Editorials and Opinion
[Editorial] Will Trump try to stack the courts? (San Francisco Chronicle [CA], 01/06/17)
"It’s no mystery why nearly one in eight federal bench slots is empty. Republicans have refused to vote on dozens of President Obama’s nominees .... The vacancies are nearly double the amount that Obama inherited from George W. Bush. The unfilled posts have created a logjam .... By Senate custom, court nominees must pass muster with home state senators. In California’s case this process is especially weighty. The federal appeals court in San Francisco has four vacancies, and six district judgeships are empty across the state. ... Given this “blue slip” process of vetting, the state’s senators, Dianne Feinstein and Kamala Harris, can block a White House nomination. ... During the Bush administration, the differences were negotiated"
COMMENTARY: Children in power (Greenville [SC] News, 01/06/17)
Joe Cunningham, Guest Columnist: McCain refuses to break rank with Republicans, declining to afford Judge Merrick Garland, President Obama’s nomination to fill the late Justice Scalia’s seat, so much as a confirmation hearing. But it was never just about President Obama. Running up to the election, on Oct. 17, 2016, McCain vowed to block anyone Hillary Clinton would nominate should she win. Anyone.
In the real world, this behavior is expected to occur only within children’s play areas.
Sessions should be disqualified for attorney general post (The Hill, 01/06/17)
Todd A. Cox: Sessions did not fill out his application fully or truthfully.
In the questionnaire Sessions submitted to the Senate Judiciary committee on Dec. 9, he omitted information on hundreds of communications, from speeches to interviews to articles. In some cases, he included a notation that “no transcript or clips” were available, despite the fact that records were easily findable online.... The questionnaire also has another simple, yet very important, section: “list the ten most significant litigated matters which you personally handled.” ... the truth is he did not litigate these civil rights cases.... Grassley is proposing that Sessions shouldn’t be held to the same standards Sessions himself demanded of nominees
Did Jeff Sessions block integration of south Alabama federal courts? (AL.com [AL], 01/06/17)
John Archibald column: Sessions in the latter 1990s - for the entire second term of President Bill Clinton - was able to keep a federal judgeship in Mobile vacant, rather than to allow it filled with someone he found objectionable.
And some say Sessions - who has been hounded by decades-old comments that have been seen as racist - wasn't just blocking nominees of a different political stripe. Those involved say he blocked the integration of the federal bench in the Southern District of Alabama.
Birmingham lawyer John Saxon was part of a Bill Clinton patronage committee that decided it was time to integrate the federal courts in Mobile. The Northern and Middle districts had already seen black judges and magistrates, but the Southern District remained lily white.... Saxon said the group sent name after name of candidates - at least two judges and three lawyers - to the White House for vetting. But Clinton's people hit a wall every time. It was Sessions - then a still-new junior senator but a member of the Judiciary Committee. He opposed every one of them.
"Sessions told the White House he couldn't accept any of those people," Saxon said.... He said he asked Sessions to "tell us the name of any African-American anywhere in the state that you find acceptable."
It's not as if there were no qualified candidates. ... Sessions didn't budge .... "We gave him the opportunity to put forth the names of African Americans, but he wouldn't do it," Saxon said. "It was the single most frustrating thing I've ever done."
Mitch McConnell's Political Moves Are Appalling, But Democrats Could Learn from Them (Esquire, 01/05/17)
Jack Holmes: The Lord of Obstruction had a message for Senate Democrats on Wednesday: No obstructing unless I'm the one doing it. Senate Majority Leader Mitch McConnell, who, after Antonin Scalia died with nearly a year left in President Obama's term declared that he would refuse to give any Supreme Court nominee a hearing, held a press conference following Minority Leader Chuck Schumer's pledge to contest Donald Trump's Supreme Court nominations. McConnell had a stern message for his opponents in The World's Greatest Deliberative Body: "The American people simply will not tolerate" any attempt to block SCOTUS appointees. The cynicism here is breathtaking. ... To be clear, McConnell's rhetoric here was disingenuous.... Republicans embarked on an unprecedented campaign of obstruction, particularly with regard to judicial appointees,... If Democrats are going to survive, they need to ditch the weird worshipping of civility and learn to punch someone in the jaw. The Supreme Court nomination process—and the hearings for cabinet appointees like Jeff Sessions—would be a good place to start throwing a few jabs.
Op-Ed: Jeff Sessions: An attorney general who’s all in for prosecutors (Los Angeles Times, 01/05/17)
Mark Oppenheimer: Few of Trump’s nominees would bring to their jobs a fixed ideology as poisonous as what Sessions would bring to the Department of Justice. As attorney general, Sessions would oversee federal prosecutors and, most likely, would have a say in whom the president appoints to the federal bench. From his perch he could further his conviction that “prosecutorial misconduct” is nothing more than slander. ... What sets him apart is his belief that prosecutors are at a disadvantage, indeed are something of an endangered species, overrun by the vicious defense bar.... Sessions’ complaints are often leveled against nominees who are people of color.
Before Susan Oki Mollway, an Asian American woman, was confirmed to the federal judiciary in 1998, Sessions worried that based on her “background,” including her “activities with the ACLU in Hawaii,” she could be expected to have the “liberal, activist, anti-law enforcement mentality” typical of the 9th Circuit, for which she was being considered. Frederica Massiah-Jackson would have been the first female African American federal judge, but she eventually withdrew her nomination. “I had a feeling, an intuition, that there was something unhealthy about this nominee, that there was perhaps an unstated bias against prosecutors and law enforcement,” Sessions said about her.
Commentary: Why Burr and Tillis should oppose Trump nominee for Attorney General (Progressive Pulse [NC], 01/05/17)
Rob Schofield: Sessions will go before Thom Tillis, Richard Burr and his other colleagues in the U.S. Senate — the same Senate that refused to consider the Supreme Court nomination of Merrick Garland — to consider whether he is qualified to be the nation’s top law enforcement officer.
In response, an array of civil rights and civil liberties groups have been marshaling a campaign to oppose the nomination. One of the best summaries of the countless problems with the Sessions nomination comes from the American Civil Liberties Union, a group that as a matter of organizational policy doesn’t even take an official position on nominees.
What will Feinstein, Harris do on judicial nominees? (Sacramento Bee [CA] , 01/05/17)
Bill Whalen, Hoover Institution: Traditionally, the Senate Judiciary Committee gives “blue slip” privileges to each nominee’s home-state senators. Unless both senators support the pick, the nomination won’t go forward. That gives Dianne Feinstein, the ranking Democrat on Judiciary, and new Sen. Kamala Harris extraordinary sway on California judicial nominees.
[Editorial] Fill the courts: Federal vacancies delay justice for all (Pittsburgh Post-Gazette [PA], 01/05/17)
Editorial Board: the four vacancies in the U.S. District Court for the Western District of Pennsylvania are the most anywhere. Across the nation, however, there are 112 vacancies, the highest profile being the empty seat on the Supreme Court left by the Feb. 13 death of Justice Antonin Scalia. There are also 86 vacancies in district courts, 17 in circuit courts of appeals, six in the Court of Federal Claims and two in the Court of International Trade.
Worse, only 59 candidates have been nominated for the vacancies, meaning there would be no quick way to fill nearly half of those seats even if the partisan bickering were to cease immediately. Forty-one courts have what are called “judicial emergencies”.... None of that takes into account what some observers believe is a pressing need for additional judges in parts of the country.... In Pennsylvania, Sens. Pat Toomey, a Republican, and Bob Casey, a Democrat, are known for collaborating on the selection of judicial nominees — and they plan to continue their collaboration. Mr. Casey’s office said the nominees are in limbo because the GOP leadership wouldn’t bring them to a vote.
Vacancies slow cases, dragging out justice for victims and hampering the fortunes of companies involved in contract or intellectual property disputes.
Democrats Can Easily ‘Win’ Coming SCOTUS Battle if They Play Their Cards Right (Mediaite, 01/05/17)
Opinion by John Ziegler: As a conservative, the toughest part about not supporting Donald Trump during the campaign was that there is open seat on the Supreme Court .... The first miscalculation on the right is the idea that, as McConnell seems to be doing, Republicans can remotely count on an uprising of public outrage if Trump is denied the ability to get anyone he wants appointed to the Supreme Court. This is flat-out delusional on multiple levels.... It will be very difficult for Trump to claim the moral high ground in any Supreme Court confirmation battle because only 46% of Americans voted for him and his own party just made it clear that living with eight justices is no big deal.... Many on the right think that if Schumer blocks any Trump nominee from getting an up or down vote that the GOP could simply “nuke” the filibuster.... with Orrin Hatch, Lindsay Graham, and John McCain almost certain “no” votes on such a move, this tactic seems far easier said than done. At the very least, Republicans would have to wait for Democratic obstructionism to become so extreme and obvious that the “nuclear” option is seen as a last resort. This requires time, probably lots of it, ... perhaps the most important thing Schumer would accomplish with a protracted fight on this turf would be that Trump would eventually tire of it and fall back to his natural instincts to negotiate a settlement.
Will Sessions Follow the Long Tradition of Recusal? (People For blog, 01/05/17)
"As Sen. Richard Blumenthal noted in a letter to Sen. Sessions, all six sitting Senators, both Democratic and Republican, to be nominated and confirmed to cabinet level positions since 1960 have declined to cast a recorded vote on their own nominations.... For Sessions to vote for himself to become Attorney General, he will have demonstrated a frightening unwillingness to avoid situations that are, or appear to be, self-serving. And he’d be doing so as a means to ascend to a position where that unwillingness is disqualifying."
Jones: NAACP takes stand against Sessions with a sit-in (Philadelphia Daily News [PA], 01/04/17)
Opinion by Solomon Jones: the NAACP continues its fight against a man who is poised to take charge of the Justice Department during a time of turbulence between communities of color and law enforcement.
Now, more than ever, black people need fairness from our criminal justice system, and the numbers show we still are not receiving it.... investigations forced consent decrees that brought about change.
I don't expect such investigations will be conducted if Sessions is confirmed as attorney general.
That's why I support the NAACP's decision to sit down for change.
I can only hope that the rest of us will decide to stand up.
HOW TO STOP A TRUMP SUPREME COURT NOMINEE (New Yorker, 01/04/17)
Jeffrey Toobin: Trump will soon announce his nominee to replace Antonin Scalia on the Supreme Court. Once he does, we’ll know within just a few hours whether there is any chance that the Senate will reject his choice. That’s because the politics of Supreme Court appointments operates at the speed of the modern news media, .... Kennedy knew that the conventional wisdom in Washington congealed quickly. If Bork, a judge on the D.C. Circuit and a former Solicitor General and a professor at Yale Law School, was seen as a shoo-in, there would be little chance to build a case against him. Likewise, McConnell knew that he might well lose a debate about the qualifications of the person Obama named to the Court. (Indeed, Garland’s pedigree, which includes two decades on the D.C. Circuit, is impeccable.)... Democrats will have to make a fast decision after Trump names his choice. (If they’re smart, they’re making up their minds about various candidates right now.) If they greet Trump’s nomination with politely stern vows of serious consideration and rigorous questioning at a hearing, confirmation will be nearly a certainty. If, instead, the senators break out the incendiary rhetoric of their late colleague from Massachusetts, then the new President may have a fight on his hands.
Mitch McConnell Says Americans Won’t Tolerate Democrats Blocking Supreme Court Nominations: He blocked the president’s own high court nominee for 293 days. (Huffington Post, 01/04/17)
Cristian Farias: Senate Majority Leader Mitch McConnell (R-Ky.) issued a warning to Democrats on Wednesday, one day after the Supreme Court nomination of Merrick Garland expired without any Senate action: Don’t consider staging a similar blockade on any of President-elect Donald Trump’s high court nominees.
“I think that’s something the American people simply will not tolerate and we’ll be looking forward to receiving a Supreme Court nomination and moving forward on it,” McConnell told reporters.... Garland ... was as mainstream a candidate as President Barack Obama could have offered. McConnell’s admonition that the American public may not put up with prolonged Democratic obstruction is curious in light of his own plan to not lift a finger on any of Obama’s nominees
Where were you when we needed you, Deval Patrick? (Boston Globe, 01/04/17)
Joan Vennochi: Patrick is speaking out against Senator Jeff Sessions, Trump’s choice for attorney general. In a letter to the Senate Judiciary Committee, the former governor of Massachusetts — and the first African American to win election to that position in this state — called Sessions “the wrong person to place in charge of our justice system.”
Patrick has the passion and experience to back up his opposition to Sessions. In 1985, the then-young Harvard Law School graduate was part of a team of NAACP lawyers who defended three black civil rights leaders against voter fraud charges brought by a white federal prosecutor named Jefferson Beauregard Sessions. Improbably, the NAACP lawyers prevailed. Describing the case as “a cautionary tale,’’ Patrick writes, “I believe it demonstrates what can happen when prosecutorial discretion is unchecked, when regard for facts is secondary to political objectives. What can happen is that the rule of law is imperiled. In a republic based on law, this is not the kind of risk any of us should accept in our attorney general.”
Obstruct and delay Trump: Opposing view: Democrats must adopt the GOP’s scorched-earth philosophy. (USA Today, 01/04/17)
David Faris: Senate Republicans sharply escalated the use of filibusters to delay legislation, Cabinet appointments and judicial nominees.... Senate Republicans disregarded the clear intent of the Constitution by refusing to hold hearings on Merrick Garland, Obama’s nominee to fill a vacant Supreme Court seat. With Trump’s victory in November, the GOP has stolen the court’s all important swing vote.... Democrats must therefore adopt the GOP’s scorched-earth philosophy. No votes for Cabinet picks or judges.
Editorial: Julien Neals should be a federal judge (Record [NJ] , 01/04/17)
"[W]hat happened last year to President Barack Obama’s Supreme Court nominee Merrick Garland – by all accounts, a qualified, centrist jurist who wasn’t even granted a hearing – was without precedent.
Garland’s time in nomination limbo was small compared to the experience of another Obama court nominee – Julien Neals, .... Booker has described Neals as one of the “most impressive people” he has met in professional life and said that Neals’ “skill, aptitude, and unique perspective are needed on the federal bench now more than ever.” Neals and Edward Stanton III, a U.S. attorney from Tennessee, both of whom are black, have waited the longest among nominees who have come out of committee.... New Jersey federal judges are needed more than ever since they carry a workload of roughly 700 cases per year. The failure to fill that vacancy says much about our politics today, and provides evidence of why our judicial system is not working as efficiently as it should."
Jeff Sessions And The Extreme Anti-Immigrant, Anti-Muslim Lobby (Right Wing Watch, 01/04/17)
Miranda Blue: Thirty years after he was rejected for a federal judgeship because of a history of alleged racist statements and hostility to civil rights groups, the Senate will again have a chance to review Sessions’ record. That review should include Sessions’ close associations with advocacy groups that are hostile to civil rights and that promote anti-immigrant and anti-Muslim sentiment.
Conservatives Should Think Twice before Supporting Jeff Sessions (National Review, 01/04/17)
Michael Tanner, Cato Institute: there are red flags in Sessions’s record that should worry those who believe in limited government and individual liberty.
For instance, he sharply departs from the growing bipartisan consensus on criminal-justice reform. Leading conservatives and libertarians, from former Texas governor Rick Perry to Senators such as Ted Cruz and Rand Paul to the Koch brothers, have embraced the need to make our criminal-justice system more equitable, pushing for a greater emphasis on rehabilitation and a reduction in the incarceration of minor non-violent offenders.
Sessions has not been among them. He was a leading opponent of the Sentencing Reform and Corrections Act, which reduced federal sentences for some non-violent drug offenses and other crimes, and has long been one of the most ardent drug warriors in Congress. At a time when 32 states have legalized medical and/or recreational use of marijuana, Sessions told a Senate hearing last April that, “we need grown-ups in charge in Washington to say marijuana is not the kind of thing that ought to be legalized, it ought not to be minimized, that it’s in fact a very real danger.” His opposition to state legalization measures promises to put the Justice Department in conflict with conservative principles of federalism.
Moreover, as George Will has pointed out, Sessions also opposes the reform of asset-forfeiture laws.... Just as worrying, Sessions generally opposes Justice Department supervision of local police departments accused of racial abuses. ... Elsewhere, he has defended the ability of the NSA and other federal agencies to spy on Americans. ... Finally, he has opposed legislation protecting the jobs of federal whistle-blowers and shield laws protecting journalists from having to disclose their sources.
Sessions Has No Problem With Civil Asset Forfeiture -- And That's A Problem (Forbes, 01/03/17)
George Leef: Unfortunately, it seems that Donald Trump’s choice for Attorney General, Senator Jeff Sessions of Alabama, is among that small minority of Americans who reflexively support civil asset forfeiture because it supposedly helps fight crime. At least, those were his thoughts during a Judiciary Committee hearing on civil asset forfeiture in May 2015.... It is depressing to think about the prospect of having a man as the Attorney General who doesn’t seem to care whether people like Russ Caswell, Lyndon McLellan, or Rhonda Cox are treated unjustly, so long as officials say they’re mere collateral damage in their great war on crime. The nation’s top law enforcement officer ought to be deeply concerned about the severe damage civil asset forfeiture inflicts on innocent people. Sessions, however, brushes these and other victims aside because he is certain that the police almost always target people who are guilty of something.... The incentives under civil asset forfeiture are bad and it’s distressing that Sessions doesn’t see them.
Reshaping the courts: Donald Trump is poised to paint America’s judiciary red, Democrats may soon lose their dominance in district courts (Economist, 01/03/17)
"Trump’s quest to hold back liberal-leaning courts faces potential stumbling blocks. With Republican intransigence over Merrick Garland, Mr Obama’s Supreme Court pick, leaving a bad taste in Democrats’ mouths, the minority party is likely to use any and all obstructionist tactics available to them under obscure Senate rules to delay or thwart votes on judicial nominees. One possibility is that Democrats may weaponise the norm of senatorial courtesy, an unwritten but well-entrenched principle preventing the Senate from acting on any nominee who does not enjoy the support of both senators from his or her home state.
This courtesy, in one form or another, “has persisted since the presidency of George Washington”, according to Tonja Jacobi, a law professor at Northwestern University."
Jeff Sessions says he handled these civil rights cases. He barely touched them. (Washington Post, 01/03/17)
Opinion By J. Gerald Hebert, Joseph D. Rich and William Yeomans: Attorney general nominee Jeff Sessions is trying to mislead his Senate colleagues, and the country, into believing he is a champion for civil rights. We are former Justice Department civil rights lawyers who worked on the civil rights cases that Sessions cites as evidence for this claim, so we know: The record isn’t Sessions’s to burnish. ... In the questionnaire he filed recently with the Senate Judiciary Committee, Sessions (R-Ala.) listed four civil rights cases among the 10 most significant that he litigated “personally” ... We can state categorically that Sessions had no substantive involvement in any of them.
Jeff Sessions’ Relationship With Breitbart, ‘The Platform’ For The White Nationalist Alt-Right, Should Be Disqualifying (Huffington Post, 01/03/17)
Marge Baker, People For the American Way: Unfortunately, Sessions’ attitude toward civil rights seems not to have changed in the decades since he was accused of calling civil rights groups “communist-inspired” and “un-American.” Nowhere is this clearer than in his relationship with Breitbart News, the far-right outlet that presents itself as a platform for the so-called Alt-Right, a white nationalist faction that has rebranded itself for the internet age.
Confirm Judges Horan and Baxter for the Western District of Pennsylvania (The Hill, 01/03/17)
Carl Tobias: On July 30, 2015, President Barack Obama nominated Susan Paradise Baxter, who has served as a Magistrate Judge in the Western District of Pennsylvania for more than twenty years, and Marilyn Horan, who has served as a Court of Common Pleas Judge in Butler County since 1996, for vacancies on the Western District. The jurists are highly qualified, mainstream nominees, who possess the strong support of Pennsylvania Sens. Bob Casey (D) and Pat Toomey (R). The Senate Judiciary Committee reported both on Jan. 28 voice votes with no dissent. Nonetheless, they languished on the floor since then, primarily because Republican leaders refused to grant them final debates and ballots. Since Judges Baxter and Horan are experienced, moderate nominees and the Western District of Pennsylvania requires all of its vacancies filled, the Senate must expeditiously arrange their confirmation debates and votes.... Democratic senators proffered analogous requests on nineteen remaining district nominees who required final votes, but other members objected.
Delayed Senate action a bad precedent (News-Gazette [IL] , 01/03/17)
Dennis Held, Letter to the Editor: It appears that the U.S. Senate has successfully shirked its constitutional duty by denying President Barack Obama any "advice and consent" concerning his nomination to the U.S. Supreme Court.