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His Racism Didn’t Keep South Carolina Magistrate Off Bench

Reprinted with permission from ProPublica.

When South Carolina lawmakers confirmed a batch of new magistrates this year, one nominee stood out from the pack: Mike Pitts.

The former state House member had made a name for himself in Columbia as a staunch defender of the Confederate flag, and on Facebook he has penned anti-immigration screeds and used racially charged language. In May, for example, he posted a photo of New Jersey Sen. Cory Booker, an African American Democrat running for president. His caption: “Cory Booker alway [sic] looks like he just hit crack real hard.”

None of this, however, prompted any discussion in June, when the state Senate confirmed Pitts along with 33 other nominees for the lower courts.

Unlike South Carolina’s felony and appellate court judges, magistrates are not subjected to legislative hearings before lawmakers sign off on their appointments. In fact, there’s rarely any public debate at all. Nominations typically sail through the upper chamber with a single voice vote.

Although magistrates oversee mostly misdemeanor matters, their authority is substantial; each year, they decide hundreds of thousands of cases, including criminal ones that can send someone to prison for months or saddle them with thousands of dollars in fines.

But the confirmation process allows new recruits to escape public scrutiny and sitting magistrates to remain on the bench even after they’ve been disciplined for misconduct, an investigation by The Post and Courier and ProPublica found.

Some appointees have gone on to make racist and sexist comments from the bench.

Magistrate Willie Bethune in Clarendon County, for example, said a defendant was attractive and asked her to show off her bellybutton. He was later accused of pressuring that woman into giving him sexual favors. While he denied the charges, he resigned amid an investigation by the Office of Disciplinary Counsel, which polices judges and lawyers in the state.

Charleston Magistrate James Gosnell, who is white, used a racial slur during a bond hearing for an African American defendant and was reprimanded by the disciplinary office; he described it as an ill-considered attempt to get the man to change his path in life. The judge remains on the bench today, reappointed in May.

Beaufort County Magistrate Peter Lamb called crack cocaine “a black man’s disease” and later resigned. As part of an agreement with the state Supreme Court, he acknowledged misconduct in that instance — and in others — and promised to never seek judicial office again, without permission.

The Post and Courier and ProPublica found Pitts’ Facebook page while researching the backgrounds of all 319 magistrates in South Carolina. Like many magistrates, Pitts, a retired police officer, doesn’t have a law license; to qualify for nomination to the lower courts, applicants need only to earn an undergraduate degree and pass a basic competency exam. Several of his posts appear at odds with key tenets of the state’s judicial code of conduct, which stresses impartiality and strict avoidance of words or actions that demonstrate bias or prejudice.

In a November 2017 post, he complained about people “from the Middle East” in Walmart and wrote, “after being subject to this incident I now support shutting down all immigration until we stop the demise of our culture.” And he has been recently photographed wearing a shirt reading, “Welcome to America Learn the Damn Language!”

In another post, Pitts criticized transgender people, saying “they aren’t sure what the hell they are.”

Pitts, a Republican who recently took the bench, didn’t respond to messages left by phone and email.

Civil rights advocates condemned Pitts’ remarks.

Brenda Murphy, president of the South Carolina chapter of the NAACP, said her group is “totally against” the idea of Pitts donning the robe. “We would not want someone who has made those comments appointed as a magistrate in a local community,” she said.

Some state lawmakers also questioned Pitts’ fitness for the bench.

Republican state Rep. Gary Clary, a former state circuit judge, said the posts could be “grounds for recusal” in cases where people of color or transgender people appear before Pitts.

“That’s the reason judges don’t normally have Facebook and Twitter accounts,” Clary said. “You are supposed to be fair and impartial.”

State Sen. Dick Harpootlian, a Democrat, went further.

“None of us were aware of these posts, or his ethnic and racially insensitive comments, which I think disqualify him as a fair or impartial judge,” Harpootlian, a longtime trial lawyer, said after The Post and Courier described Pitts’ posts.

“If I was Muslim or of Middle Eastern descent, I would be fearful of appearing in front of him.”

A spokesman for Gov. Henry McMaster said no one brought the posts to his attention before McMaster, a Republican, signed off on Pitts’ appointment this year. The governor declined to expand on the issue. ​

Chief Justice Donald Beatty of the South Carolina Supreme Court, who oversees all of the state’s court officials, also declined to comment.

A Republican who served 13 years in the legislature, Pitts has long stoked controversy. When state leaders pressed to remove the Confederate flag from Statehouse grounds in 2015 after the mass shooting at Charleston’s Emanuel AME Church, Pitts was a chief opponent.

The following year, he proposed legislation to require journalists to register with the state government or face fines. And in 2018, Pitts co-sponsored a bill requiring South Carolina lawmakers to consider seceding from the Union if the federal government “confiscates legally purchased firearms.” Neither measure passed.

More recently, his bid to run the state’s land conservation agency fell apart amid concerns that Pitts, an ex-cop, wasn’t qualified for the job. Critics said the move was a political gift to Pitts following retirement from the House last year. He withdrew from consideration, saying the “aggressive inquisition” he faced during a confirmation hearing had harmed his health after a heart attack last year. “I tired quickly and realized that my cognitive skills have been affected,” he wrote in his withdrawal letter.

But within months, Pitts was a candidate for a magistrate seat in Laurens County, a mostly rural area in the upper portion of the state, about an hour from the Blue Ridge Mountains. A quarter of the area’s residents are black. “I have applied for jobs in several different locations in private industry and other places,” he told the Greenwood Index-Journal. “I’m not ready to retire and I’m either too old, too experienced or too hot a potato.”

This time, with the backing of his Republican colleague, state Sen. Danny Verdin, he faced far less scrutiny. “The bottom line is, this is a job I’m well qualified for,” Pitts told the Index-Journal, citing his law enforcement background.

Unlike any other state in the country, South Carolina allows state senators to hand-pick magistrate judges. Because they are considered local appointments, senators almost never question selections outside their delegation. The governor signs off on the appointments, but largely defers to the legislative chamber.

The process for selecting magistrates varies from county to county.

In the Charleston metro area, for example, the eight-member senate delegation convenes public meetings to review and discuss the qualifications of potential candidates. Greenville, with seven senators, operates much the same way.

But in a dozen of the state’s 46 counties, including Laurens, the selection of magistrates lies in the hands of a single senator.

That meant Pitts only required Verdin’s backing.

The Post and Courier asked the lawmaker about Pitts’ Facebook posts, but Verdin declined to review them.

“That’s not necessary,” he said. “I will have no comment.”

GOP Senator Nails Trump Judicial Nominee On Women’s Equality

Reprinted with permission from AlterNet.


When Justice Brett Kavanaugh was confirmed to the U.S. Supreme Court after a contentious battle in the U.S. Senate, President Donald Trump needed a replacement to take over Kavanuagh’s seat on the D.C. Circuit Court of Appeals—and he nominated attorney/law professor Neomi Rao. Trump’s nominee was questioned by Sen. Joni Ernst during a Senate Judiciary Committee hearing on February 5, and the Iowa Republican asserted that she was troubled by Rao’s previous statements on sexual assault.

Ernst (a survivor of sexual assault and domestic violence) told the 45-year-old Rao, “I’m not going to mince words…. I’ve had a chance to review a number of your writings while you were in college, and they do give me pause—not just from my own personal experiences, but regarding a message that we are sending young women everywhere. And I’ve said, time and time again, that we need to change the culture around sexual violence—from our college campus to the U.S. Olympic Committee to our military and beyond.”

Ernst asked Rao, “Who is at fault in a rape?”—to which Rao responded, “The rapist. The man who commits the rape is, of course, at fault.”

Ernst then brought up Rao’s past assertions on author Camille Paglia’s writings on date rape, noting that Rao wrote that Paglia “accurately describes the dangerous feminist idealism which teaches women they are equal.” The senator asked Rao, “Is that a dangerous feminist ideal—that women are created equal?”

Rao responded, “Senator, I very much regret that statement. And I’ve always believed strongly in the equality of women and men and for equal rights and opportunities for women. I’m honestly not sure why I wrote that in college.”

Although Ernst (who was first elected to the Senate in 2014) was fairly aggressive when questioning Trump’s nominee, the Iowa Republican has been criticized by feminists more than once for her hard-right views and severe social conservatism. Ernst favors outlawing abortion, opposes same-sex marriage, and has introduced bills to defund Planned Parenthood.

Ernst has also drawn criticism from women’s groups for voting to repeal the Affordable Care Act of 2010, a.k.a. Obamacare, which has brought health insurance to millions of low-income women who didn’t have it before. And in 2018, Ernst voted for Kavanaugh’s confirmation to the Supreme Court despite Palo Alto University psychology professor Christine Blasey Ford’s testimony that he attempted to rape her at a party when she was 15 back in 1982.

Ernst is up for reelection in 2020 and is considered to be one of the more vulnerable GOP senators in a swing state. Although Trump won Iowa in 2016, President Barack Obama carried the state in 2008 and 2012.

Watch below:


New Congress, New Round In Senate Fight Over Obama’s Judges

By David Hawkings, CQ-Roll Call (TNS)

WASHINGTON — In the long-running judicial wars between the Senate and the White House, the first skirmish of the year is flaring into the open this week.

How it plays out will offer insight about whether the new Republican majority plans to continue making the federal bench a venue for venting displeasure with President Barack Obama, or whether he’ll be allowed to refashion the courts a bit more during his final two years in office.

The locus of the new fight is L. Felipe Restrepo, chosen by the president six months ago for the U.S. Court of Appeals for the Third Circuit. He’s the only person Obama has picked for eight current vacancies on the regional appeals courts. The seat has been open for 18 months, and as a result, the caseload recently became so backlogged that the Administrative Office of the U.S. Courts declared a “judicial emergency” for appeals out of Pennsylvania, New Jersey, and Delaware.

But the Senate Judiciary Committee is convening its third hearing of the year Wednesday afternoon to hear from judicial nominees, and Restrepo is not invited. His supporters say efforts to spur his progress behind the scenes have been frustrated at every turn.

“This is just slow-walking a totally qualified nominee,” said Kyle C. Barry of the Alliance for Justice, which advocates for a more liberal judiciary. “There’s no substantive reason, and it’s unconscionable.”

Progressive advocacy groups and some Senate Democrats suspect Restrepo is being held hostage by the GOP as the latest act of retribution for Obama’s executive action on immigration last fall, which sought to grant an indefinite reprieve from deportation to millions of people in the country illegally.

The initial Republican approach — withholding funding from the Department of Homeland Security unless the president reversed course — ended up as a high-profile collapse this winter, and the Senate GOP’s fallback effort to deny Loretta Lynch’s confirmation as attorney general after she said she would support Obama’s policy has come to naught this spring. Now, some on the right are suggesting the best possible Plan C is preventing new judges on the appeals courts.

“There is little risk of the public outrage that might accompany a DHS shutdown or even a fight over a Cabinet nominee,” Curt Levey of the conservative Committee for Justice legal think tank wrote in the Wall Street Journal in March.

“Nonetheless, denying Mr. Obama the power to shape these all-important circuit courts would give Republicans nearly as much leverage as a broader approach,” he continued. “If Republican senators stick together, this is a no-lose strategy. Either the president relents by rescinding or substantially modifying his immigration orders, or Republicans halt his leftward transformation of the circuit courts and keep judicial vacancies open for a possible GOP president in 2017.”

The staff for Judiciary Chairman Charles E. Grassley said the Iowa Republican is not embracing this approach. Instead, they say the committee is still reviewing the latest background check — something of a curiosity, given that only two years ago the FBI conducted a thorough review of the 56-year-old Restrepo’s life before he was confirmed (on a voice vote) for his current job as a federal trial court judge in Philadelphia.

“You can see by the numbers that there is no strategy,” spokeswoman Beth Levine said, offering statistics suggesting the GOP timetable on judges at this point in Obama’s presidency is comparable to the Democrats’ pace during President George W. Bush’s seventh year in office.

Adding to the mystery behind the Restrepo delay is the fact that one of the judge’s most important public supporters, Republican Patrick J. Toomey, has not returned the endorsement form (known as a “blue slip”) that the committee requires from each home-state senator before a judicial confirmation process begins. He and Pennsylvania’s other senator, Democrat Bob Casey, jointly recommended Restrepo for the lower court, and last fall Toomey declared “he will also make a superb addition to the Third Circuit.”

Toomey’s office declined to discuss the missing blue slip, but spokeswoman E.R. Anderson said Toomey still supports confirmation “and hopes it gets done this year.”

The senator is at a politically difficult moment in his career. A favorite of free-market and social conservatives, he will stand for a second term in a presidential year in a state that’s voted Democratic for president in six straight elections. So far, at least, Toomey has done little to shift his agenda or his voting record toward the middle ahead of 2016.

Professing his support in public for a prominent home-state figure — while withholding his formal endorsement behind the scenes for a time as a gesture of solidarity with fellow conservatives — would count as only the slightest feint to the middle.

A native of Colombia who came to the United States as a toddler and became a citizen in 1993, Restrepo would be the second Latino ever on the Third Circuit. But he would be the first judge on that court who’s been a public defender, having done that work in state and federal court for six years after law school.

He then spent 13 years in private practice, focused on civil rights and criminal defense, before becoming a federal magistrate in 2006, where he ran a program that assisted federal convicts newly released from prison to finish high school, clear up bad credit and find employment.

Restrepo might still end up as a symbol of the immigrant success story and a reminder that the poor oftentimes benefit from good court-appointed lawyers. Or he could become the latest high-profile victim of partisan brinkmanship in the shaping of the judicial branch. This early in the year, it’s still too early to predict.

Photo: Jeffrey Beall via Flickr

Obama’s Best Chance To Influence The Judiciary May Be Passing

By Timothy M. Phelps, Tribune Washington Bureau

WASHINGTON — When 41-year-old gay rights lawyer Michelle Friedland was confirmed by the Senate in April to the federal bench in San Francisco, Democrats cheered that a liberal woman would become the youngest federal appeals court judge in the nation.

But when a restrictive Wisconsin voter-identification requirement was allowed to go into effect in September after the U.S. 7th Circuit Court of Appeals in Chicago deadlocked 5 to 5, Democrats winced. The law — later blocked by the Supreme Court — would presumably have been invalidated at the appellate court if President Barack Obama had succeeded in filling a vacancy there now nearly 5 years old.

With Republicans striving to seize control of the Senate in Tuesday’s election, Obama’s first six years in office may mark the peak of his influence on the judiciary, including the appointment of two Supreme Court justices, Sonia Sotomayor and Elena Kagan.

Legal experts say it’s a record of unprecedented achievements in judicial diversity. Women make up 42 percent of his confirmed nominees, more than double the average of his five predecessors combined, while African-Americans make up 18 percent and Latinos 6 percent. Eleven openly gay judges now serve where there was only one.

“It’s been quite an impressive record,” said Sheldon Goldman, a professor at the University of Massachusetts at Amherst who studies judicial nominations. “A large majority of his appointments — approximately 60 percent — have gone to nontraditional candidates, people who are not white males.”

Supporters are heartened that his most recent appointments, such as Friedland and Pamela Harris — confirmed to the appeals court in Richmond, Va. — have had more progressive views and records compared with his early choices.

And they are gratified that Democrats now hold a majority on nine of the 13 appeals courts, including the crucial District of Columbia Circuit Court of Appeals. Democrats had the majority on only three appeals courts when Obama came to office.

But there is also a lingering disappointment that it took the Obama administration several years to prioritize judicial nominations, making it harder to catch up with vacancies.

Despite a flurry of nominations over the last year — which came after Senate rules were changed to make confirmations easier — there are still 63 judicial vacancies, 10 more than when Obama took office. He nominated fewer than half as many judges in his first year as President George W. Bush did.

“It was a slow start, but once they got rolling and put some muscle behind the nominees, they started to get some people through,” said Caroline Fredrickson, president of the American Constitution Society, a liberal legal group. “Originally the priority was on getting the Affordable Care Act through and the nominations process took a back seat.”

Some suggested that the goal of diversity complicated the process early on.

“There is no question that diversity has been a high priority for the administration and that’s reflected in the diversity score card, but it also accounts for a lot of the slowness in the nominations, especially in the early years,” said Ed Whelan, a conservative legal analyst. Whelan said the difficulty in coming up with the right balance of minority candidates made for slow going on nominations.

A White House official who would not be identified speaking about personnel matters said that in its first two years the administration was occupied by the selection and confirmation of Sotomayor and Kagan.

Some liberals think Obama’s unwillingness to spend political capital on confirming judges in his early years led to the appointment of more moderates, particularly when compared with Bush’s record. Karl Rove, Bush’s deputy chief of staff, made the selection of judicial conservatives a priority from the start of Bush’s presidency.

Until Kathryn Ruemmler became White House counsel in 2011, no top official in the Obama White House made judges a priority, liberals complain.

But Obama also faced implacable opposition from Republicans, who frequently used filibusters to block even his uncontroversial nominees. Adding to the difficulties was Senate Judiciary Committee Chairman Patrick J. Leahy’s strict interpretation of arcane committee traditions, which effectively granted veto power over nominations to home-state senators.

Last November, Senate Democrats eliminated the filibuster rule for most judicial nominees, allowing them to approve dozens of nominations by a simple majority vote and freeing Obama to look for more liberal nominees.

But because Leahy, a fellow Democrat, allowed any home-state senator to block a nominee from committee consideration, the logjam was broken only in the 19 states with two Democratic senators. Often Obama has declined to nominate judges in states with Republican senators, leaving seven crucial appeals court seats, including the one on the 7th Circuit in Chicago, without a nominee.

“It is the responsibility on the part of the president to at least get a nominee in front of the Senate,” said former Sen. Richard G. Lugar, R-Ind., a critic of delays by both parties in filling judicial vacancies. “It seems to me the White House has an obligation to put greater pressure on the senators to move nominations forward.”

Democrats will attempt to push 25 more Obama nominees through the lame-duck Senate session that will start Nov. 12, but 27 more judges have announced they are leaving. That means total vacancies at the start of the year are likely to rise again slightly — to 65.

AFP Photo/Saul Loeb

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