Fair and Just Courts

PFAW Targets Sen. Pat Toomey for Supreme Court Obstruction with Robocalls from Alfre Woodard

In a robocall released today by People For the American Way, award-winning actress Alfre Woodard calls Pennsylvania voters urging them to contact Senator Pat Toomey (R-PA) and demand that he give fair consideration to President Obama’s Supreme Court nominee. As the call states, Sen. Toomey has declared that he won’t fulfill his constitutional duty and instead falsely asserts it’s “not that big a deal” if the Supreme Court vacancy lasts for over a year.

“Sen. Toomey’s irresponsible obstruction is inexcusable,” said Marge Baker, Executive Vice President at People For the American Way. “The Constitution is very clear that it’s the job of Senators to give fair consideration to Supreme Court nominees, and there’s certainly no exceptions during election years. Not only is it a ‘big deal’ if Sen. Toomey and his fellow Republican Senators refuse to do their jobs, it’s a crisis of constitutional proportions.”

This is the second set of robocalls that PFAW has launched on this issue. In February, Martin Sheen called Wisconsinites targeting Sen. Ron Johnson (R-WI) for his obstruction on the Supreme Court vacancy.

Listen to the call here: 



A transcript of the recording for today’s Pennsylvania calls reads:

Hi, this is Alfre Woodard, calling on behalf of People For the American Way.

When there’s a vacancy on the Supreme Court, the Constitution is clear about what happens next: the President nominates a new Justice and the Senate gives that nominee fair consideration.

But Republicans, including Senator Pat Toomey, are playing politics with the law and saying they won’t fulfill their constitutional obligation. Toomey even said it’s “not that big a deal” to leave the ninth Supreme Court seat empty for more than a year!

He couldn’t be more wrong.

Call Senator Toomey at (202) 224-4254, 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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Federalist Society VP Says Senate Could Ignore SCOTUS Nominees Indefinitely

During the administration of George W. Bush, the Federalist Society helped the administration fill the federal courts with judges who embrace a right-wing legal ideology. Back then, group leaders criticized Democratic senators for filibustering some nominees. But at the Conservative Political Action Conference (CPAC) last week, a senior Federalist Society staffer praised Republican Senators who have refused to even give a hearing to a nominee for the Supreme Court seat left vacant by the death of Justice Antonin Scalia  and suggested that if a Democrat is elected president this year, the Senate could continue its obstructionist blockade through the next administration.

The Federalist Society has often portrayed itself as a polite debating society and downplayed the important and destructive role it has played promoting far-right legal theories as well as judges and political officials who can turn that ideology into public policy. The Federalist Society’s influence reached a pinnacle with the nomination of Supreme Court Justice Samuel Alito, an ideological warrior with deep roots in the right-wing legal movement. Alito, whose nomination was shepherded through the Senate by the Federalist Society’s Leonard Leo, has returned the favor as a justice, helping raise money for the Federalist Society and other right-wing groups, and becoming the single most pro-corporate justice on the most pro-business Supreme Court since the New Deal.

Dean Reuter, vice president of the Federalist Society, led a brief workshop at CPAC with John Yoo, a law professor and author of the infamous “torture memos” while working at the Justice Department during the George W. Bush administration. Reuter and Yoo are co-editors of “Liberty’s Nemesis: The Unchecked Expansion of the State,” published last month. The book focuses on the growth of the administrative state, but Reuter began by addressing the dispute between the White House and Senate Republican leaders who have declared that they will refuse to even consider a Supreme Court nominee this year.

Reuter said it was the Senate’s duty to act as a check on executive power.

But I’m happy to report that the law and the Constitution are on the Senate’s side here. The president surely does have a duty to nominate someone, but the Senate has a co-equal duty as a co-equal branch of government to, in this case, operate as a check. It doesn’t have any responsibility or any duty to host one-on-one meetings with the nominee, or hold a hearing, or hold a committee vote or a floor vote. There’s no timetable. It’s not as if the president sends somebody over and says, we need this back next month, or next Wednesday, or whatever.

So the Senate is perfectly well within its prerogative, even the proper understanding of checks and balances, it can easily be said that the role of the Senate is to check the president’s power in this instance, the appointment power, especially I think when you’re dealing with a third branch of government and a lifetime appointment.

It’s not the president appointing the secretary of the Department of Commerce, it’s the president making an appointment to an independent, third branch of government and the Senate’s entitled to do its full due, which in this case may be not to act.

When asked if the Constitution would support the Senate’s refusal to act indefinitely if a Democrat were elected president, he said:

There’s no time limit in the Constitution. And there’s nothing magical about there being nine justices. The country started out with six justices, we’ve had as many as 10 at some point in time. And as recently as 2010, when Justice Elena Kagan came on the court, she had been solicitor general so she recused herself in over a third of the cases…I don’t see a sense of urgency.

The Federalist Society would undoubtedly experience a different sense of urgency if a Republican were elected president and given the opportunity to put more right-wing activists like Samuel Alito on the court.

PFAW Hosts Telebriefing on Women’s Health Cases at the Supreme Court

Two days after the Supreme Court heard oral arguments in a case about laws that use unnecessary regulations to shut down abortion clinics, PFAW held a member telebriefing on the two cases that may be the most significant for women’s reproductive rights in decades. The second case, which is about access to birth control and is being called “Hobby Lobby Part Two,” will be argued at the Supreme Court later this month.

On the call, actress and advocate Kathleen Turner, PFAW’s Marge Baker, Elliot Mincberg, and Drew Courtney, and the Center for Reproductive Rights’ Kelly Baden discussed what’s at stake in these cases – Whole Woman’s Health v. Hellerstedt and Zubik v. Burwell – as well as the future of women’s reproductive rights.

Turner pointed out that these cases underscore the importance of our courts in keeping unconstitutional attacks in check and protecting women’s liberty and bodily autonomy. Baden went on to highlight the ways in which these attacks harm low-income and rural women in particular, who are least able to travel long distances and pay high price tags for abortion care.

You can listen to the full telebriefing here:

PFAW

New PFAW Report Examines Groups Fighting to Block SCOTUS Confirmation

Today, People For the American Way released a new report examining the role of right-wing groups pushing GOP senators to refuse giving fair consideration to President Obama’s nominee to the Supreme Court, no matter who the nominee may be.

The report profiles four of the most influential groups representing the Religious Right and business interests who have come together to mount a public pressure campaign to convince senators to block whomever President Obama nominates.

  • The Judicial Crisis Network was founded during the George W. Bush administration as the Judicial Confirmation Network with the goal of pushing through the nominations and confirmations of far-right judges to the federal bench.
  • The American Center for Law & Justice, founded by televangelist Pat Robertson often acts as a legal arm for the Religious Right’s attempts to deny liberties to LGBT people, Muslim Americans and others.
  • The Heritage Foundation and Heritage Action have become forces for obstructionism as they pressure Republicans to abandon any attempt at bipartisan cooperation or simple governance.
  • The Family Research Council is working to turn back the clock on social advances for women, LGBT people and religious minorities — something that it hopes a friendly Supreme Court will accelerate.

“Americans expect their senators to do their job and give fair consideration to President Obama’s nominee,” said Marge Baker, Executive Vice President at People For the American Way. “Instead, we’re seeing GOP senators follow the lead of right-wing groups and politicians like Ted Cruz and Donald Trump. That might win favor with Republicans’ right-wing base, but it also highlights the party’s campaign of obstruction and gridlock.”

Read the report here.

For questions about the report or to schedule an interview, please contact Laura Epstein (lepstein@pfaw.org).

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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NH Voters Call on Sen. Ayotte to Give Fair Consideration on Supreme Court Nominee

Today, over 40 New Hampshire activists gathered for a demonstration demanding that Senator Kelly Ayotte stop putting politics over the Constitution and instead give fair consideration to President Obama’s Supreme Court nominee. The demonstration included activists from People For the American Way, NextGen Climate, Granite State Progress, and Rights and Democracy.

“The Constitution is very clear that it is the job of the Senate to give fair consideration to nominees,” said Lindsay Jakows, New Hampshire Campaign Organizer with People For the American Way. “And as a former New Hampshire Attorney General who was herself appointed and confirmed in an election year, Ayotte should know better than to align herself with such blatant hypocrisy. It’s time for her to fulfill her responsibility to Granite Staters and do her job.”

Pictures from today's demonstration:

If you have any questions or would like to schedule an interview, please contact Laura Epstein (lepstein@pfaw.org) or Lindsay Jakows (ljakows@pfaw.org).

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 Hosts Telebriefing on Emergency Supreme Court Vacancy Campaign

As President Obama prepares to put forward a nominee to fill the Supreme Court vacancy, GOP senators have taken a stance of unprecedented obstruction – refusing to even consider any nominee, regardless of their qualifications.

Yesterday People For the American Way hosted a member telebriefing calling out the ways in which Senate Republicans are irresponsibly abandoning their constitutional obligations to give fair consideration to Supreme Court nominees. Executive Vice President Marge Baker and Senior Fellow Elliot Mincberg discussed the crisis of constitutional proportions that Senate Republicans are leading us towards, and what activists can do to push senators to stop playing political games and do their jobs.

Listen to the telebriefing here:

PFAW

Will Grassley Quit as Judiciary Chair?

Here's what we'd see if Senate Republicans applied to themselves their professed rationale for refusing to consider any Supreme Court nominee by President Obama.
PFAW

Unlike Senate GOP, Obama Continues to Do His Job on Judges

The White House continues to make judicial nominations that Senate Republicans should responsibly consider and vote on.
PFAW

PFAW Kicks Off Emergency Campaign to Fill the Supreme Court's Vacancy

Senate Republicans took their partisan obstructionism to an unprecedented, wildly irresponsible level this month – they are flat out refusing to even consider any Supreme Court nominee put forth by President Obama. It’s a blatantly political move that the GOP is trying to justify with nonsense explanations, like “we’ve never confirmed a Supreme Court justice in an election year before” (false), and “the American people should have a say in the selection of the next justice” (they did, when they re-elected President Obama in 2012). As much as they might want to pretend otherwise, Republicans are refusing to do their jobs – and threatening to keep a seat on our nation’s highest court empty until 2017!

But we're not about to let them get away with it. That's why we've launched an emergency campaign to counter the GOP's blockade and fill the Supreme Court's vacancy. PFAW is uniquely qualified to lead this fight. Since the 1980s we've been the national leader in fighting the Right's efforts to pack the courts with extreme right-wing ideologues. And that's exactly what they're trying to do now, by keeping a vacancy on the Court for an entire year and playing politics with our federal judiciary. Republicans are shirking their constitutional responsibility to give fair consideration to a Supreme Court nominee and they must be held accountable. We have a long, tough road ahead of us, but we're not backing down, and we're so grateful to have PFAW members like you on board with us for this historic fight.

SCOTUS rally

Just hours after the death of Justice Antonin Scalia, Republicans made their intentions known: no fair consideration of any nominee put forward by President Obama. So we leapt into action that weekend, mobilizing supporters and activists for an impromptu rally outside of the Supreme Court that has already become the image of the movement, appearing in the New York Times, the Washington Post, the Economist, the Atlantic, and more. We also held a campaign kickoff telebriefing this month for PFAW members across the country, to discuss our strategy for pushing the GOP to back off their unprecedented obstructionism

We're also fighting back by turning up the pressure on Senate Republicans. We teamed up with partner organizations to deliver over 500,000 petition signatures calling for fair consideration of a nominee to Senator Majority Leader Mitch McConnell's Kentucky office. And this week we delivered one million signatures to the U.S. Senate! Americans want to see this Supreme Court vacancy filled, and we're making sure Republicans know that by refusing to consider a nominee, they're going against their constituents.

GOP senators’ refusal to even consider any Supreme Court nominee isn’t just a violation of their constitutional responsibility – it’s also not what their constituents want! Recent polls have shown that a majority of Americans support filling the Supreme Court vacancy, and for some Republican senators, the blockade is already hurting them with voters. We’re working to identify those Senators, and hit them where it hurts: with their constituents. In a robocall we released in Wisconsin this month, activists heard from Martin Sheen about Sen. Ron Johnson’s obstruction of President Obama’s nominee. Sheen asked Wisconsinites to call Sen. Johnson and tell him to put his constitutional duties first, and give fair consideration to whoever President Obama nominates. The robocalls received immediate media attention – exactly what Sen. Johnson doesn’t want. We’re strategizing similar actions for other states where Republican senators are facing tough re-election battles.

PFAW

Sen. Kelly Ayotte Should Fulfill Constitutional Duties or Resign

In response to Sen. Kelly Ayotte standing with the Senate Republicans on the Judiciary Committee who committed yesterday to not hold any hearings for a Supreme Court nominee from President Obama, People For the American Way New Hampshire Coordinator Lindsay Jakows issued the following statement:

“New Hampshire voters elected Senator Kelly Ayotte to fulfill her job duties as laid out in the Constitution. For her to put partisanship above her constitutional obligations by refusing to even hold hearings to consider a Supreme Court nominee is nothing short of a dereliction of duty. If she’s not prepared to fulfill her Constitutional responsibilities, she should resign.”

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: Senate Judiciary Committee’s Blind Obstruction is “Height of Irresponsibility”

WASHINGTON – Today the Republican members of the Senate Judiciary Committee sent a letter to Senate Majority Leader Mitch McConnell making clear that the committee will not hold hearings on any nominee put forward by President Obama. People For the American Way Executive Vice President Marge Baker released the following statement:

“Even for a political party that has made obstruction its usual approach, Senate Republicans’ blind obstruction on this is, in a word, stunning. Announcing that they will not even consider a nominee, no matter their qualifications, before the nominee is even announced, is the height of irresponsibility. If there was any question about whether Republicans on the Judiciary Committee would refrain from ignoring their constitutional duties and pandering to the extremism of their party bosses, that has been put to rest today. We call on all senators to fulfill their constitutional duty and give fair consideration to the nominee to be submitted by the president.”

Recent polling from Fox News found that most Americans (62 percent) believe that the president and Congress should fill the Supreme Court vacancy.

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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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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