Election’s ‘Enormous Consequences’ for Supreme Court Are Predicted

blog_2016_01_29-b_1HOW WILL ELECTION AFFECT THE SUPREME COURT?: The surprise election of Republican Donald Trump as the next president, and of a Senate controlled by Republicans, will make a major imprint on the Supreme Court. “Republicans shocked Democrats by keeping control of the Senate, setting the stage for President-elect Donald Trump to enact a broad conservative agenda and ensure a Republican Supreme Court for a generation,” Bloomberg reported.  The Washington Post said, “The political earthquake that hit Tuesday night has enormous consequences for the Supreme Court, swallowing up Judge Merrick Garland’s ill-fated nomination and dismantling Democratic hopes for a liberal majority on the high court for the first time in nearly a half-century.”

And if Senate Democrats aim to blockade Trump’s choices for the court, including one to succeed the late Justice Antonin Scalia, Senate Republicans could change the rules to prevent that, according to Bloomberg. Senate Republicans waged unprecedented obstruction this year of Garland’s nomination. He was chosen by President Obama.

A New York Daily News article examined the 21 potential picks for the court that then-candidate Trump identified earlier and quoted Nan Aron, president of the Alliance for Justice Action Campaign, deploring a list of Trump favorites as “dangerous.” To read AFJAC’s reports on the potential Trump nominees, click here.

The court currently is shorthanded with eight members, sometimes evenly divided on key legal issues. In the wake of the election, “At stake is the ideological balance of the Supreme Court for decades,” Roll Call reported. “All eyes will now be on the court’s oldest members, [Justices Anthony] Kennedy and [Ruth Bader] Ginsburg,” according to The Washington Post.

Observed The Economist, “There are two ways to think about the future of the Supreme Court in the wake of last night’s stunning upset in the presidential race: taking Donald Trump at his word when he says he will load the bench with conservatives, or, in view of his penchant for changing his mind, taking these promises with a shaker full of salt. Neither offers much solace to liberals.”

STATE JUDICIAL ELECTIONS: In a costly (see Gavel Grab) set of state supreme court elections that were decided on Tuesday, the results were a “mixed bag” politically, according to Governing. One of the most notable outcomes was in Kansas, where conservatives mounted an ouster drive against four Supreme Court justices in a retention (up-or-down) election, and voters retained them all on the bench, according to KCUR.

In Washington Post, AFJAC Assails ‘Cynical, … Partisan Power Grab’

964723_1_0215-supreme-court-scalia_standardAFJAC SAYS GOP MUST ALLOW VOTE ON JUSTICES: “A cynical, post-election, partisan power grab must not be allowed to engender a further hobbled Supreme Court,” Nan Aron, Alliance for Justice Action Campaign president, wrote in a letter to the editor published by The Washington Post.

“GOP lawmakers are threatening to extend the scorched-earth campaign tactics of 2016 after Inauguration Day,” Aron wrote, referring to recent remarks by Sens. Ted Cruz and John McCain. “Tellingly, their remarks expose the lie behind GOP senators’ stonewalling of the nomination of Judge Merrick Garland, despite Republican leaders’ talk of filling the vacancy after the presidential election. Once the president nominates, the Senate must take seriously its constitutional obligation to give that nominee a fair hearing and a timely vote.” Aron was commenting on a Washington Post editorial (see Gavel Grab).

Meanwhile law professor Charles G. Geyh of the University of Indiana told Talking Points Memo about what TPM called conservative strategizing to block any Supreme Court nominee of Hillary Clinton’s, “I don’t think there is precedent for it. It really does reveal just how politically charged and polarized our judicial politics have become.” He added, “We are at risk of losing legitimacy as a nation in terms of being able to govern effectively.”

With the Supreme Court shorthanded at eight justices, commentary came from all over the philosophical map about what may, or should, happen next. It included The Houston Press, citing judicial confirmation data from our sister organization, Alliance for Justice, “Ted Cruz Knows Better Than to Suggest Shrinking the Supreme Court”; Huffington Post, “Tim Kaine: Democrats Will Nuke Filibuster For Supreme Court Nominees If GOP Won’t Cooperate”; Thomas Berry at The Hill, “Supreme Court compromise: the case for a temporary justice”; Adam Feldman at EmpiricalSCOTUS.com, “We Need Nine (Or Do We): A Slice of Supreme Court History”; Newsweek, “Why Clinton Should Appoint Garland to the Court”; and NPR, “The Case for Republicans to Consider Merrick Garland’s Nomination.”

SUPREME COURT TAKES UP TRANSGENDER ACCESS CASE: The Supreme Court has “entered the national debate over transgender rights, announcing that it would decide whether a transgender boy may use the boys’ bathroom in a Virginia high school,” The New York Times reported. In other coverage about the high court, a separate New York Times piece was headlined, “Justice Thomas, Reticent on the Bench, Is Effusive About His Time There.” The Chicago Tribune reported, “Judge Posner says quality of Supreme Court is ‘awful.'”

Aron: Let the Next President Halt the Standoff Over Judicial Nominations

Aron
Aron

Nan Aron, Alliance for Justice Action Campaign president, criticized in a column for Huffington Post today Republican threats to escalate obstruction of judicial nominees to “a destructive new level” and urged setting aside “hyperpartisan warfare” to let the next president govern.

“The past few days have brought a striking moment of clarity to Republicans’ cynical, campaign-season obfuscation around their real strategy for the Supreme Court,” Aron wrote. “So permit us to borrow a phrase from that long-ago primary season: let’s dispel with this fiction that Republicans meant what they said about letting the voters speak when it comes to shaping the Supreme Court. They didn’t.”

“In fact, Sen. Ted Cruz has now confirmed what Sen. John McCain let slip last week: the Republican blueprint for a Hillary Clinton presidency is to obstruct and blockade the confirmations of Supreme Court nominees.” To learn more about statements by Cruz and McCain, see Gavel Grab.

Not only does President Obama’s Supreme Court nomination of Chief Judge Merrick Garland hang in limbo, but so do scores of other nominations for the lower federal courts, she wrote. Aron concluded, “Right after the election, it’s imperative that we allow the next president to govern fairly and avert a system broken by hyperpartisan warfare. For the Senate to support democracy and halt the standoff over judges would be a good starting point.”

Controversy Flares Over Cruz’s Eight-is-Enough Hint; AFJAC’s Aron Quoted

Justice Antonin Scalia's seat after his death
Justice Antonin Scalia’s seat after his death

CONTROVERSY AFTER CRUZ REMARKS: Sen. Ted Cruz’s suggestion that the Supreme Court could continue to function with eight justices confirmed a “Republican blueprint for a Hillary Clinton presidency” of obstructing and blockading federal judges, The Washington Times quoted Nan Aron, Alliance for Justice Action Campaign president, as saying. “This is the game plan now: kneecap the federal judiciary, shred the Constitution,” Aron said. “All those things Republicans said about letting the American people have a say in the next Supreme Court nomination? They’ve been exposed as the lies they were.”

Cruz’s remarks, following on the heels of a veiled threat floated and later walked back by Sen. John McCain, R-Ariz. (see Gavel Grab), ignited controversy. A Washington Post editorial said about Cruz, “Crudely, his message is: We lost the presidency, so let’s take our marbles and go home. Such thinking seems to come easily to the senator who led the 2013 government shutdown. But it runs against the oath Mr. Cruz took as a senator to ‘well and faithfully discharge the duties of the office.’”

The White House weighed in, according to The Associated Press: “Sen. Ted Cruz’s suggestion of an indefinite Supreme Court vacancy under a President Hillary Clinton raises questions about the credibility and integrity of Republicans who have said the next president should get to the choose who fills the vacancy, White House spokesman Josh Earnest said Thursday.” Politico discussed GOP divisions, noting that “Senate Republicans are choosing sides ahead of a brutal conflict over how to handle the lingering Supreme Court vacancy,” and that Republican Sen. Jeff Flake of Arizona had fired back at Cruz’s suggestion. “You won’t be surprised, I do not agree,” Flake said. “There’s a difference between what might be constitutional and what you could do politically and what you should do. And I think leaving a vacancy for up to four years is not why we’re here.”

Other related coverage and commentary included Dahlia Lithwick at Slate, “Eight Is Not Enough: Senate Republicans believe the Supreme Court will be just fine permanently operating one justice down; Here’s how John Roberts can talk sense into them”; Roll Call, “Republicans Split on Supreme Court Strategy in Lame Duck: Sen. Flake vows hearings, vote for Merrick Garland if Hillary Clinton wins”; and Eric Segall in The Los Angeles Times, “It’s the Supreme Court, not the Senate, that needs to do its job right now.”

GROPING ALLEGATION AGAINST SUPREME COURT’S THOMAS: The New York Times reported, “An Alaska lawyer has accused Justice Clarence Thomas of groping her at a dinner party in 1999, a claim that Justice Thomas called ‘preposterous.’” His confirmation fight 25 years ago included allegations by Anita Hill of sexual harassment. National Law Journal broke the latest news, and it reported today, “Anita Hill Calls for Investigation Into New Thomas Allegation” (article can be accessed by a Google search). AFJAC’s Aron was quoted in US News & World Report recently about allegations of sexual harassment against Donald Trump, which the article said were drawing some comparisons with the Hill episode in 1991 (see Gavel Grab).

MANDATORY ARBITRATION TARGETED: Arstechnica.com reported, “FCC imposes ISP privacy rules and takes aim at mandatory arbitration.” The article explained that the Federal Communications Commission “said it has begun working on rules that could limit the use of mandatory arbitration clauses in the contracts customers sign” with Internet service providers. You can learn more about this issue by reading the Justice Watch blog  of our sister organization, Alliance for Justice.

TV Newscast on ‘High Stakes for High Court’ Quotes AFJAC’s Aron

With Election Day less than two weeks off, news media are continuing to use analysis from the Alliance for Justice Action Campaign to educate voters about the candidates and the Supreme Court. In the latest instance, AFJAC was quoted in a Hearst TV report, “High Stakes for High Court.”

Regarding Hillary Clinton, AFJAC President Nan Aron said on camera for the Hearst report, “Her belief about the court stems from an idea that the Constitution protects all of us, not just people who are wealthy and powerful.” The report juxtaposed images of Donald Trump saying he would want to appoint justices in the mold of the late Justice Antonin Scalia, and of Clinton declaring, “I want a Supreme Court that will stick with Roe v. Wade and a woman’s right to choose.”

Given that one vacancy remains on the high court, Hearst’s Sally Kidd concluded her report by saying, “Remember, one vote made the difference for the Affordable Care Act, … campaign finance, voting rights, and same-sex marriage cases.”

AFJAC Quoted on Trump Court Picks

An analysis at Huffington Post of the sharply dissimilar Supreme Court justices who would be selected by presidential rivals Donald Trump and Hillary Clinton quotes the Alliance for Justice Action Campaign about Trump’s list of potential picks.

“Collectively, these individuals reflect a radical-right ideology that threatens fundamental rights and legal protections, and that favors the powerful and privileged over everyday Americans, especially those from historically marginalized communities,” AFJAC said. “The list has very little diversity, with only three women, no people of color, and no one who has worked as a public defender or civil rights attorney.”

The Huffington Post analysis was written by Marjorie Cohn, professor emerita at Thomas Jefferson School of Law and former president of the National Lawyers Guild; it was reprinted from Truthout.

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

Aron
Aron

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.”

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.