Fair and Just Courts

Rubio Holding Up Nomination of Openly Gay African American Florida Judge

Sen. Marco Rubio of Florida has for months been single-handedly holding up the nomination of William Thomas, an openly gay African American Miami judge, to a federal district court.

Rubio’s indefinite hold on Thomas’ nomination is one of the most egregious examples yet of Senate Republicans using the obscure “blue slip” procedure to prevent home-state judicial nominees from even having a hearing before the Senate Judiciary Committee.

Under a Senate custom that has varied over time Judiciary Committee Chairman Patrick Leahy will not advance a nominees’ consideration --  won’t even hold a hearing, let alone take a vote -- until both of that nominee’s home-state senators return a “blue slip” giving their permission for a nomination to go forward. The blue slip doesn’t indicate a senator’s approval of the nominee – the senator is still free to vote against the nominee and to lobby their fellow senators to do the same.  It just means that the nominee can be considered by the Judiciary Committee and then the full Senate. But if just one senator doesn’t return a blue slip, the nomination won’t see the light of day.

Republican senators have been routinely using this tactic of withholding blue slips in order to slow-walk President Obama’s judicial nominees. Currently, five nominees are being held back because one or both senators have refused to return blue slips. And all are women or people of color.

Because the blue slip process is secretive and little-known, senators are often able to get away with holding nominees this way with little public pressure and no public explanation.

Rubio, however, faced pressure from the Florida legal community in recent weeks for his failure to return blue slips for Thomas and another Florida nominee, Brian Davis. The senator finally gave in under pressure and allowed Davis’ nomination to go forward, but is digging in his heels on his blockade of Thomas.

Rubio’s stated reasons for blocking Thomas’ nomination are exceptionally flimsy. He has cited  two cases where he claims Thomas gave insufficiently harsh sentences in criminal trials; in one case, even the prosecutor has defended Thomas’ judgment and a local judge has written to Rubio to correct the record. In the other case the senator cites, Judge Thomas sentenced the defendant to death, which Rubio seems to think was insufficiently harsh. It is clear that there is no merit to the senator’s claims. Holding hearings on this nominee would help clarify that, if they were allowed to take place.

The real reason for Rubio’s blockade and his smear of Judge Thomas’ character, writes Miami Herald columnist Fred Grimm, is plain and simple “crass Tea Party politics.”

Rubio has stated no compelling reason why Thomas should not have a hearing before the Judiciary Committee, where he can answer any of Rubio’s alleged concerns in the public record. 

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Senate Confirms First Ever Openly Gay Circuit Court Judge

The Senate today confirmed Justice Department attorney Todd Hughes to a federal appeals court, making him the highest-ranking openly gay federal judge in U.S. history.

President Obama has nominated more openly gay men and women to the federal courts than all his predecessors combined – by a long shot. So far, the Senate has confirmed seven openly gay Obama nominees to federal district courts. Before Obama’s presidency, there had been just one openly gay federal judge, Clinton nominee Deborah Batts.

Two other openly gay district court nominees are still in committee, but one of them –openly gay district court nominee, Florida’s William Thomas – is currently being held up indefinitely by Sen. Marco Rubio.

But today, the Senate’s attention is on Todd Hughes, who will be the newest judge on the Federal Circuit. The Washington Post outlines Hughes’ impressive credentials:

Hughes, who has served as deputy director of the commercial litigation branch of the Justice Department's civil division since 2007, has specialized in the kinds of issues that come up before the bench on which he will soon sit. Unlike the other 12 Circuit Courts of Appeals, the Federal Circuit specializes in a handful of designated issues including international trade, government contracts, patents, trademarks, veterans' benefits, and public safety officers' benefits claims. Hughes could not be reached for a comment.

Geovette Washington, who is the Office of Management and Budget's general counsel and has been friends with Hughes since they attended law school together, described him as "a problem solver" who "can do very complicated constitutional issues," but also brings a degree of pragmatism to cases.

"I have always been amazed by how intelligent he is, but also how practical he is," she said, adding that Hughes is well prepared for the Federal Circuit because he's appeared before it so many times. "He's dug in and done the hard work on those issues."

 

 

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DC Circuit Nominee Nina Pillard's Broad Bipartisan Support

Georgetown Law professor Nina Pillard, who has had a long and impressive career in law and public service, was approved today by the Senate Judiciary Committee to serve on the Court of Appeals for the District of Columbia. Her nomination now goes to the full Senate.

Scores of people and organizations who have worked with Professor Pillard or observed her work have written to the Senate in support of her nomination. Her supporters include:

Alumni of the Virginia Military Institute, which Pillard helped open to women:

VMI gauges its success as an institution by measuring the societal contributions of its alumni. Professor Pillard would rank high for her work to open VMI to female cadets. The case was initiated by the George H.W. Bush Administration and made its way to the Supreme Court during Professor Pillard’s tenure at the office of the Solicitor General of the United States. Professor Pillard drafted the five Supreme Court briefs for the United States and her winning arguments opened VMI’s doors for women who have become leaders in the armed forces, elsewhere in public service, and in the private sector.

Josiah Bunting III, superindent of the Virginia Military Institute when women were first admitted:

During the course of the United States v. Virginia case, I was impressed by Pillard’s fairness and rigor. She respected others’ strongly held views about male-only education at VMI, and I always felt that while we had opposing positions at the time, she comported herself with integrity and understanding — qualities that distinguish the best judges at all levels.

A bipartisan group of former attorneys of the Justice Department's Office of Legal Counsel, where Pillard served for two years:

We believe that Ms. Pillard has the skill, character, and objectivity that would make her a superlative judge on the D.C. Circuit. She was a respected leader and trusted advisor in OLC, valued for her fair-minded and meticulous approach to legal questions of all sorts. She is an exemplary nominee whom we wholeheartedly endorse.

Dozens of retired members of the armed forces:

Our experience advocating for the full participation of women in the armed forces has shown us that women, indeed, are suited for rigorous military training, service, and leadership. Our military and our nation benefit when both women and men are able to fully contribute to the defense of our country. We support Professor Pillard’s nomination because her accomplishments and credentials demonstrate that she has the qualifications to be a federal
appellate judge, and because her dedication to principles of equality demonstrates that she will be a great one. We urge you to give her a swift and fair hearing, and vote to approve her nomination.

The deans of 24 top law schools:

In her legal advocacy and scholarship, Professor Pillard shows a clear understanding offundamental distinctions between the roles of courts and the political branches, and between law and culture, morality, politics or other important sources ofnorms that guide and constrain human behavior. Throughout her work, she has shown an appreciation ofnuance and respect for opposing viewpoints, grounded in a profound commitment to fair process and fidelity to the law.

In short, Professor Pillard is a talented advocate, a brilliant legal mind, a sensible and moderate problem solver, and a careful thinker who has devoted her career to public service and work for others. We wholeheartedly urge that you confirm her to the D.C. Circuit.

Prominent prosecutors and law enforcement officials:

We urge her  confirmation because she is unquestionably eminently qualified, and is a sensible and fairminded lawyer and scholar who has worked extensively with law enforcement in her career. She brings to the bench sensitivity to the compelling need for effective and legitimate law enforcement in the modern era. She stands for fidelity to the law above all, and has demonstrated an unwavering commitment to the important, albeit limited, role of the courts in our federal system

William S. Sessions, director of the FBI under Ronald Reagan and George H.W. Bush:

I believe that Ms. Pillard has had invaluable work experience that makes her especially well-suited to the bench. While I do not know Ms. Pillard personally, others in the law enforcement community whom I know and respect are supporting her, and their views, combined with her superb experience and qualifications, convince me that she would make an excellent judge, especially on the DC Circuit, which requires someone with such experience and qualifications.

Viet Dinh, conservative scholar who served as assistant attorney general in the George W. Bush administration:

Based on our long and varied professional experience together, I know that Professor Pillard is exceptionally bright, a patient and unbiased listener, and a lawyer of great judgment and unquestioned integrity. We certainly do not agree on the merits of every issue, but Nina has always been fair, reasonable, and sensible in her judgments. She approaches faculty hiring, teaching and curriculum, and matters of faculty governance on their merits, without any ideological agenda--at times even against the tide of academic popularity to defend and respect different views and different types of people.

As we do not share academic specialties, I have not studied Professor Pillard's writings in full, but I know her to be a straight shooter when it comes to law and legal interpretation. She is a fair-minded thinker with enormous respect for the law and for the limited, and essential, role of the federal appellate judge-- qualities that make her well prepared to taken on the work of a D.C.
Circuit judge. I am confident that she would approach the judicial task of applying law to facts in a fair and meticulous manner.

The Women's Bar Association of the District of Columbia:

Ms. Pillard’s record of achievement, and unanimous rating of Well-Qualified, the highest rating available, from the ABA’s Standing Committee on the Federal Judiciary, reflects her significant talents as an appellate litigator and scholar. Her legal career is remarkable for her accomplishments and the breadth and depth of her experience, and her reputation for fairmindedness, collegiality, and dedication to principles of equal justice is well founded. 

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What the GOP Isn't Saying About the D.C. Circuit's Caseload

The newest GOP line on the DC Circuit caseload ignores the one statistic cited by an official of the Administrative Office of U.S. Courts.
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DC Circuit Court of Appeals Nominee Nina Pillard: 10 Things You Should Know

As the Senate Judiciary Committee prepares to vote on her nomination, here are 10 things you might not know about Professor Pillard.
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A Powerful Call to Support Nina Pillard for the D.C. Circuit

The Virginia Military Institute's former superintendent explains why she'd make a terrific judge.
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Senate Hearing Held on Bill to Add New Judgeships

GOP criticism of the bill - which was based on nonpartisan expert recommendations - did not hold water.
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Warren Warns of ‘Corporate Capture of Federal Courts’

At an AFL-CIO convention this weekend, Massachusetts Sen. Elizabeth Warren called out the increasingly pro-corporate lean of the U.S. Supreme Court. Politico reports:

On the opening day of the AFL-CIO’s convention, Warren — the highest-profile national Democrat to address the gathering here — warned attendees of a “corporate capture of the federal courts.”

In a speech that voiced a range of widely held frustrations on the left, Warren assailed the court as an instrument of the wealthy that regularly sides with the U.S. Chamber of Commerce. She cited an academic study that called the current Supreme Court’s five conservative-leaning justices among the “top 10 most pro-corporate justices in half a century.”

“You follow this pro-corporate trend to its logical conclusion, and sooner or later you’ll end up with a Supreme Court that functions as a wholly owned subsidiary of Big Business,” Warren said, drawing murmurs from the crowd.

The study that Warren was referring to is a Minnesota Law Review study that found that the five conservative justices currently on the Supreme Court have sided with corporate interests at a greater rate than most justices since World War II. All five were among the ten most corporate-friendly justices in over 50 years. Justice Samuel Alito and Chief Justice John Roberts were the top two.

The Supreme Court majority’s consistent twisting of the law to put the interests of corporations over those of individuals is one of the main characteristics of the Roberts Court, but it is not the only extremely influential court with such a pro-corporate bent. In fact, the Court of Appeals for the District of Columbia Circuit, to which President Obama has nominated three highly qualified candidates, has been following the same trend, also because of the influence of judges named by George W. Bush.  This is the court whose ultra-conservative justices declared that cigarette label warning requirements violate the free speech rights of tobacco companies and that requiring that employers inform employees of their right to unionize violates the free speech rights of the corporations.

While there is not currently a vacancy at the Supreme Court that could affect its balance, there are three at the DC Circuit.  That is why Senate Republicans are working so hard to keep them empty.

PFAW

DC Circuit Court Activist Toolkit

In June 2013, President Obama nominated three extremely well-qualified people to fill the three vacancies on the DC Circuit Court of Appeals, a court that has been deemed “the second most important in the United States.”  As the nominees - appellate attorney Patricia Millet, Georgetown law professor and appellate advocate Cornelia “Nina” Pillard, and D.C. District Court judge and former public defender Robert Wilkins - make their way out of the Senate Judiciary Committee and towards the Senate floor, Senate Republicans are threatening to ramp up their partisan gridlock by blocking votes on any of them.

The far right has accused the president of trying to “pack” the courts just for making nominations to existing vacancies, as the Constitution calls for.  Senate Republicans have even introduced a bill to eliminate the three judgeships, just to keep President Obama from filling them.

In anticipation of the fight we expect to see this fall, People For the American Way has drafted an activist toolkit for concerned citizens across the United States who understand the importance of the courts, and who know we must stand up against Republican obstruction. Check it out here:

www.pfaw.org/DCCircuitToolkit

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Scalia Claims Courts "Invent New Minorities"

Scalia tells the Federalist Society that "it's not up to the courts to invent new minorities that get special protections."
PFAW Foundation

Tell the GOP: Yes or No Votes for Obama’s DC Circuit Nominees!

Now that we’re well into President Obama’s fifth year in office, there are no prizes for guessing what the GOP’s response is to a diverse slate of nominees to the critical DC Circuit Court of Appeals.

Obstruct. Obstruct. Obstruct.

Even before they were nominated, Republican Senators were laying the groundwork to block anyone nominated to the circuit. Now that President Obama has nominated three unquestionably qualified jurists with broad support from across the ideological spectrum…Republican leaders are still intent on denying them simple yes-or-no votes.

We’ve created a simple graphic to share on Facebook to let Republicans know you’re watching how they treat this diverse set of nominees. Click here to share.


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GOP Puts Politics Above Governance at First DC Circuit Committee Vote

Committee Republicans recycle their old caseload argument to justify a party-line vote against the first of three DC Circuit nominees.
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Large and Diverse Group Urges Senators Not to Block DC Circuit Votes

Nearly 100 organizations send a letter calling for senators to allow votes on all three DC Circuit nominees.
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The GOP War on Women: Judicial Edition

Earlier this year, President Obama nominated three brilliant jurists to the DC Circuit Court of Appeals, the court that many people call “the second most important court in the nation.” It probably comes as no surprise that Republicans have already started laying the groundwork to obstruct their confirmation.
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Grassley's Own DC Circuit Numbers Fail Him

Even under Sen. Grassley's definition of caseload, his argument against filling DC Circuit vacancies falls apart.
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New Data Shows DC Circuit Caseload Continues to Rise

New statistics poke another hole in the GOP's assertion that the DC Circuit's three vacancies should remain unfilled.
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Flashback: When Republicans Thought It Was Okay For Judicial Nominees to Have Opinions

Republicans on the Senate Judiciary Committee spent yesterday’s confirmation hearing on D.C. Circuit Court of Appeals nominee Nina Pillard harping on two points: first, that they think the D.C. Circuit doesn’t need its three vacancies filled, and second, that they think Pillard’s arguments as an academic mean she would disregard the law as a judge.

As it happens, when George W. Bush was the one nominating federal judges, the very same senators held the exact opposite view on both of these issues.

As People For the American Way has extensively shown, the argument that the D.C. Circuit doesn’t need judges holds no water – in fact, Bush nominees Thomas Griffith and John Roberts (now Chief Justice) were confirmed to the D.C. Circuit when each active judge’s caseload was significantly lower than it is today. 

And Republican attacks on Pillard’s academic writings also directly contradict their previous statements on Bush nominees with academic records. As Pillard noted in her hearing, "Academics are paid to test the boundaries and look at the implications of things. As a judge, I would apply established law of the U.S. Supreme Court and the D.C. Circuit."

Just a few years ago, Republican senators agreed. On the nomination of Tenth Circuit judge Michael McConnell, who took a number of far-right stands as an academic, including disagreeing with a Supreme Court decision declaring that a university ban on interracial dating constituted racial discrimination, Utah Sen. Orrin Hatch said, “The diversity of backgrounds and points of view are often the stitches holding together the fabric of our freedoms.”

“Surely, we can’t vote for or against a nominee on whether they agree with us on any number of a host of moral and religious issues, ” Alabama Sen. Jeff Sessions said of Eleventh Circuit nominee William Pryor, a far-right culture warrior who was outspoken in opposition to gay rights, women’s rights and the separation of church and state.

Then-Sen. Jim Demint defended D.C. Circuit Judge Janice Rogers Brown, one of the most outspoken conservative ideologues on the federal bench today, by saying, “A person with strong beliefs and personal convictions should not be barred from being a judge. In fact, I would rather have an honest liberal serve as a judge than one who has been neutered by fear of public opinion.”

And before the Senate confirmed Arkansas District Court Judge J. Leon Holmes, who used Todd Akin’s line about pregnancy from rape before Todd Akin did, Hatch told concerned colleagues,  “This man is a very religious man who has made it more than clear that he will abide by the law even when he differs with it.”

These Bush nominees held positions that were clearly far out of the mainstream, yet Senate Republicans demanded and got yes-or-no confirmation votes on them, helping Bush to shift the federal judiciary far to the right.

What some Judiciary Committee Republicans objected to at yesterday’s hearings is what they apparently see as Pillard’s excessive support for women’s equality, both as an attorney and an academic. Pillard won the Supreme Court case opening the Virginia Military Institute to women and worked with Bush administration officials to successfully defend the Family and Medical Leave Act.  She has strongly defended reproductive rights and criticized abstinence-only education that sends different messages to boys and girls. It’s this record that  her Republican opponents have distorted beyond recognition.

By any measure, Pillard is well within the mainstream, and has made it very clear that she understands that the role of a judge is to apply existing law regardless of one’s personal views. But while Senate Republicans made plenty of excuses for Bush nominees who were far outside the mainstream, they are accusing Pillard of being just too much of a women's rights supporter to fairly apply the law.

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Grassley Cites Anonymous Comments to Justify Rigging DC Circuit

The Judiciary Committee's senior Republican embarrasses himself and degrades the Senate with his latest stunt.
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