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.

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.”






AFJ in the News: Congress Nears Milestone for Obstructing Judges

A MILESTONE IN OBSTRUCTION AHEAD? Senate Democrats are slamming Republicans for blocking not only a Supreme Court nomination but also those of 53 lower court nominees, according to The Hill. It cited our sister organization the Alliance for Justice saying that “Congress is on track to have the lowest number of confirmations since the session that ran from 1951 to 1952.”

A Democratic Senate majority confirmed 68 of Bush’s judicial nominees in his last two years in the White House compared to the Republican Senate majority’s confirming 22 of Obama’s judicial nominees in his last two years, noted Sen. Patrick Leahy, D-Vermont.

Although Republicans point to 327 of President Obama’s judges confirmed so far, compared to 325 for President George W. Bush, Nathaniel Gryll, AFJ’s legislative counsel, labeled that “meaningless.”  “Obama has had more judges confirmed because he’s had substantially more vacancies than Bush to fill,” Gryll explained. “At this point in their presidencies, Obama’s been tasked with filling approximately 60 more vacancies than Bush had faced.”

Two dispatches from Texas reflected the tensions mounting over judicial vacancies and political gamesmanship. “White House blasts Cruz, Cornyn for pushing Texas judges while blocking Supreme Court nominee,” The Dallas Morning News reported. A Houston Chronicle headline said, “Texas has a judge problem – not enough on the federal bench.”

THE ELECTION AND SUPREME COURT: Once again the Supreme Court has fallen by the wayside as an issue in the 2016 election, Chris Geidner wrote at BuzzFeed, as he published a timeline for upcoming dates when it might command public attention. He discussed the court’s commencing a new term on Oct. 3, the presidential debates, the possibility of a close Election Day vote for president, and what may unfold during the Senate’s lame-duck session.

Regarding the blockaded nomination of Judge Merrick Garland for the Supreme Court, The Hill reported, “Supreme Court fight colors battle for the Senate.” According to The Associated Press, “Justice Elena Kagan says the longer the Supreme Court is stuck with only eight members, the more it has to deal with the prospect of not being able to decide cases.” And The New York Times examined one appeal already on the docket for the Supreme Court this fall, “Supreme Court to Hear Case on Racial Bias Among Jurors.”

JUDICIAL DIVERSITY: The first Native American judge to serve on the Minnesota Supreme Court has taken her oath of office, The Associated Press said. Anne McKeig, formerly a Hennepin County district judge, was named to the high court by Gov. Mark Dayton.

Senator Criticizes ‘Most Pro-Business Court Since the Gilded Age’

SUPREME COURT VACANCY: “Will the next Supreme Court justice restore balance to the most pro-business court since the Gilded Age?” That headline succinctly sums up the hopes and concerns of Sen. Sheldon Whitehouse, D-R.I., in an opinion piece at Medium. Whitehouse concludes:

“The prospect of a new justice opens the opportunity to revisit an array of decisions, Citizens United chief among them, that made the Roberts Court the most ‘pro-business’ court since the Gilded Age, and restore the precedents so many of these 5–4 decisions overturned. Which is why Merrick Garland, an experienced and highly respected judge, faces Republicans’ unprecedented refusal to move on his confirmation. But with as many as four Supreme Court vacancies possible in the next two presidential terms, the Court may soon be shifting in ways that reverberate for a generation. In the struggle against corporate domination of America’s economy and elections, the stakes could not be higher.”

At The Economist, an essay depicts the high court as seeming to be “stuck in standby mode,” and teetering on a divide of ideologies. “It’s a hinge,” said University of Michigan law professor Richard Primus, “on which the direction of constitutional law could turn for decades.” And there are conflicting accounts about whether if elected, Donald Trump might nominate billionaire Peter Thiel to the court, from Huffington Post and Slate.

FORCED ARBITRATION: When The Sacramento Bee editorialized this week about the fallout of a recent scandal involving Wells Fargo & Co., it put the forced arbitration issue front and center. “According to federal regulators,” it said, “bank employees – told they would lose their jobs if they failed to make gargantuan sales quotas – forged signatures and used fake email addresses to sign up bank customers for extra products without informing them. Customers often didn’t find out until a check bounced or an odd fee showed up on a statement. When they tried to sue, mandatory arbitration agreements signed with their original accounts prompted judges to dismiss their cases.” Alliance for Justice, our sister organization, supports eliminating forced arbitration.

POLITICAL MONEY, STATE JUDGES AND SUPREME COURT: Several local prosecutors  have asked the U.S. Supreme Court to review a Wisconsin Supreme Court ruling that shut down an investigation of possible violation of campaign finance laws by Gov. Scott Walker’s campaign and conservative groups in 2011 and 2012 recall elections. One of the issues the prosecutors cite is whether two Wisconsin justices should have recused, notes a Madison Capital Times editorial. They had benefitted from spending by two of the groups involved in the investigation. This week, The Guardian brought more attention to the issue with its publication of leaked documents about the “secretive influence of corporate cash on politics” in Wisconsin and the lengths to which “even judges go to solicit money.”

Remaking U.S. Courts to Begin Soon? More Judges Are Retiring

REMAKING LOWER COURTS: Where are all the federal lower-court judges going? They’re retiring at a record rate, according to a Washington Examiner column by Paul Bedard, asserting this means the next president will “remake” our U.S. courts.

“At a rate of more than one a week, federal circuit and district judges are quitting full-time work and going on ‘senior status,’ which creates a bench vacancy but keeps them on the payroll to help with backlogs,” Bedard wrote.

Those judges taking “senior status” have hit a new high for the last three decades, the column added, with 56 circuit courts of appeal and district judges leaving this year compared to 38 in the final year of President George W. Bush’s administration. For more data about judicial vacancies and nominations, check out the website of our sister organization, Alliance for Justice.  

LEAHY ON SUPREME COURT VACANCY: In a Constitution Day essay for The Washington Times, Democratic Sen. Patrick Leahy of Vermont said there “is still time for the Senate to correct its course and consider Chief Judge [Merrick] Garland’s nomination” to the Supreme Court before that court convenes next month. “There should not be an empty seat on the bench when the Supreme Court convenes on the first Monday in October,” Leahy insisted. “If there is, it will represent the disrespect that Senate Republicans have not only for the president’s powers under the Constitution but for the independent judiciary that the Constitution created.” Leahy is senior Democrat on the Senate Judiciary Committee.

Nonetheless, “Senate Republican leaders are sending a blunt message to Merrick Garland: You aren’t getting on the Supreme Court this year — not even if Hillary Clinton wins in November,” CNN reported, based on remarks by Senate Majority Leader Mitch McConnell and his chief deputy, Sen. John Cornyn.

NO MORE ‘GOLDEN WEEK’: The Supreme Court declined to restore a short period of in-person early voting known as Golden Week, when Ohioans could both register to vote and cast their ballot on the same day, according to The New York Times. As viewed by Mother Jones, “The Supreme Court Just Dealt a Blow to Voting Rights Advocates.”

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.”

High Stakes for Courts on Election Day; AFJ in the News

U.S. COURTS AND THE ELECTION: Just how central is the presidential election for the future of all U.S. courts? “Fate of federal courts rests with the next president,” declares the headline for an essay by John G. Malcolm and Tiffany H. Bates of the Heritage Foundation’s Center for Legal and Judicial Studies in The San Diego Union-Tribune.

Taking into consideration the current vacancy on the Supreme Court and more vacancies that are likely, as well as the hugely important role of the lower federal courts, the authors conclude, “The next president will have the opportunity to leave a massive imprint on the federal courts for a generation or more. The stakes are high indeed.”

With the presidential campaigns entering the home stretch,  Senate Republicans continued what Media Matters for America calls “Unprecedented Obstruction” on President Obama’s Supreme Court nomination of Judge Merrick Garland and numerous lower-court nominations; Media Matters cites Alliance for Justice data to drive home its point. Both Garland and Vice President Joe Biden visited Capitol Hill on Thursday as part of a new push for Garland’s confirmation “in the face of a united Republican blockade,” according to The Washington Post.

Meanwhile the Daily 202 blog of the Post asks, “Did Obama squander an opportunity by nominating Merrick Garland?” The blog reports, “Some Democrats privately fear that Obama blew an opportunity to help re-activate the coalition that elected him twice by not picking a more progressive nominee – especially a minority candidate – to replace the late Antonin Scalia. Had Obama nominated someone who really ginned up the Democratic base, perhaps [Hillary] Clinton and the party would have more whole-heartedly embraced him or her.”

QURESHI NOMINATION: The Atlantic takes a look at the long history of nominations that have diversified the federal judiciary with individuals of varying religious affiliations. Obama’s nomination of Abid Qureshi of Washington to become the first Muslim American federal judge caps this president’s “legacy of diversifying the judiciary, but the Senate seems unlikely to act on it,” The Atlantic says.

ROE V. WADE AND NEW YORK LAW: “As legislation that would codify the Roe v. Wade decision into state law repeatedly has stalled, [New York] state Attorney General Eric Schneiderman on Thursday issued a legal opinion that current state law cannot diminish health protections afforded under that landmark Supreme Court decision or others that have come since,” according to The Albany Times Union.

AFJ Applauds Diversity Milestone; Ginsburg Looks for ‘Cooler Heads’


AFJ LEADER ON QURESHI NOMINATION: President Obama’s nomination of Washington attorney Abid Qureshi for a federal judgeship marks a milestone when it comes to the Obama administration’s record for expanding judicial diversity, The Christian Science Monitor quoted Alliance for Justice President Nan Aron as saying.

“The President has always made diversity a centerpiece of his judicial selection,” Aron added. Qureshi, if confirmed, would become the first Muslim American nominated for a federal judgeship. His confirmation to the U.S. District Court for the District of Columbia “could be a long shot,” the newspaper said, given its timing late in the year and the fact that Senate Republicans “have stopped confirming [Obama’s] judicial picks.”

According to The (Spokane) Spokesman-Review, however, Senate Majority Leader Mitch McConnell voiced support for holding votes on “a bipartisan package of four” nominees from California, Pennsylvania and Utah. But Sen. Cory Booker, D-N.J., protested, saying the proposal would pass by two long-waiting district court nominees who also are “the only two African Americans on the list of the next 15 – that to me is unacceptable.”

GINSBURG SPEAKS OUT: Supreme Court Justice Ruth Bader Ginsburg told a law school audience about the Senate’s inaction on high court nominee Judge Merrick Garland, “I do think cooler heads will prevail, I hope sooner rather than later,” according to The Washington Post. “The president is elected for four years not three years, so the power he has in year three continues into year four,” she said. Meanwhile Vice President Joe Biden will lead a new push for a Senate vote on Garland, The New York Times said, and he was to speak at a Capitol Hill news conference today.

ACCESS TO JUSTICE AN ISSUE IN TPP: Sen. Elizabeth Warren, D-Ma., “opened a new broadside on Wednesday against the White House’s signature Pacific trade pact,” according to Agence France-Presse, specifically objecting to what AFP described as the “so-called Investor-State Dispute Settlement mechanism to resolve corporate grievances.” AFJ opposes forced alternative methods of dispute resolution including this provision.

ALABAMA JUDICIAL SELECTION CHALLENGED: The Associated Press reported, “A civil rights group challenged Alabama’s practice of electing appellate judges by statewide vote on Wednesday, saying the result is all-white courts in a state where one in four people is African-American.” A similar lawsuit, on behalf of Latino voters, was lodged in Texas earlier this summer.

Renewed Pressure to Lift Blockade, and a Historic Judicial Nominee

GARLAND NOMINATION: Senate Democrats and supporters of Supreme Court nominee Judge Merrick Garland took their efforts to step up pressure for his confirmation to the sidewalk outside the nation’s highest highest court today. Yet Senate Republicans weren’t yielding any ground in refusing to act.

We Need Nine, a group allied with the White House, held a news conference outside the court with former Garland law clerks and Democratic senators. “Republicans have deadlocked our entire system of justice because of the Republican Senate’s dysfunction,” Senate Minority Leader Harry Reid said in advance of the event, according to ReutersNPR reported about the nominee’s record wait, “170-Plus Days And Counting: GOP Unlikely To End Supreme Court Blockade Soon,” and a Huffington Post headline said, “Harry Reid Vows To Jam Up Committee Meetings Until GOP Moves On Supreme Court Vacancy.”

OTHER NOMINATIONS: Will some other judicial nominees advance? The Senate Judiciary Committee was to consider nominees for five district court judgeships in case-backlogged Texas today, as reported by The Texas Tribune. To learn more about what’s going on in Texas, see this Alliance for Justice web page: John Cornyn and Ted Cruz’s Texas: a State of Judicial Emergency.

And on Thursday, the committee is scheduled to vote during a business meeting on three district court nominees. The American Bar Association, meanwhile, issued a statement by president Linda Klein saying the number of judicial vacancies has almost doubled over the course of this Congress to 89 and urging action to promptly schedule floor votes on 20 district court nominees now pending on the Senate calendar.

HISTORIC FIRST: According to The Washington Examiner and other news media, President Obama nominated Latham & Watkins law partner Abid Riaz Qureshi to the U.S. District Court for the District of Columbia on Tuesday, and Qureshi is the first Muslim American nominated for the federal bench. “I commend President Obama for taking this important step in continuing to pick the best and brightest from every community to serve as part of our nation’s judiciary,” said Farhana Khera, executive director of Muslim Advocates.

Heightened Pressure for Senate to Act on Court Nominees, Including Garland

CapitolflagJUDICIAL NOMINATIONS: With Congress returning to work today after its summer recess, “Senate Democrats are planning to ratchet up their pressure on Republicans to hold confirmation votes on President Barack Obama’s judicial nominees, including Edward Stanton III of Memphis,” The Memphis Commercial Appeal reported.

The article, circulated by the USA Today Network, mentioned a report by the Alliance for Justice last year finding “that the pace of judicial nominees confirmed under the GOP-controlled Senate is the slowest in 60 years.” Republicans have disputed that idea. There are 27 judicial nominees awaiting votes on the Senate floor.

“There is absolutely no reason why all of these judges should not be confirmed, other than sheer obstructionism,”  Glenn Sugameli, a lawyer and founder of the nonprofit group Judging the Environment, told the newspaper.

Seven months after Obama nominated U.S. District Judge Merrick Garland for a vacancy on the Supreme Court, meanwhile, supporters are mounting a new effort to spur Senate action, according to CNN. “With the Senate wrapping up its longest recess of the year, communities are refusing to allow senators to go back to the Capitol quietly,” said Michele Jawando of the Center for American Progress. Her group is planning  demonstrations in various states to urge senators to act on Garland’s nomination. As the presidential election plays out, Republican senators have refused to hold hearings.

U.S. SUPREME COURT AND VOTING LAWS: How has the passing of Justice Antonin Scalia affected recent Supreme Court actions on strict state voting laws? “Without conservative Supreme Court majority, voter-law challengers make gains,” The Washington Post reported, focusing on legal challenges to laws passed by Republican legislators in North Carolina and several other states.

Scalia’s death “has removed the Supreme Court as a crucial conservative backstop for such measures,” and appeals courts found voting laws in North Carolina and Texas to have discriminated against Hispanics and African Americans, according to The Post. The Economist, meanwhile, declared in a headline for its column about U.S. politics, “Supreme Court blocks a last-ditch attempt to suppress votes in November.”

KANSAS JUDICIAL ELECTION: You won’t see this happen very often. Four former Kansas governors, two Democrats and two Republicans, are close to embarking “on a three-city tour urging voters to keep partisan politics out of judicial retention elections,” according to The Lawrence Journal-World. In a state Supreme Court retention (up-or-down) election likely to grab national attention, conservatives long critical of the court are targeting four of five justices on the ballot for removal.

The Wichita Eagle noted that Kansas Gov. Sam Brownback, a Republican, could appoint a state Supreme Court majority if the ouster efforts succeed. The judicial races “promise to feature fiery rhetoric on a range of issues, including abortion and school funding,” the newspaper said. The state GOP has taken a stance opposing the four targeted justices and supporting retention of the fifth, a Brownback appointee.