Fifth Circuit Upholds Extreme Abortion Restrictions in Texas

On Tuesday the Fifth Circuit federal appeals court upheld most of Texas’ stringent anti-abortion law, which could leave as few as seven clinics open in the nation’s second largest state. The U.S. Supreme Court temporarily blocked these restrictions in October; however, the Fifth Circuit’s ruling allows the law to stand, ushering in a likely wave of clinic closings for the Lone Star State.

The Associated Press explains how the law works:

 The decision by the 5th U.S. Circuit Court of Appeals allows Texas to enforce Republican-backed restrictions that require abortion clinics to meet hospital-level operating standards, a checklist that includes rules on minimum room sizes, staffing levels and air ventilation systems.

This decision represents an endorsement of a long series of right-wing initiatives to chip away at the rights protected by Roe v. Wade. By pushing unnecessary laws targeting abortion facilities, the Right can mandate costly renovations that create a needless economic strain on clinics. For example, the Texas law requires abortion clinics to abide by the same standards as hospital surgical centers, despite the fact that many clinics solely provide medical abortions, which do not involve surgery. The Supreme Court has said that states may not pass laws with the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion. But the court yesterday turned a blind eye to the obvious in order to further the Right’s anti-choice agenda.

A panel of three judges, all appointed by George W. Bush, delivered the decision, which will force facilities across the state to shut their doors and leave women hundreds of miles away from a licensed abortion provider. Verdicts from the ultra-conservative Fifth Circuit bench, like the decision in October letting Texas enforce strict voter ID laws, highlight the importance of who sits on our nation’s courts.  Although Fifth Circuit has two longstanding vacancies, Republican obstruction has prevented the filling of these seats. Tuesday’s decision further exemplifies the critical need for fair and just courts, particularly as right-wing legislators continue their relentless attack on the rights established by Roe.

PFAW

Cornyn and Cruz Are Devastating Texas Courts

It is no exaggeration to say that the federal court system in Texas is in dire straits. Anyone doubting that need look no further than the state's two senators, John Cornyn and Ted Cruz.

Even with judicial nominees they themselves recommended, Cornyn and Cruz don't lift a finger to help to prevent delays in committee or on the floor. Just ask Jose Rolando Olvera, who was denied a floor vote until nearly three months after his approval by a unanimous Judiciary Committee in February. That's particularly ironic, since at Olvera's hearing, Cornyn had said that he and Cruz would push for his "swift confirmation."

But even worse than this snail's pace post-nomination is the senators' foot-dragging pre-nomination, as they delay making recommendations to fill vacancies in the state's federal courts.

Even if there were no vacancies in Texas, the state would need more judges: The Judicial Conference of the United States has asked Congress to add eight new judgeships in the Lone Star State.

But Texas, in fact, does have judicial vacancies – nine of them, seven of which have been designated as judicial emergencies (meaning the current caseload is too much for the judges to handle). Not one has a nominee, because Cornyn and Cruz have shown little interest in recommending nominees to the White House in anything approaching a timely manner.

They have put together a Federal Judicial Evaluation Committee to vet potential nominees and make recommendations to the senators. But they wait absurdly long after learning about a vacancy before tasking the Evaluation Committee to address it, guaranteeing that the vacancy rate will remain needlessly high.

For instance, in April, the senators announced that the Evaluation Committee was accepting applications for vacancies in the Eastern District (Plano) and the Western District (Midland), both of which are judicial emergencies. This was two months after the Midland vacancy opened, but Cornyn and Cruz's delay was far longer than "just" two months. Midland Judge Robert Junell had actually announced his plans to go into semi-retirement more than a year in advance, in January of 2014. Waiting 15 months after learning of a planned vacancy before even beginning the process to fill it is hardly a sign of deep commitment to the federal courts in Texas.

As for the Eastern District seat in Plano, it had become vacant a month earlier when Judge Richard Schell took senior status. But Judge Schell's plans had been formally announced in March of 2014, a year in advance, and they were known even earlier than that, in January of 2014. Nevertheless, the senators chose to wait more than a year to activate their Evaluation Committee.

That Plano vacancy isn't the only one in the Eastern District. Almost a full year ago, in June of 2014, Judge Leonard Davis announced that he would be taking senior status in May of this year. That left more than enough time for a replacement to be identified by the senators, nominated by the White House, and confirmed by the Senate. After all, that's the reason departing judges tend to make their plans known so long in advance. However, Senators Cornyn and Cruz still have not publicly asked their Evaluation Committee to start work on this vacancy. As a result, the vacancy opened two weeks ago without a nominee. To no one's surprise – but to the detriment of people in Texas – it was immediately designated a judicial emergency.

The April directive to the Evaluations Committee was actually the second one this year. In January, they directed it to start vetting applicants for vacancies in the Southern District (Corpus Christi) and the Northern District (Lubbock). The Lubbock vacancy had just opened, but it had been announced nearly six months in advance. The Corpus Christi seat has been vacant since Judge Janis Jack took senior status in 2011.

And last July, the senators tasked their committee to begin work on vacancies in the Southern District (Galveston) and the Northern District (Dallas). The Dallas vacancy had been announced in April 2013, more than a year before. The Galveston vacancy had opened just a few weeks earlier when Judge Gregg Costa had been elevated to the Fifth Circuit, but he had been nominated with the senators' full support in December of 2013, so this, too, was a vacancy that was known well in advance.

Yet even though these long-delayed Evaluation Committee processes have finally begun, they have still resulted in a total of zero nominees so far.

Then there are the two longstanding judicial emergencies at the Fifth Circuit. Traditionally, home state senators play a much smaller role in filling circuit court seats than they do with district court seats. Nevertheless, the White House has long been consulting extensively with Cornyn and Cruz, who have apparently stated their opposition even to moderate district judges originally recommended for those positions by Republicans.

So it is not a surprise that Texas has nine vacancies without nominees, seven of them judicial emergencies. John Cornyn and Ted Cruz seem to be doing everything they can to maximize the number of vacancies available for (what they hope will be) a Republican president to fill starting in 2017, heedless of the harm this does to their constituents.

Senator Cornyn recently blamed the White House for the vacancies he and Cruz have fostered:

We can't nominate the judges. The president has to nominate the judges.

Given the senators' deliberate and successful sabotage of the federal court system in Texas, the President would be more than justified in going forward with nominations to these vacancies. Then Senators Cornyn and Cruz should press for fair hearings before the Judiciary Committee on which they both serve.

PFAW

Cornyn and Cruz Haven't Helped Their Own Judicial Nominee

The Senate is heading toward a weeklong Memorial Day recess with no sign that Majority Leader McConnell will schedule a vote to confirm a long-waiting judicial nominee from Texas. If Jose Rolando Olvera is not confirmed to the Southern District this week, it will be only the latest failure for Texas Senators John Cornyn and Ted Cruz in looking after their state's federal courts.

The state has ten judicial vacancies, eight of which are judicial emergencies, and only one of which even has a nominee, despite extensive White House efforts to reach out to the senators.

But the focus this week is on Olvera. He was among four district court nominees – three Texans and one Utahan – approved unanimously by the Judiciary Committee way back in February. Three months later, McConnell has allowed the Senate to vote on only two of them, the only judges confirmed so far in the 114th Congress. It is hard to imagine a legitimate reason to delay a vote for so long and deliberately keep a judicial vacancy open longer than necessary.

President Obama nominated Olvera after he was recommended by Cornyn and Cruz, and they praised Olvera and his fellow Texas nominees at their confirmation hearing in January. Yet on February 12, when committee chairman Chuck Grassley delayed a previously scheduled vote by two weeks without offering a reason, not a squeak of protest could be heard from either Cornyn or Cruz, both of whom are members of the Committee.

After they finally cleared the committee, they faced more obstruction, this time from McConnell, who didn't schedule votes on any of these unopposed consensus district court nominees until mid-April. The Utah nominee is finally get a vote later today. But with the Senate planning to leave town until June, Olvera's nomination is still languishing.

In the meantime, people and businesses in Texas suffer from the lack of enough judges. The vacancy Olvera would fill has been formally designated a judicial emergency by the Administrative Office of U.S. Courts, meaning there aren't enough judges to handle the caseload.

In fact, the situation in the Southern District is so bad that the Judicial Conference of the United States (headed by Chief Justice John Roberts) has asked Congress to create two additional judgeships there. In other words, even with every vacancy filled and senior (semi-retired) judges carrying a significant caseload, Texans seeking to protect their legal rights would still be denied their right to a timely day in court.

Surely if the senators had wanted this vacancy filled in a timely manner, it would have been filled already. After all, John Cornyn isn't just some back-bencher. As the Senate Majority Whip, he occupies a powerful leadership position.

The Senate should have confirmed Olvera months ago. There is certainly no excuse for the Senate to leave town for Memorial Day recess without confirming Olvera to the bench and allowing him to take up his judicial responsibilities as soon as possible.

Cornyn and Cruz cannot get a timely confirmation vote in a Senate controlled by their own party for an uncontested district court nominee who they themselves recommended to the White House. Or perhaps they can but choose not to. Either way, that's pitiful.

PFAW

McConnell Should Let Senate Confirm Judges

Majority Leader Mitch McConnell has yet to schedule a confirmation vote on the four district court nominees who cleared the Judiciary Committee without opposition nearly two weeks ago: Jill Parrish for the District of Utah, and Alfred Bennett, George Hanks, and Jose Rolando Olvera for the Southern District of Texas.

Texas in particular is in desperate need of more federal judges. The Lone Star State has a shocking 11 judicial seats currently vacant (with a twelfth one opening this spring). In fact, the eleventh vacancy opened just today. This opening came as no surprise: Judge Richard Schell of the Eastern District announced back in January of 2014 that he would be taking senior status. Texas Sens. Cornyn and Cruz could have recommended an acceptable nominee to the White House in time for that person to have been fully vetted, nominated, and confirmed last year. Unfortunately, that did not happen; no nomination has been made yet.

Of those eleven vacancies, seven have been designated judicial emergencies. That's nearly one third of all the judicial emergencies nationwide. Confirming the three Texas nominees who have been waiting for Senator McConnell to schedule a floor vote would help alleviate this problem.

All three would serve in the Southern District of Texas, which will still have an additional two vacancies remaining even after these nominees are confirmed. McConnell's delay is adding unnecessarily to the strain on the area's federal court system.

Just how bad is that strain? The Judicial Conference of the United States has asked Congress to create an additional two judgeships in the Southern District of Texas. In other words, even if all three pending nominees were confirmed today, and the other two vacancies were magically filled tomorrow (even though they don't have nominees), the crushing caseload burden on the Southern District is so bad that at least another two judges would be needed to ensure that the people of Texas have access to a fair and efficient federal court system.

A confirmation vote on the Texas (and Utah) nominees is long overdue.

PFAW

Republican Inaction as Judicial Emergencies Jump

Yesterday we blogged about how the Senate Judiciary Committee and Chairman Chuck Grassley ought to move judicial nominations next week when they return from recess. We noted that the number of vacancies has increased from 39 at the end of last year's lame duck session to 46 today, with fourteen of those officially designated as judicial emergencies.

Well, we've had developments since yesterday's post. First, next week's committee schedule is up, and no hearings have been announced for judicial nominees.

And secondly, the Administrative Office of U.S. Courts this morning designated an additional five vacancies as judicial emergencies, so the total has jumped from 14 to 19.

These new emergencies include one in the Northern District of Texas, which has been vacant since July of 2013 and which had been announced in advance in April of that year. Yet it was not until last July that Sens. Cornyn and Cruz announced a process to identify Northern District recommendations to the White House. Perhaps if they had not waited more than a year after being notified of this vacancy, it would be filled today. Instead, there is no nominee yet, and a vacancy that should not still exist is instead a judicial emergency.

Texas now has seven judicial emergencies, more than a third of the national total. Two of them have nominees who should have advanced to the Senate floor last week, but were delayed when Republicans decided to delay the scheduled committee vote on four fully vetted district court nominees by two weeks simply because they could.

Another of the newly designated emergencies is in the Third Circuit. The good news is that district court judge L. Felipe Restrepo was nominated to fill this seat way back in November, and that he has the enthusiastic support of his home state senators, Democrat Bob Casey and Republican Pat Toomey. The bad news is that Chairman Grassley continues not to schedule a hearing for this highly qualified nominee (or any other). With this vacancy now a judicial emergency and a second vacancy on the circuit opening in July, the decision to slow-walk this nomination is even more harmful.

So as of today, the number of judicial emergencies has jumped from 12 at the beginning of the year to 19 today. Senate Republicans can and should do much more to get that number moving back down.

PFAW

Ted Cruz Vows to Damage Texas Courts in Response to Obama's Immigration Action

In response to President Obama's upcoming action on immigration, Texas Sen. Ted Cruz has vowed to retaliate by sabotaging the federal court system in his own state.

No, that's not how he phrased it, but that would be the impact of his vow. Yesterday in Politico, Cruz wrote how he thinks the Senate should respond to the president's policy decisions on immigration enforcement:

If the president announces executive amnesty, the new Senate majority leader who takes over in January should announce that the 114th Congress will not confirm a single nominee—executive or judicial—outside of vital national security positions, so long as the illegal amnesty persists.

While such a refusal to perform one of the basic functions of the Senate would harm the entire nation, the damage in Texas would be particularly severe. No state has more judicial vacancies than the Lone Star State. No state even comes close.

As of today, Texas is suffering from eleven current federal court vacancies, with another four known to be opening in the next few months. The White House has worked closely with Sens. Cruz and Cornyn to identify potential nominees, but progress has been slow: Only six of the vacancies even have nominees; three of these have not yet had their committee hearings.

But the other three – for the Eastern and Western Districts – advanced through the Judiciary Committee this morning and are now ready for a confirmation vote by the full Senate. All three would fill vacancies formally designated as judicial emergencies by the Administrative Office of U.S. Courts. Confirming them would be a good start at addressing the vacancy crisis in Texas.

And that's what is it: a crisis. As we wrote earlier this month in a Huffington Post piece entitled Lame Duck Opportunity and Obligation: Confirm Judges:

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.

Even if the three nominees are confirmed during the lame duck, as they should be, more vacancies in both of those districts will open up early next year. Texas would still have eight vacancies, a number that would rise to twelve in the next few months.

To express his fury at President Obama and rally his right-wing base, Cruz would work to make sure that all these vacancies remain unfilled, which would hurt a lot of innocent Texans.

PFAW

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

John Roberts, Calling Strikes and Strikes

In 2005, when John Roberts was seeking to persuade the Senate that he should be confirmed as Chief Justice, he famously (and misleadingly) likened Supreme Court Justices to baseball umpires, simply calling balls and strikes. To use his analogy, last week's ruling on voter ID in Texas showed just how far the umpire will go to rig the game.

Earlier this month, district court Judge Nelva Gonzales Ramos ruled that the voter ID law could not be enforced. Her careful consideration all of the evidence presented at trial led her to conclude that the Texas statute didn't simply have a racially discriminatory impact (as if that wasn't bad enough), but that state lawmakers had actually intended to make it harder to Latinos and African Americans to vote. She found that the law violated the 14th Amendment, the 15th Amendment, and the 24th Amendment (prohibiting poll taxes).

Not surprisingly, Texas wants to enforce the law during this year's election, while its appeal is pending. After all, if a law designed to obstruct people of color from voting isn't allowed to be enforced during the election, then what's the point? Less than a week after Judge Ramos issued her ruling, a three-judge panel of the Fifth Circuit granted Texas's request for a stay. The two George W. Bush-nominated judges on that panel wrote of the irreparable harm to Texas if its law were not enforced, with little concern about the irreparable harm to the law's targets if it were enforced.

So voting rights advocates asked the Supreme Court to vacate the appeals court's stay. But last week, over the dissent of at least three Justices, the Roberts Court denied that request, meaning that Texas can enforce the law during the current election. Although the Court did not provide its reasoning, they presumably believe that the state's interest in enforcing a law found to be intentionally discriminatory is greater than the interests of those targeted by the law.

What a terrible message the hard-right conservative judges are sending Latinos and African Americans: We just don't think your rights are important.

Using the baseball metaphor, even when the pitcher intentionally beans the batter, Umpire Roberts and his conservative colleagues will call it a strike. The umpire takes sides, and tough luck if you're on the wrong team.

But this isn't a baseball game, and Americans can do more than just boo from the stands: We can vote, and we can get our friends, family, coworkers, neighbors, and anyone else we know to vote. When we vote for Senate, we're picking the people who will vote on whether to confirm or block the next Supreme Court nominee. What better to way to prove to the Roberts Court that we all matter?

PFAW Foundation

Fifth Circuit's Voter ID Decision Shows the Attitude of Bush's Judges

Last week, a federal district court judge concluded that Texas's strict voter ID law (SB 14) violated both the Constitution and the Voting Rights Act. Judge Nelva Ramos concluded that the law was passed with illegitimate motives:

This Court concludes that the evidence in the record demonstrates that proponents of SB 14 within the 82nd Texas Legislature were motivated, at the very least in part, because of and not merely in spite of the voter ID law's detrimental effects on the African-American and Hispanic electorate. As such, SB 14 violates the VRA as well as the 14th and 15th Amendments to the Unites States Constitution.

Nevertheless, yesterday, a three-judge panel of the Fifth Circuit ruled that Texas can hold this fall's elections under the voter ID law anyway. Although the ruling was unanimous, the two Bush-43 judges on the panel (Edith Brown Clement and Catherina Haynes) took a very different approach to the case than did the Obama nominee.

Judge Gregg Costa, the court's newest member, wrote in his short concurrence:

The district court issued a thorough order finding that the Texas voter ID law is discriminatory. We should be extremely reluctant to have an election take place under a law that a district court has found, and that our court may find, is discriminatory. … I agree with Judge Clement that the only constant principle that can be discerned from the Supreme Court's recent decisions in this area is that its concern about confusion resulting from court changes to election laws close in time to the election should carry the day in the stay analysis. … On that limited basis, I agree a stay should issue.

Those recent Supreme Court actions Judge Costa cites are hard to interpret, since they came with no explanation. But they also didn't involve a judicial finding of intentional racial discrimination in violation of the Constitution, which we have in this case.

While Costa's concurrence was only a paragraph, the Bush judges' opinion went on for many pages. Judge Clement (joined by Judge Haynes) wrote that Texas will be irreparably harmed if the stay is not issued: "When a statute is enjoined, the State necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws."

But what is the public interest in enforcing a law that a district judge concluded was passed with the intent to make it harder for African Americans and Latinos to vote? What interest does Texas have in enforcing a law that violates the Constitution?

The two Bush-43 judges also stated critically that Judge Ramos didn't give a reason for applying the injunction so close to the beginning of an election, even though Texas warned it would disrupt the election process.

Perhaps "disrupting the election process" is warranted when that process has been intentionally designed to disenfranchise targeted groups.

While all three judges agreed to stay the district court's ruling and allow Texas to enforce its voter ID law, the different approach taken by Bush and Obama judges is notable.

PFAW Foundation

Texas Judge Could Teach the Roberts Court a Thing or Two

Late yesterday, federal district Judge Nelva Gonzales Ramos struck down Texas' restrictive voter ID law. Judge Ramos found that it creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect on African Americans and Latinos, and is an unconstitutional poll tax. Most importantly, a careful analysis of the record led her to conclude that the law was passed with an unconstitutional discriminatory purpose.

This is a terrific development for those who care about the right to vote. And the fact that the discrimination was intentional triggers Section 3 of the Voting Rights Act, which permits Judge Ramos to subject Texas to the same type of preclearance conditions it was subject to under Section 5, before the notorious Shelby County decision. She is expected to decide whether to pursue that course of action within the next few days.

This is a textbook case of why courts matter, and why it matters who sits on those courts. Texas citizens' right to vote was being threatened by their own state government, in clear violation of the law. The federal courts have now stepped in to make sure the promises of the U.S. Constitution are kept.

The opening of Judge Ramos' opinion makes clear that she recognizes the preeminent importance of the right to vote:

The right to vote: It defines our nation as a democracy. It is the key to what Abraham Lincoln so famously extolled as a "government of the people, by the people, [and] for the people." The Supreme Court of the United States, placing the power of the right to vote in context, explained [in 1964]: "Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized." [footnotes removed]

She could teach a thing or two to the five conservatives on the Roberts Court, whose Shelby County ruling gave the green light to politicians in Texas and elsewhere eagerly seeking to make it harder for certain people to vote.

PFAW Foundation