Senators Choose Sides on Gorsuch, Rumors of a Deal Surface

TWO RED-STATE DEMOCRATIC SENATORS SUPPORT GORSUCH: Senators  JoeManchin and Heidi Heitkamp announced that they will vote in favor of Neil Gorsuch’s nomination to the Supreme Court. The pair represent West Virginia and North Dakota, two red states that Donald Trump won in the election. Both are up for re-election in 2018, reported The New York Times. Their support is giving Gorsuch “a measure of bipartisan sheen but doing little to dissuade leading Democrats from planning to block him.”

THREE MORE DEMOCRATIC SENATORS OPPOSE GORSUCH: Senators Richard BlumenthalBrian Schatz, and Catherine Cortez Masto have joined 36 other Democratic senators in opposing Gorsuch, bringing the total to 39. Senator Chuck Grassley predicted that Gorsuch will not attain the 60-vote threshold needed to advance his nomination,  according to The Hill.

UNLIKELY DEAL ON GORSUCH: There are reports that Senator John McCain has been looking to strike a deal with Democrats to get Gorsuch confirmed, but that his hopes for success aren’t high. “I’ll have conversations, but I’m not optimistic,” he said, according to The Hill. McCain said a deal would require eight Democratic votes to confirm Gorsuch in return for a promise that Democrats will be able to block a nominee under “extraordinary circumstances” in the future.

Meanwhile, Senate Minority Leader Chuck Schumer has repeatedly said that if Gorsuch cannot reach the 60-vote threshold, the solution is to change the nominee, not change the rules. “Senate Republicans are acting like if Gorsuch doesn’t get 60 votes they have no choice but to change the rules,” he said, according to CBS News. “That is bunk.”

First-Day SCOTUS Protests Garner Coverage

texas-chairsAs the Supreme Court opened for its first day of oral arguments on October 4,  activists gathered on the steps of the U.S. Supreme Court to highlight Senate Republicans’ obstruction of Judge Garland’s nomination to the Court. Coverage on TV station New York 1  featured the rally, while top news photos of the day also highlighted the visual display of signs urging Senators to “Do Your Job.”  Photo coverage appeared on the Getty images , The Nation,  and Yahoo  news websites.   Speakers at the D.C. event included Jim Obergefell, whose landmark Supreme Court case Obergefell v. Hodges affirmed marriage equality nationwide.  Organizations rallying at the Court included We Need Nine campaign organizations Alliance for Justice, Center for American Progress, People for the American Way, and The Leadership Conference on Civil and Human Rights.

Meanwhile, activists also gathered in multiple states for a day of action highlighting Senate Republicans’ blockade of federal judicial nominees. In each state, activists made deliveries of 92 miniature empty chairs to the local offices of GOP Senators. The chairs represent the 92 vacancies on federal courts resulting from Senate Republicans’ obstructionism of the judicial nominations process: one for the Supreme Court and each federal judicial vacancy.  Actions took place in Iowa, Pennsylvania, Ohio, Wisconsin, New Hampshire, Texas and Nevada.  The protests were highlighted on the Urban Milwaukee, Iowa Labor News, WHO-TV, Public News Service, and other news sites.

Photo courtesy Progress Texas.

 

A Short-handed SCOTUS Opens for Business

justice-scalesAlthough the traditional “First Monday” arguments won’t take place until tomorrow, after the Jewish holiday, the Supreme Court officially started its new term today – with one vacancy still remaining.  A flurry of articles and editorials commented on how the short-handed Court will function, including pieces in The Washington Post, The New York Times,  Reuters, McClatchy, and the Los Angeles Times.    Several noted that without a full complement of justices, the Court may find itself unable to resolve key questions of law.

Meanwhile, the Supreme Court on its first day declined to weigh in on two closely-watched issues.  One was the appeal of a ruling in Wisconsin’s “John Doe” case involving Gov. Scott Walker’s anti-recall campaign.  According to the Wisconsin State Journal, the Court declined to hear the appeal of three Democratic district attorneys, who were requesting a reopening of the investigation into alleged illegal coordination between Walker’s campaign and outside interest groups including the conservative Club for Growth.  The same interest groups were known to have supported the campaigns of conservative state Supreme Court justices, an issue that came under scrutiny when the court shut down the investigation into Walker’s campaign. According to the Journal, UC-Irvine law professor Rick Hasen observed,”A short-handed court split ideologically 4-4 may have been especially reluctant to delve into this politically sensitive case. Still the question of judicial recusal of judges who directly benefited from the Club for Growth’s campaign activities merited review.”

The Court also decided not to accede to the Obama administration’s request to reconsider the president’s plan to spare millions of immigrants from deportation, according to Reuters.  The Court deadlocked 4-4 over the issue last summer.

The Huffington Post took note not only of the Supreme Court’s short-handedness but of the failure to confirm scores of judges to lower federal court seats in a piece quoting Nan Aron in her role as President of our sister organization, the Alliance for Justice. Referring to Republicans in the Senate, Nan said, “What they’re doing is holding open these seats for a future Republican president to put in individuals who side with the wealthy and the powerful. That’s what this is about.”

And in state court news, the Alabama Court of the Judiciary has suspended Alabama Chief Justice Roy Moore from the bench without pay for the rest of his term.  According to NPR, Moore violated judicial ethics when he ordered state judges not to respect the U.S. Supreme Court’s ruling affirming marriage equality.

Huffington Post Cites Aron on SCOTUS Oversight in Debate

washington-supreme-court-building-washington-d-c-dc169SCOTUS CONSPICUOUSLY ABSENT FROM FIRST DEBATE:  Although the presidential election will have an enormous impact on the future makeup of the Supreme Court, that topic was notably absent from the agenda of the first Trump-Clinton debate. The Huffington Post’s Cristian Farias pointed out the oversight in a piece headlined “One Issue That Could Reshape America For A Generation Was Snubbed At The Debate,” and quoted Nan Aron in her role as President of  our sister organization, Alliance for Justice.  “It’s disappointing that one of the most critical issues facing our democracy, the future of the Supreme Court, didn’t get any airtime in tonight’s debate,” Nan said.  The Huffington Post piece went on to urge that the Court get coverage in the remaining presidential debates as well as the upcoming vice presidential debate.

Meanwhile, Noah Feldman in a piece for Bloomberg View offered analysis of why the SCOTUS issue failed to come up at the first debate, and why it has received less attention on the campaign trail than some might have expected.  Prof. Feldman’s take: neither candidate believes he or she can gain an edge by highlighting the Court as a campaign issue.  Donald Trump, Feldman writes, can’t promise to remake the Court as he would likely get only the chance to replace the late Justice Scalia with another conservative judge, thereby maintaining the status quo.  Meanwhile, although a Hillary Clinton appointment to replace Scalia could shift the balance on the Court, Feldman opines that “it isn’t good politics for her to trumpet a liberal transformation of the court when she’s trying to win over the median voter.”

CLIMATE PROTECTION PLAN HANGS BY A THREAD IN FEDERAL COURT:  The Hill reports that the EPA’s Clean Power Plan, a central feature of  President Obama’s second-term climate agenda, is in the hands of the DC Circuit Court of Appeals after the Supreme Court put its implementation on hold earlier this year.  The Clean Power Plan is often cited as a primary example of the Supreme Court’s, and federal courts’, influence in the environmental arena.  According to The Hill, it’s unclear whether the plan will survive the current federal court scrutiny.  Its implementation was halted in February by a Supreme Court ruling that sent it down to the lower court for review; the Court’s action was among the last joined by Justice Antonin Scalia before his death days later.

With Debate Looming, Analysts Ponder SCOTUS’s Future

n-SUPREME-COURT-large570SUPREME COURT HANGING IN THE BALANCE: With the first presidential debate set for tonight, court-watchers’ focus on how the election will affect the Supreme Court is intensifying. In a piece for The New York Times,  Adam Liptak notes:  “In Chief Justice John G. Roberts Jr.’s 11 years on the Supreme Court, his unfolding legacy has been marked by a debate over whether his very occasional liberal votes in major cases were the acts of a statesman devoted to his institution, a traitor to his principles or the legal umpire he said he aspired to be at his confirmation hearings. This election could settle that debate.”  Meanwhile, Jeffrey Toobin posts a comprehensive analysis of a Supreme Court “In the balance” at The New Yorker, noting, “The Supreme Court has leaned right for decades. Is that about to change?”

SCOTUS WEIGHING JOHN DOE CASE:  Also at The New Yorker, Lincoln Caplan has a piece on why the Supreme Court should take up the appeal of a Wisconsin Supreme Court ruling halting the so-called “John Doe” investigation involving Gov. Scott Walker’s recall election. Caplan writes: “The case is about the seemingly peripheral issue of judicial recusal. But it brings together two of the biggest disrupters of American democracy today: the surge, after the Citizens United decision struck down limits on independent spending, of private influence in elections; and the politicization of the highest courts in many states. For the past eight years, Wisconsin has been a laboratory testing the toxicity of this combination.”

 

 

 

 

 

Could SCOTUS Chief Roberts Comment on Garland Nomination?

The New York Times reports that days before Justice Antonin Scalia’s death, U.S. Supreme Court Chief Justice John Roberts commented publicly that nominations to the Court should be kept free of politics. The article goes on to raise an intriguing possibility, noting, “Chief Justice Roberts was speaking in general terms, of course, and he has not addressed Judge Garland’s nomination or the possibility that the Supreme Court may have just eight members for a year or more. Perhaps he should.”

There is no prohibition on such a comment from the Chief Justice, according to a legal expert quoted in the piece.  Moreover, the Times comments, “A statement from Chief Justice Roberts, who was appointed by Mr. Bush, could demonstrate in a concrete way that the court is not, as he put it in Boston, made up of Democrats and Republicans.”

The Garland nomination hangs in limbo as Senate Republicans continue to oppose hearings. (See Gavel Grab.)  A column by E.J. Dionne in The Washington Post took conservatives to task for the delay, while another report in The New York Times noted that anti-Garland forces have yet to coalesce around a single message. Bloomberg Politics noted that Senate Majority Leader Mitch McConnell ruled out consideration of the Garland nomination even if Democrats win the presidential election in November.

Meanwhile, a piece in The Washington Post profiled Garland, based on his dissents written while on the U.S. Court of Appeals for the D.C. Circuit. Commenting that dissents often provide valuable insight into a judge’s thinking and style, the Post reports that Garland’s dissents have been few and have taken a decidedly measured tone.

Cases, Cash Play Roles in Wisconsin Court Race

Justice Bradley, left; Judge Kloppenburg, right
Justice Bradley, left; Judge Kloppenburg, right

As Election Day for Wisconsin’s Supreme Court race nears, both candidates are facing scrutiny over rulings in past cases, according to the Milwaukee Journal-Sentinel.  The Journal-Sentinel reports that Judge JoAnne Kloppenburg’s rulings in favor of defendants in four Court of Appeals cases have drawn criticism, while Justice Bradley has been criticized “because she has ruled on few cases the public can review.”

Meanwhile, a Wisconsin Public Radio report on “Where the money is going” in the Supreme Court race highlights the prevalence of outside spending by the Wisconsin Alliance for Reform.  The report includes an interactive map showing how the Alliance’s TV ad spending has dominated major media markets in the state.  The Alliance’s advertising has supported Justice Bradley.  Justice at Stake and the Brennan Center for Justice are tracking ad spending in the race and noted most recently that total TV spending by all sides had reached nearly $1.3 million, with three weeks to go before Election Day.

 

McGregor: Diversity Must Be a Factor in Supreme Court Pick

McGregorIn an op-ed for the Arizona Republic, Justice at Stake Board member and former Arizona Chief Justice Ruth McGregor urges the President to consider diversity in making his next Supreme Court nomination.  The President has said he will nominate a successor to the late Justice Antonin Scalia soon.

“Diversity strengthens America’s courts,” Justice McGregor writes. “Scholarly studies suggest, and my own observations agree, that a court’s analysis is broadened by the presence of diverse voices, whether related to gender, race, or any other unique part of a judge’s background.”

Meanwhile, controversy continues to swirl over the nomination process; the New York Times noted the President’s “contentious” history with the Court, and also the magnitude of the nomination decision.  “That is why the fight over Justice Scalia’s replacement is so momentous,” the Times observed, “magnified because two of the most significant initiatives of Mr. Obama’s presidency, on immigration and climate change, are awaiting the eventual judgment of a court now ideologically divided 4 to 4.”  Politico notes that while the GOP leadership in the Senate has refused to consider any Supreme Court nominee put forward by the White House, Senate Republicans appear ready to move forward with some nominees to lower federal courts, drawing charges of hypocrisy from Democrats.

Seaton: SCOTUS Case Highlights ‘Toxic’ Judicial Elections

Seaton
Seaton

In a commentary for USNews and World Report, JAS’s Liz Seaton notes that a case before the U.S. Supreme Court “shines a spotlight on the problem with judicial elections, and the stakes are life or death.” The case is Williams v. Pennsylvania, in which attorneys for Terrance Williams argue he was “denied his right to a fair day in court by an appeals court judge who bragged while stumping for election about his record as Philadelphia’s top prosecutor.”

“At a moment in our nation’s history when fixing our criminal justice system has rightly attracted bipartisan engagement,” Seaton writes, “it is more important than ever that lawmakers consider the need to address the toxic influence of electing judges, a process that still exists in 39 states.” Justice at Stake also joined an amicus brief in the case, citing evidence that judges’ decision-making can be impacted by election pressures. (See Gavel Grab.)

The case is also being watched by the Associated Press, which emphasizes the prosecutorial role played by Castille.  “A Pennsylvania death row inmate has a simple challenge for the U.S. Supreme Court: The same person shouldn’t be both his prosecutor and his judge,” AP reports. The case will be heard by only eight justices, following the death of Justice Antonin Scalia.  Later this week, the AP reports, the Court will hear a case on another hot-button issue, a Texas law restricting abortion clinics.