This morning the Senate Judiciary Committee voted to approve Caitlin Halligan to be a U.S. Circuit Judge for the D.C. Circuit and Patty Shwartz to be a U.S. Circuit Judge for the Third Circuit. The Committee also approved nine District Court nominees and two nominees for the U.S. Court of International Trade.
Since 2003 Shwartz has served as a Magistrate Judge on the New Jersey U.S. District Court and includes among her supporters New Jersey governor Chris Christie. Halligan, an accomplished appellate litigator who has practiced in front of the Supreme Court, is currently General Counsel of the Manhattan District Attorney’s Office and has strong support from the law enforcement community in New York and around the country. She was first nominated for the seat on the D.C. Circuit in 2010 and has faced ongoing Republican obstruction despite the Court’s pressing vacancies. The D.C. Circuit Court, the nation’s second most important court, currently has four vacancies (out of only eleven judgeships). This has serious ramifications for the caseloads for each of the remaining active judges, which have continued to rise steeply in recent years.
“The need to fill vacancies has never been more pressing,” said Marge Baker, Executive Vice President of People For the American Way. “We are heartened that two highly qualified women have been approved by the Committee for the Circuit Courts. Halligan and Shwartz both deserve prompt votes.”
Of the thirteen judicial nominees voted on this morning, eight are women, six are minorities, and one is openly gay.
“These highly capable nominees come from diverse backgrounds,” Baker continued. “It is encouraging to see a list of judicial nominees who look like America.”
Today the Senate held its first vote on a judicial nominee for a Circuit Court since June 2012. William J. Kayatta, Jr. of Maine was confirmed as U.S. Circuit Judge for the First Circuit Court of Appeals by an 88-12 vote during today’s session. Despite broad bipartisan support and the support of his state’s senators in both the 112th and 113th Congresses, Kayatta faced ten months of unnecessary delays.
“We applaud Majority Leader Reid for his leadership in pressing for today’s vote,” said Marge Baker, Executive Vice President of People For the American Way. “We hope that this will be a turning point signaling a shift toward more timely confirmations for judicial nominees. This needless stalling – and during a time of unprecedented judicial vacancies – has gone on for far too long. The bottom line is that Americans need a functioning system of justice. They have grown weary with reckless obstruction.”
WASHINGTON – People For the American Way today urged the Senate to turn its attention to clearing the backlog of federal circuit court nominees created by Republican obstruction in the last Congress.
Today the Senate Judiciary Committee easily reapproved three highly-regarded circuit court nominees who were blocked from Senate votes last year despite strong bipartisan support. These nominees – First Circuit nominee William Kayatta of Maine, Tenth Circuit nominee Robert Bacharach of Oklahoma, and Federal Circuit nominee Richard Taranto – have all waited at least eight months for Senate floor vote since their first committee approvals.
Judiciary Committee ranking member Charles Grassley used his prerogative to hold back for a week two additional circuit court nominees who had previously been approved by the committee. Patty Shwartz of New Jersey has been waiting nearly a year for a vote from the full Senate. Caitlin Halligan, who was first nominated by the president in 2010 and first approved by the committee in 2011, would fill one of three vacancies on the highly influential Court of Appeals for the D.C. Circuit. Both will get new committee votes next week.
As the five circuit court nominees once more make their way through the confirmation process, President Obama continues to make new nominations, naming four new circuit court nominees this during the past week, including two today.
Marge Baker, Executive Vice President of People For the American Way, released the following statement:
“The five circuit court nominees before the committee today were all approved by the committee last year and all have been waiting at least eight months for a simple up-or-down vote from the Senate. It’s bad enough that Senate Republicans forced all five to go through the confirmation process again this year rather than allowing them a timely confirmation vote. But it would add insult to injury if they are forced to languish on the Senate floor again. Surely, after all the time that these five highly qualified nominees have already spent waiting for a vote after committee approval, the Senate does not need more time to consider their qualifications.
“The Senate should quickly hold votes on these long-delayed nominees in order to fill the vacancies on these important courts. “
The Thomas More Law Center, a right-wing legal group whose advisory board includes Rep. Michele Bachmann and former Rep. Allen West, is warning the Supreme Court that a ruling in favor of marriage equality would lead to “ideological totalitarianism” and hand gay rights advocates “a legal weapon with which to beat down ideological opponents.”
In an amicus brief filed last week [pdf], Thomas More argues:
To enshrine one side of a deeply divisive issue in constitutionally untouchable concrete is to fashion a legal weapon with which to beat down ideological opponents, at the cost of intellectual liberty. For this Court to say that it is irrational or illegitimate for a government to recognize, and act upon, the distinction between the potentially procreative marital act, and every other sexual act, would be for this Court implicitly to declare as irrational, benighted, or bigoted, all those individuals who adhere to the traditional view of marriage.
Already those who dare to voice objections to any part of the political program of various LGBT advocacy groups risk vilification, marginalization, or worse. Liberty suffers when one side of a debate is delegitimized as a matter of constitutional law.
In Lawrence, this Court has held that sexual acts between persons of the same sex may not be prohibited. But to go further and say that no government may treat such acts as different, for purposes of government policy or official recognition, from the unique marital acts of a man and a woman, would be enormously to expand the constitutional power this Court already affords sexual choices as such. To take that additional step would be to declare unacceptable and illegitimate the recognition of the uniqueness of the marital act. Those who subscribe to that recognition, in turn, then become pariahs, ignoramuses, or bigots in the eyes of the law.
Opponents of the legal redefinition of marriage already face the prospect of significant retaliation. Equating such persons, as a matter of constitutional law, with racist rednecks or backwards fools, serves as a legal license to continue or increase the legal and social marginalization of such persons. The price is the loss of liberty for those individuals who can no longer obtain gainful employment in their fields….and the loss of intellectual diversity for larger society…This Court should not foster the imposition of what would be, in effect, an ideological totalitarianism, i.e., a regime in which the unquestioning acceptance of the same-sex marriage movement represents the only permissible point of view. (Citations omitted)
The Thomas More Law Center is prone to this sort of dramatic prediction. The group unsuccessfully sued the Justice Department over the Shepard-Byrd Hate Crimes Prevention Act, which it claimed would create “a special class of persons who are ‘more equal than others’ based on nothing more than deviant, sexual behavior.” The group further claimed that "the sole purpose of this law is to criminalize the Bible and use the threat of federal prosecutions and long jail sentences to silence Christians from expressing their Biblically-based religious belief that homosexual conduct is a sin." The Shepard-Byrd Act, of course, only imposes jail sentences on people who have actually committed crimes and has yet to “criminalize the Bible.”
Back in 2010, when a federal district court in California heard the first legal challenge to the anti-gay Proposition 8, the judge asked the attorney defending Prop 8 how marriage equality would hurt the ability of straight couples to bear and raise children. The attorney sputtered and answered, “I don’t know.” A key witness for Prop 8’s supporters had the same answer, and later changed his mind to support marriage equality.
Four years later, the case is coming before the Supreme Court, and marriage equality opponents are still struggling to answer that question. In an amicus brief [pdf] filed with the court last week, the anti-gay Liberty Counsel took a shot at it. If marriage equality is achieved, Liberty Counsel argues, “Many boys will grow up without any positive male influence in their lives to show them what it means to be a man, and many girls will grow up without any female influence to show them what it means to be a lady.”
Not only does Proposition 8 further the state’s interest in steering childrearing into the husband-wife marriage model, but it furthers the important interest in providing male and female role models in the family. Male gender identity and female gender identity are each uniquely important to a child’s development. As a result, one very significant justification for defining marriage as the union of a man and a woman is because children need a mother and a father. We live in a world demarcated by two genders, male and female. There is no third or intermediate category. Sex is binary. By striking down Proposition 8, this Court will be making a powerful statement: our government no longer believes children deserve mothers and fathers. In effect, it would be saying: “Two fathers or two mothers are not only just as good as a mother and a father, they are just the same.”
The government promotion of this idea will likely have some effect even on people who are currently married, who have been raised in a particular culture of marriage. But this new idea of marriage, sanctioned by law and government, will certainly have a dramatic effect as the next generation’s attitudes toward marriage, childbearing, and the importance of mothers and fathers are formed. By destroying the traditional definition of marriage, the family structure will be dramatically transformed. Many boys will grow up without any positive male influence in their lives to show them what it means to be a man, and many girls will grow up without any female influence to show them what it means to be a lady.
The repercussions of this are incalculable and will reshape the culture in which we live. Many children learn appropriate gender roles by having interaction with both their mother and their father and by seeing their mother and their father interact together with one another. By redefining marriage to state that this is not a family structure that the state wants to foster and encourage, this Court will be overturning centuries of historical understandings of family and the home.
To give you an idea of the kind of parenting that Liberty Counsel supports, its lawyers Mat Staver and Rena Lindevaldsen, who are named on its brief, are also representing a woman accused of kidnapping her daughter rather than let her have contact with her other mother (the woman’s former same-sex partner).
Earlier this week, we looked at the slightly conflicted amicus briefs that the Family Research Council submitted to the Supreme Court ahead of its consideration of two major marriage equality cases. Today, Warren Throckmorton alerts us that the “ex-gay” group Parents and Friends of Gays and Ex-Gays (PFOX) has submitted its own brief to the Court.
The PFOX amicus brief [pdf], unsurprisingly, argues that gays and lesbians should not be a “protected class” under the law because homosexuality “is not an immutable characteristic.” As evidence, it presents the stories of four self-proclaimed “ex-gays” whose lives purportedly show that “sexual orientation can shift over time and does so for a significant number of people.”
One of the stories the brief presents is that of “Richard Cohen, M.A…an ex-gay who is now married with 3 children. He struggled for much of his life with unwanted same-sex attraction. Richard is the founder of the International Healing Foundation (IHF) and the author of Coming Out Straight, Gay Children Straight Parents, Let’s Talk About Sex, and Alfie’s Home.”
As it happens, Cohen is one of the most prominent purveyors of reparative therapy, the harmful process of trying to “cure” homosexuality that was recently banned for minors in California. And his book Alfie’s Home, cited in PFOX’s Supreme Court brief, is the most horrifically disturbing children’s book we have ever seen. We know, because we are unlucky enough to have a copy in our research library. Here is some of what the Justices have in store if they check out Cohen’s work:
Alfie’s Home was published in 1993 by Cohen’s International Healing Foundation. It starts out with a picture of the protagonist on a boat with his dad.
But it goes bad fast, going right for the right-wing myth that homosexuality is caused by childhood sexual abuse…
…and by insufficiently attentive parents:
Eventually, Alfie seeks help and takes part in the “touch therapy” advocated by Cohen…
…which leads him to “realize that I’m not gay” and start dating a woman:
You can see Cohen’s “touch therapy” in practice in this 2006 CNN interview:
He also made a cameo on the Daily Show.
For their own sakes, I hope the Justices don’t look too far into Cohen’s story. But if they do, they’ll get a revealing glimpse of the world that is trying to sink gay rights laws across the country.
The White House announced two new federal appeals court nominees today, Jane Kelly of Iowa to serve on the Eighth Circuit Court of Appeals and Gregory Alan Phillips of Wyoming to serve on the Tenth Circuit Court of Appeals.
Kelly’s nomination is notable for a number of reasons. If confirmed, she will become only the second woman ever to serve on the Eight Circuit Court of Appeals, which oversees seven Midwestern states, and the first from Iowa. She would also help to bring a greater diversity of professional backgrounds to the federal bench, coming to the position after a career as a highly-regarded federal public defender.
Kelly’s nomination underscores the Obama administration’s remarkable success in bringing a diversity of voices to the federal bench. A record 41 percent of President Obama’s confirmed nominees have been women and 36 percent have been people of color. In addition, Obama has nominated more openly gay federal judges than all previous presidents combined. Despite the Senate GOP’s routine stalling of the president’s nominees, he has succeeded in bringing unprecedented gender and racial diversity to the federal bench.
Both Kelly and Phillips have been nominated to vacancies that have not yet opened up (Kelly’s vacancy opens tomorrow and Phillips’ in April). If the Senate confirms them quickly it will avoid adding two more vacancies to an already over-burdened federal court system. Promptly filling the 10th Circuit vacancy is especially critical since the 12-judge Tenth Circuit is on track to have vacancies in one third of its seats. A nominee for one of the three current vacancies on the circuit, Robert Bacharach of Oklahoma, has been waiting over seven months for a Senate vote, despite strong support from his two home-state Republican senators.
WASHINGTON – People For the American Way called the filibuster reform deal set to be announced by Senators Harry Reid (D-Nev.) and Mitch McConnell (R-Ky.) only a modest step in addressing the extraordinary GOP abuse of Senate rules. Among the provisions of the expected reform deal are a rule addressing filibusters of the motion to proceed to legislation and a rule reducing the maximum post-cloture debate for district court nominations to two hours from thirty.
“It’s important that we as a country acknowledge the need to address the unprecedented obstruction undermining the Senate’s ability to do its work,” said Marge Baker, Executive Vice President of People For the American Way. “Americans elect members of Congress to do their jobs and solve the pressing issues facing the country. That’s not possible when one party is committed to mindless obstruction.”
People For the American Way has long documented the harm this obstruction causes to our judicial system. As detailed in PFAW’s recent memo, “Empty Courtrooms in Obama’s First Term: A Slow Start on Judicial Nominations Magnified Many Times Over By Republican Obstruction,” Senate Republicans have blocked the nomination and confirmation of federal judicial nominees at an unprecedented rate during President Obama’s first term, leading to record vacancy levels in the federal courts. While there were 55 vacancies when President Obama took office, that number leapt to 90 during his first year and has rarely dropped below 90 since then. As the second term begins, there are over 100 vacancies.
“While these reforms will offer some relief against the persistent obstruction, they fall far short of what is necessary to fix the problem,” Baker continued. “Limiting the time that votes on district court nominees can be delayed after cloture is invoked is important, but the problem extends far beyond the district court level. We are disappointed, in particular, that the party leaders were unable to agree on reforms that would prevent needless delay of confirmation votes for critically important circuit court nominations when 60 senators have already voted to end a filibuster. With four long-pending circuit court nominations held up for months – two since March, one since April, and one since June – and denied a vote even during the lame duck, this does not bode well for how Republicans intend to treat President Obama’s circuit court nominees during the 113th Congress.”
Beyond judicial nominations, obstruction impacts the Senate’s entire legislative agenda. During President Obama’s first term, the number of motions to prevent bills from being openly debated reached a historic high. Republicans are now abusing procedural tactics to impede even the most routine functions of government.
“It’s time for Senate Republicans to understand how impatient the American people have become with their tactics blocking progress on a variety of issues critical to our country’s wellbeing,” said Baker. “These reforms take modest steps in that direction, but we will continue to be vigilant in fighting this needless obstruction.”
In an interview with “60 Minutes” this weekend, Supreme Court Justice Sonia Sotomayor gave one of the best debunkings I’ve seen of the Right's line that a judge should be no more than an umpire, exercising no independent judgment and facing no difficult questions. Using the politically neutral example of the 3rd Amendment, Sotomayor explains how even the most seemingly clear-cut parts of the Constitution still require interpretation by judges and Justices:
Chief Justice John Roberts made headlines when, in his confirmation hearings, he said that a judge’s job was merely to call “balls and strikes.” The comforting words of his analogy hide the fact that most of the issues the Supreme Court approaches are complex and require human judgment – that’s why they reach the Supreme Court in the first place. They also conveniently obscure the fact that the conservative bloc on the Court is plenty influenced by their own ideology – there are plenty of examples here.
Justice Elena Kagan, in her confirmation hearings, gave another great rebuke to Roberts’ flawed baseball analogy. “We know that not every case is decided 9-0,” she said, “and we know that’s not because anybody’s acting in bad faith. It’s because reasonable people can reasonably disagree sometimes. So in that sense, the law does require a kind of judgment, a kind of wisdom. “