Sunday, October 23, 2016

On the Web, Cults of Personality for Ginsburg, Thomas

      Welcome to the brave new world of Supreme Court fandom! Two of the current justices, one from each of the ideological blocs, now have web sites created by ardent fans to celebrate their lives, times, and jurisprudence.
      Ruth Bader Ginsburg has her Notorious R.B.G. tumblr, a site created by the then-law student Shana Knizhnik as she was inspired by Ginsburg’s forceful dissent in the court’s decision in 2013 to gut the Voting Rights Act. The site is a richly illustrated, constantly updated buffet of tidbits and morsels from Ginsburg’s opinions and effusive toasts from her admirers along with links to RBG T-shirts and merchandise.
      Not to be outdone, Clarence Thomas’s fans have built two online sites: an all meat-and-potatoes site created by the Washington lawyer Mark Paoletta, a veteran of the Thomas confirmation fight; and the Justice Clarence Thomas Appreciation Page, an in-construction blog that replaces a web site previously maintained by the unidentified author.
      Each of the sites unapologetically glorifies its subject. The Notorious R.B.G. home page promises “Justice Ginsburg in all her glory.” Paoletta describes Thomas on the site’s home page as “a stalwart defender of the original meaning of the Constitution” who “has led the Court back to that all-important document.” The Thomas appreciation page includes speeches and opinions from Thomas and news articles or columns, seemingly all selected to show Thomas not only as forceful and insightful in his opinions but also as generous and approachable off the bench.
      The Thomas web site appears to be newly created, based on the 2016 copyright date at the bottom of the home page. Paoletta, who helped win Thomas’s narrow Senate confirmation as a member of the White House counsel’s office, is not identified on the site but was identified as the creator in an op-ed written for The Hill, the political website chronicler of all things Washington. Paoletta did not respond to requests for an interview for this column; an email request sent to the “contact” address for the Thomas appreciation page also went unanswered.
      Paoletta created a separate website,, to counter what he viewed as the false account of Thomas’s contentious 1991 confirmation in the HBO docudrama Confirmation that aired in the spring. The home page describes the program as “a work of fiction . . . with imaginary scenes, fictional characters, and a biased agenda. . . .”
      In his op-ed, Paoletta joins several other of Thomas’s fans in criticizing what they see as the slight to Thomas in the newly opened National Museum of African American History and Culture. Thurgood Marshall, the first African American justice, apparently gets his due as the architect of the legal fight against racial segregation. As the second black justice, however, Thomas appears only indirectly in an exhibit that includes a picture of Anita Hill, the law professor who accused Thomas of sexual harassment while she worked for him at the Equal Employment Opportunity Commission.
      The critics see an ideological bias against conservatives in the museum’s curation. Paul Mirengoff, writing for the conservative web site Power Line, goes so far as to suggest that conservatives should boycott the museum in protest. The Smithsonian’s only published reply to date has been somewhat weak. “We cannot tell every story in our inaugural exhibitions,” Linda St. Thomas, the Smithsonian’s chief spokesperson, said in an email to Christian News Service.
      Whatever slight there may be, Paoletta arguably made up for it in advance by exaggerating Thomas’s impact at the Supreme Court. Under the heading “Jurisprudence,” Paoletta lists and includes links to 23 of Thomas’s “most significant decisions.” But only one of the so-called “decisions” is actually a majority opinion written for the court. The 22 others include 11 separate concurring opinions and 11 dissents. The compilation underlines not Thomas’s influence but in fact his lack of influence because of idiosyncratic views rejected time and time again by his colleagues, including his fellow conservatives.
      Thomas wrote for all four conservatives in only one of the dissents, and the case demonstrates the oversimplified description of Thomas as committed to originalism in constitutional interpretation. The court in U.S. Term Limits v. Thornton (1995) struck down an Arkansas law imposing term limits on members of the state’s congressional delegation. For the dissenters, Thomas found authority for the measure in the Constitution’s clause authorizing states to regulate “the time, place, and manner” of congressional elections. The majority equally relied on text and original meaning to conclude that states had no authority to add to the qualifications listed in the Constitution: minimum age of 25, at least seven years of U.S. citizenship, and residence in state.
      Through omission, Notorious R.B.G. also exaggerates Ginsburg’s influence. Visitors to the site might not guess that Ginsburg has relatively few major decisions to claim as author or that her liberal colleagues have been at least as forceful as she in their dissenting opinions —  for example, Justice Stephen G. Breyer in his 2007 dissent in a school desegregation case or Justice Elena Kagan in her 2014 dissent objecting to sectarian prayers in legislative sessions.
      Supreme Court watchers who prefer footnoted law review articles might find these sites unsatisfying, but they do make the court’s work more accessible for the Internet era. Sadly, however, the idolizing puffery may make an already overly politicized court appear to be that much more partisan as partisanship rages unabated outside the Marble Palace.

Saturday, October 15, 2016

Safeguard Needed for Racism in Jury Room

      Race is different: different from any of the other categories of prejudice that lurk in our individual or collective subconscious. That is the undeniable lesson of 400 years of American history from slavery through Jim Crow to the present.
      Chief Justice John G. Roberts Jr. resisted the import of this undoubted truth, however, in a closely watched case [Oct. 11] challenging what may have been a racism-infected guilty verdict in a weak criminal case against a Mexican American defendant.
      Miguel Angelo Peña Rodriguez was convicted in 2007 of groping two teenaged sisters in a darkened bathroom at a Colorado race track. The evidence in the brief trial consisted of little more than the girls’ identification — first in a roadside “showup” and then in court. The defense lawyer challenged the identification on a variety of well recognized grounds. Peña denied the accusation and was backed up by a fellow Hispanic who said the two were together in one of the race track’s barns at the time of the offense.
      The jury deliberated for 12 hours before convicting Peña of three misdemeanor counts but acquitting him of a more serious felony charge. In juror interviews after the verdict, his lawyer gathered affidavits from two members of the jury that one of the jurors had made a number of blatantly racist statements during deliberations about Peña and his alibi witness. None of the jurors had volunteered any racial prejudices during jury selection.
      The juror, a white former law enforcement officer identified as H.C., was quoted by his fellow jurors as saying that Peña was guilty because “Mexican men take whatever they want” and “think they can do whatever they want with a woman.” Based on his experience as a law enforcement officer, H.C. said that in his former patrol area Mexicans were guilty “nine times out of ten . . . of being aggressive toward women and young girls.”
      For good measure, H.C. also rejected the alibi witness’s testimony because he was “an illegal.” In fact, the witness testified at trial that he was a legal resident of the United States.
      The evidence, however damning, collides with a rule dating back to 18th century England against impeaching a jury verdict based on deliberations inside the jury room. The Supreme Court embraced the rule in a decision in 1915, saying it was important to protect “frankness and freedom of discussion” among jurors. The court has reaffirmed the rule more recently in decisions in different contexts in 1987 and 2014. The Colorado Supreme Court applied the rule in its 4-3 decision in 2015 upholding Peña’s convictions; he had been sentenced to two years’ probation and required to register as a sex offender.
      The Supreme Court agreed to hear Peña’s appeal, which noted that 18 states allow such challenges for racial bias while Colorado is among the majority along with federal courts that do not. Civil rights groups joined in urging the court to safeguard the Sixth Amendment right to an “impartial” jury by allowing criminal defendants to challenge verdicts based on racist statements in the jury room. The Obama administration sided instead with Colorado in opposing any exceptions to the rule against impeaching a jury verdict based on evidence of “racial prejudice or on other types of bias or misconduct.”
      Representing Peña, Stanford law professor Jeffrey Fisher was only two paragraphs into his argument when Roberts jumped in with an old standby: the slippery slope problem. “What about religious bias?” Roberts asked. “Wouldn’t that come under your exception?” Fisher sought to deflect. “Religion might be viewed similarly,” he said, but he stressed that the court did not need to deal with other contexts in this case.
      Justice Samuel A. Alito Jr. echoed Roberts’ concern. “You’re not being very helpful to the court in your answers,” he said. Roberts asked later about sexual orientation. That might be treated similarly as well, Fisher said, but perhaps decided under a different balancing test.
      Liberal justices, however, jumped in to distinguish race from the hypotheticals Roberts and Alito were raising. “I always thought the most pernicious and odious discrimination in our law is based on race,” Justice Sonia Sotomayor said. Fisher readily agreed. The cases in jurisdictions that allow such challenges all focus on race or national origin, Fisher told the justices. The hypotheticals, he said, were “theoretical arguments.”
      By the end of the arguments, it seemed likely that Peña had the votes of four liberal justices to allow him a hearing to present the evidence and have a court decide whether the verdict against him was constitutionally tainted. A fifth vote on the eight-justice court would be needed from Justice Anthony M. Kennedy, who seemed troubled by the state’s arguments but less than certain. In a preview session, court watcher Tom Goldstein, publisher of SCOTUSblog, suggested that Kennedy might write a decision that allowed such challenges but only under a test “very hard” to meet.
      Roberts had a simpler answer to racial discrimination in a school desegregation case back in 2007. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he wrote then. Jurors may bring other kinds of bias into the jury room, but those cases are no reason to back away from one limited safeguard against the racial discrimination that still pervades criminal justice in the United States.

Monday, October 10, 2016

Trump's Singular Threat to Rule of Law

      Donald J. Trump has been a singular threat to civil liberties and the rule of law almost from the beginning of his presidential campaign. The danger reached a new low in the second presidential debate last night [Oct. 9] when Trump vowed, if elected, to prosecute his campaign opponent, Hillary Rodham Clinton.
      Some of Trump’s rights-endangering campaign promises may pose a lesser danger because they are beyond a president’s power to implement. The president has no unilateral power to change libel laws, for example, nor any power to order local police to adopt unconstitutional stop-and-frisk tactics. But the president does have the power to initiate a criminal prosecution unless a hypothetical attorney general were to decline the instruction.
      With Trump’s campaign in free fall for the past two weeks, the pledge appeared to be a rehearsed tactic to sharpen his attack on Clinton’s use of a private email server while secretary of state. “If I win,” he said when the issue came up during the 90-minute debate, “I am going to instruct my attorney general to look into your situation.”
      Clinton counterattacked. “It’s just awfully good that someone with the temperament of Donald Trump is not in charge of the law in this country,” she said. Trump interrupted to shoot back: “Because you’d be in jail.”
      The threat by one major party presidential candidate to put his opponent in jail if elected has no exact historical precedent, though it recalls the shameful history of the Federalists’ use of the Sedition Act to jail their opponents in the 1790s. Trump’s handlers quickly tried to minimize the threat as “a joke,” according to spokesperson Kayleigh McEnany’s tweet that night, or “a quip,” according to campaign manager Kellyanne Conway the next morning.
      It was surely not taken as a joke, however, by the many Trump supporters who have shown up at rallies wearing “Jail the bitch” T-shirts. Republican pollster Frank Luntz was quoted as saying that the comment registered as one of Trump’s best moments in the debate in the focus group he was monitoring. And Trump himself posted the exchange on Facebook the next morning, with no indication that he was less than serious.
      Clinton has acknowledged her mistake in using a private email server while secretary of state, but the Republican-appointed, tenure-protected FBI director James Comey said the bureau’s investigation found no basis for prosecution. In a rule-of-law system, that ought to be enough, but not for Trump, who went on in last night’s debate to call his Democratic opponent a “liar” and “the Devil.”
      For emerging democracies, it is often said that the real test is not the first election, but the second. The election must be free and fair and the result accepted as such by the public. Trump had already jeopardized that second condition by repeatedly warning about the supposed risk of voter fraud and a “rigged” election, with utterly no basis in fact. He invokes this danger to summon his supporters to serve as election monitors. True voting rights advocates see a real risk of harassment or intimidation of would-be voters by the Trump ballot-watchers in the Democratic-leaning precincts likely to be targeted.
      As a private citizen, Trump has expressly used legal process as a tool of intimidation. He filed an unsuccessful libel suit against author Timothy O’Brien over his critical biography TrumpNation. In a post-mortem, Trump seemed to recognize that the suit was unlikely to succeed, but he congratulated himself for sticking O’Brien and his publisher with a big legal bill.
      As a candidate, Trump has promised to “open up our libel laws” to permit suits when newspapers “write purposely negative and horrible and false articles.” With no federal libel law at present, Trump would need to ask Congress to write one. If one were enacted, it would have to pass muster with the Supreme Court. The court’s line of First Amendment decisions beginning with New York Times v. Sullivan in 1964 requires a public official or public figure a defamatory statement was published with knowledge that it was false or with reckless disregard as to its truth or falsity. None of the current Supreme Court justices has called for reconsidering those decisions.
      As a candidate, Trump has also called for use of stop-and-frisk, citing the policies in New York City in the 1990s as an example. The Supreme Court’s line of decisions beginning with Terry v. Ohio in 1968 permit police to stop and “frisk” someone if the officer has a reasonable suspicion that the person is committing or is about to commit a crime or that the person is armed and dangerous. In a vigorously litigated case, a federal judge found that the city’s indiscriminate use of the tactic against racial minorities was unconstitutional. In the first presidential debate, Trump wrongly disputed the correct account of the ruling by the moderator, NBC’s Lester Holt.
      Trump tosses blustery rhetoric around as if a presidential candidate’s policy pronouncements are no more than click-bait tweets. In the debate, Clinton repeated her line that anyone with Trump’s temperament should not be permitted to have his hands on the nuclear codes. In like vein, no one with Trump’s reckless disregard of the rule of law should have his hands on the Constitution.

Sunday, October 2, 2016

High Court Opens New Term With Low Profile

      The Supreme Court is set to open a new season on Monday [Oct. 3], but the reviews are already coming in — and they’re not good. One after another, court watchers opened preview sessions last month bemoaning the lack of hot-button issues among the unusually small number of 29 cases accepted for review before the justices left for their summer recess. “It’s a docket with cases not as sexy as some might hope,” according to Tom Goldstein, Supreme Court advocate and founder and publisher of SCOTUSblog.
      On the other hand, the justices may prefer a low profile until after the election, according to Carolyn Shapiro, a law professor and co-director of the Supreme Court Institute at Chicago-Kent College of Law. “The chief and most of the justices may want to stay below the radar till November 9,” Shapiro remarked at a preview sponsored by the liberal American Constitution Society.
      True, the cases teed up so far include none of the hot-button issues that produced liberal rulings in the two previous terms: gay marriage, abortion rights, and affirmative action. And there are no cases yet with sharply drawn challenges to major Obama administration policies like those from the last term involving the president’s immigration policy and Obamacare, round four. Both of those produced setbacks for the administration with the eight justices divided evenly between conservative and liberal blocs.
      Still, the cases already scheduled for arguments in the October and November calendars include a significant test of the government’s power to prosecute investment bankers for passing insider tips to family members (Salman v. United States, argument Oct. 5). The city of Miami is also pressing a long-shot civil rights suit against mortgage bankers for the damages their predatory lending practices caused to minority neighborhoods in the form of rampant foreclosures and boarded-up vacant properties (Bank of America v. City of Miami, argument Nov. 8).
      The justices added eight cases in orders issued on Thursday (Sept. 29) following the so-called long conference the previous Monday. “Boring,” snorted Ian Millhiser, the pugnacious Supreme Court watcher at the progressive news site Think Progress Memo. Two of the newly added cases are mind-numbing civil procedure disputes, but the new batch includes a closely watched case that mixes rock music, pro football and the First Amendment in a dispute over how far the government can go in policing racial intolerance.
      The all Asian-American rock band who proudly call themselves “The Slants” is seeking trademark protection for the name despite the finding by the Patent and Trademark Office (PTO) that it amounts to an offensive ethnic slur. The Lanham Act, the longstanding federal trademark law, prohibits federal registration of trademarks that “disparage . . persons, living or dead, institutions, beliefs, or national symbols.” The U.S. Court of Appeals for the Federal Circuit ruled that provision unconstitutional, and the Supreme Court agreed to hear the PTO’s appeal (Lee v. Tam, argument likely in January).
      The Slants are cheered on in their case by the owner of the Washington, D.C., professional football team, whose nickname was found unregistrable because offensive to most if not all Native Americans. The government argues in both cases against any First Amendment violation by noting that the band or the team can continue to use its challenged name but without any protection against infringement of the unregistered trademark.
      Despite its supposed conservative orientation, the Roberts Court has been surprisingly favorable toward criminal defendants in recent years seeking to limit federal sentencing practices or expansive readings of federal criminal statutes. However that issue plays out in the insider trading case, the court will hear pleas in its first two weeks from two criminal defendants seeking to reverse state court convictions based on alleged constitutional violations at trial implicating important questions about racial justice.
      A black death row inmate in Texas condemned for killing his former girlfriend and her new male companion is seeking to overturn his sentence because his lawyer called an expert witness who found black defendants to pose a statistical risk of future dangerousness (Buck v. Davis, argument Oct. 5). An Hispanic defendant in Colorado is asking to reverse his sexual misconduct conviction based on evidence that a juror influentially argued during deliberations that, because of their ethnicity, neither the defendant or an alibi witness was to be believed (Peña-Rodriguez v. Colorado, argument Oct. 11).
      The court gets off to a somewhat slow start with no arguments scheduled on the traditional First Monday in October because of the Jewish holiday Rosh Hashanah and two days blank the next week because of Columbus Day and Yom Kippur. But the second week features a high-stakes patent dispute between the rival combatants in the smartphone wars: Samsung and Apple.
      Samsung is seeking to overturn the $399 million judgment that Apple won by arguing that its rival infringed its design patents on such features as the rounded corners that make it easy to slip phones into pockets. Samsung argues that Apple is entitled if at all to only the portion of its profits attributable to the infringed designs, not the total amount (Samsung Electronics v. Apple, argument Oct. 11).
      Despite the poor reviews, the court bears watching, as always. And cases still in the pipeline may add to the interest and the legal stakes before the term ends next June.

Sunday, September 25, 2016

Sentencing Reform Stalled by 'Dysfunction' in Congress

      After Republicans gained control of the Senate in the 2014 midterm elections, the conservative Federalist Society held a program the next week to explore the seemingly favorable impact on prospects for criminal justice reform at the federal level. The time seemed right for Congress to act given the unified GOP control in the House and the Senate and the broad bipartisan support for reducing federal sentences, especially for low-level drug offenses.
      Two years later, a lot of cold water has been thrown on the hopes for action in Congress thanks to what the New York Times’ veteran Washington correspondent Carl Hulse aptly called “a stunning display of dysfunction” on Capitol Hill [Sept. 17].The bipartisan support that extended from President Obama to House Speaker Paul Ryan and beyond has not been enough to get a floor vote in either chamber on an issue important to liberals for humanitarian reasons and to conservatives for fiscal economy.
      Supporters are not ready to throw in the towel, however, even after committee-approved bills have lain dormant in the Senate and the House for nearly a year. Holly Harris, a one-time Republican political operative who serves as executive director of the bipartisan U.S. Justice Action Network, says the obituaries for the legislation from Hulse and others are “premature.”
      Harris says she is “extremely confident” that the House will vote on legislation in the post-election, lame-duck session thanks to continuing support from Ryan. She is less certain about a vote in the Senate, but points to strong backing for the Senate bill from Texas’s senior Republican senator, John Cornyn. And she believes that one prominent opponent, Arkansas’ Tom Cotton, has actually helped the cause with his “nonsensical” statement that the United States has a problem with “underincarceration,” not overincarceration. “No one believes that,” she says.
      The program at the Federalist Society’s annual national lawyers convention two years ago bore the title, “Criminal Sentencing Reform: A Conversation Among Conservatives.” Presiding over the 90-minute discussion was no less a conservative than William Pryor, a federal appeals court judge appointed by President George W. Bush and a former attorney general in his reliably red home state of Alabama.
      Pryor opened by acknowledging that the cost of crime was “undoubtedly high” and then added, “But so too is the cost of incarceration.” Pryor had been calling for lowering federal prison sentences as far back as 2005. Back then, he said that Alabama faced a prison “crisis” because of a 600 percent increase in the inmate population over a 30-year period as the state’s population rose only 30 percent.
      Federal prisons have similarly grown in population and in costs over the past 30 years, according to data cited by card-carrying conservatives Timothy Head and Grover Norquist. In an article they wrote for as members of the pro-reform Coalition for Public Safety, they quote statistics showing an eight-fold increase in federal prison population from 25,000 to 209,000 since the 1980s. The cost soared nearly seven-fold to $6.85 billion from just under $1 billion.
      In the early handicapping on sentencing reform, the Senate Judiciary Committee’s incoming chairman, Iowa’s Chuck Grassley, was seen as a likely opponent. Grassley in fact opposed the first effort at a bipartisan measure introduced in February 2015 by Utah Republican Mike Lee and Illinois Democrat Richard Durbin.
      By October, however, Grassley was persuaded to join with Durbin as original sponsor of a somewhat softened measure, S. 2123, that the Judiciary Committee approved on Oct. 22, 2015. Within a month, the House Judiciary Committee approved parallel legislation, H.R. 3713. Both bills generally would give federal judges discretion to reduce currently mandatory minimum sentences for low-level drug offenders and would reduce the mandatory sentence enhancements for crimes related to drugs or use of firearms.
      By February 2016, however, both bills were stuck in Capitol Hill limbo, calendared but not scheduled for floor votes. Bill Keller, the former New York Times editor who created The Marshall Project as a pro-reform site, wrote that “the vaunted bipartisan drive” behind sentencing reform was “not quite dead. But its pulse is faint.”
      Keller noted a then-recent poll that found 61 percent of respondents believe there are too many drug offenders in federal prisons and more than 75 percent oppose federal mandatory minimum sentences. “Voters are ready and wiling to reform the criminal justice system in ways that reduce the size and cost of the federal prison system, while improving outcomes,” the Mellman Group stated in summarizing the surveys.
      Harris views the presidential election as the culprit in stopping reform in its tracks. Both major parties included pro-sentencing reform planks in their platforms over the summer, she noted, but “there was no will to vote before the election.” In his article, Hulse casts part of the blame on the Republican presidential nominee Donald Trump for his recent campaign warnings, alarmist and false, about a supposed increase in crime rates in the country.
      The crime rate is in fact at historically low levels, but homicides are spiking in some major cities. Any influence from Trump, however, comes late in the game. Hulse is perhaps more on target in blaming Republicans who simply do not want to add to Obama’s legacy. Harris sees plenty of blame to go around. “If it doesn’t get done,” she says, “it will be a really big indictment of Washington.”

Sunday, September 18, 2016

On Confirming Judges, Senate Just Says No

      President Obama made history this month [Sept. 7] by nominating a Washington lawyer, Abid Riaz Qureshi, to be the first Muslim ever to have a lifetime appointment to a federal court. But Qureshi is unlikely to win Senate confirmation for the post this year — not just because of his religion but more fundamentally because of unprecedented obstructionism from Senate Republicans on nominations to the federal bench.
      The Senate’s Republican leadership is now in its seventh month of refusing to convene a hearing on Obama’s nomination of the veteran federal appeals court judge Merrick Garland to the current vacancy on the Supreme Court. But the GOP’s refusal to consider Obama’s judicial nominees goes much further than that.
      Even as unfilled judicial vacancies have more than doubled over the past two years, Senate Majority Leader Mitch McConnell has now all but shut down consideration of any of Obama’s judicial nominees. The 90 vacancies include 34 that are characterized as “judicial emergencies” based on caseload figures.
      The policy extends to noncontroversial judicial nominees for U.S. district courts even when supported by home-state Republican senators, according to Glenn Sugameli, who has been tracking federal court nominations since 2001 on a website now called Sugameli, who now works as a staff attorney for Defenders of Wildlife, calls the obstruction “unprecedented, unjustifiable, and harmful to businesses and individuals for whom justice delayed is justice denied.”
      McConnell announced the policy of refusing to consider Obama’s Supreme Court nominee on the very day of Justice Antonin Scalia’s death [Feb. 13] and reaffirmed it after Obama chose Garland for the seat a month later [March 16]. “The American people should have a voice in the selection of their next Supreme Court justice,” McConnell said. Senate Republicans have stuck to the policy despite accurate criticism from Obama, Senate Democrats, and many court watchers that it has no basis in the Constitution or historical practice.
      Sheldon Goldman, a political scientist at the University of Massachusetts-Amherst and a longtime expert on judicial nominations and confirmations, agrees that the broader inaction on Obama nominees has no historical precedent. The record of the current Senate over the past two years is “the worst in American history in terms of obstruction and delay.”
      Admittedly, tit for tat has been the name of the game in judicial politics as far back as the 1980s with Republican Ronald Reagan in the White House and Democrats controlling the Senate for most of the time. President George W. Bush included John G. Roberts Jr. in his first batch of 11 nominees for federal appeals courts in May 2001, but Roberts won confirmation in 2003 only after Republicans gained control of the Senate. All of the others also eventually won confirmation except Miguel Estrada, a Washington lawyer, whose nomination was filibustered by Senate Democrats while in the minority.
      McConnell defends the Senate’s current record by noting that the Senate has confirmed a few more Obama judges, 329 in all, than it did for Bush in his eight years: 326. Sugameli says the comparison is misleading because of the larger number of vacancies in the Obama years.
      Curt Levey, a conservative veteran of the judicial wars as president of the Committee for Justice, agrees with McConnell. “The bottom line is the total number of confirmations,” he says even as he acknowledges that statistics can be “isolated to show whatever you want.” Levey adds that Republicans may be exacting revenge for the Democrats’ decision in the previous Congress while in the majority to rule out the use of the filibuster on judicial nominations except for the Supreme Court.
      Qureshi’s nomination with only five months left in Obama’s second term would have been problematic even under normal circumstances. Senators from the opposition party often try to slow down action on judicial confirmations in the final months of a president’s term.
      Born in Pakistan, Qureshi graduated with honors from Cornell University and Harvard Law School after coming to the United States with his family. He now heads the global pro bono committee of the international law firm Latham & Watkins. In announcing his nomination for the federal district court in the District of Columbia, the White House made no mention of Qureshi’s religion, but his background promptly prompted divergent reactions, including anti-Muslim rants on conservative web sites.
      Muslim advocacy groups applauded the nomination. Farhana Khera, executive director of Muslim Advocates, called Qureshi “an exceptional nominee.” Qureshi twice worked pro bono on civil rights cases for the group. Nan Aron, president of the liberal Alliance for Justice, cited the nomination as further evidence of Obama’s practice of making diversity a “centerpiece” of his judicial appointments.
      From the opposite perspective, conservative web sites criticized the nomination. In posting the story on Twitter, Breitbart News added this as a tweet: “Pack it up, folks. Fun country while it lasted.” Mad World News reported that Qureshi has “an extensive record of prejudicially defending Muslim rights” — whatever the adverb may mean — and accused him of unspecified “links” to the Council on American Islamic Relations, the Islamic Society of North America, and Saudi government officials.
      Meanwhile, Garland’s supporters rallied this month in front of the Supreme Court urging the Senate to “do its job.” Unfortunately for the short-staffed federal courts, Garland is only one of the victims of the Senate’s Republican leadership’s decision to turn deaf ears to the plea.

Monday, September 12, 2016

For LGBT Rights Advocates, Much Work Lies Ahead

      Thurgood Marshall was elated and optimistic after the Supreme Court outlawed racial segregation in public schools in the landmark Brown v. Board of Education decision in 1954. “I was so happy I was numb,” he recalled later to historian Richard Kluger. On the day of the decision, Marshall confidently predicted that racial segregation in schools would be eliminated within five years and that all forms of racial discrimination would be outlawed by 1963, the 100th anniversary of the Emancipation Proclamation.
      Marshall’s optimism proved to be unfounded. School desegregation stalled for nearly a decade and schools were becoming more racially separate by the time of his death in 1993. The three landmark civil rights acts outlawing racial and other forms of discrimination in employment, voting, and housing had not been enacted by 1963, but over the next five years instead.
      LGBT rights advocates celebrating the Supreme Court’s decision a year ago guaranteeing marriage equality for same-sex couples were similarly thrilled with the victory, but some tempered their optimism. The National Gay and Lesbian Chamber of Commerce called on the LGBT movement that day to “harness this momentum to secure greater equality, especially nondiscrimination protections for LGBT Americans.”
      The scattered resistance to same-sex marriage has faded, except for the continuing calls for a religious liberty exemption for public officials, businesses, or individuals to refuse to provide services for gay or lesbian weddings. It is still legal in roughly half the states for a private employer to fire or refuse to hire an individual on the basis of sexual orientation or gender identity.
      Transgender rights advocates have gained new visibility but only because of controversial moves in Houston, North Carolina, and Virginia aimed at forcing transgender individuals to use public bathrooms that correspond to their biological sex instead of their gender identity.
      The unfinished work for LGBT rights advocates was one of the topics as LGBT journalists gathered in Miami’s South Beach this past weekend for the annual convention of their national organization, NLGJA. “They say we’re in a post-marriage equality, post-don’t ask, don’t tell world,” longtime activist Cathy Renna said as she opened a panel discussion under the title “Putting the ‘Move’ in Movement: a.k.a. Life After Marriage.” “Are we really?” Renna asked rhetorically.
      The consensus of the panelists could be summed up in one word: No. “It gets harder now,” remarked Nadine Smith, co-founder and CEO of Equality Florida. “We’ve got a lot of work to do.”
      Marriage equality emerged as the LGBT rights movement’s primary goal only as the eventual ruling suddenly seemed attainable within the past few years, sooner than almost anyone had anticipated as realistic. Even today, some in the LGBT community minimize the importance of the Supreme Court decision. “Marriage was not on my radar,” Khafre Abif, a community organizer with the Southern AIDS Coalition, remarked at the panel. “This was far from what black gay folk wanted.”
      Abif hopes to repeal the laws that criminalize the knowing transmission of HIV. He notes that there are no comparable laws against transmitting genital herpes and warns that the HIV laws perversely deter sexually active individuals from getting tested so that they can learn their status and take needed precautions.
      The Supreme Court’s marriage ruling in Obergefell v. Hodges built on two earlier decisions. The 1996 decision in Romer v. Evans limited the ability of state or local governments to exclude LGBT individuals from civil rights protections. Seven years later, the court in Lawrence v. Texas (2003) invalidated the few remaining state laws that made gay sex a prosecutable crime even if they were rarely enforced.
      In the meantime, LGBT rights advocates had been urging Congress to approve a bill, the Employment Nondiscrimination Act, to protect gay and lesbian individuals from job discrimination nationwide. The goal briefly seemed attainable in the mid-1990s, but has been dead ever since Republicans gained control of the House of Representatives. “The Equality Act cannot win,” Dominic Holden, who covers LGBT issues for BuzzFeed News, remarked at the panel, using the bill’s current working title.
      LGBT rights advocates have scored a few gains the past few years thanks to executive branch decisions by the Obama administration — for example, the executive order in April 2015 prohibiting anti-LGBT discrimination by federal contractors. More recently, the U.S. Department of Education has told school boards nationwide that transgender pupils should be allowed to use restrooms and locker facilities corresponding to their gender identity rather than their birth sex.
      The power of the bathroom backlash was seen in November 2015 when Houston voters repealed an LGBT rights ordinance and again in March when North Carolina’s Republican-controlled legislature passed a law known as H.B. 2 to nullify Charlotte’s local LGBT rights ordinance. “Does the LGBT movement have a strategy for dealing with this question?” Holden asked. “So far, the answer is no.”
      The issue is now at the Supreme Court, which is considering whether to hear an appeal by a local school board in Virginia in a school bathroom case challenging the Obama administration policy (Gloucester County School Board. v. G.G.). A federal judge in Texas has meanwhile ruled the policy unlawful, but the administration is appealing.
      Holden is watching the transgender cases with what appears to be guarded optimism, but on the whole he is downbeat on events since the marriage decision. “The big, bold LGBT movement riding high after marriage equality has been getting stopped in its tracks,” he remarked. But so too it appeared in the first years after Brown. Still, as Martin Luther King Jr. remarked, the arc of the moral universe bends, eventually, toward justice.