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.
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.
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.
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.”
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.
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.
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.”
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.”
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.”
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.
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 email@example.com 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
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.”
To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: December 21, 2015
Re: 2015: A Year of GOP Obstruction for Judicial Nominees
With the Senate having closed up shop for the year, one thing is clear: the Republican majority has failed miserably in carrying out one of the most important jobs entrusted to the Senate by the U.S. Constitution: confirming judges.
Courts are the infrastructure of justice, just as important to our constitutional rights as roads and bridges are to transportation. Either in spite of this or because of this, Senate Republicans have abused their position in the majority to stymie President Obama’s efforts to put qualified people on our nation’s federal courts. In so doing, they are weakening the entire third branch of the United States government.
Failing to confirm judges has never been the norm even when the Senate and the White House are held by different parties. A useful basis of comparison is George W. Bush’s final two years in office, when Democrats took over the Senate after the 2006 midterms. In 2007, the first year as the majority, the Democratic Senate confirmed 40 of President Bush’s circuit and district court nominees (with a total of 68 by the end of 2008). In stark contrast, the McConnell Senate confirmed only 11 judges this year.
The figure below shows the stark difference in the pace of confirmations under today’s Republican-controlled Senate as compared to the Democratic-controlled Senate of Bush’s last two years.
Another way of contrasting how seriously Senate Democrats took their job in 2007-2008 versus the attitude of Republicans today is to track the number of vacancies. Judicial vacancies open regularly and predictably, since judges usually announce their intent to retire or go into semi-retirement up to a year in advance. Just to keep the number of vacancies at an even level requires that several new judges be confirmed each month.
At the beginning of 2007, there were 56 circuit and district court vacancies. Throughout the next two years, the number of vacancies generally remained at 50 or fewer, getting as low as 34 in the early fall of 2008. Because an unusually high number of vacancies opened up after Election Day, that number climbed back to 55 by Inauguration Day, but even with that increase, the number of vacancies ended up at about what it had been two years earlier.
Today, in stark contrast, the number of circuit and district court vacancies is climbing, from 40 at the beginning of the year to 62 today, a nearly 60% increase.
We see the same thing with judicial emergencies, a formal designation assigned by the Administrative Office of U.S. Courts for vacancies where the caseload per judge is so high that it endangers access to justice. Judicial emergencies have skyrocketed from 12 at the beginning of the year to 31 today. As the chart below shows, Democrats in the Senate during Bush’s last two years did not allow the number of judicial emergencies to increase in a similar fashion, and in fact the number generally remained steady or decreased during most of those two years.
The endeavor to sabotage our nation’s judiciary involves multiple senators playing different roles. Most prominently, no confirmation vote is scheduled unless Majority Leader Mitch McConnell agrees to it. When nominees fully vetted by the Judiciary Committee languish on the Senate floor for month after month after month, with no reason for the delay, that is because Senator McConnell wants it that way. Every nominee confirmed this year was forced to wait inordinately long after committee approval for a vote, even though they had strong bipartisan support and, in almost all cases, had no opposition whatsoever.
4/13: Alfred Bennett, TX: 46 days
4/20: George Hanks, TX: 53 days
5/21: Jose Olvera, TX: 84 days
5/21: Jill Parrish, UT: 84 days
7/7: Kara Stoll, Fed Cir: 75 days
9/8: Roseann Ketchmark, MO: 138 days
10/5: Dale Drozd, CA: 123 days
10/20: Ann Donnelly, NY: 138 days
10/26: Lawrence Vilardo, NY: 144 days
11/16: LaShann Hall, NY: 165 days
12/7: Travis McDonough, TN: 151 days
And now, the Senate has left town without voting on 13 fully vetted circuit and district court nominees. Five have been waiting three months or more since committee approval, two of them since July. All were approved by the Judiciary Committee unanimously. Eight are women or people of color, and nine would fill judicial emergencies.
(Also denied floor votes are five nominees for the Court of Federal Claims and one for the Court of International Trade, all approved without opposition by the Judiciary Committee last year in the previous Congress and then again in February in the new one.)
Iowa’s Chuck Grassley, chairman of the Judiciary Committee, also plays a key role in the obstruction. Senator Grassley held only eight confirmation hearings for circuit and district court nominees this year, not nearly enough to process the available nominees. In part because of that slowdown, nominees this year have tended to wait much longer than necessary for their hearings … unless they happen to be Grassley’s hand-picked judges from Iowa. He also routinely delays without explanation committee votes that he himself called … again, except for Iowa nominees and those lucky enough to be grouped with them. Grassley chose to let the Senate end the year without holding a hearing for five long-waiting nominees: One was nominated in February, two were nominated in July, and two were nominated in September, more than three months ago.
Of particular note are those Republican senators who get great local press for saying good things about nominees from their states … but who, behind the scenes, collaborate with party leaders’ efforts to obstruct those very nominees. Perhaps no one exemplifies this more than Pennsylvania’s Pat Toomey, who simultaneously praised and helped block L. Felipe Restrepo, President Obama’s nominee for the Third Circuit Court of Appeals. Restrepo was nominated in November of 2014 with the support of Toomey and Democrat Bob Casey. He could have been confirmed long ago. Unfortunately, Toomey cooperated with Senator Grassley’s efforts at delay, so that Restrepo didn’t get a hearing until seven months after his nomination. Then, even though Restrepo was approved unanimously by the committee in July, Senator Toomey collaborated with his party leadership’s plans to delay a floor vote for as long as possible. Facing increasingly critical in-state press and disappointed constituents, Toomey finally made a public statement in early December calling for a vote, then meekly stood by when Senator McConnell – with no explanation – announced that Restrepo would not get a vote until January 11, more than a month later.
As if Republicans hadn’t already injected enough partisanship into the process, they floated a plan in December to politicize the judicial confirmation process even more for last-minute year-end confirmations. Specifically, they pushed a plan to skip over blue-state nominees in favor of red-state nominees who had been waiting less time for a vote. Recall that every one of these nominees had cleared the Judiciary Committee unanimously, so there was no disagreement on their qualifications. (Ultimately, Democrats prevented them from carrying out this plan.)
Next year may be even worse, as Senate Republicans go to even more extremes to keep judicial seats vacant so that a Republican president (they hope) can fill them in 2017.
This year shows that even when Republicans agree with Democrats that particular nominees are highly qualified to fill critically important positions in our nation’s judiciary, the GOP regards moving the confirmation process along as a major concession to the Democrats. Our nation deserves better.
What we deserve are home-state senators who don’t work to block qualified nominees from having committee hearings. We deserve a Judiciary Committee chairman who gives nominees an opportunity to be questioned about their qualifications and face a vote by committee members. And we deserve a Senate Majority Leader who promptly schedules confirmation votes for fully vetted nominees.
In other words, we don’t need a repeat of 2015.
In an interview with influential social conservative commentator Robert George on the Catholic television network EWTN last month, Sen. Ted Cruz, R-Texas, said that the president should defy the Supreme Court’s “fundamentally illegitimate” decision striking down bans on same-sex marriage, which he compared to “Nazi decrees.”
George, the co-founder of the National Organization for Marriage and a mentor of Cruz’s, likened the court’s “tragic mistake” in Obergefell to infamous Supreme Court decisions including Dred Scott, asking Cruz, “Was Lincoln right to defy the court on [Dred Scott] and would you, as president, do that with the Obergefell decision?”
“Lincoln was absolutely right, I agree with President Lincoln,” Cruz responded. “And courts do not make law. That is not what a court does. A court interprets the law, a court applies the law, but courts don’t make law.”
Saying that it is “profoundly wrong” to refer to the gay marriage decision as the law of the land, Cruz said, “I think the decision was fundamentally illegitimate, it was lawless, it was not based on the Constitution.”
Cruz then brought up remarks that Justice Anthony Kennedy made recently at Harvard Law School, in which he discussed when it is the duty of public officials to resign rather than carry out laws that they think are unjust, such as in the case of opponents of marriage equality. Kennedy used the extreme example of judges who resigned under Nazi rule, saying that whether they can morally carry out their official duties is “a fair question that officials can and should ask themselves” and that “great respect … ought to be given to people who resign rather than do something they think is morally wrong in order to make a point.”
This, Cruz declared, amounted to Kennedy comparing “the Supreme Court of the United States to the Nazis.”
“This isn’t me calling them the Nazis,” he said, “this is Justice Kennedy calling the court on which he serves, calling the opinion that he wrote, analogizing that to the Nazi decrees that we must obey.”
George interjected: “Just to be clear, surely Justice Kennedy was not embracing Nazism.”
Cruz hesitated and smiled. “He drew the analogy,” he said, “and the obvious implication was just as you were forced to obey the Nazis, you’re forced to obey us as well … even if we are tyrannical and oppressive. Now, look, certainly he wasn’t embracing all of the horrible things the Nazis did but to make that analogy, that is essentially saying, we wear the jackboot and you must obey us.”