Tracking the latest developments in the fight for a fair America
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.
Last Thursday, 6.4 million consumers could breathe a sigh of relief when the Supreme Court, led by Chief Justice John Roberts in a 6-3 ruling, affirmed that all parts of the Affordable Care Act remain the law of the land. With this latest attack on the health care law resolved, we have reached a turning point for health care reform.
King v. Burwell challenged whether tax credits (subsidies) that reduce the cost of health insurance premiums for lower-and moderate-income consumers could be available across the country or just in states that established their own health insurance marketplaces (exchanges). The Court has now ruled in favor of the government’s argument that both the text and intent of the law was to allow tax credits in every state. With this decision, we have hopefully reached an end to the legal wrangling designed to dismantle the law’s protections for consumers. Justice Roberts made clear that the ACA can now only be taken away by an act of Congress signed by the President, a scenario that appears unlikely.
The ACA has now survived more than 50 failed attempts by Congress to repeal all or part of the law and two high profile Supreme Court cases. The futility of these attempts to undo the law, as well as the increasing number of Americans benefitting from the law each day, should lead to a decline in the political attacks on the law. Policymakers should move on to continued implementation of the ACA and achieving further gains in improving our health care system.
There are a few key areas in particular that Families USA considers important next steps. They include:
- Closing the Medicaid coverage gap. 21 states have still not expanded the Medicaid program as the ACA envisions. We must work to ensure the 3.7 million people who would benefit from expansion are not left behind.
- Making health care even more affordable. While the ACA made great progress, there is still work to do to improve access to care for people with marketplace coverage. Work is necessary to ensure that out-of-pocket costs, like deductibles, are affordable and that enrollees aren’t forced to go out-of-network and face high bills due to inadequate provider networks. In addition, Congressional action is needed to eliminate the “family glitch” that prevents the families of some workers from accessing premium tax credits.
- Addressing health care disparities. Communities of color disproportionately face barriers to high-quality, affordable health care, and some immigrant groups are locked out of the system entirely. We must work to ensure all people have affordable access to high-quality care, translation services, and culturally competent providers and insurers.
- Transforming the health care system. We spend more money on health care than most other industrialized nations, yet do not always get better results. Aligning provider payments with the right incentives, better engaging consumers with their care, designing health insurance benefits that promote high-value care, and ensuring treatments are based on strong evidence will go a long way to improving care quality and reducing health care costs in the United States.
- Maximizing Enrollment in the Marketplaces. Many people are eligible for coverage and for financial assistance but do not know it. More work is needed to enroll the remaining uninsured, especially harder-to-reach populations.
For the millions of Americans whose health insurance hung in the balance, King v. Burwell represented a moment of fear. Celia Maluf is one such consumer. The sixty-year-old Miami woman works three part-time jobs but cannot afford health insurance without the subsidies. For months she worried that the Supreme Court would take away her health care. When the decision finally came down, she expressed a collective sigh of relief and declared: the “nightmare is over.” Indeed it is. Now we will move forward, away from attacks on health reform, and towards achieving high-quality, comprehensive, and affordable health care for all Americans.
Ben D’Avanzo is special projects manager and Claire McAndrew is private insurance program director for Families USA.
By Kyle Barry
AFJ Director of Justice Programs
Apparently the looming July 4th recess isn’t enough for Chuck Grassley to schedule a long-overdue judicial confirmation hearing. Instead, the Judiciary Committee Chairman appears to be guaranteeing at least three consecutive weeks without a confirmation hearing. Such needless delay, so clearly motivated by a partisan desire to obstruct the president’s judicial nominees, is never acceptable. But there is a more specific reason for concern: two pending nominees—Mary Barzee Flores for the Southern District of Florida, and Julien Neals for the District of New Jersey—have already waited four months for a hearing, and both are nominated to critical “judicial emergencies” in their home states.
Indeed, Florida and New Jersey are two of the states hit especially hard by the great confirmation slowdown of 2015. The Senate has confirmed only four judges this year; as a result, vacancies nationwide have increased from 43 to 59, and judicial emergencies—the official designation for courts that need more judges to handle their current caseload—have more than doubled, from 12 to 27. New Jersey alone has four new vacancies in 2015 (tied with New York for the most in any state) and all of them are judicial emergencies. There are three pending New Jersey nominees waiting for a hearing, including two (Neals and John Vasquez) nominated before April.
In Florida, Flores has been pending since February to fill a judicial emergency that is more than a year old. Florida also got its second judicial emergency this month when a Middle District seat opened up, and a future Northern District vacancy has been announced for December. With the new vacancies this year, Florida and New Jersey have become two of just six states with multiple judicial emergencies. And yet, Sen. Grassley refuses to take one simple step to address this growing problem: quickly process pending nominees through committee so they can be confirmed.
Flores’ nomination also reflects a troubling pattern of obstruction that has emerged under Republican leadership, one in which Republican senators publicly endorse a nominee from their home state, but then do virtually nothing to get them confirmed. We’ve seen this on the Senate floor where nominees recommended and ostensibly supported by powerful Republican senators like President pro tempore Orrin Hatch of Utah, and Majority Whip John Cornyn of Texas, were forced to wait months for what was ultimately a unanimous confirmation vote.
In the Judiciary Committee, this obstruction has taken a very specific form for nominees, like Flores, from states with one Republican and one Democratic senator. What’s happening with Flores now is precisely what happened—and continues to happen—with Third Circuit nominee L. Felipe Restrepo.
President Obama nominated Restrepo last November based on the joint recommendation of Republican Pat Toomey and Democrat Bob Casey of Pennsylvania. Casey then quickly returned his “blue slip” to the Judiciary Committee, signaling that he endorsed the nomination and that Chairman Grassley could move forward with a hearing. But Toomey did not follow suit. While he continued to express public support for Restrepo, he withheld his blue slip for over six months, enabling Grassley to delay Restrepo’s hearing under the pretext of completing a “thorough background investigation.” Toomey and Grassley finally buckled under intense public pressure, and Restrepo had a hearing on June 10. But nothing has happened since, and now Toomey looks unwilling to demand that Grassley and the other committee Republicans vote Restrepo onto the Senate floor.
Similarly, Flores was recommended by Republican Senator Marco Rubio and Democratic Senator Bill Nelson, and Nelson returned his blue slip soon after her nomination. Yet four months later, and despite mounting calls to fill the judicial emergencies in Florida, Rubio has done nothing to ensure that his fellow-Republicans actually move Flores toward confirmation.
With all these hearing delays, Grassley has fallen behind even his own announced pace for processing nominees. Grassley has held himself to “the Leahy standard in 2007,” when Senator Patrick Leahy was the committee chairman, and Democrats controlled the Senate under President George W. Bush. But at this point in 2007, Senator Leahy had convened five confirmation hearings for 17 judicial nominees, while only 13 nominees have had hearings this year. This is in addition to the enormous disparity on confirmations—four this year compared to 21 by the end of June in 2007.
The American people know better than to countenance this sort of form-over-substance support for judicial nominees we’ve seen from Republican leadership and home-state Republican senators. Americans need judges to decide cases and administer justice, not vague assurances that someday—“this year,” maybe—they’ll have enough judges in their district. This week, the people of New Jersey and Florida could have been a step closer to getting the judges they so desperately need, but, instead, their wait for justice is only further delayed.