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.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

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.

Analysis Politics

The 2016 Republican Platform Is Riddled With Conservative Abortion Myths

Ally Boguhn

Anti-choice activists and leaders have embraced the Republican platform, which relies on a series of falsehoods about reproductive health care.

Republicans voted to ratify their 2016 platform this week, codifying what many deem one of the most extreme platforms ever accepted by the party.

“Platforms are traditionally written by and for the party faithful and largely ignored by everyone else,” wrote the New York Times‘ editorial board Monday. “But this year, the Republicans are putting out an agenda that demands notice.”

“It is as though, rather than trying to reconcile Mr. Trump’s heretical views with conservative orthodoxy, the writers of the platform simply opted to go with the most extreme version of every position,” it continued. “Tailored to Mr. Trump’s impulsive bluster, this document lays bare just how much the G.O.P. is driven by a regressive, extremist inner core.”

Tucked away in the 66-page document accepted by Republicans as their official guide to “the Party’s principles and policies” are countless resolutions that seem to back up the Times‘ assertion that the platform is “the most extreme” ever put forth by the party, including: rolling back marriage equalitydeclaring pornography a “public health crisis”; and codifying the Hyde Amendment to permanently block federal funding for abortion.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Anti-choice activists and leaders have embraced the platform, which the Susan B. Anthony List deemed the “Most Pro-life Platform Ever” in a press release upon the GOP’s Monday vote at the convention. “The Republican platform has always been strong when it comes to protecting unborn children, their mothers, and the conscience rights of pro-life Americans,” said the organization’s president, Marjorie Dannenfelser, in a statement. “The platform ratified today takes that stand from good to great.”  

Operation Rescue, an organization known for its radical tactics and links to violence, similarly declared the platform a “victory,” noting its inclusion of so-called personhood language, which could ban abortion and many forms of contraception. “We are celebrating today on the streets of Cleveland. We got everything we have asked for in the party platform,” said Troy Newman, president of Operation Rescue, in a statement posted to the group’s website.

But what stands out most in the Republicans’ document is the series of falsehoods and myths relied upon to push their conservative agenda. Here are just a few of the most egregious pieces of misinformation about abortion to be found within the pages of the 2016 platform:

Myth #1: Planned Parenthood Profits From Fetal Tissue Donations

Featured in multiple sections of the Republican platform is the tired and repeatedly debunked claim that Planned Parenthood profits from fetal tissue donations. In the subsection on “protecting human life,” the platform says:

We oppose the use of public funds to perform or promote abortion or to fund organizations, like Planned Parenthood, so long as they provide or refer for elective abortions or sell fetal body parts rather than provide healthcare. We urge all states and Congress to make it a crime to acquire, transfer, or sell fetal tissues from elective abortions for research, and we call on Congress to enact a ban on any sale of fetal body parts. In the meantime, we call on Congress to ban the practice of misleading women on so-called fetal harvesting consent forms, a fact revealed by a 2015 investigation. We will not fund or subsidize healthcare that includes abortion coverage.

Later in the document, under a section titled “Preserving Medicare and Medicaid,” the platform again asserts that abortion providers are selling “the body parts of aborted children”—presumably again referring to the controversy surrounding Planned Parenthood:

We respect the states’ authority and flexibility to exclude abortion providers from federal programs such as Medicaid and other healthcare and family planning programs so long as they continue to perform or refer for elective abortions or sell the body parts of aborted children.

The platform appears to reference the widely discredited videos produced by anti-choice organization Center for Medical Progress (CMP) as part of its smear campaign against Planned Parenthood. The videos were deceptively edited, as Rewire has extensively reported. CMP’s leader David Daleiden is currently under federal indictment for tampering with government documents in connection with obtaining the footage. Republicans have nonetheless steadfastly clung to the group’s claims in an effort to block access to reproductive health care.

Since CMP began releasing its videos last year, 13 state and three congressional inquiries into allegations based on the videos have turned up no evidence of wrongdoing on behalf of Planned Parenthood.

Dawn Laguens, executive vice president of Planned Parenthood Action Fund—which has endorsed Hillary Clinton—called the Republicans’ inclusion of CMP’s allegation in their platform “despicable” in a statement to the Huffington Post. “This isn’t just an attack on Planned Parenthood health centers,” said Laguens. “It’s an attack on the millions of patients who rely on Planned Parenthood each year for basic health care. It’s an attack on the brave doctors and nurses who have been facing down violent rhetoric and threats just to provide people with cancer screenings, birth control, and well-woman exams.”

Myth #2: The Supreme Court Struck Down “Commonsense” Laws About “Basic Health and Safety” in Whole Woman’s Health v. Hellerstedt

In the section focusing on the party’s opposition to abortion, the GOP’s platform also reaffirms their commitment to targeted regulation of abortion providers (TRAP) laws. According to the platform:

We salute the many states that now protect women and girls through laws requiring informed consent, parental consent, waiting periods, and clinic regulation. We condemn the Supreme Court’s activist decision in Whole Woman’s Health v. Hellerstedt striking down commonsense Texas laws providing for basic health and safety standards in abortion clinics.

The idea that TRAP laws, such as those struck down by the recent Supreme Court decision in Whole Woman’s Health, are solely for protecting women and keeping them safe is just as common among conservatives as it is false. However, as Rewire explained when Paul Ryan agreed with a nearly identical claim last week about Texas’ clinic regulations, “the provisions of the law in question were not about keeping anybody safe”:

As Justice Stephen Breyer noted in the opinion declaring them unconstitutional, “When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”

All the provisions actually did, according to Breyer on behalf of the Court majority, was put “a substantial obstacle in the path of women seeking a previability abortion,” and “constitute an undue burden on abortion access.”

Myth #3: 20-Week Abortion Bans Are Justified By “Current Medical Research” Suggesting That Is When a Fetus Can Feel Pain

The platform went on to point to Republicans’ Pain-Capable Unborn Child Protection Act, a piece of anti-choice legislation already passed in several states that, if approved in Congress, would create a federal ban on abortion after 20 weeks based on junk science claiming fetuses can feel pain at that point in pregnancy:

Over a dozen states have passed Pain-Capable Unborn Child Protection Acts prohibiting abortion after twenty weeks, the point at which current medical research shows that unborn babies can feel excruciating pain during abortions, and we call on Congress to enact the federal version.

Major medical groups and experts, however, agree that a fetus has not developed to the point where it can feel pain until the third trimester. According to a 2013 letter from the American Congress of Obstetricians and Gynecologists, “A rigorous 2005 scientific review of evidence published in the Journal of the American Medical Association (JAMA) concluded that fetal perception of pain is unlikely before the third trimester,” which begins around the 28th week of pregnancy. A 2010 review of the scientific evidence on the issue conducted by the British Royal College of Obstetricians and Gynaecologists similarly found “that the fetus cannot experience pain in any sense prior” to 24 weeks’ gestation.

Doctors who testify otherwise often have a history of anti-choice activism. For example, a letter read aloud during a debate over West Virginia’s ultimately failed 20-week abortion ban was drafted by Dr. Byron Calhoun, who was caught lying about the number of abortion-related complications he saw in Charleston.

Myth #4: Abortion “Endangers the Health and Well-being of Women”

In an apparent effort to criticize the Affordable Care Act for promoting “the notion of abortion as healthcare,” the platform baselessly claimed that abortion “endangers the health and well-being” of those who receive care:

Through Obamacare, the current Administration has promoted the notion of abortion as healthcare. We, however, affirm the dignity of women by protecting the sanctity of human life. Numerous studies have shown that abortion endangers the health and well-being of women, and we stand firmly against it.

Scientific evidence overwhelmingly supports the conclusion that abortion is safe. Research shows that a first-trimester abortion carries less than 0.05 percent risk of major complications, according to the Guttmacher Institute, and “pose[s] virtually no long-term risk of problems such as infertility, ectopic pregnancy, spontaneous abortion (miscarriage) or birth defect, and little or no risk of preterm or low-birth-weight deliveries.”

There is similarly no evidence to back up the GOP’s claim that abortion endangers the well-being of women. A 2008 study from the American Psychological Association’s Task Force on Mental Health and Abortion, an expansive analysis on current research regarding the issue, found that while those who have an abortion may experience a variety of feelings, “no evidence sufficient to support the claim that an observed association between abortion history and mental health was caused by the abortion per se, as opposed to other factors.”

As is the case for many of the anti-abortion myths perpetuated within the platform, many of the so-called experts who claim there is a link between abortion and mental illness are discredited anti-choice activists.

Myth #5: Mifepristone, a Drug Used for Medical Abortions, Is “Dangerous”

Both anti-choice activists and conservative Republicans have been vocal opponents of the Food and Drug Administration (FDA’s) March update to the regulations for mifepristone, a drug also known as Mifeprex and RU-486 that is used in medication abortions. However, in this year’s platform, the GOP goes a step further to claim that both the drug and its general approval by the FDA are “dangerous”:

We believe the FDA’s approval of Mifeprex, a dangerous abortifacient formerly known as RU-486, threatens women’s health, as does the agency’s endorsement of over-the-counter sales of powerful contraceptives without a physician’s recommendation. We support cutting federal and state funding for entities that endanger women’s health by performing abortions in a manner inconsistent with federal or state law.

Studies, however, have overwhelmingly found mifepristone to be safe. In fact, the Association of Reproductive Health Professionals says mifepristone “is safer than acetaminophen,” aspirin, and Viagra. When the FDA conducted a 2011 post-market study of those who have used the drug since it was approved by the agency, they found that more than 1.5 million women in the U.S. had used it to end a pregnancy, only 2,200 of whom had experienced an “adverse event” after.

The platform also appears to reference the FDA’s approval of making emergency contraception such as Plan B available over the counter, claiming that it too is a threat to women’s health. However, studies show that emergency contraception is safe and effective at preventing pregnancy. According to the World Health Organization, side effects are “uncommon and generally mild.”

News Law and Policy

Voting Rights Advocates Notch Another Win, This Time in Texas

Imani Gandy

This makes two voting rights victories in as many days for voting rights advocates. A federal judge on Tuesday in Wisconsin ruled that voters who unable to comply with the state's photo ID requirement would be allowed to vote in the November's election.

The ultra-conservative Fifth Circuit Court of Appeals, in a surprising victory for voting rights advocates, ruled that Texas’s voter ID law disproportionately burdened Black and Hispanic voters in violation of the federal Voting Rights Act (VRA) of 1965.

The decision means Texas can’t enforce the law in November’s presidential election.

Wednesday’s ruling was the latest in a convoluted legal challenge to the Texas law, which conservative lawmakers passed in 2011 and is among the most stringent voter ID laws in the nation. Voting rights advocates challenged the measure almost immediately, and the law remained blocked until the Roberts Court’s 2013 ruling in Shelby County v. Holder revived it.

The Court in Shelby struck down a key provision of the VRA, Section 4, which is the coverage formula used to determine which states must get pre-clearance from the Department of Justice or the District Court for the District of Columbia under Section 5 of the VRA before making any changes to their election laws. States with a history of racially discriminatory voting requirements like Texas were covered by the Section 4 pre-clearance requirement before the Shelby decision.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Within hours of the Court’s ruling in Shelby, Texas officials announced that they would begin enforcing SB 14, the restrictive voter ID law.

In response, a group of Texas voters sued Texas under a different portion of the civil rights law, arguing SB 14 violates Section 2 of the VRA, which forbids voting procedures that discriminate on the basis of race. Unlike Section 5 of the VRA, which requires state officials prove a voting rights law has no discriminatory intent or effect, under Section 2, the burden of proving racial discriminatory intent or effect is placed on voters to prove the restriction discriminated against their voting rights.

Both the district court and a three-judge panel of the Fifth Circuit agreed and found that SB 14 had a discriminatory affect in violation of Section 2 of the VRA. Texas then requested that the Fifth Circuit rehear the case en banc, with the full slate of judges on the Fifth Circuit.

The full Fifth Circuit issued that decision Wednesday, handing Texas conservatives a decisive loss.

“The record shows that drafters and proponents of SB 14 were aware of the likely disproportionate effect of the law on minorities, and that they nonetheless passed the bill without adopting a number of proposed ameliorative measures that might have lessened this impact,” Judge Catharina Haynes wrote for the majority.

Texas claimed that it had modeled its law after Indiana’s law, which was upheld in another challenge, Crawford v. Marion County Election Board. The Fifth Circuit, however, rejected Texas’s argument, finding obvious differences between the two laws that affected its decision that Texas’s law had a discriminatory impact on people of color.

“While cloaking themselves in the mantle of following Indiana’s voter ID law, which had been upheld against a (different) challenge in Crawford, the proponents of SB 14 took out all the ameliorative provisions of the Indiana law,” Haynes wrote.

One such ameliorative provision was an indigency exception, which the GOP-dominated Texas house stripped from the law. That exception would have freed indigent people from any obligation of paying fees associated with obtaining a qualified photo ID.

Although the Fifth Circuit found that the law violates the Voting Rights Act, the Fifth Circuit did not fashion a remedy for this violation and instead, remanded the case back to the lower court, instructing it that the “remedy must be tailored to rectify only the discriminatory effect on those voters who do not have SB 14 ID or are unable to reasonably obtain such identification.”

In addition, the appeals court reversed the lower court ruling that Texas had intended to discriminate against racial minorities. The court found evidence to support such a claim, but ultimately found that the district court’s overall findings were insufficient, and sent the case back to the district court to reconsider the evidence.

Nevertheless, voting rights advocates hailed the decision as a victory.

“We have repeatedly proven—using hard facts—that the Texas voter ID law discriminates against minority voters,” Gerry Hebert, executive director of the Campaign Legal Center and an attorney for the plaintiffs, said in a statement, according to the Texas Tribune. “The 5th Circuit’s full panel of judges now agrees, joining every other federal court that has reviewed this law. We are extremely pleased with this outcome.”

Texas Republicans, including former governor and presidential candidate Rick Perry, rushed the law through the GOP-majority legislature in 2011, arguing that it was necessary to prevent voter fraud, even though voter fraud has been found to be almost nonexistent in other Republican-led investigations.

Politifact found in March of this year that since 2002, there had been 85 election fraud prosecutions, and not all of them resulted in convictions. To put that in perspective, from 2000 to 2014, some 72 million ballots were cast in Texas, not counting municipal and local elections.

Justin Levitt, a professor at Loyola Law School in Los Angeles, argued in 2015 that most of the Texas prosecutions would not have been prevented by the voter ID law, since the prosecutions were not for in-person voter fraud, but rather for marking someone else’s absentee ballots without their consent, fake registrations, or voting while ineligible.

“There are vanishingly few instances of voter fraud—incidents flat-out, not just prosecutions—that could be stopped by applying a rule requiring ID at the polls,” Levitt said, according to Politifact.

Opponents of SB 14 cited the near absence of proven in-person voter fraud, arguing that the law was intended to dilute the voting strength of the state’s increasing population of people of color, many of whom do not have photo identification and who would find it difficult to obtain it, as the opinion noted.

Laws requiring photo identification disparately impact people of color, students, and low-income voters, all groups who tend to vote for Democrats rather than Republicans.

Nevertheless, Texas conservatives continue to insist that the law was appropriately tailored to address voter fraud. “Voter fraud is real, and it undermines the integrity of the process,” said Gov. Greg Abbott (R) in a statement on Wednesday, according to the Texas Tribune.

Texas may appeal to the Supreme Court and ask the high court to intervene, although given that the Roberts Court remains short one judge, a 4-4 split is possible, which would leave in place the Fifth Circuit’s ruling.

This makes two voting rights victories in as many days for voting rights advocates. A federal judge on Tuesday in Wisconsin ruled that voters who unable to comply with the state’s photo ID requirement would nevertheless be allowed to vote in the upcoming election in November.