Analysis Law and Policy

Republicans Aren’t Just Playing Games on Judicial Nominations—They’re Coming for the Whole Court

Jessica Mason Pieklo

Republicans see an opportunity to capture the second most powerful court in the country—the D.C. Circuit—and they are going for it.

Compared to the other federal circuit courts, the D.C. Circuit is, in a word, different. It’s a difference rooted in the history of the court and in the nature of the work it performs, so much so that it’s readily considered the second most important court in the nation. And that’s precisely why Republicans are making a grab for it.

What Makes the D.C. Circuit Different?

Approximately one-third of D.C. Circuit appeals come from federal agency decisions. Nationwide, that figure is approximately less than 20 percent. Similarly, about one-quarter of the D.C. Circuit’s cases are other civil cases involving the federal government. Nationwide, that figure is closer to 5 percent. In total, about two-thirds of the cases before the D.C. Circuit involve the federal government in some capacity, compared to other circuits, where the federal government is represented in less than 25 percent of the caseload.

Because the D.C. Circuit hears so many cases involving federal regulations or where the federal government is a party, the nature of its work is also very different. For example, unlike other federal circuit courts, the D.C. Circuit does not have a federal prison within its boundaries. That means that prisoner petitions, which make up a significant portion of the workload of other courts of appeals nationwide, do not factor into the workload of the D.C. Circuit. In their place, the D.C. Circuit has handled terrorism and enemy combatant and detention cases, and complicated decisions and rule-making by the Environmental Protection Agency and other federal agencies. These cases are by their nature often extremely complex and time-consuming, a fact the profession readily recognizes. It is this reason primarily that the court is considered a national bench, with judges routinely appointed from outside the District of Columbia.

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The Republican Plan to Keep the Court

Led by Sen. Chuck Grassley (R-IA), Republicans are conducting what Sen. Patrick Leahy (D-VT) has described as a “wholesale filibuster” of President Obama’s nominees to the D.C. Circuit Court of Appeals. This “wholesale filibuster” goes beyond their obstruction of nominees like Caitlin Halligan and the unexplainable delay of Srikanth “Sri” Srinivasan (who unlike Halligan was eventually confirmed) into what can only be described as court-packing by attrition. Grassley is pushing a bill misleadingly called the Court Efficiency Act that would eliminate three currently-unfilled seats on the D.C. Circuit. Grassley and supporters of the measure, like Maine Republican Susan Collins, insist the legislation is necessary because the D.C. court “is the least busy circuit in the country.” Funny thing is, Grassley’s numbers don’t add up.

One of the D.C. court’s greatest defenders is Chief Justice John Roberts, Jr., who in April 2013 told the Senate Judiciary Committee, on which Grassley sits, that “based on our current caseload needs, the D.C. Circuit should continue to function with 11 sitting judges.” Roberts’ conclusion came from his own experience on the bench and data from the Administrative Office of United States Courts, which found that the caseload per active judge for the D.C. Circuit has actually increased by 50 percent since 2005. Currently, there are approximately 188 pending cases for each active judge on the D.C. Circuit, which is more than 50 percent higher than in other circuits. By comparison, using that formula of the number of pending appeals divided by the number of active judges, the Court of Appeals for the Eighth Circuit, which encompasses seven states in the Midwest, including Sen. Grassley’s home state of Iowa, has the lightest workload of any circuit. But that didn’t stop Sen. Grassley from speeding through the recent of confirmation of Jane Kelly to the Eighth Circuit.

Grassley’s legislation first came to light when the D.C. Circuit had four of its 11 seats open. At the time, President Obama had nominated Caitlin Halligan to fill one of those seats. Halligan is by all accounts a mainstream judicial candidate who should have easily sailed through confirmation and appointment. But the National Rifle Association of America and anti-choice extremists opposed Halligan’s nomination, so Grassley and other Republicans in the Senate Judiciary Committee filibustered her nomination, then began moving forward with legislation to cut the remaining seats.

That Grassley’s moving forward despite opposition from other conservatives could represent the final bend in a historical arc that has pitted Jeffersonian conservatives against the federalists, with the role of the D.C. Circuit at the fulcrum—and that is now playing out in the war between Tea Party ideologues and their enablers like Grassley and Sen. Ted Cruz (R-TX) and the Republican establishment. Or it could simply be a calculated move to grab power and keep the nation’s second most important court in conservative hands for a long time to come. Given Grassley’s recent conduct, it’s likely both.

The Current Court and Why Republicans Want It to Stay As Is

The D.C. Circuit is roughly split between four Republicans and four Democrats. Confirmation of President Obama’s remaining nominees would tilt the balance heavily in favor of Democrats. On its face, it’s easy to see why Republicans want to slow this down; but the count ignores the role seniority plays in the federal judiciary. Many federal judges don’t retire. Instead they go to “senior status.” This makes their seat officially vacant but places them on part-time work, meaning they still wield influence.

There are six senior judges on the D.C. Circuit, five of which were appointed by Republicans. That’s nearly as many as the number of active judges. Like other federal courts, the D.C. Circuit hears cases in three-judge panels to start. In all of the cases decided in 2013, nearly 70 percent of the three-judge panels included at least one senior judge. The result is that almost 80 percent of the panels in 2013 were exclusively of majority Republican.

Results of the partisan make-up of the court are predictable. Recent decisions have skewed heavily in favor of management over labor, of corporation’s speech rights over truthful disclosures related to tobacco, and polluters over the ability of the EPA to regulate toxic emissions. Republicans like what they have, and they don’t want to give it up. The Wall Street Journal came out strongly in support of Grassley’s plan, while Grassley himself is going to extraordinary lengths to try and build the factual case for the bill—including, bizarrely, conducting an anonymous poll of sitting judges on their caseload and trying to submit those responses as testimony during committee hearings.

Sen. Harry Reid (D-NV) has insisted the Democrats are serious about getting President Obama’s nominees confirmed—so serious that he’s willing to end the filibuster all together. That’s good news, because Republicans look ready to kill off the nomination of Georgetown law professor Nina Pillard for her “militant feminism,” which includes the belief that public schools shouldn’t teach young girls to be financially dependent on their husbands and that a sex education program that reinforces sex stereotypes should be considered unconstitutional. But that threat, even if Reid carries it through, will not matter if Grassley and his allies are successful. Instead, conservatives will have managed to capture, perhaps indefinitely, the top two federal courts in the nation just as we are engaged in a full-scale battle over the relationship between the federal government and the private sector, the limits to the surveillance state, and the role religion should play, if any, in public life.

And there’s a practical consequence as well. The federal courts are already over-burdened and backlogged thanks to decades of under-funding. Grassley’s plan would only exacerbate this problem. Litigation in federal court already takes years and is a process many hope to avoid. The effect of further squeezing the court of necessary resources, either capital or human, dissuades parties from bringing claims, which when put in context of challenging agency action is its own form of insulating the government from accountability. In short, Grassley’s plan would accomplish everything the modern-day conservative movement is looking for: a way to simultaneously starve government while using its power and resources to enrich itself and its friends.

News Law and Policy

Pastors Fight Illinois’ Ban on ‘Gay Conversion Therapy’

Imani Gandy

Illinois is one of a handful of states that ban so-called gay conversion therapy. Lawmakers in four states—California, Oregon, Vermont, and New Jersey—along with Washington, D.C. have passed such bans.

A group of pastors filed a lawsuit last week arguing an Illinois law that bans mental health providers from engaging in so-called gay conversion therapy unconstitutionally infringes on rights to free speech and freedom of religion.

The Illinois legislature passed the Youth Mental Health Protection Act, which went into effect on January 1. The measure bans mental health providers from engaging in sexual orientation change efforts or so-called conversion therapy with a minor.

The pastors in their lawsuit argue the enactment of the law means they are “deprived of the right to further minister to those who seek their help.”

While the pastors do not qualify as mental health providers since they are neither licensed counselors nor social workers, the pastors allege that they may be liable for consumer fraud under Section 25 of the law, which states that “no person or entity” may advertise or otherwise offer “conversion therapy” services “in a manner that represents homosexuality as a mental disease, disorder, or illness.”

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The pastors’ lawsuit seeks an order from a federal court in Illinois exempting pastoral counseling from the law. The pastors believe that “the law should not apply to pastoral counseling which informs counselees that homosexuality conduct is a sin and disorder from God’s plan for humanity,” according to a press release issued by the pastors’ attorneys.

Illinois is one of a handful of states that ban gay “conversion therapy.” Lawmakers in four states—California, Oregon, Vermont, and New Jersey—along with Washington, D.C. have passed such bans. None have been struck down as unconstitutional. The Supreme Court this year declined to take up a case challenging New Jersey’s “gay conversion therapy” ban on First Amendment grounds.

The pastors say the Illinois law is different. The complaint alleges that the Illinois statute is broader than those like it in other states because the prohibitions in the law is not limited to licensed counselors, but also apply to “any person or entity in the conduct of any trade or commerce,” which they claim affects clergy.

The pastors allege that the law is not limited to counseling minors but “prohibits offering such counseling services to any person, regardless of age.”

Aside from demanding protection for their own rights, the group of pastors asked the court for an order “protecting the rights of counselees in their congregations and others to receive pastoral counseling and teaching on the matters of homosexuality.”

“We are most concerned about young people who are seeking the right to choose their own identity,” the pastors’ attorney, John W. Mauck, said in a statement.

“This is an essential human right. However, this law undermines the dignity and integrity of those who choose a different path for their lives than politicians and activists prefer,” he continued.

“Gay conversion therapy” bans have gained traction after Leelah Alcorn, a transgender teenager, committed suicide following her experience with so-called conversion therapy.

Before taking her own life, Alcorn posted on Reddit that her parents had refused her request to transition to a woman.

“The[y] would only let me see biased Christian therapists, who instead of listening to my feelings would try to change me into a straight male who loved God, and I would cry after every session because I felt like it was hopeless and there was no way I would ever become a girl,” she wrote of her experience with conversion therapy.

The American Psychological Association, along with a coalition of health advocacy groups including the American Academy of Pediatrics, the American Counseling Association, and the National Association of Social Workers, have condemned “gay conversion therapy” as potentially harmful to young people “because they present the view that the sexual orientation of lesbian, gay and bisexual youth is a mental illness or disorder, and they often frame the inability to change one’s sexual orientation as a personal and moral failure.”

The White House in 2015 took a stance against so-called conversion therapy for LGBTQ youth.

Attorneys for the State of Illinois have not yet responded to the pastors’ lawsuit.

News Law and Policy

Wisconsin GOP’s Voter Restriction Law Suffers Another Legal Blow

Imani Gandy

In blocking many of Wisconsin's elections restrictions, the lower court ruled that the state must reform how it deals with voters who have difficulty obtaining the required photo ID to vote.

A federal appeals court yesterday refused to stay a lower court order blocking several Wisconsin voting restrictions, allowing election officials to move forward with early voting in the state next month.

Attorneys on behalf of the state of Wisconsin filed the request for a stay with the Seventh Circuit Court of Appeals after a lower court judge last month issued an injunction that blocked parts of Wisconsin’s sweepings elections laws.

The lower court ruled that the justification for the laws did not justify the burden on voting rights that they impose. And this week a three-judge panel of the Seventh Circuit declined to stay that ruling, without explaining.

The ruling comes days after elections officials in Madison and Milwaukee announced their intention to kick off early voting in late September, a month earlier than would have been allowed had the lower court not struck down the restrictions on early voting, according to the Milwaukee-Wisconsin Journal Sentinel.

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The Republican-backed elections law created state-imposed limitations on the time and location for in-person absentee voting, a provision requiring absentee ballots be sent by mail instead of fax or email, the requirement that dorm lists—a certified list provided by the university of the students living in college housing, which student voters may use as proof of residence—must include citizenship information, a ban on using expired but otherwise qualifying student IDs to establish proof of residency, and a 28-day durational residency requirement.

In blocking many of Wisconsin’s elections restrictions, the lower court ruled that the state must reform how it deals with voters who have difficulty obtaining the required photo ID to vote. Gov. Scott Walker (R) and the GOP-controlled Wisconsin legislature had implemented a system under which people who don’t have birth certificates or who have problems with gathering documentation needed to obtain the proper identification would still be able to vote.

The lower court noted that the Walker administration’s system did not provide a viable long-term solution for those voters who could not obtain their birth certificates because they were destroyed in fires or misplaced by bureaucrats.

The court later stayed that portion of the ruling, stating that the system created by Walker’s administration—which provides people with temporary voting credentials while they await a decision about whether they qualify for an ID—was sufficient to allow people to vote during the upcoming November election and therefore does not need to be immediately reformed.

The ruling comes on the heels of a ruling in another voting rights case in Wisconsin, Frank v. Walker, about the state’s voter ID law. In that case, a three-judge panel of the Seventh Circuit stayed a ruling that would have permitted anyone eligible to vote in Wisconsin to an accommodation that would permit that voter to cast a ballot after signing an affidavit stating that they could not easily obtain an ID.

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