Tracking the latest developments in the fight for a fair America
John Cornyn passes the buck on Texas judicial vacancies
By Kyle C. Barry
AFJ Legislative Counsel
Somehow, Texas Senator John Cornyn’s brazen efforts to blame others for the judicial vacancy crisis in Texas have reached a new level of shameless. Cornyn has already blamed the president for failing to nominate judges in Texas, a contention he makes knowing that the White House will not nominate until the home state senators—in this case, Cornyn and fellow Republican Ted Cruz—make formal recommendations. But in a letter to the editor published Saturday, Cornyn makes an even less defensible claim, suggesting, nonsensically, that longstanding judicial vacancies in Texas are the fault of Senate Democrats not “willing to do their part.” In so doing, Cornyn makes no mention of the central role he and Cruz play in nominations, fails to draw any connection between Senate Democrats and his failure to make timely recommendations for judgeships, and ignores the extraordinary work Senate Democrats have done to confirm judges despite relentless and unprecedented Republican obstruction.
As we’ve detailed, the administration of justice in Texas is in crisis. There are 11 federal judgeships currently vacant in Texas (more than any other state), including two seats on the Fifth Circuit Court of Appeals. Of those 11, eight do not yet have a nominee, and seven are “judicial emergencies,” a designation for courts that do not have enough judges to handle their existing caseload. What’s more, even assuming all these vacancies are filled, the nonpartisan Judicial Conference, led by Chief Justice John Roberts, has called for the creation of eight new permanent judgeships in Texas. With such a dramatic shortage of judges, Texans must suffer through long delays to access justice, delays which can often mean that justice is denied altogether.
The blame for this crisis falls largely on Cornyn and Cruz. By longstanding tradition, home state senators have the primary responsibility to screen district court candidates, and the president will not nominate district court judges until the senators have made recommendations and approved the nominations. This restraint is with good reason, because it is difficult if not impossible for a nominee to be confirmed without home state senator support. Thus, the timely review of judicial candidates is one of the most important responsibilities that a senator has. However, although several of Texas’ vacancies have been around for years (one bench in the Western District has been empty since November 2008), Cornyn and Cruz did not begin the application process until last April, and that process didn’t even include all of the current vacancies. Now more than a year later, that process has yielded only three nominations.
In response to this dereliction of duty, the Dallas Morning News called on Cornyn and Cruz to “pick up the pace” in recommending candidates to the White House. But Cornyn thinks that’s unfair because Senate Democrats have likewise failed to “prioritize filling needed judgeships.” Specifically, Cornyn claims that Democrats spent too much time confirming the president’s three nominees to the D.C. Circuit Court of Appeals, while it took “many months” to confirm Judge Gregg Costa, whom both Cornyn and Cruz supported, to a Texas seat on the Fifth Circuit.
Cornyn’s defense, such as it is, fails for two distinct reasons. First, neither the D.C. Circuit nor Judge Costa’s confirmation has even the slightest relation to the longstanding Texas vacancies. The full Senate’s role in confirming judges is entirely separate from the process of soliciting applications and reviewing candidates for vacancies that do not have a nominee. Nothing about time spent on the Senate floor prevents Cornyn and Cruz from doing their jobs back home, and so Cornyn’s argument is more meager attempt at misdirection than substantive response on the merits.
Second, the claim that Senate Democrats are not “willing to do their part” on judicial confirmations, particularly when contrasted with Republican obstruction, is preposterous. The Senate “spent weeks” confirming three D.C. Circuit judges because Senate Republicans filibustered each of them, refusing to permit yes-or-no confirmation votes. This obstruction was prompted not by objections to the nominees’ qualifications, but by a partisan effort to prevent President Obama from appointing anyone to the D.C. Circuit. Indeed, Republicans went so far as to introduce legislation eliminating seats from the D.C. Circuit, and Cornyn himself bizarrely accused the president of “court packing.” That Cornyn now accuses Senate Democrats of dilatory conduct reveals how disingenuous his interest in an expedited nomination process really is.
As for Judge Costa’s confirmation, Cornyn writes that the Senate took “many months just to confirm” him, suggesting that the Senate accomplished nothing else during that time, and that Judge Costa had to wait an unusually long time for confirmation. Neither is true. Judge Costa was confirmed 152 days after he was nominated—third fastest among President Obama’s 50 circuit court appointees. Judge Costa’s confirmation was delayed, but that’s only because Senate Republicans forced a needless cloture vote and then wasted 30 hours of debate time before the Senate could vote. In fact, that’s exactly what Republicans have done for every judicial nominee in 2014. As retribution for Senate rules reform last November, which finally allowed confirmations for the D.C. Circuit nominees, Senate Republicans have wasted as much floor time as possible, requiring cloture votes for even the most non-controversial nominees, and then refusing to vote until the full allotment of debate time has expired. Yet despite this obstruction, Senate Democrats have already confirmed 55 judges this year, compared to just 28 at this point in 2013. With the Republican caucus so committed to gridlock and shutting down confirmations, the continued work of Majority Leader Harry Reid and the Senate Democrats to confirm judges makes clear who really cares about a functioning judiciary.
Ultimately, Cornyn’s rather half-hearted defense depends not just on the supposed failures of Senate Democrats that are irrelevant, but on the failures of Senate Democrats that do not exist. To his credit, he does “agree that judicial vacancies are an impediment to justice,” but until he and Senator Cruz accept responsibility for solving the vacancy crisis in Texas, justice for his constituents will be hard to come by.
By S. Douglas Bunch
Associate, Cohen Milstein
On June 23, 2014, the U.S. Supreme Court issued its decision in Halliburton Co. v. Erica P. John Fund, Inc. (“Halliburton II”). In rejecting Halliburton’s attempt to radically restrict the rights of investors, the Supreme Court affirmed the principles it announced over a quarter century ago in Basic v. Levinson, a decision that ensures investors have the opportunity to prove their claims—and those of other investors—in a class action.
Halliburton II had generated much anticipation and commentary due to its potential to threaten the continued viability of the fraud-on-the-market presumption of reliance recognized by the Court in Basic v. Levinson, 485 U.S. 224 (1988). Under the fraud-on-the-market presumption, publicly available information is assumed to be reflected in the market price of a stock, and, in turn, investors can be presumed to have relied on the information because their purchasing and sales decisions account for the price of the security. This eases the burden on investors, who need not show reliance on a defendant’s misrepresentations when bringing suits for securities fraud.
The presumption is crucial in class actions. Justice Thomas, joined by Justices Scalia and Alito, wrote an acrimonious concurrence to the Court’s opinion, in which he argued that Basic should have been overruled because “[l]ogic, economic realities, and our subsequent jurisprudence have undermined the foundations of the Basic presumption, and stare decisis cannot prop up the façade that remains.” Had Justice Thomas’s viewpoint prevailed, it might have meant the end of securities fraud class actions altogether, because without the Basic presumption, each individual investor in the class would have needed to demonstrate that he or she directly relied on the alleged misstatements when deciding to purchase or sell stock, making class certification in securities fraud cases nearly impossible.
However, in an important victory for investors, the Supreme Court in Halliburton II declined to overrule Basic and instead reaffirmed the principles underlying that decision. The Court rejected the arguments advanced by Halliburton that the fraud-on-the-market presumption is inconsistent with congressional intent, that the presumption is no longer justified by economic theory, and that the presumption is undermined by the notion that some investors do not rely on the integrity of the stock’s market price.
The Court also squarely rejected Halliburton’s policy arguments contending that Basic should have been overturned because of the supposed “harmful consequences” of securities class actions. The Court properly noted that the forum for addressing such concerns is Congress, not the courts. This portion of the Court’s ruling will hopefully put an end to the repeated and baseless anti-investor policy arguments raised by defendants during litigation in an attempt to curtail investor rights.
The Court did adopt one of Halliburton’s proposed alternatives to overruling Basic: defendants will now be allowed to attempt to rebut the presumption of reliance at the class certification stage by trying to present evidence that the misrepresentations did not affect the stock price. Defendants were already permitted to introduce such “price impact” evidence at the class certification stage to rebut a plaintiff’s showing that the stock at issue traded in an efficient market, and could even introduce such evidence, at the merits stage, to defeat the presumption of reliance itself. All the Supreme Court’s ruling in Halliburton II means is that defendants may now attack the presumption of reliance earlier, by submitting such evidence at class certification.
This changes very little. In fact, the Second and Third Circuit already allowed defendants to do just this. See, e.g., In re Salomon Analyst Metromedia Litig., 544 F.3d 474, 484 (2d Cir. 2008); In re DVI, Inc. Sec. Litig., 639 F.3d 623, 638 (3d Cir. 2011). The fact that the Supreme Court essentially just adopted the precedent of these Circuits should prevent defendants from attempting to make new arguments based on Halliburton II in those courts, and also defeat misleading arguments about the opinion’s meaning, like the fallacious notion that plaintiffs must now show a price increase to demonstrate price impact.
Affirming the continued vitality of Basic and the efficient market theory that underpins Basic is a significant victory for investors. The procedural guidelines imposed by the Court keep the burden on defendants to attempt to rebut the presumption of reliance with evidence that the alleged misrepresentation did not impact the price of a defendant’s stock. The ruling should not unduly restrict the rights of investors, and the conduct of securities class actions should not substantially change in the wake of the decision. Indeed, in her own concurrence, joined by Justices Breyer and Sotomayor, Justice Ginsburg made it clear that because the burden for demonstrating lack of price impact continues to rest solely on defendants, the Court’s ruling “should impose no heavy toll on securities-fraud plaintiffs with tenable claims.”
S. Douglas Bunch is a member of the Securities Fraud/Investor Protection practice group at Cohen Milstein. He is currently litigating multiple securities class actions.
From AFJ President Nan Aron’s latest column in The Huffington Post:
This is a very bad time for American women in the Supreme Court.
Three big cases were decided right at the end of its term that will profoundly affect women’s lives, subject them to conditions that are never applied to men, and damage their ability to control their own lives and health.
In McCullen v. Coakley, the Court in a “faux-nanimous” decision in which the four moderate-liberals clearly played defense, found that a 35-foot buffer zone around the entrance to abortion clinics in Massachusetts was a violation of the First Amendment. The Commonwealth had established the zones in reaction to the brutal murder of two people at a Boston clinic in 1994 and the endless harassment of women and their families attempting to enter reproductive health clinics.
But Chief Justice John Roberts, writing for the Court, swept aside reality, superimposed his own view of what happens outside clinics, and somehow found that so-called “sidewalk counselors” need to be protected more than the people who work at or make use of the clinics.
By Adam Sonfield
Senior Public Policy Associate, Guttmacher Institute
Burwell v. Hobby Lobby Stores on June 30 has already been the subject of reams and megabytes of analysis, speculation and rhetoric. You have undoubtedly read about how the majority’s decision, written by Justice Samuel Alito, allows closely held for-profit corporations—such as Oklahoma-based arts and crafts chain Hobby Lobby and Pennsylvania-based furniture manufacturer Conestoga Wood Specialties—to exclude coverage of certain contraceptive methods to which they have religious objections from the health insurance plans they sponsor for their employees and their family members, undermining a well-known requirement of the Affordable Care Act (ACA). And you have surely read about the concerns—raised in dissent by Justice Ruth Bader Ginsburg and commented on by the federal government and countless outside observers—that granting corporations religious rights that can let them ignore laws that apply to other companies could have a host of negative consequences for workers, customers and society.
(I have written here before about many of the key facts behind this case, including the benefits of contraceptive use for women and families and the importance of covering the full range of contraceptive methods and services without out-of-pocket costs, such as copayments or deductibles.)
As with many important Supreme Court rulings, this one raises far more questions than it answers. Here are some of the most important of those questions: Read more
By Gretchen Borchelt
Senior Counsel and Director of State Reproductive Health Policy, National Women’s Law Center
The majority opinion in Hobby Lobby erases women from the picture altogether. In a decision that is squarely about women’s health and equality, the male justices in the majority refuse to acknowledge the centrality of women. And in evidencing greater concern for protecting corporations from discrimination than in protecting women from discrimination, the majority opinion creates a hierarchy of discrimination where women are at the bottom (if they even merit consideration at all).
To begin with, Justice Alito’s opinion for the majority barely mentions women. As the Washington Post reported, the opinion uses the word “women” or “woman” a mere 13 times in 49 pages. Closer reading of the majority decision makes clear that seven of those mentions were either because the majority was refuting Justice Ginsburg (and her use of “women”); summarizing the government’s position (and its use of “women”) or describing the birth control coverage requirement (a simple recitation of fact).
That leaves precisely six instances in which the majority—on its own—mentioned the word “women.” There are two possible explanations. Both are troubling.
One is that the majority purposely, as a legal and literary strategy, left out “women”—the better to hide the actual women whose rights are at stake behind asserted concerns about religious freedom. Alternately, it was unintentional, but nevertheless the result of an unacknowledged but deep-seated and culturally-reinforced worldview that just does not take women into account.
Either way, women’s literal absence from the majority opinion highlights how this decision furthers legal doctrine that denigrates and erases women’s reproductive health and rights and recognizes certain forms of discrimination while dismissing others.
The majority opinion does this in a two-step process. The first is by treating birth control as different and less worthy of health coverage than other basic preventive health care services. This is clear in a passage that negatively compares the birth control coverage requirement to other coverage requirements like immunizations. Legal requirements to provide these other health care services are not automatically invalidated by this decision because, the majority explains, they “may be supported by different interests (for example, the need to combat the spread of infectious diseases).” In other words, the majority is saying, birth control is not like those other good, valuable preventive services that actually help people live better, healthier lives.
The majority opinion also merely assumes, for the sake of argument, that the interests served by the birth control coverage requirement—namely promoting public health and gender equality— are compelling and satisfy that prong of the Religious Freedom Restoration Act test. In making an assumption rather than delving into the analysis, the justices in the majority get to avoid any discussion of the benefits of birth control to women, including its place alongside immunizations in promoting public health and its value in furthering women’s equality by addressing discrimination in health care and promoting women’s social and economic opportunities. In fact, the majority opinion puts these interests in quotations, suggesting that they are questionable or invalid (believe me, they are not).
By setting up birth control as separate and less valuable than other health care needs, the majority opinion sets the stage for step two: creating a hierarchy of discrimination with women at the bottom.
The justices in the majority are very concerned about discrimination, but only when it appears to harm for-profit corporations. The majority opinion paints a picture of for-profit corporations that are trying to operate according to religious beliefs, but are threatened by discrimination at every turn. Focusing on the need to protect these corporations allows the majority to ignore the other harm that is at issue in the case: discrimination against women.
If birth control does not really promote public health, then it doesn’t matter if taking the benefit from these female employees means more unintended pregnancies. If requiring insurance plans to cover birth control isn’t acknowledged to close gender gaps in health care, then it doesn’t matter if only female employees lose a health insurance benefit that they earned with their work. If gender equality is not a real result of birth control access, then there is no need to consider whether women are forced to give up educational or career opportunities. If birth control is not directly linked to a woman’s health and the course of her life, then sex discrimination deserves no attention by the majority. And so it gets none.
The bottom line for the majority is that when discrimination against women is tied to their reproductive health, it is different from other forms of discrimination and consequently less important. In this case, it is certainly less important to the majority than protecting for-profit corporations—which the majority decided, for the first time, can exercise religion—from asserted religious discrimination. That justifies the decision’s final conclusion: it is not just acceptable but legally required that the religious beliefs of bosses are allowed to trump a woman’s health and access to the health care she needs.