In the lead-up to President Obama’s March 16 nomination of Judge Merrick Garland to the Supreme Court, the judge has faced misleading and false attacks, as well as a concerted push for continued obstruction of any Supreme Court nominee chosen by Obama. Here are the facts on the nominee, previous lines of right-wing attack, and facts about the nomination and confirmation processes going forward.
- MYTH: Garland’s Vote To Rehear A 2007 Case On D.C.’s Handgun Ban Reveals A “Very Liberal View On Gun Rights”
- MYTH: Garland Upheld D.C.’s Handgun Ban
- MYTH: Garland Upheld An “Illegal Clinton-Era Regulation” Creating A Gun Registry Requirement
- MYTH: Garland’s Rose Garden Remarks Following His Nomination Were “Highly Unusual”
- MYTH: Refusing To Hold Hearings For President’s Supreme Court Nominee Is Not Unusual
- MYTH: Republicans Opposed Previous Obama Nominees For Legitimate Reasons
- MYTH: Making Nominations To Fill Routine Court Vacancies Is The Same As “Court-Packing”
- MYTH: Republicans And Democrats Are Equal-Opportunity Obstructionists When It Comes To Presidential Nominees
- MYTH: Republicans’ Unprecedented Obstructionism Does Not Have Negative Consequences
Obama Names Judge Merrick Garland As His Nominee To The Supreme Court
Garland, The Chief Judge Of The D.C. Circuit, Is A Respected Jurist With Nearly Two Decades Of Experience. President Obama will reportedly name Garland, the chief judge of the United States Court of Appeals for the District of Columbia Circuit, to fill the vacancy on the Supreme Court during an event at the White House today. Garland has served on the DC Circuit since 1997. [Associated Press, 3/16/2016]
Garland Has Been The Subject Of False Right-Wing Attacks
MYTH: Garland’s Vote To Rehear A 2007 Case On D.C.’s Handgun Ban Reveals A “Very Liberal View On Gun Rights”
JCN’s Severino: Garland’s Vote To Rehear A Case On Handgun Restrictions Indicates “He Has A Very Liberal View On Gun Rights.” In a March 11 post at National Review‘s Bench Memos legal blog, Judicial Crisis Network’s Carrie Severino wrote that a vote Garland cast to rehear a 2007 case on Washington, D.C.’s handgun ban disproved Garland’s reputation as a “moderate,” revealing his “very liberal view on gun rights” because he had agreed with Judge David Tatel, “one of the most liberal judges on the court.” She added his vote signaled a desire to overturn Justice Scalia’s opinion in the Second Amendment case D.C. v. Heller, which is current precedent for the constitutional scope of gun restrictions:
As the White House prepares to choose a nominee for the Supreme Court, they are continuing to suggest that they might nominate a supposed “moderate.”
But Garland has a long record, and, among other things, it leads to the conclusion that he would vote to reverse one of Justice Scalia’s most important opinions, D.C. vs. Heller, which affirmed that the Second Amendment confers an individual right to keep and bear arms.
Back in 2007, Judge Garland voted to undo a D.C. Circuit court decision striking down one of the most restrictive gun laws in the nation. The liberal District of Columbia government had passed a ban on individual handgun possession, which even prohibited guns kept in one’s own house for self-defense. A three-judge panel struck down the ban, but Judge Garland wanted to reconsider that ruling. He voted with Judge David Tatel, one of the most liberal judges on that court. As Dave Kopel observed at the time, the “[t]he Tatel and Garland votes were no surprise, since they had earlier signaled their strong hostility to gun owner rights” in a previous case. Had Garland and Tatel won that vote, there’s a good chance that the Supreme Court wouldn’t have had a chance to protect the individual right to bear arms for several more years.
First, it tells us that he has a very liberal view of gun rights, since he apparently wanted to undo a key court victory protecting them. Second, it tells us that he’s willing to uphold executive actions that violate the rights of gun owners. That’s not so moderate, is it? [National Review, Bench Memos, 3/11/16]
NRA Promoted Severino’s Smears To Assert Garland Is “Bad On Guns,” And Would Overturn Key Legislation. The NRA responded to Obama’s formal nomination announcement on Twitter by promoting JCN’s attack on Garland, claiming that Garland was “bad on guns,” and “has a ‘very liberal view’ on gun rights,” as well as repeating JCN’s baseless suggestion that Garland’s record as a judge on the D.C. Circuit indicates that he would overturn the landmark Second Amendment case District of Columbia v. Heller.
CNN Lets Severino Peddle Claim That Garland Is “Hostile To” The Second Amendment. In an appearance on the March 16 edition of CNN’s CNN Newsroom with Brooke Baldwin, Severino once again misrepresented Garland’s record and argued that he was nominated because of “his decisions on things like the Second Amendment, which he’s hostile to.” [Media Matters, 3/16/16]
FACT: Garland Was Joined By A Well-Known Conservative Judge, Among Others, In Voting To Rehear The Case
Garland Voted, Along With Three Other Judges, To Rehear A 2007 Case That Had Overturned D.C.’s Handgun Ban. In March 2007, a panel of three judges — not including Garland — issued a decision in Parker v. District of Columbia, overturning a lower court case to rule that D.C.’s ban on handgun ownership violated the Second Amendment. After the decision, Garland was one of four judges who voted to rehear the case en banc, a procedure in which the full court can reconsider the case and decide differently. In a 6-4 decision, the court declined to rehear the case en banc. [Media Matters, 3/14/16]
Well-Known Conservative Judge A. Raymond Randolph Also Voted To Rehear The Case. The four votes to rehear the Parker case also included one cast by Judge A. Raymond Randolph, a George H.W. Bush appointee to the D.C. Circuit and a well-known conservative. In fact, JCN — then still operating under the name Judicial Confirmation Network — promoted a discussion between Randolph and ultra-conservative jurist and rejected Supreme Court nominee Robert Bork months after Randolph joined Garland in voting to rehear Parker. [Media Matters, 3/14/16]
NY Times‘ Greenhouse Described Randolph As “One Of The Most Outspoken And Agenda-Driven Conservatives On The Entire Federal Bench.” In a 2014 opinion piece discussing a legal challenge to the Affordable Care Act, New York Times contributor Linda Greenhouse, whose work focuses on the Supreme Court and law, wrote of Judge Randolph:
Judge Randolph is one of the most outspoken and agenda-driven conservatives on the entire federal bench. In a speech to the far-right Heritage Foundation in 2010, for example, he denounced the Supreme Court for having granted habeas corpus rights to the Guantánamo detainees and compared the justices to Tom and Daisy Buchanan in “The Great Gatsby,” “careless people who smashed things up” and “let other people clean up the mess they made.” [The New York Times, 8/20/14]
JCN’s “Topline Points” Opposing Garland Allege He Voted “To Uphold D.C.’s Very Restrictive Gun Restrictions.” Shortly after Obama’s announcement to nominate Garland, JCN released “topline points” outlining its opposition to Garland, claiming that the nominee has “demonstrated a remarkable level of hostility toward the Second Amendment right to keep and bear arms,” including by “voting to uphold D.C.’s very restrictive gun restrictions”:
In multiple cases, Judge Garland has demonstrated a remarkable level of hostility toward the Second Amendment right to keep and bear arms, voting to uphold D.C.’s very restrictive gun restrictions, and siding with the federal government in its plan to retain Americans’ personal information from background checks for firearm purchases. [ScotusBrief.org, 3/16/16]
FACT: Garland Did Not Participate In The Original 2007 D.C. Circuit Decision On The Handgun Ban.
Garland Did Not Participate In The Original Parker Ruling. In 2007, the D.C. Circuit Court — where Garland is chief judge — issued a ruling in the Parker v. District of Columbia case that challenged the constitutionality of Washington’s ban on private handgun ownership. In the 2-1 decision, the D.C. Circuit reversed a lower court’s decision that the D.C. ban was constitutional. Justice Laurence Silberman wrote the majority opinion and was joined by Justice Thomas B. Griffith in finding that D.C.’s gun law violated the Second Amendment. Justice Karen L. Henderson dissented. Garland did not participate in the decision. [Media Matters, 3/14/16, 3/16/16]
In National Review, Severino Alleged Garland Voted “To Uphold An Illegal Clinton-Era Regulation That Created An Improvised Gun Registration Requirement.” Also in her March 11 post to National Review‘s Bench Memos legal blog, Severino argued that Garland had voted to “uphold an illegal Clinton-era regulation” and that Garland is “willing to uphold executive actions that violate the rights of gun owners”:
Moreover, in the case mentioned earlier, Garland voted with Tatel to uphold an illegal Clinton-era regulation that created an improvised gun registration requirement. Congress prohibited federal gun registration mandates back in 1968, but as Kopel explained, the Clinton Administration had been “retaining for six months the records of lawful gun buyers from the National Instant Check System.” By storing these records, the federal government was creating an informal gun registry that violated the 1968 law. Worse still, the Clinton program even violated the 1994 law that had created the NICS system in the first place. Congress directly forbade the government from retaining background check records for law abiding citizens.
Garland thought all of these regulations were legal, which tells us two things. First, it tells us that he has a very liberal view of gun rights, since he apparently wanted to undo a key court victory protecting them. Second, it tells us that he’s willing to uphold executive actions that violate the rights of gun owners. That’s not so moderate, is it? [National Review, Bench Memos, 3/11/16]
FACT: The Regulation Garland Ruled To Uphold Was Considered In Multiple Courts And Never Found “Illegal”
Majority Opinion In NRA v. Reno Case, Which Garland Joined, Affirmed A Lower Court Ruling That The Regulation Was Lawful. The decision in the 2007 D.C. Circuit case National Rifle Association v. Reno found that, while the FBI’s National Instant Criminal Background Check System (NICS) for gun purchases did temporarily retain data of gun owners for the purpose of audits, the practice was lawful and did not violate a federal prohibition on creating a registry of gun owners. Judge Tatel authored the 2-1 majority opinion, and was joined by Garland. Tatel wrote:
Finding nothing in the Brady Act that unambiguously prohibits temporary retention of information about lawful transactions, and finding that the Attorney General has reasonably interpreted the Act to permit retention of such information for audit purposes, we affirm the district court’s dismissal of the complaint. [National Rifle Association of America, Inc. v. Reno, U.S. Court of Appeals, D.C. Circuit, 7/11/00]
The NRA Appealed The Decision To The Supreme Court, And The Court Declined To Take Up The Case. Following the D.C. Circuit decision to affirm the legality of the FBI’s background check system for gun purchases, the NRA appealed the case to the Supreme Court. The conservative-leaning court “without comment, turned aside the NRA’s challenge,” as reported by the Associated Press. [Associated Press, 6/26/01]
On Fox, Varney And Napolitano Agree: “Highly Unusual” For Nominee To Engage In “Public Lobbying” By Delivering Remarks. In a March 16 segment of Fox Business’ Varney & Co. discussing the announcement of Garland’s nomination to the court, host Stuart Varney and guest Andrew Napolitano agreed that the act of Garland delivering remarks after the presidents’ announcement of his nomination at the White House was “extremely unusual,” “highly unusual,” and asserted that the remarks seemed “like lobbying for the job:”
STUART VARNEY (HOST): You have just heard President Obama introduce his Supreme Court nominee Judge Merrick Garland and you heard Judge Merrick Garland himself. Judge Napolitano is with me now. I was surprised to hear Judge Merrick Garland say anything there. Forgive me, but it sounded to me a bit like he was lobbying for the job.
ANDREW NAPOLITANO: It did sound like he was lobbying. It sounded like an emotional plea for the propriety of his nomination. Obviously it was something the White House wrote or approved. It is highly unusual for the nominee, him or herself, to engage in any type of public lobbying and really should be reserved for behind the scenes with the members of the Senate.
VARNEY: That was unusual.
NAPOLITANO: Extremely unusual for a sitting judge who’s regulated by what we call the canons of judicial ethics about what he or she may say in public and may not say in public. Highly unusual for this. I was quite surprised. We were kidding with each other, could you imagine Ronald Reagan calling Justice Scalia Antonin and saying, “OK, the microphone is yours.” A different era, a different president, different morals, different values, but this was most unusual what we just saw. [Fox Business Network, Varney & Co., 3/16/16]
Fox’s Napolitano Also Implied Reagan Would Never Have Allowed A Nominee To Make Remarks. In the same March 16 segment of Varney & Co., Napolitano also that it would be difficult to “imagine” a nominee of President Ronald Reagan’s — such as the late Justice Scalia — being allowed to take over a microphone:
ANDREW NAPOLITANO: Extremely unusual for a sitting judge who’s regulated by what we call the canons of judicial ethics about what he or she may say in public and may not say in public. Highly unusual for this. I was quite surprised. We were kidding with each other, could you imagine Ronald Reagan calling Justice Scalia Antonin and saying, “OK, the microphone is yours.” A different era, a different president, different morals, different values, but this was most unusual what we just saw. [Fox Business Network, Varney & Co., 3/16/16]
FACT: Reagan, Bush, and Obama Nominees Have All Spoken Publicly After Being Nominated
Reagan Nominee Antonin Scalia Made Public Statements Following His Nomination. President Ronald Reagan nominated Justice William Rehnquist to the chief justice position and Antonin Scalia to an associate justice position on the Supreme Court. According to transcripts from the Reagan Library, Scalia answered questions from reporters following the announcement. [Reagan Library, via Media Matters, 6/17/86]
Reagan Nominee Anthony Kennedy Delivered Remarks After His Nomination. Reagan nominated Anthony Kennedy to serve on the court. A video of the nomination announcement also shows that Kennedy delivered remarks following his nomination by Reagan. [YouTube.com, accessed 3/16/16]
George W. Bush Nominees Samuel Alito And John Roberts Also Delivered Remarks After Their Nomination Announcements. Archived footage from the Associated Press shows that both of President George W. Bush’s nominees to the Supreme Court, Samuel Alito and John Roberts, delivered remarks following their nominations. [YouTube.com, accessed 3/16/16, 3/16/16]
Obama Nominees Sonia Sotomayor And Elena Kagan Delivered Similar Remarks Following Their Nominations. Both previous Obama nominees to the Supreme Court also delivered public remarks following their nominations. [YouTube.com, accessed 3/16/16, 3/16/16]
In Unprecedented Move, Conservatives Have Vowed To Oppose Any Nominee
Senate Majority Leader Mitch McConnell (R-KY): SCOTUS Vacancy “Should Not Be Filled Until We Have A New President.” CBS News reported on February 13 that Senate Majority Leader Mitch McConnell expressed his intention to prevent the confirmation of any nominee before a new president takes office in 2017:
Senate Majority Leader Mitch McConnell, R-Kentucky, believes the U.S. Senate should wait 11 months for the next president to be sworn in before confirming a Supreme Court justice to replace the late Justice Antonin Scalia.
“The American people should have a voice in the selection of their next Supreme Court Justice,” the conservative leader said in a statement following the news of Scalia’s death. “Therefore, this vacancy should not be filled until we have a new president.” [CBS News, 2/13/16]
Senate Republican Leadership Has Expressed Its Intention Not To Hold Hearings For Any Nominee. Politico reported on February 23, “Senate Republicans will deny hearings to a Supreme Court nominee from President Barack Obama and Senate Majority Leader Mitch McConnell said he’s not inclined to even meet with whomever the president picks for the job.” [Politico, 2/23/16]
Initial Reporting On Republican Obstructionism Downplayed Unprecedented Nature Or Ignored It Outright. Initial reporting the week following Scalia’s death failed to emphasize the lack of precedent for the GOP leadership’s claims and strategy surrounding the vacancy. For example, one February 16 New York Times article noted that the Obama administration and Democrats in Congress were merely “portraying” the GOP’s actions as unprecedented, even though the historical record shows that charges of Republicans’ unprecedented obstructionism are based in fact. The Times also presented Democrats and Republicans as equally blameworthy for judicial nominee obstruction, suggesting that Obama was somehow contributing to the battle. Right-wing outlets like The Washington Times misrepresented the nature of McConnell’s threats — suggesting he simply refused to confirm, not that he refused to even hold hearings — to falsely argue, “Republicans have the Constitution, history, pragmatism and democracy on their side. Obama and the Democrats have only chutzpah.” [Media Matters, 2/18/16; Media Matters, 2/16/16]
FACT: Historically, The Senate Has At Least Considered Presidential Nominees, Even In An Election Year
The Senate Has Considered Every Nominee Since 1875. Explaining modern precedents surrounding Supreme Court nomination and confirmation norms, the White House noted on its website that “since 1875, every nominee has received a hearing or a vote”:
Every nominee has received a vote within 125 days of nomination.
Since 1975, the average time from nomination to confirmation is 67 days. In fact, since 1875, every nominee has received a hearing or a vote. The longest time before confirmation in the past three decades was 99 days, for Justice Thomas, and the last four Justices, spanning two Administrations, were confirmed in an average of 75 days.
The Senate has almost a full year — more than 300 days — to consider and confirm a nominee. [WhiteHouse.gov, accessed 2/29/16]
The Modern Confirmation Process Undoubtedly Involves Public Hearings And Consideration By The Senate. According to the Congressional Research Service (CRS), of more than 40 Supreme Court nominations made since the Senate Judiciary Committee began the practice of holding public hearings to question nominees in 1939, every nominee that was not withdrawn by the president received a public hearing or vote by the full Senate. Justices James Byrnes and Harold Burton were confirmed by the Senate without holding public hearings in 1941 and 1945, respectively. No Judiciary Committee action was taken on initial nominations of Justices John Harlan II and John Roberts, but both were re-nominated in short order, given public hearings, and confirmed by the Senate. In 2005, President George W. Bush withdrew his nomination of Harriet Miers before hearings could be held. In every other case, the nominee received one or more public hearings in the Judiciary Committee. [Supreme Court Nominations, 1789 – 2009: Actions by the Senate, the Judiciary Committee, and the President, Congressional Research Service, 5/13/2009]
Throughout U.S. History, The Full Senate Has Nearly Always Voted On The Nominee. According to a historical survey of the nomination process — covering both the modern public hearing process and different Senate norms that preceded the modern process — 149 of 160 nominations to the Supreme Court in U.S. history have been confirmed or rejected after receiving consideration by the full Senate:
Throughout the nation’s history, there have been 160 nominations to the Supreme Court. Of these, 123 nominations received Senate confirmation, and 26 nominations were rejected by the Senate. The remaining nominations were either withdrawn by the president or never considered by the Senate. Thus, statistically speaking, presidents are quite successful in obtaining Senate support for their nominees: more than 75% of presidential nominations gained Senate approval. [Supreme Court Confirmation Hearings and Constitutional Change, Kindle Locations 670-674, 2013]
Since 1900, Six Supreme Court Vacancies Have Been Filled During Election Years. According to SCOTUSblog, “The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election.” SCOTUSblog listed six instances where vacancies were filled during election years, and also explained two cases since 1900 where “presidents were not able to nominate and confirm a successor during an election year” by describing how neither case “reflects a practice of leaving a seat open on the Supreme Court until after the election”:
In the wake of the death of Justice Antonin Scalia, questions have arisen about whether there is a standard practice of not nominating and confirming Supreme Court Justices during a presidential election year. The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years.
In two instances in the twentieth century, presidents were not able to nominate and confirm a successor during an election year. But neither reflects a practice of leaving a seat open on the Supreme Court until after the election.
On September 7, 1956, Sherman Minton announced his intent to retire in a letter to President Dwight D. Eisenhower, and he served until October 15, 1956. With the Senate already adjourned, Eisenhower made a recess appointment of William J. Brennan to the Court shortly thereafter; Brennan was formally nominated to the Court and confirmed in 1957. The fact that Eisenhower put Brennan on the Court is inconsistent with any tradition of leaving a seat vacant.
And in 1968, President Lyndon B. Johnson nominated Abe Fortas, who was already sitting as an Associate Justice, to succeed Chief Justice Earl Warren, but the Fortas nomination was the target of a bipartisan filibuster — principally in reaction to the Warren Court’s liberalism and ethical questions about Fortas, although objections were certainly also made that it was inappropriate to fill the seat in an election year. That filibuster prompted Homer Thornberry, whom Johnson nominated to succeed Fortas as an Associate Justice, to withdraw his name from consideration in October 1968, because there was no vacancy to fill. Moreover, the failure to confirm Fortas as the Chief Justice did not leave the Court short a Justice, because Chief Justice Earl Warren remained on the bench. [SCOTUSblog, 2/13/16]
Fox News Repeated False Claim By “Critics” That Cornelia Pillard Would Be The Most Far-Left Judge In U.S. History. In the July 24 edition of Fox’s America Live, Fox News’ Shannon Bream credulously repeated baseless criticism of judicial nominee Cornelia “Nina” Pillard, calling her “controversial” and claiming that “critics” of Pillard were “describing her as potentially the most left-leaning justice or judge in the history of the Republic.” [Fox News, America Live, 7/24/13]
Fox News Reported On D.C. Circuit Judicial Nominee Nina Pillard By Parroting Critics Who Baselessly Called Her A “Radical Feminist.” In a November 25 segment on America’s Newsroom, Bream reported on the right-wing criticism of Pillard, namely the baseless charge that she is a “radical feminist”:
[Fox News, America’s Newsroom, 11/25/13]
FACT: Senate Republicans Routinely Obstruct Noncontroversial, Qualified Nominees
Republicans Held Up Three Highly Qualified Nominees To Fill Vacancies On The U.S. Court Of Appeals For The D.C. Circuit. Prior to Sen. Harry Reid’s reform of filibuster rules in November 2013 to counteract Republican senators’ unprecedented obstructionism of judicial nominees, Senate Republicans held up the nominations of Patricia Millett, Robert Wilkins, and Cornelia Pillard to the D.C. Circuit Court, even though they all were highly qualified. The Huffington Post noted that Republicans “readily admit … they don’t really have a problem with any of Obama’s picks for the D.C. Circuit,” which is considered the second most important court in the nation, but “just don’t want [Obama] to fill its three vacancies”:
Senate Republicans filibustered another one of President Barack Obama’s nominees on … Nina Pillard, a Georgetown University law professor and a noncontroversial nominee to the D.C. Circuit Court of Appeals.
Republicans readily admit their opposition to Pillard isn’t about her. In fact, they don’t really have a problem with any of Obama’s picks for the D.C. Circuit, the second most powerful court in the nation. They just don’t want him to fill its three vacancies. Many of them say the court isn’t busy enough to warrant filling its empty seats; others make the counterintuitive argument that Obama is “court-packing” by filling routine vacancies. But both of those arguments gloss over the fact that the president, any president, has a constitutional duty to fill empty court seats, and barring extraordinary circumstances, the Senate is supposed to give nominees a vote.
Pillard’s filibuster is the latest example of how the Senate isn’t holding to that standard anymore. Not only is she the third noncontroversial nominee that Republicans have filibustered in the last two weeks, but she is now the 20th Obama nominee who is either currently being blocked or was blocked and ultimately withdrew from the process. Those blockages cause a logjam that reverberates through the judiciary and the executive branch, as positions have gone unfilled at crisis levels dating back to 2007.
The Huffington Post crunched some data and found that, as of Tuesday, 13 judicial nominees have been returned to Obama and were not renominated or withdrew their nominations, four judicial nominees aren’t moving because GOP senators won’t let them advance in the Senate Judiciary Committee, and three other nominees (two judicial, one executive) were recently filibustered for reasons that had nothing to do with their qualifications. [Huffington Post, 11/13/13]
The American Bar Association Unanimously Rated Pillard, Wilkins, And Millet Well-Qualified For The D.C. Circuit Court. Among judicial nominees rated by the American Bar Association (ABA) for the 133th Congress, Pillard, Wilkins, and Millet all received the highest possible rating. [American Bar Association, 2/6/14]
Victoria Nourse’s Unsuccessful Judicial Nomination Held Up By Republicans For 19 Months. University of Wisconsin law professor Victoria Nourse asked President Obama to withdraw her nomination to the U.S. Court of Appeals for the Seventh Circuit in January 2012 after it had been blocked by Republicans since July 2010, without regard to her legal expertise. In a statement, Nourse mentioned she had worked for both a Democratic and a Republican president, writing, “I have nothing else to say at this time, except to refer you to the letter sent by legal experts across the nation, among them many conservatives, supporting my nomination and objecting to the procedure that has been used to block it. To quote Chief Justice Roberts, ‘the system is broken.'” [Journal Sentinel, 1/19/12]
The American Bar Association Gave Nourse A Unanimous Well-Qualified Rating. [American Bar Association, accessed 2/29/16]
Fifty-Three Legal Academics, Including Conservatives, Called For Nourse To Receive A “Prompt Vote,” Noting That She Was Well-Qualified And Noncontroversial. A July 2011 letter signed by dozens of legal academics noted that “there has been no public opposition to [Nourse’s] nomination,” and argued that “this delay raises serious questions about whether the Senate is fulfilling its constitutional role to provide the President’s nominees with a prompt hearing and full Senate vote” (emphasis original):
We urge you to hold a Senate Judiciary Committee hearing and seek a prompt vote for Seventh Circuit nominee Victoria F. Nourse.
Since her nomination, there has been no public opposition to her nomination. Yet, almost two years since the seat became vacant, and eighteen months since the Wisconsin nominating commission recommended her for the announced vacancy, Professor Nourse has yet to receive a hearing or a vote. Purely as a matter of process, this delay raises serious questions about whether the Senate is fulfilling its constitutional role to provide the President’s nominees with a prompt hearing and full Senate vote.
A nominee of sterling credentials, who has served her country under Republicans and Democrats, who was approved by a state merit commission, and praised by the A.B.A., should not be subject to unending delay. For a single Senator from one state within the Circuit to assert a hold, months after the nomination was complete, undermines Wisconsin’s merit-based selection system, blocking highly qualified nominees from a hearing and a vote. This hold is being justified under the Senatorial convention known as a “blue slip.” In this case, there has been no substantive reason asserted for the blue slip based on the nominee’s qualifications. A hold without reason is an arbitrary Senatorial process, for any nominee of any party. It allows one Senator the ability to bar a hearing and a vote on a nominee with broad based support. The effect is an unbreakable one-person-filibuster. The rights of a Senatorial minority are not at issue (even if the objection were withdrawn, filibuster by a minority of Senators remains a procedural possibility); the only question is the right of a single Senator to retroactively assert this privilege to block a highly qualified nominee from even a hearing. [Letter to the Senate Judiciary Committee, 7/14/11; Milwaukee-Wisconsin Journal Sentinel, 7/18/11]
Washington Examiner Described Obama’s Plan To Nominate Scalia Replacement As “Court Packing.” A February 16 editorial published by the Washington Examiner used the term “court packing” to describe Obama’s plan to name a nominee. The editorial urged Republicans not to confirm any Obama nominee. [Washington Examiner, 2/16/16]
Judicial Crisis Network Policy Director: Obama May Try To “Pack The Court” By Replacing Scalia. Carrie Severino, who serves as chief counsel and policy director at the conservative Judicial Crisis Network organization, told The Washington Post in response to the current Supreme Court vacancy that “if the president tries to pack the court, as it is apparent he may, then JCN will be leading the charge to delay a Senate vote until the American people decide the next president.” [The Washington Post, 2/15/16]
To read more about the Judicial Crisis Network — called the Judicial Confirmation Network during the Bush years — and why the media should not treat them seriously, click here.
FACT: Term “Court-Packing” Refers To A President’s Attempt To Increase The Number Of Seats On A Court, Not Fill A Vacancy
MSNBC’s Steve Benen: What Conservatives Now Call “Court Packing” Is Actually “Basic American Governance.” Rachel Maddow Show producer Steve Benen explained in a November 2013 blog post that it was inaccurate to call Obama’s plan to fill D.C. Circuit vacancies a “court-packing” scheme because the term actually refers to “an FDR-era idea in which the executive branch would expand the number of seats on a bench in order to tilt the judiciary in the president’s favor”:
Dylan Matthews noted yesterday that Grassley believes rascally Democrats and the Obama administration are trying to “pack the court” through a “court-packing” scheme. Grassley was reading carefully from a prepared text, suggesting the Iowa Republican was quite serious about the argument – he repeated it five times.
It fell to Sen. Sheldon Whitehouse (D-R.I.), Grassley’s colleague on the Senate Judiciary Committee, to gently explain that Grassley has no idea what he’s talking about. “Court packing” was an FDR-era idea in which the executive branch would expand the number of seats on a bench in order to tilt the judiciary in the president’s favor. The idea was floated in the 1930s, but not seriously pursued.
What we’re talking about in 2013 is very different. There’s a vacancy on the federal bench; the president chooses a nominee to fill that vacancy; the Senate Judiciary Committee scrutinizes that nominee and sends him or her to the floor; and then the Senate’s full membership has an opportunity to vote “yea” or “nay” on confirmation.
Chuck Grassley sees this as some kind of underhanded Democratic scheme. The rest of us should consider it basic American governance.
Postscript: I should note that if Senate Republicans reclaim the majority after the 2014 midterms, Grassley would become chairman of the Senate Judiciary Committee, despite his apparent confusion on these issues. [MSNBC.com, 11/7/13]
PolitiFact: “The Claim That Obama Is ‘Packing’ The D.C. Circuit Court Largely Runs Counter To American Legal And Political History.” [PolitiFact.com, 6/5/13]
MYTH: Republicans And Democrats Are Equal-Opportunity Obstructionists When It Comes To Presidential Nominees
Wall Street Journal Editorial Board: Obama-Era Judicial Nominee Obstruction Comparable To Democratic Obstruction Under President George W. Bush. Arguing that “Presidents deserve up-or-down votes on judicial nominees,” The Wall Street Journal‘s editorial board claimed in 2013 that “Republicans are merely following the filibuster precedent that Democrats set when George W. Bush was President”:
President Obama denounced “the Republican pattern of obstruction,” but Republicans are merely following the filibuster precedent that Democrats set when George W. Bush was President. Turnabout is unfair play.
Presidents deserve up-or-down votes on judicial nominees, and our politics would be healthier if the Senate went back to that standard. But we warned Democrats in 2002 about the filibuster precedent they were setting against [previous GOP judicial nominee Miguel] Estrada. Now they’re reaping the consequences. [The Wall Street Journal, 3/11/13]
Fox News Media Critic Howard Kurtz: Republicans And Democrats “Play The Same Game” On Blocking Presidential Nominees. In a November 22, 2013, column following Sen. Harry Reid’s reform of filibuster options, Kurtz falsely equated how presidential nominees have been treated under Obama to the approach under Bush:
The reason this story makes me roll my eyes is that both parties play the same game. When they’re in the minority, as the Democrats were during the Bush administration, they stall, block and filibuster the other party’s nominees and try to wrap it in some kind of principle. When they’re in the majority, they wail and moan about obstructionist behavior by a ruthless opposition determined to cripple the president. It’s Beltway hypocrisy at its finest.
It was striking that Obama (who spoke in favor of the filibuster as a senator) came out into the briefing room to praise the move by Harry Reid and beat up on the Republicans for “repeated abuse of these tactics” (though he allowed that “neither party has been blameless for these tactics”). He said about 20 nominees were filibustered in the few decades before he took office, while almost 30 have suffered that fate during his administration (that includes several recent judicial nominees).
Oddly, the president used his turn at the mike to blame the Republicans for blocking efforts to create jobs, equal pay for women, immigration and gun control — though none of those issues are affected by a vote that was strictly about presidential nominations, except to the Supreme Court. [FoxNews.com, 11/22/13]
FACT: Obama-Era Obstruction By Republicans Was Unprecedented
Wash. Post: Filibuster Abuse Is Unprecedented And “Half Of All Filibusters Of Executive-Branch Nominees Have Occurred Under President Obama.” The Washington Post‘s James Downie pointed out that during the Obama administration, the GOP has turned the filibuster “from a rarity to an oft-used tool for nullification and unprecedented obstruction”:
Until very recently in U.S. history, filibusters were rarely used. Half of all filibusters of executive-branch nominees have occurred under President Obama, and it was obvious from the first day of his presidency that Republicans would use the tactic to hamstring the government and block Obama.
Senate Majority Leader Harry Reid, then, had every right to push for changes to filibuster rules four years ago, when GOP use of the filibuster was already out of control. But instead, Reid offered deal after deal to Senate Republicans. They accepted some. They honored none. Instead, the delaying tactics have continued. Frequently they have been used to block the implementation of laws the Senate had passed — the two-year filibustering of the first head of the Consumer Financial Protection Bureau, for example, just because Republicans didn’t like the law. And Republicans have paired judicial nullification with legislative nullification, blocking a record number of Obama’s judicial appointees — a power the Constitution actually mentions, unlike the filibuster — for no real reason other than that they were Democratic nominees, not Republican ones. (Democrats were guilty of this under President George W. Bush as well, it must be noted, and deserve criticism for that, even if the number of filibusters was lower.)
[The GOP] could have stopped the unprecedented number of filibusters of presidential nominations, given that the president has a clearly defined constitutional responsibility to appoint people. They could have stopped blocking duly passed laws. But they didn’t.
So Republicans decrying filibuster reform as “dictatorial” or “a day to be sad” or other hyperbolic claims should look in the mirror. No one forced them to turn filibusters from a rarity to an oft-used tool for nullification and unprecedented obstruction. They have only themselves to blame. [The Washington Post, 11/21/13]
PolitiFact: Republican Blocking Of Obama Nominees Is “Disproportionate By Historical Standards.” After Reid triggered the “nuclear option,” PolitiFact noted that “by our calculation, there were actually 68 individual nominees blocked prior to Obama taking office and 79 (so far) during Obama’s term”:
This matters because some of the nominations resulted in multiple cloture efforts. By our calculation, there were actually 68 individual nominees blocked prior to Obama taking office and 79 (so far) during Obama’s term, for a total of 147.
Reid’s point is actually a bit stronger using these these revised numbers. Using these figures, blockages under Obama actually accounted for more than half of the total, not less then half. Either way, it’s disproportionate by historical standards.
Indeed, when we presented this finding to Reid’s office, they agreed and released an updated version of the graphic. It now reads, “In the history of the United States, there have been 168 filibusters of presidential nominees, 82 filibusters under President Obama, 86 filibusters under all other presidents.”
“Point well taken on the number,” Reid spokesman Adam Jentleson told PolitiFact. “We have actually been careful to specify that 168 is the number of times a nominee was blocked in our materials. The miswording was unintentional. I don’t think the point is any less strong when it is worded as ‘times’ versus ‘nominees.'” [PolitiFact, 11/22/13]
Slate: Bush’s Extreme Nominees Still Have “Staggering” Effect On Judiciary. Though it is true that Senate Democrats opposed some of Bush’s nominees during his presidency, the use of the filibuster was generally limited to right-wing nominees who were out of the legal mainstream and who were pushed through the confirmation process aggressively:
If Priscilla Owen and Janice Rogers Brown sound familiar to you, that’s because they were the two Bush judicial nominees at the center of the Great Filibuster Showdown of 2005. In May 2001, just after taking office, Bush introduced 11 nominees for vacancies on the federal appellate courts. He was signaling his intention to reshape the federal judiciary, and his willingness to fight for his nominees, right down to the bloody end. Because that’s what his base demanded. Democrats blocked some of those appointments. Bush stuck to his guns. In 2004, immediately following his re-election and emboldened by Republican gains in the Senate, he pushed forward a list of judges he planned to renominate, despite what he characterized as years of Democratic obstruction. Both Owen and Brown were on that list. And as Charlie Savage detailed at considerable length in 2008, the effect of the Bush nominations on the federal judiciary was staggering. It still is.
Obama cared enough about the Supreme Court to push for his two nominees, Elena Kagan and Sonia Sotomayor. But with a handful of notable exceptions, the president has not made bold choices for the appeals courts. And when his nominees have met obstruction in the Senate, he has rarely fought for them. Last summer, when he tapped Millett, Obama signaled that he was ready to take a bigger stand by presenting her as part of a package of three D.C. Circuit choices. Now it’s time for him to come through. If he needed any more reminders of the power of the bench — a power that endures for decades after a presidency has ended — [recent anti-reproductive rights decisions by] Owen and Brown just gave it to him. In a double dose. [Slate, 11/1/13]
Conservative Media Argued That There Was No Urgency To Fill Critical Vacancies On The D.C. Circuit Court. During ongoing Republican obstructionism against three qualified, noncontroversial Obama nominees, conservative media figures misled about the nature of the D.C. Circuit Court’s caseload to argue that there was no pressing need to fill the vacancies. [Media Matters, 10/30/13; Media Matters, 9/6/13]
FACT: Vacancies Created By Republicans’ Judicial Nominee Obstructionism Make Federal Court System Less Efficient And Less Capable Of Addressing Americans’ Concerns
Center For American Progress: “Millions Of Americans Are Being Denied Access To Justice.” The Center for American Progress explained that “the number of judicial emergencies … nearly tripled” in 2015 following “the worst obstruction of judicial nominations in more than half a century”:
In 2015, the U.S. Senate has confirmed just 11 federal judges to the bench, and the number of judicial emergencies has nearly tripled. As the graphic below shows, this is the worst obstruction of judicial nominations in more than half a century. As a result, millions of Americans are being denied access to justice.
[Center for American Progress, 2/23/16]
The U.S. Judicial Conference Has Declared 31 Current “Judicial Emergencies.” “Judicial emergencies” are declared on the basis of federal courts’ respective caseloads and how long vacant positions have remained unfilled. [United States Courts, accessed 2/29/16; United States Courts, accessed 2/29/16]
People For The American Way: Federal Court Vacancies Create Delays For Civil Cases That Hurt “Real People.” A 2012 report from the People for the American Way (PFAW) noted that “court delays damage small businesses, whether they are seeking to vindicate their rights as plaintiffs or to put a lawsuit behind them,” and cause “long delays for Americans seeking justice in cases involving discrimination, civil rights, predatory lending practices, consumer fraud, immigrant rights” and other areas. [People For the American Way, 2012]
Constitutional Accountability Center: “When The Supreme Court Has A Vacancy, It Simply Cannot Function As It Is Supposed To.” Brianne J. Gorod, chief counsel for the Constitutional Accountability Center, wrote that the “practical result” of Republicans’ refusal to consider the president’s eventual nominee to the Supreme Court would be “simple and harmful.” With an eight-person court, many important cases would face the increased risk of deadlocking 4-4, leaving lower court decisions in place and different laws regulating different places. “For individuals, these different rules may be unjust and confusing. For businesses, these different rules may make it exceedingly difficult to operate in multiple parts of the country,” Gorod wrote, an outcome that “undermines the rule of law and is undeniably bad for the country, whatever one’s ideology”:
The consequences of the Supreme Court being without all nine justices for so long can hardly be overstated. Most significant, a long-standing vacancy would compromise the Court’s ability to perform one of its most important functions, that is, establishing a uniform rule of law for the entire country. In the rule governing how the Supreme Court decides which cases to hear, the first two (of three) considerations provide that the Court should review a case when there are conflicting decisions among the courts below. Justice Scalia himself once told the Senate Judiciary Committee that his colleagues on the Court are guided by these questions in deciding whether to hear a case: “Is there a circuit conflict? Is this a significant issue on which the lower courts are divided? … [I]f there’s no disagreement below, we don’t get involved.” By hearing cases in which lower courts are divided, the Court can settle the dispute and establish one rule of law to govern the entire nation.
But there will be many cases in which the Court cannot do that when it has only eight members. There’s no question that on this sharply divided Court, the potential for 4-4 decisions will be strong. When that happens, the Court cannot resolve these conflicts because it cannot establish a precedential decision. When the Court decides a case 4-4, the ruling of the court below is affirmed, but there is no binding decision of the Supreme Court that governs the rest of the nation. As a result, vital questions about our nation’s laws and the Constitution will be left unanswered. Sometimes these questions may be in high profile cases touching on such issues as the environment or religion; other times they may be in cases that don’t normally get much attention, but are nonetheless important (for example, cases involving whether individuals can sue in court when their rights under federal law are violated).
The practical result is simple and harmful: people will be subjected to different rules in different parts of the country. For individuals, these different rules may be unjust and confusing. For businesses, these different rules may make it exceedingly difficult to operate in multiple parts of the country. And, again, if some Republicans have their way, the Court will be unable to resolve these conflicts for at least the majority of two of its Terms. That result undermines the rule of law and is undeniably bad for the country, whatever one’s ideology. It is, in short, simply unacceptable. [Constitutional Accountability Center, 2/16/16]