Fair and Just Courts

Meet A Law Professor Conservatives Turn To On Marriage, Immigration And The SCOTUS Blockade

Among the right-wing figures encouraging Republican senators to block any nominee President Obama might make to the U.S. Supreme Court last week was law professor John Eastman, who right-wing radio host Hugh Hewitt calls “perhaps the most revered center-right specialist in America.” If that’s true, it may be because Eastman puts himself out there on so many issues that rile today’s far-right. He chairs the anti-gay National Organization for Marriage and he is also one of the leading voices in opposition to birthright citizenship. His advocacy pretty much covers the right wing’s public policy wish list.

On Hewitt’s radio show on February 15, Eastman called Scalia’s death a “devastating loss” not only for Scalia’s family “but also for our understanding of the appropriate role of the court in constitutional adjudication.”  Eastman agreed with Hewitt’s assertion that it is “well within” Republican senators’ constitutional authority “not to give a hearing or a vote to President Obama’s nominee,” saying that Republicans “ought to oppose with every bit of their power” the kind of nominee he would expect from President Obama, someone who he believes will “try and nail the lid in the coffin on advancing his radical transformative agenda.”

Eastman said Scalia’s death will put the role of the high court at the center of the presidential campaign, declaring that “there is a fundamental difference” between the political parties on a central question: “Do we live in an autocratic, unelected regime run by nine black robed individuals, or are we the people the ultimate sovereigns in this country?”

That’s the kind of rhetoric that warms the hearts of far-right leaders like Sharron Angle, the Tea Party activist who lost a challenge to Nevada Sen. Harry Reid in 2010 and whose is encouraging an effort by a couple of state legislators to draft her for a 2016 Senate bid. “The U.S. Senate should absolutely put a hold on any nomination this President sends to the hill,” Angle said last week. “We have to stop the damage to the Constitution now!”  Angle went even further, declaring that Eastman would make the “perfect” Supreme Court justice.

If he ever did make it onto the court, Eastman would manage the remarkable feat of being to the right of the late Justice Scalia. Like Chief Justice John Roberts, Scalia opposed the Supreme Court’s infamous 1905 Lochner decision, which ushered in an era in which the court routinely rejected economic regulations, like a state limiting the hours employees could be required to work, and exhibited hostility to union activity. On Hewitt’s show, Eastman recalled Scalia turning a speaking invitation into a forum on Lochner, on which Scalia disagreed with Eastman, who is part of a pro-Lochner movement in right-wing legal circles.  Eastman also takes a fringe position, one held on the current Supreme Court only by Justice Clarence Thomas, that the First Amendment’s ban on the establishment of religion cannot be properly applied to the states.

Eastman is a professor  at Chapman University’s Fowler School of Law in California and is the founding director of Center for Constitutional Jurisprudence, affiliated with the conservative Claremont Institute. He stepped down as dean of the law school to run for California attorney general in 2010. National right-wing leaders, including Ed Meese, Ed Whelan, Bill Bennett, Michele Bachmann and others backed his bid, but he failed to win the nomination.  Eastman, who clerked for Supreme Court Justice Clarence Thomas and 4th Circuit Appeals Court Judge Michael Luttig, worked at the U.S. Commission on Civil Rights during the Reagan administration. In 1990 he was the GOP nominee for Congress from the 34th District in California.

A few highlights (or lowlights) from Eastman’s activism and rhetoric:

Role of the Courts

Eastman, who chairs the National Organization for Marriage, appeared at a July 2015 Senate hearing convened by Ted Cruz after the Supreme Court’s marriage equality ruling, which Cruz called “the very definition of tyranny.”

Eastman agreed with Cruz’s call for Supreme Court justices to be subjected to judicial retention elections and term limits, and added his own proposals to keep the court in check. He said a simple majority of states should be allowed to override “egregiously wrong” Supreme Court decisions, and that Congress should be able to veto Supreme Court rulings by a two-thirds majority in both houses.  He also suggested that Congress should impeach judges whose rulings it considers unconstitutional.  And he interpreted Scalia’s dissent in the marriage case to be “an invitation to executive officials throughout the land to refuse to give their ‘aid’ to the ‘efficacy of the’ Court’s judgment in the case.”

I truly hope this Committee will give serious thought to these proposals, advancing them with your approval, first to the full Senate, then to the other House, and then ultimately to the people for consideration and hopefully ratification. But I encourage you to do that soon, as I sense in the land a strong feeling that our fellow citizens are about out of patience with the “long train of abuses and usurpations” that have emanated from an unchecked judiciary. They have demonstrated for a very long time now that they, in the words of the Declaration of Independence, have been “more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms [of government] to which they are accustomed.” We should not expect that the patience of our fellow citizens will last forever. Let us now, therefore, in good faith, advance solid proposals to restore and expand checks and balances on the judiciary before that patience runs out.

Marriage and LGBT Equality

In 2000, Eastman called homosexuality an indicator of “barbarism.” He called the Supreme Court’s 2003 Lawrence decision, which overturned laws criminalizing consensual gay sex, a “despotic” decision.

Given his position at the National Organization for Marriage, which he has chaired since 2011, it is not surprising that Eastman’s rhetoric in opposition to marriage equality has been consistently hostile. When he took the position, he told the conservative National Catholic Register, “Evil will be with us always, and it requires constant vigilance to defeat.”

At the 2012 Conservative Political Action Conference, Eastman attacked the Ninth Circuit decision overturning California’s Proposition 8 and warned that legalizing marriage for same-sex couple would hurt children and have “catastrophic consequences for civil society.” He said marriage equality “would destroy the institution that has been the bedrock of civil society since time immemorial.”

At the June 2014 March for Marriage in Washington, organized by NOM, Eastman said that Justice Scalia’s dissent from the court’s 2013 decision overturning the federal Defense of Marriage Act was “a call to arms.” “Let the justices know that we will not tolerate them redefining marriage!”  he said. “The good of society and the wellbeing of our children depend on it!”

In 2014, after the Supreme Court refused to hear an appeal of a federal court ruling that made legalized marriage for same-sex couples in North Carolina, Eastman told North Carolina legislative leaders to defend the state’s marriage ban anyway — even though Attorney General Roy Cooper had said it would be a waste of taxpayer money. The Charlotte Observer later reported that the Claremont Institute, where Eastman serves as the director for the Center for Constitutional Jurisprudence, had billed North Carolina $78,200 for its work defending the law, a price that it said included a “public interest” discount.

In an April 2015 podcast for the Constitution Center following oral argument in Obergefell, Eastman said it was “perfectly legitimate” to limit marriage to opposite-sex couples due to their “unique procreative ability.”  He denounced the Supreme Court’s 2015 marriage equality ruling as “not only wrong, but illegitimate,” going so far as to encourage anti-equality groups in Alabama to resist the decision. 

In 2015, commenting immediately after the Supreme Court’s marriage equality ruling for a Federalist Society podcast, Eastman called it “surreal beyond belief” to believe the people who ratified the 14th Amendment would believe that it mandated “the redefinition of a core social institution that is both religiously and biologically grounded.”

Eastman has praised Rowan County, Kentucky, clerk Kim Davis, who tried to stop her county office from issuing marriage licenses to same-sex couples after the Supreme Court’s ruling, saying  “She confronted what I call a Thomas More moment, and she’s demonstrated her saintliness in how she’s responded to this.”

Outside of marriage equality, Eastman has said that a ruling by the Equal Employment Opportunity Commission’s decision to treat discrimination on the basis of sexual orientation as a form of sex discrimination was an example of the “utter lawlessness” of the way “these agendas are being pushed through.”  Last July Eastman said that some gay rights activists “in their candid moments … have admitted that they want to destroy the church, and they want to destroy the family…”

A few months ago, Eastman reacted to Hillary Clinton’s address to the Human Rights Campaign in a radio interview in which he denounced the LGBT equality movement as “fascist” and claimed that it was promoting pedophilia:

This is not about anti-discrimination laws any more. This is about forcing people to bend the knee to an agenda to say things that are inherently immoral are in fact normal and moral … It’s a very fascist movement that forces a viewpoint on other people that disagree ... We’re finding challenges to age of consent rules because a good portion of this movement seeks to remove age of consent so they can have sex with teenage boys.

He claimed that the LGBT movement’s actual goal was not to achieve the right to marry but to destroy the institution of marriage, because the family is a bulwark against unlimited and omnipotent government.

Support for Uganda’s Anti-Homosexuality Act

In 2015, Eastman gave a speech at the Family Research Council defending Uganda’s notorious Anti-Homosexuality Act and saying he hoped the law — rejected by the country’s Supreme Court over a procedural issue — would come back “in short order.”

He cited as justification for the law President Mouseveni’s claims that “western groups” were trying to use the schools to recruit children into homosexuality.  Eastman said that the law’s provision for lifetime in prison was only for “aggravated homosexuality,” which he defined as “homosexual acts” by someone with HIV/AIDS or “homosexual acts with minors.” In reality, the law’s definition of “aggravated homosexuality” also included serial offenders. As he noted, the law included prison terms for someone who “counsels” a person into homosexuality, a provision that seemingly did not bother Eastman. The law would even have imposed a prison term of up to seven years for attempting “to commit the offence of homosexuality.” Eastman denounced American opposition to the bill as “cultural imperialism.”

Eastman also joined Family Watch International’s Sharon Slater as a speaker at a “National Family Conference” in Nairobi in 2015; the conference was sponsored by Kenya Christian Professionals Forum, a group that not only supports the country’s law criminalizing homosexual sexual activity, but fought to prevent LGBT groups from even being allowed to legally register as advocacy organizations.

Immigration as Invasion

Eastman has also become one of the most visible advocates for eliminating the 14th Amendment’s protection of birthright citizenship. Actually, Eastman believes there’s no need to change the Constitution or law in order to deny citizenship to children born in the U.S. to undocumented immigrants, just a court decision to correct what he thinks is an erroneous interpretation of the 14th Amendment.

In December 2014, Eastman testified at a Senate Judiciary Committee hearing on President Obama’s executive actions on immigration, which he said violated the Constitution. Eastman rejects the idea that the administration’s actions reflect an exercise of prosecutorial discretion.  Obama, he said, “has taken it upon himself to drastically re-write our immigration policy, the terms of which, by constitutional design, are expressly set by the Congress.” 

Eastman has been at this for a long time. He testified before a House subcommittee in 2005 in favor of reconsidering birthright citizenship in the wake of 9/11, and he published a paper for the Heritage Foundation in 2006 urging Congress to assert its authority and make clear that children born to people who are not in the country legally are not considered citizens.

In a 2006 Federalist Society exchange, he said:

Our current non-enforcement policy has fostered "outlaw" communities of non-citizens amongst our midst, who not only work illegally, but who are bankrupting our social services systems and who, tragically, are preyed upon by trans-border thugs well aware that their victims will not report crimes for fear of deportation. This is no way to treat fellow human beings. Why should we expect that the new spate of amnesty proposals, whether denominated "guest worker" plans or something else, will not also continue the incentive for illegal immigration that the 1986 Act provided?

In that same Federalist Society Q&A, he noted that the Constitution requires the president to protect the country against invasion, adding, “We have been invaded by more than 10 million people, and it is the president's duty, not just right, to defend against that invasion.” He also challenged the notion of dual citizenship, calling it “self-contradictory” and saying “it has no place in our existing law.”

In 2011, he co-authored an article for a Federalist Society publication defending Arizona’s infamous anti-immigrant bill SB 1070, writing that “Arizona was well within its rights to adopt SB 1070. Indeed, given the border lawlessness that Arizonans are facing, it is not a stretch to argue that the Arizona government may well have been duty-bound to take some such action.”

Church-State

Eastman is critical of more than a half century’s jurisprudence on church-state issues. He says that under the modern view of church-state separation “we completely destroy the foundation for our entire constitutional system.” He has argued that a state taxing people to support an official church, as some states did early in the nation’s history, was not all that coercive and, as we noted earlier, he believes it is wrong to interpret the 14th Amendment as applying the Establishment Clause of the First Amendment to the states.

Eastman champions an expansive reading of the Religious Freedom Restoration Act in line with the Supreme Court’s Hobby Lobby ruling and backs the passage of additional state RFRAs and religious exemptions. He has joined Religious Right leaders in portraying Rowan County, Kentucky, clerk Kim Davis as a heroine for refusing to marry same-sex couples.

Anti-Union

Eastman, not surprisingly, supports right-wing attacks on unions. In a July 2015 blog post, Eastman argued that it is “time to drive a stake through the heart of mandatory dues.” Eastman noted that Justice Samuel Alito, writing in an earlier decision, essentially invited the kind of lawsuit that the Court has agreed to hear this term in the Friedrichs case, which conservatives hope the Supreme Court will use to dramatically weaken the power of public employee unions.

Constitutional Limits on Spending

Eastman has also argued that the country’s view of the Constitution’s Spending Clause has been wrong ever since the Supreme Court’s 1936 decision in United States v. Butler. He believes Congress does not have the constitutional authority to make appropriations for “internal improvements,” citing, among other things, President James Buchanan’s veto of a bill that would have granted public lands to states for the establishment of agricultural colleges.

In 2014 he joined the advisory council of the Compact for America, a group whose goal is to have the states propose and ratify a balanced budget amendment to the U.S. Constitution through an “Article V” convention. Under the proposal, Congress could only increase the debt limit with the approval of a majority of the state legislatures; any new sales or income taxes would require two-thirds approval of both houses of Congress.

Reproductive Rights

At a Federalist Society debate, Eastman referred to Roe v. Wade as one of the Supreme Court’s “grievous mistakes” — like its affirmation of the Affordable Care Act’s constitutionality — to which he would not give deference.  At a Federalist Society panel from 2014 on the ACA’s contraception mandate, he argued that there is basically no distinction between individuals and the corporate structure when it comes to freedom of conscience, a view adopted by the Court majority in Hobby Lobby, which has opened a door to corporations claiming exemptions from generally applicable laws based on the religious beliefs of company owners, such as complying with the requirement that insurance provided for employees include coverage for contraception.  

 

New Poll Shows Obstructionist Stance on Supreme Court Vacancy is Hurting Toomey and Portman With Voters

Note to senators in tough reelection battles: putting your Washington DC party bosses over the Constitution by standing in the way of filling the vacancy on the Supreme Court is not only the wrong thing to do for our country, it’s also making voters less likely to support you.

New Public Policy Polling surveys released today show that large majorities of voters in Pennsylvania and Ohio, where Senators Pat Toomey and Rob Portman are running for reelection, want the vacancy created by Justice Antonin Scalia’s death to be filled this year. According to the polling memo:

  • Strong majorities of voters – 58/35 in Ohio and 57/40 in Pennsylvania – think that the vacant seat on the Supreme Court should be filled this year. What’s particularly noteworthy about those numbers – and concerning for Portman and Toomey – is how emphatic the support for approving a replacement is among independent voters. In Ohio they think a new Justice should be named this year 70/24 and in Pennsylvania it’s 60/37.
  • …Voters are particularly angry about Senators taking the stance that they’re not going to approve anyone before even knowing who President Obama decides to put forward. By a 76/20 spread in Pennsylvania and a 74/18 one in Ohio, voters think the Senate should wait to see who is nominated to the Court before deciding whether or not to confirm that person. Toomey and Portman are out of line even with their own party base on that one – Republicans in Pennsylvania think 67/27 and in Ohio think 63/32 that the Senate should at least give President Obama’s choice a chance before deciding whether or not to confirm them. [emphasis added]

Perhaps most notable for the senators, more than half of voters (52 percent in both states) say they would be less likely to vote for Toomey or Portman if they “refused to confirm a replacement for Justice Scalia this year no matter who it was.” Among independents, the numbers were even higher.

Senators Toomey and Portman would be wise to take heed of their constituents, and of the Constitution, and stop refusing to even consider any Supreme Court nominee, regardless of his or her credentials. Any nominee must be treated fairly and honestly. The Supreme Court is far too important to be held hostage to the overtly political obstruction of GOP senators.

PFAW

Martin Sheen Calls Out Ron Johnson For Putting Partisanship Ahead of the Constitution

In a robocall released today by People For the American Way, Wisconsinites are hearing from Martin Sheen about Senator Ron Johnson’s obstruction of President Obama’s judicial nominees. The recording, which is being delivered to activists in Wisconsin, asks voters to contact Senator Johnson and demand that he fulfill his constitutional duty to give fair consideration to President Obama’s nominee to the Supreme Court.

“There’s no question that Senator Johnson is putting partisanship above the Constitution,” said Marge Baker, Executive Vice President at People For the American Way. “The Supreme Court shouldn’t be held hostage to the same partisan gridlock that’s brought Congress to a halt. Ron Johnson should stop playing politics with the law and make clear that he’ll push for the Senate to give fair consideration to President Obama’s Supreme Court nominee. We’re thrilled that Martin Sheen is willing to lend his voice to this campaign, and we’re looking forward to working with our activists to hold GOP senators accountable for their obstruction.”

You can listen to the call here:

A transcript of the recording reads:

Hi, I’m Martin Sheen, calling on behalf of People For the American Way.

Our Constitution is very clear about what happens when a vacancy occurs on the Supreme Court. It says the President shall nominate a new judge, and that the Senate will give that nominee fair consideration.

As you’ve heard, Republicans are playing politics with our Constitution and with the Supreme Court. Senator Ron Johnson has said he doesn’t think that Congress should even give a fair hearing to anyone nominated by President Obama.

That’s irresponsible, and it puts partisanship above the law.

Call Senator Johnson at (202) 224-5323, and tell him you expect him to put his Constitutional duties first—and give fair consideration to President Obama’s nominee.

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 vs. the Integrity of the American Judicial System

Intentionally crippling the Supreme Court for two consecutive terms would be the height of irresponsibility.
PFAW Foundation

Schlafly: GOP Must Block All Obama Judicial Nominees, Strip Courts Of Funding And Power

Right-wing activist Phyllis Schlafly wrote today that Justice Antonin Scalia’s death is “a terrible loss for our Nation” and “a reason for Republicans to rethink their approach to the judicial branch of our government.”  The Eagle Forum founder agrees with Senate Majority Leader Mitch McConnell’s pledge to block any nominee President Obama puts forward to fill the Scalia vacancy, but she wants much more — essentially a declaration of war on the federal judiciary by a conservative Congress.

Of course Senate Republicans should block President Obama from filling this Supreme Court vacancy in an election year, and they have 80 years of precedent on their side. But Republicans should go further and block nominations for all the other vacancies in the federal judiciary, too.

But even with that call for a total blockade of the federal courts, Schafly is just warming up. She wants Congress to cut funding for the courts, cut funding for the enforcement of what she believes are “bad” court decisions, and strip the courts of their jurisdiction over immigration, abortion, and marriage:

It’s fine for the Republican presidential candidates to point out that a vacancy on the Supreme Court is part of the upcoming election, and to promise to fill Justice Scalia’s immense shoes with someone similar. But even if a Republican wins the upcoming presidential election, even if he picks another Justice Scalia, and even if he is confirmed by the Senate, the federal judiciary will still be stuffed with hundreds of activist judges appointed by Obama, Clinton, and even Jimmy Carter.

The Founders gave Congress everything necessary to take power away from this runaway federal judiciary. Congress can deprive the federal courts of power over immigration, abortion and marriage, and can completely defund enforcement of bad federal court decisions that are already on the books.

Congress spent months trying unsuccessfully to defund Planned Parenthood, a laudable goal, but Congress can more effectively defund enforcement of the pro-abortion and pro-homosexual marriage decisions by the judiciary without sparking a phony “war on women” debate.

Congress should also defund use of taxpayer money by the Department of Justice to push the liberal agenda in the liberal courts. Congress should cut back on the funding for the courts themselves, too, and eliminate rather than fill some of the vacancies.

While stopping short of an actual endorsement, Schlafly recently called Donald Trump “the only hope” that grassroots activists have, while many of her Eagle Forum colleagues have endorsed Ted Cruz. But Schlafly is apparently not satisfied with any of the presidential candidates:

While some presidential candidates promise to work with Congress, none of them promise to rein in the Supreme Court in the absence of Justice Scalia. None of them promise to stand up against an unconstitutional order by an activist court by refusing to enforce it, as the next president could do with respect to activist Supreme Court rulings on immigration, abortion, and marriage.

Tell Senators: Give Fair Consideration to the Next Supreme Court Nominee

By refusing to even consider confirming a new justice, Senate Republicans are putting partisanship above the Constitution. Tell Senate Republicans to fulfill their constitutional obligation of giving fair consideration to the president's nominee.

Edit Memo: Filling the Supreme Court Vacancy Caused by the Death of Justice Scalia: What Should the Senate Do?

To: Interested Parties
From: Elliot Mincberg, Senior Fellow, People For the American Way
Date: February 16, 2016
Re: Filling the Supreme Court Vacancy Caused by the Death of Justice Scalia: What Should the Senate Do?

Despite being elected twice by the American people, the second time by a large margin, the President is regularly attacked by Congress, with both houses controlled by the opposition party. Although the President remains popular in his own party and with his base, he is considered a polarizing figure among presidential candidates already seeking to succeed him and in Congress. As the New York Times puts it less than a year before the election, “From large budget deficits to tensions in the Persian Gulf, the President’s positions are under severe attack.”  In the Senate, he has had serious problems in obtaining confirmation for his federal judicial nominees.  And now, with less than a year to go before the election, the President vows to “move promptly” to submit a nomination to fill a Supreme Court vacancy. What does the Senate do?

This is precisely the situation that was before the Senate less than a year before the 1988 presidential election, down to the quote from the New York Times on November 7, 1987. And when President Ronald Reagan nominated Judge Anthony Kennedy to fill a Supreme Court vacancy on November 11, 1987, the Democratic-controlled Senate did not “delay, delay, delay”, in Donald Trump’s words at the last Republican debate. Instead, it confirmed Justice Kennedy in less than three months, on February 3, 1988, by a unanimous vote.

This example shows what is so wrong about current Republican claims that the Supreme Court vacancy caused by the recent death of Justice Antonin Scalia should not be filled until sometime in 2017, after the next election. The crucial importance of the Supreme Court, the overall historical record, and the language of our Constitution all lead to the same conclusion—the current Court vacancy should be filled as soon as possible this year.

The Importance of a Fully Functional Supreme Court

Throughout our nation’s history, and never more than today, the controversies resolved by the Supreme Court have been and are crucial to all aspects of Americans’ lives. The constitutionality of slavery and  of segregated  schools for racial minorities, whether a President can unilaterally seize steel mills and other private property during  war,  the meaning of Congressional laws banning race and other discrimination, a woman’s right to choose, the authority of the EPA to regulate greenhouse gases, whether states can provide vouchers to pay for religious private schools, the constitutionality of laws to regulate campaign finance and help keep big money out of politics, whether there is an individual  right to possess guns under the Constitution, whether states can prohibit marriage by LGBT couples --- all these and many more critical issues have been ruled on by the Supreme Court. Particularly in recent years, many of these significant issues have been decided by narrow 5-4 majorities, so that having a full complement of nine justices is very important.

Take the current 2015-16 Court term, for example. Cases before the Court include such controversial questions as the constitutionality of state efforts to severely restrict abortion providers and to allow unions to effectively organize. The Court is also set to resolve crucial questions on voting rights, contraception, religious liberty, affirmative action, immigration policy, and more. On most of these, the Court is likely to be closely divided. A Supreme Court that is short one justice could very well be unable to issue a majority ruling in most or all of these cases. Although a tie vote would affirm by default the specific lower court rulings under review,  the result would be that many of these important issues would be left in limbo. Filling the current vacancy is crucial to ensure that the Supreme Court can perform its significant role in our democracy.

The Lessons of History

Because of the importance of a fully functioning Supreme Court, the President and the Senate have historically kept the length of vacancies on the Court to a minimum. Republicans now assert that the current Court vacancy should not be filled until after the next President and the next Senate take office in 2017, which means that the vacancy would last for more than a year. But for more than the last century, there has never been a Supreme Court vacancy that has been left open for over a year. In fact, there has never been a vacancy of longer than four months while the Court has been in session. In fact, the Republicans’ proposed obstruction would perpetuate a vacancy in not one but two consecutive terms of the Supreme Court -- another unprecedented action.

The Kennedy confirmation in 1988 was far from the only time that Supreme Court nominations have been confirmed, and even submitted to the Senate, during Presidential election years. In fact, two of our most renowned Justices, Louis Brandeis and Benjamin Cardozo, were nominated in January and February of presidential election years. Both were confirmed long before the election –Cardozo in February and Brandeis, despite significant controversy, in June. In fact, after a careful historical review, SCOTUSblog reported on Feb. 13 that 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.” (emphasis added)

This conclusion is consistent with what happened in 1968, when Chief Justice Earl Warren resigned. President Johnson nominated Justice Fortas for the position and, even as late as the summer of 1968, the Senate Judiciary Committee approved the nomination and sent it to the full Senate. Although the nomination was then filibustered, the historical record is clear that this was because of specific concerns about Fortas’ finances and objections to the Warren Court, not the impending election. In fact, Warren’s resignation did not take effect until his successor was confirmed, which happened in 1969, so that no vacancy on the Court actually occurred.

Republican Claims vs. the Language of the Constitution

Nevertheless, within hours of Justice Antonin Scalia’s death on Saturday, Republican Senate Majority Leader and every Republican presidential candidate announced that they oppose even considering a nominee for the Court vacancy this year, no matter who President Obama selects. McConnell flatly asserted that the vacancy “should not be filled” until after the election.  Sen. Ted Cruz falsely claimed in the Republican debate that there had never been a Court vacancy filled during an election year. Republican Senate Judiciary chair Charles Grassley asserted that it is “standard practice” not to consider a Court nominee in an election year, clearly contradicting the history under both Republican and Democratic presidents and Senates, including the votes by him and Senator McConnell to confirm Justice Kennedy in an election year.

The extreme Republican obstructionist position would strike at the heart of our Constitution. Article II, Section 2 of the Constitution makes clear that the President “shall nominate, and with the Advice and Consent of the Senate, shall appoint” people to fill vacancies on the Supreme Court.  Despite their professed regard for the Constitution and for strict construction of its original text,  Republicans are effectively seeking to add an exception  to Article II for  when there is a year left in the term of a Democratic president.  No such exception exists, as Justice Scalia himself, our nation’s strongest advocate of the originalist view of the Constitution, would be the first to recognize.  The current Republican obstructionism violates their sworn duty to uphold the Constitution and flatly contradicts their alleged adherence to a strict and literal interpretation of it.

Tell Senators: Give Fair Consideration to the Next Supreme Court Nominee

By refusing to even consider confirming a new justice, Senate Republicans are putting partisanship above the Constitution. Tell Senate Republicans to fulfill their constitutional obligation of giving fair consideration to the president's nominee.

PFAW Statement on the Passing of Justice Antonin Scalia

In response to the passing of Justice Antonin Scalia, People For the American Way President Michael Keegan issued the following statement:

“Like all Americans, we are saddened by the passing of Antonin Scalia. Although our views on the law differed greatly, no one can doubt that Justice Scalia possessed a brilliant intellect and a profound love of our Constitution.  Americans of every stripe should be grateful for his service to our nation.  Our thoughts are with his family during this difficult time. We look forward to working with President Obama and the Senate to confirm another jurist to fill Justice Scalia's very large shoes on the Supreme Court.”

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 Praises Nomination of Abdul Kallon, Will Be First African American from Alabama on 11th Circuit

People For the American Way today praised President Obama’s nomination of Abdul Kallon to serve on the 11th Circuit Court of Appeals. When confirmed, Judge Kallon, who currently serves on the United States District Court for the Northern District of Alabama, will be the first African American judge from his state to serve at the federal appellate level.

Judge Kallon is a well-qualified nominee who received broad bipartisan support when he was confirmed to his current seat. The Senate should move quickly to process his nomination,” said Marge Baker, Executive Vice President at People For the American Way. “In addition to being an historic nominee, Judge Kallon’s confirmation will fill a judicial emergency that’s been empty since 2013. This nomination is an excellent opportunity for the Senate to show that it can move past partisanship and gridlock in order to keep our courts working.

In 2009, Judge Kallon was unanimously confirmed by the Senate as a District Court judge and had the support of both his home state senators. At his confirmation hearing, Senator Jeff Sessions, then ranking member on the Judiciary Committee, praised Kallon’s “impressive legal credentials” and spoke of the Alabama legal community’s high respect for his “integrity and judgment and legal ability.

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.

PFAW Statement on SCOTUS Stay of Carbon Rules

In an order issued this evening, the Supreme Court’s conservative bloc stayed implementation of rules on carbon emissions issued by the Obama administration last year. People For the American Way Executive Vice President Marge Baker issued the following statement:

“Today’s action by the Supreme Court is just the latest example of the willingness of the Court’s conservative wing to use its power to implement its own particular ideological agenda. On the environment, as with so many other issues, partisanship is trumping the rule of law in our nation’s highest court.

“Regardless of the outcome of this particular case, this action underscores the plain fact that the Supreme Court will be on the ballot in the 2016 election. During the next president’s term, four justices will be in their eighties, and the high possibility of retirements means that voters have the chance to pull the Court back from it’s dangerous lurch towards GOP orthodoxy—or to hand our judicial system over to a far right ideology for decades. In either case, the impact of this next election won’t affect our nation for four years; it will shape our country for a generation.”

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Supreme Court Goes Back to Work in January and Shows Again Why Election Day is Judgment Day

This piece originally appeared in the Huffington Post.

After a Holiday break, the Supreme Court returned to a full schedule of arguments and other activity in January. The crucial oral argument before the Court this month in Friedrichs v. California Teachers Association, as well as several cases that the Court agreed to review later this year, again show that on a variety of important issues, the Court has enormous influence but is closely divided. With the president elected in November likely to select as many as four new Supreme Court justices beginning as early as next year, the person we elect as president will be critical. That’s why Election Day 2016 will be Judgment Day for the Court and our rights and liberties.

Friedrichs is the latest battle in what the New York Times has called the “war on workers” and unions being waged by Justice Alito and other conservatives on the Court. A primary target of that war has been a decision almost 40 years ago inAbood v. Detroit Board of Education. In that case the Court determined that although workers cannot be forced to join a union or contribute to its political activities, since that would violate their First Amendment rights, they can be required to help pay for the costs of collective bargaining and related activities from which they benefit even if they are not union members. That solution to what would otherwise be a “free rider” problem is crucial to the ability of unions to effectively represent the interests of workers.  Even though a unanimous Supreme Court recognized the principle of Abood as recently as 2009, subsequent 5-4 decisions written by Justice Alito have criticized that ruling and effectively invited attempts to overturn it. That is exactly what the plaintiffs in Friedrichs, a small group of California teachers, are attempting to do, claiming they should not have to join or pay “fair share” costs to the state teachers union and that Abood should be overturned.

The justices’ comments at the oral argument made clear that the conservative 5-4 majority remains hostile to unions and Abood, and may well be prepared to overrule it this year. (As usual, Justice Thomas did not speak at the argument, but his negative views in this area have been made clear in past opinions). Particularly troubling were some comments by Justice Kennedy, who is often the “swing” vote on the Court, but in this case maintained that “free riders” are really “compelled riders” who, he claimed, are forced to support unions on “issues on which they strongly disagree.” Regardless of the merits of that claim, on which many have disagreed, it strongly suggests that there may now be five votes to overturnAbood, with disastrous consequences for unions and workers.

It is impossible, of course, to predict the precise outcome of a Supreme Court case based on the oral argument, and the Court could issue a decision that does not completely overrule Abood. The Court could send the case back to a lower court for specific fact-finding on issues like the impact of eliminating “free rider” payments on unions, as was suggested at one point in the argument, or could limit its holding to the specific case in California. Particularly if the Court chooses one of those alternatives, the question of who will replace older justices like Kennedy, Ginsburg, and Scalia when they retire will be critical. That is why the election in November of our next president, who will nominate such replacements, is crucial for the Court and workers’ rights. Even an outright overruling of Abood could be softened or revisited, but only if a progressive president is elected and selects more progressives Justices for the Court.

During January, the Court also agreed to review several important cases on other subjects this year. The case that has generated the most controversy is United States v. Texas, where lower courts have put on hold the president’s executive orders on immigration that would defer deportation enforcement against millions of undocumented immigrants who have children who are citizens or legal permanent residents and would be able to apply for jobs and stay in the U.S. for three years.  Twenty-six states led by Texas filed the challenge, and the huge partisan divide on the question almost guarantees that it will be an election issue this fall. The most extreme Justices on the Court (Scalia, Alito and Thomas) have voted against virtually every significant Obama initiative that has come before the Court, and the Court’s decision to add a question for the parties to address - whether the Obama order is consistent with the Constitution’s language that the president should “take care” that federal laws be “faithfully executed” -- suggests deep skepticism by some of the justices. The decision itself could have a huge impact not only on this specific issue, but also on the ability of a future progressive president to take other executive action in the face of a recalcitrant Congress. However this case is decided, there is also little question that these issues will return to the Court in 2017 or later, and the views of the president who will appoint future justices will be crucial to the results. 

The Court also decided in January to review several other important cases this year. In one, the Court has been asked to decide whether a state constitution can more strictly separate church and state than the increasingly conservative Supreme Court has and can prohibit any direct state financial aid to religious institutions. Thirty-five states have such constitutional provisions, and the Court is very divided on such religion issues, which are very likely to come up in the future as well. And in another big business vs. consumers case, the Court will consider what must be proven to prosecute someone for illegally using inside company information for stock or other trading. This issue has divided lower courts, one of which has adopted a narrow interpretation that has dealt a significant setback to the efforts of Manhattan U.S. Attorney Preet Bharara to crack down on insider trading in the $3 trillion hedge fund industry. The Court is likely to be divided on this issue as well.

The Court’s decisions in both these cases later this year will be important in and of themselves. But they are also very unlikely to be the last word on the significant big business, consumer, and religion issues they raise. The fact that these and other crucial issues will be decided by this divided Court in the future, and the fact that four justices on the current Court will be over 80 in the next president’s first term, is what makes the identity of the president who will appoint future justices so important. Statements this month by both Democratic and Republican candidates show that, even as they also discuss other issues, they clearly recognize the importance of the election for the future direction of the Court. In short, Election Day 2016 truly is Judgment Day for the Supreme Court and for all of our rights and liberties.

PFAW

Divided Supreme Court Issues Good Decision in Important Class Action Case

On Wednesday of this week, in an important case on class actions previewed last September by PFAWF, the Supreme Court handed down a good ruling for consumers concerning class actions. This was an unusual development for the Roberts-Alito Court, which has generally gone along with big business efforts to limit class actions as an important remedy. This time, although Roberts and Alito (and Scalia) dissented, six justices led by Justice Ginsburg rejected a corporation’s effort to hurt consumers.

Class actions are a crucial type of lawsuit that allows consumers and others with relatively small individual claims to band together and seek large amounts of damages to help hold corporations accountable for wrongdoing. In this case, Campbell-Ewald Co. v. Gomez, the corporation had violated federal law by sending unwanted telephone solicitations to some 100,000 people. Jose Gomez got one of those solicitations and filed a lawsuit, asking  for the maximum statutory remedy for himself of $1500 but also seeking to bring a class action on behalf of the tens of thousands of other people who received the unwanted solicitations. The corporation tried to end the suit by offering to pay Mr. Gomez  his $1500 and then arguing that its offer ended the lawsuit and the basis for the class action.  If allowed, that would give corporations an easy and inexpensive way to prevent most class action lawsuits.

The Supreme Court rejected the corporation’s ploy in a 6-3 vote. As Justice Ginsburg explained, if a plaintiff like Mr. Gomez rejects an offer, even if it is for the maximum amount that could be recovered individually, the case remains alive and able to be pursued  as a class action.  Chief Justice Roberts, joined by Justices Alito and Scalia, dissented and argued, as they usually do, that the corporation should prevail , since it was willing to give Mr. Gomez “everything he asks for.” As Justice Ginsburg explained in response, that “would place the defendant in the driver’s seat”, improperly allowing corporations to spend minimal amounts to pay off individual plaintiffs and forestall class actions.

This decision will not remedy the damage that the Roberts-Alito Court has previously done, and could well do in the future, to limit class actions and harm consumers. And the Court left open the question of whether a corporation can stop a class action by formally placing the full amount of an individual’s claim in an account and getting a lower court to rule for the individual and dismiss the class action claim. This loophole should be closed by the Court, as the New York Times explained, to “protect what remains of the class action from the unrelenting efforts of business to undermine it.” At least in this case, however, even Roberts and Alito could not muster the votes needed to further harm consumers and help big business.

PFAW Foundation

Dolores Huerta, PFAW Respond to SCOTUS Decision to Hear DACA+, DAPA

In response to the Supreme Court’s decision to review the expanded Deferred Action for Childhood Arrivals (DACA+) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), People For the American Way board member and civil rights legend Dolores Huerta stated:

“The Supreme Court made the right decision today to give millions of immigrant children and families, who are suffering greatly because of the threat of deportation, their day in court. By following the law and upholding DACA+ and DAPA, the Court can protect millions of immigrant children and parents from the threat of deportation. These actions fall well within President Obama’s Constitutional powers, and the Republican governors promoting this lawsuit are trying to use the courts to push a political agenda. The United States should not be in the business of separating families or deporting parents from their children. That’s shameful, and I hope the Supreme Court will do the right thing by upholding DACA+ and DAPA.”

People For the American Way President Michael B. Keegan added:

“This case is a powerful reminder of the importance of the Supreme Court—and that the future of the Court is at stake in 2016. In this case, the Justices have a choice between following the Constitution or pushing an extreme ideological agenda. Over the last ten years, we’ve seen too many cases in which they’ve put politics above the law. Upholding the president’s actions should be an easy call, but thanks to the far-right bloc on this court this program may well come down to the views of a single justice. When voters go to the polls in 2016, they should remember that they’re not just selecting a president to serve for four years; they’re choosing the next justice who could shape the court for a generation. The future of immigrant families and so many others could be determined by whether Americans choose to pull the Court back from the extremism of the last decade or allow the GOP and its right-wing allies to capture the Court for the foreseeable future.”

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PFAW Applauds White House Announcement of Judicial Nominees

President Obama today nominated two judges to serve on the Seventh Circuit Courts of Appeals. The nominees, from Wisconsin and Indiana, will fill seats that have been vacant since January 2010 and February 2015 respectively.

Marge Baker, Executive Vice President at People For the American Way, issued the following statement:

“President Obama should be applauded for moving forward with the nomination process in the face of years of Republican obstruction. Americans are sick and tired of gridlock in Washington. Our elected officials were sent here to do a job, and it’s time for them to put aside petty political disagreements and actually do it. In this case that means moving expeditiously to hold hearings and then votes on the individuals nominated by President Obama.

“Since 2009, Republicans have used every tool at their disposal to slow walk and delay the confirmation of qualified judicial nominees. That obstruction hasn’t always made the headlines, but it has had a profound impact on the lives of ordinary Americans who deserve to have their day in court. Vacancies in our judicial branch slow the administration of justice and harm individual people and small businesses who can’t wait years to have their cases resolved. President Obama’s decision to nominate these individuals is an important step forward. Now it’s up to Senate to respond in kind.”

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PFAW Statement on Senate Confirmation of Luis Restrepo

Today, more than a year after being nominated by President Obama, Judge Luis Restrepo was confirmed to the United States Court of Appeals for the Third Circuit. Today’s vote followed months of needless delays by Senate Majority Leader Mitch McConnell, assisted by Senator Pat Toomey of Pennsylvania and Senate Judiciary Chairman Charles Grassley.

“Americans of every stripe should be glad that Judge Restrepo was confirmed today. He will be a true asset to the Third Circuit Court of Appeals. But Senate Republicans should be embarrassed about how they’ve played politics with the courts for months on end,” said People For the American Way Executive Vice President Marge Baker. “Judge Restrepo was nominated with bipartisan support from his home state senators, but at every turn Republicans delayed and dragged their feet, saying one thing and doing another. Not a single senator raised any concerns about Judge Restrepo’s fitness for the bench—this was anti-Obama politics plain and simple. If Americans need another example of who’s causing gridlock in Washington, the expanse of time that it took us to get to this vote is a perfect example.”

Upon today’s vote, Restrepo becomes the second Latino judge ever to serve on the Third Circuit and the first from Pennsylvania.

Today’s vote comes during an period of historic obstruction of judicial nominees in the Senate. Since Mitch McConnell became majority leader in January 2014, the number of current circuit and district court vacancies has climbed from 40 to 71 today, a nearly 80% increase. Despite Restrepo’s confirmation, the current Senate’s confirmation rate remains far behind that of Democrats who controlled the body during the last two years of President Bush’s term eight years ago.

“During the long wait for Judge Restrepo’s confirmation, yet another vacancy has opened up on the Third Circuit,” said Baker. “If Republicans decide to start caring about the ordinary people they purport to represent, moving expeditiously to fill that vacancy, among others, would be a reasonable place to start.”

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PFAW Hosts Briefing & Rallies at the Supreme Court for Workers’ Rights Case

Just hours after the Supreme Court heard oral arguments this morning in a case that will likely have a profound impact on the rights of working people, Friedrichs v. California Teachers Association, People For the American Way hosted a member telebriefing to help unpack what’s at stake in the case.

On the call, PFAW Senior Fellow and constitutional law scholar Jamie Raskin explained that at issue in Friedrichs are “agency fees” that allow the costs of collective bargaining and other union benefits to be shared by all public sector employees rather than by union members alone. Attacking this practice amounts to “a broad-based assault on public sector unions,” Raskin said.

PFAW Executive Vice President Marge Baker situated the case within the context of the Roberts-Alito Court’s pro-corporate record, where the high court has consistently privileged the interests of corporations over the rights of individual people, such as in the Citizens United decision.

“Workers have a right to stand up for themselves” and to “represent their own interests,” Baker added.

Before the telebriefing, PFAW staff and supporters were at the Supreme Court demonstrating in support of the rights of working people as the justices heard arguments in the case.


You can listen to the full telebriefing below, and read affiliate PFAW Foundation’s new report on “Corporations, Unions, and Constitutional Democracy” here.

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PFAW

New Report Examines Supreme Court’s Ideological Agenda for Corporations and Unions

A new report released today by People For the American Way Foundation explores how the Supreme Court’s extreme pro-corporate agenda over the years has been matched by increasingly dangerous attacks on working people.

Corporations, Unions, and Constitutional Democracy” by PFAW Foundation Senior Fellow Jamie Raskin explores how the Roberts Court’s right-wing majority has established a precedent for privileging corporations over individuals, while at the same times twisting First Amendment doctrine to undermine the right of workers to band together to win fair treatment in the workplace.

“In recent years, we’ve seen an increasingly extreme pro-corporate agenda from the Supreme Court, most notably in Citizens United,” said Marge Baker, Executive Vice President at People For the American Way Foundation. “What hasn’t received as much attention is the Court’s relentless attacks on working people. Today, the Friedrichs case represents the most deliberate attempt yet to replace the Court's longstanding precedent with an ideological pro-corporate agenda."

As Raskin writes in the report:

“The First Amendment has become the fulcrum of major constitutional decision-making related to both corporations and unions. It is the magical source of the unprecedented new political rights and powers conferred on corporations by Citizens United. It is also the putative basis of legal and juridical attacks on unions and their right to collect agency fees from workers they represent. It will be the terrain of struggle over growing efforts to grant dissident shareholders opt-out rights and objector rebates equivalent to what union objectors enjoy today.”

Raskin, who serves as a constitutional law professor at American University Washington College of Law and a Maryland State Senator, in addition to his role as PFAW Foundation Senior Fellow, is available to discuss the report and the Supreme Court’s recent decisions. Please contact media@pfaw.org to schedule an interview.

You can find the full text of the report at: http://www.pfaw.org/media-center/publications/corporations-unions-and-constitutional-democracy-when-it-comes-politics-ro

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Corporations, Unions, and Constitutional Democracy: When It Comes to Politics, the Roberts Court Makes Corporations Strong and Unions Weak

Corporations and unions are fundamentally dissimilar, but conservatives in Congress and on the Supreme Court have tried to equate them in an attempt to enlarge corporations' political rights. This equation has sunk into our legal, political, and social consciousness, weakening the sense of unions as organic democratic institutions while aggrandizing the political power of CEOs of large companies.

Hillary Clinton Lays Out Her Vision For the Supreme Court

In an op-ed today in the Boston Globe, former Secretary of State Hillary Clinton takes on what may be the biggest issue at stake in the 2016 election: the future of the US Supreme Court.

The court’s decisions have a profound impact on American families. In the past two decades alone, it effectively declared George W. Bush president, significantly weakened the Voting Rights Act, and opened the door to a flood of unaccountable money in our politics. It also made same-sex marriage legal nationwide, preserved the Affordable Care Act not once but twice, and ensured equal access to education for women.

On Election Day, three of the current justices will be over 80 years old, which is past the court’s average retirement age. The next president could easily appoint more than one justice. That makes this a make-or-break moment — for the court and our country.

That’s true. As People For the American Way recently laid out in our Judgment Day report, virtually every single important issue—from voting rights to guns to reproductive freedom to workplace fairness to the environment and beyond—will be at stake before the Supreme Court. And because the Justices most likely to retire in the next few years come from both sides of the bench, our country has the opportunity to pull the Court from its dangerous rightward lurch of the last decade—or to solidify a far-right majority for a generation.

But just as important as preventing the next president from appointing more Justices in the mold of Scalia, Thomas and Alito, we need to elect a President who will appoint extraordinary jurists who understand the profoundly progressive nature of our constitution. In her op-ed, Senator Clinton lays out what that looks like.

As president (and a lawyer and former law professor), I’ll appoint justices who will protect the constitutional principles of liberty and equality for all, regardless of race, gender, sexual orientation or political viewpoint; make sure the scales of justice aren’t tipped away from individuals toward corporations and special interests; and protect citizens’ right to vote, rather than billionaires’ right to buy elections.

Secretary Clinton isn’t alone in laying out a progressive vision for the Court. Senator Bernie Sanders has spoken repeatedly about the Supreme Court’s decision in Citizens United and how we need to "overturn this disastrous decision.”  And Governor Martin O’Malley has promised to “appoint judges who don't think corporations are people.”

All of this is good news for progressives—and why People For the American Way has been pushing so hard for more conversation about the importance of the Supreme Court as we head into the 2016 election. But it’s not enough.

In the coming weeks and months we’ll continue to push candidates of both parties to make clear what kind of judges they’d appoint to our nation’s highest courts, because, as Secretary Clinton says, “There’s a lot at stake in this election. Nowhere is this clearer than in the US Supreme Court.”
 

PFAW
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