Tracking the latest developments in the fight for a fair America
It hit me when I saw this gem from Gun Owners of America president Larry Pratt:
“She’s kind of like Eric Holder in a skirt.”
Where have I heard that before?
Ah, yes. In November 2013, Ed Whelan of National Review Online had this to say about then-D.C. Circuit nominee (now D.C. Circuit Judge, thanks to Senate rules reform) Nina Pillard:
“[F]olks who know Pillard well have described her to me as ‘[Ninth Circuit Judge Stephen] Reinhardt in a skirt but less moderate.’”
It’s a safe bet that neither Pratt nor Whelan meant these comparisons as compliments. Pratt’s group calls Holder “a committed anti-gun radical” and Whelan calls Reinhardt an “arch-activist.” Nor can I recall a time when I’ve seen the “in a skirt” construction used with a name the speaker revered. “That talented female debater is like Abe Lincoln in a skirt,” said nobody ever.
But even if you do like Eric Holder and Stephen Reinhardt (and I do), these statements are insulting, not only to Lynch and Pillard, but to all women. They demean women by implying that they do not have thoughts, ideas, or accomplishments of their own, but are merely dressed up versions of men. They focus on women’s appearance and dress rather than their experiences and intellect. In short, they seek to put women in their place.
For those who think I’m being overly sensitive, I challenge you to come up with a single example where a man has similarly been compared to a woman (“Ruth Bader Ginsburg with a beard”?). Until then, please stop skirting the issues and start judging women on their own merits.
The legitimacy of these decisions depends on the public’s belief that justice has been done, that cases are decided by a fair and impartial decision-maker who has applied the law to the facts before her. It is this vital interest—judicial integrity—that is at stake in Williams-Yulee v. The Florida Bar, a case heard by the Supreme Court this past Tuesday.
The impartiality of our courts is under siege. Thirty-nine states select judges in elections that are becoming increasingly expensive and politicized. Between 2000 and 2009, contributions in state supreme court races more than doubled. As pressure on judges to raise campaign funds grows, they will continue turning to their most significant contributors—lawyers and lobbyists. It is therefore no surprise that 95 percent of respondents to a national poll believe that contributions influence judicial decision-making—and that nearly half of surveyed state court judges agree.
Florida, like the vast majority of states that elect judges, has implemented a modest, but important, measure to help insulate its judiciary from the pernicious influence of campaign spending. Under Florida’s ethical code, judicial candidates are prohibited from personally asking for campaign contributions. Instead, they are required to conduct all fundraising through a campaign committee. In Williams-Yulee, the Supreme Court will consider the constitutionality of this provision.
The rationale for Florida’s rule is simple. While states are free to choose their judicial selection methods, they are also obliged to protect the integrity of their courts. Florida, recognizing the unique threat posed by personal solicitation, adopted the rule at issue in Williams-Yulee, among others, in 1973 to protect its courts against rampant scandal and corruption.
Personal solicitation creates the impression that justice is for sale. An attorney who is personally solicited by a judge before whom she regularly appears may perceive the request as an offer for courtroom success in exchange for a financial contribution. At the very least, the attorney will likely feel that her decision whether to contribute will affect her treatment in court. This perception, shared by the public at large, threatens confidence in judicial integrity.
Florida’s regulation, while protecting a vital state interest, poses a narrow restriction on speech. Judicial candidates remain able to raise adequate campaign funds through a committee of their choosing. Indeed, Florida’s rule places no limitation on candidates’ ability to discuss their values, qualifications for office, or views on any issue; its only prohibition is on the direct “ask” for money.
Petitioner Lanell Williams-Yulee has been critical of Florida’s line drawing, arguing that the mass mailer she signed should not have been caught in the rule’s sweep. Several justices, however, appeared concerned at oral argument Tuesday about the inherently coercive effect of judicial requests. Justice Sotomayor, relying on her own judicial experience, observed that “[i]t’s very, very, very rare that either by letter or by personal call that I ask a lawyer to do something, whether it’s serve on a committee, help organize something . . . that that lawyer will say no.” Justice Breyer mirrored this sentiment, explaining that “when a judge says, can you please” then “the answer is yes.”
State supreme court justices, who have had the experience of both making requests of lawyers and raising campaign funds, have been particularly sensitive to the threat posed by direct solicitation. Every state supreme court to consider the question has upheld its state’s personal solicitation prohibition, whereas federal appellate courts have split. The resolution to this divide now lies with the Supreme Court.
Kate Berry works for the Fair Courts Project at the Brennan Center for Justice at New York University School of Law.
Passed in the wake of Dr. King’s assassination, the Fair Housing Act was the last of the momentous civil rights laws of the 1960s. Dr. King had warned against the harms of housing segregation, caused in large part by government-sponsored policies like redlining and racially-exclusive zoning. Senator Edward Brooke, R-Mass., who died recently and was the first popularly elected African-American Senator, was an original co-sponsor of the Act, along with Senator Walter Mondale, D-Minn. Senator Brooke stated that “residential segregation [had] become central” to the country’s “major domestic problems.”
The original Fair Housing Act banned discrimination on the basis of race, color, national origin and religion. Amendments signed into law by Presidents Ford and Reagan added protections against discrimination based on gender, disability and familial status.
The case before the Court is Texas Department of Housing and Community Affairs v. Inclusive Communities Project. A Dallas civil rights organization challenged the State of Texas policy of placing low-income housing only in African-American neighborhoods, thereby reinforcing racial segregation, instead of fairly distributing such housing across all communities.
The lawsuit raises a “disparate impact” claim under the Fair Housing Act. Essentially, this standard prohibits policies that appear neutral but unfairly exclude classes of persons in practice. It allows us to recognize and prevent harmful and inequitable policies so that everyone is treated fairly. The standard has been used to root out discriminatory policies not only in housing, but in employment, education, voting and environmental justice. As our Supreme Court amicus brief notes, “housing segregation imposes a wide array of socioeconomic harms that can only be fully eliminated through a framework that includes a disparate impact standard.”
In this case, U.S. District Judge Sidney Fitzwater found a violation of the Fair Housing Act based on the Texas policy’s disparate impact on African Americans. The U.S. Court of Appeals for the Fifth Circuit agreed that a violation could be shown by proving disparate impact but remanded the case to apply standards adopted by the U.S. Department of Housing and Urban Development, noting that “[t]hese standards are in accordance with disparate impact principles and precedent.”
Unfortunately, Texas chose not to defend its policy on the merits, but instead asked the Supreme Court to rule that the disparate impact standard cannot be used in claims under the Fair Housing Act. Texas’s petition asked the Court to decide two questions: 1) are disparate impact claims cognizable (meaning, available for use) under the Fair Housing Act; and 2) if disparate impact claims are cognizable under the Fair Housing Act, what are the standards and burdens of proof that should apply.
The Court agreed to consider only the first question. This was an aggressive move because, since the early 1970s, the Fair Housing Act has been interpreted to allow disparate impact claims. Courts have recognized that some forms of discrimination are covert and difficult to detect, but are just as harmful as intentional discrimination. The Fifth Circuit was among the first to do so. In 1973, it ruled that “it is not necessary to show that [defendant] intended to deprive [plaintiffs] of rights granted by the Act. A violation occurred because [the] words had that effect.” United States v. Pelzer Realty Co. In 1978, it held that “a significant discriminatory effect flowing from rental decisions is sufficient to demonstrate a violation of the Fair Housing Act.” United States v. Mitchell.
This method of proving discrimination is firmly embedded into our civil rights jurisprudence. It has enabled communities of color to challenge entrenched residential segregation patterns that would be impossible to eliminate on a house-by-house basis. Families with children have sued over apartment occupancy standards which limit the number of persons per bedroom. Victims of domestic violence have challenged public housing policies which evict them for violent incidents; no woman should have to choose between personal safety and a home for her family.
Unlike the split in authority among circuit courts leading to the Supreme Court’s review of same-sex marriage bans, there is no disagreement among courts about using disparate impact in fair housing law. Since the Nixon Administration first invoked this standard in fair housing cases, eleven circuit courts to consider the question have unanimously affirmed its use under the Fair Housing Act.
The recent tragedies in Ferguson and Staten Island have reignited a long overdue national discussion about racial inequality. Despite our best efforts, we are a long way from achieving the racial justice envisioned by Dr. King. Now is precisely the wrong time for the Supreme Court to eliminate longstanding protections for challenging systemic racial and other forms of discrimination in housing. The very fabric of our neighborhoods and communities across the country hangs in the balance.
Texas Senator Ted Cruz clerked for then-Chief Justice William Rehnquist, argued before the Supreme Court nine times, and was Texas’s Solicitor General. One might suspect he knows a thing or two about the Constitution.
But his knowledge of that document appears to be lacking – and his own constituents in Texas may end up paying the price.
Although three judicial nominees to longstanding Texas vacancies are set for a hearing next week, Senator Cruz has doubled down on his position that the Republican-controlled Senate should “not confirm a single nominee—executive or judicial—outside of vital national security positions” until President Obama rescinds his recent executive order on immigration.
Senator Cruz himself recommended these nominees to the president, and two of the three would fill benches considered “judicial emergencies” because of overwhelming caseloads in the Southern District of Texas. But the most striking thing about Cruz’s position is that it’s based on a bizarre and obvious misreading of the Constitution.
In a recent Politico Op-Ed, Cruz claimed that holding nominees hostage “is a potent tool given to Congress by the Constitution explicitly to act as a check on executive power. It is a constitutional power of the majority leader alone, and it would serve as a significant deterrent to a lawless president.” Then, responding to CQ Roll Call today, Cruz’s spokesperson said that “Sen. Cruz stands behind what he said” in Politico and that “holding nominations is a constitutional power given to Senate leadership and it is up to leadership to exercise that power.”
The problem is that while the Constitution empowers the full Senate to provide “Advice and Consent” on nominations, it makes no mention of Senate leadership, nor does it confer power to “hold nominations” on any individual senator—majority leader or otherwise. And there is no basis to claim that advice and consent exists “explicitly” to deter the president from issuing executive orders completely unrelated to judicial nominations.
There is no question that Senate Republicans have several means of obstructing the president’s nominees if they so choose; that was true even before they became the majority. But it’s misleading at best to give mere partisan obstruction and political gamesmanship the imprimatur of the Constitution. Ted Cruz knows better, and we think the American people do too.
In order to give borrowers the opportunity to carefully consider the terms of a mortgage, TILA allows borrowers to rescind, or cancel, a mortgage contract for any reason within three days of signing it. It also gives them three years to rescind if the lender fails to provide any of the required disclosures at the closing table.
The statute is very clear about how a borrower exercises that right to rescind: “by notifying the creditor. . .of his intention to do so.” Nonetheless, in recent years, lenders have argued that the statute actually requires that a borrower file a court action in order to rescind the contract. And they’d had some success with that argument, including in the federal appellate court that held Larry and Cheryle Jesinoski’s letter to Countrywide within the three-year period to be insufficient to rescind their mortgage.
This week’s decision squarely rejected that argument. Justice Antonin Scalia wrote that the statutory language “leaves no doubt” that a borrower need merely notify the lender to effect a rescission. And that’s good news for homeowners, or anyone who might like to become a homeowner, because the threat of rescission is supposed to make lenders very, very careful about providing borrowers with all the information about their mortgages at the time of closing. Requiring a borrower to file suit in order to exercise rescission would have significantly reduced the weight of that threat.
The foreclosure crisis has made abundantly clear that brokers and lenders are not always upfront with borrowers during the mortgage process, as TILA requires. During the subprime boom, lenders unscrupulously targeted communities of color for predatory loans, many with teaser rates and other features that hid the ultimate cost of the mortgage from the borrower. As the ACLU and other civil rights and consumer groups argued in our amicus brief in this case, broad access to TILA’s rescission remedy can provide crucial protection for individuals and communities harmed by foreclosure.
And, in recent years, the effects of foreclosure have been truly devastating, particularly for communities of color. More than five million homes have been lost to foreclosure since the real estate bubble burst, and these foreclosures have spillover effects on neighbors and neighborhoods: As of 2012, homeowners living within a city block of a foreclosure lost about $2.2 trillion dollars in property value attributable to those foreclosures, and more than one-half of that amount was concentrated in communities of color. A single foreclosure has been estimated to cost a city government $20,000.
It’s gratifying to see the Supreme Court reject the banking industry’s attempts to weaken protections for mortgage borrowers that are clearly codified in law. And there could be more. Next week, the Supreme Court will hear Inclusive Communities Project v. Texas Department of Housing and Community Affairs, the culmination of the banking industry’s attempt to weaken the Fair Housing Act by eviscerating the disparate impact standard. That standard has been crucial (and effective) in holding lenders accountable for discriminatory lending during the subprime boom and so, as with TILA rescission rights, the industry wants to see it gone. But, as in the TILA case, there is straightforward statutory and regulatory language that makes clear that the current state of the law is correct. Let’s hope, for all the sake of our communities, that the Court reaches the same conclusion.
Rachel Goodman is a Staff Attorney at the Racial Justice Program of the American Civil Liberties Union.