judicial nominations

Harming Justice: Effects of an Eight-Justice Supreme Court

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:

  • A 4-4 divided opinion means that major national questions go unresolved, as an equally divided Court cannot set a binding, uniform, nationwide rule of law. Different federal legal rules can apply to different people and businesses right across state lines. The Court has already handed down a number of 4-4 divided opinions; as of June 1, 2016, there are still 25 cases awaiting decision by the Court.
    • For instance, the Supreme Court has already divided 4-4 in Hawkins v. Community Bank of Raymore. Now one set of rules about whether spouses are required to guarantee loans applies in some jurisdictions, and another set in others.
    • The Justices themselves have repeatedly made clear that providing a uniform rule of law is one of the most important functions of the Supreme Court. From Chief Justice Roberts to Justice Ruth Bader Ginsburg, the members of the Court have consistently affirmed this principle.
    • Some of the biggest, most important questions are frequently the most divisive and have the greatest potential to divide the Justices 4-4, especially at a time when the number of 5-4 splits is at an historic high.
  • In order to avoid a 4-4 split, the Supreme Court has already had to make unusual moves, punting on important legal questions because there is not a fully-staffed bench that can resolve these questions. Thus, even when the Court doesn’t split 4-4, it may still be unable to truly resolve the important questions before it, thus leaving legal uncertainty in place.
    • Rather than issue an opinion on the merits, the Supreme Court issued an unsigned order in Zubik v. Burwell, a case involving the accommodation granted to religious nonprofits that object to the ACA’s contraceptive mandate. The order vacated the decisions of the lower courts and remanded the issue  back to the lower courts to try to achieve a compromise,  thus leaving the central question unresolved, thousands of women around the country in limbo, and a strong possibility that the Court will have to revisit the question again once it is fully staffed. Given the time it takes for issues to work their way through the federal courts, it could be years before the issue is resolved.
  • The Supreme Court may also be less inclined to tackle tough questions in the first place if its members think they cannot avoid dividing 4-4 on a question. The Court already has a small docket, only hearing approximately 70-80 cases a Term; the pace of grants of review in cases the Court has decided to hear for next Term is well below the average for this point in the year.

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.

Resources

Material Harm to Our Justice System: The Consequences of an Eight-Member Supreme Court

Everything You Need to Know About an Eight Justice Supreme Court

The Originalist Case for the Senate to Do Its Job

The Supreme Court’s Role in Our Constitutional Scheme: Why Eight is Not Enough

Justice Waits for a Nine Member Supreme Court

Ruth Bader Ginsburg: 8 Is Not a Good Number

Supreme Court Punts in Zubik Case – and Shows Again the Crucial Importance of a Fully-Staffed Supreme Court

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Steve Deace: Conservatives Using Supreme Court As 'Fig Leaf' As They 'Sell Their Souls' To Trump

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.”

Trump Releases Supreme Court List, Including Conservative Dream Justices

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.

Diane Sykes

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.

Steven Colloton

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.

Ted Nugent Fantasizes About Hillary Clinton Being Shot; GOP Still Wants His Org To Vet Supreme Court Nominees

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!"

Earlier this year, Nugent engaged in a week-long anti-Semitic meltdown, including posting a Facebook meme alleging that Jewish politicians and activists are “behind gun control.”

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.

It’s Official: The Senate GOP Wants Donald Trump To Pick The Next Supreme Court Justice

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.

GOP Taking Supreme Court Orders From Radical Gun Group

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 evidenceWhile these attacks on Garland’s record have been widely discreditedseveral 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?

AUL: Stall Supreme Court Nominee To 'Roll Back Roe v. Wade'

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”:

Dear Friend,

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.

Sincerely,

Clarke Forsythe,
Acting President & Senior Counsel
Americans United for Life

Grassley Promises Anti-Choice Activists He'll Hold The Line Against Garland

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.

Leader Of Anti-Garland Group Once Demanded Judges Have A 'Biblical View Of Justice'

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.

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

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

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

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

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

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

 

UPDATE: Politico reports:

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

 

If Republicans Get Their Wish On The Supreme Court, What Would Trump Or Cruz Do?

By Miranda Blue, Elliot Mincberg and Brian Tashman

Republicans in the Senate, pushed by outside conservative interest groups, are promising to block President Obama’s Supreme Court nominee, Merrick Garland, and arguing that the next president should fill the current vacancy, in the hope that a Republican president will name a conservative ideologue to the bench.

Even if the Senate does confirm Garland, the next president will likely be charged with nominating at least one person to the Supreme Court, and possibly more. Since it looks like either Donald Trump or Ted Cruz will win the Republican presidential nomination, looking at both men’s past statements gives us an idea of the kind of justices that Republicans are hoping for.

Trump and Cruz have both signaled that they would appease their base by nominating justices who would shift the court far to the right. Cruz has lamented that some justices nominated by Republican presidents have strayed from the party line on issues like abortion rights and has vowed that he would appoint “rock-ribbed conservatives” who have a “long paper trail” to demonstrate their “conservative” bona fides.

Trump, dogged by worries among movement conservatives that he would betray them when it comes to Supreme Court nominations, has promised to pick any Supreme Court nominees off a list he develops in partnership with the conservative Heritage Foundation and the Federalist Society.

Both candidates have indicated that they would nominate judges who would vote to overturn Roe v. Wade and Obergefell v. Hodges, the landmark abortion rights and marriage equality decisions. Trump, although he appears not to understand the central legal issue of Roe, has said that the decision “can be changed” through the right judicial nominations since “you know, things are put there and are passed but they can be unpassed with time.” Cruz has warned that unless a true conservative like him picks the next justice, the Supreme Court will soon be “mandating unlimited abortion.” Trump has said that Obergefell was wrongly decided, while Cruz has called the decision “fundamentally illegitimate” and said it can be ignored by the president.

Cruz has made the future of the court a centerpiece of his campaign, while Trump may not actually understand how the Supreme Court works. But both have made clear that as president they would work to shift the court even farther to the right on the issues important to social conservatives and to the corporate Right.

What would a court shaped by a President Trump or a President Cruz look like? Looking at a few of the possible judicial nominees whose names have been dropped by candidates or who have been recommended by the Heritage Foundation, we can get an idea of the kind of ideological conservatives whom Republicans are hoping to put on the bench.

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.

Diane Sykes

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.

Steven Colloton

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 now 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.

Mike Lee

Sen. Mike Lee of Utah is Cruz’s closest ally in the Senate and Cruz has said that Lee “would look good” on the Supreme Court. Lee also made the Heritage Foundation’s shortlist of potential Supreme Court justices.

Lee is a fervent “tenther,” someone who believes the 10th Amendment to the Constitution radically restricts the authority of the federal government. As Jeffrey Rosen wrote in the New York Times Magazine in 2010, “Lee offered glimpses of a truly radical vision of the U.S. Constitution, one that sees the document as divinely inspired and views much of what the federal government currently does as unconstitutional.” Among the areas that Lee has suggested it is unconstitutional for the federal government to be engaged in:

  • Social Security,
  • Medicare and Medicaid,
  • child labor laws,
  • food safety,
  • disaster relief,
  • food stamps,
  • the Violence Against Women Act,
  • and, of course, the Affordable Care Act.

Lee has criticized the Supreme Court’s rulings on abortion rights and marriage equality, calling Roe v. Wade an “unconscionable decision” that “defied the spirit and the letter” of the Constitution and responding to Obergefell by introducing a measure that would protect anti-LGBT discrimination.

Ted Cruz

While we don’t expect Cruz to name himself to the Supreme Court, as recently as December Trump was receptive to the idea of extending an olive branch to his main Republican presidential rival in the form of a Supreme Court nomination.

A Justice Cruz would certainly align with Trump’s stated priorities of reversing the Obergefell marriage equality decision and making sure Roe v. Wade is “unpassed.” Cruz, who served as the solicitor general of Texas before his election to the U.S. Senate, has gone so far as to call for the U.S. government to defy Obergefell and to claim that Congress could ban abortion without overturning Roe. Before running for the Senate, Cruz proposed an unconstitutional plan to nullify the Affordable Care Act; last year, he said that a Supreme Court ruling rejecting a clearly meritless challenge to the ACA was the “lawless” work of “rogue justices.” Cruz is known for having politicized the Texas solicitor general’s office, filing dozens of Supreme Court amicus briefs defending conservative positions on hot-button issues such as gun rights and abortion. On the campaign trail, he frequently boasts of his work as an attorney fighting church-state separation.

If Cruz were to become a Supreme Court justice, however, we wonder if he would stick with his idea of subjecting justices to retention 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.

Heritage List Gives Glimpse Of Far-Right Justices Sought By Trump And Cruz

One of the conservative establishment’s greatest fears about a Donald Trump presidency has been that he wouldn’t pick movement ideologues to sit on the Supreme Court. Trump attempted to put that concern to rest last week when he announced that he was working with the conservative behemoth the Heritage Foundation to shape a list of 10 possible Supreme Court picks from whom he would choose nominees if he were to become president. (Whether he would actually keep that promise, however, is an open question.)

Meanwhile, Trump’s main GOP presidential rival, Sen. Ted Cruz of Texas, has promised to make nominating ultra-conservative justices a “priority” of his presidency. He has even made a point of criticizing past Republican presidents for appointing insufficiently conservative jurists.

Trump hasn’t released his list of candidates, but today the Heritage Foundation published a “non-exclusive” list of eight people that it said “illustrates the kind of highly qualified, principled individuals the new president should consider” for the high court — and who, it’s safe to assume, represent the kind of judges the conservative movement would pressure Trump and Cruz to pick for the federal courts.

Two of Heritage’s picks, federal appeals court judges William Pryor and Diane Sykes, have been mentioned repeatedly by Trump on the campaign trail. The name of another, Sen. Mike Lee of Utah, has been brought up by Cruz, who even picked up the Utah senator’s endorsement.

In a profile of Sykes last month, ThinkProgress’ Ian Millhiser wrote:

… Sykes, who currently sits on the Seventh Circuit, backed a voter ID law . She also wrote a decision expanding religious objectors’ ability to limit their employees’ access to birth control coverage that SCOTUSBlog’s Lyle Denniston described as “ the broadest ruling so far by a federal appeals court barring enforcement of the birth-control mandate in the new federal health care law.”

Millhiser noted that Sykes also ruled “that anti-gay groups have a constitutional right to continue receiving government subsidies even if they engage in discrimination,” another troubling indication that she could support conservative groups’ attempts to justify discrimination.

Pryor, a former Alabama attorney general, also has a history of right-wing activism. Pryor has called Roe v. Wade the “ worst abomination in the history of constitutional law” and said that it created “ a constitutional right to murder an unborn child.” 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 the federal government “should not be in the business of public education nor the control of street crime .” Like Sykes, Pryor has upheld a voter ID law.

Lee, a Tea Party favorite who has been Cruz’s strongest ally in the Senate, has a legal philosophy that might be even more troubling, dismissing large swaths of the federal government’s work as unconstitutional. As Peter summarized recently:

Here are a few things that Sen. Mike Lee believes are unconstitutional for the federal government to be engaged in:

Peter noted that Lee “dismisses Supreme Court rulings upholding a woman’s right to abortion” and has “called the court’s marriage equality ruling a ‘breathtaking presumption of power.’”

Also on Heritage’s list is Brett Kavanaugh, a George W. Bush appointee to the Court of Appeals for the D.C. Circuit, where he is a colleague of President Obama’s Supreme Court nominee, Merrick Garland. Kavanaugh, who before his career as a judge worked on the notorious “Starr Report” about President Clinton, is just one example of Bush’s effort to put ideologically motivated conservatives on the federal bench.

Kavanaugh’s rulings on the D.C. Circuit include striking down important EPA air pollution rules in an opinion that one columnist called “60 pages of legal sophistry, procedural hair-splitting and scientific conjecture.” PFAW summarized the issue at hand:

Last summer, two Bush-nominated judges on the D.C. Circuit issued a much-criticized ruling in EME Homer City Generation, striking down important new EPA rules on air pollution that crosses state lines. In 2011, the EPA issued new regulations to limit the levels of sulfur dioxide and nitrous oxide emitted by coal-fired power plants and crossing state lines. Based on the administrative record and its expertise on environmental health, the agency concluded that the new rules would prevent 34,000 premature deaths, 15,000 heart attacks, and 400,000 cases of asthma. As if that weren’t important enough, the rules would also save $280 billion a year in healthcare costs.

In 2011, Kavanaugh dissented from a ruling that found ExxonMobil was not immune from being sued by Indonesians who said they had been “beaten, burned, shocked with cattle prods, kicked, and subjected to other forms of brutality and cruelty" by the company’s security forces. Dissenting from a ruling upholding the Affordable Care Act the same year, Kavanaugh suggested that a president who thinks the ACA is unconstitutional could simply decline to enforce it.

Also on Heritage’s list are Paul Clement, who served as solicitor general in the Bush administration and is just 49 years old, and federal appeals court judges Steven Colloton and Raymond Gruender. Another Heritage suggestion is Texas Supreme Court Justice Don Willett, who was nominated by then-Gov. Rick Perry after helping Bush run his faith-based initiatives in Texas and in the White House.

Chuck Grassley On Judicial Confirmations: 'Let's Do Our Jobs.' (But That Was 2005)

While discussing the confirmation of judges, Sen. Chuck Grassley, R-Iowa, had a message for his fellow senators: “Let’s do our jobs.” But that was 2005.

Eleven years ago, with a Republican in the White House, Grassley was emphatic that the Senate act quickly on the president’s judicial nominations, telling colleagues that slowing down the confirmation process was “like being a bully on the schoolyard playground.”

According to Grassley in 2005, for the Senate to do its job, George W. Bush’s nominees would have to receive up-or-down votes. Today, apparently, doing his job as chairman of the Judiciary Committee does not even include holding hearings on President Obama’s nominee to the Supreme Court, Merrick Garland.

One wonders what 2005 Chuck Grassley would say to his 2016 self. In April of that year, during an appearance on MSNBC’s “Hardball,” Grassley told host Chris Matthews that “every nominee should have an opportunity to have an up-or-down vote.”

That same month in a statement on his website titled “Talking Judges to Death,” the Iowa senator wrote, “It’s time to make sure all judges receive a fair vote on the Senate floor.”

Grassley continued to make his case during a May speech on the Senate floor, telling his colleagues, “It’s high time to make sure all judges receive a fair up-or-down vote on the Senate floor.”

In the same speech, he complained that he and his colleagues were being “denied an opportunity to carry out their constitutional responsibility,” telling the Senate, “That is simply not right. The Constitution demands an up-or-down vote. Fairness demands an up-or-down vote.”

Grassley charged that Democrats wanted “to grind the judicial process to a halt for appellate court nominees so they can fill the bench with individuals who have been rubberstamped by leftwing extreme groups.”

In 2005 Democrats opposed a small number of nominees based on their extreme ideologies. In contrast, Grassley and today’s Republicans have made it clear that they will oppose anyone nominated by Obama, no matter their qualifications or ideology, essentially seeking to undo the 2012 presidential election.

Today the only rationale for Grassley’s own intransigence is fear of the far right and their demand that Republicans obstruct the president’s Supreme Court appointment.

Grassley’s advocacy for the Senate doing its job did not stop in the spring of 2005. In September of that year, after President Bush appointed John Roberts to the Supreme Court, Grassley cited Alexander Hamilton in claiming that “the purpose of our activities here of confirming people for the courts” was “to make sure that people who were not qualified did not get on the courts. In other words, only qualified people get appointed to the courts and that political hacks do not get appointed to the courts.”

He noted that “maybe there is some historian around who will say Grassley has it all wrong.”

In that same speech he stated that the president “had a mandate to appoint whom he wanted appointed, as long as they were not political hacks and as long as they were qualified” and that the president had “primacy in the appointments to the Supreme Court.”

In January 2006, with the appointment of Samuel Alito to the Supreme Court, Grassley put out a press release that once again cited Alexander Hamilton:

The Constitution provides that the President nominates a Supreme Court Justice, and the Senate provides its advice and consent, with an up or down vote.  In Federalist 66, Alexander Hamilton wrote, “it will be the office of the President to nominate, and, with the advice and consent of the Senate, to appoint.  There will, of course, be no exertion of choice on the part of the Senate.  They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose – they can only ratify or reject the choice he may have made.”

Citations of Hamilton, calls for the Senate to do its job, discussions of “constitutional responsibility” are now a faded memory.

If Chuck Grassley did recall his words from that year, perhaps he would remember his statement that “in my town meetings across Iowa, I hear from people all the time, why aren’t the judges being confirmed?” He went on to claim, “I hear from Iowans all the time that they want to see these nominees treated in a fair manner, and they want to see an up-or-down vote.”

Home for the Senate’s Easter recess, he is now facing these questions from constituents like Randy Waagmeester, who told his senator at a town hall, “It’s not fair for this man not to get a hearing.”

Another of Grassley’s constituents, Glenda Schrick, told her senator, “There’s nothing in the U.S. Constitution that says we can’t have a hearing and then vote yea or nay, so that we don’t constantly have it thrown at us as Republicans that all we say is ‘no.’”

However, these interactions will be few for the Iowa senator. According to the Des Moines Register “only three of his 19 planned events are publicly announced town hall meetings — and they’re happening in the three most heavily Republican counties in the state in terms of voter registration.”

Instead of running from these challenges, Grassley should simply follow his own admonition from more than a decade ago, come back to Washington, tell his Republican colleagues “let’s do our jobs” and get to work confirming Merrick Garland to the Supreme Court.

The Judicial Crisis Network Conveniently Forgets Its Own History

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

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

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

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

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

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

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

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

Rafael Cruz: 'One More Liberal Justice' Could Allow A Dictator To Turn Guns On Americans

Rafael Cruz, the father and top campaign surrogate of Sen. Ted Cruz, warned in a radio interview today that if “one more liberal justice” is confirmed to the Supreme Court, “we will lose our Second Amendment right to keep and bear arms,” which could lead to a dictator turning guns against the American people.

“One more liberal justice with that way of thinking and we will lose our Second Amendment right to keep and bear arms,” Cruz said on Breitbart’s SiriusXM program. “And think back in history: Every dictator that has taken the guns away from the population has used them against the population.”

“It is imperative that we elect as president someone that you can be certain that will only nominate to the Supreme Court justices that are committed to following the Constitution and the rule of law, not to legislate from the bench,” he said. “Otherwise, if we lose the court, it may take a whole generation to recover it and I don’t think we have the time.”

Cruz issued a similar warning in November, before the death of Supreme Court Justice Antonin Scalia, saying that “praise God there are 300 million guns in American in the hands of private citizens.”

Cruz also repeated his claim that the American public education system is being used by communists to indoctrinate children into “an anti-Christian worldview.”

“What has happened in America is that we have believed this lie of separation of church and state, which is not in the Constitution, is not in the Declaration,” Cruz said. “The total opposite is true. One of the very first Bibles printed in America was printed under the auspices of Congress to be the principal textbook in high schools, primary schools and universities.”

Cruz frequently uses the story about Congress printing Bibles to be used as textbooks in his attempts to refute the idea of church-state separation. The story, unsurprisingly, is a myth promoted by Cruz’s friend, the political operative David Barton, who is running a super PAC backing Ted Cruz’s candidacy.

He went on to say that this all changed when the Humanist Manifesto, an “ominous document,” was signed in 1933, leading to “immorality and chaos and secular humanism.” He then repeated his claim that John Dewey, the public education reformer and signer of the Humanist Manifesto “was a member of the American Communist Party.” (Dewey was in fact an “avowed anti-Communist.”)

All of this, he said, has led to the Common Core educational standards “brainwashing” public school students with an “anti-Christian worldview in an attempt to secularize America.”

“So, since 1933, those concepts of secular humanism have been immersed in our public school system,” he said, “and now, with Common Core, they have been elevated to a new level. And Common Core is not really about standards, it’s about brainwashing our kids with secular humanism, with an anti-Christian worldview, with what’s called situational ethics … And so what has happened is that kids are being brainwashed with this worldview that is an anti-Christian worldview in an attempt to secularize America.”

Ron Johnson Is Taking His SCOTUS Talking Points Straight From Right-Wing Groups

Sen. Ron Johnson of Wisconsin is one of the Republican senators who is under considerable pressure in his home state to break from his party leadership and consider the nomination of Judge Merrick Garland to the Supreme Court.

So far, Johnson has toed the party line and says that he supports blocking any nominee to the Supreme Court for the remainder of Obama’s presidency. In defending this position, he has turned to a number of stock talking points cooked up by right-wing groups seeking to keep an Obama nominee off the Supreme Court.

As soon as President Obama announced his nomination of Garland, Johnson turned to the talking point that the conservative Judicial Crisis Network has been promoting since soon after Justice Antonin Scalia’s death left a vacant seat on the Supreme Court.

Johnson’s appeal to let the American people “decide” and give them a “voice” by discounting President Obama’s entire last year in office, comes straight out of the messaging that JCN started hammering in early ads urging obstruction. In JCN’s first ad, a narrator says:

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

Of course, the people already did have a voice in choosing who would pick the next Supreme Court justice when they reelected President Obama for a second four-year term in 2012.

The New York Times reported yesterday on an event in Wisconsin at which Johnson attempted to justify the Senate GOP’s obstructionism by implying that the Constitution’s requirement of “advice and consent” can mean the Senate advising the president not to make any judicial nomination at all:

“Yeah, I am hearing the drumbeat, ‘Do your job! Do your job!’ ” Mr. Johnson said, invoking the Democrats’ battle cry in their quest to get Judge Garland a hearing. “We’re doing our job,” Mr. Johnson declared, to shouts of “yes.”

“Our job as a coequal branch in the nomination process is advise and consent,” he said. “Well, President Obama — surprise — didn’t heed our advice. So now we are doing the second part of that advice and consent: We’re withholding our consent. Completely appropriate.”

This is a talking point that Jay Sekulow of the American Center for Law and Justice, a longtime right-wing player in judicial fights, pioneered very soon after the death of Justice Scalia, when he told televangelist Pat Robertson, “The Senate has a role in this, the Constitution says ‘advice and consent.’ The advice here is, ‘Don’t put up a nominee when you’re only going to be the president, you’re a lame duck and you’re only going to be the president for 11 months.’”

We don’t think that refusing to even consider a Supreme Court nominee is what the founders had in mind when they gave the Senate the power of “advice and consent," which is why the GOP leadership’s decision to have the Senate do absolutely nothing in response to a Supreme Court nomination is unprecedented.

According to the Times article, Johnson has also taken to saying that Garland is “hostile” to the Second Amendment:

“Judge Merrick is hostile to your Second Amendment right to keep and bear arms,” Mr. Johnson said in Pewaukee, using the judge’s first name. “So I am doing my job to protect the Second Amendment rights of Wisconsinites.”

Johnson’s use of the word “hostile” is no accident. The phrase “hostile to the Second Amendment” is what right-wing groups have settled on to describe Garland’s utterly benign record on gun rights. That’s the exact phrase that the National Rifle Association has been using in its effort to stir up opposition to Garland’s nomination. The “hostile” term seems to have come from an opposition research package put together by the Judicial Crisis Network, which in turn seems to have borrowed the phrase from a 2007 article in the NRA’s magazine.

We outlined last week why the Second Amendment “hostility” argument is bunk.

Senate Republicans seem to have ceded not only their governing, but the very words that come out of their mouths, to right-wing obstructionist groups.

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

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

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

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

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

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

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

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

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

Cruz Gun Adviser: Obama Nominated Garland To 'Ruin The Second Amendment And Destroy This Country'

A top gun-rights adviser to Sen. Ted Cruz’s presidential campaign claimed this weekend that President Obama’s nomination of Judge Merrick Garland to the Supreme Court is “his last-ditch effort” to “ruin the Second Amendment and destroy this country.”

Tim Macy, the chairman of the radical gun group Gun Owners of America and co-chair of Cruz’s “Second Amendment Coalition,” discussed the Supreme Court nomination in an interview Sunday with Mark Walters on “Armed America Radio.”

Macy said that Obama has “run up against the wall every time he’s tried” to “destroy the country” with gun restrictions, but that the Supreme Court vacancy is “his last-ditch effort before he leaves office to ruin the Second Amendment and destroy this country with Merrick Garland as his pick.”

Macy falsely claimed that Garland “supported the D.C. gun ban” — in fact, Garland, a federal appeals court judge in Washington, D.C., voted to rehear a case involving Washington’s handgun ban, which does not indicate at all where he stood on the merits of the case. In fact, Garland voted the same way as other judges on the court including Judge A. Raymond Randolph, whom Linda Greenhouse of the New York Times once called “one of the most outspoken and agenda-driven conservatives on the entire federal bench.”

“Clearly, if Garland got back on the court, the whole Heller decision, individual right to bear arms, would be put in severe jeopardy,” Macy claimed, “and you would have to imagine it would be gotten rid of as quick as the court could get another case up before them, they’d be looking for the case to bring up.”

Macy also brought up another case that gun groups have been using to attack Garland, in which Garland joined in a ruling that held that the FBI could temporarily store background check information from gun sales for audit purposes. Macy absurdly claimed that this shows that Garland “supports the ability of a president to illegally use executive power to advance liberal causes like taking guns away from honest citizens.”

These, he said, were all reasons to pressure Senate Majority Leader Mitch McConnell so that he “keeps that nomination on hold until the president’s gone and we have a new president.”

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