SCOTUS

LawNewsPolitics

On Wednesday March 16, 2016, Barack Obama named Judge Merrick Garland to the Supreme Court of the United States of America (SCOTUS). The nomination came after a month of nail biting by Democrats and whining and begging by Republicans who were both expecting the nomination process to be a political fist fight between the parties.

Journalists and self-proclaimed legal experts – myself included – threw out names left and right trying to predict who would be chosen to fill the late conservative Justice Antonin Scalia’s seat. Republican candidate and known racist misogynist Donald Trump begged the mostly Republican Senate to “delay, delay, delay,” in an attempt to make sure Obama wouldn’t pick a liberal judge to fill the vacancy. Everyone was expecting Obama to choose a liberal minded justice from a visible minority.

President Obama surprised us all.

He chose to nominate Judge Merrick Garland, Chief Judge of the DC Circuit Court of Appeals.

From a superficial perspective, Garland is everything even the most backward uneducated racist Republican could hope for. He’s visibly white, male, and he’s old – sixty-three years old to be exact. He’s got silver hair, glasses, and in an age where business attire is becoming more casual, he wears a suit and tie and looks comfortable and polished in both.

Politically, he should be a Republican’s dream, because he’s not that liberal. Most sources on Garland identify him as a moderate, an old-school idealist who dropped a very lucrative career with Arnold & Porter, one of the most respected law firms in the US, to become a public prosecutor. When asked why he did it, Garland said that as a prosecutor you don’t have to take every case; you make your best judgment and “only go forward if you believe the defendant is guilty.”

Garland’s CV is nothing short of impressive.

He worked for the Justice Department during the Carter Administration and after a brief stint in private practice, returned to the Department at age forty as a top official in the Criminal Division of the Clinton Administration. He eventually became second in command to the Deputy Attorney General as a key member of Janet Reno’s team.

He’s got tons of experience in anti-terrorism and was the chief investigator in the Oklahoma City bombing case. He has a history of breaking with liberal judges and fits the career pattern of most of the current justices of the Supreme Court.

If staunch conservative Republicans have any doubts about Garland, they need only look at the fact that Republican Senator Orrin Hatch of Utah – a man who is anti-abortion and voted against adding sexual orientation to the legal definition of hate crimes – once called Judge Garland “a fine man.”

In spite of this, Republicans seem determined to keep Judge Garland off the Supreme Court. They are currently refusing to confirm the nomination, prompting the Obama Administration to create the social media hashtag #DoYourJob.

The reason for the block may surprise you.

It’s not because Garland is Jewish. Even the staunchest racists tend to trust Jewish lawyers and judges.

It’s not just because Obama likes him. Despite what the media will have us believe, Republicans and Democrats can be friends and even agree on something once in a while.

It’s not just because the President of Planned Parenthood Cecile Richards said Judge Garland seems like a “responsible and qualified nominee.”

The most likely reason Republicans are shunning Garland is a judicial decision he published last July regarding a federal ban on federal contractors making federal campaign contributions. In Wendy E. Wagner et al v. The Federal Election Commission, Judge Garland maintained the ban and refused the appeal, which had been argued on First Amendment grounds and on the basis of equality rights.

The First Amendment of the US Constitution guarantees freedom of speech, religion, and the press. In the opening paragraph of the decision, Judge Garland stated that the concerns that prompted the ban – concerns regarding corruption – “remain as important today as when the statute was enacted.”

This undoubtedly hit a nerve with Republicans who rely on contributions from a variety of sources – many with vested interests in policy-making – to fund expensive political campaigns. The nerve is especially raw in this circus the US calls an election year.

The only Republican presidential candidate to show any pragmatism about the nomination is John Kasich, the current governor of Ohio. He criticized the Republican Senate’s arbitrary block of Judge Garland, saying that the Senate should at least meet the guy before deciding one way or the other. Kasich even went insofar as to say that he might name Garland to SCOTUS himself if elected president, a statement he later withdrew undoubtedly after receiving a barrage of criticism from fellow Republicans for refusing to tow the party line.

Judge Garland is liked by just about everyone in Congress and the legal community, and those who don’t like him at the very least respect him. He’s everything a realistic Republican could want: white, male, not too young, not too liberal, and tough on crime and terrorism.

So what’s the holdup? It’s time the American people nag their Senators into doing what they are constitutionally mandated to do.

Their JOBS.

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It wasn’t long after news of Supreme Court Justice Antonin Scalia’s passing hit social media on Saturday that we got an idea of what the Republicans were planning, courtesy of Conn Carroll, Communications Director for Senator Mike Lee of Utah:

This sentiment was echoed in much more nuanced terms by GOP Presidential hopeful Ted Cruz:

It is clear that the Republicans, who now control the US Senate, plan to block any Supreme Court nominations current President Barack Obama makes to replace Scalia on the bench. Their motivations are clear and it is possible for them to achieve this goal, with a little over a year to go before the next President is sworn in.

But if they do succeed in carrying out this plan, they may have wished they hadn’t. Nobody knows who the next President will be or which party will have a majority on the Senate.

Republican Dream Scenario is Just a Dream

The GOP is clearly hoping one of their own moves into the White House and nominates a right-leaning candidate which the Senate, still controlled by Republicans, quickly confirms. Now, I know that you have to approach an election with the attitude that you are going to win, but even GOP strategists must realize that their dream scenario is a bit of a longshot.

It’s extremely likely, thanks largely to gerrymandering, that the Republicans will still form the majority in the US House of Representatives, a body that has nothing to do with Supreme Court nominations. They have a likely, though not definite, chance of retaining control of the Senate, too, so there is a decent chance they will retain control of the confirmation process if they succeed in delaying.

When it comes to winning the Presidency, the odds are not in their favour. When a two-term President is still popular at the end of his second mandate, there’s a good chance his party will keep the Oval Office, for at least another term.

George W. Bush was extremely unpopular across the board when he left office, to the point that John McCain didn’t really want him helping out during the campaign. Obama is still loved or at least respected by most of those who voted for him and the people who hate him now hated him in 2008, too.

Also, the Democrats have narrowed their options to two and the debate is pretty much centered on how much to the left of Obama the party should go. The Republican field, on the other hand, is still wide open.

Factor this all in and the possibility of a Republican being able to nominate the next Supreme Court Justice, while not an impossible scenario, is not the likely scenario. So the question becomes: Why would the GOP gamble everything on a bet they very well may lose?

Irrational Fear of Obama or Playing to the Bigoted Base?

Despite all the rhetoric the right throws at him, President Obama is a solid practitioner of incrementalism. Anyone he nominates to the Supreme Court, though perhaps harboring a liberal bias on some issues, would be, by and large, a moderate. Not just that, but someone specifically selected to pass through confirmation by a majority Republican Senate.

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FTB’s legal columnist Samantha Gold listed some of Obama’s potential choices. These are all qualified jurists who really don’t scream anything close to radical activist. One of them, David Jeremiah Barron, even once wrote a legal memo justifying drone strikes against US citizens. While this horrifies me, I don’t see why law and order “kill the terrorists at all costs” Republicans would have a problem.

What may make the GOP nervous about confirming some of these names? Could it be the names themselves? Sri Srinavasan and Jacqueline Hong-Ngoc Nguyen both have the qualifications to justify being on the SCOTUS, but they also both have names that don’t sound white, because they’re not. They also both weren’t born in the US.

None of this should matter, but it may matter to the more racist elements of the Republican base. We’re talking about people who care less about the fact that Srinavasan graduated from Stanford Law than the fact that he swore his oath to the circuit court on the Baghavad Gita instead of a Bible.

Now, of course the Republican Party can’t come out and say that racism played a role in their decision to force a delay in the nomination. What they can do, once it becomes widely known that the Thurmond Rule (what they are using currently to justify pushing the nomination to the next President) is not an actual rule and also doesn’t even apply until the last six months of a President’s term, is play the fear and hatred of Obama card.

It’s something they have mastered. Irrational paranoia over a moderate incrementalist. In this case, though, it may give them a result that will make approving an Obama nominee seem like the safe bet.

What Could Happen

Let’s look at a few hypothetical situations that could arise after the Senate Republicans delay filling Scalia’s seat until the next US President is sworn in:

  1. Hillary Clinton or Bernie Sanders is the next President and the Republicans still control the Senate: The list of potential nominees would be similar, though maybe not that drone supporter guy in the case of a Sanders presidency. All the Republicans accomplished was leaving the court deadlocked for a year with no purpose behind it.
  2. Clinton becomes President and the Democrats take control of the Senate: She could nominate some of these people but would be free to go with a judge decidedly more liberal.
  3. Sanders becomes President and the Democrats take control of the Senate: The Republicans freak out, call a lame duck session and try with all their waning power to confirm Obama’s nominee because they know Bernie won’t pick a moderate or even close!

Never mind the fact that the current Republican course of action has them completely and deliberately ignoring their constitutional responsibility to promote an illogical fear of Obama and appease the more racist elements of their base, it also has them throwing everything behind a bet there is a good chance they won’t win.

LawNewsPolitics

On February 13, 2016 Antonin Scalia, Justice of the Supreme Court of the United States (SCOTUS) died. He was 79. Instead of reacting with sympathy for Scalia’s family, Republicans began bemoaning the fact that President Obama would most likely choose his replacement before the year is out.

Antonin Scalia was conservative and an influential member of the court. He was anti-abortion, pro death penalty, and against minority rights and affirmative action. His death has resulted in an even four to four ideological split between conservative judges and liberal ones. Obama said that he would soon name Scalia’s successor and the Republicans are having what could only be called a tantrum.

Republicans are demanding that Scalia’s replacement be appointed after the end of Obama’s term in January 2017. Presidential candidate and wealthy racist misogynist Donald Trump has been the most vocal, all but begging the US Senate to “delay, delay, delay”. The fear is that whoever Obama names will be liberal, effectively tipping the ideological leanings of SCOTUS in favor of the Democrats.

Article 2, section 2 of the US Constitution says that the president has the power to appoint judges of the Supreme Court with the advice and consent of the Senate.

The way it works is: the president nominates someone to the Supreme Court, and it’s up to the Senate to confirm the nomination. If a majority votes in favor of the new judge, that judge becomes a member of SCOTUS. If the Senate votes against, the president will have to choose someone else.

Republicans want the Senate to delay the nomination, but the legal foundation for their arguments is a weak one.

Republican Senators are pushing for delays on the basis of the Thurmond Rule.

The Thurmond rule is not actually a law. It’s an informal rule that’s never been entrenched in US law. It originated in the 1960s with segregationist Senator Strom Thurmond who was trying to punish then-President Lyndon B. Johnson for passing the US Civil Rights Act by opposing Johnson’s candidate for SCOTUS. The rule states that a president cannot name a Supreme Court Judge in the last six months of his presidency.

The problem with using this rule is that the Republicans don’t seem to have checked their calendars.

As per the rules regarding term limits, Obama’s presidency ends on January 20, 2017. That means that even if the Thurmond Rule were an enforceable law, it would only apply as of July 20, 2016. Presidential decisions often take a long time but it’s likely that Obama will name a successor before then.

In its entire history the US Supreme Court has never gone more than six months without the full number of judges. Although SCOTUS consists of nine judges, a quorum of six is required to hear a case. Judges are human beings and the court receives between seven and eight thousand applications for appeals each year. An empty seat on a court with such a high case load simply isn’t practical.

Let’s look quickly at some of the most likely candidates for Scalia’s replacement:

  • Sri Srinavasan, age 49, is an Indian born circuit judge for the US Court of Appeals. A graduate of Stanford law school, he’s an ex clerk for former Supreme Court justice Sandra Day O’Connor and the first appellate court judge to swear his oath on the Baghavad Gita, a fact that will most likely bother Bible thumping Republicans. He was named to his current position by Obama in 2013 and was confirmed 97-0 by the largely Republican Senate.
  • Patricia Ann Millet, age 52, is also a US Court of Appeals judge. A graduate of Harvard Law School Magna Cum Laude, she was appointed to her current position by Obama in 2013. As a lawyer she argued 32 cases before SCOTUS. She is also an occasional blogger for SCOTUS’ blog and an advocate for military families, something that could endear her to Republicans.
  • Jacqueline Hong-Ngoc Nguyen, age 50, is a Vietnamese born US Court of Appeals judge. Her father was a major in the South Vietnamese army who helped the Americans during the Vietnam War. She graduated with a Juris Doctor from UCLA and during her years in private practice worked mainly on commercial disputes, intellectual property, and construction defect cases. She was recommended for the appeals court by Democratic Senator Diane Feinstein and was appointed by Obama in 2009. Her nomination was also confirmed by the Senate 97-0.
  • Paul J Watford, age 49 is an African American US Court of Appeals judge. A graduate of UCLA law school, he is a former clerk for SCOTUS justice Ruth Bader Ginsberg. He was appointed to his current position by the Senate 61-34. On SCOTUS’ blog, US appellate advocate Tom Goldstein named Watford as the most likely replacement for Scalia because he’d be a more moderate counterpoint to conservative justice Clarence Thomas.
  • David Jeremiah Barron, age 48, is a first circuit judge and one of the only white males named by the experts as a possible replacement for Scalia. He is also one of the most controversial due to a legal memo he wrote justifying lethal drone strikes against American citizens suspected of terrorism.

Though nominations to any court should be about ability and dedication to the law, it is unfortunately politics that rules the day. The debate surrounding Scalia’s replacement has done nothing but highlight how much Republican legal philosophy is rooted in fear.

Scalia was their hero, a die-hard defender of the law in its purest, most literal form, even if judicial interpretation came at the expense of women, blacks, Hispanics, and LGBT people. His replacement might not be so ignorant of modern realities that require judges to interpret the law in a way that reflects society’s evolution and progress.

This includes the recognition that a rule is not a law unless it is voted on and passed by Congress and that the Senate is as bound by the law as anyone else.