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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.
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.
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.”
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:
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.
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.
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:
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.