High Court a Topic for Next Debate; AFJAC on the Lower Courts

SUPREME 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.

Candidates Analyzed on Court Picks; ‘Justice Delayed’ by Gamesmanship

SUPREME COURT AND ELECTION YEAR: Now that selection of Supreme Court justices has emerged as an issue for the presidential candidates to debate face to face (see Gavel Grab), the approaches that Donald Trump and Hillary Clinton articulated on Sunday night are getting more commentary and analysis.

Huffington Post reported, “Clinton provided a substantive view squarely aimed at her base, hinting that her choices may resemble a justice who’s already serving on the court: Sonia Sotomayor.” Clinton’s “expanded definition and nod to trial experience fit Sotomayor to a tee,” Cristian Farias wrote.

An alternative view came from The Washington Times, where S.A. Miller asserted, “Hillary Clinton ended up helping Donald Trump repair some of the damage from his lewd comments about women this weekend when she ran hard left on the Supreme Court — reinforcing the one overriding reason conservative Republicans have for voting for their flawed presidential nominee.”

JUDICIAL NOMINATIONS: A USA Today editorial, meanwhile, lamented “Justice Delayed” as a result of Senate gamesmanship on judicial nominations, not only involving Judge Merrick Garland’s nomination to the Supreme Court but also dozens of lower court seats. The editorial linked to data from our sister organization, Alliance for Justice, about judicial vacancies:

“The Republican-led Senate sure knows how to make history, but not in a good way. By leaving town Sept. 28 without acting on the nomination of Merrick Garland to the Supreme Court, it has left a nominee hanging for an unprecedented six-and-a-half-months without so much as a hearing — and left the Supreme Court limping along one justice short and vulnerable to more tie votes.

“The foot-dragging extends well beyond the Supreme Court to the rest of the federal judiciary, where more than 50 other Obama nominees await hearings or confirmation votes.”

KANSAS COURT ELECTION AND ‘REVENGE POLITICS’: In a column for The Kansas City Star, Steve Rose condemned “revenge politics” behind a move by conservatives to oust four state Supreme Court justices in retention (up-or-down) elections next month. It’s among state judicial elections gaining the most attention for efforts to knock off impartial judges through the use of partisan politics this year; Rose said critics are promoting criminal justice issues but “the real motive … is to neuter the Supreme Court,” which has issued “courageous” rulings on inadequate school funding and angered legislators.

“Injecting politics into an independent judiciary could be dangerous. That certainly would have a chilling effect on future Supreme Court justices,” Rose wrote.

Presidential Candidates Diverge Over Court Picks; AFJAC’s Aron is Quoted

la-na-pol-presidential-debate-st-louis-photos-030In their second debate, presidential candidates  Donald Trump and Hillary Clinton gave sharply divergent views when asked how they would go about choosing Supreme Court justices. They “made it clear just how critical this election is for our Supreme Court,” The National Law Journal quoted Alliance for Justice Action Campaign President Nan Aron as saying.

Replying to a question from the audience, Clinton said in the Sunday debate, “I want to appoint Supreme Court justices who understand the way the world really works, who have real-life experience, who have not just been in a big law firm and maybe clerked for a judge and then gotten on the bench.” She wants a high court “that will stick with Roe v. Wade and a woman’s right to choose,” she said, according to The Los Angeles Times, “and I want a Supreme Court that will stick with marriage equality.”

“I want a Supreme Court that doesn’t always side with corporate interests. I want a Supreme Court that understands because you’re wealthy and you can give more money to something doesn’t mean you have any more rights or should have any more rights than anybody else,” she said at another point. She said the current court “has gone in the wrong direction” and she would want to see the court reverse the Citizens United campaign finance decision from 2010 and also protect voting rights.

Trump praised the late Justice Antonin Scalia as a model justice, and he described 20 individuals he has named as possible picks as “highly respected, highly thought of, and actually very beautifully reviewed by just about everybody.”

His nominees, Trump said, would protect the Second Amendment, “which is totally under siege by people like Hillary Clinton.” His opponent replied, “I respect the Second Amendment,” and said she supports  comprehensive background checks, closing “the gun show loophole” and “the online loophole.”

AFJAC’s Aron,  focusing on the critical nature of this election for the Supreme Court, noted, “The next president could appoint up to four justices who will serve lifetime tenures.” The National Law Journal article quoting her was headlined, “In Debate with Trump, Clinton Says She’d Look Outside ‘Big Law’ for Supreme Court Nominees.” It was available through a Google search.

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

Only 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.”

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

AFJAC 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

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.