Video: PFAW’s Drew Courtney Discusses Right Wing Extremism on Politics Nation with Al Sharpton

Last Monday, Right Wing Watch reported on an upcoming far-right rally, “Operation American Spring,” calling for the ousting of President Obama. Rally organizer Harry Riley predicts that “millions of Americans will participate” in this mission to “bring down the existing leadership.”

On Friday, PFAW Director of Communications Drew Courtney joined Rev. Al Sharpton on Politics Nation to discuss these fringe plans to overthrow President Obama and what it means when the rhetoric of far right activists creeps into the language of GOP elected officials:



Scalia Predicted It: Equal Rights Means Equal Rights

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

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

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

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

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

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

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

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

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

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

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

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

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

This article originally appeared on The Huffington Post.


What We Left Behind in 2013

I think we all breathed a sigh of relief this week when Congress finally did what it was supposed to do and passed a basic budget. Although the budget left many behind, this time there were no shutdowns, no debt ceiling scares, no fears of economic catastrophe. They just got down to work and passed a budget that allows our government to run.

I felt similarly relieved when the Senate changed its rules to put an end to the GOP obstruction that had kept seats on our courts across the country vacant out of misplaced political spite and pure obstructionism. Although Republicans are still doing everything they can to hold up the process, some long-blocked nominees are finally getting confirmed.

Yes, things are getting better. But that's not saying much. Republicans have lowered the standards of Congress so much that the completion of a basic task like passing a budget or confirming a non-controversial judge is now cause for celebration. Americans shouldn't accept the low standards of this new normal.

It's like the relief of having a tooth pulled. The ache that's been with you for so long is gone, the sharp pain of having it pulled is over. But there's something missing.

As we look forward to the year ahead, let's remember the tasks we left behind in the rancorous, bitter 2013. Relief is not enough. Progressives must redouble our efforts not only to make up lost ground but to make positive progress in the coming year.

  • Relief For Low-Income Americans. It was good news that Congress passed a budget. But that budget left some important programs behind. Last month, 47 million low-income Americans saw their SNAP (food stamp) benefits cut, leaving them with even less money to buy food for their families. Three days after Christmas, 1.3 million Americans will see their emergency unemployment insurance dry up, leaving many of the long-term unemployed with little to keep themselves afloat, and hurting the economy as a whole. Next year, Congress must work to boost our economy in a way that doesn't leave behind those who are out of work or underemployed.
  • Employment Non-Discrimination Act. Gay-rights supporters rejoiced last month when the Senate passed a bill banning employment discrimination based on sexual orientation or gender identity, a measure that garnered unexpected support from a number of Republicans. But Speaker Boehner shows no desire to bring the bill to the House floor. Progressives need to make sure House Republicans pay a political price if they kill a nondiscrimination bill supported by 70 percent of Americans.
  • Ending the Judicial Vacancy Crisis. A minority of Senate Republicans can no longer block all of the president's judicial nominees from getting confirmation votes, but there's plenty of lost ground to make up. One in ten seats on the federal courts is now or will soon be vacant, and there's a growing number of urgent "judicial emergencies." And now Republicans are stepping up their obstruction in other ways, even indicating that they will send 55 nominees back to the president at the end of the year, forcing the White House and the Senate to start the nominations process all over again. The 41-vote filibuster may be dead, but the fight to put good judges on the courts is just as important.
  • Updating our Immigration Laws. There was a rare bit of bipartisan hope this year when the Senate's bipartisan "Gang of 8" hammered out an agreement for a much-needed update to our immigration laws, including a roadmap to citizenship for undocumented immigrants. The bill provoked a Tea Party uproar and got stuck in the House, but with enough pressure from the public, next year presents an opportunity to create a chance for thousands of immigrant families.
  • Protecting Voting Rights. As soon as the Supreme Court struck down the key enforcement provision of the Voting Rights Act, states across the South started instituting restrictive new voting laws designed to keep people of color, low-income people, and the young from voting. This was an undeniable setback, but we now have an opportunity to update VRA's protections...if reasonable members of Congress will work together to get it done.
  • Defending Choice in the States. Congress may have been at a standstill last year, but many state legislatures weren't. On top of a barrage of voting restrictions, Republican state legislatures continued the recent flood of anti-choice laws making it harder for women to access birth control and abortions. In just the first half of the year, states adopted 43 restrictions on abortion. But there were also positive trends as state legislators across the country worked toward positive, pro-woman policies. The War on Women is far from over, but we have the chance to achieve positive women's rights victories in the states.
  • Fighting the Influx of Big Money in Politics. The 2010 Citizens United decision was bad enough, opening the door to unlimited corporate spending in elections. But this year saw the Supreme Court considering another major campaign finance case, McCutcheon v. FEC, that could allow the wealthiest donors to flood our political system with even more money. Luckily, 2013 also made clear that "We the People" have had enough. The movement to reclaim our democracy from special interests has never been stronger. To date, 16 states and more than 500 cities and towns have passed resolutions or ballot initiatives calling on Congress to pass an amendment overturning Citizens United and putting the power of our democracy back in the hands of everyday Americans. And 145 members of the House and Senate are now on record as co-sponsors of an amendment.

Barely functioning is not enough. We have a lot of work to do. Here's to higher standards in 2014!

This article originally appeared on The Huffington Post.

Sarah Palin Still Clueless About 1st Amendment

Sarah Palin has been notorious for propagating distortions of the First Amendment and the meaning of “free speech rights” – essentially, when she or one of her right-wing friends is criticized for some offensive thing they said, in her eyes, their freedom of speech was violated.

It’s a woefully flawed and ignorant understanding of the First Amendment’s protection of free speech that she and other right wingers often grab onto and use to cry foul when they are called out for their bigoted remarks.

Most recently, Palin has been pushing her false “free speech” line in defense of Duck Dynasty’s Phil Robertson, after he came under fire by his television network for an interview in which is he expressed views many perceived as homophobic and racist. But even Fox News’s Greta Van Susteren, who has a history as something of a Palin cheerleader (Who can forget that painful-to-watch “first dude” interview with Todd Palin back in 2008?), couldn’t let Palin’s confusion go uncontested and had to correct her – albeit gently.


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Challenges & Opportunities: 2014 Political Landscape PFAW Telebriefing

On a recent national activist teleconference, pollster Geoff Garin of Hart Research Associates told PFAW supporters that 2014 could see challenging mid-year elections for progressives. Garin said 2013’s rollout difficulties with the Affordable Care Act, Tea Party obstructionism, and sliding poll numbers for President Obama stand out in voters’ minds. But he also highlighted opportunities for change, including the push to unseat GOP Senate Minority Leader Mitch McConnell in Kentucky and Tea Party Governor Scott Walker in Wisconsin.

Following trends like Terry McAuliffe’s gubernatorial win in Virginia, Garin observed that Democrat Michelle Nunn is well positioned to win in Georgia. Garin and PFAW Political Director Randy Borntrager both noted that as Republicans continue to move further to the right, Democrats who represent a new, positive direction stand to pick up seats in swing areas because of voters’ frustration with obstructionism and division.

You can listen to the audio of the teleconference here:

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Senate Republicans Send 55 Judicial Nominations Back to "Go"

As the Senate is winding up its business for the first session of the 113th Congress, Republicans are taking steps to make it harder to get things done during the second session (which starts in 2014). Specifically, they are taking almost every judicial nomination, no matter where it is in the confirmation process, and forcing them to start all over again.

Under Senate rules, any nominee not confirmed by the end of a session of Congress has their nomination returned to the White House for renomination. Usually, this rule is waived by unanimous consent of the senators, so as not to waste the time of the nominees and their families, the White House, members of the Judiciary Committee, and the Senate overall. But this year, petulant over having their own "nuclear option" idea enacted by Democrats, Republicans are more interested in sabotaging the work of the Senate than they are in providing an effective federal court system for their constituents.

So of the 56 judicial nominees who have not been confirmed, 55 have been returned to the White House. (The one exception is for DC Circuit Court nominee Robert Wilkins, who can't be sent back because a motion to reconsider the cloture vote on his nomination is currently pending.)

That includes nine nominees who have long been pending on the Senate floor but who have been denied votes week after week after week by GOP obstruction. All but one had been approved by the Judiciary Committee with unanimous or near-unanimous bipartisan support. All had been waiting more than a month for a vote, and most had been waiting since October or earlier; one had even been waiting three months. Four had been nominated to fill vacancies classified as judicial emergencies, and five were women or people of color. But now they all have to start again.

They include Tenth Circuit nominee Carolyn McHugh, who had received the strong support of both Orrin Hatch and Mike Lee. Yet neither senator has been visible condemning their fellow Republicans for delaying her nomination for weeks. The senators know that those weeks may turn into months, depending on how much their party blocks the Judiciary Committee from reprocessing the nomination next year, using the newly elevated methods of obstruction they have been implementing over the past few weeks. Also conspicuous for not helping home state judicial nominees are Arkansas Sen. John Boozman (for district court nominees Timothy Brooks and James Moody) and Tennessee Sens. Lamar Alexander and Bob Corker (for district court nominee Pamela Reeves).

Also sent back are 15 nominees who Republicans intentionally kept bottled up in committee in repeated acts of pique, denying them the chance to advance to the Senate floor for a confirmation vote. They, too, have to start again.

Beginning next month, the Judiciary Committee will have 55 nominations to reprocess. Hopefully, those who have had hearings already will not be required to repeat them. But given the Republicans' commitment to sabotage, we can't be sure of anything.


Breaking: Judge Strikes Down Ban on Same-Sex Marriage in Utah

Adding to this week’s great news on marriage equality, today U.S. District Court Judge Robert J. Shelby struck down Utah’s same-sex marriage ban, which was put into the state constitution by referendum in 2004.

One of the far right’s standard attacks on the increasing number of judicial opinions striking down discriminatory marriage laws is that judges are “redefining marriage” and “usurping the legislature.”  No doubt they will do so again in this case.  Fortunately, Judge Shelby opens his opinion with a brief but important explanation of how the American constitutional system works:

The issue the court must address in this case is therefore not who should define marriage, but the narrow question of whether Utah’s current definition of marriage is permissible under the Constitution.…

[T]he legal issues presented in this lawsuit do not depend on whether Utah’s laws were the result of its legislature or a referendum, or whether the laws passed by the widest or smallest of margins. The question presented here depends instead on the Constitution itself…

In his opinion, Judge Shelby also takes apart the harmful, bogus argument that preventing same-sex couples from marrying somehow “elevate[s] the status of opposite-sex marriage”:

Rather than protecting or supporting the families of opposite-sex couples, Amendment 3 perpetuates inequality by holding that the families and relationships of same-sex couples are not now, nor ever will be, worthy of recognition. Amendment 3 does not thereby elevate the status of opposite-sex marriage; it merely demeans the dignity of same-sex couples. And while the State cites an interest in protecting traditional marriage, it protects that interest by denying one of the most traditional aspects of marriage to thousands of its citizens: the right to form a family that is strengthened by a partnership based on love, intimacy, and shared responsibilities. The Plaintiffs’ desire to publicly declare their vows of commitment and support to each other is a testament to the strength of marriage in society, not a sign that, by opening its doors to all individuals, it is in danger of collapse.  (Emphasis added.)

Congratulations, Utah!


Suddenly Senate Republicans Are Worried About 'Deliberation.' Give Me a Break.

I can understand why Senate Republicans are angry about the recent change in the Senate’s filibuster rules. It means that their agenda of obstruction just got a lot harder. But all their righteous indignation is ringing hollow.

Yesterday, Sen. Chuck Grassley, the top Republican on the Judiciary Committee, issued a statement attacking the committee’s chairman, Sen. Patrick Leahy, for saying he would consider changing committee policies to make it harder for Republican senators to hold up nominations. 

Democrats “are slowly but surely taking the world’s greatest deliberative body and moving towards a majoritarian body,” Grassley charged.

Oh, really?

The reason Leahy has to even consider policy changes in committee is that GOP senators, in an attempt at retribution for the “nuclear option,” have repeatedly brought up an obscure rule that allows them to prevent the Judiciary Committee from meeting. They have also prevented the committee from meeting by simply not showing up, ensuring the lack of a quorum. Along with threats that Republican senators would refuse to return their “blue slips” signaling approval for hearings on home-state nominees, Sen. Leahy was faced with the prospect of not being able to process any nominees. Senate Republicans have literally not been allowing “the world’s greatest deliberative body” to deliberate on judicial nominations.

And the reason why Senate Democrats were driven to change the filibuster rules for presidential nominees in the first place was that the Republican minority was blocking nominees to positions they just didn’t want the president to be allowed to fill. In other words, they were using the Senate’s rules of obstruction in an attempt to nullify laws they did not like and reverse the results of the presidential election.

This didn’t promote “deliberation.” It shut the entire process down.

This sanctimonious whining from Grassley and his fellow obstructionist Republicans isn’t fooling anyone. Personally, I would have preferred not to have gotten to this place. My guess is that Senator Leahy would as well. But when you’re trying to govern a country and the minority party won’t let you complete even the most basic tasks of governance, there really is no choice. Comity has to be a two-way street.

The high and mighty act doesn’t work when you’re behaving like a child.


Six Ways Senate GOP Is Still Obstructing Judicial Nominations

As we approach the end of the first session of the 113th Congress, it's important to take stock of the toll that Republican obstruction has taken on the Senate's judicial confirmation process. Since President Obama took office, Senate Republicans have been exceptionally active and persistent in coming up with ways to block or delay his judicial nominees, a project that reached its apex this year.

Since 2009, Republicans have lived up to the Far-Right demand that they function as a “resistance movement” rather than as partners in an electoral democracy. That would include their menu of abuse of the filibuster and filibuster equivalents, needless holds on committee votes, refusal to cooperatively recommend nominees to the White House, and abuse of the “blue slip” policy. During President Obama's first term, Senate Republicans forced judicial nominees to wait an average of three times as long after committee approval for a confirmation vote from the full Senate as did President George W. Bush's first-term nominees.

Over the last year, Obama's reelection drove the GOP to even greater acts of obstruction. Last spring, when President Obama announced his intention to fill the three existing vacancies on the DC Circuit, Republicans signaled their intention to stonewall the nominees no matter who they were. They just didn't want a Democratic president naming judges. This was part of a larger campaign of nullification of laws and election results they don't like. Democrats were provoked into changing the Senate's filibuster rules in exactly the same way that Republicans proposed when Bush was president. Apparently, what's good for the goose isn't good for the gander, because Republicans from that point forward have escalated their obstruction to heretofore unseen levels.

We have counted six ways that Republicans are escalating their abuse of Senate Rules to prevent presidential nominations from going forward.

1. Denying a committee quorum: Under the Judiciary Committee's rules, it can't vote on a nominee unless at least eight of the committee's 18 members are present, including at least two from the minority party. On November 21, the GOP committee members just didn't show up for a scheduled meeting to vote on ten judicial nominees, leaving the Democratic members unable to conduct business – and leaving federal courts around the country that much further from being fully functional.

2. The two hour rule: Under a rarely-invoked Senate rule, committees can't meet more than two hours after the Senate goes into session. Routinely, senators give unanimous consent to waive the rule so committees can carry out the chamber's – and the country's – business. But twice this month, Republicans invoked this rule to block the Judiciary Committee from meeting.

The first time was December 12, when the committee was set to vote on 15 judicial nominees (including the ten who had been blocked before Thanksgiving). The committee was finally allowed to meet a week later, on December 19, but even then the previous delays had a consequence: Republicans pointed out that this was technically the first meeting that these nominees were on the agenda to be voted on, so they invoked their right under committee rules to demand without explanation a one-time delay in voting until the next meeting. Of course, this was really the second time around for five of these nominees and the third time for ten of them.

And since the next committee meeting will be held next year, that means it will be a new session of Congress, which introduces another opportunity for obstruction (more on that later).

The GOP played the two-hour card again on December 18, this time preventing a hearing on five consensus district court nominees from Kansas, California, Maryland, and Maine. The nominees' families had come to Washington at their own expense to share an incredible moment in the lives of their loved ones. (It is always a joy to see the beaming faces of the spouses, siblings, and often-restless children who routinely come to these hearings, usually creating a packed hearing room.) They showed up for the hearing only to find out that Republicans had decided to prevent it from happening. Fortunately, after committee chairman Patrick Leahy threatened to change committee policies, they allowed the hearing to occur the next day.

3. Continued blue-slip abuse: Chairman Leahy's current policy is to give each senator an absolute veto over judicial nominations in their home states. If one or both of a nominee's home-state senators fail to submit a “blue slip” signaling their approval of allowing the committee to process the nomination, Leahy will not even hold a hearing on the nominee, let alone a committee vote.

Senate Republicans have frequently abused the “blue slip” process to prevent President Obama's nominees from even starting the confirmation process. Ten of the nominees currently in committee can't get a hearing because they are being blocked by their home-state senators. Five of these are nominees for long-vacant judgeships in Arizona that have been formally designated as judicial emergencies. Sen. Jeff Flake is blocking all five from hearings, but refuses to say why.

North Carolina Sen. Richard Burr is blocking the nomination of Jennifer May Parker, who would be the first African American federal judge in that state's Eastern District. Because of obstruction by South Carolina Sens. Lindsey Graham and Tim Scott, nominees Bruce Howe Hendricks and Alison Renee Lee have been languishing without a hearing since they were nominated in June. Georgia's Sens. Saxby Chambliss and Jonny Isakson refuse to return their blue slips for Eleventh Circuit nominee Jill Pryor, whom they had previously said was qualified for a lifetime federal judicial appointment; after nearly two years, they have yet to give their reasons.

But perhaps the most outrageous example of blue slip abuse comes from Florida's Marco Rubio, who recommended William Thomas for a district judgeship, then refused to submit his blue slip so he could curry favor with a right wing that grew suspicious of him on immigration issues. The reasons Rubio cites for his opposition are so ludicrous and demonstrably false that local prosecutors and even a local judge have written to him to correct the record.

Fortunately, Leahy has signaled that he is ready to consider reforming committee policies if Republicans continue their aggressive and escalated obstruction.

4. Filibustering consensus nominees: Normally, senators filibuster nominees whom they oppose. Sometimes, even a senator who opposes a particular nominee will vote to end the filibuster if they feel that the Senate should be allowed to hold a yes-or-no vote. But during these past two weeks, Republican senators have been filibustering nominees whom they supported in committee and whom, when their nominations reach a yes-or-no vote, they overwhelmingly vote to confirm.

Now that the Senate's rules allow a simple majority to break a filibuster of most nominations, Republicans have been filibustering nominees just to waste the Senate's time.

Four consensus district court nominees from New York, New Hampshire, and Montana who cleared the Judiciary Committee without opposition months ago faced nearly unanimous Republican filibusters last week…before being confirmed hours later by large bipartisan majorities of 77-19, 75-20, 79-19, and 70-29. It is hard to find principled opposition in those numbers.

5. Counting down the hours: Once a cloture motion succeeds in ending a filibuster, Senate rules allow a certain amount of time for debate before a final confirmation vote, up to 30 hours for circuit court nominees and up to two hours for district court nominees. Over the past two weeks, as Republicans forced cloture vote after cloture vote on judicial and executive nominees, they insisted on eating up every minute of available time before allowing the confirmation vote.

As Republicans were forcing the Senate to spend time on nominations rather than budgetary and legislative issues, conservatives were busy condemning the Democrats for – wait for it – making the Senate spend so much time on nominations rather than budgetary and legislative issues. Because of GOP insistence on using every possible post-cloture hour for circuit, district, and executive nominees, senators were forced to pull all-nighters to get their work done. When Nina Pillard was nominated to the DC Circuit last spring, she probably didn't expect that her confirmation vote would take place at 1:00 am on a night in December.

6. Returning nominations to the president: Under Senate rules, any nominee not confirmed by the end of a session of Congress has their nomination returned to the White House. The president then renominates them, and they must go through the relevant committee again (though not necessarily with a hearing if they already had one). Since this is an enormous waste of time and resources, this rule is regularly waived by the unanimous consent of the Senate. So, for instance, at this point in George W. Bush's administration (between the first and second session of the 109th Congress), only one of the 18 judicial nominations then pending was returned to the president.

And this time? There are 53 nominees for current judicial vacancies who are somewhere in the Senate confirmation process. (There are also three for future vacancies.) Of these, we expect Republicans to demand that all but one be returned to the president for re-nomination. That includes:

  • 9 nominees who have been waiting for a floor vote that Republicans will not allow;
  • 15 nominees who would have been approved by the Judiciary Committee and thus eligible for confirmation votes if the GOP had allowed the committee to meet; and
  • 10 individuals who can't even get a hearing because of GOP abuse of the blue slip policy.

[Note: The one nominee we expect not to be returned, Judge Robert Wilkins for the D.C. Circuit, cannot be sent back to the White House because a motion to reconsider the cloture vote on his nomination is currently pending.]

The Senate likes to consider itself the world's greatest deliberative body. But it's hard to say that with a straight face when the minority party is preventing senators from learning about nominees in committee hearings. Or when Republicans prevent the Judiciary Committee from meeting to discuss the nominees and debate whether to advance them to the full Senate. Or when GOP senators presumably have concerns with a nominee but abuse the blue-slip policy to prevent the committee from asking the nominees about those very issues.

Senate Republicans have made great efforts to block President Obama's nominees, often in little-known or little-noticed ways. The cost is high to the nominees and their families, to our nation's system of justice, and to the Americans who rely on a functioning court system to guarantee their day in court.


New Mexico Becomes 17th Marriage Equality State

It has been quite a year for marriage equality. Today the New Mexico Supreme Court ruled unanimously that the state is required by its constitution to allow same-sex couples to marry. This means that New Mexico joins the impressive list of states that legalized marriage for same-sex couples in 2013 alone, including Delaware, Hawaii, Illinois, Minnesota, New Jersey, and Rhode Island, and becomes the 17th state in the country to legalize marriage equality.

As the march toward full equality nationwide continues with today’s victory in New Mexico, the momentum is undeniable. PFAW will continue to advocate for marriage equality until every couple can access the protections necessary to take care of each other for a lifetime.


NC Committee Upholds Teaching of Challenged Allende Novel

After Isabel Allende’s internationally-renowned novel The House of the Spirits was challenged by a parent this October, PFAW Foundation wrote to members of the Watauga County, North Carolina Board of Education, urging them not to remove the book from the county’s high school curriculum. Now, following a sustained outcry at both the local and national level – including from Allende herself – a county appeal committee has unanimously voted to uphold the teaching of the book.

Last week’s vote was the second round of review the book has faced. Parent Chastity Lesesne appealed an earlier decision of a school committee to retain the book as part of the curriculum, and it is not yet known if she will appeal the most recent decision. If she were to do so, the Watauga County Board of Education would issue a final decision.

Community members in Watauga County have been speaking out against censorship of the book, including through a teach-in earlier this month at Appalachian State University. Lynn Schlenker, president of the Watauga High School parent teacher organization, told the School Library Journal that she was concerned about potential “ramifications on all curriculum at the high school.” Schlenker noted,

We need to explore ideas on how to provide the framework for book challenges in a way that doesn’t trample the rights of the other students.

PFAW Foundation

Escalated GOP Obstruction Provokes Talk of Committee Changes

The latest GOP tactic for blocking and delaying judicial nominations has pushed Senate Judiciary Committee Chairman Patrick Leahy into considering changes in committee rules to combat the increasing obstruction. For a committee chairman who has bent over backwards to respect the prerogatives of the minority party, this is a monumental development.

This afternoon, with hearings scheduled on five consensus nominees from four states, Republicans on the Judiciary Committee invoked a seldom-used Senate rule that prevents committees from meeting if the Senate has been in session for more than two hours. This, on top of the previous few weeks of nonstop committee obstruction, provoked Sen. Leahy to respond. In response to today's action, Leahy revealed that he is now considering changes to how he runs the committee:

Just last week, Republicans prevented the Judiciary Committee from holding an executive business meeting to consider 18 highly qualified nominees, including two Texas U.S. Marshals. Those two nominees should have been approved by the Committee last month, but Republicans failed to attend the meeting to report their nominations. As Chairman of the Judiciary Committee, I have consistently shown my commitment to work with all Senators to process nominations. This obstruction sets back the bipartisan cooperation we have seen in recent weeks on such legislative matters as the budget, the defense authorization bill, and the Farm Bill. If this obstruction continues with respect to judicial nominees, I will be forced to reconsider long-held policies that have upheld the rights of the minority party in this process.

Among the “long-held policies” that is most in need of examination is the blue-slip process. It is not a rule of the Senate or of the Judiciary Committee, but is simply a practice of the chairman that has changed over the years. Leahy's policy is that until both of a nominee's home-state senators signal their approval for letting the committee process a nomination, he will not even schedule a hearing. This was his policy when George W. Bush was president, and he did not change it when a Democrat became president. Unfortunately, Republicans have met his even-handedness with obstruction. Nevada's Elissa Cadish, Kansas' Steve Six, Georgia's Natasha Perdew Silas, and Wisconsin's Victoria Nourse and Louis Butler are just a few of the highly qualified Obama nominees who have been prevented from serving on the federal bench by GOP abuse of the blue slip policy.

Perhaps no better example of abuse of the policy can be found than Florida's William Thomas, a current nominee who was recommended by Marco Rubio, then denied a blue slip by the senator on the most transparently flimsy of reasons. Yet Leahy has maintained his policy and allowed Rubio to block a hearing on Thomas. Rubio has not been forced to defend his absurd allegations in public, and Thomas has been denied the chance to defend and explain his record. That isn't how a committee of the world's greatest deliberative body should function.

There are many ways that Leahy can reform the blue slip policy. But whether it should be reformed seems to no longer be in doubt.


Senate GOP Acting More Like a "Resistance Movement"

A few hours after losing their fight to block Nina Pillard from the DC Circuit, Senate Republicans continued their war against President Obama, the Democratic Party, and common-sense governance by forcing cloture votes to end their filibuster of two consensus district court nominees: Elizabeth Wolford would fill a judicial emergency in the Western District of New York, and Landya McCafferty was nominated to a district court in New Hampshire. Their nominations have been languishing on the Senate floor since they were approved unanimously by the Judiciary Committee back on August 1 and September 19, respectively, as Senate Republicans stubbornly and quietly refused to allow a confirmation vote.

The GOP's complaints about Wolford and McCafferty would barely fill a fortune cookie: She was nominated by a Democratic president.

Unfortunately, with today's Republican Party, that is enough to warrant all-out obstruction, requiring cloture votes to break the filibusters. Despite being unquestionably qualified consensus nominees, Wolford and McCafferty's cloture votes were 55-41 and 58-40. Among those supporting the filibusters were all the Republican Judiciary Committee members, who had previously voted to advance the nominations. (Orrin Hatch voted "present" in one case, which has the same effect as voting against cloture.) Under the recent rules change, the filibusters were broken.

But Republicans were still able to obstruct: Senate rules allow up to two hours of debate on a district court nomination after a successful cloture vote, and the GOP insisted on using their half of the time. It took a while, but the Senate was at long last able to vote to confirm these two highly qualified women. Then the same thing happened with two consensus nominees to fill emergency vacancies in Montana: It took until late at night to overcome the GOP's filibusters and post-cloture time-wasting tactics, but they, too, were finally confirmed.

It shouldn't be this way. Republicans are pulling out the stops to sabotage the Senate for adopting a rules change that their own party first proposed and aggressively pushed when they held the Senate majority and the White House.

Unfortunately, they are living up to the vow made by right wing leaders in the opening days of the Obama presidency: to function as a "resistance movement" rather than as responsible participants in an electoral democracy.


GOP Blocks Judiciary Committee From Even Meeting

Senate Republicans have escalated their sabotage of the judicial nominations process this week, most recently by forcing the Senate to wait until 1:00 am this morning to hold a confirmation vote on Nina Pillard to the D.C. Circuit. Senate Majority Leader Harry Reid has said he will keep the Senate in session for the rest of the week in order to hold what should be routine confirmation votes, which are being needlessly delayed by these GOP antics.

The obstruction isn't just on the Senate floor: This morning, Republicans prevented the Senate Judiciary Committee from even meeting.

Under a rarely enforced Senate rule, committees can't meet more than two hours after the Senate goes into session. Routinely, senators give unanimous consent to waive the rule so the committee can carry out the chamber's – and the country's – business. But today, Republicans refused unanimous consent to let the Judiciary Committee meet.

The committee has a busy schedule, with votes scheduled for 15 judicial nominees who have testified before the members and answered follow-up written questions. Among those are nominees for vacancies designated as judicial emergencies by the Administrative Office of U.S. Courts. Each one of the nominees has been fully vetted and has the support of their home state senators, including Republicans Mark Kirk (IL), Pat Roberts and Jerry Moran (KS), Lamar Alexander and Bob Corker (TN), Roy Blunt (MO), and Pat Toomey (PA).

But Senate Republicans just don't care.

To make things worse, even had the committee meeting been held, Republicans were expected to abuse another rule: As they have done with only five exceptions since Obama became president, they almost certainly would have demanded that the committee delay votes on these nominees for at least a week without giving a reason, a right under committee rules that they have abused and made a standard part of their mechanism of obstruction. But since the committee didn't meet, they haven't even crossed that hurdle yet.

If the committee is not able to meet until next week – the last week the Senate is expected to be in session – and Republicans force the nominees to be held over, then they'll be stuck in committee at year's end. Since that will be the end of a session of Congress, absent unanimous consent to do otherwise, Senate rules require the nominees to be sent back to the president for renomination in the next session. That would force all of these nominees to repeat the committee voting process all over again, where once again the GOP could find new ways to slow them down.


The GOP's Post-Cloture Obstruction: Nothing Changes

Under Senate rules, after a filibuster has been broken by a successful cloture vote, a single senator can still delay an actual yes-or-no confirmation vote for as long as 30 hours. That 30-hour wait can be eliminated, but only if all the senators agree. So when the Senate invoked cloture on Nina Pillard's nomination to the DC Circuit Tuesday evening, Republicans immediately set about delaying her confirmation up to about 1:00 am Thursday morning. National Journal reports that McConnell has no intention of giving back any of that time, and that Republicans are "plotting a talkathon."

But the National Journal report makes a serious factual error when it says:

Before the rules change, Minority Leader Mitch McConnell would probably have agreed to yield back time. Now? Not so much.

While Senate Republicans may want Americans to believe that, a quick look at the record shows it isn't so. We can look at other times (before the rules change) that Democrats successfully invoked cloture on a circuit court nomination to see if the GOP yielded their right to force the Senate to wait 30 hours before holding a confirmation vote.

It turns out there are only four examples where Democrats were able to successfully break the Republican filibuster of an Obama appeals court nominee with a cloture vote, and in only one of those cases did Republicans agree to immediately allow an up-or-down confirmation vote.

In two of those cases, confirmation votes took place two days after the cloture vote, even though in one instance almost every Republican supported the nominee. The Senate invoked cloture for David Hamilton to the Seventh Circuit by a 70-29 vote on November 17, 2009, but his confirmation vote (59-39) was not held for another two days. And cloture for Adalberto Jordán, nominated to the Eleventh Circuit, was invoked by an 89-5 vote on February 13, 2012, but he had to wait two days before his 94-5 confirmation vote.

The only time there was a contested cloture vote for a circuit court nominee and Republicans yielded back the time, allowing a relatively prompt yes-or-no vote, they did so by accident. That was for the nomination of Andrew Hurwitz to the Ninth Circuit. The Senate invoked cloture on Hurwitz's nomination in a 60-31 vote at the end of the day on June 11, 2012, and he was confirmed the next morning by unanimous voice vote. After the vote, senior Judiciary Committee Republican Chuck Grassley claimed that he had not meant to let the vote go forward and did not know that this would happen, or he would have objected in order to prevent the needed unanimous consent. (He also listed 39 Republicans who would have voted against confirmation.)

There was one time when Sen. McConnell and his caucus did agree to yield back the time after a circuit court nomination cloture vote, as National Journal suggests was the norm. On March 2, 2010, the Senate voted unanimously for cloture on Barbara Keenan's nomination to the Fourth Circuit and confirmed her 99-0 the same day.

So before the recent rules change, would McConnell likely have agreed to yield back time for a nominee who Republicans had pulled out the stops to obstruct? Don't bet on it.