Pew Report: With GOP Presidents, We Get Fewer Judges of Color

The Pew Research Center has released a new report (“More minority federal judges have been appointed under Democratic than Republican presidents”) examining the presence of people of color serving as judges in our nation’s federal judiciary.  Their study’s conclusion, apparent from the title, quantifies what many Americans probably already suspected: Democratic presidents have done more to increase judicial diversity than have GOP presidents.

Pew’s report shows that:

The number of minorities named to the federal courts has increased faster under Democratic presidents than Republican presidents. From 1945 to today – a period in which Republicans and Democrats have each occupied the White House for a total of 36 years – Democratic presidents have appointed three times as many black judges as their Republican counterparts (162 vs. 49). Democrats have also named more Hispanic judges to the federal bench (73 vs. 51).

Pew’s analysis also indicates that President Obama has put more Asian Americans on the federal bench than all his predecessors combined:

Before 2009, Republicans had appointed 10 Asian judges, while Democrats appointed six. During Obama’s presidency the number of Asian federal judges greatly increased: About half (17) of the 33 Asian American judges to ever serve on the federal bench were appointed by Obama.

As we have written before in discussing why it is important to have a judiciary that looks like America:

For much of our nation's history, judges were uniformly white men. When women argued for equality under the law, they were repudiated with sexist arguments that only men could have come up with. African Americans were told that separate can be equal. Native Americans were told that they never really owned the land they had been on for centuries, but were only in temporary possession of it until Europeans arrived.

A judiciary that looks nothing like America is far less likely to understand how the law affects other people, a misunderstanding that has often led to great injustice. As Republicans exacerbate judicial emergencies, their obstruction is preventing us from having a judiciary that looks more like America.

We see this at all levels, including at the Supreme Court.  Justice Sotomayor’s dissent in the Schuette affirmative action case and her condemnation of a prosecutor’s attempt to substitute racial stereotype for evidence are great examples.  At the Obergefell oral arguments, when Justice Scalia suggested that a ruling for same-sex couples could force anti-gay clergy to conduct marriages against their religious beliefs, Justice Kagan had to inform him what Jewish Americans already know: that many rabbis refuse to conduct marriages between Jews and non-Jews without raising any constitutional problem.

Diversity brings people with more varied life experiences to our courtrooms, and that helps judges make better decisions.  And when Senate Republicans engage in record obstruction of President Obama’s judicial nominees, the result is a less diverse federal bench.

PFAW

GOP's Record-Breaking SCOTUS Obstruction

A lot can be accomplished in 125 days.  It took less time than that for the Allies to liberate Paris after D-Day.  And Franklin Roosevelt’s first 100 days are still remembered for the incredible amount that was accomplished in such a short time.

So surely the United States Senate could manage to hold a hearing within 125 days for an unquestionably qualified, uncontroversial Supreme Court nominee with strong support from across the ideological spectrum.  But the Republicans who control the Senate have continued to simply pretend that President Obama hasn’t nominated anyone to fill the vacancy.  And at Day 125 of the nomination, the GOP has set a shameful record:  D.C. Circuit Chief Judge Merrick Garland is now the longest pending Supreme Court nominee in American history, and he still has not been allowed to have a committee hearing.

Of course, Senate Republicans can act quickly when they want to.  For instance, it was only a few hours after Justice Antonin Scalia’s untimely death that Senate Majority Leader Mitch McConnell announced that, contrary to all precedent, the Senate would refuse to consider anyone nominated by President Obama to fill the vacancy, no matter who it might be.  This was at a time when there was still nearly a full year left in Obama’s presidency, so McConnell’s lightning-fast decision for obstruction and politicization guaranteed that the Court vacancy would remain open not only for the rest of that Supreme Court term, but also for most or even all of the following term as well.

Unfortunately, neither McConnell nor his fellow GOP senators seem to care about the damage an extended vacancy can do to a Court characterized by important and headline-grabbing 5-4 decisions.  These are analyzed in Material Harm to Our System of Justice: The Consequences of an Eight-Member Supreme Court, a report by our affiliate People For the American Way Foundation and the Constitutional Accountability Center.  Senate Republicans are unmoved that their unprecedented obstruction is politicizing what is supposed to be an apolitical institution.  They are not bothered that their unprecedented obstruction is harming their constituents and people and businesses across America.

But if they don’t care about harming the Constitution, the American judicial system, and their own constituents, maybe these GOP senators will care if it hurts them.  They should be concerned about the finding in a new polling memo out today from the Constitutional Responsibility Project and Hart Research.  The memo shows that:

  • As the GOP’s obstruction has dragged on, even more voters want a hearing than on the day he was nominated.  National surveys have all registered at least 60 percent in favor, with political independents and voters in battleground states with vulnerable Republican senators demonstrating comparable levels of support.
  • Nearly two-thirds of voters consider it to be “wrong” that Senate Republicans are refusing to hold hearings.
  • In battleground states, support for Garland’s nomination grows as voters learn more about his background and extensive qualifications.
  • At least seven out of ten voters think Republicans are playing politics with the Supreme Court, and a supermajority is convinced that the Senate is failing to fulfill its constitutional duty. No GOP framing to justify their obstruction is considered nearly as compelling.
  • In key battleground states, 40 percent or more of voters say that they are less likely to support incumbent senators because they are obstructing Chief Judge Garland’s nomination.  At the same time, most voters don’t seem to know what their own senator’s position is.  So when they find out, vulnerable GOP senators could find themselves even more vulnerable.

So on this record-breaking 125th day of the GOP’s refusal to do its job, let us hope that Senate Republicans will move to hold a hearing and vote on Judge Garland as soon as they return in September, even if it’s only to save their own skin.

PFAW

At Committee Meeting, PFAW & Allies Urge Senators to #DoYourJob

Thursday, July 14, marked the 120th day since Chief Judge Merrick Garland was nominated to the Supreme Court. July 14 was also the Senate Judiciary Committee’s final markup before the August recess. In order to highlight Republican senators’ irresponsible obstruction on  judicial vacancies, People For the American Way staff members attended and stood in solidarity with activists from Planned Parenthood Federation of America, the Leadership Conference on Civil and Human Rights, and Americans United for Change at the markup.

We wore buttons that read “#DoYourJob” and some advocates silently held signs when the meeting concluded. Our presence put additional pressure on Chairman Sen. Chuck Grassley and his Republican colleagues on the Senate Judiciary Committee to give Garland fair consideration and to fill the growing number of other judicial vacancies.

On the agenda for the markup meeting were four judicial nominees: Jennifer Puhl, Don Coggins, David Nye, and Kathleen Sweet. Puhl, Coggins, and Nye were unanimously approved by the committee on a voice vote, but they join a long list of nearly 20 other nominees who are still waiting for consideration from the full Senate. They are unlikely to receive a vote before the fall.

During the committee proceedings, ranking member Senator Patrick Leahy (D-VT) gave voice to our frustrations, and the frustrations of so many Americans, by directly addressing the rising number of judicial vacancies across the United States and the failure of Republican senators to fulfill their job requirements by adequately processing judicial nominees:

“The sharply rising number of judicial vacancies across the country is the direct consequence of Republican leadership neglecting the Senate’s duty to ensure the federal judiciary can function. When Senate Republicans took over the majority last year, there were 43 judicial vacancies, 12 of which were emergency vacancies. Because of the Republicans’ refusal to do their jobs, vacancies have nearly doubled to 83, and emergency vacancies have nearly tripled to 30.”

Astoundingly, at the last markup session before the congressional recess, and 120 days since Merrick Garland’s nomination, Sen. Chuck Grassley did not even speak about the most pressing judicial vacancy: the open ninth seat on the Supreme Court. Sen. Leahy, however, did, saying:

"Republicans are failing our justice system and the American people by continuing their unprecedented blockade of Chief Justice Merrick Garland’s nomination for the Supreme Court.”

We agree with Sen. Leahy and so many Americans. The American people deserve a fully-functioning judicial system, including a Supreme Court with nine justices. Republican Senators’ refusal to adequately process judicial nominees is disgraceful. Tell Sen. Grassley to stop playing politics with our justice system, and tell GOP senators to do their jobs. 

PFAW

Senate GOP Keeping Court Vacancies Open So Trump Can Transform America’s Judiciary

This piece originally appeared on the Huffington Post.

The Constitution sets up an independent judiciary as the third branch of government, intended to protect people’s rights and to serve as a check on the power of the other two branches. Our nation’s charter tasks the president and the Senate with the job of selecting and vetting the people who would serve on those courts.  President Obama has been doing his duty by nominating qualified women and men to serve as judges at all levels of the judiciary, including the Supreme Court.

But the GOP-controlled Senate is not living up to its constitutional responsibilities. While this has always been harmful to America, it is even more so with Donald Trump the presumed presidential nominee of his party.

Mitch McConnell and his party have slow-walked or outright blocked so many nominees that the number of circuit and district court vacancies has risen from 40 when they took over the Senate to 80 today. (There are also several vacancies for the Court of International Trade and the U.S. Court of Federal Claims.) In that same time, the number of vacancies formally designated as judicial emergencies has skyrocketed from 12 to 29. The Senate has not been allowed to vote on nominees who were thoroughly vetted and approved months ago by the Judiciary Committee with strong bipartisan support.

Yesterday, Sen. Tammy Baldwin of Wisconsin went to the floor to draw attention to the problem. She noted that while the Senate GOP’s blockade of Supreme Court nominee Merrick Garland has been in the headlines, that has not been the case with the obstruction of lower court nominees.

She focused particularly on Seventh Circuit nominee Donald Schott, who not only has Democrat Baldwin’s support, but also that of his other home-state senator, Republican Ron Johnson.  Schott would fill the nation’s longest circuit court vacancy, which has been open for well over six years.  Since the Supreme Court takes so few cases, the Seventh Circuit is usually the last word on the meaning of the Constitution and federal laws for millions of people in Wisconsin, Illinois, and Indiana, and every day that goes by with that vacancy open hurts everyone in those states.  Schott earned strong bipartisan support from the Judiciary Committee, which advanced his nomination to the full Senate four weeks ago.  Baldwin noted that Schott also has the support of a bipartisan group of former Wisconsin Bar presidents.  Saying that “the people of Wisconsin and our neighbors in Illinois and Indiana deserve a fully functioning appeals court,” Baldwin urged McConnell to finally allow votes on Schott and on all of the judicial nominees who have cleared the Judiciary Committee.  Many of them have been waiting for more than half a year for a floor vote, with several having been approved by the Judiciary Committee last year.

But Republicans are fighting to keep vacancies open for as long as possible so that they will be filled by a President Donald Trump.

Donald Trump, who wants to make it easier for the government to punish media sources whose reporting he disagrees with.

Donald Trump, who has said that Latinos cannot serve effectively as unbiased judges.

Donald Trump, who would ban certain people from entering the country based on their religion.

Donald Trump, who has demeaned and humiliated women at every opportunity.

Donald Trump, who has used hate groups’ blatantly anti-Semitic imagery in his campaign.

Donald Trump, who has said he is considering firing all Muslim TSA agents.

With serious discussion among scholars, political figures, and Americans across the political spectrum on whether Trump’s extreme views amount to fascism, we need a strong, effective, and independent federal judiciary more than ever. Yet Senate Republicans are pulling out the stops to allow Donald Trump to move quickly to dramatically transform our judiciary from the Supreme Court on down.

The Senate GOP is abdicating their constitutional and moral responsibility to the American people and to our democracy.

PFAW

PFAW Hosts Member Telebriefing on the SCOTUS Term

As the Supreme Court session wrapped up for the term, PFAW hosted a member telebriefing on Thursday to analyze the impact of the term's decisions and to look towards the future of the Court overall. The latest term was atypical in a number of ways, from the death of Justice Antonin Scalia to Republican senators’ unprecedented and unconstitutional refusal to consider Judge Merrick Garland’s nomination, leaving the Court with only eight justices to decide cases. 

On the call were PFAW’s Executive Vice President Marge Baker, Communications Director Drew Courtney, Senior Legislative Counsel Paul Gordon, and Senior Fellow Elliot Mincberg, who discussed the Republicans' blockade of the Garland nomination, the impact of the court being forced to operate with only eight justices for a significant portion of the term, and the future of the Supreme Court in coming years, with three of the current justices soon to be over the age of 80. They also fielded questions from members around the country, unpacking the outcomes of cases such as Fisher v. University of Texas, Whole Women’s Health v. Hellerstedt, U.S. v. Texas and others.

Mincberg said that “this term turned out very differently” than many expected because of two primary reasons: Justice Scalia’s passing, and Justice Kennedy joining the moderate justices in decisions on cases such as Fisher.  Baker stressed that “we need a full Court” in order for the Supreme Court to work effectively and encouraged members to speak out about the issue. She also emphasized that “it does make a difference to vote,” and that Americans need to have their voices heard by their representatives about the Court.    

You can listen to the full telebriefing here:

 

PFAW

PFAW Hosts Member Telebriefing on the SCOTUS Term

As the Supreme Court session wrapped up for the term, PFAW hosted a member telebriefing on Thursday to analyze the impact of the term's decisions and to look towards the future of the Court overall. The latest term was atypical in a number of ways, from the death of Justice Antonin Scalia to Republican senators’ unprecedented and unconstitutional refusal to consider Judge Merrick Garland’s nomination, leaving the Court with only eight justices to decide cases. 

On the call were PFAW’s Executive Vice President Marge Baker, Communications Director Drew Courtney, Senior Legislative Counsel Paul Gordon, and Senior Fellow Elliot Mincberg, who discussed the Republicans' blockade of the Garland nomination, the impact of the court being forced to operate with only eight justices for a significant portion of the term, and the future of the Supreme Court in coming years, with three of the current justices soon to be over the age of 80. They also fielded questions from members around the country, unpacking the outcomes of cases such as Fisher v. University of Texas, Whole Women’s Health v. Hellerstedt, U.S. v. Texas and others.

Mincberg said that “this term turned out very differently” than many expected because of two primary reasons: Justice Scalia’s passing, and Justice Kennedy joining the moderate justices in decisions on cases such as Fisher.  Baker stressed that “we need a full Court” in order for the Supreme Court to work effectively and encouraged members to speak out about the issue. She also emphasized that “it does make a difference to vote,” and that Americans need to have their voices heard by their representatives about the Court.    

You can listen to the full telebriefing here:

PFAW

PFAW Hosts Member Telebriefing on the SCOTUS Term

As the Supreme Court session wrapped up for the term, PFAW hosted a member telebriefing on Thursday to analyze the impact of the term's decisions and to look towards the future of the Court overall. The latest term was atypical in a number of ways, from the death of Justice Antonin Scalia to Republican senators’ unprecedented and unconstitutional refusal to consider Judge Merrick Garland’s nomination, leaving the Court with only eight justices to decide cases. 

On the call were PFAW’s Executive Vice President Marge Baker, Communications Director Drew Courtney, Senior Legislative Counsel Paul Gordon, and Senior Fellow Elliot Mincberg, who discussed the Republicans' blockade of the Garland nomination, the impact of the court being forced to operate with only eight justices for a significant portion of the term, and the future of the Supreme Court in coming years, with three of the current justices soon to be over the age of 80. They also fielded questions from members around the country, unpacking the outcomes of cases such as Fisher v. University of Texas, Whole Women’s Health v. Hellerstedt, U.S. v. Texas and others.

Mincberg said that “this term turned out very differently” than many expected because of two primary reasons: Justice Scalia’s passing, and Justice Kennedy joining the moderate justices in decisions on cases such as Fisher.  Baker stressed that “we need a full Court” in order for the Supreme Court to work effectively and encouraged members to speak out about the issue. She also emphasized that “it does make a difference to vote,” and that Americans need to have their voices heard by their representatives about the Court.    

You can listen to the full telebriefing here:

PFAW

June Shows Why November is the Most Important Month for the Supreme Court and our Rights

This piece originally appeared in the Huffington Post.

Before it adjourned for the summer in late June, the Supreme Court issued a series of important decisions, or non-decisions, on affirmative action, immigration, abortion, and other subjects. As with the Court’s actions since last October, and particularly since the death of Justice Scalia in February, the most significant message sent by these developments is this: the elections this November will be absolutely critical to the future of the Court and to all our rights and liberties.

Start with immigration. The Court split 4-4 on the challenge brought by Texas and other states to the president’s executive actions that would have kept families together by shielding undocumented parents of U.S. citizens from deportation and, in total, helped more than 4 million people across the country. The result of the tie vote is that the lower court decision stands without any opinion by the Court, so that a nationwide injunction by a single Texas federal judge against the president’s orders remains in effect. Although the Court doesn’t reveal who voted how in 4-4 splits, it’s almost certain that the four votes against the orders came from Chief Justice Roberts and Justices Alito and Thomas, joined by Justice Kennedy.

The Court was also split 4-4 in another important case in June, concerning whether Indian tribal courts can rule in civil cases (this one involving an assault) against non-tribe members who do business on Indian land. Altogether, the Court issued 4-4 non-decisions in five cases this term, the most in more than 30 years – a direct result of Republican Senators’ unprecedented blockade of the Garland nomination.

In several other important cases in June, Justice Kennedy sided with the Court’s moderates and produced positive decisions. This included a decision striking down an extremely restrictive Texas law that seriously and improperly limited women’s access to abortion by imposing draconian requirements on abortion clinics, as well as a decision approving a University of Texas plan to increase diversity on campus through affirmative action in admissions.

So does this mean that we have nothing to fear even if the Republican blockade of President Obama’s nomination of Judge Merrick Garland to the vacant seat on the Court succeeds and a President Trump places a right-wing conservative on the Court, because Kennedy is voting with the Court’s four moderates? Absolutely not!

First, the immigration non-decision itself shows that Kennedy – the author of Citizens United and part of the 5-4 majorities in Shelby County and Hobby Lobby and so many other cases damaging our democracy and our rights – unfortunately sides all too often with the Court’s far right wing. That was also shown earlier this term when an apparent 4-4 deadlock forced the Court to essentially punt in the Zubik case, leaving the important question of access to contraceptives and employer religious questions in limbo until the Court again has nine members. Whether than ninth seat is filled by President Obama (or by President Clinton if the Republican blockade continues) or by a President Trump is critical.

In addition, the age of the current justices makes clear that there will likely be additional vacancies during the first term of the next president. Three justices will be above 80 during that time, older than the average retirement age for justices. The president who fills these vacancies could easily tip the balance of the Court, not just on the issues the Court dealt with in June, but also on the environment, money and politics, LGBT rights, voting rights, access to justice, protection from government abuse, and many more. And the answer to whether we have a Senate that is willing to do its job and actually hold hearings and vote on nominees, unlike the current Republican Senate that has refused to even hold a hearing for Judge Garland after more than 100 days, will be crucial as well. Election Day 2016 truly is judgment day for the Court and for all of our rights and liberties.

PFAW Foundation

Powerful Sotomayor Dissent Shows Dangers of Supreme Court Ruling on Police Searches

Last Monday, the Supreme Court ruled 5-3 that evidence found by police officers even after they stop someone illegally can still be used if the searches happen after the officers learn of an unrelated outstanding arrest warrant. In a particularly powerful dissent, Justice Sonia Sotomayor explained the dangers of the majority ruling, particularly for people of color.

In the case, Utah v. Strieff, a police officer investigating possible narcotics activity in a house decided to stop Edward Strieff, who left the house, even though there were no reasonable grounds for the stop, which made it illegal. The officer then ran a check on Mr. Strieff, found a warrant for a minor traffic violation, and arrested him on that prior offense. The officer then searched him, found illegal drugs, and charged him accordingly. Even though the Utah Supreme Court found that the evidence should have been suppressed because of the illegal stop, the Supreme Court reversed because of the prior unrelated warrant.

“The court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights,” Sotomayor wrote. “This case allows the police to stop you on the street, demand your identification and check it for outstanding traffic warrants – even If you are doing nothing wrong.” As she continued, “if the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.” Justices Sotomayor and Kagan (who also dissented as did Justice Ginsburg) explained that this danger is far from hypothetical: federal and state databases show more than 7.8 million outstanding warrants, most of which are for minor traffic and other offenses. For example, in Ferguson, Missouri, which has a population of 21,000, there are 16,000 such outstanding warrants.

In a part of her dissent that she wrote only for herself, Sotomayor highlighted the problems that minorities face due to police stops. “For generations,” she explained, “black and brown parents have given their children ‘the talk’ – instructing them never to run down the street, always keep your hands where they can be seen, do not even think of talking back to a stranger – all out of fear of how an officer with a gun will react to them.” She added that people “routinely targeted by the police” are the “canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere,” She continued that “unlawful police stops corrode all our civil liberties and threaten all our lives.” Until the voices of these people “matter, too,” she concluded, “our justice system will continue to be anything but.”

The majority tried to minimize the impact of its ruling, stating that the stop was not a “flagrant” violation or part of a “dragnet” or “systematic or recurrent police misconduct,” but simply an “isolated instance” of an error by a police officer. Time and future cases will tell if Strieff will truly be an isolated case and if the Court will prevent abuse. Much will depend on the future votes of Justice Breyer, who joined the majority in the case, and of course the unfilled vacancy on the Court being held open by Republican obstructionism. But Sotomayor’s strong opinion was a remarkable and important statement that will hopefully help shape the future direction of the Court. As University of Chicago law professor Justin Driver put it, her dissent is “the strongest indication we have yet that the Black Lives Matter movement has made a difference at the Supreme Court--- at least with one justice.”

PFAW

Letter from Top Lawyers at Major Companies Urges Senate to Act on Merrick Garland Nomination

The stubborn refusal by Senate Republicans to consider the nomination of Judge Merrick Garland for the Supreme Court has caused the Supreme Court to deliberate with only 8, rather than its full complement of 9 justices. Senators have a constitutional responsibility to give fair consideration to the president’s nominee to fill a vacancy on the Supreme Court, yet they continue to neglect this responsibility as it has been 100 days since President Obama nominated Judge Garland to fill the seat left vacant by Justice Scalia’s death earlier this year. 

On Thursday, top lawyers from 44 United States companies, such as Nike and Qualcomm, released a letter calling on the Senate Judiciary Committee to move forward on this nomination, emphasizing that “[t]he business community has a great interest in avoiding the legal uncertainty that could result if the vacancy remains unfilled for an extended period of time.”

Bloomberg reports: “The signers of the letter include Michael Fricklas of Viacom; Hilary Krane of Nike; David Ellen of Cablevision Systems Corp.; Ivan Fong of 3M Co.; Donald J. Rosenberg of Qualcomm Inc.; Lori Schechter of McKesson Corp.; and Audrey Strauss of Alcoa Inc. The letter was spearheaded by Jonathan Schwartz, general counsel of Univision Communications Inc.”

PFAW