When two Oklahoma oil field workers left Nitro-Lift Technologies over a wage and hour dispute to work for a competitor, they weren’t expecting a notice from Nitro-Lift challenging their new employment. They learned that their employment contracts contained an agreement not to work for competitors for two years, even though they possessed no secret knowledge about the company or special certification – the types of factors that typically justify non-compete clauses. In fact, non-compete agreements of the type contained in their contracts are explicitly prohibited under Oklahoma law. But an attempt by the Oklahoma Supreme Court to enforce that law has been slapped down by the U.S. Supreme Court, which ruled Monday in a summary decision that the court was not permitted to intervene in the case.

This is because the contract they signed also contained another provision — a mandatory arbitration clause that requires all claims to go before a private arbitrator, rather than before a court of law. Although the state court, interpreting state arbitration law, determined that it had the authority to invalidate the non-compete agreement in spite of the arbitration clause, the U.S. Supreme Court said federal arbitration law applies. And under the Federal Arbitration Act, arbitration clauses rein supreme:

The Oklahoma Supreme Court’s decision disregards this Court’s precedents on the FAA … , which “declare[s] a national policy favoring arbitration” [...]

The state court insisted that its “[own] jurisprudence controls this issue” and permits review of a “contract submitted to arbitration where one party assert[s] that the underlying agreement [is] void and unenforceable.” But the Oklahoma Supreme Court must abide by the FAA, which is “the supreme Law of the Land,” and by the opinions of this Court interpreting that law. … Our cases hold that the FAA forecloses precisely this type of “judicial hostility towards arbitration.”

The U.S. Supreme Court’s decision marks the third time in two years that the court has put state judges in their place for seeking to soften the impact of harsh mandatory arbitration agreements. This decision was unanimous, and it is not particularly surprising. As Reuters’ Allison Frankel notes, the ruling “makes clear, once again for everyone who wasn’t listening, that the Federal Arbitration Act enjoys the complete confidence of the U.S. Supreme Court.” What’s more, the state court never decided whether the mandatory arbitration provision was unenforceable, instead holding that it could rule on the non-compete clause regardless. It was this failure to invalidate the arbitration agreement that proved fatal.

But what the Supreme Court calls “judicial hostility towards arbitration” reflects the practice’s unjust impact on individuals going up against corporations in a forum rigged against them. Monday’s ruling and others like it lead to the following perverse scenario:

• Even though the employees both lived and worked in Oklahoma, their arbitration agreement subjects them to the laws of Louisiana (the state where the company is based).
• To face the allegations against them, these hourly wage workers must now take off time and travel from Oklahoma to Houston, Texas – the forum selected by the arbitration clause, to argue that their behavior does not violate the agreement under Louisiana law.
• Even though non-compete clauses of the type employed by Nitro-Lift Technologies were deemed unlawful under Oklahoma law by Oklahoma’s highest court, that ruling is now irrelevant.
• Instead, this issue will be decided by an arbitrator, whose decisions are not subject to appeal. What’s more, as Public Citizen has pointed out, arbitrators are “not legally accountable for errors they make. Arbitrators are accountable only to the market, and the market for arbitrator services is dominated by ‘repeat players’ – litigants that are likely to hire arbitrators in the future. This creates a subtle incentive to rule in favor of companies that impose mandatory arbitration clauses.” In credit card arbitrations, for example, a Public Citizen study in California found that consumers lost 94 percent of the time.

Unfortunately, this is one of the more minor cases the U.S. Supreme Court will decide this term on access to the courts and corporate accountability – areas in which individuals and consumers have already suffered one loss after another.

For almost a year now, Sen. Mike Lee (R-UT) has been one of the most intransigent obstructionists on judicial nominations. Until recently, he has categorically voted down every single nominee to the federal courts, a tactic he said was in retaliation for President Obama’s recess appointments of Richard Cordray to head the Consumer Financial Protection Bureau and two others to the National Labor Relations Board.

In his crusade, Lee has voted against even those nominees he supported, and since at least April, without a single ally left. Now, just as President Obama is ramping up his push to fill federal court vacancies during his second term, Lee says he’s backing down:

Lee says the Republicans have adequately responded by invoking a loosely defined Senate tradition of backing off from filling circuit court seats in the waning months of a president’s term, dubbed the “Thurmond Rule.” That rule was invoked in July.

“That issue is closed,” spokesman Brian Phillips said. However, should the president again make recess appointments, Lee could again institute his policy, Phillips said.

Of course, President Obama used his recess appointment power because this same sort of obstruction left vacant key positions in administrative agencies. Republicans who opposed Richard Cordray to lead the Consumer Financial Protection Bureau, for example, admitted he was a qualified nominee, but held his nomination hostage in a campaign to eviscerate the CFPB’s structure.

And now, in a perverse turn of events, Mike Lee is joining some of his colleagues in threatening a “strong and proportional response” — ostensibly even more obstruction – if the Senate adopts a filibuster reform proposal intended to curb obstruction.

If Lee does stand by his change of heart at least with regard to judicial nominees, he will have removed one of many obstacles to ending the judicial vacancy crisis. But to reverse the trend during Obama’s first term of having confirmed less judicial nominees than any president since Kennedy, obstructionists will have to go one step further and enable Senate Majority Leader Harry Reid (D-NV) to actually schedule yes-or-no votes in the first place.

The Obama administration announced its opposition on Wednesday to a GOP immigration proposal that would add visas for highly skilled workers while actually reducing legal immigration. The House will vote Friday on the bill, which Judiciary Committee Chairman Lamar Smith (R-TX) introduced. The measure failed in September when the House voted on it under a suspension of the rules, requiring a two-thirds vote.

Under the guise of trying to expand the number of visas available to international students who earn masters and doctorates in STEM fields — science, technology, engineering, mathematics — at U.S. universities, Smith’s bill would cut the Diversity Visa program, which is intended for immigrants from countries that do not already send large numbers of immigrants to the U.S. And any unused STEM visas would disappear, shrinking overall legal immigration into the U.S.

In the White House’s statement of administrative policy against the bill, the administration emphasized its commitment to an immigration reform plan that creates a path to citizenship for undocumented immigrants in the U.S.:

As a part of immigration reform, the Administration strongly supports legislation to attract and retain foreign students who graduate with advanced STEM degrees, to establish a start-up visa for foreign-born entrepreneurs to start businesses and create jobs, and to reform the employment-based immigration system to better meet the needs of the U.S. economy. However, the Administration does not support narrowly tailored proposals that do not meet the President’s long-term objectives with respect to comprehensive immigration reform. [...]

Such an approach must provide for attracting and retaining highly skilled immigrants and uniting Americans with their family members more quickly, as well as other important priorities such as establishing a pathway for undocumented individuals to earn their citizenship, holding employers accountable for breaking the law, and continuing efforts to strengthen the Nation’s robust enforcement system.

In addition to President Obama’s support for comprehensive immigration reform — he said he expects to begin working on a reform bill “very soon after my inauguration” — the Congressional Hispanic Caucus outlined nine principles for a reform bill on Wednesday, including protecting families.

But while Democrats are discussing plans to address what voters say should be included in immigration reform, Republicans are pushing bills that roll back the clock on immigration. Smith’s STEM visa proposal treats immigrants as one-to-one competitors with native workers, and earlier this week, retiring GOP Sens. Jon Kyl (AZ) and Kay Bailey Hutchison (TX) introduced the ACHIEVE Act that fails to provide a clear path to citizenship for undocumented immigrants. If Republicans truly wanted to do something about immigration reform during the lame duck session, they would have worked together with Democrats. But their commitment to ideology doomed the effort from the start.

According to data from the Federal Judicial Center, the rate of judicial confirmations under President Obama is slower than the rate during any president’s first term since the term begun by President John F. Kennedy in 1961. The chart below includes all Article III federal judicial confirmations during a president’s first term. As the purpose of the chart is to compare President Obama’s first term to the same period in prior presidencies, it does not include President Gerald Ford because Ford’s presidency completed what began as President Richard Nixon’s second term. The chart does include the entire four year term that began under Kennedy and ended under President Lyndon Johnson:

Although the chart indicates that more judges were confirmed under President Obama than during the Kennedy/Johnson term and that Obama’s confirmation rate is only slightly lower than President Ronald Reagan’s, these numbers are deceptive. Today the federal bench includes 870 authorized active judgeships, including the nine justices of the Supreme Court. This is more than twice the 407 judgeships authorized under President Kennedy and significantly more than the 757 judgeships authorized at the end of President Reagan’s first term. So the Senate confirmed fewer judges under President Obama despite the fact that Obama had more judgeships to fill.

To be sure, President Obama has not been as aggressive as he should have been in naming new judges and throwing his political support behind his existing nominees. But the single biggest obstacle to judicial confirmations under Obama is the record intransigence shown by Senate Republicans. Nearly one quarter of all attempts to break a filibuster on a presidential nominee during the first 221 years of the American republic involved Senate Republican filibusters of President Obama’s nominees.

It is not too late, however, for the Senate to back away from its lowest judicial confirmation rate since the Johnson Administration. Nineteen judicial nominees await confirmation votes on the Senate floor, most of whom are completely uncontroversial.

California police tasked with protecting developmentally disabled patients turned a blind eye to a pattern of sexual assault by their caregivers, according to an investigation by the independent journalism group California Watch. While there were 36 accusations of sexual abuse at state-run facilities for the disabled in the past four years, the Office of Protective Services — the specialized police force in charge of the facilities — routinely failed to take the basic steps necessary for a real investigation into the allegations. Most notably, they did not order a single rape kit in any one of the cases in question, even though the kits are “widely regarded as the best way to find evidence of sexual abuse:”

Without physical evidence, it can be nearly impossible to solve sex crimes, especially those committed against people with cerebral palsy and profound intellectual disabilities. In the three dozen cases of sexual abuse, documents obtained by California Watch reveal that patients suffered molestation, forced oral sex and vaginal lacerations. But for years, the state-run police force has moved so slowly and ineffectively that predators have stayed a step ahead of law enforcement or abused new victims, records show.

Much of the alleged sexual abuse in the California institutions has occurred at the Sonoma Developmental Center, where female patients have been repeatedly assaulted, internal incident records show. In one case, a caregiver was cleared by the police department of assault and went on to molest a second patient.

The mentally disabled are particularly in need of zealous police protection, as their limitations make it significantly harder for them to testify or identify their attackers. That’s why mentally handicapped persons are twice as likely to be sexually assaulted. Moreover, some of the evidence of assault was unequivocal: one mentally disabled patient, Jennifer, was found with “blue bruises shaped like handprints covering [her] breasts” and, later, turned out to be pregnant. Though she pointed to an employee of her facility as her rapist, the Office of Protective Services “took no action” besides opening a case.

One former patrol officer at a facility, Joe Guardado, said the program administrators were to blame for this unconscionable negligence. “They didn’t want anything to get out, so they handled it internally. They call the shots,” Guardado told California Watch.

The failure to properly collect and test rape kits is, sadly, not limited to California facilities. Several states have charged rape victims hefty sums for their kits, potentially limiting access to justice for indigent victims. The federal Violence Against Women Act requires rape kits be provided free of charge as a condition of states receiving federal dollars. There are also thousands of rape kits that have been collected, but have not been analyzed for use in investigations or trials: by one estimate, “400,000-500,000 untested rape kits sitting in police evidence storage facilities and crime labs across the country.”

Fox News aired a peculiar segment about higher-than-expected gun sales on Black Friday from a gun store in Randolph, New Jersey on Thursday, interviewing one owner who attributed the spike to President Obama’s re-election and Hurricane Sandy. Reporter Anna Kooiman struggled to speak from a gun shop in Randolph, New Jersey, as loud shots rang out behind her, practically drowning out the correspondent.

The only audible part of the package included gun dealer Rick Friedman, who partly ascribed rising sales to Obama’s alleged efforts to take away people’s fire arms. “Since the election, you’ve had the perfect storm,” Friedman explained. “You had Hurricane Sandy, you had the re-election of Barack Obama and you had people realizing that not only is it their second amendment right, but they may be in a situation where they may need a fire arm to protect themselves.” Watch it:

Firearm dealers swamped the FBI with 155,000 required background checks on Friday, 20 percent more than last year, just as conservatives and the NRA stoke fears that Obama may call for stricter gun laws in his second term. The president has yet to take action after several mass shootings and has even weakened some gun regulation.

At least one Arizona gun shop protested Obama’s re-election earlier this month by posting a sign turning away customers who voted for the president. The owner has since told Fox that “business is booming.”

From the founding of the Republic until the beginning of the current Congress, the Senate voted to break a filibuster on a president’s nominee only 89 times. Nearly one quarter of all of these were Senate Republican filibusters of President Obama’s nominees. No senate minority in American history was as aggressive in filibustering presidential nominees as the minority led by Sen. Mitch McConnell (R-KY).

Lest there be any doubt, this kind of obstructionism does far more than simply frustrate President Obama — it denies the American people a fully functioning government and discourages the most talented potential nominees from seeking government jobs in the first place. Here are just a few of the most exceptional nominees blocked by the Senate’s nonsensical filibuster rules:

1) Peter Diamond (Federal Reserve Board of Governors)

In 2010, Sen. Richard Shelby (R-AL) placed a hold on MIT Economics Professor Peter Diamond’s nomination to the Federal Reserve Board because he deemed Diamond too unqualified to sit on the board. A few months later, Diamond won the Nobel Prize in Economics. Nevertheless, Shelby clung to his efforts to keep Diamond off the Fed board, and the Nobel Prize winning economist eventually withdrew his nomination. In an op-ed explaining his withdraw, Diamond warned that “we should all worry about how distorted the confirmation process has become, and how little understanding of monetary policy there is among some of those responsible for its Congressional oversight. . . . Skilled analytical thinking should not be drowned out by mistaken, ideologically driven views that more is always better or less is always better. I had hoped to bring some of my own expertise and experience to the Fed. Now I hope someone else can.”

2) Joseph Smith (Federal Housing Finance Agency)

In November 2010, President Obama nominated Joseph A. Smith Jr., then North Carolina’s longtime Commissioner of Banks, to head the independent FHFA. Though the Senate Banking Committee overwhelmingly endorsed his nomination, on a 16-6 vote, Senate Republicans blocked a confirmation vote and scuttled his nomination by running out the clock. Sen. Richard Shelby’s (R-AL), fearing Smith might help underwater homeowners with mortgage principal reductions, opposed him and called him “a tool of the administration, cutting mortgages, throwing the bill to the taxpayers.” As a result of this obstruction, FHFA Acting Director Edward DeMarco — the deputy to President George W. Bush’s director — continues to run the agency and has single-handedly blocked White House mortgage debt relief efforts. More than a quarter of Americans with home mortgages are currently underwater, owing more to the lender than their property is currently worth.

3) Caitlin Halligan (United States Court of Appeals for the D.C. Circuit)

Caitlin Halligan is one of the nation’s best attorneys. Halligan is a former Supreme Court law clerk, a former Solicitor General of the state of New York, the former head of appellate litigation at one of the nation’s top law firms and is currently general counsel for one of the largest prosecutor’s offices in the country. Halligan taught constitutional law at Columbia Law School. She received the highest possible rating from the American Bar Association. And her nomination to the federal bench enjoys the support of some of the nation’s top Supreme Court advocates, many of whom are Republicans. Yet her nomination has languished for more than two years despite the fact that Senate Republicans have barely even managed to articulate a case against Halligan’s confirmation. Indeed, the best her opponents have come up with is a complaint that she argued positions the National Rifle Association disagrees with on behalf of her former client — the state of New York. Apparently, the NRA gets to veto judges now.

4) John J. Sullivan (Federal Election Commission)

In 2009, when President Obama nominated Sullivan , a respected labor lawyer, to replace a Democratric FEC Commissioner whose term expired two years earlier, his nomination received praise from campaign finance reform advocates and opponents. The Senate Rules and Administration Committee unanimously recommended his nomination, with the panel’s top Republican endorsing Sullivan as “eminently well-qualified for this position.” Though neither actually opposed the nomination, Sen. John McCain (R-AZ) and then-Sen. Russ Feingold (D-WI) placed a “hold” on the nomination — essentially announcing their intention to force a time-consuming cloture vote with a 60 vote super-majority threshold — demanding the administration also replace other members of the gridlocked Commission. After 15 months without a vote, Sullivan asked the White House to withdraw his nomination and lamented a “broken system.” “The problem with cloture,” Sullivan noted, “is not the vote but the amount of floor time it takes in the Senate. It is an incredible distraction to occupy the Senate with a nomination like mine with so many other pressing matters on the floor.” Two years later, not one of the five FEC commissioners serving on expired terms has been replaced.

5) Dawn Johnsen (Department of Justice, Office of Legal Counsel)

Before even taking the oath of office, President Obama announced that Dawn Johnsen, an outspoken opponent of torture, would lead the Department of Justice’s Office of Legal Counsel (OLC). In this role, she would lead the same office that produced the infamous “torture memos” justifying this illegal practice during the Bush Administration. Johnsen headed the same office during the Clinton Administration, and she co-authored a set of principles for future OLC attorneys to ensure that a repeat of the torture memos did not occur. Senate Republicans filibustered her nomination, fixating in their rhetoric on her record as an attorney defending abortion rights before she entered government service, but Johnsen herself suspected a difference motive. In a 2011 interview, Johnsen indicated that she was blocked in an attempt to score political points against Obama’s approach to terrorism.

Bonus: Richard Cordray (Consumer Financial Protection Bureau)

In July 2011, President Obama nominated Cordray, a former Ohio Attorney General, to be the first-ever director of the newly created Consumer Financial Protection Bureau. A group of 44 Senate Republicans immediately announced that they would refuse to vote for Cordray or any nominee for the position, unless the independent agency was first defanged. That December, 45 Republicans blocked an up-or-down-vote on Cordray’s nomination, even though he had majority support and Republican opponents admitted he was qualified. President Obama recess appointed Cordray in January, but that only runs through the end of 2013.

Last month, George H.W. Bush-appointed Judge Carol Jackson rejected a challenge to the Obama Administration’s rules ensuring that employer-provided health plans include contraceptive coverage. In a brief, one sentence order yesterday, the conservative United States Court of Appeals for the Eighth Circuit temporarily stayed Judge Jackson’s decision. This is the first time a court of appeals has taken any action against the birth control rules, although this stay order will only remain in effect until the court has enough time to fully consider the case.

Yesterday’s order is not surprising, as the Eighth Circuit is the most Republican federal appeals court in the country. Nine of the court’s eleven active judges are Republican appointees, including six appointed by President George W. Bush. Notably, Judge Morris Sheppard Arnold, an H.W. Bush appointee, dissented from yesterday’s order.

Nevertheless, the order is concerning because this case does not involve a religious organization or similar group that has a relatively strong claim that it may assert a religious objection to laws protecting birth control access. Rather, in this case a for-profit company engaged in “the business of mining, processing, and distributing refractory and ceramic materials and products” claims that it is somehow able to impose the religious views of its owners upon its employees.

In other words, yesterday’s order suggests that two judges on the Eighth Circuit want to go far beyond the Supreme Court’s infamous holding that corporations are people, and hold that a for-profit corporation can be Catholic.

Ohio Secretary of State Jon Husted (R) became the public face of vote suppression this year for his overreaching election directives, which restricted early voting hours and forbid election officials from counting legitimate votes. Though President Obama won the state, Husted has not halted his efforts. With two House races heading to a recount, Husted is now facing accusations that he is illegally tossing provisional ballots. These House races will determine whether state Republicans get a super-majority to put constitutional amendments on the ballot without a single Democratic vote.

State representatives Kathleen Clyde (D-OH) and Debbie Phillips (D-OH) threatened to sue Wednesday evening over at least 384 ballots that have been discarded in the two districts in question, Tuscarawas and Cuyahoga. According to the state reps, some ballots were put in plain manila envelopes instead of provisional ballot envelopes, rendering them invalid. Additionally, they say Husted is rejecting ballots covered under the National Voter Registration Act of 1993, which allows voters who have moved to a different address within the same congressional district to vote at their former precinct.

Even more ballots are likely to have been wrongly discarded because officials are using a database already proven to be flawed and incomplete to determine the voter’s registration status.

Besides these possible breaches of federal election law, Husted is also tossing innumerable ballots that were thrown into question by poll worker error through no fault of the voter. A federal judge tried to stop him, declaring “I don’t want to see democracy die in the darkness on my watch.” But the conservative Sixth Circuit Court of Appeals issued a stay that allowed Husted to throw out these votes.

Ohio leads the country in provisional ballots, with 200,000 cast this year. In 2008, the state discarded 1 out of every 5 provisional votes. These ballots are often concentrated in urban, Democratic areas — and huge percentages get discarded every election.

Today the Senate Judiciary Committee debates major changes to federal agencies’ and law enforcement’s ability to access the content of digital communications by updating the Electronic Communications Privacy Act (ECPA) to require warrants for the first time for cloud data over 180 days old. Somewhat ironically, the ECPA changes are tied to legislation lobbied for by Netflix that would reduce the privacy of video viewing habits by requiring only one-time consent to share viewing history.

The update to the ECPA is a long time coming: The law dates back to 1986, long before the dawn of many of the platforms it applies to, including Facebook, Twitter, Gmail, and smartphones. Under ECPA, agents can snoop around in remotely stored data that is more than 180 days old by merely asking service providers for the information or getting an administrative subpoena — no warrant needed, meaning no need to prove probable cause. Cyrus Farivar at Ars Technica explained the historical context when the update first appeared on the horizon earlier this fall:

When Congress passed the 1986 Electronic Communications Privacy Act (ECPA), a time when massive online storage of e-mail was essentially unimaginable, it was presumed that if you hadn’t actually bothered to download your e-mail, it could be considered “abandoned” after 180 days. By that logic, law enforcement would not need a warrant to go to the e-mail provider or ISP to get the messages that are older than 180 days.

Privacy advocates have long considered the law to be inadequate for current technology and practices, such as the increasing consumer use of smartphones — a position supported by the 1.3 million requests for user information in the last five years that wireless carriers reported responding to, as warrants for wiretap surveillance dropped 14 percent.

Last week Senate Judiciary Chair Patrick Leahy (D-VT), the author of the original ECPA and the proposed amendment to require warrants, denied reports his update had been altered to continue allowing more than 22 federal agencies access to cloud data without a warrant.