On Tuesday, another group of plaintiffs suing together lost their case against a corporation. This time, it was workers. Two weeks ago, it was consumers. In both decisions, the same five-justice majority supported their decisions to whittle away corporate accountability mechanisms with procedural rationales that were so results-oriented as to seem nonsensical to the four dissenting justices and other court-watchers.

The latest case, Genesis HealthCare Corp. v. Symczyk, involved health care workers who claimed they were being docked pay for a 30-minute lunch break even when they worked. In what is known as a “collective action” (similar to a class action), one worker files a claim under the Fair Labor Standards Act, and others who are similarly situated later join on to seek a complete resolution to the issue.

So here’s what Genesis did. It offered the first representative plaintiff $7,500 to settle her claim and gave her ten days to respond. Laura Symczyk never responded, presuming the case would continue on. But that’s not what happened. Instead, Genesis successfully argued that Symczyk’s case became moot when she rejected the offer, because the sum of money would have resolved her case in its entirety and she no longer had any claim before the court.

Of course, as Justice Elena Kagan so pointedly makes clear in her dissent, it isn’t true that an unaccepted settlement offer ends a case. “As every first-year law student learns, the recipient’s rejection of an offer ‘leaves the matter as if no offer had ever been made,’” she writes. But somehow, several lower courts accepted the defendants’ argument that the offer mooted Symczyk’s individual case, and plaintiffs conceded the point. And because plaintiffs didn’t appeal on that issue, the majority accepts a conclusion that, as Justice Kagan writes, “the facts will show to be ridiculous” and “ensures it will reach the wrong decision.” In fact, according to Kagan and her fellow dissenters, not only is the majority wrong in this case; there is no way that a settlement offer could ever moot a case. So that’s that. This case would have no applicability to any other case, leading Justice Kagan to advise, ”Feel free to relegate the majority’s decision to the furthest reaches of your mind: The situation it addresses should never again arise.”

But let’s assume for a moment that a situation could arise, since that’s the basis of a new U.S. Supreme Court precedent (and dissents, while useful, are not binding precedent). Assume that, instead of Symczyk rejecting the settlement, she had accepted a settlement at the paltry price of $7,500, intending to resolve her own claim but not the claims of others. Or perhaps more likely, assume that another court, guided by the majority opinion’s silence and not the dissent, disagrees with Justice Kagan and decides that a rejected offer can moot an entire collective case. If courts interpret this to mean that all other workers no longer have a claim, corporations can dispense with every collective action against them simply by buying off just one worker at an astronomically lower price than litigating or settling with all the workers. And it’s possible courts could also apply this to the other mechanism that enables plaintiffs to band together, the class action.

The irony here is that collective and class action mechanisms exist because it costs too much and is too inefficient for any one consumer or worker to challenge a company-wide policy. So individuals can’t challenge a policy alone, but corporations can dispense with their collective lawsuit, by resolving the claim with just one person. Another example of the Roberts Court’s brand of access to justice.

Handcuffing a prisoner to a hitching post for seven hours, denying him water, and then taunting him about his thirst as the summer sun beat down upon him was a “a cost-effective, safe and relatively pain-free way to impel inmates to work,” according to the Alabama Department of Corrections, and a brief filed by former Alabama Attorney General William Pryor (R) in 2002 called upon the Supreme Court to defer to this determination. Thanks to President George W. Bush, Pryor is now a federal appellate judge. And, if Senate Minority Leader Mitch McConnell (R-KY) gets his way, he will soon have even more control over what kinds of punishments are doled out to federal defendants.

The powerful United States Sentencing Commission sets the federal sentencing guidelines which form the basis of most criminal sentencing handed down by federal judges. Although there are some constitutional limits on the extent to which the Commission can increase federal sentences by altering the Guidelines, they remain one of the most potent vehicles for shaping federal sentences. Because no more than four of the Commission’s seven voting members may belong to the same party, the President traditionally names three members selected by leaders of his opposition party. According to the White House, McConnell selected Pryor to hold one of the Republican Party’s three seats.

There are many reasons why Judge Pryor is a bad choice for any position that requires him to show mercy and compassion, but his conduct in the hitching post case it one of the most blatant. Alabama’s practice of handcuffing prisoners to hitching posts reached the Supreme Court in 2002, and the Court’s description of the practice alleged in that case little doubt that it amounts to torture:

On May 11, 1995, while Hope was working in a chain gang near an interstate highway, he got into an argument with another inmate. Both men were taken back to the Limestone prison and handcuffed to a hitching post. Hope was released two hours later, after the guard captain determined that the altercation had been caused by the other inmate. During his two hours on the post, Hope was offered drinking water and a bathroom break every 15 minutes, and his responses to these offers were recorded on an activity log. Because he was only slightly taller than the hitching post, his arms were above shoulder height and grew tired from being handcuffed so high. Whenever he tried moving his arms to improve his circulation, the handcuffs cut into his wrists, causing pain and discomfort.

On June 7, 1995, Hope was punished more severely. He took a nap during the morning bus ride to the chaingang’s worksite, and when it arrived he was less than prompt in responding to an order to get off the bus. An exchange of vulgar remarks led to a wrestling match with a guard. Four other guards intervened, subdued Hope, handcuffed him, placed him in leg irons and transported him back to the prison where he was put on the hitching post. The guards made him take off his shirt, and he remained shirtless all day while the sun burned his skin. He remained attached to the post for approximately seven hours. During this 7 hour period, he was given water only once or twice and was given no bathroom breaks. At one point, a guard taunted Hope about his thirst. According to Hope’s affidavit: “[The guard] first gave water to some dogs, then brought the water cooler closer to me, removed its lid, and kicked the cooler over, spilling the water onto the ground.”

This is what Judge Pryor’s brief asked the Court to wave off as a “a cost-effective, safe and relatively pain-free way to impel inmates to work.” And Mitch McConnell believes that such a man should be allowed to decide which punishments are appropriate for all federal defendants.

Pryor is also a staunch defender of the death penalty, who even once argued that states should be free to execute the intellectually disabled. And he lobbied against a bill changing Alabama’s primary method of carrying out executions from electrocution to lethal injections, arguing that Alabama should not be “bullied by the fear that the Supreme Court” would declare the electric chair unconstitutional.

What started out as a case about whether corporations could be held accountable in U.S. courts for human rights abuses against foreigners abroad turned into a case about whether anyone can be held accountable. And on Wednesday, the U.S. Supreme Court held that the answer is, mostly, no.

In a sweeping holding, Chief Justice John Roberts led a splintered court in ruling that several Nigerians alleging an oil company aided an abetted torture, arbitrary killings, and indefinite detention could not sue, because the corporate conduct occurred outside the United States. Roberts reasoned that what is known as the “presumption against extraterritoriality” applies to a 200-year-old statute that authorizes civil lawsuits by “aliens” for “violations of the law of nations,” meaning courts should err against enforcing a law intended to punish egregious foreign conduct in the frequent instances when that conduct takes place in a foreign country.

“[T]here is no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms,” Justice Roberts wrote for the majority in Kiobel v. Royal Dutch Petroleum.

Roberts’ conclusion is rebutted by the very conduct the Alien Tort Statute was designed to prevent. Piracy was one of the primary torts targeted by Congress at the time of ATS’ passage – conduct that inherently takes place on the high seas. Justice Stephen Breyer explains in a four-justice concurring opinion that would decide the case on significantly narrower grounds:

As I have indicated, we should treat this Nation’s interest in not becoming a safe harbor for violators of the most fundamental international norms as an important jurisdiction related interest justifying application of the ATS in light of the statute’s basic purposes—in particular that of compensating those who have suffered harm at the hands of, e.g., torturers or other modern pirates. Nothing in the statute or its history suggests that our courts should turn a blind eye to the plight of victims in that “handful of heinous actions.”

Now, that handful of heinous actions will have to find remedy elsewhere. This decision not only means that Nigerians cannot sue foreign corporations for their conduct abroad. On this particular point, the four-justice Breyer concurrence agreed that this case did not pass muster. Roberts’ sweeping pronouncement against extraterritoriality may also mean that foreign nationals subject to abuse, for example, at the hands of a U.S. corporation that houses its factories in places whose laws shield it from liability, or an American citizen who commits human rights violations abroad against foreigners, also could not be subject to suit in the United States.

In two recent federal appeals court decisions, lawsuits that challenged torture abroad by two foreign actors were allowed to proceed in U.S. courts because the defendants had lived or were living in the United States. As Justice Breyer points out, Congress is aware that the ATS is the basis for these sorts of lawsuits, and has not sought to amend the act in any way – likely because they recognize that the act was intended to target foreign conduct that is otherwise difficult to reach. But that did not stop the Roberts majority from inferring the narrowest possible congressional intent.

The scope of the opinion will not become clear until it is interpreted by courts. Extraterritoriality is a legal concept that asks not just whether conduct took place abroad, but also whether the claims “touch and concern the territory of the United States” such that a plaintiff can overcome the presumption against them. The only hint the court gives is that lawsuits against corporations will face a particularly heavy burden, noting, “Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.”

What is clear is that the presumption is exceedingly difficult to overcome, and that both individuals and corporations have a high chance of skirting liability simply by doing their dirty work elsewhere.

This week, a federal appeals court upheld a particularly harsh drug sentence for Cameron Douglas, son of actor Michael Douglas. When Douglas was initially sentenced, he received an unusually light punishment of 60 months in prison for conspiring to distribute methamphetamine and cocaine, in large part because he agreed to testify against his suppliers and presented evidence about his struggle with addiction to heroin. But when it was discovered that Douglas had repeatedly smuggled drugs into both prison and house arrest, Douglas was convicted for new crimes, and punished for his “deceitful conduct,” with a sentence for the second crime that was well above the federal guidelines.

A three-judge panel upheld the sentence, holding that while the punishment was “extraordinary,” so, too, are the facts. Even with the second harsh sentence, they reasoned, Douglas still received less than the ten-year mandatory minimum sentence he would have received for his original crime had he not negotiated a particularly favorable plea deal. But while heeding the law and the facts of this case, the judges lamented that the problem of addiction is treated as a criminal and not a medical one.

“It may well be that the nation would be better served by a medical approach to treating and preventing addiction than by a criminal-justice-based ‘war on drugs,’” wrote Judge Gerard E. Lynch for the majority. Concurring in the opinion was Judge Guido Calabresi, a prominent intellectual heavyweight appointed by President Clinton, but also a founder of the conservative law and economics movement. Calabresi, like the rest of the panel, acknowledged the constraints of existing law, but not without a compelling statement on the perversity of Congress’ choice to favor imprisonment for drug crimes:

I join the majority opinion in full because I agree that it is not substantively unreasonable for a district judge, after having given a defendant a number of breaks and second chances, to impose a sentence like this one. I write separately to emphasize my view that a term of imprisonment of between 5 and 10 years ought not to be seen merely as a punishment. It also must represent an expression of some faith that the convict might be rehabilitated within that time.

Prisons should have a duty, therefore, not just to keep the convict locked away, but to enhance his ability to become a responsible citizen. When the convict’s crime involves drug addiction, a necessary part of this rehabilitation is enforced, medically monitored withdrawal. Congress has passed a law criminalizing possession of drugs by an inmate in federal prison, and there is no question that Douglas broke that law and manifested, as the majority opinion shows, a high level of culpability. There is also no question in my mind, however, that the incidence of this crime also demonstrates a significant level of culpability on the part of the jailing institution. When a prison cannot protect an addicted inmate from the capacity to relapse, it has failed to perform an essential obligation – an obligation that it owes both to the inmate and to the society that the inmate will someday rejoin.

I underscore what is suggested in the last paragraphs of the majority opinion, that Congress’s choice to make the use of drugs, and that use in prison, crimes, is highly problematical. No one has made the argument that this is an unconstitutional penalty imposed upon Douglas because of his status as an addict, and I believe no such argument can convincingly be made. As a result, our Court has no authority to stand in the way of the operation of this law, even though our experience with such cases may lead us to think it is counterproductive. And so we must affirm the district court and enforce that law. We can, however, make observations based on our experience. This law and laws like it require district courts to confront a vexing question every day: how to treat addicts who have suffered a relapse. We are not permitted to treat this question as a medical one, although, in some sense, it is. We dismiss Douglas’s argument that he should be treated as a victim of his drug abuse, rather than as a criminal, both because that is not a legal argument, and because it seems to ask us to treat him differently from the thousands of other addicts we see every year. But it remains true that these defendants are all victims. The multiple costs of our imprisonment approach – including the expense of filling our prisons with drug addicts, to mention just a base economic cost – impel me to express the hope that Congress may some day seek out a different way of dealing with this problem.

Calabresi, who was hired as Yale Law School’s youngest ever professor before becoming the school’s dean, is particularly well-positioned to speak out. In addition to garnering respect from both the left and the right for his academic accomplishments, he has almost 20 years of experience as a federal judge reviewing cases like Douglas’. Like a group of doctors who launched a campaign around Douglas’ case to treat addiction as a medical problem, Calabresi seized on the prominent sentencing as an opportunity to express exasperation at a broken and misdirected drug policy. Several of his fellow judges have lamented the absurd sentencing laws for federal drug crimes.

Eden Foods is one of several for-profit corporations challenging Obama Administration rules requiring most employer-provided health plans to cover birth control, on the questionable legal theory that Eden is immune to these rules because its owner has religious objections to birth control. According to Eden’s legal complaint, Eden’s owner “Michael Potter holds religious beliefs that prevent him from participating in, paying for, training others to engage in, or otherwise supporting contraception, abortion, and abortifacients.”

In an interview with Salon’s Irin Carmon, however, Potter’s supposed religious beliefs are unusually absent. Rather, Carmon quotes Potter raising objections to the birth control rules that have nothing whatsoever to do with his faith:

“I’ve got more interest in good quality long underwear than I have in birth control pills,” [Potter] said to me. . . . [I] asked why he said he didn’t care about birth control, since he filed a suit about it and all.

“Because I’m a man, number one and it’s really none of my business what women do,” Potter said. So, then, why bother suing? “Because I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control. What gives them the right to tell me that I have to do that? That’s my issue, that’s what I object to, and that’s the beginning and end of the story.” He added, “I’m not trying to get birth control out of Rite Aid or Wal-Mart, but don’t tell me I gotta pay for it.”

The reason why these quotes matter is because there is nothing in federal law allowing someone to sue because they generally object to having the government tell them what to do — if that were the case, speed limits, workplace safety laws and the minimum wage would all be illegal. Instead, a federal law known as the Religious Freedom Restoration Act (RFRA) permits people to challenge federal laws only when those laws “substantially burden a person’s exercise of religion.” Potter can’t get into federal court because he does not like the birth control law, he can only get into court if he has a religious objection to birth control. And yet, here he is telling a reporter that “the beginning and end” of his objection to the Obama Administration’s rules is that he does not think the federal government should have the power to tell him to provide certain benefits to his employees — not that he believes that such laws burden his faith.

If Potter does not actually object to the birth control rules on religious grounds, then that’s the end of his case. As a federal appeals court explained in a decision that is binding upon the judge hearing the Eden Foods case, a plaintiff may only invoke the protections of RFRA when a law burdens “a religious belief rather than a philosophy or way of life,” and when the plaintiff’s purported religious belief is “sincerely held.”

As we have previously explained, the case for allowing for-profit corporations to claim that they are immune to federal law on religious groups is very weak — at least under current law. In the Eden Foods case, however, there may not be a need to reach the broader question of whether a for-profit company can immunize itself from the law because of its owner’s religious views. Based on Carmon’s reporting, it’s not at all clear that Potter actually holds the religious beliefs that make up the backbone of his case.

Last November, Wisconsin was able to run a fair election unmarred by one of the Republican Party’s favorite voter suppression tactics because two lower courts struck down the state’s unconstitutional voter ID law, and the conservative state supreme court repeatedly refused requests to take up the case before it winds its way through the normal appeals process. Now, a group of Wisconsin Republicans are pushing legislation to ensure that something like this never happens again:

Since 2011, circuit judges have blocked all or parts of laws backed by Republicans that required voters to show photo ID at the polls, limited collective bargaining for public employees and expanded the governor’s power over administrative rules. Under a measure announced Wednesday, such injunctions would be automatically stayed as soon as they were appealed – meaning laws that were blocked would be put back in effect until a higher court issued a ruling. . . .

Currently, circuit court orders in general may not be stayed while an appeal is pending. Under the bill, circuit court orders blocking state laws could immediately be appealed. If appeals were filed within 10 days, the circuit court order would immediately be stayed. The Court of Appeals and the Supreme Court would have the power to reinstate the circuit court’s decision while the appeal was pending.

To be sure, there are sensible positions between generally not allowing stays and making them automatic, but it’s difficult to view this bill as anything other than a Republican power grab. It’s also unconstitutional, according to a former Republican appointee to the state supreme court. Former Justice Janine Geske, who was appointed to the bench by Republican Gov. Tommy Thompson, says that “[t]o statutorily undo a court order before another court has acted on it is clearly to me an infringement on a court’s independence, and I don’t think it will withstand constitutional scrutiny.”

An anti-abortion student group in Roswell, New Mexico thought it would be a good idea to pass out hundreds of small rubber replicas of fetuses to students at two high schools. As it turns out, this was not such a good idea:

Both schools experienced doll-related disruptions that day. Many students pulled the dolls apart, tearing the heads off and using them as rubber balls or sticking them on pencil tops. Others threw dolls and doll parts at the “popcorn” ceilings so they became stuck. Dolls were used to plug toilets. Several students covered the dolls in hand sanitizer and lit them on fire. One or more male students removed the dolls’ heads, inverted the bodies to make them resemble penises, and hung them on the outside of their pants’ zippers.

Teachers at both schools complained that students’ preoccupation with the dolls disrupted classroom instruction. While teachers were trying to instruct, students threw dolls and doll heads across classrooms, at one another, and into wastebaskets. Some teachers said the disruptions took eight to 10 minutes each class period, and others said their teaching plans were derailed entirely. An honors freshman English class canceled a scheduled test because students had become engaged in name calling and insults over the topic of abortion. A Roswell security officer described the day as “a disaster” because of the dolls

So rubber fetuses legitimately disrupted these schools’ learning environments, and the school administration had a way of shutting that whole thing down. After school officials ordered the student groups to stop distributing the fetuses, several students involved in the groups sued the school, claiming they had a First Amendment right to distribute these rubber toilet-cloggers to their fellow students.

On Monday, the United States Court of Appeals for the Tenth Circuit disagreed. As the unanimous court explained, a school may limit student speech when it reasonably forecasts such speech would “‘would materially and substantially interfere with the requirements of appropriate discipline in operation of the school,’ or ‘impinge upon the rights of other students.’” In this case, school officials didn’t just forecast substantial disruption from the rubber fetuses, they watched it unfold.

As the court emphasized, it would have been unconstitutional for the school to outright forbid discussion of abortion, so long as that discussion was carried on in a non-disruptive way.

As ThinkProgress has previously explained, the United States Court of Appeals for the District of Columbia Circuit is the second most powerful court in the country. It’s also a bastion of right-wing jurisprudence thanks in no small part to Senate Republican filibusters. Two George W. Bush appointees on this court recently struck down clean air regulations that would have prevented “between 13,000 and 34,000 premature deaths, 15,000 non-fatal heart attacks, 19,000 hospital and emergency room visits and 1.8 million days of missed work or school for each year.” Three conservative members of the court handed down a decision earlier this year that would make much of American labor law completely unenforceable, and render an important agency created to check Wall Street impotent to boot. At least two of the Court’s judges believe that all business, workplace or Wall Street regulation is constitutionally suspect.

Time, however, is a harsh mistress, and several of the court’s older Republican appointees have taken partial retirement in the last several years. As a result, this court that once boasted one of the most lopsided lineups in the country now is split 4-3 between Democratic and Republican appointees. Moreover, the Senate Judiciary Committee held a hearing Wednesday on the nomination of Sri Srinivasan to the DC Circuit, a nominee brimming with conservative endorsers and past jobs working for Republican judges and administrations. If Srinivasan is confirmed, Republican-appointees will no longer have a majority among the active judges on the nation’s second-highest court. If another Obama nominee is confirmed to one of the three remaining vacancies, Republican-appointees will be in the minority.

Which explains why Sen. Chuck Grassley (R-IA) used Srinivasan’s hearing to introduce legislation ensuring that this won’t happen:

I would like to spend a couple minutes discussing the D.C. Circuit. As most of my colleagues know, the D.C. Circuit is the least busy circuit in the country. In fact, it ranks last or almost last in nearly every category that measures workload.

Based on the 2012 statistics from the Administrative Office of the U.S. Courts, the D.C. Circuit has the fewest number of appeals filed per authorized judgeship, with 108. By way of comparison, the 11th Circuit ranks first with over 5 times as many appeals filed per authorized judgeship, with 583. . . . Given this imbalance in workload, today I am introducing the Court Efficiency Act. A number of my colleagues are co-sponsoring the legislation, including Senators Hatch, Sessions, Graham, Cornyn, Lee, Cruz and Flake.

This legislation is straightforward. It would add a seat to the Second and the Eleventh Circuits. At the same time, it would reduce the number of authorized judgeships for the D.C. Circuit from 11 to 8.

While it is true that the DC Circuit’s caseload is relatively small in terms of raw numbers, Grassley’s statistics are highly misleading. Unlike other federal courts of appeal, the DC Circuit hears an unusually large number of major regulatory and national security cases, many of which require very specialized legal research, involve intensely long records, and take more time for a judge to process than four or five normal cases of the kinds heard in other circuits. The caseloads outside of the DC Circuit include many routine sentencing, immigration and other cases of the kinds that are often dispatched with in brief orders drafted by staff attorneys (who then have these orders approved by judges). The DC Circuit, by contrast, hears far fewer of these easy cases that require very little work on the part of judges.

Indeed, it’s likely that even Chuck Grassley understands that Chuck Grassley’s numbers are misleading. In 2005, Grassley voted to confirm Judge Janice Rogers Brown, a Bush appointee to the DC Circuit. Brown was the tenth active judge on the DC Circuit when she took her seat. Shortly thereafter, Grassley voted to confirm Judge Thomas Griffith. Griffith was the eleventh active judge on the DC Circuit at the time of his confirmation.

Now that President Obama is naming judges, however, Grassley suddenly thinks the DC Circuit is so underworked that it needs just eight judges. This isn’t credible. If Grassley tries to use this excuse in the future to block an Obama nominee to the DC Circuit, Senate Democrats can respond by nuking the filibuster and making Grassley’s transparently self-serving views irrelevant.

In major trials scheduled to go before federal judges, public defenders are abruptly being furloughed, in some cases replaced by court-appointed lawyers who will have to familiarize themselves with highly complex cases. This week, the judge overseeing the trial of Osama bin Laden’s son-in-law Abu Ghaith, said the five-and-a-half-week furlough of the lawyer representing Ghaith might force him to push the trial back from September 2013 to January 2014. Judge Lewis A. Kaplan was appalled by that possibility, saying:

It’s extremely troublesome to contemplate the possibility of a case of this nature being delayed because of sequestration. Let me say only that — stunning.

All federal public defenders in New York are taking mandatory five-and-a-half week furloughs until the end of September, but many are being replaced with court-appointed lawyers who may end up costing the public more than the defenders, given their lack of familiarity with caseloads. ThinkProgress previously reported that public defenders, many already stretched too thin to adequately manage overwhelming caseloads, would be hit six times harder than prosecutors by the sequester, meaning that prosecutors can keep bringing cases that public defenders will be even more strained to defend. Now, the impacts are starting to manifest themselves in even more extreme ways than predicted, as mandatory furloughs and budget cuts approach. Other offices facing mandatory cuts are resorting to extreme measures to cut expenditures in a system whose primary expenses are salary and necessary investigatory procedures. In a southern Ohio office, director Steve Nolder fired himself after cutting every other corner he could find. Other federal defender offices will see once-a-week furloughs, as courthouses cut one day a week of criminal hearings. These furloughs and closures mean more than justice delayed. They also mean public defenders have even less time to devote to any client, and that defendants being held in pretrial detention are left waiting in jail (at significant public expense). All of this creates arguably unconstitutional conditions that violate defendants’ Sixth Amendment right to counsel. The landmark case establishing that right, Gideon v. Wainright, celebrated its 50th anniversary just last month.

The cuts are exacerbated by a vacancy crisis on the federal courts, due in large part to Senate obstruction of Obama’s judicial nominees. Even before the sequester, some federal judges reported having to resort to “assembly-line fashion,” sentencing, meaning “you  herd everybody into the courtroom and you start sentencing just running down the row.” Meanwhile, the explosion of the federal criminal docket has resulted in a 790 percent spike in the federal prison population since 1980.

 

Senate Minority Leader Mitch McConnell (R-KY) does not much like it when the Senate is getting things done. Indeed, the frequency of filibusters more than doubled after McConnell became his party’s leader in the Senate. But, as Bloomberg reports, the Minority Leader has now outdone his own ability to come up with reasons for the Senate to avoid doing its job:

The Senate was supposed to vote this afternoon on the nomination of Patty Shwartz as a judge on the 3rd U.S. Circuit Court of Appeals. That vote has been postponed until tomorrow because Minority Leader Mitch McConnell has other plans: Kentucky’s senior senator will be in the sea of red at the Georgia Dome in Atlanta as his University of Louisville Cardinals take on the University of Michigan Wolverines for the men’s NCAA basketball championship. . . .

Why the schedule foul-up? On March 31, Louisville knocked off Duke University to qualify for the Final Four, setting up a potential conflict for McConnell between the Senate vote and the championship game. He has been a frequent face in the crowd at the team’s NCAA tournament games this year.

A senior Democratic aide said the schedule was adjusted in the expectation that if Louisville made it to the final round, McConnell would want to go to the game. McConnell spokesman Don Stewart pointed out that the schedule change was made before Louisville won its Final Four game against Wichita State University on Saturday and the finals match-up was known.

For the record, it takes 51 votes to confirm a judge, and only 60 to break the filibusters that are now ubiquitous under McConnell’s leadership — and the Senate contains 99 other senators who don’t think that attending a basketball game is more important than their day job. Even excusing McConnell’s decision to place his personal needs ahead of the country, there is no good reason why the Senate cannot simply confirm Shwartz in McConnell’s absence.