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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:
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.
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.
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.
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:
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:
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.
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.
“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.
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.
Members of People For the American Way and Granite State Progress delivered 92 empty chairs to U.S. Senator Kelly Ayotte’s Nashua district office yesterday to symbolize the seats on the federal courts left vacant by Republican obstruction of the president’s judicial nominees. This event took place on the first day of the U.S. Supreme Court’s new term as part of a nationwide Day of Action to call attention to the dozens of unfilled vacancies on the federal courts.
When it comes to partisan filibustering of judicial nominees, Sen. Ayotte has consistently taken her marching orders from Senate Majority Leader Mitch McConnell. She was a willing partner in Republican efforts to filibuster highly qualified nominees to fill circuit and district court vacancies. In late 2013, she even followed McConnell’s party edict to filibuster all three of President Obama’s D.C. Circuit nominees. Senate Republicans admitted that this was not based on any nominee’s qualifications—they argued that Obama should not be able to fill any of the three vacancies on the 11-member court. It was a transparent effort to keep the D.C. Circuit with a majority of very conservative judges. And since Ayotte’s party took over the Senate last year, the number of judicial vacancies has doubled, while the number of those designated emergencies has tripled.
“Now that the Senate is out for recess through the election and the Supreme Court is beginning a new session, it’s official: Sen. Kelly Ayotte hasn’t only aided some of the most far-right Republicans in the Senate by refusing to move forward with hearings and a vote to fill the Supreme Court vacancy, but she’s also stood with obstructionist Republicans in refusing to take action on other federal judicial nominations,” said Linds Jakows, NH Campaign Organizer with People For the American Way. “This is especially troubling since she tries so hard to brand herself as ‘bipartisan and independent.’ She clearly hasn’t listened to voters who know that obstructing justice on the highest courts and paving the way for Trump’s extreme shortlist is neither independent nor bipartisan.”
Yesterday, Massachusetts senator and progressive hero Elizabeth Warren joined PFAW’s Michael Keegan and Marge Baker on a member telebriefing to discuss GOP senators’ unprecedented obstruction of judicial nominations at all levels, including their refusal to give fair consideration to President Obama’s Supreme Court nominee.
Sen. Warren noted on the call that Senate Republicans are now “setting new records for obstruction.” She suggested that they “might want to pull a copy of the Constitution out and take a look,” since the document is “crystal clear” about the Senate’s responsibility to confirm or reject the judges the president nominates. Instead, Warren said, GOP senators are trying to hold the Supreme Court seat open for a President Trump so that he can nominate judges who will bend the laws to suit their interests and the interests of their powerful friends.
Sen. Warren encouraged PFAW members and supporters to ask their senators why they won’t do their jobs and to keep up the pressure. “People For the American Way has done a fantastic job of putting pressure on Senate Republicans to give these judges timely consideration and an up-or-down vote,” she said. “This is a tough fight, but you don't get what you don't fight for.”
Marge Baker reviewed the work that PFAW is doing to make sure Republicans are held accountable at the ballot box on Election Day, including on-the-ground organizing targeting senators who have refused to do their jobs and PFAW’s massive Latinos Vote! campaign, designed to make sure Latino voters are ready to help deliver a progressive victory in November.
You can listen to a recording of the call here:
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.”
“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.”
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.
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.