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There Is A Judicial Confirmation Crisis, And The GOP Is Causing It

In Tuesday night’s State of the Union Address, President Obama called on the Senate to “put an end” to the unprecedented obstruction of his judicial and executive branch nominees, insisting that “neither party has been blameless in these tactics.” He was right to call out the problem, but he was wrong that it’s a bipartisan issue. It’s fine for the president to be magnanimous, but the fact is only one party has systematically held hostage even the most basic tasks of governing in the hopes of making minor political gains. And that party is not the president’s.

The nominations crisis that we face today exists largely because it can easily fly under the radar—and the GOP politicians behind it know that. This Republican Congress’s intransigence has caused harm beyond the very public battles over the debt ceiling and tax cuts for millionaires. Under the unglamorous cover of judicial and executive branch confirmations, the Senate GOP has launched a campaign of strategic obstruction to prevent parts of the federal government from functioning at all.

This became clear in the relatively public battle to confirm Richard Cordray to head the Consumer Financial Protection Bureau. Senate Republicans admitted they had no problem with Cordray himself. Instead, all but two stated in a letter to the president that they would refuse to confirm him unless the new, congressionally created agency he was nominated to head was first substantially weakened. It was an unprincipled attempt to legislate via the Senate’s power of advice and consent, which the president rightly sidestepped by installing Cordray with a recess appointment.

But the Cordray nomination was just the tip of the iceberg. With far less public attention, the GOP has been decimating the nation’s courts, causing the judicial branch to face a historic vacancy crisis and Americans seeking their day in court to face unconscionable delays. This crisis is largely due to the chronic inaction of the Senate, which has been crippled by the Republican minority’s abuse of the chamber’s rules to block even consensus nominees from getting a yes-or-no vote.

More than 10 percent of all district and circuit court seats in the country are now or will soon be vacant, in what is the longest period of historically high vacancy rates in 35 years. Thirty-two of these open seats have been labeled “judicial emergencies” by the Administrative Office of the U.S. Courts. The term isn’t bureaucratic hyperbole. As the number of criminal cases surges—a 70 percent increase in the past decade—civil cases are necessarily put on the back burner, resulting in often years-long delays for Americans seeking justice in consumer fraud, copyright infringement, discrimination, civil rights, and other civil claims. Judges in their 80s and 90s have continued working to keep the system running. One told the Washington Post last year,  “I had a heart attack six years ago, and my cardiologist told me recently, ‘You need to reduce your stress.’ I told him only the U.S. Senate can reduce my stress.”

Outside of the Senate, there’s near-unanimous agreement that the current pattern of obstruction needs to end. Legal groups and prominent judges across the political spectrum—including Chief Justice John Roberts—have urged that  partisan politics be set aside for the good of the justice system. But instead, Senate Republicans have dug in their heels. Once being confirmed by the Judiciary Committee—usually without opposition—President Obama’s circuit court nominees have waited a staggering average of 136 days for a vote from the full Senate, compared to just 30 days for President Bush’s nominees at the same point in his presidency. For district court nominees, historically confirmed quickly and easily except under the most extraordinary of circumstances, the average wait after committee approval has been 90 days under Obama, in contrast to 22 days under Bush. Even among the nominees who were fortunate enough to be confirmed last year, more than a quarter were holdovers from 2010, denied votes from the full Senate until the year after they were approved by the Judiciary Committee.

Meanwhile the dry numbers of the vacancy crisis obscure its devastating impacts. Cases that require urgent resolution face grueling delays and occasionally put on indefinite hold. In Utah, Dave Calder’s two-year-old daughter died in 2005, when a gas can exploded inside his trailer, leaving him with severe burns over a third of his body. After he sued the maker of the faulty can in 2007, he had to wait two and a half years for a jury verdict. In Merced, California, 2,000 citizens who filed suit over toxic chemical contamination stemming from a 2006 flood are still awaiting resolution, and only one civil trial has been held in the matter.

Republicans in this Congress have again and again put the politics of obstruction over the good of the American people. President Obama was right to call out the problem, but he should have put a name to it. Americans deserve a Senate that, at the very least, does the basic job it was hired to do. When it comes to confirming nominees, it is clear which party has been shirking its duties.

 

By: Marge Baker, U. S. News and World Report, January 27, 2012

January 27, 2012 Posted by | Congress, Senate | , , , , , , | Leave a comment

“A Can Of Worms”: Historian Newt And The Courts

On Fox News this morning, Steve Doocy, reflecting on Newt Gingrich’s remarks in last night’s debate, said the disgraced former House Speaker “was brilliant” when “talking about out-of-control judges and the courts.”

I saw the same comments. “Brilliant” wasn’t the adjective that came to mind.

Megyn Kelly noted in her question to Gingrich that he’s proposed congressional subpoenas for judges who issue rulings that Republicans don’t like, as well as judicial impeachments and the prospect of eliminating courts the right finds offensive. Kelly reminded Gingrich that two conservative former attorneys general have characterized his approach as “dangerous,” “outrageous,” and “totally irresponsible.” He responded:

“[T]he courts have become grotesquely dictatorial, far too powerful, and I think, frankly, arrogant in their misreading of the American people. […]

“I taught a short course in this at the University of Georgia Law School. I testified in front of sitting Supreme Court justices at Georgetown Law School. And I warned them: You keep attacking the core base of American exceptionalism, and you are going to find an uprising against you which will rebalance the judiciary.”

Gingrich added he’s “prepared to take on the judiciary” unless federal courts started issuing rulings that he agreed with. He went on to say he understands these issues “better than lawyers,” because he’s “a historian.”

Let’s note a few relevant angles here. First, it’s time to stop characterizing positions such as these as “conservative.” Gingrich doesn’t want to conserve anything; he’s eyeing a radical revolution of the separation of powers and the American branches of government, stripping the judiciary of its power as an independent branch.

Second, Gingrich is a lousy historian. Real scholars tend to consider Gingrich’s crusade against the courts as a crackpot agenda.

And third, it was odd to see Ron Paul, of all people stand up last night as a voice of reason.

“Well, the Congress can get rid of these courts. If a judge misbehaves and is unethical and gets into trouble, the proper procedure is impeachment. But to subpoena judges before the Congress, I’d really question that. And if you get too careless about abolishing courts, that could open up a can of worms. Because there could be retaliation. So it should be a more serious — yes we get very frustrated with this, but the whole thing is, if you just say, ‘Well we’re going to — OK there are 10 courts, let’s get rid of three this year because they ruled a way we didn’t like.’

“That to me is, I think opening up a can of worms for us and it would lead to trouble. But I really, really question this idea that the Congress could subpoena judges and bring them before us. That’s a real affront to the separation of the powers.”

Yes, Ron Paul was the sensible one on the stage last night when it comes the courts.

Great.

By: Steve Benen, Contributing Writer, Washington Monthly Political Animal, December 16, 2011

December 16, 2011 Posted by | GOP Presidential Candidates | , , , , , , , | 1 Comment

A Look Back: Newt Gingrich’s Most Outlandish Policy Positions

Newt Gingrich is up 31 points in Florida, according to one poll, and he is openly predicting that he will be the Republican nominee for president.

We’ll see.

In the meantime, it’s worth revisiting some of the lesser-known areas in Gingrich’s record. In his three-plus decades in public life, the former House speaker has racked up an impressive record not only of  flip-flops, but also of policy positions that are profoundly unorthodox, some would say outlandish.

This is by no means a comprehensive list – if I’m missing any Gingrichian gems, email me or leave a comment.

1981: Gingrich co-sponsors a measure in the House “to provide for the therapeutic use of marijuana in situations involving life-threatening or sense-threatening illnesses and to provide adequate supplies of marijuana for such use.”

A year later, he writes a letter to the Journal of the American Medical Association reiterating his view: “We believe licensed physicians are competent to employ marijuana, and patients have a right to obtain marijuana legally, under medical supervision, from a regulated source.” He later disavows the stance.

1994: As part of his push for welfare reform, Gingrich proposes that states end aid to poor single mothers and their children be sent to orphanages that would be built with the saved money. Responding to criticism of the plan by then-first lady Hillary Clinton, Gingrich cites a 1938 Hollywood film.

“I’d ask her to go to Blockbuster and rent the Mickey Rooney movie about ‘Boys Town,’” he says.

1995: Gingrich proposes the death penalty for those involved in the drug trade, drawing a parallel to the draconian policies of Singapore and Malaysia.

“We want to stop all drug traffic. If you bring in a commercial quantity of illegal drugs, we will execute you,” he says during a book tour (via the San Diego Union-Tribune on Nexis).

But Gingrich’s Drug Importer Death Penalty Act of 1996 ultimately goes nowhere. Asked by Yahoo News in November if he stands by this position, Gingrich responded, “I think if you are, for example, the leader of a cartel, sure.”

2005: Gingrich calls for “universal but confidential DNA testing” as part of healthcare reform, according to an account in a South Carolina newspaper. (Via National Review)

2005: During the Ward Churchill affair, Gingrich suggests tenure should be abolished at state universities.

“We ought to say to campuses, it’s over … We should say to state legislatures, why are you making us pay for this? Boards of regents are artificial constructs of state law. Tenure is an artificial social construct,” he says. “Tenure did not exist before the twentieth century, and we had free speech before then. You could introduce a bill that says, proof that you’re anti-American is grounds for dismissal.”

2006: Gingrich suggests the U.S. should pursue a counter-terrorism strategy that would curtail terrorists’ free speech rights, predicting “a serious debate about the First Amendment.”

“My prediction to you is that either before we lose a city, or if we are truly stupid, after we lose a city, we will adopt rules of engagement that use every technology we can find to break up their capacity to use the internet, to break up their capacity to use free speech, and to go after people who want to kill us,” he says. (Via NR)

2009: In a speech to the American Israel Public Affairs Committee (AIPAC) police conference, Gingrich declares an electromagnetic pulse (EMP) attack to be one of the gravest threats to U.S. national security. He cites a fictional thriller to bolster his case:

“What I’m about to say to you is from my heart, and from everything I’ve learned in almost fifty-one years, we are on the edge of catastrophic problems. If you get a chance, read my friend Bill Forstchen’s novel, One Second After, which describes the fate of a small town, after an electromagnetic pulse attack.”

2010: Gingrich argues that the United States should not allow construction of the “ground zero mosque” because Saudi Arabia does not allow construction of churches or synagogues – effectively endorsing Saudi-style religious discrimination.

“There should be no mosque near Ground Zero in New York so long as there are no churches or synagogues in Saudi Arabia,” he says. “The time for double standards that allow Islamists to behave aggressively toward us while they demand our weakness and submission is over.”

2011: Angered by the liberal 9th Circuit Court of Appeals, Gingrich says he’d like to empower the president to fire judges.

“I would do no more than eliminate Judge Berry in San Antonio and the Ninth circuit. That’s the most I would go for,” he says. “But let me say this because I think this has to be part of our national debate. That’s not a rhetorical comment. I believe the legislative and executive branches have an obligation to defend the Constitution against judges who are tyrannical and who seek to impose un-American values on the people of the United States.”

2011: In an appearance at Harvard, Gingrich challenges child labor laws, floating the idea of replacing pricey unionized janitors with kids:

“Most of these schools ought to get rid of the unionized janitors, have one master janitor and pay local students to take care of the school,” he says. “The kids would actually do work, they would have cash, they would have pride in the schools, they’d begin the process of rising.”

 

By: Justin Elliott, Salon, December 2, 2011

December 5, 2011 Posted by | Election 2012 | , , , , , | Leave a comment

“Justice Denied”: David Prosser ‘Chokehold’ Case Produces No Charges In Wisconsin

There will be no criminal charges against the Wisconsin Supreme Court justice accused of choking a colleague in chambers, the special prosecutor investigating the case told The Associated Press Thursday.

Justice Ann Walsh Bradley had alleged that Justice David Prosser put her in a “chokehold” during an argument in chambers in June over the passage of Gov. Scott Walker’s budget bill. Prosser’s defenders said Bradley rushed at him with her fists raised and he put up his hands in self-defense.

With all but one of the state high court justices present for the altercation, and offering widely different stories of what happened, Sauk County District Attorney Patricia Barrett, who was given the case by local prosecutors and law enforcement who recused themselves, decided not to pursue charges, she told the AP.

“The totality of the facts and the circumstances and all of the evidence that I reviewed did not support my filing criminal charges,” Barrett said.

Barrett did not disclose how she came to that decision, but said witnesses had different versions of what happened. She didn’t elaborate.

Prosser, a conservative justice on the officially nonpartisan court, did not seek reconciliation with Bradley in a statement he issued after Barrett’s announcement.

“Justice Ann Walsh Bradley made the decision to sensationalize an incident that occurred at the Supreme Court,” Prosser said. “I was confident the truth would come out and it did. I am gratified that the prosecutor found these scurrilous charges were without merit. I have always maintained that once the facts of this incident were examined, I would be cleared. I look forward to the details becoming public record.”

Bradley, a liberal justice, released a statement defending her decision to make the skirmish public.

“My focus from the outset has not been one of criminal prosecution, but rather addressing workplace safety,” she said. “I contacted law enforcement the very night the incident happened but did not request criminal prosecution. Rather, I sought law enforcement’s assistance to try to have the entire court address informally this workplace safety issue that has progressed over the years. To that end, chief of (Capitol Police Charles) Tubbs promptly met with the entire court, but the efforts to address workplace safety concerns were rebuffed. Law enforcement then referred the matter for a formal investigation and I cooperated fully with the investigation.”

Prosser was reelected to a 10-year term in a contentious election in April. Bradley’s term is up in 2015.

By: Reid J. Epstein, Politico, August 25, 2011

August 26, 2011 Posted by | Conservatives, Democracy, Democrats, Elections, GOP, Gov Scott Walker, Politics, Republicans, Right Wing, States, Teaparty, Unions, Wisconsin, Wisconsin Republicans | , , , , , , , , | Leave a comment

The Deeply Crazy In Virginia’s Obamacare Lawsuit

As  my Philadelphia Phillies idled through a two-hour rain delay Thursday night, I  curled up with some light reading: a Texas  Review of Law & Politics article by the legal team, led by Virginia  Attorney General Ken Cuccinelli, that’s challenging the new healthcare individual mandate in the U.S. Court of Appeals for the Fourth Circuit.

It’s  fascinating stuff.

Cuccinelli  and co. follow a long trail from the 18th century British jurist  William Blackstone to the Dred Scott  case to the New Deal to the present  day. The conservative team, at  first, makes a tight, prudential case against  the Obamacare mandate  that I, in my nonprofessional capacity, happen to favor.

In  their words:

No  existing case needs to be overruled and no existing  doctrine needs to be  curtailed or expanded for Virginia to prevail on  the merits. Nor does Virginia  remotely suggest that the United States  lacks the power to erect a system of  national healthcare. Virginia  expressly pled that Congress has the authority to  act under the taxing  and spending powers as it did with respect to Social Security and  Medicare, but that Congress in this instance lacked the political   capital and will to do so. No challenge has been mounted by Virginia to  the  vast sweep and scope of the Patient Protection and Affordable Care Act (PPACA).  Instead, only the mandate and penalty were challenged  because the claimed power  is tantamount to a national police power  inasmuch as it lacks principled  limits.

In  plainer, get-to-the-point English: We grant you the social safety  net  established under the “Roosevelt Settlement.” We recognize  Congress’s power to  regulate interstate commerce. We even grant that  this power could conceivably  deliver universal healthcare. But for  Pete’s sake, don’t try to include  “inactivity”—that is, not buying a  health insurance plan on the private  market—under its purview.

Because,  once you regulate the act of doing nothing, what’s left to regulate?

Er,  nothing.

Thus,  does the state’s power to tax and police become theoretically unlimited?

But,  later in the body of the piece, Team Cuccinelli begins to play  other, more  presently familiar cards. Glenn Beck fans will recognize  the faces in the rogue’s  gallery: Justice Oliver Wendell Holmes,  progressive philosopher John Dewey, and  others who, this argument goes,  created the post-New Deal legal and  philosophical edifice.

Wouldn’t  you know it, this welfare-state stuff constitutes a violation of natural law—which, ipso facto,  means economic laissez-faire—and a lurch into moral chaos.  Echoing the  newly popular Hayek, Cuccinelli’s article asserts the primacy of   economic rights while characterizing as relativistic the   not-exclusively-liberal jurisprudential argument that personhood and  dignity  precede the marketplace. (Last I checked, I’ve never seen an  unborn baby sign a  contract.)

Come  conclusion time, the piece sounds eerily like it’s not merely  advocating the  curtailment of an otherwise defensible attempt to  advance the national  interest, but rather like a full-throated  libertarian manifesto:

The  Progressive Meliorists had argued that they should  be accorded constitutional  space in which to make a social experiment,  agreeing in turn to be judged by  the results. The New Dealers carried  the experiment forward. Seventy years  later, results are in suggesting  that the experiment is living beyond its  means. The statist heirs to  the experiment say that it cannot and must not be  curtailed, so now  they claim this new power.

Social  Security and Medicare—an experiment! Just a temporary, 70-year blip on the  radar!

So,  in 46 pages, we proceed from modest and reasonable to deeply crazy.

It  behooves us to ask, what’s Cuccinelli’s endgame?

I  think we’ve seen this movie before.

 

By: Scott Galupo, U. S. News and World Report, August 18, 2011

August 19, 2011 Posted by | Affordable Care Act, Congress, Conservatives, Constitution, Consumers, Democrats, GOP, Government, Health Care, Health Reform, Human Rights, Ideologues, Ideology, Individual Mandate, Medicare, Politics, President Obama, Public, Regulations, Republicans, Right Wing, Social Security, States, Taxes, Teaparty | , , , , , , , , , , , , , | Leave a comment

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