Analysis Law and Policy

Electoral Losses for Democrats Spell Bad News for the Courts

Jessica Mason Pieklo

One of the most significant, long-term effects of the Republican electoral wave of 2014 will not just be who serves as justices in the courts, but who the courts decide are entitled to justice.

Well, that was a terrible night.

But let’s start with the good news: Despite gaining control of the Senate, there’s not much Republicans can do immediately to make our federal courts any worse. And without a pending Supreme Court vacancy, we can momentarily catch our breath and try to make some sense of the midterm election results.

Also—and I know we literally just finished one election, so bear with me here—the Senate electoral landscape going into 2016 is a tougher one for Republicans, as the Tea Party wave of 2010 comes up for re-election during a presidential year. That means, in theory at least, that Democrats can in 2016 run some electoral damage control and maybe even re-gain the Senate just in time for a fresh fight over Supreme Court nominations.

So. Super.

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But like everything having to do with the courts, it’s the long game that matters. And with conservatives now more than ever able to direct the judicial nomination process, we can expect our federal courts to slide even further to the right. Most immediately, President Obama and the Democrats will have to figure out which if any of their nominees Republicans would confirm. Remember Michael Boggs, the former legislator and judge of the Georgia Court of Appeals who President Obama nominated for the federal bench in Georgia? Ya know, the one who sees the Confederate flag as a symbol of Southern pride and who as a lawmaker supported extreme anti-abortion restrictions? His candidacy, and the back-room dealings with Republicans that made it possible, will become the rule and not the exception for judicial nominees for the remainder of Obama’s time in office. This is especially true should a vacancy on the Supreme Court open up in the next two years, so let’s all hope that doesn’t happen.

Now consider the appointment last year of Nina Pillard to the D.C. Circuit Court of Appeals. Pillard, a former Georgetown Law School Professor, was labeled an an “extremist” by Senate Republicans because while a professor at Georgetown Law School she argued that access to contraception and abortion is an important part of ensuring gender equality, and as an advocate she argued, and won, the critically important cases of United States v. Virginia, which opened the Virginia Military Institute to women, and Nevada Department of Human Resources v. Hibbs, which successfully defended the Family and Medical Leave Act against claims it was unconstitutional. Senate Democrats nearly shut down the Senate over Pillard’s confirmation, and while she is an excellent addition to the D.C. Circuit Court of Appeals, the reality is that with Republicans controlling the Senate we’re not getting another nominee like her, or any of the current crop of sitting female Supreme Court justices for a long, long time.

If Michael Boggs is an example of the kind of judicial candidates we could expect to see more of, while Nina Pillard is exactly the kind of candidate we will lose going forward, let’s talk about the kind of judicial candidate we can expect from Republicans. Consider the possibility of Supreme Court Justice Emilio Garza, nominated from the U.S. Fifth Circuit Court of Appeals. Garza has come up the ranks of the federal judiciary through Texas and is a favorite among conservative legal scholars. As a sitting judge on the nation’s most conservative federal appeals court, Garza dissented in the Fifth Circuit’s decision that allowed Mississippi’s only abortion clinic to remain open, opining that a federal constitutional right to abortion does not prevent states from regulating out of existence abortion providers within their borders.

Even more important than individual nominations, though, will be the possible effects on the long-term make-up of the federal bench. While President Obama has now appointed more nominees to the federal bench than his predecessor President George W. Bush, and while those nominees have undeniably been more diverse in both race and gender, in terms of ideology both Republicans and Democrats continue to nominate primarily pro-corporate, pro-prosecution candidates. If there’s a Republican-controlled Senate with, say, a President Scott Walker in 2016, this merging of pro-corporate, pro-prosecutorial interests will be complete. Without real ideological diversity on the federal bench, any other benefits of racial and gender diversity, such as developing jurisprudence that recognizes more nuanced forms of racial and gender oppression, begin to fade away. And this happens at a crucial policy moment for this country, as federal courts start the deep dive into current immigration and detention policies, voting rights restrictions, and yet another wave of coming reproductive rights restrictions.

But it gets even worse. In 2014 we saw record spending on state judicial elections, as the politicization of our federal courts has finally trickled down into our state judiciaries writ large. The impact of all this money on judicial elections will take some time to play out, but the early indicators are bad news for social justice and equality advocates. The more money judicial candidates have to spend to get elected, the more likely they are to take positions against the rights of criminal defendants and issue rulings that support corporate interests. As Joe Pinsker pointed out in The Atlantic, it is cheaper to buy a judge than a state senator these days, and as my colleague Zoe Greenberg reported, anti-choice activists have their sights set on stacking state courts with judges who support their regressive social agenda.

Which is all to say one of the most significant, long-term effects of the Republican electoral wave of 2014 will not just be who serves as justices in the courts, but who the courts decide are entitled to justice.

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.

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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.

News Politics

Former Klan Leader on Senate Run: My Views Are Now the ‘GOP Mainstream’

Teddy Wilson

David Duke has been a fervent supporter of the Trump campaign, and has posted dozens of messages in support of Trump on Twitter. Duke has often used the hashtag #TrumpWasRight.

David Duke, convicted felon, white supremacist, and former leader of the Ku Klux Klan, announced Friday that he will run for U.S. Senate in Louisiana, Roll Call reported.

Duke said that after a “great outpouring of overwhelming support,” he will campaign for the open Senate seat vacated by former Republican Sen. David Vitter, who lost a bid for Louisiana governor in a runoff election.

Duke’s announcement comes the day after Donald Trump accepted the GOP nomination in the midst of growing tensions over race relations across the country. Trump has been criticized during the campaign for his rhetoric, which, his critics say, mainstreams white nationalism and provokes anxiety and fear among students of color.

His statements about crime and immigration, particularly about immigrants from Mexico and predominantly Muslim countries, have been interpreted by outlets such as the New York Times as speaking to some white supporters’ “deeper and more elaborate bigotry.”

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Duke said in his campaign announcement that he was the first candidate to promote the policy of “America first,” echoing a line from Trump’s nomination acceptance speech on Thursday night.

“The most important difference between our plan and that of our opponents, is that our plan will put America First,” Trump said Thursday night. “As long as we are led by politicians who will not put America First, then we can be assured that other nations will not treat America with respect.”

Duke said his platform has become “the GOP mainstream” and claimed credit for propelling Republicans to control of Congress in 2010. He said he is “overjoyed to see Donald Trump … embrace most of the issues I’ve championed for years.”

Trump in February declined to disavow the support of a white supremacist group and Duke, saying he knew “nothing about David Duke” and knew “nothing about white supremacists.” He later clarified that he rejected their support, and blamed his initial failure to disavow Duke on a “bad earpiece.”

Trump’s candidacy has also brought to light brought many incidents of anti-Semitism, much of which has been directed at journalists and commentators covering the presidential campaign.

Conservative commentator Ben Shapiro wrote in the National Review that Trump’s nomination has “drawn anti-Semites from the woodwork,” and that the Republican nominee has been willing to “channel the support of anti-Semites to his own ends.”

Duke took to Twitter after Trump’s acceptance speech Thursday to express his support for the Republican nominee’s vision for America.

“Great Trump Speech, America First! Stop Wars! Defeat the Corrupt elites! Protect our Borders!, Fair Trade! Couldn’t have said it better!” Duke tweeted.

Duke has been a fervent Trump supporter, and has posted dozens of messages in support of Trump on Twitter. Duke has often used the hashtag #TrumpWasRight.

Duke was elected to the Louisiana house in 1989, serving one term. Duke was the Republican nominee for governor in 1991, and was defeated by Democrat Edwin Edwards.

Duke, who plead guilty in 2002 to mail fraud and tax fraud, has served a year in federal prison.