Supreme Court

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.

Grassley Admits Conservative Groups Are Behind His Supreme Court Blockade

In 2005, Sen. Chuck Grassley, R-Iowa, accused Democrats of being beholden to “far left pressure groups” and “out of touch with the vast majority of Americans” when it came to judicial confirmations.

Today, Grassley admits that “conservative groups are very much behind” his obstructionism as chairman of the Senate Judiciary Committee, where he has refused to so much as hold a hearing on President Obama’s Supreme Court nominee Merrick Garland.

2005:

“The reality is that today's Democrat Party seems to be beholden to far left pressure groups who know their radical agenda for America can only be implemented by judicial fiat. I am sad to say that the other party has expressed an unquestionable loyalty to what is probably their base but a base out of touch with the vast majority of Americans.”

2016:

Conservative groups are very much behind what we’re trying to do,” Grassley said following a town hall event at Northwestern College in Orange City. “They figure that if this president appoints somebody, you’re going to have a lot of negative freedom-of-religion decisions, a lot of negative gun decisions, a lot of negative political-speech decisions. So we want to make sure the court doesn’t veer to the left.”

Grassley said on the Senate floor yesterday that he only wants to confirm justices who “vote in a way that advances conservative policy.”

We profiled some of the conservative groups that Grassley admits are behind his Supreme Court blockade in a recent report.

 

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

By Miranda Blue, Elliot Mincberg and Brian Tashman

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

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

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

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

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

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

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

William H. Pryor

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

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

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

Diane Sykes

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

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

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

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

Steven Colloton

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

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

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

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

Mike Lee

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

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

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

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

Ted Cruz

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

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

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

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

The New Grassley Rule: Justices Must 'Vote In A Way That Advances Conservative Policy'

Iowa Sen. Chuck Grassley, after flip-flopping on his long-held view that the Senate should do its job and confirm the president’s judicial nominees, went to the Senate floor Tuesday afternoon and delivered a rant on the state of the Supreme Court in which he staked out an even more extreme pro-obstruction position, declaring that he only wants to allow conservative policymakers on the court.

Grassley, who as the chairman of the Senate Judiciary Committee has refused to so much as hold a hearing on President Obama’s nomination of Merrick Garland to the Supreme Court, told his colleagues that of the justices currently on the court, only Samuel Alito and Clarence Thomas live up to his standards.

His chief complaint against the current court was that conservative justices sometimes side with their liberal colleagues. He announced on the Senate floor that “there are justices who frequently vote in a conservative way. But some of the justices appointed even by Republicans often don’t vote in a way that advances conservative policy.”

This was very different than the standard set by Grassley during George W. Bush’s presidency, when he told his colleagues:

… I probably had the same concerns about President Clinton and Justice Breyer and Justice Ginsburg when I voted for them. Regarding the political positions that Justice Ginsburg stood for in her life before coming to be a judge, I wouldn't agree with many of them. But she was totally qualified to be on the Supreme Court, and I voted for her based upon the proposition that Alexander Hamilton said that the purpose of our activities here of confirming people for the courts is basically two. Maybe there is some historian around who will say Grassley has it all wrong, but I think it was, No. 1, to make sure that people who were not qualified did not get on the courts. In other words, only qualified people get appointed to the courts and that political hacks do not get appointed to the courts.

That is somebody who was around when the Constitution was written, and the Federalist Papers, stating those things about our role. So I have a fairly flexible point of view of how I ought to look at people, even those with whom I disagree.

Grassley's pronouncement that it is the job of conservative justices to "vote in a way that advances conservative policy” contradicts the reasons he gave for voting against Justice Sonia Sotomayor’s confirmation. He said then:

Our American legal tradition demands that judges not take on the role of policy makers, but that they check their biases, personal preferences and politics at the door of the courthouse. The preservation of our individual freedoms depends on limiting policy-making to legislatures, rather than unelected judges who have life-time appointments.

We now have an addendum to the Grassley Rule: Democratic appointees must “check their biases,” while Republican ones must “vote in a way that advances conservative policy.”

On Senate Floor, Sen. Reid Slams GOP Senators for Backtracking on Supreme Court Vacancy

In recent weeks, two Republican senators who had previously expressed their support for the Senate giving fair consideration to the president’s Supreme Court nominee, Judge Merrick Garland, have now both backtracked from their initial positions.

In February, Sen. Lisa Murkowski (Alaska) was the first Republican senator to support hearings for the president’s nominee, but did an about-face just days later. Similarly, after Sen. Jerry Moran (Kansas) said in late March “I have my job to do” and that “the process ought to go forward,” he faced a hostile response from extremist right wing groups and obediently reversed his position. The Topeka Capital-Journal reported that after Moran’s initial comments,

The Judicial Crisis Network announced it was putting the finishing touches on an advertising campaign bashing Moran, and the Tea Party Patriots Citizens Fund said it was considering backing a primary challenger.

On the Senate floor today, Minority Leader Harry Reid slammed the GOP senators for reversing course.

“Senator Moran’s backtracking is especially alarming because it appears to be the result of a multi-million dollar campaign urging the Senator to reverse his support for a hearing for Judge Garland,” Reid said. “Senator Moran was for meeting with Merrick Garland and holding confirmation hearings until the Judicial Crisis Network and the Tea Party Patriots threatened him. It will surprise no one to learn that the Koch brothers and their dark money help fund both of these radical organizations.”

The conservative, moneyed backlash came all because Sen. Moran “dared to do his job,” Reid said, asking if the GOP had become “a party dictated by menace and intimidation.”

Sen. Reid wrapped up his remarks by noting that he hopes other GOP senators will not follow suit: “Instead of caving to the Republican leader and the Koch brothers, it’s time for Republican senators to take a stand.” The American people, Reid said, want Republican senators to stop “cowering” and simply do their jobs.

Indeed, polling shows that Americans across the political spectrum want GOP senators to give Judge Garland fair consideration. A national Monmouth University poll last month found that nearly seven in ten Americans want the Senate to hold hearings, including 56 percent of Republicans. Perhaps even more revealing: 62 percent of Republicans believe that GOP leadership’s obstructionist stance is “mainly a political ploy.”

PFAW

Courting Extremism: Donald Trump's Supreme Court And Chuck Grassley's Revisionist History

Courting Extremism is a weekly feature on conservative responses to the Supreme Court vacancy.

Donald Trump, currently the frontrunner in the Republican presidential primary, believes that Barack Obama is an illegitimate president who isn’t a natural born citizen. So it’s only natural that Senate Republicans, having apparently decided that Obama’s second term in office only lasted for three years, seem intent on letting a future President Trump pick the next Supreme Court justice.

Not only would delaying a Supreme Court confirmation until the next president takes office leave the court short one justice for about a year, it could let Trump set the direction of the court for decades to come.

Conservative activists have pressured Republican leaders into taking an extreme stance that is opposed by a majority of voters, a stance so ridiculous that it even requires some Republicans to ignore their past statements on the judiciary.

Here are the five worst pro-obstruction arguments, blatant changes of heart and accidental admissions of truth that conservatives have made about the Supreme Court this week:

5) ‘Let’s Do Our Jobs’

Iowa Sen. Chuck Grassley, the chairman of the Judiciary Committee, has been feeling the heat over his support for the GOP’s Supreme Court blockade. In fact, his staff even went so far as to keep details of his public meetings with constituents a secret in order to avoid protests over the matter.

Perhaps Grassley would rather not talk to his constituents about why he thinks the Senate shouldn’t even hold a hearing on Judge Merrick Garland’s nomination because back in 2005 he was making exactly the opposite argument, telling his colleagues in a Senate floor speech about judicial nominees: “Let’s do our jobs.”

4) The Judicial C̶o̶n̶f̶i̶r̶m̶a̶t̶i̶o̶n̶ Crisis Network

It’s hard not to roll your eyes when the Judicial Crisis Network demands that Senate Republicans ratchet up their unprecedented obstruction of Garland and other judicial nominees when one remembers that prior to President Obama’s swearing-in, the group was called the Judicial Confirmation Network. Indeed, JCN was created for the sole purpose of encouraging the Senate to confirm President Bush’s nominees, especially his most extreme and controversial ones.

Now JCN is targeting Garland, a man JCN’s own leader implied in 2010 would make a suitable replacement for Justice John Paul Stevens.

“But of those the president could nominate, we could do a lot worse than Merrick Garland,” JCN chief counsel and policy director Carrie Severino said at the time. “He’s the best scenario we could hope for to bring the tension and the politics in the city down a notch for the summer.”

Not only is Severino trying to reverse herself on Garland, but she is even trying to alter the history of her own group.

In a March interview, Pennsylvania radio host Bobby Gunther Walsh spoke with Severino about the JCN and hailed her organization for its work confirming judicial nominees during the Bush administration.

When Walsh incorrectly claimed that the group was called the Judicial Crisis Network at the time — suggesting that it was formed to fight Senate Democrats who were supposedly bent on creating a “crisis” in the courts — Severino chose to let Walsh’s false claim stand and went on to attack Democrats for trying to “repeat false facts over and over again.”

3) NRA’s Lawyer Problem

The NRA has been one of the most vocal opponents of Garland’s nomination, and has even pushed outright falsehoods in hopes of blocking his nomination. The group has insisted that Garland ruled against gun activists in the landmark Heller case and supported a national gun registry. Both claims are completely false, but that hasn’t stopped conservatives like Bill O’Reilly and Larry Pratt from running with the bogus talking points.

But at least one NRA leader didn’t get the memo.

Timothy Johnson of Media Matters points out that one of the organization’s top lawyers lavished praise on Garland, although he toed the Senate GOP’s line that no nominee for the high court should be considered until after a new president takes office.

The NRA's dishonest and fiery rhetoric on Garland is at odds with the views of one of the organization's top constitutional litigators, conservative lawyer Charles J. Cooper.

Cooper, "a longtime stalwart of the Federalist Society" who often represents the NRA and other conservative interests in his private appellate litigation practice, praised Garland in a March 28 interview, saying his respect for Garland has only grown since he supported Garland's nomination to the D.C. Circuit in 1997.

In a 1997 letter to the Senate Judiciary Committee, Cooper noted that his legal philosophy differed from Garland's, but also wrote, "Not only is Merrick enormously gifted intellectually, but he is thoughtful as well, for he respects other points of view and fairly and honestly assesses the merits of all sides of an issue," and that should he be confirmed, "He would comport himself on the bench with dignity and fairness."

Asked about the letter by The Washington Post, Cooper said his "high opinion of Judge Garland has not changed -- indeed, it has only strengthened -- over the course of the 19 years since I wrote these words." (Cooper, however, does support Senate Republicans in obstructing Garland's nomination for political reasons.)

Among the cases Cooper was involved in? The Heller case, the very one that the NRA is citing in its false attacks against Garland.

2) Looming Dictatorship

Rafael Cruz, the father of Texas Sen. Ted Cruz and one of his top campaign surrogates, raised the issue of gun rights in an interview on Monday, warning that with “one more liberal justice” will lead Americans to “lose our Second Amendment right to keep and bear arms.”

Not only would Americans be stripped of their gun rights if a “liberal justice” were to be appointed to the court, Cruz warned, but America could transform into an authoritarian state: “[T]hink back in history: Every dictator that has taken the guns away from the population has used them against the population.”

1) The Trump Court

While Donald Trump may have struggled with knowing exactly what the Supreme Court does or what the right to privacy has to do with abortion rights, he has been clear that he has wanted to outlaw abortion ever since a friend who had contemplated terminating a pregnancy ended up raising a “super star” kid.

On Wednesday, Trump went on to take three different positions on abortion rights in three hours, and it remains unclear exactly what he believes.

But what Trump has made clear is that he plans to appoint to the Supreme Court only ultraconservative jurists in the mold of Antonin Scalia, ones who would likely support overturning Roe v. Wade and uphold state efforts to curtail abortion rights. He even said he would pick a justice from list of potential nominees issued by the Heritage Foundation, an anti-choice group led by Jim DeMint, who was “one of the most die-hard anti-choice lawmakers” during his time in the Senate. (The organization has since released a list of their conservative dream justices).

While Trump has reversed his position on whether women who have abortions should be punished, a Supreme Court shaped by Trump could make such a prospect a reality.

Supreme Court Obstruction is Continuation of GOP’s Disrespect for First African American President

This piece originally appeared on the Huffington Post.

From the right-wing obsession with President Obama’s birth certificate to a GOP Representative interrupting one of his speeches by yelling “you lie,” our nation’s firstAfrican American president has endured an unprecedented level of disrespect throughout his time in office. The current blockade against considering President Obama’s nominee to the Supreme Court is the latest example of this trend, and it stems from the same racist efforts to paint his presidency as illegitimate.

The Republican anti-Obama crusade began on day one, with GOP leaders meeting on the evening of his inauguration to strategize about how to block the president’s agenda at every turn. That campaign has only grown uglier since then, with many Republicans taking every opportunity to demean President Obama, paint him as a suspicious outsider, and accuse him of overstepping his authority. It is a flawed strategy and a failed campaign that has run its course.

It was disrespectful when Texas Representative Randy Weber, for example, called the president a “socialistic dictator” and asked whether he is “intent on bringing America down.” It was a show of disdain for 2016 GOP presidential candidate Mike Huckabee to tell Pat Robertson that “deep inside of” President Obama “there is a sense in which he doesn’t want America to be [a] superpower.” It was with absolute contempt that Republican frontrunner Donald Trump, who has long questioned President Obama’s birthplace, suggested that his birth certificate might say “he is a Muslim” and floated the idea that maybe the president “doesn’t want to get rid of the problem” of terrorism. It was an absence of professional courtesy when former presidential candidate Rick Santorum failed to correct or disagree with an audience member who called President Obama an “avowed Muslim” with “no legal right to be calling himself president.” While President Obama is not a Muslim, I am certain there is no place in the position description that says a Muslim American, if elected, could not serve in this country’s highest office.

I cannot recall any other president facing this kind of treatment. The current obstruction campaign blocking the president’s Supreme Court nominee may not feature the same brand of name-calling and wild accusations as previous anti-Obama campaigns. However, let’s not be naïve at their attempt to use language that may appear more palatable; the grounding is still in the same racist assumptions that his presidency, elected not only once but twice, is somehow not valid.It causes me to wonder what they truly think of democracy and Americans who exercise their right to vote.

A Senate majority has never refused to consider a president’s nominee to the Supreme Court. It is an unprecedented rebuke of the president’s constitutionally-guaranteed authority to nominate justices. Refusing to meet with, hold hearings on, or give a simple up-or-down vote to Judge Merrick Garland, President Obama’s exceptionally qualified nominee, is an insult to Judge Garland, the president,and the American people. But the truth is that Republican leadership was already bent on categorically rejecting any nominee he put forward no matter how qualified they were. North Carolina Representative G.K. Butterfield, who leads the Congressional Black Caucus, was right when he told the New York Times that “if this was any other president who was not African-American, it would not have been handled this way.”

The Constitution makes clear that it is President Obama’s right, and his duty, to make a nomination, and that it is the Senate’s job to provide advice and consent. That GOP senators are ignoring their constitutional responsibilities and refusing to consider President Obama’s nominee for the Supreme Court isn’t just politics as usual. It’s one of the most outrageous examples yet of the Republican Party treating the president, a man of color, an American of African ancestry, a Black man, like he didn’t really earn that job. Not only did he earn it, but he is doing it quite well – and that is why this obstructionist Senate should follow his lead and stop the obstruction, stop the racially motivated disrespect, and do their job.

PFAW

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

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

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

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

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

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

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

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

Pryor, a former Alabama attorney general, also has a history of right-wing activism. Pryor has called Roe v. Wade the “ worst abomination in the history of constitutional law” and said that it created “ a constitutional right to murder an unborn child.” He has claimed that with “the New Deal” and other measures, the U.S. has “strayed too far in the expansion of the federal government,” and asserted that the federal government “should not be in the business of public education nor the control of street crime .” Like Sykes, Pryor has upheld a voter ID law.

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

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

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

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

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

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

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

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

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