed the nuclear option button effectively silencing the Senate minority and all but guaranteeing the president's nominees will be confirmed. Trust me; Senate Republicans have rarely displayed political courage, stopping only a handful of nominees -- nominees that ideologically would have been to the left of Hugo Chavez. The President is now free to pack the courts with ideologues that will both advance and protect his socialist policies. There is a reason that God gave specific guidance in the selection of judges. Few things will ruin a society quicker than unqualified, activist judges.
Looking through a list of Obama judicial nominees delayed or blocked by the GOP, it’s hard to find any who resemble the late Venezuelan president, but the FRC’s perception of these things tends to be skewed. After all, the group attacked both of the women in President Obama’s slate of nominees to the DC Circuit for being too “feminist,” one because she successfully fought for the Family and Medical Leave Act, and one because she supports having more than one woman on the Supreme Court.
The Family Research Council’s attempts to paint President Obama’s female nominees to the D.C. Circuit Court of Appeals as “radical feminists” aren’t going so well.
First, the FRC attacked Nina Pillard for quoting something the late Chief Justice Rehnquist wrote about the importance of the Family and Medical Leave Act.
Now, the FRC seems to think it’s found a winning argument against Patricia Millett, the other woman in the slate of three D.C. Circuit nominees: She thinks there should be women on the Supreme Court.
In his daily email on Friday, FRC’s Tony Perkins wrote:
As it stands right now, the D.C. Circuit is evenly divided between Democrat and Republican appointed judges -- but that's about to change. Using the nuclear option, the Senate moved forward with reconsidering Patricia Millett, the first of three previously blocked nominees the President will be employing to pack the court in his favor. Millett has shown an activist tendency in how she views the court, believing it's more important it look a certain way than judge a certain way.
When President Bush nominated Samuel Alito to replace Justice Sandra Day O'Connor, Millett bemoaned that O'Connor wasn't being replaced by another woman, as if gender impacts who's most qualified to apply the Constitution to the facts in a case or that our highest court should be seen as a representative body. She sees the redefinition of marriage turning on her own definition of fairness and not the law.
FRC seems to have picked up this line of attack from a talking points document put together by the right-wing Judicial Action Group, which claims that Millett's comment in a 2009 interview that “there was a lot of upset over the failure to put a woman on to replace Justice Sandra Day O’Connor” shows that she would have a poor "judicial temperament.”
Yes, this is actually the argument that FRC is using against an accomplished woman’s judicial nomination in 2013.
Here’s what Millett actually said, in a 2009 interview about whom President Obama might choose to replace Justice David Souter on the Supreme Court. At the time, there was just one woman on the court and Millett stressed that there were “many qualified women” who would make President Obama’s short-list, even if gender was not considered:
There was a lot of upset over the failure to put a woman on to replace Justice Sandra Day O’Connor and…it would be extraordinary to have no women on the Supreme Court in this day and age. But even to only have one is, I think, a sorry statement about the appointment process thus far, and where it’s gotten in the last eight years.
So, I think the pressure to have a Supreme Court that looks in many ways – and gender is just one way – that is reflective of the public it serves, would require that a woman gets serious consideration. And there’s no doubt that there are many, many qualified women who – entirely apart from their gender, if nobody even considers about their gender –would be short-listed for the Supreme Court in any event, so it makes that easy.
By the way, in case you were wondering about FRC’s claim that Millett “sees the redefinition of marriage turning on her own definition of fairness and not the law,” that also comes from JAG's talking points. JAG points to an interview Millett gave previewing the Supreme Court’s hearing of the DOMA case, in which she referred to the question before the Court – whether DOMA’s unequal treatment of same-sex and opposite-sex marriage’s violated the Fifth Amendment’s due process clause – as the “fundamental fairness question before the Court.” That is, she was accurately describing the issue the Court was asked to consider; she never implies that the issue is “turning on her own definition of fairness and not the law.”
After President Obama was elected, the right-wing Judicial Confirmation Network changed its name to the Judicial Crisis Network and altered its mission from “working to ensure a fair appointment process of highly qualified judges and justices” to blocking anyone Obama appoints to the bench.
The group’s name and mission statement aren’t the only things to have changed under a Democratic president. JCN’s chief counsel Carrie Severino appeared last week on Sandy Rios In The Morning to decry the Senate’s recent move to modify the filibuster to allow a simple majority to end debate on most nominees – a rules change that the JCN once said it supported “regardless of what party’s in power.”
“The 60 vote majority is there because we need to have both parties working together,” Severino said. “You don’t want to do things by a bare majority vote all the time, and it is actually a benefit to get something that has a larger consensus. I don’t know if Thomas Jefferson initiated it but I wouldn’t be surprised because those kinds of consensuses things that our founders thought were important.”
Seeking a 'consensus' candidate is not the right thing to do. It is not what the Constitution contemplates, in our system built on the consent of the governed. Majorities didn't elect George W. Bush and 55 Republican Senators to do that. For the President to choose a Justice on this basis would retroactively disenfranchise the voters in these elections. The people elected the President so that he would exercise his own judgment according to the criteria he stated in two elections. By definition, those will never be 'consensus' nominees. Justices Ginsburg and Breyer were not 'consensus' nominees, nor should any Republican nominees be — particularly when Republicans control the Senate, for heaven's sake.
But the real issue with Severino’s claim is that Senate Republicans didn’t block Obama’s three picks for the DC Circuit Court because they weren’t “consensus” candidates. Rather, GOP leaders explicitly said they would oppose any person President Obama nominated to the court — a position that they took before even knowing who the nominees would be.
Plus, Republicans’ unprecedented obstructionism — cheered on by the JCN — makes it hard to believe that they were merely hoping for “both parties to work together” to find a “consensus” as Severino maintains.
What finally brought Senate Democrats to a breaking point today – forcing them to change Senate rules to allow a simple majority to break a filibuster of most federal judicial nominees – was Senate Republicans’ blockade of President Obama’s three nominees to the Court of Appeals for the D.C. Circuit. Republicans admitted that they blocked these nominees not because of objections to the nominees themselves but because they didn’t want to allow President Obama to fill the seats at all .
This was an extreme abuse of the filibuster, especially coming from senators who had previously claimed that blocking judicial nominees for any reason was unconstitutional and un-American.
But the D.C. Circuit showdown was just the latest, most public, example of the Senate GOP’s abuse of the filibuster under President Obama. We look back at some ten of President Obama’s nominees who found themselves caught up in the Senate GOP’s shameless obstruction.
1. Goodwin Liu – Ninth Circuit
Goodwin Liu was a brilliant Berkeley law professor on the fast track to a Supreme Court short-list. So naturally Republicans tried to stop him in his tracks. Liu had plenty of support from conservative legal leaders – Bush administration attorney Richard Painter called him “exceptionally qualified, measured, and mainstream” – but that didn’t stop Republicans from trying to paint him as an extremist. Republicans filibustered Liu's nomination for more than a year before he withdrew his name from consideration in 2011, citing his family and the fact that the seat he had been nominated to was a designated “judicial emergency” and needed to be filled. But there was a happy ending for Liu, and for California: Later that year, he was confirmed to the California Supreme Court.
2. Dawn Johnsen – Office of Legal Counsel
Dawn Johnsen was President Obama’s first nominee to lead the Justice Department’s Office of Legal Counsel. Johnsen, a professor at Indiana University’s law school, had support from across the ideological spectrum, including from representatives of every presidential administration since Gerald Ford’s.
But Senate Republicans didn’t like that Johnsen had criticized the OLC’s handling of torture cases during the Bush administration and so accused her of being weak on terrorism. Johnsen was forced to withdraw her nomination after she was denied a Senate vote for more than a year.
3. John McConnell – District of Rhode Island
A public interest attorney, McConnell had led lawsuits against tobacco companies and lead paint manufacturers. So, when President Obama nominated him to Rhode Island’s district court, he quickly gained a very powerful enemy: the U.S. Chamber of Commerce. The behemoth lobbying group had never before campaigned against a trial court nominee, but made an exception for McConnell. The Senate was forced to hold a cloture vote to end a Republican filibuster of McConnell – only the third time in history that a cloture vote had been held on a district court nominee. The filibuster ultimately failed and McConnell was confirmed.
4. Mel Watt – Federal Housing Finance Agency
The Republican filibuster of North Carolina Rep. Mel Watt’s nomination to head the Federal Housing Finance Agency – which oversees Fannie Mae and Freddie Mac – went hand-in-hand with their blockade of the D.C. Circuit three, but it was special in its very own way. Watt became the first sitting member of Congress to be blocked from an administrative position since before the Civil War – at least, that anyone digging through congressional archives has been able to find.
Republicans said that Watt, who in his 20 years in Congress has served on the House Financial Services committee and been immersed in housing finance issues, was unqualified for the job. But the more likely explanation is that they wanted the agency’s Wall Street-friendly acting director to hold on to the post.
5. Caitlin Halligan – D.C. Circuit
Before there was Pattie Millett, Nina Pillard and Robert Wilkins , there was Caitlin Halligan. Republicans filibustered Halligan, President Obama’s first nominee to the D.C. Circuit, for two years, defeating two attempts to invoke cloture on her nomination. Halligan’s main opposition came from the National Rifle Association, which attacked her for a case she had argued on behalf of the state of New York when she was its solicitor general – in other words, a position she took as an attorney on behalf of a client.
The White House was forced to withdraw Halligan’s nomination, and her filibuster achieved its intended purpose: Obama became the first president since Woodrow Wilson not to have a single nominee confirmed to the D.C. Circuit in his first full term in office.
6. Robert Bacharach – Tenth Circuit
Senate Republicans under President Obama haven’t just thought up flimsy excuses to filibuster nominees for being too liberal; they’ve also filibustered plenty of nominees to whom they’ve had absolutely no objection.
One example of this is Oklahoma’s Robert Bacharach, whom President Obama nominated to the Tenth Circuit Court of Appeals with the resounding endorsements of both of Oklahoma’s very conservative senators. Making up a “rule” that presidents cannot be allowed to fill circuit court seats even with consensus nominees before an election, Senate Republicans blocked Bacharach's nomination – with the help of “present” votes from Coburn and Inhofe – forcing President Obama to renominate him. Finally, after making him wait nine months for a yes-or-no vote, the Senate confirmed Bacharach unanimously.
7. Richard Cordray – Consumer Financial Protection Bureau
Republicans’ filibuster of Richard Corday’s nomination was perhaps the perfect expression of their new method of governing in the age of Obama. As with many of the president’s judicial nominees, Senate Republicans couldn’t point out anything wrong with Cordray himself. But they really didn’t want anyone to fill the position to which he had been nominated, head of the newly-created Consumer Financial Protection Bureau.
President Obama skipped over now-Sen. Elizabeth Warren to nominate Cordray to head the consumer protection agency that was Warren’s brainchild, in what turned out to be a futile effort to ease the confirmation process. Instead, 45 Senate Republicans sent a letter to Obama informing him that although they had no problem with Cordray himself they would not allow a vote on his nomination until the president severely weakened the CFPB’s oversight power. In the meantime, without a permanent director, the CFPB was legally unable to exercise its full authority.
After denying CFPB a director for two years, Republicans finally allowed Cordray’s nomination to go through as part of a larger executive nominations deal this summer, which meant that the agency could finally start doing the full job it was meant to do.
8. Adalberto Jordan – Fourth Circuit
Adalberto Jordan of Florida is another nominee to whom the GOP had no stated objection yet chose to filibuster anyway. President Obama nominated Jordan to the Eleventh Circuit, where he would become the court’s first-ever Cuban-American judge, a big deal for the circuit that includes Florida. The Senate Judiciary Committee approved him without objection. Yet Republicans blocked a vote on his nomination for four months before finally allowing him to be confirmed in a 94-5 vote … but not before Sen. Rand Paul postponed his confirmation vote for an extra two days to make an unrelated point about foreign aid to Egypt .
Then there are the “silent filibusters” – ones where Republicans abuse the rules to stymie nominations but not in ways that necessarily lead to cloture petitions. These silent filibusters have slowed down numerous Obama nominees – leading to enormous wait times for Senate votes. Here are just two examples:
9. Louis Butler – Western District of Wisconsin
President Obama nominated Butler four separate times to the Wisconsin District Court. He was approved by the Judiciary Committee. But Republicans kept blocking him, so his nomination was repeatedly returned without a vote. Butler’s nomination isn’t counted in tallies of filibusters because a cloture petition was never filed on his nomination. In 2009 and 2010, Sen. McConnell refused to consent to a floor vote. President Obama renominated Butler in 2011, but by that time Democratic Wisconsin senator Russ Feingold had been replaced by Republican Ron Johnson, who took advantage of the currently generous “blue slip” policy (see below) to prevent the Judiciary Committee from even voting on Butler. We count his nomination here because it is an example of the diverse ways Republicans have used to block votes on a nominees.
10. Edward Chen – Northern District of California
Another day, another science lesson from the GOP: In Edward Chen’s hearing before the Judiciary Committee, Sen. Jeff Sessions accused the ninth circuit nominee of being afflicted with the “ACLU chromosome.” This condition had caused Chen to work for several years at the ACLU, where he specialized in fighting language discrimination cases, before becoming the first Asian American to sit on the federal district court based in San Francisco.
Chen’s work to fight discrimination proved to be just too much for Senate Republicans, who made him wait two full years for a confirmation vote. Finally, a few days after Republicans failed to defeat the cloture vote on Rhode Island’s John McConnell, they agreed to allow a confirmation vote for Chen without forcing a cloture vote.
Blue Slip Bonus
A number of President Obama’s judicial nominees haven’t even gotten the chance to be filibustered. That’s because there’s a way Republicans can hold up nominees before they even get a committee hearing. Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, won’t proceed with a hearing on a nominee until he receives “blue slips” from both of the nominee’s home-state senators signaling their go-ahead for the nomination process. In this way, a senator can hold up a home-state nominee before he or she even gets a public hearing.
Oklahoma’s Sen. Tom Coburn refused to return his blue slip on the nomination of Arvo Mikkanen to an Oklahoma district court, not because he had anything bad to say about the nominee, but because he was upset that President Obama supposedly hadn’t consulted him before making the nomination. Mikkanen, who would have become the third-ever Native American on the federal bench, never received a hearing.
Nevada Sen. Dean Heller blocked the nomination of Elissa Cadish to the Nevada district court under pressure from the NRA because Cadish had once on a questionnaire correctly described the state of Second Amendment law before it was changed by the Supreme Court. Cadish never got a chance to defend herself in a public hearing, and withdrew her nomination after a year of delay.
Georgia’s Jill Pryor was first nominated to the Eleventh Circuit a year and a half ago, but still hasn’t gotten a hearing because her home-state senators would prefer that she be on a different court. Neither has raised questions about her qualificiations.
Sen. David Vitter (R-LA) today claimed that changing Senate rules to allow a simple majority of the US Senate to vote on judicial nominees appointed by the President is a shameful act that is “scary and dictatorial for our country.”
As Steve Benen noted, the supposedly dictatorial rule brings things back to “the way the Senate worked for about 200 years, largely without incident.”
In fact, Vitter supported the same rules change back in 2005, saying yes-or-no votes on judicial nominees fulfill “our constitutional duty to give advice and consent when a president nominates individuals to the bench.”
After waging an unprecedented campaign of obstructionism against President Obama’s nominees, Republicans are now crying crocodile tears over a rules change that would end the filibuster on certain judicial nominees.
NBC News points out that Republicans are not blocking judicial nominees over “concerns about ideology or qualifications, but over the president’s ability to appoint ANYONE to these vacancies.” This unprecedented blockade leaves Democrats with few options, as dozens of nominees are left unable to receive a simple confirmation vote.
It’s even harder to be sympathetic to Senate Republicans when you remember that just a few years ago, many of the very same Republicans who are today filibustering President Obama’s nominees willy-nilly were vowing that they would never, ever filibuster judicial nominees. Some even declared that judicial filibusters were unconstitutional and un-American.
But that was before there was a Democrat in the White House.
We take a look back at some of the Senate’s most strident opponents of filibustering judicial nominees, turned master obstructers.
1. Mitch McConnell (KY)
“Any President’s judicial nominees should receive careful consideration. But after that debate, they deserve a simple up-or-down vote” (5/19/05).
“Let's get back to the way the Senate operated for over 200 years, up or down votes on the president's nominee, no matter who the president is, no matter who's in control of the Senate” (5/22/05).
2. John Cornyn (TX)
“[F]ilibusters of judicial nominations are uniquely offensive to our nation’s constitutional design” (6/4/03).
“[M]embers of this distinguished body have long and consistently obeyed an unwritten rule not to block the confirmation of judicial nominees by filibuster. But, this Senate tradition, this unwritten rule has now been broken and it is crucial that we find a way to ensure the rule won’t be broken in the future” (6/5/03).
3. Lamar Alexander (TN)
“If there is a Democratic President and I am in this body, and if he nominates a judge, I will never vote to deny a vote on that judge” (3/11/03).
“I would never filibuster any President's judicial nominee. Period” (6/9/05).
4. John McCain (AZ)
“I’ve always believed that [judicial nominees deserve yes-or-no votes]. There has to be extraordinary circumstances to vote against them. Elections have consequences” (6/18/13).
5. Chuck Grassley (IA)
“It would be a real constitutional crisis if we up the confirmation of judges from 51 to 60” (2/11/03).
“[W]e can’t find anywhere in the Constitution that says a supermajority is needed for confirmation” (5/8/05).
6. Saxby Chambliss (GA)
“I believe [filibustering judicial nominees] is in violation of the Constitution” (4/13/05).
7. Lindsey Graham (SC)
“I think filibustering judges will destroy the judiciary over time. I think it’s unconstitutional” (5/23/05).
8. Johnny Isakson (GA)
“I will vote to support a vote, up or down, on every nominee. Understanding that, were I in the minority party and the issues reversed, I would take exactly the same position because this document, our Constitution, does not equivocate” (5/19/05).
9. James Inhofe (OK)
“This outrageous grab for power by the Senate minority is wrong and contrary to our oath to support and defend the Constitution” (3/11/03).
10. Mike Crapo (ID)
“[T]he Constitution requires the Senate to hold up-or-down votes on all nominees” (5/25/05).
11 . Richard Shelby (AL)
“Why not allow the President to do his job of selecting judicial nominees and let us do our job in confirming or denying them? Principles of fairness call for it and the Constitution requires it” (11/12/03).
12. Orrin Hatch (UT)*
Filibustering judicial nominees is “unfair, dangerous, partisan, and unconstitutional” (1/12/05).
*Hatch claims he still opposes filibusters of judicial nominees and often votes “present” instead of “no” on cloture votes. But as Drew noted: “Because ending a filibuster requires 60 ‘yes’ votes, voting ‘present’ is identical to voting ‘no.’ Hatch’s decision to vote ‘present’ is an affirmative decision to continue the filibuster.”
Senate Democrats are looking increasingly serious about the possibility of changing the Senate rules to permit a 51-vote majority to end debate on nominees to the executive branch and lower federal courts – the so-called “nuclear option.” The move would come after Senate Republicans abused the filibuster to block votes on all three of President Obama’s nominees to fill vacancies on the U.S. Court of Appeals for the District of Columbia Circuit.
The D.C. Circuit nominees are among 17 federal judicial nominees currently waiting for Senate floor votes. Thirteen of these have been waiting for three weeks or longer; two have been waiting for over 100 days.
And the blanket filibuster of D.C. Circuit nominees is just the latest in the GOP’s onslaught of unprecedented obstruction under President Obama. Here are four charts showing just how far Republican obstruction has gone in the Obama administration.
Failed to confirm one-quarter of President Obama’s judicial nominees.
At this point in President Bush’s term, the Senate had confirmed 91 percent of his nominees to the lower federal courts. As of today, the Senate has confirmed just 76 percent of President Obama’s nominees. Those left out include the 17 nominees still waiting patiently for yes-or-no confirmation votes, as well as many nominees who have been forced to withdraw their nominations after meeting a wall of GOP obstruction. Unquestionably qualified nominees forced to withdraw their names include D.C. Circuit nominee Caitlin Halligan, Ninth Circuit nominee Goodwin Liu and Nevada District Court nominee Elissa Cadish.
The unconfirmed 26 percent also includes nominees who have met with Republican obstruction before even getting a hearing from the Senate Judiciary Committee. Because committee chairman Patrick Leahy won’t schedule a hearing on a nominee until both of that nominee’s home-state senators return “blue slips” signaling their approval for starting the process, Republicans can hold up the confirmation process before it even starts simply by refusing to return a “blue slip.” One example is Georgia senators Saxby Chambliss and Johnny Isakson’s year-and-a-half-long (and counting) blockade of Eleventh Circuit nominee Jill Pryor, whom they previously found qualified for a district court judgeship.
Stonewalled the D.C. Circuit.
When President Obama nominated three qualified people to the three vacancies on the U.S. Court of Appeals for the D.C. Circuit, Senate Republicans put up a coordinated front of righteous indignation, accusing the president of trying to “pack” the court to “rubber-stamp” his agenda. This act was somewhat hard to believe coming from a party that less than a decade ago successfully pushed to confirm George W. Bush’s nominees to the very same seats. The cries of “court-packing” were also a little bit undermined by the fact that Senate Republicans had allowed just one of President Obama’s nominees to be confirmed to the court, in contrast to four of Bush’s nominees and eight of Reagan’s.
It all made one believe that maybe the goal was to keep the influential court dominated by conservative Republican appointees.
Forced Obama's judicial nominees to wait over twice as long for confirmation votes as Bush’s nominees did.
Senate Republicans have forced even the nominees whom they ultimately confirm to wait weeks or even months just for up-or-down confirmation vote. Since the Senate requires unanimous consent from its members to hold a vote, a single senator can block a vote indefinitely until he is forced to give up or he runs up against a cloture vote. Under President Obama, Senate Minority Leader Mitch McConnell has made extraordinary use of these quiet filibusters, sometimes blocking votes on judicial nominees for months, even when (as is the case the overwhelming majority of the time) no Republicans actually oppose the nominees in question.
One example of this was Robert Bacharach of Oklahoma, nominated to the Tenth Circuit Court of Appeals, who was filibustered for nearly nine months despite the fact that both of his conservative home-state senators said they supported him. When Republicans finally allowed Bacharach’s nomination to come to a vote, he was confirmed unanimously.
President Obama’s confirmed nominees to the lower courts have been forced to wait an average of 107 days between approval by the Senate Judiciary Committee and a confirmation vote on the Senate floor. At this point in George W. Bush's presidency, the average wait for his nominees was just 43 days. This escalation has been especially pronounced among district court nominees, who have historically been quickly approved for trial court positions. President Bush’s district court nominees were confirmed in an average of 34 days. Under President Obama, their average wait has nearly tripled to 100 days.
Caused a vacancy crisis on the federal courts.
Senate Republicans often claim the Senate is doing a great job confirming judicial nominees this year. But according to a PFAW fact sheet [pdf], “Since the start of the 113th Congress in January 2013, the confirmation rate has failed to keep up with the number of vacancies,” leading to more than one in ten seats on the federal courts being or soon to become vacant.
Since the start of this Congress, the number of federal judicial seats that are or will soon be vacant has risen from 90 to 110, an increase of more than 20 percent. The number of judicial emergencies – vacancies that have caused courts to face extraordinary backlogs in cases -- has risen from 27 to 38, an increase of 40 percent.
The Brennan Center also documents the huge surge in federal district court vacancies and judicial emergencies since the start of President Obama's term.
…and it’s not just judges.
Republicans have filibustered more of President Obama’s executive branch nominees than were filibustered under all other presidents combined. From 1949 through the end of 2008, the Senate held cloture votes to end filibusters of 20 executive branch nominees. So far in the Obama administration, the Senate has held cloture votes on 27 executive branch nominees. That means the Senate GOP is on pace to filibuster over twice as many of President Obama’s executive branch nominees as the total number filibustered under all previous presidents combined.
Among President Obama’s executive branch nominees who have faced unsuccessful cloture votes is Rep. Mel Watt, nominated to head the Federal Housing Finance Agency, who became the first sitting member of Congress to be blocked from an administrative position since before the Civil War.
TO: Interested Parties
FR: Marge Baker, Executive Vice President, People For the American Way
DA: November 14, 2013
RE: Responding to False Claims on D.C. Circuit Court’s Workload
Senate Republicans have attempted to justify their mass filibuster of President Obama’s nominees to the U.S. Court of Appeals for the District of Columbia Circuit by claiming that the court’s workload does not justify filling its three existing vacancies.
The three main points that Senate Republicans and their allies use to back up this claim are all deeply flawed or downright false.
Here is the truth about the D.C. Circuit’s caseload.
Republican Claim #1 : The D.C. Circuit’s caseload has declined since the Senate confirmed President Bush’s nominees to 9th, 10th and 11th seats on the court.
The Facts: The nonpartisan experts within the federal judiciary who track and analyze federal court caseloads report that the D.C. Circuit’s workload has remained steady over the past decade.
Judge Timothy Tymkovich of the Tenth Circuit Court of Appeals, a George W. Bush nominee who heads the Judicial Conference's Standing Committee on Judicial Resources, which tracks the workload and personnel needs of federal courts, confirmed to a Senate subcommittee in September that the D.C. Circuit’s caseload “has been relatively steady the past ten years or so.”
As a result, Tymkovich added, his committee hasn’t seen ”any reason to reevaluate” the number of designated judgeships on the court.
The Administrative Office of the U.S. Courts' records underscore this observation.
Republican Claim #2 : The D.C. Circuit has fewer total appeals filed than any other circuit court in the country, and the raw number of appeals filed annually before the D.C. Circuit has declined.
The Facts: The Judicial Conference has stated clearly that comparisons involving the raw number of cases filed are meaningless , because of the uniquely complex nature of the D.C. Circuit’s caseload.
The D.C. Circuit’s caseload is fundamentally different from that of every other federal appeals court, chiefly because it handles a uniquely high volume of extremely complex, time-consuming administrative appeals.
In his testimony in September, Judge Tymkovich noted that the Judicial Conference uses a “different process” in evaluating the D.C. Circuit’s caseload than that of other circuits “because of the uniqueness of their caseload.”
The D.C. [Circuit] Court of Appeals has been excluded from the pure numerical standard. We employ a different process with that court, because of the uniqueness of their caseload. They have a heavy administrative practice. … Those cases have multiple parties, typically issues of first impression, big records, things that make them somewhat outliers [compared] to some of the cases we see in the other circuits. Some of those cases are exclusive jurisdiction in the D.C. court. So for that reason, we've excluded them from the same processes as the other circuits.
Raw filing numbers reveal little about the DC Circuit’s actual workload, because they indicate nothing about how complex those cases may be. The court could add or subtract 100 filings, but the impact on the court’s workload would be enormously different depending on how many of those are complicated administrative appeals. As Judge Tymkovich noted, although the court’s raw caseload numbers may go up and down, it’s workload has remained relatively steady over the past decade.
In fact, in the D.C. Circuit in the year ending June 30, the median time for cases from time of filing a notice of appeal until final disposition was 11.8 months, longer than every circuit but one. That is not a sign of an underworked court.
Republican Claim #3: D.C. Circuit judges report that if the Senate fills the court’s existing vacancies, “there wouldn’t be enough work to go around.”
The Facts: Republicans have taken an anonymous quote from an anonymous judge—and taken it wildly out of context.
Sen. Chuck Grassley claims that he has surveyed current D.C. Circuit judges and that an unspecified number have given him anonymous quotes supporting his blockade of President Obama’s nominees.
Putting aside the problem with basing public policy on anonymous quotes cherrypicked from an unspecified number of anonymous sources, the quote that Grassley trots out the most frequently doesn’t even say what he claims it says.
The real meaning of the quote Grassley uses is not at all what he suggests it is: The anonymous judge says the court does not need additional judgeships – that is, that Congress should not designate any new seats on the court, something that nobody is proposing to do. The quote that Grassley provided says nothing about filling the court’s existing vacant judgeships. Here is the full quote from the anonymous judge, according to Grassley:
I do not believe the current caseload of the D.C. Circuit or, for that matter, the anticipated caseload in the near future, merits additional judgeships at this time. . . . If any more judges were added now, there wouldn't be enough work to go around.
The astounding show of Republican recklessness that led to last month's government shutdown made one thing very clear. The new Republican Party -- the one ruled by the Tea Party -- isn't interested in making our government work. They want to break it.
Now, as if shutting down the government of the United States, furloughing hundreds of thousands of government employees, wasting billions of dollars and threatening to wreck America's economy wasn't enough, Republicans in Congress have set their sights on a new target: our justice system.
Yesterday, Senate Republicans took their campaign against our government to a whole new level when they blocked the nomination of Nina Pillard to the U.S. Court of Appeals for the District of Columbia Circuit, which is widely considered to be the nation's second-highest court behind the Supreme Court.
Pillard is one of President Obama's three nominees to fill vacancies on the D.C. Circuit, which is currently operating with nearly one-third of its active judgeships vacant. All three nominees have extraordinary professional qualifications. All three have support from across the ideological spectrum. Yet Senate Republicans are vowing to filibuster all three simply because they were nominated by President Obama.
One of the most basic functions of the U.S. Senate is to provide "advice and consent" to the president on his nominations to executive agencies and to the federal courts. For most of our country's history, the Senate has generally taken this constitutional order responsibly, using its power to block only nominees whom senators found unqualified or dangerously far out of the mainstream. That is, until now.
The same party that shut down the government in an attempt to nullify a duly-enacted law that it does not like is now trying to prevent a twice-elected president from filling vacancies on an important court -- a duty entrusted to him by the Constitution.
There's a reason Republican obstructionists have targeted the D.C. Circuit. The court has the last word on important federal laws and administrative rules on issues ranging from clean air regulations to workers' rights to cigarette labeling requirements to presidential recess appointments. Basically, just about any area that we regulate through our federal government is going to be affected by the D.C. Circuit. And it is currently dominated by conservative ideologues: nine of the 14 judges on the court (including "active" judges and senior judges who participate in panel decisions) were nominated by Republican presidents seeking to remake the courts in their ideological image.
Republicans want to keep it this way. President Obama has nominated five people to the court, yet Senate Republicans have allowed only one of these nominees to so much as receive a confirmation vote. By comparison, the Senate confirmed four of George W. Bush's nominees to the court and eight of Ronald Reagan's. In fact, the ninth, tenth, and eleventh seats that Republicans today demand remain vacant are ones that they ensured were filled when George W. Bush was president.
To give you an idea of just how conservative this court is as a result, just this month a George W. Bush nominee and a George H.W. Bush nominee ruled that employers who oppose birth control should be able to deny their employees access to affordable contraception through their insurance plans -- an absurd twisting of the true meaning of religious liberty. A few months ago, the court ruled that a law requiring employers to display a poster listing employees' legal rights violates the free speech rights of the employers. No, really!
Unable to win national elections, Republicans are trying to hold on to what power they still have -- and that includes control of the powerful D.C. Circuit. Just like they couldn't accept that the Affordable Care Act was the law of the land, the Tea Party won't admit that Americans chose President Obama to be the one making picks to the federal courts.
The Tea Party thinks that it has some sort of intellectual property claim on the U.S. Constitution. But sometimes I wonder if its leaders have even read it.