Fair and Just Courts

If Republicans Get Their Wish On The Supreme Court, What Would Trump Or Cruz Do?

By Miranda Blue, Elliot Mincberg and Brian Tashman

Republicans in the Senate, pushed by outside conservative interest groups, are promising to block President Obama’s Supreme Court nominee, Merrick Garland, and arguing that the next president should fill the current vacancy, in the hope that a Republican president will name a conservative ideologue to the bench.

Even if the Senate does confirm Garland, the next president will likely be charged with nominating at least one person to the Supreme Court, and possibly more. Since it looks like either Donald Trump or Ted Cruz will win the Republican presidential nomination, looking at both men’s past statements gives us an idea of the kind of justices that Republicans are hoping for.

Trump and Cruz have both signaled that they would appease their base by nominating justices who would shift the court far to the right. Cruz has lamented that some justices nominated by Republican presidents have strayed from the party line on issues like abortion rights and has vowed that he would appoint “rock-ribbed conservatives” who have a “long paper trail” to demonstrate their “conservative” bona fides.

Trump, dogged by worries among movement conservatives that he would betray them when it comes to Supreme Court nominations, has promised to pick any Supreme Court nominees off a list he develops in partnership with the conservative Heritage Foundation and the Federalist Society.

Both candidates have indicated that they would nominate judges who would vote to overturn Roe v. Wade and Obergefell v. Hodges, the landmark abortion rights and marriage equality decisions. Trump, although he appears not to understand the central legal issue of Roe, has said that the decision “can be changed” through the right judicial nominations since “you know, things are put there and are passed but they can be unpassed with time.” Cruz has warned that unless a true conservative like him picks the next justice, the Supreme Court will soon be “mandating unlimited abortion.” Trump has said that Obergefell was wrongly decided, while Cruz has called the decision “fundamentally illegitimate” and said it can be ignored by the president.

Cruz has made the future of the court a centerpiece of his campaign, while Trump may not actually understand how the Supreme Court works. But both have made clear that as president they would work to shift the court even farther to the right on the issues important to social conservatives and to the corporate Right.

What would a court shaped by a President Trump or a President Cruz look like? Looking at a few of the possible judicial nominees whose names have been dropped by candidates or who have been recommended by the Heritage Foundation, we can get an idea of the kind of ideological conservatives whom Republicans are hoping to put on the bench.

William H. Pryor

One possible Supreme Court nominee whom Trump has specifically praised is William H. Pryor, selected by President George W. Bush to be on the U.S. Court of Appeals for the 11th Circuit. Formerly Alabama’s attorney general, Pryor has a history of extreme right-wing activism, severely criticizing not just women’s right to choose under Roe v. Wade but even the constitutionality of the New Deal.

Pryor has called Roe the “worst abomination in the history of constitutional law.” He has claimed that with the New Deal and other measures, the U.S. has “strayed too far in the expansion of the federal government,” and asserted that it “should not be in the business of public education nor the control of street crime.” As a judge, he has helped uphold a restrictive Georgia voter ID law and joined just one other judge on the 11th Circuit in claiming that “racially disparate effects” should not be enough to prove a violation of Section 2 of the Voting Rights Act, even though the Supreme Court has ruled precisely the opposite.

Pryor came first on a wish list of Supreme Court picks that the Heritage Foundation published shortly after Trump promised to consult them before naming justices.

Diane Sykes

Trump has also repeatedly named Diane Sykes, a Seventh Circuit federal appeals court judge appointed by President George W. Bush, as a potential Supreme Court nominee. Sykes, who previously served on the Wisconsin Supreme Court and a trial court, has also won high praise from the Heritage Foundation and from right-wing Wisconsin Gov. Scott Walker.

In a series of dissents, Sykes has argued in favor of big business and against consumers and discrimination victims, including cases where she tried to limit corporate liability for product defects and overturn a $1 million damages award, to protect a corporation from having to defend against an employee’s claim of discrimination under the Americans with Disabilities Act, and to reverse a $3.5 million bad faith judgment in favor of a Lutheran church against its insurance company.

She showed her anti-reproductive-choice views in providing a lenient sentence to two anti-abortion protesters who had to be forcibly removed from blocking the entrance to a Milwaukee abortion clinic and had previously been arrested 100 times for such offenses; Sykes nevertheless praised them for their “fine character” and expressed “respect” for the “ultimate goals” the blockade “sought to achieve.”

She asserted in dissent that a jury verdict against a criminal defendant should have been upheld even though there was extensive evidence that one of the jurors did not understand English (including a statement from the juror himself), which disqualified him from serving on a jury under Wisconsin law; that a prosecutor should be immune from a claim that he fabricated false evidence that wrongly convicted a man for 17 years; and that a conviction under federal law against someone convicted of domestic violence for possessing firearms should be reversed and that the law itself could well be unconstitutional, in disagreement with all 10 other judges on the court of appeals. She voted in favor of a Wisconsin voter ID law and of a claim by a student group that it should receive state funding and recognition despite its violation of a university rule prohibiting against discrimination based on sexual orientation, an issue on which the Supreme Court reached exactly the opposite conclusion several years later.

Steven Colloton

The third name on Heritage’s list of possible Supreme Court nominees is Judge Steven Colloton, who was appointed by President George W. Bush to the Eighth Circuit Court of Appeals, after previous service for Independent Counsel Kenneth Starr and as a U.S. attorney.

Colloton has been at the forefront of a number of troubling Eighth Circuit rulings, including writing decisions that reversed an $8.1 million award to whistleblowers who helped bring a defective pricing and kickback claim against a large corporation and a nearly $19 million class action judgment against Tyson Foods for violating the federal Fair Labor Standards Act. He also joined a ruling making the Eighth Circuit the only appellate court in the country that found that the Obama administration’s efforts to accommodate religious universities and other religious nonprofit objectors to the provision of contraceptive coverage under the ACA was insufficient, an issue now being considered by the Supreme Court.

Even more troubling, Colloton has dissented from a number of Eighth Circuit rulings that have upheld the rights of employees, consumers and others against big business and government agencies. He dissented from a decision giving African-American shoppers the opportunity to prove discrimination claims against a large department store, and then saw his view prevail by one vote when the full Eighth Circuit reheard the case. In another case, he dissented from a decision finding that a city had violated the Voting Rights Act by improperly diluting the voting strength of Native Americans.

Colloton dissented from rulings that gave individuals a chance to prove claims of use of excessive force and, in one case, that a city’s policy to use police dogs to bite and hold suspects without any warning was unconstitutional. In three separate cases, he dissented from decisions that employees should at least get the chance to prove in court that their employers retaliated against them for filing sex harassment, age discrimination, or other discrimination claims. In two more decisions, he argued in dissent that public employees should not have the opportunity to prove that they were retaliated against for speaking out in violation of their First Amendment rights. Yet he also claimed in a dissent that the First Amendment rights of a candidate for state supreme court justice were violated by a state judicial code of conduct restricting solicitation and other campaign activity in order to promote judicial impartiality and ethical conduct by judges. Even the conservative Roberts Court that decided the Citizens United case has agreed that these concerns justify solicitation restrictions in state supreme court elections.

Mike Lee

Sen. Mike Lee of Utah is Cruz’s closest ally in the Senate and Cruz has said that Lee “would look good” on the Supreme Court. Lee also made the Heritage Foundation’s shortlist of potential Supreme Court justices.

Lee is a fervent “tenther,” someone who believes the 10th Amendment to the Constitution radically restricts the authority of the federal government. As Jeffrey Rosen wrote in the New York Times Magazine in 2010, “Lee offered glimpses of a truly radical vision of the U.S. Constitution, one that sees the document as divinely inspired and views much of what the federal government currently does as unconstitutional.” Among the areas that Lee has suggested it is unconstitutional for the federal government to be engaged in:

  • Social Security,
  • Medicare and Medicaid,
  • child labor laws,
  • food safety,
  • disaster relief,
  • food stamps,
  • the Violence Against Women Act,
  • and, of course, the Affordable Care Act.

Lee has criticized the Supreme Court’s rulings on abortion rights and marriage equality, calling Roe v. Wade an “unconscionable decision” that “defied the spirit and the letter” of the Constitution and responding to Obergefell by introducing a measure that would protect anti-LGBT discrimination.

Ted Cruz

While we don’t expect Cruz to name himself to the Supreme Court, as recently as December Trump was receptive to the idea of extending an olive branch to his main Republican presidential rival in the form of a Supreme Court nomination.

A Justice Cruz would certainly align with Trump’s stated priorities of reversing the Obergefell marriage equality decision and making sure Roe v. Wade is “unpassed.” Cruz, who served as the solicitor general of Texas before his election to the U.S. Senate, has gone so far as to call for the U.S. government to defy Obergefell and to claim that Congress could ban abortion without overturning Roe. Before running for the Senate, Cruz proposed an unconstitutional plan to nullify the Affordable Care Act; last year, he said that a Supreme Court ruling rejecting a clearly meritless challenge to the ACA was the “lawless” work of “rogue justices.” Cruz is known for having politicized the Texas solicitor general’s office, filing dozens of Supreme Court amicus briefs defending conservative positions on hot-button issues such as gun rights and abortion. On the campaign trail, he frequently boasts of his work as an attorney fighting church-state separation.

If Cruz were to become a Supreme Court justice, however, we wonder if he would stick with his idea of subjecting justices to retention elections.

This post has been updated to clarify the circumstances of a case in which Sykes asserted in a dissent that a jury verdict should have been upheld despite evidence that one juror was disqualified from serving.

On Senate Floor, Sen. Reid Slams GOP Senators for Backtracking on Supreme Court Vacancy

In recent weeks, two Republican senators who had previously expressed their support for the Senate giving fair consideration to the president’s Supreme Court nominee, Judge Merrick Garland, have now both backtracked from their initial positions.

In February, Sen. Lisa Murkowski (Alaska) was the first Republican senator to support hearings for the president’s nominee, but did an about-face just days later. Similarly, after Sen. Jerry Moran (Kansas) said in late March “I have my job to do” and that “the process ought to go forward,” he faced a hostile response from extremist right wing groups and obediently reversed his position. The Topeka Capital-Journal reported that after Moran’s initial comments,

The Judicial Crisis Network announced it was putting the finishing touches on an advertising campaign bashing Moran, and the Tea Party Patriots Citizens Fund said it was considering backing a primary challenger.

On the Senate floor today, Minority Leader Harry Reid slammed the GOP senators for reversing course.

“Senator Moran’s backtracking is especially alarming because it appears to be the result of a multi-million dollar campaign urging the Senator to reverse his support for a hearing for Judge Garland,” Reid said. “Senator Moran was for meeting with Merrick Garland and holding confirmation hearings until the Judicial Crisis Network and the Tea Party Patriots threatened him. It will surprise no one to learn that the Koch brothers and their dark money help fund both of these radical organizations.”

The conservative, moneyed backlash came all because Sen. Moran “dared to do his job,” Reid said, asking if the GOP had become “a party dictated by menace and intimidation.”

Sen. Reid wrapped up his remarks by noting that he hopes other GOP senators will not follow suit: “Instead of caving to the Republican leader and the Koch brothers, it’s time for Republican senators to take a stand.” The American people, Reid said, want Republican senators to stop “cowering” and simply do their jobs.

Indeed, polling shows that Americans across the political spectrum want GOP senators to give Judge Garland fair consideration. A national Monmouth University poll last month found that nearly seven in ten Americans want the Senate to hold hearings, including 56 percent of Republicans. Perhaps even more revealing: 62 percent of Republicans believe that GOP leadership’s obstructionist stance is “mainly a political ploy.”

PFAW

Backgrounder: The Judicial Crisis Network: Behind The Group Spreading Misinformation About Supreme Court Nominee Merrick Garland

The Washington, D.C., based Judicial Crisis Network is the most visible outside conservative group pressuring Republican senators to continue their refusal to hold hearings or a vote on the nomination of Judge Merrick Garland to the Supreme Court. The group, which says it has spent about $4 million already on its anti-Garland campaign, has taken the lead in generating misinformation about Garland and about the Court in an attempt to keep the Supreme Court seat open for the next president to fill.

This backgrounder provides a brief history of JCN and exposes the truth behind some of its most misleading claims about Garland’s nomination.

The Judicial Crisis Network Was Called the ‘Judicial Confirmation Network’ during the Bush Administration

  • In 2005, at the start of George W. Bush’s second term in office, a group of conservative activists and funders founded the Judicial Confirmation Network with the goal of pushing through the confirmations of federal judges. [The Wall Street Journal, 5/17/2005; People For the American Way, 3/3/2016]
  • The Judicial Confirmation Network’s original mission, as declared on its website, was to “support the confirmation of highly qualified individuals to the Supreme Court of the United States [and] ensure that the confirmation process for all judicial nominees is fair and that every nominee sent to the full Senate receives an up or down vote." [People For the American Way, 11/14/2008]
  • In 2010, early in the presidency of Barack Obama, the Judicial Confirmation Network changed its name to the Judicial Crisis Network and removed the call for up-or-down votes for judicial nominees from its mission statement. [People For the American Way, 2/11/2010]
  • The Judicial Crisis Network receives most of its funding from the Wellspring Committee, an organization founded by the billionaire Koch brothers that does not have to reveal the identity of its donors. [The Daily Beast, 3/29/2016]
  • JCN consists of just two staff members, according to its website, and is part of a conservative funding network centered around a single family of conservative donors. [Judicial Crisis Network; Media Matters, 4/4/2016]

The Judicial Crisis Network Previously Welcomed A Potential Merrick Garland Nomination

  • While JCN is now trying to paint Merrick Garland as a “liberal extremist,” just a few years ago the group viewed him as the “best scenario” for an Obama Supreme Court nominee who could bring down the “tension and the politics” surrounding the upcoming Supreme Court vacancy. The Washington Post reported in 2010:

"But of those the president could nominate, we could do a lot worse than Merrick Garland," [JCN general counsel Carrie] Severino said. "He's the best scenario we could hope for to bring the tension and the politics in the city down a notch for the summer." [The Washington Post, 4/23/2010]

JCN’s Second-Amendment Attack On Garland Based On ‘Thin To Nonexistent’ Evidence

  • Miguel Estrada, a conservative lawyer and George W. Bush appeals court nominee, told NPR: "The evidence that is being cited for the accusation that Judge Garland has some bias against Second Amendment rights is from thin to nonexistent.” [NPR, 3/27/2016]
  • Even one of the National Rifle Association’s top outside attorneys, Charles J. Cooper, has praised Garland, saying he “fairly and honestly assesses the merits of all sides of an issue.” Cooper wrote in a 1995 letter to the Senate Judiciary Committee that Garland “possesses the qualities of a fine judge” and “would comport himself on the bench with dignity and fairness.” Asked about the letter last month, Cooper said his “high opinion of Judge Garland has not changed — indeed, it has only strengthened — over the course of the 19 years since I wrote these words.” [The Washington Post, 3/28/2016]

President Obama Has A Right To Nominate A Qualified Judge To The Supreme Court

  • Contrary to JCN’s claims, there is no tradition of the president failing to nominate or the Senate failing to consider Supreme Court nominees during election years. According to the nonpartisan SCOTUSblog:

The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years. [SCOTUSblog, 2/13/2016]

  • The nonpartisan Politifact rated as “false” Senate Majority Leader Mitch McConnell’s claim that Republicans are “following a longstanding tradition of not filling vacancies on the Supreme Court in the middle of a presidential election year”:   

It is more than a stretch for McConnell to say it’s a "tradition" for the Senate not to fill a Supreme Court vacancy in an election year.

In the past century, there have been 25 presidential elections. Just four Supreme Court seats opened up in those election years. In three of those instances, the Senate confirmed the president’s nominee, and just once — the only election-year court opening in the past 80 years — did the Senate refuse a nominee.

So the scenario McConnell described has happened exactly once in the past century, in 1968, and that decision did not actually leave a vacancy on the court for any period of time.

"This is entirely a matter of circumstance," Sarah Binder, a political scientist at George Washington University, previously told PolitiFact. It’s "certainly not a norm or tradition by presidents refraining from nominating in a presidential election year, or by senators refusing to consider such nominations." [Politifact, 3/22/2016]

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Supreme Court Rules that Everyone Deserves Representation

Justice Ginsburg writes for a six-justice majority, rejecting an assertion that states must count only eligible voters when drawing legislative districts.
PFAW Foundation

Supreme Court Obstruction is Continuation of GOP’s Disrespect for First African American President

This piece originally appeared on the Huffington Post.

From the right-wing obsession with President Obama’s birth certificate to a GOP Representative interrupting one of his speeches by yelling “you lie,” our nation’s firstAfrican American president has endured an unprecedented level of disrespect throughout his time in office. The current blockade against considering President Obama’s nominee to the Supreme Court is the latest example of this trend, and it stems from the same racist efforts to paint his presidency as illegitimate.

The Republican anti-Obama crusade began on day one, with GOP leaders meeting on the evening of his inauguration to strategize about how to block the president’s agenda at every turn. That campaign has only grown uglier since then, with many Republicans taking every opportunity to demean President Obama, paint him as a suspicious outsider, and accuse him of overstepping his authority. It is a flawed strategy and a failed campaign that has run its course.

It was disrespectful when Texas Representative Randy Weber, for example, called the president a “socialistic dictator” and asked whether he is “intent on bringing America down.” It was a show of disdain for 2016 GOP presidential candidate Mike Huckabee to tell Pat Robertson that “deep inside of” President Obama “there is a sense in which he doesn’t want America to be [a] superpower.” It was with absolute contempt that Republican frontrunner Donald Trump, who has long questioned President Obama’s birthplace, suggested that his birth certificate might say “he is a Muslim” and floated the idea that maybe the president “doesn’t want to get rid of the problem” of terrorism. It was an absence of professional courtesy when former presidential candidate Rick Santorum failed to correct or disagree with an audience member who called President Obama an “avowed Muslim” with “no legal right to be calling himself president.” While President Obama is not a Muslim, I am certain there is no place in the position description that says a Muslim American, if elected, could not serve in this country’s highest office.

I cannot recall any other president facing this kind of treatment. The current obstruction campaign blocking the president’s Supreme Court nominee may not feature the same brand of name-calling and wild accusations as previous anti-Obama campaigns. However, let’s not be naïve at their attempt to use language that may appear more palatable; the grounding is still in the same racist assumptions that his presidency, elected not only once but twice, is somehow not valid.It causes me to wonder what they truly think of democracy and Americans who exercise their right to vote.

A Senate majority has never refused to consider a president’s nominee to the Supreme Court. It is an unprecedented rebuke of the president’s constitutionally-guaranteed authority to nominate justices. Refusing to meet with, hold hearings on, or give a simple up-or-down vote to Judge Merrick Garland, President Obama’s exceptionally qualified nominee, is an insult to Judge Garland, the president,and the American people. But the truth is that Republican leadership was already bent on categorically rejecting any nominee he put forward no matter how qualified they were. North Carolina Representative G.K. Butterfield, who leads the Congressional Black Caucus, was right when he told the New York Times that “if this was any other president who was not African-American, it would not have been handled this way.”

The Constitution makes clear that it is President Obama’s right, and his duty, to make a nomination, and that it is the Senate’s job to provide advice and consent. That GOP senators are ignoring their constitutional responsibilities and refusing to consider President Obama’s nominee for the Supreme Court isn’t just politics as usual. It’s one of the most outrageous examples yet of the Republican Party treating the president, a man of color, an American of African ancestry, a Black man, like he didn’t really earn that job. Not only did he earn it, but he is doing it quite well – and that is why this obstructionist Senate should follow his lead and stop the obstruction, stop the racially motivated disrespect, and do their job.

PFAW

Heritage List Gives Glimpse Of Far-Right Justices Sought By Trump And Cruz

One of the conservative establishment’s greatest fears about a Donald Trump presidency has been that he wouldn’t pick movement ideologues to sit on the Supreme Court. Trump attempted to put that concern to rest last week when he announced that he was working with the conservative behemoth the Heritage Foundation to shape a list of 10 possible Supreme Court picks from whom he would choose nominees if he were to become president. (Whether he would actually keep that promise, however, is an open question.)

Meanwhile, Trump’s main GOP presidential rival, Sen. Ted Cruz of Texas, has promised to make nominating ultra-conservative justices a “priority” of his presidency. He has even made a point of criticizing past Republican presidents for appointing insufficiently conservative jurists.

Trump hasn’t released his list of candidates, but today the Heritage Foundation published a “non-exclusive” list of eight people that it said “illustrates the kind of highly qualified, principled individuals the new president should consider” for the high court — and who, it’s safe to assume, represent the kind of judges the conservative movement would pressure Trump and Cruz to pick for the federal courts.

Two of Heritage’s picks, federal appeals court judges William Pryor and Diane Sykes, have been mentioned repeatedly by Trump on the campaign trail. The name of another, Sen. Mike Lee of Utah, has been brought up by Cruz, who even picked up the Utah senator’s endorsement.

In a profile of Sykes last month, ThinkProgress’ Ian Millhiser wrote:

… Sykes, who currently sits on the Seventh Circuit, backed a voter ID law . She also wrote a decision expanding religious objectors’ ability to limit their employees’ access to birth control coverage that SCOTUSBlog’s Lyle Denniston described as “ the broadest ruling so far by a federal appeals court barring enforcement of the birth-control mandate in the new federal health care law.”

Millhiser noted that Sykes also ruled “that anti-gay groups have a constitutional right to continue receiving government subsidies even if they engage in discrimination,” another troubling indication that she could support conservative groups’ attempts to justify discrimination.

Pryor, a former Alabama attorney general, also has a history of right-wing activism. Pryor has called Roe v. Wade the “ worst abomination in the history of constitutional law” and said that it created “ a constitutional right to murder an unborn child.” He has claimed that with “the New Deal” and other measures, the U.S. has “strayed too far in the expansion of the federal government,” and asserted that the federal government “should not be in the business of public education nor the control of street crime .” Like Sykes, Pryor has upheld a voter ID law.

Lee, a Tea Party favorite who has been Cruz’s strongest ally in the Senate, has a legal philosophy that might be even more troubling, dismissing large swaths of the federal government’s work as unconstitutional. As Peter summarized recently:

Here are a few things that Sen. Mike Lee believes are unconstitutional for the federal government to be engaged in:

Peter noted that Lee “dismisses Supreme Court rulings upholding a woman’s right to abortion” and has “called the court’s marriage equality ruling a ‘breathtaking presumption of power.’”

Also on Heritage’s list is Brett Kavanaugh, a George W. Bush appointee to the Court of Appeals for the D.C. Circuit, where he is a colleague of President Obama’s Supreme Court nominee, Merrick Garland. Kavanaugh, who before his career as a judge worked on the notorious “Starr Report” about President Clinton, is just one example of Bush’s effort to put ideologically motivated conservatives on the federal bench.

Kavanaugh’s rulings on the D.C. Circuit include striking down important EPA air pollution rules in an opinion that one columnist called “60 pages of legal sophistry, procedural hair-splitting and scientific conjecture.” PFAW summarized the issue at hand:

Last summer, two Bush-nominated judges on the D.C. Circuit issued a much-criticized ruling in EME Homer City Generation, striking down important new EPA rules on air pollution that crosses state lines. In 2011, the EPA issued new regulations to limit the levels of sulfur dioxide and nitrous oxide emitted by coal-fired power plants and crossing state lines. Based on the administrative record and its expertise on environmental health, the agency concluded that the new rules would prevent 34,000 premature deaths, 15,000 heart attacks, and 400,000 cases of asthma. As if that weren’t important enough, the rules would also save $280 billion a year in healthcare costs.

In 2011, Kavanaugh dissented from a ruling that found ExxonMobil was not immune from being sued by Indonesians who said they had been “beaten, burned, shocked with cattle prods, kicked, and subjected to other forms of brutality and cruelty" by the company’s security forces. Dissenting from a ruling upholding the Affordable Care Act the same year, Kavanaugh suggested that a president who thinks the ACA is unconstitutional could simply decline to enforce it.

Also on Heritage’s list are Paul Clement, who served as solicitor general in the Bush administration and is just 49 years old, and federal appeals court judges Steven Colloton and Raymond Gruender. Another Heritage suggestion is Texas Supreme Court Justice Don Willett, who was nominated by then-Gov. Rick Perry after helping Bush run his faith-based initiatives in Texas and in the White House.

Chuck Grassley On Judicial Confirmations: 'Let's Do Our Jobs.' (But That Was 2005)

While discussing the confirmation of judges, Sen. Chuck Grassley, R-Iowa, had a message for his fellow senators: “Let’s do our jobs.” But that was 2005.

Eleven years ago, with a Republican in the White House, Grassley was emphatic that the Senate act quickly on the president’s judicial nominations, telling colleagues that slowing down the confirmation process was “like being a bully on the schoolyard playground.”

According to Grassley in 2005, for the Senate to do its job, George W. Bush’s nominees would have to receive up-or-down votes. Today, apparently, doing his job as chairman of the Judiciary Committee does not even include holding hearings on President Obama’s nominee to the Supreme Court, Merrick Garland.

One wonders what 2005 Chuck Grassley would say to his 2016 self. In April of that year, during an appearance on MSNBC’s “Hardball,” Grassley told host Chris Matthews that “every nominee should have an opportunity to have an up-or-down vote.”

That same month in a statement on his website titled “Talking Judges to Death,” the Iowa senator wrote, “It’s time to make sure all judges receive a fair vote on the Senate floor.”

Grassley continued to make his case during a May speech on the Senate floor, telling his colleagues, “It’s high time to make sure all judges receive a fair up-or-down vote on the Senate floor.”

In the same speech, he complained that he and his colleagues were being “denied an opportunity to carry out their constitutional responsibility,” telling the Senate, “That is simply not right. The Constitution demands an up-or-down vote. Fairness demands an up-or-down vote.”

Grassley charged that Democrats wanted “to grind the judicial process to a halt for appellate court nominees so they can fill the bench with individuals who have been rubberstamped by leftwing extreme groups.”

In 2005 Democrats opposed a small number of nominees based on their extreme ideologies. In contrast, Grassley and today’s Republicans have made it clear that they will oppose anyone nominated by Obama, no matter their qualifications or ideology, essentially seeking to undo the 2012 presidential election.

Today the only rationale for Grassley’s own intransigence is fear of the far right and their demand that Republicans obstruct the president’s Supreme Court appointment.

Grassley’s advocacy for the Senate doing its job did not stop in the spring of 2005. In September of that year, after President Bush appointed John Roberts to the Supreme Court, Grassley cited Alexander Hamilton in claiming that “the purpose of our activities here of confirming people for the courts” was “to make sure that people who were not qualified did not get on the courts. In other words, only qualified people get appointed to the courts and that political hacks do not get appointed to the courts.”

He noted that “maybe there is some historian around who will say Grassley has it all wrong.”

In that same speech he stated that the president “had a mandate to appoint whom he wanted appointed, as long as they were not political hacks and as long as they were qualified” and that the president had “primacy in the appointments to the Supreme Court.”

In January 2006, with the appointment of Samuel Alito to the Supreme Court, Grassley put out a press release that once again cited Alexander Hamilton:

The Constitution provides that the President nominates a Supreme Court Justice, and the Senate provides its advice and consent, with an up or down vote.  In Federalist 66, Alexander Hamilton wrote, “it will be the office of the President to nominate, and, with the advice and consent of the Senate, to appoint.  There will, of course, be no exertion of choice on the part of the Senate.  They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose – they can only ratify or reject the choice he may have made.”

Citations of Hamilton, calls for the Senate to do its job, discussions of “constitutional responsibility” are now a faded memory.

If Chuck Grassley did recall his words from that year, perhaps he would remember his statement that “in my town meetings across Iowa, I hear from people all the time, why aren’t the judges being confirmed?” He went on to claim, “I hear from Iowans all the time that they want to see these nominees treated in a fair manner, and they want to see an up-or-down vote.”

Home for the Senate’s Easter recess, he is now facing these questions from constituents like Randy Waagmeester, who told his senator at a town hall, “It’s not fair for this man not to get a hearing.”

Another of Grassley’s constituents, Glenda Schrick, told her senator, “There’s nothing in the U.S. Constitution that says we can’t have a hearing and then vote yea or nay, so that we don’t constantly have it thrown at us as Republicans that all we say is ‘no.’”

However, these interactions will be few for the Iowa senator. According to the Des Moines Register “only three of his 19 planned events are publicly announced town hall meetings — and they’re happening in the three most heavily Republican counties in the state in terms of voter registration.”

Instead of running from these challenges, Grassley should simply follow his own admonition from more than a decade ago, come back to Washington, tell his Republican colleagues “let’s do our jobs” and get to work confirming Merrick Garland to the Supreme Court.

Trump Turns To Far-Right Heritage Foundation For Future Supreme Court Nominees

While many Americans grimly wonder which would be worse for the country, President Donald Trump or President Ted Cruz, one issue isn’t providing much help: Both candidates are making it clear that their potential nominations to the U.S. Supreme Court would be terrible.

We reported yesterday on Cruz’s suggestions that he would nominate his best friend in the Senate, Utah’s Mike Lee. Under his extreme views of the Constitution, much of what the federal government does is unconstitutional, including Social Security and Medicare.

What about Trump? Last year, Trump called Clarence Thomas his favorite justice. This year, he declared Justice Antonin Scalia’s death a “massive setback” for the conservative movement and joined right-wing conspiracy theorists in raising suspicions that Scalia had been murdered.

Last month Trump tossed out the names of two right-wing appeals court judges, William Pryor and Diane Sykes, as two potential nominees from a Trump administration. Pryor calls Roe v. Wade and Miranda v. Arizona, two landmark cases protecting the rights of women and criminal defendants, respectively, “the worst examples of judicial activism.” Sykes, like Pryor, has upheld damaging voter ID laws. She also argued that anti-gay groups have a constitutional right to receive government subsidies regardless of whether they engage in discrimination.

Now, Trump is pledging to release a list of seven to 10 potential justices from which he commits to choosing a nominee – and that list is being put together with help from the far-right Heritage Foundation. Heritage is a massively funded right-wing powerhouse that is home to, among others, anti-marriage-equality activist Ryan Anderson, who is urging social conservatives to resist the Supreme Court’s marriage equality ruling.

Heritage and its more explicitly political arm Heritage Action have demanded even greater obstructionism from congressional Republicans. Even before Scalia’s death, the group had urged the GOP to refuse to confirm any executive branch or judicial nominations except for appointments dealing with national security. Heritage senior fellow Hans von Spakovsky has even demanded that Scalia be allowed to “vote” – even though he is dead – on a case that right-wing activists were hoping the court would use to destroy public sector unions.

Trump met in Washington yesterday with congressional Republicans, and at a press conference he pushed back against accusations by Cruz that he couldn’t be counted on to name a conservative to the court. “Some people say maybe I’ll appoint a liberal judge,” he said. “I won’t.” He promised that his nominee would be “pro-life” and “conservative.”

Trump also explicitly warned (or taunted, depending on your view) Republicans opposed to his nomination that if they support a third-party candidate against him, they will allow a Democrat to name Supreme Court justices who “will never allow this country to be the same.”

Among the Republicans huddling with Trump? Heritage Foundation president and former Sen. Jim DeMint.

NH Voters Call on Sen. Ayotte to End Supreme Court Obstruction

Nashua, NH – Outside of Sen. Kelly Ayotte’s district office, Granite Staters joined to demonstrate against Sen. Kelly Ayotte for her obstruction aimed at President Obama’s Supreme Court nominee, Judge Merrick Garland. Participants called on Sen. Ayotte to give fair consideration – timely hearings and an up-or-down vote – to Judge Garland.

“Sen. Ayotte has a constitutional responsibility to give fair consideration to judicial nominations,” said Lindsay Jakows, New Hampshire Campaign Organizer with People For the American Way, “It’s time for her to do her job and stop ignoring the majority of Granite Staters who want to see the Supreme Court vacancy filled this year. She should put principle over partisanship instead of trying to hold a Supreme Court seat open for President Trump or President Cruz.”

Most New Hampshire voters, including 60% of independent voters in New Hampshire, support filling the Supreme Court vacancy this year, yet Sen. Ayotte continues to stand firm against giving fair consideration to Judge Garland.

Pictures from today’s events:

   

People For the American Way is a progressive advocacy organization founded to fight right-wing extremism and defend constitutional values including free expression, religious liberty, equal justice under the law, and the right to meaningfully participate in our democracy.

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A Baseless Attack Against Garland On ACA Cases

When you have a Supreme Court nominee as well respected across the political and ideological spectrum as Merrick Garland, it’s no wonder that far right groups’ attacks against him make so little sense. Their “he hates the Second Amendment” attack last week was so illogical that it just made them look foolish. A new attack relating to religious liberty and the Affordable Care Act is equally baseless.

As with the Second Amendment example, the new attack is not based at all on any substantive ruling by Judge Merrick – not a written dissent, nor a majority opinion he authored or joined, nor a concurrence he penned. Instead, his critics are reading into his votes on whether certain three-panel decisions should be reconsidered by the entire D.C. Circuit in what is called an en banc review.

The first involved a D.C. Circuit panel decision called Priests For Life v. HHS, which is currently one of the many cases consolidated into Zubik v. Burwell, which will be argued before the Supreme Court later this week. The case concerns the ability of religiously affiliated nonprofits to opt out of the requirement to provide their employees certain contraception health insurance coverage without a co-pay. The law allows an accommodation so the employees can get the coverage without their employers having to contract, arrange, or pay for it. Instead, the employers simply tell the insurer or the federal government of their objection, at which point the insurer must offer the coverage separately to employees who want it. But some religious nonprofits assert that even this accommodation violates their religious liberty. A unanimous three-judge panel on the D.C. Circuit (which did not include Garland) upheld the law as not violating the Religious Freedom Restoration Act (RFRA). Hardly an outlier, the same legal conclusion has been reached by the 2nd Circuit, the 3rd Circuit, the 5th Circuit, the 6th Circuit, the 7th Circuit, the 10th Circuit, and the 11th Circuit. Last fall, the 8th Circuit reached the opposite conclusion, creating a circuit split that will be resolved by the Supreme Court.

In any event, Life Site News slams Judge Garland for voting against having the entire D.C. Circuit rehear the Priests for Life case. A vote for or against en banc review, absent an accompanying opinion, does not necessarily tell you anything about why the judge voted that way. In fact, several of the judges wrote or joined lengthy opinions explaining why they were for or against an en banc review. Chief Judge Garland joined none of them. Neither did George W. Bush nominee Thomas Griffith or Clinton nominee David Tatel, both of whom voted along with Chief Judge Garland not to rehear the case. The majority of the court voted against en banc review, so we don’t know how Garland would have voted on the merits of the case.

There could be any number of reasons not to want to review a panel decision; perhaps you agree with it; perhaps you think the issue is not important enough to merit that unusual step; perhaps you think a different case would be a better vehicle for addressing the legal issues; perhaps you’re concerned about the court’s workload; perhaps you know that numerous other circuits are addressing the exact same question and that  regardless of whether your court reconsiders the panel decision — the issue will be resolved by the Supreme Court, so that an en banc review would be a pointless waste of time and resources.

Indeed, that last scenario is what happened in the second ACA case that Life Site News attacks Judge Garland for. In that case, Halbig v. Burwell, a D.C. Circuit panel struck down the ACA’s subsidies structure in response to a legal attack widely recognized as purely politically motivated and legally weak (to be charitable) effort to destroy the ACA. In September 2014, the full D.C. Circuit voted without noted dissent to rehear the case, with no judge writing separately to explain their reasoning. The parties submitted detailed briefs and replies, in preparation for scheduled oral arguments in December. But then the Supreme Court accepted a case from the 4th Circuit raising the same issue, King v. Burwell, leading the D.C. Circuit to cancel its own planned oral arguments as a waste of time. So we don’t know how Chief Judge Garland would have voted on the merits of the case. (The conservative Roberts Court rejected the challenge in a 6-3 vote.)

Perhaps Chief Judge Garland, seeing how much effort went into an ultimately unnecessary en banc proceeding in the ACA subsidies case, didn’t want to repeat that scenario in the ACA contraception coverage case, knowing that the Supreme Court would likely be the ultimate arbiter of the legal issue.

The point is, we don’t know. We can’t know. Chief Judge Garland’s votes on whether to reconsider panel opinions simply don’t tell us anything about his views on the merits of the case, unless he writes or joins an opinion explaining his reasoning, which he did not do in these cases.

A Baseless Attack Against Garland on ACA Cases

The new attacks are not based on anything Chief Judge Garland has actually written or addressed on the merits.
PFAW

What Would It Look Like If Ted Cruz Put His Pal Mike Lee on the Supreme Court?

Back in December, Kyle reported that Glenn Beck, who believes Ted Cruz is anointed by God to be president, suggested that a President Cruz should nominate Utah Sen. Mike Lee to the Supreme Court. This weekend, while campaigning in Utah, Cruz himself floated the prospect, saying Lee “would look good” on the court.

“Good” is not really the right word. “Terrifying” is more like it.

Lee, who calls Cruz his “best friend at work,” has perhaps the most extreme view of the Constitution of anyone in the Senate. Lee is a fervent “tenther,” someone who believes the Tenth Amendment to the Constitution radically restricts the authority of the federal government. As Jeffrey Rosen wrote in the New York Times Magazine in 2010, “Lee offered glimpses of a truly radical vision of the U.S. Constitution, one that sees the document as divinely inspired and views much of what the federal government currently does as unconstitutional.”

Lee dismisses Supreme Court rulings upholding a women’s right to abortion. He called the court’s marriage equality ruling a “breathtaking presumption of power.” People For the American Way noted in a 2010 report that Lee “has denounced as ‘domestic enemies’ those who disagree with his radically limited view” of the Constitution.

Here are a few things that Sen. Mike Lee believes are unconstitutional for the federal government to be engaged in:

This list helps explain why right-wing law professor Jonathan Adler, a force behind the King v. Burwell challenge to the Affordable Care Act, has also suggested that the next Republican president should put Lee on the court.

For an ardent self-described constitutionalist, Lee has a lot of problems with the Constitution as amended over the years and as interpreted by the Supreme Court. Lee published a book last year called “Our Lost Constitution: The Willful Subversion of America's Founding Document.” He believes the 16th amendment, allowing the federal government to collect income taxes, should be repealed, leaving it to the states to determine how they would tax their own citizens to pay for the extremely limited federal government that would fit his vision of the constitution. He also thinks the 17th Amendment was a mistake and thinks the power to elect U.S. senators should be taken away from voters and returned to state legislatures. He also wants to "clarify" the 14th Amendment through legislation to deny citizenship to children born in the U.S. to parents who are not citizens or legal residents and wants to amend the Constitution to require a balanced federal budget and to impose congressional term limits. He supports a campaign by some right-wing activists for state legislators to convene an “Article V” convention for the purpose of amending the Constitution.

As a Senate candidate he said he would like to abolish the federal Departments of Energy and Education, dismantle the Department of Housing and Urban Development, and phase out Social Security altogether. As a senator, Lee orchestrated shutting down the government in an effort to defund Obamacare, even though Cruz took most of the blame for it.

Cruz and Lee share a sort of gleeful pride in playing the outsiders who have contempt for “the establishment.” Lee is reportedly the guy who suggested that Cruz run for Senate; he was among those who endorsed Cruz in his long-shot primary for his Senate seat. This month, he became the first of Cruz’s Senate colleagues to endorse his presidential run.

Meet President Obama's Supreme Court Nominee Merrick Garland

On March 16, President Obama nominated Chief Judge Merrick Garland of the D.C. Circuit Court of Appeals to fill the vacant seat on the US Supreme Court. His background and record, and the bipartisan acclaim he has previously received, make clear that he is an extremely well qualified jurist who would ably serve as a Supreme Court justice, and that there is absolutely no basis but pure politics for the refusal of most Republican senators to even consider his nomination.

Garland, 63, was born in Chicago. His father ran a small advertising firm out of the family’s home and his mother coordinated volunteer services for Chicago’s Council for Jewish Elderly. His grandparents were refugees from anti-semitism in Russia. After graduating with honors from Harvard College and Law School, Garland went on to clerk for appellate court judge Henry Friendly and noted Supreme Court Justice William Brennan. He then worked briefly as special assistant to Attorney General Benjamin Civiletti during the Carter Administration and then as an associate and a partner at the Washington law firm of Arnold & Porter, where he specialized in corporate litigation. In 1989 he became an Assistant US Attorney in Washington and, after a brief return to Arnold & Porter, joined the Clinton Administration as deputy assistant attorney general in the criminal division of the Justice Department and then as principal assistant deputy attorney general. In that capacity, he supervised the investigation and prosecution of a number of key domestic terrorism cases, including the Oklahoma City bombing and the Unabomber case.

Garland became a judge on the DC Circuit Court of Appeals in 1997, winning bipartisan praise from lawyers, judges, and senators ranging from Edward Kennedy to Orrin Hatch. During most of the 19 years he has been on the bench, Garland has also tutored poor children at a DC elementary school. He became chief judge in 2013.

Garland has continued to win bipartisan and both liberal and conservative praise during his service on the court of appeals. Most of his opinions are for unanimous three-judge panels, bringing together both conservative and liberal judges. As now-Chief Justice Roberts has commented, however, when Judge Garland disagrees with you as a judge, “you know you’re in a difficult area.” (In the particular case Roberts was referring to, Garland dissented from a ruling by Roberts that limited the ability of whistleblowers to bring lawsuits to vindicate fraud against the government.) Garland is a clear and careful writer, who is appropriately deferential to Congressional statutes, agency rules, and past precedent. Although he has a reputation for tending to favor the government in criminal law and terrorism cases, he has not hesitated to rule against the government where it oversteps its authority in such matters. For example, he ruled in one case (In re Sealed Case) that a lower court made a mistake and had to order the prosecution to look for and disclose to a defendant any evidence that would tend to show innocence. In another (Parhart v Gates), he ruled that the Combatant Status Review tribunal had improperly relied on hearsay evidence to indefinitely detain someone as an enemy combatant. He has a generally positive record in such areas as labor law, environmental law, and individual civil rights. Overall, Garland has more federal court experience than any Supreme Court nominee in history.

Despite Judge Garland’s stellar record, Republican leadership has continued to insist that his nomination should not be considered, reviewed, and voted on at all by the Senate, with Republican Majority Leader McConnell refusing even to meet with Judge Garland. Even conservative columnist George Will has recognized that the only reason for this obstuctionist blockade is political, with the hope that a Republican president elected in November (Donald Trump?) will be able to fill the vacancy. Despite claims to the contrary, Democrats have not stooped to such political gamesmanship, as is best shown by their decision to confirm Reagan Supreme Court nominee Anthony Kennedy when they controlled the Senate in presidential election year 1988. No, Judge Garland won’t be the far-right conservative that Republicans hope to get from a President Trump or Cruz, but that is simply no reason for Republican senators to refuse to do their job and at least act on the nomination. Cracks have already begun to appear in the Republican blockade, with Sen. Mark Kirk stating that Garland should receive a hearing and a vote. With continued pressure from Americans across the country, Judge Garland will hopefully receive the hearing and the vote that the Senate owes to him, the Supreme Court, the Constitution, and the American people.

PFAW

PFAW Hosts Telebriefing on the President's Supreme Court Nominee

One day after President Obama nominated Judge Merrick Garland to serve on the Supreme Court, PFAW held a telebriefing for members about the extraordinarily qualified nominee and the GOP’s unprecedented obstruction campaign aimed at bringing the process of filling the vacancy to a halt.

PFAW’s Michael Keegan, Marge Baker, Elliot Mincberg, Drew Courtney, and Brian Tashman discussed the Republican blockade, Garland’s record as a judge, and what’s at stake in the confirmation fight for our constitutional rights and liberties.

“This nominee, when confirmed, will shift the balance” of a Supreme Court that has been one of the “most conservative Courts in decades,” Baker said. PFAW released a report last year, “Judgment Day 2016,” reviewing many of the 5-4 decisions that have had an enormous impact on the daily lives of Americans and highlighting how the composition of the Court is a key issue in 2016 and beyond.

Speakers outlined why it’s critical that Senate Republicans do their jobs and give Judge Garland the fair consideration that he deserves. Tashman noted that the Right’s encouragement of the GOP obstruction is nothing more than an “effort to delegitimize the president and play politics with the Court.”

You can listen to the full telebriefing here:

PFAW

A Circuit Court Nominee for Mitch McConnell to Consider

President Obama continues to work to fill our nation's judicial vacancies, this time with a Sixth Circuit nominee from Kentucky.
PFAW

Statement on Sen. Kelly Ayotte’s Continued Obstruction

In response to Sen. Kelly Ayotte’s willingness to meet with Supreme Court nominee Merrick Garland, but only “to explain [her] position,” not to give real consideration to Garland, Lindsay Jakows, New Hampshire Campaign Organizer with People For the American Way, made the following statement:

“The Constitution calls on Senators to give fair consideration to a President’s Supreme Court nominee, meaning a hearing and a vote. Ayotte’s announcement that she’ll meet with Judge Garland to ‘explain [her] position’ falls far short of her doing her job and following the priorities of Granite Staters. Garland deserves a fair consideration, and Senator Ayotte should call on her party leadership to make sure that’s what he receives.”

According to recent polling, 59% of New Hampshire voters – and 60% of independent voters in New Hampshire – support filling the Supreme Court vacancy this year.

People For the American Way is a progressive advocacy organization founded to fight right-wing extremism and defend constitutional values including free expression, religious liberty, equal justice under the law, and the right to meaningfully participate in our democracy.

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Statement from Dolores Huerta on the Nomination of Merrick Garland

Civil rights leader and People For the American Way board member Dolores Huerta today applauded the nomination of Merrick Garland to the Supreme Court.

“I’m proud to support the confirmation of Merrick Garland to the Supreme Court, and I’m glad that President Obama decided to move the process forward even in the face of Republican threats to ignore the Constitution and block the nominee. It’s appalling that Republicans would refuse to give fair consideration to someone as qualified and committed to the Constitution as Merrick Garland.

“Latinos have a huge amount at stake at the Supreme Court. Whether it’s the fate of undocumented immigrants, or a woman’s right to choose, or the ability of workers to demand fair treatment in the workplace, the issues that matter to our community are going to be decided by the Supreme Court. It’s critical that we have someone who understands the impact that the Court’s rulings have in the real world, and it’s critical that we stand up to Republicans who want to play politics with the Constitution.”

People For the American Way is a progressive advocacy organization founded to fight right-wing extremism and defend constitutional values including free expression, religious liberty, equal justice under the law, and the right to meaningfully participate in our democracy.

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PFAW Applauds Nomination of Garland to Supreme Court

People For the American Way today applauded the nomination of Merrick Garland to the Supreme Court to fill the vacancy created by the death of Justice Antonin Scalia.

“Judge Garland is a brilliant choice, and President Obama deserves credit for moving this process forward despite the GOP’s threats of obstruction,” said Marge Baker, Executive Vice President at People For the American Way. “Garland has demonstrated a remarkable intellect and a deep commitment to the Constitution and the rule of law. It’s unfathomable that Senate Republicans would refuse to give fair consideration to a nominee as qualified as Judge Garland. The Constitution makes clear that the Senate has the responsibility to give fair hearings and a timely vote to whoever the president nominates to the Supreme Court. Republicans need to do their job and treat this nominee with the basic respect he deserves.”

People For the American Way is a progressive advocacy organization founded to fight right-wing extremism and defend constitutional values including free expression, religious liberty, equal justice under the law, and the right to meaningfully participate in our democracy.

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GOP's Newest Defense of SCOTUS Obstruction Falls Apart

The GOP's talking points keep changing as they are refuted, and the latest ones are really easy to refute.
PFAW

Some People Are Still Doing Their Job on Judges

Senate Republicans need to do their job and give 3rd Circuit nominee Rebecca Haywood timely and fair consideration.
PFAW
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