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 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.

Candidates Analyzed on Court Picks; ‘Justice Delayed’ by Gamesmanship

748869-20161010-trump-clintonSUPREME COURT AND ELECTION YEAR: Now that selection of Supreme Court justices has emerged as an issue for the presidential candidates to debate face to face (see Gavel Grab), the approaches that Donald Trump and Hillary Clinton articulated on Sunday night are getting more commentary and analysis.

Huffington Post reported, “Clinton provided a substantive view squarely aimed at her base, hinting that her choices may resemble a justice who’s already serving on the court: Sonia Sotomayor.” Clinton’s “expanded definition and nod to trial experience fit Sotomayor to a tee,” Cristian Farias wrote.

An alternative view came from The Washington Times, where S.A. Miller asserted, “Hillary Clinton ended up helping Donald Trump repair some of the damage from his lewd comments about women this weekend when she ran hard left on the Supreme Court — reinforcing the one overriding reason conservative Republicans have for voting for their flawed presidential nominee.”

JUDICIAL NOMINATIONS: A USA Today editorial, meanwhile, lamented “Justice Delayed” as a result of Senate gamesmanship on judicial nominations, not only involving Judge Merrick Garland’s nomination to the Supreme Court but also dozens of lower court seats. The editorial linked to data from our sister organization, Alliance for Justice, about judicial vacancies:

“The Republican-led Senate sure knows how to make history, but not in a good way. By leaving town Sept. 28 without acting on the nomination of Merrick Garland to the Supreme Court, it has left a nominee hanging for an unprecedented six-and-a-half-months without so much as a hearing — and left the Supreme Court limping along one justice short and vulnerable to more tie votes.

“The foot-dragging extends well beyond the Supreme Court to the rest of the federal judiciary, where more than 50 other Obama nominees await hearings or confirmation votes.”

KANSAS COURT ELECTION AND ‘REVENGE POLITICS’: In a column for The Kansas City Star, Steve Rose condemned “revenge politics” behind a move by conservatives to oust four state Supreme Court justices in retention (up-or-down) elections next month. It’s among state judicial elections gaining the most attention for efforts to knock off impartial judges through the use of partisan politics this year; Rose said critics are promoting criminal justice issues but “the real motive … is to neuter the Supreme Court,” which has issued “courageous” rulings on inadequate school funding and angered legislators.

“Injecting politics into an independent judiciary could be dangerous. That certainly would have a chilling effect on future Supreme Court justices,” Rose wrote.

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


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 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. 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. 

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.

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.

High Stakes for Courts on Election Day; AFJ in the News

VOTERU.S. COURTS AND THE ELECTION: Just how central is the presidential election for the future of all U.S. courts? “Fate of federal courts rests with the next president,” declares the headline for an essay by John G. Malcolm and Tiffany H. Bates of the Heritage Foundation’s Center for Legal and Judicial Studies in The San Diego Union-Tribune.

Taking into consideration the current vacancy on the Supreme Court and more vacancies that are likely, as well as the hugely important role of the lower federal courts, the authors conclude, “The next president will have the opportunity to leave a massive imprint on the federal courts for a generation or more. The stakes are high indeed.”

With the presidential campaigns entering the home stretch,  Senate Republicans continued what Media Matters for America calls “Unprecedented Obstruction” on President Obama’s Supreme Court nomination of Judge Merrick Garland and numerous lower-court nominations; Media Matters cites Alliance for Justice data to drive home its point. Both Garland and Vice President Joe Biden visited Capitol Hill on Thursday as part of a new push for Garland’s confirmation “in the face of a united Republican blockade,” according to The Washington Post.

Meanwhile the Daily 202 blog of the Post asks, “Did Obama squander an opportunity by nominating Merrick Garland?” The blog reports, “Some Democrats privately fear that Obama blew an opportunity to help re-activate the coalition that elected him twice by not picking a more progressive nominee – especially a minority candidate – to replace the late Antonin Scalia. Had Obama nominated someone who really ginned up the Democratic base, perhaps [Hillary] Clinton and the party would have more whole-heartedly embraced him or her.”

QURESHI NOMINATION: The Atlantic takes a look at the long history of nominations that have diversified the federal judiciary with individuals of varying religious affiliations. Obama’s nomination of Abid Qureshi of Washington to become the first Muslim American federal judge caps this president’s “legacy of diversifying the judiciary, but the Senate seems unlikely to act on it,” The Atlantic says.

ROE V. WADE AND NEW YORK LAW: “As legislation that would codify the Roe v. Wade decision into state law repeatedly has stalled, [New York] state Attorney General Eric Schneiderman on Thursday issued a legal opinion that current state law cannot diminish health protections afforded under that landmark Supreme Court decision or others that have come since,” according to The Albany Times Union.

Renewed Pressure to Lift Blockade, and a Historic Judicial Nominee

Crwp4DAXYAA-OqqGARLAND NOMINATION: Senate Democrats and supporters of Supreme Court nominee Judge Merrick Garland took their efforts to step up pressure for his confirmation to the sidewalk outside the nation’s highest highest court today. Yet Senate Republicans weren’t yielding any ground in refusing to act.

We Need Nine, a group allied with the White House, held a news conference outside the court with former Garland law clerks and Democratic senators. “Republicans have deadlocked our entire system of justice because of the Republican Senate’s dysfunction,” Senate Minority Leader Harry Reid said in advance of the event, according to ReutersNPR reported about the nominee’s record wait, “170-Plus Days And Counting: GOP Unlikely To End Supreme Court Blockade Soon,” and a Huffington Post headline said, “Harry Reid Vows To Jam Up Committee Meetings Until GOP Moves On Supreme Court Vacancy.”

OTHER NOMINATIONS: Will some other judicial nominees advance? The Senate Judiciary Committee was to consider nominees for five district court judgeships in case-backlogged Texas today, as reported by The Texas Tribune. To learn more about what’s going on in Texas, see this Alliance for Justice web page: John Cornyn and Ted Cruz’s Texas: a State of Judicial Emergency.

And on Thursday, the committee is scheduled to vote during a business meeting on three district court nominees. The American Bar Association, meanwhile, issued a statement by president Linda Klein saying the number of judicial vacancies has almost doubled over the course of this Congress to 89 and urging action to promptly schedule floor votes on 20 district court nominees now pending on the Senate calendar.

HISTORIC FIRST: According to The Washington Examiner and other news media, President Obama nominated Latham & Watkins law partner Abid Riaz Qureshi to the U.S. District Court for the District of Columbia on Tuesday, and Qureshi is the first Muslim American nominated for the federal bench. “I commend President Obama for taking this important step in continuing to pick the best and brightest from every community to serve as part of our nation’s judiciary,” said Farhana Khera, executive director of Muslim Advocates.