January, 02 2013, 02:14pm EDT
Empty Courtrooms in Obama's First Term: A Slow Start on Judicial Nominations Magnified Many Times Over By Republican Obstruction
WASHINGTON
As the U.S. Senate departs for the year, it leaves behind unfinished business: four long-pending circuit court nominations and 70 unfilled vacancies in the federal courts, with another 20 upcoming vacancies already announced.
President Obama ends his first term with more federal judicial vacancies than when he began. There are a number of reasons for this failure to efficiently fill seats in the federal courts, including the president's slow start in making nominations in the early years of his first term. But that slow start was magnified many times over by Senate Republicans' extreme intransigence, leading to a historic vacancy crisis in our federal courts that has persisted long after the White House picked up its pace on nominations. In an effort to keep the courts dominated by George W. Bush-nominated conservatives and to stall the president's agenda wherever possible, Senate Republicans have stymied the nomination and confirmation of federal judicial nominees at every step in the process and at an unprecedented scale.
The result was that almost every one of President Obama's first-term judicial nominees was delayed in the Judiciary Committee, and once approved by the Committee, waited an average of three times as long for a confirmation vote from the full Senate as did President Bush's first-term nominees.
That persistent obstruction led to record vacancy levels in the federal courts. The 55 vacancies at the start of Obama's presidency jumped to 90 over the course of his first year in office, and they have rarely gone below that number since. Notably, the president also ends his first term without confirming a single judge to the enormously influential Court of Appeals for the D.C. Circuit, four of whose 11 seats are now vacant.
There were, of course, bright spots in the past four years of judicial nominations. Two extraordinarily qualified women earned seats on the Supreme Court. Sonia Sotomayor became the nation's first Latina Supreme Court justice, and Elena Kagan brought the total number of women on the Court to three for the first time in history.
President Obama also brought unprecedented diversity to the lower federal courts. 41 percent of President Obama's confirmed judicial nominees have been women - the highest percentage in history - and he has now put more women on the federal bench in four years than President Bush did in eight. President Obama has also nominated a higher percentage of African Americans, Hispanics, and Asian Americans than any previous president, ensuring that our federal courts are beginning to reflect the country they serve. In addition, President Obama has put more openly LGBT people on the federal bench than all of his predecessors combined.
But this effort to bring talented, fair-minded Americans with a diversity of backgrounds to the federal bench has been hampered by a consistent and needless slow-walking of nominees in the U.S. Senate. This memo outlines the obstruction tactics that have resulted in a persistently high vacancy rate in the federal courts and needless delays for Americans seeking justice.
Abuse of the Filibuster and Filibuster Equivalents
The most well-known tool of Senate obstruction - the filibuster - has been abused to a new level by the Senate GOP in the last two Congresses. In 2005, many Senate Republicans loudly proclaimed that it was unconstitutional - not just a bad idea, but actually a violation of the United States Constitution - for Democratic senators to filibuster a small number of George W. Bush's circuit court nominees on the well-documented grounds that they were dangerously out of the mainstream. A few others joined the bipartisan "Gang of 14," agreeing that filibusters of judicial nominations were only appropriate under undefined "extraordinary circumstances." After January 20, 2009, they threw their claimed principles to the wind and made clear just what constitutes "extraordinary circumstances" in their book: being nominated by a Democratic president.
The Senate GOP expanded the use of filibusters to stall the confirmation of consensus circuit court nominees. Of the ten circuit court nominations on which Democrats have had to file cloture in order to break GOP obstruction, half had cleared the Judiciary Committee with overwhelming bipartisan support, and half went on to be confirmed with similarly overwhelming bipartisan support. In one typical example, Republicans filibustered the nomination of Adalberto Jordan of Florida to sit on the Eleventh Circuit Court of Appeals, blocking a vote for four months after he was approved unanimously by the Judiciary Committee. (In contrast, the average confirmed circuit court nominee during President Bush's first term waited only a month for a floor vote.) Jordan, who had the strong support of Florida Republican Sen. Marco Rubio, would become the first Cuban American to sit on the Eleventh Circuit. Once the filibuster was broken 89-5, he was confirmed in a 94-5 vote. No apologies or explanations for the filibuster were ever given.
Notably, the Senate GOP has been willing to filibuster even noncontroversial district court nominees, who historically have faced little partisan resistance on their way to trial court positions. The majority party had to move to end a filibuster of one district court nominee during the Clinton administration and one during the George W. Bush administration. In contrast, in just four years of President Obama's administration, the majority has been forced to file twenty cloture petitions to end filibusters of district court nominees, almost all of whom were eventually confirmed unanimously or near-unanimously.
And this is just obstruction that ended in cloture votes. Because scheduling a vote in the Senate requires unanimous consent, Senate Republicans have been able to quietly delay votes on judicial nominees for months without stating a reason. These quiet delays - which effectively amount to filibusters but are not formally recorded as such - have led to a tremendous and damaging slowing of the confirmation process. President Obama's circuit court nominees have, on average, been forced to wait 135 days between committee approval and a vote from the full Senate. In contrast, President Bush's first-term circuit court nominees waited an average of just 37 days for a Senate vote. Similarly, President Obama's district court nominees have waited an average of 103 days for a Senate vote, in contrast to just 35 days for Bush's first-term nominees.
Three of the four currently pending circuit court nominees have been held up by this type of silent filibuster: the GOP has simply refused to allow confirmation votes for Patty Shwartz (Third Circuit, waiting for a vote since March), Richard Taranto (Federal Circuit, also waiting since March), and William Kayatta (First Circuit, waiting since April). The fourth - Robert Bacharach - has been waiting "only" since June. Republicans defeated a cloture petition to end the filibuster of Bacharach's nomination, even after his home-state Republican senator Tom Coburn said that such a move would be "stupid." Not one of these nominees is opposed by their home state senators. In fact, two - Maine's Kayatta and Oklahoma's Bacharach - come from states where those supportive senators are both Republicans. All four nominees have received the highest possible evaluation of their qualifications by the ABA. They simply are not controversial. Their "problem" is that they are mainstream jurists nominated by President Obama.
Creative Obstruction
Filibusters and obstruction tactics on the Senate floor are the most visible types of Senate gridlock, but the GOP's obstruction of President Obama's first term judicial nominees went much deeper.
It started with the very process of finding potential nominees. President Obama has consulted extensively with home state senators to find qualified federal judicial nominees. But despite these efforts, a number of nominees are stuck in the Judiciary Committee awaiting hearings because the nominee's home-state senators have refused to give their permission for the nomination to go forward. In committee jargon, these senators have not signed the "blue slip" signaling a formal go-ahead.
For instance, the people of Georgia can thank their own senators for two long-open district court vacancies. In January 2011, President Obama nominated Linda T. Walker and V. Natasha Perdew Silas to fill two officially-designated emergency vacancies in Georgia's Northern District. Sens. Johnny Isakson and Saxby Chambliss opposed Silas but never said why. Nevertheless, that was enough to keep her from even getting a hearing before the Judiciary Committee. And since Silas's nomination was linked to Walker's, the Georgia senators' machinations wrecked both nominations. Similarly, without giving a reason, Isakson and Chambliss have not submitted their blue slips for the undoubtedly qualified Jill Pryor for a Georgia-designated Eleventh Circuit seat, leaving her nomination in limbo for 10 months and counting.
In 2011, freshman Wisconsin senator Ron Johnson refused to submit his blue slips when President Obama renominated a circuit and district court nominee who had not gotten votes in 2010. These were nominees who had been recommended by a bipartisan commission, and no other newly elected senator that year blocked similar renominations in their state. As with Georgia's district court nominations, these were returned to the White House, and the seats remain vacant and without nominees.
This summer Louisiana Sen. David Vitter blocked the committee from considering the nomination of Shelly Dick to a district court seat she'd been nominated to back in April, unilaterally deciding that the Judiciary Committee should not consider her nomination because it was too close to the presidential election. After Obama's victory, Vitter relented, presenting her to the committee with his full support last month (but too late to be confirmed in 2012, as she should have been). In Nevada, Sen. Dean Heller has blocked a committee hearing on Elissa Cadish for reasons widely condemned as ludicrous: before the Supreme Court's 2008 gun control decision in Heller, she correctly described to a newspaper what was then the state of Second Amendment law.
Unfortunately, even once nominees had a chance to testify before the Judiciary Committee, they were not free from stalling tactics. Ranking Member Chuck Grassley, like Ranking Member Jeff Sessions before him, took advantage of a rule allowing the minority party to postpone committee votes on nominees to stall all but five of the nominees the committee considered - a full 97% of the nominees that have come before the committee for a vote. These nominations were delayed anywhere between one and six weeks before heading to further delays on the Senate floor.
Empty Excuses
In attempting to defend the indefensible, Senate Republicans have been flaunting faulty statistics and nonsensical comparisons. Criticized last month for his consistent use of stalling tactics, Sen. Grassley claimed that the Senate had confirmed more nominees in President Obama's first term than in a "similar period" in Bush's presidency. The "similar period" he referred to was in fact a "dissimilar period" - he cherry-picked numbers in order to compare President Obama's first term with George W. Bush's second term, in which the Senate confirmed fewer nominees simply because there were fewer vacancies to fill. And in any event, Bush's second-term confirmed nominees, just like his first, got a floor vote on average far more quickly than Obama's.
A Second-Term Focus on the Courts
One of the Senate's key duties is to ensure the health of the nation's judicial branch. But the Republican minority has increasingly ignored its duty to "advise and consent," instead using judicial nominees as pawns in politically-motivated gridlock. This has resulted in a vacancy crisis that has left federal courts across the country understaffed and unable to provide swift access to individuals and businesses seeking their day in court. It has also meant that the right-wing ideology that President Bush required in his judicial nominees continues to dominate the federal courts.
Elections have consequences. The American people once again decisively chose President Obama as the person we want to be choosing our federal judges. He has made an effort to name fair jurists with broad bases of support and diverse backgrounds. Senate Republicans have a responsibility to take their "advise and consent" duties seriously, considering nominees on their merits and moving the confirmation process as efficiently as possible in order to ensure a court system that works for the Americans who depend on it.
President Obama has signaled that he will make judicial nominations a priority in his second term. The Senate must do better in the next four years to ensure that Americans have a federal court system that works.
People For the American Way works to build a democratic society that implements the ideals of freedom, equality, opportunity and justice for all. We encourage civic participation, defend fundamental rights, and fight to dismantle systemic barriers to equitable opportunity. We fight against right-wing extremism and the injustice it fosters.
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Top G20 Ministers Back 2% Wealth Tax for Global Billionaires
"It is time that the international community gets serious about tackling inequality and financing global public goods."
Apr 25, 2024
Ministers from four major economies on Thursday called for a 2% wealth tax targeting the world's billionaires—who currently only pay up to 0.5% of their wealth in personal income tax—to "invest in public goods such as health, education, the environment, and infrastructure."
Fernando Haddad, Brazil's finance minister; Svenja Schulze, Germany's minister for economic cooperation and development; Enoch Godongwana, South Africa's finance minister; Carlos Cuerpo, Spain's minister of economy, trade, and business; and María Jesús Montero, Spain's first vice president and finance minister, made their case in an opinion piece for The Guardian.
"The argument behind such tax is straightforward: We need to enhance the ability of our tax systems to fulfill the principle of fairness, such that contributions are in line with the capacity to pay," they explained. "Persisting loopholes in the system imply that high-net-worth individuals can minimize their income taxes."
"What the international community managed to do with the global minimum tax on multinational companies, it can do with billionaires."
Brazil, Germany, and South Africa are all Group of 20 members while Spain is a permanent guest. The ministers noted that "Brazil has made the fight against hunger, poverty, and inequality a priority of its G20 presidency, a priority that German development policy also pursues and that Spain has ambitiously addressed domestically and globally."
"By directing two-thirds of total expenditure on social services and wage support, as well as by calibrating tax policy administration, South Africa continues to target a progressive tax and fiscal agenda that confronts the country's legacy of income and wealth inequality," they wrote.
The ministers continued:
It is time that the international community gets serious about tackling inequality and financing global public goods. One of the key instruments that governments have for promoting more equality is tax policy. Not only does it have the potential to increase the fiscal space governments have to invest in social protection, education, and climate protection. Designed in a progressive way, it also ensures that everyone in society contributes to the common good in line with their ability to pay. A fair share contribution enhances social welfare.
With exactly these goals in mind, Brazil brought a proposal for a global minimum tax on billionaires to the negotiation table of the world's major economies for the first time. It is a necessary third pillar that complements the negotiations on the taxation of the digital economy and on a minimum corporate tax of 15% for multinationals. The renowned economist Gabriel Zucman sketched out how this might work. Currently, there are about 3,000 billionaires worldwide. The tax could be designed as a minimum levy equivalent to 2% of the wealth of the superrich. It would not apply to billionaires who already contribute a fair share in income taxes. However, those who manage to avoid paying income tax would be obliged to contribute more towards the common good.
The five ministers cited estimates suggesting that "such a tax would potentially unlock an additional $250 billion in annual tax revenues globally—this is roughly the amount of economic damages caused by extreme weather events last year."
"Of course, the argument that billionaires can easily shift their fortunes to low-tax jurisdictions and thus avoid the levy is a strong one. And this is why such a tax reform belongs on the agenda of the G20," they added. "International cooperation and global agreements are key to making such tax effective. What the international community managed to do with the global minimum tax on multinational companies, it can do with billionaires."
Guardian economics editor Larry Elliott reported Thursday that "Zucman is now fleshing out the technical details of a plan that will again be discussed by the G20 in June. France has indicated support for a wealth tax and Brazil has been encouraged that the U.S., while not backing a global wealth tax, did not oppose it."
The French economist told Elliott that "billionaires have the lowest effective tax rate of any social group. Having people with the highest ability to pay tax paying the least—I don't think anybody supports that."
Except the billionaires, of course. "I don't want to be naive. I know the superrich will fight," Zucman added. "They have a hatred of taxes on wealth. They will lobby governments. They will use the media they own."
A few months ago, no one wanted to talk int. taxes, let alone on the super rich. Now we have a process (#G20), finance ministers (\ud83c\udde7\ud83c\uddf7 \ud83c\uddeb\ud83c\uddf7 \ud83c\uddff\ud83c\udde6 \ud83c\uddea\ud83c\uddf8 & others) supporting it, \ud83c\udde9\ud83c\uddea in part & everyone agreeing that proceeds should help fund climate and dev: https://t.co/ZldF557pAL— (@)
The ministers' opinion piece follows the International Monetary Fund (IMF) and World Bank's Spring Meetings last week, during which anti-poverty campaigners pressured the largest economies to address inequality with policies like taxing the superrich and to pour resources into the global debt and climate crises.
"The IMF and World Bank say that tackling inequality is a priority but in the same breath back policies that drive up the divide between the rich and the rest," Kate Donald, head of Oxfam International's Washington D.C. office, said last week. "Ordinary people struggle more and more every day to make up for cuts to the public funding of healthcare, education, and transportation. This high-stakes hypocrisy has to end."
Oxfam America policy lead Rebecca Riddell declared Thursday that "extreme inequality stands in the way of solving our most urgent global challenges. We need to tax the ultrawealthy."
"Read this brilliant new op-ed on the case for a global tax on billionaires, by ministers from Brazil, Germany, South Africa, and Spain," Riddell added, posting the piece on social media.
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"This suffering does not advance any rational policy goal," said the advocacy groups. "It merely exists to further the political goal of deterrence, which is cruel, inhumane, and misguided."
Apr 25, 2024
Citing ample evidence of human rights abuses in U.S. immigration detention centers, 200 advocacy groups on Thursday demanded that the Biden administration reverse course on a planned expansion of detention facilities and said President Joe Biden's "further entrenching" of the government's reliance on detaining migrants marks "an utter betrayal" of his campaign promises.
The president's signing of a spending bill last month provided $3.4 billion for U.S. Immigration and Customs Enforcement (ICE), clearing the way for the agency to make space to jail 41,500 immigrants per day in facilities across the country.
After Biden campaigned on ending the use of for-profit detention centers, said the groups, he took office at a time when fewer than 15,000 people were being held in immigration detention facilities—which gave him "a remarkable opportunity to wind down a wasteful and abusive system."
But after the president's 2023 and 2024 budget requests signaled an intention of reducing detention funding—with ICE itself recommending that numerous facilities be closed due to "critical staffing shortages that have led to safety risks and unsanitary living conditions"—Biden last year requested supplemental detention funding as commentators and Republicans in Congress hammered the administration for allowing so-called "chaos" at the U.S.-Mexico border.
"Your FY2025 budget request sought funding for 34,000 beds instead of the 25,000 sought in the two previous cycles," wrote the groups, including Amnesty International USA, the National Immigrant Justice Center (NIJC), and the Texas Civil Rights Project. "The result is unsurprising: the FY2024 spending bill you signed provides ICE $3.4 billion to jail an average of 41,500 immigrants per day, historically high funding surpassing all four years of the Trump administration."
The groups, which provide legal aid and other assistance to people who have been detained as migrants, said many of their clients "carry lifelong scars from the mistreatment and dehumanization they endured because of the United States' reliance on detention, mostly through private prisons and county jails."
The administration is seeking to expand a system, said the groups, in which the jails and prisons used have been found to "operate under insufficient standards."
The organizations cited a 2018 ACLU reportthat found inadequate medical care contributed to the deaths of more than half of the detained immigrants who died in custody between December 2015-April 2017; a 2021 case in which an LGBTQ+ man reported "physical and homophobic verbal abuse" at a facility in Louisiana; and the finding by Physicians for Human Rights (PHR) that the use of solitary confinement in detention centers "regularly meets the United Nations' definition of torture."
Biden signed the spending bill two weeks after Charles Daniel, a 61-year-old migrant from Trinidad and Tobago, died at a detention center operated by the private contractor GEO Group after being held in solitary confinement for four years. ICE has placed people in solitary confinement over 14,000 times in the last five years, according to PHR, for an average of 27 days each; U.N. experts say exceeding 15 days in solitary confinement constitutes torture.
"This suffering does not advance any rational policy goal," said the groups on Thursday. "Detention does not provide an efficient or ethical means of border processing, and it certainly does not indicate to migrants that they are welcome in the United States. It merely exists to further the political goal of deterrence, which is cruel, inhumane, and misguided—as even the most punitive forms of detention have been proven not to deter people from seeking safety or a better life."
Syracuse University's Transactional Records Access Clearinghouse, which tracks government data, found that as of April 7, more than 61% of ICE detainees have no criminal record, while "many more have only minor offenses, including traffic violations."
"Increasing the incarceration of immigrants is a grave mistake," said the groups, "and we urgently implore you to reverse course."
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"Please, do not insult the intelligence of the American people by attempting to distract us from the immoral and illegal war policies of your extremist and racist government," said the Vermont senator to Israel's prime minister.
Apr 25, 2024
Jewish U.S. Sen. Bernie Sanders issued a scathing statement Thursday pushing back against Israeli Prime Minister Benjamin Netanyahu's characterization of burgeoning protests on American university campuses as "antisemitic," declaring, "It is not antisemitic to hold you accountable for your actions."
"No, Mr. Netanyahu. It is not antisemitic or pro-Hamas to point out that in a little over six months, your extremist government has killed 34,000 Palestinians and wounded more than 77,000—70% of whom are women and children," said Sanders (I-Vt.). "It is not antisemitic to point out that your bombing has completely destroyed more than 221,000 housing units in Gaza, leaving more than one million people homeless—almost half the population."
"Antisemitism is a vile and disgusting form of bigotry that has done unspeakable harm to many millions of people," continued Sanders, who lost family members to the Nazi Holocaust. "But, please, do not insult the intelligence of the American people by attempting to distract us from the immoral and illegal war policies of your extremist and racist government. Do not use antisemitism to deflect attention from the criminal indictment you are facing in the Israeli courts."
No, Mr. Netanyahu. It is not antisemitic or pro-Hamas to point out that in a little over six months your extremist government has killed 34,000 Palestinians and wounded more than 77,000 – 70% of whom are women and children.
You will not distract us from this immoral war. pic.twitter.com/oDaiyU4ipD
— Bernie Sanders (@SenSanders) April 25, 2024
Sanders' statement came a day after Netanyahu
falsely described student protesters speaking out against Israel's catastrophic war on Gaza as "antisemitic mobs" and likened the demonstrations to "what happened in German universities in the 1930s."
"It has to be stopped," Netanyahu said of the campus protests, which have faced violent police crackdowns.
Students at Columbia, Princeton, the City College of New York, the University of Texas at Austin, Northwestern, and other schools nationwide are demanding that the institutions divest from any companies that are participating in or benefiting from Israel's war on Gaza and publicly support an immediate cease-fire.
On Wednesday, hundreds of UT Austin students walked out of their classrooms and marched to the main lawn of the campus before police officers with horses and riot gear
arrived on the scene, arrested dozens, and assaulted some protesters.
"One woman said she saw a large police officer place his entire body weight to detain a young woman protesting," The Texas Tribunereported. "Law enforcement was also seen kneeling on individuals' backs and necks, pulling their hair, and in one case punching a protester in the nose."
Jeremi Suri, a professor of history at UT Austin, toldAl Jazeera that contrary to Republican Gov. Greg Abbott's claim, there was "nothing antisemitic" about Wednesday's protests.
"These students were shouting 'free Palestine,' that's all," said Suri. "They were saying nothing that was threatening. And as they were standing and shouting, I witnessed the police—the state police, the campus police, the city police—an army of police almost the size [of] the student group... many were carrying guns, many were carrying rifles, and then, within a few minutes, this group of police stormed into the student crowd and started arresting students."
In his statement Thursday, Sanders emphasized that criticism of Israel's massively destructive assault on Gaza cannot be conflated with antisemitism.
"It is not antisemitic to note that your government has obliterated Gaza’s civilian infrastructure—electricity, water, and sewage," said Sanders, who earlier this week voted against a foreign aid package that included $17 billion in additional U.S. military assistance for Israel.
"It is not antisemitic to realize that your government has annihilated Gaza's healthcare system, knocking 26 hospitals out of service and killing more than 400 healthcare workers," he continued. "It is not antisemitic to condemn your government's destruction of all of Gaza's 12 universities and 56 of its schools, with hundreds more damaged, leaving 625,000 students with no education."
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