Unfortunately, Paul is not just restricting this obstructionist tactic to one bill:

Paul is holding up confirmation of one of President Obama’s judicial nominees, Adalberto Jose Jordan, to the United States Court of Appeals for the 11th Circuit. The nomination cleared a procedural hurdle with an overwhelming 89-5 vote Monday evening.

But Paul is forcing the Senate to conduct at least some of the remaining 30 hours of required debate on the judicial nominee. Often, that time requirement is waived by senators when an issue gains wide bipartisan support.

Thirty hours does not sound like a lot, until you multiply it across all the other business that the Senate needs to consider. Indeed, if Paul can force 30 hours of delay every time the Senate tries to confirm a single nominee, he can prevent Congress from completing any other business for years:

This is why the Senate’s broken rules cannot coexist with the Tea Party. So long as there are just a handful of senators willing to engage in maximal delay over petty disagreements, each individual member of the Senate cannot enjoy this power to gum up the entire body.

Fortunately, the actual parties to this lawsuit were not nearly as unreasonable as Mr. Gingrich, and they eventually agreed to settle the case after mediation. In his order approving the settlement, Biery includes an unusual “personal statement” directed at the many lawmakers who, like Gingrich, have painted him as some kind of enemy of religion:

To the United States Marshal Service and local police who have provided heightened security: Thank you.

To those Christians who have venomously and vomitously cursed the Court family and threatened bodily harm and assassination: In His name, I forgive you.

To those who have prayed for my death: Your prayers will someday be answered, as inevitably trumps probability.

To those in the executive and legislative branches of government who have demagogued this case for their own political goals: You should be ashamed of yourselves.

Biery also includes a clever dig and the many Christian right groups that have attacked him: “Any American can pray, silently or verbally, seven days a week, twenty four hours a day, in private as Jesus taught or in large public events as Mohammed instructed.”

Anti-Islamic Delegate Bob Marshall (R-VA)

One bill, HB825 from Republican Del. Bob Marshall of Prince William County, would have prohibited judges and state administrators from using any legal code established outside the United States to make decisions. [...]

But when legislators started hearing from business groups concerned about how the proposal could affect their dealings abroad and foreign companies located here, they sent the bill back to committee.

“I had some business concerns,” said Del. Terry Kilgore, R-Scott County, after making the motion Thursday to kick back the bill. “It’s just something that needs some work.”

It’s unfortunate, if far from unexpected, that similar protests from religious groups, both Islamic and otherwise, were not enough to kill the bill. Nevertheless, the emergence of business opposition to these sorts of bills is a very important development.

The first wave of anti-Islamic bills introduced in state legislatures specifically named “Sharia” or Islamic law as off limits to state court judges. Such laws are unambiguously unconstitutional, as the First Amendment forbids any law that exists for the sole purpose of lashing out at a particular faith. Del. Marshall’s bill short circuits this constitutional limit because it does not expressly call out something unique to a particular faith. Instead, it paints with a broad brush by forbidding citations to any legal code that’s not established in the United States.

The problem with this tactic, however, is that there are all kinds of legitimate reasons why a judge may need to rely on foreign legal sources in order to render a decision. Most significantly, contracts between U.S. and foreign companies frequently require any disputes between them to be resolved under a foreign nation’s law. Needless to say, business don’t like it when lawmakers take away an important tool that they need to conduct international business just to push back against some baseless fantasy about judges lining up to replace the Constitution with Islamic law.

So the punchline is that anti-Islamic lawmakers are now in a bind. They can either push a narrow law targeting Islam, and have that law be struck down in the courts, or they can broaden the law, and wind up pushing something with spillover effects that will greatly annoy powerful interest groups.

Or, alternatively, they could simply abandon their anti-Islamic crusade altogether, and devote their attention solving problems that actually exist.

Ninth Circuit Nominee Paul Watford

Senate Republicans immediately started distorting his record, and they eventually filibustered his nomination into oblivion.

About a year later, we saw this same charade play out again. President Obama nominated Caitlin Halligan to serve as a federal appellate judge in DC. Like Liu, Halligan is an absolutely brilliant legal mind and a former Supreme Court law clerk. Unlike Liu, however, she did not have a paper trial because she has never been a law professor and spent her career advocating on behalf of her client’s views rather than expressing her own. Nevertheless, Senate Republicans filibustered her, relying on the thin argument that she is unconfirmable because she once represented a client whose views disagree with those of the NRA.

So when President Obama nominated former Supreme Court law clerk Paul Watford to a federal judgeship last October, ThinkProgress worried that he too would prove too qualified to be confirmed. Sadly, our fears seem justified. Yesterday, the Senate Judiciary Committee cast an entirely party-line vote to advance Watford to the full Senate — an action which, in the past, has proceeded a GOP filibuster. Sen. Chuck Grassley (R-IA) was given the unfortunate task of devising a flimsy rationale for opposing the nomination:

I have substantive concerns regarding Mr. Watford’s views on both immigration and the death penalty.

Mr. Watford partnered with the American Civil Liberties Union (ACLU) and the National Immigration Law Center (NILC) in two cases to oppose Arizona’s 2010 immigration bill. In the first case, Friendly House, a class-action lawsuit, Mr. Watford served as co-counsel for most of the plaintiffs, including the class action representative, Friendly House. . . .

With regard to the death penalty, Mr. Watford assisted in submitting an amicus brief to the Supreme Court in Baze v. Rees on behalf of a number of groups who opposed Kentucky’s three-drug lethal injection protocol. In its plurality opinion, the Court rejected the arguments raised in the brief. Ultimately, Kentucky’s three drug protocol was upheld 7-2.

So there you go. In a legal career that stretches nearly two decades, Watford worked for two clients that Grassley disagrees with, and this fact evermore disqualifies him for a seat on the federal courts.

It’s impossible to describe how dangerous this standard is. Our system of law depends on all parties having adequate representation to assert their legal claims, and this is doubly true with respect to the kind of disadvantaged clients who stand against conservatives’ preferred legal outcomes. Grassley is sending a clear and unambiguous message to the entire legal profession here — if you want to be a judge some day, don’t even think about working for the poor, for immigrants, for unions or for criminal defendants. Sadly, many bright and ambitious attorneys will hear that message loud and clear, and will remain in corporate law firms representing well-moneyed clients who will be just fine with or without their services.

Ultimately, however, it’s likely that Grassley’s real motivations are slightly different. Like Liu and Halligan before him, Watford is guilty of being the kind of exceptionally talented attorney who could be on the Supreme Court some day — and so the Senate GOP appears poised to block him even if they can’t think of a plausible reason to do so.

Over the course of the decade, we have reviewed 624 consumer cases, carefully categorizing and compiling win-loss rates, with the scope of these consumer cases encompassing instances where individuals, patients, policyholders, and small business owners were pitted against corporate or governmental entities. . . . On average, defendants have won an overwhelming 74% of their cases and plaintiffs have won just 22% of the time over the last decade. Furthermore, since 2005, consumers have lost an astonishing 79% of their cases before the Texas Supreme Court.

The report also notes that a major factor driving this trend is Gov. Rick Perry (R), whose appointees to the court consistently sided with corporations over people. Indeed, the “win rate” for corporate and other defendants skyrocketed shortly after Perry took over as governor:

Santorum said the court is overly liberal and imposing a “reign of terror of California judges” on other Western states, but acknowledged that outright abolition of the court wouldn’t be exactly constitutional, as judges are guaranteed lifetime appointments. So, Santorum suggested, perhaps jokingly, “maybe we can create a court that puts them in Guam or something like that and keep their life appointments” and be safely quarantined. Watch it:

Santorum also channeled Rick Perry a bit, joking he harbors more nefarious intentions for the current Ninth Circuit judges: “I have some ideas that I won’t share publicly.”

When rival GOP candidate Newt Gingrich also proposed abolishing the Ninth Circuit, former George W. Bush Attorneys General Michael Mukasey and Alberto Gonzales called the plan “ridiculous,” “irresponsible,” and “troubling.” Indeed, as ThinkProgress’ Ian Millhiser has explained, abolishing a federal court because the president doesn’t agree with their rulings is a dangerous breakdown of the separation of powers.

A newly released letter, however, suggests that Gableman managed to violate ethics laws in hiring legal counsel to defend him against these allegations that he violated ethics laws:

State Supreme Court Justice Michael Gableman received free legal service worth thousands of dollars from one of Wisconsin’s largest law firms as it defended him against an ethics charge, according to a letter released Thursday by the firm.

The state’s ethics code says state officials cannot receive anything of value for free because of their position. And a separate ethics code specifically for judges says they cannot accept gifts from anyone who is likely to appear before them.

A former state ethics official on Thursday said authorities should thoroughly investigate how the deal between Gableman and attorney Eric McLeod of Michael Best & Friedrich worked because Gableman did not end up paying any attorneys fees. [...]

Michael Best has five cases currently before the Supreme Court. Gableman is participating in all of them. Gableman did not respond Thursday to a request for an interview.

Sadly, this is hardly the only ethical tangle to emerge on the Wisconsin Supreme Court since Gableman’s election allowed conservatives to seize control over it. With Gableman casting the key fourth vote, the court’s conservatives voted to allow corporate lobbyists to write the court’s ethics rule enabling justices to sit on cases involving their major campaign donors.

At the end of a rare Saturday session, the Senate’s last day of official business for the year, McConnell blocked an effort by Senate Majority Leader Harry Reid (D-Nev.) to confirm more than 50 executive and judicial branch nominations awaiting Senate action.

And he laid out a condition to releasing his objection: “confirmation from the administration that it will respect practice and precedent on recess appointments.”

McConnell added that he needed from the White House “assurances that have been routinely given at this point with regard to recess appointments.”

It’s unclear just what “practice or precedent” McConnell is referring to, but there is no one who has less standing to complain about unprecedented action than McConnell himself — the lead architect of the Senate GOP’s nihilistic campaign to make it impossible for President Obama to govern. Without an agency head in place, the CFPB cannot perform many of its core functions. Yet, Senate Republicans are filibustering CFPB director-in-waiting Richard Cordray in order to sabotage this newly created consumer protection agency. If McConnell really cares one bit about respecting “practice and precedent,” he can show it by ending this blockade and recognizing that the Senate minority does not have the legitimate authority to effectively repeal an entire agency.

McConnell could also show that he respects practice and precedent by returning the Senate to the way it operated before he became minority leader. Simply put, no one in recent American history has done more to abuse the filibuster than Mitch McConnell — as demonstrated by the massive spike in votes attempting to break filibusters once McConnell took over the minority caucus:

President Obama is not powerless, however, against McConnell’s effort to sabotage the CFPB. If McConnell will not end his blockade, Obama can invoke the Roosevelt Precedent, which allows him to appoint Cordray the second the Senate adjourns for the year.

SCHIEFFER: One of the things you say is that if you don’t like what a court has done, that Congress should subpoena the judge and bring him before Congress and hold a Congressional hearing… how would you enforce that? Would you send the Capitol Police down to arrest him?

GINGRICH: Sure. If you had to. Or you’d instruct the Justice Department to send a U.S. Marshal.

Watch it:

Even This Guy Thinks Newt Goes Too Far

In interviews with Fox News’ Megyn Kelly yesterday, both of George W. Bush’s last two attorneys general disagreed strongly with Gingrich’s proposal. Former Attorney General Michael Mukasey, himself a former federal judge, called the plan “ridiculous,” “irresponsible,” “outrageous,” and “dangerous”:

KELLY: He wants to see the Ninth Circuit Court of Appeals entirely abolished, your thoughts on that?

MUKASEY: Ridiculous. . . . to say that you’re going to undo and entire court simply because you don’t like some of their decisions, when there are thousands of cases before that court, is totally irresponsible. It’s outrageous because it essentially does away with the notion that when courts decide cases the proper way to have them reviewed is to go to a higher court. It’s dangerous because, even from the standpoint of the people who put it forward, you have no guarantee that you’ll have a permanent majority. . . . It would end with having a Democratic majority that then decides to abolish the Fourth Circuit and the Eleventh Circuit. And you go on and on and on. And I guess they could then reconstitute another court. It would reduce the entire judicial system to a spectacle.

Former Attorney General Alberto Gonzales had a similar reaction:

GONZALES: The notion or the specter of bringing judges before the Congress, like a schoolchild being brought before the principal is, to me, a little bit troubling . . . . I cannot support and I would not support efforts that appear to be intimidation or retaliation against judges.

Watch it:

Bear in mind that this is the same Alberto Gonzales that helped justify Bush’s torture policies and who presided over a dangerous and embarrassing politicization of the Justice Department. When even that guy thinks you have insufficient respect for the rule of law, it’s a pretty good sign that you’ve gone off the deep end.

By Kate Linnea Walsh

We begin “What Went Wrong” with a slightly distracted Alicia and her colleagues defending a police officer, Lauryn, accused of killing her husband. The judge instructs the jury to only consider judgments of “guilty of first-degree murder” or “not guilty,” but the prosecution – led by Cary – is afraid they didn’t make a strong enough case for that, so they offer a deal: Lauryn pleads guilty to second-degree murder (and gets four years in prison). When the defendant asks for Alicia’s advice on whether to take the deal, Alicia says: “I think that you need to make that decision, Lauryn. You can’t defer to anyone else. You know what you did. You know what you didn’t do. You also know sometimes that doesn’t matter.” Alicia’s words aren’t really helpful to Lauryn, but the fact that Alicia came up with those words – especially the last sentence – encapsulates the way her character has evolved over the past two and a half seasons.

Lauryn doesn’t take the deal, and the jury decides on a guilty verdict. Alicia and her colleagues immediately start talking to jurors to figure out what went wrong, because everyone – prosecution, defense, and the judge himself – is surprised by the verdict. Something clearly happened, because in just one round of voting, over half the jurors changed their votes to guilty. It may have had something to do with outside evidence about one of the witnesses that the foreman introduced, but Lockhart/Gardner can’t use that because they found out about it by going through the trash from the jury deliberation room without permission. Instead, they must play a game of cat and mouse with the State’s Attorney’s office as Cary and Dana follow Alicia and her colleagues around and try to stop them from getting useful information from the jurors – a game that culminates in Cary throwing Kalinda in jail for a while. Lockhart/Gardner finally convinces the judge to declare a mistrial based on a technicality: The judge himself accepted a juror’s Facebook friend request during the trial, which counts as unauthorized outside contact with a juror. Everyone knows that something weird went on with the jury, but everyone also knows that this Facebook friending had nothing to do with it. It’s a perfect illustration of the point the show likes to make about using the system to get a desired (or even correct) outcome, even if the means end up having nothing to do with the motive.

While the Lockhart/Gardner lawyers are looking for evidence, Dana uses the threat of the judicial corruption investigation to try to scare the judge into deciding against Lockhart/Gardner, but he’s not playing. The investigation itself, however, is still going on, and Wendy Scott-Carr dramatically confronts Will at the basketball court where so much of the supposed corruption was alleged to have taken place. She tells him that he’s not her real target – Peter is. (She also tantalizingly mentions that Peter used to be part of Will’s basketball game. I’d love to know more about the history between Peter, Alicia, and Will.) In an echo of the case, Wendy, too, is using the system she’s been given to accomplish her own objective. Now, does she mean that Peter is literally the target of the investigation, or that she plans to use the publicity of the investigation to gain support for another run against Peter when his term is up? It could be either, but I think she meant the former, because she said “Peter’s clean this term. But he wasn’t his first term, was he? And you know where his weaknesses lie.” Will: “Well, I know a lot of things.” I’m sure he does. When he refuses to talk without a lawyer, though, she says the next time they talk will be in front of a Grand Jury. Will calls her bluff: “Okay. So be it.” That should be interesting.

It’s interesting that Scott-Carr specifies that Peter is clean now, because in this episode we finally saw his corruption firsthand. Peter and Alicia have decided to deal with Grace’s behavior by sending the children back to private school, but the headmistress claims there is no space for them. Peter first tries to charm her – and he can be very charming. This scene went a long way to showing the audience how Peter how garnered so much support and loyalty, both personally and professionally, in the first place. When charm isn’t quite enough, though, he openly threatens to use his position to expose the criminal records of a variety of the school’s teachers, and the headmistress gives in. I almost wish we had gotten a scene like this earlier in the show’s run, as an illustration of the way Peter operates. It’s also fascinating that this episode in which we see his corruption at work is also an episode in which we see him act as a model boss and father in other scenes. I don’t talk about Peter much, but the writers’ refusal to make him into either villain or victim is part of what makes the underlying fabric of the show so strong.

Alicia spends much of the episode slightly distracted from her work, both because of the issues with her children and because of the fallout from her break-up with Will. They semi-awkwardly agree that they don’t want things to be awkward, and Alicia marvels at Will’s assistance that they can “just decide it and it’s so.” This is the flip side of what Alicia told Lauryn about the truth not always mattering – sometimes it means that you’ll be convicted of a murder you didn’t commit, but sometimes it means you can decide your way out of an emotional meltdown and just declare that everything will be fine. Alicia’s lonely, though, so while Peter has the kids, she goes out drinking with her brother. I always love seeing Owen, especially when he agrees with me, and this time he was making the exact point I made last week: In this moment, Alicia has obvious, practical solutions to her problems at hand, but won’t use them. As Owen points out, if the secrecy and the “boss thing” are the reasons why she doesn’t want to commit to Will, she could get divorced and quit her job to work for a different firm. Alicia demurs, and leaves us wondering whether the show made Peter so likable and charming this week to lay groundwork for a reconciliation.

Throughout the episode, Diane notices Alicia’s preoccupation and calls her on it, but also offers to take a more active role in mentoring her. Diane is suddenly gung-ho about Alicia pursuing the partner track, and cautions her that it’s better to be associated with other powerful women than with powerful men. She obviously means Will, but it’s a funny thing to say to someone who’s already associated with the State’s Attorney in the most public way possible. Is Diane’s attention a reward for the break-up, or is it a power play? Since Diane thinks Will ended things, does she want his supposedly scorned ex as a partner on her side in future disputes? Diane doesn’t want people’s personal lives interfering in their work – unless or until she can use them for her own means.

We don’t get another new episode until January, so I hope you all enjoy the holidays, and we’ll catch up in the new year!

Kate Linnea Welsh is a New Hampshire-based writer and taxonomist. (No, that doesn’t involve dead animals.) She’s a senior editor at TheTelevixen.com, on staff at Vampire-Diaries.net, and writes about other TV shows, books, and more at her blog (http://katelinnea.blogspot.com). She’d love to talk to you on Twitter: @katelinnea

Under The Senate GOP's Standard, Neither Of These People Can Be Judges

Given Clement’s singular role as the Republican Party’s top litigator, it’s likely that he will be nominated to the federal bench if a Republican wins the White House while Clement is still young enough to be a viable nominee. Moreover, as a former United States Solicitor General and former law clerk to Justice Scalia, Clement certainly possesses the kind of resume that generally attracts a president’s attention. There’s only one problem — the Senate GOP just disqualified him.

Last week, the Senate GOP voted almost unanimously to filibuster Caitlin Halligan’s nomination to the United States Court of Appeals for the D.C. Circuit. And, while the GOP’s case against Halligan is disturbingly thin, Senate Republicans were clear about one thing — they blocked her because she argued controversial cases when she served as New York’s solicitor general. Senate Minority Leader Mitch McConnell accused her of advancing a “dubious legal theory” because she once argued a position that the NRA disagreed with. The Senate Judiciary Committee’s top Republican, Sen. Chuck Grassley (R-IA), explained that he opposed her nomination because Halligan “su[ed] gun manufacturers for the criminal acts committed with handguns.” And Sen. Mike Lee (R-UT) ranted that arguing against the NRA’s position is “an activist approach.”

Now, let’s be clear, Halligan argued these cases because she was the Solicitor General of New York and a solicitor general’s job is to defend the government’s position on an issue regardless of whether or not they personally agree with it. Her involvement in these guns cases says no more about her stance on the Second Amendment than the fact that Bush’s solicitor general defended campaign finance reform proves that he is didn’t want to kill meaningful limits on corporate money in politics when he later argued the Citizens United case.

But, of course, as Sen. John Cornyn (R-TX) once explained, senators “need to treat all nominees exactly the same, regardless of whether they’re nominated by a Democrat or a Republican president.” The Senate GOP has made it perfectly clear that an attorney who argues a controversial case cannot be confirmed to the federal bench — even if their decision to argue that case says nothing about their personal views of the law or the Constitution.

Should a future president nominate Paul Clement to be a judge, the Senate GOP’s own “Halligan Rule” disqualifies him from judicial service.

Sens. Mitch McConnell (R-KY) and Chuck Grassley (R-IA) Discuss Their Understanding Of The Constitution

The Senate GOP’s decision to filibuster Halligan earned wide rebukes from Senate Republicans*, many of whom slammed this decision to filibuster a judicial nominee as unconstitutional:

• Lamar Alexander (R-TN): “I would never filibuster any President’s judicial nominee, period. I might vote against them, but I will always see they came to a vote.”
• Saxby Chambliss (R-GA) and Johnny Isakson (R-GA): “Every judge nominated by this president or any president deserves an up-or-down vote. It’s the responsibility of the Senate. The Constitution requires it.”
• Tom Coburn (R-OK): “If you look at the Constitution, it says the president is to nominate these people, and the Senate is to advise and consent. That means you got to have a vote if they come out of committee. And that happened for 200 years.”
• John Cornyn (R-TX): “We have a Democratic leader defeated, in part, as I said, because I believe he was identified with this obstructionist practice, this unconstitutional use of the filibuster to deny the president his judicial nominations.
• Mike Crapo (R-ID): “Until this Congress, not one of the President’s nominees has been successfully filibustered in the Senate of the United States because of the understanding of the fact that the Constitution gives the President the right to a vote.”
• Lindsey Graham (R-SC): “I think filibustering judges will destroy the judiciary over time. I think it’s unconstitutional”
• Chuck Grassley (R-IA): “It would be a real constitutional crisis if we up the confirmation of judges from 51 to 60, and that’s essentially what we’d be doing if the Democrats were going to filibuster.”
• Kay Bailey Hutchison (R-TX): “[T]he Constitution envisions a 51-vote majority for judgeships…. [Filibustering judges] amend[s] the Constitution without going through the proper processes…. We have a majority rule that is the tradition of the Senate with judges. It is the constitutional requirement.”
• Jon Kyl (R-AZ): “The President was elected fair and square. He has the right to submit judicial nominees and it is the Senate’s obligation under the Constitution to act on those nominees.”
• Mitch McConnell (R-KY): “The Constitution of the United States is at stake. Article II, Section 2 clearly provides that the President, and the President alone, nominates judges. The Senate is empowered to give advice and consent. But my Democratic colleagues want to change the rules. They want to reinterpret the Constitution to require a supermajority for confirmation.”
• Jeff Sessions (R- AL): “[The Constitution] says the Senate shall advise and consent on treaties by a two-thirds vote, and simply ‘shall advise and consent’ on nominations…. I think there is no doubt the Founders understood that to mean … confirmation of a judicial nomination requires only a simple majority vote.”
• Richard Shelby (R-AL): “Why not allow the President to do his job of selecting judicial nominees and let us do our job in confirming or denying them? Principles of fairness call for it and the Constitution requires it.”
• John Thune (SD): Filibustering judicial nominees “is contrary to our Constitution …. It was the Founders’ intention that the Senate dispose of them with a simple majority vote.”

*All quotes are taken from when George W. Bush was president. But, of course, that doesn’t matter because — in the words of Cornyn — “we need to treat all nominees exactly the same, regardless of whether they’re nominated by a Democrat or a Republican president.”**

**Cornyn’s statement was also made when George W. Bush was president.

DC Circuit Nominee Caitlan Halligan

Nor is Halligan a particularly ideological nominee. Remember Miguel Estrada, the ultraconservative attorney whose own nomination to the D.C. Circuit was rejected during the Bush Administration? Senate Republicans routinely pretend that Estrada’s failure to be confirmed is one of the greatest injustices of the last 10 years, yet Estrada himself signed a letter praising Halligan as a model of judicial fairness:

We write in enthusiastic support of the nomination of Caitlin Halligan to be a judge on the United States Court of Appeals for the District of Columbia Circuit. We are lawyers who have worked with Caitlin in various capacities. We believe that Caitlin is an outstanding selection for the D.C. Circuit. She is a first-rate lawyer and advocate. She is well respected and highly regarded as a leader of the profession. Caitlin also has an ideal judicial temperament. She brings reason, insight and judgment to all matters. Even those of us who have been on opposite sides of Caitlin in litigation have been greatly impressed with her ability and character. We have no doubt that she would serve with distinction and fairness.

So if Halligan’s nomination receives a fair hearing tomorrow, there’s no reason to doubt that the filibuster against her will be easily broken and even less reason to think that she will not be confirmed by a wide margin. But, of course, in the era of Mitch McConnell, the mere fact that a nominee is both outstandingly qualified and widely praised for fairness is no reason to stand in the way of a good filibuster.

Many Senate Republicans have grasped for straws justifying their decision to oppose Halligan — but even this has proved a difficult task for her opponents. Most of the incredibly thin arguments they raise against Halligan boil down to the claim that, because she once argued for a positions like gun control or diversity in education when she was New York’s solicitor general, she must be a hardcore supporter of affirmative action and a militant opponent of the Second Amendment.

But, of course, this is pure nonsense. A solicitor general’s job is to defend the government’s position on an issue regardless of whether or not they personally agree with it. George W. Bush’s first SG, Ted Olson, defended campaign finance reform while he was in the Justice Department, only to convince the Supreme Court to destroy meaningful limits on corporations buying elections after he left the government. Bush’s second SG, Paul Clement, argued and won a case that conclusively established that the Affordable Care Act is constitutional while he was in the government. Now, of course, he’s been hired by the Republican state officials who are trying to convince the Supreme Court that Clement’s previous victory never happened.

Simply put, there is no argument against confirming Caitlin Halligan — beyond a purely partisan desire to keep excellent Obama-nominated judges off the courts entirely, that is. If the Senate does it’s constitutional duty to fairly evaluate judicial nominees tomorrow, there is no doubt that Halligan will be confirmed.

Teenage Brownback Critic Emma Sullivan

But the truth is that Sullivan was also very, very lucky. Shortly after Sullivan tweeted out her now famous “#heblowsalot” tweet, the governor’s office complained to her high school administration and Sullivan was called into the principal’s office and ordered to write a demeaning apology letter. At this point, it was one high school senior versus the might and prestige of the Governor of Kansas and a school leader capable of undermining much of Sullivan’s academic future. Had this balance of power remained in place, it’s all but certain that Sullivan would have silently sacrificed her constitutional rights.

Thankfully, Sullivan’s story soon became a national news story, and the governor’s might soon had to contend with a national backlash. This ending, however, is exceedingly rare. On the day that Gov. Brownback apologized to Sullivan, thousands of women worked jobs that pay them a fraction of what their male colleagues earn for the same work. Many more workers will illegally be forced to work overtime for reduced or no pay. A person was probably fired because they are gay.

Few, if any, of these people will garner headlines. Left alone, many of them will be virtually powerless against the full might of a major corporation.

Which is why the judicial vacancy crisis — a crisis born in large part from the Senate GOP’s unprecedented campaign of obstruction against President Obama’s nominees –
is a direct attack on the millions of Americans who could never hope to win this kind of standoff. On the day President Obama took office, 55 federal judgeships were vacant. Today, the number is 83 according to the Administrative Office of the US Courts. Each one of those vacancies means countless Americans waiting months or years for the only thing that can empower them to fight back against mighty corporations or an overreaching official — a court order enforcing their rights.

Yet, while curing the vacancy crisis is an essential step, more judges alone will not be enough. We also need better judges than the corporate-aligned group that currently dominate the federal bench. When the courts abdicate their own duties in favor of corporate-run arbitration, when they enable corporations to divide and conquer powerless consumers by eviscerating class actions, when they place oil interests above the law, allow corporations to buy and sell elections, or tell Lilly Ledbetter to go suck eggs, they force millions of Americans into the same position of utter powerless Emma Sullivan faced while she was being berated by her principal for exercising her constitutional rights.

Sullivan got lucky. Her story became a national outrage, and this spotlight shifted the balance of power in her favor. Most Americans will not be so fortunate. Their rights will rise or fall based on whether judges are willing to treat every American with the same regard they pay the most powerful corporations — and whether a judge will even be present to hear their case.