News Law and Policy

Senate Confirms Pamela Harris to Fourth Circuit Court of Appeals

Jessica Mason Pieklo

Senate Republicans opposed Harris' nomination and accused Democrats of trying to stack the federal appeals court ahead of a pending challenge to the Affordable Care Act.

On Monday, the U.S. Senate confirmed Pamela Harris to the U.S. Court of Appeals for the Fourth Circuit, jumpstarting the stalled fight over President Obama’s judicial nominees.

The Senate confirmed Harris by a 50-43 vote, taking up her nomination before that of Jill Pryor, a nominee to the Eleventh Circuit Court of Appeals, and deviating from the typical practice of voting for judges in order.

Pryor has been waiting since mid-June for a confirmation vote from the Senate. Pryor’s nomination was part of a package deal with Republicans that included the nomination of Georgia Court of Appeals Judge Michael Boggs to the federal district court. Boggs’ nomination has come under fire from advocacy organizations such as NARAL Pro-Choice America and civil rights leaders who question his past support of a host of anti-choice and anti-equality measures. Concern over the Boggs nomination has reached Senate Democrats, who have one by one announced opposition to Boggs, leaving the nomination in limbo.

The legal community broadly supported Harris’ nomination, and she received a unanimous “Well Qualified” rating from the American Bar Association Standing Committee on the Federal Judiciary. A former appellate litigator from the law firm of O’Melveny & Myers, visiting professor at Georgetown University Law Center, and a senior advisor to Georgetown’s Supreme Court Institute, Harris has described her view of the Constitution as a “profoundly progressive document,” a statement Republicans like Sen. Charles Grassley (R-IA) used as a basis of their opposition to Harris.

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In a veiled reference to Pryor and Boggs’ nominations, Grassley accused Democrats of skipping past other circuit court nominees to move quickly on Harris’ nomination in an effort to “stack” the court while it considers legal challenges to the Affordable Care Act. “The other side wants to stack the Fourth Circuit just like they did the D.C. Circuit,” Grassley said on the Senate floor. “Because the Fourth Circuit hears a disproportionate number [of] significant cases involving federal law and regulations, just like the D.C. Circuit. So my colleagues should understand that a vote for this nominee is also a solid vote for Obamacare as the cases make their way through that court.”

It was the battle over President Obama’s nominees to the D.C. Circuit Court of Appeals and repeated Republican obstructionist tactics that prompted Senate Majority Leader Harry Reid (D-NV) to invoke the so-called nuclear option and change Senate rules to prevent the filibuster of most presidential appointments.

Harris’ appointment to the Fourth Circuit is an important one and in many ways represents a snapshot of the evolving federal judiciary under the Obama administration. The Fourth Circuit was once considered one of the more conservative federal appeals courts in the country, but thanks to a slew of appointments by President Obama it has become more centrist, with a majority of the 15-member court appointed under a Democratic president. As a private practice attorney, Harris reflects that centrist approach.

Harris’ appointment makes her only the sixth woman ever to sit on the Fourth Circuit, and brings the percentage of active female appellate judges overall to nearly 35 percent.

Commentary Politics

It’s Not Just Trump: The Right Wing’s Increasing Reliance on Violence and Intimidation as a Path to Power

Jodi Jacobson

Republicans have tried to pass Trump's most recent comments off as a joke because to accept the reality of that rhetoric would mean going to the core of their entire party platform and their strategies. The GOP would have to come to terms with the toll its power plays are taking on the country writ large.

This week, GOP presidential nominee Donald Trump stated that, if Hillary Clinton were elected and able to nominate justices to the Supreme Court, “Second Amendment people” might be able to do something about it. After blaming the media for “being dishonest” in reporting his statement, the Trump campaign has since tried to pass the comment off as a joke. However characterized, Trump’s statement is not only part of his own election strategy, but also a strategy that has become synonymous with those of candidates, legislators, and groups affiliated with the positions of the GOP.

To me, the phrase “Second Amendment people” translates to those reflexively opposed to any regulation of gun sales and ownership and who feel they need guns to arm themselves against the government. I’m not alone: The comment was widely perceived as an implicit threat of violence against the Democratic presidential nominee. Yet, GOP party leaders have failed to condemn his comment, with House Speaker Paul Ryan (R-WI) agreeing with the Trump campaign that it was “a joke gone bad.”

Republicans have tried to pass it off as a joke because to accept the reality of their rhetoric would mean going to the core of their entire party platform and their strategies. The GOP would have to come to terms with the toll its power plays are taking on the country writ large. The rhetoric is part of a longer and increasingly dangerous effort by the GOP, aided by corporate-funded right-wing organizations and talk show hosts, to de-legitimize the federal government, undermine confidence in our voting system, play on the fears held by a segment of the population about tyranny and the loss of liberty, and intimidate people Republican leaders see as political enemies.

Ironically, while GOP candidates and leaders decry the random violence of terrorist groups like Daeshitself an outgrowth of desperate circumstances, failed states, and a perceived or real loss of powerthey are perpetuating the idea of loss and desperation in the United States and inciting others to random violence against political opponents.

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Trump’s “Second Amendment” comment came after a week of efforts by the Trump campaign to de-legitimize the 2016 presidential election well before a single vote has been cast. On Monday, August 1, after polls showed Trump losing ground, he asserted in an Ohio campaign speech that “I’m afraid the election’s gonna be rigged, I have to be honest.”

Manufactured claims of widespread voter fraud—a problem that does not exist, as several analyses have shown—have nonetheless been repeatedly pushed by the GOP since the 2008 election. Using these disproven claims as support, GOP legislatures in 20 states have passed new voter restrictions since 2010, and still the GOP claims elections are suspect, stoking the fears of average voters seeking easy answers to complex problems and feeding the paranoia of separatist and white nationalist groups. Taking up arms against an illegitimate government is, after all, exactly what “Second Amendment remedies” are for.

Several days before Trump’s Ohio speech, Trump adviser Roger Stone suggested that the result of the election might be “illegitimate,” leading to “widespread civil disobedience” and a “bloodbath,” a term I personally find chilling.

Well before these comments were made, there was the hate-fest otherwise known as the Republican National Convention (RNC), during which both speakers and supporters variously called for Clinton to be imprisoned or shot, and during which New Jersey Gov. Chris Christie, a man not widely known for his high ethical standards or sense of accountability, led a mock trial of Hillary Clinton to chants from the crowd of “lock her up.” And that was the tame part.

The number of times Trump has called for or supported violence at his rallies is too long to catalogue here. His speeches are rife with threats to punch opponents; after the Democratic National Convention, he threatened to hit speakers who critiqued his policies “so hard their heads would spin.” He also famously promised to pay the legal fees of anyone who hurt protesters at his rallies and defended former campaign manager Corey Lewandowski after allegations surfaced that Lewandowski had assaulted a female Breitbart reporter.

A recent New York Times video compiled over a year of reporting at Trump rallies revealed the degree to which many of Trump’s supporters unapologetically express violence and hatred—for women, immigrants, and people of color. And Trump eschews any responsibility for what has transpired, repeatedly claiming he does not condone violence—his own rhetoric, that of his associates, and other evidence notwithstanding.

Still, to focus only on Trump is to ignore a broader and deeper acceptance, even encouragement of, incitement to violence by the GOP that began long before the 2016 campaign.

In 2008, in what may appear to be a now forgotten but eerily prescient peek at the 2016 RNC, then-GOP presidential nominee Sen. John McCain (R-AZ), and his running mate, former Alaska Gov. Sarah Palin, used race-baiting and hints at violence to gin up their crowds. First, Palin accused Obama of “palling around with terrorists,” a claim that became part of her stump speech. As a result, Frank Rich then wrote in the New York Times:

At McCain-Palin rallies, the raucous and insistent cries of “Treason!” and “Terrorist!” and “Kill him!” and “Off with his head!” as well as the uninhibited slinging of racial epithets, are actually something new in a campaign that has seen almost every conceivable twist. They are alarms. Doing nothing is not an option.

Nothing was in fact done. No price was paid by GOP candidates encouraging this kind of behavior.

In 2009, during congressional debates on the Affordable Care Act, opponents of the health-care law, who’d been fed a steady diet of misleading and sensationalist information, were encouraged by conservative groups like FreedomWorks and Right Principles, as well as talk show hosts such as Sean Hannity, to disrupt town hall meetings on the legislation held throughout the country. Protesters turned up at some town hall meetings armed with rifles with the apparent intention of intimidating those who, in supporting health reform, disagreed with them. In some cases, what began as nasty verbal attacks turned violent. As the New York Times then reported: “[M]embers of Congress have been shouted down, hanged in effigy and taunted by crowds. In several cities, noisy demonstrations have led to fistfights, arrests and hospitalizations.”

In 2010, as first reported by the Washington Post’s Greg Sargent, Tea Party candidate Sharron Angle, in an unsuccessful bid to unseat Senate Majority Leader Harry Reid (D-NV), suggested that armed insurrection would be the answer if “this Congress keeps going the way it is.” In response to a request for clarification by the host of the radio show on which she made her comments, Angle said:

You know, our Founding Fathers, they put that Second Amendment in there for a good reason and that was for the people to protect themselves against a tyrannical government. And in fact Thomas Jefferson said it’s good for a country to have a revolution every 20 years.

I hope that’s not where we’re going, but, you know, if this Congress keeps going the way it is, people are really looking toward those Second Amendment remedies and saying my goodness what can we do to turn this country around? I’ll tell you the first thing we need to do is take Harry Reid out.

Also in 2010, Palin, by then a failed vice-presidential candidate, created a map “targeting” congressional Democrats up for re-election, complete with crosshairs. Palin announced the map to her supporters with this exhortation: “Don’t retreat. Instead, reload!”

One of the congresspeople on that map was Arizona Democrat Gabby Giffords, who in the 2010 Congressional race was challenged by Jesse Kelly, a Palin-backed Tea Party candidate. Kelly’s campaign described an event this way:

Get on Target for Victory in November. Help remove Gabrielle Giffords from office. Shoot a fully automatic M16 with Jesse Kelly.

Someone took this literally. In January 2011, Jared Lee Loughner went on a shooting rampage in a Tuscon grocery store at which Giffords was meeting with constituents. Loughner killed six people and injured 13 others, including Giffords who, as a result of permanent disability resulting from the shooting, resigned from Congress. Investigators later found that Loughner had for months become obsessed with government conspiracy theories such as those spread by GOP and Tea Party candidates.

These events didn’t stop GOP candidates from fear-mongering and suggesting “remedies.”  To the contrary, the goading continued. As the Huffington Post‘s Sam Stein wrote in 2011:

Florida Senate candidate Mike McCalister, who is running against incumbent Sen. Bill Nelson (D-Fla.), offered a variation of the much-lampooned line during a speech before the Palms West Republican Club earlier this week.

“I get asked sometimes where do I stand on the Second and 10th Amendment, and I have a little saying,” he declared. “We need a sign at every harbor, every airport and every road entering our state: ‘You’re entering a 10th Amendment-owned and -operated state, and justice will be served with the Second Amendment.’” [Emphasis added.]

These kinds of threats by the GOP against other legislators and even the president have gone unpunished by the leadership of the party. Not a word has come from either House Speaker Paul Ryan or Senate Majority Leader Mitch McConnell decrying these statements, and the hyperbole and threats have only continued. Recently, for example, former Illinois GOP Congressman Joe Walsh tweeted and then deleted this threat to the president after the killing of five police officers in Dallas, Texas:

“3 Dallas cops killed, 7 wounded,” former congressman Joe Walsh, an Illinois Republican, wrote just before midnight in a tweet that is no longer on his profile. “This is now war. Watch out Obama. Watch out black lives matter punks. Real America is coming after you.”
Even after the outcry over his recent remarks, Trump has escalated the rhetoric against both President Obama and against Clinton, calling them the “founders of ISIS.” And again no word from the GOP leadership.
This rhetoric is part of a pattern used by the right wing within and outside elections. Anti-choice groups, for example, consistently misrepresent reproductive health care writ large, and abortion specifically. They “target” providers with public lists of names, addresses, and other personal information. They lie, intimidate, and make efforts to both vilify and stigmatize doctors. When this leads to violence, as David Cohen wrote in Rolling Stone this week, the anti-choice groups—and their GOP supporters—shrug off any responsibility.
Some gun rights groups also use this tactic of intimidation and targeting to silence critique. In 2011, for example, 40 men armed with semi-automatic weapons and other guns surrounded a restaurant in Arlington, Texas, in which a mothers’ group had gathered to discuss gun regulations. “Second Amendment people” have spit upon women arguing for gun regulation and threatened them with rape. In one case, a member of these groups waited in the dark at the home of an advocate and then sought to intimidate her as she approached in her wheelchair.
The growing resort to violence and intimidation in our country is a product of an environment in which leading politicians not only look the other way as their constituents and affiliated groups use such tactics to press a political point, but in which the leaders themselves are complicit.
These are dangerous games being played by a major political party in its own quest for power. Whether or not Donald Trump is the most recent and most bombastic evidence of what has become of the GOP, it is the leadership and the elected officials of the party who are condoning and perpetuating an environment in which insinuations of violence will increasingly lead to acts of violence. The more that the right uses and suggests violence as a method of capturing, consolidating, and holding power, the more they become like the very terrorists they claim to be against.

News Violence

Fetal Tissue Workers Sue to Stop David Daleiden From Getting Their Names

Nicole Knight

The plaintiffs' lawyer explained that the researchers, who remain anonymous in the complaint, “are very fearful that they may be subjected to the same type of harassment and violence” that abortion clinic employees have faced.

Employees and scientists with ties to the University of Washington’s Birth Defects Research Laboratory have won a temporary reprieve in federal court barring the release of their personal information to anti-choice activist David Daleiden and his cohorts.

Federal judge James L. Robart granted the restraining order on Wednesday, after the plaintiffs filed a class action lawsuit to block the release of a trove of documents requested by Daleiden and a representative from a Washington state anti-choice group. The unredacted records reveal the individuals’ identifying information, such as names, addresses, and phone numbers, according to court documents.

A hearing on a permanent order is expected later this month in U.S. District Court for the Western District of Washington.

Using the Washington state Public Records Act, Daleiden and Zach Freeman, communications director with the anti-choice Family Policy Institute of Washington, had sought records dating back to 2010 related to work at the Birth Defects Research Laboratory. The research laboratory collects, processes, and distributes fetal tissue for research at academic and nonprofit institutions nationwide, according to court documents. Also ensnared in the sweeping document request were various medical and bioscience institutions, including Seattle Children’s Hospital and Planned Parenthood affiliates.

Daleiden had requested purchase orders, invoices, emails, grant applications, contracts, materials transfer agreements, rent/lease agreements, and other documents, according to an exhibit in court documents.

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Janet Chung, counsel with Seattle-based Legal Voice, who is representing the plaintiffs, said her clients wanted to stop the release of the unredacted records.

Daleiden, a self-proclaimed investigative journalist and head of the California-based anti-choice group Center for Medical Progress, was formerly indicted for his role in a string of discredited “sting” videos falsely accusing Planned Parenthood of profiting from fetal tissue donations.

Reached by phone on Friday, Chung explained that the plaintiffs, who remain anonymous in the complaint, “are very fearful that they may be subjected to the same type of harassment and violence” that abortion clinic employees have faced, particularly after the publication of the CMP videos. Releasing the unredacted records would violate the plaintiffs’ constitutional right to privacy and free association, according to the complaint.

Chung called Daleiden and Freeman’s records request a “fishing expedition” intended to “harass and intimidate.”

In an emailed statement, Daleiden said he is seeking the “truth” about a “cover-up” at the University of Washington.

When Rewire asked Daleiden whether he objected to redacting identifying information, such as names and addresses, he said in an email that his records request in February did not ask for the “personal contact information of any individuals whatsoever.”

As he explained to Rewire, however, he is seeking the communications of eight individuals whom he considers public figures:

My request only seeks those of 8 public figures…who are very publicly identified with their work at [Birth Defects Research Laboratory] with fetal body parts or with Planned Parenthood’s abortion program in Washington state.

The eight “public figures” that Daleiden names include a retired birth defects researcher, a research director at Seattle Children’s Hospital, and a top executive at Planned Parenthood.

Chung, however, told Rewire that Daleiden’s request was so broad that releasing the records would disclose the personal information of more than 150 individuals.

Chung said the plaintiffs resorted to court action because the state public records law doesn’t necessarily require the redaction of personal information, and the University of Washington had warned that it would release the records on August 5.

About two weeks before filing the complaint, Chung said they’d discussed redacting the documents with Daleiden, but he declined. She said they’re continuing to try to resolve the matter with Daleiden’s legal counsel.

In affidavits included with the complaint, plaintiffs claim they’ve been threatened, harassed, and exposed to violence —even murder—due to their ties to fetal tissue research.

As an employee at Seattle Children’s Hospital, identified only as John Doe 1 to protect his privacy and safety, writes:

In one case, Seattle Children’s diagnosed a fetus with a lethal disorder, and because of number of weeks of gestation, the patient had to travel out of state to obtain an abortion. I had interactions with the physician who performed the abortion relating to the autopsy that Children’s Labs performed on the fetus. That physician was later killed by someone with anti-abortion views.

In another affidavit, a professor and research scientist who studies congenital birth defects and is identified as Jane Doe 8, writes:

I fear that having my identity and personal information released to the public would lead to harassment, threats, or violence directed against me or my family.

Protecting the privacy and safety of researchers and employees with ties to fetal tissue science has emerged as an issue of growing concern among scientists as anti-choice groups and Republican lawmakers march on with what some have called a Planned Parenthood “witch hunt.”

In June, the head of the U.S. House Select Investigative Panel on Infant Lives revealed fetal tissue scientists’ identities in letters sent to U.S. Department of Health and Human Services—prompting fears in the medical research community the individuals will be subject to harassment and violence by anti-abortion activists.

As Chung told Rewire, “This is all very much rooted in the concern that the same types of harassment and violence that clinics experience are now being targeted on a wider range of people—all with the goal of chilling important research and medical care.”

The lawsuit is the fourth filed against Daleiden and his anti-choice group following the release of the first wave of CMP’s sting videos last summer. Planned Parenthood Federation of America, the National Abortion Federation (NAF), and StemExpress, a fetal tissue processing firm that once worked with Planned Parenthood, have all sued in federal court in California.

Daleiden often frames his work as citizen journalism, but in a brief filed with the NAF lawsuit, 18 of the country’s leading journalists and journalism scholars noted that “calling himself an ‘investigative journalist’ … does not make it so.”

In April, California Attorney General Kamala Harris’ office searched Daleiden’s California apartment as part of an ongoing investigation into the CMP’s secret recording methods.

Officials in a dozen states, including Washington state, have cleared Planned Parenthood of any wrongdoing in its tissue donation programs, and eight additional states have declined to investigate the health-care provider.

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