Two-tiered justice

On the recent Stanford rape case, I think Scott Lemieux makes a valuable point that helps clarify something I've been struggling with: does asking for a stronger sentence for a privileged person who has gotten off lightly undermine the broader push to make the U.S. criminal justice system less punitive?

Lemieux argues that it doesn't. Indeed, he suggests that the two are complementary goals: If you hold privileged (read: white and rich) defendants to the same standards the you hold underprivileged ones, people with power won't be able to ignore how draconian the system is and push to change it, instead of being able to close their eyes to it because those close to them escape its clutches. Think about the differences in the ways we've treated the opioid addiction problem and cocaine (abused broadly by middle and upper-class whites) in comparison to the way we treated the meth, heroin and crack problems (used disproportionately by the poor and/or minorities).

Finally, good on the survivor for her statement to the court and defendant during the sentencing. I have much respect for her.

GOP's near-total blockade on Obama's appointments continues -- but you can help a bit

While we were all focused on the primary elections on Tuesday, something interesting happened on the Senate floor when Democrats made a conscious, polite and ultimately futile effort to get a few judges confirmed.

Hawaii Senator Mazie Hirono (D-Hawaii) asked for unanimous consent to vote on Obama's eleven district court nominees that have been approved by the Senate Judiciary Committee -- without objection -- and have been awaiting the action of the full Senate (see the full Senate Calendar here).

Sen. Majority leader Mitch McConnell (R-Kentucky)  objected to the request.

Then Chuck Schumer (D- New York) asked for unanimous consent to vote on the seven that have been approved by Judiciary -- again without opposition -- and have been waiting on the floor since November 5. 

McConnell again objected.

Then Ben Cardin (D - Maryland) said, OK, could we vote on the four that have been  waiting on the floor since  October 29 -- six months ago. Those are

Paula Xinis, District of Maryland,
Brian R. Martinotti, District of New Jersey, 
Robert F. Rossiter, Jr., District of Nebraska,
Edward L. Stanton III, Western District of Tennessee

John Cornyn (R-Texas) objected.

Finally,  Cardin said, could we maybe just vote on the Xinis nomination, since she was approved by Judiciary in September, no one has raised any opposition to her and she has been awaiting floor action for seven months?

Cornyn objected again.

We all know about the near complete refusal of Senate Republicans to even meet with, let alone hold hearings for, vote on or even, gasp, approve President Obama's Supreme Court nominee Merrick Garland. 

But we can't forget about the rest of these nominations either that are facing nearly a complete blockade by Republicans. In addition to the eleven awaiting floor action, 41 nominees are awaiting action in the Judiciary Committee.

In the 2015-2016 Congress to this point, the GOP-controlled Senate has only confirmed two circuit court appointments and fifteen district court judges.

For comparison, in the 2007-2008 Congress through April 30, the Democratic-controlled Senate had confirmed seven of George W. Bush's circuit court nominees and 38 of his district court nominees.

And in 2013-2014, by April 30, the Democratic controlled Senate had confirmed fifteen nominations to the circuit courts and 54 to the district courts.

It's reasonable that the GOP wants to scrutinize Obama's appointments a bit more (and even reject a few),  but these 11 judges have had been scrutinized. They've been waiting for confirmation between seven and 14 months.  They have all cleared a GOP-controlled Judiciary committee by voice vote. There is no opposition -- reasonable or otherwise -- to giving them their commissions. This is only about delay.

These are judges that are uncontroversial and needed to help the government perform their basic functions. Unlike Garland, they don't represent huge ideological stakes in themselves, so a bit of pressure might get the Republicans to let a few go.

Consider calling your state's Senators, especially if they are Republicans -- and especially if you're from Texas and have Cornyn as your Senator. (Don't e-mail, that's useless). Here's a list of numbers for their Washington offices. State your name, and give  a brief, polite (don't be a jerk) message asking them to hold a vote on the 11 district court nominees that await floor action.

The 11, including their numbers on the executive calendar are:

#307 Paula Xinis, District of Maryland,
#357 Brian R. Martinotti, District of New Jersey, 
#358 Robert F. Rossiter, Jr., District of Nebraska,
#359 Edward L. Stanton III, Western District of Tennessee
#362 Julien Xavier Neals, District of New Jersey
#363 Gary Richard Brown, Eastern District of New York
#364 Mark A. Young, Central District of California
#459 Marilyn Jean Horan, Western District of Pennsylvania,
#460 Susan Paradise Baxter, Western District of Pennsylvania,
#461 Mary S. McElroy, District of Rhode Island
#508 Clare E. Connors, District of Hawaii

If Dems get a chance to confirm Garland in the lame duck session, they should take it

Merrick Garland

At last Thursday's Democratic debate, moderators asked Democratic presidential candidates Hillary Clinton and Bernie Sanders a question from NY Daily News reader Hannah Green regarding Obama's nomination of Merrick Garland to the Supreme Court vacancy left by the death of Antonin Scalia.

Hannah Green (ph) wants to know your position, Secretary Clinton, regarding President Obama's nomination of Merrick Gaarland to the Supreme m Court. President Obama said earlier this week that he would not withdraw the nomination, even after the presidential election. If elected, would you ask the president to withdraw the nomination?

Both Clinton and Sanders said that the currently support the nomination and strongly denounced Sen. Republicans for obstructing Garland's appointment. But they differed on whether they would ask Obama to withdraw the nomination if they were elected president: 

Clinton indicated acceptance of Obama's pick:

I am not going to contradict the president's strategy on this. And I'm not going to engage in hypotheticals. I fully support the president.

Sanders said he would ask Obama to withdraw the nomination:

...obviously I will strongly support that nomination as a member of the Senate. But, if elected president, I would ask the president to withdraw that nomination because.... I think that we need a Supreme Court justice who will make it crystal clear, and this nominee has not yet done that, crystal clear that he or she will vote to overturn Citizens United and make sure that American democracy is not undermined.  

(Debate transcript from CNN.)
I want to be careful about extrapolating inaccurate meanings from their words, but it seems that Clinton is indicating that she'd be open to having Garland confirmed to the court in a lame duck session if Democrats retain the presidency and retake the Senate. Sanders, on the other hand, would want to wait to get a better judge (meaning younger, more liberal and perhaps non-white or female.)

I agree with Clinton.  I think the costs of passing up a chance to get Garland on the bench are greater than the gains of holding out for some one potentially better (in the admittedly extremely low chance that Garland ever actually gets a vote).  Hit the jump for my reasoning.

Don't forget about Obama's other stalled federal court nominees

Much of the coverage of the federal courts over the last several weeks has rightly focused President Obama's nomination of D.C. Circuit Judge Merrick Garland to fill the Supreme Court vacancy, and the complete refusal of Republican Senators to even pretend to consider him.

But we can't forget about the other court vacancies that exist. As of last month, there are 62 district court vacancies and nine vacancies on the Courts of Appeals.

Sen. Majority leader Mitch McConnell speaks about 

President Obama's nomination of Merrick Garland 

to the Supreme Court.

Obama currently has nominees waiting for 34 of those district court slots and seven of the Circuit Courts.

But Sen. Majority leader and Mitch McConnell and his fellow Republicans will likely drag those nominees out.  In 2015, the Senate confirmed one circuit judge and 10 district court judges. 

In 2007, under an incoming Democratic Senate, George W. Bush was able to get six circuit court justices and 34 district judges appointed.

And during 2014 the Democratic-controlled Senate confirmed 12 circuit court judges and 76 district nominees.

(Gee, holding the Senate in the 2014 elections would have been nice, wouldn't it?)

So far this year they have managed to confirm one circuit judge and four district judges -- all of whom were ready for votes last November.

Now with the Garland nomination taking up a lot of bandwidth, it's possible the McConnell and Judiciary Chuck Grassley can use it to claim that they don't have time to process any lower-level judges.

Progressive activists can't let that happen. We should highlight the near total blockade ongoing in the Senate of Obama judicial appointees alongside our demands for Garland.

Eleven district court nominees have cleared the judiciary committee and await action on the Senate floor. None of them are controversial and all sailed out of committee by voice vote. Waverly Crenshaw of Tennessee's nomination has been waiting on the Senate floor since last July. McConnell could have a vote on him and the other 10 all during the next Senate session and every one of them could be on the job next week, actually, you know, providing justice.

Most of the other district (and likely most of the Circuit judges) are completely uncontroversial as well and would sail through, but Grassley is slow walking them.

I'm not suggesting that we should sacrifice a Supreme Court nominee for district or even circuit judges. However, loudly and continuously reminding the GOP that we haven't forgotten about Obama's other judicial nominees alongside our complaints about the disgraceful treatment of Garland is useful. It might even provide enough political fiber to persuade McConnell to release some district judges and perhaps a few circuit court judges to appease the vulnerable members of his caucus and provide a fig-leaf to rebut charges of total obstruction.

It's small ball, but every Obama appointee that goes through eases delays of justice, makes government work more effectively and likely will help protect Obama's legacy well into the future.

Obamacare is about People, not States

On January 30, Ezra Klein posted an insightful Vox piece about one of the great ironies of the Affordable Care Act.  After a lot of thought of my own, however, I don’t think it’s much of an irony at all. 

Klein’s analysis noted that the original ACA – supported heavily by Democrats – featured a massive redistribution of wealth from Blue States to Red States.  The people helped by Obamacare’s Medicaid expansion and exchange subsidies were disproportionately concentrated in the states of the ex-Confederacy that had low-wage economies with skimpy existing Medicaid programs. (An old joke in Mississippi claims that you have to be legally dead to qualify).

The irony that Klein points out has been that Republicans are fighting tooth and nail to turn the ACA into a program that drains money from Red states and transfers it to Blue States. When the Supreme Court held that the Medicaid Expansion had to be optional for states, many states dominated by Republicans declined the expansion while Blue States snapped it up, shifting the benefits flow from Red States to Blue States If the Supremes decide the case of King vs. Burwell in favor of the forces of darkness, it will declare subsidies on exchange marketplaces illegal – but only in the states on the federal exchange, which of course are disproportionately Red States. As a result, higher earners in Texas will be sending their increased Medicare taxes to poor and working-class people in states like New York and California while their own states lose out.

It’s an interesting puzzle, but I think it can be explained quite easily – at least on the liberal side of the equation – by changing our unit of analysis. Klein looks at states, but I think it makes more sense to look at people to explain this paradox. On some issues, perhaps it makes sense to look at issues as state vs. state.  If a major manufacturer decides to leave one state and move to a second, for example then pretty clearly the second state is better off relative to the first. Politicians will act accordingly and line up state against state.  

But the motivating purpose behind the Affordable Care Act wasn’t about New York vs. Texas, it was about 48 million people in the United States who didn’t have health insurance. Ohio Senator Sherrod Brown didn’t refuse to take federal health insurance because Florida got more Medicaid dollars than Ohio, but rather in solidarity with millions of Floridians and Ohioans who didn’t have access to health care at all. If Mississippi took $14.5 billion in federal money over the next decade to expand Medicaid, I wouldn’t be mad that that money wasn’t going to Pennsylvania, my latest state of residence; I’d be celebrating because 169,000 of my fellow citizens got access to health care.

On the flip side, the logic is perhaps more difficult to explain for a Red State GOP governor like Rick Perry or Mississippi’s Phil Bryant. There’s the potential that they just don’t understand it. Perry recently suggested that millions of Texans liked not having insurance, which may represent a weak dodge or actual ignorance of reality. But there’s also the possibility it’s about people for them too – specifically “those people” who are poor and likely have a darker hue of skin and are viewed as undeserving of federal benefits. Politicians used to be able to wrangle earmarks and pork for their state , which reduces the role of ideology, but ideological sorting and polarization has been getting stronger over the last 40 years. As a result, politicians who rely on bringing home federal dollars to get votes find themselves facing tough primaries – like the one Thad Cochran barely survived in Mississippi in 2014.

We can solve Klein’s puzzle then by re-imagining the pieces. It’ not about cash flows to states, it’s about people – and whether a state official’s ideological blinkers permit those without access to health care to be seen as human beings deserving of compassion or dignity.

Boggs hearings represent mere hiccup -- Obama judge picks continue confirmation surge

There’s been a lot of frustration among Progressives over Republican senators continuing to block Obama judicial picks in committee thanks to the blue slip method.  The latest manifestation of the frustration comes with the nomination of Michael Boggs, a Republican-backed candidate nominated as part of a deal to fill several slots on federal bench in Georgia (In return for nominating Boggs and two other district appointments, Georgia’s Republican Senators agreed to allow the nomination of Jill Pryor to move forward for the 11th Circuit Court seat and Leigh Martin May for a district judge seat.)

Progressives' frustration is understandable – as a state judge and legislator Boggs has defended voter identification laws, displaying the Confederate flag and opposed gay rights. However, Democrats should also keep their eyes on the forest through the trees: with the elimination of the filibuster for most executive nominations last November, judicial confirmations have drastically increased.

How much?  In 2014, the Senate has confirmed 40 judges thus far – 33 in the district courts and seven in the appellate courts. During the first five years of Obama’s presidency, the previous high number of judges confirmed through the end of May was 24 (in 2011 and 2012).  That translates into an increase of 67 percent in the number of judicial confirmations. Oh – and we’ve still got another week of Senate business to go in May. 

In addition, the vacancy rate is also starting to decline noticeably on the federal bench.  At the beginning of December, just after the Senate eliminated the filibuster, there were 86 vacancies on the district and circuit courts. That number increased on February 1 to 96 openings – likely because GOP obstruction forced Obama to resubmit every nomination, forcing a fresh round of committee hearings. However, by the beginning of March, the number of vacancies was beginning to fall and has continued to decline ever since. By May 20, the number of vacancies had declined to 67, a decrease of 30 percent from its February high (See figure).

Again, this happening doesn’t mean that everything is rosy.  In some states dominated by conservatives, the process is slow (like in Georgia) or seems entirely hopeless, like in Texas (though the Fifth Circuit court will pick up Texan Greg Costa today).  

And would some one give Jennifer Prescod May-Parker of North Carolina a commission already?

However, even in some conservative states there has been progress.  Four nominees from Florida have cleared committee and await final confirmation after months of obstruction from Senator Marco Rubio. More importantly, Arizona has a functioning district court for the first time in several years as six  nominees received confirmation last week – including Rosemary Marquez, who was first nominated in 2011 and blocked by Arizona's senatorial delegation, and Diane Humetewa, the first Native American woman to become a federal judge.

The point is that progressives are right to be frustrated by continuing blocking of some nominations,  however, we should keep it in the back of our minds that nominations are flowing much more quickly now than they were a year ago.

Senior (judge) moments slow progressive turnover in U.S. Courts

With the filibuster dead for most executive appointments, Senate Majority Leader Harry Reid has stepped on the gas for judicial appointments this spring.  As of May 2, the body had confirmed four circuit court judges and 24 district court judges in 2014 – a veritable consentapalooza.

But for all the progress on nominations, the character of the federal bench is changing more slowly than it appears on the surface. Many judges who retire from their court don’t fully step down. Rather, when they take senior status, they still hear some cases. 

How big of a stamp can these semi-retired judges make? Sometimes a profound one, depending how the draw affects the composition of a three-judge panel at the circuit court level -- one step below the Supreme Court.

Take for example the recent infamous case Hobby Lobby vs. Sebelius currently before the Supreme Court – in which a corporation claims to have religious rights to evade the contraception mandate in the Affordable Care Act. The opinion at DC Circuit was authored bynoted fire-breathing conservative circuit justice Janice Rodgers Brown. However, the other judge that joined the opinion was A. Raymond Randolph – a George H.W. Bush appointee who took senior status in 2008. (For that matter, the dissenting justice was Harry Edwards, a Carter appointee who took senior status in 2005)

Semi-active senior judges also boast impressive numbers.

With the confirmations of Michelle Friedland and Nancy Moritz (Moritz is up on Monday) , Democratic appointees will hold 80 judgeships on the circuit courts and GOP appointees hold 74, with 14 vacancies.  

However, there are 91 active judges with senior status – 55 appointed by Republican presidents and 36 by Democrats. Throwing them into the mix leaves us with 129 Republican appointees and 116 appointed by Democrats – quite a shift.

This comparison is a bit misleading – most of those senior judges don’t hear as many cases so the GOP advantage is overstated considerably. (Senior judges hear about 15 percent of all cases across the court system.) Nor do senior-status judges sit on en-banc cases at the appellate level in which the entire court hears a case and often overturns the decision of a smaller three-judge panel.

However, the presence of senior judges is currently working to slow the pace of progressive judicial decisions, which is all the more reason to keep aggressively confirming judges.

Senate confirmation update -- Obama getting more appointments through

Later today, the Senate is going to vote to confirm Michelle T. Friedland to be a judge on the Ninth Circuit Court. You can read up on her here – she’s pretty darn impressive in both competence and politics. 

Oh, and by the way, the Senate will also appoint David Weill as the administrator of the Wages and Hours Division for the Department of Labor, you know, the people who stop low-wage workers from getting ripped off by their employers.

You probably haven’t read much of anything about either nomination. These appointments seem entirely unremarkable and ordinary. Frankly, they should be, it’s a routine part of making government function. And in the post-filibuster world, routine nominations, judicial and otherwise actually seem to be proceeding fairly smoothly for the first time in five years.

During the first four months of 2014, the Senate has confirmed 20 judicial nominations – the most of any of the first four months of any calendar year of the Obama administration. On average, Majority Leader Harry Reid seems to be confirming either one appeal court nominee or four district judges per week the Senate has been in session this year.

Things aren’t perfect.  In some cases Republicans are still blocking qualified nominees in committee through the blue slip system– like North Carolina’s Jennifer Prescod May-Parker. In other cases, Republicans aren’t providing any input on nominees at all – like in Texas while the state’s federal bench languishes, as Houston's ever-handy Charles Kuffner has pointed out. And in some cases, they are driving a hard line – insisting on having Obama nominate a large number of their nominees in exchange for seating a few of his, like in the Northern District of Georgia -- a deal that has irked the state's civil rights community. 

Even the Friedland nomination should have been voted on before the Senate left town for the Easter recess on April 10, but Republicans insisted upon using their allotted 15 hours of debate to slow down the nomination (though none of them actually planned to debate).

However, overall the nominees are both flowing in a more orderly manner through the confirmation process.  There are currently 50 judicial nominations awaiting action in the Senate (eight appeals and 42 district). Thirty-one of those have moved through the judiciary committee and are awaiting final confirmation.

Among those 31 include several  nominees from Arizona and South Carolina, who had been languishing for months in committee.

Once those are confirmed (hopefully by August) that will leave Obama with 50 appellate appointments and 214 district appointments – roughly on track to match George W. Bush’s total number of appointments.

Overall then, move to end the filibuster for most executive appointments seems to have been a good one.

Some minimum wage comparisons Or "Yes, we can most certainly afford to raise the minimum wage"

So it appears one of the next big issues that's coming to a head is a debate over raising the national minimum wage. New Jersey raised its minimum wage and linked it to inflation during the last election, while the town of SecTac in Washington State raised its minimum wage to $15 an hour. Washington D.C. and two neighboring counties just voted to raise their wage to $11.50 an hour over the next several years, while California has voted to jump its minimum to $10 over two years.

Texas Republican Joe Barton, naturally, wants to go the other way.

Right now, the current minimum wage of $7.25 is worth about what it was in 1950 in inflation-adjusted dollars. I show the fluctuation of the minimum wage's value in this fairly well-known chart (figure I) that I reproduced with data from the Bureau of Labor Statistics.

What should we raise it to? Thinking about it's relationship to the poverty line is a good place to start, (though the limitations of the poverty line makes it a bad place to finish.) 

The poverty line for a single parent raising one child is $15,510 for 2013 and for a family of three (a single parent with two children) it's $19,530. For a full-time job at minimum wage to earn enough to lift a family of two above the poverty line, it would have to pay $7.76 an hour-- a raise of about 7 percent from the current wage. To lift a family of three with one worker out of poverty, it would need to be $9.77 -- a raise of about 35 percent.

Of course, that's assuming a full-time job. Many minimum wage jobs in fast-food and retail require lots of flexibility and limited hours (hey, if we gave workers over 28 hours a week, they'd be full time and we'd have to provide health benefits and we couldn't have that!). So let's assume a 25-hour work week, which is more typical at a minimum-wage service job. Keeping a single-parent family of two above the poverty line now requires $12.41 and hour, while a family of three requires $15.63; increases of 71 and 115 percent, respectively.

For historical context,  the minimum wage peaked at a value of $10.74 in 2012 dollars in 1968, which would be a raise of about 48 percent. If the wage had kept up with gains in worker productivity, we'd be looking at a minimum wage of $17.65 an hour, which is an increase of 143 percent. 

I stack all these possible wage gains in Figure II below:

We can debate how high the minimum wage should be, but America needs a raise, and their bosses can afford it. Based on the figures above, D.C's $11.50 over the next three years is easily justifiable, and fast food workers arguing for $15 an hour have a good case to make. Indexing to inflation is a must and future increases arguably should also account for productivity gains above the rate of inflation.

Post-filibuster stream of confirmations nears: Pillard first up followed by four district judges

So life in a post-nuclear Senate kicked off on Monday night.

We'll take the play-by-play from the Senate Democrats' floor report.

Majority Leader Harry Reid (D- Nevada) opened the proceedings at 6:43 p.m. by causally strolling up to the mike and agreeably asking for unanimous consent to move on all 80 executive and judicial nominations on the calendar.

(Watch closely kids, this is how you troll a legislative minority.)

Naturally, a Republican Senator (Lamar Alexander of Tennessee) objected, noting acidly that he wanted to see how the Senate would work without rules.

At 6:55 p.m. Reid then filed for cloture votes on 10 nominations. The first one of these for will occur on Wednesday morning at 11 a.m.

After each cloture vote, the motion will have to "ripen," meaning that debate and other parliamentary maneuvers can consumer up to a certain amount of time post-cloture.  According to the current rules, this time can exceed no more than 30 hours for cabinet-level posts or equivalents (Supreme Court Justices, Circuit Court Justices Federal Reserve Chairs, etc). For all other executive appointments, the amount of time is 8 hours, and for district judges the time is two hours.

So the first confirmation up is Nina Pollard at 10 a.m. local time for the D.C Circuit Court (Her cloture motion passed before the Thanksgiving recess, so the 30 hours on her motion has expired)

Starting Wednesday, we'll see cloture votes on four district court judges, five mid-level executive appointments and the Secretary for Homeland Security, Jeh Charles Johnson.

List of upcoming confirmations:

Judges:
Elizabeth A. Wolford (Western District New York -- a judicial emergency)
Landya B. McCafferty (District of New Hampshire)
Brian Morris (District of Montana -- judicial emergency)
Susan P. Watters (District of Montana -- judicial emergency)

Executive appointments:
Jeh Charles Johnson (Secretary of Homeland Security)
Deborah Lee James (Secretary of the Air Force)
Heather Anne Higginbottom (Deputy Secretary of State for Management and Resources)
Anne W. Patterson (Assistant Secretary of State, Near Eastern Affairs)
Chai Rachel Feldblum (Member, Equal Opportunity Commission)
Patricia M. Wald (Member, Privacy and Civil Liberties Oversight Board)

 Some of these are boring, but putting them in place makes the government work that much better.

I would imagine that the other D.C. circuit justices, Melvin Watt at the Federal Housing Administration and Janet Yellen at the Federal Reserve, along another half dozen or so district judges and numerous other mid-level appointments will follow in short order next week.

The gears of functioning government are grinding slowly into motion.

From Consent to Advice -- other possible avenues to block judges in the Senate

Yesterday, we all crawled out from our radiation shelters to behold the charred remains of the Senate landscape. You see, Harry "Major Kong" Reid engaged the nuclear option last Thursday, blowing up chamber procedure and changing to require only a majority vote to end debate on executive and non-Supreme Court judicial nominations.

So now what? Over the short term, the confirmations should flow fairly quickly. There are currently four appeals (including the three D.C. circuit nominees) and 13 district court nominations that have passed through the Senate Judiciary Committee and are awaiting floor action. They should fly through in a jiffy in December.

Behind that immediate flurry, the picture gets a bit murkier. There are currently 93 vacancies on the federal bench --  18 on the appellate level and 75 at the district level. Getting the 17 easy confirmations out of the way leaves 76 slots (14 appellate and 62 district). Of these Obama has nominees for six appellate and 30 district vacancies.

There are two ways Republicans can slow down or block nominations to these vacant slots.