Early this week, the Senate is scheduled to hold cloture votes on four judicial nominees, including Timothy Brooks, nominee for the Western District of Arkansas and Pamela Reeves, nominee for the Eastern District of Tennessee. Brooks and Reeves have been waiting for confirmation votes on the Senate floor since October 31 and November 14, respectively.
As we noted earlier this month, Republicans are routinely delaying nominations on the Senate floor by requiring Democrats to invoke cloture on every single judicial nominee and then piling on hours of unneeded “post-cloture debate” for each nominee who is called up for a vote. This practice creates a weeks-long backlog of nominees awaiting votes and prevents the Senate from moving on to other business. Nominees like Brooks and Reeves could have been confirmed within minutes after they were sent to the Senate floor last year. Instead, both of these nominations were sent back to the president in early January at the end of the first session of the 113th Congress to be re-nominated. After further needless delays in Committee, the nominees were finally placed on the Senate calendar only to wait an additional two months for consideration.
After the Senate has finally worked through the backlog of nominees to get to the Arkansas and Tennessee vacancies, Republicans are throwing up additional roadblocks, forcing Senator Reid to file cloture petitions, which will further delay their consideration. These nonsensical delays of well qualified nominees undermine the public’s faith in the Senate and create hardship for those seeking justice in the courts.
In Mother Jones, Stephan Salisbury argues that anti-Muslim race-baiting – popular among the Tea Party Right in 2010 – isn’t actually an effective tactic for winning elections. He looks at some of the most prominent congressional and gubernatorial candidates to hop on the anti-“Ground Zero Mosque” bandwagon and finds that most of them didn’t score enough political points to actually win their elections.
While prominent Muslim-bashers like Rep. Renee Ellmers and Rep. Allen West won seats in Congress, Salisbury points out, many others – including New York gubernatorial candidate Rick Lazio, Tennessee’s Ron Ramsey and Lou Ann Zelinick and Nevada’s Sharron Angle – couldn’t scare up enough Islamophobia to catapult them into elected office.
Of course, it’s encouraging that anti-Muslim scare tactics aren’t powerful enough to win general elections, or even Republican primaries, on their own. But looked at another way, Salisbury’s data is incredibly depressing. The kind of Islamophobic fear-mongering that was so pervasive in the 2010 elections is a variety of ugliness that had, until very recently, existed on the fringiest fringe of the Right. But, in 2010 that ugliness spread from fringe crusaders like Pamela Geller to long-shot Tea Party candidates looking to make a name for themselves to prominent figures on the American Right. The fight over the so-called “Ground Zero Mosque” brought dangerous anti-Muslim rhetoric into the mainstream – and many of those who repeated it were considered not fringe characters but serious contenders for office.
These outspoken anti-Muslim congressional and gubernatorial candidates, even the unsuccessful ones, helped create the echo chamber that made baseless Islamophobia the standard in Republican politics and the right-wing media.
Yes, it’s good news that the base that’s motivated by Islamophobic attacks is relatively small. But it’s stunning that those attacks are accepted in mainstream political discourse at all.
At yesterday’s press conference on Capitol Hill, People For the American Way joined with Rev. Jesse Jackson, 12 other national civil rights organizations and numerous members of Congress to denounce the draconian and suppressive voting measures that have been enacted or are being considered by states across the country.
These laws, which create strict voter ID requirements, will have the effect of disenfranchising over 20 million potential voters who do not have any form of government-issued identification. Voters targeted by this legislation are disproportionately minority, low-income, disabled, elderly or student voters – all populations that the measures’ proponents see as an obstacle to their agenda. Strict voter ID measures have been introduced in more than half of the states so far this year, and Kansas, Tennessee, Texas, South Carolina and Wisconsin have already passed the legislation.
Of course, past investigations of voter fraud in this country have come to a startling conclusion: it doesn’t exist. Even during a five-year campaign by President Bush’s Justice Department to prosecute voter fraud, only a few dozen people were ever convicted. In most cases, they had cast votes without knowing they weren’t eligible.
We believe that it is every eligible American’s constitutional right to cast a vote that counts on Election Day. Efforts to prevent students, minorities, and disabled, elderly or low-income individuals from engaging in our nation’s civic and political life will not be tolerated and are simply not the American Way. People For the American Way is committed to fighting these suppressive voting measures alongside our civil rights allies and will continue to work with our network partners across the U.S. to ensure that every eligible American is able to exercise their constitutional right to vote.
Courtesy of the Lawyer's Committee for Civil Rights Under Law, the following map shows vote suppression legislation by state:
Tennessee really seems to be going down the rabbit hole with their recent anti-gay legislation. Last month, a bill advanced to their state Senate, the “Don’t Say Gay” bill, which would prohibit educators from discussing any sexual orientation other than heterosexuality with students in kindergarten through eighth grade. This not only applies to lessons in classrooms, but to all discussions between educators and students. Any acknowledgement that gay people exist is officially prohibited, a cruel effort to isolate and declare as abnormal any children who are gay or who have gay family members (including parents).
This week, Gov. Bill Haslam signed a bill prohibiting local governments from enacting anti-discrimination laws that are stricter than those in state law. This new law overturns the recent Nashville Metro Council ordinance requiring businesses contracting with the city to prohibit discrimination based on sexual orientation and gender identity. Tennessee state law prohibits discrimination based on race, creed, color, religion, sex, age, or national origin, but that leaves out a number of groups who are still facing discrimination with no legal support.
Haslam told a reporter, "We're not in favor of discrimination in any form at all," but actions speak louder than words, and Haslam’s support of this legislation certainly screams out loud and clear.
Nashville attorney Abby Rubenfeld is currently putting together a lawsuit to fight this legislation. She notes that the bill is homophobic and targeted at LGBT workers, but it would also affect veterans, disabled people, and other groups that aren’t protected by the state anti-discrimination law.
This week, the two most famous arch-conservative Supreme Court Justices openly praised results-based jurisprudence and the legitimacy of bending the law in order to reach the desired result. Coming from Justices who have derided others for allegedly shaping their legal decisions to reach a preferred outcome, this was a jarring example of hypocrisy.
The case of Brown v. Plata involves California's prisons, which are so overcrowded as to violate the Eighth Amendment's prohibition of cruel and unusual punishment. A lower court had ordered California to reduce its prison population by tens of thousands of inmates in order to remedy the constitutional violation. In a 5-4 opinion authored by Justice Kennedy and joined in by the four more progressive Justices, the Supreme Court upheld the lower court order.
The opinion frankly acknowledged that the release of prisoners in large numbers "is a matter of undoubted, grave concern." Nevertheless, after a careful analysis of the law, as well as the state's long history of failing to cure the constitutional violation, the majority concluded that there is simply no other realistic way for California to come into compliance with the United States Constitution.
In their dissent Justices Scalia and Thomas quite frankly acknowledged a fondness for results-based jurisprudence:
There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa. One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageous result.
The law does not exist in a vacuum, and there are circumstances in which common sense and fairness dictate how the law should be interpreted. For instance, in the Ledbetter sex discrimination case, the dissenters correctly looked at the consequences of the majority’s cramped interpretation of the law and saw that it was not in line with the law’s purpose of eliminating sex discrimination in the workplace. Justices Scalia and Thomas joined the flawed majority opinion that ignored the real world impact and thereby violated legislative intent.
The jurisprudence of Justices Scalia and Thomas is littered with, to use their term, "outrageous results" – women who can’t sue for ongoing illegal sex discrimination (Ledbetter), parties whose rights are forever lost because they followed a judge’s incorrect instructions (Bowles v. Russell), or a disabled man who had to crawl up two flights of courthouse stairs who they said could not sue to enforce his rights under the Americans with Disabilities Act (Lane v. Tennessee). It sometimes seems that they actually take pride in not caring about the harsh consequences of so many of their decisions. And now Justice Scalia – who once told law students that "[i]f you're going to be a good and faithful judge, you have to resign yourself to the fact that you're not always going to like the conclusions you reach" – is writing that judges' interpretation of the law should be shaped by the result they want? They should bend the law to reach a foreordained conclusion? The hypocrisy is stunning.
Scalia and Thomas and their arch-conservative colleagues are generally more circumspect when they engage in results-based jurisprudence. For instance, with their votes, the Roberts Court has become notorious for regularly bending the law in order to rule in favor of large corporations, as we saw in Citizens United. But it is nevertheless jarring to see these two Supreme Court Justices openly support blatant results-based jurisprudence.
Conventional wisdom tells us that Independents swing elections. Logic tells us that the two major parties should be trying to court as many Independents as possible. So why are Republicans emphasizing a legislative agenda that falls out of synch with the priorities of most independent voters?
According to recent polling data compiled by CQ Weekly, the views of Independents align more closely with Democrats than with Republicans on social issues such as funding Planned Parenthood. Interestingly, Republicans are pretty evenly split on the issue, and independent voters are in favor of continuing funding. The majority of Independents also believe that gays and lesbians should be allowed to legally marry and that abortion should be legal in all or most cases.
Why, then, are Republicans actively alienating Independents by threatening to shut down the government over issues that they oppose? As noted in the CQ article, One House, Two Agendas [paywall], even Lamar Alexander of Tennessee, who manages communications strategy for Senate Republicans, fears the consequences of this shift in priorities:
“Our focus needs to be on reducing spending,” Alexander said. “We can’t preach the whole Bible in one sermon, so sometimes we have to take it one step at a time.”
Alexander’s views are reflected in the opinions of more libertarian-minded tea party groups. Last November, several tea party leaders and gay conservatives sent a letter to lawmakers asking them not to become distracted by the concerns of social conservatives.
“The tea party movement is a non-partisan movement, focused on issues of economic freedom and limited government,” they wrote. “We urge you to stay focused on the issues that got you and your colleagues elected and to resist the urge to run down any social issue rabbit holes in order to appease the special interests.”
In a recent essay describing a growing coalition between fiscal and social conservatives, PFAW Foundation’s Peter Montgomery explains how the Tea Party, supposedly concerned only about the size and scope of the federal government, is being co-opted by the Religious Right:
Now effectively in the employ of the libertarian David Koch, who founded Americans for Prosperity and chairs the board of its foundation, [Koch political operative Tom Phillips] has deep ties to the evangelical Right, most notably with Ralph Reed, former executive director of the Rev. Pat Robertson's Christian Coalition, who now heads a new entity, the Faith and Freedom Coalition. Reed and Phillips go way back; the two were partners in Century Strategies, the political consulting group through which Reed played a role in the Jack Abramoff bribery scandal. Now, it seems Phillips is partnered with Reed and other Religious Right leaders in a much greater conquest: a merger of the Religious Right and the ostensibly secular Tea Party movement to create an electoral juggernaut that will determine the outcome of the 2012 Republican presidential primary.
Republicans continue to force extreme social issues on the American people, and independent voters are finding it less and less palatable. Hopefully, they’ll get the message.
Now that FEC rules allow political organizations to raise unlimited amounts of funds from individual and corporate donors, just a single individual or a handful of donors can finance their very own 527 Political Action Committee. But this is no longer a hypothetical matter as we are currently witnessing so-called Super PAC’s emerge with just one or a couple of wealthy donors. For example, the Concerned Taxpayers for America has spent close to a half a million dollars attacking incumbent Democratic Congressmen this election year. And according to FEC reports, it raised it’s $500,000 budget from just two donors:
Daniel G. Schuster Inc., an Owings Mills, Md., concrete firm, gave two donations to the group totaling $300,000, new disclosure records show. New York hedge fund executive Robert Mercer gave the group $200,000.
And that's the extent of the financial support reported by Concerned Taxpayers, which says it was formed in September "to engage citizens from every walk of life and political affiliation" in the fight against "runaway spending."
While the Concerned Taxpayers for America just has two individual donors, the 527 organization RightChange.com has only one. According to the Center for Responsive Politics, “Fred Eshelman, the chief executive officer of North Carolina-based pharmaceutical research firm Pharmaceutical Product Development” donated $3.38 million to RightChange.com, which is “almost the entirety of the money the group has raised this year.” So far, RightChange.com has spent $3 million in ads supporting Republicans and attacking their opponents in competitive House and Senate races across the country.
And if you don’t want to funnel your money into a 527, you can just spend the money as an individual directly. In Tennessee’s eighth congressional district, Robert Kirkland spent close to $1.5 million on an independent expenditure campaign supporting his brother Ronald Kirkland in the Republican primary. Unfortunately for him, Ronald Kirkland won less than 25% of the vote and lost to Christian singer and farmer Stephen Fincher.
To the litany of public safety threats resulting from anti-Muslim fear-mongering, add the fact that Justice Department officials have had to spend time writing a brief explaining that Islam is, in fact, a religion. TPM reports on the DOJ’s amicus brief supporting the expansion efforts of the Islamic Center of Mufreesboro, TN. Opponents have claimed that the Islamic Center can’t get a religious permit to build a new mosque because, they say, Islam isn’t really a religion. The Justice Department did a little research:
"To suggest that Islam is not a religion is quite simply ridiculous. Each branch of the federal government has independently recognized Islam as one of the major religions of the world," Martin said in the press release.
The brief painstakingly cites proof, from the Oxford English Dictionary, Supreme Court rulings, presidential proclamations by Clinton and George W. Bush and the writings of Thomas Jefferson, that Islam has long been recognized as a major world religion.
It also notes the definition of religion set forth by other federal courts, including that a belief system must address "fundamental and ultimate questions having to do with deep and imponderable matters" in order to be considered a religion.
In the brief, the DOJ argues that the lawsuit implicates two federal civil rights statutes, the Religious Land Use Act and the Church Arson Prevention Act, which fall under the DOJ's purview. The county, the brief argues, would be in danger of violating the land use act were it to deny building permits for the mosque.
A concerted right-wing misinformation campaign has succeeded in making denial of the scientific consensus about climate change a politically acceptable position. Will denying the existence of one of the world’s largest and diverse religions be next?
President Obama today appointed Elizabeth Warren to oversee the new consumer regulatory agency created by the recently enacted Wall Street Reform legislation.
What’s interesting is that he chose to appoint her to a position that doesn’t require Senate approval.
From the moment he took office, the GOP has pulled out all the stops to obstruct, delay and attack the Obama Administration and the President’s agenda. One of the main weapons in their arsenal has been their ability not to block nominees—they rarely have the votes—but to make confirmation such a time consuming chore as to grind the government to a halt.
Today’s move by Obama is a clear move that he gets it and he’s not going to take it lying down. It sends a strong message that he’s more interested in governing the country than is playing the Republican game of obstruct, obstruct, obstruct.
Senate Republicans and their underwriter, the US Chamber of Commerce, don’t much like this turn of events:
"By not allowing Ms. Warren's nomination to be considered through the regular order of the full Senate confirmation process, the administration has circumvented one of the very few checks on a big new agency that already has been given an unprecedented concentration of regulatory powers," said the Chamber of Commerce's David Hirschmann, in a statement released this morning. "This maneuver is an affront to the pledge of transparency and consumer protection that's purported to be the focus of this new agency."
Republican Senator Bob Corker of Tennessee also pushed back, protesting the administration's "circumventing" of the confirmation process in a letter to the President released shortly after Warren's appointment was leaked last night.
"It is a key responsibility of the U.S. Senate and its committees of jurisdiction to advise and consent and one that I believe was not meant to be abdicated by the Executive Branch's use of appointments," Corker wrote, adding that given the recent creation of the position in question - "unprecedented in the nature of its unfettered and unchecked authorities" - the confirmation process was particularly important.
Can you hear that? We’re playing the world’s saddest song on the world’s tiniest violin, just for them.
Last night, in the latest episode of their passive-aggressive crusade to keep President Obama’s judicial nominees off the bench, the Senate GOP put on a mind-boggling display of obstruction.
As the Senate confirmed Elena Kagan’s Supreme Court nomination, 21 other judicial nominees were waiting for Senate votes. More than half of these nominees had been approved unanimously by the Judiciary Committee, and all had been waiting more than 100 days for confirmation.
After the Kagan vote, Senate GOP leader Mitch McConnell agreed to hold voice votes on four of the stalled nominees, and promised to agree to a vote on another—Jane Stranch, a Tennessee attorney who has been waiting more than a year for confirmation, despite having the support of both of her home state’s Republican senators-- in September.
The GOP sent five nominees back to the White House—meaning that the President will have to renominate them and start the process again.
That left eleven nominees in Senate limbo. Nine of them had received absolutely no opposition from either party in their Judiciary Committee hearings.
In an interview Monday, the National Journal asked McConnell about his party’s obstructionism. “Is the Senate broken?” the interviewer asked. McConnell answered:
No. Members frequently on both sides hold up a nominee because of some concern they have. It is more likely to be done if you are in the minority because the administration is not of your party and less likely to address your concern. This kind of give-and-take I have seen go on before. It is not any more dramatic now than it has been in the past, and this president has not been treated worse than the last one was. But it is always maddening to the majority and maddening to every president.
I must say the president even made it worse by recessing a guy like [Craig] Becker [to the National Labor Relations Board], who was defeated in the Senate. We had a vote. He was defeated on a bipartisan basis. And recessing a guy like [Donald] Berwick [to oversee Medicare and Medicaid] without any hearings at all and with the chairman of the Finance Committee [Max Baucus, D-Mont.] saying he didn't think he should have been recessed. That is not the kind of action that is designed to, shall I say, engender a cooperative reaction on the part of the minority. I think we can statistically show you that it is not worse for President Obama. He hasn't been singled out more for shoddy treatment than it has been in the past.
It’s unclear what “concern” McConnell is referring to in the case of the nine blocked nominees who have received absolutely no Republican opposition. The concern seems to have nothing to do with the nominees at all—but rather with unrelated executive branch nominations that the GOP is seeking revenge for.
And as for McConnell’s claim that “we can statistically show you that it is not worse for President Obama,” the Center for American Progress has a chart for that:
As the Senate prepares to vote this week on the Supreme Court confirmation of Elena Kagan, there is also reportedly a deal in the works to finally confirm dozens of the executive branch and judicial nominees who have been waiting—many of them for months—for votes on the Senate floor.
After seeing only two nominees confirmed during July, Majority Leader Harry Reid, D-Nev., and Minority Leader Mitch McConnell, R-Ky., are discussing terms for advancing at least some of the 84 nominations awaiting floor votes, aides said Monday. “We have a number of nominations that we’re looking at,” said Reid.
But some of the more controversial nominees are unlikely to be confirmed before the Senate returns in mid-September, if then. That may tempt Obama to use recess appointments to fill those vacancies at least temporarily — unless the White House agrees to pass up the opportunity to make recess appointments in exchange for Senate action on some nominees this week.
It’s about time that the Senate gets around to clearing the nominations backlog. But voting on nominees that were reported months ago without any opposition is no great concession by the Republican minority. It’s time to end the charade and the gamesmanship.
Take for example North Carolina judge Albert Wynn, whose nomination to fill a long-vacant seat on the Fourt Circuit Court of Appeals was approved by the Judiciary Committee in an 18-1 vote six months ago, and has been held up by GOP leadership ever since. David Savage at the Los Angeles Times describes the holdup of Wynn’s nomination as part of a political battle similar to “an old family feud”:
The GOP leader had no objection to Wynn. Instead, he said, he was getting back at Democrats who had blocked President George W. Bush's nominees to the same court. "My perspective on the 4th Circuit covers a little longer period of time," McConnell said.
The Senate's dispute over judicial nominees resembles a family feud that stretches over several generations. Judges are being opposed not because of their records, but because of what happened several years earlier to other nominees. Use of the filibuster rule, which the GOP had insisted was unconstitutional several years ago, has become a routine stalling tactic.
If confirmed, Wynn would fill a North Carolina seat on the 4th Circuit that has been vacant since 1994.
Let’s have a vote on James Wynn. Or let’s have a vote on Jane Stranch of Tennessee, nominated to fill a seat on the Sixth Circuit, who has the support of both of her home state Republican Senators. And let’s have a vote on Goodwin Liu, nominated for a seat on the Ninth Circuit, who has endorsements from across the ideological spectrum, including Clint Bolick and Ken Starr.
The debate over judicial nominations has become not about qualifications or the law, or about the urgent needs of the justice system, but about political game-playing. It’s great that the GOP has finally agreed to confirm some nominees who they never objected to in the first place. Maybe now they can move on to having a substantive debate on those, like Wynn, Stranch, and Liu, against whom they continue to use every passive-aggressive rule of Senate procedure.