Earlier today, a deadlocked Supreme Court left in place a lower court decision blocking an Obama administration effort to grant temporary deportation relief to millions of immigrants. One group cheering on the decision was the Immigration Reform Law Institute, the legal arm of the anti-immigrant hate group Federation for American Immigration Reform, which declared, “IRLI will continue to work with patriotic state governments and grassroots activists to beat back the Administration’s drive to dissolve national sovereignty, the rule of law, and economic justice for America’s most vulnerable citizens.”
In fact, IRLI, which is a key player in a network of immigration groups that grew out of the vision of a single white nationalist activist, has done much to shape the legal battle that led to today’s decision. The group noted today that it had “advised the Texas Attorney-General’s office on key facets of the case” that the state had brought against the federal government “and filed a total of six friend-of-the-court briefs.” In fact, documents show that IRLI had an influential role in shaping the direction of Texas’ challenge, as well as the legal movement that it sprang out of.
The Center for New Community wrote in an April report:
Leaders within an organized movement of anti-immigrant activists have not only publicly advocated against President Obama’s executive action to grant Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), they have also been closely involved in crafting and mobilizing a legal challenge to the initiative ever since it was announced. This is not a new strategy for the antiimmigrant movement, which has long used the legal system to fight for its twin goals of dramatically reduced immigration levels and policies that support attrition through enforcement or outright deportation—all in support of the long-term goal of preserving the United States’ white majority.
CNC outlined the work that IRLI did to advise Texas on the case through Kris Kobach, a former IRLI staffer who is now the secretary of state of Kansas but who remains “of counsel” to the organization:
Neither Kobach nor IRLI are formally representing any of the plaintiff states in the case, but evidence, as described below, suggests Kobach has been involved since the case’s beginning.
On November 22, 2014, two days after President Obama’s announcement, The Washington Post reported that Kobach has already begun drafting a lawsuit. The Post’s Eli Saslow reported that Kobach had been speaking at a community forum in Tonganoxie, Kansas, the night of the President’s announcement. Saslow described the situation as “the most pivotal moment of [Kobach’s] career.”
As news of the president’s announcement circulated, Kobach discussed it with the Tonganoxie group. “He tells the group he has already begun drafting a suit as the lead attorney, with plans to file it in early December,” The Post reported. “Texas is interested in being a plaintiff. So are a few other states.” The Post added that Kobach’s lawsuit had “40 or 50 pages already written.”
The morning of December 3, Kobach appeared on Wichita radio host Joseph Ashby’s program. During the interview, Kobach reiterated his involvement in the lawsuit. “I am playing a role,” Kobach said. “I don't know if I'm taking the lead or not, but as many people know, instead of spending my spare time golfing I do litigate.” Kobach added, “litigation is beginning and I am involved in assembling plaintiffs and attorneys around the country to get this done.”
Hours later, The Texas Attorney General’s Office announced the legal action.
We wrote about the record of IRLI and FAIR in a recent report:
FAIR’s legal arm, the Immigration Reform Law Institute (IRLI), has helped craft anti-immigrant legislation around the country, including Arizona’s infamous “self-deportation” measure SB 1070 and efforts to end the 14th Amendment’s guarantee of birthright citizenship . In 2010, Think Progress wrote that “IRLI has been behind most, if not every, local legislative immigration crackdown over the past few years.” Much of this work wasdriven by IRLI lawyer Kris Kobach, who joined the group in 2003. Kobach is now secretary of state of Kansas, but remains “of counsel” to IRLI. He served as an advisor to Mitt Romney during his 2012 presidential campaign, when Romney espoused the doctrine of “self-deportation.”
FAIR’s current president is Dan Stein, who has worked for the organization since 1982. Stein has framed the immigration debate in racial terms, calling the 1965 Immigration and Nationality Act, which eliminated a quota system that favored Northern Europeans and shut out Asians and Africans, an attempt to “retaliate against Anglo-Saxon dominance“ in the country. He has warned that President Obama’s immigration policies will cause the U.S. to “ fall apart” like Iraq and once speculated that the U.S. has seen so few terrorist attacks under President Obama because terrorists see him as an “ally” and “don’t want to embarrass” him.
While Stein has hinted at immigration restriction as a tool of white nationalism, FAIR has openly associated with people who explicitly advocate for the U.S. to remain a white-dominated nation.
A short-lived television program produced by FAIR in 1996 featured interviews with well-known white nationalists Sam Francis, Jared Taylor and Peter Brimelow, and a common area of discussion was that the immigrant “invasion” would destroy America. Stein, interviewing one guest, wondered, “How can we preserve America if it becomes 50 percent Latin American?” In a 1991 interview for an article on the higher birth rates among Asian and Latino immigrants than among native-born Americans, Stein said, "It's almost like they're getting into competitive breeding. You have to take into account the various fertility rates in designing limits on immigration.” Six years later, he told the Wall Street Journal, “Certainly we would encourage people in other countries to have small families. Otherwise they'll all be coming here, because there's no room at the Vatican.”
Over a period of 10 years in the 1980s and 1990s, FAIR took in more than $1 million from the Pioneer Fund, which SPLC describes as “a eugenicist organization that was started in 1937 by men close to the Nazi regime who wanted to pursue ‘race betterment’ by promoting the genetic lines of American whites,” and for several years afterward continued to receive support from individual leaders of the fund.
Sen. Jeff Sessions of Alabama, a Republican member of the Senate Judiciary Committee, warned in a speech to the Faith and Freedom Coalition’s Road to Majority conference today that “the courts are at risk” in the upcoming presidential election, lamenting that at least one current Supreme Court justice displays a “secular mindset.”
Sessions said that as the committee’s ranking member during the confirmation hearings of Justices Sonia Sotomayor and Elena Kagan, “I felt, like so many of you, the court hasn’t been performing in a way we like it to.”
He repeated a criticism of Sotomayor that conservatives had leveled at her during her confirmation hearings, expressing dismay that she had approvingly quoted legal scholar Martha Minow’s observation that in the law "there is no objective stance but only a series of perspectives — no neutrality, no escape from choice in judging," an acknowledgment of the hidden assumptions and biases that all judges bring to the law.
Sessions said the quote “still makes the hair stand up on the back of my neck.”
“You see, this is a postmodern, relativistic, secular mindset and I believe it’s directly contrary to the founding of our republic,” he said.
“So I really think this whole court system is really important,” he added later in the speech, “and the real value and battle that we’re engaged in here is one to reaffirm that there is objective truth, it’s not all relative. And that means some things are right and some things are wrong, and we’re getting too far away from that in my opinion and it’s not healthy for any country and it’s really not healthy for a democracy like ours that’s built on the rule of law.”
Sen. Chuck Grassley of Iowa, the chairman of the Senate Judiciary Committee, has taken the lead in the Senate GOP’s effort to block Judge Merrick Garland’s Supreme Court nomination in the hope that a President Donald Trump will be the one to name the late Justice Antonin Scalia’s replacement.
Grassley’s blockade became even more problematic this week when Trump launched a racist assault against a federal judge who is hearing a fraud case involving his Trump University. Trump claimed that the judge, who was born in Indiana to parents who emigrated from Mexico, had an “inherent conflict of interest” in the case because he is “Mexican” and Trump is “building a wall.” The presumptive GOP presidential nominee later acknowledged that using the same logic, it was “possible” that a Muslim judge should also be disqualified from hearing a case involving him.
Trump’s comments drew widespread condemnation, including from some of his fellow Republicans, but Grassley, apparently, didn’t see the problem. In a conference call with Iowa reporters today, Grassley equated Trump’s comments with Justice Sonia Sotomayor’s famous “wise Latina” remark that became a right-wing flashpoint during her 2009 confirmation hearings:
“I think that you don’t have any more trouble with what Trump said than when Sotomayor said that — when she was found saying in speeches that, quote, ‘A wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male,’” he said. “I don’t hear any criticism of that sort of comment by a justice of the Supreme Court.”
Grassley didn’t pull this comparison out of thin air: The same comparison has been popping up all over the right-wing media.
It’s a flashback to 2009, when conservatives latched on to a speech Sotomayor had given in 2001 in which she disagreed with the idea that a judge isn’t influenced by his or her personal background:
Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. … I am also not so sure that I agree with the statement. First, … there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.
What Sotomayor’s critics often chose to ignore was that she went on to say that while a judge’s personal experience can’t help but influence how they see the world, a good judge tries to look beyond the myopia of personal experience to understand the lives of others:
I … believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. … [Nine] white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.
However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.
Sotomayor later clarified in the face of right-wing criticism: “I want to state upfront, unequivocally and without doubt: I do not believe that any ethnic, racial or gender group has an advantage in sound judging. I do believe every person has an equal opportunity to be a good and wise judge, regardless of their background or life experience."
It shouldn’t be surprising that Grassley and some of his allies on the Right are reviving the “wise Latina” attack on Sotomayor as they attempt to defend Trump. In fact, Trump’s comments about Judge Gonzalo Curiel are not that different from how the Right attacked Sotomayor during her confirmation hearings, claiming that simply because she had spoken proudly of her Latina heritage and acknowledged that a person’s background can shape how they see the world she would be driven by “identity politics” rather than the law.
Some claimed explicitly, and many others implicitly, that Sotomayor, who had graduated from Princeton and Yale and had served for many years as a federal judge, was not as qualified as a white judge with a similar record. Pat Buchanan, who is now an enthusiastic cheerleader for Trump, was one of those who made the claim explicitly when he wrote that white Americans “pay the price of affirmative action when their sons and daughters are pushed aside to make room for the Sonia Sotomayors.”
We wrote in a report after her confirmation:
Sotomayor’s “wise Latina” remarks were taken out of context to imply that she was some kind of ethnic supremacist, and her ruling in the Ricci affirmative action case was wildly distorted to suggest that she was a judicial activist who lived to use the law as a club against white men. Pundits like Rush Limbaugh and elected officials like Tom Tancredo called her a racist. Pat Buchanan charged her with having a “race-based” approach to justice and having demonstrated “a lifelong resolve to discriminate against white males.”
On the first day of Sotomayor’s confirmation hearings, columnist Eugene Robinson observed:
Republicans' outrage, both real and feigned, at Sotomayor's musings about how her identity as a "wise Latina" might affect her judicial decisions is based on a flawed assumption: that whiteness and maleness are not themselves facets of a distinct identity. Being white and male is seen instead as a neutral condition, the natural order of things. Any "identity" — black, brown, female, gay, whatever —has to be judged against this supposedly "objective" standard.
Thus it is irrelevant if Justice Samuel A. Alito Jr. talks about the impact of his background as the son of Italian immigrants on his rulings — as he did at his confirmation hearings — but unforgivable for Sotomayor to mention that her Puerto Rican family history might be relevant to her work.
This seems to be the attitude of the Trump campaign, whose top operative has said that picking a woman or person of color as a vice presidential nominee would amount to “pandering” and whose list of potential Supreme Court picks were all white and mostly men. According to Trump, it seems, only white men can be unbiased and qualified. And Grassley seems to think that’s just fine.
It was both completely in character and shamefully beyond the pale when Donald Trump accused Judge Gonzalo Curiel, who is presiding over two lawsuits against Trump University, of having an “inherent conflict of interest” in the cases because of the judge’s Mexican heritage. On Sunday he extended that charge to Muslim judges, who he also suspects would be unable to remain unbiased. If there was a shred of doubt remaining on the question of whether Donald Trump is fit to make judicial nominations before this attack, that debate is now over. Even GOP senators arespeaking out against Trump’s remarks. But in a contortion act that defies logic, those same senators continue to go to extraordinary lengths to hold open the vacant Supreme Court seat for the very person whose approach to judicial matters they are condemning.
GOP leaders rushed to denounce Trump’s remarks about Judge Curiel, with Republican senators including Kelly Ayotte, Jeff Flake, Rob Portman, and Mitch McConnell speaking out against his comments and House Speaker Paul Ryan calling them “out of left field” even though even a casual observer knows they were coming right from home plate for the past year. Trump has been consistent in his baseless attacks on entire communities since the first day of his campaign, when he smeared Mexican immigrants as rapists and drug dealers. And if some in the GOP are (rightly) condemning Trump’s vision of a justice system in which some judges are prohibited from doing their jobs because of their ethnic background, why are they going to extraordinary lengths to put him in the driver’s seat of our nominating process?
GOP senators are still doing everything they can to block President Obama from filling the Supreme Court vacancy. Rather than follow the Constitution and give fair consideration to President Obama’s extraordinarily qualified and respected nominee, GOP senators are running a campaign of unprecedented obstruction in order to allow Trump to make the Supreme Court nomination instead.
Let’s be clear: Trump had already provided countless reasons to call into question his fitness to nominate judges. This is a man who supports killing the family members of terrorists and wants to “open up” libel laws so he can go after journalists. That he’s now implying whole swaths of people are not fit for the federal bench is one of the most disturbing examples yet of Trump’s contempt for the independence of the judiciary and for Americans different from him. It goes against the most fundamental values of our country, and it is Exhibit A of why he should never be the person nominating judges at the Supreme Court or any level.
It’s no wonder Americans are worried about the prospect of Donald Trump making judicial nominations. Even before his attack on Judge Curiel, a recent poll found that the majority of Americans don’t trust Trump to fill the Supreme Court vacancy, and they’re none too pleased with the senators obstructing President Obama’s nominee.Half of voters say they are “less likely to vote for a senator who opposed having confirmation hearings” for Judge Merrick Garland. For Republican senators in tight reelection battles, their unwillingness to do their jobs is increasingly and rightfully becoming a liability with voters.
The fact that GOP senators are flat-out refusing to do their jobs on the Supreme Court was already an outrage. That they are now working to hold the seat open for a man who thinks some judges can’t do their jobs because of their ethnic background or religion is unconscionable and should be, quite frankly, embarrassing to all Republicans. GOP leaders are in a position of both condemning Trump’s approach to judicial issues and working to make sure he’s the one to make lifetime judicial appointments. Make sense? It doesn’t to me, either.
The choice is now crystal clear. It’s time to call the question and give Merrick Garland a vote.
Since Senate Judiciary Chair Chuck Grassley is making sure that the committee he runs completely ignores Merrick Garland’s Supreme Court nomination, one might think that he’s using the extra time to at least process the president’s many circuit and district nominees. Not!
While Grassley and Senate Majority Leader Mitch McConnell’s brazen and unprecedented refusal to consider Garland has drawn a great deal of attention, PFAW has long reported on how this obstruction, far from being unique to Garland, is an extension of how the Senate GOP has treated President Obama’s lower court nominees for most of his time in office.
Today, Sen. Elizabeth Warren has made a tremendous contribution to the national conversation, issuing a new report entitled Going to Extremes: The Supreme Court and Senate Republicans’ Unprecedented Record of Obstruction of President Obama’s Nominees." The senator covers how Republicans have worked hard not to thoughtfully vet both judicial and executive branch nominations, but to slow down their confirmations as much as possible, or block their confirmations altogether.
She uses Senate Republicans’ own statements about the Garland nomination to show the disingenuousness of the rationales for obstruction they present to the public and demonstrates that their obstruction is unprecedented. And with a prosecutor’s efficiency, she makes the powerful case that the GOP has consistently and deliberately slow-walked or blocked altogether the president’s circuit and district court nominees, as well as his executive branch nominees.
Supported with facts and figures from the nonpartisan Congressional Research Service, Sen. Warren’s new report is a devastating indictment of a political party that has misused the confirmation process to prevent the executive and judicial branches from functioning effectively to protect consumers and workers, hold large corporations accountable, and protect equality.
As she notes in the report’s conclusion:
From the moment the Supreme Court vacancy arose, Senate Republicans linked arms in an attempt to deny President Obama the full authority of his office in the final year of his presidency. They cynically claimed they wish to “let the people decide,” but the people have already decided. Twice. They elected President Obama in 2008 by nine million votes and re-elected him in 2012 by five million votes. Republicans’ statements over many weeks have made clear that their true interest is what it has been for the past eight years: to block and hinder President Obama at every turn, dragging out or blocking outright the confirmation of nominees across the government and the courts.
As the report shows, the GOP has a shameful record of obstruction going back to President Obama’s first days in office. The unprecedented blockade against Garland is only the apex of a pattern that has gone on for years.
To: Interested Parties
From: People For the American Way Foundation, Constitutional Accountability Center
Date: June 2, 2016
Re: Harming Justice: Effects of an Eight-Justice Supreme Court
The Supreme Court is about to embark on the most consequential portion of its Term: handing down decisions on some of the biggest questions facing the country today, questions ranging from immigration to abortion to affirmative action. It will be tackling those questions without a full complement of justices. Justice Antonin Scalia died in February, leaving only eight members on the Supreme Court. Since Justice Scalia’s death, President Obama followed his constitutional duty and duly nominated the highly qualified and impeccably credentialed Judge Merrick Garland to fill the vacancy on the Court. However, conservative Senators have refused to do the jobs the people of their state sent them to Washington to do. The previous four Justices named to the Court waited an average of 74 days from nomination to confirmation; Judge Garland passed that mark on May 28 and has yet to be even given a hearing by the Chairman of the Judiciary Committee Chuck Grassley.
Having only eight Justices on the Supreme Court for a prolonged period of time diminishes the Court, diminishes the country, and diminishes the rule of law. With only eight justices, all too often the Supreme Court cannot do the job the Framers of the Constitution assigned to it.
The diminishing effects of an eight-Justice Court include:
The effects of an eight-Justice Court ripple far outside of Washington, DC. Millions of American lives are impacted by the decisions the Court makes – or doesn’t make. The sooner Senators set aside partisanship in favor of doing their jobs, the better off the Court and the country will be. For more information on the effects of an eight-member Court, please see the report Material Harm to Our Justice System: The Consequences of an Eight-Member Supreme Court.
After Donald Trump released a list of 11 people he would consider nominating to the Supreme Court if he were elected president, some conservatives who had been wary of supporting the presumptive GOP nominee began using it as an excuse to rally behind him. But not all of Trump’s conservative critics are convinced that he would actually pick from the judges on his list, many of whom were hand-picked by the conservative Heritage Society.
Among the skeptics is Steve Deace, the conservative Iowa talk radio host and vocal Trump critic, who said on his radio program yesterday that he did not believe Trump would actually nominate any of those judges when push comes to shove and that conservative activists are just using the Supreme Court list as a “fig leaf” as they “sell their souls” to Trump.
Deace’s guest, Daniel Horowitz of Conservative Review, predicted that Senate Democrats would never allow the confirmation of “a true originalist in the mold of Clarence Thomas” and that Trump would end up compromising on his court picks.
Deace agreed. “Why does anybody believe, anybody, unless they just want to be deceived, why does anybody believe that he would follow through on any of those things?” he asked.
“This is being done to offer a fig leaf to give conservative leaders and conservative voters who supported Ted Cruz permission to cross over and to say ‘We can now vote for Trump,’” he said. “And they have plausible deniability, if he doesn’t nominate any of those guys, then they’re victims later on, ‘Well, we went with his words, we had no other alternative, there’s nothing else we could do, we didn’t want Hillary to win, it’s all on his head.’ That’s what this is. It’s nothing more, nothing less, than a fig leaf to give Ted Cruz’s conservative infrastructure permission to sell their souls and to bow the knee and kneel before Zod.”
Donald Trump, faced with conservative jitters over whom he would name to the Supreme Court if he were elected president, has promised to release a list of names from which he would promise to pick nominees. Today, according to the Associated Press, he released that list.
According to the Daily Beast, all of Trump’s 11 picks are white. Just three are women.
Trump’s list includes two possible picks whom he has frequently mentioned on the campaign trail: federal appeals court judges William Pryor and Diane Sykes. It also includes three additional people whom the Heritage Foundation recommended for Supreme Court posts after Trump said he would consult with the conservative group on his list: Raymond Gruender and Steven Colloton, both federal appeals court judges, and Texas Supreme Court Justice Don Willet.
Also on Trump’s list are Thomas Lee, a Utah Supreme Court justice and brother of Republican Sen. Mike Lee; Michigan Supreme Court Justice Joan Larsen, a former clerk to the late Justice Antonin Scalia; David Stras, who serves on the Minnesota Supreme Court; and federal appeals court judges Thomas Hardman and Raymond Kethledge.
It looks like Trump has, true to his promise, picked potential justices who would advance the conservative efforts to skew the federal courts far to the right. The libertarian publication Reason, for instance, has gushed over Willett for his willingness to overthrow government regulations. (Willett, for what it’s worth, does not seem to return Trump’s admiration.)
We profiled Pryor, Sykes and Colloton last month:
William H. Pryor
One possible Supreme Court nominee whom Trump has specifically praised is William H. Pryor, selected by President George W. Bush to be on the U.S. Court of Appeals for the 11th Circuit. Formerly Alabama’s attorney general, Pryor has a history of extreme right-wing activism, severely criticizing not just women’s right to choose under Roe v. Wade but even the constitutionality of the New Deal.
Pryor has called Roe the “worst abomination in the history of constitutional law.” He has claimed that with the New Deal and other measures, the U.S. has “strayed too far in the expansion of the federal government,” and asserted that it “should not be in the business of public education nor the control of street crime.” As a judge, he has helped uphold a restrictive Georgia voter ID law and joined just one other judge on the 11th Circuit in claiming that “racially disparate effects” should not be enough to prove a violation of Section 2 of the Voting Rights Act, even though the Supreme Court has ruled precisely the opposite.
Pryor came first on a wish list of Supreme Court picks that the Heritage Foundation published shortly after Trump promised to consult them before naming justices.
Trump has also repeatedly named Diane Sykes, a Seventh Circuit federal appeals court judge appointed by President George W. Bush, as a potential Supreme Court nominee. Sykes, who previously served on the Wisconsin Supreme Court and a trial court, has also won high praise from the Heritage Foundation and from right-wing Wisconsin Gov. Scott Walker.
In a series of dissents, Sykes has argued in favor of big business and against consumers and discrimination victims, including cases where she tried to limit corporate liability for product defects and overturn a $1 million damages award, to protect a corporation from having to defend against an employee’s claim of discrimination under the Americans with Disabilities Act, and to reverse a $3.5 million bad faith judgment in favor of a Lutheran church against its insurance company.
She showed her anti-reproductive-choice views in providing a lenient sentence to two anti-abortion protesters who had to be forcibly removed from blocking the entrance to a Milwaukee abortion clinic and had previously been arrested 100 times for such offenses; Sykes nevertheless praised them for their “fine character” and expressed “respect” for the “ultimate goals” the blockade “sought to achieve.”
She asserted in dissent that a jury verdict against a criminal defendant should have been upheld even though there was extensive evidence that one of the jurors did not understand English (including a statement from the juror himself), which disqualified him from serving on a jury under Wisconsin law; that a prosecutor should be immune from a claim that he fabricated false evidence that wrongly convicted a man for 17 years; and that a conviction under federal law against someone convicted of domestic violence for possessing firearms should be reversed and that the law itself could well be unconstitutional, in disagreement with all 10 other judges on the court of appeals. She voted in favor of a Wisconsin voter ID law and of a claim by a student group that it should receive state funding and recognition despite its violation of a university rule prohibiting against discrimination based on sexual orientation, an issue on which the Supreme Court reached exactly the opposite conclusion several years later.
She asserted in dissent that a jury verdict against a criminal defendant should have been upheld even though one of the jurors did not understand English, that a prosecutor should be immune from a claim that he fabricated false evidence that wrongly convicted a man for 17 years, and that a conviction under federal law against someone convicted of domestic violence for possessing firearms should be reversed and that the law itself could well be unconstitutional, in disagreement with all 10 other judges on the court of appeals. She voted in favor of a Wisconsin voter ID law and of a claim by a student group that it should receive state funding and recognition despite its violation of a university rule prohibiting against discrimination based on sexual orientation, an issue on which the Supreme Court reached exactly the opposite conclusion several years later.
The third name on Heritage’s list of possible Supreme Court nominees is Judge Steven Colloton, who was appointed by President George W. Bush to the Eighth Circuit Court of Appeals, after previous service for Independent Counsel Kenneth Starr and as a U.S. attorney.
Colloton has been at the forefront of a number of troubling Eighth Circuit rulings, including writing decisions that reversed an $8.1 million award to whistleblowers who helped bring a defective pricing and kickback claim against a large corporation and a nearly $19 million class action judgment against Tyson Foods for violating the federal Fair Labor Standards Act. He also joined a ruling making the Eighth Circuit the only appellate court in the country that found that the Obama administration’s efforts to accommodate religious universities and other religious nonprofit objectors to the provision of contraceptive coverage under the ACA was insufficient, an issue n ow being considered by the Supreme Court.
Even more troubling, Colloton has dissented from a number of Eighth Circuit rulings that have upheld the rights of employees, consumers and others against big business and government agencies. He dissented from a decision giving African-American shoppers the opportunity to prove discrimination claims against a large department store, and then saw his view prevail by one vote when the full Eighth Circuit reheard the case. In another case, he dissented from a decision finding that a city had violated the Voting Rights Act by improperly diluting the voting strength of Native Americans.
Colloton dissented from rulings that gave individuals a chance to prove claims of use of excessive force and, in one case, that a city’s policy to use police dogs to bite and hold suspects without any warning was unconstitutional. In three separate cases, he dissented from decisions that employees should at least get the chance to prove in court that their employers retaliated against them for filing sex harassment, age discrimination, or other discrimination claims. In two more decisions, he argued in dissent that public employees should not have the opportunity to prove that they were retaliated against for speaking out in violation of their First Amendment rights. Yet he also claimed in a dissent that the First Amendment rights of a candidate for state supreme court justice were violated by a state judicial code of conduct restricting solicitation and other campaign activity in order to promote judicial impartiality and ethical conduct by judges. Even the conservative Roberts Court that decided the Citizens United case has agreed that these concerns justify solicitation restrictions in state supreme court elections.
This post has been updated to clarify the circumstances of a case in which Sykes asserted in a dissent that a jury verdict should have been upheld despite evidence that one juror was disqualified from serving.
Senate Majority Leader Mitch McConnell has said that the Senate won’t confirm any Supreme Court nominee unless that nominee has the support of the National Rifle Association, which has been stretching the truth in its efforts to oppose the nomination of Merrick Garland.
The absurdity of this position was reinforced yesterday when, as Media Matters reported, NRA board member and perpetual loose cannon Ted Nugent posted on his Facebook page a fake video of Hillary Clinton being shot, with the caption “I got your guncontrol right here bitch!”
This is who McConnell wants in charge of vetting Supreme Court justices?
This sort of gleeful violence is nothing new to Nugent, who in a 2007 onstage rant relished the prospect of killing Clinton and then-candidate Obama:
Decked out in full-on camouflage hunting gear, Nugent wielded two machine guns while raging, "Obama, he's a piece of shit. I told him to suck on my machine gun. Hey Hillary," he continued. "You might want to ride one of these into the sunset, you worthless bitch." Nugent summed up his eloquent speech by screaming "freedom!"
Stunningly, there seems to be no organized effort within the NRA to fire Nugent, even as some NRA members have been waging a campaign to oust anti-tax activist Grover Norquist from the organization’s board because they claim he is a Muslim Brotherhood agent.
Nugent, not surprisingly, is enthusiastically backing Donald Trump in the presidential race.
So, Senate Republicans are refusing to so much as hold a hearing on Garland’s nomination in the hope that Trump will become president and nominate someone who has been approved by Nugent and his organization? Sounds reasonable.
When Justice Antonin Scalia died in February, the Senate GOP quickly vowed to keep his Supreme Court seat open until the next president takes office. They kept that vow even after President Obama nominated Merrick Garland, somebody whom Republicans had previously praised as a best-case scenario for a nominee from a Democratic president.
Now, after Ted Cruz dropped out of the Republican race last night, it’s all but certain that the next president will be Hillary Clinton, Bernie Sanders or Donald Trump. We can assume that Senate Republicans aren’t hoping that Clinton or Sanders will pick the next Supreme Court justice — which means that they are holding the seat open for Trump.
Trump has attempted to reassure movement conservatives concerned about his potential Supreme Court picks that he will choose somebody from a list drawn up by the conservative Heritage Foundation , with input from the Federalist Society. Those potential nominees are bad enough — but it's possible that Trump, who isn’t known for keeping his promises, couild pick someone even worse.
However much Trump promises deference to the Heritage Foundation on the Supreme Court, the fact is that Senate Republicans are now hoping to hand over the nomination process to someone who believes the news he reads in the National Enquirer , chain emailsand racist Twitter feeds; is an enthusiastic birther conspiracy theorist; and has said that women should be punished for seeking illegal abortions.
Trump seems to lack even a basic understanding of how the legal system works, saying that judges sign bills, displaying complete ignorance of the central legal issue behind Roe v. Wade and opining that he would like to see the Obergefell marriage equality decision “unpassed.” Further showing his gravitas, he also engaged in right-wing conspiracy theories about Scalia’s death.
Senate Republicans are refusing to even hold a hearing on Garland’s nomination so that they can hold a Supreme Court seat open for months on end with the hope that Donald Trump will fill it. They have some explaining to do.
Among the groups pressuring Republicans in the Senate to continue their blockade of President Obama’s Supreme Court nominee is Gun Owners of America, a gun lobby group that holds considerable sway on Capitol Hill despite its history of promoting wild conspiracy theories, frequent warnings to elected officials that they should fear assassination and deep ties to radical militia groups and white supremacists.
GOA has circulated a petition to its members claiming that Obama’s nominee, Merrick Garland, “would reverse your ability to own a gun” and “hates the Second Amendment,” basing its claims on exceedingly thin evidence. While these attacks on Garland’s record have been widely discredited, several Republican senators have pointed to the judge’s supposed disrespect for the Second Amendment as a reason to oppose him.
GOA’s general counsel, Michael Hammond, brought these claims to an op-ed in USA Today on Sunday, which GOA followed up with a video claiming again that Garland “hates the Second Amendment” and that if he gets on the court “good people will go to prison for exercising their constitutional rights.” Obama’s nomination of Garland, the video warns, is “the most significant step in his sordid trail towards transforming our nation.”
This paranoid and exaggerated language is typical of a group that has ties to the violent militia fringes of the Right and stays afloat by promoting conspiracy theories about various federal plots to snatch law-abiding people’s guns.
Tim Macy, the group’s chairman and the head of a “Second Amendment Coalition” on Ted Cruz’s presidential campaign, used similar rhetoric in March when he said that the Garland nomination was Obama’s “last-ditch effort” to “ruin the Second Amendment and destroy this country.”
The group’s executive director, Larry Pratt, went even further when he implied that Garland should fear assassination if he displeases gun groups. “Happily, the Second Amendment is all about people like Judge Garland, so there is a limit to how far he can go, I think,” Pratt told radical radio host Rick Wiles.
Pratt frequently makes similar comments. We wrote last year:
In an interview last year, Pratt said that being afraid of assassination was “a healthy fear” for members of Congress to have, because that’s what makes them “behave.” When Rep. Carolyn Maloney, D-NY, who had felt threatened by one of GOA’s members, complained about his comments, Pratt doubled down, saying that elected officials should fear “ the cartridge box” and accusing the congresswoman of being “ foolish” and having “a hissy fit .” Later, he boasted that Democratic proponents of stricter gun laws are “afraid of getting shot and they ought to be!”
On his weekly radio program last year, Pratt said that President Obama should learn from the example of Charles I, who was executed for treason in the 17th century:
Pratt’s view of the Second Amendment as a tool for a well-armed minority of insurrectionists to take on a government they disagree with comes straight from the fringe militia movement, which Pratt helped shape in the 1990s.
And that’s not all. According to the Southern Poverty Law Center, “In 1996, Pratt was forced to resign as co-chairman of Patrick J. Buchanan's presidential campaign when it was publicized that he had been a speaker at the 1992 Gathering of Christian Men in Estes Park, Colo., where he rubbed shoulders with neo-Nazis, Klansmen, adherents of the anti-Semitic Christian Identity theology, and other radicals.”
More recently, Pratt was a cheerleader for the armed militias who staged a standoff with the federal government at Cliven Bundy’s ranch in Nevada, saying that the incident came “very close” to provoking “a civil war between the people and the government.”
In his role at the helm of GOA, Pratt is happy to stir up conspiracy theories and anti-government paranoia in an effort to turn his group’s membership against any attempt at reasonable gun law reform.
He has humored radical radio hosts who have suggested that the Sandy Hook school and Aurora movie theater massacres were inside jobs designed by the government.
And, as we wrote last year, Pratt has plenty of conspiracy theories of his own:
… He has claimed that Obama is building up a private security force within the Department of Homeland Security to use for his own purposes “if he can’t actually commandeer the military”; warned that Obama will enlist undocumented immigrants into a private “ Praetorian guard” and advise police officers to go after people with conservative bumper stickers ; said Obamacare will ultimately “take away your guns”; feared Obama is stockpiling “anti-personnel rounds” because he “ seems to view the American people as the enemy”; claimed that Obama “had to steal” the 2012 presidential election and even buys into the fringe birther theory that holds that the president’s “real father” was labor activist Frank Marshall Davis.
Here is Pratt talking with fringe radio host Stan Solomon about the possibility that President Obama will start a race war:
This is who the GOP wants to listen to on the Supreme Court?
Anti-choice groups have made no secret of the fact that they are pressuring Senate Republicans to continue their blockade of President Obama’s Supreme Court nominee, Merrick Garland, in the hope that a Republican-nominated justice will vote to undo Roe v. Wade.
Americans United for Life, the group that shapes the anti-choice movement’s legal strategy, made this argument explicitly in an email today asking members to pressure their senators to keep up the blockade of Garland.
Clarke Forsythe, the group’s acting president, claims in the email that the “only reason abortion advocates are pushing this nomination is to roll back the pro-life gains in courts and legislatures across the country” and promises that “the right Supreme Court” will roll back Roe.
AUL is one of a number of anti-choice groups, including the Susan B. Anthony List, Concerned Women for America, the Family Research Council, Priests for Life, the clinic protest group Pro-Life Action League and David Daleiden’s attorneys at Life Legal Defense Foundation, who have launched a website targeting Judiciary Committee Chairman Chuck Grassley, R-Iowa, and Sen. Rob Portman, R-Ohio, urging them to continue to stall Garland’s nomination.
Forsythe writes, under the subject line “You Have the Power to Help Roll Back Roe v. Wade”:
Do you believe Roe v. Wade can be rolled back? At Americans United for Life, we know that the answer is YES … with the right Supreme Court.
For more than 40 years, we pro-life Americans have been working to overturn the destructiveness of Roe v. Wade and Doe v. Bolton, the twin cases that brought incredible devastation to mothers and their unborn children, making both vulnerable to the profiteering of a greedy abortion industry. With the death of Justice Antonin Scalia, the Supreme Court hangs in the balance today, making it vital that NO appointment to the high court occur until after the voters weigh in on Election Day. You can help make that happen.
Please click here to contact your U.S. Senators, telling them to wait until after the election to deal with the opening on the Supreme Court.
All that AUL has been working for since 1971 is at stake in President Obama’s attempt to put a fifth pro-abortion justice on the Supreme Court. Don't let them crush democracy on the abortion issue for another two or three decades. No president has been more firmly committed to the abortion industry than Barack Obama, making his pick for the Supreme Court, Judge Merrick Garland, the wrong choice to be added to the fragile balance in a fractured court.
Please click here to contact your U.S. Senators now.
Judge Garland is President Obama’s pro-abortion pick to tempt some Republicans to act now to fill the vacancy on the Supreme Court. But it’s important to remember that President Obama, Vice President Biden and even Sen. Chuck Schumer, all urged the Senate to hold the line against Supreme Court picks late in a president’s term. The only reason abortion advocates are pushing this nomination is to roll back the pro-life gains in courts and legislatures across the country.
Please contact your Senators today, asking them to let Americans have a voice in deciding the future of the Supreme Court, through their choice of leadership. Click here to contact them now, and please forward this to friends and family so that we all can have a voice in whether all people are welcomed in life and protected in law.
With so many Justices on the Supreme Court nearing retirement, the time is now to let your Senators know that it matters to you who sits on the nation’s Supreme Court.
Thank you for standing with Americans United for Life at this important time. We can make a difference.
Acting President & Senior Counsel
Americans United for Life
Sen. Chuck Grassley, R-Iowa, joined a conference call of anti-abortion activists hosted by the Susan B. Anthony List last night to assure them that he would continue to hold the line and refuse to hold a Judiciary Committee hearing on President Obama’s Supreme Court nominee, Merrick Garland.
Also joining the call were Republican Sen. Steve Daines of Montana and Sen. James Lankford of Oklahoma, who delivered an opening prayer.
Grassley told the activists that when someone asked him for an update on the nomination last week, he said that “an update would suggest that something has changed” and that he still intends to block any nominee until the next president takes office.
He said that preventing “another liberal” from joining the Supreme Court was necessary to keep “even the reasonable restrictions on abortion that have been enacted into law through the democratic process” from being “swept away.”
Grassley cited a recent National Right to Life poll which he said found that “about 80 percent of Americans don’t believe that abortions should be available after the first trimester.” (It was more complicated than that.)
“But we know that justices who embrace the view that the Constitution is a living document don’t share that view that you and I share,” he said. “The American people, through their elected representatives, should be making these policy decisions, not unelected judges. These are life-and-death issues that we’re fighting for. They show just how important this fight over who’s going to fill Scalia’s seat is.”
In response to a question from SBA List president Marjorie Dannefelser, Grassley suggested that news reports characterizing Garland as moderate are a misleading ploy by the media (one that, if he was correct, he himself and some of his Republican colleagues would be in on).
When Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan were nominated, he said, “always in these headlines at the time they were nominated, that adjective was the word ‘moderate,’ just like Garland. Well, we know how those four have turned out. So don’t believe what you read in the press about people’s basic philosophy, because they got it all wrong and probably intentionally all wrong.”
When Dannenfelser asked Grassley to respond to the argument that the Senate is neglecting its job by refusing to even consider Garland’s nomination, Grassley repeated his claim that it would actually be a waste of taxpayer money to give Garland a hearing.
“Well, we could have a hearing, we aren’t going to have a hearing, but let’s just suppose we could have a hearing,” he said. “And I know 52 people, at least 52 in the Senate, aren’t going to approve it. So you have a hearing and you spend a lot of taxpayers’ money gearing up for it, you spend a lot of time of members, a lot of research that has to be done by staff, and then it ain’t going to go anyplace.”
“It’s like getting dressed up for the prom but you don’t get to go,” Dannenfelser said.
As we and others have noted, the Judicial Crisis Network, the primary outside group backing the Senate GOP’s blockade of President Obama’s Supreme Court nominee, is funded almost entirely by a dark-money group connected to a single family of conservative donors.
On Friday, Open Secrets uncovered that the same dark-money network funding JCN is behind another group that is working to oppose Merrick Garland’s nomination: the Foundation for Accountability and Civic Trust (FACT).
Open Secrets reports that FACT, which styles itself as a right-wing alternative to Citizens for Responsibility and Ethics in Washington (CREW), receives all of its funding through Donor’s Trust, a donor-advised fund that acts as a “pass-through vessel” for conservative funders, making the source of contributions all but impossible to trace. But Open Secrets found evidence linking FACT to the Corkery family, who are behind a number of conservative groups including JCN. JCN and FACT share a treasurer, Neil Corkery, and FACT has the same front address as a number of Corkery-linked groups.
The executive director of FACT and the sole paid employee listed on its most recent tax filing is Matt Whitaker, a former U.S. Attorney from Iowa who we here at Right Wing Watch remember from his unsuccessful run for his home state’s Republican Senate nomination in 2014 (it ultimately went to now-Sen. Joni Ernst). When asked at a debate what criteria he would use to determine whether to support or attempt to block President Obama’s federal judicial nominees, Whitaker said that he would ask if nominees are “people of faith” and “have a biblical view of justice.”
“As long as they have that worldview, then they’ll be a good judge,” he said. “And if they have a secular worldview, where this is all we have here on earth, then I’m going to be very concerned about how they judge.”
From the Open Secrets report on FACT:
One right-leaning group has weighed in more quietly: The Foundation for Accountability and Civic Trust (FACT) has demanded Harvard University release records having to do with Garland’s role in the debate in the early 1970s over whether to allow ROTC recruiters on that campus. In late March, FACT’s executive director, Matthew Whitaker, was quoted saying that “Americans have a right to know about Garland’s views of the military.”
Turns out JCN and FACT have something in common, beyond a penchant for keeping the names of their donors secret: Neil Corkery, who is treasurer of the judicial group and also the treasurer and a member of the board of directors at FACT, a 501(c)(3) organization.
Its funding — $600,000 in 2014, according to the only tax return it has filed to date — comes entirely from a conservative donor-advised fund called DonorsTrust, which means it could come from anywhere. DonorsTrust is a pass-through vessel that manages the charitable contributions of wealthy individuals and foundations to organizations that are “dedicated to the ideals of limited government, personal responsibility, and free enterprise,” according to its website, while allowing the donors to remain anonymous. Charles Koch is among the many conservatives who have filtered money through DonorsTrust.
In other words, an organization “dedicated to promoting accountability, ethics, and transparency” gets 100 percent of its funds from a group that exists mainly as a vehicle for donors to elude transparency.
Meanwhile, Corkery adds FACT to a long list of nondisclosing nonprofits at which he holds, or has held, a key position, often treasurer, and which often have overlapping slates of directors or officers. For instance, at two other groups where Corkery is treasurer, the Judicial Education Project and Catholic Voices, a close family ally by the name of Dan Casey is president and director, respectively. Casey is also the secretary of JCN. At the Sudan Relief Fund, Corkery is president, Casey is treasurer, and Ann Corkery, Neil’s wife, is a director.
Ann Corkery is also president of the Wellspring Committee, from which JCN receives substantial funding, including more than $6.6 million in 2014; Kathleen Corkery, the couple’s daughter, is on Wellspring’s board of directors, and its secretary-treasurer is Casey’s son. Neil Corkery draws salaries from several of the groups where he’s an office; Ann is paid by Wellspring. (Venn diagram in the works.)
Many of the groups list the same Georgetown address as their office, with different suite numbers. In reality, the address is that of a UPS store, and the suite numbers are post boxes. FACT’s listed address, in downtown Washington, D.C., has no markings; it appears to be an address that is cited by more than one organization without actually being physically used by any of them, with a receptionist who answers the phone with the names of various groups depending on which line is called.