On March 16, President Obama nominated Chief Judge Merrick Garland of the D.C. Circuit Court of Appeals to fill the vacant seat on the US Supreme Court. His background and record, and the bipartisan acclaim he has previously received, make clear that he is an extremely well qualified jurist who would ably serve as a Supreme Court justice, and that there is absolutely no basis but pure politics for the refusal of most Republican senators to even consider his nomination.
Garland, 63, was born in Chicago. His father ran a small advertising firm out of the family’s home and his mother coordinated volunteer services for Chicago’s Council for Jewish Elderly. His grandparents were refugees from anti-semitism in Russia. After graduating with honors from Harvard College and Law School, Garland went on to clerk for appellate court judge Henry Friendly and noted Supreme Court Justice William Brennan. He then worked briefly as special assistant to Attorney General Benjamin Civiletti during the Carter Administration and then as an associate and a partner at the Washington law firm of Arnold & Porter, where he specialized in corporate litigation. In 1989 he became an Assistant US Attorney in Washington and, after a brief return to Arnold & Porter, joined the Clinton Administration as deputy assistant attorney general in the criminal division of the Justice Department and then as principal assistant deputy attorney general. In that capacity, he supervised the investigation and prosecution of a number of key domestic terrorism cases, including the Oklahoma City bombing and the Unabomber case.
Garland became a judge on the DC Circuit Court of Appeals in 1997, winning bipartisan praise from lawyers, judges, and senators ranging from Edward Kennedy to Orrin Hatch. During most of the 19 years he has been on the bench, Garland has also tutored poor children at a DC elementary school. He became chief judge in 2013.
Garland has continued to win bipartisan and both liberal and conservative praise during his service on the court of appeals. Most of his opinions are for unanimous three-judge panels, bringing together both conservative and liberal judges. As now-Chief Justice Roberts has commented, however, when Judge Garland disagrees with you as a judge, “you know you’re in a difficult area.” (In the particular case Roberts was referring to, Garland dissented from a ruling by Roberts that limited the ability of whistleblowers to bring lawsuits to vindicate fraud against the government.) Garland is a clear and careful writer, who is appropriately deferential to Congressional statutes, agency rules, and past precedent. Although he has a reputation for tending to favor the government in criminal law and terrorism cases, he has not hesitated to rule against the government where it oversteps its authority in such matters. For example, he ruled in one case (In re Sealed Case) that a lower court made a mistake and had to order the prosecution to look for and disclose to a defendant any evidence that would tend to show innocence. In another (Parhart v Gates), he ruled that the Combatant Status Review tribunal had improperly relied on hearsay evidence to indefinitely detain someone as an enemy combatant. He has a generally positive record in such areas as labor law, environmental law, and individual civil rights. Overall, Garland has more federal court experience than any Supreme Court nominee in history.
Despite Judge Garland’s stellar record, Republican leadership has continued to insist that his nomination should not be considered, reviewed, and voted on at all by the Senate, with Republican Majority Leader McConnell refusing even to meet with Judge Garland. Even conservative columnist George Will has recognized that the only reason for this obstuctionist blockade is political, with the hope that a Republican president elected in November (Donald Trump?) will be able to fill the vacancy. Despite claims to the contrary, Democrats have not stooped to such political gamesmanship, as is best shown by their decision to confirm Reagan Supreme Court nominee Anthony Kennedy when they controlled the Senate in presidential election year 1988. No, Judge Garland won’t be the far-right conservative that Republicans hope to get from a President Trump or Cruz, but that is simply no reason for Republican senators to refuse to do their job and at least act on the nomination. Cracks have already begun to appear in the Republican blockade, with Sen. Mark Kirk stating that Garland should receive a hearing and a vote. With continued pressure from Americans across the country, Judge Garland will hopefully receive the hearing and the vote that the Senate owes to him, the Supreme Court, the Constitution, and the American people.
One day after President Obama nominated Judge Merrick Garland to serve on the Supreme Court, PFAW held a telebriefing for members about the extraordinarily qualified nominee and the GOP’s unprecedented obstruction campaign aimed at bringing the process of filling the vacancy to a halt.
PFAW’s Michael Keegan, Marge Baker, Elliot Mincberg, Drew Courtney, and Brian Tashman discussed the Republican blockade, Garland’s record as a judge, and what’s at stake in the confirmation fight for our constitutional rights and liberties.
“This nominee, when confirmed, will shift the balance” of a Supreme Court that has been one of the “most conservative Courts in decades,” Baker said. PFAW released a report last year, “Judgment Day 2016,” reviewing many of the 5-4 decisions that have had an enormous impact on the daily lives of Americans and highlighting how the composition of the Court is a key issue in 2016 and beyond.
Speakers outlined why it’s critical that Senate Republicans do their jobs and give Judge Garland the fair consideration that he deserves. Tashman noted that the Right’s encouragement of the GOP obstruction is nothing more than an “effort to delegitimize the president and play politics with the Court.”
You can listen to the full telebriefing here:
Two days after the Supreme Court heard oral arguments in a case about laws that use unnecessary regulations to shut down abortion clinics, PFAW held a member telebriefing on the two cases that may be the most significant for women’s reproductive rights in decades. The second case, which is about access to birth control and is being called “Hobby Lobby Part Two,” will be argued at the Supreme Court later this month.
On the call, actress and advocate Kathleen Turner, PFAW’s Marge Baker, Elliot Mincberg, and Drew Courtney, and the Center for Reproductive Rights’ Kelly Baden discussed what’s at stake in these cases – Whole Woman’s Health v. Hellerstedt and Zubik v. Burwell – as well as the future of women’s reproductive rights.
Turner pointed out that these cases underscore the importance of our courts in keeping unconstitutional attacks in check and protecting women’s liberty and bodily autonomy. Baden went on to highlight the ways in which these attacks harm low-income and rural women in particular, who are least able to travel long distances and pay high price tags for abortion care.
You can listen to the full telebriefing here:
As President Obama prepares to put forward a nominee to fill the Supreme Court vacancy, GOP senators have taken a stance of unprecedented obstruction – refusing to even consider any nominee, regardless of their qualifications.
Yesterday People For the American Way hosted a member telebriefing calling out the ways in which Senate Republicans are irresponsibly abandoning their constitutional obligations to give fair consideration to Supreme Court nominees. Executive Vice President Marge Baker and Senior Fellow Elliot Mincberg discussed the crisis of constitutional proportions that Senate Republicans are leading us towards, and what activists can do to push senators to stop playing political games and do their jobs.
Listen to the telebriefing here:
Senate Republicans took their partisan obstructionism to an unprecedented, wildly irresponsible level this month – they are flat out refusing to even consider any Supreme Court nominee put forth by President Obama. It’s a blatantly political move that the GOP is trying to justify with nonsense explanations, like “we’ve never confirmed a Supreme Court justice in an election year before” (false), and “the American people should have a say in the selection of the next justice” (they did, when they re-elected President Obama in 2012). As much as they might want to pretend otherwise, Republicans are refusing to do their jobs – and threatening to keep a seat on our nation’s highest court empty until 2017!
But we're not about to let them get away with it. That's why we've launched an emergency campaign to counter the GOP's blockade and fill the Supreme Court's vacancy. PFAW is uniquely qualified to lead this fight. Since the 1980s we've been the national leader in fighting the Right's efforts to pack the courts with extreme right-wing ideologues. And that's exactly what they're trying to do now, by keeping a vacancy on the Court for an entire year and playing politics with our federal judiciary. Republicans are shirking their constitutional responsibility to give fair consideration to a Supreme Court nominee and they must be held accountable. We have a long, tough road ahead of us, but we're not backing down, and we're so grateful to have PFAW members like you on board with us for this historic fight.
Just hours after the death of Justice Antonin Scalia, Republicans made their intentions known: no fair consideration of any nominee put forward by President Obama. So we leapt into action that weekend, mobilizing supporters and activists for an impromptu rally outside of the Supreme Court that has already become the image of the movement, appearing in the New York Times, the Washington Post, the Economist, the Atlantic, and more. We also held a campaign kickoff telebriefing this month for PFAW members across the country, to discuss our strategy for pushing the GOP to back off their unprecedented obstructionism
We're also fighting back by turning up the pressure on Senate Republicans. We teamed up with partner organizations to deliver over 500,000 petition signatures calling for fair consideration of a nominee to Senator Majority Leader Mitch McConnell's Kentucky office. And this week we delivered one million signatures to the U.S. Senate! Americans want to see this Supreme Court vacancy filled, and we're making sure Republicans know that by refusing to consider a nominee, they're going against their constituents.
GOP senators’ refusal to even consider any Supreme Court nominee isn’t just a violation of their constitutional responsibility – it’s also not what their constituents want! Recent polls have shown that a majority of Americans support filling the Supreme Court vacancy, and for some Republican senators, the blockade is already hurting them with voters. We’re working to identify those Senators, and hit them where it hurts: with their constituents. In a robocall we released in Wisconsin this month, activists heard from Martin Sheen about Sen. Ron Johnson’s obstruction of President Obama’s nominee. Sheen asked Wisconsinites to call Sen. Johnson and tell him to put his constitutional duties first, and give fair consideration to whoever President Obama nominates. The robocalls received immediate media attention – exactly what Sen. Johnson doesn’t want. We’re strategizing similar actions for other states where Republican senators are facing tough re-election battles.
Note to senators in tough reelection battles: putting your Washington DC party bosses over the Constitution by standing in the way of filling the vacancy on the Supreme Court is not only the wrong thing to do for our country, it’s also making voters less likely to support you.
New Public Policy Polling surveys released today show that large majorities of voters in Pennsylvania and Ohio, where Senators Pat Toomey and Rob Portman are running for reelection, want the vacancy created by Justice Antonin Scalia’s death to be filled this year. According to the polling memo:
- Strong majorities of voters – 58/35 in Ohio and 57/40 in Pennsylvania – think that the vacant seat on the Supreme Court should be filled this year. What’s particularly noteworthy about those numbers – and concerning for Portman and Toomey – is how emphatic the support for approving a replacement is among independent voters. In Ohio they think a new Justice should be named this year 70/24 and in Pennsylvania it’s 60/37.
- …Voters are particularly angry about Senators taking the stance that they’re not going to approve anyone before even knowing who President Obama decides to put forward. By a 76/20 spread in Pennsylvania and a 74/18 one in Ohio, voters think the Senate should wait to see who is nominated to the Court before deciding whether or not to confirm that person. Toomey and Portman are out of line even with their own party base on that one – Republicans in Pennsylvania think 67/27 and in Ohio think 63/32 that the Senate should at least give President Obama’s choice a chance before deciding whether or not to confirm them. [emphasis added]
Perhaps most notable for the senators, more than half of voters (52 percent in both states) say they would be less likely to vote for Toomey or Portman if they “refused to confirm a replacement for Justice Scalia this year no matter who it was.” Among independents, the numbers were even higher.
Senators Toomey and Portman would be wise to take heed of their constituents, and of the Constitution, and stop refusing to even consider any Supreme Court nominee, regardless of his or her credentials. Any nominee must be treated fairly and honestly. The Supreme Court is far too important to be held hostage to the overtly political obstruction of GOP senators.
After a Holiday break, the Supreme Court returned to a full schedule of arguments and other activity in January. The crucial oral argument before the Court this month in Friedrichs v. California Teachers Association, as well as several cases that the Court agreed to review later this year, again show that on a variety of important issues, the Court has enormous influence but is closely divided. With the president elected in November likely to select as many as four new Supreme Court justices beginning as early as next year, the person we elect as president will be critical. That’s why Election Day 2016 will be Judgment Day for the Court and our rights and liberties.
Friedrichs is the latest battle in what the New York Times has called the “war on workers” and unions being waged by Justice Alito and other conservatives on the Court. A primary target of that war has been a decision almost 40 years ago inAbood v. Detroit Board of Education. In that case the Court determined that although workers cannot be forced to join a union or contribute to its political activities, since that would violate their First Amendment rights, they can be required to help pay for the costs of collective bargaining and related activities from which they benefit even if they are not union members. That solution to what would otherwise be a “free rider” problem is crucial to the ability of unions to effectively represent the interests of workers. Even though a unanimous Supreme Court recognized the principle of Abood as recently as 2009, subsequent 5-4 decisions written by Justice Alito have criticized that ruling and effectively invited attempts to overturn it. That is exactly what the plaintiffs in Friedrichs, a small group of California teachers, are attempting to do, claiming they should not have to join or pay “fair share” costs to the state teachers union and that Abood should be overturned.
The justices’ comments at the oral argument made clear that the conservative 5-4 majority remains hostile to unions and Abood, and may well be prepared to overrule it this year. (As usual, Justice Thomas did not speak at the argument, but his negative views in this area have been made clear in past opinions). Particularly troubling were some comments by Justice Kennedy, who is often the “swing” vote on the Court, but in this case maintained that “free riders” are really “compelled riders” who, he claimed, are forced to support unions on “issues on which they strongly disagree.” Regardless of the merits of that claim, on which many have disagreed, it strongly suggests that there may now be five votes to overturnAbood, with disastrous consequences for unions and workers.
It is impossible, of course, to predict the precise outcome of a Supreme Court case based on the oral argument, and the Court could issue a decision that does not completely overrule Abood. The Court could send the case back to a lower court for specific fact-finding on issues like the impact of eliminating “free rider” payments on unions, as was suggested at one point in the argument, or could limit its holding to the specific case in California. Particularly if the Court chooses one of those alternatives, the question of who will replace older justices like Kennedy, Ginsburg, and Scalia when they retire will be critical. That is why the election in November of our next president, who will nominate such replacements, is crucial for the Court and workers’ rights. Even an outright overruling of Abood could be softened or revisited, but only if a progressive president is elected and selects more progressives Justices for the Court.
During January, the Court also agreed to review several important cases on other subjects this year. The case that has generated the most controversy is United States v. Texas, where lower courts have put on hold the president’s executive orders on immigration that would defer deportation enforcement against millions of undocumented immigrants who have children who are citizens or legal permanent residents and would be able to apply for jobs and stay in the U.S. for three years. Twenty-six states led by Texas filed the challenge, and the huge partisan divide on the question almost guarantees that it will be an election issue this fall. The most extreme Justices on the Court (Scalia, Alito and Thomas) have voted against virtually every significant Obama initiative that has come before the Court, and the Court’s decision to add a question for the parties to address - whether the Obama order is consistent with the Constitution’s language that the president should “take care” that federal laws be “faithfully executed” -- suggests deep skepticism by some of the justices. The decision itself could have a huge impact not only on this specific issue, but also on the ability of a future progressive president to take other executive action in the face of a recalcitrant Congress. However this case is decided, there is also little question that these issues will return to the Court in 2017 or later, and the views of the president who will appoint future justices will be crucial to the results.
The Court also decided in January to review several other important cases this year. In one, the Court has been asked to decide whether a state constitution can more strictly separate church and state than the increasingly conservative Supreme Court has and can prohibit any direct state financial aid to religious institutions. Thirty-five states have such constitutional provisions, and the Court is very divided on such religion issues, which are very likely to come up in the future as well. And in another big business vs. consumers case, the Court will consider what must be proven to prosecute someone for illegally using inside company information for stock or other trading. This issue has divided lower courts, one of which has adopted a narrow interpretation that has dealt a significant setback to the efforts of Manhattan U.S. Attorney Preet Bharara to crack down on insider trading in the $3 trillion hedge fund industry. The Court is likely to be divided on this issue as well.
The Court’s decisions in both these cases later this year will be important in and of themselves. But they are also very unlikely to be the last word on the significant big business, consumer, and religion issues they raise. The fact that these and other crucial issues will be decided by this divided Court in the future, and the fact that four justices on the current Court will be over 80 in the next president’s first term, is what makes the identity of the president who will appoint future justices so important. Statements this month by both Democratic and Republican candidates show that, even as they also discuss other issues, they clearly recognize the importance of the election for the future direction of the Court. In short, Election Day 2016 truly is Judgment Day for the Supreme Court and for all of our rights and liberties.
On Wednesday of this week, in an important case on class actions previewed last September by PFAWF, the Supreme Court handed down a good ruling for consumers concerning class actions. This was an unusual development for the Roberts-Alito Court, which has generally gone along with big business efforts to limit class actions as an important remedy. This time, although Roberts and Alito (and Scalia) dissented, six justices led by Justice Ginsburg rejected a corporation’s effort to hurt consumers.
Class actions are a crucial type of lawsuit that allows consumers and others with relatively small individual claims to band together and seek large amounts of damages to help hold corporations accountable for wrongdoing. In this case, Campbell-Ewald Co. v. Gomez, the corporation had violated federal law by sending unwanted telephone solicitations to some 100,000 people. Jose Gomez got one of those solicitations and filed a lawsuit, asking for the maximum statutory remedy for himself of $1500 but also seeking to bring a class action on behalf of the tens of thousands of other people who received the unwanted solicitations. The corporation tried to end the suit by offering to pay Mr. Gomez his $1500 and then arguing that its offer ended the lawsuit and the basis for the class action. If allowed, that would give corporations an easy and inexpensive way to prevent most class action lawsuits.
The Supreme Court rejected the corporation’s ploy in a 6-3 vote. As Justice Ginsburg explained, if a plaintiff like Mr. Gomez rejects an offer, even if it is for the maximum amount that could be recovered individually, the case remains alive and able to be pursued as a class action. Chief Justice Roberts, joined by Justices Alito and Scalia, dissented and argued, as they usually do, that the corporation should prevail , since it was willing to give Mr. Gomez “everything he asks for.” As Justice Ginsburg explained in response, that “would place the defendant in the driver’s seat”, improperly allowing corporations to spend minimal amounts to pay off individual plaintiffs and forestall class actions.
This decision will not remedy the damage that the Roberts-Alito Court has previously done, and could well do in the future, to limit class actions and harm consumers. And the Court left open the question of whether a corporation can stop a class action by formally placing the full amount of an individual’s claim in an account and getting a lower court to rule for the individual and dismiss the class action claim. This loophole should be closed by the Court, as the New York Times explained, to “protect what remains of the class action from the unrelenting efforts of business to undermine it.” At least in this case, however, even Roberts and Alito could not muster the votes needed to further harm consumers and help big business.
Just hours after the Supreme Court heard oral arguments this morning in a case that will likely have a profound impact on the rights of working people, Friedrichs v. California Teachers Association, People For the American Way hosted a member telebriefing to help unpack what’s at stake in the case.
On the call, PFAW Senior Fellow and constitutional law scholar Jamie Raskin explained that at issue in Friedrichs are “agency fees” that allow the costs of collective bargaining and other union benefits to be shared by all public sector employees rather than by union members alone. Attacking this practice amounts to “a broad-based assault on public sector unions,” Raskin said.
PFAW Executive Vice President Marge Baker situated the case within the context of the Roberts-Alito Court’s pro-corporate record, where the high court has consistently privileged the interests of corporations over the rights of individual people, such as in the Citizens United decision.
“Workers have a right to stand up for themselves” and to “represent their own interests,” Baker added.
Before the telebriefing, PFAW staff and supporters were at the Supreme Court demonstrating in support of the rights of working people as the justices heard arguments in the case.
You can listen to the full telebriefing below, and read affiliate PFAW Foundation’s new report on “Corporations, Unions, and Constitutional Democracy” here.
In an op-ed today in the Boston Globe, former Secretary of State Hillary Clinton takes on what may be the biggest issue at stake in the 2016 election: the future of the US Supreme Court.
The court’s decisions have a profound impact on American families. In the past two decades alone, it effectively declared George W. Bush president, significantly weakened the Voting Rights Act, and opened the door to a flood of unaccountable money in our politics. It also made same-sex marriage legal nationwide, preserved the Affordable Care Act not once but twice, and ensured equal access to education for women.
On Election Day, three of the current justices will be over 80 years old, which is past the court’s average retirement age. The next president could easily appoint more than one justice. That makes this a make-or-break moment — for the court and our country.
That’s true. As People For the American Way recently laid out in our Judgment Day report, virtually every single important issue—from voting rights to guns to reproductive freedom to workplace fairness to the environment and beyond—will be at stake before the Supreme Court. And because the Justices most likely to retire in the next few years come from both sides of the bench, our country has the opportunity to pull the Court from its dangerous rightward lurch of the last decade—or to solidify a far-right majority for a generation.
But just as important as preventing the next president from appointing more Justices in the mold of Scalia, Thomas and Alito, we need to elect a President who will appoint extraordinary jurists who understand the profoundly progressive nature of our constitution. In her op-ed, Senator Clinton lays out what that looks like.
As president (and a lawyer and former law professor), I’ll appoint justices who will protect the constitutional principles of liberty and equality for all, regardless of race, gender, sexual orientation or political viewpoint; make sure the scales of justice aren’t tipped away from individuals toward corporations and special interests; and protect citizens’ right to vote, rather than billionaires’ right to buy elections.
Secretary Clinton isn’t alone in laying out a progressive vision for the Court. Senator Bernie Sanders has spoken repeatedly about the Supreme Court’s decision in Citizens United and how we need to "overturn this disastrous decision.” And Governor Martin O’Malley has promised to “appoint judges who don't think corporations are people.”
All of this is good news for progressives—and why People For the American Way has been pushing so hard for more conversation about the importance of the Supreme Court as we head into the 2016 election. But it’s not enough.
In the coming weeks and months we’ll continue to push candidates of both parties to make clear what kind of judges they’d appoint to our nation’s highest courts, because, as Secretary Clinton says, “There’s a lot at stake in this election. Nowhere is this clearer than in the US Supreme Court.”