News Roundup

TRUMP WILL USE SAME SCOTUS SHORTLIST FOR NEXT VACANCY: President Trump told The Washington Times he will be using the same list of candidates for any future Supreme Court vacancies that he used to select Justice Neil Gorsuch. The list of 21 potential Supreme Court nominees was significantly influenced by the Federalist Society and The Heritage Foundation.

EXPERTS SAY BREAKING UP THE 9TH CIRCUIT WON’T BENEFIT TRUMP: President Trump has said he’s considering breaking up the 9th Circuit in an attempt to end “judge shopping.” The president has claimed that when people want a ruling against him, “Everybody immediately runs to the 9th Circuit.” However, lawyers of all political ideologies “forum shop” across the country, reported The Washington Examiner.

In comments to the Examiner, Daniel Goldberg, legal director at our sister organization Alliance for Justice, said Trump would have a difficult time accomplishing that task. “I’m not sure the president realizes that he doesn’t have the unilateral authority to break up the 9th Circuit,” Dan noted.

Even if Trump broke up the 9th Circuit, legal experts of diverse political ideologies agree that that would not necessarily achieve Trump’s desire to stop forum shopping. “You can do a lot in terms of forum shopping by going to district courts, and breaking up a circuit makes no difference in that process,” said Caroline Frederickson, president of the American Constitution Society.

Politico: Trump Plans to Announce SCOTUS Nominee Next Week

TRUMP TO DISCUSS SCOTUS WITH MCCONNELL, SCHUMER, FEINSTEIN: “President Donald Trump will meet Tuesday afternoon with Senate Majority Leader Mitch McConnell, Senate Minority Leader Chuck Schumer and Sen. Dianne Feinstein, the top Democrat on the Senate Judiciary Committee, to discuss his Supreme Court choice, according to an administration official,” Politico reported.  

McConnell stated that he is “confident we’ll get a Supreme Court nominee confirmed,” in a FOX News Sunday interview. McConnell has also refused to rule out the use of the “nuclear option,” which would reduce the majority needed to confirm the nominee from 60 to 51 votes.

According to the LA Times, Judge Neil Gorsuch is now the leading contender for Trump’s nominee to the Supreme Court. 

SENATE JUDICIARY COMMITTEE DELAYS SESSIONS VOTE: Senator Dianne Feinstein requested to delay the Senate Judiciary Committee vote on Jeff Sessions’ Attorney General nomination until next week, citing the need for more time to review the nominee and his records. “This nomination is a very big deal,” said Feinstein in an article at The Hill. “Our staff needs time to go through these answers, and we need time to put them in context.”

The vote will be held next week.

SESSIONS WILL NOT RECUSE HIMSELF FROM DOJ TRUMP INVESTIGATIONS: Sessions expressed to members of the Senate Judiciary Committee that he is “not aware of a basis to recuse myself” from investigations involving the president and does not see a problem in impartiality, despite his role in Trump’s campaign for the presidency, reported Politico. “If a specific matter arose where I believed my impartiality might reasonably be questioned, I would consult with Department ethics officials regarding the most appropriate way to proceed,” said Sessions.

CNN: Trump Has “a Good Sense” of His SCOTUS Nominee

“I THINK IN MY MIND I KNOW WHO IT IS”: Trump has “a good sense” of who he plans to nominate to the Supreme Court, according to CNN. CNN reported that Judges William Pryor and Diane Sykes are widely considered to be at the top of his list. 

Bloomberg BNA put out a short profile on Judge Steven Colloton, who is also thought to be near the top of Trump’s list. Bloomberg drew attention to two of Colloton’s opinions in favor of Tyson Foods Inc., which “are a prime example of how a more conservative court could make it harder for workers to bring wage claims against employers,” according to our sister organization Alliance for Justice. 
OBAMA’S JUDICIAL LEGACY: President Obama nominated over 300 federal judges in his presidency – most of whom were “either women, African Americans or persons of color,” reported NBC. The piece quoted the president of our sister organization, Nan Aron, who noted that unfortunately, “Republicans slow-walked or stonewalled dozens of federal judicial nominations.”

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.”

In the News: AFJ, Other Groups Worry About Courts Under Next President

TIME RUNS OUT ON JUDICIAL NOMINATIONS: Remember attorney Abid Qureshi of Washington, D.C.? “[N]ominated to the federal bench by President Obama in the fall, [he] would have been the nation’s first Muslim federal judge had the Senate confirmed him. But nominated late in a presidential election year, when traditionally few nominees get a vote, time — and politics — were always against him,” BuzzFeed News reports in a piece on judicial nominations that quotes our sister organization, the Alliance for Justice.

“With the US Senate gone for the rest of the year, Qureshi is one of 52 nominees for federal district and appeals courts and the US Supreme Court who won’t make it onto the bench, at least for now. That group includes more than a dozen nominees who, like Qureshi, would have broken racial, gender, and religious barriers.” The nominations will be sent back by the Senate early next month, according to the article.

BuzzFeed adds, “Civil rights and liberal advocacy groups, heartened by President Obama’s focus on diversity in the courts, are frustrated with the Senate’s pace on his judicial nominees— and are worried about what the bench will look like under President-elect Donald Trump.” It notes, “Nan Aron, president of the liberal group Alliance for Justice, said diverse picks in southern federal courts were especially important because of the racial imbalance among judges in the region.”

The article also quotes Christopher Kang, national director of the National Council of Asian Pacific Americans, as saying, “The question moving forward is, as you look at President-elect Trump’s picks for his cabinet, the 21 picks for the Supreme Court, they are overwhelmingly white and male, and what does that mean for courts across the country with respect to diversity and really reflecting the nation and the communities that they serve.”

One of Trump’s 21 potential candidates for the high court, Utah Supreme Court Associate Chief Justice Thomas Rex Lee, is the subject of a Bloomberg BNA mini-profile. And at Bloomberg View, Noah Feldman writes that after the successful Senate Republican blockade of nominee Judge Merrick Garland, “Supreme Court Nominations Will Never Be the Same.”

SESSIONS’ NOMINATION FOR ATTORNEY GENERAL: The Associated Press reports, “A failed voting-fraud prosecution from more than 30 years ago could re-emerge as a contentious issue during Sen. Jeff Sessions’ confirmation hearing for attorney general.” AFJ’s  Aron discussed the prosecution in a recent op-ed for The Hill. Other coverage and commentary includes Carole Joffe writing at The Hill, “Will Jeff Sessions protect abortion providers?”; Fox News, “Lobbying push in full swing to confirm Sessions as AG”; and Earl Ofari Hutchinson at Huffington Post, “Jeff Sessions Is The Final Step In The GOP Plan For Permanent National Political Control.”

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.”