ICYMI - Debunking Supreme Court Myths

Senate Judiciary Chairman Chuck Grassley did an excellent job earlier this week debunking the myths regarding the Garland Supreme Court nomination.  A few highlights of the piece entitled Debunking Supreme Court Myths:

MYTH: “The United States Senate isn’t doing its job.”

TRUTH: A recent Washington Post analysis gave this myth “three Pinocchios,” stating: “Nearly 200 years ago, the Senate made it clear that it was not required to act on a Supreme Court nomination.”

. . .

MYTH: “The delay in filling the Supreme Court vacancy is causing dysfunction in the courts and the need for a replacement justice is urgent.”

TRUTH: The Supreme Court is equipped to function with eight justices for a relatively brief time, and has historically had differing numbers of judges (anywhere from six to ten), a number that is set by Congress. Cases can be re-argued, rescheduled and resolved in the future, so having an even number of judges temporarily will not prove problematic, as both Justice Breyer and Justice Alito have stated.

The whole piece is well worth reading and makes clear that Merrick Garland's nomination should not receive a vote. 

Senate Should Remain Firm on Not Confirming Merrick Garland to the Supreme Court

With Donald Trump becoming the presumptive Republican nominee for President last week, some conservatives urged the Senate to confirm President Obama's Supreme Court nominee, Merrick Garland, because they had already given up hope of a Republican victory in the fall.  (Note polls today show that Trump is in a dead heat in key states.)  Putting aside any debate over the outcome of the November election for the moment, this advice to Senate Republicans is not sound.  

As Hans von Spakovsky and Elizabeth Slattery explained, the point of Senate Republicans' refusal to hold hearings or a vote on Garland's nomination was not to obstruct President Obama's ability to fill another seat on the Supreme Court but rather to let the people speak on the nomination:

The goal of the Senate Leadership’s decision to provide their “Advice” to the president by sitting on the nomination was not to deny Mr. Obama another appointment to the Supreme Court. Rather, the goal was to give the American people the ability to weigh in on who should fill this crucial seat when they cast their votes this November and decide who will be the next president.  

This decision upholds a longstanding Senate tradition.  As Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, has pointed out, for more than 80 years it has been the upper chamber’s standard practice not to confirm Supreme Court nominees for vacancies that arise during a presidential election year. 

If the Senate Republicans changed their decision now, they would be betraying the principle they have been upholding for nearly two months and the people they represent:

Without the Senate’s support, an outgoing president is not entitled to make a decision about a critical position with lifetime tenure in the third branch of government that will affect the country for decades after that president’s term has long ended. 

As Majority Whip John Cornyn, R-Texas, said, “I, for one, believe we ought to be consistent, and that consistent principle is the American people deserve to be heard and their voices heeded on who makes that selection to something as important as filling this vacancy on the Supreme Court.”  

Sen. Lindsey Graham, R-S.C., put it more bluntly: “We can’t have it both ways…We cannot say ‘let the people speak,’ and then say ‘no, you can’t.’” 

If Senate Republicans choose to change their strategy at this point, they would be turning their backs on the groundswell of grassroots support for what they are doing, as well as the principle they have fought for—that the American people deserve a voice in this process.

We agree with Sens. Cornyn, Graham, Grassley, McConnell, Hatch, and many others - the Senate should refuse to hold hearings or a vote on the nomination of Merrick Garland to the Supreme Court and allow the American people to speak through the November election on who should fill the Scalia seat on the Supreme Court.

Hillary Clinton v. The ABA’s Judicial Code of Judicial Contact

On February 11, we wrote about Bernie Sanders demanding judges violate one of the most basic judicial tenants, bind themselves to decide a case in advance of hearing the case.  Bernie did this as part of his war of on free speech in discussing Citizen’s United.  

Last night in the Democratic Presidential Debate, Hillary Clinton did him one better:

The only people that I would ever appoint to the Supreme Court are people who believe that Roe v. Wade is settled law and Citizens United needs to be overturned.

Let us restate this basic tenant of judicial ethics, from the ABA’s Code of Judicial Conduct - Canon 2, Rule 2.4:

(A) A judge shall not be swayed by public clamor or fear of criticism.
(B) A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment.
(C) A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge.

Judges must refrain from speaking about topics that are currently before or may be before the court for just this reason. Their task is to apply law to the facts of cases; it is not to make good on a promise that directly procured their appointment.

To be clear, Senator Sanders also did it again last night, and seemed to imply that he might oppose President Obama’s current nominee, Merrick Garland, for failing to violate judicial ethics:

I think that we need a Supreme Court justice who will make it crystal clear and this nominee has not yet done that, crystal clear that he or she will vote to overturn Citizens United.

The assertions in the statement above speaks to the potential Democrat nominees' misunderstanding of the purpose and power of the Office of the President of the United States and likely of the Judicial Branch as well.

RNLA Thanks Chairman Grassley for His Continued Leadership

Senator and Judiciary Chairman Charles “Chuck” Grassley is a man of his word and a true Senate Leader.  He has not only kept to his promise of no hearing or votes until after the people speak this November regarding the current vacancy on the Supreme Court, he has also shown integrity in the face of partisan attacks and other pressure.  RNLA formerly thanks him in a letter available here. 

Yesterday, Chairman Grassley met with Merrick Garland and as Senator Grassley tweeted:

Had pleasant bfast w Judge Garland this morning. Explained why the Senate won't be moving fwd w… https://t.co/yy3fJfGWio

— ChuckGrassley (@ChuckGrassley) April 12, 2016

This has been Senator Grassley’s model: be cordial and respectful while keeping to what others have said before.  For example, check out some of Chairman Grassley’s comments on the Biden Rule and the Obama Administration’s effort to ignore it:

“No matter how hard the White House tries to rewrite history, it can’t change then Chairman Biden’s remarks explaining how the President and Senate should handle a Supreme Court nomination arising during a heated presidential campaign. As Chairman Biden explained, the hyper-political environment is bad for the nominee, the court, and ultimately the nation.   

The Vice President noted today that “the meaning and extent of your federal constitutional rights” are heard and decided by the Supreme Court.  He’s right.  And the American people should be provided an opportunity to weigh in on whether the court should move in a more liberal direction for a generation, dramatically impacting the rights and individual freedoms we cherish as Americans.”

Chairman Grassley steadfast leadership and depth of understanding of the issue was shown when he stood up to Chief Justice Robert’s criticism of the growing politicization of the Supreme Court:

"The chief justice has it exactly backwards," Grassley also said. "The confirmation process doesn't make the justices appear political. The confirmation process has gotten political precisely because the court itself has drifted from the constitutional text and rendered decisions based instead on policy preferences."

On behalf of the RNLA, thank you Chairman Grassley.  

Randy Evans on History and Importance of Supreme Court Vacancies

RNLA's Chair, Randy Evans, published a thoughtful analysis of the history of Supreme Court nominations and the significance of the current battle over the nomination of Judge Merrick Garland to the vacancy left by the death of Justice Scalia:

Make no mistake, the Constitution empowers the president to nominate people to serve as justices on the nation’s highest and most powerful court. The very same document leaves no doubt that the U.S. Senate has the right to confirm, reject, or simply ignore the president’s choice. . . .

From the theater so far this year, some might think that this is the first time battle lines have been drawn over a Supreme Court vacancy with such serious consternation. Yet, believe it or not, 17 presidents have submitted nominees that were not confirmed. . . . While not the rule, the simple truth is that the president does not always get to have his choice automatically confirmed to the court.

The reason why Republican Senators are standing united in not holding hearings is the importance and power of Supreme Court Justices:

The suggestion that the current battle over Justice Scalia’s replacement is about President Obama ignores pretty settled history. Fights over seats on the U.S. Supreme Court between the president, the Senate, and sometimes the Congress have occurred since the court began. . . . After all, nominations to the U.S. Supreme Court are serious business. Nominees, if confirmed, serve for life, subject only to removal by impeachment. . . . And, as life spans have increased, justices now serve decades after confirmation to the bench. More significantly, rightly or wrongly, they can make as much or as little law as they choose; and, absent a constitutional amendment, there is little that the president or Congress can do about it.

This vacancy affords a rare opportunity for the people to speak directly on the future of the Supreme Court:

Interestingly, when it comes to the other two branches of government, the American people get to weigh in and decide which direction to go next. As history now has it, the president and the Senate have that same chance in this all-important election year — to hear from the American people about which direction to go next. 

In November, just a few months from now, the American people will get the chance to voice their own opinions about which direction to go next. Why would the president and the Senate not want to hear what the American people have to say before such an important decision? After all, the Constitution does begin with “We, the People of the United States…”

Republican Senators Fulfill Duty to the People by Opposing Obama's Effort to Confirm Garland Before Election

We recently expressed our deep appreciation for our Republican Senators standing their ground as Obama attempts to force the court even further to the left in the waning days of his presidency. The Senators are united in the belief that this is about the principle, not the person. Sen. Orrin Hatch expressed his thoughts on the matter in greater detail over the weekend:

For three reasons, I believe the best way for the Senate to exercise its power of advice and consent regarding the Scalia vacancy is to conduct the confirmation process after this toxic election season has passed. 

The first reason is precedent. This is only the third vacancy in nearly a century to occur after the American people had already started voting in a presidential election, and in both the previous two instances — in 1956 and 1968 — the Senate did not confirm a nominee until the following year. The Tribune's ignorance of this longstanding history is no excuse for falsely accusing Republicans of making it up "out of whole cloth."  

The second reason for my conclusion is the consistent guidance from past Senate leaders of both parties. For example, in 1992, another presidential election year, then-Judiciary Committee Chairman Joe Biden recommended that the entire Supreme Court appointment process — including the president's nomination — be deferred until after the election. Many other Senate Democratic leaders, from Harry Reid to Chuck Schumer, have said the same thing, and their rationales apply just as well today as they did in the past.  

The third reason is that elections have consequences. The 2012 election was obviously meaningful for the president's power to nominate and President Obama has exercised that power by nominating Judge Garland. But the 2014 election was also meaningful for the Senate's power of advice and consent. In that election, the American people elected a Republican Senate majority in large part to check President Obama's executive overreach. Given how crucial the courts have proven in holding this administration accountable to the Constitution, the Senate has every reason to approach lifetime appointments cautiously and deliberately, especially appointments to the highest court in the land. 

Sen. Hatch articulated three distinct and exceptionally clear points that you are unlikely to find in any of the media articles about Judge Garland's nomination, which all claim he is a moderate candidate because Obama said he was a moderate. It is easy to attempt to slap a label on a candidate. However, in this case the facts simply cannot support the president’s assertion. As Senate Majority Leader Mitch McConnell discussed in an interview on Fox:

I can't imagine that a Republican majority in the United States Senate would want to confirm in a lame duck session a nominee opposed by the National Rifle Association, the National Federation of Independent Business that represents small businesses—that have never taken a position on the Supreme Court appointment before—they're opposed to this guy. I can't imagine that a Republican majority Senate even if it were assumed to be a minority, would want to confirm a judge that would move the court dramatically to the left. That's not going to happen. 

Look, Barack Obama calling judge -- this judge a moderate doesn't make him a moderate. This judge would move the court dramatically to the left. He's enthusiastically supported by MoveOn.org.

The Senate has a role to play here. The president nominates, we decide to confirm. We think the important principle in the middle of this presidential year is that the American people need to weigh in and decide who's going to make this decision. Not this lame duck president on the way out the door, but the next president. Obama's interest in shifting the court left has been well documented. 

Even under fire from the current administration, McConnell continued reiterate similar and very valid points on other programs:

If you want to discuss the nominee just for a minute, even though Barack Obama calls him a moderate, he's opposed by the NRA. He's opposed by the National Federation of Independent Business which has never taken a position on a Supreme Court nominee before. The New York Times said it would move the court dramatically to the left. But this is not about this particular judge—this is about who should make the appointment. We're in the process of picking a president, and that new president ought to make this appointment which will affect the Supreme Court maybe for the next quarter of a century. 

Democrats claim that the “people spoke” when Obama was reelected. No one is arguing Obama has the right to nominate. However, “the people” also spoke when they voted a Republican Majority in the senate. Senators, you have our thanks for standing up to protect the balance of power between branches of the government and ensuring that a failed administration cannot continue to influence this county through the Supreme Court for the next quarter century.  

GOP Senators Committed to Letting People Speak on Supreme Court Nomination

After President Obama's nomination of D.C. Circuit Chief Judge Merrick Garland to Justice Antonin Scalia's vacant seat on the Supreme Court, Senate Republicans remained steadfastly devoted to principle -- the principle that the American people should be given the opportunity to speak on the future of the Supreme Court through the election in November.  Republican Senators have made it clear for the past month that they will refuse to hold hearing on any nominee because as Sen. Mitch McConnell said, this is "about a principle, not a person."

Sen. Chuck Grassley continued his strong leadership in his statement about the nomination:

Co-equal authorities are throughout the Constitution, including Article II, Section 2, where the power to nominate an individual to the Supreme Court is granted to the President and authority is given to the Senate to provide advice and consent.  Nowhere in the Constitution does it describe how the Senate should either provide its consent or withhold its consent.  

Today the President has exercised his constitutional authority.  A majority of the Senate has decided to fulfill its constitutional role of advice and consent by withholding support for the nomination during a presidential election year, with millions of votes having been cast in highly charged contests.  As Vice President Biden previously said, it’s a political cauldron to avoid. . . .  

A lifetime appointment that could dramatically impact individual freedoms and change the direction of the court for at least a generation is too important to get bogged down in politics.  The American people shouldn’t be denied a voice.  Do we want a court that interprets the law, or do we want a court that acts as an unelected super legislature?  This year is a tremendous opportunity for our country to have a sincere and honest debate about the role of the Supreme Court in our constitutional system of government.

Sen. Kelly Ayotte emphasized the significance of the next Supreme Court justice, which is why the people should be allowed to speak on the issue:

Empowered with a lifetime appointment, the next Supreme Court justice will likely have a significant impact on the court and the people of our country for years. In the midst of a presidential election and a consequential debate about the future of our country, I believe the American people deserve to have a voice in the direction of the court. I continue to believe the Senate should not move forward with the confirmation process until the people have spoken by electing a new president.

Sen. Pat Toomey echoed the importance of the people's voice: 

With the U.S. Supreme Court's balance at stake, and with the presidential election fewer than eight months away, it is wise to give the American people a more direct voice in the selection and confirmation of the next justice.

Sen. David Vitter said:

Rather than have an insider’s political tug-of-war between the President and the Senate over a Supreme Court nomination, the American people should decide through this year’s election. So I'll be doing everything I can to give the American people a voice . . . . The President is well within his constitutional authority to name a nominee – and the Senate is well within our constitutional authority to not hold hearings or a vote. President Obama has less than a year left, but a Supreme Court Justice will impact our country for decades, and this is something we shouldn’t take lightly.

Sen. John Cornyn agreed:

While the President has the constitutional authority to make a nomination to fill this vacancy, the Senate also has the authority and responsibility to determine how to move forward with it. 

The next justice could change the ideological makeup of the Court for a generation, and fundamentally reshape American society in the process. 

At this critical juncture in our nation's history, Texans and the American people deserve to have a say in the selection of the next lifetime appointment to the Supreme Court. 

The only way to empower the American people and ensure they have a voice is for the next President to make the nomination to fill this vacancy.

The RNLA thanks Republican Senators for their leadership in allowing the American people to have a voice on the future of the Supreme Court before it becomes the most liberal Court in decades.

Senate Has No "Constitutional Duty" to Consider or Confirm a Supreme Court Nominee

Today, President Obama nominated D.C. Circuit Judge Merrick Garland to the Supreme Court vacancy left by the untimely death of Justice Antonin Scalia, claiming that the Senate had a "constitutional duty" to hold hearings and vote on Judge Garland's nomination.  This is consistent with statements by Senate Democrats, many of which contradict their previous statements about nominees submitted to the Senate by Republican Presidents.

The Washington Post's analysis of that claim concluded that it contained significant factual error (3 out of 4 Pinnochios) (emphasis added):

As you can see, there is no recent parallel to the current situation: a president filling a sudden vacancy on the court in an election year when the Senate is controlled by the opposition party, particularly when the vacancy occurred with nearly a year left in the presidential term. 

But it is also clear that politics has always played a role — and the Senate has set the rules to act as it wants. Nearly 200 years ago, the Senate made it clear that it was not required to act on a Supreme Court nomination. In periods of divided government, especially with elections looming, the Senate has chosen not to act — or to create circumstances under which the president’s nominee either withdrew or was not considered. Indeed, the patterns don’t suggest the Senate used procedures out of constitutional duty, out of deference for what the Constitution says or what previous Senates have done. Instead they used procedures based on the political circumstances of each confirmation. 

It’s matter of opinion whether a refusal to consider a nominee is a dereliction of constitutional duty or walking away from a constitutional responsibility. But the Senate majority can in effect do what it wants – unless it becomes politically uncomfortable. Democrats who suggest otherwise are simply telling supporters a politically convenient fairy tale.

In reacting to Judge Garland's nomination, RNLA leaders agree that the Senate is in control of its own process and of the decision whether to consider a nominee:

RNLA Chair Randy Evans: “The American people should have the opportunity to weigh in on such an important and pivotal nomination. . . . Democracy works best when government officials, including the President, let the people be heard.” 

RNLA Judicial Affairs Vice President Stefan Passantino: “While our president had the constitutional right to nominate Merrick Garland, so too does the Senate have the right to withhold consent in a presidential election year.” 

The RNLA thanks Senate Republicans for their continued devotion to principled defense of the Constitution by not considering a nomination to the Supreme Court that could negatively transform the Court.