Editorials and Opinion
Letter | 'Great national significance'? (Courier-Journal [KY] , 06/02/16)
James McMillin: "Senator McConnell should take a sip of the political medicine he offers to others in his newly released autobiography, "The Long Game." Quote: “On issues of great national significance, one party should never simply force its will on everybody else.”... This is painfully true in terms of ... (5) delaying federal judicial appointments of a sitting president, 59 more than just one for the Supreme Court; and (6) refusing to even allow Senate debate on Obama-nominated Supreme Court nominee Merrick Garland, which might be the ultimate sulk by the Senate majority Leader."
Editorial: Welcome back, Sen. Grassley (Quad City Times [IL,IA] , 06/02/16)
"The Senate Judiciary Committee chairman has, for months, been under constant election-year fire for blocking President Barack Obama's Supreme Court nominee, Merrick Garland. We've pulled no punches when criticizing Grassley's willingness to join the absurd Republican campaign to delegitimize Barack Obama's presidency."
Basu: All of America loses by leaving court vacancy open (Des Moines Register [IA], 06/02/16)
Rekha Basu column: "A couple of former White House counsels — one to Bill Clinton and Barack Obama, one to George W. Bush — came to Des Moines, Iowa, last week to warn about not having a fully functioning U.S. Supreme Court. It had been 77 days since Obama nominated Merrick Garland to replace the late Justice Antonin Scalia. Yet Iowa's Charles Grassley, heads of the U.S. Senate Judiciary Committee, refuses to hold hearings on the nominee....In 2010, speaking on a Federalist Society podcast was David Stras, a Minnesota Supreme Court justice on Donald Trump's shortlist of Supreme Court nominees if he's elected. Stras expressed support for Garland. "President Obama would not be hesitant to nominate someone like Judge ... Garland, who is acceptable to Republican senators and would not create a bitter confirmation battle.""
Why the four-four Supreme Court split is bad for Arkansas (Arkansas Times, 06/02/16)
Arkansas Blog By Max Brantley: "People for the American Way, the progressive interest group, has delivered a briefing on why the Republican roadblock to filling a vacancy on the U.S. Supreme Court until next year is bad for the country and, specifically, Arkansas.... Arkansas's two senators, John Boozman and Tom Cotton, are adamantly opposed to allowing an Obama nomination to fill the seat, though the roadblock is unprecedented."
The Senate Republicans, Merrick Garland and the Lessons of History (Huffington Post, 06/02/16)
Prof. Geoffrey R. Stone: " Although everyone with even a modicum of expertise agrees that Chief Judge Garland is a highly-qualified, highly-respected, and moderate nominee, Senate Republicans have adamantly refused even to consider his nomination.... In a new scholarly article, law professors Robin Kar and Jason Mazzone have taken a deep dive into the history of Supreme Court nominations to test the plausibility of the Senate Republicans’ purported “justification” for their action. Not surprisingly, they find that the Senate Republicans’ alleged “justification” is completely bogus. It is, in short, exactly what it appears to be — a cynical and unconscionable sham.
What Kar and Mazzone found is that over the entire course of American history there have been 103 instances (prior to this one) in which an elected president faced a vacancy on the Supreme Court prior to the election of the next president. They found that in every one of those 103 instances, the president nominated and, with the advice and consent of the Senate, appointed the new Justice. There has not been a single exception to this practice in all of American history. And this is true even when, as in the current situation, the vacancy arose during an election year."
City's businesses should support a vote on Obama's Supreme Court nominee: From entrepreneurs to big companies, we need government to put process over politics (Crain’s New York Business, 06/01/16)
OP-ED By Ken Biberaj, chairman of the board for the Manhattan Chamber of Commerce: "Unfortunately, the Senate’s failure to even hold hearings on the president's nomination is creating a profound sense of uncertainty that threatens to erode the climate for risk-taking and investment.... The court's inability to rule on cases important to business is delaying decisions, leading to divergent state regulations and uncertainty at the national level. From questions related to immigration, patent infringement, the Affordable Care Act or standards on arbitration costs, a host of topics are ready for their day in court but might not get one.... The process for judicial confirmations in general has already slowed down to such a dangerous degree that we are damaging one of our biggest competitive advantages as a nation: a high-functioning judicial system that can be relied upon to uphold contracts, enforce laws and create an environment of fairness that allows business to prosper."
June 2016: Judicial Vacancies Keep Rising (Federal Bar Association's Washington Watch, 06/01/16)
Bruce Moyer: "The tempest over the single vacancy on the Supreme Court has obscured the increase in vacancies on the federal district courts, where most federal judicial work gets done. And yet the pace of judicial confirmations of district court nominees has slowed to a trickle. ... there were less than half as many Article III vacancies—only 42—when the current Senate took office in January 2015. Since that time, the Senate has permitted that number of judicial vacancies to more than double.
Considerable numbers of these vacancies at the district and circuit levels are considered “emergencies” by the Judicial Conference .... , twenty FBA chapters in five states—comprising Alabama, Florida, New York, Tennessee and Texas—wrote to their home-state Senators ... 'Vacancies have an especially significant impact on litigants in the federal courts, as well as the broader economy, as individuals and corporations must wait longer to have their day in court. Vacancies and delay add greater costs to already high litigation expenses. Those of us who try federal cases know the financial impact of continuances of cases that can extend for months, even years, without decision, due to insufficient bench capacity. For business clients, these costs get passed on to customers. And when the United States is a party to the case, it means that the public is paying that higher tab.'"
My view: A divided Supreme Court hurts America (Deseret News [UT] , 06/01/16)
Ben Aldana: "Final review of constitutional questions by the Supreme Court is essential, because for the Constitution to be effectively relied upon, it must have only one current interpretation.... having 13 federal circuit courts, and 50 state supreme courts, functioning as mini-U.S. Supreme Courts throughout our nation, is precisely what the Constitution’s author’s intended to prevent when they replaced the Articles of Confederation. This intention was expressed by declaring within the Constitution itself that it shall be “supreme law of the land.” How can there be more than one supreme law of the land?"
Time for GOP to stop playing games with judges | Letter (Express-Times [PA], 06/01/16)
Jodi Hirsh: "I'd love to have some of the Kool-Aid Blake Marles must have been drinking when he wrote the May 18 column, "Toomey has good record on federal judge appointments."
I'm not sure which Sen. Pat Toomey to whom he's referring, but clearly it's not the one who is currently refusing to fulfill his constitutional duty by holding a hearing for Supreme Court nominee Judge Merrick Garland, or the one who held up the eminently qualified Judge Luis Felipe Restrepo for the Eastern District of Pennsylvania for more than a year. Or the Toomey who who has not returned a blue slip for Rebecca Haywood for the Third Circuit Court of Appeals, or the one who hasn't been able to get committee votes on Judges Susan Baxter and Marilyn Horan, two exceptionally qualified Pennsylvania nominees who have been waiting since December."
Garland deserves a fair hearing, Sen. Toomey (Philadelphia Daily News [PA], 05/31/16)
Opinion by Craig Green: "it is flatly irresponsible for Toomey to deny Garland a hearing or vote until the next president takes office in January 2017, or later. Toomey supports this long wait for the political goal of maintaining a conservative majority on the court, and that is unprecedented. It is bad enough that an eight-justice court cannot resolve the country's hardest legal problems for a year or longer. However, the long-term impact of Toomey's position for future nominees could be much more destructive. No Supreme Court nominee in history has been rejected - much less denied a hearing - simply because a Senate majority used its muscle to demand nominees that fit its ideological preference.... Toomey suggests that Garland's decisions have not always produced the political results he would prefer, but that is not how our courts or our senators are supposed to work."
EDITORIAL: Merrick Garland and our divided U.S. Supreme Court (Anniston Star [AL] , 05/31/16)
"Republican leaders in the U.S. Senate are standing firm: no hearing or confirmation vote on Supreme Court nominee Merrick Garland until after someone other than President Barack Obama takes over the Oval Office.
That decision — shortsighted, bullheaded, disruptive — is having ramifications.
The biggest is on the court itself. An eight-justice Supreme Court still operates, but its rulings are marked with an asterisk"
Letter: A fabricated story from a U.S. senator (Salt Lake Tribune [UT], 05/30/16)
Jason Tiscione: "On May 26, the Deseret News published an op-ed by Sen. Orrin Hatch: "My Meeting With Supreme Court Nominee Eric Garland." He described meeting with Garland, and how it hadn't changed his stance on blocking nomination hearings. Strangely, his op-ed appeared on the newspaper's website at midnight, at least six hours before this supposed meeting could have happened.
Perhaps it remains to be seen whether Sen. Hatch is a time traveler, or simply a mendacious liar with a seat in the Senate Judiciary Committee .... the Deseret News published a fabricated story written by a sitting U.S. senator."
ESSAY: THE GARLAND AFFAIR: WHAT HISTORY AND THE CONSTITUTION REALLY SAY ABOUT PRESIDENT OBAMA’S POWERS TO APPOINT A REPLACEMENT FOR JUSTICE SCALIA (NYU Law Review, 05/30/16)
Profs. Robin Kar and Jason Mazzone: "There have been 103 prior cases in which—like the case of President Obama’s nomination of Judge Garland—an elected President has faced an actual vacancy on the Supreme Court and began an appointment process prior to the election of a successor. In all 103 cases, the President was able to both nominate and appoint a replacement Justice, by and with the advice and consent of the Senate. This is true even of all eight such cases where the nomination process began during an election year. By contrast, there have been only six prior cases in which the Senate pursued a course of action that—like the current Republican Plan—deliberately sought to transfer a sitting President’s Supreme Court appointment power to a successor. In all six such cases, there were, however, contemporaneous questions, not present here, about the status of the nominating President as the most recently elected President. The historical rule that best accounts for senatorial practices over the entirety of U.S. history is thus the following: While the Senate has the constitutional power to provide advice and consent with respect to particular Supreme Court nominees and reject (or resist) particular candidates on a broad range of grounds, the Senate may only use this power to deliberately transfer a sitting President’s Supreme Court appointment powers to a successor in the highly unusual circumstance where the President’s status as the most recently elected President is in doubt.... Senate Republicans should rethink their plan so as to avoid these newly exposed historical, pragmatic and constitutional risks."
EDITORIAL BOARD: Who deserves praise and criticism this week in northern Utah? (Standard-Examiner [Ogden, UT], 05/30/16)
"THUMBS DOWN: To U.S. Sen. Orrin Hatch, who penned an op-ed about meeting Supreme Court nominee Merrick Garland but reaffirming his belief that the Senate needed to delay hearings on a new justice — before meeting with Garland.... Essentially, Hatch crafted a piece of fiction. His intransigence has become an embarrassment."
Guest columnist: Sens. Burr and Tillis and the politics of obstruction (Asheville Citizen-Times [NC] , 05/28/16)
Gailya Paliga, president, NC National Organization for Women: "Burr and Tillis are refusing to allow hearings on the U.S. Supreme Court nomination. ... Retired N.C. Supreme Court Justice Patricia Timmons-Goodson was nominated on April 28 to fill a longtime vacancy of a U.S. District judge position in the Eastern District of North Carolina. Burr vowed to block her the same day. ... This federal court seat has been empty for more than 10 years. This vacancy was elevated to judicial emergency status years ago. Burr has never explained why he did not submit May-Parker’s name for consideration. Now, Burr is blocking another extremely well qualified African-American women from filling this vacancy.
Burr has caused and continues to cause the federal courts in North Carolina to be short-handed."
EDITORIAL: Sen. Hatch… meet Judge Garland (Manhattan Mercury [KS], 05/27/16)
"It was just a little accident of timing, but it revealed how little progress Democrats have made in advancing the nomination of Judge Merrick Garland to the U.S. Supreme Court. The mistake also reveals the sham that is the Republican show of courtesy to Judge Garland. The mistake? An op-ed column by Sen. Orrin Hatch, a Utah Republican and former chairman of the Judiciary Committee, that was published in Salt Lake City’s Deseret News."
The "Thurmond Rule" and other advice and consent myths (Brookings, 05/25/16)
Russell Wheeler: "Grassley’s description of the paucity, since 2000, of presidential election year confirmations after the summer recesses obscures the amount of election-year confirmations prior to the recesses. The Senate confirmed from four to eight circuit judges in each of those four years (2000, 2004, 2008, and 2012), compared to only one so far in 2016. And it confirmed, before the recesses in those years, 27, 24, 14, and 28 district judges, compared to only six so far in 2016. (And, any Thurmond “rule” notwithstanding, in those four years the Senate confirmed 36 district judges after the recesses—not to mention ten post-August circuit confirmations in 1984, 1988, and 1992, during and immediately following Thurmond’s chairmanship.).... Those examples should motivate the full Senate to consider at least the 21 district and one circuit nominees who have had hearings. Doing so could help close the yawning gap between the 114th Senate’s record of 18 total confirmations and those of its recent predecessors—72 in 1999-2000 when Republicans controlled the Senate and 68 in 2007-08, when Democrats did.... McConnell’s comparison is akin to saying that Congress treated a hypothetical President X fairly by providing slightly more hurricane relief funds than it provided President Y, even though President X’s term saw twice as many hurricanes as did President Y’s.
The judicial analogy to natural emergencies is vacancies.... The question, in other words, is not fairness to a president but fairness to litigants and judges. Section 2, Article 2 does not terminate the Senate’s “advice and consent” function once it confirms the same number of nominees as those of a prior president, or, despite any “Thurmond Rule,” once it leaves town in July for a month and a half of party conventions and presidential election year campaigning."
CAN SPLIT GOVERNMENT WORK? (Moderate Voice, 05/25/16)
ROBERT A. LEVINE, TMV Columnist: "The Senate’s refusal to confirm Obama’s candidate to replace Antonin Scalia on the Supreme Court, Merrick Garland, a centrist judge with impeccable credentials, is another example of Republican partisanship, ignoring past precedent. ... As bad as the rejection of Garland by Republicans has been their obstructionism in filling federal court appointments recommended by Obama, causing difficulties in the courts’ ability to function, with heavy caseloads for justices and long delays in handling cases. ... Republican Senators blocked Obama’s attempt to fill vacancies on regional federal courts of appeal. The senators refused to approve of candidates for judgeships in their states ahead of formal nomination"
PD Editorial: Supreme Court held hostage: Day 70 (Press Democrat [CA] , 05/25/16)
"The Republican-controlled Senate is threatening to take the Capitol to historic depths of partisanship by refusing to take action, leaving the Supreme Court locked in a potential 4-4 split well into its next term.
Some say it’s just politics. But it’s worse than that. It’s a dereliction of duty, one the comes without regard for the potential long-term impacts on the nation’s judicial system.
The 70 days is already longer that the length of time taken to vet Chief Justice John Roberts,... Perhaps the greatest injustice is to Garland himself who is more than qualified for the position and would most likely receive bipartisan support — as he did when overwhelmingly confirmed for the D.C. Circuit court in 1997 — if and when nomination hearings are ever scheduled.... the American public continues to wait for the U.S. Senate do its job. So far the wait has been 70 days.
If the Senate acts now, it would still have plenty of time to have Garland vetted and confirmed before the Supreme Court begins its new term in October."
Benched! The “Thurmond Rule,” and other Republican excuses to avoid doing work (Justice Watch, 05/24/16)
"An extraordinary idea surfaced at the Senate Judiciary Committee’s weekly business meeting last Thursday. Senator Diane Feinstein, a member of the committee since 1993, proposed that senators stop debating the meaning of the so-called Thurmond Rule—which we’ve previously described as “a figment of the partisan imagination invoked to give an air of legitimacy to . . . pure obstruction”—and that instead members of the committee “just sit down and do our job” to fairly consider and process judicial nominees.... Since the Republicans took over in 2015, the Senate has confirmed a paltry 18 judges, putting it on pace for the fewest judicial confirmations in more than a half-century. Only two of the 18 confirmed are circuit court judges, a number that, if it holds, would be the lowest since the 55th congress in 1897-1898. And in the Judiciary Committee, Chairman Chuck Grassley is refusing to hold a confirmation hearing for a Supreme Court nominee who has already been pending for 70 days, to say nothing of the 29 lower court nominees who still need a hearing.... With the Republicans in charge, judicial vacancies have nearly doubled from 43 to 81, and judicial emergencies—the official designation for courts unable to keep pace with existing caseloads—have jumped from 12 to 29. ... at this point in the last Congress of President Bush’s administration, Senate Democrats had worked to reduce vacancies from 56 to 46 and judicial emergencies from 25 to 16."
Republican obstruction creates new bamboo ceiling for Asian American judicial nominees (Huffington Post, 05/24/16)
Christopher Kang, National Director, NCAPA: "President Obama has appointed more AAPI federal judges than all presidents in history combined, and the nine AAPI women he has appointed is even more remarkable considering there were only two prior to 2009.
While this is important progress, Senate Republicans are obstructing any further advancement by delaying consideration of President Obama’s five distinguished AAPI nominees—all women—to lifetime federal judgeships.... Judge Lucy Koh has been nominated for the U.S. Court of Appeals for the Ninth Circuit ... She would be just the second AAPI woman to serve as a circuit judge in our nation’s history. In June 2010, the Senate unanimously confirmed her to serve as a district judge ... by a vote of 90-0, but Judiciary Committee Chairman Chuck Grassley has not yet scheduled a hearing on her nomination.... Since Republicans took control of the Senate in January 2015, judicial vacancies have more than doubled, from 43 to 87..... empty courtrooms mean that everyone must needlessly wait .... The Senate has confirmed only 18 judicial nominees over the past 17 months—a pace so slow it hasn’t been seen in decades—while 55 nominees remain pending, subject to Republican obstruction and delay."
There’s plenty of time for Merrick Garland hearings, no excuse for GOP foot-dragging (Bangor Daily News [ME], 05/23/16)
Sherry Huber & Roger Berle, Republican members of Board of Directors, Maine Conservation Voters: "the blocking of Garland’s nomination is only the most recent and high-profile example of obstruction that has been taking place for years and left our federal courts without adequate numbers of judges to ensure the American people can have their day in court. As of today there are a total of 81 vacant judgeships across the country, with 29 of those unfilled positions resulting in workloads so high as to be declared a judicial emergency. Of the 57 nominees put forward by the president, 19 await a vote by the full Senate while 38 languish in the Senate Judiciary Committee.
There’s no excuse for that kind of foot-dragging. We need our federal courts to function and to reach decisions on the host of issues brought before them that shape our daily lives. Important issues, from civil and human rights to voting and campaign finance laws to environmental issues such as the EPA’s effort to control greenhouse gas emissions under the Clean Air Act ... Refusing to hold hearings and take an up or down vote on nominees is a dereliction of duty and an insult to the American people."
Senator Burr Causes 10 Year Judicial Vacancy (Fayetteville Observer [NC] , 05/23/16)
Column by Gailya Paliga, president, N.C. National Organization for Women: "Fayetteville's own extremely well qualified former N.C. Supreme Court justice was nominated on April 28 to fill a longtime vacancy on the federal court bench in Eastern North Carolina. ... I was shocked to read that Sen. Richard Burr vowed to block her the same day that she was nominated.... Sen. Burr refuses to do the U.S. Senate's job of advice and consent. ... Burr has caused and continues to cause the federal courts in North Carolina to be short-handed. Burr needs to fulfill his own constitutional responsibility and let the Senate do its job to fill this inexcusable 10-year judicial vacancy."
Editorial, 5/22: High court limping along (Lincoln Journal Star [NE], 05/22/16)
"The U.S. Supreme Court’s non-ruling on the contraceptive mandate shows how functional decay in the legislative branch has now spread to the judicial branch.... “The court expresses no view on the merits of the cases,” the justices said in an unusual, unsigned opinion.
It’s difficult to imagine this outcome if the court was operating at full strength with nine justices.
But Republicans in the Senate have refused to even hold hearings on President Barack Obama’s nominee, Judge Merrick Merrick Garland, to replace Justice Antonin Scalia.
This leaves the court with a 4-4 split on some hot-button topics.... But the high court’s most important role under the U.S. Constitution is to rule with finality on important legal questions.
The refusal by the U.S. Senate to fulfill its responsibility leaves the nation’s high court hamstrung. The non-ruling on religious freedom shows the high court’s justices are doing the best they can, but uncertainty and delay are growing."
EDITORIAL: In our opinion: Divided 8-judge Supreme Court not in America's best interest (Deseret News [UT] , 05/21/16)
"[A] Supreme Court with only eight justices has the potential to create a great deal of problems going forward.... The result is a situation where such deadlocks are making the Supreme Court increasingly unable to adequately fulfill its constitutional responsibilities.
This is no accident. Republicans in Congress have made no secret of their desire to delay filling the court vacancy until a new president is elected. While the rationale for doing so is hotly debated, in practical terms, there’s an awful lot of uncertainty inherent to that approach.... But there is a principle at stake here that transcends partisan politics. The legislative, executive, and judicial branches of the federal government were intended to provide a system of checks and balances, so it’s more than a little unsettling to see one branch of government so contemptuous of another that they’re willing to effectively sideline the judiciary for an entire year. Surely Congress has a responsibility to at least give the president’s nominee a fair hearing. The Supreme Court may not always issue decisions with which Congress, republicans, or even this newspaper will agree, but the court's constitutional authority deserves more respect than it is currently being afforded."