This is a committee whose Republican members include Darrell Issa, Steve King, and Louie Gohmert, so it will come as no shock to anyone that a topic that sounds like a segment on a Fox News show was not designed to dispassionately explore the nuances of judicial nominations and the workloads of federal judges.
So what was this hearing really about?
It turns out it was actually about President Obama’s nomination of three highly qualified individuals to the U.S. Court of Appeals for the D.C. Circuit, the court right below the Supreme Court in importance. You might ask why the House of Representatives is conducting a hearing on a subject that is the constitutional purview of the Senate, but the future of the D.C. Circuit is so important that it’s getting the full right-wing, high-volume Sturm und Drang treatment, even in places it doesn’t belong.
Of course the real action is on the other side of the Hill where Republicans in the Senate are doing everything they can think of to prevent the president from filling the three seats out of 11 that are currently vacant on the court. The Republicans are threatening a triple filibuster of all the nominees–no matter how qualified they are–claiming absurdly that there just isn’t enough work for the full complement of 11 judges the law requires. They began carrying out their threat today.
By William Yeomans, Fellow in Law and Government at American University Washington College of Law
Last week, as Congress wallowed in Tea Party induced dysfunction and the Executive Branch hobbled through the shutdown, the Supreme Court declared itself essential and continued its relentless march toward evisceration of remedies for racial discrimination. The latest assault comes in the form of Schuette v. Coalition to Defend Affirmative Action, in which the Court heard argument on Oct. 15. The case marks the return of affirmative action in higher education to the Court less than four months after the Court spanked the University of Texas in Fisher for its consideration of race in admissions. The outcome in Schuette promises to be even more painful for state universities in Michigan.
In 2003, the Court rendered a split decision on affirmative action in the twin cases of Gratz v. Bollinger and Grutter v. Bollinger. While the Court struck down the affirmative action program governing undergraduate admissions to the University of Michigan, it upheld the use of race as one factor in admissions to the University’s law school. Ward Connerly, who has made a career of launching referenda to eliminate affirmative action, went to work immediately, with the assistance of Jennifer Gratz, the anti-affirmative action plaintiff who had successfully challenged the undergraduate admissions program. Their goal was to convince the people of Michigan to amend the state constitution by referendum to eliminate all racial “preferences” in government decisionmaking. The referendum was adopted with the support of some 60 percent of white voters. Minority voters overwhelmingly opposed it. In the simplest terms, the white majority voted to deprive minority residents of the state of a benefit that had been declared lawful by the Supreme Court and that the universities of Michigan wished to continue. It hardly bears stating that submitting minority rights to referendum rarely works out well for the minority.
It hardly bears stating that submitting minority rights to referendum rarely works out well for the minority.
Two groups of plaintiffs challenged the constitutionality of the referendum in federal court. They argued that the referendum ran afoul of the “political restructuring” doctrine of the Equal Protection Clause. This doctrine had been applied in two cases to strike down similar measures. The first, Hunter v. Erickson, in 1969, held that Akron, Ohio could not amend its charter to require that any ordinance requiring fair housing had to be submitted to referendum. The second, Washington v. Seattle School District, in 1982, invalidated a statewide referendum that decreed that school busing could be used for any purpose other than desegregation. The referendum was a response to the adoption of a school desegregation plan by the City of Seattle. In each case, the Court held that the Equal Protection Clause did not permit a governmental body to single out an issue addressing protections based on race and move decisionmaking power over that issue to a higher level. So, in Akron, whereas other comparable ordinances could be adopted by a majority of the city council, fair housing protections could be adopted only by the more burdensome avenue of a referendum. And, the City of Seattle could adopt busing for desegregation only if it succeeded in amending the state constitution. Similarly, proponents of affirmative action in Michigan, rather than having simply to persuade the university Board of Regents, would have to amend the state constitution.
Opponents of affirmative action scoff. They argue that the people are sovereign and a referendum is the purest form of democracy. In their view, the people of Michigan have simply voted to prohibit all forms of racial discrimination, which includes consideration of race in university admissions.
The district court held in favor of the referendum, but the Sixth Circuit Court of Appeals, sitting en banc, reversed by a vote of eight to seven. The conservative members of the Supreme Court voted to take the case (it only takes four) in order to uphold the ban on affirmative action. Justice Kagan has recused herself, presumably because she had some involvement in the case while she was Solicitor General. Because of the Court’s secretive and largely lawless recusal practices, we don’t know for sure.
Unfortunately, the four most conservative members of the Court agree with the dissenters in the Sixth Circuit. They believe that the Equal Protection Clause not only permits, but requires the ban on consideration of race dictated by the referendum. As usual, Justice Kennedy holds the key vote. Sadly, he offers faint hope. On matters of race, he has declined to join his four more radical colleagues in holding that race can never be considered in government decisionmaking, but he has never voted to uphold a program that took race into account.
Justice Anthony: Once again, the likely swing vote
At the argument on Tuesday, Justices Sotomayor and Ginsburg struggled valiantly to place this case squarely within the rule laid down in Hunter and Seattle. Unsurprisingly, there was no hint from the four radical conservatives of anything other than support for the referendum and hostility to its own precedents. Justice Kennedy showed no sign of support for the challenger, but appeared to search for ways to uphold the referendum without overruling Hunter and Seattle. He may attempt to distinguish them by portraying the measures involved as efforts to block equal treatment based on race, while portraying the Michigan referendum as a legitimate effort to eliminate racial distinctions.
It, therefore, appears likely—and I hope I’m wrong—that the Court will strike another blow against the nation’s progress toward a more just society. The Roberts Court’s record on matters of race reveals the rigid ideological commitment of the conservative legal movement to denial of the history of race in this country and the continuing harm that our centuries-long racial caste system has inflicted on minorities and the nation. In its short tenure, it has already dealt a death blow to voluntary school desegregation, gutted the Voting Rights Act, and restricted affirmative action. This Term promises more damage to affirmative action and poses a threat to the Fair Housing Act in a case from New Jersey in which the Court is threatening to defy the unanimous view of the Courts of Appeals and hold that discriminatory effects are not sufficient to violate the Act.
Ironically, by the time the nation completes the celebration of a series of historic anniversaries—the 60th anniversary of Brown, the 50th anniversary of the 1964 Civil Rights Act and the Voting Rights Act of 1965, and in a few years the 50th anniversary of the Fair Housing Act of 1968—we may be celebrating carcasses left behind by a destructive band of conservative Justices.
Watch video of the event from C-SPAN (Nan’s testimony starts at about 54 minutes in):
This is Nan’s statement:
Mr. Conyers, distinguished members of the Judiciary Committee, thank you for inviting me to join you for this important conversation about the sequester, the shutdown, and access to justice.
As President of Alliance for Justice, I am proud to speak on behalf of our more than 100 member organizations, all of which are committed to a justice system that truly serves all Americans. Yet today, we see the evenhanded administration of justice being threatened at every turn.
Even before the shutdown, even before the sequester, our justice system was in crisis. The reason will be familiar to everyone in this room—politically-motivated obstruction. Today’s budget crisis is appalling, but it’s important to understand that it is just one more manifestation of the relentless attacks on the courts and their ability to effectively and efficiently dispense justice that have characterized the last five years.
As of today, more than 90 federal court judgeships sit vacant—that’s more than one in 10 federal judgeships across the country. The Administrative Office of the U.S. Courts has deemed 39 of those vacancies “judicial emergencies,” meaning there are simply not enough judges to handle the caseload in those courts.
When there are too few judges, the wait for justice can be unbearable. Individuals and businesses often have to wait months and even years to stand up for their rights in court. Memories may fade, witnesses may die, financial and personal calamities may be compounded.
For example, in the Eastern District of California, which was home to two judicial emergencies until one was finally filled in March, it took nearly four years for a civil case to get to trial. With waits like those, victims too often give up on ever seeing justice served.
Republican obstruction at every step of the judicial selection process is to blame. This obstruction takes many forms: Republican senators refuse to work with the President to recommend nominees for vacancies in their states. Some refuse to return “blue slips” for nominees they previously supported—as we’ve recently seen in Florida. Votes are delayed for months, even on noncontroversial nominees, while a huge number of nominees are filibustered.
The games being played with the budget will do enormous damage to our system of justice, but those problems are being piled on top of a mountain of dysfunction that already exists.
In Texas, for example, there are currently nine federal judicial vacancies without nominees, six of which are judicial emergencies. One of those judicial emergencies is Judge Furgeson’s seat, which he vacated nearly five years ago. If you add up the time those nine seats have been vacant, it amounts to more than 15 years. Each day, each month, each year without a judge means justice is being denied to the people of Texas.
Yet the Texas senators—one of whom, Ted Cruz, will be familiar to anyone following the government shutdown—are all too happy to let these benches sit empty. The judicial selection commission they set up to recommend nominees for the vacant district court seats has not even started interviewing candidates.
And now we’ve added the sequester and the shutdown to this already untenable situation. Court personnel, Department of Justice lawyers, and federal defenders have been furloughed and downsized. Despite growing caseloads, court staffing levels are at their lowest since 1999. Many civil cases are on hold.
This will only get worse as the shutdown persists. More court staff could face furloughs, and judges will be forced to devote scarce resources to their criminal dockets, slamming the brakes on the civil justice system.
The upshot is that plaintiffs seeking to vindicate civil rights, collect disability benefits, resolve business disputes, recover lost wages, or prevent some imminent environmental harm will be stuck in a holding pattern.
The impact on indigent criminal defendants—some of the most vulnerable members of our society—has been particularly dire. About 90 percent of federal criminal defendants require court-appointed counsel to satisfy their constitutional right to adequate representation. But the sequester has forced Federal Public Defender offices, which were already stretched tight, to cut and furlough their ranks, and the shutdown promises more of the same.
In August, former Ohio Federal Public Defender Steven Nolder wrote on AFJ’s Justice Watch blog about why he fired himself rather than having to sacrifice his staff attorneys to the sequester. As Nolder wrote, “If the intention is to dismantle the ‘gold standard’ of our nation’s public defense systems, our lawmakers are succeeding.”
In fact, the status of our entire justice system as the world’s “gold standard” is at risk.
When the courts and the entire judicial system are starved for funds, justice is weakened. But when that harsh reality is combined with a court system already reeling from the effects of political gamesmanship and endless obstruction, we jeopardize not just the ability of courts to resolve disputes and dispense justice, but faith in our democratic system itself.
If we are to be a beacon for people all over the world who long for justice, the obstruction must end.
Thank you, and I am happy to answer questions at the appropriate time.
By Franita Tolson, Betty T. Ferguson Professor of Voting Rights at Florida State University College of Law
In Arizona v. Inter Tribal Council, the Supreme Court held that Arizona’s Proposition 200, which required proof of citizenship in order to register to vote in federal elections, was preempted by the National Voter Registration Act (“NVRA”) because the NVRA did not require such proof from voters. Shortly after the oral argument in the case, I noted that “the practical reality of compliance with the NVRA may very well mean that a state has to maintain two separate voter registration rolls” for state and federal elections. It appears that Arizona has taken this observation to heart, joining Kansas in setting up a voter registration system for state and local elections that is separate from its system governing federal elections. Under the dual system, voters who provide proof of citizenship will be able to vote in all elections, but those who do not will only be able to vote in federal elections. In adopting this approach, neither Kansas nor Arizona heeded my warning after Inter Tribal was decided about the significant risk of liability that comes with operating separate voter registration regimes.
By setting up dual voter registration systems, Arizona and Kansas may have miscomprehended the scope of congressional authority over elections, which, ironically, is the same mistake that the Court made in resolving the Inter Tribal case. The Court based its decision solely on the Elections Clause of Article I, Section 4, and ignored the other provisions of the Constitution that expand federal power (and by implication limit state authority) over elections. The Elections Clause gives states control over the “times, places and manner of holding Elections for senators and representatives” but subject to Congress’s power “to make or alter such regulations.” The Court rightly recognized that federal power is at its apogee when it seeks to regulate federal elections pursuant to its authority under the Clause, power that the Court described as both “comprehensive” and “paramount.”
Despite a promising start to the decision, the Court’s assessment of the Elections Clause in isolation led it to sharply limit federal authority in other areas, concluding that the power to prescribe voter qualifications is not part of the “times, places, and manner” of federal elections. For this reason, the Court determined that “[i]t would raise serious constitutional doubts if a federal statute precluded a State from obtaining the information necessary to enforce its voter qualifications.” Thus, the Inter Tribal decision, by viewing the power over voter qualifications as firmly within the province of the states, makes it unlikely that having parallel voter registration systems for state and federal elections is per se unconstitutional.
What Arizona, Kansas, and the Court have overlooked, however, is that having a dual system does not free the state from other statutory and constitutional constraints that both protect the right to vote and allow Congress to legislate with respect to voter qualifications. As I previously argued, the Inter Tribal decision disregarded that the Fourteenth and Fifteenth Amendments circumscribe the state’s authority over elections. Congress also has considerable authority under the enforcement provisions of these Amendments to regulate the qualifications of voters, authority that it has exercised in passing the Voting Rights Act of 1965.
Notably, Arizona and Kansas could face liability for their proof of citizenship requirements under section 2 of the Voting Rights Act, which forbids any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” Unlike the Fourteenth and Fifteenth Amendments, section 2 does not require proof of intentional discrimination, just discriminatory effects, making it easier to prove a statutory violation. Moreover, unlike the preclearance regime of sections 4(b) and 5 of the Voting Rights Act, which suspends all voting related changes in certain covered jurisdictions until those changes are approved by the federal government, section 2 applies nationwide. Section 2 most commonly has been used to challenge state legislative and congressional redistricting plans, but the recent invalidation of part of the preclearance regime in Shelby County v. Holder, decided the same term as Inter Tribal, has provided an opening for a broader use of section 2 to combat other types of discriminatory voting regulations. In particular, the decision by these states to utilize a two-tier system of voter registration ignores that a proof of citizenship requirement for state and local elections could have a disparate impact on the voting rights of certain minority groups and run afoul of section 2’s protections. While the Inter Tribal case illustrates that Arizona and Kansas have the power to impose dual systems of registration, such decisions come with potential constitutional and statutory liability where the state’s voter registration regime operates in a way that undermines the right to vote.
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