No Justice for Anyone Until All Lives are Valued

This weekend, thousands of Americans from all walks of life took to the streets to protest the unaccountable deaths of unarmed African American men at the hands of police officers.
 
The multiethnic, multi-racial, multi-generation, LGBT and straight crowds filling streets in major cities were reminiscent of demonstrations that we have seen so many times before: marches for civil rights, women’s rights, gay rights, workers’ rights.Those marching this weekend recognized that after so many struggles and so many victories, we are still struggling to build a society that treats every human being with dignity under the law.

Something is wrong in America when people of color — particularly African American men and boys — do not feel safe in their own communities. Something is wrong when that sense of unease comes from the very systems we all have been taught to respect, honor, and count on for trust and protection.

This journey has never been easy, and has never moved forward without fearless social movements. Even after the passage of the Emancipation Proclamation and the 13th, 14th and 15th amendments to the U.S. Constitution, our laws encoded racial segregation for decades and enabled an explicit system of control over Black lives. Even then, African Americans were subjected to the Tuskegee experiment, witnessed the assassination of Dr. Martin Luther King, Jr., mourned the 1985 police shooting of 66-year-old Eleanor Bumpurs. In our history, just as in our present reality, African Americans have faced a dramatically different justice system from the one that white Americans experience.

Tamir Rice, a 12-year-old boy with a toy gun, is shot dead in a park because he is seen as a threat. A father, Eric Garner, allegedly selling cigarettes on a streetcorner dies at the hands of a police officer, and the case never goes to trial. Death without trial is seen as an appropriate punishment for Michael Brown, a teenager who may have stolen a box of cigars. These cannot be trivialized as flukes, or as isolated acts. They are the products of a justice system that still does not value or see all Americans equally.

Those who are involved in any struggle — for the recognition of the humanity of people of color, of immigrants, of women, of LGBT people — must recognize that when a justice system puts one group at risk for rights denied, every group is at risk. No struggle for civil rights will be complete until this injustice is rectified and yes, it can be rectified. But it will require getting to the root causes of racial injustice to forge a democracy that truly represents all of us and build a justice system that protects all Americans.

This past weekend demonstrators, in a unified voice, demanded stronger laws against racial profiling, special prosecutors in cases of police misconduct, and the demilitarizing of police forces. These are reasonable, doable demands. But the solutions must also also go beyond the criminal justice system.

Those of us fighting any civil rights fight must open our eyes and keep them open to the truth that all men are not treated equally in America. Because of this, the voices of four mothers who have lost their sons – Trayvon, Jordan, Michael and Eric – have become a call, a movement for justice like nothing seen in the past decade. There can be no justice for any of us until we consider all lives fully human, fully worth living.

PFAW Foundation

Michigan’s Lame Duck Session Ends Without Passage of “Right to Discriminate” Bill

In a victory for LGBT equality and genuine religious liberty, Michigan’s state legislature ended its 2014 lame duck session last night without passing a bill that would have allowed individuals and businesses to cite religious beliefs to bypass state anti-discrimination laws.

The Michigan Religious Freedom Restoration Act would have allowed business owners to refuse service to LGBT customers, and was initially introduced as a counter to a proposed state bill that would protect LGBT people from discrimination. But while the anti-discrimination bill never even moved, the discriminatory bill passed in the House.

After the bill was introduced in the state legislature, PFAW members and local activists mobilized to call lawmakers and raise awareness of the bill’s dangerous consequences for LGBT Michiganders. Efforts like this are not unique to Michigan and come in the wake of this year’s 5-4 decision by the Supreme Court in the Hobby Lobby case. This legislation is part of a nationwide campaign by the Right to hijack freedom of religion and use it as a weapon to deny Americans their fundamental rights.

Fortunately, the bill -- which has been called the “right to discriminate” bill by some – did not even come to the State Senate floor for a vote.

This was the second of two victories in the Michigan state legislature’s lame duck session. Earlier this month, Michigan Republicans introduced a bill that would change the way the state’s electoral votes are counted in presidential elections. This strategy isn’t unique to Michigan, but is part of a larger right-wing effort to use Republican election victories in blue and swing states to consolidate political power by rigging the Electoral College, tilting the playing field to the GOP’s advantage. Last year, PFAW helped beat back similar plans in Pennsylvania and Virginia that would have changed the way those states apportion their electoral votes. In Michigan, we were just as engaged, with our members and staff attending committee hearings and lobbying legislators.

With the passage of a key deadline last week, the Electoral College rigging bill is also effectively dead for the year. But its proponents can (and likely will) bring it up again in the 2015 session – as they may also do with the “right to discriminate” bill. Michigan’s lame duck session has ended without either of these insidious bills becoming law, but the fight is far from over. We expect to see similar state-level legislative attacks from the Right throughout the next year. PFAW is proud to be a leader in the ongoing fight against right-wing extremism, and we’re ready to keep working in defense of progressive values in 2015 and beyond.

PFAW

Federal Judge Gives History Lesson on Anti-Gay Discrimination

The federal court ruling striking down Mississippi’s ban on same-sex couples getting married is worth reading for many reasons. Paul wrote earlier about U.S. District Judge Carlton Reeves’s compelling explanation of the role of the courts in protecting Americans’ constitutional rights. The ruling is also filled with rich historical detail about the extent to which the state of Mississippi and the federal government have discriminated against LGBT citizens over the years, as well as the ways in which groups like the Ku Klux Klan and the notorious Mississippi State Sovereignty Commission used anti-gay rhetoric and innuendo in their attacks on African American civil rights leaders and institutions.

This history is an important rebuttal to bogus claims by anti-gay activists that gay people do not need to have their rights protected in law because they have never suffered from discrimination.

Quotes from the opinion, with citations removed for readability:

Any claim that Mississippians quietly accommodated gay and lesbian citizens could no longer be made in the 1960s, when prejudice against homosexuals (and other groups) became more visible during the civil rights movement. Segregationists called their opponents “racial  perverts,” while U.S. Marshals – summoned to enforce civil rights – were labeled “sadists and  perverts.” Klan propaganda tied together “Communists, homosexuals, and Jews, fornicators and liberals and angry blacks – infidels all.”

One Klan photo showed a black man touching the crotch of the white man sitting next to him, attempting to make the link between racial equality and homosexuality explicit.

Civil rights leaders had predicted the attack. In selecting the Freedom Riders, James Farmer had conducted interviews to weed out “Communists, homosexuals, [and] drug addicts.” “We had to screen them very carefully because we knew that if they found anything to throw at us, they would throw it,” he explained.

This reflected society’s notion that homosexuals were “undesirables.” It also placed civil rights leaders in the position of seeking rights for one disenfranchised group while simultaneously seeking to avoid association with another disenfranchised group. Mississippians opposed to integration harassed several civil rights leaders for their homosexuality. Bill Higgs was a prominent gay Mississippi civil rights lawyer. He was targeted for his activism, convicted in absentia of delinquency of a minor, and threatened with “unlimited  jailings” should he ever return to Mississippi.

He never did.

Reeves also discusses the case of Bayard Rustin, the openly gay African American civil rights activist who organized the 1963 March on Washington at which Martin Luther King, Jr. delivered his famous “I Have a Dream” speech.

The most interesting part of Rustin’s story, though – and the reason why he merits more discussion here – is that he was subjected to anti-gay discrimination by both white and black people, majority and minority alike. Congressman Adam Clayton Powell, a black Democrat, threatened to feed the media a false story that Rustin was having an affair with Martin Luther King, Jr., unless Dr. King canceled a protest at the Democratic National Convention.

Other persons within the civil rights movement were similarly “put off by Rustin’s homosexuality.” Roy Wilkins, an NAACP executive, “was particularly nasty to Bayard Rustin – very hostile,” in part because he “was very nervous about Bayard’s homosexuality.” Dr. King eventually had Rustin resign “because of persistent criticism of Rustin’s homosexuality and Communist ties and because of Congressman Adam Clayton Powell’s threat.”

Rustin reemerged years later as one of the principal organizers of the March on Washington for Jobs and Freedom. A. Philip Randolph and Dr. King wanted Rustin as the march’s chief organizer, but Wilkins pushed back “because [Rustin] was gay . . . something which in particular would offend J. Edgar Hoover.” The group ultimately “decided Randolph would be in charge of the march, that Rustin would be the principal organizer, but that he would stay somewhat in the background.”

The concern about offending Hoover was prescient, as the FBI Director and other top officials soon moved to use Rustin’s homosexuality against him. In August 1963, FBI Director J. Edgar Hoover, Attorney General Robert F. Kennedy, and President John F. Kennedy urgently reviewed the transcript of a FBI wiretap in which Dr. King acknowledged Rustin’s homosexuality. A day later, Senator Strom Thurmond of South Carolina “rose in the Senate to denounce Rustin for sexual perversion, vagrancy, and lewdness.” FBI “headquarters badgered the field offices for new details” of Rustin’s sex life for months.

As Reeves makes clear, this kind of persecution was not only reserved for civil rights activists.

Rustin’s story speaks to the long tradition of Americans from all walks of life uniting to discriminate against homosexuals. It did not matter if one was liberal or conservative, segregationist or civil rights leader, Democrat or Republican; homosexuals were “the other.” Being homosexual invited scrutiny and professional consequences.

These consequences befell quite a few Mississippians. Ted Russell, the conductor of the Jackson Symphony Orchestra, lost his job and his Belhaven College faculty position after he was caught in a gay sex sting by the Jackson Police Department. In the early 1980s, Congressman Jon Hinson drew scrutiny for frequenting an X-rated gay movie theater in Washington, D.C., and although he won reelection, he resigned when he returned to Washington and was caught performing gay sex acts in a Capitol Hill bathroom. As early as 1950, the State’s flagship institution of higher learning, the University of Mississippi, “forced three homosexual students and one faculty member to leave the university” because it “did not tolerate homosexuality.” Lesbian instructors at Mississippi University for Women were pushed out of their jobs, while students at other Mississippi public universities were expelled for their homosexuality. A 1979 article on gay Jacksonians said “most” remained closeted because “they fear losing their jobs, friends and families.”

Reeves discusses the anti-gay actions of the Mississippi State Sovereignty Commission, which was created in 1956 to maintain racial segregation by any means necessary.

Sovereignty Commission “[i]nvestigators and local officials also targeted local blacks and outsiders involved in civil rights activities as being sexually deviant.” They singled out Rust College, a private historically black institution, on reports that instructors there were “homosexuals and racial agitators.”

Those with power took smaller, yet meaningful, actions to discourage gay organizing and association in Mississippi. The State refused to let gay rights organizations incorporate as nonprofits. The newspaper at Mississippi State University – student-led, with an elected editor – refused to print a gay organization’s advertisement notifying gay and lesbian students of an off-campus “Gay Center” offering “counseling, legal aid and a library of homosexual literature. An advisor to the U.S. Commission on Civil Rights concluded that the Jackson Police Department took “a series . . . of maneuvers to harass members of Jackson’s gay community.” “As of 1985 not a single university campus in Mississippi recognized a lesbian and gay student group.”

Reeves’s ruling also makes clear that official discrimination is not only in the state’s past.

In 1990, the Mississippi Supreme Court affirmed a trial judge who declared that a mother, who was a lesbian, could not visit her children in the presence of her female partner. In Weigand v. Houghton, the Mississippi Supreme Court affirmed a trial judge who refused residential custody to a father in large part because he was in a long-term relationship with another man. A dissent complained that the father’s sexuality had impaired the court’s judgment, since the child would now have to live with “the unemployed stepfather [who] is a convicted felon, drinker, drug-taker, adulterer, wife-beater, and child-threatener, and . . . the mother [who] has been transitory, works two jobs, and has limited time with the child.”

 In 2002, one of Mississippi’s justice court judges, frustrated with advances in gay rights in California, Vermont, and Hawaii, “opined that homosexuals belong in mental institutions.” Although he was reprimanded and fined by the Mississippi Commission on Judicial Performance, the Mississippi Supreme Court vacated the sanctions. It was more important for gay citizens to know that their judge was biased and seek his recusal than to “forc[e] judges to conceal their prejudice against gays and lesbians,” it wrote. The “Commission urges us to ‘calm the waters’ when, as the guardians of this state’s judicial system, we should be helping our citizens to spot the crocodiles.”

Reeves details a number of recent complaints and lawsuits challenging discriminatory treatment by state and local governments as well as legal inequities such as the fact that Mississippi law permits a single person to adopt a child but not gay or lesbian couples.

This kind of restriction was once supported by pseudoscience. We now recognize that it actually “harms the children, by telling them they don’t have two parents, like other children, and harms the parent who is not the adoptive parent by depriving him or her of the legal status of a parent.”

Reeves concludes the historical section of the ruling this way:

“The past is never dead. It’s not even past.” That is as true here as anywhere else. Seven centuries of strong objections to homosexual conduct have resulted in a constellation of State laws that treat gay and lesbian Mississippians as lesser, “other” people. Thus, it is easy to conclude that they have suffered through a long and unfortunate history of discrimination.

PFAW Foundation

Mississippi Judge Striking Down Marriage Ban Explains the Role of Courts

Among the many things to be thankful for this Thanksgiving are our fundamental constitutional rights and the principled federal judges who make sure those rights are vindicated, even when popular majorities disagree. Judge Carlton Reeves reminded us of that yesterday in his ruling striking down Mississippi's ban that prevented gays and lesbians from marrying.

Judge Reeves has written a thorough opinion that respectfully considers all the arguments put forth by opponents of marriage equality and carefully explains why the marriage ban, popular as it may be in Mississippi, violates both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. At 72 pages, it is well worth reading if you want to see our Constitution and our federal court system at their best.

Among the many highlights is Judge Reeves's response to those who say the issue of marriage equality should be resolved in the political branches rather than through the courts. This is the position recently taken by the Sixth Circuit in a highly flawed opinion written by Judge Jeffrey Sutton. Judge Reeves explains:

In upholding four states' same-sex marriage bans, [the Sixth Circuit] expressed optimism that voters would change their minds on same-sex marriage, and argued that the courts should give them that opportunity. As that court wrote, "from the claimants' perspective, we have an eleven-year record marked by nearly as many successes as defeats and a widely held assumption that the future holds more promise than the past—if the federal courts will allow that future to take hold." (emphasis added).

The undersigned sees the judicial role differently. The courts do not wait out the political process when constitutional rights are being violated, especially when the political process caused the constitutional violations in the first place. The framers did not set up Article III to yield to "the superior force of an interested and overbearing majority." The Federalist No. 10. By honoring its obligation conferred by Article III [of the Constitution], the court does not diminish the political process. Rather, the court holds fast to the fundamental belief that constitutional principles that safeguard liberty and guarantee equality are not subject to the ballot. [footnote and internal citations removed]

Judge Reeves also provides an important historical context and the role courts have played in fulfilling the promises of our Constitution:

Under the Fourteenth Amendment, a state may not "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. Although this text has not changed in nearly 150 years, our understanding of it has changed dramatically. Before turning to today's issue, then, it is worth considering some of those historical changes.

He then cites Supreme Court cases interpreting the Fourteenth Amendment to allow racial segregation, the blanket exclusion of women from practicing law, the criminalization of consensual sex between two men in their own home:

These are just a few examples. There are others. Even an abbreviated history shows that millions of Americans were once deemed ineligible for full Fourteenth Amendment protection. But we now take for granted that racial discrimination is wrong, that women cannot be excluded from the professions, and that gay and lesbian citizens are entitled to the same privacy in their sex lives that heterosexual citizens enjoy. We changed. These issues have faded into the background of everyday life.

The judiciary plays a unique role in this process. The above cases were not put to a vote of the American people. The votes had already been counted; the legislatures had already acted. Most voters thought nothing wrong with the status quo, unconstitutional as it may be.

This was always a risk of our representative democracy. James Madison wrote that "measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority." The Federalist No. 10. He and his colleagues "knew times can blind us to certain truths." Lawrence [v. Texas], 539 U.S. at 579. Mistakes would be made.

In their wisdom, though, they created a co-equal branch of government where aggrieved persons could try to show "that the laws once thought necessary and proper in fact serve only to oppress." Id. The judiciary has been charged with hearing these claims for more than two centuries. The will of the majority is usually affirmed. Every now and then, however, the majority has done an injustice to a person's rights, and the case must be resolved in his or her favor.

Judge Reeves, who was nominated to the bench by President Obama, explains well the importance of our nation's federal courts, while also demonstrating how important it is who serves on those courts.

PFAW Foundation

Whose State of Emergency?

This post was original published at The Huffington Post.

On the evening of the announcement that a grand jury decided Darren Wilson, the Missouri police officer who killed unarmed teenager Michael Brown, would not face charges, two storms were capturing the attention of the American people. One was the strong winds that created havoc from the South to the North, and the second was the manifestation of pain through protest over the grand jury's decision.

Last week, Missouri Governor Jay Nixon declared a state of emergency in Ferguson. States of emergency are generally declared in response to natural disasters or civil upheaval. Last week the Ferguson activist group Hands Up United tweeted, in response to Gov. Nixon's announcement, "Our country is in a state of emergency. And not becuz of protestors."

As other advocates have pointed out, we were already in a state of emergency.

Since that fateful day in August when Brown was killed, we have heard analysis from commentators on television, radio, and social media, in barber and beauty shops, and on street corners, about what will happen in Ferguson after the immediate call for criminal justice. We saw a military-style police crackdown on peaceful demonstrators, another sterile review of our broken policing system, and new and veteran activists protesting, organizing, registering people to vote, and bearing witness to a grieving community's call yet again for change in cities across America where silence is not an option in the wake of the death of another unarmed African American male.

A "state of emergency," we are reminded, was declared when Katrina hit the vulnerable walls of New Orleans and flooded neighborhoods. But we were also in a "state of emergency" after the verdict was rendered in the shooting death of Jordan Davis. A "state of emergency" was evident in the November 4 midterm elections when I saw "democracy only for some" in the ten states where I traveled. Our broken immigration system created a "state of emergency" for families that have been separated, threatened with deportation, treated as collateral damage in political debates.

USA Today recently reported that on average there were 96 cases of a white police officer killing a black person each year between 2006 and 2012, based on justifiable homicides reported to the FBI by local police. Mother Jones notes that according to the Department of Justice's 2008 Police Public Contact Survey, "[o]f those who felt that police had used or threatened them with force that year, about 74 percent felt those actions were excessive. In another DOJ survey of police behavior during traffic and street stops in 2011, blacks and Hispanics were less likely than whites to believe that the reason for the stop was legitimate."

That is a state of emergency.

The 1,700 faith leaders in the alliance of progressive African American ministers I lead, frequently primary sources of support in tragedies like this, are too often ministering to mothers and fathers who find themselves suddenly without a child who was alive and well when the day began. These leaders have been fervently preaching, teaching, counseling, meeting with chiefs of police and other city officials, communities and families about the dual system of justice that is still prevalent in the 21st century. While some live in or near Ferguson and others traveled to Ferguson to show support, more just had to walk out their doors, down their streets, to their corners to see the results of delayed justice.

We were already in a state of emergency because of the gun violence in communities across the country. But today, when African American youth are so often shot and killed, such as the 12-year-old in Cleveland, Ohio this past weekend, by those who are charged to protect our communities, the climate that attempts to justify the daily reality of racial profiling and African Americans being nearly "four times as likely to experience the use of force" in police encounters, can no longer be tolerated. Yes, we stay in a state of emergency when African Americans receive longer sentences than Caucasians for the same crimes and when the troubling results of new polling show the racial divide on the shooting death of Michael Brown is as wide as the Mississippi River is long.

The decision announced on Monday evening is certainly not the final chapter, but sadly is another chapter in the experience of living non-white in America. Michael Brown Sr. says he wants his son's death to spark "incredible change, positive change," no matter the grand jury's decision. Continuing dialogue and movement on police violence and the relationship between law enforcement and the African American community must happen daily in living rooms, classrooms, places of worship, and work places around the country, for as feminist scholar bell hooks wrote, "[S]ilences in the face of racist assault are acts of complicity." She is right. Today all Americans are being called to speak out against the ongoing violation of the most fundamental right there is - the recognition of being a part of "We the People."

Dr. King said in 1963, "The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy." We are in a state of emergency, a time of challenge and controversy, but not because of the protestors. That state of emergency will continue until we stand, become uncomfortable, and demand a justice system that addresses the manifestation of pain in protest, the further chipping away of respect, and the real state of emergency our country faces.

PFAW Foundation

The Sixth Circuit's Flawed Marriage Ruling

A divided three-judge panel of the Sixth Circuit Court of Appeals this afternoon upheld the marriage bans of Michigan, Ohio, Tennessee, and Kentucky. The majority opinion was written by Judge Jeffrey Sutton and joined by Deborah Cook, both put on the bench by George W. Bush. Clinton nominee Martha Craig Daughtrey dissented.

Among the many flaws in the majority's reasoning was the conclusion that Equal Protection violations are best resolved in the political sphere:

When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.

But this is a case where a discreet group, long a target of discrimination, found itself once again victimized by the majority acting through the democratic process. The Equal Protection Clause exists to protect vulnerable minorities from being victimized by hostile majorities using the "customary political process."

As the dissent states:

The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state's constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment. Instead, the majority sets up a false premise—that the question before us is "who should decide?"—and leads us through a largely irrelevant discourse on democracy and federalism.

Another flaw was Sutton's dismissal of the possibility that there was animus in the wave of 2004 and 2006 ballot initiatives in which voters put bans into their state constitutions. He wrote that if the constitutional bans had been unusual, that might trigger suspicion of animus. But he found nothing unusual here:

Neither was the decision to place the definition of marriage in a State's constitution unusual, nor did it otherwise convey the kind of malice or unthinking prejudice the Constitution prohibits. Nineteen States did the same thing during that period [between 2004 and 2006]. And if there was one concern animating the initiatives, it was the fear that the courts would seize control over an issue that people of good faith care deeply about. [emphasis added, internal citation removed]

If that had been the motivation, the constitutional amendments would not have banned gays and lesbians from marrying, but would have simply said that the legislature had the authority to limit marriage to opposite-sex couples. That would have removed the court's authority in the matter. In fact, that is exactly how Hawaii amended its constitution in the 1990s (which is how it recently was able to adopt marriage equality without re-amending its constitution).

But the Hawaii model of inequality was not nearly extreme enough for the advocates of the bans devised and aggressively pushed in 2004 and 2006. They went far, far beyond that. They tied the legislatures' hands and ensured that gays and lesbians would forever be prevented from achieving marriage equality through democratic means.

The ordinary voters who voted for the bans surely had numerous motivations. But it seems like magical thinking on Judge Sutton's part to assume that there was no animus motivating the architects and enthusiastic proponents of such an extreme and permanent exclusion of a targeted minority.

The ones fighting most forcefully for the bans a decade ago were the same organizations and people who had spent years opposing every advance in LGBT equality, whether those advances came from the courts, from legislatures, in classrooms, or in popular culture. That history is vital to understanding their motivations ten years ago, just as it is vital in addressing their current claims that LGBT equality violates their religious liberty.

PFAW Foundation

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

PFAW & Allies Send Open Letter to RNC Chair: “Where Does the GOP Stand on Gay Bashing?”

In anticipation of this weekend’s annual Values Voter Summit, a multi-day event where GOP elected officials and presidential hopefuls rub elbows with Religious Right leaders, People For the American Way President Michael Keegan joined the leaders of the Southern Poverty Law Center and five other civil rights and LGBT organizations in an open letter calling on Republican National Committee chair Reince Priebus to ask members of his party to disassociate themselves from the summit.

The letter, printed in the Washington Post and The Hill this morning, highlights the repeated and vicious demonization of LGBT people by the groups responsible for the summit, including its host, the Family Research Council:

Its president, Tony Perkins, has repeatedly claimed that pedophilia is a “homosexual problem.” He has called the “It Gets Better” campaign — designed to give LGBT students hope for a better tomorrow — “disgusting” and a “concerted effort” to “recruit” children into the gay “lifestyle.”

… Bryan Fischer of the American Family Association, a summit sponsor, has said the U.S. needs to “be more like Russia,” which enacted a law criminalizing the distribution of LGBT “propaganda.” He also has said, “Homosexuality gave us Adolph Hitler, and homosexuals in the military gave us the Brown Shirts, the Nazi war machine, and six million dead Jews.”

By participating in the summit, Republican Party leaders risk legitimizing this kind of virulent extremism. Given that reality, the letter asks a simple question: where does the GOP stand on gay bashing? Reince Priebus himself has said, “People in this country, no matter straight or gay, deserve dignity and respect.” But will he walk the talk and, as the letter asks, “tell the members of your party to shun groups that demean other people and deny them dignity?”

You can read the full letter here.
 

PFAW

GOP Blocks Paycheck Fairness Act a Fourth Time

Republican senators again filibustered the Paycheck Fairness Act yesterday, an act that would provide women with additional tools to identify and fight back against pay discrimination. This is the fourth time that Republicans have blocked this bill, despite the persistence of unequal pay for women and men doing the same work.

It’s been over 50 years since the signing of the Equal Pay Act, yet, this unconscionable practice of paying women employees less than men for doing the same job continues to this day.

In Congress, though, Republicans derided the measure as a “show vote” staged by Democrats in an election year. Sen. Mitch McConnell even claimed this bill “threatens to hurt the very people that it claims to help.” But for women working full-time and earning an average of 77 cents for every dollar men earn, this bill would give them the tools to fight back against the pay discrimination that keeps them earning less.

Women are increasingly serving as the primary breadwinners for their households, which means the discrepancy in pay harms not only women’s lives, but also their families. The Paycheck Fairness Act is the best way to start fixing that injustice. Republican senators should stop the unnecessary filibusters so that the Senate can pass this bill and move our country towards equal pay for equal work.

PFAW

7th Circuit Says Arguments Against Marriage Equality "Cannot Be Taken Seriously"

Today's unanimous panel ruling by the Seventh Circuit striking down Wisconsin and Indiana's marriage bans is a well-written, carefully reasoned take-down of some of the ludicrous arguments that equality opponents have been making to defend their policy of discrimination. It was written by Richard Posner, a noted conservative put on the bench by Ronald Reagan, and joined by judges nominated by Bill Clinton and Barack Obama. Ruling on the basis of the Equal Protection Clause of the Fourteenth Amendment, the court summarizes its opinion nicely:

Our pair of cases is rich in detail but ultimately straightforward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don't need marriage because same-sex couples can't produce children, intended or unintended—is so full of holes that it cannot be taken seriously.

Judge Posner writes:

Because homosexuality is not a voluntary condition and homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world, the disparagement of their sexual orientation, implicit in the denial of marriage rights to same-sex couples, is a source of continuing pain to the homosexual community.

He carefully considers the argument put forward by the states that marriage is restricted to one man and one woman to benefit children. Among the many ways this argument fails to hold water:

But then how to explain Indiana's decision to carve an exception to its prohibition against marriage of close relatives for first cousins 65 or older—a population guaranteed to be infertile because women can't conceive at that age? [Wisconsin also bans first cousins from marrying unless the woman is over 55 or where the couple presents a doctor's affidavit saying one of them is permanently infertile.] If the state's only interest in allowing marriage is to protect children, why has it gone out of its way to permit marriage of first cousins only after they are provably infertile? ... Elderly first cousins are permitted to marry because they can't produce children; homosexuals are forbidden to marry because they can't produce children. The state's argument that a marriage of first cousins who are past child-bearing age provides a "model [of] family life for younger, potentially procreative men and women" is impossible to take seriously.

With regard to the commonly heard refrain, echoed by attorneys for Indiana and Wisconsin, that courts should respect democratically-enacted bans on marriage by same-sex couples, Judge Posner points out what should be obvious to anyone who claims fealty to the United States Constitution:

Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.

Courts exist to enforce the Constitution against those who would subvert it. And that drives the right crazy.

PFAW Foundation