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.
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.”
The stubborn refusal by Senate Republicans to consider the nomination of Judge Merrick Garland for the Supreme Court has caused the Supreme Court to deliberate with only 8, rather than its full complement of 9 justices. Senators have a constitutional responsibility to give fair consideration to the president’s nominee to fill a vacancy on the Supreme Court, yet they continue to neglect this responsibility as it has been 100 days since President Obama nominated Judge Garland to fill the seat left vacant by Justice Scalia’s death earlier this year.
On Thursday, top lawyers from 44 United States companies, such as Nike and Qualcomm, released a letter calling on the Senate Judiciary Committee to move forward on this nomination, emphasizing that “[t]he business community has a great interest in avoiding the legal uncertainty that could result if the vacancy remains unfilled for an extended period of time.”
Bloomberg reports: “The signers of the letter include Michael Fricklas of Viacom; Hilary Krane of Nike; David Ellen of Cablevision Systems Corp.; Ivan Fong of 3M Co.; Donald J. Rosenberg of Qualcomm Inc.; Lori Schechter of McKesson Corp.; and Audrey Strauss of Alcoa Inc. The letter was spearheaded by Jonathan Schwartz, general counsel of Univision Communications Inc.”
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.
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.
Senate Majority Leader Mitch McConnell made clear this week not only that he wants Donald Trump to be president, but that the main reason he wants Trump to be president is so that he will be the one picking Supreme Court justices.
The Republican leader told radio host Hugh Hewitt that “the Supreme Court is the biggest thing the next president will deal with.” He continued, “I made sure of that by making sure that this president doesn’t get to pick this nominee and get them confirmed on the way out the door. But that alone, that issue alone will define much of what America is like for the next generation.”
According to McConnell, “That issue alone is enough to convince me to support Donald Trump.”
Senate Judiciary Committee Chairman Chuck Grassley also recently expressed his support for Trump selecting a Supreme Court justice to fill the vacancy left by the death of Justice Antonin Scalia. He told the Des Moines Register, “Based upon the type of people he’d be looking for, I think I would expect the right type of people to be nominated by him to the Supreme Court.”
Yesterday, Trump made clear that he applies a racial test when assessing the impartiality of judges, telling The Wall Street Journal that Judge Gonzalo Curiel should not preside over a fraud case involving his Trump University scam real estate seminars case because the federal judge has “an absolute conflict.”
According to Trump, Curiel’s “Mexican heritage” is “an inherent conflict of interest” because “I’m building a wall.” Curiel, whose parents are from Mexico, was born in Indiana.
Trump’s pronouncement raises a serious question for the Republicans who are engaging in an unprecedented effort to stop President Obama’s Supreme Court nominee, Merrick Garland, from so much as getting a Senate hearing, with the apparent goal to keep the seat open for a President Trump to fill.
Trump claims that a judge’s heritage is a conflict of interest because it means that he will be biased against Trump.
During every president’s term, numerous cases involving their policies or interpretations of the law are argued before the Supreme Court. If Trump believes a district court judge’s heritage creates an unfair bias against him, then one can assume that he thinks this same bias would exist in a judge on the highest court.
Approximately 10 percent of our country’s population is of Mexican heritage, and Donald Trump’s racial test would exclude every single one of them from the judiciary. Perhaps this explains why the list of potential Supreme Court nominees that Trump released last month was 100% white.
McConnell, Grassley and other Republicans obstructing President Obama’s Supreme Court nominee as they hope for a Republican victory in November now need to answer whether or not they too would apply Donald Trump’s racial test to the court.
Perhaps the most important thing about the Supreme Court this May was what it didn’t decide. As Justice Ginsburg candidly admitted to a group of lawyers, having only eight justices hamstrings the Court by making it more difficult to decide closely-divided cases. Far from suggesting that the Court’s importance has diminished, however, the Court’s non-decisions in May show just how important the Court continues to be, particularly in this fall’s elections.
With only eight justices, the Court issued two non-decision decisions in May that effectively punted important controversies for a future, fully-staffed Court to decide, but leaving significant confusion and uncertainty in the meantime. In the Zubik case, rather than splitting 4-4, the Court issued a brief unsigned opinion and vacated conflicting rulings in the lower courts on whether the Religious Freedom Restoration Act (RFRA) allows religious nonprofit colleges and other employers to effectively take away Affordable Care Act-required contraceptive coverage from their female employees. The Court directed that the lower courts should give the government and the objecting employers another opportunity to try to resolve the issue, and then decide the cases again if necessary, with Supreme Court review after that if needed. While resolving such controversies voluntarily is a desirable goal, it is clear from the prolonged litigation that at least some religious employers will not agree to any resolution under which its employees will get contraceptive insurance coverage from its insurer. The result is uncertainty for millions of women about their contraceptive coverage, as well as for religious employers about their claims.
The same day that the Court effectively punted in Zubik, it also issued a non-decision decision in the Spokeo case. In that case, the Court was to decide whether Congress may give individuals the right to sue for damages in federal court, so that they have “standing” to sue, when a federal law has been violated even in the absence of other actual injury. This is an important issue since it affects the ability of Congress and individuals to hold companies accountable when they violate federal law. In a 6-2 decision, the Court did not resolve the question of whether the individual in Spokeoactually had standing, but instead suggested that the lower court’s analysis was “incomplete,” and sent the case back to that court to reconsider the issue, without taking any position on the key issue presented by the case. This important question will need to be revisited by the Court again, after it again has nine justices.
During May, the Court accepted only three new cases for review starting in October, making a total of eight since Justice Scalia’s death. Legal commentators have suggested that the decisions not to take up more significant cases for review is another result of an eight-justice court, with the remaining justices concerned about their ability to resolve controversial cases — again creating uncertainty about people’s rights.
Finally, non-decisions in three major pending cases in May, concerning affirmative action, reproductive rights, and immigration, will almost certainly lead to some kind of decisions in these cases in June, as the Court completes its work this term, with significant consequences for millions of Americans. Some decision on the merits is most likely in the Fisher case concerning affirmative action in college admissions, since Justice Kagan’s recusal from the case leaves the Court with seven members. The precise result will likely depend on swing Justice Anthony Kennedy, and may affect millions of minority students across America.
4-4 ties are quite possible in some of the remaining cases, including Whole Women’s Health, which concerns the constitutionality of extreme and unnecessary restrictions on abortion clinics in Texas. Advocates strongly believe the Court should resolve this case in favor of reproductive rights, which would protect the rights of millions, but the Court is clearly divided. Although not setting any national precedent, a simple tie vote in this case would leave the lower court opinions standing, which could effectively deprive all but the richest women in Texas of the ability to choose abortion. The Court will clearly be taking significant action soon.
In the meantime, Senate Republican leaders have refused to budge on their unprecedented blockade of the President’s nomination of Judge Merrick Garland to fill the vacant seat on the court, refusing even to grant him a hearing. It is becoming increasingly clear that they are trying to hold open that vacancy to be filled by, they hope, a President Trump. Trump’s list of potential nominees (also released in May) includes people who have called Roe v. Wade the “worst abomination in the history of constitutional law” and two others who voted to make their appellate court the only one in the country that sided with religious nonprofits’ efforts to deprive female employees of birth control.
To Senate Republican leaders and their right-wing allies, the stakes are clear. They will do everything they can to ensure that the current Court vacancy, and the additional vacancies very likely to arise in the next president’s term, are filled by far-right justices who will vote to overturn Roe v. Wade, limit contraceptive coverage, and set the clock back on civil rights and liberties for America. That is why continuing efforts to push Senate Republican leaders to take action on President Obama’s nomination is so important, and why the Supreme Court is such a critical issue in this fall’s elections.
The Supreme Court issued a brief unsigned opinion today in the Zubik case, and vacated the conflicting opinions on whether the Religious Freedom Restoration Act (RFRA) allows religious nonprofits to effectively take away Affordable Care Act-required contraceptive coverage from their employees. The result is to punt the issue away until the Court again has nine justices, reinforcing again why the Court must have a full complement of justices and why the Supreme Court is such a critical issue in the 2016 elections.
Before the Court in Zubik were a series of cases in which federal appeals courts had ruled that objections by religious colleges and other employers to contraceptive coverage had already been accommodated by the Administration by making clear that the coverage was to be provided by insurers and not involve any employer who expressed a religious objection, so that RFRA was not violated and coverage should continue. The more conservative justices on the Court, including Justice Kennedy, were nonetheless troubled by the claim that the religious employers were still involved in providing the coverage, at least by specifically having to provide notice to object to it. So the Court ordered supplemental briefing in the case on whether it was possible to continue to provide the coverage with no involvement by the employers, other than providing insurance that did not include contraceptive coverage.
In its opinion today, the Court vacated the decisions being considered in Zubik and directed that, on remand, the lower courts should give the government and the objecting employers the opportunity to try to resolve the issue, in light of what the Court characterized as the possibility, as expressed in the supplemental briefs, of ensuring that the coverage can be provided without involving the employers. If needed, the lower courts would then issue opinions on the issue, which could be reviewed by the Supreme Court. Interestingly, the Court also gave the same treatment to the single appellate court opinion that ruled in favor of religious employers and was not included in the Zubik case, vacating that decision as well to be reconsidered again if necessary. The Court specifically made clear that while this process is going forward, women covered by the insurance plans should “receive full and equal health coverage, including contraceptive coverage," and that the “Government may not impose taxes or penalties” on the religious employers for failing to provide the formal notice of their religious objection which they had complained about in their lawsuits. In other words, no harm should occur to any of the parties while the government and the employers try to work out the problem and litigate it in the lower courts if necessary. A separate concurrence by Justices Sotomayor and Ginsburg further emphasized that the decision does not resolve either way the substantive issues, including whether the religious employers do incur a “substantial burden” that triggers RFRA.
While both sides can therefore claim some temporary victory from the Court’s ruling, the clear loser is our American justice system. A crucial legal issue that clearly divides the justices on the Court concerning the application and meaning of RFRA and contraceptive rights remains unresolved. Despite the apparent optimism in the Court’s brief opinion, it seems unlikely that every religious employer in the country will agree to any accommodation under which its employees will still get contraceptive coverage, so that the issue is very likely to remain unresolved and return to the Supreme Court again. Without nine justices on the Court, it seems clear that the Court will not be able to resolve the issue, just as it could not at present. That makes the issue of filling the current vacancy on the Court, and who will be the president that fills future vacancies on our closely divided Supreme Court, extremely crucial now and in November.
Several days ago, USA Today reported on some comments made by Senator Patrick Leahy about the Senate GOP’s refusal to consider Merrick Garland’s nomination to the Supreme Court. Judiciary Committee chairman Chuck Grassley has fallen in line behind the order of his boss, Mitch McConnell, and the demands of far-right extremist groups like the Judicial Crisis Network, who make wildly untrue claims about Judge Garland’s record. GOP senators’ decision to hide behind those outside attacks and refuse to give Judge Garland a chance to defend himself is “sleazy,” Leahy said. He also urged Grassley to show some independence from partisan interests, as Leahy did when he chaired the Judiciary Committee in parts of George W. Bush’s presidency.
Conservative Ed Whelan challenged Leahy’s positive characterization of his chairmanship on the National Review website in a piece he called “Patrick Leahy (D-Sleaze).” Whelan criticized then-Chairman Leahy for not holding hearings on a number of Bush’s nominees. One might think the committee was letting vacancies pile up around the country: that Leahy was fiddling while the American court system burned. In fact, at this point in Bush’s last two years, the Democratic-controlled Senate had already confirmed 45 circuit and district court nominees, while the current Senate has confirmed a mere 17. During the entire two years of the 110th Congress, the Senate confirmed 68 judges, a number that Chuck Grassley and Mitch McConnell show no interest in even trying to match.
In fact, it is Grassley and McConnell who are fiddling. When the current Congress began, there were 40 circuit and district court vacancies, a number that has increased to 74 due to GOP inaction. (If you include the Court of International Trade, the increase is from 43 to 78.) In the same period, judicial emergencies have nearly tripled, jumping from 12 to 34 on April 14 (a change in how the Administrative Office of U.S. Courts weights cases went into effect the next day, affecting the number of emergencies and thereby complicating comparisons after that date). In contrast, vacancies and emergencies went down in 2007-2008 because Democrats processed judicial nominations in a responsible manner. Leahy also chaired the committee for 17 months in 2001-2002, during which the Democratic-controlled Senate confirmed 100 of Bush’s judicial nominees. Circuit and district court vacancies went down during that period from 109 to 60. When it comes to taking seriously their constitutional responsibility to make sure our federal judiciary is sufficiently staffed, the difference between the two parties could hardly be starker.
The contrast is not limited to the confirmation of judicial nominees. In Bush’s last two years, Sen. Leahy held 22 nominations hearings, including one as late as September 23, 2008 … just a few weeks before the presidential election to replace the term-limited George Bush. Chairman Grassley has scheduled a confirmation hearing for April 20, the first since January, only the 13th of the current Congress, and he has suggested that he may shut the process down in July.
With 33 circuit and district court nominees in committee, and only five of them having had a hearing (but not until April 20), talk of such an early shutdown is obscene. Seven of the nominees who have yet to be granted a hearing are circuit court nominees, most of them nominated more than two months ago. Three of the circuit court nominees already have their “blue slips” from their home state senators. The fact that this is an election year should not prevent a hearing for these circuit court nominees: When President Bush nominated Steven Agee to the Fourth Circuit in March of 2008, Sen. Leahy scheduled a hearing seven weeks later, and a committee vote just two weeks after that.
And certainly no one could believably question Leahy’s fairness. When President Obama took office, Chairman Leahy maintained the same rules and practices he had used with Bush’s nominees. For instance, as under Bush, he opted to require the “blue slip” approval of both home-state senators before holding a hearing on a nominee, something not in the committee rules but rather a prerogative of the chair. This led to a number of highly qualified Obama nominees being denied a chance to publicly respond to the often unfair and inaccurate attacks being made against them by GOP senators. Other times, the Republican senators gave no public reason for their opposition, yet still used Leahy's blue slip practices to deny hearings to targeted nominees. He even allowed Kansas’s GOP senators to change their mind after a hearing and, at their request, did not allow a scheduled committee vote on Tenth Circuit nominee Steve Six to take place. The committee records are filled with Leahy’s sharp criticism of how qualified nominees were being denied hearings this way, including ones strongly supported by their one Democratic home state senator, including then-Majority Leader Harry Reid. Nevertheless, he did not change his blue slip practice as he could have done unilaterally.
Whelan also criticizes Senator Leahy as “sleazy” for not getting controversial Fifth Circuit nominee Leslie Southwick confirmed quickly enough and then for opposing his nomination altogether. As chairman, Sen. Leahy could have simply chosen not to give him a hearing. In fact, at the confirmation hearing, Sen. Hatch specifically thanked Chairman Leahy for scheduling it over the criticism from “far left groups.” Giving a nominee an opportunity to address senators’ concerns and defend their record in a public forum is not “sleazy.”
As Sen. Leahy pointed out last week, what’s “sleazy” is the way that the Republican-controlled Senate is mistreating the president’s Supreme Court nominee. And while well-financed far-right groups are working overtime to keep GOP senators in line, two thirds of Americans are rejecting that position and support a hearing for Chief Judge Garland. Chairman Grassley would do well to listen to the American people.
As thousands of activists from around the country head to Washington, DC for the Democracy Awakening, a weekend of marches, rallies, workshops, lobby visits, and – for some – nonviolent civil disobedience, PFAW hosted a member telebriefing Thursday about the upcoming mobilization. Through the Democracy Awakening, Americans are demanding that Congress take action to fix our democracy, from protecting voting rights to getting big money out of politics to giving the president’s Supreme Court nominee fair consideration.
“These are all connected issues,” PFAW Executive Vice President Marge Baker said on the call. She emphasized that auctioning off democracy “to the highest bidder,” suppressing the vote, or obstructing justice through Republican senators’ “absurd and totally indefensible” position that President Obama’s Supreme Court nominee shouldn’t be given fair consideration are all threats to our democracy.
“We have to take back the engines of our government for the American people,” Baker said.
PFAW Government By the People Campaign Manager Rio Tazewell outlined the schedule for the weekend and noted that even people who can’t travel to DC can still take action in their own towns through letters to the editor, contacting elected representatives, and taking action on social media.
You can listen to the full telebriefing below, and visit www.democracyawakening.org for more information: