In Time of Crisis, Too Many Politicians Feed Fear and Scapegoating

This post originally appeared on the Huffington Post.

In the somber days since ISIS terrorists killed 130 people in coordinated attacks on Paris, elected leaders from around the world have been searching for solutions. But far too many American politicians have fallen back, instead, on that old standby in times of crisis: Stirring up fear and finding someone, anyone, to scapegoat, no matter how unconnected the scapegoated person is with the problem at hand.

Sadly, in Congress that took the form of a House vote to in essence stop the U.S. resettlement of refugees from Iraq and Syria by imposing nearly impossible bureaucratic requirements on what is already the toughest vetting system for anyone seeking entry into the U.S. This bill was scapegoating in its purest form, framing as terrorists people who are fleeing the very violence that this bill was supposedly trying to prevent. 

The House vote -- in which 47 Democrats joined nearly every Republican -- was the culmination of a week of cowardice and bigotry sweeping the political landscape.

There was the Missouri state legislator who urged his governor to watch out for "all flavors" of Muslims and the mayor of Roanoke who invoked the internment of Japanese-Americans during World War II as a positive model for how to treat American Muslims. 

And there were the 31 governors who declared that their states would turn away Syrian refugees who go through the U.S. refugee resettlement program. 

Not wanting to miss out on the action, of course, Republican presidential candidates have been tripping over themselves to outdo one another. Donald Trump hasspeculated that refugees from Syria "could be one of the great Trojan horses." Mike Huckabee, in what can't even be described as a dog-whistle, has told Americans to "wake up and smell the falafel" when it comes to Syrian refugees. Chris Christie saidhe'd get tough on Syrian orphans. Ted Cruz has suggested that the U.S. only admit Christian refugees from Syria, although how he plans on testing people's religious faith is unclear. Jeb Bush has hinted at the same thing, saying he would back refugees who can "prove" that they're Christian, which shows what this is all about. If you have a system that's strong enough to "prove" someone's true religion, don't you think it could also properly vet people for national security purposes? Jeb Bush was supposed to be the mature establishment candidate. So much for that.

These politicians are feeding what a new Public Religion Research Institute pollreports is an "increased xenophobic streak in the American public." It's no coincidence that threats against American Muslims have been reported across the country in the days since the Paris attacks.

It is of course reasonable to ask that refugees be vetted -- they already are -- but if security were the real issue, our current debate wouldn't be about refugees at all. In fact, if someone were intent on sneaking into America to cause harm, exploiting the refugee resettlement program with its intensive and lengthy screening processes would be the hardest way to do it. No, what is behind the anti-refugee campaign of the Right is not reasonable concerns about security, but something much uglier.

The candidates who are now spewing cynical anti-refugee rhetoric are often the same ones who claim that their opponents don't believe in "American exceptionalism," and the movement so willing to embrace explicit anti-Muslim bigotry is the same one constantly telling us that religious freedom is under attack. They seem to have forgotten the vibrant pluralism and commitment to shared values that make us exceptional, and a beacon of freedom to the persecuted, in the first place. Looking back on the history of our country, our best days have been when we opened ourselves to people facing persecution, not the times we turned them away and demonized them. Let's not let this become the American Way.


PFAW Telebriefing: The Future Of Voting Rights

Last week, People For the American Way hosted a telebriefing for members to review the recent attacks on voting rights and illustrate PFAW’s vision for the future of voting rights in America. PFAW Communications Director Drew Courtney moderated the discussion with PFAW’s Director of Outreach and Public Engagement Diallo Brooks, Executive Vice President Marge Baker, and resident Supreme Court and judicial nomination expert Paul Gordon joining the call.

Drew began the call with an introduction to the consequences of the Shelby County v. Holder Supreme Court case, which gutted key provisions of the Voting Rights Act. The decision has resulted in many states passing new legislation that results in voter suppression. Diallo explained that 36 states have passed new restrictions on early voting and more strict voter identification laws, which disproportionately affect people of color, low-income citizens, and women. Supposedly, these efforts attempt to prevent voter fraud. However, voter fraud is not documented as a widespread, or even small-scale, problem anywhere in the country. Marge later elaborated that there is evidence that true intention of passing these laws is to suppress the vote; many right-wing organizations have acknowledged that conservative leverage in elections goes up as the voting populace goes down.

Many members called in with pertinent questions, including one about how members can be more involved in the fight for voting rights. Diallo described how People For the American Way Foundation’s African American Ministers network has been active on the ground helping folks understand their local laws so that they can obtain the correct identification and register successfully. He also suggested people get involved in local groups that do similar work.

Marge detailed how people can get involved in PFAW’s efforts to fight for fair and just courts, which have an enormous impact on voting rights. The winner of the 2016 election will have the opportunity to nominate as many as four Supreme Court justices, and therefore have influence over critical voting rights cases following Shelby County v. Holder. The Supreme Court is not the only place where the fight is occurring. Marge described court challenges to voter suppression laws in numerous lower federal courts and in state courts, further highlighting the importance of courts in the progress for voting rights.

Diallo ended the call on a positive note, describing recent municipal and state-level expansions to early voting and motor voter laws, which allow citizens to automatically register to vote when they interact with the Department of Motor Vehicles.

Listen to the full briefing here:


Clean Elections Win in Connecticut Shows Power of Movement to Fight Big Money

Following an outcry from a range of local and national leaders, including PFAW president Michael Keegan, Connecticut legislators withdrew a plan yesterday that would have cut funding for the state’s clean elections law.

Connecticut’s landmark program is a model for the country, one that has allowed people to run for office and become elected officials even if they don’t have access to special interest money or wealthy backers. When the proposed attack on clean elections was announced, the pushback was swift. A cohort of young Connecticut lawmakers, many of whom are members of affiliate People For the American Way Foundation’s Young Elected Officials Network, spoke out against the proposal in a letter. They highlighted the clean election program’s success in allowing young people to compete in the state’s elections “based on policy positions and ideas” rather than “who has access to the biggest donors.” PFAW members in Connecticut made calls to their state legislators and asked them to reject any plan to undermine clean elections. State groups like Common Cause Connecticut and ConnPIRG rallied against it, and former Gov. Jodi Rell, who signed the landmark reform into law, spoke out against attempts to “turn aside” the program “many of us worked so hard to put in place to prevent political corruption scandals.”

That the proposal was withdrawn after just three days is a win not only for the state of Connecticut, but for the national movement to fight big money in politics. From clean elections victories in Seattle and Maine earlier this month to yesterday’s win in Connecticut, it’s clear that policies to help lessen the influence of big money in politics are popular, valued, and people will fight for them.


Will Nebraska's Senators Help Our Federal Courts?

Nebraska has a judicial vacancy that has been open for more than a year, leaving fewer judges available to handle the state’s relatively heavy caseload.  Fortunately, there is a fully vetted nominee with strong bipartisan support who could fill that slot today.  Unfortunately, Robert Rossiter is stuck in the middle of a bottleneck deliberately engineered by Senate Republicans.  The question is whether Senators Deb Fischer and Ben Sasse, both Republicans, will exercise their influence with party leadership to clear up that bottleneck for the benefit of their fellow Nebraskans and the rest of the country.

At Rossiter’s confirmation hearing, Sen. Fischer spoke about urgency of filling the vacancy as soon as possible:

[Nebraska has] the most per-judgeship weighted filings among the eight states that have only three authorized judgeships and a single federal district.  With a small bench and a full docket, it is important that this federal district court is operating at full capacity.  Despite this fact, however, the judgeship that Bob has been nominated for has been vacant for more than a year.  [T]his court must be provided with the necessary resources to work efficiently[.] … I urge my colleagues to support Bob Rossiter’s nomination quickly so that he can put his outstanding intellect, skill, and judgement to work for the American people.

However, Majority Leader Mitch McConnell has needlessly forced all of President Obama’s nominees to wait for floor votes far longer than necessary, creating a bottleneck that delays everyone.  He has allowed only ten judicial confirmation votes so far this year, an absurdly small number that has caused judicial vacancies and judicial emergencies to skyrocket since Republicans took over the Senate.

When McConnell finally schedules a vote on a circuit or district court nominee, it has been in the order that they came out of the Judiciary Committee (and, when nominees advance on the same day, the order that they are listed on the Senate Executive Calendar).  Rossiter has many nominees ahead of him in the list of circuit and district court nominees currently waiting for a floor vote:

  1. L. Felipe Restrepo (PA, Third Circuit) – July 9
  2. Travis McDonough (TN) – July 9
  3. Waverly Crenshaw (TN) – July 9
  4. Wilhelmina “Mimi” Wright (MN) – September 17
  5. John Vazquez (NJ) – September 17
  6. Paula Xinis (MD) – September 17
  7. Brian Martinotti (NJ) – October 29
  8. Robert Rossiter (NE) – October 29
  9. Edward Stanton (TN) – October 29
  10. Rebecca Goodgame Ebinger (IA) – November 5
  11. Leonard Strand (IA) – November 5
  12. Julien Neals (NJ) – November 5
  13. Gary Brown (NY) – November 5
  14. Mark Young (CA) – November 5

So if Sens. Fischer and Sasse want to get help to the overburdened Nebraska federal court as soon as possible, they need to do more than just press McConnell to schedule a confirmation vote for Rossiter.  If they want to help their constituents in Nebraska, they need to press McConnell to immediately allow votes on all those judicial nominees ahead of Rossiter.  Like all 14 pending nominees, they have been fully vetted and face no opposition.  In fact, all 14 could and should be confirmed immediately.

There is no good reason that Fischer and Sasse can’t make sure Rossiter is confirmed by the time they go home for Thanksgiving.


Latinos Vote! Dolores Huerta’s Four-State Tour with PFAW

Over a two-week span, People For the American Way (PFAW) staff and volunteers joined PFAW board member Dolores Huerta for a four-state tour to get out the vote in Latino communities and push back against anti-immigrant, anti-Latino rhetoric and policies of Republican presidential candidates.

Huerta attended the last two Republican debates, spreading the message that all of the Republican candidates stand firmly against the priorities of working families and Latino communities. At the start of our tour, leading up to the debate in Colorado at the end of October, Huerta joined Colorado Latino leaders and voters to discuss how the Republican candidates are out of line with Colorado Latinos.

latin life denver

latin life denver

Huerta also spoke at a rally that thousands attended. As Suzanne Gamboa at NBC News reported:

“Huerta planned to participate in an event with other Latino leaders Wednesday afternoon to launch a voter registration campaign and protest rhetoric of the campaign and some proposals she considered to be anti-Latino.

[…]"The Republican candidates are not really reflecting or even addressing the needs of the Latino community or American families," Huerta said in an phone interview with NBC News.

After Colorado, Huerta traveled to Charlotte, North Carolina to get out the vote leading up to municipal elections and to call out North Carolina Governor Pat McCrory for signing the severely anti-immigrant HB 318.

After her third radio interview of the morning – which also happened to be the day before Halloween – Huerta posed with the radio hosts of Charlotte’s La Raza 106.1.

la raza

Huerta joined Charlotte voters and activists to deliver an “award” to Gov. McCrory for his ability to disguise himself as a friend of immigrants and then to turn his back on the community.


After Charlotte, Huerta joined PFAW staff and volunteers to get out the vote in Virginia. PFAW had already begun laying the groundwork in Virginia with Spanish-language ads encouraging voters to head to the polls on Election Day.

The Washington Post’s write-up of the ad included this explanation from PFAW’s Carlos A. Sanchez:

“By highlighting in Spanish how local and national Republican politicians from [former Virginia gubernatorial candidate] Ken Cuccinelli to Donald Trump have demonized immigrants, our ad urges voters to stand up against them by going to the polls."

While on the ground, Huerta mobilized voters and volunteers in State Senate District 29 to support Democrat Jeremy McPike.

Our efforts paid off, as McPike won his race!

To wrap up our four-state tour, Huerta traveled to Wisconsin leading up to the Republican debate there. PFAW joined with Voces de la Frontera Action to shed light on the anti-immigrant, anti-Latino policies of all the Republican candidates.

dolores press conf

Huerta also joined with allies for a Fight for $15 rally urging politicians to support a $15 minimum wage. Watch Huerta discuss her efforts on local CBS.

The 4-state tour is a part of PFAW’s Latinos Vote! program. Stay tuned for more updates on our work!


Justice Scalia's Ironic Comments About Democracy

Justice Antonin Scalia had some interesting things to say at a speech yesterday to Georgetown University law students.  The Washington Post reports on Scalia’s response to a question about minority rights:

But a question about whether courts have a responsibility to protect minorities that cannot win rights through the democratic process — the issue that animated the court’s landmark decision this year on same-sex marriage — brought a caustic response.

“You either believe in a democracy or you don’t,” Scalia said. “You talk about minorities — what minorities deserve protection?”

Religious minorities are protected by the First Amendment, Scalia said, and so are political minorities. But beyond that, he asked rhetorically, what empowers Supreme Court justices to expand the list.

“It’s up to me to decide deserving minorities?” Scalia asked. “What about pederasts? What about child abusers? So should I on the Supreme Court [say] this is a deserving minority. Nobody loves them.”

“No, if you believe in democracy, you should put it to the people,” he said.

No, Justice Scalia, if you believe in democracy governed by the Bill of Rights, people have rights that cannot be violated by majorities.  The majesty of the Equal Protection Clause is that it was intentionally written broadly, rather than being limited to certain people.  And it doesn’t have a clause saying “except for gay people.”

In addition, given Scalia’s caustic dissents in cases recognizing the constitutional equality and basic humanity of gay people, it is hardly a surprise that he answered a question implicating LGBT equality by dragging in pederasts and child abusers.  From a legal perspective, can he really not see any difference between protecting innocent but unpopular people who aren’t harming anyone, and policies designed to prevent adults from committing acts of violence against unwilling children?

Legal comparisons aside, why bring up child molesters at all?  For far too long, far right extremists have long peddled the pernicious lie that gay people are inherently a threat to children.  Why did Scalia’s mind go there?  Surely there are other categories of people he could have mentioned to make the same point.

Scalia’s comment about believing in a democracy also has to be taken in context: He voted with the 5-4 majorities in Citizens United (opening up our elections to unlimited corporate and special-interest money) and Shelby County (gutting the heart of the Voting Rights Act and empowering those who seek to win elections by disenfranchising Americans who might vote against them).  And, of course, he was with the 5-4 majority in the ultimate judicial middle finger to democracy, Bush v. Gore.

At the heart of our democracy is the right to vote in free and fair elections.  That means elections without barriers designed to keep the “wrong” people from voting, and elections where the voices of ordinary people are not drowned out by a tiny sliver of phenomenally wealthy and powerful interests.  That is what a healthy democracy looks like, and it makes Scalia’s comments quite ironic.

PFAW Foundation

On Judges, GOP Senate Finally Breaks Into Double Digits

The Senate is scheduled to vote to confirm New York district court nominee LaShann DeArcy Hall late this afternoon.  She will only be the tenth judge confirmed this year, even though it’s already the week before Thanksgiving.

What explains this ridiculously low number?

It isn’t because this is the first year of a new administration, so that nominations weren’t made until several months into the year.  In fact, when the Senate convened this year, the Judiciary Committee immediately had eleven circuit and district court nominees from last year to consider, one of them being DeArcy Hall.  She isn’t the only 2014 nominee who still hasn’t been confirmed: Third Circuit nominee L. Felipe Restrepo is still waiting for a confirmation vote.

The low number of judicial confirmations also isn’t because the nominees are controversial.  Almost all of them faced no opposition whatsoever in the Judiciary Committee or on the Senate floor.  But that didn’t stop Republicans from slow-walking them at every step of the way.

Take Restrepo, for instance: He has the support of both his home state senators, one a Democrat and the other a Republican.  He had been unanimously confirmed to a district court judgeship in 2013, so the Senate had already done a thorough and recent vetting of his background.  Yet Senator Pat Toomey and Chairman Chuck Grassley collaborated to delay Restrepo’s committee hearing until seven months after his nomination.  He impressed the members of the Judiciary Committee and demonstrated to each one of them that he was highly qualified to serve on the Third Circuit, yet Grassley delayed a committee vote for two weeks without an explanation.  And for the more than four months since then, day after day after day, GOP leadership has refused to schedule a confirmation vote to let an unquestionably qualified jurist fill a vacancy that has been formally designated a judicial emergency.  Now more than a year has gone by since his nomination.

The low number of judicial confirmations also can’t be explained by a lack of need for judges.  Restrepo is hardly the only slow-walked nominee this year who would fill a judicial emergency.  In fact, the number of judicial emergencies nationwide has skyrocketed from 12 at the beginning of the year to 29 today (after DeArcy Hall is confirmed).  Similarly, the number of circuit and district court vacancies has risen dramatically, from 40 at the beginning of the year to 62 after today’s confirmation.

Even if every vacancy were to be filled tomorrow, there would still not be enough judges to ensure every American’s opportunity to have their day in court.  Judges are so overwhelmed that the Judicial Conference of the United States recommended in March of 2015 that Congress create five new circuit court seats and 68 new district court seats (as well as make permanent nine district court seats that are now temporary).  So filling vacancies is a priority.

Or at least it should be, if you value having an effectively functioning federal court system with fair, independent, and unbiased judges ensuring that everyone’s rights are protected.

But the Republicans’ strategy since President Obama took office has been to gum up the works as much as possible, to make the confirmation process as slow as they can get away with in order to maximize the number of vacancies available for the next (Republican) president to fill.  This has damaged our courts and coarsened our politics.

In addition to DeArcy Hall, there are 14 other circuit and district court nominees ready for a vote.  There is no reason not to act on every single one of them before the Thanksgiving recess.


SCOTUS Takes Up Most Significant Reproductive Rights Cases in Decades

This post originally appeared on the Huffington Post.

The Supreme Court announced today that it will decide on the constitutionality ofsevere restrictions adopted in Texas that threaten to make it virtually impossible for many women there to obtain safe and legal abortions.

Coupled with the Court's recent decision to hear cases on whether certain employers can effectively deny their female employees the contraceptive coverage they are entitled to receive under the Affordable Care Act (ACA), the 2015-16 Supreme Court term could well become the most significant for women's reproductive rights since the Court upheld the right to choose in Planned Parenthood v. Casey in 1992 -- and almost as significant as when the Court overturned a law banning contraception 50 years ago in Griswold v. Connecticut.

The Texas case, Whole Woman's Health v. Cole, concerns a law imposing restrictions on clinics so severe that they would reduce the number of clinics that perform abortions in the state from more than 40 a few years ago to just 10, including none at all in the 500 miles between San Antonio and the New Mexico border. The state has claimed that the limits, requiring extensive hospital-like equipment and doctors with hospital admitting privileges even for clinics that offer abortions only through oral medication, are important to protect women's health.

These claims are belied not only by the medical evidence, but also by Texas politicians'; statements, such as Governor Rick Perry's vow to "pass laws to ensure" that abortions are "as rare as possible."

That law clearly violates the 5-4 ruling of the Court in Casey, which upheld the basic right to choose of Roe v. Wade, and held that such laws must truly be important to protect women's health and not impose an "undue burden" on that right. Will the Court uphold and correctly apply Casey and continue to protect reproductive rights? Given the stark divisions on the Court, the answer may well come down to the vote of Justice Anthony Kennedy, the last member of the five-person Casey majority who is still on the Court today.

The Court has also agreed to hear what many are already calling "Hobby Lobby II." Last year, the Court ruled 5-4 that owners of for-profit companies like Hobby Lobby could use the Religious Freedom Restoration Act (RFRA) to raise religious objections and exempt themselves from providing contraceptive coverage to female employees as required by the ACA. To do so, the Court suggested that the companies could use the opt-out mechanism available to religiously-affiliated colleges and other nonprofits and inform the government of their religious objections, so the government could arrange for insurers to provide the coverage without cost to the employer.

Now, however, many of these nonprofits are claiming that the opt-out mechanism itself violates RFRA. In other words, they want to not just refuse to provide contraceptive coverage to their employees, they also want to make sure the government cannot make other arrangements, so that the women will be deprived of contraceptive coverage guaranteed by the ACA.

Seven out of eight lower federal appeals courts have rejected these claims, ruling that simply telling the government of their objections and the identity of their insurer is not a "substantial burden" on nonprofits' religious free exercise under RFRA and that the government has a compelling interest in providing contraceptive coverage.

Justice Kennedy, who provided the fifth vote in Hobby Lobby, suggested in a concurring opinion that the opt-out was an appropriate accommodation. But if the Court upholds the nonprofits' objections in Zubik v. Burwell, the result will be devastating to the ability of women to get contraceptive coverage, especially since for-profit companies like Hobby Lobby will likely make the same claim that religion allows them also to completely deprive their female employees of contraceptive coverage. Although not as coercive as the Connecticut ban on contraceptives overruled in Griswold, the result could well be even more devastating to reproductive freedom across the country, allowing employers to transform RFRA from a shield to protect religion into a sword to harm reproductive rights.

Both the clinic and the contraceptive cases are highly likely to produce divided 5-4 decisions that will be enormously important to women' reproductive rights. With four of the justices in their 80s during the term of the president elected next year, these cases once again demonstrate the crucial stakes in the 2016 election for reproductive rights, as well as for so many other rights central to our liberty and freedom.


Koch Communications Officer Delivers Spin to St. Anselm’s College, Activists Call Out #KochProblem

koch visibility event

It’s not just secret money and front groups for the Koch Brothers this election season. Sometimes, the Kochs are up front in their attempts to sell their toxic agenda — like when they decide to send Koch Industries Chief Communication and Marketing Officer, Steve Lombardo, to St. Anselm’s Institute of Politics to pitch a softer side of Koch.

A group of about 10 activists from People For the American Way and Granite State Progress gathered Tuesday outside the Institute of Politics to hold signs that read “#KOCH PROBLEM” and “PR Stunt” — among other messages.

The event was brazenly titled, “Beyond the Political Spin: How Koch is is Driving Freedom, Fairness and Prosperity."

The Kochs — no strangers to attempting to buy support at college campuses through stipulations about hiring and coursework — are planning on spending up to $900 million in this year’s election cycle through their secretive network of organizations.

When asked if the Kochs will acknowledge that the candidates they back are beholden to them, Lombardo failed to explain a difference between other forms of “crony capitalism” the Kochs like to decry and the political work done by the Koch network.

Question: “In a recent interview with the Wichita Eagle, Charles Koch claimed that politicians are ‘beholden to corporations and cronies who get them re-elected’ and deemed this ‘welfare for the wealthy.’ The Koch network has poured millions of dollars into our political system—do the Kochs agree that the candidates they back are beholden to them?”

Lombardo: “Yeah, that’s a great question. I’m going to answer it the way Charles has recently answered that. And that is – beholden is the wrong word. Charles is frustrated right now, to be honest with you, he’s very frustrated that a lot of the candidates that the network that he’s a part of, along with a lot of other donors, hundreds of donors, thousands…have not done a lot of things that they said they were going to do, okay. And he’s quite frankly very frustrated and we have not at this point in time, supporting any presidential candidate. And Mr. Koch believes- is worried right now that none of them are going to do what they say they’re going to do.  So the folks that we supported in 2014 frankly a lot of them have not lived up to the things that I’ve been talking about in terms of fighting corporate welfare, in terms of supporting criminal justice reform among other things. Beholden is wrong. We all, everybody who votes for someone or contributes money to them, contributes $5 — you’re hoping that they’re gonna do what they said they were gonna do. Now if you call that beholden you can call that beholden, but to me, it’s I give $5 to a candidate because I think — they said they were gonna do something, and I go ‘wow, I agree with that, I want them to do that, I’m giving them $5.’ Now you can call that beholden, or $500 million or whatever it might be…I don’t think it’s the same way but we are expecting them to do the things they say they were gonna do, and frankly a lot of them aren’t.”

The Kochs clearly expect a lot in return for the amount they’re spending on politics — so yes, the candidates that they back are beholden to them, and much more so than they would be to any small donor.  Downplaying their own effectiveness doesn’t change the fact that they are blatantly attempting to buy influence, with their network expected to spend as much as, or more than, either political party.


Pat Toomey's Insulting Explanation for Withholding Blue Slips

Pennsylvania’s Republican Senator Pat Toomey has been harshly criticized for collaborating with his party’s efforts to obstruct Third Circuit nominee L. Felipe Restrepo a judicial nominee from Pennsylvania who Toomey says he supports.  The senator now appears to be doing the same thing with several Pennsylvania district court nominees who he himself actually recommended to the White House.

Specifically, he is refusing to submit the “blue slips” for Eastern District nominee John Younge, and for Western District nominees Robert Colville, Susan Paradise Baxter, and Marilyn Horan.  All four were recommended by both Toomey and his Democratic colleague, Bob Casey.  When the White House nominated them back in July, both senators praised them.  However, only one of the senators actually did something to move the nominations: Casey swiftly submitted his “blue slips,” which is how senators signal that they don’t object to the Judiciary Committee considering a judicial nominee from their state.  Blue slips aren’t part of Senate or committee rules; they are simply a courtesy of the chairman, who decides for himself the importance he gives them.  Under current practice, the chairman won’t schedule a hearing until he gets blue slips from both  home state senators.

In the nearly five months since the four Pennsylvanians were nominated upon Toomey’s recommendation, he has refused to submit his blue slips.  When a reporter from the Butler Eagle asked for an explanation, he was told that Toomey was waiting for the committee to complete its background investigation of the nominees.  This is the same line he eventually settled on with Restrepo, an explanation that was full of holes and simply not believable.  Nor is it any more believable now.  From the Butler Eagle:

According to a Toomey staffer, the senator will not submit the blue slip for any judicial candidate until the investigation is done, just to make sure the candidates’ backgrounds are clear. If any problems turn up in the investigation and the blue slip already is turned in, there is nothing to stop a vote on the nominee, the staffer said.

That’s simply false.  Just ask Steve Six, a Tenth Circuit nominee from Kansas in 2011, when Democrats held the Senate majority.  Republicans home state senators Pat Roberts and Jerry Moran submitted their blue slips, and Six had a confirmation hearing.  But afterward, the senators rescinded their blue slips.  Then-Chairman Patrick Leahy, who supported the nominee, was not at all happy about this.  Nevertheless, he chose to accede to the home-state senators’ modified wishes, and he never held a committee vote for Six, which essentially ended the nomination.

Does Toomey really think the current chairman, who is of his own party, would not show a similar courtesy to Toomey that Democrat Patrick Leahy showed to the Republican senators from Kansas?  Chuck Grassley might not appreciate Toomey’s lack of faith in him.

Or perhaps Toomey is assuming his constituents won’t realize that the story he is peddling makes no sense.

With Restrepo and four district court nominees, Toomey continues to collaborate with Washington, DC party leaders to obstruct judicial nominees he says he supports.  Individuals and businesses in Pennsylvania who rely on a functioning court system are the ones who pay the price.


An Anniversary Pat Toomey Should Be Ashamed Of

Today is the one-year anniversary of the nomination of L. Felipe Restrepo to the Third Circuit Court of Appeals.  That Restrepo hasn’t yet been confirmed says volumes about Senate Republicans, and especially Pat Toomey.

When Restrepo was nominated, both of his home state senators – Democrat Bob Casey and Republican Pat Toomey – released enthusiastic statements of support.  Unfortunately, only one of them matched his words with deeds.  Casey submitted his “blue slip,” signaling his approval for the Judiciary Committee to take up the nomination.  Toomey didn’t.  That’s critically important, because under current practice, the chairman won’t schedule a hearing let alone hold a committee vote without blue slips from both  home state senators.  So as Toomey sat on his hands, month after month went by with no hearing for Restrepo.  As winter turned to spring, people were wondering where Toomey was on Restrepo’s nomination.

In early May, as the Huffington Post’s Jen Bendery reported, Chairman Chuck Grassley said he’d hold a hearing once Toomey got his blue slip in.  When Pennsylvania constituents with the National Council of Jewish Women tried to meet with Toomey’s office to ask why he was blocking Restrepo, they were turned away.

Within a few days came a slew of bad in-state press for the senator, including articles in the Philadelphia Inquirer ("A judicial nominee waits; Toomey gets blamed"), the (Allentown) Morning Call ("What's Holding Up a Pa Appeals Court Nominee?"), the Pittsburgh Post-Gazette ("Confirmation Vote on Pennsylvania Jurist Awaits 'Blue Slip' from Toomey"), and the Legal Intelligencer ("Political Maneuvers Holding Up Nominee for Third Circuit"). Toomey's obstruction of the man who would be only the second Latino judge ever on the Third Circuit (and the first from Pennsylvania) has also prompted coverage in the Latin Post ("Democrats, National Groups Urge GOP Senators to Expedite Nomination Process of Judge Luis Felipe Restrepo After Delays"), criticism from leading civil rights figure and PFAW Board member Dolores Huerta ("Toomey and Republicans: Do Your Job, Confirm Restrepo"), and a request from the Hispanic National Bar Association that Toomey urge the Judiciary Committee to swiftly consider the nomination.

Toomey finally broke his silence and blamed Grassley, saying that he was waiting for the committee’s background investigation to be completed, an explanation that didn’t pass the laugh test.  After all, Restrepo already had a thorough background investigation for his confirmation to the district court in 2013, so why would it take so long to complete one to cover only the short interval since then?  And why didn’t Toomey mention this when he had been asked about it earlier?  Nor had Grassley said anything about this initially.  After this embarrassment, the two Republican senators coordinated their stories more effectively (as has been the case with Grassley and the other GOP Senators who, unlike their Democratic counterparts, withhold their blue slips for months).

Finally, Toomey submitted his blue slip on May 14, half a year after the nomination.  By this time, the vacancy had been formally designated a judicial emergency, and it became known that a second vacancy would be opening on the court during the summer.  Fortunately, there was time for Chairman Grassley to schedule a hearing for Restrepo before the Memorial Day break.  And perhaps he would have done so, if Toomey had made any effort to make it happen.  In fact, with Toomey’s acquiescence, the hearing was delayed until June 10, nearly a full month after Toomey had submitted his blue slip.

But that didn’t end the delays.  The next step in the confirmation process is the committee vote.  Grassley put a Restrepo vote on the agenda for late June, which was great.  However, Grassley has routinely exercised the right to hold over a vote on a nominee without cause, and his staff signaled he would do this to Restrepo (again, with no explanation as to why).  This gave Toomey plenty of time to do what his constituents were asking him to do: step up and ask Grassley not to needlessly delay advancing Restrepo to the full Senate.  Unfortunately, when asked if Toomey would talk to Grassley, Toomey’s office ducked the question, saying that the Pennsylvania senator isn’t a member of the committee and does not control the scheduling of votes.  Of course, senators routinely speak to their colleagues to help advance home-state nominees who they support.  No one was tying Toomey’s hands but himself.

Finally, on July 9, eight months after being nominated, Restrepo was approved by the committee by unanimous voice vote.  At that point, it was up to Toomey’s fellow Republican, Majority Leader McConnell, when to hold a confirmation vote.  With Toomey’s help, the Senate could have confirmed Restrepo quickly, and certaily before the summer recess would begin a month later.  It soon became clear, however, that Toomey was not pressing McConnell on timing on a vote, and the senators left town until September.

And now here we are, in mid-November, and Restrepo remains unconfirmed, the result of Toomey’s collaboration with his party leaders to obstruct judicial nominations as much as possible. For individuals and businesses in Pennsylvania (as well as New Jersey and Delaware, the other two states within the Third Circuit), having two vacancies unfilled means not having timely access to justice.  This judicial emergency could have and should have been filled many months ago.

Restrepo was nominated one year ago today.  It is an anniversary that Pat Toomey should be ashamed of.


5th Circuit Immigration Ruling Shows Importance of Courts & Elections

Yesterday, a sharply divided three-judge panel of the Fifth Circuit ruled against the legality of the Obama Administration’s Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”), as well as the expansion of the Deferred Action for Childhood Arrivals program (“DACA”). 

The majority opinion was written by Judge Jerry Smith, who was nominated to the court in 1987 by President Ronald Reagan.  Millions of people across the country will be harmed by this ruling, which came out the way it did because of whom Americans decided to elect for president 31 years ago.  Joining the majority was a George W. Bush nominee, Judge Jennifer Walker Elrod. It is a powerful reminder that one of the most important issues in any presidential election is the type of judges the person elected to the office would place on the bench to decide on our most basic legal rights .

Judge (and Jimmy Carter nominee) Carolyn Dineen King authored a dissent that even the majority praised.  As she pointed out, there are about 11.3 million undocumented immigrants in the United States who the law says should be removed from the country, but Congress provides resources to remove only a tiny fraction of them.  Any presidential administration would have to have broad prosecutorial discretion in deciding how to allocate those resources.  But on top of that, Congress specifically gave the president broad authority to establish policies and set priorities in how to allocate those scarce resources.  That is exactly what the Obama Administration has done in the DAPA program.  No wonder that so many legal scholars have concluded that the program is legal.

But the majority disagreed.  They upheld the district court’s conclusion that DAPA required a period of public notice and comment before going into effect, under the Administrative Procedure Act.  In addition to the procedural issue, they chose to address a substantive legal question not answered by the lower court, concluding that DAPA is foreclosed by federal statutes governing immigration.  So even a formal comment period would not save the policy, in their eyes.  (They did not rule on any constitutional issues.)

The majority did not argue that the Department of Homeland Security lacks the authority to defer deportation for those covered by DAPA … as long as those deferred don’t have the right to work legally, have Social Security benefits, obtain driver’s licenses, etc.  The court majority concluded that the granting of such benefits to millions of undocumented immigrants is inconsistent with congressional intent.  Judge King disagreed, writing that Congress has given enormous discretion to the president to set enforcement priorities for deferred deportation, and that the positive consequences of deferred deportation were written into the law long before DAPA came about.

The dissent stated that “this case essentially boils down to a policy dispute,” one that, under existing law, is appropriately resolved via the political process.  Indeed, it is legal and not political arguments that should carry the day in our nation’s courts.  Yet this court case began when Republican governors chose to file their lawsuit in Brownsville, Texas, so they could have it decided at the district level by Judge Andrew Hanen, whose intense political disagreement with the federal government’s immigration enforcement policies has infected his judicial opinions.

It is also hard to forget the greater context in which the political debate is occurring.  Republican officials across the country have loudly and forcefully condemned DAPA.  This is the same party whose base has become sharply anti-Latino over the past few years.  It is also a party with a leading presidential candidate calling for rounding up 11 million immigrants and kicking them out of the country.  The other Republican presidential candidates have hardly repudiated that as unacceptable; to the contrary, they have all promised to endorse Donald Trump’s candidacy should he be the party’s nominee.

As PFAW Board member Dolores Huerta said this morning:

Because of Republican-appointed judges on the court, families who have lived in and contributed to our country for years could be torn apart. Yesterday’s 2-1 decision from the 5th Circuit Court was fundamentally incorrect. It is a reminder of how much courts matter, as well as how important presidential elections are, since it’s the president who nominates justices.

While every single one of the Republican presidential candidates has spoken out against President Obama’s executive actions, Democratic candidates have discussed ways to expand his actions to protect people from deportation. Latino communities across the country are listening, and in the next election we’ll hold Republican candidates responsible for their efforts to break up families.


PFAW Board Member Dolores Huerta Speaks Out for DACA+, DAPA

People For the American Way board member and civil rights legend Dolores Huerta speaks out against the 5th Circuit Court decision holding up President Obama's executive actions that protect families from deportation:

“Because of Republican-appointed judges on the court, families who have lived in and contributed to our country for years could be torn apart. Yesterday’s 2-1 decision from the 5th Circuit Court was fundamentally incorrect. It is a reminder of how much courts matter, as well as how important presidential elections are, since it’s the president who nominates justices.

“While every single one of the Republican presidential candidates has spoken out against President Obama’s executive actions, Democratic candidates have discussed ways to expand his actions to protect people from deportation. Latino communities across the country are listening, and in the next election we’ll hold Republican candidates responsible for their efforts to break up families.”


Grassley's Moves Against Democratic Senators' Judicial Nominees

Since Republicans took over the Senate, they’ve used their control of the Judiciary Committee (through Chairman Chuck Grassley) and of the Senate floor (through Majority Leader Mitch McConnell) to make the consideration of judicial nominees as slow as possible.  That only nine have been confirmed this year is ridiculous, and it is why judicial vacancies and emergencies have skyrocketed since the start of the year.

But there’s been hope, in the form of two nominees from Iowa who were recommended to the White House by Chuck Grassley.  One of them (Rebecca Goodgame Ebinger) is President Obama’s most recent nominee, having been nominated on September 15.  Grassley wants both Iowans confirmed quickly.  Since Grassley promised to process nominees in the order he received them last spring, he should have pulled out the stops to process all the other nominees so the committee could quickly get to Ebinger.

But that isn’t what’s happened.  Instead, Grassley leapfrogged her over ten longer-waiting district court nominees for the one and only judicial nominations hearing he held last month.  Some of those nominees are from states with at least one Republican senator, where he can count on them to delay submitting their blue slip for months, a way the GOP can slow down the process as much as possible.  (For an example of how this works, just ask Pennsylvania’s Pat Toomey.)  But four of the skipped nominees come from states with two Democratic senators, who – wanting to see their recommended nominees confirmed as soon as possible – had turned in their blue slips early on:

  • Inga Bernstein (Massachusetts), nominated July 30
  • Mary McElroy (Rhode Island), nominated September 8
  • Stephanie Gallagher (Maryland), nominated September 8
  • Clare Connors (Hawaii), nominated September 8

Grassley hasn’t held another judicial nominations hearing since then, so they are still waiting.

In the meantime, the committee last week advanced Ebinger and four other nominees to the full Senate.  In the order they were nominated, they are:

  • Julien Neals (New Jersey), nominated February 26
  • Mark Young (California), nominated July 16
  • Leonard Strand (Iowa), nominated July 21
  • Gary Brown (New York), nominated July 30
  • Rebecca Ebinger (Iowa), nominated September 15 (and the only one of these five that is not a judicial emergency)

But even here, Grassley found a way to leapfrog his nominees.  Since the Senate has been voting (albeit ridiculously slowly) on nominees in the order they’ve come out of the Judiciary Committee, a judicial nominee’s chances of getting a vote from the GOP-controlled Senate by year’s end are likely higher if they are listed ahead of the Iowa nominees.  A press for floor votes for both Iowans should help those ahead of them in line: Not just the nominees already waiting weeks and months since committee approval, but also the ones just approved by the committee but nominated long before Ebinger.

But in sending the list of five approved nominees to the full Senate, Chairman Grassley made sure to list the Iowans first.  That’s not fair to Neals, who was nominated nearly seven months before Ebinger, or to Young and Brown, or to any of the people waiting for justice in their overburdened judicial districts.

It’s also bad news for the Democratic senators who recommended them, who know full well that Grassley’s machinations hurt the chances of timely confirmation for their chosen nominees.

Putting both the hearing and the confirmation list leapfrogging together, that’s a lot of Democratic senators who Grassley has moved against:

  1. Elizabeth Warren (MA)
  2. Ed Markey (MA)
  3. Jack Reed (RI)
  4. Sheldon Whitehouse (RI) – one of Grassley’s fellow members of the Judiciary Committee
  5. Barbara Mikulski (MD)
  6. Ben Cardin (MD)
  7. Brian Schatz (HI)
  8. Mazie Hirono (HI)
  9. Robert Menendez (NJ)
  10. Cory Booker (NJ)
  11. Dianne Feinstein (CA) – one of Grassley’s fellow members of the Judiciary Committee
  12. Barbara Boxer (CA)
  13. Chuck Schumer (NY) – one of Grassley’s fellow members of the Judiciary Committee
  14. Kirsten Gillibrand (NY)

They are learning the hard way that a chairman’s prerogatives can be abused.


SCOTUS Will Hear Latest Contraception Coverage Refusal Cases

The Supreme Court today announced that it will hear several cases involving the accommodation for religious nonprofits seeking to opt out of the Affordable Care Act’s contraception coverage requirement.  This is not a surprise; as we wrote in our Supreme Court 2015-2016 Term Preview:

Under the accommodation, the employers simply tell the insurer or the federal government of their objection, at which point the insurer must offer the coverage separately to employees who want it. This way, the employees can get the coverage without their employers having to contract, arrange, or pay for it.  But some religious nonprofits assert that even the accommodation violates their religious liberty under the Religious Freedom Restoration Act (RFRA).  Under RFRA, no federal law imposing a substantial burden on religious exercise can be sustained unless it is the least restrictive means of achieving a compelling government purpose.

The list of circuit courts that have roundly rejected this argument is long:  The DC Circuit, the Second Circuit, Third Circuit, the Fifth Circuit, the Sixth Circuit, the Seventh Circuit, and the Tenth Circuit.  But in September 2015, the Eighth Circuit ruled in favor of the nonprofits and found the accommodation violated RFRA.  Now that there is a circuit split, it seems likely that the Supreme Court will take up the issue via the appeals from one or more of these circuit decisions.

The premise of those challenging the accommodation is a severe distortion of RFRA and of the very concept of religious liberty set forth by the Court’s hard-right conservatives in the 5-4 ruling in Hobby Lobby.  That law was passed with overwhelming bipartisan support in 1993 as a means to protect the free exercise of religion.  But conservative ideologues have sought to transform RFRA from a shield into a sword, one that they can use to violate the rights of third parties.  The right wing’s enthusiastic embrace of Kentucky county clerk Kim Davis shows just how far they want to extend the reasoning of Hobby Lobby.

Here, the conservatives argue that filling out a form so that insurance companies can know about their legal obligations to provide certain coverage is a substantial burden on the exercise of their religion.  That strained reasoning is a cynical use of religion to deprive women of needed healthcare, an effort to force women employees to live by their employers’ religious strictures rather than their own.  But what the Supreme Court said about the First Amendment in a 1985 case called Estate of Thornton v. Caldor is equally true of RFRA:

The First Amendment . . . gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities. [quoting from a lower court opinion by Judge Learned Hand]

Justice Kennedy, who voted with the Hobby Lobby majority, is likely to be the deciding vote in this case.  His concurrence in Hobby Lobby hinted that he might not go as far as his fellow conservatives in granting people the latitude to use RFRA to deprive others of their rights:

Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion.  Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.  In these cases [involving for-profit employers] the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here [the accommodation for religious non-profits].

Given the circuit split on the accommodation for religious nonprofits, the Supreme Court had little choice but to take this issue on.  They do have a choice, however, in how they rule.  Hopefully, a majority of justices will take the first step in restoring RFRA to the law it was intended to be.

PFAW Foundation