Tag Archives: Antonin Scalia

Judge Gorsuch — What should we do?

On Tuesday, the maniac-in-chief nominated Judge Neil Gorsuch to fill the vacancy left by the death of Antonin Scalia.  This nomination creates a significant question for Senate Democrats on how to proceed.

On the merits, at least based on current public knowledge which may change, Judge Gorsuch is a typical member of the Republican conservative establishment:  The son of Reagan’s EPA chief, educated at top schools, a mix of government and private practice before being appointed to the bench by George W.   While it is tough to tell for sure by a decisions on a lower court — where judge’s are bound by Supreme Court precedent and are trying to read between the lines to avoid reversal — Judge Gorsuch seems very similar to Justice Scalia.  It is not really possible to tell if he is on the Alito (more conservative) or Roberts (more moderate) side of Scalia.  In any case, with the exception of some criminal cases, Justice Scalia was rarely the fifth vote in a progressive decision.  As such, barring someone on the loony side, it is unlikely that any Trump nominee is going to substantially alter the balance on the Supreme Court from what it was before Trump died.  (Of course, it would have been preferable to have a Democratic president replacing Justice Scalia, but that is not now a possibility.)  And Trump is likely to nominate a candidate in his/her upper 40s or lower 50s like Judge Gorsuch, so the next opportunity for Democrats to replace any of the four conservative judges will be at least a decade or more in the future barring any unexpected deaths.  Given this reality, the question is how hard to fight this nomination.

The battle over judicial nominations — like everything else — has become more a matter of political trench warfare with each cycle.  In the 1960s, the nomination of Thurgood Marshall was contentious, but — at that time — the ideological lines between the two parties were blurrier and the opposition was regional (Southern senators of both parties) rather than partisan.  However, with the exception of the nomination of Abe Fortas in 1968, all nominees received a vote on the merits (except for those who withdrew before any floor vote) until 2016.   At the time of his retirement in 1991, Justice Marshall was one of two members of the court who received double digit “no” votes on confirmation (with 11 no votes).  However, the last four nominees all received more than twenty “no” votes and only Chief Justice Roberts received less than thirty “no” votes.

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The Supreme Court — Year in Review; Year yet to Come

The big court story of 2016 was the February death of Justice Antonin Scalia.  In an unseemly display, before the body was even buried, the Republican leadership in the Senate announced that they would not confirm any nominee made by President Obama.  However, while they did not make any official announcement about other judicial vacancies, the Republicans’ approach to the Supreme Court vacancy was consistent with their approach to the judiciary in general.  The outgoing Senate only confirmed 22 judicial nominees over the last two years and did not confirm anybody nominated after September 2015 (with the last confirmation vote occurring before the July 2016 recess).  By comparison, in the last two years of the George W. Bush Administration, a Democratic Senate confirmed 67 judicial nominees with the last confirmation vote occurring in September 2008 for a person nominated in July 2008.

At the end of the day, the Democrats lost a golden opportunity to bring an end to four decades of Republican control of the Supreme Court.  A win this past November would have led to a solid Democratic majority for the next two or three decades.  However, the reality is that for the past forty years, moderately conservative Republicans on the court have formed a barrier to the more extreme positions in the Republican party winning on several issues.  As such, controlling the Supreme Court has mattered more to Republican leaners than to Democratic leaners.  (Several conservatives argued that Republicans should hold their noses and vote for Trump to keep control of the Supreme Court.)  At some point, Democrats may wake up and find a court in which Justice Samuel Alito is the swing vote, but we are not there yet.  The Republican stand on the Supreme Court probably made some Republican Senate seats more vulnerable than they would have been, but Democrats failed to explain why control of the Supreme Court matters.  Democratic voters may soon suffer for this failure of leadership.

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Religion and the Contraceptive Mandate

In the Spring of 1990, when Justice Scalia had only been on the Supreme Court for four years, he wrote an opinion that offended both sides of the political spectrum — Employment Division vs. Smith.  For fifty years prior to Smith — in cases dealing with unemployment benefits for Jews and Seventh Day Adventists who would not work on Saturday for religious reasons, with Jehovah Witnesses who objected to their children having to say the pledge of allegiance, with Amish who declined to send their children to school, and with conscientious objections — the Supreme Court had applied a version of compelling interest test to  claims that a law infringed on practices of individual religions.  In Justice Scalia’s view of the free exercise clause, the constitution only protected the right to believe in a religion, not to actually follow the dictates of a religion in one’s daily life.  (Of the other four justices in the majority, only Justice Anthony Kennedy is still on the Supreme Court.)  In response, Congress practically unanimously passed the Religious Freedom Restoration Act (RFRA) which, as a matter of statutory law, enacted an exemption from federal law based on religious belief containing an enhanced version of the compelling interest test.

On Wednesday, for the second time since the passage of the Affordable Care Act, employers will be seeking an RFRA exemption from the regulations implementing the Affordable Care Act, specifically the regulations which include coverage for contraceptives as part of the mandatory coverage that large employers must offer to their employees or pay a fine.  Unlike the employers in the first case, which were for-profit private employers, the employers in this case are religiously affiliated non-profits (including universities and charities).  This case also revolves around the steps that employers must take to claim the exemption recognized in the first case, with the employers claiming that even these steps implicate them in aiding their employees sinful desires.

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Judge Garland and the Election

Following the example of every other President since George Washington, President Obama has nominated a candidate to fill the vacancy on the Supreme Court caused by the death of Justice Antonin Scalia.  The Senate majority, in an unprecedented move, are declining to either schedule hearings (a relatively new part of the nomination process, only dating to the early part of the 20th Century) or allow the nomination to be brought up to the floor for a debate.  While there have been times that the Senate has voted down a nominee or the President has withdrawn a nominee based on objections to that individual that made it likely that the nomination would fail (or that there were not enough votes for cloture).  How this conflict plays out over the next six months depends, in part, on events outside of the control of the Senate and the White House.  In particular, it depends on whether it seems like the vacancy is becoming an election issue and the perceived likely outcome of the election (which is not the same thing as what will ultimately happen in November).

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Supreme Court — Front and Center

Elections matter.  In 2012, President Obama won the right to nominate judges and justices to fill vacancies on the bench — both in the lower federal courts and on the Supreme Court.  In 2010 and 2014, the Republicans won the right to vote down any unacceptable nominees.

Earlier this morning, Justice Antonin Scalia passed away.  In 1986, President Reagan nominated Justice Scalia to fill the Associate Justice spot that had belonged to Justice Rehnquist when President Reagan nominated Justice Rehnquist to be the new Chief Justice.  For most of his career, Justice Scalia was the intellectual leader of the ultra-conservative wing of the Supreme Court.    This vacancy — if filled during this Administration — would be the first time since 1970 that a majority of the Justices on the Supreme Court will be Democratic appointees.  This vacancy will have both short term and long term impacts on politics.

The immediate short term is that — except for a handful of issues — Justice Scalia is generally a solid vote for the “conservative” side of legal issues.  Those cases that would have been a 5-4 split in favor of the conservative side will now be a 4-4 split.  On a 4-4 split, there is no decision and the lower court opinion stands (unless the Supreme Court opts to reschedule the case for the following term).  Additionally, as it takes a favorable vote from four justices before the Supreme Court grants full briefing and argument on a case, the tradition when there is a vacancy is to hold cases that have three votes for full review.   In particular, the continued extension of “free speech” rights to make it easier for conservatives to raise money and harder for liberals to raise moneys is temporarily on hold.   The current opt-out provisions for the contraceptive mandate will probably also survive.  Any decision on the immigration policy will either favor the White House or leave it back to the lower courts to decide on the merits (the current issue before the Supreme Court only concerns a temporary injunction pending a full trial).

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