NPR Cites Aron on Trump’s Judicial Candidates; Senators Press Bank

gty_supreme_ct_jrl_160520_12x5_1600AFJAC CRITICAL OF EXPANDED JUDGES LIST: When NPR reported on Republican presidential candidate Donald Trump’s expanded list of potential Supreme Court picks (see Gavel Grab), it quoted AFJAC President Nan Aron. The latest list, like Trump’s first one, features “ultraconservatives who espouse a backward view of the law,” NPR quoted Aron as saying.

While a measure of racial diversity was added, Aron said, it “doesn’t change the fact that these individuals’ track records suggest they would endanger the cherished rights and freedoms of Americans.”

Carrie Severino of the Judicial Crisis Network, on the other hand, “praised the Trump lists as ‘unprecedented’ steps that should ‘please conservatives’ if Trump is elected and delivers on the type of nominee he is promising.”

FAKE-ACCOUNTS SCANDAL BRINGS PRESSURE ON BANK: Wells Fargo & Co. CEO John Stumpf was pressed on Friday by a group of Senate Democrats to halt enforcing forced arbitration clauses in its agreements with customers.

“If Wells Fargo really does want to look out for the customers, if they really are in fact sorry, as the CEO said, for these unauthorized accounts, they ought to let the court system work if these people who were wronged want to bring suit,” said Sen. Sherrod Brown, D-Ohio, according to The Los Angeles Times. Brown and five other senators wrote a letter to Stumpf outlining their concerns.

ABC News explained the issue this way: “Arbitration, mandated in some if not all basic agreements that customers sign when they open accounts at the bank, ‘helps hide fraudulent schemes such as the sham accounts at Wells Fargo from the justice system, from the news media, and from the public eye,’ the senators wrote.” Gavel Grab has more about Stumpf’s testimony before a Senate panel this week.

VOTER-PURGING SYSTEM STRUCK DOWN: In another in a series of recent voting law cases around the nation, “The 6th U.S. Circuit Court of Appeals ruled Friday that Ohio’s reliance on lack of voting activity as a trigger for purging people from the voting rolls violates federal law,” Cleveland.com reported.

Trump Adding to Judicial Candidates List; Arbitration Clauses Criticized

A general view of the U.S. Supreme Court in WashingtonEXPANDED TRUMP LIST OF POTENTIAL COURT PICKS: Debate about filling a longterm vacancy on the Supreme Court, and additional vacancies that might arise in the next few years, is expected to intensify amid news reports that Republican presidential candidate Donald Trump is adding to his list of potential candidates.

NBC reported the list, including Sen. Mike Lee, R-Utah and a member of the Senate Judiciary Committee (who “swiftly shot down the idea,” according to Politico); Neil Gorsuch, a judge on the U.S. Court of Appeals for the Tenth Circuit; Margaret Ryan, a judge for the U.S. Court of Appeals for the Armed Services who clerked for Justice Clarence Thomas; Iowa Supreme Court Justice Edward Mansfield; Georgia Supreme Court Justice Keith Blackwell; Florida Supreme Court Justice Charles Canady; Michigan Supreme Court Chief Justice Robert Young; Tenth U.S. Circuit Court of Appeals Chief Judge Timothy Tymkovich; Judge Amul Thapar of the U.S. District Court for the Eastern District of Kentucky; and Judge Federico Moreno of the U.S. District Court for the Southern District of Florida. Trump had earlier released another list of 11 names of potential high court picks.

Bloomberg said the new names were to be formally released today. A Bloomberg BNA article, meanwhile, about the Supreme Court as an issue in the 2016 election, reported, “For the first time in a long time, the presidential and Senate races are about Supreme Court nominees for many people,” according to Mark C. Miller, of Clark University, Worcester, Mass., a judicial politics professor.

ARBITRATION CLAUSES AND WELLS FARGO: A fake account scandal at Wells Fargo & Co. (see Gavel Grab for background) continues to generate media coverage about forced arbitration clauses shielding banks from class-action lawsuits by customers.

“Customers who had bank or credit card accounts opened in their name without their knowledge face an uphill battle even getting a court to hear their case because of mandatory arbitration contract clauses that protect banks from class-action suits, consumer advocates say,” NBC reported about the Wells Fargo scandal fallout.

At USNews.com, Dean Clancy wrote in a commentary, “It transpires that, to avoid lawsuits, the San Francisco-based megabank has been invoking boilerplate clauses in its customers’ bank account contracts that say the customer cannot sue the company but rather must take their complaints to private, binding arbitration. Arbitrators are notoriously less favorable to customer-plaintiffs than are juries.” And focusing on the arbitration clauses, a Huffington Post article was headlined, “The Infuriating Reason Wells Fargo Got Away With Its Massive Scam For So Long.”

You can learn more about this issue by reading the Justice Watch blog post of our sister organization, Alliance for Justice, titled, “Why the Wells Fargo Scandal Shows the Need to End Forced Arbitration.”

‘REGULAR ORDER’ AND JUDICIAL NOMINATIONS: Senate GOP leaders can start rectifying the [judicial] vacancy crisis and restoring regular order by according all nominees on the floor votes before leaving to campaign” this fall, law professor Carl Tobias of the University of Richmond urged in a (Louisville) Courier-Journal op-ed. The GOP has made promises to restore “regular order” in its business but has fallen short on confirming judicial nominees, Tobias wrote.

Regarding the judicial vacancy that’s gotten the most national attention — the one on the Supreme Court — The Hill reported, “Senate Minority Leader Harry Reid (D-Nev.) blocked a bipartisan animal abuse bill on Thursday amid a stalemate over Supreme Court nominee Merrick Garland.” President Obama’s nominee for the high court has been waiting more than six months for a hearing, in the face of a Senate Republican blockade.

An Entire Branch of Government is ‘Strangling,’ Senator Cautions

Booker
Booker

ON THE LATEST OBSTRUCTION OF JUDICIAL NOMINEES: “Mitch McConnell Just Tried Skipping Over Cory Booker’s Judicial Nominee Again/Instead of trying to compromise, the Majority Leader’s proposed votes are becoming more partisan” — That’s how the Leadership Conference on Civil Rights headlined, in an essay for Medium, its concerns about the latest Senate Republican obstruction of President Obama’s judicial nominees.

The unsuccessful efforts this week by Sen. Booker, D-N.J., to get confirmation votes on a judicial nominee from his state, who is African American, and several others who have been waiting the longest for action, were mentioned in Gavel Grab. The Leadership Conference highlighted Booker’s remarks on Tuesday to Sen. McConnell, R-Ky., about the damaging impact of Senate partisanship upon the federal courts:

“There is a branch of government that’s independent of ours that we are strangling right now through our inaction. Any objective understanding of the functioning of the American government should clearly state that one branch should not strangle the operations of another — undermining what is clearly in the best interest of the people.”

Booker pushed back against McConnell’s claim that numbers of nominees confirmed under Presidents Obama and Bush show no disadvantage for Obama. “This is not a partisan tit-for-tat — Bush has this much, Obama has this much — this is about the fact that we have a proliferation of judicial emergencies. That there are businesses — that our very economy, actually — is being undermined because businesses can’t get a fair hearing before the judicial branch.”

TRUMP TO ADD NINE MORE TO HIS ELEVEN: Donald Trump has pledged to expand from 11 to 20 his list of “outstanding people” whom he would consider, if elected president, for the Supreme Court, according to Politico. “We’re gonna have a total of 20 people and I will pick from that group of 20 people,” Trump said.

JUDGE GIVES WARNING TO TEXAS: “A federal judge on Tuesday ordered the state of Texas to take steps to make it perfectly clear to voters that they’re not required to possess a voter ID before they cast a ballot in the upcoming election,” Huffington Post reported. Its article was headlined, “Texas Got Caught Flouting A Court Order On Voter ID, And Now It’s Under Supervision/The state said it would ask the Supreme Court to review its voter ID law.”

Another Bid to Advance Judicial Nominees is Torpedoed

CapitolflagNO CONSENT FOR JUDICIAL NOMINEES VOTE: Sen. Cory Booker, D-N.J., urged the Senate on Tuesday to agree unanimously to vote on seven district court nominees who have been waiting the longest. But Republican Leader Mitch McConnell of Kentucky objected. He proposed a shorter list that included a long-standing African-American nominee from Tennessee and omitted a long-standing African-American nominee from New Jersey. Booker objected, proposed a vote on just those two nominees, who have been awaiting the votes the longest, and McConnell once again disagreed.

“There’s no credible reason why we’re not moving forward besides partisanship,” Booker told senators, according to NorthJersey.com. It was the latest effort to break a partisan logjam and confirm judicial nominees in a region where judicial vacancies and backlogs have drawn a “judicial emergency” designation. President Obama announced one of the nominees pushed by Booker for a vote, attorney Julien Neals of New Jersey, nineteen months ago.

A DULLER DOCKET FOR THE SUPREME COURT? The eight-member Supreme Court, hobbled by Senate Republicans’ refusal to take up the nomination of Judge Merrick Garland for a vacant seat, currently doesn’t have major cases on abortion, immigration, or affirmative action on its docket.

“Shorthanded and ideologically divided, the U.S. Supreme Court has yet to take up any cases on politically sensitive social issues in its new term starting in October, instead showing a keen interest in more technical cases of importance to business such as disputes over intellectual property,” Reuters reported. Intellectual property cases often get one-sided votes, either unanimous or a clear majority, on the court.

FORCED ARBITRATION: Not only was Wells Fargo & Co. CEO John Stumpf grilled yesterday about the bank’s stance on forced arbitration (see Gavel Grab), but Senate Banking Committee members raised the issue with federal regulators.

“Do you think forced arbitration clauses make it easier for big banks to cover up patterns of abusive misconduct?” Sen. Elizabeth Warren, D-Ma., asked Richard Cordray, director of the Consumer Financial Protection Bureau, according to The Los Angeles Times. 

“I do think so,” Cordray replied.

Cleveland.com reported that Sen. Sherrod Brown, D-Ohio, warned at the hearing about the Wells Fargo fake account scandal, “Rather than letting fraud victims have their day in court, Wells Fargo forced customers to abide by the mandatory arbitration clauses in their real accounts.” He added,  “The bank invoked the fine print on a real account to block redress on a fake one which Wells Fargo had created.” To read about support by our sister organization, Alliance for Justice, for eliminating forced arbitration and broadening access to justice, click here. 

Breaking News: Brown Questions Wells Fargo CEO on Forced Arbitration

Wells Fargo CEO John Stumpf Testifies To Senate Banking Committee Over Alleged MisconductSTUMP APPEARS BEFORE SENATE PANEL: Wells Fargo & Co. Chief Executive John Stumpf, under fire before the Senate Banking Committee about a fake account scandal, sidestepped today a question regarding the bank’s stance on forced arbitration. Here is an account from The Los Angeles Times, which said Wells Fargo customers trying to sue over fake accounts have encountered arbitration clauses as a roadblock:

“When customers sign up for accounts at Wells Fargo — and at most other banks — they sign contracts that oblige them to resolve disputes with the bank in private arbitration rather than in court. Wells Fargo has successfully argued that applies even in cases where customers have accused the bank of opening fake accounts in their names.

“The argument goes something like this: Although a customer obviously didn’t sign a contract when a fake account was created for them, agreements they signed when opening genuine accounts nevertheless require them to take all disputes with the bank to arbitration. Judges have generally agreed.

“Today, Sen. Sherrod Brown (D-Ohio) asked Wells Fargo Chief Executive John Stumpf whether the bank will continue to take that stance.

“‘I’d have to talk to my legal team,’ Stumpf said. ‘I’m not an expert in that.’”

Our sister organization, Alliance for Justice, has published at its Justice Watch blog a post titled, “Why the Wells Fargo Scandal Shows the Need to End Forced Arbitration.” The post explained, “If consumers cannot access the courts, scandals will be harder to uncover and victims will find it nearly impossible to achieve justice.”

In The Hill, Robert Weissman of Public Citizen and Lisa Donner of Americans for Financial Reform wrote an op-ed titled, “Why Wells Fargo got away with it for so long.” They wrote, “Wells Fargo contract provisions blocked consumers from suing the bank in court. It’s past time to prohibit the ‘ripoff clauses’ that prevent consumers from enforcing their most basic legal rights.”

A ‘Starving’ Federal Judiciary is Riddled With Vacancies

empty-court_shutterstock_bikeriderlondonA ‘STARVING JUDICIARY’: Thanks to Senate obstruction of President Obama’s judicial nominees,  “he will likely be the first executive in nearly two decades to leave office with federal district courts less staffed than when he was sworn in,” The District Sentinel reported.

Right now there are 75 district court vacancies, up from 41 when Obama moved into the White House, or an 83 percent increase. The District Sentinel headlined its article, “Congressional Report Details A Starving Judiciary.” You can see a Congressional Research Service report on district court vacancies by clicking here and on appeals court vacancies by clicking here; they were released by the Federation of American Scientists.

DIMMING PROSPECTS FOR GARLAND CONFIRMATION?: At Bloomberg, law professor Noah Feldman of Harvard suggested that if Hillary Clinton defeats Donald Trump in November, chances for the Senate confirming Supreme Court nominee Merrick Garland in a lame-duck session don’t look great. Feldman drew a distinction between GOP ideology and partisanship. “The upshot is that Garland’s chances for confirmation now seem smaller than they did a few months ago. … Republicans might have to sacrifice a more liberal court to protect their individual political interests. But for elected politicians, that’s an easy trade to make,” he wrote.

ALLEGATIONS OF BANKROLLING A TOP JUDGE: “A federal racketeering lawsuit involving State Farm and allegations of funneling money into the election of a state judge has been granted class-action status, potentially benefiting more than 4 million policyholders,” The Chicago Tribune reported.

The allegations involve an Illinois Supreme Court election won by Lloyd Karmeier in 2004 and his voting later with a court majority to overturn a $1 billion award against the company. Karmeier, who has just been elected the court’s next chief justice, is not named as a defendant in the RICO lawsuit, Bloomberg said. There are years of twists and turns in the litigating that led to this point, and questions raised about “dark money” in judicial elections; you can learn more from earlier Gavel Grab posts.

AFJ in the News: Congress Nears Milestone for Obstructing Judges

images1A MILESTONE IN OBSTRUCTION AHEAD? Senate Democrats are slamming Republicans for blocking not only a Supreme Court nomination but also those of 53 lower court nominees, according to The Hill. It cited our sister organization the Alliance for Justice saying that “Congress is on track to have the lowest number of confirmations since the session that ran from 1951 to 1952.”

A Democratic Senate majority confirmed 68 of Bush’s judicial nominees in his last two years in the White House compared to the Republican Senate majority’s confirming 22 of Obama’s judicial nominees in his last two years, noted Sen. Patrick Leahy, D-Vermont.

Although Republicans point to 327 of President Obama’s judges confirmed so far, compared to 325 for President George W. Bush, Nathaniel Gryll, AFJ’s legislative counsel, labeled that “meaningless.”  “Obama has had more judges confirmed because he’s had substantially more vacancies than Bush to fill,” Gryll explained. “At this point in their presidencies, Obama’s been tasked with filling approximately 60 more vacancies than Bush had faced.”

Two dispatches from Texas reflected the tensions mounting over judicial vacancies and political gamesmanship. “White House blasts Cruz, Cornyn for pushing Texas judges while blocking Supreme Court nominee,” The Dallas Morning News reported. A Houston Chronicle headline said, “Texas has a judge problem – not enough on the federal bench.”

THE ELECTION AND SUPREME COURT: Once again the Supreme Court has fallen by the wayside as an issue in the 2016 election, Chris Geidner wrote at BuzzFeed, as he published a timeline for upcoming dates when it might command public attention. He discussed the court’s commencing a new term on Oct. 3, the presidential debates, the possibility of a close Election Day vote for president, and what may unfold during the Senate’s lame-duck session.

Regarding the blockaded nomination of Judge Merrick Garland for the Supreme Court, The Hill reported, “Supreme Court fight colors battle for the Senate.” According to The Associated Press, “Justice Elena Kagan says the longer the Supreme Court is stuck with only eight members, the more it has to deal with the prospect of not being able to decide cases.” And The New York Times examined one appeal already on the docket for the Supreme Court this fall, “Supreme Court to Hear Case on Racial Bias Among Jurors.”

JUDICIAL DIVERSITY: The first Native American judge to serve on the Minnesota Supreme Court has taken her oath of office, The Associated Press said. Anne McKeig, formerly a Hennepin County district judge, was named to the high court by Gov. Mark Dayton.

Senator Criticizes ‘Most Pro-Business Court Since the Gilded Age’

supreme_court_building_515SUPREME COURT VACANCY: “Will the next Supreme Court justice restore balance to the most pro-business court since the Gilded Age?” That headline succinctly sums up the hopes and concerns of Sen. Sheldon Whitehouse, D-R.I., in an opinion piece at Medium. Whitehouse concludes:

“The prospect of a new justice opens the opportunity to revisit an array of decisions, Citizens United chief among them, that made the Roberts Court the most ‘pro-business’ court since the Gilded Age, and restore the precedents so many of these 5–4 decisions overturned. Which is why Merrick Garland, an experienced and highly respected judge, faces Republicans’ unprecedented refusal to move on his confirmation. But with as many as four Supreme Court vacancies possible in the next two presidential terms, the Court may soon be shifting in ways that reverberate for a generation. In the struggle against corporate domination of America’s economy and elections, the stakes could not be higher.”

At The Economist, an essay depicts the high court as seeming to be “stuck in standby mode,” and teetering on a divide of ideologies. “It’s a hinge,” said University of Michigan law professor Richard Primus, “on which the direction of constitutional law could turn for decades.” And there are conflicting accounts about whether if elected, Donald Trump might nominate billionaire Peter Thiel to the court, from Huffington Post and Slate.

FORCED ARBITRATION: When The Sacramento Bee editorialized this week about the fallout of a recent scandal involving Wells Fargo & Co., it put the forced arbitration issue front and center. “According to federal regulators,” it said, “bank employees – told they would lose their jobs if they failed to make gargantuan sales quotas – forged signatures and used fake email addresses to sign up bank customers for extra products without informing them. Customers often didn’t find out until a check bounced or an odd fee showed up on a statement. When they tried to sue, mandatory arbitration agreements signed with their original accounts prompted judges to dismiss their cases.” Alliance for Justice, our sister organization, supports eliminating forced arbitration.

POLITICAL MONEY, STATE JUDGES AND SUPREME COURT: Several local prosecutors  have asked the U.S. Supreme Court to review a Wisconsin Supreme Court ruling that shut down an investigation of possible violation of campaign finance laws by Gov. Scott Walker’s campaign and conservative groups in 2011 and 2012 recall elections. One of the issues the prosecutors cite is whether two Wisconsin justices should have recused, notes a Madison Capital Times editorial. They had benefitted from spending by two of the groups involved in the investigation. This week, The Guardian brought more attention to the issue with its publication of leaked documents about the “secretive influence of corporate cash on politics” in Wisconsin and the lengths to which “even judges go to solicit money.”

AFJAC in USA Today; Clinton Might Not Choose Garland

voting-boothAFJAC IN THE NEWS: Although President Obama has not yet succeeded in getting Judge Merrick Garland confirmed for the Supreme Court, “his lower court appointments could help swing the presidential election to his chosen successor,” USA Today reported, while quoting Nan Aron about presidents and the judges they name.

USA Today said certain appeals and district court judges have recently voted to invalidate voting restrictions adopted by Republican legislatures. “These decisions certainly demonstrate the critical importance of having a Democrat in the White House,” said Aron, Alliance for Justice Action Campaign president. “These laws are transparent in intent, to harass and suppress the vote in states across the country.”

Meanwhile a New Jersey Law Journal article, “Five Ways [Donald] Trump Could Change the Federal Bench in New Jersey,” cited Aron in her role as president of our sister organization, Alliance for Justice. “The Senate’s hold-up on confirmation votes might not ease even if Trump is elected,” the Journal posited. Whether Republicans keep their current majority in the Senate is the key, Aron told the publication. The article is available by a Google search.

CLINTON ON COURT VACANCY: Democratic presidential candidate Hillary Clinton said she might not choose Garland for the high court, and hinted at the possibility of a bolder choice if she is elected, Bloomberg reported. “Clinton would ‘look broadly and widely for people who represent the diversity of our country’ if she has the opportunity to make ‘any’ Supreme Court nominations,” the news service said.

Democratic Sen. Tom Udall of New Mexico has a proposal for revised Senate rules on judicial nominations, according to The Hill. Glenn Harlan Reynolds, a University of Tennessee law professor, advocated in USA Today for the election of Supreme Court justices. On the other hand, a new analysis by the Brennan Center forJustice delivered plenty of grist for critics of judicial elections; focusing on state court races, it cautioned, “Politicized and High-Dollar Races Threaten Fair and Impartial Courts.”

JUDICIAL DIVERSITY: Obama nominated prosecutor Diane Gujarati for the U.S. District Court for the Eastern District of New York, according to The American Bazaar. If confirmed, she would be  the first Indian American to serve as an Article III federal judge in New York, the National Asian Pacific American Bar Association said.

Remaking U.S. Courts to Begin Soon? More Judges Are Retiring

why-the-judicial-vacancy-crisis-should-matterREMAKING LOWER COURTS: Where are all the federal lower-court judges going? They’re retiring at a record rate, according to a Washington Examiner column by Paul Bedard, asserting this means the next president will “remake” our U.S. courts.

“At a rate of more than one a week, federal circuit and district judges are quitting full-time work and going on ‘senior status,’ which creates a bench vacancy but keeps them on the payroll to help with backlogs,” Bedard wrote.

Those judges taking “senior status” have hit a new high for the last three decades, the column added, with 56 circuit courts of appeal and district judges leaving this year compared to 38 in the final year of President George W. Bush’s administration. For more data about judicial vacancies and nominations, check out the website of our sister organization, Alliance for Justice.  

LEAHY ON SUPREME COURT VACANCY: In a Constitution Day essay for The Washington Times, Democratic Sen. Patrick Leahy of Vermont said there “is still time for the Senate to correct its course and consider Chief Judge [Merrick] Garland’s nomination” to the Supreme Court before that court convenes next month. “There should not be an empty seat on the bench when the Supreme Court convenes on the first Monday in October,” Leahy insisted. “If there is, it will represent the disrespect that Senate Republicans have not only for the president’s powers under the Constitution but for the independent judiciary that the Constitution created.” Leahy is senior Democrat on the Senate Judiciary Committee.

Nonetheless, “Senate Republican leaders are sending a blunt message to Merrick Garland: You aren’t getting on the Supreme Court this year — not even if Hillary Clinton wins in November,” CNN reported, based on remarks by Senate Majority Leader Mitch McConnell and his chief deputy, Sen. John Cornyn.

NO MORE ‘GOLDEN WEEK’: The Supreme Court declined to restore a short period of in-person early voting known as Golden Week, when Ohioans could both register to vote and cast their ballot on the same day, according to The New York Times. As viewed by Mother Jones, “The Supreme Court Just Dealt a Blow to Voting Rights Advocates.”