PEOPLE FOR BLOG

Patrick Leahy and This Year's Success on Judges

As we've noted, 2014 has been a year of striking success for judicial nominations, with the Senate confirming a total of 89 circuit and district judges this year. That's the most judges in a single year since 1994, when the Senate confirmed 99 of President Clinton's circuit and district court judges. And due to Republican obstruction, these were not "easy" votes, even though the vast majority of nominees were approved with little to no opposition. Except for 11 who were confirmed by voice vote in the closing minutes of the 113th Congress, Republicans required a cloture vote for every nominee and a roll-call confirmation vote for all but a few of them, meaning that every confirmation consumed a great deal of floor time. (In contrast, about 40% of George W. Bush's circuit and district court nominees were confirmed by unanimous consent or voice vote.)

This yearlong commitment to judges, especially toward the end when most senators just wanted to go home, greatly served the American people and the judicial system we all rely on to protect our rights and the rule of law. Majority Leader Reid rightly made this a priority.

But a special recognition goes to Patrick Leahy, the outgoing chairman of the Judiciary Committee. He and his staff worked hard to process nominees quickly and efficiently, even while Republicans sought to slow the process down for no reason (e.g., routinely insisting on delaying committee votes without need or explanation). Timely hearings and votes are a critical component of an efficient confirmation process. The 11 consensus nominees approved by voice vote at the very end of the 113th Congress were all approved by the Judiciary Committee during the lame duck, and three of them had their hearings at the beginning of the lame duck. This speaks to the chairman's commitment to filling the vacancies on our nation's courts.

But Leahy's contributions went far beyond the Judiciary Committee hearing room. He has regularly spoken out on the Senate floor on the importance of getting judges confirmed, exposing and condemning needless delaying tactics. He has spoken out in party caucus meetings and in one-on-one conversations with his Democratic colleagues. And he doesn't just speak in generalities: He is specific, always with an array of statistics at his command demonstrating his point.

So much of the work of the Senate goes on off camera, in the interactions among its members. Perhaps no one knows that better than Leahy, who has served in the Senate longer than anyone else there today. Our nation is reaping the benefit of his dedication and his talent, since the Senate has gotten the number of judicial vacancies down to below – well below, in fact – where they were when President Obama took office.

This year's success would not have happened without him.

PFAW

Judge With a Political Ax to Grind Strikes Down Obama's Immigration Action

Sometimes you can tell when a judge is just itching to replace their robe with their politician's hat. Today, a federal district judge in Pennsylvania has struck down President Obama's recently announced executive actions on immigration as unconstitutional. But in so doing, Judge Arthur Schwab didn't just reach a wrong conclusion: He wrote his opinion in a way suggesting that he has put his ideological priorities ahead of the law.

The big questions in this case are: (1) Does the executive action apply to Elionardo Juarez-Escobar, the individual in this case? and (2) If so, is the executive action constitutional?

That's the order you'd expect the questions to be discussed, since judges are supposed to avoid making constitutional interpretations if they don't have to. But Judge Schwab – nominated to the bench by George W. Bush – tackled the constitutional question first, declaring the policy unconstitutional. Only then did he get to the second question, where he discussed how difficult it is to determine if the policy applies to Juarez-Escobar. About 2/3 of the way into the opinion, after addressing the constitutional issue, he writes:

[I]f President Obama's Executive Action is constitutional, the Court must determine its applicability to this Defendant.

Actually, he has that backwards: Only if the executive action applies to the defendant does the judge have any business addressing its constitutionality. His desire to jump to the constitutional question raises questions.

So do his needless editorial comments making clear that he disapproves of extending basic rights to undocumented immigrants. He writes:

Although it may seem counterintuitive that the Constitution, a document created to protect the citizens of this Nation, can endow undocumented immigrants illegally residing in this country with any constitutional rights, the Supreme Court of the United States has ruled that these individuals are entitled to be treated humanely and, at least on a procedural level, are to be afforded with certain constitutional rights and protections.

God forbid.

Adding to the question as to whether Schwab is being more judge or politician, he devotes an entire section to 2011 statements by President Obama that are not relevant to the issue but which far-right Republicans cite routinely. Obama made general comments about not being able to unilaterally change immigration law by executive order. He never said that he could not take any executive action, let alone the actions he took last month, which do not grant citizenship, give people legal status, or otherwise actually change the underlying immigration law.

And that's really the big picture here. Although there are over 11 million undocumented immigrants in the country, Congress only gives the administration the resources to deport about 3.5% of that number. Congress drafted the Homeland Security Act of 2002 with the recognition that decisions about priorities have to be made: In that law, Congress expressly gave the Department of Homeland Security the authority to "establish[] national immigration enforcement policies and priorities." And that's what President Obama is doing, just as other presidents have done before him. And just as the Roberts Court recognized in the 2012 case of Arizona v. U.S., where the Court wrote that "a principal feature of the removal system is the broad discretion exercised by immigration officials." President Obama is not doing anything even remotely beyond the pale.

So while President Obama's 2011 statements make great fodder for Fox News, they don't address the current executive actions, and the only reason to include them in a judicial opinion is to score political points.  Fortunately, this is just a district court ruling and is not likely to be the last word on this issue.

PFAW Foundation

PFAW Member Telebriefing: What We Can Expect From the Right in 2015

On Friday PFAW members and activists joined senior staff on a telebriefing about the types of priorities and tactics we can expect to see from the Right in the coming year. PFAW Communications Director Drew Courtney kicked off the call with a description of the political landscape in the wake of the midterm elections, where right-wing politicians are “now holding the levers of power in critical decision-making roles.”

Executive Vice President Marge Baker discussed the “CRomnibus” spending bill, saying that the antics we have seen during the lame duck are a microcosm of what we’re going to see in the new Congress. She noted that the harmful special interest riders snuck into the bill, such as the Wall Street giveaway and the raising of limits on contributions to political parties, are examples of the kind of “strong-arming techniques” we are likely to continue to see going forward.

Senior Fellow Peter Montgomery also joined the call, noting that the Right has a sizable agenda for the new year — one that begins with right-wing activists’ hatred of President Obama. This agenda, he said, includes repealing Obamacare, impeaching the president, resisting “to the bitter end” the advancement of marriage equality, and fighting anti-discrimination laws. Montgomery noted that in the coming year, we can expect to see GOP politicians making their already-close ties with Religious Right figures even closer.

Regional Political Coordinator Scott Foval discussed the Right’s political work at the state level. He highlighted Michigan’s state house, where in only the past couple of weeks both a “right to discriminate” bill and an electoral college-rigging bill have been moving through the legislature. Foval pointed out that this type of legislation may surface in other states across the country. The coming year will provide many opportunities for PFAW members to get involved at the state level as citizen lobbyists, he said.

Speakers underscored that the answers to all of the issues PFAW members raised on the call — from the damaging spending bill riders, to the influence of the right-wing American Legislative Exchange Council (ALEC) at the state and local level, to the disturbing revelations from the recently-released torture report — is to organize and advocate for the values we believe in.

You can listen to the full telebriefing here:

PFAW

Wall Street Giveaway in Spending Bill is Big Money Political Influence at its Worst

It’s hard to know where to begin when running down the list of harmful special interest giveaways in the omnibus spending bill narrowly passed by the House yesterday. Earlier this week, we wrote about a rider in the bill that would allow the amount of money rich donors can give to political parties to skyrocket. The legislation moving through Congress also includes a provision that would have the effect of allowing mountaintop mining companies to keep filling Appalachian streams with toxic waste. Yet another rider is a “Wall Street giveaway,” actually drafted by Citigroup’s lobbyists, that would repeal a piece of financial regulation and let banks take part in more kinds of high-risk trading deals with government backed money.

Sen. Elizabeth Warren railed against the Wall Street rider on the Senate floor:

[Americans] see a Congress that works just fine for the big guys, but it won’t lift a finger to help them. If big companies can deploy armies of lawyers and lobbyists to get the Congress to vote for special deals that benefit themselves, then we will simply confirm the view of the American people that the system is rigged.

It is, as Sen. Warren says, hard not to think that “the system is rigged” when members of Congress use a spending bill to sneak through major policy shifts that benefit wealthy political donors, Wall Street executives, and big businesses, while leaving the majority of Americans with an even weaker political voice.

This is especially true when you consider that those who voted for the rider-filled spending deal were, by and large, the members who received bigger contributions from the benefitting industries. The Washington Post compared the House spending bill votes with Center for Responsive Politics data on campaign contributions to each representative from the finance, insurance, and real estate industries. What they found is disheartening, but not surprising:

On average, members of Congress who voted yes received $322,000 from those industries. Those who voted no? $162,000.

And that doesn’t even take into account the dark money whose source is unknown to the public (but likely known by the officials who benefit from it).

It’s one more example of the influence that money can buy in our current system, where big gifts from corporate spenders pave the way for corporate political victories. When Wall Street lobbyists can literally write the laws they want, no matter the impact on ordinary Americans, it’s clear that we need serious reform to the rules governing money in politics.
 

PFAW

New Report Highlights the Racial Inequities of Big Money in Politics

The infusion of big money into our democracy is helping to perpetuate racial inequalities, according to a report released yesterday by Demos. As we have seen in recent election cycles, the most aggressive and influential political donors are overwhelmingly white and affluent, paving the way for elected officials to be beholden to a donor class and far less concerned about the needs of most Americans.

While the economic biases of money in politics are clear, the report, called “Stacked Deck: How the Racial Bias in Our Big Money Political System Undermines Our Democracy and Our Economy,” also highlights some unsettling information on how elections dominated by wealthy special interests impede efforts for a more racially diverse and responsive political system:

Elections funded primarily by wealthy, white donors mean that candidates as a whole are less likely to prioritize the needs of people of color; and that candidates of color are less likely to run for elected office, raise less money when they do, and are less likely to win. Ultimately, people of color are not adequately represented by elected officials.

• A recent study of black candidate success concluded that “the underrepresentation of blacks is driven by constraints on their entry onto the ballot” and that the level of resources in the black community is “an important factor for shaping the size of the black  candidate pool.”

• Candidates of color raised 47 percent less money than white candidates in 2006 state legislative races, and 64 percent less in the South.

• Latino candidates for state House raised less money than non-Latinos in 67 percent of the states where Latinos ran in the 2004 election cycle.

• In a typical election cycle, 90 percent or more of the candidates who raise the most money win their races.

• Ninety percent of our elected leaders are white, despite the fact that people of color are 37 percent of the U.S. population.

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• In a 2011 study, researchers found that white state legislators of both major political parties were less likely to reply to letters received from assumed constituents with apparently African American names (like “DeShawn Jackson”).

Tellingly, a governing body that skews heavily white also creates policies that can have detrimental impacts on racial minorities. The report also compiled case studies that demonstrate how big money disrupts progress on racial equality on a variety of issues, including:

• Private Prisons and Incarceration. Incarceration in the U.S. has increased by 500 percent over the past three decades, with people of color vastly over-represented in our nation’s prisons and jails. This is the result of policies that have put more people in jail for longer sentences despite dropping crime rates, policies boosting the bottom line of the growing private prison industry.

• The Subprime Lending Crisis. Because of rampant discriminatory lending practices, the subprime-lending crisis hit people of color especially hard. Banks and other mortgage lenders used millions of dollars of political contributions and lobbying to weaken and circumvent consumer-friendly regulations, resulting in the largest loss of wealth in communities of color in American history.

• The Minimum Wage. The federal minimum wage has remained stagnant, losing real value over the past several decades. Raising the wage to $10.10 an hour would lift more than 3.5 million workers of color out of poverty, but Congress has instead prioritized policies favored by the wealthy.

As money continues to dominate the process by which we elected public officials, our government moves further away from the true definition of a democracy and continue to serve only a very narrow segment of Americans.
 

PFAW Foundation

Twelve More Judges to Go

When the Senate Judiciary Committee advanced three more judicial nominees to the Senate floor yesterday, the number of judges waiting to be confirmed went from nine to 12. There is no reason to push them off till next year. In fact, there is every reason to confirm them now, before senators end the 113th Congress and head home.

One of the three nominees advanced yesterday, Joan Azrack, would fill a vacancy in New York that the Administrative Office of U.S. Courts has formally designated a judicial emergency. That means there simply aren't enough judges there to get the work done in a timely manner. For Americans who count on having their day in court, that fundamental right is being undermined every day this vacancy remains unfilled.

Elizabeth Dillon would be the first woman to serve as a federal judge in Virginia's Western District. In fact, she would be the first federal judge in that district who isn't a white man. Why wait until next year to break that barrier?

Loretta Biggs would be the first African American woman federal judge in North Carolina. In fact, the state has only had two African American federal judges in its history, and neither of them is still in active service. While Biggs has the support of both her home state senators, we don't know if that would be true next year, when Republican Thom Tillis replaces Kay Hagan.

Why would anyone force a long and unnecessary delay on confirming these three highly qualified nominees, or the nine others who could have been confirmed weeks ago?

PFAW

Proposed Spending Bill Would Let Wealthy Political Donors Give Even More

Just what our country needs after the most expensive midterms in history: a bill that lets big political donors spend even more money.

The government spending bill released by the House last night includes a rider that would drastically increase the amount of money the super-rich can give to national party committees. The language included in the spending deal would allow wealthy donors to give ten times the current limit to political parties.

Adam Smith at Public Campaign put the potential new limits into perspective in a powerful graphic:

With the new annual individual party limit expected to be more than six times the median household income, it’s clear that this shift is simply about handing the wealthiest political donors even more power and access. A tiny fraction of the country already dominates political spending; these changes would make it even harder for ordinary Americans to have a seat at the table.

What’s more, these provisions, which would have major implications for the health of our democratic process, were not even debated by Congress. They were simply snuck into an omnibus spending bill – a quiet attack that threatens to further undermine what’s left of our country’s common-sense rules limiting big money in politics.

After the midterm elections, exit polls found that nearly two-thirds of voters said that our system already favors the wealthy. Americans are ready for a government that works for everyone. But it looks like what we’re getting instead are Congressional leaders increasing committed to big money donors at the expense of everyone else.

PFAW

New Study Examines Corporate Echo Chamber at Supreme Court

Reuters has released a study showing that a relatively small number of elite attorneys have been involved in 43% of the cases the Supreme Court has taken over the past few years. The Reuters study, entitled The Echo Chamber, shows that most of these lawyers represent corporate interests, and their participation in a case makes it much more likely that the Court will agree to hear it.

A Reuters examination of nine years of cases shows that 66 of the 17,000 lawyers who petitioned the Supreme Court succeeded at getting their clients' appeals heard at a remarkable rate. Their appeals were at least six times more likely to be accepted by the court than were all others filed by private lawyers during that period.

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The Reuters examination of the Supreme Court's docket, the most comprehensive ever, suggests that the justices essentially have added a new criterion to whether the court takes an appeal – one that goes beyond the merits of a case and extends to the merits of the lawyer who is bringing it.

The results: a decided advantage for corporate America, and a growing insularity at the court. Some legal experts contend that the reliance on a small cluster of specialists, most working on behalf of businesses, has turned the Supreme Court into an echo chamber – a place where an elite group of jurists embraces an elite group of lawyers who reinforce narrow views of how the law should be construed.

Of the 66 most successful lawyers, 51 worked for law firms that primarily represented corporate interests. In cases pitting the interests of customers, employees or other individuals against those of companies, a leading attorney was three times more likely to launch an appeal for business than for an individual, Reuters found.

In a SCOTUSBlog interview, study co-author Joan Biskupic discusses the outsized influence of corporate interests, including how it makes it harder for ordinary people to find the same caliber of high-powered lawyer as the corporate interests have available to them.

The domination of the docket by corporate interests has consequences for consumer and employee cases. Because corporate lawyers can't take those cases (based on firm-wide conflicts of interest), individuals are often left to a smaller, and collectively less successful, pool of lawyers.

In a nation founded upon Equal Justice Under Law, any indication that everyday Americans are systemically disadvantaged against powerful corporations at the Supreme Court must be taken seriously. Workers, consumers, and small business owners should certainly have the best legal representation possible.

Americans should also have the best judges possible, be it on the Supreme Court or any other court. Unfortunately, we have seen for some time now that a small but consistent majority of the Supreme Court is made up of conservative ideologues who are far more likely than not to rule in favor of corporate interests, even if they have to bend the law and ignore logic in order to do so.

That needs to change.

PFAW Foundation

Pregnant Workers' Rights at the Supreme Court

Today, the Supreme Court heard oral arguments in Peggy Young v. UPS, a case that will affect just how much protection is afforded by a federal law protecting pregnant workers from job discrimination. This is one of the cases discussed in PFAW Foundation's preview for the current Supreme Court term.

Young, a pregnant UPS driver, was told by her doctor that she shouldn't lift more than 20 pounds while she was pregnant. When the company refused her request for temporary light duty, she was forced to choose between her job and her pregnancy. She chose the latter, and she had to take unpaid leave for the rest of her pregnancy, which also meant a temporary loss of her health insurance.

UPS changed its policy a few weeks ago, and it now accommodates women in Young's position.  But the company claims its original policy was legal and not in violation of the 1978 Pregnancy Discrimination Act. The PDA says that job discrimination on the basis of pregnancy is a form of illegal sex discrimination (a point that should have been obvious, except the Supreme Court had interpreted Title VII otherwise a couple of years earlier).

But it does more than that: a second clause also specifically mandates the pregnant women "shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work."

Since UPS gave light duty to certain other workers who are similar in their ability or inability to work – ones with an on-the-job injury, the loss of their driving certification, or a permanent disability – Young sued, saying that her employer's treatment of her violated the PDA. But UPS says its policy was legal because it was "pregnancy-blind:" They claim they were treating Young the same way they'd have treated a non-pregnant employee whose injury doesn't fit any of the above conditions.

The Washington Post reports that at this morning's oral arguments, the Court "tread somewhat gingerly through an hour of technical arguments."

Justices Elena Kagan and Ruth Bader Ginsburg dominated the questioning of the company's lawyer, Caitlin J. Halligan.

Kagan said that when Congress passed the Pregnancy Discrimination Act of 1978, it meant to abolish the "stereotype" of women as marginal workers. She said the act forbids policies that put all pregnant women "on one side of the line," and instead forces employers to prove their actions are not discriminatory.

Justice Ginsburg also had a retort to one of Justice Scalia's criticisms of Young's arguments:

Justice Antonin Scalia [said that Young] seemed to be seeking special recognition under the 1978 act, akin to "most-favored nation" status.

Ginsburg later countered that the UPS policy seemed to convey "least-favored nation" status.

The question for the Court is what Congress intended when it passed the Pregnancy Discrimination Act. Did it truly intend for it to be so easy for companies like UPS to force women to choose between their job and their pregnancy? Or did Congress intend to protect pregnant workers who need their employers to make some reasonable temporary accommodation so they don't have to quit their jobs, lose their health insurance, and deprive their families of much-needed income?

PFAW Foundation

Soon-To-Be Senate Majority Leader McConnell Tests the Waters on Further Gutting Campaign Finance Laws

Sen. Mitch McConnell (R-KY), who is poised to become the new Senate Majority Leader when Republicans take over the Senate in January, is well known for his opposition to limits on big money in politics – whether through his unabashed support for the disastrous Citizens United ruling or his filibusters to prevent Senate votes on laws requiring more campaign finance disclosure. Now, before he even becomes Majority Leader, McConnell has already tried to further dismantle commonsense rules on money in elections.

McConnell attempted to add a rider to an omnibus appropriations bill – which must pass in order to prevent another government shutdown – that would “effectively chip away at direct contribution limits for candidates.” After opposition from sitting Senate Majority Leader Harry Reid (D-NV) and Rules Committee Chairman Charles Schumer (D-NY), Senator McConnell has backed off his proposal for now. Nonetheless, the writing is on the wall. McConnell wants to further deregulate the spending of private money in political campaigns.

Under current law, contributions to candidates in a two-year cycle are limited to $5,200 per donor. Donors can also give $20,000 to state party committees and more than $60,000 to national party committees. Currently candidates are limited in their ability to coordinate spending with the party committees that support them. If passed, McConnell’s measure would have effectively allowed party committees to fully coordinate with candidates in spending campaign funds.

While Senate Democrats rejected the rider, Sen. McConnell’s actions clearly show his intentions to further roll back existing campaign finance laws and threaten efforts to limit big money in politics when Republicans take charge of the Senate in January. This is likely a preview of what’s in store for us in the coming years.

PFAW

Federal Judge Gives History Lesson on Anti-Gay Discrimination

The federal court ruling striking down Mississippi’s ban on same-sex couples getting married is worth reading for many reasons. Paul wrote earlier about U.S. District Judge Carlton Reeves’s compelling explanation of the role of the courts in protecting Americans’ constitutional rights. The ruling is also filled with rich historical detail about the extent to which the state of Mississippi and the federal government have discriminated against LGBT citizens over the years, as well as the ways in which groups like the Ku Klux Klan and the notorious Mississippi State Sovereignty Commission used anti-gay rhetoric and innuendo in their attacks on African American civil rights leaders and institutions.

This history is an important rebuttal to bogus claims by anti-gay activists that gay people do not need to have their rights protected in law because they have never suffered from discrimination.

Quotes from the opinion, with citations removed for readability:

Any claim that Mississippians quietly accommodated gay and lesbian citizens could no longer be made in the 1960s, when prejudice against homosexuals (and other groups) became more visible during the civil rights movement. Segregationists called their opponents “racial  perverts,” while U.S. Marshals – summoned to enforce civil rights – were labeled “sadists and  perverts.” Klan propaganda tied together “Communists, homosexuals, and Jews, fornicators and liberals and angry blacks – infidels all.”

One Klan photo showed a black man touching the crotch of the white man sitting next to him, attempting to make the link between racial equality and homosexuality explicit.

Civil rights leaders had predicted the attack. In selecting the Freedom Riders, James Farmer had conducted interviews to weed out “Communists, homosexuals, [and] drug addicts.” “We had to screen them very carefully because we knew that if they found anything to throw at us, they would throw it,” he explained.

This reflected society’s notion that homosexuals were “undesirables.” It also placed civil rights leaders in the position of seeking rights for one disenfranchised group while simultaneously seeking to avoid association with another disenfranchised group. Mississippians opposed to integration harassed several civil rights leaders for their homosexuality. Bill Higgs was a prominent gay Mississippi civil rights lawyer. He was targeted for his activism, convicted in absentia of delinquency of a minor, and threatened with “unlimited  jailings” should he ever return to Mississippi.

He never did.

Reeves also discusses the case of Bayard Rustin, the openly gay African American civil rights activist who organized the 1963 March on Washington at which Martin Luther King, Jr. delivered his famous “I Have a Dream” speech.

The most interesting part of Rustin’s story, though – and the reason why he merits more discussion here – is that he was subjected to anti-gay discrimination by both white and black people, majority and minority alike. Congressman Adam Clayton Powell, a black Democrat, threatened to feed the media a false story that Rustin was having an affair with Martin Luther King, Jr., unless Dr. King canceled a protest at the Democratic National Convention.

Other persons within the civil rights movement were similarly “put off by Rustin’s homosexuality.” Roy Wilkins, an NAACP executive, “was particularly nasty to Bayard Rustin – very hostile,” in part because he “was very nervous about Bayard’s homosexuality.” Dr. King eventually had Rustin resign “because of persistent criticism of Rustin’s homosexuality and Communist ties and because of Congressman Adam Clayton Powell’s threat.”

Rustin reemerged years later as one of the principal organizers of the March on Washington for Jobs and Freedom. A. Philip Randolph and Dr. King wanted Rustin as the march’s chief organizer, but Wilkins pushed back “because [Rustin] was gay . . . something which in particular would offend J. Edgar Hoover.” The group ultimately “decided Randolph would be in charge of the march, that Rustin would be the principal organizer, but that he would stay somewhat in the background.”

The concern about offending Hoover was prescient, as the FBI Director and other top officials soon moved to use Rustin’s homosexuality against him. In August 1963, FBI Director J. Edgar Hoover, Attorney General Robert F. Kennedy, and President John F. Kennedy urgently reviewed the transcript of a FBI wiretap in which Dr. King acknowledged Rustin’s homosexuality. A day later, Senator Strom Thurmond of South Carolina “rose in the Senate to denounce Rustin for sexual perversion, vagrancy, and lewdness.” FBI “headquarters badgered the field offices for new details” of Rustin’s sex life for months.

As Reeves makes clear, this kind of persecution was not only reserved for civil rights activists.

Rustin’s story speaks to the long tradition of Americans from all walks of life uniting to discriminate against homosexuals. It did not matter if one was liberal or conservative, segregationist or civil rights leader, Democrat or Republican; homosexuals were “the other.” Being homosexual invited scrutiny and professional consequences.

These consequences befell quite a few Mississippians. Ted Russell, the conductor of the Jackson Symphony Orchestra, lost his job and his Belhaven College faculty position after he was caught in a gay sex sting by the Jackson Police Department. In the early 1980s, Congressman Jon Hinson drew scrutiny for frequenting an X-rated gay movie theater in Washington, D.C., and although he won reelection, he resigned when he returned to Washington and was caught performing gay sex acts in a Capitol Hill bathroom. As early as 1950, the State’s flagship institution of higher learning, the University of Mississippi, “forced three homosexual students and one faculty member to leave the university” because it “did not tolerate homosexuality.” Lesbian instructors at Mississippi University for Women were pushed out of their jobs, while students at other Mississippi public universities were expelled for their homosexuality. A 1979 article on gay Jacksonians said “most” remained closeted because “they fear losing their jobs, friends and families.”

Reeves discusses the anti-gay actions of the Mississippi State Sovereignty Commission, which was created in 1956 to maintain racial segregation by any means necessary.

Sovereignty Commission “[i]nvestigators and local officials also targeted local blacks and outsiders involved in civil rights activities as being sexually deviant.” They singled out Rust College, a private historically black institution, on reports that instructors there were “homosexuals and racial agitators.”

Those with power took smaller, yet meaningful, actions to discourage gay organizing and association in Mississippi. The State refused to let gay rights organizations incorporate as nonprofits. The newspaper at Mississippi State University – student-led, with an elected editor – refused to print a gay organization’s advertisement notifying gay and lesbian students of an off-campus “Gay Center” offering “counseling, legal aid and a library of homosexual literature. An advisor to the U.S. Commission on Civil Rights concluded that the Jackson Police Department took “a series . . . of maneuvers to harass members of Jackson’s gay community.” “As of 1985 not a single university campus in Mississippi recognized a lesbian and gay student group.”

Reeves’s ruling also makes clear that official discrimination is not only in the state’s past.

In 1990, the Mississippi Supreme Court affirmed a trial judge who declared that a mother, who was a lesbian, could not visit her children in the presence of her female partner. In Weigand v. Houghton, the Mississippi Supreme Court affirmed a trial judge who refused residential custody to a father in large part because he was in a long-term relationship with another man. A dissent complained that the father’s sexuality had impaired the court’s judgment, since the child would now have to live with “the unemployed stepfather [who] is a convicted felon, drinker, drug-taker, adulterer, wife-beater, and child-threatener, and . . . the mother [who] has been transitory, works two jobs, and has limited time with the child.”

 In 2002, one of Mississippi’s justice court judges, frustrated with advances in gay rights in California, Vermont, and Hawaii, “opined that homosexuals belong in mental institutions.” Although he was reprimanded and fined by the Mississippi Commission on Judicial Performance, the Mississippi Supreme Court vacated the sanctions. It was more important for gay citizens to know that their judge was biased and seek his recusal than to “forc[e] judges to conceal their prejudice against gays and lesbians,” it wrote. The “Commission urges us to ‘calm the waters’ when, as the guardians of this state’s judicial system, we should be helping our citizens to spot the crocodiles.”

Reeves details a number of recent complaints and lawsuits challenging discriminatory treatment by state and local governments as well as legal inequities such as the fact that Mississippi law permits a single person to adopt a child but not gay or lesbian couples.

This kind of restriction was once supported by pseudoscience. We now recognize that it actually “harms the children, by telling them they don’t have two parents, like other children, and harms the parent who is not the adoptive parent by depriving him or her of the legal status of a parent.”

Reeves concludes the historical section of the ruling this way:

“The past is never dead. It’s not even past.” That is as true here as anywhere else. Seven centuries of strong objections to homosexual conduct have resulted in a constellation of State laws that treat gay and lesbian Mississippians as lesser, “other” people. Thus, it is easy to conclude that they have suffered through a long and unfortunate history of discrimination.

PFAW Foundation

Mississippi Judge Striking Down Marriage Ban Explains the Courts' Role

Among the many things to be thankful for this Thanksgiving are our fundamental constitutional rights and the principled federal judges who make sure those rights are vindicated, even when popular majorities disagree. Judge Carlton Reeves reminded us of that yesterday in his ruling striking down Mississippi's ban that prevented gays and lesbians from marrying.

Judge Reeves has written a thorough opinion that respectfully considers all the arguments put forth by opponents of marriage equality and carefully explains why the marriage ban, popular as it may be in Mississippi, violates both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. At 72 pages, it is well worth reading if you want to see our Constitution and our federal court system at their best.

Among the many highlights is Judge Reeves's response to those who say the issue of marriage equality should be resolved in the political branches rather than through the courts. This is the position recently taken by the Sixth Circuit in a highly flawed opinion written by Judge Jeffrey Sutton. Judge Reeves explains:

In upholding four states' same-sex marriage bans, [the Sixth Circuit] expressed optimism that voters would change their minds on same-sex marriage, and argued that the courts should give them that opportunity. As that court wrote, "from the claimants' perspective, we have an eleven-year record marked by nearly as many successes as defeats and a widely held assumption that the future holds more promise than the past—if the federal courts will allow that future to take hold." (emphasis added).

The undersigned sees the judicial role differently. The courts do not wait out the political process when constitutional rights are being violated, especially when the political process caused the constitutional violations in the first place. The framers did not set up Article III to yield to "the superior force of an interested and overbearing majority." The Federalist No. 10. By honoring its obligation conferred by Article III [of the Constitution], the court does not diminish the political process. Rather, the court holds fast to the fundamental belief that constitutional principles that safeguard liberty and guarantee equality are not subject to the ballot. [footnote and internal citations removed]

Judge Reeves also provides an important historical context and the role courts have played in fulfilling the promises of our Constitution:

Under the Fourteenth Amendment, a state may not "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. Although this text has not changed in nearly 150 years, our understanding of it has changed dramatically. Before turning to today's issue, then, it is worth considering some of those historical changes.

He then cites Supreme Court cases interpreting the Fourteenth Amendment to allow racial segregation, the blanket exclusion of women from practicing law, the criminalization of consensual sex between two men in their own home:

These are just a few examples. There are others. Even an abbreviated history shows that millions of Americans were once deemed ineligible for full Fourteenth Amendment protection. But we now take for granted that racial discrimination is wrong, that women cannot be excluded from the professions, and that gay and lesbian citizens are entitled to the same privacy in their sex lives that heterosexual citizens enjoy. We changed. These issues have faded into the background of everyday life.

The judiciary plays a unique role in this process. The above cases were not put to a vote of the American people. The votes had already been counted; the legislatures had already acted. Most voters thought nothing wrong with the status quo, unconstitutional as it may be.

This was always a risk of our representative democracy. James Madison wrote that "measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority." The Federalist No. 10. He and his colleagues "knew times can blind us to certain truths." Lawrence [v. Texas], 539 U.S. at 579. Mistakes would be made.

In their wisdom, though, they created a co-equal branch of government where aggrieved persons could try to show "that the laws once thought necessary and proper in fact serve only to oppress." Id. The judiciary has been charged with hearing these claims for more than two centuries. The will of the majority is usually affirmed. Every now and then, however, the majority has done an injustice to a person's rights, and the case must be resolved in his or her favor.

Judge Reeves, who was nominated to the bench by President Obama, explains well the importance of our nation's federal courts, while also demonstrating how important it is who serves on those courts.

PFAW Foundation

Whose State of Emergency?

This post was original published at The Huffington Post.

On the evening of the announcement that a grand jury decided Darren Wilson, the Missouri police officer who killed unarmed teenager Michael Brown, would not face charges, two storms were capturing the attention of the American people. One was the strong winds that created havoc from the South to the North, and the second was the manifestation of pain through protest over the grand jury's decision.

Last week, Missouri Governor Jay Nixon declared a state of emergency in Ferguson. States of emergency are generally declared in response to natural disasters or civil upheaval. Last week the Ferguson activist group Hands Up United tweeted, in response to Gov. Nixon's announcement, "Our country is in a state of emergency. And not becuz of protestors."

As other advocates have pointed out, we were already in a state of emergency.

Since that fateful day in August when Brown was killed, we have heard analysis from commentators on television, radio, and social media, in barber and beauty shops, and on street corners, about what will happen in Ferguson after the immediate call for criminal justice. We saw a military-style police crackdown on peaceful demonstrators, another sterile review of our broken policing system, and new and veteran activists protesting, organizing, registering people to vote, and bearing witness to a grieving community's call yet again for change in cities across America where silence is not an option in the wake of the death of another unarmed African American male.

A "state of emergency," we are reminded, was declared when Katrina hit the vulnerable walls of New Orleans and flooded neighborhoods. But we were also in a "state of emergency" after the verdict was rendered in the shooting death of Jordan Davis. A "state of emergency" was evident in the November 4 midterm elections when I saw "democracy only for some" in the ten states where I traveled. Our broken immigration system created a "state of emergency" for families that have been separated, threatened with deportation, treated as collateral damage in political debates.

USA Today recently reported that on average there were 96 cases of a white police officer killing a black person each year between 2006 and 2012, based on justifiable homicides reported to the FBI by local police. Mother Jones notes that according to the Department of Justice's 2008 Police Public Contact Survey, "[o]f those who felt that police had used or threatened them with force that year, about 74 percent felt those actions were excessive. In another DOJ survey of police behavior during traffic and street stops in 2011, blacks and Hispanics were less likely than whites to believe that the reason for the stop was legitimate."

That is a state of emergency.

The 1,700 faith leaders in the alliance of progressive African American ministers I lead, frequently primary sources of support in tragedies like this, are too often ministering to mothers and fathers who find themselves suddenly without a child who was alive and well when the day began. These leaders have been fervently preaching, teaching, counseling, meeting with chiefs of police and other city officials, communities and families about the dual system of justice that is still prevalent in the 21st century. While some live in or near Ferguson and others traveled to Ferguson to show support, more just had to walk out their doors, down their streets, to their corners to see the results of delayed justice.

We were already in a state of emergency because of the gun violence in communities across the country. But today, when African American youth are so often shot and killed, such as the 12-year-old in Cleveland, Ohio this past weekend, by those who are charged to protect our communities, the climate that attempts to justify the daily reality of racial profiling and African Americans being nearly "four times as likely to experience the use of force" in police encounters, can no longer be tolerated. Yes, we stay in a state of emergency when African Americans receive longer sentences than Caucasians for the same crimes and when the troubling results of new polling show the racial divide on the shooting death of Michael Brown is as wide as the Mississippi River is long.

The decision announced on Monday evening is certainly not the final chapter, but sadly is another chapter in the experience of living non-white in America. Michael Brown Sr. says he wants his son's death to spark "incredible change, positive change," no matter the grand jury's decision. Continuing dialogue and movement on police violence and the relationship between law enforcement and the African American community must happen daily in living rooms, classrooms, places of worship, and work places around the country, for as feminist scholar bell hooks wrote, "[S]ilences in the face of racist assault are acts of complicity." She is right. Today all Americans are being called to speak out against the ongoing violation of the most fundamental right there is - the recognition of being a part of "We the People."

Dr. King said in 1963, "The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy." We are in a state of emergency, a time of challenge and controversy, but not because of the protestors. That state of emergency will continue until we stand, become uncomfortable, and demand a justice system that addresses the manifestation of pain in protest, the further chipping away of respect, and the real state of emergency our country faces.

PFAW Foundation

Republicans Revive Bold Scheme to Rig Presidential Elections

This was originally published at The Huffington Post.

After Republicans failed to capture the White House in 2012, they dusted off a tried-and-true plan to improve their future electoral prospects. No, they wouldn't moderate their views or expand their appeal to win votes. They would just change the way that the votes are counted!

The plan: to rig the electoral college with the ultimate goal of squeaking out a Republican presidential win, even in an increasingly challenging electoral landscape.

Here's how it was supposed to work.

Before the 2010 election, Republican strategists focused energy and resources on gaining control of state legislatures, and succeeded in flipping party control of legislative chambers in blue states including Pennsylvania, Michigan and Wisconsin. This allowed Republican legislatures to draw congressional districts, gerrymandering their states to ensure future Republican gains even in states where Democrats tend to win statewide.

GOP strategists then took it a step further. What if Republicans used their control over these blue states and their favorably gerrymandered electoral maps to make it harder for Democrats to win presidential elections?

Under the Constitution, each state determines how it will distribute its electoral votes to presidential candidates. All but two states (Maine and Nebraska) have a "winner take all" system, in which the winner of the state's popular vote earns all of its electoral votes. The Republican plan would keep the "winner take all" system in big, solidly red states like Texas. But it would change it in big, blue states like Pennsylvania and Michigan, ensuring that a Democratic candidate who wins the popular vote in the state doesn't go home with all of its electoral votes.

For instance, under the plan originally proposed in Pennsylvania after the 2012 election, which would have divided the state's electoral votes up by gerrymandered congressional districts, Mitt Romney would have won 13 of the state's 20 electoral votes, despite having lost the state's popular vote. Last year, the Republican-controlled state house in the presidential swing state of Virginia put forward a plan to do something similar. If the Virginia plan had been in effect in 2012, Mitt Romney would have carried away nine of the state's 13 electoral vote, despite having lost the state's popular vote to Barack Obama.

Republican National Committee chairman Reince Priebus made the goal of the scheme clear when he endorsed it last year, saying, "I think it's something that a lot of states that have been consistently blue that are fully controlled red ought to be looking at."

The proposals in Pennsylvania and Virginia sank after groups like People For the American Way got out the word and residents realized the proposals were part of a blatant political ploy. But this month, the scheme was resurrected in Michigan, where a Republican state lawmaker is proposing his own plan to dilute the power of his state's reliably Democratic electoral college block. Under the plan introduced by Rep. Pete Lund, Michigan's electoral votes would be distributed according to a formula tied to the popular vote. It's not as blatant as the original Pennsylvania and Virginia proposals were, but it has the same goal: If it had been in effect in the last presidential election, it would have cut President Obama's electoral total in Michigan down to 12 from 16.

These plans can initially seem reasonable, even to progressives, many of whom are wary of the electoral college system. But this isn't a good-government plan to change the way our presidential elections are conducted. It's a targeted plot to get more electoral votes for Republicans, even when they're losing the popular vote. It's no coincidence that these plans have often been quietly introduced in lame duck sessions, when voters are paying less attention. These measures, if allowed to be passed quickly in a few states with little debate and attention, could have national implications and change American political history.

Voters should be allowed to pick their politicians. But this is yet another case of politicians trying to pick their voters. Like with voter suppression schemes and extreme gerrymandering, the GOP is trying to change the rules of the game for their own benefit. Voters can't let them get away with it.

PFAW

WATCH: New Video Highlights GOP’s Remarks on Immigrants

From accusing them of carrying head lices, scabies and other diseases across the border to saying they should be tracked like  “FedEx packages,” Congressional Republicans held nothing back in attacking immigrants on the campaign trail this year. Their remarks were a continuation of a long history of outrageous, offensive and dehumanizing rhetoric from Republican lawmakers about immigrants.

So ahead of President Obama’s immigration reform announcement tonight, American Bridge and People For the American Way released a new video calling out Republicans for their extremist remarks against immigrants and immigration reform. While the President’s executive order will probably affect only some of the millions of undocumented immigrants living in the U.S., it seems likely we will hear more of the same from the Right Wing in the coming months.

PFAW