Supreme Court

A Baseless Attack Against Garland on ACA Cases

The new attacks are not based on anything Chief Judge Garland has actually written or addressed on the merits.
PFAW

What Would It Look Like If Ted Cruz Put His Pal Mike Lee on the Supreme Court?

Back in December, Kyle reported that Glenn Beck, who believes Ted Cruz is anointed by God to be president, suggested that a President Cruz should nominate Utah Sen. Mike Lee to the Supreme Court. This weekend, while campaigning in Utah, Cruz himself floated the prospect, saying Lee “would look good” on the court.

“Good” is not really the right word. “Terrifying” is more like it.

Lee, who calls Cruz his “best friend at work,” has perhaps the most extreme view of the Constitution of anyone in the Senate. Lee is a fervent “tenther,” someone who believes the Tenth 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.”

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

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

This list helps explain why right-wing law professor Jonathan Adler, a force behind the King v. Burwell challenge to the Affordable Care Act, has also suggested that the next Republican president should put Lee on the court.

For an ardent self-described constitutionalist, Lee has a lot of problems with the Constitution as amended over the years and as interpreted by the Supreme Court. Lee published a book last year called “Our Lost Constitution: The Willful Subversion of America's Founding Document.” He believes the 16th amendment, allowing the federal government to collect income taxes, should be repealed, leaving it to the states to determine how they would tax their own citizens to pay for the extremely limited federal government that would fit his vision of the constitution. He also thinks the 17th Amendment was a mistake and thinks the power to elect U.S. senators should be taken away from voters and returned to state legislatures. He also wants to "clarify" the 14th Amendment through legislation to deny citizenship to children born in the U.S. to parents who are not citizens or legal residents and wants to amend the Constitution to require a balanced federal budget and to impose congressional term limits. He supports a campaign by some right-wing activists for state legislators to convene an “Article V” convention for the purpose of amending the Constitution.

As a Senate candidate he said he would like to abolish the federal Departments of Energy and Education, dismantle the Department of Housing and Urban Development, and phase out Social Security altogether. As a senator, Lee orchestrated shutting down the government in an effort to defund Obamacare, even though Cruz took most of the blame for it.

Cruz and Lee share a sort of gleeful pride in playing the outsiders who have contempt for “the establishment.” Lee is reportedly the guy who suggested that Cruz run for Senate; he was among those who endorsed Cruz in his long-shot primary for his Senate seat. This month, he became the first of Cruz’s Senate colleagues to endorse his presidential run.

Courting Extremism: GOP Attacks On Garland Range From Pathetic To Bizarre

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

In the weeks since the death of Justice Antonin Scalia, Republicans have relied on falsehoods and fabricated claims in an attempt to justify their refusal to consider any person President Obama nominates to take Scalia’s place on the Supreme Court. It comes as no surprise, then, that as soon as President Obama nominated Judge Merrick Garland for the seat, conservatives immediately turned to ridiculous and dishonest arguments to oppose his nomination.

Here are the five most ridiculous conservative pro-obstruction arguments of the week:

5) Blockbuster Scandal!

Conservatives think they have finally found a damning piece of opposition research on Garland: He once dared to appear at a book party for a book about Justice Harry Blackmun and, according to one report, “described the release of Blackmun’s papers to be a great gift to the country.”

Why is it scandalous to attend a celebration of a book about a justice who served on the Supreme Court for over two decades? Because Blackmun authored the Roe v. Wade decision, of course!

Garland’s attendance at the book party has rattled Americans United for Life and the Judicial Action Group, which favor the Senate GOP leadership’s Supreme Court blockade.

Here is how the anti-choice outlet LifeNews put it: “When it comes to President Barack Obama’s Supreme Court nominee, Merrick Garland, one of his inspirations is the author of Roe v. Wade, the high court case that ushered in an era of 58 million abortions.”

The group Live Action even said that by hailing the release of Blackmun’s papers, Garland “has lavished praised” on Blackmun, “author of the legally indefensible Roe v. Wade.” Live Action’s Calvin Freiburger also stated that Republicans should oppose Garland simply because Obama nominated him, saying that the president “a judicial activist at heart and is wildly committed to abortion-on-demand at any time for any reason as a ‘constitutional right.’”

Just to recap, according to the Right Wing, it is now a scandal that a federal judge praised the release of a Supreme Court justice’s papers, and it is controversial that a president fulfilled his constitutional duties to appoint jurists to the bench.

4) Giving Away The Game

Senate Republicans know they can’t come right out and admit that they oppose Garland’s nomination because he isn’t the kind of right-wing extremist they think they would get from a President Trump or Cruz. And they can’t come out against his impeccable qualifications either.

As such, all they are left with is the historically inaccurate talking point that the Senate has a “tradition” of refusing to confirm Supreme Court nominees in the final year of a president’s term. Since anyone who performs a simple Google search about past confirmation votes can easily debunk the GOP’s claim, it is hard to see how much longer they can trot this one out.

Obama’s nomination of Garland, who is widely respected on both sides of the aisle, caused at least some Republicans to throw out the bogus “tradition” argument and simply admit that their Supreme Court blockade is just about politics.

If the “tradition” argument was actually based in fact and Republicans truly believed that March 2016 is too late in the president’s term for him to appoint a Supreme Court justice, then why do they think that November and December of this year would be just fine?

The Wall Street Journal’s editorial board similarly floated the idea of a lame-duck confirmation vote “if Mrs. Clinton wins the election” just one month after demanding that Senate Republicans “refuse to consider any nominee this year” and wait for the next president to nominate a new justice.

Former GOP presidential candidate Ben Carson also confessed to the political nature of the GOP’s stance, telling one radio host that the Senate should move to confirm Garland only if “Hillary won” because “otherwise we’re going to get somebody who’s really left-wing who’s going to be much, much worse than anything that [Garland] would likely do.”

3) Gun Grabber!

Fox News pundit Bill O’Reilly joined gun groups like the National Rifle Association and Gun Owners of America in criticizing Garland’s nomination, saying this week that Garland “voted” to “keep guns away from private citizens” in Washington, D.C. “That vote will disqualify him among Republicans,” he said, referring to Garland's supposed “advocacy position that guns have to be kept away.”

O’Reilly’s colleague at Fox News, Bret Baier, also alleged that Garland “opposed Justice Scalia’s take on the Second Amendment in the Heller case.”

Except Garland never voted on anything close to that.

O’Reilly and Baier were referring to the Heller case, which challenged a District of Columbia law barring residents from owning handguns. When it reached the U.S. Court of Appeals for the District of Columbia, a three-judge panel found that the ban was unconstitutional. Garland simply voted to have the case, which had national implications, reheard by the full court, which often happens in important cases.

It was not a vote for or against the constitutionality of the district’s gun regulation, but rather simply a vote to have the case heard in front of all the judges on the court. And far from being an outlier, he voted the same way as other judges on the bench including Judge A. Raymond Randolph, whom Linda Greenhouse of the New York Times once called “one of the most outspoken and agenda-driven conservatives on the entire federal bench.”

It seems conservatives like O’Reilly and Baier are either making things up or simply don’t understand how the justice system works.

2) Garland Is ‘A Slow, Stealth, Radical Liberal’

Conservative radio host Michael Savage has his own reasons for opposing Garland.

Savage took issue with commentators who described Garland as a “moderate liberal,” claiming this week that “there’s no such thing as a moderate liberal” because “liberalism itself is a radical philosophy whose aim is to slowly or rapidly erode or destroy the structural pillars of a traditional society.”

“No he’s not a moderate at all,” Savage said. “He is a slow, stealth, radical liberal like the rest of them.”

1) Cover-up!

Leave it to the conspiracy theorists at WorldNetDaily to issue this strange attack on Garland.

WND reporter Jack Cashill urged Republicans to grill Garland on his ties to the supposed “cover-ups” behind the TWA Flight 800 disaster and the Oklahoma City bombing, even demanding that Republicans ask Hillary Clinton to testify at confirmation hearings.

While his argument is rooted in conspiracy theories, at least Cashill is calling for the Judiciary Committee to have a hearing on Garland’s nomination, something many Republicans refuse to do.

Conservatives Make Pathetic Effort To Claim Garland Is 'Hostile' To Gun Rights

As soon as President Obama announced his nomination of Merrick Garland to fill the Supreme Court seat left by Justice Antonin Scalia’s death, the conservative Judicial Crisis Network and the Republican National Committee unveiled embarrassingly thin dossiers to frame Garland — whom conservatives have previously praised — as an unconfirmable liberal activist.

Both organizations decided to focus their criticism on the claim that Garland is “hostile” to gun rights, something that other conservative groups have picked up and run with. The National Rifle Association, in turn, is out with a petition urging the Senate to reject Garland’s nomination, also claiming that he’s “hostile to the Second Amendment.”

The NRA cites three cases that it says show that Garland “supports a handgun ban” and “supports a national gun registry.” Not one shows anything of the sort.

Claim 1: “In 2007, he ruled in favor of reviewing the D.C. Circuit’s decision that invalidated the city’s handgun ban – the very ban Scalia helped overturn at the Supreme Court.”

The facts: A divided panel of three other judges of the D.C. Circuit Court, on which Garland sits, reversed a lower court ruling and found that a Washington, D.C., handgun ban was unconstitutional. The full court then had an opportunity to vote on whether the case should be reheard by all the judges on the entire D.C. Circuit. Garland was one of four members of the court, including a decidedly conservative colleague, Raymond Randolph, who voted to rehear the case. That vote indicates absolutely nothing about what Garland thought about the merits of the case and certainly doesn’t mean that Garland “supports a handgun ban” as the NRA claims. After all, this was before the Supreme Court ruling in Heller and, regardless of ideology, it made perfect sense for a judge to want the full circuit to consider the case.

Claim 2: “In 2004, he ruled against rehearing another pivotal Second Amendment case, thereby casting a vote against the individual right to Keep and Bear Arms.”

The facts: It’s the same story here. The NRA seems to be referring to the 2005 case Seegers v. Gonzales, which had to do with whether the parties suing had standing to challenge D.C.’s handgun law; the substance of the Second Amendment argument was not at issue. This time, Garland voted with the majority of his colleagues to deny a full-court rehearing of the case. Again, that vote gave absolutely no indication of how he felt about the issue of standing (to say nothing of the merits of the Second Amendment case) and definitely was not “a vote against the individual right to Keep and Bear Arms.”

Claim 3: “In 2000, he ruled in favor of the federal government’s plan to keep gun owners’ personal information in an unofficial national registry.”

The facts: In this case, NRA of America v. Reno, the NRA claimed that a regulation requiring information from gun background checks to be temporarily retained violated a law requiring background check records to be destroyed. Garland joined in an opinion finding that the law didn’t prohibit the temporary storage of that data “for audit purposes,” after which it would be destroyed as required by law. From this, the NRA falsely concludes that Garland “supports a national gun registry.”

There is frankly nothing in Garland’s record that indicates his substantive views, if any, on the Second Amendment. Could it possibly be that conservative groups are grasping at straws in an attempt to justify their blanket obstruction of the Supreme Court nomination process?

'Swift Boat' PR Firm Takes Up Supreme Court Fight

The public relations firm that pushed the false “swift boat” smear on John Kerry in 2004 and has since taken up far-right causes from creationism to the Tea Party to recent attacks on Planned Parenthood has now gotten involved in the fight against confirming President Obama’s Supreme Court pick.

A new website, ScotusBrief.org, which appears to be dedicated to pushing the messaging of the conservative Judicial Crisis Network (JCN), was registered four days after the death of Antonin Scalia by Leif Noren, the founder and chairman of the Virginia-based CRC Public relations. CRC has represented JCN in the past and in 2009 was involved in the effort to stop the confirmation of Justice Sonia Sotomayor. It’s on the CRC-created website that JCN published its embarrassingly thin opposition research dump on Merrick Garland, Obama’s nominee to replace Scalia.

CRC is most infamous for its role representing Swift Boat Veterans for Truth, the group that in the months before the 2004 election pushed dishonest claims that Democratic presidential candidate John Kerry had overstated his accomplishments in the Vietnam War. The smear was so nasty that it inspired the creation of the word “swiftboating” to describe false personal smears against a candidate.

Since then, CRC has taken up far-right causes including attacks on health care reform, climate-change denialism, the creationist Discovery Institute and the National Organization for Marriage. CRC is also representing David Daleiden, the activist behind last year’s series of videos smearing Planned Parenthood.

The Judicial Crisis Network — which during the Bush administration was called the Judicial Confirmation Network and was dedicated to pushing through conservative judicial nominees — has been laughably attempting to frame its efforts to stop a Supreme Court confirmation as some sort of high-minded, nonpartisan public service rather than the transparently partisan crusade that it is.

The group’s partnership with CRC, with its long history of vicious partisan smears, exposes that partisan crusade yet again.

PFAW Hosts Telebriefing on the President's Supreme Court Nominee

One day after President Obama nominated Judge Merrick Garland to serve on the Supreme Court, PFAW held a telebriefing for members about the extraordinarily qualified nominee and the GOP’s unprecedented obstruction campaign aimed at bringing the process of filling the vacancy to a halt.

PFAW’s Michael Keegan, Marge Baker, Elliot Mincberg, Drew Courtney, and Brian Tashman discussed the Republican blockade, Garland’s record as a judge, and what’s at stake in the confirmation fight for our constitutional rights and liberties.

“This nominee, when confirmed, will shift the balance” of a Supreme Court that has been one of the “most conservative Courts in decades,” Baker said. PFAW released a report last year, “Judgment Day 2016,” reviewing many of the 5-4 decisions that have had an enormous impact on the daily lives of Americans and highlighting how the composition of the Court is a key issue in 2016 and beyond.

Speakers outlined why it’s critical that Senate Republicans do their jobs and give Judge Garland the fair consideration that he deserves. Tashman noted that the Right’s encouragement of the GOP obstruction is nothing more than an “effort to delegitimize the president and play politics with the Court.”

You can listen to the full telebriefing here:

PFAW

Ben Carson Undermines GOP Claims On Supreme Court Nomination

While Republicans have spent the past several weeks declaring that their vow to obstruct any person President Obama nominates to the Supreme Court is a matter of principle and tradition (never mind that it’s a principle and tradition that they made up on the spot), some have begun changing their tune now that Obama has nominated Merrick Garland to the seat, hinting that they would confirm him in a lame duck session if a Democrat is elected president in November.

Former GOP presidential candidate and Donald Trump endorser Ben Carson was the latest to jump on this bandwagon, telling David Webb on his Sirius show last night that Senate Republicans should simply delay proceedings on Garland’s nomination until after the election.

“I would take a very slow, deliberate process that extended beyond the election in November,” he said, “so that in the chance that Hillary won, they’d be ready to confirm him, because otherwise we’re going to get somebody who’s really left-wing who’s going to be much, much worse than anything that he would likely do. By the same token, by taking it very, very slowly, beyond the election, you know, if the Republican wins, then you can say, ‘Okay, we took it that far, now let’s see who the president really wants to appoint.’”

'This Is The Most Important Battle Of Our Lives'

Today on “Breitbart News Daily,” Penny Nance of the right-wing group Concerned Women for America told activists to prepare for “the fight of our lives” over the nomination of Judge Merrick Garland to the Supreme Court.

Nance said that President Obama is “out of control” and urged conservatives to support the Senate Republicans’ refusal to even grant a hearing to his nominee. “It is going to be a blood match,” she said. “It is going to be a cage match…. This is the most important battle of our lives.”

“I’ve never said that before,” she said. “What hangs in the balance is any issue any one of your listeners care about.” Nance said that with Garland on the bench, laws curbing abortion access will fall because jurists like Garland will “legislate from the bench.”

“The key to this is Chuck Grassley and Sen. McConnell,” she said, referring to the Judiciary Committee chairman and the majority leader. “Let them feel the love. They are standing firm. I have spoken personally and met with Chuck Grassley. I have prayed with him. I have talked with him about this. He has assured me that he is on point on this. [Unintelligible] He 100 percent agrees with everything I’m saying. What’s coming at him, even in all the years he’s been at this, I don’t know he’s ready for.”

She added: “In over 80 years, there hasn’t been a Supreme Court nominee confirmed in the last year of a president’s administration. We’re not going to change that now just because the Democrats want their way.” Nance’s claim is flat-out false, as the Senate confirmed a Supreme Court nominee in the last year of President Reagan’s term in 1988.

Pat Robertson: The Supreme Court Has 'Ripped Up The Fabric Of American Life'

Today on “The 700 Club,” Pat Robertson told Senate Republicans to “hold firm” on their Supreme Court blockade.

“If Republicans cave, they can kiss the Senate goodbye,” he said. (Polls actually show the Supreme Court blockade hurting Republicans’ re-election prospects).

After ranting about how conservatives got “snookered” by the appointment of Justice Sandra Day O’Connor, the televangelist said that “the Supreme Court has dominated our nation: marriage, homosexuality, schools, you go down the line, prayer and so forth, they’ve come out against, against, against and they’ve ripped up the fabric of American life.”

Another Senate Republican Admits His Party's Supreme Court Blockade Is All About Politics

Just hours after President Obama announced his nomination of Judge Merrick Garland to the Supreme Court, several Senate Republicans said that they would refuse to even consider Garland’s nomination and repeated their claim that whoever wins the presidential election should be the one to fill the vacancy on the court.

These Republicans continue to justify their obstruction by pointing to a nonexistent tradition and a made-up constitutional principle that the Senate doesn’t vote on nominees to the Supreme Court in election years. They seem to be sticking with this talking point even though a cursory glance at congressional history (and the Constitution) shows that the argument is completely baseless.

According to Republicans, Obama’s presidency is effectively over nearly a year before the end of his second term.

Even Sen. Lindsey Graham, R-S.C., admitted that Republicans are going into unchartered waters with their unprecedented blockade. The GOP has decided to stand by this “principle,” no matter how wrong-headed it is, in order to claim that their maneuvering has nothing to do with partisan politics.

But Sen. Jeff Flake today exposed that argument as nothing but an excuse.

The Arizona Republican said that the Senate should consider Garland in a lame duck session if Hillary Clinton is elected president, fearing that Clinton would appoint a jurist who is more liberal than Garland.

Arizona Sen. Jeff Flake, a Republican on the Judiciary Committee who is generally deferential on presidential nominees, said “yes” when asked whether he would move to confirm Garland in the lame-duck session if Hillary Clinton, the front-runner for the Democratic nomination, wins in November.

“For those of us who are concerned about the direction of the court and wanting at least a more centrist figure than between him and somebody that President Clinton might nominate, I think the choice is clear — in a lame duck,” Flake said Wednesday after Obama named Garland.

Sen. Orrin Hatch also said he was open to a vote but only in the lame-duck session, and NPR’s Nina Totenberg has “learned that Senate Republicans have signaled via ‘back channels’ that they would approve Garland, but only after the general election in November.”

Flake’s suggestion shows the absurdity of the party’s blockade. If the GOP’s Supreme Court blockade was really about the principle that Obama’s successor should appoint the next justice, then Flake shouldn’t care whether President Clinton would appoint a more liberal figure than Garland.

And if the GOP really thinks that March 2016 is too late to consider an Obama nominee, then why would November or December of this year be appropriate?

Flake knows that the GOP’s stance is all about politics and that their “tradition” talking point is not only erroneous but also an attempt to avoid the charge that they are trying to play partisan politics with the Supreme Court.

Flake’s Republican colleague Sen. Ron Johnson of Wisconsin made a similar admission when he confessed that the Senate would have considered a nominee in the president’s final year had that president been a Republican.

If it wasn’t, then he wouldn’t propose a lame-duck session to approve Garland’s nomination just in case a President-elect Clinton decides to appoint someone less to the GOP’s liking.

Conservative Groups Double Down On SCOTUS Obstruction

After President Obama announced his nomination of Judge Merrick Garland to the Supreme Court today, conservative groups quickly doubled down on their calls for Senate Republicans to block any person the president nominates to fill the vacancy left by the death of Justice Antonin Scalia.

Although a handful of senators are now hinting that they may be willing to at least meet with Garland — who has won praise from Republicans in the past — conservative groups have reiterated their demands that the GOP block his nomination.

Jay Sekulow of the American Center for Law and Justice issued a statement repeating his call for “no confirmation proceedings until after the election.” Liberty Counsel’s Mat Staver similarly repeated that there should be “no Senate hearing on any Obama nominee.” Concerned Women for America announced that “President Obama’s choice for the Supreme Court does not change the fact that the Senate needs to continue to do the proper thing by fulfilling its role of ‘advice and consent’” — by which CWA means blocking a nominee.

Alliance Defending Freedom’s Casey Mattox offered no criticism of Garland himself but claimed that the Obama administration is untrustworthy and so Garland’s nomination should be blocked: “The Obama administration has demonstrated it cannot be trusted to respect the rule of law, the Constitution, and the limits of its own authority. So it should be no surprise that the American people would be highly skeptical that any nominee this president puts forth would be acceptable.”

Heritage Action, which was calling for an end to most judicial and executive branch confirmations even before Scalia’s death, declared that “nothing has changed” with the nomination of Garland and that we areone liberal Justice away from seeing gun rights restricted and partial birth abortion being considered a constitutional right.”

Tony Perkins of the Family Research Council similarly tried to paint Garland as a liberal, saying he is “far from being a consensus nominee,” although he offered no specifics about the “serious questions” he said there were about Garland’s “ability to serve as a constitutionalist.” Kayla Moore, who heads the Foundation for Moral Law, the group founded by her husband Alabama Supreme Court Chief Justice Roy Moore, also opted for vague and dire warnings, saying that Americans “may very well lose our rights” if Garland is confirmed.

Anti-abortion groups also doubled down on their opposition to any confirmation proceedings, while at the same time struggling to find specific reasons to oppose Garland.

Father Frank Pavone of Priests for Life didn’t bother to criticize Garland at all, writing instead that this is “no time for a lame duck President to push through a judge for a lifetime appointment.” (Never mind that Obama, with nearly a year left in his second term in office, is not a lame duck president.)

The Susan B. Anthony List’s Marjorie Dannenfelser wrote:

This changes nothing. We do not know this nominee but we do know Barack Obama. Anyone he nominates will join the voting bloc on the Court that consistently upholds abortion on-demand. The President should not be permitted one last opportunity to stack the Court with pro-abortion Justices.

Meanwhile, Americans United for Life dug up this one unconvincing piece of opposition research:

Consider that Judge Garland spoke at a gathering celebrating Linda Greenhouse’s book on Justice Harry Blackmun, Becoming Justice Blackmun. He described the release of the papers of the late Justice Blackmun—the author of one of the Supreme Court’s worst decisions, Roe v. Wade—as a “great gift to the country.”

Operation Rescue’s Troy Newman said his group would oppose any nominee who does not publicly “renounce Roe v. Wade”:

"Millions of lives hang in the balance of each ruling on abortion put forth by the Supreme Court. I refuse to support any nominee - Republican or Democrat - that will not renounce Roe v. Wade and commit to restoring legal protections to the pre-born," said Troy Newman, President of Operation Rescue.



"I strongly urge the members of the Judiciary Committee to hold fast to their promise, for the sake of the future of our country and the future of our posterity," said Newman. "The Senate Republican leadership cannot afford to break this important promise to their conservative, pro-life base, if they expect us to vote for any of them ever again."

Gun groups also came out swinging against Garland, with the National Rifle Association claiming that he “ does not respect our fundamental, individual right to keep and bear arms for self-defense” and Gun Owners of America colorfully calling on the Senate to “bury this nomination and write ‘Dead On Arrival’ as its epitaph.” Both groups based their objections on Garland’s vote, as a D.C. Circuit judge, simply to rehear an important gun rights case.

The Judicial Crisis Network’s Carrie Severino — who previously called Garland a “best case scenario” Obama nominee to the Supreme Court — has been relying on thesame flimsy criticism to attack Garland.

We’ll update this post with more reactions as they come in.

This post has been updated.

GOP's Newest Defense of SCOTUS Obstruction Falls Apart

The GOP's talking points keep changing as they are refuted, and the latest ones are really easy to refute.
PFAW

Edit Memo: Not Just the Supreme Court: Republicans’ Blockade of Judicial Nominees Started Long Before SCOTUS Vacancy

To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: March 14, 2016
Re: Not Just the Supreme Court: Republicans’ Blockade of Judicial Nominees Started Long Before SCOTUS Vacancy

Senate Republicans’ vow to block anyone nominated for the Supreme Court by President Obama, no matter who it may be, has rightly gotten a lot of headlines. Their refusal to even consider a president’s Supreme Court nominee is unprecedented. Unfortunately, this campaign of obstruction is just latest extension of their obstinate refusal to responsibly fulfill the constitutional duty of considering the president’s nominees across all levels of the federal judiciary. Judiciary Committee chairman Chuck Grassley is leading the party’s strategy to keep vacancies open for as long as possible on our nation’s federal circuit and district courts.

This isn’t the first time that Grassley has led his party in seeking to block Obama from filling important judicial vacancies, regardless of who he might nominate. In 2013, Grassley sought to eliminate three vacant judgeships from the critically important 11-member DC Circuit Court of Appeals, rather than allow Obama to fill any of them. This was two months before the president had even nominated anyone for these seats. When his eventual nominees appeared before the Judiciary Committee, Republican members followed the lead of then-Ranking Member Grassley in opposing them regardless of their legal acumen, their professional experience, or their judicial temperament. Ted Cruz, for instance, made clear to Patricia Millett that he would join Grassley’s effort to block her confirmation “irrespective of your very fine professional qualifications.” During this high-profile partisan confrontation that Grassley created over the nation’s second most powerful court, he supported his obviously political position with principled-sounding claims that were repeatedly shown upon investigation to be without merit.

Since the GOP took control of the Senate, he has used his position as chairman of the Judiciary Committee to drastically slow down the consideration of President Obama’s judicial nominees. Perhaps the most notorious example is the nomination of L. Felipe Restrepo of Pennsylvania to the Third Circuit Court of Appeals. With the tacit cooperation of home state senator (and fellow Republican) Pat Toomey, Grassley did not even hold a confirmation hearing until seven months after Restrepo’s nomination, even though Toomey claimed to support the nomination and Restrepo had already been thoroughly fully vetted for a district judgeship just two years earlier. He was approved unanimously by the Judiciary Committee last July, but then languished on the Senate floor for half a year until Republicans finally allowed a confirmation vote in January. The delay had nothing to do with Restrepo’s qualifications: When he was finally confirmed, it was with overwhelming bipartisan support, with only six senators voting against him.

The current slowdown is a sharp departure from the norm, even considering other times when the White House and Senate are controlled by different parties. For instance, at this point in George W. Bush’s last two years, the Democratic-controlled Senate had confirmed 40 circuit and district court nominees. In contrast, the GOP-controlled Senate in President Obama’s last two years has only confirmed 16 judges so far. 2015 saw only 11 confirmations, the fewest since 1960, more than half a century ago, a time when there were hundreds fewer judgeships to fill than today.

March 9 saw a typical example of the Grassley model on the Senate floor, where he or one of his GOP colleagues on the Judiciary Committee actively – and needlessly – block votes on long-delayed, fully-vetted consensus nominees. Maryland Sen. Barbara Mikulski made a simple request of her colleagues: to hold a confirmation vote on two consensus district court nominees from Maryland and Tennessee. Paula Xinis has been awaiting a floor vote since she was approved by the Judiciary Committee by unanimous voice vote on September 17, nearly half a year ago. Tennessee’s Waverly Crenshaw has been waiting even longer: the committee advanced him – also by unanimous voice vote – way back on July 9. Each nominee has the support of their home state senators, two Democrats and two Republicans. Yet Sen. Mikulski’s request for a vote was blocked by Republican Judiciary Committee member John Cornyn of Texas, so individuals and businesses in Maryland and Tennessee are denied fully functioning federal courts.

In response to this floor action (or, more properly, floor inaction), the Judiciary Committee’s Ranking Democrat, Sen. Patrick Leahy, noted the connection to the constitutional crisis over the current Supreme Court vacancy: “While Republicans refuse to even consider the next Supreme Court nominee, I would think they would at least allow consensus lower court nominees to be confirmed.” Unfortunately, the GOP’s obstructionism reaches every level of the federal judiciary.

The American system of justice, where everyone can be assured of their fair day in court when their rights are violated, depends on having enough judges to hear those cases. But since Republicans took over the Senate, the number of circuit and district vacancies has nearly doubled (from 40 to 73), and the number of those vacancies officially designated by the Administrative Office of U.S. Courts as “judicial emergencies” has skyrocketed from 12 to 32.

So the refusal of the Senate GOP to do their job on judicial nominations is not new; it’s been their deliberate policy toward the entire federal court system. What’s new is the extension of that policy to the radical and irresponsible position that the Senate majority can refuse to perform its constitutional responsibility to give the president’s nominee fair consideration As chairman of the Judiciary Committee and architect of the party’s approach to judiciary matters, Chuck Grassley bears key responsibility for the harm his party is doing to the federal judiciary.

The damage is particularly bad when the vacancies occur at the circuit court level. Unlike district courts, circuit courts issue decisions that bind every federal court within their region. And since the Supreme Court takes so few cases each year, it is usually the circuit courts that have the last word on how the Constitution or federal laws will be interpreted in the regions they cover.

Fortunately, President Obama has nominated a number of highly qualified and respected individuals to serve on circuit courts around the country. When Democrats controlled the Senate, then-Chairman Patrick Leahy worked cooperatively with Republican home state senators to process circuit court nominees in a timely manner, such as when Iowan Jane Kelly was given a committee hearing less than a month after being nominated. Now that Grassley is chairman, it is imperative that he, too, work with home-state senators and fellow committee members to ensure that President Obama’s circuit court nominees have open hearings and timely committee votes. Indeed, several of these nominees could already have had their hearings by now.

Donald K. Schott of Wisconsin for the 7th Circuit (Illinois, Indiana, and Wisconsin): Nominated on January 12 (more than two months ago), Schott would fill a seat that has been empty for more than six years, the oldest circuit vacancy in the nation. He was evaluated and found qualified by the state’s bipartisan six-member Federal Nominating Commission, three appointed by Sen. Ron Johnson and three appointed by Sen. Tammy Baldwin. A longtime partner at a major national firm, Schott has extensive litigation experience at both the state and federal levels, and at both the trial and appellate levels. He has regularly been recognized as one of the best lawyers in the state. He also has strong support in the Wisconsin academic legal community.

Justice Myra Selby of Indiana for the 7th Circuit (covering Illinois, Indiana, and Wisconsin): Justice Selby was nominated on January 12 (more than two months ago). She had developed expertise in health care issues as a private practitioner and as a high-ranking state government official when she was appointed to the Indiana Supreme Court in the 1990s, becoming both the first woman and the first African American to serve on that court. Knowing the enormous impact that courts have on the lives of everyday Americans, Justice Selby led efforts to increase the state high court's accessibility to the Indiana public through public education and outreach. Since retiring from the state court, she has had a successful practice as a partner in the Indianapolis branch of a major law firm, while also chairing a state commission that studies ways to increase racial and gender fairness in the legal system. Upon confirmation to the Seventh Circuit, she would become the first African American from Indiana and the first woman from Indiana to serve on that court.

Jennifer Klemetsrud Puhl of North Dakota for the 8th Circuit (covering Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota): Nominated on January 28, Puhl has worked in the U.S. Attorney’s office in North Dakota since 2002, gaining substantial experience prosecuting a variety of criminal matters. Her expertise across different areas of the law has led to her being named to a number of leadership roles, including Computer Hacking and Intellectual Property Coordinator, National Security Cyber Specialist, Human Trafficking Coordinator, and Project Safe Childhood Coordinator. Puhl has played a major role in fighting human trafficking in North Dakota. Upon confirmation, Puhl would be the first woman ever to serve as a federal judge at any level in North Dakota, circuit or district. In addition, even though the 8th Circuit covers seven states, it has only had two women judges in its history.

Judge Abdul Kallon of Alabama for the 11th Circuit (covering Alabama, Florida, and Georgia): Judge Kallon was nominated on February 11. An immigrant from Sierra Leone, he began his legal career in Alabama, had extensive litigation experience, and became a partner in a major law firm based in Birmingham. His exemplary reputation in the legal community earned him the support of Alabama Sens. Jeff Sessions and Richard Shelby when President Obama nominated him as a district judge in 2009. The Senate confirmed him unanimously for that position, and he has continued to earn the respect of the Alabama legal community. Upon confirmation, Kallon would become the first African American from Alabama to serve on the 11th Circuit (or on its predecessor court, the 5th Circuit, which used to include Alabama). The judgeship he would fill has been vacant since 2013 and has been formally designated a judicial emergency.

Judge Lucy Haeran Koh of California for the 9th Circuit (covering Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington): Koh was nominated on February 25 and would bring a wide range of professional experience to the bench. She spent several years at the Department of Justice, earning awards and recognition for her work as a prosecutor. She then moved to private practice and became a litigator and partner at a major law firm. Gov. Arnold Schwarzenegger then appointed her as a state judge in 2008. Her success at all these endeavors led President Obama to nominate her to become a federal district judge, and the Senate confirmed her unanimously in 2010. Upon confirmation to the 9th Circuit, Judge Koh would be only the second Asian American woman ever to serve on a federal circuit court. The vacancy she would fill has been formally designated a judicial emergency.

Nominations like these are important, but they don’t get the national attention that Supreme Court vacancies do. What’s important to note, however, is that when Chuck Grassley and his fellow Republicans claim some lofty-sounding principle to defend their planned and unprecedented Supreme Court blockade, they don’t have clean hands. Instead of doing their jobs of efficiently vetting and voting on judicial nominees in a timely manner, they’ve been stalling them at all levels.

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Courting Extremism: The Week The GOP Admitted Its Supreme Court Blockade Is Based On A Lie

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

We are introducing a new series here on Right Wing Watch as the GOP’s obstructionism reaches a new low, with many Republican leaders now claiming that whomever President Obama nominates to the Supreme Court should receive absolutely no consideration from senators, despite their duties as outlined in the Constitution.

In response to the Supreme Court blockade, we will be putting together a weekly update on the Right’s response to the current Supreme Court vacancy.

5) Federalist Society Fine With A Perpetual Vacancy

Originally, Republicans insisted that they were simply upholding a recently-discovered tradition where the Senate refuses to consider Supreme Court nominees in election years.

However, since this tradition doesn’t actually exist, conservatives have become more honest about what’s really going on: they just don’t like the fact that Obama is president.

At the recent Conservative Political Action Conference (CPAC), Dean Reuter of the Federalist Society, a major right-wing legal group, commended the Senate GOP leadership for refusing to consider whomever Obama nominates to fill the vacancy. When asked if Republicans should continue to block hearings if the next president is a Democrat, Reuter said he is fine leaving the seat open indefinitely:

There’s no time limit in the Constitution. And there’s nothing magical about there being nine justices. The country started out with six justices, we’ve had as many as ten at some point in time. And as recently as 2010, when Justice Elena Kagan came on the Court, she had been solicitor general so she recused herself in over a third of the cases…I don’t see a sense of urgency.

Unless, of course, a Republican is elected president.

4) Ron Johnson Gives Away The Game

Apparently, the fictitious no-appointments-in-an-election-year tradition only applies to Democratic presidents, at least according to Sen. Ron Johnson.

The Wisconsin Republican said in a radio interview yesterday that “it’d be a different situation” if a GOP president was appointing a justice to the bench, saying that the Senate Republicans would show “more accommodation” to a Republican president.

Johnson might be interested in hearing from his voters: A recent poll found that 62 percent of Wisconsinites say the open Supreme Court seat should be filled this year, and 76 percent “think the Senate should at least see who gets put forward before making a decision on whether they should be confirmed.”

3) ‘We Are Setting A Precedent Here Today’

At least one Republican senator is honest enough to admit that the Republicans don’t have Senate history on their side.

Sen. Lindsey Graham told a Judiciary Committee meeting that the GOP is about to create a new precedent by refusing to even consider a nominee from President Obama, as the Huffington Post reports:

One of the Republican Party's most candid senators, Lindsey Graham (S.C.), admitted Thursday a stark fact that the rest of his colleagues have tried their best to avoid: that their blockade of any Supreme Court nominee by President Barack Obama is unprecedented.

And he insisted that he was going to go along with it, even though he predicted it would worsen relations between the parties and the functioning of the Senate.

"We are setting a precedent here today, Republicans are, that in the last year at least of a lame duck eight-year term -- I would say it’s going to be a four-year term -- that you’re not going to fill a vacancy of the Supreme Court based on what we’re doing here today," Graham said in an unusual session of the Judiciary Committee, where members debated not bills or judicial nominees, but Obama's right to carry out his constitutional powers in an election year.

"We're headed to changing the rules, probably in a permanent fashion," he said.

Nonetheless, Graham said that “he still supports Grassley's decision not to hold hearings for Obama's nominee.”

2) ‘It’s A Political Argument’

While Senate Republicans insist that they aren’t inserting partisanship into the Supreme Court fight and are simply following tradition, Rep. Steve King, R-Iowa, a member of the House Judiciary Committee, said at CPAC that the fight is all about winning “a political clash.”

In video provided by Democracy Partners and Americans United for Change, King said that he supports the actions of Judiciary Committee Chairman Chuck Grassley “as long as he’s blocking an Obama appointment.”

1) Who Cares About The Sixth Amendment?

It seems that the GOP is not only ignoring the Constitution’s “advice and consent” requirement but also the heart of the Sixth Amendment.

In a taste of things to come, Carrie Severino of the Judicial Crisis Network took to the National Review to attack a possible Supreme Court nominee, Judge Jane Kelly, for having once worked as a defense attorney.

That’s right, Severino seemed to suggest that it is disqualifying that Kelly worked as a defense attorney because her past clients include people accused of vicious crimes.

Of course, everyone accused of a crime isn’t necessarily guilty, and according to the Sixth Amendment, “the accused shall enjoy the right to a speedy and public trial” and “to have the Assistance of Counsel for his defence.”

Severino’s outrageous article is also an opportunity to point out that her group, the Judicial Crisis Network, was originally named the Judicial Confirmation Network when it was founded during the Bush administration for the purpose of advocating for the smooth confirmation of judges.

Rick Joyner: Hurricane Katrina Was God's Way Of Punishing Gay People

Last week on “The Jim Bakker Show,” televangelist Rick Joyner repeated his claim that gay pride events are to blame for Hurricane Katrina, alleging that the storm was a sign of God’s judgment and “a wakeup call.”

Joyner also spent time criticizing the Supreme Court’s landmark marriage equality ruling during a discussion about the death of Justice Antonin Scalia.

After wondering if Scalia’s death was a sign from either God or Satan, Joyner again insisted that while he doesn’t like conspiracy theories, “there’s something really suspicious” about Scalia’s death: “There’s something really fishy about this that needs to be answered.”

“This could fracture our nation and bring about Civil War,” Joyner said of Scalia’s death. “It has that potential. That sounds extreme but, I tell you, you wait and see.”

This led him to declare that the Supreme Court has become an out-of-control force of tyranny and that the five justices who ruled in favor of marriage equality “need to be impeached.”

Steve King Admits The Supreme Court Blockade Is All About Politics

In comments captured by Americans United for Change at CPAC last week, Rep. Steve King praised Sen. Chuck Grassley’s stance that the Senate should not even consider any jurist nominated by President Obama to fill the vacancy on the Supreme Court.

While Grassley, the Iowa Republican who chairs the Senate Judiciary Committee, has insisted that he is blocking a Supreme Court appointment because he’s abiding by a (nonexistent) tradition that the Senate doesn't confirm justices during an election year, King seemed to give away the game and admit that Senate Republicans are engaging in a political fight to stop Obama.

Video via Democracy Partners / Americans United for Change.

The Iowa Republican congressman said he would support Grassley’s Supreme Court blockade “as long as he’s blocking an Obama appointment.” King dismissed concerns about the Senate’s constitutional obligation to consider Supreme Court nominees and made it clear that the blockade is all about anti-Obama politics.

I’m going to defend Chuck Grassley and whatever he decides to do on this at least as far as — as long as he’s blocking an Obama appointment. And I say that because I’m on the Judiciary Committee in the House, we have a voice but we don't have a vote, that this argument about who should do the nomination and whether there should be the advice and consent of the Senate so that the president can make that appointment, this swings back around.

There will be all kinds of constitutional arguments that are made and they will say “process” and "tradition” and “constitution” and “precedent” are going to guide us all. And then they’ll make up those that support their argument and some of them who are making those arguments will be contradicting their previous arguments the last time these things came up, like Schumer, for example.

But in the end, we should understand that it’s a political argument and a political clash of this will be played out with higher and higher intensity moving forward until November. If Chuck Grassley and Republicans can hold off on a nomination or vote down a nomination until the election, then I think it will be clear that it’s not going to happen until the next president makes that appointment.

After shrugging off the Constitution’s “advice and consent” provision, King said he would only support judicial nominees “who believe and adhere to the principle that the Constitution means what it says and needs to be interpreted to mean what it was understood to mean at the time of ratification.” (That’s code for results-based rulings cheered by conservatives.)

Rafael Cruz: Gay Marriage Will Destroy Society

Rafael Cruz, the father and campaign surrogate of GOP presidential candidate Ted Cruz, launched into yet another rant about the Supreme Court in an interview today on “Breitbart News Daily,” this time warning that an additional “liberal justice” on the high court will destroy all of society.

“One more justice like that,” the elder Cruz said of the four justices appointed by President Clinton and President Obama, “and we will lose our right to keep and bear arms. We will lose all of our religious freedom. We will see abortion on demand to the day of delivery. We will see the destruction of traditional marriage, and the family is the foundation of society — if the family is destroyed, society will be destroyed.”

Of course, the Supreme Court ruled last year in favor of marriage equality — which conservatives deride as “the destruction of traditional marriage” — and society has somehow managed to survive.

He went on to say that Donald Trump would appoint a liberal jurist and so “it would be disastrous if [he] became president,” alleging that Trump is a phony conservative who “lies constantly.”

“Trump is the biggest enigma we have,” he added. “We don’t know where he’d be on any issue.”

Do Conservatives Even Believe In The Bill Of Rights?

The Judicial Crisis Network (JCN) has somehow managed to stoop even lower in its dishonest and deceitful campaign to block the Senate from even considering whomever President Obama nominates to fill the vacancy on the Supreme Court.

Carrie Severino of JCN, which was founded as the Judicial Confirmation Network but rebranded as a group opposed to judicial confirmations coincidentally after Obama took office, took to National Review last week to attack Jane Kelly, a U.S. circuit court judge whom Obama is reportedly considering nominating to the high court, for once defending a child predator while working as a public defender.

As Zachary Pleat of Media Matters pointed out, Severino not only twisted Kelly’s actions in the case, but attacked Kelly simply for doing her job as a defense attorney.

Severino, a former clerk for Justice Clarence Thomas, must know that even people accused of heinous crimes have a right to an attorney who would vigorously defend their client. It would completely undermine the judicial process to say that the accused should have no legal representation or should have a lawyer who will simply throw the case rather than fulfill their obligation to defend them.

After all, the right to a fair trial lies at the heart of the Sixth Amendment, and JCN actively promoted the confirmation of Chief Justice John Roberts, who once worked on the defense of convicted murderer John Ferguson.

This attack, Pleat writes, “echoes past right-wing media attacks on Democratic presidential front-runner Hillary Clinton and former Department of Justice civil rights division nominee Debo Adegbile.”

Several conservative pundits accused Clinton of leading a “war on women” after she was asked by a judge, in 1975, to defend a sexual assault suspect while she was working in legal aid, while Senate Republicans successfully blocked Adegbile’s nomination to head the Justice Department’s Civil Rights Division because they were upset he once worked on a legal team representing Mumia Abu-Jamal, who was convicted of killed a police officer, on an appeals case regarding whether sentencing instructions given to a jury were constitutional. As Miranda said:

It was an ugly episode, in which politicians like [Ted] Cruz essentially declared that not all criminal defendants deserve the Constitution’s guarantee of legal counsel. And it’s telling that Cruz, the self-proclaimed lover of the Constitution, brought it up in his latest ugly screed.

Clinton and Adegbile aren’t the only people targeted by Republicans simply for acting as defense attorneys.

In 2014, the Republican Governors Association (RGA) ran attack ads against South Carolina state Sen. Vincent Sheheen, a Democratic candidate for governor, for his work as a criminal defense attorney, using the tagline: “Vincent Sheheen: he represents criminals, not us.”

South Carolina Bar Association President Alice Paylor said the RGA ad campaign amounted to an attack on “the whole basis for the U.S. and the U.S. Constitution. According to them, I guess everyone accused of something is automatically guilty.”

The American Bar Association sent a letter to Gov. Chris Christie, a former prosecutor who chaired the RGA at the time, noting, “Lawyers have an ethical obligation to uphold that principle and provide zealous representation to people who otherwise would stand alone against the power and resources of the government – even to those accused or convicted of terrible crimes.”

The rule of law that governs our society delivers justice specifically because everyone has a right to competent representation. This right is especially important for those who arouse our fear and anger, to ensure that the process by which they are judged is fair and just. This process is what distinguishes us from our darker history, when mobs decided guilt or innocence and punished those they deemed guilty.

And in 2010, a group formed by Bill Kristol and Liz Cheney, the daughter of former vice president Dick Cheney, launched attack ads “against the Obama Justice Department for hiring lawyers who, at one time or another, did legal work on behalf of terror suspects.” The group branded the lawyers the "Al Qaeda 7," questioned their loyalty to the country and demanded that the Justice Department release their names.

We can only imagine how Republicans would have gone after John Adams for representing soldiers charged with murder during the Boston Massacre.

PFAW Targets Sen. Pat Toomey for Supreme Court Obstruction with Robocalls from Alfre Woodard

In a robocall released today by People For the American Way, award-winning actress Alfre Woodard calls Pennsylvania voters urging them to contact Senator Pat Toomey (R-PA) and demand that he give fair consideration to President Obama’s Supreme Court nominee. As the call states, Sen. Toomey has declared that he won’t fulfill his constitutional duty and instead falsely asserts it’s “not that big a deal” if the Supreme Court vacancy lasts for over a year.

“Sen. Toomey’s irresponsible obstruction is inexcusable,” said Marge Baker, Executive Vice President at People For the American Way. “The Constitution is very clear that it’s the job of Senators to give fair consideration to Supreme Court nominees, and there’s certainly no exceptions during election years. Not only is it a ‘big deal’ if Sen. Toomey and his fellow Republican Senators refuse to do their jobs, it’s a crisis of constitutional proportions.”

This is the second set of robocalls that PFAW has launched on this issue. In February, Martin Sheen called Wisconsinites targeting Sen. Ron Johnson (R-WI) for his obstruction on the Supreme Court vacancy.

Listen to the call here: 



A transcript of the recording for today’s Pennsylvania calls reads:

Hi, this is Alfre Woodard, calling on behalf of People For the American Way.

When there’s a vacancy on the Supreme Court, the Constitution is clear about what happens next: the President nominates a new Justice and the Senate gives that nominee fair consideration.

But Republicans, including Senator Pat Toomey, are playing politics with the law and saying they won’t fulfill their constitutional obligation. Toomey even said it’s “not that big a deal” to leave the ninth Supreme Court seat empty for more than a year!

He couldn’t be more wrong.

Call Senator Toomey at (202) 224-4254, and tell him you expect him to put his Constitutional duties first—and give fair consideration to President Obama’s nominee.

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

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Ted Cruz: Supreme Court On Brink Of Throwing Religious People In Prison

Last week at CPAC, Ted Cruz continued to baselessly assert that the Supreme Court is on the verge of crushing all freedom in America.

“We are one liberal justice away from the Supreme Court ruling that government can take our religious liberty away and force every one of us to violate our faith on penalty of prison or fine,” Cruz said. “We are one liberal justice away from the Supreme Court ordering Ten Commandments monuments torn down all over this country. We are one liberal justice away from the Supreme Court erasing the Second Amendment from the Bill of Rights.”

He went on to warn that the World Court will reign supreme and veterans memorials will be torn down across America if Democrats are allowed to place any more justices on the Supreme Court.

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