Tracking the latest developments in the fight for a fair America
Nominations are a good start, but it’s only just over a quarter of the job
We are pleased that, at long last, Senators John Cornyn and Ted Cruz stopped dithering long enough to allow President Obama to send the Senate nominees to fill three vacancies on federal courts in Texas. And we are pleased that, in keeping with his strong record on diversity, one of the President’s nominees would be the first openly gay judge on the Texas federal courts.
But Cornyn and Cruz still have done little more than a quarter of the job. There still are eight judicial vacancies without nominees in Texas – the most, by far, of any state. California and New York, for example, have only one each.
- Texas still has more than a quarter of all vacancies nationwide for which there is not even a nominee (eight out of 30).
- Six Texas seats on United States district courts still are vacant without nominees.
- There are two more Texas vacancies on the U.S. Court of Appeals for the Fifth Circuit.
- It’s been 2,035 days – more than five years – from the day Judge Royal Furgeson stepped down from his bench in the Western District until today – when a replacement finally was nominated.
- Three more Texas federal judges have announced plans to retire or take senior status – so soon there will be three more vacancies to fill.
- None of the nominees would fill a seat in the Southern District, which has the most vacancies.
All this would be bad enough in any state, but it’s worse in Texas, which wouldn’t have enough judges even if every bench were filled. According to the Judicial Conference of the United States—headed by Chief Justice John Roberts—Texas needs at least eight new judgeships to meet its growing federal caseload, in particular criminal cases, which have skyrocketed in recent years.
We intend to keep the pressure on Senators Cruz and Cornyn to make sure today’s nominations are only the beginning. And if you’re from Texas, you can help!
The computer giant is trying to force us into forced arbitration
Microsoft, the company that gave us Vista, Ctrl-Alt-Delete and Clippy, has something in store for us that’s even worse. The company has been phasing in forced arbitration clauses in its “services agreement.”
That means if you are harmed by a Microsoft product or service, you can’t stand up for your rights in court. Instead, you have to take your case to an arbitrator hired by Microsoft. Arbitrators do not need to be lawyers or follow precedent, yet their word is nearly always final and unappealable. One study found that such arbitrators rule for the businesses that hire them 94 percent of the time.
Microsoft also won’t let you band together with others the company has wronged and bring a class-action suit – often the only way to stop a corporation from cheating millions of consumers. The latest version of the services agreement makes this ban even more strict.
One can see why Microsoft might be fond of forced arbitration. In a 2003 e-mail, company founder Bill Gates used the following terms to describe what it was like to use one of his own products:
disappointed, backwards, unusable, totally confusing, strange, pathetic, completely odd, weird, scary, crazy, slow, garbage, not usable, crapped up, crap, absolute mess, craziness, terrible.
Perhaps the best indicator of just how bad a deal forced arbitration is for consumers is the sneaky way big businesses force it on us.
Take Microsoft’s latest email announcing the changes. “Our users’ needs are at the center of everything we do,” says the happy little email. “That’s why we are updating the Microsoft Services Agreement.” But there’s no mention of forced arbitration in the email itself. And there’s no mention of it in the FAQ that supposedly offers the “highlights.”
No, you have to click on the link to the fine print and scroll down to Section 10 before you find out what Microsoft is taking away. If forced arbitration is so great, why does it have to be forced? Why not offer it on a voluntary basis? And why aren’t companies bragging about it instead of tucking it away in those long, long “agreements” that few of us have the time to read?
There is a solution. The Arbitration Fairness Act would put an end to these outrages. If you don’t want your rights “clipped” by the company that gave us Clippy – or by all the other corporations on the forced arbitration bandwagon – tell your Members of Congress to pass the Arbitration Fairness Act.
Join us to preview the new film, Soft Vengeance: Albie Sachs and the New South Africa
By Julius Goldberg-Lewis, AFJ Outreach Intern
“All revolutions are impossible until they happen. Then they become inevitable.”
On Friday, June 20th, Alliance for Justice will host a reception for Abby Ginzberg. During the reception Abby will present clips of her new film, Soft Vengeance: Albie Sachs and the New South Africa. The film chronicles the extraordinary story of Albie Sachs’ journey through imprisonment, assassination attempts, his place on the South African Constitutional Court, and his authorship of a new South African Constitution. RSVP here.
The story of Albie Sachsis one of struggle and triumph against Apartheid South Africa, where violence, oppression and injustice were a daily reality. A lawyer by trade, Sachs defendedhis clients against the racial laws that existed at the time. He continuously fought against apartheid and because of this, was tortured, imprisoned in solitary confinement, and eventually exiled. During his exile in Mozambique, South African security forces planted a bomb in his car. He survived, but lost an eye and an arm.
There were those who promised vengeance against the perpetrators of the attack, but Sachs had a different end in mind. After the release of Nelson Mandela, Sachs was able to return to South Africa and exact his ‘soft vengeance.’ The vengeance that Albie Sachs sought was not harm to those who tried to kill him, but a new constitution enshrining the egalitarian values, which apartheid sought to destroy. Sachs was nominated by Mandela to be one of the first 11 justices on the South African Constitutional court. Serving on that Court for 15 years, Sachs had the opportunity to continue to shape the constitution and direction of South Africa.
In telling the story of Albie Sachs, award-winning filmmaker Abby Ginzberg presents not only the story of Sachs’ fight for justice and equality, but also a personal narrative of how Sachs viewed his work as a form of art. Ginzberg highlights Sachs’ lifelong love of art and music, which drove him to be the Chief Curator for the Constitutional Court and dramatically influenced what he hoped to see in the new South Africa. For Sachs, human dignity, equality, art and music all come from the same wellspring, and Ginzberg’s film presents a unique picture of how that philosophy was able to shape the future of South Africa.
Ginzberg will be screening Soft Vengance at AFI Docs in Silver Spring, MD on June 10. Afterwards she will screen excerpts at Alliance for Justice headquarters in Washington, D.C., during a reception cosponsored by The Institute for Policy Studies and the Leadership Conference on Civil and Human Rights. Refreshments will be served during the reception and guests will have a special opportunity to chat with the filmmaker. The reception is free and open to the public, but guests are asked to rsvp.
By Kyle C. Barry
AFJ Legislative Counsel
Last week, the House passed the first surveillance reform legislation since Edward Snowden’s disclosures about several NSA surveillance programs, including the bulk collection of Americans’ phone call data. Unfortunately, the legislation does not sufficiently address the FISA Court—the secret court that issues orders authorizing government surveillance—and omits key procedural safeguards designed to ensure that the court considers privacy interests before granting government requests to conduct surveillance.
The House passed a compromise version of the USA Freedom Act that is substantially diluted from what Rep. Jim Sensenbrenner, R-Wis., and Senator Patrick Leahy, D-Vt., originally introduced. Many privacy advocates, along with major media outlets like The New York Times, have criticized the bill’s failure to go far enough in its substantive reforms of what sort of information the NSA is allowed to obtain, particularly with respect to the bulk collection of telephone records . But another problem has drawn less attention: As passed, the bill leaves intact the ex parte nature of the FISA Court and, with it, the government’s tremendous advantage in obtaining surveillance orders.
As AFJ argued in its report, Justice in the Surveillance State, establishing an adversarial process in the FISA Court is an essential part of any surveillance reform. Currently, the FISA Court only hears from the government, making it an aberration in a federal judiciary that generally relies on the presentation of competing views to adjudicate questions of law. It is true that certain aspects of criminal investigations, like search warrants and wiretaps, are approved through ex parte proceedings, but the scope of FISA Court decisionmaking goes much further. While search warrants turn on narrow questions of fact—i.e., has the investigating officer demonstrated probable cause—the FISA Court’s decisions include sometimes controversial interpretations of statutory and constitutional law, which are the very sort of questions for which the adversarial process is most critical. Read more
David L. Barkey
National Religious Freedom Counsel
In Town of Greece v. Galloway, the U.S. Supreme Court addressed the issue of legislative prayer for the first time since its 1983 Marsh v. Chambers decision. Claiming reliance on this decision, Justice Kennedy’s 5-4 plurality opinion (although the judgment garnered five votes, no other Justice signed onto the opinion in full) held that Marsh, in which the Court upheld a legislative prayer policy, is applicable to invocations before a town board. At issue in the Greece case was the Town’s informal invocation policy, which resulted in virtually all prayers at town board (“Board”) meetings being delivered by Christian clergy. And 85% of these prayers were overtly Christian. The plurality found no Establishment Clause violation, reversing the Second Circuit’s unanimous decision.
Although Justice Kennedy claims that the Court’s decision falls squarely within Marsh, it is in fact a vast expansion of the 1983 ruling. It sanctions sectarian legislative prayers of one faith to the exclusion of others except in the most egregious circumstances. And the ruling applies to legislative prayers whether they are given before Congress, a state legislature, or a town board. Justice Kagan’s spirited dissent reflects these realities, as well as a troubling disconnect between Justice Kennedy’s rationale and its real-life, detrimental implications for religious minorities seeking redress before local government.
Regrettably, the plurality opinion opens the door wide to overtly sectarian prayers before public meetings of government bodies. As detailed below, its new content limitations on legislative prayer are far more undefined and unworkable than Justice Kagan’s two-pronged approach to inclusive prayers. Undoubtedly, the majority’s tepid limitations on legislative prayer do not adequately protect those who are in religious minorities from feeling isolated, vulnerable, or like second-class citizens in their own communities. Furthermore, while the opinion is facially limited to legislative prayer, there are deep concerns that language from the decision taken out of context will be used by lower courts to further degrade constitutionally-mandated separation of church and state.
Marsh v. Chambers and Footnote 14
In the Marsh decision, the Court relied on the “… deeply embedded … history and tradition of this country” … “… opening of sessions of legislative and other deliberative public bodies with prayer” to carve out a legislative prayer exception to the Establishment Clause, and it applied this exception to uphold invocations before the Nebraska State legislature.
Although the Marsh majority referred to “other deliberative bodies,” the decision exclusively focused on the history and permissibility of legislative prayer before Congress and state legislatures. The Court based its legislative prayer exception on the historic fact that in 1789 “three days after Congress authorized the appointment of paid chaplains, final agreement was reached on the language of the Bill of Rights.”
The content of legislative prayers, however, was not without limitation. Rather, the prayers at issue were permissible because, as detailed in Footnote 14, the legislature’s chaplain “removed all references to Christ after a … complaint from a Jewish legislator” and the “prayer opportunity [was not] exploited to proselytize or advance any one, or to disparage any other, faith or belief.” For decades, many legal scholars understood Marsh to mean that legislative prayers are permissible provided that they are non-sectarian or inclusive in nature.
Over the last 30 years, U.S. District and Circuit Courts have been all over the map as far as the meaning of Marsh. And a number of decisions have applied the decision to uphold prayers in the context of municipal boards and commissions. Prior to the Greece decision, however, the Supreme Court never addressed this issue.
The Plurality Decision: Expanding and Perverting Precedent
Typically, in the town of Greece, New York, only around ten citizens attended Board meetings where the Christian invocations occurred. The overwhelmingly Christian nature of the prayers resulted from an informal policy by which a town employee would call local congregations until an available clergy member was found to serve as “chaplain of the month.” No instruction or guidance was given to clergy on the content of their prayers. Despite the Board’s obvious alignment with Christianity, the Supreme Court plurality validated its invocation policy under Marsh and also found that it did not result in unconstitutional religious coercion.
As an initial matter, Justice Kennedy, with virtually no historical corroboration, summarily found that the Marsh exception applied to the Board. Indeed, the parties provided no information about the history of prayer before local legislative bodies and Justice Kennedy cited to only one reference dating back to 1909. To reach this conclusion, Justice Kennedy engaged in circular reasoning by relying on Marsh’s finding of a 200-year “unambiguous and unbroken history” of Congress and subsequently state legislatures opening sessions with prayer.
Turning to the overtly Christian content of the Board’s prayers, Justice Kennedy dismissed the significance of Marsh’s Footnote 14 as merely the Court “observ[ing] the practical demands” placed on the legislature’s chaplain choosing “to appeal to more members, or at least to give less offense to those who object.” Eliminating the import of Footnote 14, Justice Kennedy announced that Marsh never required legislative prayer to be non-sectarian. He reasoned that members of the First Congress were “accustomed to invocations containing explicitly religious themes,” and the Christian nature of those prayers “must not be dismissed as a relic of a time when our Nation was less pluralistic than it is today.” Rather, today’s religious diversity should be acknowledged “by welcoming ministers from many creeds.” Justice Kennedy’s endorsement of religious diversity is one of the few points of agreement between the plurality and Justice Kagan’s dissent. It, however, is illusory as religious diversity is nowhere to be found in the new standard announced by Justice Kennedy.
The plurality further rationalized that prayers could be sectarian based on free speech principles. According to Justice Kennedy, no prayer can be “inclusive beyond dispute.” Indeed, any attempt to make a legislative prayer inclusive would wrongly apply the First Amendment as a “majority rule” that defines “permissible categories of religious speech.” Once the government “invites prayer into the public sphere, government must permit a prayer giver to address his or her own God … as conscience dictates.”
Justice Kennedy’s free speech purism, however, was short-lived. The very next paragraph of the decision paradoxically set forth new but exceedingly narrow content limitations: a prayer may “fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort” where “invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion.”
Based on these limitations, the plurality issued a new, far broader standard on permissible legislative prayer. Provided that a legislative body “maintains a policy of nondiscrimination” as to prayer-givers, “the content of a prayer will not likely establish a constitutional violation” unless there is a “pattern of prayers that over time denigrate, proselytize, or betray impermissible government purpose.” Applying this standard, Justice Kennedy found the Board’s prayer policy permissible.
The plurality then rejected claims that the Board policy resulted in religious coercion of meeting attendees. It purported to base its analysis on a fact sensitive inquiry that looked at the setting of legislative prayers and the audience for them. Despite the fact that the chaplain of the month customarily gave the invocation with his or her back to Board members and called upon the entire room to pray, Justice Kennedy astonishingly determined that the purpose of the prayers “is largely to accommodate the spiritual needs of lawmakers and connect them to a tradition dating to the time of the Framers” and therefore the “principal audience” for the Board invocations is the “lawmakers themselves” and not the public.
Despite the Board meetings’ customary low public attendance, the plurality also determined that the Board policy did not dissuade members of the public from leaving the room during the prayer or arriving late to avoid it. Indeed, it found that just like state legislators, members of the public were free to enter or leave the Board meeting at their pleasure. So “nonbelievers choos[ing] to exit the room during a prayer … would not stand out as disrespectful or even noteworthy.”
Justice Kagan’s Dissent: Creating an “Untenable Choice”
Justice Kagan’s powerful dissent exposed the plurality’s opinion as being well beyond Marsh’s holding, as well as the fallacy of its rendition of the facts. As a starting point, Justice Kagan took no issue with the holding of Marsh. However, she explained that in Marsh, the prayer “was addressed to legislators alone, in a proceeding in which citizens had no role.” However, the Board has a “hybrid” role that includes legislative and constituent adjudicative functions. And critically, Marsh’s holding “hinged on the view ‘that the prayer opportunity ha[d] [not] been exploited to proselytize or advance any one … faith or belief;’ had it been otherwise, the Court would have reached a different decision.” Focusing on these significant differences, Kagan concluded that:
None of the history Marsh cited – and none the majority details today – supports calling on citizens to pray, in a manner consonant with only one single religion’s beliefs, at a participatory public proceeding, having both legislative and adjudicative components.
According to Kagan, the plurality’s expansion of Marsh creates an untenable choice for citizens that divides them along religious lines and thereby offends the First Amendment: pretend to pray in a faith not of your own, or decline to join the prayer or leave the room at the very moment when citizens need to petition their government.
To Kagan, a correct reading of Marsh requires that where “citizens of all faiths come to speak to each other and their elected officials in a legislative session” prayers should “include, rather than serve to divide.” And achieving inclusivity is a straightforward task: instruct chaplains to speak in non-sectarian terms common to diverse faiths, or invite clergy from many faiths, so that the government does not align within one faith and “the effect of even sectarian prayer is transformed.”
In refuting Justice Kennedy’s rejection of the religious coercion claims, Justice Kagan effectively argued that the plurality misapprehended the facts of the case and failed to follow its own fact-sensitive inquiry standard. She pointed out that in addition to the significant differences between the functions of state legislatures and local government, and the fact that virtually all the prayers before the Board were Christian in nature, the invocations were in fact directed to the public and not lawmakers.
Furthermore, the plurality’s misplaced reliance on the Board’s non-discrimination policy could not cure the constitutional violation. The policy was in name only because the Board virtually never offered the “chaplain of the month” role to non-Christian persons and never gave guidance to clergy to be more inclusive of other faiths. The Board’s resulting alignment with one faith was significant and constitutionally offensive because the prayers “express beliefs that are fundamental to some, foreign to others – and because that is so they carry ever-present potential to exclude and divide.”
Justice Kagan astutely concluded her dissent by stating that “[w]hen the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another. And that means that even in a partly legislative body, they should not confront government-sponsored worship that divides them along religious lines.”