judicial nominations

Another Phony Supreme Court 'Precedent'

A couple of days after Justice Antonin Scalia’s death, Heritage Foundation fellow Hans von Spakovsky declared that the Supreme Court still had an “obligation” to count the votes Scalia had cast in preliminary conferences on pending cases, even though those votes aren’t always final.

He was particularly interested in Friedrichs, an important labor case that some observers believe will, without Scalia’s vote, end up in a tie that will preserve a lower court decision favorable to unions.

It turns out that von Spakovsky mentioned this idea again in a National Review article last week, even presenting evidence of a “precedent” for counting the votes of deceased justices:

One final note on the terrible tragedy of Justice Scalia’s untimely death: what to do about the pending cases in which the Supreme Court justices already had cast their internal vote on how they would rule on the case. Everyone is assuming that Justice Scalia’s votes have to be discarded because the decisions have not yet been publicly released. But there is precedent for Chief Justice John Roberts to give effect to those votes.

In D. A. Schulte, Inc. v. Gangi (1946), the dissenting opinion by Justice Felix Frankfurter, and joined by Justice Harold Burton, specifically says that the “late Chief Justice [Harlan Stone] participated in the hearing and disposition of this case and had joined in this dissent.” Stone died on April 22, 1946; the date of the Gangi decision is April 29, 1946. Likewise, Justice Joseph Story noted the agreement of the late Chief Justice John Marshall in his dissent in New York v. Miln (1837), writing, “I have the consolation to know that I had the entire concurrence, upon the same grounds, of that great constitutional jurist, the late Mr. Chief Justice Marshall.”

Von Spakovsky’s “precedent” for counting the preliminary vote of a deceased justice is two cases in which the authors of dissents mentioned that a late colleague had been on their side of an issue. In the first, the dissenters mention the views of the late Chief Justice Harlan Stone, but do not appear to count him as an official joiner of the dissent. In the second, the dissenters cite the views of Chief Justice John Marshall, who had died more than a year before the opinion was issued and had already been replaced by Chief Justice Roger Taney — again, apparently citing his approval to make a point rather than as an official vote in the case.

In neither case was the vote of the deceased justice being counted. And in neither case would the vote of the deceased have changed the outcome of the case, as von Spakovsky seems to hope Scalia’s vote would in the Friedrichs case.

It’s almost as if conservatives are pulling Supreme Court “precedents” out of thin air.

GOP Refuses To Meet With Obama On SCOTUS, But Obama's The 'Divisive' One!

Update: Grassley and McConnell have at last accepted Obama’s invitation to discuss potential nominees at the White House, although they are still refusing to hold hearings or a vote on any potential nominee. 

As Senate Republicans close ranks in an attempt to prevent President Obama from nominating the next Supreme Court justice, Republicans on the Senate Judiciary Committee have declared that they will refuse to hold a hearing on Obama’s nominee, no matter who it is. On top of that, the Des Moines Register reports that the committee’s chairman, Sen. Chuck Grassley of Iowa, hasn’t even responded to an invitation from the White House to discuss possible nominees.

The Republicans’ unprecedented Supreme Court blockade exposes the lie that has undergirded eight years of GOP obstructionism: that President Obama is “the most divisive” president in history and that he refuses to reach across the aisle.

Senate Majority Leader Mitch McConnell, who just an hour after the news broke of the death of Justice Antonin Scalia, made it clear that he didn’t intend to consider any Obama nominee to fill Scalia’s seat, has called Obama the “most divisive” president he’s worked with. Marco Rubio, the Florida Republican senator and presidential candidate, has said that Obama is the most “divisive” political figure in modern history. The claim has been repeated over and over again in talk radio and the halls of Congress. Texas Republican senator and presidential candidate Ted Cruz complained after Obama’s final State of the Union address last month that the president “lectures us on civility yet has been one of the most divisive presidents in American history."

As Paul Waldman wrote in “The Week” last month, the primary example of the “divisive” Obama that Republicans point to is that he “crammed ObamaCare down our throats” — a strange way to explain a bill that became law through the legislative process.

Waldman noted:

Let's just remind ourselves of how Republicans have treated Obama over his seven years in office, with a few of the greatest hits. You can start right on the day of his inauguration, when congressional Republicans gathered for a dinner at which they decided that rather than seek areas of cooperation with the new president, they would employ a strategy of maximum confrontation and obstruction in order to deny him any legislative victories.

They followed through on this plan. As Mitch McConnell explained proudly in 2010, "Our top political priority over the next two years should be to deny Barack Obama a second term."

The Affordable Care Act itself was designed as something of a political compromise solution, containing elements of plans previously championed by Republicans. But Republicans in Congress closed ranks against the reform, eventually shutting down the government in protest of the law.

Senate Republicans’ attitude toward Obama’s judicial nominees has followed a similar pattern,even before the current Supreme Court showdown. As we noted last week, right-wing pressure groups and their allies in Congress, including Cruz and Sen. Mike Lee, were trying to shut down the federal judicial confirmation process in Obama’s final year before Scalia’s death.

If Grassley is really now refusing to even meet with Obama to discuss potential Supreme Court nominees, the Right should finally retire its talking point that it’s Obama who refuses to reach across the aisle.

Heritage Fellow: Scalia's Vote Should Still Count From Beyond The Grave

Hans von Spakovsky, a senior fellow at the conservative Heritage Foundation and a former George W. Bush administration Justice Department official, said last week that the Supreme Court should count the late Justice Antonin Scalia’s votes on pending cases in which the justices have already cast preliminary votes.

Von Spakovsky mentioned in particular Friedrichs v. California Teachers Association, a case that would deal a blow to unions and in which Scalia was likely on the anti-union side.

In an interview with American Family Radio’s Sandy Rios on February 15, von Spakovsky said that Chief Justice John Roberts has “an absolute obligation” to count Scalia’s vote in Friedrichs and other cases in which justices have already held conferences.

“After oral arguments before the court, the justices leave the courtroom and they go to a conference room in the Supreme Court building and they take a vote,” he said. “So that’s the point at which they know how a case is going to be decided and the chief justice then makes assignments of who will write the majority opinion and etc. I think the chief justice has an absolute obligation to give credit to Scalia’s vote in those cases that have already been decided, even if he didn’t write his opinion yet, because they know how he would have voted.”

“So on particular cases like the Friedrichs case … that case was argued on January 11, so they know how Justice Scalia cast his vote in that case and I think the chief justice should give credit to it,” he said.

Von Spakovsky is correct that justices cast votes in a private conference after hearing cases … but those votes sometimes change as the justices work on their opinions. Shortly after Scalia’s death, veteran Supreme Court attorney Roy Englert told ABC that the “vote of a deceased justices does not count.”

We can’t help but point out the irony that von Spakovsky has been one of the primary drivers of the myth that massive voter fraud requires suppressive laws that make it harder to vote. One of the voter-fraud specters he has raised is that of people casting votes on behalf of people who have died.

No, Biden Didn't Call For Rejecting All Supreme Court Nominees In Election Years

Within hours of the death of Supreme Court Justice Antonin Scalia earlier this month, conservatives retroactively invented a bogus “tradition” that Supreme Court justices are never confirmed in presidential election years. That claim is demonstrably false, but conservatives are sticking with it in an attempt to justify their efforts to keep President Obama from naming the next Supreme Court justice.

Today, the pro-obstruction crowd thought it got a boost when a short clip of now-Vice President Joe Biden was unearthed from the depths of the C-SPAN archives. In the clip of the 1992 floor speech, Biden, who was then chairman of the Senate Judiciary Committee during what turned out to be the last year of George H.W. Bush’s presidency, urges the president to, in the event of a Supreme Court vacancy, “not name a nominee until after the November election is completed.”

Hypocrisy!

Well, not quite.

As ThinkProgress’ Igor Volsky and Biden himself have pointed out, when taken in context, that wasn't Biden's point. The then-senator made the remarks in the context of a long speech bemoaning the increased politicization of the confirmation process and, in Biden’s words, urging the White House and the Senate to “work together to overcome partisan differences to ensure the Court functions as the Founding Fathers intended.”

Secondly, even if you were to claim that Biden were offering some new rule for blocking Supreme Court nominations, that rule wouldn't cover the current situation.

Look at the timestamp on the video. Biden was speaking on June 25, 1992 about filling a vacancy if a justice “resigns tomorrow or within the next several weeks resigns at the end of the summer.” By June 25, the presidential primaries were over and Bill Clinton was the presumptive Democratic nominee. That’s a very different point in an election year than we are in today, when the vacancy opened so very early on in the presidential nominating contests and with the risk of a Supreme Court seat remaining open for more than a year, severely disrupting two consecutive terms.

If you go back to read the transcript of Biden’s remarks, he repeatedly states that he is concerned about vacancies that occur “in the summer or fall of a presidential election year” — not vacancies that occur as early in the year as Justice Scalia’s did. The last four Supreme Court confirmations took an average of 75 days from nomination to confirmation, meaning that if President Obama nominates anyone in the next month, they could be confirmed well before the period that Biden was supposedly arguing should be off-limits for Supreme Court nominations.

There is still no “tradition” of shutting down judicial nominations for the entire last year of a presidency or of leaving the Supreme Court short-handed for an entire year.

And, as Volsky notes, while Biden didn’t face a Supreme Court vacancy in 1992, his Judiciary Committee did continue approving Circuit Court nominees well through the summer and fall of the election year, a stark contrast to current Republican threats to shut down the judicial nominations process entirely this year:

 

 

PFAW

No, Biden Didn't Call For Rejecting All Supreme Court Nominees In Election Years

Within hours of the death of Supreme Court Justice Antonin Scalia earlier this month, conservatives retroactively invented a bogus “tradition” that Supreme Court justices are never confirmed in presidential election years. That claim is demonstrably false, but conservatives are sticking with it in an attempt to justify their efforts to keep President Obama from naming the next Supreme Court justice.

Today, the pro-obstruction crowd thought it got a boost when a short clip of now-Vice President Joe Biden was unearthed from the depths of the C-SPAN archives. In the clip of the 1992 floor speech, Biden, who was then chairman of the Senate Judiciary Committee during what turned out to be the last year of George H.W. Bush’s presidency, urges the president to, in the event of a Supreme Court vacancy, “not name a nominee until after the November election is completed.”

Hypocrisy!

Well, not quite.

As ThinkProgress’ Igor Volsky and Biden himself have pointed out, when taken in context, that wasn't Biden's point. The then-senator made the remarks in the context of a long speech bemoaning the increased politicization of the confirmation process and, in Biden’s words, urging the White House and the Senate to “work together to overcome partisan differences to ensure the Court functions as the Founding Fathers intended.”

Secondly, even if you were to claim that Biden was offering some new rule for blocking Supreme Court nominations, that rule wouldn't cover the current situation.

Look at the timestamp on the video. Biden was speaking on June 25, 1992 about filling a vacancy if a justice “resigns tomorrow or within the next several weeks resigns at the end of the summer.” By June 25, the presidential primaries were over and Bill Clinton was the presumptive Democratic nominee. That’s a very different point in an election year than we are in today, when the vacancy opened so very early on in the presidential nominating contests and with the risk of a Supreme Court seat remaining open for more than a year, severely disrupting two consecutive terms.

If you go back to read the transcript of Biden’s remarks, he repeatedly states that he is concerned about vacancies that occur “in the summer or fall of a presidential election year” — not vacancies that occur as early in the year as Justice Scalia’s did. The last four Supreme Court confirmations took an average of 75 days from nomination to confirmation, meaning that if President Obama nominates anyone in the next month, they could be confirmed well before the period that Biden was supposedly arguing should be off-limits for Supreme Court nominations.

There is still no “tradition” of shutting down judicial nominations for the entire last year of a presidency or of leaving the Supreme Court short-handed for an entire year.

And, as Volsky notes, while Biden didn’t face a Supreme Court vacancy in 1992, his Judiciary Committee did continue approving Circuit Court nominees well through the summer and fall of the election year, a stark contrast to current Republican threats to shut down the judicial nominations process entirely this year:

 

 

New Poll Shows Obstructionist Stance on Supreme Court Vacancy is Hurting Toomey and Portman With Voters

Note to senators in tough reelection battles: putting your Washington DC party bosses over the Constitution by standing in the way of filling the vacancy on the Supreme Court is not only the wrong thing to do for our country, it’s also making voters less likely to support you.

New Public Policy Polling surveys released today show that large majorities of voters in Pennsylvania and Ohio, where Senators Pat Toomey and Rob Portman are running for reelection, want the vacancy created by Justice Antonin Scalia’s death to be filled this year. According to the polling memo:

  • Strong majorities of voters – 58/35 in Ohio and 57/40 in Pennsylvania – think that the vacant seat on the Supreme Court should be filled this year. What’s particularly noteworthy about those numbers – and concerning for Portman and Toomey – is how emphatic the support for approving a replacement is among independent voters. In Ohio they think a new Justice should be named this year 70/24 and in Pennsylvania it’s 60/37.
  • …Voters are particularly angry about Senators taking the stance that they’re not going to approve anyone before even knowing who President Obama decides to put forward. By a 76/20 spread in Pennsylvania and a 74/18 one in Ohio, voters think the Senate should wait to see who is nominated to the Court before deciding whether or not to confirm that person. Toomey and Portman are out of line even with their own party base on that one – Republicans in Pennsylvania think 67/27 and in Ohio think 63/32 that the Senate should at least give President Obama’s choice a chance before deciding whether or not to confirm them. [emphasis added]

Perhaps most notable for the senators, more than half of voters (52 percent in both states) say they would be less likely to vote for Toomey or Portman if they “refused to confirm a replacement for Justice Scalia this year no matter who it was.” Among independents, the numbers were even higher.

Senators Toomey and Portman would be wise to take heed of their constituents, and of the Constitution, and stop refusing to even consider any Supreme Court nominee, regardless of his or her credentials. Any nominee must be treated fairly and honestly. The Supreme Court is far too important to be held hostage to the overtly political obstruction of GOP senators.

PFAW

On SCOTUS Obstruction, Republicans Are Citing A 'Precedent' That Doesn't Exist

The following is an excerpt from a post on the People For blog on the Republican attempt to block any nominee President Obama chooses to fill the Supreme Court vacancy left by the passing of Justice Antonin Scalia:

Just as the Constitution and principle are not on the GOP’s side, neither are the facts. For instance, Ohio Sen. Rob Portman has said that “it's been nearly 80 years since any president was permitted to immediately fill a vacancy that arose in a presidential election year.” His constituents could be forgiven for inferring that the situation we now face is common, and that nomination and confirmation of Scalia’s replacement this year would go against historical norms.

However, the current situation is anything but common. The fortunate reality is that it is extremely rare for a Supreme Court justice to die in office. In fact, since 1950, this is only the fourth time a sitting justice has passed away, and this is the only time it has happened in a presidential election year:

1. Chief Justice Fred Vinson – died in 1953

2. Justice Robert Jackson – died in 1954

3. Chief Justice William Rehnquist – died in 2005

4. Justice Antonin Scalia – died in 2016

Thankfully, this is an extremely unusual situation. Republicans cannot cite precedent for an incumbent president under these circumstances to abstain from carrying out his constitutional duties and force Americans to wait a year or more for the next president to fill a sudden, unexpected vacancy on the nation’s highest court, simply because it was a presidential election year when a justice died.

Justices who retire often time their announcements in time for a replacement to be nominated and confirmed by the beginning of the next Supreme Court term. That is why most of the current justices were able to take their seats in time for the traditional First Monday in October, ensuring a full complement of nine justices. As an alternative way to protect the institution, Sandra Day O’Connor agreed to remain on the Court until her replacement could be confirmed. So even though Justice Alito was confirmed in January 2006, the middle of the term, the nation’s highest court was not forced to operate short-staffed. In ways such as these, retiring justices have sought to protect the integrity of the Court by ensuring it be able to operate at full capacity.

Unfortunately, despite Justice Scalia’s devotion to the Court he served on for three decades, he did not have the opportunity to protect it from having to operate short-staffed. And yet many Republicans are vowing to keep the Court hobbled for as long as possible.

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

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

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

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

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

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

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

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

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

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

Heritage Demands SCOTUS Blockade As Part of Scorched-Earth Obstructionism

As the New York Times explained earlier this week, the Senate GOP’s promises to block anyone who President Obama nominates to replace the late Justice Antonin Scalia on the Supreme Court amounts to a ratcheting up of a campaign of obstruction on nominees that has lasted throughout Obama’s time in office.

This is in part thanks to the lobbying of conservative groups who, even before Scalia’s death, were urging Senate Republicans to block nearly every Obama nominee in his final year in office.

A particularly influential force behind this effort has been the Heritage Foundation, the conservative think tank that has in recent years become a bludgeoning arm for the Tea Party as it pressures GOP lawmakers away from allowing the government to function in any sort of bipartisan manner.

Heritage, under the leadership of former Sen. Jim DeMint, and its more explicitly political arm Heritage Action, headed up by Michael Needham, have worked to pressure the GOP to be an immovable agent of obstruction in a divided government. One House Republican accused Heritage Action last year of insisting on “an unachievable standard” of conservativism that actually “hurts” the party’s goals by preventing reasonable action and compromise.

Heritage Action’s version of conservativism is so far out of the mainstream that even Senate Republicans score an average of just 60 percent on its legislative scorecard. The two senators who have perfect scores from group are Sen. Mike Lee and Sen. Ted Cruz, who has been boasting of his bridge-burning obstructionism as he runs for the Republican presidential nomination. (Sen. Marco Rubio, a supposedly mainstream rival to Cruz, ranks an impressive fourth in Heritage’s ranking of senators.)

Heritage Action’s single-minded focus on attacking the Affordable Care Act infamously helped lead to the 2013 government shutdown. One fellow ACA opponent slammed Heritage and Cruz for the ordeal, writing that the “entire affair was bungled by a few narcissistic conservative groups and senators” and ended up actually hurting the cause they were claiming to support.

Heritage and Heritage Action have applied the same scorched-earth tactics to Obama judicial nominations, urging the GOP to shut down all executive branch and judicial confirmations even before the death of Scalia.

Politico reported in January that in advance of a GOP retreat in Baltimore, Heritage Action circulated a document among lawmakers declaring, “Given the Obama administration’s disregard for Congress’s role in our constitutional system of government, the Senate should refuse to confirm the president’s nominees unless those nominees are directly related to our national security.” This echoed previous calls from Heritage’s favorite senators, Lee and Cruz, to completely shut down the judicial confirmation process.

Later that month, Heritage Foundation’s Hans von Spakovsky and American Family Association governmental affairs director Sandy Rios agreed that Republicans should oppose all future Obama judicial nominees because, in von Spakovsky’s words, they would all share Obama’s “radical left-wing views.”

On January 26, Heritage Action announced that it would “continue to oppose all judicial nominees and reserve the right to key vote against any and all judicial nominees retroactively,” meaning that it would count support for any Obama judicial nominee against members of Congress in its scorecards — even, apparently, in votes that had already taken place. Senate Minority Leader Harry Reid specifically called out Heritage Action for pressuring GOP senators against action on judicial nominees.

Unsurprisingly, Heritage Action and the Heritage Foundation are now pressuring GOP senators to hold Justice Scalia’s seat open until the next president takes office. Heritage Foundation president Jim DeMint, who, as a Republican senator, built a reputation as a “warrior for purity” within the party, wrote on Tuesday that the Senate “can and should withhold its consent” from any Obama nominee.

In another interview with Rios on Monday, von Spakovsky offered a barely veiled threat to Republican senators contemplating considering an Obama nominee.

“I think they understand that if they were to confirm a liberal Obama nominee this year, it would be an absolute election disaster,” he said. “I mean, I’ve already heard from folks in the conservative community saying that if any Republican senator works to confirm an Obama nominee, they’re going to be a massive target of people trying to get them out of office because they’ll be so upset about that.”

Now that a Supreme Court seat is at stake, the conservative movement is converging on this line of thinking, inventing bogus new “traditions” in an attempt to justify keeping a Supreme Court seat open for more than a year.

There are plenty of conservative groups that are promising an all-out campaign to keep an Obama Supreme Court nominee off the bench — the Times says that the American Center for Law and Justice, the right-wing legal group founded by Pat Robertson, started opposition research on potential nominees “moments” after Scalia’s death was announced. But Heritage’s commitment to keeping any Obama nominees off the federal bench speaks to the real motivations behind the effort to stop any Supreme Court nominee: turning the Congress into a force of obstruction, not of governing.

GOP vs. the Integrity of the American Judicial System

Intentionally crippling the Supreme Court for two consecutive terms would be the height of irresponsibility.
PFAW Foundation

Surprise! Tony Perkins Lies About Obama's Response To Scalia's Death

On Saturday, about an hour after officials confirmed the death of Supreme Court Justice Antonin Scalia, Senate Majority Leader Mitch McConnell announced that he would try to block the confirmation of any person President Obama nominated to replace Scalia on the Supreme Court. One White House aide told Politico that although the administration wasn’t surprised by McConnell’s commitment to obstruction, the speed with which he vowed a fight after Scalia’s death was a “real shocker.”

Some of McConnell’s fellow senators and conservative pressure groups — including the Family Research Council — quickly echoed his call to obstruction.

Later on Saturday evening, President Obama delivered short remarks commemorating Scalia and responding directly to McConnell’s threat by saying that he planned to nominate a new Supreme Court justice in “due time” and called on the Senate “to fulfill its responsibility to give that person a fair hearing and a timely vote.”

But in the world of Tony Perkins, president of the Family Research Council, what really happened was that President Obama politicized the justice’s death, forcing McConnell and his fellow senators to “fire back.”

In an email to supporters yesterday, Perkins accused Obama of violating a nonexistent “80-year tradition of leaving an election-year vacancy to the next president,” prompting noble GOP senators to contradict him:

There are dozens of high-profile cases pending before the Court -- including the key conservative battles over the Texas abortion law and the conscience rights of Little Sisters of the Poor. While the Court copes with Scalia's absence, the White House seems intent on nominating his replacement, despite the 80-year tradition of leaving an election-year vacancy to the next president. Invoking the Constitution he has selective use for, President Obama told reporters it was his "duty" to submit a name to the U.S. Senate for confirmation. Of course, the greatest insult to Justice Scalia's memory would be to appoint a replacement in the mold of Obama, who's spent seven years trampling on the Constitution on the way to his own personal policy goals.

Almost immediately, Senate leaders fired back, insisting that voters were less than nine months away from selecting a new president -- and, following eight decades of tradition, Scalia's replacement should be left to that person. Senator Chuck Grassley (R-Iowa) joined Majority Leader Mitch McConnell (R-Ky.), Senator John McCain (R-Ariz.) and others in insisting there would be no confirmation "The fact of the matter is that it's been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year," Mr. Grassley said. "Given the huge divide in the country, and the fact that this president, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court justice."

Alberto Gonzales: No 'Standard Practice' Of Blocking Justices In Election Year

Alberto Gonzales, who served as White House counsel and attorney general under George W. Bush, is one of the handful of Republicans who has broken ranks to say that President Obama does indeed have the right to fill the Supreme Court vacancy left by the death of Justice Antonin Scalia.

In an interview with Newsmax TV yesterday, Gonzales repeated his argument and skewered the claim from Sen. Chuck Grassley , chairman of the Senate Judiciary Committee, that it is the Senate’s “standard practice” not to confirm Supreme Court justices during a presidential election year.

“If there is such a standard practice within the Senate, it’s one that I’m not aware of and I was not made aware of when I was White House counsel or as attorney general,” Gonzales told Newsmax’s Ed Berliner. “Again, not having served in the Senate, I can’t speak with authority as to what is standard practice, but certainly if that is the standard practice, that was never communicated to the Bush White House or the Bush administration.”

Mark Levin: 'God Save Us From What Obama Must Do' To The Supreme Court

Conservative talk radio host Mark Levin joined the chorus of conservative activists urging Senate Republicans to block any nominee President Obama puts forward to replace Justice Antonin Scalia, telling Stephen Bannon of “Breitbart News Daily” over the weekend that people criticizing this strategy of obstructionism just don’t “care about the nation” the way conservatives do.

“It is a terrible day when a nation loses a man like this, and God save us from what Obama must do,” Levin said. “And we must insist that the Republican Senate must stand up and give him no quarter, they must stand up and block anyone or anything Obama tries to do.”

“I don’t think we should ram through an Obama appointee in a Republican Senate, for God’s sakes,” he said. “I mean, I’m sitting here thinking about it, you’re going to hear people say, ‘Well, this is unprecedented if we do this, and the Republicans…’ These aren’t people who really care about the nation the way I do or you do or our audiences do. No, they like the direction of the country, they just don’t think we’re going fast enough or hard enough radical left.”

Levin also issued a warning to Senate Republicans who might consider voting on an Obama nominee, calling them a “Fifth Column” and warning that the Supreme Court fight is “a litmus test for the survival of the Republican Party.”

“If a Republican majority in the United States Senate confirms a nominee by the most radical president certainly in modern history, if ever, who has stated his goal of fundamentally transforming America,” he said, “if a Republican majority confirms one of his nominees, at least in my mind, it’s over.”

Jay Sekulow: 'Advice And Consent' Means Telling Obama 'Don't Put Up A Nominee'

Jay Sekulow, the chief counsel of the conservative legal group American Center for Law and Justice, offered a creative interpretation of the Senate’s constitutional duty to provide “advice and consent” on presidential nominations today, saying that the “advice” the Senate should be offering President Obama is not to appoint anybody to the Supreme Court.

Jay Sekulow appeared with Pat Robertson, ACLJ’s founder, on “The 700 Club” this morning to discuss the death of Justice Antonin Scalia and the resulting fight over his replacement on the court.

Robertson, sounding somewhat bewildered, noted that one potential Obama nominee for the vacancy, Judge Sri Srinivasan, “is an Indian, he actually was born in India,” concluding that “they shouldn’t rush somebody on” the court until the next president takes office.

Sekulow agreed that Senate Republicans should “just say no” to any Obama nominee.

“The Republicans need to say no,” he insisted. “It’s that simple. Just say no. That’s the way the rules are structured. 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.’”

As well as his questionable claim that Obama is a “lame duck” president months before an election has been held for his replacement, Sekulow falsely claimed that there “hasn’t been a confirmation when there’s been an appointment during an election year since 1880.”

Conservative Groups Circle The Wagons On SCOTUS Obstruction

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

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

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

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

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

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

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

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

So the American people should get to decide.

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

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

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

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

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

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

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

As did the American Family Association’s Buddy Smith:

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

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

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

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

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

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

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

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

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

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

Operation Rescue: 'We Are Just One Obama Appointee Away From A Totalitarian Government'

The radical anti-abortion group Operation Rescue has joined the many conservative groups urging the Senate to hold the late Justice Antonin Scalia’s Supreme Court seat open for more than a year in order to prevent President Obama from naming his replacement.

In a press release yesterday, Operation Rescue’s Troy Newman — a leader of Sen. Ted Cruz’s “pro-life” coalition — declared that with the Supreme Court battle, America must choose “fascism of freedom” because the country is “just one Obama appointee away from totalitarian government.”

The group also raised suspicions about the justice’s death, saying that “disturbing conflicting reports have surfaced” regarding the circumstances of his death.

Scalia's death has posed an opportunity for Pres. Barack Obama to appoint a replacement for Scalia in this critical election year that would dramatically reshape the Court in a way that would continue protect abortion while threatening precious American freedoms.

Operation Rescue is urging the Senate to allow the next president to make that appointment.

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

Now, disturbing conflicting reports have surfaced concerning Justice Scalia's sudden and unexpected death with no autopsy planned.

Operation Rescue calls for a full inquiry into Scalia's death and respectfully requests that an autopsy be performed in order to put to rest unanswered questions regarding his passing.

Conservative Legal Activist Admits GOP SCOTUS Obstruction Is All About Politics

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

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

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

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

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

PFAW Praises Nomination of Abdul Kallon, Will Be First African American from Alabama on 11th Circuit

People For the American Way today praised President Obama’s nomination of Abdul Kallon to serve on the 11th Circuit Court of Appeals. When confirmed, Judge Kallon, who currently serves on the United States District Court for the Northern District of Alabama, will be the first African American judge from his state to serve at the federal appellate level.

Judge Kallon is a well-qualified nominee who received broad bipartisan support when he was confirmed to his current seat. The Senate should move quickly to process his nomination,” said Marge Baker, Executive Vice President at People For the American Way. “In addition to being an historic nominee, Judge Kallon’s confirmation will fill a judicial emergency that’s been empty since 2013. This nomination is an excellent opportunity for the Senate to show that it can move past partisanship and gridlock in order to keep our courts working.

In 2009, Judge Kallon was unanimously confirmed by the Senate as a District Court judge and had the support of both his home state senators. At his confirmation hearing, Senator Jeff Sessions, then ranking member on the Judiciary Committee, praised Kallon’s “impressive legal credentials” and spoke of the Alabama legal community’s high respect for his “integrity and judgment and legal ability.

People For the American Way is a progressive advocacy organization founded to fight right-wing extremism and defend constitutional values including free expression, religious liberty, equal justice under the law, and the right to meaningfully participate in our democracy.

Sandy Rios: 'White People Everywhere' Terrified Of Criticizing People Of Color

Earlier today, Hans von Spakovsky of the Heritage Foundation spoke with Sandy Rios, a radio host and governmental affairs director with the American Family Association, about the nomination of Wilhelmina Wright to a federal district court seat in Minnesota.

Von Spakovsky alleged that Senate Republicans have refused to put up a fight against Wright, who is scheduled for a confirmation vote later today, even though, according to von Spakovsky, she is an extremist who hates the U.S. Constitution and thinks America is a racist country.

Rios claimed that Republicans aren’t blocking Wright’s nomination because they are “afraid” to oppose a black nominee. In fact, Rios said that “white people everywhere” are simply terrified of passing judgment on any person of color, which of course explains why no one on the Right has ever criticized President Obama.

“I am saying that a lot of this is coming from this fear now of white politicians, white spokesmen, white senators, white people everywhere, afraid to make any kind of a decision or judgment on someone who has a pigment in their skin, no matter what, because they will be accused of racism no matter what,” Rios said.

She went on to argue that Senate Republicans should “put a halt to confirmations” of judicial nominees altogether “because that has nothing to do with color.” Von Spakovsky agreed, saying that Republicans should oppose any nominee for the federal bench because they will all share President Obama’s “radical left-wing views.”

PFAW Applauds White House Announcement of Judicial Nominees

President Obama today nominated two judges to serve on the Seventh Circuit Courts of Appeals. The nominees, from Wisconsin and Indiana, will fill seats that have been vacant since January 2010 and February 2015 respectively.

Marge Baker, Executive Vice President at People For the American Way, issued the following statement:

“President Obama should be applauded for moving forward with the nomination process in the face of years of Republican obstruction. Americans are sick and tired of gridlock in Washington. Our elected officials were sent here to do a job, and it’s time for them to put aside petty political disagreements and actually do it. In this case that means moving expeditiously to hold hearings and then votes on the individuals nominated by President Obama.

“Since 2009, Republicans have used every tool at their disposal to slow walk and delay the confirmation of qualified judicial nominees. That obstruction hasn’t always made the headlines, but it has had a profound impact on the lives of ordinary Americans who deserve to have their day in court. Vacancies in our judicial branch slow the administration of justice and harm individual people and small businesses who can’t wait years to have their cases resolved. President Obama’s decision to nominate these individuals is an important step forward. Now it’s up to Senate to respond in kind.”

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