Tracking the latest developments in the fight for a fair America
A little over a week into the new Congress, and Senate Judiciary Chairman Chuck Grassley, R-Iowa, has already begun laying the groundwork to limit the number of President Obama’s judicial nominees the Senate will confirm.
As we detailed earlier this week, presidents have historically continued filling judicial vacancies even with an opposition Senate in their final two years of office. On average, 20 percent of a president’s total judicial confirmations—which would be 76 judges for President Obama—are confirmed in the final two years of office.
The Senate has not yet confirmed any nominees this year. Nonetheless, in a recent article, a Grassley spokeswoman said that the Senator has already started tallying his confirmations for the 114th Congress, presumably to limit the number of additional nominees the Senate will confirm.
Under Grassley’s version of new math, the current Senate has already confirmed 11 judges. Grassley counts these judges even though they were reported out of committee and confirmed not in the current Senate, the one in which Republicans are in the majority, but by the last Senate during its “lame duck” session.
Of course, these confirmations were not the accomplishments of Senator Grassley or Senate Republicans. In fact, Senator
Grassley delayed the confirmations for which he now seeks credit and opposed confirming any nominees reported out of committee during the lame duck session. Senate Republicans even blocked their own states’ nominees and forced Democratic leadership to file cloture motions on uncontroversial judges, all while many argued that confirmations should be shut down entirely during the lame duck.
Manipulating confirmation numbers and claiming credit where it isn’t due does nothing to fill the 44 current judicial vacancies and many more (25 already announced) that will open in 2015. It does nothing for people living in Pennsylvania and Texas, where numerous, longstanding vacancies and rising caseloads have left individuals waiting in line for justice.
Iowa’s largest newspaper has called on Senator Grassley to end obstructionist policies and confirm qualified judges to the bench, and Grassley himself has promised to hold hearings soon on pending nominees. We hope he chooses to do so.
This post also appears on the Legal Momentum Blog
If the EEOC investigates a complaint and finds that discrimination did occur, then it is supposed to try to “conciliate” the case—work with both sides to reach an agreement that ends the discrimination. If conciliation doesn’t work, either the discriminated-against employees or the EEOC itself has the right to sue in court to get the employer to stop discriminating and make the employees whole. To victims of discrimination who can’t afford a lawyer or are still working at their jobs and are afraid of retaliation, having the EEOC file a suit is a lifeline.
However, the EEOC’s ability to file lawsuits is under threat from employers claiming that the EEOC hasn’t tried hard enough to conciliate. This allegation is the subject of a case in the Supreme Court called Mach Mining, LLC v. Equal Employment Opportunity Commission, and the Court will hear arguments about it on January 13. This case began in early 2008 when a woman informed the EEOC that the Mach Mining company had failed to hire her or any other woman for a mining position, and after an investigation, the EEOC agreed. It spent a year trying to conciliate with Mach Mining, then gave up and filed a lawsuit in federal court. Mach Mining managed to delay the case for the next few years by trying to convince the court that the EEOC hadn’t really tried hard enough to conciliate, after all. Several appeals later, the Supreme Court will decide whether and how much a court can or should Monday-morning-quarterback the EEOC’s efforts at conciliation.
The answer to this question is important to victims of discrimination because that Monday-morning-quarterbacking prevents the EEOC from getting on with its job of pursuing lawsuits on behalf of victims of discrimination at work. Conciliation is a lot less work than a lawsuit, so the EEOC already has incentives to do it well. But if the EEOC has to convince courts that its conciliation process was a good one, that convincing takes additional time. It probably also means that the conciliation process itself will take even more time than it already does, because the EEOC will have to document its efforts even more strenuously, knowing it will later have to prove in court that those efforts were good enough. Mach Mining knows perfectly well that asking a court to review the EEOC’s conciliation efforts causes delays. Mach Mining knows perfectly well that delays work to its advantage when it comes to defending discrimination lawsuits, because over time people’s memories fade, witnesses move away with no forwarding address, documents and other pieces of evidence get lost, and victims of discrimination get frustrated and give up. All that delay prevents the EEOC from bringing lawsuits it needs to bring in order to enforce anti-employment-discrimination laws.
So while the EEOC is mired in endless conciliation, and then endless court time demonstrating that its conciliation efforts were sufficient, what happens to the employee who first reported that discrimination? Legal Momentum, together with Equal Rights Advocates, Sanford Heisler LLP, and sixteen women’s rights organizations and individuals, filed a friend-of-the-court brief in the Supreme Court explaining how the delays caused by court review of EEOC conciliation can have dire repercussions for women working in non-traditional occupations like construction and mining. Women everywhere experience sexual harassment, but the numbers are even worse for women who do what has traditionally been considered “men’s” work. Eighty-eight percent of women construction workers experience sexual harassment—more than three times the rate of women in the general workforce. And when the co-workers who are harassing you won’t support you in a job that is physically dangerous—like policing, firefighting, mining, and construction—then the consequences of harassment can be life-threatening. Equal Rights Advocates represents a female gold miner, one of only two women out of the 300 miners at her workplace who work underground. On several occasions, men have purposefully interfered with the underground microphone system while she drills so that she can’t communicate with her coworkers and her supervisor in an emergency. Concerned coworkers have told her that if she continues to “try to change the male culture of mining” (by being a woman in a mine), she should “watch her back” because some of the men working are “not very nice.”
Nobody should have to worry about harassment or physical violence from their co-workers; that’s what the federal employment anti-discrimination laws are for. But if the Supreme Court rules in favor of Mach Mining, that will make it significantly harder for the EEOC to do its job—and as a result, a lot of victims of discrimination out there will have a much harder time doing their jobs as well.
We’ll hear about the unprecedented nature of recent confirmations—that in six years President Obama has appointed nearly as many judges as President George W. Bush did in eight years, for example—and some will argue that, if the history of prior presidents is our guide, it’s only fair for the Senate to limit judicial confirmations in the last two years of President Obama’s administration.
In fact, history teaches precisely the opposite. Despite gaudy confirmation numbers over the last six months, Obama’s overall record on judicial appointments is hardly unprecedented or inflated. To the contrary, recent confirmations were the long overdue antidote for years of Republican obstruction. Historically, then, Obama’s recent success was more about catching up to his predecessors than setting himself apart. With this in mind, comparisons to how recent presidents fared in their final two years are all the more apt. And as it turns out, the three preceding two-term presidents, despite facing opposition Senates, each appointed about 20 percent of their total confirmed judges during that time. Read more
By Clark L. Taylor
Paul H. Tobias Attorney Fellow
The Employee Rights Advocacy Institute For Law & Policy
In a unanimous opinion authored by Justice Clarence Thomas, the United States Supreme Court held that warehouse workers filling amazon.com orders, do not have to be paid for time spent waiting for and passing through a rigorous security screening prior to exiting the workplace. In Integrity Staffing Solutions, Inc. v. Busk, the Court decided that the employees’ time was not compensable under the Fair Labor Standards Act of 1938 (“FLSA”). Justice Sonia Sotomayor wrote a concurring opinion, which Justice Elena Kagan joined, to expound on her understanding of the standards applied by the Court. The result is not entirely surprising given that the Obama administration filed an amicusbrief supporting Integrity Staffing arguing that the time was not compensable. The Supreme Court also ruled in favor of employers in two recently decided FLSA cases in June 2012 and January 2014. See Sandifer v. U.S. Steel, 134 S.Ct. 870 (2014); Christopher v. SmithKline Beecham, 132 S.Ct. 2156 (2012). The Integrity Staffing decision, which employers are hailing as a “clear victory,” comes at the expense of the workers who had to wait roughly 25 minutes each day to pass through security checkpoints after the end of their shifts.
Jesse Busk and Laurie Castro brought the case as a collective action on behalf of themselves and similarly situated employees. Busk and Castro were employed by Integrity Staffing at amazon.com “fulfillment centers” where items purchased through Amazon’s website were packaged and shipped. In an effort to prevent and deter theft, the warehouse workers were required to undergo a thorough screening in which they were compelled to remove items such as wallets, keys, and belts and pass through metal detectors. The employees alleged that the time spent passing through security could have been drastically reduced through either a staggering of shifts or adding more security screeners. Given that this time was spent to prevent employee theft, Busk and Castro argued that the screenings were conducted solely for the benefit of the employers and their customers.
The district court held that the time was not compensable under the FLSA because it was not integral to the performance of the employees’ principal duties and dismissed the complaint. The U.S. Court of Appeals for the Ninth Circuit reversed, finding the post-shift activities sufficiently indispensable because they were necessary to the principal work performed and for the benefit of the employer. Since the screenings were conducted at the insistence of the employer to prevent employee theft, the Ninth Circuit held that they were integral and done for Integrity Staffing’s benefit.
A federal district judge in the Western District of Pennsylvania has ruled that President Obama’s executive order on immigration is unconstitutional.
For those of us who know the track record of the judge – President George W. Bush appointee Arthur Schwab – the ruling comes as no surprise.
Paul Gordon of People for the American Way has already explained how Judge Schwab’s opinion betrays his ideological opposition to the president’s executive order. For example, Judge Schwab reached to declare the new policy unconstitutional without first deciding whether the policy even applies to the defendant in this case. He also harps on statements that President Obama made about immigration reform in 2011—statements that, Gordon points out, “make great fodder for Fox News, [but] don’t address the current executive actions, and the only reason to include them in a judicial opinion is to score political points.”
But while Judge Schwab’s opinion is troubling, it isn’t the first time his political views have trumped his duty to be an impartial judge.
In 2005, famed forensic pathologist Dr. Cyril Wecht had a public feud with Allegheny County District Attorney Stephen Zappala over Zappala’s failure to investigate or prosecute white police officers who had allegedly killed black citizens. Soon after, Wecht was indicted on public corruption charges that many believed to be politically motivated.
Judge Schwab was assigned to the case, and made a number of unorthodox rulings against Wecht. In one instance, he prohibited Wecht from making nearly any objection to the government’s 240,000 pages of evidence — including an objection arguing that some of the evidence was illegally seized. In another ruling, Schwab kept the names of the jurors under seal.
The first trial resulted in a hung jury. On appeal, the Third Circuit called Schwab’s rulings “inappropriate,” “troublesome,” and “strange and unsettling,” and took the unusual step of removing him from the case. Prosecutors decided not to retry the case.
More recently, Judge Schwab wrote an opinion that criticized the National Labor Relations Board for serving as the “litigation arm of the [Service Employees International Union].”
Given Schwab’s history of playing political favorites, it is no surprise that, when the Allegheny County Bar Association conducts its annual judicial survey, Judge Schwab consistently ranks dead last among state and federal judges in both temperament and impartiality.
Faced with Judge Schwab’s latest ruling, the Third Circuit should once again reverse, ensuring that President Obama’s executive order continues to protect millions of American children and families.