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?
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.
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.”
One theme of this year’s Republican National Convention is the Religious Right getting fully on board the Trump Train. Even before he vanquished Ted Cruz, his final primary opponent, Trump has been aggressively courting the Religious Right, and he has recently sought to shore up support from the movement leaders who backed Cruz and other candidates.
Yes, Trump is a habitual liar whose Bible-waving and political use of religious is transparently cynical, but that isn’t stopping Religious Right leaders from rallying around him. And why not? He allowed the Religious Right to write anti-gay discrimination into the GOP's platform. His promise to fill the Supreme Court with right-wing justices gives them hope that marriage equality in the U.S. will be short-lived. And he is even promising to overturn the federal law that forbids churches, like other tax-exempt nonprofits, from engaging in direct electoral politics, and to sign legislation defunding Planned Parenthood.
In Cleveland this week for the RNC, Religious Right political operative Ralph Reed spoke with Doug Wright, “Utah’s most listened to talk show host.” Polls show that many of Utah’s Mormon voters are resisting the call to unite behind Trump.
When asked why so many evangelicals are supporting Trump in spite of his “interesting” background, his use of “vulgarities,” and other things that might concern a conservative Christian, Reed said, “You’re not electing a pastor-in-chief, you’re electing a commander-in-chief.”
Reed reminded Wright that evangelicals backed Mitt Romney in the 2012 general election even though they had a different approach to faith, and even though Romney had previously held pro-choice and pro-gay views, something for which some conservatives have criticized Trump. “I thought we were members of a faith where we were supposed to welcome converts,” said Reed.
In fact, said Reed, he thinks Trump “has the potential to be the greatest advocate for our values, and do the most to advance that agenda, precisely because he doesn’t necessarily come from where we come from.” In other words, because people don’t view Trump as a Religious Right activist, they might be more receptive to his call for ending the ban on church politicking.
Here’s Reed’s basic case for Trump, starting with the fact that “he is a professing Christian.”
More importantly…he shares our values. He’s pro-life. He’s pro-traditional marriage, which is very important to us…He’s pro-religious freedom. He supported the Hobby Lobby Decision, supports Little Sisters of the Poor, has placed in the platform, at his insistence, at this convention, for the first time in the history of the Republican Party, a call for the repeal of the Johnson Amendment to the internal revenue code, which threatens churches that speak out politically with the loss of their tax-exempt status. That has been used to harass and persecute the Christian community for over half a century. Donald Trump will end it.
To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: July 19, 2016
Re: Senate Republicans, Exhausted From Not Doing Their Jobs, Take a 7-Week Vacation, the Longest in 60 Years
Last week, the GOP-controlled Senate explained why there supposedly wasn’t enough time before an extensive summer recess, the longest in 60 years, to confirm numerous long-standing consensus judicial nominees. In fact, they spent more time making excuses than it would have taken to actually confirm the nominees.
The exchange revealed new depths to which Senate Republicans will sink in order to avoid doing their jobs and voting on the president’s nominees to our lower federal courts, in addition to their unprecedented refusal to even consider the nomination of Merrick Garland to the Supreme Court.
On Wednesday, July 13, Democrats sought votes on many of the nominees waiting for Senate action. First, Sen. Chuck Schumer asked for votes on the 13 longest-stalled district court nominees, all of whom had been approved by the Judiciary Committee with unanimous or near-unanimous support, as well as seven nominees for the Court of International Trade and Federal Claims Court (six of whom had been approved by the Committee in 2014, then again in 2015). On behalf of the GOP leadership, North Carolina Sen. Thom Tillis blocked the vote because, among other things, the Senate had confirmed one judge the previous week and one judge the week before that.
Then Sen. Elizabeth Warren sought a vote just on the 13 district court nominees. Tillis again objected, complaining that instead of debating drug abuse:
What we get are things that have nothing to do with doing our jobs. I'm doing my job today and objecting to these measures so that we can actually get back to pressing matters … [emphasis added]
In fact, vetting and confirming judges so that the United States judicial system can function and provide a forum to protect people’s rights is among the most important responsibilities the Constitution gives to the Senate, and to the Senate alone.
There was apparently no number low enough or waiting period long enough that Republicans would accept. Sen. Mazie Hirono sought a vote only on the eight longest-stalled district court nominees, who would fill vacancies in Tennessee, New Jersey, New York, California, Rhode Island, Pennsylvania, and Hawaii. All were approved by the Judiciary Committee without opposition. Half had been approved in the fall of 2015, three back in January, and one had been waiting for “only” three months. Yet again, Tillis objected, urging the Senate not to waste time on this issue but to address other issues.
Actually, the waste of time came from Sen. Tillis, who spent far more time blocking votes on qualified consensus nominees than it would have taken to actually confirm them. Mitch McConnell’s Senate is a far different place than it was on September 26, 2008, an election year, when the Democratic-controlled Senate confirmed ten of President Bush’s consensus district court nominees in less than a minute, nominees who had been waiting for a vote for only three days.
As Tillis carried out McConnell’s obstruction directives last week, Republican senators who claim to support the nominees from their home states were nowhere to be found. Tennessee’s Edward Stanton III has languished on the Senate floor since October of last year, but Sens. Lamar Alexander and Bob Corker were nowhere to be found to offer them support when Tillis blocked a vote on him three separate times. Similarly, Pennsylvania’s Pat Toomey allowed two nominees he had recommended to the White House to be denied votes three times that day, even though they were approved by the Judiciary Committee six months ago.
Rather than being an aberration, Republican efforts to block confirmation votes for President Obama’s judicial nominees have been the norm. While their refusal to even hold a hearing for Supreme Court nominee Merrick Garland has grabbed the headlines, 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 judicial nominations has fallen far short of what precedent would dictate.
Failing 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. In 2007, the first year as the majority, the Democratic Senate confirmed 40 of President Bush’s circuit and district court nominees (with a total of 68 by the end of 2008). In stark contrast, the McConnell Senate has confirmed only 20 circuit and district court judges during this Congress (along with two Court of International Trade nominees). Just as the number of confirmations last year (11) was the lowest since 1960 (also 11), the total for this two-year Congress appears on track to be the lowest since the Eisenhower era, when there were hundreds fewer judgeships than today.
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 81 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 29 as of July 15 of this year*. 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 American people expect their elected officials to try to solve problems. At the very least, the American people demand their senators to at least show up to work on a regular basis. But Senate Republicans have done neither. Instead, they are setting dubious records for the fewest working days and the fewest judges confirmed. Republicans have denigrated this institution with their obstruction. I hope they will consider the consequences of their inaction over this seven-week vacation.
Courts are the infrastructure of justice, just as important to our constitutional rights as roads and bridges are to transportation. Either in spite of this or because of this, Senate Republicans have abused their position in the majority to stymie President Obama’s efforts to put qualified people on our nation’s federal courts. In so doing, they are weakening the entire third branch of the United States government.
* - 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.
Thursday, July 14, marked the 120th day since Chief Judge Merrick Garland was nominated to the Supreme Court. July 14 was also the Senate Judiciary Committee’s final markup before the August recess. In order to highlight Republican senators’ irresponsible obstruction on judicial vacancies, People For the American Way staff members attended and stood in solidarity with activists from Planned Parenthood Federation of America, the Leadership Conference on Civil and Human Rights, and Americans United for Change at the markup.
We wore buttons that read “#DoYourJob” and some advocates silently held signs when the meeting concluded. Our presence put additional pressure on Chairman Sen. Chuck Grassley and his Republican colleagues on the Senate Judiciary Committee to give Garland fair consideration and to fill the growing number of other judicial vacancies.
On the agenda for the markup meeting were four judicial nominees: Jennifer Puhl, Don Coggins, David Nye, and Kathleen Sweet. Puhl, Coggins, and Nye were unanimously approved by the committee on a voice vote, but they join a long list of nearly 20 other nominees who are still waiting for consideration from the full Senate. They are unlikely to receive a vote before the fall.
During the committee proceedings, ranking member Senator Patrick Leahy (D-VT) gave voice to our frustrations, and the frustrations of so many Americans, by directly addressing the rising number of judicial vacancies across the United States and the failure of Republican senators to fulfill their job requirements by adequately processing judicial nominees:
“The sharply rising number of judicial vacancies across the country is the direct consequence of Republican leadership neglecting the Senate’s duty to ensure the federal judiciary can function. When Senate Republicans took over the majority last year, there were 43 judicial vacancies, 12 of which were emergency vacancies. Because of the Republicans’ refusal to do their jobs, vacancies have nearly doubled to 83, and emergency vacancies have nearly tripled to 30.”
Astoundingly, at the last markup session before the congressional recess, and 120 days since Merrick Garland’s nomination, Sen. Chuck Grassley did not even speak about the most pressing judicial vacancy: the open ninth seat on the Supreme Court. Sen. Leahy, however, did, saying:
"Republicans are failing our justice system and the American people by continuing their unprecedented blockade of Chief Justice Merrick Garland’s nomination for the Supreme Court.”
We agree with Sen. Leahy and so many Americans. The American people deserve a fully-functioning judicial system, including a Supreme Court with nine justices. Republican Senators’ refusal to adequately process judicial nominees is disgraceful. Tell Sen. Grassley to stop playing politics with our justice system, and tell GOP senators to do their jobs.
With the Senate Judiciary Committee holding its last business meeting until the Senate comes back to work in September with no action on President Obama’s Supreme Court nominee, faith leaders held a press call today announcing release of a statement calling on senators to end their obstruction. The statement, which can be read below, is signed by over 40 national and state religious organizations representing a diverse group of faith traditions and beliefs and is being delivered today to Senate leadership.
Key statements from today’s press call announcing the letter:
Harsh Voruganti, Esq., Executive Council Member, Hindu American Foundation:
“As faith leaders, we expect better from our Senators. We expect our Senators to fulfill their constitutional obligation to give fair consideration to the President’s nominee. This means that the nominee should receive a prompt hearing, and a timely up or down vote, regardless of the party of the appointing President, or who controls the Senate.”
Nancy K. Kaufman, CEO, National Council of Jewish Women:
“Every aspect of our lives and the character of our democracy is impacted by judicial vacancies, none more so than the current vacancy on the Supreme Court.
“For those of us who increasingly depend on the court to protect our religious freedom and our rights as women, the ongoing vacancy is disastrous. That’s why people of faith, including NCJW, are mobilizing like never before to hold senators accountable to do their job.”
Minister Leslie Watson Malachi, Director of African American Religious Affairs, People For the American Way:
“Courts matter. As an African American woman, someone who has been involved in civil rights and civic engagement for over 30 years, the communities I am a part of have relied on the Supreme Court time and time again to protect our voting rights, our reproductive rights, and our fundamental rights to life, liberty, and the pursuit of happiness.
“I believe that the 2300 members of the African American Ministers Leadership Council, and all voters in this country, sent folks to the Senate to do what’s right, and not necessarily what’s easy. Yet this morning, during the last Senate Judiciary Committee executive committee meeting until September, the Senate again failed to do its job, which is to do what’s right – give fair consideration to Judge Garland – and stop doing what’s easy – being divisive and nonproductive on this critical issue.”
Rabbi Michael Namath, Program Director, Religious Action Center of Reform Judaism:
“Pursuing justice means demanding a system of justice that provides equal protection and equal access for all. In setting up the Jewish people’s first judicial system, Jethro taught, ‘Judge the people at all seasons’ (Exodus 18:22). This text reminds us today that judgement must happen in all seasons, in all presidencies and in all congresses in order for our democracy to function and protect our constitutional rights.
Rev. Aundreia Alexander, Esq., Associate General Secretary, National Council of Churches:
“The faith community holds views that are as far right as one can go, and equally extreme on the proverbial political left, but at our core are common values that affirm love, grace, mercy and the intrinsic value of all life. One of our roles in society is to serve as a moral compass within the public square, and to call our leaders to account when they act in ways that are unfair or are self-serving. Christian leaders have a responsibility to care for the holistic needs of the community as well as to speak truth to power and hold the 3 branches of government accountable.
“The Supreme Court is the ultimate arbiter and interpreter of laws that are of vital importance to people of faith including immigration, voting, health care, etc. The plight of individual lives and society at large is too important for these issues to not be given the comprehensive examination and review that a fully functioning court provides. Therefore, as faith leaders in the United States, we declare that it is a moral imperative that the Supreme Court vacancy be filled.”
Interfaith Moral Message on US Supreme Court Vacancy
On behalf of our groups, representing a diverse group of faith traditions and beliefs, we urge the Senate to fulfill its constitutional responsibility and hold a swift hearing and vote on US Supreme Court nominee Judge Merrick Garland.
The constitution clearly assigns the Senate a crucial role in the judicial nominations process when it states that the President, “By and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court.” While many of our groups do not take positions on individual nominees, we stand united in our belief that the Senate’s duties regarding Supreme Court vacancies ought to be carried out in a timely fashion. The Senate’s ongoing delay in fulfilling this responsibility threatens the ability of our government to operate at full capacity and undermines our nation’s commitment to the pursuit of justice and democracy.
The 2015-2016 US Supreme Court term demonstrated the urgency of ensuring a full bench when a new term begins in October. The Court’s decisions have a major impact on core issues of American life, from healthcare to education to immigration and more. Only with a nine member Court can the split decisions that we saw this year be avoided and clear direction be provided.
We urge you to uphold your constitutional responsibility and expeditiously act on Judge Garland’s nomination by supporting confirmation hearings and a Senate floor vote.
African American Ministers Leadership Council
Bend the Arc Jewish Action
Central Conference of American Rabbis
Franciscan Action Network
Franciscan Sisters of the Atonement
Hindu American Foundation
Individual Citizen of Gospel Peace
Jewish Council for Public Affairs
Leadership Conference of Women Religious
National Council of Churches
National Council of Jewish Women
The Reconstructionist Rabbinical Association
Reconstructionist Rabbinical College/Jewish Reconstructionist Communities
The Shamayim V'Aretz Institute
Women of Reform Judaism
Union for Reform Judaism
Unitarian Universalist Association
United Church of Christ, Justice and Witness Ministries
State/ Local Organizations
Courts Matter (Illinois)
Franciscans Sisters of Mary (Maine)
Hadassah, New Orleans (Louisiana)
The Jewish Alliance for Law and Social Action (Massachusetts)
Jewish Community Relations Council of New Haven (Connecticut)
Jewish Federation of Greater Santa Barbara (California)
JPIC Committee of the Sisters of St. Francis of Philadelphia (Pennsylvania)
The Imani Group, Inc. (South Carolina)
National Council of Jewish Women, Arizona Section (Arizona)
National Council of Jewish Women, Bergen County Section (New Jersey)
National Council of Jewish Women, California (California)
National Council of Jewish Women, Florida (Florida)
National Council of Jewish Women, Greater New Orleans Section (Louisiana)
National Council of Jewish Women Illinois State Policy Advocacy Network (Illinois)
National Council of Jewish Women, Long Beach (California)
National Council of Jewish Women, Los Angeles (California)
National Council of Jewish Women, Minnesota (Minnesota)
National Council of Jewish Women, New York (New York)
National Council of Jewish Women, Seattle Section (Washington)
National Council of Jewish Women, St. Louis (Missouri)
Ohio Religious Coalition for Reproductive Choice (Ohio)
Temple Sinai (Louisiana)
Total Community Action, Inc. (Louisiana)
The Constitution sets up an independent judiciary as the third branch of government, intended to protect people’s rights and to serve as a check on the power of the other two branches. Our nation’s charter tasks the president and the Senate with the job of selecting and vetting the people who would serve on those courts. President Obama has been doing his duty by nominating qualified women and men to serve as judges at all levels of the judiciary, including the Supreme Court.
But the GOP-controlled Senate is not living up to its constitutional responsibilities. While this has always been harmful to America, it is even more so with Donald Trump the presumed presidential nominee of his party.
Mitch McConnell and his party have slow-walked or outright blocked so many nominees that the number of circuit and district court vacancies has risen from 40 when they took over the Senate to 80 today. (There are also several vacancies for the Court of International Trade and the U.S. Court of Federal Claims.) In that same time, the number of vacancies formally designated as judicial emergencies has skyrocketed from 12 to 29. The Senate has not been allowed to vote on nominees who were thoroughly vetted and approved months ago by the Judiciary Committee with strong bipartisan support.
Yesterday, Sen. Tammy Baldwin of Wisconsin went to the floor to draw attention to the problem. She noted that while the Senate GOP’s blockade of Supreme Court nominee Merrick Garland has been in the headlines, that has not been the case with the obstruction of lower court nominees.
She focused particularly on Seventh Circuit nominee Donald Schott, who not only has Democrat Baldwin’s support, but also that of his other home-state senator, Republican Ron Johnson. Schott would fill the nation’s longest circuit court vacancy, which has been open for well over six years. Since the Supreme Court takes so few cases, the Seventh Circuit is usually the last word on the meaning of the Constitution and federal laws for millions of people in Wisconsin, Illinois, and Indiana, and every day that goes by with that vacancy open hurts everyone in those states. Schott earned strong bipartisan support from the Judiciary Committee, which advanced his nomination to the full Senate four weeks ago. Baldwin noted that Schott also has the support of a bipartisan group of former Wisconsin Bar presidents. Saying that “the people of Wisconsin and our neighbors in Illinois and Indiana deserve a fully functioning appeals court,” Baldwin urged McConnell to finally allow votes on Schott and on all of the judicial nominees who have cleared the Judiciary Committee. Many of them have been waiting for more than half a year for a floor vote, with several having been approved by the Judiciary Committee last year.
But Republicans are fighting to keep vacancies open for as long as possible so that they will be filled by a President Donald Trump.
Donald Trump, who wants to make it easier for the government to punish media sources whose reporting he disagrees with.
Donald Trump, who has said that Latinos cannot serve effectively as unbiased judges.
Donald Trump, who would ban certain people from entering the country based on their religion.
Donald Trump, who has demeaned and humiliated women at every opportunity.
Donald Trump, who has used hate groups’ blatantly anti-Semitic imagery in his campaign.
Donald Trump, who has said he is considering firing all Muslim TSA agents.
With serious discussion among scholars, political figures, and Americans across the political spectrum on whether Trump’s extreme views amount to fascism, we need a strong, effective, and independent federal judiciary more than ever. Yet Senate Republicans are pulling out the stops to allow Donald Trump to move quickly to dramatically transform our judiciary from the Supreme Court on down.
The Senate GOP is abdicating their constitutional and moral responsibility to the American people and to our democracy.
Evangelical seminary president Richard Land told the American Family Association’s One News Now today that Donald Trump could help himself “enormously” with social conservatives “if he were to hold a press conference and say that if he is indeed elected president, that he will nominate Ted Cruz to replace Antonin Scalia on the Supreme Court.”
Land has previously promoted some pretty extreme ideas about the federal courts. Just after the November 2014 elections in which Republicans took control of the Senate, Land called on Republicans not to confirm a single federal judge for the final two years of Obama’s term.
Land, who was president of the Southern Baptist Convention’s Ethics & Religious Liberty Commission for 25 years, is serving on a religious advisory panel for Trump even though last October he said he was “dismayed” by Trump’s “mystifying and somewhat depressing” popularity among evangelicals. At the time, he called support for Trump “a failure on our part to adequately disciple our people.”
His earlier lack of enthusiasm for Trump was in spite of sharing some similar personal history. In 2012, Land announced his retirement from the Ethics & Religious Liberty Commission in the midst of a controversy over inflammatory comments he made saying that President Obama was using the Trayvon Martin killing “to try to gin up the black vote” for his re-election. Although Land eventually apologized, his initial response to criticism was defiant, saying that he had been “speaking the truth in love” and would not “bow to the false god of political correctness.”
With Election Day just four months away, Judiciary Committee Chairman Chuck Grassley finds himself in a statistical tie in the race to keep his Iowa Senate seat, leading his opponent, former Iowa Lt. Gov. Patty Judge, by only a single percentage point.
For 30 years, Grassley has never had an electoral challenger come within 30 percentage points of defeating him. This year is different because Iowa voters believe Grassley has changed.
A perusal of his Senate record clearly demonstrates that Grassley is no longer the senator who Iowa voters returned to Washington five times. While he is now leading the politically motivated effort to block the nomination of Judge Merrick Garland to the Supreme Court, for much of his career, Grassley used the confirmation processes as an opportunity to call for his colleagues to look to their bigger selves and the country.
His philosophy was clearly laid out after President George H.W. Bush appointed Clarence Thomas to the nation’s highest court in 1991. Grassley took to the Senate floor a little more than a week after the nomination, telling his colleagues:
While the Constitution gives the President the principle role in selecting judges for the Federal courts, including the Supreme Court, our role is to ensure that the candidates have the intellect, integrity, and temperament to serve in that high capacity particularly the high capacity of the Supreme Court. No, we are not here to be a rubber stamp for the President's nominations, but our inquiry should be focused on the nominee's objective qualifications.
As Thomas’ hearings began, Grassley even complained that the Senate’s process for examining a lifetime appointee had grown too burdensome:
In response to the Committee's request for certain documents, Judge Thomas has provided, I have been told, some 36,000 pages of documents, and I understand that it has been cataloged in some 10 boxes of documents. . . . This document request is just an example of how far the Senate has strayed in the nomination process.
He also questioned the length of the process:
When Justice White was nominated, just 29 years ago, he came to this Judiciary Committee and was asked only eight questions. What has changed to require all these long hearings over the last quarter century? Well, something has lengthened the process, and to some extent I feel it has been lengthened needlessly.
In 1991, when Grassley complained about the process being “lengthened needlessly,” it took the Senate 99 days to confirm Thomas. Garland was nominated 117 days ago.
As the Thomas nomination reached the Senate floor, Grassley attempted to persuade his colleagues that the process of confirming judges could advance a higher American ideal:
It has been asserted that this, too, was part of our democratic system. But I hope that there is a way to restore ourselves and the American people the ideals of representative democracy, ideals that brought down the Berlin Wall, that inspired the student revolt in Tiananmen Square, and that sustained Boris Yeltsin in his standoff with the coup plotters.
I believe we can do it, that we must do it, and I urge my colleagues to confirm Judge Thomas as one step in that direction.
Today, Grassley is engaging in an absurd level of obstruction and abandoning long-held principles, serving only to sow chaos in the Senate, and certainly not living up to the “ideals of representative democracy.”
Of course, there are numerous factors dragging down Grassley’s poll numbers — most notably President Obama’s popularity in Iowa and Donald Trump’s place at the top of the GOP ticket. But Grassley faces not only an electorate in which 64 percent support hearings for Garland, but also voters who do not recognize the man they have sent to the Senate for four decades.
As the Supreme Court session wrapped up for the term, PFAW hosted a member telebriefing on Thursday to analyze the impact of the term's decisions and to look towards the future of the Court overall. The latest term was atypical in a number of ways, from the death of Justice Antonin Scalia to Republican senators’ unprecedented and unconstitutional refusal to consider Judge Merrick Garland’s nomination, leaving the Court with only eight justices to decide cases.
On the call were PFAW’s Executive Vice President Marge Baker, Communications Director Drew Courtney, Senior Legislative Counsel Paul Gordon, and Senior Fellow Elliot Mincberg, who discussed the Republicans' blockade of the Garland nomination, the impact of the court being forced to operate with only eight justices for a significant portion of the term, and the future of the Supreme Court in coming years, with three of the current justices soon to be over the age of 80. They also fielded questions from members around the country, unpacking the outcomes of cases such as Fisher v. University of Texas, Whole Women’s Health v. Hellerstedt, U.S. v. Texas and others.
Mincberg said that “this term turned out very differently” than many expected because of two primary reasons: Justice Scalia’s passing, and Justice Kennedy joining the moderate justices in decisions on cases such as Fisher. Baker stressed that “we need a full Court” in order for the Supreme Court to work effectively and encouraged members to speak out about the issue. She also emphasized that “it does make a difference to vote,” and that Americans need to have their voices heard by their representatives about the Court.
You can listen to the full telebriefing here:
To: Interested Parties
From: People For the American Way Foundation, Constitutional Accountability Center
Date: July 6, 2016
Re: Harming Justice: Effects of an Eight-Justice Supreme Court (End-of-Term Supplement)
About a month before the end of the Supreme Court Term that concluded in late June, Justice Ruth Bader Ginsburg commented that “eight” is “not a good number for a multi-member court.” That statement echoed the words of many of her present and former colleagues on the Court and other federal courts. This includes the late Justice Antonin Scalia himself, who wrote in 2004 that proceeding with eight justices “impairs the functioning of the Court.” This was also a key finding of our report earlier this year, entitled Material Harm to our System of Justice: the Consequences of an eight-member Supreme Court.
In fact, the last month of the Supreme Court’s Term has proven Justice Ginsburg and Justice Scalia correct. In two important cases decided in June – including a significant crucial case on immigration affecting literally millions of people across the country – the Court was unable to issue a decision on the merits and tied 4-4, leaving the lower court decision in place but setting no national precedent. In total, the number of 4-4 splits by the Court this Term was the largest in more than 30 years. This end-of-Term supplement strongly reinforces the conclusion of our original report: “having a short-handed Court for an extended period of time is harmful to the proper functioning of the Court and to the nationwide rule of law.”
Key findings from the supplement, which can be read in full here:
In United States v. Texas, the 4-4 split resulted in:
In Dollar General Corporation v. Mississippi Band of Choctaw Indians, the 4-4 split resulted in:
Additional problems posed by an eight-justice Court, include:
For more information on the effects of an eight-member Court as exemplified by the Supreme Court’s decisions in June 2016, please see Supplement: Material Harm to Our Justice System: The Consequences of an Eight-Member Supreme Court.
Before it adjourned for the summer in late June, the Supreme Court issued a series of important decisions, or non-decisions, on affirmative action, immigration, abortion, and other subjects. As with the Court’s actions since last October, and particularly since the death of Justice Scalia in February, the most significant message sent by these developments is this: the elections this November will be absolutely critical to the future of the Court and to all our rights and liberties.
Start with immigration. The Court split 4-4 on the challenge brought by Texas and other states to the president’s executive actions that would have kept families together by shielding undocumented parents of U.S. citizens from deportation and, in total, helped more than 4 million people across the country. The result of the tie vote is that the lower court decision stands without any opinion by the Court, so that a nationwide injunction by a single Texas federal judge against the president’s orders remains in effect. Although the Court doesn’t reveal who voted how in 4-4 splits, it’s almost certain that the four votes against the orders came from Chief Justice Roberts and Justices Alito and Thomas, joined by Justice Kennedy.
The Court was also split 4-4 in another important case in June, concerning whether Indian tribal courts can rule in civil cases (this one involving an assault) against non-tribe members who do business on Indian land. Altogether, the Court issued 4-4 non-decisions in five cases this term, the most in more than 30 years – a direct result of Republican Senators’ unprecedented blockade of the Garland nomination.
In several other important cases in June, Justice Kennedy sided with the Court’s moderates and produced positive decisions. This included a decision striking down an extremely restrictive Texas law that seriously and improperly limited women’s access to abortion by imposing draconian requirements on abortion clinics, as well as a decision approving a University of Texas plan to increase diversity on campus through affirmative action in admissions.
So does this mean that we have nothing to fear even if the Republican blockade of President Obama’s nomination of Judge Merrick Garland to the vacant seat on the Court succeeds and a President Trump places a right-wing conservative on the Court, because Kennedy is voting with the Court’s four moderates? Absolutely not!
First, the immigration non-decision itself shows that Kennedy – the author of Citizens United and part of the 5-4 majorities in Shelby County and Hobby Lobby and so many other cases damaging our democracy and our rights – unfortunately sides all too often with the Court’s far right wing. That was also shown earlier this term when an apparent 4-4 deadlock forced the Court to essentially punt in the Zubik case, leaving the important question of access to contraceptives and employer religious questions in limbo until the Court again has nine members. Whether than ninth seat is filled by President Obama (or by President Clinton if the Republican blockade continues) or by a President Trump is critical.
In addition, the age of the current justices makes clear that there will likely be additional vacancies during the first term of the next president. Three justices will be above 80 during that time, older than the average retirement age for justices. The president who fills these vacancies could easily tip the balance of the Court, not just on the issues the Court dealt with in June, but also on the environment, money and politics, LGBT rights, voting rights, access to justice, protection from government abuse, and many more. And the answer to whether we have a Senate that is willing to do its job and actually hold hearings and vote on nominees, unlike the current Republican Senate that has refused to even hold a hearing for Judge Garland after more than 100 days, will be crucial as well. Election Day 2016 truly is judgment day for the Court and for all of our rights and liberties.
To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: June 28, 2016
Re: Supreme Court Term 2015-16: Lessons on an Extended Vacancy
Last fall, our Supreme Court 2015-2016 term preview warned about what, in the Roberts-Alito era, has unfortunately become the standard:
[It] is an extremely conservative Roberts-Alito Court whose new term begins October 5. They have chosen to hear a number of cases that risk continuing the aggressive rightward march that has characterized the past decade. The 2015-2016 term may be yet another one where the American people enjoy less liberty, less equality, less power, and less control over our own democracy on the last day of the term than we had on the first.
But the term unexpectedly turned into one like no other. Justice Antonin Scalia passed away on February 13, 2016, halfway through the term, guaranteeing that the Court would temporarily have only eight members. And conservative leaders announced within hours of Justice Scalia’s death that they would not consider any nominee put forth by President Obama, no matter who it might be, but would consider only whoever the next president would nominate – a president who would not even take office for nearly another year. This ensured that the Court would remain understaffed not only for the rest of the 2015 Term, but also most if not all of the 2016 Term starting next October.
While this did not affect all Court decisions (certainly not those issued before Justice Scalia’s passing), the vacancy had a profound impact on a number of the Court’s decisions … or its non-decisions, as the case may be. When the justices are divided 4-4 on a case, they simply issue a one-sentence opinion stating that “the judgment [of the lower court] is affirmed by an equally divided Court.” In so doing, the Court upholds just the result, not saying anything about the circuit court’s reasoning, and not creating any precedent or providing any guidance for other courts. Instead, it leaves a nationwide resolution of the legal question open for the future. In the meantime, the lower court’s decision and its reasoning remain binding within that circuit, which may be different from how other circuits have decided the issue.
This term saw a number of such 4-4 non-decisions. Particularly harmful was a 4-4 split in the immigration case, described below, which will have profound impact on the lives of families across this nation. It also saw the justices working to avoid tie votes by ducking issues in one way or another. Consequently, resolution of many important legal questions has been significantly delayed. In some cases, people’s rights under federal law vary from one state to another as a result, exactly the opposite of why Congress passes such laws to begin with, and directly contrary to the reason we have a Supreme Court to be the final arbiter on legal questions.
During this unusual term, the actions and inactions of a Court that is ideologically split 4-4 on so many issues make it crystal clear that the Senate needs to end its misguided refusal to consider Judge Garland Merrick’s nomination, so that the Court can begin its next term in October with the full complement of justices that Congress intended.
One additional point came into greater clarity this term: that it is vitally important who we choose — as President as well as in the Senate — to fill the next vacancies on the nation’s highest court. Certainly, conservatives have taken this lesson to heart; it is notable that this term saw Justice Anthony Kennedy joining with the more moderate justices to produce 5-3 decisions in several important cases, in particular on abortion and affirmative action, much to the dismay of right-wing activists, who are now more energized than ever to make the future of the Court an issue in the 2016 elections. There can be no mistake – the 2016 elections will be Judgment Day for the Court.
United States v. Texas: Perhaps no case better exemplifies the damage that can occur when a vacancy prevents the Supreme Court from resolving an issue than the DAPA/DACA+ case. In 2014, the Obama Administration used the discretion set out in the nation’s immigration laws to temporarily protect millions of families across the country from deportation. Although conservatives called this a usurpation of power, many legal scholars concluded that it was well within the president’s discretion. The court challenge began when conservative state governors chose to file a lawsuit in a district where it stood a good chance of being assigned to a particular judge whose previous judicial actions had clearly been affected by his open and intense political disagreement with the federal government’s immigration enforcement policies. They got the judge they wanted, and he issued a nationwide injunction ordering the Administration not to proceed, pending a full trial. A divided Fifth Circuit panel upheld the injunction.
The Supreme Court heard the Administration’s appeal and, with only eight members, divided 4-4. This did not answer any of the legal questions, but – devastatingly – left the lower court’s nationwide injunction in place pending a trial. Millions of people now have no idea what their status or that of their closest family members may be, because the next president may alter or eliminate the programs, and even if that doesn’t happen, it could be another term or more before the issue gets back to a nine-member Court. All that this vulnerable population can do is wait, forced to remain in the shadows.
The Rights of Working People
Friedrichs v. California Teachers Association: In this case, anti-labor advocates were asking the Court to overrule an important 1977 case on the rights of working people (Abood v. Detroit Board of Education) by striking down requirements that public sector employees who are not members of the unions that are required by law to represent them pay “fair share” fees to cover the costs of that representation. Justice Alito had already authored two opinions (Knox v. SEIU and Harris v. Quinn) criticizing the reasoning of the 1977 Abood precedent and, in the latter case, essentially invited conservative activists to generate a case to give the Court an opportunity to overrule it and severely weaken workers’ ability to come together, form a union, and effectively negotiate their working conditions and benefits. Friedrichs was that case.
Oral arguments seemed to suggest a likely 5-4 decision, against the unions. But a month later, Justice Scalia passed away. A few weeks later, an evenly divided Court affirmed the judgment of the lower court opinion, which had (consistent with the Abood precedent) upheld the fair share payments. As a result of the 4-4 split in this particular case, Abood (being a Supreme Court case) remains binding precedent for all lower courts throughout the nation, protecting the ability of working people to organize effectively. But uncertainty about this major issue affecting working people remains.
The parties seeking to eliminate fair share fees asked the Court to rehear the case when it is again fully staffed, a request the Court has denied. But if a restored Supreme Court takes a similar case in the future, there can be no question that the identity of our next justice will have an enormous impact on working people.
Fisher v. the University of Texas at Austin: In a 4-3 decision, the Supreme Court upheld the University of Texas at Austin’s affirmative action program, a carefully considered plan that has been in litigation for years. (Justice Kagan recused herself from the case because she had been involved in it while at the Justice Department, leaving only seven justices and making a tie vote impossible.) This was a major victory for Americans who cherish our national ideals of fairness and equal opportunities for all. Had Justice Scalia been on the Court, the result most likely would have been a 4-4 tie, due to Kagan’s isolated recusal as opposed to an extended vacancy.
Justice Kennedy wrote for the majority, joined by Justices Ginsburg, Breyer, and Sotomayor. The majority confirmed that UT has a compelling interest in the educational benefits that flow from student body diversity.
The Fisher opinion also stated that universities must justify the use of race in admissions, even in the minor role it played at UT, with extensive research and careful analysis. The opinion went into great detail about the exhaustive efforts UT had made to determine whether it was necessary to ever take race into consideration in its admissions program. But the Court also noted that circumstances can change: Any university (including UT Austin itself) must regularly update its in-depth analysis of whether their admissions policies are adequately serving the purpose of providing the educational benefits of a diverse student body, or whether any ways to achieve the same goal can be devised that do not use race as a criterion. That would seem to ensure that public university affirmative action programs can be retained or possibly even expanded when necessary, or cut back or even eliminated if they are no longer needed to achieve their compelling goal.
Justice Alito’s dissent (joined by Justice Thomas and the Chief Justice) took a very different view of the case, accusing the majority of “licens[ing] UT’s perverse assumptions about different groups of minority students.”
Multiple people can see the same thing and interpret or experience it in completely different ways, based on their backgrounds and life experiences. That happens on university campuses, and apparently at the Supreme Court, too.
Hawkins v. Community Bank of Raymore: An evenly divided Court was unable to resolve a split between two circuit courts on whether a particular federal law allows lenders to require that a borrower’s spouse guarantee a loan. As a result, this type of discrimination on the basis of marital status is allowed in one circuit, illegal in another circuit, and a complete unknown in the circuits that haven’t considered the question. As a result, the conditions lenders can impose on people under a federal law depends on where you happen to live. Even lenders and consumers in some neighboring states have different rules that apply. The 4-4 tie by the understaffed Court leaves unresolved a legal question that affects borrowers and lenders alike. Also, as noted above, it wholly defeats the purpose of having federal laws, which are supposed to provide uniformity to address national issues. And it defeats the purpose of having a court established by the Constitution to resolve such matters. The Court subsequently denied rehearing in the case, so the confusion will remain until another case raising the issue is presented to the Court.
Franchise Tax Board of California v. Hyatt: In this case, an individual sued California in a Nevada court, without California’s consent, and won. California’s appeal to the Supreme Court had two components. One concerned the substance of the Nevada court’s ruling, but the other was more fundamental: California urged the justices to overrule a 1976 case (Nevada v. Hall) allowing people to sue a state in another state’s court without the first state’s consent. (In that case, a Nevada vehicle on official state business in California collided with another car; the California passengers were allowed to go the California courts and sue the state of Nevada.) The Supreme Court was evenly divided on the constitutional question of overruling the 1976 case, which meant the state court’s judgment that it had jurisdiction over another state was affirmed. As a result, the justices had to address the substantive issue, and on that they were able to reach a 6-2 decision. But the important constitutional question affecting relations among states and the rights of victims remains unanswered, leaving future litigants uncertain whether their lawsuits will be thrown out as unconstitutional.
Dollar General Corporation v. Mississippi Band of Choctaw: This case should have resulted in an important ruling on the authority of tribal courts in certain non-criminal matters. It involved a large chain store that had opened a branch within the Mississippi Band of Choctaw reservation, and a store manager who had allegedly sexually molested a teenage member of the tribe. An evenly divided Supreme Court was unable to address the basic question of whether Native American tribal courts have jurisdiction to hear a tort lawsuit against someone who is not a native American.
Deciding Not to Decide
Twisting Religious Liberty Into a Weapon
Zubik v. Burwell: Originally expected to be one of the bombshell cases of the term, this critically important religious liberty case turned out to be a dud, due to the apparent split on the 8-justice Court. Under the Affordable Care Act, the Administration crafted an accommodation to the contraception coverage requirement set forth in the ACA: If religious nonprofits disapprove of certain contraception, they simply tell their insurer or the federal government of their objection, at which point the insurer offers the coverage separately to employees who want it. But a number of conservative religious nonprofits claimed that even filling out a form with that information or otherwise making such a notification violated their free exercise of religion under the federal Religious Freedom Restoration Act (RFRA). Their argument was soundly rejected by every circuit that heard it but one.
A ruling for the religious nonprofits would have expanded the dangerous distortion of religious liberty that the Roberts Court began in Hobby Lobby, opening the door to even more efforts to use claims of religious liberty as a weapon to deny other people their legal rights. But a ruling for the Administration would have shown that this tactic has limits beyond which even the Roberts Court won’t go, hopefully providing some level of protection to populations targeted by the Religious Right.
But with only eight members, the Court took a highly unusual step: Less than a week after oral arguments, and after the justices had taken a vote among themselves on the case, the Court, in what appeared to be an effort to avoid a 4-4 non-decision crafted its own version of a policy compromise and asked the parties to address it. Ultimately, when the Court issued its final ruling in May, it did so in a unanimous unsigned opinion vacating all the lower court opinions on the subject and directing them to let the parties try to reach an agreement on their own. Buying itself time, the Court determined that if the Administration and the numerous religious nonprofits in litigation couldn’t reach agreement, (and agreement is highly unlikely), then the lower courts should readdress the issue, and the Supreme Court could eventually hear an appeal and settle the matter then.
In other words, the justices punted. They explicitly stated they were expressing no view on whether the accommodation was a substantial burden of the nonprofits’ religious exercise, or whether the government’s goal of providing women with access to contraceptive healthcare is a compelling interest.
Millions of women employees of religious nonprofits are left without certainty that they can obtain the contraception that they are entitled to under the law. Also left hanging and unsure of their rights are the employers claiming the accommodation violates their religious liberty. Nor has any guidance been provided for lower courts that may hear cases in other contexts involving the denial of legal rights to targeted populations under the guise of religious liberty. With an understaffed Court, everyone loses.
Limiting Congress’s Power to Hold Wrongdoers Accountable in Court for Violating People’s Rights
Spokeo v. Robins: Although it did not receive as much media coverage as some of the other cases this term, Spokeo was an extremely important case. The Supreme Court accepted it to address the question of whether someone has standing to sue in federal court if their “only” injury is that a right created by Congress was violated. At issue is whether such cases meet the constitutional requirement that federal courts have jurisdiction only where there is an actual case or controversy before them. A ruling in favor of the corporation that had allegedly violated the law would have severely weakened the ability of Congress and the people of our country to hold corporations accountable when they violate a federal law.
But when the understaffed Court issued its opinion, it provided no answer to this extremely important question. Instead, in a 6-2 opinion, the justices expressed no position on whether the plaintiff had standing to sue (the key issue in the case), called the Ninth Circuit’s standing analysis “incomplete,” vacated the lower court’s opinion, and directed it to revisit the issue.
Although we don’t know for sure, this “deciding not to decide” may very well have been done as a compromise to avoid a 4-4 tie. In any event, the issue is likely to come back to the Court after the Ninth Circuit rules again.
Cases Not Affected by the Vacancy
Of course, not all high-profile cases were affected by the vacancy. Some were decided before Justice Scalia died. Some were decided after he died, but with a majority opinion nonetheless.
Reproductive Freedom and Choice
Whole Woman’s Heath v. Hellerstedt: Decided on the last day of the term, this 5-3 opinion authored by Justice Breyer struck down Texas’s notorious targeted regulation of abortion providers (TRAP) law. Such laws, pushed by anti-choice zealots across the country, are presented as protections for women’s health, but in reality they are designed to reduce if not eliminate women’s access to abortion. Such laws are a key component of the far right’s long-term project of gradually chipping away at the constitutional right to an abortion. However, what they achieved instead was a ringing affirmation of that right.
The majority (Justices Breyer, Kennedy, Ginsburg, Sotomayor, and Kagan) reversed an opinion of the Fifth Circuit Court of Appeals that had upheld requirements that (1) licensed abortion facilities meet the same building requirements as an ambulatory surgical center, and (2) those performing abortions have admitting privileges at a hospital within 30 miles. The Court ruled that these are medically unnecessary regulations with the effect of putting an undue burden on women’s ability to exercise their constitutional rights, a key part of the test set forth by the Supreme Court in 1992’s Planned Parenthood v. Casey (which Kennedy was part of).
The Court criticized the Fifth Circuit for not providing the level of scrutiny appropriate for a constitutional right, but instead treating its review of the law with the same deference that ordinary legislation receives. The justices directed lower courts to look critically at whether a law affecting abortion actually accomplishes the goals the state is using to justify it. In this case, the Court went into great detail on how the Texas law burdens women’s access to abortion, and it demonstrated how the law was, in fact, not necessary to protect women’s health but makes it much harder to get access to abortion services. As such, the burden was undue, and thus unconstitutional.
Whole Woman’s Health strongly reaffirms Casey and will make it far more difficult for states to defend their TRAP laws from new court challenges, although much will depend on lower court factual findings. With women’s constitutional right to an abortion constantly under attack, this ruling serves as a powerful reminder of the importance of who will be nominating and confirming those who will serve on the Supreme Court and other federal courts.
Voting and Democracy – One Person, One Vote
Evenwel v. Abbott: The Court ruled 8-0 that when states fulfill their constitutional obligations to equalize populations within state legislative districts, they are permitted to do what they’ve always done: count the entire population, the same as what the Constitution requires for equalizing congressional districts. That provides equality of representation. But Sue Evenwel and Edward Pfenninger, Texans whose districts include relatively few non-citizens, had argued that states must count only eligible voters; otherwise, their vote counts less than the vote of someone who lives in a district with a large number of non-citizens or others who cannot vote. Richard Hasen had called this case “an attempted [partisan] power grab in Texas and other jurisdictions with large Latino populations.” Texas defended the “total population” approach but asked the Court to say that, in the future, states could also use just voting age population.
The Court didn’t take the bait. Writing for a six-person majority, Justice Ginsburg gave a powerful defense of equality of representation, tying it to the will of the framers of both the original Constitution and the Fourteenth Amendment. (Justices Thomas and Alito agreed with the result but not the reasoning.) In other words, every person deserves representation. Importantly, the Court refused to address the constitutionality of counting only eligible voters, saying that was a question they need not address in this case. Had the Court legitimized counting only eligible voters even without saying that states must take that approach, it would have been a dangerous signal to conservative state legislatures to break with precedent and model their districts that way in the future.
Voting and Democracy – Partisan Gerrymandering and Further Weakening Voting Rights
Harris v. Arizona Independent Redistricting Commission: This could have been a major case where the Court defined illegitimate partisan gerrymandering and ruled that such gerrymandering causing any population differences among districts invalidates redistricting decisions that were also done for legitimate reasons (like complying with the Section 5 preclearance requirements that existed at the time). Another question raised in this case was whether trying to meet Section 5 preclearance in redistricting that took place before Shelby County was legitimate at all, since the formula subjecting Arizona to that requirement was later found unconstitutional. But in a unanimous 8-0 opinion, the Court concluded there was no reason to address the partisan gerrymandering issue. Writing for the Court, Justice Breyer concluded that seeking to comply with Section 5 preclearance, rather than partisanship, clearly explained the redistricting decisions. The Court also ruled that Shelby County didn’t retroactively make the Arizona legislature’s motives illegitimate. So what had a potential to be a major case turned out not to be: the Court directly answered the question before it and did not effect a significant change in redistricting law.
Cutting Off Individual and Class Action Lawsuits
Campbell-Ewald Company v. Gomez: Class action suits are often the only way to effectively obtain redress from large companies for illegal conduct and provide deterrence for others. Over the years, the Roberts-Alito Court has been chipping away at the ability of victims to use class actions to hold corporations accountable. But this case threatened to make it nearly impossible. The company in this case was asking the Court to rule that a defendant can terminate a class-action suit against it simply by making a settlement offer to the individual representing the class, even if it’s not accepted, before that individual files a motion for class certification with the court. The argument was that offering the settlement would mean there was no longer a “case or controversy,” which Article III of the Constitution requires for a federal court to have jurisdiction in a case.
In a somewhat surprising win for ordinary people, the Court rejected the argument by a vote of 6-3. Writing for a 5-member majority (the moderates plus Justice Kennedy), Justice Ginsburg concluded that if the plaintiff rejects the offered settlement, the case does not automatically terminate. She noted that ruling otherwise would improperly let corporations spend minimal amounts to pay off individual plaintiffs and forestall all sorts of class actions. (Justice Thomas provided the sixth vote in a concurrence that used a very different legal approach to reach the same result.)
However, the Court announced a potential loophole for corporations: The Court noted that it was not deciding whether a corporation could prevent a class action suit by placing the full amount of the plaintiff’s individual claim in an account payable to the plaintiff (rather than just making an offer), and then having the court enter a judgment in favor of the plaintiff in that amount and dismissing the case before the plaintiff has a chance to ask the judge to certify the proposed class. We can be confident that such a case will reach the Court soon, making it critically important who fills Justice Scalia’s vacancy, as well as others that may open in the near future.
Sabotaging the Next Term
When Justice Scalia passed away in February, Senate Majority Leader Mitch McConnell immediately announced that the Senate would not consider any nominee put forth by President Obama, no matter who it might be. Nevertheless, true to his constitutional responsibilities, the president nominated Chief Judge Merrick Garland of the D.C. Circuit to fill the vacancy on the Supreme Court. More than 100 days later – long past the point when other nominees would have had their confirmation votes – Judge Garland is still being denied a hearing, and Senate Republicans are holding the seat open in the hopes that a President Donald Trump will fill it.
Under the conservatives’ plan, the Senate will not consider anyone until the next president makes the nomination … a president who will take office when the Court’s 2016-2017 Term is already half over. A final confirmation vote would be many weeks later, at the very least. Faced with the prospect of having most or even all of next term hobbled by a needlessly ongoing vacancy, the justices are responding, clearly aware of the damage to the Court’s ability to properly function. This shows up in the number and types of cases the justices are hearing next year. The Court continues to lag behind previous years at this same point in the number of cases that they have accepted for next term, which is now fewer than 30. In addition, most of the cases are not blockbusters; one important constitutional religious liberty case has been accepted, but that was before Justice Scalia passed away.
This term, the Court was unable to address a number of very important legal questions affecting millions of people across America. Next term, it may not even try, if the obstruction in the Senate continues.
The Supreme Court Conflict Shines a Light
on the Massive Obstruction of Lower Court Nominees
The very high-profile obstruction of Supreme Court nominee Merrick Garland is just the most visible and most extreme version of a pattern of obstruction that Senate Republicans have been doing to sabotage the judicial confirmation process throughout the entire federal judiciary.
On the circuit and district courts, the Republican-controlled Senate is virtually abandoning its constitutional duty to consider President Obama’s judicial nominees. After confirming only 11 circuit and district court judges last year (the lowest since 1960, the end of the Eisenhower era), the Senate has confirmed only an additional 8 so far this year, for a total of 19 circuit and district judges confirmed during this Congress. Indeed, the 114th Congress is on pace to see the fewest confirmation votes of any two-year Congress in over 50 years.
But it's not because there aren't any vacancies. In fact, current circuit and district vacancies have skyrocketed since the current Congress began in January, from 40 then to 80 now. The number of those vacancies that have been officially designated judicial emergencies has jumped from 12 at the beginning of 2015 to 29 today.
Nor is it because there is a lack of nominees. Far from it. As of today, there are a total of 50 nominees awaiting consideration by the Senate, Of these 32 are still in the Senate Judiciary Committee, only 7 of whom have had hearings. And another 18 nominees have cleared the Judiciary Committee and now await votes on the Senate floor. Five of these have been waiting since last year for votes.
Just as it matters immensely who serves on the Supreme Court – and who nominates those justices – it matters who serves on our nation’s circuit and district courts as well. All these positions have an enormous impact on the lives of people across the country, which is exactly why the Senate leadership, with the full support of far right activists, have put so much effort into derailing indisputably qualified nominees to the federal judiciary at all levels.
Since Justice Scalia’s passing, people across America have seen the damage caused by an extended vacancy on a Court that has been left evenly divided ideologically. Among those who have witnessed the damage are all 100 members of the United States Senate, whose Republican leaders are nevertheless refusing to even hold a hearing for an unquestionably qualified nominee who should have already had a confirmation vote by now. Had the Senate acted in a timely manner, and if they had voted to confirm Judge Merrick, the Court would be fully staffed by now, perhaps having avoided some of its 4-4 rulings and confident in its ability to take new cases and begin the next term at full strength.
Instead, unless the Republican Senate leadership abandons its unprecedented obstruction, they will be deliberately preventing the Supreme Court from functioning effectively for most if not all of next term as well. This deliberate sabotage of the American judicial system from the Supreme Court on down harms everyone.
Glenn Beck was live on the radio today when the news broke that the Supreme Court had struck down a Texas law designed to limit access to legal abortion under the guise of protecting women's health. In response to the ruling, Beck's co-host Stu Burguiere lamented that Justices Clarence Thomas and Samuel Alito are the only two reliably conservative votes on the court at the moment and noted that Donald Trump is hoping to use this issue to win over conservative voters in November.
Beck, who doesn't think that Trump really has any chance of winning in November, said that it is a mistake for the Republicans who control the Senate to keep blocking President Obama's nomination of Merrick Garland to fill the seat left by the late Antonin Scalia.
"I personally think that it is a mistake for them not to give him an up or down vote," Beck said of Garland. "I think it is a mistake. And I also think that they did this for a reason, that they put somebody in who is somewhat acceptable and they did it because they could say, 'See, they're absolutely unreasonable.' And if Hillary gets in and there is a Democratic congress or Senate? Done! You think that they're going to get more reasonable than this guy?"
"I would pull the trigger," Beck stated, "because the Constitution says give them an up or down vote. That doesn't mean you accept them; it does mean give them an up or down vote. And just take that issue away from them."
WASHINGTON – In response to the Supreme Court’s decision today in Whole Woman’s Health v. Hellerstedt, People For the American Way President Michael Keegan issued the following statement:
“Today’s Supreme Court decision reaffirmed women’s constitutional right to reproductive freedom. This ruling makes clear that that right isn’t abstract; it includes the ability to actually access a safe, legal abortion.
“In Texas and across the country, Republican elected officials have attempted to enact unnecessary, burdensome regulations that effectively prevented far too many women from being able to get an abortion. The Court’s decision to strike down Texas’s sham laws attacking abortion access is a proud moment for anyone who cares about our Constitution.
“We turn to the Supreme Court to protect constitutional rights that affect all of our lives, including the critical and deeply personal issue of access to safe abortion care. Given that the next president will likely appoint multiple Supreme Court justices, today’s decision reminds us of how dangerous a Donald Trump presidency would be to women across the country. We cannot let Trump, who has said that women should be punished for having an abortion and who supports the full defunding of Planned Parenthood, appoint Supreme Court justices who attack and undermine women’s constitutional rights.”
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.
In response to the Supreme Court’s 4-4 tie in DACA+/DAPA, which leaves in place a nationwide injunction against these programs, Catalina Velasquez, the director of People For the American Way Foundation’s Young People For leadership program, released the following statement:
“Today the Supreme Court failed to protect millions of people in our country from deportation. Family separation is abhorrent, and it goes against our core values as a society, ripping families apart just because of their immigration status.
“As a transgender, undocumented immigrant from Colombia whose family was deported my first semester at Georgetown University, I know just how critical programs like these can be for a person’s personal safety and how harrowing the effects of mass deportation can be for our community. It’s profoundly upsetting that the Supreme Court today will allow the deportation of millions of people. And it is disheartening that an administrative policy like this one aimed simply at facilitating the right to provide for ourselves is still a contested issue.
“Today’s decision affects almost half of the 11.2 million undocumented immigrants who would have benefited from the short term relief from deportation these plans offered. At Young People For, we will continue to advocate for the case to be reargued, and stand with young undocumented people and their families in support of immigration reform, so immigrants are treated with the dignity and respect we deserve.”
Catalina Velasquez will be available for interviews in English or Spanish. To schedule an interview, please call 202-467-4999.