Supreme Court

Young Leaders Join Members of Congress to tell Senators: #DoYourJob

Today, national youth-led and youth-serving organizations released an open letter to U.S. Senators calling for fair consideration for President Obama’s Supreme Court nominee, Merrick Garland.

At the press conference releasing the letter today at the Supreme Court, young leaders from across the country joined members of Congress and discussed why Senator Chuck Grassley, the chair of the Senate Judiciary Committee, needs to do his job and schedule hearings and a vote for Judge Garland instead of engaging in unprecedented partisan obstruction. Speakers also shared what’s at stake for young people in the Supreme Court vacancy fight.

The letter released today is signed by Young People For, Generation Progress, NAACP Youth and College Division, Sierra Student Coalition, the Roosevelt Institute, NARAL Pro-Choice America, Energy Action Coalition, American Constitution Society Student Chapters, the Young Elected Officials (YEO) Network, Student Debt Crisis, Advocates for Youth, and the Micah Leadership Council. Text of the letter is below.

Key remarks from Senators, Representatives, and young leaders:

Sen. Cory Booker: “It’s energizing to see so many young leaders at the front of the growing chorus of voices urging Senate leaders to do their job and provide a fair process for the consideration of Chief Judge Merrick Garland. The decisions made at the Supreme Court don’t just impact us today, they impact generations to come. That’s why it’s so important that the Senate do its constitutional duty to provide advice and consent by giving Merrick Garland a fair hearing and an up-or-down vote.”

Sen. Al Franken: “It’s been more than three months now since a vacancy opened on the U.S. Supreme Court, and during that time, we’ve seen a whole lot of partisan bickering, obstructionism, and political maneuvering. But you know what we haven’t seen: Senate Republicans doing their job as outlined by the Constitution. The President has fulfilled his duty by nominating Chief Judge Merrick Garland to the highest court in the land, and now, it’s the responsibility of us—the Senate—to fulfill our duty as well. That means we need Senate Judiciary Committee hearings, and ultimately, an up or down vote on Judge Garland’s confirmation. I was pleased to join these young American leaders today to remind Senate Republicans that it’s time to take off their political blinders. This is far too important to ignore.”

Rep. Ruben Gallego: “As a member of Congress who was elected to do my job, I take my constitutional duty seriously. Senate leadership should stop their obstructionism and take their duties seriously, too. A lengthy Supreme Court vacancy can have severe and lasting consequences. It’s time for the Senate to do their jobs and give Judge Garland a fair hearing and a timely vote.”

Rep. Linda Sánchez: “This Supreme Court vacancy is critically important for all Americans, but especially for Latinos living in the United States.  We are an especially young community with more than 14 million millennials. So our message is simple: The President has done his job, now it is time for Republican Senators to do their job.”

Oscar Conejo, Hanover, New Hampshire: “I know some senators want to wait until after the election, until the next President is elected, to choose the next Supreme Court justice. But the Senators need to do their job, not play politics with the Supreme Court. As an undocumented student, I know just how critical the decisions are that they make on important issues that affect me and my family, from education to immigration and so much more.”

Consuelo Hernandez, Tucson, Arizona: “I’m here today because I’m tired of conservatives in the Senate choosing politics over precedent and chaos over constitutional duty. On issues as wide-ranging as voting, reproductive justice, and economic justice, the day-to-day lives of young people are directly impacted by the decisions made at the Supreme Court. By choosing not to give Chief Judge Merrick Garland the fair and timely consideration afforded past nominees, conservatives are abandoning their constitutional duties and turning their backs on the constituents like me who put them in office.”

Max Levy, Philadelphia, Pennsylvania: “As the president of the College Dems chapter at the University of Pennsylvania, I know how important it is to work with organizations from across the political spectrum.  Even though we don’t always agree, we work hard to foster productive dialogue on our campus. Right now, some Senators are saying we shouldn’t even hold a hearing for President Obama’s Supreme Court nominee, and that’s just plain wrong. Dialogue is healthy for democracy. I know that's true on my  campus, and it's true for the Senate.”

Mary Marston, Concord, North Carolina: "Young people now make up the largest voting bloc in America and many are just becoming politically active. It is critical that our elected officials follow through on their constitutional commitments to keep young people engaged in the democratic process."

Zach Wahls, Iowa City, Iowa: “I see the marriage between my moms—the possibility of their marriage—as our legal system keeping up its end of the American promise to a fair hearing and due process. Because the Court was able to act, and its decision was recognized as legitimate, my parents’ marriage is recognized in all fifty states—my parents’ sacred promise is recognized to mean the same thing in Iowa as in Alabama. We got a fair hearing, and we need to make sure that America can get a fair hearing, too.”

Peter Cheun, American Constitution Society Student Chapter President at IIT Chicago-Kent College of Law (Illinois): “Law students across the ideological spectrum may disagree on who their ideal Supreme Court nominee would be. But in my experience, they have been nearly unanimous in their agreement that the Senate should do its job: Give Judge Garland a fair hearing and an up or down vote.”

Max Eichenberger, American Constitution Society Student Chapter President at IIT Chicago-Kent College of Law (Illinois): “When employees fail to do their jobs, it is their business and consumers that ultimately suffer. For the U.S. Senate, their business is administering our representative government, and we are all the consumers. Give Judge Garland a fair hearing and keep this shop running.”

Joelle Gamble, National Director, Network at the Roosevelt Institute: "So far, in 2016, we've seen that young people just want the political process to work the way it is supposed to. If our leaders want us to participate, they have to ensure that the political process works in the first place. They must restore our faith in democracy."

Karissa Gerhke, Sierra Student Coalition National Director: “Young people working for just, sustainable communities and the protection of the environment are not taking a back seat in this fight. We can’t and we won’t let obstructionists threaten everything we’re fighting for on our campuses and in our communities. The Senate should do its job to fill this vacancy.”

Stephen A. Green, NAACP National Youth and College Director: "Young people from across the country have courageously come together to call upon Congress to do their job or lose their job. We deserve a democracy that works for all people, give Judge Garland a fair hearing!"

Erik Lampmann, People For the American Way Foundation’s Young People For Public Affairs & Policy Manager: “Keeping the Court understaffed is simply indefensible. Until our Supreme Court is empowered to function as it was designed, we will not stop calling on Senators to “Do Your Job” and treat the Court, the Constitution, and us with respect.”

Layla Zaidane, Generation Progress Managing Director: “As a generation, Millennials have grown up amid partisan gridlock and politicians more interested in playing political games than doing their job. But the Supreme Court vacancy isn’t a game to us: from marriage equality to reproductive rights, the decisions the Court makes affect our lives, every day. Millennials overwhelmingly support a hearing and a vote on President Obama’s nominee—it’s time for the Senate to do its job and ensure a fully-functioning, fully-staffed Supreme Court.”

For follow up interviews, pictures or videos from today’s event, please email media@pfaw.org.

Open Letter to the Senate

Dear United States Senators,

We, the undersigned youth-led and youth-serving organizations, call on all U.S. senators to give fair and timely consideration to President Obama’s Supreme Court nominee, Chief Judge Merrick Garland.

On issues as diverse as immigration policy, voting rights, and reproductive rights, the daily lives of young people are affected by what happens in our nation’s courts. We represent broad youth constituencies seeking to ensure that their rights are protected at the local, state, and federal level — including young immigrants, youth of color, trans* and queer youth, students, low-income youth, and differently-abled young people. We know the communities we work with are just some of the over 100 million people in this country who stand to be directly impacted by cases before the Court just this term.

A fully-functioning judiciary is essential to a flourishing democracy and critical to our ability to protect our rights and seek justice. Purposefully keeping the Supreme Court understaffed, as some senators are proposing, is indefensible.

Chief Judge Garland deserves the treatment traditionally afforded past Supreme Court nominees: prompt hearings and an up-or-down vote in the Senate. Senators who believe Chief Judge Garland should not serve on the Supreme Court are free to vote against him, but blocking the process entirely is an abdication of senators’ constitutionally-defined responsibilities and an insult to the people who elected them.

Young people are working each day to provide for themselves and their families; some are also studying for advanced degrees and vocational certificates or organizing their communities to create change. Across the country, young people are working hard at their jobs. They should be able to expect the same of their senators.

The undersigned organizations call on all senators to do their jobs and consider the President’s nominee to the nation’s highest court in a timely fashion. There are too many critical issues at stake for young people, and for all people, for ideologically motivated senators to play politics with our Supreme Court.

Respectfully,

Advocates for Youth
American Constitution Society Law Student Chapters
Energy Action Coalition
Generation Progress
Sierra Student Coalition
Student Debt Crisis
Micah Leadership Council
NAACP Youth and College Division
NARAL Pro-Choice America
Network at the Roosevelt Institute
Young Elected Officials Network
Young People For

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House GOP Attempts To Strip LGBT Workforce Protections

Over and over again, we have heard about the supposed demise of the Religious Right and how the Republican Party will stop focusing on issues like LGBT equality and abortion rights, especially in the age of Donald Trump.

As Ari noted last week, these claims come at a time when women’s “access to birth control is still a matter of public debate and gay, lesbian, and transgender individuals can still face discrimination across wide swaths of our country in the workplace, in housing, and even when attempting to access basic services.”

Trump, the candidate hailed by some pundits for minimizing such social issues, just put out a list of anti-abortion, anti-LGBT, ultraconservative jurists he would pick from when choosing his Supreme Court nominees.

The release of the list comes after Trump has made repeated vows to use the judicial nomination process to challenge the Roe v. Wade and Obergefell rulings, the landmark decisions on abortion and marriage equality, respectively.

Indeed, anyone paying attention to the actions of House Republicans over the last few days can see that the party is still committed to undermining LGBT rights.

“During debate on a military spending bill, Rep. Sean Patrick Maloney (D-N.Y.) offered an amendment to nullify a provision in a separate bill, the National Defense Authorization Act, that the House passed late Wednesday,” Jennifer Bendery of the Huffington Post writes today. “The provision opens the door to government contractors citing religious liberty as grounds for firing or harassing employees who are LGBT.”

When the amendment was on the verge of passing, GOP leaders convinced seven Republicans to switch their votes, successfully defeating the amendment by one vote. The Associated Press reports:

The vote was 213-212. President Barack Obama has issued an executive order that bars discrimination against LGBT employees by federal contractors, and Rep. Sean Patrick Maloney, D-N.Y., had offered an amendment to a spending bill that would have prohibited using taxpayer dollars to violate the order.

The vote for Maloney’s amendment peaked at 217, one short of the majority needed for passage, before it began a slow, sporadic decline. Members of the Republican whip team, whose job is to round up needed votes, were stalking the House chamber’s aisles where GOP lawmakers seat, openly pleading for support.

“Need two more votes,” Rep. Steve Russell, R-Okla., one of the GOP whips, said loudly as he prowled among Republicans.

Russell was the same congressman who introduced the anti-LGBT amendment that, according to the Advocate, allows groups “doing business with the U.S. government to fire or punish any employee based on their sexual orientation or gender identity” under the guise of religious freedom.

Also this week, Oklahoma Republican lawmakers passed “a bill that would make it a felony to perform abortions” and Texas Republicans expanded their already firm opposition to LGBT rights.

But remember, the culture wars are dead!

Trump Releases Supreme Court List, Including Conservative Dream Justices

Donald Trump, faced with conservative jitters over whom he would name to the Supreme Court if he were elected president, has promised to release a list of names from which he would promise to pick nominees. Today, according to the Associated Press, he released that list.

According to the Daily Beast, all of Trump’s 11 picks are white. Just three are women.

Trump’s list includes two possible picks whom he has frequently mentioned on the campaign trail: federal appeals court judges William Pryor and Diane Sykes. It also includes three additional people whom the Heritage Foundation recommended for Supreme Court posts after Trump said he would consult with the conservative group on his list: Raymond Gruender and Steven Colloton, both federal appeals court judges, and Texas Supreme Court Justice Don Willet.

Also on Trump’s list are Thomas Lee, a Utah Supreme Court justice and brother of Republican Sen. Mike Lee; Michigan Supreme Court Justice Joan Larsen, a former clerk to the late Justice Antonin Scalia; David Stras, who serves on the Minnesota Supreme Court; and federal appeals court judges Thomas Hardman and Raymond Kethledge.

It looks like Trump has, true to his promise, picked potential justices who would advance the conservative efforts to skew the federal courts far to the right. The libertarian publication Reason, for instance, has gushed over Willett for his willingness to overthrow government regulations.  (Willett, for what it’s worth, does not seem to return Trump’s admiration.)

We profiled Pryor, Sykes and Colloton last month:

William H. Pryor

One possible Supreme Court nominee whom Trump has specifically praised is William H. Pryor, selected by President George W. Bush to be on the U.S. Court of Appeals for the 11th Circuit. Formerly Alabama’s attorney general, Pryor has a history of extreme right-wing activism, severely criticizing not just women’s right to choose under Roe v. Wade but even the constitutionality of the New Deal.

Pryor has called Roe the “worst abomination in the history of constitutional law.” He has claimed that with the New Deal and other measures, the U.S. has “strayed too far in the expansion of the federal government,” and asserted that it “should not be in the business of public education nor the control of street crime.” As a judge, he has helped uphold a restrictive Georgia voter ID law and joined just one other judge on the 11th Circuit in claiming that “racially disparate effects” should not be enough to prove a violation of Section 2 of the Voting Rights Act, even though the Supreme Court has ruled precisely the opposite.

Pryor came first on a wish list of Supreme Court picks that the Heritage Foundation published shortly after Trump promised to consult them before naming justices.

Diane Sykes

Trump has also repeatedly named Diane Sykes, a Seventh Circuit federal appeals court judge appointed by President George W. Bush, as a potential Supreme Court nominee. Sykes, who previously served on the Wisconsin Supreme Court and a trial court, has also won high praise from the Heritage Foundation and from right-wing Wisconsin Gov. Scott Walker.

In a series of dissents, Sykes has argued in favor of big business and against consumers and discrimination victims, including cases where she tried to limit corporate liability for product defects and overturn a $1 million damages award, to protect a corporation from having to defend against an employee’s claim of discrimination under the Americans with Disabilities Act, and to reverse a $3.5 million bad faith judgment in favor of a Lutheran church against its insurance company.

She showed her anti-reproductive-choice views in providing a lenient sentence to two anti-abortion protesters who had to be forcibly removed from blocking the entrance to a Milwaukee abortion clinic and had previously been arrested 100 times for such offenses; Sykes nevertheless praised them for their “fine character” and expressed “respect” for the “ultimate goals” the blockade “sought to achieve.”

She asserted in dissent that a jury verdict against a criminal defendant should have been upheld even though there was extensive evidence that one of the jurors did not understand English (including a statement from the juror himself), which disqualified him from serving on a jury under Wisconsin law; that a prosecutor should be immune from a claim that he fabricated false evidence that wrongly convicted a man for 17 years; and that a conviction under federal law against someone convicted of domestic violence for possessing firearms should be reversed and that the law itself could well be unconstitutional, in disagreement with all 10 other judges on the court of appeals. She voted in favor of a Wisconsin voter ID law and of a claim by a student group that it should receive state funding and recognition despite its violation of a university rule prohibiting against discrimination based on sexual orientation, an issue on which the Supreme Court reached exactly the opposite conclusion several years later.

She asserted in dissent that a jury verdict against a criminal defendant should have been upheld even though one of the jurors did not understand English, that a prosecutor should be immune from a claim that he fabricated false evidence that wrongly convicted a man for 17 years, and that a conviction under federal law against someone convicted of domestic violence for possessing firearms should be reversed and that the law itself could well be unconstitutional, in disagreement with all 10 other judges on the court of appeals. She voted in favor of a Wisconsin voter ID law and of a claim by a student group that it should receive state funding and recognition despite its violation of a university rule prohibiting against discrimination based on sexual orientation, an issue on which the Supreme Court reached exactly the opposite conclusion several years later.

Steven Colloton

The third name on Heritage’s list of possible Supreme Court nominees is Judge Steven Colloton, who was appointed by President George W. Bush to the Eighth Circuit Court of Appeals, after previous service for Independent Counsel Kenneth Starr and as a U.S. attorney.

Colloton has been at the forefront of a number of troubling Eighth Circuit rulings, including writing decisions that reversed an $8.1 million award to whistleblowers who helped bring a defective pricing and kickback claim against a large corporation and a nearly $19 million class action judgment against Tyson Foods for violating the federal Fair Labor Standards Act. He also joined a ruling making the Eighth Circuit the only appellate court in the country that found that the Obama administration’s efforts to accommodate religious universities and other religious nonprofit objectors to the provision of contraceptive coverage under the ACA was insufficient, an issue n ow being considered by the Supreme Court.

Even more troubling, Colloton has dissented from a number of Eighth Circuit rulings that have upheld the rights of employees, consumers and others against big business and government agencies. He dissented from a decision giving African-American shoppers the opportunity to prove discrimination claims against a large department store, and then saw his view prevail by one vote when the full Eighth Circuit reheard the case. In another case, he dissented from a decision finding that a city had violated the Voting Rights Act by improperly diluting the voting strength of Native Americans.

Colloton dissented from rulings that gave individuals a chance to prove claims of use of excessive force and, in one case, that a city’s policy to use police dogs to bite and hold suspects without any warning was unconstitutional. In three separate cases, he dissented from decisions that employees should at least get the chance to prove in court that their employers retaliated against them for filing sex harassment, age discrimination, or other discrimination claims. In two more decisions, he argued in dissent that public employees should not have the opportunity to prove that they were retaliated against for speaking out in violation of their First Amendment rights. Yet he also claimed in a dissent that the First Amendment rights of a candidate for state supreme court justice were violated by a state judicial code of conduct restricting solicitation and other campaign activity in order to promote judicial impartiality and ethical conduct by judges. Even the conservative Roberts Court that decided the Citizens United case has agreed that these concerns justify solicitation restrictions in state supreme court elections.

This post has been updated to clarify the circumstances of a case in which Sykes asserted in a dissent that a jury verdict should have been upheld despite evidence that one juror was disqualified from serving.

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

Senate Majority Leader Mitch McConnell has said that the Senate won’t confirm any Supreme Court nominee unless that nominee has the support of the National Rifle Association, which has been stretching the truth in its efforts to oppose the nomination of Merrick Garland.

The absurdity of this position was reinforced yesterday when, as Media Matters reported, NRA board member and perpetual loose cannon Ted Nugent posted on his Facebook page a fake video of Hillary Clinton being shot, with the caption “I got your guncontrol right here bitch!”

This is who McConnell wants in charge of vetting Supreme Court justices?

This sort of gleeful violence is nothing new to Nugent, who in a 2007 onstage rant relished the prospect of killing Clinton and then-candidate Obama:

Decked out in full-on camouflage hunting gear, Nugent wielded two machine guns while raging, "Obama, he's a piece of shit. I told him to suck on my machine gun. Hey Hillary," he continued. "You might want to ride one of these into the sunset, you worthless bitch." Nugent summed up his eloquent speech by screaming "freedom!"

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

Stunningly, there seems to be no organized effort within the NRA to fire Nugent, even as some NRA members have been waging a campaign to oust anti-tax activist Grover Norquist from the organization’s board because they claim he is a Muslim Brotherhood agent.

Nugent, not surprisingly, is enthusiastically backing Donald Trump in the presidential race.

So, Senate Republicans are refusing to so much as hold a hearing on Garland’s nomination in the hope that Trump will become president and nominate someone who has been approved by Nugent and his organization? Sounds reasonable.

GOP Senator Disputes 'People Ought To Decide' Message On Supreme Court Blockade

About an hour after the death of Justice Antonin Scalia was confirmed in February, Senate Majority Leader Mitch McConnell shaped the tone of his party’s refusal to consider any person President Obama would nominate for the open seat on the court.

“The American people should have a voice in the selection of their next Supreme Court Justice,” McConnell said in a statement. “Therefore, this vacancy should not be filled until we have a new president.”

The message that not allowing a popularly elected president to fulfill his official duties by nominating a Supreme Court justice was somehow letting the American people “have a voice” in the process became the rallying cry of Senate Republicans and the advocacy groups supporting them.

Occasionally, however, conservatives would slip from such messaging and revealthereal reason Republicans are trying to block any consideration of a Supreme Court nominee: partisan politics.

Sen. Jeff Flake of Arizona, who supports the party’s blockade but has never quite got on board with the party’s messaging, said soon after Obama nominated Judge Merrick Garland — who in any other time would be a decidedly consensus choice — that the Senate should confirm Garland in the lame duck session if a Democrat wins the presidency in November, thus averting the risk of having the next president pick a justice who is less appealing to Republicans.

Flake made a similar argument in an interview on Meet the Press on Sunday, saying that at least for him the “principle” in question was never “that the people ought to decide before the next election” but that “the principle is to have the most conservative, qualified jurist that we can have on the Supreme Court.”

“If we come to a point, I’ve said all along, where we’re going to lose the election or we lose the election in November,” he said, “then we ought to approve [Garland] quickly because I’m certain that he’ll be more conservative than a Hillary Clinton nomination come January.”

Of course, as Flake honestly points out, the point of the Senate GOP’s blockade of Garland’s nomination has never been a high-and-mighty matter of principle, but has instead been a high-stakes gamble that a Republican will win the White House and be able to fill Scalia’s seat on the court. (Something that has become even more of a gamble now that Donald Trump is the presumptive Republican nominee for president.)

Even the Judicial Crisis Network, the primary outside group working to support the GOP’s Supreme Court blockade, has quietly moved away from its original message that Republicans were stalling proceedings because “the American people should decide” who the next Supreme Court justice should be.

JCN’s chief spokesperson, Carrie Severino, told the Washington Post yesterday that her group still opposes a last-ditch confirmation of Garland. She didn’t mention her group’s previous “people should decide” message, instead framing it as a strategic political choice, predicting that if Hillary Clinton were to become president, she would simply renominate Garland because she would not realistically be able to get confirmation of a nominee who is “more loud and proud and out there.”

"If the idea is that Hillary Clinton would pick a new nominee, I question whether that’s something whether even her fellow Democrats want to see," she said. "I’m already seeing Democrats in red states who are nervous about Garland; they're not going to be calmer if a new nominee is chosen who pushes more demographic buttons, or is more loud and proud and out there."

Severino, whom Democrats are growing more familiar with as her group bombs their states with TV ads, insisted that the party would regret it if it responded to a Clinton victory by rejecting the overtures about Garland and pushing for a new "dream" nominee.

"Unless they win 60 votes in the Senate, they'd be hard-pressed to get an Eric Holder confirmed," she said. "I don’t think, at the end of day, they can confirm someone better from their perspective. And his tone and calm temperament means he’d be better as a swing vote."

Republicans' Self-Inflicted Disaster On The Supreme Court Keeps Getting Worse

Senate Republicans continue to hemorrhage support for their unprecedented decision to not hold any hearings on President Obama’s Supreme Court nominee, with a new poll from Public Policy Polling finding that Americans continue to oppose the GOP’s obstructionism.

The poll, conducted for Americans United for Change between May 4 and 5, finds that 58 percent of voters believe that the “vacant seat on the Supreme Court should be filled this year,” and that 65 percent think the “Senate should hold confirmation hearings for the nominee.”

Fifty percent of voters are less likely to vote for a senator who “opposed having confirmation hearings,” and Senate Majority Leader Mitch McConnell, one of the architects of the obstruction plan, has a mere 11-percent national approval rate.

One reason the GOP’s messaging on the court vacancy has continued to struggle has been the rise of Donald Trump. A majority of voters, 53 percent, according to the poll, “do not trust Donald Trump to nominate a new Supreme Court justice.”

Priebus: 'Donald Trump Is Not Wanting To Rewrite The Platform'

Republican National Committee Chairman Reince Priebus attempted to reassure Republicans wary of supporting Donald Trump today, telling conservative radio host Mike Gallagher that Trump is “not wanting to rewrite” the party’s platform and that the election comes down to “a conservative Supreme Court for generations.”

“Number one, Donald Trump is not wanting to rewrite the platform, okay?” he said. “He’s just not. So all that anxiety, just take it off the table. Not willing to do that. But, you know, get into that, tell people that, that you don’t want to rewrite, you like, you appreciate and agree with the platform the way it is.” (Trump has explicitly said that he would want to change the Republican platform on abortion.)

“Second thing is,” he said, “I think that they ought to release however many names — five, 10 names — people that would make great Supreme Court justices, from which you’re willing to choose a justice from. You know, something that the Federalist Society and the Heritage folks — you know, solid names that we can say, okay, this is what this is about. This is what this is about. It’s about a conservative Supreme Court for generations.”

Trump has promised to release a list created with the help of the conservative Heritage Foundation and the Federalist Society from which he will pick Supreme Court justices, but has yet to do so. Both organizations have been working to skew the courts far to the right. As Ed Kilgore wrote in New York magazine yesterday, “conservative fears about Trump's lack of fidelity to their supreme value of limited government could lead to demands for truly radical Court nominees who embrace the idea that right-wing judicial activism is needed to restrain the executive and legislative branches alike.”

When Gallagher asked if he thought that Trump’s campaign would actually release this promised list, Priebus replied that he didn’t know “where that’s at,” but “I think they’re open to it.”

Here We Go Again: Roy Moore Suspended For Defying Gay Marriage Rulings

On Friday, Alabama Chief Justice Roy Moore was suspended from his position after being charged with violating judicial ethics in his response to federal court rulings on same-sex marriage.

Despite a ruling by a federal judge in Mobile making same-sex marriage legal in Alabama last year, and in the face of a United States Supreme Court ruling last year making its legality the law of the land, Moore instructed probate judges throughout Alabama to ignore those higher courts and to refuse to issue licenses to same-sex couples.

Moore's actions led the Southern Poverty Law Center to file complaints with the commission, which acts much in the same way as a grand jury. When it receives a complaint, the commission investigates and decides whether to forward charges to the Alabama Court of the Judiciary.

This isn’t the first time Moore has been in this situation.

Back in 2003, he was removed from the office of chief justice for flouting a federal court ruling ordering the removal of a Ten Commandments monument he had installed in the courthouse rotunda.

The episode turned Moore into a martyr in the eyes of right-wing activists, although his newfound celebrity wasn’t enough to help his two unsuccessful campaigns for governor.

But in 2012 Moore returned to the Alabama Supreme Court, where he was once again lauded by the Religious Right when he tried to block same-sex marriages from taking place in the state in defiance of the federal courts.

Moore himself has likened the Supreme Court’s marriage equality ruling to Nazi oppression and has tapped Liberty Counsel chairman Mat Staver, the Religious Right activist who used bizarre legal arguments to defend Kentucky clerk Kim Davis in her unsuccessful attempt to flout the Supreme Court on marriage equality, to represent him in the case.

Just as Staver likened Davis to victims of the Holocaust, expect him to turn Moore, once again, into a symbol of the supposed persecution of Christians in America.

Indeed, far-right pastor Dave Daubenmire is already planning to hold a rally in Montgomery, Alabama, to support Moore and challenge the “uncircumcised philistine of the federal court system.”

Moore’s wife, Kayla Moore, who succeeded him in leading the Religious Right legal group Foundation for Moral Law, posted a song on her Facebook page yesterday comparing her husband to actual Christian martyrs.

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

When Justice Antonin Scalia died in February, the Senate GOP quickly vowed to keep his Supreme Court seat open until the next president takes office. They kept that vow even after President Obama nominated Merrick Garland, somebody whom Republicans had previously praised as a best-case scenario for a nominee from a Democratic president.

Now, after Ted Cruz dropped out of the Republican race last night, it’s all but certain that the next president will be Hillary Clinton, Bernie Sanders or Donald Trump. We can assume that Senate Republicans aren’t hoping that Clinton or Sanders will pick the next Supreme Court justice — which means that they are holding the seat open for Trump.

Trump has attempted to reassure movement conservatives concerned about his potential Supreme Court picks that he will choose somebody from a list drawn up by the conservative Heritage Foundation , with input from the Federalist Society. Those potential nominees are bad enough — but it's possible that Trump, who  isn’t known for keeping his promises, couild pick someone even worse.

However much Trump promises deference to the Heritage Foundation on the Supreme Court, the fact is that Senate Republicans are now hoping to hand over the nomination process to someone who believes the news he reads in the National Enquirer , chain emailsand racist Twitter feeds; is an enthusiastic birther conspiracy theorist; and has said that women should be punished for seeking illegal abortions.

Trump seems to lack even a basic understanding of how the legal system works, saying that judges sign bills, displaying complete ignorance of the central legal issue behind Roe v. Wade and opining that he would like to see the Obergefell marriage equality decision “unpassed.” Further showing his gravitas, he also engaged in right-wing conspiracy theories about Scalia’s death.

Senate Republicans are refusing to even hold a hearing on Garland’s nomination so that they can hold a Supreme Court seat open for months on end with the hope that Donald Trump will fill it. They have some explaining to do.

GOP Taking Supreme Court Orders From Radical Gun Group

Among the groups pressuring Republicans in the Senate to continue their blockade of President Obama’s Supreme Court nominee is Gun Owners of America, a gun lobby group that holds considerable sway on Capitol Hill despite its history of promoting wild conspiracy theories, frequent warnings to elected officials that they should fear assassination and deep ties to radical militia groups and white supremacists.

GOA has circulated a petition to its members claiming that Obama’s nominee, Merrick Garland, “would reverse your ability to own a gun” and “hates the Second Amendment,” basing its claims on exceedingly thin evidenceWhile these attacks on Garland’s record have been widely discreditedseveral Republican senators have pointed to the judge’s supposed disrespect for the Second Amendment as a reason to oppose him.

GOA’s general counsel, Michael Hammond, brought these claims to an op-ed in USA Today on Sunday, which GOA followed up with a video claiming again that Garland “hates the Second Amendment” and that if he gets on the court “good people will go to prison for exercising their constitutional rights.” Obama’s nomination of Garland, the video warns, is “the most significant step in his sordid trail towards transforming our nation.”

This paranoid and exaggerated language is typical of a group that has ties to the violent militia fringes of the Right and stays afloat by promoting conspiracy theories about various federal plots to snatch law-abiding people’s guns.

Tim Macy, the group’s chairman and the head of a “Second Amendment Coalition” on Ted Cruz’s presidential campaign, used similar rhetoric in March when he said that the Garland nomination was Obama’s “last-ditch effort” to “ruin the Second Amendment and destroy this country.”

The group’s executive director, Larry Pratt, went even further when he implied that Garland should fear assassination if he displeases gun groups. “Happily, the Second Amendment is all about people like Judge Garland, so there is a limit to how far he can go, I think,” Pratt told radical radio host Rick Wiles.

Pratt frequently makes similar comments. We wrote last year:

In an interview last year, Pratt said that being afraid of assassination was “a healthy fear” for members of Congress to have, because that’s what makes them “behave.” When Rep. Carolyn Maloney, D-NY, who had felt threatened by one of GOA’s members, complained about his comments, Pratt doubled down, saying that elected officials should fear “ the cartridge box” and accusing the congresswoman of being “ foolish” and having “a hissy fit .” Later, he boasted that Democratic proponents of stricter gun laws are “afraid of getting shot and they ought to be!”

On his weekly radio program last year, Pratt said that President Obama should learn from the example of Charles I, who was executed for treason in the 17th century:

Pratt’s view of the Second Amendment as a tool for a well-armed minority of insurrectionists to take on a government they disagree with comes straight from the fringe militia movement, which Pratt helped shape in the 1990s.

And that’s not all. According to the Southern Poverty Law Center, “In 1996, Pratt was forced to resign as co-chairman of Patrick J. Buchanan's presidential campaign when it was publicized that he had been a speaker at the 1992 Gathering of Christian Men in Estes Park, Colo., where he rubbed shoulders with neo-Nazis, Klansmen, adherents of the anti-Semitic Christian Identity theology, and other radicals.”

More recently, Pratt was a cheerleader for the armed militias who staged a standoff with the federal government at Cliven Bundy’s ranch in Nevada, saying that the incident came “very close” to provoking “a civil war between the people and the government.”

In his role at the helm of GOA, Pratt is happy to stir up conspiracy theories and anti-government paranoia in an effort to turn his group’s membership against any attempt at reasonable gun law reform.

He has humored radical radio hosts who have suggested that the Sandy Hook school and Aurora movie theater massacres were inside jobs designed by the government.

And, as we wrote last year, Pratt has plenty of conspiracy theories of his own:

… He has claimed that Obama is building up a private security force within the Department of Homeland Security to use for his own purposes “if he can’t actually commandeer the military”; warned that Obama will enlist undocumented immigrants into a private “ Praetorian guard” and advise police officers to go after people with conservative bumper stickers ; said Obamacare will ultimately “take away your guns”; feared Obama is stockpiling “anti-personnel rounds” because he “ seems to view the American people as the enemy”; claimed that Obama “had to steal” the 2012 presidential election and even buys into the fringe birther theory that holds that the president’s “real father” was labor activist Frank Marshall Davis.

Here is Pratt talking with fringe radio host Stan Solomon about the possibility that President Obama will start a race war:

This is who the GOP wants to listen to on the Supreme Court?

Democracy Awakens in Historic Mobilization Weekend

This past weekend something truly historic was set in motion. The 2016 Democracy Awakening was a first-of-its-kind event, uniting multiple movements working to promote voting rights and  money in politics reform as well as advocating for fair consideration of the president’s nominee to the Supreme Court. Environmentalists, social justice advocates, organized labor, and communities of faith all came together to demand a government that works for everyone, not just those with the biggest bank accounts who can buy access and influence at the expense of everyone else.

democracy awakening

The Democracy Awakening began on Saturday, April 16, with a day of workshops, trainings and film screenings and concluded on Monday April 18th with a Congress of Conscience where hundreds of people were arrested on the steps of the capitol as a massive crowd rallied alongside in solidarity. The Democracy Awakening peaked on Sunday afternoon, with a rally with thousands in attendance on the National Mall followed by a march in front of the Capitol and Supreme Court. Chants of “Money Out, People In” and “Do Your Job”  could be heard reverberating off federal buildings as marchers took over the streets.

democracy awakening

More than 300 organizations came together to participate in the Democracy Awakening and promote it to their members, demanding that Congress pass four particular bills, two that promote voting rights and two that promote money in politics reform. Additionally the Democracy Awakening demands that the Senate give fair consideration to the President’s Supreme Court nominee, which means hearings and an up-and-down vote.  Many of the organizations that collaborated on this event had previously never worked together, and there is a collective sense that things are just getting started, and that we won’t stop until we have a government that is of, by and for the people.

PFAW

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

Anti-choice groups have made no secret of the fact that they are pressuring Senate Republicans to continue their blockade of President Obama’s Supreme Court nominee, Merrick Garland, in the hope that a Republican-nominated justice will vote to undo Roe v. Wade.

Americans United for Life, the group that shapes the anti-choice movement’s legal strategy, made this argument explicitly in an email today asking members to pressure their senators to keep up the blockade of Garland.

Clarke Forsythe, the group’s acting president, claims in the email that the “only reason abortion advocates are pushing this nomination is to roll back the pro-life gains in courts and legislatures across the country” and promises that “the right Supreme Court” will roll back Roe.

AUL is one of a number of anti-choice groups, including the Susan B. Anthony List, Concerned Women for America, the Family Research Council, Priests for Life, the clinic protest group Pro-Life Action League and David Daleiden’s attorneys at Life Legal Defense Foundation, who have launched a website targeting Judiciary Committee Chairman Chuck Grassley, R-Iowa, and Sen. Rob Portman, R-Ohio, urging them to continue to stall Garland’s nomination.

Forsythe writes, under the subject line “You Have the Power to Help Roll Back Roe v. Wade”:

Dear Friend,

Do you believe Roe v. Wade can be rolled back? At Americans United for Life, we know that the answer is YES … with the right Supreme Court.

For more than 40 years, we pro-life Americans have been working to overturn the destructiveness of Roe v. Wade and Doe v. Bolton, the twin cases that brought incredible devastation to mothers and their unborn children, making both vulnerable to the profiteering of a greedy abortion industry. With the death of Justice Antonin Scalia, the Supreme Court hangs in the balance today, making it vital that NO appointment to the high court occur until after the voters weigh in on Election Day. You can help make that happen.

Please click here to contact your U.S. Senators, telling them to wait until after the election to deal with the opening on the Supreme Court.

All that AUL has been working for since 1971 is at stake in President Obama’s attempt to put a fifth pro-abortion justice on the Supreme Court. Don't let them crush democracy on the abortion issue for another two or three decades. No president has been more firmly committed to the abortion industry than Barack Obama, making his pick for the Supreme Court, Judge Merrick Garland, the wrong choice to be added to the fragile balance in a fractured court.

Please click here to contact your U.S. Senators now.

Judge Garland is President Obama’s pro-abortion pick to tempt some Republicans to act now to fill the vacancy on the Supreme Court. But it’s important to remember that President Obama, Vice President Biden and even Sen. Chuck Schumer, all urged the Senate to hold the line against Supreme Court picks late in a president’s term. The only reason abortion advocates are pushing this nomination is to roll back the pro-life gains in courts and legislatures across the country.

Please contact your Senators today, asking them to let Americans have a voice in deciding the future of the Supreme Court, through their choice of leadership. Click here to contact them now, and please forward this to friends and family so that we all can have a voice in whether all people are welcomed in life and protected in law.

With so many Justices on the Supreme Court nearing retirement, the time is now to let your Senators know that it matters to you who sits on the nation’s Supreme Court.

Thank you for standing with Americans United for Life at this important time. We can make a difference.

Sincerely,

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

A Sleazy or Principled Approach to Judicial Confirmations?

Several days ago, USA Today reported on some comments made by Senator Patrick Leahy about the Senate GOP’s refusal to consider Merrick Garland’s nomination to the Supreme Court.  Judiciary Committee chairman Chuck Grassley has fallen in line behind the order of his boss, Mitch McConnell, and the demands of far-right extremist groups like the Judicial Crisis Network, who make wildly untrue claims about Judge Garland’s record.  GOP senators’ decision to hide behind those outside attacks and refuse to give Judge Garland a chance to defend himself is “sleazy,” Leahy said.  He also urged Grassley to show some independence from partisan interests, as Leahy did when he chaired the Judiciary Committee in parts of George W. Bush’s presidency.

Conservative Ed Whelan challenged Leahy’s positive characterization of his chairmanship on the National Review website in a piece he called “Patrick Leahy (D-Sleaze).”  Whelan criticized then-Chairman Leahy for not holding hearings on a number of Bush’s nominees.  One might think the committee was letting vacancies pile up around the country: that Leahy was fiddling while the American court system burned.  In fact, at this point in Bush’s last two years, the Democratic-controlled Senate had already confirmed 45 circuit and district court nominees, while the current Senate has confirmed a mere 17.  During the entire two years of the 110th Congress, the Senate confirmed 68 judges, a number that Chuck Grassley and Mitch McConnell show no interest in even trying to match.

In fact, it is Grassley and McConnell who are fiddling.  When the current Congress began, there were 40 circuit and district court vacancies, a number that has increased to 74 due to GOP inaction.  (If you include the Court of International Trade, the increase is from 43 to 78.)  In the same period, judicial emergencies have nearly tripled, jumping from 12 to 34 on April 14 (a change in how the Administrative Office of U.S. Courts weights cases went into effect the next day, affecting the number of emergencies and thereby complicating comparisons after that date).  In contrast, vacancies and emergencies went down in 2007-2008 because Democrats processed judicial nominations in a responsible manner.  Leahy also chaired the committee for 17 months in 2001-2002, during which the Democratic-controlled Senate confirmed 100 of Bush’s judicial nominees.  Circuit and district court vacancies went down during that period from 109 to 60.  When it comes to taking seriously their constitutional responsibility to make sure our federal judiciary is sufficiently staffed, the difference between the two parties could hardly be starker.

The contrast is not limited to the confirmation of judicial nominees.  In Bush’s last two years, Sen. Leahy held 22 nominations hearings, including one as late as September 23, 2008 … just a few weeks before the presidential election to replace the term-limited George Bush.  Chairman Grassley has scheduled a confirmation hearing for April 20, the first since January, only the 13th of the current Congress, and he has suggested that he may shut the process down in July.

With 33 circuit and district court nominees in committee, and only five of them having had a hearing (but not until April 20), talk of such an early shutdown is obscene.  Seven of the nominees who have yet to be granted a hearing are circuit court nominees, most of them nominated more than two months ago.  Three of the circuit court nominees already have their “blue slips” from their home state senators.  The fact that this is an election year should not prevent a hearing for these circuit court nominees:  When President Bush nominated Steven Agee to the Fourth Circuit in March of 2008, Sen. Leahy scheduled a hearing seven weeks later, and a committee vote just two weeks after that.

And certainly no one could believably question Leahy’s fairness.  When President Obama took office, Chairman Leahy maintained the same rules and practices he had used with Bush’s nominees.  For instance, as under Bush, he opted to require the “blue slip” approval of both home-state senators before holding a hearing on a nominee, something not in the committee rules but rather a prerogative of the chair.  This led to a number of highly qualified Obama nominees being denied a chance to publicly respond to the often unfair and inaccurate attacks being made against them by GOP senators.  Other times, the Republican senators gave no public reason for their opposition, yet still used Leahy's blue slip  practices  to deny hearings to targeted nominees.  He even allowed Kansas’s GOP senators to change their mind after a hearing and, at their request, did not allow a scheduled committee vote on Tenth Circuit nominee Steve Six to take place.  The committee records are filled with Leahy’s sharp criticism of how qualified nominees were being denied hearings this way, including ones strongly supported by their one Democratic home state senator, including then-Majority Leader Harry Reid.  Nevertheless, he did not change his blue slip practice as he could have done unilaterally.

Whelan also criticizes Senator Leahy as “sleazy” for not getting controversial Fifth Circuit nominee Leslie Southwick confirmed quickly enough and then for opposing his nomination altogether.  As chairman, Sen. Leahy could have simply chosen not to give him a hearing.  In fact, at the confirmation hearing, Sen. Hatch specifically thanked Chairman Leahy for scheduling it over the criticism from “far left groups.”  Giving a nominee an opportunity to address senators’ concerns and defend their record in a public forum is not “sleazy.”

As Sen. Leahy pointed out last week, what’s “sleazy” is the way that the Republican-controlled Senate is mistreating the president’s Supreme Court nominee.  And while well-financed far-right groups are working overtime to keep GOP senators in line, two thirds of Americans are rejecting that position and support a hearing for Chief Judge Garland.  Chairman Grassley would do well to listen to the American people.

PFAW

More Evidence Grassley And McConnell Only Care About The Far Right

A new NBC News/Wall Street Journal Poll released Tuesday led to a slew of headlines reflecting the fact that the majority of Americans want the Senate to do its job and begin working to confirm President Obama’s Supreme Court nominee, Merrick Garland.

“Democrats are winning the Supreme Court fight over Merrick Garland. Big time,” announced the Washington Post

By a 22-point margin (52-30) voters would like to see “the Senate vote on [Justice Scalia's] replacement” this year. When the question was first asked in February, this margin was only a single point (43-42).

Yet Republicans and conservative voters continue to isolate themselves from the rest of the electorate with their intransigence on taking any action on Garland’s nomination.

This is the conundrum for Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, and Majority Leader Mitch McConnell (R-KY). They can mollify the radical base of their party or they can do their jobs, consistent with the will of the people. Thus far their choice has been clear.

Grassley once again swore fealty to the radical right on a conference call with the anti-choice organization Susan B. Anthony List on Monday night, promising them “we aren’t going to have a hearing.”

Right now, despite the polling, Republican strategists believe their elected leaders' intransigence serves their own electoral benefit. Josh Holmes, who ran McConnell’s 2014 reelection campaign told the Wall Street Journal, “Any time you are looking at an electorate where you want to ensure the base is motivated to support a candidate, an issue like this helps.” He continued, “by almost any measure that we’ve seen thus far, the voters who fall into that swing category that determine an election just aren’t that interested in the Supreme Court fight.”

Holmes and many Republicans are being misled by the data. Voters want a functional government and elect senators to do a job. They are rightfully repulsed when it isn’t done.

Voters aren’t thinking about the confirmation of Merrick Garland as a fight between liberal and conservative policy outcomes. Instead it is about which party is causing dysfunction in Washington. Republicans are proudly raising their hands to take credit for the chaos, fulfilling the wishes of their base.

However, with polling data trending against them, McConnell and Grassley are putting several of their colleagues in close races in untenable positions. As a greater majority of voters push for action on the nomination, senators in close races are bound to begin to question their leadership’s obstructionist strategy.

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

Sen. Chuck Grassley, R-Iowa, joined a conference call of anti-abortion activists hosted by the Susan B. Anthony List last night to assure them that he would continue to hold the line and refuse to hold a Judiciary Committee hearing on President Obama’s Supreme Court nominee, Merrick Garland.

Also joining the call were Republican Sen. Steve Daines of Montana and Sen. James Lankford of Oklahoma, who delivered an opening prayer.

Grassley told the activists that when someone asked him for an update on the nomination last week, he said that “an update would suggest that something has changed” and that he still intends to block any nominee until the next president takes office.

He said that preventing “another liberal” from joining the Supreme Court was necessary to keep “even the reasonable restrictions on abortion that have been enacted into law through the democratic process” from being “swept away.”

Grassley cited a recent National Right to Life poll which he said found that “about 80 percent of Americans don’t believe that abortions should be available after the first trimester.” (It was more complicated than that.)

“But we know that justices who embrace the view that the Constitution is a living document don’t share that view that you and I share,” he said. “The American people, through their elected representatives, should be making these policy decisions, not unelected judges. These are life-and-death issues that we’re fighting for. They show just how important this fight over who’s going to fill Scalia’s seat is.”

In response to a question from SBA List president Marjorie Dannefelser, Grassley suggested that news reports characterizing Garland as moderate are a misleading ploy by the media (one that, if he was correct, he himself and some of his Republican colleagues would be in on).

When Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan were nominated, he said, “always in these headlines at the time they were nominated, that adjective was the word ‘moderate,’ just like Garland. Well, we know how those four have turned out. So don’t believe what you read in the press about people’s basic philosophy, because they got it all wrong and probably intentionally all wrong.”

When Dannenfelser asked Grassley to respond to the argument that the Senate is neglecting its job by refusing to even consider Garland’s nomination, Grassley repeated his claim that it would actually be a waste of taxpayer money to give Garland a hearing.

“Well, we could have a hearing, we aren’t going to have a hearing, but let’s just suppose we could have a hearing,” he said. “And I know 52 people, at least 52 in the Senate, aren’t going to approve it. So you have a hearing and you spend a lot of taxpayers’ money gearing up for it, you spend a lot of time of members, a lot of research that has to be done by staff, and then it ain’t going to go anyplace.”

“It’s like getting dressed up for the prom but you don’t get to go,” Dannenfelser said.

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

As we and others have noted, the Judicial Crisis Network, the primary outside group backing the Senate GOP’s blockade of President Obama’s Supreme Court nominee, is funded almost entirely by a dark-money group connected to a single family of conservative donors.

On Friday, Open Secrets uncovered that the same dark-money network funding JCN is behind another group that is working to oppose Merrick Garland’s nomination: the Foundation for Accountability and Civic Trust (FACT).

Open Secrets reports that FACT, which styles itself as a right-wing alternative to Citizens for Responsibility and Ethics in Washington (CREW), receives all of its funding through Donor’s Trust, a donor-advised fund that acts as a “pass-through vessel” for conservative funders, making the source of contributions all but impossible to trace. But Open Secrets found evidence linking FACT to the Corkery family, who are behind a number of conservative groups including JCN. JCN and FACT share a treasurer, Neil Corkery, and FACT has the same front address as a number of Corkery-linked groups.

The executive director of FACT and the sole paid employee listed on its most recent tax filing is Matt Whitaker, a former U.S. Attorney from Iowa who we here at Right Wing Watch remember from his unsuccessful run for his home state’s Republican Senate nomination in 2014 (it ultimately went to now-Sen. Joni Ernst). When asked at a debate what criteria he would use to determine whether to support or attempt to block President Obama’s federal judicial nominees, Whitaker said that he would ask if nominees are “people of faith” and “have a biblical view of justice.”

“As long as they have that worldview, then they’ll be a good judge,” he said. “And if they have a secular worldview, where this is all we have here on earth, then I’m going to be very concerned about how they judge.”

From the Open Secrets report on FACT:

One right-leaning group has weighed in more quietly: The Foundation for Accountability and Civic Trust (FACT) has demanded Harvard University release records having to do with Garland’s role in the debate in the early 1970s over whether to allow ROTC recruiters on that campus. In late March, FACT’s executive director, Matthew Whitaker, was quoted saying that “Americans have a right to know about Garland’s views of the military.”

Turns out JCN and FACT have something in common, beyond a penchant for keeping the names of their donors secret: Neil Corkery, who is treasurer of the judicial group and also the treasurer and a member of the board of directors at FACT, a 501(c)(3) organization.

Its funding — $600,000 in 2014, according to the only tax return it has filed to date — comes entirely from a conservative donor-advised fund called DonorsTrust, which means it could come from anywhere. DonorsTrust is a pass-through vessel that manages the charitable contributions of wealthy individuals and foundations to organizations that are “dedicated to the ideals of limited government, personal responsibility, and free enterprise,” according to its website, while allowing the donors to remain anonymous. Charles Koch is among the many conservatives who have filtered money through DonorsTrust.

In other words, an organization “dedicated to promoting accountability, ethics, and transparency” gets 100 percent of its funds from a group that exists mainly as a vehicle for donors to elude transparency.

Meanwhile, Corkery adds FACT to a long list of nondisclosing nonprofits at which he holds, or has held, a key position, often treasurer, and which often have overlapping slates of directors or officers. For instance, at two other groups where Corkery is treasurer, the Judicial Education Project and Catholic Voices, a close family ally by the name of Dan Casey is president and director, respectively. Casey is also the secretary of JCN. At the Sudan Relief Fund, Corkery is president, Casey is treasurer, and Ann Corkery, Neil’s wife, is a director.

Ann Corkery is also president of the Wellspring Committee, from which JCN receives substantial funding, including more than $6.6 million in 2014; Kathleen Corkery, the couple’s daughter, is on Wellspring’s board of directors, and its secretary-treasurer is Casey’s son. Neil Corkery draws salaries from several of the groups where he’s an office; Ann is paid by Wellspring. (Venn diagram in the works.)

Many of the groups list the same Georgetown address as their office, with different suite numbers. In reality, the address is that of a UPS store, and the suite numbers are post boxes. FACT’s listed address, in downtown Washington, D.C., has no markings; it appears to be an address that is cited by more than one organization without actually being physically used by any of them, with a receptionist who answers the phone with the names of various groups depending on which line is called.

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

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

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

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

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

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

 

UPDATE: Politico reports:

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

 

Edit Memo: Merrick Garland, The Supreme Court and Money in Politics

To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: April 15, 2016
Re: Merrick Garland, The Supreme Court and Money in Politics

Perhaps no area of American constitutional law has seen greater upheaval by the Supreme Court in the past decade than the issue of money in politics. Similarly, perhaps no set of Court rulings has had a more significant – or more damaging – effect on the very nature of our nation’s electoral democracy. While a narrow 5-4 majority on the Roberts-Alito Court has become infamous for bending the law and twisting logic in order to rule in favor of corporate and other powerful interests in a variety of contexts, its decision in Citizens United stands out and has generated a national movement to undo it.

Hence, there is great interest in how President Obama’s Supreme Court nominee has approached these issues. This report primarily analyzes D.C. Circuit Judge Merrick Garland’s record on cases involving money in politics. It also looks at how he has ruled in non-political contexts when corporate or other interests have sought to use the First Amendment as a way to evade standard business regulations.

The cases show that Judge Garland bases his rulings not on theory and ideology, but instead on how the world really works. He shows deep respect for the legitimacy of government regulation to protect the public interest, and he is careful not to address issues that do not need to be addressed. He does not use the bench as a platform to impose his personal ideology onto the law and the American people. Although it is difficult to predict precisely how a judicial nominee will rule, having Judge Garland on the Supreme Court in the seat formerly occupied by Justice Scalia makes it significantly more likely that the Supreme Court will be more receptive to upholding legislation at the state and federal level to deal with the serious problem of money and politics.

Judge Garland’s Record on Money In Politics

Judge Garland has written or joined a number of decisions on money and politics. In his nearly two decades on the bench, perhaps the most important opinion on money in politics that Judge Garland has authored is one from just last year called Wagner v. FEC (2015). Judge Garland wrote a carefully considered opinion upholding a 75 year old law prohibiting federal contractors from contributing money to federal candidates, parties, or committees.

In a post-Citizens United and post-McCutcheon world, it seems that few if any reasonable limits on election contributions or spending are safe from attack. But the D.C. Circuit upheld the “pay to play” law in an opinion that was starkly different from Citizens United in its focus on how the real world works and its respect for Congress’s ability to craft appropriate campaign finance laws that are responsive to serious problems.

The plaintiffs were three individuals who were federal contractors claiming the ban violated their First Amendment rights. Working as he had to within the conservative Roberts Court’s absurdly narrow definition of “corruption,” Judge Garland drafted a carefully structured opinion showing how the ban serves two important governmental interests: (1) preventing real and perceived corruption; and (2) protecting merit-based government administration.

He went out of his way to take the reader (and his fellow judges) on a detailed historical tour of the corruption caused by money from contractors and those similarly situated that has too often infected our political system. For page after page after page in the opinion, Judge Garland presented one example after another, clearly showing the serious problems that motivated Congress to adopt the ban. As Garland wrote, “this historical pedigree is significant,” because it leads to greater judicial deference to congressional judgments. But rather than stop there, he continued the historical tour, this time based on the experiences of a number of states. He accurately described these as “an impressive, if dismaying, account of pay-to-play contracting scandals.”

When the contractors argued that the modern formalized system of competitive bidding makes it immune from political influence, Judge Garland did not accept that on faith. He looked at how the system actually works, including how political appointees can influence the decisions of independent contract officers, and how members of Congress can get involved in the process.

Judge Garland’s factual presentation in Wagner was so thorough and his subsequent legal reasoning so persuasive that his opinion was joined by every single one of the 11 active judges on the D.C. Circuit, a remarkable feat for such an important case in an area of the law that has seen tremendous change in the past few years. Rather than close his eyes to how the political world really works, he wrote an opinion strongly endorsing the authority of Congress to adopt the contractor contribution ban.

In addition to attacks on campaign contribution limits, the past few years have also seen attacks on disclosing where campaign-related money is coming from. Opponents paint a picture suggesting that disclosure leads to retribution by those who disagree with them. While Judge Garland has not written any major opinions in cases involving constitutional challenges to election spending disclosures, he did write one on lobbying disclosures, where the concerns were similar and where the court upheld disclosure requirements.

In National Association of Manufacturers (NAM) v. Taylor (2009), NAM challenged revised federal lobbying disclosure requirements as violating the First Amendment. Congressional lobbyists have long had to disclose who they are being paid to lobby for and the specific issues they are lobbying about. Under the old law, when they were hired by a coalition or association, they only had to report that entity as their client, not its constituent members. That changed in 2007, when Congress amended the law to give the public a better idea of who was actually behind the large sums of money spent to shape our nation’s laws. Lobbyists for such an association would now have to report not just the entity as the client, but also any member of that entity that spent over a certain amount and that had a major role in planning, supervising, or controlling the lobbying activities.

NAM claimed that the disclosure requirement would chill the participation of its members in debate over public policy, out of fear for the consequences if their identities became known. Judge Garland wrote the panel opinion rejecting the claim, with an opening that was short and to the point:

More than fifty years ago, the Supreme Court held that the public disclosure of "who is being hired, who is putting up the money, and how much" they are spending to influence legislation is "a vital national interest." United States v. Harriss, 347 U.S. 612, 625-26, 74 S. Ct. 808, 98 L. Ed. 989 (1954). Today, we consider a constitutional challenge to Congress' latest effort to ensure greater transparency, the Honest Leadership and Open Government Act of 2007. Because nothing has transpired in the last half century to suggest that the national interest in public disclosure of lobbying information is any less vital than it was when the Supreme Court first considered the issue, we reject that challenge.

With regard to supposedly chilled speech, Judge Garland pointed out that NAM had not presented any evidence that it had suffered from any sort of violence or harassment due to its own, long-disclosed lobbying activities. He also noted that even though NAM’s website publicly lists more than 250 member organizations, there was no evidence of injury to any of them due to NAM’s lobbying.

He also made the tie to election campaign contribution disclosures explicit:

[T]he risks that NAM claims its members would suffer if their participation in controversial lobbying were revealed are no different from those suffered by any organization that employs or hires lobbyists itself, and little different from those suffered by any individual who contributes to a candidate or political party. If that kind of risk rendered [the law] unconstitutional, it would invalidate most compelled lobbying disclosures in contravention of Harriss, and most compelled campaign finance disclosures in contravention of Buckley.

Importantly, Judge Garland wrote for a unanimous panel that also included judges nominated by Presidents Reagan (Douglas Ginsburg) and George H.W. Bush (Karen Henderson).

Judge Garland has also been part of money-in-politics cases where he didn’t write the opinion (or a separate concurrence or dissent). An important one was Shays v. FEC (2008), where he was part of a unanimous panel rejecting FEC regulations as not strong enough to be consistent with the text and purpose of the 2002 McCain-Feingold law (more formally known as the Bipartisan Campaign Reform Act of 2002, or BCRA). The opinion was authored by Judge David Tatel (a Clinton nominee) and joined by Garland and Judge Thomas Griffith (a Bush-43 nominee).

Three regulations were being challenged. The first was the FEC’s test of what advertisements count as “coordinated communications,” through which candidates and outside spending groups would be evading contribution limits and other restrictions. The panel upheld part of the definition but rejected other parts, concluding that the rule actually “provide[d] a clear roadmap” for using soft money in federal elections in direct contradiction to the law’s purpose.

The second challenge was to the FEC’s definitions of “get out the vote activities” and “voter registration activities,” which the McCain-Feingold law prohibited state parties from using “soft money” to pay for. The court struck down the FEC’s definition as having enormous loopholes that would let state parties easily evade the restriction. For instance, the agency’s definitions limited VR (voter registration) and GOTV (get out the vote) activities to efforts aimed at individuals, and therefore did not count mass mailings or robocalls. The definitions also did not count actively encouraging someone to register or to vote as VR or GOTV unless the party actually assisted them to do so.

The third challenged rule let federal candidates solicit soft money at state party fundraisers, which the panel found to be in direct contradiction to the part of the statute prohibiting just that.

This case – one of statutory interpretation rather than of constitutional law – suggests that Judge Garland takes seriously the congressional intent behind laws regulating money in politics. This was actually the second time that these rules implementing McCain-Feingold had been rejected by the D.C. Circuit (Judge Garland was not on the panel in that earlier stage). So it is perhaps with a hint of impatience that the panel wrote:

We remand these regulations in the hope that, as the nation enters the thick of the fourth election cycle since BCRA's passage, the Commission will issue regulations consistent with the Act's text and purpose.

One important decision weakening restrictions on money in politics that Judge Garland joined but didn’t author was SpeechNow.org v. FEC (2010), which is often credited or blamed for the creation of super-PACs. In this case, the court, acting en banc, struck down congressional limits on contributions to entities (like SpeechNow) that make independent expenditures to expressly advocate the election or defeat of candidates running for federal office, but do not make direct contributions to candidates or parties.

The court issued its ruling just a few weeks after Citizens United. That timing is important, because every judge on the D.C. Circuit regardless of ideology agreed that the changes wrought by that seminal Supreme Court case mandated the result in SpeechNow. Citizens United stated that, as a matter of law, independent expenditures do not corrupt or create the appearance of corruption (which the Roberts-Alito Court defines extremely narrowly); and the ruling reaffirmed the Court’s misguided view that fighting corruption or its appearance is the only reason Congress may set contribution limits. With these propositions as binding legal precedent, the D.C. Circuit unanimously agreed that contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption. In other words, the federal government has no anti-corruption interest at all (the only interest the Court recognizes) to counterbalance what the Court characterizes as a limitation on First Amendment rights.

Every judge, including Garland, joined the opinion, which was authored by Judge David Sentelle. SpeechNow is a case that tells us much more about the Justices on the Supreme Court than it does about any judge on the D.C. Circuit. In fact, it tells us very little about the views of Judge Garland or any of the other judges on the appellate court, other than that they faithfully obeyed the recent and binding precedent in Citizens United.

Not all cases involving money in politics get decided on the merits; sometimes the court rules that the plaintiffs lack standing to sue. Judge Garland generally agrees with his colleagues when this happens, but he tends to be very careful in how he approaches the issue. For instance, he concurred in the judgment of the panel decision in a 2007 case called Citizens for Responsibility & Ethics in Washington v. FEC. His fellow judges go on for several pages providing several reasons for finding that CREW lacks standing. In contrast, Judge Garland’s concurrence states in its entirety:

I agree with the court that there is no meaningful distinction between this case and Common Cause v. FEC, 323 U.S. App. D.C. 359, 108 F.3d 413 (D.C. Cir. 1997), and on that ground conclude that CREW lacks standing to litigate its challenge to the Commission's decision.

He had a similarly short concurrence on standing in an earlier case called Wertheimer v. FEC (2001). By basing his judgments on as narrow a basis as possible, Judge Garland avoided addressing issues he felt did not need to be addressed. In an era when conservative judges are increasingly closing the courthouse door to Americans whose rights have been violated, Judge Garland seems to place a priority on not closing any doors unnecessarily, and on avoiding needlessly or unintentionally laying the groundwork for future restrictions on standing. This is of great importance across all areas of the law, including money in politics.1

Judge Garland’s Record on Commercial and Corporate Speech

Related to the analysis of Judge Garland’s approach to money in politics issues is his record on the D.C. Circuit with respect to First Amendment protections accorded to commercial and other corporate speech. These interests have played an important role both in the Supreme Court’s analysis of money in politics issues and in its analysis of corporate claims of First Amendment bars to regulations promulgated to protect the public interest.

As on other legal issues, Garland’s opinions and votes demonstrate a respect for precedent and a careful analysis of the facts and the law with respect to claims that government regulation impedes corporations’ First Amendment rights. Importantly, in several cases, he has rejected efforts to expand constitutional protection for commercial and corporate speech beyond recognized limits. And he has joined opinions upholding government requirements that corporations affirmatively disclose certain information despite their claims that this constituted impermissible compelled speech.

In perhaps the most important such case, Judge Garland joined both the panel opinion and the subsequent opinion by the full D.C. Circuit upholding government requirements that corporations disclose information of importance to consumers who want to “buy American” or who are concerned about food safety. Specifically, in American Meat Institute v. USDA (2014), the court in that case upheld an Agriculture Department requirement that companies disclose country-of-origin information for certain meat products, rejecting the claim that the requirement constituted improper compelled speech prohibited by the First Amendment. The court explained that under its interpretation of Supreme Court precedent, a deferential standard of review applied because a corporate speaker’s interest in opposing the forced disclosure of factual information is minimal. The rule was justified, the court explained, by the government’s interest in consumers receiving information to help them make informed purchasing decisions (e.g. avoiding purchases of meat products from countries with food-borne illnesses).

This case is particularly important because the opinion of the full circuit court overruled earlier panel rulings making it much easier for corporations to challenge agency regulations as unconstitutional “compelled speech.” Panels had earlier upheld challenges to graphic cigarette warnings, disclosure requirements with respect to conflict minerals, and requirements that employers put up posters spelling out their employees’ legal rights.

Judge Garland has joined several other opinions largely upholding government regulation of commercial speech, although invalidating several restrictions that were not justified under existing precedent. In POM Wonderful LLC v. FTC (2015), Garland joined a unanimous opinion that largely upheld a Federal Trade Commission finding that a company’s advertising claims that daily consumption of certain beverages would produce specific health benefits were false and misleading, based on careful analysis of the relevant facts and controlling Supreme Court precedent on commercial speech, particularly Central Hudson Gas & Elec. Co. v. Public Serv. Comm.(1980) . But the panel, including Garland, ruled that the FTC went too far under Central Hudson in requiring that each future disease-related representation by POM Wonderful would have to be justified by two randomized and controlled human clinical trials, when one would do. (The company lost its argument that none should be required). In TransUnion LLC v. FTC (2002), he joined a unanimous decision upholding an FTC requirement restricting credit reporting businesses’ ability to disclose and reuse consumer financial information. The panel rejected the company’s claim that the consumer privacy regulation violated its First Amendment free speech rights.

In Pearson v. Shalala (1999),  Garland joined a unanimous opinion rejecting a U.S. Food and Drug Administration decision prohibiting dietary supplement marketers from making particular health claims that were not supported by significant scientific agreement. Importantly, the FDA did not believe that the supplements at issue were in any way harmful to the public, so public health was not an issue. The FDA also was not contending that the health benefit claims were definitely false, but that they weren’t supported by the science, and that consumers could be misled into thinking otherwise. The panel cited precedent where the Supreme Court ruled that requiring advertisers to include disclaimers to potentially misleading statements was constitutionally preferable to prohibiting the statements altogether. In an opinion written by Judge Laurence Silberman and joined by Garland and Judge Patricia Wald, the panel ruled that the agency’s outright prohibition of the insufficiently supported health claims violated the First Amendment, since there were less restrictive alternatives available (such as a disclosure that the claim has not been approved by the FDA).

In several additional cases, Judge Garland has written or joined opinions rejecting efforts to expand the First Amendment’s free speech guarantee into a tool to evade federal agencies’ standard regulations or enforcement actions. For example, Garland wrote the unanimous opinion in Trudeau v. FTC (2006) rejecting a lawsuit against the FTC for issuing an allegedly misleading press release about the settlement of a false advertising case, commenting that the First Amendment did not give the plaintiff “the right to take a red pencil to the language of the FTC’s press release.” See also Grid Radio v. FCC (2002) (joining a unanimous ruling rejecting the claim that the First Amendment protects a right to broadcast low-power radio without a license); Tribune Company v. FCC (1998) (joining a unanimous opinion upholding an FCC rule limiting ownership of a newspaper and television station by the same owner in the same market and explaining that the First Amendment does not give the newspaper owner an absolute right to broadcast speech).

Conclusion

President Obama has selected a highly qualified judge to replace Justice Scalia on the Supreme Court. In the area of money in politics and related areas, Judge Garland is not an ideologue who seeks to use the federal bench as a political weapon to empower those who are already powerful and to game our democratic system in favor of the wealthy and powerful. He would be a positive addition to the Supreme Court, including with respect to money and politics.

 

 

 

1. Judge Garland also recently wrote the opinion for a unanimous panel ruling that former Idaho Sen. Larry Craig had unlawfully used campaign funds to pay for his personal legal efforts to withdraw his guilty plea regarding an embarrassing incident in a Minneapolis – St. Paul airport bathroom. Joining Judge Garland in this unsurprising 2016 ruling in FEC v. Craig for U.S. Senate were Judges Griffith and Sentelle.

Who Is Chuck Grassley Listening To?

Despite holding a “friendly” meeting with Merrick Garland this morning, Senate Judiciary Committee Chairman Chuck Grassley remains adamant that he will not hold hearings on President Obama’s Supreme Court nominee.

On the ground in Grassley’s home state of Iowa, a clear rift is being exposed between those who are encouraging Grassley’s continued intransigence and the constituents who are calling for their senator to do his job.

Notably this week, Keith Uhl, a lawyer in Des Moines who helped manage Grassley’s first campaign for the Senate, asked his former boss to proceed with the normal course of events for a Supreme Court appointments and hold hearing and a vote on the president’s nominee.

One the other hand, the anti-gay head of the Family Leader, Bob Vander Plaats, wrote an op-ed in the Des Moines Register thanking Grassley for not acting on Garland’s nomination and for “advising that the people need to speak before any further appointments are constitutionally confirmed to the Supreme Court of the United States."

For the moment Grassley has made his choice, making his bed with a radical right-wing demagogue. Vander Plaats previously advocated that Congress defund courts whose judges rule in favor of marriage equality. He warned that God might not bless America because a Wiccan led a prayer at the Iowa state capitol. Vander Plaat also praised Russian President Vladimir Putin for stating, “don’t bring this homosexual propaganda into my country for the Olympics.” Vander Plaats also has compared a gay pride event to the Boston Marathon bombing.

Grassley, who once lamented that Democrats were siding with their base over the wishes of the American people, has made the decision that the support of Bob Vander Plaats and other conservative movement figures is more important than fulfilling his constitutional duties.

The difference could not be illustrated more starkly: a former campaign manager asking his boss to do the job he helped elect him to do, versus a radical conservative who would like to see judges’ salaries subject to whether they issue decisions he agrees with.

Grassley has clearly made the wrong choice.

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