PFAW and Granite State Progress Bring the "Supreme Court" to Sen. Ayotte

In light of Sen. Kelly Ayotte’s continued refusal to fill the Supreme Court vacancy, members of People For the American Way and Granite State Progress donned Supreme Court justice robes Wednesday in front of her Nashua office to demonstrate that Granite Staters will be watching the Supreme Court vacancy when she returns to DC from Congressional recess. Members of both groups also brought a symbolic empty chair and a sign reading “fill this seat.”

scotus justice protest

“We’re bringing the Supreme Court to Sen. Ayotte today, since she’s tried so hard to ignore it,” said Linds Jakows, New Hampshire Campaign Organizer with People For the American Way,  “Obstruction that results in leaving the seat open for Trump to fill is neither independent nor bipartisan, as she likes to call herself, and she’s ignoring the majority of her constituents who understand filling this vacancy is crucial in bringing forth justice for millions of people.”

scotus justice protest

Ayotte has remained in lockstep with her party leadership on this vacancy, forcing the highly qualified Merrick Garland to wait more days than any nominee in history. Recently Ayotte called Trump’s Supreme Court shortlist a “good start,” apparently ignoring the many extreme rulings from these judges. One judge on Trump’s shortlist, Steven Colloton, said that a woman who reports sexual harassment cannot take legal action if her employer retaliates by firing her.

scotus justice protest

Participating activists took photo petitions amplifying this message -- Margaret and Rocco Femia and Carol and Karl Stamm called out Ayotte’s hypocrisy and so-called independence, while Marcel ‘Dusty’ Liberge and Steven Goldstein focused on the lack of justice from an 8-member court.

PFAW

PFAW Members Catch Up to Kelly Ayotte in Manchester 5K to Ask if She Trusts Donald Trump to Fill Supreme Court Vacancy

kelly ayotte

Yesterday, at the Cigna/Elliot 5K Road race in downtown Manchester, Sen. Kelly Ayotte revealed a level of trust in Donald Trump’s ability to choose a qualified Supreme Court justice when questioned by a Manchester voter.

Watch her response:

Ayotte, who has repeatedly ignored the vast majority of Granite Staters who want her to do her constitutional duty and support moving forward with hearings and a vote for Supreme Court nominee Merrick Garland, seemed unconcerned with the particulars of Trump’s judgement regarding the next Supreme Court justice, but said she’d looked at the list and thinks it’s a “good start.”

PFAW

PFAW Hosts Telebriefing on the Supreme Court and 2016

Even as GOP presidential candidate Donald Trump hits new lows in his campaign—from attacking Gold Star parents to suggesting gun violence as a way to stop Hillary Clinton—Republican senators continue to hold open the vacant Supreme Court seat for Trump to fill.

Yesterday People For the American Way held a telebriefing for members and supporters about the critical role the Supreme Court plays in 2016 and beyond, and how progressive activists can hold GOP senators accountable for their unconscionable blockade of President Obama’s Supreme Court nominee. PFAW’s Marge Baker, Drew Courtney, and Elliot Mincberg were joined by Public Policy Polling director Tom Jensen to discuss how to make the Supreme Court a winning issue in the election.

You can listen to the full telebriefing here:

PFAW

Voting Rights – We Can Win

This Saturday marks the 51st anniversary of the signing of the Voting Rights Act. Though we have a long way to go to restore this landmark law and ensure that every voter can cast a ballot that counts, it's important to recognize the progress being made.

Yesterday a ruling in North Dakota provided relief for voters facing restrictive voter ID this November. From the Native American Rights Fund:

[A] federal district court enjoined North Dakota’s strict voter ID law and ruled that voters unable to obtain the necessary identification may vote in the upcoming election by completing a declaration or affidavit. The court agreed with the seven Native American voters that the new law disproportionately burdens Native Americans and denies qualified voters the right to vote.

Last week was huge for voting rights victories, with voters in five states receiving favorable rulings.

Kansas: A Shawnee County district judge ruled that thousands of questioned (thanks to Kris Kobach) voter registrations will count in the August 2 primary. As reported by the Kansas City Star:

A Shawnee County district judge ruled Friday that the votes of 17,500 people whose registrations had been questioned are to be tallied in Tuesday’s primary.

Judge Larry Hendricks issued a temporary order, meaning the votes will be counted Tuesday. The American Civil Liberties Union filed the lawsuit against Secretary of State Kobach on behalf of Kansas voters who were told that they could vote in federal elections but that their votes in state and local elections would not be counted.

Louisiana: A federal district court held the state accountable for its neglect of the National Voter Registration Act (NVRA), which expands voter registration access to motor vehicle offices and other agencies. Niyati Shah provided this Project Vote analysis:

In this exhaustive opinion, the court basically held that mere lip service to the public assistance provisions of the National Voter Registration Act (NVRA) is not an option . . . In Louisiana, however, the state had apparently decided that our vulnerable citizens weren’t all that important, and gave all sorts of excuses for neglecting Section 7 of the NVRA. But, in a resounding victory for the right to franchise, a federal district court rejected the state’s arguments.

North Carolina: The state's monster voter suppression law that covers a number of harmful policies was struck down by the Fourth Circuit Court of Appeals. Paul Gordon provided this PFAW Foundation analysis:

A three-judge panel of the Fourth Circuit Court of Appeals today reversed a lower federal court and struck down North Carolina’s notorious voter ID law, as well as its provisions curtailing or eliminating early voting, same-day registration, out-of-precinct voting, and preregistration of 16 and 17 year-olds.

Significantly, the unanimous circuit court concluded that the law does more than "just" have a discriminatory impact, in violation of a section of the Voting Rights Act (VRA).  The court also found that the law’s purpose was to discriminate, putting it in violation of the United States Constitution. One piece of evidence: state officials moved to enact the law within days of the Shelby County case removing any preclearance requirements under Section 5 of the VRA.

Virginia: Though here it was a state court pushing back on voting rights progress, Governor Terry McAuliffe stood strong in defense of voting rights restoration for formerly incarcerated persons. After the Virginia Supreme Court struck down Governor McAuliffe’s executive orders restoring the voting rights of over 200,000 formerly incarcerated persons, McAuliffe said "he would forgo his blanket declaration — and, instead, individually sign about 206,000 restoration orders for ex-felons, including 13,000 who had registered after his April order."

Wisconsin: A federal district court struck several provisions of the state's voter suppression package. Rick Hasen provided this Election Law Blog analysis:

This is a pretty sweeping opinion, which rejects many of the state’s arguments for its restrictive voting rules as [pretextual], and really aimed at giving Republicans advantage in elections. The judge was particularly skeptical of measures which made it harder to vote in Milwaukee, with its large population of minority voters, and to a lesser extent, Madison, a liberal stronghold in the state. But this is a careful opinion which parses the evidence and does not accept all of the claims.

Two weeks ago it was Texas and, again, Wisconsin.

Texas: The Fifth Circuit Court of Appeals affirmed previous rulings against voter ID. As reported by the Texas Tribune:

Texas' voter identification law violates the U.S. law prohibiting racial discrimination in elections, a federal appeals court ruled Wednesday.

The U.S. 5th Circuit Court of Appeals affirmed previous rulings that the 2011 voter ID law — which stipulates the types of photo identification election officials can and cannot accept at the polls — does not comply with the Voting Rights Act.

Wisconsin: A federal district court provided relief for voters facing restrictive voter ID this November. From the American Civil Liberties Union:

Wisconsin’s voter ID law has been a mistake from day one. This ruling is a strong rebuke of the state’s efforts to limit access to the ballot box. It means that a failsafe will be in place in November for voters who have had difficulty obtaining ID.

There is a lot of work left to do in the voting rights arena. Not even these victories signal the end of the road for voting rights advocates. But they are important signs of progress.

Onward.

PFAW

NC Voting Restrictions Struck Down as Intentionally Discriminatory

A three-judge panel of the Fourth Circuit Court of Appeals today reversed a lower federal court and struck down North Carolina’s notorious voter ID law, as well as its provisions curtailing or eliminating early voting, same-day registration, out-of-precinct voting, and preregistration of 16 and 17 year-olds.

Significantly, the unanimous circuit court concluded that the law does more than “just” have a discriminatory impact, in violation of a section of the Voting Rights Act (VRA).  The court also found that the law’s purpose was to discriminate, putting it in violation of the United States Constitution.  One piece of evidence: state officials moved to enact the law within days of the Shelby County case removing any preclearance requirements under Section 5 of the VRA.

The district court had concluded that the provisions at issue had neither a discriminatory intent or effect, noting that there was little “official discrimination” in the state since the 1980s.  The unanimous Fourth Circuit took a more careful look:

The record reveals that, within the time period that the district court found free of “official discrimination” (1980 to 2013), the Department of Justice issued over fifty objection letters to proposed election law changes in North Carolina -- including several since 2000 -- because the State had failed to prove the proposed changes would have no discriminatory purpose or effect. …

During the same period, private plaintiffs brought fifty-five successful cases under § 2 of the Voting Rights Act.

In other words, it was only the VRA (including its preclearance provision) that prevented discriminatory voting changes from being enacted and enforced.

In the court’s analysis of the law’s elimination of one of two Sunday early voting days (which were used as “souls to the polls” voting turnout efforts by African Americans), the judges pointed to North Carolina’s own attorneys’ explanation to the lower court of why the state did this.  Among other things, the state claimed it had an interest in more uniform rules across the state, and not all counties had Sunday early voting.  The attorneys elaborated on its justification, noting that counties with Sunday early voting in 2014 were disproportionately African American and disproportionately Democratic.  The Fourth Circuit judges called this as close to a smoking gun as we’re likely to see in modern times.

Using race as a proxy for party may be an effective way to win an election. But intentionally targeting a particular race’s access to the franchise because its members vote for a particular party, in a predictable manner, constitutes discriminatory purpose. This is so even absent any evidence of race-based hatred and despite the obvious political dynamics. A state legislature acting on such a motivation engages in intentional racial discrimination in violation of the Fourteenth Amendment and the Voting Rights Act.

In 2008 and 2012, the state’s more open voting laws empowered more African Americans to vote.  Armed with this knowledge, and soon after Shelby County, the state legislature took action to adopt the laws being challenged in this case.  The discriminatory intent was transparent, but with a wink and a nod, conservatives devised rationales for the restrictions.  The Fourth Circuit today rejected those rationales and recognized that these were all “solutions in search of a problem.”  Those bogus explanations may not get probed very deeply by the media, but it is harder to get away with the “wink and nod” approach before an effective federal court.  All three judges agreed that the provisions were adopted with the intent to discriminate, in violation of the Constitution.  (One of the judges would have sent the case back down to the district court to see if post-enactment changes to the voter ID law affected the court’s legal analysis.)

Although the court could have used the unconstitutional motivation as a basis to impose a preclearance requirement on the state, the judges concluded that would not be necessary in this case.

If you ever wonder if courts matter, think about this case.  We need fair and independent courts with highly qualified judges to protect our rights and our democracy.  Courts matter immensely, as does the identity of the president who nominates federal judges to the bench.

PFAW Foundation

Pew Report: With GOP Presidents, We Get Fewer Judges of Color

The Pew Research Center has released a new report (“More minority federal judges have been appointed under Democratic than Republican presidents”) examining the presence of people of color serving as judges in our nation’s federal judiciary.  Their study’s conclusion, apparent from the title, quantifies what many Americans probably already suspected: Democratic presidents have done more to increase judicial diversity than have GOP presidents.

Pew’s report shows that:

The number of minorities named to the federal courts has increased faster under Democratic presidents than Republican presidents. From 1945 to today – a period in which Republicans and Democrats have each occupied the White House for a total of 36 years – Democratic presidents have appointed three times as many black judges as their Republican counterparts (162 vs. 49). Democrats have also named more Hispanic judges to the federal bench (73 vs. 51).

Pew’s analysis also indicates that President Obama has put more Asian Americans on the federal bench than all his predecessors combined:

Before 2009, Republicans had appointed 10 Asian judges, while Democrats appointed six. During Obama’s presidency the number of Asian federal judges greatly increased: About half (17) of the 33 Asian American judges to ever serve on the federal bench were appointed by Obama.

As we have written before in discussing why it is important to have a judiciary that looks like America:

For much of our nation's history, judges were uniformly white men. When women argued for equality under the law, they were repudiated with sexist arguments that only men could have come up with. African Americans were told that separate can be equal. Native Americans were told that they never really owned the land they had been on for centuries, but were only in temporary possession of it until Europeans arrived.

A judiciary that looks nothing like America is far less likely to understand how the law affects other people, a misunderstanding that has often led to great injustice. As Republicans exacerbate judicial emergencies, their obstruction is preventing us from having a judiciary that looks more like America.

We see this at all levels, including at the Supreme Court.  Justice Sotomayor’s dissent in the Schuette affirmative action case and her condemnation of a prosecutor’s attempt to substitute racial stereotype for evidence are great examples.  At the Obergefell oral arguments, when Justice Scalia suggested that a ruling for same-sex couples could force anti-gay clergy to conduct marriages against their religious beliefs, Justice Kagan had to inform him what Jewish Americans already know: that many rabbis refuse to conduct marriages between Jews and non-Jews without raising any constitutional problem.

Diversity brings people with more varied life experiences to our courtrooms, and that helps judges make better decisions.  And when Senate Republicans engage in record obstruction of President Obama’s judicial nominees, the result is a less diverse federal bench.

PFAW

GOP's Record-Breaking SCOTUS Obstruction

A lot can be accomplished in 125 days.  It took less time than that for the Allies to liberate Paris after D-Day.  And Franklin Roosevelt’s first 100 days are still remembered for the incredible amount that was accomplished in such a short time.

So surely the United States Senate could manage to hold a hearing within 125 days for an unquestionably qualified, uncontroversial Supreme Court nominee with strong support from across the ideological spectrum.  But the Republicans who control the Senate have continued to simply pretend that President Obama hasn’t nominated anyone to fill the vacancy.  And at Day 125 of the nomination, the GOP has set a shameful record:  D.C. Circuit Chief Judge Merrick Garland is now the longest pending Supreme Court nominee in American history, and he still has not been allowed to have a committee hearing.

Of course, Senate Republicans can act quickly when they want to.  For instance, it was only a few hours after Justice Antonin Scalia’s untimely death that Senate Majority Leader Mitch McConnell announced that, contrary to all precedent, the Senate would refuse to consider anyone nominated by President Obama to fill the vacancy, no matter who it might be.  This was at a time when there was still nearly a full year left in Obama’s presidency, so McConnell’s lightning-fast decision for obstruction and politicization guaranteed that the Court vacancy would remain open not only for the rest of that Supreme Court term, but also for most or even all of the following term as well.

Unfortunately, neither McConnell nor his fellow GOP senators seem to care about the damage an extended vacancy can do to a Court characterized by important and headline-grabbing 5-4 decisions.  These are analyzed in Material Harm to Our System of Justice: The Consequences of an Eight-Member Supreme Court, a report by our affiliate People For the American Way Foundation and the Constitutional Accountability Center.  Senate Republicans are unmoved that their unprecedented obstruction is politicizing what is supposed to be an apolitical institution.  They are not bothered that their unprecedented obstruction is harming their constituents and people and businesses across America.

But if they don’t care about harming the Constitution, the American judicial system, and their own constituents, maybe these GOP senators will care if it hurts them.  They should be concerned about the finding in a new polling memo out today from the Constitutional Responsibility Project and Hart Research.  The memo shows that:

  • As the GOP’s obstruction has dragged on, even more voters want a hearing than on the day he was nominated.  National surveys have all registered at least 60 percent in favor, with political independents and voters in battleground states with vulnerable Republican senators demonstrating comparable levels of support.
  • Nearly two-thirds of voters consider it to be “wrong” that Senate Republicans are refusing to hold hearings.
  • In battleground states, support for Garland’s nomination grows as voters learn more about his background and extensive qualifications.
  • At least seven out of ten voters think Republicans are playing politics with the Supreme Court, and a supermajority is convinced that the Senate is failing to fulfill its constitutional duty. No GOP framing to justify their obstruction is considered nearly as compelling.
  • In key battleground states, 40 percent or more of voters say that they are less likely to support incumbent senators because they are obstructing Chief Judge Garland’s nomination.  At the same time, most voters don’t seem to know what their own senator’s position is.  So when they find out, vulnerable GOP senators could find themselves even more vulnerable.

So on this record-breaking 125th day of the GOP’s refusal to do its job, let us hope that Senate Republicans will move to hold a hearing and vote on Judge Garland as soon as they return in September, even if it’s only to save their own skin.

PFAW

At Committee Meeting, PFAW & Allies Urge Senators to #DoYourJob

Thursday, July 14, marked the 120th day since Chief Judge Merrick Garland was nominated to the Supreme Court. July 14 was also the Senate Judiciary Committee’s final markup before the August recess. In order to highlight Republican senators’ irresponsible obstruction on  judicial vacancies, People For the American Way staff members attended and stood in solidarity with activists from Planned Parenthood Federation of America, the Leadership Conference on Civil and Human Rights, and Americans United for Change at the markup.

We wore buttons that read “#DoYourJob” and some advocates silently held signs when the meeting concluded. Our presence put additional pressure on Chairman Sen. Chuck Grassley and his Republican colleagues on the Senate Judiciary Committee to give Garland fair consideration and to fill the growing number of other judicial vacancies.

On the agenda for the markup meeting were four judicial nominees: Jennifer Puhl, Don Coggins, David Nye, and Kathleen Sweet. Puhl, Coggins, and Nye were unanimously approved by the committee on a voice vote, but they join a long list of nearly 20 other nominees who are still waiting for consideration from the full Senate. They are unlikely to receive a vote before the fall.

During the committee proceedings, ranking member Senator Patrick Leahy (D-VT) gave voice to our frustrations, and the frustrations of so many Americans, by directly addressing the rising number of judicial vacancies across the United States and the failure of Republican senators to fulfill their job requirements by adequately processing judicial nominees:

“The sharply rising number of judicial vacancies across the country is the direct consequence of Republican leadership neglecting the Senate’s duty to ensure the federal judiciary can function. When Senate Republicans took over the majority last year, there were 43 judicial vacancies, 12 of which were emergency vacancies. Because of the Republicans’ refusal to do their jobs, vacancies have nearly doubled to 83, and emergency vacancies have nearly tripled to 30.”

Astoundingly, at the last markup session before the congressional recess, and 120 days since Merrick Garland’s nomination, Sen. Chuck Grassley did not even speak about the most pressing judicial vacancy: the open ninth seat on the Supreme Court. Sen. Leahy, however, did, saying:

"Republicans are failing our justice system and the American people by continuing their unprecedented blockade of Chief Justice Merrick Garland’s nomination for the Supreme Court.”

We agree with Sen. Leahy and so many Americans. The American people deserve a fully-functioning judicial system, including a Supreme Court with nine justices. Republican Senators’ refusal to adequately process judicial nominees is disgraceful. Tell Sen. Grassley to stop playing politics with our justice system, and tell GOP senators to do their jobs. 

PFAW

Senate GOP Keeping Court Vacancies Open So Trump Can Transform America’s Judiciary

This piece originally appeared on the Huffington Post.

The Constitution sets up an independent judiciary as the third branch of government, intended to protect people’s rights and to serve as a check on the power of the other two branches. Our nation’s charter tasks the president and the Senate with the job of selecting and vetting the people who would serve on those courts.  President Obama has been doing his duty by nominating qualified women and men to serve as judges at all levels of the judiciary, including the Supreme Court.

But the GOP-controlled Senate is not living up to its constitutional responsibilities. While this has always been harmful to America, it is even more so with Donald Trump the presumed presidential nominee of his party.

Mitch McConnell and his party have slow-walked or outright blocked so many nominees that the number of circuit and district court vacancies has risen from 40 when they took over the Senate to 80 today. (There are also several vacancies for the Court of International Trade and the U.S. Court of Federal Claims.) In that same time, the number of vacancies formally designated as judicial emergencies has skyrocketed from 12 to 29. The Senate has not been allowed to vote on nominees who were thoroughly vetted and approved months ago by the Judiciary Committee with strong bipartisan support.

Yesterday, Sen. Tammy Baldwin of Wisconsin went to the floor to draw attention to the problem. She noted that while the Senate GOP’s blockade of Supreme Court nominee Merrick Garland has been in the headlines, that has not been the case with the obstruction of lower court nominees.

She focused particularly on Seventh Circuit nominee Donald Schott, who not only has Democrat Baldwin’s support, but also that of his other home-state senator, Republican Ron Johnson.  Schott would fill the nation’s longest circuit court vacancy, which has been open for well over six years.  Since the Supreme Court takes so few cases, the Seventh Circuit is usually the last word on the meaning of the Constitution and federal laws for millions of people in Wisconsin, Illinois, and Indiana, and every day that goes by with that vacancy open hurts everyone in those states.  Schott earned strong bipartisan support from the Judiciary Committee, which advanced his nomination to the full Senate four weeks ago.  Baldwin noted that Schott also has the support of a bipartisan group of former Wisconsin Bar presidents.  Saying that “the people of Wisconsin and our neighbors in Illinois and Indiana deserve a fully functioning appeals court,” Baldwin urged McConnell to finally allow votes on Schott and on all of the judicial nominees who have cleared the Judiciary Committee.  Many of them have been waiting for more than half a year for a floor vote, with several having been approved by the Judiciary Committee last year.

But Republicans are fighting to keep vacancies open for as long as possible so that they will be filled by a President Donald Trump.

Donald Trump, who wants to make it easier for the government to punish media sources whose reporting he disagrees with.

Donald Trump, who has said that Latinos cannot serve effectively as unbiased judges.

Donald Trump, who would ban certain people from entering the country based on their religion.

Donald Trump, who has demeaned and humiliated women at every opportunity.

Donald Trump, who has used hate groups’ blatantly anti-Semitic imagery in his campaign.

Donald Trump, who has said he is considering firing all Muslim TSA agents.

With serious discussion among scholars, political figures, and Americans across the political spectrum on whether Trump’s extreme views amount to fascism, we need a strong, effective, and independent federal judiciary more than ever. Yet Senate Republicans are pulling out the stops to allow Donald Trump to move quickly to dramatically transform our judiciary from the Supreme Court on down.

The Senate GOP is abdicating their constitutional and moral responsibility to the American people and to our democracy.

PFAW

PFAW Hosts Member Telebriefing on the SCOTUS Term

As the Supreme Court session wrapped up for the term, PFAW hosted a member telebriefing on Thursday to analyze the impact of the term's decisions and to look towards the future of the Court overall. The latest term was atypical in a number of ways, from the death of Justice Antonin Scalia to Republican senators’ unprecedented and unconstitutional refusal to consider Judge Merrick Garland’s nomination, leaving the Court with only eight justices to decide cases. 

On the call were PFAW’s Executive Vice President Marge Baker, Communications Director Drew Courtney, Senior Legislative Counsel Paul Gordon, and Senior Fellow Elliot Mincberg, who discussed the Republicans' blockade of the Garland nomination, the impact of the court being forced to operate with only eight justices for a significant portion of the term, and the future of the Supreme Court in coming years, with three of the current justices soon to be over the age of 80. They also fielded questions from members around the country, unpacking the outcomes of cases such as Fisher v. University of Texas, Whole Women’s Health v. Hellerstedt, U.S. v. Texas and others.

Mincberg said that “this term turned out very differently” than many expected because of two primary reasons: Justice Scalia’s passing, and Justice Kennedy joining the moderate justices in decisions on cases such as Fisher.  Baker stressed that “we need a full Court” in order for the Supreme Court to work effectively and encouraged members to speak out about the issue. She also emphasized that “it does make a difference to vote,” and that Americans need to have their voices heard by their representatives about the Court.    

You can listen to the full telebriefing here:

 

PFAW