Fair and Just Courts

Breaking: Judge Strikes Down Ban on Same-Sex Marriage in Utah

Adding to this week’s great news on marriage equality, today U.S. District Court Judge Robert J. Shelby struck down Utah’s same-sex marriage ban, which was put into the state constitution by referendum in 2004.

One of the far right’s standard attacks on the increasing number of judicial opinions striking down discriminatory marriage laws is that judges are “redefining marriage” and “usurping the legislature.”  No doubt they will do so again in this case.  Fortunately, Judge Shelby opens his opinion with a brief but important explanation of how the American constitutional system works:

The issue the court must address in this case is therefore not who should define marriage, but the narrow question of whether Utah’s current definition of marriage is permissible under the Constitution.…

[T]he legal issues presented in this lawsuit do not depend on whether Utah’s laws were the result of its legislature or a referendum, or whether the laws passed by the widest or smallest of margins. The question presented here depends instead on the Constitution itself…

In his opinion, Judge Shelby also takes apart the harmful, bogus argument that preventing same-sex couples from marrying somehow “elevate[s] the status of opposite-sex marriage”:

Rather than protecting or supporting the families of opposite-sex couples, Amendment 3 perpetuates inequality by holding that the families and relationships of same-sex couples are not now, nor ever will be, worthy of recognition. Amendment 3 does not thereby elevate the status of opposite-sex marriage; it merely demeans the dignity of same-sex couples. And while the State cites an interest in protecting traditional marriage, it protects that interest by denying one of the most traditional aspects of marriage to thousands of its citizens: the right to form a family that is strengthened by a partnership based on love, intimacy, and shared responsibilities. The Plaintiffs’ desire to publicly declare their vows of commitment and support to each other is a testament to the strength of marriage in society, not a sign that, by opening its doors to all individuals, it is in danger of collapse.  (Emphasis added.)

Congratulations, Utah!

PFAW

Six Ways Senate Republicans Are Still Obstructing Judicial Nominations

In recent weeks, Senate Republicans have found diverse ways to escalate their obstruction of judicial nominations.
PFAW

Escalated GOP Obstruction Provokes Talk of Committee Changes

Judiciary Committee chairman Patrick Leahy may reform his "blue slip" policy, which Republicans have abused to torpedo qualified judicial nominees.
PFAW

Senate GOP Living Up to Right Wing Vow to be a "Resistance Movement"

With this week's escalated obstruction of judicial nominees, the Senate GOP is acting more like a "resistance movement" than a responsible political party.
PFAW

Erik Rush: Obama Might Be On Drugs

WorldNetDaily’s Erik Rush, who last year called for the imprisonment of journalists for their “treasonous collusion” with President Obama, has recently been urging the media to “expose” Obama’s crimes, such as his plot to nuke America.

GOP Blocks Judiciary Committee From Even Meeting

The Senate GOP has escalated their campaign of obstruction to prevent the Judiciary Committee from even meeting.
PFAW

PFAW Praises Senate's Confirmation of 'Remarkable Nominee' Nina Pillard to DC Circuit

Bringing with her an outstanding record of public service, Pillard is one of three nominees to the court whom Republicans had been blocking from yes-or-no votes, leading the Senate to change the rules of the filibuster.

Roberts Court Leaves Workers and Employers Hanging

A case dismissal leaves intact a damaging lower court opinion whose questionable validity prompted the dismissal.
PFAW Foundation

PFAW Applauds Senate Progress on DC Circuit Confirmations

WASHINGTON – The Senate today voted to confirm Patricia Millett to the U.S. Court of Appeals for the District of Columbia Circuit. Millett is the first of President Obama’s three nominees to the court to receive a yes-or-no vote following the change in Senate filibuster rules in response to unprecedented Republican obstruction.

Marge Baker, executive vice president of People For the American Way, responded with the following statement:

“Finally, we are seeing progress in filling the three vacancies on the D.C. Circuit. There is no doubt that Patricia Millett and the other two nominees to this court -- Nina Pillard and Robert Wilkins -- are eminently qualified. The Republican opposition to these nominees has not been about their merits, but simply about keeping the president from filling these seats with any nominees. Millett will fill a seat that has been vacant since Chief Justice John Roberts was elevated to the Supreme Court in 2005. It’s about time this blockade was broken.

“We look forward to the Senate’s prompt confirmation of Pillard and Wilkins as well. Relentless Republican obstruction has for too long been crippling our federal courts. Confirming these nominees will be an important step toward getting the Senate, and our courts, working again.”


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McConnell to Participate in Recess Appointments Case

The Roberts Court will let the GOP leader participate in oral arguments in a constitutional case that his party's obstruction engendered.
PFAW

Tony Perkins Claims Obama Judicial Picks Are 'To the Left of Hugo Chavez'

Last month, Senate Democrats were forced to change the rules of the filibuster after Republicans vowed to block all three of President Obama’s nominees to the D.C. Circuit Court of Appeals despite the fact that they had no problem with the nominees themselves.

But in the alternate universe of the Family Research Council’s Tony Perkins,  when it comes to judicial nominations, “Senate Republicans have rarely displayed political courage stopping only a handful of nominees – nominees that ideologically would have been to the left of Hugo Chavez.”

Perkins said in his radio address today that the president’s nominations have in fact violated God’s “specific guidance on the selection of judges.”

The now majority leader pushed the nuclear option button effectively silencing the Senate minority and all but guaranteeing the president's nominees will be confirmed. Trust me; Senate Republicans have rarely displayed political courage, stopping only a handful of nominees -- nominees that ideologically would have been to the left of Hugo Chavez. The President is now free to pack the courts with ideologues that will both advance and protect his socialist policies. There is a reason that God gave specific guidance in the selection of judges. Few things will ruin a society quicker than unqualified, activist judges.

Looking through a list of Obama judicial nominees delayed or blocked by the GOP, it’s hard to find any who resemble the late Venezuelan president, but the FRC’s perception of these things tends to be skewed. After all, the group attacked both of the women in President Obama’s slate of nominees to the DC Circuit for being too “feminist,” one because she successfully fought for the Family and Medical Leave Act, and one because she supports having more than one woman on the Supreme Court.
 

Sekulow Admits He Has No Problem With The DC Circuit Nominees He Opposes

On the 700 Club today, Pat Robertson got to talking with the American Center for Law and Justice’s Jay Sekulow about President Obama’s three nominees to the D.C. Circuit Court. Although Robertson was concerned that there might be a “feminist”among them, Sekulow said he had no problem with the nominees themselves and instead repeated the GOP’s flimsy argument that President Obama’s nominating people to judicial vacancies constitutes “court-packing.”

Sekulow went out of his way to sing the praises of one of the three nominees, Patricia Millett, whom he called “a very bright lawyer,” but said the nominees’ qualifications are “not the question. The question is are these judges needed?”

Sekulow – like many of his allies in the Senate GOP – might want to check his own record before claiming that President Obama’s filling the D.C. Circuit’s vacant 9th, 10th, and 11th seats amounts to “court packing.” Under President Bush, Sekulow advocated for nominees to the very same seats: He boasted about “working aggressively” to confirm Janice Rogers Brown to the court’s 10th seat in 2005, supported Thomas Griffith’s nomination to the court’s 11th seat the same year, and demanded a vote on Brett Kavanaugh to the 10th seat in 2006.

Despite Sekulow’s vague claim that “There’s a real question as to the workload of these courts that are at an all-time low in the last ten or fifteen years,” the George W. Bush nominee who now runs the official body that recommends adding and subtracting federal judgeships has said the D.C. Circuit’s workload has remained “relatively steady” over that time.

Sekulow may also remember that he lobbied in 2005 to change the Senate’s filibuster rules in response to Senate Democrats’ blocking of a handful of extreme Bush nominees, saying that judicial nominees are “entitled...under the Constitution” to an up-or-down Senate vote.

Although he’s happy to rail against President Obama’s temerity in nominating qualified, unobjectionable judges to judicial vacancies, Sekulow signaled to Robertson that he would expect a Republican president to do the same, but to fill the vacancies with out-of-the-mainstream judges.

“What’s good for the goose is good for the gander,” he said of the Senate’s recent rules change. “And it means what’s going to happen here is when the Republicans are back in control -- which will happen one day, in the Senate, in the White House – look out on who’s going to be appointed. There should be no holds barred on these judicial appointments.”

 

FRC Attacks Judicial Nominee For Saying There Should Be Women On The Supreme Court

The Family Research Council’s attempts to paint President Obama’s female nominees to the D.C. Circuit Court of Appeals as “radical feminists” aren’t going so well.

First, the FRC attacked Nina Pillard for quoting something the late Chief Justice Rehnquist wrote about the importance of the Family and Medical Leave Act.

Now, the FRC seems to think it’s found a winning argument against Patricia Millett, the other woman in the slate of three D.C. Circuit nominees: She thinks there should be women on the Supreme Court.

In his daily email on Friday, FRC’s Tony Perkins wrote:

As it stands right now, the D.C. Circuit is evenly divided between Democrat and Republican appointed judges -- but that's about to change. Using the nuclear option, the Senate moved forward with reconsidering Patricia Millett, the first of three previously blocked nominees the President will be employing to pack the court in his favor. Millett has shown an activist tendency in how she views the court, believing it's more important it look a certain way than judge a certain way.

When President Bush nominated Samuel Alito to replace Justice Sandra Day O'Connor, Millett bemoaned that O'Connor wasn't being replaced by another woman, as if gender impacts who's most qualified to apply the Constitution to the facts in a case or that our highest court should be seen as a representative body. She sees the redefinition of marriage turning on her own definition of fairness and not the law.

FRC seems to have picked up this line of attack from a talking points document put together by the right-wing Judicial Action Group, which claims that Millett's comment in a 2009 interview that “there was a lot of upset over the failure to put a woman on to replace Justice Sandra Day O’Connor” shows that she would have a poor "judicial temperament.”

Yes, this is actually the argument that FRC is using against an accomplished woman’s judicial nomination in 2013.

Here’s what Millett actually said, in a 2009 interview about whom President Obama might choose to replace Justice David Souter on the Supreme Court. At the time, there was just one woman on the court and Millett stressed that there were “many qualified women” who would make President Obama’s short-list, even if gender was not considered:

There was a lot of upset over the failure to put a woman on to replace Justice Sandra Day O’Connor and…it would be extraordinary to have no women on the Supreme Court in this day and age. But even to only have one is, I think, a sorry statement about the appointment process thus far, and where it’s gotten in the last eight years.

So, I think the pressure to have a Supreme Court that looks in many ways – and gender is just one way – that is reflective of the public it serves, would require that a woman gets serious consideration. And there’s no doubt that there are many, many qualified women who – entirely apart from their gender, if nobody even considers about their gender –would be short-listed for the Supreme Court in any event, so it makes that easy.

By the way, in case you were wondering about FRC’s claim that Millett “sees the redefinition of marriage turning on her own definition of fairness and not the law,” that also comes from JAG's talking points. JAG points to an interview Millett gave previewing the Supreme Court’s hearing of the DOMA case, in which she referred to the question before the Court – whether DOMA’s unequal treatment of same-sex and opposite-sex marriage’s violated the Fifth Amendment’s due process clause – as the “fundamental fairness question before the Court.” That is, she was accurately describing the issue the Court was asked to consider; she never implies that the issue is “turning on her own definition of fairness and not the law.”

Senators Use PFAW Chart to Show Unprecedented Nature of GOP Obstruction

In their press conference following yesterday’s vote to change the Senate rules on filibusters, Democratic senators used a chart provided by PFAW to outline the extremity and unprecedented nature of the GOP’s obstruction of President Obama’s nominees.

chart-schumer

chart-Reid

Photos by J. Scott Applewhite/Associated Press via The Washington Post

PFAW

PFAW: After Rules Change, It's Time To Get The Senate Working Again

Republicans’ abuse of Senate rules during this administration has been astounding. It’s now time for the Senate to get on with the business of governing after spending far too long bogged down with reckless GOP obstruction.

The Senate GOP's Unprecedented Obstruction In Five Charts

Senate Democrats are looking increasingly serious about the possibility of changing the Senate rules to permit a 51-vote majority to end debate on nominees to the executive branch and lower federal courts – the so-called “nuclear option.” The move would come after Senate Republicans abused the filibuster to block votes on all three of President Obama’s nominees to fill vacancies on the U.S. Court of Appeals for the District of Columbia Circuit.

The D.C. Circuit nominees are among 17 federal judicial nominees currently waiting for Senate floor votes. Thirteen of these have been waiting for three weeks or longer; two have been waiting for over 100 days.

And the blanket filibuster of D.C. Circuit nominees is just the latest in the GOP’s onslaught of unprecedented obstruction under President Obama. Here are four charts showing just how far Republican obstruction has gone in the Obama administration.

Failed to confirm one-quarter of President Obama’s judicial nominees.

At this point in President Bush’s term, the Senate had confirmed 91 percent of his nominees to the lower federal courts. As of today, the Senate has confirmed just 76 percent of President Obama’s nominees. Those left out include the 17 nominees still waiting patiently for yes-or-no confirmation votes, as well as many nominees who have been forced to withdraw their nominations after meeting a wall of GOP obstruction. Unquestionably qualified nominees forced to withdraw their names include D.C. Circuit nominee Caitlin Halligan, Ninth Circuit nominee Goodwin Liu and Nevada District Court nominee Elissa Cadish.

The unconfirmed 26 percent also includes nominees who have met with Republican obstruction before even getting a hearing from the Senate Judiciary Committee. Because committee chairman Patrick Leahy won’t schedule a hearing on a nominee until both of that nominee’s home-state senators return “blue slips” signaling their approval for starting the process, Republicans can hold up the confirmation process before it even starts simply by refusing to return a “blue slip.” One example is Georgia senators Saxby Chambliss and Johnny Isakson’s year-and-a-half-long (and counting) blockade of Eleventh Circuit nominee Jill Pryor, whom they previously found qualified for a district court judgeship.

Stonewalled the D.C. Circuit.

When President Obama nominated three qualified people to the three vacancies on the U.S. Court of Appeals for the D.C. Circuit, Senate Republicans put up a coordinated front of righteous indignation, accusing the president of trying to “pack” the court to “rubber-stamp” his agenda. This act was somewhat hard to believe coming from a party that less than a decade ago successfully pushed to confirm George W. Bush’s nominees to the very same seats. The cries of “court-packing” were also a little bit undermined by the fact that Senate Republicans had allowed just one of President Obama’s nominees to be confirmed to the court, in contrast to four of Bush’s nominees and eight of Reagan’s.

It all made one believe that maybe the goal was to keep the influential court dominated by conservative Republican appointees.

Forced Obama's judicial nominees to wait over twice as long for confirmation votes as Bush’s nominees did.

Senate Republicans have forced even the nominees whom they ultimately confirm to wait weeks or even months just for up-or-down confirmation vote. Since the Senate requires unanimous consent from its members to hold a vote, a single senator can block a vote indefinitely until he is forced to give up or he runs up against a cloture vote. Under President Obama, Senate Minority Leader Mitch McConnell has made extraordinary use of these quiet filibusters, sometimes blocking votes on judicial nominees for months, even when (as is the case the overwhelming majority of the time) no Republicans actually oppose the nominees in question.

One example of this was Robert Bacharach of Oklahoma, nominated to the Tenth Circuit Court of Appeals, who was filibustered for nearly nine months despite the fact that both of his conservative home-state senators said they supported him. When Republicans finally allowed Bacharach’s nomination to come to a vote, he was confirmed unanimously.

President Obama’s confirmed nominees to the lower courts have been forced to wait an average of 107 days between approval by the Senate Judiciary Committee and a confirmation vote on the Senate floor. At this point in George W. Bush's presidency, the average wait for his nominees was just 43 days. This escalation has been especially pronounced among district court nominees, who have historically been quickly approved for trial court positions. President Bush’s district court nominees were confirmed in an average of 34 days. Under President Obama, their average wait has nearly tripled to 100 days.

Caused a vacancy crisis on the federal courts.

Senate Republicans often claim the Senate is doing a great job confirming judicial nominees this year. But according to a PFAW fact sheet [pdf], “Since the start of the 113th Congress in January 2013, the confirmation rate has failed to keep up with the number of vacancies,” leading to more than one in ten seats on the federal courts being or soon to become vacant.

Since the start of this Congress, the number of federal judicial seats that are or will soon be vacant has risen from 90 to 110, an increase of more than 20 percent. The number of judicial emergencies – vacancies that have caused courts to face extraordinary backlogs in cases -- has risen from 27 to 38, an increase of 40 percent.

The Brennan Center also documents the huge surge in federal district court vacancies and judicial emergencies since the start of President Obama's term.

…and it’s not just judges.

Republicans have filibustered more of President Obama’s executive branch nominees than were filibustered under all other presidents combined. From 1949 through the end of 2008, the Senate held cloture votes to end filibusters of 20 executive branch nominees. So far in the Obama administration, the Senate has held cloture votes on 27 executive branch nominees. That means the Senate GOP is on pace to filibuster over twice as many of President Obama’s executive branch nominees as the total number filibustered under all previous presidents combined.

Among President Obama’s executive branch nominees who have faced unsuccessful cloture votes is Rep. Mel Watt, nominated to head the Federal Housing Finance Agency, who became the first sitting member of Congress to be blocked from an administrative position since before the Civil War.

PFAW Statement on Republican Filibuster of Robert Wilkins

WASHINGTON – The Senate today failed to overcome a Republican filibuster of the nomination of Judge Robert Wilkins to the U.S. Court of Appeals for the D.C. Circuit. Only two Republican senators – Susan Collins of Maine and Lisa Murkowski of Alaska – voted for cloture on Wilkins’ nomination.

Republicans are also filibustering President Obama’s two other nominees to the court, Nina Pillard and Patricia Millett.

The Senate unanimously confirmed Wilkins to his current post on the U.S. District Court for the District of Columbia in 2010.

Marge Baker, Executive Vice President of People For the American Way, said:

“Just three years ago, Senate Republicans found Robert Wilkins perfectly qualified to be a federal judge. Now, they’re filibustering his nomination to the D.C. Circuit simply because they don’t want President Obama to be able to fill that court’s vacancies.

“This is the latest example of Republicans in Congress attempting to circumvent laws they don’t like simply by obstructing the workings of government. They shut down the government in an attempt to nullify the health care law. They routinely filibuster nominees to executive agencies and departments that they don’t want to function. And now they’re going after judicial nominees simply because they don’t like the result of last year’s presidential election.

“This is unacceptable. These nominees are not going away. I hope that when they have a chance to vote again on these three nominations, reasonable Republican senators will follow the lead of Sens. Collins and Murkowski and allow yes-or-no votes.”

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