Nel's New Day

March 16, 2016

President Nominates SCOTUS Justice – Good Luck, GOP!

The ball is now in the GOP Senate’s court: President Obama has nominated Merrick Garland, chief judge of the D.C. Circuit, for Supreme Court justice. After President Clinton nominated Garland for the D.C. Circuit Court in 1995,  seven current GOP senators were among the 32 who voted to confirm him with a 76-23 vote after waiting for 19 months. A Harvard Law School graduate, Garland clerked for two Eisenhower appointees, Justice William Brennan and Judge Henry J. Friendly. At 63, Garland is the oldest nominee for the court since Lewis Powell (1971) who was 64 when appointed. Garland would be the fourth Jewish justice; the other five are Roman Catholic.

In 2003, Garland voted to bar Guantanamo detainees from seeking relief in U.S. Courts, a ruling reversed by the Supreme Court. In 2010, SCOTUSblog’s Tom Goldstein noted that “Judge Garland rarely votes in favor of criminal defendants’ appeals of their convictions.” Goldstein “identified only eight such published rulings,” along with seven where “he voted to reverse the defendant’s sentence in whole or in part, or to permit the defendant to raise an argument relating to sentencing on remand,” in his tenure on the DC Circuit. An extensive blog delineates other Garland decisions when he was being considered for the high court in 2010.

Ultra-conservative Orrin Hatch (R-UT) called Garland an acceptable nominee just last week. In 2010, Hatch called Garland “terrific” and said he could be confirmed “virtually unanimously,” yet Hatch now says that he won’t even meet with Garland although he has “a high opinion of him.”

Despite his background of valuing Senate traditions, Chuck Grassley (R-IA), chair of the Judiciary Committee, is sticking to his guns in denying Garland a meeting. His intransigence is already costing him as Patty Judge, a Democrat, is challenging Grassley in his re-election this year. Although he voted against Garland for the D.C. Circuit in 1997, his only reason was that the court already had too many judges.

Trying to deflate some of the criticism coming from their constituents, Republican senators have established a task force to orchestrate attack ads, petitions and media outreach with the objective of to bolstering their denying consideration of Obama’s nominee.The National Republican Senate Committee calls Garland “a liberal” and “an activist” although lack of proof.

Senators up for re-election are getting nervous about their leadership’s adamant refusal to even consider a nominee. Pat Toomey (R-PA) said that he would consider Garland but only next year if the new president nominates him. Mark Kirk (R-IL) claimed that he will “assess Judge Merrick Garland based on his record and qualifications.” Kelly Ayotte (R-NH) plans to meet with Garland but follows the party line of opposing any confirmation, waiting until the “people speak” in the November election. She may be fighting a Tea Party candidate in her primary on October 13, 2016. Ron Johnson (WI) said earlier than not voting is an action so he plans to vote—presumably against the president’s nominee.

Although she’s not up for re-election, Sen. Susan Collins (R-ME) said that she would meet with Garland because “I view it as my job.” (The two women senators from Maine have been the most reasonable during the past decade.) Sen. Jeff Flake (R-AZ) will do the same. Collins and Hatch voted in favor of Garland’s appointment to the D.C. Circuit along with other GOP senators Dan Coats (IN), Thad Cochran (MS), Jim Inhofe (OK), John McCain (AZ), and Pat Roberts (KS).

As a member of Clinton’s Justice Department, Garland effectively supervised investigations into such bombings as those of the Unabomber, Oklahoma City, Atlanta Olympics bombings. Supreme Court expert Nina Totenberg wrote that Garland has “a reputation for collegiality and meticulous legal reasoning.” He has “more federal judicial experience than any other Supreme Court nominee in history,” a White House official said. “No one is better suited to immediately serve on the Supreme Court.” National Organization for Women President Terry O’Neill praised Garland for “a rigorous intellect, impeccable credentials, and a record of excellence” but said his record on women’s rights was “more or less a blank slate.”

The media will be filled with lies about Garland and his nomination, but here are some facts.

Senate Republicans Routinely Obstruct Noncontroversial, Qualified Nominees: The reform of filibuster rules in 2013 came after GOP senators held up three highly qualified nominees for the D.C. Court of Appeals, appointments that Republicans admitted were highly qualified. These three were on top of 17 others being blocked or who withdrew, causing a logjam throughout the judiciary branch with positions unfilled back for at least six prior years. The travesty received less attention because none of them was for the Supreme Court.

Republicans Are Falsely Referring to Filling Court Vacancies as “Court-packing”: That term is defined as a president’s attempt to increase the number of seats on a court, not fill a vacancy which is basic governance. The threat of court-packing came from FDR’s desire to expand the number of justices to tilt the Supreme Court in his favor. President Obama is following the constitutional mandate to appoint nominees for vacancies.

Republicans Are Worse than Democrats in Obstructing Presidential Nominees: Obstructionist behavior to President Obama’s nominees is unprecedented as half of all filibusters of executive nominees happened during his terms. Earlier, GOP senators blocked the first director of the Consumer Financial Protection Bureau because they didn’t like the law. Eighteen months ago, PolitiFact noted that 68 nominees had been blocked before President Obama’s election and 79 in less than five years of his two terms. Last year, the Senate confirmed only 11 federal judicial nominees. In at least one case, the same GOP senator—Marco Rubio—who recommended a nominee blocked a hearing for her. The seat was vacant for almost two years, and judges had more than 600 cases during 18 months because of Rubio’s refusal to complete his recommendation.

GOP Obstructionism Has Negative Consequences: Contrary to the position that filling vacancies has no urgency, the practice makes the court system less able to address concerns of people in the U.S. and deny them justice.

Republicans who refuse to give Garland even a nod will show themselves even more ideological in selecting a justice, an action that they have highly criticized in the past. Moderate to the point of being conservative, he’s the chief judge of the second most important court in the nation. The Judicial Crisis Network, largely funded by the Koch brothers, has $2 million to spend on ads, but they may not be able to ruin Garland’s career the way that they can for younger nominees. The D.C. Circuit does not normally deal with such social issues as abortion and LGBT rights, but JCN is already salivating over Garland’s vote to rehear a case over D.C.’s tough gun restrictions.

Garland’s nomination may put Republicans into a no-win situation. Sixty-three percent of people in the U.S. believe that the Senate should hold hearings on President Obama’s nominee to replace Scalia as opposed to 32 percent who don’t want this to happen. Never before has the Senate refused to consider any presidential nominee at all simply because it was an election year. Rejecting Garland sight unseen shows that the nomination is not about the person appointed but about the person doing the appointing.

If Garland appears as a centrist jurist suitable for both parties, GOP opposition makes them look even more obstructionist. Yet caving in on their past irrational promises can alienate the core Tea Party members who the establishment has courted for almost a decade. All GOP senators have left is the media as they hope that the nominee isn’t the even-handed, excellent judge that they have claimed he was in the past.

The November election could change the GOP position of refusing Garland if a the new president is a Democrat. In such a case, Republican senators may confirm him during President Obama’s lame-duck session to avoid the possibility of a more liberal justice. Jeff Flake, who sits on the Judiciary Committee, said, “If the election doesn’t go the way Republicans want it, there will be a lot of people open to that I’m sure.”

In nominating Garland, President Obama contacted every senator. He did his job; now it’s time for the senators to do theirs.  The best thing about the nomination? The media may move some of its focus away from Donald Trump.

February 18, 2016

GOP Hypocrisy Expands with Scalia’s Death

Last weekend’s events—the death of Supreme Court Justice Antonin Scalia and the GOP presidential candidate in South Carolina less than two weeks before that state’s primary—occupied the media. The Saturday night debate showed the shift in presidential debates: in the past, they focused on the people on the stage, but the crowd attending the debate is now part of the performance. Ugly heckling and booing caused Political Wire’s Taegan Goddard to comment that the show seemed to be “taking place in a Roman coliseum,” and Republican David Frum bewailed that the audience  was “joining in the bloodbath.”

Prominent conservative pundit Rich Lowry called the debate a “train wreck,” and Frum asked if the GOP looks “like a party ready to govern anything.” GOP pollster Frank Luntz, who taught the conservative side how to speak in loaded language that hid their efforts to destroy democracy in the nation, said:

“Seriously, this is insane. The GOP is destroying itself tonight, and they have no one to blame but themselves.”

Trump has set the tone for debates. Kasich tried to stop the demolition derby and Ben Carson commented on how few questions he got, but the other four tried to out-insult the others.

While the candidates battled about other issues, they declared consensus in their firm belief that President Obama lacked the right to nominate a replacement for Justice Scalia, who died February 13, 2016, the same day as the debate. An hour after the announcement of Scalia’s death, Senate Majority Leader Mitch McConnell (R-KY) said that the president, with 11 months left in his second term, should leave the nomination to the next president and promised that the Senate would not acknowledge the nominee if the president were so foolish as to making an appointment.

Of the 54 Senate Republicans, 33 opposed any appointment this year. They demand that any nominee continue Scalia’s “legacy”—one of the most conservative on the Supreme Court. Eleven senators indicated a possible willingness to consider a nominee, and another ten are silent on the issue. Seven of the 11 Republicans on the Senate Judiciary Committee, the first stop for any judicial nomination, concurred with McConnell by announcing they would not consider any appointment from President Obama.

Only a decade ago, however, McConnell said:

“Any President’s judicial nominees should receive careful consideration.  But after that debate, they deserve a simple up-or-down vote. . . . It’s time to move away from advise and obstruct and get back to advise and consent.  The stakes are high . . . . The Constitution of the United States is at stake.  Article II, Section 2 clearly provides that the President, and the President alone, nominates judges.”

He had held this position for the previous 35 years. In 1970, McConnell wrote:

“Even though the Senate has at various times made purely political decisions in its consideration of Supreme Court nominees, certainly it could not be successfully argued that this is an acceptable practice.

“The proper role of the Senate is to advise and consent to the particular nomination, and thus, as the Constitution puts it…This taken within the context of modern times should mean an examination only into the qualifications of the President’s nominee.”

The qualifications, according to McConnell, are competence, achievement/distinction, temperament, ethical behavior, and no criminal record. Nothing about political ideology. McConnell voted for a Supreme Court justice late in a president’s term, supporting Justice Anthony Kennedy, nominated only 13 months before the end of Ronald Reagan’s second term. Over a century has lapsed since the president failed to nominate or the Senate failed to confirm a nominee in a presidential year because of the impending election.

In the past, McConnell has stated other rational—and accurate–positions that disappeared after Barack Obama was elected president:

“The President is presumably elected by the people to carry out a program and altering the ideological directions of the Supreme Court would seem to be a perfectly legitimate part of a Presidential platform. To that end, the Constitution gives to him the power to nominate.

“Even though the Senate has at various times made purely political decisions in its consideration of Supreme Court nominees, certainly it could not be successfully argued that this is an acceptable practice.

“The true measure of a statesman may well be the ability to rise above partisan political considerations to objectively pass upon another aspiring human being.”

Reagan supported replacement of justices in the last year of a presidential term:

“The Federal judiciary is too important to be made a political football. I would hope, and the American people should expect, not only for Judge Kennedy’s confirmation but for the Senate to get to work and act on 27 other judicial nominations that have been left in limbo for quite awhile now.”

In July 2008, during the last year of George W. Bush’s second term, Republicans convened a hearing entitled “Protecting American Justice: Ensuring Confirmation of Qualified Judicial Nominees” in reaction to the “Thurmond Rule,” a demand from racist senator, Strom Thurmond, that a president be limited by time to nominate a justice. Almost half a century ago, Thurmond tried to make this mandate in retribution to President Lyndon Johnson’s Civil Rights Act by blocking the president’s nomination of Justice Abe Fortas as Chief Justice in 1968. No rule was passed, and Thurmond said gave the last six months as the timeline for no nominations. Comments from participants in the 2008 hearing:

Sen. Chuck Grassley (R-IA):

“[The idea that July 2008 would trigger the] Thurmond Rule ­­– that’s just plain bunk.  The reality is that the Senate has never stopped confirming judicial nominees during the last few months of a president’s term.”

Eight years later, Grassley said:

“The fact of the matter is that it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year… it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.”

Sen. Lamar Alexander (R-TN) said in 2008:

“There’s no excuse for not considering and voting upon a well­ qualified judicial nominee in the United States of America today…  [J]ust because it’s a presidential election year is no excuse for us to take a vacation.  And we’re here.  We’re ready to go to work.”

Now, Alexander wants to allow the next president to fill this lifetime appointment to the Supreme Court.

Sen. John Cornyn (R-TX), in 2008, wanted the two parties to work together “to confirm qualified men and women to the federal bench” in an election year–“to establish that regardless of the next president’s party, the nominees will be treated fairly and on the basis of their qualifications, and not on the basis of ancient political squabbles.”

Mitch McConnell (R-KY) echoed these ideas:

“I think it’s clear that there is no Thurmond Rule.  And I think the facts demonstrate that.”

GOP Sen. John McCain said in 2005 that if Democrats should “win the next presidential election,” they should choose Supreme Court nominees because “that’s the way the system works.” McCain has now reversed this opinion.

In the Washington Post, Paul Waldman wrote about the change in the GOP:

“[Republicans] haven’t just grown more ideologically conservative in recent years, they’ve also grown more procedurally radical. Again and again, they’ve decided that the system of formal and informal norms that make the government work can be discarded if it becomes inconvenient.”

Republicans started out with the argument that there is no history of a president nominating a Supreme Court justice in his last year. Once that excuse was totally debunked, they decided it would be cruel to the nominee because Senate will destroy that person’s reputation. Sen. Ted Cruz (R-TX) said:

“I think that hearing would end up very politicized. And I don’t think it would be fair to the nominee.”

Sen. Pat Toomey (R-PA) made a similar argument:

“[I]t might be just as well not to have a hearing that would, sort of, might mislead the American people into thinking that this is just about the qualifications of the candidate, because it’s bigger than that.”

One reason for the shift in attitude may be a fear of the Senate reverting to a Democratic majority. Of the 36 senatorial positions up for grabs in the 2016 election, 24 are Republican. Of those 24, six are in for difficulty in being re-elected.

Another concern may be popular opinion, as seen in the results of the conservative Rasmussen poll indicating that 51 percent of likely voters believe that Obama should nominate Scalia’s successor, and 53 percent believe the Senate should not “reject or refuse to consider” the nomination. Only 35 percent favor McConnell’s blocking the president’s constitutional duty to appoint Scalia’s replacement.

Yet the cracks appearing in McConnell’s control of his Republicans seem to be disappearing,  and GOP senators are turning toward rejecting any nominee. For example, Sen. Lisa Murkowski (R-AK) earlier stated that the Senate should hold hearings. Her shift in opinion was revealed in tweets urging President Obama to “follow a tradition embraced by both parties” by yielding to the next president:

“If [the president of the United States] ignores precedent, I believe extraordinary circumstances give the Senate every right to deny the nominee an up or down vote.”

The biggest irony about the argument surrounding an appointment to replace Scalia this year comes from the justice’s famous “originalist” view of the Constitution, his belief that laws and judicial rulings in the 21st century should following the text of the Constitution exactly as the Founding Fathers intended. Article II Section 2 of the Constitution states that the president is responsible for nominating members of the high court. Nowhere does the Constitution state “except when a Democratic president has almost a year to serve.”

As Frank Rich wrote:

“By refusing to act on the Scalia vacancy, the [GOP] party will once again brand itself as the party of obstructionism, government dysfunction, and animosity toward the growing majority of Americans who do not fit its predominantly white male demographic.”

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