Not Too Late for Senate to Confirm Judges Before Adjourning, Group Says

SENATE STILL CAN CONFIRM JUDGES: “Before adjourning for the holidays,” Senate Republicans “should give the nation a gift — a slightly better staffed federal bench, with fewer judicial emergencies — by holding votes immediately” to confirm long pending judicial nominations, the Leadership Conference on Civil and Human Rights urged at Medium.

The Senate confirmed its last judicial nominee more than five months ago. It “has confirmed only two circuit court and 18 district court nominees in the 114th Congress,” and there are 25 fully vetted nominees awaiting Senate votes now, the Leadership Conference said. The nominees could be confirmed in minutes. Meanwhile, the American people are harmed by vacant judgeships, the group said, pointing to a prime example in Idaho where only one active federal judge has been at work since July 2015.

“After the 2008 election, none of George W. Bush’s nominees were left stranded on the Senate floor,” the group concluded. “In fact, a Democratic Senate confirmed 68 of Bush’s lower-court nominees in the final two years of his administration. Today, Republicans shouldn’t be rewarded for obstruction, or for their postponement of justice for many Americans.” Other coverage included McClatchy, “Waiting for [President-elect] Trump: Judicial nominees stalled as Congress readies to adjourn”; and Florida Politics, “In waning days of 114th Congress, progressive coalition presses Marco Rubio to push for voting on judicial nominees.”

STATE COURT NEWS: From Little Rock, Reuters reported, “Birth certificates issued in Arkansas must identify the biological parents even if the child is subsequently adopted by a same-sex couple, a divided state Supreme Court ruled on Thursday.”

Reuters elaborated, “A four-member court majority reversed Little Rock Circuit Judge Tim Fox’s finding in December 2015 that the state’s insistence on identifying both mother and father were infringements on the constitutional due process rights of adoptive gay and lesbian couples.”

Commentary: First Trump Court Pick a ‘Dress Rehearsal’ for the Next One

supreme_court_immigration_-04e32CRYSTAL BALL GAZING: Who will be President Trump’s first pick for the Supreme Court, and what’s down the road? More analysts are offering their views.

Nina Totenberg of NPR said the Trump-listed names of potential nominees “range from very conservative to very, very conservative.” She added, “And I would expect that the older ones and the younger ones will get knocked off. And the person will have a track record that attracted Trump and, therefore, will unattract a lot of Democrats and their constituencies.”

About Trump’s nomination for a justice to succeed the late Antonin Scalia, Totenberg said, “This, in some ways, is the dress rehearsal for the next nomination, which, if it happens, will make all the difference in the world.”

“Don’t buy Trump’s flip-flop on marriage equality. LGBT rights are anything but safe in his White House,” a Los Angeles Times op-ed by Nico Lang warned. Among other points, Lang noted that one of those on Trump’s potential nominee list, Texas Supreme Court Justice Don Willett, “once compared same-sex unions to marrying bacon.”

A blog post in The Economist said, “Two or more Trump appointments to the Supreme Court could jeopardise abortion rights,” and it noted, “It is worth reiterating that the primary role of a Supreme Court justice is to faithfully interpret the laws, not to embody an ideology or to satisfy a president’s policy wish-list. Openly treating the court’s potential occupants as mere bundles of political positions is corrosive to the rule of law and the separation of powers, two principles of American democracy for which Mr Trump has shown little regard.”

An Associated Press article was headlined, “[Supreme Court Justice Sonia] Sotomayor says nation ‘can’t afford to despair’ over Trump,” and Bloomberg BNA asked, “Trump-Era Supreme Court a Threat to Public Sector Unions?”

JUDICIAL NOMINATIONS: Could the lame-duck Senate still act on judicial nominations? In Idaho, The Spokesman-Review had an article saying, “[Sens.] Crapo, Risch standing by Judge Nye nomination, hoping for Senate vote soon.” The Oklahoman reported that Republican Sens. Jim Inhofe and James Lankford have supported two nominees for judgeships in Oklahoma City, “[a]nd they were careful this week not to declare their nominations dead” in the wake of Trump’s election.

STATE JUDICIAL ELECTIONS: The Marshall Project reported about last week’s record-breaking state Supreme Court elections, “Special interest organizations — most of which don’t have to disclose their donors under campaign finance laws — put a record $19.4 million into TV ads for judicial candidates, over half of all TV spending in these races. The Republican State Leadership Committee spent the most of any group, putting $4 million into eight different races as part of its stated effort to elect more conservative justices.” The source for the news article was an analysis from The Brennan Center for Justice on Tuesday.

Lame-Duck Session: Action Unlikely on Obama’s Judicial Nominees

CapitolflagBLEAK OUTLOOK FOR OBAMA’S REMAINING JUDICIAL PICKS: One of the most immediate impacts of the Election Day outcomes is a bleak outlook for 59 judicial nominees put forward by President Obama, according to a USA Today article. It cites a report by our sister organization, Alliance for Justice, spotlighting GOP obstructionism.

Although there is time for the Senate to act on judicial nominations in its lame-duck session, the article suggests that no pending nominees are likely to be confirmed in the wake of Republican Donald Trump’s election as president. And that’s despite the fact that during the administration of President George W. Bush, Democrats controlling the Senate ultimately confirmed all of the nominees who had gotten out of the Senate Judiciary Committee. Regarding GOP obstructionism, “A report last year by the liberal advocacy group Alliance for Justice charged that the pace of judicial nominees confirmed under the GOP-controlled Senate is the slowest in 60 years,” USA today said.

Meanwhile, the dramatic post-election change that Elizabeth Wydra, president of the Constitutional Accountability Center, labeled a “new reality” was taking hold as news media, advocates and academics assessed its impact. The Associated Press reported that even before Trump chooses a nominee for the high court, his administration could revise the Supreme Court’s agenda. “Legal challenges involving immigration, climate change, cost-free contraceptive care and transgender rights all could be affected, without any help from Congress,” depending on what the next administration does, because these challenges involve Obama administration policies, the AP said.

As Trump is expected to make choosing a Supreme Court nominee an early priority, it’s getting lots of attention. Related coverage and commentary included Jeffrey Rosen in Politico Magazine, “How President Trump Could Reshape the Supreme Court — and the Country”; Vox, “Trump on 60 Minutes: Once Roe v. Wade is overturned, women will ‘have to go to another state'”; and US News & World Report, Ilya Shapiro at Newsweek, and The Hill.

Discussing the confirmation process and barriers that Senate Democrats may raise were The New York Times, “Hard Choice for Mitch McConnell: End the Filibuster or Preserve Tradition”; Forbes, “Will Democrats Be Able to Block Trump’s Supreme Court Nominations?”; and a Los Angeles Times column, “Do Democrats still think ‘we need nine’ on the Supreme Court?”

STATE COURT ELECTION AFTERMATH: In North Carolina, there was an unusual development after a state election that promised a one-justice majority of Democrats on the state Supreme Court. Some Republican legislators were talking about possibly adding two justices to the court in a move to neutralize the Democratic majority, according to The Winston-Salem Journal. Opined a (Raleigh) News & Observer editorial, “Packing the court to offset the effect of an election would be an abuse of the legislative process.

AFJ to Fight ‘Ultraconservative Takeover’ of Federal Courts

ct-scalia-political-fight-20160214-001PROGRESSIVE GROUPS ASSESS TRUMP IMPACT: On the day after Republican Donald Trump captured the White House and Republicans retained the Senate, progressive groups assessed how the federal courts may be affected.

“At this critical moment in history for our federal courts, it is essential that we fight with all the resources at our disposal against a takeover of our courts by the anti-woman, anti-gay, anti-worker, anti-minority forces of the far right,” said Nan Aron, president of our sister group Alliance for Justice, according to The Washington Examiner. “Rarely has there been a time when the fairness and impartiality of our courts have been more at stake. We and our allies at Alliance for Justice will oppose, with every ounce of our strength, an ultraconservative takeover of our nation’s courts.”

The New York Times quoted Elizabeth Wydra, president of the Constitutional Accountability Center, as saying, “Given that many of the conservatives on his list are more in the traditional conservative mold than Trump himself, they might not simply write him a blank check when it comes to actions and policies that threaten constitutional structure.” She added, “As is the case during every administration of either party, the court will inevitably be asked to step in and serve the judicial branch’s role as a check on the political branches.”

According to The Atlantic, when it comes to Supreme Court nominees, “With advance warning about Trump’s choices, left-leaning interest groups could build extensive research on the nominees’ judicial records and personal histories. They might not be able to block a potential justice outright, but they could make the process a headache for the Trump administration and Republican senators alike.”

GRADUAL, RATHER THAN QUICK, CHANGE AHEAD?: Several analysts suggested shifts in the direction of the Supreme Court may not come quickly. Lyle Denniston wrote at his blog that “the transition to a truly different Court may not come until after the congressional elections in 2018, or even later, although that depends on the health of the more senior Justices now serving.” David Savage said in The Los Angeles Times, “Now, the court’s ideological balance should remain largely as it has been for the past decade, with Justice Anthony M. Kennedy holding the deciding vote in the court’s biggest cases.” Remarked Tony Mauro at National Law Journal (registration required), “The court prides itself on being the one branch of government that does not respond to every change blowing in the wind.” In other commentary, a Los Angeles Times essay by law professor Erwin Chemerinsky was headlined, “So long Roe vs. Wade? President Trump’s most lasting legacy could be radical change at the Supreme Court.” Linda Greenhouse wrote in The New York Times, “The Choice Confronting the Supreme Court’s Chief Justice.”

JUDICIAL NOMINATIONS: Lest dozens of federal judicial vacancies, and pending nominations to the courts, be forgotten, National Law Journal reported (registration required), “Trump Win Is Bad News for Obama Court Picks.” Other coverage included NPR, “Republicans’ Senate Tactics Leave Trump Wide Sway Over Nation’s Courts,” and Washington Examiner, “McConnell hints against nuke option to kill Dem filibusters.”

Are the Republicans Divided About New Supreme Court Stonewall?

blog_2016_01_29-b_1VARIED OPINIONS ON SUPREME COURT BLOCKADE: There was further debate about threats raised by three Republican senators of a potential indefinite blockade of Hillary Clinton’s Supreme Court choice, if Clinton is elected.

“Obama Nails Republicans For Hyper-Partisan Reversal On Supreme Court Nominees,” Huffington Post reported. A Washington Post blog said, “Senate Republicans could block Clinton Supreme Court nominees indefinitely but it wouldn’t be the best idea” politically for those doing the obstructing. In the New York Times, David Leonhardt criticized “The G.O.P.’s Radical Supreme Court Talk.”

While the idea of continued obstruction seems to be rapidly gaining mainstream status among Senate Republicans, a few have sounded notes of dissent. The Hill reported about Sen. Rob Portman of Ohio, “GOP senator: I’d consider Clinton Supreme Court pick.” Said Sen. Kelly Ayotte, R-N.H., according to New Hampshire Public Radio, “Obviously I will carefully vet whoever is proposed and make sure they’re not only qualified, but I’ll want to understand their constitutional philosophy, but I would not support the proposal to permanently block filling that court [position].”

OBAMA’S JUDICIAL LEGACY: Law.com has a multi-article analysis of President Obama’s impact on the federal judiciary (registration required). Here are excerpts:

  • Diversity: “Obama fulfilled his commitment to make the federal courts more inclusive and appointed more women, more racial and ethnic minorities and more openly gay judges than any previous president.”
  • Judicial philosophy: “Obama appointees are generally seen as centrists who approach cases from a posture of judicial restraint—and not, as one lawyer put it, judicial ‘freelancers’ willing to second guess lawmakers or bend the law to achieve a particular outcome.”
  • Supreme Court: “Turning to the court that counts the most, a statistical look at Obama’s two U.S. Supreme Court picks, Sonia Sotomayor and Elena Kagan, also concludes that they lean leftward more than right, though not by that much.”

STATE COURT ELECTIONS: In a report from Kansas, where five of seven state Supreme Court justices are up for retention (yes-or-no) election, NPR said no Kansas justice “has ever been voted out” but this year “as with national politics, the script has been thrown out, and … the Kansas Supreme Court could completely change.” Observed Alicia Bannon of the Brennan Center for Justice about increasingly partisan and negative judicial elections, “It’s essentially created an arms race, where you have a lot of money going in and interest groups basically trying to shape who’s sitting on the courts and the decision that the courts are making.”

Sen. Burr Signs on to Potential Supreme Court Nomination Blockade

Sen. Burr
Sen. Burr

ANOTHER BLOCKADE BACKER: Republican Sen. Richard Burr of North Carolina has pledged to support a blockade if Hillary Clinton is elected president and nominates a Supreme Court justice to succeed the late Justice Antonin Scalia, according to CNN. With his remarks, he echoed recent statements by Republican Sens. John McCain of Arizona and Ted Cruz of Texas.

In audio obtained by CNN, the North Carolinian predicted that Obama nominee Judge Merrick Garland would not get confirmed in the upcoming lame-duck session of the Senate. Burr added, “And if Hillary Clinton becomes president, I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court.” Alliance for Justice Action Campaign President Nan Aron declared last week about the threats raised by McCain and Cruz: “the Republican blueprint for a Hillary Clinton presidency is to obstruct and blockade the confirmations of Supreme Court nominees” (see Gavel Grab).

A different Republican view on the Senate’s failing to take up Garland’s nomination was offered by Senate candidate Wendy Long in a debate with Democratic Sen. Charles Schumer of New York, according to The Albany Times Union. Long contended “that senators acted efficiently by not engaging in the ‘charade’ of holding hearings on a nominee they weren’t going to certify,” the newspaper said.

END THE SUPREME COURT NOMINATION FILIBUSTER? If Clinton wins and Democrats take the Senate, the Democrats may move to eliminate the filibuster of Supreme Court nominations, several analysts said. The New Republic explored different rules changes that might be considered. It quoted Democratic Sen. Jeff Merkley, a leader on rules reform, as saying he hopes no rules change is needed, but “To refuse to debate someone at all, and just say a position should be left open, that is a constitutional crisis.”

At The Hill, Richard Arenberg said eliminating the filibuster would provide “a prescription for insuring a Supreme Court beset by the lamentable hyper-partisan polarization that is at the root of current congressional dysfunction.” Jeff Shesol wrote in The New Yorker that Republican lawmakers are “raising the prospect of preventing a President Clinton from making any appointments at all” and he discussed “instant currency” for an idea mentioned by some Republicans that eight or fewer justices can do the job. Kyle Sammin, meanwhile, delved into history to write a piece for The Federalist that was headlined, “Congress Has Refused To Confirm Supreme Court Justices Before, And Can Do It Again.”

JUSTICE THOMAS AFTER 25 YEARS: In one of the latest articles about Justice Clarence Thomas’s quarter century on the Supreme Court, The Washington Post reported, “For 25 years, it has been Clarence Thomas v. Controversy.”

Aron: Let the Next President Halt the Standoff Over Judicial Nominations

Aron
Aron

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.”

After ‘Corrosive’ Election, Will Judicial Nomination Blockade Stay in Place?

ted-cruz-has-just-wrapped-up-his-epic-21-hour-defund-obamacare-talk-a-thonSUPREME 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.”

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.

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 AL.com 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.