• March 22, 2016

    by Jim Thompson

    At a news conference Sunday, Sen. Sherrod Brown (D-Ohio), joined by B. Jessie Hill, faculty advisor to the Case Western Law student chapter, called on his Senate colleagues to do their jobs and give Merrick Garland fair consideration, reports the Morrow County Sentinel.  

    In the Boston Globe, Martha Minow and Deanell Tacha, both of whom have spoken at ACS events, warned that the Senate’s “refusal to proceed severely injects politics into the selection process and jeopardizes the effective operation of our nation’s highest court.”

    Republican obstructionism is rooted in conservative lawmakers’ efforts to “use the high court in an aggressive and political way to reverse decades of progressive legislation,” writes E.J. Dionne, Jr. in The Washington Post.

    Ahead of Wednesday’s oral arguments, Leslie Griffin previews Zubik v. Burwell at Hamilton-Griffin on Rights, stating, “Zubik will test the scope of religious exemptions and accommodations to the contraceptive mandate under the Religious Freedom Restoration Act (RFRA).”

  • March 21, 2016
    Guest Post

    by Jeremy Paris, Former Chief Counsel for Nominations for Sen. Patrick Leahy

    *This post first appeared on the blog of The City Club of Cleveland. Join Jeremy Paris and the ACS Northeast Ohio Chapter in Cleveland this Thursday, March 24 for a discussion of the Supreme Court vacancy.

    As chief nominations counsel to Senator Patrick Leahy, I worked on the Senate Judiciary Committee’s consideration of the last five nominations to the U.S. Supreme Court. On the day we learned of Justice Scalia’s death, I believed the focus would be on his life and legacy, as it had been upon the death or resignation of justices in the past. Instead, the Republican Senate leadership immediately declared that they would not allow the Senate to consider any person nominated by President Obama to fill the vacancy created on the Supreme Court. This is a stunning position, contrary to the history and practice of the Senate’s constitutional role on Supreme Court nominees.

    The spurious initial claim that Presidents are never allowed to fill Supreme Court vacancies in presidential election years should have ended with a simple Wikipedia search that turned up Justice Anthony Kennedy’s unanimous confirmation in 1988, the final year of President Reagan’s term. As Senator Lindsey Graham, a well-respected Republican member of the Judiciary Committee admitted recently, an across-the-board prohibition against a President appointing a Supreme Court Justice in the final year of a term would set a new and dangerous precedent.

    The President reached out to Republican and Democratic Senators to consult and has now fulfilled his constitutional duty by nominating Chief Judge Merrick Garland of the DC Circuit. Judge Garland’s qualifications for the Supreme Court look like something out of central casting. After graduating with honors from Harvard Law School, he clerked for two legendary legal giants―Second Circuit Judge Henry Friendly and Supreme Court Justice William Brennan. During his career as a federal prosecutor, Merrick Garland led the investigation and prosecution of Timothy McVeigh for the tragic Oklahoma City bombing.

    In nearly two decades on the D.C. Circuit, Judge Garland has developed a bipartisan reputation as a smart, fair and impartial judge. As the Chief Judge of a unique court that handles complex and controversial cases, that is not easy. Along the way, numerous Republicans, including former Judiciary Committee Chairman Orrin Hatch, have cited Chief Judge Garland as the kind of consensus nominee who should be confirmed to the Supreme Court.

  • March 21, 2016

    by Jim Thompson

    In the Milwaukee Journal Sentinel, ACS Board member Timothy Burns says the conservative justices of the Supreme Court can end the vacancy crisis by threatening to resign at the end of the current term unless the Senate fulfills its constitutional “advice and consent” duty.

    In the Huffington Post, former ACS Board member Geoffrey Stone, current co-faculty advisor to the University of Chicago Law School Student Chapter, opines that the Senate’s “advice and consent” role requires the chamber to confirm any Supreme Court nominee who “is well-qualified and reasonably moderate in his views.”

    In The New York Times, Adam Liptak comments on Merrick Garland’s judicial record, providing a holistic overview of his extensive career on the bench.

    Despite criticism from gun rights activists, it’s “impossible to tell” what Merrick Garland’s stance on gun control is, says Duke Law ACS Student Chapter co-faculty advisor Joseph Blocher in The Trace.

  • March 18, 2016
    Guest Post

    by Adam Shah. Shah worked for D.C. nonprofits on issues related to the Supreme Court nominations of John Roberts, Harriet Miers, Samuel Alito, Sonia Sotomayor, and Elena Kagan.

    Should Republican senators give a vote and a hearing to President Obama's Supreme Court nominee Merrick Garland in an election year? Rather than argue over the Biden Rule or Senate Majority Leader Mitch McConnell's earlier statements, we should look at the most relevant precedent: unelected President Gerald Ford's nomination of John Paul Stevens late in Ford's term in office.

    The seat Ford filled became vacant on November 12, 1975, less than a year before the next presidential election. But even more importantly, unlike President Obama who has been elected president twice by majorities of American voters, Ford was the only person in history to occupy the White House without being elected either president or vice president. Then-President Richard Nixon selected Ford as Vice President when the incumbent vice president, Spiro Agnew, resigned. Ford became president when Nixon, in turn, resigned.

    In addition, the seat Ford filled was previously held by one of the most liberal justices ever to sit on the Court, William O. Douglas, the last nominee of Franklin D. Roosevelt remaining on the high court. Douglas is best known for holding that the Constitution contained a right to privacy in in Griswold v. Connecticut, a case that paved the way for both Roe v. Wade and Obergefell v. Hodges. Not only that, Nixon had already named four justices to the Court, who had already begun reversing many liberal precedents. This would give the Republicans a crucial fifth justice.

    If there was ever a good reason to hold an intervening election before filling a vacancy, it was this occasion: An unelected conservative president was trying to fill the vacancy less than a year before an election caused by the retirement of a liberal justice from a court in ideological flux.

    Yet Democrats, who controlled the Senate, moved quickly on Stevens' nomination, confirming him in a little more than a month after Douglas retired. As a result, even though Democrat Jimmy Carter went on to win the White House in 1976, he never had a vacancy to fill.

  • March 18, 2016

    by Jim Thompson

    ACS President Caroline Fredrickson comments to MSNBC about President Obama’s Supreme Court nomination, Merrick Garland.

    Ruben J. Garcia, faculty advisor to the ACS student chapter at UNLV Boyd School of Law, tells KSNV News that Merrick Garland is “a well-respected judge, who has a lot of people on both sides of the aisle supporting him.”  In an op-ed for the Reno Gazette-Journal, Garcia adds that the “advice” portion of the Senate’s “advice and consent” duty requires at least a hearing on Garland’s nomination.

    At CNN, ACS Board member Erwin Chemerinsky highlights Merrick Garland’s qualifications to serve on the Supreme Court.

    Lena Zwarensteyn, ACS director of strategic engagement, appears on the Supreme Court Watch podcast to discuss the Supreme Court nomination.

    Election law expert and frequent ACS speaker Rick Hasen writes about “soft” voter ID laws in The Atlantic.