Fair and Just Courts

The Senate Could Cut Judicial Nominations Backlog in Five Minutes…or Five Weeks

On January 13, the Senate confirmed Judge Robert Wilkins to sit on the U.S. Court of Appeals for the D.C. Circuit. So far, despite a growing backlog of judicial nominees, he is the only judge to have been confirmed this year.

There are currently 96 vacancies in federal courts across the country. Thirty-nine of them have been officially designated “judicial emergencies” by the Administrative Office of U.S. Courts, indicating that there are too few judges available to handle the court’s workload. This isn’t a built-in feature of the judicial system. In fact, the Senate could cut the judicial vacancy rate by one third today.

There are 32 federal judicial nominees who have been approved by the Judiciary Committee and are waiting for Senate confirmation votes – enough nominees to fill one-third of the country’s judicial vacancies and reduce the number of judicial emergencies by a quarter. All but three nominees cleared the Judiciary Committee with strong bipartisan support, most unanimously. The Senate could confirm all 32 in an afternoon if Republicans would agree to hold simple yes-or-no confirmation votes on their nominations. They could even confirm all 32 in less than five minutes by holding a unanimous consent vote.

But Senate Republicans still seem to be uninterested in confirming nominees to carry out the business of the nation’s courts, even in the many cases where nominees have been recommended and supported by Republican senators.

Since the Senate was forced to change the rules of the filibuster in response to Republican intransigence, the GOP has retaliated by obstructing nominations in other ways. One of these has been demanding that each confirmation vote take the maximum amount of time possible: Senate rules allow for “post-cloture debate” after a filibuster has been broken – 30 hours of floor time for appeals court nominees and two hours for district court nominees. If Republicans forced the Senate to take the  maximum amount of time on all 32 nominees currently waiting for votes, it would take the Senate 204 hours to clear the backlog.

Those 204 hours would add up to five weeks of full-time work: five weeks in which the Senate wouldn’t be able to do anything else – not immigration reform, not a debt ceiling deal, not an update to the Voting Rights Act.

The Senate could use five weeks of its time this year to confirm judicial nominees. Or, Senate Republicans could agree to confirm all 32 nominees in five minutes, cut the number of judicial vacancies by a third, and move on to other business.

PFAW has launched a petition to urge Senators to address the judicial nominations crisis and stop the obstruction of judicial nominees .

PFAW

Liberty Counsel: Obama 'Destroying The Judiciary' With Black, 'Practicing Homosexual' Judicial Nominee

This week, President Obama nominated five people to federal judgeships in Florida and New Jersey. Three of these nominees are already judges; two are accomplished attorneys. But what is more relevant to the right-wing Liberty Counsel is that, according to the American Family Association’s OneNewsNow, “among the nominees are four African Americans, one of them homosexual.” (That's not actually true: one of the nominees is African American, one is Latino, and three are white).

Liberty Counsel head Mat Staver told OneNewsNow today that these judicial picks show “ideological bankruptcy” on the part of a president who is “destroying the judiciary.”

"So he gets a black man, who is a practicing homosexual, and now he wants to put this individual in an appointment for life on the federal bench," Staver lamented, referring apparently to Darrin P. Gayes, a state circuit judge in Florida who Obama nominated to a federal district court.

At no point in the article does Staver or OneNewsNow touch on the nominee’s qualifications, other than to note vaguely that “all five nominees are considered liberals.”

Among the nominees are four African Americans, one of them homosexual, and the final one is white.

Mat Staver, who heads Liberty Counsel, tells OneNewsNow the president is reaching out to two communities.

"So he gets a black man, who is a practicing homosexual, and now he wants to put this individual in an appointment for life on the federal bench," Staver advises.

He refers to the situation as "ideological bankruptcy."

Why?

President Obama is "destroying the judiciary because, when he leaves office in 2016, these judges will be around for 20 to 40 years," says the Liberty Counsel attorney. "That is going to be a bad legacy that Obama will leave behind that we'll all have to deal with in the aftermath."

Earlier this year, Florida Sen. Marco Rubio succeeded in torpedoing the nomination of William Thomas, a Florida state judge who was also openly gay and African-American. Rubio also blocked another African-American nominee, Brian Davis, for months before local activists pressured him to let the nomination go forward.

While the GOP Fiddles, Judicial Emergencies Mount

A second emergency has been declared in Michigan, where four qualified nominees should have been confirmed last year.
PFAW

GOP-Created Nominees Bottleneck Grows

GOP refusal to allow any confirmation votes may force the Senate to devote weeks in needless "post-cloture debate."
PFAW

VT and VA Senators Move Quickly to Fill Judicial Vacancies

Senators who timely recommend judicial nominees to the White House help America's courts function effectively.
PFAW Foundation

Wisconsin Marriage Equality Lawsuit and the Judicial Vacancy Crisis

In the Western District of Wisconsin, one of the two active federal judgeships has been vacant for five years.
PFAW

Rubio Unconvincingly Explains Why He Blocked Openly Gay African-American Judicial Nominee

Earlier this month, the White House returned to the Senate 54 federal judicial nominees who Senate Republicans had refused to vote on in the previous year. But one nominee was conspicuously absent from that list: Judge William Thomas, a Florida state judge who had been nominated to sit on a federal trial court.

At first, Thomas’ nomination seemed like a slam dunk: He is an experienced, respected judge who was nominated in 2012 with the support of both of Florida’s senators, Democrat Bill Nelson and Republican Marco Rubio. He also would have been the first openly gay black man to sit on the federal bench.

Then, mysteriously, Rubio changed his mind. Taking advantage of a Senate Judiciary Committee policy that allows any senator to block a committee hearing on any nominee from his or her home state, Rubio unilaterally refused to allow a hearing on Thomas. For months, the senator refused to explain why he was blocking Thomas’ nomination, until finally this summer a spokesperson cited “questions about [the nominee’s] judicial temperament and his willingness to impose appropriate criminal sentences.”

Rubio’s office provided two examples of instances in which they believed that Thomas didn’t impose “appropriate criminal sentences.” In both cases, Thomas imposed the highest sentence sought by the prosecution; in both cases, prosecutors praised his handling of the trials. Rubio's staff also claimed that in one of those cases, a grisly murder trial, Thomas “broke down in tears” when sentencing the defendant to death; news reports make clear that the judge's tears came when he was describing the brutal crime. As Chris Hayes put it, none of these complaints “pass the smell test.”

Now, finally, Rubio himself has gone on the record for the first time about why he blocked Thomas’ nomination. In an interview with Michael Putney, political reporter for the Miami-area Local 10 news, Rubio, looking visibly uncomfortable, repeats his office’s talking points about the two criminal cases they allege Judge Thomas imposed insufficiently harsh sentences in. “We are looking for judges that can accurately apply the law, particularly at the federal level,” Rubio said, never quite explaining how Thomas failed to do that.

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This isn’t the first time that Rubio has blocked a Florida judicial nominee for less than convincing reasons. Rubio similarly changed his mind about Florida nominee Brian Davis – who is also African-American – at the behest of Sen. Chuck Grassley . Under pressure from local activists, Rubio eventually changed his mind again and allowed Davis’ nomination to go forward.

As Hayes said, it seems like the most likely explanation is that Judge Thomas was merely an “innocent bystander” in Rubio’s desperate race to win back the right-wing support he lost during his short-lived advocacy for immigration reform – an effort that so far isn’t panning out so well.

The Wrong Way to Address the Backlog of Pending Nominations

Blocking committee votes is hardly the most cooperative way to prevent a buildup of nominees waiting for a floor vote.
PFAW

Windsor's Ripples of Equality

Citing Windsor, a 9th Circuit panel rules that government classifications based on sexual orientation are subject to heightened scrutiny.
PFAW Foundation

Report on Judge Cebull Shows Why Courts Matter

When federal judges hear people's cases and decide their rights, it has an enormous impact on their lives.
PFAW

The Senate Could Immediately Reduce the Vacancy Rate by a Third

The Senate could confirm 29 fully vetted judicial nominees this week, if only Republicans would allow it.
PFAW

Sen. Burr Invents New Rule to Hide Obstruction of NC Judicial Nominee

Burr's current refusal to publicly comment on a pending judicial nominee stands in contrast to his practice for previous nominees.
PFAW

PFAW Statement on Senate Confirmation of Robert Wilkins to DC Circuit

WASHINGTON – The Senate today confirmed Judge Robert Wilkins to the U.S. Court of Appeals for the District of Columbia Circuit. Wilkins was one of three nominees blocked for months by Senate Republicans. The GOP admitted that they would block any and all of President Obama’s nominees to fill the three vacancies on this critically important court no matter who they were, which provoked the Senate to change its filibuster rules. Wilkins’ fellow nominees Patricia Millett and Nina Pillard were confirmed late last year.

Marge Baker, executive vice president of People For the American Way, responded to the vote:

“Today’s vote sends a supremely qualified and capable nominee to the nation’s second most influential court. It also puts an end to Senate Republicans’ dishonest effort to keep President Obama from filling vacancies on the D.C. Circuit, an effort that was destructive and transparently political.

“Now that the D.C. Circuit’s seats are full, it can get on with its important work for the American people. And just as importantly, if the Senate can put petty partisan fights behind it, it can get on with doing the American people's work as well, including filling the other long-vacant federal court seats across the country.”

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Republicans Obstruct Judicial Nominees They Supported Last Year

Re-nominated judicial nominees face re-obstruction from Judiciary Committee Republicans.
PFAW

Rubio Should Not Have the Last Word on Florida Nominee

Why did Marco Rubio unfairly attack qualified nominee William Thomas while denying him a chance to correct the record? (VIDEO)
PFAW

PFAW Statement on White House Re-Nomination of 54 Judicial Nominees

WASHINGTON – President Obama today re-nominated 54 federal judicial nominees whose nominations had been sent back to the White House at the end of last year due to Republican obstruction. At the end of last year, Senate Republicans refused to hold over the president’s nominees, sending all but one – D.C. Circuit nominee Robert Wilkins – back to the White House.

Disappointingly, one nominee who had been stalled by GOP obstruction was not renominated: William Thomas of Florida, whom Sen. Marco Rubio singlehandedly blocked from a hearing for over a year.

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

It is encouraging that the White House has taken the earliest possible opportunity to put these 54 nominees back on the path to Senate confirmation. This is an especially urgent matter given that 22 of these nominees would fill officially-designated judicial emergencies.

It is stunning that this many nominees were been sent back to the president at the end of the year. Most of those who are now starting the confirmation process all over again could have easily received confirmation votes last year if not for Republican obstruction. Nine were waiting for Senate votes when their nominations were sent back and 24 were stalled in the Judiciary Committee by Republican senators abusing the committee’s rules and practices.

While we are pleased that the White House is working for the expeditious confirmation of these 54 nominees, it is disappointing that Judge William Thomas of Florida has been left off the list. Judge Thomas is an eminently qualified nominee and would make history as the first openly gay African-American man to become a federal judge. Yet a campaign of obstruction from Sen. Marco Rubio has kept Judge Thomas from even receiving a hearing in the Judiciary Committee, and has now succeeded in torpedoing his nomination entirely.

The president has also renominated a controversial slate of nominees from Georgia. In a state that is nearly one-third African American, just one of the president’s six nominees is a person of color, and questions have been raised about some of the nominees’ records on voting and civil rights.

Republicans have indicated that they will fight the president’s nominees whoever they are; that makes it all the more important that the best possible nominees are put forward.
 

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Vander Plaats: Marriage Equality Unconstitutional Because It's 'Against The Law of Nature'

Last year, Religious Right activist and possible 2014 Iowa Republican Senate candidate Bob Vander Plaats claimed that the Supreme Court’s DOMA ruling had provoked a “constitutional crisis” because it defied “the law of nature and the law of nature’s God.”

In an interview on the Steve Deace show last week, Vander Plaats elaborated on this constitutional analysis, claiming that a Utah federal judge’s ruling legalizing marriage equality was wrong because same-sex marriage “goes against the law of nature” and therefore is “against the Constitution.”

Vander Plaats also encouraged Utah Gov. Gary Herbert to simply ignore the court’s ruling and issue an executive order staying the decision until it’s put to a popular vote. 

He warned guest host Jen Green that the Utah ruling was the first step on a slippery slope to tyranny, showing the need to put judges “in their place” as he did in Iowa in 2010.

Vander Plaats: First of all, Justice Shelby, there’s a lot of issues with his ruling. Number one is, you had the people of Utah already amend the Constitution to what marriage is. And you’re supposed to uphold the Constitution, not redefine the Constitution. So, that’s number one.

Two is, there is no research on it, there is no data on it. Why? Because it never existed before. So all there is is speculation. But what we know is it goes against the law of nature, and the law of nature’s God, which means, again, it’s against the Constitution.

My suggestion to Gov. Herbert: Don’t overcomplicate this. Don’t over-study this or analyze this. Lead on this. Issue an executive order from the governor’s office that places a stay on this judge’s decision until the people of Utah resolve this, either through the legislature – the people’s representatives – or through another vote, if you need to go through another vote. But you don’t allow an activist judge to have his way to inflict same-sex marriage on the entire state of Utah.

It is We the People who are the final arbitrators of this deal. They gave us the power of the king. The governor is the executor. He’s got the executive branch, he’s the one who gets to enforce or not enforce. By him staying silent, he’s really enforcing this judge’s opinion. That’s why he needs to step up and lead, and what I’d say, issue that executive order.

And for the Lead or Get Out of the Way members and audience, and especially those in Utah, what really has to concern you here is that if they will do this to the institution of marriage, they won’t even blink an eye when they take your private property, tell you how to educate your kids. If you really want to have tyranny, keep allowing activist judges to keep activism alive. You need to put them in their place. That’s what I’d encourage Gov. Herbert to do.

Green: You will be made to care.

Vander Plaats: You will be made to care. But Gov. Herbert could make that judge made to care. Just like in Iowa, we made the judges, that they should care about what they’re doing.

Scalia Predicted It: Equal Rights Means Equal Rights

"It has never yet been discovered how to make a man unknow his knowledge, or unthink his thoughts."
--Tom Paine, The Rights of Man

"A house divided against itself cannot stand. I believe this government cannot endure, permanently, half slave and half free. I do not expect the Union to be dissolved--I do not expect the house to fall--but I do expect it will cease to be divided. It will become all one thing or all the other."
--Abraham Lincoln in his "House Divided Speech"

United States District Court Judge Robert J. Shelby's masterful December 20, 2013 decision striking down Utah's ban on same-sex marriage is headed to the Supreme Court. The Tenth Circuit Court of Appeals, which takes cases from Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah, refused to stay the decision and nearly 1,000 jubilant gay and lesbian couples have married in the state in just over a week.

The outbreak of marriage equality in conservative Utah is another huge and momentous crack in the crumbling wall of marriage discrimination against gay Americans. So the Attorney General of the state is preparing a last-ditch appeal to the Supreme Court to turn back the mounting tide of equal rights and freedom.

The state's petition will first reach Associate Justice Sonia Sotomayor, who oversees cases in this group of states. She will be able to either decide the petition herself or refer it to the full Court. If she rejects the petition, as she is likely to do, Utah can appeal to the full Court.

Those people who thought the Court could buy some time after its electrifying 5-4 decision in June striking down a key part of the federal Defense of Marriage Act misunderstand the logic of constitutional freedom. The phony alibis for marriage discrimination have fallen away, and the Court's decision in United States v. Windsor leaves no doubt: gay people have an equal right to marry in the United States of America and the laws standing in the way impose irrational discrimination.

One delicious irony about Judge Shelby's decision is that he freely quoted Justice Antonin Scalia's doleful dissenting opinion in the Windsor case, which repeatedly predicted -- just as Scalia has been warning all along in other gay rights cases, like Lawrence v. Texas (2003) -- that the Court's decision to defend the equal rights of gay Americans would inescapably lead to the downfall of marriage discrimination. Judge Shelby wrote: "The court agrees with Justice Scalia's interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law."

There should be nothing surprising about either Justice Scalia's gloomy reactionary lament in Windsor or the fact that his words are coming back to haunt him now. As we pointed out several months ago in this PFAW Report, Equal Protection or 'Social Tradition': The Supreme Court's Test in the Marriage Cases," Justice Scalia chastised Justice O'Connor back in 2003 for voting in Lawrence v. Texas to strike down anti-sodomy laws because they do nothing other than legislate "moral disapproval" of other people's private and consenting conduct. Scalia angrily observed that "'preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples." In other words, if we can't put gay people in jail because we disapprove of their relationships, how will we stop them from marrying? As always, Justice Scalia's intellectual rigor and candor, from the other side of the barricades, have proven to have great predictive power about the unfolding of the law.

Still, it is not entirely clear what will happen on the Court in response to Utah. It requires four Justices to vote to grant a Cert petition and hear a case. Undoubtedly the hard Right of the Court -- Justices Scalia, Clarence Thomas, and Samuel Alito -- will feel Utah's pain intensely, and Chief Justice John Roberts is likely to want to join them, although he may count the votes and decide not to test Justice Anthony Kennedy's willingness to vote with the liberals to wipe away the stain of marriage discrimination.

After all, Justice Kennedy's reputation as a thoughtful figure on the Court has essentially been made by authoring the majority opinion in a series of brilliant decisions enunciating the equal rights of gay Americans: Romer v. Evans (1996), Lawrence v. Texas (2003), and most recently United States v. Windsor (2013). In Windsor, Justice Kennedy wrote that the "principal purpose" of the Defense of Marriage Act was "to impose inequality" and to put gay people in "a second-tier marriage," locking them out of hundreds of valuable federal benefits and rights. Significantly, he wrote that this legislation not only "demeans the couple" but "humiliates tens of thousands of children now being raised by same-sex couples." The table may now be set for another 5-4 gay rights decision that makes Justice Kennedy an historic figure.

If Justice Kennedy and the moderates can indeed count to five on the big question, one or more of them might even provide a vote for cert, on the theory that the country has hit a tipping point, with marriage now available to gay people in 17 states and the District of Columbia and public opinion racing ahead to full equality. It may be time to do what the Court did in Loving v. Virginia (1967), when it told the truth about "white supremacy" and wiped out the anti-miscegenation laws that made it a crime for Richard and Mildred Loving to marry.

Still, 33 states are blocking the courthouse door for gays seeking to wed and Justice Kennedy did sprinkle lots of pro-states' rights language in his dissenting opinion in Hollingsworth v. Perry (2013), Windsor's companion decision which punted on the merits of marriage discrimination. So the wheel is still in spin during this go-round.

But, as we stated in the "Equal Protection or 'Social Tradition'" Report, the overall dynamic of freedom and equality has been unleashed for our gay and lesbian citizens, and it will be nearly impossible to rewind the tape. On national marriage equality, it is just a matter of when -- not if. There is no way to get this movement or intelligent jurists to unthink their thoughts about fundamental rights, and ultimately, a country divided over a basic right like marriage for millions of people, can't stand. All signs point to equal rights and liberties for gay people in America.

This article originally appeared on The Huffington Post.

PFAW
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