Tracking the latest developments in the fight for a fair America
Over the weekend, Eastern District of Texas Judge Michael Schneider announced that he’ll leave active duty and take “senior status” in January 2016. By providing over four-months’ notice, Judge Schneider gave the Texas senators charged with finding his replacement an opportunity to do what they have never done before: fill a judicial vacancy before the judge actually steps down and further weakens an already strained justice system. Avoiding the disruption of a vacancy is, after all, the whole point of giving advance notice. In other states, senators often begin working on a vacancy as soon as it’s announced. But not Senators John Cornyn and Ted Cruz. Instead, they have watched vacancies pile up—ignoring, in some cases, more than a year of notice. They have refused to take action until a judge has left the bench, or even long afterward.
Nine Texas federal district judges have stepped down while Cornyn and Cruz have been in office. In each case the judge left before the senators even asked candidates to submit applications. That slow-motion process is contrary not just to common practice nationwide, but to the precedent John Cornyn himself established when fellow-Republican George W. Bush was in office. When Cornyn and Republican Kay Bailey Hutchison served in the Senate under President Bush, five Texas judges gave advance notice of their departure, and for all five the senators recommended replacements well before the vacancies became current. For three of the seats, President Bush was able to make a nomination before the outgoing judge left the bench.
With Cornyn and Cruz dragging their feet under President Obama, Texas has become the epicenter of a growing judicial vacancy crisis. Including two seats on the Fifth Circuit, Texas has nine current judicial vacancies (the most of any state in the country), three of which have been vacant for over two years. Seven of the vacancies are officially designated “judicial emergencies” because of crushing caseloads and desperately needed judges. The extraordinary number of vacancies requires Texas’s remaining active judges to travel—sometimes for hours—to help neighboring courts manage their dockets.
Texas has been in dire need of more judges for years, but Judge Schneider’s vacancy in particular should provide extra incentive for Cornyn and Cruz to avoid delay and take immediate action. The Eastern District of Texas is the second busiest court in the country. It’s so overburdened that the Judicial Conference of the United States called for adding two new judgeships, in addition to filling existing vacancies.
What’s more, the courthouse in Tyler, Texas, where Judge Schneider presides, is already down one judge due to the recent retirement of Judge Leonard Davis. Judge Davis provided almost a year’s notice before retiring in May 2015, and explained in his retirement letter that, without a swift replacement, it would be difficult for the remaining judges to “continue to fulfill their constitutional responsibilities to the citizens of East Texas.” The Tyler Area Chamber of Commerce and Tyler Economic Development Council also urged Cornyn and Cruz to ensure the “swift appointment of [Judge Davis’s replacement] so as to assure the unbroken federal judicial presence in Tyler.” Yet despite these pleas from those most affected by vacancies—the people and businesses who rely on courts to provide justice, and the judges who must work longer and harder to meet growing caseloads—Cornyn and Cruz continue to play politics with the courts, and have not yet started the process to find Judge Davis’s replacement.
Senator Cornyn says he “work[s] . . . to fill openings as they arise,” but he and Senator Cruz can do much better by looking for replacements before they are needed. Judge Schneider’s vacancy could be yet another blow to a court system that for years has been pummeled by a barrage of new vacancies, or it could signify a turning point for Texas courts. Senators Cornyn and Cruz have a choice: let the Texas vacancy crisis grow even worse, or start looking for the judges Texans desperately need.
In mid-July, the Center for Medical Progress, a pseudo-bioethics advocacy group, began posting videos online falsely accusing Planned Parenthood of trafficking in fetal tissue, and prompting a firestorm of attacks against the women’s health organization. Senator Joni Ernst, R-Iowa, soon after introduced a bill to defund Planned Parenthood. Eighteen GOP Senators even pledged to force a government shutdown unless it is successful. Though the bill failed to pass a procedural vote earlier this week, the efforts of its supporters are far from over.
While the bill ostensibly responded to the allegations in the videos, it is but the latest in a string of legislative and judicial attacks on women. Even before the videos, anti-choice advocates fought at every turn to defund and eliminate Planned Parenthood. Their goal is the complete reversal of Roe v. Wade, and with it, women’s constitutional right to reproductive freedom. Heavily edited and mischaracterized videos are a convenient way to generate faux-outrage, but the attacks on women’s health were ongoing long before them.
Even before the videos, anti-choice advocates were engaged in an ongoing two-pronged strategy: use lawsuits based on religious freedom to cut off access to contraception, and enact draconian state laws that make safe, affordable abortions almost impossible to obtain. On both fronts, the activists have been helped by conservative judges.
In a Supreme Court case decided last year, Burwell v. Hobby Lobby, the Court ruled that, despite the Affordable Care Act’s contraceptive mandate, closely-held, for-profit corporations could invoke the religious beliefs of their owners to deny employees health insurance that covers contraceptives. The decision left important questions regarding women’s health not to the women themselves, but to their bosses.
In the year since, conservatives have returned to court seeking to drastically expand the ruling. Consistent with the decision, the Obama administration implemented exemption rules for religious institutions and other organizations like Hobby Lobby who object to providing contraception. These groups would only need to report their objection to their insurance company or the federal government, and then the cost of employees’ birth control will be paid by the government.
But for fifty-six nonprofit organizations, even that was a step too far. They filed a variety of suits challenging their already minimal obligation under the mandate. Many argued that simply notifying the government they were opting out of the mandate placed a “substantial burden” on their exercise of religion. In rejecting one suit brought by Wheaton College, Seventh Circuit Judge Richard Posner explained how the school misconceived its legal obligations:
“[W]hen Wheaton College tells us that it is being ‘forced’ to allow ‘use’ of its health plans to cover emergency contraceptives, it is wrong. It’s being ‘forced’ only to notify its insurers . . . that it will not use its health plans to cover emergency contraception, that it is out of the loop, that the insurers will have to deal directly with the students, faculty, and staff, bypassing the college health plans,” explained Judge Richard Posner in a Seventh Circuit ruling against the college.
Although the government has so far won all six cases decided in the courts of appeals, the real-world results have been less rosy. After losing its suit, Wheaton College chose to stop providing student health insurance of any kind in order to avoid the non-existent requirement that with insurance it must also provide emergency contraception.
The issue may soon return to the Supreme Court. There are currently six appeals involving the contraception mandate pending at the Court. That number is likely to grow as nine other cases are still pending in the circuit courts.
As those cases percolate, state lawmakers are striking at the heart of Roe itself and finding support from conservative judges. In June, the Fifth Circuit upheld a series of Texas anti-abortion laws that are some of the strictest in the country. The provisions require all clinics to have the same building equipment and staffing standards as hospital-style surgical centers, and for doctors to have admitting privileges at an area hospital. Disguised as a public safety protection, these laws are designed to be impossible to comply with. The result is the potential permanent closure of almost half of Texas’ few remaining abortion clinics.
Mississippi is currently seeking certiorari at the Supreme Court to close its last remaining abortion clinic, a feat it has been attempting for years. We tell the story of that clinic in our short documentary, Roe At Risk. And an Eighth Circuit decision last month, while preserving abortion rights in North Dakota for the moment, spent the majority of its opinion urging that Roe be overturned.
Republicans may not have succeeded in defunding Planned Parenthood this week, but their attempt is nothing new. And anti-choice advocates are stepping up the fight. The misleading and heavily edited Planned Parenthood videos are an excuse to push for what they’ve wanted for decades: an end to women’s reproductive freedoms.
This past Supreme Court term was a tough one for Justice Antonin Scalia. On a number of important cases, a majority of the Court rejected his extremist conservative ideology and upheld important laws and constitutional rights protecting women, the LGBT community, and working Americans. And Justice Scalia was none too happy with it.Reacting to his colleagues, Scalia didn’t mince words. In Young v. UPS, a decision that protected pregnant women in the workplace, his “disagreement with the Court [was] fundamental.” In the Affordable Care Act (ACA) case that protected healthcare for millions, King v. Burwell (or, as Scalia prefers, the “SCOTUScare” case), the majority’s rationale was “jiggery-pokery” and full of “words [that] no longer have meaning.” (“Understatement, thy name is an opinion on the Affordable Care Act!”) And, according to Scalia, Justice Stephen Breyer’s call for abolition in the death penalty case Glossip v. Gross “reject[ed] the Enlightenment[.]”
Most upsetting of all to Scalia was Obergefell v. Hodges, which recognized a constitutional right to marry for all same-sex couples. Scalia said the majority’s “pretentious” and “egotistic” opinion “diminish[ed] this Court’s reputation for clear thinking and sober analysis,” leaving its reasoning no better than the “mystical aphorisms of the fortune cookie.” Scalia would have preferred to “hide [his] head in a bag” than sign onto the Court’s opinion.
Through all the derision, hyperbole, and “straining-to-be-memorable” insults, it can be easy to confuse a Justice Scalia opinion with the latest commentary on Fox News. As Scalia’s extreme views become further marginalized on the Court, his writing reads more like conservative talking points than actual legal argument. See for yourself. Take our quiz.
Question 1: Will the Court do anything to save the ACA?
“The interpretive somersaults [of the Court’s two decisions on the ACA] will surely be remembered through the years. . . . And these two cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and that it is prepared to sacrifice all the usual interpretive principles—that it is prepared to do whatever it takes—to uphold and assist its favorites.”
WHO SAID IT?
Justice ScaliaCongrats! Scalia made the statement when he announced his dissent from the bench—a tradition reserved for the cases where justices most strongly disagree with each other.
But it would be easy to confuse the statement with that of a conservative pundit. Before oral argument in the case, Rush Limbaugh said during his show, “At what point does the Constitution matter? This is a clear abdication. This is a clear violation. The entire Obamacare law itself is [unconstitutional], and should have been declared so, the first time before the court. The chief justice had to rewrite parts of it to make it appear to be constitutional and to save it.”
Rush LimbaughClose! Before oral argument in the case, Rush Limbaugh said during his show, “At what point does the Constitution matter? This is a clear abdication. This is a clear violation. The entire Obamacare law itself is [unconstitutional], and should have been declared so, the first time before the court. The chief justice had to rewrite parts of it to make it appear to be constitutional and to save it.”
Scalia offered his version while reading his dissent from the bench—a tradition reserved for the cases where justices most strongly disagree with each other.
Question 2: Ministers being forced to marry same-sex couples?
WHO SAID IT?
Justice ScaliaCongrats! During oral argument in Obergefell, Justice Scalia asserted that, if the Court ruled in favor of same-sex couples, ministers would be forced to perform marriage ceremonies for same-sex couples. The claim is baseless. The constitutionality of same-sex marriage has nothing to do with the religious liberty of ministers.
But it would be easy to confuse the statement with one from a right-wing extremist. Jeremy Tedesco, counsel for the far-right Alliance Defending Freedom, recently said, “Many have denied that pastors would ever be forced to perform ceremonies that are completely at odds with their faith, but that’s what is happening here—and it’s happened this quickly.”
Jeremy TedescoClose! Jeremy Tedesco, counsel for the far-right Alliance Defending Freedom, recently said, “Many have denied that pastors would ever be forced to perform ceremonies that are completely at odds with their faith, but that’s what is happening here—and it’s happened this quickly.”
But it was Scalia who asserted during oral argument in Obergefell that, if the Court ruled in favor of same-sex couples, ministers would be forced to perform marriage ceremonies for same-sex couples. The claim was baseless. The constitutionality of same-sex marriage has nothing to do with the religious liberty of ministers.
Question 3: Is same-sex marriage a threat to democracy?
“Gay-rights groups have begun a scorched-earth policy against anybody who opposes their agenda. And the ultimate victim may be democracy itself.”
WHO SAID IT?
Justice ScaliaClose! In Scalia’s Obergefell dissent, he claimed the decision legalizing same-sex marriage was a threat to democracy: “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
But it was the late evangelical Christian leader Chuck Colson, a hatchet man for President Nixon who found religion shortly before going to jail for obstruction of justice, who made the similar claim four years earlier. Audio is available here.
Chuck ColsonCongrats! In 2011, the late evangelical Christian leader Chuck Colson, a hatchet man for President Nixon who found religion shortly before going to jail for obstruction of justice, claimed same-sex marriage could ruin our democracy.
It would be easy to confuse the statement with Scalia’s. In his Obergefell dissent, the justice made a similar claim regarding the decision to legalize same-sex marriage: “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” Audio is available here.
Question 4: Is opposing the death penalty really about ego?
WHO SAID IT?
Justice ScaliaClose! In Scalia’s Glossip concurrence, he similarly criticized two justices on the Court who called for the abolition of the death penalty: “A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good. Mind you, not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible.”
But it was Ann Coulter who made the above statement in May, claiming that opposition to the death penalty was about self-esteem.
Ann CoulterCongrats! In May, Ann Coulter claimed that opposition to the death penalty was about self-esteem.
But it would be easy to confuse the statement with something said by Scalia. In his Glossip concurrence, Scalia similarly criticized two justices on the Court who called for the abolition of the death penalty: “A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good. Mind you, not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible.”
Question 5: Extra Credit
“We look at the law. And the law includes the ’68 [Fair Housing] act and the ’88 amendments [to the act]. And I – I find it hard to read those two together in any other way than there is such a thing as disparate impact.”
WHO SAID IT?
Justice ScaliaCongrats! Yes, it was Scalia. During oral argument in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, a case where the Court ultimately upheld an important tool for enforcement of the Fair Housing Act known as “disparate impact,” Scalia appeared to echo the arguments of civil rights advocates.
The Fair Housing Act was passed in 1968. Twenty years later, Congress amended the act. It added additional protected classes, rejected an amendment to prohibit disparate impact claims, and, most importantly, created three exceptions to disparate impact liability. These amendments would be meaningless, the plaintiffs argued, if the Fair Housing Act didn’t include disparate impact claims. And Scalia seemed to agree.
But when it came time to issue a decision, his vote did not reflect these views. He joined Justice Samuel Alito’s dissent which called the very argument he made before “deeply flawed.”
Justice Anthony KennedyClose! But actually, it was Scalia. During oral argument in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, a case where the Court ultimately upheld an important tool for enforcement of the Fair Housing Act known as “disparate impact,” Scalia appeared to echo the arguments of civil rights advocates. The Fair Housing Act was passed in 1968. Twenty years later, Congress amended the act. It added additional protected classes, rejected an amendment to prohibit disparate impact claims, and, most importantly, created three exceptions to disparate impact liability. These amendments would be meaningless, the plaintiffs argued, if the Fair Housing Act didn’t include disparate impact claims. And Scalia seemed to agree.
But when it came time to issue a decision, his vote did not reflect these views. He joined Justice Samuel Alito’s dissent which called the very argument he made before “deeply flawed.”
- Have your own examples? Tweet #ScaliaSaidIt to @AFJustice to share more outrageous examples of things Justice Scalia has said.
At Wednesday’s Senate Judiciary Committee hearing, Republican Senator Jeff Sessions provided a model lesson in why there is so little professional diversity among our federal judges. Turning to District of Maryland nominee Paula Xinis, Sessions unleashed a line of accusatory questions suggesting that Xinis’ career as a public defender and civil rights lawyer showed an “agenda” that she would invariably “bring to the bench.” The questions were absurd and unfounded, but they could not be dismissed as such. Instead, Xinis had to patiently explain that protecting the rights of America’s most vulnerable and disenfranchised had not left her tainted with disqualifying bias.
Unfortunately, such questions are not unusual, and Jeff Sessions is not alone in asking them—rather,
they illustrate a systemic problem with the current process of judicial selection and the deeply entrenched presumptions attached to certain legal careers.
Public defenders and civil rights lawyers (as well as plaintiffs’ lawyers generally) are dramatically underrepresented among federal judges. Just 14 percent of President Obama’s judicial nominees have been public defenders, while about 41 percent have been prosecutors. Likewise, only 3.2 percent of nominees have worked as civil rights lawyers, while 72 percent have been corporate attorneys. Xinis’ nomination reflects continued improvement—already in 2015 the president has nominated four public defenders (out of 12 total nominations), and Rhode Island’s senators recently recommended a potential fifth public defender for nomination—yet the wide disparity remains.
Beyond specific categories of law practice, these numbers reveal a broader truth: our federal courts are staffed largely with judges who, in their legal careers before taking the bench, represented only the most powerful in American society, either defending massive corporations or wielding the enormous power of the state against criminal defendants. Only a small minority of judges have experience representing indigent defendants or other low-income clients, the very people who depend most on our courts to provide equal justice.
In part, this is due to the mistaken but rarely questioned notion that lawyering to preserve influence and privilege—to cement rather than challenge the status quo through legal practice—is somehow impartial and cannot possibly come to bear in judicial decisionmaking. In a recent panel discussion led by Alliance for Justice, D.C. Circuit Judge Nina Pillard noted how “[t]here’s a sense, somehow, in the process of finding judges or candidates, that being in a large corporate law firm is neutral and being an advocate for people who have been subject to discrimination or retaliation or repression of their speech or their religious beliefs is not neutral, and . . . I would question that.”
This skewed sense of what’s “neutral” emerged during Senator Sessions’ questioning of Paula Xinis. Sessions felt compelled to verify that someone with Xinis’ professional background—which also includes time as a complaint examiner in D.C.’s Office of Police Complaints—would not be biased against police officers. After asking whether “police have a responsibility to try to maintain an orderly and safe environment for the people who live in a city,” and whether a judge “should show empathy for the difficulties that police officers face as well as” for those who allege that police have violated their civil rights, Sessions closed with this:
Can you assure the police officers in Baltimore and all over Maryland that might be brought before your court that they’ll get a fair day in court, and that your history would not impact your decisionmaking? And I raise that particularly because I see your firm is representing Mr. Freddie Gray in that case that’s gathered so much attention in Maryland, and there’s lots of law enforcement officers throughout the state and they want to know that they don’t have someone who has an agenda to bring to the bench—can you assure them that you won’t bring that to the bench?
The implication is clear: if you defend people against criminal prosecutions, and especially if you represent people in civil rights cases against police, there is a presumption of bias that you must rebut before the Judiciary Committee. One wonders whether Sessions has asked a prosecutor if she would bring to her judicial role an “agenda” against indigent criminal defendants. Or if a corporate defense lawyer would be biased against employees who allege unlawful discrimination or unpaid wages. I doubt very much that he has.
The depth of this double-standard is underscored by Sessions’ invoking Freddie Gray in particular. Gray, of course, was fatally injured in Baltimore police custody after being arrested without cause. His death led to grand jury indictments for six officers on homicide and assault charges, and the Department of Justice opened a civil rights investigation. Under these circumstances, representing Gray’s family hardly seems like an act of radical subversion that would call into question one’s ability to fairly and impartially apply the law. But in Sessions’ view, any challenge to police authority, even in a case as egregious as Freddie Gray’s, can be done only in pursuit of some extra-legal “agenda.”
Professional diversity in the judiciary matters. Judge Pillard called it “a deficit in our courts” that “we haven’t had [judges] who’ve represented less well-to-do, less institutionally-established clients[.]” And the point isn’t that one kind of lawyer is neutral and impartial while another kind of lawyer is not. Nor is it that corporate lawyers are necessarily bad judges and public defenders are necessarily good. It’s that all judges, regardless of background, are shaped by the perspectives and experiences acquired over many years in the law. Fair and equal courts require a diversity of these perspectives, not any one in particular, and this week’s hearing reminds us of how hard that is to achieve.
But this much is clear: the problem is much bigger than Senator Sessions, and solving it requires everyone involved in judicial selection and who cares about the courts to talk openly about and promote the value of professional diversity.
Earlier this week, the Department of Defense announced it will be expanding the Military Lending Act to cap interest rates and prohibit forced arbitration in credit cards, payday loans, vehicle title loans, refund anticipation loans, and other types of loans made to service members. A previous rule had been riddled with loopholes that allowed lenders to charge exorbitant fees and avoid the arbitration ban. The expansion is an important step toward protecting troops who are often targeted by predatory lenders before being deployed.
The news comes as the Consumer Financial Protection Bureau (CFPB) moves toward rulemaking of its own on forced arbitration. On Wednesday of last week, CFPB Director Richard Cordray confirmed the agency would soon be announcing a rule on the use of forced arbitration in financial products for all American consumers.
The decision follows two studies conducted by the agency that demonstrated the prevalence of forced arbitration and the harm it causes. Tens of millions of consumers use products under the CFPB’s jurisdiction that contain forced arbitration clauses. For some products, including payday loans and cell phones, nearly every contract signed by a consumer has an arbitration clause in it. Yet most consumers mistakenly believed they could still sue their employer in court or join others in such a suit. Once in arbitration, the report found that businesses won 93 percent of their claims and counterclaims.
Industry groups and congressional Republicans have already begun to fight back. An amendment to the Financial Services Appropriations Bill would require the CFPB to conduct yet another, duplicative study—at taxpayer expense—before beginning the rulemaking process. And in a transparent attempt to create further delay, the American Bankers Association, the Consumer Bankers Association, and The Financial Services Roundtable made similar demands in a recent letter to the CFPB.
Yet these efforts have not been enough to stall our momentum. The CFPB has confirmed its intention to initiate the rulemaking process despite industry objections, and for now the financial services bill has stalled on the House floor. More than three years after the CFPB began work on its arbitration study, meaningful change is finally on its way.
This month marks the five year anniversary of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which gives the CFPB its authority to ban forced arbitration clauses in the financial industry, and the four year anniversary of the CFPB itself. On these important birthdays, recent efforts to curtail forced arbitration provide reason to celebrate—but there is more work to be done. Industry opposition will continue. The rulemaking process, once underway, will be contentious. And AFJ will be there fighting every step of the way.