As Supreme Court Nomination Speculation Heats Up, Keeping Our Eyes on the Bigger Prize

Jill Filipovic

A truly progressive legal culture - lines of legal interpretation which affirm free speech, privacy, civil liberties and protections of minority groups and views - requires building from the ground up, not just from the Supreme Court on down.

Few things excite politics junkies quite as much as an
impending Supreme Court nomination – it’s the Kentucky derby for law
nerds, with media-makers and talking heads evaluating the experience,
legal pedigrees, and even health of the country’s most prominent
judges, academics and lawyers.  But this nomination process is looking
very different from those of the past, in no small part because most of
the favorites are female.

Most commentators are placing their bets on Sonia
Sotomayor, Diane Wood and Elena Kagan, with Jennifer Granholm, Deval
Patrick, Kathleen Sullivan, Cass Sunstein and Janet Napolitano also
thrown out as possibilities. The general consensus that Obama’s choice
is going to be a woman is not a bad gamble, since women make up more
than half of the American public, one-third of all lawyers and thirty
percent of lower federal court judges, but occupy only one seat on the
current Supreme Court.  Troublingly, though, there have been murmurings
that this will be Obama’s "woman nomination," and the "racial
nomination" will be next – as if women can’t be both women and of
color, and as if the nominees will be little more than tokens.

In fact, the woman of color who has come out as the
front-runner – Sonia Sotomayor – is a politically moderate,
highly-accomplished woman who grew up in a housing project in the South
Bronx and went on to study at Princeton and Yale Law.  She’s hardly a
left-wing dream – she’s a political centrist who was first nominated to
the bench by George H.W. Bush – but she’s nonetheless already being
branded "radical," "liberal" and "activist."  Those who aren’t busy
launching the usual right-wing hit-jobs on her are relying on gendered
and racialized stereotypes to diminish her appeal, even in
supposedly progressive publications.  Jeffrey Rosen at the New
Republic
, for example, relies on anonymous mutual acquaintances to
paint a picture of Sotomayor as both a lonely single woman who takes
her law clerks to see Harry Potter movies and a domineering
loud-mouthed brown woman who isn’t as smart as she thinks she is – even
though, as Matt Yglesias says, "You don’t see a lot of dumb kids
growing up in the South Bronx and winding up at Princeton."  Rosen
admits that he is unfamiliar with Sotomayor’s judicial record, and
doesn’t bother to cite any decisions to substantiate his second-hand
claims.  At least the right-wing memo that lays out the plan of attack
on Sotomayor, Kagan and Wood actually quotes them – although again
provides no evidence for the contentions that Sotomayor "does not
have a very good temperment" and is prone to "inappropriate outbursts."

Others have written extensively about the gender and
racial dynamics of the Sotomayor attacks, and the gendered attacks on
all the potential female nominees.  It’s becoming increasingly clear
that if Obama does nominate a woman, the critiques will follow
predictably sexist lines; if he nominates a person of color, the
criticisms will be full of thinly-veiled racism.

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What’s less clear is which nominee feminists and
progressive activists should throw their weight behind.  Sotomayor (2nd
Circuit Court of Appeals) and Wood (7th Circuit Court of Appeals) are
fairly moderate; Kathleen Sullivan, dean of Stanford Law School, and
Elena Kagan, former dean of Harvard Law School, recently confirmed as
Obama’s Solicitor-General, are progressive academics, but lacking in
judicial experience.  Supreme Court justices tend to move left through
their years on the bench, so a political moderate today doesn’t
necessarily mean a centrist in later years – Justice David Souter, a
reliable pro-choice vote on the court was, after all, a Bush nominee. 
Obama has said he will not require Supreme Court judges to pass a
political litmus test, but most of the nominees appear to support
progressive views on hot-button Constitutional issues, like abortion
rights.  Wood, for example, wrote the panel decision in National
Organization for Women v. Scheidler, holding that women’s rights
organizations could use anti-racketeering laws to seek injunctive
relief against violence from anti-abortion protestors – a position that
the Supreme Court reversed.  And Sotomayor penned a very controversial
decision about the New Haven fire department’s decision to not take a
written exam into account when deciding who to promote, because the
exam had racially disparate results; white firefighters accused the
department of reverse discrimination.  Sotomayor wrote the panel opinion in that case, ruling, against the plaintiffs, that the fire
department could legally not take the exam scores into account and
simply not promote anyone.  The Supreme Court has since decided to
review the case.

Decades of right-wing
judicial appointments (with eight years of very moderate Clinton
appointments in the middle) have stacked the federal bench to lean
heavily right.  Bright and highly capable lawyers have been passed over
for judicial appointments in favor of political conservatives.  That’s
why most of the "liberal" suggestions for the Supreme Court are
actually political centrists, and the most left-leaning among them are
in academia or politics – there just aren’t all that many progressive
judges to choose from. 

That is the point we should be taking away from
this: The Supreme Court is only one piece of the puzzle, and while it’s
important for all the obvious reasons, the justices on that bench never
hear the vast majority of cases brought in the United States.  The
lower courts are the ones doing the bulk of legal interpretation, and
setting the legal standards on most issues.  The lower courts are also
places where legal talent is fostered and developed, in both the
judge’s own career and in the work of her clerks and the attorneys who
appear before her.  The U.S. Courts of Appeals in particular are
often the final decision-makers on crucial questions of law; well over
half of the sitting judges on those courts were appointed by
Republicans.

Of course, a Republican appointment does not necessarily
equal a conservative jurist, and there are many wonderful sitting
judges appointed by Republican presidents.  Obama also has no
obligation to choose a sitting judge for the vacant Supreme Court seat
in the first place; academics and politicians have been put on the
Court before, and many of today’s finest progressive legal minds are
professors, scholars and deans.  It may behoove him to look outside the
court house for the next Supreme Court justice. 

But it would behoove all of us for the federal courts to
be more diverse when it comes to ideology, race and gender, and to
cultivate legal talent at all levels.  Mine That Bird won the Derby
this year in a major upset in just over two minutes; the process of
picking and confirming a new Supreme Court justice will all be over in
a few months.  But the work of nurturing and advancing the most
talented competitors is an ongoing commitment.

The battles over critical Constitutional issues –
reproductive choice, civil rights, freedoms of speech and expression,
the rights of criminal defendants – are played out in court houses
around the country, and only a very few make it all the way up to our
highest judicial body.  While the fanfare surrounding Supreme Court
nominations is a necessity and the importance of that Court should not
be downplayed, progressives should take care to give equal – though
perhaps stealthier – attention to all the people Obama puts on the
federal bench.  A truly progressive legal culture – lines of legal
interpretation which affirm free speech, privacy, civil liberties and
protections of minority groups and views – requires building from the
ground up, not just from the Supreme Court on down.  Liberal lawyers,
legal scholars and organizations have done their part to protect the
civil liberties, individual freedoms and general equality that our
Constitution guarantees.  The courts – and especially the courts of
appeals – are necessary to make sure that those values are not chipped
away.

Despite conservative hand-wringing about "activist
judges," we haven’t seen all that many liberal judicial nominations in
the past thirty years; we probably won’t get a very liberal Supreme
Court nominee this time around, either.  But from the look of the
shortlist, we will undoubtedly be getting someone intelligent and
highly competent.  And once SCOTUS fever wears off, we can get down to
the process of balancing out the federal bench – so there will be plenty
of seasoned, highly-qualified jurists in the running for Supreme Court
seats to come.

Commentary Law and Policy

Republicans Make History in Obstructing Merrick Garland for Supreme Court

Jessica Mason Pieklo

Merrick Garland is now officially the longest Supreme Court nominee to go without confirmation hearings or a vote in U.S. history.

Merrick Garland, President Obama’s selection to replace Justice Antonin Scalia, now has the dubious distinction of being the longest U.S. Supreme Court nominee ever to go without a vote to confirm or reject his appointment, thanks to Senate Republicans’ refusal to do their jobs.

I can’t say it any differently. This has been an utter, total failure by grown men, and a few women, in the Senate to do the kind of thing they’re supposed to in exchange for getting paid by the rest of us. And after nearly a decade of unprecedented—and I mean unprecedentedobstruction of President Obama’s judicial nominees writ large, there’s no flowery language that can capture how our federal courts’ slow burn on the the Republicans’ watch has now caught full fire with the fight over Garland’s nomination.

Instead what we have are dry, hard facts. A century ago, Justice Louis Brandeis was forced to wait 125 days before his confirmation to become the first Jewish justice on the Court. Justice Scalia died on February 13 of this year. President Obama nominated Garland on March 16. Wednesday marked 126 days of zero Senate action on that nomination.

And since Congress is now on recess, that won’t be changing anytime soon.

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It’s not just that the Senate hasn’t held a vote. They have held no hearings. Several senators have refused to meet with Garland. They have taken. No. Action. Not a bit. And here’s the kicker: None of us should be surprised.

President Obama had no sooner walked off the Rose Garden lawn after announcing Garland’s nomination in March than Senate Republicans announced their plan to sit on it until after the presidential election. Eight months away. In November.

Senate Republicans’ objection isn’t to Garland himself. He’s a moderate who has generally received bipartisan praise and support throughout his career and should, on any other day, sail through the confirmation process. As compared with both of President Obama’s other appointments, Justices Sonia Sotomayor and Elena Kagan, Garland is practically a gift to Senate Republicans in all his moderate-aging-white-guy-ness. I mean, who would have thought that of all the nominees Republicans were going to double-down their obstruction efforts on, it would be Justice Dad?

Instead, their objection is to the fact that the democratic process should guarantee they lose control of the Supreme Court. Unless, of course, they can stop that process.

Conservatives have spent decades investing in the federal courts as a partisan tool. They did so by building an infrastructure of sympathetic conservative federal judges through appointments when in executive power, and by blocking liberal attempts to do the same when in the political minority. It’s an investment that has largely paid off. Federal circuit appeals courts like the Fifth, Sixth, Eighth, and Tenth issue reliably conservative opinions regularly, thanks to aggressive appointments by conservatives during the Reagan and Bush years.

Meanwhile, thanks to conservative obstruction under Democratic administrations—most egregiously under President Obama—71 district court seats currently sit vacant. Twenty-four of those seats are in jurisdictions considered by the courts themselves to be judicial emergencies: places where the caseload is so great or the seat has remained vacant for so long the court is at risk of no longer functioning.

It’s easy to see why conservatives would want to keep their grip on the federal judiciary given the kinds of issues before it: These are the courts that hear immigration and detention cases, challenges to abortion restrictions, employment discrimination cases, as well as challenges to voting rights restrictions. Just to name a few. But as long as there are no judges, the people being directly affected are left in limbo as their cases drag on and on and on.

Our federal courts of appeals are no better. Nine federal appellate seats sit vacant, five in jurisdictions deemed judicial emergencies.

These vacancies have nominees. Senate Republicans just refuse to confirm them.

And no, the other side doesn’t do this. Federal judgeships have always been political. But never have the Democrats used the judiciary as a blatantly partisan extension of their elected members.

The refusal to vote on Garland’s nomination is the most visible example of the conservatives’ drive to maintain control over the federal courts, but it’s hardly their most blatant display of sheer partisanship. I’m guessing that is yet to come when, should they lose the presidential election, Senate Republicans face the choice of quickly confirming Garland or continuing their stand-off indefinitely. And given what we’ve seen of the election cycle so far, do we really think Senate Republicans are going to suddenly grow up and do their jobs? I hate to say it, folks, but Merrick Garland isn’t getting confirmed anytime soon.

Roundups Law and Policy

Gavel Drop: Ruth Bader Ginsburg Hints at More Supreme Court Retirements

Imani Gandy & Jessica Mason Pieklo

In a recent interview, Supreme Court Justice Ruth Bader Ginsburg dishes on the last Supreme Court term and hints the next president may have more than one justice to appoint.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts.

Ruth Bader Ginsburg suggests the next president is going to have a couple of U.S. Supreme Court nominations to make, which means the Court could be effectively up for grabs depending on this election’s outcome.

This summer, the Supreme Court ordered the Obama administration and religiously affiliated nonprofits who object to providing contraception to try and find some kind of compromise. While they hammer one out, a University of Notre Dame student has asked a federal appeals court to let her join in the litigation, to fight the university’s stance of trying to deny access to contraception coverage.

Anti-choice protesters will be descending on Wichita, Kansas, this week to commemorate the 25th anniversary of the Summer of Mercy clinic sieges.

A state judge dismissed a lawsuit filed by Kentucky Gov. Matt Bevin (R) against Planned Parenthood of Indiana and Kentucky for purportedly performing abortions without license.

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Florida officials have not yet appealed a federal district court ruling blocking a law that would have prevented Medicaid funds from going to Planned Parenthood reproductive health care centers. The law would also mandate a state regulator review of patient records from half of the approximately 70,000 abortions in the state each year.

An Ohio appeals court ruled a Cleveland abortion clinic can move forward with its lawsuit challenging requirements that prohibit public hospitals from entering into transfer agreements with clinics, along with another requirement that mandates providers to check for a fetal heartbeat before performing an abortion.

Attorneys from the American Civil Liberties Union (ACLU) sued to block an Indiana law requiring that a patient getting an abortion must have an ultrasound 18 hours before the procedure.

Meanwhile, abortion rights supporters in Wisconsin are urging lawmakers to repeal the state’s admitting privileges requirement.

Anti-choice lawmakers in Texas plan to try to require aborted fetuses to be buried or cremated in an attempt to add additional emotional burden and administrative expense to the procedure.

Free speech for whom, exactly? The man who posted the video of the police killing of Alton Sterling has been reportedly arrested on charges of assault and battery.