Justice Ginsburg Mourns Breakdown of Judicial Nominations Process

At a speech yesterday at Southern Methodist University, Justice Ruth Bader Ginsburg touched upon the depressing state of our nation's judicial nominations process. As reported by the Associated Press:

U.S. Supreme Court Justice Ruth Bader Ginsburg said Monday that the confirmation process has become much more partisan and that she probably never would have made it to the high court under the current climate.

"I wish we could wave a magic wand and go back to the days when the process was bipartisan," Ginsburg told the crowd of about 2,000 as she spoke as part of a lecture series for Southern Methodist University's Dedman School of Law.

While most of us cannot wave such a magic wand, Senate Minority Leader Mitch McConnell can. With one word he could stop many of the GOP obstruction tactics against President Obama's judicial nominees. It was just such obstruction that prevented the Senate from voting to confirm twenty pending nominees before it left town several weeks ago, 17 of whom got through committee with no recorded opposition.

As ThinkProgress reported, Justice Ginsburg also noted the hostility felt by some senators toward the ACLU: "Today, my ACLU connection would probably disqualify me."

Unfortunately, she may be right. Late last year, Senator Jeff Sessions – then the Ranking Republican on the Senate Judiciary Committee – railed against judicial nominees who had worked with or been a member of the ACLU, specifically targeting William Martinez, Edward Chen, Goodwin Liu, Jack McConnell, Amy Totenberg, Robert Wilkins, and Michael Simon. He concluded his tirade with the following warning to President Obama:

I do believe the administration needs to understand that this is going to be a more contentious matter if we keep seeing the ACLU chromosome as part of this process.

Republican hostility to the ACLU – and to the constitutional rights it regularly protects – is extremely disturbing. At the same time, the blocking of even unopposed nominees suggests that the GOP's main problems with President Obama's nominees is that they are President Obama's nominees.

PFAW

Ongoing Focus on GOP Obstruction of Judicial Nominations

Since President Obama took office, Republican obstruction of his judicial nominees has been multifaceted, unstinting, highly partisan, hypocritical, and unprecedented in scope. When the Senate left town at the start of the month, Republican leaders prevented the Democrats from scheduling a vote on 20 extremely qualified nominees who had cleared the Judiciary Committee.

Yesterday, the White House Blog called attention to the obstruction and to the highly qualified and diverse federal bench that the president is working to build:

[T]he President's nominations for federal judges embody an unprecedented commitment to expanding the racial, gender and experiential diversity of the men and women who enforce our laws and deliver justice.

Unfortunately, the delays these nominees are encountering on Capitol Hill are equally unprecedented: earlier this month, the Senate left for its August recess without considering 20 eminently qualified candidates, 16 of whom had passed through the bipartisan Senate Judiciary Committee completely unopposed, a development the Washington Post called "not only frustrating but also destructive" in an editorial published yesterday.

As the Republicans know, their intransigence is exacerbating a destructive vacancy crisis in federal courtrooms, one that is making it harder and harder for Americans to secure their rights:

The victims of these delays, of course, are the American citizens who are being denied the fair and timely judicial proceedings they deserve because of the chronic shortage of federal judges on the bench. Stephen Zack, president of the American Bar Association, told Senate leaders in a recent letter that the abundance of vacant federal judgeships "create strains that will inevitably reduce the quality of our justice system and erode public confidence in the ability of the courts to vindicate constitutional rights or render fair and timely decisions."

Click here to see the White House's infographic highlighting the obstruction and its consequences for families and businesses. It shows that:

  • The average wait time between committee approval and confirmation has leapt from 29 days for George W. Bush's circuit court nominees to an incredible 151 days for President Obama's.
  • For district court nominees, a 20-day wait for Bush's nominees has become a 103-day wait for Obama's.
  • Judicial vacancies have grown from 55 in 2009 to 91 today.
  • People are forced to wait an average of more than two years for a civil jury trial.
PFAW

Stephen Colbert Takes On Repressive Voter ID Laws

Earlier this week Omari told us about Stephen Colbert's excellent "It Gets Better" video, in which Colbert dropped his hyper-conservative character and adopted a more serious approach to give teens advice on bullying. Today we have another example of his brilliance in more familiar Colbert style: a blistering take-down of voter ID laws passed by several states this year, which he correctly characterizes as laws designed to "keep the wrong people from voting." 

This segment from his show on Wednesday does a great job of pointing out the ridiculousness of saying there is in any way a significant problem with voter fraud in these states. Colbert cites the case of Ohio, where there were four instances of fraud documented last year, amounting to "a jaw-dropping 44 one-millionths of one percent" of all votes cast. As Colbert puts it, these laws seem to be aimed at "an enemy so small it could be hiding anywhere!" Colbert also points out the troubling impact these laws will have on voters: in South Carolina, 178,000 voters do not have the government-issued photo ID now needed to vote.

These laws are an egregious example of the radical right attempting to tip the rules of the game in their favor by violating the rights of citizens, and creating a false narrative of a voter fraud epidemic that simply doesn't exist.

 

PFAW

Empowering LGBT youth: Stephen Colbert, “It gets better”

Stephen Colbert, an actor, comedian, and host of the political satire show, The Colbert Report, dropped his usual sarcastic persona to speak candidly about the problems of teen bullying.

In this video for the “It Gets Better Project,” Colbert discusses his own experience with being harassed at school, as well as a lesson he learned after one his own friends courageously stood up to a bully after being called a “queer”.

If you don’t give power to the words that people throw at you, to hurt you, they don’t hurt you anymore—and you actually have power over those people.

      

Colbert adds another voice to the over ten thousand people who have contributed messages of hope and support to LGBT youth, including President Obama, Secretary of State Hillary Clinton, numerous senators, and several celebrities.

Unfortunately, not everyone thinks that LGBT youth deserve support. People For the American Way has been tracking right-wing activists who have been intervening in the problem of teen bullying…by supporting the bullies.

PFAW

A Milestone for Diversity on the Federal Bench

Today, the Senate confirmed J. Paul Oetken to be a federal judge in the Southern District of New York. He is the first openly gay man to be confirmed as an Article III judge (one with lifetime tenure).

In order for the federal judiciary to effectively protect our constitutional rights, the bench must reflect the diversity of America. That is not to say that demography determines how a judge will rule. But it is true that a person's background can give them insight into the effect of a law that others might miss. Ignorance of a law's actual impact can lead to a serious misanalysis of its constitutionality.

Some of the most notorious Supreme Court cases in history rest on such misunderstandings and show the results of a non-diverse bench. For instance, Plessey v. Ferguson, the 1896 case that upheld racial segregation, reflected the thinking of an advantaged class who had no real idea of how Jim Crow laws affected real people. The majority rejected out of hand

the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

Similarly, Justice Scalia made headlines in 2009 when he angrily challenged the assertion that non-Christians might not see a Christian cross as a symbol of respect. While they may not have changed his mind, it was good that he had non-Christian colleagues who could have given him a sense of how people different from him are affected by the law. And perhaps the notorious 5-4 Bowers v. Hardwick opinion might have been different had there been an openly gay Justice there to tell his colleagues that their assumptions about "practicing homosexuals" were simply incorrect. Surely discussions of laws impacting women are improved by actually having women on hand to offer the benefit of their experience. And judges who have been stopped for "driving while black" may recognize the real-world impact of certain police practices that might seem relatively benign to others.

A richly diverse judiciary makes it more likely that judges will understand how their decisions will affect ordinary people, and that laws protecting individuals will actually be enforced as intended. President Obama's nomination of J. Paul Oetken is part of his overall efforts to significantly increase the diversity of the bench, an effort that has, unfortunately, been met with stubborn resistance by Senate Republicans.

PFAW

PFAW and AAMIA react to DC approps, reaffirm support for White House rally

Last week, DC Delegate Eleanor Holmes Norton hosted a press conference on Capitol Hill in defense of her city. Speaking out against several policy riders that have been passed or threatened by conservatives in Congress, Delegate Norton, DC Mayor Vincent Gray, DC Vote, and members of the civil rights community, including People For the American Way and African American Ministers in Action, voiced their support for autonomy and the right to self-government for the people of the District of Columbia.

PFAW and AAMIA just got their first glimpse of the FY12 DC appropriations bill. While some issues were spared, other riders are in.

Roll Call:

The bill that funds the District includes a provision restricting the city from spending federally appropriated and locally collected funds on abortion services, except in cases where the mother’s life is in danger or the pregnancy was a result of rape or incest.

It also includes $60 million for a federally funded, private-school voucher program, a key priority for Boehner.

Delegate Norton warns that we’re not out of the woods on any issue.

The introduction of the bill is only the first step in a long appropriations process, and action by the new national coalition is essential as the bill goes to committee and to the floor.

We are currently waiting for news from the first of the committee meetings.

PFAW President Michael B. Keegan recently noted:

Rather than address the many complex issues facing our nation, House Republicans are choosing to threaten women's constitutional rights by attacking choice and preventive care, and they are taking every chance they get to force their social priorities on the people of Washington, DC.

And while there is no doubt that educational opportunities and standards must be improved across the country, allocating money to private schools at the expense of public school students is not the way to succeed. Public dollars must continue to fund public services.

PFAW and AAMIA continue to believe that enough is enough – the people of DC deserve a voice. We hope that voice will be heard loud and clear on June 25 at the White House Rally for DC Democracy, organized by our friends at DC Vote.

Date: Saturday, June 25, 2011

Location: Lafayette Square Park, 16th Street & H Street NW (in front of the White House)

Time: 11:00 AM - 1:00 PM

Click here to RSVP, and here to learn about additional opportunities to support DC Vote on June 25.

As you may know, there have been dozens of civil disobedience arrests this year of citizens who stood up for the District’s right to self-govern. Neither PFAW nor AAMIA are organizing a civil disobedience action for June 25. If you need assistance, you may contact DC Vote directly.

For more information, please click here.

PFAW

Harry Jackson Says MLK Would Oppose Marriage Equality

Yesterday, the House of Representatives passed the House Armed Services Committee Authorization bill, which included three amendments designed to delay the repeal of the discriminatory “Don’t Ask, Don’t Tell” policy.

With the Senate taking up the bill, Rep. Randy Forbes, along with Bishop Harry Jackson and a group of right-wing pastors, held a press conference to encourage the Senate to pass the pro-DADT amendments.

Attempting to seem semi-reasonable, Jackson began the conference by claiming that amendments intending to make the repeal of DADT more difficult and time-consuming weren’t about DADT itself, but instead about “clarity.”

That line of reasoning lasted all of 15 minutes. By the time Q&A rolled around, Jackson and the Religious Right figures that had joined him used all of the same tired arguments that have been used against DADT in the past. When asked if the repeal of DADT would hurt recruitment, Bishop John Neal claimed that he wasn’t sure, but what he was really worried about was the “close quarters” that soldiers have to share, and what would happen when there was “only one spout” on the shower.

This again?

Multiple speakers claimed that “no one should be marginalized for their religious beliefs,” but they all seem to believe that marginalizing people for their sexual orientation is perfectly acceptable. One of the speakers, John Neil, went so far as to claim that the military discriminates all the time, by not allowing, for example, extraordinarily tall people to pilot cramped fighter jets. Because that’s exactly the same situation.

Despite their claims to be promoting the rights of chaplains, this group showed that their real goal was restricting the rights of the LGBT community, going so far as to assert that Martin Luther King Jr. would disapprove of same-sex marriage:


 

Jackson: There were members of his family who were for gay marriage, others were against. I know this: King basically spoke from two vantage points that he thought were very, very sacred within the American culture - one was the Bible and the other was the Constitution. And I think what we're dealing with here is that from a biblical perspective, King no doubt would have been with us biblically. And I think, again, the lines of what is exactly the right of an American to do, I've got a hard time believing that "the pursuit of happiness" crosses into some of these areas. So I think that King would be with us, as a preacher first.

Question: Just to clarify: you're saying Dr. King would be against gay marriage?

Jackson: Yes. Very specifically, yes. Because it's against what is clearly written in Scripture. And if you listen to any of his messages, that clarion call to scriptural accountability even to the point when his own house was firebombed and folks came up in Montgomery armed and ready to go fight folks, he said "no, no, no, we will turn the other cheek." So there was not just a tacit biblical acceptance or kind of whitewashing, if I can use that phrase, certain kinds of behaviors and say this is Christian, this is not. I think there was an inherent commitment to those issues in our social culture.
PFAW

With Liu Gone, GOP Still Twisting his Record

On Wednesday night, Berkeley law professor Goodwin Liu wrote to President Obama asking that the his nomination to sit on the Ninth Circuit Court of Appeals be withdrawn. Liu’s exit was the culmination of two years of smears, scapegoating and filibustering, in which the nominee never even got an up or down vote from the Senate.

The main gist of Republican opposition to Liu was the claim that he would be an “activist judge” in favor of making up constitutional rights willy-nilly (a claim that Republicans in the Senate have lobbed at any number of highly qualified judicial nominees, including current Supreme Court justice Elena Kagan, but interestingly not at Republican nominees who have shown strong streaks of creative legal interpretation).

In an op-ed earlier this week, the New York Times singled out Sen. John Cornyn for his false claim that Liu holds the “ridiculous view that our Constitution somehow guarantees a European-style welfare state.” Yesterday, in a letter to the editor, Cornyn fought back, providing this quote from a 2006 law review article by Liu to back up his claim:

On my account of the Constitution’s citizenship guarantee, federal responsibility logically extends to areas beyond education. ... Beyond a minimal safety net, the legislative agenda of equal citizenship should extend to systems of support and opportunity that, like education, provide a foundation for political and economic autonomy and participation. The main pillars of the agenda would include basic employment supports such as expanded health insurance, child care, transportation subsidies, job training and a robust earned income tax credit.

What is interesting about this quote is that it doesn’t say what Cornyn says it says. At all. Nowhere in the quote -- which Cornyn points to as decisive evidence that Liu wants the courts to turn us into Denmark -- does Liu say that the courts should enforce a social safety net. In fact, Liu is careful to specify that he is discussing the duty of Congress to create a “legislative agenda” that fulfills the highest ideals of the Constitution, rather than a judicial responsibility to enforce that agenda.

Elsewhere in the article [pdf], Liu makes it perfectly clear that he sees it as the duty of Congress, not the courts, to guarantee basic living standards for citizens. He even explicitly states that he intentionally doesn’t use the term “rights” because that would imply “judicial enforceability” of the values that he’s discussing:

In this Article, I do not address whether the Supreme Court or any court should hold that the Fourteenth Amendment guarantees an adequate education. Although that question remains open in the case law, my thesis is chiefly directed at Congress, reflecting the historic character of the social citizenship tradition as “a majoritarian tradition, addressing its arguments to lawmakers and citizens, not to courts.” Whatever the scope of judicial enforcement, the Constitution—in particular, the Fourteenth Amendment—speaks directly to Congress and independently binds Congress to its commands. Thus the approach to constitutional meaning I take here is that of a “conscientious legislator” who seeks in good faith to effectuate the core values of the Fourteenth Amendment, including the guarantee of national citizenship.

From this perspective, the language of rights, with its deep undertone of judicial enforceability, seems inapt to probe the full scope of a legislator’s constitutional obligations. As Professor Sager has observed, “[T]he notion that to be legally obligated means to be vulnerable to external enforcement can have only a superficial appeal.” It is more illuminating to ask what positive duties, apart from corresponding rights, the Fourteenth Amendment entails for legislators charged with enforcing its substantive guarantees. Framed this way, the inquiry proceeds from the standpoint that Congress, unlike a court, is neither tasked with doing legal justice in individual cases nor constrained by institutional concerns about political accountability. Instead, “Congress can draw on its distinctive capacity democratically to elicit and articulate the nation’s evolving constitutional aspirations when it enforces the Fourteenth Amendment.” By mediating conflict and marshaling consensus on national priorities, including the imperatives of distributive justice, Congress can give effect to the Constitution in ways the judicial process cannot.

Thus the legislated Constitution, in contrast to the adjudicated Constitution, is not “narrowly legal” but rather dynamic, aspirational, and infused with “national values and commitments.” …

(emphasis is mine)

Cornyn and his pals in the Senate know what was in the article they attacked. Liu even explained it to them in detail in response to written questions from the Senate Judiciary Committee [pdf]. But it was easier to willfully misinterpret Liu's writing and paint him as irresponsible than to engage in a substantive debate on his qualifications.

 

PFAW

Focus on the Family Leader Admits that Right is “Losing” Equality Debate

Jim Daly, president of the Religious Right group Focus on the Family conceded to an interviewer last week that anti-gay groups have “probably lost” the debate over marriage equality. It’s a big admission by a prominent figure on the Right, but it’s also an acknowledgement of what has become common sense. Poll after poll shows that for the first time majorities of Americans support marriage equality, with the highest numbers among young people. As anti-gay legislation is fought out in the courts and in statehouses, it is accompanied by a sea change in public opinion that threatens to make it archaic.

After last summer’s federal court decision striking down California’s Proposition 8, PFAW’s Michael Keegan noticed that Religious Right activists were beginning to admit defeat on gay rights:

This parade of apoplectic anger is nothing new--the Right has fought every step toward acceptance of gay people with similar Armageddon-invoking tirades. What is remarkable about the reaction to the Prop 8 decision is that within the anger are the beginnings of admissions of defeat. The Right has won many important battles against gay rights, but they are losing the war...and they know it.

A few days after Judge Walker's decision, the pseudo-historian David Barton, founder and president of the right-wing group WallBuilders, explicitly described the nervousness that has been behind much of the Right's outrage. The case against Proposition 8, Barton argued, could win in the Supreme Court...so opponents of marriage equality should sacrifice California in order to save anti-equality laws in 31 other states.

"Right now the damage is limited to California only," Barton told Tim Wildmon, President of the American Family Association during a radio interview, "but if California appeals this to the US Supreme Court, the US Supreme Court with Kennedy will go for California, which means all 31 states will go down in flames, although right now this decision is limited only to California...the problem is that instead of California losing its amendment, now 31 states lose their amendment. And that won't happen if California doesn't appeal this.

Last week, I went to a talk with the attorneys arguing the Prop 8 case, Ted Olson and David Boies. Olson said he saw their job as having two parts: presenting the Constitutional case against discrimination in the court of law, and presenting it in the “court of public opinion.”

“If we win this case,” Olson said, “we want people to look at it and say, ‘Of course. It’s about time.’”

Constitutional rights should never be decided by the will of the majority – that’s why we have constitutional rights in the first place. But Olson and Boies are building their case in a country where the rights of gays and lesbians are increasingly accepted as a given. The Religious Right isn’t going to give up its fight against equality anytime soon. But its leaders are beginning to see that they are fighting a losing battle in both the court of law and the court of public opinion.

PFAW

Shameful!

Imagine senators of one party filibustering a judicial nominee who has been hailed as one of his generation’s great legal minds by legal experts of both parties and across the ideological spectrum on the grounds that he is *too* qualified.

Well that's exactly what happened today.

In what could be the most egregious example of the GOP’s partisan obstruction of judicial nominations to date, Senate Republicans today blocked Goodwin Liu from receiving an up or down vote. Liu, a law professor and dean at U.C. Berkeley who as a nominee has the American Bar Association’s highest rating, was nominated for a seat on the 9th Circuit Court of Appeals by President Obama over a year ago, and has since been approved by the Judiciary Committee three times.

His credentials and grasp of the law and Constitution are impeccable. Liu’s only mistake: being too qualified.

At age 40, his confirmation to the 9th Circuit could put him in position to be the first Asian American Supreme Court nominee. Because of his intellectual heft, his commitment to Americans’ constitutional rights and his commonsense understanding of how the law impacts people’s lives, the prospect of Liu’s future elevation, and even his influence on a Circuit Court of Appeals, terrifies corporate special interests and right-wing ideologues ... the same people calling the shots with Republican senators.

Shame on them. The concocted justifications Republican senators used in their opposition to Liu were based on unbelievable distortions of his record by Radical Right activist groups, as well as Liu’s testimony in opposition to Supreme Court Justice Samuel Alito’s confirmation. They rested their opposition on lies because they know that a Liu filibuster makes a mockery of the supposed agreement between parties to employ a filibuster only in “extraordinary circumstances.” Everything about Goodwin Liu’s record and the breadth of his support indicates a legal expert squarely in the mainstream -- the only thing “extraordinary” about him is how good he is, and how deserving he was of confirmation.

Every GOP senator except Alaska’s Lisa Murkowski participated in the filibuster. If one or both of your U.S. senators are Republicans, CALL them right now and let them hear it. Tell them, “shame on you for filibustering Goodwin Liu,” and let them know that you will be working hard to hold them accountable in their state.

Make sure you SIGN our “Stop the Obstruction” petition to the Senate and let senators of both parties know that the continued obstruction of the president’s nominees is hurting our country and will not be tolerated.

We need Republicans to feel the pressure about their judicial obstructions just like they are feeling it about their attacks on Medicare. And Democratic leaders in the Senate need to know that they must be using every tool in their arsenal to combat this obstruction.

PFAW