Supreme Court

The GOP's Planned Sabotage of the Supreme Court

Congress set nine as the number of seats on the Supreme Court. The GOP can't just unilaterally change number that through obstruction.
PFAW

Pollster Tom Jensen Joins PFAW Telebriefing on the State of the Election

On Thursday People For the American Way hosted a member telebriefing on the current state of the 2016 election cycle to discuss the latest poll numbers and what PFAW is doing to engage in the election.

Public Policy Polling director Tom Jensen joined the call to share recent polling data on both the presidential contest and key Senate races, providing an overview of the 2016 landscape just over two weeks before the election. PFAW’s Drew Courtney, Marge Baker, and Laura Epstein outlined some of the highlights of PFAW’s work in 2016 on engaging Latino voters and making the Supreme Court a winning election issue.

You can listen to the full telebriefing here:

PFAW

SCOTUS Schedule Speaks a Thousand Words

The Supreme Court clearly can't proceed with certain cases it accepted before the current vacancy opened until the Senate fills that vacancy.
PFAW Foundation

Trump or Clinton Will Be Our President for Four Years, but the Supreme Court Justices They Pick Serve For Life

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Additional resources on the Supreme Court and the 2016 election:

 

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What Was Missing From the Debate: Even More Reasons the Supreme Court Is a Crucial Election Issue

This piece originally appeared on the Huffington Post.

In last night’s presidential debate, the candidates discussed several important issues where their choices for the Supreme Court will be critical for Americans’ rights. Whether Hillary Clinton or Donald Trump is elected will decide whether Roe v. Wade is overruled, whether the Court’s historic Obergefell decision on marriage equality is thrown out by a Trump Court, and whether Congress and state legislatures can enact common-sense laws on gun safety and money in politics.

But there are a number of other issues the Supreme Court rules on that underscore why it is crucial that a President Clinton, backed by a Democratic Senate, selects nominees to fill the up-to-four Court vacancies that are likely in the next four years. Specifically:

  • Corporations vs consumers: A Trump Supreme Court would further stack the deck against consumers and in favor of large corporations in the marketplace. Trump justices would make it even harder to bring class actions, often the only way that consumers can effectively seek justice against big corporations. A Trump Supreme Court would almost certainly reverse a recent 5-4 decision or find some other way to rule that the Affordable Care Act is unconstitutional, harming millions of Americans. And a Trump Supreme Court would likely undermine or reverse narrow rulings that have allowed consumer suits against deceptive cigarette labelling in state court and state attorney general action against big banks.
  • Workers’ rights: The current Supreme Court split 4-4 in a case where anti-labor advocates were pushing the Court to overrule an important precedent and eliminate “fair share” fees from non-union members that are crucial for unions to operate. A Trump Supreme Court would break the tie and deal a devastating blow to workers’ ability to organize and operate unions. A Trump Court could also make things even worse than the Roberts Court for workers protected by federal law. One of the judges on Trump’s list of possible Supreme Court justices even tried to rule that a woman who reported sexual harassment on the job could not take legal action when her employer fired her in apparent retaliation.
  • Protecting the environment: Although a President Trump himself is likely to do significant damage to environmental protection efforts, a Trump Supreme Court would do even more. Several important cases concerning the validity of federal rules protecting against mercury and other toxic air pollution and against harmful power plant emissions are pending right now in federal appellate court. A Trump Supreme Court would likely strike down such rules.  A Trump Supreme Court is also likely to remove wetlands almost completely from protection under the Clean Water Act and to make it easier to challenge environmental protection efforts at the federal, state, and local level.
  • Civil and voting rights: A Trump Supreme Court would almost certainly approve restrictive state voter ID and other voting laws that lower courts have found to improperly limit minority voting rights in North Carolina and elsewhere. In fact, one more right-wing justice on the Court would have allowed the discriminatory North Carolina law to take effect in this November’s election. A Trump Supreme Court would also likely approve state redistricting plans like those that have been narrowly struck down as discriminatory, and make it harder for states to undertake nonpartisan redistricting. A Trump Supreme Court could well reverse a recent 5-4 Court ruling and make it impossible to bring housing discrimination lawsuits based on the discriminatory effects of landlord and other practices.
  • Immigration:  The candidates’ discussion last night of their clear differences on immigration policy underlines the importance of who will select Supreme Court justices.  A Trump Supreme Court is likely to uphold a President Trump’s radical immigration policies, particularly if supported by a Republican Congress. Justices like Thomas, Scalia, and Alito have consistently voted to uphold restrictive laws and presidential actions on immigration and on foreign citizens even when the Court majority strikes them down. Adding more right-wing justices would tip the balance decisively in Trump’s favor. So a Trump Supreme Court would likely approve orders by a President Trump mandating mass deportations, imposing ideological litmus tests on immigrants, banning immigration by all Muslims or people from selected countries, and building a wall between the U.S. and Mexico.   

These examples and more are likely products of a Supreme Court to which a President Trump is able to nominate even one or two new justices. With three or more nominations considered likely in the next president’s first term, the consequences to all Americans would be disastrous. And in light of recent threats by Republicans like John McCain to block all Clinton nominees to the High Court, it is crucial that Americans also vote for a Democratic Senate.

PFAW

Demonstrators Send McCain Message That He Was "Too Little, Too Late" In Denouncing Trump

People For the American Way joined Planned Parenthood, ProgressNow, and other Arizona activists to send a clear message to Senator McCain: he jumped the Trump ship too little, too late.
PFAW

McCain's "Straight Talk" Exposes Real Reason for Blocking SCOTUS Nominee

McCain's been taking Arizonans for a ride on the Duplicity Express regarding his SCOTUS nominee obstruction.
PFAW

Hundreds Rally to Tell Senate Republicans #DoYourJob

This week marked the start of a second consecutive term of the Supreme Court without a full roster of nine justices. For months, Senate Republicans have refused to hold a confirmation hearing—and, in some cases, to even meet with—President Obama’s Supreme Court nominee Judge Merrick Garland, despite being considered to be perhaps the most qualified Supreme Court nominee in modern history. Members of both parties have applauded his judicious temperament, deep legal knowledge and fair-minded approach to dealing with difficult cases.

To mark the record-breaking 202 days since Garland’s nomination, PFAW and a cadre of allies assembled a crowd of more than 200 people to hold signs calling on Senate Republicans to do their job by holding a hearing and a vote. Speakers at the rally included organizational leaders, such as PFAW’s own executive vice president Marge Baker, as well as the lead plaintiff in the landmark 2015 marriage equality decision, Jim Obergefell. The bipartisan event also featured Republican voters who are fed up with the relentless obstructionism of their leaders in the Senate.  

Because of the Supreme Court vacancy, in recent months a number of critical issues have been left unresolved. Cases pertaining to immigration, affirmative action, and reproductive health have been left hamstrung by a deadlocked court, with cases being sent back down to lower courts because of the inability to break a tie. With the highest judicial body in the United States unable to resolve issues that affect millions of Americans, now more than ever people must tell Republican members of the Senate to #DoYourJob. 

PFAW

The Supreme Court Term 2016-2017: A Sabotaged Court Tries to Carry On, With Our Rights in the Balance

To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way Foundation
Date: October 3, 2016
Re: The Supreme Court Term 2016-2017: A Sabotaged Court Tries to Carry On, With Our Rights in the Balance

With the Senate simply ignoring the nomination of D.C. Circuit Judge Merrick Garland to the Supreme Court for more than half a year, our nation’s highest court begins its new term the same way it spent the second half of the last one: short one member, divided ideologically 4-4 on many issues, and unable to fully function properly.

This is not be the first time the Supreme Court has begun a term short-staffed. But it is the first time a nominee for a Supreme Court vacancy has remained pending across two terms of the Court. And this is happening because the Supreme Court’s ability to carry out its constitutionally mandated role is being deliberately compromised. Even though Justice Antonin Scalia passed away almost a full year before President Obama leaves office, Senate Republicans immediately announced that they would not consider anyone he nominated, no matter who it was, so that the seat could be filled by the next president (who they hope will be a Republican). They transformed the nation’s highest court into a political football, and they are fighting to keep the seat open for Donald Trump to fill.

In June, People For the American Way released The Supreme Court Term 2015-16: Lessons on an Extended Vacancy. In addition, with the Constitutional Accountability Center, PFAW Foundation issued a report on Harming Justice: Effects of an Eight-Justice Supreme Court (and an end-of-term supplement). These demonstrated how the 4-4 split on the Court left critically important constitutional and other legal questions unanswered. They included the constitutionality of the Obama Administration’s immigration executive actions, the legality of its accommodation to religious nonprofits with regard to contraception coverage for employees, and the continued ability of public sector unions to collect fair-share fees from non-members whose interests they are legally required to represent.

This year, more than 200 days after Judge Garland’s nomination, the Court begins its new term with the current vacancy still not filled. Likely because of the ongoing obstruction, the justices began their summer recess last June having accepted only 21 cases so far for the upcoming term, significantly fewer than normal at that point in time. Even with nine new ones accepted at the end of September, the number of cases is still lower than normal for this time. What point is there in accepting a critically important case when the Court is unlikely to be able to resolve the questions being raised?

As Justice Elena Kagan noted while speaking at Harvard Law School, “[p]resumably we're there for a reason. We're there to resolve cases that need deciding, answer hotly contested issues that need resolving, and you can't do that with a tie vote.”

Notably, one of the highest profile cases on the docket so far was accepted for review before Justice Scalia passed away. The Court at that time had no reason to shy away from the religious liberty issues raised in Trinity Lutheran Church of Columbia v. Pauley (see below). But now, even though it has been fully briefed and is ahead of many other cases in line, the Court has not yet scheduled it for oral arguments. The Court appears to recognize that it simply can’t do its job in this case as long as Senate Republicans continue to force it to operate without its congressionally mandated ninth seat.

Most of the cases accepted since Justice Scalia’s passing have been relatively low profile and not ideologically charged, concerning business and criminal law issues. But some of the cases accepted by the Court do raise important, high-profile issues, and there are others waiting in the wings that the Court may choose to hear once the Senate allows them to have their ninth justice.

Many of our rights and liberties will be on hold until the Senate allows the ninth seat on the Court to be filled. The next justice should respect our nation’s constitutional values of liberty, equality, and justice for all, as Merrick Garland’s career shows that he does. Justices that bend the law and twist logic in order to empower the powerful would constitute a major step backward in our nation’s ongoing struggle to live up to the ideals set forth in the United States Constitution. Analyzed below are some significant cases in several important issue areas that the Court has agreed to review or may review in 2016-17.

Religious Liberty

The Court already has one potentially significant religious liberty case on its docket, and it may very well grant certiorari in cases that raise other religious liberty issues.

Trinity Lutheran Church of Columbia v. Pauley: Direct State Financial Grants to Churches

As noted above, the Court agreed to hear this case before Justice Scalia’s passing but is clearly not scheduling it until they hope they will have a ninth justice. Assuming the Court has nine justices in time, this case has the potential to weaken church-state separation provisions in the U. S. Constitution and in numerous state constitutions.

Missouri has a competitive grant program for organizations to improve their playgrounds. Trinity Lutheran Church operates a religious preschool and daycare program that infuses sectarian instruction throughout the day. Trinity applied for a grant to improve the children’s playground despite the state constitution’s clear mandate for the separation of church and state. It explicitly prohibits the government from providing funds to churches, either directly or indirectly. It also specifically prohibits funding to help or sustain a religious school. So Trinity’s grant application was rejected.

Trinity, represented by the Alliance Defending Freedom, sued the state, claiming that denying it funds for its playground because it is a religious entity violates the U.S. Constitution’s Equal Protection and Free Exercise Clauses. According to the church, Missouri targeted religion for disadvantageous treatment, which can be justified only if the grant program is narrowly tailored to achieve a compelling government interest. Trinity claims there is no such compelling state interest, because (Trinity argues) the grant would be permissible under the federal Establishment Clause. Trinity also argues that the program forces adherents to choose between their religion and receiving a generally available public benefit, which denies them full and equal participation in the community and violates the Free Exercise Clause. Trinity gave no assurances to state officials that it would not use the taxpayer-funded playground for religious purposes. The Eighth Circuit rejected Trinity’s arguments.

PFAW Foundation joined an amicus brief authored by the ACLU pointing out the serious defects in Trinity’s legal argument. A fundamental principle of the First Amendment’s Establishment Clause is that states may not award direct grants to houses of worship. The Court has upheld indirect grants such as vouchers, where parents rather than the state decide whether to spend taxpayer funds on a religious or a secular school. But direct grants to houses of worship contravene the clear meaning and intent of the Establishment Clause. The Founders recognized that churches would either support themselves or not, and that religious liberty would be threatened, not enhanced, if the government could use its taxing and spending powers to favor certain religions or religion in general. In contrast, despite the Establishment Clause, Trinity and its allies would have the Court require state support of churches and other houses of worship.

In a similar case challenging state constitutional “no aid” provisions, the Court is considering whether to grant certiorari in New Mexico Association of Nonpublic Schools v. Moses. There, the state constitution states that no funds spent for educational purposes can be spent on “any sectarian, denominational or private school, college or university.” This covers all private institutions, not just religious ones. Based on that provision, the state supreme court struck down a program in which the state purchases non-religious educational material selected by public and private schools and lends them to qualified students in either public or private schools, which allows those schools to divert funds they would have otherwise used to obtain the material. The New Mexico Association of Nonpublic Schools, represented by the Becket Fund for Religious Liberty, filed a certiorari petition with the Court, not asking it to take the case immediately, but rather to hold on to it pending resolution of Trinity Lutheran Church. It asserts the New Mexico constitutional provision violates the federal Free Exercise and Equal Protection Clauses.

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission: Religion as a sword to deny other people their legal rights

The Court has not yet decided whether to hear this case involving the ability of a bakery to refuse services to a same-sex couple. Masterpiece Cakeshop is another vehicle used by the religious right to portray LGBT equality as inherently inconsistent with religious liberty. It is also an effort to expand their efforts to transform religious liberty from a shield designed to protect rights into a sword designed to strip others of their rights. The case relies on claims under the Free Exercise Clause as well as the First Amendment’s free speech provision.

The bakery is owned by Jack Phillips, who practices a version of Christianity deeply hostile to LGBT equality. When two men asked him to design and make a wedding cake for a local celebration after their planned marriage in Massachusetts (Colorado did not permit them to marry at that time), the bakery owner refused, saying his religion disapproved of their marriage and so he would not create wedding cakes for same-sex couples. However, Colorado prohibits discrimination in public accommodations on the basis of sexual orientation, and as a business open to the general public, the bakery was ordered to end its policy of discrimination.

Masterpiece argues that creating and baking a wedding cake is an expressive act signifying his approval of the marriage being celebrated. Therefore, compliance with the anti-discrimination law would be unconstitutional compelled speech he does not agree with, under the First Amendment.

The problem with this argument is that there is no indication that the cake would contain a message that the baker would be offended or repulsed by (such as a written racist, political, or religious message on the cake). The Eighth Circuit concluded that operating a public bakeshop that designs and sells wedding cakes in compliance with anti-discrimination laws does not convey a celebratory message by the baker himself. Any pro-equality message that an observer might interpret from the cake would be attributed to the couple, rather than to the baker. In addition, the court ruled that simply obeying a law does not express agreement with it.

Masterpiece also claims that enforcement of the law violates the bakery owner’s rights under the Free Exercise Clause. (There is no RFRA claim, because that is a federal law, and Colorado has no state-level equivalent.) Under the 1990 Employment Division v. Smith case (which weakened the Free Exercise Clause and led to the passage of RFRA in response), the Free Exercise Clause does not excuse a person from complying with a valid and neutral law of general applicability on the ground that it prohibits or requires conduct in violation of their religious beliefs.

The 5-4 Hobby Lobby case showed that five justices were willing to transform the concept of religious liberty into a weapon to deprive others of their legal rights. But one of those in the majority was Justice Scalia, so the Court is divided 4-4 on this fundamental issue. Last term’s Zubik v. Burwell failed to resolve the issue in the context of the Affordable Care Act’s accommodation for religious nonprofits with regard to contraception coverage; the Court essentially punted the issue back to the lower courts. But this is a question that will come up over and over again in the lower courts, until a ninth justice takes their seat and can help resolve the current impasse.

As with Trinity Lutheran Church, the bakery in this case is represented by the Alliance Defending Freedom.

LGBT Equality

Religious liberty cases like Masterpiece Cakeshop clearly implicate LGBT equality, since that community is a major target of the Far Right’s effort to redefine religious liberty. But LGBT equality issues have traditionally been raised in other contexts, and one such case may be heard by the Court this term.

Gloucester County School Board v. G.G.: Transgender equality under Title IX

This case – which the Supreme Court has not yet decided whether to take – involves a public school board’s efforts to prohibit G.G., a transgender boy, from using the boys’ bathroom at school. At issue is whether Title IX requires schools to allow transgender students to use the restrooms that are appropriate for their gender identity.

Title IX prohibits discrimination on the basis of sex in any educational program or activity receiving federal funding. So, for example, girls’ bathrooms and boys’ bathrooms must be comparable. The Department of Education’s Office of Civil Rights has interpreted this to require schools providing separate boys’ and girls’ bathrooms to generally treat transgender students consistent with their gender identity.

A district court rejected this interpretation and ruled in favor of the Virginia school district without a trial, but on appeal, a three-judge panel of the Fourth Circuit reversed the lower court and held that Title IX can be interpreted as the Department of Education does. The school district has appealed this ruling to the Supreme Court, which has stayed the appeals court ruling while it decides whether to take the case.

If the Court takes the case and rules that the DoE’s interpretation is reasonable but not the only possible one, then a future administration would likely be able to reverse it. A ruling that the department’s interpretation is the only correct one would cement the policy in place.

Voting Rights

Weeks before the 2016 term even began, the Court took interim actions having significant impacts on the right to vote in three states:

  • In August, the Court rejected North Carolina’s request to let it enforce provisions of a voter suppression law struck down by the Fourth Circuit, pending the outcome of the state’s appeal to the High Court.
  • In early September, the Court rejected Michigan’s request to enforce its new law banning automatic straight-ticket voting (where a voter can easily vote for all candidates of the same party running for any office). This will allow many voters to cast their ballots far more quickly and reduce lines at polling places.
  • Several days later, the Court declined to put a temporary hold on a lower court’s ruling striking down Ohio’s “Golden Week,” when voters can both register and vote at the same time. This period is used particularly by African Americans, but it will be unavailable to them this fall.

Any one of these cases could eventually be considered on the merits by the Court. Perhaps the most important of these is the North Carolina case.

North Carolina v. NC Conference of the NAACP: North Carolina has not yet submitted its petition for certiorari in this case.

In July, a three-judge panel of the Fourth Circuit Court of Appeals reversed a lower federal court and struck down North Carolina’s notorious voter ID law, as well as its provisions curtailing or eliminating early voting, same-day registration, out-of-precinct voting, and preregistration of 16 and 17 year-olds. The court concluded that not only did the law have a racially discriminatory impact, it was actually intended to make voting harder for African Americans. The judges concluded that provisions of the new law “target African Americans with almost surgical precision” without remedying the alleged problems the state claims were their justifications.

Struck down were the elimination of one of two Sunday early voting days (which have been used as “souls to the polls” voting turnout efforts by African Americans); a strict new photo ID law; same-day registration; out-of-precinct voting; and preregistration of 16 and 17 year-olds. All these provisions targeted voting methods more frequently used by African Americans, or required photo IDs that African Americans are less likely to have.

The Fourth Circuit ruling was an enormous victory for the right to vote. However, given the important issues raised, the lower court’s ruling on a constitutional basis, and the high profile of the case, it seems likely that the case will be appealed to and heard by the Supreme Court.

As noted above, the state had asked the Court to stay the Fourth Circuit’s ruling and allow enforcement of the new law during the November election, pending resolution of North Carolina’s as-yet-unfiled certiorari petition. On the preregistration provision, the Court split 7-1, with only Justice Thomas voting to let the state enforce it. But on all the other provisions at issue, the Court split 4-4. Without a majority, the petition was denied.

That 4-4 split suggests that if the case is ultimately decided by the Supreme Court, the identity of the ninth justice will be of enormous importance. Had Merrick Garland been granted timely consideration by the Senate, he likely would have been on the Court in time to provide a tie-splitting vote on North Carolina’s stay application.

Bethune-Hill v. Virginia Board of Elections and McCrory v. Harris: Racial redistricting.

The Court will be hearing two cases involving redistricting plans adopted after the 2010 elections that are challenged as racial gerrymandering.

In McCrory v. Harris, North Carolina appeals a decision by a three-judge district court that two of the Congressional districts created after the 2010 Census are racial gerrymanders in violation of the Equal Protection Clause.

The lower court said that strict scrutiny applies to race in redistricting only when race is the “dominant and compelling” consideration in drawling lines. In this case, the court ruled, race was the predominant consideration with respect to CD1 and CD 12, and the state legislature did not narrowly tailor those districts to serve a compelling interest. Plaintiffs in this case are two voters, one from each district, who claim that North Carolina used the Voting Rights Act’s Section 5 preclearance requirement (then in effect) as a pretext to pack African American voters into the two districts, thereby reducing their influence in other districts.

Bethune-Hill v. Virginia State Board of Elections addresses Equal Protection challenges to twelve state legislative districts. In this case, the lower court upheld the redistricting. It concluded that race was not the predominant factor in motivating the state legislature’s boundary choices in 11 of the 12 districts, and that they all survived the lower level scrutiny applicable in that situation. The court did find that race was the predominant factor in shaping one district (House District 75), but that the legislature had a compelling interest (compliance with the VRA), and its use of race was narrowly tailored to achieve that interest.

Improper redistricting is one way that the electoral influence of communities of color can be diminished. These cases may help lower courts determine when race has been used unconstitutionally.

Disability Rights

The Court has accepted three cases that could have a significant impact on people with disabilities.

Fry v. Napoleon Community Schools addresses the interplay among four federal laws designed to remove obstacles preventing people with disabilities from participating as full members of our society: the Handicapped Children’s Protection Act of 1986 (HCPA), the Individuals with Disabilities Act (IDEA), the Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act. In this case, a student with cerebral palsy was prohibited from bringing her service dog with her to school, which provided a human aide instead. At issue is whether her parents can sue for damages, which are not available under the IDEA, under the ADA and Section 504 without first going through all the state-level resolution efforts required by IDEA and HCPA.

Ivy v. Morath addresses efforts by five hearing-impaired Texans to get drivers’ licenses, but the basic legal question could have a much larger impact. Texas will not give out drivers’ licenses to anyone under 25 unless they first provide a driver’s education certificate. The problem is that the only entities that provide such certificates are private companies licensed by the state, and none would provide a sign-language interpreter for the students. They initiated a class action lawsuit against the state agency to get it to comply with the ADA. The major legal issue is whether, under the ADA, the state is liable for discrimination in a program when it has delegated responsibility to private contractors.

In Endrew F. v. Douglas County School District, the Court is being asked to resolve the level of benefit that school districts are required to provide to children with disabilities under the IDEA. Circuit courts have split on the issue. As a result, districts in some parts of the country only need to provide “some educational benefit,” while those in other parts of the country must provide a “meaningful educational benefit.”

Housing Discrimination

Bank of America Corp. v. City of Miami and Wells Fargo v. City of Miami raise questions about Miami’s efforts to hold lenders accountable for the long-term effects of their discriminatory policies. The Court has accepted and consolidated the two cases. Lenders are asking the Court to decide whether the Fair Housing Act (FHA) allows cities to be among those who can sue because of racial discrimination in housing committed by others against city residents. Also at issue is whether the term “aggrieved person” in the FHA just means an Article III injury, or whether it requires something more than that. The lenders are also challenging how far down the cause-and-effect line one can go before you can no longer say that the defendant’s actions were the “proximate cause” of a bad result, as required by the FHA.

Other Important Issues

Other important legal issues that will be decided this term – unless the Court splits 4-4 because the current vacancy remains unfilled – include:

  • Must certain acting government officials who have been nominated (but not yet confirmed) to positions requiring Senate confirmation step down from their acting position once nominated? This is not a constitutional case, but one interpreting a statute setting forth rules for filling higher-level vacancies in the government. In an era of partisan obstruction of executive nominees, this could have a significant impact. (National Labor Relations Board v. SW General)
  • Some state laws prohibit merchants from charging a surcharge when customers use credit cards, but allow them to offer discounts to those who pay by cash. Does it violate the merchants’ First Amendment free speech right to describe their cash/credit disparity as a “surcharge” rather than a “discount for cash” in order to discourage customers from using credit cards? This could be an important case, since the Roberts Court has in the past used the First Amendment as a way to strike down ordinary economic and business laws, just as the Due Process Clause was used for that purpose in the Lochner Era. (Expressions Hair Design v. Schneiderman).
  • The Court has accepted three cases that could have an impact on some immigrants. Lynch v. Morales-Santana challenges a federal law treating (for the purposes of citizenship) children born abroad with only one citizen parent, depending on whether the citizen was the child’s mother or their father. Jennings v. Rodrigues addresses various aspects of bond hearings for non-citizens in detention. Lynch v. Dimaya asks whether the term “crime of violence” in immigration law is so too vague and therefore unconstitutional.

Conclusion

The Supreme Court’s decisions affect everyone: individuals and communities, businesses and consumers, employers and employees. As Citizens United and Shelby County show, they can have profoundly dangerous consequences for the health of our democracy. But as Obergefell and Whole Women’s Health show, the Court can hold the key to undoing unjust and oppressive laws that violate people’s basic rights.

The type of Court we have going forward will depend on who is chosen to fill its vacancies. No matter what issues one cares about, the Supreme Court is critically important in that area.

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Trump's New Pro-Life Adviser Doesn't Want To Talk About Contraception

Yesterday, The Telegraph published a largely sympathetic profile of Marjorie Dannenfelser, the anti-choice leader who is now heading up Donald Trump’s new “pro-life coalition.” Dannenfelser’s organization, the Susan B. Anthony List, is apparently pleased with the article and has been promoting it to its email list.

As The Telegraph notes, Dannenfelser is one of the best messengers the anti-choice movement has, intent on avoiding topics and tone that might make the movement look bad.

So it shouldn’t have been a surprise that when The Telegraph asked her about her stance on contraception, a critical topic in a movement that has differing views on where the line between contraception and abortion stands, Dannenfelser declared that the question was “not relevant”:

As a result, she doesn't want to speak about her views on contraception: apparently "it’s not relevant" and she is "not interested in talking about it".

A follow-up request to the SBA List spokesperson reveals why: the organisation is opposed to some kinds of birth control – namely, IUD coils and the morning after pill – because in both instances, there’s a chance they could prevent a fertilised egg from implanting.

As The Telegraph notes, SBA List does take a stance on contraception. The Guttmacher Institute reported in 2014, “SBA List has routinely referred to emergency contraceptives as ‘abortion drugs’ and describes the copper IUD as causing ‘early abortion.’” This view was critical to the group’s support for Hobby Lobby, which claimed that a requirement that it insure such contraception methods amounted to support for abortion.

Dannenfelser also repeated to The Telegraph her view that abortion should be outlawed with no exceptions except to save the life of a pregnant woman:

So what would her ‘perfect abortion bill’ look like?

“It would have an exception for the life of the mother only," she says, eventually, before her pragmatism rears its head. "But we’re not living a perfect world, and I have also been behind bills that have included the rape, incest and life of the mother exception."

Dannenfelser told the paper that she trusts Trump “immeasurably” (a change from her assertion during the presidential primaries that she was “disgusted” by his treatment of women), specifically citing his pledge to nominate foes of abortion rights to the Supreme Court.

Edit Memo: The Numbers Make Clear: Republican Senators Still Refuse to Do Their Jobs

To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: September 27, 2016
Re: The Numbers Make Clear: Republican Senators Still Refuse to Do Their Jobs

It’s hard work being a Republican senator.

Earlier this month, the Senate returned from the longest summer recess in 60 years.  That recess came even though Senate Republicans hadn’t found the time to hold a confirmation hearing for Supreme Court nominee Merrick Garland, or vote on lower court judges who had long ago been fully vetted and approved by the Judiciary Committee.

Now, three weeks after returning to town, the Senate is on the verge of recess again at least until after the November elections, having put far more time into actively blocking confirmation votes than holding them.  Without enough judges, the entire third branch of the United States government fails to perform its functions effectively, delaying or denying justice for millions of people and businesses across America.

Since the Senate returned three weeks ago:

  • McConnell has not allowed a vote on any judicial nominees.
  • The number of Article III vacancies is now 91 (one Supreme Court, 12 circuit courts, 76 district courts, and two Court of International Trade), a vacancy rate about double of that when the GOP took over the Senate last year.
  • The number of vacancies officially designated as emergencies has increased to 35.
  • The number of Article III judicial nominees languishing on the Senate floor without a vote has increased to 25

In fact, McConnell has allowed only six judicial confirmation votes in the past six months.  Only 20 circuit and district courts and two International Trade nominees have been confirmed so far this entire Congress, which is breathtakingly low by historical standards.

Senate GOP leaders could have done what Democratic leaders did at the same point eight years ago, two months before the election to replace George W. Bush.  During the month of September, then-chairman Patrick Leahy held committee hearings and votes for ten Bush nominees, and then-Majority Leader Harry Reid arranged for all ten to be confirmed at the same time by unanimous consent on September 26.

Despite the two-dozen Obama nominees on the Senate floor, it actually wouldn’t take that long to confirm them.  Confirming those ten Bush nominees in 2008 took less than one minute of Senate floor time.

Less than one minute—that bears repeating, because Senate Republicans this month have spent a lot more time than that actively blocking efforts to have votes on long-waiting judicial nominees.  The details of that obstruction are worth recounting, because they show just how ridiculous the GOP’s efforts are.

On Wednesday, Sept 7, several Democrats went to the floor and highlighted the outrageously slow pace of judicial confirmations.  Each asked for unanimous consent (UC) to hold confirmation votes.  Sen. Heidi Heitkamp began, asking for UC to vote on all 20 of the circuit and district court nominees then pending on the Senate floor (2 circuit, 18 district).  Most had been approved by the Judiciary Committee as long ago as May or earlier.  Four had their committee approvals last year, including Tennessee’s Edward Stanton III and New Jersey’s Julien Neals, both African American nominees with home-state senators’ support … or so it seemed.

Senator McConnell asked to modify the UC request to a mere four nominees to be voted upon at some unknown future date.  All were white, all four had been waiting for significantly less time TN’s Stanton, and three had been waiting less time than New Jersey’s Neals.  This would have skipped over a number of other nominees who had been waiting longer than one of the nominees McConnell was including.  Rather than permit McConnell to violate regular order and allow his favored, Republican-supported nominees to “jump the line” significantly, Sen. Cory Booker spoke up for the Democratic caucus, rejecting McConnell’s plan.  At that point, McConnell objected to Sen. Heitkamp’s original request.

Since 20 thoroughly vetted nominees ready for confirmation months ago was clearly too much for McConnell, Sen. Tammy Baldwin sought UC to vote on just the oldest 14, which included a 7th Circuit nominee from Wisconsin named Donald Schott who would fill a seat that has been vacant for more than six years.

McConnell said no.

Sen. Mazie Hirono tried next: What if we take the circuit court nominee off?  She sought UC on the remaining 13 district court nominees.

McConnell said no.

Sen. Elizabeth Warren came up next.  What about the ten longest-waiting nominees?  As with all the other Democrats’ efforts, this one included Tennessee’s Stanton.

This time, it was Tennessee’s Lamar Alexander who said no—no to a vote on a Tennessee nominee whose nomination has been left hanging since last year, and who Sen. Alexander claims to support.

At this point, Cory Booker returned to the floor and pointed out that McConnell’s “compromise” of four judges had skipped over the two African American nominees who had been waiting the longest.  So he made a UC request just for them:  Edward Stanton of Tennessee (waiting for a floor vote since October 29 of last year), and Julien Neals of New Jersey (waiting since November 5 of last year).

This time it was GOP Sen. Bill Cassidy of Louisiana who said no.  And Sen. Alexander?  He did not speak up for his nominee at all.  Even with a UC for just Stanton and one other nominee who have been waiting since last year, Sen. Alexander’s “support” was MIA.

And the excuse that McConnell and his obedient GOP senators gave for not allowing a vote even on two consensus nominees waiting since last year?  They repeatedly claimed that Republicans were being fair to President Obama’s nominees overall during his presidency, citing the fact that there have been more Obama nominees confirmed than Bush had.

Misleadingly, he failed to say that there have been more vacancies to fill during Obama’s presidency, which is why there have been more confirmations.  He also failed to point out that Republicans had forced cloture votes on an incredible 93 of the confirmed nominees while they were the minority party; it takes gall to take credit for confirmation votes that you and your party actively tried to prevent.

But perhaps most importantly, even if McConnell’s explanation weren’t intentionally misleading, it would still be completely irrelevant.  An increasing number of courtrooms across the country are experiencing troubling, extended vacancies that are harming their communities.  They need judges desperately, and there are fully vetted nominees willing to step in to their robes and start work as soon as possible.  Why not let them?  In what possible way would treatment of other nominees over the past seven years justify denying access to justice to communities today? Is there some unknown quota on the number of confirmations that only Senator McConnell knows about?

So we’re left with a Republican Party that leaves town again having taken no confirmation votes on lower court nominees, and still refusing to even hold a committee hearing for Merrick Garland.

This is anything but normal, as is made clear when comparing this year’s obstruction with the way the Democratic-controlled Senate treated Bush’s nominees during his final two years in office.  The figure below shows the stark difference in the pace of circuit and district judicial confirmations under today’s Republican-controlled Senate as compared to the Democratic-controlled Senate of Bush’s last two years.

graph1

Another way of contrasting how seriously Senate Democrats took their job in 2007-2008 versus the attitude of Republicans today is to track the number of vacancies. Judicial vacancies open regularly and predictably, since judges usually announce their intent to retire or go into semi-retirement up to a year in advance. Just to keep the number of vacancies at an even level requires that several new judges be confirmed each month.

At the beginning of 2007, there were 56 circuit and district court vacancies. Throughout the next two years, the number of vacancies generally remained at 50 or fewer, getting as low as 34 in the early fall of 2008. Because an unusually high number of vacancies opened up after Election Day, that number climbed back to 55 by Inauguration Day, but even with that increase, the number of vacancies ended up at about what it had been two years earlier.

Today, in stark contrast, the number of circuit and district court vacancies is climbing, more than doubling from 40 at the beginning of the year to 87 today.  (Including the Supreme Court and International Trade vacancies, the increase has been from 43 to 91.)

graph2

We see the same thing with judicial emergencies, a formal designation assigned by the Administrative Office of U.S. Courts for vacancies where the caseload per judge is so high that it endangers access to justice. Judicial emergencies have skyrocketed from 12 at the beginning of the new Congress to 35 today1. As the chart below shows, Democrats in the Senate during Bush’s last two years did not allow the number of judicial emergencies to increase in a similar fashion, and in fact the number generally remained steady or decreased during most of those two years.

 

graph3

So just three weeks after returning from an unearned (and record) seven-week vacation, the GOP-controlled Senate prepares to leave town having made no progress on filling the Supreme Court vacancy, and having spent far more time on the Senate floor blocking confirmation votes than it would have taken to confirm those same nominees.

And after all this time refusing to do their jobs, many of these senators are now asking the voters for another six years.  And they do it without blushing.

 

###

 


[1] Judicial emergencies are based on caseloads, which are weighted to reflect the wide variations in time and resources generally associated with different types of cases. On April 15, the Administrative Office of U.S. Courts list of emergency vacancies began to incorporate a new weighting system adopted a month earlier by the Judicial Conference of the United States. As a result, the number of officially designated judicial emergencies dropped from 34 on April 14 to 28 the next day, a drop that had nothing to do with Senate action.

 

New Trump Supreme Court List Makes Even Clearer the Dangers of a Trump Supreme Court

This piece originally appeared on the Huffington Post.

Much has already been written about the dangers that a Supreme Court with even one or two Donald Trump-appointed justices would pose to all our rights and liberties. Trump’s latest list of 10 more possible nominees makes that even clearer. In making his announcement last Friday, Trump proclaimed he was using the late Justice Antonin Scalia as a model for his picks, delighting the far Right. A quick look at these potential nominees’ records shows that they would in fact swing the court far to the right, maybe even further than Justice Scalia, on issues like the environment, voting rights, money in politics, consumer rights, gun violence, LGBT and reproductive rights and more. For the sake of all our rights and liberties, Trump cannot be given the opportunity to nominate Supreme Court justices.

Most of the attention so far has focused on Trump’s naming of Sen. Mike Lee as a potential Supreme Court nominee. Among his many other radical positions, Lee has denounced Supreme Court decisions upholding marriage equality and a woman’s right to choose, and has claimed that Social Security, Medicare, the Affordable Care Act, minimum wage and child labor laws, and many more are unconstitutional. Although Lee has indicated he is satisfied with his current job, at least for now, the prospect of Lee on the court has excited the far Right.

The lesser-known candidates on Trump’s list are similarly alarming. Florida Supreme Court Justice Charles Canady, who as a member of the House helped lead the fight to impeach President Clinton in the Senate, has been dubbed one of the Florida Court’s “Scalia-Thomas duo” because of far-right dissents he and one other conservative have written. These included one dissent that would have invalidated state restrictions on soliciting campaign contributions by state judges, and another that would have reversed a decision protecting vulnerable seniors from mandatory arbitration rules by nursing homes.

Another new Trump candidate, Neil Gorsuch of the 10th Circuit Court of Appeals, recently argued that the Supreme Court’s Chevron decision, under which courts defer to environmental and other agency interpretations of ambiguous laws and which even Justice Scalia had supported, is unconstitutional and should be overruled. Tim Tymkovich, another 10th Circuit judge on Trump’s new list, argued in a dissent that a federal regulation banning the carrying and storing of guns on U.S. Postal Service property should be partially struck down as unconstitutional.

The records of other state supreme court judges on Trump’s list are also disturbing. Georgia’s Keith Blackwell wrote in one case that homeowners injured by a plant’s release of hydrogen sulfide gas could not bring a class action against the plant, even though several lower courts said that they could. Iowa’s Edward Mansfield argued in one dissent that a fired employee should not be able to claim retaliatory discharge when she was fired by an assisted living facility for complaining about a supervisor forging state-mandated training documents. And Michigan’s Robert Young campaigned for re-election as a Tea Party candidate, appearing before Tea Party groups and securing their endorsements. His judicial record has been criticized as “partisan, wildly activist, rabidly pro-insurance, and anti-consumer.” For example, in one case he dissented from a decision that restored the basic rule, which he himself had helped strike down in an earlier case, that allows auto accident victims to sue for pain and suffering. And Young wrote one opinion upholding a requirement mandating photo ID at the polls, despite another judge’s contention that “history will judge us harshly” for the decision.

Perhaps the best summary of Trump’s new list was offered by Carrie Severino of the right-wing Judicial Crisis Network. Trump “continues to take unprecedented steps,” she proclaimed, to show that he would nominate people “like Scalia, Thomas, and Alito” to the Supreme Court. Severino and Trump are clearly hoping that this will shore up Trump’s support on the far Right. In fact, it has already helped secure Trump’s endorsement by former rival and right-wing Sen. Ted Cruz. But for all other Americans, the prospect of Trump nominees to the Supreme Court is truly frightening. This November, voters need to ensure that Donald Trump does not become President Trump.

This piece originally appeared in The Huffington Post.

PFAW

New List Makes Even Clearer the Dangers of a Trump Supreme Court

Much has already been written about the dangers that a Supreme Court with even one or two Donald Trump-appointed justices would pose to all our rights and liberties. Trump’s latest list of 10 more possible nominees makes that even clearer. In making his announcement last Friday, Trump proclaimed he was using the late Justice Antonin Scalia as a model for his picks, delighting the far Right. A quick look at these potential nominees’ records shows that they would in fact swing the court far to the right, maybe even further than Justice Scalia, on issues like the environment, voting rights, money in politics, consumer rights, gun violence, LGBT and reproductive rights and more. For the sake of all our rights and liberties, Trump cannot be given the opportunity to nominate Supreme Court justices.

Most of the attention so far has focused on Trump’s naming of Sen. Mike Lee as a potential Supreme Court nominee. Among his many other radical positions, Lee has denounced Supreme Court decisions upholding marriage equality and a woman’s right to choose, and has claimed that Social Security, Medicare, the Affordable Care Act, minimum wage and child labor laws, and many more are unconstitutional. Although Lee has indicated he is satisfied with his current job, at least for now, the prospect of Lee on the court has excited the far Right.

The lesser-known candidates on Trump’s list are similarly alarming. Florida Supreme Court Justice Charles Canady, who as a member of the House helped lead the fight to impeach President Clinton in the Senate, has been dubbed one of the Florida Court’s “Scalia-Thomas duo” because of far-right dissents he and one other conservative have written. These included one dissent that would have invalidated state restrictions on soliciting campaign contributions by state judges, and another that would have reversed a decision protecting vulnerable seniors from mandatory arbitration rules by nursing homes.

Another new Trump candidate, Neil Gorsuch of the 10th Circuit Court of Appeals, recently argued that the Supreme Court’s Chevron decision, under which courts defer to environmental and other agency interpretations of ambiguous laws and which even Justice Scalia had supported, is unconstitutional and should be overruled. Tim Tymkovich, another 10th Circuit judge on Trump’s new list, argued in a dissent that a federal regulation banning the carrying and storing of guns on U.S. Postal Service property should be partially struck down as unconstitutional.

The records of other state supreme court judges on Trump’s list are also disturbing. Georgia’s Keith Blackwell wrote in one case that homeowners injured by a plant’s release of hydrogen sulfide gas could not bring a class action against the plant, even though several lower courts said that they could. Iowa’s Edward Mansfield argued in one dissent that a fired employee should not be able to claim retaliatory discharge when she was fired by an assisted living facility for complaining about a supervisor forging state-mandated training documents. And Michigan’s Robert Young campaigned for re-election as a Tea Party candidate, appearing before Tea Party groups and securing their endorsements. His judicial record has been criticized as “partisan, wildly activist, rabidly pro-insurance, and anti-consumer.” For example, in one case he dissented from a decision that restored the basic rule, which he himself had helped strike down in an earlier case, that allows auto accident victims to sue for pain and suffering. And Young wrote one opinion upholding a requirement mandating photo ID at the polls, despite another judge’s contention that “history will judge us harshly” for the decision.

Perhaps the best summary of Trump’s new list was offered by Carrie Severino of the right-wing Judicial Crisis Network. Trump “continues to take unprecedented steps,” she proclaimed, to show that he would nominate people “like Scalia, Thomas, and Alito” to the Supreme Court. Severino and Trump are clearly hoping that this will shore up Trump’s support on the far Right. In fact, it has already helped secure Trump’s endorsement by former rival and right-wing Sen. Ted Cruz. But for all other Americans, the prospect of Trump nominees to the Supreme Court is truly frightening. This November, voters need to ensure that Donald Trump does not become President Trump.

This piece originally appeared in The Huffington Post.

Formerly Anti-Trump Catholic Adviser Says Trump's Court Promises Won Him Over

As we noted yesterday, conservative Catholic activist Joseph Cella, a member of Donald Trump’s new Catholic advisory committee and reportedly the new “chief liaison to the campaign for Catholic affairs,” joined other Catholic conservatives earlier this year in denouncing Trump as “manifestly unfit to be president of the United States.”

Cella appeared on Ave Maria radio yesterday afternoon and told host Al Kresta that he is now “happily” supporting Trump. When Kresta asked what had changed since the “manifestly unfit” statement, Cella said he has had a “sincere change of heart and mind.” Trump, he said, had convened some Catholic leaders in June to “listen and learn.” He said Catholic voters are coalescing around Trump and predicted that trend will continue.

Cella praised Trump’s public commitment to nominating conservative Supreme Court justices in the mold of the “great Catholic jurist and thinker” Antonin Scalia. Clinton, he said, would do the opposite, and with the next president likely having the opportunity to fill three to five vacancies, “that alone will have far-reaching and long-lasting implications for the Catholic Church” on issues like religious liberty and health care.

Cella also mentioned Trump’s naming of Religious Right favorite Mike Pence to be his running mate and his “excellent” senior staff—he said the Trump campaign’s top three leaders are Catholic.  

Trump Gives Another Gift To Far Right With New Supreme Court List

According to news reports, Donald Trump is set to release today more names of individuals whom he would consider nominating to the Supreme Court if elected, a key part of his strategy to win over the Religious Right and the conservative establishment.

The new list includes Republican Sen. Mike Lee of Utah, who, as Peter noted earlier this year, is not only a staunch social conservative but also believes that large parts of the federal social safety net are unconstitutional:

Lee dismisses Supreme Court rulings upholding a women’s right to abortion . He called the court’s marriage equality ruling a “breathtaking presumption of power.” People For the American Way noted in a 2010 report that Lee “has denounced as ‘domestic enemies’ those who disagree with his radically limited view” of the Constitution.

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

Lee also has some ideas about how he’d like to change the Constitution. We wrote when Lee was running for Senate in the Tea Party wave of 2010:

He wants to eliminate capital gains taxes and make the current tax system more regressive – more reliant on lower income taxpayers – and says his favorite approach to taxation would actually be to repeal the 16th amendment altogether, strip the federal government of the power to tax income, and leave it to the states to determine how they would tax their own citizens to pay for the limited federal government that would be left.

He’s a constitutional lawyer who’d like to make lots of changes to the Constitution: he has said he supports repeal of the 17th Amendment, which calls for popular election of U S Senators; he wants to "clarify" the 14th Amendment through legislation to deny citizenship to children born in the U.S. to parents who are not citizens or legal residents; he wants to amend the Constitution to require a balanced federal budget and to impose congressional term limits.

Other names on Trump’s expanded list are also sure to please those who are hoping to radically reshape American law.

The Trump campaign’s statement boasts that one potential pick, Michigan Chief Justice Robert Young, is part of a court majority that has “embraced originalism and led what one scholar described as a ‘textualism revolution.’” The article in question notes that much of the Michigan majority’s philosophy draws on the arguments of the late Justice Antonin Scalia (while differing with Scalia in some ways).

In 2007, Young wrote a majority opinion upholding Michigan’s voter ID law, writing that it was a “reasonable, nondiscriminatory restriction designed to preserve the purity of elections and to prevent abuses of the electoral franchise."

The new list also includes Charles Canady, a Florida Supreme Court justice who served four terms as a Republican in the U.S. House of Representatives in the 1990s. In the House, Canady was the first to introduce the so-called ban on “partial-birth” abortion, a term that had been newly coined by anti-choice activists to stir up opposition to a specific abortion procedure and prompt a legal challenge to undermine Roe v. Wade.

Also on Trump’s list is Timothy Tymkovich, the chief judge of the 10th Circuit Court of Appeals, who wrote that court’s opinion in favor of Hobby Lobby’s attempt to cite religious objections to deny its employees health insurance coverage for contraception. That case later made it to the Supreme Court, resulting in a dramatic reinterpretation of the idea of religious liberty in America.

Trump’s new Supreme Court list is, like his original list released in May, clearly aimed at pacifying social conservatives who want assurance that his federal judges will uphold their policy priorities and by conservative legal groups intent on remaking American law.

People For the American Way Statement on Hillary Clinton’s Millennial Outreach

In response to Hillary Clinton’s speech at Temple University and her Mic.com piece reaching out to millennial voters, People For the American Way Press Secretary Laura Epstein released the following statement:

“During Hillary Clinton’s speech today, she outlined why she’ll be a strong advocate for millennials in the White House: She detailed her plans to make higher education more affordable, ensure women receive equal pay for equal work, and enact policies to support working families, like paid family leave and affordable child care. It’s Clinton’s stance on these issues, not Donald Trump’s campaign of racism and bigotry, that millennials will show up for at the ballot box. We’ll support Hillary Clinton because she embraces immigrants instead of pushing mass deportation, and she understands the importance of combatting racism, not enflaming it.

“And as Hillary Clinton has made clear, this election will dramatically affect our generation’s future because of the Supreme Court. While Trump has promised Supreme Court justices who’d overturn abortion rights and reject LGBT rights, Hillary Clinton will appoint justices who will protect fundamental Constitutional rights for all Americans, including protecting Americans’ right to vote over the right of billionaires to buy elections. The next President could nominate up to four Supreme Court justices, and that stark contrast between Clinton and Trump is a big reason why millennials will reject Trump’s campaign of hate and turn out to vote for Hillary Clinton.”

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.

###

Sen. Elizabeth Warren Talks With PFAW Members About Judicial Nominations

Yesterday, Massachusetts senator and progressive hero Elizabeth Warren joined PFAW’s Michael Keegan and Marge Baker on a member telebriefing to discuss GOP senators’ unprecedented obstruction of judicial nominations at all levels, including their refusal to give fair consideration to President Obama’s Supreme Court nominee.

Sen. Warren noted on the call that Senate Republicans are now “setting new records for obstruction.” She suggested that they “might want to pull a copy of the Constitution out and take a look,” since the document is “crystal clear” about the Senate’s responsibility to confirm or reject the judges the president nominates. Instead, Warren said, GOP senators are trying to hold the Supreme Court seat open for a President Trump so that he can nominate judges who will bend the laws to suit their interests and the interests of their powerful friends.

Sen. Warren encouraged PFAW members and supporters to ask their senators why they won’t do their jobs and to keep up the pressure. “People For the American Way has done a fantastic job of putting pressure on Senate Republicans to give these judges timely consideration and an up-or-down vote,” she said. “This is a tough fight, but you don't get what you don't fight for.”

Marge Baker reviewed the work that PFAW is doing to make sure Republicans are held accountable at the ballot box on Election Day, including on-the-ground organizing targeting senators who have refused to do their jobs and PFAW’s massive Latinos Vote! campaign, designed to make sure Latino voters are ready to help deliver a progressive victory in November.

You can listen to a recording of the call here:

PFAW

Conservative Groups Urge Maximum Obstruction Of Hillary Clinton's Judicial Nominees

At a Values Voter Summit panel this weekend, top conservative legal groups promised that if Hillary Clinton becomes president, they will pressure GOP senators to obstruct her judicial nominees to the greatest extent possible, including attempting to prevent her from replacing the late Justice Antonin Scalia on the Supreme Court.

Carrie Severino of the Judicial Crisis Network, Phillip Jauregui of the Judicial Action Group, and David Christensen and Mandi Ancalle of the Family Research Council discussed what they would urge the president and the Senate to do in the first 100 days of the next presidency. In the case of a Clinton presidency and a Republican-controlled Senate, they promised maximum obstruction of judicial nominees.

Severino, who once called Judge Merrick Garland “the best scenario we could hope for” in an Obama Supreme Court nominee and said that “of those the president could nominate, we could do a lot worse” than Garland, predictably changed her tune once Obama actually did nominate Garland to replace Scalia on the Supreme Court. At the Values Voter Summit, Severino insisted that senators would “effectively nullify their oath to uphold the Constitution” by voting to confirm Garland.

“Say you’re in a state where there’s no chance on who’s going to win on the president’s side, it’s so important to remember how significant these senatorial races are, because the senators also had an oath to the Constitution,” she said. “They have to uphold and defend the Constitution. That means, when it comes to a vote for a nominee, so even if it is someone who is absolutely not going to uphold the Constitution as it is written, like Merrick Garland even, even if he does come to a vote—and I suspect that if he remains the nominee into the next presidency, he probably would come up for hearings and a vote at some point—our senators simply cannot be voting for someone that would effectively nullify their oath to uphold the Constitution. So I think we have to remember to remind our senators of that.”

Severino dismissed the idea of the Republican Senate confirming Garland in a lame duck session if Clinton wins the election, saying that if Clinton becomes president and renominates Garland or picks someone “more radical” for the court, GOP senators could stall proceedings and “maybe we'll have eight justices for awhile.” When asked how long she thought it would be realistic for a GOP senate to block a Clinton nominee to the court, she said, “I think the court could really function as long as it needed to with eight justices.”

She said that the “best case scenario” under a Clinton presidency would be if Clinton worked with Republicans in the Senate to pick a nominee who “did actually have a record of upholding the Constitution”; it’s unclear who she thinks such a nominee could be, since she previously called Garland the “best scenario” for a Democratic Supreme Court nominee.

Severino’s message that the Senate should obstruct just about any Hillary Clinton nominee contradicts the claims made by her group and others that they are merely blocking President Obama’s Supreme Court nominee because the decision on who to appoint to the Supreme Court should be left to the next president. (In the words of a Judicial Crisis Network ad: “This isn’t about Republicans or Democrats. It’s about your voice. You choose the next president, the next president chooses the next justice.”)

The Judicial Action Group’s Jauregui impressed upon the activists in the room that they would also have to be prepared to “fight vigorously” on nominations to the lower federal courts under the next president, including closely monitoring a President Trump’s nominations. He praised the effort of Texas Sens. John Cornyn and Ted Cruz to prevent President Obama’s filling of judicial vacancies in their home state by refusing to turn in “blue slips” giving the go-ahead for hearings on nominees, hinting at an obstruction strategy conservative groups might urge GOP senators to use under a Clinton presidency.

Jauregui urged the current Republican Senate to vow now to keep the current rules barring filibusters of lower-court judicial nominees if they stay in power, no matter who becomes president, saying it would be “foolish to say the best” to do otherwise.

Severino agreed that it would be “just as well” to see the judicial filibuster abolished for good after Senate Democrats invoked the so-called “nuclear option” in the face of entrenched GOP obstruction in 2013. She said that eliminating the filibuster on judicial nominees would probably help conservatives in the long run.

“If you’re not using a weapon, you might as well not have it anyway,” she said. “So now I say, move on, I think we’re living in a world, unfortunately, a post-nuclear world where 51 votes is all you need for a nominee, and that in the long term may actually help in terms of getting some of these constitutionally sound judges on the court.”

Trump: Scalia Will Be 'The Ultimate Example' Of My Supreme Court Picks

In a speech today to the Values Voter Summit, Donald Trump reiterated his promise to give the Religious Right the Supreme Court of their dreams while warning that if Hillary Clinton appoints new justices to the bench, “you have a country that is no longer your country, it will be a disaster.”

“Maybe we use Judge Scalia as the ultimate example of what we’re looking for, okay?” Trump continued.

Trump has often pointed to his commitment to put Scalia clones on the court as a way to shore up support from Religious Right activists.

“This will determine whether or not we remain a constitutional republic,” he said. “Frankly, that’s what’s going to happen. I have pledged to appoint judges who will uphold the constitution, to protect your religious liberty and to apply the law as written. We reject judges who rewrite the constitution to impose their own personal views on 300-million-plus Americans, not gonna have that.” (Ironically, Trump once said that as president he would order the military to follow his personal views rather than the law).

Clinton’s “extremist judges,” he said, “would allow her to completely take over the American health care, the American economy, the Americans’ religious liberty, not to mention your Second Amendment, which is on very thin ice right now, as you know, because of the fact that we’re at 4-4. If they even pick one judge who’s wrong, you can kiss the Second Amendment goodbye.”

Edit Memo: The Disastrous Consequences of a Trump Supreme Court

Trump has vowed to nominate right-wing Supreme Court justices like Antonin Scalia and Clarence Thomas. So what would a Trump Supreme Court actually mean for Americans’ rights and liberties?
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