“Republicans Have Crippled The Supreme Court”: America’s Highest Court Is Under Severe Strain Because Of The GOP
This is what a broken Supreme Court looks like.
Three weeks before the official end of the 2015-16 term, there are 22 cases still outstanding. On Monday, with several high profile cases eagerly anticipated by court-watchers, the Court only announced two relatively minor opinions. It looks likely that the Court will need to extend its own deadline.
And then, on the same day, the bizarre news that, Oops, one of the two issues the Court said it would hear in a death penalty case next fall – it won’t actually hear. Never mind!
That kind of sloppiness is rare. On the merits, it’s not that important, but procedurally, it’s a highly unusual screw-up.
It’s impossible not to see these events in the context of a short-handed Court, now four months without its full complement of judges, doing its best to stay on top of things. And not always succeeding. All of this, of course, is due to the completely unprecedented stonewalling by Senate Republicans of a perfectly qualified candidate to fill that vacancy.
In recent weeks, there have also been more subtle, but more destructive, consequences of the Senate’s oath-breaking, Constitution-scorning inaction.
Last week, the liberal advocacy organization People for the American Way published a report analyzing the effects of two tie decisions that have come down since February. In one, the Court left in place a split between the Sixth and the Eighth Circuits regarding spousal guarantees for bank loans. Despite all the resources invested in resolving this legal issue, federal law now remains uneven; requiring such guarantees is legal in some circuits, illegal in others. To be sure, bank loan guarantees is not a high-profile issue, but it is one that affects thousands of people every year.
More politically charged was the Frierichs case, which the Court left unresolved on March 29. That case was about whether public-sector unions could require non-union employees to pay a “fair share fee” to pay for collective bargaining and other costs. Without such fees, progressives argue, the unions might go out of business, ultimately hurting employees. With them, conservatives complain, they compel public employees to effectively join a union and support its political activities; that violates the First Amendment.
Who’s right? The Court was deadlocked, so we don’t know the answer.
Then there are the cases like Zubik v. Burwell, in which the Court, rather than decide a contentious issue about religious exemptions and Obamacare, proposed and ordered its own makeshift compromise, resolving the particular dispute but leaving key questions unresolved about religious exemptions, which is driving controversies in North Carolina, Texas, Tennessee, Indiana, and around the country.
It’s also quite possible the Court will either deadlock or punt on some of the major cases remaining this term, including Whole Women’s Health, a case about Texas’s abortion restrictions. Assuming Justice Kennedy votes to uphold the regulations, that will place the Court in a 4-4 split, and leave the Fifth Circuit’s decision – which mostly upheld the restrictive rules – in place.
But here’s where it gets even more complicated. Last June, the Supreme Court placed an injunction on enforcement of the law, pending the outcome of the case. So what happens if the Court deadlocks? Is that an “outcome,” or no outcome at all?
Functionally speaking, allowing the Fifth Circuit opinion to stand means the Texas law is Constitutional. And that, according to experts, would require the majority of abortion clinics in Texas to close. A 4-4 decision may sound like a tie, but there’s no tie when it comes to those clinics, and the women who use them. They’re either open or they’re closed – and it’s not at all clear why one side should prevail in a tie.
Worst of all, this supreme dysfunction may become the new normal. As Laurence Tribe and Joshua Matz wrote recently in the Washington Post, it’s quite plausible that confirmation stonewalling will become commonplace anytime there is divided government in Washington. It’s not as if the Democrats are just going to forgive and forget – they’ll fight fire with fire. (This, incidentally, is one of many reasons Fred Barnes’s ludicrous celebration of the anti-Garland stonewall was so myopic.)
And it’s not even just the Supreme Court; as we reported earlier, the Republican-created “judicial emergency” extends to lower courts as well, with a record number of vacancies going unfilled. Mainstream GOP leaders may be criticizing Donald Trump for attacking a Mexican-American judge, but they are attacking the entire judicial system.
So this is what a broken Supreme Court looks like: behind schedule, making careless mistakes, deadlocking, contorting itself to achieve consensus, and sometimes failing to fulfill its Cconstitutional responsibility to maintain the rule of law. Senate Republicans have acted like the Garland stonewall presents just a small inconvenience in the service of “letting the people decide.” But in fact, it is a full-on fiasco. Its only positive outcome would be the generation of enough rage to throw the bastards out.
Several years ago, a judge wrote that when, as in cases of recusal, “The Court proceeds with eight Justices,” it “rais[es] the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case” and “impairs the functioning of the Court.”
That judge was Justice Antonin Scalia.
By: Jay Michaelson, The Daily Beast, June 7, 2016
“Not Even Their Own Voters”: Republican Blockade Failing To Persuade American Mainstream
The Washington Post observed this week that Democrats “are winning the Supreme Court fight over Merrick Garland. Big time.” Dems aren’t exactly succeeding in convincing Republicans to end their unprecedented Supreme Court blockade, but the party has apparently fared pretty well in the court of popular opinion.
The NBC News/Wall Street Journal poll started asking an important question soon after Justice Antonin Scalia passed away in February:
“Recently, a Supreme Court Justice passed away leaving a vacancy on the court. President Obama has nominated a new person to serve on the U.S. Supreme Court. Would you prefer the U.S. Senate vote this year on the replacement nominated by President Obama or leave the position vacant and wait to vote next year on the replacement nominated by the new president or do you not have an opinion one way or the other?”
When the question went to the public just a few days after Scalia’s death, Americans were closely divided: 43% said they’d like to see the Senate vote this year on the Supreme Court’s vacancy, while 42% said they’d prefer to see the vacancy filled next year by a new president.
A month later, in March, the numbers shifted a bit in the Democrats’ favor. This month, in a poll that was in the field last week, they shifted even more. Now, a 52% majority of Americans want a vote this year, while 30% want to leave the seat vacant until next year.
What was a one-point advantage for the White House’s position in February is a 22-point advantage now. A closer look suggests even Republican voters are starting to shift away from their own party’s position.
At least for now, there’s no evidence to suggest Senate Republicans care at all about public opinion. GOP leaders very likely expected their blockage, which has no precedent in the American tradition, would be unpopular, but they decided to go with it anyway. I doubt poll results like these shock anyone.
But if you’re one of the vulnerable Senate Republican incumbents worried about your re-election prospects, and you were counting on the vaunted GOP Messaging Machine to win over the American mainstream on your party’s Supreme Court gambit, the latest evidence serves as a reminder: Republicans aren’t persuading anyone, not even their own voters.
That may not be enough to convince GOP senators to act responsibly towards a compromise nominee, but it should be enough to make some senators very nervous.
By: Steve Benen, The Maddow Blog, April 21, 2016
“Hardly Unprecedented”: On Immigration, Law Is On Obama’s Side
The legal controversy surrounding the Obama administration’s immigration enforcement policies will soon come to a head when the Supreme Court justices hear the case United States v. Texas on Monday. Texas claims that the president’s executive decisions lack legal sanction by Congress and have injured the state.
But whether or not you like President Obama’s actions, he has operated under longstanding provisions of law that give the executive branch discretion in enforcement. This presidential prerogative has been recognized explicitly by the Supreme Court. Moreover, the nature of immigration enforcement and the resources (or lack thereof) appropriated by Congress necessitate exactly the type of choices that the president has made.
Congress has repeatedly granted the executive branch broad power in enforcing immigration laws. The 2002 law creating the Department of Homeland Security explicitly said the executive should set “national immigration enforcement policies and priorities.” The Supreme Court has recognized the leeway Congress gives the executive branch in deportations. In a 2012 majority opinion written by Justice Anthony M. Kennedy and joined by Chief Justice John G. Roberts Jr., the court noted that “a principal feature of the removal system is the broad discretion exercised by immigration officials,” including the decision “whether it makes sense to pursue removal at all.”
Setting enforcement priorities is vital to the effectiveness of our immigration laws. Congress can’t anticipate every situation. This is why the Supreme Court recognized in 1950 that immigration law is an area where “flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program.”
The immense moral and legal consequences of a deportation campaign targeting up to 11 million undocumented immigrants are obvious. Even Americans whose frustration has overcome their compassion and led them to support the harshest immigration enforcement would be likely to reconsider if they actually saw such an operation in action.
A huge roundup like that would require an extraordinary expansion of federal law enforcement capabilities and resulting intrusions into American society. But in reality, there is no prospect for such a campaign because Congress has not made available more than a small fraction of the necessary money and manpower.
This is why, by its nature, immigration enforcement requires executive discretion.
The administration’s initiatives allow Homeland Security officials to forgo deportation, on a case-by-case basis, of undocumented residents who came here as children before June 15, 2007, and of certain undocumented parents of children who are American citizens or legal residents. Both are in keeping with similar programs put in place by both Republican and Democratic presidents dating from the Eisenhower administration.
In 1990, for example, under President George H.W. Bush, the immigration service, relying in part on authority dating from the Reagan administration, offered extended voluntary departure and work authorization to the spouses and children of aliens who had previously been granted legal status.
President Obama’s actions, therefore, are hardly unprecedented. There are two major differences. First, he gave speeches advocating for explicit programs with names, rather than relying on subtler agency direction.
Second, immigration policy has been caught up in today’s hyper-partisanship, where a strident anti-immigration tide within the Republican Party overwhelms all bipartisan compromise. All 26 state officials who have challenged the administration’s executive actions in the Supreme Court case are Republicans, and last month the G.O.P.-led House of Representatives voted to file an amicus brief on behalf of the entire House.
From these howls of outrage, you wouldn’t know that the Obama administration has vastly exceeded the deportations under President George W. Bush. And Mr. Bush vastly exceeded those of President Clinton. President Obama’s directives to focus enforcement efforts on those who have committed crimes in the United States and recent border crossers are a rational executive prioritization, given the resources and the realities.
These facts undercut Texas’s argument that it is unduly burdened by the president’s decisions. With deportations aimed at criminals and new border crossers, we would seem close to an optimal state-friendly federal immigration policy.
When the president took his executive action on immigration, he was not flouting the will of Congress; rather, he was using the discretion Congress gave him to fulfill his constitutional duty to “take Care that the Laws be faithfully executed.”
By: Richard G. Lugar, Represented Indiana in the United States Senate from 1977-2013, President of the Lugar Center; Op-Ed Contributor, The New York Times, April 18, 2016
“Billionaires Try To Buy The Supreme Court”: Hiding Behind Tax Laws To Avoid Revealing Their Identities
“Let the people decide” is the refrain of Republicans opposed to holding hearings for Supreme Court nominee Judge Merrick Garland, but they’re being bankrolled by an anonymous collection of billionaires—1 percenters so cowardly that they’re hiding behind tax laws to avoid revealing their identities.
Case in point: the “Judicial Crisis Network,” the right-wing front organization doing ad buys across the country to oppose Judge Garland getting a hearing. JCN is one of many 501(c)(4) “social welfare” organizations on the right and the left, and C4s don’t have to disclose their donors.That is the major reason that political spending by C4s increased more than 8,000 percent between 2004 and 2012.
That doesn’t mean we don’t know anything about C4’s like JCN, however. Thanks to a 2015 investigation by the non-partisan Center for Responsive Politics, we do know it was started in 2005 (as the “Judicial Confirmation network” meant to promote Bush’s judicial appointees) by a group of arch-conservatives including Ann Corkery. Corkery isn’t listed on the JCN’s website, perhaps because the group doesn’t want “the people” to know she is also member of the far-right, literally self-flagellating Catholic order Opus Dei; a former director of Bill Donohue’s ultra-right Catholic League; and a board member of Hobby Lobby’s law firm, The Becket Fund, although her bio has been removed from Becket’s website too.
Conveniently, Corkery also directs JCN’s leading funder, the Wellspring Committee.
Who funds the Wellspring Committee? Well, here’s where things get interesting.
Turns out, Wellspring was founded in 2008 by none other than the infamous Charles and David Koch, together with their political Svengali, Richard Fink. According to Kenneth Vogel, author of the book Big Money: 2.5 Billion Dollars, One Suspicious Vehicle, and a Pimp, Wellspring raised $10 million from attendees at the Kochs’ donor seminars, right after it was founded.
How much and from whom we don’t know.
And that’s precisely the point. Indeed, so secretive is the Wellspring Committee that Jane Mayer’s masterful 449-page tome on the Kochs, Scaifes, and other mega-donors doesn’t even mention it. One insider told Vogel, “Wellspring would never have put their name on anything.”
And these are the people saying “let the people decide.”
From the beginning, Wellspring was set up as a dark-money conduit, effectively laundering billionaire donations so no one would have to be accountable for them. Wellspring donated $7.8 million in 2008, for example, in part to other Koch-funded fronts like Americans for Prosperity.
But Wellspring was different in one key respect. Unlike most of the libertarian “Kochtopus”—which would eventually fund the Astroturf Tea Party movement—Wellspring worked closely with the Republican establishment. Corkery herself was a co-chair of the National Women for Mitt Finance Committee. The operations were initially run by Rick Wiley, a former Republican National Committee official. Wellspring also coordinated with Republican mega-donors, including Sheldon Adelson’s Freedom’s Watch.
The marriage didn’t last long, though. After the 2008 election loss, the Koch brothers turned back to their roots, funding front groups like Americans for Prosperity and Center to Protect Patient Rights to oppose Obamacare and the Tea Party movement to oppose mainstream Republicans.
From 2008 to 2011, Wellspring raised $24 million but not one donor’s name is known. (There are rumors that its funders now include the Templeton Foundation and hedge fund mogul Paul Singer, both contacts of Corkery’s.) Intriguingly, however, 10 of Wellspring’s grantees (in the period 2008-11) also received money from the Koch-funded Center to Protect Patient Rights, and Wellspring works with consultants who used to work with Koch Industries.
Whoever is paying for it, we do know that Wellspring is giving JCN $7 million a year, the lion’s share of that group’s budget, and that Corkery’s husband Neil is JCN’s treasurer. JCN, in turn, announced a $3 million campaign to oppose any Supreme Court confirmation hearings—just the latest of its big spends on judicial battles across the country.
In other words, the leading opponents of Judge Garland’s confirmation aren’t citizens concerned about democracy, but a front organization started by a secretive religious extremist and funded by anonymous members of the Koch brothers’ network. Let the people decide, indeed.
Oh, and by the way, C4s like Wellspring and JCN can only spend up to 49.9 percent of their expenditures on politics: the rest is supposed to promote “social welfare.” But since a judicial campaign isn’t technically a political campaign, these expenditures actually count as Wellspring’s non-political “social welfare” expenses. Because of course this has nothing to do with politics.
The further one digs into this miasma of hypocrisy, wealth, and secrecy, the more incestuous it all becomes. For example, it turns out, according to the Center for Responsive Politics, that Neil Corkery, in addition to JCN, was also “president of its allied Judicial Education Project, and executive director of a charity called the Sudan Relief Fund, all of which paid him salaries; but he also drew paychecks from at least four other organizations: the anti-gay union National Organization for Marriage, ActRight Action, the Catholic Association Foundation, and Catholic Voices. His total earnings were almost $450,000 and his weekly workload was 105 hours in the first half of 2012.” He is also linked to the C4 group called the Annual Fund, itself launched in 2010 with a $2.4 million grant from Wellspring.
Sometimes the “vast, right-wing conspiracy” isn’t really that vast.
It is, however, deeply hypocritical. If the mantra of the anti-Garland crowd is “let the people decide,” why won’t they let the people know who they are? Why the layers of obfuscation and secrecy? If the Wellspring Committee funders really care about democracy, they’ll stop hiding behind tax regulations and shell corporations, and proudly disclose who they are and what they want to do.
Unless, of course, they know the people would decide to run them out of Washington.
By: Jay Michaelson, The Daily Beast, March 29, 2016
“Outsourcing Constitutional Responsibilities”: Senate Republicans Will Ignore Court Nominee, But RNC Won’t
Any day now, President Obama is expected to announce his nominee to fill the vacancy on the Supreme Court, and the political battle lines have already been drawn. On Capitol Hill, Senate Republicans remain committed to a partisan blockade, unlike anything ever seen in American history, that calls for the rejection of any presidential nominee, regardless of qualifications or merit.
But while the Senate’s Republican majority intends to ignore the White House’s choice, the Republican National Committee intends to do the opposite. The Associated Press reported this morning:
The Republican Party is launching a campaign to try to derail President Barack Obama’s nominee to the Supreme Court, teaming up with a conservative opposition research group to target vulnerable Democrats and impugn whomever Obama picks.
A task force housed within the Republican National Committee will orchestrate attack ads, petitions and media outreach…. The RNC will contract with America Rising Squared, an outside group targeting Democrats that’s run by a longtime aide to GOP Sen. John McCain.
RNC Chairman Reince Priebus said his attack operation would “make sure Democrats have to answer to the American people for why they don’t want voters to have a say in this process.” Priebus added that the White House is poised to “break with decades of precedent.”
Republicans, the RNC chair went on to say, are “going to vet that person and put their real record on display.”
At face value, most of the RNC’s rhetoric is plainly laughable. Obviously, no one is trying to deny voters a role in the process – voters are the ones who elected President Obama (twice), giving him the authority to act. It’s equally obvious that the “decades of precedent” talking point is brazenly untrue, as even some Senate Republicans have been willing to acknowledge.
But just below the surface, there’s something even more ridiculous going on.
For example, the RNC is going to have a tough time pitching their opposition to the unnamed nominee as sincere and principled if the party launches its partisan war against him or her before knowing who the nominee is. There’s an important difference between, “This is a horrible choice,” and “We have no idea who the choice will be, but we’re sure it’ll be horrible.”
It’s the sort of posture that leads more to eye-rolling than meaningful debate.
Perhaps more importantly, the Washington Post’s Greg Sargent raised an overlooked detail.
Ideally, of course, [the vetting of the nominee] is what would happen if the Senate were to hold hearings on that person. But that might afford the nominee a chance to directly respond to his or her Republican cross-examiners in a high profile setting (as opposed to only having Democratic groups mounting all the pushback, which of course they will also do, once there is a nominee). Direct exchanges between the nominee and Republican Senators, alas, might reflect well on that person. And so the only “vetting” and examination of the nominee’s “real record” will be undertaken through the RNC and associated GOP-aligned groups.
That’s not meant as sarcasm. It’s the actual Republican party-wide position right now.
Quite right. Under the American political process, the Senate is supposed to oversee the formal vetting of a Supreme Court nominee. In 2016, however, Senate Republicans don’t want to – so they’re outsourcing the vetting to the Republican National Committee.
What should be done by senators and officials – people who are ultimately accountable to the public – will instead be done by partisan operatives.
There is no precedent for anything like this in the American tradition. Senate Republicans and the RNC evidently don’t care.
By: Steve Benen, The Maddow Blog, March 14, 2016
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