A historic nomination by President Obama is being considered by the Senate Judiciary Committee: Diane Humetewa is poised to become the first Native American woman on the federal judiciary. Humetewa is a highly qualified nominee with bipartisan support. She was nominated by President Obama with Senator McCain ’s recommendation to serve on the federal judiciary and was previously appointed by President Bush as the U.S. Attorney for the District of Arizona.
The Senate Judiciary Committee had Humetewa’s confirmation hearing on January 29, and her committee vote has been scheduled for this Thursday, February 13. But there is already a growing line of nominees stalled on the Senate floor unable to get a confirmation vote. On January 29, 29 nominees were stalled, and by February 6 the waiting list grew to 32 nominees who are stuck at Senate floor step in the confirmation process. Humetewa and her five fellow Arizona nominees will be added to the end of this already unacceptably long line.
In the meantime, Arizona needs qualified judges like Humetewa to fill its six federal judicial vacancies.
If Diane Humetewa is confirmed, she will be the:
First Native American woman to serve as a judge in a federal court;
Third Native American to be a federal judge; and
Only Native American in active service on the federal bench.
Diversity on the federal bench is always important, and Indian legal advocates and tribal leaders have emphasized the need for federal judges who understand Indian Law in particular.
Many Americans know little more about the complexities of Indian tribal laws—and their unique relationship to state and federal laws. Indian sovereign authority, recognized by federal law, extends to the Indian tribal courts that adjudicate Indian affairs-related matters. Some law firms have a specialized practice area in Indian law. Some law schools, such as Arizona State University’s Sandra Day O’Connor College of Law where Humetewa is a professor, have an Indian legal program “to promote an understanding of the differences between the legal systems of Indian Nations and those of the state and federal governments.”
“Indian legal experts have long said that tribal law gets shortchanged in the federal legal arena because so few judges are well-versed and experienced in it. This is one reason why federal cases are often harmful to tribal and Indian interests, according to many tribal analyses,” reported Indian Country Today after Republican Senators blocked Avro Mikkanen, a Native American previously nominated by President Obama to the federal judiciary.
The National Congress of American Indians applauded the nomination of Diane Humetewa and particularly noted her firsthand experience in federal Indian law. Humetewa’s Indian law background includes her work as an attorney on the U.S. Senate Indian Affairs Committee and an Appellate Judge on the Hopi Appellate Court.
This is an important nomination for which President Obama—and all Americans—should be proud. The Judiciary Committee should act expeditiously on this opportunity to make this federal judicial nomination a historic confirmation. That means that Republicans should not demand a needless delay in the committee vote as they have done in all but five cases since Obama became president. It also means the full Senate should finally be allowed to hold confirmation votes on the 32 nominees ahead of Humetewa and her fellow Arizonans.
On January 13, the Senate confirmed Judge Robert Wilkins to sit on the U.S. Court of Appeals for the D.C. Circuit. So far, despite a growing backlog of judicial nominees, he is the only judge to have been confirmed this year.
There are currently 96 vacancies in federal courts across the country. Thirty-nine of them have been officially designated “judicial emergencies” by the Administrative Office of U.S. Courts, indicating that there are too few judges available to handle the court’s workload. This isn’t a built-in feature of the judicial system. In fact, the Senate could cut the judicial vacancy rate by one third today.
There are 32 federal judicial nominees who have been approved by the Judiciary Committee and are waiting for Senate confirmation votes – enough nominees to fill one-third of the country’s judicial vacancies and reduce the number of judicial emergencies by a quarter. All but three nominees cleared the Judiciary Committee with strong bipartisan support, most unanimously. The Senate could confirm all 32 in an afternoon if Republicans would agree to hold simple yes-or-no confirmation votes on their nominations. They could even confirm all 32 in less than five minutes by holding a unanimous consent vote.
But Senate Republicans still seem to be uninterested in confirming nominees to carry out the business of the nation’s courts, even in the many cases where nominees have been recommended and supported by Republican senators.
Since the Senate was forced to change the rules of the filibuster in response to Republican intransigence, the GOP has retaliated by obstructing nominations in other ways. One of these has been demanding that each confirmation vote take the maximum amount of time possible: Senate rules allow for “post-cloture debate” after a filibuster has been broken – 30 hours of floor time for appeals court nominees and two hours for district court nominees. If Republicans forced the Senate to take the maximum amount of time on all 32 nominees currently waiting for votes, it would take the Senate 204 hours to clear the backlog.
Those 204 hours would add up to five weeks of full-time work: five weeks in which the Senate wouldn’t be able to do anything else – not immigration reform, not a debt ceiling deal, not an update to the Voting Rights Act.
The Senate could use five weeks of its time this year to confirm judicial nominees. Or, Senate Republicans could agree to confirm all 32 nominees in five minutes, cut the number of judicial vacancies by a third, and move on to other business.
PFAW has launched a petition to urge Senators to address the judicial nominations crisis and stop the obstruction of judicial nominees .
"It has never yet been discovered how to make a man unknow his knowledge, or unthink his thoughts."
--Tom Paine, The Rights of Man
"A house divided against itself cannot stand. I believe this government cannot endure, permanently, half slave and half free. I do not expect the Union to be dissolved--I do not expect the house to fall--but I do expect it will cease to be divided. It will become all one thing or all the other."
--Abraham Lincoln in his "House Divided Speech"
United States District Court Judge Robert J. Shelby's masterful December 20, 2013 decision striking down Utah's ban on same-sex marriage is headed to the Supreme Court. The Tenth Circuit Court of Appeals, which takes cases from Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah, refused to stay the decision and nearly 1,000 jubilant gay and lesbian couples have married in the state in just over a week.
The outbreak of marriage equality in conservative Utah is another huge and momentous crack in the crumbling wall of marriage discrimination against gay Americans. So the Attorney General of the state is preparing a last-ditch appeal to the Supreme Court to turn back the mounting tide of equal rights and freedom.
The state's petition will first reach Associate Justice Sonia Sotomayor, who oversees cases in this group of states. She will be able to either decide the petition herself or refer it to the full Court. If she rejects the petition, as she is likely to do, Utah can appeal to the full Court.
Those people who thought the Court could buy some time after its electrifying 5-4 decision in June striking down a key part of the federal Defense of Marriage Act misunderstand the logic of constitutional freedom. The phony alibis for marriage discrimination have fallen away, and the Court's decision in United States v. Windsor leaves no doubt: gay people have an equal right to marry in the United States of America and the laws standing in the way impose irrational discrimination.
One delicious irony about Judge Shelby's decision is that he freely quoted Justice Antonin Scalia's doleful dissenting opinion in the Windsor case, which repeatedly predicted -- just as Scalia has been warning all along in other gay rights cases, like Lawrence v. Texas (2003) -- that the Court's decision to defend the equal rights of gay Americans would inescapably lead to the downfall of marriage discrimination. Judge Shelby wrote: "The court agrees with Justice Scalia's interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law."
There should be nothing surprising about either Justice Scalia's gloomy reactionary lament in Windsor or the fact that his words are coming back to haunt him now. As we pointed out several months ago in this PFAW Report, Equal Protection or 'Social Tradition': The Supreme Court's Test in the Marriage Cases," Justice Scalia chastised Justice O'Connor back in 2003 for voting in Lawrence v. Texas to strike down anti-sodomy laws because they do nothing other than legislate "moral disapproval" of other people's private and consenting conduct. Scalia angrily observed that "'preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples." In other words, if we can't put gay people in jail because we disapprove of their relationships, how will we stop them from marrying? As always, Justice Scalia's intellectual rigor and candor, from the other side of the barricades, have proven to have great predictive power about the unfolding of the law.
Still, it is not entirely clear what will happen on the Court in response to Utah. It requires four Justices to vote to grant a Cert petition and hear a case. Undoubtedly the hard Right of the Court -- Justices Scalia, Clarence Thomas, and Samuel Alito -- will feel Utah's pain intensely, and Chief Justice John Roberts is likely to want to join them, although he may count the votes and decide not to test Justice Anthony Kennedy's willingness to vote with the liberals to wipe away the stain of marriage discrimination.
After all, Justice Kennedy's reputation as a thoughtful figure on the Court has essentially been made by authoring the majority opinion in a series of brilliant decisions enunciating the equal rights of gay Americans: Romer v. Evans (1996), Lawrence v. Texas (2003), and most recently United States v. Windsor (2013). In Windsor, Justice Kennedy wrote that the "principal purpose" of the Defense of Marriage Act was "to impose inequality" and to put gay people in "a second-tier marriage," locking them out of hundreds of valuable federal benefits and rights. Significantly, he wrote that this legislation not only "demeans the couple" but "humiliates tens of thousands of children now being raised by same-sex couples." The table may now be set for another 5-4 gay rights decision that makes Justice Kennedy an historic figure.
If Justice Kennedy and the moderates can indeed count to five on the big question, one or more of them might even provide a vote for cert, on the theory that the country has hit a tipping point, with marriage now available to gay people in 17 states and the District of Columbia and public opinion racing ahead to full equality. It may be time to do what the Court did in Loving v. Virginia (1967), when it told the truth about "white supremacy" and wiped out the anti-miscegenation laws that made it a crime for Richard and Mildred Loving to marry.
Still, 33 states are blocking the courthouse door for gays seeking to wed and Justice Kennedy did sprinkle lots of pro-states' rights language in his dissenting opinion in Hollingsworth v. Perry (2013), Windsor's companion decision which punted on the merits of marriage discrimination. So the wheel is still in spin during this go-round.
But, as we stated in the "Equal Protection or 'Social Tradition'" Report, the overall dynamic of freedom and equality has been unleashed for our gay and lesbian citizens, and it will be nearly impossible to rewind the tape. On national marriage equality, it is just a matter of when -- not if. There is no way to get this movement or intelligent jurists to unthink their thoughts about fundamental rights, and ultimately, a country divided over a basic right like marriage for millions of people, can't stand. All signs point to equal rights and liberties for gay people in America.
This article originally appeared on The Huffington Post.
Adding to this week’s great news on marriage equality, today U.S. District Court Judge Robert J. Shelby struck down Utah’s same-sex marriage ban, which was put into the state constitution by referendum in 2004.
One of the far right’s standard attacks on the increasing number of judicial opinions striking down discriminatory marriage laws is that judges are “redefining marriage” and “usurping the legislature.” No doubt they will do so again in this case. Fortunately, Judge Shelby opens his opinion with a brief but important explanation of how the American constitutional system works:
The issue the court must address in this case is therefore not who should define marriage, but the narrow question of whether Utah’s current definition of marriage is permissible under the Constitution.…
[T]he legal issues presented in this lawsuit do not depend on whether Utah’s laws were the result of its legislature or a referendum, or whether the laws passed by the widest or smallest of margins. The question presented here depends instead on the Constitution itself…
In his opinion, Judge Shelby also takes apart the harmful, bogus argument that preventing same-sex couples from marrying somehow “elevate[s] the status of opposite-sex marriage”:
Rather than protecting or supporting the families of opposite-sex couples, Amendment 3 perpetuates inequality by holding that the families and relationships of same-sex couples are not now, nor ever will be, worthy of recognition. Amendment 3 does not thereby elevate the status of opposite-sex marriage; it merely demeans the dignity of same-sex couples. And while the State cites an interest in protecting traditional marriage, it protects that interest by denying one of the most traditional aspects of marriage to thousands of its citizens: the right to form a family that is strengthened by a partnership based on love, intimacy, and shared responsibilities. The Plaintiffs’ desire to publicly declare their vows of commitment and support to each other is a testament to the strength of marriage in society, not a sign that, by opening its doors to all individuals, it is in danger of collapse. (Emphasis added.)