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“Ruth Bader Ginsburg; Eight Is Not Enough”: An Equal Division Is Essentially The Same As A Denial Of Review

Last month, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), feeling pressure over his role in an unprecedented Supreme Court blockade, wrote an op-ed in which he insisted the whole mess is unimportant. The “sky won’t fall” if the Supreme Court remains deadlocked for a year and a half – eight justices is plenty – so the Republicans’ unprecedented scheme isn’t worth all the fuss.

Actual justices on the high court appear to feel differently. Justice Ruth Bader Ginsburg acknowledged publicly yesterday that the institution she serves is, in fact, being hurt by having eight justices instead of nine. The Washington Post reported:

The Supreme Court has deadlocked 4 to 4 in several cases since Justice Antonin Scalia’s death in February. Ginsburg told judges at a conference in New York that the situation is unfortunate because it essentially means important issues are being denied Supreme Court review, according to a copy of her prepared remarks.

“That means no opinions and no precedential value; an equal division is essentially the same as a denial of review,” Ginsburg said.

She added, “Eight, as you know, is not a good number for a multi-member court.”

Ginsburg is hardly the only one who’s noticed. Slate’s Dahlia Lithwick noted last week that the Supreme Court can pretend that “it can manage just fine with eight justices,” but the fact remains that the institution is struggling to do its job.

Nobody on the court can say: “Please give us a ninth justice so we can get back to work.” That sounds like a plea for a Justice Merrick Garland. That is why it’s left to former Justice John Paul Stevens to say it for them. Even if all eight justices were to agree that between being unable to take any cases for next term, and being unable to decide major cases this term, things are not getting done at the court.

The same week, the editorial board of the New York Times added, “Every day that passes without a ninth justice undermines the Supreme Court’s ability to function, and leaves millions of Americans waiting for justice or clarity as major legal questions are unresolved…. Despite what Senate Republicans may say about the lack of harm in the delay in filling the vacancy, the court cannot do its job without a full bench.”

By all appearances, the Senate’s Republican majority doesn’t care – according to Sen. Orrin Hatch (R-Utah), it’s somehow fair to treat Merrick Garland unfairly – but they should.

 

By: Steve Benen, The Maddow Blog, May 27, 2016

May 28, 2016 Posted by | Chuck Grassley, Ruth Bader Ginsburg, Senate Republicans | , , , , , , | 1 Comment

“Trump Is Empowering Extremists In Congress”: His Campaign Will Do Damage Even If He Loses In A Landslide

Every once in a while, I have to remind folks of some basic facts about Alabama Senator Jefferson Beauregard Sessions III. This is one of those times.

In 1986 (otherwise known as the year of Iran-Contra), President Ronald Reagan nominated Beauregard the Third to serve as a judge on the U.S. District Court for the Southern District of Alabama. During the Judiciary Committee hearings on his nomination, it became clear that Sessions suffered from a common conservative fear: namely, mouth-rape.

Like so many of his Republican brethren, Sessions was terrified of having things “rammed down his throat” by the NAACP, ACLU, or some “un-American” and “Communist-inspired” guy who might decide to attack his home with a small arsenal.

When it became clear that Jefferson Beauregard the Third was not only named for the president of the Confederacy and one its more effective generals, but actually held the same beliefs in common with those two gentlemen, the Judiciary Committee declined to send his nomination to the floor. Alabama Senator Howell Heflin decided that Sessions was simply too racist to serve on the bench in Alabama, and so Reagan had to go back to the drawing board.

Of course, Sessions got his revenge by getting elected to the same Senate that had rejected him as a judge and then winning an appointment to the same Judiciary Committee that had declined to send his nomination to the floor. Keeping Alabama racism at bay is like trying to drown a cork, and Sessions soon defined himself as one of the most extreme and intemperate opponents of Latino immigration in this country’s power structure. He was also the first U.S. Senator to endorse Donald Trump, and that’s now paying dividends.

In the Senate, Jeff Sessions (R-AL) may not have been a backbencher, but his extreme positions on immigration relegated him to the fringe of his party during the 2013 immigration debate when many Republicans came out publicly in support of giving immigrants a chance to stay in the U.S. legally if not a path to citizenship. After the Republican National Committee’s autopsy report outlined the need to make inroads with Hispanic voters, Sessions’ positions were seen as a relic of the past. Now, he is smack dab in the middle of the Trump campaign…

…”He’s right now the congressional guy most connected to the campaign so right now if there is any question about anything we want to raise with the campaign, he’d probably be the guy you’d want to go through,” says Sen. John Thune (R-SD), a member of the GOP leadership team.

Something similar has happened over on the House side, where Lou Barletta of Pennsylvania and Rep. Scott DesJarlais of Tennessee have seen their profile and influence rise substantially as a result of their early endorsements of Trump.

Barletta rose to prominence as the mayor of Hazleton, Pennsylvania, where he enacted a series of local ordinances that were so anti-immigrant that they were ultimately ruled unconstitutional. His reward was a seat in the U.S. House of Representatives representing the Party of Lincoln.

Scott DesJarlais was recently dubbed “America’s worst congressman” by the National Review, and for once the Review had a good point.

In 2014, [DesJarlais] won his primary election by 38 votes after reports surfaced that DesJarlais, a doctor, “had sexual relationships with two patients, three coworkers and a drug representative.” It was reported that in one instance the anti-abortion advocate had encouraged one of the women he’d had a brief affair with to have an abortion.

I know that winning by 38 votes is not a lot, but is there anything a Republican can do besides agree to pay our bills on time that will get them beaten in a primary?

In any case, DesJarlais is no longer the House Republicans’ biggest embarrassment:

As establishment Republicans in Washington come around to a bombastic Trump, DesJarlais has emerged as a liaison between skeptics, the media and the Trump campaign, massaging fears that Trump is a loose cannon with promises that Trump is more reserved and thoughtful behind the scenes.

DesJarlais says he helped organize a meeting between the Freedom Caucus board and Trump’s campaign operative Paul Manafort last week. And before Trump met with House Speaker Paul Ryan last month, DesJarlais was one of a handful of members who sat down with the speaker and encouraged Ryan to unite behind the nominee.

As for Barletta, Talking Points Memo reports that he “now spends more time in the middle of the action and has sent his policy ideas over to Trump on immigration.”

If history is our guide, those ideas on immigration policy are probably unconstitutional.

So, we begin to see something take form, which is how the rise of Trump will change the Republican Party by empowering some of its worst people.

In this way, Trump’s campaign will do damage to our country even if he loses in a landslide.

And that’s not even considering what it will do to your neighbors who find ways to excuse Trump’s moral lapses and hate-baiting, thereby losing a tight grip on their moral compasses.

 

By: Martin Longman, Political Animal Blog, The Washington Monthly, May 25, 2016

May 26, 2016 Posted by | Donald Trump, Jeff Sessions, Republicans | , , , , , , , | Leave a comment

“Chuck Grassley’s Supreme Court Coup”: To Protect The Court From Politics, Seat Nine Chuck Grassleys And Go Home

Sen. Chuck Grassley is in a tough spot. The Republican from Iowa, who chairs the Senate Judiciary Committee, has to decide whether or not to grant Judge Merrick Garland a hearing or to continue the unprecedented obstruction of President Obama’s Supreme Court nominee. When a guy dressed like Ben Franklin is trolling you through town halls in Iowa, you know you’re in trouble.

But Grassley’s bigger problem is that he has indicated in the past that he knows better than to take a torch to the Supreme Court for the sake of partisanship. Like most court-watchers, Grassley is well aware that the institution is often political, and that it always has been. But like most court-watchers, he is also aware that the continued viability of the institution rests on the jagged myth that the court can transcend politics and those moments when the court actually lives up to that ideal.

Grassley surely knows better than most that the court has only the public’s esteem to shore it up—and he knows better than anyone that the public trust demands at least some confidence the judicial project is about more than brute power and party loyalty.

Grassley knows all that, but as pressure on him has ramped up to hold hearings—and a vote—on a seat that remains empty, he’s apparently decided it doesn’t matter anymore. On Tuesday, Grassley gave a speech that went after the Supreme Court as a purely political institution, pantsing the entire high court, and Chief Justice John Roberts by name, on the floor of the United States Senate. In so doing, he not only damaged the Senate’s relationship with the court in a way he may not be able to repair, but also exposed his own hypocrisy as chairman of a judiciary committee tasked with ensuring that the court can function.

Grassley went after Roberts specifically for having the temerity to give a speech before Justice Antonin Scalia’s death, where he noted that “the [nomination] process is not functioning very well” and that well-qualified nominees—including current Justices Samuel Alito, Elena Kagan, and Sonia Sotomayor—should have been confirmed along bipartisan lines.

No way, said Grassley. If politics have overtaken the nomination process, it’s the court’s fault. “What’s troubling is that a large segment of the population views the justices as political,” Grassley said. And whose fault is that? “The justices themselves have gotten political,” he declared. “And because the justices’ decisions are often political and transgress their constitutional role the process becomes more political.” In fact, Grassley added, (apolitically) his own constituents believe that Roberts “is part of this problem.”

“They believe that the number of his votes have reflected political considerations, not legal ones,” Grassley continued, adding with a flourish “so, physician, heal thyself.” To add a little mob flair, he then warned the chief not to insert himself into Garland’s nomination fight.

To be fair to Grassley here, we should consider: Isn’t he just telling the truth about politics influencing court opinions?

The problem with this defense is that the judiciary chair’s double-helix of hypocrisy gives him no standing to call out Roberts or any member of the court. Grassley has—at various times in his career—argued that the court is different from the other two patently political branches. For instance: In January 2006, with Alito having just been appointed to the high court, Grassley argued that the politics had nothing to do with the nomination process, nor the court. “The Senate’s tradition has been to confirm individuals who are well qualified to interpret and to apply the law and who understand the proper role of the judiciary to dispense justice,” he said. This coming from the man who is now arguing that politics is the reason we can’t have a hearing.

But the extra special hypocrisy sauce here is that Grassley now says that the only way to depoliticize the court would be to appoint nominees who conform their political views to those of the Republican Party. “Justices appointed by Republicans are generally committed to following the law,” he said. And then he argued that the court is too political because Republican nominees don’t act sufficiently politically. “There are justices who frequently vote in a conservative way,” he said. “But some of the justices appointed even by Republicans often don’t vote in a way that advances conservative policy.”

Wait, what? So the problem for Grassley isn’t “political” justices—it’s justices appointed by Republicans who don’t advance “conservative policy” 100 percent of the time. And with that, he revealed his real issue. His Senate floor attack isn’t about depoliticizing the court at all. It’s about calling out Roberts for being insufficiently loyal to the Tea Party agenda when he voted not to strike down Obamacare.

What is really being said here is that there is only one way to interpret the Constitution and that is in the way that “advances conservative policy.” According to Grassley’s thinking, a justice who fails to do that in every single case before him or her is “political” and damaging the court. By this insane logic, the only way to protect the court from politics is to seat nine Chuck Grassleys and go home. And to achieve this type of court he will stop at nothing, including trash talking the entire institution from the Senate floor and threatening the chief justice who will, because he is chief justice, decline to respond.

Again, remember back at the time of the fight over Alito when the same Sen. Grassley warned, “the Supreme Court does not have seats reserved for one philosophy or another. That kind of reasoning is completely antithetical to the proper role of the judiciary in our system of government.” What that seems to have meant in retrospect: There is only a single judicial philosophy and if I don’t get a nominee who shares that philosophy, I’ll happily slander the whole court.

Grassley’s aides like to claim that he believes in his heart that this unexpected election-year vacancy offers the country a rare opportunity for a national debate about the role of the Supreme Court. We have a forum for just such a debate. It’s called a confirmation hearing. But Grassley doesn’t want a debate. He wants a coup.

Speaking Thursday afternoon at the University of Chicago Law School on the court’s role, President Obama warned against exactly this form of dangerous and destructive politics. When people “just view the courts as an extension of our political parties—polarized political parties” he warned, public confidence in the justice system is eroded. “If confidence in the courts consistently breaks down, then you see our attitudes about democracy generally start to break down, and legitimacy breaking down in ways that are very dangerous.”

Sen. Grassley has made the choice to hold no hearings and have no vote for an eminently qualified jurist because—as he has now openly stated—there are only two legitimate justices on the Supreme Court, the two who agree with his viewpoint 100 percent of the time. Grassley, and the rest of his Republican colleagues who continue to refuse hearings and a vote on Merrick Garland, have seamlessly and shamelessly turned the entire judicial branch into their own, private constitutional snowglobe.

 

By: Dahlia Lithwick, Slate , April 7, 2016

April 11, 2016 Posted by | Chuck Grassley, Conservatives, Judiciary, U. S. Supreme Court Nominees | , , , , , , , , | 1 Comment

“Let’s Do Our Jobs”: Maybe It’s Time For The ‘Grassley Rule’

The Democratic line on the ongoing Supreme Court fight is pretty straightforward. Indeed, Sen. Elizabeth Warren (D-Mass.) summarized it well a couple of weeks ago when she told her Republican colleagues, “Do your job.”

For weeks, the Republican response has been rooted in semantics. Technically, the Constitution gives the Senate an “advise and consent” role in the confirmation process, but since the document doesn’t literally say senators have to vote on a nominee, the GOP argument goes, then maybe Republicans can do their jobs by refusing to do their jobs.

It’s a clumsy and unpersuasive pitch, but that’s the talking point and they’re sticking to it.

At least, that’s the argument now. Right Wing Watch yesterday dug up an interesting quote from Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), who said in 2005, in reference to judicial confirmations, “Let’s do our jobs.”

Eleven years ago, with a Republican in the White House, Grassley was emphatic that the Senate act quickly on the president’s judicial nominations, telling colleagues that slowing down the confirmation process was “like being a bully on the schoolyard playground.”

According to Grassley in 2005, for the Senate to do its job, George W. Bush’s nominees would have to receive up-or-down votes.

In May 2005, Grassley said to deny a senator an up-or-down vote on a judicial nominee would be to undermine a senator’s “constitutional responsibility.”

Perhaps, the right will argue, standards change when it’s a seat on the Supreme Court at stake. Maybe so. But the same Right Wing Watch report noted that when then-President George W. Bush nominated Samuel Alito to the high court Grassley issued a fascinating press release quoting Alexander Hamilton:

The Constitution provides that the President nominates a Supreme Court Justice, and the Senate provides its advice and consent, with an up or down vote. In Federalist 66, Alexander Hamilton wrote, “it will be the office of the President to nominate, and, with the advice and consent of the Senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose – they can only ratify or reject the choice he may have made.”

Grassley now believes, however, that he has the authority to block a qualified Supreme Court nominee from even receiving a confirmation hearing.

Obviously, 2005 Grassley would be outraged by 2016 Grassley. In fact, given Senate Republicans’ propensity for making up “rules” out of whole cloth, perhaps these new revelations could serve as the basis for a Grassley Rule: in order for senators to do their job, they actually have to consider Supreme Court nominees.

 

By: Steve Benen, The Maddow Blog, April 8, 2016

April 2, 2016 Posted by | Chuck Grassley, Merrick Garland, Senate Republicans, U. S. Supreme Court Nominees | , , , , | Leave a comment

“McConnell’s “Three No’s” Under Fire”: No Meetings, No Hearings, No Vote

I have to admit that Senator McConnell’s ability to keep his troops of Republican Senators in line over these last seven years has been what some might call “impressive.” The plan to totally obstruct anything President Obama and Democrats attempted to do meant that he had to get Senators from traditionally blue/swing states to go along. Time after time we witnessed his ability to do that.

Shortly after the death of Justice Scalia, McConnell announced the ultimate in total obstruction tactics. He issued three “no’s” to any nominee put forward by this President: no meetings, no hearings, no vote. But on this one, he hasn’t managed to make it stick.

A quarter of Republican Senators (16) have announced that they will meet with Obama’s nominee, Judge Merrick Garland. Last week, three Senators came out in favor of holding hearings: Kirk, Collins and Moran. And now, Senator Kirk has said that he would consider voting for Garland.

Sen. Mark Kirk on Tuesday became the first Republican to say he might be willing to vote for President Obama’s nominee to the Supreme Court.

“Obviously I would consider voting for him,” the Illinois senator told reporters before he met with the nominee, Judge Merrick Garland. “That’s the whole purpose.”

While not going as far as Kirk, Senator Collins indicated something similar.

“The President, whether Republicans like him or not, is our President until next January, until Inauguration Day and it just seemed to me that there was no basis for saying that no matter who the President nominates, we were not going to consider that individual.”…

Hearings and meetings “are the best way to thoroughly understand a nominee’s views,” Collins said. “Undoubtably, there will be issues that would arise in a hearing that would provide grounds for people who don’t want to vote for Judge Garland or in those who do.”

Obviously this isn’t enough of a break in McConnell’s troop discipline to get movement on hearings – much less a vote – on Judge Garland’s nomination. But the key figure in all this is Senator Chuck Grassley, who chairs the Senate Judiciary Committee. As Steve Benen reported yesterday, he is going to extraordinary lengths in his blue/swing state of Iowa to avoid public confrontation over his position. First of all, he is not publicly announcing his speaking engagements and/or meetings with constituents. Secondly, he is only visiting staunchly conservative areas of the state where he received 80-90% of the vote in his last election. Finally, even in those areas, he is facing “tough and repeated questions over his refusal to hold hearings on a nominee to the Supreme Court.”

It is anyone’s guess about whether the “no hearings” and “no vote” portion of McConnell’s plan will hold for the next seven months. But it is clear that the Majority Leader is facing some insurrection from the troops he had previously managed to keep in line.

 

By: Nancy Letourneau, Political Animal Blog, The Washington Monthly, March 30, 2016

March 31, 2016 Posted by | Merrick Garland, Mitch Mc Connell, Senate Republicans, U. S. Supreme Court Nominees | , , , , | Leave a comment

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