Nan Aron, Alliance for Justice Action Campaign president, criticized in a column for Huffington Post today Republican threats to escalate obstruction of judicial nominees to “a destructive new level” and urged setting aside “hyperpartisan warfare” to let the next president govern.
“The past few days have brought a striking moment of clarity to Republicans’ cynical, campaign-season obfuscation around their real strategy for the Supreme Court,” Aron wrote. “So permit us to borrow a phrase from that long-ago primary season: let’s dispel with this fiction that Republicans meant what they said about letting the voters speak when it comes to shaping the Supreme Court. They didn’t.”
“In fact, Sen. Ted Cruz has now confirmed what Sen. John McCain let slip last week: the Republican blueprint for a Hillary Clinton presidency is to obstruct and blockade the confirmations of Supreme Court nominees.” To learn more about statements by Cruz and McCain, see Gavel Grab.
Not only does President Obama’s Supreme Court nomination of Chief Judge Merrick Garland hang in limbo, but so do scores of other nominations for the lower federal courts, she wrote. Aron concluded, “Right after the election, it’s imperative that we allow the next president to govern fairly and avert a system broken by hyperpartisan warfare. For the Senate to support democracy and halt the standoff over judges would be a good starting point.”
CONTROVERSY AFTER CRUZ REMARKS: Sen. Ted Cruz’s suggestion that the Supreme Court could continue to function with eight justices confirmed a “Republican blueprint for a Hillary Clinton presidency” of obstructing and blockading federal judges, The Washington Times quoted Nan Aron, Alliance for Justice Action Campaign president, as saying. “This is the game plan now: kneecap the federal judiciary, shred the Constitution,” Aron said. “All those things Republicans said about letting the American people have a say in the next Supreme Court nomination? They’ve been exposed as the lies they were.”
Cruz’s remarks, following on the heels of a veiled threat floated and later walked back by Sen. John McCain, R-Ariz. (see Gavel Grab), ignited controversy. A Washington Post editorial said about Cruz, “Crudely, his message is: We lost the presidency, so let’s take our marbles and go home. Such thinking seems to come easily to the senator who led the 2013 government shutdown. But it runs against the oath Mr. Cruz took as a senator to ‘well and faithfully discharge the duties of the office.’”
The White House weighed in, according to The Associated Press: “Sen. Ted Cruz’s suggestion of an indefinite Supreme Court vacancy under a President Hillary Clinton raises questions about the credibility and integrity of Republicans who have said the next president should get to the choose who fills the vacancy, White House spokesman Josh Earnest said Thursday.” Politico discussed GOP divisions, noting that “Senate Republicans are choosing sides ahead of a brutal conflict over how to handle the lingering Supreme Court vacancy,” and that Republican Sen. Jeff Flake of Arizona had fired back at Cruz’s suggestion. “You won’t be surprised, I do not agree,” Flake said. “There’s a difference between what might be constitutional and what you could do politically and what you should do. And I think leaving a vacancy for up to four years is not why we’re here.”
Other related coverage and commentary included Dahlia Lithwick at Slate, “Eight Is Not Enough: Senate Republicans believe the Supreme Court will be just fine permanently operating one justice down; Here’s how John Roberts can talk sense into them”; Roll Call, “Republicans Split on Supreme Court Strategy in Lame Duck: Sen. Flake vows hearings, vote for Merrick Garland if Hillary Clinton wins”; and Eric Segall in The Los Angeles Times, “It’s the Supreme Court, not the Senate, that needs to do its job right now.”
GROPING ALLEGATION AGAINST SUPREME COURT’S THOMAS:The New York Times reported, “An Alaska lawyer has accused Justice Clarence Thomas of groping her at a dinner party in 1999, a claim that Justice Thomas called ‘preposterous.’” His confirmation fight 25 years ago included allegations by Anita Hill of sexual harassment. National Law Journal broke the latest news, and it reported today, “Anita Hill Calls for Investigation Into New Thomas Allegation” (article can be accessed by a Google search). AFJAC’s Aron was quoted in US News & World Report recently about allegations of sexual harassment against Donald Trump, which the article said were drawing some comparisons with the Hill episode in 1991 (see Gavel Grab).
MANDATORY ARBITRATION TARGETED:Arstechnica.com reported, “FCC imposes ISP privacy rules and takes aim at mandatory arbitration.” The article explained that the Federal Communications Commission “said it has begun working on rules that could limit the use of mandatory arbitration clauses in the contracts customers sign” with Internet service providers. You can learn more about this issue by reading the Justice Watch blog of our sister organization, Alliance for Justice.
SUPREME COURT VACANCY: Another Republican senator, Ted Cruz of Texas, has suggested the GOP might block any Supreme Court nominee selected by a Democratic president to succeed the late Justice Antonin Scalia, The Associated Press reported. Following on the heels of a similar statement by Sen. John McCain (see Gavel Grab), when asked about high court vacancies, Cruz said on Wednesday:
“There will be plenty of time for debate on that issue, there is long historical precedent for a Supreme Court with fewer justices, just recently Justice (Stephen) Breyer observed that the vacancy is not impacting the ability of the court to do its job, that’s a debate that we are going to have.”
Responded Senate Democratic Leader Harry Reid in a fundraising email, “Ted Cruz and John McCain may have given away the Republican game plan on the Supreme Court,” and he warned of a potential constitutional crisis. In The New York Times, Linda Greenhouse portrayed McCain’s remarks about a possible GOP blockade of any Hillary Clinton nominee to the court as rupturing political norms in a “corrosive” election year, and she raised concerns about a potential threat to the rule of law.
Related news coverage and commentary included Lou Dubose in Newsweek, “Why McCain Wants to Leave the Supreme Court Hanging”; Cristian Farias at Huffington Post, “This Could Be The Beginning Of The End Of The Supreme Court As We Know It”; The Washington Post, “‘Eight is not a good number’: Justices Ginsburg, Sotomayor address the New York City Bar Association”; The Associated Press, “[Justice Clarence] Thomas criticizes broken confirmation process for high court”;The Washington Post, Cruz says there’s precedent for keeping ninth Supreme Court seat empty”; and Constitution Daily, “Is the Supreme Court filibuster in play in 2017?”
MONEY IN STATE COURT ELECTIONS: “As President Obama took the extraordinary step of endorsing a candidate for a state supreme court race this week, spending by outside groups on television ads in all such contests hit a record high nationwide,” the Brennan Center for Justice reported on Wednesday. Initial coverage included Esquire, “Electing Judges Continues to be a Terrible Idea”; and a USA Today editorial, “Justice for sale — Our view.”
With Election Day less than two weeks off, news media are continuing to use analysis from the Alliance for Justice Action Campaign to educate voters about the candidates and the Supreme Court. In the latest instance, AFJAC was quoted in a Hearst TV report, “High Stakes for High Court.”
Regarding Hillary Clinton, AFJAC President Nan Aron said on camera for the Hearst report, “Her belief about the court stems from an idea that the Constitution protects all of us, not just people who are wealthy and powerful.” The report juxtaposed images of Donald Trump saying he would want to appoint justices in the mold of the late Justice Antonin Scalia, and of Clinton declaring, “I want a Supreme Court that will stick with Roe v. Wade and a woman’s right to choose.”
Given that one vacancy remains on the high court, Hearst’s Sally Kidd concluded her report by saying, “Remember, one vote made the difference for the Affordable Care Act, … campaign finance, voting rights, and same-sex marriage cases.”
SUPREME COURT, U.S. ELECTION, AND AFTERMATH: A recent poll finds that the Supreme Court is influencing voters more than the economy as an issue in the presidential election, according to a Tribune Washington Bureau article.
“About one quarter of the respondents listed the future of the court as an important issue. They were significantly more likely to be backing [Donald] Trump than the average voter and significantly less likely to be supporting [Hillary] Clinton,” the article said.
There was increasing commentary looking to the aftermath of the election. A Kansas City Star editorial suggested that if Clinton wins, President Obama should withdraw his nomination of Chief Judge Merrick Garland to the high court and “let the next president choose someone younger and more progressive.”
At EmpiricalSCOTUS, Adam Feldman surveyed a list of potential Clinton nominees to the high court and narrowed them down to five, including Garland. At The Federalist, Ilya Shapiro, a fellow at the Cato Institute, escalated recent talk about Senate Republicans denying Clinton a Supreme Court nominee (see Gavel Grab) in an opinion headlined, “The Senate Should Refuse To Confirm All Of Hillary Clinton’s Judicial Nominees.”
STATE ‘JUDGES … FOR SALE’?: Big spending, special interest influence and anonymous donations in state supreme court elections were getting media attention in the run-up to Election Day.
Fumed a Charlotte Observer editorial, “Special interest millions are trying to buy the N.C. Supreme Court.” It warned that “shadowy independent groups” who decline to disclose their donors “are pumping millions of dollars into North Carolina’s judicial races, undercutting the judiciary’s credibility and giving voters the impression that judges and justices are for sale.” The Billings (Mt.) Gazette reported, meanwhile, “Supreme Court race on track to break 2014 fundraising record.”
WILL WASHINGTON PARTISANSHIP HOBBLE THE SUPREME COURT? Commentator Wendy Kaminer raises that question in an opinion for WBUR that cites our sister organization, the Alliance for Justice, in making her case. WBUR is Boston’s public radio station.
Discussing recent remarks by Sen. John McCain (see Gavel Grab), about a possible GOP blockade of all Supreme Court nominees if Hillary Clinton wins election, Kaminer observes, “We should not be surprised when Supreme Court appointments fall prey to the intense, unprincipled partisanship that now plagues us. It’s even somewhat refreshing to hear ideological objections to a judicial nominee so openly expressed. But it’s depressing to think that Republicans would risk crippling the court for the next four years by refusing to allow a Democratic president to fill existing and future vacancies.”
Already the lower courts have been “crippled” by Republican obstructionism of President Obama’s judicial nominees, she writes, adding: “As the Alliance for Justice (AFJ) reports, ‘The Senate confirmed only 11 judges in all of 2015, which is the lowest single-year total since 1960. And with only 11 more judges confirmed so far in 2016, this two-year Congress is on pace for the lowest number of judicial confirmations since 1951-52.’”
Other coverage about controversy over filling a current vacancy on the high court, and future ones that may develop, includes MSNBC, “As Court struggles, Grassley argues hearings are expensive”; ThinkProgress, “The fate of the Supreme Court could rest with Ted Cruz”; TPM, “Harry Reid’s Parting Shot: Dems Will Nuke The Filibuster For SCOTUS”; ABC News, “What Hillary Clinton Wants in a Supreme Court Justice”; and RealClearPolitics, “Hillary Clinton and the High Court.”
TOOBIN ON JUSTICE CLARENCE THOMAS: At The New Yorker, legal analyst Jeffrey Toobin asserts that Chief Justices William Rehnquist and John Roberts never assigned a landmark Supreme Court opinion to Justice Clarence Thomas because they “never trusted Thomas to write an opinion in a big case that could command a majority of even his conservative colleagues. Why was this? It is because Thomas is not a conservative but, rather, a radical—one whose entire career on the Court has been devoted to undermining the rules of precedent in favor of his own idiosyncratic interpretation of the Constitution.” Thomas took his seat on the high court 25 years ago this month.
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.
MERRICK 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.”
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 Report 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.
SUPREME 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.