WASHINGTON–In the continuing controversy surrounding the president’s U.S. citizenship, a new fringe group informally known as “Afterbirthers” demanded Monday the authentication of Barack Obama’s placenta from his time inside his mother’s womb. “All we are asking is that the president produce a sample of his fetal membranes and vessels—preferably along with a photo of the crowning and delivery—and this will all be over,” said former presidential candidate and Afterbirthers spokesman Alan Keyes, later adding that his organization would be willing to settle for a half-liter of maternal cord plasma. “To this day, the American people have not seen a cervical mucus plug, let alone one that has been signed and notarized by a state-certified Hawaiian health official. If the president was indeed born in the manner in which he claims, then where is his gestation sac?” Keyes said that if Obama did not soon produce at least a bloody bedsheet from his conception, Afterbirthers would push forward with efforts to exhume the president’s deceased mother and inspect the corpse’s pelvic bone and birth canal.
Read more of our articles on Justice Antonin Scalia’s potential successor here.
In the days following Supreme Court Justice Antonin Scalia’s death, congressional Republicans’ promise to not even consider a replacement nominee until after the 2016 presidential election has highlighted a disturbing trend in American politics. Although Republicans have blocked President Obama’s political agenda since the moment he took the oath of office, nowhere has this obstruction been more egregious than the federal judiciary.
While the chest-thumping from Republicans over a replacement for Justice Scalia has gathered the most press attention, the reality is our entire federal judiciary is in crisis thanks to Republican obstructionist tactics. Since President Obama took office, Republicans on the judiciary committee have consistently dragged out the confirmation process for or rejected outright his nominations.
The immediate result has been to slow down the federal courts to the point of crisis.
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There are currently 75 vacancies on the lower courts. Thirty-one of those vacancies are considered to be “judicial emergencies,” which means there are not simply enough judges on those courts to hear the number of cases being filed.
The number of judicial emergencies, for that matter, has increased by 158 percent since January 2015. There are also seven known future vacancies where judges have given their notice they will step down. Not surprisingly, most of these vacancies are clustered in conservative judicial districts, where an Obama appointment could potentially moderate the bench.
“In a number of situations we have very qualified nominees for circuit court judgeships, many are historic nominees,” explained Marge Baker, executive vice president of the progressive advocacy organization People for the American Way, in an interview with Rewire. “In Alabama we have what would be the first African American from Alabama to sit on the Eleventh Circuit. That would be huge. In Indiana it would be the first African-American woman from Indiana to sit on the Seventh Circuit. These are historic nominations of eminently qualified people and there’s absolutely no reason why they shouldn’t be filled.”
Compare this situation with that of the final two years of George W. Bush’s presidency, when Democrats took over the Senate after the 2006 midterm elections. In 2007, the Democratic Senate confirmed 40 of President Bush’s circuit and district court nominees. That was just in the Democrats’ first year as the majority. By the end of 2008, the Democratic-controlled Senate had confirmed a total of 68 judicial nominees.
By contrast, the newly Republican-controlled Senate confirmed 11 judges in 2015.
“This is Republican senators in this country saying they are not going to do their job, and it’s a job the Constitution requires them to do,” Baker said. “It’s an explosion of obstruction that we are seeing.”
And it’s an explosion of obstruction that is only getting amplified by the electoral cycle. In January 2016, the conservative pressure group Heritage Action threatened legislators with bad legislative scorecards, should they vote to confirm any more of the president’s judicial nominees.
For those nominees that do eventually get a vote, the confirmation process has been inexplicably delayed, with many nominees waiting more than 100 days for a confirmation vote. In almost every case, the nominee had strong bipartisan support and no opposition. Republicans just refused to act.
If the effect of Republican obstruction has been to bring the lower courts to a near standstill, their current strategy of blocking any Supreme Court nominee until after the election could bring the country’s highest court to a full stop. Consider it another form of government shutdown by the GOP.
“If the Republicans succeed in what they want to do, they are going to be leaving the Court without a ninth justice for at least a year and a half, or close to two terms of its work,” Baker said.
“It leaves you speechless, in terms of how do you deal with this level of disregard for the constitutional duty these senators were elected to perform?” she asked.
“On the one hand, this is part and parcel of the general obstruction the president has hit since the moment he took office,” Baker said. “What’s different and even more extreme [with the Supreme Court nomination] is there is no precedent for the party in the majority saying that they will not consider any nominee for the Supreme Court because it is the last year of the president’s term.”
“It is beyond the same-old thing. It is a crisis of constitutional proportions,” Baker continued.
So far, President Obama has shown little signs he’s going to play along with Republicans and hold a nomination back. And recent polling suggests the American public is also growing tired of the political posturing by conservatives around a replacement for Justice Scalia. The question for congressional Republicans, though, is do they care?
“There isn’t anything more sacred than what the Senate needs to do with regard to judicial nominations,” said Baker.
“This is obstruction on steroids.”
Few personalities loomed as large over U.S. law and politics as Supreme Court Justice Antonin Scalia, the conservative justice who died Saturday at age 79. In addition to making the 2016 presidential race even more interesting, his sudden death complicates a Court term already packed with marquee culture war topics such as abortion, affirmative action, and union rights. So what happens to those cases now that the Court is down a justice, and what does Scalia’s death mean for progressives? A helluva lot.
First, the nitty-gritty details. Yes, the Court can and will still function with only eight justices. The Court needs a quorum of six to hear cases, so even with possible recusals—themselves not that common—the Court’s business should continue. The Court’s term runs until the end of June, and there is plenty of time left in President Obama’s term to have a replacement confirmed. However, given the level of games-playing demonstrated by senators on the Judiciary Committee since the last Supreme Court nomination fight, I wouldn’t be surprised if the Republicans try to run out the clock on a third Obama Court appointment. But let’s not think about that right now.
In terms of the cases the Court has already heard, Justice Scalia’s votes count only in cases that have already been decided, with an opinion released. For cases where the Court has not yet released an opinion, his votes—to the extent they have happened already after written briefings and oral arguments—are void. That’s a big deal for those cases in which Scalia was part of a 5-4 conservative majority. Those include Friedrichs v. California Teachers Association, where the Court was expected to strike yet another blow to organized labor by limiting fair-share fees, which help fund the organizing efforts that benefit all employees, union members or not.
Assuming, as most legal observers have, that the vote in Friedrichs to strike fair-share fees was 5 to 4, Scalia’s death means the Court is now split evenly. In cases when there is no majority for a decision, the lower court decision is affirmed. In Friedrichs, that would mean a win for organized labor and a loss for the Koch brothers, who helped incubate the union challenge. Like I said, it’s a big deal.
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This brings me to one of the Court’s most closely watched cases this term, Whole Woman’s Health v. Hellerstedt, formerly Whole Woman’s Health v. Cole, which the Court will hear in March. As Drexel University School of Law professor David Cohen wrote in this must-read piece on the immediate implications of Scalia’s death on the case, Roe v. Wade is safe, for now. That’s because Scalia’s death makes it impossible for the remaining conservative justices to issue a sweeping opinion, applicable nationwide, that would effectively gut Roe by upholding Texas’ abortion restrictions, which have nearly regulated abortion out of existence in the state.
Should Justice Anthony Kennedy vote with the remaining conservatives and affirm the Fifth Circuit’s decision, the impact would be devastating for Texans as well as those who live in Louisiana and Mississippi, the other states covered by the Fifth Circuit, but that’s as far as the decision could reach. I still think Justice Kennedy is going to vote to strike the restrictions, which means reproductive rights advocates would win 5 to 3; the Texas restrictions and their copycats in Louisiana and Mississippi will likely go down; and those appellate court decisions blocking similar laws in places like Wisconsin and Alabama will stand. Another really big deal.
There is precedent for the Court to order cases affected by Scalia’s absence that end in a tie for rehearing once Scalia’s replacement is confirmed. But it is not entirely clear if that would apply in this instance, in part because nobody knows how long it will take to get a new justice confirmed, and how many tie votes we will get before then.
In other words, it is possible for the stakes to get even higher about Justice Scalia’s replacement, and rehearing legal challenges to union fees and the contraception benefit, for example, would do just that.
Beyond the impact on the Court’s upcoming business, there is Scalia’s legacy to wrestle with. Already, the tributes are coming in, as is appropriate for a person who served decades in the public sector. But here is where I must part ways with many of my colleagues offering their praises for Scalia.
I am not comfortable honoring a justice who consistently used his power and privilege as a cudgel against the disadvantaged. His dissents, no matter how masterfully written, didn’t strike me as something to celebrate, even ironically, because they became rallying cries for some of the most radical elements of the conservative movement.
Take, for instance, his dissent in Stenberg v. Carhart, the 2000 decision that struck Nebraska’s so-called partial-birth abortion ban.
“I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott,” wrote Scalia, referring to previous Supreme Court opinions justifying Japanese internment during World War II and saying that Black individuals, whether free or enslaved, were not “people” who could bring claims in federal court. “The method of killing a human child—one cannot even accurately say an entirely unborn human child—proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion.”
“The notion that the Constitution of the United States, designed, among other things, ‘to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity,’ prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd,” he wrote.
It really should come as no surprise that the justice who in his dissent in Planned Parenthood v. Casey flat-out declared reproductive privacy nonexistent and wrote that he was “sure” abortion is not a “liberty protected by the United States,” would invoke racial internment and slavery, and employ terms such as “half-born,” to argue against the fundamental human rights of women. And it should also come as no surprise that more than 20 years after Casey, Scalia’s rhetoric around abortion and slavery finds itself regurgitated by the likes of radical anti-choice operative Troy Newman.
Justice Scalia’s dissents were easy for progressives to write off as the argle-bargle ravings of an angry white man, because they were. It was kind of funny when Scalia snarked about government broccoli during the first challenge to the Affordable Care Act. But for every applesauce quip, there was an example of a sitting Supreme Court justice providing cover and legitimacy to some of the ugliest aspects of the conservative movement.
“There are those who contend that it does not benefit African Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well,” Scalia said earlier this term, during oral arguments in Fisher v. University of Texas, a case looking to eradicate affirmative action programs in public universities. The Court has not yet released its opinion in Fisher. “One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.”
That quote is not Scalia being provocative. It is Scalia promoting discredited social science to support his own personal opinion that affirmative action policies are themselves racially discriminatory.
Almost immediately after news of Justice Scalia’s death broke, Republicans in Congress promised to block any nominee to replace him. President Obama responded by offering his condolences to Justice Scalia’s family for his passing, before promising to fulfill his constitutional duty to quickly name a replacement. Scalia’s death, like much of his life, was instantly, bitterly partisan. In some ways, that’s a feature of our broken federal judiciary system, where appointments are routinely used as political leverage and capital. But in others, it’s a reflection of the kind of jurist Scalia was and why a critical look at his legacy is imperative. Scalia stoked partisanship in his opinions and public appearances, and not simply in the healthy-exercise-of-differences represented by the friendship between him and Justice Ruth Bader Ginsburg. He was the consummate activist judge, and no amount of flowery prose or biting dissents can undo that devastating aspect of his legacy.