AFJ is ‘Mad,’ ‘Fired Up, And … Not Moving to Canada,’ Aron Vows

AFJ GEARS UP TO SCRUTINIZE TRUMP JUDGE PICKS: “Americans are waking up to the threats of a bone-rattling new reality coming their way, very soon. We invite them to join us as we get ready to oppose with every fiber of our being any attempt to pack our federal courts with men and women who refuse to believe that the law and Constitution protect all of us, regardless of wealth, race, gender, gender identity, religion, age or politics,” Nan Aron, president of our sister organization Alliance for Justice, wrote in Huffington Post.

“Here’s a notice: We are mad, we are fired up, and we’re not moving to Canada. Instead we’re going to pull out every stop we can to preserve courts that people trust and to avoid revisiting an era of darkness in America.” Aron’s commentary addressed the kinds of judges expected under a President Donald Trump.

SEN. FEINSTEIN TAKES A STAND: Sen. Dianne Feinstein of California will become ranking Democrat on the Senate Judiciary Committee, leading Democrats as they “take on” Trump’s Supreme Court nominees, The Washington Post reported. “When President-elect Trump is willing to support responsible policies and nominees, I’ll hear him out, but this committee has a vital role to protect the Constitution and scrutinize policies, senior officials and judges very carefully, and that’s what we intend to do,” Feinstein said. “We simply won’t stand aside and watch the tremendous successes achieved over the past eight years be swept away or allow our nation’s most vulnerable populations to be targeted.”

Feinstein “has developed deep relationships with senators, both Democrats and Republicans,” AFJ’s Aron told McClatchy. Aron added, “If anyone can reach across the aisle to some of the more conservative Republicans, I think it’s Dianne Feinstein.”

According to Politico, Trump “is ‘committed’ to only nominating a Supreme Court justice from his previously disclosed list of potential additions to the high court, his campaign manager said Wednesday.” Regarding Sen. Charles Schumer of New York, “Democrats’ new Senate leader open to filibustering Trump’s Supreme Court picks,” The Washington Times said, while New York Magazine noted about Sens. Orrin Hatch and Lindsey Graham, “Two Senior Republican Senators Say the Filibuster Must Stay.”

The Associated Press reported, “9 Trump Supreme Court prospects at conservative legal parley” convened by the Federalist Society. The article quoted  Aron as saying the group “promotes a way of looking at the law which upholds the rights of the powerful and the wealthy.” Aron said it is “regrettable that so many nominees on Trump’s list are going to attend Federalist Society events.”

JUDGE MERRICK GARLAND: Advocacy of a possible recess appointment of Judge Garland, or the Senate’s finally taking up his nomination to the high court, came in various opinions at The New Republic,  USA Today,  and Huffington Post.

Commentary: First Trump Court Pick a ‘Dress Rehearsal’ for the Next One

CRYSTAL BALL GAZING: Who will be President Trump’s first pick for the Supreme Court, and what’s down the road? More analysts are offering their views.

Nina Totenberg of NPR said the Trump-listed names of potential nominees “range from very conservative to very, very conservative.” She added, “And I would expect that the older ones and the younger ones will get knocked off. And the person will have a track record that attracted Trump and, therefore, will unattract a lot of Democrats and their constituencies.”

About Trump’s nomination for a justice to succeed the late Antonin Scalia, Totenberg said, “This, in some ways, is the dress rehearsal for the next nomination, which, if it happens, will make all the difference in the world.”

“Don’t buy Trump’s flip-flop on marriage equality. LGBT rights are anything but safe in his White House,” a Los Angeles Times op-ed by Nico Lang warned. Among other points, Lang noted that one of those on Trump’s potential nominee list, Texas Supreme Court Justice Don Willett, “once compared same-sex unions to marrying bacon.”

A blog post in The Economist said, “Two or more Trump appointments to the Supreme Court could jeopardise abortion rights,” and it noted, “It is worth reiterating that the primary role of a Supreme Court justice is to faithfully interpret the laws, not to embody an ideology or to satisfy a president’s policy wish-list. Openly treating the court’s potential occupants as mere bundles of political positions is corrosive to the rule of law and the separation of powers, two principles of American democracy for which Mr Trump has shown little regard.”

An Associated Press article was headlined, “[Supreme Court Justice Sonia] Sotomayor says nation ‘can’t afford to despair’ over Trump,” and Bloomberg BNA asked, “Trump-Era Supreme Court a Threat to Public Sector Unions?”

JUDICIAL NOMINATIONS: Could the lame-duck Senate still act on judicial nominations? In Idaho, The Spokesman-Review had an article saying, “[Sens.] Crapo, Risch standing by Judge Nye nomination, hoping for Senate vote soon.” The Oklahoman reported that Republican Sens. Jim Inhofe and James Lankford have supported two nominees for judgeships in Oklahoma City, “[a]nd they were careful this week not to declare their nominations dead” in the wake of Trump’s election.

STATE JUDICIAL ELECTIONS: The Marshall Project reported about last week’s record-breaking state Supreme Court elections, “Special interest organizations — most of which don’t have to disclose their donors under campaign finance laws — put a record $19.4 million into TV ads for judicial candidates, over half of all TV spending in these races. The Republican State Leadership Committee spent the most of any group, putting $4 million into eight different races as part of its stated effort to elect more conservative justices.” The source for the news article was an analysis from The Brennan Center for Justice on Tuesday.

AFJ Warns of Potential ‘Huge Ideological Shift’ on Appeals Courts

NEWS MEDIA QUOTE NAN ARON ABOUT COURTS’ FUTURE: Although President-elect Trump’s choosing a Supreme Court justice is getting the greatest attention, his appointments to the U.S. appeals courts will make a greater impact in the nearer term, USA Today reported. It quoted Nan Aron, president of our sister organization Alliance for Justice, to portray the potential impact.

“He will quickly have an opportunity to tip the balance back to ultra-conservative control over a majority of the circuits,” Aron said.  “There will be a huge ideological shift in these influential courts around the country.”

Meanwhile Aron told The Hill that Trump also is bent on naming right-wing Supreme Court justices who are hostile to core American values.

“Unquestionably, the idea that Donald Trump can appoint Supreme Court justices ought to instill the fear of God in every American in the country, both those who voted for him and those who didn’t, because he will appoint individuals, just as his Republican predecessors did, who are hostile to the rights and liberties we Americans have come to accept as basic democratic values,” she said. She voiced a fear that his high court appointees could reverse “years of progress” on civil rights, reproductive rights and marriage equality.

“One justice will be able to do that, which is the reason they failed to give [Judge] Merrick Garland his due. It was to keep the seat open, knowing how critically important that seat is for a Republican president to fill,” she said.

While Senate Republicans have blockaded President Obama’s Supreme Court nomination of Garland, a Los Angeles Times editorial urged action in the lame-duck session. “When Obama nominated Garland, he warned the Senate that if it did not offer the judge a fair hearing ‘it will not only be an abdication of the Senate’s constitutional duty, it will indicate a process for nominating and confirming judges that is beyond repair.’ It’s not too late to take those wise words to heart,” the editorial concluded.

In related coverage and commentary, “Eight of Trump’s Potential High Court Picks to Appear at Federalist Society Convention,” National Law Journal reported (accessible by a Google search). Also, CNN.com, “The Republican blueprint for Supreme Court nominations”; Dahlia Lithwick at Slate, “Republicans Stole the Supreme Court: Democrats, don’t let them get away with it”; New York Times, “Trump’s Supreme Court List: Ivy League? Out. The Heartland? In”; Adam Feldman at Empirical SCOTUS blog, “An Alternate Take on Trump’s Potential Supreme Court Nominees”; Noah Feldman at Bloomberg View, “Trump’s Threat to Abortion Rights Isn’t Immediate”; and New York Magazine, “Could a Trump Administration Overturn Roe v. Wade?”

Lame-Duck Session: Action Unlikely on Obama’s Judicial Nominees

BLEAK OUTLOOK FOR OBAMA’S REMAINING JUDICIAL PICKS: One of the most immediate impacts of the Election Day outcomes is a bleak outlook for 59 judicial nominees put forward by President Obama, according to a USA Today article. It cites a report by our sister organization, Alliance for Justice, spotlighting GOP obstructionism.

Although there is time for the Senate to act on judicial nominations in its lame-duck session, the article suggests that no pending nominees are likely to be confirmed in the wake of Republican Donald Trump’s election as president. And that’s despite the fact that during the administration of President George W. Bush, Democrats controlling the Senate ultimately confirmed all of the nominees who had gotten out of the Senate Judiciary Committee. Regarding GOP obstructionism, “A report last year by the liberal advocacy group Alliance for Justice charged that the pace of judicial nominees confirmed under the GOP-controlled Senate is the slowest in 60 years,” USA today said.

Meanwhile, the dramatic post-election change that Elizabeth Wydra, president of the Constitutional Accountability Center, labeled a “new reality” was taking hold as news media, advocates and academics assessed its impact. The Associated Press reported that even before Trump chooses a nominee for the high court, his administration could revise the Supreme Court’s agenda. “Legal challenges involving immigration, climate change, cost-free contraceptive care and transgender rights all could be affected, without any help from Congress,” depending on what the next administration does, because these challenges involve Obama administration policies, the AP said.

As Trump is expected to make choosing a Supreme Court nominee an early priority, it’s getting lots of attention. Related coverage and commentary included Jeffrey Rosen in Politico Magazine, “How President Trump Could Reshape the Supreme Court — and the Country”; Vox, “Trump on 60 Minutes: Once Roe v. Wade is overturned, women will ‘have to go to another state’”; and US News & World Report, Ilya Shapiro at Newsweek, and The Hill.

Discussing the confirmation process and barriers that Senate Democrats may raise were The New York Times, “Hard Choice for Mitch McConnell: End the Filibuster or Preserve Tradition”; Forbes, “Will Democrats Be Able to Block Trump’s Supreme Court Nominations?”; and a Los Angeles Times column, “Do Democrats still think ‘we need nine’ on the Supreme Court?”

STATE COURT ELECTION AFTERMATH: In North Carolina, there was an unusual development after a state election that promised a one-justice majority of Democrats on the state Supreme Court. Some Republican legislators were talking about possibly adding two justices to the court in a move to neutralize the Democratic majority, according to The Winston-Salem Journal. Opined a (Raleigh) News & Observer editorial, “Packing the court to offset the effect of an election would be an abuse of the legislative process.

AFJ to Fight ‘Ultraconservative Takeover’ of Federal Courts

PROGRESSIVE GROUPS ASSESS TRUMP IMPACT: On the day after Republican Donald Trump captured the White House and Republicans retained the Senate, progressive groups assessed how the federal courts may be affected.

“At this critical moment in history for our federal courts, it is essential that we fight with all the resources at our disposal against a takeover of our courts by the anti-woman, anti-gay, anti-worker, anti-minority forces of the far right,” said Nan Aron, president of our sister group Alliance for Justice, according to The Washington Examiner. “Rarely has there been a time when the fairness and impartiality of our courts have been more at stake. We and our allies at Alliance for Justice will oppose, with every ounce of our strength, an ultraconservative takeover of our nation’s courts.”

The New York Times quoted Elizabeth Wydra, president of the Constitutional Accountability Center, as saying, “Given that many of the conservatives on his list are more in the traditional conservative mold than Trump himself, they might not simply write him a blank check when it comes to actions and policies that threaten constitutional structure.” She added, “As is the case during every administration of either party, the court will inevitably be asked to step in and serve the judicial branch’s role as a check on the political branches.”

According to The Atlantic, when it comes to Supreme Court nominees, “With advance warning about Trump’s choices, left-leaning interest groups could build extensive research on the nominees’ judicial records and personal histories. They might not be able to block a potential justice outright, but they could make the process a headache for the Trump administration and Republican senators alike.”

GRADUAL, RATHER THAN QUICK, CHANGE AHEAD?: Several analysts suggested shifts in the direction of the Supreme Court may not come quickly. Lyle Denniston wrote at his blog that “the transition to a truly different Court may not come until after the congressional elections in 2018, or even later, although that depends on the health of the more senior Justices now serving.” David Savage said in The Los Angeles Times, “Now, the court’s ideological balance should remain largely as it has been for the past decade, with Justice Anthony M. Kennedy holding the deciding vote in the court’s biggest cases.” Remarked Tony Mauro at National Law Journal (registration required), “The court prides itself on being the one branch of government that does not respond to every change blowing in the wind.” In other commentary, a Los Angeles Times essay by law professor Erwin Chemerinsky was headlined, “So long Roe vs. Wade? President Trump’s most lasting legacy could be radical change at the Supreme Court.” Linda Greenhouse wrote in The New York Times, “The Choice Confronting the Supreme Court’s Chief Justice.”

JUDICIAL NOMINATIONS: Lest dozens of federal judicial vacancies, and pending nominations to the courts, be forgotten, National Law Journal reported (registration required), “Trump Win Is Bad News for Obama Court Picks.” Other coverage included NPR, “Republicans’ Senate Tactics Leave Trump Wide Sway Over Nation’s Courts,” and Washington Examiner, “McConnell hints against nuke option to kill Dem filibusters.”

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

HOW 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.

AFJ Sees ‘Tipping Point’ at High Court on Immigrants’ Rights

ARON AND HINCAPIÉ ON COURT AND IMMIGRANTS’ RIGHTS: “Immigrants’ Rights at a Supreme Court ‘Tipping Point,’” declared the headline for a Huffington Post commentary by Nan Aron, president of Alliance for Justice, our sister organization, and Marielena Hincapié, executive director of the National Immigration Law Center.

“Because the Supreme Court is shorthanded now and evenly divided philosophically on key issues including the legalities of issues affecting the basic rights of immigrants, not only the court – but the lives of millions of aspiring Americans – hang in the balance,” they wrote. After recapping related rulings of the court and cases before it, they concluded, “Presidents occupy the White House for four-year terms. Supreme Court justices, on the other hand, serve for life. Will our next Court respect the constitutional values of liberty, equality, and justice for all? Or will it be a court that can’t deliver justice at all? The future of the Court matters supremely, and it offers a monumental reason for Americans to make their voices heard.”

THE COURT’S FUTURE AFTER TODAY: In the closing days and hours before Election Day, a few more Senate Republicans said they would not back an indefinite blockade of any Supreme Court nominations by Hillary Clinton if she is elected, and some analysts suggested threats of prolonged GOP obstruction might not be followed through. AFJ’s Aron, meanwhile, was quoted by NBCNews.com as saying, “It’s a pivotal moment, given the current makeup of the Supreme Court.” She added,  “I think we can safely assume that no matter who she does nominate, and what the makeup of the Senate is, it will be an epic battle.”

Coverage and commentary included Politico, “Sen. Perdue: ‘Dereliction of duty’ for GOP to indefinitely block Clinton SCOTUS pick”; Associated Press, “GOP Sen. Perdue Says Senate Must Act On High Court Vacancy”; Huffington Post, “GOP Senator Predicts Merrick Garland Will Be Confirmed This Year If Hillary Clinton Wins”; BuzzFeed News, “After Election Day, The Politics Of The Supreme Court Will Change”; Slate, “Maybe the GOP Won’t Obstruct Any Hillary SCOTUS Nominee After All”;  Roll Call, “Progressives Tout Senate Rules Changes in Election Push”; Alaska Dispatch News, ” Alaska’s U.S. Senate candidates don’t agree on much”; and The Hill op-ed by Chris Bryant, “History proves that eight is enough for the Supreme Court.”

MANDATORY ARBITRATION: An intriguing CBS Money Watch article was headlined, “One man’s $100,000 journey through arbitration.” You can learn more about this issue by reading a Justice Watch blog post of Alliance for Justice titled, “Why the Wells Fargo Scandal Shows the Need to End Forced Arbitration.”

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

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.”

Aron: ‘Biggest Fight of … Clinton’s Life’ Could Emerge Over High Court Pick

Judge Garland

AFJ IN THE NEWS: On the eve of Americans choosing their next president, a number of news media outlets and pundits focused on a turning point for the shorthanded Supreme Court. The Hill examined the choices ahead for Democrat Hillary Clinton if she wins the White House, and it quoted Nan Aron, president of our sister organization Alliance for Justice, about the major confirmation fight that would await Clinton if she’s elected.

“Getting a Supreme Court justice confirmed will be the biggest fight of Hillary Clinton’s life and may be the biggest fight of the first several years of her administration. Whomever she chooses has to be someone she wholeheartedly supports, with every fiber in her body,” Aron told The Hill. “She’ll have to put her all into getting this candidate confirmed.”

“If it’s Merrick Garland, so be it, but it’s got to be someone she cares about,” Aron added, mentioning President Obama’s nominee, whom Senate Republicans have stonewalled. “Someone she can really wrap her arms around.” Aron also said she would back Garland if Clinton renominated him.

In The New York Daily News, election law expert Rick Hasen wrote a commentary headlined, “A supremely important choice: The court hangs in the balance for Democrats, too.” A Reuters report said, “Final reckoning approaches for Obama’s high court nominee.”

More Senate Republicans, meanwhile, signaled they would not support a blanket blockade of any Supreme Court nominee chosen by a president Clinton (see Gavel Grab for background). “You don’t shirk your responsibility when you’re an elected official,” AJC.com quoted Sen. Johnny Isakson of Georgia as saying. “You sanctify your responsibility, and that’s what I’ll do. I’ll consider who she nominates at the time she does and make a decision that’s right for the people of Georgia.” The Tulsa World had an article saying, “D.C. Report: Sen. Jim Inhofe says he would support right Supreme Court nominee from Hillary Clinton.”

‘COURTESY’ VOTES AT SUPREME COURT: “The U.S. Supreme Court seems to be trying to hang together as the election campaign drives the rest of the country into feuding camps,” Bloomberg reported about “courtesy” votes at the court. There was also coverage from Huffington Post and Constitution Daily. At the latter, Lyle Denniston explained, “For the second time in recent weeks, a Justice cast a vote that otherwise might not have been justified, but did so only as ‘a courtesy’ to colleagues.”

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.