“Now That It’s 2016, New Heights Of Hypocrisy”: GOP Cynicism On The Supreme Court Reaches A New Low
A spokesman for Mitch McConnell said that the Senate should confirm judicial appointees through at least the summer. The cutoff for confirming judges in an election year, known as the ‘Thurmond Rule,’ “doesn’t need to be June, especially because we’re so far behind on the legislative calendar,” he said.
Similarly, Senator Jeff Sessions (R-AL) said, “Let me say this about the Thurmond Rule. It is a myth. It does not exist. There is no reason for stopping the confirmation of judicial nominees in the second half of a year in which there is a Presidential election.”
Even a Bush spokesperson said that the “only thing clear about the so-called ‘Thurmond Rule’ is that there is no such defined rule.”
Of course, all that was in 2008, when George W. Bush was the lame-duck president and Democrats controlled the Senate.
Now that it’s 2016, and the tables are turned, McConnell has said he’d be shocked, shocked if President Obama nominated a Supreme Court justice as late as February of his final year in office.
In fact, while there’s hypocrisy on both sides of the aisle, a review of recent history reveals more of it on the Republican side.
Let’s begin at the beginning. For 166 years, Supreme Court confirmations used to be a matter of course, with rare exceptions. In the 19th century, they usually took only a few days. The current process of Judiciary committee hearings began only in 1955, in the wake of Brown vs. Board of Education, with segregationists and other conservatives outraged at the “activist” Warren Court.
The custom of not confirming judges in a presidential election year began with the avowed segregationist Strom Thurmond, who opposed LBJ’s appointment of Abe Fortas as Chief Justice back in 1968. (Notice, by the way, the “Thurmond Rule” wasn’t even about filling a vacancy – it was about moving Fortas from Associate to Chief Justice.)
Prior to that time, Supreme Court nominations in election years were par for the course. Justice Frank Murphy was nominated in 1940, Cardozo in 1932, Clarke and Brandeis in 1916, and Pitney in 1912.
But there were many reasons for conservatives to oppose Fortas. As an associate justice, he had maintained an unusually close relationship with LBJ (allegedly, Fortas helped write one of LBJ’s State of the Union speeches). There was a minor scandal involving speaking fees. There was Fortas’s religion – it was one thing to have a “Jewish seat” on the Supreme Court, but quite another to have a Jew as Chief.
But mostly, it was ideology. Fortas was a full-fledged member of the Warren Court, extending due process rights to minors, and writing the opinion that effectively banned creationism from public schools.
The tactic worked. The Fortas appointment was withdrawn, and the position of chief justice has been held by a conservative for the last 46 years (Burger, Rehnquist, Roberts).
Since then, the “Thurmond Rule” has been understood as holding that lifetime appointments of all types should not be made in the final six months of a president’s term in office.
In practice, however, the “Thurmond Rule” could best be described as the “Sore Loser’s Rule,” since it is wielded by whichever party doesn’t hold the White House at the moment. In July, 2004, Republican Senator Orrin Hatch said there was no such thing. And Republican Senator John Cornyn threatened in 2008 that if Democrats invoked the Thurmond Rule, Republicans would go nuclear: “We could require 60 votes on every single motion, bill and procedural move before the Senate,” he said at the time.
Now, it’s the Republicans’ turn to invoke the rule, and Democrats’ turn to be outraged.
But some hypocrisy is more equal than others.
First, the Thurmond Rule has never been extended back this far. In 2008, Democrats didn’t invoke it until the late summer; Senator Dianne Feinstein said it kicks in after the first party convention. It’s February now, and even the longest Supreme Court confirmation in history – that of Justice Brandeis, in 1916 – took 125 days. (Brandeis was called a “radical” and bitterly opposed by conservatives, with antisemitism even more overt than Fortas later faced.) So this would be an unprecedented expansion of the “Rule.”
Second, the ‘Rule’ has never been applied to Supreme Court vacancies. On the contrary, when President Reagan nominated Anthony Kennedy to the court, he was confirmed 97-0 on February 3, 1988, with Senator McConnell voting in favor.
Now, in fairness, Kennedy was nominated in November, 1987, after the Bork-Ginsburg controversies had left the court with eight justices for five months – seven months counting Kennedy’s confirmation. It was arguably a special case. Moreover, Kennedy was a consensus nominee who has emerged as the swing vote over the last decade precisely because he votes equally with conservatives (as in Citizens United) and liberals (as in the same-sex marriage cases).
But if no justice were confirmed now, the vacancy would be even longer: twelve months at least.
Third, the statistics cut sharply against Republicans.
According to a detailed study by the Brookings Institute, the Senate has already slowed down the pace of judicial confirmations to record levels. In the case of Reagan, Clinton, and Bush, confirmations didn’t slow down until the second half of the presidents’ eighth year in office. In their seventh years, the Senate confirmed 23, 17, and 29 judges, respectively. In Obama’s seventh year? 10.
In other words, the two-term Republican presidents fared almost twice as well as the two-term Democrat presidents, with Obama faring the worst by far.
Moreover, the “Thurmond Rule” has rarely been applied with the orthodoxy Republicans now are claiming. An exhaustive 2008 report by the non-partisan Congressional Research Service unearthed a goldmine of historical information that belies the current majority’s claims:
In 1980, the Republican-led Senate confirmed 10 out of 13 judges nominated by President Carter in September, with Senator Thurmond himself coming under fire for trying to block some of them.
In October, 1988, the Democratic-led Senate Judiciary committee led by Joe Biden confirmed 11 out of 22 of Ronald Reagan’s judicial appointees. In October, 1992, the same committee confirmed 11 of George H.W. Bush’s.
In 2000, the Republican-led Senate confirmed 31 of President Clinton’s 56 nominations. And the 2004 Senate (narrow Republican majority, Republican president) confirmed a whopping 80% of nominees—despite claims that the Democrat minority was obstructing them.
In 2008, a Brookings Institute review found that George W. Bush’s confirmation rate was 58% for circuit court nominations, 43% for district courts—in other words, roughly the same.
In short, until this one, an opposing-party Senate has never observed the Thurmond Rule. Not in 1980, not in 1988, not in 1992, not in 2000. There are typically slowdowns in confirmations, but never a standstill. And the rule has never been invoked before the summer, let alone before the cherry blossoms bloom. Perhaps unsurprisingly, we’re in new territory this year, and at new heights of hypocrisy.
By: Jay Michaelson, The Daily Beast, February 16, 2016
“A Pledge He Can’t Keep”: Bernie’s Prison Promise Is Too Good To Be True
Democrats’ embarrassment of riches was on display last night in Milwaukee. Watching the two candidates, the choice between Hillary Clinton’s pragmatism and Bernie Sander’s idealism feels less like a primary battle and more like a glimpse of the internal dialogue swirling in the average progressive brain.
Practicality doesn’t always mean granting concessions, says Clinton, and big dreams don’t signal naivety, says Sanders. Their campaigns are running on flip-sides of the same coin: Elect me, and I’ll make progressive policies actually happen.
That undercurrent of possibility is why something seemed off to me about a promise Sanders made early in the debate. Talking about criminal justice reform, Sanders committed to a specific pledge: “Here’s my promise, at the end of my first term as president we will not have more people in jail than any other country.”
It sounds too good to be true, but that could just be cynicism talking. Sanders is certainly right that the U.S. imprisons more people than any other country on earth, a point both he and Clinton have made repeatedly during recent months.
The horrifying statistic shifts only slightly depending on how it’s calculated: In raw numbers, there are approximately 2.22 million people incarcerated in America, the most of any country on earth, according to the most recent World Prison Population List released by the International Center for Prison Studies. Coming in second place is China with 1.66 million people incarcerated. (It’s important to note, however, that this count only includes the prisoners that China officially recognizes.) Russia comes in a distant third with 640,000 people in prison.
If you adjust for population size, the U.S. has the second-highest incarceration rate in the world. We held the title for years until the island nation of Seychelles overtook us in 2015. Comparing the number of prisoners per 100,000 of the national population, Seychelles has a rate of 799. (And its entire population isn’t even 100,000.) The U.S. and its mammoth population of nearly 320 million has a rate of 698 per 100,000. To put this in perspective: The majority of nations worldwide have incarceration rates of less than 150.
While it’s not much of a consolation to be second rather than first in global incarceration rates, Sanders could theoretically make good on his pledge just by maintaining the status quo and pointing to incarceration rates by population at the end of his first term. Of course that would do nothing of actual value for criminal justice reform, a top priority of both Sanders and most Democrats.
Thus, Sanders must be promising to simply, and drastically, reduce the raw number of people incarcerated in America. So could he do that?
In a word: Nope.
It’s a hollow promise, impossible for Sanders to keep given the powers of the presidency.
Of all the people incarcerated in the U.S., only about 13 percent are in the federal system. And while the Constitution grants the president pardon authority for “offenses against the United States,” the president has no such authority over state prisoners. As the White House simply explained in response to a Change.org petition to pardon the two men featured in the Netflix documentary “Making a Murderer,” “the President cannot pardon a state criminal offense.” That power rests at the state level.
There are currently 210,567 people incarcerated in the federal system, according to the most recent Bureau of Justice Statistics report. Even if Sanders were to unlock every single federal prisoner and set them free, there would still be approximately 2 million people incarcerated – we’d still hold the global crown for most people incarcerated, because even with zero federal prisons we’d continue to lead China by about 400,000 prisoners. As NYU professor Mark Kleiman, who literally wrote the book on America’s incarceration problem, put it, “Sanders was very specifically making a promise he has no way of keeping. Either he knows that or he does not.”
I want very badly to believe a President Sanders could fulfill his promise and remove the disgraceful crown of mass incarceration from our collective heads, all in his first four years. But that’s just not the reality of how our system works.
Math hasn’t been kind to Sanders on a couple of his platforms thus far. And without the potential for real change, passion just amounts to noise. Sanders understands this – he has detailed, solid ideas on justice reform. Perhaps more critically, he has easy lines of attack against Hillary for her support of her husband and then-President Bill Clinton’s enactment of minimum sentencing guidelines and law enforcement measures that sent the prison population skyrocketing. So why is he undermining himself with fairy-tale promises?
By: Emily Arrowood, Assistant Editor for Opinion, U.S. News & World Report, February 12, 2016
“It Will Be Easy To Replace Antonin Scalia”: In Terms Of Quality In A Supreme Court Justice, He Will Be Easy To Replace
Antonin Scalia’s unexpected death came as a shock to me—and not just because I had plans until recently to go hiking this weekend in Big Bend, Texas, where the justice died. Scalia has been a fixture on the Supreme Court for my entire legal career, and he didn’t seem to be going anywhere. During Barack Obama’s presidency, he hunkered down: no way would a Democrat appoint his successor. The right adored him as much as the left reviled him. He was the Court’s most colorful personality since William “Wild Bill” Douglas retired in 1975. Scalia’s family will miss him, and they are surely hurting right now. They have my sympathies. But as the tributes roll in and Scalia’s impact on the Court comes into focus, I predict a consensus will emerge that he has damaged the institution he served for so many years.
It is ironic that Scalia died during this particular presidential campaign, because he strongly resembled two leading Republican hopefuls: Donald Trump and Ted Cruz. Like Trump, Scalia was larger than life. He took his elbows with him wherever he went. The more outrageous his rhetoric, the more his fans lapped it up. Scalia trashed his colleagues’ writing, calling it “preposterous” and compared it to “the mystical aphorisms of the fortune cookie”; their reasoning was “patently incorrect” and “transparently false.” With his low punches and salty talk, Scalia coarsened the Court—just as Trump has coarsened the presidency. As the much more restrained John Paul Stevens said to one of Scalia’s biographers, “I think everybody respects Nino’s ability and his style and all the rest. But everybody on the Court from time to time has thought he was unwise to take such an extreme position, both in tone and in the position.”
Like Ted Cruz, Scalia possessed a rare intellect. (Cruz, a former Supreme Court law clerk and appellate lawyer, was a big fan.) Scalia was for a time the Court’s most persuasive voice on technical matters like jurisdiction and procedure. He was an unquestionably talented writer. No justice had a quicker wit. Yet, also like Cruz, Scalia proved ineffective within the constraints of an organization, where cooperation and pragmatism tend to produce results. His strident behavior alienated the people around him. “Screams!” wrote Justice Harry Blackmun on a draft Scalia dissent in 1988. “Without the screaming, it could have been said in about 10 pages.” When a very junior Scalia commandeered an oral argument in 1987, Justice Lewis Powell whispered to a colleague on the bench, “Do you think he knows that the rest of us are here?” Scalia seemed to make a special point of picking on Anthony Kennedy, the Court’s swing voter for the past ten years, and an essential member of any 5-4 coalition. His inability to hold his fire or to build consensus meant that he was assigned few important majority decisions in the later years of his career.
I will remember Scalia mainly for the ugliness that permeated his opinions. He once wrote with astonishing callousness that it is not unconstitutional to execute an innocent person if that person has received a fair trial. He described affirmative action as “racial discrimination,” and mocked the notion that it could help students achieve “cross-racial understanding.” (No one squeezed more sarcasm out of a quotation mark.) A devout Roman Catholic, Scalia harbored a particular scorn for “the homosexual agenda,” writing in a paper-thin third-person: “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”
Scalia had been slipping lately. He made a spectacle of himself before journalists, flipping his chin at them and giving needlessly provocative speeches. He openly flouted the Court’s recusal traditions, going on a hunting trip with Dick Cheney and then refusing to recuse himself from a suit against the vice president. He engaged in an unseemly public spat with Judge Richard Posner, going so far as to call Posner a liar after Posner panned Scalia’s latest book. The invective in his opinions and his behavior at oral argument had become truly outrageous, and caused many a citizen to associate the Supreme Court with cheap partisan point-scoring. It has been a long fall for what had been one of the most trusted institutions in government.
Scalia was a character, and he will be hard to forget. But in terms of quality in a Supreme Court justice, he will be easy to replace.
By: Michael McDonnell, Contributor, Ten Miles Square, The Washington Monthly, February 14, 2016
“Obama Rejects The Rejectionists”: Scalia’s Passing Starts A Court Fight For The Ages
In most presidential elections, Supreme Court nominations are a major issue for elites and a substantial concern for significant parts of the conservative movement. Other voters usually see the future makeup of the court as a side matter, or not essential to their decisions at all.
Justice Antonin Scalia’s death on Saturday will change this.
The issue of conservative judicial activism had already begun to take hold among liberals because of a series of fiercely ideological and precedent-shattering 5-to-4 decisions.
You read that right: After decades during which conservatives complained about “liberal judicial activism,” it is now conservatives who are unabashed in undermining progressive legislation enacted by the nation’s elected branches. Scalia will be remembered fondly on the right as the brilliant exponent of the theory of “originalism” that provided a rationale — or, in many cases, a rationalization — for decisions that usually fit conservative ideological preferences.
In 2010, Citizens United v. FEC rewrote decades of precedent on Congress’ power to regulate how campaigns are financed, facilitating a flood of money into elections from a small number of very wealthy Americans. Three years later, Shelby County v. Holder ripped the heart out of the federal government’s enforcement power in the Voting Rights Act. Last week, conservatives on the court halted the implementation of President Obama’s Clean Power Plan, his central initiative on climate change.
This is merely a partial list. The court’s conservatives have also regularly undercut the power of unions and the ability of citizens to wage legal battles against corporations.
Such decisions already had the potential of broadening the range of progressive constituencies invested in making the court a major election issue, including political reformers, African Americans, environmentalists and organized labor.
But Scalia’s death means that Obama or his successor — if that successor is a Democrat — could overturn the current conservative majority on the court, which could lead it to revisit many of the most troubling decisions of recent years.
And Republicans did themselves no favors in the coming argument by moving in a hard political direction even before most of the tributes to Scalia had been published — and even before the president had actually picked someone: Senate Majority Leader Mitch McConnell (R-Ky.) proclaimed that no Obama nominee would be considered, period.
“The American people should have a voice in the selection of their next Supreme Court justice,” McConnell said. “Therefore, this vacancy should not be filled until we have a new president.”
Republicans claimed precedent for ignoring court appointees from presidents on their way out the door. During Saturday night’s debate in South Carolina, Marco Rubio said that “it has been over 80 years since a lame-duck president has appointed a Supreme Court justice.” Ted Cruz made a similar point.
Well. A Senate controlled by Democrats confirmed President Reagan’s nomination of Anthony Kennedy on a 97-0 vote in February 1988, which happened to be an election year. By what definition was Reagan not a lame duck when he put Kennedy forward on Nov. 11, 1987?
Obama rejected the rejectionists. He said Saturday he would name a new justice and that there would be “plenty of time . . . for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote.”
My hunch is that Obama will try to put the Republicans’ obstructionism in sharp relief by offering a nominee who has won support and praise from GOP senators in the past. Three potential candidates who fit these criteria and won immediate and widespread mention were Merrick Garland and Sri Srinivasan, both judges on the U.S. Court of Appeals for the District of Columbia, and Jane Kelly, a judge on the 8th Circuit. (I should note that Garland is a dear friend of long standing.)
Whatever choice Obama makes, he will try to make it as hard as possible for Republican senators — especially those struggling for reelection this year in blue or purple states — to claim that he had picked an ideologue. Obama could also argue he had deferred to the Republicans’ Senate majority by offering a candidate whom many of them had supported in the past.
An extended court fight would allow progressives, once and for all, to make clear it is their conservative foes now using judicial power most aggressively. The partisan outcome of this year’s election just became far more important. This fall, Americans will not just be picking a new chief executive. They will be setting the course of the court of last resort for a generation.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, February 14, 2016
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