Supreme Court Sends Alabama Racial Gerrymandering Case Back to Lower Court

The Supreme Court issued a 5-4 ruling yesterday disagreeing with a lower court that had upheld Alabama's racially gerrymandered state legislative redistricting. The cases are Alabama Democratic Conference v. Alabama and Alabama Legislative Black Caucus v. Alabama.

As we discussed in our Term Preview, the Republican-controlled Alabama legislature enacted a state redistricting plan after the 2010 Census that transferred a significant portion of the black population that had previously been in majority-white districts into districts that were already majority-black, a process some have called bleaching. (This plan was adopted while Alabama was still subject to the preclearance provisions of Section 5 of the Voting Rights Act, before Shelby County v. Holder.) Ostensibly to comply with the requirement under Section 5 that new lines not lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise, legislators decided that the African American percentages in the redrawn majority-minority districts had to be at least whatever they had become before redistricting. So if a district that was (say) 65% African American in 2002 had become 75% African American by 2010, the new lines had to keep the district at least 75% African American.

Because of population shifts over the past decade and a decision to minimize population differences among districts, this policy meant that African Americans in majority-white districts were redistricted into majority- and supermajority-black districts.

The Alabama Legislative Black Caucus and the Alabama Democratic Conference argued that legislators had misinterpreted Section 5, that race was impermissibly the overriding criterion used by legislators in drawing lines, and that the redistricting plan violated the Fourteenth Amendment. But a special three-judge district court had upheld the redistricting, ruling that (1) minimizing population differences among districts, and not race, was the predominant factor in drawing the lines, so strict scrutiny didn't apply; and (2) even if strict scrutiny applied, the boundaries were narrowly tailored to achieve the compelling purpose of compliance with the preclearance provisions of Section 5 (which was in force then).

In an opinion written by Justice Breyer and joined by the other moderates plus Justice Kennedy, the Supreme Court repudiated the lower court, sending the case back so certain districts can be reanalyzed under the proper standards to determine if they are racially discriminatory. They held that Alabama can't avoid an analysis of whether race was the predominant factor by pointing to its desire to have population balance among districts:

[I]f the legislature must place 1,000 or so additional voters in a particular district in order to achieve an equal population goal, the "predominance" question concerns which voters the legislature decides to choose, and specifically whether the legislature predominately uses race as opposed to other, "traditional" factors when doing so.

Another key part of the ruling was the discussion of Section 5, which the Court made clear does not require a covered jurisdiction to maintain a particular numerical minority percentage. Instead, it requires the jurisdiction to maintain a minority's ability to elect a preferred candidate of choice.

The state's Section 5 rationale seemed like a stretch designed to justify a redistricting process that some have called "bleaching." Yesterday's ruling will ensure that no one grasps for that particular straw again in an effort to cover up racial gerrymandering. (This assumes, of course, that Congress eventually restores Section 5's efficacy by adopting a new formula for coverage, since the Roberts Court struck down the existing formula in the infamous 5-4 Shelby County ruling.) The case is also important because the dissent by the four most right-wing Justices, which was only one vote from becoming the majority opinion, would have allowed the Alabama legislature in this case to use race in drawing districts in a way that would harm minority voters.

PFAW Foundation

PFAW Member Telebriefing: Preview of Upcoming PFAW Foundation Report, The Supreme Court in the Citizens United Era

Yesterday, PFAW Foundation Senior Fellow Jamie Raskin previewed his upcoming report, The Supreme Court in the Citizens United Era, during a member telebriefing. Executive Vice President Marge Baker and Senior Legislative Counsel Paul Gordon also joined the call to answer questions from members and discuss PFAW efforts to promote fair and just courts. Drew Courtney, Director of Communications for PFAW, moderated.

To kick off the call, Raskin reviewed another period during which the Court granted unprecedented constitutional rights to corporations. Lochner v. NY, Raskin explained, began an era in which government at every level was prevented from interfering with corporate contracts—and thereby prevented from passing sensible health and safety regulations.

Today, said Raskin, we’re in an analogous period, with the Supreme Court now using the First Amendment as an excuse for expanding or inventing the political and religious rights of corporations. This time, it’s beyond what we’ve ever seen before; the Citizens United and the Hobby Lobby cases both demonstrate how the Court is putting the interests of corporations over the rights of people and making it more difficult to hold corporations accountable for their actions. Other cases allow corporations to insulate themselves through a host of legal immunities while at the same time, they’re able to spend unlimited amounts of money  influencing who gets elected to office.

In responding to a question from a PFAW member, Baker outlined the two key ways to fight the Court’s trend of empowering corporations over people: Elect Presidents who will nominate, and Senators who will confirm, Justices who share the ideology that corporations shouldn’t be favored in their legal rights over people; and amend the Constitution, which PFAW and other groups are working on now. She also directed PFAW members to www.united4thepeople.org and www.getmoneyoutaction.org to get more involved in these issues.

You can listen to the full telebriefing here:

PFAW Foundation

Peggy Young Will Get Her Day in Court

There's good news in the Supreme Court ruling in Peggy Young v. UPS, a case we discussed in our Term Preview and also blogged about after oral arguments. That's the case where UPS refused to give light duty to a pregnant employee who was under doctor's orders not to lift heavy packages, even though they gave light duty to other employees with similar lifting restrictions (those injured on the job, those who'd lost their DOT driving certification, and those with permanent disabilities).

The Court ruled in favor of Young in a five-Justice opinion written by Justice Breyer and joined by Justices Ginsburg, Sotomayor, Kagan, and Chief Justice Roberts. (Justice Alito concurred in the result but didn't join the majority opinion.) It's an important victory for Peggy Young individually and for women across the country, since it shuts down corporate efforts to make it much easier to discriminate against pregnant workers.

The Pregnancy Discrimination Act (PDA), passed in 1978, says that pregnancy discrimination is a form of illegal sex discrimination. Congress had to make this explicit after the Supreme Court ruled otherwise in a 1976 case. But that isn't all the PDA says. It also has a second provision: women affected by pregnancy "shall be treated the same for all employment-related purposes … as other persons not so affected but similar in their ability or inability to work."

The Court rejected UPS's extremely restrictive reading of the law. The corporation had argued that it hadn't discriminated on the basis of pregnancy because they were treating Young the same way they'd have treated a non-pregnant employee whose restrictions weren't caused by an on-the-job injury or other category. As Peggy Young learned the hard way when the lower courts ruled in favor of UPS without a trial, this made it much too easy for employers to force an employee to choose between her pregnancy and her job.

But the Supreme Court majority also rejected Young's reading of the law, where she would not have needed to show any intent to discriminate. Instead, the majority said that women in Young's situation – women asserting disparate treatment but without direct evidence of discriminatory intent – have to do more than show that they are being treated differently than workers with similar restrictions on their ability to work. Once they demonstrate the disparate treatment, the employer has a chance to offer up legitimate, non-discriminatory reasons for their policy ("saving money" doesn't count). Then it's up to the employee to convince a jury that those reasons are just a pretext. This is the same framework used in other types of Title VII disparate treatment cases, and it can create a hurdle that can be hard for victims of discrimination to overcome.

So this was not the complete victory Young sought, but it is still a victory, because it vacated the lower court and gives her a chance to make her case.

In a brief paragraph, the majority noted that the law has changed since Young's pregnancy, to the benefit of women like her. Specifically, Congress modified the Americans with Disabilities Act in 2008 to specify that impairments that limit your ability to lift, stand, or bend are disabilities under the law, thereby presenting legal options to women that were unavailable to Young. In addition, EEOC rules require employers to accommodate temporary lifting restrictions that originate off the job.

Not mentioned by the Court (appropriately enough, since it isn't the law) is a bill in Congress supported by a number of progressives – including our affiliate PFAW – called the Pregnant Workers Fairness Act. This would make clear that employers are required to make reasonable accommodations to pregnant employees.

The Court's ruling could have severely restricted women's rights under the Pregnancy Discrimination Act. Fortunately, the Court did not accept the misinterpretation of the law that would have benefited corporate interests at the expense of women everywhere.

PFAW Foundation

Wisconsin Voter ID Reminds Us of the Importance of Circuit Courts

The Supreme Court this morning denied a request to review the Seventh Circuit's decision to uphold Wisconsin's strict voter ID law. This case shows just how important fair and just courts are to protecting our most important rights, and the consequences of Republican efforts to prevent President Obama from filling circuit court vacancies.

Last spring, a federal district court struck the law down, recognizing that it would have a discriminatory impact on African Americans and Latinos, and that "it is absolutely clear that [it] will prevent more legitimate votes from being cast than fraudulent votes." Of course, that is no surprise, since that is the unstated purpose of these laws. Fortunately, when Wisconsinites recognized that their rights were being violated, a federal judge was able to make sure that partisan efforts to suppress the vote were not able to overcome our laws protecting the right to vote.

Unfortunately, this decision was reversed by a Seventh Circuit panel consisting of conservative judges nominated by Presidents Reagan and George W. Bush. When the entire circuit was asked to review the panel decision, they split 5-5, just one vote short of preventing those rules from going into effect.

One judge could have really made a difference. And it just so happens that Wisconsin Sen. Ron Johnson has blocked efforts to fill a longtime vacancy on that court for more than four years, since the day he took office after the 2010 elections. Make no mistake: Johnson and his fellow Republicans preventing President Obama from putting judges on the bench know full well how important the federal courts are, especially the circuit courts.

In fact, the Seventh Circuit is not the only one with a long-unfilled vacancy. Republican senators from Texas, Kentucky, and Alabama have also been blocking President Obama's efforts to nominate highly qualified jurists to fill longtime vacancies on the Fifth, Sixth, and Eleventh Circuits. As we have written:

[N]o senator should see President Obama's outreach as an opportunity to coerce him into naming an unacceptable far-right nominee. Keeping the judgeship vacant even longer in the hopes that a future (hopefully Republican) president will fill it is not a reasonable option, serving only to make justice less available to those who need it most. At some point, such senators have two choices. They can agree with the White House on someone everyone can support. Alternatively, they should acknowledge the extensive consultations that occurred and present any concerns about the eventual nominee in public before the Judiciary Committee, where the nominee has a chance to respond.

Either way, Republican senators cannot be allowed to indefinitely prevent anyone from being nominated to fill longtime judicial vacancies.

PFAW

GOP's Delay for Loretta Lynch Gets More Ridiculous By the Day

If anyone had said four months ago that we’d still be waiting for the Senate to hold a confirmation vote for Loretta Lynch, no one would have believed it.  Yet here we are.  Although she was approved by the Judiciary Committee three weeks ago, Mitch McConnell just can’t bring himself to schedule a floor vote for her.

Lynch is supremely qualified to be AG.  Progressives and conservatives alike have written to the Senate praising Lynch and urging her confirmation.  In fact, not a single one of the Republicans’ own witnesses at her confirmation hearing actually opposed her confirmation.

Yet Republicans in the Senate continue to make a partisan brawl out of a consensus nomination.

Until now, regardless of which party was in the White House or in control of the Senate, the attorney general nominee has gotten a confirmation vote very quickly upon committee approval.  But Lynch’s nomination has been languishing on the Senate floor for nearly three weeks, longer than the wait-time for the past five attorney general nominees combined.

McConnell has jettisoned his promise to allow a vote this week.  At the beginning of next week, Lynch will have been waiting for a floor vote as long as the previous seven attorneys general combined:

Click chart for larger image.
Chart: Loretta Lynch vs. other attorney general confirmations

McConnell’s latest excuse for delay is that the Senate needs to vote on a human trafficking bill first … a bipartisan bill that Republicans politicized by inserting an anti-choice provision.

The Lynch nomination was a great opportunity for Republicans to show the American people that they can govern.  Instead, they’ve shown the American people that they won’t pass up any opportunity to play politics, as they pile unheard-of delay after delay on the person who should already have been confirmed as our nation’s first African American woman attorney general.

PFAW

Why Only Two Judges for Hearings This Week?

Good news: For the first time since January, the Senate Judiciary Committee is allowing a hearing on judicial nominations. The bad news: Although seven nominees have been waiting since last November, Chairman Chuck Grassley is only allowing a hearing for two of them.

That's right … although the number of circuit and district court vacancies has increased from 39 to 51 since the beginning of the year, and even though the number of judicial emergencies has jumped from 12 to 22 in that time, and even though there are numerous nominees who could have a hearing this week, all but two of them will have to keep waiting.

Roseann Ketchmark would serve in the Western District of Missouri, and Kara Farnandez Stoll would serve in the Federal Circuit. For those whose legal rights are protected by those courts, tomorrow's hearing is good news.

But why only two nominees on the agenda? Dale Drozd would fill a judicial emergency in California's Eastern District. LaShann DeArcy Hall and Ann Donnelly would serve in New York's Eastern District. Travis McDonough has been nominated for a seat in Tennessee's Eastern District. And L. Felipe Restrepo would fill a judicial emergency on the Third Circuit, where a second vacancy will be opening up in July.  They all have to wait.

This fast-as-molasses action from the Judiciary Committee stands in stark contrast to how the Democratic Senate processed George W. Bush's nominees in the last two years of his presidency. The Senate confirmed 68 circuit and district court nominees during that time, slashing the number of vacancies from 56 at the start of 2007 to as low as 34 in the fall of 2008.

The current Senate should match that dedication to processing judicial nominations. For that to happen, the Judiciary Committee needs to let nominees have timely hearings.

PFAW

McConnell Should Let Senate Confirm Judges

Majority Leader Mitch McConnell has yet to schedule a confirmation vote on the four district court nominees who cleared the Judiciary Committee without opposition nearly two weeks ago: Jill Parrish for the District of Utah, and Alfred Bennett, George Hanks, and Jose Rolando Olvera for the Southern District of Texas.

Texas in particular is in desperate need of more federal judges. The Lone Star State has a shocking 11 judicial seats currently vacant (with a twelfth one opening this spring). In fact, the eleventh vacancy opened just today. This opening came as no surprise: Judge Richard Schell of the Eastern District announced back in January of 2014 that he would be taking senior status. Texas Sens. Cornyn and Cruz could have recommended an acceptable nominee to the White House in time for that person to have been fully vetted, nominated, and confirmed last year. Unfortunately, that did not happen; no nomination has been made yet.

Of those eleven vacancies, seven have been designated judicial emergencies. That's nearly one third of all the judicial emergencies nationwide. Confirming the three Texas nominees who have been waiting for Senator McConnell to schedule a floor vote would help alleviate this problem.

All three would serve in the Southern District of Texas, which will still have an additional two vacancies remaining even after these nominees are confirmed. McConnell's delay is adding unnecessarily to the strain on the area's federal court system.

Just how bad is that strain? The Judicial Conference of the United States has asked Congress to create an additional two judgeships in the Southern District of Texas. In other words, even if all three pending nominees were confirmed today, and the other two vacancies were magically filled tomorrow (even though they don't have nominees), the crushing caseload burden on the Southern District is so bad that at least another two judges would be needed to ensure that the people of Texas have access to a fair and efficient federal court system.

A confirmation vote on the Texas (and Utah) nominees is long overdue.

PFAW

GOP Senate Moving Obama's Judges Slower than Democrats Moved Bush's

Two months into the new 114th Congress, it's a good time to take stock of how the Republican-controlled Senate is doing when it comes to processing circuit and district court judicial nominations. So far, the Judiciary Committee has held only one hearing to consider such nominations, and that was back in January. And even though no one questioned the four nominees' qualifications, Chairman Grassley delayed a scheduled vote by two weeks without offering an explanation, so it took the committee more than five weeks after their hearing to finally advance them to the floor. No further hearings have been held (but one has been announced for next week).

As we have written before, a key metric for comparing how the Senate is doing in Obama's last two years is how the newly-Democratic Senate handled George W. Bush's nominees in the last two years of his presidency. The Judiciary Committee under Chairman Patrick Leahy was very busy during the first two months of the 110th Congress. There were numerous nominees from the previous Congress approved by the GOP-controlled Judiciary Committee but left unconfirmed at the end of 2006. Rather than force them into new hearings for the benefit of the new committee members, Chairman Leahy arranged for quick votes instead. By this point in 2007, the committee had advanced ten such judicial nominees directly to the full Senate. Eight of them were already confirmed by the full Senate by mid-February. (The remaining two were confirmed on March 8.)

In addition to re-vetting and voting on these ten returning judicial nominees, the Judiciary Committee had also fully processed three first-time nominees by this point in 2007, with hearings quickly followed by committee votes just 3½ weeks later. (All three were confirmed by the end of March.)

In Bush's last two years, the Senate confirmed 68 circuit and district court nominees, slashing the number of vacancies from 56 at the start of 2007 to as low as 34 in the fall of 2008. Today's Republican Senate has confirmed no nominees so far this year. In the meantime, the number of current vacancies has climbed from 39 at the beginning of the year to 47 today, and the number of judicial emergencies has jumped from 12 to 21.

As noted above, the Judiciary Committee has said it will hold a nominations hearing next week. Considering that there are seven circuit and district court nominees who were nominated back in November, they should all have hearings as soon as possible.

PFAW

More Delay on the Restrepo Nomination

Qualified jurists nominated for federal judgeships way back in November are still waiting to have a committee hearing scheduled. They include Kara Farnandez Stoll, who would be the first woman of color on the Federal Circuit, and L. Felipe Restrepo of Pennsylvania, who would be the first judge on the Third Circuit with experience as a public defender. The Third Circuit vacancy has been designated a judicial emergency, and with another vacancy on that court opening on July 1, it is even more important not to keep delaying Restrepo's already overdue hearing.

Yet a Grassley spokeswoman told The Legal Intelligencer (subscription required) that she "couldn't even estimate" a timeframe for Restrepo's hearing. Apparently, that's because the committee is also working on other nominations. She said that processing the Loretta Lynch attorney general nomination had required "all hands on deck," and that the committee was also preparing for the deputy attorney general nomination of Sally Yates.

Surely the committee is capable of handling both executive and judicial nominations.

A comparison to the Bush era is instructive, when the Democratic Judiciary Committee considered Michael Mukasey's nomination to be attorney general. The committee received Mukasey's nomination on September 21, 2007, held hearings, and advanced him to the full Senate on November 6. During that time, the committee was able to hold confirmation hearings on six judicial nominees and advance two to the full Senate. It was also able to advance an additional four judicial nominees the week after voting on Mukasey.

Fast-forward to now, a week after Lynch was advanced to the full Senate. The Judiciary Committee hasn't held a hearing for circuit or district court nominees since January 21, a week before the Lynch hearing. In the meantime, the number of current vacancies has climbed from 39 at the beginning of the year to 47 today, and the number of judicial emergencies has jumped from 12 to 21.

Hearings for Judge Restrepo and other judicial nominees are long overdue.

PFAW

Republican Inaction as Judicial Emergencies Jump

Yesterday we blogged about how the Senate Judiciary Committee and Chairman Chuck Grassley ought to move judicial nominations next week when they return from recess. We noted that the number of vacancies has increased from 39 at the end of last year's lame duck session to 46 today, with fourteen of those officially designated as judicial emergencies.

Well, we've had developments since yesterday's post. First, next week's committee schedule is up, and no hearings have been announced for judicial nominees.

And secondly, the Administrative Office of U.S. Courts this morning designated an additional five vacancies as judicial emergencies, so the total has jumped from 14 to 19.

These new emergencies include one in the Northern District of Texas, which has been vacant since July of 2013 and which had been announced in advance in April of that year. Yet it was not until last July that Sens. Cornyn and Cruz announced a process to identify Northern District recommendations to the White House. Perhaps if they had not waited more than a year after being notified of this vacancy, it would be filled today. Instead, there is no nominee yet, and a vacancy that should not still exist is instead a judicial emergency.

Texas now has seven judicial emergencies, more than a third of the national total. Two of them have nominees who should have advanced to the Senate floor last week, but were delayed when Republicans decided to delay the scheduled committee vote on four fully vetted district court nominees by two weeks simply because they could.

Another of the newly designated emergencies is in the Third Circuit. The good news is that district court judge L. Felipe Restrepo was nominated to fill this seat way back in November, and that he has the enthusiastic support of his home state senators, Democrat Bob Casey and Republican Pat Toomey. The bad news is that Chairman Grassley continues not to schedule a hearing for this highly qualified nominee (or any other). With this vacancy now a judicial emergency and a second vacancy on the circuit opening in July, the decision to slow-walk this nomination is even more harmful.

So as of today, the number of judicial emergencies has jumped from 12 at the beginning of the year to 19 today. Senate Republicans can and should do much more to get that number moving back down.

PFAW