PEOPLE FOR BLOG

In Los Angeles, California, a group of specialists in media, advertising and entertainment, joined by business people, lawyers, and civic activists have founded an organization that is running advertisements based solely on the need to amend the Constitution to fix our political campaign finance system.  The group, Fix Our America, has begun the process of running the following advertisement on airwaves in California, and is seeking to run more ads in other media markets across the country:

These advertisements are boosting the amendment dialogue in California, a state that has witnessed much grassroots amendment activity yet is still in need of deep reform.  Just days ago, Los Angeles voters approved Ballot Measure C, which called for a constitutional amendment to overturn Citizens United, with 77% of the vote; last year, the California state legislature passed an amendment resolution “to restore constitutional rights and fair elections to the people”; and since the Citizens United decision came down in January 2010, over 75 California municipalities have called on Congress and the states to pass and ratify an amendment to overturn Citizens United.

California does not stand alone.  The amendment movement is well underway and gaining momentum in states across the country.  Fix Our America is yet another example of the American people joining together in protest of the fundamental threat that corporate and special interest campaign spending poses to our democratic institutions.  In the words of Fix Our America’s Declaration of Principles Statement, “Americans deserve the best. Instead, we have been saddled with a system that … leaves all of us at the mercy of those who buy legislation and policy to suit their narrow interests.”  The time has come to fix that.
 

On the Senate floor this morning, Republican leader Mitch McConnell again showed how utterly without merit his party's obstruction techniques are.

Last week, the Judiciary Committee unanimously voted to approve the nomination of Sri Srinivasan to the D.C. Circuit, a critically important court that President Obama has been unable to fill vacancies on due to Republican obstruction. There is no reason to prevent the Senate from holding a prompt confirmation vote, especially since the court has four of its eleven active judgeships vacant. Yet Republicans are doing just that, forcing Democrats to file cloture to end the filibuster.

This morning, McConnell took to the floor to complain that Majority Leader Reid was moving too fast, but that he'd be willing to allow a vote on June 4, right after the Memorial Day break. With the Judiciary Committee having fully vetted the nominee and approved of him without a single no vote – and with McConnell admitting on the floor that Republicans plan to support the nominee – it is unclear what would be gained by waiting.

McConnell also complained that a vote for Srinivasan this week would be unfair to Tenth Circuit nominee Greg Phillips. Phillips was nominated seven months after Srinivasan but, unlike the D.C. Circuit nominee, was allowed to have his committee consideration proceed without months of needless delay: Phillips was approved by the committee without opposition last month. So Reid suggested the obvious solution to McConnell's alleged problem: holding Phillips' already-overdue confirmation vote today.

But McConnell objected, thereby preventing the Senate from holding a vote.

It is worth noting that 19 of George W. Bush's circuit court nominees had confirmation votes within a week of committee approval. Thanks to McConnell, that number is zero for Obama, and the Republican leader clearly hopes to keep it that way.

The Wall Street Journal published a remarkable editorial yesterday accusing President Obama of acting like a "king" and acting illegitimately "for political ends" because he wants to fulfill his constitutional responsibility to nominate people for each of the judgeships that Congress has created on the D.C. Circuit Court of Appeals, the second most influential court in the country.

Notably, the Journal editorial does not oppose any nominees on the merits. That's because President Obama has not yet nominated anyone to fill the vacant ninth, tenth, and eleventh seats on this 11-member court. What the Journal objects to is the very idea that President Obama wants to fill seats at all.

Their reasoning is that "the court doesn't need the judges." They cite the D.C. Circuit's workload, which is currently higher per authorized judgeship than it was when George W. Bush nominated Thomas Griffith and Janice Rogers Brown to the 10th and 11th seats (120 today vs. 109 then).

It's good to be the king. When the federal courts overturn your Administration's rules or find decisions unconstitutional, you can pack them with judges more likely to rule your way. That seems to be the working theory at the White House, where word is that President Obama is close to nominating several new judges to sit on the D.C. Circuit Court of Appeals.

...

The point is that the D.C. Circuit doesn't need new judges to handle the workload. Congress recognized this in 2008 when it reduced the court's authorized judgeships to 11 from 12. But even that is too many because the last time the court had a full slate of 11 active judges was 1999. In April, Iowa Republican Chuck Grassley introduced a bill that would move two of the D.C. Circuit's judgeships to the busier Second and Eleventh Circuits and eliminate a third.

That makes sense unless your goal is packing the court for political ends. Senior judges don't sit en banc (i.e., full court review) unless they sat on the three-judge panel that first hears a case. So the White House may figure it has a better chance of using en banc review to overrule a decision it doesn't like. Packing the court also means the White House is more likely to draw a three-judge panel favorable to its legal and policy preferences.

Mr. Obama ought to settle for adding Mr. Srinivasan to the court. If he insists on trying to pack it, Republicans should just say no.

In fact, the D.C. Circuit's workload per active judge is higher now than it was when conservatives successfully confirmed Bush nominee Griffith to the eleventh seat in 2005, which resulted in there being approximately 121 pending cases per active judge. That number has now increased to about 188 cases per active judge, according to the most recent data on pending cases made available by the Administrative Office of U.S. Courts.

But the numbers are only part of the story. Due in part to statutes requiring certain types of cases to be heard by the D.C. Circuit and no other, it has a much higher proportion of extremely complex cases than do other circuits.

As former D.C. Circuit Chief Judge Pat Wald -- who served on that court for more than twenty years -- has explained:

The D.C. Circuit hears the most complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary Americans' lives: clean air and water regulations, nuclear plant safety, health-care reform issues, insider trading and more. These cases can require thousands of hours of preparation by the judges, often consuming days of argument, involving hundreds of parties and interveners, and necessitating dozens of briefs and thousands of pages of record – all of which culminates in lengthy, technically intricate legal opinions.

Even Chief Justice John Roberts, who served on the D.C. Circuit, agrees that the D.C. Circuit's caseload is unique. As he wrote in "What Makes the D.C. Circuit Different? A Historical View:"

It is when you look at the docket that you really see the differences between the D.C. Circuit and the other courts. One-third of the D.C. Circuit appeals are from agency decisions. That figure is less than twenty percent nationwide. About one-quarter of the D.C. Circuit's cases are other civil cases involving the federal government; nationwide that figure is only five percent. All told, about two-thirds of the cases before the D.C. Circuit involve the federal government in some civil capacity, while that figure is less than twenty-five percent nationwide.[2]

In fact, there is a scheme to transform the D.C. Circuit for purely "political ends." That scheme is being orchestrated by Republican Sen. Chuck Grassley, who wants to dramatically cut the number of judgeships on the court in order to prevent President Obama naming new judges to it.

It's no wonder Grassley and the WSJ want to keep the D.C. Circuit as it is: It is dominated by judges who were nominated by Republican presidents dedicated to imposing far right-wing ideology from the federal bench. The results have been devastating, as analyzed in a recent PFAW report: America's Progress At Risk: Restoring Balance to the D.C. Circuit Court of Appeals. And since we released our report, the ideologues on this court have continued to bend the law and ignore logic in order to find against the interests of ordinary people and in favor of powerful corporate interests.

Filling statutorily created judgeships on the D.C. Circuit is part of the president's constitutional duty. The idea that the president acts like a king when he does so would have sounded strange to President Obama's predecessors, who faced no such challenges to their right to nominate people to the courts:

One of President Obama’s most important long-term achievements has been his concerted effort to bring qualified judicial nominees from a wide variety of backgrounds to the federal bench. 42 percent of President Obama’s confirmed judicial nominees have been women, compared with just 22 percent of those nominated by the second President Bush and 29 percent of those nominated President Clinton. Likewise, 46 percent of his confirmed nominees have been people of color, a dramatic change from the previous administration, in which 82 percent of federal judicial nominees were white. And President Obama has nominated more openly gay people to federal judgeships than all of his predecessors combined. (All of these numbers are available in this pdf from our friends at Alliance For Justice).

The four new judicial nominations that the White House announced last night are perfect examples of this effort to make the courts better reflect the people they serve. One, Judge Carolyn B. McHugh, who has been nominated to the Tenth Circuit Court of Appeals, would be the first woman to sit on a federal appeals court in Utah. Pamela L. Reeves, nominated to the Eastern District of Tennessee, and Elizabeth A. Wolford, nominated to the Western District of New York, would be the first women to serve in their respective districts. And Debra M. Brown, nominated to the Northern District of Mississippi, would be the first African-American federal judge in her district and the first African-American woman to serve as an Article III judge in Mississippi.

Another important type of diversity among federal judges – one where there has been some progress but where there is still room for improvement – is diversity of professional background. Judges who have worked as public interest or legal aid attorneys bring a perspective to the bench that is different from that brought by prosecutors and litigators representing corporate clients. One example of this professional diversity is Iowa’s Jane Kelly, who was recently confirmed to the Eight Circuit Court of Appeals with unanimous bipartisan support from the Senate. An Associated Press profile yesterday explained the important perspective that Kelly will bring to the federal bench  from her experience as a federal public defender:

The 48-year-old attorney has spent her career as a public defender representing low-income criminal defendants, a rarity in the ranks of appeals court judges who are often former prosecutors and trial judges. She'll become just the second woman in the 122-year history of the 8th U.S. Circuit Court of Appeals, which handles cases in seven states from Arkansas to the Dakotas.
…

Associates say she is a smart legal thinker who has zealously defended the rights of even the most publicly despised clients, including a notorious mailbox bombing suspect and the biggest white-collar criminal in Iowa history. Even prosecutors who disagreed with her in court praise Kelly, who will take the oath of office privately.

"Her story is compelling all the way around," said Debra Fitzpatrick of the University of Minnesota-based Infinity Project, which advocates for more women on the 8th Circuit. "Her credentials and her background and her career sort of set her up to be the right candidate at the right time."

…

A long-distance runner, Kelly's life almost ended when she went for a morning jog on the Cedar River Trail in June 2004. She was tackled and beaten by a male stranger, then dragged to a creek and left for dead. Passersby found Kelly in a pool of blood, in and out of consciousness and struggling to call for help. Speculation swirled that the attack was linked to Kelly's legal work, but no one ever was arrested.

Kelly quickly returned to representing criminal defendants after spending months in recovery. Her colleagues gave her the John Adams Award, which recognizes an Iowa lawyer's commitment to the constitutional right to criminal defense. And hundreds gathered one year later for a "Take Back the Trail" event, where Kelly jogged there again for the first time.

Kelly grew up in Newcastle, Ind., and graduated from Duke University in 1987. She earned a Fulbright scholarship to study in New Zealand before enrolling at Harvard, where she and Obama were acquaintances but not friends. She clerked for U.S. District Judge Donald Porter in South Dakota and then for Hansen.

She taught one year at University of Illinois law school before returning to Iowa as one of the first hires for the new public defender's office. She's been a fixture ever since, often representing "not the most popular person in the room," as she put it in her confirmation hearing, including drug dealers, pornographers and con artists.

Other pending nominees with public defender experience include Michael McShane (Oregon), Luis Felipe Restrepo (Pennsylvania), Jeffrey Schmehl (Pennsylvania), Rosemary Márquez (Arizona), and William Thomas (Florida).

The Senate Judiciary Committee yesterday approved the nomination of Sri Srinivasan to sit on the powerful Court of Appeals for the D.C. Circuit. There are currently four vacancies on the D.C. Circuit – and Senate Republicans have prevented President Obama from filling a single one.

The Senate GOP has been unusually cooperative with Srinivasan’s nomination, but have signaled that they will not be so friendly to future nominees to the court. Judiciary Committee ranking member Chuck Grassley is actually trying to permanently lower the number of judgeships on the court to prevent President Obama from reversing its far-right, anti-consumer, anti-worker tilt.

The Senate yesterday also confirmed William Orrick to serve on the District Court for the Northern District of California, a seat that had been officially designated a “judicial emergency” because of its overworked courts. The confirmation vote came a full eight months after Orrick was first approved with bipartisan support in the Senate Judiciary Committee.

In a Senate floor speech Wednesday, Sen. Elizabeth Warren of Massachusetts discussed the Senate GOP’s extraordinary obstruction of federal judicial nominees, noting the high level of officially-designated “judicial emergencies,” which has risen by 30  percent since the beginning of the year.

The Founders of our Republic gave to the President the task of nominating individuals to serve and gave us the responsibility to advise on and consent to these appointments. For more than 200 years this process has worked. 

Presidents over the years have nominated thousands of qualified men and women who were willing to serve in key executive branch positions.

The Senate has considered nominations in a timely fashion and taken up-or-down votes. Of course, there have been bumps along the way, but we have never seen anything like this. Time and again, Members of this body have resorted to procedural technicalities and flatout obstructionism to block qualified nominees.

At the moment, there are 85 judicial vacancies in the U.S. courts, some of which are classified as ``judicial emergencies.'' That is more than double the number of judicial vacancies at the comparable point during President George W. Bush's second term. Yet right now there are 10 nominees awaiting a vote in the Senate, and they have not gotten one.

Senate Republicans like to blame the judicial vacancy crisis on President Obama, whom they say has not been quick enough to nominate judges. Sen. John Cornyn of Texas ran into the fallacy of this talking point last week, when he was called out for blaming the president for Texas vacancies that Cornyn himself was responsible for. 

The president continued his steady pace of federal judicial nominations last night,  nominating four women to federal judgeships in Utah, Tennessee, New York and Mississippi. 

UPDATE: The White House points out in a blog post today that President Obama has now nominated more district court judges than had President Bush at this point in his presidency.

Americans of all political stripes should be outraged at the recent revelation that the Tea Party was unfairly targeted by the IRS before last year's election. The IRS should never base its decisions on political preferences or ideological code words, regardless of what bureaucratic challenges it may face. But the lesson that the right is drawing from the IRS's misdeeds -- the lesson that threatens to dominate the public conversation about the news -- is wrong.

We're seeing a knee-jerk reaction, particularly from the Tea Party and their allies in Congress, that is threatening to turn the IRS's mistakes into an indictment of "big government" writ large. Some are already trying to tie the scandal to the Right's favorite target, Obamacare, and to the Benghazi conspiracy theory.

The danger of this frame is that it will discourage the IRS from fully investigating all nonprofit groups spending money to influence elections. And it will distract from the core problem behind the IRS's mess: the post-Citizens United explosion of undisclosed electoral spending.

Before the Supreme Court's decision in Citizens United, only a limited number of nonprofit 501c(4) groups could spend money to influence elections -- those who did not take contributions from corporations or unions. But Citizens United lifted restrictions on corporate spending in elections, setting the stage for individuals and companies to funnel unlimited money through all corporations, including c(4)s and super PACs in an effort to help elect the candidates of their choice. Spending by c(4)s has exploded since Citizens United, since the decision allowed any c(4) nonprofit corporation that didn't spend the majority of its money on electoral work to run ads and campaign for and against candidates. And c(4)s, as long as they follow this rule, don't have to disclose their donors under the laws currently in place.

The IRS, then, was forced to play a new and critical role in policing this onslaught of electoral spending. IRS officials clearly made poor choices in how to confront this sudden sea change and those mistakes should be investigated and properly addressed. But strong oversight of this new wave of spending remains critically important and clearlywithin the IRS's purview.

If we let understandable concerns about bad decisions by the IRS lead to weakening of campaign finance oversight, our democracy will be the worse off for it. Instead, we should insist that the government strengthen its oversight of electoral spending -- equally across the political spectrum. We should pass strong disclosure laws that cover all political spenders, including c(4)s. And we should redouble our efforts to overturn Citizens United by constitutional amendment and reel back the flood of corporate money that led the IRS to be in this business in the first place.

This post originally appeared in theHuffington Post.