Fox's conspiracy theorist judge touts his role in getting Justice Gorsuch nominated for the Supreme Court
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NBC’s Chuck Todd and Fox’s Chris Wallace failed to explain Republican senators’ unprecedented obstructionism of former President Barack Obama’s judicial nominees when discussing a 2013 rule change made by Senate Democrats to forbid the filibustering of judicial nominees below the Supreme Court level.
Senate Majority Leader Mitch McConnell (R-KY) appeared on the April 2 editions of NBC’s Meet the Press and Fox Broadcasting Co.’s Fox News Sunday and declared that President Donald Trump’s Supreme Court nominee, Judge Neil Gorsuch, will be confirmed to the court. The hosts questioned McConnell on whether he would invoke the nuclear option -- a rule change that would eliminate the use of the filibuster for Supreme Court nominees -- if the Democrats filibuster Gorsuch’s nomination. Additionally, the hosts pointed out McConnell’s opposition to the rule change in 2013, which he now appears poised to use on behalf of Gorsuch:
CHUCK TODD (HOST): Do you have the votes to change the rules among Republicans? Do you have all 52 Republicans ready to stand behind you, that if the Democrats filibuster Neil Gorsuch, you have the votes to change the rules?
TODD: You're somebody, though, that was very concerned when this rule was changed by Harry Reid for judges below Supreme Court. If you regret what Harry Reid did, why continue down this slippery slope?
CHRIS WALLACE (HOST): You say that he’ll be confirmed one way or the other, so does that mean if you can’t stop a filibuster that you will go to the nuclear option and change the Senate rules so that you can cut off debate with 51 votes and confirm him?
WALLACE: Back in 2013, the Democrats invoked the nuclear option to allow a simple majority, 51 votes, on confirmation of lower court judges. At that time, you said that was a big mistake.
Both Todd and Wallace failed to explain why Democrats changed the rule in 2013. As Senate Minority Leader Chuck Schumer explained later on Meet the Press, Senate Republicans “had been holding back on just about all of so many lower court judges, including the very important D.C. Circuit,” by refusing to allow votes on the nominees, so Democrats changed the rules to address the emergency and fill vacant seats. However, the Democrats left the filibuster intact for Supreme Court nominees.
Republicans’ refusal to hold a vote on Obama’s nominees was unprecedented. In 2013, political science professor, Dr. Sheldon Goldman, calculated the level of Republican obstruction of Obama’s circuit court nominees and declared it “the highest that’s ever been recorded,” adding, “it approached total obstruction or delay.”
Republicans continued their obstruction of Obama’s judicial nominees after they took control of the Senate following the 2014 elections. As Mother Jones reported in May 2016:
Since taking control of the Senate in early 2015, Republicans have confirmed only 17 federal judges, a historically low number. The Senate confirmed just 11 judges in 2015, the fewest since 1960. There have been only two appellate court judges approved since Republicans took control, with seven appeals court nominations left pending. If the Senate doesn't confirm any appellate judges this year, it will have confirmed the fewest since the 1897-98 session, when there were just 25 circuit court judges nationwide, compared with 179 now. "Historically, we're in nearly unprecedented ground here," says Kyle Barry, director of justice programs at the liberal Alliance for Justice. "What's happening with Judge Garland is really part and parcel with how the Senate has been treating judicial nominees generally. The pace has been so historically bad, we've been seeing what amounts to outright obstruction."
Senate Republicans obstructed until the very end of the Obama presidency. After the Mother Jones article was published, Republicans allowed the confirmation of only three district court judges. In total, the GOP Senate allowed just 20 confirmations -- two appellate judges and 18 district court judges -- during the 114th Congress. By comparison, during the 110th Congress -- the last session of Congress during the George W. Bush presidency -- a Democratic majority confirmed 68 nominations -- 10 appellate judges and 58 district court judges. And Republicans completely blocked Obama’s Supreme Court nominee, Judge Merrick Garland, from having any public hearings or votes for 293 days.
Todd and Wallace whitewashed history by not presenting the proper context for the debate over Gorsuch’s nomination and the possible implementation of the nuclear option.
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David Duke: “Another Great Win By Trump! Hillary Over The Next 8 Years Would Make The Supreme Court Indistinguishable From The Israeli Knesset!”
White nationalists heavily praised President Donald Trump’s nomination of Judge Neil Gorsuch to the Supreme Court, lauding the fact he is “old stock American,” "a white male," "WASPy," and not Jewish.
Newspaper editorial boards are sharply criticizing Sen. John McCain (R-AZ) for promising that he and his fellow Republican senators would block any and all nominees for the Supreme Court put forth by a President Hillary Clinton, noting that McCain’s promise upends the GOP’s stated reasons for refusing to even hold a vote on President Obama’s Supreme Court nominee, Merrick Garland.
The Supreme Court will be one of the topics discussed at the final presidential debate of this election, moderated by Fox News anchor Chris Wallace on October 19. Supreme Court reporters and legal experts have been explaining the significance of the court throughout the election season, because of the vacancy left by the death of Justice Antonin Scalia in February and the implications for the ideological direction of the court stemming from the election of a new president.
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Ed. Board: Senate Republicans Should “Put Politics Aside And Give Judge Garland A Hearing And A Vote”
The USA Today editorial board renewed its call for Senate Republicans to hold a hearing and a vote on Supreme Court nominee Merrick Garland, who has been awaiting confirmation hearings since March 16, pointing out that the GOP leadership’s reasoning for the blockade is “unprecedented" and “hypocritical,” and noting that “even prominent Republicans” are calling for action on the nomination.
On August 9 -- 146 days after Judge Garland was nominated to the Supreme Court in the face of a conservative media-driven smear campaign -- the USA Today editorial board once again called for Senate Republicans to do “the best thing for the court, the country and the Constitution,” and hold a hearing and a vote on Garland’s nomination. The board argued that the GOP is engaging in a “hypocritical posture” by denying a hearing before the presidential election while hinting at a potential change in course should Democratic nominee Hillary Clinton win the race in November.
USA Today’s latest editorial continues a months-long drumbeat of widespread support for a Senate vote on the Garland nomination -- including from other national and state editorial boards, from prominent legal experts across the ideological spectrum, and from voters. As USA Today noted, “the problem” is “not Garland,” as even well-known conservative legal minds “have said that the time to act was yesterday.”
From the August 9 editorial:
Congress failing to act isn't exactly breaking news. It's tied in knots on a range of issues, from the budget and trade to creating jobs and controlling guns. But flat-out ignoring a vacancy on the nation's highest court, which Senate Republicans have vowed to do while President Obama remains in office, is an abrogation of its constitutional duty.
So what's the problem? Not Garland. He has been lauded by every group that has reviewed his qualifications. Even prominent Republicans, such as former Supreme Court justice Sandra Day O'Connor and former U.S. attorney general Alberto Gonzales, have said that the time to act was yesterday.
Yet from day one, Senate Majority Leader Mitch McConnell made clear that Republicans simply could not let Obama replace Scalia. Despite GOP leaders' obvious unease with Donald Trump as their standard-bearer, they want to hand him the vacancy to fill.
Translation: The Scalia seat may await Trump, but not Hillary Clinton. If she wins — or even if it looks like she will — all bets are off, because Clinton could ditch Garland for someone far younger or further left, and the GOP gambit will have backfired.
That's a hypocritical posture for Republicans to take. Either this is Obama's seat to fill or it isn't. When the Senate returns in September, it should put politics aside and give Judge Garland a hearing and a vote. It's the best thing for the court, the country and the Constitution.
Numerous editorial boards slammed the Supreme Court’s “maddening” and “depressing” “nondecision” in United States v. Texas that upheld a federal court’s decision to block President Obama’s executive action on immigration that temporarily relieved millions of undocumented immigrants from deportation. The editorial boards blamed the impasse -- which “condemned” millions to “live in the shadows” -- on congressional Republicans’ obstruction of Obama’s nomination of Merrick Garland to the Supreme Court, as well as their failure to pass immigration reform.
The Washington Post’s editorial board criticized Senate Majority Leader Mitch McConnell’s (R-KY) “patently ridiculous” claim that Supreme Court nominee Merrick Garland is ideologically extreme.
Since Garland’s nomination in March, groups like the Judicial Crisis Network, the National Federation of Independent Business and the National Rifle Association have made numerous false and misleading claims about Garland’s record to portray him as ideologically extreme. In fact, conservatives have praised Garland for years and multiple prominent conservative lawyers have announced their support for Garland’s nomination.
In a June 5 editorial, the editorial board slammed McConnell’s “patently ridiculous” claim after he said on MSNBC’s Morning Joe that “from a conservative point of view, I don’t think you could have a worse nominee than Merrick Garland.” The board wrote that it is “absurd” to call Garland a “worst-case scenario for Republicans,” noting, “Fellow judges from across the ideological spectrum [have] effusively praise[d] Mr. Garland” and that Garland’s record as a judge has “been careful and evenhanded.” From the June 5 piece:
Senate Majority Leader Mitch McConnell (R-Ky.) continues to insist that the GOP blockade of Judge Merrick Garland, President Obama’s nominee to replace Scalia, is “about a principle, not a person.” The crucial principle that apparently justifies hobbling the Supreme Court is the newly invented notion that the president should be able to fill court vacancies during only three-quarters of his elected term.
Mr. McConnell’s discovery of this principle has been as obvious a case of situational ethics as has ever been seen in Washington. Indeed, from the beginning, it was clear Republicans had more than proper procedure on their minds. “The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country,” Mr. McConnell warned in March.
Now Mr. McConnell has gone a step further, making his opposition not simply cynical but patently ridiculous. In interviews last week, Mr. McConnell argued that Mr. Garland is ideologically extreme. “I don’t think you could have a worse — from a conservative point of view, I don’t think you could have a worse nominee than Merrick Garland,” he said on MSNBC’s “Morning Joe.” “I would say, he’s a well-qualified, very liberal judge,” he told NPR.
It is absurd to claim that Mr. Garland, a nominee about whom many liberal groups are not excited, a judge whom Sen. Orrin Hatch (R-Utah) once called a “consensus nominee,” is the worst-case scenario for Republicans. Fellow judges from across the ideological spectrum effusively praise Mr. Garland. His work on the country’s second-most prominent court, the U.S. Court of Appeals for the District of Columbia Circuit, has been careful and evenhanded. Mr. McConnell’s claims do not pass the laugh test — unless by “worst,” he means “most-qualified” and therefore most difficult plausibly to reject.
Mr. McConnell’s admission that Mr. Garland is “well-qualified” should end the discussion. The president gets to nominate; the Senate gets to object in extraordinary circumstances, but has an obligation to confirm if nominees are, as in this case, obviously qualified and within the mainstream of judicial thinking. No other arrangement can keep the system working. But the majority leader obviously has other considerations in mind.
Republicans’ stated plan to block any nomination to the Supreme Court by President Obama is “historically unprecedented,” according to an analysis of every Supreme Court nomination. The analysis notes that “the Senate has only refused to consider a President’s Supreme Court nominations in the highly unusual circumstance where the nominating President’s status as the most recently elected President has been in doubt.”
According to the analysis, authored by University of Illinois College of Law professors Robin Bradley Kar and Jason Mazzone, Senate Republicans’ “major departure from more than two centuries of historical tradition” poses the risk that “no future Supreme Court Justice will be appointable unless the President and the Senate are of the same political party.”
As the authors explained, circumstances similar to President Obama’s -- where an elected president is presented with a Supreme Court vacancy prior to the election of his successor -- have occurred 103 times in U.S. history. In each of those instances, the Senate voted to confirm a judge nominated by that president to fill the vacancy.
Kar and Mazzone warn that Republicans’ insistence on rejecting this longstanding historical precedent creates “historic, pragmatic, and constitutional risks” and urge that “Senate Republican leaders should reconsider their current plan” (internal citations removed, emphasis original):
In particular, history suggests that while there may be no general duty on the part of the Senate to provide advice and consent with respect to every nomination to a federal office that a President may make, the Supreme Court presents a special case. As we show, the Senate has only refused to consider a President’s Supreme Court nominations in the highly unusual circumstance where the nominating President’s status as the most recently elected President has been in doubt. Once this fact is recognized, it will become clear that the Republican plan is historically unprecedented and entails more extensive pragmatic and constitutional risks than have thus far been recognized. These risks may well outweigh the originally perceived benefits of the plan, even to Senate Republicans.
Part I therefore begins with a close look at the entire relevant history. By examining every Supreme Court appointment process in U.S. history, we uncover a principled but underappreciated distinction between cases where the Senate has provided advice and consent on particular Supreme Court nominees—by considering them (and either confirming, rejecting, or resisting them on the merits using a wide array of senatorial procedures)—and cases where the Senate has sought deliberately to transfer a sitting President’s complete Supreme Court appointment powers to a successor. We show that tactics of the latter kind have always been limited to the unusual circumstance where there were contemporaneous questions concerning the status of the nominating President as the most recently elected President. More specifically, all such cases involved a President who either (a) attained office by succession rather than election or (b) began the nomination process after the election of his successor. Neither circumstance applies to President Obama’s nomination of Judge Garland. Moreover, bracketing these highly unusual circumstances, we show that there have been 103 prior cases in which—as in the case of Obama’s nomination of Garland -- an elected President nominated someone to fill an actual Supreme Court vacancy and began the nomination process prior to the election of a successor. In all 103 cases, which go back all the way to the earliest days of the Republic, the sitting President was able to both nominate and appoint a replacement Justice -- by and with the advice and consent of the Senate, and regardless of the senatorial rules and procedures in place. Hence, in none of the 103 cases that most closely resemble the current controversy has a sitting President been unable to fill an existing Supreme Court vacancy with some nominee.
The historical rule that best accounts for the entire history of Supreme Court appointments is thus the following: Although the Senate has the constitutional power to provide advice and consent on particular Supreme Court nominees (and hence to reject or resist individual nominees on the merits), the Senate may only deliberately transfer one President’s Supreme Court appointment powers to an unknown successor -- as Senate Republicans are currently attempting to do with their plan -- if there are contemporaneous questions about the status of the nominating President as the most recently elected President. There are no such credible questions about President Obama’s status. Hence, while Senate Republicans have framed their opposition to the nomination of Judge Garland as hewing to historical practices, their plan in fact presents a major departure from more than two centuries of historical tradition.
The logical terminus of the current Republican plan may also be that no future Supreme Court Justice will be appointable unless the President and the Senate are of the same political party. Such a result can only lead to a more -- rather than less -- politicized appointment process and, ultimately, to a more politicized Court.
In order to avoid the historic, pragmatic, and constitutional risks we set forth, Senate Republican leaders should reconsider their current plan. They should not breach a tradition that goes back more than two centuries and began in the earliest days of the Republic. They should instead do what has always been done in similar circumstances. They should proceed to full Senate consideration of Judge Garland or any other nominee that President Obama puts forth in a timely manner.
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The New York Times editorial board slammed Senate Republicans’ ongoing obstruction of Merrick Garland’s nomination to the Supreme Court, explaining that the inability to resolve the Zubik v. Burwell case shows the harm in a court “without a full bench.”
On May 16, the Supreme Court handed down an unsigned per curiam opinion on the high-profile Zubik v. Burwell case, remanding the lawsuit back to a federal appeals court for further consideration of how religious accommodations are granted within the Affordable Care Act’s contraception mandate.
The New York Times editorial board pointed out that this type of opinion, which does not create Supreme Court precedent but instead allows for the potential to revisit similar cases in the future, illustrates the harm in Senate Republican’ ongoing obstruction of Merrick Garland’s confirmation to the Supreme Court. The Times’ editorial board lamented that opinions such as Zubik “leave millions of Americans waiting for justice or clarity as major legal questions are unresolved,” and concluded that “despite what Senate Republicans may say,” the Zubik punt showed that “the court cannot do its job without a full bench.”
From the May 16 editorial (emphasis added):
Every day that passes without a ninth justice undermines the Supreme Court’s ability to function, and leaves millions of Americans waiting for justice or clarity as major legal questions are unresolved.
On Monday, the eight-member court avoided issuing a ruling on one of this term’s biggest cases, Zubik v. Burwell, which challenges the Affordable Care Act’s requirement that employers’ health care plans cover the cost of birth control for their employees. In an unsigned opinion, the court sent the lawsuits back to the lower federal courts, with instructions to try to craft a compromise that would be acceptable to everyone.
This is the second time since Justice Antonin Scalia’s death in February that the court has failed to reach a decision in a high-profile case; in March, the court split 4 to 4 in a labor case involving the longstanding right of public-sector unions, which represent millions of American workers, to charge collective bargaining fees to nonmembers.
Unfortunately, the justices appear to be evenly split on this issue, as they may be on other significant cases pending before them.
The court’s job is not to propose complicated compromises for individual litigants; it is to provide the final word in interpreting the Constitution and the nation’s laws. Despite what Senate Republicans may say about the lack of harm in the delay in filling the vacancy, the court cannot do its job without a full bench.