Much has already been written about the dangers that a Supreme Court with even one or two Donald Trump-appointed justices would pose to all our rights and liberties. Trump’s latest list of 10 more possible nominees makes that even clearer. In making his announcement last Friday, Trump proclaimed he was using the late Justice Antonin Scalia as a model for his picks, delighting the far Right. A quick look at these potential nominees’ records shows that they would in fact swing the court far to the right, maybe even further than Justice Scalia, on issues like the environment, voting rights, money in politics, consumer rights, gun violence, LGBT and reproductive rights and more. For the sake of all our rights and liberties, Trump cannot be given the opportunity to nominate Supreme Court justices.
Most of the attention so far has focused on Trump’s naming of Sen. Mike Lee as a potential Supreme Court nominee. Among his many other radical positions, Lee has denounced Supreme Court decisions upholding marriage equality and a woman’s right to choose, and has claimed that Social Security, Medicare, the Affordable Care Act, minimum wage and child labor laws, and many more are unconstitutional. Although Lee has indicated he is satisfied with his current job, at least for now, the prospect of Lee on the court has excited the far Right.
The lesser-known candidates on Trump’s list are similarly alarming. Florida Supreme Court Justice Charles Canady, who as a member of the House helped lead the fight to impeach President Clinton in the Senate, has been dubbed one of the Florida Court’s “Scalia-Thomas duo” because of far-right dissents he and one other conservative have written. These included one dissent that would have invalidated state restrictions on soliciting campaign contributions by state judges, and another that would have reversed a decision protecting vulnerable seniors from mandatory arbitration rules by nursing homes.
Another new Trump candidate, Neil Gorsuch of the 10th Circuit Court of Appeals, recently argued that the Supreme Court’s Chevron decision, under which courts defer to environmental and other agency interpretations of ambiguous laws and which even Justice Scalia had supported, is unconstitutional and should be overruled. Tim Tymkovich, another 10th Circuit judge on Trump’s new list, argued in a dissent that a federal regulation banning the carrying and storing of guns on U.S. Postal Service property should be partially struck down as unconstitutional.
The records of other state supreme court judges on Trump’s list are also disturbing. Georgia’s Keith Blackwell wrote in one case that homeowners injured by a plant’s release of hydrogen sulfide gas could not bring a class action against the plant, even though several lower courts said that they could. Iowa’s Edward Mansfield argued in one dissent that a fired employee should not be able to claim retaliatory discharge when she was fired by an assisted living facility for complaining about a supervisor forging state-mandated training documents. And Michigan’s Robert Young campaigned for re-election as a Tea Party candidate, appearing before Tea Party groups and securing their endorsements. His judicial record has been criticized as “partisan, wildly activist, rabidly pro-insurance, and anti-consumer.” For example, in one case he dissented from a decision that restored the basic rule, which he himself had helped strike down in an earlier case, that allows auto accident victims to sue for pain and suffering. And Young wrote one opinion upholding a requirement mandating photo ID at the polls, despite another judge’s contention that “history will judge us harshly” for the decision.
Perhaps the best summary of Trump’s new list was offered by Carrie Severino of the right-wing Judicial Crisis Network. Trump “continues to take unprecedented steps,” she proclaimed, to show that he would nominate people “like Scalia, Thomas, and Alito” to the Supreme Court. Severino and Trump are clearly hoping that this will shore up Trump’s support on the far Right. In fact, it has already helped secure Trump’s endorsement by former rival and right-wing Sen. Ted Cruz. But for all other Americans, the prospect of Trump nominees to the Supreme Court is truly frightening. This November, voters need to ensure that Donald Trump does not become President Trump.
According to news reports, Donald Trump is set to release today more names of individuals whom he would consider nominating to the Supreme Court if elected, a key part of his strategy to win over the Religious Right and the conservative establishment.
The new list includes Republican Sen. Mike Lee of Utah, who, as Peter noted earlier this year, is not only a staunch social conservative but also believes that large parts of the federal social safety net are unconstitutional:
Lee dismisses Supreme Court rulings upholding a women’s right to abortion . He called the court’s marriage equality ruling a “breathtaking presumption of power.” People For the American Way noted in a 2010 report that Lee “has denounced as ‘domestic enemies’ those who disagree with his radically limited view” of the Constitution.
Here are a few things that Sen. Mike Lee believes are unconstitutional for the federal government to be engaged in:
Lee also has some ideas about how he’d like to change the Constitution. We wrote when Lee was running for Senate in the Tea Party wave of 2010:
He wants to eliminate capital gains taxes and make the current tax system more regressive – more reliant on lower income taxpayers – and says his favorite approach to taxation would actually be to repeal the 16th amendment altogether, strip the federal government of the power to tax income, and leave it to the states to determine how they would tax their own citizens to pay for the limited federal government that would be left.
He’s a constitutional lawyer who’d like to make lots of changes to the Constitution: he has said he supports repeal of the 17th Amendment, which calls for popular election of U S Senators; he wants to "clarify" the 14th Amendment through legislation to deny citizenship to children born in the U.S. to parents who are not citizens or legal residents; he wants to amend the Constitution to require a balanced federal budget and to impose congressional term limits.
Other names on Trump’s expanded list are also sure to please those who are hoping to radically reshape American law.
The Trump campaign’s statement boasts that one potential pick, Michigan Chief Justice Robert Young, is part of a court majority that has “embraced originalism and led what one scholar described as a ‘textualism revolution.’” The article in question notes that much of the Michigan majority’s philosophy draws on the arguments of the late Justice Antonin Scalia (while differing with Scalia in some ways).
In 2007, Young wrote a majority opinion upholding Michigan’s voter ID law, writing that it was a “reasonable, nondiscriminatory restriction designed to preserve the purity of elections and to prevent abuses of the electoral franchise."
The new list also includes Charles Canady, a Florida Supreme Court justice who served four terms as a Republican in the U.S. House of Representatives in the 1990s. In the House, Canady was the first to introduce the so-called ban on “partial-birth” abortion, a term that had been newly coined by anti-choice activists to stir up opposition to a specific abortion procedure and prompt a legal challenge to undermine Roe v. Wade.
Also on Trump’s list is Timothy Tymkovich, the chief judge of the 10th Circuit Court of Appeals, who wrote that court’s opinion in favor of Hobby Lobby’s attempt to cite religious objections to deny its employees health insurance coverage for contraception. That case later made it to the Supreme Court, resulting in a dramatic reinterpretation of the idea of religious liberty in America.
Trump’s new Supreme Court list is, like his original list released in May, clearly aimed at pacifying social conservatives who want assurance that his federal judges will uphold their policy priorities and by conservative legal groups intent on remaking American law.
Yesterday, Massachusetts senator and progressive hero Elizabeth Warren joined PFAW’s Michael Keegan and Marge Baker on a member telebriefing to discuss GOP senators’ unprecedented obstruction of judicial nominations at all levels, including their refusal to give fair consideration to President Obama’s Supreme Court nominee.
Sen. Warren noted on the call that Senate Republicans are now “setting new records for obstruction.” She suggested that they “might want to pull a copy of the Constitution out and take a look,” since the document is “crystal clear” about the Senate’s responsibility to confirm or reject the judges the president nominates. Instead, Warren said, GOP senators are trying to hold the Supreme Court seat open for a President Trump so that he can nominate judges who will bend the laws to suit their interests and the interests of their powerful friends.
Sen. Warren encouraged PFAW members and supporters to ask their senators why they won’t do their jobs and to keep up the pressure. “People For the American Way has done a fantastic job of putting pressure on Senate Republicans to give these judges timely consideration and an up-or-down vote,” she said. “This is a tough fight, but you don't get what you don't fight for.”
Marge Baker reviewed the work that PFAW is doing to make sure Republicans are held accountable at the ballot box on Election Day, including on-the-ground organizing targeting senators who have refused to do their jobs and PFAW’s massive Latinos Vote! campaign, designed to make sure Latino voters are ready to help deliver a progressive victory in November.
You can listen to a recording of the call here:
At a Values Voter Summit panel this weekend, top conservative legal groups promised that if Hillary Clinton becomes president, they will pressure GOP senators to obstruct her judicial nominees to the greatest extent possible, including attempting to prevent her from replacing the late Justice Antonin Scalia on the Supreme Court.
Carrie Severino of the Judicial Crisis Network, Phillip Jauregui of the Judicial Action Group, and David Christensen and Mandi Ancalle of the Family Research Council discussed what they would urge the president and the Senate to do in the first 100 days of the next presidency. In the case of a Clinton presidency and a Republican-controlled Senate, they promised maximum obstruction of judicial nominees.
Severino, who once called Judge Merrick Garland “the best scenario we could hope for” in an Obama Supreme Court nominee and said that “of those the president could nominate, we could do a lot worse” than Garland, predictably changed her tune once Obama actually did nominate Garland to replace Scalia on the Supreme Court. At the Values Voter Summit, Severino insisted that senators would “effectively nullify their oath to uphold the Constitution” by voting to confirm Garland.
“Say you’re in a state where there’s no chance on who’s going to win on the president’s side, it’s so important to remember how significant these senatorial races are, because the senators also had an oath to the Constitution,” she said. “They have to uphold and defend the Constitution. That means, when it comes to a vote for a nominee, so even if it is someone who is absolutely not going to uphold the Constitution as it is written, like Merrick Garland even, even if he does come to a vote—and I suspect that if he remains the nominee into the next presidency, he probably would come up for hearings and a vote at some point—our senators simply cannot be voting for someone that would effectively nullify their oath to uphold the Constitution. So I think we have to remember to remind our senators of that.”
Severino dismissed the idea of the Republican Senate confirming Garland in a lame duck session if Clinton wins the election, saying that if Clinton becomes president and renominates Garland or picks someone “more radical” for the court, GOP senators could stall proceedings and “maybe we'll have eight justices for awhile.” When asked how long she thought it would be realistic for a GOP senate to block a Clinton nominee to the court, she said, “I think the court could really function as long as it needed to with eight justices.”
She said that the “best case scenario” under a Clinton presidency would be if Clinton worked with Republicans in the Senate to pick a nominee who “did actually have a record of upholding the Constitution”; it’s unclear who she thinks such a nominee could be, since she previously called Garland the “best scenario” for a Democratic Supreme Court nominee.
Severino’s message that the Senate should obstruct just about any Hillary Clinton nominee contradicts the claims made by her group and others that they are merely blocking President Obama’s Supreme Court nominee because the decision on who to appoint to the Supreme Court should be left to the next president. (In the words of a Judicial Crisis Network ad: “This isn’t about Republicans or Democrats. It’s about your voice. You choose the next president, the next president chooses the next justice.”)
The Judicial Action Group’s Jauregui impressed upon the activists in the room that they would also have to be prepared to “fight vigorously” on nominations to the lower federal courts under the next president, including closely monitoring a President Trump’s nominations. He praised the effort of Texas Sens. John Cornyn and Ted Cruz to prevent President Obama’s filling of judicial vacancies in their home state by refusing to turn in “blue slips” giving the go-ahead for hearings on nominees, hinting at an obstruction strategy conservative groups might urge GOP senators to use under a Clinton presidency.
Jauregui urged the current Republican Senate to vow now to keep the current rules barring filibusters of lower-court judicial nominees if they stay in power, no matter who becomes president, saying it would be “foolish to say the best” to do otherwise.
Severino agreed that it would be “just as well” to see the judicial filibuster abolished for good after Senate Democrats invoked the so-called “nuclear option” in the face of entrenched GOP obstruction in 2013. She said that eliminating the filibuster on judicial nominees would probably help conservatives in the long run.
“If you’re not using a weapon, you might as well not have it anyway,” she said. “So now I say, move on, I think we’re living in a world, unfortunately, a post-nuclear world where 51 votes is all you need for a nominee, and that in the long term may actually help in terms of getting some of these constitutionally sound judges on the court.”
It’s well known that the Senate GOP has been stalling President Obama’s Supreme Court nomination of Merrick Garland for months in the hope that Donald Trump will win the presidential election and eventually fill the vacant Supreme Court seat. This dynamic is playing out in the lower federal courts as well, as Senate Republicans stall confirmation proceedings in an apparent effort to leave as many vacancies as possible for a potential President Trump to fill.
People for the American Way’s Paul Gordon has crunched the numbers and reports in a memo today that by stalling district and appeals court nominations, Senate Republicans are leaving far more lower court vacancies at the end of President Obama’s term in office than Democrats did at the end of President Bush’s.
Gordon reports that there are 87 current circuit and district vacancies in the federal courts today, more than double the number that there were at the beginning of the year. Contrast that with the number of vacancies during the final two years of Bush’s presidency:
Gordon notes that these vacancies do not exist because of a lack of nominees:
Now, in September of 2016, Republicans have an opportunity and a responsibility to fill dozens of vacancies. In addition to Merrick Garland, there are 29 circuit and district court nominees still bottled up in the Judiciary Committee. Only six of them have even had hearings, let alone a committee vote; two of the nominees (both from Pennsylvania) had their committee hearings last year, but Grassley still has not brought them up for a vote.
In addition, there are 20 circuit and district court nominees who have been vetted and approved by Judiciary Committee and who could — and should — have confirmation votes as soon as the Senate returns to Washington. More than a third of these have been pending on the floor for more than six months, including four who advanced from committee back in 2015.
The fact that the Senate GOP is deliberately slow-walking President Obama’s nominees in the final year of his term in office is an open secret. A top anti-abortion lobbyist said this summer that Senate Judiciary Committee Chairman Chuck Grassley and Senate Majority Leader Mitch McConnell have “moved with very deliberate speed on those nominations and it's safe to predict that there will be quite a number of vacant seats on the federal courts, including that Supreme Court vacancy, when the election rolls around.”
"There certainly would be a lot more Obama-nominated federal judges if the Senate had remained in Democrat hands," he added.
A prominent anti-abortion lobbyist acknowledged this weekend that Sen. Chuck Grassley of Iowa, the chairman of the Senate Judiciary Committee, is deliberately slow-walking President Obama's federal judicial nominees at all levels in order to keep seats on the courts open for the next president to fill.
Douglas Johnson, the legislative director of the National Right to Life Committee, said on Saturday at his group's convention in Virginia that "the left is quite unhappy with the number of nominations that have not come to a vote in the Senate." This, he said approvingly, is because Grassley and Senate Majority Leader Mitch McConnell have "moved with very deliberate speed on those nominations and it's safe to predict that there will be quite a number of vacant seats on the federal courts, including that Supreme Court vacancy, when the election rolls around."
"There certainly would be a lot more Obama-nominated federal judges if the Senate had remained in Democrat hands," he said.
Grassley has denied that he is slow-walking federal judicial nominations, despite ample evidence to the contrary, telling The Des Moines Register in April that he is simply following the practice of Democrats and Republicans alike.
Johnson particularly praised Grassley and McConnell for blockading the nomination of Judge Merrick Garland to fill the Supreme Court seat of the late Justice Antonin Scalia.
After Scalia died, he said, "the Senate majority leader reached out to senators all across the country and the world and indicated that what they had to do is take a hard line that this seat was not going to be filled by Barack Obama in the last year of his presidency, that who fills this seat was going to be determined by the person selected to be president by the American people in November. And they agreed to that."
McConnell, he said, "knew what had to be done."
"This made a difference," he said. "If this had been a Democrat Senate, possibly even been a Republican Senate under different leadership, that seat would have been long since filled."
He added that he was disappointed that the Senate's obstruction of the Garland nomination hadn't stopped a victory for abortion rights in Whole Woman's Health v. Hellerstedt, but noted that it "has been decisive on some other important matters."
James Bopp, the general counsel of the National Right to Life Committee, who has been the brains behind the dismantling of campaign finance reforms and a driving force in the effort to chip away at abortion rights with incremental legal victories, urged abortion rights opponents to vote for Donald Trump last week, saying that Hillary Clinton as president would be “100 percent evil.”
Speaking to a small group at the National Right to Life Committee’s convention outside of Washington, D.C., on Thursday, Bopp said that the vacancy on the Supreme Court and possible upcoming vacancies give conservatives and abortion rights opponents a “really big stake” in the presidential election.
In politics, he said, “You have two choices. You have to compare the choices. You don’t examine just one and say, ‘Well, I don’t like that so I’m just not going to vote for it.’”
“I think there’s only one conclusion you can come to” in the presidential race, he said, saying that “as flawed as people may think the Republican candidate is,” Clinton “will be 100 percent evil. She will never make a correct decision on anything.”
The four moderate justices on the current Supreme Court, he said, display “unthinking, reflexive voting based on policy results,” which he called “chilling.”
“Five, six, seven of these liberal judges voting in lockstep, mindlessly voting in lockstep to impose every liberal policy agenda that they can think of is what we have at stake” in the election, he said.
Citing an article in The Atlantic by law professor Erwin Chemerinsky, Bopp warned, “These people have crazy, nutty ideas and they’re going to use their bloc to do it.”
On abortion, he warned, a more liberal court could rewrite the Roe v. Wade decision on gender discrimination grounds and “what that would mean is that every limitation, every restriction, every condition on abortions will be illegal. Every one. All of them.”
The anti-abortion movement is regrouping after the Supreme Court struck down unnecessary regulations on Texas abortion clinics in Whole Woman’s Health v. Hellerstedt. Bopp acknowledged this, saying that the standard for new anti-abortion laws is “What will [Justice Anthony] Kennedy accept post the Texas abortion case?”
He suggested that anti-abortion legislators and lawyers could turn their attention to 20-week abortion bans, “dismemberment abortion” bans or restrictions such as ultrasound requirements that Kennedy’s previous rulings have indicated that he might accept.
What Kennedy will do, he said, “is really based on the individual circumstances that would be presented in the future,” noting that the circumstances of the Texas case were “somewhat extreme” in the number of clinics that shut down after the law was passed, although he said the clinic shutdowns were merely correlated with, not caused by, the Texas law.
Kelly Shackelford, president of the Religious Right legal group First Liberty (formerly Liberty Institute), was among the conservative religious leaders who met with Donald Trump in New York last month and, like many others, seems to have resigned himself to supporting Trump’s presidential candidacy on the assumption that Trump would hand over the process of picking Supreme Court justices to movement conservatives.
Shackelford said as much in an interview with Jerry Newcombe last week, explaining that while he wasn’t endorsing Trump, it’s “very conceivable” that, if elected, Trump would pick a more conservative Supreme Court than even Mitt Romney would have because he’s “going to sort of pass this off” to conservative groups like the Federalist Society and the Heritage Foundation.
Trump mentioned both groups in response to a question from Shackelford at the New York event, also promising that his judicial nominees would be “100 percent” against abortion rights.
“Look, I haven’t endorsed anybody for president, I’m not telling people who to vote for, but I do think people need to think through some of these things,” Shackelford told Newcombe. “I’m not saying this would happen, but it’s very conceivable that Donald Trump, who is certainly not considered a right-wing conservative, it’s very, very possible that a Donald Trump as president would appoint a more conservative Supreme Court than, for instance, Mitt Romney would ever think about. Because Mitt Romney would appoint people more moderate like himself, you know, moderate conservative. Donald Trump is going to sort of pass this off to like the Federalist Society and the Heritage Foundation, which are very conservative.”
“So it’s one of those things where sometimes you can look at the candidate and go, ‘Well, he’s not as conservative as I am,’” he said, “but really what you’re asking is what are they going to do as president, what their positions are going to be. And it could be that if your issue is the courts, you know, Trump could be very different than you would normally assume because he’s delegating this away from himself and the results might be more appetizing to people who are very conservative.”
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.