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

Booker
Booker

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.”

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.

Increasing Attention to Supreme Court as Key Topic for Presidential Debate

washington-supreme-court-building-washington-d-c-dc169ELECTION AND SUPREME COURT: With eight weeks until Election Day, “the most important topic” is the next president’s selection of Supreme Court justices, and it is “tagging along as an afterthought,” Andrew Malcolm wrote in an analysis for McClatchy.

The next president will fill one vacancy and perhaps several more due to aging justices retiring. These nominations “will reshape American life for the next generation or two as they solidify the court or tilt it in a different ideological direction,” Malcolm wrote. “Maybe, if it’s on moderator Lester Holt’s question list, the issue will finally emerge during the first debate Sept. 26, a week before the eight surviving justices reconvene.”

It’s an issue that’s quickly grabbing more attention. The Justice Watch blog of our sister organization, Alliance for Justice, highlighted this issue Sept. 9 and said that “[f]or many of us, [the appointments] will determine what our Constitution means for the rest of our lives. That’s why it’s urgent that when the presidential candidates meet for their first debate on Sept. 26, they be asked to clearly define their views on appointing Supreme Court justices.”

Justice Ruth Ginsburg, meanwhile, weighed in on the current toxic era of high court nomination battles. “Ginsburg: Both parties to blame for nomination fights,” The Associated Press reported.

OTHER JUDICIAL NOMINATIONS: Summer’s nearly over but there’s no cooling in the heated and protracted battle over other judicial nominations, with numerous appointees of President Obama’s appearing unlikely to get votes this year due to a Republican blockade. “Garland snub just the tip of judicial obstruction iceberg,” Brielle Green of Earthjustice wrote for The Hill. At Right Wing Watch, a headline said, “Conservative Groups Urge Maximum Obstruction Of Hillary Clinton’s Judicial Nominees.”

VOTING LAWS AND U.S. COURTS: Federal court rulings on state voting laws have been coming at an almost dizzying pace. In The Los Angeles Times, David Savage has spotted a pattern to recent outcomes.

“It’s no secret that partisan state legislators, once in power, frequently try to alter voting laws to give their party an advantage,” Savage asserted. “But increasingly, when those laws are challenged in federal court, the outcome appears to turn on whether the judges or justices hearing the case were appointed by Republicans or Democrats.”

Fox News Analyst: Politicians’ ‘Backroom Plots’ Targeting Courts

justice-scalesFox News commentator Juan Williams takes aim at political gamesmanship aimed at courts in a blistering column for The Hill, headlined “The GOP’s judicial logjam.”  And despite the headline, he has blame to dish out on all sides.

Noting that the Republican-led Senate’s current rate of confirmation for federal judges puts it on pace to reach the lowest number of such confirmations since 1969,  Williams calls it “just one of the many political backroom plots being played out in the Senate over control of the nation’s courts.”  He writes that the GOP strategy has also emerged in the presidential race, as candidates take aim at a Supreme Court that is seeing dramatically lower approval ratings among Republican voters.   “Between the Senate Republicans’ success at clogging the judicial appointment process and the burst of harsh rhetoric, there is a growing risk of a serious erosion of the public trust in the nation’s judicial system,” Williams adds.

Meanwhile, he remarks that “Obama also is playing the dangerous game”: neglecting thus far to nominate anyone to fill 47 of 63 vacant seats on the federal bench.

“Can the Senate expect better results with a President Hillary Clinton or President Bernie Sanders? How about President Jeb Bush or President Donald Trump? Most likely it will be more of the same,” Williams concludes.

In Op-Ed, JASC Blasts Cruz’s Court Proposal

Bert Brandenburg
Bert Brandenburg

U.S. Senator and presidential candidate Ted Cruz’s proposal to force U.S. Supreme Court justices to run in retention elections (see Gavel Grab) is “monumentally silly,” says Justice at Stake Campaign Executive Director Bert Brandenburg in a National Law Journal op-ed (available with free online log-in or through Google search).

Cruz’s proposal to amend the constitution to require periodic retention elections for the justices follows recent SCOTUS rulings on healthcare and marriage that have riled conservative critics.  The idea is fraught with both practical and ethical challenges, notes Brandenburg.

“If sending Antonin Scalia or Ruth Bader Ginsburg out on the campaign trail sounds like a Saturday Night Live skit, it’s because it would turn more than 225 years of American constitutional culture on its head,” he writes. “Our founders — who knew something about popular sovereignty — consciously avoided electing judges because they wanted courts’ rulings to be based on the law and the constitution, not political pressure.”

Cruz joins other presidential candidates who have called for term limits and other restraints on the Supreme Court in the wake of recent controversial rulings.  He has also said he will make reform of the court a central plank in his campaign platform.

Regarding Cruz Attacks on Court, National Law Journal Quotes JASC

la-la-na-cruz-supreme-courtaf-wre0030099993-20150721When Sen. Ted Cruz blistered the Supreme Court over two blockbuster rulings and called to rein in “judicial tyranny,” the National Law Journal quoted the Justice at Stake Campaign for context.

“Let’s call these ideas what they are: wholly partisan responses to a pair of rulings, on marriage and health care, that some politicians and interest groups simply do not like. That happens in our democracy, but the answer is not to change the rules to make justices accountable to political pressure. That puts us on a dangerous path indeed,” National Law Journal quoted JASC as saying. (The article, “Cruz Urges Restraints on Supreme Court’s ‘Lawlessness,'” is available through a Google search.)

Cruz advocated for a constitutional amendment to impose retention (yes-or-no) elections on Supreme Court justices, who now have life tenure under the Constitution. The candidate for the GOP presidential nomination accused the high court of “lawlessness” in what a Los Angeles Times report depicted as a bid to win primary support from Republican voters, who gave basement-level approval to the Supreme Court in a recent poll.
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Commentary: Courts Ignored by Presidential Candidates

In the final days before Nov. 6, additional scholars and analysts are remarking on the great impact the next president could have on the Supreme Court and lower federal courts, while this important topic has hardly been debated in their campaigns.

In the Los Angeles Times, Erwin Chemerinsky, dean and professor of law at the UC Irvine School of Law, wrote an op-ed saying there is great public interest about hot-button issues that may ultimately be decided by justices chosen by the next president:

“So why are the candidates ignoring this issue? Their advisors probably have told them that voters don’t care, or at least that it is unlikely to matter to the crucial undecided voters. But this may well be creating a self-fulfilling prophecy because voters won’t care unless the candidates choose to make the composition of the courts an important election issue.

“But I have seen that audiences do care greatly about the future of abortion rights, the corrosive effects of money in politics, the rights of gays and lesbians to marriage equality and so many other issues that are decided by the courts. All this and so much more will turn on who picks the next Supreme Court justices.” (more…)

Commentary: Supreme Court Keeping Low Profile for Now?

The presidential election “will almost certainly be crucial for the future of the court and the judiciary as a whole,” yet the candidates have largely avoided discussing the court, Emily Bazelon writes in Slate.

In this context the court itself has adroitly maintained a low profile in the 2012 election, in part by deferring possible decisions to take up cases involving such controversial issues as challenges to the federal Voting Rights Act and Defense of Marriage Act, Bazelon contends.

Why aren’t President Barack Obama and challenger Mitt Romney talking about the courts? “The obvious answer is that they’ve each concluded it’s not to their political advantage,” she says. To read about discussion of the courts at a debate between Vice President Joe Biden and challenger Paul Ryan, see Gavel Grab.

Bazelon’s commentary is headlined, “Above Politics: The Supreme Court is keeping a low profile this election year by deftly choosing cases that avoid the hot-button issues.”

Will Supreme Court Emerge as Major Campaign Issue?

After Rep. Paul Ryan and Vice President Joe Biden clashed over abortion and the Supreme Court’s role (see Gavel Grab), will the next high-level campaign debate bring further fireworks about the top court?

There’s plenty of news media interest in that possibility, with analysts remarking on the major role of the high court in Americans’ lives, and the brief extent to which the top national candidates have discussed it. Here are examples: CBS News, “Will the Supreme Court finally enter the 2012 campaign;” San Francisco Chronicle op-ed, “Supreme Court balance hangs on election;” and Associated Press, “Supreme Court becomes a campaign issue.”

A column by Alfred P. Doblin in New Jersey’s The Record, meanwhile, took Ryan, the GOP vice presidential candidate, to task for his knocking the Supreme Court’s justices as “unelected:”

“Ryan chose to disparage the high court by elevating elected officials as the gods of righteousness. Judging by the scandals of members of Congress on both sides of the aisle — members who have used their offices as piggy banks, lived their lives as pigs and far too often dug their snouts into troughs of public money — I would not righteously march so quickly across that bridge to nowhere.”

“Americans should be thankful that there are nine unelected justices. Conservative. Liberal. Moderate. It does not matter. These are serious people who take their jobs seriously.”

 

Supreme Court Opens Another High-Profile Term

The Supreme Court began its 2012-2013 term on Monday facing “weighty cases and a new dynamic,” according to a New York Times headline, and the court drew extensive media attention, some of it also examining how a new president might influence its composition.

The major cases alluded to by reporter Adam Liptak in the New York Times included a challenge to the core of the federal Voting Rights Act and other cases involving same-sex marriage and involving affirmative action in higher ed admissions.

The new dynamic, the article said, centers on Chief Justice John Roberts Jr., who voted with the 5-4 majority to uphold central portions of the federal Affordable Care Act this year. “Every decision of the new term will be scrutinized for signs of whether Chief Justice Roberts, who had been a reliable member of the court’s conservative wing, has moved toward the ideological center of the court,” Liptak wrote.

Meanwhile CNN had an article entitled, “Election raises stakes for possible Supreme Court vacancies,” and two articles listed potential candidates if an opening develops on the high court.

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