Tracking the latest developments in the fight for a fair America
By William Yeomans
Fellow in Law and Government at American University
Washington College of Law
Following the October oral argument in Schuette v. Coalition to Defend Affirmative Action, I wrote for this blog that the Court appeared poised to continue “its relentless march toward evisceration of remedies for racial discrimination.” That prediction was fulfilled yesterday when the Court issued its opinion, upholding the authority of the people of Michigan to amend the state constitution by referendum to prohibit consideration of race in university admissions. The vote was 6-2 in favor of the ban. Justice Breyer joined the five conservatives, Justice Sotomayor, joined by justice Ginsburg, wrote a vigorous and lengthy dissent, and Justice Kagan recused herself, presumably because she participated in the case as Solicitor General. Of course, because each Justice is free to choose to recuse or participate without the need to state a reason, we, the taxpayers, will never know for sure.
My previous post described more fully the facts and procedural posture of the case. Briefly, following the Court’s validation of the race-conscious admission process of the University of Michigan Law School in Grutter v. Bollinger, Ward Connerly launched a referendum drive to ban consideration of race from all elements of public life in Michigan, including university admissions. The people of Michigan approved the referendum by a vote split along racial lines; whites overwhelmingly supported it and African Americans overwhelmingly opposed it. The white majority voted to deny minority applicants a benefit that the Supreme Court had declared lawful and Michigan’s universities wished to continue. Referenda are rarely kind to minority rights. Read more
By Erika K. Duthely
AFJ Dorot Law Fellow
UPDATE, APRIL 20, 2014: General Mills has given in to public pressure and reversed the policy described below. But even in the blog post announcing the reversal, the company continues to mislead consumers about what forced arbitration really does. And, of course, other companies continue to impose forced arbitration clauses on consumers and employees. So we still need the Arbitration Fairness Act.
Take action. Tell Congress to stop General Mills – or any other company – from putting “Trix” in the fine print.
Read more about Forced Arbitration.
Did you enjoy a bowl of cereal this morning, like so many other Americans? Well, you may want to reconsider next time you pick up that spoonful of Cheerios.
Increasing numbers of companies have begun including these clauses in their terms of service, ever since the Supreme Court ruled in AT&T Mobility v. Concepcion that federal arbitration law – allowing for such arbitration clauses—preempts all state laws that may limit their use. This was made even worse when the Supreme Court decided in American Express Co. v. Italian Colors Restaurant that corporations can enforce class action bans in arbitration agreements even when doing so would make it effectively impossible for individuals and small businesses to vindicate their legal rights. Although there was a flood of forced arbitration clauses that hit the market after these decisions, General Mills is the first large food company to include such a clause, which has dangerous implications for public safety.
This is unacceptable. Americans have the right to have their day in court and we cannot continue to let big businesses take this right away from us. There is a solution. The Arbitration Fairness Act would put an end to these injustices.
Take action. Tell Congress to stop General Mills – or any other company – from putting “Trix” in the fine print.
Read more about Forced Arbitration.
By Isaiah Castilla
Counsel, Bolder Advocacy
In a March 27 letter to the IRS, Alliance for Justice called on the Service to issue an immediate clarification about the treatment of activities to influence executive and judicial appointments and nominations made in the recent Notice of Proposed Rulemaking (“NPRM”): Guidance for Tax-Exempt Social Welfare Organizations on Candidate-Related Political Activities.
The NPRM proposes to include executive and judicial appointees and nominees within the definition of “candidate.” By defining executive and judicial nominations as candidates, 501(c)(4) organizations would have to treat their efforts to influence those nominations as “political” and count that work as partisan political activity.
We vehemently oppose this proposal, as we indicated in thecomments we submitted to the IRS on February 27. Our letter, however, calls on the IRS to retract its justification for this erroneous position on executive and judicial branch nominees. The Service’s purported rationale was that this definition would have very little impact on organizations because efforts to influence executive and judicial branch nominees are already included as exempt function (or political) activity. There’s one problem – that’s untrue.
The truth is that in 1988, the IRS announced that it was seeking comments on whether activities to influence judicial nominations should be included in the definition of exempt function activity under IRC § 527 and that any future decision on this question would be implemented prospectively only (see Ann. 88-114, 1988-37 I.R.B. 26). To date, the IRS has never announced a resolution of this question.
We ask the IRS to retract its erroneous statement immediately. Otherwise, 501(c)(3)s and other tax-exempt organizations will be misled into believing they are currently subject to tax on their expenditures for attempts to influence judicial and executive branch nominations.
We’re anxiously awaiting the Service’s response. Click here to read AFJ’s letter.
More about nonprofit advocacy at www.bolderadvocacy.org
“Forced arbitration” undermines
our civil rights laws
By Michelle D. Schwartz
AFJ Director of Justice Programs
When I was a teenager, I spent two summers working as a counselor at a day camp in suburban New Jersey. Toward the end of the second summer, I received an offer to return the following year. Later that day, I happened to be chatting with a friend who had similarly received an offer to return—for several hundred dollars more.
We had both worked at the camp for two summers, held the same job, were the exact same age and at the exact same educational level, and were well-liked and recognized as hard workers.
The only difference? He’s a man.“As long as employers are permitted to opt out of federal laws through forced arbitration, the promise of equal pay will never be fully realized.”I was angry, but I was left with little recourse other than fuming. That’s because my terms of employment forbade me from discussing my salary with anyone. So did my friend’s—so my speaking up could get him in trouble as well. So I stayed quiet, and I chose to pursue different opportunities the following summer.
For most American women, pay discrimination is far more insidious. American women make, on average, 77 cents for every dollar men make. That wage gap means that the average American woman had to keep working until today—April 8, 2014—just to earn what a man made in 2013. And it means that women—often the sole or primary breadwinners—have less ability to provide for themselves and their families.
Yet just as they could half my lifetime ago, employers today can and do prevent their employees from, and penalize their employees for, discussing their pay with coworkers. As a result, it is often virtually impossible for women to learn that they’re being discriminated against. And, on the off chance women do learn such information, it’s even harder for them to fight back.
Today, President Obama is signing an Executive Order that would prohibit government contractors from retaliating against their employees for simply discussing their pay with one another. And the Senate this week will vote on the Paycheck Fairness Act, which, among other things, would extend that anti-retaliation rule to all employers. Those are both important steps that Alliance for Justice strongly supports.
But as long as employers are permitted to opt out of federal laws through forced arbitration, the promise of equal pay will never be fully realized.
Increasingly, employment and consumer contracts include fine print that forces Americans to sign away their right to go to court—and instead directs them into arbitration, a system of privatized dispute resolution that is rigged to benefit corporations.
A series of bad Supreme Court decisions has upheld forced arbitration even where it means that workers, consumers, and even small businesses have no way of vindicating rights enshrined in landmark federal laws. Laws put at risk include Title VII, the Equal Pay Act, and the Lilly Ledbetter Fair Pay Act.
Recently, the Oakland Raiderettes fell down the forced arbitration rabbit hole when they brought a suit seeking fair pay.
As AFJ President Nan Aron wrote in the San Francisco Chronicle:
The Raiderette cheerleaders are trying to sue the Raiders because they’re paid only $125 per game and even that money is withheld until the end of the season. But the Raiders may be able to intercept the suit before it ever gets to court. The cheerleader contract has a forced arbitration clause requiring them to take their dispute to – seriously – the commissioner of the National Football League.
Fortunately, there is a way to protect the gains we’ve made—and any more that are yet to come. It’s called the Arbitration Fairness Act, and it would ban forced arbitration in consumer, employment, and civil rights disputes.
On this Equal Pay Day, let’s celebrate the President’s executive action, fight for the Paycheck Fairness Act, and urge our representatives to pass the Arbitration Fairness Act without delay.
By Kyle C. Barry
AFJ Legislative Counsel
Last week, the Heritage Foundation’s Elizabeth Slattery attacked a Washington Post article about the recent uptick in confirmations for President Obama’s judicial nominees, using it to argue that the Senate has treated Obama’s nominees more favorably than those of President George W. Bush. Slattery’s piece presents a one-sided and ultimately flawed analysis that omits key data points, and fails to acknowledge how Senate Republicans continue to obstruct the confirmation process and block the president from filling a growing list of judicial vacancies.
Following John Owens’ confirmation to the Ninth Circuit, the Post observed that 19 of Obama’s judicial nominees have been confirmed in 2014 so far (the best first-quarter of any year during his administration), and that Obama has now appointed 235 judges to the federal bench. The Post compared this to the 324 federal judges that Bush appointed during his entire two terms, and reasoned that “if the Senate keeps up close to its current pace, Obama might, after six years, get relatively close to Bush’s eight-year total.” In other words, the Washington Post concluded that things are looking up for Obama’s judicial nominees, even compared to President Bush.
But the Heritage Foundation claims the Post did not go far enough in explaining how conditions have improved for judicial nominees in the Senate. In a blog post titled “Washington Post Gets the Numbers Wrong on Judicial Nominees,” Slattery zeroes in on the total number of confirmations in the first 15 months of each president’s second term—62 for Obama, 28 for Bush—and uses this data to conclude that “Obama’s confirmation rate has actually been outpacing Bush’s 2-to-1.” “At this rate,” Slattery argues, “Obama is set to steamroll Bush’s total number of confirmations.”
The problem here is that simply comparing confirmation totals from an isolated 15 month period is hardly an adequate proxy for each president’s ability to fill vacancies and move nominees through the confirmation process. As an initial matter, the overall number of confirmations for Obama and Bush at this point in their presidencies is about the same—Obama has now appointed 235 federal judges, while Bush had appointed 233. Taking the full picture into account, Slattery’s “2-to-1” ratio is plainly arbitrary and incomplete.
Next, in any event, comparing the total number of confirmations is meaningless without also considering the number of vacancies each president could possibly fill, and the number of nominees the Senate could possibly confirm. Here, Obama has had 35 more total vacancies thus far in his presidency than Bush, and he’s also made 38 more nominations. That alone suggests that, all else being equal or more favorable to President Obama, he should have a much higher number of confirmations than President Bush. Moreover, Obama’s judicial confirmations have not kept pace with new vacancies. During his administration, the number of vacancies has increased by 30—from 55 to the current total of 85. Conversely, the confirmations of President Bush’s judicial nominees reduced the total number of vacancies by 27—from 80 when he took office, to 53 on April 1, 2006.
Given this discrepancy in the number of vacancies and nominations, both the rate of confirmations—the percentage of nominees that the Senate has confirmed—and the rate of judicial appointments—the percentage of vacancies the president has been able to fill—provide a far more useful comparison than the raw total of confirmations. And it’s here that Obama clearly lags behind Bush: Only 79% of Obama’s nominees have been confirmed compared to 89% at this same point for Bush; likewise, Obama has filled only 73% of the total judicial vacancies up to this point in his presidency, while Bush had filled about 82%. By these measures, which account for essential variables that the Heritage Foundation ignored, Bush fared significantly better in getting his nominees confirmed and staffing the federal judiciary.
Finally, Slattery’s analysis ignores the ways in which Republican obstruction contributes to Obama’s growing number of vacancies and relatively low confirmation rate. Currently, there’s a backlog of 31 judicial nominees waiting on the Senate floor for a confirmation vote, including six nominees to the vitally important circuit courts of appeals, which, because the Supreme Court hears so few cases, often have the final say on questions of federal law. All of these nominees could be confirmed quickly through unanimous consent or agreed-upon votes, the traditional means of confirming judges. But Senate Republicans have slowed the process by requiring a cloture vote on even the most noncontroversial nominees. For example, a trio of district court judges recently confirmed to the Eastern District of Michigan all failed to earn the 60 votes that Senate rules used to require to invoke cloture. They were then confirmed 98-0, 98-0, and 97-0, respectively, revealing that the demand for cloture votes was merely a charade intended only to waste time. Similarly, Tenth Circuit nominee Carolyn McHugh suffered through a meaningless 62-34 cloture vote despite having the home state support of Utah’s two Republican Senators. She was confirmed 98-0.
Vacancies also remain high because Republican Senators delay in recommending nominees for seats in their home states. As a result, 31 of the 37 current vacancies without a nominee are in a state with at least one Republican Senator, and 8 of those 31 are critical “judicial emergencies.” Regardless of how many confirmations the Senate records, Americans in these states will be denied justice as they wait for overburdened and understaffed courts to catch up with rising caseloads.
That 19 judges have been confirmed this year (and that Obama has now confirmed more judges at this point in his presidency than Bush) reflects real progress for the president’s judicial nominees. But focusing on that statistic alone masks the substantial work left to be done. In particular, as nominees wait in line for a vote and Republicans continue to waste valuable floor time, our federal justice system suffers. This isn’t the time for the Senate to accept delays and obstruction as the new normal of the confirmation process, or to celebrate what’s been accomplished so far. This is the time to make the health of our federal courts a priority and take action.