Filibuster

The Senate is currently debating the nomination of Goodwin Liu to the Ninth Circuit Court of Appeals. Liu is a phenomenally well qualified legal scholar who has support across the political spectrum, as well as among a majority of U.S. Senators. However, because Senate Republican leaders are putting politics over all else, they are set on stymieing the majority and filibustering the nomination. A cloture vote to end this stalling tactic may occur as soon as tomorrow morning.

People For the American Way supports the nomination. We sent a letter this morning that says much of what we have been saying in person on the Hill for over a year. Among other things, the letter states:

Perhaps the most powerful testament to Professor Liu's superb qualifications is the extensive support his nomination has garnered from across the ideological spectrum. It is not only progressive and moderate legal thinkers who admire his work: He has received endorsements from conservatives such as Ken Starr, Solicitor General under President Ronald Reagan; Richard Painter, the chief ethics counsel for President George W. Bush; and Clint Bolick, Director of the conservative Goldwater Institute.

When a judicial nominee attracts such strong support independent of political ideology, you can be confident that he is exactly the kind of mainstream, talented, and fair jurist we need on the federal bench.

Although Liu has the support of a majority of senators, his opponents are working to block his nomination from receiving an up or down vote. Their claim is that Liu's nomination constitutes one of those rare "extraordinary circumstances" warranting a filibuster, under the benchmark developed by the Gang of 14 during the George W. Bush Administration.

By no measure can this nomination be considered to even approach "extraordinary circumstances." Even a cursory look at President Bush's nominees who were approved using that test – those whose nominations were not considered to constitute "extraordinary circumstances" – makes clear that Liu's nomination must be permitted to go forward.

• Pricilla Owen's dissenting positions on the Texas Supreme Court were so extreme that even her fellow conservatives on the Supreme Court in different cases described them with phrases like "an unconscionable act of judicial activism," "disregard of the procedural elements the Legislature established," "def[ying] the Legislature's clear and express limits on our jurisdiction," and "inflammatory rhetoric." Her nomination was not considered extraordinary, and the Senate afforded her an up-or-down vote for a seat on the Fifth Circuit, where she is now serving.
• Thomas Griffith pushed to severely curtail laws ending discrimination against women and girls' participation in school athletic programs, declaring "illegal" a test upheld by all eight of the nation's Circuit Courts of Appeals that had considered the issue. He was also suspended from the DC Bar for failure to pay mandatory Bar dues yet continued to practice law in the District during that time. Published reports and an examination of Utah law indicated that he had been engaged in the unauthorized practice of law in Utah for the four years prior to his nomination. Nevertheless, the Senate did not consider Griffith's nomination extraordinary, and he received an up-or-down vote confirming him to a seat on the DC Circuit Court of Appeals.
• Janice Rogers Brown criticized opposition to the Lochner decision, which began the period when the Supreme Court issued its most pro-corporate rulings—rulings that struck down laws requiring minimum wages, regulating working hours and conditions, and banning improper business practices. In addition, despite several Supreme Court rulings to the contrary, she explicitly suggested that Title VII of the 1964 Civil Rights Act is unconstitutional. Despite this record, her nomination was not considered an "extraordinary circumstance," and the Senate was allowed to cast an up-or-down vote, confirming her to the DC Circuit Court of Appeals.
• William Pryor called Roe v. Wade "the worst abomination of constitutional law in our history" and urged Congress to consider repealing or amending Section 5 of the Voting Rights Act. Despite the significant opposition that these and other extreme positions garnered, his nomination was not filibustered, and he was confirmed to the Eleventh Circuit Court of Appeals.

Each of these nominees attracted substantial controversy and was opposed by numerous civil rights and civil liberties groups, but not one was found to constitute "extraordinary circumstances."

The claim that Goodwin Liu is out of the mainstream as compared to any of these nominees simply does not bear scrutiny. In fact, a fair reading of his work makes clear that Liu is well within the judicial mainstream.

By any standard articulated by either party, Goodwin Liu's nomination deserves a vote on the Senate floor, and he should be confirmed to the Ninth Circuit Court of Appeals.

Tomorrow, we will learn which Republican senators are willing to toss logic, consistency, principles, and the good of the nation's court system out the window in order to score political points against a Democratic president.

Cross-posted on Right Wing Watch

Religious Right and pro-corporate groups failed today to block President Obama’s nominee for U.S. District Court in Rhode Island, John McConnell, from receiving an up-or-down vote in the Senate. The Senate invoked cloture on McConnell’s nomination in a 63-33 vote, defeating the filibuster against McConnell. Filibusters against district court judges are extremely rare—only a handful of District Court nominees have ever faced cloture votes, and none have ever been blocked—and many Republicans previously vowed they would never filibuster a judicial nominee.

Today’s vote came after a long wait for McConnell: according to The Providence Journal, the delay caused by the concerted right-wing effort to block McConnell forced Rhode Island’s chief federal judge to “take the unusual step of reassigning more than two dozen civil cases to judges in New Hampshire and Massachusetts.”

Why the tough fight? McConnell faced virulent opposition from the Chamber of Commerce over his role fighting big tobacco companies and lead paint manufacturers. The Chamber and other groups that oppose corporate accountability found allies in the Religious Right groups that decided to fight McConnell as well.

The Conservative Action Project made McConnell a top target of their efforts. The group includes pro-corporate organizations like the 60 Plus Association, National Taxpayers Union, Americans for Limited Government, Citizens United, and American Tax Reform, along with social conservatives such as the Family Research Council, Traditional Values Coalition, Heritage Action, American Values, Liberty Counsel Action, and Eagle Forum. The Conservative Action Project’s Memo to the Movement [PDF] claimed McConnell was unqualified to serve in the judiciary because he was a trial lawyer with a history of challenging big business.

Eagle Forum derided him as a “pro-choice, anti-business, pro-judicial activism nominee” who “has made numerous anti-business statements.” The Family Research Council slammed McConnell for his ties to the Southern Poverty Law Center, one of the country’s most prominent civil rights organizations, and Phillip Jauregui’s Judicial Action Group said that his link to the SPLC and the American Constitution Society shows he “supports organizations who support homosexual marriage and oppose conservative politicians.”

While the Corporate Right and the Religious Right filibuster of the McConnell nomination failed, many of these organizations will continue to work together to block other qualified judicial nominees and aggravate the country’s burgeoning judicial vacancy crisis.

An ally just sent along this graph showing the progress of women in the federal judiciary over the past 10 years. What’s alarming about it is that, in terms of numbers, there has been very little progress at all:

President Obama’s judicial nominees have been the most diverse group in history. 44% of his nominees are women—twice as many as were nominated under George W. Bush. And 42% of his nominees are African American, Hispanic, or Asian American. But President Obama’s nominees, as diverse a group as they are, just aren’t making it to the courts. Instead, they’ve run into a concerted Republican effort to block every possible judicial nomination, no matter how uncontroversial. This filibuster campaign is not only creating personnel emergencies in courts across the country—it’s stopping qualified women and minorities from bringing a much-needed diversity of experience to the federal bench.

This week, People For and 46 other progressive groups sent a letter to the leaders of the U.S. Senate urging them to end the backlog of judicial nominees before the end of this session of Congress. Republican obstruction has prevented dozens of nominees from even receiving a vote on the Senate floor, leaving the federal court system with over 100 vacancies and the slowing down the process of bringing more diversity to the federal bench. Read the full letter:

Dear Majority Leader Reid and Minority Leader McConnell:

The undersigned organizations strongly urge you to end the troubling backlog of judicial nominees that exists to date in the 111th Congress. The obstruction of many of President Obama’s nominees through filibuster threats and anonymous “holds” is hindering the important work of our judicial branch, particularly in the many areas of our nation that now face judicial emergencies due to unfilled vacancies on the bench.

Throughout the 111th Congress, President Obama has worked with the Senate on a bipartisan basis to select extraordinarily well-qualified judicial nominees who could easily be confirmed by wide margins and begin serving the public, if brought to a vote before the full Senate. Yet a troubling number of these nominees, many of whom have been cleared by the Committee on the Judiciary with little or no opposition, have been blocked from up-or-down confirmation votes for reasons that defy explanation. Indeed, many of President Obama’s judicial nominees who have been confirmed, to date, have been confirmed by unanimous votes – but only after languishing for many months on the Senate floor, raising significant doubts about the legitimacy of the ongoing delays in confirmation proceedings.

Due to arcane floor procedures that allow a single member to impede the important business of the Senate, our judicial branch has reached a state of crisis. Out of 872 federal judgeships, 106 are currently vacant, with 50 of those vacancies now characterized as “judicial emergencies” in which courts are being overwhelmed by filings that cannot be considered. As a result, a growing number of Americans, from all walks of life and across all economic strata, are finding it increasingly more difficult to assert their legal rights and to have their fair day in court.

In the meantime, the Senate is badly failing in its constitutionally-mandated role of considering the nominees that President Obama has selected. Prior to entering its pro forma session, the Senate failed to confirm any of the 23 nominees who are currently pending on the Senate floor, 17 of whom advanced through the committee process with no opposition whatsoever. Moreover, 11 of the pending nominees would fill seats designated as judicial emergencies – and more than half of the pending nominees are people of color, while 10 of them are women, who would bring badly-needed and long-overdue diversity to our judicial branch.

We write to you at a time when our nation faces numerous challenges that cry out for bipartisan cooperation, including major economic challenges and continued international threats. We strongly believe that the continued obstruction of nominations will poison the political atmosphere, needlessly heighten partisan tensions, and make it far more difficult for the federal government to serve the public interest in any respect. These consequences are all but certain to continue into the 112th Congress and beyond.

For these reasons, in the remaining weeks of the 111th Congress, we strongly urge you to work together in a bipartisan fashion to proceed with confirmation votes on the two dozen judicial nominees who remain pending on the Senate floor. Thank you for your consideration.

Sincerely,

AFL-CIO

Alliance for Justice

American-Arab Anti-Discrimination Committee

American Association for Affirmative Action

American Association of People with Disabilities

American Association of University Women

American Federation of Government Employees

American Federation of Teachers

Americans for Democratic Action

Asian & Pacific Islander American Health Forum

Asian American Justice Center

Common Cause

Constitutional Accountability Center

Equal Justice Society

Families USA Foundation

Feminist Majority

Hispanic National Bar Association

Hispanics for a Fair Judiciary

Human Rights Campaign

Japanese American Citizens League

Judge David L. Bazelon Center for Mental Health Law

Lambda Legal

Lawyers’ Committee for Civil Rights Under Law

The Leadership Conference on Civil and Human Rights

League of United Latin American Citizens

Legal Momentum

Mexican American Legal Defense and Educational Fund

NAACP

NAACP Legal Defense & Educational Fund, Inc.

National Asian Pacific American Bar Association

National Asian Pacific American Families Against Substance Abuse

National Asian Pacific American Women's Forum

National Association of Consumer Advocates

National Association of Human Rights Workers

National Association of Social Workers

National Black Justice Coalition

National Congress of Black Women, Inc.

National Council of Jewish Women

National Disability Rights Network

National Employment Lawyers Association

National Fair Housing Alliance

National Partnership for Women & Families

National Urban League

National Women’s Law Center

OCA

People For the American Way

Secular Coalition for America

SEIU

Sikh American Legal Defense and Education Fund

Sikh Coalition

 

The case for keeping the discriminatory Don’t Ask, Don’t Tell became even weaker today, as leaks from a Pentagon study of the policy suggest that the policy could be repealed “with only minimal and isolated incidents of risk to the current war efforts.”

The Washington Post confirmed with two people familiar with the report that the Pentagon study group found overwhelming support or ambivalence to Don’t Ask, Don’t Tell among current servicemembers:

More than 70 percent of respondents to a survey sent to active-duty and reserve troops over the summer said the effect of repealing the "don't ask, don't tell" policy would be positive, mixed or nonexistent, said two sources familiar with the document. The survey results led the report's authors to conclude that objections to openly gay colleagues would drop once troops were able to live and serve alongside them.

One source, who has read the report in full, summarized its findings in a series of conversations this week. The source declined to state his position on whether to lift the ban, insisting it did not matter. He said he felt compelled to share the information out of concern that groups opposed to ending the ban would mischaracterize the findings. The long, detailed and nuanced report will almost certainly be used by opponents and supporters of repeal legislation to bolster their positions in what is likely to be a heated and partisan congressional debate.

In September, when Republicans in the Senate—without a single exception—joined together to filibuster a Defense Authorization bill that included Don’t Ask, Don’t Tell repeal, we compiled a list of prominent arguments for and against repeal. The list was lopsided, to say the least, with military leaders and the American public favoring repeal and right-wing leaders railing against it. Since then, two federal judges have found the policy unconstitutional.

Jen wrote yesterday on the prospects of the Senate passing Don’t Ask, Don’t Tell repeal during Congress’ lame duck session this year. Sen. John McCain, who is leading the fight to keep Don’t Ask, Don’t Tell, has called the Pentagon’s study “a political ploy.” But, the Post reports, at least 10 senators of both parties say they’re waiting to read the report, which will be published on Dec. 1, before deciding how to vote on DADT repeal. Maybe today’s news—suggesting that the forthcoming report will corroborate what experts have been saying all along in the DADT debate—will help them along in their decisions.
 

Already under fire for mismanaging the Republican National Committee, Chairman Michael Steele displayed his bizarre and badly-uninformed take on the election yesterday on Meet the Press. Not only is there overwhelming evidence that groups that do not disclose the sources of their funding are participating in the election at unprecedented levels, but the Citizens United and SpeechNow decisions have allowed such groups to be more powerful and less transparent. When asked about the flood of money from outside groups in the election, Michael Steele inexplicably responded: “I don’t know what they’re talking about. No one’s produced one shred of evidence that any of that’s happening.”

Even though Republicans twice voted lockstep in the US Senate to filibuster the DISCLOSE Act, which would have made these groups reveal their donors, Steele tried to portray the Democrats as the opponents of disclosure legislation. In a disheartening lack of follow-through Gregory did not challenge Steele on this statement.

Steele ended the segment by calling for transparency and legislative fixes if necessary: “Absolutely, I am all for transparency, I think it is an appropriate part of the system, it instills the trust that people have in the system and it also avoids questions like this because that information is out there…but the law is what the law is right now, and if people are that bothered by it then the Congress needs to change it.”

For so-called “Super PACs” that are required to disclose their donors, like American Crossroads and the First Amendment Alliance, we have ample evidence that corporate and special interest money is flowing in. A recent New York Times report also demonstrated that corporate money is flowing into the US Chamber of Commerce’s electoral spending. But for 501c4 “social welfare” organizations, such as Crossroads GPS and the American Action Network, we do not know the identity of the donors.

Gregory pointed out to Steele that by law 501c4 groups “do not have to disclose,” and asked, “is that a problem in our politics when you can put a great deal of money into a campaign without disclosing your agenda or who you are?” Steele then said that Congress should “put up” and “change the law,” but that the lack of disclosure may not be a problem anyway: “we haven’t seen any evidence that it is, why are you saying that it is a problem?”

Polling confirms that the public is “bothered by it.” Numerous polls reveal that the vast majority of Americans disagree with the Citizens United decision, regardless of their political party, and oppose the inundation of special interest money in elections. Will Steele now call upon Republicans in Congress to end their filibuster of the DISCLOSE Act and stop resisting transparency in the system?

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When the Supreme Court decided earlier this year to allow corporations to spend unlimited amounts of money to influence elections, the justices in the majority (save Justice Clarence Thomas) took care to note that “prompt disclosure” of political spending would allow citizens to hold candidates, and their funders, accountable. It’s a nice idea…but things haven’t exactly worked out that way.

Instead, Public Citizen reported last week, in the first election after Citizens United, groups funneling money to political activities have increasingly been hiding where their money comes from.

Only 32 percent of the organizations broadcasting electioneering communications in the 2010 primary season revealed in their filings with the Federal Election Commission (FEC) the identities of donors funding their advertisements, according to Public Citizen’s analysis of FEC filings. In contrast, nearly 50 percent revealed their donors in the 2008 election cycle, and close to 100 percent did so in the 2004 and 2006 cycles. Electioneering communications are campaign ads run shortly before elections that focus on candidates but don’t expressly urge a vote for or against them.

Only 10 percent of Republican groups disclosed their funders, in contrast to 50 percent of Democratic groups.

This shouldn’t come as a surprise. As Target learned the hard way this summer, shareholders, consumers, and voters aren’t particularly keen on large corporations bankrolling political campaigns. Funneling money through secretive groups allows corporate political spenders to have the best of both worlds: they can fund the campaigns of candidates favorable to them, and never have to be held accountable.

An attempt this summer to patch up the loophole that allows corporations to keep their election spending secret ran up against stiff opposition from corporate lobbyists and a unified filibuster from the GOP. President Obama summed up the result in his weekly radio address Saturday:

What is clear is that Congress has a responsibility to act. But the truth is, any law will come too late to prevent the damage that has already been done this election season. That is why, any time you see an attack ad by one of these shadowy groups, you should ask yourself, who is paying for this ad? Is it the health insurance lobby? The oil industry? The credit card companies?

But more than that, you can make sure that the tens of millions of dollars spent on misleading ads do not drown out your voice. Because no matter how many ads they run – no matter how many elections they try to buy – the power to determine the fate of this country doesn’t lie in their hands. It lies in yours. It’s up to all of us to defend that most basic American principle of a government of, by, and for the people. What’s at stake is not just an election. It’s our democracy itself.

This fall, the Senate will have another chance to bring the DISCLOSE Act to a vote. As the New York Times pointed out yesterday, the vote should be a no-brainer for moderate senators like Susan Collins and Olympia Snowe of Maine:

The Citizens United decision, paradoxically, supported greater disclosure of donors, but Senate Republicans have filibustered a bill that would eliminate the secrecy shield. Just one vote is preventing passage. That act is coming back for another Senate vote. The two Republican senators from Maine, Susan Collins and Olympia Snowe, might want to read a recent poll by the Maine Citizens for Clean Elections, which showed that 80 percent of the state’s voters support public disclosure.

In a poll we commissioned in June, 85% of Americans said that corporations already have too much influence over the political process. Voters want information. Will Congress provide it?
 

The Don’t Ask, Don’t tell policy has been denounced by a vast majority of Americans, rejected by the leaders of the military, and, if Republicans decide not to filibuster, will be finally on its way out in this year’s Defense Authorization bill. But, for now, the policy is still driving talented and dedicated Americans away from serving in the armed forces.

The New York Times yesterday interviewed several gay and lesbian current and former West Point cadets on the pressures of serving their country while hiding their identities. Katherine Miller is a 20-year-old cadet who left West Point this month after two years of being unable to follow both the Don’t Ask, Don’t Tell policy and the Cadet Honor Code to “not lie, cheat, steal or tolerate those who do.”

“It was a whirlpool of lies — I was violating the honor code every time I socialized,” she said in an interview.

Ms. Miller, who ranked 17th in her West Point class, wrote in her Aug. 9 resignation letter: “I have lied to my classmates and compromised my integrity and my identity by adhering to existing military policy. I am unwilling to suppress an entire portion of my identity any longer.”

The Servicemembers Legal Defense Network has been releasing a letter a day this week from family members of those who have been harmed by Don’t Ask Don’t Tell to the Pentagon officials charged with surveying straight military spouses about the policy. Pam’s House Blend is posting all the letters.

The parents of an Army sergeant who was fired because of Don’t Ask, Don’t Tell wrote:

As parents, this law offends us deeply. It tells us that our gay and lesbian children who are in uniform and putting their lives on the line every day, saving lives, are not good enough to serve their country. The law discriminates against family members, forcing fear and anguish into their lives. Our sons and daughters should be judged on their performance, loyalty to country and bravery, not their sexual orientation.

The partner of a Navy captain who survived the Sept. 11 attack on the Pentagon wrote:

As the numbness began to wear off, it hit me how incredibly alone I would have been had Joan been killed. The military is known for how it pulls together and helps people; we talk of the "military family," which is a way of saying we always look after each other, especially in times of need. But, none of that support would have been available for me, because under DADT, I didn't exist.

In fact, I would have been one of the last people to know had Joan been killed, because nowhere in her paperwork or emergency contact information had Joan dared to list my name.

Congress and the military may be on the path to repealing DADT…but as they meander down that path, injustices continue to pile up.
 

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.

CQ reports:

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.