Supreme Court

Sen. Kelly Ayotte Should Fulfill Constitutional Duties or Resign

In response to Sen. Kelly Ayotte standing with the Senate Republicans on the Judiciary Committee who committed yesterday to not hold any hearings for a Supreme Court nominee from President Obama, People For the American Way New Hampshire Coordinator Lindsay Jakows issued the following statement:

“New Hampshire voters elected Senator Kelly Ayotte to fulfill her job duties as laid out in the Constitution. For her to put partisanship above her constitutional obligations by refusing to even hold hearings to consider a Supreme Court nominee is nothing short of a dereliction of duty. If she’s not prepared to fulfill her Constitutional responsibilities, she should resign.”

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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PFAW: Senate Judiciary Committee’s Blind Obstruction is “Height of Irresponsibility”

WASHINGTON – Today the Republican members of the Senate Judiciary Committee sent a letter to Senate Majority Leader Mitch McConnell making clear that the committee will not hold hearings on any nominee put forward by President Obama. People For the American Way Executive Vice President Marge Baker released the following statement:

“Even for a political party that has made obstruction its usual approach, Senate Republicans’ blind obstruction on this is, in a word, stunning. Announcing that they will not even consider a nominee, no matter their qualifications, before the nominee is even announced, is the height of irresponsibility. If there was any question about whether Republicans on the Judiciary Committee would refrain from ignoring their constitutional duties and pandering to the extremism of their party bosses, that has been put to rest today. We call on all senators to fulfill their constitutional duty and give fair consideration to the nominee to be submitted by the president.”

Recent polling from Fox News found that most Americans (62 percent) believe that the president and Congress should fill the Supreme Court vacancy.

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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Meet A Law Professor Conservatives Turn To On Marriage, Immigration And The SCOTUS Blockade

Among the right-wing figures encouraging Republican senators to block any nominee President Obama might make to the U.S. Supreme Court last week was law professor John Eastman, who right-wing radio host Hugh Hewitt calls “perhaps the most revered center-right specialist in America.” If that’s true, it may be because Eastman puts himself out there on so many issues that rile today’s far-right. He chairs the anti-gay National Organization for Marriage and he is also one of the leading voices in opposition to birthright citizenship. His advocacy pretty much covers the right wing’s public policy wish list.

On Hewitt’s radio show on February 15, Eastman called Scalia’s death a “devastating loss” not only for Scalia’s family “but also for our understanding of the appropriate role of the court in constitutional adjudication.”  Eastman agreed with Hewitt’s assertion that it is “well within” Republican senators’ constitutional authority “not to give a hearing or a vote to President Obama’s nominee,” saying that Republicans “ought to oppose with every bit of their power” the kind of nominee he would expect from President Obama, someone who he believes will “try and nail the lid in the coffin on advancing his radical transformative agenda.”

Eastman said Scalia’s death will put the role of the high court at the center of the presidential campaign, declaring that “there is a fundamental difference” between the political parties on a central question: “Do we live in an autocratic, unelected regime run by nine black robed individuals, or are we the people the ultimate sovereigns in this country?”

That’s the kind of rhetoric that warms the hearts of far-right leaders like Sharron Angle, the Tea Party activist who lost a challenge to Nevada Sen. Harry Reid in 2010 and whose is encouraging an effort by a couple of state legislators to draft her for a 2016 Senate bid. “The U.S. Senate should absolutely put a hold on any nomination this President sends to the hill,” Angle said last week. “We have to stop the damage to the Constitution now!”  Angle went even further, declaring that Eastman would make the “perfect” Supreme Court justice.

If he ever did make it onto the court, Eastman would manage the remarkable feat of being to the right of the late Justice Scalia. Like Chief Justice John Roberts, Scalia opposed the Supreme Court’s infamous 1905 Lochner decision, which ushered in an era in which the court routinely rejected economic regulations, like a state limiting the hours employees could be required to work, and exhibited hostility to union activity. On Hewitt’s show, Eastman recalled Scalia turning a speaking invitation into a forum on Lochner, on which Scalia disagreed with Eastman, who is part of a pro-Lochner movement in right-wing legal circles.  Eastman also takes a fringe position, one held on the current Supreme Court only by Justice Clarence Thomas, that the First Amendment’s ban on the establishment of religion cannot be properly applied to the states.

Eastman is a professor  at Chapman University’s Fowler School of Law in California and is the founding director of Center for Constitutional Jurisprudence, affiliated with the conservative Claremont Institute. He stepped down as dean of the law school to run for California attorney general in 2010. National right-wing leaders, including Ed Meese, Ed Whelan, Bill Bennett, Michele Bachmann and others backed his bid, but he failed to win the nomination.  Eastman, who clerked for Supreme Court Justice Clarence Thomas and 4th Circuit Appeals Court Judge Michael Luttig, worked at the U.S. Commission on Civil Rights during the Reagan administration. In 1990 he was the GOP nominee for Congress from the 34th District in California.

A few highlights (or lowlights) from Eastman’s activism and rhetoric:

Role of the Courts

Eastman, who chairs the National Organization for Marriage, appeared at a July 2015 Senate hearing convened by Ted Cruz after the Supreme Court’s marriage equality ruling, which Cruz called “the very definition of tyranny.”

Eastman agreed with Cruz’s call for Supreme Court justices to be subjected to judicial retention elections and term limits, and added his own proposals to keep the court in check. He said a simple majority of states should be allowed to override “egregiously wrong” Supreme Court decisions, and that Congress should be able to veto Supreme Court rulings by a two-thirds majority in both houses.  He also suggested that Congress should impeach judges whose rulings it considers unconstitutional.  And he interpreted Scalia’s dissent in the marriage case to be “an invitation to executive officials throughout the land to refuse to give their ‘aid’ to the ‘efficacy of the’ Court’s judgment in the case.”

I truly hope this Committee will give serious thought to these proposals, advancing them with your approval, first to the full Senate, then to the other House, and then ultimately to the people for consideration and hopefully ratification. But I encourage you to do that soon, as I sense in the land a strong feeling that our fellow citizens are about out of patience with the “long train of abuses and usurpations” that have emanated from an unchecked judiciary. They have demonstrated for a very long time now that they, in the words of the Declaration of Independence, have been “more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms [of government] to which they are accustomed.” We should not expect that the patience of our fellow citizens will last forever. Let us now, therefore, in good faith, advance solid proposals to restore and expand checks and balances on the judiciary before that patience runs out.

Marriage and LGBT Equality

In 2000, Eastman called homosexuality an indicator of “barbarism.” He called the Supreme Court’s 2003 Lawrence decision, which overturned laws criminalizing consensual gay sex, a “despotic” decision.

Given his position at the National Organization for Marriage, which he has chaired since 2011, it is not surprising that Eastman’s rhetoric in opposition to marriage equality has been consistently hostile. When he took the position, he told the conservative National Catholic Register, “Evil will be with us always, and it requires constant vigilance to defeat.”

At the 2012 Conservative Political Action Conference, Eastman attacked the Ninth Circuit decision overturning California’s Proposition 8 and warned that legalizing marriage for same-sex couple would hurt children and have “catastrophic consequences for civil society.” He said marriage equality “would destroy the institution that has been the bedrock of civil society since time immemorial.”

At the June 2014 March for Marriage in Washington, organized by NOM, Eastman said that Justice Scalia’s dissent from the court’s 2013 decision overturning the federal Defense of Marriage Act was “a call to arms.” “Let the justices know that we will not tolerate them redefining marriage!”  he said. “The good of society and the wellbeing of our children depend on it!”

In 2014, after the Supreme Court refused to hear an appeal of a federal court ruling that made legalized marriage for same-sex couples in North Carolina, Eastman told North Carolina legislative leaders to defend the state’s marriage ban anyway — even though Attorney General Roy Cooper had said it would be a waste of taxpayer money. The Charlotte Observer later reported that the Claremont Institute, where Eastman serves as the director for the Center for Constitutional Jurisprudence, had billed North Carolina $78,200 for its work defending the law, a price that it said included a “public interest” discount.

In an April 2015 podcast for the Constitution Center following oral argument in Obergefell, Eastman said it was “perfectly legitimate” to limit marriage to opposite-sex couples due to their “unique procreative ability.”  He denounced the Supreme Court’s 2015 marriage equality ruling as “not only wrong, but illegitimate,” going so far as to encourage anti-equality groups in Alabama to resist the decision. 

In 2015, commenting immediately after the Supreme Court’s marriage equality ruling for a Federalist Society podcast, Eastman called it “surreal beyond belief” to believe the people who ratified the 14th Amendment would believe that it mandated “the redefinition of a core social institution that is both religiously and biologically grounded.”

Eastman has praised Rowan County, Kentucky, clerk Kim Davis, who tried to stop her county office from issuing marriage licenses to same-sex couples after the Supreme Court’s ruling, saying  “She confronted what I call a Thomas More moment, and she’s demonstrated her saintliness in how she’s responded to this.”

Outside of marriage equality, Eastman has said that a ruling by the Equal Employment Opportunity Commission’s decision to treat discrimination on the basis of sexual orientation as a form of sex discrimination was an example of the “utter lawlessness” of the way “these agendas are being pushed through.”  Last July Eastman said that some gay rights activists “in their candid moments … have admitted that they want to destroy the church, and they want to destroy the family…”

A few months ago, Eastman reacted to Hillary Clinton’s address to the Human Rights Campaign in a radio interview in which he denounced the LGBT equality movement as “fascist” and claimed that it was promoting pedophilia:

This is not about anti-discrimination laws any more. This is about forcing people to bend the knee to an agenda to say things that are inherently immoral are in fact normal and moral … It’s a very fascist movement that forces a viewpoint on other people that disagree ... We’re finding challenges to age of consent rules because a good portion of this movement seeks to remove age of consent so they can have sex with teenage boys.

He claimed that the LGBT movement’s actual goal was not to achieve the right to marry but to destroy the institution of marriage, because the family is a bulwark against unlimited and omnipotent government.

Support for Uganda’s Anti-Homosexuality Act

In 2015, Eastman gave a speech at the Family Research Council defending Uganda’s notorious Anti-Homosexuality Act and saying he hoped the law — rejected by the country’s Supreme Court over a procedural issue — would come back “in short order.”

He cited as justification for the law President Mouseveni’s claims that “western groups” were trying to use the schools to recruit children into homosexuality.  Eastman said that the law’s provision for lifetime in prison was only for “aggravated homosexuality,” which he defined as “homosexual acts” by someone with HIV/AIDS or “homosexual acts with minors.” In reality, the law’s definition of “aggravated homosexuality” also included serial offenders. As he noted, the law included prison terms for someone who “counsels” a person into homosexuality, a provision that seemingly did not bother Eastman. The law would even have imposed a prison term of up to seven years for attempting “to commit the offence of homosexuality.” Eastman denounced American opposition to the bill as “cultural imperialism.”

Eastman also joined Family Watch International’s Sharon Slater as a speaker at a “National Family Conference” in Nairobi in 2015; the conference was sponsored by Kenya Christian Professionals Forum, a group that not only supports the country’s law criminalizing homosexual sexual activity, but fought to prevent LGBT groups from even being allowed to legally register as advocacy organizations.

Immigration as Invasion

Eastman has also become one of the most visible advocates for eliminating the 14th Amendment’s protection of birthright citizenship. Actually, Eastman believes there’s no need to change the Constitution or law in order to deny citizenship to children born in the U.S. to undocumented immigrants, just a court decision to correct what he thinks is an erroneous interpretation of the 14th Amendment.

In December 2014, Eastman testified at a Senate Judiciary Committee hearing on President Obama’s executive actions on immigration, which he said violated the Constitution. Eastman rejects the idea that the administration’s actions reflect an exercise of prosecutorial discretion.  Obama, he said, “has taken it upon himself to drastically re-write our immigration policy, the terms of which, by constitutional design, are expressly set by the Congress.” 

Eastman has been at this for a long time. He testified before a House subcommittee in 2005 in favor of reconsidering birthright citizenship in the wake of 9/11, and he published a paper for the Heritage Foundation in 2006 urging Congress to assert its authority and make clear that children born to people who are not in the country legally are not considered citizens.

In a 2006 Federalist Society exchange, he said:

Our current non-enforcement policy has fostered "outlaw" communities of non-citizens amongst our midst, who not only work illegally, but who are bankrupting our social services systems and who, tragically, are preyed upon by trans-border thugs well aware that their victims will not report crimes for fear of deportation. This is no way to treat fellow human beings. Why should we expect that the new spate of amnesty proposals, whether denominated "guest worker" plans or something else, will not also continue the incentive for illegal immigration that the 1986 Act provided?

In that same Federalist Society Q&A, he noted that the Constitution requires the president to protect the country against invasion, adding, “We have been invaded by more than 10 million people, and it is the president's duty, not just right, to defend against that invasion.” He also challenged the notion of dual citizenship, calling it “self-contradictory” and saying “it has no place in our existing law.”

In 2011, he co-authored an article for a Federalist Society publication defending Arizona’s infamous anti-immigrant bill SB 1070, writing that “Arizona was well within its rights to adopt SB 1070. Indeed, given the border lawlessness that Arizonans are facing, it is not a stretch to argue that the Arizona government may well have been duty-bound to take some such action.”

Church-State

Eastman is critical of more than a half century’s jurisprudence on church-state issues. He says that under the modern view of church-state separation “we completely destroy the foundation for our entire constitutional system.” He has argued that a state taxing people to support an official church, as some states did early in the nation’s history, was not all that coercive and, as we noted earlier, he believes it is wrong to interpret the 14th Amendment as applying the Establishment Clause of the First Amendment to the states.

Eastman champions an expansive reading of the Religious Freedom Restoration Act in line with the Supreme Court’s Hobby Lobby ruling and backs the passage of additional state RFRAs and religious exemptions. He has joined Religious Right leaders in portraying Rowan County, Kentucky, clerk Kim Davis as a heroine for refusing to marry same-sex couples.

Anti-Union

Eastman, not surprisingly, supports right-wing attacks on unions. In a July 2015 blog post, Eastman argued that it is “time to drive a stake through the heart of mandatory dues.” Eastman noted that Justice Samuel Alito, writing in an earlier decision, essentially invited the kind of lawsuit that the Court has agreed to hear this term in the Friedrichs case, which conservatives hope the Supreme Court will use to dramatically weaken the power of public employee unions.

Constitutional Limits on Spending

Eastman has also argued that the country’s view of the Constitution’s Spending Clause has been wrong ever since the Supreme Court’s 1936 decision in United States v. Butler. He believes Congress does not have the constitutional authority to make appropriations for “internal improvements,” citing, among other things, President James Buchanan’s veto of a bill that would have granted public lands to states for the establishment of agricultural colleges.

In 2014 he joined the advisory council of the Compact for America, a group whose goal is to have the states propose and ratify a balanced budget amendment to the U.S. Constitution through an “Article V” convention. Under the proposal, Congress could only increase the debt limit with the approval of a majority of the state legislatures; any new sales or income taxes would require two-thirds approval of both houses of Congress.

Reproductive Rights

At a Federalist Society debate, Eastman referred to Roe v. Wade as one of the Supreme Court’s “grievous mistakes” — like its affirmation of the Affordable Care Act’s constitutionality — to which he would not give deference.  At a Federalist Society panel from 2014 on the ACA’s contraception mandate, he argued that there is basically no distinction between individuals and the corporate structure when it comes to freedom of conscience, a view adopted by the Court majority in Hobby Lobby, which has opened a door to corporations claiming exemptions from generally applicable laws based on the religious beliefs of company owners, such as complying with the requirement that insurance provided for employees include coverage for contraception.  

 

Heritage Fellow: Scalia's Vote Should Still Count From Beyond The Grave

Hans von Spakovsky, a senior fellow at the conservative Heritage Foundation and a former George W. Bush administration Justice Department official, said last week that the Supreme Court should count the late Justice Antonin Scalia’s votes on pending cases in which the justices have already cast preliminary votes.

Von Spakovsky mentioned in particular Friedrichs v. California Teachers Association, a case that would deal a blow to unions and in which Scalia was likely on the anti-union side.

In an interview with American Family Radio’s Sandy Rios on February 15, von Spakovsky said that Chief Justice John Roberts has “an absolute obligation” to count Scalia’s vote in Friedrichs and other cases in which justices have already held conferences.

“After oral arguments before the court, the justices leave the courtroom and they go to a conference room in the Supreme Court building and they take a vote,” he said. “So that’s the point at which they know how a case is going to be decided and the chief justice then makes assignments of who will write the majority opinion and etc. I think the chief justice has an absolute obligation to give credit to Scalia’s vote in those cases that have already been decided, even if he didn’t write his opinion yet, because they know how he would have voted.”

“So on particular cases like the Friedrichs case … that case was argued on January 11, so they know how Justice Scalia cast his vote in that case and I think the chief justice should give credit to it,” he said.

Von Spakovsky is correct that justices cast votes in a private conference after hearing cases … but those votes sometimes change as the justices work on their opinions. Shortly after Scalia’s death, veteran Supreme Court attorney Roy Englert told ABC that the “vote of a deceased justices does not count.”

We can’t help but point out the irony that von Spakovsky has been one of the primary drivers of the myth that massive voter fraud requires suppressive laws that make it harder to vote. One of the voter-fraud specters he has raised is that of people casting votes on behalf of people who have died.

No, Biden Didn't Call For Rejecting All Supreme Court Nominees In Election Years

Within hours of the death of Supreme Court Justice Antonin Scalia earlier this month, conservatives retroactively invented a bogus “tradition” that Supreme Court justices are never confirmed in presidential election years. That claim is demonstrably false, but conservatives are sticking with it in an attempt to justify their efforts to keep President Obama from naming the next Supreme Court justice.

Today, the pro-obstruction crowd thought it got a boost when a short clip of now-Vice President Joe Biden was unearthed from the depths of the C-SPAN archives. In the clip of the 1992 floor speech, Biden, who was then chairman of the Senate Judiciary Committee during what turned out to be the last year of George H.W. Bush’s presidency, urges the president to, in the event of a Supreme Court vacancy, “not name a nominee until after the November election is completed.”

Hypocrisy!

Well, not quite.

As ThinkProgress’ Igor Volsky and Biden himself have pointed out, when taken in context, that wasn't Biden's point. The then-senator made the remarks in the context of a long speech bemoaning the increased politicization of the confirmation process and, in Biden’s words, urging the White House and the Senate to “work together to overcome partisan differences to ensure the Court functions as the Founding Fathers intended.”

Secondly, even if you were to claim that Biden were offering some new rule for blocking Supreme Court nominations, that rule wouldn't cover the current situation.

Look at the timestamp on the video. Biden was speaking on June 25, 1992 about filling a vacancy if a justice “resigns tomorrow or within the next several weeks resigns at the end of the summer.” By June 25, the presidential primaries were over and Bill Clinton was the presumptive Democratic nominee. That’s a very different point in an election year than we are in today, when the vacancy opened so very early on in the presidential nominating contests and with the risk of a Supreme Court seat remaining open for more than a year, severely disrupting two consecutive terms.

If you go back to read the transcript of Biden’s remarks, he repeatedly states that he is concerned about vacancies that occur “in the summer or fall of a presidential election year” — not vacancies that occur as early in the year as Justice Scalia’s did. The last four Supreme Court confirmations took an average of 75 days from nomination to confirmation, meaning that if President Obama nominates anyone in the next month, they could be confirmed well before the period that Biden was supposedly arguing should be off-limits for Supreme Court nominations.

There is still no “tradition” of shutting down judicial nominations for the entire last year of a presidency or of leaving the Supreme Court short-handed for an entire year.

And, as Volsky notes, while Biden didn’t face a Supreme Court vacancy in 1992, his Judiciary Committee did continue approving Circuit Court nominees well through the summer and fall of the election year, a stark contrast to current Republican threats to shut down the judicial nominations process entirely this year:

 

 

PFAW

No, Biden Didn't Call For Rejecting All Supreme Court Nominees In Election Years

Within hours of the death of Supreme Court Justice Antonin Scalia earlier this month, conservatives retroactively invented a bogus “tradition” that Supreme Court justices are never confirmed in presidential election years. That claim is demonstrably false, but conservatives are sticking with it in an attempt to justify their efforts to keep President Obama from naming the next Supreme Court justice.

Today, the pro-obstruction crowd thought it got a boost when a short clip of now-Vice President Joe Biden was unearthed from the depths of the C-SPAN archives. In the clip of the 1992 floor speech, Biden, who was then chairman of the Senate Judiciary Committee during what turned out to be the last year of George H.W. Bush’s presidency, urges the president to, in the event of a Supreme Court vacancy, “not name a nominee until after the November election is completed.”

Hypocrisy!

Well, not quite.

As ThinkProgress’ Igor Volsky and Biden himself have pointed out, when taken in context, that wasn't Biden's point. The then-senator made the remarks in the context of a long speech bemoaning the increased politicization of the confirmation process and, in Biden’s words, urging the White House and the Senate to “work together to overcome partisan differences to ensure the Court functions as the Founding Fathers intended.”

Secondly, even if you were to claim that Biden was offering some new rule for blocking Supreme Court nominations, that rule wouldn't cover the current situation.

Look at the timestamp on the video. Biden was speaking on June 25, 1992 about filling a vacancy if a justice “resigns tomorrow or within the next several weeks resigns at the end of the summer.” By June 25, the presidential primaries were over and Bill Clinton was the presumptive Democratic nominee. That’s a very different point in an election year than we are in today, when the vacancy opened so very early on in the presidential nominating contests and with the risk of a Supreme Court seat remaining open for more than a year, severely disrupting two consecutive terms.

If you go back to read the transcript of Biden’s remarks, he repeatedly states that he is concerned about vacancies that occur “in the summer or fall of a presidential election year” — not vacancies that occur as early in the year as Justice Scalia’s did. The last four Supreme Court confirmations took an average of 75 days from nomination to confirmation, meaning that if President Obama nominates anyone in the next month, they could be confirmed well before the period that Biden was supposedly arguing should be off-limits for Supreme Court nominations.

There is still no “tradition” of shutting down judicial nominations for the entire last year of a presidency or of leaving the Supreme Court short-handed for an entire year.

And, as Volsky notes, while Biden didn’t face a Supreme Court vacancy in 1992, his Judiciary Committee did continue approving Circuit Court nominees well through the summer and fall of the election year, a stark contrast to current Republican threats to shut down the judicial nominations process entirely this year:

 

 

New Poll Shows Obstructionist Stance on Supreme Court Vacancy is Hurting Toomey and Portman With Voters

Note to senators in tough reelection battles: putting your Washington DC party bosses over the Constitution by standing in the way of filling the vacancy on the Supreme Court is not only the wrong thing to do for our country, it’s also making voters less likely to support you.

New Public Policy Polling surveys released today show that large majorities of voters in Pennsylvania and Ohio, where Senators Pat Toomey and Rob Portman are running for reelection, want the vacancy created by Justice Antonin Scalia’s death to be filled this year. According to the polling memo:

  • Strong majorities of voters – 58/35 in Ohio and 57/40 in Pennsylvania – think that the vacant seat on the Supreme Court should be filled this year. What’s particularly noteworthy about those numbers – and concerning for Portman and Toomey – is how emphatic the support for approving a replacement is among independent voters. In Ohio they think a new Justice should be named this year 70/24 and in Pennsylvania it’s 60/37.
  • …Voters are particularly angry about Senators taking the stance that they’re not going to approve anyone before even knowing who President Obama decides to put forward. By a 76/20 spread in Pennsylvania and a 74/18 one in Ohio, voters think the Senate should wait to see who is nominated to the Court before deciding whether or not to confirm that person. Toomey and Portman are out of line even with their own party base on that one – Republicans in Pennsylvania think 67/27 and in Ohio think 63/32 that the Senate should at least give President Obama’s choice a chance before deciding whether or not to confirm them. [emphasis added]

Perhaps most notable for the senators, more than half of voters (52 percent in both states) say they would be less likely to vote for Toomey or Portman if they “refused to confirm a replacement for Justice Scalia this year no matter who it was.” Among independents, the numbers were even higher.

Senators Toomey and Portman would be wise to take heed of their constituents, and of the Constitution, and stop refusing to even consider any Supreme Court nominee, regardless of his or her credentials. Any nominee must be treated fairly and honestly. The Supreme Court is far too important to be held hostage to the overtly political obstruction of GOP senators.

PFAW

Ronald Reagan, 1988: 'Move Quickly' To 'Make Sure There's A Full Nine-Member Supreme Court'

In their effort to prevent President Obama from naming the next Supreme Court justice, Senate Republicans have seized upon a bogus talking point that the Senate has a long-held, bipartisan tradition of refusing confirmation votes to the Supreme Court during an election year.

This claim is demonstrably false, as illustrated by a cursory glance at Senate history and by some of the past statements and even votes of some of the very same senators.

Things got so bad that Ted Cruz, who in the wake of Justice Antonin Scalia’s death was one of the first to call on the GOP to block consideration of any nominee from President Obama, falsely claimed in a presidential debate that Justice Anthony Kennedy was confirmed by the Senate in 1987, when in fact he was confirmed in 1988, the final year of Ronald Reagan’s presidency.

The same politicians who try to out-position one another as a modern-day versions of Reagan must find it pretty inconvenient that Reagan, in his last year in office, urged the Senate to “move quickly and decisively” to “make sure there’s a full, nine-member Supreme Court to interpret the law and to protect the rights of all Americans.”

Howard Mortman of C-SPAN flagged the remarks Reagan made in his 1988 State of the Union address.

As Paul explained last week, filling a Supreme Court vacancy in the last year of a presidency is indeed rare — because it is rare for a justice to die in office, and even rarer for a justice to die in a presidential election year.

But many Republicans, it seems, have found it easier to manufacture phony “traditions” than to admit they want to leave the court shorthanded for a year in the hopes of having a president they like better in the future.

Trump Confidant Roger Stone Wonders If Scalia Was Assassinated

Last week, radio host and conspiracy theorist Alex Jones interviewed Roger Stone, the longtime adviser and confidant of Donald Trump, about the recent death of Justice Antonin Scalia.

Stone, who has served as a go-between for Jones and Trump, was happy to engage in speculation surrounding the justice’s death, just as the GOP frontrunner himself has.

When Jones, who has insisted that Scalia was assassinated and warned that Trump may be next, brought up the “red flags” surrounding the justice’s death, Stone mentioned the assassination of John F. Kennedy.

“I don’t think any of us are claiming foul play, we’d like to rule out foul play, but common sense dictates that there’d be some investigation and some autopsy to make sure this wasn’t another coup d’état,” he said. “We’ve had coups d’état in this country. We had one on November 22nd, 1963, we had another one at the time of Watergate, this could very well be another coup d’état.”

Stone also took time to explain that the New York Daily News has been critical of Trump because its owner, Mort Zuckerman, is “a very short guy, he has no luck with women and he’s very, very jealous of Donald Trump, who is tall, handsome and has the most beautiful wife on the planet.”

Later, Jones hailed Trump as “a hero” who is “under amazing danger” due to a grand plot involving the Vatican, Washington and Wall Street.

“I am so glad I back Trump,” he said. “He’s the real deal. There’s no way he’s an establishment scammer. I can look at their body language, they are crapping their pants, Mr. Stone, and for a lack of a better term, they are scared to death like vampires being hauled out at high noon. I am really concerned about Donald Trump right now. I’m not fear-mongering. I think he’s the most under-threat man on earth right now.”

Right-Wing Activists Suggest Obama Killed Scalia To Impose Martial Law

Two right-wing pundits who have suggested that the White House was behind the death of Justice Antonin Scalia, William Gheen of Americans for Legal Immigration PAC and InfoWars broadcaster Alex Jones, got together last week to discuss their theories about Scalia’s passing, both insisting that they were just asking the question if President Obama killed the conservative jurist.

Gheen rejoiced that more Americans are waking up to the fact that the U.S. “is being destabilized and overthrown by a socialist overthrow of [the] country that’s behind illegal immigration and behind the Black Lives Matter movement,” finding it suspicious that “Scalia was the number-one or one of the number-one top stumbling blocks to that agenda when he died.”

“We are under martial law,” Gheen declared.

Jones said that Scalia was “the one guy standing against” Obama and “was about to say no and they said, ‘Oh really?’”

Michael Savage: 'It's The End Of The World' If Obama Appoints A New Justice To The Supreme Court

On Wednesday, conservative talk radio personality Michael Savage continued to hash out his conspiracy theory that President Obama was behind Justice Antonin Scalia’s death at a Texas ranch.

He told “Savage Nation” listeners that Scalia’s “suspicious” death was the single worst thing to ever happen to the world because if Obama “gets control of that Supreme Court you may as well pack your bags and move. Where? There’s nowhere to move. It’s the end of the world. You heard me, it’s the end of the world. Not the end of America, the end of the world.”

“Nothing worse could’ve happened,” Savage said, claiming that the U.S. will go “right into the toilet bowl” if Justice Ruth Bader Ginsburg gains more clout on the court.

He then said the FBI would never investigate Scalia’s passing because it’s “in the back pocket of Barry Obama’s Blackberry union.”

On SCOTUS Obstruction, Republicans Are Citing A 'Precedent' That Doesn't Exist

The following is an excerpt from a post on the People For blog on the Republican attempt to block any nominee President Obama chooses to fill the Supreme Court vacancy left by the passing of Justice Antonin Scalia:

Just as the Constitution and principle are not on the GOP’s side, neither are the facts. For instance, Ohio Sen. Rob Portman has said that “it's been nearly 80 years since any president was permitted to immediately fill a vacancy that arose in a presidential election year.” His constituents could be forgiven for inferring that the situation we now face is common, and that nomination and confirmation of Scalia’s replacement this year would go against historical norms.

However, the current situation is anything but common. The fortunate reality is that it is extremely rare for a Supreme Court justice to die in office. In fact, since 1950, this is only the fourth time a sitting justice has passed away, and this is the only time it has happened in a presidential election year:

1. Chief Justice Fred Vinson – died in 1953

2. Justice Robert Jackson – died in 1954

3. Chief Justice William Rehnquist – died in 2005

4. Justice Antonin Scalia – died in 2016

Thankfully, this is an extremely unusual situation. Republicans cannot cite precedent for an incumbent president under these circumstances to abstain from carrying out his constitutional duties and force Americans to wait a year or more for the next president to fill a sudden, unexpected vacancy on the nation’s highest court, simply because it was a presidential election year when a justice died.

Justices who retire often time their announcements in time for a replacement to be nominated and confirmed by the beginning of the next Supreme Court term. That is why most of the current justices were able to take their seats in time for the traditional First Monday in October, ensuring a full complement of nine justices. As an alternative way to protect the institution, Sandra Day O’Connor agreed to remain on the Court until her replacement could be confirmed. So even though Justice Alito was confirmed in January 2006, the middle of the term, the nation’s highest court was not forced to operate short-staffed. In ways such as these, retiring justices have sought to protect the integrity of the Court by ensuring it be able to operate at full capacity.

Unfortunately, despite Justice Scalia’s devotion to the Court he served on for three decades, he did not have the opportunity to protect it from having to operate short-staffed. And yet many Republicans are vowing to keep the Court hobbled for as long as possible.

The Judicial Crisis Network's Incredibly Dishonest Pro-Obstruction Ad

The messaging that conservatives seem to have settled on regarding the Supreme Court vacancy left by the death of Justice Antonin Scalia is that somehow Americans won’t have a say in who the next justice is unless the confirmation of any nominee is stalled until after the next president takes office. (No matter that the current president was, in fact, elected by the American people for this very job.)

The first TV ad out of the gates in the Supreme Court battle comes from the Judicial Crisis Network, which uses this messaging in an effort to pressure Senate Judiciary Committee Chairman Chuck Grassley to stand strong on denying a hearing to any Obama nominee for the seat.

The screen shows softly lit stock footage of diverse Americans as a voiceover says:

It’s ‘We the People.’ Sometimes the politicians forget that. The Supreme Court has a vacancy and your vote in November is your only voice. Sen. Chuck Grassley agrees: the American people should decide. This isn’t about Republicans or Democrats. It’s about your voice. You choose the next president, the next president chooses the next justice. Call Sen. Chuck Grassley. Thank him for letting the people decide.

This is what Vice President Biden might call “a bunch of malarkey.”

At the same time as her group was preparing this ad about the supposed high American ideals of not letting the president fulfill his constitutional obligation to appoint Supreme Court justices, the Judicial Crisis Network’s top attorney, Carrie Severino, was telling a conservative news network something very different, saying that failure to block an Obama nominee would be “political malpractice” on the part of Republicans.

In a statement shortly after Scalia’s passing, Severino made it clear that this stand was specifically about conservatives’ animosity toward Obama, whom, she said, is “the last person” who should be appointing the justice’s successor.

And, of course, we always have to note that during the George W. Bush administration the Judicial Crisis Network was called the Judicial Confirmation Network and that its stated mission was to ensure that “the confirmation process for all judicial nominees is fair and that every nominee sent to the full Senate receives an up or down vote." As far as we know, the Judicial Confirmation Network didn’t oppose any of the 28 federal judges who were confirmed during Bush’s final year in office.

But it definitely “isn’t about Republicans and Democrats”!

Bryan Fischer Says 'God Took Antonin Scalia Home' To Make SCOTUS The Central Issue In The Election

On his radio program today, Bryan Fischer echoed Glenn Beck as he asserted that God "took home" the late Supreme Court justice Antonin Scalia last weekend in order to highlight the importance of the Supreme Court in the upcoming presidential election.

"I believe God took Antonin Scalia home," Fischer said. "Antonin Scalia shows up and God says, 'Well done, good and faithful servant, you lived out every one of the days that I had written for you in my book, welcome home.' And the timing of this, I believe, God was arranging so that the issue in this election would be focused on the Supreme Court, so that the Supreme Court replacement would be the defining issue of this campaign. Because God knows that we're running out of chances, this is God in His grace calling Antonin Scalia home to his reward in order to make this the defining issue of the 2016 campaign."

'All Is Lost': Michael Savage Has Meltdown Suggesting Obama Killed Scalia

On Tuesday’s edition of “The Savage Nation,” Michael Savage expounded on his suspicion that President Obama was behind the death of Justice Antonin Scalia, a theory he shared with GOP presidential frontrunner Donald Trump.

Savage declared that if the scandal is “swept under the rug and Hussein is allowed to railroad his nominee down the throats of the American people without opposition, then all is lost, all is lost.”

He added: “Antonin Scalia was the single largest obstacle to Obama’s end-of-term agenda and that’s all you have to know.”

Referring to the Supreme Court’s move to block new rules on greenhouse gas emissions, Savage claimed that Scalia may have been wacked because he “just killed a trillion-dollar-a-year business for the gangster left in the green business, they’re making more money on green rackets than they ever made in importing drugs, and you wonder why he was dead six days later?”

While chatting with Joe Biggs of the conspiracy-theory clearinghouse InfoWars, Savage insisted that he could have his food poisoned for investigating the justice’s death.

“I’m definitely throwing the pillows off the bed,” Biggs said, a reference to the right-wing conspiracy theory that a pillow found by the late justice’s head was involved in his death.

Savage also linked Scalia’s death to the civil war in Syria. “Putin should get a Nobel Prize for taking ISIS on and putting them on run,” he said, ignoring the fact that Russia is actually bombing the terrorist group’s rivals while largely ignoring ISIS.

He then accused Obama of arming and funding ISIS, unlike Putin, whom Savage said “stepped in as the hero of the world.” “Never forget that Hussein may not be on the side that you think he’s on,” Savage continued. “Never ever forget that his loyalties are questionable.”

After suggesting that the president is a secret Muslim who shows “solidarity with the other side,” he said that "if they can whack a Supreme Court justice and get away with it, tell me what else they can do?”

Five Conservatives Who Think Obama Murdered Scalia

It was inevitable that some conservative activists would push conspiracy theories surrounding the death of Justice Antonin Scalia, warning that Scalia was killed on the orders of President Obama as part of his nefarious plan to introduce socialism and perform demonic pagan rituals.

5) Rick Wiles

End Times radio host Rick Wiles knows the real reason Obama tried to murder Scalia. And as you have probably already guessed, it was part of a numerology-inspired pagan ritual to use Scalia as a human sacrifice to Satan:

4) Ted Nugent

NRA board member Ted Nugent posted on his Facebook page a “report” from a website called InvestmentWatch alleging that Scalia was murdered to help Obama push through his policies on climate change.

 

Who can possibly trust our evil rotten runaway criminal government at this heartbreaking point in time?http://investmentwatchblog.com/the-motive-behind-the-murder-of-justice-scalia/

Posted by Ted Nugent on Wednesday, February 17, 2016

 

3) Alex Jones

Immediately after news broke of Scalia’s death, Alex Jones of InfoWars insisted that the justice was killed as part of an Obama-led conspiracy. The following day, Jones and his news crew agreed that Obama decided to kill Scalia in order to push through gun reform and socialism, while sparking “the final war” over the future of America.

2) William Gheen

The head of Americans for Legal Immigration PAC (ALIPAC), William Gheen, thinks that Obama may have murdered Scalia in order to “hand control of the highest court in our land to liberal socialists for the first time in American history” and change the outcome of an upcoming Supreme Court ruling on the president’s executive actions on immigration.

Judge Scalia's death at the average lifespan for modern Americans, 79 years, comes just in time for the final months of the despised Obama administration. The new math on the Supreme Court without Scalia will allow them to immediately rule in favor of Obama's unconstitutional amnesty for illegals orders! How convenient for the liberals that the death of one man would create such an incredible power to radically transform America in the next few months regardless of if Congress blocks Obama from replacing Scalia! There are so many powerful people with motive to want Scalia dead and now he is dead from 'natural causes' sans any autopsy or toxicology tests to back that up.

1) Michael Savage

Conservative talk show host Michael Savage has brought his suspicions about Scalia’s death all the way to the GOP presidential frontrunner: Donald Trump.

Trump, naturally, said he found the pillow placement on Scalia’s bed "pretty unusual," while Savage called for a Warren Commission-style investigation into his death.

Cruz: 'Disastrous' Marriage Equality Ruling Led To 'Persecution' That's 'Unprecedented'

In an interview yesterday with conservative Christian broadcaster Janet Mefferd, Sen. Ted Cruz once again touted his support from anti-gay leaders including the Family Research Council’s Tony Perkins and the National Organization for Marriage, saying that anti-gay conservatives support him because he knows that the Supreme Court’s “disastrous” and “fundamentally illegitimate” marriage equality decision has led to “unprecedented” persecution.

Cruz told Mefferd that “we are seeing an assault on religious liberty from Washington that is unprecedented,” citing a number of his favorite cases of people supposedly being persecuted by running afoul of state or local nondiscrimination policies, almost none of which have stemmed from the federal government.

Claiming that “these threats are growing and growing,” Cruz said that “much of this persecution is the fruit of the Supreme Court’s disastrous gay marriage ruling last year” — never mind that every single one of the incidents he referenced happened before the ruling and were in no way connected to it.

Cruz declared that it was “very sad” that some of his rivals for the GOP presidential nomination called the Obergefell ruling “settled law,” which is, he said, why anti-gay leaders have flocked to endorse him.

“I believe that decision was fundamentally illegitimate, it was lawless, it was unconstitutional and it will not stand,” he said. “And I would note, that is precisely why Dr. James Dobson has endorsed me in this campaign, it is why Tony Perkins of the Family Research Council has endorsed me in this campaign, it’s why the National Organization on Marriage [sic] has endorsed me on this campaign and has said it cannot support Donald Trump or Marco Rubio because if we’re not willing to defend marriage, we are giving up the foundational building blocks of the family, we’re giving up the Judeo-Christian values that built this great nation.”

Martin Sheen Calls Out Ron Johnson For Putting Partisanship Ahead of the Constitution

In a robocall released today by People For the American Way, Wisconsinites are hearing from Martin Sheen about Senator Ron Johnson’s obstruction of President Obama’s judicial nominees. The recording, which is being delivered to activists in Wisconsin, asks voters to contact Senator Johnson and demand that he fulfill his constitutional duty to give fair consideration to President Obama’s nominee to the Supreme Court.

“There’s no question that Senator Johnson is putting partisanship above the Constitution,” said Marge Baker, Executive Vice President at People For the American Way. “The Supreme Court shouldn’t be held hostage to the same partisan gridlock that’s brought Congress to a halt. Ron Johnson should stop playing politics with the law and make clear that he’ll push for the Senate to give fair consideration to President Obama’s Supreme Court nominee. We’re thrilled that Martin Sheen is willing to lend his voice to this campaign, and we’re looking forward to working with our activists to hold GOP senators accountable for their obstruction.”

You can listen to the call here:

A transcript of the recording reads:

Hi, I’m Martin Sheen, calling on behalf of People For the American Way.

Our Constitution is very clear about what happens when a vacancy occurs on the Supreme Court. It says the President shall nominate a new judge, and that the Senate will give that nominee fair consideration.

As you’ve heard, Republicans are playing politics with our Constitution and with the Supreme Court. Senator Ron Johnson has said he doesn’t think that Congress should even give a fair hearing to anyone nominated by President Obama.

That’s irresponsible, and it puts partisanship above the law.

Call Senator Johnson at (202) 224-5323, 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.

###
 

Heritage Demands SCOTUS Blockade As Part of Scorched-Earth Obstructionism

As the New York Times explained earlier this week, the Senate GOP’s promises to block anyone who President Obama nominates to replace the late Justice Antonin Scalia on the Supreme Court amounts to a ratcheting up of a campaign of obstruction on nominees that has lasted throughout Obama’s time in office.

This is in part thanks to the lobbying of conservative groups who, even before Scalia’s death, were urging Senate Republicans to block nearly every Obama nominee in his final year in office.

A particularly influential force behind this effort has been the Heritage Foundation, the conservative think tank that has in recent years become a bludgeoning arm for the Tea Party as it pressures GOP lawmakers away from allowing the government to function in any sort of bipartisan manner.

Heritage, under the leadership of former Sen. Jim DeMint, and its more explicitly political arm Heritage Action, headed up by Michael Needham, have worked to pressure the GOP to be an immovable agent of obstruction in a divided government. One House Republican accused Heritage Action last year of insisting on “an unachievable standard” of conservativism that actually “hurts” the party’s goals by preventing reasonable action and compromise.

Heritage Action’s version of conservativism is so far out of the mainstream that even Senate Republicans score an average of just 60 percent on its legislative scorecard. The two senators who have perfect scores from group are Sen. Mike Lee and Sen. Ted Cruz, who has been boasting of his bridge-burning obstructionism as he runs for the Republican presidential nomination. (Sen. Marco Rubio, a supposedly mainstream rival to Cruz, ranks an impressive fourth in Heritage’s ranking of senators.)

Heritage Action’s single-minded focus on attacking the Affordable Care Act infamously helped lead to the 2013 government shutdown. One fellow ACA opponent slammed Heritage and Cruz for the ordeal, writing that the “entire affair was bungled by a few narcissistic conservative groups and senators” and ended up actually hurting the cause they were claiming to support.

Heritage and Heritage Action have applied the same scorched-earth tactics to Obama judicial nominations, urging the GOP to shut down all executive branch and judicial confirmations even before the death of Scalia.

Politico reported in January that in advance of a GOP retreat in Baltimore, Heritage Action circulated a document among lawmakers declaring, “Given the Obama administration’s disregard for Congress’s role in our constitutional system of government, the Senate should refuse to confirm the president’s nominees unless those nominees are directly related to our national security.” This echoed previous calls from Heritage’s favorite senators, Lee and Cruz, to completely shut down the judicial confirmation process.

Later that month, Heritage Foundation’s Hans von Spakovsky and American Family Association governmental affairs director Sandy Rios agreed that Republicans should oppose all future Obama judicial nominees because, in von Spakovsky’s words, they would all share Obama’s “radical left-wing views.”

On January 26, Heritage Action announced that it would “continue to oppose all judicial nominees and reserve the right to key vote against any and all judicial nominees retroactively,” meaning that it would count support for any Obama judicial nominee against members of Congress in its scorecards — even, apparently, in votes that had already taken place. Senate Minority Leader Harry Reid specifically called out Heritage Action for pressuring GOP senators against action on judicial nominees.

Unsurprisingly, Heritage Action and the Heritage Foundation are now pressuring GOP senators to hold Justice Scalia’s seat open until the next president takes office. Heritage Foundation president Jim DeMint, who, as a Republican senator, built a reputation as a “warrior for purity” within the party, wrote on Tuesday that the Senate “can and should withhold its consent” from any Obama nominee.

In another interview with Rios on Monday, von Spakovsky offered a barely veiled threat to Republican senators contemplating considering an Obama nominee.

“I think they understand that if they were to confirm a liberal Obama nominee this year, it would be an absolute election disaster,” he said. “I mean, I’ve already heard from folks in the conservative community saying that if any Republican senator works to confirm an Obama nominee, they’re going to be a massive target of people trying to get them out of office because they’ll be so upset about that.”

Now that a Supreme Court seat is at stake, the conservative movement is converging on this line of thinking, inventing bogus new “traditions” in an attempt to justify keeping a Supreme Court seat open for more than a year.

There are plenty of conservative groups that are promising an all-out campaign to keep an Obama Supreme Court nominee off the bench — the Times says that the American Center for Law and Justice, the right-wing legal group founded by Pat Robertson, started opposition research on potential nominees “moments” after Scalia’s death was announced. But Heritage’s commitment to keeping any Obama nominees off the federal bench speaks to the real motivations behind the effort to stop any Supreme Court nominee: turning the Congress into a force of obstruction, not of governing.

Donald Trump: 'Trust Me' To Overturn The 'Shocking' Gay Marriage Decision

In an interview with Pat Robertson’s television network yesterday, Donald Trump insisted that anti-gay conservatives can rest assured knowing that he is committed to overturning the Supreme Court’s landmark decision striking down state bans on same-sex marriage.

When the Christian Broadcasting Network’s David Brody asked the GOP presidential frontrunner what he thought of the Log Cabin Republicans calling him “one of the best, if not the best, pro-gay Republican candidates to ever run for the presidency,” Trump said he hadn’t heard the remarks and criticized the “shocking” and “massive” Obergefell ruling.

Trump also vowed to defund Planned Parenthood unless the group stops performing abortions.

He then told Brody that he would appoint justices who would overturn Roe v. Wade, hoping that the ruling gets “unpassed.”

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