Constitutional ‘Crisis’? ‘Confusion’? Possible Court Blockade Debated

img_ct-apphoto_supreme_c_2_1_j39dsjnsGOP BLOCKADE A ‘SUPREME NIGHTMARE’ FOR CLINTON?: Less than a week before Election Day, the future of the Supreme Court as a paramount issue to be affected by both the presidential and Senate outcomes has sparked huge national media attention. Three Republican senators’ similar hints about blockading any Supreme Court nominee of Hillary Clinton, if she’s elected (see Gavel Grab), have fueled a once unthinkable scenario.

“There’s a potential nightmare for Hillary Clinton if she wins the presidency but Republicans hold onto control of the Senate — a blockade of her Supreme Court picks,” Bloomberg reported. “Democrats could circumvent a GOP blockade if they control the Senate by changing the chamber’s rules, even though that would be a controversial move. But a Republican-held Senate could deny Clinton the 60-vote margin needed to advance high-court picks on the floor.”

Sen. Richard Burr of North Carolina voiced support in a recorded conversation for continuing a GOP blockade of the vacancy created by Justice Antonin Scalia’s passing if Clinton is elected and selects a nominee. “An extended vacancy like the one Burr is proposing is absolutely without precedent in the history of the U.S. Supreme Court,” The Washington Post’s Wonkblog commented. Huffington Post reported about the Heritage Foundation, “Conservative Group Raises Cash To Help GOP Senators Block Supreme Court Nominees.” McClatchy asked, “Would blocking Supreme Court judges unleash constitutional confusion?” Remarked Ian Millhiser at ThinkProgress, “We may be living in the final days of the Supreme Court of the United States; Constitution, meet crisis.”

There was more coverage from The Associated Press, The Atlantic, The Guardian, Huffington Post, and MSNBC. Meanwhile, Burr and Republican Sen. Ted Cruz were were criticized by an editorial in Burr’s home state, from The Charlotte Observer. “It is ironic – no, deceitful – that these politicians claim to be ‘constitutional conservatives’ and then eviscerate the Constitution. Article II, Section 2 says the president shall appoint Supreme Court justices with the advice and consent of the Senate,” the editorial said. “That the Senate has violated that requirement since the death of Antonin Scalia is egregious enough. That Burr and Cruz would attempt to do so for four or eight years is unconscionable.” And The Asheville Citizen-Times reported that in  emailed answers to questions on Tuesday, “Burr took a more moderate stance than he did in the recorded conversation Saturday.”

GARY JOHNSON ON SUPREME COURT PICKS: Libertarian presidential candidate Gary Johnson issued a list of his potential Supreme Court appointees, according to The Atlantic. They were Circuit Judge Alex Kozinski; Randy Barnett; Circuit Judge Janet Rogers Brown; Tom Campbell; Miguel Estrada; and Jonathan Turley.

STATE COURT ELECTIONS: “Political groups are pouring millions into state Supreme Court races,” said an Associated Press headline.

Disparate Views on Shaping the Supreme Court After Election Day

supreme-courtSUPREME COURT, U.S. ELECTION, AND AFTERMATH: A recent poll finds that the Supreme Court is influencing voters more than the economy as an issue in the presidential election, according to a Tribune Washington Bureau article.

“About one quarter of the respondents listed the future of the court as an important issue. They were significantly more likely to be backing [Donald] Trump than the average voter and significantly less likely to be supporting [Hillary] Clinton,” the article said.

There was increasing commentary looking to the aftermath of the election. A Kansas City Star editorial suggested that if Clinton wins, President Obama should withdraw his nomination of Chief Judge Merrick Garland to the high court and “let the next president choose someone younger and more progressive.”

At EmpiricalSCOTUS, Adam Feldman surveyed a list of potential Clinton nominees to the high court and narrowed them down to five, including Garland. At The Federalist, Ilya Shapiro, a fellow at the Cato Institute, escalated recent talk about Senate Republicans denying Clinton a Supreme Court nominee (see Gavel Grab) in an opinion headlined, “The Senate Should Refuse To Confirm All Of Hillary Clinton’s Judicial Nominees.”

STATE ‘JUDGES … FOR SALE’?: Big spending, special interest influence and anonymous donations in state supreme court elections were getting media attention in the run-up to Election Day.

Fumed a Charlotte Observer editorial, “Special interest millions are trying to buy the N.C. Supreme Court.” It warned that “shadowy independent groups” who decline to disclose their donors “are pumping millions of dollars into North Carolina’s judicial races, undercutting the judiciary’s credibility and giving voters the impression that judges and justices are for sale.” The Billings (Mt.) Gazette reported, meanwhile, “Supreme Court race on track to break 2014 fundraising record.”

Aron: Trump Harassment Brings ‘Bad Memories for Millions of Women’


ARON ON HARASSMENT OF WOMEN: Women’s recent allegations of sexual harassment and assault against Republican presidential candidate Donald Trump “provoke a personal reaction from women,” US News & World Report reported. (Trump has denied the allegations.) US News quoted Nan Aron, president of Alliance for Justice Action Campaign, to make its point.

“‘I think for women across the country, [Trump’s alleged] misbehavior and malfeasance bring up bad memories for millions of women,” said Aron, who the article noted was also active in pressing for an investigation of then-Supreme Court nominee Clarence Thomas’s alleged harassment of Anita Hill. “It’s not just sexual assault, but every single woman in the country has experienced some form of [harassment]. For women, it resonates. It strikes a chord,” she said.

The article said the allegations against Trump are drawing some comparisons with the Hill episode in 1991. Thomas eventually was confirmed to the Supreme Court, where he now sits.

AFJAC’s Aron Quoted by USA Today on Dangers of a Trump Court

A general view of the U.S. Supreme Court in WashingtonBoth sides watching the presidential debate on Wednesday emerged with “something to cheer about” after the candidates faced off over the Supreme Court (see Gavel Grab), USA Today reported while quoting Nan Aron, president of the Alliance for Justice Action Campaign.

“A [Donald] Trump court would make America a dangerous and forbidding place for all but the wealthy and powerful, while [Hillary] Clinton’s vision for the court would serve our highest aspirations for an inclusive America where the rights of all people are protected,” Aron said.

For another view, USA Today turned to John Baker, professor emeritus at Louisiana State University Law Center. “Hopefully, Ms. Clinton doesn’t really believe in her statement that Supreme Court justices should take particular sides in cases,” he said. “That idea completely undermines the most basic principle of the rule of law that judges are to be neutral.”

Elizabeth Wydra, president of the Constitutional Accountability Center, said, “Both candidates wasted an incredible opportunity last night to educate the American people on their vision of the Constitution’s role in our society and our courts.” They moved instead, she said, to address “specific hot-button issues.”

Special Edition: In Final Debate, Candidates Clash Over Supreme Court

636125586760806870-xxx-20161019-aps-usa-091In their third and final debate, Donald Trump and Hillary Clinton gave sharply contrasting views on the Supreme Court and on Roe v. Wade. Trump said if he named several new justices, Roe would “automatically” be overturned and the issue returned to the states. Clinton said neither Roe nor marriage rights rulings should be reversed, while she advocated that “we stand up against Citizens United,” the landmark campaign finance decision from 2010.

A National Law Journal article was headlined “Trump Predicts Roe v. Wade Falls ‘Automatically’ If He Makes SCOTUS Picks,” and it is available by Google searching. While Fox debate host Chris Wallace had devoted a segment to the Supreme Court, the article said, “The final presidential debate Wednesday night left unanswered a raft of questions about the future of the U.S. Supreme Court, including the fate of nominee Merrick Garland, and instead focused on the candidates’ well-versed positions on guns and abortion.”

Democrat Clinton said, “I feel strongly that the Supreme Court needs to stand on the side of the American people, not on the side of the powerful, corporations and the wealthy,” according to The Washington Post. She “cast herself as a champion for progressive values, saying she would appoint justices who would defend women’s rights and gay rights and help to overturn the Citizens United ruling that has opened the floodgates to money in politics,” the Post reported.

She said the Senate should “go forward with the process” of confirming President Obama’s appointee to the court, although she did not mention Chief Judge Garland by name.

Trump pledged, “The justices I’m going to appoint will be pro-life, they will have a conservative bent, they will be protecting the Second Amendment.” He added, “They will interpret the Constitution the way the Founders wanted it.”

The Republican said his opponent wants to appoint justices who would severely curb gun rights, and portrayed the Second Amendment as “under absolute siege.” Clinton replied by stating an appreciation for gun-owning traditions, voiced her support for the Second Amendment and said it leaves room for reasonable regulation.

At Forbes, Michael Bobelian filled in some historical background. “Forty-eight years after [Richard] Nixon became the first major party candidate to politicize the Court during a presidential run, candidates now provide detailed explanations of the types of justices they plan to nominate,” he wrote.

CONTROVERSY CONTINUES OVER McCAIN STATEMENT: A statement on Monday by Sen. John McCain, R-Ariz., about Senate Republicans uniting to block any Supreme Court nomination in a potential Clinton administration (see Gavel Grab for background) continued to draw analysis and commentary, including Lyle Denniston in Constitution Daily, “Constitution Check: Could the Supreme Court handle a long-term vacancy?”; Media Matters, “CNN’s Jeffrey Toobin: McCain Threat Of GOP Senate Opposing All Clinton Supreme Court Nominees Is Unprecedented”; and National Review, “The Case for Shrinking the Supreme Court.”

Aron Spotlights Debate Over Supreme Court in USA Today; McCain Criticized

USATodayLogoARON ON ELECTION STAKES FOR SUPREME COURT: The stakes for the Supreme Court in next month’s presidential election are “colossal,” Nan Aron, president of our sister organization, Alliance for Justice, wrote in a USA Today op-ed on the eve of tonight’s presidential debate in Las Vegas.

“With a vacancy now long overdue to be filled, and as many as three more seats that could be filled in the next president’s first term if aging justices retire, this election could be transformative for the Supreme Court. Presidents serve for four or eight years. Justices serve lifetime tenures,” Aron wrote. She also listed a range of related questions that deserve addressing by the presidential candidates, and lamented that recent coverage of the campaigns “has been swamped by stories of sex, lies, and videotape” rather than “what could be [the next president’s] greatest legacy.”

A CNN report, meanwhile, proposed questions for the candidates. including how Hillary Clinton would name Supreme Court justices. Regarding President Obama’s long-stalled nomination of Chief Judge Merrick Garland, CNN quoted Aron as saying recently, “The Supreme Court is hobbled and the risk of deadlock on critical questions is high.”

SEN. McCAIN THRASHED OVER COMMENTS:  Several editorials thrashed Sen. John McCain, R-Ariz., over his Monday remarks — later walked back by a spokeswoman — that Senate Republicans would unite to block any Supreme Court nominees put forward by a potential future Clinton administration (see Gavel Grab).

The Washington Post editorialized, “John McCain surrenders his honor to toxic partisanship — again.” Related coverage and commentary included a Los Angeles Times editorial, “GOP obstructionism gone haywire: No new Supreme Court justices until the next Republican president?”; “Supreme Court stand-off,” a Baltimore Sun editorial warning about a potential constitutional crisis; a Kansas City Star editorial, “Republican senators’ obstruction of justice continues”; a op-ed by Jeremy Paris, “Failure to act on Merrick Garland leaves a shorthanded U.S. Supreme Court that harms all Americans; and The Hill, “Top Republican: Senate can’t ‘stonewall’ Clinton Supreme Court nominee.”

DIVERSITY IN JUDICIAL APPOINTMENTS, AND AFJ: An in-depth Law360 article (subscription or registration required) examined Obama’s record for naming diverse federal judges. It quoted AFJ’s Aron as saying about the next president’s appointments, “There’s a need to take into account professional diversity along with appointing women and people of color.”

COSTLY STATE COURT ELECTIONS LOOM: In a release, the Brennan Center for Justice reported, “Outside Spending Surges in Important State Judicial Races as Election Day Nears: In just two weeks, outside groups have poured more than $1.2 million into state supreme court contests, heightening concern about the influence of money and politics on state courts.”

Election’s High Stakes for Supreme Court; Judicial Vacancies’ Toll

voting-boothSTAKES FOR SUPREME COURT ARE HIGH ON NOV. 8: With the presidential candidates due to debate about the Supreme Court on Wednesday night, commentary on this major election issue is heating up.

Senate Republicans’ unprecedented blockade of Chief Judge Merrick Garland’s nomination to the court “has ensured that the future of the Supreme Court is at stake on Nov. 8,” former solicitor general Donald Verrilli Jr. wrote in a TIME column. And “something even more profound is on the line in this election: the public’s faith in the Supreme Court as an institution of law and not politics,” he added.

In The Atlantic, Russell Berman wrote, “Why the Supreme Court Matters More to Republicans than Trump: Conservative justices might be the party’s final bulwark against a changing electoral landscape.” A Washington Post editorial, meanwhile, disapproved of the way both candidates are discussing Supreme Court picks, saying, “Every step closer to accepting ideological litmus tests developed in the heat of political campaigns as the basis for judicial selections — every step toward putting court rulings to a vote — erodes the foundations of the judicial branch.”

‘TOLL’ OF JUDICIAL VACANCIES: Looking beyond the Supreme Court vacancy created by the passing of Justice Antonin Scalia, the Associated Press reported, “[M]ore than 90 vacancies in the federal judiciary are taking a toll on judges, the courts and Americans seeking recourse. [President] Obama has nominated replacements for more than half of those spots, including 44 nominees for the district court and seven for the appeals court. Yet the Senate has confirmed only nine district and appeals court judges this year — and only four since Scalia died.”

FLORIDA DEATH SENTENCE RULINGS: The Florida Supreme Court ruled in two associated cases that “death sentences must require a unanimous jury and struck down a newly enacted law that allowed a defendant to be sentenced to death as long as 10 of 12 jurors recommended it,” according to The Associated Press. And in other state court news, The American Prospect blogged about a recent study from Lambda Legal, “Report: Judicial Elections Fuel Anti-LGBT Bias.”

GINSBURG BACKTRACKS: According to Reuters, “U.S. Supreme Court Justice Ruth Bader Ginsburg on Friday called her criticism of National Football League player Colin Kaepernick ‘inappropriately dismissive and harsh’ and said she should not have commented on his protest against racism and police brutality in the United States.”

High Court a Topic for Next Debate; AFJAC on the Lower Courts

supreme-courtSUPREME COURT SET AS CAMPAIGN DEBATE TOPIC: When Donald Trump and Hillary Clinton debate for the third and final time, on Oct. 19 in Las Vegas, the Supreme Court will be among the planned topics, The Los Angeles Times reported.

Last month, our sister organization the Alliance for Justice urged that the candidates be asked to debate the issue. “With one vacancy on on the Court, long overdue to be filled, and three more justices who will be in their 80’s in the next president’s first term, the Supreme Court is inescapably one of the most important issues in the 2016 election,” AFJ’s Justice Watch post said.  In a debate on Sunday, Trump and Clinton fielded one question about the high court (see Gavel Grab).

AFJAC OP-ED ON LOWER FEDERAL COURTS: Nan Aron, president of Alliance for Justice Action Campaign, authored an op-ed for TIME urging Americans to consider also how the next president “will set the character and caliber of sores of appointees to [the federal] lower courts” after taking office. Aron wrote:

“In our volatile political landscape, the debate about filling a Supreme Court vacancy is highly important but not enough. Americans must decide soon which presidential candidate would select federal judges at all levels who will uphold civil rights, women’s rights, workers’ rights and other important rights. We must decide how the unrelenting Senate Republican blockade on qualified judicial nominees can be removed.

“In short, we should ask ourselves which candidate for office will make it possible for us to populate our vital lower courts with the judges who, although their names often fade in memory, help define and protect our constitutional rights and freedoms for generations.”

GARLAND NOMINATION: Supreme Court Justice Ruth Bader Ginsburg, in an interview with Charlie Rose, “stressed the importance of having nine justices on the Supreme Court” and pointed out that President Obama’s nominee, Chief Judge Merrick Garland, still could get a hearing in the Senate during its lame-duck session this year, according to TIME.

AFJ IN THE NEWS: The (Lafayette, Louisiana) Daily Advertiser mentioned Alliance for Justice when reporting on legislation sponsored by Republican Rep. Charles Boustany, titled the Ending Legacy Lawsuit Abuse Act. The newspaper said Boustany intends the measure to prevent plaintiffs’ lawyers from “venue shopping” for sympathetic courts to hear a specific kind of lawsuit. “Critics of the Fifth Circuit Court of Appeals, such as the Alliance for Justice, say decisions there favor special interests and large corporations, including oil and gas companies,” the article said.

In Midwest, Aron Quoted Criticizing Trump’s High Court Candidates

AFJAC ON TRUMP COURT PICKS: When opinion columnist Bill Knight discussed in The Pekin (Il.) Daily Times the emerging debate by the presidential candidates over the composition of the Supreme Court, he quoted Alliance for Justice Action Campaign President Nan Aron.

Those people that Donald Trump has considered for appointing to the court, if he were elected, “have been characterized as extremists likely to push partisan positions more than the logic of the Constitution as a ‘living document’ adapting to changing times,” Knight wrote. The columnist proceeded to quote Aron:

“’Taken together, the records of these potential Trump nominees reflect a radical-right ideology that threatens fundamental rights, and that favors the powerful over everyone else — especially people from historically marginalized communities,” she said. You can read Aron’s entire statement by clicking 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.