Why judges matter: The best-known example turns 40

Alliance for Justice President Nan Aron issued the following statement marking the upcoming 40^th Anniversary of the Supreme Court decision in Roe v. Wade:

Photo: Planned Parenthood Action Fund/womenarewatching.org

Tuesday’s anniversary of the Supreme Court decision in Roe v. Wade drives home the importance of the Supreme Court in our daily lives. A change of one vote on the Court in the wrong direction could set back set back advances made by women.  A change of one vote the right way can solidify the gains of the past four decades.

But after the anniversary, the urgency tends to fade.  We forget how important the Supreme Court is to our lives in so many other ways.  This year, for example, Supreme Court decisions may determine who can get married, who can go to college and even who can vote.

So we need to focus every day on fighting for a progressive judiciary, not only Supreme Court justices, but judges on our lower courts as well.

Sometimes it is, literally, a matter of life and death.

Read our three-part series: Will the Supreme Court overturn Roe v. Wade?

● Part One

● Part Two

● Part Three

And check out our Bolder Advocacy blog for a listing of how nonprofits are commemorating the anniversary.

The New York Times takes on "a severe breakdown in the process for appointing federal judges"

Making extensive use of AFJ's resources on judicial selection, The New York Times has an excellent editorial on that topic today:

Judges Needed for Federal Courts

There has been a severe breakdown in the process for appointing federal judges. At the start of the Reagan years, it took, on average, a month for candidates for appellate and trial courts to go from nomination to confirmation. In the first Obama term, it has taken, on average, more than seven months.

Seventy-seven judgeships, 9 percent of the federal bench (not counting the Supreme Court), are vacant; 19 more seats are expected to open up soon. The lack of judges is more acute if one considers the growing caseload. The Judicial Conference, the courts’ policy-making body, has recommended expanding the bench by 88 additional judgeships.

President Obama must make fully staffing the federal courts an important part of his second-term agenda — starting with the immediate Senate confirmation of the 18 nominees approved by the Senate Judiciary Committee.

A significant reason for the slowdown has been the partisan opposition of Republicans to appeals court and even to trial court nominations, even though almost none of the nominees have backgrounds that raise ideological issues. The Republicans have time and again used the filibuster, the threat of filibuster, holds on nominations and other tactics to block confirmations.

The Democratic majority, led by Senator Harry Reid, can speed up the process by limiting use of the filibuster. He can do so by pushing for a simple majority vote at the start of the January session to alter Senate rules so that every judicial and executive-branch nominee is assured an up-or-down vote within 90 days. Without that change, many judicial nominations will founder.

The full editorial is available here.

Grassley Intentionally Misstates Judicial Confirmation Record to Whitewash Obstructionism

Senator Grassley

Senator Charles Grassley (R-Iowa) recently responded to a letter sent to him from 16 national and Iowa groups criticizing him for unnecessary delays in confirming judicial nominees. In his response Grassley claimed that:

"[F]or the four years of this administration, we approved 160 nominations, and during the same period of time in the last Bush administration, there were 120 nominations."

This statement is both wrong and intentionally misleading.

First off, Grassley is comparing the first four years of the Obama Administration to the second four years of the Bush Administration. This is not “the same period of time.” Second, this is particularly misleading because Bush had a comparatively huge number of confirmations in his first term—202 in fact (see chart below). During Bush’s second term, there simply were not that many vacancies to fill.

With his statistical slight-of-hand, Grassley is trying both to minimize his—and his fellow Republicans’— obstruction of President Obama’s nominees during the last four years and make himself look reasonable!

You might expect more transparency and honesty from the ranking member of the venerable Senate Judiciary Committee. Instead, it seems, we’re getting one more attempt to mislead the public and obstruct nominees going forward. Iowans—and Americans—deserve better.

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For Senator Grassley’s information, here are the facts:

Why judges matter: Republican-appointed federal appeals court tries to scare away Ohio Voters

On Halloween, a federal appeals court issued a frightening decision that may cause widespread voter disenfranchisement in Ohio. 

At issue: what happens if someone votes in the wrong place because of an error by a poll worker? A district court issued an injunction requiring that those votes be counted.  The appeals court, however, stayed the injunction, meaning that thousands of otherwise-valid votes will not be counted.

The decision came despite the fact that the district court’s factual findings showed that poll-worker error results in thousands of wrong-location ballots in Ohio, either because poll workers affirmatively misdirected voters to the wrong polling location, or because poll workers provided voters with  ballots for the wrong precinct instead of directing voters to the correct polling location. 

Moreover, the appeals court’s decision ignored Ohio election law, which requires poll workers to direct voters to the correct precinct.  Specifically, the Ohio code states that:

if, upon review of the precinct voting location guide using the residential street address provided by the individual, an election official at the polling place at which the individual desires to vote determines that the individual is not eligible to vote in that jurisdiction, the election official shall direct the individual to the polling place for the jurisdiction in which the individual appears to be eligible to vote... [emphasis added]

Given the district court’s factual findings and the actual text of Ohio’s voter laws, you might wonder why there was even a challenge to this injunction in the first place and how any court could come to such a conclusion. 

Well, the motion to stay the injunction was brought by Ohio’s controversial Republican Secretary of State, Jon Husted, and granted by a three-judge panel of conservative judges, two of whom were appointed by President George W. Bush and one of whom was appointed by President George H.W. Bush. 

In short, the decision shows why judges matter, and how past presidents can leave a continuing legacy of voter disenfranchisement.    

Why Judges matter: Is DOMA really doomed?

Responding to the decision by a second federal appellate court that the so-called Defense of Marriage Act is unconstitutional, a decision discussed in detail in the previous post to this Blog, Washington Post editorial writer Jonathan Capehart wrote a column headlined “DOMA is doomed.”

DOMA defines marriage as only between a man and a woman.  Its practical effect is to deny married gay couples the same federal benefits as other married couples, such as federal employee health benefits for spouses and Social Security survivor benefits.  As Capehart wrote: “It’s flat-out discrimination.”

But does that necessarily mean it’s doomed?  We certainly hope so.  But, as the distinguished legal scholar Stephen Colbert put it in discussing another discrimination case: “It’s the time of year again when skeletal figures shrouded in black fill your mind with fear – because the Supreme Court is in session.”

Seriously – the place where past generations turned to right wrongs and end discrimination now is a place that all advocates for equality must view with trepidation.

The court is expected to decide next month whether to hear appeals from the decisions on DOMA.  It also may hear an appeal from a 9^th Circuit Court of Appeals decision striking down Proposition 8, the voter-approved referendum that banned gay marriage in California.

On the one hand, Justice Antonin Scalia’s recent contemptuous dismissal of gay rights should add to the fear factor.  On the other hand, Justice Anthony Kennedy, often seen as the court’s swing vote, has shown some sympathy toward gay rights.

The President of the Human Rights Campaign, Chad Griffin, told Capehart: “We are at a monumental tipping point as the Supreme Court stands poised to review a law that has resulted in treating gays and lesbians as second-class citizens.”

The question is: Which way will the Supreme Court tip?