Lame Duck Opportunity and Obligation: Confirm Judges

Cross-posted from The Huffington Post.

During the upcoming lame duck session, the Senate has an opportunity to finish up a critically important task where they can act quickly by unanimous consent or voice votes: Confirming two dozen judicial nominees.

The GOP's behavior during their last few weeks as the minority party will be very telling. Before taking over the chamber next year, will they allow the Senate to do its job and confirm nominees? Or will Republicans continue their pattern of obstructing or delaying action on highly qualified nominees – even ones recommended to the White House by GOP senators – just because Democrats support them? This may give Americans some insight on whether Senate Republicans plan to use their newfound majority next year in a constructive manner, or whether they will continue to put destructive partisanship above the nation's welfare.

In September, senators left town without voting on any of the 16 district court nominees who had already been fully vetted by the Judiciary Committee and advanced to the Senate floor. Another eight district court nominees had their hearings in September and will be ready for committee approval the week the Senate returns, so the full Senate will be able to hold votes for them, as well. That's at least 24 district court vacancies that could be filled during the lame duck.

Eight of these would fill vacancies in three states – Texas, Georgia, and Kentucky – where the need is so great that the Administrative Office of U.S. Courts has formally designated them as "judicial emergencies." All three of these states are represented by Republican senators, including the future Majority Leader.

In the Northern District of Georgia, the workload has gotten so high that even if the nominees were confirmed tomorrow, it would not be enough to ensure Americans their day in court. That is why the nonpartisan Judicial Conference of the United States has urged Congress to create two new judgeships there.

The situation is even more dire in Texas, where the Senate has a chance to fill three vacancies in the Eastern and Western Districts. The Western District judgeship has been vacant since 2008, and the Judicial Conference has asked for five new judgeships there to carry the load on top of filling all the existing vacancies. Chief Judge Fred Biery discussed the need for new judges last year, saying, "It would be nice to get some help. We are pedaling as fast as we can on an increasingly rickety bicycle." Judge David Ezra, formerly of Hawaii, explained why he was moving to Texas to hear cases in the Western District: "This is corollary to having a big wild fire in the Southwest Border states, and fire fighters from Hawaii going there to help put out the fire."

The Eastern District of Texas is in similar need of getting its vacancies filled during the lame duck: Of the nation's 94 federal districts, only two have had more weighted filings per judgeship than the Eastern District, according to the Administrative Office of U.S. Courts' most recent statistics. Small wonder, then, that the Judicial Conference has asked for two new judgeships there: Even if every judgeship were filled, that just isn't enough. To make matters worse, two more judges in the Eastern District have announced their intention to retire or take senior status next year, making it all the more important to fill the current vacancies now.

(Senators also have another opportunity to help the people of Texas: Three nominees for the Southern District will likely have their committee hearings this month. Nominated by President Obama upon the recommendation of Sens. Cornyn and Cruz, these nominees can get a timely committee vote if the GOP cooperates, making them eligible to join the others on the Senate floor. Two of these vacancies are judicial emergencies, but even if they are filled, the Judicial Conference recommended that Congress create an additional two new judgeships to bring the Southern District up to an acceptable level of efficiency.)

There is no reason not to allow the Senate to vote on the judicial nominations before it. In fact, a number of Republican senators are on record supporting specific nominees from their state who they had recommended to the White House. For instance, back in June, Wisconsin's Ron Johnson urged "swift confirmation" for nominee Pam Pepper. Last spring, Pennsylvania's Pat Toomey said he would work to make sure that four nominees from the Eastern District would be confirmed "as soon as possible." During the summer, Illinois' Mark Kirk said he would "urge the full Senate to swiftly approve" John Blakey, who is expected to be approved by the Judiciary Committee later this month.

In past years, when the Senate was a more functional body, confirmation votes for district court nominees were regularly held by unanimous consent or voice vote, taking a few seconds or minutes at most. That includes during lame duck sessions.

For instance, after the 2002 midterms, even though Senate Democrats had lost control of the chamber in the elections, they worked closely with Republicans during the lame duck session to make sure that 20 of President George W. Bush's judicial nominees got confirmed. These included a highly controversial circuit court nominee who was confirmed by a 55-44 roll call vote. The other 19 were confirmed by voice vote, 18 of them on the same day. In 2014, as in 2002, the Senate can voice-vote all the consensus nominees and hold roll-call votes on the handful who may have some opposition.

If the majority is allowed to hold confirmation votes on the nominees who have been fully vetted and approved by the Judiciary Committee, this will finally let the president reduce the number of vacancies in America's court system to what it was when Bush left office. Republicans should cooperate in this endeavor rather than try to frustrate it. After all, this is basic governance, and something the Senate can do easily and quickly.

Will this happen without a fight? While we don't know for sure, recent GOP actions are not encouraging. For nearly a year, Republicans have filibustered every single judicial nomination without exception, even when they support the nominee. Obstruction continues even after the cloture vote. Absent unanimous consent to do otherwise, Senate rules require a period of "post-cloture debate" after a filibuster is broken: 30 hours for circuit and two hours for district court nominees. Since the rules also let the Democrats cede their half of the two-hour period for district court nominees, those post-cloture periods can be shortened. In recent months, Democrats and Republicans have often agreed to hold confirmation votes the day after the cloture votes without actually requiring that floor time be devoted to post-cloture debate on the nominee. This is what passes for GOP "cooperation" these days: A roll-call cloture vote with near-uniform Republican opposition, a delay of at least a day, and then a time-consuming roll-call confirmation vote for a nominee who usually has overwhelming if not unanimous bipartisan support.

The Constitution assigns to the Senate the job of deciding whether to confirm the president's judicial nominees. When the Senate is prevented from acting on this basic task in a timely manner, the entire third branch of the United States government atrophies. Americans are justly proud of our judicial system, which we count on to guarantee fairness and justice for all. It is not a controversial or partisan position to state that our courts should be staffed. And it should not be a controversial or partisan position to say that the Senate should be allowed to vote by year's end on whether to confirm the two dozen judicial nominees whose time would be better spent hearing cases rather than waiting out partisan senators.

PFAW

Let Freedom (and Wedding Bells) Ring

With the far-right Roberts Court, it's usually good news when they choose not to address a case, and that's especially so this morning: The Court announced it will not be hearing the appeals of any of the pending marriage cases.

That means the stays of the Fourth, Seventh, and Tenth Circuits' pro-equality rulings should be lifted and marriages should soon be allowed in Utah and Oklahoma (10th Circuit), Indiana and Wisconsin (7th Circuit), and Virginia (4th Circuit).

And in the other non-equality states in those three circuits, loving couples can now go to court and cite their circuit's ruling as binding precedent guaranteeing their right to marry. And they should win: Each circuit decision binds district courts and other three-judge appellate panels in the circuit. The only way to avoid the application of three-judge panel’s decision to other states in the circuit would be for there to be a contrary ruling by a panel - called an en banc panel - made up of all of the active appellate judges in that circuit.

Congratulations to the loving couples in those states for whom the Constitution's promise of liberty and equality will no longer be ideals withheld from them. This is a textbook case of the federal courts doing exactly what they were set up to do: vindicating those whose basic legal rights have been violated.

PFAW Foundation

Voting Rights Advocates Rack Up More Wins

Earlier this month, PFAW reported on what has gone right for voting rights at the state level in 2014. While there is much more work to be done to enact needed reforms and to step up and counter threats when the right to vote is under attack, states like Florida, Georgia, and North Carolina have shown that we can win.

Now we've uncovered even more evidence of why we can and should keep fighting the challenges that lay before us.

Voters themselves will get to decide what voter empowerment means in Illinois. House Speaker Michael Madigan's constitutional amendment providing "that no person shall be denied the right to register to vote or to cast a ballot in an election based on race, color, ethnicity, status as a member of a language minority, sex, sexual orientation, or income" passed both chambers and will be on the November ballot. A similar effort is afoot in Ohio.

Native American voters in Montana have seen two encouraging developments. In Jackson v. Wolf Point School District, an agreement was reached that will provide for five-single member school board districts in addition to one at-large representative, as opposed to the existing multimember districts that heavily favored the area's white population. Wandering Medicine v. McCullough, which challenges the availability of late registration and early voting for residents of the Crow, North Cheyenne, and Fort Belknap Reservations, will proceed following a failed motion to dismiss the case.

In Washoe County, Nevada, home to Reno and the state's second most populated county, voters have come to expect 14 consecutive early voting days. This year, though, county commissioners planned to eliminate the two optional Sundays that fall within that period. The American Civil Liberties Union and other allies organized quickly, sending a letter to Chairman David Humke and providing testimony at a commission meeting. Thankfully at that same meeting Chairman Humke announced that Sunday early voting was back on and warrants further study.

Tod Story, ACLU of Nevada Executive Director, said:

Early voting allows more people to participate in our democracy, and weekend voting is necessary for many hardworking Nevadans. Weekends are especially important days for voting drives, including for communities of faith

US District Judge Nelva Ramos told Texas legislators, much like US Magistrate Judge Joi Elizabeth Peake did in North Carolina, that their emails must be disclosed – albeit confidentially – in the ongoing Voting Rights Act challenge to the 2011 Texas voter ID law.

Huffington Post:

The United States argued that the emails could be the only existing candid evidence about the purpose of the legislation because Texas Republicans coordinated their talking points on the bill and refused to publicly engage with the concerns of minority legislators. If any of the emails reveal discriminatory intent, the U.S. will still have to argue to get them admitted as evidence during the trial phase of the lawsuit.

Finally, Utah is taking Election Day Registration for a test drive. Governor Gary Herbert has signed HB 156, which sets up an opt-in pilot program for counties and municipalities. The state will keep an eye on how they do and report back to the legislature for possible further action.

We can win, and let's not forget that.

Check out PFAW’s website for more voting rights updates.

PFAW

Fair Housing for LGBT People Rejected in Louisiana

On March 31, the day before the US Department of Housing and Urban Development (HUD) marked the beginning of Fair Housing Month, Louisiana lawmakers said "no" to affording greater protections for LGBT people under state housing discrimination law.

Under current law, Louisiana protects the ability "to compete for available housing on an open, fair, and equitable basis, regardless of race, color, religion, [and] sex." House Bill 804, introduced by Representative Jared Brossett of New Orleans, would have added to the list protections for sexual orientation, gender identity, gender expression, and marital status.

Unfortunately, Monday's House committee vote ended in a 13-5 defeat of Representative Brossett's bill.

Equality Louisiana has shown that Louisianans strongly support on the side of housing fairness:

Equality Louisiana polls shows 93.7% oppose LGBT housing discrimination

But the opposition didn't miss a beat. The Times-Picayune's Laura McGaughy reported:

Kathleen Benfield, from the conservative Christian organization the American Family Association of New Orleans, also testified against the bill on behalf of the Louisiana Family Forum's Gene Mills, who she said could not make the hearing.

She said the issue presented by the bill was "to protect certain sexual practices outside of marriage" and said this isn't a civil rights issue since sexual identity and gender expression are not "immutable" like race and "can change over time." She also said Brossett didn't present proof that homosexuals are being discriminated against in Louisiana.

"In my opinion, this legislation is a solution in search of a problem -- that there is not a problem," said Benfield.

Right Wing Watch has more on the American Family Association.

In other news on the fight for LGBT equality, Illinois moves toward banning sexual orientation conversion therapy while Minnesota falters on that front, and marriage equality developments continue to unfold in Michigan and Wisconsin.

Check out PFAW’s website for more LGBT equality updates.

PFAW

Behind the Scenes with the Right-Wing on Arizona's "Right to Discriminate" Bill

At the end of February, Right Wing Watch introduced us to the Center for Arizona Policy's Cathi Herrod, who helped lead the effort to pass a "right to discriminate" bill in Arizona.

Cathi Herrod of the Center for Arizona Policy accused the bill’s opponents of “incredible hostility to religion.”

“Our first freedom, our ability to live out our religious belief as our founders intended, as wars have been fought for our right to live out our religious belief, that is what is very much under attack,” Herrod said, adding that she is shocked that people would oppose the right-to-discriminate bill. “This was non-controversial until the last four or five days.”

She told Perkins that listeners should “pray for a miracle and to pray for an intervention” for the governor to sign the legislation.

Now that SB 1062 has been vetoed, we're learning more about the Center's involvement.

Documents recently obtained by Capitol Media Services detail meetings between the Center and Governor Jan Brewer's office.

“But the intent of the meetings, the purpose of the meetings, was to thoroughly vet the language, address their concerns, and make changes in the language pursuant to their concerns,” Herrod said. She said her organization addressed every concern raised by Hunter and Sciarrotta with the idea that this year’s version would not meet the same fate as a similar bill Brewer vetoed last year.

What led to this year’s veto, Herrod insisted, had nothing to do with the wording of SB 1062.

“Opponents made the bill about something it was not,” she said, with Brewer reacting to the highly vocal opposition, particularly from the LGBT community, rather than the language of SB 1062. “The governor vetoed a bill that didn’t exist.”

People For the American Way President Michael Keegan spoke earlier about the Right's influence:

In Arizona and across the country, Americans can see through the Right’s continued attempts to cloak anti-gay bigotry in the language of First Amendment rights. We hope that the pushback Arizona received this week will be a message, loud and clear, to the states with similar bills pending. Americans don’t want to live in a country where businesses have free rein to post a ‘No Gays’ sign.

In other LGBT news, Illinois continues implementing marriage equality; court cases progress in the Michigan and Virginia marriage battles; and Oregon Republicans stand up for the freedom to marry.

Check out even more news from our friends at GLAAD, the Victory Fund, and the Washington Blade.

PFAW

GOP Senators Fail to Support Their States' Judicial Nominees

Because of Republican refusal to let Majority Leader Reid hold confirmation votes, there are 32 judicial nominations languishing on the Senate floor. They could be confirmed in a day, and even in a few minutes. But with Republicans filibustering all judicial nominees, the Senate will have to spend weeks doing nothing but engaging in needless "post-cloture debate" before finally being able to confirm these 32 nominees.

All these nominees have had the support of their home-state senators, many of whom are Republicans. But with the GOP blocking votes on those same nominees, that support seems to be in name only.

For instance, Arkansas senators Mark Pryor (D) and John Boozman (R) were united in their strong support of nominees James Moody and Timothy Brooks before the Judiciary Committee last fall. Both nominees were approved by the committee unanimously, Brooks in October and Moody in November. But since then, Republicans have prevented them from having confirmation votes. Yesterday, Pryor went to the Senate floor to request unanimous consent to hold a confirmation vote, which Republican Chuck Grassley objected to. Boozman, however, did not speak up for the nominees or against his party's sabotage of the federal courts in Arkansas.

Such silence characterizes most if not all of the Republican senators who seem not to be protecting their states' nominees:

Illinois (Mark Kirk): Manish Shah (Northern District) and Nancy Rosenstengel (Southern District) were both approved by the Judiciary Committee by unanimous voice vote on January 16 and February 6, respectively. Rosenstengel would fill a vacancy that has been officially designated a judicial emergency by the Administrative Office of U.S. Courts.

Kansas (Pat Roberts and Jerry Moran): Nancy Moritz (Tenth Circuit) and Daniel Crabtree (District of Kansas) were both approved by the committee by unanimous voice vote on January 16. Crabtree would fill a judicial emergency and would fill a vacancy that opened back in 2010; Moritz's vacancy opened in back in 2011.

Maine (Susan Collins): Jon Levy has been awaiting a confirmation vote since January 16, when the committee approved him overwhelmingly. Sen. Collins spoke glowingly about Levy when he was nominated and when he appeared before the Judiciary Committee. But now what he needs is for her to have a conversation with her fellow Republicans about letting him have a confirmation vote.

Missouri (Roy Blunt): Douglas Harpool was unopposed when the committee approved his nomination on January 16. He would fill a seat that became vacant ten months ago when a sitting judge passed away.

Pennsylvania (Pat Toomey): Gerald McHugh and Edward Smith were both among those approved by the committee on January 16, Smith unanimously and McHugh with a bipartisan 12-5 vote. Sen. Toomey has noted that "Judge Smith will sit in the Easton courthouse, which has lacked a sitting federal judge since 2004, thus ensuring that the people of the northern Lehigh Valley will once again have close, ready access to the federal judiciary." But unless Toomey can get his party to relent, the people of the northern Lehigh Valley will have to wait.

Tennessee (Lamar Alexander and Bob Corker): Pamela Reeves, who would be the first woman federal judge in the state's Eastern District, was approved by the Judiciary Committee by unanimous voice vote in November, yet has not been allowed a simply yes-or-no vote. Since then, she has been joined by Sheryl Lipman, who was similarly approved unanimously last month.

Utah (Orrin Hatch and Mike Lee): Carolyn McHugh would be the first woman from Utah to serve on the Tenth Circuit. Both her senators are actually on the Judiciary Committee. Last year, Hatch said he hoped the Senate would "act quickly" in confirming her, and Lee said he would work to "ensure her speedy confirmation." But this year? Despite her unanimous approval by the Judiciary Committee, Hatch and Lee's party hasn't allowed her to take her seat on the Tenth Circuit.

Wisconsin (Ron Johnson): James Peterson would fill a seat that has been vacant for more than five years, and which has been designated a judicial emergency. Last year, Sen. Johnson recommended him to the White House and urged his fellow Senators toward a "swift confirmation." He was approved with overwhelming bipartisan support by the Judiciary Committee last week, but he and the two other nominees advanced that day found themselves at the back of a line that already had 29 people on it. If Johnson wants a "swift confirmation," he might ask his fellow Republicans to let up and allow votes on all those other nominees.

In all these cases, courtroom vacancies could be filled if only Republicans would allow it. Each of these Republican senators has to decide whether GOP leader Mitch McConnell deserves a show of loyalty more than their constituents deserve a fully functioning system of justice.

PFAW

Illinois to Become 15th Marriage Equality State

It’s been an exciting few days for supporters of LGBT equality. Following last night’s Senate cloture vote on the Employment Non-Discrimination Act, today the Illinois House passed a bill allowing same-sex couples to marry, setting the stage for Illinois to become the 15th state in the nation with full marriage equality. One version of the bill has already been passed by the Illinois Senate, and Governor Pat Quinn has promised to sign it. When he does, thirty percent of our nation’s states will have marriage equality.

PFAW has been on the ground in Illinois, supporting the push for marriage equality in any way we can. In addition to providing lobbying training materials so Illinois voters could bring their support for equality directly to their elected officials through calls, emails, and in-person visits, PFAW members joined thousands of friends in the March on Springfield for Marriage Equality last month.

In what the CEO of Equality Illinois has called the “national march toward full recognition of the dignity of all gay and lesbian couples,” Illinois has brought us one state closer to full marriage equality nationwide.  And while 15 states represents real momentum, we won’t stop until every committed couple in the country has access to the legal protections they need to take care of each other and their families.
 

PFAW

Thousands March, Demand Illinois House Vote On Marriage Equality Bill

On a cold, wet Tuesday this week, People For members joined an estimated 2,000 marriage equality supporters at the Illinois State Capitol in Springfield for the March on Springfield for Marriage Equality. For two full hours prior to marching around the capitol complex, activists rallied for same-sex marriage, with major news cameras rolling.  Scores of activists, entertainers, politicians, and faith leaders called on the Illinois House of Representatives to pass SB 10, a bill legalizing marriage for same-sex couples which was passed by the Illinois State Senate early in 2013.


Highlights from the rally included out gay country singer Steve Grand performing his hit “All American Boy,” the Chicago Gay Men’s Chorus and Windy City Gay Choirs, and independent artist Sonia; along with a lineup of other performers and speakers demanding that House Speaker Michael Madigan hold a vote on SB 10.  In the middle of the event, Illinois Governor Pat Quinn made an appearance.  With a pen in hand, Quinn said he was ready to sign the bill into law as soon as the House passes it, evoking a roar from the 2,000 attendees.  U.S. Senator Dick Durbin, Illinois Attorney General Lisa Madigan (daughter of the Speaker), State Comptroller Judy Barr-Topinka, and Secretary of State Jesse White all voiced their endorsements of SB 10.

But the biggest reaction of the day came from keynote speaker Bishop Carlton D. Pearson of the Churches of God In Christ, who called on the Illinois Legislature to “pass the damn bill” and foster a society of fairness, social justice, and inclusion in Illinois.  In the style of a sermon, Pearson delivered a powerful address, apologizing to the LGBT community on behalf of the evangelical Christian community for the lack of compassion previously given to them by some Christian leaders.


Following Pearson’s rousing speech, marchers funneled to the sidewalks surrounding the Capitol Building, at one point nearly completely encircling the complex with their numbers.  Check out this gallery of photos from the rally, and the recorded livestream of the event.

PFAW

Keeping ALEC In The Spotlight

Last week, ALEC held its 40th annual meeting in Chicago-- but they weren’t alone.

 

Over 3,000 people, including many PFAW members, came to protest ALEC’s extreme agenda and influence over the thousands of their lawmaker members, including some hard-hitting protests against ALEC’s success in getting “Stand Your Ground” laws on the books in so many states. You can read coverage of the event and see video at Occupy America. Be sure to also check out the Center for Media and Democracy’s new report on ALEC and 466 ALEC “model” bills that have been introduced just this past year, including:

  • 52 bills to enact or tighten voter ID restrictions
  • 71 bills limiting access to the courts, making it more difficult for citizens to hold corporations accountable when their products or services result in injury or death
  • 117 bills affecting wages and worker rights, including bills to preempt local living wage ordinances

These protests were a real victory in showing ALEC that their secret’s out and we know what they’re up to.  But the fight against ALEC’s extreme agenda didn’t end with last week’s protests. If we’re going to put a stop to their hidden influence, we can’t let our lawmakers think we’re not paying attention. We can’t let them continue to take their orders from ALEC’s corporate backers instead of their constituents. We can’t let them allow ALEC to subvert our democracy.

Take a look at our Activist Toolkit to see what you can do to keep the pressure on ALEC and their members.

PFAW

PFAW Crashes ALEC’s Party at Biggest Anti-ALEC Protest to Date


All photos by Scott Foval.

Bill Moyers once called ALEC (the American Legislative Exchange Council) the “most influential corporate-funded political force most of America has never heard of.”  Today, PFAW is helping to change that – coming out in full force to shed some light on the harm ALEC’s extreme agenda causes to everyday Americans.

As ALEC holds its 40th annual meeting in Chicago, PFAW is there – along with ally organizations, labor groups, and advocates from around the country – to crash their party.  The protest happening now outside Chicago’s Palmer House Hilton is the biggest anti-ALEC protest to date. 

The mass of people at the rally underscores the growing momentum to expose and fight back against ALEC, which connects corporate lobbyists with state legislators to pass special interest legislation in all fifty states.  For four decades, ALEC has worked behind closed doors to get laws harmful to everyday Americans on the books – working against paid sick days, pushing tax policies favoring the rich, and helping “Stand Your Ground” become law in more than two dozen states.  As our signs say, “ALEC corporations write laws, real people suffer.”

And today, we’re calling them out.

PFAW