Analysis Law and Policy

Pressure Mounts for Judiciary Committee Chair to Oppose Michael Boggs Judicial Nomination

Jessica Mason Pieklo

Senate Republicans successfully blocked a host of President Obama's judicial nominees. Now Senate Democrats are helping advance a judge hand-picked by Republicans. Why?

In late November of 2013, Senate Democrats invoked the so-called nuclear option in an attempt to finally break the stranglehold Republicans had on advancing President Obama’s judicial nominees and other high-level appointments. The idea was that by requiring most judicial nominees to advance with a simple majority vote, the years of Republican obstruction of the federal courts would start to ease.

Although Republicans were to blame for blocking a historic number of federal judicial nominees, Democrats may be to blame for advancing some of the most questionable ones thanks to their insistence on abiding by the “blue slip rule.” The blue slip rule is a tradition whereby judicial nominees require approval from their home state senators before their nomination can advance. The way that approval is expressed is in the form of a blue slip, which the senator returns to the chairman of the judiciary committee, in this case Sen. Patrick Leahy (D-VT). Effectively, that means a senator can block a judicial nomination from their home state, like Republican Sen. Marco Rubio (FL) did with Judge William Thomas, an openly gay Black judge from Miami who was nominated for the Florida district court bench and whom Rubio had earlier supported. Or, as is the case with the nomination of Judge Michael Boggs, the blue slip requirement can effectively force the nomination of an ideologue.

Judge Boggs, who currently sits on the Georgia Court of Appeals, is a former state lawmaker in Georgia with a history of advancing regressive anti-choice and anti-civil rights legislation. Pro-choice and civil rights groups strongly oppose Boggs’ nomination, and the only reason he appears headed for the federal bench is because of the blue slip tradition and Republicans’ willingness to play games with judicial nominations. The Georgia federal courts, generally, and the 11th Circuit Court of Appeals in which Georgia sits, specifically, are among those listed as judicial emergencies, due in large part to a failure by Republicans to confirm judicial nominees like Jill Pryor to the 11th Circuit. In exchange for an end to the filibuster of the Pryor nomination, Republicans demanded a deal on President Obama’s other nominees to the federal bench in Georgia and put forward Boggs as one of their preferred choices.

Like the filibuster, the blue slip rule is not a constitutional requirement; it can be changed by the Senate and has been in the past. In 2003, when Republicans controlled the Senate Judiciary Committee, then-committee chair Orrin Hatch (R-UT) abandoned the blue slip rule and instead required the administration to engage in a pre-nomination consultation with both home state senators.

Appreciate our work?

Vote now! And help Rewire earn a bigger grant from CREDO:

VOTE NOW

All that means is that Democrats in the Senate, and Sen. Leahy specifically, could prevent Republicans from filling this federal judicial vacancy in Georgia with a blatantly anti-choice, anti-civil rights candidate with a simple rule change. Advocacy organizations have increased pressure on the Obama administration to withdraw the Boggs nominee and are also urging Sen. Leahy to abandon the blue slip tradition. So far, Leahy has reportedly refused to consider getting rid of blue slips, despite his otherwise strong record on civil rights and matters of reproductive choice. And given the demographic shifts afoot in Georgia and the fact that in the coming years the federal courts there will hear cases on state-level abortion restrictions, immigration reforms, voting rights, and a host of other issues important to the jurisdiction, the idea that Democrats are willing to advance Boggs’ nomination undercuts both the gains from filibuster reform and their own political agenda.

The progressive site CREDO Action has a petition up asking Leahy to end blue slips and “[s]top allowing Republican senators to blackball pro-choice judges.”

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.

Appreciate our work?

Vote now! And help Rewire earn a bigger grant from CREDO:

VOTE NOW

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 Politics

Campaign Week in Review: Cruz Likens His Supreme Court Pick to ‘Lord of the Rings’ Character

Ally Boguhn

This week on the campaign trail, Donald Trump and Ted Cruz spoke about whom they would nominate for the vacant Supreme Court seat, and Trump saw his favorability plummet among women.

This week on the campaign trail, Donald Trump and Ted Cruz spoke about whom they would nominate for the vacant Supreme Court seat, and Trump saw his favorability plummet among women.

Cruz, Trump Discuss Their Supreme Court Nominations

Republican presidential candidates Sen. Ted Cruz (R-TX) and Donald Trump were hard at work dreaming up possibilities for a Supreme Court nominee should the Senate obstruct Obama’s pick for the vacancy.

Appearing at a rally over the weekend for Sen. Mike Lee’s (R-UT) bid for re-election, Cruz commented that Lee “would look good” on the Supreme Court. Cruz compared Lee to Gollum, a character from Lord of the Rings, claiming that “For Mike, the Constitution is ‘my precious,'” according to the Salt Lake Tribune. 

Appreciate our work?

Vote now! And help Rewire earn a bigger grant from CREDO:

VOTE NOW

Lee’s work opposing abortion during his time in Congress earned him a 100 percent rating from the anti-choice National Right to Life Committee. The Republican senator has supported several measures attempting to limit access to or outright ban abortion, including a 2013 bill to investigate all abortion clinics and extend “personhood” rights beginning at the moment of fertilization, which could outlaw many forms of birth control in addition to abortion.

Lee’s 2010 campaign website included a section noting his opposition to legal abortion and Roe v. Wade:

The Constitution says nothing that can plausibly be read to suggest—as the Supreme Court concluded in Roe v. Wade—that States are essentially powerless to protect unborn human life. This power to protect the most vulnerable members of society needs to be returned to the States.

Donald Trump also signaled he was mulling over potential picks for the Court’s vacancy, promising during a Monday press conference in Washington, D.C., to release a list of seven to ten potential picks. If elected, Trump vowed to choose nominees exclusively from the list, which he said will be created by the “Heritage Foundation and others.”

But as ThinkProgress reported, the Heritage Foundation “is an odd place for a presidential candidate to seek advice on any topic” given its history of discriminatory politics:

Heritage is a think tank known for its stridently conservative views and its unorthodox approach to mathematics. They oppose marriage equality, defend discrimination against LGBT Americans, and they have a surprisingly long history of reversing their own stances on health policy when doing so is useful to opponents of Obamacare. Their former chief “economist” is an ex-newspaper columnist and anti-tax activist with no doctorate in economics.

In 2013, Heritage released a widely criticized report claiming that immigration reform would cost an eye-popping $6.3 trillion. One of the co-authors of that report resigned four days later after news broke that “his graduate dissertation on immigration was premised on the idea that Latinos were less intelligent than whites.”

The Heritage Foundation is vehemently anti-choice, a position that could inform its picks for the Court. The organization’s “Solutions 2016” policy recommendations include calls to expand bans on using federal funding for abortion, redirect funding for reproductive health away from Planned Parenthood to community health centers, and codify protections for “medical personnel who decline to provide, pay for, provide coverage of, or refer for abortions.” Its website also details the organization’s opposition to Roe v. Wade, dismissing the decision as “judicial activism.”

Poll: 74 Percent of Women Registered to Vote Hold Unfavorable Views of Trump

A CNN/ORC International poll released Thursday found that Donald Trump is viewed unfavorably by 74 percent of registered women voters and 81 percent of people of color.

The poll, which asked registered voters whether they “have a favorable or unfavorable opinion” of presidential candidates, shows potentially major hurdles for the Republican front-runner moving into the general election. Comparably, 50 percent of women and 36 percent of “non-white” people polled said they had an “unfavorable” view of Hillary Clinton.

Polling from the Washington Post similarly found that Trump’s favorability among women has been steadily decliningjeopardizing the Republican Party’s already tumultuous relationship with women. “Trump’s favorability numbers have decreased 10 points among women nationwide since November, to 23 percent, while his unfavorable number among women has jumped to 75 percent from 64 percent, according to a Washington Post-ABC News poll taken this month,” reported the Post.

What Else We’re Reading

Franklin Foer explained for Slate that “there’s one ideology that [Trump] does hold with sincerity and practices with unwavering fervor: misogyny.”

The Washington Post’s Karen Attiah wrote about the sexism she experienced from Donald Trump after asking him a policy question during his sit-down with the paper’s editorial board.

ThinkProgress’ Aaron Rupar explains how the Republican presidential race has turned into a “sexist competition over whose wife is hotter.”

Voters in Arizona had to wait in line as long as five hours to cast a ballot in their state’s Tuesday primary thanks to a Supreme Court decision that “gutted” the Voting Rights Act (VRA) and “an ill-conceived decision” to cut polling locations in order to save money. As the Nation reported, “Phoenix’s Maricopa County, the largest in the state, reduced the number of polling places by 70 percent from 2012 to 2016, from 200 to just 60—one polling place per every 21,000 voters”a change that “would very likely have been blocked” had the VRA’s protections remained intact.

Bernie Sanders applauded Phoenix Mayor Greg Stanton’s request for a Department of Justice investigation into voting delays in Maricopa County.

Dark money groups in Wisconsin are outspending candidates on ads for the Wisconsin Supreme Court race. When voters head to the polls for the April 5 judicial elections, “they won’t know who funded most of the ad spending around this race,” said the Sunlight Foundation’s Libby Watson.  

credo_rewire_vote_3

Vote for Rewire and Help Us Earn Money

Rewire is in the running for a CREDO Mobile grant. More votes for Rewire means more CREDO grant money to support our work. Please take a few seconds to help us out!

VOTE!

Thank you for supporting our work!