Filibustering Is Not Obstructing

Empty Chair at Supreme Court. Photo: OneNewsPage.com

Empty Chair at Supreme Court. Photo: One News Page.

When the Democrats launched a filibuster against the confirmation of Judge Gorsuch to the Supreme Court, some claimed that it was only nasty revenge for the refusal of the Republicans in 2016 to vote, or even hold hearings, on the nomination of Judge Merrick Garland. The comparison is not apt.

Judges Gorsuch and Garland are both highly gifted members of the U.S. Courts of Appeals, judicial offices second in rank only to the justices of the Supreme Court. There the similarity ends. [Read more…]

Advice and Consent and the Nomination of Judge Merrick Garland


One seat on the nine-member Supreme Court has been vacant since Justice Scalia died unexpectedly on February 13, 2016. To rectify this problem, will President Obama’s nomination of Judge Merrick Garland to the Supreme Court be headed for a vote, for withdrawal or for a recess appointment? [Read more…]

Fair Share Union Fees for Public Sector Employees

— by Stuart Appelbaum, President of the Jewish Labor Committee

The Supreme Court of the United States

The Supreme Court of the United States

The right to form and join unions in both the public and private sectors is critically important to working men and women in the United States, giving them a voice in economic and political spheres. Unions help to build and sustain a strong middle class and mitigate income inequality, which can destabilize our society. In the public sector, however, the future of unions is being threatened in a case recently argued before the United States Supreme Court.

The case, Friedrichs v. California Teachers Association, involves the issue of “fair share fees” for nonunion members in public sector jobs. Public sector unions help to ensure decent pay, fair working conditions, and a range of benefits for public employees, such as teachers, firefighters, social workers, police and others. Where there is union representation in a public or private sector workplace, the union is legally obligated to negotiate on behalf of all employees, including the nonunion workers. Because these workers benefit from union representation, they should pay their fair share for the union’s work on their behalf; otherwise, they are getting a free ride by reaping the benefits paid for by others. In Friedrichs, the practice of imposing fair share fees for public sector unions is being challenged.

In the 1977 case of Abood v. Detroit Board of Education, the Supreme Court ruled that it is constitutional for public sector unions to collect fair share fees from those employees who choose not to join a union, but are still legally required to be represented by that union. These fees are to reflect only the costs involved in negotiating for “bread and butter issues,” not political activities. The Supreme Court decision in Friedrichs, which is expected in June, could change that 1977 ruling.

If the Supreme Court overturns Abood, the impact of this decision would extend beyond public school teachers in California to all public employees throughout the country. Without the fair share fee, public sector unions would have fewer resources to handle negotiations and grievances. The result would be to adversely affect all employees in public sector workplaces with union members. Union resources would be further reduced as public employees decide to forego union membership in an attempt to gain the benefits of union services without paying their fair share of the costs. Removing the fair share fee requirement may also impede state and local governments’ ability to recruit and maintain highly skilled employees: if public sector workers earn less and have more precarious work situations than their private sector counterparts, more people will be inclined to work in the private sector.

The Jewish Labor Committee stands with public sector unions and with the decision of Abood v. Detroit Board of Education. We view the Friedrichs case as the most recent manifestation of an ongoing multifaceted campaign to reverse over a century’s worth of hard-won gains by American workers to have strong unions defending their interests in the public as well as the private sectors of our society. The Jewish Labor Committee is firmly opposed to this most recent attack on unions and on workers’ rights.

Penn. Voting Technology Enters 21st Century

votePennsylvanians are now able to register to vote online, thanks to the efforts of Governor Tom Wolf’s administration. This is not a misprint!

The process is relatively straightforward, as the diagram to the right shows.

*October 5 is the registration deadline for the November 3, 2015 general election.*

This crucial election will determine not only control of city councils, county commissioners and school boards, but also the all-important Pennsylvania Supreme Court. The upcoming state redistricting will largely determine the balance of control in the state’s legislature and Congressional delegation, and the Pennsylvania Supreme Court will surely be called upon to settle disputes regarding this redistricting just as they have done in the past.

The new online process can be used by individuals registering for the first time, or for individuals who are already registered but have moved, changed their name, or want to change their party affiliation. Pennsylvanians can still use paper forms to register or change their registration info, if they prefer.

To register to vote for the first time in Pennsylvania, a person must be a U.S. citizen and a resident of the Pennsylvania district in which they want to vote for at least one month before the next election. They also must be at least 18 years of age on or before the day of the next primary, special, municipal, or general election.

DNC national director of voter expansion, Pratt Wiley, applauded Governor Wolf’s initiative:

Every day, Americans go online to pay bills, trade stocks, and even adjust the temperature in their homes – there’s no reason why Americans shouldn’t be able to use these tools to register to vote.

Democrats believe our nation and our democracy are stronger when more people participate, not less. That’s why we advocate for commonsense solutions like online voter registration and why we remain committed to ensuring that every eligible voter is able to register, every registered voter is able to vote, and every vote is counted.

Pennsylvania now joins 27 other states currently offering or implementing online voter registration.

Please share this information with others, particularly new residents in your neighborhood and younger people who will be turning 18 this fall. More details are available online.

Alabama Supreme Court Judge Equates Gay Marriage & Nazi War Crimes

Alabama Supreme Court  Chief Justice Roy Moore

Alabama Supreme Court Chief Justice Roy Moore

— by Sharon Bender

In the aftermath of the landmark Supreme Court decision granting marriage equality to gay and lesbian couples, Alabama Supreme Court Chief Justice Roy Moore responded to an Al.com reporter’s question about enforcing the notable decision. He told the reporter that enforcing the Supreme Court ruling is akin to following the immoral orders of the Nazis.

It is disgraceful to use Nazi imagery to invoke a political or social view. Comparing the systemic attempt to annihilate an entire population to a peaceful Supreme Court decision minimizes the very magnitude of the Nazis’ maniacal efforts to murder Jews, gays and others across Europe and eventually, they hoped, the world.

Moore told the reporter: “Could I do this if I were in Nuremberg [at the war crimes trials after World War II], say that I was following the orders of the highest authority to kill Jews? … Could I say I was ordered to do so?”

Told by the reporter that: “killing human beings, not gay marriage,” was the focus of the Nuremberg trials, Moore reportedly asked: “Is there a difference?”

This shameful, inappropriate comparison trivializes both the unique atrocity that was the Holocaust as well as the momentous equality decision by the Supreme Court.

Respect for Marriage Grounds a Compelling Supreme Court Decision

Hollingsworth_v._Perry[1]Supreme Court Justice Anthony Kennedy’s opinions in gay rights cases have always reached for rhetorical heights, and some critics confuse that with mushy thinking. But his decision in the same-sex marriage case Obergefell v. Hodges is compelling precisely because it avoids some of the cheap clichés that have marked many prior lower court opinions declaring a right to same-sex marriage.

Justice Kennedy, writing for the Court, did not claim that opponents of same-sex marriage are merely bigoted. To the contrary, he acknowledged that many opponents “reach that conclusion based on decent and honorable religious or philosophical premises.” Justice Kennedy did not hold that bans on same-sex marriage are simply “irrational” as some other judges have. Instead, he relied on the fundamental right to marry.

Other courts had only thought it possible to uphold a right to same-sex marriage by hollowing out the significance of marriage itself. But Justice Kennedy did just the opposite. Thus, while the Massachusetts Supreme Judicial Court insisted that civil marriage is a “wholly secular institution,” a mere civil contract, Justice Kennedy emphasized the “centrality of marriage to the human condition” as reiterated in “untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures, and faiths.”

Similarly, Justice Kennedy did not dismiss the link between marriage and procreation. Instead, he held that one reason “for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education,” while also insisting that the exercise of the right in particular cases cannot be conditioned on the ability or willingness to have children.

More generally, Justice Kennedy argued, “Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect — and need — for its privileges and responsibilities.” Similarly, near the end of the opinion, he wrote, “It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves.”

This is, in short, in many of the best respects, a deeply “conservative” opinion, upholding not only the right to same-sex marriage but the abiding constitutional, cultural, religious, and moral significance of marriage itself.

Concluding paragraph of today's historic decision.

Concluding paragraph of today’s historic decision.

Also posted in Rutgers Today and Religious Left Law.

Perry Dane is a Professor of Law at Rutgers School of Law – Camden. His prior writings on same-sex marriage include “Natural Law, Equality, and Same-Sex Marriage.”

The Limits of Freedom of Religion

Since the Supreme Court pronounced that a corporation can have religious rights, a number of new cases have been emerging, seeking to stake out broad additional territory.

In the Hobby Lobby case, the Court found that a closely held business corporation had religious rights, and could deny its employees contraceptive health insurance coverage called for under the Affordable Care Act. But that ruling may be only the beginning of a new chapter in the law of religious freedom under the First Amendment.

A few years ago the Pennsylvania Department of State, the agency that processes incorporation papers, refused to accept an application for the title “I Choose Hell Productions LLC” because it contained blasphemy. The Department rested its refusal on a law against blasphemy in corporate names, and argued in support of the law that the public should not be exposed to inflammatory language. The federal court hearing the case ruled that the law was an unconstitutional effort to advance religion.

But what about a law that is entirely neutral – that does not deal with religion at all? Polygamy is unlawful across the board, even though a few religions allow it. A law against cruelty to animals will be effective against animal sacrifice if the law is conceived and worded neutrally, and not as a reaction to a particular religion.

Simons Looking back by Stevie

A Jewish lesbian wedding in Colorado. Photo by Steve Crecilius.

However, in Hobby Lobby, the Supreme Court ruled that a corporation for profit could avoid complying with a provision of a totally neutral law – the Affordable Care Act – to provide insurance that includes benefits for contraceptives, if the owners of the business have a religious scruple against use of the abortifacient medicines at issue. Since then, it has been open season on religious exemption claims.

Several states have extended to gays the protection of their laws against discrimination in employment, housing and commerce. In Colorado, a cake baker refuses to prepare wedding cakes for LGBT weddings. The baker justifies his refusal on grounds of his religious beliefs. A gay couple challenged the refusal before the state human relations agency and won. The baker is appealing to a court from agency’s the ruling against him.

In New York, a catering hall that usually handles weddings refuses to rent out for gay weddings. A gay couple who were refused a booking complained to the New York State human relations agency and were successful. The wedding hall is appealing to the state courts.

What is the right answer to these cases? The traditional response is rendering up to Caesar: Those who engage in commerce must accept the burden of the laws that cover matters such as trade and employment. The newly emerging answer may be that individual religious scruples are protected, even in the commercial marketplace.

As a minority, Jews might prefer the new and enlarged version of the First Amendment protection of religion. Maintaining our religious practice without any accommodation is certainly very difficult at times.

Or we might conclude the opposite. Consider that the baker might have anti-Semitic “scruples” along with his belief against gay marriage. The wedding hall could prefer not to accept events that bless a marriage without mentioning the Christian sacraments.

Large urban centers have plenty of bakers and wedding halls, but other areas, where few Jews live, may also have few of these services. Should the views of such services’ owners – even the sincerely held religious views — exempt the businesses from the anti-discrimination laws of their states or of the federal government?

As the new cases move along, we will find out.

Should Obama Start Compromising on His Agenda?

Will the Senate prevent Obama from nominating another justice like Sonya Sotomayor?

Will the Senate prevent Obama from nominating another justice like Sonya Sotomayor?

Obama will have to deal with a Republican Senate for the first time in his presidency and some, like think tank “Third Way,” argue Obama should respond by compromising on his progressive agenda. But is that really necessary?

In important matters such as Supreme Court appointments, Obama might be more effective by standing up for his convictions.

Bill Clinton watches as Ruth Bader Ginsberg is sworn in as Supreme Court Justice in 1993.

Bill Clinton watches as Ruth Bader Ginsberg is sworn in as Supreme Court Justice in 1993.

This question is all the more important as 81 year-old Justice Ruth Bader Ginsberg underwent heart surgery after experiencing discomfort on Tuesday. Otherwise, she is in fine shape: She works out regularly, and even put in an “all-nighter” to write her dissenting opinion last month on the Texas Voter ID law, as she told Ella Magazine in September, before her heart problem started:

Jessica Weisberg: I’m not sure how to ask this, but a lot of people who admire and respect you wonder if you’ll resign while President Obama is in office.

Justice Ruth Bader Ginsberg: Who do you think President Obama could appoint at this very day, given the boundaries that we have? If I resign any time this year, he could not successfully appoint anyone I would like to see in the court. [The Senate Democrats] took off the filibuster for lower federal court appointments, but it remains for this court. So anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided. As long as I can do the job full steam… I think I’ll recognize when the time comes that I can’t any longer. But now I can.

Control of the Senate makes little difference on legislation as long as Obama is willing to to dust off his veto pen. Over the last six years Obama has only vetoed two bills, fewer than any President since James Garfield who served for only half a year. However, that should change as his veto authority will be needed to keep  Republican legislation in check.

However, Obama’s veto pen is of little use to stymie the Senate’s abuse of its power to confirm or deny Presidential appointments. Even with a Democratic majority, the Republican threat of a filibuster has created a record backlog.

According to AP, “Some 150 of President Barack Obama’s nominees are still waiting their turn. They include 25 more potential ambassadors and other senior State Department appointments.” For example, we do not have a Surgeon General to spearhead our response to the Ebola crisis. Fully a quarter of the world, does not have an American ambassador. We don’t have one in Russia to clarify our position in the war with Ukraine and we do not have one in Guatemala to stave off the droves of unaccompanied minors seeking refuge in our country. The situation was even worse  until Harry Reid recently limited the ability to filibuster certain judicial appointments.

Defining a Legacy

Of all these nominations the most significative are the judicial appointments, since they are lifetime appointments. A justice appointed to the Supreme Court may end up serving decades after the President who made the appointment is long gone. In this way, judicial appointments especially to the Supreme Court define a president’s legacy far beyond his own term of office.

This is not a moot point. Given the ages of the current Justices on the Supreme Court, there is a 49.1% chance that at least one of the nine will not live to see the inauguration of the 45th President of the United States. Together with the possibility that a Justice retires for health or personal reasons short of shuffling off this mortal coil, it is more likely that not that Obama will yet face one or more vacancies on the Supreme Court.

Harry Enten studies Obama’s options for a potential Supreme Court vacancy and concludes that “The Supreme Court won’t be getting another Sotomayor anytime soon” and suggests Obama placate Republicans by seeking candidates more to their liking.

The 2014 Senate elections have made it more difficult for Obama to appoint a Supreme Court Justice. If any future nominee looks like those the Pr4esident has already appointed, he’d likely have a fight on his hands. His best chance would be to go with a nominee who is a true moderate, or an impeccably qualified, mainstream Democrat.

That might work if Republicans were opposing Obama’s nominees on their merits. However, Republican opposition has often taken shape to gain leverage as a protest against extraneous issues like the Affordable Care Act or immigration. Sometimes Obama’s support for a previously conservative idea is the kiss of death as Republicans flip positions in order to not be perceived as supporting anything that Obama favors.

Making the Case Directly to the People

Instead of searching in vain for a hypothetical consensus candidate, Obama should choose the candidate who best exemplifies his vision for the Supreme Court and make his case directly to the public.

Adam Green suggests that Obama stop catering to “what the center of Washington D.C. is instead of what the center of the country is…. If Mitch McConnell wants to stand up and say ‘no’ to millions of hispanics; if Mitch McConnell wants to say ‘no’ to millions of women, then let him.”

Perhaps the Republicans will refuse to approve a progressive justice, and either deny the candidate a hearing or vote the candidate down. However, if they do, Democrats can make that the issue they bring to the American people in the 2016 election. If voters are unhappy with actions of the Senate, many Republican Senators will lose the seats they won in the Republican wave of 2010.

If the Democrats win the White House and regain control of the Senate, the next President would be able to appoint a true progressive. If necessary, it would be better to wait a little while for a nominee with vision than to settle for a flawed compromise justice of the Supreme Court.

Where Will Shale Oil Go This Year?

330px-Marcellus_Shale_Gas_Drilling_Tower_1_crop

A horizontal drilling rig for natural gas in the Marcellus formation in eastern Lycoming County, Pennsylvania.

How did the oil industry get to tap Pennsylvania’s Marcellus shale without a severance tax? Will that change in 2015?

A detailed look at the lobbying effort by Allegheny Front shows the dimensions of the fight:

An investigation by the Allegheny Front and 90.5 WESA found the oil and gas industry spent heavily on lobbying while the state was writing regulations for shale gas. The industry spent $34 million on lobbying in Pennsylvania since 2007, according to the Pennsylvania Department of State’s lobbying disclosure database. That includes a high of $9 million in 2012, the year Act 13 passed. The money was spent by 27 companies that have drilled unconventional wells or are ‘board members’ of the Marcellus Shale Coalition, and five trade associations.

Compare that to the state’s largest environmental groups — who spent about $1.5 million dollars combined in that period — and $330,000 in 2012.

Flogging the oil industry for doing what comes naturally is important but solves only part of the problem. Supervision by the Public Utility Commission (PUC) has been removed from Act 13 by the Robinson Township case in the Pennsylvania Supreme Court, which restored local zoning control of oil and gas development. This ruling presumably deprived the oil industry of a significant part of their hard-bought legislative package.

The election of Tom Wolf as Governor reopens the oil and gas severance tax topic, and as a result, the question of local zoning versus control by the PUC, or a different body, will be back on the table too. And one reason the oil industry does so well in the legislative process is that the environmentalists are a true Tower of Babel. Their seriously-held positions range from reasonable up to and including extreme back-to-nature advocates.

In searching for useful middle ground, we need to peel away those who hope to cancel Pennsylvania’s and the nation’s amazing good fortune to have uncovered useful shale oil. This resource has changed our position in the world – going from heavily dependent on imported oil, to potentially becoming a major exporter of petroleum and gas. And the shale has changed the economy of much of the rust belt in Pennsylvania and Ohio.

Some public, who do not live in shale country, are willing to mail in a check to fight the shale. But realistically, revoking development of the Marcellus is not on the table and will not happen.

So the need going into 2015 is to find a sensible program of oil and gas taxation and regulation that keeps the baby healthy, and the bathwater that comes from shale development healthy too.

JSPAN Supports Providing Contraceptives to Workers


A package of birth control pills.

Earlier this year, the Jewish Social Policy Action Network (JSPAN) filed an amicus curiae brief, urging the U.S. Supreme Court to uphold the Affordable Care Act’s mandate that private, for-profit corporations provide employees with coverage that includes all FDA-approved contraceptive methods.

The key issue in Sebelius v. Hobby Lobby, now before the Court, is whether for-profit corporations have a right to deny contraceptive coverage to women workers based on religious objections of the corporation’s owners. JSPAN argues that it would not be proper to treat the religious views of the corporation’s shareholders as an exercise of religion by the corporation.

More after the jump.
In the fall of 2013, JSPAN filed an amicus brief in Town of Greece v. Galloway, which is also now pending before the U.S. Supreme Court. JSPAN therein urges the Court to reverse its prior opinion and ban government sanctioned legislative prayer.

Additionally, earlier this year JSPAN has joined with the Anti-Defamation League and other groups in briefs to federal courts of appeals in challenges to state same sex marriage bans in Utah, Virginia, and most recently, Oklahoma.