Commentary Law and Policy

Florida Supreme Court Battle Could Set Dangerous Political Precedent

Jessica Mason Pieklo

Increasingly conservatives are targeting state court elections as a way to advance their anti-equality agenda.

When it works, our judiciary system is the final gatekeeper between citizens and state power run amok. And while the judicial branch has had its own history of scandal and political patronage, its largely stayed out of partisan electoral politics. But now that’s all changing.

The latest evidence of the blurring line between partisan electoral politics and our courts comes courtesy of Florida where conservatives in the state are making a play for the state’s high court.

As the Orlando Sentinel first reported, the state Republican party voted to oppose the retention of Supreme Court Justices Fred Lewis, Barbara Pariente and Peggy Quince. All three were appointed by Democratic former Governor Lawton Chiles and all three ruled in 2010 to remove from Florida’s ballot a non-binding amendment that would have allowed Floridians to refuse to buy mandatory health insurance in opposition to Obamacare.

In Florida, judges are appointed by the governor then face a “merit retention” vote every six years. Florida hasn’t removed a justice from the court in 40 years since adopting this system of judicial appointment. The decision to remove a sitting justice is normally based on misconduct or incompetence. But here it’s being driven on partisan disagreement.

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Normally judicial elections are low-campaigning, low-money affairs, but not any more.  A conservative group founded by the Koch brothers is the funding the Florida campaign against the justices, just like they did in Iowa during the 2010 election. There, conservatives backed by the Koch brothers launched a campaign against three justices who ruled in favor of same sex marriage in the state. A fourth Iowa justice who also ruled in favor of same sex marriage is being targeted this election.

Should conservatives succeed in ousting these judges in Florida the results would be significant and long-lasting. Most immediately, Gov. Rick Scott would have the opportunity to appoint three justices to the seven justice bench and with it drive the court even harder to the right. Long-term the success of these kinds of campaigns present serious problems for our judiciary. In Iowa outside groups like those funded by the Koch brothers spent almost $700,000 to unseat those three justices. In 2010 a little more than $12 million was spent nationally on TV ad time in state supreme court elections. That means that judges now have to raise funds, an activity that can call into question impartiality, a key component of judicial ethics.

The more our judicial candidates are forced to campaign, the more beholden they will be to their political donors, or at least that will be the unavoidable conclusion many in the public will draw. And when the public loses faith in the impartiality of the judiciary then the system of checks and balances really does crumble away.

Judicial appointments have always existed in tension with partisan politics; the judicial branch is supposed to be non-partisan but it is unavoidable that governors and presidents appoint justices in line with their political beliefs in addition to the particular skill and experience of the candidate. But there’s a difference between our judges existing as creatures of politics versus partisan candidates, and the campaigns in Iowa and Florida are threatening that distinction in very real and very dangerous ways.

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.