Fair and Just Courts

Ponnuru Uses Discredited Arguments on DC Circuit

The simple act of making nominations to existing judicial vacancies isn't court-packing, no matter how many times you say it is.
PFAW

Iowa Group Threatens Recall Campaign Against Judge In Abortion Rights Case

The Iowa Religious Right group that successfully campaigned to unseat three state supreme court justices who ruled in favor of marriage equality has set its sights on a new target: a judge who granted a stay in an influential abortion rights case.

The Family Leader, run by prominent conservative activist Bob Vander Plaats, gained national attention in 2010 when it ran a successful campaign, with plenty of funding from national Religious Right groups, to oust three state supreme court justices in retention elections after the court ruled unanimously to legalize marriage equality in the state. The group tried its luck against another justice last year, but the tide had turned enough that the judge held on to his seat.

Now, the group is taking aim at a District Judge Karen Romano, who ruled this week that Planned Parenthood could continue to use video conferencing to guide women through early-term abortions using abortion-inducing drugs – drugs that are widely considered safe to take at home during the early weeks of a pregnancy – while a ban on the practice is appealed. Planned Parenthood had challenged a ruling by the Iowa Board of Medicine banning telemedicine for chemical abortion,  but for no other medical practice. Judge Romano did not rule on the merits of the case.

Vander Plaats’ group issued a statement yesterday claiming that Judge Romano had “not learned a lesson” from the 2010 election and urged voters to remember the judge’s “activism” in her 2016 retention election.

The Family Leader’s Chuck Hurley told the Des Moines Register that his group is “open” to a recall campaign against Romano but hasn’t decided yet whether to go beyond the barely-veiled threats in its press release. Hurley did take the opportunity, however, to allege that Romano was biased because she was appointed by former Gov. Tom Vilsack who “notoriously and admittedly an activist who selects judges who support his liberal viewpoints.”

Romano said Wednesday afternoon that she was not shocked by the Family Leader’s statement.

“I think in the current climate, it doesn’t really surprise me,” she said in a brief interview.

She added, “I understand that the issue the case deals with is a volatile issue.” She said she couldn’t comment any further.

Chuck Hurley, the Family Leader’s vice president, said Wednesday that the group hasn’t decided whether to mount a recall campaign against Romano. “We are definitely discussing it and are open to it,” he said.

He added that he didn’t know much about Romano’s personal views, but he knows she was appointed in 2001 by former Gov. Tom Vilsack. Hurley said Vilsack, a Democrat, was “notoriously and admittedly an activist who selects judges who support his liberal viewpoints.”

UPDATE: The president of the Iowa State Bar Association has denounced Vander Plaats' move, calling it "political bullying," and the Des Moines Register spoke out against his "not-so-subtle" threat to Romano in an editorial

UPDATE 2: After telling the Register that his group would be "open" to launching a recall campaing against Romano, Hurley followed up with the paper and "clarified" that he in fact meant "we are not launching a campaign against Judge Romano nor do we have any plans to do so at this time. We were simply pointing out that it was this kind of judicial activism by Iowa judges that led to Iowans voting out three Iowa Supreme Court judges in 2010.” 

Our Country Deserves Better than ‘Stand Your Ground’ Laws

The following is a guest post from Elder Jabari Paul, a member of People For the American Way’s African American Ministers in Action, following last week’s Senate Judiciary Subcommittee hearing on Stand Your Ground laws.

My perspective on Stand Your Ground laws (SYG) is shaped by my experience and calling as a young African American clergyman and as a native of Florida, the first state to pass this type of legislation. I believe that these laws raise important questions about the moral values of our country.

The debate around SYG comes during challenging times in America – times when the political landscape is starkly divided and mass slayings in public settings are much too frequent.  These laws have been divisive policies since the first one passed in October 2005 in Florida. Public contentiousness surrounding SYG can be traced back to the choices of many politicians to ignore the will of the majority on SYG laws and to push the agendas of powerful and moneyed interest groups, like the National Rifle Association. SYG has been a wedge issue because politicians, particularly conservatives, have supported such laws to placate their base in spite of a lack of need for these laws.

Stand Your Ground has been championed by its supporters as a type of law that is necessary to prevent crime in urban areas and to protect citizens from the violence of “thugs.” These arguments have clear racial undertones. Words like “urban” and “thug” have been used since America’s post-Reconstruction days to speak in coded language about African Americans and other minorities. SYG tramples upon the civil rights of those perceived to be a threat. The tragedy of these laws is compounded when the person attacked is killed and only their attacker has an opportunity to tell what happened.

As a Christian, minister and an African American male under 35, my views on SYG are shaped by my culture and my religious beliefs. I believe that SYG perpetuates violence in a society that already knows violence too well. Jesus Christ taught the opposite of violence – love. In His renowned “Sermon on the Mount,” Jesus said, “Ye have heard that it hath been said, an eye for an eye, and a tooth for a tooth: But I say unto you, that ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also.” In these verses, Jesus is stressing that violence should be the last form of recourse in any situation. SYG, on the other hand, justifies and can even facilitate violence.

Our country deserves better than this. The United States of America is called, and no doubt is, the greatest nation in world. It’s time for our elected officials to drastically amend or repeal Stand Your Ground laws.

PFAW

Scalia's Nightmare: Evil Foreigners Impose Marriage Equality on U.S.

In coming up with a scary hypothetical regarding the limits of congressional authority, Scalia turns to marriage equality.
PFAW Foundation

Judges Delayed, Justice Denied: PFAW's Drew Courtney Discusses the DC Circuit on MSNBC

People For the American Way Director of Communications Drew Courtney appeared on Disrupt with Karen Finney this weekend to discuss Senate Republicans’ reckless obstruction of President Obama’s nominees to the important Court of Appeals for the District of Columbia Circuit.

Watch the segment here:

PFAW

Supreme Court Won't Hear Abortion Rights Challenge

The Court won't review an Oklahoma court's ruling striking down limitations on how women can use medications to terminate early pregnancies.
PFAW Foundation

New DC Circuit Decision Shows Why GOP Wants to Block New Judges

With starkly political language, the DC Circuit rules that the ACA's contraception coverage provision violates business owners' religious liberty.
PFAW

William Rehnquist, Radical Feminist

Right-wing groups determined to paint D.C. Circuit Court of Appeals nominee Nina Pillard as a “scary,” “radical” and “militant” feminist have taken to using an unexpected weapon: a landmark women’s rights decision written by the late conservative Supreme Court Chief Justice William Rehnquist.

Ten years ago, the state of Nevada had challenged the Family and Medical Leave Act after a male state employee had tried to take his FMLA-sanctioned leave to care for his ailing wife. Pillard joined with the Bush administration to bring the case, Nevada Department of Human Resources v. Hibbs, to the Supreme Court and successfully argued that the FMLA should be upheld. 

In his majority opinion in the case, the Chief Justice Rehnquist wrote that Congress had been justified in passing the FMLA to combat what he called the “significant” problem of women facing employment discrimination because employers assumed they would have to take more time off than men to care for their families. He wrote:

Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman’s domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers’ stereotypical views about women’s commitment to work and their value as employees. Those perceptions, in turn, Congress reasoned, lead to subtle discrimination that may be difficult to detect on a case-by-case basis.

In 2011, Pillard cited this passage from Justice Rehnquist in a law review article about the need to break long-held stereotypes about women’s and men’s roles in the home and workplace:

Providing men with family leave, the Hibbs court reasoned, would help to change underlying gendered patterns of family care and thereby help to counteract “a self-fulfilling cycle of discrimination” – a cycle that “fostered employers’ stereotypical views about women’s [lack of] commitment to work and their [lesser] value as employees,” as well as “parallel stereotypes” of men’s overriding workplace commitment that routinely obstruct men’s equal access to family benefits that could encourage them to spend more time parenting. The radical implication of Hibbs is that we cannot end sex discrimination outside the home without changing our beliefs about women’s and men’s differential attachments to family care within it, and we cannot change those beliefs without actually shifting the allocation of care work within the family.

Fast forward to today, when Pillard is one of President Obama’s three nominees to fill vacancies on the influential D.C. Circuit. Right-wing groups, upset by Pillard’s success defending women’s rights in the courts -- she also wrote the legal briefs that convinced the Supreme Court to open the Virginia Military Institute to women – are now looking for any reason to keep her off the court, and have seized on Hibbs.

This summer, the Family Research Council sent out an email to its members attacking Pillard for saying that assumptions about women’s roles in the home present “a self-fulfilling cycle of discrimination” – words that were, in fact, written by Chief Justice Rehnquist. The FRC later corrected itself, but the quote was so abhorrent to the far right that it stuck.

On his Crosstalk program yesterday, VCY America host Jim Schneider repeatedly cited the quote in an interview with the National Abstinence Education Association’s Valerie Huber, claiming that Pillard had argued “that in celebrating motherhood, society is creating a ‘self-fulfilling cycle of discrimination.’” Huber, in turn, took that as evidence that Pillard is indeed a “radical feminist.” The quote has also turned up in various conservative outlets.

We have no doubt that the FRC’s original misreading and then VCY’s face-value reading of FRC’s old email were honest mistakes. But this is a revealing game of telephone. The fact that a straight-forward statement about sex discrimination written by one of the most conservative justices in recent history engenders such anger on the Right says much more about those attacking Pillard than it does about their target.

PFAW: Shameful Senate Vote on DC Circuit Shows GOP Scorched-Earth Politics At Its Worst

WASHINGTON – The Senate today failed to overcome a GOP filibuster of the nomination of 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 fill vacancies on the court; Professor Nina Pillard and Judge Robert Wilkins have both been approved by the Judiciary Committee and are awaiting floor votes. Every Republican senator except for Senators Collins and Murkowski voted to continue the filibuster of Millett’s nomination, although none presented any objection to her qualifications or character.

Immediately before rejecting cloture on Millett’s nomination, Senate Republicans also blocked the nomination of Rep. Mel Watt to head the Federal Housing Finance Agency.

The following statement can be attributed to Marge Baker, Executive Vice President, People For the American Way:

Today, we saw Republican scorched-earth politics at its worst.

Patricia Millett is an extraordinarily qualified nominee for an extremely important court, yet Senate Republicans are denying her a confirmation vote simply because she was nominated by President Obama.

The GOP’s unprincipled blockade of D.C. Circuit nominees is unprecedented, and it’s shameful. Instead of giving Patricia Millett, Nina Pillard and Robert Wilkins fair hearings and yes-or-no votes, Republicans are blocking all three just to keep President Obama from fulfilling his Constitutional obligation to fill existing vacancies on the critically important federal courts.

This is the kind of reckless tactic that led to this month’s government shutdown. Unable to win national elections, Republicans are instead attempting to legislate through obstruction. First, they put hundreds of thousands of Americans out of work and threatened to disrupt the world economy in a futile attempt to eliminate a duly enacted law. Now, they’re refusing to fill vacancies on the federal courts because they don’t like the president who’s nominating judges.

Americans see these partisan obstruction tactics for what they are. This is the kind of behavior that has sent public approval of the Republican Party into the gutter, and it is not the kind of move that Americans will forget. We will continue to fight for the confirmation of all three of these highly qualified nominees to this important court.

###

GOP Senators Continue to Pretend the Judicial Conference Doesn't Exist

Senate Republicans ignore the Judicial Conference's admonition not to compare D.C. Circuit case filings to other circuits.
PFAW

More Evidence that the 'Court Efficiency Act' Isn't So Efficient

Unable to come up with any legitimate reason to filibuster President Obama’s three nominees to the Court of Appeals for the D.C. Circuit, Senate Republicans have landed on a not-so-convincing excuse: They claim that the court has too many judges as it is and that it would be wasteful to fill its remaining vacancies.

Sen. Charles Grassley of Iowa has even gone so far as to introduce a bill that would permanently reduce the number of seats on the influential court from eleven to eight (the number of active judges currently sitting on the court), thereby preventing President Obama from placing any more nominees on the court. (The president has had one nominee confirmed to the DC Circuit, compared to four nominees under President Bush and eight under President Reagan).

Grassley’s bill would reduce the number of slots on the DC Circuit by three and “reallocate” two of those seats  to circuits that he contends need the judges more.

There are a number of gaping flaws in Grassley’s logic, the first of which is that he and his fellow Republicans were eager to fill the very same DC Circuit seats that they are now trying to eliminate back when President Bush was the one making nominations.

Then, there’s the fact that there seems to be absolutely no basis for reallocating the two D.C. Circuit seats to the Eleventh and Second circuits. The official office that evaluates the needs of federal courts and makes recommendations for adding and removing seats doesn’t include the D.C. Circuit in its recommendations because the court’s caseload is uniquely complex and difficult to compare to that of other courts…and it also hasn’t recommended that the Eleventh or Second circuits get new judges.

This was confirmed by a former Chief Judge of the Eleventh Circuit whose statement  [see p. 34 of this pdf] was submitted into the Senate record last month confirming that his former court indeed does not need new judges:

Since my appointment to the Eleventh Circuit on October 1, 1990, the judges of our court annually have voted whether or not we should ask Congress to authorize more federal judges.  Each time our court considers the topic, an overwhelming majority of our members have voted “no!” 

Even one of the co-sponsors of the court-rigging bill – Sen. Jeff Sessions – has gone on record saying that the Eleventh and Second Circuits actually don’t need new judgeships.

All of which makes one suspect that of all the goals that Sen. Grassley might have in mind with the Court Efficiency Act, the efficiency of the courts is probably not one of them.

PFAW

Judicial Expert Confirms that D.C. Circuit Caseload Has Not Fallen

The chair of the Judicial Conference's Committee on Judicial Resources debunks the GOP line about the D.C. Circuit's caseload.
PFAW

The Republican Argument For Filibustering DC Circuit Nominees Is Bogus. Here Are The Numbers To Prove It

Republicans' stated reason for threatening filibusters of the D.C. Circuit nominees is bogus.
PFAW

Fact Checker Rewrites History of GOP Obstruction of Judicial Nominees

When Democrats have filed cloture on judicial nominations, it has been a response to unprecedented GOP obstruction.
PFAW

Meet the Group Trying To Stop President Obama From Filling Vacancies on Federal Courts

Later this week, the Senate will vote on ending the Republican filibuster of Patricia Millett, the first of President Obama’s three nominees to fill vacancies on the influential US Court of Appeals for the DC Circuit. Republican senators have no beef with Millett personally (she’s a renowned appellate attorney, military spouse and black belt), but they’re still threatening to block all three nominees because, they contend, President Obama is attempting to “pack” the 11-member court by going through the constitutionally mandated process to fill its three vacancies.

Backing up this obstruction effort, one familiar outside group has again stepped up to carry Republicans’ water: the Judicial Crisis Network.

In the 2004, as the battle was heating up over confirming some of President Bush’s most far-right nominees, former Bush-Cheney religious right outreach staffer Gary Marx and former Justice Thomas clerk Wendy Long teamed up to found a group called the Judicial Confirmation Network, housed in the offices of the right-wing American Center for Law and Justice and dedicated to “working to ensure a fair appointment process of highly qualified judges and justices.”

Four years later, the Judicial Confirmation Network found itself in a bind when President Obama was elected to be the one nominating federal judges. All of a sudden, JCN lost interest in working to confirm “highly qualified judges and justices” to the bench. So, in 2010 the group changed its name to the Judicial Crisis Network and announced that its mission would heretofore be “to confront the radical legal and legislative threats facing our country” – that is, trying to prevent President Obama from filling seats on the federal courts with highly qualified judges and justices.

Today, the Judicial Crisis Network has emerged as the primary outside group working to prevent the Senate from confirming President Obama’s three nominees to fill the three vacancies on the influential US Court of Appeals for the District of Columbia Circuit. JCN is running radio ads targeting moderate senators urging them to filibuster the three nominees and has launched a snazzy website with infographics purporting to show that President Obama’s nominating qualified people to existing judicial vacancies amounts to “court packing.”

Our colleague Paul Gordon has done a thorough point-by-point takedown of JCN’s “court packing” infographics, but the bottom line is this: Like Senate Republicans who are now trying to permanently cap the DC Circuit at eight judges, JCN sang an entirely different tune when it was a Republican president was doing the nominating.

In the era when JCN was the Judicial Confirmation Network, President Bush had four nominees confirmed to the DC Circuit, bringing its total number of active judges up to 11. Meanwhile, due to Republican obstruction, President Obama has had just one nominee confirmed to the court, bringing the total number of judges on the court to eight.

JCN and Republican senators contend that the DC Circuit’s caseload is significantly lower now than it was then, meriting a reduction of the number of judges on the court. That’s simply not true [pdf]. For instance, in June 2005, when the Senate confirmed far-right Bush nominees Janice Rogers Brown and Thomas Griffith to the tenth and eleventh seats on the DC Circuit, there were 1,313 cases pending before the court. Today, as the GOP is trying to cap the court at eight judges, it is facing 1,479 pending cases.

In 2005, the Judicial Confirmation Network was reminding senators of their “obligation to bring these nominations to the floor for a fair vote.” Today, the Judicial Crisis Network is urging senators to deny floor votes to nominees in the same position.

Later today, JCN’s chief counsel Carrie Severino will be a witness at a House hearing on the DC Circuit titled “Are More Judges Always the Answer?” We can guess that Severino’s public answer to that question will be “no.” But a more forthright answer would be, “It depends who’s nominating them.”
 

Roberts Court Not Likely to Help Victims of Human Rights Abuses

Victims of Argentina's "dirty war" may be prevented from suing a corporate giant whose subsidiary collaborated in human rights abuses.
PFAW Foundation

Will the Roberts Court Choke Off Greenhouse Gas Regulations?

The Roberts Court will hear a challenge to the EPA's authority to regulate greenhouse gases from factories and power plants.
PFAW Foundation
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