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Home > Blog > All > Other courts

Other courts

  • March 14, 2013

    Not Even a Hawkeye Could Break Through Senator Grassley’s Obstruction of the President’s Judicial Nominees

    Guest Post

    by Judith E. Schaeffer, Vice President of the Constitutional Accountability Center. This post is cross-posted from CAC’s Text & History Blog.

    Today, the Senate Judiciary Committee was scheduled to vote on the nomination of Jane Kelly to the United States Court of Appeals for the Eighth Circuit. Nonetheless, even though Kelly is a highly qualified, uncontroversial nominee and her confirmation hearing on February 27 was a virtual love fest, no vote took place.

    Why not? Well, since the start of the Obama Administration, with only five exceptions,* Republicans on the Judiciary Committee have routinely invoked a procedural rule allowing them to insist that a scheduled vote on a nominee be held over – postponed until the Committee’s next meeting or until the following week, whichever is later. They invoked that rule again today, putting off a vote on Jane Kelly, another instance of a mindless abuse of a rule intended to provide more time when more time is actually needed, not a rule intended to put off votes on uncontroversial nominees purely for the sake of delay, which is how Republicans have been using it. The abuse of this rule is just one more example of the unprecedented obstruction to which Republicans have subjected President Obama’s judicial nominees for the past four years.

    Jane Kelly hails from Iowa, the home state of Senator Charles Grassley, Ranking Member of the Judiciary Committee. Apparently, however, not even senatorial courtesy to a well-qualified, uncontroversial, home state nominee could trump the relentless obstruction of the President’s judicial nominees. And so the damage to our Nation’s judiciary continues.

     *Thanks to my colleagues at People For the American Way for the statistics.

    Tags:
    Other courts, Judicial Nominations, Constitutional Accountability Center, Guest Post, Jane Kelly, Judith Schaeffer, Obama administration, Sen. Charles Grassley, Senate Judiciary Committee, Senate obstructionism, U.S. Court of Appeals for the Eighth Circuit
  • March 13, 2013

    Republican Obstructionists’ Ongoing Assault on Judicial, Executive Branch Nominees

    by Jeremy Leaming

    There was an opening early in the 113th Congress to make life a bit tougher on the Senate’s band of obstructionists – through reform of the filibuster. But the obstructionists’ ringleader, Sen. Minority Leader Mitch McConnell (R-K.Y.), deftly avoided real reform by saying the Obama administration’s nominations to the lower federal district courts would be moved along more quickly.

    But so-called reform has quickly proven rather lame. The president’s nominations to federal appeals courts as well as important executive branch positions remain in the cross-hairs of obstructionists who require a 60-vote majority before any action can be taken on those nominations or for that matter legislation.

    On March 6 the Senate killed the president’s nomination of Caitlin Halligan for as seat on the powerful U.S. Court of Appeals for the District of Columbia. As Matt Vister noted earlier this week in an extensive piece for the Boston Globe the D.C. appeals court “has only seven out of 11 judges, the worst vacancy in its history and higher than any other federal circuit court nationwide. Obama has never been able to get a nominee on the court, symbolizing the Senate’s failure to approve nominations to dozens of courts nationwide.”

    And the Senate’s obstructionists are again taking aim at the Consumer Financial Protection Bureau, which was created in part to prevent the shady practices employed by the financial industry, which helped usher in the Great Recession. Right-wing senators beholden to the nation’s superwealthy are demanding changes to the law that created the bureau or they will likely again filibuster Obama’s selection to head the bureau, former Ohio Attorney General Richard Cordray. Cordray was appointed to head the bureau during a recess of Congress. But an opinion from the D.C. Circuit – the court Obama has been blocked from appointing any judges – ruled earlier this year that the president’s three recess appoints to a hobbled National Labor Relations Board were unconstitutional. The Obama administration has appealed that ruling to the U.S. Supreme Court.

    Because Cordray’s appointment was made during a recess, it will expire and he’ll still need to be confirmed. But Republican obstructionists are threatening to block Cordray unless the financial reform law is weakened.

    Sen. Elizabeth Warren (D-Mass.) during a Senate Banking Committee yesterday blasted the obstructionism, saying, “I think that the delay in getting him confirmed is bad for consumers, it’s bad for small banks, it’s bad for credit unions, it’s bad for anyone trying to offer an honest product in an honest market. The American people deserve a Congress that worries less about helping big banks and more about helping regular people who have been cheated on mortgages, on credit cards, on student loans, on credit reports.” The Philadelphia Inquirer’s Jeff Gelles has more on Warren’s comments and a link to video of the hearing.)

    Today TPM’s Brian Beutler reports that Obama during a meeting with Democrats this week “expressed his frustration with Republican slow-walking and filibustering of key nominees, and urged them to address the issue ….”

     

    More
    Tags:
    Executive power, Other courts, Judicial Nominations, Caitlin Halligan, filibuster, President Obama, Sen. Mitch McConnell, Senate obstructionism
  • March 12, 2013

    With Federal Courts Help, Corporations Flaunt Equal Employment Laws

    by Jeremy Leaming

    While President Obama has advanced some eloquent calls for expanding equality, his administration must take more action to ensure equality in the workforce, according to a new ACS Issue Brief.

    Landmark measures such as Title VII of the Civil Rights Act of 1964 and President Lyndon Johnson’s executive order banning federal contractors from employment discrimination have been undermined by federal judges far too eager to protect the rights of employers, write Ellen Eardley and Cyrus Mehri in “Defending Twentieth Century Equal Employment Reforms in the Twenty-First Century.” 

    Citing Simon Lazarus, an attorney with the Constitutional Accountability Center, Eardley and Mehri write that lower federal court judges “have been ‘aggressively activist in narrowing, undermining, and effectively nullifying an array of progressive statutes,’ including statutes involving civil rights and affirmative action.” Eardley and Mehri, attorneys with Mehri & Skalet, PLLC, also note that former federal court judge Nancy Gertner has “recently declared that ‘changes in substantive discrimination law since the passage of the Civil Rights Act of 1964 [are] tantamount to a virtual repeal.’”

    The authors also cite a study from the Harvard Law & Policy Review, the official journal of ACS, which reveals data showing that from 1979 through 2007 judges have increasingly sided with employers in employment discrimination cases and that the rare victories for workers are frequently invalidated at the appellate level. The study by Stewart J. Schwab and Kevin Clermont “found that the anti-plaintiff effect on appeal particularly disturbing because employment discrimination cases are fact-intensive and often turn on the credibility of witnesses.”

    And it’s not just the lower courts that have made it difficult for workers to challenge employer malfeasance, the authors add, noting that the U.S. Supreme Court has issued opinions making it tougher to bring class actions claims and providing federal courts with greater power to quickly dismiss workers’ employment discrimination cases.

    “The Draconian view of Title VII, distortion of the basic principles of civil procedure, and the new hurdles to class certification adopted by the federal judiciary make it difficult for employees to vindicate their rights,” Eardley and Mehri write.

    More
    Tags:
    Access to Justice, Class actions, Corporate governance, Procedural barriers to court, Supreme Court, Other courts, Arbitration, Labor law, Cyrus Mehri, Ellen Eardley, employment discrimination claims, equal opportunity, Federal Courts, Title VII of the Civil Rights Act of 1964
  • March 8, 2013

    Making Progress, Albeit Slowly, on Diversifying the Federal Bench

    by Kristine Kippins

    In celebration of International Women’s Day, ACS highlights the progress made over the last four years to diversify our federal judiciary.

    According to the White House, President Obama has taken great steps to put more women on the bench. With two vacancies on the Supreme Court, Obama filled both spots with women, including the first Latina Justice, Sonia Sotomayor.  He appointed the second and third openly gay women to the district courts, Alison Nathan and Pamela Chen.  Chen is the first openly gay Asian American on the federal bench.  Six district courts have their first female judge ever – AK, E.D. Cal., S.D. Iowa, ME, VT, and Wyo. Shelly Dick will be number seven once installed in the Middle District of Louisiana.  Five states can now claim their first female circuit court judge – Alaska, Connecticut, Rhode Island, Virginia, and West Virginia. And the first Asian American woman to a circuit court, Jacqueline Nguyen, now sits on the U.S. Court of Appeals for the Ninth Circuit. 

    Overall, Obama has placed 74 women on the federal bench, 42 percent of all confirmations, and that same statistic carries through to the percentage of female nominees pending in the Senate.  At this point in his presidency, George W. Bush could only boast that 22 percent of his confirmed judges being women.

    More
    Tags:
    Supreme Court, Other courts, Women's rights, Judicial Nominations, Caitlin Halligan, Diversity, Federal Bench, International Women's Day, Patricia Wald, President George W. Bush, President Obama
  • March 8, 2013

    DOMA: Irrational, Baseless Law, Merits Brief Argues

    by Jeremy Leaming

    It took him long enough to disown one of his more atrocious antigay actions he took as president, but Bill Clinton has finally called for the demise of the so-called Defense of Marriage Act.

    In a column for The Washington Post, Clinton writes, “On March 27, DOMA will come before the Supreme Court, and the justices will decide whether it is consistent with the principles of a nation that honors freedom, equality and justice above all, and is therefore constitutional. As the president who signed the act into law, I have come to believe that DOMA is contrary to those principles and, in fact incompatible with the Constitution.”

    There are two cases the U.S. Supreme Court will hear at the end of this month that raise constitutional issues surrounding marriage equality. In Hollingsworth v. Perry, the justices will consider whether California’s Proposition 8 subverted the equality rights of gay and lesbian couples, and in U.S. v. Windsor, the justices will weigh the constitutionality of a DOMA that bars the federal government from recognizing same-sex marriages, denying scores of federal benefits to couples who have been wed in states that recognize same-sex marriages.

    The Obama administration has lodged briefs in both cases with broad calls for equality. Scores of other organizations have lodged friend-of-the-courts briefs arguing for and against marriage equality. (SCOTUSblog provides access to all those briefs here and here.)

    The merits brief on behalf of Edith Windsor, the woman challenging the constitutionality of the DOMA provision, advances a resounding call for an end to federal discriminatory treatment of lesbian and gay couples.

    Under DOMA the brief notes that the “federal government regards gay couples as not married even if they are married under state law.” [Nine states and the District of Columbia recognize allow same-sex couples to wed.]

    “DOMA excludes married couples who are gay,” the merits brief continues, “from all the rights, privileges, and obligations that the federal government otherwise affords married couples. Ms. Windsor’s situation is representative. In addition to be being denied the ability to claim the estate tax deduction on behalf of her deceased spouse’s estate, she has also been denied the Social Security death benefit to which surviving spouses are normally entitled.”

    Beyond going through all the federal benefits gay couples are denied because of DOMA it also provides a history of the creation of the discriminatory law. It notes, for instance, that DOMA “sped through Congress in large part because of the strong views many members of Congress expressed at the time about the morality of being gay. During one day’s debate, a Representative declared homosexuality ‘is based on perversion, that it is based on lust.”

     

    More
    Tags:
    Supreme Court, Other courts, LGBT issues, Constitutional Interpretation and Change, Equality and Liberty, Defense of Marriage Act, DOMA, Hollingsworth v. Perry, President Clinton, U.S. v. Windsor
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