We Need President Barack Obama to Stand with Texas Women and Appoint Judges

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In Texas, if you are a progressive, your first and last line of defense from the ALEC inspired, Tea Party passed legislation that comes from the near Republican Super Majorities in our legislature are our courts.

Before I can get to a solution, let me outline the current problem our 3rd branch of government currently faces.

Sadly, there is a crisis in our courts. Judicial vacancies plague the country but Texas is one of the worst offenders. Our federal district courts have 7 vacancies currently. One of those vacancies has existed since President Barack Obama was elected to his first term.  How are those vacancies filled? Well, our duly elected U.S. Senators, Republicans John Cornyn and Ted Cruz, are supposed to give nominees to the White House and then the Senate is supposed to pass them.  As we have seen recently with the filibuster debate, neither of those things is happening. 

Read more below the jump.

The 5th Circuit Court of Appeal, which covers Texas and is based in Louisiana, has two vacancies too. Those vacancies, if you can guess the pattern, are supposed to be from Texas. Unlike the federal district courts though, these nominees actually come from the White House, but because of the Republican stall tactics and backlog of both Executive and Judicial nominees, the White House has been reluctant to bring new nominees up until older nominees get through the process.

This brings me to House Bill 2, which was filibustered famously by Wendy Davis (and many of you). The bill will ban abortions after 20 weeks, impose new regulations on RU-486, require abortion providers to have admitting privileges at nearby hospitals and require all abortion facilities to meet the regulatory standards for ambulatory surgical centers. Which will in turn close all but a handful of facilitates in our very large state.

As the Associate Press has reported, Democrats have vowed to continue the fight against (and rightly so!) in the courts.

Democrats, though, promised a fight in the courts.

“There will be a lawsuit. I promise you,” Dallas Sen. Royce West said on the Senate floor, raising his right hand as if taking an oath.

Democrats offered 20 amendments to the bill, which will ban abortions after 20 weeks, require abortion doctors to have admitting privileges at a nearby hospital and require all abortions take place in surgical centers. They ranged from exceptions for rape and incest to allowing doctors more leeway in prescribing abortion-inducing drugs. But Republicans would have none of it.

The bill is just one of many across the nation championed by anti-abortion groups set on a constitutional challenge to Roe vs Wade, the U.S. Supreme Court decision guaranteeing a woman's right to decide on an abortion before the fetus is viable outside the womb.

Progress Texas has done some incredible research showing how laws similar to the one passed by Republicans Rick Perry, David Dewhurst, Joe Straus, and supported by Attorney General (and candidate for Governor) Greg Abbott, have faced major headwind and hurdles in the courts. 

And there in lies the problem. 

Why? Because of the 22 active judges (a combination of full-time and senior status) serving as an active judge only 7 were appointed by a Democrat. Of the non-senior judges, that number is worse at 5.  To put that in perspective, George W. Bush alone appointed 10 active judges. If you don't factor the semi-retired senior status judges, W. Bush appointed 6. 

Maybe that's why this happens.

Again, the Associate Press:

Texas falls under the 5th Circuit Court of Appeals, which has shown a willingness to accept more stringent limits on abortions. Passing the law also pleases Christian conservatives who make up the majority of Republican primary voters.

With two current vacancies. President Barack Obama has the opportunity to truly stand with Wendy Davis and Texans. He can appoint a fair minded, consensus judge who will listen to the legal arguments and not put party over law as the George W. Bush appointees have. 

Just like we need John Cornyn and Ted Cruz to nominate and help confirm folks to fill the federal district courts, we need the President to nominate and confirm folks now!

We have already seen what happens when the 5th Circuit, filled with partisan Bush judges, react to women's health laws. 

From the Texas Observer:

Chief Judge Edith] Jones [a George W. Bush appointee]took issue with Sparks' thinking too, in the [appeals court's opinion in the sonogram case.

Jones wrote the requirements in the new sonogram law weren't free speech violations, after all, because they're covered by the 1992 U.S. Supreme Court decision in Planned Parenthood of Southeastern Pennsylvania v. Casey. Notably, it's a case Texas' lawyers cited in their defense. Casey opened the door to tougher new “informed consent” requirements from states, and tightened other standards after Roe v. Wade.

As it happens, Jones comes to this case with some predispositions of her own.

Back in 2004, Jones was part of an appellate panel that dismissed a suit from Roe plaintiff Norma McCorvey, who'd hoped to get a second opinion from the Supreme Court, after deciding abortion shouldn't be legal. “McCorvey now argues that abortion harms women – both emotionally and physically – and that social norms have changed, making single motherhood a more palatable option,” the Austin Chronicle reported at the time.

Jones conceded that McCorvey's suit wasn't a live issue anymore, but wrote she hoped the Supreme Court would take up Roe again soon:

In sum, if courts were to delve into the facts underlying Roe … they might conclude that the woman's 'choice' is far more risky and less beneficial… That the Court's constitutional decision-making leaves our nation in a position of willful blindness to evolving knowledge should trouble any dispassionate observer.

In the appellate court's opinion today, Jones follows the same logic that drove Perry, Patrick, and the law's House author, Rep. Sid Miller: A woman going in for an abortion doesn't really know what she wants. During the session, Patrick said the bill “empowers” women.

With gerrymandered districts and out of touch conservative politicians as a near super majority in the Texas legislature, our only avenue to make sure Tea Party policies are kept in check with the state constitution and federal laws, are our courts.  We need President Obama and our U.S. Senators to nominate and appoint judges to fill these judicial vacancies in Texas. 

There is a way for President Obama to stand with Texas women and Wendy Davis, he can help end the crisis in our courts. 

If you agree, there is something you can do right now. Sign this petition and make sure the President and our Senators hear this issue is important to you right now!


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  1. Court Vacancies and theVacant Democrat Party
    What is needed is a Texas Democratic Party that is functional.  Texas is ruled by the rural precincts which the Democrats have abandoned.  I live in a Rural county right next to Houston.  Harris country votes Democrat, right across the county line the vote goes the other way by a substantially more lopsided vote.  

    If the Democrats, who do not seem to know where the battle ground is, do not get out of the urban areas and fight then Texas will be red for a long time.  

    I have been telling you this for years BOR.  Come to my county and help get it organized by gutting the dead wood and finding young workers who understand modern campaigning techniques.  You know, like what voter lists to use to run a get out the vote campaign.  

    When out legislature is overwhelmingly Republican and our Congressional caucus is Republican, how are we to expect to have much clout getting Judicial positions filled.  

    You have to start at home and rebuild a Party that functions.  A party that does not leave the ballot half empty in a large number of its counties.  

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