Carrie Severino

GOP Senator Disputes 'People Ought To Decide' Message On Supreme Court Blockade

About an hour after the death of Justice Antonin Scalia was confirmed in February, Senate Majority Leader Mitch McConnell shaped the tone of his party’s refusal to consider any person President Obama would nominate for the open seat on the court.

“The American people should have a voice in the selection of their next Supreme Court Justice,” McConnell said in a statement. “Therefore, this vacancy should not be filled until we have a new president.”

The message that not allowing a popularly elected president to fulfill his official duties by nominating a Supreme Court justice was somehow letting the American people “have a voice” in the process became the rallying cry of Senate Republicans and the advocacy groups supporting them.

Occasionally, however, conservatives would slip from such messaging and revealthereal reason Republicans are trying to block any consideration of a Supreme Court nominee: partisan politics.

Sen. Jeff Flake of Arizona, who supports the party’s blockade but has never quite got on board with the party’s messaging, said soon after Obama nominated Judge Merrick Garland — who in any other time would be a decidedly consensus choice — that the Senate should confirm Garland in the lame duck session if a Democrat wins the presidency in November, thus averting the risk of having the next president pick a justice who is less appealing to Republicans.

Flake made a similar argument in an interview on Meet the Press on Sunday, saying that at least for him the “principle” in question was never “that the people ought to decide before the next election” but that “the principle is to have the most conservative, qualified jurist that we can have on the Supreme Court.”

“If we come to a point, I’ve said all along, where we’re going to lose the election or we lose the election in November,” he said, “then we ought to approve [Garland] quickly because I’m certain that he’ll be more conservative than a Hillary Clinton nomination come January.”

Of course, as Flake honestly points out, the point of the Senate GOP’s blockade of Garland’s nomination has never been a high-and-mighty matter of principle, but has instead been a high-stakes gamble that a Republican will win the White House and be able to fill Scalia’s seat on the court. (Something that has become even more of a gamble now that Donald Trump is the presumptive Republican nominee for president.)

Even the Judicial Crisis Network, the primary outside group working to support the GOP’s Supreme Court blockade, has quietly moved away from its original message that Republicans were stalling proceedings because “the American people should decide” who the next Supreme Court justice should be.

JCN’s chief spokesperson, Carrie Severino, told the Washington Post yesterday that her group still opposes a last-ditch confirmation of Garland. She didn’t mention her group’s previous “people should decide” message, instead framing it as a strategic political choice, predicting that if Hillary Clinton were to become president, she would simply renominate Garland because she would not realistically be able to get confirmation of a nominee who is “more loud and proud and out there.”

"If the idea is that Hillary Clinton would pick a new nominee, I question whether that’s something whether even her fellow Democrats want to see," she said. "I’m already seeing Democrats in red states who are nervous about Garland; they're not going to be calmer if a new nominee is chosen who pushes more demographic buttons, or is more loud and proud and out there."

Severino, whom Democrats are growing more familiar with as her group bombs their states with TV ads, insisted that the party would regret it if it responded to a Clinton victory by rejecting the overtures about Garland and pushing for a new "dream" nominee.

"Unless they win 60 votes in the Senate, they'd be hard-pressed to get an Eric Holder confirmed," she said. "I don’t think, at the end of day, they can confirm someone better from their perspective. And his tone and calm temperament means he’d be better as a swing vote."

Tea Party Group Draws Crowd Of Tens To Protest Supreme Court Confirmation

Today, as thousands of people gathered in front of the Supreme Court to voice their support of President Obama’s executive actions on immigration, a somewhat smaller crowd organized by Tea Party Patriots held forth against the DAPA/DACA actions and urged the Senate not to confirm President Obama’s Supreme Court nominee Merrick Garland.

We counted about 20 people at the Tea Party Patriots event at 11 am, shortly before the event’s speeches were scheduled to begin: 

The heavily outnumbered protesters carried signs saying “#NoHearingsNoVotes,” “#TheDecisionIsOurs,” “#LetThePeopleDecide” and “Let The People Have A Voice On The Future Of The Court,” the message that anti-Garland groups have settled on to make their quest to block hearings on a Supreme Court nomination sound like a populist rallying cry. The sign on a podium labeled Garland “Obama’s Rubber Stamp.”

There was a high ratio of Republican and conservative movement speakers to grassroots activists, asRep. Louie Gohmert, R-Texas,Rep. Ken Buck, R-Colo.,Rep. Steve King, R-Iowa, and the Judicial Crisis Network’s Carrie Severino addressed the small crowd.

Here’s another view of the Tea Party Patriots event:

 

UPDATE: Politico reports:

News concerences sponsored by the Tea Party and FreedomWorks also featured Reps. Ted Yoho (R-Fla.) and Louie Gohmert (R-Texas), as well as other speakers who unsuccessfully tried to lead the crowd in the Pledge of Allegiance and "America the Beautiful." An effort to lead a singalong of the national anthem backfired when the singer forgot the lyrics midway through, drawing jeers.

 

Courting Extremism: Donald Trump's Supreme Court And Chuck Grassley's Revisionist History

Courting Extremism is a weekly feature on conservative responses to the Supreme Court vacancy.

Donald Trump, currently the frontrunner in the Republican presidential primary, believes that Barack Obama is an illegitimate president who isn’t a natural born citizen. So it’s only natural that Senate Republicans, having apparently decided that Obama’s second term in office only lasted for three years, seem intent on letting a future President Trump pick the next Supreme Court justice.

Not only would delaying a Supreme Court confirmation until the next president takes office leave the court short one justice for about a year, it could let Trump set the direction of the court for decades to come.

Conservative activists have pressured Republican leaders into taking an extreme stance that is opposed by a majority of voters, a stance so ridiculous that it even requires some Republicans to ignore their past statements on the judiciary.

Here are the five worst pro-obstruction arguments, blatant changes of heart and accidental admissions of truth that conservatives have made about the Supreme Court this week:

5) ‘Let’s Do Our Jobs’

Iowa Sen. Chuck Grassley, the chairman of the Judiciary Committee, has been feeling the heat over his support for the GOP’s Supreme Court blockade. In fact, his staff even went so far as to keep details of his public meetings with constituents a secret in order to avoid protests over the matter.

Perhaps Grassley would rather not talk to his constituents about why he thinks the Senate shouldn’t even hold a hearing on Judge Merrick Garland’s nomination because back in 2005 he was making exactly the opposite argument, telling his colleagues in a Senate floor speech about judicial nominees: “Let’s do our jobs.”

4) The Judicial C̶o̶n̶f̶i̶r̶m̶a̶t̶i̶o̶n̶ Crisis Network

It’s hard not to roll your eyes when the Judicial Crisis Network demands that Senate Republicans ratchet up their unprecedented obstruction of Garland and other judicial nominees when one remembers that prior to President Obama’s swearing-in, the group was called the Judicial Confirmation Network. Indeed, JCN was created for the sole purpose of encouraging the Senate to confirm President Bush’s nominees, especially his most extreme and controversial ones.

Now JCN is targeting Garland, a man JCN’s own leader implied in 2010 would make a suitable replacement for Justice John Paul Stevens.

“But of those the president could nominate, we could do a lot worse than Merrick Garland,” JCN chief counsel and policy director Carrie Severino said at the time. “He’s the best scenario we could hope for to bring the tension and the politics in the city down a notch for the summer.”

Not only is Severino trying to reverse herself on Garland, but she is even trying to alter the history of her own group.

In a March interview, Pennsylvania radio host Bobby Gunther Walsh spoke with Severino about the JCN and hailed her organization for its work confirming judicial nominees during the Bush administration.

When Walsh incorrectly claimed that the group was called the Judicial Crisis Network at the time — suggesting that it was formed to fight Senate Democrats who were supposedly bent on creating a “crisis” in the courts — Severino chose to let Walsh’s false claim stand and went on to attack Democrats for trying to “repeat false facts over and over again.”

3) NRA’s Lawyer Problem

The NRA has been one of the most vocal opponents of Garland’s nomination, and has even pushed outright falsehoods in hopes of blocking his nomination. The group has insisted that Garland ruled against gun activists in the landmark Heller case and supported a national gun registry. Both claims are completely false, but that hasn’t stopped conservatives like Bill O’Reilly and Larry Pratt from running with the bogus talking points.

But at least one NRA leader didn’t get the memo.

Timothy Johnson of Media Matters points out that one of the organization’s top lawyers lavished praise on Garland, although he toed the Senate GOP’s line that no nominee for the high court should be considered until after a new president takes office.

The NRA's dishonest and fiery rhetoric on Garland is at odds with the views of one of the organization's top constitutional litigators, conservative lawyer Charles J. Cooper.

Cooper, "a longtime stalwart of the Federalist Society" who often represents the NRA and other conservative interests in his private appellate litigation practice, praised Garland in a March 28 interview, saying his respect for Garland has only grown since he supported Garland's nomination to the D.C. Circuit in 1997.

In a 1997 letter to the Senate Judiciary Committee, Cooper noted that his legal philosophy differed from Garland's, but also wrote, "Not only is Merrick enormously gifted intellectually, but he is thoughtful as well, for he respects other points of view and fairly and honestly assesses the merits of all sides of an issue," and that should he be confirmed, "He would comport himself on the bench with dignity and fairness."

Asked about the letter by The Washington Post, Cooper said his "high opinion of Judge Garland has not changed -- indeed, it has only strengthened -- over the course of the 19 years since I wrote these words." (Cooper, however, does support Senate Republicans in obstructing Garland's nomination for political reasons.)

Among the cases Cooper was involved in? The Heller case, the very one that the NRA is citing in its false attacks against Garland.

2) Looming Dictatorship

Rafael Cruz, the father of Texas Sen. Ted Cruz and one of his top campaign surrogates, raised the issue of gun rights in an interview on Monday, warning that with “one more liberal justice” will lead Americans to “lose our Second Amendment right to keep and bear arms.”

Not only would Americans be stripped of their gun rights if a “liberal justice” were to be appointed to the court, Cruz warned, but America could transform into an authoritarian state: “[T]hink back in history: Every dictator that has taken the guns away from the population has used them against the population.”

1) The Trump Court

While Donald Trump may have struggled with knowing exactly what the Supreme Court does or what the right to privacy has to do with abortion rights, he has been clear that he has wanted to outlaw abortion ever since a friend who had contemplated terminating a pregnancy ended up raising a “super star” kid.

On Wednesday, Trump went on to take three different positions on abortion rights in three hours, and it remains unclear exactly what he believes.

But what Trump has made clear is that he plans to appoint to the Supreme Court only ultraconservative jurists in the mold of Antonin Scalia, ones who would likely support overturning Roe v. Wade and uphold state efforts to curtail abortion rights. He even said he would pick a justice from list of potential nominees issued by the Heritage Foundation, an anti-choice group led by Jim DeMint, who was “one of the most die-hard anti-choice lawmakers” during his time in the Senate. (The organization has since released a list of their conservative dream justices).

While Trump has reversed his position on whether women who have abortions should be punished, a Supreme Court shaped by Trump could make such a prospect a reality.

The Judicial Crisis Network Conveniently Forgets Its Own History

It has been truly remarkable watching the Judicial Crisis Network criss-crossing the country pressuring Republican senators to keep up their blockade of President Obama’s Supreme Court nomination, since during the George W. Bush administration the group was named the Judicial Confirmation Network and promoted the idea that every judicial nominee “deserves an up-or-down vote.”

JCN’s current leaders have been carefully ignoring this history in their effort to prevent the Senate Judiciary Committee from even holding a hearing on the nomination of Judge Merrick Garland, a situation that reached new heights of absurdity last week when the group’s general counsel, Carrie Severino, let a conservative radio host speculate at length, incorrectly, about why the group might have been named the “Judicial Crisis Network” during the Bush administration.

“Here’s what’s interesting, is you were interestingly named the Judicial Crisis Network” during the Bush administration, radio host Bobby Gunther Walsh mistakenly said during a March 24 interview with Severino.

“It’s interesting you chose that name,” he said, “I don’t know if there was a crisis going on back then, is that when they were threatening Bush about ‘you can’t nominate someone’?”

After repeating misleading claims about Sen. Charles Schumer and then-Sen. Joe Biden’s comments about Supreme Court nominations during the Bush years, Walsh fumed, “You know what I can’t stand is when people can’t even admit that they said stuff and they can’t even admit the truth.”

Severino, rather than correcting Walsh about her organization’s past as the Judicial Confirmation Network, instead complained about people who “repeat the same false facts” until “people take them as true”: “Yeah, you’re entitled to your own opinion but not to your own facts. If you repeat the same false facts over and over again, sometimes people take them as true, so it’s frustrating.”

“It’s the irony that you can just see the Democrats are willing to say and do whatever it takes to get this fifth vote that they just desperately want a solid liberal block on the court,” she added. “And they’re going to want to deny the people a voice in the process in order to do that. That’s a real shame.”

As we all know, the Judicial Crisis Network would never “repeat false facts”!

Courting Extremism: Gun Activist Warns Garland While Other Conservatives Reach For New Bogus Attacks

Courting Extremism is a weekly feature on conservative responses to the Supreme Court vacancy.

Unable to come up with any honest attacks against Judge Merrick Garland’s record, conservatives continue to try to find new ways to justify the Republican leadership’s refusal to even hold hearings on Garland’s nomination to the Supreme Court. At least one activist, Gun Owners of America’s Larry Pratt, even suggested that the Second Amendment was designed in part to stop people like Garland.

Here are the five most ridiculous conservative pro-obstruction arguments of the week:

5) The NRA Rule

Mitch McConnell continues to move the goalposts on his party’s Supreme Court blockade. First, the Republican leader flatly declared that the Senate would not consider any nominee to fill the vacancy on the Supreme Court until a new president is in office.

Then, in an interview on Sunday with Fox News, McConnell added a new caveat, declaring that as long as Republicans hold a majority, the Senate would not confirm Garland because he is facing opposition from conservative groups like the National Federation of Independent Business and the National Rifle Association.

McConnell’s comments are particularly revealing, as he and other Republicans have insisted that their Supreme Court blockade isn’t about politics but is about a (nonexistent) Senate tradition to refuse to hold confirmation votes for Supreme Court nominees during election years.

If McConnell was taking this stance truly out of principle rather than partisanship, there would be no need to cite pressure from the NFIB and NRA. His statement also seems to imply that Republicans may obstruct any nominee if a Democrat succeeds Obama, seeing that the two right-wing groups are unlikely to support anyone nominated by a Democratic president.

4) Perpetual Obstructionism

Eagle Forum founder Phyllis Schlafly appears to be on the side of those who think that only a Republican president should be allowed to replace the late Justice Antonin Scalia.

She told Armed America Radio this week that Senate Republicans need to clearly state that “we don’t want any new nominee on the court until we have a Republican who will appoint somebody of the nature of Scalia.”

“The Court can continue to function indefinitely with fewer than nine Justices, as it has many times in our history,” Schlafly wrote in an op-ed. She then suggested that if a Republican becomes president, a Republican Senate could use the opportunity to pack the court with more than nine justices:

If Republicans elect the next president and retain control of Congress, there will be plenty of time to add new Justices to the Supreme Court. One scholar proposed expanding the size of the Court to 11 or more Justices, since a larger Court reduces the likelihood that any single appointee would fundamentally change the Court’s direction.

In addition to controlling the size of the Supreme Court, Congress could also authorize the President to nominate new Justices on a regular timetable — say, one during each two-year term of Congress. Under that system, a new Justice would join the Supreme Court every two years, regardless of whether an existing Justice dies or retires during that period.

3) If At First You Don’t Succeed…

Anti-choice activists are desperately trying to find reasons to oppose Garland’s nomination.

First, abortion rights opponents expressed outrage that Garland attended a book party celebrating the release of journalist Linda Greenhouse’s biography of Justice Harry Blackmun, the author of the Roe v. Wade decision.

Now the outlet has LifeSiteNews run an article alleging that Garland “ruled against Priests for Life in a case involving the HHS mandate.”

Garland, however, wasn’t one of the three judges on the D.C. Circuit to hear Priests for Life’s challenge to the contraception mandate. LifeSiteNews was angry that Garland voted against rehearing the case — the three judge panel ruled unanimously against Priests for Life — before the full court of appeals, or an en banc review.

As Paul wrote, such a vote does not constitute a ruling against the group, despite LifeSiteNews’ claim:

A vote for or against en banc review, absent an accompanying opinion, does not necessarily tell you anything about why the judge voted that way. In fact, several of the judges wrote or joined lengthy opinions explaining why they were for or against an en banc review. Chief Judge Garland joined none of them. Neither did George W. Bush nominee Thomas Griffith or Clinton nominee David Tatel, both of whom voted along with Chief Judge Garland not to rehear the case. The majority of the court voted against en banc review, so we don’t know how Garland would have voted on the merits of the case.

The challenge to the contraception mandate was inevitably headed to the Supreme Court as several other circuit courts heard similar challenges. Indeed, the high court heard arguments on the Zubik case earlier this week.

2) He’s An Extremist!

After President Obama took office, the Judicial Confirmation Network changed its name to the Judicial Crisis Network and changed its mission from encouraging the speedy confirmation of judicial nominees to advocating for obstructionism and no-votes.

Unsurprisingly, the group, like some of its allies in the conservative movement, is also changing its tune on Garland.

Just six years ago, JCN spokesperson Carrie Severino hinted that her group wouldn’t put up much of a fight if Obama nominated Garland to the Supreme Court. “[O]f those the president could nominate, we could do a lot worse than Merrick Garland,” Severino told the Washington Post at the time. “He’s the best scenario we could hope for to bring the tension and the politics in the city down a notch for the summer.”

Fast forward six years, and all of a sudden JCN is attacking Garland as a left-wing extremist in this new web ad:

1) ‘The Second Amendment Is All About People Like Judge Garland’

Conservative groups have repeatedly claimed that Garland opposed a challenge to a Washington, D.C., handgun ban and supported a national gun registry.

“He voted against Dick Heller,” Gun Owners of America head Larry Pratt said on “Trunews” this week. “He voted against the idea that any citizen of the District of Columbia has an individual right to keep and bear arms.” “He also voted to uphold Bill Clinton’s registration scheme,” he added, claiming that the judge’s track record demonstrates “opposition to the Second Amendment.”

However, Garland did not rule on the merits of the Heller case and he never came anywhere close to approving a national gun registry, as Pratt alleged.

“This is the guy that has been told to us by many folks, including the president, that ‘this is a moderate,’” Pratt said. “Well, I guess in the Kremlin there are moderates but that’s not the kind of moderate we need on the Supreme Court.”

Then, Pratt issued a veiled warning to Garland similar to those he has given Democratic officials whom he considers anti-Second Amendment. When the program’s host, Rick Wiles, asked if Garland would shift “the balance of power” on the court against the Second Amendment, Pratt responded: “Judicially, it’s in a heap of trouble. Happily, the Second Amendment is all about people like Judge Garland so there is a limit to how far he can go, I think.”

JCN Laughably Changes Course In Attempt To Paint Merrick Garland As A 'Liberal Extremist'

Back in 2010, as President Obama was considering possible nominees to replace retiring Justice John Paul Stevens on the Supreme Court, Judicial Crisis Network attorney Carrie Severino mused, “Of those the president could nominate, we could do a lot worse than Merrick Garland," adding that a Garland nomination could bring down “the tension and the politics” surrounding the brewing Supreme Court battle.

It must have been somewhat awkward for Severino, then, when President Obama did nominate Garland for the Supreme Court this year and she had to pivot to claiming that Garland is actually a liberal extremist who should never be confirmed by the Senate.

Of course, the objection that groups like JCN have to Garland’s nomination has nothing to do with the nominee. Instead, conservative groups, led by JCN, were pressuring Senate Republicans to block any Obama nominee to the Supreme Court even before Garland was named.

So it’s been amusing to watch JCN as it grasps for arguments to oppose Garland, the most recent being a web ad that the group is promoting in the home states of vulnerable Republican senators that derides Democrats for calling Garland a “moderate.” Instead, JCN told USA Today, Garland is a “liberal extremist.” The ad claims that under a Supreme Court with the “liberal extremist” Garland as a member, the Second Amendment would be “gutted” and “partial-birth abortion legalized” and Garland would become the “tie-breaking vote for Obama’s big government liberalism.”

We’ve already debunked JCN and its allies’ weak attempts at portraying Garland as “hostile” to gun rights. This is just reinforced by the fact that the only news source JCN could find to cite in its ad about Garland’s supposedly “strong hostility to gun owner rights” is the NRA’s magazine.

The “partial-birth” abortion claim is even more of a puzzle since, as far as we know, Garland has never ruled on the issue. That claim seems to be based entirely on the fact that Garland was nominated by President Obama.

Some conservative groups are not even bothering to claim that Garland is an unacceptable nominee and are instead focusing on bogus procedural arguments against considering his nomination. But JCN, Severino says, has a duty to be “out there combating the spin” about the nominee. That argument would be so much more convincing if the “spin” didn’t so closely resemble what she herself said just six years ago.

Of course, what can you expect from an organization that was founded as the Judicial Confirmation Network under President George W. Bush, only to completely change its name and core mission once President Obama took office.

Courting Extremism: The Week The GOP Admitted Its Supreme Court Blockade Is Based On A Lie

Courting Extremism is a weekly feature on conservative responses to the Supreme Court vacancy.

We are introducing a new series here on Right Wing Watch as the GOP’s obstructionism reaches a new low, with many Republican leaders now claiming that whomever President Obama nominates to the Supreme Court should receive absolutely no consideration from senators, despite their duties as outlined in the Constitution.

In response to the Supreme Court blockade, we will be putting together a weekly update on the Right’s response to the current Supreme Court vacancy.

5) Federalist Society Fine With A Perpetual Vacancy

Originally, Republicans insisted that they were simply upholding a recently-discovered tradition where the Senate refuses to consider Supreme Court nominees in election years.

However, since this tradition doesn’t actually exist, conservatives have become more honest about what’s really going on: they just don’t like the fact that Obama is president.

At the recent Conservative Political Action Conference (CPAC), Dean Reuter of the Federalist Society, a major right-wing legal group, commended the Senate GOP leadership for refusing to consider whomever Obama nominates to fill the vacancy. When asked if Republicans should continue to block hearings if the next president is a Democrat, Reuter said he is fine leaving the seat open indefinitely:

There’s no time limit in the Constitution. And there’s nothing magical about there being nine justices. The country started out with six justices, we’ve had as many as ten at some point in time. And as recently as 2010, when Justice Elena Kagan came on the Court, she had been solicitor general so she recused herself in over a third of the cases…I don’t see a sense of urgency.

Unless, of course, a Republican is elected president.

4) Ron Johnson Gives Away The Game

Apparently, the fictitious no-appointments-in-an-election-year tradition only applies to Democratic presidents, at least according to Sen. Ron Johnson.

The Wisconsin Republican said in a radio interview yesterday that “it’d be a different situation” if a GOP president was appointing a justice to the bench, saying that the Senate Republicans would show “more accommodation” to a Republican president.

Johnson might be interested in hearing from his voters: A recent poll found that 62 percent of Wisconsinites say the open Supreme Court seat should be filled this year, and 76 percent “think the Senate should at least see who gets put forward before making a decision on whether they should be confirmed.”

3) ‘We Are Setting A Precedent Here Today’

At least one Republican senator is honest enough to admit that the Republicans don’t have Senate history on their side.

Sen. Lindsey Graham told a Judiciary Committee meeting that the GOP is about to create a new precedent by refusing to even consider a nominee from President Obama, as the Huffington Post reports:

One of the Republican Party's most candid senators, Lindsey Graham (S.C.), admitted Thursday a stark fact that the rest of his colleagues have tried their best to avoid: that their blockade of any Supreme Court nominee by President Barack Obama is unprecedented.

And he insisted that he was going to go along with it, even though he predicted it would worsen relations between the parties and the functioning of the Senate.

"We are setting a precedent here today, Republicans are, that in the last year at least of a lame duck eight-year term -- I would say it’s going to be a four-year term -- that you’re not going to fill a vacancy of the Supreme Court based on what we’re doing here today," Graham said in an unusual session of the Judiciary Committee, where members debated not bills or judicial nominees, but Obama's right to carry out his constitutional powers in an election year.

"We're headed to changing the rules, probably in a permanent fashion," he said.

Nonetheless, Graham said that “he still supports Grassley's decision not to hold hearings for Obama's nominee.”

2) ‘It’s A Political Argument’

While Senate Republicans insist that they aren’t inserting partisanship into the Supreme Court fight and are simply following tradition, Rep. Steve King, R-Iowa, a member of the House Judiciary Committee, said at CPAC that the fight is all about winning “a political clash.”

In video provided by Democracy Partners and Americans United for Change, King said that he supports the actions of Judiciary Committee Chairman Chuck Grassley “as long as he’s blocking an Obama appointment.”

1) Who Cares About The Sixth Amendment?

It seems that the GOP is not only ignoring the Constitution’s “advice and consent” requirement but also the heart of the Sixth Amendment.

In a taste of things to come, Carrie Severino of the Judicial Crisis Network took to the National Review to attack a possible Supreme Court nominee, Judge Jane Kelly, for having once worked as a defense attorney.

That’s right, Severino seemed to suggest that it is disqualifying that Kelly worked as a defense attorney because her past clients include people accused of vicious crimes.

Of course, everyone accused of a crime isn’t necessarily guilty, and according to the Sixth Amendment, “the accused shall enjoy the right to a speedy and public trial” and “to have the Assistance of Counsel for his defence.”

Severino’s outrageous article is also an opportunity to point out that her group, the Judicial Crisis Network, was originally named the Judicial Confirmation Network when it was founded during the Bush administration for the purpose of advocating for the smooth confirmation of judges.

Do Conservatives Even Believe In The Bill Of Rights?

The Judicial Crisis Network (JCN) has somehow managed to stoop even lower in its dishonest and deceitful campaign to block the Senate from even considering whomever President Obama nominates to fill the vacancy on the Supreme Court.

Carrie Severino of JCN, which was founded as the Judicial Confirmation Network but rebranded as a group opposed to judicial confirmations coincidentally after Obama took office, took to National Review last week to attack Jane Kelly, a U.S. circuit court judge whom Obama is reportedly considering nominating to the high court, for once defending a child predator while working as a public defender.

As Zachary Pleat of Media Matters pointed out, Severino not only twisted Kelly’s actions in the case, but attacked Kelly simply for doing her job as a defense attorney.

Severino, a former clerk for Justice Clarence Thomas, must know that even people accused of heinous crimes have a right to an attorney who would vigorously defend their client. It would completely undermine the judicial process to say that the accused should have no legal representation or should have a lawyer who will simply throw the case rather than fulfill their obligation to defend them.

After all, the right to a fair trial lies at the heart of the Sixth Amendment, and JCN actively promoted the confirmation of Chief Justice John Roberts, who once worked on the defense of convicted murderer John Ferguson.

This attack, Pleat writes, “echoes past right-wing media attacks on Democratic presidential front-runner Hillary Clinton and former Department of Justice civil rights division nominee Debo Adegbile.”

Several conservative pundits accused Clinton of leading a “war on women” after she was asked by a judge, in 1975, to defend a sexual assault suspect while she was working in legal aid, while Senate Republicans successfully blocked Adegbile’s nomination to head the Justice Department’s Civil Rights Division because they were upset he once worked on a legal team representing Mumia Abu-Jamal, who was convicted of killed a police officer, on an appeals case regarding whether sentencing instructions given to a jury were constitutional. As Miranda said:

It was an ugly episode, in which politicians like [Ted] Cruz essentially declared that not all criminal defendants deserve the Constitution’s guarantee of legal counsel. And it’s telling that Cruz, the self-proclaimed lover of the Constitution, brought it up in his latest ugly screed.

Clinton and Adegbile aren’t the only people targeted by Republicans simply for acting as defense attorneys.

In 2014, the Republican Governors Association (RGA) ran attack ads against South Carolina state Sen. Vincent Sheheen, a Democratic candidate for governor, for his work as a criminal defense attorney, using the tagline: “Vincent Sheheen: he represents criminals, not us.”

South Carolina Bar Association President Alice Paylor said the RGA ad campaign amounted to an attack on “the whole basis for the U.S. and the U.S. Constitution. According to them, I guess everyone accused of something is automatically guilty.”

The American Bar Association sent a letter to Gov. Chris Christie, a former prosecutor who chaired the RGA at the time, noting, “Lawyers have an ethical obligation to uphold that principle and provide zealous representation to people who otherwise would stand alone against the power and resources of the government – even to those accused or convicted of terrible crimes.”

The rule of law that governs our society delivers justice specifically because everyone has a right to competent representation. This right is especially important for those who arouse our fear and anger, to ensure that the process by which they are judged is fair and just. This process is what distinguishes us from our darker history, when mobs decided guilt or innocence and punished those they deemed guilty.

And in 2010, a group formed by Bill Kristol and Liz Cheney, the daughter of former vice president Dick Cheney, launched attack ads “against the Obama Justice Department for hiring lawyers who, at one time or another, did legal work on behalf of terror suspects.” The group branded the lawyers the "Al Qaeda 7," questioned their loyalty to the country and demanded that the Justice Department release their names.

We can only imagine how Republicans would have gone after John Adams for representing soldiers charged with murder during the Boston Massacre.

The Judicial Crisis Network's Incredibly Dishonest Pro-Obstruction Ad

The messaging that conservatives seem to have settled on regarding the Supreme Court vacancy left by the death of Justice Antonin Scalia is that somehow Americans won’t have a say in who the next justice is unless the confirmation of any nominee is stalled until after the next president takes office. (No matter that the current president was, in fact, elected by the American people for this very job.)

The first TV ad out of the gates in the Supreme Court battle comes from the Judicial Crisis Network, which uses this messaging in an effort to pressure Senate Judiciary Committee Chairman Chuck Grassley to stand strong on denying a hearing to any Obama nominee for the seat.

The screen shows softly lit stock footage of diverse Americans as a voiceover says:

It’s ‘We the People.’ Sometimes the politicians forget that. The Supreme Court has a vacancy and your vote in November is your only voice. Sen. Chuck Grassley agrees: the American people should decide. This isn’t about Republicans or Democrats. It’s about your voice. You choose the next president, the next president chooses the next justice. Call Sen. Chuck Grassley. Thank him for letting the people decide.

This is what Vice President Biden might call “a bunch of malarkey.”

At the same time as her group was preparing this ad about the supposed high American ideals of not letting the president fulfill his constitutional obligation to appoint Supreme Court justices, the Judicial Crisis Network’s top attorney, Carrie Severino, was telling a conservative news network something very different, saying that failure to block an Obama nominee would be “political malpractice” on the part of Republicans.

In a statement shortly after Scalia’s passing, Severino made it clear that this stand was specifically about conservatives’ animosity toward Obama, whom, she said, is “the last person” who should be appointing the justice’s successor.

And, of course, we always have to note that during the George W. Bush administration the Judicial Crisis Network was called the Judicial Confirmation Network and that its stated mission was to ensure that “the confirmation process for all judicial nominees is fair and that every nominee sent to the full Senate receives an up or down vote." As far as we know, the Judicial Confirmation Network didn’t oppose any of the 28 federal judges who were confirmed during Bush’s final year in office.

But it definitely “isn’t about Republicans and Democrats”!

Five Bogus Right-Wing Excuses For Obstructing Obama's SCOTUS Nominee

It didn’t take long for Republicans to admit that their purportedly principled vow to block anyone President Obama nominates to the Supreme Court to replace the late Justice Antonin Scalia is all about politics.

Just minutes after the news broke of Scalia’s death, many Republican politicians and conservative activists said that the Senate should refuse to hold any hearings or votes on whomever Obama nominates to replace him because it is an election year.

Donald Trump and Ben Carson have both admitted that if they or another Republican were in the White House, they would have no problem with filling the vacancy. Different rules, it seems, apply to President Obama.

This admission undermines the GOP’s entire argument that they are simply abiding by a nonpartisan tradition of refusing judicial confirmations in election years, an assertion also contradicted by past statements from Senate Republicans such as Judiciary Committee Chairman Chuck Grassley, who said in 2008 that “the reality is that the Senate has never stopped confirming judicial nominees during the last few months of a president’s term.”

Before the president has even hinted at his choice to replace Scalia on the court, Republicans have been busy concocting bogus “traditions” and other excuses for obstruction — all in an effort to hide the partisan motivations behind keeping Scalia’s seat open.

5) It’s A Tradition!

Several conservatives have been pushing the easily debunked claim that the Senate never confirms a nominee to the Supreme Court during an election year.

Marco Rubio said on Meet the Press that “it’s not just for the Supreme Court, even for appellate courts, both parties have followed this precedent. There comes a point in the last year of the president, especially in their second term, where you stop nominating, or you stop the advice and consent process.”

Rubio’s claim was demonstrably false, but he wasn’t alone in making it.

During Saturday’s GOP presidential debate, moderator John Dickerson called out Ted Cruz for saying that “we have 80 years of precedent for not confirming a Supreme Court justice in an election year,” noting that Justice Anthony Kennedy was in fact confirmed in 1988, Ronald Reagan’s final year in office. Cruz responded that “Kennedy was confirmed in ’87,” which is simply untrue. (The audience booed Dickerson for saying he “wanted to get the facts straight for the audience.”)

Cruz’s father, Rafael, took it one step further, telling Pat Robertson that “if the Democrats want to appoint somebody, let them win the election,” seeming to forget that President Obama was elected for a full term in 2012 and that the drafters of the Constitution didn’t want Supreme Court appointments put up to a popular vote.

4) Chuck Schumer Said…

Conservative activists have seized on remarks that Sen. Chuck Schumer made in 2007, which they claim prove that the New York Democrat favored blocking any Supreme Court justice nominated by George W. Bush in case of a vacancy in his last year in office.

However, this line of attack conveniently ignores a key part of Schumer’s speech, where he said that Democrats would only oppose a far-right judicial nominee, explaining that “they must prove by actions not words that they are in the mainstream rather than we have to prove that they are not.”

Josh Marshall of TPM notes that conservatives are misreporting the content of Schumer’s speech:

Schumer quite explicitly never said that the Bush shouldn’t get any more nominations. He also didn’t say that any nominee should be rejected. He said they should insist on proof based on judicial history, rather than just promises that they were mainstream conservatives rather than conservative activists, which both have proven to be. But again, set all this aside. He clearly spoke of holding hearings and being willing to confirm Bush nominees if they met reasonable criteria.

3) What About Robert Bork?

In defense of their stance that Republicans should refuse to consider any Obama Supreme Court nominee, some conservatives have cited the 1987 fight over Robert Bork’s nomination to the Supreme Court, which they offer as proof that Democrats have done the same thing in the past.

This is an odd case to bring up, seeing that Bork did in fact receive a fair hearing and a vote on the Senate floor, two things many Republicans today say should not be given to a future Obama pick.

Bork was voted down by a bipartisan majority of senators due to his extremist views, particularly his hostility to civil rights laws, which is a completely different matter than flatly refusing to hold committee hearings or a vote on a nominee.

2) Obama Is Packing The Court!

Carrie Severino of the Judicial Crisis Network, a conservative group that, ironically, was previously named the Judicial Confirmation Network, told the Washington Post on Monday that “if the president tries to pack the court, as it is apparent he may, then JCN will be leading the charge to delay a Senate vote until the American people decide the next president.”

“Obama doesn’t give a crap about the Constitution…he sees an opportunity to pack the court,” conservative radio host Mark Levin said. “Obama wants to pack the court. That’s what he wants to do on the way out the door and he must be prevented.”

Simply fulfilling his constitutional duties to fill a vacancy in the court following a jurist’s death is not an attempt to “pack” the court. Court packing is when an official tries to expand the current size of the court or create new courts in order to appoint new judges without waiting for vacancies.

1) Obama Has A ‘Conflict Of Interest’

Sen. Rand Paul, who styles himself as a constitutional scholar, said he is uncomfortable with President Obama appointing anyone to the bench because the Supreme Court is considering cases involving Obama’s executive orders on issues like immigration and environmental regulation.

Therefore, Paul concludes, Obama “has a conflict of interest here in appointing somebody” to the court.

The Kentucky Republican’s logic that a president shouldn’t be allowed to make judicial nominations because they may have to rule on actions of the executive branch is absurd on its face. The Constitution provides the president the power to do just that and, if Paul’s logic were to be applied, no president would be able to make any nominations at any time in office.

According to this argument, senators would similarly have a “conflict of interest” in voting to confirm Supreme Court justices since a future justice would likely decide on the constitutionality of laws passed by Congress.

Paul’s bizarre assertion that presidents shouldn’t be allowed to appoint justices due to a possible “conflict of interest” merely speaks to how desperate the GOP has become in trying to come up with dubious arguments that will make their proposed blockade seem like a principled stance, rather than what it really is: a brazenly partisan endeavor that will allow them to shirk their constitutional responsibilities.

Conservative Groups Circle The Wagons On SCOTUS Obstruction

When the news broke of Justice Antonin Scalia’s death on Saturday, Republicans in the Senate almost immediately vowed to block the nomination of any person President Obama puts forward to fill the empty Supreme Court seat.

Conservative groups quickly followed suit, putting forward various rationales for keeping a Supreme Court seat open for more than a year in the hopes that a Republican is elected president in November.

Some of these activists made variations on the false claim that the Senate never confirms judicial nominees during election years. Others warned of dire consequences for America if the president is allowed a Supreme Court pick. One activist going so far as to claim that Scalia’s seat should be kept vacant in perpetuity until a Republican is elected president.

Conservative legal activist Ed Whelan said it would be “grossly irresponsible” to let Obama pick the next justice:

Senate Republicans would be grossly irresponsible to allow President Obama, in the last months of his presidency, to cement a liberal majority that will wreak havoc on the Constitution. Let the people decide in November who will select the next justice.

Whelan also told “Breitbart News Daily” that “we are at risk of really losing the Supreme Court and losing the Constitution.”

The American Center for Law and Justice ’s Jay Sekulow said that President Obama was perfectly free to nominate a conservative to replace Scalia:

Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Chuck Grassley are both committed to letting the American people decide at the ballot box this November, letting our 45th President appoint Justice Scalia’s replacement. While President Obama remains free to appoint a conservative committed to upholding the Constitution as his replacement, he has given us no reason to believe he would.

So the American people should get to decide.

This is a prime opportunity for all branches of government to show that we still have a “government of the people, by the people, for the people.”

Carrie Severino of the Judicial Crisis Network (formerly the Judicial Confirmation Network), said President Obama is the “last person” who should be nominating the next Supreme Court justice:

… This president, who has shown such contempt for the Constitution and the laws, is the last person who should be appointing his successor. The American people on both sides of the aisle are disgusted with the status quo in Washington and another nomination by this President would just bring about more of the same. The people’s voice should be heard in November to determine who will appoint the next Supreme Court Justice.”

Mat Staver, head of the conservative legal group Liberty Counsel (which represented Kentucky clerk Kim Davis and is now representing an anti-Planned Parenthood activist) declared that the “future of the Supreme Court and America” depends on the Senate blocking any Obama nominee:

“With the passing of Justice Scalia, the future of the High Court and the future of America is hanging in the balance. The Senate must not confirm any nominee to the Supreme Court from President Obama. The Senate must hold off any confirmation until the next President is seated. Unfortunately the presidential debates have been more theater and less substance about the real issues surrounding the Supreme Court. The election of the next President has now taken on even greater importance. The future of the Supreme Court and America now depends on the Senate blocking any nominee by President Obama and the people electing the right person to occupy the White House,” said Staver.

The Family Research Council’s Tony Perkins echoed the call to hold Scalia's seat open:

"The Supreme Court has now become the centerpiece in this presidential election. There has not been an election-year nomination in generations and the Senate must not break that trend now. With the election only 269 days away, the people should decide what president should fill this seat," concluded Perkins.

As did the American Family Association’s Buddy Smith:

We cannot allow President Obama to replace him with a judicial activist. Activist judges have mangled the Constitution almost beyond recognition, and we cannot allow Justice Scalia to be replaced by a justice who will continue to shred the Constitution rather than protect it and uphold it.

While the Constitution gives the president the right to nominate Supreme Court justices, it also gives the Senate the right to reject them. The Constitution does not even require an unacceptable nominee be given a vote on the floor.

Americans United for Life’s Charmaine Yoest said, “His loss is tragic, and we hope that when it comes time for the Senate to vote on his replacement, that a worthy successor who can pick up his banner can be found after the election.”

Alan Sears, head of Alliance Defending Freedom, hedged his bets, saying that “it is unlikely that a new justice will be installed prior to the election of our next president.

Janet Porter of Faith 2 Action declared, “The best way to honor Justice Scalia’s legacy is to make sure there is no Obama nominee confirmed by the U.S. Senate.”

Troy Newman, head of the anti-abortion group Operation Rescue and a member of Sen. Ted Cruz’s presidential campaign, warned that if Obama were to nominate the next justice, America would become a “totalitarian government”:

"With the passing of the esteemed Justice Scalia, America stands at a crossroads. Will she choose the path of fascism or freedom? We are just one Obama appointee away from a totalitarian government. Two years ago, the GOP promised the American people that, if elected, they would thwart Obama's radical leftist agenda. This is the GOP's moment. Will it shine as a light for liberty in this dark moment or will that light be extinguished by political appeasement?" asked Operation Rescue President Troy Newman.

John Zmirak, editor of James Robison’s website The Stream, went even further, saying that if the next president is a Democrat, a Republican Senate should still refuse to confirm any of their judicial nominees:

But they should go further. As long as Republicans control the Senate, there is no excuse for any pro-choice, anti-gun rights, anti-marriage justices to be confirmed to our highest court. If, God forbid, Bernie Sanders or Hillary Clinton is elected, they should face a Republican Senate — or even a GOP minority — that will obstruct their every judicial appointment, even if it means leaving key seats on national benches empty, for years at a time. As justices retire or die, the court will simply grow smaller. Big deal. America will muddle through. This is the kind of implacable determination that defeated the solidly conservative Justice Bork and got us the muddled Anthony Kennedy — and Casey v. Planned Parenthood and Obergefell. It is time for that worm to turn.

Conservatives must drop the facade of high-minded bipartisanship, which only ever cuts to the left. The courts have staggering power to change our lives, and damage our country. They can kill our nation’s unborn babies, seize our guns and punish our churches. If GOP senators aren’t willing to fight long, hard and relentlessly to stop that from happening, we should find other senators who can, back them in the next primary election, and cripple the re-election of squishy moderate turncoats. A presidential candidate who appreciates all this will get my vote. And I think he’ll earn yours.

Conservative Legal Activist Admits GOP SCOTUS Obstruction Is All About Politics

Within hours of the news breaking of Justice Antonin Scalia’s death on Saturday, Republican politicians and conservative activists circled the wagons and vowed to block the confirmation of any person President Obama nominates to replace him.

Some have tried to come up with bogus new “rules” about not confirming justices in a presidential election year. Some have tried to claim, as Sen. Marco Rubio did in Saturday’s Republican presidential debate, that more than 10 months before the next election Obama is already a “lame duck” president. Sen. Rand Paul went as far as to say that Obama has a “conflict of interest” in nominating judges who might consider the legality of things the executive branch does.

But some have been less coy about the purely political calculation behind the attempt to block an Obama nominee, including the Judicial Crisis Network’s Carrie Severino, who announced in a Newsmax interview yesterday that it would be “political malpractice” for Senate Republicans to allow President Obama to put another justice on the Supreme Court.

In a statement shortly after Scalia’s death was announced, Severino declared that Obama is “the last person” who should be nominating Scalia’s successor because he has “shown such contempt for the Constitution and the laws.”

Severino’s group was founded during the George W. Bush administration as the Judicial Confirmation Network, with the stated mission of ensuring “that the confirmation process for all judicial nominees is fair and that every nominee sent to the full Senate receives an up or down vote.” After President Obama was elected, the group conveniently changed its name and its mission.

Right Quietly Pours Money Into Montana, Hoping To 'Flip' Pivotal State Supreme Court

Conservative legal advocates from throughout the country have been quietly pouring money into a Montana state supreme court race, hoping to topple a court majority that has bucked the U.S. Supreme Court on campaign finance issues and could soon have a voice in cases with national implications involving abortion rights and LGBT equality.

The Right’s chosen candidate is Lawrence VanDyke, a former state solicitor general with a perfect pedigree for pro-corporate and Religious Right donors. Not only has VanDyke indicated his support for the U.S. Supreme Court’s dismantling of campaign finance laws and lamented that the current Montana high court is insufficiently “pro-business,” but, in his position as solicitor general, steered the state government toward taking positions against abortion rights, marriage equality and gun restrictions in other states.

What's more, in his writings as a law student, VanDyke was unguarded in his social conservative views, fretting about same-sex marriage, endorsing discredited “ex-gay” therapy and defending the teaching of anti-scientific “Intelligent Design” in public schools.

The Right Sees An Opportunity In Montana

At last month’s Values Voter Summit in Washington, the Family Research Council’s political action committee hosted a private $100-a-head reception featuring conservative luminaries including Rick Santorum, Louisiana Gov. Bobby Jindal, GOP congressmen Steve King, Vicky Hartzler and Mark Meadows, and congressional candidate Dave Brat of Virginia, who unseated former House Majority Leader Eric Cantor in an upset primary election this year.

A flyer for the event announced that along with those national Republican politicians, FRC would be “showcasing a very important State Supreme Court candidate, Lawrence VanDyke of Montana, who we hope can flip the court in that state.”

VanDyke’s presence on the fundraiser’s roster was telling. As FRC’s flyer made clear, a VanDyke victory would change the ideological balance on a court that has been a thorn in the side of opponents of campaign finance reform and could soon be facing nationally watched cases on abortion rights and marriage equality.

VanDyke has not yet submitted a campaign finance report showing how much money, if any, FRC was able to bundle for him at the fundraiser, and his campaign did not respond to our inquiry about whether he was personally present at the Values Voter event. But a review of VanDyke’s campaign finance reports shows that his candidacy has attracted keen interest from out-of-state donors, including some of the country’s leading conservative legal activists.

[UPDATE: VanDyke's Oct. 20 fundraising report revealed some of the contributions from FRC and its allies.]

Since filing for the race to unseat sitting Supreme Court Justice Mike Wheat in March, VanDyke has raised about $78,000, more than one-third of which — roughly $29,000 — has come from 114 individual out-of-state donors. By contrast, Wheat has raised just under $85,000 for his reelection bid, only $1,100 of which came from just five out-of-state donors.

Among those who have contributed to VanDyke’s campaign are recognizable names in conservative legal circles. Kelly Shackelford, president of the right-wing legal group Liberty Institute (a major sponsor of the Values Voter Summit) contributed $100, while another top Liberty Institute official, Hiram Sasser, gave $320, the maximum gift allowable as of VanDyke's last fundraising report. Carrie Severino, chief counsel of the Judicial Crisis Network and a Harvard Law School classmate of VanDyke’s, and her husband Roger also each maxed out with $320 contributions. Thomas Spence, an official at the conservative Regnery publishing house also sent the maximum contribution to VanDyke’s campaign. Two employees of the Arizona-based Alliance Defending Freedom have together contributed $370. Christopher Murray, a lawyer who served on Mitt Romney’s presidential campaign, also contributed $320.

Nearly $7,000 of VanDyke’s contributions have come from employees of the law firm Gibson Dunn, where Vandyke worked before entering public service. That includes $320 each from Theodore Olson, the conservative attorney argued the Citizens United case (but who has become better known as a marriage equality advocate), and controversial Bush appeals court nominee Miguel Estrada. VanDyke’s campaign also received $320 each from Eugene Scalia — the son of Supreme Court Justice Antonin Scalia and a Wall Street reform-buster in his own right — and his wife.

Montana’s Cowgirl Blog notes that prominent Montana social conservatives Greg and Susan Gianforte — who fund creationist efforts and support anti-gay policies — have also each contributed the maximum amount to VanDyke’s campaign. He has also received the maximum contribution from the Montana Gas & Oil PAC and — in the form of an in-kind gift of catering — from the PAC’s treasurer, Dave Galt.

Cowgirl Blog also notes that VanDyke got a major assist last month from a newly created group called Montanans for a Fair Judiciary, which sent a statewide mailer in favor of his candidacy. The group, which was registered last month, is staffed by a former Montana GOP official and a corporate lobbyist for oil and gas clients, among others.

And just last week, a Washington, D.C.-based group called the Republican State Leadership Committee Judicial Fairness Montana PAC — an offshoot a national group funded by big business interests including the Reynolds tobacco company and Koch Industries — bought $110,000 worth of television ads supporting VanDyke and slamming Wheat as soft on crime. The group has also been mailing out leaflets accusing Wheat of siding with “environmental extremists.”

All of this attention from national activists and corporate backers has caught the attention of a group of six retired Montana Supreme Court justices, who signed a letter last week calling VanDyke an “unqualified corporate lawyer,” adding, "Given [his] background, Mr. VanDyke is an excellent corporate pick although that is obviously not good news for Montanans.”

MTN News reported:

The letter from the judges notes that VanDyke has received the maximum allowable campaign contributions from numerous out-of-state lawyers who represent major corporations, including more than 20 at the Gibson firm - including at least one who represented Citizens United.

"Corporations are buying judicial races because they want judges who will not hold them accountable," the draft letter from the retired justices says. "If the disinformation they are spreading successfully manipulates Montanans into electing an unqualified corporate lawyer, we will lose our fair and impartial court."

‘Changing The Face of the Montana Supreme Court’

While VanDyke’s personal connections seem to behind quite a bit of his financial support from out-of-state conservative leaders, his featured spot at the Values Voter Summit hints that the conservative legal movement and the Religious Right see an opportunity in his candidacy.

Montana conservatives have made no secret of their desire to pack the state Supreme Court with justices in their ideological mold. Last year, the Great Falls Tribune published leaked emails between conservative Republicans in the state senate discussing a “long term strategy” for displacing more moderate Republicans in the state legislature and “changing the face of the Montana Supreme Court.”

One lawmaker wrote of the need to “purge” the party of moderates, after which “a new phoenix will rise from the ashes.”

In 2012, Montana conservatives were able to elect the likeminded Laurie McKinnon to the state Supreme Court thanks in part to a dark money group called the “Montana Growth Network” run by a Republican state senator that spent at least $42,000 on her campaign — more than the candidate spent herself. The “Montanans for a Fair Judiciary” group that has been campaigning for VanDyke is linked to the firm that was employed by the “Montana Growth Network” to boost McKinnon.

National conservative groups have good reason to take an interest in the race as well.

Montana’s Supreme Court gained national attention in 2011 when it bucked the U.S. Supreme Court on the issue of campaign finance regulation, ruling that the Supreme Court’s 2010 decision in Citizens United did not invalidate Montana’s century-old ban on corporate spending in elections. The 5-2 decision, in which Justice Wheat joined the majority, openly defied the Supreme Court’s controversial ruling. One of the two dissenting justices wrote that the state court must follow the high court’s precedent but used the opportunity to excoriate the Supreme Court for its Citizens United logic. On appeal, the Supreme Court summarily reversed Montana’s opinion, ending the state’s corporate spending ban.

Montana’s Supreme Court may soon also be in the center of the legal debates on same-sex marriage and abortion rights. State anti-choice groups have indicated that they might challenge Montana’s abortion clinic buffer-zone bill in the wake of the Supreme Court’s striking down of a similar bill in Massachusetts. In addition, marriage equality cases are working their way through both state and federal courts in Montana.

A Movement Candidate

Although Montana’s judicial elections are ostensibly nonpartisan, VanDyke’s resume makes him seemingly a perfect candidate for conservative activists hoping to drag the state's high court to the right. At Harvard Law School, VanDyke was active in the conservative Federalist Society and wrote an article for the school’s law review favorably reviewing a book arguing for allowing public schools to teach anti-scientific Intelligent Design.

In an article for another school publication, VanDyke lamented that courts in Canada had been “forcing same-sex marriage on the populace” and warned of a “trend of intolerance towards religion as homosexual ‘rights’ become legally entrenched.” In the same article, he cited a study supporting debunked “ex-gay” therapy to support the “view that homosexuals can leave the homosexual lifestyle.” (The author of that study has since recanted.)

After graduating from law school, VanDyke clerked for D.C. Circuit Judge Janice Rogers Brown, perhaps the most stridently conservative of that court’s activist pro-corporate wing, known for her extreme opposition to government regulation and her writing of a prequel to the Supreme Court’s Hobby Lobby decision. After a stint at Gibson Dunn, VanDyke became an assistant solicitor general in Texas and was named solicitor general of Montana early last year.

In public statements, VanDyke has indicated that he would have sided with the U.S. Supreme Court on Citizens United, defending the decision in a debate last month. And although his race is officially nonpartisan, VanDyke has made it very clear which side of the aisle he falls on, accusing his opponent of judging “like a liberal Democrat” and being “results-oriented” in his rulings — a loaded accusation favored by conservative activists.

VanDyke has also hinted that he would be more favorable to business interests on the court, touting an endorsement from the Montana Chamber of Commerce and saying, “I don’t think anybody who follows our court thinks it’s a pro-business court.” On his website, he backs efforts to “produce and preserve” natural resources, which he contrasts with his opponent's siding with preservationists in a dispute over drilling gas wells. In September, he spoke at a “Coal Appreciation Day” sponsored by a coal industry group.

VanDyke’s website also touts his support for the death penalty and an expansive interpretation of the Second Amendment, noting his work as state solicitor general defending a bill that would have invalidated federal firearms regulations on weapons manufactured and kept in Montana. (The law was ultimately struck down in federal court). In that position, VanDyke also pushed for Montana signing on to Alabama briefs in favor of overturning semiautomatic weapon bans in New York and Connecticut. At the time, he bantered over email with Alabama’s solicitor general, Andrew Brasher, about shooting elk with semi-automatic firearms, attaching a picture of himself hunting with “the same gun used by the Navy Seals.”

Ultimately, Montana signed on to both briefs, and VanDyke evidently made a useful connection as well: This year, Brasher contributed the maximum amount to his Supreme Court campaign.

VanDyke recently announced that he had been endorsed by the National Rifle Association.

In his role as solicitor general, VanDyke also worked on efforts to oppose same-sex marriage and abortion rights, including signing on to amicus briefs filed in other states.

VanDyke, meanwhile, is running on the message that he will follow “the law, not politics” and accusing Justice Wheat of being overly partisan. In the same interview in which he lamented that the current state supreme court was unfavorable to business interests, he said, “I have not promised anybody that I’m going to be a pro-business judge or that I’m going to be a conservative judge...I’m going to be a fair and balanced judge.”

Judicial Elections Draw More And More Big Money

Last year, Justice at Stake reported on the fast increase of spending in judicial elections, leading to judicial races seeming “alarmingly indistinguishable from ordinary political campaigns” and blurring “the boundaries that keep money and political pressure from interfering with the rule of law.”

Part of this increase was attributable to the 2010 Citizens United decision, which allowed outside groups to spend unlimited amounts supporting and opposing candidates. In the case of judicial elections, those candidates could be the ones deciding on the future of that very campaign spending.

It’s no wonder that the corporate right and the Religious Right have joined forces to back VanDyke’s candidacy. A little-noticed nonpartisan race in Montana could prove to be an effective long-term investment for a movement that’s trying to solidify a pro-corporate grip on the courts and win back lost legal ground abortion rights and LGBT equality.

This post has been updated to clarify the status of marriage equality cases in Montana.

Right Wing Gets It: Elections Matter Because Courts Matter

For right-wing advocates, big conservative wins in the Supreme Court’s recently completed term have only confirmed the importance of electing a president in 2016 who will give them more justices in the mold of Samuel Alito and John Roberts.  The Roberts and Alito nominations, and the conservative majority created by their confirmations, represent the triumph of a decades-long push by right-wing funders, big business, conservative political strategists, and legal groups to take ideological dominion of all levels of the federal judiciary.

Right-wing groups have long made attacks on the federal judiciary a staple of their rhetoric. Many claim America’s decline began with Supreme Court rulings against required prayer and Bible readings in public schools in the 1960s. Roe v. Wade, and more recently, judicial rulings in favor of marriage equality, have been characterized as “judicial tyranny” and “judicial activism.” Of course right-wing legal groups have been pushing hard for their own form of judicial activism, and have pushed Republican presidents to nominate judges they can count on. 

As Jeffrey Toobin notes in a recent profile of presidential hopeful Sen. Ted Cruz in the New Yorker,

Conservatives like Cruz never stopped denouncing liberals for their efforts to use the courts to promote their ideological agenda, even as they began to do much the same thing themselves. The heart of Cruz’s legal career was a sustained and often successful undertaking to use the courts for conservative ends, like promoting the death penalty, lowering the barriers between church and state, and undermining international institutions and agreements.

Right-wing activists are proud of what they have accomplished, as Richard Land, long-time leader of the Southern Baptist Ethics and Religious Liberty Commission, told National Journal’s Tiffany Stanley.  As Brian Tashman reports in RWW, Land “waxed nostalgic for the days when President Bush was in office…and especially for Bush’s commitment to nominating ultra-conservative federal judges.”

 “Alito and Roberts are the gifts that keep on giving, and we would have gotten neither one of those without our involvement,” Land said, predicting that Roe v. Wade will soon be “thrown onto the ash heap of history.”

…The Supreme Court’s ruling this year in the Hobby Lobby case shows the Religious Right’s strong focus on the judiciary is paying off.  And Tony Perkins of the Family Research Council told Stanley that conservatives will continue to use the courts as part of their strategy to keep “the barbarians at bay.”

But in spite of their wins, and their success in creating the most pro-corporate Court since the New Deal, right-wing activists are nervous that some of their big wins, like Hobby Lobby and Citizens United, were 5-4 decisions. They want to pad their majority and continue their march to remake America via the courts.

The Senate

Since federal judges have to be confirmed by the Senate, right-wing groups are also using the Supreme Court in 2014 Senate campaigns. An anti-choice PAC, Women Speak Out, followed the Hobby Lobby ruling almost immediately with attacks on Mark Pryor and other Democrats for not having supported the confirmation of Samuel Alito.

On the day of the Court’s decisions in Hobby Lobby and Harris v. Quinn, North Carolina House Speaker Thom Tillis, a Republican, who is challenging U.S. Sen. Kay Hagan, a Democrat, tweeted “Today’s SCOTUS rulings were a win for our 1st Amendment freedoms, a loss for Hagan, Obama, & DC bureaucrats.”

Cleta Mitchell, a lawyer who represents right-wing groups, told the Washington Post, “These Supreme Court decisions, it’s a reminder to people on our side of the aisle of the importance of the court, and then the importance of recapturing the Senate.”

Religious Liberty ‘Hanging by a Thread’

Right-wing pundits and organizations are already ramping up their rhetoric on judges as a 2016 presidential campaign issue, with many touting the 5-4 decision in Hobby Lobby as evidence that religious liberty is “hanging by a thread.”

Rush Limbaugh went on a tirade against Hillary Clinton after she criticized the Hobby Lobby ruling:

Can I tell you the truth about the Hobby Lobby ruling?  We're in such dangerous territory in terms of losing our freedom that we cheer when five out of nine people uphold the Constitution.  We're not advancing anything, folks.  We are barely hanging on here.  …  And here comes Hillary Clinton thinking this decision is a step toward the kind of anti-women policy seen in extremist undemocratic nations is outrageous. 

The woman is either a blithering idiot or a total in-the-tank statist, maybe a combination of the two.  But this is not a step toward anything.  This is a temporary halt in the onslaught toward totalitarianism.

We're just barely hanging on.  We cheer! We conservatives stand up and cheer when we manage to get five people to see it the right way.  "Oh, my God! Oh, Lord! Thank you so much, Lord. You saved another day."  Five people out of nine, five said the Constitution means what it says.  The troubling thing to me is the four people that didn't!  Liberty and freedom are hanging by a thread here! 

That theme was echoed by the Archdiocese of Washington’s Msgr. Charles Pope:

“OK, We won. But the Hobby Lobby vote should have been 9-0. Wake up, America. Your liberty is on the line!”

It is simply outrageous that four Supreme Court Justices, and many Americans, cannot see the clear and offensive proposition of the Government in this regard…..We won today, but barely. It should have been 9–0. Wake up, America; your religious and other liberties are hanging by the thread of one vote.

Former presidential candidate Gary Bauer of American Values weighed in in similar fashion:

“While we celebrate this victory, the fact remains that four justices on the Supreme Court, including the two appointed by Obama, evidently share his narrow view of America's first freedom and were willing to trample the religious liberty of millions of Americans in order to advance their radical pro-abortion agenda.

This narrow decision, with four liberal justices eager to go the wrong way, is a stark reminder to every man and woman of faith that their religious liberty is hanging by a thread.

The Court as Right-Wing Campaign Issue for 2016

Right-wing pundits and presidential candidates frequently use the federal judiciary as an issue to excite base voters. Back in 2012, one of the most effective things Mitt Romney did to shore up his weak support among conservative activists was to name a judicial advisory team headed by Robert Bork. That year, Terence Jeffrey, who worked on Pat Buchanan’s presidential campaigns and has written for right-wing publications, wrote:

Three of the nine justices on a U.S. Supreme Court that has decided many significant issues by 5-4 votes over the past decade will turn 80 years of age before the 2016 presidential election.

The three justices are Antonin Scalia, an anchor of the court’s conservative wing, Ruth Bader Ginsburg, an anchor of the court’s liberal wing, and Anthony Kennedy, who is often the decisive swing vote in 5-4 opinions….

Bobby Jindal is among the crop of potential 2016 presidential candidates who is making an issue of the courts.  In an interview with a conservative Christian blogger during last month’s Iowa state Republican convention, Jindal suggested if Republicans take control of the Senate this year they would block additional nominees. Asked about federal judges overturning state marriage bans for same-sex couples, Jindal said, ““This shows you the importance of the November elections.  We don’t need this President putting more liberal judges on the bench.”

It is important, whether you are a lawyer or not, to understand what it means for the courts to actually apply the Constitution as opposed for them just to create new laws or to read things and just decide they are going to contradict what the other two branches of government did.  We’ve gotten away from these three separate but equal branches of government and instead we’ve got these activist judges who are overreaching. We have to recognize the problem for what it is,” Jindal added.

He emphasized the importance of elections and their impact on judicial confirmations because sometimes Constitutional amendments will correct the problem, and other times federal judges will just overrule them.

Mike Huckabee has seemingly made attacks on the judiciary a centerpiece of his campaign. In May, he called for the impeachment of an Arkansas judge who ruled in favor of marriage equality. Last year, urging Senate Republicans to block an Obama appeals court nominee, he said, “Judges can linger on for decades after a President leaves office, and a bad one can wreak havoc that echoes down the ages.”

Meanwhile, presidential contender Rick Santorum and the right-wing Judicial Crisis Network are attacking Chris Christie for not sufficiently making right-wing ideology a litmus test for his state judicial appointments.  Santorum told Yahoo News earlier this month, “To see a record as abysmal as Gov. Christie’s record in the state of New Jersey, I guarantee you that will be a red flag for most voters in the state of Iowa, but also most voters in the Republican primary.” (Earlier this month, while in Iowa campaigning for Gov. Terry Branstad, Christie said he supports the Court’s Hobby Lobby decision; he had initially declined to say whether he supported the decision.)  

The Judicial Crisis Network has also slammed Christie, saying his failure to “deliver on judicial activism” may have doomed his 2016 presidential hopes. It has created an entire website devoted to trashing Christie’s judicial record to conservative voters:  www.christiebadonjudges.com. In June, Fox News ran an op ed by JCN’s Carrie Severino using Christie’s alleged failure to appoint right-wing ideologues to the state supreme court as a way to discredit him with conservative activists.

Christie didn’t deliver on judicial activism. Has he doomed his 2016 bid?

If a candidate’s tenure as governor is his road-test for the presidency, Governor Chris Christie just flunked.

As a candidate for governor, Christie talked the talk on judges, vowing to "remake" the New Jersey Supreme Court and to transform the most activist court in the nation into one that operates under the rule of law. 

Despite having the opportunity to appoint four of seven justices on the court since taking office, Christie has repeatedly nominated individuals with no discernible judicial philosophy….

And while elected representatives must stand for re-election every few years, federal judges sit for life. 

Today’s nominee could still be playing the same tricks in 2050 or beyond.  That is why the issue of judges matters so much during presidential primaries and caucuses….

Right-wing advocates have been talking for a while about how important it is to their judicial plans not just to elect a Republican, but to elect a Republican committed to making the kind of Supreme Court nominations they want. In February, right-wing activist Mychal Massie complained that many justices nominated by Republican presidents over the past few decades did not turn out to be ideological warriors (though that is hardly the case with more recent nominees).

But forward-thinking conservatives are keenly aware that we must be concerned about the future as well, and not just because of Obama. Based on age alone, one of the primary areas of concern is that the person elected president in 2016 will potentially have at least four Supreme Court Justices to replace. Two of the potential four are liberals, so a Democrat president would simply be replacing liberals with liberals, ergo, it would be a wash. But of the other two the one is a solid Constructionist, and the other is a swing vote who has, in recent years, ruled based on Constructionism enough times that we should be concerned if a Democrat president replaces him….

As you can see, the potential for the political complexion of the High Court to be changed for decades to come should be of critical concern if a Democrat wins the presidency in 2016. But, it is myopic betise on an epic level to even for an instant believe we need not be concerned if a Republican wins. Especially if it is an establishment Republican….

With Karl Rove and Reince Priebus pulling the strings of the GOP and RNC, the Republican Party resembles a RINO theme park more than it does the Party true conservatives have supported.

With them controlling things from behind the curtain it is not just critical that the next president be “conservative” but he/she must be a legitimate conservative whose conservative bonafides are unimpeachable. It does conservatism no good to elect a Mitt Romney, John McCain, or Jeb Bush type. The 2016 election will place in office a person with the potential to change the face of SCOTUS for many decades to come. And as John Boehner, Eric Cantor, Mitch McConnell, et al. have showed us — it’s not just Democrats who are betraying us.

Religious Right leaders will certainly be keeping the issue of judicial nominations at the forefront of the 2016 campaigns. This week, George O. Wood, who heads the Assemblies of God denomination, wrote:

Moreover, we should encourage voting because elections have consequences. One of those consequences is that the president nominates judges who serve on district and appellate courts and on the Supreme Court. The U.S. Senate must then approve those nominees. It is a sad fact that no evangelical sits on the Supreme Court—even though evangelicals constitute a very large faith community in America. I suspect that at present no evangelicals could even be nominated or confirmed to a federal bench because they hold views that are pro-life and pro-traditional marriage. People in our Fellowship need to remember that when they cast a ballot, they effectively decide who will sit as a federal judge. Indirectly, they are casting a vote for or against a robust understanding of the free exercise of religion.

Truth In Action Ministries Cites Bogus Jefferson Quote To Refute Separation Of Church And State

Truth in Action Ministries, a purveyor of incendiary “documentaries” that explore our country’s apparent slide into anti-Christian moral turpitude, is back to warn us that Christians are now an increasingly persecuted minority in America.

Watch highlights of the film here:

Hosted by conservative activists Jerry Newcombe and John Rabe, the group’s most recent film, “We the People: Under Attack,” is a field guide to how “activist judges” are restricting religious liberties and the freedom of speech, and includes appearances from right-wing figures such as Herb Titus, Phyllis Schlafly, Carrie Severino and Alan Sears.

The subject of scorn in “We the People” is the federal judiciary, seen as a rogue branch of government with a revisionist interpretation of the Constitution. Newcombe warns that “our country is under attack by activist judges, including some on our nation’s Supreme Court.”

The separation of church and state is framed as both a slap in the face to Christians and a subversion of the will of our Founding Fathers, and Titus laments that the U.S. government doesn’t strictly adhere to the Ten Commandments and the Bible in its public policy. Rabe breathlessly reports that “in recent decades, the federal judiciary has instituted abortion on demand, overturned limits on partial-birth abortion, silenced voluntary prayer in schools and discovered a so-called ‘right to sodomy’ in the constitution.”

Newcombe argues that recent decisions by the Supreme Court defy the Constitution’s purportedly religious themes, and relays this quote by Thomas Jefferson to prove that even he believed in mixing religion with government:

No nation has ever yet existed or been governed without religion. Nor can be. The Christian religion is the best religion that has been given to man, and I as chief magistrate of this nation am bound to give it the sanction of my example.

One slight caveat, however: this quote appears absolutely nowhere in any of Jefferson’s writings or records of his speeches, and first materialized in 1857, decades after Jefferson died. Looks like Newcombe will have to find more fake quotes from the nation’s founders to prove his point. 

JCN Cries Crocodile Tears For Senate Bipartisanship

After President Obama was elected, the right-wing Judicial Confirmation Network changed its name to the Judicial Crisis Network and altered its mission from “working to ensure a fair appointment process of highly qualified judges and justices” to blocking anyone Obama appoints to the bench.

The group’s name and mission statement aren’t the only things to have changed under a Democratic president. JCN’s chief counsel Carrie Severino appeared last week on Sandy Rios In The Morning to decry the Senate’s recent move to modify the filibuster to allow a simple majority to end debate on most nominees – a rules change that the JCN once said it supported “regardless of what party’s in power.”

“The 60 vote majority is there because we need to have both parties working together,” Severino said. “You don’t want to do things by a bare majority vote all the time, and it is actually a benefit to get something that has a larger consensus. I don’t know if Thomas Jefferson initiated it but I wouldn’t be surprised because those kinds of consensuses things that our founders thought were important.”

But during the Bush era Severino’s predecessor, Wendy Long, now a Republican politician, said in 2006 that finding a “consensus” over judicial nominees is “not the right thing to do”:

Seeking a 'consensus' candidate is not the right thing to do. It is not what the Constitution contemplates, in our system built on the consent of the governed. Majorities didn't elect George W. Bush and 55 Republican Senators to do that. For the President to choose a Justice on this basis would retroactively disenfranchise the voters in these elections. The people elected the President so that he would exercise his own judgment according to the criteria he stated in two elections. By definition, those will never be 'consensus' nominees. Justices Ginsburg and Breyer were not 'consensus' nominees, nor should any Republican nominees be — particularly when Republicans control the Senate, for heaven's sake.

But the real issue with Severino’s claim is that Senate Republicans didn’t block Obama’s three picks for the DC Circuit Court because they weren’t “consensus” candidates. Rather, GOP leaders explicitly said they would oppose any person President Obama nominated to the court — a position that they took before even knowing who the nominees would be.

Plus, Republicans’ unprecedented obstructionism — cheered on by the JCN — makes it hard to believe that they were merely hoping for “both parties to work together” to find a “consensus” as Severino maintains.

Meet the Group Trying To Stop President Obama From Filling Vacancies on Federal Courts

Later this week, the Senate will vote on ending the Republican filibuster of Patricia Millett, the first of President Obama’s three nominees to fill vacancies on the influential US Court of Appeals for the DC Circuit. Republican senators have no beef with Millett personally (she’s a renowned appellate attorney, military spouse and black belt), but they’re still threatening to block all three nominees because, they contend, President Obama is attempting to “pack” the 11-member court by going through the constitutionally mandated process to fill its three vacancies.

Backing up this obstruction effort, one familiar outside group has again stepped up to carry Republicans’ water: the Judicial Crisis Network.

In the 2004, as the battle was heating up over confirming some of President Bush’s most far-right nominees, former Bush-Cheney religious right outreach staffer Gary Marx and former Justice Thomas clerk Wendy Long teamed up to found a group called the Judicial Confirmation Network, housed in the offices of the right-wing American Center for Law and Justice and dedicated to “working to ensure a fair appointment process of highly qualified judges and justices.”

Four years later, the Judicial Confirmation Network found itself in a bind when President Obama was elected to be the one nominating federal judges. All of a sudden, JCN lost interest in working to confirm “highly qualified judges and justices” to the bench. So, in 2010 the group changed its name to the Judicial Crisis Network and announced that its mission would heretofore be “to confront the radical legal and legislative threats facing our country” – that is, trying to prevent President Obama from filling seats on the federal courts with highly qualified judges and justices.

Today, the Judicial Crisis Network has emerged as the primary outside group working to prevent the Senate from confirming President Obama’s three nominees to fill the three vacancies on the influential US Court of Appeals for the District of Columbia Circuit. JCN is running radio ads targeting moderate senators urging them to filibuster the three nominees and has launched a snazzy website with infographics purporting to show that President Obama’s nominating qualified people to existing judicial vacancies amounts to “court packing.”

Our colleague Paul Gordon has done a thorough point-by-point takedown of JCN’s “court packing” infographics, but the bottom line is this: Like Senate Republicans who are now trying to permanently cap the DC Circuit at eight judges, JCN sang an entirely different tune when it was a Republican president was doing the nominating.

In the era when JCN was the Judicial Confirmation Network, President Bush had four nominees confirmed to the DC Circuit, bringing its total number of active judges up to 11. Meanwhile, due to Republican obstruction, President Obama has had just one nominee confirmed to the court, bringing the total number of judges on the court to eight.

JCN and Republican senators contend that the DC Circuit’s caseload is significantly lower now than it was then, meriting a reduction of the number of judges on the court. That’s simply not true [pdf]. For instance, in June 2005, when the Senate confirmed far-right Bush nominees Janice Rogers Brown and Thomas Griffith to the tenth and eleventh seats on the DC Circuit, there were 1,313 cases pending before the court. Today, as the GOP is trying to cap the court at eight judges, it is facing 1,479 pending cases.

In 2005, the Judicial Confirmation Network was reminding senators of their “obligation to bring these nominations to the floor for a fair vote.” Today, the Judicial Crisis Network is urging senators to deny floor votes to nominees in the same position.

Later today, JCN’s chief counsel Carrie Severino will be a witness at a House hearing on the DC Circuit titled “Are More Judges Always the Answer?” We can guess that Severino’s public answer to that question will be “no.” But a more forthright answer would be, “It depends who’s nominating them.”
 

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