Fair and Just Courts

GOP Obstruction of the DC Circuit: Infographics

Share these infographics to help set the record straight on the DC Circuit.

The Critically Important DC Circuit Court

Despite progressive victories in 2012, the Right’s outsized influence on the United States Court of Appeals for the District of Columbia Circuit gives it the power to undermine progressive laws and thwart the agenda that Americans elected President Obama to pursue.

Trump Gives Another Gift To Far Right With New Supreme Court List

According to news reports, Donald Trump is set to release today more names of individuals whom he would consider nominating to the Supreme Court if elected, a key part of his strategy to win over the Religious Right and the conservative establishment.

The new list includes Republican Sen. Mike Lee of Utah, who, as Peter noted earlier this year, is not only a staunch social conservative but also believes that large parts of the federal social safety net are 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:

Lee also has some ideas about how he’d like to change the Constitution. We wrote when Lee was running for Senate in the Tea Party wave of 2010:

He wants to eliminate capital gains taxes and make the current tax system more regressive – more reliant on lower income taxpayers – and says his favorite approach to taxation would actually be to repeal the 16th amendment altogether, strip the federal government of the power to tax income, and leave it to the states to determine how they would tax their own citizens to pay for the limited federal government that would be left.

He’s a constitutional lawyer who’d like to make lots of changes to the Constitution: he has said he supports repeal of the 17th Amendment, which calls for popular election of U S Senators; he 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; he wants to amend the Constitution to require a balanced federal budget and to impose congressional term limits.

Other names on Trump’s expanded list are also sure to please those who are hoping to radically reshape American law.

The Trump campaign’s statement boasts that one potential pick, Michigan Chief Justice Robert Young, is part of a court majority that has “embraced originalism and led what one scholar described as a ‘textualism revolution.’” The article in question notes that much of the Michigan majority’s philosophy draws on the arguments of the late Justice Antonin Scalia (while differing with Scalia in some ways).

In 2007, Young wrote a majority opinion upholding Michigan’s voter ID law, writing that it was a “reasonable, nondiscriminatory restriction designed to preserve the purity of elections and to prevent abuses of the electoral franchise."

The new list also includes Charles Canady, a Florida Supreme Court justice who served four terms as a Republican in the U.S. House of Representatives in the 1990s. In the House, Canady was the first to introduce the so-called ban on “partial-birth” abortion, a term that had been newly coined by anti-choice activists to stir up opposition to a specific abortion procedure and prompt a legal challenge to undermine Roe v. Wade.

Also on Trump’s list is Timothy Tymkovich, the chief judge of the 10th Circuit Court of Appeals, who wrote that court’s opinion in favor of Hobby Lobby’s attempt to cite religious objections to deny its employees health insurance coverage for contraception. That case later made it to the Supreme Court, resulting in a dramatic reinterpretation of the idea of religious liberty in America.

Trump’s new Supreme Court list is, like his original list released in May, clearly aimed at pacifying social conservatives who want assurance that his federal judges will uphold their policy priorities and by conservative legal groups intent on remaking American law.

Bryan Fischer: Only Those Who Believe In God And Oppose Abortion Are Qualified To Serve As Judges

American Family Radio host Bryan Fischer declared on his radio program on Friday that a person who does not believe in God or who supports abortion rights is unqualified to serve as a judge at any level in America.

Fischer got onto the subject after praising Donald Trump on his radio show for naming Marjorie Dannenfelser of the Susan B. Antony List as the head of his presidential campaign's pro-life coalition.

"I would submit to you that no man is qualified to sit as a judge in America who does not understand and believe that there is a Creator and that the Creator is the source of every single one of our fundamental, inalienable rights," Fischer said, "and that the first of these rights given to us by God is the right to life."

"No one is qualified to sit on any bench in the judiciary at any level, whether municipal or county or local or state or federal," he continued, "no man is qualified to sit on the bench who does not believe in a Creator, does not believe that the Creator is the source of all of our rights and does not believe that the very first of these rights, these legal rights, the constitutional rights, is the right to life."

Conservative Evangelicals Debate Whether Christians Should Support Trump

The National Religious Broadcasters sponsored a debate on Friday morning between two Never Trump evangelicals and two evangelical Trumpers. The event, held at the National Press Club, was emceed by NRB’s President and CEO Jerry Johnson, who called it a “family conversation.” Johnson, whose own inclinations seemed to rest with Trump’s advocates, was careful to say that NRB members are on both sides of the debate and the group itself does not support or oppose political candidates.

Representing the Never Trump position: pundit Erick Erickson and Bill Wichterman, who served in George W. Bush's White House. Arguing that evangelicals should rally around Trump were radio host Janet Parshall and anti-gay activist Bishop Harry Jackson. The event was structured with two rounds, starting with an Erickson v Parshall bout, followed by a Jackson v Wichterman match-up.

Erickson got the ball rolling saying he wouldn’t tell people not to vote for Trump, but he said that Christians with public platforms should not support Trump publicly “because I think it’s harmful for our witness.” When asked about Jesus, he said Clinton called Him her savior, and Trump gave vague and rambling responses.

Justifying support for Trump based on “values,” he said, runs up against the reality of Trump’s behavior as someone who “has bragged in his books about multiple affairs, including with married women, has cheated widows and single moms and the elderly out of money through Trump University, has stiffed the low-income worker on his buildings, telling them if they want to collect everything they’re owed they need to sue. Why do you go with him instead of her? Well, you say, ‘our values.’ How does he represent our values?...If you want to advocate for that, OK, but how are you advancing the kingdom of God?” Trump, he noted, says he’s a Christian but has repeatedly said he has never repented or asked for forgiveness.

To those who have suggested God could be using Trump like he used biblical figures like King Cyrus, Erickson said God had done that on His own and “has never asked His people to choose the evil.” Erickson said that he’s sure that there were some in Babylon saying “go on and bow, it’s just a statue,” but that the names we remember are those who resisted.

Parshall seemed a bit peeved about Erickson’s arguments. She talked about the supermajority support Trump is getting from conservative Christians and adopted evangelical pollster George Barna’s nomenclature for “SAGE Cons” – Spiritually Active Governance Engaged Conservatives. Trump’s support from that group, she said, has grown from 11 percent early in the year to 80 to 85 percent now.

“I’m interested in keeping the republic,” Parshall said. She dismissed the question of Trump’s character by saying that everybody is a sinner and “God has a track record of using flawed and broken people, even when it doesn’t look right to us.” She read a long list of moral failings by presidents throughout history, saying, “We are not electing a Messiah.” She did a similar litany with biblical figures, saying, “Noah was a drunk. Abraham lied. Jacob was a liar. Moses was a murderer. Samson was a womanizer. Rahab was a prostitute. Elijah was suicidal. Isaiah preached naked. Jonah ran from God. Job went bankrupt. Peter denied Christ.”

Parshall suggested that Trump’s victory over the huge field of Republican competitors was a sign of God’s favor: “For those who have been praying and fasting through, during and for this process, have we now believed the sovereignty of God didn’t apply? Did He take off to Philadelphia, as W.C. Fields said? Or was a God sovereign in this entire process? Can God raise up a leader who just doesn’t look right to us, but is exactly who God wants for such a time as this?”

During a Q&A session, Parshall said that evangelicals should look to Trump’s pick of Mike Pence, “who represents everything we evangelicals love and support,” as his running mate. Wichterman said that the vice president has as much power as the president wants him to have. Trump, he said, is not someone who surrounds himself with people who challenge his authority or is willing to hear from dissenting opinions. “I don’t have any confidence that Mike Pence, a good man, will be able to have that influence on Donald Trump,” he said.

In his response to Parshall, Erickson said essentially that yes, we are all sinners, but do we revel in our sin or repent of it? Are we to lower the bar or strive for something higher? Embracing Trump, he said, neither glorifies God nor advances the kingdom. Parshall responded that Christians have responsibilities on earth to be engaged culturally and politically. She said she doesn’t care that Hillary Clinton says Jesus is her savior if she also supports “the denigration of marriage” and the “annihilation of the pre-born.” She said she was interested in what a candidate will do for the country and “first, last, and always, what will you do with the court?” She said the difference between the judges Hillary Clinton would nominate and Trump’s list is “the difference between darkness and light.”

Harry Jackson started the second round, making the astonishing assertion that Trump “may be the only one who’s able to bring some substantive healing to the racial divide,” because, Jackson said, he could help the country by advancing “practical answers” on educational and economic opportunity.  Black and Hispanic voters, he said, have too often settled for “the politics of grievance.”

Jackson’s top three reasons for all Christians to vote for Trump were religious liberty, the Supreme Court, and support for Israel. He cited other reasons of particular interest to Black and Hispanic Christians to back Trump, including educational reform, economic development in urban areas, and family-oriented tax policies.

Trump isn’t perfect, Jackson said, but he’s getting better. Besides, he said, a little “organized and strategic chaos” might be just what the country needs to shake up the status quo of generational poverty and explosive racial tension. “We are at a place in our culture that the folks who control the system, their grasping little fingers need to be broken off the controls.”

Wichterman, a former special assistant to George W. Bush who now runs a ministry to congressional staff, established his conservative bona fides by saying that "you’ll have a hard time getting to my right. I’m a Republican because I’m a conservative, and a conservative because I’m a Christian. I believe conservative policies best reflect a Christian worldview.” Wichterman said he had been ready to support any of the other 16 Republican candidates, but is not willing to support Trump. Wichterman said he will vote for third-party candidate Evan McMullin.

Wichterman took on three of the arguments being used to justify evangelical support for Trump: Trump is the lesser of two evils; God uses bad people for good purposes; and Trump is a “good man”—a phrase Pence repeats over and over when talking about Trump.

Wichterman says the lesser of two evils argument is the most compelling. He said he has used it himself over the years, and understands that Trump is more likely to nominate conservative judges. But that’s not enough, he said, because Trump may actually be “a threat to our democratic republic”:

I care about the Supreme Court because I care deeply about the government handed down to us by the founders…Trump, on the other hand, has too often demonstrated contempt for the rule of law. He has sounded more like a strongman impatient with constitutional constraints. He advocates death to the innocent family members of terrorists…He advocates torture, not as a means of extracting important intelligence, but as a means of retribution. He said he would do a hell of a lot more than waterboarding.

Wichterman slammed Trump for praising dictators like Vladimir Putin – who is a strong leader in the same way arsenic is a strong drink – and the Chinese officials who Trump says showed “strength” by slaughtering peaceful protesters in Tiananmen Square. He cited examples of Trump encouraging violence against protesters. “Trump admires strength whatever form it takes,” he said, which is “inimical to the Gospel.”

Wichterman challenged people who say they won’t vote for Clinton because they believe she’s a liar, but will vote for Trump hoping that he’s been lying and doesn’t really mean what he says. Trump, he said, corrupts his supporters and corrupts “what it means to be a Republican.”

Regarding the argument that God uses bad people for good purposes, Wichterman said that doesn’t mean Christians are called to do bad so that good may result. “I’ve heard some evangelical leaders say we need a bad man to stand up to the bullying of the left…It’s almost as if we’re hiring a hitman to play dirty for the sake of good government,” which is an idea, he said, that “has nothing to do with our faith.”

Wichterman said the argument that Trump is a good man, a humble man, a truth-teller, “completely mystifies me.” He cited a litany of Trump outrages, including the implication that liberal judicial nominees should be assassinated and his reckless talk about rigged elections, which could be a set-up to civil strife. “If Trump is a good man, then I’ve got an entirely different definition of what ‘good’ is,” he said.

In his response, Jackson provided an example of the kind of double standard on truth that Wichterman had talked about. Jackson said Trump ran his primary like a “shock jock,” saying things to get attention, but that he is “growing.” Jackson said that people have been failed by both parties and that Trump can be a “change agent” who can move America forward by “pragmatically” addressing race and class issues.

In his response, Wichterman took on Jackson’s “shock jock” justification for Trump’s comments. What should concern us more, he asked, that Trump means the “profoundly destructive” things he says, or that he doesn't really mean them but says them to get some votes? He thinks Trump’s repeated expressions of admiration for Putin suggest that brute strength is “what he really appreciates and adores.”

He returned to his criticism of Trump’s support for dictators and his dog-whistle on “Second Amendment” responses to possible Clinton judicial nominees. “Is that the kind of society we want,” he asked, “where we’re killing one another over our disagreements?” Wichterman said it makes his blood boil when Trump talks about “knocking the crap out of” people. Trump, he said, is “profoundly reckless” with the rule of law, which is “a precious thing.”

When the NRB’s Johnson started a Q&A session, Parshall responded to Wichterman’s support for McMullin, who is a Mormon, by attacking Mormon theology and Mitt Romney:

What I want to know is why we didn’t have this discussion four years ago. We had a man from Massachusetts who was pro-abortion before he was pro-life, who was supporting Obamacare before he said he opposed it. But far more importantly, because this is an evangelical conversation, I love my friends who are members of the Church of Jesus Christ of Latter-day Saints. I’ve coalesced and worked with them on many an occasion. But this is an ecclesiastical conversation. That candidate wore underwear that he felt would protect him from harm, believed that Jesus was Satan’s spirit brother and believed that Jesus had returned already to the earth but only to the southern hemisphere. And yet we have a member of our panel who yet again is advocating another Mormon. If we’re going to have an ecclesiastical conversation about evangelicals, then let’s put doctrine on the table and see if that’s our driving factor.

In response to a later “lesser of two evils” question, Wichterman seemingly responded to Parshall’s attacks on Mormons by saying “I know many non-Christians who have wonderful character, and I know many Christians who have deplorable character.”

In response to a question about whether Trump’s comments about immigrants and others had been misinterpreted as “blanket statements,” Erickson said it is troubling that those in the alt-right who embrace a kind of white “tribalism” hear Donald Trump and think he is one of them. The campaign, he says, has made a mistake in “fostering those dog whistles for that group.”

Johnson asked Wichterman about a video created by Catholics for Trump meant to suggest that Trump’s much-criticized mocking of a disabled reporter might have been a more generic form of making fun of people. Even if you give Trump the benefit of the doubt in that specific instance, Wichterman said, Trump has a habit of “unapologetically” making fun of people for how they look, something Wichterman said is “corrosive to our national character” and “says something deeply wrong about the man’s character.”

In his closing remarks, Wichterman said people do not have to give into a binary choice. The founding fathers, he said, didn’t trust majorities, which is why they built in checks on power, including the electoral college. “I think we need to take seriously Trump’s words,” he said, “and we need to stop hoping that he’s just a huckster and a charlatan and just lying all the time.”

Sen. Elizabeth Warren Talks With PFAW Members About Judicial Nominations

Yesterday, Massachusetts senator and progressive hero Elizabeth Warren joined PFAW’s Michael Keegan and Marge Baker on a member telebriefing to discuss GOP senators’ unprecedented obstruction of judicial nominations at all levels, including their refusal to give fair consideration to President Obama’s Supreme Court nominee.

Sen. Warren noted on the call that Senate Republicans are now “setting new records for obstruction.” She suggested that they “might want to pull a copy of the Constitution out and take a look,” since the document is “crystal clear” about the Senate’s responsibility to confirm or reject the judges the president nominates. Instead, Warren said, GOP senators are trying to hold the Supreme Court seat open for a President Trump so that he can nominate judges who will bend the laws to suit their interests and the interests of their powerful friends.

Sen. Warren encouraged PFAW members and supporters to ask their senators why they won’t do their jobs and to keep up the pressure. “People For the American Way has done a fantastic job of putting pressure on Senate Republicans to give these judges timely consideration and an up-or-down vote,” she said. “This is a tough fight, but you don't get what you don't fight for.”

Marge Baker reviewed the work that PFAW is doing to make sure Republicans are held accountable at the ballot box on Election Day, including on-the-ground organizing targeting senators who have refused to do their jobs and PFAW’s massive Latinos Vote! campaign, designed to make sure Latino voters are ready to help deliver a progressive victory in November.

You can listen to a recording of the call here:

PFAW

Edit Memo: The Disastrous Consequences of a Trump Supreme Court

Trump has vowed to nominate right-wing Supreme Court justices like Antonin Scalia and Clarence Thomas. So what would a Trump Supreme Court actually mean for Americans’ rights and liberties?

Senate GOP Holding Dozens Of Federal Court Seats For Trump

It’s well known that the Senate GOP has been stalling President Obama’s Supreme Court nomination of Merrick Garland for months in the hope that Donald Trump will win the presidential election and eventually fill the vacant Supreme Court seat. This dynamic is playing out in the lower federal courts as well, as Senate Republicans stall confirmation proceedings in an apparent effort to leave as many vacancies as possible for a potential President Trump to fill.

People for the American Way’s Paul Gordon has crunched the numbers and reports in a memo today that by stalling district and appeals court nominations, Senate Republicans are leaving far more lower court vacancies at the end of President Obama’s term in office than Democrats did at the end of President Bush’s.

Gordon reports that there are 87 current circuit and district vacancies in the federal courts today, more than double the number that there were at the beginning of the year. Contrast that with the number of vacancies during the final two years of Bush’s presidency:

Gordon notes that these vacancies do not exist because of a lack of nominees:

Now, in September of 2016, Republicans have an opportunity and a responsibility to fill dozens of vacancies. In addition to Merrick Garland, there are 29 circuit and district court nominees still bottled up in the Judiciary Committee. Only six of them have even had hearings, let alone a committee vote; two of the nominees (both from Pennsylvania) had their committee hearings last year, but Grassley still has not brought them up for a vote.

In addition, there are 20 circuit and district court nominees who have been vetted and approved by Judiciary Committee and who could — and should — have confirmation votes as soon as the Senate returns to Washington. More than a third of these have been pending on the floor for more than six months, including four who advanced from committee back in 2015.

The fact that the Senate GOP is deliberately slow-walking President Obama’s nominees in the final year of his term in office is an open secret. A top anti-abortion lobbyist said this summer that Senate Judiciary Committee Chairman Chuck Grassley and Senate Majority Leader Mitch McConnell have “moved with very deliberate speed on those nominations and it's safe to predict that there will be quite a number of vacant seats on the federal courts, including that Supreme Court vacancy, when the election rolls around.”

"There certainly would be a lot more Obama-nominated federal judges if the Senate had remained in Democrat hands," he added.

Edit Memo: Instead of Protecting the U.S. Judiciary, Senate Republicans are Fighting to Help Donald Trump Transform It

To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: September 6, 2016
Re: Instead of Protecting the U.S. Judiciary, Senate Republicans are Fighting to Help Donald Trump Transform It

After their seven-week vacation, Senate Republicans should be fully recovered from their exhausting pace in processing judicial nominations up through July. After all, it takes a great deal of energy and ingenuity to come up with excuses for refusing to hold committee hearings for people nominated many months ago, and thus needlessly creating a bottleneck in committee; for refusing to allow confirmation votes on nominees long ago fully vetted and approved by the Judiciary Committee, and thus needlessly creating a backlog on the floor; and for staying far from the Senate floor while a nominee you recommended and claim to support is being blocked by GOP leadership, thus demonstrating that GOP senators are far more interested in serving Mitch McConnell than they are in serving their constituents.

For the past year and a half, Majority Leader Mitch McConnell and Judiciary Committee Chairman Chuck Grassley have been blocking hearings and votes on President Obama’s judicial nominees and keeping seats open for a hypothetical future Republican president to fill. But in recent months they have conducted their obstruction specifically so Donald Trump can fill the vacancies … including the Supreme Court seat that Merrick Garland was nominated to fill nearly half a year ago.

While their refusal even to hold a hearing for Judge Garland has garnered significant attention, the GOP’s deliberate sabotage of the rest of the federal judiciary is nothing new. Since Republicans have taken control of the Senate, the pace at which they’ve chosen to process all of President Obama’s judicial nominations has fallen far short of what precedent would dictate.

Refusing to confirm judges has never been the norm even when the Senate and the White House are held by different parties. A useful basis of comparison is George W. Bush’s final two years in office, when Democrats took over the Senate after the 2006 midterms. The McConnell Senate has confirmed only 20 circuit and district court judges during this Congress (along with two Court of International Trade nominees). In contrast, at this same point in Bush’s last two years, the Democratic Senate had already confirmed 58 of President Bush’s circuit and district court nominees, nearly three times as many as the current Senate.

Nor did progress stop after summer recess and during the fall campaign. In September of 2008, then-Chairman Patrick Leahy held committee hearings and then committee votes for ten of George Bush’s judicial nominees, all of whom were confirmed in less than one minute by unanimous consent before the month was out, for a total of 68 by the end of 2008.

Now, in September of 2016, Republicans have an opportunity and a responsibility to fill dozens of vacancies. In addition to Merrick Garland, there are 29 circuit and district court nominees still bottled up in the Judiciary Committee. Only six of them have even had hearings, let alone a committee vote; two of the nominees (both from Pennsylvania) had their committee hearings last year, but Grassley still has not brought them up for a vote.

In addition, there are 20 circuit and district court nominees who have been vetted and approved by Judiciary Committee and who could — and should — have confirmation votes as soon as the Senate returns to Washington. More than a third of these have been pending on the floor for more than six months, including four who advanced from committee back in 2015.

These 20 pending men and women include highly qualified nominees such as Wisconsin’s Donald Schott, who would fill the oldest circuit court vacancy in the nation, a Seventh Circuit judgeship that has been empty since January of 2010. Schott earned the ABA’s highest rating of his qualifications, and he advanced through the Judiciary Committee with strong bipartisan support. He also has the bipartisan support of his home-state senators, Republican Ron Johnson and Democrat Tammy Baldwin.

They also include North Dakota’s Jennifer Klemetsrud Puhl, who would serve on the Eighth Circuit. Approved by the Judiciary Committee unanimously, Puhl will break an important barrier … if Sen. McConnell allows the Senate to vote on her: No woman has ever served as a federal judge at any level in North Dakota, circuit or district. In addition, even though the Eighth Circuit covers seven states (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota), only two judges in this court’s history have been women. Like Donald Schott, Puhl has the bipartisan support of her home state senators, Republican John Hoeven and Democrat Heidi Heitkamp.

The figure below shows the stark difference in the pace of circuit and district judicial confirmations under today’s Republican-controlled Senate as compared to the Democratic-controlled Senate of Bush’s last two years.

Another way of contrasting how seriously Senate Democrats took their job in 2007-2008 versus the attitude of Republicans today is to track the number of vacancies. Judicial vacancies open regularly and predictably, since judges usually announce their intent to retire or go into semi-retirement up to a year in advance. Just to keep the number of vacancies at an even level requires that several new judges be confirmed each month.

At the beginning of 2007, there were 56 circuit and district court vacancies. Throughout the next two years, the number of vacancies generally remained at 50 or fewer, getting as low as 34 in the early fall of 2008. Because an unusually high number of vacancies opened up after Election Day, that number climbed back to 55 by Inauguration Day, but even with that increase, the number of vacancies ended up at about what it had been two years earlier.

Today, in stark contrast, the number of circuit and district court vacancies is climbing, more than doubling from 40 at the beginning of the year to 87 today.

We see the same thing with judicial emergencies, a formal designation assigned by the Administrative Office of U.S. Courts for vacancies where the caseload per judge is so high that it endangers access to justice. Judicial emergencies have skyrocketed from 12 at the beginning of the new Congress to 32 today .* As the chart below shows, Democrats in the Senate during Bush’s last two years did not allow the number of judicial emergencies to increase in a similar fashion, and in fact the number generally remained steady or decreased during most of those two years.

The Judiciary Committee and Senate should be busy this month moving Merrick Garland’s Supreme Court nomination, as well as those of the many, many qualified judicial nominees President Obama has already nominated. The committee has a hearing scheduled this week for several judicial nominees from Texas, but Chairman Grassley and his colleagues have the time and the obligation to hold many more. The judicial branch of the United States is unique, in that it relies completely on the other two branches for its continued existence. President Obama has been fulfilling the executive’s obligation by identifying and nominating qualified people.

But the Republicans controlling the Senate have refused to do their job by allowing fair consideration of President Obama’s nominees throughout the federal judiciary.  Instead, they’re playing political games in order to keep vacancies open for their party’s nominee to fill.


* - Judicial emergencies are based on caseloads, which are weighted to reflect the wide variations in time and resources generally associated with different types of cases. On April 15, the Administrative Office of U.S. Courts list of emergency vacancies began to incorporate a new weighting system adopted a month earlier by the Judicial Conference of the United States. As a result, the number of officially designated judicial emergencies dropped from 34 on April 14 to 28 the next day, a drop that had nothing to do with Senate action.

###
 

PFAW and Granite State Progress Bring the "Supreme Court" to Sen. Ayotte

In light of Sen. Kelly Ayotte’s continued refusal to fill the Supreme Court vacancy, members of People For the American Way and Granite State Progress donned Supreme Court justice robes Wednesday in front of her Nashua office to demonstrate that Granite Staters will be watching the Supreme Court vacancy when she returns to DC from Congressional recess. Members of both groups also brought a symbolic empty chair and a sign reading “fill this seat.”

scotus justice protest

“We’re bringing the Supreme Court to Sen. Ayotte today, since she’s tried so hard to ignore it,” said Linds Jakows, New Hampshire Campaign Organizer with People For the American Way,  “Obstruction that results in leaving the seat open for Trump to fill is neither independent nor bipartisan, as she likes to call herself, and she’s ignoring the majority of her constituents who understand filling this vacancy is crucial in bringing forth justice for millions of people.”

scotus justice protest

Ayotte has remained in lockstep with her party leadership on this vacancy, forcing the highly qualified Merrick Garland to wait more days than any nominee in history. Recently Ayotte called Trump’s Supreme Court shortlist a “good start,” apparently ignoring the many extreme rulings from these judges. One judge on Trump’s shortlist, Steven Colloton, said that a woman who reports sexual harassment cannot take legal action if her employer retaliates by firing her.

scotus justice protest

Participating activists took photo petitions amplifying this message -- Margaret and Rocco Femia and Carol and Karl Stamm called out Ayotte’s hypocrisy and so-called independence, while Marcel ‘Dusty’ Liberge and Steven Goldstein focused on the lack of justice from an 8-member court.

PFAW

Video: Chuck Grassley Just Doesn’t Think The Confirmation Process Is That Important  

It is common for members of the Senate to cite the process of confirming Supreme Court justices as one of their most important responsibilities. These judges receive lifetime appointments and their impact on the law lasts for decades. Senate Judiciary Committee Chairman Chuck Grassley’s continued obstruction of Merrick Garland’s confirmation, though, reveals his lack of respect for his constitutionally mandated responsibility.

Previously, Grassley explicitly spelled out his belief that the confirmation process should not be taken as seriously as other functions of the Senate, such as yearly squabbling over budgets and appropriations.

In 1991, during the confirmation hearings for Justice Clarence Thomas, he explained, “Some have stated that the Senate’s advice and consent role in the elevation of Supreme Court justices, of any Supreme Court justice, for that matter, is the most important power that we in the Senate here exercise.” Grassley continued, “Now, I don't happen to share that view, as important as I take my responsibilities today and through this process, because I happen to feel that confronting the issue of war—as we did only last January, and attempting to bring government spending under control are among the more significant responsibilities that we have.”

“And, of course, I think the Constitution doesn't elevate the confirmation process quite this high. The Constitution shows this because the ‘advise and consent’ role is spelled out in Chapter 2 with executive powers, and not with the legislative powers in Article 1. So I think the Constitution itself indicates it is not a preeminent legislative power,” Grassley concluded.

If the chairman of the Judiciary Committee does not recognize that vetting and voting on the confirmation of Supreme Court justices is one of his greatest responsibilities, perhaps he should relinquish his gavel to someone who does.

Happy Birthday, Phyllis Schlafly!

Today is the 92nd birthday of Phyllis Schlafly, the godmother of the right-wing movement in America. Schlafly broke onto the national scene with “A Choice Not an Echo,” her 1964 book making the case for Barry Goldwater, and she solidified her leadership with her successful campaign against the Equal Rights Amendment. Decades later, she helped rally right-wing opposition to President Obama, hosting a “How To Take Back America” conference during his first year in office. She’s still hard at work, leading Eagle Forum and publishing her Phyllis Schlafly Report newsletter, whose June issue argued for putting Trump’s wall—“and yes, Mexico will pay”—in this year’s Republican platform. Mission accomplished.

It hasn’t been the happiest year for Schlafly, who has been embroiled in a power struggle with a group of Eagle Forum board members, including her own daughter. She also lost a trademark lawsuit against her nephew, who makes Schlafly beer.

On the other hand, Schlafly was an early and ardent backer of Donald Trump, standing up for him in the primaries against many of her Religious Right allies and Eagle Forum colleagues. At this year’s Republican National Convention, Schlafly hosted a “Life of the Party” event celebrating that the GOP has been officially anti-abortion since 1976; she told attendees that she endorsed Trump after he pledged loyalty to a pro-life platform. Party attendees were given copies of the most recent of her more than two dozen books, “How the Republican Party Became Pro-Life.” It’s a short paperback that feels as if it was thrown together after having Schlafly tell war stories about her GOP platform battles over the years.

Schlafly spends most of the book recounting stories of pro-life activists’ efforts to strengthen and protect anti-abortion language at every Republican convention since 1976. It includes the successful resistance led by Schlafly, Ralph Reed, Bay Buchanan and Gary Bauer to Bob Dole’s efforts to soften the anti-abortion language in 1996. (I was in San Diego with a People For the American Way team covering that convention; Reed was gleeful about demonstrating his power to humiliate Dole, which may well have contributed to his November defeat.)

After the quick march through convention history, Schlafly moves into a denunciation of “judicial supremacy,” calling on Republicans to repudiate the Supreme Court’s Roe v. Wade decision. She also calls for nullification of 2015’s marriage equality ruling:

When supremacist judges presume to rewrite portions of our law, most especially if it is a law that we have had for millennia such as our law defining marriage, it’s time for the American people to speak up and say “No” just as Abe Lincoln did when supremacist judges ruled that blacks could be considered another man’s “property.” … All Americans must use every tool in the political process to reject judicial supremacy and return to government by “we the people.”

The book includes a short afterword by Kristan Hawkins, presidents of Students for Life, who calls Schlafly “a great American hero” and celebrates that, thanks to Schlafly and “her army,” there is today “no national Republican candidate who dares be anything other than pro-life!” The final 70 pages of the book, more than half its total length, is devoted to an appendix of anti-abortion and anti-marriage-equality references in Republican platforms and resolutions and excerpts from the 2012 platform.

Earlier this year, Schlafly urged Republican senators to hold firm in refusing to consider a Supreme Court nominee “until we have a Republican who will appoint somebody of the nature of Scalia,” telling her interviewer that the prospect of a Hillary Clinton presidency made her “scared to death.” Republican senators have done as she asked, and Schlafly got her wish in Cleveland with a solidly right-wing platform and the nomination of Donald Trump. But given what current polls suggest that November will bring, she may want to do her celebrating now.

 

PFAW Members Catch Up to Kelly Ayotte in Manchester 5K to Ask if She Trusts Donald Trump to Fill Supreme Court Vacancy

kelly ayotte

Yesterday, at the Cigna/Elliot 5K Road race in downtown Manchester, Sen. Kelly Ayotte revealed a level of trust in Donald Trump’s ability to choose a qualified Supreme Court justice when questioned by a Manchester voter.

Watch her response:

Ayotte, who has repeatedly ignored the vast majority of Granite Staters who want her to do her constitutional duty and support moving forward with hearings and a vote for Supreme Court nominee Merrick Garland, seemed unconcerned with the particulars of Trump’s judgement regarding the next Supreme Court justice, but said she’d looked at the list and thinks it’s a “good start.”

PFAW

Sen. Kelly Ayotte Thinks Trump’s Shortlist to Fill the Supreme Court Vacancy Is “a Good Start”

Thursday at the Cigna/Elliot 5K Road race in downtown Manchester, Sen. Kelly Ayotte revealed a level of trust in Donald Trump’s ability to choose a qualified Supreme Court justice when questioned by a Manchester voter.

Ayotte, who has repeatedly ignored the vast majority of Granite Staters who want her to do her constitutional duty and support moving forward with hearings and a vote for Supreme Court nominee Merrick Garland, seemed unconcerned with the particulars of Trump’s judgement regarding the next Supreme Court justice, but said she’d looked at the list and thinks it’s a “good start.”

See her answer here.

Linds Jakows, New Hampshire Campaign Organizer with progressive advocacy group People For the American Way, said:

“Ayotte tries hard to brand herself as independent and bipartisan, but this is just one of many examples of falling in lock step with her party leadership, who would prefer to put the future of the Supreme Court in Donald Trump’s reckless hands rather than confirm the highly respected Merrick Garland, who received the highest possible rating from the American Bar Association and has waited longer for a hearing than any nominee. Ayotte cannot, for example, pretend to champion women’s reproductive health while approving a shortlist that contains justices that would overturn Roe v. Wade, among other troubling views on issues like LGBT discrimination.”

VIDEO

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 Hosts Telebriefing on the Supreme Court and 2016

Even as GOP presidential candidate Donald Trump hits new lows in his campaign—from attacking Gold Star parents to suggesting gun violence as a way to stop Hillary Clinton—Republican senators continue to hold open the vacant Supreme Court seat for Trump to fill.

Yesterday People For the American Way held a telebriefing for members and supporters about the critical role the Supreme Court plays in 2016 and beyond, and how progressive activists can hold GOP senators accountable for their unconscionable blockade of President Obama’s Supreme Court nominee. PFAW’s Marge Baker, Drew Courtney, and Elliot Mincberg were joined by Public Policy Polling director Tom Jensen to discuss how to make the Supreme Court a winning issue in the election.

You can listen to the full telebriefing here:

PFAW

A Revisionist History Lesson From Marcus Lamb

Back in June, James Robison, a member of Donald Trump's Evangelical Executive Advisory Board, appeared on Daystar's "Marcus & Joni" program, where he and the hosts made the case that conservative Christians must vote for Trump in November because of his promise to appoint hard-line conservatives to the Supreme Court.

In an attempt to demonstrate the importance of the Supreme Court, host Marcus Lamb uncorked an absurd history lesson that would even put a pseudo-historian like David Barton to shame.

"If we get the right person in office and they get to appoint the right judges," he said, "did you know that Roe v. Wade would be reversed? Did you know that same-sex marriage could be reversed? Listen, it used to be the law of the land that you could own slaves. That got reversed in the Supreme Court, so it can change but only it we stand up and do the right thing."

The Supreme Court, of course, never issued any such ruling and, in fact, ruled exactly the opposite, leading eventually to the Civil War and the passage of the 13th Amendment, which abolished slavery.

NC Voting Restrictions Struck Down as Intentionally Discriminatory

A three-judge circuit court panel unanimously agrees that North Carolina passed its law with the intent to discriminate against African Americans.
PFAW Foundation

Jim Bakker: If Trump Loses, Supreme Court Will Shut Me Down

Charisma magazine is highlighting an exchange between televangelist and noted survivalist huckster Jim Bakker and Ramiro Peña, senior pastor of Christ the King Baptist Church in Waco, Texas, that took place on Bakker’s show last week.

While asking Peña a question about the future of the Supreme Court, Bakker said that he believes his TV ministry will be shut down unless Donald Trump wins the presidential election:

If Donald Trump isn’t elected, do you envision America to look good, bad or ugly? What will it look like, say, four years from now if we do not change the court? I know what the last eight years — we have seen the greatest deterioration. I’m afraid if we have another four years we will not even be able to function. I believe that they’ll shut me down. I believe they’re gonna shut anybody outside the church, all religious activity down. What will America look like if we don’t get on the right track?

Peña responded:

Let me speak to the church for just a moment. Just hear me, church. If we don’t elect Donald Trump president, we’re going to end up electing someone who we absolutely know will put justices on the Supreme Court that will be pro-abortion, that will be pro-gay-marriage, that will rob us of religious liberty, will continue to take away and wear away at our right to bear arms. That is the kind of jurist who will be on the Supreme Court and on the federal bench…

Peña noted that Trump has released a list of potential Supreme Court nominees that was vetted by the Federalist Society, and said that if he is elected Trump would have the opportunity to name at least three, and maybe as many as five, justices to the high court:

He has said he will appoint pro-life justices to the U.S. Supreme Court. So on that point, if for no other reason, even if you don’t like some of the things that he has said or done, for that point alone, for the sake of the Supreme Court, and the future of our nation that Pastor Jim is talking about, that’s why I am so convinced that he must be elected the next president of the United States.

 

Trump Lawyer Who Trashed Campaign Finance Laws: SCOTUS List Shows How Trump Will Govern

Among the events hosted by right-wing groups during the Republican National Convention was “The Conservative Pit Stop,” sponsored by the American Conservative Union Foundation with an assist from its friends at the National Rifle Association. The ACU hosts the annual Conservative Political Action Conference, which attracts thousands of participants and a host of Republican officials.

The RNC event consisted of two panel discussions and a surprise keynote from vice presidential nominee Mike Pence. Among the speakers, on different panels, were U.S. senators from opposite ends of the Trump train: early Trump booster Jeff Sessions of Alabama and Utah’s Mike Lee, who was involved in the raucous, unsuccessful Day 1 effort to force a roll-call vote on the convention rules in an attempt to undermine Trump.

Also speaking: Fox News national security analyst KT McFarland, Heather Higgins of Independent Women’s Voice, GOP pollster Kellyanne Conway, Heritage Foundation VP for Policy Promotion Ed Corrigan, platform committee policy director Andrew Bremberg and former chairman of the Federal Election Commission Don McGahn, a Jones Day attorney who is the lawyer for Trump’s campaign.

The two questions formally on the table were “Will conservatives support Trump?” and “Can we reverse the Obama imperial presidency?” For these panelists, not surprisingly, the answers were “yes” and “yes.” Lee said it is in Trump’s power to win over Cruz supporters like him by adding to the campaign’s message a clear stand on reversing the trend of allowing the federal government and executive branch to accumulate too much power.

The Supreme Court was a major topic at the event, as it was throughout the convention, where the court was cited frequently as the ultimate reason for conservative voters to back Trump despite whatever qualms they might have.

Making that point most extensively was Trump counsel McGahn, who called the list of 11 potential Supreme Court nominees released by the Trump campaign the most important insight into how Trump will govern. “For those conservatives who are on the fence…I would counsel them to take a very hard look at this list and I would also counsel them to take a very hard look at what’s at stake in this election.”

McGahn said the list presents “a defining moment” and “a very, very, very clear choice for Americans.” It contains no moderate or “squishy” judges, he said, “no stealth candidates” and “no David Souters.” A number of them, he noted, clerked for Justice Clarence Thomas or the late Justice Antonin Scalia.

“Everyone on the list is already wearing a black robe,” McGhan said. He explained that there were a number of state Supreme Court justices on the list because many conservative “rising stars” whose age puts them in the “sweet spot” for a Supreme Court nomination are not on the federal bench:

Frankly, anyone in what I consider to be the sweet spot barely had an opportunity to be considered for chance to be considered for a federal court appointment in the last Republican administration so I think the rising stars who are conservative, conservative-libertarian, movement conservative, whatever one wants to label themselves, constitutionalist, textualist, etc., etc., are really going to be found on the state courts, simply because that’s where we are generationally.

McGahn did praise by name a few of the federal judges on the list, including William Pryor and Diane Sykes. And he mentioned state Supreme Court justices Allison Eid of Colorado and Don Willett of Texas, an anti-regulatory judge whose opinion in a Texas licensing case McGahn called “a manifesto on economic liberty we have not seen in our lifetime.”

Sessions also praised Trump’s “great list” of judges, saying it contains “no Souters or Kennedys.”

While everyone on the panel loved Trump’s list, the Heritage Foundation’s Corrigan had one more suggestion: In response to a question about what a President Trump should do on his first day in office, Corrigan suggested that he nominate Sen. Mike Lee to the Supreme Court. (Not long ago we discussed Lee's extreme views about the Constitution.)

Trump’s list of potential Supreme Court nominees was reportedly drawn up with help from right-wing powerhouses the Federalist Society and Heritage Foundation. McGahn also seems to have played a role as Trump’s liaison to the conservative and Washington establishments in putting that list together; in his introduction, the ACU’s Dan Schneider said McGahn “gets a lot of credit for those 11 judges.” McGahn also reportedly helped broker Trump’s March meeting with GOP congressional leaders.

What do we know about McGahn? He is a partner at the Jones Day law firm. His uncle Paddy was an Atlantic City power broker who helped Trump cut real estate deals in that town. As a Republican appointee to the Federal Election Commission, McGahn actively resisted enforcement of campaign finance laws and sought to “chip away at election rules and regulations.” MSNBC’s Zachary Roth has said, “if you don’t like today’s almost-anything-goes campaign funding landscape, you can lay part of the blame on McGahn.” 

McGahn has bragged that others have called his tenure “the most consequential of any commissioner.” Says Democratic FEC Commissioner Ellen Weintraub, “He was consequential like a sledgehammer was consequential. He did his best to undermine the law.”

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