Cornyn and Cruz Haven't Helped Their Own Judicial Nominee

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

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

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

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

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

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

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

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

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

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

PFAW

Harry Reid Calls Out Pat Toomey on GOP Blocking of Restrepo

Earlier today, Senate Minority Leader Harry Reid condemned Senate Republicans for obstructing Third Circuit nominee L. Felipe Restrepo.  Although home state Senator Pat Toomey of Pennsylvania publicly expressed support for him half a year ago when he was first nominated, he has blocked the Judiciary Committee from holding a hearing.  Whether he is doing this on his own or at the request of committee chairman Chuck Grassley is a mystery, since Toomey has refused to state why he is blocking a nominee he supports.

As Senator Reid said today:

This afternoon, the Judiciary Committee will hold a hearing on several delayed judicial nominations. Felipe Restrepo, a Court of Appeals nominee to the Third Circuit will not be on the agenda, despite being nominated by the President six months ago. He will not be on the agenda, despite the fact that this Philadelphia-based seat is a judicial emergency. He will not be on the agenda, despite the public support of the junior Senator from Pennsylvania who said Judge Restrepo would be "a superb addition to the Third Circuit." Why doesn't he come here – the junior Senator from Pennsylvania – to talk about this man being held up by his own party? There is no reason that he's held up for six months other than the Republicans just simply want to do everything they can to create problems for President Obama. Pennsylvanians are left wondering why this qualified judicial candidate is not moving forward.

It isn't like Pennsylvanians haven't asked. In fact, some traveled to Washington earlier this week to visit Casey and Toomey's DC offices personally, but Toomey's office reportedly refused to meet with them.

This is part of the Republicans' overall scheme to prevent President Obama from fulfilling his constitutional responsibility to put qualified jurists on the nation's federal bench. But the Third Circuit vacancy is a judicial emergency, and a second vacancy on that court will be opening up in July. Pennsylvanians need Restrepo fully vetted and confirmed by then, but Washington Republicans want to keep the court hobbled for as long as they can.

Senator Toomey seems all too willing to sacrifice Pennsylvanians' interests to his party's political goals.

PFAW

Long Past Time to Let 3rd Circuit Nominee Restrepo Have His Hearing

Senate Judiciary Committee Chairman Chuck Grassley yesterday announced there will be a judicial nominations hearing next Wednesday, the first one since March 11. He let eight weeks go by without allowing any of President Obama's judicial nominees to testify to the committee. It isn't like there haven't been plenty of nominees who have long been ready for this. Most of those nominated as far back as last November have yet to make it even that far.

As we have written before, Eastern Pennsylvania federal judge L. Felipe Restrepo is among those nominees being obstructed. Confirmed to his current position by the Senate by unanimous voice vote in June of 2013, he earned strong statements of support from home state senators Bob Casey (a Democrat) and Pat Toomey (a Republican) when he was nominated for elevation to the Third Circuit last November.

But since then ... nothing. Chairman Grassley has conspicuously refused to schedule a hearing for him. Although Third Circuit Judge Marjorie Rendell announced in late January that she plans to take senior status this summer, thus opening a second vacancy on the court if Restrepo is not confirmed by then, Grassley did not schedule a hearing. And when the Administrative Office of U.S. Courts formally classified the vacancy Restrepo would fill as a judicial emergency in February, Grassley's response was ... nothing.

Pennsylvanians who care about their state's federal courts have been asking where their senators have been all this time, especially Toomey. As a fellow Republican, Toomey surely has Grassley's ear on matters of importance to folks in the Keystone State.

The fact that this nomination has gone for nearly half a year without a hearing says volumes about both Grassley and Toomey. As for saying things about Restrepo, he can best speak for himself, and surely would be pleased to do so, if only Grassley would let him.

PFAW

Judicial Elections and Government Integrity at the Supreme Court

The Supreme Court issued a 5-4 campaign finance ruling this morning. But rather than another Citizens United or McCutcheon, the Court this time upheld a state campaign finance restriction against a First Amendment challenge. In the case of Williams-Yulee v. The Florida Bar, the Roberts Court narrowly upheld Florida's ban on state judicial candidates directly soliciting campaign funds. With the difference of only one vote, even this reasonable limitation would have been struck down.

If only the Court would apply the reasoning of this case outside the narrow area of judicial elections. The Justices acknowledge that a state can reasonably conclude that an appearance of bias and impropriety is created when a judicial candidate directly asks someone to give her a campaign contribution. The Chief Justice wrote that "it is the regrettable but unavoidable appearance that judges who personally ask for money may diminish their integrity."

But that isn't only because they are judges. Any elected official has an obligation to serve the public, whether that is by ruling consistent with the law (like judges do) or pursuing the interests of your constituents and community (as legislators and executives do). That is very different from using that public office to serve the interests of wealthy private interests. When a congressional or presidential candidate wins office due to the financial largess of a small number of extremely wealthy and powerful donors, it just may "diminish their integrity" in the eyes of the public.

It isn't just judges who risk the appearance of corruption when they engage with funders. As we have seen in cases like Citizens United and McCutcheon, Roberts and his conservative colleagues are unwilling to concede that Americans see corruption and the appearance of corruption in the outrageous sums of money being funneled into non-judicial elections.

As for judicial elections (the subject of this case) Justice Ginsburg's concurring opinion is worthy of significant attention. She wrote separately to expound on the "substantial latitude" the Court should give states to regulate judicial campaign finance, and she discussed how much money is now flowing into judicial elections, and the harm that causes to justice:

When the political campaign-finance apparatus is applied to judicial elections, the distinction of judges from politicians dims. Donors, who gain audience and influence through contributions to political campaigns, anticipate that investment in campaigns for judicial office will yield similar returns. Elected judges understand this dynamic. ...

In recent years, moreover, issue-oriented organizations and political action committees have spent millions of dollars opposing the reelection of judges whose decisions do not tow a party line or are alleged to be out of step with public opinion. ...

Similarly portraying judges as belonging to another political branch, huge amounts have been spent on advertisements opposing retention of judges because they rendered unpopular decisions in favor of criminal defendants. ...

Disproportionate spending to influence court judgments threatens both the appearance and actuality of judicial independence. Numerous studies report that the money pressure groups spend on judicial elections "can affect judicial decision-making across a broad range of cases."

The threat to the judicial branch of government in states with high-dollar judicial elections is serious and real.

Today's opinion on judicial elections is an opportunity to focus on the threat to the political branches, as well.

PFAW Foundation

Diversity vs. Scalia at Marriage Oral Arguments

There was a fascinating exchange during oral arguments in the marriage cases this morning that highlighted the importance of having a diverse federal judiciary.

Echoing a right-wing talking point that is utterly without legal merit, Justice Scalia suggested that ministers who oppose marriage equality might be compelled to violate their religious beliefs by marrying same-sex couples. Once the Court rules that the state cannot constitutionally discriminate against same-sex couples seeking to marry, then clergy – who are instruments of the state when they perform a civil marriage – cannot constitutionally decline to marry same-sex couples, Scalia suggested.

I don't see how you could possibly allow that minister to say, I will only marry a man and a woman. I will not marry two men. … I don't see any answer to that. I just don't.

Really??

Fortunately, while Justice Scalia didn't see any answer to that, Justice Kagan was there to inject what should have been an obvious point:

[T]here are many rabbis that will not conduct marriages between Jews and non-Jews, notwithstanding that we have a constitutional prohibition against religious discrimination. And those rabbis get all the powers and privileges of the State, even if they have that rule, many rabbis won't do that.

Yes, Justice Scalia, throughout American history, with marriage limited to opposite-sex couples, clergy have been free to refuse to marry people if doing so violates their religious beliefs, even when discrimination against that couple by the state would be unconstitutional. That will not change just because the religious belief in question is about two men or two women. It's called the First Amendment.

For many American Jews, intermarriage is common among our friends and family, so we are quite familiar with rabbis who choose not to marry mixed-faith couples. Bringing her life experience to the bench, Justice Kagan was able to help ease Justice Scalia's mind.

But it's disconcerting to think that Scalia had to be reminded of this in the first place.

PFAW Foundation

Are Conservative Justices Suggesting that Oppression Justifies More Oppression?

At today's oral arguments in Obergefell v. Hodges (the marriage cases), some Justices expressed concern with concluding that the Constitution prohibits marriage bans when no state allowed same-sex couples to marry until 2003, and that they could not think of a society in history that had allowed same-sex couples to marry.

It seems that gets things backward. It's not like throughout recorded history, gays and lesbians have been treated well but for the itty-bitty fact that we were not allowed to marry the people we loved. In fact, the opposite is true. For much of history, gays and lesbians have been stigmatized, tortured, scorned, cast out, etc. by the governing forces in their societies, both church and state. American society from our founding is far from immune from this indictment.

It is hardly a surprise that societies that suppress a minority don't establish institutions like marriage to take that minority's needs into account.

The absence of marriage equality in much of human history is not a rationale to continue to deny this fundamental right to same-sex couples. Oppression does not warrant continued oppression under the U.S. Constitution's Equal Protection Clause. Exactly the opposite is true: A history of oppression warrants heightened scrutiny of laws that harm the targets of historical oppression.

PFAW Foundation

In Marriage Arguments, Scalia Overlooks the People's Role in Adopting Equal Protection

During oral arguments in Obergefell v. Hodges this morning, Justice Scalia sought to frame the marriage issue as a question of who decides how to define marriage: the people, or the Court?

At one point, he asked how many states have chosen to allow same-sex couples to marry by legislative act or referendum. When the attorney for the couples also mentioned states whose courts have interpreted their state constitutions as requiring marriage equality, Scalia responded:

But ... that's not the people deciding, it's judges deciding.

But those state constitutions, like the federal one Scalia is tasked to interpret, were adopted by the people. And in adopting constitutional guarantees of Equal Protection, the people agreed to impose powerful and permanent limitations on their future lawmaking. The people agreed that they wanted to be held to a higher standard when, then or at some future point, they decide to pass laws harming a particular group. And the people chose to do so by adopting Equal Protection as a general principle, rather than adopting a specific list of who is worthy of protection.

The Supreme Court should rule that denying same-sex couples the right to marry violates the Equal Protection Clause, a promise the people made to themselves and to us when they adopted the 14th Amendment.

PFAW Foundation

Justice Ginsburg Tackles Idea that Marriage Definition Has Existed for Millennia

One of the words being bandied about at this morning's oral arguments in the marriage cases was "millennia." One of the anti-equality side's main talking points is that equality proponents are asking the Justices to "redefine marriage," as if marriage has been static in nature for time immemorial. Justice Kennedy raised this issue early in oral arguments. As reported in the Washington Post:

10:06 a.m.: Justice Anthony M. Kennedy, who is believed to be the deciding vote in this case, quickly jumped in with a question about the long-standing view of marriage as between two members of the opposite sex. "The word that keeps coming back to me is ‘millennia,' " he said.

Same-sex marriage has been legal in the United States for only about a decade, since Massachusetts legalized it in 2006, Kennedy said. "I don't even know how to count the decimals," he said. "This definition has been with us for millennia."

Perhaps no one is better qualified to tackle this aspect of the case than Justice Ginsburg. As live-blogged by SCOTUSBlog:

One seemingly striking moment came when Justice Ginsburg spoke of how it was recent changes to the institution of marriage that made it appropriate for gay and lesbian couples -- in particular, it becoming an egalitarian institution rather than one dominated by the male partners who determined where and how the couple would live.

Indeed, the idea of marriage as the voluntary union of two lawful equals is hardly one that goes back millennia, or even to our nation's founding. For much of American history, women who got married actually lost their civil identities as individuals, being seen in the eyes of the law only as the wives of their husbands, who had all the legal rights. In the 19th century, it was considered a major reform to allow a woman to keep her own property in her own name after she married, rather than having it automatically transfer to her husband. A more recent reform is that a wife is not automatically considered to have given consent to her husband for sexual intercourse.

Marriage as it is practiced in our country is hardly millennia old. Much of what defined marriage in U.S. history would today be struck down as violating the rights of women under the 14th Amendment. When a New York court in the 1980s struck down that state's rape exemption that allowed men to rape their wives, the judge opened his opinion with quotation from John Stuart Mill's 1869 essay The Subjection of Women: "Marriage is the only actual bondage known to our law. There remain no legal slaves, except the mistress of every house."

But the court that struck down the spousal rape exemption more than a century after that was written was not engaged in an illegitimate "redefinition" of marriage. It was simply enforcing the 14th Amendment, as the Supreme Court is being asked to do today.

PFAW Foundation

Grassley Threatening to Shut Down His Minimal Actions on Judges in Mid-2016

According to press reports, Senate Judiciary Chairman Chuck Grassley suggested today at a National Press Club event that the Senate will shut down judicial confirmations in July of next year since it is a presidential election year. CQ reporter John Gramlich tweets:

.@ChuckGrassley on judicial noms: "Come July of 2016, probably they'll be cut off...It's just kind of tradition."

This is awfully rich, coming from the man who has done so much since becoming chairman to ensure that our nation's courts are not adequately staffed. Even though President Obama nominated seven qualified people to the bench back in November, Grassley has allowed only two of them to have hearings. Ranking Democrat Patrick Leahy noted last week that the committee had “not held a hearing on single judicial nomination in more than six weeks and we have several well qualified nominees waiting for a hearing.”

For instance, Eastern Pennsylvania district judge Phil Restrepo was nominated to the Third Circuit back on November 12 with the support of both of his home state senators (Democrat Bob Casey and Republican Pat Toomey), but Grassley has refused to schedule a hearing for him. Other nominees from last November being affirmatively neglected are Dale Drozd (Eastern District of California), LaShann DeArcy Hall and Ann Donnelly (Eastern District of New York), and Travis McDonough (Eastern District of Tennessee).

Once they have their hearings, there are another seven people who were nominated this year who also need consideration, most of whom were nominated back in February.

Even when he allows hearings and schedules a committee vote to advance a circuit or district court nomination to the floor – something that he has allowed only six times this year – Grassley delays the vote without providing a reason.

The backlog that the Iowa senator is deliberately creating is growing.

And now he is talking about shutting down the process next year? You could barely tell he's started the process!

Also, someone ought to remind the Senator what happened during George W. Bush's last year in office. In 2008, the Democratic-controlled Judiciary Committee held hearings for ten of Bush's judicial nominees in September, and all ten were confirmed by the full Senate that same month. In fact, half of those were confirmed just three days after their committee hearing.

Perhaps Chairman Grassley should spend more time processing circuit and district court nominations and less time laying the groundwork for prematurely shutting down the confirmation process altogether.

PFAW

How Big Money In Politics Is Making It Harder For Criminal Defendants To Get A Fair Trial

When the Supreme Court struck down limits on outside spending in elections in the 2010 Citizens United case, critics pointed to a potentially huge public policy impact in issues ranging from environmental protection to tax policy to health care to voting rights.

But one impact of Citizens United has gone without as much public discussion as it deserves: It’s making it harder for criminal defendants to get a fair trial.

Last fall, the American Constitution Society released a report by two Emory University law professors illustrating that the big spending that Citizens United let loose in state judicial elections created a climate in which elected judges were more reluctant to side with defendants in criminal cases.

Joanna Shepherd and Michael S. Kang found that outside groups seeking to influence judicial elections — usually for reasons unrelated to criminal justice policy — often relied on “Willie Horton” style attack ads implying that targeted judges were “soft on crime.” The proliferation of outside spending and the attack ads that the spending bought, they found, correlated with a decrease in the frequency with which elected state appellate judges ruled in favor of defendants in criminal cases.

“Unlimited independent spending is associated with, on average, a seven percent decrease in justices’ voting in favor of criminal defendants,” they wrote. “That is, the results predict that, after Citizens United, justices would vote differently and against criminal defendants in 7 out of 100 cases.”

Shepherd discussed her findings yesterday at a panel convened by ACS, along with retired Montana Supreme Court Justice James Nelson, the National Association of Criminal Defense Lawyers’ Norman Reimer and Tanya Clay House of the Lawyers’ Committee for Civil Rights Under Law.

Nelson, who was on the Montana Supreme Court when it famously ruled that Citizens United didn't apply to that state's unique history of corruption (Nelson dissented, saying the high court’s ruling applied to Montana, but took the opportunity to demolish the decision while he was at it), said he had lived first-hand the impact of big money in judicial races.

“The fact of the matter is that is when justices running for political office are attacked during their campaigns, it forces them to look over their shoulder constantly,” he said. “And I can tell you that from personal experience. You have to fight to make yourself vote the way the law requires you to vote. And most judges do. But it’s in these marginal cases where there’s a close call and perhaps the case should go to a defendant, it doesn’t go to the defendant.”

The groups spending money on judicial attack ads, he said, “really don’t give a damn about defendants’ rights. They really don’t care. What they want to do is to get somebody onto a court who marches in lockstep with their philosophy, or get somebody off the court that does not march in lockstep with their philosophy.”

Reimer sounded a similar note: “The fight is really about commercial interests. It’s usually about the plaintiffs’ bar versus the corporate interests, the unions, the conservatives. It’s about nothing to do with criminal justice. But because of the fear factor, that’s where you go after somebody.”

“I think we all need to understand and appreciate what’s really at risk here,” Nelson said. “And what’s really at risk is the fair, independent and impartial judicial system that most citizens in this country, and I think most lawyers in this country, simply take for granted. And if the dark money flows from Super PACS and the Koch brothers and RSLC and groups like them get control of the judiciary … That’s what this is all about: getting control of the third branch of government. If they get control of that third branch by spending their way to the top, then we’re going to lose that fair, impartial and independent judiciary that we’ve all come to expect and rely upon. Certainly criminal defendants are going to suffer immeasurably.”

Clay House pointed out that there is already “a different perception of the criminal justice system and judiciary among communities of color.” Pew found in 2013 that 68 percent of black Americans said they were “treated less fairly than whites” in the courts, while the majority of whites were oblivious to racial disparities in the criminal justice system.

Unchecked spending in judicial elections, the evidence shows, may be making that perception, and the reality, even worse.

PFAW