Fair and Just Courts

Letter from Top Lawyers at Major Companies Urges Senate to Act on Merrick Garland Nomination

The stubborn refusal by Senate Republicans to consider the nomination of Judge Merrick Garland for the Supreme Court has caused the Supreme Court to deliberate with only 8, rather than its full complement of 9 justices. Senators have a constitutional responsibility to give fair consideration to the president’s nominee to fill a vacancy on the Supreme Court, yet they continue to neglect this responsibility as it has been 100 days since President Obama nominated Judge Garland to fill the seat left vacant by Justice Scalia’s death earlier this year. 

On Thursday, top lawyers from 44 United States companies, such as Nike and Qualcomm, released a letter calling on the Senate Judiciary Committee to move forward on this nomination, emphasizing that “[t]he business community has a great interest in avoiding the legal uncertainty that could result if the vacancy remains unfilled for an extended period of time.”

Bloomberg reports: “The signers of the letter include Michael Fricklas of Viacom; Hilary Krane of Nike; David Ellen of Cablevision Systems Corp.; Ivan Fong of 3M Co.; Donald J. Rosenberg of Qualcomm Inc.; Lori Schechter of McKesson Corp.; and Audrey Strauss of Alcoa Inc. The letter was spearheaded by Jonathan Schwartz, general counsel of Univision Communications Inc.”

PFAW

Garland Gets the ABA's Highest Possible Evaluation

You can practically hear the ABA members saying "WOW!" as you read their report on Merrick Garland.
PFAW

WI Latino & Community Leaders Speak Out Against Trump’s Racist Attack on Judge Curiel, Continued WI GOP Support for Trump

MILWAUKEE – During a press conference today, Wisconsin Latino leaders spoke out against Donald Trump’s racist attacks against Judge Gonzalo P. Curiel and challenged Sen. Ron Johnson’s decision to hold open the Supreme Court vacancy for Trump to fill.

Responding to Trump’s statements that a federal judge couldn’t be fair based simply on his Mexican-American heritage, Sen. Johnson and House Speaker Paul Ryan criticized Trump, yet the two are backing Trump’s presidential bid and Johnson continues to hold the Supreme Court seat open for Trump to fill by refusing to give fair consideration to Supreme Court nominee Judge Garland.   Ryan continues to ignore the ongoing bigotry of Trump’s campaign by categorizing Trump’s latest racist attacks as “out of left field.”

Key statements:

Wisconsin State House Representative JoCasta Zamarripa:

“As a legislator, I work on issues critical to the community I represent, whether that’s working to combat discrimination, support immigrant families, protect voting rights. Donald Trump stands against everything that we stand for.

“Ron Johnson has said that he won’t support Trump if he “crossed a line.” How is it possible that launching racist attacks against a federal judge doesn’t cross the line? And how can Johnson justify holding open the Supreme Court vacancy for someone who shows such disregard to our courts and the Constitution?”

Christine Neumann-Ortiz, Executive Director of Voces de la Frontera:

“Trump’s racist comments against Judge Curiel exposes the true character of the man.  He is both a bully and a fraud.  He is a bully because he uses personal attacks and threats to try to get his way, and he is a fraud because he is a swindler through projects like Trump fake University, his string of bankruptcies, and his made-in-China products.

“The failure of Senator Johnson and US Speaker Paul Ryan or Governor Walker to pull their support, is dangerous.  Their own policy proposals are a dressed up version of Trump’s, but Trump’s appeal to growing a white supremacist movement through hate and violence, is a threat that extends beyond an election, and should be aggressively condemned and marginalized.”

Freya Neumann, Citizenship Coordinator at Voces de la Frontera:

“I came to this country almost 40 years ago from Mexico, and I became a naturalized citizen to challenge stereotypes and combat the racism I experienced and witnessed far too often in Milwaukee. Sadly, in 2016, racism has increased because of Trump’s hate campaign.

“I am though so happy to see many people who are becoming US citizens because like me, they understand that they must stand up to racism by education, voting, speaking out, and demonstrating. Shame on our Wisconsin Republican leaders who disagree with Trump’s message but continue to support him as president; for the US constitution, the founding document of this nation, upholds the ideal that all people are created equal.”

Michael Keegan, President of People For the American Way:

“We now know that Trump has no problem launching racist attacks against judges, and we know that President Obama’s Supreme Court nominee Judge Garland is superbly qualified and has earned significant praise from Democrats and Republicans alike. So why is Ron Johnson holding open the Supreme Court vacancy for a Trump nominee instead of calling for hearings and a vote for Judge Garland?

“It’s time to call the question: Senator Johnson needs to support a fair process for Judge Garland, or else he stands in solidarity with Trump’s racist attacks on our judiciary. He can’t do both.”

For follow-up questions or interviews, please email media@pfaw.org.

###
 

While Trump Makes Racist Attacks On Judge, GOP Holds a Supreme Court Seat for Him to Fill?

This piece originally appeared on the Huffington Post.

It was both completely in character and shamefully beyond the pale when Donald Trump accused Judge Gonzalo Curiel, who is presiding over two lawsuits against Trump University, of having an “inherent conflict of interest” in the cases because of the judge’s Mexican heritage. On Sunday he extended that charge to Muslim judges, who he also suspects would be unable to remain unbiased. If there was a shred of doubt remaining on the question of whether Donald Trump is fit to make judicial nominations before this attack, that debate is now over. Even GOP senators arespeaking out against Trump’s remarks. But in a contortion act that defies logic, those same senators continue to go to extraordinary lengths to hold open the vacant Supreme Court seat for the very person whose approach to judicial matters they are condemning.

GOP leaders rushed to denounce Trump’s remarks about Judge Curiel, with Republican senators including Kelly Ayotte, Jeff Flake, Rob Portman, and Mitch McConnell speaking out against his comments and House Speaker Paul Ryan calling them “out of left field” even though even a casual observer knows they were coming right from home plate for the past year. Trump has been consistent in his baseless attacks on entire communities since the first day of his campaign, when he smeared Mexican immigrants as rapists and drug dealers. And if some in the GOP are (rightly) condemning Trump’s vision of a justice system in which some judges are prohibited from doing their jobs because of their ethnic background, why are they going to extraordinary lengths to put him in the driver’s seat of our nominating process?

GOP senators are still doing everything they can to block President Obama from filling the Supreme Court vacancy. Rather than follow the Constitution and give fair consideration to President Obama’s extraordinarily qualified and respected nominee, GOP senators are running a campaign of unprecedented obstruction in order to allow Trump to make the Supreme Court nomination instead.

Let’s be clear: Trump had already provided countless reasons to call into question his fitness to nominate judges. This is a man who supports killing the family members of terrorists and wants to “open up” libel laws so he can go after journalists. That he’s now implying whole swaths of people are not fit for the federal bench is one of the most disturbing examples yet of Trump’s contempt for the independence of the judiciary and for Americans different from him. It goes against the most fundamental values of our country, and it is Exhibit A of why he should never be the person nominating judges at the Supreme Court or any level.

It’s no wonder Americans are worried about the prospect of Donald Trump making judicial nominations. Even before his attack on Judge Curiel, a recent poll found that the majority of Americans don’t trust Trump to fill the Supreme Court vacancy, and they’re none too pleased with the senators obstructing President Obama’s nominee.Half of voters say they are “less likely to vote for a senator who opposed having confirmation hearings” for Judge Merrick Garland. For Republican senators in tight reelection battles, their unwillingness to do their jobs is increasingly and rightfully becoming a liability with voters.

The fact that GOP senators are flat-out refusing to do their jobs on the Supreme Court was already an outrage. That they are now working to hold the seat open for a man who thinks some judges can’t do their jobs because of their ethnic background or religion is unconscionable and should be, quite frankly, embarrassing to all Republicans. GOP leaders are in a position of both condemning Trump’s approach to judicial issues and working to make sure he’s the one to make lifetime judicial appointments. Make sense? It doesn’t to me, either.

The choice is now crystal clear. It’s time to call the question and give Merrick Garland a vote.  

PFAW

Diamond & Silk: Trump Facing Mexican-American Judge Like Black Defendant Facing All-White Jury

Diamond & Silk, the YouTube duo who have become outspoken Donald Trump supporters and have spoken at a number of his campaign events, defended Trump’s criticism of the judge hearing a fraud case against Trump University yesterday, saying that Trump appearing before a Mexican-American judge is just like a black defendant facing an all-white jury.

“Well, first of all, you know the judge is biased,” Lynette “Diamond” Hardaway told Newsmax’s J.D. Hayworth. “You know, he’s Mexican, he’s of Mexican descent, or his heritage is Mexican. And here’s the deal. It’s just like when you walk into a courtroom [as a] defendant and the jury is all white or vice versa, or when a defense team is defending a black client with an all-white jury.”

Avid Donald Trump fan Ann Coulter made a similar argument on Twitter last week:

More and More Agree: Eight is NOT Enough for the Supreme Court

Over the last few days, both the Washington Post and prominent constitutional law professor Laurence Tribe have joined the growing chorus of voices, including Republican as well as Democratic judges, making clear that eight justices are NOT enough for the nine-member Supreme Court, and that the continuing vacancy caused by Senate Republicans’ unprecedented refusal to even consider President Obama’s nomination of Judge Merrick Garland for the vacant Court seat is unconscionable. As the Post put it, the continued vacancy has required the Court to “punt, duck, dodge and weave around contentious issues,” creating “dysfunction.” These problems are documented in more detail in the recent report by PFAW Foundation and the Constitutional Accountability Center, “Material Harm to our System of Justice: the Consequences of an Eight-Member Supreme Court.”

As the report explains, the continuing vacancy has already produced several 4-4 splits on the Court, leaving the contested lower court decision in place but setting no national precedent. In one situation, the result was that the Court could not resolve conflicting interpretations of federal law on loan discrimination in different lower courts, causing confusion and different rules for different people around the country. Specifically, as a result of this Supreme Court 4-4 split, people in some states can be required to get their spouse to co-sign a bank loan, while in other states, some right next door, that requirement is illegal.

In addition to several 4-4 splits, the continued vacancy has caused the eight-member Court to effectively punt several important cases for later review by a full Court, again leaving uncertainty and confusion as a result. For example, in the Zubik case concerning whether religious employers can effectively deny to their employees contraceptive coverage required by the ACA because of religious objections, the Court vacated conflicting lower court decisions and suggested that the government and the employers try to find a compromise and then go back to the lower courts, and the Supreme Court, if necessary. The continued litigation by some religious employers makes clear that future resolution by a nine-member Court will be necessary. But in the meantime, uncertainty about these important rights remains. As the report explains, the continued vacancy also appears to have decreased the number of important cases the Court has agreed to review next term starting in October, and makes it difficult for the Court to issue important temporary stay decisions in divisive cases where decisions must be made quickly, as in cases seeking temporary halts of executions or new election rules.

As a result, both Republican and Democratic-appointed judges and justices, including Chief Justice Roberts, Retired Justice John Paul Stevens, and the late Justice Scalia himself, have explained that having a full complement of nine members is important for a fully-functioning Court. Justice Ruth Bader Ginsburg agreed last week, commenting publicly that “eight is not a good number” for the Court.

And as the Post also explained, the Senate Republican leaders that are responsible for this problem “are doing more than ever to discredit themselves,” claiming that their blockade is about the non-existent “principle” that a vacancy that arises in an election year should be filled by the next president, contrary to history and the Constitution, while at the same time claiming that Republicans could find no “worse nominee” than Judge Garland. This is despite the fact that these very same Republican leaders, including Senate Majority Leader Mitch McConnell, have agreed that Judge Garland is “well-qualified.”  As the Post concludes, this admission should “end the discussion”: Judge Garland should receive a hearing and should be confirmed. But if the Senate Republican blockade continues, the eight-member Court will only cause further harm to our system of justice.

PFAW

Do Mitch McConnell and Chuck Grassley Agree With Trump That No Mexican Americans Should Serve On The Supreme Court?

This piece originally appeared in the Huffington Post.

Senate Majority Leader Mitch McConnell made clear this week not only that he wants Donald Trump to be president, but that the main reason he wants Trump to be president is so that he will be the one picking Supreme Court justices.

The Republican leader told radio host Hugh Hewitt that “the Supreme Court is the biggest thing the next president will deal with.” He continued, “I made sure of that by making sure that this president doesn’t get to pick this nominee and get them confirmed on the way out the door. But that alone, that issue alone will define much of what America is like for the next generation.”

According to McConnell, “That issue alone is enough to convince me to support Donald Trump.”

Senate Judiciary Committee Chairman Chuck Grassley also recently expressed his support for Trump selecting a Supreme Court justice to fill the vacancy left by the death of Justice Antonin Scalia. He told the Des Moines Register, “Based upon the type of people he’d be looking for, I think I would expect the right type of people to be nominated by him to the Supreme Court.”

Yesterday, Trump made clear that he applies a racial test when assessing the impartiality of judges, telling The Wall Street Journal that Judge Gonzalo Curiel should not preside over a fraud case involving his Trump University scam real estate seminars case because the federal judge has “an absolute conflict.”

According to Trump, Curiel’s “Mexican heritage” is “an inherent conflict of interest” because “I’m building a wall.” Curiel, whose parents are from Mexico, was born in Indiana.

Trump’s pronouncement raises a serious question for the Republicans who are engaging in an unprecedented effort to stop President Obama’s Supreme Court nominee, Merrick Garland, from so much as getting a Senate hearing, with the apparent goal to keep the seat open for a President Trump to fill.

Trump claims that a judge’s heritage is a conflict of interest because it means that he will be biased against Trump.

During every president’s term, numerous cases involving their policies or interpretations of the law are argued before the Supreme Court. If Trump believes a district court judge’s heritage creates an unfair bias against him, then one can assume that he thinks this same bias would exist in a judge on the highest court.

Approximately 10 percent of our country’s population is of Mexican heritage, and Donald Trump’s racial test would exclude every single one of them from the judiciary. Perhaps this explains why the list of potential Supreme Court nominees that Trump released last month was 100% white.

McConnell, Grassley and other Republicans obstructing President Obama’s Supreme Court nominee as they hope for a Republican victory in November now need to answer whether or not they too would apply Donald Trump’s racial test to the court.

PFAW

Supreme Court’s Recent Non-Decisions Highlight Importance of the Court in June and Beyond

This piece originally appeared in the Huffington Post.

Perhaps the most important thing about the Supreme Court this May was what it didn’t decide. As Justice Ginsburg candidly admitted to a group of lawyers, having only eight justices hamstrings the Court by making it more difficult to decide closely-divided cases. Far from suggesting that the Court’s importance has diminished, however, the Court’s non-decisions in May show just how important the Court continues to be, particularly in this fall’s elections.

With only eight justices, the Court issued two non-decision decisions in May that effectively punted important controversies for a future, fully-staffed Court to decide, but leaving significant confusion and uncertainty in the meantime. In the Zubik case, rather than splitting 4-4, the Court issued a brief unsigned opinion and vacated conflicting rulings in the lower courts on whether the Religious Freedom Restoration Act (RFRA) allows religious nonprofit colleges and other employers to effectively take away Affordable Care Act-required contraceptive coverage from their female employees. The Court directed that the lower courts should give the government and the objecting employers another opportunity to try to resolve the issue, and then decide the cases again if necessary, with Supreme Court review after that if needed. While resolving such controversies voluntarily is a desirable goal, it is clear from the prolonged litigation that at least some religious employers will not agree to any resolution under which its employees will get contraceptive insurance coverage from its insurer. The result is uncertainty for millions of women about their contraceptive coverage, as well as for religious employers about their claims.

The same day that the Court effectively punted in Zubik, it also issued a non-decision decision in the Spokeo case. In that case, the Court was to decide whether Congress may give individuals the right to sue for damages in federal court, so that they have “standing” to sue, when a federal law has been violated even in the absence of other actual injury.  This is an important issue since it affects the ability of Congress and individuals to hold companies accountable when they violate federal law.  In a 6-2 decision, the Court did not resolve the question of whether the individual in Spokeoactually had standing, but instead suggested that the lower court’s analysis was “incomplete,” and sent the case back to that court to reconsider the issue, without taking any position on the key issue presented by the case. This important question will need to be revisited by the Court again, after it again has nine justices.

During May, the Court accepted only three new cases for review starting in October, making a total of eight since Justice Scalia’s death. Legal commentators have suggested that the decisions not to take up more significant cases for  review is another result of an eight-justice court, with the remaining justices concerned about their ability to resolve controversial cases — again creating uncertainty about people’s rights.

Finally, non-decisions in three major pending cases in May, concerning affirmative action, reproductive rights, and immigration, will almost certainly lead to some kind of decisions in these cases in June, as the Court completes its work this term, with significant consequences for millions of Americans. Some decision on the merits is most likely in the Fisher case concerning affirmative action in college admissions, since Justice Kagan’s recusal from the case leaves the Court with seven members. The precise result will likely depend on swing Justice Anthony Kennedy, and may affect millions of minority students across America.

4-4 ties are quite possible in some of the remaining cases, including Whole Women’s Health, which concerns the constitutionality of extreme and unnecessary restrictions on abortion clinics in Texas. Advocates strongly believe the Court should resolve this case in favor of reproductive rights, which would protect the rights of millions, but the Court is clearly divided. Although not setting any national precedent, a simple tie vote in this case would leave the lower court opinions standing, which could effectively deprive all but the richest women in Texas of the ability to choose abortion. The Court will clearly be taking significant action soon.

In the meantime, Senate Republican leaders have refused to budge on their unprecedented blockade of the President’s nomination of Judge Merrick Garland to fill the vacant seat on the court, refusing even to grant him a hearing. It is becoming increasingly clear that they are trying to hold open that vacancy to be filled by, they hope, a President Trump. Trump’s list of potential nominees (also released in May) includes people who have called Roe v. Wade the “worst abomination in the history of constitutional law” and two others who voted to make their appellate court the only one in the country that sided with religious nonprofits’ efforts to deprive female employees of birth control.

To Senate Republican leaders and their right-wing allies, the stakes are clear. They will do everything they can to ensure that the current Court vacancy, and the additional vacancies very likely to arise in the next president’s term, are filled by far-right justices who will vote to overturn Roe v. Wade, limit contraceptive coverage, and set the clock back on civil rights and liberties for America. That is why continuing efforts to push Senate Republican leaders to take action on President Obama’s nomination is so important, and why the Supreme Court is such a critical issue in this fall’s elections.

PFAW

David Barton: Voting Biblically = Voting For Donald Trump To Name Supreme Court Justices

David Barton, the oft-discredited Religious Right “historian,” Republican political operative and head of a failed Ted Cruz-supporting Super PAC, appeared on the American Family Association’s “Today’s Issues” this morning.

Barton’s message mirrored that of other Religious Right figures, like televangelist James Robison and dominionist Lance Wallnau, who are insisting that evangelicals go to the polls and vote for Trump no matter how flawed a person and candidate he might be. A few weeks, ago Barton told Christians that their job was to get more engaged in electing God-fearing candidates to office by “teaching ourselves and others to think and act biblically.” Today he made it clear that means voting for Donald Trump.

Barton, who claims to find biblical justification for his opposition to minimum wage laws, progressive taxes, capital gains taxes, estate taxes and unions, not surprisingly has a Bible verse that he says mandates a vote for Trump:

For me, the number-one thing for me in every federal election is Isaiah 1:26, the righteousness of the land is determined by the judges in that land. And since we already have Justice Scalia down, and we have three more that are of age, of concern, you’re looking at potentially four judges, and do I want Hillary appointing my judges? Absolutely, unequivocally not. There is not a snowball’s chance I get a good judge out of that. That is just not gonna happen.

With Trump, we got a list of 11 folks, 11 of whom are better than anything Hillary will ever propose, 10 of whom are absolutely rock stars, from our standpoint. So when I look at Isaiah 1:26, this is an easy thing. It’s still difficult for me in so many other areas, because I want to join my vote to someone who does recognize that he needs God, that he has sinned at least once in his life, and of course that’s the thing Trump said — ‘I don’t know of any reason I need to ask God for forgiveness. I’ve never asked him for forgiveness.’ That’s a difficulty, but at the same time, that does not mean that we won’t get the right kind of judges, and that in my estimation is the key thing for any federal election.

Barton warned Christians that they could find faults in and reasons not to vote for any person, even biblical figures like Lot and Noah who were used by God in spite of their flaws. And he insisted that judges are “the number-one biblical issue.”

The first question, there is not an option sitting this out. That is not optional in any way, shape, fashion or form. Second thing is when you vote, you have to vote biblically, and the number-one biblical issue is judges. And on those two things alone you got all the information you need to be able to vote.   

Later in the discussion, Barton insisted that we are not to hold our civil leaders to the same standards as our religious leaders and that the Bible actually lays out the different qualifications for each. Barton cited Exodus 18:21 as God's standard that voters are to use for choosing political leaders:

But select capable men from all the people—men who fear God, trustworthy men who hate dishonest gain—and appoint them as officials over thousands, hundreds, fifties and tens.

Trump obviously does not meet these qualifications in any way, but Barton is going to vote for him anyway – and tell other Christians it is their duty to do the same.  

Harming Justice: Effects of an Eight-Justice Supreme Court

To: Interested Parties
From: People For the American Way Foundation, Constitutional Accountability Center
Date: June 2, 2016
Re: Harming Justice: Effects of an Eight-Justice Supreme Court

The Supreme Court is about to embark on the most consequential portion of its Term: handing down decisions on some of the biggest questions facing the country today, questions ranging from immigration to abortion to affirmative action. It will be tackling those questions without a full complement of justices.  Justice Antonin Scalia died in February, leaving only eight members on the Supreme Court. Since Justice Scalia’s death, President Obama followed his constitutional duty and duly nominated the highly qualified and impeccably credentialed Judge Merrick Garland to fill the vacancy on the Court. However, conservative Senators have refused to do the jobs the people of their state sent them to Washington to do. The previous four Justices named to the Court waited an average of 74 days from nomination to confirmation; Judge Garland passed that mark on May 28 and has yet to be even given a hearing by the Chairman of the Judiciary Committee Chuck Grassley.

Having only eight Justices on the Supreme Court for a prolonged period of time diminishes the Court, diminishes the country, and diminishes the rule of law. With only eight justices, all too often the Supreme Court cannot do the job the Framers of the Constitution assigned to it.

The diminishing effects of an eight-Justice Court include:

  • A 4-4 divided opinion means that major national questions go unresolved, as an equally divided Court cannot set a binding, uniform, nationwide rule of law. Different federal legal rules can apply to different people and businesses right across state lines. The Court has already handed down a number of 4-4 divided opinions; as of June 1, 2016, there are still 25 cases awaiting decision by the Court.
    • For instance, the Supreme Court has already divided 4-4 in Hawkins v. Community Bank of Raymore. Now one set of rules about whether spouses are required to guarantee loans applies in some jurisdictions, and another set in others.
    • The Justices themselves have repeatedly made clear that providing a uniform rule of law is one of the most important functions of the Supreme Court. From Chief Justice Roberts to Justice Ruth Bader Ginsburg, the members of the Court have consistently affirmed this principle.
    • Some of the biggest, most important questions are frequently the most divisive and have the greatest potential to divide the Justices 4-4, especially at a time when the number of 5-4 splits is at an historic high.
  • In order to avoid a 4-4 split, the Supreme Court has already had to make unusual moves, punting on important legal questions because there is not a fully-staffed bench that can resolve these questions. Thus, even when the Court doesn’t split 4-4, it may still be unable to truly resolve the important questions before it, thus leaving legal uncertainty in place.
    • Rather than issue an opinion on the merits, the Supreme Court issued an unsigned order in Zubik v. Burwell, a case involving the accommodation granted to religious nonprofits that object to the ACA’s contraceptive mandate. The order vacated the decisions of the lower courts and remanded the issue  back to the lower courts to try to achieve a compromise,  thus leaving the central question unresolved, thousands of women around the country in limbo, and a strong possibility that the Court will have to revisit the question again once it is fully staffed. Given the time it takes for issues to work their way through the federal courts, it could be years before the issue is resolved.
  • The Supreme Court may also be less inclined to tackle tough questions in the first place if its members think they cannot avoid dividing 4-4 on a question. The Court already has a small docket, only hearing approximately 70-80 cases a Term; the pace of grants of review in cases the Court has decided to hear for next Term is well below the average for this point in the year.

The effects of an eight-Justice Court ripple far outside of Washington, DC. Millions of American lives are impacted by the decisions the Court makes – or doesn’t make. The sooner Senators set aside partisanship in favor of doing their jobs, the better off the Court and the country will be. For more information on the effects of an eight-member Court, please see the report Material Harm to Our Justice System: The Consequences of an Eight-Member Supreme Court.

Resources

Material Harm to Our Justice System: The Consequences of an Eight-Member Supreme Court

Everything You Need to Know About an Eight Justice Supreme Court

The Originalist Case for the Senate to Do Its Job

The Supreme Court’s Role in Our Constitutional Scheme: Why Eight is Not Enough

Justice Waits for a Nine Member Supreme Court

Ruth Bader Ginsburg: 8 Is Not a Good Number

Supreme Court Punts in Zubik Case – and Shows Again the Crucial Importance of a Fully-Staffed Supreme Court

###

RNC Faith Liaison: Supreme Court Will Bring Religious Right Voters To Trump

The Republican Party’s faith outreach director, former South Carolina GOP chair Chad Connelly, says conservative Christians will vote for Donald Trump based on the future of the Supreme Court.

The biggest thing on evangelicals’ minds, I think, is the fact that we’re gonna be looking at a Supreme Court that could be vastly different going forward. And electing somebody like Hillary Clinton, who is obviously biased against the things that most evangelicals, Christians believe in, would be disastrous for religious liberty, for property rights, gun rights, religious freedom and stuff like that. I think it’s gonna settle out just fine and our folks will go our way.

Connelly told CBN’s Heather Sells that his friends and fellow church members had been split among Republican candidates, but that voters have now “given us two choices.” Trump’s plans to meet with Religious Right leaders and activists next month are, said Connelly, a sign that Trump knows you “don’t leave anybody out, especially not the base.”

Connelly travels the country encouraging pastors to register their congregants to vote and convince them to cast ballots based on a “biblical worldview.” Like speakers at virtually every Religious Right gathering, he said that what’s happened to the country “is literally our fault” because pastors haven’t preached aggressively enough. “Voting is not political,” he said, “it’s spiritual. It’s our witness and testimony to the community of what we believe in.”

He said he doesn’t think conservative pastors going to sit on the sidelines any more. He tells pastors, “Get your people registered and talk to them about the issues of the day and then make sure they go vote those issues in the voting booth.”

I spoke at a church…not long ago where the pastor kind of apologized to his congregation before he introduced me. He said he’d been preaching for 39 years and had never tried to connect the dots of the things going on with biblical worldview, and he said, “that’s gonna change.”

Asked whether Trump should apologize to Latino Christians who have been offended by his rhetoric, Connelly said, “I’ll leave his campaign decisions to him” and pivoted back to the Supreme Court.

I’ve been with Latino and African American and Anglo pastors all over the nation and they see this Supreme Court deal as a very big thing. You know the next president’s gonna probably appoint two, maybe three, and potentially four Supreme Court justices. That’s a 50-year decision for Christians out there.

To those conservative Christians who aren’t happy with their choices, Connelly says, “no man’s perfect.” But he says that people who are upset about Planned Parenthood and “judges rewriting God’s definition of marriage” should realize that “the Republican Party is the natural home for people of faith.”

Says Connelly, “I mean, let’s face it...it may be 100 years before the other party swings back and pays any attention to Christian values and biblical values like you and I care about.”

Southern Baptist Convention President Ronnie Floyd also cited the Supreme Court in defending his decision to meet with Trump in June:

This election is about who will appoint as many as four Supreme Court justices. This election is about the dignity of human life from the womb to the tomb. This election is about the most significant religious freedom concerns in American history. I'm not about to sit at home on Election Day because I'm accountable to God and, I believe, I am accountable to my fellow Americans to vote. This is why I am meeting with Donald Trump, and why I would be willing to also meet with Hillary Clinton.

The Garland Effect Continues To Haunt Senate Republicans

North Carolina Senator Richard Burr is the latest Republican Senator to face a spate of terrible poll numbers, in part based on the unprecedented obstruction of Merrick Garland’s Supreme Court nomination.

A new Public Policy Polling survey in North Carolina finds that “Burr's lead is just 3 points at 39% to 36% for [Democratic candidate] Deborah Ross, and 8% for Libertarian Sean Haugh.” Furthermore, “Burr continues to be pretty unpopular with only 28% of voters approving of the job he's doing to 40% who disapprove.”

Senate Majority Leader Mitch McConnell and Judiciary Committee Chairman Chuck Grassley’s decision not to do their jobs and hold hearing for Merrick Garland are acting like an anchor around Burr’s poll numbers in the state.

PPP notes:

One issue that's shaping up to cause trouble for Burr right now is that of the vacant Supreme Court seat. 58% of voters in the state think Merrick Garland deserves confirmation hearings for his nomination to the Court, compared to only 24% of voters who are opposed to that. By a 17 point margin voters say they're less likely to vote for a Senator who is opposed to hearings- only 25% say that stance would make them more inclined to vote for their Senator, compared to 42% who say that would make them less likely to.

Burr is just the latest Republican Senate candidate to face electoral peril stemming from his caucus’s acquiescence to their leadership’s obstructionist strategy.

At the beginning of May, we pointed to the myriad of sinking poll numbers and electoral prospects of a number of Republican senators. Now Richard Burr can add his name to a list that includes Rob Portman (OH), Kelly Ayotte (NH), Ron Johnson (WI), Pat Toomey (PA), and even John McCain (AZ) whose reelection chances have been harmed by the GOP’s Supreme Court obstruction.

Grassley has been hurt by the obstruction campaign as well ,with his approval rating in his home state falling to just 47 percent.

For Mitch McConnell, this strategy was premised on the theory that the punishment from the conservative base of the Republican Party if Garland were confirmed to the court would be greater than the penalty from the electorate at large for not taking any action on President Obama’s appointment.

This latest polling suggests that if Republicans continue their intransigence, it will cost them their Senate Majority, and McConnell his present leadership role.

At the beginning of the month we stated, “If McConnell doesn’t reverse course soon and begin confirmation hearings for Merrick Garland soon, the question will be how many Senate seats he is willing to sacrifice to placate his party’s far-right flank.”

Now that number is six and counting.

Liberty Counsel: Send Money To Help Roy Moore Resist Supreme Court Marriage Tyranny

Liberty Counsel, a Religious Right legal group that is actively promoting efforts by right-wing judges, lawmakers and activists to nullify U.S. Supreme Court rulings on abortion and marriage equality, is raising money for its ongoing support of suspended Alabama Chief Justice Roy Moore. As Miranda reported yesterday, Moore’s backers are holding a rally on Saturday to support his defiance of the Supreme Court’s marriage equality ruling. 

In a direct mail letter, Liberty Counsel’s Mat Staver warns that Moore and other Christian leaders “are facing intense backlash for upholding God’s unwavering TRUTH.”

“In Alabama and across America, state judiciaries and legislatures are standing up against the federal judiciary, resisting tyrannical rule and upholding the moral law of God,” writes Staver, who asks for money to “defend Christian leaders who are being targeted by deep-pocketed, radical activists.”

Staver says “you and I must continue to pray and take an active stand against the forces destroying the foundations of our nation.” More from his letter:

I support Chief Justice Moore’s action that sends a “shot across the bow” regarding the Supreme Court’s egregious 5-4 marriage opinion on same-sex “marriage.” The United States Constitution does not prohibit states from affirming the natural crated order of one man and one woman joined together in marriage.

Like Daniel in the lion’s den, Chief Justice Moore is being persecuted for his faith by liberal legal professionals and radical LGGBT activists. But like Daniel, Chief Justice Moore will not bend, having faith that God will protect those who seek and follow His Word.

Staver asks recipients of the letter to sign and return (along with some money) a “Vote of Confidence” letter to Moore, which says in part:

Thank you for not bowing your knee to the U.S. Supreme Court’s egregious 5-4 marriage opinion on same-sex “marriage.” No civil authority, including the U.S. Supreme Court, has the authority to define marriage as anything but the union of one man and one woman!

I pray that God continues to guide and protect you, and to give you and other Christian leaders the continuing strength to turn the tide of immorality sweeping our nation.

Staver also includes a card reminding people to pray for Moore that he suggests placing in your Bible or on your refrigerator or bathroom mirror.

 

New Report Details Consequences of an Eight-Member Supreme Court

Today, People For the American Way Foundation (PFAWF) and the Constitutional Accountability Center (CAC) released the new report, “Material Harm to Our System of Justice: The Consequences of an Eight-Member Supreme Court.”

The report details:

  • Statements by current and former Supreme Court justices – including Scalia, Rehnquist, and Roberts – on the importance of a nine-justice Supreme Court.
  • Ramifications we’ve already seen from an eight-member Court. This includes the effects of 4-4 decisions like Hawkins v. Community Bank of Raymore and Friedrichs v. California Teachers Association, and the Supreme Court punting in Zubik v. Burwell.
  • The growing ideological divisions on the Court, making split decisions more likely.
  • Why an eight-member Court could endanger voting rights leading up to the 2016 elections.
  • How individuals and companies are impacted by an eight-member Court on a wide variety of issues including healthcare, banking, and more.

Read the report here.

Constitutional Accountability Center President Elizabeth Wydra stated:

“The virus of dysfunction afflicting the Senate is showing symptoms at the Court, and the prospect of this blockade extending from the current Term into the next is outrageous. Former Justices have spoken on the need for a fully staffed Court, including former Chief Justice Rehnquist and even Justice Scalia in years past, as well as former Justices Stevens and O'Connor in recent weeks. As today’s report explains, an understaffed Court is hamstrung by its inability to fully perform its essential role in resolving important constitutional and legal questions for the American people.”

People For the American Way Foundation Senior Fellow Elliot Mincberg added:

“The current obstruction that President Obama’s Supreme Court nominee Judge Garland is facing is unprecedented, and there are real consequences for the American people because of this obstruction. Current and former Supreme Court justices – including Scalia, Roberts, and Rehnquist – have detailed the reasons why the Court needs nine members to properly execute its duties. From 4-4 splits that fail to set national precedent to potentially blocking the Court’s ability to protect voting rights, an eight-member Supreme Court simply cannot function as it should.”

To schedule an interview with PFAW Foundation and/or CAC experts on this report, please email lepstein@pfaw.org or Pennington@theusconstitution.org.

###

Material Harm to Our System of Justice: The Consequences of an Eight-Member Supreme Court

This Supreme Court Term marks the first time in decades that the Court will be without a full complement of nine Justices for almost half the Term. An increasing number of important legal controversies have closely divided the Supreme Court, but with only eight Justices, it's possible for the Court to deadlock -- which has dangerous consequences for the nationwide rule of law.

Christian-Nation Advocates Rally To Support Roy Moore, Stop Gay Marriage From Destroying America

Supporters of Chief Justice Roy Moore of Alabama are planning to hold a rally on Saturday in defense of the judge, who has yet again been suspended by the state’s judicial inquiry committee, this time for attempting to defy federal court rulings on marriage equality.

A list of speakers hasn’t been released yet, but it will likely include John Eidsmoe, the Christian Reconstructionist scholar who works at the foundation that Moore founded, and Moore’s friend and former spokesman Dean Young, both of whom spoke last Thursday at a press conference where they announced plans for the event.

Speaking to reporters at the press conference, Young singled out Ambrosia Starling, a drag queen who’s a member of the coalition that filed a complaint against Moore and who has become an accidental celebrity since Moore claimed that she was leading the effort against him.

Young said that it’s a “travesty” that a “transvestite” was able to file a complaint against Moore when “these are the kind of people who want to come into the bathroom of your children, boy or girl.”

He then warned that marriage equality would destroy the country. “At the end of the day,” he said, “our civilization was founded on the Judeo-Christian values, and when you start saying that a man and a man can get married, you’re destroying the very foundation of this nation.”

Young compared “redefining marriage” to changing the measurements of a foot or an ounce.

“The entire foundations are destroyed when you start redefining words, and especially what marriage is, and that’s between a man and a woman,” he said.

Young praised Moore for being “the only one in this entire country that’s standing.”

“If they take Judge Moore down, they’re going to come after your pastors, they’re going to come after your businesses if you don’t make the kind of cake they want, they’re going to make you go out of business,” he warned. “If you don’t want to perform a wedding like that, you’re going to go out of business.”

He added that “this is either Valley Forge or the Alamo, I just don’t know which one.”

Young, who once said that if gay people “don't like the laws of Alabama…then maybe they need to go back to California or Vermont or wherever they came from," lost a Republican congressional primary in March.

Rusty Thomas, the radical anti-abortion activist who heads Operation Save America, has also announced that he’ll be speaking at the rally in support of Moore on Saturday. Thomas, who insists that terrorist attacks are God’s judgment for legal abortion, invoked both the Bible and a movie version of “Robin Hood” to declare that it is Moore who is following the law because the federal government is imposing “lawlessness.”

Thomas subscribes to a version of nullification that holds that “lesser magistrates” — state and local officials — must defy federal laws and court rulings that they believe violate divine law. The leading proponent of this theory is anti-abortion activist Matt Trewhella, one of the signers of a 1993 document supporting violence against abortion providers, who spoke alongside Thomas at a recent abortion “abolition” event in Arizona.

Thomas writes in a press release today that he hopes Moore’s example “will spread like wild fire to inspire governors, state legislators, sheriffs, and other lower magistrates to rise up with one voice to say no to the federal beast, place the chain back on our federal government, restore law and order, and reestablish the checks and balances necessary to secure a future and hope for our nation in Jesus' mighty name!”

The prophet Isaiah warned, "Woe to those who call evil good, and good evil; Who put darkness for light, and light for darkness; Who put bitter for sweet, and sweet for bitter (Isaiah 5:20). Our nation has long rejected Biblical truth and now we labor under a stupor of delusion. When good becomes evil, it should not be surprising that the good guys become the bad guys. The movie Robin Hood stated our current situation well, "In the days of lawlessness, those who keep the law become the outlaw."

Our federal government for decades has been codifying evil into law. In the name of new federal values, they are destroying Christian and family values. In the name of government, they betray their sacred trust as government. In the name of the Constitution, they violate the Constitution. Under the color of law, they impose lawlessness upon the citizens of America and upon the great state of Alabama.

Our federal government continues to make straight what God has called crooked, turn moral wrongs into civil rights, and demand that "We the People" tolerate the intolerable. In the midst of this tyranny and moral anarchy, God has raised up a champion, none other than Chief Justice Roy Moore.

As a Lesser Magistrate, Chief Justice Roy Moore, is standing in the gap between federal tyranny and the life, liberty, and property of the citizens of Alabama and our nation. It is my sincere prayer that his example will spread like wild fire to inspire governors, state legislators, sheriffs, and other lower magistrates to rise up with one voice to say no to the federal beast, place the chain back on our federal government, restore law and order, and reestablish the checks and balances necessary to secure a future and hope for our nation in Jesus' mighty name!

Update: Moore’s wife, Kayla Moore, who heads the foundation that he founded, is also scheduled to address the rally.

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

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

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

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

Key remarks from Senators, Representatives, and young leaders:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Open Letter to the Senate

Dear United States Senators,

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

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

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

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

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

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

Respectfully,

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

###

Share this page: Facebook Twitter Digg SU Digg Delicious