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

Republicans Should Move Judicial Nominations Next Week

With the Republican-controlled Senate returning to town next week, one of the things they should turn their attention to is moving judicial nominations. Because vacancies are always opening up on the courts, the Senate has to confirm a number of judges just to keep even. So far in the 114th Congress, we are not keeping even.

When the lame duck session of Congress ended in mid-December, there were 39 vacancies on our nation's federal circuit and district courts. Today there are 46 vacancies, 14 of them officially designated as judicial emergencies. Another five district court judges will be stepping down in just the next three weeks.

Even taking into account that the committee has also been handling the Attorney General nomination, we could and should have seen more progress on judges by now. There has been only one judicial nominations hearing, back in January, and the four Utah and Texas district court nominees who have now been fully vetted were scheduled for a committee vote last week. This was actually a critical test for the GOP, since it was their first chance to show that they would not continue to engage in the practice of needlessly delaying committee votes on judicial nominees just because they can. Unfortunately, they failed, holding the nominees over for two weeks on the basis that it was their first time on the agenda (in other words, they delayed the vote because they could).

When senators come back to town next week, the Judiciary Committee should vote these four nominees out, and the full Senate should promptly hold a confirmation vote.

It is also past time to hold hearings for people who were nominated more than three months ago, like Third Circuit nominee L. Felipe Restrepo (nominated November 12). Already a judge in the Eastern District of Pennsylvania, Restrepo has the bipartisan support of home state senators Bob Casey and Pat Toomey. He would be the first judge on the Third Circuit with experience as a public defender, as well as the first Latino judge from Pennsylvania on the Third Circuit. There is no reason to delay a hearing for him or other long-waiting nominees.

To judge how the Republican Senate is doing, a convenient basis of comparison is the Democratic Senate during George W. Bush's last two years. As we noted when discussing the remarkable success in confirming judges in 2014:

The Bush example is particularly instructive. At the beginning of 2007, 56 judgeships were vacant. Rather than taking advantage of their new majority as a result of the 2006 elections to allow vacancies to build up, Senate Democrats made sure to process Bush's nominees in a fair and timely manner. ... Throughout the 110th Congress of 2007-2008, the number of vacancies generally remained at 50 or fewer. The Senate confirmed 68 judges during those two years, getting the number of vacancies down to as low as 34 in the early fall of 2008.

So keep an eye on how many judicial vacancies there are and whether that number goes up or down. That will be a good indication of whether Republicans are working in good faith to keep America's judicial system effectively staffed, or whether they are instead deliberately allowing vacancies to build up.

 

PFAW

Thursday is Test Day for Senate Judiciary Republicans

Tomorrow morning, we will learn more about how Chairman Chuck Grassley will run the Senate Judiciary Committee ... and whether Republicans will continue one of the indefensible forms of obstruction that they engaged in for six years while in the minority.

Grassley has scheduled a meeting for tomorrow with key votes on the agenda. They include four district court nominees from Texas and Utah, the first ones fully processed by the committee under its new Republican leadership.

The question is whether the committee will be allowed to vote on any of these nominees. Committee rules let senators "hold over" (i.e., delay) committee votes without explanation. This was done during previous presidencies when a nominee was controversial or when senators needed more time to evaluate the nominee. But during the first six years of the Obama presidency, Republicans exercised this right for all but 12 of his judicial nominees, which was an unprecedented abuse of the rules. 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 that was when Republicans were in the minority. It's one thing to always demand a delay when you're never the one to have scheduled the votes. It would be another thing altogether for Republicans to routinely ask for delay when they're the ones putting people on the schedule in the first place. Tomorrow's action may tell us what to expect for the next two years.

Two of the Texas nominees would fill vacancies that have been officially designated as judicial emergencies by the Administrative Office of U.S. Courts. One has been vacant just short of two years, and the other has been vacant since the end of 2012. (The other Texas seat has been vacant for "only" eight months, while the Utah one has been vacant for over a year.)

As for the nominees themselves, all four have the strong support of their home state senators, which is not unusual. But in this case, each of those home state senators is a Republican who is on the Judiciary Committee.

So will Sens. Cornyn, Cruz, Hatch, and Lee sit there and say nothing tomorrow if a vote on their nominees is delayed for no reason? Will Sen. Grassley start his chairmanship by insisting that committee votes be delayed even when he's the one to have scheduled them in the first place?

Tune in tomorrow.

UPDATE:  Thursday morning, Grassley held the nominees over, on the basis that it was their first time on the agenda.  In other words, "because we can."

PFAW

A Victory in the Fight for Fair Trials for Undocumented Immigrants

In an important victory for fair courts and the principle that justice is available to all, an appeals court in California today issued a decision granting a new trial for an undocumented immigrant whose immigration status was revealed to jurors despite its irrelevance to the issues in the case. People For the American Way had joined the UC Hastings Appellate Project and the ACLU of Southern California in submitting an amicus brief in the case, Velasquez v. Centrome, Inc. dba Advanced Biotech.

In this case, a former factory worker named Wilfredo Velasquez sued Advanced Biotech, Inc. for its alleged failure to tell his employer about the harms of a chemical he was exposed to while on the job — exposure which he says led to a devastating lung disease. But during the jury selection, the trial judge revealed to jurors that Velasquez was undocumented, an action that, in the words of our amicus brief, “unnecessarily injected prejudice into the selection process, making it impossible to know whether Mr. Velasquez received his constitutionally guaranteed fair trial by impartial jurors.” The threat to Velasquez’s right to a fair trial became clear when the jury concluded that Advanced Biotech had indeed been negligent — yet still awarded no damages to Velasquez, meaning that he, in effect, lost his case.

Fortunately, today the appeals court righted this wrong by granting Velasquez a new trial. The state appeals court noted that “cases both in California and in multiple other jurisdictions have recognized the strong danger of prejudice attendant with the disclosure of a party’s status as an undocumented immigrant.”  Indeed, we have seen how undocumented immigrants face ongoing hostility in our country.

As the amicus brief notes, every person, regardless of immigration status, has a right to “a verdict rendered by an impartial jury.” It is a right that must remain a foundational principle of our judicial system.
 

PFAW

PFAW Foundation Joins Amicus Brief in SCOTUS Case on Health Care Tax Subsidies

Yesterday PFAW Foundation joined the National Women’s Law Center, the law firm Hogan Lovells, and close to 70 other organizations in submitting an amicus brief in King v. Burwell, the pending Supreme Court case on tax subsidies for the Affordable Care Act (ACA). The brief notes that a decision in favor of those challenging the subsidies would threaten a central goal of the law: making access to health insurance possible for millions of people across the country.

The ramifications of a wrong decision in this case could be enormous, causing serious harm in the lives of people now relying on health insurance through the ACA. If the core tax subsidy provision were to be struck down, the brief points out, women of color would be especially hard-hit:

These tax credits are critical. Over 9 million women, who would otherwise go without affordable health insurance, are eligible to benefit from them, including a disproportionate number of women of color.

…The tax credits are not only critical to women’s health; they are critical to the ACA’s continued viability. Congress encouraged participation in the insurance market primarily through the careful interrelation of the individual responsibility provision, market reforms, and tax-credit provisions. Eliminate the tax credits, and the system unravels.

The amicus brief highlights the stories of many real women who depend on the tax credits to access needed health care:

Marilyn Schramm, 63, is a 26-year cancer survivor from Austin, Texas. She endured treatment for cervical cancer in her thirties and has experienced life-long complications from that treatment that have required surgeries since then. Marilyn retired several years ago. When her COBRA rights were exhausted, Marilyn was forced to go without insurance for six months because of her “preexisting conditions.” But in January 2014, Marilyn could finally purchase insurance on the federally-facilitated Exchange in Texas, with at least half of her premium covered by the ACA’s tax credits.

Marilyn has now been diagnosed with colon cancer; following surgery, she began chemotherapy this month. Her coverage depends on the ACA’s prohibition on excluding those with pre-existing conditions, and on its premium tax credits: With her modest retirement income, Marilyn is unsure whether or how she could pay her insurance premium without the tax credits.

As we have noted before, this case is a blatantly political attack intended to do serious damage to the Affordable Care Act. The millions of women and men across the country who rely on the ACA in order to access health care ranging from preventative screenings to cancer treatments deserve far better.

PFAW Foundation

Ginsburg Concurrence Is an Important Reminder on Religious Liberty

The Supreme Court issued a unanimous ruling in Holt v. Hobbs yesterday upholding the religious liberty claim of a Muslim prisoner who was prohibited by corrections officials from growing a half-inch beard. As noted in our Supreme Court term preview of Holt v. Hobbs, the case involves a federal law called the Religious Land Use and Institutionalized Persons Act, or RLUIPA.

Similar to the better-known Religious Freedom Restoration Act (RFRA), which was at issue in Burwell v. Hobby Lobby, RLUIPA is triggered when the government imposes a "substantial burden on the religious exercise" of a person confined to an institution. When that happens, the action can be upheld only if the government can demonstrate that the burden: "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest."

In this case, especially since so many other prisons around the country allow inmates to grow half-inch beards without a security problem, few expected the prison system would win this case. And it didn't. The Court's ruling was written by Justice Alito, author of the Hobby Lobby opinion, and all the other Justices signed on.

Importantly, while Justice Ginsburg – the author of the Hobby Lobby dissent – joined the Court's opinion, she also wrote a separate concurrence to emphasize a critically important point. In its entirety, it reads:

Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc., accommodating petitioner's religious belief in this case would not detrimentally affect others who do not share petitioner's belief. On that understanding, I join the Court's opinion. [internal citations removed]

The removed internal citations are to her Hobby Lobby dissent's discussion of how religious liberty has always been recognized as a shield to protect people's rights, not as a sword to deny others' rights. Fortunately, Holt v. Hobbs did not present an opportunity for the narrow five-person majority to continue their project, begun in Hobby Lobby, to wholly transform the concept of religious liberty. But Justice Ginsburg (joined by Justice Sotomayor) was right to remind us of the traditional meaning of that phrase in American society and law.

PFAW Foundation

Roberts Court Sets Its Eye on Fair Housing Law

Wednesday morning, the Supreme Court will hear oral arguments in a case that is being heard only because of the ideological zeal of its conservative Justices. In the case of Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, the Court is being asked to severely undermine the Fair Housing Act.

Actually, it would be more accurate to say that the Roberts Court's right-wing majority has asked conservatives to send them a case giving them a chance to undermine the FHA, one of the most critically important tools we have to eradicate systemic discrimination in housing. Congress passed the law in 1968 in order to address obstacles to equal housing such as insurance redlining, discriminatory zoning ordinances, and unfair mortgage lending practices.

Under the FHA, a practice that has an unjustified discriminatory impact – even if you can't prove a discriminatory purpose – can be judged to violate the law. This is called "disparate impact." All 11 circuits to have considered the question carefully analyzed the text of the Fair Housing Act and agreed that disparate impact cases are covered under the law. These cases go back to the 1970s and 1980s, and Congress has never amended the law to say otherwise. The Department of Housing and Urban Development (HUD) also interprets the law that way.

But conservatives have long been hostile to the idea of "disparate impact" anti-discrimination laws, whether in housing or elsewhere. This is a policy debate they have not been able to win in Congress, but they are hopeful that five right-wing Justices will change the Act for them.

That optimism stems from the fact that this isn't the first time the question has been before the Court. Despite the unanimity among the eleven circuit courts to address the issue, the Roberts Court in 2011 granted certiorari to a petitioner asking them to overturn the national consensus on the law. However, the parties in Magner v. Gallagher settled, meaning there was no longer any case for the Supreme Court to consider. The Roberts Court granted certiorari to a similar petition in 2013 (Mt. Holly v. Mt. Holly Citizens in Action), but that case, too, was settled before the Court could hear oral arguments.

In fact, HUD acted in 2013 in a way that makes the legal argument in support of disparate impact even stronger. While the circuit courts were uniform in their recognition that the FHA prohibits policies and practices with a discriminatory impact, they did not all agree on the same process the law requires lower courts to follow in disparate impact cases. So HUD adopted regulations interpreting the FHA and answering that question. Under Supreme Court precedent, the courts are supposed to defer to reasonable statutory interpretations by the agencies Congress has charged with enforcing those statutes, even if the judge would have interpreted the law differently. So HUD's new regulations make the argument against disparate impact even weaker.

Nevertheless, few were surprised in October of last year when the Roberts Court granted certiorari to yet another petitioner asking the Justices to eliminate the ability to target housing practices with an unjustified discriminatory effect. This is clearly an issue that at least four Justices (the number required to grant certiorari) are hungry to decide. They have a vision of what our nation's fair housing laws should look like, and they are set on turning that vision into reality.

Whether they have a majority is something we don't know yet. But we do know that the Court's decision (expected by the end of June) will have an enormous impact on whether we as a nation will be able to effectively confront and eliminate discrimination in housing.

PFAW Foundation

Sorry, Sen. McConnell, But on Judges, Your Party IS "Scary"

In a recent interview with the Washington Post, incoming Senate Majority Leader Mitch McConnell says his strategy for the next two years is to make sure the Republican-controlled Congress doesn't scare Americans so much that they elect a Democrat for president in 2016. That means trying to sideline the likes of Ted Cruz and others who command the loyalty and enthusiasm of the GOP base.

"I don't want the American people to think that if they add a Republican president to a Republican Congress, that's going to be a scary outcome. I want the American people to be comfortable with the fact that the Republican House and Senate is a responsible, right-of-center, governing majority," the Kentucky Republican said in a broad interview just before Christmas in his Capitol office.

...

"There would be nothing frightening about adding a Republican president to that governing majority," McConnell said, explaining how he wants voters to view the party on the eve of the 2016 election.

Put aside for the moment what it tells you about the current GOP's extremism that the party's Senate leader recognizes that it frightens the American people.

Instead, focus on what McConnell and the Washington Post article left out of the mix: judges. It isn't hard to know what kind of judges we would get if Republicans controlled the White and House and the Senate. All we have to do is look to the last time that happened, during the George W. Bush presidency. At the Supreme Court, the GOP gave us John Roberts and Samuel Alito, who in turn gave us 5-4 rulings in cases like Citizens United and Hobby Lobby. Bush and the Republican Senate also filled the nation's appeals courts with right-wing ideologues like Janice Rogers Brown (who defended the ideology of the Lochner era in a 2012 opinion).

And this was before the Tea Party drove the party even further rightward than it was in the Bush era. Just imagine the impact that Tea Party judges with the Mike Lee and Ted Cruz stamp of approval would have on our laws, our rights, and our country.

PFAW

Fourth Circuit Strikes Down North Carolina Ultrasound Law

A unanimous panel of Fourth Circuit judges today struck down a North Carolina law that forces women seeking an abortion to undergo a sonogram, and then see and hear a detailed description of the fetus - a process that is clearly designed to try and make them choose not to have an abortion. The court bases its decision not on women's right to make their own reproductive choices, but on doctors' First Amendment right not to deliver an anti-choice message that may not be helpful to their patients.

The court focuses on how the law's requirements "impose an extraordinary burden on expressive rights" of the doctors.

While the state itself may promote through various means childbirth over abortion, it may not coerce doctors into voicing that message on behalf of the state in the particular manner and setting attempted here.

Noting that two other circuits have upheld similar laws, the court writes:

With respect, our sister circuits read too much into Casey and Gonzales. The single paragraph in Casey does not assert that physicians forfeit their First Amendment rights in the procedures surrounding abortions, nor does it announce the proper level of scrutiny to be applied to abortion regulations that compel speech to the extraordinary extent present here.

The North Carolina law struck down by this decision did not have an exception for rape or fetal abnormalities. The court writes:

Particularly for women who have been victims of sexual assaults or whose fetuses are nonviable or have severe, life-threatening developmental abnormalities, having to watch a sonogram and listen to a description of the fetus could prove psychologically devastating. Requiring the physician to provide the information regardless of the psychological or emotional well-being of the patient can hardly be considered closely drawn to those state interests the provision is supposed to promote. [internal citations removed]

The repudiation of North Carolina's law was written by Reagan nominee J. Harvie Wilkinson and joined in full by Wliiam Byrd Traxler (a Clinton judge) and Allyson Kay Duncan (a Bush-43 judge). But since today's ruling creates a circuit split, the final decision on laws like this one is likely to be made by the Supreme Court.

PFAW Foundation

Patrick Leahy and This Year's Success on Judges

As we've noted, 2014 has been a year of striking success for judicial nominations, with the Senate confirming a total of 89 circuit and district judges this year. That's the most judges in a single year since 1994, when the Senate confirmed 99 of President Clinton's circuit and district court judges. And due to Republican obstruction, these were not "easy" votes, even though the vast majority of nominees were approved with little to no opposition. Except for 11 who were confirmed by voice vote in the closing minutes of the 113th Congress, Republicans required a cloture vote for every nominee and a roll-call confirmation vote for all but a few of them, meaning that every confirmation consumed a great deal of floor time. (In contrast, about 40% of George W. Bush's circuit and district court nominees were confirmed by unanimous consent or voice vote.)

This yearlong commitment to judges, especially toward the end when most senators just wanted to go home, greatly served the American people and the judicial system we all rely on to protect our rights and the rule of law. Majority Leader Reid rightly made this a priority.

But a special recognition goes to Patrick Leahy, the outgoing chairman of the Judiciary Committee. He and his staff worked hard to process nominees quickly and efficiently, even while Republicans sought to slow the process down for no reason (e.g., routinely insisting on delaying committee votes without need or explanation). Timely hearings and votes are a critical component of an efficient confirmation process. The 11 consensus nominees approved by voice vote at the very end of the 113th Congress were all approved by the Judiciary Committee during the lame duck, and three of them had their hearings at the beginning of the lame duck. This speaks to the chairman's commitment to filling the vacancies on our nation's courts.

But Leahy's contributions went far beyond the Judiciary Committee hearing room. He has regularly spoken out on the Senate floor on the importance of getting judges confirmed, exposing and condemning needless delaying tactics. He has spoken out in party caucus meetings and in one-on-one conversations with his Democratic colleagues. And he doesn't just speak in generalities: He is specific, always with an array of statistics at his command demonstrating his point.

So much of the work of the Senate goes on off camera, in the interactions among its members. Perhaps no one knows that better than Leahy, who has served in the Senate longer than anyone else there today. Our nation is reaping the benefit of his dedication and his talent, since the Senate has gotten the number of judicial vacancies down to below – well below, in fact – where they were when President Obama took office.

This year's success would not have happened without him.

PFAW