What Obama’s winter vacation plans should be

In case you doubted that Senate Republicans’ campaign of obstruction against Supreme Court nominee Merrick Garland has stunk of bad faith from the outset, recent statements from several high-ranking Senate Republicans should put your doubts to rest. The emerging plan seems to be not only to deny President Obama the opportunity to fill the ninth seat on the Court, but to obstruct anyone put forth by Hillary Clinton as well. We have been treated to fatuous rhetoric about how respect for democracy requires that the vacancy be filled by the new president, but now it seems that this principle, dubious as a matter of history or constitutional law, will evaporate in light of the likelihood of another Democratic president.

Here’s Ted Cruz on the subject:

“I think there will be plenty of time for debate [on whether to consider Clinton’s nominees]…. There is certainly long historical precedent for a Supreme Court with fewer justices. I would note, just recently, that Justice Breyer observed that the vacancy is not impacting the ability of the court to do its job. That’s a debate that we are going to have.”

(It turns out that Breyer wasn’t quite as sanguine about the prospect of an eight-member Court as Cruz made him sound. Justices Sotomayor and Ginsburg are decidedly more hostile, and even Justice Thomas has indicated dissatisfaction with the status quo.)

Here’s John McCain promising to be “united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.” He later tried to walk back that statement, claiming that he promised only to scrutinize her nominees closely rather than bar their consideration altogether, but you can decide whether that more charitable reinterpretation has more credibility than the initial statement.

And as if on cue, a number of legal commentators have rushed in to lend a patina of intellectual respectability to this shabby effort. There’s Cato’s Ilya Shapiro arguing at The Federalist that the Senate would be within its rights never to confirm another Supreme Court nominee, no matter the consequences to the judiciary. There’s Eric Segall making the case that an eight-member Court would be preferable to a nine-member Court, in that the former would have to achieve higher levels of consensus on controversial cases. And there’s Michael Stokes Paulsen writing at National Review about how shrinking the Court to six, either by legislation or Senate commitment to atrophy, would produce a Court less prone to judicial activism, or at least the bad kind that produces decisions liberals like, because two-thirds is greater than five-ninths.

Does anyone really believe that these arguments would have surfaced had a Republican presidential nominee been primed to assume the presidency? In that scenario, we’d be hearing about how elections have consequences, and how FDR demonstrated the evils of tinkering with the size of the Supreme Court for short-term partisan or ideological advantage. (It’s telling that the defenders of obstruction have to go back to the Reconstruction era to find examples of obvious manipulation.) Ultimately, though, it’s the senators, not the law professors, who whose views will prove more consequential for the Court’s fate. And we’ll have more clarity about their fate after next week’s election.

So President Obama’s winter break plans should be straightforward: Have a nominee lined up for every single federal judicial vacancy. If voters elect Clinton and a Democratic Senate majority–if we get the latter, we’ll almost certainly have gotten the former too–then he should spend the last two weeks of his presidency pushing nominees through. It’s not as though he’ll have much else to do, in all likelihood, and Clinton would get to conserve political capital for other battles she’ll be fighting. (If voters go in a different direction, then all bets are off, of course.)

Some possible objections:

  • What about Hillary Clinton? Won’t she feel miffed about being denied the opportunity to fill these seats, should she win election? This problem could be solved easily by Obama’s inviting Clinton to make the judicial selection process a joint effort.
  • Will nominee quality be compromised by such a rushed effort? There are compelling arguments that the vetting process has gone too far in the level of scrutiny to which potential nominees are subjected. But even if you think the level of scrutiny is appropriate, it’s hard to believe that the Obama administration doesn’t have a list of already-vetted candidates upon whom it could draw. The presence of such a list would be testament to the effects of years of obstruction for obstruction’s sake.
  • Won’t inter-party comity in the Senate be damaged by such hardball? (Long pause to let convulsive laughter subside…) In the short run, there could be damage to what’s left of comity. But in the long run, seeing evidence that obstructing moderate nominees has political costs might lead to a more cooperative Republican caucus.

 

So, President Obama, if you want one more legacy item (or two, if ISIS gets crushed before January 20, 2017), here’s your opportunity. At the risk of sounding cliched, don’t throw away your shot.

Court strikes down Texas abortion restrictions

Turns out there are limits to how much anti-abortion propaganda  Justice Anthony Kennedy can swallow before his digestive system revolts:

The Supreme Court on Monday struck down parts of a restrictive Texas law that could have reduced the number of abortion clinics in the state to about 10 from what was once a high of roughly 40.

The 5-to-3 decision was the court’s most sweeping statement on abortion rights since Planned Parenthood v. Casey in 1992. It applied a skeptical and exacting version of that decision’s “undue burden” standard to find that the restrictions in Texas must fall.

The Texas law at issue, HB2, represented a new anti-abortion strategy focusing on supply-side limitations on abortions. The provisions struck down today required doctors performing abortions to have admitting privileges at a nearby hospital, and abortion clinics to be built to the standards of ambulatory surgery centers. Building on a line of argument that had convinced the Supreme Court to uphold a ban on so-called partial birth abortions in 2007, the Texas legislature had publicly justified its policies as protections for women’s health.

But Justice Stephen Breyer, writing for a five-justice majority, dismissed these claims as pretexts masking the statute’s true purpose: sharply curtailing the availability of abortion throughout the state. Hospitals are already required to accept patients needing emergency services, so the admitting privileges requirement adds nothing for women’s health, but enables anti-abortion hospital boards to prevent doctors from providing abortions in their own facilities. And the building standards requirement struck the majority as overkill, given the percentage of women who receive medical abortions and thus require no surgery at all, as well as the existence of riskier procedures, such as colonoscopies and childbirth (!), which may be performed at facilities lacking such requirements. Combined with the uncontroverted findings of the district court that demonstrated the law’s on-the-ground impact since its enactment in 2013, these arguments led the majority to conclude that the law imposed an “undue burden” on women’s right to choose, in violation of the standard set forth in the Court’s last major ruling on abortion.

The impact of today’s ruling in Whole Women’s Health v. Hellerstedt cannot be overstated. Almost half the states have facility requirements comparable to Texas’, while 14 require providers to have some affiliation with a local hospital. But beyond the decision’s nullification of these laws lies a more prospective benefit: the shift in tone that signals the Court’s greater willingness to scrutinize claims offered in defense of restrictions on abortion. Part of what frustrated pro-choice activists about the replacement of Roe v. Wade‘s trimester framework with the undue burden standard from Planned Parenthood was the potential plasticity of the latter approach. Without anything concrete to anchor an understanding of what makes some burdens undue and others justifiable, the application of the standard depends on the predilections of the judge applying it. Breyer’s majority opinion and Justice Ruth Bader Ginsburg’s pointed concurring opinion (“it is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law ‘would simply make it more difficult for them to obtain abortions'”), with their deep dives into the social science findings supplied by both the petitioner and amicus curiae, send a clear message to the states that specious justifications for restrictions on abortion will be labeled and treated as such.

How total was today’s victory for the pro-choice movement? Even Roe opponents Chief Justice John Roberts and Justice Samuel Alito (who had voted while on the Third Circuit to uphold the spousal notification requirement struck down in Planned Parenthood v. Casey) could not bring themselves to defend the Texas law. Instead, they advocated returning the case to the lower courts to develop further the factual record on how the law was actually affecting women’s access to abortion. Given the facts relied upon in the majority opinion, it is unclear what further evidence these justices would have needed to see, but a remand would have bought some time and maybe enabled a junior version of Scalia to arrive at the Court to cast the decisive vote to uphold the statute. Only Justice Clarence Thomas was willing to issue a full-bodied defense of the statute.

It would be foolish to counsel the pro-choice community against complacency in the wake of today’s ruling, as no one has ever seriously advocated on behalf of complacency. But it does seem worthwhile to remind it that anti-abortion activists have been tactically resourceful and willing to play the long game. Moreover, their perspective commands legislative majorities in states containing a sizable majority of women of child-bearing age. So while two stringent restrictions were invalidated today, others will be forthcoming. But today the Supreme Court signaled that supporters of new regulations will be facing an uphill battle.

Supreme Court goes minimalist in jury selection ruling

How egregious must a state’s racially discriminatory behavior in jury selection be before the Roberts Court, with its pervasive skepticism toward claims of racial discrimination, is willing to rap the perpetrator’s knuckles? On Monday, we found out when the Supreme Court voted 7-1 to overturn a Georgia man’s death sentence because the state had used its peremptory challenges to systematically strip the jury of all African-American potential jurors. (Unlike challenges for cause, under which jurors may be removed only for specified reasons pointing to bias, peremptory challenges do not require any justification.) Notably, the opinion was self-assigned by Chief Justice John Roberts, who once wrote, “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Under the leading Supreme Court precedent on peremptory challenges, Batson v. Kentucky (1986)once a defendant claims that the prosecution has struck potential jurors in a racially discriminatory manner,  the state shoulders the burden of offering a race-neutral justification for its removals. The defendant then must demonstrate that the state’s proffered justification was pretext for illicit discrimination. This last stage is the one where Batson claimants tend to get stuck: trial judges tend to take prosecutors’ explanations at face value, appellate judges defer strongly to trial judges’ rulings on Batson motions, and defendants typically lack the evidence needed to demonstrate that prosecutors were not, in fact, behaving race-neutrally.

What was different in the scenario featured in Foster v. Chatman? First, the defendant, Timothy Foster, was able to invoke Georgia’s Open Records Act to force disclosure of the prosecution’s file from his trial. Without this information, his Batson claim would have been rejected, much as his previous two Batson claims had been.Instead, Foster was able to reveal the arsenal of smoking guns left by the prosecution. Second, the Supreme Court, with the notable exception of Justice Clarence Thomas, did not display typical levels of deference to the state courts’ rulings on Foster’s Batson motions. Chief Justice Roberts explained thoroughly, and in pointed prose, how the Georgia prosecutors’ race-neutral justifications for its peremptory challenges could not withstand even the most cursory scrutiny. The result was a ruling that garnered the support of most of the Court’s conservatives, as well as all of its liberals.

As I argued in an earlier post, this ruling should not have been surprising, given the evidence unearthed by the defendant. Any suspense would have to come from the scope of the ruling. Few should have expected the Court to consider whether peremptory challenges as a practice could be reconciled with the Fourteenth Amendment, a position Justice Thurgood Marshall rejected in his Batson concurrence. In Marshall’s view, peremptory challenges were inherently about hunch-playing, and since there was no way to ensure that prosecutorial hunch-playing would be free of invidious stereotyping, prosecutors should be limited to challenges for cause. But Marshall concurred alone, unable to persuade even his fellow liberal William Brennan to join him, and no other justice has subsequently taken Marshall’s position.

The question, then, was whether the Court would set further constraints on the use of peremptory challenges. That did not happen either; what we got was a straightforward application of Batson principles, aided by all that juicy documentary evidence. What will happen when, as is typically the case, such evidence is not readily available? The majority didn’t offer much guidance. Perhaps the cost of a near-unanimous ruling was a narrow holding, but while that narrow holding serves Timothy Foster well, it does little for the next Timothy Foster in the system.

I know justices, I’ll have the best justices

Here, courtesy of AP, is the list of names Donald Trump is floating as potential Supreme Court nominees:

  • Steven Colloton of Iowa (8th Circuit Court of Appeals since 2003)(served as associate independent counsel for the Whitewater investigation.)
  • Allison Eid of Colorado (Colorado Supreme Court since 2006)
  • Raymond Gruender of Missouri (8th Circuit Court of Appeals since 2004)
  • Thomas Hardiman of Pennsylvania (3rd Circuit Court of Appeals since 2007)
  • Raymond Kethledge of Michigan (6th Circuit Court of Appeals since 2006)
  • Joan Larsen of Michigan (Michigan Supreme Court since 2015)
  • Thomas Lee of Utah (Utah Supreme Court since 2010)
  • William Pryor of Alabama (11th Circuit Court of Appeals since 2004; previously state’s Attorney General)
  • David Stras of Minnesota (Minnesota Supreme Court since 2010)
  • Diane Sykes of Wisconsin (7th Circuit Court of Appeals since 2004; previously associate justice of Wisconsin Supreme Court)
  • Don Willett of Texas (Texas Supreme Court since 2005)(not a fan of Trump)

If Jim Geraghty’s post at National Review earlier that day was representative, conservatives were getting antsy over the lengthy interval since Trump’s March 21 promise to release a list of potential nominees. But they’ll probably see little to dislike in this list, stocked high with young nominees with sterling conservative credentials and a paucity of heterodox rulings needing absolution from conservative voters and commentators. (Ian Millhiser at Think Progress describes why Pryor and Sykes, two of the favorites from this list, would be a nightmare for progressives. For other criticism, see here and here.) Trump certainly got his money’s worth from the Heritage Foundation and any other movement conservative outlets to which he outsourced this task. And anyone indulging in the Naderite fantasy that a presidential election without Bernie Sanders offers a Tweedledee vs. Tweedledum should think really, really hard about the prospect of several of these individuals holding seats on the Supreme Court for the next 30 years.

 

 

Judge Palin?

Just in case you thought daytime TV needed one more courtroom show:

Sarah Palin, whose last reality-TV showAmazing America With Sarah Palin, was not exactly a smash hit, is getting a second chance at daytime-TV stardom.People reports that the former Alaska governor has signed a production deal with Warm Springs, a production company based in Montana, for a courtroom reality show in the vein of Judge Judy. “Palin’s telegenic personality, wide appeal, and common-sense wisdom make her a natural for this kind of format,” an unnamed source told the magazine.

I guess that if I were attaching terms such as “wide appeal” and “common-sense wisdom” to Sarah Palin, I’d want to stay unnamed too.

Just the same, a Judge Judy-type show might be right up the former vice-presidential candidate’s alley. Her lack of a J.D. won’t be an obstacle in addressing the kinds of disputes featured on daytime TV courtroom reality shows; it’s not as though she’ll be expected to parse complex statutory language. She’s polarizing, but the people turned off by her aren’t likely to be sitting at home on weekday afternoons eagerly awaiting her latest pronouncements. These shows are about delivering a semblance of rough justice and allowing viewers to feel superior to one or both of the hapless participants. “Judge” Palin should have no trouble delivering on both fronts. And without this kind of crucial hands-on experience, how else is she going to make Donald Trump’s Supreme Court short list?

?-D Chess and GOP Strategy on the Supreme Court

So much of the discussion about filling Antonin Scalia’s spot on the Supreme Court has centered around the electoral consequences of different strategic choices, especially on the Republican side. Should Republicans obstruct at all costs in order to satisfy a base that can’t get enough Obama hatred, or should they use their available leverage to pressure the president (who will be president until January 19, 2017, just to be clear) to appoint a centrist who, for conservative purposes, would be preferable to potential Clinton or Sanders nominees? What are the political and legal ramifications of accepting 4-4 decisions, which would leave a number of significant Court of Appeals rulings standing at a time when a majority of circuits has majorities appointed by Democratic presidents? And how would long-term obstruction affect the electoral chances of blue-state Republican senators up for re-election?

But I confess to harboring doubts about Senate Republicans’ strategic acumen when a sober calculation of the party’s best interests so often collides with the white-hot rage of its base. Consider these two examples:

  • The Republican National Committee’s Growth and Opportunity Project, in its 2013 autopsy of the recently concluded presidential election, argued that unless the party took up the cause of comprehensive immigration reform, and more generally adopted a more welcoming tone toward Latinos, the “Party’s appeal will continue to shrink to its core constituencies only.” “If Hispanic Americans perceive that a GOP nominee or candidate does not want them in the United States (i.e. self-deportation), they will not pay attention to our next sentence.” Yet the leading Republican candidates have rejected Mitt Romney’s “self-deportation” policy as too lenient.
  • When Attorney General Eric Holder announced his resignation last September, he stated that his departure would take effect as soon as his successor was confirmed. You might think that conservatives, who led the successful effort to make Holder the first sitting Cabinet member to be held in contempt by Congress, would have fallen over themselves to replace Holder with just about anybody. Instead, Republicans dragged out Loretta Lynch’s confirmation process for five months, thereby extending Holder’s tenure.

For now, it’s unclear whether the American public will be treated to Potemkin confirmation proceedings or none at all. But let’s not assume that Obama’s opponents are engaged in grand strategic calculations, when it’s more likely that their actions are simply about trying to avoid attracting the ire of the conservative id.

The obvious choice to replace Scalia

In a different world, when a leading figure in American jurisprudence dies, our initial response would be to take stock of his legacy, both positive and negative, and to remember that he had many friends and family members who will miss him dearly. It would not entail parsing the political ramifications of that person’s passing. But that world does not exist today, and it’s unclear whether that world ever existed outside of David Broder’s imagination. Politics cannot be put on hold, given the Supreme Court’s centrality to American politics, highlighted further by the upcoming presidential election that might decide the balance of power on the Court for decades to come. So let us dispense with the jiggery-pokery and consider possible scenarios for Justice Antonin Scalia’s replacement.

In the most likely scenario, President Obama will nominate a moderately left-of-center person (this guy is getting all kinds of buzz, and deservedly so) and dare the Senate to block the nominee for almost a year. The initial reaction of Senate Republicans indicates their willingness–their glee, really–to accept that dare. A party that breaks with decades of tradition by refusing even to hold courtesy hearings on Obama’s budget will not be deterred by the argument that a year’s worth of dilatory tactics is somehow outside the pale. And the ghosts of Abe Fortas and Lyndon Johnson can testify that when it comes to being the subject of filibustering, the Supreme Court is not out of bounds.

Maybe the calculus will change if the Democratic nominee for president conclusively pulls ahead  in the general election race and Democrats show signs of regaining control of the Senate. In that scenario, an Obama nominee might look preferable to whoever might be chosen under unified Democratic control. But if the Republican nominee is even or ahead after the conventions, the GOP will feel that much more secure in waiting until 2017. Since Obama, according to early reports, has already indicated that will be nominating someone, the shadow of the Supreme Court will loom over the general election, and increasingly over the primary election (contrary to what I wrote not even 48 hours ago).

But should Obama decide, in the face of continuing Republican intransigence, to change his strategy from seeking a mutually acceptable nominee to trolling Senate Republicans, there’s really one obvious choice: David Souter. Not only do you get the moderate liberal, but you can also tout him as a Republican who comes with the Bush family seal of approval! And at 76, Souter would be unlikely to hold the seat for a very long time, so a new president could still get a shot to fill the seat. Conservative activists whose nomination strategy can be characterized as “No More Souters” would become apoplectic, but inducing apoplexy is the very point of trolling. I’m not really expecting Obama to undertake this maneuver, but if he can’t break through the anticipated resistance with a more conventional nominee, I’d love to see him try it.

Enter your email address to follow this blog and receive notifications of new posts by email.