Article: His Judges Are the Obama Legacy That Republicans ‘Can’t Undo’

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.”

AFJ: Nomination Fight Could Be Biggest in Supreme Court’s History

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.”

NY Times on Sessions: ‘Little Hope That He Has Changed’ His Thinking

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.”

With a Grilling Looming, Confirmation Hearing for Sessions Under Way

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.

AFJ: Sessions Not in Same League as Key Former Attorneys General

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 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.

NY Times Editorial Demands to Know, ‘What Are You Hiding, Jeff Sessions?’

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”;, “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.”

SUPREME COURT VACANCY: “Fresh off spending more than $7 million to keep [a Supreme Court] seat vacant under President Barack Obama, the deep-pocketed Judicial Crisis Network will plow at least $10 million into advertisements urging a number of moderate Senate Democrats to support [Donald] Trump’s choice,” Politico reported. Federal appeals court Judge Thomas Hardiman, on a list of potential Trump picks, was profiled by Newsweek, and David Lat handicapped Trump’s “shortlist” at Above the Law blog.

More Opposition to Sen. Sessions as his Confirmation Hearings Loom

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.”

NAACP Faults Sessions on Voting Rights, Prosecutions, Past Remarks

‘MASSIVE RESISTANCE’ TO SESSIONS’ CONFIRMATION: A drumbeat of criticism leveled against Attorney General nominee Jeff Sessions, a Republican senator from Alabama, over past racially hostile statements and conduct continues to mount.

A sit-in by civil rights activists at his office in Mobile resulted in six arrests, including that of the national NAACP president and CEO, Cornell William Brooks. Here are excerpts from a NPR report:

“The NAACP highlighted Sessions’ history with voting rights as a major factor in the protest. Brooks told The Associated Press that Sessions ‘does not acknowledge the reality of voter suppression while mouthing faith in the myth of voter fraud.’ He also noted that Sessions once prosecuted civil rights activists on charges of voter fraud. As NPR’s Nina Totenberg has reported, those charges were dismissed by a jury, and civil rights groups described the prosecution as attempted intimidation of black voters.”

“The NAACP cited Sessions’ ‘record of racially offensive remarks and behavior’ as another reason the group objects to his nomination.”

Former Massachusetts governor Deval Patrick, who once participated in the defense team representing the activists acquitted of voter fraud, issued a “scathing indictment” of Sessions, according to Mother Jones USA Today reported, “Alabama family divided on Jeff Sessions’ AG nomination,” while Rich Lowry wrote in Politico, “The Sessions smear.” An Esquire headline declared, “Jeff Sessions’ Attorney General Bid Is Encountering Massive Resistance.”

McCONNELL DISMISSES SCHUMER WARNING: NBC News reported, “Senate Majority Leader Mitch McConnell dismissed a pledge from his Democratic counterpart to block President-elect Donald Trump’s Supreme Court nominee, insisting ‘the American people simply will not tolerate’ such a move” (see Gavel Grab for background about Democratic Leader Sen. Charles Schumer’s statements, responding in part to a year-long GOP blockade of President Obama’s nominee for the court).

Politico had an article about “the Supreme Court war” between the two Senate leaders that’s beginning. A New York Times op-ed by Richard A. Arenberg, meanwhile, asserted that Republicans ought not weaken the filibuster, and Amber Phillips wrote in The Fix blog of The Washington Post, “Politically, Senate Democrats don’t have nearly as much cover as Republicans did last year to block a president’s Supreme Court nominee, which means their attempts to do so could backfire and potentially even do more harm to their already grim hopes in 2018 of trying to take back control of the Senate.”

AFJ IN THE NEWS: Our sister organization Alliance for Justice was cited as the source for’s saying in an editorial that federal judge nominee Julien Neals’ “wait is longer than any other current nominee.” The editorial said Neals should be a federal judge.

On Supreme Court Nominations, Democratic Leader Takes a Hard Line


SEN. SCHUMER INTERVIEWED ON MSNBC: Senate Democratic Leader Charles Schumer staked out on Tuesday a hard line over whomever President-elect Trump may pick for a Supreme Court vacancy.  “We are not going to settle on a Supreme Court nominee,” he said on MSNBC, according to Politico. “If they don’t appoint someone who’s really good, we’re gonna oppose him tooth and nail.”

“When asked by host Rachel Maddow whether he would do his best to keep the [Justice Antonin] Scalia vacancy open, Schumer responded without hesitation: ‘Absolutely,’” Politico added. The New York senator said there would be “consequences” ahead for Senate Republicans’ blockade of President Obama’s nominee to the high court, Judge Merrick Garland; that nomination expired this week when members of the 115th Congress took their oaths of office, NBC News said.

In related coverage, Jeffrey Toobin wrote in The New Yorker that “speed matters” when it comes to stopping a Supreme Court nominee, and he explored the Senate’s stonewalling of Garland’s nomination last year and the defeat of nominee Robert Bork in 1987. Robert Barnes of The Washington Post asserted that “it won’t be Mr. Trump’s first Supreme Court pick who will seal the court’s ideological direction for a generation. It will be, if and when it happens, his second.” A Los Angeles Times editorial condemned Republicans’ inaction on both the Garland appointment and those of lower-court nominees as “extreme and inexcusable.”

SESSIONS CONFIRMATION BATTLE A ‘PREVIEW’? CNN, meanwhile, reported, “Liberal groups are holding standing-room-only meetings to prepare for the confirmation hearings of Sen. Jeff Sessions for attorney general, but many in the room believe the battle will be a dry run for a much bigger fight: the confirmation of Donald Trump’s eventual Supreme Court nominee.”

Regarding coalition efforts to drive home to supporters the importance of the Supreme Court, President Nan Aron of our sister organization Alliance for Justice told CNN, “In the background lurks this very fixed idea that we are looking at a stolen seat, a seat that should have been filled by an Obama nominee who was forward looking not backward in his view of the Constitution.”

AFJ’s tracking of Sessions’ incomplete replies to a Senate questionnaire (see Gavel Grab) was mentioned in an opinion by Joan Walsh in The Nation, titled “Congressional Resistance to Trump Begins Now.” Other coverage and commentary included a Washington Post op-ed by J. Gerald Hebert, Joseph D. Rich and William Yeomans, “Jeff Sessions says he handled these civil rights cases. He barely touched them”; Washington Post, “More than 1100 law school professors nationwide oppose Sessions’s nomination as attorney general”; NBC News, “NAACP Stages Sit-In to Protest Jeff Sessions’ Attorney General Nomination”; Michael Tanner of The Cato Institute in National Review, “Conservatives Should Think Twice before Supporting Jeff Sessions”; and Marge Baker of People for the American Way in Huffington Post, “Jeff Sessions’ Relationship With Breitbart, ‘The Platform’ For The White Nationalist Alt-Right, Should Be Disqualifying.”

Sessions Withholds Years of Records, AFJ Accuses Him of Hypocrisy

MEDIA SPOTLIGHT ON GAPS IN SESSIONS’ RECORDS: After progressive groups including Alliance for Justice, our sister organization, spotlighted decades of records that Sen. Jeff Sessions has withheld from his replies to a Senate questionnaire, national news media jumped on the story over the long holiday weekend.

Huffington Post said Sessions, the Attorney General nominee, “left out major details from his years as U.S. attorney for the Southern District of Alabama, from 1981 to 1993; as attorney general of Alabama, from 1995 to 1997; and as a first-term U.S. senator, from 1997 to 2002. The gaps encompass the time, for example, when Sessions was nominated to be a federal judge in 1986 ― and then rejected after being deemed too racist.”

It also said Sessions in the past “has chided previous nominees for failing to provide the committee with a full account of their backgrounds,” and quoted AFJ President Nan Aron as saying, “Sen. Sessions’ nomination package is still nowhere near ready for prime time, and it’s hypocritical that he so frequently slammed past nominees for submitting incomplete documents only to do the same thing himself.” Aron added, “So why not just slow down, give everyone the time they need to find everything and review everything, and not rush this really critical nomination through without allowing for due diligence.” Also reporting on the groups’ concerns and requests for a delay in his confirmation hearings were CNN and The Hill.

Meanwhile the Rev. Jesse Jackson wrote a Chicago Sun-Times commentary, titled “Civil rights at risk under Sessions,” and reported, “NAACP National President to appear in Mobile to protest Sessions.”

TRUMP NARROWING LIST FOR SUPREME COURT? President-elect Trump’s eight frontrunners for a Supreme Court vacancy, according to Politico, are Judges William Pryor, Diane Sykes, Raymond Kethledge, Joan Larsen, Neil Gorsuch, Steven Colloton, Raymond Gruender, and Thomas Hardiman.

A separate Politico article suggested that Trump’s transition team is engaged in a dual-track selection process. “The thinking inside the transition, according to multiple people involved in the internal deliberations, is that [Justice Antonin] Scalia’s replacement offers Trump and the conservative movement the best chance for an unabashedly rock-ribbed replacement because it would not fundamentally shift the court’s balance of power,” according to Politico. Its article continued:

“But in the current search process, Trump’s team is also hoping to identify a conservative candidate — possibly a woman — who could be more politically palatable, or at least harder for Senate Democrats to oppose, if [Justices] Kennedy or Ginsburg leave the court.”

In related coverage, The Guardian reported, “Where the supreme court battle goes from here: ‘There will be a huge fight.'”