Mike Huckabee closed out the March for Marriage today with a speech dedicated primarily to excoriating the nation's judicial system for striking down various bans on gay marriage and demanding that legislators, political leaders, and citizens alike all stop abiding by such rulings, warning that failure to do so will result in God unleashing his judgment upon this nation.
"There is no doubt in my mind," Huckabee said, "that this country would not exist had it not been for the providential hand of God. And I'm also convinced that if we reject his hand of blessing, we will feel his hand of judgment":
In his speech to the March for Marriage today, National Organization for Marriage chairman John Eastman compared the Supreme Court’s decision striking down a key part of the discriminatory Defense of Marriage Act to the infamous Dred Scott decision.
Eastman cited Justice Scalia’s “call to arms” in his dissent to the DOMA decision, paraphrasing it as, “the court should never take away controversial issues away from the voters in this country.”
“The last time the court tried to do that a century and a half ago on the slavery question, Abraham Lincoln refused to comply,” he said.
Pat Robertson said today that he was “disgusted” by the Supreme Court’s decision not to hear an appeal from the Elmbrook School District, which had asked the high court to reverse a Seventh Circuit Court ruling that found the district in violation of the First Amendment for holding a graduation ceremony in the sanctuary of an evangelical church.
The federal appeals court wrote that “the environment was pervasively Christian, obviously aimed at nurturing Christian beliefs and gaining new adherents among those who set foot inside the church.”
“The American people wouldn’t have voted in homosexuality, but the courts did; the American people wouldn’t have voted in same-sex marriage, but the courts did; the American people wouldn’t have given up on the Ten Commandments and prayer in schools, but the courts insisted on it,” the 700 Club host said today. “A few unelected judges, just a few, have distorted the history of our nation to give us something that we never intended to have, and something has got to be done about it.”
Robertson also accused the courts of trying to force the church in question to “smash out the stained glass windows that show Jesus so it won’t be offensive to the ACLU.”
While good-government groups have been calling for a constitutional amendment to reverse the Supreme Court’s dismantling of campaign finance laws since the day the Court handed down Citizens United in 2010, the issue has been largely off the radar of conservative activists – and has actually enjoyed broad bipartisan support in an array of polls and in state and municipal ballot measures.
It was largely off their radar, that is, until this week. This morning, the Senate Judiciary Committee held a hearing on a proposal by Sen. Tom Udall, D-N.M., to send a constitutional amendment to the states restoring to Congress and state governments the ability to regulate the raising and spending of money in elections. In response, Republican politicians and conservative activists have kicked into gear and are starting to try out new talking points to get their movement to oppose efforts to lessen the influence of big money in politics.
Sen. Ted Cruz, R-Texas, launched the misleading campaign two weeks ago when he warned a group of pastors that the Udall proposal would “repeal the First Amendment” and allow Congress to “muzzle” the free speech of clergy. In advance of the hearing today, conservative groups including the Family Research Council, Eagle Forum, Tea Party Patriots and the Home School Legal Defense Association started to mobilize against the amendment. Yesterday, the Heritage Foundation held a panel discussion to test out arguments against the amendment, featuring Bobby Burchfield, the attorney who argued the McCutcheon case before the Supreme Court, controversial former FEC chairman Don McGahn, and infamous voter-fraud conspiracy theorist Hans van Spakovsky .
Here, we’ve collected some of the most deceptive arguments that have been launched so far against the Udall amendment.
1. Democrats want to repeal the First Amendment!
When we first heard Ted Cruz tell a stunned group of pastors that Democrats in the Senate were planning to “repeal the First Amendment,” we knew that we would be hearing that line again and again.
And we were right. Tea Party Patriots adopted the line in mobilizing its activists, as did the Eagle Forum. The Family Research Council claimed the Udall amendment would “strip political speech out of the First Amendment,” and von Spakovsky told the Heritage panel that the amendment would “roll back” the Bill of Rights.
Burchfield and McGahn both argued that the introduction of the constitutional amendment means, in the words of McGahn, that campaign finance law advocates are “admitting” that campaign finance regulations are “unconstitutional.”
On the surface, this is the opposition’s strongest argument, because it sounds so scary. But it’s just not true. Whether you support the Udall amendment or not, it’s dishonest to suggest that it would amount to a “repeal of the First Amendment.” Instead, proponents argue that it strengthens the First Amendment by undoing the Supreme Court’s jurisprudence declaring that spending on elections, including from corporate treasuries, cannot be limited. Proponents of the Udall amendment hold that this jurisprudence, including recent decisions in the Citizens United and McCutcheon cases, represented a radical reinterpretation of the First Amendment; undoing them would simply re-establish the ability of Congress and the states to set reasonable regulations on the raising and spending of money to influence elections.
2. Amendment supporters want to ‘silence critics’ and ‘cling to power’!
The Heritage panelists repeatedly claimed that the Udall amendment is an attempt to protect incumbency by preventing challengers from raising enough money to win elections. McGahn insisted that it was an effort by Democratic incumbents “desperately clinging to power.”
“They want to change the rules of the game and prevent people from criticizing them, not unlike England did before our revolution, and which led to our revolution,” he added.
The American Family Association’s Sandy Rios also invoked the American Revolution in an interview with von Spakovsky yesterday, saying, “The First Amendment, the rights to free speech – particularly the right to political speech – were the right to criticize the king, criticize the authorities over you.”
In a later interview with Rios, Tea Party Patriots spokesman Scott Hogenson even managed to connect the Udall amendment with immigration reform, claiming that both are part of a “larger, concerted effort to maintain the Democratic Party’s control of American politics and eventually move to one-party rule.”
In reality, it’s unlimited campaign spending that tends to be a boon for incumbents, who on average are able to raise far more than challengers. For instance, in Texas, a state with few campaign finance limits, incumbents who win on average raise more than twelve times the average amount raised by challengers. By contrast, in Colorado, which has relatively low individual contribution limits, incumbents on average raise less than three times what challengers are able to raise [pdf].
3. Liberals just want to protect the lame-stream media!
In his speech to the pastors' group, Ted Cruz seized on the Udall proposal’s stipulation that “Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press” to claim that the amendment carved out an exemption to protect the New York Times.
Von Spakovsky also played up conservative conspiracy theories about the “liberal media,” telling Rios, “No surprise, there’s a glaring exception in this proposed amendment for the press. And that means that MSNBC or the New York Times Company, which are big corporations, they could spend as much newsprint or airtime as they wanted going after and criticizing candidates or talking about political issues.”
These arguments fail to recognize one key distinction, which is that there is a difference between the New York Times publishing an editorial (which would be protected under the proposed amendment, as it is now) and the corporate managers of the New York Times taking $50 million out of their corporate treasury to buy ads to influence an election (which would not be protected).
4. They’ll go after pastors!
Opponents of the constitutional amendment have also been trying to tie the proposal to the right-wing paranoia about the impending persecution of America’s Christian majority .
It’s no coincidence that Cruz rolled out his criticism of the Udall proposal at a pastors’ event organized by the Family Research Council, a main theme of which was the supposed assault on the religious liberty of Christians in America. Cruz told the pastors that the Udall measure would “muzzle” clergy and was being proposed because “they don’t like it when pastors in their community stand up and speak the truth.”
Likewise, McGahn said at the Heritage event that the amendment would endanger the religious liberty of clergy: “What about pastors and churches? This is an issue that comes up once in a while. Can the government get in there and tell a priest he can’t talk to his congregation because it may somehow have something to do with politics?”
This might be true if the proposal would, in fact, “repeal the First Amendment.” In fact, the First Amendment’s protection of religious liberty would remain in place.
Of course, that didn’t stop the FRC’s Tony Perkins from somehow linking the Udall amendment to the imprisonment of a Christian woman in Sudan:
5. It’s like the Alien & Sedition Acts!
Along with comparisons to British control before the American Revolution, amendment opponents are trying to link the Udall proposal to the 18th century Alien & Sedition Acts.
In his interview with Rios yesterday, van Spakovsky claimed that “the last time Congress tried to do something like this was when they passed the Alien & Sedition Act in 1798 that criminalized criticism of the government.” Multiple GOP senators at today’s hearing, including Judiciary Committeee Ranking Member Chuck Grassley, repeated the talking point.
Of course, the amendment does nothing to reduce the right of individuals to criticize the government or politicians.
6. The polls are skewed!
When an audience member at yesterday’s Heritage Foundation panel asked about polls showing overwhelming opposition to the Citizens United decision, McGahn replied that the questions in the polls were “skewed.”
You can judge for yourself whether this question from a recent Greenberg Quinlan Rosner poll – which found 80 percent opposition to the Citizens United decision – is “skewed” on behalf of campaign finance law proponents:
7. What about disclosure?
In one of the least self-aware moments we’ve witnessed in the last few days, McGahn told the Heritage audience that campaign finance reform proponents could have just worked for tougher disclosure requirements, which the Supreme Court’s majority has consistently endorsed as a way to prevent corruption:
What’s interesting is the courts have upheld some disclosure of independent speech, which six months ago was supposed to be the answer, a year ago was supposed to be the answer – remember the DISCLOSE Act, Part 1 and Part 2? Well, that was supposed to cure all the ills in our democracy, but unfortunately I guess they’ve given up on that and they’ve moved to the more radical change, which is the constitutional amendment.
Of course, the DISCLOSE Act – which would have exposed the source of some of the “dark money” behind large campaign expenditures – was blocked by Senate Republicans. And McGahn, when he was at the FEC, fought hard against disclosure requirements proposed in the wake of the Citizens United decision, even though the decision explicitly sanctioned such requirements.
8. The poor don’t participate anyway!
Speaking to the Heritage audience, Burchfield presented the curious argument that the Udall amendment would demand to "equalize debate among the haves and have-nots,” and since “the portion is small” of “those with limited means” who participate in electoral debates, this would require “severe restrictions.”
The rich do not advocate a single viewpoint. Think of Sheldon Adelson and George Soros, they don’t agree on anything. There are strong voices on the left and on the right, not just in privately funded campaign advertisements, but also in the broadcast and print media. Only a small portion of those with significant resources even bother to participate in the debate. And among those with limited means, the portion is small indeed. In order to equalize debate among the haves and the have-nots, severe restrictions would be necessary. The quantity and quality of discourse would certainly suffer.
The amendment under consideration doesn’t require that everybody be heard an equal amount; instead, it gives Congress and the states the ability to create a more even platform for those who wish to be heard, regardless of their financial means.
Burchfield's reasoning echoes the arguments of voter-suppression proponents who claim that their laws only inconvenience people who don’t really care about voting anyway.
9. It’s voter suppression!
Although many of the advocates of unlimited, undisclosed money in politics are the same people pushing harmful voter suppression laws, Sen. Pat Roberts of Kansas yesterday insisted that it’s actually amendment proponents who are advocating “voter suppression” and want to “silence” critics.
10. Blame Saul Alinsky!
Inevitably, anti-amendment activists have begun invoking the right-wing bogey-man Saul Alinsky.
Hogenson told Rios that the Udall amendment is “just taken right out of Saul Alinksy’s book, ‘Rules for Radicals,’ it just makes up a gigantic lie and perpetuates it, that somehow democracy needs to be restored.”
Von Spakovsky also invoked Alinsky in his interview with Rios, claiming that criticism of the enormous political spending of the Koch brothers is an Alinskyite plot: “What’s really going on here is, look, if you look at Alinsky’s ‘Rules for Radicals,’ one of the rules that he sets out is you pick a villain and you basically blame those villains for all of the problems. It’s a way of distracting the public, it’s a way of diverting attention, and that’s exactly what Harry Reid and the Democrats are doing here.”
There is about a month remaining before the end of the Supreme Court’s current term, which is expected to be at the end of June. The Roberts Court has already done great damage in the cases it has decided so far. The far-right’s ruling in McCutcheon v. FEC drove another dagger into the heart of our democracy by empowering the wealthiest and most powerful among us to exercise even more control over our election. Town of Greece v. Galloway continued the arch-conservatives’ goal to undermine the constitutionally mandated separation of church and state.
But there are many important cases remaining to be decided over the next several weeks. Depending on how the Court rules, the entrenched power imbalance already harming our democracy could be significantly worsened.
Recess appointments and sabotage of the executive branch: NLRB v. Noel Canning.
This case has the potential of completely remaking the president’s recess appointment authority from how it has been understood and exercised since the 1800s. The recess appointment power has long been used by presidents of both parties during all kinds of recesses, not just those occurring annually between sessions of Congress. And it has always been used to fill vacancies regardless of when those vacancies first became open. But that may soon change.
It’s important to note that this case arose out of far-right conservatives’ efforts to nullify laws they don’t agree with. In this case, the laws in their crosshairs were those protecting workers, which they sought to undermine by preventing the National Labor Relations Board from having enough members to conduct business. Specifically, Republicans blocked the Senate from holding confirmation votes on President Obama’s nominees to the NLRB, finally provoking him to make recess appointments in January of 2012. This was during a vacation period when the Senate was meeting for pro forma sessions for a few minutes every few days, a practice that came about for the specific purpose of preventing recess appointments.
The Supreme Court has been asked to answer several questions: (1) Can a recess appointment be made only during the recess between two sessions of Congress (which occurs once a year and can last only a split second), or can it be made during any recess? (2) Can the Senate use pro forma sessions to turn what would otherwise be a recess into a non-recess, thereby preventing recess appointments? (3) Is a recess appointment limited to those vacancies that first became open during the same recess during which the appointment is made?
Attacks on public sector unions: Harris v. Quinn.
This case is about home care personal assistants (PAs) in Illinois, who provide in-home care under two of its Medicaid programs to people with disabilities and other health needs. But it has the potential, should the Roberts Court wish, to deliver a crippling blow to public sector unions nationwide.
Illinois PAs are classified as state employees for the purposes of collective bargaining and work under a common “agency shop” agreement: If the employees in a particular group choose to have a union represent them, the government employer recognizes that union as their exclusive representative. When the union carries out its collective bargaining functions, it does so on behalf of all the employees, regardless of whether they actually join the union. Members pay dues to support this activity on their behalf. To prevent “free riding,” the law requires non-union members to pay their fair share to support the basic collective bargaining activities being done on their behalf, but not to support non-collective bargaining activities such as political campaigning with which they might disagree.
The Supreme Court has long recognized that such arrangements for public employees are consistent with the First Amendment, dating back to a 1977 case called Abood v. Detroit Board of Education. But that precedent is threatened in this case as petitioners – backed by the anti-worker National Right to Work Legal Defense Foundation – call for the Roberts Court to overrule Abood. According to the PAs who brought this case, the arrangement violates their First Amendment freedom to choose with whom to associate. They also claim that exclusive representation violates their right to petition the government on matters of public policy, since the subject of their negotiations is the functioning and budgets of state Medicaid programs.
As Justice Kagan noted during oral arguments, this “would radically restructure the way workplaces across this country are run,” imposing so-called “right to work” regimes on all public employment throughout the United States. In so doing, it would substantially drain the coffers of public sector unions, which has been a longtime political goal of conservative extremists.
Unfortunately, the far-right Justices on the Roberts Court have already demonstrated their eagerness to join in the political attack on workers. Two years ago, in Knox v. SEIU (another case involving public sector unions), they severely undercut another longtime precedent that had enabled public sector unions to protect workers’ rights by deciding an issue that wasn’t before them, ruling against the union on an issue that it had not even had a chance to argue. As Justice Sotomayor pointed out in her dissent, the majority was acting in violation of the Court’s own rules to achieve this result. Whether they will show a similar eagerness to undercut public sector unions remains to be seen.
Corporate religious liberty rights: Sebelius v. Hobby Lobby and Conestoga Wood Specialties Corp. v. Sebelius.
These cases have the potential to give religious liberty rights to for-profit corporations, and to empower their owners and managers to ignore laws on health insurance coverage, employment discrimination, and other areas based on their religious beliefs.
Under the Affordable Care Act and HHS guidelines, employers generally have to provide certain preventive health services, including FDA-approved contraception, to women employees. The cases challenging this requirement involve several companies and their owners. Conestoga Wood is a for-profit corporation with 950 employees, owned by members of the Hahn family. Hobby Lobby is an arts and crafts chain store with over 500 stores and about 13,000 full-time employees, owned by members of the Green family. The Greens also own a corporation called Mardel, a chain of 35 for-profit Christian bookstores with about 400 employees.
The Greens and the Hahns have religious-based opposition to the use of some of the contraceptives covered by the law. They claim that the law violates not only their own religious freedom, but also the religious freedom of the large for-profit corporations they run. The primary law at issue in the cases is the Religious Freedom Restoration Act (RFRA), enacted in 1993. Under RFRA, a federal law cannot “substantially burden a person’s exercise of religion” unless it advances a compelling government interest in the least restrictive manner.
A key question for the Justices is whether a for-profit corporation is a “person” covered by RFRA. Unsurprisingly, before this litigation, no court had ever found that for-profit corporations have religious liberty interests either under RFRA or under the First Amendment. Yet a divided Tenth Circuit ruled for Hobby Lobby: They concluded that since corporations have First Amendment political speech rights under Citizens United, it follows that they also have First Amendment religious rights, and that RFRA should be interpreted to include them as “persons.” As PFAW Foundation Senior Fellow Jamie Raskin has written, “the outlandish claims of the company involved would not have a prayer except for Citizens United, the miracle gift of 2010 that just keeps giving.”
The next question is whether the coverage requirement is a substantial burden on the families’ (and possibly corporations’) exercise of religion, even though they are not forced to use or administer the contraception, or to affirm that they have no religious objection to it. Since the ones providing the health insurance are the corporations and not the individual owners, a ruling in favor of the owners would have implications for a concept basic to American law: that a corporation is a legally separate entity from its owners.
If the Justices find a substantial burden on the corporations or their owners, then they will determine if the government interest (furthering women’s health and equality) is a compelling one, and if the coverage provision advances that interest in the least restrictive manner.
While a victory for either the corporations or their owners would directly harm women’s health, it could also open the door to employers being able to exempt themselves from other laws that they have religious objections to, such as anti-discrimination protections.
Women’s Access to Reproductive Health Clinics: McCullen v. Coakley.
The Court is being asked to overrule a 2000 precedent upholding buffer zones around reproductive health clinics. The current case involves a Massachusetts law that creates a 35-foot buffer zone around such clinics (with exceptions for employees, patients and others with business there, and people passing through on their way somewhere else). Anti-choice advocates claim this violates their freedom of speech because it restricts only people with a particular viewpoint.
The lower courts disagreed, citing the 2000 case of Hill v. Colorado, where the Supreme Court upheld a buffer zone making it illegal to approach within eight feet of people at clinics for the purpose of counseling, education, or protesting. (This applied anywhere within 100 feet of the clinic.) That 6-3 decision analyzed the law as a content-neutral regulation of speech that was reasonable in light of the importance of protecting unwilling people’s right to avoid unwanted conversations and their right to pass without obstruction. However, two of the conservative Justices in the 6-3 majority have been replaced by far more conservative Bush nominees: Rehnquist (by Roberts) and O’Connor (by Alito). Since Justices Kennedy, Scalia, and Thomas dissented in the 2000 case, there may very well be five votes to not only strike down the Massachusetts buffer zone but also to overrule Hill completely.
As noted in an amicus brief that PFAW Foundation joined, the Massachusetts law applies to people regardless of the content of their speech and is a content-neutral way to ensure that women can enter the clinics to exercise their constitutional rights. The law does not prevent abortion opponents from approaching women who are more than 35 feet from the clinic entrance (as opposed to the Colorado law, which prohibited unwanted close contact anywhere within 100 feet of the clinic). And the record in this case shows that anti-choice advocates have consistently been able to distribute literature to individuals approaching clinics, as well as to have quiet conversations with them.
Nevertheless, many felt after oral arguments that five conservative justices were likely to strike down the Massachusetts law. If they do, we will see if they also overrule the 2000 precedent, opening the floodgates to another era of efforts to block women from exercising a deeply personal constitutional right.
Regulating greenhouse gases: Utility Air Regulatory Group v. EPA (and several companion cases).
In these cases, industrial interests and their allies are attacking the EPA’s ability to effectively regulate their greenhouse gas emissions.
In Massachusetts v. EPA in 2007, the Supreme Court ruled in a 5-4 decision that the EPA has the authority under the Clean Air Act to regulate emissions of greenhouse gases from new motor vehicles, since they easily fit within the CAA’s broad definition of “air pollutant.” This ruling, resisted by the Bush Administration, allowed the Obama Administration to adopt regulations on greenhouse gases from cars and trucks in 2010.
Under the EPA’s longstanding interpretation of the Clean Air Act, once EPA regulation of a pollutant from mobile sources (like cars and trucks) goes into effect, that pollutant is automatically subject to regulation under EPA rules for stationary sources (like factories and power plants). Those regulations involve permitting requirements for facilities emitting pollutants over statutory thresholds. But greenhouse gases are emitted in far greater volumes than other pollutants, and millions of industrial, commercial, and even residential sources exceed the statutory threshold. The EPA recognized that immediately adding these millions of stationary sources to its permitting programs would impose tremendous costs to both industry and to state permitting authorities. So in what is called the “Tailoring Rule,” the agency chose to move gradually, initially subjecting only the largest sources of emissions to mandatory greenhouse gas permitting, and planning a gradual phase-in for others, with planned rulemakings on how best to accomplish that phase-in.
Industrial interests, the Chamber of Commerce, and their conservative allies in state government have challenged the EPA rules. They argue that since the addition of greenhouse gases to the stationary sources permitting programs would cause what they characterize as results not desired by Congress (such as bringing huge numbers of buildings, including churches, schools, bakeries, and large private homes into the programs), it means that greenhouse gases are not the type of pollutant to which these permitting programs apply. And that lets the major industrial contributors to greenhouse gas pollution off the hook. They also claim that the Tailoring Rule is a rewrite of the Clean Air Act, which only Congress can do. So we end up with hyperbolic right-wing talking points in Supreme Court briefs, like this from Southeastern Legal Foundation:
This case involves perhaps the most audacious seizure of pure legislative power over domestic economic matters attempted by the Executive Branch since Youngstown Sheet & Tube [the 1952 case striking down President Truman’s seizure of steel mills during the Korean War].
As the Constitutional Accountability Center noted in their amicus brief supporting the EPA, the agency’s gradual approach satisfies rather than subverts the central purpose of the Clean Air Act:
This is not a suspension of the relevant statutory provisions nor a failure to enforce the CAA as written. To the contrary, EPA is setting priorities based on both practical realities and its limited resources, biting off no more than it or, as important, the regulated entities themselves, can chew at any given time. This phase-in of the CAA’s requirements is not a rewrite of the statute, and it is fully consistent with the executive authority vested in the President by Article II of our enduring Constitution and the separation of powers evidenced in the Framers’ design.
The Senate today voted to approve the nomination of David Barron to First Circuit Court of Appeals by a vote of 53 to 45.
Marge Baker, Executive Vice President at People For the American Way issued the following statement:
“The Senate should be applauded today not just for confirming a well-qualified nominee, but for taking another important step towards addressing the persistent issue of vacancies on our nation’s circuit courts. For years, Republicans have blocked, delayed, and obstructed the confirmation of judges to our circuit courts at every opportunity. In recent months, Majority Leader Reid and the Democratic Caucus have been making real strides in processing the backlog of nominees.
“We need to continue to push hard to make sure Americans find fair-minded judges waiting for them when they turn to the federal courts to protect their rights.”
Federal district court nominee Michael Boggs of Georgia had his confirmation hearing before the Senate Judiciary Committee on Tuesday. The hearing was his opportunity to address the many serious concerns we and others have had about his record. When he first ran for office as a state judge, he assured voters that they could know where he stood by looking at his legislative record, including his opposition to marriage equality. But judges aren’t supposed to let their personal political beliefs determine how they rule on cases. In addition, the legislative record he cited is deeply disturbing.
Unfortunately, his testimony in response to senators’ questions only deepened our concerns. So in a letter Wednesday to members of the Senate, People For the American Way expressed strong opposition to this confirmation. PFAW Executive Vice President Marge Baker and Senior Legislative Counsel Paul Gordon delineated the reasoning behind the organization’s opposition to Boggs’ confirmation.
“[Boggs’] record makes clear that senators should not confirm him to a lifetime position as a United States judge,” the letter states. “…we do not believe Michael Boggs has demonstrated that he would be able to bring to his service as a lifetime judge on the federal courts the requisite impartiality necessary for such a position.”
The five page letter discusses the problems around Boggs’ ability to perform in the role of judge and his actions relating to LGBT equality, reproductive rights, and government promotion of religion. It also discusses the controversy around his support for the inclusion of Confederate imagery in the Georgia state flag, as well as his candor before the Judiciary Committee. You can read the full text of the letter here.
After a two week recess, the Senate has made significant progress in judicial confirmations on its first week back. This is not due to a drop in Republican obstruction, but instead to Majority Leader Harry Reid’s determination to overcome that obstruction. Only one week during President Obama’s administration has seen more judicial confirmations. Since Monday, over GOP filibuster efforts, the Senate has confirmed eight district court nominees and one circuit court nominee, while breaking the filibuster of a second circuit court nominee. Nancy L. Moritz’s nomination to the Tenth Circuit is scheduled for Monday, May 5.
Clearing so many of President Obama’s judicial nominations is a nearly unprecedented occurrence for a Senate that has been bogged down by Republican obstruction every step of the way. People For the American Way’s Executive Vice President Marge Baker released the following statement:
“This was a good week for our justice system, with nine judges confirmed to the bench. Americans saw critical advancement in confirming the circuit court nominees who have been denied a vote for months. A Ninth Circuit judge was confirmed, and the filibuster of a Tenth Circuit judge was broken. We applaud the Senate for moving forward on these confirmations, which are crucial for our justice system to run efficiently and serve everyday Americans. It is heartening to see the Senate taking this important step to strengthen our judiciary.
“Senator Reid’s efforts to prioritize this issue and clear President Obama’s judicial nominations are making an impact. Despite Senate Republicans blocking nominees and delaying votes from the beginning, Senator Reid has pushed to move these nominations forward and this week, we’ve seen that work pay off.
“We hope to continue to see the Senate working for the benefit of American citizens by giving them the fully functioning courts they deserve.”
Tuesday afternoon, PFAW hosted a special member telebriefing on the continued GOP obstruction of judicial nominees. The briefing featured PFAW’s Executive Vice President Marge Baker and Senior Legislative Counsel Paul Gordon. They discussed how Republicans’ obstruction has reached staggering levels, despite changes in Senate filibuster rules.
Marge gave a brief background on the issue of GOP obstruction of judicial nominations, explaining how important federal judgeships are for deciding many issues that affect everyday Americans and defining why Republicans are determined to continue obstruction confirmations of judicial nominees. Their underlying goal is to keep as many seats empty as possible so a President Cruz or Rubio can fill them with right-wing ideologues.
She addressed the current narrative that President Obama has had more confirmations at this time than Bush had, and explained that these numbers need to be put in the context of the fact that Obama has had around 70 more vacancies to fill than his predecessor. That means for Obama’s confirmation results to be seen as equivalent to those of President Bush, he would have had to have many more nominees confirmed at this point in his presidency.
Paul began a discussion of some of the choke methods Republicans are employing to block the confirmation of President Obama's nominees to the bench. Paul delineated how all too often, GOP senators do not cooperate with the White House to suggest candidates for nomination, delaying the process from the very beginning. Once nominees are made and are sent to the Senate Judiciary Committee, we have seen GOP Senators delay the hearing by not submitting their blue slips, an unofficial tradition that gives home state Senators an opportunity to express their support for the nominee.
Marge explained ways in which Republicans are delaying the process once nominees are in committee, where the minority is allowed to request one-week delays. To express the magnitude of the obstruction, Marge explained how of the 270 nominees who have had a vote during President Obama's term, only 11 have had their votes held on time.
Once on the Senate floor, the situation doesn't get better as senators are able to filibuster nominees by refusing to give unanimous consent to the simple act of holding a yes-or-no confirmation vote. To offset these delays, Senate Majority Leader Harry Reid has been forced to file for cloture. Since the rules change in November, there have been cloture votes on all the nominees, adding hours of senate time in post-cloture debates (30 hours per circuit court nominee).
Marge highlighted that if all 30 nominees on the floor were voted on today, which is possible, then the number of current vacancies would drop precipitously, down to the level at this point in George W. Bush’s presidency. It is essential that these be voted on now, and that confirmation votes for nominations coming out of committee be voted on expeditiously.
Fielding questions from PFAW members, Marge and Paul discussed particular cases of obstruction like that of William Thomas's nomination in Florida, where Senator Marco Rubio withheld his blue slip in support of the nominee-–one that he himself had recommended in the first place. Members also made the connection between the effect of big money in politics and the motivations for GOP senators to obstruct confirmations, and attempted to find ways in which everyday Americans can make their voices heard to their senators regarding the issues of obstruction in judicial nominations. Paul used the example of the DC Circuit Court fight, where with the activism from people across the country rallying together helped get all the court's vacancies filled.
Marge and Paul, along with PFAW members, emphasized how as activists, we can intervene in the fight to take back our democracy by letting Senators know that average Americans are paying attention, watching how they respond and vote on judicial nominations, and considering who may be pulling their strings. For instance, a caller in Florida wanting to influence Marco Rubio could call his office and ask him to prevent a delay in a committee vote for nominees to fill four emergency vacancies. And everyone, regardless of whether there are vacancies in their state, can call their senators and call for the quick confirmation of the large number of nominees awaiting a floor vote. She also highlighted what is at stake in this mid-term election since the officials we elect today will help confirm the judges that will decide important cases that affect average Americans. For this reason, it is important to have demographic and experiential diversity in the courts so judges making decisions understand the impact of the law on regular Americans.
Last month, the US Senate failed to invoke cloture on the nomination of Debo Adegbile to head the Civil Rights Division at the Justice Department after a right-wing smear campaign that attacked Adegbile for helping provide legal representation at the appellate level to Mumia Abu-Jamal, a convicted murderer, while working at the NAACP Legal Defense Fund. Every Senate Republican and seven Democrats voted to filibuster Adegbile’s nomination, effectively blocking the nomination and throwing out the window the constitutional ideal that all criminal defendants should have access to quality legal representation.
Last week, over one thousand law professors came together to publicly condemn the vote by writing a letter to the Senate where they explain the ramifications of the vote for law students, lawyers, and the legal profession as a whole. The letter – dated April 25, 2014 – states:
[W]e are deeply concerned that the vote and the rationale publicly articulated by a majority of Senators rejecting Mr. Adegbile sends a message that goes to several core values of the legal profession. These include the right to counsel, the importance of pro bono representation, and the importance of ensuring that constitutional protections are afforded to every criminal defendant regardless of the crimes for which they are accused.
As law teachers we are particularly concerned about the disquieting message conveyed to law students and graduates entering the profession who may fear that their engagement with pro bono representation of unpopular clients may imperil their future eligibility for federal government service.
…We believe that the criticism of Mr. Adegbile, based on his representation of a death row inmate, is unjust and inconsistent with the fundamental tenets of our profession. The Sixth Amendment to the United States Constitution guarantees the assistance of counsel to persons charged with crimes, and all accused defendants are entitled to zealous representation by competent counsel.
The highest calling of any lawyer is to ensure that the Constitution is applied fairly and in accordance with the decisions of the U.S. Supreme Court to every defendant.
…The debate surrounding Mr. Adegbile’s confirmation also threatens to undermine the widely-recognized importance of lawyers providing pro bono representation to meet unmet legal needs. Providing representation to defendants on death row is among the most challenging, resource-intensive and critically important pro bono counsel a lawyer can provide. Lawyers engaged in this work should be commended rather than denounced for their hard-work and commitment to ensuring that the protections of the Constitution are extended even to those accused of heinous crimes.
…Finally, as every lawyer knows – including the 57 in the U.S. Senate – we are not our clients. The constitutional right to effective assistance of counsel would be turned on its head if the contrary view were advanced. Indeed, had past candidates for public office been held to the Senate’s unjust standard, our nation would have been deprived of the likes of President John Adams (who defended British soldiers charged with killing Americans in the Boston Massacre), Justice Thurgood Marshall (who defended countless black men on death row in the Jim Crow South), and Chief Justice John Roberts (who represented convicted serial killer John Errol Ferguson).
Simply put, the rule of law cannot succeed if attorneys are judged guilty by association with their clients. In rejecting a qualified nominee for public service based on conduct which reflects the best of our profession, the Senate has done a grave disservice to the legal profession and those who seek to enter it.
Upon returning from a two week recess, the Senate voted today to confirm Michelle T. Friedland to the US Court of Appeals for the 9th Circuit. Notably, Friedland is the 100th female judge confirmed under President Obama.
People For the American Way’s Executive Vice President Marge Baker released the following statement:
“Today’s confirmation is an important step towards addressing the judicial vacancy crisis on the federal bench, particularly in our Courts of Appeals, and it’s an important step towards building a more diverse judiciary. Confirming President Obama’s nominees makes our judicial system work better for Americans who depend on the courts. That’s doubly true in circuit courts which are frequently the courts of last resort for determining issues that affect American families every day.
“Senator Reid should be applauded for moving the confirmation process forward despite the GOP’s unrelenting campaign of obstruction. Since the beginning of President Obama’s administration, Senate Republicans have delayed votes and slowed down the process of filling judicial vacancies with qualified judges. Their campaign of obstruction has increased the backlog of vacancies waiting to be filled and weakened our judiciary.
“Today’s confirmation is a step in the right direction. Filling vacancies in our courts should not be a partisan issue—it should be about the American citizens whom these courts serve.”