The Senate Could Immediately Reduce the Vacancy Rate by a Third

Just a few days into the new session of Congress – with Senate Republicans having forced renominations of more than 50 judicial nominees – the Judiciary Committee has now fully vetted and advanced 29 of those nominees to the full Senate. For many of them, it is their second time on the Senate floor, since the committee approved them last year, too – unanimously in almost all cases.

Now nothing prevents the Senate from fulfilling its constitutional role of holding confirmation votes … nothing, that is, but the same type of escalated GOP obstruction that led to so many nominees being up for a committee vote in the first place. In this case, short of a formal cloture vote, Senate rules prevent the Senate from holding a confirmation vote if GOP obstructionists led by Senator McConnell object.

If McConnell allowed it, the Senate could vote this week to confirm these 29 nominees. Doing so would put an enormous dent in the vacancy rate that is weakening our nation's federal court system: In a single day, 31% of the nation's circuit and district court vacancies could be filled.

Among these 29 nominees are eight who would fill vacancies that have been formally designated as judicial emergencies by the Administrative Office of U.S. Courts. Confirming them would resolve 22% of our nation's judicial emergencies.

The alternative? Let the emergencies fester. Let the vacancy crisis continue unabated. Let a huge backlog of pending nominees form, guaranteeing longer and longer wait times for the dozens of nominees the Judiciary Committee will be advancing to the full Senate in the next weeks. Let America's judicial system continue to crumble into disrepair like our nation's roads and bridges.

Why would anyone think that's a good idea?


In Virginia, The Power of Showing Up

In elections, it doesn't just matter who wins. It also matters how they win: who shows up to vote and why.

We're seeing this yet again in Virginia this week, as Terry McAuliffe kicks off his first term as governor. On his first full day in office Monday, McAuliffe got started on the agenda of progressive reform that he told voters he stood for - including expanding LGBT rights and access to reproductive care, and expanding health care coverage.

He also emphasized a push for Virginia's version of the DREAM Act, which would allow undocumented students to pay in-state tuition at the state's public colleges and universities. That measure has bipartisan support, but was stalled last year by Republicans in the state legislature. McAuliffe's stance on immigration issues was one of the key things separating him from Republican candidate Ken Cuccinelli - and contributed to his critical victory among Latino voters.

Exit polls in 2013 made clear that Latino voters - and a lot of other Virginians to boot - were turned off by the GOP's chilling anti-immigrant rhetoric and opposition to common-sense immigration policies.

A Latino Decisions election-eve poll in Virginia last year, which we sponsored along with America's Voice, found that over half of Latino voters named immigration and the DREAM Act as the most important issues that politicians need to address. Jobs and the economy, education, and health care also ranked highly. And just as importantly, Republican candidate Ken Cuccinelli's demeaning remarks about immigrants severely damaged him in the eyes of Latino and Asian American voters. In the end, Virginia's Latino voters favored McAulliffe by a whopping 37 percentage points.

And it's not just immigration. In his speech on Monday, McAulliffe also repeated his intention to push for expanded Medicaid coverage in Virginia, which would provide health coverage to 400,000 uninsured people in the state - a measure that McAulliffe's Republican predecessor Bob McDonnell refused to take.

Republicans are learning the hard way that anti-immigrant extremism is not what American voters want. They are also learning the hard way that America's growing number of Latino voters are not going to sit back and let Republican politicians insult and scapegoat them.

This article originally appeared in The Huffington Post.

Burr Invents New Rule to Hide Obstruction of NC Judicial Nominee

North Carolina Sen. Richard Burr (like Marco Rubio before him) is in hot water for obstructing a judicial nominee who he himself had originally recommended to the White House. Burr is refusing to talk about his motives, but in trying to escape accountability, he has now claimed that he doesn't discuss judicial nominations publicly – a claim his own website proves as false.

In 2009, Burr wrote to the White House stating that Jennifer May-Parker had "the requisite qualifications to serve with distinction if nominated" for the position. President Obama nominated her last June, but Burr has refused to submit a blue slip for her. Under the practice of Judiciary Committee Chairman Patrick Leahy, the committee will not even hold a hearing for a judicial nominee unless both of her home state senators give their permission. As far too many of President Obama's nominees have learned the hard way, GOP senators are more than willing to abuse that process in order to keep the president from fulfilling his constitutional responsibility to fill the nation's courtrooms with qualified judges. And as long as no hearing is held, senators do not have to explain their obstruction or even admit to it.

The Huffington Post tried to pin Sen. Burr down yesterday on whether he still supports May-Parker's nomination:

"All my conversations are with the White House on judicial recommendations," he said.

The North Carolina senator also wouldn't comment on if he plans to submit his blue slip: "I just don't share anything about the judicial nominations process."

This non-sharing policy must come as news to the many North Carolina judicial nominees who Burr has "shared anything" about:

  • In February 2005, just a few weeks after replacing Democrat John Edwards in the Senate, Burr issued a press release telling the world that he had signed his blue slips for circuit court nominee Terrence Boyle and district court nominees Robert Conrad and James Dever III.
  • In February 2006, on the day that President Bush nominated Frank Whitney to be a district court judge, Burr issued a public statement of support.
  • In September 2006 – again, on the day they were nominated – he publicly applauded President Bush's selection of Martin Reidinger, William Osteen, Jr., and Thomas Schroeder for district judgeships in North Carolina.
  • In 2010, he released a statement praising President Obama's nomination of Catherine Eagles to be a district court judge. In that case, Burr waited until the day after the nomination.

Sen. Burr owes an explanation to his constituents, who deserve a fully functioning court system. If he has a problem with May-Parker, he should say so in public and allow the Judiciary Committee to look into the basis of his concerns. Unfortunately, under the current blue slip practice, Burr can continue to sabotage a nominee without facing the consequences or allowing her to discuss her record with his fellow senators.

Abuse such as this shows why the blue slip practice needs to be reformed.


Breaking: Federal Judge Rules Same-Sex Marriage Ban in Oklahoma Unconstitutional

Today a federal judge found Oklahoma’s ban on marriages for same-sex couples to be unconstitutional. While this is great news, same-sex couples are not yet able to marry in the state because the decision is stayed – in other words, on hold – pending appeal.

As victories for marriage equality continue to stack up across the country, it is increasingly clear that the march toward full equality nationwide cannot be halted. Congratulations, Oklahoma!

PFAW Foundation

PFAW Foundation Staffer Reacts to Utah Marriage Battle in CNN Op-Ed

It has been a roller-coaster few weeks for marriage equality in Utah, where a legal battle over the state’s ban on marriage for same-sex couples continues and more than a thousand marriages are caught in limbo.

On Friday People For the American Way Foundation Major Gifts Associate Tyler Hatch reacted to the struggle in Utah, and his op-ed was featured by CNN.

Hatch writes:

Regardless of the ultimate outcome of Kitchen v. Loving (Utah’s marriage equality case currently under review by the 10th Circuit) the issue of marriage equality is once again before the Mormon or LDS church.

I was raised LDS and went to church nearly every Sunday until I was 18. I participated in weekly youth meetings, attended Boy Scout outings, and was a leader within my church. By all accounts I appeared to be the model youth, however inside I was dejected. Severe depression, suicidal thoughts, and extreme self-loathing plagued my adolescent and teen years due to an overwhelming sense of guilt regarding my sexuality.

….Whether it is in the halls of elementary schools, the wedding chapel, or feeling secure and safe in the workplace there is much work to be done. LGBT equality is an issue that will surely grip our generation for years to come. As society becomes more accepting of LGBT individuals I remain optimistic that progress will be made, at least within civil society.

….There are no easy answers for the countless number of LGBT individuals with conservative religious backgrounds and the struggle to find an identity within that intersection is a fight that will continue throughout our lives.

PFAW Foundation

On Contraception, Dumbing Down Tyranny

In recent years, conservative evangelical and Catholic activists have made "religious liberty" their culture war rallying cry as well as their primary legal and political strategy. In doing so, they often use irresponsible rhetoric about American Christians being subject to tyranny and religious persecution. And they portray other religious liberty advocates who disagree with them on policy issues as enemies of faith and freedom.

This strategy to claim ownership of the moral high ground of religious freedom plays out in debates over anti-discrimination laws and marriage equality as well as the current barrage of lawsuits challenging the contraception coverage requirements under the Affordable Care Act. One case in particular, a lawsuit brought by the Becket Fund for Religious Liberty on behalf of the Little Sisters of the Poor, demonstrates the degree to which religious conservatives are trying to stretch the definition of religious liberty.

The Little Sisters is an order of nuns that operates some 30 homes for the elderly; at least two of them employ more than 50 lay people. Becket is suing to prevent the order from having to certify that it has a religious objection to providing insurance coverage that its employees could use to access contraception. Becket lost at the district court level, and it is asking the Supreme Court to give the organization a break from the law's requirement while its appeal is considered by the Tenth Circuit. Justice Sonia Sotomayor has granted the group temporary relief from enforcement of the requirement while considering the request.

Becket and its allies are suing under the Religious Freedom Restoration Act (RFRA), a 1993 law designed to protect religious minorities from having their rights trampled on. Under RFRA, which was supported by a religiously and politically diverse coalition that included People For the American Way, the federal government cannot impose a "substantial burden" on a person's exercise of religion unless it is pursuing a compelling interest and does so in the least restrictive way. Those are general terms, and people who back RFRA's principles frequently disagree on how they should be applied in particular cases.

In its lawsuit representing the Little Sisters, Becket argues that it is a substantial burden on the order's religious freedom to require that it certify its religious objections to contraception. Under the accommodation provided by the Obama administration for religious organizations, the group would be relieved of responsibility for providing or paying for insurance coverage of contraception. Douglas Laycock, a religious liberty advocate respected by conservatives as well as liberals, has said he believes the administration went to "remarkable lengths" to accommodate religious nonprofits.

But Becket calls the certification a "permission slip" for employees to obtain contraception from someone else, because signing the objection initiates the process by which an insurer provides the coverage directly to employees. That in itself strains what many would consider a substantial burden on the exercise of religion. What makes it even more of a stretch in this case is that the Little Sisters' insurer is classified as a church fund, which is exempt from the requirements of the ACA. So affirming its religious objection to contraception will not grant the groups' employees access to contraception coverage through the alternative route developed by the Obama administration.

Yet the Becket Fund says the Obama administration wants to force nuns to sign a form "forbidden by their religion" and "bully nuns into violating their religious beliefs" under the threat that it will "crush" the nun's ministry. In its brief to the Supreme Court seeking an injunction against enforcement of the ACA requirement, Becket criticized the government's argument that the Little Sisters can resolve the dispute simply by affirming their objection.

Such reasoning would, of course, resolve all religious liberty cases: Quaker conscientious objectors would suffer no penalties if they would just join the military; Jewish prisoners would suffer no burden if they would just eat the pork; Seventh Day Adventists would not lose their benefits if they would just work on Saturdays.

The Solicitor General's response argued that the Court was being asked to decide "whether a religious objector can invoke RFRA to justify its refusal to sign a self-certification that secures the very religion-based exemption the objector seeks." And it rejected Becket's analogies:

It is applicants' position, not that of the court of appeals, that would lead to absurd results in those cases, for it would seemingly mean that the Quaker could not be made to attest to his status as a conscientious objector before being absolved of his military obligations; that the Jewish prisoner could not be required to fill out a form saying he had a religious objection to the consumption of pork before he was provided an alternative meal; and that the Seventh Day Adventist could not be obligated to state that he had a religious objection to working on Saturdays before being relieved of his shift.

Becket is also counsel in the Hobby Lobby case, in which it is trying to expand the scope of RFRA by claiming that for-profit corporations can have religious beliefs and a religious conscience and should be allowed to exempt themselves from laws they don't like based on those claims. It's an effort to build on the Supreme Court's Citizens United decision: If for-profit corporations count as "persons" for the purpose of influencing elections, why can't those corporate "persons" have religious consciences that need to be protected? Under that principle, business owners could claim religious objections to all kinds of laws that protect their employees, including those that prohibit discrimination against women and LGBT individuals - not to mention collective bargaining rights and the minimum wage, which some conservative Christian leaders claim are un-Biblical.

It is worth noting that, unlike some conservative legal groups, the Becket Fund recognizes that religious liberty applies to people of every religion. It has taken action to protect the rights of religious minorities, including Muslims who faced resistance to the construction of a mosque and community center in Murfreesboro, Tennessee. At times it has stood with groups like the American Civil Liberties Union and People For the American Way Foundation.

But Becket can also be quick to deploy the Religious Right's culture war rhetoric against those who disagree with it. Back in March, in a case in which Becket was opposed by the American Civil Liberties Union and Americans United for Separation of Church and State, the group suggested that opponents of a school voucher program were "anti-Catholic bigots." In 2012, the Becket Fund co-sponsored a Manhattan Declaration event in Brooklyn; according to one report, Becket President William Mumma said that in today's culture wars, "religion is not an accidental victim, it is the target" for radical secularists. "When government tries to murder religion," Mumma is quoted saying, "it may murder religious liberty but not religion,' he promised, as faith will survive amid persecution."

As Becket and its clients know, people of many faiths, in many places, suffer brutally from religious persecution and religiously-motivated violence. While there are obviously intense, deeply felt disagreements about the contraception mandate, a good-faith effort has been made to accommodate them. You may disagree with where the line has been drawn, and you are free to ask the courts to draw it somewhere else. Indeed, some courts have agreed with Becket's position in cases involving the HHS mandate, and there are many court rulings to come before these immediate issues are resolved.

The inherent tensions between religious liberty and other constitutional principles like equality under the law will never be resolved completely by a single decision; public officials and courts will continue to make challenging balancing-act judgments. That means some people will inevitably believe that their rights have been violated or their interests harmed. But let's keep things in perspective. Crying "wolf" on religious persecution and portraying those who disagree on policy positions as enemies of faith and freedom poisons our political climate. Signing a form to opt out of a program you object to is not tyranny. Not even close.

This article originally appeared in The Huffington Post.

Republicans Obstruct Judicial Nominees They Supported Last Year

The Senate Judiciary Committee finally met this morning, only the second business meeting Republicans have allowed to happen since before Thanksgiving. But that doesn't mean the Senate GOP's campaign of petty obstruction is over.

Because of the escalated GOP obstruction at the end of last year, there was an unusually high number of nominees scheduled for a committee vote this morning. In this diverse group of 29 nominees, 14 were women or people of color, and eight would fill vacancies that have been formally designated as judicial emergencies.

Unfortunately, the one Republican who bothered to show up this morning used the opportunity to demand that all 29 be held over a week.

Committee rules let senators "hold over" (i.e., delay) committee votes without explanation. This has been done in the past on occasion when a nominee is controversial or if senators need more time to evaluate the nominee. But since President Obama took office, committee Republicans have exercised this right for all but five of his judicial nominees, no matter the circumstances, no matter the nominee, no matter what.

Among the 29 nominees delayed for no reason this morning are nine nominees who were approved by the committee last year but were denied a confirmation vote due to GOP obstructionism. All nine had been approved by the Judiciary Committee with strong bipartisan support, eight of them unanimously. All could and should have been confirmed weeks or even months ago; most had been waiting for a confirmation vote since October or earlier. Then as the congressional session ended, these nine were among the 55 nominees returned to the president, thereby forcing them to be renominated and sent through committee a second time.

The GOP's delaying of committee votes on nominees they already voted to approve is hardly responsible governance. It's just plain petty.

Another 15 of the nominees delayed today were scheduled for committee votes last year, but those votes were repeatedly delayed by the GOP. Ten of the nominees were scheduled for a vote on November 21, but Republicans refused to show up to the meeting and prevented a quorum. They were back on the agenda on December 12, along with five newly added nominees, but Republicans abused a procedural Senate rule to prevent the committee from even meeting. They finally allowed the committee to meet a week later, but demanded that all 15 nominees be held over.

And today, they were held over again, with no explanation.

This obstruction is petty, but it's not harmless. Americans need a federal court system runs smoothly and effectively. The Senate GOP is preventing that from happening, one delay at a time.


PFAW Writes Letter Supporting Nomination Of Debo Adegbile To Head DOJ Civil Rights Division

This week, People For the American Way sent a letter to every U.S. senator, urging them to confirm Debo Adegbile to head the civil rights division of the Department of Justice. Adegbile’s hearing before the Senate Judiciary Committee was this morning.

The letter [pdf] praises Adegbile’s civil rights record, which includes arguing two critical voting rights cases before the Supreme Court:

Because of its importance in enforcing laws eliminating barriers to equality and opportunity, the Civil Rights Division is a critical means by which Americans protect the promises and values of the United States Constitution. Among many other things, the Civil Rights Division is charged with helping to eliminate discrimination in employment, housing, and education. The Division also has the responsibility to protect the right to vote, which Thomas Paine rightly observed over 200 years ago is “the primary right by which other rights are protected.”

It is fitting, therefore, given the enormity of the Civil Rights Division’s responsibilities, that President Obama has nominated one of this generation’s preeminent civil rights litigators, the supremely qualified Debo Adegbile, to lead the Division. Adegbile’s career exemplifies a dedication to advancing the civil rights of all Americans. Before becoming senior counsel to the Senate Judiciary Committee, he spent more than a decade in various leadership positions at the NAACP Legal Defense and Educational Fund, overseeing civil rights litigation at both the trial and appellate level. As director of litigation, then as acting president, Adegbile not only developed expertise in the areas of education, economic justice, criminal justice, and nonpartisan political participation, he also exercised the type of significant administrative and leadership responsibilities that will serve the Civil Rights Division well. Firefighters, school custodians, public parks employees, and Katrina evacuees are just some of the ordinary people all across the nation whom Adegbile has helped.

Adegbile has special expertise in voting rights, and he has twice defended the constitutionality of the Voting Rights Act before the United States Supreme Court. He also worked extensively on the 2005-2006 legislative effort to reauthorize the Voting Rights Act, which led to overwhelming bipartisan majorities voting to renew the law in 2006.

Unfortunately, some conservative activists are opposing Adegbile’s nomination because they object to his civil rights record. We looked at some of those attacks over at Right Wing Watch today.


Rubio's Tea Party-Pandering, Unilateral Obstruction Blocks Historic Nominee

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Update (1/8/13): Last night, MSNBC All In host Chris Hayes explored the possible motivation behind Sen. Rubio's obstruction of William Thomas.


Yesterday, we learned that state judge William Thomas's historic nomination for a federal judgeship was dead, due solely to obstruction from Florida Sen. Marco Rubio. Thomas would have been the first openly gay African American man on the federal bench. Press outlets are once again quoting Rubio's inaccurate statements about Judge Thomas explaining why the senator has spent more than a year blocking a nominee who he initially had recommended to the White House.

Unfortunately, Rubio's opposition meant that Thomas was never afforded an opportunity to correct the record in a public hearing, under the current "blue slip" policy of Judiciary Committee Patrick Leahy. And as a nominee, he did not go to the press to defend his record. As the story fades from the headlines, Judge Thomas deserves better than to let Rubio have the last word.

After Rubio spent months refusing to explain why he was blocking the nomination, we finally learned last summer that he was supposedly concerned about Judge Thomas's "willingness to impose appropriate criminal sentence sentences" in two high-profile cases. The first involved the allegation that Thomas had given a light sentence to someone who had killed a cyclist in a hit-and-run accident. However, prosecutors hadn't charged the defendant for killing the cyclist. They had only charged him with leaving the scene of the accident, so that was the only crime Judge Thomas could sentence him for. Another Florida judge was so frustrated at the misinformation being reported about this case that he wrote a letter to Sen. Rubio correcting the record and explaining how the sentence was consistent with Florida's sentencing guidelines for the crime.

The second case supposedly showing inappropriate leniency toward criminals was a notorious murder case. Rubio criticized Thomas for having prevented prosecutors in that case from using evidence he concluded had been obtained unconstitutionally. (Rubio didn't actually address the legal merits of that decision.) But Judge Thomas's decision had come in 2006 (many years before the nomination), was widely reported at the time, and was well known when Rubio recommended Thomas for a federal judgeship. This was not new information. When the defendant was found guilty, Judge Thomas sentenced him to death. Shredding Rubio's purported justifications even further, the murder victim's mother thanked the court after the trial and said "we have completed justice."

If Sen. Rubio genuinely had a problem with the nomination, he could have publicly testified before the Judiciary Committee. But he did not dare do that, since his reasons were too flimsy to withstand the scrutiny he would have received from his fellow senators. Without a hearing, Judge Thomas was denied a venue to correct the record, Senators were denied the opportunity to evaluate his qualifications, and the people of Florida are denied the service of a highly qualified federal judge.

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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.