Fresh Hope for Garland Nomination?

AP_garland_as_160316_31x13_1600MERRICK GARLAND NOMINATION: Public debate over the long-stalled nomination of Chief Judge Merrick Garland to the Supreme Court has been “reignited” after comments by Republican Sen. Jeff Flake of Arizona, who said that if Hillary Clinton wins the White House on Nov. 8, Republicans should proceed with hearings in the lame-duck session, according to The Washington Post.

In addition, “the new Supreme Court calendar suggests that the remaining eight justices are altering their workload in case they have a new colleague on the bench in January,” the Post said. CNN’s Joan Biskupic, meanwhile, offered an analysis that Clinton, if elected, ultimately might stick with President Obama’s nomination of Garland, which the Republican-led Senate has so far refused to consider.

Biskupic also listed other potential Clinton nominees, including the following: “Sri Srinivasan, an Indian-American who is also on the DC Circuit Court of Appeals; Paul Watford, an African-American on the California-based US Court of Appeals for the 9th Circuit; and Ketanji Brown Jackson, a trial judge on the federal district court in Washington, DC. She would be the first African-American woman justice, as would be California Supreme Court Justice Leondra Kruger, another name raised as a possibility based on her background and credentials.” The Associated Press carried these related articles: “Why It Matters: Supreme Court”; and “Short-handed Supreme Court delays action in 3 cases.”

COMMENTARY ON JUSTICE THOMAS: Supreme Court Justice Clarence Thomas was beginning his second quarter-century on the court this week. A Washington Post commentary by Mark Paoletta was headlined, “Why doesn’t Clarence Thomas get his due? He’s a black man who challenged liberal orthodoxy.” At USA Today, Richard Wolf reported that with Justice Antonin Scalia deceased, if next month’s election brings about a liberal majority, then “That could make Thomas — a happy legal warrior among friends and allies, yet to the public an enigmatic loner — less powerful but more influential for the remainder of his career.”

AFJAC Quoted on Trump Court Picks

An analysis at Huffington Post of the sharply dissimilar Supreme Court justices who would be selected by presidential rivals Donald Trump and Hillary Clinton quotes the Alliance for Justice Action Campaign about Trump’s list of potential picks.

“Collectively, these individuals reflect a radical-right ideology that threatens fundamental rights and legal protections, and that favors the powerful and privileged over everyday Americans, especially those from historically marginalized communities,” AFJAC said. “The list has very little diversity, with only three women, no people of color, and no one who has worked as a public defender or civil rights attorney.”

The Huffington Post analysis was written by Marjorie Cohn, professor emerita at Thomas Jefferson School of Law and former president of the National Lawyers Guild; it was reprinted from Truthout.

Aron: Trump Harassment Brings ‘Bad Memories for Millions of Women’


ARON ON HARASSMENT OF WOMEN: Women’s recent allegations of sexual harassment and assault against Republican presidential candidate Donald Trump “provoke a personal reaction from women,” US News & World reported. (Trump has denied the allegations.) US News quoted Nan Aron, president of Alliance for Justice Action Campaign, to make its point.

“‘I think for women across the country, [Trump’s alleged] misbehavior and malfeasance bring up bad memories for millions of women,” said Aron, who the article noted was also active in pressing for an investigation of then-Supreme Court nominee Clarence Thomas’s alleged harassment of Anita Hill. “It’s not just sexual assault, but every single woman in the country has experienced some form of [harassment]. For women, it resonates. It strikes a chord,” she said.

The article said the allegations against Trump are drawing some comparisons with the Hill episode in 1991. Thomas eventually was confirmed to the Supreme Court, where he now sits.

Could ‘Constitutional Crisis’ Be Ahead in Court Nomination Standoff?

CapitolflagSUPREME COURT NOMINATIONS: Sen. John McCain, R-Ariz., delivered what “is almost certainly an honest account of what Republicans plan to do — that is, create a constitutional crisis should Hillary Clinton win the presidency and the GOP retain control of the Senate,” by blockading any Clinton nominee to the Supreme Court, Scott Lemieux wrote for The Week.

McCain’s remarks on Monday (see Gavel Grab) were walked back by his Senate office, but some commentators including Lemieux have insisted he actually revealed a true plan. At Slate, Mark Joseph Stern mentioned McCain in condemning the Senate GOP blockade to date of the nomination of Chief Judge Merrick Garland for the high court; “It is difficult to overstate the violence that this blockade has done to truly fundamental norms of American democracy,” Stern wrote. Might the Senate consider his nomination in its lame-duck session? “Flake says it might be Garland time,” Politico reported, and The Sacramento Bee editorialized, “A moment of clarity in 2016 campaign: Confirm Garland.”

SUPREME STAKES ON ELECTION DAY: “The Nov. 8 election will determine our rights for decades to come,” Dean Erwin Chemerinsky of the U.C. Irvine School of Law opined in a Los Angeles Times op-ed. “Although Hillary Clinton and Donald Trump discussed the Supreme Court at the debate Wednesday, they didn’t convey how crucial filling its vacancies will be for our constitutional rights.”

At CNN, meanwhile, Ariane de Vogue followed up remarks at the debate with her examination of “The Supreme Court’s Election Day ‘Doomsday scenario.'”

JUDGE EXTENDS VOTER REGISTRATION: Ruling in an action brought by a civil rights groups and others, U.S. District Judge Claude M. Hilton ordered extension of voter registration in Virginia until midnight tonight, according to The Washington Post. The extension was sought “after the state elections website crashed on Monday, the last day for Virginians to get on the rolls,” the Post said.

AFJAC’s Aron Quoted by USA Today on Dangers of a Trump Court

A general view of the U.S. Supreme Court in WashingtonBoth sides watching the presidential debate on Wednesday emerged with “something to cheer about” after the candidates faced off over the Supreme Court (see Gavel Grab), USA Today reported while quoting Nan Aron, president of the Alliance for Justice Action Campaign.

“A [Donald] Trump court would make America a dangerous and forbidding place for all but the wealthy and powerful, while [Hillary] Clinton’s vision for the court would serve our highest aspirations for an inclusive America where the rights of all people are protected,” Aron said.

For another view, USA Today turned to John Baker, professor emeritus at Louisiana State University Law Center. “Hopefully, Ms. Clinton doesn’t really believe in her statement that Supreme Court justices should take particular sides in cases,” he said. “That idea completely undermines the most basic principle of the rule of law that judges are to be neutral.”

Elizabeth Wydra, president of the Constitutional Accountability Center, said, “Both candidates wasted an incredible opportunity last night to educate the American people on their vision of the Constitution’s role in our society and our courts.” They moved instead, she said, to address “specific hot-button issues.”

Special Edition: In Final Debate, Candidates Clash Over Supreme Court

636125586760806870-xxx-20161019-aps-usa-091In their third and final debate, Donald Trump and Hillary Clinton gave sharply contrasting views on the Supreme Court and on Roe v. Wade. Trump said if he named several new justices, Roe would “automatically” be overturned and the issue returned to the states. Clinton said neither Roe nor marriage rights rulings should be reversed, while she advocated that “we stand up against Citizens United,” the landmark campaign finance decision from 2010.

A National Law Journal article was headlined “Trump Predicts Roe v. Wade Falls ‘Automatically’ If He Makes SCOTUS Picks,” and it is available by Google searching. While Fox debate host Chris Wallace had devoted a segment to the Supreme Court, the article said, “The final presidential debate Wednesday night left unanswered a raft of questions about the future of the U.S. Supreme Court, including the fate of nominee Merrick Garland, and instead focused on the candidates’ well-versed positions on guns and abortion.”

Democrat Clinton said, “I feel strongly that the Supreme Court needs to stand on the side of the American people, not on the side of the powerful, corporations and the wealthy,” according to The Washington Post. She “cast herself as a champion for progressive values, saying she would appoint justices who would defend women’s rights and gay rights and help to overturn the Citizens United ruling that has opened the floodgates to money in politics,” the Post reported.

She said the Senate should “go forward with the process” of confirming President Obama’s appointee to the court, although she did not mention Chief Judge Garland by name.

Trump pledged, “The justices I’m going to appoint will be pro-life, they will have a conservative bent, they will be protecting the Second Amendment.” He added, “They will interpret the Constitution the way the Founders wanted it.”

The Republican said his opponent wants to appoint justices who would severely curb gun rights, and portrayed the Second Amendment as “under absolute siege.” Clinton replied by stating an appreciation for gun-owning traditions, voiced her support for the Second Amendment and said it leaves room for reasonable regulation.

At Forbes, Michael Bobelian filled in some historical background. “Forty-eight years after [Richard] Nixon became the first major party candidate to politicize the Court during a presidential run, candidates now provide detailed explanations of the types of justices they plan to nominate,” he wrote.

CONTROVERSY CONTINUES OVER McCAIN STATEMENT: A statement on Monday by Sen. John McCain, R-Ariz., about Senate Republicans uniting to block any Supreme Court nomination in a potential Clinton administration (see Gavel Grab for background) continued to draw analysis and commentary, including Lyle Denniston in Constitution Daily, “Constitution Check: Could the Supreme Court handle a long-term vacancy?”; Media Matters, “CNN’s Jeffrey Toobin: McCain Threat Of GOP Senate Opposing All Clinton Supreme Court Nominees Is Unprecedented”; and National Review, “The Case for Shrinking the Supreme Court.”

Aron Spotlights Debate Over Supreme Court in USA Today; McCain Criticized

USATodayLogoARON ON ELECTION STAKES FOR SUPREME COURT: The stakes for the Supreme Court in next month’s presidential election are “colossal,” Nan Aron, president of our sister organization, Alliance for Justice, wrote in a USA Today op-ed on the eve of tonight’s presidential debate in Las Vegas.

“With a vacancy now long overdue to be filled, and as many as three more seats that could be filled in the next president’s first term if aging justices retire, this election could be transformative for the Supreme Court. Presidents serve for four or eight years. Justices serve lifetime tenures,” Aron wrote. She also listed a range of related questions that deserve addressing by the presidential candidates, and lamented that recent coverage of the campaigns “has been swamped by stories of sex, lies, and videotape” rather than “what could be [the next president’s] greatest legacy.”

A CNN report, meanwhile, proposed questions for the candidates. including how Hillary Clinton would name Supreme Court justices. Regarding President Obama’s long-stalled nomination of Chief Judge Merrick Garland, CNN quoted Aron as saying recently, “The Supreme Court is hobbled and the risk of deadlock on critical questions is high.”

SEN. McCAIN THRASHED OVER COMMENTS:  Several editorials thrashed Sen. John McCain, R-Ariz., over his Monday remarks — later walked back by a spokeswoman — that Senate Republicans would unite to block any Supreme Court nominees put forward by a potential future Clinton administration (see Gavel Grab).

The Washington Post editorialized, “John McCain surrenders his honor to toxic partisanship — again.” Related coverage and commentary included a Los Angeles Times editorial, “GOP obstructionism gone haywire: No new Supreme Court justices until the next Republican president?”; “Supreme Court stand-off,” a Baltimore Sun editorial warning about a potential constitutional crisis; a Kansas City Star editorial, “Republican senators’ obstruction of justice continues”; a op-ed by Jeremy Paris, “Failure to act on Merrick Garland leaves a shorthanded U.S. Supreme Court that harms all Americans; and The Hill, “Top Republican: Senate can’t ‘stonewall’ Clinton Supreme Court nominee.”

DIVERSITY IN JUDICIAL APPOINTMENTS, AND AFJ: An in-depth Law360 article (subscription or registration required) examined Obama’s record for naming diverse federal judges. It quoted AFJ’s Aron as saying about the next president’s appointments, “There’s a need to take into account professional diversity along with appointing women and people of color.”

COSTLY STATE COURT ELECTIONS LOOM: In a release, the Brennan Center for Justice reported, “Outside Spending Surges in Important State Judicial Races as Election Day Nears: In just two weeks, outside groups have poured more than $1.2 million into state supreme court contests, heightening concern about the influence of money and politics on state courts.”

Would Senate Republicans Blockade a Clinton Supreme Court Pick?

160621160212-john-mccain-exlarge-169McCAIN’S EXPLOSIVE STATEMENT ON NOMINATIONS:  Sen. John McCain’s statement that Senate Republicans would unite to block any Supreme Court nominees put forward by a potential future Clinton administration “went off like a land mine” with progressive observers, according to The Washington Post.

“I promise you that we will, we will be united against any Supreme Court nominee that Hillary Clinton — if she were president — would put up,” McCain, R-Ariz., told a Pennsylvania radio station on Monday. Later, a McCain spokeswoman backpedaled and said, “Senator McCain will, of course, thoroughly examine the record of any Supreme Court nominee put before the Senate and vote for or against that individual based on their qualifications as he has done throughout his career,” according to The Hill.

Wrote Ian Millheiser of the Center for American Progress, “Imagine a world where [late Justice Antonin] Scalia’s seat — and two others — remain vacant for five years because a Republican Senate refuses to confirm anyone named by the president.”  He addd, “Then imagine that all three of these seats are filled five or nine or thirteen years from today, when Republicans finally manage to gain control of both the White House and the Senate. What reason would Democratic governors have to obey the decisions of such a court?” The issue is likely to be debated when the presidential candidates face off tomorrow, Huffington Post reported.

A FEW PROPOSED QUESTIONS FOR THE DEBATERS: Bloomberg had a piece suggesting several “pressing” questions tied to the Supreme Court for the candidates to answer.  One of them: “Secretary Clinton, if you are elected, will you call on the Senate to confirm [high court nominee] Merrick Garland in a lame-duck session? Will you re-nominate him if the seat is vacant on Jan. 20?” Another: “Mr. Trump, you have released a list of 21 prospective Supreme Court nominees. If you have a vacancy to fill, will you consider anyone who isn’t on that list?”

At The American Prospect, meanwhile, Simon Lazarus had a commentary about the Wells Fargo phony account scandal that was headlined, “Don’t Just Whack Wells Fargo’s CEO/Target his highest enabler: The Supreme Court.”

JUDICIAL VACANCIES: A Courthouse News Service article on dozens of judicial vacancies was titled, “Increase in Judicial Vacancies across Nation, Attributed to Republican Obstruction, Delays Justice.”

Election’s High Stakes for Supreme Court; Judicial Vacancies’ Toll

voting-boothSTAKES FOR SUPREME COURT ARE HIGH ON NOV. 8: With the presidential candidates due to debate about the Supreme Court on Wednesday night, commentary on this major election issue is heating up.

Senate Republicans’ unprecedented blockade of Chief Judge Merrick Garland’s nomination to the court “has ensured that the future of the Supreme Court is at stake on Nov. 8,” former solicitor general Donald Verrilli Jr. wrote in a TIME column. And “something even more profound is on the line in this election: the public’s faith in the Supreme Court as an institution of law and not politics,” he added.

In The Atlantic, Russell Berman wrote, “Why the Supreme Court Matters More to Republicans than Trump: Conservative justices might be the party’s final bulwark against a changing electoral landscape.” A Washington Post editorial, meanwhile, disapproved of the way both candidates are discussing Supreme Court picks, saying, “Every step closer to accepting ideological litmus tests developed in the heat of political campaigns as the basis for judicial selections — every step toward putting court rulings to a vote — erodes the foundations of the judicial branch.”

‘TOLL’ OF JUDICIAL VACANCIES: Looking beyond the Supreme Court vacancy created by the passing of Justice Antonin Scalia, the Associated Press reported, “[M]ore than 90 vacancies in the federal judiciary are taking a toll on judges, the courts and Americans seeking recourse. [President] Obama has nominated replacements for more than half of those spots, including 44 nominees for the district court and seven for the appeals court. Yet the Senate has confirmed only nine district and appeals court judges this year — and only four since Scalia died.”

FLORIDA DEATH SENTENCE RULINGS: The Florida Supreme Court ruled in two associated cases that “death sentences must require a unanimous jury and struck down a newly enacted law that allowed a defendant to be sentenced to death as long as 10 of 12 jurors recommended it,” according to The Associated Press. And in other state court news, The American Prospect blogged about a recent study from Lambda Legal, “Report: Judicial Elections Fuel Anti-LGBT Bias.”

GINSBURG BACKTRACKS: According to Reuters, “U.S. Supreme Court Justice Ruth Bader Ginsburg on Friday called her criticism of National Football League player Colin Kaepernick ‘inappropriately dismissive and harsh’ and said she should not have commented on his protest against racism and police brutality in the United States.”

In the News: How Long Will Logjam on Judicial Nominations Persist?

United_States_Capitol_dome_daylightMERRICK GARLAND NOMINATION: Will the Senate Republican blockade of Chief Judge Merrick Garland’s nomination to the Supreme Court be lifted in the lame-duck session if Hillary Clinton wins the White House? Not likely, a Washington Post article suggested in reporting on remarks by Sen. Mike Lee, R-Utah, during a debate this week.

“Mike Lee explains why the GOP will block Garland even if Clinton wins,” the Post’s headline declared. And there was more discussion of possible GOP “hardball” tactics on Clinton court nominees from Cameron Smith in an commentary; a Republican-led Senate could refuse outright to confirm a Clinton nominee it cannot stomach, he wrote, and Congress could consider reducing the size of the Supreme Court to seven justices.

‘UNPRECEDENTED AND DANGEROUS’ LOGJAM: In The (Allentown, Pa.) Morning Call, a column by Elizabeth B. Wydra, president of the Constitutional Accountability Center, deplored not only the logjam on Garland’s nomination but also on the nominations of judges for dozens of lower federal court seats. She blasted the logjam as “unprecedented and dangerous” and said, “These judicial vacancies aren’t just a set of numbers. They affect the lives of every man, woman and child in this country who relies on the courts for timely justice on issues, including civil rights, voting rights, clean air and water, and corporate responsibility, not to mention civil and criminal rights.”

AFJ IN THE NEWS: Our sister organization, Alliance for Justice, was mentioned in a Quartz article that’s headlined, “The cost of electronic access to US court filings is facing a major legal test of its own.”

The article updated readers on the status of a lawsuit by AFJ, the National Veterans Legal Services Program and the National Consumer Law Center accusing  the Administrative Office of the U.S. Courts of illegally charging excessive fees to access court records through its online Public Access to Court Electronic Records system (PACER). Quartz reported, “As it happens, the paywall that surrounds Pacer is facing what may be its most serious test since the service emerged 28 years ago. Judge Ellen Huvelle of the US district court in Washington DC is expected to decide in the coming days whether a lawsuit accusing the government of setting Pacer fees at unlawfully high rates can proceed.” To learn more about the lawsuit, click here.