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“Secretly On The Ballot In November”: The Future Of The ‘Nuclear Option’ For Supreme Court Nominees

After the initial intense focus on President Obama’s determination to nominate a successor to Antonin Scalia and Senate Republicans’ determination to block him, it’s beginning to sink in that the struggle for control of the Supreme Court could be a complicated and drawn-out battle. As Juliet Eilperin and Robert Barnes of the Washington Post point out today, the next president could have more than one chance to appoint a justice, and both conservatives and liberals understand the stakes could be huge:

The Scalia vacancy technically gives Obama the chance to establish a liberal majority on the court for the first time in decades, but even if he manages to seat a new justice in the face of blanket GOP opposition, the victory could be fleeting …

Scalia’s death at age 79 shows the peril of making predictions about the Court’s future, but the age range among the current justices would suggest that a Republican successor to Obama could have greater impact on remaking the court than a Democrat, especially if Scalia’s seat stays vacant into the next administration. Simply put, the court’s liberal bloc is older and may offer more opportunities for replacement.

When the new president is inaugurated, Associate Justice Ruth Bader Ginsburg will be almost 84. Anthony Kennedy will be 80 and Stephen Breyer, 78. Replacing Ginsburg and Breyer, both appointees of President Clinton, with conservatives would instantly shift the court’s balance for years, even if an Obama’s appointee were to replace Scalia. (The next oldest justice is Thomas, who was nominated by George H.W. Bush and will be 68 this summer.)

Many conservatives, of course, hate Kennedy, too; he was the swing vote in upholding Roe v. Wade in 1992, and played a key role in the Court’s marriage-equality decisions.

But more fundamentally, partisan polarization and gridlock in Congress has significantly elevated the importance of non-legislative entities, including the federal courts and executive-branch agencies whose power the courts might choose to expand or restrain.  So control of the commanding heights of the Supreme Court is more important than ever.

What complicates the issue is the precedent set by Senate Democrats under Harry Reid in 2011 (Republicans had come close to taking the same action in 2005): the so-called “nuclear option,” removing the right to filibuster executive branch and non-SCOTUS judicial appointments. With both parties in the Senate steadily retreating from the ancient practice of deferring to the president’s choices for the High Court, and with the hot-button issues facing SCOTUS making “compromise” choices less feasible, the difference between having to muster 50 and 60 Senate votes to confirm a presidential nomination is increasingly momentous.  And for that reason, if either party wins both the White House and the Senate this November, going “nuclear” on SCOTUS appointments by getting rid of the filibuster is a very high probability (and even if it doesn’t happen, the threat of “going nuclear” can and will be used to force the minority party to be reasonable).

But the converse situation is worth pondering, too. If, to cite a lively possibility, Democrats hang onto the White House while Republicans hang onto the Senate, there is no way the Senate invokes the “nuclear option.”  Senate resistance to a progressive justice would likely stiffen in 2018, when Republicans will enjoy one of the most favorable Senate landscapes in memory. 25 of 33 Senate seats up that year are currently Democratic, including five in states Obama lost twice.  Add in the recent GOP advantage in the kind of voters most likely to participate in midterm elections, and the ancient tendency of midterm voters to punish the party controlling the White House, and the odds of a Democratic president being able to impose her or his will on the Senate on crucial SCOTUS nominations between 2019 and 2021 is very slim.

If Democrats want to shape the Court’s future, they’d do well not only to win the White House but to take back the Senate this November, and get rid of the SCOTUS filibuster in hopes that restoring it will be too controversial for Republicans even if they reconquer the Senate in 2018. By then, of course, Senate Republicans may be looking forward to their own ability to shape the Court after 2020 if they win back the presidency then. It’s going to be a chess game with big and continuing arguments over the rules.

 

By: Ed Kilgore, Daily Intelligencer, New York Magazine, February 29, 2016

March 1, 2016 Posted by | Democrats, Filibuster, Republicans, U. S. Supreme Court Nominees | , , , , , , , , | Leave a comment

“How To Make The Supreme Court More Accountable”: The Most Powerful, Least Accountable Public Institution In The Country

Justice Samuel A. Alito’s sister is a high-powered labor attorney who represents management in disputes with workers. Justice Elena Kagan’s brother, a teacher at an elite public school in New York, has protested the school’s admissions process because of low minority enrollment. And Justice Stephen G. Breyer’s son co-founded a tech company that broadcasts civil court proceedings.

Does having relatives involved in labor disputes, affirmative action battles, and cameras in courtrooms affect how Supreme Court justices decide cases and manage their institution? They say no, and we’re supposed to take them at their word. But is “trust us” really good enough for the nation’s highest court?

A confluence of recent events has made the Supreme Court the most powerful, least accountable public institution in the country. It is time to make the justices more accountable to the American people.

The court rules on wide-ranging issues fundamental to American life — where we can pray, who is eligible to vote and marry, how much regulation businesses should face, and who has access to health insurance. And with Congress gridlocked and relations between the legislative and executive branches at a historic nadir, the court’s opinions are binding and irreversible. So much for checks and balances.

In spite of this vast power, the justices have little accountability. Not only do they decide for themselves when to recuse themselves from cases in which they have conflicts; they also aren’t bound to a code of ethics the way the rest of federal judiciary is. They can decide how much information on investments and travel to release in their annual financial disclosure reports, and they determine when and where people can demonstrate near their building.

Yet for all the flaws and impenetrability at the Supreme Court, the problems could be solved rather quickly. Unlike the consensus required to make changes in Congress, the Supreme Court is largely in charge of its own rules — and Chief Justice John G. Roberts Jr. himself could usher in most of the vital changes needed, including tightening requirements on recusals, requiring the justices to adhere to the Code of Conduct for U.S. judges, posting disclosure reports online, providing advance notice for public appearances and permitting live audio and video in the courtroom.

Roberts has been loath to implement any changes. Years ago when he was asked about the benefits of permitting live broadcasts of oral arguments, Roberts replied, “It’s not our job to educate the public,” as if saying he was comfortable hiding behind the cast-iron doors in perpetuity.

A new organization I’ve launched, Fix the Court, will take on some of what the court should be doing itself. Each week, we release information online about the justices related to five issue areas — recusals, disclosures, ethics, public appearances and media and public access. But public pressure is also needed to encourage the justices to be more transparent.

You may not have known, for example, that Justice Clarence Thomas ruled on Bush v. Gore while his wife was collecting candidates’ resumes to recommend to a new Bush administration. Or that Justice Ruth Bader Ginsburg spoke at a National Organization for Women conference soon after ruling on a case in which the group had submitted a brief to the court. (Ginsburg sided with NOW in the case.) Or that just last year, Justice Antonin Scalia was part of the court majority siding with anti-abortion advocates who said a Massachusetts law allowing a buffer zone around abortion clinics violated the 1st Amendment — even though his wife had been on the board of a pro-life organization and served as a “crisis counselor” to pregnant women. These are but a few of the examples where the justices may not have exercised proper discretion in hearing a case. There are dozens more.

Mustering public support for reform is the first step, and that shouldn’t be too difficult: Despite the well-documented political divisions across the country, Republicans, Democrats and Independents are united in their desire for a more accountable Supreme Court. Recent polling found that more than 85 percent of Americans of all ideologies support requiring the justices to follow the judicial code of conduct from which they are currently exempt. Large majorities also support cameras in the courtroom and compelling the justices to post disclosure reports online.

The recent elections were a stark reminder of how responsive and accountable Congress and the president can be to the will of the public. Frustrated voters displayed little reluctance sending a message to Washington lawmakers, kicking some out and starting over.

Supreme Court justices, rightly, can’t simply be voted out of office. But the time has come to end the special rules that exempt them from scrutiny by the American public.

 

By: Gabe Roth, Executive Director of Fix the Court, The Los Angeles Times; The National Memo, December 4, 2014

December 5, 2014 Posted by | Federal Judiciary, U. S. Supreme Court | , , , , , , , , , | Leave a comment

“So When Is The Senate In Recess?”: An Extended Recess Broken Up By Several Pro Forma Sessions Is Still A Recess

Before the Circuit Court went all activist in the Canning case, everyone thought the question was defining what counted as a “recess.” On that issue, the Supreme Court had a clear answer today: “For purposes of the Recess Appointments Clause, the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business.”

That’s a nominal defeat for President Barack Obama, who had claimed that an extended recess broken up by several pro forma sessions is still a recess.

The history here is that a Senate with a Democratic majority used pro forma sessions every three days in 2007-2008 to prevent President George W. Bush from making recess appointments, and Bush didn’t contest the maneuver. Then, in 2011, the Republican majority in the House of Representatives tried the same workaround, which forced the Senate to stay “in session” because of the constitutional provision that when one chamber is in session, the other cannot adjourn for “more than three days.”

The Senate-initiated attempt to block recess appointments seemed dicey, but probably reasonable. The House-initiated obstruction, however, was constitutionally noxious. After all, the House has no constitutional role in presidential nominations. By refusing to recess, the Senate essentially is enforcing its role in advise and consent. That changes when lawmakers hold pro forma sessions instead of “real” sessions and enforce that role at their convenience. When the House does it, however, that chamber is being inserted into matters it has no business being involved in.

The court didn’t differentiate those two very different situations today, but Associate Justice Stephen Breyer reminded everyone that there is another option for combating the House: The Constitution allows the president to act if the two chambers cannot agree on adjournment. Although I argued strongly at the time that Democrats shouldn’t allow the House to veto nominations — and that therefore Obama should have acted — I believed that the unused Article II power of adjournment was the safest constitutional ground.

As it turns out, the House option is pretty much a moot question since Senate Democrats pushed through the nuclear option, which allows nominations to go through with a simple majority vote. The House option for obstruction was relevant only in cases in which the president and Senate majority were from one party, and the House majority and a Senate minority large enough to kill nominations by filibuster were from the other party. Given simple majority confirmation, the House no longer has the power to obstruct. I suppose it’s still true that a president and the Senate majority might prefer a simple recess appointment to going through the hurdles of confirmation, even if it’s guaranteed to happen, but that’s not as big a deal as the attempt to nullify entire agencies by the House in conjunction with a Senate minority.

To be sure, the Senate will still have the ability to refuse to confirm any nominee and to prevent recess appointments. But that was always going to be the case; the only thing at stake here (on the narrow question of what counts as a recess) was how inconvenient it was going to be for the Senate to do so. In the long term, odds are that future legislation will be written more carefully to prevent nullification by obstructing nominations, now that Republicans have revealed that such a weapon is available and will be used. Constitutionally, none of that is a big deal.

To get into the details, the question of what counts as a “recess” is complicated because the Constitution doesn’t offer a definition, and usage now and then is ambiguous. Both Breyer and Associate Justice Antonin Scalia discussed two meanings (recess between two sessions of Congress and recess within one session). But, in fact, there are three usages: everyone in and around Congress knows that “recess” can mean both short periods when Congress is out for a weekend, the night, or even lunch, or it can mean the longer “district work periods” that last for a week (with surrounding weekends) or longer. Without explaining it very well and therefore opening himself up to Scalia’s claims that it’s just an arbitrary ruling, Breyer is basically attempting to follow that perfectly common-sense, ordinary usage distinction. That is the correct way to go; it’s the only option that really conforms to Senate practice.

That leaves the question about the pro forma sessions. Breyer puts a fair amount of weight on the ability of the Senate to transact business (by unanimous consent, or presumably by a voice vote if it wasn’t challenged) during these sessions. That’s true, but it’s also true that everyone talks and acts as if the Senate is in a normal recess during those periods. So the court has erred, but it’s a close call, and relatively little is at stake in this portion of the decision, especially in the post-nuclear era.

 

By: Jonathan Bernstein, Ten Miles Square, Washington Monthly, June 27, 2014

June 29, 2014 Posted by | Congress, Senate, Supreme Court | , , , , , | 1 Comment

“The War Against American Citizens”: Metastasizing Money Drowns Out The Voices Of Actual Americans

In 1971, before becoming a Supreme Court justice, Lewis F. Powell Jr. penned a memo to his friend Eugene Sydnor of the U.S. Chamber of Commerce advocating a comprehensive strategy in favor of corporate interests. Powell wrote, “Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.”

In last week’s ruling in McCutcheon v. Federal Election Commission , the Supreme Court was not a mere instrument so much as a blowtorch, searing a hole in the fabric of our fragile democracy.

This predictable decision from the 1 Percent Court to repeal federal limits on overall individual campaign contributions overturns nearly 40 years of campaign finance law.

It also completes a trifecta of rulings that started in 1976 with Buckley v. Valeo, and the Midas touch of judicial malpractice, turning money into speech. As Justice Stephen Breyer wrote in an impassioned dissent to McCutcheon, taken together with the 2010 ruling in Citizens United, “today’s decision eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”

This, foreshadowed in Powell’s decades-old memo, has always been the right’s plan — to shift the system in favor of the wealthy and powerful. Put it this way: If the limit hadn’t existed in 2012, the 1,219 biggest donors could have given more money than over 4 million small donors to the Obama and Romney campaigns — combined.

But McCutcheon was not the only body blow to our democracy, in what was possibly the worst week in the history of campaign finance reform.

New York Gov. Andrew Cuomo (D) let his proposal for publicly financed statewide elections die after years of promises to restore the public trust. In a state that’s often a laboratory of democracy, the governor has agreed to what is little more than a clinical trial — a single comptroller’s race this year — that some experts claim is “designed to fail.”

The American experiment seems to be run by a smaller and smaller control group as billionaires — like the Koch brothers and Sheldon Adelson — get expanding seats at the shrinking political table.

NASCAR drivers wear the corporate logos of their sponsors on their suits. The justices who sided with plutocracy ought to wear sponsorship logos on their robes, too.

Conversations about court rulings and policy proposals can obscure what’s really at stake: the well-being of the American people. The Court and Cuomo gave the 1 percent even more opportunities to, effectively, buy the kind of access to elected officials that most voters and small donors could never dream of. The weakening of campaign finance laws tracks with the widening income gap, as the wealthiest have secured policies, from lower taxes to deregulation — that enrich themselves at the expense of everybody else.

This, to paraphrase Massachusetts Sen. Elizabeth Warren (D), is why the system is rigged. Metastasizing money drowns out the voices of actual Americans, and suffocates policies such as raising the minimum wage and equal pay that would benefit workers. It also skews the playing field, not just between the haves and have-nots, but also between male and female candidates.

We live in a world where elected officials care less about checks and balances and more about their checkbooks and balance sheets. Where fundraising is more important than legislating. Where public policy is auctioned off to the highest bidder.

That’s why getting money out of politics is not a partisan issue. According to Gallup, nearly eight out of 10 Americans think campaigns should be limited in what they can raise and spend, while a 2012 CBS poll shows that about two-thirds of Americans believe in limiting individual campaign contributions.

Hopefully, popular outrage will boost the pressure for reform; there has already been a sharp increase in grassroots action. In the hours and days after the ruling, coalitions such as Public Citizen have mobilized thousands of people in 140 demonstrations across 38 states to protest the McCutcheon ruling. Nearly 500 local governments and 16 states and the District have called for a constitutional amendment to wrest our elections back from the elite. Move to Amend, which supports a constitutional amendment to reverse Citizens United and McCutcheon, and end the fiction that corporations are people and money equals speech, already has over 300,000 members.

A resolution from Sen. Tom Udall (D-N.M.) — with a House companion introduced by Rep. Jim McGovern (D-Mass.) — calling for a constitutional amendment to allow Congress to fully regulate campaign contributions, and to encourage states to regulate and limit campaign spending, already had 29 co-sponsors and picked up 3 more on the day the Roberts Court announced its decision. Citizens in New York, who are furious at Cuomo for failing to enact reform, are renewing the drive to hold him accountable for his actions. And even while pushing for a constitutional amendment — an uphill battle —supporters of clean elections in Congress and outside are fighting for increased disclosure and public financing of elections.

The all-out assault against campaign finance reform, on the heels of the Court’s gutting of the Voting Rights Act in Shelby County v. Holder , is just one more example of our democratic system in crisis. “Under the leadership of Chief Justice John Roberts,” my Nation colleague Ari Berman recently wrote, “the Supreme Court has made it far easier to buy an election and far harder to vote in one.” But the fear of democracy’s premature death doesn’t look like it’s silencing people; instead, it is inspiring a renewed commitment to fight for its survival.

 

By: Katrina vanden Heuvel, Opinion Writer, The Washington Post, April 8, 2014

April 9, 2014 Posted by | Campaign Financing, Democracy, SCOTUS | , , , , , , | 2 Comments

“From The Roberts Fab Five”: With No Accountability Or Liability, Generic Drug Companies Get Even More Immunity

Monday’s U.S. Supreme Court ruling immunizing drug companies from lawsuit for egregious injuries wasn’t terribly surprising for those who have been following along. Two years ago, in a case called PLIVA v. Mensing, the U.S. Supreme Court held that generic drug companies were largely immune from lawsuits alleging their failure to warn of harmful consequences. On Monday, in a 5-4 ruling along ideological lines, the court extended this holding to apply to other types of claims against generic drug manufacturers, and held that a federal statute precluded suit by a woman who incurred burns on 60 percent of her body and was rendered legally blind by an alleged drug defect.

This ruling was a predictable addition to the line of cases immunizing big business from liability, but it was not an inevitable follow-up to PLIVA. In conjunction with two other rulings Monday that stomped on workplace protections for minorities and women, this decision brings the top corporate lobby’s win rate before the U.S. Supreme Court term to 13-3. With one case remaining in which the Chamber of Commerce weighed in, it is clear that however that final case is decided, big business won very big at the expense of the little guy.

As has been a frequent practice by the Roberts Court, the five-justice majority found that federal law trumped state law protecting patients, over protestations from the four dissenting justices that both federal and state law could co-exist. Interpreting a federal law requirement that generic drug companies simply follow the warnings and design of the brand name drug, the court held that generic companies cannot be held liable for its flaws. This means that a generic company that distributes a dangerous product has no obligation to simply stop selling that drug, and can go on dispensing the potentially dangerous substance with immunity. As Justice Sonia Sotomayor wrote in dissent, the court justified its holding through “an implicit and undefended assumption that federal law gives pharmaceutical companies a right to sell a federally approved drug free from common-law liability.”

The majority holding in this case overturned a $21 million verdict — upheld by the appeals court — for the plaintiff’s alleged injuries. Now, the company owes nothing. With 80 percent of U.S. prescriptions filled by generics, this ruling not only wipes away generic manufacturers’ responsibility to halt the sale of dangerous products; it also impacts safety for the great majority of consumers.

According to a Public Citizen report released Monday, much of the safety information about a drug emerges after FDA approval, once the drug enters the market. And it is often not the case that the FDA revisits approval. As Justice Stephen Breyer explains in his dissent, it is “far more common for a manufacturer to stop selling its product voluntarily after the FDA advises the manufacturer that the drug is unsafe and that its risk-benefit profile cannot be adequately addressed through labeling changes or other measures” than for the FDA to formally withdraw approval based on new information.

In the wake of the PLIVA decision, members of Congress had asked FDA to revise its regulations in ways that will now be doubly essential to consumer safety. In the absence of clarity from Congress or the FDA, today’s decision paves the way for a whole lot of malfeasance.

 

By: Nicole Flatow, Think Progress, June 24, 2013

June 26, 2013 Posted by | Big Pharma, SCOTUS | , , , , , , , | 1 Comment

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