Sustained Outrage

Senate Judiciary Committee schedules hearings on nominees

This just in: the Senate Judiciary Committee announced today that 12 judicial nominees are on the agenda for the committee’s next business meeting on Nov. 18. It also scheduled a separate hearing for Nov. 17 that includes a panel of four judicial candidates who have not yet appeared before the committee.

Assuming the committee approves all 12 nominees on Thursday — and that’s a pretty big assumption — that would put the number of nominees for circuit courts awaiting full senate approval at 9 (for 20 vacancies) and for district courts at 25 (for 86 vacancies). Let’s not forget that 50 of those 106 vacancies have been declared judicial emergencies by the Administrative Office of the U.S. Courts.

Of course, there are no consent agreements on Friday’s Senate agenda, so no movement yet on actually confirming any of the pending nominees during the so-called lame-duck session before the 112th Congress takes office in January. The Alliance for Justice has urged the full Senate to take up the nominations that have passed out of the Judiciary Committee during the lame-duck session:

In addition to being desperately needed and largely uncontroversial, these nominees represent the hope of creating a federal judiciary that is representative of our nation’s demographic diversity. Thirteen of the pending nominees are people of color and 10 are women. Many would be historic “firsts” in their respective courts if confirmed to the bench.

Though these nominees have been awaiting votes for far too long, lame-duck sessions have frequently been an occasion when judicial nominees are approved. For instance, during the 2002 lame-duck session in a closely split Senate, President George W. Bush had 20 nominees confirmed, all but one on a voice vote, including controversial circuit court nominee Michael McConnell.

According to AFJ President Nan Aron, “These historic levels of obstruction have serious consequences for American courts. The Senate needs to put aside partisan rancor, perform the task the Constitution has assigned to it, and confirm these qualified, diverse judges to the federal bench. It would be an unforgiveable tragedy if obstructionism during the lame-duck Congress helped create a lame-duck judiciary.”

(AP Photo/Charles Dharapak)

Elections have consequences, politicians like to remind us, usually after a big win. Within that simple phrase lies an implicit threat to those who find themselves outside looking in at the corridors of power: You’re going to need to get used to a new way of doing business.

Last week’s election saw Republicans retake control of the U.S. House of Representatives, and although they made inroads in the Senate, Republicans fell short of achieving a 51-vote majority. Thanks in part to Joe Manchin’s victory in West Virginia, Democrats still hold 53 seats in the Senate (including two independents who caucus with the Dems).

So what effect will the election have on President Obama’s judicial nominees?

The short answer: Probably not much.

Democrats had already lost their 60-seat super majority that, at least in theory, enabled them to easily overcome any threat of a GOP filibuster. Over the past two years, Republicans have proved very adept at preventing nominees from getting up and down votes, as have Democrats in the past when they were in the minority.

Just before the election, President Obama once again made reconciliatory overtures at Congressional Republicans in his weekly address. Obama was specifically calling on leaders to focus on the economy as the main issue confronting Americans, but I think his remarks can apply as well to confirming nominees.

On these issues – issues that will determine our success or failure in this new century – I believe it’s the fundamental responsibility of all who hold elective office to seek out common ground.  It may not always be easy to find agreement; at times we’ll have legitimate philosophical differences.  And it may not always be the best politics.  But it is the right thing to do for our country.

That’s why I found the recent comments by the top two Republican in Congress so troubling.  The Republican leader of the House actually said that “this is not the time for compromise.”  And the Republican leader of the Senate said his main goal after this election is simply to win the next one.

I know that we’re in the final days of a campaign.  So it’s not surprising that we’re seeing this heated rhetoric.  That’s politics.  But when the ballots are cast and the voting is done, we need to put this kind of partisanship aside – win, lose, or draw.

In the end, it comes down to a simple choice.  We can spend the next two years arguing with one another, trapped in stale debates, mired in gridlock, unable to make progress in solving the serious problems facing our country.

A lot of people, including the Federal Bar Association, would put the more than 100 vacancies in the federal judiciary among the serious problems facing our country.

So would Bloomberg’s Ann Woolner, who wrote in a column published earlier this week that said that Republican gains in the Senate would make it easier for the GOP to block Obama’s nominees:

Pushing the judiciary rightward has been a staple of Republican campaigns for decades.

Part of the strategy, used by both parties, is to block judicial candidates named by a president of the opposite party. This became easier last week for Republicans, who were already doing quite well at it.

Republicans have managed to stall more than a score of President Obama’s nominees to the bench so far, although they number only 41 senators, barely enough to keep a filibuster going.

With six more Republican senators narrowing the gap in January, the minority party in the Senate will have more muscle to use against the president’s choices.

This matters a lot. Whether the issue is health care, immigration or regulation, federal judges will decide which provisions are constitutional and which ones must die.

Republicans have been loading the federal bench with as many conservatives as they can, while blocking as many Democratic nominees as possible.

Yes, I said Democratic nominees instead of liberal. The current list of 23 stalled Obama nominees includes 17 approved by the Senate Judiciary Committee without a whiff of controversy or even a no vote against them.

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WVDEP, WVDNR react to Chief Logan ruling

We did a quick blog post yesterday to let readers know about the state Supreme Court’s ruling that paves the way for oil and gas drilling in Chief Logan State Park.

There’s more in today’s Gazette, with a complete news story on this important decision.

But I also wanted to pass on reactions from the West Virginia Department of Environmental Protection, whose decision to block this drilling was overturned by the Supreme Court, and by the state Division of Natural Resources, whose ability to protect park lands could be hampered by this ruling.

WVDEP spokeswoman Kathy Cosco had this to say yesterday:

The DEP’s argument in this case was that the Secretary has the authority to rely on other agencies environmental statutes when determining the issuance of permits. The court did not speak to that issue in this ruling, so we believe that should a similar case come up in the future the agency can still exercise that authority.

And WVDNR spokesman Hoy Murphy said only this:

We are reviewing the court’s decision to determine what effect it may have on DNR’s statutory duties to protect state parks.

In addition, I asked Tom Susman, a spokesman for Cabot Oil and Gas and the Lawson Heirs, when the drilling is scheduled to begin, and this is what he told me:

They just got the ruling and are reviewing it. There are no timelines at this point.


Supreme Court paves way for Chief Logan drilling

The West Virginia state Supreme Court of Appeals has just issued an opinion that affirms a Logan Circuit Court decision paving the way for oil and gas drilling at Chief Logan State Park.

Justices ruled that a state law that bans such drilling does not apply, because it was enacted after a 1960 deed in which previous owners of the property preserved their mineral rights and the right to drill for oil and gas.

You can read the opinion here.

An avalanche of cash in judicial campaigns, Pt. 2

In a previous post, we looked at the vast amounts of cash poured into judicial campaigns, particularly races for seats on state Supreme Courts, and how many believe that money is undermining the judicial system.

On a macro level, well-organized and well-funded groups are spending millions and millions of dollars to help elect judges they believe will be either pro or con lawsuits filed against big businesses. But what about on a micro level?

As this report, The New Politics of Judicial Elections, 2000-2009: Decade of Change,  co-authored by JusticeatStake.org, The Brennan Center for Justice, The National Institute on Money in State Politics and Hofstra Law School points out, when a judicial candidate accepts a campaign contribution, that leaves him or her open to the allegation that the donor will receive — or at least expect — special treatment from the bench.

In West Virginia, judicial candidates cannot ethically solicit campaign contributions directly themselves. But that doesn’t mean that lawyers and businesses don’t hurry to open their wallets and checkbooks for candidates whom they hope will look upon their cases and causes favorably. And in very extreme cases, this might lead to their disqualification, but only in the most extreme cases.

So what’s a candidate to do?

The current race for state Supreme Court between Democratic incumbent Thomas McHugh and Republican challenger John Yoder, circuit judge in Berkeley, Jefferson and Morgan Counties, offers an interesting case study.

As campaign finance filings on the Secretary of State’s website show, McHugh has raised $289,326.09 as of Oct. 22. Yoder, by contrast, has raised $5,851.40. To date, McHugh has spent almost 40 times as much as Yoder.

Now, Yoder may pay dearly for his modest fundraising on election day — I really have no idea — but clearly he intends to insulate himself from any hint of a suggestion that he is beholden to any given campaign contributor.

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An avalanche of cash in judicial campaigns, Pt. 1

With the election just days away, I thought now might be a good time to revisit the topic of money and judicial campaigns. Right now, with control of the U.S. Senate and the House of Representatives at stake, most of the media’s focus is on the flood of third-party cash poured into the closest congressional races without the true source of the funding being divulged. (Thank you, U.S. Supreme Court, for Citizens United.)

But as this report, jointly produced by JusticeatStake.org, The Brennan Center for Justice, The National Institute on Money in State Politics and Hofstra Law School, documents how, over the last decade, the amount of money involved in judicial campaigns has exploded. And, as retired Justice Sandra Day O’Connor explains in her introductory letter, the glut of campaign cash has a potentially pernicious effect on the judicial system.

We all expect judges to be accountable to the law rather than political supporters or special interests. But elected judges in many states are compelled to solicit money for their election campaigns, sometimes from lawyers and parties appearing before them. Whether or not these contributions actually tilt the scales of justce, three out of every four Americans believe that campaign contributions affect courtroom decisions.

This crisis of confidence in the impartiality of the judiciary is real and growing. Left unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold.

We all have a stake in ensuring that courts remain fair, imparitial, and independent. If we fail to remember this, partisan infighting and hardball politics will erode the essential function of our judicial system as a safe place where every citizen stands equal before the law.

The report itself concluded that in the past 10 years, $206 million has been spent on state Supreme Court races alone. Here’s what that looks like, in two-year units:

And here’s that $206 million figure broken down by source of funds:

Where does West Virginia figure into all of this? Well, with a total population of 1.8 million, which ranks 37th in the nation, West Virginia ranked 10th in spending over the past ten years, with almost $9.6 million in total spending.

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U.S. Chamber of Commerce President Tom Donahue. AP photo.

The U.S. Chamber of Commerce doesn’t like lawsuits — unless it’s filing them.

That’s the bottom line from a new report issued today by the American Association for Justice,  the group formerly known as the Association of Trial Lawyers of America.

The report is called The Chamber Litigation Machine: How the Chamber Uses Lawsuits to Keep Americans Out of Court, and it concludes:

For years, the U.S. Chamber of Commerce has led the charge to undermine and destroy America’s civil justice system. The Chamber has spent hundreds of millions of dollars financing efforts to close the courthouse doors to American consumers through massive lobbying campaigns, advertising and bankrolling anti-consumer political candidates. It has its own multimillion dollar affiliate, the Institute for Legal Reform (ILR), whose sole mission is to restrict the ability of individuals harmed by negligent corporations to file suit.

Yet ironically, the Chamber is also one of the most aggressive litigators in Washington, D.C., appearing in hundreds of lawsuits a year. The Chamber has its own litigation arm, the National Chamber Litigation Center (NCLC), which both files its own lawsuits and enters into the lawsuits of others more than 130 times a year.

The Chamber spends an unrivaled amount of money lobbying to restrict access to the courts for ordinary Americans, then files copious lawsuits and briefs in defense of the likes of AIG, Wal-Mart, Firestone and a slew of pharmaceutical and insurance companies.

In almost every case, the Chamber’s litigation on behalf of corporations has come at the expense of Americans’ health or financial security.

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Why judicial nominees don’t get votes

With Congress in recess until after the Nov. 2 election, there won’t be any movement on confirming any federal judges for a while, unless President Obama considers recess appointments, which is probably fight he doesn’t want to pick. (Presumably, he has enough headaches already.)

But I wanted to point out two very informative pieces by Jack Betts of the Charlotte Observer, which provide a terrific window into the tactics being used to slow the pace of confirmations to a crawl, and the effect on the federal judiciary. The use of secret holds to block nominees has “crippled the administration of justice in courts across the land,” Betts wrote. “Political intransigence on one side or the other has delayed the consideration of badly needed judges for many years, in this state and elsewhere.”

The Oct. 2 column, titled “Senate’s Judicial Graveyard,” continues:

You can argue all evening over which party is worse about it or where it began, but the fact is that both the Democrats and the Republicans bear responsibility for the failure of the Senate even to act on some judgeships, let alone reject them. For years it kept North Carolinians off the 4th U.S. Circuit Court of Appeals, even though this state is the largest of the five states in the 4th Circuit. It’s an important court, handling something like 99 percent of the federal appeals that come from North Carolina, South Carolina, Virginia, Maryland and West Virginia. In 208 years, the state had had only seven judges on the court.

Political rivalries and petty payback kept N.C. judges off that court and out of N.C.’s federal courtrooms, too. But this time, it’s not only politics. It’s pigheadedness.

Let’s look at the 16-year-old history of this sorry episode: In 1994, 4th Circuit Judge Dickson Phillips went on senior status, and President Bill Clinton nominated U.S. District Court Judge Jim Beaty of Charlotte for the vacancy in 1995. But then-Sen. Jesse Helms, no doubt peeved because Democrats had blocked one of his nominees for a judgeship, sat on the Beaty nomination. The 4th Circuit court didn’t need any more judges, Helms said.

This back-and-forth prevailed for years. When Democrat John Edwards was elected to the Senate in 1998, he blocked Helms’ nominees, and Helms blocked Edwards’ nominees for judgeships. One encouraging note of bipartisanship came after Helms left the Senate, and Edwards and Republican Sen. Elizabeth Dole backed Allyson Duncan for the 4th Circuit and she was confirmed.

But when Republican Sen. Richard Burr joined Dole in the Senate, their nominees for the 4th Circuit – District Judges Terrence Boyle and Robert Conrad – were blocked. Boyle’s nomination was controversial, but both he and Conrad deserved a Senate vote one way or the other. They didn’t get it. That was the Democrats’ failure, a childish, obstinate refusal to vote on two experienced judges who are regarded as tough but fair jurists.

When Barack Obama became president, this much changed: The state’s two senators, incumbent Republican Burr and newly elected Democrat Kay Hagan, backed both of the president’s N.C. nominees for the 4th Circuit. They were N.C. Court of Appeals Judge Jim Wynn (who had been blocked by Helms when President Clinton nominated him in 1999) and N.C. Superior Court Judge Albert Diaz. Wynn, a Navy veteran, was approved by the Senate Judiciary Committee overwhelmingly. Diaz, a Marine Corps veteran who specializes in business cases, was unanimously approved.

But for months their nominations swung slowly in the wind. Democrats asked for unanimous consent in the Senate to move on the noncontroversial nominations. Republicans were disinclined to agree to that, suggesting that Democrats schedule a vote as part of the normal debate process, which takes a lot longer. That resistance was part of a slowdown on judicial consideration that Republicans in the Senate quietly imposed – perhaps in hopes of stalling Democratic nominations in case they win the Senate after the midterm elections Nov. 2.

In a follow-up post on his blog on Monday,  Betts answered a question that many, myself included, have wondered as many of the president’s nominees have languished on the Senate’s agenda without getting votes: Why don’t the Democrats use their substantial majority to push the nominees through? Why doesn’t Senate Majority Leader Harry Reid (D-Nev.) simply override the threat of a filibuster and schedule votes for nominees at his discretion?

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Stats on stalking

October is Domestic Violence Awareness Month, and our good friends over at the West Virginia Coalition Against Domestic Violence have a statewide calendar of events posted here. On Monday, WVCADV team leaders Sue Julian and Tonia Thomas presented Gov. Joe Manchin with a purple tie as he designated October Domestic Violence Awareness Month in West Virginia.

Having recently covered a case that involved stalking, I thought I’d post a link to this fact sheet produced by the Stalking Resource Center. Here are a few of the figures that really jump off the page:

3.4 million Americans are stalked each year, 75 percent by someone they know.

One in nine stalking victims was stalked for more than five years.

Stalking is going high-tech. One in four victims said they were stalked via technology like e-mail or instant messaging, while one in 10 said they had been tracked using a GPS system and one in 12 said they had been monitored via a video or digital camera or a listening device.

Three out of four women who were murdered by an intimate partner were also stalked.

KBR update: W.Va. National Guard case pending in Texas

As a follow up to my last post about the deal between KBR and the Pentagon regarding the contractor’s liability stemming from Project RIO, or Restore Iraqi Oil, in which American and British soldiers and civilians were exposed to the toxic chemical sodium dichromate, I wanted to update the status of the lawsuits filed by West Virginia National Guardsmen.

While the cases were dismissed in August in federal court in West Virginia, the members of the West Virginia National Guard’s 1092nd Engineer Battalion have joined pending litigation in Texas (where KBR is headquartered) alongside members of the Indiana National Guard and the Royal Air Force’s Ground Regiment Gunners.

I’ve posted a copy of the lawsuit, provided by state Sen. Jeff Kessler, who represents a bunch of the West Virginia guardsmen, here. KBR’s general response to allegations relating to Qarmat Ali can be found here.

Here’s an excerpt from the lawsuit:

As stated by Lieutenant Colonel James Gentry, commanding officer of the Tell City, Indiana Guardsmen at Qarmat Ali, before his untimely death:

“I understand and accept there’s danger with my line of service, in my line of service. What’s very difficult for me to accept is if I’m working for KBR and they have knowledge of hazardous chemicals on the ground that can cause cancer and not share that knowledge, then that is putting my men at risk that is not necessary. I’m very upset over this . . . I feel like they should be ashamed that they did that.”