“I THINK IN MY MIND I KNOW WHO IT IS”: Trump has “a good sense” of who he plans to nominate to the Supreme Court, according to CNN. CNN reported that Judges William Pryor and Diane Sykes are widely considered to be at the top of his list.
TRUMP NARROWS LIST AHEAD OF “POTENTIALLY NASTY” SCOTUS FIGHT: A Fortune article today listed the top five contenders for the empty Supreme Court seat as Judges William Pryor Jr., Neil Gorsuch, Diane Sykes, Raymond Kethledge, and David Stras. “Sykes is now the overall favorite for two reasons,” reported Fortune. “First, unlike all the current Supreme Court Justices who all went to Yale or Harvard, she did not attend an elite coastal law school—a good thing for her because many Trump supporters want a Justice who is not from the Ivy League. Second, if Trump indeed wants to get someone on the court quickly, Sykes would face an easier confirmation than Pryor Jr.”
Trump met with Pryor on Saturday, and has hinted “he had two favorites on the list of 21, Pryor and Sykes, although there is no indication that he’s made a final decision,” according to The Washington Times.
Both Democrats and Republicans are gearing up for a tough Supreme Court confirmation fight. Reuters reported that the Judicial Crisis Network “has said it will spend at least $10 million on advertising and grassroots efforts to pressure Senate Democrats to back Trump’s nominee.” Nan Aron, president of Alliance for Justice Action Campaign and our sister organization Alliance for Justice, said the high level of public interest in the vacancy will counter the “deep pockets” of the other side.
“I don’t think we’ll need $10 million given the outcry expressed already,” said Aron.
CALLS CONTINUE FOR SESSIONS’ RECUSAL, REJECTION: “Democrats are demanding that Sessions, Donald Trump’s pick to serve as attorney general, abstain from confirmation votes as long as he remains in the Senate — arguing that he shouldn’t be voting for Cabinet officials he will have to oversee as the nation’s top law enforcement official,” Politico reported. Sessions has previously indicated that he will recuse himself from voting on his own confirmation as Attorney General, but a “Sessions spokeswoman declined to respond to questions on whether he could vote for other nominees.”
Six state attorneys general have sent a letter urging the Senate Judiciary Committee to reject Sessions’ nomination for attorney general. According to the Associated Press, the “prosecutors said they had ‘grave concern’ that Sessions would ‘diligently and fairly enforce all laws protective of civil rights, public safety, health and welfare.’” Their letter echoes statements made by Democratic senators who have previously stated their intention to reject Sessions.
CIVIL RIGHTS RECORD CONTINUES TO PLAGUE SESSIONS: Sessions’ “encouraging promises” at his confirmation hearing “cannot erase his often hostile record on civil rights, nor grave concerns about whether he will rise to the toughest challenges of the job” of Attorney General, wrote the USA Today editorial board.
“As the nation marks the birthday of Martin Luther King Jr. on Monday, the future of civil rights in this country will soon rest in the hands of a new president and in large part his attorney general, who must champion the rights of all Americans. President-elect Donald Trump’s choice for that job, Sen. Jeff Sessions, R-Ala., is a troubling one on that score,” the editorial continued.
Sessions’ troubling civil rights record has prompted multiple Democratic senators to reject Sessions, including Sens. Kamala Harris (D-Calif,), Al Franken (D-Minn,), Cory Booker (D-N.J.), and Chuck Schumer (D-N.Y.), reported The Huffington Post. According to Buzzfeed’s Legal Editor Chris Geidner, the Senate Judiciary Committee will consider Sessions’ nomination on January 24th.
TRUMP TEAM PREPS FOR SCOTUS BATTLE: Trump has started meeting with potential Supreme Court candidates – including Judge William Pryor of the Eleventh Circuit, according to Above the Law. Trump has previously vowed quick action to fill the empty Supreme Court Seat, with plans to announce a nominee “within about two weeks” of his inauguration, according to The New York Times.
Newsweek has published short profiles on three of the nominees; William Pryor, Diane Sykes, and Thomas Hardiman. Our sister organization, the Alliance for Justice, has reviewed all of the names on Trump’s short list, and has compiled the records and biographies of those individuals in their Trump Reports.
While Trump meets with potential nominees, his team, “led by Vice President-elect Mike Pence, is gently sussing out what it would take to win enough support in the Senate to fill the vacant seat on the Supreme Court — a surprisingly tough prospect with the threat of a filibuster looming and a quick deadline set by Trump,” reported CNN. Republicans need to sway eight Democrats to meet the 60-vote threshold needed to supersede any filibuster of a Supreme Court nominee.
OBAMA ‘TRANSFORMED’ FEDERAL COURTS: “Republicans cannot wait to begin dismantling President Barack Obama’s accomplishments, but there’s one thing they can’t undo, even with full control of Congress and the White House: his judicial legacy,” Huffington Post reports. Obama won confirmation of 329 judges to lifetime seats and “tilted the partisan makeup of circuit courts,” and he made the courts more diverse. Yet Republican obstructionism has contributed to President-elect Trump’s inheriting another 103 vacancies, according to the article, headlined “How Barack Obama Transformed the Nation’s Courts.”
“While the GOP leaders of the Senate are congratulating themselves for putting politics ahead of the Constitution, they should realize that on their watch judicial emergencies multiplied across the U.S. and many more Americans were denied access to justice,” said Nan Aron, president of our sister organization Alliance for Justice.
“The pernicious dynamics that pervade the Supreme Court and appellate processes have now even infected the district process, creating a judicial vacancy crisis,” said law professor Carl Tobias of the University of Richmond, who tracks judicial nominations.
Huffington Post says Obama sharply increased diversity of the federal judiciary. “For the first time, the majority of appeals court judges are women and minorities,” the publication notes. “Seven states have their first female circuit court judge, and five have their first African-American federal judge. Obama put more Latino, Asian-American and LGBT judges on federal courts than any previous president. The nation got its first Native American female federal judge on his watch.”
“Obama has shattered all records for appointing diverse judges in terms of ethnicity, gender and sexual orientation,” Tobias said. “Forty-two percent of his appointees are women. He also appointed more Asian-Americans in his tenure than all other presidents combined and 10 times as many LGBT judges as any other president.”
SUPREME COURT VACANCY: SCOTUSblog and Bloomberg BNA have articles looking at the record of Raymond Gruender, who is on Trump’s list of potential Supreme Court nominees. CNN, meanwhile, examines the politics of not only Trump’s first selection but also a second selection round, if he gets it, and says that “liberal advocates are hoping that a Democratic show of force on the first nomination serves as a warning to Trump not to put up an uncompromising conservative for a more consequential opening.”
PREPARING FOR AN UNSPARING NOMINATION FIGHT: As President-elect Trump vowed to name a Supreme Court nominee within about two weeks of his inauguration, our sister organization Alliance for Justice warned of an all-out effort by its allies to defeat some of those he might pick. AFJ President Nan Aron told The New York Times, “This could be the biggest fight in the history of Supreme Court nominations.”
Trump’s nominee likely would return the court, now shorthanded with eight justices, to the same kind of philosophical divisions it saw before Justice Antonin Scalia died last year, and with Justice Anthony Kennedy casting a swing vote in a number of key cases. If Trump is faced with a second high court appointment, however, he “could transform American jurisprudence,” according to The Times.
“An entire century of progress could well crumble,” Aron told the newspaper. Trump has spoken publicly, including at a news conference on Wednesday, of picking justices in the mold of archconservative Scalia. Meanwhile, Justice Kennedy is 80 years old and the court’s senior liberal justices, Ruth Bader Ginsburg and Stephen G. Breyer, are 83 and 78, respectively. Other media reporting on Trump’s comments about the court on Tuesday included McClatchy, Reuters, CNN, and Politico. SCOTUSblog, profiling potential nominees, looked at William Pryor here and Steven Colloton here.
CIVIL RIGHTS IS FOCUS ON SESSIONS’ SECOND DAY: Attorney General nominee Jeff Sessions’ record “indicates that we cannot count on him to support state and national efforts toward bringing justice to the justice system,” Sen. Cory Booker, D-N.J., testified before the Senate Judiciary Committee on Wednesday, NPR reported. NPR summed up: “Booker, the first sitting senator to testify against a fellow senator during a confirmation hearing, said Sessions’ record shows he won’t protect people of color, women, LGBT communities, immigrants or voting rights.”
Also testifying against the Alabama Republican’s confirmation were Rep. John Lewis, D-Ga., an icon of the civil rights movement, and Rep. Cedric Richmond, chairman of the Congressional Black Caucus. All three men are African-American, as are three witnesses who testified opposite them in Sessions’ support, including William Smith, the first African-American counsel of the Senate Judiciary Committee. Among other witnesses questioning or decrying Sessions’ civil rights record were leaders of the NAACP and the American Civil Liberties Union.
Related commentary and coverage included New York Times, “[Sen. Chuck] Schumer Will Oppose Confirmation of Jeff Sessions”; Salon, “Jeff Sessions would be a disaster for the LGBT community: Trump’s attorney general pick has spent his career opposing equality at every level”; Dallas Morning News editorial, “Jeff Sessions is wrong for attorney general; he should be rejected”; Newark Star-Ledger editorial, “Booker’s bad manners? Sessions deserves it”; and Ari Berman in The Nation, “Jeff Sessions Claims to Be a Champion of Voting Rights, But His Record Suggests Otherwise: He would be one of the most dangerous attorneys general in modern US history.”
After Day 1 of a two-day hearing on Sen. Jeff Sessions’ nomination as Attorney General, NPR listed these five top takeaways: “Defending his record on race. …Recuse from Clinton investigations. …Condemning waterboarding. …No to a Muslim ban and registry. …[From protestors,] ‘No Trump. No KKK. No Fascist USA.'”
While a grilling of the Alabama Republican was forecast by some, the Senate Judiciary Committee Democrats’ questioning of their colleague was relatively mild. “Democrats rarely offered more than tepid and predictable criticisms,” said a New York Times editorial about Sessions delivering “smooth talk” before the panel. Our sister organization Alliance for Justice (see Gavel Grab) and others have raised concerns about his unraveling hard-fought civil rights and human rights gains if confirmed, and the editorial concluded:
“Mr. Sessions did nothing on Tuesday to dispel the understandable fears that he would stall if not reverse much of that progress. His defense against charges of racism that caused the Senate to reject him for a federal judgeship in 1986 was largely to say it hurt his feelings to be called racist, but his two decades in the Senate provide little hope that he has changed.”
Editorialized The Newark Star-Ledger, “Given his past comments and dubious record, Sessions faces a high bar to earn the public’s trust. He didn’t hurdle it today, by leaving crucial questions unanswered.”
Liberals had hoped for fireworks on Day 1 but saw instead a domination of “senatorial courtesy,” according to CNN. Its report mentioned AFJ President Nan Aron’s view. She “said the hearing showcased the ‘traditional courtesy Senators extend to one another,’ but she said she expected a ‘radically different approach’ for the upcoming Supreme Court hearing. ‘Senator [Dianne] Feinstein is as tough and as committed as they come, and the fate of the Supreme Court will be an important part of her legacy,’ Aron said.” Feinstein is the committee’s ranking Democrat.
On Wednesday, the witness list for Sessions’ second day of hearings was devoted to supporters and detractors, according to a Washington Post blog. The themes of the hearings so far were captured by these New York Times and Washington Post articles. At Slate, Dahlia Lithwick wrote, “True Lies: There was one moment in Jeff Sessions’ confirmation hearing that revealed why so many are so terrified of him.”
SESSIONS’ CONFIRMATION HEARINGS UNDER WAY: The Senate Judiciary Committee began two days of hearings on Tuesday on the Attorney General nomination of Sen. Jeff Sessions, as the Alabama Republican faced a potential barrage of questions about his civil rights record and staunchly conservative views.
“On all the issues and matters covered by the Department of Justice, he’s taken positions hostile to the very mission of the department in its work in civil rights and civil liberties,” Nan Aron, president of our sister organization Alliance for Justice, told US News & World Report for its curtain-raising article. “He will, given what we know about him, roll back the progress made in civil and human rights.”
Sen. Cory Booker of New Jersey and Rep. John Lewis of Georgia, the latter described by The New York Times as a “hero of the civil rights movement,” were planning to testify in opposition to Sessions’ confirmation. Politico reported that the transition team of President-elect Donald Trump had carefully prepared a strategy for Sessions to combat any allegations of racism. And his hearing began promptly on Tuesday despite a late-hour Washington Post article raising questions about whether Sessions had met his disclosure obligations, titled “Sessions failed to disclose oil interests as required, ethics experts say.”
Other coverage on the eve of the hearings included CNN, “Matthew Shepard’s mother blasts Trump AG pick Sessions’ votes on hate crimes law”; Washington Post, “Sessions to press image of tough lawman and independent voice at attorney general hearings”; Mic, “Read Jeff Sessions’ opening statements before his attorney general hearing”; and Mother Jones, “Jeff Sessions Has a History of Blocking Black Judges: ‘The senator has a problem putting African Americans on the federal bench in Alabama.'”
SUPREME COURT VACANCY: From Trump’s list of potential Supreme Court picks, SCOTUSblog profiled Justice Joan Larsen of the Michigan Supreme Court. BuzzFeed examined potential changes in the direction of the court under Trump.
As U.S. senators prepare to question Attorney General nominee Jeff Sessions, a Republican colleague, The Nation has published an essay by Alliance for Justice President Nan Aron comparing him unfavorably to trailblazing former occupants of the office.
The commentary by the head of our sister organization is headlined, “Jeff Sessions Is Just Not in the Same League as Former Attorneys General: From Herbert Brownell to Robert F. Kennedy to Loretta Lynch, attorneys general have upheld the law and fought for justice. Would Sessions?” Her essay begins:
“Amid claims and counterclaims about Senator Jeff Sessions’s record on civil rights, it is important to step back from the clamor and take Sessions’s measure against that of leading occupants of the modern attorney general’s office. No matter their political party, trailblazers at the Department of Justice helped presidents and the nation take major steps forward in establishing civil-rights law and protections. Forward-looking attorneys general, along with outstanding career attorneys, have helped to desegregate schools and universities in the face of harsh resistance; to put an end to Jim Crow laws; and to confront discrimination in our of criminal and civil justice systems. They showed moral conviction with their actions.
“It is only right, then, that senators weighing confirmation of Donald Trump’s nominee in upcoming days ask themselves: Is Jeff Sessions of the moral caliber to stand alongside predecessors who made such great strides in advancing civil rights? We believe the answer is a resounding ‘no.’ Sessions’s unequivocal record of racial insensitivity and hostility to protecting civil rights, and his extreme-right ideology, suggest he would willfully work to reverse the decades of civil-rights progress that Robert F. Kennedy and others who occupied the top Justice Department job boldly set in place.”
AFJ’s opposition to Sessions’ confirmation also was cited in a Yahoo!Finance article, and its advocacy for a delay in his hearings was mentioned by blackpressUSA.com. Meanwhile, Ari Berman wrote at The Nation, “Jeff Sessions Could Return Criminal Justice to the Jim Crow Era”; Slate published an article titled “Bad Law: A look at the terrible things Jeff Sessions did as attorney general of Alabama”; and The New York Times Magazine reported, “A Voter Fraud Case Jeff Sessions Lost and Can’t Escape.”
The Senate Judiciary Committee plans to start two days of hearings on Sessions’ confirmation on Tuesday.
HE REQUIRES ‘A THOROUGH VETTING,’ EDITORIAL SAYS: On the eve of confirmation hearings for President-elect Trump’s Attorney General nominee, a New York Times editorial headline asks, “What Are You Hiding, Jeff Sessions?” The editorial demands a thorough vetting of the Alabama Republican’s record and qualifications and tracks — and links to — a report by our sister organization, Alliance for Justice, and allied groups about glaring gaps in materials he has submitted in reply to a Senate Judiciary Committee questionnaire. The editorial states:
“If anyone requires a thorough vetting, it’s Mr. Sessions, the Republican senator from Alabama who trails behind him a toxic cloud of hostility to racial equality, voting rights, women’s rights, criminal justice reform and other issues at the heart of the Justice Department’s mandate. Yet in their eagerness to act on his nomination, Senate Republicans seem unconcerned that Mr. Sessions, who has made appropriate financial disclosures, has failed to turn over dozens — possibly hundreds — of documents that the committee specifically requests in its standard questionnaire, including transcripts of speeches, interviews, opinion pieces and other public remarks.”
“This sets up the first big test of Democrats’ willingness to push back against Mr. Trump’s radical cabinet picks. Dianne Feinstein, the committee’s ranking Democrat, needs to take the lead in ensuring that Americans know as much as possible about the man who would be the nation’s top law-enforcement official. The attorney general is too important an office, and Mr. Sessions’s views are too extreme — as Republicans themselves saw 30 years ago — to allow his nomination to sail through without a fight.”
Three decades ago, Sessions’ nomination for a federal judgeship failed in the Republican-controlled Senate after a bipartisan committee vote. There was a flurry of news articles and commentary about Sessions’ latest nomination over the weekend, including TIME, “Jeff Sessions Hopes to Escape His History of Racial Controversy at Confirmation Hearing”; CNN.com, “Jeff Sessions faces ‘Washington’s bloodsport”; Daily Beast, “Jeff Sessions Wanted to ‘Drop the Case’ Against KKK Lynching, Attorney Testified”; Washington Post, “Jeff Sessions should have been a tough sell in the Senate, but he’s too nice”; John J. Donohue III and Max Schoening in a New York Times op-ed, “The Grim Reaper of Alabama”; and a New York Times profile, “Jeff Sessions, a Lifelong Outsider, Finds the Inside Track.”
SESSIONS ‘HOSTILE TO EVERY COMMUNITY’ THAT DOJ PROTECTS: Congressional Black Caucus members. Common Cause. And a national coalition of groups fighting to end domestic violence and sexual assault. These are the latest opponents of Sen. Jeff Sessions’ confirmation as Attorney General to get news media coverage in advance of his confirmation hearings next week (from CNN, Huffington Post, and another Huffington Post article, respectively).
“He has been hostile to every community that DOJ is supposed to protect from discrimination,” Indiana Democratic Rep. Andre Carson, a Black Caucus member, told reporters. Karen Hobert Flynn, the Common Cause president, said, “His past statements and actions indicate that if confirmed as attorney general he would fail to fully uphold the Voting Rights Act as it stands today.” Warned the coalition of women’s advocates, “Senator Sessions’ history leads us to question whether he will vigorously seek to ensure that all victims and survivors of gender-based violence, particularly vulnerable populations and those at the margins of society, have access to vitally needed services and legal protections.”
Our sister organization the Alliance for Justice has actively documented decades of gaps in Sessions’ replies to a Senate questionnaire (see Gavel Grab), gaining AFJ mention in recent Daily Beast and Salon accounts. In other coverage, The Washington Examiner blogged about an ad blitz in support of Sessions from the Judicial Crisis Network, and Mark Oppenheimer wrote in a Los Angeles Times commentary about Sessions’ “belief that prosecutors are at a disadvantage, indeed are something of an endangered species, overrun by the vicious defense bar.”
DEMOCRATS DISCUSS COURT NOMINATION APPROACH: A blog of The Washington Post reported, “Democrats stumble toward a Supreme Court strategy,” and a Politico headline said, “Biden: Democrats should give Trump’s SCOTUS nominee a hearing and a vote.” (See an earlier Gavel Grab post about Democratic Leader Charles Schumer’s hard-line remarks.) Meanwhile, Robert Schlesinger wrote at US News & World Report, “The New Supreme Precedent: Republicans rewrote Supreme Court confirmation rules last year – now they have to live with them.”
In The New York Times, Linda Greenhouse said she wished Chief Justice John Roberts had spoken out in his year-end report to say that Senate Republicans’ refusal to fill a Supreme Court vacancy for almost a year “was an unfortunate development that should not be permitted to become the norm.” And at Bloomberg View, Noah Feldman discussed “The Incredible Shrinking Supreme Court.”