Legislative Updates
Avril Lighty
“Don’t Ask Don’t Tell” Repeal
President Obama signed a
law repealing the military’s “Don’t Ask, Don’t Tell” policy (DADT) on December
22, 2010. The policy had prohibited openly gay and lesbian people from serving
in the armed forces. The law repealing DADT specified that repeal would not
take effect until 60 days after the president, the secretary of defense and the
chair of the Joint Chiefs of Staff certified that eliminating the policy would
not diminish combat readiness. The certification was made on July 22, 2011, and
set the date for the official end of the policy for September 20.
Since the policy was established in 1993, more than 13,000 men and women had been expelled from the military because of their sexual orientation. Civil and human rights organizations had opposed the policy, arguing that DADT turned its back on the principle that people who are willing and able to do a job should be given a fair opportunity to do it. At the same time, according to civil and human rights advocates, DADT also ignored decades of evidence, including the examples of military forces in many other countries, and even many compelling individual cases in the U.S. armed forces, which clearly showed that gays and lesbians could serve openly and honorably in the military.
Judicial Nominations
Federal
judicial vacancies remained high due to the Senate’s failure to overcome the
obstructionist tactics of the minority party, which continued to threaten
filibusters and use anonymous “holds” to delay or prevent confirmation votes.
In 2011, the Senate confirmed only 62 of President Obama’s nominees, and left
for its end-of-year recess without taking votes on 19 nominees—all but one of
whom had no opposition or only token opposition in the Judiciary Committee.
The slow pace of nominations is affecting millions of people across the country for whom justice delayed is justice denied. As of December 31, 2011, there were 103 current or future vacancies on the federal bench, including 32 deemed to be “judicial emergencies” by the Administrative Office of the U.S. Courts due to excessive caseloads or exceptionally long vacancies. There are still 47 nominees pending in the Senate, although more than half of them (25) have passed through the Judiciary Committee and are waiting for a floor vote.
Three high-profile nominees the civil and human rights coalition supported in 2011 were Edward Chen, Goodwin Liu, and Caitlin Halligan.
On May 10, the Senate voted to confirm Chen’s nom-ination to the U.S. District Court for the Northern District of California. Chen had served as a U.S. magistrate judge for 10 years. He was first nominated to the court on August 7, 2009, and voted out of the Senate Judiciary Committee two months later. However, due to an unprecedented level of obstruction, Chen’s nomination languished for nearly two years, forcing Obama to renominate him three times.
Liu, an acclaimed scholar, was nominated by Obama for a seat on the U.S. Court of Appeals for the Ninth Circuit on February 24, 2010, and the Senate Judiciary Committee first approved his nomination on May 13, 2010. Liu’s nomination languished for more than a year and was voted out of committee for the third time on April 8, 2011, but a Republican-led filibuster in May denied him a full vote in the Senate. Given the unprecedented level of obstruction to his nomination, Liu withdrew his name from consideration on May 25, 2011. In July 2011, California Governor Jerry Brown nominated Liu to a seat on the California Supreme Court, and three months later, on August 31, 2011, the state Commission on Judicial Appointments voted unanimously to confirm him.
Halligan’s nomination to the U.S. Court of Appeals for the D.C. Circuit was blocked by Republicans on December 6, 2011. Halligan had been nominated by Obama in September 2010, and approved by the Senate Judiciary Committee in March 2011 on a 10-8 party-line vote. In addition to the backing of the civil rights coalition, Halligan, a former solicitor general for New York, had received endorsements from former Bush nominee to the D.C. Circuit, Miguel Estrada, the National Conference of Women’s Bar Associations, the National District Attorneys Association, the New York Association of Chiefs of Police, and the New York State Sheriffs Association. The obstruction has left the D.C. Circuit, widely regarded as the second most important court in the United States after the U.S. Supreme Court, operating with only 75 percent of its judgeships filled.
Health Care Reform
Minutes after Obama signed the Affordable Care Act into law
in March of 2010, the first challenge to the law’s constitutionality was filed
in federal court. Since then, more than two dozen challenges have been filed,
with only one appellate court—the U.S. Court of Appeals for the 11th
Circuit—declaring
the individual mandate (the requirement to purchase health insurance)
unconstitutional, while upholding the remainder of the law. That case, which
has been filed by 26 states and a business group, has been accepted for review
by the U.S. Supreme Court this term.
The Court said it would hear arguments on four questions:
- Is it constitutional to require Americans to buy health insurance by 2014 or pay a penalty if they don’t?
- If the requirement to buy insurance is unconstitutional, is the whole law unconstitutional?
- Can Congress demand that states expand Medicaid by threatening to withhold federal funding?
- Is the requirement to pay a penalty a tax, and therefore not subject to challenge until someone is required to pay it?
The Court will hear five and one-half hours of oral arguments in the spring of 2012 and a decision is expected before the term ends in June 2012.
Avril Lighty is the communications associate for The Leadership Conference on Civil and Human Rights and The Leadership Conference Education Fund.
