Judges Matter

The decision to fix filibusters will have real world consequences.

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Senate Majority Leader Harry Reid, shown Nov. 21, 2013, was hospitalized early Friday after not feeling well.

DENVER – If you care about reproductive rights, the environment or worker rights, the decision by Senate Majority Leader Harry Reid and the chamber's Democrats – including courageous votes by this state's senators, Mark Udall and Michael Bennet – Thursday to reform the filibuster on presidential appointments matters. A lot.

This is not just inside-the-Beltway jabberwocky. Invoking the "nuclear option" so that a simple, 51-vote majority is all that's needed to confirm judges below the Supreme Court level and other presidential appointments will have a profound effect on the everyday lives of many Americans. Courts are missing judges thanks to an unprecedented refusal by Republicans to confirm the president's nominees. This is purely political, not about qualifications: as Senate Republicans have bluntly admitted, all Obama nominees are bad.

And this obstruction has real world consequences both in terms of shorthanded courts and the decisions they make.

[See a collection of political cartoons on Congress.]

So, for example, the 10th Circuit Court of Appeals, which is located here in Denver and handles all federal court appeals for not only Colorado but also Kansas, New Mexico, Oklahoma, Utah and Wyoming, has two vacancies thanks to GOP filibustering. And as Colorado Ethics Watch has noted, 98 percent of all federal appeals are decided at the Circuit Court level, meaning that, "decisions of the 10th Circuit on important issues such as the environment and federal land policy, reproductive freedom, voting rights and money in politics, and civil rights are often final and binding for the states in the Circuit." 

In addition to refusing to act on qualified judges to the 10th Circuit, Republicans have repeatedly blocked qualified judicial nominees to the District of Columbia Circuit Court. Per Ethics Watch, "The D.C. Circuit is a traditional stepping-stone to the U.S. Supreme Court, with four of the current justices having previously sat on the D.C. Circuit. Currently, three of the D.C. Circuit's 11 judgeships are vacant, including one that has been open since its previous occupant, John Roberts, was confirmed chief justice of the United States in 2005."

Judicial vacancies and court rulings matter. Without fair courts that have diverse and impartial judges, we won't have justice when it comes to women's health and reproductive rights.

[Vote: Was the Senate Right to Use the 'Nuclear Option'?]

To wit, on November 1, with three judicial vacancies thanks to Republican obstruction and no Obama nominees on the bench,  the D.C. Circuit Court ruled that the Affordable Care Act's requirement that employers provide contraception in their health insurance plans violated religious freedom. Denver's 10th Circuit, with two Republican-blocked vacancies, decided a similar case the same way, setting up a Supreme Court challenge on whether or not women have the right to birth control regardless of their employers' religious beliefs. This has profound and dangerous implications even beyond reproductive rights: it threatens to upend the very notion of secular labor law. What if an employer decided their religious beliefs meant they didn't have to pay Social Security taxes, follow wage and hour guidelines, or hire workers of a different race?

So this isn't some arcane procedural maneuver by the Senate, it's the end result of the Republican Party refusing to respect a Democratic president. As for the argument from the right that a future Republican majority will use this move against Democrats: Republicans have broken every deal they've made so far to avoid the "nuclear option." There's little doubt that they'd change the rules anyway if they magically got the majority.

At least this way a Democratic President, Barack Obama, sees that he, his judicial nominees and appointments, and the American people get a bit more justice.

  • Read Peter Fenn: 8 Things Obama Must Do Now to Win the Health Care Fight
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  • Corrected on : Corrected 11/22/13: The original version of this post incorrectly stated the number of vacancies on the 10th Circuit Court of Appeals.