Tracking the latest developments in the fight for a fair America
At Wednesday’s Senate Judiciary Committee hearing, Republican Senator Jeff Sessions provided a model lesson in why there is so little professional diversity among our federal judges. Turning to District of Maryland nominee Paula Xinis, Sessions unleashed a line of accusatory questions suggesting that Xinis’ career as a public defender and civil rights lawyer showed an “agenda” that she would invariably “bring to the bench.” The questions were absurd and unfounded, but they could not be dismissed as such. Instead, Xinis had to patiently explain that protecting the rights of America’s most vulnerable and disenfranchised had not left her tainted with disqualifying bias.
Unfortunately, such questions are not unusual, and Jeff Sessions is not alone in asking them—rather,
they illustrate a systemic problem with the current process of judicial selection and the deeply entrenched presumptions attached to certain legal careers.
Public defenders and civil rights lawyers (as well as plaintiffs’ lawyers generally) are dramatically underrepresented among federal judges. Just 14 percent of President Obama’s judicial nominees have been public defenders, while about 41 percent have been prosecutors. Likewise, only 3.2 percent of nominees have worked as civil rights lawyers, while 72 percent have been corporate attorneys. Xinis’ nomination reflects continued improvement—already in 2015 the president has nominated four public defenders (out of 12 total nominations), and Rhode Island’s senators recently recommended a potential fifth public defender for nomination—yet the wide disparity remains.
Beyond specific categories of law practice, these numbers reveal a broader truth: our federal courts are staffed largely with judges who, in their legal careers before taking the bench, represented only the most powerful in American society, either defending massive corporations or wielding the enormous power of the state against criminal defendants. Only a small minority of judges have experience representing indigent defendants or other low-income clients, the very people who depend most on our courts to provide equal justice.
In part, this is due to the mistaken but rarely questioned notion that lawyering to preserve influence and privilege—to cement rather than challenge the status quo through legal practice—is somehow impartial and cannot possibly come to bear in judicial decisionmaking. In a recent panel discussion led by Alliance for Justice, D.C. Circuit Judge Nina Pillard noted how “[t]here’s a sense, somehow, in the process of finding judges or candidates, that being in a large corporate law firm is neutral and being an advocate for people who have been subject to discrimination or retaliation or repression of their speech or their religious beliefs is not neutral, and . . . I would question that.”
This skewed sense of what’s “neutral” emerged during Senator Sessions’ questioning of Paula Xinis. Sessions felt compelled to verify that someone with Xinis’ professional background—which also includes time as a complaint examiner in D.C.’s Office of Police Complaints—would not be biased against police officers. After asking whether “police have a responsibility to try to maintain an orderly and safe environment for the people who live in a city,” and whether a judge “should show empathy for the difficulties that police officers face as well as” for those who allege that police have violated their civil rights, Sessions closed with this:
Can you assure the police officers in Baltimore and all over Maryland that might be brought before your court that they’ll get a fair day in court, and that your history would not impact your decisionmaking? And I raise that particularly because I see your firm is representing Mr. Freddie Gray in that case that’s gathered so much attention in Maryland, and there’s lots of law enforcement officers throughout the state and they want to know that they don’t have someone who has an agenda to bring to the bench—can you assure them that you won’t bring that to the bench?
The implication is clear: if you defend people against criminal prosecutions, and especially if you represent people in civil rights cases against police, there is a presumption of bias that you must rebut before the Judiciary Committee. One wonders whether Sessions has asked a prosecutor if she would bring to her judicial role an “agenda” against indigent criminal defendants. Or if a corporate defense lawyer would be biased against employees who allege unlawful discrimination or unpaid wages. I doubt very much that he has.
The depth of this double-standard is underscored by Sessions’ invoking Freddie Gray in particular. Gray, of course, was fatally injured in Baltimore police custody after being arrested without cause. His death led to grand jury indictments for six officers on homicide and assault charges, and the Department of Justice opened a civil rights investigation. Under these circumstances, representing Gray’s family hardly seems like an act of radical subversion that would call into question one’s ability to fairly and impartially apply the law. But in Sessions’ view, any challenge to police authority, even in a case as egregious as Freddie Gray’s, can be done only in pursuit of some extra-legal “agenda.”
Professional diversity in the judiciary matters. Judge Pillard called it “a deficit in our courts” that “we haven’t had [judges] who’ve represented less well-to-do, less institutionally-established clients[.]” And the point isn’t that one kind of lawyer is neutral and impartial while another kind of lawyer is not. Nor is it that corporate lawyers are necessarily bad judges and public defenders are necessarily good. It’s that all judges, regardless of background, are shaped by the perspectives and experiences acquired over many years in the law. Fair and equal courts require a diversity of these perspectives, not any one in particular, and this week’s hearing reminds us of how hard that is to achieve.
But this much is clear: the problem is much bigger than Senator Sessions, and solving it requires everyone involved in judicial selection and who cares about the courts to talk openly about and promote the value of professional diversity.
Earlier this week, the Department of Defense announced it will be expanding the Military Lending Act to cap interest rates and prohibit forced arbitration in credit cards, payday loans, vehicle title loans, refund anticipation loans, and other types of loans made to service members. A previous rule had been riddled with loopholes that allowed lenders to charge exorbitant fees and avoid the arbitration ban. The expansion is an important step toward protecting troops who are often targeted by predatory lenders before being deployed.
The news comes as the Consumer Financial Protection Bureau (CFPB) moves toward rulemaking of its own on forced arbitration. On Wednesday of last week, CFPB Director Richard Cordray confirmed the agency would soon be announcing a rule on the use of forced arbitration in financial products for all American consumers.
The decision follows two studies conducted by the agency that demonstrated the prevalence of forced arbitration and the harm it causes. Tens of millions of consumers use products under the CFPB’s jurisdiction that contain forced arbitration clauses. For some products, including payday loans and cell phones, nearly every contract signed by a consumer has an arbitration clause in it. Yet most consumers mistakenly believed they could still sue their employer in court or join others in such a suit. Once in arbitration, the report found that businesses won 93 percent of their claims and counterclaims.
Industry groups and congressional Republicans have already begun to fight back. An amendment to the Financial Services Appropriations Bill would require the CFPB to conduct yet another, duplicative study—at taxpayer expense—before beginning the rulemaking process. And in a transparent attempt to create further delay, the American Bankers Association, the Consumer Bankers Association, and The Financial Services Roundtable made similar demands in a recent letter to the CFPB.
Yet these efforts have not been enough to stall our momentum. The CFPB has confirmed its intention to initiate the rulemaking process despite industry objections, and for now the financial services bill has stalled on the House floor. More than three years after the CFPB began work on its arbitration study, meaningful change is finally on its way.
This month marks the five year anniversary of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which gives the CFPB its authority to ban forced arbitration clauses in the financial industry, and the four year anniversary of the CFPB itself. On these important birthdays, recent efforts to curtail forced arbitration provide reason to celebrate—but there is more work to be done. Industry opposition will continue. The rulemaking process, once underway, will be contentious. And AFJ will be there fighting every step of the way.
There is no doubt the state of Texas is at the epicenter of what is a growing judicial vacancy crisis. It has the most judicial vacancies of any state in the country (nine, all without a nominee), a quarter of the nation’s judicial emergencies, and some of the longest-standing vacancies in the judiciary. Former Southern District of Texas Judge Janis Graham Jack’s seat has been vacant for over four years. Former Fifth Circuit Judge Emilio M. Garza’s vacant Texas seat is fast approaching its third anniversary.
Yet, despite this dire situation, Senator John Cornyn, R-Texas, wrote in a recent letter to the editor that he had been “working . . . to fill openings as they arise,” pointing to the confirmation of 12 Texas judges in the past six years of President Obama’s administration.
While we commend Senator Cornyn for working with the president to find 12 qualified judges, that hasn’t been nearly enough to keep pace with the growing number of vacancies in the state. As we have noted many, many times, confirmation totals are meaningless unless considered beside the number of vacancies that need to be filled. There is no magic number of confirmations that is “enough”—empty benches need judges.
And far from “filling openings as they arise,” the senator’s sluggish pace on nominations and confirmations has allowed Texas vacancies to amass. As we detail in our report on Texas, Senators Cornyn and Ted Cruz, R-Texas, have refused to screen candidates for seats they know will soon be vacant, waiting instead until the judge leaves office with no one to take on their workloads. Several judges—to no avail—have given the senators a year’s notice of their intent to retire and urged them to start seeking a replacement immediately. This inefficient approach only allows current vacancies to languish and new retirements to pile up.
The nine vacant Texas seats have now sat empty for a combined 13 years. If Senator Cornyn is serious about finding “high-caliber legal minds” for the bench, there are plenty of places to start. Rather than focus on what he’s accomplished, it’s time to look at what’s left to do.
And a Supreme Court decision is likely to help keep it that way
Recent lawsuits have revealed incredible stories of malfeasance, indifference, and incompetence. In one case, an inmate with a bump the size of a tennis ball on his arm, began going numb and twitching uncontrollably. He soon felt “his intestines escaping from his rectum.” A prison nurse gave him Tylenol and used K-Y Jelly to push his intestines back in, and then sent him to his cell. Hours later, doctors at a local hospital diagnosed him with an abscess which was compressing his spine. In another case, an inmate suffering from diabetes spent nearly a week in a cell without food, water, or his insulin. He died shortly after. The two largest prison healthcare providers have been sued over 1,750 times in the past five years.
But just as worrisome is the number of lawsuits which were never brought.
A report produced by Alliance for Justice earlier this year describes the labyrinth inmates must navigate in order to sue prison officials for medical malpractice and other constitutional violations—and how a misstep could lock them out of the courthouse doors forever. Under the Prison Litigation Reform Act (PLRA), enacted in 1996 to “solve” the non-existent problem of runaway frivolous litigation, inmates essentially lose the ability to sue in civil courts once they have had three previous civil cases “dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted” (the so-called “three-strikes” rule).
In the two decades since its passage, federal courts have expanded nearly every aspect of the PLRA. Many courts give multiple “strikes” in a single case, strikes for procedural missteps, strikes in cases that go to trial, and even strikes in cases where the inmate wins a settlement. The Supreme Court exacerbated the problem this term by even further expanding the three-strikes rule in Coleman-Bey v. Tolefson.
The law leaves victims of medical malpractice in prison with a difficult choice: sue the prison and risk losing and never being able to sue for prison misconduct again, or continue to suffer in silence. Many already have the choice made for them. For those with three strikes, there’s virtually no judicial recourse available at all.
The PLRA was passed because lawmakers believed too many inmates were suing. But as the new report from CJ&D suggests, maybe the real problem was too many prisons deserved to be sued.
The Senate confirmed its first appeals court judge of the year last night, unanimously approving Kara Farnandez Stoll for a seat on the U.S. Court of Appeals for the Federal Circuit. Stoll waited more than two months on the Senate floor for a vote, enduring needless delay that has become the norm under Republican leadership. More than six months into 2015, the Senate has confirmed only five judges, and four of them were district court nominees selected and recommended by their own Republican senators. By comparison, during the penultimate year of President George W. Bush’s administration in 2007, Senate Democrats had confirmed 25 judges by July 9.
In floor speeches before the vote yesterday, Senate Democrats hammered Republicans for the confirmation slowdown. Minority Leader Harry Reid said that confirming only one circuit court nominee so far is an “embarrassment,” and accused Senate Republicans of “failing in their basic constitutional responsibility to provide advise and consent” on judges. “The Republican Leader [Mitch McConnell] and his party are on pace to confirm the fewest judicial nominations in half a century,” Reid noted. It’s actually even worse: the Senate hasn’t confirmed 10 or fewer judges since 1953.
In response, Judiciary Committee Chairman Chuck Grassley lamely defended the pace of confirmations in written remarks, asserting that “there shouldn’t be any complaining about following the same standard we did in 2007.” Grassley supported his view with three well-worn talking points that do not survive even the most cursory review. Yet they are worth refuting here, if only because they are commonly given to reporters covering Senate confirmations. It’s time to set the record straight once and for all.
Let’s take each point in turn.
- Grassley’s first argument is based on a meaningless comparison of raw confirmation totals. He pointed out that President Obama has had 312 judges confirmed, while at this same point in 2007 President Bush had only 279. “That’s 33 more judicial nominees confirmed” for Obama, Grassley said, “[s]o, this president and his judicial nominees are being treated as fairly, if not more fairly, than the last president.” The problem is that Obama’s higher confirmations are explained by the higher number of judicial vacancies he has had to fill, not by preferential treatment in the Senate. At this point in their respective presidencies, Obama has faced 47 more vacancies than did Bush, which means that, with only 33 more confirmed, Obama’s confirmations are actually falling behind.
- Next, Grassley defended his own work as chairman, saying “[w]e’re . . . moving judicial nominees in [the Judiciary] Committee at about the same pace as we did at this point in President Bush’s presidency.” On this point, Grassley’s sleight of hand is to include both executive and judicial nominees in his numbers. But when the focus is on judges, a discrepancy appears: only 13 judicial nominees have had hearings so far this year, while at this point in 2007 Democratic Chairman Patrick Leahy had convened hearings for 17 nominees. And lest anyone think the committee has been overly burdened with executive nominees, recall that Grassley has gone weeks without a confirmation hearing, and in one instance called a hearing with only two judicial nominees on the witness list.
- Third, Grassley invoked his own fuzzy math argument, claiming credit for the 11 district court judges that Senate Democrats voted out of committee and confirmed during the lame duck session at the end of last year. He claims that, per Senate tradition, these nominees should have been held for confirmation votes under the new Senate majority. He again pointed to confirmations in 2007: “In 2006, the Senate returned 13 judicial nominees to the President. Those nominees were then re-nominated in 2007, and confirmed in the new Congress. Had Democrats followed standard Senate practice, we would’ve voted on those 11 nominees at the beginning of this year[.]”
But what Grassley refers to as “standard Senate practice” was in fact nothing more than the obstruction of a single Republican senator. At the end of 2006, Republican Senator Sam Brownback blocked a vote on district court nominee Janet Neff because she once attended, as a guest of longtime neighbors, a same-sex civil commitment ceremony. As The New York Times reported at the time, Brownback’s objection, not “Senate practice,” was the only reason nominees were returned to the president: “Judge Neff’s nomination was included in a package of more than a dozen nominees whose confirmation had been agreed upon by both Democrats and Republicans. Mr. Brownback’s objections held up the whole roster of nominees.”
And that’s it. These are the best reasons Republicans can muster to explain why, under their watch, judicial confirmations are headed toward historical lows. It’s obvious that Senate Republicans are intentionally keeping our federal courts understaffed, delaying justice for Americans all across the country, to preserve as many vacancies as possible for what they hope is a future Republican president. Their talking points to the contrary are mere pretext to disguise a purely partisan agenda, and they should be called on it.