by Peter M. Shane, Professor of Constitutional and Administrative Law at The Ohio State University’s Moritz College of Law. The views in this essay are entirely his own.
Contrary to a recently published opinion piece entitled, “There is no principled reason to vote against Gorsuch,” many such reasons exist to oppose the nomination of Judge Neil A. Gorsuch to succeed the late Justice Antonin Scalia. This is especially so if you have principled objections to judicial methodologies that purport to constrain judges, but which, in the hands of conservatives, lead quite predictably, even if not quite inevitably to politically conservative outcomes.
But even for Senators who think taking a judge’s legal views into account is somehow inappropriate, a perfectly principled reason to oppose the Gorsuch nomination is to avoid rewarding Senate Republicans’ 2016 assault on constitutional governance and the Obama presidency. The issue is not just comeuppance for the “mistreatment of Judge Merrick Garland” as a matter of personal unfairness, although I agree “an exceptionally fine jurist was treated shabbily.” The issue is whether there remains any institutional penalty for sabotaging constitutional norms.
Republicans defending last year’s fiasco have offered a breathtaking exercise in revisionist history. Even now, they speak of a nonexistent presidential “tradition” of not nominating Justices in the last years of their respective terms. Yet the only reason why no president in the last eighty years nominated a Justice in the last year of his term is that, for the last eight decades, no Supreme Court vacancy arose during an election year. One might as well refer to a 228-year tradition of not nominating Justices to fill nonexistent seats!
by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar & Clinical Professor of Law; Director, Center for Immigrants’ Rights Clinic, Penn State Law
On March 6, 2017, President Donald Trump issued a “revised” Executive Order titled “Protecting the Nation from Foreign Terrorist Entry in the United States” in an attempt to avoid the catalogue of lawsuits brought against the first. However, the revised EO suffers from the same legal and policy flaws as the first by shutting the door on Muslims and refugees. Every country targeted by the revised EO is comprised of Muslim majority populations: Iran, Libya, Somalia, Sudan, Syria and Yemen. While the revised EO no longer lists “Iraq,” nationals from the country are singled out for special review in another section of the EO. Whether the list of countries is six or seven, Muslims remain the target.
The revised EO applies specifically to those outside the United States without a valid visa at 5:00 p.m. on Jan. 27, 2017 and on the effective date, which begins one minute after midnight on March 16, 2017. The revised EO makes a few adjustments to the first by carving out exceptions for select people like green card holders, dual nationals and those already granted refugee-related protection. It also creates a waiver process for nationals of the six countries who seek entry during the 90-day ban. Waivers may be issued on a case-by-case basis for those who at a minimum prove that denial of entry would cause “undue hardship,” entry would not pose a threat to national security and entry would be in the “national interest.” How these waivers will be implemented is unknown but the revised EO lists nine scenarios where a waiver may be appropriate like those with previous “significant” contacts,” business, or professional obligations in the United States and those coming to visit a close family member. Despite the long list of examples contained in the EO there is no assurance that people will actually receive waivers or that agencies will be equipped to adjudicate them. The revised EO maintains the 120-day suspension to the refugee program and slash in the total number of refugees by over one-half from 110,000 to 50,000. Exceptions are available on a case-by-case basis for qualifying refugees through a “national interest” formula. Unlike the first EO, the revised version no longer contains an exemption for religious minorities or an indefinite ban on Syrian refugee admissions. Notably, all refugees, including those from Iraq and Syria are affected by the revised EO.
On March 29, 2017, the Supreme Court will hear oral arguments in the consolidated cases of Turner v. United States and Overton v. United States. The Court does not rule upon questions pertaining to prosecutorial misconduct and the State’s duty to disclose exculpatory evidence very often. When it does, it tends to rely on decisions handed down decades ago despite evidence that courts struggle to enforce the relevant principles consistently and appropriately. The Turner-Overton matter thus presents both an opportunity and a challenge to the justices. The opportunity? An uncommon occasion upon which it can clarify principles and curtail the confusion that permeates lower courts’ opinions. The challenge? Moving beyond the facts presented and penetrating the deeper questions that reside beneath the surface.
The question presented by these cases is a relatively narrow one: whether the Petitioners’ convictions must be set aside under Brady v. Maryland. That question is one the Court itself generated; the Petitioners initially asked the Court to resolve thornier questions that sometimes arise when the State fails to turn over all exculpatory evidence before trial. While it appears that SCOTUS will most likely take its well-worn minimalist approach in the Brady due process context here, several pleadings demonstrate that deeper, systemic concerns warrant attention.
On Tuesday, Feb. 28, 2017, the House Judiciary Committee, voting along party lines, rejected my Resolution of Inquiry, H.Res. 111 directing the Department of Justice to provide the House of Representatives with any and all information relevant to an inquiry into President Trump and his associates’ conflicts of interest, ethical violations—including the Emoluments Clause—and connections and contacts with Russia. The Resolution of Inquiry, which was reported unfavorably out of the House Judiciary Committee in a party-line vote of 18-16, was the first time Members of Congress had a recorded vote on legislation concerning an investigation of Donald Trump's conflicts and Russia ties.
Each day, more questions arise concerning President Trump’s foreign business entanglements and his inexplicably cozy relationship with Russia. Each day, Democrats on this Committee, and on other committees, have requested hearings and investigations into these serious issues. And yet, each day, with a few exceptions, we have been met with a deafening silence from our Republican colleagues.
But my resolution was only a first step to demand accountability from this administration. It must be followed by similar resolutions in other committees. Every day there are new revelations that reveal deeper conflicts. Already, Attorney General Sessions has been forced to recuse himself from any investigation into Russian contacts with the Trump campaign. That recusal does not relieve Congress of its independent obligation to do its job as an independent check on the executive. We must keep up the pressure.
by Simon Lazarus, Senior Counsel to the Constitutional Accountability Center
Wells Fargo’s bogus accounts mega-fraud enabled consumer champions to spotlight the permissive legal environment that led the bank’s top management to believe they could get away with it. In congressional hearings, Democrats in particular pressed Wells CEO John Stumpf on the bank’s use of mandatory arbitration clauses in their standard-form, non-negotiable contracts. Such clauses typically force consumers and employees to sign away their rights to challenge any form of company illegality in court, or to band together with other victims to seek class relief from small-bore, large-scale fraud like that perpetrated by Wells Fargo. After the Senate hearing, six Senate Democrats observed in a letter to Stumpf, that “There can be little doubt . . . that the ability to force customers into secret arbitration proceedings allowed Wells Fargo to continue its outrageous practices with impunity for far too long.”
Now, with President Trump’s nomination of Judge Neil Gorsuch to the Supreme Court, and Senate Judiciary Committee hearings set for March 20, a new opportunity looms to further bump up awareness of the real-world impact of the judiciary’s pro-industry tilt, and, especially, the role of the conservative bloc of high court justices in fostering that lax environment. In particular, senators can probe the pattern of Judge Gorsuch’s opinions favoring business litigants over individual consumers and workers that has led business legal advocates to read his record to “suggest that his confirmation would restore the pro-arbitration direction of the Court [before Justice Scalia’s death cost the conservatives their majority]).”