Supreme Court

Garland Gets the ABA's Highest Possible Evaluation

You can practically hear the ABA members saying "WOW!" as you read their report on Merrick Garland.
PFAW

Trump: All My Judges Will Be 'Picked By The Federalist Society'

Today on “Breitbart News Daily,” Donald Trump lashed out at his conservative detractors who have continued to criticize him even after he all but clinched the GOP presidential nomination.

Trump, who said that such foes decided to “immediately stop talking about me and my views” following the terrorist attack in Orlando, accused the “jealous” and “pathetic” Mitt Romney and others of trying to put Hillary Clinton in the White House.

“Even though I’m going to appoint great judges, you know, we could have as many as five judges, and she’s going to appoint super radical liberals and I’m appointing, you know, you saw the 11 names I gave, and we’re going to have great judges, conservative, all picked by the Federalist Society,” he said.

Last month, Trump released a list of potential Supreme Court nominees crafted by the Heritage Foundation and the Federalist Society, two far-right groups.

Jeff Sessions: Keep 'Secular Mindset' Off The Supreme Court

Sen. Jeff Sessions of Alabama, a Republican member of the Senate Judiciary Committee, warned in a speech to the Faith and Freedom Coalition’s Road to Majority conference today that “the courts are at risk” in the upcoming presidential election, lamenting that at least one current Supreme Court justice displays a “secular mindset.”

Sessions said that as the committee’s ranking member during the confirmation hearings of Justices Sonia Sotomayor and Elena Kagan, “I felt, like so many of you, the court hasn’t been performing in a way we like it to.”

He repeated a criticism of Sotomayor that conservatives had leveled at her during her confirmation hearings, expressing dismay that she had approvingly quoted legal scholar Martha Minow’s observation that in the law "there is no objective stance but only a series of perspectives — no neutrality, no escape from choice in judging," an acknowledgment of the hidden assumptions and biases that all judges bring to the law.

Sessions said the quote “still makes the hair stand up on the back of my neck.”

“You see, this is a postmodern, relativistic, secular mindset and I believe it’s directly contrary to the founding of our republic,” he said.

“So I really think this whole court system is really important,” he added later in the speech, “and the real value and battle that we’re engaged in here is one to reaffirm that there is objective truth, it’s not all relative. And that means some things are right and some things are wrong, and we’re getting too far away from that in my opinion and it’s not healthy for any country and it’s really not healthy for a democracy like ours that’s built on the rule of law.”

Grassley Revives 'Wise Latina' Canard To Defend Trump's Racism

Sen. Chuck Grassley of Iowa, the chairman of the Senate Judiciary Committee, has taken the lead in the Senate GOP’s effort to block Judge Merrick Garland’s Supreme Court nomination in the hope that a President Donald Trump will be the one to name the late Justice Antonin Scalia’s replacement.

Grassley’s blockade became even more problematic this week when Trump launched a racist assault against a federal judge who is hearing a fraud case involving his Trump University. Trump claimed that the judge, who was born in Indiana to parents who emigrated from Mexico, had an “inherent conflict of interest” in the case because he is “Mexican” and Trump is “building a wall.” The presumptive GOP presidential nominee later acknowledged that using the same logic, it was “possible” that a Muslim judge should also be disqualified from hearing a case involving him.

Trump’s comments drew widespread condemnation, including from some of his fellow Republicans, but Grassley, apparently, didn’t see the problem. In a conference call with Iowa reporters today, Grassley equated Trump’s comments with Justice Sonia Sotomayor’s famous “wise Latina” remark that became a right-wing flashpoint during her 2009 confirmation hearings:

“I think that you don’t have any more trouble with what Trump said than when Sotomayor said that — when she was found saying in speeches that, quote, ‘A wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male,’” he said. “I don’t hear any criticism of that sort of comment by a justice of the Supreme Court.”

Grassley didn’t pull this comparison out of thin air: The same comparison has been popping up all over the right-wing media.

It’s a flashback to 2009, when conservatives latched on to a speech Sotomayor had given in 2001 in which she disagreed with the idea that a judge isn’t influenced by his or her personal background:

Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. … I am also not so sure that I agree with the statement. First, … there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

What Sotomayor’s critics often chose to ignore was that she went on to say that while a judge’s personal experience can’t help but influence how they see the world, a good judge tries to look beyond the myopia of personal experience to understand the lives of others:

I … believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. … [Nine] white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

Sotomayor later clarified in the face of right-wing criticism: “I want to state upfront, unequivocally and without doubt: I do not believe that any ethnic, racial or gender group has an advantage in sound judging. I do believe every person has an equal opportunity to be a good and wise judge, regardless of their background or life experience."

It shouldn’t be surprising that Grassley and some of his allies on the Right are reviving the “wise Latina” attack on Sotomayor as they attempt to defend Trump. In fact, Trump’s comments about Judge Gonzalo Curiel are not that different from how the Right attacked Sotomayor during her confirmation hearings, claiming that simply because she had spoken proudly of her Latina heritage and acknowledged that a person’s background can shape how they see the world she would be driven by “identity politics” rather than the law.

Some claimed explicitly, and many others implicitly, that Sotomayor, who had graduated from Princeton and Yale and had served for many years as a federal judge, was not as qualified as a white judge with a similar record. Pat Buchanan, who is now an enthusiastic cheerleader for Trump, was one of those who made the claim explicitly when he wrote that white Americans “pay the price of affirmative action when their sons and daughters are pushed aside to make room for the Sonia Sotomayors.”

We wrote in a report after her confirmation:

Sotomayor’s “wise Latina” remarks were taken out of context to imply that she was some kind of ethnic supremacist, and her ruling in the Ricci affirmative action case was wildly distorted to suggest that she was a judicial activist who lived to use the law as a club against white men. Pundits like Rush Limbaugh and elected officials like Tom Tancredo called her a racist. Pat Buchanan charged her with having a “race-based” approach to justice and having demonstrated “a lifelong resolve to discriminate against white males.”

On the first day of Sotomayor’s confirmation hearings, columnist Eugene Robinson observed:

Republicans' outrage, both real and feigned, at Sotomayor's musings about how her identity as a "wise Latina" might affect her judicial decisions is based on a flawed assumption: that whiteness and maleness are not themselves facets of a distinct identity. Being white and male is seen instead as a neutral condition, the natural order of things. Any "identity" — black, brown, female, gay, whatever —has to be judged against this supposedly "objective" standard.


Thus it is irrelevant if Justice Samuel A. Alito Jr. talks about the impact of his background as the son of Italian immigrants on his rulings — as he did at his confirmation hearings — but unforgivable for Sotomayor to mention that her Puerto Rican family history might be relevant to her work.

This seems to be the attitude of the Trump campaign, whose top operative has said that picking a woman or person of color as a vice presidential nominee would amount to “pandering” and whose list of potential Supreme Court picks were all white and mostly men. According to Trump, it seems, only white men can be unbiased and qualified. And Grassley seems to think that’s just fine.

Pat Toomey's SCOTUS Obstruction Backed By Only 18% Of Pennsylvanians

Sen. Pat Toomey, R-Pa., has joined other Senate Republicans in refusing to hold a hearing for Supreme Court nominee Merrick Garland, even going so far as to make misleading claims about Garland’s record as a judge.

Not surprisingly, Toomey’s stance may be hurting him among Pennsylvania voters.

Public Policy Polling released a poll today showing strong support in Pennsylvania — even among Republicans — for Senate hearings on Garland’s nomination.

One issue that continues to complicate Toomey's reelection prospects is the vacant Supreme Court seat. 53% of voters want to see it filled this year, compared to only 38% who think that should wait for the next President. More importantly though, 66% of voters want there to be confirmation hearings for Merrick Garland's nomination to just 18% who think he should be rejected out of hand. Democrats (79/9), independents (56/14), and even Republicans (52/31) think that Garland deserves a hearing. By a 23 point margin voters say they're less likely to vote for a Senator who opposes confirmation hearings on Garland's nomination- just 22% say that stance would make them more likely to vote for someone, compared to 45% who say it would make them less likely to.

Just yesterday, Toomey said that Donald Trump’s racist attack on a federal judge of Mexican descent was “deeply offensive,” “ridiculous” and “outrageous.” He is nonetheless apparently comfortable holding the vacancy on the Supreme Court open for a possible President Trump.

He isn’t the only Republican senator whose re-election chances are being harmed by the party’s decision to block Garland from even being considered for the Supreme Court, with polls in several key states finding the GOP’s stance to be overwhelmingly unpopular.

While Trump Makes Racist Attacks On Judge, GOP Holds a Supreme Court Seat for Him to Fill?

This piece originally appeared on the Huffington Post.

It was both completely in character and shamefully beyond the pale when Donald Trump accused Judge Gonzalo Curiel, who is presiding over two lawsuits against Trump University, of having an “inherent conflict of interest” in the cases because of the judge’s Mexican heritage. On Sunday he extended that charge to Muslim judges, who he also suspects would be unable to remain unbiased. If there was a shred of doubt remaining on the question of whether Donald Trump is fit to make judicial nominations before this attack, that debate is now over. Even GOP senators arespeaking out against Trump’s remarks. But in a contortion act that defies logic, those same senators continue to go to extraordinary lengths to hold open the vacant Supreme Court seat for the very person whose approach to judicial matters they are condemning.

GOP leaders rushed to denounce Trump’s remarks about Judge Curiel, with Republican senators including Kelly Ayotte, Jeff Flake, Rob Portman, and Mitch McConnell speaking out against his comments and House Speaker Paul Ryan calling them “out of left field” even though even a casual observer knows they were coming right from home plate for the past year. Trump has been consistent in his baseless attacks on entire communities since the first day of his campaign, when he smeared Mexican immigrants as rapists and drug dealers. And if some in the GOP are (rightly) condemning Trump’s vision of a justice system in which some judges are prohibited from doing their jobs because of their ethnic background, why are they going to extraordinary lengths to put him in the driver’s seat of our nominating process?

GOP senators are still doing everything they can to block President Obama from filling the Supreme Court vacancy. Rather than follow the Constitution and give fair consideration to President Obama’s extraordinarily qualified and respected nominee, GOP senators are running a campaign of unprecedented obstruction in order to allow Trump to make the Supreme Court nomination instead.

Let’s be clear: Trump had already provided countless reasons to call into question his fitness to nominate judges. This is a man who supports killing the family members of terrorists and wants to “open up” libel laws so he can go after journalists. That he’s now implying whole swaths of people are not fit for the federal bench is one of the most disturbing examples yet of Trump’s contempt for the independence of the judiciary and for Americans different from him. It goes against the most fundamental values of our country, and it is Exhibit A of why he should never be the person nominating judges at the Supreme Court or any level.

It’s no wonder Americans are worried about the prospect of Donald Trump making judicial nominations. Even before his attack on Judge Curiel, a recent poll found that the majority of Americans don’t trust Trump to fill the Supreme Court vacancy, and they’re none too pleased with the senators obstructing President Obama’s nominee.Half of voters say they are “less likely to vote for a senator who opposed having confirmation hearings” for Judge Merrick Garland. For Republican senators in tight reelection battles, their unwillingness to do their jobs is increasingly and rightfully becoming a liability with voters.

The fact that GOP senators are flat-out refusing to do their jobs on the Supreme Court was already an outrage. That they are now working to hold the seat open for a man who thinks some judges can’t do their jobs because of their ethnic background or religion is unconscionable and should be, quite frankly, embarrassing to all Republicans. GOP leaders are in a position of both condemning Trump’s approach to judicial issues and working to make sure he’s the one to make lifetime judicial appointments. Make sense? It doesn’t to me, either.

The choice is now crystal clear. It’s time to call the question and give Merrick Garland a vote.  

PFAW

Pat Robertson: Marriage Equality Makes It Harder To Fight 'Radical Islam And The Other Forces Of Secularism'

In August of last year, shortly after the Supreme Court handed down the landmark Obergefell marriage equality ruling, televangelist Pat Robertson discussed the ruling with Steve Strang, the founder of the Pentecostal magazine Charisma, on his podcast.

Robertson warned that “the homosexuals don’t want equality, they don’t want equal treatment, what they want is to destroy everybody who disagrees with them.” He predicted that there will be “a vendetta” against “any organization that disagrees with homosexuality,” saying that “what was done to Bob Jones University, that’s just a warm-up of what’s going to happen unless there’s something dramatic that takes place.” (Bob Jones University lost its tax exempt status in the 1980s because of its rules barring interracial dating.)

Robertson told Strang that with rulings like Obergefell, the Supreme Court has broken down America’s defenses against “radical Islam and the other forces of secularism trying to destroy us”:

The Supreme Court, to think that we’ve got five men and women, five unelected people who are controlling of the moral destiny of this nation and they’re stripping us of the defenses that we have to have against radical Islam and the other forces of secularism trying to destroy us. The Supreme Court is making it more and more difficult to assert these foundational values.

More and More Agree: Eight is NOT Enough for the Supreme Court

Over the last few days, both the Washington Post and prominent constitutional law professor Laurence Tribe have joined the growing chorus of voices, including Republican as well as Democratic judges, making clear that eight justices are NOT enough for the nine-member Supreme Court, and that the continuing vacancy caused by Senate Republicans’ unprecedented refusal to even consider President Obama’s nomination of Judge Merrick Garland for the vacant Court seat is unconscionable. As the Post put it, the continued vacancy has required the Court to “punt, duck, dodge and weave around contentious issues,” creating “dysfunction.” These problems are documented in more detail in the recent report by PFAW Foundation and the Constitutional Accountability Center, “Material Harm to our System of Justice: the Consequences of an Eight-Member Supreme Court.”

As the report explains, the continuing vacancy has already produced several 4-4 splits on the Court, leaving the contested lower court decision in place but setting no national precedent. In one situation, the result was that the Court could not resolve conflicting interpretations of federal law on loan discrimination in different lower courts, causing confusion and different rules for different people around the country. Specifically, as a result of this Supreme Court 4-4 split, people in some states can be required to get their spouse to co-sign a bank loan, while in other states, some right next door, that requirement is illegal.

In addition to several 4-4 splits, the continued vacancy has caused the eight-member Court to effectively punt several important cases for later review by a full Court, again leaving uncertainty and confusion as a result. For example, in the Zubik case concerning whether religious employers can effectively deny to their employees contraceptive coverage required by the ACA because of religious objections, the Court vacated conflicting lower court decisions and suggested that the government and the employers try to find a compromise and then go back to the lower courts, and the Supreme Court, if necessary. The continued litigation by some religious employers makes clear that future resolution by a nine-member Court will be necessary. But in the meantime, uncertainty about these important rights remains. As the report explains, the continued vacancy also appears to have decreased the number of important cases the Court has agreed to review next term starting in October, and makes it difficult for the Court to issue important temporary stay decisions in divisive cases where decisions must be made quickly, as in cases seeking temporary halts of executions or new election rules.

As a result, both Republican and Democratic-appointed judges and justices, including Chief Justice Roberts, Retired Justice John Paul Stevens, and the late Justice Scalia himself, have explained that having a full complement of nine members is important for a fully-functioning Court. Justice Ruth Bader Ginsburg agreed last week, commenting publicly that “eight is not a good number” for the Court.

And as the Post also explained, the Senate Republican leaders that are responsible for this problem “are doing more than ever to discredit themselves,” claiming that their blockade is about the non-existent “principle” that a vacancy that arises in an election year should be filled by the next president, contrary to history and the Constitution, while at the same time claiming that Republicans could find no “worse nominee” than Judge Garland. This is despite the fact that these very same Republican leaders, including Senate Majority Leader Mitch McConnell, have agreed that Judge Garland is “well-qualified.”  As the Post concludes, this admission should “end the discussion”: Judge Garland should receive a hearing and should be confirmed. But if the Senate Republican blockade continues, the eight-member Court will only cause further harm to our system of justice.

PFAW

Elizabeth Warren Report Slams GOP Obstruction Of Nominees

Since Senate Judiciary Chair Chuck Grassley is making sure that the committee he runs completely ignores Merrick Garland’s Supreme Court nomination, one might think that he’s using the extra time to at least process the president’s many circuit and district nominees. Not!

While Grassley and Senate Majority Leader Mitch McConnell’s brazen and unprecedented refusal to consider Garland has drawn a great deal of attention,  PFAW has long reported on how this obstruction, far from being unique to Garland, is an extension of how the Senate GOP has treated President Obama’s lower court nominees for most of his time in office.

Today, Sen. Elizabeth Warren has made a tremendous contribution to the national conversation, issuing a new report entitled Going to Extremes: The Supreme Court and Senate Republicans’ Unprecedented Record of Obstruction of President Obama’s Nominees." The senator covers how Republicans have worked hard not to thoughtfully vet both judicial and executive branch nominations, but to slow down their confirmations as much as possible, or block their confirmations altogether.

She uses Senate Republicans’ own statements about the Garland nomination to show the disingenuousness of the rationales for obstruction they present to the public and demonstrates that their obstruction is unprecedented. And with a prosecutor’s efficiency, she makes the powerful case that the GOP has consistently and deliberately slow-walked or blocked altogether the president’s circuit and district court nominees, as well as his executive branch nominees.

Supported with facts and figures from the nonpartisan Congressional Research Service, Sen. Warren’s new report is a devastating indictment of a political party that has misused the confirmation process to prevent the executive and judicial branches from functioning effectively to protect consumers and workers, hold large corporations accountable, and protect equality.

As she notes in the report’s conclusion:

From the moment the Supreme Court vacancy arose, Senate Republicans linked arms in an attempt to deny President Obama the full authority of his office in the final year of his presidency. They cynically claimed they wish to “let the people decide,” but the people have already decided. Twice. They elected President Obama in 2008 by nine million votes and re-elected him in 2012 by five million votes. Republicans’ statements over many weeks have made clear that their true interest is what it has been for the past eight years: to block and hinder President Obama at every turn, dragging out or blocking outright the confirmation of nominees across the government and the courts.

As the report shows, the GOP has a shameful record of obstruction going back to President Obama’s first days in office.  The unprecedented blockade against Garland is only the apex of a pattern that has gone on for years.

Cross-posted from the PFAW blog.

Do Mitch McConnell and Chuck Grassley Agree With Trump That No Mexican Americans Should Serve On The Supreme Court?

This piece originally appeared in the Huffington Post.

Senate Majority Leader Mitch McConnell made clear this week not only that he wants Donald Trump to be president, but that the main reason he wants Trump to be president is so that he will be the one picking Supreme Court justices.

The Republican leader told radio host Hugh Hewitt that “the Supreme Court is the biggest thing the next president will deal with.” He continued, “I made sure of that by making sure that this president doesn’t get to pick this nominee and get them confirmed on the way out the door. But that alone, that issue alone will define much of what America is like for the next generation.”

According to McConnell, “That issue alone is enough to convince me to support Donald Trump.”

Senate Judiciary Committee Chairman Chuck Grassley also recently expressed his support for Trump selecting a Supreme Court justice to fill the vacancy left by the death of Justice Antonin Scalia. He told the Des Moines Register, “Based upon the type of people he’d be looking for, I think I would expect the right type of people to be nominated by him to the Supreme Court.”

Yesterday, Trump made clear that he applies a racial test when assessing the impartiality of judges, telling The Wall Street Journal that Judge Gonzalo Curiel should not preside over a fraud case involving his Trump University scam real estate seminars case because the federal judge has “an absolute conflict.”

According to Trump, Curiel’s “Mexican heritage” is “an inherent conflict of interest” because “I’m building a wall.” Curiel, whose parents are from Mexico, was born in Indiana.

Trump’s pronouncement raises a serious question for the Republicans who are engaging in an unprecedented effort to stop President Obama’s Supreme Court nominee, Merrick Garland, from so much as getting a Senate hearing, with the apparent goal to keep the seat open for a President Trump to fill.

Trump claims that a judge’s heritage is a conflict of interest because it means that he will be biased against Trump.

During every president’s term, numerous cases involving their policies or interpretations of the law are argued before the Supreme Court. If Trump believes a district court judge’s heritage creates an unfair bias against him, then one can assume that he thinks this same bias would exist in a judge on the highest court.

Approximately 10 percent of our country’s population is of Mexican heritage, and Donald Trump’s racial test would exclude every single one of them from the judiciary. Perhaps this explains why the list of potential Supreme Court nominees that Trump released last month was 100% white.

McConnell, Grassley and other Republicans obstructing President Obama’s Supreme Court nominee as they hope for a Republican victory in November now need to answer whether or not they too would apply Donald Trump’s racial test to the court.

PFAW

Supreme Court’s Recent Non-Decisions Highlight Importance of the Court in June and Beyond

This piece originally appeared in the Huffington Post.

Perhaps the most important thing about the Supreme Court this May was what it didn’t decide. As Justice Ginsburg candidly admitted to a group of lawyers, having only eight justices hamstrings the Court by making it more difficult to decide closely-divided cases. Far from suggesting that the Court’s importance has diminished, however, the Court’s non-decisions in May show just how important the Court continues to be, particularly in this fall’s elections.

With only eight justices, the Court issued two non-decision decisions in May that effectively punted important controversies for a future, fully-staffed Court to decide, but leaving significant confusion and uncertainty in the meantime. In the Zubik case, rather than splitting 4-4, the Court issued a brief unsigned opinion and vacated conflicting rulings in the lower courts on whether the Religious Freedom Restoration Act (RFRA) allows religious nonprofit colleges and other employers to effectively take away Affordable Care Act-required contraceptive coverage from their female employees. The Court directed that the lower courts should give the government and the objecting employers another opportunity to try to resolve the issue, and then decide the cases again if necessary, with Supreme Court review after that if needed. While resolving such controversies voluntarily is a desirable goal, it is clear from the prolonged litigation that at least some religious employers will not agree to any resolution under which its employees will get contraceptive insurance coverage from its insurer. The result is uncertainty for millions of women about their contraceptive coverage, as well as for religious employers about their claims.

The same day that the Court effectively punted in Zubik, it also issued a non-decision decision in the Spokeo case. In that case, the Court was to decide whether Congress may give individuals the right to sue for damages in federal court, so that they have “standing” to sue, when a federal law has been violated even in the absence of other actual injury.  This is an important issue since it affects the ability of Congress and individuals to hold companies accountable when they violate federal law.  In a 6-2 decision, the Court did not resolve the question of whether the individual in Spokeoactually had standing, but instead suggested that the lower court’s analysis was “incomplete,” and sent the case back to that court to reconsider the issue, without taking any position on the key issue presented by the case. This important question will need to be revisited by the Court again, after it again has nine justices.

During May, the Court accepted only three new cases for review starting in October, making a total of eight since Justice Scalia’s death. Legal commentators have suggested that the decisions not to take up more significant cases for  review is another result of an eight-justice court, with the remaining justices concerned about their ability to resolve controversial cases — again creating uncertainty about people’s rights.

Finally, non-decisions in three major pending cases in May, concerning affirmative action, reproductive rights, and immigration, will almost certainly lead to some kind of decisions in these cases in June, as the Court completes its work this term, with significant consequences for millions of Americans. Some decision on the merits is most likely in the Fisher case concerning affirmative action in college admissions, since Justice Kagan’s recusal from the case leaves the Court with seven members. The precise result will likely depend on swing Justice Anthony Kennedy, and may affect millions of minority students across America.

4-4 ties are quite possible in some of the remaining cases, including Whole Women’s Health, which concerns the constitutionality of extreme and unnecessary restrictions on abortion clinics in Texas. Advocates strongly believe the Court should resolve this case in favor of reproductive rights, which would protect the rights of millions, but the Court is clearly divided. Although not setting any national precedent, a simple tie vote in this case would leave the lower court opinions standing, which could effectively deprive all but the richest women in Texas of the ability to choose abortion. The Court will clearly be taking significant action soon.

In the meantime, Senate Republican leaders have refused to budge on their unprecedented blockade of the President’s nomination of Judge Merrick Garland to fill the vacant seat on the court, refusing even to grant him a hearing. It is becoming increasingly clear that they are trying to hold open that vacancy to be filled by, they hope, a President Trump. Trump’s list of potential nominees (also released in May) includes people who have called Roe v. Wade the “worst abomination in the history of constitutional law” and two others who voted to make their appellate court the only one in the country that sided with religious nonprofits’ efforts to deprive female employees of birth control.

To Senate Republican leaders and their right-wing allies, the stakes are clear. They will do everything they can to ensure that the current Court vacancy, and the additional vacancies very likely to arise in the next president’s term, are filled by far-right justices who will vote to overturn Roe v. Wade, limit contraceptive coverage, and set the clock back on civil rights and liberties for America. That is why continuing efforts to push Senate Republican leaders to take action on President Obama’s nomination is so important, and why the Supreme Court is such a critical issue in this fall’s elections.

PFAW

Roy Moore Ally: States Have A 'Duty' To 'Nullify' Marriage Equality Decision

John Eidsmoe, the prominent Christian Reconstructionist attorney who works for Alabama Chief Justice Roy Moore’s Foundation for Moral Law, joined conservative radio host Jerry Newcombe on his show Thursday to discuss Moore’s stand against the Supreme Court’s marriage equality decision, which has gotten him suspended from his post.

Eidsmoe accused Justices Elena Kagan and Ruth Bader Ginsburg of staging a “political coup” by choosing not to recuse themselves from hearing the Obergefell case and declared that state courts and state legislatures have the "duty” to “nullify” the decision.

Eidsmoe first justified Moore’s actions claiming that the Supreme Court decision applied specifically to four states, not Alabama.

“But even more than that,” he said, “what I think we’re gonna argue here is that this particular decision is so egregious that the state courts, state legislatures and the like have a right and a duty to nullify and disregard it.”

He claimed the decision was “without constitutional support,” “arrived at by illegitimate means,” and “seeks to redefine the institution of marriage.”

“I don’t think any governmental body, especially a group of unelected judges, has the authority to redefine God’s institution of marriage,” Eidsmoe said.

Eidsmoe also compared Alabama courts’ rejection of Obergefell to the Wisconsin Supreme Court’s rejection of the Dred Scott decision.

He criticized Ginsburg and Kagan for not recusing themselves because they had previously performed weddings for same-sex couples.

“There’s really only one reason that they refused to recuse themselves,” he said, “and that’s they knew that their votes were needed to get a 5-4 majority in this case, and it is as raw a political coup as you could ever imagine, complicated by the fact that it is by those who are supposed to be considered the least dangerous branch of government and the least likely people that you’d think would be undermining our constitutional system with a coup.”

David Barton: Voting Biblically = Voting For Donald Trump To Name Supreme Court Justices

David Barton, the oft-discredited Religious Right “historian,” Republican political operative and head of a failed Ted Cruz-supporting Super PAC, appeared on the American Family Association’s “Today’s Issues” this morning.

Barton’s message mirrored that of other Religious Right figures, like televangelist James Robison and dominionist Lance Wallnau, who are insisting that evangelicals go to the polls and vote for Trump no matter how flawed a person and candidate he might be. A few weeks, ago Barton told Christians that their job was to get more engaged in electing God-fearing candidates to office by “teaching ourselves and others to think and act biblically.” Today he made it clear that means voting for Donald Trump.

Barton, who claims to find biblical justification for his opposition to minimum wage laws, progressive taxes, capital gains taxes, estate taxes and unions, not surprisingly has a Bible verse that he says mandates a vote for Trump:

For me, the number-one thing for me in every federal election is Isaiah 1:26, the righteousness of the land is determined by the judges in that land. And since we already have Justice Scalia down, and we have three more that are of age, of concern, you’re looking at potentially four judges, and do I want Hillary appointing my judges? Absolutely, unequivocally not. There is not a snowball’s chance I get a good judge out of that. That is just not gonna happen.

With Trump, we got a list of 11 folks, 11 of whom are better than anything Hillary will ever propose, 10 of whom are absolutely rock stars, from our standpoint. So when I look at Isaiah 1:26, this is an easy thing. It’s still difficult for me in so many other areas, because I want to join my vote to someone who does recognize that he needs God, that he has sinned at least once in his life, and of course that’s the thing Trump said — ‘I don’t know of any reason I need to ask God for forgiveness. I’ve never asked him for forgiveness.’ That’s a difficulty, but at the same time, that does not mean that we won’t get the right kind of judges, and that in my estimation is the key thing for any federal election.

Barton warned Christians that they could find faults in and reasons not to vote for any person, even biblical figures like Lot and Noah who were used by God in spite of their flaws. And he insisted that judges are “the number-one biblical issue.”

The first question, there is not an option sitting this out. That is not optional in any way, shape, fashion or form. Second thing is when you vote, you have to vote biblically, and the number-one biblical issue is judges. And on those two things alone you got all the information you need to be able to vote.   

Later in the discussion, Barton insisted that we are not to hold our civil leaders to the same standards as our religious leaders and that the Bible actually lays out the different qualifications for each. Barton cited Exodus 18:21 as God's standard that voters are to use for choosing political leaders:

But select capable men from all the people—men who fear God, trustworthy men who hate dishonest gain—and appoint them as officials over thousands, hundreds, fifties and tens.

Trump obviously does not meet these qualifications in any way, but Barton is going to vote for him anyway – and tell other Christians it is their duty to do the same.  

Harming Justice: Effects of an Eight-Justice Supreme Court

To: Interested Parties
From: People For the American Way Foundation, Constitutional Accountability Center
Date: June 2, 2016
Re: Harming Justice: Effects of an Eight-Justice Supreme Court

The Supreme Court is about to embark on the most consequential portion of its Term: handing down decisions on some of the biggest questions facing the country today, questions ranging from immigration to abortion to affirmative action. It will be tackling those questions without a full complement of justices.  Justice Antonin Scalia died in February, leaving only eight members on the Supreme Court. Since Justice Scalia’s death, President Obama followed his constitutional duty and duly nominated the highly qualified and impeccably credentialed Judge Merrick Garland to fill the vacancy on the Court. However, conservative Senators have refused to do the jobs the people of their state sent them to Washington to do. The previous four Justices named to the Court waited an average of 74 days from nomination to confirmation; Judge Garland passed that mark on May 28 and has yet to be even given a hearing by the Chairman of the Judiciary Committee Chuck Grassley.

Having only eight Justices on the Supreme Court for a prolonged period of time diminishes the Court, diminishes the country, and diminishes the rule of law. With only eight justices, all too often the Supreme Court cannot do the job the Framers of the Constitution assigned to it.

The diminishing effects of an eight-Justice Court include:

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

The effects of an eight-Justice Court ripple far outside of Washington, DC. Millions of American lives are impacted by the decisions the Court makes – or doesn’t make. The sooner Senators set aside partisanship in favor of doing their jobs, the better off the Court and the country will be. For more information on the effects of an eight-member Court, please see the report Material Harm to Our Justice System: The Consequences of an Eight-Member Supreme Court.

Resources

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

Everything You Need to Know About an Eight Justice Supreme Court

The Originalist Case for the Senate to Do Its Job

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

Justice Waits for a Nine Member Supreme Court

Ruth Bader Ginsburg: 8 Is Not a Good Number

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

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Larry Pratt: If Conservatives Lose The Supreme Court, We May 'Have To Resort To The Bullet Box'

Larry Pratt, the executive director emeritus of Gun Owners of America, said on his “Gun Owners News Hour” radio program this weekend that if a Democrat wins the White House and the Supreme Court starts issuing decisions in favor of gun regulations, conservatives may turn to the “bullet box” to rectify the situation.

Pratt was interviewing Robert Knight, a senior fellow at the American Civil Rights Union, who warned that “if a liberal Democrat is elected president, then there goes the Supreme Court, it could be two, three, four justices, and I think the Second Amendment would be in great peril if that happens.”

Pratt responded that if such a court interprets the Constitution in ways that conservatives don’t like, they may have to restore “proper constitutional balance” through the “bullet box”:

And at that point, we would have to come to an understanding, which we’ve been sort of taught, it’s been taught out of us, that the courts do not have the last word on what the Constitution is. They decide particular cases, they don’t make law. Their decisions, unlike the Roe v. Wade usurpation, don’t extend to the whole of society, they’re not supposed to. And we may have to reassert that proper constitutional balance, and it may not be pretty. So, I’d much rather have an election where we solve this matter at the ballot box than have to resort to the bullet box.

Knight responded: “Well, there’s impeachment, too.”

Pratt has previously hinted at his willingness to use violence against Supreme Court justices with whom he disagrees, issuing a warning to Merrick Garland, President Obama’s nominee to replace the late Justice Antonin Scalia, saying that “the Second Amendment is all about people like Judge Garland.”

RNC Faith Liaison: Supreme Court Will Bring Religious Right Voters To Trump

The Republican Party’s faith outreach director, former South Carolina GOP chair Chad Connelly, says conservative Christians will vote for Donald Trump based on the future of the Supreme Court.

The biggest thing on evangelicals’ minds, I think, is the fact that we’re gonna be looking at a Supreme Court that could be vastly different going forward. And electing somebody like Hillary Clinton, who is obviously biased against the things that most evangelicals, Christians believe in, would be disastrous for religious liberty, for property rights, gun rights, religious freedom and stuff like that. I think it’s gonna settle out just fine and our folks will go our way.

Connelly told CBN’s Heather Sells that his friends and fellow church members had been split among Republican candidates, but that voters have now “given us two choices.” Trump’s plans to meet with Religious Right leaders and activists next month are, said Connelly, a sign that Trump knows you “don’t leave anybody out, especially not the base.”

Connelly travels the country encouraging pastors to register their congregants to vote and convince them to cast ballots based on a “biblical worldview.” Like speakers at virtually every Religious Right gathering, he said that what’s happened to the country “is literally our fault” because pastors haven’t preached aggressively enough. “Voting is not political,” he said, “it’s spiritual. It’s our witness and testimony to the community of what we believe in.”

He said he doesn’t think conservative pastors going to sit on the sidelines any more. He tells pastors, “Get your people registered and talk to them about the issues of the day and then make sure they go vote those issues in the voting booth.”

I spoke at a church…not long ago where the pastor kind of apologized to his congregation before he introduced me. He said he’d been preaching for 39 years and had never tried to connect the dots of the things going on with biblical worldview, and he said, “that’s gonna change.”

Asked whether Trump should apologize to Latino Christians who have been offended by his rhetoric, Connelly said, “I’ll leave his campaign decisions to him” and pivoted back to the Supreme Court.

I’ve been with Latino and African American and Anglo pastors all over the nation and they see this Supreme Court deal as a very big thing. You know the next president’s gonna probably appoint two, maybe three, and potentially four Supreme Court justices. That’s a 50-year decision for Christians out there.

To those conservative Christians who aren’t happy with their choices, Connelly says, “no man’s perfect.” But he says that people who are upset about Planned Parenthood and “judges rewriting God’s definition of marriage” should realize that “the Republican Party is the natural home for people of faith.”

Says Connelly, “I mean, let’s face it...it may be 100 years before the other party swings back and pays any attention to Christian values and biblical values like you and I care about.”

Southern Baptist Convention President Ronnie Floyd also cited the Supreme Court in defending his decision to meet with Trump in June:

This election is about who will appoint as many as four Supreme Court justices. This election is about the dignity of human life from the womb to the tomb. This election is about the most significant religious freedom concerns in American history. I'm not about to sit at home on Election Day because I'm accountable to God and, I believe, I am accountable to my fellow Americans to vote. This is why I am meeting with Donald Trump, and why I would be willing to also meet with Hillary Clinton.

The Garland Effect Continues To Haunt Senate Republicans

North Carolina Senator Richard Burr is the latest Republican Senator to face a spate of terrible poll numbers, in part based on the unprecedented obstruction of Merrick Garland’s Supreme Court nomination.

A new Public Policy Polling survey in North Carolina finds that “Burr's lead is just 3 points at 39% to 36% for [Democratic candidate] Deborah Ross, and 8% for Libertarian Sean Haugh.” Furthermore, “Burr continues to be pretty unpopular with only 28% of voters approving of the job he's doing to 40% who disapprove.”

Senate Majority Leader Mitch McConnell and Judiciary Committee Chairman Chuck Grassley’s decision not to do their jobs and hold hearing for Merrick Garland are acting like an anchor around Burr’s poll numbers in the state.

PPP notes:

One issue that's shaping up to cause trouble for Burr right now is that of the vacant Supreme Court seat. 58% of voters in the state think Merrick Garland deserves confirmation hearings for his nomination to the Court, compared to only 24% of voters who are opposed to that. By a 17 point margin voters say they're less likely to vote for a Senator who is opposed to hearings- only 25% say that stance would make them more inclined to vote for their Senator, compared to 42% who say that would make them less likely to.

Burr is just the latest Republican Senate candidate to face electoral peril stemming from his caucus’s acquiescence to their leadership’s obstructionist strategy.

At the beginning of May, we pointed to the myriad of sinking poll numbers and electoral prospects of a number of Republican senators. Now Richard Burr can add his name to a list that includes Rob Portman (OH), Kelly Ayotte (NH), Ron Johnson (WI), Pat Toomey (PA), and even John McCain (AZ) whose reelection chances have been harmed by the GOP’s Supreme Court obstruction.

Grassley has been hurt by the obstruction campaign as well ,with his approval rating in his home state falling to just 47 percent.

For Mitch McConnell, this strategy was premised on the theory that the punishment from the conservative base of the Republican Party if Garland were confirmed to the court would be greater than the penalty from the electorate at large for not taking any action on President Obama’s appointment.

This latest polling suggests that if Republicans continue their intransigence, it will cost them their Senate Majority, and McConnell his present leadership role.

At the beginning of the month we stated, “If McConnell doesn’t reverse course soon and begin confirmation hearings for Merrick Garland soon, the question will be how many Senate seats he is willing to sacrifice to placate his party’s far-right flank.”

Now that number is six and counting.

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