Fair and Just Courts

Brian Brown: Marriage Equality, Like Slavery And Segregation, 'Cannot Stand'

National Organization for Marriage President Brian Brown joined Iowa Republican National Committee member Tamara Scott on her radio program last week, where the two discussed the upcoming Supreme Court decision on marriage equality.

Brown told Scott that a pro-equality decision would be “illegitimate” and anti-LGBT groups would have to emulate the anti-choice movement after Roe and “build a movement that continues to stand and proclaim the truth.”

He compared a potential marriage equality decision to infamous Supreme Court rulings upholding the Fugitive Slave Act, the prohibition on citizenship for African Americans, and school desegregation.

“It may be a generation or two down the line, but this lie about what it means to be a human being cannot stand. It cannot stand,” he said. “And just because the Supreme Court says it’s so, it doesn’t make it so. The Supreme Court has had horrible decisions in the past, horrible decisions like the Dred Scott decision, Plessy v. Ferguson, the Fugitive Slave Act, Roe v. Wade. Just because the Supreme Court said it was so didn’t make it so, and there was an obligation for people living in those times to stand up and say ‘no this is wrong’ and to fight with every ounce of their being for the truth.”

He added that the movement would have to contend with “some weakness from Republican leaders on the marriage issue.”

Earlier in the interview, Scott asked Brown about the decision to approve hormone therapy for Chelsea Manning, which Scott joked was part of a “witness protection program.”

“Well, I don’t know about that, but I do know that once you redefine what it means, or attempt to redefine what it means to be a man and a woman, then this clearly is the next step,” Brown responded. “And I don’t think people, at times we may not think deeply about what we’re being asked to accept, especially on the issue of same-sex marriage, but what we’re essentially being asked to accept is the very deconstruction of what it means to be a mother and father, husband and wife, and what it means to be a human being.”

“And once you go down this road of acting as if the biological reality of mothers and fathers, husbands and wives doesn’t matter, it doesn’t exist, then the next step is to say that gender itself is a construct. And we’re seeing that across the country, the next step on quote-unquote ‘transgender rights,’” he said.

He added that transgender rights measures would have "profound consequences" that are being seen "across the country."

Roy Moore: Ban Gay Marriage To Keep Bisexuals And 'Transgendered' From Marrying Multiple People

Alabama Chief Justice Roy Moore doesn’t seem to quite understand the LGBT community that he is so set against, telling the Associated Press this weekend that if the Supreme Court rules in favor of marriage equality, bisexual and “transgendered” people will then demand to marry two people each. “Can they marry two persons, one of the same sex and one of the opposite sex? Then, you've got a family of four or how many?" he asked:

Moore argues that no federal court, even the U.S. Supreme Court, has the right to define marriage.

"You're taking any definition of a family away. When two bisexuals or two transgendered marry, how large is that family? Can they marry two persons, one of the same sex and one of the opposite sex? Then, you've got a family of four or how many?"

Moore also resisted comparisons of his standoff with the federal courts over marriage equality to former Gov. George Wallace’s stand against desegregation, saying that one major difference is that Wallace eventually backed down, and he won’t:

Moore's actions have drawn inevitable comparisons to former Gov. George Wallace's 1963 largely symbolic "stand in the schoolhouse door" aimed at preventing desegregation at the University of Alabama, nine years after education segregation was ruled illegal.

Moore said there is another difference.

"George Wallace moved," he said, noting how the former governor eventually stepped aside.

"I can't move from my position because I'm bound to uphold the Constitution," Moore said.

Matt Barber: States Should Defy Roe And Jail Abortion Providers

Matt Barber joined Steve Deace on his radio program yesterday to discuss the actions of Alabama Chief Justice Roy Moore, who’s urging judges in his state to defy a federal judge and refuse to issue marriage licenses to gay and lesbian couples.

Barber told Deace that whether or not the United States Supreme Court has “the authority to redefine the institution of marriage, which cannot be done, it’s contrary to reality to say that it’s anything other than the male and female,” Moore is on “solid legal ground” in claiming that the Alabama Supreme Court takes precedence over the federal district court that issued the marriage ruling.

Deace asked Barber why the conservative movement was less willing to defy the federal courts during Judge Moore’s 2003 standoff over placing a Ten Commandments monument in his courthouse or after Roe v. Wade, “when the court said, ‘We’re going to start just massacring, dismembering little innocent babies.’”

Barber agreed that states should have simply ignored the court’s ruling in Roe: “Why, back when the courts issued their ridiculous, non-scientific ruling in Roe v. Wade, why didn’t states like Texas and other states say, ‘Okay, well thank you for your opinion, but nope, here in the state of Texas, you kill an unborn child, you’ve committed murder, we’re going to throw you in jail for it’?”

Later in the interview, Deace repeated his prediction that a sweeping marriage ruling would ignite an even greater culture war battle than Roe did.

Barber agreed, saying the “goal all along” of the “sin-based, sodomy-based marriage” movement has been to persecute Christians.

“Religious liberty and so-called gay marriage cannot coexist in harmony,” he said. “If the Supreme Court goes Roe v. Wade on this decision and divines a new-fangled right to sin-based, sodomy-based marriage, Christians will be being persecuted across the country. They will be told, ‘You either put your stamp of approval on sin or you will be pushed to the fringes and marginalized and you will not be able to carry a job or function in society.’ That’s been their goal all along anyway.”

Republicans Should Move Judicial Nominations Next Week

The number of judicial vacancies continues to climb. Senate Republicans should move faster on judicial nominations.
PFAW

Thursday is Test Day for Senate Judiciary Republicans

Will Senate Republicans still needlessly delay scheduled judicial nomination committee votes now that they are in the majority?
PFAW

Tony Perkins: Marriage Equality Rulings Will Throw 'Our Country Into A Tailspin'

Family Research Council President Tony Perkins spent a good portion of his “Washington Watch” radio program on Monday praising Alabama Supreme Court Chief Justice Roy Moore and the state probate judges who are refusing to follow a federal court order legalizing same-sex marriage in the state.

Perkins said that he, too, is “not going to listen to these courts that are wrong” when they make a ruling that is “inconsistent with nature itself, certainly inconsistent with scripture.”

The federal courts, he added, “are setting themselves up to lose credibility and put, I believe, our country into a tailspin.”

What is the rule of law? In a free society, a democratic society, the rule of law is generated, over all, [by the] Constitution and general consensus. We agree. And when you go too far out, which this administration has and these courts are, it doesn’t work. An unjust law is no law at all.

And they are setting themselves up to lose credibility and put, I believe, our country into a tailspin. Because I’m not going to listen to these courts that are wrong, when they have taken away the rights of the people and just imposed upon this nation a viewpoint that is not shared by a majority of the people. Even if it was, it’s inconsistent with nature itself, certainly inconsistent with scripture.

A Victory in the Fight for Fair Trials for Undocumented Immigrants

In an important victory for fair courts and the principle that justice is available to all, an appeals court in California today issued a decision granting a new trial for an undocumented immigrant whose immigration status was revealed to jurors despite its irrelevance to the issues in the case. People For the American Way had joined the UC Hastings Appellate Project and the ACLU of Southern California in submitting an amicus brief in the case, Velasquez v. Centrome, Inc. dba Advanced Biotech.

In this case, a former factory worker named Wilfredo Velasquez sued Advanced Biotech, Inc. for its alleged failure to tell his employer about the harms of a chemical he was exposed to while on the job — exposure which he says led to a devastating lung disease. But during the jury selection, the trial judge revealed to jurors that Velasquez was undocumented, an action that, in the words of our amicus brief, “unnecessarily injected prejudice into the selection process, making it impossible to know whether Mr. Velasquez received his constitutionally guaranteed fair trial by impartial jurors.” The threat to Velasquez’s right to a fair trial became clear when the jury concluded that Advanced Biotech had indeed been negligent — yet still awarded no damages to Velasquez, meaning that he, in effect, lost his case.

Fortunately, today the appeals court righted this wrong by granting Velasquez a new trial. The state appeals court noted that “cases both in California and in multiple other jurisdictions have recognized the strong danger of prejudice attendant with the disclosure of a party’s status as an undocumented immigrant.”  Indeed, we have seen how undocumented immigrants face ongoing hostility in our country.

As the amicus brief notes, every person, regardless of immigration status, has a right to “a verdict rendered by an impartial jury.” It is a right that must remain a foundational principle of our judicial system.
 

PFAW

PFAW Foundation Joins Amicus Brief in SCOTUS Case on Health Care Tax Subsidies

Yesterday PFAW Foundation joined the National Women’s Law Center, the law firm Hogan Lovells, and close to 70 other organizations in submitting an amicus brief in King v. Burwell, the pending Supreme Court case on tax subsidies for the Affordable Care Act (ACA). The brief notes that a decision in favor of those challenging the subsidies would threaten a central goal of the law: making access to health insurance possible for millions of people across the country.

The ramifications of a wrong decision in this case could be enormous, causing serious harm in the lives of people now relying on health insurance through the ACA. If the core tax subsidy provision were to be struck down, the brief points out, women of color would be especially hard-hit:

These tax credits are critical. Over 9 million women, who would otherwise go without affordable health insurance, are eligible to benefit from them, including a disproportionate number of women of color.

…The tax credits are not only critical to women’s health; they are critical to the ACA’s continued viability. Congress encouraged participation in the insurance market primarily through the careful interrelation of the individual responsibility provision, market reforms, and tax-credit provisions. Eliminate the tax credits, and the system unravels.

The amicus brief highlights the stories of many real women who depend on the tax credits to access needed health care:

Marilyn Schramm, 63, is a 26-year cancer survivor from Austin, Texas. She endured treatment for cervical cancer in her thirties and has experienced life-long complications from that treatment that have required surgeries since then. Marilyn retired several years ago. When her COBRA rights were exhausted, Marilyn was forced to go without insurance for six months because of her “preexisting conditions.” But in January 2014, Marilyn could finally purchase insurance on the federally-facilitated Exchange in Texas, with at least half of her premium covered by the ACA’s tax credits.

Marilyn has now been diagnosed with colon cancer; following surgery, she began chemotherapy this month. Her coverage depends on the ACA’s prohibition on excluding those with pre-existing conditions, and on its premium tax credits: With her modest retirement income, Marilyn is unsure whether or how she could pay her insurance premium without the tax credits.

As we have noted before, this case is a blatantly political attack intended to do serious damage to the Affordable Care Act. The millions of women and men across the country who rely on the ACA in order to access health care ranging from preventative screenings to cancer treatments deserve far better.

PFAW Foundation

Roberts Court Sets Its Eye on Fair Housing Law

At least four of the Court's conservatives are set on imposing their own ideological vision of what our nation's fair housing laws should look like.
PFAW Foundation

PFAW Edit Memo: White House Outreach to Republicans on Judges Should Be Met with Cooperation, Not Stonewalling

To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: January 13, 2015
Re: White House Outreach to Republicans on Judges Should Be Met with Cooperation, Not Stonewalling

Since Republicans now control the Senate, many are asking how that may affect the confirmation of federal judges, one of the Senate’s most important tasks. The short answer: It shouldn’t.

The Senate GOP engaged in unprecedented obstruction as the minority party, and the increased damage they could do to America’s judiciary now that they control the Senate is significant. They have hardly spent the past six years working in good faith with the White House to strengthen our nation’s courts.

But when Democrats controlled the Senate during the last two years of George W. Bush’s term, they did not stop processing nominations.  There were 56 vacancies at the beginning of 2007, and throughout the 110th Congress of 2007-2008, the number of vacancies generally remained at 50 or fewer.  The Senate confirmed 68 circuit and district court judges during those two years (about a fifth of Bush’s eight-year total), getting the number of vacancies down to as low as 34 in the early fall of 2008.  Even when an unusually high number of vacancies after Election Day drove that number up to 55 by Inauguration Day, that was still just about what it had been two years earlier.  Americans have the right to expect similar success in filling vacancies in 2015-2016.  The first and necessary step is for the president to choose nominees, but both parties have a role here.

Despite having the sole constitutional authority to nominate judges, President Obama has bent over backwards to cooperate with senators of both parties before exercising that authority. Any conversation about President Obama’s choice of judicial nominees in 2015-2016 has to start with an understanding of that accommodation, and of its reasonable limits.

As of January 12, there are 32 current judicial vacancies without nominees, most of them vacant for over a year, and some going back as far as 2010-2012.  Tellingly, all but three are from states with Republican senators (and the oldest such vacancy from a two-Democratic state only dates back to August 2014).

Two Fifth Circuit vacancies have remained open for far too long without nominees because the White House has been consulting extensively with Sens. Cornyn and Cruz, the two Republican senators from Texas. Despite press reports long ago that he had two people in mind – moderate district judges who had been recommended for those positions by Republicans and, in one case, nominated by one – he did not nominate them. Cornyn and Cruz have apparently not specifically approved them, and the White House has chosen to wait and to continue consultations. Obama has shown great willingness to cooperate even though both vacancies were long ago formally designated as judicial emergencies by the Administrative Office of U.S. Courts. One of these vacancies has been open for more than two years, while the other was announced more than a year ago. After such a long period of extensive consultation, and given the significant need for these vacancies to be filled, the president would have been fully justified in making nominations many months ago. That he has not already done so is just one example of how accommodating of Republicans he has been.

That accommodation extends to the architect of Republican obstruction, Mitch McConnell. In June of 2013, Judge Boyce Martin announced that he would retire that August, opening up a Kentucky slot on the Sixth Circuit. Just two months earlier, citing the increasing caseload, the Judicial Conference of the United States asked Congress to create an additional judgeship for the Sixth Circuit. Last winter, President Obama began vetting a potential nominee. While McConnell and fellow Kentucky senator Rand Paul have not commented on her publicly, Obama has not nominated her, or anyone else, in the year and a half since the vacancy was announced. Again, this is not a president who ignores senators of the other party.

No circuit court vacancy is older than the Wisconsin slot on the Seventh Circuit, which dates back to January of 2010. President Obama’s original nominee was supported by the two Democrats who were then the state’s senators, Herb Kohl and Russ Feingold. She was among the dozens of nominees left unconfirmed at the end of 2010 who had to be renominated at the beginning of the 112th Congress, by which time Democratic Senator Feingold had been replaced by Republican Senator Ron Johnson. Johnson then made clear in 2011 that he did not support the nomination, and it was not processed by the Judiciary Committee. Another election cycle came and went, and Kohl was replaced by Democrat Tammy Baldwin. Johnson and Baldwin put together a judicial nominations commission to vet possible nominees, a common practice at the district court level. But they announced that they would also use it to recommend circuit court nominees, which is not at all common since senators generally have a much smaller role to play in the selection of circuit court nominees from their state than they do with district court nominees. Not only that, the senators announced that their commission would not get around to the circuit court nomination until it had first finished with two separate processes for district court vacancies. That has caused significant delay; the commission only began looking at potential nominees this fall. This for a judicial emergency vacant since 2010. While the president would have been fully justified in nominating someone and fighting for their confirmation over Sen. Johnson’s disapproval, he has instead chosen to work with both Wisconsin senators.

Similarly, although Eleventh Circuit Judge Joel Dubina of Alabama announced his intent to take senior status back in February of 2013, and two Alabama district court seats have been vacant since August of that year, the lack of a nominations for any of  these judgeships after all this time suggests that the White House is engaged in consultations with Republican Sens. Jeff Sessions and Richard Shelby. (Good-faith consultations can lead to highly favorable results, as we saw at the end of 2014 with a Pennsylvania vacancy on the Third Circuit. After fruitful conversations between the White House and Senators Bob Casey (D) and Pat Toomey (R), this fall’s nomination of Luis Restrepo for that seat was immediately met with the strong endorsement of both senators.)

In all of these cases, there are many highly qualified potential nominees whom progressive advocates and mainstream lawyers would be happy to have on the bench. Some may say the president has put too high a priority on consulting with Republican senators, and that he should make nominations for these seats and then fight for their confirmation over GOP objections. Whatever the merits of this position, that isn’t what has happened: President Obama’s tenure in office has been characterized by remarkable willingness to consult with the Republicans who engage in unprecedented obstruction to keep him from filling vacancies on the federal bench.

Senators of both parties jealously protect their prerogative to be consulted by the White House on judicial nominations in their states, a prerogative that President Obama has respected.  But when weeks of consultations drag on into months or even a year or more, it may indicate that something has gone wrong.  In the case of the Third Circuit, the White House clearly felt positive about its ongoing conversations with Pennsylvania’s Democratic Sen. Casey and Republican Sen. Toomey, and they led to a quality nominee, Luis Restrepo.

But no senator should see President Obama’s outreach as an opportunity to coerce him into naming an unacceptable far-right nominee.  Keeping the judgeship vacant even longer in the hopes that a future (hopefully Republican) president will fill it is not a reasonable option, serving only to make justice less available to those who need it most.  At some point, such senators have two choices.  They can agree with the White House on someone everyone can support.  Alternatively, they should acknowledge the extensive consultations that occurred and present any concerns about the eventual nominee in public before the Judiciary Committee, where the nominee has a chance to respond.

Either way, Republican senators cannot be allowed to indefinitely prevent anyone from being nominated to fill longtime judicial vacancies.

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PFAW Praises Obama’s Renomination of Judicial Nominees

People For the American Way today praised President Obama’s renomination of 11 jurists named last year for seats on the federal judiciary.

“President Obama’s actions today are a reminder that the judicial confirmation process needs to continue regardless of which party controls the Senate,” said Marge Baker, Executive Vice President at People For the American Way. “Partisan wrangling shouldn’t stand in the way of a judicial system that works. Senator Grassley, as the new chair of the Senate Judiciary Committee, should follow the example set by his colleague Senator Leahy and schedule timely hearings and votes on these nominees.”

During the last two years of President Bush’s term, Democratic leaders in the Senate confirmed 68 nominees and made sure the number of vacancies did not increase on their watch. At the end of that period, the vacancy rate was roughly equal to the point at which Democrats took control of the Senate, despite an unusually high number of vacancies occurring after Election Day 2008.  

“President Obama has gone out of his way over the last six years to consult with Republican Senators to find consensus nominees acceptable to both parties,” said Baker. “Now it’s time for Republicans to show whether or not they’re willing to drop their campaign of obstruction and get on with the important business of staffing our federal courts.”

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Tony Perkins Regrets Direct Election Of Senators Because It Led To Gay Marriage

Family Research Council President Tony Perkins, who was once a candidate for U.S. Senate in Louisiana, seems upset that voters can directly elect their state’s two senators, a power that was held by state legislatures until the adoption of the 17th Amendment in 1913. Speaking on his radio program yesterday, Perkins called the amendment “one of the first places we got off in terms of how our government is functioning,” lamenting that “senators are no longer accountable to the states.”

Having voters instead of state lawmakers elect senators, Perkins lamented, “had a drastic impact upon judicial appointees that the Senate has signed off on that overturned state laws, like we’ve seen this rash of overturning these state marriage amendments, that never would’ve happened if these senators who approved these judges were still held accountable to state legislatures.”

Maybe the drafters of the 17th Amendment were just playing the long game for the radical homosexual agenda.

Sorry, Sen. McConnell, But on Judges, Your Party IS "Scary"

Mitch McConnell says Americans shouldn't fear GOP control of the White House and Congress. He is wrong.
PFAW

Fourth Circuit Strikes Down North Carolina Ultrasound Law

Judges nominated by Reagan, Clinton, and Bush-43 agree that North Carolina's law violates the Constitution.
PFAW Foundation

Patrick Leahy and This Year's Success on Judges

This year's great success on judicial nominations owes a great deal to Sen. Patrick Leahy.
PFAW

PFAW Edit Memo: 2014 – A Year of Striking Success on Judicial Nominations

To: Interested Parties
From:  Paul Gordon, Senior Legislative Counsel, People For the American Way
Marge Baker, Executive Vice President, People For the American Way
Re: 2014 – A Year of Striking Success on Judicial Nominations
Date: December 17, 2014

The lame duck session that has just ended caps a banner year for effectively pushing back against the Republican obstruction of judicial nominees that we have seen since the moment Barack Obama took office. This year has shown just how much progress America can make in ending the deliberate sabotage of the third branch of government, so that our nation’s federal court system can do what the Founders intended it to do: Protect every person’s rights and ensure that everyone can have their day in court.

This month, the nation achieved an important milestone: Because Senate Democrats recognized the importance of the courts and consistently overcame GOP obstruction, there are finally fewer circuit and district court vacancies than there were when Obama took office. From 55 vacancies on Inauguration Day, we are down to 39 today.

Regardless of the change in control of the Senate beginning next month, Americans will still deserve fair and timely consideration of judicial nominees. In fact, that would be consistent with how George W. Bush’s nominees were treated when the Democrats took over the Senate for the last two years of his presidency.

Background

Since the day that Bush left office, Republicans have sought to leave as many judgeships as possible vacant for as long as possible, apparently in the hopes of maximizing the next (hopefully Republican) president’s opportunities to nominate his or her own judges and impose a right-wing ideology on America’s federal courts. With that goal, they have simply blocked confirmation votes, regardless of the nominee. The result has been longer backlogs in courts across the country and increased delays in providing justice for many Americans.

Under Senate rules, unanimous consent is needed to move directly to schedule a confirmation vote for a judicial nominee – something that used to be regularly granted to nominees with strong bipartisan support, as most lower court judges have had. But for the first time, Republicans under President Obama have routinely refused to allow timely votes on nearly every nominee – even the vast majority who have little or no Republican opposition – effectively but invisibly filibustering just about every one of them. Only after months of delay would Republicans finally consent to a vote. In all other cases, the only way to break the logjam has been for Democrats to file a cloture motion to end the filibuster, a burdensome and time-consuming practice, and (until late last year) one requiring a supermajority of 60 votes. So for the first five years of the Obama presidency, confirmations were regularly delayed for no reason, usually out of public view, for months longer than necessary. For instance, Richard Taranto was confirmed to the Federal Circuit unanimously, but the Senate was not allowed to hold a vote until 347 days after his committee approval; Republicans never publicly explained why they would not allow him a vote earlier.

Overcoming Obstruction in 2014

This year, things changed. By late 2013, five years of unprecedented obstruction had climaxed in a declaration by GOP senators that they would filibuster any nominee for the critically important and understaffed District of Columbia Circuit Court of Appeals, no matter who the nominee might be. Senate Democrats concluded that the Senate and the nation would be significantly damaged if this were allowed to continue. The chamber responded to the exceptional obstruction by reforming its procedural rules. Going forward, cloture votes to end filibusters of executive and judicial nominees (with the exception of those to the Supreme Court) would require a majority of senators voting, rather than 60 votes.

After that, when Republicans refused to consent to a vote, Majority Leader Reid filed a cloture petition and set a vote. Taking advantage of the change in Senate rules, Democrats were able to defeat the GOP filibusters with a simple majority vote. While Republicans did not consent to even one judicial confirmation vote in 2014 until the closing minutes of the 113th Congress, they also were not able to stop the Senate from voting on any of them. And despite the significant time that Republicans generally forced the Senate to spend on each confirmation – drawn-out roll-call cloture votes, post-cloture time for debate of 30 hours for circuit court nominees and two hours for district court nominees (a debate that usually did not occur despite the time set aside for it), then time-consuming roll-call confirmation votes – Reid and the Democrats persevered. Rather than wait for months longer than needed after committee approval before having a floor vote, the Senate in 2014 was able to act in a more timely – and appropriate – manner.

One of the basic and most important responsibilities of the U.S. Senate under the Constitution is to vote whether to confirm judges and keep the federal judiciary functioning. In 2014, for the first time in the Obama era, the Senate was not blocked from doing that in an efficient and timely manner.

The figure below shows the dramatic drop in how long the average nominee has had to wait for a confirmation vote after approval by the Judiciary Committee as a result of the rules change:

Chart1

With the Senate at last freed to do its job, the number of confirmation votes grew significantly over the past year.

chart2

 

This has ameliorated the intentionally generated vacancy crisis that has hobbled our courts since President Obama took office. There were 55 vacancies when Obama was inaugurated in 2009. With the Senate blocked from holding timely confirmation votes, that number went to historic highs, skyrocketing to 100 by the end of that year. When the 111th Congress ended in December of 2010, Republicans blocked confirmation votes for 19 qualified nominees who had been approved by the Judiciary Committee, the overwhelming majority of whom had been approved unanimously or with almost unanimous support. As a result, 2011 opened with 95 vacancies – and with a needless bottleneck of nominations that delayed confirmation votes for all nominees down the line. With Republicans preventing the Senate from confirming even consensus nominees, it counted as a major accomplishment if the number of vacancies dipped into the low 80s, or even the 70s, as it sometimes did.

As a result, at the beginning of this year, our federal court system was suffering from 92 vacancies. And now? As of the end of the lame duck, we’re down to 39 circuit and district court vacancies, far fewer than when Obama took office. This is a major accomplishment, one that the White House and Senate Democrats can be proud of.

Supreme Court and Circuit Courts:
Undoing the Damage of the Bush Years

Our Constitution and our laws protect our right to vote, to have a workplace free of discrimination, to get married, to make our own reproductive decisions, to hold corporations accountable when they unlawfully injure or cheat us, and to have a voice in our democracy. But those rights don’t mean anything if we don’t have effective courts – and judges – to vindicate them when they are infringed.

Knowing the important role federal courts play in shaping our laws and guaranteeing – or frustrating – our basic rights, President Bush and his supporters set out to put as many far right ideologues on the federal appellate courts as possible. The most controversial of his court nominees are busy re-making law across the land.

Most notoriously, John Roberts and Samuel Alito have joined with Reagan and Bush-41 nominees Antonin Scalia, Clarence Thomas, and Anthony Kennedy to give hard-right ideologues a frequent 5-4 majority on the Supreme Court. They have regularly bent the law and confounded logic in order to rule in favor of the powerful in case after the case, rewriting our Constitution and federal laws. Citizens United, Shelby County, and Hobby Lobby are just a few of the growing number of cases where they have used the federal bench as a platform to transform the country to fit their personal political ideologies, notwithstanding what the Constitution and our laws actually say.

While the Supreme Court is extremely important and well known, it only hears around 75 cases a year. Most Americans in federal courts have their cases decided at the district or circuit level. Circuit court rulings have an enormous impact on the law, and only a tiny portion of them are reconsidered by the Supreme Court. That is why George W. Bush and his partisans spent so much effort to confirm ideologues like Janice Rogers Brown, who now holds a lifetime position on the D.C. Circuit. She wrote a 2012 opinion holding that graphic warnings on cigarette packages violate the tobacco companies’ free speech rights. She joined a 2013 opinion striking down a National Labor Relations Board rule requiring employers to post workers’ legal rights, framing it as “compelled speech” indistinguishable from forcing schoolchildren to say the Pledge of Allegiance or requiring drivers to display a political message (Live Free or Die) on their license plates. She even defended the ideology of the discredited Lochner era in a 2012 concurrence, writing that courts’ deference to everyday economic and business regulations “means property is at the mercy of the pillagers.”

In contrast to ideologues like Brown, President Obama has named judges characterized by their fidelity to the Constitution and our laws, and the impact on ordinary Americans has been enormous. For instance, the full D.C. Circuit, which now has four Obama nominees among its eleven active judges, this fall vacated a widely criticized panel ruling by two conservative judges striking down a key subsidies provision of the Affordable Care Act. The legal argument against the subsidies has been widely recognized as weak, with a transparently political motive: destroy the financial underpinnings of Obamacare and therefore destroy the law itself. On the same day of the DC Circuit’s panel ruling, a unanimous panel of the Fourth Circuit had upheld the law. Obama nominee Andre Davis accurately described what the far right plaintiffs are seeking judicial allies to do:

[They want] our help to deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear.

(Ominously, the Supreme Court has since decided to hear the case, despite its legal weakness.)

As that one example illustrates, the D.C. Circuit is hardly the only one of our nation’s 13 federal circuit courts that looks very different today from when Bush left office. Where there was then only one circuit with a majority of its active judges nominated by Democratic presidents, today there are nine.

chart3

Especially this year, supported by the Senate rules change, progress has been remarkable. The 113th Congress confirmed 23 circuit court judges. One would have to go back to the 99th Congress in 1985-1986 to see that many circuit court judges confirmed during a single Congress.

The past year has seen the confirmation of nominees like Michelle Friedland (9th Circuit), Pam Harris (4th Circuit), and Nina Pillard (D.C. Circuit), jurists who understand the impact of the law on everyday Americans, who cherish our constitutional principles of equality and liberty, and who don’t see the federal courts as just another part of government that can be used to enhance corporate power. Last month, for instance, Judge Pillard authored an opinion for the D.C. Circuit upholding the accommodation made for religious nonprofits with regard to the Affordable Care Act’s contraception coverage provisions, which allows them to avoid having to contract, arrange, or pay for contraception they disapprove of. An organization called Priests For Life argued that even the accommodation violates their religious liberty. In her opinion, Pillard devoted significant attention to an issue essentially ignored by the far-right Supreme Court majority in Hobby Lobby: why the ACA contraception coverage requirement is so vitally important. She also recognized that the plaintiffs were using religious liberty not as a shield to protect their exercise of religion, but as a sword to prevent others from exercising their rights.  The Court itself may well decide to take this or another case raising these issues, but Judge Pillard’s opinion provides a powerful rationale for the result upholding women’s rights under the ACA.

The Next Two Years

For the next two years, Republicans will control the Senate, with incoming Majority Leader Mitch McConnell and incoming Judiciary Committee chairman Chuck Grassley exercising enormous influence over the confirmation process.  While Ted Cruz has called for the Senate not to confirm any of President Obama’s judicial nominees, Grassley has spoken in more measured terms.

Indeed, if Republicans follow precedent, we should not see a marked decrease in judicial confirmations.  All three of the most recent two-term presidents faced a Senate controlled by the other party during his last two years in office.  Yet in each case, nominations continued almost as before.  In fact, of all the circuit and district court judges confirmed during George W. Bush, Bill Clinton, and Ronald Reagan’s full terms, about 20% were confirmed in their final two years in office, according to data available from the Administrative Office of U.S. Courts.

The Bush example is particularly instructive.  At the beginning of 2007, 56 judgeships were vacant.  Rather than taking advantage of their new majority as a result of the 2006 elections to allow vacancies to build up, Senate Democrats made sure to process Bush’s nominees in a fair and timely manner.  In fact, just by mid-February of 2007, the Senate had already confirmed eight judges, despite the inevitable administrative delays accompanying a new Congress, particularly with a new majority.  Throughout the 110th Congress of 2007-2008, the number of vacancies generally remained at 50 or fewer.  The Senate confirmed 68 judges during those two years, getting the number of vacancies down to as low as 34 in the early fall of 2008.  Because an unusually high number of vacancies opened up after Election Day, that number had climbed back to 55 by Inauguration Day, but even with that increase, the number of vacancies ended up at about what it had been two years earlier.

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Conclusion

If 2014 has shown us anything, it is this: Standing up to bullies works. The White House has made judicial nominations that it can be proud of, and Senate Democrats have overcome years of Republican obstruction to get these nominees confirmed. Despite the GOP’s herculean efforts to prevent President Obama from exercising the powers he was elected – and re-elected – to use, he is successfully restoring balance to the nation’s courts. For the first time, the number of courtroom vacancies is less than what it was when Obama took office, and highly qualified jurists are taking their places on our federal circuit and district courts.

During the next two years, the nation’s eyes will be on the Senate to see if the Republicans use their majority to resume the obstruction they engaged in previously.  And both during this time and afterward, the courts will remain critically important, and progressives will have to fight hard to protect those courts and keep them functioning effectively, with judges who won’t seek to use their positions to short-circuit our most important rights.

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