Tracking the latest developments in the fight for a fair America
There is no doubt the state of Texas is at the epicenter of what is a growing judicial vacancy crisis. It has the most judicial vacancies of any state in the country (nine, all without a nominee), a quarter of the nation’s judicial emergencies, and some of the longest-standing vacancies in the judiciary. Former Southern District of Texas Judge Janis Graham Jack’s seat has been vacant for over four years. Former Fifth Circuit Judge Emilio M. Garza’s vacant Texas seat is fast approaching its third anniversary.
Yet, despite this dire situation, Senator John Cornyn, R-Texas, wrote in a recent letter to the editor that he had been “working . . . to fill openings as they arise,” pointing to the confirmation of 12 Texas judges in the past six years of President Obama’s administration.
While we commend Senator Cornyn for working with the president to find 12 qualified judges, that hasn’t been nearly enough to keep pace with the growing number of vacancies in the state. As we have noted many, many times, confirmation totals are meaningless unless considered beside the number of vacancies that need to be filled. There is no magic number of confirmations that is “enough”—empty benches need judges.
And far from “filling openings as they arise,” the senator’s sluggish pace on nominations and confirmations has allowed Texas vacancies to amass. As we detail in our report on Texas, Senators Cornyn and Ted Cruz, R-Texas, have refused to screen candidates for seats they know will soon be vacant, waiting instead until the judge leaves office with no one to take on their workloads. Several judges—to no avail—have given the senators a year’s notice of their intent to retire and urged them to start seeking a replacement immediately. This inefficient approach only allows current vacancies to languish and new retirements to pile up.
The nine vacant Texas seats have now sat empty for a combined 13 years. If Senator Cornyn is serious about finding “high-caliber legal minds” for the bench, there are plenty of places to start. Rather than focus on what he’s accomplished, it’s time to look at what’s left to do.
And a Supreme Court decision is likely to help keep it that way
Recent lawsuits have revealed incredible stories of malfeasance, indifference, and incompetence. In one case, an inmate with a bump the size of a tennis ball on his arm, began going numb and twitching uncontrollably. He soon felt “his intestines escaping from his rectum.” A prison nurse gave him Tylenol and used K-Y Jelly to push his intestines back in, and then sent him to his cell. Hours later, doctors at a local hospital diagnosed him with an abscess which was compressing his spine. In another case, an inmate suffering from diabetes spent nearly a week in a cell without food, water, or his insulin. He died shortly after. The two largest prison healthcare providers have been sued over 1,750 times in the past five years.
But just as worrisome is the number of lawsuits which were never brought.
A report produced by Alliance for Justice earlier this year describes the labyrinth inmates must navigate in order to sue prison officials for medical malpractice and other constitutional violations—and how a misstep could lock them out of the courthouse doors forever. Under the Prison Litigation Reform Act (PLRA), enacted in 1996 to “solve” the non-existent problem of runaway frivolous litigation, inmates essentially lose the ability to sue in civil courts once they have had three previous civil cases “dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted” (the so-called “three-strikes” rule).
In the two decades since its passage, federal courts have expanded nearly every aspect of the PLRA. Many courts give multiple “strikes” in a single case, strikes for procedural missteps, strikes in cases that go to trial, and even strikes in cases where the inmate wins a settlement. The Supreme Court exacerbated the problem this term by even further expanding the three-strikes rule in Coleman-Bey v. Tolefson.
The law leaves victims of medical malpractice in prison with a difficult choice: sue the prison and risk losing and never being able to sue for prison misconduct again, or continue to suffer in silence. Many already have the choice made for them. For those with three strikes, there’s virtually no judicial recourse available at all.
The PLRA was passed because lawmakers believed too many inmates were suing. But as the new report from CJ&D suggests, maybe the real problem was too many prisons deserved to be sued.
The Senate confirmed its first appeals court judge of the year last night, unanimously approving Kara Farnandez Stoll for a seat on the U.S. Court of Appeals for the Federal Circuit. Stoll waited more than two months on the Senate floor for a vote, enduring needless delay that has become the norm under Republican leadership. More than six months into 2015, the Senate has confirmed only five judges, and four of them were district court nominees selected and recommended by their own Republican senators. By comparison, during the penultimate year of President George W. Bush’s administration in 2007, Senate Democrats had confirmed 25 judges by July 9.
In floor speeches before the vote yesterday, Senate Democrats hammered Republicans for the confirmation slowdown. Minority Leader Harry Reid said that confirming only one circuit court nominee so far is an “embarrassment,” and accused Senate Republicans of “failing in their basic constitutional responsibility to provide advise and consent” on judges. “The Republican Leader [Mitch McConnell] and his party are on pace to confirm the fewest judicial nominations in half a century,” Reid noted. It’s actually even worse: the Senate hasn’t confirmed 10 or fewer judges since 1953.
In response, Judiciary Committee Chairman Chuck Grassley lamely defended the pace of confirmations in written remarks, asserting that “there shouldn’t be any complaining about following the same standard we did in 2007.” Grassley supported his view with three well-worn talking points that do not survive even the most cursory review. Yet they are worth refuting here, if only because they are commonly given to reporters covering Senate confirmations. It’s time to set the record straight once and for all.
Let’s take each point in turn.
- Grassley’s first argument is based on a meaningless comparison of raw confirmation totals. He pointed out that President Obama has had 312 judges confirmed, while at this same point in 2007 President Bush had only 279. “That’s 33 more judicial nominees confirmed” for Obama, Grassley said, “[s]o, this president and his judicial nominees are being treated as fairly, if not more fairly, than the last president.” The problem is that Obama’s higher confirmations are explained by the higher number of judicial vacancies he has had to fill, not by preferential treatment in the Senate. At this point in their respective presidencies, Obama has faced 47 more vacancies than did Bush, which means that, with only 33 more confirmed, Obama’s confirmations are actually falling behind.
- Next, Grassley defended his own work as chairman, saying “[w]e’re . . . moving judicial nominees in [the Judiciary] Committee at about the same pace as we did at this point in President Bush’s presidency.” On this point, Grassley’s sleight of hand is to include both executive and judicial nominees in his numbers. But when the focus is on judges, a discrepancy appears: only 13 judicial nominees have had hearings so far this year, while at this point in 2007 Democratic Chairman Patrick Leahy had convened hearings for 17 nominees. And lest anyone think the committee has been overly burdened with executive nominees, recall that Grassley has gone weeks without a confirmation hearing, and in one instance called a hearing with only two judicial nominees on the witness list.
- Third, Grassley invoked his own fuzzy math argument, claiming credit for the 11 district court judges that Senate Democrats voted out of committee and confirmed during the lame duck session at the end of last year. He claims that, per Senate tradition, these nominees should have been held for confirmation votes under the new Senate majority. He again pointed to confirmations in 2007: “In 2006, the Senate returned 13 judicial nominees to the President. Those nominees were then re-nominated in 2007, and confirmed in the new Congress. Had Democrats followed standard Senate practice, we would’ve voted on those 11 nominees at the beginning of this year[.]”
But what Grassley refers to as “standard Senate practice” was in fact nothing more than the obstruction of a single Republican senator. At the end of 2006, Republican Senator Sam Brownback blocked a vote on district court nominee Janet Neff because she once attended, as a guest of longtime neighbors, a same-sex civil commitment ceremony. As The New York Times reported at the time, Brownback’s objection, not “Senate practice,” was the only reason nominees were returned to the president: “Judge Neff’s nomination was included in a package of more than a dozen nominees whose confirmation had been agreed upon by both Democrats and Republicans. Mr. Brownback’s objections held up the whole roster of nominees.”
And that’s it. These are the best reasons Republicans can muster to explain why, under their watch, judicial confirmations are headed toward historical lows. It’s obvious that Senate Republicans are intentionally keeping our federal courts understaffed, delaying justice for Americans all across the country, to preserve as many vacancies as possible for what they hope is a future Republican president. Their talking points to the contrary are mere pretext to disguise a purely partisan agenda, and they should be called on it.
On June 25, 2013, in its notorious decision Shelby County v. Holder, the Supreme Court dismantled the Voting Rights Act, one of the most important and effective civil rights laws in our nation’s history.
The pending Voting Rights Amendment Act (VRAA) would help restore some of the voting protections that were lost in Shelby County, but, despite its bipartisan support, Republican leadership has balked at moving it forward. So on June 25 of this year, precisely two years after Shelby County was decided, hundreds of activists from dozens of organizations joined together near the Roanoke, Va., office of House Judiciary Committee Chairman Bob Goodlatte, R-Va., to demand full restoration of the Voting Rights Act. Among those at the “Rally for Voting Rights and Our Democracy” was Alliance for Justice summer associate Blake Paradis, who recounts her experience below.
At 7:00 a.m., I arrived at Union Station to find four busloads of activists ready to revive the Voting Rights Act. Organized by The Leadership Conference on Civil and Human Rights, groups representing the span of environmental, labor, civil rights, and others shared stories, practiced chants, and connected over the course of a four-hour bus ride. Although we represented groups with different constituencies and different priorities, everyone was committed to restoring the essential voter protections that the Supreme Court cast aside in Shelby County.
Upon arriving in Roanoke, we were warmly greeted with cheers and applause from locals thanking us for our support. Speakers at the rally described the significance of democracy for all of our initiatives and pushed us to engage our communities. Looking at the vast diversity among us, it was hard not to feel inspired. Media stations from around the country covered the rally, from social media and local news to the Ed Show on MSNBC, media outlets displayed our call to restore the Voting Rights Act.
Congressman Goodlatte has said that an update to the Voting Rights Act is unnecessary unless new evidence of voter discrimination surfaces, but the activists in Roanoke, congressional leaders, and voters navigating an ever-expanding list of restrictive ballot access laws all know how badly a fix is needed. The day after our rally, Senator Patrick Leahy, D-Vt. introduced a new piece of reform legislation, the Voting Rights Advancement Act of 2015, with House leaders from the Black Caucus, Hispanic Caucus, and Asian Pacific American Caucus.
After the Supreme Court gutted sections 4 and 5 of the Voting Rights Act in Shelby County v. Holder, Congress began working on the Voting Rights Amendment Act. But it quickly became clear that Republican leadership in Congress would not support an amendment. So instead, Senator Leahy introduced the Voting Rights Advancement Act of 2015 to provide a more comprehensive set of voter protections than proposed in the VRAA. The new legislation also responds directly to the concerns identified by the Supreme Court in Shelby County. “The previous bill we did in a way to try and get bipartisan support—which we did,” Senator Leahy told The Nation. “We had the Republican majority leader of the House [Eric Cantor] promise us that if we kept it like that it would come up for a vote. It never did. . . . So this time I decided to listen to the voters who had their right to vote blocked.” The new bill requires the Department of Justice to pre-approve changes to voting laws in states that have had 15 voting violations in the past 25 years, provides greater transparency in elections, and gives federal courts the ability to force states to obtain preclearance if voting changes are found to be discriminatory.
The activists I met in Roanoke have vowed to stay vigilant protecting voters in their communities, and they’re not alone. Rallies like the one I attended are expanding all across the country. Momentum is building to restore the VRA. The words Miles Rapoport, president of Common Cause, shared at the event are hitting home to Americans across ideological and political spectrums: “we want to live in a democracy where people select their representation, not one where representatives get to choose who can vote.”
The Supreme Court’s very last decision for the term, Michigan v. EPA, grants a challenge to the the EPA’s long overdue limits on toxic pollution from coal-fired power plants by a coalition of power companies, coal mining companies and allied states. In a narrow 5-4 decision, Justice Scalia portrayed the EPA as having unreasonably refused to consider cost when the agency decided that controlling power plants’ toxic pollution is “appropriate and necessary.”
Some of the petitioners asked the court to vacate the limits – i.e., throw them out altogether. Instead, the court merely remanded the rule to the D.C. Circuit Court for further proceedings consistent with its holding that the EPA should have considered cost. That choice of remedy was important: the rule will save up to 11,000 lives each year, and vacating or blocking it, as some coal mining and power companies requested, would cause thousands of people to die unnecessary premature deaths.
Further litigation in the D.C. Circuit is all but certain. Nothing in the Supreme Court’s ruling, however, requires the EPA to withdraw or even change the limits. All the EPA has to do is explain why it believes that limiting power plants’ toxic emissions is “appropriate and necessary” when the costs to industry are considered. As Justice Scalia explains, the majority opinion does not require a formal cost benefit analysis and leaves it “up to the agency” to decide “how” cost should be considered.
The EPA can provide the desired analysis quickly because it already has considered the cost to industry and concluded that the costs are vastly outweighed by the public benefits of controlling power plants’ pollution. Reducing power plants’ emissions of fine particulate matter will save between 4,200 and 11,000 lives every year as well as preventing thousands of non-fatal heart attacks and asthma attacks, and hundreds of thousands of lost work days. The economic value of those health benefits to the public is between $33 billion and $90 billion per year – approximately $3-$9 in public benefits for every $1 in cost to industry. The court did not take issue with any of these findings. Rather, it faulted the EPA for not including them in its justification for the rule.
The majority’s reasoning in this decision is disappointing. It is not obvious, as the majority assumed, that Congress intended the EPA to consider cost when it determined whether regulating power plants’ toxic emissions was appropriate and necessary. As the dissent points out, it is at least as likely that Congress intended the agency to base that initial decision on public health and environmental concerns and reserve the consideration of cost to a later stage in the regulatory process when the EPA would know what reductions were required. Justice Scalia’s comparison of the EPA’s careful and reasoned approach to buying a Ferrari without asking the price is not just shallow, but wholly inappropriate for health protections that will save thousands of lives each year.
What matters now, though, is still what mattered when the EPA concluded almost 15 years ago that regulating power plants’ toxic emissions is appropriate and necessary. Coal-fired power plants remain the worst of the worst industrial polluters. They still emit more toxic pollution than any other industry and, in the case of some pollutants like mercury and arsenic, as much or more than every other polluting industry combined. Then, as now, mercury from power plants contaminates lakes and rivers across the country and, because they eat the fish in these waters, thousands of American women have enough mercury in their bodies to endanger the health of their nursing infants and unborn babies. Then as now, people die every year from breathing pollution that the power companies could have prevented.
This situation is unnecessary and unacceptable. The good news is that the EPA has gone a long way to fixing it and the Supreme Court’s decision, for all its flaws, has not stopped this progress. The Obama administration can satisfy the court’s decision and keep the vital health protections that its limits on power plant pollution provide. By doing so, it will secure a great legacy of controlling the worst and longest-lasting air pollution threat that this country faces.