To: Interested Parties
From: Marge Baker, People For the American Way
Date: May 9, 2012
Subject: Debunking the GOP’s Disinformation Campaign on Judicial Obstruction
On Monday, 150 Americans from 27 states met in the White House with senior Administration officials and spent the day lobbying their senators to end the obstruction of qualified judicial nominees. For those Republican senators who may have thought the obstruction that is keeping our court system from functioning properly had gone unnoticed, it must have been an unpleasant surprise to learn their constituents are paying attention.
In response, Senate Republicans are throwing out a lot of irrelevant numbers and misleading comparisons in a desperate attempt to fog the issue, but they are plainly unable to rebut the clear fact that their constituents have noticed: that Republicans are needlessly obstructing judicial nominations.
For instance, because President Bush’s confirmed nominees at this point in his term were processed so much more quickly and fairly than have President Obama’s, the Republican Policy Committee concocts an excuse to ignore that inconvenient truth. They say we should be comparing President Obama’s first term to President Bush’s second term, because both saw two Supreme Court nominations that took up a lot of committee and Senate resources.
That lets them point out that President Obama has had more lower court confirmations in his first term than President Bush did in his second. But there is a reason Bush had fewer judges confirmed in his second term: There were fewer vacancies. When Bush entered office, there were 80 vacancies in the federal courts, a number he cut down to 37 by the end of his first term. In contrast, because of Republican obstruction, the number of vacancies began to climb sharply when President Obama became the person making the nominations, and it has remained at crisis levels his entire time in office.
In addition, although Sonia Sotomayor and Elena Kagan were confirmed in 2009 and 2010, the slow-walking of lower court nominations continued in ensuing years. In the 112th Congress, which began five months after Kagan’s confirmation, nominees have been held up on the floor more than three months on average, even if they are unopposed.
Republicans also blame President Obama for not making enough nominations. But the political reality is that the president needs the approval of home state senators if a nomination is to even get a committee hearing. And contrary to the practice of President Bush, the current White House actually consults home state senators in an effort to find consensus nominees. If GOP senators won’t work with the president to identify candidates who they can all agree on, the president is not the one to blame.
In any event, finding a nominee for every vacancy would not solve the bottleneck that Republicans have created at the end of the confirmation process. There are currently 19 nominees on the Senate calendar awaiting votes who could be confirmed today if the Republican leadership gave their consent.
But perhaps the most disingenuous talking point comes from Sen. Chuck Grassley, ranking Republican on the Judiciary Committee. In yesterday’s floor debate on the confirmation of Kristine Baker to a district court in Arkansas – whose nomination has been pending on the floor since February – he says a Bush nominee to the same district was treated far worse:
I would note that President Bush’s nominee, J. Leon Holmes, sat on the executive calendar for more than 14 months awaiting confirmation. From nomination, his confirmation took over 17 months. Again, why was President Bush’s nominee treated worse than this President’s nominee?
Sen. Grassley isn’t comparing apples and oranges – he’s comparing apples and skyscrapers. Holmes was so controversial that even the Republican-controlled Judiciary Committee did not approve of his nomination. In a rare step reflecting serious concerns about the merits of the nomination, a sharply divided committee voted 10-9 to forward it to the floor without a formal endorsement. After that, it was the Republicans who then controlled the Senate who delayed the confirmation vote for more than a year, fearing the Senate would reject Holmes. When he was finally confirmed in 2004, it was by a 51-46 vote.
So Republicans delayed a vote on Holmes because he was extremely divisive and lacked support in the Senate. In contrast, Kristine Baker – who cleared committee with a 17-1 vote and was confirmed by a bipartisan voice vote – was delayed by Republicans because of the Sotomayor and Kagan confirmations?
Republicans cannot deny that they are making President Obama’s judicial nominations wait more than 4 times longer for votes than was the case at this point in the Bush presidency, even though most of them are consensus nominees with strong bipartisan support. Their efforts to distract the American people from that stark fact resemble the Wizard of Oz trying to get Dorothy to “pay no attention to that man behind the curtain.”
Ultimately, though, this isn’t about statistics. It’s about people. It’s about the people who count on having their day in court, only to learn first-hand that justice delayed is justice denied. It’s the victims of predatory lending practices, consumer fraud, environmental destruction, and civil rights violations. It’s the business owners who can’t get relief from anti-competitive activities, can’t complete their mergers, and can’t enforce their contracts. This is about Americans across the nation who deserve a justice system that works.
Press contact: Miranda Blue, firstname.lastname@example.org, (202) 467-4999
Capping off an extremely important day of discussions with senior White House officials and Capitol Hill offices about ending the unprecedented Republican obstruction that is contributing to our severe federal judicial vacancy crisis, several state and national advocates had the opportunity to meet with President Obama about the urgency of addressing this crisis.
PFAW President Michael Keegan and I joined several representatives from among the 150 advocates from 27 states who participated in the Summit, in a meeting in the West Wing of the White House, where we heard the President reaffirm his commitment to press for the confirmation of judicial nominees who are ready for a vote in the full Senate or being considered by the Senate Judiciary Committee – and his commitment to continue vetting and making nominations through the balance of this year in an effort to fill the remainder of the vacancies.
We celebrated the Administration’s extraordinary success so far in diversifying the federal bench, while agreeing that there was even more to be done. Advocates talked about the millions of Americans who are denied meaningful access to the courts because there simply are not enough judges on the bench. And we heard the President affirm the importance of pressing obstructionists in the Senate to end the unprecedented dysfunction that is impeding individual Americans’ access to justice.
For me this was a sobering day as we focused on the urgency of filling our federal bench with quality judges who will keep faith with the Constitution -- and inspiring to see the allies we have in states around the country, on Capitol Hill, and in the White House to get the job done.
In a summit at the White House yesterday with 150 grassroots and legal leaders from 27 states, Attorney General Eric Holder and White House Counsel Kathy Ruemmler stressed the importance of maintaining fair and effective federal courts, and criticized Senate Republicans for creating gridlock that has left one in ten federal court seats vacant.
Holder stressed President Obama’s effort to nominated qualified and diverse nominees to the federal courts. 46 percent of the president’s confirmed judicial nominees have been women and 37 percent have been people of color, more than under any other president in history. “Our people are diverse, they are qualified and they will serve the American people well in their time on the bench,” he said.
While President Obama has nominated dozens of highly qualified, diverse Americans to the federal bench, his nominees have met with unprecedented obstruction from Senate Republicans.
“Republican obstruction and these delays on the floor aren’t happenstance. They’re strategic and they’re having a devastating impact,” Ruemmler told attendees.
Ruemmler said that the conservative movement “understands the important role courts play in all of the issues we care deeply about as a country.”
Today’s summit was a sign that progressives are beginning to care deeply about the courts as well.
“This matters. This really matters,” Holder said. “This is a key legacy for any president. It’s one of the ways that a president’s success can be measured.”
Today, a few representatives from People For the American Way joined 150 Americans from 27 states at a White House summit to discuss the state of vacancies in the federal courts.
We’ll write more about the summit in later posts, but first, a summary of the problem. PFAW’s graphic designer, Nicole, put together this infographic showing how unprecedented obstruction of judicial nominees has created an unprecedented vacancy crisis in the federal courts, and slowed down President Obama’s effort to bring qualified, diverse judges to the federal bench:
Today, representatives from People For the American Way joined with advocacy groups and concerned citizens from across the country to meet with Obama administration officials about ending the vacancy crisis in America’s federal courts.
Groups concerned about the judicial vacancy crisis issued a joint statement, which can be found here.
The White House meeting brings together 150 advocates from 27 states to discuss the vacancy crisis that is plaguing America’s federal courts. One in ten federal court seats is currently or will soon be vacant, yet Republican obstruction has caused unprecedented delays for nominees to fill those seats.
“It’s encouraging that the Obama administration is so clearly placing a priority on ending the vacancy crisis in the federal courts,” said Marge Baker of People For the American Way. “The president and Congress have a duty to work together to ensure that all Americans have access to fair and effective courts. Unfortunately, Senate Republicans have too often been shirking that duty as they seek to slow even the most basic business of Congress.
“Gridlock in Washington has resulted in gridlock in the federal courts and inexcusable delays for Americans seeking justice. Today, the voices of people who are hurt by this gridlock will be heard loud and clear in Washington.”
People For the American Way released an infographic today detailing the impact of Republican obstruction of judicial nominees:
(Click image for a larger pdf version of the infographic.)
Mitt Romney is eager these days to change the subject from what the public sees as his party's "war on women." He seeks to close the huge gender gap that has opened up as women flee the party of Rick Santorum, Newt Gingrich and Rush Limbaugh in search of something a little less patriarchal and misogynistic.
But Romney's problems with America's women may be just beginning. He can distance himself from the theocratic musings of other Republicans and the macho bullying of Fox News talking heads, but he cannot run away from his own selection of former Judge Robert Bork, in August of last year, to become his principal advisor on the Supreme Court and the Constitution.
Bork hopes to wipe out not only the constitutional right to privacy, especially the right to contraception and to abortion, but decades of Equal Protection decisions handed down by what he calls a feminized Supreme Court deploying "sterile feminist logic" to guarantee equal treatment and inclusion of women. Bork is no casual chauvinist but rather a sworn enemy of feminism, a political force that he considers "totalitarian" and in which, he has concluded, "the extremists are the movement."
Romney may never have to elaborate his bizarrely muted reaction to Rush Limbaugh calling Sandra Fluke a "slut" and a "prostitute" ("it's not the language I would have used"), but he will definitely have to answer whether he agrees with his hand-picked constitutional advisor that feminism is "totalitarian"; that the Supreme Court, with two women Justices, had become "feminized" at the time of U.S. v. Virginia (1996) and produced a "feminization of the military"; and that gender-based discrimination by government should no longer trigger heightened scrutiny under the Equal Protection Clause.
Romney has already said that, "The key thing the president is going to do... it's going to be appointing Supreme Court and Justices throughout the judicial system." He has also said that he wishes Robert Bork "were already on the Court."
So look what Robert Bork thinks Romney's Supreme Court Justices should do about the rights of women.
Wiping Out Contraceptive, Abortion and Privacy Rights
Romney certainly hoped to leave behind the surprising controversy in the Republican primaries over access to contraception, but Robert Bork's extremist views on the subject guarantee that it stays hot. Bork rejects the line of decisions, beginning with Griswold v. Connecticut (1965), affirming the right of Americans to privacy in their procreative and reproductive choices. He denounces the Supreme Court's protection of both married couples' and individuals' right to contraception in Griswold and Eisenstaedt v. Baird (1972), declaring that such a right to privacy in matters of procreation was created "out of thin air." He calls the Ninth Amendment -- which states that the "enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people" -- an "inkblot" without meaning. For him, the right of people to decide about birth control has nothing to do with Due Process liberty or other rights "retained by the people" -- it is the illegitimate expression of "radical individualism" on the Supreme Court.
Bork detests Roe v. Wade (1973), a decision he says has "no constitutional foundation" and is based on "no constitutional reasoning." He would overturn it and empower states to prosecute women and doctors who violate criminal abortion laws. Bork promises:
Attempts to overturn Roe will continue as long as the Court adheres to it. And, just so long as the decision remains, the Court will be perceived, correctly, as political and will continue to be the target of demonstrations, marches, television advertisements, mass mailings, and the like. Roe, as the greatest example and symbol of the judicial usurpation of democratic prerogatives in this century, should be overturned. The Court's integrity requires that.
In other words, the Court's "integrity" would require a President Romney to impose an anti-Roe v. Wade litmus test on all nominations to the Court.
Ending Heightened Scrutiny of Government Sex Discrimination under Equal Protection
Bork is the leading voice in America assailing the Supreme Court for using "heightened" Equal Protection scrutiny to examine government sex discrimination under the Fourteenth Amendment. While women and men all over America cheered the Supreme Court's 7-1 decision in United States v. Virginia (1996), the decision that forced the Virginia Military Institute to stop discriminating and to admit its first women cadets, Bork attacked it for producing the "feminization of the military," which for him is a standard and cutting insult --"feminization" is always akin to degradation and dilution of standards. He writes: "Radical feminism, an increasingly powerful force across the full range of American institutions, overrode the Constitution in United States v. Virginia." Of course, in his view, this decision was no aberration: "VMI is only one example of a feminized Court transforming the Constitution," he wrote. Naturally, a "feminized Court" creates a "feminized military."
Bork argues that, outside of standard "rational basis" review, "the equal protection clause should be restricted to race and ethnicity because to go further would plunge the courts into making law without guidance from anything the ratifiers understood themselves to be doing." This rejection of gender as a protected form of classification ignores the fact that that the Fourteenth Amendment gives "equal protection" to all "persons." But, if Bork and his acolytes have their way, decades of Supreme Court decisions striking down gender-discriminatory laws under the Equal Protection Clause will be thrown into doubt as the Court comes to examine sex discrimination under the "rational basis" test, the most relaxed kind of scrutiny. Instead of asking whether government sex discrimination "substantially" advances an "important" government interest, the Court will ask simply whether it is "conceivably related" to some "rational purpose." Remarkably, Mitt Romney's key constitutional advisor wants to turn back the clock on Equal Protection jurisprudence by watering down the standards for reviewing sex-discriminatory laws.
Judge Bork Means Business: the Case of the Sterilized Women Employees
If you don't think Bork means all this, go back and look at his bleak record as a Judge on the U.S. Court of Appeals for the D.C. Circuit. Take just one Bork opinion that became a crucial point of discussion in the hearings over his failed 1987 Supreme Court nomination. In a 1984 case called Oil, Chemical and Atomic Workers International Union v. American Cyanamid Co., Bork found that the Occupational Safety and Health Act did not protect women at work in a manufacturing plant from a company policy that forced them to be sterilized -- or else lose their jobs -- because of high levels of lead in the air. The Secretary of Labor had decided that the Act's requirement that employers must provide workers "employment and a place of employment which are free from recognized hazards" meant that American Cynamid had to "fix the workplace" through industrial clean-up rather than "fix the employees" by sterilizing or removing all women workers of child-bearing age. But Bork strongly disagreed. He wrote an opinion for his colleagues apparently endorsing the view that other clean-up measures were not necessary or possible and that the sterilization policy was, in any event, a "realistic and clearly lawful" way to prevent harm to the women's fetuses. Because the company's "fetus protection policy" took place by virtue of sterilization in a hospital -- outside of the physical workplace -- the plain terms of the Act simply did not apply, according to Bork. Thus, as Public Citizen put it, "an employer may require its female workers to be sterilized in order to reduce employer liability for harm to the potential children."
Decisions like this are part of Bork's dark Social Darwinist view of America in which big corporations are always right and the law should rarely ever be interpreted to protect the rights of employees, especially women, in the workplace.
No matter how vigorously Mitt Romney shakes his Etch-a-Sketch, Americans already have an indelible picture of what a Romney-run presidency and Bork-run judiciary would look like and what it would mean for women. With Robert Bork calling the shots on the courts, a vote for Mitt Romney is plainly a vote against women's rights, women's equality and women's freedom.
Jamin Raskin is the author of the new PFAW Report, "Borking America: What Robert Bork Will Mean for the Supreme Court and American Justice."
People For the American Way launched a major new campaign today highlighting what a Mitt Romney presidency would mean for America’s courts. Romney has signaled that he’s ready to draw the Supreme Court and lower federal courts even farther to the right. And no signal has been clearer than his choice of former Judge Robert Bork to lead his campaign advisory committee on the courts and the Constitution.
In 1987, PFAW led the effort to keep Judge Bork off the Supreme Court. Ultimately, a bipartisan majority of the U.S. Senate recognized his extremism and rejected his nomination.
Last night, PFAW’s Jamie Raskin went on The Last Word with Lawrence O’Donnell to discuss PFAW’s campaign and what a Supreme Court picked by Mitt Romney and Robert Bork would look like:
Watch our full video, Don’t Let Romney Bork America:
To find out more about Judge Bork and what a Romney presidency would mean for America’s courts, visit www.RomneyCourt.com.
Today, People For the American Way launched a major new campaign – including a website, a web ad and an exclusive report – exposing Mitt Romney’s dangerous agenda for America’s courts.
The campaign highlights Romney’s choice of Robert Bork to lead his constitutional and judicial advisory team. By allying with Bork, a jurist so extreme he was rejected by a bipartisan majority of the U.S. Senate 25 years ago, Romney has sent a clear signal that he means to drag America’s courts even farther to the right, endangering many of the civil rights, liberties and economic protections won by the American people over the past five decades.
The ad, Don’t Let Romney Bork America, and the report, Borking America: What Robert Bork Will Mean to the Supreme Court and American Justice, can be viewed at www.RomneyCourt.com.
“The debates over health care and immigration have reinforced the importance of the Supreme Court to all Americans,” said Michael Keegan, President of People For the American Way. “However, few are aware of the extreme agenda Mitt Romney has for the High Court – an agenda exemplified by his close alliance with Robert Bork.
“In 1987, People For the American Way led the fight to keep Judge Bork off the Supreme Court,” Keegan continued. “25 years later, we are as relieved as ever that we succeeded. When Bork was nominated, Americans across the political spectrum rejected the dangerous political agenda that he would have brought to the bench – his disdain for modern civil rights legislation, his acceptance of poll taxes and literacy tests, his defense of contraception bans and criminal sodomy laws, his continued privileging of corporations over individuals. Since then, he has dug his heels even deeper into a view of the law that puts corporations first and individuals far behind.
“It is frightening that a quarter century after Robert Bork’s jurisprudence was deemed too regressive for the Supreme Court, a leading presidential candidate has picked him to shape his legal policy.”
People For the American Way Senior Fellow Jamie Raskin, the author of the report, added: “The return of Robert Bork and his reactionary jurisprudence to national politics should be a three-alarm wake-up call for all Americans. In his work on the bench as a judge and off the bench as a polemicist, Bork has consistently placed corporations above the government and government above the rights of the people. The idea that Bork could be central to shaping the Supreme Court in the 21st century is shocking because he wants to turn the clock back decades in terms of the civil rights and civil liberties. His constitutional politics are even more extreme today than in 1987, when a bipartisan group of 58 senators rejected his nomination to the Supreme Court.”
The new report and ad review Bork’s record from his days as solicitor general to President Richard Nixon to his turn as co-chair of the Romney campaign’s committee on law, the Constitution and the judiciary. Highlights of Bork’s career include:
Learn more at www.RomneyCourt.com.
The Atlantic’s Andrew Cohen explains why confirming nominees to our federal courts and helping to boost the economy aren’t two separate issues:
It's not complicated. When a federal judgeship goes vacant because of Senate intransigence, where judicial nominees with bipartisan approval are held up for no good reason, it's not typically the criminal cases which get unreasonably delayed. Criminal defendants have a speedy trial right under the Sixth Amendment. There is no such right for civil litigants. This means those litigants have to wait, often for years, for a trial judge to make available a time for the disposition of a dispute. The problem only gets worse, like it is now, when district courts are understaffed and judges are forced to handle more than their expected case load.
And who are civil litigants in our nation's federal courts? They are corporations and small business owners, investors and merchants, employees and employers, people just like you and me. Well, maybe not you and me since I didn't file a lawsuit this past year and you probably didn't either. But a lot of other people sure did. In 2010, according to federal court records, no fewer than 282,896 federal lawsuits were filed in America. In 2011, 289,252 lawsuits were filed, a 2.2 percent increase from the year before. The latest statistics reveal that there are currently 270,839 pending civil cases in our federal courts.
There's more alarming news. As Mike Scarcella reported last week in the National Law Journal, the Administrative Office of the U.S. Courts announced last week that there was "an 11 percent increase in intellectual property cases and a 15 percent increase in consumer credit filings" last year. The total number of pending cases in the federal system, including criminal cases, now is 367,600 and, guess what? Even as the number of federal laws (and federal crimes) increases, Congress plans to cut the budget for the federal judiciary come next January. Fewer judges. A smaller budget. Signposts on the road to third-world justice.
So what happens to many of these cases when our benches remain empty? They languish in limbo and the litigants have to live with the financial uncertainty that pending litigation brings. If you are sued for a million dollars, for example, you might choose not to invest that million dollars in a new store, or in hiring new employees, until the lawsuit is over. And if you are suing for money, you aren't likely to spend it until you get it. What federal trial judges do for these litigants, therefore, isn't just to pick a winner and a loser in a particular. The court system provides the oil that helps run the machinery of commerce.
The Leadership Conference on Civil and Human Rights organized a call yesterday with Sen. Chris Coons of Delaware and attorneys from Ohio, South Carolina and Arizona to discuss how judicial nominations gridlock in Washington hurts Americans seeking justice around the country.
On Wednesday, Senate Majority Leader Harry Reid reached a deal with Republicans to allow votes on 14 of 22 stalled judicial nominees. The first two of those were confirmed yesterday with overwhelming bipartisan votes.
The deal, while it represents more progress than Senate Republicans were previously willing to allow, still leaves eight nominees without even a vote from the Senate until May at least. Three of these nominees are from Ohio, Arizona and South Carolina.
This procedural gridlock is often portrayed as an inside-the-beltway issue. However, it has a real impact on American seeking justice from our federal courts.
Greg Kuykendall, a Tucson attorney who joined the call, told of a client who had to wait 14 months in jail before a District Court judge with an unmanageable caseload was finally able to review his claim that he was being detained in violation of his constitutional rights. “It effectively made the prisoner spend an additional 14 months in unconstitutional confinement, as a result of the judicial emergency,” Kuykendall said.
Cleveland attorney Michael Meuti told of a Ohio business that had to wait 14 months for a federal judge to review charges that had been brought against it. In the meantime, the business had to endure the uncertainty and cost of having a lawsuit hanging over it.
“Understaffed courts struggle to provide efficient and effective justice,” Meuti said. “When judicial vacancies increase, so do the workloads of each sitting judge. In turn, both individuals and businesses must wait longer for their cases to be resolved and must endure the uncertainties and costs of litigation for a greater period of time. President Obama’s nominees have waited four times longer than his predecessor’s. It is time for the Senate to abandon its obstructionist agenda, which can serve only to make justice harder to obtain for everyday Americans and American companies.”
Armand Derfner, a Charleston, South Carolina attorney, added, “"These nominees are being obstructed for no good reason. They’re suitable, qualified, and many have bipartisan support. The Senate should stop delaying votes to fill these vacancies.”