Guest Post

  • 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.

  • March 8, 2016
    Guest Post

    by Ruben J. Garcia, professor of law, University of Nevada, Las Vegas, William S. Boyd School of Law

    Imagine it is January 20, 2017. The Republican nominee for president is being sworn in on the steps of the Capitol. But Democrats have flipped the Senate with 54 seats to the Republicans’ 46 and now control the Senate Judiciary Committee. The Supreme Court has operated with eight justices for 11 months. Now imagine the Democratic leadership of the Senate proclaims its intention not to consider the nomination of the Republican president until any party has 60 votes so it can prevent any nominee from being confirmed without a clear majority of the “people’s branch.”

    This scenario is the mere flip side of what the Senate leadership is currently doing by preemptively announcing that they will not meet with or hold a hearing on any Supreme Court nominee until the next president is inaugurated. Based on the precedent they are setting now, nothing compels Congress to hold a hearing in 2017, either. In fact the Constitution’s text is very brief on this point. Article II, Section 2, Clause 2 of the Constitution gives the president the power to appoint a number of offices in the Executive Branch, but also judges in the courts: “The President . . . shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court . . . .”

    The purported justification, if any, of the Senate’s refusal to act is not constitutional but political, as they have all but admitted. Senate Majority Leader Mitch McConnell said, “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.” The fact that President Obama won the 2012 election with 62 percent of the Electoral College appears not to factor into their calculus. But the same justification can also be given after the presidential election, with divided control of the branches, suggesting that the will of the American people is not really clear.

  • March 7, 2016
    Guest Post

    by Harry BaumgartenPartner Legal Fellow, Voting Rights Institute

    Ten State Caucuses Roll on Shabbos – and That’s Not Okay

    This past Saturday, four state parties held caucuses to select first round delegates in the presidential nomination process. Caucuses generally require voters to show up in person, although the rules differ by state and party, and many caucuses are now more similar to traditional secret ballot primaries. Detractors of the caucus system claim that it is undemocratic, hard to oversee and privileges voters who have the time and passion to attend events in person. These problems are augmented by Saturday caucuses, which can structurally exclude Sabbath observant Jews, Seventh Day Adventists and other Saturday Sabbath observers who abstain from writing, travelling long distances, using electricity or other activities necessary to caucus during this time.

    To be fair, Saturday caucuses are generally intended to make it easier for the vast majority of participants to vote without missing work. The incidental effect of Saturday caucuses on religious minorities is also starkly different from the racially discriminatory voter ID lawsrollbacks in early votingdraconian restrictions on voter registration drives, and rampant racial gerrymandering maps across the country that are clearly intended to disenfranchise specific groups for partisan political gain. Likewise, Saturday Sabbath observers comprise only a tiny fraction of the population in the states that hold Saturday caucuses—Alaska (D), Hawaii (D), Kansas (D & R), Kentucky (R), Maine (R), Nebraska (D),Nevada (D), Washington (D), Wyoming (D).[*]

    However, the fact that some state parties are able to hold caucuses on Saturdays without disenfranchising groups on the basis of religious practice demonstrates that it is possible for other state parties to balance the convenience of most voters with the rights of religious minorities.

  • March 4, 2016
    Guest Post

    by Jill E. Adams, J.D., Chief Strategist, SIA Legal Team; Executive Director, Center on Reproductive Rights and Justice

    Anyone who’s read the transcript or colorful dispatches from Wednesday’s oral arguments in the Whole Woman’s Health case knows the four liberal-leaning Justices took some of the swagger out of Texas Solicitor General Scott Keller.

    What Knocked Keller Off His Lone Star High Horse?

    That would be many illuminating laser lines of questioning, among them Justice Breyer’s about how closing facilities, cutting off clinical access to safe medications and procedures, delaying abortions until later in pregnancy, and forcing women onto freeways and into overnight stays hundreds of miles away from home just might lead to an increase in the number of women who end their own pregnancies outside of the formal health care system. Justice Breyer and his sistren repeatedly call out the illogic of these cascading effects flowing directly from the state’s dementedly disingenuous claim of wanting to enhance women’s health by enacting the sweeping set of anti-abortion laws that is HB2.

    What Happens When There Is a 75 Percent Reduction in the Number of Clinics?

    Here’s a hint: It isn’t fewer abortions.

    Justice Breyer correctly points out that excessive restrictions on abortion provision limit clinic access and increase the necessity for self-administered abortion care. The Texas Policy Evaluation Project report concluded that as many as 100,000 women in Texas have already attempted to end their own pregnancies outside the formal medical system. Global data have consistently demonstrated that highly restrictive laws do not reduce the abortion rate, they simply relocate the site of abortion care from the hospital to the home.

    Before your mind goes conjuring up gruesome images, take note that this is not your grandmother’s self-induced abortion. Coat hangers and other dangerous methods, while still occasionally employed, have largely given way to safer methods. More often than not, the women in the TxPEP report, and other studies, used traditional herbs or safe and effective pharmaceutical pills purchased online―the same pills they would be prescribed by a healthcare professional for a fraction of the costs.

    What Abortion Access Looks Like Under HB2 for People Living in Poverty

    The abortion costs borne by people living in poverty are much higher than one might think. A pregnant woman in Texas who is struggling to make ends meet may be shocked to discover that her health insurance doesn’t cover abortion. Like the rest of the 13.5 million women of reproductive age in the United States who rely on Medicaid, she’ll have to pay out of pocket for the abortion medication or the procedure, both of which cost about $500 in the first trimester. Tack onto that the price of bus tickets or gas, which could be high if she’s one of the 10,000 women who live more than 150 miles from the nearest abortion provider under HB2. Plus, she has to come up with money for a place to stay overnight and child care for the kids she had to leave behind. That’s all assuming she can afford the lost wages for the days away from work. All told, securing an abortion can cost some families half a month’s pay.

    Mustering Bravery and Ingenuity to Secure an Abortion

  • March 3, 2016
    Guest Post

    by Jamal Greene, vice dean and professor of law, Columbia Law School. Professor Greene teaches and writes in the areas of U.S. constitutional law and theory, federal courts, and comparative constitutional law.

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

    The duty of the Senate in regards to its constitutionally enumerated functions is measured by whether its exercise of those functions serves the Constitution’s purposes and is consistent with well-established institutional practices. By that measure, the Senate has a constitutional duty to give due consideration to anyone nominated by the president to fill a Supreme Court vacancy. In the modern history of the nation, there is no precedent for the Senate’s deliberately refusing to vote on a nominee to a vacant Supreme Court seat, whether during an election year or at any other time.

    I. The Constitutional Duty to Consider Supreme Court Nominations

    Republicans currently hold a majority of seats in the Senate and on the Senate Judiciary Committee. Accordingly, should the party remain unified, it has the capacity to refuse to schedule a hearing on any executive nomination or to refuse to report a presidential nominee out of committee. A government institution’s capacity to exercise political power is not, however, the measure of its responsibility under the Constitution. Rather, constitutional duty is best measured by an institution’s exercise of the enumerated responsibilities necessary to serve the Constitution’s purposes.

    The Constitution explicitly informs us of those purposes. The Preamble states that “We the People” establish the Constitution in order to, among other things, “establish Justice.” The Framers believed that part of the reason behind the failure of the Articles of Confederation was its failure to provide for any federal court system. As Alexander Hamilton wrote in Federalist 78, “In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out.” The Supreme Court was among the major innovations of the new Constitution. Unlike all other federal courts and indeed all other institutions subject to executive appointment, the Supreme Court is established by the Constitution directly. Its existence does not depend on congressional action, and Congress—much less the Senate acting unilaterally—does not have the authority to disestablish it.

    It is no surprise, then, that the Constitution specifically enumerates the President’s power to “nominate, and by and with the Advice and Consent of the Senate . . . [to] appoint . . . Judges of the supreme Court . . . .” The Framers did not contemplate the use of the Senate’s advice and consent power solely to run out the clock on a presidential appointment. As Hamilton speculated in Federalist 76, rejection of a nominee “could only be to make place for another nomination by [the President].”

    Viewing the appointments power as a whole confirms the Framers’ assumption that the President and the Senate would work together to ensure a functioning government. When the Senate is in recess, the President has the power to appoint officers to fill vacancies, including on the Supreme Court. This power implies that when the Senate is in session, it is expected to act on the President’s nominations. Past presidents have used the power of recess appointment for Supreme Court nominees, including for three nominees of President Eisenhower. Although the Senate expressed its disapproval of this practice in a 1960 “sense of the Senate” resolution, that resolution notably included an express exception for recess appointments “to prevent or end a breakdown in the administration of the Court’s business.”