NY Times: Survival of Independent Court at Stake in Next Congress

Justices of the U.S. Supreme Court pose for formal group photo in the East Conference Room in WashingtonA New York Times editorial aimed scathing criticism at Senate Republicans who have threatened to keep the Supreme Court shorthanded indefinitely if Hillary Clinton is elected: “Today’s Republicans are essentially saying the court is nothing but another political body, and that justices should be treated as ideological sock puppets of the president who nominated them. Yes, the justices come with political beliefs and backgrounds, but that makes it all the more important to demand that they work harder than the rest of us to struggle against their biases and preserve their independence.”

“The indefinite blockade not only hobbles the justices’ ability to resolve current cases, it takes open aim at the court’s legitimacy as the sole unelected branch of government,” the editorial said. It said the stonewallers want to toss out political norms to keep a conservative majority on the high court. “This majority, they hope, would promote a worldview where fewer people have rights, where women do not have reproductive choices, where lawmakers can make it harder for minorities to vote, where religious people are free to disregard laws protecting people they don’t like. Such a court could use a severe interpretation of the Constitution to ensure that American politics can be flooded with unlimited money, that reasonable gun restrictions are struck down, that corporate interests prevail over those of consumers, and that basic environmental regulations are turned back.”

“In the next Congress, regardless of who wins on Tuesday, the very survival of the court as an independent body will be at stake,” the editorial concluded.

At Daily Kos, an article examined more than a dozen vacant federal judgeships in Texas, which have been deemed “judicial emergencies,” and their impact in permitting some conservative judges in the state to “to block [President] Obama’s policies nationwide.” Nan Aron, president of our sister organization Alliance for Justice, condemned “an unprecedented power grab” at work and said, “Texas is unique given the large number of vacancies.” She added, “It’s also unique in the sense that you’ve got a very aggressive attorney general’s office which is engaging in forum shopping, making sure that the right judges will hear the cases and make decisions favorable to that attorney general’s office.” The Daily Kos article said citizens are seeing “global consequences of the systemic stonewalling of judicial appointments Republicans have engaged in.”

At Bloomberg, law professor Noah Feldman had an essay titled, “Election Day Is a Turning Point for Supreme Court.”

Grassley Outlines Plans If Judge Merrick Garland is Nominated Again

grassleyGRASSLEY DETAILS PLANS: “Sen. Charles Grassley said Thursday afternoon that he would not hold confirmation hearings for Merrick Garland during the lame duck session, even if Hillary Clinton wins the presidency,” The (Knoxville, Ia.) Journal Express reported. “However, should Clinton win and renominate Garland, and if the Republicans hold on to the Senate majority, he would begin the confirmation process.”

That news about Senate Judiciary Committee Chairman Grassley seemed to seal the likelihood of no hearings on Judge Garland’s nomination to the Supreme Court in the upcoming lame duck  session. What may unfold next year, if Clinton is president and the Senate is controlled by Republicans, remained the topic of speculation and controversy despite the Journal Express report.

“That Supreme Court Stonewall May Not Crumble Anytime Soon,” a New York Times headline declared. And a headline in The Hill said, “Heritage calling for Supreme Court blockade if Clinton wins.”  Yet Politico reported about an Arkansas Republican, “Sen. Cotton won’t join indefinite Supreme Court blockade.” A Dallas Morning News article also reflected divergent GOP stances, saying, “Cruz, other senators suggest blocking Clinton Supreme Court nominees, while Cornyn would consider them.” And The Associated Press reported about Republican Sen. Richard Burr (see Gavel Grab), “North Carolina Sen. Richard Burr is walking back from his promise to block any nominees Democrat Hillary Clinton would make to the U.S. Supreme Court if she’s elected president.”

On the opinion front, Steve Chapman wrote in The Chicago Tribune about Franklin D. Roosevelt’s efforts to increase the court’s size in 1937 and said, “There is nothing sacred about the number nine. But changing the size of the court in an attempt to influence how it decides future cases would be a cynical assault on the judiciary and republican government — as it was seen to be in 1937.”

STATE COURT ELECTIONS: A National Law Journal article (available by Google search) said state judicial elections on Tuesday also are grabbing media attention, and for good reason: “Tuesday’s judicial elections promise to surpass past spending on television ads, with a record $14 million spent by outside groups so far on races for state Supreme Court seats.” The Brennan Center for Justice had the latest statistics here.

Fresh Hope for Garland Nomination?

AP_garland_as_160316_31x13_1600MERRICK GARLAND NOMINATION: Public debate over the long-stalled nomination of Chief Judge Merrick Garland to the Supreme Court has been “reignited” after comments by Republican Sen. Jeff Flake of Arizona, who said that if Hillary Clinton wins the White House on Nov. 8, Republicans should proceed with hearings in the lame-duck session, according to The Washington Post.

In addition, “the new Supreme Court calendar suggests that the remaining eight justices are altering their workload in case they have a new colleague on the bench in January,” the Post said. CNN’s Joan Biskupic, meanwhile, offered an analysis that Clinton, if elected, ultimately might stick with President Obama’s nomination of Garland, which the Republican-led Senate has so far refused to consider.

Biskupic also listed other potential Clinton nominees, including the following: “Sri Srinivasan, an Indian-American who is also on the DC Circuit Court of Appeals; Paul Watford, an African-American on the California-based US Court of Appeals for the 9th Circuit; and Ketanji Brown Jackson, a trial judge on the federal district court in Washington, DC. She would be the first African-American woman justice, as would be California Supreme Court Justice Leondra Kruger, another name raised as a possibility based on her background and credentials.” The Associated Press carried these related articles: “Why It Matters: Supreme Court”; and “Short-handed Supreme Court delays action in 3 cases.”

COMMENTARY ON JUSTICE THOMAS: Supreme Court Justice Clarence Thomas was beginning his second quarter-century on the court this week. A Washington Post commentary by Mark Paoletta was headlined, “Why doesn’t Clarence Thomas get his due? He’s a black man who challenged liberal orthodoxy.” At USA Today, Richard Wolf reported that with Justice Antonin Scalia deceased, if next month’s election brings about a liberal majority, then “That could make Thomas — a happy legal warrior among friends and allies, yet to the public an enigmatic loner — less powerful but more influential for the remainder of his career.”

Judge Grants Floridians Another Week to Register to Vote

voter-registrationJUDGE EXTENDS VOTER REGISTRATION DEADLINE: The rising role of lower federal courts in deciding voting law challenges has been mentioned by Gavel Grab, and now a federal district judge in Florida has decided a different type of voting issue: He extended until Oct. 18 a deadline for people to register to vote because of the harm caused by Hurricane Matthew.

District Judge Mark E. Walker agreed on Wednesday to the extension, according to CNN. “We’ll now be able to make up for lost time and help register people whose lives were disrupted by the storm,” said Pamela Goodman, president of the League of Women Voters of Florida. “Our goal is to help every Floridian register, vote, and be heard, and we’re grateful that the storm did not silence their voices.”

SUPREME COURT TO HEAR LAWSUIT AGAINST ASHCROFT: The Washington Post reported, “The Supreme Court on Tuesday said it would consider a long-running lawsuit against former attorney general John D. Ashcroft and other top officials filed by immigrants who say they were racially profiled and illegally detained after the Sept. 11, 2001, attacks.”

Does racial bias trump jury room secrecy? The Supreme Court heard oral arguments on Tuesday in Pena-Rodriguez v. Colorado, a case that raises the issue. Lawyers for a defendant in a sexual assault trial contend his rights to an impartial jury were violated after one juror told two others, “I think he did it because he’s Mexican and Mexican men take whatever they want.” You can learn more from a Reuters article or from a blog of our sister organization, Alliance for Justice.

DOING THE MATH ON THE GARLAND NOMINATION: ThinkProgress has come up with a new way of doing the math on the long-stalled nomination of Judge Merrick Garland to the Supreme Court. It reported, “15 Republican senators openly oppose [Donald] Trump. 14 are blocking a Supreme Court nominee for him anyway.”

With one seat vacant, meanwhile, the “justices are chugging along in the slow lane,” according to The Economist. A Chicago Sun-Times editorial documented the “harm of [the] short-handed court,” and said it “hobbles along.”

Aron Op-Ed: Trump’s High Court Picks Would Roll Back Century of Progress

gty_supreme_ct_jrl_160520_12x5_1600Only days before the second presidential candidate debate, Alliance for Justice Action Campaign President Nan Aron warned in a Huffington Post op-ed that Donald Trump’s potential Supreme Court picks “would roll back a century of economic and social progress.”

“The most frightening part is that the stakes this year couldn’t be higher. Whoever is elected president in November will likely determine what the Constitution means for the rest of our lives,” Aron wrote, alluding to one vacancy existing on the high court and the possibility the next president will be faced with filling even more seats if aging justices vacate them.

Discussing the records of a number of people named by Trump as potential Supreme Court picks, Aron said, “[T]he men and women that Donald Trump wants on the Court have clear records of hostility to rights and freedoms we all take for granted.”

“[O]nce Americans learn what these individuals really stand for,” she concluded, “our bet is that – like Trump Steaks – the public won’t buy what Trump is selling. Our research into voter attitudes has found that, overwhelmingly, Americans expect Supreme Court justices to ensure that the Constitution protects all of us, not just special interests. Voters care deeply about the Supreme Court. They want justices who will support the principle of liberty, equality, and justice for all of us. Donald Trump’s Supreme Court justices, by contrast, would roll back a century of economic and social progress.”

A Short-handed SCOTUS Opens for Business

justice-scalesAlthough the traditional “First Monday” arguments won’t take place until tomorrow, after the Jewish holiday, the Supreme Court officially started its new term today – with one vacancy still remaining.  A flurry of articles and editorials commented on how the short-handed Court will function, including pieces in The Washington Post, The New York Times,  Reuters, McClatchy, and the Los Angeles Times.    Several noted that without a full complement of justices, the Court may find itself unable to resolve key questions of law.

Meanwhile, the Supreme Court on its first day declined to weigh in on two closely-watched issues.  One was the appeal of a ruling in Wisconsin’s “John Doe” case involving Gov. Scott Walker’s anti-recall campaign.  According to the Wisconsin State Journal, the Court declined to hear the appeal of three Democratic district attorneys, who were requesting a reopening of the investigation into alleged illegal coordination between Walker’s campaign and outside interest groups including the conservative Club for Growth.  The same interest groups were known to have supported the campaigns of conservative state Supreme Court justices, an issue that came under scrutiny when the court shut down the investigation into Walker’s campaign. According to the Journal, UC-Irvine law professor Rick Hasen observed,”A short-handed court split ideologically 4-4 may have been especially reluctant to delve into this politically sensitive case. Still the question of judicial recusal of judges who directly benefited from the Club for Growth’s campaign activities merited review.”

The Court also decided not to accede to the Obama administration’s request to reconsider the president’s plan to spare millions of immigrants from deportation, according to Reuters.  The Court deadlocked 4-4 over the issue last summer.

The Huffington Post took note not only of the Supreme Court’s short-handedness but of the failure to confirm scores of judges to lower federal court seats in a piece quoting Nan Aron in her role as President of our sister organization, the Alliance for Justice. Referring to Republicans in the Senate, Nan said, “What they’re doing is holding open these seats for a future Republican president to put in individuals who side with the wealthy and the powerful. That’s what this is about.”

And in state court news, the Alabama Court of the Judiciary has suspended Alabama Chief Justice Roy Moore from the bench without pay for the rest of his term.  According to NPR, Moore violated judicial ethics when he ordered state judges not to respect the U.S. Supreme Court’s ruling affirming marriage equality.

Huffington Post Cites Aron on SCOTUS Oversight in Debate

washington-supreme-court-building-washington-d-c-dc169SCOTUS CONSPICUOUSLY ABSENT FROM FIRST DEBATE:  Although the presidential election will have an enormous impact on the future makeup of the Supreme Court, that topic was notably absent from the agenda of the first Trump-Clinton debate. The Huffington Post’s Cristian Farias pointed out the oversight in a piece headlined “One Issue That Could Reshape America For A Generation Was Snubbed At The Debate,” and quoted Nan Aron in her role as President of  our sister organization, Alliance for Justice.  “It’s disappointing that one of the most critical issues facing our democracy, the future of the Supreme Court, didn’t get any airtime in tonight’s debate,” Nan said.  The Huffington Post piece went on to urge that the Court get coverage in the remaining presidential debates as well as the upcoming vice presidential debate.

Meanwhile, Noah Feldman in a piece for Bloomberg View offered analysis of why the SCOTUS issue failed to come up at the first debate, and why it has received less attention on the campaign trail than some might have expected.  Prof. Feldman’s take: neither candidate believes he or she can gain an edge by highlighting the Court as a campaign issue.  Donald Trump, Feldman writes, can’t promise to remake the Court as he would likely get only the chance to replace the late Justice Scalia with another conservative judge, thereby maintaining the status quo.  Meanwhile, although a Hillary Clinton appointment to replace Scalia could shift the balance on the Court, Feldman opines that “it isn’t good politics for her to trumpet a liberal transformation of the court when she’s trying to win over the median voter.”

CLIMATE PROTECTION PLAN HANGS BY A THREAD IN FEDERAL COURT:  The Hill reports that the EPA’s Clean Power Plan, a central feature of  President Obama’s second-term climate agenda, is in the hands of the DC Circuit Court of Appeals after the Supreme Court put its implementation on hold earlier this year.  The Clean Power Plan is often cited as a primary example of the Supreme Court’s, and federal courts’, influence in the environmental arena.  According to The Hill, it’s unclear whether the plan will survive the current federal court scrutiny.  Its implementation was halted in February by a Supreme Court ruling that sent it down to the lower court for review; the Court’s action was among the last joined by Justice Antonin Scalia before his death days later.

With Debate Looming, Analysts Ponder SCOTUS’s Future

n-SUPREME-COURT-large570SUPREME COURT HANGING IN THE BALANCE: With the first presidential debate set for tonight, court-watchers’ focus on how the election will affect the Supreme Court is intensifying. In a piece for The New York Times,  Adam Liptak notes:  “In Chief Justice John G. Roberts Jr.’s 11 years on the Supreme Court, his unfolding legacy has been marked by a debate over whether his very occasional liberal votes in major cases were the acts of a statesman devoted to his institution, a traitor to his principles or the legal umpire he said he aspired to be at his confirmation hearings. This election could settle that debate.”  Meanwhile, Jeffrey Toobin posts a comprehensive analysis of a Supreme Court “In the balance” at The New Yorker, noting, “The Supreme Court has leaned right for decades. Is that about to change?”

SCOTUS WEIGHING JOHN DOE CASE:  Also at The New Yorker, Lincoln Caplan has a piece on why the Supreme Court should take up the appeal of a Wisconsin Supreme Court ruling halting the so-called “John Doe” investigation involving Gov. Scott Walker’s recall election. Caplan writes: “The case is about the seemingly peripheral issue of judicial recusal. But it brings together two of the biggest disrupters of American democracy today: the surge, after the Citizens United decision struck down limits on independent spending, of private influence in elections; and the politicization of the highest courts in many states. For the past eight years, Wisconsin has been a laboratory testing the toxicity of this combination.”

 

 

 

 

 

Sotomayor Sees ‘Injustice’ From Inadequate Legal Representation

Official Portrait of Justice Sonia SotomayorSOTOMAYOR ON LEGAL REPRESENTATION: Addressing law students in Wisconsin, Supreme Court Justice Sonia Sotomayor voiced concern that in some areas of the justice system, there is a greater need to ensure adequate legal representation for people using the courts.

“For me, the lack of legal representation in some critical areas is one of the things we don’t do well,” she said, according to The (Milwaukee) Journal Sentinel. “We have an unequal representation of people in our court system. And that does I think provide an injustice that we have to pay more attention to.”

More specifics were reported by The (Madison) Capital Times: “Making the system fair also may demand publicly paid legal representation — already provided for criminal charges — be extended to civil matters such as those adjudicated in family court, and for criminal appellate issues, Sotomayor said.”

ELECTION DAY AND SUPREME COURT: “This November, we all need to be Supreme Court voters,” wrote Michele L. Jawando, vice president for Legal Progress Action at the Center for American Progress Action Fund, in The (Idaho Falls) Post Register. While Americans casting their votes on Election Day will confront many issues, “What happens with those issues often depends on who is sitting on the Supreme Court,” she said.

Given the current composition of the court and a vacancy created by the death of Justice Antonin Scalia, “The next president could dramatically change the nature of the U.S. Supreme Court for generations to come,” Jawando wrote.

‘STRAIGHT-TICKET VOTING’: The Supreme Court “refused to revive a Michigan law that barred straight-ticket voting,” a system “in which voters may choose a party’s entire slate with a single notation,” The New York Times reported.

KANSAS COURT ELECTION: An editorial in The New York Times turned a national spotlight on “extremist meddling” by Kansas Republicans seeking “to purge a majority of judges from the State Supreme Court” this fall. “Right-wing politicians who adhere to the fantasy that government is the problem, not the solution, are eager to politicize the courts,” the editorial said. The hot-button issues in the judicial retention (up-or-down) election were recapped in an Associated Press article.

High Court Appears Closely Divided Over Obama Immigration Order

US Supreme CourtHearing arguments in a case from Texas, the Supreme Court’s eight justices seemed perhaps evenly divided on Monday as they sharply questioned President Obama’s executive action to protect as many as five million immigrants in the United States from deportation.

The Washington Post said that “the court’s conservatives and liberals seemed split, and a 4-to-4 tie would leave in place a lower court’s decision that the president exceeded his powers in issuing the directive.”

The case is United States v. Texas, a challenge brought by 26 states. The New York Times reported that it “may produce a significant ruling on presidential power and immigration policy in the midst of a presidential campaign in which both issues have been prominent.” (more…)