Analysis Law and Policy

Republicans Continue to Play Games With Judicial Nominations

Jessica Mason Pieklo

Sri Srinivasan's judicial nomination to the D.C. Court of Appeals looks like it will move forward, but it's not clear if that nomination will be a win for progressives. Unfortunately, the process is so broken that there's no good way to tell.

Sri Srinivasan’s judicial nomination to the D.C. Court of Appeals looks like it will move forward, but it’s not clear if that nomination will be a win for progressives.

Srinivasan, currently the Principal Deputy Solicitor General, is on a long list of candidates waiting for confirmation to federal appellate courts who have been blocked by Republicans on specious grounds. Srinivasan is a native of India but was raised in Lawrence, Kansas, and attended Stanford University, where he earned his bachelor’s and law degrees, and an MBA. From law school, Srinivasan went on to clerk for conservative Judge J. Harvie Wilkinson III, then of the Fourth Circuit Court of Appeals, followed by former Supreme Court Justice Sandra Day O’Connor.

As an attorney, Srinivasan made a name for himself as a litigator, arguing 20 cases before the high court and serving under both President George W. Bush and President Obama. Conservative legal scholars, including Ted Olson and Ken Starr, have publicly supported the Srinivasan nomination, and by all reasonable standards the nomination should have sailed through the Senate Judiciary Committee.

But then again, so should have the Caitlin Halligan nomination. Halligan recently withdrew her nomination after the National Rifle Association and anti-choice groups pressured Republicans to break an agreement they made with Democrats to not block any judicial nominees in exchange for Senate Majority leader Harry Reid punting on filibuster reform earlier this year.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

All that history was palpable during Srinivasan’s confirmation hearing. Before Srinivasan even had a chance to address the committee, Republicans were already playing politics. Sen. Chuck Grassley (R-IA), the ranking Republican on the committee, used his opening statement to announce a bill that would reduce the number of judges on the D.C. Circuit from 11 to eight. Grassley announced he would file the legislation, which was co-sponsored by other Republicans on the judiciary committee, including senators Mike Lee (R-UT), Orrin Hatch (R-UT), Jeff Sessions (R-AL), Jeff Flake (R-AZ), and Ted Cruz (R-TX). As it stands, only seven of the 11 seats on the D.C. Circuit are filled; if Srinivasan’s nomination clears, he would be the eighth. So why would Republicans want to do that?

The answer was apparent as soon as Republicans started questioning Srinivasan. His hearing was as much about the Supreme Court as the D.C. Circuit Court of Appeals.

Grassley and Hatch grilled Srinivasan about the positions he took on behalf of the Obama administration in refusing to defend the Defense of Marriage Act and on Srinivasan’s role in the case Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. In that case, Srinivasan argued unsuccessfully that federal anti-discrimination laws should apply to religious organizations. The Supreme Court disagreed, and instead articulated a broad “ministerial exception” where First Amendment religious rights trump anti-discrimination laws, even in the employment context. Why are conservatives on the judiciary committee so interested in Hosanna-Tabor? With the sixty-or-so lawsuits challenging the birth control benefit on similar grounds, the senators’ line of questioning wasn’t so much about Srinivasan’s work as it was about launching a few test balloons on the scope of that exemption for the inevitable Supreme Court review of the birth control benefit.

Democrats on the committee had a few points to make as well. Sen. Charles Schumer (D-NY) asserted that conservative senators are using the D.C. Circuit as a way to gut legislation they don’t like (financial reform, for example) and enshrine legislation they do like. There are important legislative reforms working through Congress and the executive agencies—everything from gun reform to immigration to the final religious accommodation on the birth control benefit—and these are all issues on which the D.C. Circuit Court is expected to rule, at some point. This matters because conservatives have perfected the art of reverse-engineering their legal challenges. These questions were not simply a probe into Srinivasan’s background and experience, they were a highlight of the kinds of legal challenges the federal appellate courts will hear in the comings years, and conservatives wanted assurances they could count on Srinivasan.

And he appeared to give it to them. Judicial confirmation hearings often take on the foreign language of constitutional law-speak, a form of communicating in case-name shorthand that is designed to signal a candidate’s particular view. On this form of communicating, Srinivasan showed himself to be skilled and savvy. Srinivasan consistently referred to District of Colombia v. Heller and Crawford v. Marion County as decisions he’d follow and legal principles he found instructive. By all accounts, the conservatives on the committee ate it up.

Heller is the landmark case in which the Supreme Court struck the D.C. handgun band, holding that the Second Amendment protects an individual’s right to possess a firearm for traditionally lawful purposes, such as self-defense within the home. The decision tied the right to have a handgun to a natural right of self-defense embraced within the Second Amendment, and many legal experts, like dissenting Justice John Paul Stevens, see the case as an example of judicial over-reach—akin to the majority’s decision in Citizens Unitedin that it upended century-old precedent interpreting the Second Amendment without finding an individual right to own a weapon. As the dust has settled in the Heller decision it’s now become a dog-whistle to suggest sympathy, or at a minimum a lack of hostility, toward the idea of gun owner rights and it’s an important indicator as Congress moves forward on the issue of reasonable weapons regulation.

Srinivasan similarly invoked Crawford, a 2008 Supreme Court decision that upheld the constitutionality of Indiana’s photo ID requirement, finding it closely related to Indiana’s legitimate state interest in preventing voter fraud, modernizing elections, and safeguarding voter confidence. The case paved the way for future voting restrictions because the court bought entirely the straw man argument of “voter fraud” that Republicans still trot out to justify efforts to curtail democratic participation. These are more political arguments than legal arguments at this point, and the fact that Senate Republicans took Srinivasan’s pulse on them again shows this hearing wasn’t about Srinivasan on the D.C. Circuit so much as it was about Srinivasan on the Supreme Court.

By the end of the hearing, Srinivasan appeared to enjoy the support of several Republicans on the committee. Should this concern progressives? It’s hard to say. As Adam Sewer notes at Mother Jones, there’s plenty for both sides to chew on. In addition to arguing against the Indiana voter ID law and the expansion of the ministerial exemption under the First Amendment, Srinivasan also represented a Spanish-speaking child in Arizona in a case alleging the state had failed to provide enough English instruction to students learning English as a second language. Finally, Srinivasan was part of the legal team representing Al Gore in Bush v. Gore. But Srinivasan also argued the conviction for Enron scammer Jeffery Skilling should be thrown out and that American companies should not be held liable for human rights abuses abroad.

In that way, his nomination may more closely mirror the Elena Kagan nomination—an undoubtedly qualified candidate whose work history gives no clear indication of how he would rule in future cases. For Kagan, she has to date proven to be a reliably liberal voice on the bench and a formidable counter-point to Chief Justice John Roberts. Srinivasan may be a similar candidate, but unfortunately the process is so broken there’s no good way to tell.

Roundups Law and Policy

Gavel Drop: Republicans Can’t Help But Play Politics With the Judiciary

Jessica Mason Pieklo & Imani Gandy

Republicans have a good grip on the courts and are fighting hard to keep it that way.

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

Linda Greenhouse has another don’t-miss column in the New York Times on how the GOP outsourced the judicial nomination process to the National Rifle Association.

Meanwhile, Dahlia Lithwick has this smart piece on how we know the U.S. Supreme Court is the biggest election issue this year: The Republicans refuse to talk about it.

The American Academy of Pediatrics is urging doctors to fill in the blanks left by “abstinence-centric” sex education and talk to their young patients about issues including sexual consent and gender identity.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Good news from Alaska, where the state’s supreme court struck down its parental notification law.

Bad news from Virginia, though, where the supreme court struck down Democratic Gov. Terry McAuliffe’s executive order restoring voting rights to more than 200,000 felons.

Wisconsin Gov. Scott Walker (R) will leave behind one of the most politicized state supreme courts in modern history.

Turns out all those health gadgets and apps leave their users vulnerable to inadvertently disclosing private health data.

Julie Rovner breaks down the strategies anti-choice advocates are considering after their Supreme Court loss in Whole Woman’s Health v. Hellerstedt.   

Finally, Becca Andrews at Mother Jones writes that Texas intends to keep passing abortion restrictions based on junk science, despite its loss in Whole Woman’s Health.

Roundups Politics

Campaign Week in Review: Republican National Convention Edition

Ally Boguhn

The Trump family's RNC claims about crime and the presidential candidate's record on gender equality have kept fact-checkers busy.

Republicans came together in Cleveland this week to nominate Donald Trump at the Republican National Convention (RNC), generating days of cringe-inducing falsehoods and misleading statements on crime, the nominee’s positions on gender equality, and LGBTQ people.

Trump’s Acceptance Speech Blasted for Making False Claims on Crime

Trump accepted the Republican nomination in a Thursday night speech at the RNC that drew harsh criticism for many of its misleading and outright false talking points.

Numerous fact-checkers took Trump to task, calling out many of his claims for being “wrong,” and “inflated or misleading.”

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

 Among the most hotly contested of Trump’s claims was the assertion that crime has exploded across the country.

“Decades of progress made in bringing down crime are now being reversed by this administration’s rollback of criminal enforcement,” Trump claimed, according to his prepared remarks, which were leaked ahead of his address. “Homicides last year increased by 17 percent in America’s 50 largest cities. That’s the largest increase in 25 years. In our nation’s capital, killings have risen by 50 percent. They are up nearly 60 percent in nearby Baltimore.”

Crime rates overall have been steadily declining for years.

“In 2015, there was an uptick in homicides in 36 of the 50 largest cities compared to the previous years. The rate did, indeed, increase nearly 17 percent, and it was the worst annual change since 1990. The homicide rate was up 54.3 percent in Washington, and 58.5 percent in Baltimore,” explained Washington Post fact checkers Glenn Kessler and Michelle Ye Hee Lee. “But in the first months of 2016, homicide trends were about evenly split in the major cities. Out of 63 agencies reporting to the Major Cities Chiefs Association, 32 cities saw a decrease in homicides in first quarter 2016 and 31 saw an increase.”

Ames Grawert, a counsel in the Brennan Center’s Justice Program, said in a statement posted to the organization’s website that 2016 statistics aren’t sufficient in declaring crime rate trends. 

“Overall, crime rates remain at historic lows. Fear-inducing soundbites are counterproductive, and distract from nuanced, data-driven, and solution-oriented conversations on how to build a smarter criminal justice system in America,” Grawert said. “It’s true that some cities saw an increase in murder rates last year, and that can’t be ignored, but it’s too early to say if that’s part of a national trend.” 

When Paul Manafort, Trump’s campaign chairman, was confronted with the common Republican falsehoods on crime during a Thursday interview with CNN’s Jake Tapper, he claimed that the FBI’s statistics were not to be trusted given that the organization recently advised against charges in connection with Hillary Clinton’s use of a private email server during her tenure as secretary of state.

“According to FBI statistics, crime rates have been going down for decades,” Tapper told Manafort. “How can Republicans make the argument that it’s somehow more dangerous today when the facts don’t back that up?”

“People don’t feel safe in their neighborhoods,” said Manafort, going on to claim that “the FBI is certainly suspect these days after what they did with Hillary Clinton.”

There was at least one notable figure who wholeheartedly embraced Trump’s fearmongering: former KKK Grand Wizard David Duke. “Great Trump Speech,” tweeted Duke on Thursday evening. “Couldn’t have said it better!”

Ben Carson Claims Transgender People Are Proof of “How Absurd We Have Become”

Former Republican presidential candidate Ben Carson criticized the existence of transgender people while speaking at the Florida delegation breakfast on Tuesday in Cleveland.  

“You know, we look at this whole transgender thing, I’ve got to tell you: For thousands of years, mankind has known what a man is and what a woman is. And now, all of a sudden we don’t know anymore,” said Carson, a retired neurosurgeon. “Now, is that the height of absurdity? Because today you feel like a woman, even though everything about you genetically says that you’re a man or vice versa?”

“Wouldn’t that be the same as if you woke up tomorrow morning after seeing a movie about Afghanistan or reading some books and said, ‘You know what? I’m Afghanistan. Look, I know I don’t look that way. My ancestors came from Sweden, or something, I don’t know. But I really am. And if you say I’m not, you’re a racist,’” Carson said. “This is how absurd we have become.”

When confronted with his comments during an interview with Yahoo News’ Katie Couric, Carson doubled down on his claims.“There are biological markers that tell us whether we are a male or a female,” said Carson. “And just because you wake up one day and you say, ‘I think I’m the other one,’ that doesn’t change it. Just, a leopard can’t change its spots.”

“It’s not as if they woke up one day and decided, ‘I’m going to be a male or I’m going to be a female,’” Couric countered, pointing out that transgender people do not suddenly choose to change their gender identities on a whim.

Carson made several similar comments last year while on the campaign trail.

In December, Carson criticized the suggested that allowing transgender people into the military amounted to using the armed services “as a laboratory for social experimentation.”

Carson once suggested that allowing transgender people to use the restroom that aligned with their gender identity amounted to granting them “extra rights.”

Ivanka Trump Claims Her Father Supports Equal Pay, Access to Child Care

Ivanka Trump, the nominee’s daughter, made a pitch during her speech Thursday night at the RNC for why women voters should support her father.

“There have always been men of all background and ethnicities on my father’s job sites. And long before it was commonplace, you also saw women,” Ivanka Trump said. “At my father’s company, there are more female than male executives. Women are paid equally for the work that we do and when a woman becomes a mother, she is supported, not shut out.” 

“As president, my father will change the labor laws that were put into place at a time when women were not a significant portion of the workforce. And he will focus on making quality child care affordable and accessible for all,” she continued before pivoting to address the gender wage gap. 

“Policies that allow women with children to thrive should not be novelties; they should be the norm. Politicians talk about wage equality, but my father has made it a practice at his company throughout his entire career.”

However, Trump’s stated positions on the gender wage gap, pregnancy and mothers in the workplace, and child care don’t quite add up to the picture the Trumps tried to paint at the RNC.

In 2004, Trump called pregnancy an “inconvenience” for employers. When a lawyer asked for a break during a deposition in 2011 to pump breast milk, Trump reportedly called her “disgusting.”

According to a June analysis conducted by the Boston Globe, the Trump campaign found that men who worked on Trump’s campaign “made nearly $6,100, or about 35 percent more [than women during the April payroll]. The disparity is slightly greater than the gender pay gap nationally.”

A former organizer for Trump also filed a discrimination complaint in January, alleging that she was paid less than her male counterparts.

When Trump was questioned about equal pay during a campaign stop last October, he did not outline his support for policies to address the issue. Instead, Trump suggested that, “You’re gonna make the same if you do as good a job.” Though he had previously stated that men and women who do the same job should be paid the same during an August 2015 interview on MSNBC, he also cautioned that determining whether people were doing the same jobs was “tricky.”

Trump has been all but completely silent on child care so far on the campaign trail. In contrast, Clinton released an agenda in May to address the soaring costs of child care in the United States.

Ivanka’s claims were not the only attempt that night by Trump’s inner circle to explain why women voters should turn to the Republican ticket. During an interview with MSNBC’s Chris Matthews, Manafort said that women would vote for the Republican nominee because they “can’t afford their lives anymore.”

“Many women in this country feel they can’t afford their lives, their husbands can’t afford to be paying for the family bills,” claimed Manafort. “Hillary Clinton is guilty of being part of the establishment that created that problem. They’re going to hear the message. And as they hear the message, that’s how we are going to appeal to them.”

What Else We’re Reading

Vox’s Dara Lind explained how “Trump’s RNC speech turned his white supporters’ fear into a weapon.”

Now that Mike Pence is the Republican nominee for vice president, Indiana Republicans have faced “an intense, chaotic, awkward week of brazen lobbying at the breakfast buffet, in the hallways and on the elevators” at the convention as they grapple with who will run to replace the state’s governor, according to the New York Times.

“This is a party and a power structure that feels threatened with extinction, willing to do anything for survival,” wrote Rebecca Traister on Trump and the RNC for New York Magazine. “They may not love Trump, but he is leading them precisely because he embodies their grotesque dreams of the restoration of white, patriarchal power.”

Though Trump spent much of the primary season denouncing big money in politics, while at the RNC, he courted billionaires in hopes of having them donate to supporting super PACs.

Michael Kranish reported for the Washington Post that of the 2,472 delegates at the RNC, it is estimated that only 18 were Black.

Cosmopolitan highlighted nine of the most sexist things that could be found at the convention.

Rep. Steve King (R-IA) asked, “Where are these contributions that have been made” by people of color to civilization?