Editorials and Opinion
Catch of the Day: Redefining Obstruction (Bloomberg News, 08/25/14)
Jonathan Bernstein column: "even after the "nuclear option" reform in the Senate last fall, President Barack Obama's federal court nominees still wait longer for confirmation than their predecessors under previous presidents....I should stress that these are in many cases delays of non-controversial nominees.... Unfortunately, Republicans simply haven’t abided by longstanding Senate norms. After Obama's election, they suddenly insisted that every nomination required 60 votes -- an unprecedented hurdle. They blockaded multiple nominations to the DC Circuit Court. They have, before and after filibuster reform, used Senate rules to delay even nominations that they have intended ultimately to support. Since reform, they have imposed the maximum delay on every single judicial nominee.... if Republicans win a Senate majority in November, they may simply shut down all nominations for two full years. That would be absolutely outrageous."
Yes, Republicans Really Are Unprecedented in Their Obstructionism (Mother Jones, 08/25/14)
Kevin Drum: "for Obama. His numbers for his first five years are far, far higher than Bush's even though Bush's are inflated by delays during his final year in office. It's just another example of the fact that, no, both parties aren't equally at fault for the current level of government dysfunction. Republicans greeted Obama's inauguration with an active plan of maximal obstruction of everything he did, regardless of what it was or how necessary it might be in the face of an epic economic collapse. No other party in recent history has done that."
EDITORIAL: Clean water not something to be taken for granted (Observer-Reporter [PA], 08/09/14)
"Responding to court decisions that weakened the Clean Water Act during the last decade, the Environmental Protection Agency and the U.S. Army Corps of Engineers are now attempting to close loopholes in the law that prevents it from protecting 2 million miles of streams and at least 20 million acres of wetlands around the country. Of course, these wetlands and streams feed into rivers that are our primary sources for drinking water, so conservation efforts aimed at these tributaries would be good for us all and a boon to fishermen, since many fish spawn in small streams."
EDITORIAL: Congress and its unearned vacation (Kansas City Star, 08/08/14)
"Then there are all of the long-term challenges that Congress won’t confront in any serious way:... Many of the president’s nominees to be judges and ambassadors remain in limbo."
EDITORIAL: As Arcara prepares to scale back, Washington needs to do its job (Buffalo News [NY], 07/30/14)
"[L]et us urge the U.S. Senate to move swiftly in confirmation of two new judges desperately needed, one of whom has already been recommended.... And to make matters worse, if the Senate drags its collective feet too long, say until 2015, there is a chance that the entire landscape could have changed if Republicans regain control of the Senate in the November election. There’s a good chance Republicans will reject all of Obama’s judicial nominees. Time is of the essence. But the dockets are choked with cases....There is an opportunity here, as Arcara has noted. With two new judges, along with his and Skretny’s willingness to continue hearing cases, it is possible to significantly reduce the backlog of cases."
Opinion: The absurdity of [appeals] court’s health care ruling (Record [NJ] , 07/28/14)
Prof. Frank Askin: "the two Republican judges sitting on the U.S. Court of Appeals for the District of Columbia blindly adopted the bizarre argument of the law’s challengers that under a literal reading of the statute only state enrollees were entitled to the subsidies.
On the same day, another federal appeals court sitting in Virginia unanimously ruled the other way. In that decision, Judge Andre Davis ridiculed the argument adopted by the two majority judges in D.C."
Sentinel Editorial: Two federal appeals panels diverge on health care reform (Keene Sentinel [NH], 07/28/14)
"Judge Thomas B. Griffith, in the D.C. ruling, guessed that Congress failed to include the federal exchange in the wording of that key clause intentionally, as an incentive to states to form their own exchanges. That seems quite a leap in logic. What the Democratic-controlled Congress unquestionably intended in 2010 — what was the very reason for constructing the law in the first place — was to provide affordable health care access to all Americans in every state. Any other interpretation of its intent is ludicrous."
EDITORIAL: Unhealthy sign: Federal courts differ on ACA insurance premiums (Pittsburgh Post-Gazette [PA] , 07/27/14)
"On Tuesday, a panel of the U.S. Court of Appeals for the District of Columbia ruled 2-1 that the IRS could not authorize payments of premium subsidies in states that use the federal exchange.... The wording is something of a drafting error, but the intention of the law is clear and supports a broader reading.
If the D.C. court reconvenes at full strength it may reverse itself, but the U.S. Supreme Court may decide to intervene. That is cause for concern, given its reputation for judicial activism of a conservative stripe."
EDITORIAL: WE SAY AFFORDABLE CARE ACT Subsidies clear intent of Obamacare (Austin American-Statesman [TX] , 07/27/14)
"The 4th Circuit's reasoned view is that no one seriously can doubt the law intends for subsidies to be available for individuals whether they buy insurance on an exchange created by a state or by the federal government....If the D.C. court's view prevails, then Congress would have to rewrite the law to save the subsidies available on the federal exchange. That would appear to be an impossible order, given that Republicans want to see the law repealed and would resist squaring the law's language with its obvious intent."
EDITORIAL: Save the subsidies (Greensboro News & Record [NC], 07/25/14)
"The D.C. Circuit Court panel split hairs in its 2-1 ruling. ... Yet, Congress really did intend to offer subsidies to all Americans, not just to those in some states, according to a contrary ruling the same day by a unanimous panel of the Fourth Circuit U.S. Court of Appeals in Richmond.... Politics seems to influence the courts as well. The three judges on the Richmond panel were appointed by Democratic presidents. The two who produced the majority opinion in Washington were nominated by Republican presidents. If the full D.C. court hears the case on appeal, a reversal is expected because most of the court’s judges are Democratic appointees....Whether the enrollment mechanism is a federal or state exchange shouldn’t matter, and judges should apply common sense to their final decision."
EDITORIAL: Court ruling threatens viability of Obamacare (Asbury Park Press [NJ], 07/25/14)
"If that ruling by the D.C. Circuit Court of Appeals holds up through an appeals process that could end in the Supreme Court, millions of people with subsidized insurance could suddenly find their policies well beyond their means. ...Another circuit-court panel in Virginia on Tuesday on a similar challenge to Obamacare unanimously arrived at the opposite — and correct — conclusion that the law was not designed to limit subsidies to the state exchanges. ... The D.C. Court’s ruling is galling enough in that it likely was influenced by partisanship — the majority judges in the 2-1 vote were both Republican-appointed. ... It doesn’t deserve to die on a partisan judicial sword over an unintended language technicality."
Do Republicans Warrant Being the Majority Party in Both Houses? (Huffington Post, 07/24/14)
Byron Williams: "Utilizing the rules of the Senate, Republicans have succeeded in blocking more of President Obama's judicial nominations than the combined total of his predecessors. Elections have consequences; at least they should, but not in the current GOP world."
EDITORIAL: Fix, don’t gut, health-care law; Congress and the courts can’t allow a bad ruling to deny affordable health insurance to millions of Americans (Toledo Blade [OH] , 07/24/14)
"A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled that consumers who buy insurance from federal exchanges created by the Affordable Care Act are not eligible for income-based tax credits ... ruled the two GOP-appointed judges who formed the panel’s majority.... If the D.C. circuit’s ruling stands, millions of Americans would face a hopeless choice between paying premiums they can’t afford or remaining uninsured. ... The full D.C. appellate court — and if necessary, the Supreme Court — should reverse the panel’s excessively narrow opinion.... The D.C. circuit’s ruling is wrong and worrisome, but need not and should not be the last word. Avoiding that outcome will require higher courts and Congress to do their jobs, rather than kill successful health-care reform by default."
EDITORIAL Our View | Affordable Care Act Obamacare ruling is nonsensical, and so is Sen. Ron Johnson's quixotic lawsuit (Milwaukee Journal Sentinel [WI], 07/24/14)
"The assault on Obamacare and common sense continues even as evidence piles up that the law is working for millions of Americans. But tell that to two Republican-appointed judges on the U.S. Court of Appeals in Washington, D.C., who ruled this week that the Affordable Care Act only authorizes subsidies for customers of marketplaces actually run by the states. In other words, Judges Thomas B. Griffith and A. Raymond Randolph ignored the clear intent of Congress and of the law. ...The administration plans to appeal the decision of the three-judge panel to the full 11-member appeals court. A decision by another federal appeals court sitting just down the road in Richmond, Va., meantime, found that the subsidies can be applied in all states."
EDITORIAL: Obamacare ruling: 2 judges, 6 words and millions at risk (Minneapolis Star Tribune [MN] , 07/24/14)
"[A] three-judge panel for the D.C. Circuit struck down the federal exchange subsidies in a 2-1 ruling ... This conclusion flouts a respected legal precedent that gives federal agencies wide latitude in interpreting ambiguous legislative language. It also flies in the face of common sense."
A conservative judiciary run amok (Washington Post, 07/23/14)
E.J. Dionne Jr.: "By effectively gutting the Affordable Care Act on Tuesday, two members of a three-judge panel on the D.C. Circuit Court of Appeals showed how far right-leaning jurists have strayed from such impartiality. We are confronted with a conservative judiciary that will use any argument it can muster to win ideological victories that elude their side in the elected branches of our government. Fortunately, the D.C. Circuit ruling is unlikely to stand. On the same day the D.C. panel issued its opinion, a three-judge panel from the 4th Circuit ruled unanimously the other way, upholding the law. There is a good chance that the 11-judge D.C. Circuit will take the decision away from its panel — something it is usually reluctant to do — and rule as a full court to affirm the ACA as commonly understood."
EDITORIAL: Obamacare takes a hit; Conflicting rulings could end up in Supreme Court (Register Guard [OR] , 07/23/14)
"In the first ruling, the U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 that the tax credits provided under ACA can be offered only to states that set up their own marketplaces ... A split between the two appeals courts over the question of Obamacare subsidies would lead to nearly certain Supreme Court intervention. It’s possible the full D.C. appeals court, dominated by Democratic appointees, will overturn its panel’s ruling. Even if both full appeals courts uphold the subsidies, the Supreme Court could still intervene, with the outcome anyone’s guess. ... If the ACA’s promising reforms fall prey to a legal challenge and millions of Americans lose their insurance, the blame will lie with Republicans in Congress who have blocked efforts to fix the glitches and the unexpected consequences that are inevitable in any legislation as large and sweeping as the ACA."
They're Not Harry Reid's Judges (Bloomberg News, 07/23/14)
Jonathan Bernstein: "the Senate minority blockaded three seats on the DC Circuit Court, and pledged to continue defeating any nominees for those positions for the duration of Obama's second term. Not only was this unprecedented, as far as I know the notion of reflexively blocking all presidential appointments had never occurred to a Senate majority before, let alone a minority. ...Given the election of a Democrat to the White House and a 55-to-45 Democratic majority in the Senate, Reid absolutely had to react. ...rom 2009 to 2013, Republicans began treating the routine nomination and confirmation of judges as some sort of extraordinary power grab. They accused Obama of “packing” the courts merely by exercising his constitutional obligation to appoint judges to vacancies. That intransigence made the filibuster untenable. When Republicans refused to abide by longstanding institutional norms, majority-imposed reform became necessary for the Senate to function at all."
EDITORIAL: Judges show partisanship in striking ACA subsidies (News & Observer [NC], 07/22/14)
"When the history of the Affordable Care Act is written, the figures who will look the most obstructive and shortsighted are not the tireless House Republicans who voted time and again to repeal the law or the state attorneys general who sued to block the law. The worst light will fall on those judges who failed in their duty to provide a fair reading of Congress’ intent and instead substituted their own personal and partisan views. First among this group will be the conservative members of the U.S. Supreme Court who voted in favor of declaring the law unconstitutional. Now two Republican judges on the Washington, D.C. Circuit Court have added their names to the roster of future ignominy. Judge Raymond Randolph, and Judge Thomas Griffith formed the majority in a 2-1 ruling ... the judges in the majority in the D.C. Circuit decision contorted their judgment to fit that political aim. Fortunately, the D.C. Circuit ruling is likely to be reversed on appeal to the entire D.C. Circuit Court where Democrats hold a majority."
Editorial: Subsidies essential to health care reform (Tampa Bay Times [FL], 07/22/14)
"It defies logic that Congress intended only to provide the premium subsidies in states that created their own marketplaces, and the courts should keep them in place.... Yet two conservative judges on a three-judge federal appeals court panel in Washington concluded Tuesday that the federal law only allows the subsidies to be offered in states with their own exchanges. They focus on one poorly worded provision in the complicated law and ignore its overall intent, rejecting the government's argument that their narrow reading would produce absurd results.... If the full appeals court panels examine fairly the intent of the Affordable Care Act, they will conclude the subsidies are legal and this issue will never reach the U.S. Supreme Court."
Diversity Milestone for Obama's Judicial Nominees (People For blog, 07/21/14)
"Ronnie White is the 100th person of color that President Obama has made a federal circuit or district court judge. That is more than twice the number at the same point in the George W. Bush Administration, and far exceeds Bush's total for his entire eight years in office. In fact, President Obama has had more minority judges confirmed than any other president."
No Winners, Only Losers, When it Comes to Judicial Vacancies (Brennan Center for Justice at NYU School of Law, 07/21/14)
Andrew Cohen: "What the conversation about judicial nominations sorely lacks is a broader look at the constitutional responsibility of the executive and legislative branches to consistently ensure that the third branch, the judiciary, has enough judges to ensure that the nation’s rule of law is fairly and evenly administered....there is no equal justice under law if people in this jurisdiction are treated differently from people in jurisdictions whose federal courts are fully-staffed. In this respect, the Brennan Center report also is important because of the candor it includes from judges most directly impacted by the nation’s empty benches."
EDITORIAL: At Long Last, Justice for Ronnie White (New York Times, 07/19/14)
"Mr. White’s well-deserved approval for the federal bench was at least 15 years overdue.... Republicans joined in partisan lockstep to block his confirmation after a smear campaign led by Senator John Ashcroft of Missouri. Mr. Ashcroft depicted Mr. White’s reasoned refusal to rubber-stamp prosecutorial calls for the death penalty in every case as evidence of “a tremendous bent toward criminal activity.”
At the time, Mr. Ashcroft was facing a tough re-election fight and seized on the death penalty as a wedge issue. His strategy included trumped-up charges against Mr. White, which culminated in the Senate’s vote to kill the nomination in October 1999."
Print headline: 15 years later, justice is served (Washington Post, 07/16/14)
Paul Kane: "By 2013, Sen. Claire McCaskill (D-Mo.), who holds Ashcroft’s old seat, pushed White for another nomination. After his 2001 testimony, some Republicans apologized to him, and Hatch told reporters at the time that Republicans wished they could “revisit” the White vote....On Wednesday, just one Republican, Sen. Susan Collins (Maine), supported White’s nomination. Hatch, again voting no, saw no sign of easing tensions on nomination fights for the rest of Obama’s term."
145 Nominees Still Can’t Do Their Jobs Because Republicans Won’t Do Theirs (Nation, 07/08/14)
George Zornick: "So why are these nominees waiting so long? Routine obstruction by Republican senators who are deliberately stretching out the confirmation process for virtually every nominee to come through the Senate. ... A report by Common Cause in May found nineteen examples of Republican senators chewing up cloture time on judicial nominees who were later confirmed unanimously by the Senate."
Editorial: No judge, no justice (Dallas Morning News, 07/04/14)
"In the current hyper-partisan gridlock of Washington, however, the nomination and confirmation process has virtually ground to a halt, leaving Texas with more unfilled seats on federal benches than any other state. Sens. John Cornyn and Ted Cruz need to pick up the pace in nominating applicants to fill these seats. ... In the current hyper-partisan gridlock of Washington, however, the nomination and confirmation process has virtually ground to a halt, leaving Texas with more unfilled seats on federal benches than any other state.
Sens. John Cornyn and Ted Cruz need to pick up the pace in nominating applicants to fill these seats....Why aren’t the names of nominees to fill the other vacancies already on the president’s desk, especially since many of those seats came open more than two years ago?"
Texas’ judicial backlog is finally being addressed (Dallas Morning News, 07/02/14)
Ashley Croswell, Letter to the Editor: "It is exciting to see that the judicial vacancy crisis in Texas is beginning to be remedied. Those vacancies have created a 12,000-plus-case backlog, totaling 19 years’ worth of work not done in our federal courts. Our federal courts are often the principal protectors of our natural resources. Defenders of the environment turn to federal courts to hold accountable those that jeopardize our health and the health of our planet. Federal courts can be the last resort for environmental justice. That is why judges who enforce laws that protect the environment are indispensable."