Fair and Just Courts

Oregon Becomes 16th State to Join the Fight Against Citizens United

Following the approval of House Joint Memorial 6 by a 17-13 vote in the Oregon Senate today, Oregon became the 16th state to call for an amendment to the Constitution overturning the 2010 Citizens United decision and related cases.

The passage of HJM6, first introduced in January by Representative Brian Clem, is the result of a grassroots mobilization effort by the people of Oregon. In 2012 alone, 12 Oregon cities and counties passed local resolutions urging state and federal legislators to call for a constitutional amendment taking back our democracy from corporations and special interests. The mobilization at the state level was led by Oregonians for Restoring Constitutional Democracy, a coalition that gathered signatures and endorsements in support of HJM6.

The joint memorial urges Congress to propose a constitutional amendment “clarifying the distinction between the rights of natural persons and the rights of corporations” and recognizing “that Congress and state legislatures may regulate all moneys raised and spent for political purposes.”

Rep. Jules Bailey, speaking to the Oregon House last week, urged his fellow representatives to support the measure, saying, “When we confuse the monolith with the individual, then a piece of our humanity dies. Let us ask Congress to undo this mistake.” The measure passed the House by a vote of 48-11 on June 21st before being sent to the Senate.

With each additional state joining the movement to overturn Citizens United and related decisions, the will of the American people becomes clearer. We will not let our elections be bought and sold. We will not let corporate power subvert the will of the people.

PFAW

In 2016, Remember This Week at the Supreme Court

It's been a week of mixed emotions for those of us who care about civil rights. There was the elation today when the Supreme Court overturned the so-called Defense of Marriage Act -- the discriminatory law that has hurt so many Americans in its nearly 17 years of existence -- and let marriage equality return to California. There was the anger when the Court twisted the law to make it harder for workers and consumers to take on big corporations. And there was the disbelief and outrage when the Court declared that a key part of the Voting Rights Act that was so important and had worked so well was now somehow no longer constitutional.

But throughout the week, I have been reminded of one thing: how grateful I am that Mitt Romney will not be picking the next Supreme Court justice.

It remains true that this Supreme Court is one of the most right-leaning in American history. The majority's head-in-the-sand decision on the Voting Rights Act -- declaring that the VRA isn't needed anymore because it's working so well -- was a stark reminder of why we need to elect presidents who will nominate Supreme Court justices who understand both the text and history of the Constitution and the way it affects real people's lives.

We were reminded of this again today when all the conservative justices except for Anthony Kennedy stood behind the clearly unconstitutional DOMA. Justice Antonin Scalia -- no stranger to anti-gay rhetoric -- wrote an apoplectic rant of a dissent denying the Court's clear role in preserving equal protection. If there had been one more far-right justice on the court, Scalia's dissent could have been the majority opinion.

Just think of how different this week would have been if Sonia Sotomayor and Elena Kagan were not on the court and if John McCain had picked two justices instead. We almost certainly wouldn't have a strong affirmation of LGBT equality. Efforts to strip people of color of their voting rights would likely have stood with fewer justices in dissent. And the rights of workers and consumers could be in even greater peril.

As the Republican party moves further and further to the right, it is trying to take the courts with it. This week, we saw what that means in practice. As we move forward to urge Congress to fix the Voting Rights Act and reinforce protections for workers and consumers, and work to make sure that marriage equality is recognized in all states, we must always remember the courts. Elections have real consequences. These Supreme Court decisions had less to do with evolving legal theory than with who appointed the justices. Whether historically good or disastrous, all these decisions were decided by just one vote. In 2016, let's not forget what happened this week.

This post originally appeared in the Huffington Post.

PFAW

Supreme Court Dumps PART of DOMA

The Supreme Court today ruled that the core section of the so-called Defense of Marriage Act violates the Constitution’s guarantee of equal protection under the law. DOMA’s Section 3, which the Court vacated, prevented the federal government from recognizing same-sex marriages performed in the states, thereby hitting legally married gay and lesbian couples with extra taxes and depriving them of a slew of federal protections.

People For the American Way Foundation president Michael Keegan said of the Supreme Court’s ruling: “Today’s  DOMA ruling is a profound step forward for loving, committed same-sex couples across the country. The decision is premised on the plain fact that there is no good reason for the government to recognize some legally married couples while discriminating against others.”

PFAW launched a campaign to “Dump DOMA” in 2008. Since then, our petition calling on Congress to repeal the discriminatory law  has gathered 230,000 signatures.

But the effort to overturn DOMA is not over. While Section 3 was the law’s most damaging provision, DOMA’s Section 2, which says that states don’t have to recognize same-sex marriages performed in other states, still stands. We will continue to work to overturn the remainder of DOMA and ensure that all gay and lesbian Americans have the right to marriage, no matter which state they make their home.

While our work continues, today’s decision represents a historic turning point for equality.  DOMA will no longer tear apart binational couples. It will no longer impose a “gay tax” on legally married same-sex couples. It will no longer deny benefits to same-sex spouses of federal employees. It will no longer deny gay and lesbian veterans benefits for their spouses.

The story of Edith Windsor, the plaintiff who brought DOMA to the Supreme Court, and Thea Spyer, her late wife and partner of 40 years, illustrates what this decision will mean to so many Americans:
 

PFAW

DOMA Decision Slices Right Wing Talking Point on Referendums

Today's opinion shatters the ridiculous right-wing line that marriage equality laws are illegitimate without a referendum.
PFAW Foundation

The Smoking Gun in the Voting Rights Case

Scalia's comments during oral arguments show that he was guided by personal ideology, not the law.
PFAW

Bad News for Workers in the Supreme Court's Vance Case

The Corporate Court ignores the realities of the workplace and frustrates the goals of Title VII in narrowing the definition of a supervisor.
PFAW Foundation

Affirmative Action Remains

Today was a victory for affirmative action, which is vitally important for advancing fairness and equal opportunity.
PFAW Foundation

A Good Day at the Court for Drug Manufacturers (But Not the Rest of Us)

The Court's sharply divided 5-4 opinion in Mutual Pharmaceuticals v. Bartlett leaves severely injured consumers with no remedy.
PFAW Foundation

Corporate Court Lets Monopolists Bypass Antitrust Laws

The Roberts Court empowers big corporations to violate antitrust laws and prevent small business victims from vindicating their federal rights.
PFAW Foundation

Longer and Longer Waits for District Court Nominees

Because of a deliberately created backlog, district court nominees have waited longer and longer for a confirmation vote during the 113th Congress.
PFAW

Supreme Court Upholds Voting Rights in Arizona Proof-of-Citizenship Case

The Supreme Court issued 7-2 ruling in favor of voting rights today, finding that a restrictive Arizona law requiring that voters show proof of citizenship when registering by mail is preempted by federal law. The court upheld Arizonans’ right to register to vote by mail using a federal form created by the 1993 “Motor Voter” law, which allows voters to certify under oath that they are citizens. Arizonans will not have to submit information that the federal form does not require.

PFAW Foundation joined in an amicus brief in the case, Arizona v. Inter Tribal Council of  Arizona, on behalf of its Young People For program.

The Arizona law, which would have required voters to present one of a narrow set of documents proving citizenship in order to register to vote, would have impeded the voting rights of countless Arizonans. As Demos put it:

Many eligible citizens do not possess these narrow forms of documentation required by the law and, of those who do, many  do not carry them while conducting their daily affairs.  Community-based registration efforts overwhelmingly rely on approaching individuals who did not plan in advance to register at that time or location and who are thus unlikely to be carrying a birth certificate, passport, or other documentation.

Even when a potential registrant does happen to be carrying one of the required documents, logistical hurdles—ranging from an inability to copy documents on the spot to an unwillingness to hand over sensitive identification documents to registration drive volunteers—greatly hinder the ability of community-based organizations to register people in Arizona.

The Supreme Court has yet to issue a decision in the other major voting rights case on its docket this term, the constitutionality of Section 5 of the Voting Rights Act.

PFAW

First Lesbian Latina Confirmed as Federal Judge

Judge Nitza Quiñones Alejandro broke an important glass ceiling this week, becoming the first openly lesbian Latina confirmed to a federal judgeship.  The Senate confirmed her by voice vote to the U.S. District Court for the Eastern District of Pennsylvania yesterday. Previously Quiñones served for more than two decades on the Philadelphia County Court of Common Pleas. 

The Washington Blade notes that Quiñones is only the seventh openly LGBT person in our country’s history to be confirmed as a federal judge.

PFAW has advocated for more diversity in the judiciary, applauding President Obama’s push to bring qualified judges from many backgrounds to the federal bench.  Issuing decisions that affect all communities, the federal bench – and all benches – must reflect the diversity of our nation. 

Last year President Obama said he was committed to ensuring that “the judiciary resembles the nation it serves.”  This week’s confirmation is an important step toward that goal. 
 

PFAW

Why Senate Republican Claims About the D.C. Circuit Don’t Pass the Pinocchio Test

Earlier this week President Obama nominated three unquestionably qualified candidates – appellate attorney Patricia Millet, former civil rights attorney Cornelia Pillard and D.C. District Court judge Robert Wilkins – to the D.C. Circuit, the second most influential court in the country.  Republicans are already fighting hard against these nominations, claiming that the D.C. Circuit doesn’t have a large enough workload to necessitate filling the vacant seats.  Sen. Chuck Grassley (D-IA) even went as far as to say, “No matter how you slice it, the D.C. Circuit ranks last or almost last in nearly every category that measures workload.”

Not quite.  Glenn Kessler at The Washington Post wrote an article this morning delving deeper into Sen. Grassley’s claims.  Kessler wrote,

“Challenged by Grassley’s claim that the D.C. Circuit is last ‘no matter how you slice it,’ we came up with two other measures that might shed more light on the D.C. Circuit’s workload… One way to measure this is by looking at the data for ‘administrative appeals.’

In 2012, nearly 45 percent of those appeals at the D.C. Circuit involved administrative appeals concerning federal rules and regulations, which many experts say are highly complex and take more time to review.  By contrast, at the other circuits, virtually all of the administrative appeals involve immigration cases. Using the data in Table B-3, we found that in the other circuits, administrative appeals that did not involve immigration matters accounted for less than 3 percent of the appeals. (In some circuits, it was less than 1 percent.)”

In other words, the D.C. Circuit is considering some of the most intricate and far-reaching cases of any court.  The complexity of these types of cases make apples-to-apples comparisons with other circuits difficult. 

Kessler continues:

“Another measure of the complexity of the cases are statistics on written opinions. The raw data suggest that judges on the D.C. Circuit write fewer opinions than judges on other appeals circuits. (This was one stat that Grassley staff sent us.) But Table S-3 shows that the D.C. Circuit produced a greater proportion of written, signed opinions on cases determined on the merits than most other circuits.”

Overall, the Post concludes,

“[T]he certainty in Grassley’s argument is particularly misplaced, given the unusual nature of the D.C. Circuit… you can’t just assert that one appeals filing is equal to another — or that one set of statistics is better than another. Depending on the metrics, the D.C. Circuit could very well be in first place.”

In 2005, Sen. Grassley did not seem to have these workload concerns when he voted to confirm Bush nominees Janice Rogers Brown and Thomas B. Griffith to the tenth and eleventh seats on the D.C. Circuit.  Yet when he and other Republicans cast those votes, the court was handling the same number of cases as it is now.  As President Obama pointed out in his speech announcing the three nominees, this is an overtly political move on the part of Senate Republicans:

“When a Republican was president, 11 judges on the D.C. Circuit Court made complete sense. Now that a Democrat is president, it apparently doesn't – eight is suddenly enough.”

PFAW

President Obama Blasts GOP Obstruction, Nominates Three to Influential Court

Today, President Obama nominated three people – experienced appellate attorney Patricia Millet, Georgetown law professor and former civil rights attorney Cornelia “Nina” Pillard and D.C. District Court judge and former public defender Robert Wilkins – to the influential Court of Appeals for the D.C. Circuit.

All three have stellar qualifications. Yet, Senate Republicans were threatening to block all three even before they knew who the nominees would be.

In a Rose Garden speech introducing the nominees, President Obama blasted Republican obstruction and urged the Senate to quickly review and hold votes on all three. “The Constitution demands that I nominate qualified individuals to fill those seats,” he said. “What I am doing today is my job.  I need the Senate to do its job.”


So one of the most important responsibilities of a President is to nominate qualified men and women to serve as judges on the federal bench. 

And Congress has a responsibility, as well.  The Senate is tasked with providing advice and consent.  They can approve a President’s nominee or they can reject a President’s nominee.  But they have a constitutional duty to promptly consider judicial nominees for confirmation.

Now, throughout my first term as President, the Senate too often failed to do that.  Time and again, congressional Republicans cynically used Senate rules and procedures to delay and even block qualified nominees from coming to a full vote. 

As a result, my judicial nominees have waited three times longer to receive confirmation votes than those of my Republican predecessor.  Let me repeat that:  My nominees have taken three times longer to receive confirmation votes than those of my Republican predecessor.  These individuals that I nominate are qualified.  When they were given an up or down vote in the Senate -- when they were finally given an up or down vote in the Senate, every one of them was confirmed.  So this is not about principled opposition.  This is about political obstruction. 

Despite that, some Republicans recently have suggested that by nominating these three individuals, I’m somehow engaging in -- and I’m quoting here -- in “court-packing.”  (Laughter.)  No -- people laugh, but this is an argument I’ve made.  For those of you who are familiar with the history of court-packing, that involved Franklin Delano Roosevelt trying to add additional seats to the Supreme Court in order to water down and get more support for his political agenda.  We’re not adding seats here.  We’re trying to fill seats that are already existing.  Each of the past five Presidents has seen at least three of their nominees confirmed to the D.C. Circuit.  Since I’ve been President, obstruction has slowed that down to one. 

Right now, there are three open seats on a critical court.  I didn’t create these seats.  I didn’t just wake up one day and say, let’s add three seats to the District Court of Appeals.  These are open seats.  And the Constitution demands that I nominate qualified individuals to fill those seats.  What I am doing today is my job.  I need the Senate to do its job.

For more background on the D.C. Circuit, see PFAW’s Marge Baker’s piece in the Huffington Post yesterday, “Five Things Republicans Don’t Want You to Know About the D.C. Circuit.”

PFAW

More Truthiness From Sen. Grassley on the Courts

When the Senate unanimously confirmed Sri Srinivasan to the Court of Appeals for the D.C. Circuit last month, Republicans patted themselves on the back for cooperating in a relatively efficient confirmation process. But, by any objective standard, Srinivasan’s confirmation process wasn’t that efficient at all. In fact, Republican obstruction of Srinivasan started when they delayed a hearing on his nomination for ten months, from June 2012 to April of this year.

But Sen. Chuck Grassley, the ranking Republican on the Senate Judiciary Committee, is now pushing an alternate history of this delay on Srinivasan’s nomination. In a floor speech the day Srinivasan was confirmed, Grassley insisted that Sen. Patrick Leahy, the chairman of the Senate Judiciary Committee, “made no effort to schedule a hearing on this nominee until late last year.”

In a press release this week, Sen. Leahy explained why this argument is just plain false. In fact, he wrote, it was Senate Republicans who kept insisting that Srinivasan’s hearing be pushed back:

By July 19, 2012, I had determined that the paperwork on the Srinivasan nomination was complete and the nominee could be included in a hearing.  It has been my practice as Chairman of the Judiciary Committee to give the minority notice and allow consultation before scheduling a nomination for a hearing.  At that time, the next July hearing had been discussed as one devoted to the nominee to head the Antitrust Division at the Department of Justice, a nomination that itself had been delayed and to which there was Republican opposition.  During the August recess, my staff asked Senator Grassley’s about holding the hearing on the Srinivasan nomination in September.  They raised objections and concerns about proceeding with the D.C. Circuit nomination at that time but agreed to proceed with four district nominees and a Court of International Trade nominee.

In November, 2012, after the American people reelected President Obama, we raised the need for a hearing on the D.C. Circuit nomination anew.  Republicans objected, again, in spite of the precedent of holding a hearing for one of President Bush’s D.C. Circuit nominees during a similar lame duck session. Instead, they wanted to proceed only with district court nominees during the lame duck.  Republicans insisted that the Srinivasan hearing be put off until the new Congress and the new year.  In deference to the Republican minority, I held off.  They agreed that he would be included at the first nominations hearing of the 113th Congress.

Then, in early January of this year, when called upon to hold up their end of the bargain, Republicans balked.

This isn’t just a matter of settling a complicated Senate score. Instead, Sen. Leahy is pointing out yet another incident of Sen. Grassley’s twisting the truth about judicial nominees and the judicial nominations process in an attempt to cover for slowing down Senate business and ultimately the business of the federal courts. As Leahy says in his statement:

Those erroneous Record statements have me wondering whether I should be so accommodating to Republican scheduling demands given that they forget their demands in their efforts to avoid responsibility and blame others.   
 

PFAW

1000-Day Judicial Vacancy in Georgia

Georgia's senators are keeping President Obama's 11th Circuit Court nominee from even having a committee hearing.
PFAW

Susan Collins’ D.C. Circuit Hypocrisy

Maine Republican Sen. Susan Collins signed on today as a cosponsor of a blatantly political bill meant to deny President Obama, unlike any of his predecessors, the ability to fill vacancies on the D.C. Circuit Court of Appeals.  

The D.C. Circuit is the second most influential court in the country, behind the Supreme Court. It has the final word on scores of federal laws and regulations, from consumer protections to workers’ rights to environmental protections

For more than 30 years, presidents of both parties have placed numerous judges on the D.C. Circuit:

Senate Republicans prevented President Obama from placing a single nominee on the court during his first term and the first four months of his second, despite the fact that one-third of its active judgeships were vacant. They were so eager to keep the court dominated by Republican-nominated judges that they twice filibustered President Obama’s first nominee to the court, the eminently qualified Caitlin Halligan. Yesterday, after a ten-month delay, the Senate finally confirmed an Obama nominee, Sri Srinivasan, to fill one of the court’s four vacancies. But Republicans are indicating that their cooperation will stop there.

Senate Republicans are not only vowing to block any Obama nominees to the remaining three seats on the D.C. Circuit, they are actually proposing a bill that would eliminate those three seats entirely in order to prevent President Obama from filling them. 

The bill, sponsored by Senate Judiciary Committee ranking member Chuck Grassley and cosponsored by every other Republican member of the Judiciary Committee, just gained its first non-committee cosponsor: Sen. Collins.

The bill’s backers claim that the D.C. Circuit doesn’t have a great enough workload to justify filling the remaining three judgeships. However, Sen. Collins’ own voting record provides a perfect refutation of that argument.

Sen. Collins and her allies object to Obama’s filling the 9th, 10th and 11th seats on the D.C. Circuit. However, when George W. Bush was president, Sen. Collins had no such reservations about the need to fill the court's vacancies. In 2006, Collins voted to confirm Bush nominee Brett Kavanaugh to the 10th seat on the D.C. Circuit. In 2005, she voted to confirm Bush nominees Janice Rogers Brown to the 10th seat on the court and Thomas Griffith to the 11th.

Following the Griffith confirmation, which Collins supported,  the D.C. Circuit’s caseload was 119 cases per active judge. If every one of the D.C. Circuit’s 11 seats were filled today --  including the three seats that Sen. Collins wants to eliminate – the court’s caseload would be slightly higher than it was then, at 120 cases per active judge. Sen. Collins evidently thinks that what was a reasonable caseload for the court under President Bush is  somehow wastefully low under President Obama.

Meanwhile, here is Sen. Sheldon Whitehouse refuting Sen. Grassley’s absurd claim that President Obama is trying to “pack” the D.C. Circuit by filling its vacancies:

PFAW

D.C. Circuit Vacancies: One Down, Three to Go

Senate Republicans kept Sri Srinivasan from getting a committee hearing until ten months after his nomination, and even tried to filibuster him before allowing a unanimous vote to confirm him to the D.C. Circuit Court of Appeals.
PFAW

McConnell Bobs and Weaves on Judicial Nominations

McConnell tries & fails to justify filibuster of DC Circuit nominee Srinivasan, and throws a GOP-supported 10th Circuit nominee under the bus in the process.
PFAW