The GOP's Planned Sabotage of the Supreme Court

The Supreme Court has nine seats.  That number was established by Congress way back in 1869.  Before then, Congress had set the number to be as low as six and as high as ten.  But now a nine-judgeship Supreme Court is the law of the land and will remain so unless Congress passes a new law to change it.

It’s basic civics that schoolchildren learn: The way to change a congressional statute is for both Houses of Congress to pass a bill changing the law and for the president to sign it (or have his or her veto overridden by Congress).  In a democratic nation governed by the rule of law, it is not acceptable for one political party to use obstruction of unprecedented proportions to nullify the law and impose its own contrary view on what the law should be without following the constitutionally-mandated process.

Yet that is exactly what the Republican Party has been doing since Justice Scalia’s unexpected death through their blockade of President Obama’s nominee to the Supreme Court, Judge Merrick Garland.  For months, they said the next president should fill the vacancy.  But as polls have forecast a Hillary Clinton victory, their tune has changed.  Leading Republicans and conservatives are actually proposing to leave the current vacancy unfilled, but only if the American people vote to elect Hillary Clinton president in November.  Some are openly talking about not allowing any Clinton Supreme Court nominee to be confirmed for any additional vacancies.

If this sounds familiar, it may be because Senate Republicans tried this in 2013 when they sought to unilaterally change the law and impose an eight-seat cap on the 11-seat District of Columbia Circuit.  They (unsuccessfully) sought to prevent President Obama from filling any of three existing vacancies and restoring balance to what had been a far right D.C. Circuit court.  The current conflict and planned constitutional crisis represent a massive escalation by Mitch McConnell and all the GOP senators who take orders from him.

By amazing coincidence, the three oldest justices today are ones that conservatives revile, either because of their progressive record (Ginsburg and Breyer) or because of a small number of progressive decisions in an otherwise extremely conservative record (Kennedy).  The next oldest justice (the arch-conservative Clarence Thomas) is ten years younger than the youngest of those three.  So conservatives are seeking to use obstruction to de facto shrink the number of justices and thus control the ideology of the nation’s highest court, just as they tried and failed to do with the D.C. Circuit.  It is imperative that they fail again.

The American people have seen this type of political interference on an independently operating Supreme Court.  Back in 1937, Franklin Roosevelt introduced his infamous “court-packing” proposal, which asked Congress to create a new seat whenever a sitting justice reached 70 and didn’t retire (up to six such new seats).  The four conservative justices who most reliably found a fifth vote to strike down portions of the New Deal just happened to be over 70.  As a result, FDR’s proposal was widely seen—and condemned—as an effort to give him the power to quickly change the ideological balance of the Court.  Despite lopsided Democratic majorities in both houses, the proposal did not pass Congress, and it played a role in sharply reducing Roosevelt’s popularity and substantially diminishing the Democratic Party’s congressional majorities in the 1938 midterms.

Americans rejected FDR’s political interference with the Supreme Court, even though he sought to do it through properly-passed legislation.  Republicans’ “court-unpacking” scheme represents the same type of interference with the high court, but they plan to do it regardless of whether legislation is passed lowering the number of justices.  They are intending to act through obstruction, to prevent Congress from working rather than act consistently with the Constitution and the rule of law.

The GOP must pay a political price for this.  It is critical that this direct assault against the integrity of the Supreme Court and the rule of law not succeed.  Perhaps the most important way to stop it is to use our votes to ensure that Democrats control the Senate in the next Congress.

PFAW

SCOTUS Schedule Speaks a Thousand Words

Last Friday, the Supreme Court released its schedule of oral arguments for December.  Notably missing was a potentially far-reaching religious liberty case called Trinity Lutheran Church of Columbia v. Pauley, which has the potential to weaken church-state separation provisions in state constitutions.  As we stated in our September preview of the Court’s current term:

Notably, one of the highest profile cases on the docket so far was accepted for review before Justice Scalia passed away. The Court at that time had no reason to shy away from the religious liberty issues raised in Trinity Lutheran ChurchBut now, even though it has been fully briefed and is ahead of many other cases in line, the Court has not yet scheduled it for oral arguments. The Court appears to recognize that it simply can’t do its job in this case as long as Senate Republicans continue to force it to operate without its congressionally mandated ninth seat.

So it was disappointing but not surprising given the continuing vacancy on the Court  to see another month’s schedule of oral arguments skip over this case.  Moreover, the Court’s difficulties show up in other ways, too, as SCOTUSBlog’s Amy Howe noted late last Friday:

[T]he most interesting part of the December calendar may be what cases were not on the calendar: the three cases – Trinity Lutheran Church v. Pauley, Murr v. Wisconsin, and Microsoft Corporation v. Baker – that were granted in January of this year, before the death of Justice Antonin Scalia. Because cases are normally slotted for oral argument in at least roughly the order in which they were granted, the delay in scheduling these three cases is unusual. This is particularly true when all three cases have been fully briefed for over two months. Moreover, the court has four days in the December sitting which it will only hear one argument and could thus easily accommodate an additional three arguments. All of the cases on the December calendar were granted … in June; with the release of today’s calendar, all of the cases in which the court granted review before its summer recess have now been scheduled for oral argument except for the three January cases.

The Washington Post PowerPost column accurately called this “a bare-bones calendar.”

The justices are saying through their calendar what they would never say so bluntly: “We cannot perform our duties to decide certain important cases as long as the Republican-controlled Senate deliberately sabotages the Court.”

The senators certainly have a lot of important work to do after the election during the lame duck session.  Fair consideration and a vote on Merrick Garland should be the easiest.

PFAW Foundation

Maricopa County Will Address Long Lines At The Polls

Three years after the Supreme Court's ruling in Shelby County v. Holder, with the Voting Rights Act still a shadow of its former self, voters in Maricopa County, Arizona are getting some relief from the long lines that they faced in the primary.

Citing budget concerns and reduced demand, county election officials reduced the number of polling places available in the March presidential primary from the 200-plus used during the 2012 primary down to just 60. Frustrated voters faced hours-long waits and sites that ran low on ballots, or even ran out of them entirely. The Associated Press reported at the time that votes were still being cast past 10 pm at a third of those sites, and that that the last location wasn't able to close until nearly 1 am, despite polls officially closing at 7 pm. The Arizona Republic called the situation shameful.

Last Thursday, voting rights advocates that subsequently filed suit reached an agreement with Maricopa County, signing off on an official Wait Time Reduction Plan that:

[I]ncludes a formula for projecting turnout at each polling place; delineates roles and responsibilities for county officials, pollworkers, and troubleshooters in reducing wait times; outlines a mechanism to effectively respond to wait times should they exceed 30 minutes; and promotes the use of pollworker and voter hotlines for reports of long lines. For the next four years, the Plan will be shared with a network of community groups for feedback before each primary and general election. The Plan will also be included in each iteration of the pollworker training manual. Additionally, both the County and the Secretary of State will publicize the Plan before each election on various social media platforms.

While Thursday's news was welcome, the problems in Maricopa County might not have happened at all had the County's voting changes been subject to the preclearance that was in place before the Supreme Court gutted the Voting Rights Act, or had Arizona secretary of state Michele Reagan intervened in the VRA's absence.

Hopefully everything will go smoothly in Maricopa County this November. Still, voters there and across the country should be prepared with what they need to know to vote and what they need to do if they have a question or if something goes wrong.

PFAW Foundation

Trump or Clinton Will Be Our President for Four Years, but the Supreme Court Justices They Pick Serve For Life

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What Was Missing From the Debate: Even More Reasons the Supreme Court Is a Crucial Election Issue

This piece originally appeared on the Huffington Post.

In last night’s presidential debate, the candidates discussed several important issues where their choices for the Supreme Court will be critical for Americans’ rights. Whether Hillary Clinton or Donald Trump is elected will decide whether Roe v. Wade is overruled, whether the Court’s historic Obergefell decision on marriage equality is thrown out by a Trump Court, and whether Congress and state legislatures can enact common-sense laws on gun safety and money in politics.

But there are a number of other issues the Supreme Court rules on that underscore why it is crucial that a President Clinton, backed by a Democratic Senate, selects nominees to fill the up-to-four Court vacancies that are likely in the next four years. Specifically:

  • Corporations vs consumers: A Trump Supreme Court would further stack the deck against consumers and in favor of large corporations in the marketplace. Trump justices would make it even harder to bring class actions, often the only way that consumers can effectively seek justice against big corporations. A Trump Supreme Court would almost certainly reverse a recent 5-4 decision or find some other way to rule that the Affordable Care Act is unconstitutional, harming millions of Americans. And a Trump Supreme Court would likely undermine or reverse narrow rulings that have allowed consumer suits against deceptive cigarette labelling in state court and state attorney general action against big banks.
  • Workers’ rights: The current Supreme Court split 4-4 in a case where anti-labor advocates were pushing the Court to overrule an important precedent and eliminate “fair share” fees from non-union members that are crucial for unions to operate. A Trump Supreme Court would break the tie and deal a devastating blow to workers’ ability to organize and operate unions. A Trump Court could also make things even worse than the Roberts Court for workers protected by federal law. One of the judges on Trump’s list of possible Supreme Court justices even tried to rule that a woman who reported sexual harassment on the job could not take legal action when her employer fired her in apparent retaliation.
  • Protecting the environment: Although a President Trump himself is likely to do significant damage to environmental protection efforts, a Trump Supreme Court would do even more. Several important cases concerning the validity of federal rules protecting against mercury and other toxic air pollution and against harmful power plant emissions are pending right now in federal appellate court. A Trump Supreme Court would likely strike down such rules.  A Trump Supreme Court is also likely to remove wetlands almost completely from protection under the Clean Water Act and to make it easier to challenge environmental protection efforts at the federal, state, and local level.
  • Civil and voting rights: A Trump Supreme Court would almost certainly approve restrictive state voter ID and other voting laws that lower courts have found to improperly limit minority voting rights in North Carolina and elsewhere. In fact, one more right-wing justice on the Court would have allowed the discriminatory North Carolina law to take effect in this November’s election. A Trump Supreme Court would also likely approve state redistricting plans like those that have been narrowly struck down as discriminatory, and make it harder for states to undertake nonpartisan redistricting. A Trump Supreme Court could well reverse a recent 5-4 Court ruling and make it impossible to bring housing discrimination lawsuits based on the discriminatory effects of landlord and other practices.
  • Immigration:  The candidates’ discussion last night of their clear differences on immigration policy underlines the importance of who will select Supreme Court justices.  A Trump Supreme Court is likely to uphold a President Trump’s radical immigration policies, particularly if supported by a Republican Congress. Justices like Thomas, Scalia, and Alito have consistently voted to uphold restrictive laws and presidential actions on immigration and on foreign citizens even when the Court majority strikes them down. Adding more right-wing justices would tip the balance decisively in Trump’s favor. So a Trump Supreme Court would likely approve orders by a President Trump mandating mass deportations, imposing ideological litmus tests on immigrants, banning immigration by all Muslims or people from selected countries, and building a wall between the U.S. and Mexico.   

These examples and more are likely products of a Supreme Court to which a President Trump is able to nominate even one or two new justices. With three or more nominations considered likely in the next president’s first term, the consequences to all Americans would be disastrous. And in light of recent threats by Republicans like John McCain to block all Clinton nominees to the High Court, it is crucial that Americans also vote for a Democratic Senate.

PFAW

Trump Wants Another Scalia on the Supreme Court, Which Would Eviscerate LGBT Equality

Donald Trump has used the prospect of Supreme Court nominees as a way to get the support of the far right conservatives who run and fund the Republican Party.  He has promised to outsource the selection to ideological groups like the Federalist Society, and he pleased Republicans with his promise last March to appoint “someone as close to [the late Justice Antonin] Scalia as I could find.”  He repeated this promise in August during an interview with Sean Hannity on Fox News, promising that in his selection, “I want to get as close to Scalia as I can.”  And at the second presidential debate with Hillary Clinton on October 9, he said he was “looking to appoint judges very much in the mold of Justice Scalia.

This is chilling for all Americans across a broad range of communities and issues, and especially for the LGBT community.  It is perhaps appropriate that Donald Trump would model his next justice on Scalia.  The late justice’s unusually venomous, paranoid, divisive, and contemptuous dissents about LGBT equality were at times the judicial equivalent of a Trump campaign rally.

In 1996’s Romer v. Evans, the Court struck down Colorado’s notorious state constitutional amendment that prohibited state and local governments from protecting people from discrimination on the basis of sexual orientation.  “Amendment 2” also eliminated anti-discrimination laws already on the books.  But only one group of people was barred from seeking the rights and protections available to others, and the Court could find no reason for it but animus toward that group.

Justice Scalia’s dissent described Amendment 2 as just “a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.”  But his dissent in this first major civil rights victory for the LGBT community at the high court wasn’t just a legal analysis disagreeing with the majority.  His own animosity, paranoia, and rabble-rousing shone through his words like a beacon … or like Donald Trump’s inflammatory accusations toward populations he and his supporters clearly disdain.  He criticized the majority for concluding that animosity towards “homosexuality” (the term used in the opinion) is wrong, and he defended the right of a majority to pass laws against an unpopular minority based on their moral disapproval of that group.

Even worse was how he saw the struggle of LGB people in Colorado to live their lives openly and free from discrimination.  He characterized this as a “special right.”  And he saw Amendment 2 as a legitimate response by Coloradoans against a small yet wealthy population concentrated in cities and who had “disproportionate political power,” who opposed the traditional morality of the majority, and who had brought their quest for “social endorsement” from New York, San Francisco, LA, and Key West to communities in Colorado.

Scalia's dissent in 2003’s Lawrence v. Texas (striking down “sodomy laws”) was also revealing—and disturbing.  The majority opinion was remarkable in its treatment of gays and lesbians as people, stating what should have been obvious: sexual intimacy for gays and lesbians is just as central to personal autonomy and dignity as it is for heterosexuals.  As a result, it implicates the same fundamental constitutional liberties, and moral condemnation is not a sufficient justification for criminalizing it for same-sex couples.

Scalia would have none of it.  His dissent described the case not as one about the human act of sexual intimacy (and the consequences for individual liberty that flow from that), but as one about “homosexual sodomy.”  He apparently could not conceive that two people of the same sex have sex for the same reasons that two people of the opposite sex do.  And he leapt to the defense of voting majorities who consider sex between two men or two women as immoral to punish those men and women through the criminal code.

A decade later, when the Court struck down the misnamed Defense of Marriage Act in Windsor v. United States, Justice Scalia wrote a separate dissent in which he concluded that the Court lacked jurisdiction to consider the case in the first place.  But then he proceeded to consider the merits anyway.  In what might be considered unnecessarily hyperbolic language, he accused the majority of judging opponents of marriage equality to be “enemies of the human race,” “enem[ies] of decency,” “monsters,”  and “unhinged members of a wild-eyed lynch mob.”  His fury at the majority was palpable.

Similarly, in the Obergefell case, when the Court at last recognized that denying same-sex couples the right to marry violates their constitutional rights, Scalia chose to write a separate dissent.  He wrote that he agreed with the main dissent (written by the Chief Justice), but that he wanted to write separately “to call attention to this Court’s threat to American democracy” by deciding the case as it did.  Calling it a “judicial Putsch,” Scalia slammed the elitism of the Court and wrote that:

to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

Essentially, Scalia was saying the Court cannot legitimately address whether same-sex couples have a constitutional right to marry because they don’t have a constitutional right to marry.  (And yet he and his fellow dissenters did address the question; they just came to a different answer than the majority.)  It seems that any opinion on this issue that didn’t agree with Scalia’s was (in his eyes) illegitimate, just as any election result where Trump loses is (in his eyes) illegitimate.

Scalia’s reasoning was circular, but the result would have been the same if his other dissents had been majority opinions: the preservation of as many methods as possible to use the force of government to marginalize, stigmatize, and harm gays and lesbians.

There will surely be cases in the coming years (and perhaps months) at the Supreme Court that will have a profound influence on the rights not only of LGB people but also of transgender people.  Donald Trump wants justices “as close to Scalia” as possible.  That is a profound threat to every LGBT person in America.

PFAW

Demonstrators Send McCain Message That He Was "Too Little, Too Late" In Denouncing Trump

When Arizona Senator John McCain and Representative Ann Kirkpatrick took the stage on Monday night for their one and only debate, theirs weren't the only voices heard at PBS studios in Phoenix.

People For the American Way joined Planned Parenthood, ProgressNow, and other Arizona activists to send a clear message to Senator McCain: he jumped the Trump ship too little, too late.

In her remarks outside of the debate, Stacey Champion, PFAW's Arizona Campaign Organizer, pointed out just how dedicated to the Trump cause Senator McCain has been:

For over a year, Donald Trump has pushed racist, sexist, and bigoted attacks against far too many Americans -- and through it all, Sen. McCain continued to pledge to vote for him. He's made clear he stands with Trump and the extreme Republican Party, not Arizonans.

Senator McCain has been just as dedicated to blocking Supreme Court nominee Merrick Garland, and for the same disingenuous political reasons. As we noted on Tuesday, McCain’s "straight talk" on the Supreme Court exposes that his obstruction has never been about “the integrity of the Court” as he claimed, but rather about his desire to play politics with judicial nominations.

Shame on Senator McCain for not doing his job, and for waiting far too long to dump Trump.

PFAW

McCain's "Straight Talk" Exposes Real Reason for Blocking SCOTUS Nominee

Arizona Sen. John McCain cultivates an image of being a maverick who is straightforward and honest with people.  That’s why he called his old presidential campaign bus “the Straight Talk Express,” and now he’s running for reelection for his Senate seat.

But in a Monday night debate with his Democratic challenger Rep. Ann Kirkpatrick, he revealed that he’s been anything but straight about why he refuses to consider Supreme Court nominee Merrick Garland.  Instead of the Straight Talk Express, he’s been taking his constituents for a ride on the “Duplicity Express.”

For the past eight months, McCain has justified his obstruction by claiming that the American people should have a voice in who fills the vacancy, via the 2016 presidential election.  He seems not to care that he was in fact muzzling the American people, who made a choice in 2012 to give Barack Obama that responsibility for another four years.  He claimed that “[t]his issue is not about any single nominee – it’s about the integrity of the Court.”

But at the debate, McCain revealed that his obstruction has everything to do with the identity of the nominee, and that he might even work to prevent the Court vacancy from being filled by the next president, should it be Hillary Clinton:

We only have eight Supreme Court justices, and I would much rather have eight Supreme Court justices than a [ninth] justice who is liberal …”

Whoa, what about his claim that this wasn’t about any particular nominee, but about “giving people a voice” so the next president can make the selection?

Imagine if, when McCain himself ran for president in 2008, he had stated that certain presidential powers and obligations last only three years rather than four:

  • In the third presidential debate in 2008, McCain would have answered a question about the Supreme Court by saying “I will find the best people in the world -- in the United States of America who have a history of strict adherence to the Constitution. And not legislating from the bench. Except during my last year in office.
  • In McCain’s concession speech, he would have noted that the American people had “decid[ed] that Sen. Obama and my old friend, Sen. Joe Biden, should have the honor of leading us for the next four years, except when it comes to the Supreme Court, where the American people have decided Obama and Biden should lead us for only three years.

Of course he didn’t say this.  That’s because he recognized then—and surely recognizes now—that the mandate given by the American people is for four years.

No, his refusal to consider Merrick Garland has everything to do with his dislike for the president who nominated him.  As he stated in 2008, McCain wants a justice like Scalia or Clarence Thomas.  He wants a justice who would:

  • Gut the Voting Rights Act and make voter suppression far easier (Shelby County)
  • Give corporations the right to make unlimited expenditures and contributions to influence elections (Citizens United)
  • Let corporations cite their religious beliefs as an excuse to deprive women of birth control (Hobby Lobby)
  • Refuse to recognize the equality and basic humanity of gays and lesbians (Obergefell, Windsor, Lawrence)
  • Find ways to rule in favor of the wealthy and powerful, regardless of what the law actually requires (too many cases to list)

Since Merrick Garland has given no indication he would be a conservative’s dream, Senator McCain is intent on preventing the Senate from even considering his nomination.  And if we have a President Hillary Clinton for the next four years, McCain has already said he prefers an 8-member Court to one with a nominee who he disagrees with.

How’s that for a principled, “straight talking” senator?  Refuse to move on the president’s nomination to the Supreme Court because you say the next president should decide, but what you really mean is don’t confirm this nominee because you’d rather have another Scalia on the bench.

PFAW

Voting Rights Hang in the Balance – 32 Days and Counting

On June 25, 2013, the US Supreme Court dealt a devastating blow to the Voting Rights Act (VRA) in its Shelby County v. Holder decision. Congress has had more than three years since then to restore the VRA’s critical protections aimed at fighting racial discrimination in voting. Indeed, legislation known as the Voting Rights Advancement Act was introduced to develop a new coverage formula and make additional updates to this landmark law. Not only has GOP leadership failed to bring it to a vote, but people like House Judiciary Committee Chairman Bob Goodlatte have outright denied the need to restore the VRA, despite overwhelming evidence to the contrary.

Now there are just 32 days left before the first presidential election in fifty years in which ballots will be cast without full VRA protections.

According to the Brennan Center, 6 of the 14 states with new restrictive voting laws in effect for the first time in a presidential election were previously covered by Section 5 of the VRA, meaning that in the past they had to get prior federal approval for any voting changes.

Nearly Half of New Restrictive Voting Laws in Former Sec 5 States

Even when we have won victories for voting rights, there have been attempts to resurrect voter suppression. Talking Points Memo spoke to voting rights advocates about this disturbing trend:

“You take a step back and it’s really appalling,” said Dale Ho, the director of the ACLU's Voting Rights Project who has been involved in many of the legal challenges to state voting restrictions.

“I mean the Department of Justice and other groups, we have all won the cases ... you would have thought we would have been finished with this whole thing, when, up until Election Day, we have to stay on these people," Ho told TPM.

. . . “There’s two things going on: One is that we have seen court-ordered softening [of voter ID laws] in places like Wisconsin and Texas, and then either foot-dragging or incompetence in carrying it out, which has led to follow-up lawsuits or threats of lawsuits,” said Richard Hasen, a professor at UC-Irvine School of Law who also runs the Election Law Blog. “The other thing that is going on is new shenanigans in response to court rulings. And that’s North Carolina.”

. . . “The trend that you’re definitely seeing is that although you may win in a court, so much of what actually matters to voters depends on implementation of a court victory,” said Jennifer Clark, counsel for the Brennan Center's Democracy Program. “So getting a ruling that blocks or softens a restrictive voting law is really only the first step in making sure that people have the right to vote.”

It's painfully clear that voters are vulnerable this November. But that doesn't mean that anyone should shy away from the ballot box. It just means that we need to be prepared. Our affiliate PFAW Foundation is part of the Election Protection coalition that is preparing voters with what they need to know to vote and what they need to do if they have a question or something goes wrong.

Failing to defend the right to vote is simply not an option.

PFAW

Hundreds Rally to Tell Senate Republicans #DoYourJob

This week marked the start of a second consecutive term of the Supreme Court without a full roster of nine justices. For months, Senate Republicans have refused to hold a confirmation hearing—and, in some cases, to even meet with—President Obama’s Supreme Court nominee Judge Merrick Garland, despite being considered to be perhaps the most qualified Supreme Court nominee in modern history. Members of both parties have applauded his judicious temperament, deep legal knowledge and fair-minded approach to dealing with difficult cases.

To mark the record-breaking 202 days since Garland’s nomination, PFAW and a cadre of allies assembled a crowd of more than 200 people to hold signs calling on Senate Republicans to do their job by holding a hearing and a vote. Speakers at the rally included organizational leaders, such as PFAW’s own executive vice president Marge Baker, as well as the lead plaintiff in the landmark 2015 marriage equality decision, Jim Obergefell. The bipartisan event also featured Republican voters who are fed up with the relentless obstructionism of their leaders in the Senate.  

Because of the Supreme Court vacancy, in recent months a number of critical issues have been left unresolved. Cases pertaining to immigration, affirmative action, and reproductive health have been left hamstrung by a deadlocked court, with cases being sent back down to lower courts because of the inability to break a tie. With the highest judicial body in the United States unable to resolve issues that affect millions of Americans, now more than ever people must tell Republican members of the Senate to #DoYourJob. 

PFAW