Yesterday, People For the American Way members participated in a telebriefing to discuss the Supreme Court’s upcoming term and to preview some of the important cases the Court will be hearing this year. The call was kicked off by PFAW President Michael Keegan and moderated by PFAW Director of Communications Drew Courtney. PFAW’s Senior Legislative Counsel Paul Gordon reviewed highlights of his recent report previewing the Supreme Court’s upcoming term and answered questions from members. Also on the call and answering questions were Senior Fellow Elliot Mincberg and Executive Vice President Marge Baker.
Among the cases Gordon previewed were Young v. UPS, Integrity Staffing Solutions v. Busk, Mach Mining v. EEOC, Holt v. Hobbs, and Alabama Democratic Conference v. Alabama / Alabama Legislative Black Caucus v. Alabama. The issues addressed in these cases range from employment discrimination and workers’ rights, to religious liberty and voting rights.
He also discussed potential cases that the Court could still add for this term, which included cases on marriage equality, the Affordable Care Act, and contraception coverage by religious nonprofits—the “sequels to Hobby Lobby.”
Members’ questions focused on how the country can move forward to change some of the more damaging decisions like Citizens United, and what each person could do to effect change and impact the courts. Emphasizing what is at stake this election, both PFAW President Michael Keegan and Gordon called on people to vote in November because “when you vote … for the Senate, you are voting for the next Supreme Court justice.”
Listen to the full audio of the telebriefing for more information.
This is a good day for Americans who care about our federal courts. According to press reports, Judiciary Committee Chairman Patrick Leahy has said that Georgia federal district court nominee Mike Boggs lacks majority support on the committee and that he should withdraw. The New York Times calls the nomination "dead."
Federal judicial nominees routinely - and appropriately - assure senators that their personal feelings and political positions will play no role in their judicial decisions. But this particular nominee did exactly the opposite when running for election as a state judge in 2004. That's when then-Rep. Boggs told voters at a judicial candidates' forum, "I am proud of my record. You don't have to guess where I stand - I oppose same-sex marriages. I supported and authored the Child Protection Act to protect children from predators. I have a record that tells you exactly what I stand for."
This connection - that Boggs himself made - between how he would approach judging cases to his views as a legislator on the legal issues that would be before him as a judge, compelled the Senate Judiciary Committee to examine Boggs' legislative record.
And what a disturbing record that was: He sought to amend the state constitution to forever lock gays and lesbians out of the promise of equality and to prohibit the Georgia legislature from ever extending marriage rights to gays and lesbians. He supported anti-choice legislation and even voted for a bill amendment that would have put abortion providers' lives at risk. He voted in support of having the Confederate battle symbol incorporated into the state flag. He sought to use the power of government to promote religion, church-state separation notwithstanding.
Given his 2004 assurance that his legislative record showed how he would rule as a judge, senators could certainly presume that Boggs has a severely cramped view of constitutional Equal Protection, reproductive rights, and church-state separation. LGBT people, religious minorities, African Americans, and women could not be assured that their basic rights would be recognized and fully protected in his courtroom.
To make things worse, his efforts to explain away his record to the Judiciary Committee raised questions about his candor.
For instance, at his hearing, he assured both Senators Mazie Hirono and Chris Coons that statements he made in 2004 while expressing his opposition to marriage equality about "the dangers that we face with respect to activist judges" were views he held as a legislator, not as a judge. Yet he sounded quite different as recently as November 2011, having been a judge for nearly seven years. At that time, Boggs was promoting himself to a different audience, the Judicial Nominating Commission of Georgia, which was considering recommending to the governor his appointment as a state appeals court judge. When asked then how to improve the efficiency and effectiveness of the legal system, Boggs cited as the problem "judges who abrogated their constitutionally created authority" and "judicial decisions that have ignored and violated the basic tenets of the judiciary."
At his Senate confirmation hearings just a few years later, Sen. Coons asked Boggs to name three or four examples of cases that he'd had in mind when he expressed those concerns in 2011. Boggs admitted that as a legislator in 2004, he considered cases recognizing marriage equality as a state constitutional right as fitting this category, but didn't say what cases he'd had in mind in 2011. In her written follow-up questions, Sen. Dianne Feinstein asked Boggs if he could name any decisions that he believed abrogated the judiciary's constitutionally created authority (using his words). He responded that he could not recall any cases that he had been thinking of at the time.
Yeah, right. Based on what Boggs told the state Commission, he viewed this as extremely serious, going to the very legitimacy of the courts. Yet just a few years later, even after being given additional time to think about it, he could not recall even one case that he'd had in mind. One could be forgiven for believing instead that he actually had in mind the same cases he'd referred to in 2004, and that he was telling the commissioners - and ultimately, Georgia's governor - what he thought they wanted to hear.
His efforts to explain away his votes endangering abortion providers and supporting the Confederate battle symbol were equally not believable, and apparently they were not believed by a majority of committee members. Good for them.
Boggs' disturbing record showed he was unqualified for the federal bench. Today's news shows that a majority of the Judiciary Committee agrees.
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.