Kavanaugh Hearing Set for September 4

Judge Brett Kavanuagh’s confirmation hearing is set to begin on September 4 as announced by Judiciary Chairman Senator Chuck Grassley today.

Grassley predicted that the hearings will span three or four days, starting with opening statements on Sept. 4 and questioning on Sept. 5.

“As I said after his nomination, Judge Kavanaugh is one of the most respected jurists in the country and one of the most qualified nominees ever to be considered by the Senate for a seat on our highest court,” Grassley said in a statement. “My team has already reviewed every page of the over 4,800 pages of judicial opinions Judge Kavanaugh wrote, over 6,400 pages of opinions he joined, more than 125,000 pages of records produced from his White House legal service, and over 17,000 pages in response to the most comprehensive questionnaire ever submitted as a nominee.”

“He’s a mainstream judge," Grassley added. "He has a record of judicial independence and applying the law as it is written."

Despite liberals claims of rushing or anything similar, Kavanaugh’s hearings will be later than the most recent Democrat nominees and the overall average:

Just got word that Kavanaugh's hearing will begin on Sept. 4 -- 57 days after President Trump's announcement of his nomination. https://t.co/UmZl7XKoGe

— Ed Whelan (@EdWhelanEPPC) August 10, 2018

The time between nomination and hearings for Kavanaugh (57 days) is 6 days more than the average length of time (51 days) for all confirmed justices including and after Breyer

— Adam Feldman (@AdamSFeldman) August 10, 2018

Please sign the RNLA’s letter support Judge Kavanaugh here.  RNLA will continue to provide information until the hearing. 

Only Sure Thing on SCOTUS Monday Is a Democrat Meltdown

Next Monday night a future Supreme Court Justice will be revealed to the public at 9 p.m. While the rumors are it will be either: Amy Coney Barrett, Brett Kavanaugh or Raymond Kethledge, there is one thing we know for sure: Democrats will go ballistic. So before the good news on Monday, we thought we would knock down some of the Democrats' attacks against any Supreme Court nominee from a Republican President.

1.  The nominee must pledge to a view on Roe v. Wade in order to be confirmed.  We will let liberal icon Justice Ruth Bader Ginsburg handle this one:

“You are well aware that I came to this proceeding to be judged as a judge, not as an advocate. Because I am and hope to continue to be a judge, it would be wrong for me to say or preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously. Judges in our system are bound to decide concrete cases, not abstract issues; each case is based on particular facts and its decision should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives choose to present. A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”(U.S. Senate Judiciary Committee, Hearing, 7/20/1993)

And no less than Senate Minority Leader Chuck Schumer agreed:

 “There is a grand tradition that I support that you can't ask a judge who’s nominated for a -- or a potential judge who is nominated -- for a judgeship about a specific case that might come before them.” (Sen. Schumer, Press Conference, 2/7/2017)

2. But if you want to talk about issues, even there Democrats are not telling the truth.  Let's talk about the left's efforts to rally their base by saying Obamacare will be repealed:

DEMOCRATS: President Trump’s nominee could overturn the Affordable Care Act.

REALITY: Justice Anthony Kennedy voted to strike down the Affordable Care Act. Even if the same case were to come before the Court, and Justice Kennedy’s replacement voted the same way, the law would still be upheld, because the same five-Justice majority that upheld the law is still on the Court.

3. Led by Senator Schumer, Democrats are saying the nominee should not be considered in an election year after Republican Leader McConnell did not schedule a vote in 2016 after Justice Scalia passed.  From the Washington Post:

But here’s the rub: the Republican position, whether you disagreed with it or not, clearly was based on the fact that it was a presidential election year. Here’s Senate Majority Leader Mitch McConnell on ABC’s “This Week” on March 20, 2016:“The American people are in the middle of choosing who the next president is going to be. And that next president ought to have this appointment, which will affect the Supreme Court, for probably a quarter of a century.” . . .
Bottom line: it’s pretty clear the debate in 2016 revolved around nominations made in a presidential election year. Democrats are simply spinning a false narrative.

The Democrats are going to attack any nominee from President Trump. The attacks will not be based on the nominee’s record or even well-grounded in reality. President Trump’s list is outstanding and any nominee from it would be committed to the rule of law. RNLA will be working to help win the public argument to confirm the nominee in the coming weeks.

Top 10 News Items on the Supreme Court Vacancy Going Into July 4th

10.  President Trump will announce his decision on the evening of Monday, July 9th.

9.  Senate Minority Leader Chuck Schumer will follow the “Kennedy Rule” and oppose any nominee. Senator Ted Kennedy gave an infamous speech condemning Judge Robert Bork as soon as he was announced.  The partisan attack helped lead to Bork’s defeat.  Kennedy gave a similar speech when Justice David Souter was nominated.  Justice Souter turned out to be a vote for the liberal wing of the court.  The Kennedy rule many Senate Democrats have lived by states regardless of the person’s record, if he is nominated by a Republican, he must be portrayed as an extremist that would bring back segregation, back-alley abortions, etc.

8.  CNN will report fake news.  CNN’s legal commentator Jeffrey Toobin has already lost it as Ari Fleischer points out:

If you want to see what it looks like when someone has lost their mind, here it is... https://t.co/TyeCPn9MPQ

— Ari Fleischer (@AriFleischer) July 1, 2018

7.  The Left’s attacks are not limited to unhinged insanity.  They also include Religious bigotry.

Dragging Amy Barrett for her Christian faith is 1) unconstitutional if used as a religious test for office; 2) ignorant; and 3) often malicious and bigoted. She lives a life very similar to the lives of millions of her fellow citizens: https://t.co/p1Vu8Z3fvo

— David French (@DavidAFrench) July 2, 2018

6.  And unbounded hypocrisy:

I didn’t realize that the minority leader was such a fan of Citizens United and DC v Heller. https://t.co/qZXrvogE56

— Ilya Shapiro (@ishapiro) July 2, 2018

5.  President Trump is reportedly personally interviewing five finalists.  David Latt says four of those finalists are:

I can CONFIRM (multiple sources) that President Donald Trump personally interviewed these four #SCOTUS candidates today: Judges Amy Barrett (7th Cir.), Brett Kavanaugh (D.C. Cir.), Raymond Kethledge (6th Cir.), & Amul Thapar (6th Cir.). #AppellateTwitter

— David Lat (@DavidLat) July 2, 2018

4.  The fifth person is a woman, as President Trump has stated two of the five potential nominees are women.  Possibilities include: Margaret Ryan, Joan Larsen, or Allison Eid.

3.   While much has been written about the qualifications of Judge Barrett and Judge Kavanaugh, Judge Kethletdge has largely flown under the radar.  Here is a great piece by RNLA Board of Governors Member Chuck Cooper on Kethledge. 

2.   Another potential nominee not receiving as much attention is Judge Thapar.  For his appellate nomination, RNLA endorsed Amul Thapar and worked on his judicial confirmation.

1.  The "judge whisperer" Leonard Leo of the Federalist Society summed up President Trump's Supreme Court shortlist well: "The list is really good," Leo said, adding, "You can throw a dart at that list and in my view you would be fine."

The RNLA is very excited to support the nominee in the mold of former RNLA Member Justice Neil Gorusch.  Stay tuned for more information here and buckle your seat belt for Monday.

Not Equal: Not One Current Republican Senator Has Ever Filibustered a Supreme Court Nominee

Make no mistake about it, there is only one party at fault for the likely so-called nuclear option in the United States Senate to end potential filibusters for Supreme Court nominees.  As Leader McConnell stated:

Later today, due to the threat of an unprecedented partisan filibuster, I’ll file cloture on the nomination of Judge Neil Gorsuch to be an Associate Justice of the U.S. Supreme Court.  It should be upsetting to everyone that our colleagues across the aisle have brought the Senate to this new low, and on such an impressive nominee with such broad bipartisan support. 

Judge Gorsuch is independent, he’s fair, he’s got one of the most impressive resumes we’ve ever seen, and he’s earned the highest possible rating from the group the Democratic Leader calls the "gold standard" for evaluating judicial nominations. 

No one seriously disputes his sterling credentials to serve on the Court.  And yet, in the Judiciary Committee, Democrats just withheld support for him.  On the floor, Democrats say they’ll launch a partisan filibuster against him — something Republicans have never done. No one in the Senate Republican Conference has ever voted to filibuster a Supreme Court nominee. Not one Republican has ever done that.

Later today, colleagues will continue to debate the nomination of Judge Gorsuch. They’ll discuss how completely unprecedented it would be for Democrats to actually follow through on this filibuster threat — to actually block an up-or-down vote for this nominee even though a bipartisan majority of the Senate supports his nomination — and what the negative consequences would be for the Senate if they succeed. 

I’ll be listening with interest.  I hope Senators in both parties will listen as well.  

Notice, that “No one in the Senate Republican Conference has ever voted to filibuster a Supreme Court nominee.”  Democrats have done this before to Justice Samuel Alito, including many current Senate Members and Democrat Party leaders such as then-Senators Biden, Clinton, and Obama.  Bolded below, among the 25 who voted to filibuster Alito, are current Senate Members:

Bayh (D-IN) Biden (D-DE) Boxer (D-CA) Clinton (D-NY) Dayton (D-MN) Dodd (D-CT) Durbin (D-IL) Feingold (D-WI) Feinstein (D-CA) Jeffords (I-VT) Kennedy (D-MA) Kerry (D-MA) Lautenberg (D-NJ) Leahy (D-VT) Levin (D-MI) Menendez (D-NJ) Mikulski (D-MD) Murray (D-WA) Obama (D-IL) Reed (D-RI) Reid (D-NV) Sarbanes (D-MD) Schumer (D-NY) Stabenow (D-MI) Wyden (D-OR)

By contrast, not one single Republican voted to filibuster Justices Sotomayor or Kagan.  The two sides are not equal.  Democrats are the ones who are forcing the rule change and “nuking” the Senate.  Republicans are standing up for the people who spoke in the election in 2016.  Thank you to Leader McConnell, Republicans and principled Democrats such as Joe Manchin, Heidi Heitkamp, and Joe Donnelly.  

Top 10 Republican Lawyer Posts for 2016

Here are the top 10 posts for 2016 from The Republican Lawyer blog.  These posts show how the left is trying to destroy the First Amendment and how out of control the Obama Administration was on matters of speech.  Furthermore, they prove once again how Donald Trump’s victory was also a victory for the Constitution. 

10. "Judge Sanctions DOJ Attorneys for Putting Politics Ahead of Truth, Ethics, and Justice."  We will be happily working to confirm Senator Sessions as Attorney General to fight the ethical abuses and politicization of the Department of Justice under President Obama. 

9. "Brennan Center: The Only Democrats in New York who Don't See Vote Fraud." Any honest Democrat in New York would admit to you that vote fraud is real and that voter ID is needed; just most know that partisan groups like the Brennan Center will attack them for saying it.

8. "Democrats Keeping the Zombie Vote Alive."  Colorado Secretary of State Wayne Williams stated:  "It is impossible to vote from the grave legally” but apparently Democrats do it anyway. 

7. "Former SEC Commissioners Reject Political-Disclosure Rulemaking."  Obama Administration efforts to force mandatory disclosure of corporate spending on political and other advocacy activities should be viewed as primarily political rather than economic and, as such, would not serve to help shareholders evaluate corporate performance or promote shareholder value

6. "FEC Democrats Vote to Censor Books, Documentary Films."  FEC Democrats voted to assert regulatory power over books and films.  That means they believe the FEC has the power to censor certain books and documentary films.

5. "Congress Shall Make No Law: Protecting the First Amendment from Attack."  Preventing attacks on the First Amendment can only be done through fighting back against speech suppressive activity.

4. "RNLA Explains What Open, Fair and Honest Elections Mean."  By “open,” we mean a process in which all sides can have “observers” and the process is determined by legislatures well in advance.  By “fair,” we mean election officials should be from both parties and they should administer the election process in an orderly, unbiased fashion.  By “honest,” we mean free from fraud.

3. "Reactions to Donald Trump's Potential Supreme Court Justice List." One of the most popular issues for Donald Trump was his list of potential Supreme Court nominees. 

2. "Leader McConnell Won the Fight on the Scalia Vacancy."  Thank you, Sen. McConnell, for your leadership on judicial nominations and fighting to protect the judiciary from judges who will legislate from the bench and not respect the rule of law and the role of the courts.

1. "A Great Justice, Ignored Because of his Race."  The left excludes Justice Clarence Thomas from the National Museum of African American History and Culture despite his remarkable and impactful 25 years on the court.  

Republicans Didn't "Steal" Scalia Vacancy

Ed Whelan reminds us that Senate Republicans, in refusing to hold hearings on Merrick Garland's nomination to the Supreme Court, were only following the Democrats' advice (emphasis added):

I see that some on the Left are now trying to recast their huge political loss on the Scalia vacancy as a claim that Republicans “stole” the Scalia seat. Two observations:  

1. The Scalia vacancy never belonged to anyone, so it makes no sense to say that it was stolen. Or is the Left going to go beyond its “obviously fatuous” claim that the Senate had a constitutional duty to hold an up-or-down vote on the Garland nomination and now insist that the Senate had a constitutional duty to confirm Garland?  

2. Let’s assume that the political situation had been reversed: that is, that a liberal justice died in an election year while a Republican was president and Democrats controlled the Senate. It’s a very safe bet that Democrats would have taken exactly the course that Senate Republicans did.  

Indeed, then-Judiciary Committee chairman Joe Biden threatened exactly that a full 24 years ago, during the 1992 election year. And in late July 2007—more than 15 months in advance of the 2008 presidential election—Democratic senator Chuck Schumer [said] that the Senate “should not confirm another U.S. Supreme Court nominee under President Bush ‘except in extraordinary circumstances.’” . . .  

So those who imagine that the battle over the Scalia seat involved some dramatic escalation of the confirmation wars are overlooking that Senate Democrats had already baked that escalation into the process. What made the Scalia vacancy battle different from earlier battles were two simple facts: (1) this was the first time since 1991 that a president was making a nomination to a Senate controlled by the opposite party, and (2) the vacancy arose in an election year. 

The battle over the Scalia seat is likely far from over, but after the election last week, Democrats are losing the battle.  But claims that the Republicans were acting in an unprecedented fashion in the past few months are overblown.

With Trump Victory, Next Supreme Court Justice Will Respect the Rule of Law

One of the longest lasting effects of Donald Trump's victory yesterday will be his nominations to the Supreme Court.  Mr. Trump had released a list of people from which he would select the Supreme Court Justice or Justices he will nominate as President.  Clearly, this list of principled jurists who respect the rule of law and Mr. Trump's respect for the Constitution were important factors to voters.  21% of voters said the Supreme Court vacancy was a major factor in their voting decision, and those voters voted for Trump over Clinton 57% to 40%.

The Trump presidency has the potential to not only preserve Scalia's legacy but also drastically shift the Supreme Court toward respect for the rule of law and the proper role of the courts:

The political earthquake that hit Tuesday night has enormous consequences for the Supreme Court, swallowing up Judge Merrick Garland’s ill-fated nomination and dismantling Democratic hopes for a liberal majority on the high court for the first time in nearly a half-century. 

In the short term, Republican Donald Trump’s victory means that at some point next year, the nine-member court will be restored to full capacity, once again with a majority of Republican-appointed justices. . . . 

The long-term question will be Trump’s ultimate impact on the court’s membership, and whether he gets the chance to do more than choose the successor to Justice Antonin Scalia, who died in February.  

Two of the court’s liberals, Justices Ruth Bader Ginsburg and Stephen G. Breyer, are 83 and 78, respectively. Moderate conservative Justice Anthony M. Kennedy is 80. . . . All eyes will now be on the court’s oldest members, Kennedy and Ginsburg. Replacing Kennedy with a more stalwart conservative would immediately impact the court’s dynamics. He has given no indication about how long he intends to serve on the court.

The opportunity for President Trump to nominate a justice to fill Justice Scalia's seat on the Supreme Court would not have been possible but for the leadership of Leader McConnell, Chairman Grassley, and many principled Republican Senators.  The nation is indebted to these Republican Senators.

A Great Justice, Ignored Because of his Race

On September 24, 2016, the National Museum of African American History and Culture opened: 

The National Museum of African American History and Culture is the only national museum devoted exclusively to the documentation of African American life, history, and culture. It was established by Act of Congress in 2003, following decades of efforts to promote and highlight the contributions of African Americans.

Despite this, the Museum completely ignores the contributions of Justice Clarence Thomas, who ironically is celebrating 25 years on the bench this year:  

Sunday is the 25th anniversary of Clarence Thomas being sworn in as an associate justice of the Supreme Court of the United States. From his beginnings in Pin Point, Ga., where he lived in a shanty without indoor plumbing during the Jim Crow era, he has become the longest-serving black justice on the nation’s highest court. He emerged dignified from an undignified Senate confirmation and went on to produce a body of jurisprudence that has been praised by constitutional scholars across the ideological spectrum. But because he’s a black man who challenges liberal orthodoxy, his legacy has often been minimized.

His is a story that should be celebrated by all Americans. That it isn’t is a travesty.

As RNLA Member Mark Poletta details, Justice Thomas should be ranked as a great Justice regardless of his race but isn’t, in part because of his race:

Of Thomas’s approach, SCOTUSBlog’s Tom Goldstein, a well-regarded Supreme Court practitioner, says: “I disagree profoundly with Justice Thomas’s views on many questions,” but if “the measure of a Justice’s greatness is his contribution of new and thoughtful perspectives that enlarge the debate, then Justice Thomas is now our greatest Justice.”

Mainly, though, it’s that Thomas, throughout his career, never wavered from a set of principles that many liberals don’t think a black man can legitimately hold. He believes in individual rights, not group rights, a view enshrined in the Declaration of Independence. He opposes racial preferences both because they are bad policy and because they have no basis in the Constitution. Thomas held those views long before he arrived on the court, but they have been powerfully expressed in many of his opinions.

Thank you, Justice Thomas, for 25 years of faithful service to our country.  We will celebrate your career, even if liberals ignore your accomplishments. 

AG and RNLA Member Speaks About SCOTUS At RNC.

Arkansas Attorney General, Leslie Rutledge and RNLA member spoke at the RNC yesterday issuing some blistering attacks on Hillary Clinton. In particular, she took the time to call attention to the additional impact that the Presidential Election will have on the Supreme Court.

I know this race will shape the Supreme Court for generations. Do we want the late Antonin Scalia to be replaced by a liberal activist judge? Donald Trump will nominate conservative Justices who uphold the constitution, support the rule of law, and rein in out of control federal bureaucrats.

General Rutledge’s entire speech is well worth a listen.  We appreciate General Rutledge’s leadership and dedication to preservation of the Constitution of the United States of America.  

Mitch McConnell – Unsung Conservative Hero

Much like being an attorney, being a politician is often a thankless endeavor. Individuals in these positions are frequently criticized and rarely praised. Yet, we all owe a great debt of gratitude to Senate Majority Leader Mitch McConnell whose foresight and leadership in the wake of the death of a conservative icon would enable the American public to have a voice in choosing the next Justice while choosing the next President. Sen. McConnell took an unprecedented amount of flak from the left and mainstream media, but he never wavered despite the perceived backlash.

Three months after his announcement, McConnell is vindicated. He not only thwarted the president and Democrats, he averted a potential catastrophe for Republicans if a popular Obama nomination had gone forward, splitting the party in an already divisive election year. Instead, "it's been a completely unifying process," McConnell told me.

The success of McConnell's strategy hasn't been widely acknowledged. Senate Democrats are reeling from a series of tactical blunders. Senate minority leader Harry Reid attacked Charles Grassley, the chairman of the judiciary committee, more than a dozen times for not scheduling hearings for Obama's nominee, Merrick Garland. The speeches were rants, typical for Reid.

Democrats tried to embarrass vulnerable Republican senators with what they called a "9-9-9" plan: nine senators in nine states to confirm a ninth Supreme Court justice. It bombed. Now Obama is insisting the Senate has a mandate to vote on his nominee. Actually, there is no such mandate.

Lame duck nominations have been largely denounced by both sides of the aisle. The Democrats knew this, as many, including our own Commander in Chief, had participated in blocking nominations in prior years. Their attempt to force a hearing that is not constitutionally mandated in the waning year of a failed administration, whose executive officer will likely go down as one of the “Worst. Presidents. Ever.”, highlights the importance of McConnell’s actions. Being labeled as the “Worst. President. Ever.” is a distinction that the President has continued to solidify in his final year in office. 

Sen. McConnell is continuing the fight that Republicans have largely won thanks to his continued leadership.

[Obama's] trying to airdrop a Supreme Court justice on his way out the door,” McConnell noted. “He thinks he can get away with it.”

“Obama calling someone a moderate does not make him a moderate,” McConnell said.

Garland’s record of disrespecting individuals’ right to bear arms and siding with labor unions and regulators over small businesses proves he’s unfit to replace Antonin Scalia, McConnell insisted.

Indeed, while conservatives have plenty to complain about in terms of McConnell’s putting conservative efforts on the backburner, he has earned justified respect for refusing to budge on Garland, noting it should be up to Americans who have yet to vote for the next president in November.

Thankfully, we were spared from another poor decision thanks to the integrity and courage of Sen. Majority Leader Mitch McConnell. Thank you for your dedication, Sen. McConnell.

Hillary Clinton's Wisconsin Speech, Part 1: Hypocritical Attack on Citizens United

Among other things, Hillary Clinton discussed using a litmus test for potential Supreme Court justices during a visit to Madison, Wisconsin, yesterday. We addressed a similar issue some time ago coming from another Democrat, Bernie Sanders.

Hillary made several comments about election law during her speech, echoing the earlier comments from Sanders on current election law:

A lot of Americans are concerned about money in politics, and rightly so. It’s a serious problem that we have to address.  

But Supreme Court justices are appointed for life.  They’re not making decisions based on campaign contributions . . . . And consider, if you will, the dangerous turn the Court has taken in recent years toward protecting the rights of corporations over those of people. 

Now you may have heard of the case Citizens United.  The Court ruled that corporations have an unfettered right to free speech, just like you and me.  That means no limit on what corporations can spend independently to influence elections.  And – big surprise – a flood of money from rich people, corporations and special interests has poured into our politics.  

Citizens United opened the door to the creation of Super-PACs and between the 2008 and 2012 presidential elections, spending by outside groups tripled.  In 2014, the top 100 donors to super PACs spent nearly as much as all 4-million-750-thousand small donors in the country combined.  

Now the idea, I believe, that money is speech turns our Constitution upside down.  Wealth should not be privileged in the courts – in fact, it should have no privilege.  Yet at a time when inequality between working Americans and those at the top is starker than ever, the Supreme Court has given the wealthiest Americans even greater power to affect what happens in our democracy.  

. . . If the Court doesn’t overturn Citizens United, I will fight for a Constitutional amendment to limit the influence of money in elections.  It is dangerous to our country and poisonous to our politics. 

Hillary seems exceptionally concerned about super PACs. Yet the super PAC supporting her is leading the fundraising race of the super PACs supporting all candidates remaining in the field. She is benefitting from the corporate spending and speech that she rails against.

As we have detailed regarding Clinton's calls for a constitutional amendment to overturn Citizens United in the past, scholars on the right and left agree that such an amendment would have disastrous effects on the right to free speech and protect the power of the political establishment against the voice of ordinary citizens.

The assertions in the statement above speak to Clinton's misunderstanding of the importance of free speech, the nature of the political system, and the purpose and power of the Judicial Branch, especially given the clearly articulated ABA Rules of Judicial Conduct. On one hand Clinton argues that the Court has a great deal of impact and should be respected; on the other she states that it’s irrelevant and she will work to amend the constitution should the Court decide contrary to her assessment of Citizens United. 

GOP Presidential Candidates Share Their Opinions on Obama's SCOTUS Nomination

Republican Presidential candidates weighed in after President Obama made his SCOTUS nomination last week. While the commentary varies, the theme is the same throughout: Republicans want Americans to have a say in the next appointment. Donald Trump said: 

I think the next president should make the pick, and I think they shouldn’t go forward, and I believe I’m pretty much in line with what the Republicans are saying. . . . Certainly they could wait it out very easily. I would be not in favor of going forward.

Trump's point reiterates one made by Republican Senators. Let the next president choose. The court can and has functioned just fine with eight or fewer justices.

John Kasich told a crowd at Villanova University that President Obama shouldn’t “stiff the legislative body” by trying to rush through a confirmation process. Kasich stated the obvious concerns surrounding the haste with which Obama is attempting to force a hearing. Rushing such a monumental decision, one that will most certainly affect the balance of the Court, is not something that one should “rush” through or politicize. 

Ted Cruz reiterated the same message - “Let the people decide”:

Garland is exactly the type of Supreme Court nominee you get when you make deals in Washington D.C. . . . Make no mistake, if Garland were confirmed, he would side predictably with President Obama on critical issues such as undermining the Second Amendment, legalizing partial-birth abortion, and propping up overreaching bureaucratic agencies like the EPA and the IRS. We cannot afford to lose the Supreme Court for generations to come . . . . 

I proudly stand with my Republican colleagues in our shared belief—our advice and consent—that we should not vote on any nominee until the next president is sworn into office. The People will decide. I comment Mitch McConnell and Chuck Grassley for holding the line and ensuring that We the People get to exercise our authority to decide the direction of the Supreme Court and the Bill of Rights.

President Reagan once said, “We the people tell the government what it is allowed to do.” This is the principle that Republican leaders and candidates continue to reiterate in speech after speech. Let the people decide on the future of the Supreme Court.

Republican Senators Stand Strong in Refusing to Hold Hearings for Scalia's Replacement

Republican Senators hold their ground as Obama and the left seek to shift the balance of the Supreme Court. Despite the hypocrisy of both President Obama's and Senate Minority Leader Harry Reid's positions, they have criticized Republican Senators' refusal to confirm a nominee in this election year. 

A shift to the left has already begun in our nation’s highest Court. Given the Court’s recent conduct absent Scalia, it has become abundantly clear that the Court cannot afford another liberal justice. We need Republican Senators to stand strong and refuse to back down. Senate Judiciary Committee Chairman Chuck Grassley is doing just that:

“It isn’t any different if the President of the United States notifies Congress well in advanced of a piece of legislation that he’s going to veto it,” Grassley said, suggesting that many of his Iowa constituents have expressed anger at the Supreme Court itself for taking an activist role in the law. 

“Whether it’s today or tomorrow or whether it’s for the next seven or eight months, this is a very important debate that we ought to have about the constitution and about not only who’s going to be a replacement for Justice Scalia but about the role of the Supreme Court,” Grassley added. “At the grassroots of America, there’s a real feeling of ‘Is the Supreme Court doing what the Constitution requires?'” 

It is uncontested that the President has the right to nominate a candidate; however, the Senate also has the right to choose whether or not to hold a hearing on his nomination. We should support the actions of our Senators who are standing up for what is right and refusing to bend to the strong arm tactics of the Democrats. It is clear to many that the President is focused on dealing a parting blow to conservatism. After eight years of a failed administration, many feel President Obama has done enough. Justice Scalia spent the entirety of his Supreme Court career protecting the Constitution and the rights therein. Scalia’s replacement is an important decision that should be left until after the people have spoken this November.

Supreme Court Nominations in Election Years: Part 2 - The Schumer Rule

The practice of the Senate not confirming Supreme Court nominees in an Election Year has not been made up by Republicans in response to Justice Scalia's untimely passing.  It is a rule first outlined by the Democrat poised to replace Sen. Harry Reid as Minority Leader.   


In July 2007, fully 18 months before the end of President George W. Bush's second term of office, Sen. Chuck Schumer advocated blocking any further Bush nominees to the Supreme Court:

[F]or the rest of this President’s term . . . :  We should reverse the presumption of confirmation.  The Supreme Court is dangerously out of balance. . . . Given the track record of this President and the experience of obfuscation at the hearings, with respect to the Supreme Court, at least:  I will recommend to my colleagues that we should not confirm a Supreme Court nominee EXCEPT in extraordinary circumstances.

As we noted in Part 1 of this series, in modern times, Supreme Court vacancies that occur in election years are traditionally not filled until after the election, giving the people an opportunity to speak on the issue.  The Senate holds the constitutional power to advise and consent on the president's nominees, but per Sen. Schumer's own rule, the Senate should not confirm a potential Supreme Court justice nominated by a lame-duck president.

Supreme Court Nominations in Election Years: Part 1

The RNLA mourns the sudden passing of Justice Antonin Scalia, along with the rest of the country.  His passing leaves a vacancy on the Supreme Court, and though Justice Scalia can never truly be replaced, a justice to succeed him will be nominated by the President and confirmed by the Senate.  The justice to succeed Justice Scalia should not be nominated by this President and confirmed by this Senate, however.

In modern American history, a Supreme Court vacancy that arises in an election year is not filled until after the election.  As Shannen Coffin explains:

[T]here simply is no precedent in modern times for filling a vacancy that arises in an election year.  You have to go back to Benjamin Cardozo in 1932 to find a similar circumstance.  Democrats have pointed to the appointment of Anthony M. Kennedy in 1988, but that vacancy arose in June 1987, the summer before the election, and only remained open because Democrats had already blocked one of the most qualified nominees in our history from the Court (Robert Bork).

Ed Whelan notes the importance of this particular vacancy, given Justice Scalia's intellectual force and analytical consistency:

[T]here has never been an election-year confirmation that would so dramatically alter the ideological composition of the Court. . . . Senate Republicans would be grossly irresponsible to allow President Obama, in the last months of his presidency, to cement a liberal majority that will wreak havoc on the Constitution. Let the people decide in November who will select the next justice.

It is only proper for the American people to have an opportunity to exert a measure of control on an institution that is normally not open to the influence of the public will.  The people are not able to select the nominee, but they should be able to select the person who selects the nominee.

Republican Leadership Reacts to Selecting a Successor After Scalia's Passing

While the RNLA mourns the loss of Justice Antonin Scalia, the importance of finding the right successor, especially in a presidential election year is paramount.  In a press release yesterday, Senate Majority Leader Mitch McConnell stated:

“The American people should have a voice in the selection of their next Supreme Court Justice.  Therefore, this vacancy should not be filled until we have a new president.”

Echoing Leader McConnell’s sentiments, Senate Judiciary Chairman Chuck Grassley stated:

“The fact of the matter is that it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year.  Given the huge divide in the country, and the fact that this President, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.”

The RNLA thanks Leader McConnell and Chairman Grassley for their leadership as we not only mourn the loss of a champion of the Constitution, but for setting the course for selecting a successor after the election to defer to the American people.

SCOTUS Denies Requests for Proof of Voter Citizenship

The Supreme Court refused to hear an appeal from Arizona and Kansas that left in effect a November 2014 ruling from the 10th U.S. Circuit Court of Appeals that the states cannot require the documentation for applicants using the “federal form.”

The decision denied the states’ request to change its registration requirements to include proof of citizenship for those applying to vote in federal elections, as the states require for those using their state forms.

Kirs Koback, Kansas Secretary of State, who filed the joint appeal to the federal appellate court decision with Arizona Secretary of State Michele Reagan, says,

The Supreme Court decision not to review was not particularly surprising given the fact that there was no circuit split yet.

Kobach expects the 11th Circuit, which has jurisdiction over the two states, to eventually weigh in, according to Roll Call. Kobach also said,

States allow people to use the federal form to register for state elections as a courtesy, but are not required to do so. So I would encourage people to continue to provide proof of citizenship. That is what the people of Kansas overwhelmingly wanted, that is what I ran on and that is what the Kansas Legislature overwhelmingly voted for. That remains the law in Kansas.

Now states will have a more difficult time preserving the integrity of federal elections in their states. Currently, the federal agency's form only requires applicants swear eligibility under penalty of perjury. Therefore, if a state wishes to use the federal form for their own elections then states will have to establish citizenship some other way.

Why it matters:

In a study, two Old Dominion Professors analyzed survey data from the Cooperative Congressional Election Study, to find that 6.4 percent of all non-citizens voted illegally in the 2008 presidential election, and 2.2 percent in the 2010 midterms. Given that 80 percent of non-citizens lean Democratic, they cite Al Franken ’s 312-vote win in the 2008 Minnesota U.S. Senate race as one likely tipped by non-citizen voting. As a senator, Franken cast the 60th vote needed to make Obamacare law. The authors write,

We find that some non-citizens participate in U.S. elections, and that this participation has been large enough to change meaningful election outcomes including Electoral College votes, and Congressional elections. Non-citizen votes likely gave Senate Democrats the pivotal 60th vote needed to overcome filibusters in order to pass health care reform and other Obama administration priorities in the 111th Congress.

Kobach plans to send a request presented differently to the EAC to prevent alien votes cancelling out votes of U.S. citizens.  Every fraudulent vote disenfranchises a legal voter.