Thursday, March 22, 2018

Senator Hatch: Unprecedented Judicial Vacancy Crisis

On March 20, Senator Orrin Hatch, the president pro tempore of the Senate, delivered an impassioned speech about the current state of federal judicial vacancies under President Trump.

Due to Senate Democrats' continued obstruction and efforts to "resist" President Trump and his agenda (as we have highlighted regularly), there are currently 138 federal district and appellate court vacancies. Senator Hatch clearly and concisely explains this crisis and how things compare today to days' past under other, recent Presidents.

First, Senator Hatch looked to recent, past "standards" exalted by Senate Democrats before President Trump took office, to point out the hypocrisy and outright obstructionism [1:20-minute mark]:

One standard is that the Democrats have specifically identified how many vacancies are unacceptable. In February 2000, with a Democrat in the White House, the Democrats said that 79 vacancies were ‘‘too high.’’ In September 2012, with the Democrats both in the White House and controlling the Senate, they declared a ‘‘judicial vacancy crisis’’ when there were 78 vacancies. If 78 vacancies is a crisis, what is the label for 138 vacancies? . . .
A second Democratic vacancy standard is that, as they did in April 2014, we can compare judicial vacancies today with vacancies at the same point under previous Presidents. If that Democratic standard is valid, vacancies today are 35 percent higher than at this point under President Obama and 46 percent higher than at this point under President George W. Bush.
There is a third Democratic vacancy standard. In June 2013 and at least as far back as April 1999, the Democrats have complained that the Senate was not confirming enough judicial nominees to keep up with normal attrition. Well, judicial vacancies today are 30 percent higher than when President Trump took office, and, as I said, at least 33 more have already been announced.
Finally, the Democrats have frequently said that the 107th Congress—the first 2 years of the George W. Bush administration—should be our judicial confirmation benchmark. During that time, the Senate confirmed an average of just over 4 judicial nominees per month. The Senate has so far confirmed 28 of President Trump’s district and appeals court nominees or fewer than 2 per month.
Take your pick. By any or all of these Democratic standards, we face a much more serious judicial vacancy crisis than in years past. . . .
Next, Senator Hatch explained the reality of this situation and how Republicans have tried to get President Trump's judicial nominees to the Senate Floor for a vote and how Democrats have pulled all stops in an attempt to slow the process down to a crawl [5:34-minute mark]:
Under Chairman Chuck Grassley's leadership, the committee has held a hearing for 62 of President Trump’s judicial nominees—more than under any of the previous five Presidents at this point. So that is clearly not the problem. The first sign of Democratic obstruction is the unwarranted and partisan opposition to reporting judicial nominations from the Judiciary Committee.
In February 2012, 3 years into the Obama administration, the Democrats complained that five nominees to the U.S. district court had been reported by the Judiciary Committee on a party-line vote. This, they said, departed dramatically from Senate tradition. Today, just 14 months into the Trump administration, eight nominees to the U.S. district court have been reported by the Judiciary Committee on a party-line vote. The present rate of such party-line votes in the Judiciary Committee is more than four times what the Democrats criticized just a few years ago.
The below-the-radar obstruction tactics continue when the Judiciary Committee sends judicial nominees to the full Senate. The Democrats, for example, refuse to cooperate in scheduling confirmation votes. They can’t prevent confirmation votes altogether because they abolished nomination filibusters in 2013, but if they can’t make judicial confirmations impossible, they are determined to make them very difficult. Here is how they do it.
Since President Trump took office, the Democrats have forced the Senate to take 28 cloture votes on judicial nominations, compared to just 2 cloture votes at this point under the previous five Presidents combined. Even when cloture is invoked, Senate rules provide for up to 30 hours of debate before a confirmation vote can occur. Nearly half the time under President Obama, a judicial nomination cloture vote was followed by a confirmation vote on the same day. Under President Trump, that has plummeted to 17 percent. The average time between cloture and confirmation votes for President Trump’s judicial nominations is more than 55 percent longer than it was under President Obama. . . .
Senator Hatch concludes [13:00-minute mark]:
We face an unprecedented judicial vacancy crisis. Since President Trump is making nominations and the Judiciary Committee, under Chairman Grassley's leadership, is steadily processing them, there remains only one explanation for the vacancy crisis we face today—plain, old-fashioned, partisan obstruction. The Democrats are manipulating this process at every stage, using the very tactics that they have loudly condemned in the past to make confirmations as difficult and time-consuming as possible.
Even in politics, actions speak louder than words. In July 2012, when there were 76 judicial vacancies, Chairman Leahy said that ‘‘we should be doing better.’’ Today, with nearly twice as many vacancies, I challenge my Democratic colleagues to put actions to those words.
You can view Senator Hatch's entire Senate Floor speech on YouTube and a transcript of his remarks have been published in March 20's Congressional Record (on the first two pages).

The RNLA will continue to highlight this ongoing, unprecedented crisis faced by President Trump's judicial and political nominees.

Wednesday, March 21, 2018

Democrats Are Using Courts To Take Redistricting Power Away From Legislatures

RNLA Executive Director Michael Thielen wrote today in The Daily Caller about how Democrats are trying - successfully - to seize political control by using the courts to control redistricting:
Democrats and their liberal allies, not satisfied with their results at the ballot box and in the legislatures, have turned to the courts to enact their radical agenda by fiat, without the input of the people as intended in our system of constitutional government.
Courts are increasingly deciding redistricting cases and enacting entirely new maps by judicial fiat:
Commonly called redistricting (when done in a way you like) or gerrymandering (when done in a way you dislike), states have established procedures whereby the state legislature or a special redistricting commission determines the districts for federal congressional and state legislative races after each decennial census. This has an enormous practical impact on elections, as it not only divides voters into constituencies but also decides which candidates may represent which group of voters. 
Redistricting is, at best, a confusing area of law. The guidelines provided in past Supreme Court cases are vague and applied inconsistently by the courts. And the reasons for this are obvious. Unlike traditional “law,” which involves applying static statutes, case law, and regulations to a specific fact pattern, redistricting is an inherently political act. It is difficult for courts to assess the political judgments of a state legislature or commission and provide clear guidelines for adjudicating future political decisions.
The recent, overt seizure of power by the Democrat-controlled Pennsylvania Supreme Court to enact a map drawn by its selected expert provides is the starkest example of the Democrats' and their liberal allies' use of the courts to achieve a result they could not obtain through the ballot box or the people's representatives:
And that brings us back to the beginning. We are in a crisis of democracy over political control. Ultimate political power and accountability ultimately resides with the people, who exercise control through their elected representatives. Yet some courts, when presented with the opportunity from liberal activists’ lawsuits to undo and ignore the will of the people, jump at the chance to turn over political power to unelected, unaccountable experts.
The U.S. Supreme Court has three redistricting cases pending before it this term, which could dramatically change the law on redistricting. We hope that the Court provides some clear guidelines in this important area before the post-2020 redistricting so that the Democrats cannot use litigation to seize control of the district lines.

Tuesday, March 20, 2018

SCOTUS Review - Compelled Speech at Issue

In what is turning out to be a blockbuster term for the First Amendment (Janus v. AFSCME & Minnesota Voters Alliance v. Mansky) and redistricting cases (more generally), today the United States Supreme Court heard another highly controversial case involving compelled speech and the First Amendment: National Institute of Family and Life Advocates v. Becerra.

From Amy Howe at SCOTUS Blog:

The Supreme Court heard oral argument today in National Institute of Family and Life Advocates v. Becerra, a highly anticipated case that combines two often controversial topics: the First Amendment and abortion. The question before the justices today was whether a California law that directs “crisis pregnancy centers” to provide their patients with specific kinds of information – including, for some, the availability of low-cost or free abortions – violates the First Amendment’s free speech clause. After roughly an hour of oral argument, the law appeared to be in some jeopardy, not only among the court’s more conservative justices but also perhaps at least with Justice Elena Kagan, one of the more liberal justices. . . .
Overall, a majority of the justices seemed skeptical over the law and its impact on First Amendment rights. SCOTUS Blog continues:

Justice Samuel Alito...was concerned that the law unfairly singles out anti-abortion facilities like crisis pregnancy centers while providing exemptions for other kinds of health-care providers. “If you have a law that’s neutral on its face” but then contains “a lot of crazy exemptions,” he asked, “isn’t it possible to infer intentional discrimination?” After Joshua Klein, the deputy state solicitor general who argued for California, agreed that it was, Alito peppered him with questions about various exemptions in the California law and concluded that “when you put all this together, you get a very suspicious pattern.” 

Perhaps more crucially for the state, [Justice Elena] Kagan seemed to share some of Alito’s concern that, as she put it, California might have “gerrymandered” the law – that is, drawn it to target crisis pregnancy centers. If so, she declared, “that’s a serious issue.”. . . Klein tried to assure Kagan and Alito that the law also applies to a “significant” number of clinics that are not opposed to abortion, but Kagan nonetheless pressed him to explain why and how the state decided to create the exemptions [and the laws impetus].
Ms. Howe noted, Justice Neil Gorsuch astutely declared: “[I]t’s pretty unusual to force a private speaker to do that for you under the First Amendment.”

Even the current swing-vote, Justice Kennedy, seemed to question the soundness of this law, at issue. Ms. Howe notes:

Justice Anthony Kennedy also expressed doubts about the law. In one question that may prove to be pivotal in the case, he asked [Michael] Farris [attorney arguing on behalf of the centers] what would happen if an unlicensed clinic wanted to put up a billboard that said only, in large letters, “Choose Life.” Would that message trigger the law’s notice requirement? . . . Farris responded that the billboard would indeed have to disclose that the nonprofit does not provide medical services – a point with which Klein seemed to agree. . . Farris’ answer drew a sharp response from Kennedy. Requiring the inclusion of a 29-word notice on a billboard displaying a two-word message, Kennedy suggested, seems to impose an “undue burden” on the nonprofit’s speech “that should suffice to invalidate the statute."
Ms. Howe closed by noting:
By the time the oral argument ended this morning, California’s law seemed like it could be in real trouble. And although we normally think of the Roberts court as being closely divided on high-profile cases, today’s argument suggested that the ruling might not necessarily be a close one. The justices could ultimately decide to strike down part or all of [this California law]. . . .
We will keep you posted on major U.S. Supreme Court cases as arguments begin to wind-down and opinions are issued by the Court leading up to the close of this term.

Monday, March 19, 2018

PA GOP Describes Special Election Irregularities in Letter to PA SOS

The Republican Party of Pennsylvania asked acting Secretary of the Commonwealth Robert Torres to investigate several "irregularities" during last Tuesday's special election in the 18th Congressional District.  Democrat Conor Lamb won the race by just 627 votes over Republican Richard Saccone, a small enough margin that even a relatively small number of confused or disenfranchised voters could change the outcome of the race.

An attorney and authorized campaign representative was prevented from observing vote counting in Allegheny County:
First, an authorized campaign attorney, Russell Giancola, presented several forms of permissible credentials but was prevented from observing the computation of the vote count in Allegheny County Tuesday night. . . . While attorney Giancola was finally able to obtain this compliance with the inappropriate preconditions, the delay deprived the campaign of the right to have counsel present during the computation reporting process.
Allegheny and Washington Counties failed to provide the notice to military and overseas voter required by the Uniform Military and Overseas Voters Act.  Voting machines were not calibrated properly:
Third, we received multiple complaints throughout the 18th Congressional District regarding calibration issues involving the voting machines.  Numerous voters have called the Party and the Saccone campaign to complain that they selected Rick Saccone on the voting screen, only for Conor Lamb to appear on the confirmation screen.  It is our understanding that some of these issues were not resolved during the Special Election.
Poll workers failed to follow provisional ballot procedures:
Fourth, the Party received numerous complaints about voters not appearing on the voter rolls, and being denied the ability to cast a provisional ballot at their polling place.  In at least one instance, a voter was denied a provisional ballot at his precinct and directed to vote at his prior precinct in the neighboring county where he used to reside before moving several months ago.  This violates voters rights under the Help America Vote Act and Commonwealth's implementing statutes and regulations. In addition, given the closeness of this election, denial of the right to vote for even a small number of eligible voters could cast the outcome of this election into doubt.
When the Democrat-controlled Pennsylvania Supreme Court instituted a new congressional district map last month, it kept the previous lines for Special Election.  Both U.S. Supreme Court Justice Samuel Alito and a three-judge panel of the U.S. District Court for the Middle District of Pennsylvania declined to overturn that new map today (more about that on this blog tomorrow).  When voters tried to search for their polling place, they were incorrectly shown polling places under the new map:
Finally, as your office was made aware on election day, the Department of State's website errantly directed voters to polling places matched to their address under the recently imposed Pennsylvania Supreme Court map . . . rather than the congressional district lines in use for the Special Election.  Since election day, we have heard from potential voters in Pennsylvania's 18th Congressional District who attempted to vote but were informed that they did not live in the district any longer. 
This illustrates some of the ills of court-ordered district maps - they create confusion for voters, generate administrative hassles (and opportunities for errors) for election officials, and disrupt constituencies mid-term.

We hope that the Pennsylvania Department of State takes these allegations seriously and investigates these irregularities so that the integrity of future elections is not called into question.

Friday, March 16, 2018

FEC Republicans Allow Public a Chance to Comment on Free Speech on the Internet

Wednesday, the Federal Election Commission approved a draft Notice of Proposed Rulemaking on Internet Communication Disclaimers and the Definition of "Public Communication":
The Commission approved a Draft Notice of Proposed Rulemaking requesting comment on two alternative proposals to amend its regulations concerning disclaimers on public communications on the internet that contain express advocacy, solicit contributions, or are made by political committees. The approved draft notice also requests comment on proposed changes to the definition of “public communication.” Comments must be received on or before 60 days after the date of publication in the Federal Register. The Commission will hold a public hearing on this notice on June 27, 2018.
Thanks to the steadfast defense of the First Amendment and the rule of law by the Republican FEC commissioners, the Democrat commissioners have not be successful in their efforts to expand and change the rules regarding Internet advertising ex post, in response to complaints about Internet activities that are clearly legal and/or unregulated under the FEC's current regulations and policies.    The FEC Democrats have, at times, also supported unrealistic requirements that would make disclaimers take up the entirety of small Internet ads (such as those on Twitter or mobile devices).  

Through the efforts of the Republican commissioners, the FEC is going about regulating this important area in the correct way, through notice and comment rule making with ample opportunity for the regulated community and interested parties to speak on the issue and with plenty of notice to the regulated community on any changes in the rules.  All along, the Republican commissioners have supported a reasonable, common-sense approach to regulating Internet communications that protects the public's interests and comports with the goals of campaign finance regulation while taking into account the constraints and opportunities provided by changes in technology, all while protecting the political speech rights of Americans.

The RNLA will provide in-depth analysis of the proposals in this NPRM in the coming weeks.  But its very existence is a testament to the leadership of Chair Caroline Hunter, Commissioner Matthew Petersen, former Commissioner Lee Goodman, and the many Republican FEC commissioners who have gone before them.

Thursday, March 15, 2018

RNLA Honors Prof. Ron Rotunda on His Passing

Professor Ron Rotunda, a stalwart leader of the conservative and Republican legal movements, has unexpectedly passed away.  A consummate scholar, he was an expert on constitutional law, federalism, free speech, professional responsibility, legal history, and many other areas of law.  His legal and political analysis was always insightful and witty, enabling non-lawyers and lawyers alike to easily understand complicated concepts and making him a sought-after commentator on many issues.  

RNLA President Elliot Berke said: "When I was in law school, Ron became a legal giant to me as a Constitutional Law scholar. He had worked on Watergate with my Con Law professor so I then only knew him by reputation. Within a few years of graduating, I was fortunate to work with him in the Independent Counsel's office and to become his friend. He leaves behind a tremendous legacy in the law and will be greatly missed." 

Here are some recent highlights from his prolific writing and speeches:

John Marshall and the Cases That United the States of America - published in January, this critically acclaimed book contains Prof. Rotunda's rewritten and condensed version of Beveridge's biography of John Marshall.  It is a fascinating read for scholars of legal history and constitutional law.

"Facebook, Russian Interference and the Monsters on Maple Street" - Verdict, Dec. 18, 2017:
There is nothing new under the sun and there is nothing new about Russian interference. The Russians (and the Soviets before them) spread agitation-propaganda, or “agitprop,” a Russian blend of agitatsiya (agitation) and propaganda (propaganda). Its purpose is to sow discord, fan hatred. . . . 
Non-democracies spread fake news to undermine democracy and manipulate people. . . . There is nothing unusual, or even new, in all of this. When we express surprise, we emulate French Captain Renault in Casablanca who said, “I am shocked—shocked—to find that gambling is going on in here!” (Right after that, an employee says to him, “Your winnings, sir.”) 
What we know of Russian interference tells us much about Putin, the former KGB operative, and much about ourselves. Russia used Facebook and other social media in the year or so preceding the 2016 presidential election, and the period following, to sow discord and mayhem. The point is to amplify social divisions . . . by promoting opposite sides of the political spectrum . . . .
"Using the Licensing Power of the Administrative State: Model Rule 8.4(g)" - The Federalist Society's National Lawyers Convention, Nov. 18, 2017: Prof. Rotunda provided a chilling, yet amusing, analysis of free speech implications of the American Bar Association's new Model Rule of Professional Conduct 8.4(g).

"George Wallace at Harvard—The Good Old Days of Campus Free Speech" - Verdict, May 8, 2017: 
Every generation must relearn the lessons of free speech. It is no accident that Eastern European Communists suppressed speech and art as well as politics and religion. And when the people overturned the Communist dictators of Eastern Europe, they regarded freedom of expression as a premier right. The Czech revolution began in the theatres, and that country’s first freely elected president since World War II was a playwright.
"An English Teacher Corrects Shakespeare" - Verdict, Apr. 10, 2017:
There is also the problem of free speech. People have a right to use ordinary English. Perhaps because we have passed 1984 unscathed, we often ignore the significance of George Orwell’s “Newspeak”. Words both reflect and mold the way that people think, which is why they are so powerful and why the First Amendment is so important. [Northern Arizona University's] Dr. [Anne] Scott is using her power of grading as a way to control how people talk. . . . 
There are limits to the power of words, but there is also a magic in them: not the magic of “abracadabra,” but magic nonetheless. Words have the ability to confuse and to clarify, to help legitimate policies, to generate loyalty, to give the appearance of action, to mold people’s perceptions of the world, to affect the way they approach a problem, and to reflect their innermost thoughts. When people argue about “mere words,” they are talking about fundamentals, about infrastructure, not superstructure. 
When Dr. Scott and Northern Arizona University force students to use certain words and shun others, they are tapping into this power—a power easy to abuse. That is why we have the First Amendment. The government should not punish people for using words that our dictionary blesses.
"The Electoral College Works Fine, Just as It Is" - Verdict, Dec. 5, 2016:
Our Electoral College system prevents candidates with only regional appeal from winning. Statistically, a rule requiring the winner to prevail in a number of sub-elections produces a better result for the country. For the same reason we count the number of games won in the World Series (rather than the total number of runs, which would be heavily influenced by an anomalous game). After all, if Clinton in 2016, won 100% of the popular vote in her home State of New York, thereby prevailing in the nationwide popular vote, those extra votes would not show she had more support nationwide, only that she is a candidate popular in one very populous state. 
The Electoral College penalizes political parties that have only regional strength. In the 2016 election, the Democrats had regional appeal. If you look at a map of the vote for president based on counties, with counties colored red (for Republican), you will see the country painted with a sea of red except, primarily, at the seashores. This regional influence extends in congressional races as well. In the House of Representatives, just three coastal states, California, Massachusetts and New York, now account for a third of all House Democrats
The Framers of our Constitution built for the long term and created a system to last for generations. They established a democracy while protecting the rights of the minority. . . . 
The structural limits do not stop here. They created the Electoral College to protect the residents of the smaller states, and they rejected government by simple majority because plebiscites historically have been the tool of dictators, such as Hitler & Benito Mussolini. In modern form, plebiscites arose out of the French Revolution. Madison feared what he called “tyranny by the majority.”
"The ABA Decision to Control What Lawyers Say: Supporting 'Diversity' But Not Diversity of Thought" - The Heritage Foundation Legal Memorandum, Oct. 6, 2016: 
These changes show that the ABA is very much concerned with what lawyers say and who teaches them. The only thing that does not concern the ABA is diversity of thought. The language that the ABA uses to promote its latest foray into political correctness makes this all too clear. Moreover, what the ABA does affects all of us, even if we are not lawyers, because of its governmental power. . . . 
Even when a court does not enforce this rule by disbarring or otherwise disciplining the lawyer, the effect will still be to chill lawyers’ speech, because good lawyers do not want to face any nonfrivolous accusation that they are violating the rules. The ABA as well as state and local bar associations routinely issue ethics opinions advising lawyers what to do or avoid, and most lawyers follow this advice. . . . 
Is it the best use of scarce bar resources to discipline lawyers who may violate a vague rule that prohibits speech because that speech violates the new Rule 8.4(g)? It is not as if the disciplinary authorities are looking for things to do. There are plenty of lawyers who are incompetent, who commingle trust funds, or who cheat third parties. 
The purpose of the new Rule 8.4(g) is to promote a “cultural shift” in the United States. Until now, that was not within the job description of the ABA or of the Rules Governing Professional Conduct.
Rest in peace, Professor Rotunda.

Wednesday, March 14, 2018

Recount Likely in PA Special Election Amid Allegations of Irregularities

Yesterday's much-publicized special election in Pennsylvania's 18th congressional district remains close, with the Democrat Conor Lamb leading Republican Rick Saccone by just 627 votes out of over 228,000 cast.  A recount is expected:
A source familiar with the next steps said Republican attorneys are planning to go to court Wednesday to demand the impounding of all ballots and machines that were used Tuesday night in all counties, as they plan for a possible recount.
There are allegations of irregularities with the voting machines and with absentee ballot processing:
Republicans plan to probe allegations that touch screen machines in Allegheny County were not properly calibrated and could have possibly registered votes for Lamb when the voter intended to vote for Saccone. 
These attorneys also plan to allege that GOP attorneys were blocked from observing absentee ballots by Allegheny County election supervisors.
There are also some concerns that the newly court-drawn map for the next election caused confusion. 
Another absentee ballot processing irregularity occurred in Washington County, which originally did not plan to count its 1,195 absentee ballots until today.  It planned to hold them in a secured location overnight before distributing them back out to the election precincts to be counted and reported back to the county election board.  Then, late last night, county officials changed their minds and decided to count them last night because of the close nature of the race.

We will update readers of this blog on the status of the recount, any investigations, and any litigation resulting from this race.