Sunday, February 28, 2016

Republicans: 'Do Your Job,' Then Let People Decide

      President Obama says he is looking for a Supreme Court nominee with “a sterling record,” “a deep respect for the judiciary’s role,” and “an understanding of the way the world really works.” He may find someone who meets those qualifications, to his satisfaction, but to Senate Republicans it will make no difference.
      In an act of separation-of-powers defiance with no historical precedent, the Senate’s Republican majority has vowed not to vote or even hold a hearing on the nominee Obama plans to choose to fill the vacancy left by the death of Justice Antonin Scalia. If the Republicans stick to their plan, the court, already one justice short for most of this term’s decisions, likely will be short-handed as well for all or virtually all of the term that ends in June 2017.
      Senate Majority Leader Mitchell McConnell announced the no-vote/no-hearing position within hours after the news of Scalia’s death on a Saturday afternoon [Feb. 13]. Many observers wondered whether it could possibly hold. And a few Republicans appeared to dissent. But McConnell emerged from a post-Presidents Day recess Republican caucus on Tuesday [Feb. 23] to tell reporters that “virtually everyone” in the GOP conference was on board. “The overwhelming view,” McConnell said, “is that this vacancy should not be filled by this lame-duck president.”
      The GOP snub is so complete that Republicans are saying in advance that they will not even give an Obama nominee the ritualistic courtesy meeting. “I don’t see the point in going through the motions,” Sen. John Cornyn, one of the two Texans on the Judiciary Committee along with presidential hopeful Ted Cruz, told reporters. In advance of the caucus, all 11 of the Judiciary Committee Republicans, Cruz included, had signed a letter in effect pledging allegiance to the no-hearing stance.
      The Senate is a hurdle for Supreme Court nominees, just as the Framers of the Constitution intended by requiring senators’ “advice and consent” before the lifetime appointments. But in the modern era of public hearings for Supreme Court confirmations that began in 1916, no nominee has been denied a hearing and only one has been denied a vote: Abe Fortas, filibustered in 1968 by Republicans. GOP senators opposed his elevation to chief justice because of ethics issues and liberal views.
      Constitutional text and historical practice clearly support a president’s right to nominate Supreme Court justices up to the end of his term. By my count, 19 Supreme Court justices have been confirmed by the Senate in a president’s last full year in office. In addition, Justice William J. Brennan Jr. was recess-appointed by President Dwight Eisenhower in October 1956, one month before the presidential election, and then confirmed by the Senate in 1957.
      Obama is, of course, not a lame-duck president in the true sense of the political term: a president still holding office after the election while awaiting the inauguration of a successor. Two lame-duck appointments illustrate the different possible outcomes. John Adams nominated and won confirmation of the great chief justice John Marshall in January 1801 as he prepared to turn the office over to his partisan adversary, Thomas Jefferson. Sixty years after, the outgoing president James Buchanan nominated his secretary of state and fellow Pennsylvanian Jeremiah Black for the Supreme Court, but the Senate — with a newly elected Republican majority —  rejected Black by a 25-26 vote, saving the seat for Republican Abraham Lincoln to fill.
      Constitutional text and historical practice thus fully support the Senate’s prerogative, as McConnell and other Republicans are putting it, to “withhold” consent. Out of 154 nominations through history, 29 have failed to win Senate confirmation. Interestingly, most of those failed nominations — 22 by my count — failed before 1900, typically more because of partisan politics than legal ideology.
      Despite the increasing politicization of the confirmation process, only six nominations failed in the 20th century. Civil rights groups and organized labor set the precedent for modern confirmation battles by engineering the Senate’s 41-39 rejection of President Herbert Hoover’s nomination of federal judge John J. Parker in 1930.
      When Fortas’s nomination failed, so too did President Lyndon Johnson’s nomination of federal judge Homer Thornberry to fill Fortas’s seat as associate justice. Stung by the episode, liberal groups massed the next year to defeat President Richard M. Nixon’s successive nominees for the vacancy created after ethics issues forced Fortas to resign. Two decades later, the same coalition of liberal forces lobbied to block President Ronald Reagan’s nomination of the conservative federal judge Robert Bork in 1987.
      The last of the failed nominees was Harriet Miers, chosen by the Republican president George W. Bush in 2005 with the Senate then under Republican control. Miers received no hearing only because she withdrew after an unenthusiastic reception from Republicans and conservatives.
      For better or worse, politics shaped all of these succession episodes. Filling the vacancy was bound to be a political challenge for Obama, an outgoing president facing an opposition-controlled Senate. But, astoundingly, Senate Republicans refuse to take the responsibility for considering a nominee and then voting up or down. That would be the better course for doing their job, as the Democrats put it, and then, as the Republicans are phrasing it, letting the American people decide.

Sunday, February 21, 2016

Closing Curtain on Conservative Activism

      In the last of his memorable dissents, Justice Antonin Scalia complained that nine unelected justices had no business deciding whether states could or could not deny marriage rights to same-sex couples. The issue, Scalia wrote in Obergefell v. Hodges, was for the people to decide through their elected representatives, not for the justices to decide under the Constitution’s Due Process and Equal Protection Clauses.
      Scalia’s last official action as a justice was to provide the critical vote along with four other conservatives, to put the Obama administration’s major initiative on climate change on hold at the Environmental Protection Agency (EPA). None of the five had any training in environmental science, but Scalia apparently had no qualms about substituting his view of the policy over that of the EPA director who had been duly appointed by the president and confirmed by the Senate.
      The court’s decision [Feb. 9] to issue a stay of the so-called Clean Air Program in West Virginia v. EPA came before any court had had a chance to rule on the merits of the challenges filed by states, business groups, and the electric utility industry. The stay, issued with four liberal justices dissenting, appeared to violate the oft-stated maxim that the Supreme Court is “a court of final review, not first view.”
      The court’s decision to insert itself into the controversy at an early stage touched off criticism not only from environmentalists but also from procedurally-minded Supreme Court watchers. The debate over what amounted to procedural activism was still raging in the blogosphere and elsewhere as Scalia left Washington later that week for the fateful hunting trip to Texas.
      Scalia’s death and the fierce political battle over the selection of a successor eclipsed any further debate about the court’s action in the EPA case. Years from now, however, the court’s one-paragraph order that day may well be remembered as the closing curtain for a quarter-century of conservative judicial activism dating from the early Rehnquist Court through the first decade of the Roberts Court.
      For most of his 29 years on the court, Scalia was part of a conservative five-justice majority that formed regularly to bend or outright overrule precedents, some of them recent and others of long-standing. The conservatives did this even as they and their supporters generally extolled the virtues of judicial restraint and decried activist judges.
      The Roberts Court’s record of conservative activism is well within recent memory. The campaign finance decision in Citizens United and gun rights decision in District of Columbia v. Heller stir liberals and progressives into indignation and action and draw equally fervent defenses from conservatives and libertarians. Both decisions notably overturned precedents dating back two decades in the campaign finance case and 70 years in the gun rights case.
      The activist era began much earlier, however, with the appointment of the moderate conservative Anthony M. Kennedy to the court in 1988. Kennedy was no Robert Bork, but in his first full term Kennedy provided critical votes for decisions that cut back enforcement of the job discrimination provisions of the Civil Rights Act of 1964. A Democratic-controlled Congress responded by overturning some of those decisions with the Civil Rights Act Amendments of 1991, signed into law by a Republican president, George H.W. Bush.
      With the appointment of Justice Clarence Thomas in 1991, the stage seemed set for the overturning of the abortion rights decision Roe v. Wade. But Kennedy blinked, providing the critical fifth vote needed to reaffirm Roe while creating more leeway to regulate abortion procedures.
      The Rehnquist Court was more aggressive over the next decade, however, on a range of issues. Several lines of precedents issued generally on 5-4 votes favored states’ prerogatives in federalism disputes. In an opinion written by Scalia, the court ruled that Congress could not require states to help implement the background checks provision of the Brady Act. Rehnquist added a decision blocking Congress from using its Commerce Clause power to enact the Gun Free School Zones Act.
      In a line of precedent-upsetting decisions, the court expanded the scope of the 11th Amendment to hold that states cannot be sued for damages for violating federal laws, in federal courts or even in state tribunals. In other areas, the Rehnquist Court cut back on remedies in school desegregation cases and gave state and local governments more leeway to provide assistance to parochial schools.
      The conservatives became if anything bolder when Rehnquist was succeeded by his former law clerk John G. Roberts Jr. and the unbending conservative Samuel A. Alito Jr. succeeded the swing-vote justice Sandra Day O’Connor. In their first full term, Roberts and Alito provided the votes in 2007 to throw out a 100-year-old antitrust precedent, uphold a federal partial birth abortion ban nearly identical to a state law struck down seven years earlier, and limit local authorities’ leeway to promote racial balance in public schools. Then, in a two-step sequence, Roberts led the court in warning Congress to rewrite the Voting Rights Act and, when Congress failed to act, gutted the law with the decision in Shelby County v. Holder.
      Over time, conservatives came to think better of activism, with some in academia and elsewhere now openly advocating a bull-in-the-china-shop approach to liberal precedents. But if President Obama can find a consensus candidate who can pass muster with the Republican Senate, the conservative bloc is likely to be denied on the highest-profile issues. If not, then Republicans and Democrats will be right in saying that the court’s future could turn on the outcome of the presidential election in November.

Sunday, February 14, 2016

'Lame Duck' Nominees Often Confirmed to High Court

      At least 19 Supreme Court justices have been confirmed in the final year of a president’s four-year term in U.S. history, including five chief justices (bold in list below). Contrary to statements by some Republican senators following the death of Justice Antonin Scalia, there is no historical tradition of declining to fill a Supreme Court vacancy during the final year of a president’s four-year term.
      Several nominations made by so-called lame-duck presidents, however, failed (in italics below): In the most recent instance, Lyndon B. Johnson’s nomination of Abe Fortas was withdrawn in the face of a Republican filibuster in the Senate based on ethics issues and Fortas’s liberal views. Somewhat analogously, the Senate did not act on John Tyler’s nomination of John M. Read in 1845 because Southern Democrats were opposed to confirming the anti-slavery Read. And the post now includes, in reply to a commenter, the Whig President Millard Fillmore's three unsuccessful attempts to fill a vacancy in 1852-53, his last year in office, as a Democratic-controlled Senate balked at his choices.

      Here is a list taken from Supreme Court A to Z (5th ed., CQ Press):

      Samuel Chase (1796: Washington)
      William Cushing (1796: Washington)) (Declined)
      Oliver Ellsworth (1796: Washington))
      John Jay (1800: J. Adams) (Declined)
      John Marshall (1801: J. Adams)
      William Johnson (1804: Jefferson)
      John Crittenden (1828: J.Q.Adams) (postponed)
      Roger Taney (1836: Jackson))
      Peter Daniel (1841: Van Buren))
      John Spencer (1844: Tyler) (Rejected)
      Reuben Walworth (1844: Tyler) (Withdrawn)
     Edward King (1844: Tyler) (Withdrawn)
      Samuel Nelson (1845: Tyler)
     John M. Read (1845) (No action)
     Edward Bradford (1852: Fillmore) (No action)
     George Badger (1853: Fillmore) (Postponed)
     William Micou (1853: Fillmore) (No action)
     Jeremiah Black (1861: Buchanan) (Rejected)
      Salmon Chase (1864: Lincoln)
      Ward Hunt (1872: Grant))
      William Woods (1880: Hayes)
      Stanley Matthews (1881: Hayes) (No action; then renominated by Garfield)
      Melville Fuller (1888: Cleveland)
      George Shiras Jr. (1892: B. Harrison)
      Howell Jackson (1893: B. Harrison)
      Mahlon Pitney (1912: Taft)
      Louis Brandeis (1916: Wilson)
      John H. Clarke (1916: Wilson)
      Benjamin Cardozo (1932: Hoover)
      Frank Murphy (1940: F. Roosevelt)
      William J. Brennan Jr. (1956 recess appt.: Eisenhower; confirmed 1957)
      Abe Fortas (1968: L. Johnson) (Withdrawn) )
      Homer Thornberry (1968: L. Johnson) (Withdrawn: no vacancy) )
      Anthony M. Kennedy (1988: Reagan)
      ???? (2016: Obama) (???)

Antonin Scalia: A Consequential but Not a Great Justice

      Antonin Scalia was, to be sure, a consequential justice: forceful on the bench, forceful in his opinions, forceful in person. Chief Justice John G. Roberts Jr. wrote what could pass for an epitaph when he marked Scalia’s 25th anniversary on the court: “The place hasn’t been the same ever since.”
      Despite the effusive praise from the legal right and the respectful tributes from the left, Scalia is unlikely to be judged among the greatest justices of all time. Yes, he leaves important legacies: the “original meaning” method of constitutional interpretation and the “plain text” method of statuary construction. But Scalia never mastered what Justice William J. Brennan Jr. cited as the Supreme Court’s most famous rule: counting to five.
      Fittingly, Scalia’s final opinion was a dissent written for three of the court’s conservatives, with Roberts and Anthony M. Kennedy siding with the liberal justices to form the majority. Scalia argued in vain in Montgomery v. Louisiana that state courts did not need to follow federal rules in post-conviction cases and that a four-year-old precedent limiting life-without-parole sentences for juvenile offenders did not apply retroactively.
      Scalia wrote few of the Roberts Court’s most important conservative decisions over the past 10 years. Roberts picked Scalia to write the landmark Second Amendment decision, Heller v. District of Columbia (2008), but Roberts was more likely to pick himself or Kennedy or even the junior conservative Samuel A. Alito Jr. in cases where holding five votes together called for more tact than Scalia was likely to display. Examples: Citizens United and other campaign finance decisions.
      Apart from his mostly second-tier majority opinions, Scalia made his mark over the past 10 years more with separate opinions or dissents. In the affirmative action case Fisher v. University of Texas (2013), Scalia repeated, along with Clarence Thomas, his view that the Equal Protection Clause prohibits any consideration of race in admissions at public universities. Two votes, not three, four, or five. In Hein v. Freedom from Religion Foundation (2007), Scalia argued, again with Thomas, for going further than the Alito-led conservative majority in limiting taxpayer suits to enforce the Establishment Clause.
      Perhaps in his final years, Scalia may have been thinking that at least he could be remembered as one the court’s “great dissenters.” Certainly, he pulled no stops in his dissents. In the same-sex marriage case, Scalia accused the Kennedy-led majority of a “judicial putsch” (Obergefell v. Hodges). In the Affordable Care Act subsidies case, Scalia accused Roberts of “twistifications” in leading the six-vote majority to uphold a financing provision essential to making Obamacare work (King v. Burwell).
      Going back further, one must count as well his dissents in decisions recognizing a right to abortion, upholding affirmative action, and reaffirming the Miranda rule on police interrogation. But to be a “Great Dissenter,” a justice needs the posthumous vindication that comes from the adoption of his dissenting view by a later majority. Thus, the first justice Harlan is a great dissenter for his prescient protest against racial segregation in Plessy v. Ferguson, 60 years before Brown. Sixty years from now, Scalia’s most vigorous dissents — those on abortion and gay rights — are most likely to be seen even more than today as futile cries against advancing liberty and equality.
      By all accounts, Scalia was warm, charming, and even funny in person. He and his wife had a famous friendship with his liberal colleague Ruth Bader Ginsburg and her late husband. On occasion, however, he could be indelicately tart toward his colleagues in written opinions. When Justice Sandra Day O’Connor declined in 1989 to provide a fifth vote to overturn Roe v. Wade, Scalia sneered that her opinion “cannot be taken seriously.” In the gay marriage case, Scalia mocked Kennedy’s majority opinion as “pretentious” and “egotistic” and derided the four liberals for joining it. “I would hide my head in a bag,” he wrote, before joining such an opinion.
      Scalia fancied himself a committed textualist: committed to the strict meaning of words be they in the Constitution or in a statute. At times, the literalist approach led to results seemingly at odds with his supposed policy views. He took a strict view of a defendant’s Confrontation Clause to crossexamine prosecution witnesses: the result, a new doctrine that limits the use of testimonial statements gathered by police if the witness is unavailable. He also took a strict view of the right to a jury trial, resulting in a line of decisions that fortify juries’ roles in sentencing decisions. And he authored important Fourth Amendment decisions that prohibit police from searching a house with a thermal imager or tracking a car with a GPS device unless they get a warrant first.
      At times, however, Scalia’s textualism had its limits. In recognizing an individual right to possession of firearms, Scalia read the prefatory militia clause out of the Second Amendment. In an important mandatory arbitration case, Scalia joined the 5-4 decision in 1991 that effectively nullified the exemption for employment contracts in the seminal Federal Arbitration Act.
      Scalia led “a renaissance for conservatives" at the court, The New York Times declared in a headline on the story of his death [Feb. 13]. Yet even after his 29 years as part of a Republican-appointed majority on the Rehnquist and Roberts courts, the conservative backlash against liberal rulings of the Warren and Burger courts has been no more than partly successful. In death, one must imagine that Scalia will be unable to rest in peace.

Sunday, February 7, 2016

Voter ID Laws Found to Lower Minority Turnout

      The Supreme Court gave states a green light to enact voter ID laws in a fractured decision in 2008 that upheld an Indiana law adopted eight years earlier. Significantly, the Indiana law had been on hold pending the results of the legal challenge. So the court had no actual evidence on the impact of the law on individual voters or overall voter turnout.
      Now come three political science researchers with an empirical study on the actual results from four biennial elections that indicate an impact not on overall turnout but in particular on “minorities and other disadvantaged groups.” As voting rights advocates press legal challenges to voter ID laws in several states, the study provides legal ammunition that the laws may violate the federal Voting Rights Act because of their disparate impact on racial and ethnic minorities.
      The three researchers, who collaborated at the University of California-San Diego, guard their credibility with caution on some of the disputed points in the debate over voter ID laws. (Zoltan Hajnal is a professor of political science and Nazita Lajevardi a graduate student at UCSD; Lindsay Nielson is now a professor of political science at Bucknell University.) Most significantly for their bona fides, the three coauthors acknowledge the opposing studies on the incidence of voter fraud in elections and describe that debate as “ongoing and inconclusive.”
      The researchers are anything but cautious, however, in seeing a racial and political impact from the voter ID laws. The title says it all: “Voter Identification Laws and the Suppression of Minority Votes.” Strict voter ID laws “have a differentially negative impact” on turnout of black, Hispanics, Asian American, and multiracial voters, the researchers write, and also “skew democracy toward those on the political right.”
      Given the raging debate over the issue in the past 15 years, readers may be surprised by the reminder that before 2008 no state — not one — required identification from would-be voters. Today, 34 states have some form of voter ID law, with seven counted by the researchers as imposing “strict photo ID” requirements. Public opinion polls indicate broad support for voter ID requirements.
      The stricter laws, however, might have less support if pollsters could take time to explain the details. In Texas, for example, a handgun permit satisfies the photo ID requirement, but not a student ID — a distinction likely to have a differential political impact. A lower court judge and the Fifth U.S. Circuit Court of Appeals have both found the Texas law to discriminate against blacks and Hispanics, but it is in effect pending a final ruling.
      North Carolina’s law allows voters to use forms of photo ID disproportionately held by whites, such as passports, driver licenses, and veteran and military IDs. But the law does not allow use of student IDs, government employee IDs, and, most tellingly, public assistance IDs — disproportionately held by African Americans. A federal judge has a legal challenge to the law under advisement after finishing a two-week trial last week.
      The UCSD researchers used data to show the ID laws’ adverse impact on voter turnout for minorities, as explained in a story [Feb. 2] on the progressive news site TPM (Think Progress Memo). The researchers used validated state voter turnout figures instead of unreliable self-reporting by voters and teased out from the data a clear effect on minorities’ turnout and a measurable benefit for Republicans over Democrats. Scott Keyes’ story in TPM summarized the researchers’ findings, based on a revised version of the article updated from the version currently on the web.
      In primary elections, “a strict ID law could be expected to depress Latino turnout by 9.3 points, black turnout by 8.6 points, and Asian American turnout by 12.5 points,” the researchers found. In general elections, the data indicate that strict ID laws increase the gap between turnout for minority as compared to white voters. For Latinos, the researchers say the predicted gap “more than doubles” from 4.9 points in states without strict ID laws to 13.5 points in states with such laws. The gap increased by 5 points for Asian Americans and 2.2 points for African Americans.
      One more finding, especially significant given the partisan divide between Republicans who support strict voter ID laws and Democrats who oppose them: “Democratic turnout drops by an estimated 8.8 percentage points in general elections when strict photo identification laws are in place,” the researchers say, compared to just 3.6 percentage points for Republicans.
      The coin-tossing used to award delegates in six precincts in the Iowa Democratic caucuses last week demonstrates that, in fact, every vote counts. Certainly, a few percentage points of votes count, as Hajnal suggested in his interview with TPM. “It’s fair to say that given the number of states that have these laws, there’s a very real possibility that in a very tight election, it could sway the contest one way or another,” Hajnal said.
      The Supreme Court gutted the Voting Rights Act by effectively nullifying the preclearance provision, which could have stopped the Texas and North Carolina laws in their tracks. But lower courts could find the evidence of minority vote suppression strong enough to strike the laws down under the act’s still-valid section 2, which prohibits any voting or election practice that denies a racial or ethnic minority equal opportunity to participate in the political process. Voter ID laws appear to do just that.

Thursday, February 4, 2016

Supreme Court "Divided by Political Differences"

From Dupont Circle Village Newsletter, February 2016

Soup Salon guest Kenneth Jost (bottom right in photo) has been a legal journalist for three decades. Make that more than 50 years, if you count his high-school newspaper article on desegregation. Ken started his career at the Nashville Tennessean and got on the court beat a year later. Aside from a stint working as a legislative assistant for the then first-term Representative Al Gore, his friend from Harvard, he never turned his back on legal journalism. In DC, this began with Congressional Quarterly (CQ), which also published an annual book, The Supreme Court Yearbook, reporting on all the Supreme Court decisions of the year. Ken became its author at the same time that Ruth Bader Ginsburg joined the Court. He was also a writer and editor for CQ Press and CQ Researcher, as well as president of the DC chapter of the National Lesbian and Gay Journalists Association. His most recent book is Trending Toward #Justice, a compilation of his key columns and the backbone of his Salon talk.

“The conflicts of the early 21st century are coming before a Court more neatly divided by political differences than ever before,” Ken observed. He related this observation to why Justice Anthony Kennedy, who he termed “the bipartisan Justice” and “very earnest,” is so often the Court’s swing vote. Conservative as he is, Kennedy couldn’t have been confirmed without Democrats when President Nixon nominated him after the Bork debacle; indeed, he has proven less “fervently ideological” than his Republican peers on the Court. Still, he added, “this is a Court of judicial activism, whose majority is asserting a conservative politics more strenuously than is typical.”

Ken pithily summarized his book’s profiles of the other eight Justices.

• Roberts: “A nice guy” and also a “determined conservative.” “He’s responsible for the institutional credibility of the Court, which tempers him in some instances.”

• Scalia: “The Justice with an injudicious temperament...and more certitude than a Justice should have.”

• Thomas: “During his confirmation, he said he had no interest in overturning precedent, but that’s all he does.”

• Alito: “Overly dogmatic...but very effective at shaping arguments to go his way.”

• Ginsburg: “Even apart from the Court, she’d be in a legal hall of fame.” Ken added that he nonetheless believed she should have retired a few years ago, which prompted a lively discussion during the Q & A.

• Breyer: “He was once described as a ‘cold fish,’ and I agree.”

• Sotomayor: “Whatever her judicial legacy will be, she has charted a new path as a Justice of the people.”

• Kagan: Like Alito, she is “very effective at framing questions and arguments to her side.”

The book also features the history of some cases, criminal justice and equal representation issues, and how “things went awry with President Bush’s policies during the war on terror in trying to keep issues out of court.” On equal representation, especially for poor people, Ken also traces how the Court is narrowing remedies for injured parties.

The three pieces in the book Ken termed “the most meaningful” to him are tributes to his late, former publisher at the Nashville Tennessean, who sent him to jail, undercover, to report on conditions there; to the late Anthony Lewis, who inspired him to take up legal journalism and whom he hailed as the “creator of the modern Supreme Court beat;” and to the late Nelson Mandela— “an example of the powerful role law can play in promoting liberty and justice for all.”

Ken believes that the law has played that role here, as well. “Though there are big exceptions, on balance we have a freer and more just legal system because of the Supreme Court than we otherwise would.” Villagers can keep up with his astute views through his blog, Jost on Justice.”