Tracking the latest developments in the fight for a fair America
Earth Day “ha[s] been perverted to make it, in too many cases, a threat to individual liberty and property rights.”
–Damien Schiff, Nominated in 2017 to the Court of Federal Claims by Donald Trump
Forty-eight years ago this Sunday, Senator Gaylord Nelson (D-WI) founded Earth Day. Every year since, as many as 1 billion people in 192 countries around the world take the day to plant trees, clean up litter, and help beautify neighborhood parks. In fact, it is reportedly the largest civic-focused day of action in the world. On Earth Day last year, Americans came together to pick up thousands of pounds of garbage in Minneapolis’s lakes and parks, clean up the Charles River in Boston, enjoy a “Greening up the Mountains” festival in North Carolina, and plant trees at schools all across the country. As Senator Chuck Grassley noted, “Earth Day has sought to educate and motivate people to leave behind a better, cleaner place for our children and our children’s children.”
One would think there would be little objection to a day when a billion people, from Girl Scouts to workers, devote a little time to make our air healthier and water cleaner. Yet, for Pacific Legal Foundation attorney Damien Schiff, such volunteer activities apparently have a darker side: To him, Earth Day is “a threat to individual liberty and property rights.”
Normally the extreme musings of one attorney can be easily dismissed. But Schiff isn’t just another attorney. President Trump nominated Schiff – someone with such contempt for our environment that he compared Environmental Protection Agency (EPA) policies to slavery (the EPA “treat[s] American citizens as if they were not American citizens, as if they were just slaves”) – to be a federal judge. And every Republican on the Senate Judiciary Committee voted to support him. Read more
Last week, the Supreme Court heard oral argument in NIFLA v. Becerra. In this case, anti-abortion counseling centers are challenging a California law, the Reproductive FACT Act, which was passed to counteract the deceptive practices of these centers. The FACT Act is pretty straightforward: it helps provide important information to pregnant women and makes sure they receive accurate information about their full range of options related to pregnancy and family planning.
This case is not about free speech.
Who would want to overturn a law that protects public health and ensures access to reproductive health care? Anti-abortion counseling centers. These centers oppose the requirements of the FACT Act because they use deceptive practices to lure women into their centers and don’t want women to be aware of all of their reproductive health options. Read more
That same belief in the cleansing power of transparency led to the creation of Sunshine Week for the federal government, which this year falls on March 11-17. Sunshine Week is an opportunity to focus on accountability in government, and from the theater at the National Archives to the halls of the Department of Justice, the government is supposed to use this week to acknowledge our right to know how federal offices and agencies are spending their money and fulfilling their missions.
Notably, even the Senate Judiciary Committee is getting in on the action, with a hearing on “The Freedom of Information Act: Examining the Administration’s Progress on Reforms and Looking Ahead.”
Unfortunately, however, the GOP-led committee’s actions in the remaining 51 weeks of the year have been far less in keeping with ideals of transparency – as have so many actions of the Trump Administration and its allies on Capitol Hill. Among many other important responsibilities, the committee is charged with confirming judges to lifetime positions on the federal bench. But under President Trump, Senate Republican leaders have taken a series of steps to destroy checks and balances and rubber-stamp judicial nominees. They have disregarded the blue slip tradition, rushed stacked hearings and votes with multiple controversial nominees, sidestepped state nominating commissions, and avoided meaningful consultation with home-state senators.
Meanwhile, the sunshine report card for Trump judicial nominees is not very good.
Last year, two nominees for lifetime judicial positions stood out from the pack in terms of their unwillingness or inability to be transparent and forthcoming with the public and their representatives. Jeff Mateer, a nominee for the U.S. District Court in the Eastern District of Texas, failed to disclose to a Texas nominating commission speeches he gave calling transgender children part of “Satan’s plan.” Republicans’ own Senate Majority Whip, Senator John Cornyn of Texas, called Mateer’s omitted materials “a serious breach of protocol.” Brett Talley, a nominee for the U.S. District Court for the Middle District of Alabama, failed to disclose to the Senate Judiciary Committee online comments he made appearing to defend “the first KKK” and failed to disclose a potential conflict of interest with his wife’s White House employment.
Chairman Chuck Grassley and Senator John Kennedy of the Judiciary Committee, to their credit, pushed the Trump Administration to pull back these two less-than-forthcoming nominees.
You would think that the White House would have learned a lesson from this. Yet, sadly, in 2018, we have more of the same. When the Trump Administration nominated Ryan Bounds for a seat on the Ninth Circuit in Oregon, he failed to disclose to the Oregon judicial selection committee a series of controversial articles he wrote in the Stanford Review. These included comments like “Race-focused groups foster race-think, and the only way to rid our multicultural community of race-think is to rid it of these invidious factions. We should be cheered, however, to know that our task is not impossible. The existence of ethnic organizations is no inevitable prerequisite to maintaining a diverse community— white students, after all, seem to be doing all right without an Aryan Student Union.” Bounds failed to disclose these writings even though he was asked by the committee if there was anything in his background that could become an issue in the confirmation process. When the nature of these omitted writings came to light in media reports, Bounds apologized and resigned as chair of the Multnomah Bar Association’s Equity, Diversity, and Inclusion Committee.
Meanwhile in Wisconsin, Gordon Giampietro, nominee for the U.S. District Court for the Eastern District of Wisconsin, failed to disclose to the Wisconsin Federal Nominating Commission radio interviews in which he called LGBTQ relationships “troubled” and the birth control pill an “assault on nature,” even though the commission had asked him to disclose any information that could be personally or professionally embarrassing. Also, when he submitted information to the Senate Judiciary Committee, Giampietro failed to disclose online comments he made calling diversity “code for relaxed standards (moral and intellectual)” and criticizing the Civil Rights Act of 1964. These comments certainly seem like the kind of remarks the people’s representatives would want to know about when evaluating whether Giampietro would be a fair-minded judge for all who come before him in a courtroom.
And in Louisiana, Wendy Vitter, nominee for the U.S. District Court for the Eastern District of Louisiana, failed to disclose to the Senate Judiciary Committee several speeches, including one easily found through a quick YouTube search. In that speech, Vitter promoted materials that claim that “the pill kills” and is associated with women dying violent deaths, as well as that abortions cause breast cancer. People may disagree about the underlying issues at stake, but the Senate and the public are certainly entitled to know if a nominee has made comments that raise questions about her judgment and temperament.
This principle is one that should be very familiar to members of the Senate Judiciary Committee.
In 2010, all Republicans then serving on the Judiciary Committee joined former Ranking Member Jeff Sessions in blocking Goodwin Liu, another Ninth Circuit nominee, who supplemented his original Senate Judiciary Questionnaire with additional materials. The Republicans argued that “Liu’s unwillingness to take seriously his obligation to complete these basic forms is potentially disqualifying and has placed his nomination in jeopardy.” The committee Republicans wrote that “[a]t best, this nominee’s extraordinary disregard for the Committee’s constitutional role demonstrates incompetence; at worst, it creates the impression that he knowingly attempted to hide his most controversial work from the Committee.”
Yet not only have Republicans apparently abandoned their extreme hard-line stance on disclosure, they seem to have abandoned almost any interest in enforcing it. Last week, Judiciary Committee Ranking Member Dianne Feinstein outlined her concern that failures to disclose relevant information and materials to the committee are becoming a pattern under this administration. As she noted, “These are lifetime appointments. The committee can’t do its job and review nominees’ records if the administration hides information, and both parties should be furious at this routine practice under President Trump.”
Feinstein is right. Not just senators of both parties – but all of us – should be furious when the Trump Administration and its nominees flout the public’s right to know critical information about nominees tapped for such influential positions. Federal judges play a critical role in safeguarding our democracy and rule of law, and ensuring the proper application of important constitutional rights and essential legal protections, including protecting the right to vote, equal rights for minorities, women and LGBTQ Americans, and important protections for workers, consumers and the environment. Further, these are lifetime appointments – these people will be deciding cases and interpreting our rights and laws for the next generation.
At the beginning of this year’s Sunshine Week, former Judiciary Committee Ranking Member Patrick Leahy gave a powerful keynote address at the National Archives, declaring that “a government that hides from the people can never be a government of, by, and for the people.” Moreover, two leading Republicans on the committee, Chairman Grassley and Senator Cornyn, have done notable work in support of transparency with their efforts on the Freedom of Information Act and whistleblowers; they should apply the same principle to their work on nominations.
So in that spirit, we say to the White House, its nominees, and the Senate’s GOP leadership: Stop hiding the ball when it comes to judicial nominees. Senators should not have to play detective when reviewing the records of nominees to lifetime positions. Now is the time for senators of both parties to reassert the Senate’s role, as an independent branch of government, to provide “advice and consent” and insist on full disclosure. Now’s the time to let the sunshine in – not just this week, but every week.
It is no secret that Donald Trump has contempt for Americans with disabilities.
Trump famously mocked a reporter with a disability. His Education Secretary, Betsy DeVos, made clear at her confirmation hearing that she did not understand the Individuals with Disabilities Act (IDEA). As a senator, Trump’s Attorney General, Jeff Sessions, attacked the IDEA, blaming the law for the “decline in civility and discipline in classrooms all over America.” When he became Attorney General Sessions promptly dropped the Justice Department’s appeal of a key disability rights lawsuit. He also filed a brief that would severely limit the protections of the Americans with Disabilities Act (ADA) by narrowing the meaning of “public accommodation;” and he rescinded 10 guidance regulations on disability rights, one of which had “codified the labor rights of disabled people as they move from sheltered workshops paying sub-minimum wage[s] into the integrated economy.” Read more
“This is a break from the bipartisan tradition that we do not hold lawyers accountable for the clients they represent and any animus one may harbor against them.”
Sen. Thom Tillis, supporting President Trump’s nomination of Thomas Farr to the Eastern District of North Carolina
“Some of my colleagues have argued that we should not consider this aspect of [Caitlin] Halligan’s record, because at the time she was working as the Solicitor General of New York. But, no one forced Ms. Halligan to approve and sign this brief.”
Sen. Chuck Grassley, opposing President Obama’s nomination of Caitlin Halligan to the D.C. Circuit.
“I remain concerned with Mr. Adegbile’s ability to set aside more than a decade of advocacy on behalf of this and other liberal causes to serve as a neutral enforcer of our Nation’s civil rights laws.”
Sen. Jeff Flake opposing President Obama’s nomination of Debo Adegbile to be Assistant Attorney General for Civil Rights.
What a difference a year makes. After twelve months of Senate Judiciary Chair Chuck Grassley’s rubber-stamping of Trump judicial nominees, it is clear that Republicans believe there is one set of rules for Obama nominees and another set for Trump nominees. Under Obama, Republicans vigorously fought for the rights of home-state senators, extensively used the blue slip to block nominees, refused to consider nominees that had admitted to ever using marijuana, required the Office of Legal Counsel to disclose opinions written by nominees before their confirmation, and insisted on multiple hearings for certain nominees. Under Trump, Grassley quickly discarded all of these traditions and requirements. Read more