Supreme Court Goes Back to Work in January and Shows Again Why Election Day is Judgment Day

This piece originally appeared in the Huffington Post.

After a Holiday break, the Supreme Court returned to a full schedule of arguments and other activity in January. The crucial oral argument before the Court this month in Friedrichs v. California Teachers Association, as well as several cases that the Court agreed to review later this year, again show that on a variety of important issues, the Court has enormous influence but is closely divided. With the president elected in November likely to select as many as four new Supreme Court justices beginning as early as next year, the person we elect as president will be critical. That’s why Election Day 2016 will be Judgment Day for the Court and our rights and liberties.

Friedrichs is the latest battle in what the New York Times has called the “war on workers” and unions being waged by Justice Alito and other conservatives on the Court. A primary target of that war has been a decision almost 40 years ago inAbood v. Detroit Board of Education. In that case the Court determined that although workers cannot be forced to join a union or contribute to its political activities, since that would violate their First Amendment rights, they can be required to help pay for the costs of collective bargaining and related activities from which they benefit even if they are not union members. That solution to what would otherwise be a “free rider” problem is crucial to the ability of unions to effectively represent the interests of workers.  Even though a unanimous Supreme Court recognized the principle of Abood as recently as 2009, subsequent 5-4 decisions written by Justice Alito have criticized that ruling and effectively invited attempts to overturn it. That is exactly what the plaintiffs in Friedrichs, a small group of California teachers, are attempting to do, claiming they should not have to join or pay “fair share” costs to the state teachers union and that Abood should be overturned.

The justices’ comments at the oral argument made clear that the conservative 5-4 majority remains hostile to unions and Abood, and may well be prepared to overrule it this year. (As usual, Justice Thomas did not speak at the argument, but his negative views in this area have been made clear in past opinions). Particularly troubling were some comments by Justice Kennedy, who is often the “swing” vote on the Court, but in this case maintained that “free riders” are really “compelled riders” who, he claimed, are forced to support unions on “issues on which they strongly disagree.” Regardless of the merits of that claim, on which many have disagreed, it strongly suggests that there may now be five votes to overturnAbood, with disastrous consequences for unions and workers.

It is impossible, of course, to predict the precise outcome of a Supreme Court case based on the oral argument, and the Court could issue a decision that does not completely overrule Abood. The Court could send the case back to a lower court for specific fact-finding on issues like the impact of eliminating “free rider” payments on unions, as was suggested at one point in the argument, or could limit its holding to the specific case in California. Particularly if the Court chooses one of those alternatives, the question of who will replace older justices like Kennedy, Ginsburg, and Scalia when they retire will be critical. That is why the election in November of our next president, who will nominate such replacements, is crucial for the Court and workers’ rights. Even an outright overruling of Abood could be softened or revisited, but only if a progressive president is elected and selects more progressives Justices for the Court.

During January, the Court also agreed to review several important cases on other subjects this year. The case that has generated the most controversy is United States v. Texas, where lower courts have put on hold the president’s executive orders on immigration that would defer deportation enforcement against millions of undocumented immigrants who have children who are citizens or legal permanent residents and would be able to apply for jobs and stay in the U.S. for three years.  Twenty-six states led by Texas filed the challenge, and the huge partisan divide on the question almost guarantees that it will be an election issue this fall. The most extreme Justices on the Court (Scalia, Alito and Thomas) have voted against virtually every significant Obama initiative that has come before the Court, and the Court’s decision to add a question for the parties to address - whether the Obama order is consistent with the Constitution’s language that the president should “take care” that federal laws be “faithfully executed” -- suggests deep skepticism by some of the justices. The decision itself could have a huge impact not only on this specific issue, but also on the ability of a future progressive president to take other executive action in the face of a recalcitrant Congress. However this case is decided, there is also little question that these issues will return to the Court in 2017 or later, and the views of the president who will appoint future justices will be crucial to the results. 

The Court also decided in January to review several other important cases this year. In one, the Court has been asked to decide whether a state constitution can more strictly separate church and state than the increasingly conservative Supreme Court has and can prohibit any direct state financial aid to religious institutions. Thirty-five states have such constitutional provisions, and the Court is very divided on such religion issues, which are very likely to come up in the future as well. And in another big business vs. consumers case, the Court will consider what must be proven to prosecute someone for illegally using inside company information for stock or other trading. This issue has divided lower courts, one of which has adopted a narrow interpretation that has dealt a significant setback to the efforts of Manhattan U.S. Attorney Preet Bharara to crack down on insider trading in the $3 trillion hedge fund industry. The Court is likely to be divided on this issue as well.

The Court’s decisions in both these cases later this year will be important in and of themselves. But they are also very unlikely to be the last word on the significant big business, consumer, and religion issues they raise. The fact that these and other crucial issues will be decided by this divided Court in the future, and the fact that four justices on the current Court will be over 80 in the next president’s first term, is what makes the identity of the president who will appoint future justices so important. Statements this month by both Democratic and Republican candidates show that, even as they also discuss other issues, they clearly recognize the importance of the election for the future direction of the Court. In short, Election Day 2016 truly is Judgment Day for the Supreme Court and for all of our rights and liberties.

PFAW

Divided Supreme Court Issues Good Decision in Important Class Action Case

On Wednesday of this week, in an important case on class actions previewed last September by PFAWF, the Supreme Court handed down a good ruling for consumers concerning class actions. This was an unusual development for the Roberts-Alito Court, which has generally gone along with big business efforts to limit class actions as an important remedy. This time, although Roberts and Alito (and Scalia) dissented, six justices led by Justice Ginsburg rejected a corporation’s effort to hurt consumers.

Class actions are a crucial type of lawsuit that allows consumers and others with relatively small individual claims to band together and seek large amounts of damages to help hold corporations accountable for wrongdoing. In this case, Campbell-Ewald Co. v. Gomez, the corporation had violated federal law by sending unwanted telephone solicitations to some 100,000 people. Jose Gomez got one of those solicitations and filed a lawsuit, asking  for the maximum statutory remedy for himself of $1500 but also seeking to bring a class action on behalf of the tens of thousands of other people who received the unwanted solicitations. The corporation tried to end the suit by offering to pay Mr. Gomez  his $1500 and then arguing that its offer ended the lawsuit and the basis for the class action.  If allowed, that would give corporations an easy and inexpensive way to prevent most class action lawsuits.

The Supreme Court rejected the corporation’s ploy in a 6-3 vote. As Justice Ginsburg explained, if a plaintiff like Mr. Gomez rejects an offer, even if it is for the maximum amount that could be recovered individually, the case remains alive and able to be pursued  as a class action.  Chief Justice Roberts, joined by Justices Alito and Scalia, dissented and argued, as they usually do, that the corporation should prevail , since it was willing to give Mr. Gomez “everything he asks for.” As Justice Ginsburg explained in response, that “would place the defendant in the driver’s seat”, improperly allowing corporations to spend minimal amounts to pay off individual plaintiffs and forestall class actions.

This decision will not remedy the damage that the Roberts-Alito Court has previously done, and could well do in the future, to limit class actions and harm consumers. And the Court left open the question of whether a corporation can stop a class action by formally placing the full amount of an individual’s claim in an account and getting a lower court to rule for the individual and dismiss the class action claim. This loophole should be closed by the Court, as the New York Times explained, to “protect what remains of the class action from the unrelenting efforts of business to undermine it.” At least in this case, however, even Roberts and Alito could not muster the votes needed to further harm consumers and help big business.

PFAW Foundation

PFAW Hosts Briefing & Rallies at the Supreme Court for Workers’ Rights Case

Just hours after the Supreme Court heard oral arguments this morning in a case that will likely have a profound impact on the rights of working people, Friedrichs v. California Teachers Association, People For the American Way hosted a member telebriefing to help unpack what’s at stake in the case.

On the call, PFAW Senior Fellow and constitutional law scholar Jamie Raskin explained that at issue in Friedrichs are “agency fees” that allow the costs of collective bargaining and other union benefits to be shared by all public sector employees rather than by union members alone. Attacking this practice amounts to “a broad-based assault on public sector unions,” Raskin said.

PFAW Executive Vice President Marge Baker situated the case within the context of the Roberts-Alito Court’s pro-corporate record, where the high court has consistently privileged the interests of corporations over the rights of individual people, such as in the Citizens United decision.

“Workers have a right to stand up for themselves” and to “represent their own interests,” Baker added.

Before the telebriefing, PFAW staff and supporters were at the Supreme Court demonstrating in support of the rights of working people as the justices heard arguments in the case.


You can listen to the full telebriefing below, and read affiliate PFAW Foundation’s new report on “Corporations, Unions, and Constitutional Democracy” here.

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PFAW

Hillary Clinton Lays Out Her Vision For the Supreme Court

In an op-ed today in the Boston Globe, former Secretary of State Hillary Clinton takes on what may be the biggest issue at stake in the 2016 election: the future of the US Supreme Court.

The court’s decisions have a profound impact on American families. In the past two decades alone, it effectively declared George W. Bush president, significantly weakened the Voting Rights Act, and opened the door to a flood of unaccountable money in our politics. It also made same-sex marriage legal nationwide, preserved the Affordable Care Act not once but twice, and ensured equal access to education for women.

On Election Day, three of the current justices will be over 80 years old, which is past the court’s average retirement age. The next president could easily appoint more than one justice. That makes this a make-or-break moment — for the court and our country.

That’s true. As People For the American Way recently laid out in our Judgment Day report, virtually every single important issue—from voting rights to guns to reproductive freedom to workplace fairness to the environment and beyond—will be at stake before the Supreme Court. And because the Justices most likely to retire in the next few years come from both sides of the bench, our country has the opportunity to pull the Court from its dangerous rightward lurch of the last decade—or to solidify a far-right majority for a generation.

But just as important as preventing the next president from appointing more Justices in the mold of Scalia, Thomas and Alito, we need to elect a President who will appoint extraordinary jurists who understand the profoundly progressive nature of our constitution. In her op-ed, Senator Clinton lays out what that looks like.

As president (and a lawyer and former law professor), I’ll appoint justices who will protect the constitutional principles of liberty and equality for all, regardless of race, gender, sexual orientation or political viewpoint; make sure the scales of justice aren’t tipped away from individuals toward corporations and special interests; and protect citizens’ right to vote, rather than billionaires’ right to buy elections.

Secretary Clinton isn’t alone in laying out a progressive vision for the Court. Senator Bernie Sanders has spoken repeatedly about the Supreme Court’s decision in Citizens United and how we need to "overturn this disastrous decision.”  And Governor Martin O’Malley has promised to “appoint judges who don't think corporations are people.”

All of this is good news for progressives—and why People For the American Way has been pushing so hard for more conversation about the importance of the Supreme Court as we head into the 2016 election. But it’s not enough.

In the coming weeks and months we’ll continue to push candidates of both parties to make clear what kind of judges they’d appoint to our nation’s highest courts, because, as Secretary Clinton says, “There’s a lot at stake in this election. Nowhere is this clearer than in the US Supreme Court.”
 

PFAW

On Judges, the Worst Year Since 1960

At the end of the year, Senators of both parties often reach agreements to clear the decks of consensus judicial nominees.  At least that was often the case before the Obama-era Republican Party went into “resistance movement” mode and set out to sabotage all things Obama.  Now, as Republicans end their first year in control of the Senate, there are 13 consensus circuit and district court nominees waiting for a floor vote… and they have agreed to confirm exactly zero of them before leaving town.

What they have agreed to is the following:  (1)  unopposed Third Circuit nominee Phil Restrepo, approved by the Judiciary Committee back in July, will finally have his confirmation vote on January 11; (2) Majority Leader Mitch McConnell will schedule votes on four unopposed district court nominees some time in January or February, before the President’s Day recess; (3) Republicans will not send any judicial nominations back to the White House, which would have forced them to be renominated and re-approved by committee.

Republicans also gave up in their efforts to bypass all blue-state nominees and let red-state ones skip over them toward confirmation.  The nominees whose votes have been agreed to are highlighted below.  They are not being taken in order, but ones from both blue and red states alike are being skipped.

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

So while President Bush had 40 judges confirmed in 2007 when Democrats retook the Senate, the GOP-controlled Senate will end the year confirming only 11 of President Obama’s judges.  This is the lowest number of circuit and district court judges confirmed in a year since 1960, the end of the Eisenhower era, when there were fewer than half the number of judgeships than there are today.

All 13 of the above nominees could be confirmed today.  They should be confirmed today.  That they won’t be is a testament to the little regard Senate Republicans hold for the federal court system that guarantees the rights of every American.

PFAW

Ginsburg Calls Out the Roberts Court's Empowering of the Powerful

The Supreme Court issued a ruling today in another of its series of arbitration cases.  Yet again, the Court upheld the ability of a powerful corporation to force consumers to agree to arbitration and sign away their right to engage in class action should the company violate their legal rights.  Class actions are a vital mechanism to hold large businesses accountable.  We’ve been writing about this trend for the past several years in cases like AT&T v. Concepcion and American Express v. Italian Colors Restaurant.

Unlike the other cases, today's ruling in DIRECTV v. Imburgia was not 5-4 in the predictable lineup.  Instead, it was 6-3, with Justice Breyer writing the opinion, joined by Justices Kagan, Scalia, Alito, Kennedy, and Chief Justice Roberts.  Justice Ginsburg (joined by Justice Sotomayor) dissented, while Justice Thomas had a separate dissent.

Ginsburg’s dissent opened up with clear description of how the Roberts Court has empowered corporations and weakened consumers:

It has become routine, in a large part due to this Court’s decisions, for powerful economic enterprises to write into their form contracts with consumers and employees no-class-action arbitration clauses.  …  Acknowledging the precedent so far set by the Court, I would take no further step to disarm consumers, leaving them without effective access to justice.

Americans have long been able to count on strong consumer protection laws to protect them for being victimized by predatory corporations.  Those laws, including the right to class actions, have been essential in letting ordinary people stand as equals to giant corporations and hold those businesses accountable.  Ginsburg is correct to say that the line of 5-4 arbitration cases has left us “disarmed,” because giant corporations are increasingly empowered to change the relationship between buyer and seller into one between predator and prey.

We are, indeed, disarmed and without effective access to justice … despite laws designed to protect us.

In closing, Ginsburg wrote that the Court is:

further degrading the rights of consumers and further insulating already powerful economic entities from liability for unlawful acts.

We deserve better from our nation’s Supreme Court.

PFAW Foundation

Senate GOP Floats Plan to Politicize Judges Even More

Yesterday, Senate Republicans – who have allowed only 11 judicial confirmation votes the entire year – at long last agreed to schedule a vote for consensus Third Circuit nominee L. Felipe Restrepo.  The agreement came five months after he cleared the Judiciary Committee unanimously.  As if that needless wait weren’t already evidence of partisan obstruction, Republicans agreed to the vote only if it could be delayed by more than another month, until January 11.

And today, Roll Call is reporting on GOP plans to ramp up partisanship in judicial nominations even more:

Yet there is a decent chance Congress will go home for the year without [confirming anyone].  That would be a signal the process of confirming judges, already at its slowest pace in more than half a century, is grinding to a halt earlier than ever in the life cycle of a modern two-term president.

It remains likelier that, before adjourning next week, the majority Republicans will agree to create a handful of new judges — but perhaps only [Tennessee nominee Waverly Crenshaw] and four more who would also join U.S. District Courts in states represented by two GOP senators.

Currently, there are 13 circuit and district judicial nominees who have been waiting for a confirmation vote, some since as long ago as July.  When Majority Leader Mitch McConnell finally schedules a vote on such a nominee, it has usually 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).  Below is the list of nominees, in order, including the date they were approved by the Judiciary Committee and became eligible for a confirmation vote.  All but Restrepo would serve on district courts.  The list is color coded by partisanship of home state senators (with Restrepo the only one represented by both a Republican and a Democrat).

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

Under the scheme being floated by Senate Republicans, “their” nominees would skip over four district court nominees who come from states with Democratic senators, even though the blue-state nominees have been waiting longer for a vote.  Individuals and businesses in Minnesota, New Jersey, and Maryland would be punished by Mitch McConnell for electing the “wrong” senators, yet another escalation by the GOP in their politicization of the judicial confirmation process.

Every nominee waiting for a vote has been fully vetted by the Judiciary Committee and advanced without opposition to the full Senate.  Each should have a vote before senators go home.  It is bad enough that Restrepo has been needlessly put off to January.  Gaming the list to disfavor certain nominees based on which party their state’s senators belong to would add insult to injury.

PFAW

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.

PFAW

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.

PFAW