Tracking the latest developments in the fight for a fair America
A ruling by the Fifth Circuit Court of Appeals on Tuesday will close over 30 abortion clinics in Texas, likely leaving fewer than 10 open across the state. It’s no surprise to see the circuit’s judges rule against women’s rights. As we explained in a 2013 report, the decisions of the court’s Republican-appointed majority often reflect the conservative policy agenda of the presidents who appointed them, including opposition to reproductive rights.
The court upheld two state laws, one of which requires abortion providers to have admitting privileges at local hospitals and the other which requires abortion facilities to meet stringent ambulatory surgical center standards. These laws, like many others across the country, are passed under the guise of protecting health and safety. In reality, they are thinly-veiled attempts to shut down abortion clinics completely. Many facilities can’t afford the high costs of compliance, and local hospitals often refuse to grant admitting privileges. In Mississippi, for example, a similar law threatens to close the state’s last remaining clinic—a story told in AFJ’s 2013 film, Roe at Risk.
Tuesday’s decision is the latest in a string of rulings restricting access to abortion across the circuit. And two of its authors, President George W. Bush appointees Jennifer Walker Elrod and Catharina Haynes, are at the center of this trend.
Last year, both judges joined Judge Edith H. Jones in a similar ruling which upheld Texas’s hospital admitting privileges requirement and a restriction on medication abortions. Despite predictions that upholding the laws would leave 24 counties in the Rio Grande Valley without an abortion provider, the panel sided with the state because most women in Texas don’t live in the Valley. In other words, the court denied a constitutional right to an entire subset of Texas women—namely, those who live in rural areas and who cannot afford to travel long distances to find a provider. Judge James L. Dennis, dissenting from the full court’s decision not to review the case en banc, said the ruling “threaten[s] to annihilate the constitutional protections afforded women under Roe [v. Wade].”
Both judges also joined Judge Priscilla R. Owen in 2013 to stay a district court’s injunction against the laws. That ruling was left in place by the Supreme Court in a 5-4 decision.
In 2013, Judge Haynes voted to uphold a Louisiana law that broadened the malpractice liability of abortion providers by allowing women to sue for damages to the fetus, while also denying them access to the state-run malpractice insurance fund. By increasing the cost of providing abortions, the law could drive providers out of the state.
The Supreme Court may end up having the last word. A different Fifth Circuit panel—of which neither Haynes nor Elrod were members—struck down the Mississippi laws profiled in Roe at Risk, and that decision has been appealed to the Supreme Court. In the coming weeks, the Court is expected to decide whether to take the case. If it does, it should affirm the ruling and make clear to all the circuit’s judges that women’s constitutional right to abortion must be protected.
Last week, when asked if only district court judicial nominees—signed off on by Republican senators—would be confirmed this session, Senator Majority Leader Mitch McConnell responded that it was “highly likely.” Later, a spokesperson clarified that “[w]e probably will have a circuit court nominee” confirmed.
Either way, these comments represent a major retreat from the “regular order” McConnell promised upon becoming majority leader. Both Republican and Democrat-controlled senates have confirmed appellate court nominees in the final two years of an opposition presidency, usually in states with a senator from the president’s party. This Senate, by contrast, has failed to confirm a single appellate court judge. Under Senator McConnell’s leadership, eminently qualified nominees have been slow-walked through every step of the process.
L. Felipe Restrepo, a nominee to the Third Circuit, has waited over 200 days for a hearing in the Senate Judiciary Committee despite support from Republican Senator Pat Toomey. Judge Restrepo will finally have his hearing tomorrow afternoon. Soon after, the committee should report him to the Senate floor. How long his nomination languishes there will be yet another test of McConnell’s commitment to regular order.
In the last Congress of President George W. Bush’s second term, Senate Democrats confirmed 10 circuit nominees. They included vacancies in states represented by Republicans, Democrats, and mixed delegations. Most notably, Judge Leslie Southwick was confirmed to the Fifth Circuit despite opposition from progressive advocacy groups and three-fourths of the Democratic caucus.
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“Probably” confirming “a circuit court nominee” would make this Senate historic—just not in the way Senator McConnell would like. It would mark an unprecedented level of obstruction rather than the regular order the American people were promised. Our nation’s appellate courts need to be filled. It’s time for the Senate to start confirming judges.
With Majority Leader Mitch McConnell stalling every nominee on the Senate floor, judicial confirmations have been hard to come by in 2015. Only four judges have been confirmed, and even nominees selected by their own Republican senators have suffered from McConnell’s obstruction.
On May 21, when the Senate doubled its grand total of judicial confirmations from two to four, it did so by unanimously confirming two district court judges who each endured a nearly three-month wait on the Senate calendar.
Such delay is never justified, particularly for uncontroversial consensus nominees. The Senate has a constitutional obligation to confirm judges, and long delays can hamper the administration of justice and keep everyday Americans locked out of court.
Four district court nominees voted out of the Judiciary Committee today are especially compelling examples of this point, as they’ve been nominated to some of the most overburdened courts in the country.Three of the four would fill officially designated “judicial emergencies,” and the fourth, a nominee to the Western District of New York, would sit in a Buffalo courthouse that is now without an active judge for the first time in at least 55 years. These nominees were voted out of committee with bipartisan support, and should be immediately confirmed so they can start working for the American people.
Dale Drozd would fill a longstanding judicial emergency (the vacancy is nearly 1000 days old) in the Eastern District of California, where he currently serves as a Magistrate Judge. At his confirmation hearing, Drozd testified about the district’s crushing caseload that has persisted for more than a decade. He said that the court was in a “crisis situation” with judges effectively “maxed out.” The overwhelming caseload, Drozd said, “has tremendous impact on our ability to deliver justice within our district.”
EDCA Judge Lawrence J. O’Neill echoed that same concern when the Wall Street Journal asked him about growing caseloads and long delays in the district. “Over the years I’ve received several letters from people indicating, ‘Even if I win this case now, my business has failed because of the delay. How is this justice?’” he said. “And the simple answer, which I cannot give them, is this: It is not justice. We know it.”
Indeed, Judge Drozd’s confirmation would only begin to solve the district’s problems. The non-partisan Judicial Conference of the United States found that caseloads would remain too high even if every vacancy were filled, and recommended Congress double the number of EDCA judgeships from six to 12.
In the Western District of New York, multiple vacancies in Buffalo leave the city without a single active federal judge for the first time in over half a century. Lawrence Vilardo, voted out of committee today, would fill one of them. Despite the willingness of some senior judges to continue taking cases, Buffalo is currently experiencing one of the nation’s worst backlogs, with civil cases taking an average of five years to go to trial. As reported in The Buffalo News, 14 percent of the civil cases in the Western District are more than three years old, and the district’s 744 new cases per judge last year place it in the top 10 of federal districts nationwide.
Magistrate Judge Hugh B. Scott, who sits in Buffalo, just announced that he is stepping down from active status, but will continue to hear cases because the court’s workload will not permit him to retire. “I could have completely retired,” he told The Buffalo News, “but I know the caseload here. Quite frankly, I don’t want to burden the other magistrate judges with my caseload.”
The other two New York nominees, LaShann DeArcy Hall and Ann Donnelly, are both nominated to the Eastern District, and have been waiting since last November to fill judicial emergencies.
On Mitch McConnell’s watch, the number of judicial vacancies, including those designated as judicial emergencies, has steadily grown over the last five months. But with the four nominees voted out of committee today (and the three pending nominees they join on the Senate floor), McConnell and the Republican majority have an opportunity to do the right thing: confirm them now.
The condition of prisons in the United States today is deplorable. Housing is overcrowded. Prisoners live in fear of violence. The use of solitary confinement—despite its toll on prisoners’ mental health—is on the rise. Often, the only recourse inmates have is through the federal court system.
But after a Supreme Court ruling Monday, even that recourse will be tougher to come by.
The Prison Litigation Reform Act (PLRA), passed in 1996, was an attempt by Congress to limit what it perceived as runaway, frivolous inmate litigation. Once a prisoner has three civil lawsuits dismissed by a court as frivolous (his or her three “strikes”), the act effectively prohibits the inmate from bringing another case while incarcerated. Without the ability to bring suit, prisoners have essentially no remedy when they are attacked, denied medical treatment, or are otherwise the victims of cruel and unusual punishment.
As detailed in AFJ’s report “An Expanding Strike Zone,” lower federal courts have been expanding nearly every element of the PLRA for the past two decades. Far from being a tool to stop frivolous lawsuits, the law now acts as a litigation minefield for prisoners, locking them out of the courthouse for technical errors, poor timing, and even reasonable arguments that end up losing.
Now the Supreme Court has taken its first step toward expanding the act. In a unanimous ruling, the Court held in Coleman-Bey v. Tollefson that so-called “pending strikes”—that is, cases that are dismissed as frivolous by the district court, but are being appealed—count towards a prisoner’s three strikes. Andre Lee Coleman-Bey, the plaintiff in the case, is an inmate in Michigan who brought a lawsuit against prison officials for interfering with his access to the courts. Coleman-Bey had brought two previous civil cases that were dismissed. He then brought a third case, which was dismissed by the trial court, and he appealed. That appeal is still pending. When Coleman-Bey attempted to bring this suit, the district judge ruled—and Monday, the Supreme Court agreed—that he was “struck out” and unable to bring the case.
The ruling means that prisoners can be prevented from bringing lawsuits if a district judge rules against them on a third strike, even if the judge’s decision was clearly incorrect, until the appeals court overturns it. Worse yet, the PLRA essentially prohibits prisoners from appealing cases once they have three strikes. Under the logic of the Court’s ruling, an inmate could be prevented from even being able to appeal the third strike an erroneous district judge gave him or her.
The Supreme Court disagreed with a vast majority of the circuit courts in coming to its decision. The First, Third, Fifth, Eight, Ninth, Tenth, and DC circuits all refused to count pending strikes against prisoners. Only the Sixth and Seventh circuits reached the same conclusion as the Supreme Court.
Monday’s decision is unlikely to be the last time the Court addresses the PLRA. Circuit courts continue to disagree on how and when the three-strikes rule applies to inmate lawsuits. One prominent judge on the DC Circuit has expressed “grave doubts” about the constitutionality of the three-strikes rule altogether. When these issues come to the Supreme Court, the justices should protect access to justice for incarcerated Americans who need it the most. The current trend of restricting their rights far beyond what the drafters of the PLRA could have envisioned only serves to protect wrongdoers and to delay the reforms our prison system so desperately needs.
Yesterday Carrie Severino of the Judicial Crisis Network (recall that, during the George W. Bush administration, this same group called itself the Judicial Confirmation Network) took to the National Review Online to scold Democrats for “whining” about the pace of judicial confirmations in the Republican-controlled Senate.
Citing the number of nominees who have had Judiciary Committee hearings, she argued that “[j]udges are moving along faster now than they did under Bush” in 2007, when a Democratic majority held the Senate. This argument not only gets the history wrong—conveniently omitting every relevant fact that disproves it—but ignores the essential need to fill vacancies and confirm judges no matter the historical precedent.
Before delving into historical comparison, consider how remarkably little this Republican Senate has accomplished. In nearly six months, the Senate has confirmed a total of two—two!—judges. There remain five more judicial nominees waiting on the Senate calendar, including three who have been pending since February, but Majority Leader Mitch McConnell has yet to schedule their votes. With so few confirmations, vacancies have shot up from 43 on January 1 to 57 (two more than when Obama took office in 2009) as of today. Moreover, the number of “judicial emergencies”—the official designation for courts without enough judges to handle existing caseloads—has doubled from 12 to 24.
Contrary to Severino’s assertion, things have not moved faster in committee. Severino makes the misleading claim that Judiciary Committee Chairman Chuck Grassley has “held five hearings and considered 14 nominees” this year, but fails to mention that only three of those hearings included nominees to Article III judgeships, for a total of 10 nominees. And for the hearing held on March 11, Grassley listed just two judicial nominees, passing over five nominees who had been nominated back in November 2014. Most egregiously, Grassley has forced Third Circuit nominee L. Felipe Restrepo to wait (so far) more than six months for a hearing, even though Judge Restrepo has the support of Republican home-state Senator Pat Toomey, and was confirmed to a district court seat without opposition in 2013.
With vacancies rising and qualified nominees pending, the Senate has a constitutional obligation to act, and that obligation does not depend on the historical pace of confirmations. Intentionally slow-walking nominees, as Senate Republicans have done all year, is nothing more than an attempt to score political points at the expense of everyday Americans who depend on access to courts and federal judges to protect their rights.
And yet, Severino’s claims fare no better even assuming that history is the relevant touchstone. At this point in 2007, Senate Democrats had confirmed 18 of President Bush’s judicial nominees, including three to the circuit courts of appeals. That Senate eventually confirmed 68 judges, meaning that more than 20 percent of George W. Bush’s judicial appointments came during his final two years. At its current rate, the Republican Senate led by Grassley and McConnell is projected to confirm a total of 9 judges. In addition, while President Obama has seen vacancy numbers rise during his seventh year in office, Senate Democrats had reduced vacancies from 56 to 50 at this point in 2007. Given this overwhelming disparity, it’s obvious that judges are not moving faster now than they were in 2007—they are, in fact, moving 89 percent slower.