Judicial Vacancy Crisis Needs Prompt Senate Attention When Congress Returns

After a dispiriting, month-long standstill over raising the debt ceiling, Congress came to an agreement earlier this month and then rushed out of town until September, leaving behind a great deal of unfinished business, including the still pending nominations of 20 judicial nominees  who await only a confirmation vote on the Senate floor. Nearly all of these nominees were approved

by the Judiciary Committee without opposition, and many have been nominated to fill "judicial emergency" seats.   

This month, in a new Issue Brief, CAC chronicled the Senate's inattention to the confirmation process and the unprecedented delaying tactics that have been deployed by Senate Minority Leader Mitch McConnell (R-KY), creating  a vacancy crisis on the federal bench, where more than 10 percent of the judgeships have been vacant for more than two years.  Now, a combination of factors -- the unprecedented obstruction of President Obama's judicial nominees, exploding caseloads, and Congress' unwillingness to expand the number of federal judges -- threatens the justice system in America. 

Fortunately, the judicial vacancy crisis got some much needed recent attention in the media with a great story in the New York Times.  The story begins by noting the admirable efforts by the Obama Administration to diversify the federal bench, but then cites to and relies heavily on CAC's new Issue Brief, documenting not only the vacancy crisis, but also the fact that the historically slow pace of confirmations is not even keeping up with attrition. Andrew Blotky of the Center for American Progress and CAC's President, Doug Kendall, also decried this sad state of affairs in an op-ed published in Politico this month.

As Congress gets back to work next week, we hope that the Senate will do what the Constitution commands:  advise and consent to the nomination of qualified federal judges.  No less than justice for the American people is at stake. 

The Tea Partiers' Constitution and Attacks on Health Care Reform

This month, tea partiers and other self-professed "constitutional conservatives" continued their efforts to weaponize the Constitution in support of their ideological agenda.   The latest attack on the Constitution comes from tea partier and U.S. Senator Mike Lee (R-UT) in the form of a "constitutional conservatives" pledge.  This pledge tries to root in the Constitution a bullet-point list of just about every plank of the conservative agenda.  But while Senator Lee's pledge is one of the most detailed manifestations of tea party ideology, it bears little relation to the Constitution, ignoring good portions of it and distorting others, including the textual and historical proof that the Constitution created a strong federal government able to solve national problems. 

CAC's Kendall and Research Assistant Ryan Woo wrote a three-point take-down of tea partiers' anemic view of federal power and their supposed love for the Tenth Amendment in this article on Huffington Post.  As Kendall and Woo explained, tea partiers are simply clinging to the failed Articles of Confederation instead of accepting the fact that states renounced their sovereignty and yielded to the supremacy of the federal government the moment they ratified the Constitution.  CAC's Chief Counsel, Elizabeth Wydra, also addressed tea partiers' misguided view of federal power in an appearance on ABC News' TopLine this month.

But tea partiers aren't the only ones who are misinformed about the Constitution's creation of a strong federal government.  In a sharply divided 2-1 ruling, the U.S. Court of Appeals for the Eleventh Circuit struck down the "individual mandate" that lies at the center of the historic health care reform law, a law that is, to date, the most important legislative accomplishment of the Obama presidency.  As CAC's Wydra explained in this Politico story and in an appearance on Fox News' America's Newsroom this month, the Eleventh Circuit's ruling created a "split" among the federal courts of appeals on the issue (the Sixth Circuit upheld the health care reform law in its entirety), and makes it very likely that the Supreme Court will decide this issue sooner, rather than later.  CAC filed a brief in the Eleventh Circuit case on behalf of more than 150 state legislators from across the country defending the constitutionality of the health care reform law, and our analysis of the Eleventh Circuit's erroneous ruling was also included in these stories by ABC News and the Christian Science Monitor. 

Earlier this month, after tea partiers held our country's full faith and credit hostage, they cheered as our credit rating was downgraded. As we gear up to celebrate Constitution Day in September, CAC will continue to lead progressives in the fight against tea partiers' efforts to hijack and politicize our Nation's Charter.  Please stay tuned to our blog, Text & History, and follow us on Facebook & Twitter to keep abreast of the exciting new ways we will be challenging the "Constitution according to tea partiers" next month! 

CAC Urges Supreme Court to Hear Important Full Faith and Credit Gay Rights Case

This month, CAC filed an amicus curiae brief in the Supreme Court urging the Court to hear Adar v. Smith, a case involving  a young boy born in Louisiana who was legally adopted by a gay couple in New York.  In order to be able to secure health insurance coverage and obtain travel and identity documents for their son, among other important rights and benefits, the couple asked Louisiana to issue an amended birth certificate listing them as the boy's parents.  Louisiana refused, even though state law requires that when a child born in Louisiana has been adopted in another state, Louisiana must issue an amended birth certificate to the adoptive parents upon presentation of the adoption decree, identifying them as the child's parents.  

Louisiana claimed that it had the right to refuse to issue the amended birth certificate because its own laws do not allow joint adoptions by "unmarried persons."  Represented by Lambda Legal, the parents brought suit in federal court, asserting among other things that Louisiana had violated the Full Faith and Credit Clause of the Constitution, which requires a state to give full faith and credit to the "public Acts, Records, and judicial Proceedings of every other state."  The district court ruled in the parents' favor; the ruling was affirmed by a three-judge panel of the Fifth Circuit, but then overturned in a divided ruling by the full Court of Appeals.  

The parents have now asked the Supreme Court to hear the case (grant cert.) and overturn the Fifth Circuit's ruling.  In our amicus brief supporting the parents' cert. petition, we demonstrate that the Court of Appeals'  ruling was inconsistent with the text and history of the Full Faith and Credit Clause, which prohibits one state from refusing to recognize the judgment of another state because of local parochial bias.   As Elizabeth Wydra cleverly put it in a piece about this case on Huffington Post, given Standard and Poor's recent downgrading of the Nation's financial credit rating, "[t]he last thing our country needs is a downgrade of our constitutional Full Faith and Credit." We will keep you posted on whether the Supreme Court takes up this important case.

Litigation Update

In addition to the cases involving the health care reform law, and Adar v. Smith, CAC is also in the middle of another case that could ripen into a big case before the Supreme Court this coming Term.  Earlier this month,  Arizona asked the Supreme Court to review a Ninth Circuit ruling upholding a district court order prohibiting the state from implementing portions of its infamous anti-immigration law, S.B. 1070, which seeks to supplant the federal government in enforcing immigration law in Arizona.  As we've reported previously, the United States successfully sued Arizona to block implementation of some of the most important provisions of the law; Arizona appealed, and we filed a brief in the Ninth Circuit in support of the United States, demonstrating through the Constitution's text, drafting history and structure that the Constitution gives the federal government exclusive power to make the Nation's immigration law.  If the Supreme Court agrees to review Arizona v. United States, we will file a similar brief before the Court in what will surely be one of the most closely watched cases of the Term. 

Please continue to follow the litigation section of our website and our blog, Text & History, for the latest updates in this and all other CAC cases. 

Text & History

Taking the Tenth Amendment Seriously