Guest Post

  • March 17, 2016
    Guest Post

    by Jim Thompson

    Leading progressive groups have shown broad support for President Obama’s nomination of Merrick B. Garland to the Supreme Court, reports Niraj Chokshi at The Washington Post, quoting ACS President Caroline Fredrickson who states, “His credentials cannot be questioned, he is a person of integrity and he would bring an understanding of how the world works to the nation’s highest court.”

    In The New York Times, ACS Board member Linda Greenhouse blasts the obstructionist tactics of senate Republicans and invites “another Bork battle,” noting that Robert Bork at least received public hearings.

    In the Huffington Post, ACS Board member Adam Winkler lauds Chief Judge Garland as an excellent choice to fill Justice Scalia’s vacant Supreme Court seat.

    Polls show “most Americans want hearings and a vote on a Supreme Court nominee,” says ACS Board member Erwin Chemerinsky on CNN.

    Michael Gerhardt, co-faculty advisor to the UNC Law student chapter, wrote in Slate that by nominating Merrick Garland, President Obama “showed the nation what a merit appointment looks like.”

  • March 15, 2016
    Guest Post

    by Verna Williams, Judge Joseph P. Kinneary Professor of Law, University of Cincinnati College of Law

    For those concerned about the Senate’s unprecedented power grab in refusing to consider anyone President Obama nominates to the Supreme Court, Iowa Senator Chuck Grassley has an answer: The Judiciary Committee is merely following the Biden Rules.

    That’s what he cited twice in the Committee’s first meeting since Justice Scalia’s sudden death last month. Mr. Grassley’s casual reference suggested that, rather than engaging in unparalleled obstructionism, the Republican Senators were engaging in one of their esteemed traditions, like eating bean soup in the Capitol cafeteria. But, the text of Mr. Biden’s 1992 speech on the Senate floor suggests otherwise.

    It was late June. The nation and Senate were recovering from bruising hearings to confirm Justice Thomas. Re-examining the Judiciary Committee’s handling of Professor Anita Hill’s allegations of sexual harassment, Mr. Biden explained that “many questioned whether we took Professor Hill’s charges seriously, investigated them thoroughly, and disseminated them appropriately.” While Mr. Biden concluded that he and his colleagues had done their best, given Hill’s desires for confidentiality, he nonetheless believed a new set of rules should apply going forward. He announced that the Committee would:

    • Advise sources that any information the Committee obtained would be placed in a nominee’s FBI file and be available on a confidential basis to the Senate before voting on the nomination;
    • Hold closed, confidential sessions about all Supreme Court nominees; and
    • Meet routinely with nominees in closed session, on the record, and under oath about any investigative charges.

    Throughout the process, Senators would be able to review any documents, reports, or transcripts in a manner that protected confidentiality. Those are the Biden Rules, and they appear toward the end of his speech.

  • March 14, 2016
    Guest Post

    by B. Jessie Hill, Associate Dean for Academic Affairs and Judge Ben C. Green Professor of Law, Case Western Reserve University School of Law

    On March 4—just two days after the oral argument in Whole Woman’s Health v. Hellerstedt, the challenge to Texas’s abortion restrictions—the Supreme Court jumped into the abortion fray once again. This time, it vacated the Fifth Circuit’s stay of a Louisiana district court’s decision holding an admitting-privileges law—which was functionally identical to the one at issue in Whole Woman’s Health—facially unconstitutional. Thus, in June Medical Servs. v. Gee, the Supreme Court again blocked a state’s requirement that physicians performing abortions possess hospital admitting privileges while the issue gets hashed out before the Court this Term.

    It is hard to know what to make of the Supreme Court’s terse order, which briefly references the similar stay order in Whole Woman’s Health and contains no explanation. Indeed, although the order mentions that Justice Thomas dissented from the Court’s decision to keep the Louisiana law enjoined, we can’t even know for certain the actual vote count.

    What is surprising about June Medical, however, is not so much that the Supreme Court stepped into the Louisiana case, but that the Fifth Circuit chose to stay the Louisiana decision in the first place despite the fact that the issue was already pending in the Supreme Court. The Fifth Circuit opinion noted in passing, in footnotes, that Whole Woman’s Health was currently pending in the Supreme Court but elliptically and puzzlingly insisted that that case did not raise the same legal issues. It also declined to see any sort of signal to the Fifth Circuit in the Supreme Court’s earlier stay of the Texas admitting-privileges requirement now pending before the Court. Against this backdrop, the Fifth Circuit’s choice to stay the district court’s injunction, based on its preliminary evaluation of the merits of the undue burden claim, looks almost defiant.

    It is true, after all, that abortion clinics rarely have the wherewithal to reopen once they are forced to close for a period of time: Lease payments cannot be made without income from procedures, so equipment and buildings have to be surrendered, physicians and employees find other employment, and the costs of reopening are often prohibitive. According to the plaintiffs in June Medical, the entire state of Louisiana could be left with only one abortion clinic if the law took effect. The Fifth Circuit’s stay, if not vacated by the Court, could thus have had a lasting impact on abortion access in Louisiana, whatever the Court’s ultimate decision on the validity of such admitting-privileges requirements.

  • March 11, 2016
    Guest Post

    by Jonathan C. Carlson, Professor of Law, The University of Iowa College of Law. The views expressed are his own.

    The Constitution directs the President to nominate persons to fill vacancies on federal courts. No one else is authorized to make judicial nominations. Only the President has that power. The Senate’s role is to consider the President’s nomination and decide whether to approve it. If the Senate gives its advice and consent, the President may appoint the nominee to the federal bench.

    This approach to judicial appointments was carefully crafted to create a balance of power between the President and the Senate. The goal, as Alexander Hamilton explained, was to avoid selections based on senators’ “party likings and dislikes, partialities and antipathies, attachments and animosities.”

    Senator Chuck Grassley, chair of the Senate Judiciary Committee, evidently doesn’t care for Alexander Hamilton’s Constitution. When two federal judgeships recently opened in Iowa, Senator Grassley decided that he would himself do both the nominating and the approving of the candidates. To this end, Grassley created his own personal “Judicial Selection Commission.” The chair of the commission, to Grassley’s credit, was a well-respected attorney who, as head of the state bar association, had resisted politicization of state judicial retention elections. But, in contrast to nonpartisan judicial nominating commissions used by senators elsewhere, Senator Grassley’s judicial selection commission was otherwise built to serve “party likings.” Four of the five members were longtime Republican Party activists, and the commission’s candidate-screening process reportedly included “pointed questions” of a partisan-litmus-test variety.

    President Obama duly nominated the persons selected by Grassley. We can be sure, I think, that Grassley made it clear to Obama that no nominee other than Grassley’s nominees would get a fair hearing in the Senate. We can also be sure that moving on Grassley’s selections was the price Obama paid to secure Senate action on a few of Obama’s own judicial nominees.

    But Obama’s gain was minimal. Since February 11, when the second of Grassley’s personal nominees was confirmed, Grassley and the Senate leadership have refused to allow the Senate to vote on any further judicial nominations, even though many nominees have been waiting months for a decision.

  • March 9, 2016
    Guest Post

    by Geoffrey R. Stone, Edward H. Levi, Distinguished Service Professor of Law, The University of Chicago

    * This post was excerpted from Professor Stone’s statement to the Senate Democratic Steering and Outreach Committee.

    In a recent piece in The Washington Post, Miguel Estrada and Benjamin Wittes proclaimed that the only rule that now governs the confirmation process for Supreme Court justices “is the law of the jungle: There are no rules.”

    This is a profoundly misleading – and dangerous – statement. If taken seriously and acted upon, this misconception would undermine 225 years of well-settled tradition and throw the Supreme Court confirmation process into a state of partisan chaos that would damage both the rule of law and the Supreme Court as an institution.

    In fact, when we take a deep breath and actually examine the performance of the Senate over time, it is clear that the Senate defers to the president in these matters as long as the president puts forth nominees who are clearly qualified for the position and who are reasonably moderate in their views. Indeed, this has been the outcome in every single nomination in the last 60 years and, as far as I can discern, in every nomination in American history.

    Moreover, this is true even when the senators disagree with a nominee’s judicial philosophy, even when the Senate is controlled by the opposing party, even when the nominee’s confirmation is likely to have a significant impact on the balance on the Court, and even if the final year of a president’s term. When all is said and done, nominees who are both qualified and moderate are confirmed. Period.

    The “no rules/law of the jungle” assertion is premised primarily on the fact that since the Supreme Court’s 2000 decision in Bush v. Gore, members of the Senate have tended to vote in a more partisan manner than in the past. This is true. In the Roberts, Alito, Sotomayor, and Kagan confirmations, members of the opposing party cast only 26 percent of their votes to confirm, whereas in the five preceding Supreme Court nominations senators from the opposing party cast 73 percent of their votes to confirm.*

    This is, indeed, a troubling trend. It is due largely to the much greater involvement of interest groups in the confirmation process, a phenomenon that raises the political stakes for members of the Senate and gives them an incentive to vote in a more partisan manner. But it is important not to blow this out of proportion. In fact, in the years since 2000 every one of those four nominees was confirmed by the Senate, and they were confirmed with appreciable bipartisan support.