Analysis Law and Policy

Administration’s Renewed Focus on Filling Federal Court Vacancies Reveals Mixed Bag of Nominees

Jessica Mason Pieklo

Just after the election President Obama moved to fill seven federal court vacancies. Almost all the nominees are good news for civil rights advocates.

Federal judicial vacancies reached critical levels during President Barack Obama’s first term, but there’s reason to think that is starting to change. Just after the election President Obama nominated seven individuals to fill District Court judicial vacancies, including two seats in the nation’s busiest court in Manhattan. It was a bold move that went largely unnoticed in the press but could have significant consequences for the future of the federal judiciary. And with more than 100 vacancies on the federal bench nationwide, the move couldn’t come soon enough.

Two of the seven nominees, former FBI general counsel Valerie Caproni and New York state Judge Analisa Torres, were nominated to fill vacancies in the Southern District of New York in Manhattan, one of the busiest federal courts in the country where a significant degree of anti-terrorism and anti-corporate fraud litigation occurs. While both women bring significant experience with them, Caproni’s nomination is one that deserves a second look.

Caproni served as the FBI’s general counsel from 2003 to 2011 where she became embroiled in the FBI’s use of “exigent letters” to try and legally justify FBI domestic surveillance efforts including warrantless wiretaps of US civilians. Caproni left the FBI to become deputy general counsel at Northrop Grumman Corporation, a defense systems manufacturer. Caproni also worked in other enforcement roles, including time at the U.S. Securities and Exchange Commission and the U.S. Attorney’s office in Brooklyn. She also did stints at Cravath, Swaine & Moore and Simpson Thacher & Bartlett, white-shoe law firms known for their cozy relationships with the banking and finance industries.

Given the fact that so much terrorism-related litigation and Wall Street fraud litigation originates in the Southern District Court of New York it’s hard to see how Caproni’s presence on the federal bench would be a good thing. She is, in short, representative of the worst of the Bush-era administrations and policies that the Obama administration just can’t seem to shake and her nomination to the federal bench is, to put it mildly, a disappointment.

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Thankfully Torres offers a much different picture, as are the remaining nominees. Torres is currently a state court judge, but previously worked as a teacher. She is a former City Planning Commissioner and currently serves as the Chair of the  Women’s Housing and Economic Development Corp. Given the fact that district court judges handle the trials and are in many ways the front-lines of the federal bench Torres involvement in city management and her time as a state court judge will serve her well should she be confirmed.

Colorado federal public defender Raymond P. Moore was nominated to fill a vacancy in the U.S. District Court in Colorado. Moore’s career includes a significant amount of time as a public defender. This background in the public defenders office is refreshing to see in a federal judiciary dominated by former prosecutors. Moore isn’t the only public defender nominated for the federal bench. Florida Circuit Court Judge William L. Thomas was nominated to the United States District Court for the Southern District of Florida. Before becoming a judge he served as an Assistant Federal Public Defender but began his legal career as an Assistant Public Defender at the Miami-Dade County Public Defender’s Office in 1994. 

Derrick Kahala Watson, if confirmed, would be the only person of Native Hawaiian ancestry on the federal bench. Watson is currently an assistant U.S. attorney and chief of the civil division and is one of two federal prosecutors nominated to the bench. New Mexico U.S. Attorney Kenneth Gonzales was also nominated. Gonzales spent 11 years with the New Mexico U.S. Attorney’s office before his appointment to the head position. In that capacity, he serves on the Attorney General Advisory Committee’s subcommittees on Native American Issues and Southwest Border and Immigration Issues, and would be a welcome addition to a federal bench that will be dealing with the rapidly changing demographics of the Southwest.

Finally, President Obama nominated Los Angeles County Superior Court Judge Beverly Reid O’Connell to the U.S. District Court in Los Angeles. O’Connell has been a Superior Court judge since 2005. Prior the becoming a judge she was a federal prosecutor in Los Angeles and worked for a time in the organized crime and terrorism section of the U.S. Attorneys office. 

As we’ve seen with President Obama’s nominations during his first term, this is a diverse and multi-talented cohort of federal judicial nominees. Many of the nominees built careers serving the most vulnerable, an important qualification as poverty is increasingly a status offense. And while it’s impossible to predict how any of these judges would rule on reproductive justice issues, we can be almost certain they are more willing to protect a woman’s fundamental right to privacy from government overreach than any nominees Mitt Romney would have offered up.

Analysis Law and Policy

Federal Court Says Trans Worker Can Be Fired Based on Owner’s Religious Beliefs

Jessica Mason Pieklo

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

When the U.S. Supreme Court ruled in 2014 in Burwell v. Hobby Lobby that the owners of secular for-profit businesses could challenge laws they believed infringed on their religious liberties, civil rights advocates warned that the decision was just the start of a new wave of litigation. On Thursday, those predictions came true: A federal district judge in Michigan ruled that a funeral home owner could fire a transgender worker simply for being transgender.

The language of the opinion is sweeping, even if the immediate effect of the decision is limited to the worker, Aimee Stephens, and her boss. And that has some court-watchers concerned.

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

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According to court documents, Stephens, an employee at Detroit’s R.G. & G.R. Funeral Homes, gave her boss—the business’ owner—a letter in 2013 explaining she was undergoing a gender transition. As part of her transition, she told her employer that she would soon start to present as a woman, including dressing in appropriate business attire at work that was consistent both with her identity and the company’s sex-segregated dress code policy.

Two weeks later, Stephens was fired after being told by her boss that what she was “proposing to do” was unacceptable and offensive to his religious beliefs.

In September 2014, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Stephens, arguing the funeral home had violated Title VII of the federal Civil Rights Act, which prohibits employment discrimination. According to the EEOC, Stephens was unlawfully fired in violation of Title VII “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”

Title VII of the Civil Rights Act allows those employees who have been discriminated against in the workplace to collect money, known as civil damages. Those damages usually come in the form of lost wages, back pay, and funds to make up for—to some degree—the abuse the employee faced on the job. They are also designed to make employers more vigilant about their workplace culture. Losing an employment discrimination case for an employer can be expensive.

But attorneys representing Stephens’ employer argued that the Religious Freedom Restoration Act (RFRA) protected their client from legal liability for firing Stephens. On Thursday, a federal court agreed. It said that paying such damages for unlawfully discriminating against an employee could amount to a substantial burden on an employer’s religious beliefs. 

According to the court, despite the fact that Stephens’ boss admitted he fired her for transitioning, and despite the fact that the court found this admission to be direct evidence of employment discrimination, RFRA can be a defense against that direct discrimination. To use that defense, the court concluded, all the funeral home owner had to do was assert that his religious beliefs embraced LGBTQ discrimination. The funeral home had “met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs,” the court wrote.

In other words, Hobby Lobby provides employers a defense to discriminating against LGBTQ people on the basis of religious beliefs.

“The RFRA analysis is extremely troubling, and the implications of it [are] as well,” said Knight. “I believe this is the first case applying RFRA to a Title VII claim with respect to nonministerial employees.”

If the scope of the opinion were broader, Knight continued, “this would allow [employers in general] to evade and refuse to comply with uniform nondiscrimination law because of their religious views.”

This, Knight said, is what advocates were afraid of in the wake of Hobby Lobby: “It is the concern raised by all of the liberal justices in the dissent in Hobby Lobby, and it is what the majority in Hobby Lobby said the decision did not mean. [That majority] said it did not mean the end of enforcement of nondiscrimination laws.”

And yet that is exactly what we are seeing in this decision, Knight said.

According to court documents, Stephens’ boss has been a Christian for more than 65 years and testified that he believes “the Bible teaches that God creates people male or female,” that “the Bible teaches that a person’s sex is an immutable God-given gift, and that people should not deny or attempt to change their sex.” For Stephens’ former boss, Stephens’ transition to a woman was “denying” her sex. Stephens had to be fired, her boss testified, so that he would not be directly complicit in supporting the idea that “sex is a changeable social construct rather than an immutable God-given gift.”

If the “complicit in denying God’s will” sounds familiar, it should. It has been the exact argument used by businesses challenging the birth control benefit of the Affordable Care Act. Those business owners believe contraception is contrary to God’s will and that complying with federal law, which says birth control should be treated in insurance policies as any other preventive service, makes them complicit in sin. Thursday’s decision cites Hobby Lobby directly to support the court’s conclusion that complying with federal nondiscrimination law can be avoided by asserting a religious objection.

Think of the implications, should other courts follow this lead. Conservatives have, in the past, launched religious objections to child labor laws, the minimum wage, interracial marriage, and renting housing to single parents—to name a few. Those early legal challenges were unsuccessful, in part because they were based on constitutional claims. Hobby Lobby changed all that, opening the door for religious conservatives to launch all kinds of protests against laws they disagree with.

And though the complaint may be framed as religious objections to birth control, to LGBTQ people generally, and whatever other social issue that rankles conservatives, these cases are so much more than that. They are about corporate interests trying to evade regulations that both advance social equity and punish financially those businesses that refuse to follow the law. Thursday’s opinion represents the next, troubling evolution of that litigation.

CORRECTION: This article has been updated to clarify John Knight’s position with the American Civil Liberties Union of Illinois.

News Law and Policy

Federal Appeals Court Restores Wisconsin’s Voter ID Law

Imani Gandy

A federal appeals court in Chicago stayed a trial court order that would have allowed Wisconsin residents to vote without complying with the state’s photo identification requirement.

In an order issued Wednesday, a federal appeals court in Chicago struck a blow to voting rights advocates, staying a trial court order that would have allowed residents to vote without complying with the state’s photo identification requirement.

The trial court order, issued by District Court Judge Lynn Adelman last month, did not strike the law outright, but instead carved out an exception to it. It would have permitted voters who are unable to obtain an ID to sign an affidavit testifying to that inability and receive a ballot to vote.

A three-judge panel of the Seventh Circuit Court of Appeals, including one judge, Diane Sykes, whom Donald Trump named as a potential U.S. Supreme Court appointee, pointed out that the exception was overly broad and “likely to be reversed on appeal.”

In April of this year, the same three-judge panel issued a ruling in the case that entitled anyone eligible to vote in Wisconsin, but who could not obtain a qualifying photo ID with reasonable effort, to an accommodation that would permit that voter to cast a ballot.

But on Wednesday, that panel criticized the injunction Adelman issued, noting that Adelman had failed to identify specific voters who would not be able to “obtain a qualifying photo ID with reasonable effort.” Instead, the panel argued, Adelman’s injunction would have permitted any registered voter to declare by affidavit that their reasonable effort would not produce a photo ID, even if that voter had never tried to secure a voter ID and even if a hypothetical effort to obtain the requisite ID would, by objective standards, be reasonable and would succeed.

The court of appeals pointed out that in upholding Indiana’s voter ID law in Crawford v. Marion County Election Board, the Supreme Court held in 2008 that “the inconvenience of making a trip to the [department of motor vehicles], gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.”

Because the district court did not attempt to define a substantial obstacle to voting, versus a particular voter’s unwillingness to make the sort of reasonable effort that the Supreme Court already held in Crawford that a state can require, the court of appeals said the injunction is likely to be reversed on appeal.

The order marks a loss for voting rights advocates, who had recently seen victories in Texas, North Carolina, and North Dakota, where federal courts had weakened or entirely tossed out voter ID laws.

Like Republicans in those states, conservatives in Wisconsin, including former Republican Party presidential candidate Gov. Scott Walker, have argued that voter ID laws are necessary to prevent voter fraud, even though voter fraud has been found to be almost nonexistent in other Republican-led investigations.

It is unclear whether lawyers challenging the law will ask the Seventh Circuit for a rehearing en banc (before the full court) or will immediately petition the Supreme Court for review. Reports that North Carolina Gov. Pat McCrory will ask the Supreme Court to weigh in on that state’s voter ID law, however, make it increasingly likely that the Court will weigh in as soon as the next term.

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