Andrew Harnik-Pool/Getty Images
I believe Dr. Christine Blasey Ford.
Whether you accept as true that Dr. Ford was sexually assaulted by Supreme Court nominee Brett Kavanaugh (I do) or whether you believe Judge Kavanaugh’s account of himself as a wholesome teenager dedicated to school, sports, and service (I don’t), in all the tumult of the last week we’ve lost sight of the fact that Brett Kavanaugh’s record both on the bench and during hearing testimony is in itself disqualifying.
First, let's take a step back from what’s happening now. It bears notice that past nominees to high ranking positions have withdrawn for far, far less than what has been alleged against Kavanaugh. Remember Nannygate? In 1993 President Clinton’s nominee for Attorney General, Zoe Baird, withdrew her name from nomination because it was discovered she hired undocumented immigrants to serve as chauffeur and nanny and had not paid their Social Security taxes. After Baird withdrew, Clinton tried again with Judge Kimba Wood. She too had hired an undocumented immigrant as a nanny, but unlike Baird, Wood had paid the taxes and her actions were within the law at the time. Nevertheless, Wood also withdrew. Then there was Douglas Ginsburg, nominated to the Supreme Court by Ronald Reagan in 1987 after Lewis Powell retired. When reports surfaced that Ginsburg had smoked marijuana as a student in the 1960’s and later when he was an assistant professor at Harvard, he backed out of the nomination process. (Coincidentally, after Ginsburg withdrew, Anthony Kennedy went on to a seat on the court.)
I won’t go into detail here about Kavanaugh’s record. I’d just like to point out a few key facts:
But more importantly, Brett Kavanaugh has a problem with the truth. Please reread my August 14th blog post “Exhibit A”. In it I pointed out that Kavanaugh’s appointment by George W. Bush in 2003 to the position he currently holds on the D.C. Circuit Court of Appeals, was held up for three years due to a contentious hearing and charges by Democrats that he was too partisan to sit on the bench. (Sound familiar?) I also wrote that during the current hearings, Senators Durbin and Leahy noted that Kavanaugh may have perjured himself when he was up for the circuit court post regarding his role in the Bush White House. And astute observers have noted serious inconsistencies in Kavanaugh’s testimony last Thursday. (See "How We Know Kavanaugh is Lying")
In today’s contentious atmosphere of partisanship (think Lindsey Graham’s apoplectic rant) and the extremely serious and possibly criminal charges against Kavanaugh, the foibles of past nominees like Baird, Wood, and Ginsburg seem quaint.
The lesson for Kavanaugh is that those nominees admitted to what they had done and responsibly moved on. Zoe Baird is now president of the Markle Group, a charitable organization which promotes the use of information technology to address public needs and improve people’s lives. Kimba Wood is now Chief Judge of the U.S. District Court for the Southern District of New York and is presiding over high-profile cases such as the one against Trump attorney Michael Cohen. Douglas Ginsburg continues to serve as Senior Judge on the D.C. Circuit Court of Appeals. (That’s the same D.C. Circuit on which Merrick Garland and Kavanaugh currently sit.)
An individual seeking a lifetime position on the most powerful court in the land, a position with which comes the responsibility of making decisions that potentially affect each and every citizen, should be a person of impeachable character and a spotless record on the bench. Just as Dr. Ford felt it was her “civic duty” to come forward with her story, Brett Kavanaugh should do the country a favor and step down.
posted by Amy Levengood
In case you missed it…Paul Manafort, Donald Trump’s former campaign manager, pleaded guilty to conspiracy charges last week and is now cooperating with Special Counsel Robert Mueller. Many are touting this as a major turning point in the Russia investigation. That remains to be seen. As part of his plea deal, Manafort forfeited $45 million in criminal assets, prompting pundits on social media to joke that the Mueller investigation is actually making the American taxpayers money. That also remains to be seen. But even before Manafort decided to trade in his ostrich jacket for a canary suit, he was required to put up over $11 million dollars in bail, which he did in the form of real estate.
But what happens to those who don’t have Manafort’s resources (or connections to Russian oligarchs)? There has been a lot of discussion recently about the inequalities in our justice system, particularly when it comes to cash bail. In fact, the topic was the focus of the Lehigh County Board of Commissioners meeting last Wednesday. Representatives from Pennsylvanians Organized to Witness Empower and Rebuild (POWER) Lehigh Valley, the NAACP, and the Lehigh Conferences of Churches addressed the board, advocating for alternatives to cash bail for nonviolent offenders, saying the current cash bail system is unfair to poor individuals and also to taxpayers.
“Cash bail is a system of pretrial release that forces a person who has been accused, but not yet found guilty, of a crime to pay a fee to be released from custody prior to additional proceedings or trial,” Julie Thomases who attended the meeting said. “It unjustly puts people into prison because they are poor. It increases cost to taxpayers. And it’s being challenged in many courts as unconstitutional.”
The current court system requires defendants in many criminal cases to post bail in order to be released while charges are pending. Many times judges set a high bail to ensure repeat offenders, people who are flight risks, or those accused of violent crimes are kept behind bars. Setting a high bail is often used as an incentive for defendants to appear at their court hearings.
The facts about mass incarceration in PA*
*From ACLU Pennsylvania’s Smart Justice campaign
Not only is cash bail unfair to the poor and minorities, it also puts a burden on the system by unnecessarily incarcerating individuals, sometimes for months, simply because they can’t make bail. This is an issue that plays well on both sides of the aisle, speaking to calls for social justice reform and also for fiscal responsibility. Lehigh County Commissioner Percy Dougherty supports eliminating cash bail, because he thinks it’s something fiscal conservatives can get behind. Percy said at Wednesday's meeting, “Even though I’m a dyed-in-the-wool Republican and I’m supposed to be tough on crime and everything, but I also look at this as it’s costing us a lot of money in the county jail. If you’re a fiscal conservative, you have to believe that the bail system that we have right now is improper,” he said. “It discriminates against poor people.”
There’s one more aspect of cash bail that has advocates calling for reforms in the system. It’s increasingly being challenged in the courts. Speakers at the meeting cited the case of a Boyertown man, Joseph Curry, who was charged with shoplifting. Curry’s bail was set at $20,000. Because he feared he couldn’t make bail, Curry pleaded guilty even though he felt police hadn’t properly investigated the charge against him. He ended up spending 3 months in jail and missing the birth of his son. Curry’s appeal was denied by the Third U.S. Circuit Court of Appeals, but the case is being used to argue for bail reform. “It seems anomalous that in our system of justice, the access to wealth is what often determines whether a defendant is freed or must stay in jail,” Circuit Court Judge Michael Chagares wrote. “Further, those unable to pay who remain in jail may not have the ‘luxury’ of awaiting a trial on the merits of their charges; they are often forced to accept a plea deal to leave the jail environment and be freed.”
In response to Wednesday’s meeting, a committee is going to be formed to gather information on changes to the cash bail system, which will include the district attorney, the public defender, county executives, a member of the board of commissioners, and the current president judge.
California Governor Jerry Brown just signed a bill that goes into effect October 1st 2019, which will eliminate cash bail for suspects awaiting trial, making California the first state in the nation to do so. Places like D.C., Philadelphia, and Allegheny and Northampton Counties have already eliminated cash bail for non-violent offenders. Groups like ACLU Pennsylvania are pushing for bail reform with their Smart Justice Campaign.
What is happening here in Berks? Maybe that’s a question our county commissioners would like to answer.
posted by Amy Levengood
Brett Kavanaugh being sworn in as a federal judge by Supreme Court Justice Anthony Kennedy in 2006. Kavanaugh is Trump's pick to replace Kennedy on the Supreme Court.
PAUL J. RICHARDS / AFP/GETTY IMAGES
The Senate Judiciary Committee chaired by Chuck Grassley announced on Friday that confirmation hearings for Supreme Court nominee Brett Kavanaugh will begin on September 4th. Grassley has stated that the process should take about two weeks. If Kavanaugh is cleared by the committee, his nomination could make it to the Senate floor for a vote within a few days, according to Grassley. Sounds like Chairman Grassley is eager to meet the GOP’s self-imposed deadline to seat the next Supreme Court Justice by October.
So why the rush job? The obvious answer is that Republicans would like to get Kavanaugh seated before the midterms in November when it is very possible they may lose their majority in the House and perhaps the Senate, as well, threatening the confirmation of this controversial nominee.
Many fear that Kavanaugh on the bench would be a threat to women’s reproductive rights, worker’s rights and voting rights. Just take for example, his time clerking for Judge Walter Stapleton of the Third Circuit in the 1990’s. At the time Stapleton wrote the majority opinion in Planned Parenthood vs. Casey, which upheld many of Pennsylvania’s abortion restrictions. Other examples of Kavanaugh’s partisan bona fides include working as associate counsel to Ken Starr and authoring the Starr Report on the Monica Lewinsky, Bill Clinton, Vince Foster investigation. As White House Counsel under Alberto Gonzales during the 2nd Bush administration, Kavanaugh worked on the nomination of Justice Roberts.
In the news currently and receiving much scrutiny is Kavanaugh’s stint in the George W. Bush White House. When Bush nominated Kavanaugh for the U.S. Court of Appeals for D.C., his confirmation was stalled for three years with Democrats charging he was too partisan. Later Senators Patrick Leahy and Dick Durbin said Kavanaugh mislead the Senate Judiciary Committee about his involvement in the Bush administration’s interrogation and detention policies after September 11th. What has reignited the debate is an email that has surfaced suggesting that Kavanaugh helped prepare then Attorney General John Ashcroft’s testimony to Congress on monitoring communications of terrorists. Kavanaugh has denied any role in the discussions of treatment of detainees or enemy combatants, but Democrats say the email proves his involvements and are saying he mislead the committee during his confirmation hearings for the D.C. Circuit. According to Politico, “Durbin and Leahy pointed to a 2007 Washington Post report indicating that Kavanaugh had participated in a conversation about whether Anthony Kennedy, the Supreme Court’s swing vote, would uphold the constitutionality of the Bush administration’s decision to deny legal counsel to Americans deemed enemy combatants to a charge that Kavanaugh had perjured himself.” These issues are sure to come up during the September confirmation hearings and be a major point of contention.
What hasn’t gained much notice are signs that Kavanaugh may very well side with Betsy DeVos on a number of educational issues. DeVos has a record of pushing for private school vouchers, undermining civil rights protections, and defending for-profit schools known to have deceived student borrowers. (See our Education blogs, Look for the helpers and Adrift or right on course?) Kavanaugh may be just what DeVos has been looking for to push her agenda. As an attorney in Florida, Kavanaugh defended Governor Jeb Bush’s school voucher program that the Florida Supreme Court found unconstitutional. He once praised Justice Rehnquist’s opinions upholding private school vouchers and tax deductions for private school tuition. Not to mention, Kavanaugh once applauded Rehnquist’s saying in a speech that a wall of separation between church and state is “based on bad history.” There are several related cases that could be sent to the higher court, that if confirmed, Kavanaugh would oversee.
Another concern is the NRA’s support for the Kavanaugh nomination, which many fear could lead to arming teachers in schools, something the Trump administration supports.
As was mentioned above, Kavanaugh’s thinking may be closely aligned with DeVos’. In a ruling while on the D.C. Circuit Court in 2016, Kavanaugh argued that the Consumer Financial Protection Bureau, which would safeguard student borrowers, is unconstitutional. Kavanaugh also ruled against a disable student trying to get services in a D.C. school and has shown signs that he is skeptical of affirmative action.
All of these examples show a close alignment with DeVos’ agenda. They also show that the fight for Kavanaugh’s confirmation is not going to be a pretty process, and putting it on the “rocket docket” won’t ease the tensions. Kavanaugh may be the poster child for right wing groups like the Heritage Foundation and the Federalist Society (See our Justice blog: Rubber stamp), but opponents like New York Senator Chuck Schumer say,
“Republican efforts to make this the least transparent, most secretive Supreme Court nomination in history continue. They seem to be more frightened of this nominee’s record and history than any we’ve ever considered.”
posted by Amy Levengood
Last week I wrote about the Government Reorganization Plan in "When in doubt, rearrange the furniture" and mentioned how many of the proposals contained within it and the people shaping the policy have come out of the Heritage Society. Not only are groups like the Heritage Society and the Federalist Society shaping policy, they have had a pivotal role in advising Trump on judicial appointees.
Given last week’s disastrous Supreme Court decisions on the Muslim ban and Janus v. Afscme and the retirement of Justice Kennedy, now's a good time to remind ourselves of what the two groups mentioned above are all about.
The Heritage Foundation
Who: Current president – Kay Coles James
What: a conservative think tank
Where: Based in Washington D.C.
When: Formed in 1973
Why: “to formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense.
A bit about two of the co-founders:
Joseph Coors: In the 1970’s he barred trade unions from his plants and after a prolonged strike with the Brewery Workers Union, required new employees to take lie-detector tests. Coors set up the Mountain State Legal Foundation, which was headed by James Watt (U.S. Secretary of the Interior under Reagan) after a law banned moving toxic aluminum waste from aluminum can production across state lines. They dismantled toxic waste disposal laws, in particular those affecting aluminum cans. During the Reagan administration, Coors privately spent $65,000 to buy a cargo plane for the Contras with the money going through Oliver North.
Paul Weyrich: Weyrich is also one of the co-founders of ALEC. He coined the term “moral majority” and co-founded the Moral Majority PAC with Jerry Falwell. Weyrich’s right-hand man was Laszlo Pasztor, a former leader of the pro-Nazi party in Hungary, which had collaborated with Hitler’s Reich. He is also known to have express anti-gay sentiments.
The Heritage Foundation gained prominence during the Reagan administration. Reagan credited the organization with being a “vital force” in the success of his presidency. The Heritage Foundation was key in developing the so-called “Reagan Doctrine” in which the U.S. provided military support to anti-communist resistance movements. The foundation also supported the Strategic Defense Initiative, an anti-ballistic weapons defense system that Reagan made his top defense priority in the early 80’s.
The group was considered a foreign policy “brain trust” during both the Reagan and Bush administrations. Heritage opposed President Clinton’s health care plan of 1993, but his welfare reform plans were similar to those proposed by the group. The Heritage Foundation was also behind Newt Gingrich’s “Contract with America” in 1994, which many argue helped create a Republican majority in Congress.
Another person associated with the foundation, Jason Richwine, who wrote the group’s report on the costs of amnesty, once argued that blacks and Hispanics are intellectually inferior to whites and have trouble assimilating because of a genetic pre-disposition to having low IQ’s.
It is being described as having a major influence on the Trump administration, including advising on staffing. At least 66 foundation employees and alumni got positions in the administration. The Heritage Foundation recommended Scott Pruitt, Betsy DeVos, Mick Mulvaney, Rick Perry, and Jeff Sessions.
The Federalist Society
Who: Current president – Eugene B. Meyer
What: “a conservative and libertarian intellectual network” (their own description) who want to reform the U.S. legal system in accordance with an originalist interpretation of the Constitution
Where: Based in Washington D.C.
When: Formed in 1982
Why: “to formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense” and “reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law. It also requires restoring the recognition of the importance of these norms among lawyers, judges, law students and professors” (from www.fedsoc.org)
Founders: former Reagan administration Attorney General Ed Meese and Robert Bork
Notable members: Justices Scalia, Thomas, Roberts, Alito, and Gorsuch, former Attorney General John Ashcroft, Senators Ted Cruz and Orin Hatch, and Kenneth Starr
The goal of the Federalist Society appears to be to influence policy not only by changing law but by shaping the ideology of lawyers themselves. Its focus is on networking and mentoring conservative attorneys. Here’s a quote from their website: “Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society. While some members of the academic community have dissented from these views, by and large they are taught simultaneously with (and indeed as if they were) the law.” The society’s founding principle is that the state exists to preserve freedom and “that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” In short, the Federalist Society seeks to limit government to only what the Constitution states in should be.
As recently as May of this year, the Federalist Society hosted an event called, “examining the legality of the Mueller investigation”, where one of the speakers argued that the investigation is unconstitutional.
The society has been highly influential in the Trump administration. Supreme Court Justice Neil Gorsuch is said to have been “hand-picked” by the Federalist Society along with many conservative judges Trump has nominated for the federal judiciary. Leonard Leo, who is currently Trump’s outside advisor on judicial nominees and was responsible for Gorsuch, is currently on leave of absence as executive vice-president of the society so that he can assist in choosing the nominee to fill the vacancy created last week by Anthony Kennedy’s retirement. Leo is said to have compiled the list of potential nominees to fill Kennedy’s seat. Here’s the list:
If you have the time (and the stomach) google some of the names on the list. Many of their rulings are decidedly right of center and many come down in ways that fail to protect “the little guy”. What is most striking is that they are predominantly male, predominantly white, and most importantly - young. Patrick Wyrick, for example, is just 37 years old. That last point tells you everything you need to know. Make no mistake, this list of nominees is designed to remake the court into the extremist far right vision that conservatives have been dreaming of, one that will consolidate the power of all three branches of government in the hands of one party, and one that will impact our nation for decades to come – literally. And we know what’s at stake: a woman’s right to choose, health care, the Mueller investigation, voting rights, civil rights, and fair political districting. The majority of the country supports Roe v. Wade, and in the last 6 presidential elections the popular vote was won by the Democrats, yet we are on the brink of having our democracy controlled by the minority view, one that neither reflects the majority ideologically nor demographically. Remember the judiciary's role is to provide check and balance on the other branches of government, not a rubber stamp!
posted by Amy Levengood
They say the secret to any good relationship is not to bring up the past. It’s funny then isn’t it that when confronted with almost any issue facing us today those on the right, starting with the Commander in Chief, love to blame their predecessors. Their favorite scapegoat more often than not is President Obama. In fact just this past Sunday on CNN’s State of the Union, PA’s former senator Rick Santorum blamed Obama for the state of race relations in the country. Santorum tried to argue that Obama “exacerbated” racism and the result is Trump. I don’t want to analyze Santorum’s remarks, because frankly he’s not worth the time, but it reminds me of something William Faulkner once wrote, "The past is never dead. It's not even past." If Santorum were a proper student of history, which as evidenced by his above remarks he is not, he’d know Faulkner was right. Sadly in many parts of our country, actions in the past still affect those of us living today. Coincidentally, in 2008, then Senator Obama paraphrased Faulkner in a speech on racial inequality. Obama argued that many of the current difficulties African-American communities face can be traced in a direct line back in time through Jim Crow to slavery. I’d like to add another point on that timeline, which began during the 1930’s and FDR’s New Deal.
A few weeks ago, I wrote about the Bank Lobbyist Bill, which unfortunately ended up passing in the House. One of the more salient criticisms of the legislation regarded removing the protections against racial bias in lending practices established under Dodd-Frank that the current bill would erase. In the case of the Bank Lobbyist bill, the discrimination had to do with exempting institutions from reporting data on lending procedures. But there is another practice that discriminates against people based on race that requires equal attention. It’s called “redlining”.
I’m going to go into the historical weeds here, but bear with me. It’s key to understanding where we are now. Redlining is basically institutionalized racism. The term was coined in the 1960’s by sociologist John McKnight to describe the practice of designating specific areas where banks should avoid investing. The redlined areas were typically in inner cities where the majority of residents were people of color. Not only were home mortgages denied to people living in these communities but they were also deprived of banking, insurance, health insurance and essential services like supermarkets.
Redlining began with the establishment of the National Housing Act of 1934 as part of FDR’s New Deal. This in turn created the Federal Housing Administration (FHA). Of course, discrimination and segregation predated all of this, but under these policies the decay of inner-city neighborhoods was exacerbated because the withholding of mortgages made it more difficult for these areas to attract and keep individuals able to afford homes. In 1933 under the New Deal, the Home Owner’s Loan Corporation (HOLC) was created. Initially, the intent of HOLC seemed benevolent-namely to refinance mortgages that were in default in order to prevent foreclosures. In 1935, HOLC was asked to look at 239 cities and identify “residential security maps”. The maps created by HOLC identified various levels of communities where mortgage lending would go from most desirable to least. “Type A” or those areas literally outlined in green on the maps were usually the more affluent suburbs and “Type D” areas which were typically older, urban, and predominantly black, were outlined in red, thus the term. After the maps were drawn, they were used for decades to deny loans to individuals in the redlined districts.
Below is an actual HOLC map of Philadelphia from 1936.
“The past is never dead. It’s not even past.” The damage done by HOLC’s redlining in the 1930’s lingers today. A study by the National Community Reinvestment Coalition (NCRC) concludes that the same neighborhoods designated as “hazardous zones” and “redlined” areas continue to suffer today from “inequality and lack of investment”. When comparing redlined areas on today’s maps, the study shows, “a pervasive, enduring structure of economic disadvantage in urban areas of the U.S.” Remember-this is 80 years later! Add all of this to the recent findings by Professor Philip Alston, an independent expert and the UN Special Rapporteur on extreme poverty and human rights, and we have ourselves a truly sorry situation.
Watch the video below to better understand redlining and how it works.
Alston is going to present a report to the UN Human Rights Council in Geneva at the end of this month, which is the result of a study he did on a December 2017 tour of some of America’s most impoverished areas, including Los Angeles, West Virginia coal country, parts of Alabama, and hurricane-stricken Puerto Rico. His report, which was published on Friday, paints a dire picture of the state of our nation and directs scathing criticism at the Trump administration and Republicans in Congress. Alston writes, “Trump is steering the country towards a ‘dramatic change of direction’ that is rewarding the rich and punishing the poor by blocking access even to the most meager necessities.” This is compounded by “a systematic attack on America’s welfare program that is undermining the social safety net for those who can’t cope on their own. Once you start removing any sense of government commitment, you quickly move into cruelty,” Alston told The Guardian. “If food stamps and access to Medicaid are removed, and housing subsidies cut, then the effect on people living on the margins will be drastic.” He added that the recent tax bill “overwhelmingly benefited the wealthy and worsened inequality”, saying “the policies pursued over the past year seem deliberately designed to remove basic protections from the poorest, punish those who are not in employment and make even basic health care into a privilege”. Furthermore Alston cautions middle-class Americans to stop thinking they are immune from Trump’s policies. “The proposed slashing of social protection benefits will affect the middle classes every bit as much as the poor.”
Now that you are thoroughly depressed, you may be asking what is the point of all this. The point is that the plight of marginalized and underserved communities will only become more perilous if we don’t all stand up to these policies, whether they be 80 years old or are coming out of Washington as we speak.
Institutionalized discrimination is nothing new. It started 400 years ago when some of the first slaves were brought ashore in Jamestown, it continued in the antebellum South, it took place under both Democrat and Republican administrations, it occurred in tract housing developments like Levittown, the kind Malvina Reynolds wrote about in her song “Little Boxes”, and it’s happening now at the hands of our own elected officials. What should be new is our response to it.
Click here to access interactive HOLC maps from across the country that show the extent of redlining.
posted by Amy Levengood
True story. A local contractor was awaiting final inspection of a building before being granted an occupancy permit. Typically it would be a routine part of the process for the seasoned businessman, but this particular project had been beset from the beginning with numerous setbacks and disaster after disaster-so much so that those involved were convinced they had mistakenly built on sacred ground or were the subject of some gypsy curse. The builder held his breath as the township zoning officer went through his checklist. Everything seemed to be going smoothly until the inspector pulled out his tape measure and held it up to the countertop in one of the rooms. “This is an inch and a half too high,” he said. The two men went from room to room measuring each work station, double-checking their blue prints, and sure enough, every counter in every work area was out of compliance. In ordering premade cabinetry, the builder forgot to specify the correct height. There was no denying it. In order to receive an occupancy permit, thus allowing the business to open on time, it meant that seven rooms of cabinetry including countertops, tile, sinks and plumbing would have to be entirely removed, redone, and reinstalled. Now if we were dealing with a less scrupulous businessman or a less diligent public servant you may be guessing that this story would have a less savory ending-maybe involving some green bills being slipped under the table. Not so. The builder bit the bullet, did what had to be done, and finally received the needed permits.
Why am I telling you this? Remember that inch and a half measurement error? It may seem insignificant, but to a person in a wheelchair it adds up to being able to wash one’s hands or turn around in hallway, or reach something in a cabinet-in other words, to have the same access as every other person. That inch and a half wasn’t some arbitrary number the zoning officer came up with to torment men and women in the construction business but one of the many requirements outlined in the Americans with Disabilities Act or ADA.
Believe it or not, there was a time in Washington when there were certain issues that stayed above the fray of partisanship. One of those issues was disability rights. In 1990, Democratic Senator Tom Harkin of Iowa introduced the Americans with Disabilities Act in the Senate, delivering part of his speech in sign language so that his deaf brother was able to understand. The ADA was signed into law by a Republican president, George H. W. Bush, who said upon signing, “Let the shameful wall of exclusion finally come tumbling down.”
The purpose of the act is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities''. Title III of the ADA, in particular, “prohibits places of public accommodation from discrimination against individuals with disabilities”. “Places” includes hotels, restaurants, theaters, shopping centers, auditoriums, museums, parks, private schools, day care centers, offices of health care providers, and gymnasiums. Title III also states that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation”. Title III requires that existing facilities be “free of architectural barriers and communication barriers that are structural in nature . . . where such removal is readily achievable”.
Prior to the ADA, it was often difficult for people with disabilities to fully participate in society. Public places were often inaccessible, and there was no recourse for those who were essentially barred entry solely on the basis of their disability. The ADA gave individuals with disabilities the grounds to file lawsuits against businesses which lacked accommodations, and although required by law under the ADA, many of the gains these individuals have made since 1990 are due to having to resort to litigation.
But now those gains could be in jeopardy. A new bill oddly titled the ADA Education and Reform Act of 2017 is making its way through Congress. Introduced last year by Rep. Ted Poe (R-TX-2) and officially known as H.R. 620, the bill would create burdensome red tape for individuals with disabilities attempting to fully exercise their rights as outlined in the ADA. First of all, H.R. 620 requires anyone filing a lawsuit under Title III of the ADA to provide written notice to the offending business owner, which cites the specific statutes that are being violated. The business owner would have 60 days to acknowledge the violation and then a further 120 days to make “substantial progress” toward rectifying the problem. Translation-as pointed out by the ACLU, “Business owners can spend years out of compliance and face no penalty even after they receive notice, so long as the owners claim substantial progress.”
It’s another case of those on the right decrying the undue inequities of federal regulations. The proponents of H.R. 620 assert that Title III has led to frivolous lawsuits that are killing business and hurting the economy. The claim is misleading. Business owners only have to remedy the violation not pay any monetary damages, and accommodations are only required if they don’t present an “undue burden” on the proprietor and can be “readily achievable”. Furthermore, there are federally funded resources that assist businesses to get in compliance. And by the way, they’ve had almost 28 years to set things right!
H.R. 620 is not the only threat to the ADA. In December, AG Jeff Sessions announced that the Department of Justice was rescinding several ADA documents which provide guidance on items such as service animals and accessible building practices. Also rescinded was a 2016 letter issued by President Obama that read in part, “The civil rights of persons with disabilities, including individuals with mental illness, intellectual or developmental disabilities, or physical disabilities, are violated by unnecessary segregation in a wide variety of settings, including in segregated employment, vocational and day programs.” This leads me to a final point. In recent months the Trump administration and Republicans on the Hill have been pushing for work requirements for Medicaid recipients. In fact, Kentucky has already received a waiver from the administration to roll out such a plan, and at least 9 other states are following suit. Seniors, children under 19, and pregnant women are exempt from the work requirement, but the situation is murkier for individuals with disabilities. States are being given wide latitude as to how the requirements will be imposed. Many disabled people rely on Medicaid, not to mention that many are already employed. But if provisions of Title III of the ADA are weakened, will Title I, which deals with employment, be next?
Maybe it’s just a problem of semantics. By definition the word regulation means to be controlled by rules. Unlike the contractor and the zoning officer in my story, some people just don’t like rules or being controlled by them. Or maybe it’s something darker. Perhaps we’ve come to an ugly place where expediency and greed take precedence over common decency and basic human compassion.
posted by Amy Levengood
On December 11th, 2017 State Rep Margo Davidson (D-PA 164) joined a group of female legislators, including State Sen Judy Schwank (D-PA 11), to announce new legislation to combat sexual harassment.
Following the lead of their counterparts in Washington, women of the PA House and Senate are coming together to introduce legislation that would protect victims of sexual harassment and abuse.
Back in November, Congresswoman Jackie Speier (D-CA 14) launched the Member and Employee Training and Oversight On Congress Act or Me Too Congress Act, supported by a bipartisan group of House members. A few weeks later, 20 Senators led by Kirsten Gillibrand (D-MI) introduced an almost identical bill called the Congressional Harassment Reform Act.
Speier herself is a victim of sexual harassment. In October she related her own Me Too story about being forcibly kissed by a chief of staff while she was a Congressional staffer. (Side note for the history buffs- Jackie Speier, as a young staffer, accompanied California Congressman Leo Ryan to Jonestown in 1978 to investigate human rights abuses by Peoples Temple leader Jim Jones. The team was ambushed by Jones’ followers. Congressman Ryan was killed and Speier suffered several gunshot wounds.)
Introducing the Me Too Congress Act Speier said, “In 1995, Congress created the Office of Congressional Compliance to protect itself from being exposed, and it has been remarkably successful. Twenty years later, 260 settlements and more than $15 million have permanently silenced victims of all types of workplace discrimination. Zero tolerance is meaningless unless it is backed up with enforcement and accountability. Today, I am proud that my colleagues in the House and the Senate, from both sides of the aisle, are joining me to end the era of impunity for disgraceful behavior and to protect the survivors.” Speier added, “Congress has been a breeding ground for a hostile work environment for far too long. It’s rigged in favor of the institution and the members, and we can’t tolerate that.”
The bill (officially named HR 4822) is meant to address shortcomings of the Congressional Accountability Act of 1995 Reform Act or CAA Reform Act. It was scheduled for mark up on Monday Feb 5th. HR 4822 is cosponsored by several Pennsylvania congressmen including Bob Brady (D-PA01) (who just announced he’s not running for reelection), Brian Fitzpatrick (R-PA08), and Ryan Costello (R-PA06).
One thing addressed by the 1995 legislation was that up until that time the legislative branch was exempt from many workplace laws that applied to the rest of the federal government. Critics say that the CAA Reform Act lacks transparency and accountability. Costello has described the current process as “confusing” and “opaque.” Costello said, “While many, if not most, Congressional offices, mine included, have policies in place regarding sexual harassment, this legislation will require annual sexual harassment training, and bring greater transparency and accountability to procedures for filing and investigating a complaint. It is appropriate for the federal government to lead on this issue. This bill is an important step forward in supporting a professional work environment, and I hope to see it signed into law.”
Here’s a look at the current process for victims on Capitol Hill:
Rep Speier points out that the current process as described above is excruciating and puts the survivor “at the bottom of the totem pole”. As the New York Times reported in the case of Pat Meehan’s former staffer, “It set her back financially and professionally, as she continued to pay legal costs associated with the complaint even after leaving her job in Mr. Meehan’s office and struggling to find a new one. She moved back in with her parents and ultimately decided to start a new life abroad.”
The new bill would change the process in a number of ways:
Reps. Speier, Costello, Brady, and Poliquin (R-ME) also introduced the bipartisan H.Res. 604 or the CEASE Resolution. It would require all members and staff of the House of Representatives to undergo annual sexual harassment prevention and response training. The Senate has already passed a similar resolution.
Much of the public uproar seems to stem from the fact that taxpayer money has been used to settle many of these harassment suits. While that outrage is understandable, the proposed legislation addresses more than that. As was mentioned earlier, the power of the Me Too movement has sparked legislative proposals not just at the federal level, but at the state level as well.
Pennsylvania Rep. Leanne Krueger-Braneky (D-PA 161) has introduced the #METOO PA State House Act (Member and Employee Training and Oversight on PA General Assembly Act) that would protect the victim and the public in the event of workplace sexual harassment in the PA General Assembly. The bill, HB 1965, has co-sponsors from Berks, including Mark Gillen (R-PA 128), Mark Rozzi (D-PA 126), and yes, wait for it, Tom Caltagirone (D-PA 127). (Hypocrisy is alive and well at the State House.)
The following are included in HB 1965:
HB 1965 is not the only legislation currently being considered in Harrisburg. A bill being introduced by Rep. Maureen Madden (D-PA 115) would legally protect all employees in Pennsylvania from unwanted sexual harassment by extending the Pennsylvania Human Relations Act to any entity that has more than one employee. Rep. Carol Hill-Evans (D-PA 95) has introduced legislation to create a task force to examine sexual assault on college campuses. Sen. Judy Schwank (D-PA 11) is also introducing legislation that would prohibit non-disclosure agreements within contracts or secret settlements related to sexual harassment or misconduct.
The efforts above should be applauded, but the biggest takeaway of all is that (sorry boys) women are leading the charge. In his recent column, Leonard Pitts Jr. says the 80’s pop song, “Sisters are doin’ it for themselves”, has in 2018 become a prophecy -with a record number of women running for office and forming organizations to support those who wish to do so. Pitts writes, “Now women have cranked the volume to 11 and broken off the knob…this wave of women power is an inspiration larger than gender. One hopes little boys are taking note, every bit as much as little girls. Sisters are doin’ it for us all.”
posted by Amy Levengood
Donald Trump’s attacks on the Justice Department didn’t start when he decided to enter the political arena. In 1973 when he was just 27 years old and fresh out of business school, he held a press conference (yes, he used to do those) outside a hotel in Manhattan and referred to what he called the government’s “outrageous lies”.
These comments were in response to a lawsuit filed by the Justice Department’s Civil Rights Division against Trump Management Company run by Trump’s father, Fred. The organization was being charged with racial discrimination in renting and managing some 39 buildings it owned, thus violating the Fair Housing Act.
One former employee alleged that Fred Trump told him not to rent to blacks, and that Trump clearly knew this was against the law. The same employee claimed that the elder Trump wanted to “get rid of blacks” who were in his building by telling them they could get cheaper housing elsewhere and offered to pay the down payments himself. Another allegation by the anonymous employee was that codes were used on rental applications to distinguish between blacks and whites. The employee was eventually fired.
In true Trumpian style the Trump Management Co. countersued the government for $100 million in damages. (The lawyer representing the Trump’s was none other than Roy Cohn.) The suit never went to court with both parties entering into a consent decree. The Trump’s admitted no wrong-doing but from that point on were required to advertise that they offered equal opportunity in housing.
Let’s take a brief look at the history of the Fair Housing Act the Trump’s were accused of violating, because it’s relevant to some recent activity at the U.S. Department of Housing and Urban Development (HUD) under Secretary Ben Carson.
The Fair Housing Act, formally known as The Civil Rights Act of 1968, was intended to provide for equal housing opportunities regardless of race, religion, or national origin. The Act, which saw serious pushback for years (It was the most filibustered legislation in U.S. history up to that point.) was finally signed into law by President Johnson just one week after the assassination of Dr. Martin Luther King, Jr.
The following forms of discrimination are banned by the law:
In 2012 HUD’s office of Fair Housing and Opportunity prohibited LGBT discrimination in federally assisted housing programs. In regard to non-federal housing, sexual orientation and gender identity aren’t protected under the Fair Housing Act, but 22 states have passed such legislation. Pennsylvania isn’t one of them. (Numerous municipalities in PA have signed their own non-discrimination ordinances. See our post from September, “Location, Location, Location”.)
Although the Fair Housing Act made significant strides in combating discrimination, there were aspects of the legislation that were underdeveloped. The Obama administration sought to make several improvements that would advance the law further.
Then 2016 happened. Julian Castro was out as HUD Secretary and Ben Carson was in, and he decided it was time to rearrange the furniture.
Carson attempted to delay for two years implementation of the Small Area Fair Market Rent (SAFM), which is designed to give Section 8 housing voucher recipients more choice in where to live. In yet another reminder of why the courts are so important, the district court of Washington, D.C. ruled last month that HUD must enforce the Obama-era anti-segregation measure beginning January 1st, 2018 as originally scheduled.
Not only would the SAFM rule give recipients more choice, they would also be protected from price gouging. HUD calculates “fair market rent” by averaging rents across a metro area. The subsidy is capped at the fair market rent value. The vouchers often fall short of the amount needed to cover the rent unless the recipient lives in a low-income or impoverished area. Because many voucher recipients are people of color, one could argue that the program was actually reinforcing segregation. The Obama-era SAFM rule made a small but important change-fair market rent would be calculated by averaging a nearby zip code rather than across an entire are, allowing the value of the voucher to rise.
SAFM was vetted for a number of years, and Carson gave little explanation for wanting to delay it. It is yet to be seen whether Carson will appeal the district court’s ruling.
But there’s more than one way to breach the castle walls. If starving the inhabitants doesn’t succeed, this administration will surely man the catapults. On Friday, HUD announced it will delay enforcement of a second Obama-era rule, the Affirmatively Furthering Fair Housing (AFFH) rule that would have required communities to address patterns of racial segregation.
Under AFFH communities must review their housing policies in regard to segregation and submit a plan known as an Assessment of Fair Housing (AFH) to address any abuses. Failure to submit a plan could cause communities to lose block grants and aid from the government. Carson didn’t repeal the rule outright, but again is trying to delay further implementation.
Based on his history, Carson’s delaying tactics are likely intended to undermine anti-segregation efforts and HUD itself. In 2015, he wrote an op-ed calling the AFFH rule “an experiment in failed socialism. Carson’s activity at HUD is part of a broader pattern by the Trump administration to undo anything Obama accomplished. And Trump’s actions in general certainly give credence to the old adage-Like father, like son.
posted by Amy Levengood
Vetting doesn’t seem to be Donald Trump’s forte. One has to look no further than his 2016 campaign team to know this isn’t an alternative fact. Corey Lewandowski, Paul Manafort, and George Papadopoulos turned out to be less than savory characters. Michael Flynn, Seb Gorka, Tom Price, and “The Mooch” shouldn’t have made it past the first interview. And let’s not even get into HUD regional appointee Lynne Patton. Her resume’s a beaut! Trump tapped the former wedding planner and event coordinator to manage the nation’s largest Section 8 program along with its billion dollar budget.
Given this track record, you would think the Senate would certainly scrutinize the administration’s nominees with laser-like precision, especially when said nominees have the potential of influencing policy for decades to come. But we now live in the Trump era where up is down and left is right and norms are left on the mat like an unfinished game of Twister.
On December 12th in a narrow 50-48 party-line vote, the Senate confirmed Leonard Steven Grasz to serve on the 8th U.S. Circuit Court of Appeals. Grasz was Nebraska’s chief deputy attorney general for more than eleven years and served as general counsel to the Nebraska Republican Party. “What’s the problem?” you may ask.
Even if Trump didn’t go over this particular nominee with a fine tooth comb, Republican Senators who gave the nod to Grasz can’t claim ignorance. Prior to confirmation proceedings, Grasz was given a rare and unanimous “not qualified” rating by the American Bar Association (ABA). In assigning the rating, the ABA cited concerns which were raised in confidential interviews with Grasz’s colleagues that he wouldn’t be able to set aside his conservative ideological beliefs. Both Nebraska Senators, Ben Sasse and Deb Fischer, recommended Grasz for the position and defended him during the process. Other Republicans have dismissed the ABA as partisan and called its rating a “hit job”.
The “concerns” of Grasz’s colleagues are shared by Democrats and liberal advocacy groups, but what are they? Grasz once referred to the legacy of Roe v. Wade as a “moral bankruptcy”. In another opinion he wrote, he said it was a “grave danger” for Nebraska’s Supreme Court to recognize same-sex marriages from other states and that legislation refusing to recognize such marriages could be defended against unconstitutionality.
Grasz is only the third nominee since 1989 to have been given a “not qualified” rating by the ABA, but he’s got company in the current administration. Brett Talley, who Trump chose to serve as district judge in Alabama, has also received a unanimous “not qualified” rating. In fact Talley has never even tried a case in court.
To put things in perspective, in less than a year in office, the Trump administration has seen 12 of its appellate court nominees confirmed. President Obama had 3 with none of his nominees receiving the ABA’s “not qualified” rating.
Democrats are not only questioning the quality of Trump’s nominees, but also the speed at which they’re being pushed through the confirmation process. Sen. Dianne Feinstein is worried that the Judiciary Committee’s ability to properly vet these nominees appointed to lifetime positions is being compromised. “I’m concerned our role is becoming diminished,” Feinstein said on Nov. 30. “Our committee has never been a rubber stamp for any president’s nominee, and I don’t think we should start now.”
Midterms are in November. Congress and the White House have less than a year to spruce up their own resumes. I’d be guessing, but I’d bet the electorate won’t be so permissive when it comes to vetting them.
posted by Amy Levengood
“Despite press reports that the Chairman of the Judiciary Committee now may be considering changing the Committee’s practice of observing senatorial courtesy, we, as a Conference, expect it to be observed, even-handedly and regardless of party affiliation. And we will act to preserve this principle and the rights of our colleagues if it is not.”
What short memories members of congress seem to have. The quote above is an excerpt from a letter signed by every GOP senator including Chuck Grassley (R-IA) and Mitch McConnell (R-KY) and sent to President Obama in 2009 warning that they wouldn’t allow judicial nominees to move forward if they weren’t first approved using the “blue slip” process.
That was in 2009, when Republicans had neither a majority in the Senate nor an ideological ally in the White House. Now it’s 2017 and my, how things have changed! When it comes to Trump’s nominees, McConnell and Grassley are doing a politically expedient about face. Grassley, the current chair of the Senate Judiciary Committee, announced last week that he would allow hearings to proceed for two nominees despite the fact that their home state senators had not returned positive blue slips.
So what's a blue slip?
The blue slip process is a tradition of "senatorial courtesy" that actually dates back to the very origins of our republic.
In 1789 George Washington sent particular senators his list of nominees for port tax collectors. Next to the nominee's name, a clerk noted each senator's vote of either approval or dissent.
Every nominee received an "aye" except for poor Benjamin Fishbourn of Georgia. (Fishbourn was opposed by GA Senator James Gunn who preferred a candidate who was a close political ally.) Fishbourn became the first presidential nominee to be rejected by the Senate. This is where the tradition began.
There are two versions of the blue slip, one in the House and one in the Senate. The House version involves tax and spending bills. In the Senate "blue slip" refers to the letter printed on blue paper (thus the term) sent to home state senators from the chair of the Judiciary Committee, allowing them to weigh in on a particular judicial nominee.
One of the earliest examples of a blue slip from 1917.
It's been a longstanding tradition of the Senate Judiciary Committee that both home state senators of a nominee, even if they're not on the committee, must turn in the blue slip in order for the committee to move the nominee forward for consideration. Senators may also choose to not return a blue slip on the candidate, and in the past this often meant that the nominee wouldn't get a hearing. A "negative" blue slip was seen as a veto, and the chairman would refuse to move the nomination forward. Either way, the blue slip gave the Senate a participatory role in both the advisory and consent part of the process. A role, which many believed, ensured a qualified and mainstream judiciary.
That’s what Senator Grassley said in 2015. But now, on November 29th in fact, the Senate Judiciary Committee will consider two circuit court nominees who have not received the support of both of their home state senators: Kyle Duncan of Louisiana (nominated for the 5th Circuit Court of Appeals) and David Stras of Minnesota (nominated for the 8th Circuit Court of Appeals).
Reviews from home state senators on both Stras and Duncan are mixed. Senator Amy Klobuchar has returned a favorable blue slip on Stras, but Senator Al Franken has decided to withhold his because he fears Stras’ would be a “deeply conservative jurist. Louisiana Senator Bill Cassidy (of Graham-Cassidy fame) approved of Duncan’s nomination; Louisiana’s other Republican senator, John Kennedy has yet to return his blue slip.
If we take a closer look at Kyle Duncan’s record, we get a better understanding of the kind of judicial candidates the blue slip was designed to prevent.
What we know about Kyle Duncan:
He was raised in Baton Rouge and was Louisiana’s solicitor general from 2008 to 2012. Duncan has never been a judge, but he has what some have called “sterling credentials with right wing political activists”.
The blue slip was designed to block extremist nominees like Kyle Duncan. The tradition also gives the party that's not in power some say in the process. “Blue slips are one of the few weapons that are left to protect the minority’s rights,” said Carl Tobias, a University of Richmond law professor and an expert on the judicial nominations process. “They also protect home state senators’ prerogatives to affect who is nominated from their states, which could be important for GOP senators who disagree with Trump.”
A recent memo from Grassley’s staff stated, “A blue slip policy allowing a single senator to block a nominee from even receiving Committee consideration is a more extreme example of a counter-majoritarian practice.”
Chuck Grassley doesn’t face his electorate for another 6 years. But some of his colleagues in the Senate won’t be as lucky. Come 2018, if they continue to ignore Senate tradition they won't have to worry about about returning blue slips. They'll be getting pink slips from us!
Learn more about the judicial process on our Federal Court System page.
For more information on judicial nominees go to the Alliance for Justice at www.afj.org.
What's At Stake With The Judiciary
140 federal judicial vacancies
19 in circuit courts
121 in district courts
52 judicial emergencies
10 for circuit courts
42 for district courts
46 nominees to the federal bench
10 circuit court
36 district court
19 nominees pending on the floor
posted by Amy Levengood