Fair and Just Courts

They Tried to Break the Federal Government. Now They're Going After the Courts.

The astounding show of Republican recklessness that led to last month's government shutdown made one thing very clear. The new Republican Party -- the one ruled by the Tea Party -- isn't interested in making our government work. They want to break it.

Now, as if shutting down the government of the United States, furloughing hundreds of thousands of government employees, wasting billions of dollars and threatening to wreck America's economy wasn't enough, Republicans in Congress have set their sights on a new target: our justice system.

Yesterday, Senate Republicans took their campaign against our government to a whole new level when they blocked the nomination of Nina Pillard to the U.S. Court of Appeals for the District of Columbia Circuit, which is widely considered to be the nation's second-highest court behind the Supreme Court.

Pillard is one of President Obama's three nominees to fill vacancies on the D.C. Circuit, which is currently operating with nearly one-third of its active judgeships vacant. All three nominees have extraordinary professional qualifications. All three have support from across the ideological spectrum. Yet Senate Republicans are vowing to filibuster all three simply because they were nominated by President Obama.

One of the most basic functions of the U.S. Senate is to provide "advice and consent" to the president on his nominations to executive agencies and to the federal courts. For most of our country's history, the Senate has generally taken this constitutional order responsibly, using its power to block only nominees whom senators found unqualified or dangerously far out of the mainstream. That is, until now.

The same party that shut down the government in an attempt to nullify a duly-enacted law that it does not like is now trying to prevent a twice-elected president from filling vacancies on an important court -- a duty entrusted to him by the Constitution.

There's a reason Republican obstructionists have targeted the D.C. Circuit. The court has the last word on important federal laws and administrative rules on issues ranging from clean air regulations to workers' rights to cigarette labeling requirements to presidential recess appointments. Basically, just about any area that we regulate through our federal government is going to be affected by the D.C. Circuit. And it is currently dominated by conservative ideologues: nine of the 14 judges on the court (including "active" judges and senior judges who participate in panel decisions) were nominated by Republican presidents seeking to remake the courts in their ideological image.

Republicans want to keep it this way. President Obama has nominated five people to the court, yet Senate Republicans have allowed only one of these nominees to so much as receive a confirmation vote. By comparison, the Senate confirmed four of George W. Bush's nominees to the court and eight of Ronald Reagan's. In fact, the ninth, tenth, and eleventh seats that Republicans today demand remain vacant are ones that they ensured were filled when George W. Bush was president.

To give you an idea of just how conservative this court is as a result, just this month a George W. Bush nominee and a George H.W. Bush nominee ruled that employers who oppose birth control should be able to deny their employees access to affordable contraception through their insurance plans -- an absurd twisting of the true meaning of religious liberty. A few months ago, the court ruled that a law requiring employers to display a poster listing employees' legal rights violates the free speech rights of the employers. No, really!

Unable to win national elections, Republicans are trying to hold on to what power they still have -- and that includes control of the powerful D.C. Circuit. Just like they couldn't accept that the Affordable Care Act was the law of the land, the Tea Party won't admit that Americans chose President Obama to be the one making picks to the federal courts.

The Tea Party thinks that it has some sort of intellectual property claim on the U.S. Constitution. But sometimes I wonder if its leaders have even read it.

Cross-posted from Huffington Post.

PFAW

The Nullification Strategy: How Senate Republicans Abuse the Filibuster to Undermine the Courts, Executive Agencies, and American Voters

To: Interested Parties
From: Marge Baker, Executive Vice President, People For the American Way
Date: November 12, 2013
Re: The Nullification Strategy: How Senate Republicans Abuse the Filibuster to Undermine the Courts, Executive Agencies, and American Voters

Earlier this month, Sen. Patrick Leahy of Vermont, the Dean of the Senate and one of the most steadfast protectors of its traditions, announced that for the first time in his decades-long Senate career he was considering supporting a change to the Senate’s filibuster rules.

Leahy’s reluctant change of heart is a sign of the extent to which Senate Republicans have abused the rules of the Senate not only to oppose legislation and nominees with whom they disagree, but to change the rules of government, using obstruction to nullify laws and agencies that they lack the electoral mandate to overturn or eliminate through legitimate means.

Senate Republicans under President Obama have turned the Constitution's command of "advice and consent" into a prerogative to obstruct and nullify -- a violation of the Constitution's spirit that ignores the will of American voters and threatens to undermine the functioning of all three branches of government.

Using what Sen. Tim Kaine has called the "decapitation strategy," Senate Republicans routinely deny confirmation votes to qualified, widely respected nominees simply because the GOP wants to cripple the agency or court to which the individual was nominated.

This strategy will reach a new low today if Senate Republicans succeed in blocking an up-or-down vote on the nomination of Nina Pillard to the U.S. Court of Appeals for the District of Columbia Circuit, as they have indicated that they intend to do.

How the Nullification Strategy Works

In June, President Obama nominated three highly qualified individuals to fill the three vacancies on the D.C. Circuit Court. On Oct. 31, Republicans blocked a vote on the nomination of Patricia Millett. Today, they are expected to deny cloture on the nomination of Nina Pillard. And they have indicated that they will do the same to President Obama's third nominee to the court, Robert Wilkins.

Senate Republicans have made clear that they are blocking votes on these nominees simply because they do not want President Obama to be able to fill vacancies on this particular court. In fact, the Senate’s GOP leadership signaled their intention to stonewall all three nominees before they even knew who they would be – a clear sign that their obstruction has nothing to do with the nominees’ records or qualifications.

Similarly, Republicans blocked President Obama’s nominees to the National Labor Relations Board, preventing the agency from achieving a quorum; in so doing, they successfully sabotaged enforcement of the National Labor Relations Act without actually amending the law. They refused for a full two years to confirm a head to the Consumer Financial Protection Bureau, which prevented it from exercising some of its most important authorities; they admitted they had no problem with the nominee (Richard Cordray) but instead wanted to force Democrats to change the law and weaken the newly-created agency.

And of course, President Obama's nominee to head the Federal Housing Finance Agency, Rep. Mel Watt of North Carolina, is in the same position after Senate Republicans blocked a vote on his nomination, making him the first sitting member of Congress to be blocked from confirmation to an Administration position since before the Civil War.

Notably, a large number of the nominees who have faced politically-motivated blockades have been women and people of color. The blocked D.C. Circuit nominees are two women and an African-American man. Several months ago, Republicans blocked another woman, Caitlin Halligan, from a seat on the court, which will make Pillard the third woman this year that Republicans have blocked from the D.C. Circuit.

Why Republicans Have Targeted the D.C. Circuit

There is a reason that Senate Republicans have chosen the D.C. Circuit as an object of their obstruction: The court, which regularly reviews decisions by federal agencies on a broad range of issues important to the public at large, is currently dominated by Republican-nominated jurists who routinely undercut the ability of federal agencies to protect workers and consumers.

Although the court's eight active judges are divided evenly between Democratic and Republican nominees, five of the court’s six senior judges are Republican appointees. These senior judges sit on the three-judge panels that do most of the court’s work, and maintain a strong influence over the court. So when you draw a three-judge panel, there’s a high likelihood that it will have a conservative majority because Republican nominees outnumber Democratic ones 9-5, a nearly 2-1 ratio. In fact, 15 of the last 19 judges confirmed to the court were nominated by Republican presidents. That includes four George W. Bush nominees, three George H.W. Bush nominees, and eight Ronald Reagan nominees. By contrast, the Senate has confirmed just one of President Obama's nominees to the D.C. Circuit, Sri Srinivasan.

The conservative judges who currently dominate the D.C. Circuit have pushed an anti-regulatory, pro-corporate ideological agenda that clearly appeals to Senate Republicans. In just the past few years, Republican-nominated judges on the court have blocked EPA efforts to limit cross-state air pollution, defeated cigarette labeling requirements, and used severely flawed reasoning to declare that requiring employers to post a notice informing employees of their right to unionize violates the free speech rights of the employers. The D.C. Circuit has also aided Senate Republicans in their agenda of obstruction, voiding the president’s appointments of  NRLB Members whom the president had been forced to recess-appoint after the GOP had refused to let the agency reach a quorum.

After he voted to block Millett’s nomination, Republican Sen. Mark Kirk of Illinois admitted that preserving the DC Circuit’s rightward slant was the reason for his party’s obstruction. "We're worried about that court being a significant bastion for administrative law cases on Obamacare,” he told the Huffington Post.

President Obama's nominees to fill the three vacancies on the D.C. Circuit are all impeccably qualified. Judge Wilkins is already a federal judge, serving on the US District Court for the District of Columbia, and has an impressive background in civil rights and financial law. Professor Pillard is a widely respected attorney who has personally argued and briefed key Supreme Court cases – including key women’s equality cases -- brought or defended by government lawyers from Republican administrations, and Republican-appointed justices often authored the majority opinions in her favor. She co-directs  a universally admired nonpartisan institute that prepares attorneys to argue before the Supreme Court. Millett is one of the most respected appellate attorneys in the nation, and has argued dozens of cases before the Supreme Court.

Yet all three are facing filibusters simply because they were nominated by President Obama.

Stunningly, Senate Republicans have attempted to turn the tables on the president, accusing him of "court-packing" for attempting to fill congressionally-designated judicial vacancies with qualified nominees. This argument is laughably transparent: President Obama has nominated qualified individuals to seats that have been filled by all of his recent predecessors, even when the court's caseload was lower than it is today.

The Constitution mandates that the president name and the Senate fairly review nominees to federal judgeships created by Congress. President Obama has done his job by nominating three extraordinarily qualified nominees to the D.C. Circuit. But the Senate GOP is refusing to fulfill its duty of "advice and consent,” and is instead attempting to nullify the law and pretend the court has only eight seats.

This is the same strategy that House Republicans used when they shut down the federal government and threatened a default on the country’s debt in an attempt to bring down a law that had been enacted by Congress and upheld by the Supreme Court. Unable to achieve their preferred policies by winning elections, Republicans are attempting to nullify the results of those elections through extreme obstruction. 

This abuse of the filibuster has now led even one of the Senate's most fervent institutionalists  to consider eliminating the minority's ability to block nominees -- a fundamental change to an institution that less than ten years ago agreed to use the filibuster only under "extraordinary circumstances."

Senate Republicans must reconsider their nullification strategy, or risk harming not only the courts and executive agencies they are targeting, but the institution of the Senate itself.

Ponnuru Uses Discredited Arguments on DC Circuit

For one of the newest entries in the Republican spin war on the D.C. Circuit, check out conservative writer Ramesh Ponnuru's column in Bloomberg yesterday. The title alone – Republicans Shouldn't Let Obama Pack the Courts – tells you something important: A column that calls the simple act of nominating people to fill existing judicial vacancies "packing the courts" should be taken with a huge grain of salt.

As just about everyone has pointed out, "court-packing" refers to the FDR scheme to add seats to the Supreme Court in order to achieve desired rulings. Filling existing vacancies is run-of-the-mill constitutional procedure. The closest we've seen to court-packing in a long time isn't President Obama's nominating three qualified nominees to the D.C. Circuit, but the Republican Party's scheme to strip multiple judgeships from that court in order to maintain its current far-right tilt.

Ponnuru also writes that:

Starting in 2003, the Democratic minority embarked on an unprecedented series of filibusters to stop President George W. Bush's appointments to appeals courts. Back then, Republicans said there was a crisis of judicial vacancies needing to be filled. Democrats replied that the courts, especially the D.C. Circuit, were underworked and that the Republicans were trying to pack the courts with like-minded judges. Now the sides are reversed, and so are the talking points

In fact, the situations are hardly similar. Democratic filibusters of a few Bush-43 nominees were all based on their records. Whether it was Janice Rogers Brown, Brett Kavanaugh, or Miguel Estrada, the conversations during committee hearings and floor debates were about their records, not whether President Bush had a right to nominate anyone at all to the court. In contrast, Republicans signaled their intent to block President Obama's three nominees even before knowing who they would be.

Ponnuru writes that the D.C. Circuit has less work than it did when Bush's nominees were confirmed. In fact, Tenth Circuit Judge Timothy Tymkovich – the conservative, Bush-43-nominated jurist who is the chair of the Judicial Conference's Committee on Judicial Resources – testified before the Senate Judiciary Committee just a few weeks ago that this simply is not true. But even if you used the definition of caseload that Ponnuru's statement is based on (raw case filings without regard to the complexity of the cases), it still serves only to highlight GOP hypocrisy on the issue: As we have pointed out before, President Bush and Senate Republicans worked to fill these same seats in 2003 when the number of case filings was less than it is today.

Ponnuru also mischaracterizes an anonymous letter Senator Grassley claims to have received from a D.C. Circuit judge, suggesting that the letter somehow supports the notion that the current judgeships should not be filled.

First, legislators shouldn't be basing their decisions on edited comments from anonymous sources that are not even entered into the formal record or made available for public inspection and questions from senators. Secondly, it's clear from Grassley's rendition of the letter that it was talking about creating new judgeships, not filling existing vacancies. Here's what Sen. Grassley has said the anonymous judge wrote:

I do not believe the current caseload of the D.C. Circuit or, for that matter, the anticipated caseload in the near future, merits additional judgeships at this time. . . . If any more judges were added now, there wouldn't be enough work to go around. [emphasis added]

Since no one is talking about adding new judgeships to the D.C. Circuit, the quote has nothing to do with the situation before us.

Ponnuru also says that the court is actually balanced between Democratic and Republican appointees. While that is true for active judges, five of the court's six senior judges are Republican appointees. These senior judges sit on the three-judge panels that do most of the court's work, and they maintain a strong influence over the court. So when you draw a three-judge panel, there is a high likelihood that it will have a conservative majority, because Republican nominees outnumber Democratic ones 9-5, a nearly 2-1 ratio. Senate Republicans like those numbers and would like to keep them that way.

But there is a bigger picture: Even if everything that Ponnuru said was accurate, Congress has by law has established the D.C. Circuit as a court with eleven active judgeships. Senate Republicans don't like that, so they are using obstruction to make it de facto an eight-judge court. There are proper, constitutionally mandated ways of changing the law: Get Congress to pass a bill and the president to sign it. Nullifying and rewriting the current law through obstruction is not what the Founders had in mind, and it would make a lousy Schoolhouse Rock bit.

Cross-posted from PFAW.

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.”
 

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