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

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

June Shows Why November is the Most Important Month for the Supreme Court and our Rights

This piece originally appeared in the Huffington Post.

Before it adjourned for the summer in late June, the Supreme Court issued a series of important decisions, or non-decisions, on affirmative action, immigration, abortion, and other subjects. As with the Court’s actions since last October, and particularly since the death of Justice Scalia in February, the most significant message sent by these developments is this: the elections this November will be absolutely critical to the future of the Court and to all our rights and liberties.

Start with immigration. The Court split 4-4 on the challenge brought by Texas and other states to the president’s executive actions that would have kept families together by shielding undocumented parents of U.S. citizens from deportation and, in total, helped more than 4 million people across the country. The result of the tie vote is that the lower court decision stands without any opinion by the Court, so that a nationwide injunction by a single Texas federal judge against the president’s orders remains in effect. Although the Court doesn’t reveal who voted how in 4-4 splits, it’s almost certain that the four votes against the orders came from Chief Justice Roberts and Justices Alito and Thomas, joined by Justice Kennedy.

The Court was also split 4-4 in another important case in June, concerning whether Indian tribal courts can rule in civil cases (this one involving an assault) against non-tribe members who do business on Indian land. Altogether, the Court issued 4-4 non-decisions in five cases this term, the most in more than 30 years – a direct result of Republican Senators’ unprecedented blockade of the Garland nomination.

In several other important cases in June, Justice Kennedy sided with the Court’s moderates and produced positive decisions. This included a decision striking down an extremely restrictive Texas law that seriously and improperly limited women’s access to abortion by imposing draconian requirements on abortion clinics, as well as a decision approving a University of Texas plan to increase diversity on campus through affirmative action in admissions.

So does this mean that we have nothing to fear even if the Republican blockade of President Obama’s nomination of Judge Merrick Garland to the vacant seat on the Court succeeds and a President Trump places a right-wing conservative on the Court, because Kennedy is voting with the Court’s four moderates? Absolutely not!

First, the immigration non-decision itself shows that Kennedy – the author of Citizens United and part of the 5-4 majorities in Shelby County and Hobby Lobby and so many other cases damaging our democracy and our rights – unfortunately sides all too often with the Court’s far right wing. That was also shown earlier this term when an apparent 4-4 deadlock forced the Court to essentially punt in the Zubik case, leaving the important question of access to contraceptives and employer religious questions in limbo until the Court again has nine members. Whether than ninth seat is filled by President Obama (or by President Clinton if the Republican blockade continues) or by a President Trump is critical.

In addition, the age of the current justices makes clear that there will likely be additional vacancies during the first term of the next president. Three justices will be above 80 during that time, older than the average retirement age for justices. The president who fills these vacancies could easily tip the balance of the Court, not just on the issues the Court dealt with in June, but also on the environment, money and politics, LGBT rights, voting rights, access to justice, protection from government abuse, and many more. And the answer to whether we have a Senate that is willing to do its job and actually hold hearings and vote on nominees, unlike the current Republican Senate that has refused to even hold a hearing for Judge Garland after more than 100 days, will be crucial as well. Election Day 2016 truly is judgment day for the Court and for all of our rights and liberties.

PFAW Foundation

Powerful Sotomayor Dissent Shows Dangers of Supreme Court Ruling on Police Searches

Last Monday, the Supreme Court ruled 5-3 that evidence found by police officers even after they stop someone illegally can still be used if the searches happen after the officers learn of an unrelated outstanding arrest warrant. In a particularly powerful dissent, Justice Sonia Sotomayor explained the dangers of the majority ruling, particularly for people of color.

In the case, Utah v. Strieff, a police officer investigating possible narcotics activity in a house decided to stop Edward Strieff, who left the house, even though there were no reasonable grounds for the stop, which made it illegal. The officer then ran a check on Mr. Strieff, found a warrant for a minor traffic violation, and arrested him on that prior offense. The officer then searched him, found illegal drugs, and charged him accordingly. Even though the Utah Supreme Court found that the evidence should have been suppressed because of the illegal stop, the Supreme Court reversed because of the prior unrelated warrant.

“The court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights,” Sotomayor wrote. “This case allows the police to stop you on the street, demand your identification and check it for outstanding traffic warrants – even If you are doing nothing wrong.” As she continued, “if the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.” Justices Sotomayor and Kagan (who also dissented as did Justice Ginsburg) explained that this danger is far from hypothetical: federal and state databases show more than 7.8 million outstanding warrants, most of which are for minor traffic and other offenses. For example, in Ferguson, Missouri, which has a population of 21,000, there are 16,000 such outstanding warrants.

In a part of her dissent that she wrote only for herself, Sotomayor highlighted the problems that minorities face due to police stops. “For generations,” she explained, “black and brown parents have given their children ‘the talk’ – instructing them never to run down the street, always keep your hands where they can be seen, do not even think of talking back to a stranger – all out of fear of how an officer with a gun will react to them.” She added that people “routinely targeted by the police” are the “canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere,” She continued that “unlawful police stops corrode all our civil liberties and threaten all our lives.” Until the voices of these people “matter, too,” she concluded, “our justice system will continue to be anything but.”

The majority tried to minimize the impact of its ruling, stating that the stop was not a “flagrant” violation or part of a “dragnet” or “systematic or recurrent police misconduct,” but simply an “isolated instance” of an error by a police officer. Time and future cases will tell if Strieff will truly be an isolated case and if the Court will prevent abuse. Much will depend on the future votes of Justice Breyer, who joined the majority in the case, and of course the unfilled vacancy on the Court being held open by Republican obstructionism. But Sotomayor’s strong opinion was a remarkable and important statement that will hopefully help shape the future direction of the Court. As University of Chicago law professor Justin Driver put it, her dissent is “the strongest indication we have yet that the Black Lives Matter movement has made a difference at the Supreme Court--- at least with one justice.”

PFAW

Garland Gets the ABA's Highest Possible Evaluation

The ABA has released its evaluation of Chief Judge Merrick Garland’s qualifications for the Supreme Court, and – surprise! – he earned their highest possible rating:  Every member of the evaluation committee that combed through his record and talked to practitioners around the country agreed: Judge Garland is well qualified to serve on the Supreme Court.

This isn’t a surprise.  We’ve known all along how incredibly well qualified he is.  But the ABA has put online a very detailed explanation of how they reached their conclusion.  For anyone who doubts that this is an excellent nomination, this ABA report is must-reading.

Integrity is essential in any judge, especially on the Supreme Court.  Not surprisingly, the committee heard amazing things about Judge Garland’s integrity.  Some sample quotes from the people the committee reached out to:

  • “Garland’s integrity is off the scales.”
  • “I do not know a finer person than Judge Garland. He is very solid, has the utmost integrity, and is a totally scrupulous, kind and generous person. It is hard to find a nicer person.”

As for his professional competence, the ABA panel was clearly extremely impressed.  Here is how they summarized what they heard from those who know best:

The unanimous consensus of everyone we interviewed was that Judge Garland is superbly competent to serve on the United States Supreme Court. This significant point warrants repeating:  all of the experienced, dedicated, and knowledgeable sitting judges, several former solicitor generals from both political parties, legal scholars from top law schools across the country, and lawyers who have worked with or against the nominee in private practice, government or within the judiciary describe the nominee as outstanding in all respects and cite specific evidence in support of that view.

When you read that paragraph, you can almost hear the ABA members saying “Wow!”

Regardless of judicial or political ideology, everyone wholeheartedly agrees that Judge Garland is supremely well qualified.

Unfortunately, there is one holdout group that is putting politics about all else: Senate Republicans, who still refuse to even hold a confirmation hearing for the nominee.

So while the ABA gives Judge Garland its highest possible rating, Senate Republicans are giving him the finger.  And it’s the American people who lose.

PFAW

Criticism Mounts for Senate GOP Obstruction of Judges

Perhaps the most vital role the United States Constitution assigns to the Senate is the vetting of federal judicial nominees.  An efficient and independent judiciary is vital to those seeking to vindicate their legal rights.  It is also vital to maintaining the separation of powers, which the Founders recognized as a cornerstone of our freedom.

Yet Republicans have done everything in their power to obstruct all of President Obama’s judicial nominees.  Since they’ve taken control of the Senate, Republicans have used their enhanced power to slow down the confirmation rate to historic lows. And by blockading a Supreme Court nominee regardless of his qualifications, they have drawn more attention recently to how they’ve been sabotaging the confirmation process for federal judges at all levels.

Today’s New York Times has a devastating editorial – The Senate’s Confirmation Shutdown – detailing the obstruction.  Beginning with the most prominent example – the refusal to allow President Obama to fill a vacancy on the Supreme Court, regardless of the nominee’s qualifications – the editorial sets out a powerful indictment of how the Senate GOP has used its control of the chamber to keep federal courts around the country understaffed:

 This has been enormously damaging to the district courts, which deal with hundreds of thousands of cases annually, and where backlogs drag out lawsuits and delay justice. It also harms the appeals courts, whose rulings are the final word in nearly all litigation, since the Supreme Court hears only about 75 cases a year.

 How bad has it gotten? Compare the current Senate’s abysmal record with the Democratic-led Senate that President George W. Bush faced in the last two years of his administration. By June 2008, the Senate had approved 46 of Mr. Bush’s judicial nominees; they confirmed a total of 68 by September. In contrast, Mr. McConnell’s Senate has confirmed only 20 of Mr. Obama’s judges since Republicans took control in January 2015, the slowest pace since the early 1950s. Appellate judges accounted for just two of those confirmations, fewer than at any time since the 19th century.

Those twenty confirmations during the past year-and-a-half include two for the Court of International Trade.  The other 18 are for district and circuit courts, fewer than the number of post offices they’ve renamed so far this Congress.

The result is a substantial increase in the number of vacancies since the GOP took over the Senate, with the number of judicial emergencies (vacancies with overwhelming backlogs that impede access to justice) skyrocketing to 2½ times what it was at the beginning of this Congress.  The Times continues:

It would be easy to fill most of these vacancies if the Senate did its job. Currently, 37 of Mr. Obama’s nominees remain bottled up in the Senate Judiciary Committee, 30 of whom are still waiting for their hearing; 17 more have been approved by the committee but have not been scheduled for a full Senate vote. To make matters worse, Senator Charles Grassley of Iowa, chairman of the Judiciary Committee, has said he will shut down the confirmation process, such as it is, before the presidential nominating conventions in July.

Not mincing words, the Times editorial calls this behavior “disgraceful and disgusting,” warning that Senate Republicans “should not be surprised if, come November, the voters choose representatives who actually do their job.”

Indeed, the message Senate Republicans are hearing from Americans is to #DoYourJob.

They could start by holding a hearing for Supreme Court nominee Merrick Garland.  They could also stop delaying committee votes on nominees like Don Schott for the Seventh Circuit (whose vote today was delayed simply because committee Republicans could delay it).  They could hold hearings for qualified circuit court nominees like California’s Lucy Koh for the Ninth Circuit and North Dakota’s Jennifer Kelmetsrud Puhl for the Eighth Circuit, both of whom have the support of their home state senators.  Republicans could also stop blocking hearings for Indiana’s Myra Selby for the Seventh Circuit, Alabama’s Abdul Kallon for the Eleventh Circuit, Kentucky’s Lisabeth Tabor Hughes for the Sixth Circuit, and Pennsylvania’s Rebecca Haywood for the Third Circuit, all of whom are currently facing obstruction by Republican home state senators who simply want to prevent President Obama from filling these vacancies.

Whether it’s the Supreme Court, the circuit courts, or the district courts, Senate Republicans are keeping as many vacancies open for as long as possible, so that they can be filled by a President Donald Trump, whose racist comments about judicial qualifications and whose attacks on judicial independence should, in a sane party, disqualify him from being given the power to nominate judges at all.

PFAW

New Campaign Slogan for Pat Toomey?

Last month, Pennsylvania Sen. Pat Toomey and Senate Majority Leader Mitch McConnell put on a great dog-and-pony show to make it look like Toomey was working to get his home-state nominees confirmed.  This afternoon, Toomey had a chance to really support those nominees, and he was – surprise! – missing in action.

Sen. Elizabeth Warren asked for unanimous consent for the Senate to vote to confirm all 15 federal district court nominees pending on the Senate floor.  Most have been waiting for more than four months since committee approval for a floor vote, including two from Pennsylvania who were jointly recommended by Sens. Toomey and Bob Casey.  In fact, six of the nominees have been waiting for a vote since last year!

McConnell objected.  Toomey was nowhere to be found to stand up for his nominees, who would fill vacancies that have been open since August and September of 2013.

Then Sen. Warren sought unanimous consent to vote on a smaller list, one that still included the Pennsylvania nominees.  And once again, McConnell objected, and Toomey was nowhere to be found.

(Warren then tried with only four non-Pennsylvania nominees, then only one, but her efforts were nevertheless shot down, this time by Republican Orrin Hatch.)

This would have been a great opportunity for Toomey to stand up to his party boss and demand a vote for his nominees, who were fully vetted and approved unanimously by the Judiciary Committee way back in January.  As a member of the majority party, Toomey’s requests would presumably carry more weight with McConnell than Casey’s.  But we’ll never know, because Toomey would not publicly stand up against McConnell.

This is sadly reminiscent of Toomey’s non-supportive “support” for Pennsylvanian Phil Restrepo for the Third Circuit, when Toomey cooperated with GOP leadership in their efforts to slow down the confirmation process as much as possible.

And of course, Toomey quickly obeyed when McConnell demanded that his fellow Republicans refuse to consider President Obama’s nomination of Merrick Garland to the Supreme Court.  This unprecedented act of obstruction has significant harmful consequences, as described in a recent report by our affiliate People For the American Way Foundation and the Constitutional Accountability Center.

So perhaps Toomey could adopt this as a campaign slogan:

Pat Toomey:  Putting Pennsylvania first  (Except when his Washington DC party boss tells him not to)

PFAW

While Trump Makes Racist Attacks On Judge, GOP Holds a Supreme Court Seat for Him to Fill?

This piece originally appeared on the Huffington Post.

It was both completely in character and shamefully beyond the pale when Donald Trump accused Judge Gonzalo Curiel, who is presiding over two lawsuits against Trump University, of having an “inherent conflict of interest” in the cases because of the judge’s Mexican heritage. On Sunday he extended that charge to Muslim judges, who he also suspects would be unable to remain unbiased. If there was a shred of doubt remaining on the question of whether Donald Trump is fit to make judicial nominations before this attack, that debate is now over. Even GOP senators arespeaking out against Trump’s remarks. But in a contortion act that defies logic, those same senators continue to go to extraordinary lengths to hold open the vacant Supreme Court seat for the very person whose approach to judicial matters they are condemning.

GOP leaders rushed to denounce Trump’s remarks about Judge Curiel, with Republican senators including Kelly Ayotte, Jeff Flake, Rob Portman, and Mitch McConnell speaking out against his comments and House Speaker Paul Ryan calling them “out of left field” even though even a casual observer knows they were coming right from home plate for the past year. Trump has been consistent in his baseless attacks on entire communities since the first day of his campaign, when he smeared Mexican immigrants as rapists and drug dealers. And if some in the GOP are (rightly) condemning Trump’s vision of a justice system in which some judges are prohibited from doing their jobs because of their ethnic background, why are they going to extraordinary lengths to put him in the driver’s seat of our nominating process?

GOP senators are still doing everything they can to block President Obama from filling the Supreme Court vacancy. Rather than follow the Constitution and give fair consideration to President Obama’s extraordinarily qualified and respected nominee, GOP senators are running a campaign of unprecedented obstruction in order to allow Trump to make the Supreme Court nomination instead.

Let’s be clear: Trump had already provided countless reasons to call into question his fitness to nominate judges. This is a man who supports killing the family members of terrorists and wants to “open up” libel laws so he can go after journalists. That he’s now implying whole swaths of people are not fit for the federal bench is one of the most disturbing examples yet of Trump’s contempt for the independence of the judiciary and for Americans different from him. It goes against the most fundamental values of our country, and it is Exhibit A of why he should never be the person nominating judges at the Supreme Court or any level.

It’s no wonder Americans are worried about the prospect of Donald Trump making judicial nominations. Even before his attack on Judge Curiel, a recent poll found that the majority of Americans don’t trust Trump to fill the Supreme Court vacancy, and they’re none too pleased with the senators obstructing President Obama’s nominee.Half of voters say they are “less likely to vote for a senator who opposed having confirmation hearings” for Judge Merrick Garland. For Republican senators in tight reelection battles, their unwillingness to do their jobs is increasingly and rightfully becoming a liability with voters.

The fact that GOP senators are flat-out refusing to do their jobs on the Supreme Court was already an outrage. That they are now working to hold the seat open for a man who thinks some judges can’t do their jobs because of their ethnic background or religion is unconscionable and should be, quite frankly, embarrassing to all Republicans. GOP leaders are in a position of both condemning Trump’s approach to judicial issues and working to make sure he’s the one to make lifetime judicial appointments. Make sense? It doesn’t to me, either.

The choice is now crystal clear. It’s time to call the question and give Merrick Garland a vote.  

PFAW

More and More Agree: Eight is NOT Enough for the Supreme Court

Over the last few days, both the Washington Post and prominent constitutional law professor Laurence Tribe have joined the growing chorus of voices, including Republican as well as Democratic judges, making clear that eight justices are NOT enough for the nine-member Supreme Court, and that the continuing vacancy caused by Senate Republicans’ unprecedented refusal to even consider President Obama’s nomination of Judge Merrick Garland for the vacant Court seat is unconscionable. As the Post put it, the continued vacancy has required the Court to “punt, duck, dodge and weave around contentious issues,” creating “dysfunction.” These problems are documented in more detail in the recent report by PFAW Foundation and the Constitutional Accountability Center, “Material Harm to our System of Justice: the Consequences of an Eight-Member Supreme Court.”

As the report explains, the continuing vacancy has already produced several 4-4 splits on the Court, leaving the contested lower court decision in place but setting no national precedent. In one situation, the result was that the Court could not resolve conflicting interpretations of federal law on loan discrimination in different lower courts, causing confusion and different rules for different people around the country. Specifically, as a result of this Supreme Court 4-4 split, people in some states can be required to get their spouse to co-sign a bank loan, while in other states, some right next door, that requirement is illegal.

In addition to several 4-4 splits, the continued vacancy has caused the eight-member Court to effectively punt several important cases for later review by a full Court, again leaving uncertainty and confusion as a result. For example, in the Zubik case concerning whether religious employers can effectively deny to their employees contraceptive coverage required by the ACA because of religious objections, the Court vacated conflicting lower court decisions and suggested that the government and the employers try to find a compromise and then go back to the lower courts, and the Supreme Court, if necessary. The continued litigation by some religious employers makes clear that future resolution by a nine-member Court will be necessary. But in the meantime, uncertainty about these important rights remains. As the report explains, the continued vacancy also appears to have decreased the number of important cases the Court has agreed to review next term starting in October, and makes it difficult for the Court to issue important temporary stay decisions in divisive cases where decisions must be made quickly, as in cases seeking temporary halts of executions or new election rules.

As a result, both Republican and Democratic-appointed judges and justices, including Chief Justice Roberts, Retired Justice John Paul Stevens, and the late Justice Scalia himself, have explained that having a full complement of nine members is important for a fully-functioning Court. Justice Ruth Bader Ginsburg agreed last week, commenting publicly that “eight is not a good number” for the Court.

And as the Post also explained, the Senate Republican leaders that are responsible for this problem “are doing more than ever to discredit themselves,” claiming that their blockade is about the non-existent “principle” that a vacancy that arises in an election year should be filled by the next president, contrary to history and the Constitution, while at the same time claiming that Republicans could find no “worse nominee” than Judge Garland. This is despite the fact that these very same Republican leaders, including Senate Majority Leader Mitch McConnell, have agreed that Judge Garland is “well-qualified.”  As the Post concludes, this admission should “end the discussion”: Judge Garland should receive a hearing and should be confirmed. But if the Senate Republican blockade continues, the eight-member Court will only cause further harm to our system of justice.

PFAW

Report by Elizabeth Warren Slams GOP Obstruction of Nominees

Since Senate Judiciary Chair Chuck Grassley is making sure that the committee he runs completely ignores Merrick Garland’s Supreme Court nomination, one might think that he’s using the extra time to at least process the president’s many circuit and district nominees. Not!

While Grassley and Senate Majority Leader Mitch McConnell’s brazen and unprecedented refusal to consider Garland has drawn a great deal of attention,  PFAW has long reported on how this obstruction, far from being unique to Garland, is an extension of how the Senate GOP has treated President Obama’s lower court nominees for most of his time in office.

Today, Sen. Elizabeth Warren has made a tremendous contribution to the national conversation, issuing a new report entitled Going to Extremes: The Supreme Court and Senate Republicans’ Unprecedented Record of Obstruction of President Obama’s Nominees.  The senator covers how Republicans have worked hard not to thoughtfully vet both judicial and executive branch nominations, but to slow down their confirmations as much as possible, or block their confirmations altogether.

She uses Senate Republicans’ own statements about the Garland nomination to show the disingenuousness of the rationales for obstruction they present to the public and demonstrates that their obstruction is unprecedented.  And with a prosecutor’s efficiency, she makes the powerful case that the GOP has consistently and deliberately slow-walked or blocked altogether the president’s circuit and district court nominees, as well as his executive branch nominees.

Supported with facts and figures from the nonpartisan Congressional Research Service, Sen. Warren’s new report is a devastating indictment of a political party that has misused the confirmation process to prevent the executive and judicial branches from functioning effectively to protect consumers and workers, hold large corporations accountable, and protect equality.

As she notes in the report’s conclusion:

From the moment the Supreme Court vacancy arose, Senate Republicans linked arms in an attempt to deny President Obama the full authority of his office in the final year of his presidency. They cynically claimed they wish to “let the people decide,” but the people have already decided. Twice. They elected President Obama in 2008 by nine million votes and re-elected him in 2012 by five million votes. Republicans’ statements over many weeks have made clear that their true interest is what it has been for the past eight years: to block and hinder President Obama at every turn, dragging out or blocking outright the confirmation of nominees across the government and the courts.

As the report shows, the GOP has a shameful record of obstruction going back to President Obama’s first days in office.  The unprecedented blockade against Garland is only the apex of a pattern that has gone on for years.

PFAW