Will Nebraska's Senators Help Our Federal Courts?

Nebraska has a judicial vacancy that has been open for more than a year, leaving fewer judges available to handle the state’s relatively heavy caseload.  Fortunately, there is a fully vetted nominee with strong bipartisan support who could fill that slot today.  Unfortunately, Robert Rossiter is stuck in the middle of a bottleneck deliberately engineered by Senate Republicans.  The question is whether Senators Deb Fischer and Ben Sasse, both Republicans, will exercise their influence with party leadership to clear up that bottleneck for the benefit of their fellow Nebraskans and the rest of the country.

At Rossiter’s confirmation hearing, Sen. Fischer spoke about urgency of filling the vacancy as soon as possible:

[Nebraska has] the most per-judgeship weighted filings among the eight states that have only three authorized judgeships and a single federal district.  With a small bench and a full docket, it is important that this federal district court is operating at full capacity.  Despite this fact, however, the judgeship that Bob has been nominated for has been vacant for more than a year.  [T]his court must be provided with the necessary resources to work efficiently[.] … I urge my colleagues to support Bob Rossiter’s nomination quickly so that he can put his outstanding intellect, skill, and judgement to work for the American people.

However, Majority Leader Mitch McConnell has needlessly forced all of President Obama’s nominees to wait for floor votes far longer than necessary, creating a bottleneck that delays everyone.  He has allowed only ten judicial confirmation votes so far this year, an absurdly small number that has caused judicial vacancies and judicial emergencies to skyrocket since Republicans took over the Senate.

When McConnell finally schedules a vote on a circuit or district court nominee, it has been in the order that they came out of the Judiciary Committee (and, when nominees advance on the same day, the order that they are listed on the Senate Executive Calendar).  Rossiter has many nominees ahead of him in the list of circuit and district court nominees currently waiting for a floor vote:

  1. L. Felipe Restrepo (PA, Third Circuit) – July 9
  2. Travis McDonough (TN) – July 9
  3. Waverly Crenshaw (TN) – July 9
  4. Wilhelmina “Mimi” Wright (MN) – September 17
  5. John Vazquez (NJ) – September 17
  6. Paula Xinis (MD) – September 17
  7. Brian Martinotti (NJ) – October 29
  8. Robert Rossiter (NE) – October 29
  9. Edward Stanton (TN) – October 29
  10. Rebecca Goodgame Ebinger (IA) – November 5
  11. Leonard Strand (IA) – November 5
  12. Julien Neals (NJ) – November 5
  13. Gary Brown (NY) – November 5
  14. Mark Young (CA) – November 5

So if Sens. Fischer and Sasse want to get help to the overburdened Nebraska federal court as soon as possible, they need to do more than just press McConnell to schedule a confirmation vote for Rossiter.  If they want to help their constituents in Nebraska, they need to press McConnell to immediately allow votes on all those judicial nominees ahead of Rossiter.  Like all 14 pending nominees, they have been fully vetted and face no opposition.  In fact, all 14 could and should be confirmed immediately.

There is no good reason that Fischer and Sasse can’t make sure Rossiter is confirmed by the time they go home for Thanksgiving.


Justice Scalia's Ironic Comments About Democracy

Justice Antonin Scalia had some interesting things to say at a speech yesterday to Georgetown University law students.  The Washington Post reports on Scalia’s response to a question about minority rights:

But a question about whether courts have a responsibility to protect minorities that cannot win rights through the democratic process — the issue that animated the court’s landmark decision this year on same-sex marriage — brought a caustic response.

“You either believe in a democracy or you don’t,” Scalia said. “You talk about minorities — what minorities deserve protection?”

Religious minorities are protected by the First Amendment, Scalia said, and so are political minorities. But beyond that, he asked rhetorically, what empowers Supreme Court justices to expand the list.

“It’s up to me to decide deserving minorities?” Scalia asked. “What about pederasts? What about child abusers? So should I on the Supreme Court [say] this is a deserving minority. Nobody loves them.”

“No, if you believe in democracy, you should put it to the people,” he said.

No, Justice Scalia, if you believe in democracy governed by the Bill of Rights, people have rights that cannot be violated by majorities.  The majesty of the Equal Protection Clause is that it was intentionally written broadly, rather than being limited to certain people.  And it doesn’t have a clause saying “except for gay people.”

In addition, given Scalia’s caustic dissents in cases recognizing the constitutional equality and basic humanity of gay people, it is hardly a surprise that he answered a question implicating LGBT equality by dragging in pederasts and child abusers.  From a legal perspective, can he really not see any difference between protecting innocent but unpopular people who aren’t harming anyone, and policies designed to prevent adults from committing acts of violence against unwilling children?

Legal comparisons aside, why bring up child molesters at all?  For far too long, far right extremists have long peddled the pernicious lie that gay people are inherently a threat to children.  Why did Scalia’s mind go there?  Surely there are other categories of people he could have mentioned to make the same point.

Scalia’s comment about believing in a democracy also has to be taken in context: He voted with the 5-4 majorities in Citizens United (opening up our elections to unlimited corporate and special-interest money) and Shelby County (gutting the heart of the Voting Rights Act and empowering those who seek to win elections by disenfranchising Americans who might vote against them).  And, of course, he was with the 5-4 majority in the ultimate judicial middle finger to democracy, Bush v. Gore.

At the heart of our democracy is the right to vote in free and fair elections.  That means elections without barriers designed to keep the “wrong” people from voting, and elections where the voices of ordinary people are not drowned out by a tiny sliver of phenomenally wealthy and powerful interests.  That is what a healthy democracy looks like, and it makes Scalia’s comments quite ironic.

PFAW Foundation

On Judges, GOP Senate Finally Breaks Into Double Digits

The Senate is scheduled to vote to confirm New York district court nominee LaShann DeArcy Hall late this afternoon.  She will only be the tenth judge confirmed this year, even though it’s already the week before Thanksgiving.

What explains this ridiculously low number?

It isn’t because this is the first year of a new administration, so that nominations weren’t made until several months into the year.  In fact, when the Senate convened this year, the Judiciary Committee immediately had eleven circuit and district court nominees from last year to consider, one of them being DeArcy Hall.  She isn’t the only 2014 nominee who still hasn’t been confirmed: Third Circuit nominee L. Felipe Restrepo is still waiting for a confirmation vote.

The low number of judicial confirmations also isn’t because the nominees are controversial.  Almost all of them faced no opposition whatsoever in the Judiciary Committee or on the Senate floor.  But that didn’t stop Republicans from slow-walking them at every step of the way.

Take Restrepo, for instance: He has the support of both his home state senators, one a Democrat and the other a Republican.  He had been unanimously confirmed to a district court judgeship in 2013, so the Senate had already done a thorough and recent vetting of his background.  Yet Senator Pat Toomey and Chairman Chuck Grassley collaborated to delay Restrepo’s committee hearing until seven months after his nomination.  He impressed the members of the Judiciary Committee and demonstrated to each one of them that he was highly qualified to serve on the Third Circuit, yet Grassley delayed a committee vote for two weeks without an explanation.  And for the more than four months since then, day after day after day, GOP leadership has refused to schedule a confirmation vote to let an unquestionably qualified jurist fill a vacancy that has been formally designated a judicial emergency.  Now more than a year has gone by since his nomination.

The low number of judicial confirmations also can’t be explained by a lack of need for judges.  Restrepo is hardly the only slow-walked nominee this year who would fill a judicial emergency.  In fact, the number of judicial emergencies nationwide has skyrocketed from 12 at the beginning of the year to 29 today (after DeArcy Hall is confirmed).  Similarly, the number of circuit and district court vacancies has risen dramatically, from 40 at the beginning of the year to 62 after today’s confirmation.

Even if every vacancy were to be filled tomorrow, there would still not be enough judges to ensure every American’s opportunity to have their day in court.  Judges are so overwhelmed that the Judicial Conference of the United States recommended in March of 2015 that Congress create five new circuit court seats and 68 new district court seats (as well as make permanent nine district court seats that are now temporary).  So filling vacancies is a priority.

Or at least it should be, if you value having an effectively functioning federal court system with fair, independent, and unbiased judges ensuring that everyone’s rights are protected.

But the Republicans’ strategy since President Obama took office has been to gum up the works as much as possible, to make the confirmation process as slow as they can get away with in order to maximize the number of vacancies available for the next (Republican) president to fill.  This has damaged our courts and coarsened our politics.

In addition to DeArcy Hall, there are 14 other circuit and district court nominees ready for a vote.  There is no reason not to act on every single one of them before the Thanksgiving recess.


Supreme Court Takes Up Most Significant Reproductive Rights Cases in Decades

This post originally appeared on the Huffington Post.

The Supreme Court announced today that it will decide on the constitutionality ofsevere restrictions adopted in Texas that threaten to make it virtually impossible for many women there to obtain safe and legal abortions.

Coupled with the Court's recent decision to hear cases on whether certain employers can effectively deny their female employees the contraceptive coverage they are entitled to receive under the Affordable Care Act (ACA), the 2015-16 Supreme Court term could well become the most significant for women's reproductive rights since the Court upheld the right to choose in Planned Parenthood v. Casey in 1992 -- and almost as significant as when the Court overturned a law banning contraception 50 years ago in Griswold v. Connecticut.

The Texas case, Whole Woman's Health v. Cole, concerns a law imposing restrictions on clinics so severe that they would reduce the number of clinics that perform abortions in the state from more than 40 a few years ago to just 10, including none at all in the 500 miles between San Antonio and the New Mexico border. The state has claimed that the limits, requiring extensive hospital-like equipment and doctors with hospital admitting privileges even for clinics that offer abortions only through oral medication, are important to protect women's health.

These claims are belied not only by the medical evidence, but also by Texas politicians'; statements, such as Governor Rick Perry's vow to "pass laws to ensure" that abortions are "as rare as possible."

That law clearly violates the 5-4 ruling of the Court in Casey, which upheld the basic right to choose of Roe v. Wade, and held that such laws must truly be important to protect women's health and not impose an "undue burden" on that right. Will the Court uphold and correctly apply Casey and continue to protect reproductive rights? Given the stark divisions on the Court, the answer may well come down to the vote of Justice Anthony Kennedy, the last member of the five-person Casey majority who is still on the Court today.

The Court has also agreed to hear what many are already calling "Hobby Lobby II." Last year, the Court ruled 5-4 that owners of for-profit companies like Hobby Lobby could use the Religious Freedom Restoration Act (RFRA) to raise religious objections and exempt themselves from providing contraceptive coverage to female employees as required by the ACA. To do so, the Court suggested that the companies could use the opt-out mechanism available to religiously-affiliated colleges and other nonprofits and inform the government of their religious objections, so the government could arrange for insurers to provide the coverage without cost to the employer.

Now, however, many of these nonprofits are claiming that the opt-out mechanism itself violates RFRA. In other words, they want to not just refuse to provide contraceptive coverage to their employees, they also want to make sure the government cannot make other arrangements, so that the women will be deprived of contraceptive coverage guaranteed by the ACA.

Seven out of eight lower federal appeals courts have rejected these claims, ruling that simply telling the government of their objections and the identity of their insurer is not a "substantial burden" on nonprofits' religious free exercise under RFRA and that the government has a compelling interest in providing contraceptive coverage.

Justice Kennedy, who provided the fifth vote in Hobby Lobby, suggested in a concurring opinion that the opt-out was an appropriate accommodation. But if the Court upholds the nonprofits' objections in Zubik v. Burwell, the result will be devastating to the ability of women to get contraceptive coverage, especially since for-profit companies like Hobby Lobby will likely make the same claim that religion allows them also to completely deprive their female employees of contraceptive coverage. Although not as coercive as the Connecticut ban on contraceptives overruled in Griswold, the result could well be even more devastating to reproductive freedom across the country, allowing employers to transform RFRA from a shield to protect religion into a sword to harm reproductive rights.

Both the clinic and the contraceptive cases are highly likely to produce divided 5-4 decisions that will be enormously important to women' reproductive rights. With four of the justices in their 80s during the term of the president elected next year, these cases once again demonstrate the crucial stakes in the 2016 election for reproductive rights, as well as for so many other rights central to our liberty and freedom.


Pat Toomey's Insulting Explanation for Withholding Blue Slips

Pennsylvania’s Republican Senator Pat Toomey has been harshly criticized for collaborating with his party’s efforts to obstruct Third Circuit nominee L. Felipe Restrepo a judicial nominee from Pennsylvania who Toomey says he supports.  The senator now appears to be doing the same thing with several Pennsylvania district court nominees who he himself actually recommended to the White House.

Specifically, he is refusing to submit the “blue slips” for Eastern District nominee John Younge, and for Western District nominees Robert Colville, Susan Paradise Baxter, and Marilyn Horan.  All four were recommended by both Toomey and his Democratic colleague, Bob Casey.  When the White House nominated them back in July, both senators praised them.  However, only one of the senators actually did something to move the nominations: Casey swiftly submitted his “blue slips,” which is how senators signal that they don’t object to the Judiciary Committee considering a judicial nominee from their state.  Blue slips aren’t part of Senate or committee rules; they are simply a courtesy of the chairman, who decides for himself the importance he gives them.  Under current practice, the chairman won’t schedule a hearing until he gets blue slips from both  home state senators.

In the nearly five months since the four Pennsylvanians were nominated upon Toomey’s recommendation, he has refused to submit his blue slips.  When a reporter from the Butler Eagle asked for an explanation, he was told that Toomey was waiting for the committee to complete its background investigation of the nominees.  This is the same line he eventually settled on with Restrepo, an explanation that was full of holes and simply not believable.  Nor is it any more believable now.  From the Butler Eagle:

According to a Toomey staffer, the senator will not submit the blue slip for any judicial candidate until the investigation is done, just to make sure the candidates’ backgrounds are clear. If any problems turn up in the investigation and the blue slip already is turned in, there is nothing to stop a vote on the nominee, the staffer said.

That’s simply false.  Just ask Steve Six, a Tenth Circuit nominee from Kansas in 2011, when Democrats held the Senate majority.  Republicans home state senators Pat Roberts and Jerry Moran submitted their blue slips, and Six had a confirmation hearing.  But afterward, the senators rescinded their blue slips.  Then-Chairman Patrick Leahy, who supported the nominee, was not at all happy about this.  Nevertheless, he chose to accede to the home-state senators’ modified wishes, and he never held a committee vote for Six, which essentially ended the nomination.

Does Toomey really think the current chairman, who is of his own party, would not show a similar courtesy to Toomey that Democrat Patrick Leahy showed to the Republican senators from Kansas?  Chuck Grassley might not appreciate Toomey’s lack of faith in him.

Or perhaps Toomey is assuming his constituents won’t realize that the story he is peddling makes no sense.

With Restrepo and four district court nominees, Toomey continues to collaborate with Washington, DC party leaders to obstruct judicial nominees he says he supports.  Individuals and businesses in Pennsylvania who rely on a functioning court system are the ones who pay the price.


An Anniversary Pat Toomey Should Be Ashamed Of

Today is the one-year anniversary of the nomination of L. Felipe Restrepo to the Third Circuit Court of Appeals.  That Restrepo hasn’t yet been confirmed says volumes about Senate Republicans, and especially Pat Toomey.

When Restrepo was nominated, both of his home state senators – Democrat Bob Casey and Republican Pat Toomey – released enthusiastic statements of support.  Unfortunately, only one of them matched his words with deeds.  Casey submitted his “blue slip,” signaling his approval for the Judiciary Committee to take up the nomination.  Toomey didn’t.  That’s critically important, because under current practice, the chairman won’t schedule a hearing let alone hold a committee vote without blue slips from both  home state senators.  So as Toomey sat on his hands, month after month went by with no hearing for Restrepo.  As winter turned to spring, people were wondering where Toomey was on Restrepo’s nomination.

In early May, as the Huffington Post’s Jen Bendery reported, Chairman Chuck Grassley said he’d hold a hearing once Toomey got his blue slip in.  When Pennsylvania constituents with the National Council of Jewish Women tried to meet with Toomey’s office to ask why he was blocking Restrepo, they were turned away.

Within a few days came a slew of bad in-state press for the senator, including articles in the Philadelphia Inquirer ("A judicial nominee waits; Toomey gets blamed"), the (Allentown) Morning Call ("What's Holding Up a Pa Appeals Court Nominee?"), the Pittsburgh Post-Gazette ("Confirmation Vote on Pennsylvania Jurist Awaits 'Blue Slip' from Toomey"), and the Legal Intelligencer ("Political Maneuvers Holding Up Nominee for Third Circuit"). Toomey's obstruction of the man who would be only the second Latino judge ever on the Third Circuit (and the first from Pennsylvania) has also prompted coverage in the Latin Post ("Democrats, National Groups Urge GOP Senators to Expedite Nomination Process of Judge Luis Felipe Restrepo After Delays"), criticism from leading civil rights figure and PFAW Board member Dolores Huerta ("Toomey and Republicans: Do Your Job, Confirm Restrepo"), and a request from the Hispanic National Bar Association that Toomey urge the Judiciary Committee to swiftly consider the nomination.

Toomey finally broke his silence and blamed Grassley, saying that he was waiting for the committee’s background investigation to be completed, an explanation that didn’t pass the laugh test.  After all, Restrepo already had a thorough background investigation for his confirmation to the district court in 2013, so why would it take so long to complete one to cover only the short interval since then?  And why didn’t Toomey mention this when he had been asked about it earlier?  Nor had Grassley said anything about this initially.  After this embarrassment, the two Republican senators coordinated their stories more effectively (as has been the case with Grassley and the other GOP Senators who, unlike their Democratic counterparts, withhold their blue slips for months).

Finally, Toomey submitted his blue slip on May 14, half a year after the nomination.  By this time, the vacancy had been formally designated a judicial emergency, and it became known that a second vacancy would be opening on the court during the summer.  Fortunately, there was time for Chairman Grassley to schedule a hearing for Restrepo before the Memorial Day break.  And perhaps he would have done so, if Toomey had made any effort to make it happen.  In fact, with Toomey’s acquiescence, the hearing was delayed until June 10, nearly a full month after Toomey had submitted his blue slip.

But that didn’t end the delays.  The next step in the confirmation process is the committee vote.  Grassley put a Restrepo vote on the agenda for late June, which was great.  However, Grassley has routinely exercised the right to hold over a vote on a nominee without cause, and his staff signaled he would do this to Restrepo (again, with no explanation as to why).  This gave Toomey plenty of time to do what his constituents were asking him to do: step up and ask Grassley not to needlessly delay advancing Restrepo to the full Senate.  Unfortunately, when asked if Toomey would talk to Grassley, Toomey’s office ducked the question, saying that the Pennsylvania senator isn’t a member of the committee and does not control the scheduling of votes.  Of course, senators routinely speak to their colleagues to help advance home-state nominees who they support.  No one was tying Toomey’s hands but himself.

Finally, on July 9, eight months after being nominated, Restrepo was approved by the committee by unanimous voice vote.  At that point, it was up to Toomey’s fellow Republican, Majority Leader McConnell, when to hold a confirmation vote.  With Toomey’s help, the Senate could have confirmed Restrepo quickly, and certaily before the summer recess would begin a month later.  It soon became clear, however, that Toomey was not pressing McConnell on timing on a vote, and the senators left town until September.

And now here we are, in mid-November, and Restrepo remains unconfirmed, the result of Toomey’s collaboration with his party leaders to obstruct judicial nominations as much as possible. For individuals and businesses in Pennsylvania (as well as New Jersey and Delaware, the other two states within the Third Circuit), having two vacancies unfilled means not having timely access to justice.  This judicial emergency could have and should have been filled many months ago.

Restrepo was nominated one year ago today.  It is an anniversary that Pat Toomey should be ashamed of.


5th Circuit Immigration Ruling Shows Importance of Courts & Elections

Yesterday, a sharply divided three-judge panel of the Fifth Circuit ruled against the legality of the Obama Administration’s Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”), as well as the expansion of the Deferred Action for Childhood Arrivals program (“DACA”). 

The majority opinion was written by Judge Jerry Smith, who was nominated to the court in 1987 by President Ronald Reagan.  Millions of people across the country will be harmed by this ruling, which came out the way it did because of whom Americans decided to elect for president 31 years ago.  Joining the majority was a George W. Bush nominee, Judge Jennifer Walker Elrod. It is a powerful reminder that one of the most important issues in any presidential election is the type of judges the person elected to the office would place on the bench to decide on our most basic legal rights .

Judge (and Jimmy Carter nominee) Carolyn Dineen King authored a dissent that even the majority praised.  As she pointed out, there are about 11.3 million undocumented immigrants in the United States who the law says should be removed from the country, but Congress provides resources to remove only a tiny fraction of them.  Any presidential administration would have to have broad prosecutorial discretion in deciding how to allocate those resources.  But on top of that, Congress specifically gave the president broad authority to establish policies and set priorities in how to allocate those scarce resources.  That is exactly what the Obama Administration has done in the DAPA program.  No wonder that so many legal scholars have concluded that the program is legal.

But the majority disagreed.  They upheld the district court’s conclusion that DAPA required a period of public notice and comment before going into effect, under the Administrative Procedure Act.  In addition to the procedural issue, they chose to address a substantive legal question not answered by the lower court, concluding that DAPA is foreclosed by federal statutes governing immigration.  So even a formal comment period would not save the policy, in their eyes.  (They did not rule on any constitutional issues.)

The majority did not argue that the Department of Homeland Security lacks the authority to defer deportation for those covered by DAPA … as long as those deferred don’t have the right to work legally, have Social Security benefits, obtain driver’s licenses, etc.  The court majority concluded that the granting of such benefits to millions of undocumented immigrants is inconsistent with congressional intent.  Judge King disagreed, writing that Congress has given enormous discretion to the president to set enforcement priorities for deferred deportation, and that the positive consequences of deferred deportation were written into the law long before DAPA came about.

The dissent stated that “this case essentially boils down to a policy dispute,” one that, under existing law, is appropriately resolved via the political process.  Indeed, it is legal and not political arguments that should carry the day in our nation’s courts.  Yet this court case began when Republican governors chose to file their lawsuit in Brownsville, Texas, so they could have it decided at the district level by Judge Andrew Hanen, whose intense political disagreement with the federal government’s immigration enforcement policies has infected his judicial opinions.

It is also hard to forget the greater context in which the political debate is occurring.  Republican officials across the country have loudly and forcefully condemned DAPA.  This is the same party whose base has become sharply anti-Latino over the past few years.  It is also a party with a leading presidential candidate calling for rounding up 11 million immigrants and kicking them out of the country.  The other Republican presidential candidates have hardly repudiated that as unacceptable; to the contrary, they have all promised to endorse Donald Trump’s candidacy should he be the party’s nominee.

As PFAW Board member Dolores Huerta said this morning:

Because of Republican-appointed judges on the court, families who have lived in and contributed to our country for years could be torn apart. Yesterday’s 2-1 decision from the 5th Circuit Court was fundamentally incorrect. It is a reminder of how much courts matter, as well as how important presidential elections are, since it’s the president who nominates justices.

While every single one of the Republican presidential candidates has spoken out against President Obama’s executive actions, Democratic candidates have discussed ways to expand his actions to protect people from deportation. Latino communities across the country are listening, and in the next election we’ll hold Republican candidates responsible for their efforts to break up families.


Grassley's Moves Against Democratic Senators' Judicial Nominees

Since Republicans took over the Senate, they’ve used their control of the Judiciary Committee (through Chairman Chuck Grassley) and of the Senate floor (through Majority Leader Mitch McConnell) to make the consideration of judicial nominees as slow as possible.  That only nine have been confirmed this year is ridiculous, and it is why judicial vacancies and emergencies have skyrocketed since the start of the year.

But there’s been hope, in the form of two nominees from Iowa who were recommended to the White House by Chuck Grassley.  One of them (Rebecca Goodgame Ebinger) is President Obama’s most recent nominee, having been nominated on September 15.  Grassley wants both Iowans confirmed quickly.  Since Grassley promised to process nominees in the order he received them last spring, he should have pulled out the stops to process all the other nominees so the committee could quickly get to Ebinger.

But that isn’t what’s happened.  Instead, Grassley leapfrogged her over ten longer-waiting district court nominees for the one and only judicial nominations hearing he held last month.  Some of those nominees are from states with at least one Republican senator, where he can count on them to delay submitting their blue slip for months, a way the GOP can slow down the process as much as possible.  (For an example of how this works, just ask Pennsylvania’s Pat Toomey.)  But four of the skipped nominees come from states with two Democratic senators, who – wanting to see their recommended nominees confirmed as soon as possible – had turned in their blue slips early on:

  • Inga Bernstein (Massachusetts), nominated July 30
  • Mary McElroy (Rhode Island), nominated September 8
  • Stephanie Gallagher (Maryland), nominated September 8
  • Clare Connors (Hawaii), nominated September 8

Grassley hasn’t held another judicial nominations hearing since then, so they are still waiting.

In the meantime, the committee last week advanced Ebinger and four other nominees to the full Senate.  In the order they were nominated, they are:

  • Julien Neals (New Jersey), nominated February 26
  • Mark Young (California), nominated July 16
  • Leonard Strand (Iowa), nominated July 21
  • Gary Brown (New York), nominated July 30
  • Rebecca Ebinger (Iowa), nominated September 15 (and the only one of these five that is not a judicial emergency)

But even here, Grassley found a way to leapfrog his nominees.  Since the Senate has been voting (albeit ridiculously slowly) on nominees in the order they’ve come out of the Judiciary Committee, a judicial nominee’s chances of getting a vote from the GOP-controlled Senate by year’s end are likely higher if they are listed ahead of the Iowa nominees.  A press for floor votes for both Iowans should help those ahead of them in line: Not just the nominees already waiting weeks and months since committee approval, but also the ones just approved by the committee but nominated long before Ebinger.

But in sending the list of five approved nominees to the full Senate, Chairman Grassley made sure to list the Iowans first.  That’s not fair to Neals, who was nominated nearly seven months before Ebinger, or to Young and Brown, or to any of the people waiting for justice in their overburdened judicial districts.

It’s also bad news for the Democratic senators who recommended them, who know full well that Grassley’s machinations hurt the chances of timely confirmation for their chosen nominees.

Putting both the hearing and the confirmation list leapfrogging together, that’s a lot of Democratic senators who Grassley has moved against:

  1. Elizabeth Warren (MA)
  2. Ed Markey (MA)
  3. Jack Reed (RI)
  4. Sheldon Whitehouse (RI) – one of Grassley’s fellow members of the Judiciary Committee
  5. Barbara Mikulski (MD)
  6. Ben Cardin (MD)
  7. Brian Schatz (HI)
  8. Mazie Hirono (HI)
  9. Robert Menendez (NJ)
  10. Cory Booker (NJ)
  11. Dianne Feinstein (CA) – one of Grassley’s fellow members of the Judiciary Committee
  12. Barbara Boxer (CA)
  13. Chuck Schumer (NY) – one of Grassley’s fellow members of the Judiciary Committee
  14. Kirsten Gillibrand (NY)

They are learning the hard way that a chairman’s prerogatives can be abused.


SCOTUS Will Hear Latest Contraception Coverage Refusal Cases

The Supreme Court today announced that it will hear several cases involving the accommodation for religious nonprofits seeking to opt out of the Affordable Care Act’s contraception coverage requirement.  This is not a surprise; as we wrote in our Supreme Court 2015-2016 Term Preview:

Under the accommodation, the employers simply tell the insurer or the federal government of their objection, at which point the insurer must offer the coverage separately to employees who want it. This way, the employees can get the coverage without their employers having to contract, arrange, or pay for it.  But some religious nonprofits assert that even the accommodation violates their religious liberty under the Religious Freedom Restoration Act (RFRA).  Under RFRA, no federal law imposing a substantial burden on religious exercise can be sustained unless it is the least restrictive means of achieving a compelling government purpose.

The list of circuit courts that have roundly rejected this argument is long:  The DC Circuit, the Second Circuit, Third Circuit, the Fifth Circuit, the Sixth Circuit, the Seventh Circuit, and the Tenth Circuit.  But in September 2015, the Eighth Circuit ruled in favor of the nonprofits and found the accommodation violated RFRA.  Now that there is a circuit split, it seems likely that the Supreme Court will take up the issue via the appeals from one or more of these circuit decisions.

The premise of those challenging the accommodation is a severe distortion of RFRA and of the very concept of religious liberty set forth by the Court’s hard-right conservatives in the 5-4 ruling in Hobby Lobby.  That law was passed with overwhelming bipartisan support in 1993 as a means to protect the free exercise of religion.  But conservative ideologues have sought to transform RFRA from a shield into a sword, one that they can use to violate the rights of third parties.  The right wing’s enthusiastic embrace of Kentucky county clerk Kim Davis shows just how far they want to extend the reasoning of Hobby Lobby.

Here, the conservatives argue that filling out a form so that insurance companies can know about their legal obligations to provide certain coverage is a substantial burden on the exercise of their religion.  That strained reasoning is a cynical use of religion to deprive women of needed healthcare, an effort to force women employees to live by their employers’ religious strictures rather than their own.  But what the Supreme Court said about the First Amendment in a 1985 case called Estate of Thornton v. Caldor is equally true of RFRA:

The First Amendment . . . gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities. [quoting from a lower court opinion by Judge Learned Hand]

Justice Kennedy, who voted with the Hobby Lobby majority, is likely to be the deciding vote in this case.  His concurrence in Hobby Lobby hinted that he might not go as far as his fellow conservatives in granting people the latitude to use RFRA to deprive others of their rights:

Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion.  Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.  In these cases [involving for-profit employers] the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here [the accommodation for religious non-profits].

Given the circuit split on the accommodation for religious nonprofits, the Supreme Court had little choice but to take this issue on.  They do have a choice, however, in how they rule.  Hopefully, a majority of justices will take the first step in restoring RFRA to the law it was intended to be.

PFAW Foundation

See, It's Not So Hard to Be Fair to Judicial Nominees!

Judiciary Committee Chairman Chuck Grassley scheduled a committee vote on five judicial nominees for this morning.  Four of them had their hearings just two weeks ago.  It is hardly the norm for Grassley to hold committee votes for Obama judicial nominees so quickly.

So what’s so special about these four?  Well, actually, it’s just two of them that are the cause of this departure from Grassley’s pattern of obstruction: Leonard Strand and Rebecca Ebinger are from his home state of Iowa, and Grassley is the one who recommended them to the White House.

Ebinger was leapfrogged over ten other nominees so Grassley could include her in the committee hearing two weeks ago.  In fact, Grassley and fellow Iowa senator Joni Ernst turned in their blue slips approving her nomination before her paperwork was even submitted to the Judiciary Committee.  How’s that for effectiveness?

Fortune is shining down on two other nominees, as well.  Gary Brown (Eastern District of New York) and Mark Young (Central District of California) had the good fortune to share a hearing day with the Iowa nominees, and they were also scheduled for a committee vote today, just two weeks later.

But it wasn’t only the scheduling of the committee vote that was unusual: the fact that Republicans didn’t delay the vote by at least a week was equally out of the ordinary for them.  Once Obama became president, Republicans began to exercise the right of the minority party to have a committee vote “held over” (delayed) by at least a week without cause in all but a handful of exceptions, an unprecedented abuse of the rules.  They have continued this practice as the majority party, even though they are the ones scheduling the initial votes in the first place. 

As we said when we first wrote about this particular tool of obstruction in 2011:

Voting on a federal judicial nomination is an extremely serious responsibility and one that requires diligent research and thought. So if senators sincerely have questions that have not been answered, or genuine and substantial concerns about a nominee's fitness for the bench, then no one should begrudge them an extra few days to gather additional information.

But when Republicans exercise this option for every nominee, even those who are strongly supported by their home state Republican senators and have no opposition whatsoever, then their sincerity must be called into question.

But today, although it was the first time on the agenda for Strand and Ebinger (the two Iowa nominees) and for Brown and Young (the New York and California nominees), Chairman Grassley made sure they all got a timely vote rather than holding them over.

That was the right thing to do.  Would that it weren’t so rare.

As today’s committee meeting shows, it really isn’t hard to treat judicial nominees fairly, giving them full but timely consideration.  You shouldn’t have to be Chuck Grassley’s hand-picked judges (or be lucky enough to share a hearing with them) to get that fair treatment.