Maine Republican Sen. Susan Collins signed on today as a cosponsor of a blatantly political bill meant to deny President Obama, unlike any of his predecessors, the ability to fill vacancies on the D.C. Circuit Court of Appeals.
The D.C. Circuit is the second most influential court in the country, behind the Supreme Court. It has the final word on scores of federal laws and regulations, from consumer protections to workers’ rights to environmental protections.
For more than 30 years, presidents of both parties have placed numerous judges on the D.C. Circuit:
Senate Republicans prevented President Obama from placing a single nominee on the court during his first term and the first four months of his second, despite the fact that one-third of its active judgeships were vacant. They were so eager to keep the court dominated by Republican-nominated judges that they twice filibustered President Obama’s first nominee to the court, the eminently qualified Caitlin Halligan. Yesterday, after a ten-month delay, the Senate finally confirmed an Obama nominee, Sri Srinivasan, to fill one of the court’s four vacancies. But Republicans are indicating that their cooperation will stop there.
Senate Republicans are not only vowing to block any Obama nominees to the remaining three seats on the D.C. Circuit, they are actually proposing a bill that would eliminate those three seats entirely in order to prevent President Obama from filling them.
The bill, sponsored by Senate Judiciary Committee ranking member Chuck Grassley and cosponsored by every other Republican member of the Judiciary Committee, just gained its first non-committee cosponsor: Sen. Collins.
The bill’s backers claim that the D.C. Circuit doesn’t have a great enough workload to justify filling the remaining three judgeships. However, Sen. Collins’ own voting record provides a perfect refutation of that argument.
Sen. Collins and her allies object to Obama’s filling the 9th, 10th and 11th seats on the D.C. Circuit. However, when George W. Bush was president, Sen. Collins had no such reservations about the need to fill the court's vacancies. In 2006, Collins voted to confirm Bush nominee Brett Kavanaugh to the 10th seat on the D.C. Circuit. In 2005, she voted to confirm Bush nominees Janice Rogers Brown to the 10th seat on the court and Thomas Griffith to the 11th.
Following the Griffith confirmation, which Collins supported, the D.C. Circuit’s caseload was 119 cases per active judge. If every one of the D.C. Circuit’s 11 seats were filled today -- including the three seats that Sen. Collins wants to eliminate – the court’s caseload would be slightly higher than it was then, at 120 cases per active judge. Sen. Collins evidently thinks that what was a reasonable caseload for the court under President Bush is somehow wastefully low under President Obama.
Meanwhile, here is Sen. Sheldon Whitehouse refuting Sen. Grassley’s absurd claim that President Obama is trying to “pack” the D.C. Circuit by filling its vacancies:
TO: Reporters and Editors
FROM: Jamie Raskin, Senior Fellow, People for the American Way Foundation
DATE: May 24, 2013
RE: Blockbuster Decisions Coming Soon from the Supreme Court . . .Will Conservative Justices Twist the Constitution to Subvert Equal Protection?
The Roberts Court will soon release major decisions shaping the future of voting rights protection, affirmative action in university admissions, and the rights of marriage for gay and lesbian Americans. In each case, the promotion of equal rights under law in our society is opposed by a conservative agenda that seeks to enshrine inequality in the name of “federalism,” “color-blindness,” or “social tradition.” What is at stake in these cases is whether America continues its journey towards strong and inclusive multi-racial democracy or accepts conservative arguments that undermine constitutional and social progress.
Congressional Protection of Voting Rights versus “Federalism Costs”:
The Voting Rights Act on the Chopping Block in Shelby County v. Holder
In Shelby County v. Holder, conservatives seek to dismantle the essential machinery of modern voting rights protection, which is the pre-clearance procedure for voting changes in covered jurisdictions. This procedure is contained in Section 5 of the Voting Rights Act of 1965, the monumental statutory achievement of Congress in the last century. Chief Justice Roberts, in a near-miss decision on the same subject in 2009, has already expressed the sentiment of his conservative colleagues that the provision now “raises serious constitutional questions.” At oral argument in Shelby County, Justice Scalia offered his view that the Voting Rights Act has become nothing more than a “racial entitlement.” Despite broad bipartisan support in Congress for the Voting rights Act, including Section 5, the conservative legal movement is mobilized for its destruction.
Section 5 obligates covered states and jurisdictions to “pre-clear” changes affecting voting with the Department of Justice or the federal district courts in Washington. This procedure affects states and counties that were the worst offenders against voting rights and has been in place for nearly a half-century. Section 2 of the Fifteenth Amendment clearly gives Congress the “power to enforce” voting rights “by appropriate legislation.” The Court has four times—in South Carolina v. Katzenbach (1966), Georgia v. U.S. (1973), City of Rome v. U.S. (1980), and Lopez v. Monterey County (1999)—rejected invitations by states to declare Section 5 as outside of Congress’ powers under the 14th and 15th Amendments. Thus, Alabama, Georgia, Louisiana, Arizona, Mississippi, South Carolina, Texas, Virginia and later Alaska (along with certain jurisdictions in California, Florida, Michigan, New Hampshire, New York, North Carolina and South Dakota) have had to prove that proposed changes in election laws do not disadvantage minority voters. While the Justice Departments and the courts routinely approve more than 99 percent of submitted plans, the VRA remains a critical stop against laws meant to disenfranchise racial minorities. Hundreds of state plans and thousands of proposed changes have been rejected under the law, preventing a backslide in the project of building a strong interracial democracy.
But the case against Section 5 today turns on neither constitutional precedent nor text nor the facts of political life on the ground, but rather on the talk-show fallacy that a nation which twice elects an African-American president simply cannot contain any states or counties where minority voters face actual barriers to participation. Backing up this non-sequitur intuition are constitutional myths: that Congress has to treat all states and counties the same and cannot distinguish among them based on their records of committing voting rights violations. and that the pre-clearance mechanism in the Voting Rights Act and its “coverage formula” impose far too high “federalism costs” on covered areas (i.e., it allegedly takes too much power from the states). All of these taking points are supposed to justify the Court’s substituting its judgment for that of Congress and to find that Section 5 is no longer a “congruent” or “proportional” remedy, under either the Fourteenth Amendment or the Fifteenth Amendment, for threats to voting rights. But the lower courts in this case reviewed more than 15,000 pages of Congressional findings and testimony and were convinced of the continuing need for preclearance to deal with the disingenuous disenfranchising and diluting schemes in the covered areas, including voter photo ID laws, tightening restrictions on registration and at the polls, and racist gerrymanders.
The arguments against Section 5 appeal to the racial fatigue of Supreme Court arch-conservatives, who are willing to give state legislatures, a majority of which are in conservative Republican hands today, the freedom to restrict voting rights. The pre-clearance procedures of Section 5 are the major obstacle to this goal because they mean that all of the traditional hijinks of Jim Crow politics must be submitted in advance to federal judges or DOJ civil rights lawyers for approval. Rather than placing the burden on African-Americans and other minority voters to find lawyers and make the case against repressive practices after they go into effect, the covered jurisdictions have to affirmatively show that their innovations are not discriminatory or “retrogressive” before the damage is done. As the Supreme Court put it approvingly in South Carolina v. Katzenbach, “After enduring nearly a century of systematic resistance to the Fifteenth Amendment,” Congress chose “to shift the advantage of time and inertia from the perpetrators of the evil to its victims.”
The word “federalism” does not appear in the Constitution, nor does the opaque and mysterious phrase “federalism costs,” which has become the key mantra for the conservatives. At least four Justices—and we’ll see about Justice Anthony Kennedy—appear poised to use these malleable concepts to override the clear enforcement powers that the Constitution explicitly assigns to Congress through Section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth Amendment. Thus, the Supreme Court is on the brink of usurping Congressional power plainly granted by the Constitution by thwarting Congressional decisions to enforce the equal rights of Americans to vote and participate in the political process.
Racial Integration, Inclusion and Diversity versus “Color-Blindness”:
Affirmative Action Walks the Plank in Fisher v. University of Texas at Austin
The ceaseless attack on affirmative action returns again this Term with Fisher v. University of Texas at Austin, a sweeping challenge to a modest use of race and ethnicity in UT’s admissions process that was adopted to correct for continuing weakness in the numbers of minority students on campus. The twist here is that most UT students are admitted through a policy guaranteeing admission to students who graduate in the top 10 percent of their public high school classes. About one-fifth of the class is admitted outside of that race-neutral policy, and affirmative action plays a role in this small part of the process.
Most people thought that the lawfulness of such a policy was settled for at least 25 years in 2003, when the Court decided Grutter v. Bollinger and Gratz v. Bollinger, cases testing the constitutionality of affirmative action programs as practiced, respectively, at the University of Michigan Law School and the University of Michigan’s undergraduate program. The majority upheld the Law School’s “holistic” use of race and ethnicity in the process to promote diversity in the educational experience because all consideration of applicants remained individualized and there were no quotas and no numerical targets used in the selection process. (The University of Texas modeled its law school’s affirmative action program after that upheld in Grutter in 2003.) Meanwhile, the majority invalidated the undergraduate plan because racial or ethnic minority status was quantified and treated as adding bonus points in a rigid numerical weighing system, a process that the Court said leaned towards being a quota system. While rejecting the college plan as a blunt instrument, Justice O’Connor found that the kind of diffuse and holistic use of minority status embodied in the law school program was permissible. She thought such affirmative action would be warranted for a period of what she predicted to be another quarter-century. Given that most public universities remained segregated through the 1950s and 1960s, this seemed like a sensible time-line.
The Grutter decision reaffirmed and updated Regents of the University of California v. Bakke, the 1978 high Court decision which struck down numerical quotas for minority admission but approved the generalized use of race in the admissions process to promote the compelling interest in having a diverse student body. Grutter was met with relief and enthusiasm throughout American academia, in the business sector, by the armed services, and across American society.
Now, once again, conservatives hope to turn the Constitution against the project of equal rights and equal opportunities. The key move is to claim that Equal Protection mandates absolute “color-blindness” and therefore forecloses any conscious efforts to build diversity and inclusion into the educational experience of students. But the history of the Equal Protection Clause demonstrates that its Framers clearly contemplated that government would seek to take account of the racial implications of official discrimination in the past to fashion consciously inclusionary policies going forward.
Equal Protection of the Rights of all Citizens in Marriage versus “Social Tradition”:
United States v. Windsor and Hollingsworth v. Perry
Two significant cases raise the important issue of whether gay and lesbian Americans enjoy an equal right to marry and to enjoy all the rights of marriage. Here, straightforward understandings of Equal Protection clash with an extra-constitutional commitment to the “social tradition” of discrimination against gay people.
One case, United States v. Windsor, deals with the constitutionality of Section 3 of “DOMA,” the 1996 federal Defense of Marriage Act, which provides that the word “marriage” in any federal law or regulation—including the Social Security Act, the Internal Revenue code, immigration law, and more than 1,000 others—shall apply only to the “legal union of one man and one woman as husband and wife.” This sweeping discrimination means that, although hundreds of thousands of gay and lesbian Americans have won and exercised the right to marry in twelve states and the District of Columbia, the rights, benefits, and duties that they should receive as married people under federal law are categorically withheld from them. Under federal law, married couples who are gay are treated as legal strangers to one another and as unworthy of the rights enjoyed by other citizens.
This discrimination has dramatic consequences. The respondent in Windsor, Edith Windsor, was forced to pay $363,000 in federal taxes on the estate she inherited after her wife (and life partner of 40 years) died, since DOMA prevents same-sex spouses from inheriting marital property on a tax-free basis, a benefit that heterosexual couples take for granted. Windsor won a clean victory in the United States Court of Appeals for the Second Circuit, which found that discrimination against gay people triggers Equal Protection “intermediate scrutiny” and that Congress could not even demonstrate a valid, much less an important, interest for defining marriage at the federal level so as to exclude from its benefits thousands of married couples in the states.
The other case taken up by the Supreme Court is Hollingsworth v. Perry, which tests the constitutionality of California’s infamous Proposition 8 ballot measure, which revoked the marriage rights that gays and lesbians had enjoyed in the state under a landmark California Supreme Court decision. Proposition 8 was voided in a broad pro-marriage decision handed down by California United States District Court Judge Vaughn Walker, a decision that was reaffirmed on narrower grounds by the United States Court of Appeals for the Ninth Circuit, which essentially found that California had no rational basis for taking away from its gay citizens the marriage rights that it had previously granted.
Both cases involve government refusing to recognize the equal rights of gay people, either in married couples or couples who want to get married. With DOMA, Congress denied the same equal rights and benefits to gay married people as it offers to straight married people, and with Proposition 8, California actually revoked the marriage rights of gay people and prohibited the legislature from ever restoring those rights. The Proposition 8 proponents even sought to use the measure to annul gays’ and lesbians’ existing marriages without their consent. The discrimination in both cases is plain to see, all of it justified on the grounds of “traditional marriage” and “social tradition.”
The right to get married as a basic civil right has frequently been addressed by the Supreme Court, but the Court has never addressed whether that right extends to gay and lesbian Americans, and the Court could successfully dodge the underlying issue here.
One good possibility is that the Court will strike down DOMA as a naked Equal Protection violation, saying that states need not necessarily extend marriage rights to gay and lesbian residents but that, if states do extend equal marriage rights, the federal government may not discriminate against people who avail themselves of those rights. Pro-marriage forces expecting this result place a high burden of hope on Justice Anthony Kennedy, who has written excellent majority opinions upholding the equal rights of gay and lesbian Americans in Romer v. Evans (1996) and Lawrence v. Texas (2003). But Kennedy may instead decide purely on federalism grounds, potentially providing a fifth vote to strike down DOMA but preventing any pro-equality legal rationale from having a majority that would bind lower courts in the future.
In the California Proposition 8 case, the Court could say that states that give all of the state-law rights of marriage to gay and lesbian citizens cannot withhold from them the title of marriage; this would affect eight states in a similar situation as California. Another possibility, more remote, is that Justice Kennedy would agree to join the moderate-liberal faction in simply declaring that gay people have equal rights to marry, which would mean invalidating discriminatory laws still on the books in the vast majority of states. Conversely, the Court might also say that there is no obligation for California to protect the right of gay and lesbian citizens to marry at all. Or, finally, it could dismiss the whole case on either standing grounds—the Attorney general of California refused to defend Proposition 8, leaving that task to anti-marriage advocates who put the initiative on the ballot—or on the grounds that cert was improvidently granted. There are still many ways to escape the basic issue of discrimination, even though all of the momentum in the states is towards marriage equality and the rationales for discrimination have been collapsing everywhere like a giant house of cards.
Equal Protection versus the Politics of Inequality
As we await the Supreme Court’s decisions in these cases, Americans should not miss the big picture of this constitutional moment. In a society that disenfranchised African-Americans and other minorities for centuries and discriminated openly against racial minorities and the gay and lesbian population, we are living through giant progressive changes in political democracy and voting rights, educational opportunity, and marriage rights for all. Yet, in politics, as in physics, every action creates an equal and opposite reaction, and a huge ideological undertow has formed on today’s Supreme Court, which has replaced the values of the long-ago Warren Court with commitments to corporate power over government and government power over people. What is at stake in these cases is whether the Supreme Court will interpret the Constitution to be the instrument of equal protection for all or will twist it to make it the guarantor of inequality and injustice.
* * * * * * *
Jamie Raskin, a Senior Fellow at People for the American Way Foundation, is a professor of constitutional law at American University’s Washington College of Law and a State Senator in Maryland.
The Senate today unanimously confirmed Sri Srinivasan to the Court of Appeals for the D.C. Circuit. Srinivasan’s confirmation is historic: he’ll become the first federal appeals court judge of South Asian descent. He will also become the first Obama nominee on the hugely influential D.C. Circuit.
Senate Republicans kept him from even getting a committee hearing until ten months after his nomination, and this week they tried to filibuster him even though they ended up voting for him unanimously. While they are framing their cooperation on Srinivasan’s nomination as a concession to President Obama on judicial nominations, they are already vowing to obstruct any Obama nominee to any of the remaining three seats on the court by removing those seats from the court entirely.
They have a strong political incentive to do so. Even after Srinivasan’s confirmation, the court is still dominated by a powerful backbench of Republican-nominated senior judges, who along with the four active Republican-nominated judges on the court, have been systematically dismantling protections for workers and consumers.
What’s more, President Obama’s one confirmed nominee to the D.C. Circuit still leaves him far behind his immediate predecessors in shaping the influential court.
President Obama noted this in his statement on Srinivasan’s confirmation:
While I applaud the Senate’s action, it’s important to remember that this confirmation is the first one to this important court in seven years. The three remaining vacancies must be filled, as well as other vacancies across the country.
WASHINGTON -- People For the American Way Executive Vice President Marge Baker issued the following statement on the Senate’s unanimous confirmation of Sri Srinivasan to the Court of Appeals for the D.C. Circuit:
“We congratulate Mr. Srinivasan on his confirmation to the Court of Appeals for the D.C. Circuit.
“The fact that Senator Reid was forced to file cloture in order to secure an agreement with Republicans to vote on a nominee whom they enthusiastically support is a sign of how far Senate Republicans have taken their mindless obstruction.
“Unfortunately, the Senate GOP is already looking ahead to further obstruction of this critically important court, one-quarter of whose active judgeships still remain vacant. Having prevented President Obama from filling a single seat on the D.C. Circuit until today, they are now threatening to strip the three remaining vacant seats from this important court rather than allow the president to fill them. This promised obstruction is purely politically motivated and cannot be allowed to succeed.”
One of President Obama’s most important long-term achievements has been his concerted effort to bring qualified judicial nominees from a wide variety of backgrounds to the federal bench. 42 percent of President Obama’s confirmed judicial nominees have been women, compared with just 22 percent of those nominated by the second President Bush and 29 percent of those nominated President Clinton. Likewise, 46 percent of his confirmed nominees have been people of color, a dramatic change from the previous administration, in which 82 percent of federal judicial nominees were white. And President Obama has nominated more openly gay people to federal judgeships than all of his predecessors combined. (All of these numbers are available in this pdf from our friends at Alliance For Justice).
The four new judicial nominations that the White House announced last night are perfect examples of this effort to make the courts better reflect the people they serve. One, Judge Carolyn B. McHugh, who has been nominated to the Tenth Circuit Court of Appeals, would be the first woman to sit on a federal appeals court in Utah. Pamela L. Reeves, nominated to the Eastern District of Tennessee, and Elizabeth A. Wolford, nominated to the Western District of New York, would be the first women to serve in their respective districts. And Debra M. Brown, nominated to the Northern District of Mississippi, would be the first African-American federal judge in her district and the first African-American woman to serve as an Article III judge in Mississippi.
Another important type of diversity among federal judges – one where there has been some progress but where there is still room for improvement – is diversity of professional background. Judges who have worked as public interest or legal aid attorneys bring a perspective to the bench that is different from that brought by prosecutors and litigators representing corporate clients. One example of this professional diversity is Iowa’s Jane Kelly, who was recently confirmed to the Eight Circuit Court of Appeals with unanimous bipartisan support from the Senate. An Associated Press profile yesterday explained the important perspective that Kelly will bring to the federal bench from her experience as a federal public defender:
The 48-year-old attorney has spent her career as a public defender representing low-income criminal defendants, a rarity in the ranks of appeals court judges who are often former prosecutors and trial judges. She'll become just the second woman in the 122-year history of the 8th U.S. Circuit Court of Appeals, which handles cases in seven states from Arkansas to the Dakotas.
Associates say she is a smart legal thinker who has zealously defended the rights of even the most publicly despised clients, including a notorious mailbox bombing suspect and the biggest white-collar criminal in Iowa history. Even prosecutors who disagreed with her in court praise Kelly, who will take the oath of office privately.
"Her story is compelling all the way around," said Debra Fitzpatrick of the University of Minnesota-based Infinity Project, which advocates for more women on the 8th Circuit. "Her credentials and her background and her career sort of set her up to be the right candidate at the right time."
A long-distance runner, Kelly's life almost ended when she went for a morning jog on the Cedar River Trail in June 2004. She was tackled and beaten by a male stranger, then dragged to a creek and left for dead. Passersby found Kelly in a pool of blood, in and out of consciousness and struggling to call for help. Speculation swirled that the attack was linked to Kelly's legal work, but no one ever was arrested.
Kelly quickly returned to representing criminal defendants after spending months in recovery. Her colleagues gave her the John Adams Award, which recognizes an Iowa lawyer's commitment to the constitutional right to criminal defense. And hundreds gathered one year later for a "Take Back the Trail" event, where Kelly jogged there again for the first time.
Kelly grew up in Newcastle, Ind., and graduated from Duke University in 1987. She earned a Fulbright scholarship to study in New Zealand before enrolling at Harvard, where she and Obama were acquaintances but not friends. She clerked for U.S. District Judge Donald Porter in South Dakota and then for Hansen.
She taught one year at University of Illinois law school before returning to Iowa as one of the first hires for the new public defender's office. She's been a fixture ever since, often representing "not the most popular person in the room," as she put it in her confirmation hearing, including drug dealers, pornographers and con artists.
Other pending nominees with public defender experience include Michael McShane (Oregon), Luis Felipe Restrepo (Pennsylvania), Jeffrey Schmehl (Pennsylvania), Rosemary Márquez (Arizona), and William Thomas (Florida).
The Senate Judiciary Committee yesterday approved the nomination of Sri Srinivasan to sit on the powerful Court of Appeals for the D.C. Circuit. There are currently four vacancies on the D.C. Circuit – and Senate Republicans have prevented President Obama from filling a single one.
The Senate GOP has been unusually cooperative with Srinivasan’s nomination, but have signaled that they will not be so friendly to future nominees to the court. Judiciary Committee ranking member Chuck Grassley is actually trying to permanently lower the number of judgeships on the court to prevent President Obama from reversing its far-right, anti-consumer, anti-worker tilt.
The Senate yesterday also confirmed William Orrick to serve on the District Court for the Northern District of California, a seat that had been officially designated a “judicial emergency” because of its overworked courts. The confirmation vote came a full eight months after Orrick was first approved with bipartisan support in the Senate Judiciary Committee.
In a Senate floor speech Wednesday, Sen. Elizabeth Warren of Massachusetts discussed the Senate GOP’s extraordinary obstruction of federal judicial nominees, noting the high level of officially-designated “judicial emergencies,” which has risen by 30 percent since the beginning of the year.
The Founders of our Republic gave to the President the task of nominating individuals to serve and gave us the responsibility to advise on and consent to these appointments. For more than 200 years this process has worked.
Presidents over the years have nominated thousands of qualified men and women who were willing to serve in key executive branch positions.
The Senate has considered nominations in a timely fashion and taken up-or-down votes. Of course, there have been bumps along the way, but we have never seen anything like this. Time and again, Members of this body have resorted to procedural technicalities and flatout obstructionism to block qualified nominees.
At the moment, there are 85 judicial vacancies in the U.S. courts, some of which are classified as ``judicial emergencies.'' That is more than double the number of judicial vacancies at the comparable point during President George W. Bush's second term. Yet right now there are 10 nominees awaiting a vote in the Senate, and they have not gotten one.
Senate Republicans like to blame the judicial vacancy crisis on President Obama, whom they say has not been quick enough to nominate judges. Sen. John Cornyn of Texas ran into the fallacy of this talking point last week, when he was called out for blaming the president for Texas vacancies that Cornyn himself was responsible for.
The president continued his steady pace of federal judicial nominations last night, nominating four women to federal judgeships in Utah, Tennessee, New York and Mississippi.
UPDATE: The White House points out in a blog post today that President Obama has now nominated more district court judges than had President Bush at this point in his presidency.
WASHINGTON – Marge Baker, Executive Vice President of People For the American Way, issued the following statement on the Senate Judiciary Committee’s unanimous approval today of Sri Srinivasan to sit on the Court of Appeals for the D.C. Circuit:
“The Senate Judiciary Committee’s bipartisan approval of Sri Srinivasan is an important step toward ending the extraordinary vacancy crisis on the nation’s second most influential court.
“The seat on the D.C. Circuit that Srinivasan would fill has been open for nearly five years and is one of an astonishing four vacancies on the 11-member court. Senate Republicans have prevented President Obama from filling even one of those vacancies in an effort to preserve the court’s anti-worker and anti-consumer tilt. Republicans twice filibustered the nomination of the eminently qualified Caitlin Halligan and even delayed a committee hearing on Srinivasan for nearly ten months.
“Senate Republicans cannot hide behind their friendly treatment of Srinivasan as they obstruct future nominees to the D.C. Circuit. Republicans are pressing the claim that there’s no need to fill any more vacancies on this critically important court. This argument is false, hypocritical, and clearly politically motivated. We fully expect Srinivasan to be promptly confirmed by the full Senate and will continue to push for the nomination and swift confirmation of strong jurists to the remaining seats on the D.C. Circuit.”
Americans of all political stripes should be outraged at the recent revelation that the Tea Party was unfairly targeted by the IRS before last year's election. The IRS should never base its decisions on political preferences or ideological code words, regardless of what bureaucratic challenges it may face. But the lesson that the right is drawing from the IRS's misdeeds -- the lesson that threatens to dominate the public conversation about the news -- is wrong.
We're seeing a knee-jerk reaction, particularly from the Tea Party and their allies in Congress, that is threatening to turn the IRS's mistakes into an indictment of "big government" writ large. Some are already trying to tie the scandal to the Right's favorite target, Obamacare, and to the Benghazi conspiracy theory.
The danger of this frame is that it will discourage the IRS from fully investigating all nonprofit groups spending money to influence elections. And it will distract from the core problem behind the IRS's mess: the post-Citizens United explosion of undisclosed electoral spending.
Before the Supreme Court's decision in Citizens United, only a limited number of nonprofit 501c(4) groups could spend money to influence elections -- those who did not take contributions from corporations or unions. But Citizens United lifted restrictions on corporate spending in elections, setting the stage for individuals and companies to funnel unlimited money through all corporations, including c(4)s and super PACs in an effort to help elect the candidates of their choice. Spending by c(4)s has exploded since Citizens United, since the decision allowed any c(4) nonprofit corporation that didn't spend the majority of its money on electoral work to run ads and campaign for and against candidates. And c(4)s, as long as they follow this rule, don't have to disclose their donors under the laws currently in place.
The IRS, then, was forced to play a new and critical role in policing this onslaught of electoral spending. IRS officials clearly made poor choices in how to confront this sudden sea change and those mistakes should be investigated and properly addressed. But strong oversight of this new wave of spending remains critically important and clearlywithin the IRS's purview.
If we let understandable concerns about bad decisions by the IRS lead to weakening of campaign finance oversight, our democracy will be the worse off for it. Instead, we should insist that the government strengthen its oversight of electoral spending -- equally across the political spectrum. We should pass strong disclosure laws that cover all political spenders, including c(4)s. And we should redouble our efforts to overturn Citizens United by constitutional amendment and reel back the flood of corporate money that led the IRS to be in this business in the first place.
Garrett Epps writes today in The Atlantic about how the D.C. Circuit Court of Appeals, still dominated by far-right George W. Bush nominees, has been instrumental in “the long, doleful transformation of the First Amendment from an individual right of conscience into a shield against business regulation.”
We've read of the violence done to the National Labor Relations Board by the D.C. Circuit's December decision in Noel Canning v. NLRB. Having read that opinion repeatedly, I believe it does violence to the Constitution as well. The D.C. Circuit last year voided a Food and Drug Administration regulation requiring graphic warning labels on cigarette labels as a violation of tobacco companies' "free speech" rights -- to me, another grave misstep. And I feel the same way about the Circuit's decision this week in National Association of Manufacturers v. NLRB. In this case, three Republican nominees held that the First Amendment's right against "compelled speech" protects employers against an NLRB regulation requiring them to post a government poster notifying workers of their rights. The decision is another step on the long, doleful transformation of the First Amendment from an individual right of conscience into a shield against business regulation.
We posted an infographic yesterday that shows just how ideologically skewed the D.C. Circuit is. George W. Bush made a concerted effort to pack the court with judges who shared his right-wing ideology (including John Roberts, who went on to be one of the top two most pro-corporate Supreme Court Justices in the past 65 years). In contrast, President Obama is the first president since Woodrow Wilson to not place a single judge on the court during his full first term.
The Huffington Post clips this exchange from yesterday’s meeting of the Senate Judiciary Committee meeting yesterday, which pretty much encapsulates the gridlock that Republicans have inflicted on the Senate during the Obama administration:
HuffPost’s Jennifer Bendery summarizes the exchange between Texas Republican John Cornyn and Democrats on the Judiciary Committee:
During a Senate Judiciary Committee hearing, Cornyn was arguing for more immigration judge slots in Texas when he got called out by Sen. Sheldon Whitehouse (D-R.I.) for gumming up the district court nomination process. Immigration judges are different from district court judges, but Whitehouse questioned why the Senate should add more immigration judgeships in Texas if Cornyn isn't trying to fill empty district court slots there.
"I don't see why you need additional judges when there have been multiple vacancies that have been left without nominees for years," Whitehouse said. "I have an issue with that."
Cornyn said his answer to that was "simple:" It's Obama's fault.
"The president's got to nominate somebody before the Senate can act on it," Cornyn said.
But the process for approving a new district court judge, per longstanding tradition, begins with a senator making recommendations from his or her state to the president. The president then works with that senator to get at least some of the nominees confirmed -- the idea being that those senators, regardless of party, are motivated to advocate for nominees from their states. The White House may look at other nominees on its own, but typically won't move forward without input from home state senators.
That's when Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) stepped in to remind Cornyn what he already knows: that if he wants to see movement on district court nominees, he needs to make recommendations to the president.
"Based on 38 years experience here, every judgeship I've seen come through this committee during that time has followed recommendations by the senators from the state," Leahy said. "You have to have recommendations from the senators, especially since I've been chairman, because ... as the senator from Texas knows, if senators have cooperated with the White House and the White House sends somebody they disagree with ... I have not brought the person forward, even when it's been importune to do so by the White House."
Cruz tried to absolve himself of the matter altogether, saying he just got to the Senate in January.
In short, Cornyn was blaming President Obama for gridlock that Cornyn himself has created. In fact, Texas has eight current federal judicial vacancies, one dating back as far as 2008. All are on courts so overworked that they have been labeled “judicial emergencies.” Thanks to Cornyn and Cruz, not one of those vacancies has a nominee.
And in July, one more vacancy will open up in a district court seat based in Fort Worth. When it comes open, Fort Worth will be reduced to just one active federal judge for the first time in over two decades.
WASHINGTON – People For the American Way applauded the Senate’s unanimous confirmation today of Shelly Deckert Dick to be a district judge for the Middle District of Louisiana and Nelson Stephen Román to be a district judge for the Southern District of New York.
The Senate GOP needlessly delayed both nominees after they were named last year, forcing President Obama to renominate them at the beginning of this year.
“The Senate is making encouraging progress as it continues to work through the backlog of judicial nominations,” said Marge Baker, Executive Vice President of People For the American Way. “However, they have plenty of ground to make up. That these two highly qualified, unopposed nominees have been forced to wait as long as they have for a simple yes-or-no vote is outrageous. Senate Republicans have taken obstruction to a new level, making even President Obama’s unopposed district court nominees wait an average of nearly three times as long as President Bush’s.”
Dick, who was first nominated on April 25, 2012, waited over one year for a vote from the full Senate because Louisiana Sen. David Vitter blocked her, citing the fact that it was an election year. This obstruction was a sharp departure from when President Bush was running for reelection. In 2004, everyone he nominated on or after April 25 (the date that Dick was nominated) and before Labor Day received both a committee hearing and a committee vote before Election Day. In 2008, when Democrats controlled the Senate, they scheduled hearings, committee votes, and floor votes for eleven Bush district court nominees who had been nominated closer to the election than Shelly Dick was. Most of these were nominated after the July 4 holiday, and they were all confirmed by voice vote before Election Day.
A Congressional Research Service report this week found that President Obama’s judicial nominees have faced dramatically longer wait times on the Senate floor than did nominees in previous administrations.
“The Senate must pick up the pace of confirmations to end the vacancy crisis on the federal courts. They should start by promptly holding yes-or-no votes on the eight judicial nominees currently awaiting confirmation," Baker added.
Today, the White House put forth nominees for two additional federal district court vacancies, Madeline Hughes Haikala for the Northern District of Alabama and Gregory Howard Woods for the Southern District of New York. They should be moved through the Committee as expeditiously as possible.
It seems like with every election, congressional hearing or large gathering of its activists, the Right reaches new lows. Here are some updates on what we’re up against right now.
Rewarding Hypocrisy -- Sanford and Cruz
This week, former South Carolina Governor Mark Sanford staged a political comeback and won a special election to reclaim the U.S. House seat he once occupied. Sanford had left office mired in scandal about his extramarital affair and ran a campaign centered on his own humility and learned compassion -- although, apparently his experience did nothing to dissuade him from his moralizing anti-choice and anti-gay positions. I pointed out in a piece on the Huffington Post yesterday that Sanford trumpeted his new personal understanding of "human grace as a reflection of God's grace," but his ideas of grace, choice and personal freedom as they apply to his own story don’t seem to be pushing him in the direction of supporting those things for same-sex couples, women, religious minorities or really anyone who is not just like him.
Sanford’s just the tip of the iceberg.
This past weekend NRA convention speakers from Glenn Beck and Rick Santorum to Sarah Palin and NRA president Wayne LaPierre attacked “the Left,” the Obama administration, the media and, basically, their straw man version of The (uber-liberal) Establishment for using fear tactics to scare Americans into supporting common sense gun reforms like background checks… while in the same breath stoking paranoia about every manner of “big government” tyranny, like the forced disarmament of America’s law abiding gun owners.
Another NRA convention speaker, Sen. Ted Cruz (R-TX) is being discussed in right-wing circles (and by Cruz himself) as potential presidential candidate in 2016. Cruz is a Tea Party super star who is making waves by challenging the traditional role of freshmen U.S. senators and recently gained notoriety for leading the filibuster of the background check requirement for gun purchases (the one 90% of Americans support) and then insulting his fellow Republican senators at a Tea Party event. But Sen. Cruz was born in Canada. Where are all the Tea Party “Birthers” who claimed that President Obama was born in Kenya and therefore he didn’t qualify as a “natural born citizen,” making him ineligible to run for president, even if his mother was an American citizen??
Whether it’s based on race, politics or ideology, the hypocrisy here is palpable … as it was when Cruz bragged to the NRA about vowing to filibuster any gun safety reform, no matter how common-sense or popular, but in the same speech, tore into Senate Majority Leader Harry Reid for requiring a 60 vote threshold to advance one of his preferred “pro-gun” bills, which incidentally had less support in the Senate than background checks.
It seems that it’s not so much a good redemption story the Right loves as it is blatant hypocrisy that gets rewarded with support and popularity.
It must be political witch hunt season because Republicans in Congress – fueled by their allies in the right-wing media – are embarking on some serious fishing expeditions in attempts to smear the president, his nominee for Labor Secretary Tom Perez and former Secretary of State Hillary Clinton.
Rep. Darrell Issa (R-CA), chair of the House Oversight and Government Reform Committee channels Sen. Joe McCarthy perhaps more than any other sitting member of Congress in his overzealous twisting of facts and events to “support” his hyperbolic allegations like President Obama’s is “the most corrupt government in history” and Hillary Clinton and her inner circle staged a vast “cover up” surrounding the embassy attack in Benghazi. Issa, who himself is no stranger to ethical questions (again with the hypocrisy -- they can’t help themselves), along with his allies, who include most congressional Republicans, the Religious Right and virtually the entire conservative movement, are clearly being motivated by their expectations that former Sec. of State Clinton will be a formidable candidate for president in 2016, so they are trying to tar her in advance.
Issa and his House cohorts have been involved in the attacks on Tom Perez as well, although the real obstruction is taking place in Senate, where Perez’s confirmation vote has been delayed again by Republicans on the Health, Education, Labor & Pensions (HELP) Committee. While obstructing an eminently well qualified Latino nominee seems like a funny way to demonstrate the GOP’s “rebranding” and appeal to Latino voters, the attacks on Tom Perez have truly been as vicious as they are baseless. Rep. Steve King (R-IA) alluded to Perez being “a dishonorable man,” and Rep. Jim Jordan (R-OH) contorted claims about an incident involving the city of St. Paul, MN to assert that Perez wanted to “hurt poor people” simply because he was in a position of power from which he could do so.
This week, PFAW delivered 50,000 petition signatures to the Senate HELP Committee urging an end to the obstruction and swift action to confirm Tom Perez, and we’ll continue to keep the pressure on.
Religious Right’s Persecution Fantasy
Claim after claim after claim of “persecution,” used as examples of a “war on Christians” by Religious Right activists, talk show hosts and politicians, gets thoroughly debunked. But even as these examples are firmly established as myths, right-wing leaders, and even lazy mainstream journalists, continue to cite them in their speeches and reporting. PFAW’s Right Wing Watch released an In Focus report in the first weeks of the Obama administration in 2009 about the Right’s use of a “big lie” strategy about a war on Christians to stoke the base’s false fears of religious persecution. We are seeing every day in our Right Wing tracking that the playbook we identified remains in constant use.
A new study by the Constitutional Accountability Center details the remarkable success corporate special interests like the Chamber of Commerce have had before the current Supreme Court. Certainly as, if not even more, notable, another study published in The Minnesota Law Review ranked all 36 Supreme Court justices of the last 65 years based on their pro-corporate bent. While all five of the current Court’s conservative justices made the top 10, President George W. Bush’s nominees and the two most recent conservative additions to the Court, Chief Justice Roberts and Justice Alito, were at the very top of the list.
Meanwhile, a separate study from the nonpartisan Congressional Research Service confirms what we’ve been pointing out for years -- that President Obama’s judicial nominees are being treated exceptionally poorly by Senate Republicans. Emblematic of the obstruction of President Obama’s nominees has been the situation with respect to the DC Circuit Court of Appeals, often called the nation’s second most powerful court. Republicans are fighting tooth and nail to preserve the DC Circuit’s rightward tilt even at the cost of maintaining vacancies that severely hinder the Court’s ability to do its job.
PFAW will continue to call attention to and fight the GOP’s unprecedented judicial obstruction in the DC Circuit and the entire federal judiciary. We expect several confirmation battles on the horizon, with new nominations expected to be announced by the White House in coming weeks, and we’ll be employing various strategies to make sure senators are feeling the heat in their own states over the GOP’s unconscionable obstruction.
The D.C. Circuit Court of Appeals, the most important court that most Americans have never heard of, is making waves this week with a ruling that the National Labor Relations Board’s requirement that corporations inform their employees of their right to unionize violates the free speech rights of the corporations.
This decision by a panel of three Republican-nominated D.C. Circuit judges is outrageous, but unfortunately it’s not out of character. Last year, Republican nominees on the court ruled that a regulation requiring tobacco companies to print factually accurate warnings on cigarette packages actually violated the tobacco companies’ free speech rights. In January, the court invalidated three presidential appointments to the NLRB, undermining the Board’s ability to protect the rights of workers. And that’s just the beginning.
Why is the D.C. Circuit still wreaking havoc on the government’s ability to protect the rights of workers and consumers? Because Republicans in the Senate have yet to allow a single one of President Obama’s nominees to the court reach a confirmation vote, making Obama the first president since Woodrow Wilson to serve a full first term without placing a judge on the D.C. Circuit.
That means that the partisan makeup of the D.C. Circuit is pretty much unchanged since the Bush years. Currently dominated by active judges and semi-retired senior judges appointed by Republicans, the D.C. Circuit has four vacancies. As the graphic above shows, if President Obama can fill those four vacancies, he can restore some balance to a court that has veered far, far, far to the right.
We write frequently about the extraordinarily pro-corporate leanings of the current Supreme Court, where the Justices bend the law and twist logic in order to rule in favor of large corporate interests and against the rights of individuals harmed by those interests. In the past week, two new studies have provided powerful numbers to back up the trend.
In a report released on Thursday, the Constitutional Accountability Center found that the corporate lobbying group U.S. Chamber of Commerce has won a stunning two-thirds of the cases that it has been involved with before the Roberts Court. And this weekend, The New York Times reported on a new study from the Minnesota Law Review that found that the current Supreme Court’s five conservative justices have sided with corporate interests at a greater rate than most justices since World War II. In fact, Chief Justice John Roberts and Justice Samuel Alito, both George W. Bush nominees, are the two most pro-corporate Supreme Court justices to sit in the past 65 years:
The Times writes:
But the business docket reflects something truly distinctive about the court led by Chief Justice John G. Roberts Jr. While the current court’s decisions, over all, are only slightly more conservative than those from the courts led by Chief Justices Warren E. Burger and William H. Rehnquist, according to political scientists who study the court, its business rulings are another matter. They have been, a new study finds, far friendlier to business than those of any court since at least World War II.
In the eight years since Chief Justice Roberts joined the court, it has allowed corporations to spend freely in elections in the Citizens United case, has shielded them from class actions and human rights suits, and has made arbitration the favored way to resolve many disputes. Business groups say the Roberts court’s decisions have helped combat frivolous lawsuits, while plaintiffs’ lawyers say the rulings have destroyed legitimate claims for harm from faulty products, discriminatory practices and fraud.
Published last month in The Minnesota Law Review, the study ranked the 36 justices who served on the court over those 65 years by the proportion of their pro-business votes; all five of the current court’s more conservative members were in the top 10. But the study’s most striking finding was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush.