DEMOCRATIC OPPOSITION TO GORSUCH: Concerns are mounting that Neil Gorsuch, President Trump’s Supreme Court nominee, will not be willing or able to function independently from the president. “Given the administration’s disdain for the judiciary, any nominee to the Supreme Court, particularly by this president, must be able to demonstrate independence from this president,” wrote Senate Minority Leader Chuck Schumer in an opinion piece at The New York Times. On Sunday, Trump’s administration made it clear that they expect the judicial branch to be loyal to Trump when Stephen Miller, a senior policy adviser to Trump, expressed his belief that “a district judge in Seattle cannot force the President of the United States to change the laws and our Constitution because of their own personal views” and that “the President’s power…will not be questioned,” reported People for the American Way.
More than 200 groups are actively working to inform the public about the danger of Gorsuch, reported Bloomberg Politics. Some conservatives are comparing the progressive opposition to the Gorsuch nomination to the controversy over Robert Bork in 1987, using the comparison to argue that Democrats are being too harsh. But an article in The Daily Beast argues that “Rather than remembering the Bork appointment as something to avoid, this is a time to look back at Senator Kennedy’s campaign as a model for how to handle Gorsuch in the coming weeks.”
TRUMP ADMINISTRATION WITHDRAWS OBJECTION TO INJUNCTION AGAINST TRANSGENDER STUDENTS: The Trump administration submitted a legal brief “withdrawing the government’s objections to an injunction that had blocked guidance requiring that transgender students be allowed to use restrooms that match their gender identity,” reported The Chicago Tribune.
The Obama administration had appealed the injunction. But the Justice Department, led by Attorney General Jeff Sessions, decided to no longer challenge it in court – leaving in place a ruling that effectively thwarts the rights of transgender students.
The decision “signaled a significant change in the government’s approach to transgender issues under President Trump” according to The New York Times.
SENATE CONFIRMS JEFF SESSIONS AS ATTORNEY GENERAL: After long and tense partisan debate, the Senate voted to confirm Jeff Sessions to be Attorney General. Senator Joe Manchin was the only Democrat to vote for him, NPR reported.
Nan Aron, president of our sister organization Alliance for Justice, criticized Republicans for their conduct in the hearing and confirmation process and said it “represents a low point in the history of the Senate” in a statement. Aron argued that this “raises the stakes for the upcoming hearings for Supreme Court nominee Neil Gorsuch. It is essential that the process for Gorsuch be thorough, deliberative, and respectful of all sides, and that Gorsuch fully answer questions about his ability to be an independent check on the executive branch as the Constitution prescribes.”
TRUMP ACCUSES BLUMENTHAL OF LYING ABOUT GORSUCH CRITICISMS: Senator Richard Blumenthal said that Judge Neil Gorsuch told him he found Trump’s attacks on Judge Robart, the federal judge who blocked his travel ban, “disheartening” and “demoralizing.” Gorsuch’s spokesman Ron Bonjean confirmed that Gorsuch used those words in his meeting with Blumenthal. The quotes were also confirmed by other senators, reported CNN.
Despite the criticisms being confirmed, Trump accused Blumenthal of lying about what Gorsuch said in a tweet: “Sen.Richard Blumenthal, who never fought in Vietnam when he said for years he had (major lie), now misrepresents what Judge Gorsuch told him?”
In response to Trump’s disbelief, Blumenthal stated “there’s no question that Judge Gorsuch said to me that he found these attacks on the judiciary to be disheartening and demoralizing,” quoted The Washington Examiner. “He made that statement to me, his spokesperson confirmed it, in fact he has made that same statement to many of my colleagues.”
Blumenthal went onto urge Gorsuch to “make that statement publicly,” yet Gorsuch declined. “Behind closed doors, Judge Gorsuch expressed disappointment with President Trump’s attacks on the judiciary, but a Supreme Court Justice must prove that he has the courage and independence to stand up to a President in public,” Blumenthal said, according to The Hill.
ELIZABETH WARREN SILENCED BY SENATE GOP: Senate Majority Leader Mitch McConnell charged Senator Elizabeth Warren with violating Senate rules against impugning another senator during a Tuesday night floor speech opposing Attorney General nominee Jeff Sessions, reported CNN.
Warren was reading from a letter written in 1986 by Coretta Scott King, the widow of Martin Luther King, Jr., which opposed Sessions’ nomination for a federal judgeship. The letter stated that “Mr. Sessions has used the awesome power of his office to chill the free exercise of the vote by black citizens in the district he now seeks to serve as a federal judge.”
McConnell claimed that Warren’s reading of the letter violated Rule XIX, which prohibits Senators from ascribing “to another senator or to other senators any conduct or motive unworthy or unbecoming a senator.” Senate Republicans upheld the rebuke by a vote of 49 to 43, which removes Warren’s ability to speak during the remaining hours of debate on Sessions’ nomination, according to NBC.
Senator Cory Booker stated that he was “proud tonight of Sen. Warren. She stood and told her truth. To see this body act as it did tonight is disappointing to me,” reported The Hill. Booker tweeted that McConnell didn’t just silence Warren – “he silenced civil rights icon Coretta Scott King.”
TRUMP TO MEET WITH MODERATE DEMOCRATS TO GAIN GORSUCH VOTE: President Trump invited Senate Democrats from multiple red states to lunch “in hopes of wooing their support for his Supreme Court nominee,” reported CNN. The four senators invited are all up for reelection in 2018, and among the 10 senators facing pressure from conservative and liberal groups – including our sister organization Alliance for Justice, reported Time.
“It’s full steam ahead,” Nan Aron, President of Alliance for Justice, told Time. “We plan to win this fight.”
Alliance for Justice was also listed among SCOTUSblog’s key groups in the Supreme Court confirmation process.
IMMIGRATION BAN LIKELY TO GO TO SCOTUS: “A Justice Department lawyer on Tuesday said courts should not second-guess President Trump’s targeted travel ban, drawing skepticism from a three-judge federal appeals panel weighing the limits of executive authority in cases of national security,” reported The New York Times.
The court is expected to deliver its decision on President Trump’s immigration ban within days. However, “no matter how the United States Court of Appeals for the Ninth Circuit rules — in a decision that is expected within days — an appeal to the United States Supreme Court is likely,” the Times continued.
NAN ARON: TRUMP MUST PICK AN ALTERNATIVE NOMINEE: Nan Aron, president of our sister organization Alliance for Justice, predicted that “the American people and Senate will reject the nomination of Judge Neil Gorsuch” in an opinion piece at The Nation. “We are confident Americans will conclude that to avert a disaster, Donald Trump will have to find an alternative nominee who is unflinchingly independent; who recognizes the progress made in our nation over the past 100 years; and who when seated on the Court will take the American people not forward, not backward,” stated Aron.
In response to the criticism leveled at Gorsuch, Trump has repeated his calls for the Senate to “go nuclear” to get Gorsuch on the Supreme Court. “If we end up with that gridlock I would say if you can, Mitch, go nuclear,” Trump said, according to The New York Times. “That would be an absolute shame if a man of this quality was caught up in the web.” McConnell has thus far denounced Trump’s urgings to use the nuclear option, stating that it will be a decision made by the Senate – not the president.
INCREASING PENALTIES FOR PROTESTERS: Lawmakers in Republican-controlled statehouses are introducing legislation that will restrict the rights of protesters. In North Dakota, “a lawmaker has introduced a bill that would allow motorists to run over and kill any protester obstructing a highway as long as the driver did not do it intentionally. Bills that would increase penalties on unauthorized protests have also been introduced in Michigan and Washington. Last week in Minnesota, a House committee approved legislation that would increase penalties and charge demonstrators the cost of policing protests,” reported NPR.
TRUMP NARROWS SCOTUS LIST TO FOUR?: Above the Law reported that Judges Neil Gorsuch, Thomas Hardiman, William Pryor, and Raymond Kethledge top Trump’s list for the Supreme Court. The National Law Journal outlined a few key facts on Gorsuch, including his opposition to class actions.
Judge Gorsuch has “challenged the notion that courts should defer to administrative agencies when they interpret the law,” according to CNN. Gorsuch’s position on the issue “is more extreme than Justice Scalia…it would be hard to overstate the damage it would cause this nation and the American people,” Dan Goldberg, legal director of our sister organization Alliance for Justice told CNN.
“We are prepared to oppose every name on Trump’s list,” Nan Aron, president of Alliance for Justice, said in a New York Times article. “The progressive, civil rights community will be united in opposition to either of those prospects or anyone else on the list.”
President Trump announced via Twitter that he will name his nominee next Thursday, February 2nd.
LAWSUIT SEEKS MORE INFORMATION ON SESSIONS: A suit filed in the U.S. District Court for the District of Columbia asserts that eight federal agencies have failed to comply with a Freedom of Information Act request for documents related to Sen. Jeff Sessions’ record. According to The Hill, journalist Jason Leopold and Ryan Shapiro, who filed the suit, feel the record will “shed light on Sessions’ history as a state and federal attorney general and as a lawmaker.”
At the Montgomery Advertiser, Constitutional Accountability Center President Elizabeth Wydra warned that Sessions “misrepresents ‘equal and impartial justice,’” stating that “his extensive record – at times defying fundamental protections written in the text and underscored by the history of the U.S. Constitution – offers little evidence that he can be ‘the People’s lawyer’ and fairly execute the mission of the Department his is nominated to lead.”
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.
A ‘GRINDING’ CONFIRMATION PROCESS AHEAD: “Senate Democrats are preparing to put Donald Trump’s Cabinet picks through a grinding confirmation process, weighing delay tactics that could eat up weeks of the Senate calendar and hamper his first 100 days in office,” Politico reported.
Attorney General pick Sen. Jeff Sessions “looks like he’s in for an especially rough ride. [Sen. Sherrod] Brown said Sessions ‘was dissed by the Senate once for his racism,’ a reference to his rejection by the chamber 30 years ago to become a federal judge,” the article said.
Democrats’ plans to affect the confirmation process are partly a response to Senate Republicans’ obstruction of President Obama’s Supreme Court nomination for Judge Merrick Garland. “They’ve been rewarded for stealing a Supreme Court justice. We’re going to help them confirm their nominees, many of whom are disqualified?” said Brown, D-Ohio. “It’s not obstruction, it’s not partisan, it’s just a duty to find out what they’d do in these jobs.”
The Pew Research Center, meanwhile, issued an analysis titled “What kinds of backgrounds do US attorneys general have?” and Newsweek had an opinion by Jacob Sullum, “Attorney General Pick Sessions is a Drug War Dinosaur.” The Hill reported that Sessions’ nomination is likely to be among the first considered, and, “It’s also possible that the Senate Judiciary Committee could seek to confirm a Trump nominee to the Supreme Court shortly after Sessions is confirmed.”
A Pittsburgh Post-Gazette editorial had scathing criticism for the blockade against Garland’s nomination. “Indeed, the Senate has established a terrible precedent that makes it less likely that any president will be able to get a Senate controlled by the other party to confirm his Supreme Court nominees, however wise and well-qualified,” the editorial said. “This was a study in Washington politics at its worst — political and constitutional malpractice — and it will have a lasting consequence.”
ON VOTING RULES, COURTS AND SESSIONS: In an article about voting rules in a Trump era, The New York Times said, “Several potentially decisive federal court rulings on voting rules and redistricting, most favoring voting-rights advocates, now appear bound for a Supreme Court whose ideological balance is in Mr. Trump’s hands. Enforcement of the Voting Rights Act of 1965, a linchpin of some of those cases, will fall to a Justice Department whose likely attorney general, Senator Jeff Sessions, Republican of Alabama, is viewed with deep suspicion by civil rights advocates.”
A 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 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.