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December 21, 2014

Posts in "The Judiciary"

September 15, 2014

Nuclear Option Helped Obama Refashion Bench

reid mcconnell 163 091114 445x275 Nuclear Option Helped Obama Refashion Bench

(Bill Clark/CQ Roll Call)

Ten months after his fellow Democrats “went nuclear” in the Senate on his behalf, President Barack Obama is done putting his stamp on the federal judiciary — at least for the year, but maybe forever if Republicans take control of the place.

Majority Leader Harry Reid’s decision to exercise the so-called nuclear option, which he and his predecessors from both parties had threatened for more than a decade, created the biggest change in the congressional rules since the 1970s. Taking away the filibuster as a weapon for defeating nominees has given Obama nearly free rein this year in populating his own administration and the regulatory agencies.

Even more importantly, last November’s historic power play allowed the president to brush past intense GOP objections and reclaim an important outlet for perpetuating his legacy: Filling lifetime positions on the courts with like-minded judges who will still be serving long after Obama’s second term is over.

That probably will stop cold if the Senate switches partisan control come January. While Republicans can’t prevent votes on Obama’s choices while in the minority, they would be under no obligation to schedule any roll calls for his nominees if they’re the majority.

No matter what the electorate decides in seven weeks, Obama has already succeeded in his bid to refashion the bench — and the nuclear option has played a significant role. He has filled 30 percent of all the seats on the circuit courts of appeal, with a crucial 13 of those 53 judges confirmed since the filibuster was neutered. The bottom line result is that appointees of Democratic presidents are now the majority on nine of the 13 appellate courts — a nearly total reversal since Obama took office, when 10 had majorities of GOP appointees. (Thanks to four confirmations that launched the Senate’s post-nuclear era, the most important transformation was effected at the D.C. Circuit Court of Appeals, the second-most influential bench in the country after the Supreme Court because it hears so many challenges to federal regulations.) Full story

April 16, 2014

‘Lying in Politics’ Plaintiffs Go on Offense in Several New States

The lead plaintiff in the “Can you lie in politics?” case going before the Supreme Court next week, anti-abortion group Susan B. Anthony List, says Ohio’s law against false campaign assertions will stifle that state’s midterm congressional debates.

The group is apparently not worried about a similarly chilling effect elsewhere – at least not in four races elsewhere in the country where it’s inserted itself in recent days.

Over the weekend, the SBA List said it has arranged to put space on billboards across three Southern states to lambaste a trio of incumbent Democratic senators in some of the closest Senate races of 2014: Kay Hagan of North Carolina, Mary L. Landrieu of Louisiana and Mark Pryor of Arkansas. Because all of them voted for the 2010 health care overhaul, each of them can fairly be described as supporting federal financing of abortion, the group says, and that will be the central message on the roadside signage. Full story

April 14, 2014

Can You Lie in Politics? Supreme Court Will Decide

chabot 08 111510 445x295 Can You Lie in Politics? Supreme Court Will Decide

The Supreme Court will consider a case about lying in politics, revisiting a fight from Chabot’s 2010 campaign in Ohio. (Bill Clark/CQ Roll Call File Photo)

The Supreme Court has made pretty clear that putting your money where your mouth is deserves broad protection as a form of free political speech. The justices are about to consider whether outright lying in a campaign deserves a similar First Amendment shield.

The court’s recent decisions easing the flow of generous campaign contributions already shifted the electoral landscape. If the court finds that even the most patently outrageous statements about candidates may not be barred by law, those two decisions combined could expand the rhetorical battlefield of the midterm elections and raise the attack ad volume as never before.

With Congress in the middle of its spring recess, few if any members are expected to attend the April 22 oral arguments. But they will all surely have their ears tuned for word about the decision, expected by the end of the term in June.

Full story

April 6, 2014

A Landmark Election Ruling, Made by Justices With Minimal Campaign Involvement

scotus 067 100813 445x296 A Landmark Election Ruling, Made by Justices With Minimal Campaign Involvement

The scene at the Supreme Court as justices heard oral arguments in McCutcheon vs. FEC. (Bill Clark/CQ Roll Call File Photo)

One way of looking at the latest Supreme Court decision speeding the flow of big money into elections — a ruling destined to have a bigger impact on the culture of Congress than anything that happens at the Capitol this year — is that one side’s definition of political reality narrowly prevailed over the other.

Scenarios about the corrupting potential of so many more millions going to candidates, Chief Justice John G. Roberts Jr. asserted in the controlling opinion, “are either illegal under current campaign finance laws or divorced from reality.”

“In reality,” Justice Stephen G. Breyer countered on behalf of the four dissenters, “the anti-corruption interest that drives Congress to regulate campaign contributions is a far broader, more important interest” than the five-person majority recognizes.

It’s hardly unusual that, after considering the same collection of facts and arguments, the court’s conservative majority declares the glass at least half full, while the liberal minority insists the same vessel is more than half empty. What’s remarkable in this disagreement is how distant the justices are from experiencing the reality of the modern political money system.

On the current court, only Roberts and Justice Elena Kagan have donated to federal candidates or political action committees in the past 16 years, according to the Federal Election Commission database of itemized contributions.

The most obvious reason is that the other seven justices have been sitting somewhere on the federal bench since before 1997, when the FEC began digitizing donation records. And, because of the obvious potential for a conflict of interest, the official code of conduct for United States judges prohibits them from making political contributions.

But that explanation leads directly to one of the longstanding criticism of the modern Supreme Court: It has become so dominated by professional jurists that people who have worked in the political arena have been almost entirely boxed out. Full story

January 12, 2014

A Balance of Powers Case With Senate GOP Power in the Balance

One of the biggest congressional stories of the decade starts unfolding Monday — not at the Capitol, but across the street.

The Supreme Court will hear arguments in an epic balance of powers battle between the other two branches, one that’s been waiting to happen since George Washington’s time. During the hour, the justices may or may not signal clearly whether they’re going to permit the continued expansive use of the president’s recess appointment authority — or seriously limit its use for the first time.

That second outcome would give the Senate enormously more influence over the leadership of the departments and agencies and the tenor of the federal courts. But if the court rules that way, it will be almost impossible to notice any difference in the power dynamic before the beginning of next year — if then.

It may sound a bit paradoxical, but it’s the “nuclear option” that would guarantee such a delayed reaction.

And during that delay, a new measure of importance would get attached to the midterm elections. Full story

October 29, 2013

A Filibuster Holiday? Christmas Comes Early for Obama in the Senate

Seven skirmishes in the Senate confirmation wars are being fought more or less simultaneously this week.

By the time these tussles conclude — after a series of test votes that could stretch into next week — there’s a decent chance President Barack Obama and his Democratic front men will have emerged undefeated, or nearly so.

That would amount to a solid second victory for the president on top of this month’s triumph in the shutdown and default standoff, one he could bask in for a few days because the oppositional Republican House will be silent for the next week, in recess from Wednesday until after Veterans Day.

Advancing so many contested nominees so quickly would also mark an important turning point toward finishing the Senate’s year with a return to functionality — if not quite regular order. At a minimum, it would mean that senatorial nuclear winter won’t be setting in early this year because the Democrats were able to help the president put his stamp on the government without upending decades of precedent in their own workplace.

The first two rounds went to Obama with relative ease on Tuesday.

Full story

Judicial Wars: Senate Readies the Next Main Event

The first battle in the newest round of the judicial wars is intensifying today — and is on course to climax next week, when the Senate will decide whether to fill even one of the three vacancies on what’s considered the second most important federal bench in the nation, the District of Columbia Circuit Court of Appeals.

Senate Judiciary Chairman Patrick J. Leahy, D-Vt., and three fellow Democrats on the panel went before the cameras Tuesday morning to tout the virtues of Patricia Millett, a prominent Washington appeals litigator. She is close, but still shy of securing the 60 votes she’ll need to overcome a filibuster by most Republicans, who assert there is not enough work for the court to justify employing more than the current eight among its 11 authorized judgeships.

It’s also the case that the court is now evenly split between presidential choices from each party, so adding judges nominated by President Barack Obama would likely push the ideological mean to the left.

The cloture vote on Millett will come last in a series of six such roll calls arranged Monday evening by Majority Leader Harry Reid. That gives her allies time to search for the votes they need. After New Jersey’s Cory Booker is sworn in Thursday, Millett looks certain to get support from all 55 senators in the Democratic caucus.

Proponents are hoping to find the rest from Republican women and defense hawks. That’s because Millett would be something of a trailblazer on two fronts: She has argued 32 cases before the Supreme Court, more than all but one other women, and she would become by far the most prominent longtime military spouse in the judiciary. Her husband, Robert King, spent 22 years in the Navy before retiring last year — nine years on active duty and 13 as a reservist, with a stint overseas during the Iraq War.

A group of military spouses who are lawyers have been lobbying the Senate on her behalf this week, focusing particular attention on New Hampshire’s Kelly Ayotte (whose husband was an Air Force pilot for a decade), Mark S. Kirk of Illinois (a Navy reservist) and Lindsey Graham of South Carolina (an Air Force reservist).

Two other GOP senators, Lisa Murkowski of Alaska and Susan Collins of Maine, have often voted to advance nominees they eventually oppose, on the grounds that the filibuster is overused.

A top Senate Democratic aide who requested anonymity in order to speak candidly predicted “a big fight” once the D.C. Circuit nominees hit the floor. But the “word is that we and [the White House] are ready to fight hard.” Reid has said that Democrats are focused on getting at least one more judge confirmed to the court, and has hinted at changes to Senate rules if Republicans stage a filibuster.

President Barack Obama and his Democratic allies have signaled that they are concentrating their efforts on getting only one seat on the D.C. Circuit filled this year, and they have concluded Millett holds the best prospects for confirmation.

The president nominated her and two others in June. But Georgetown professor Nina Pillard has run into stiff opposition because of some of her writings about abortion rights. And Robert Wilkins, a federal trial judge in Washington, will not even advance through the Judiciary Committee before Thursday.

October 15, 2013

Justices to Take Up Climate Change Case Created by Gridlock

Divided government gridlock spawned an important new consequence Tuesday. At a time when there’s no chance Congress and the president will agree on any environmental legislation, the Supreme Court agreed to settle a benchmark question about federal powers to control pollution and climate change.

While almost all attention was focused on finding a buy-a-little-time solution to the twin budgetary crises at hand — the shutdown in its third week and the potential for default in a few days — the justices inserted themselves as deeply as ever into a global crisis that’s sure to be around for decades, regardless of whether the federal fiscal house is allowed to crumble.

The court said it would decide whether the Environmental Protection Agency is overstepping its legal authority by planning to regulate greenhouse gas emissions from factories and power plants that are the prime suspects of global warming.

A panel of three judges on the U.S. Court of Appeals for the District of Columbia Circuit ruled unanimously last year that the agency was using its powers properly. Tuesday’s announcement that the Supreme Court will hear six different appeals of that decision means at least four justices are willing to consider the possibility of overruling the lower court.

The court will hear oral arguments early next year and rule by June 2014, four months before the midterm elections. A ruling that stops the EPA from stepping in so aggressively in the absence of legislation could propel environmental policy to an until-now-unexpected position of prominence in campaigns for control of Congress next year. Full story

By David Hawkings Posted at 12:08 p.m.
The Judiciary

September 12, 2013

GOP’s Next Move Against Obama? Judicial Wars, Round II

The judicial wars have not gone away. They’re just on hold for at least another week.

Republicans on the Senate Judiciary Committee were preparing today to invoke their powers to insist on a one-week delay before a vote to advance the nomination of Nina Pillard, the Georgetown University law professor who has emerged as the most contentious of President Barack Obama’s three picks for vacancies on the District of Columbia Circuit Court of Appeals. Full story

June 24, 2013

When Is ‘Recess’ Not Vacation and When Does ‘Pro Forma’ Mean Work?

Of course, the fate of the Voting Rights Act is vitally important to the lawmakers who survive or sweat because of racial bloc politics. And the future of the Defense of Marriage Act is of keen interest to the lawmakers who see their main causes in the trenches of the culture wars.

Their suspense is about to come to an end, with rulings about the constitutionality of both laws due as soon as Tuesday morning and for sure within a week.

However, for every member of Congress, the year’s biggest Supreme Court announcement came Monday. The justices agreed to consider the “recess” argument between the Senate and President Barack Obama. It’s an admittedly arcane dispute over the president’s ability to make appointments to Cabinet offices, regulatory agencies and the courts while Congress is not in session. But it could be the most consequential balance-of-powers case to come before the court since the line-item veto was struck down 15 years ago.

The outcome — oral arguments will happen this fall and a decision would be expected within a year — could redefine legislative and executive branch prerogatives for decades.

Full story

June 17, 2013

High Court Hands Victory to Minority Groups

States may not demand proof of citizenship from people registering to vote, the Supreme Court ruled by a decisive 7-2 today.

The majority signaled it would also be ready to strike down any requirement tougher than what’s set out in the 1993 federal “motor voter” law, which was designed by Congress to simplify registration.

The decision, and the language behind it, is therefore a significant victory for mainstream Democrats, who want to expand access to the polls in part because they’re confident they’ll win most of the new voters. And it’s a defeat for mainstream Republicans, who express intense concern about the potential for election fraud but also know that polls show them doing poorly among groups underrepresented on the rolls — ethnic minorities, immigrants and older people. Full story

June 4, 2013

Obama to McConnell: Let Judicial Wars Begin

Using the Rose Garden as his backdrop and arranging to stand beside his choices for the Washington federal appeals court were two clear symbolic signals from President Barack Obama today that he’s making victory in the judicial wars a top-tier objective for the year.

Top Republicans are making just as clear a commitment to their side of the fight, meaning the threat of a Senate “nuclear” showdown will grow in the months ahead.

Minority Leader Mitch McConnell warned this morning that any assertive, outside-the-normal process to change the rules and do away with judicial filibusters would poison whatever small measure of good will is left in the Senate. It would make it essentially impossible for him to trust anything Majority Leader Harry Reid says in the future.

McConnell did not say so explicitly, but it seems no doubt that Republicans plan to block the nominees Obama put forward. And the president made clear he knows what to expect.

“What I’m doing today is my job. I need the Senate to do its job,” he said. “I recognize that neither party has a perfect track record here,” he added, but “what’s happening now is unprecedented. For the good of the American people it has to stop.” Full story

May 21, 2013

Truce in Judicial Wars: D.C. Court to Get Democratic Pick

Updated 9:35 p.m. | The Senate is about to put the first new judge on the D.C. Circuit Court of Appeals in seven years.

Majority Leader Harry Reid said this afternoon he intends to push for a vote by the end of the week confirming Sri Srinivasan to one of the four vacancies on that bench. Minority Leader Mitch McConnell signaled he wouldn’t stand in the way of such a move,  but needed to get final sign-off from his GOP colleagues.

The D.C. Circuit is considered the second-most-important court in the federal system, because it hears so many cases involving the regulatory actions of federal agencies. Four justices of the Supreme Court were promoted from that appellate courthouse. But, until now, the Republicans have refused to seat anyone new, which has had the effect of giving the nominees of GOP presidents a 4-3 majority.

The GOP looks to be relenting now because Srinivasan, the principal deputy solicitor general, has impeccable credentials and a short paper trail, which has made it tough for either side to be certain of his future jurisprudence, and because another judicial battle now could spark a “nuclear option” move by the Democrats to prevent dilatory death for future judicial choices.

Republicans are already signaling, though, that they will prevent any of the remaining vacancies from getting filled while President Barack Obama is in office, on the grounds that the D.C. Circuit is not busy enough to justify 11 full-time judges.

Update: Reid filed a motion Tuesday intended to get Srinivasen’s nomination on the  floor. He’ll need 60 votes to limit debate, or invoke cloture. That vote is likely to occur Thursday.

Senate Republicans said they were willing to allow a vote after the Memorial Day recess but Reid pressed the issue, saying he wants to deal with the nomination this week, even if he has to delay the start of the recess.

May 16, 2013

Obama Says ‘Check’ to GOP in Confirmation Chess Match

The most important Senate committee vote Thursday on a top-tier White House nomination was neither the party-line ballot advancing Thomas E. Perez one step away from becoming Labor secretary, nor the parallel 10-8 vote advancing the choice of Gina McCarthy as EPA chief to the Senate floor.

The day’s most consequential roll call was at Senate Judiciary, where all eight Republicans joined the 10 Democrats in endorsing Sri Srinivasan for a seat on the D.C. Circuit Court of Appeals.

Such unanimity is an extraordinary and unmistakable sign that GOP conservatives are making a tactical retreat in the judicial wars — one that may influence the filling of a future seat on the Supreme Court.

Even as those Republicans contemplate filibusters designed to stop Perez or McCarthy from taking seats in the president’s Cabinet — where they could shape policy for three and a half years at most — they’re preparing to concede their side’s clear ideological advantage at the country’s second-most-important federal courthouse. And they look ready confirm someone who might hold sway over social and regulatory policy for three decades or more.

A lopsided confirmation vote by the full Senate, which now looks inevitable and could come within a month, would boost the odds that President Barack Obama turns to Srinivasan should a vacancy on the top court come open in the next three years. Four of the current high-court justices stepped up from the D.C. Circuit, which has unusual influence over federal policy because it hears constitutional appeals of most decisions involving government agencies and departments based in the capital.

Full story

March 25, 2013

Gay Marriage Cases Offer Perils for GOP — Win, Lose or Draw

For gays and lesbians, the marriage cases being debated at the Supreme Court this week hold the potential for either a landmark expansion or a painful contraction of their civil rights, some narrower changes, or really nothing meaningful at all. But for members of Congress — Republicans, in particular — their political lives will be shaped profoundly by whether the justices go big, go small or essentially stay home on the issue.

The case with the broader constitutional, as well as political reach, being argued Tuesday challenges the California prohibition on same-sex marriage known as Proposition 8. The arguments Wednesday, about the constitutionality of the law denying federal benefits to legally married gay people, hold additional import for Congress as an institution and for every Republican running in 2014. This is especially true for those who voted to enact that law 17 years ago, those who pressed the House to take the legal lead in the current case, and those with statewide or national dreams.

A ruling upholding Proposition 8 would provide the most culturally conservative wing of the GOP a huge shot of momentum for its goal of keeping the party the bulwark against attacks on marriage as an exclusively heterosexual institution. It would also stand to trigger a wave of ballot initiatives on both sides of that issue, complicating the lives of dozens of congressional candidates — especially in California, where advocates of lifting the ban will be counted on to ask voters to do what the court did not. Full story

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