Senators Should Watch This Video from the Federal Judiciary

The federal judiciary today released a short educational video on the right to counsel that every member of the Senate should see ... especially those who participated in or acquiesced to the smear campaign against Debo Adegbile earlier this year. Adegbile, who had been nominated to head the Civil Rights Division at the Justice Department, was attacked because he was involved at the appeals stage in the representation of someone who had been convicted of killing a police officer. The Right Wing whipped up opposition to his nomination, linking him with his client and attacking him for providing representation at all. Every Republican present voted to filibuster Adegbile, as did seven Democrats.

This assault on the right to counsel, a fundamental constitutional right that undergirds our system of justice and protects the freedoms of all Americans, was widely condemned. For instance, more than 1,000 law professors wrote a letter to the Senate explaining the terrible ramifications of its action.

Released by the Administrative Office of U.S. Courts, today's video isn't about judicial nominations, and it wasn't made for senators. But they should watch it anyway. Too many of them need to be reminded that, as federal Magistrate Judge Jonathan Feldman of New York explains:

The right to counsel is really the fundamental cornerstone of our justice system. Imagine a system of justice where you don't have the right to a lawyer, where you could simply be accused of doing something wrong and taken right to prison.

The video also explains why people who don't commit crimes should nevertheless care about the right to counsel:

[Federal Judge Raner Collins of Arizona:] Even though you will never commit a crime yourself, you still may be accused of a crime. It's easy to accuse someone of doing something wrong.

[Sigmund Adams, former Assistant Federal Public Defender in Maryland]: These things are really about protecting all of us, not just people who are accused. They're about protecting all of us from an overreach by our government.

[Magistrate Judge Feldman:] You want to have confidence in our justice system, and if you have a lawyer on both sides, and both sides are well represented, that gives the public confidence that the result that comes out of that trial was fair and just.

Across America, hardworking attorneys are engaged in the valuable public service of representing indigent or highly unsavory people accused of crimes. Like John Adams defending British soldiers charged with killing Americans in the Boston Massacre, they embody the best of our nation's constitutional values.

Whether they have been nominated for an executive or a judicial position, senators should consider their service as a mark in their favor, not against them.

PFAW

GOP Forces Cloture Petition on 100th Obama Judicial Nominee

Yesterday, in what has become standard operating procedure in the era of Republican obstruction, Senate Majority Leader Reid had to file a cloture petition to end the silent filibuster of a judicial nominee. Like many others who have required cloture, 11th Circuit nominee Jill Pryor doesn't face any real opposition. In fact, she was approved unanimously by the Judiciary Committee.

Pryor is the 100th Obama judicial nominee to need a cloture petition (as compared to 18 for the entire Bush Administration). (Since some cloture petitions before this year were cleared up without the need to hold a cloture vote, Pryor will be the 76th Obama judicial nominee rather than the 100th to have a cloture vote.)

In 2014, not one judicial nominee has been able to get a confirmation vote without first needing a cloture vote to break a Republican filibuster. Think about it: Republicans have refused to consent to even one judicial confirmation vote this year. The great progress Americans have seen during the past few months in getting judges confirmed has been in spite of GOP obstruction, not because of GOP cooperation.

Not that they have any problems with the nominees, most of whom are ultimately confirmed with overwhelming and often unanimous Republican support. So rather than confirming blocks of nominees in quick voice votes or by unanimous consent, the Senate is forced to hold time-consuming roll-call cloture and confirmation votes for each individual nominee (often with hours of time required between the two votes). At least during President Obama's first term, a number of cloture petitions were vitiated, meaning that Republicans eventually allowed a confirmation vote without the need for a cloture vote. But that doesn't happen anymore.

The Republican goal is what it has been since President Obama took office: Gum up the works and keep vacancies open as long as possible in order to minimize the president's impact on the nation's judiciary, and in order to maximize opportunities for a Republican president to fill the bench with right-wing ideologues. Senate Democrats are right to fight the obstruction and to allow the Senate to fulfill its constitutional responsibility of keeping our nation's courts functioning.

Just imagine the damage to our courts if Republicans control the Senate – and the confirmation process – during President Obama's last two years.

PFAW

Judicial Vacancies Wreaking Havoc In U.S. Courts

Judicial vacancies slow down courts’ work, drive up litigation costs, cause evidence to go stale, make it harder to settle civil cases, and even pressure defendants into pleading guilty, according to a report released this week by the Brennan Center. The report cites example after example of how not having enough judges erodes our nation’s system of justice. Everyone counts on having their day in court, a fundamentally American principle that is threatened by persistent vacancies. The report quotes Chief Judge William Skretny of New York’s Western District:

We don’t neglect the Seventh Amendment, the right to a civil trial. But we tell people, if this is what you want to do, it will take time to get there.

Heavier caseloads and backlog created by vacancies also take a toll on judges, reducing the amount of time they have to spend on each case.

Chief Judge [Leonard] Davis in the Eastern District of Texas described the situation in his district as “simple math.” With more cases “you have less time to give to [an individual] case,” he explained. “It affects the quality of justice that’s being dispensed and the quantity of work you can complete,” he added.

[Judge Davis] also highlighted the impact of the Sherman vacancy on the timing of sentencing. “It’s a hardship for the litigants,” he explained. “Due to the backlog and [the] vacancy [in Sherman], we have a very high population of criminal defendants, about 200, sitting in county jails, having pled guilty and waiting for sentences. They can’t get their cases processed.” He noted that inmates are typically housed in a county jail because there are no federal facilities available, which is more costly for the government and leaves inmates with fewer work and educational opportunities. “That’s not fair to [the inmates] and adds a great deal of unnecessary cost by having to house them for so long in county jail holding facilities,” he said.

As the report makes clear, vacancies have real impacts for all citizens. This is why PFAW supports the speedy confirmation of qualified judicial nominees to federal courts. Filling judicial vacancies with quality judges will reduce backlogs and costs while allowing the judicial system to better serve all Americans. Maintaining the third branch is one of the most important constitutional functions that the Senate performs.

PFAW

What Hobby Lobby Shows Us About the Supreme Court and Civil Rights Laws: Winners and Losers in the Roberts Court

Share this article:

This post was originally published at the Huffington Post.

In its recent decision in Hobby Lobby, the conservative 5-4 majority -- Chief Justice Roberts and Justices Alito, Scalia, Thomas, and Kennedy -- did something that may appear very unusual. In divided cases, these five justices have the reputation for interpreting very narrowly laws passed by Congress to protect civil rights. So why did they interpret so broadly the Religious Freedom Restoration Act (RFRA), a law passed by Congress to protect the important civil right of religious freedom? The answer, unfortunately, is all too clear. Comparing Hobby Lobby with the two rulings in civil rights law cases issued by the Court over the last year, the key factor that explains how the conservative majority ruled is not precedent, the language of the statute, or congressional intent, but who wins and who loses.

Let's start with last year's rulings, both of which concerned Title VII of the 1964 Civil Rights Act which bans employment discrimination. In University of Texas Southwestern Medical Center v. Nassar, the majority ruled very narrowly in interpreting Title VII, deciding that the only way that employees can prevail on a claim that they have been fired in retaliation for raising job bias claims is to prove that they would not have been discharged "but for" the retaliatory motive. This was despite the fact that in order to strengthen Title VII, Congress added language to the law in 1991 to make clear that plaintiffs should prevail if they show that discrimination was a "motivating factor" in a job decision. As Justice Ginsburg explained in dissecting Justice Alito's attempt for the majority to draw a distinction between retaliation and other claims under Title VII, the net effect of the majority's ruling was to make it harder to prove a Title VII retaliation claim than before the 1991 law and with respect to other civil rights statutes that don't explicitly mention retaliation. The 5-4 majority had "seized on a provision adopted by Congress as part of an endeavor to strengthen Title VII," she concluded, "and turned it into a measure reducing the force of the ban on retaliation."

In Nassar, in ruling against a doctor of Middle Eastern descent in a case also involving egregious ethnic and national origin discrimination, Alito disregarded clear legislative history and language showing Congress' broad intent, as well as the interpretation of the law by the Equal Employment Opportunity Commission (EEOC). Interestingly, towards the end of his opinion, Alito appeared to reveal a key consideration behind the majority's decision. The ruling was important, he explained, to "the fair and responsible allocation of resources in the judicial and litigation systems." After all, he pointed out, retaliation claims "are being made with ever-increasing frequency," although he did not even consider how many have been proven meritorious. Agreeing with the EEOC and the plaintiff on the "motivating factor" standard, he wrote instead, "could also contribute to the filing of frivolous claims." As Justice Ginsburg put it, the majority "appears driven by zeal to reduce the number of retaliation claims against employers."

The other 2013 Title VII ruling also reflected an extremely narrow reading of the law. Vance v. Ball State University concerned a complaint by an African-American woman that she had been subjected to racial harassment and a racially hostile work environment. Under prior Title VII Court rulings agreed to by both conservative and moderate justices, the employer itself is often liable for such harassment claims when the harassment is committed by an employee's supervisor. But in Vance, in an opinion by Justice Alito, the familiar 5-4 Court majority significantly narrowed Title VII. It ruled that such vicarious employer liability applies only when the harassment is committed by a manager who can fire or reduce the pay or grade of the victim, not when it is committed by a manager who does not have that power but does control the day-to-day schedules, assignments, and working environment of the victim.

As Justice Ginsburg explained in dissent, the majority's holding again contradicted guidance issued by the EEOC as well as Congress' broad purpose to eliminate workplace discrimination. In fact, she pointed out, not even the university defendant in Vance itself "has advanced the restrictive definition the Court adopts." But again, Alito's opinion betrayed part of the majority's true motives. Its narrow interpretation would be "workable" and "readily applied," Alito explained. And it would promote "the limitation of employer liability in certain circumstances."

Something very different happened in the next Supreme Court case interpreting a Congressional civil rights statute: 2014's Burwell v. Hobby Lobby.

In that case, the same 5-4 majority that narrowly interpreted Title VII in Vance and Nassar adopted a very broad interpretation of the Religious Freedom Restoration Act (RFRA). All nine justices agreed that RFRA was enacted by Congress in response to the Supreme Court decision in Employment Division v. Smith, which restricted the protection of religious liberty by the Court under the First Amendment. But the 5-4 majority in Hobby Lobby ruled that RFRA provides "very broad protection for religious liberty" - "even broader protection than was available" under the First Amendment in pre-Smith decisions. As Justice Ginsburg put it in dissent, the majority interpreted RFRA "as a bold initiative departing from, rather than restoring, pre-Smith jurisprudence." She explained further that this broad interpretation contradicted the language of the statute, its legislative history, and a statement by the Court in a unanimous ruling in 2006 that in RFRA, Congress "adopt[ed] a statutory rule comparable to the constitutional rule rejected in Smith."

This difference in statutory interpretation was critical to the majority's ruling in Hobby Lobby -- that for-profit corporations whose owners had religious objections to contraceptives could invoke RFRA to refuse to obey the Affordable Care Act's mandate that they provide their employees with health plans under which contraceptives are available to female employees. As Justice Ginsburg explained, no previous Court decision under RFRA or the First Amendment had ever "recognized a for-profit corporation's qualification for a religious exemption" and such a ruling "surely is not grounded in the pre-Smith precedent Congress sought to preserve." The 5-4 majority's broad interpretation that RFRA applies to for-profit corporations like Hobby Lobby was obviously crucial to its holding.

In addition, however, the 5-4 majority went beyond pre-Smith case law in another crucial respect. Before a person can claim an exemption from a generally applicable law under RFRA, he or she must prove that the law "substantially burden[s] a person's exercise of religion." According to the majority, the corporations in Hobby Lobby met that standard by demonstrating that the use of certain contraceptives that could be purchased by their employees under their health plans would seriously offend the deeply held religious beliefs of their owners. As Justice Ginsburg explained, however, that ruling conflicted with pre-Smith case law on what must be shown to prove a "substantial burden." In several pre-Smith cases, the Court had ruled that there was no "substantial burden" created by, for example, the government's use of a social security number to administer benefit programs or its requirement that social security taxes be paid, despite the genuine and sincere offense that these actions caused to some religious beliefs. As Justice Ginsburg stated, such religious "beliefs, however deeply held, do not suffice to sustain a RFRA claim," except under the extremely broad interpretation of RFRA by the 5-4 Court majority.

As in the Title VII cases, Justice Alito's opinion for the 5-4 majority in Hobby Lobby was revealing about some of the majority's underlying concerns. In explaining the majority's decision to interpret RFRA as applying to for-profit corporations, Justice Alito noted that "[w]hen rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people" - in this case "the humans who own and control those companies" in the Hobby Lobby case. As Justice Ginsburg observed, the 5-4 majority paid little attention to the Court's pronouncement in a pre-Smith case that permitting a religious exemption to a general law for a corporation would "operate[e] to impose the employer's religious faith on the employees" of the corporation.

Even though the Supreme Court's 2013-14 rulings that interpreted civil rights laws passed by Congress may seem different, a common theme animates them all. Whether the 5-4 majority interpreted the statutes broadly or narrowly, the losers in all of them were women, minorities, and working people, and the winners were employers and corporations. In the majority's own words, the result is the "limitation of employer liability" under laws like Title VII designed to protect workers and the "protecting" of the "humans who own and control" corporations under RFRA.

Since all these rulings interpret Congressional statutes, not the Constitution, Congress clearly has the authority to reverse them. In fact, Congress has done exactly that with respect to other 5-4 rulings by the Court that misinterpreted civil rights statutes to harm women and minority workers and benefit their corporate employers. As recently as 2009, the Lily Ledbetter Fair Pay Act reversed a flawed 5-4 ruling that severely restricted workers' ability to file equal pay claims under Title VII. Congress is already considering legislation to reverse many of the effects of Hobby Lobby, a corrective effort that Senate Republicans have blocked by a filibuster to prevent the full Senate from even considering it. In our currently divided Congress, immediate prospects for the passage of such remedial legislation may not appear promising. But it is important to recognize the current 5-4 majority's pattern of favoring corporations and harming workers in its decisions interpreting federal civil rights laws, and to recognize and act on the ability to reverse these harmful rulings.

PFAW Foundation

Fourth Circuit Unanimously Upholds Obamacare Subsidies

In stark contrast to this morning's split DC Circuit ruling, a unanimous panel of the Fourth Circuit today upheld the ACA's subsidies for Americans buying health insurance on federally-created exchanges. Judge Andre Davis (an Obama nominee) wrote a powerful concurring opinion blasting the illogical premise and blatantly political nature of the lawsuit:

Appellants' approach would effectively destroy the statute by promulgating a new rule that makes premium tax credits unavailable to consumers who purchased health coverage on federal Exchanges. But of course, as their counsel largely conceded at oral argument, that is their not so transparent purpose.

Appellants, citizens of the Commonwealth of Virginia, do not wish to buy health insurance. Most assuredly, they have the right, but not the unfettered right to decline to do so. They have a clear choice, one afforded by the admittedly less-than-perfect representative process ordained by our constitutional structure: they can either pay the relatively minimal amounts needed to obtain health care insurance as provided by the Act, or they can refuse to pay and run the risk of incurring a tiny tax penalty. What they may not do is rely on our help to deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear. (internal citations removed)

Ouch.

PFAW Foundation

D.C. Circuit Old Guard Strikes Down Key Obamacare Subsidies Provision

A divided panel of the D.C. Circuit this morning struck down a key provision of the Affordable Care Act that allows subsidies for millions of people purchasing health insurance on government-run exchanges. The case is one of four cases on the same issue, strategically planted in various places around the country (Washington DC, Virginia, Oklahoma, and Indiana). The intent is apparently to get a split in circuit court opinions, so the Supreme Court will be more likely to take the case and, the proponents hope, deliver a crippling blow to Obamacare. (Unlike the millions of Americans who would be the real victims if this scheme succeeds, its proponents presumably have access to health insurance.) Today's ruling is the first among the four circuits.

Opponents of healthcare have an argument that might look appealing on the surface but doesn't pass the smell test. Section 1311 of the ACA says states should set up insurance exchanges. Section 1321 of the Act says the federal government can set one up if a state doesn't. The statute also says how to calculate the amount of a subsidy available for less well-off people getting health insurance through an exchange. It's based on the amount the person pays for the insurance s/he is enrolled in through an exchange "established by the state under [section] 1311" of the ACA. It's on the "by the state" language that the ACA's opponents hang their hat.

The anti-ACA people say the text is clear: The subsidy is unavailable to those who are getting their insurance in states where the federal government has set up the exchange. Judge Thomas Griffith and Senior Judge Raymond Randolph (nominated by Bush-43 and Bush-41, respectively) grabbed on to this argument, striking down subsidies for Americans living in states where politicians have chosen not to set up their own state exchanges.

Senior Judge Harry Edwards (a Carter nominee) dissented, pointing out that this was clearly not the intent of Congress. He explained the case quite plainly:

This case is about Appellants' not-so-veiled attempt to gut the Patient Protection and Affordable Care Act ("ACA").

...

Appellants' proffered construction of the statute would permit States to exempt many people from the individual mandate and thereby thwart a central element of the ACA. As Appellants' amici candidly acknowledge, if subsidies are unavailable to taxpayers in States with HHS-created Exchanges, "the structure of the ACA will crumble." It is inconceivable that Congress intended to give States the power to cause the ACA to "crumble." [emphasis added, internal citation removed]

Judge Edwards continues, shattering the majority's argument that their interpretation fits with congressional intent:

Apparently recognizing the weakness of a claim that rests solely on [one particular section of the Affordable Care Act], divorced from the rest of the ACA, Appellants attempt to fortify their position with the extraordinary argument that Congress tied the availability of subsidies to the existence of State-established Exchanges [rather than federal ones] to encourage States to establish their own Exchanges. This claim is nonsense, made up out of whole cloth. There is no credible evidence in the record that Congress intended to condition subsidies on whether a State, as opposed to HHS, established the Exchange. Nor is there credible evidence that any State even considered the possibility that its taxpayers would be denied subsidies if the State opted to allow HHS to establish an Exchange on its behalf.

The majority opinion ignores the obvious ambiguity in the statute and claims to rest on plain meaning where there is none to be found. In so doing, the majority misapplies the applicable standard of review, refuses to give deference to the IRS's and HHS's permissible constructions of the ACA, and issues a judgment that portends disastrous consequences.

Those disastrous consequences are not the intent of Congress, but they are the intent of far right zealots.

The Justice Department has already said it will seek an en banc review by all eleven judges of the D.C. Circuit, where President Obama's opponents have less likelihood of winning than would have been the case a year ago. In case you were wondering why Senate Republicans pulled out all the stops last year and declared they would not allow President Obama to fill any of the three then-existing vacancies on the D.C. Circuit, cases like this are why. The last thing they wanted was a balanced, non-ideological court.

For anyone who cares about healthcare, courts matter.

PFAW

Diversity Milestone for Obama's Judicial Nominees

Last week's confirmation of Ronnie White was a milestone, and not just because the Senate corrected a 15-year old injustice. It was also a diversity milestone: Ronnie White is the 100th person of color that President Obama has made a federal circuit or district court judge.

That is more than twice the number at the same point in the George W. Bush Administration, and far exceeds Bush's total for his entire eight years in office. In fact, President Obama has had more minority judges confirmed than any other president.

One of the hallmarks of President Obama's judicial nominations has been his commitment to a federal bench that is not only highly qualified, but also reflective of the great diversity of the American people. And he has succeeded on that score, despite unprecedented obstruction from Senate Republicans.

With last week's confirmation of Ronnie White, President Obama reached a milestone in correcting an injustice that goes back not just 15 years, but all the way back to the nation's founding: the systematic exclusion of people of color from the federal bench.

PFAW

Grassley's Hypocrisy Comes Out in the Ronnie White Debate

Sen. Chuck Grassley, the senior Republican on the Judiciary Committee, tried today to demonstrate why Ronnie White should not be confirmed as a federal judge in Missouri. But in so doing, Grassley succeeded only in demonstrating his own partisan hypocrisy.

On the Senate floor, Grassley said:

Discussing his judicial philosophy, [Ronnie White] said in 2005 that he thinks it's appropriate for judges to let their opinions be “shaped by their own life experiences.”

I think the personal characteristics of the judge – what this nominee calls his “own life experiences” – should play no role whatsoever in the process of judicial decision making.

"No role whatsoever," Grassley says. Yet when a far-right Bush judicial nominee made a similar statement, Grassley had no problem with it. At his confirmation hearing, Samuel Alito, then a circuit judge, told senators how his judicial opinions were shaped by his family's life experiences. For instance:

When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.

Neither White nor Alito was saying they would base their judicial opinions on their own personal political ideologies (although it turns out that is exactly what Alito has done). But Grassley is a conservative with a mission to populate the federal bench with more people like Sam Alito and fewer people like the ones President Obama nominates.

Grassley's power to shape the bench will be greatly augmented should Republicans take over the Senate this fall, as he would then become chairman of the Judiciary Committee.

PFAW

Senate Corrects a 15-Year Old Injustice and Confirms Ronnie White

This afternoon, the Senate confirmed a federal judge for the Eastern District of Missouri. While the confirmation of a district court judge is not usually cause for headlines, this is an exception. In confirming Ronnie White, the Senate is finally correcting a 15-year-old injustice.

In 1997, White was nominated by President Clinton to the same judgeship. However, White's nomination was successfully and unfairly targeted by then-Sen. John Ashcroft. Ashcroft delayed the nomination for two years, and in 1999 he spearheaded a party-line fight to defeat White's confirmation. Ashcroft's distortion of White's record was widely criticized at the time, as well as later when he was nominated to become Attorney General.

The first African American to sit on the Missouri Supreme Court, Ronnie White was then – and remains now – supremely qualified to be a federal judge. He brings to the bench years of experience in both private practice and public service. He began his long and successful career as a public defender, then was elected three times to the state legislature. He was appointed to a state judgeship, and later served for twelve years on the Missouri Supreme Court, including as its Chief Justice. He has spent the past seven years as a partner in a major law firm. His career encapsulates in one person the broad professional diversity that so strengthens our federal courts.

Sen. Claire McCaskill is to be commended for recommending White to the president and giving the Senate a chance to do what it should have done 15 years ago: confirm Judge Ronnie White to the federal bench.

PFAW

Barney Frank: This Year’s Midterm Elections Define Our Courts

In an op-ed printed in the Portland Press Herald this weekend, retired congressman Barney Frank offers a sharp critique of the far right Supreme Court under John Roberts. Explicitly noting the importance of the Court in defining law that affects all citizens, Frank makes clear not only that courts matter, but everyday citizens have a hand in how these courts are shaped.

Reviewing the impact of recent Supreme Court decisions — from overturning “more than 100 years of federal and state efforts to regulate the role of money in campaigns” to declaring that corporations have the right to religious freedom under RFRA—Frank states that “the court has ended this term with a barrage against laws it does not like” (emphasis added).

He continues,

…The Supreme Court is now strongly inclined to impose conservative ideology via Constitutional interpretation on a broad range of public policy. It is true that Kennedy and to some extent Roberts occasionally deviate from this, but Justice Samuel Alito has surpassed even Justices Antonin Scalia and Clarence Thomas in his ideological purity.

The relevance of this to the next two elections is very clear. Four of the sitting justices are in their late 70s or older. This means that there is a strong possibility that President Obama will have a chance to appoint another justice before his term expires, but his ability to do so will be determined not simply by the health of the justices in question, but by the composition of the U.S. Senate. The increasing partisanship in the Senate, the continued virulent influence of the tea party and recent history strongly suggest that even if a vacancy occurs, Obama will be prevented from filling it (emphasis added).

Frank refers to the unceasing Republican obstructionism and argues courts are critical for defining laws that affect Americans on a daily basis, highlighting the importance of this year’s midterm elections. As he concludes in this piece,

This makes it highly likely that among the issues that will be determined in the next senatorial and presidential election will be the ideological makeup of the Supreme Court. Voters should act accordingly.

PFAW