Fair and Just Courts

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

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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.

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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

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Samuel Rodriguez Gives Trump Chance To 'Redeem The Narrative' With Latinos

Hispanic evangelical leader Samuel Rodriguez has a consistent political strategy: position himself as a nonpartisan advocate committed “not to the agenda of the elephant or the donkey but the lamb,” all while trying to convince Hispanic Christians to support socially conservative causes and politicians.

You might think that the immigration-reform-promoting Rodriguez would be in a bind with immigrant-demeaning Trump as the Republican nominee. But even though Rodriguez has been publicly critical of Trump’s rhetoric on immigration, he seems to be positioning himself to encourage Hispanic evangelicals to support the Republican candidate. He has said Trump blew it with his early campaign rhetoric and that the candidate must “redeem the narrative” with Latinos.

This week Bloomberg reported that Trump would be delivering a videotaped message to be shown at this weekend’s meeting of the National Hispanic Christian Leadership Conference (NHCLC), which Rodriguez heads, and whose board includes Liberty Counsel’s Mat Staver. The pro-immigrant group America’s Voice called on Rodriguez not to let Trump deliver a message to the group given Trump’s “hateful, incendiary rhetoric directed at our communities.”

(Just days ago, Trump attacked NHCLC board member Russell Moore, a leading Southern Baptist official, as a “nasty guy with no heart.” Rodriguez, who co-authored with Moore a Wall Street Journal op-ed criticizing Trump’s immigration rhetoric and policies last July, said at the time that “an attack on Russell Moore is an attack on the entire evangelical community.”)

Rodriguez told the Washington Post earlier this week that he would wait to see if the message was “respectful” before deciding whether to show it. Today it is clear that Trump has satisfied Rodriguez, because the NHCLC put out a press release saying the group would show video messages from Trump and from Hillary Clinton on Friday evening.

While Rodriguez says he will not endorse a candidate, it’s hard to take him seriously as some kind of honest broker between the staunchly pro-choice Clinton and the muddled punish-the-woman Trump, who has said he would nominate Supreme Court justices to overturn Roe v. Wade.  As we recently noted, Rodriguez has said, “I’m going to vote for protecting the Supreme Court from judges that are activists, that run counter to our Judeo-Christian value system.” And he has made it clear that he believes Hispanic Christians must make opposition to abortion, not support for immigrant families, the basis of their vote.

In an interview being promoted by Glenn Beck’s The Blaze today, Rodriguez doubles down on that message, saying it would be “morally reprehensible” for Christians to vote for a candidate who supports Planned Parenthood, saying they would need to “repent.”

“I want to speak to every single African American, Latino, and Anglo Christ follower who believes in biblical orthodoxy — how can we justify supporting anything — be it Republican or Democrat — that in any way, form or shape defends Planned Parenthood?”

Trump has repeatedly praised Planned Parenthood but says he wants to defund the women’s health organization unless they agree to stop providing abortion services.

Rodriguez told The Blaze that it would take “a miracle” for Trump to win over the Latino community, but suggested it could be possible if he apologizes and chooses a Hispanic running mate, mentioning Marco Rubio, Susana Martinez and Ted Cruz.

The supposedly nonpartisan Rodriguez has filmed a video promoting the Republican Party’s faith-outreach project. Only 16 percent of American Latinos identify themselves as evangelical, according to the Pew Research Center, but they are more likely than other Hispanics to vote Republican.

Samuel Rodriguez: Getting Conservative SCOTUS Trumps Immigration Reform

As head of the National Hispanic Christian Leadership Conference, Samuel Rodriguez has worked to get more Latino voters, especially evangelicals, to back conservative candidates, while at the same time trying to get Republicans to stop trash-talking Latino immigrants and back immigration reform.

But it appears that Rodriguez has thrown his lot in with Donald Trump, the very candidate who kicked off his campaign by trash-talking Latino immigrants and calling for mass deportations.

While he may be an outspoken advocate of immigration reform, when push comes to shove, as it has with Trump’s all-but-certain nomination, Rodriguez makes it clear that he is first and foremost a Religious Right culture warrior.

Rodriguez pushes the Religious Right line that religious freedom is threatened in America. There is an attempt to “silence Christians” in America, he says, and Christians cannot sit out elections because “today’s complacency is tomorrow’s captivity.” He also believes there is a spiritual battle under way to “annihilate” the family.

In the end, his advocacy for immigrant families takes a back seat to his opposition to legal abortion and marriage equality. He said as much at an Evangelicals for Life event in January, telling Latinos that it’s fine to march for immigration reform —“as long as it’s not amnesty or illegal immigration; we need to stop that” — but “we must be above all things pro-life.”

Although Rodriguez manages to cultivate a public image as a nonpartisan bridge-builder, he regularly partners with some of the most extreme voices within the Religious Right. The stridently anti-gay Liberty Counsel serves as NHCLC’s official “legislative and policy arm” and Liberty Counsel President Mat Staver serves as an NHCLC board member and its chief legal counsel. Last fall Rodriguez called Cindy Jacobs, who has predicted a new civil war between God-loving and gay-loving states,  “one of the most anointed voices, prophetic voices in the Kingdom of God.”

In a story last week by right-wing pundit Todd Starnes of Fox News, Rodriguez dismissed talk by some evangelical leaders that Christians should, in the words of pastor Charles Haddon Spurgeon, “Of evils choose none.” Rodriguez says not voting is “sacrificing your Christian worldview on the altar of political expediency. It is silly to talk about not voting for either candidate. Every single Christian should vote.”

And while Rodriguez doesn’t mention Trump by name, it is clear that he will not be voting for Hillary Clinton or Bernie Sanders:

“I will vote my Christian values,” Rodriguez said. “It’s life, the family ethos, it’s religious liberty, it’s limited government. That’s the person I’m going to vote for.”

Rodriquez conceded that the 2016 candidates are not his “dream team” – but he’s only concerned about one issue – the Supreme Court.

“I’m going to vote for protecting the Supreme Court from judges that are activists – that run counter to our Judeo-Christian value system.”

This is a very different message than Rodriguez conveyed in an op-ed for the Wall Street Journal in July, which he co-wrote with Southern Baptist official Russell Moore, where he described Trump as an unchristian, unethical and unelectable politician.

Trump tweeted earlier this week that Moore is “a terrible representative of Evangelicals” and a “nasty guy with no heart!”

Unlike Rodriguez, Moore is standing by his opposition to Trump.

 

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

The Supreme Court issued a brief unsigned opinion today in the Zubik case, and vacated the conflicting opinions on whether the Religious Freedom Restoration Act (RFRA) allows religious nonprofits to effectively take away Affordable Care Act-required contraceptive coverage from their employees. The result is to punt the issue away until the Court again has nine justices, reinforcing again why the Court must have a full complement of justices and why the Supreme Court is such a critical issue in the 2016 elections.

Before the Court in Zubik were a series of cases in which federal appeals courts had ruled that objections by religious colleges and other employers to contraceptive coverage had already been accommodated by the Administration by making clear that the coverage was to be provided by insurers and not involve any employer who expressed a religious objection, so that RFRA was not violated and coverage should continue. The more conservative justices on the Court, including Justice Kennedy, were nonetheless troubled by the claim that the religious employers were still involved in providing the coverage, at least by specifically having to provide notice to object to it. So the Court ordered supplemental briefing in the case on whether it was possible to continue to provide the coverage with no involvement by the employers, other than providing insurance that did not include contraceptive coverage.

In its opinion today, the Court vacated the decisions being considered in Zubik and directed that, on remand, the lower courts should give the government and the objecting employers the opportunity to try to resolve the issue, in light of what the Court characterized as the possibility, as expressed in the supplemental briefs, of ensuring that the coverage can be provided without involving the employers. If needed, the lower courts would then issue opinions on the issue, which could be reviewed by the Supreme Court. Interestingly, the Court also gave the same treatment to the single appellate court opinion that ruled in favor of religious employers and was not included in the Zubik case, vacating that decision as well to be reconsidered again if necessary. The Court specifically made clear that while this process is going forward, women covered by the insurance plans should “receive full and equal health coverage, including contraceptive coverage," and that the “Government may not impose taxes or penalties” on the religious employers for failing to provide the formal notice of their religious objection which they had complained about in their lawsuits. In other words, no harm should occur to any of the parties while the government and the employers try to work out the problem and litigate it in the lower courts if necessary. A separate concurrence by Justices Sotomayor and Ginsburg further emphasized that the decision does not resolve either way the substantive issues, including whether the religious employers do incur a “substantial burden” that triggers RFRA.

While both sides can therefore claim some temporary victory from the Court’s ruling, the clear loser is our American justice system. A crucial legal issue that clearly divides the justices on the Court concerning the application and meaning of RFRA and contraceptive rights remains unresolved. Despite the apparent optimism in the Court’s brief opinion, it seems unlikely that every  religious employer in the country will agree to any accommodation under which its employees will still get contraceptive coverage, so that the issue is very likely to remain unresolved and return to the Supreme Court again. Without nine justices on the Court, it seems clear that the Court will not be able to resolve the issue, just as it could not at present. That makes the issue of filling the current vacancy on the Court, and who will be the president that fills future vacancies on our closely divided Supreme Court, extremely crucial now and in November.

PFAW Foundation

PFAW Releases Spanish-Language Ad Criticizing McCain, Flake for Holding Supreme Court Seat Open for Trump

Today, People For the American Way (PFAW) released a Spanish-language radio ad in Arizona criticizing Senators John McCain and Jeff Flake for refusing to give fair consideration to Judge Merrick Garland, making clear that they’d prefer to have Republican presumptive nominee Donald Trump fill the seat. The ad, the first of its kind talking specifically to Latino voters about Trump and the Supreme Court vacancy, will run for a week on Spanish-language radio in Arizona.

PFAW Director of Latinos Vote! and Manager of Political Campaigns Lizet Ocampo stated:

“Donald Trump is a bigot who has called Mexican immigrants rapists, supports mass deportation, and referred to women as ‘pigs’ and ‘dogs.’ Yet Senators McCain and Flake would rather hold the seat open for him to fill than do their job and give fair consideration to an extraordinarily well qualified nominee like Judge Merrick Garland. It’s nothing short of disgraceful.”

Spanish-language ad:

Listen in English:

Script:

Sabemos que la Corte Suprema toma algunas de las decisiones más importantes como la inmigración, el derecho a votar y la salud.

Y estas decisiones afectan a nuestros amigos, a nuestras familias y a nuestra comunidad.

Entonces, ¿Por qué los Senadores McCain y Flake se rehúsan a cumplir con su responsabilidad y bloquean al candidato del presidente Obama?

¿Será porque quieren que sea Donald Trump, la persona que dijo que los inmigrantes mexicanos eran violadores y traficantes de drogas, quién nombre a nuestro siguiente juez de la Corte Suprema?

Al no cumplir con su responsabilidad, nuestros senadores están haciendo el típico juego sucio de los republicanos. ¡Que vergüenza!

McCain y Flake deben confirmar al Juez de la Corte Suprema nominado por Obama; y dejar de hacer lo que les pide Trump.

Este mensaje es pagado por People For the American Way, www.pfaw.org, y no está autorizado por ningún candidato o comité de candidato. People For the American Way es responsable por el contenido de este anuncio. 

English translation:

We know the Supreme Court makes some of the most important decisions like immigration, voting rights, and health care. And these decisions affect our friends, families, and community.

So why are Senators McCain and Flake refusing to do their job – and blocking President Obama's nominee?

Is it because they want to see Donald Trump – the man who called Mexican immigrants rapists and drug dealers – get to name our next  Supreme Court Justice?!

By not doing their job, our Senators are playing dirty Republican tricks.

What a disgrace!

McCain and Flake need to confirm President Obama’s Supreme Court nominee – and stop doing Donald Trump’s bidding.

Paid for by People For the American Way(www.pfaw.org) and not authorized by any candidate or candidate’s committee. People For the American Way is responsible for the content of this advertising.
 

Chuck Grassley, The Do-Nothing Chairman

To: Interested Parties
From: Ari Rabin-Havt, Senior Fellow, People for the American Way; Billy Corriher, Director of Research, Legal Progress, Center For American Progress
Date: May 11, 2016
Re: Chuck Grassley, The Do-Nothing Chairman

Senator Chuck Grassley’s (R-IA) refusal to hold a hearing on President Obama’s nomination of Judge Merrick Garland to the Supreme Court highlights a pattern of inaction apparent throughout his leadership of the Senate Judiciary Committee.

Grassley’s refusal to do his job goes well beyond his partisan blockade of a qualified nominee to our nation’s highest court. A complete look at his 16-month tenure as Judiciary Committee chairman reveals a pattern of obstruction in service to partisan interests.

  • Grassley’s committee has confirmed circuit and appellate judges at a glacial pace, especially when compared to a similar period during Senator Patrick Leahy’s chairmanship.
  • The Judiciary Committee, under Grassley’s leadership, has done nothing to strengthen and restore the Voting Rights Act, even though attacks on the right to vote have swept across the country.
  • Partisanship and pressure from the far right have resulted in Grassley dragging his feet instead of conducting the committee’s critical functions. The confirmation of Loretta Lynch to be attorney general, for instance, took longer than any other cabinet appointment since the Eisenhower Administration.  

Under Chuck Grassley Judicial Confirmations Are Proceeding at a Glacial Pace

The responsibilities of a Senate committee chairman extend beyond the hearing room. It is his or her job to guide confirmations through the committee and onto the floor for consideration by the full Senate.

Looking at the data, it becomes obvious that Chuck Grassley’s refusal to do his job goes beyond his Supreme Court obstruction and extends to blocking appellate and district court nominees as well.

According to The Washington Post:

The current Senate’s record is particularly dim on judicial confirmations. Obama has seen 17 lifetime judges confirmed in the past 16 months, compared to 45 for Bush in the same time frame, 40 for Clinton, and a whopping 82 for George H.W. Bush (including Justice Clarence Thomas). [Washington Post, May 5, 2016]

A comparison of Grassley’s tenure under President Obama to Patrick Leahy’s (D-VT), who served as chairman during the last two years of the Bush administration, is striking.

chart 1

By the end of April 2008, Leahy had worked to confirm 45 judges with only 32 nominations remaining before the Senate. Three of these pending nominees had already cleared the committee and four had already received committee hearings. This means that no action had been taken on just 25 nominations.

During the comparable time period between January 2015 and April of this year, Grassley has only managed to confirm 17 nominees, barely a third the number of Patrick Leahy under George W. Bush.

chart 1

Fifty-two of President Obama’s judicial appointments are still pending. Of these, 12 have cleared the committee, and hearings have been held for an additional 6, leaving 33 with no action having been taken.

In the first 16 months of his tenure as Judiciary Committee chairman, Leahy managed to confirm 58% of George W. Bush’s nominees. On the other hand, Grassley has managed to confirm only 25% of Barack Obama’s.

Under Chuck Grassley, the Judiciary Committee Engaged in Unprecedented Obstruction to Slow Confirmation of Attorney General Loretta Lynch

The day Chuck Grassley was sworn in as chairman, President Obama’s nomination of Loretta Lynch was still pending before the Senate. This was after Republicans demanded she not be confirmed during the lame duck session following the 2014 election with control of the chamber due to switch from Democratic to Republican. Confirming the nation’s top law enforcement official should have been a top priority for the committee. Yet it was another 100 days before Lynch would take her place at the Department of Justice.

In comparison, the seven attorneys general prior to Lynch were all confirmed within one month.

chart 1
 [Politifact.com , April 25, 2015]

Lynch cleared the Judiciary Committee at the end of February, more than a month after Grassley took over the committee, an extraordinary amount of time considering the speed with which the previous seven attorneys general were confirmed. As chairman, Grassley was responsible for the floor vote on this confirmation. As in the case of current Supreme Court nominee Merrick Garland, Grassley and Majority Leader Mitch McConnell (R-KY) allowed pure partisanship to stall a critical appointment.

Grassley Willfully Ignoring Voting Discrimination Months Away from a Major Election

The 2016 election will be the first presidential election in more than 50 years without the full strength of the landmark Voting Rights Act to protect against voting discrimination. Nearly three years after the Supreme Court gutted the law in its 2013 decision in Shelby County v. Holder, Grassley has done nothing to restore the VRA – not even schedule a hearing – despite widespread evidence of voters being disenfranchised across the country as new state laws and local election practices make it harder to register, to vote, and to have those votes counted.

Already this year, thousands of primary voters in Arizona, North Carolina and other places that lost protections due to Shelby County have suffered voting discrimination – a canary in the coalmine for what could happen in the November general election. It is the responsibility of the Judiciary Committee to—at the very least—hold hearings on restoring the protections previously guaranteed by this critical law. Since taking over the committee, Chuck Grassley has not held a single hearing on the topic.

This abdication of responsibilities is yet another example of Grassley failing to do his job as chairman of the Senate Judiciary Committee.

The Do-Nothing Chair

Chuck Grassley’s 16 months at the helm of the Senate Judiciary Committee have been marred by partisan games that have led to one of the least productive sessions for the Judiciary Committee in decades. While attention has focused on Grassley and McConnell’s refusal to take action on President Obama’s nomination of Merrick Garland to the Supreme Court, the totality of the committee’s record demonstrates a failure to do its most basic job.

Judicial confirmations have proceeded at an unprecedentedly slow pace. Grassley’s tenure has also been tarnished by the embarrassingly slow confirmation of Loretta Lynch and its failure to address changes to the Voting Rights Act.

Polling indicates voters across the country are tired of Republican senators on the Judiciary Committee putting partisanship above patriotism and failing to do their jobs. The recent obstruction of Merrick Garland is a symptom of a larger problem that lies at the feet of the committee’s chairman, Chuck Grassley.  

 

Tony Perkins' Odd Garland Conspiracy Theory

The Family Research Council’s Tony Perkins has a new conspiracy theory about the nomination of Merrick Garland to the Supreme Court:

Despite spending his career on the bench and in the Justice Department, Garland doesn’t have much of an ideological paper trail. As many have pointed out, the D.C. Circuit Court deals primarily with regulatory issues, meaning that Judge Garland’s record is virtually free of cases on abortion, marriage, or religious liberty. And that’s no accident. If President Obama wants to keep up this façade of centrism, he needs someone free of social baggage. But, make no mistake. Garland was carefully vetted. This president is too worried about his activist legacy to put it in the hands of a man who values the very Constitution it defies.

According to Perkins, Garland’s 19 years as a judge on the D.C. Circuit Court of Appeals is merely a cover. Perkins’ attack is odd, considering that Chief Justice John Roberts, along with Justices Ruth Bader Ginsburg, Clarence Thomas, and the late Antonin Scalia all served on the D.C. Circuit prior to their nominations to the Supreme Court.

Unsurprisingly, when Roberts was appointed to the court, Perkins had no objection to his previous service on the D.C. Circuit. Instead, a New York Times article referencing Robert’s “limited judicial record” quotes the Family Research Council leader gushing over the nominee. "The president is a man of his word," said Perkins. "He promised to nominate someone along the lines of a Scalia or a Thomas, and that is exactly what he has done."

If anything, Perkins’ questions about Garland’s lack of a paper trail on the issues he particularly cares about should increase his desire for a hearing at which the nominee could answer questions about his philosophy and track record from Republican senators.

If nothing else, this latest argument demonstrates the conservative movement’s inability to find anything in Garland’s record that would suggest he is unqualified to serve on the court.

Defending Roy Moore's Nullification Efforts, Liberty Counsel Shows New Concern For 'Judicial Independence'

Liberty Counsel, a Religious Right legal group that opposes legal equality for LGBT Americans, held a press conference on Wednesday with Alabama Chief Justice Roy Moore, who has been waging a campaign of resistance to the Supreme Court’s June 2015 marriage equality ruling.

Moore and his Liberty Counsel lawyers were calling on the Alabama Judicial Inquiry Commission to dismiss ethical complaints that had been filed against Moore earlier in 2015 after he urged the governor not to comply with a federal court order on marriage equality. Moore, of course, had gotten in trouble before; in 2003 he was removed from his seat on the court when he refused a federal court order to remove a Ten Commandments monument he had installed in the rotunda of the judicial building.

People For the American Way Foundation was one of the groups that filed a complaint against Moore last year. The PFAWF complaint, which you can read here, was filed in early 2015, based on actions he took when he began to insert himself into a federal marriage equality case that was not before his court. He accused federal judges across the country of seeking to impose tyranny upon the nation, and he suggested he might not comply with a potential Supreme Court ruling on marriage equality (which came down a few months later). The complaint spells out the Canons of Judicial Ethics that Moore violated, undermining public confidence in the integrity and impartiality of the judiciary. “Like the United States as a whole, Alabama is governed by the rule of law,” the complaint concludes, noting that “the history of the state shows the violent and tragic consequences when that ideal is not met.” The complaint asked that Moore once again be removed from his office.

In defending Moore on Thursday, Liberty Counsel’s Mat Staver dismissed the complaints as “politically motivated” and warned that they “pose a threat to the doctrine of judicial independence.” Continued Staver, “Judges must be free to exercise their considered judgment without the threat of being attacked by organizations and individuals who wish to misuse the ethical process to further a radical political agenda.”

Staver’s concern for Moore’s judicial independence is touching, if a bit surprising, given that Staver was a cheerleader for Religious Right attacks on Iowa Supreme Court justices who ruled in favor of marriage equality. After a political campaign that was successful in unseating three state justices in 2010 retention elections, Staver crowed, “The justices crossed the line when they played the role of a legislator and abandoned judicial restraint.”

Moore also said at Wednesday’s press conference that this was about “judicial independence.” But when right-wing groups were cranking up the outrage machine against Iowa Supreme Court justices, Moore joined in the condemnation, saying that the conservative outcry against the justices would send “a signal all across the nation.”

Edit Memo: Ongoing Obstruction of President Obama’s Judicial Nominees

To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: April 26, 2016
Re: Ongoing Obstruction of President Obama’s Judicial Nominees

Although national attention has been focused on the ongoing GOP blockade of President Obama’s nominee to the Supreme Court, Merrick Garland, commentators should remember that the Republicans’ campaign of obstruction aimed at President Obama’s judicial nominees 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 17 judges during this congress.

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

chart 1

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, from 40 at the beginning of the year to 74 today, an 85% increase.

chart 2

We see the same thing with judicial emergencies, a formal designation assigned by the Administrative Office of U.S. Courts for vacancies where the caseload per judge is so high that it endangers access to justice. Judicial emergencies have skyrocketed from 12 at the beginning of the new congress to 32 as of April 1 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.

chart 3

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.

###

 

Glenn Beck: Grover Norquist Is A Deep-Cover Spy For The Muslim Brotherhood

On his radio program yesterday, as part of his crusade to get right-wing anti-tax activist Grover Norquist removed from the board of the National Rifle Association for supposedly being a front man for the Muslim Brotherhood, Glenn Beck interviewed the Family Research Council's Jerry Boykin, who is a longtime Norquist critic and anti-Islam activist.

Following the interview, Beck literally begged the NRA members in his audience to vote to remove Norquist from the organization's board, warning that this is the last chance to stop him.

"If this works, his empire really falls apart," Beck said. "If it doesn't, no one will ever touch him and his influence will expand and so will the Muslim Brotherhood, at the highest levels."

Beck then likened Norquist to the protagonists of the television show "The Americans," which is about deep-cover KGB spies in America during the Cold War, which he cited to praise the efforts of Joseph McCarthy.

While McCarthy was "wrong in presentation and he was the wrong messenger," Beck said, history as proven "that what McCarthy was saying was true." 

"If you watch that show 'The Americans,' that happened, that's true,' Beck declared. "Grover Norquist is the modern-day version of that KGB handler, if you will, whether he knows it or not. But the infiltration has happened and he's the doorway to it."

AUL: Stall Supreme Court Nominee To 'Roll Back Roe v. Wade'

Anti-choice groups have made no secret of the fact that they are pressuring Senate Republicans to continue their blockade of President Obama’s Supreme Court nominee, Merrick Garland, in the hope that a Republican-nominated justice will vote to undo Roe v. Wade.

Americans United for Life, the group that shapes the anti-choice movement’s legal strategy, made this argument explicitly in an email today asking members to pressure their senators to keep up the blockade of Garland.

Clarke Forsythe, the group’s acting president, claims in the email that the “only reason abortion advocates are pushing this nomination is to roll back the pro-life gains in courts and legislatures across the country” and promises that “the right Supreme Court” will roll back Roe.

AUL is one of a number of anti-choice groups, including the Susan B. Anthony List, Concerned Women for America, the Family Research Council, Priests for Life, the clinic protest group Pro-Life Action League and David Daleiden’s attorneys at Life Legal Defense Foundation, who have launched a website targeting Judiciary Committee Chairman Chuck Grassley, R-Iowa, and Sen. Rob Portman, R-Ohio, urging them to continue to stall Garland’s nomination.

Forsythe writes, under the subject line “You Have the Power to Help Roll Back Roe v. Wade”:

Dear Friend,

Do you believe Roe v. Wade can be rolled back? At Americans United for Life, we know that the answer is YES … with the right Supreme Court.

For more than 40 years, we pro-life Americans have been working to overturn the destructiveness of Roe v. Wade and Doe v. Bolton, the twin cases that brought incredible devastation to mothers and their unborn children, making both vulnerable to the profiteering of a greedy abortion industry. With the death of Justice Antonin Scalia, the Supreme Court hangs in the balance today, making it vital that NO appointment to the high court occur until after the voters weigh in on Election Day. You can help make that happen.

Please click here to contact your U.S. Senators, telling them to wait until after the election to deal with the opening on the Supreme Court.

All that AUL has been working for since 1971 is at stake in President Obama’s attempt to put a fifth pro-abortion justice on the Supreme Court. Don't let them crush democracy on the abortion issue for another two or three decades. No president has been more firmly committed to the abortion industry than Barack Obama, making his pick for the Supreme Court, Judge Merrick Garland, the wrong choice to be added to the fragile balance in a fractured court.

Please click here to contact your U.S. Senators now.

Judge Garland is President Obama’s pro-abortion pick to tempt some Republicans to act now to fill the vacancy on the Supreme Court. But it’s important to remember that President Obama, Vice President Biden and even Sen. Chuck Schumer, all urged the Senate to hold the line against Supreme Court picks late in a president’s term. The only reason abortion advocates are pushing this nomination is to roll back the pro-life gains in courts and legislatures across the country.

Please contact your Senators today, asking them to let Americans have a voice in deciding the future of the Supreme Court, through their choice of leadership. Click here to contact them now, and please forward this to friends and family so that we all can have a voice in whether all people are welcomed in life and protected in law.

With so many Justices on the Supreme Court nearing retirement, the time is now to let your Senators know that it matters to you who sits on the nation’s Supreme Court.

Thank you for standing with Americans United for Life at this important time. We can make a difference.

Sincerely,

Clarke Forsythe,
Acting President & Senior Counsel
Americans United for Life

A Sleazy or Principled Approach to Judicial Confirmations?

Several days ago, USA Today reported on some comments made by Senator Patrick Leahy about the Senate GOP’s refusal to consider Merrick Garland’s nomination to the Supreme Court.  Judiciary Committee chairman Chuck Grassley has fallen in line behind the order of his boss, Mitch McConnell, and the demands of far-right extremist groups like the Judicial Crisis Network, who make wildly untrue claims about Judge Garland’s record.  GOP senators’ decision to hide behind those outside attacks and refuse to give Judge Garland a chance to defend himself is “sleazy,” Leahy said.  He also urged Grassley to show some independence from partisan interests, as Leahy did when he chaired the Judiciary Committee in parts of George W. Bush’s presidency.

Conservative Ed Whelan challenged Leahy’s positive characterization of his chairmanship on the National Review website in a piece he called “Patrick Leahy (D-Sleaze).”  Whelan criticized then-Chairman Leahy for not holding hearings on a number of Bush’s nominees.  One might think the committee was letting vacancies pile up around the country: that Leahy was fiddling while the American court system burned.  In fact, at this point in Bush’s last two years, the Democratic-controlled Senate had already confirmed 45 circuit and district court nominees, while the current Senate has confirmed a mere 17.  During the entire two years of the 110th Congress, the Senate confirmed 68 judges, a number that Chuck Grassley and Mitch McConnell show no interest in even trying to match.

In fact, it is Grassley and McConnell who are fiddling.  When the current Congress began, there were 40 circuit and district court vacancies, a number that has increased to 74 due to GOP inaction.  (If you include the Court of International Trade, the increase is from 43 to 78.)  In the same period, judicial emergencies have nearly tripled, jumping from 12 to 34 on April 14 (a change in how the Administrative Office of U.S. Courts weights cases went into effect the next day, affecting the number of emergencies and thereby complicating comparisons after that date).  In contrast, vacancies and emergencies went down in 2007-2008 because Democrats processed judicial nominations in a responsible manner.  Leahy also chaired the committee for 17 months in 2001-2002, during which the Democratic-controlled Senate confirmed 100 of Bush’s judicial nominees.  Circuit and district court vacancies went down during that period from 109 to 60.  When it comes to taking seriously their constitutional responsibility to make sure our federal judiciary is sufficiently staffed, the difference between the two parties could hardly be starker.

The contrast is not limited to the confirmation of judicial nominees.  In Bush’s last two years, Sen. Leahy held 22 nominations hearings, including one as late as September 23, 2008 … just a few weeks before the presidential election to replace the term-limited George Bush.  Chairman Grassley has scheduled a confirmation hearing for April 20, the first since January, only the 13th of the current Congress, and he has suggested that he may shut the process down in July.

With 33 circuit and district court nominees in committee, and only five of them having had a hearing (but not until April 20), talk of such an early shutdown is obscene.  Seven of the nominees who have yet to be granted a hearing are circuit court nominees, most of them nominated more than two months ago.  Three of the circuit court nominees already have their “blue slips” from their home state senators.  The fact that this is an election year should not prevent a hearing for these circuit court nominees:  When President Bush nominated Steven Agee to the Fourth Circuit in March of 2008, Sen. Leahy scheduled a hearing seven weeks later, and a committee vote just two weeks after that.

And certainly no one could believably question Leahy’s fairness.  When President Obama took office, Chairman Leahy maintained the same rules and practices he had used with Bush’s nominees.  For instance, as under Bush, he opted to require the “blue slip” approval of both home-state senators before holding a hearing on a nominee, something not in the committee rules but rather a prerogative of the chair.  This led to a number of highly qualified Obama nominees being denied a chance to publicly respond to the often unfair and inaccurate attacks being made against them by GOP senators.  Other times, the Republican senators gave no public reason for their opposition, yet still used Leahy's blue slip  practices  to deny hearings to targeted nominees.  He even allowed Kansas’s GOP senators to change their mind after a hearing and, at their request, did not allow a scheduled committee vote on Tenth Circuit nominee Steve Six to take place.  The committee records are filled with Leahy’s sharp criticism of how qualified nominees were being denied hearings this way, including ones strongly supported by their one Democratic home state senator, including then-Majority Leader Harry Reid.  Nevertheless, he did not change his blue slip practice as he could have done unilaterally.

Whelan also criticizes Senator Leahy as “sleazy” for not getting controversial Fifth Circuit nominee Leslie Southwick confirmed quickly enough and then for opposing his nomination altogether.  As chairman, Sen. Leahy could have simply chosen not to give him a hearing.  In fact, at the confirmation hearing, Sen. Hatch specifically thanked Chairman Leahy for scheduling it over the criticism from “far left groups.”  Giving a nominee an opportunity to address senators’ concerns and defend their record in a public forum is not “sleazy.”

As Sen. Leahy pointed out last week, what’s “sleazy” is the way that the Republican-controlled Senate is mistreating the president’s Supreme Court nominee.  And while well-financed far-right groups are working overtime to keep GOP senators in line, two thirds of Americans are rejecting that position and support a hearing for Chief Judge Garland.  Chairman Grassley would do well to listen to the American people.

PFAW
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