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A second Trump Term would further the right’s assault on our federal Courts

By October 28, 2020 One Comment

By Jody DiPerna
Pittsburgh Current Sr. Contributor
Jody@pittsburghcurrent.com

“When we’re looking at elections, we’re often thinking more about the Supreme Court and not thinking about the multitude of other benches that are filled regularly. As a general population, we don’t necessarily hear about those, yet often those courts have a direct impact on each of us and set precedents for other cases that are heard,” according to Dr. Josie Badger, DHCE, CRC. Badger is a disability rights activist and the co-director of RAISE, as well as a UWSWPA #IWantToWork Campaign Manager, and she keeps a close watch on the federal court system.

Badger was pointing to the lower federal district courts, which are as vital an element in the architecture of American jurisprudence as the Supreme Court, even if they receive much less attention. And, in fact, being appointed to the federal district court is the exact same process.

“A lot of people don’t know that all 100 senators vote to confirm a judge that sits on the bench in Pittsburgh — Susan Collins in Maine votes on the judge that sits in Pittsburgh,” Kadida Kenner, the director for campaigns for the Pennsylvania Budget and Policy Center, pointed out.

Like those Supreme Court Justices confirmed by the Senate, all federal judgeships are lifetime appointments, which means those judges will be hearing cases for a very long time.

“Most of these confirmations from the Trump administration is that these guys — and I’m saying guys because seventy-six percent of them have been men — they are mostly in their forties. They’ll be on the bench for 30 or 35 years,” Kenner added.

WHAT THE FEDERAL COURTS DO

The federal courts are different from the state courts. In Pennsylvania, these are the Court of Common Pleas which adjudicate matters in each respective county. If you get in a car accident, or you get a divorce, or you get arrested for a DUI, your case will go to the Court of Common Pleas for Allegheny County. Also, state judges (in the Court of Common Pleas, but other state courts like Superior and Commonwealth Courts) are elected, not appointed, so their terms are much, much shorter.

They differ in another way, too. Federal courts also tend to hear different kinds of cases than the state courts, cases which protect the rights of people in a distinct way.

“Basically, federal courts are courts of both general and limited jurisdiction. General in the sense that they cover all the people, but limited in the sense that they are there to cover federal matters,” David Harris explained with regard to both the scope and purpose of the federal courts system. Harris is the Sally Ann Semenko Chair at the University of Pittsburgh Law School and has many years of experience working as a lawyer in these courts.

“Saying it’s limited doesn’t mean it’s unimportant. Federal government and federal law tends to be a guarantor of certain kinds of rights — the rights of workers, or the rights of differently abled people, or the rights of people against racial, ethnic and gender discrimination,” he said.

Some states have protections for some of those things under individual state laws but most often anything that is a constitutional right is adjudicated in the federal courts. These are the places that citizens go to get redress or relief, often when the state itself has infringed upon their rights.

“This affects regular people who have no other recourse. This is supposed to be how people resolve their disputes. You know how people say, ‘don’t make it a federal case?’ Well, this is how people resolve their major disputes,” according to  Jalila Jefferson-Bullock, MA, JD, Associate Professor at Duquesne School of Law.

“This is supposed to be a place that is accessible to all of us — rich people, poor people, whomever — we’re supposed to be able to go and have our disputes and have our grievances aired in federal court.”

There are three levels of federal court:  Supreme Court, Circuit Courts (also referred to as Federal Court of Appeals) and District Courts, with Pennsylvania being divided into three judicial districts:  Eastern, Middle and Western. The Western District Court covers Allegheny County and 24 other counties as far flung as Elk and Bedford.

The judges who sit in these federal district courts have a tremendous and very direct impact on our lives, despite the fact that their appointments receive very little spotlight. It’s important to remember the role these judges play in our justice system, according to professor Jefferson-Bullock.

“What federal judges do, they manage jury selections and instructions. They are the sentencers. They take criminal pleas. They rule on the admissibility of evidence. All of this is very, very important to a fair administration of justice,” she said. Allowing, or not allowing, a single key piece of evidence can completely turn a case, as the judge’s decisions during jury selection.

WHAT CASES END UP IN FEDERAL COURT?

2020 Pandemic

The response to the pandemic has found its way to the local federal courts. On September 14th, Judge William Stickman, IV, a District Judge in Pennsylvania’s Western District, ruled that Governor Tom Wolf’s shutdown order intended to flatten the curve and stop the spread of coronavirus was unconstitutional. In a 66-page opinion, Judge Stickman wrote that it violated the First Amendment right to freedom of assembly, and the Due Process and Equal Protection clauses of the 14th Amendment.

The plaintiffs in the case of Butler v Wolf included four counties (Butler, Fayette, Greene and Washington), US Congressman Mike Kelly (R-16th District), and state Representatives Daryl Metcalfe (R-Pa 12th), Marci Mustello (R-Pa 11th) and Tim Bonner (R-Pa 8th), as well as several businesses.

Wolf requested a stay and said he would appeal the case to the Federal Court of Appeals (or the Circuit Courts.) The request for stay was also heard by Judge Stickman. He denied the request.

In the meantime, the number of COVID-19 cases in Allegheny County has risen again to the highest levels they have been since May. The ruling limits the steps the Governor can take to slow the spread of the virus as we head into winter.

“[W]ith regard to Governor Wolf’s coronavirus restrictions, the approach he [Stickman] took was so different from other federal judges because he didn’t say that Governor Wolf’s orders violated the state constitution. No. He said they violated the United States Constitution,” according to Jefferson-Bullock. “Which means that he was hoping that his decision would have a nationwide impact. That’s a very different way of looking at these coronavirus restrictions from the federal judiciary standpoint.”

Americans with

Disabilities Act

When thinking about other decisions that might be made in the Western District, cases that fall under the Americans with Disabilities Act (ADA) is a good place to look. The ADA prohibits discrimination against people with disabilities in a variety of areas — employment, transportation, public accommodations, communications, housing, and access to state and local government programs and services.

In 2020, things like curb-cuts and wheelchair accessible ramps and doors are normal, expected, and ordinary, but it wasn’t always so. Providing and protecting access for people with disabilities seems like it would have been a slam dunk agenda with bipartisan support, but it was a battle to get the legislation passed. It would be too burdensome, said some. It would cost too much for companies to retrofit spaces, said others.

Disabled people fought for decades to demand their rights and full inclusion in American society. In March of 1990, disability advocates marched to the Capitol Building in Washington, DC. About 60 of them, many of whom needed aids like braces, walkers or wheelchairs to get around, tossed aside their mobility aids and literally crawled up the Capitol steps. It was a shocking visual. It was meant to embarrass legislators into action.

It worked. In July of 1990, the ADA was signed into law by President George H.W. Bush.

“It’s almost hard to explain, because it was so ridiculous,” recalled Paul O’Hanlon of the inaccessibility of simple things before the ADA. A retired lawyer and disability rights advocate, O’Hanlon says that everything was hard and some things were nearly impossible. Before the summer of 1990, some cities and towns made accessibility a priority and some businesses did, too. But it was catch as catch can, and a disabled person never knew what they were going to find when they went someplace new.

“I was going to Pitt as an undergrad and there weren’t curb cuts in those days. One of the things I depended on was a driveway — it was a way for me to get from the street up onto the sidewalk,” he said. “They paved it over and put a curb there. I complained to Pitt and the guy I talked to said he was determined to never put a curb cut in that intersection because it’s too dangerous for wheelchairs to cross there. I said, you realize that not having curb cuts there doesn’t mean I don’t have to cross there? You’re  just making it harder and more dangerous. It was nonsense,” O’Hanlon said.

It made the straightforward task of going to the library into something which required forethought and planning and sometimes assistance. That’s just how just things were — people with disabilities had to make Herculean adjustments and sometimes the path of least resistance was just staying home.

But the ADA covers much more than curb cuts and, because it is a federal law, most cases are heard in federal court. When O’Hanlon was still practicing law, he worked a big case in the Western District of Pennsylvania against the City Housing Authority because they didn’t have as many wheelchair accessible units as they were required to under the Act.

The fight to fulfill the promise of the ADA continues and those actions will take place in district courts first. Housing remains a battleground, according to Badger.

“There have been pieces that have been touched on with housing — accessible housing, retrofitting for accessible apartments, stuff like that. That has been a difficult one, especially in the northeast of the country because of the older structures. That will continue to come up,” she said.

Both Badger and O’Hanlon also identify accessible transportation as an area that will hit the courts in the near future. O’Hanlon is himself a plaintiff in a class action lawsuit against Uber, “over the fact that Uber doesn’t provide wheelchair accessible vehicles. So it’s not really an accessible service for people who use wheelchairs like I do,” he said.

Other transportation cases may come down the pipeline, too.

“They [Google and Uber] were both trying to get some self-driven vehicles. People with disabilities were being left out of those discussions,” according to Badger. “That will be a case that can determine how the future of self-driving vehicles happens and whether we’re in the equation at all. Because we know that public transportation and Uber and taxi services have not always been the friendliest to people with disabilities. Yet we are the ones that could potentially benefit the most from the availability of these services. When you look at going to doctor’s appointments, independent living, working — the chance of using those automated vehicles could be the key to empower people with disabilities. But if we’re not involved in that discussion, it doesn’t matter.”

According to the CDC, there are 61 million adult Americans, more than a quarter of the population, with some type of disability. The outcomes of these cases will have an enormous impact on everybody’s lives and the arguments may happen right in our backyard.

Civil Rights, Protection from the State, Prisoner Rights and Criminal Cases

If you have been injured or been denied your Constitutional Rights by the police, you may end up filing a civil lawsuit against them and that will likely land in federal court.

“The preferred venue for bringing civil cases against police officers is federal court,” David Harris explained, “because of the existing federal statute.”

Two local civil cases of note have gone through the Federal Court for the Western District of Pennsylvania. After he was beaten following an arrest without probable cause, Jordan Miles pursued a civil case against the City of Pittsburgh Police. A few years later, Leon Ford also filed a civil case in federal court after the police wrongly identified him as a suspect and shot him, leaving him paralyzed.

Harris said that it is not that friendly a venue, because of things like qualified immunity, “but at the very least, you have a court that is set up to vindicate federal rights and that’s generally what we’re talking about in these cases. The right to be free from unreasonable search and seizures, which is false arrest. And excessive force and things like that. It’s the right venue; it’s not the easy venue, necessarily.”

Right now, the Heritage Foundation and other right-wing advocacy groups are targeting Obergfell v Hodges, the 2015 landmark civil rights case in which the Supreme Court ruled that the fundamental right to marry was guaranteed to same-sex couples under the Fourteenth Amendment to the United States Constitution. The challenges to marriage equality will hit the district courts first.

“There is a definite opportunity for the courts to overturn protection that grants members of the LGBTQ community their human and basic civil rights here in this country. That will happen in the federal courts, particularly with the federal judges that the Trump administration is putting in,” Kenner pointed out.

Some immigration and DACA cases land in federal courts, as well as a number of financial cases.

Imprisoned people often look to the federal courts to seek redress, too. This is the venue where prisoners go for help over deleterious prison conditions, overcrowding, and lengthy stretches in solitary confinement.

“Access to healthcare is one that comes up a lot,” according to Jefferson-Bullock. “Prisoners do have the right to adequate health care, maybe not the same type of care that some of us receive on the outside, but they do have a right to adequate healthcare.”

Of course, prosecutions of federal crimes land in the federal district courts. There are RICO, or racketeering cases. For both gun rights advocates and those advocating for limited regulations on guns, all the federal firearms statutes are adjudicated here as well.   

“There have always been federal narcotics statutes dating back to the 1920s and 30s, but the Feds didn’t really get into drug prosecution until the 1970s,” Harris explained about federal drug prosecutions.

“Then with the drug war and the creation of the DEA, you got these new laws passed in the 70s and 80s really upping federal penalties. So you have a fairly robust number of federal drug cases under federal law. We could have a lively discussion over whether that’s good or necessary … but the federal drug cases are a huge number of federal criminal cases,” he said.

COURT PACKING

Court packing has been a trend since before Donald Trump entered the White House, but is now in full-court press mode, according to Kadida Kenner. “What you see now is that this is of major importance to the Republican party. They would rather sail through judges than have some COVID legislation go through. So this is the priority of this administration — to pack and stack the courts in their favor,” she said.

Here in the Western Pennsylvania the data bears that out. There are sixteen District Judges in this district. Seven of those (including Judge Stickman, above) were appointed by President Trump. By contrast, five judges in this district were appointed by George W. Bush and two were appointed by Barack Obama — but both of those presidents served two full terms, compared to a bit less than one-term for Trump.

“This is the last grasp, a power grab,” Kenner said. “If you feel as though you’re about to lose power and influence, then you take over the final independent branch, co-equal branch of government that should remain independent. This is where we are.”

Nationally, in less than four years, the Trump Administration has appointed 194 Federal Judges, including two Supreme Court Justices (Brett Kavanaugh and Neil Gorsuch), with the appointment of Amy Coney Barrett pending. According to the Pew Research Center, that is 24% of all the federal judges in the land and all appointed by a single, one-term president.

But why has he been able to fill so many vacancies? According to Brookings, the reason was the antagonistic confirmation record in the Mitch McConnell-led Senate in 2015 and 2016. McConnell refused to consider Merrick Garland’s Supreme Court nomination by President Obama and just as importantly, McConnell basically shut down the lower court confirmation process, as well. He even laughed about blocking Obama appointments on Sean Hannity’s show. The end result was that the Trump Administration inherited 105 court vacancies (88 district and 17 circuit.)

“The lawyerly answer is, just because a person was appointed by a conservative president doesn’t mean that they will only always espouse what we view as traditional conservative views,” Jefferson-Bullock was quick to point out. Still, these are different times and these appointments feel more ideological than in previous administrations.

“[I]n many ways, he’s so far to the right, and the ideals and principles that he has decided are important to his agenda are so different than what we think of as traditional Republican values, I think people are going to have a difficult time really accessing the courts and receiving a fair administration of justice,” she said.

“This means that our democracy is askew. We have three branches of government that are supposed to check and balance one another. If the judiciary is off-balance, the whole democracy is off balance. That’s a major problem.”

One Comment

  • nostradamus says:

    What the right is doing is restoring the judicial function of our courts from the “legislate from the bench” mentality of the left.

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