Fair and Just Courts

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

More Evidence Grassley And McConnell Only Care About The Far Right

A new NBC News/Wall Street Journal Poll released Tuesday led to a slew of headlines reflecting the fact that the majority of Americans want the Senate to do its job and begin working to confirm President Obama’s Supreme Court nominee, Merrick Garland.

“Democrats are winning the Supreme Court fight over Merrick Garland. Big time,” announced the Washington Post

By a 22-point margin (52-30) voters would like to see “the Senate vote on [Justice Scalia's] replacement” this year. When the question was first asked in February, this margin was only a single point (43-42).

Yet Republicans and conservative voters continue to isolate themselves from the rest of the electorate with their intransigence on taking any action on Garland’s nomination.

This is the conundrum for Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, and Majority Leader Mitch McConnell (R-KY). They can mollify the radical base of their party or they can do their jobs, consistent with the will of the people. Thus far their choice has been clear.

Grassley once again swore fealty to the radical right on a conference call with the anti-choice organization Susan B. Anthony List on Monday night, promising them “we aren’t going to have a hearing.”

Right now, despite the polling, Republican strategists believe their elected leaders' intransigence serves their own electoral benefit. Josh Holmes, who ran McConnell’s 2014 reelection campaign told the Wall Street Journal, “Any time you are looking at an electorate where you want to ensure the base is motivated to support a candidate, an issue like this helps.” He continued, “by almost any measure that we’ve seen thus far, the voters who fall into that swing category that determine an election just aren’t that interested in the Supreme Court fight.”

Holmes and many Republicans are being misled by the data. Voters want a functional government and elect senators to do a job. They are rightfully repulsed when it isn’t done.

Voters aren’t thinking about the confirmation of Merrick Garland as a fight between liberal and conservative policy outcomes. Instead it is about which party is causing dysfunction in Washington. Republicans are proudly raising their hands to take credit for the chaos, fulfilling the wishes of their base.

However, with polling data trending against them, McConnell and Grassley are putting several of their colleagues in close races in untenable positions. As a greater majority of voters push for action on the nomination, senators in close races are bound to begin to question their leadership’s obstructionist strategy.

Grassley Promises Anti-Choice Activists He'll Hold The Line Against Garland

Sen. Chuck Grassley, R-Iowa, joined a conference call of anti-abortion activists hosted by the Susan B. Anthony List last night to assure them that he would continue to hold the line and refuse to hold a Judiciary Committee hearing on President Obama’s Supreme Court nominee, Merrick Garland.

Also joining the call were Republican Sen. Steve Daines of Montana and Sen. James Lankford of Oklahoma, who delivered an opening prayer.

Grassley told the activists that when someone asked him for an update on the nomination last week, he said that “an update would suggest that something has changed” and that he still intends to block any nominee until the next president takes office.

He said that preventing “another liberal” from joining the Supreme Court was necessary to keep “even the reasonable restrictions on abortion that have been enacted into law through the democratic process” from being “swept away.”

Grassley cited a recent National Right to Life poll which he said found that “about 80 percent of Americans don’t believe that abortions should be available after the first trimester.” (It was more complicated than that.)

“But we know that justices who embrace the view that the Constitution is a living document don’t share that view that you and I share,” he said. “The American people, through their elected representatives, should be making these policy decisions, not unelected judges. These are life-and-death issues that we’re fighting for. They show just how important this fight over who’s going to fill Scalia’s seat is.”

In response to a question from SBA List president Marjorie Dannefelser, Grassley suggested that news reports characterizing Garland as moderate are a misleading ploy by the media (one that, if he was correct, he himself and some of his Republican colleagues would be in on).

When Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan were nominated, he said, “always in these headlines at the time they were nominated, that adjective was the word ‘moderate,’ just like Garland. Well, we know how those four have turned out. So don’t believe what you read in the press about people’s basic philosophy, because they got it all wrong and probably intentionally all wrong.”

When Dannenfelser asked Grassley to respond to the argument that the Senate is neglecting its job by refusing to even consider Garland’s nomination, Grassley repeated his claim that it would actually be a waste of taxpayer money to give Garland a hearing.

“Well, we could have a hearing, we aren’t going to have a hearing, but let’s just suppose we could have a hearing,” he said. “And I know 52 people, at least 52 in the Senate, aren’t going to approve it. So you have a hearing and you spend a lot of taxpayers’ money gearing up for it, you spend a lot of time of members, a lot of research that has to be done by staff, and then it ain’t going to go anyplace.”

“It’s like getting dressed up for the prom but you don’t get to go,” Dannenfelser said.

Tea Party Group Draws Crowd Of Tens To Protest Supreme Court Confirmation

Today, as thousands of people gathered in front of the Supreme Court to voice their support of President Obama’s executive actions on immigration, a somewhat smaller crowd organized by Tea Party Patriots held forth against the DAPA/DACA actions and urged the Senate not to confirm President Obama’s Supreme Court nominee Merrick Garland.

We counted about 20 people at the Tea Party Patriots event at 11 am, shortly before the event’s speeches were scheduled to begin: 

The heavily outnumbered protesters carried signs saying “#NoHearingsNoVotes,” “#TheDecisionIsOurs,” “#LetThePeopleDecide” and “Let The People Have A Voice On The Future Of The Court,” the message that anti-Garland groups have settled on to make their quest to block hearings on a Supreme Court nomination sound like a populist rallying cry. The sign on a podium labeled Garland “Obama’s Rubber Stamp.”

There was a high ratio of Republican and conservative movement speakers to grassroots activists, asRep. Louie Gohmert, R-Texas,Rep. Ken Buck, R-Colo.,Rep. Steve King, R-Iowa, and the Judicial Crisis Network’s Carrie Severino addressed the small crowd.

Here’s another view of the Tea Party Patriots event:

 

UPDATE: Politico reports:

News concerences sponsored by the Tea Party and FreedomWorks also featured Reps. Ted Yoho (R-Fla.) and Louie Gohmert (R-Texas), as well as other speakers who unsuccessfully tried to lead the crowd in the Pledge of Allegiance and "America the Beautiful." An effort to lead a singalong of the national anthem backfired when the singer forgot the lyrics midway through, drawing jeers.

 

PFAW Hosts Member Telebriefing on the Democracy Awakening

As thousands of activists from around the country head to Washington, DC for the Democracy Awakening, a weekend of marches, rallies, workshops, lobby visits, and – for some – nonviolent civil disobedience, PFAW hosted a member telebriefing Thursday about the upcoming mobilization. Through the Democracy Awakening, Americans are demanding that Congress take action to fix our democracy, from protecting voting rights to getting big money out of politics to giving the president’s Supreme Court nominee fair consideration.

“These are all connected issues,” PFAW Executive Vice President Marge Baker said on the call. She emphasized that auctioning off democracy “to the highest bidder,” suppressing the vote, or obstructing justice through Republican senators’ “absurd and totally indefensible” position that President Obama’s Supreme Court nominee shouldn’t be given fair consideration are all threats to our democracy.

“We have to take back the engines of our government for the American people,” Baker said.

PFAW Government By the People Campaign Manager Rio Tazewell outlined the schedule for the weekend and noted that even people who can’t travel to DC can still take action in their own towns through letters to the editor, contacting elected representatives, and taking action on social media.

You can listen to the full telebriefing below, and visit www.democracyawakening.org for more information:

PFAW

Edit Memo: Merrick Garland, The Supreme Court and Money in Politics

To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: April 15, 2016
Re: Merrick Garland, The Supreme Court and Money in Politics

Perhaps no area of American constitutional law has seen greater upheaval by the Supreme Court in the past decade than the issue of money in politics. Similarly, perhaps no set of Court rulings has had a more significant – or more damaging – effect on the very nature of our nation’s electoral democracy. While a narrow 5-4 majority on the Roberts-Alito Court has become infamous for bending the law and twisting logic in order to rule in favor of corporate and other powerful interests in a variety of contexts, its decision in Citizens United stands out and has generated a national movement to undo it.

Hence, there is great interest in how President Obama’s Supreme Court nominee has approached these issues. This report primarily analyzes D.C. Circuit Judge Merrick Garland’s record on cases involving money in politics. It also looks at how he has ruled in non-political contexts when corporate or other interests have sought to use the First Amendment as a way to evade standard business regulations.

The cases show that Judge Garland bases his rulings not on theory and ideology, but instead on how the world really works. He shows deep respect for the legitimacy of government regulation to protect the public interest, and he is careful not to address issues that do not need to be addressed. He does not use the bench as a platform to impose his personal ideology onto the law and the American people. Although it is difficult to predict precisely how a judicial nominee will rule, having Judge Garland on the Supreme Court in the seat formerly occupied by Justice Scalia makes it significantly more likely that the Supreme Court will be more receptive to upholding legislation at the state and federal level to deal with the serious problem of money and politics.

Judge Garland’s Record on Money In Politics

Judge Garland has written or joined a number of decisions on money and politics. In his nearly two decades on the bench, perhaps the most important opinion on money in politics that Judge Garland has authored is one from just last year called Wagner v. FEC (2015). Judge Garland wrote a carefully considered opinion upholding a 75 year old law prohibiting federal contractors from contributing money to federal candidates, parties, or committees.

In a post-Citizens United and post-McCutcheon world, it seems that few if any reasonable limits on election contributions or spending are safe from attack. But the D.C. Circuit upheld the “pay to play” law in an opinion that was starkly different from Citizens United in its focus on how the real world works and its respect for Congress’s ability to craft appropriate campaign finance laws that are responsive to serious problems.

The plaintiffs were three individuals who were federal contractors claiming the ban violated their First Amendment rights. Working as he had to within the conservative Roberts Court’s absurdly narrow definition of “corruption,” Judge Garland drafted a carefully structured opinion showing how the ban serves two important governmental interests: (1) preventing real and perceived corruption; and (2) protecting merit-based government administration.

He went out of his way to take the reader (and his fellow judges) on a detailed historical tour of the corruption caused by money from contractors and those similarly situated that has too often infected our political system. For page after page after page in the opinion, Judge Garland presented one example after another, clearly showing the serious problems that motivated Congress to adopt the ban. As Garland wrote, “this historical pedigree is significant,” because it leads to greater judicial deference to congressional judgments. But rather than stop there, he continued the historical tour, this time based on the experiences of a number of states. He accurately described these as “an impressive, if dismaying, account of pay-to-play contracting scandals.”

When the contractors argued that the modern formalized system of competitive bidding makes it immune from political influence, Judge Garland did not accept that on faith. He looked at how the system actually works, including how political appointees can influence the decisions of independent contract officers, and how members of Congress can get involved in the process.

Judge Garland’s factual presentation in Wagner was so thorough and his subsequent legal reasoning so persuasive that his opinion was joined by every single one of the 11 active judges on the D.C. Circuit, a remarkable feat for such an important case in an area of the law that has seen tremendous change in the past few years. Rather than close his eyes to how the political world really works, he wrote an opinion strongly endorsing the authority of Congress to adopt the contractor contribution ban.

In addition to attacks on campaign contribution limits, the past few years have also seen attacks on disclosing where campaign-related money is coming from. Opponents paint a picture suggesting that disclosure leads to retribution by those who disagree with them. While Judge Garland has not written any major opinions in cases involving constitutional challenges to election spending disclosures, he did write one on lobbying disclosures, where the concerns were similar and where the court upheld disclosure requirements.

In National Association of Manufacturers (NAM) v. Taylor (2009), NAM challenged revised federal lobbying disclosure requirements as violating the First Amendment. Congressional lobbyists have long had to disclose who they are being paid to lobby for and the specific issues they are lobbying about. Under the old law, when they were hired by a coalition or association, they only had to report that entity as their client, not its constituent members. That changed in 2007, when Congress amended the law to give the public a better idea of who was actually behind the large sums of money spent to shape our nation’s laws. Lobbyists for such an association would now have to report not just the entity as the client, but also any member of that entity that spent over a certain amount and that had a major role in planning, supervising, or controlling the lobbying activities.

NAM claimed that the disclosure requirement would chill the participation of its members in debate over public policy, out of fear for the consequences if their identities became known. Judge Garland wrote the panel opinion rejecting the claim, with an opening that was short and to the point:

More than fifty years ago, the Supreme Court held that the public disclosure of "who is being hired, who is putting up the money, and how much" they are spending to influence legislation is "a vital national interest." United States v. Harriss, 347 U.S. 612, 625-26, 74 S. Ct. 808, 98 L. Ed. 989 (1954). Today, we consider a constitutional challenge to Congress' latest effort to ensure greater transparency, the Honest Leadership and Open Government Act of 2007. Because nothing has transpired in the last half century to suggest that the national interest in public disclosure of lobbying information is any less vital than it was when the Supreme Court first considered the issue, we reject that challenge.

With regard to supposedly chilled speech, Judge Garland pointed out that NAM had not presented any evidence that it had suffered from any sort of violence or harassment due to its own, long-disclosed lobbying activities. He also noted that even though NAM’s website publicly lists more than 250 member organizations, there was no evidence of injury to any of them due to NAM’s lobbying.

He also made the tie to election campaign contribution disclosures explicit:

[T]he risks that NAM claims its members would suffer if their participation in controversial lobbying were revealed are no different from those suffered by any organization that employs or hires lobbyists itself, and little different from those suffered by any individual who contributes to a candidate or political party. If that kind of risk rendered [the law] unconstitutional, it would invalidate most compelled lobbying disclosures in contravention of Harriss, and most compelled campaign finance disclosures in contravention of Buckley.

Importantly, Judge Garland wrote for a unanimous panel that also included judges nominated by Presidents Reagan (Douglas Ginsburg) and George H.W. Bush (Karen Henderson).

Judge Garland has also been part of money-in-politics cases where he didn’t write the opinion (or a separate concurrence or dissent). An important one was Shays v. FEC (2008), where he was part of a unanimous panel rejecting FEC regulations as not strong enough to be consistent with the text and purpose of the 2002 McCain-Feingold law (more formally known as the Bipartisan Campaign Reform Act of 2002, or BCRA). The opinion was authored by Judge David Tatel (a Clinton nominee) and joined by Garland and Judge Thomas Griffith (a Bush-43 nominee).

Three regulations were being challenged. The first was the FEC’s test of what advertisements count as “coordinated communications,” through which candidates and outside spending groups would be evading contribution limits and other restrictions. The panel upheld part of the definition but rejected other parts, concluding that the rule actually “provide[d] a clear roadmap” for using soft money in federal elections in direct contradiction to the law’s purpose.

The second challenge was to the FEC’s definitions of “get out the vote activities” and “voter registration activities,” which the McCain-Feingold law prohibited state parties from using “soft money” to pay for. The court struck down the FEC’s definition as having enormous loopholes that would let state parties easily evade the restriction. For instance, the agency’s definitions limited VR (voter registration) and GOTV (get out the vote) activities to efforts aimed at individuals, and therefore did not count mass mailings or robocalls. The definitions also did not count actively encouraging someone to register or to vote as VR or GOTV unless the party actually assisted them to do so.

The third challenged rule let federal candidates solicit soft money at state party fundraisers, which the panel found to be in direct contradiction to the part of the statute prohibiting just that.

This case – one of statutory interpretation rather than of constitutional law – suggests that Judge Garland takes seriously the congressional intent behind laws regulating money in politics. This was actually the second time that these rules implementing McCain-Feingold had been rejected by the D.C. Circuit (Judge Garland was not on the panel in that earlier stage). So it is perhaps with a hint of impatience that the panel wrote:

We remand these regulations in the hope that, as the nation enters the thick of the fourth election cycle since BCRA's passage, the Commission will issue regulations consistent with the Act's text and purpose.

One important decision weakening restrictions on money in politics that Judge Garland joined but didn’t author was SpeechNow.org v. FEC (2010), which is often credited or blamed for the creation of super-PACs. In this case, the court, acting en banc, struck down congressional limits on contributions to entities (like SpeechNow) that make independent expenditures to expressly advocate the election or defeat of candidates running for federal office, but do not make direct contributions to candidates or parties.

The court issued its ruling just a few weeks after Citizens United. That timing is important, because every judge on the D.C. Circuit regardless of ideology agreed that the changes wrought by that seminal Supreme Court case mandated the result in SpeechNow. Citizens United stated that, as a matter of law, independent expenditures do not corrupt or create the appearance of corruption (which the Roberts-Alito Court defines extremely narrowly); and the ruling reaffirmed the Court’s misguided view that fighting corruption or its appearance is the only reason Congress may set contribution limits. With these propositions as binding legal precedent, the D.C. Circuit unanimously agreed that contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption. In other words, the federal government has no anti-corruption interest at all (the only interest the Court recognizes) to counterbalance what the Court characterizes as a limitation on First Amendment rights.

Every judge, including Garland, joined the opinion, which was authored by Judge David Sentelle. SpeechNow is a case that tells us much more about the Justices on the Supreme Court than it does about any judge on the D.C. Circuit. In fact, it tells us very little about the views of Judge Garland or any of the other judges on the appellate court, other than that they faithfully obeyed the recent and binding precedent in Citizens United.

Not all cases involving money in politics get decided on the merits; sometimes the court rules that the plaintiffs lack standing to sue. Judge Garland generally agrees with his colleagues when this happens, but he tends to be very careful in how he approaches the issue. For instance, he concurred in the judgment of the panel decision in a 2007 case called Citizens for Responsibility & Ethics in Washington v. FEC. His fellow judges go on for several pages providing several reasons for finding that CREW lacks standing. In contrast, Judge Garland’s concurrence states in its entirety:

I agree with the court that there is no meaningful distinction between this case and Common Cause v. FEC, 323 U.S. App. D.C. 359, 108 F.3d 413 (D.C. Cir. 1997), and on that ground conclude that CREW lacks standing to litigate its challenge to the Commission's decision.

He had a similarly short concurrence on standing in an earlier case called Wertheimer v. FEC (2001). By basing his judgments on as narrow a basis as possible, Judge Garland avoided addressing issues he felt did not need to be addressed. In an era when conservative judges are increasingly closing the courthouse door to Americans whose rights have been violated, Judge Garland seems to place a priority on not closing any doors unnecessarily, and on avoiding needlessly or unintentionally laying the groundwork for future restrictions on standing. This is of great importance across all areas of the law, including money in politics.1

Judge Garland’s Record on Commercial and Corporate Speech

Related to the analysis of Judge Garland’s approach to money in politics issues is his record on the D.C. Circuit with respect to First Amendment protections accorded to commercial and other corporate speech. These interests have played an important role both in the Supreme Court’s analysis of money in politics issues and in its analysis of corporate claims of First Amendment bars to regulations promulgated to protect the public interest.

As on other legal issues, Garland’s opinions and votes demonstrate a respect for precedent and a careful analysis of the facts and the law with respect to claims that government regulation impedes corporations’ First Amendment rights. Importantly, in several cases, he has rejected efforts to expand constitutional protection for commercial and corporate speech beyond recognized limits. And he has joined opinions upholding government requirements that corporations affirmatively disclose certain information despite their claims that this constituted impermissible compelled speech.

In perhaps the most important such case, Judge Garland joined both the panel opinion and the subsequent opinion by the full D.C. Circuit upholding government requirements that corporations disclose information of importance to consumers who want to “buy American” or who are concerned about food safety. Specifically, in American Meat Institute v. USDA (2014), the court in that case upheld an Agriculture Department requirement that companies disclose country-of-origin information for certain meat products, rejecting the claim that the requirement constituted improper compelled speech prohibited by the First Amendment. The court explained that under its interpretation of Supreme Court precedent, a deferential standard of review applied because a corporate speaker’s interest in opposing the forced disclosure of factual information is minimal. The rule was justified, the court explained, by the government’s interest in consumers receiving information to help them make informed purchasing decisions (e.g. avoiding purchases of meat products from countries with food-borne illnesses).

This case is particularly important because the opinion of the full circuit court overruled earlier panel rulings making it much easier for corporations to challenge agency regulations as unconstitutional “compelled speech.” Panels had earlier upheld challenges to graphic cigarette warnings, disclosure requirements with respect to conflict minerals, and requirements that employers put up posters spelling out their employees’ legal rights.

Judge Garland has joined several other opinions largely upholding government regulation of commercial speech, although invalidating several restrictions that were not justified under existing precedent. In POM Wonderful LLC v. FTC (2015), Garland joined a unanimous opinion that largely upheld a Federal Trade Commission finding that a company’s advertising claims that daily consumption of certain beverages would produce specific health benefits were false and misleading, based on careful analysis of the relevant facts and controlling Supreme Court precedent on commercial speech, particularly Central Hudson Gas & Elec. Co. v. Public Serv. Comm.(1980) . But the panel, including Garland, ruled that the FTC went too far under Central Hudson in requiring that each future disease-related representation by POM Wonderful would have to be justified by two randomized and controlled human clinical trials, when one would do. (The company lost its argument that none should be required). In TransUnion LLC v. FTC (2002), he joined a unanimous decision upholding an FTC requirement restricting credit reporting businesses’ ability to disclose and reuse consumer financial information. The panel rejected the company’s claim that the consumer privacy regulation violated its First Amendment free speech rights.

In Pearson v. Shalala (1999),  Garland joined a unanimous opinion rejecting a U.S. Food and Drug Administration decision prohibiting dietary supplement marketers from making particular health claims that were not supported by significant scientific agreement. Importantly, the FDA did not believe that the supplements at issue were in any way harmful to the public, so public health was not an issue. The FDA also was not contending that the health benefit claims were definitely false, but that they weren’t supported by the science, and that consumers could be misled into thinking otherwise. The panel cited precedent where the Supreme Court ruled that requiring advertisers to include disclaimers to potentially misleading statements was constitutionally preferable to prohibiting the statements altogether. In an opinion written by Judge Laurence Silberman and joined by Garland and Judge Patricia Wald, the panel ruled that the agency’s outright prohibition of the insufficiently supported health claims violated the First Amendment, since there were less restrictive alternatives available (such as a disclosure that the claim has not been approved by the FDA).

In several additional cases, Judge Garland has written or joined opinions rejecting efforts to expand the First Amendment’s free speech guarantee into a tool to evade federal agencies’ standard regulations or enforcement actions. For example, Garland wrote the unanimous opinion in Trudeau v. FTC (2006) rejecting a lawsuit against the FTC for issuing an allegedly misleading press release about the settlement of a false advertising case, commenting that the First Amendment did not give the plaintiff “the right to take a red pencil to the language of the FTC’s press release.” See also Grid Radio v. FCC (2002) (joining a unanimous ruling rejecting the claim that the First Amendment protects a right to broadcast low-power radio without a license); Tribune Company v. FCC (1998) (joining a unanimous opinion upholding an FCC rule limiting ownership of a newspaper and television station by the same owner in the same market and explaining that the First Amendment does not give the newspaper owner an absolute right to broadcast speech).

Conclusion

President Obama has selected a highly qualified judge to replace Justice Scalia on the Supreme Court. In the area of money in politics and related areas, Judge Garland is not an ideologue who seeks to use the federal bench as a political weapon to empower those who are already powerful and to game our democratic system in favor of the wealthy and powerful. He would be a positive addition to the Supreme Court, including with respect to money and politics.

 

 

 

1. Judge Garland also recently wrote the opinion for a unanimous panel ruling that former Idaho Sen. Larry Craig had unlawfully used campaign funds to pay for his personal legal efforts to withdraw his guilty plea regarding an embarrassing incident in a Minneapolis – St. Paul airport bathroom. Joining Judge Garland in this unsurprising 2016 ruling in FEC v. Craig for U.S. Senate were Judges Griffith and Sentelle.

Who Is Chuck Grassley Listening To?

Despite holding a “friendly” meeting with Merrick Garland this morning, Senate Judiciary Committee Chairman Chuck Grassley remains adamant that he will not hold hearings on President Obama’s Supreme Court nominee.

On the ground in Grassley’s home state of Iowa, a clear rift is being exposed between those who are encouraging Grassley’s continued intransigence and the constituents who are calling for their senator to do his job.

Notably this week, Keith Uhl, a lawyer in Des Moines who helped manage Grassley’s first campaign for the Senate, asked his former boss to proceed with the normal course of events for a Supreme Court appointments and hold hearing and a vote on the president’s nominee.

One the other hand, the anti-gay head of the Family Leader, Bob Vander Plaats, wrote an op-ed in the Des Moines Register thanking Grassley for not acting on Garland’s nomination and for “advising that the people need to speak before any further appointments are constitutionally confirmed to the Supreme Court of the United States."

For the moment Grassley has made his choice, making his bed with a radical right-wing demagogue. Vander Plaats previously advocated that Congress defund courts whose judges rule in favor of marriage equality. He warned that God might not bless America because a Wiccan led a prayer at the Iowa state capitol. Vander Plaat also praised Russian President Vladimir Putin for stating, “don’t bring this homosexual propaganda into my country for the Olympics.” Vander Plaats also has compared a gay pride event to the Boston Marathon bombing.

Grassley, who once lamented that Democrats were siding with their base over the wishes of the American people, has made the decision that the support of Bob Vander Plaats and other conservative movement figures is more important than fulfilling his constitutional duties.

The difference could not be illustrated more starkly: a former campaign manager asking his boss to do the job he helped elect him to do, versus a radical conservative who would like to see judges’ salaries subject to whether they issue decisions he agrees with.

Grassley has clearly made the wrong choice.

Sorry You Missed Sen. Johnson’s Party!

Milwaukee, WI – To celebrate Sen. Johnson’s birthday, Wisconsin activists with People For the American Way, Organizing for Action, Voces de la Frontera, One Wisconsin Now, and Emerge Wisconsin gathered at Sen. Johnson’s Milwaukee office to throw him a birthday party – and send the message that while everyone, even Sen. Johnson, deserves a great birthday party, it’s time for him to end his partisan obstruction and give fair consideration to President Obama’s Supreme Court nominee.

Activists tried to deliver Sen. Johnson and his staff a birthday cake with the message, “Happy Birthday Ron Johnson! Now, #DoYourJob” (pictures are below and attached). Unfortunately, Sen. Johnson and his staff didn’t choose to join in the celebration.

PFAW Regional Political Coordinator Scott Foval stated:

“We hoped to celebrate our senator’s birthday with him, but it seems like just as he doesn’t have time to do his job and give fair consideration to Supreme Court nominee Judge Garland, he doesn’t have time to enjoy some delicious cake with his constituents!

“Now that the party’s over, it’s high time for Sen. Johnson to follow the Constitution and push for hearings and a vote for Judge Garland.”

Pictures from today’s birthday party:

  

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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
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