Fresh Updates from RAC

Gridlock in Congress has been the topic of many articles, blog posts, angry rants and headaches for a long time. Setting aside the many legislative issues that are hotly debated and brought to a halt for one reason or another, the confirmation process for judicial and Administration nominees has shown less movement than a pond of stagnant water. On Thursday a group of senators marched out of the Environment and Public Works committee hearing, effectively blocking the nomination of Gina McCarthy to the Environmental Protection Agency.

The McCarthy example is just that—an example. For the past several congresses under the leadership of both parties, the confirmation process for many important positions in the judicial and administrative branches of government has been unbelievably slow.  There are currently 82 vacant positions for federal judges. According to a CRS report, non-controversial circuit court nominees take, on average, 227 days to be confirmed after they are nominated. Under the Reagan Administration the average wait time was 64.5 days. While the wait time has been growing steadily since 1981, the fact that almost 64% of nominees now wait for over 200 days for confirmation now, when only 5% waited that long in the ‘80s, spells out just how unreasonably slow the confirmation process has been.

Jewish tradition teaches the necessity of fair, just and impartial courts. In Exodus 18:21, for example, Moses’ father-in-law, Jethro, advises him to choose capable, trustworthy and law abiding members of society as judges. We are also taught of the ethical obligation to oppose unjust persons and unfair judgments; judges should neither “favor the poor nor show deference to the rich” (Leviticus 19:15). The importance of justice is, thus, a key part of Jewish tradition. When nominees to our courts and other key government positions are unreasonably held up, it can cause significant repercussions for the effectiveness of our public institutions; in truth, justice delayed is justice denied.

Image Courtesy of Times Higher Education (THE).

America is in a state of emergency. This time, I’m not talking about Hurricane Sandy, or the fiscal cliff or domestic violence. I’m talking about the state of judicial emergencies that exists in 33 places across our country and that compromises our democratic system.

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Very little in the Old Testament is coincidental. The reappearance of words, the choice of names, the span of time – everything can be linked to a greater or deeper theological meaning. This is especially true with numbers. Whole fields of study and schools of thought have arisen around the idea that numbers in the Torah are symbolic and meaningful. This claim is hard to deny when we think about the number seven. There are countless examples of the appearance of the number seven, many of which are in some way connected to the idea of wholeness or completion (seven days in a week, for example!).

It’s therefore probably not that surprising that the Book of Judges is the seventh book of the Tanakh (the Old Testament). The judges described in this book were more than legal advisors – they were the leaders of the community. They emerged when the Israelites had become so corrupted that they needed to be rescued, and were selected by God for just this task.

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Judaism has many different depictions of God. At various times in our liturgy, we call God our father, our king, our redeemer, our teacher, our helper, our savior and our shield—among many others. As we move into the high holidays, we switch over to liturgy dominated by an alternative image of God: God as a judge. Our actions from the past year are recounted and tallied, and decisions about our fate are sealed in the book of life.

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Perhaps you, like myself and many others, were perched in front of your computer, a television, or in front of the Supreme Court itself yesterday, awaiting the decision on the constitutionality of the Affordable Care Act (ACA). As I sat at my desk, attempting to quell flickering speculations about the ruling and its consequences for Americans, the decision that suddenly flashed before my eyes was both unexpected and most welcome: “We have a health care opinion.” I froze. “The individual mandate survives as a tax.”

In a 5-4 decision, Chief Justice Roberts, who wrote the majority opinion, along with Justices Kagan, Sotomayor, Breyer and Ginsburg, ruled that the minimum coverage requirement, the provision that most Americans must purchase health insurance by 2014 or pay a penalty, is a tax and is thus an appropriate expression of Congress’ power.

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Over a month ago, the Senate leadership struck a bipartisan deal pledging to vote on a package of 14 judicial nominees, thereby momentarily addressing the pervasive obstructionism to judicial appointments. While this deal effectively stimulated voting on judicial vacancies, it did not even begin to address the urgent need for a real commitment to filling our nation’s benches. Judicial nominations have been subject to the worst kind of politics by placing the justice system for which we pride ourselves at risk for the purpose of partisan battles.

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Oral arguments in what could be the most historic Supreme Court case of the 20^th century have concluded, but the deliberations are just beginning. We must now anxiously wait for the Court to hand down its decision, which is expected this summer.

Audio recordings from the courtroom have been released, and the political pundits have weighed in—but we should be wary of assuming what conclusion the justices will reach regarding the constitutionality of the Affordable Care Act.

On Monday, the justices heard arguments on whether they could even consider the constitutionality of the individual mandate now, since a longstanding law called the Anti-Injunction Act bars hearings on tax-related issues until that tax has actually been levied, and the penalties for failing to buy insurance do not go into effect until 2014. Although the Court continued to hear arguments on the law’s merits through Wednesday, it is still entirely possible that the Court will rule that the Anti-Injunction Act applies, which would mean challenges to the individual mandate are not yet ripe for review. That being said, court watchers tend to agree that the justices will likely do the opposite and proceed with a ruling on the merits.

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It’s the third and final day for the Affordable Care Act at the Supreme Court, and the topics of severability and Medicaid expansion take center stage.

The justices spent 90 minutes this morning listening to arguments on the issue of severability, which is the principle that determines the fate of the whole law should the individual mandate be struck down.  Let’s assume for a moment that the minimum coverage requirement is found to be unconstitutional. The Court must then decide whether the provision is severable or not severable from the rest of the law. That is, can other provisions in the ACA function independently, or is the individual mandate necessary for the proper execution of the whole law.

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