Category: SCOTUS

Clarence and Ginni Thomas take center stage at House hearing on Supreme Court ethics

Posted on by Joan McCarter

The federal judiciary is on tap for the House Wednesday—specifically, the topic of reforming the federal judiciary. The House has a raft of suspension bills (legislation that doesn’t require the regular rules process on the floor) it will run through, including the bipartisan Courthouse Ethics and Transparency Act, which the Senate already passed in February. While that’s happening, the Judiciary Committee’s Subcommittee on Courts will hold a hearing on Supreme Court ethics, or lack thereof.

That’s the juicy part of the day, with lawmakers spurred on by the disclosure of Ginni Thomas’ text messages showing the depth of her involvement in trying to promote a coup. As the spouse of a wildly partisan political activist, Supreme Court Justice Clarence Thomas at the very least should have recused from any cases related to the 2020 election and Donald Trump. Which of course he did not. This hearing will examine the lack of Supreme Court ethics and Congress’ role in dealing with that, including impeachment.

A memo obtained by The Hill from subcommittee chair Rep. Hank Johnson (D-GA) and sent to members ahead of the hearing outlines the existing codes of conduct that apply to other federal judges and summarizes legislative proposals that would extend the code to Supreme Court justices. As of right now, they’re exempt from it and are expected to discipline themselves—which, in Thomas’ case, doesn’t happen. The memo also outlines Congress’ impeachment authority as one of the tools at their disposal.

“Threats or inquiries of impeachment as a means of regulating the conduct of Supreme Court justices have had varying effects,” the memo said. Just one justice in the nation’s history has been impeached by the House, Samuel Chase in 1804. He was not convicted by the Senate. In 1969, Justice Abe Fortas resigned over an impeachment threat. The current crop of Republican justices pretty much thumb their nose at the idea of ethics, in contrast to the newest justice-designate, Ketanji Brown Jackson, who has preemptively recused herself from an affirmative action case before she’s even been officially seated on the court.

Markos and Kerry talk Ukraine and speak with Wisconsin Democratic Party chair Ben Wikler on how hitting back at Republicans helps win elections

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The memo makes it clear that this hearing is about the Thomases and the increasing calls for action  “following the reporting about text messages between the spouse of an associate justice and the then-White House Chief of Staff.”

“The Supreme Court has long operated as though it were above the law. But, Justice Clarence Thomas’ refusal to recuse himself from cases surrounding January 6th, despite his wife’s involvement, raises serious ethical—and legal—alarm bells,” vice chair of the subcommittee Rep. Mondaire Jones (D-NY), said ahead of the hearing. “The need for strong, enforceable ethics laws is clearer than ever. We have to do more to hold the Court accountable and restore public trust through a binding code of ethics and recusal.”

“Recent reports that the text messages of a justice’s spouse urging the overturning of a free and fair election may have been at issue in a case in front the Supreme Court—but that the justice did not recuse himself from the case—is just the latest and particularly egregious example in an unfortunately long list of illustrations as to why Supreme Court justices need to follow a formal code of ethics,” Johnson told The Hill. “I have been calling for this sort of reform for years, and I am encouraged to see a large, bipartisan majority of the public in favor of this long overdue legislation.”

Republicans, and particularly Senate Republicans, are unlikely to agree because it’s their justices behaving badly. It is, however, important for Democrats to keep pushing that point and to keep up the drumbeat for reform. The threat of some kind of action from Congress—a SCOTUS code of ethics, court expansion, impeachment—is at this point the only leverage that exists against the rogue Supreme Court majority.

The legislation they will pass Wednesday (a slightly different version passed 422-4 in December) will help some toward that effort. It also demonstrates that even the most hardcore partisan Republicans—in this case the bill’s sponsor, Sen. John Cornyn—recognize that there has to be at least the gloss of accountability for the Supreme Court. The bill toughens financial disclosure requirements for federal judges, including Supreme Court justices. They will have to make financial holdings and stock trades publicly available online, in the interest of disclosing conflicts of interest that would warrant judges recusing themselves from related cases.

As it currently stands, the parties involved in a case can request to see the judge’s financial disclosures, as can members of the public, but the judges themselves get to decide how much information they release and when. They have sole discretion in redacting information and can take all the time they want to fulfill requests.

The legislation is a result of a report last fall in the Wall Street Journal that found more than 130 judges broke the law by hearing cases in which they had a financial interest instead of recusing themselves. The Journal found 685 lawsuits that were decided by judges with a financial stake, with the potential fallout of hundreds of cases being overruled.

When the Journal alerted the judges to these violations, “56 of the judges […] directed court clerks to notify parties in 329 lawsuits that they should have recused themselves. That means new judges might be assigned, potentially upending rulings.” Most of the judges gave lame excuses or played dumb. “I had no idea that I had an interest in any of these companies in what was a most modest retirement account,” said Judge Timothy Batten Sr. of the U.S. District Court for the Northern District of Georgia, who owned JPMorgan Chase stock and ruled favorably for the bank in several cases.

Under this legislation, everyone in the judiciary branch will have to follow disclosure requirements like those that apply to lawmakers, reporting within 45 days all stock trades of more than $1,000. The Administrative Office of the U.S. Courts will have to create an online database, searchable and publicly accessible, of judicial financial disclosure forms and will have to get those forms into the database within 90 days from when they’re filed. The new law will apply to Supreme Court justices as well as federal appellate, district court, bankruptcy, and magistrate judges. The database has to be online within six months of President Joe Biden signing the bill.

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The Supreme Court can’t be untouchable. Congress needs to investigate Thomas

Posted on (Updated by Joan McCarter

The Washington Post’s Paul Waldman is absolutely right: “The controversy over Virginia ‘Ginni’ Thomas, Clarence Thomas, and the Jan. 6 insurrection is demonstrating one profound difference between Democrats and Republicans: how they view the value of making a stink.”

Three years on, the ridiculous and entirely made-up Hunter Biden story is still a thing, more a thing than Donald Trump extorting Ukrainian President Volodymyr Zelenskyy to try to get “dirt” on Biden. Because Republicans keep feeding it—because they know it will work.

Meanwhile, the spouse of a sitting U.S. Supreme Court justice was involved up to her eyebrows in the effort to overthrow the Congress and keep Donald Trump in office. The Donald Trump who was doing Vladimir Putin’s bidding in trying to withhold arms from Ukraine. Arms that Ukraine has desperately needed in its defense against Russia. That’s a pretty big thing! All definitely worth making a stink about. But thus far, Democratic leadership in Congress is not. The most they’ve done so far is say they think Thomas should recuse himself from any Jan. 6-related cases. Ineffectively.

That’s why Daily Kos and 16 other organizations have signed on to this Take Back the Court letter, demanding that Congress open a formal investigation into Clarence Thomas’ misconduct. We’ve written to Sen. Dick Durbin (D-IL) and Rep. Jerry Nadler (D-NY), the chairs of the Senate and House Judiciary Committees, “to request that the House and Senate Judiciary Committees open a formal investigation into Associate Supreme Court Justice Clarence Thomas’ misconduct in his handling of cases regarding the January 6 insurrection, the 2020 presidential election, and other cases involving his wife’s political activities.”

“Justice Thomas’ unethical conduct from the bench is within the purview of the House and Senate Judiciary Committees, and we urge the committees to investigate that conduct fully, in cooperation with the January 6 Select Committee as needed,” the groups write.

Even though Supreme Court justices have chosen not to abide by the same code of ethics that other all federal judges must adhere to, they are bound by a federal statute that bars them from hearing cases in which their “impartiality might reasonably be questioned,” or in which their spouse has “an interest that could be substantially affected by the outcome of the proceeding.”

Thomas has already violated that statute. He’s ruled in multiple cases surrounding the 2020 election and the insurrection—including being the lone dissenting vote requiring Trump to provide records to the Jan. 6 committee, records that may very well include communications from Ginni Thomas. “Justice Thomas clearly violated this provision when he refused to recuse himself from a case directly implicating his wife’s activities in support of the January 6 insurrection, and it is incumbent on Congress to respond,” the groups write.

Thomas’ rulings on cases in which his wife was directly involved go back at least two decades. In December 2000, the court heard Bush v. Gore, the only time in history in which the Supreme Court selected a president. While the case was pending, Ginni Thomas was collecting résumés for potential Bush administration positions. Twelve years later, he heard the challenge against the Affordable Care Act, NFIB v. Sibelius. Ginni was then heading up a group called Liberty Central, which was agitating for the law to be declared unconstitutional. Back then, a group of 74 members of Congress asked Thomas to recuse from the case. He did not. He heard the case and voted in dissent when the court upheld the law.

So we know how polite requests for recusal are going to pan out. Thomas is not going to recuse out of any sense of propriety or ethics. That’s abundantly clear. There’s only one way it happens and that would require a formal investigation.

It’s not just his refusal to recuse from cases, either, that raises ethics concerns aboutThomas. “Justice Thomas has repeatedly failed to disclose employers who paid his wife hundreds of thousands of dollars, as required by the Ethics in Government Act of 1978,” Take Back the Court points out. “This raises serious questions about what, if anything, Justice Thomas is trying to hide, whether any other undisclosed payments exist, and what possible judicial outcomes such hidden details relate to.”

“Allowing Justice Thomas to avoid scrutiny will surely cause the American people’s faith in our judicial system to deteriorate further—perhaps beyond repair. Americans know that Justice Thomas cannot act impartially in cases related to his wife’s political activities,” the groups write. “It’s up to your committees to ensure that he is held accountable for abusing his power and pretending otherwise.”

Nothing is going to happen to Thomas without Democrats kicking up a stink. An investigation into Thomas will sure stink for the Supreme Court, and for Chief Justice John Roberts, who seems to care about his legacy as much as anything else. Yes, it needs to happen.

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AOC Calls To Impeach Clarence Thomas, The Only Black Supreme Court Justice

Posted on by Rusty Weiss

Far-left Representative Alexandria Ocasio-Cortez (AOC) is demanding Supreme Court Justice Clarence Thomas resign or face impeachment for what she has determined are ethical breaches.

The comments follow reports that Thomas’ wife, Virginia Thomas, exchanged text messages with then-White House chief of staff Mark Meadows about alleged election fraud.

“Clarence Thomas should resign,” AOC tweeted.

“If not, his failure to disclose income from right-wing organizations, recuse himself from matters involving his wife, and his vote to block the Jan 6th commission from key information must be investigated and could serve as grounds for impeachment.”

Thomas is the longest-serving justice, the second black justice, the only black justice, and the most conservative member currently serving on the Supreme Court.

RELATED: Flashback: Biden Effectively Killed Potential Nomination Of First Black Woman To Supreme Court

AOC Wants to Impeach Clarence Thomas

One has to wonder what the media takeaway would be here if a Republican lawmaker were trying to impeach the only black justice sitting on the bench of the Supreme Court.

AOC goes after Clarence Thomas, however, and nobody bats an eye.

Democrats are currently trying to get Judge Ketanji Brown Jackson seated on the Supreme Court after President Biden vowed to only consider black women for the Court. 

They’re seeking to place Jackson on the court in large part due to her being black, while simultaneously trying to remove the only current black member.

Proving it is all about extreme ideology and subservience to Democrats in the end. They only act as if they care about diversity if it will help them get votes.

President Biden, as an example of this, filibustered the nomination of Judge Janice Rogers Brown, a black woman, to serve on the U.S. Court of Appeals for the District of Columbia Circuit in 2003.

He subsequently warned then-President George W. Bush he would do the same if she were nominated as the first black woman to serve on the Supreme Court.

RELATED: Tucker Carlson Mocks Ketanji Brown Jackson’s Inability To Define ‘Woman’ – Complete With Graphic Of The Female Reproductive System

Proper Worldview

Ocasio-Cortez, in discussing Biden’s decision to choose a black woman for the Supreme Court suggested “identity” would only take that person so far. That their “worldview” would have to match up with the extreme left.

“Identity is just the starting step when we are discussing a Supreme Court justice … ” she said. “But the question is, what is going to be that nominee’s worldview?”

On Clarence Thomas’s supposed ethical breaches – for which she provided no evidence – AOC suggested he needs to be taught a lesson.

“Congress must understand that a failure to hold Clarence Thomas accountable sends a loud, dangerous signal to the full Court,” she said adding that punishment might deter other conservative on the Supreme Court from acting as he has.

The National Review’s Andrew McCarthy notes that Supreme Court justices aren’t subject to recusal even if their own activities involve certain cases.

“The smearing of Justice Thomas is transparently partisan politics, nothing more,” he writes.

The post AOC Calls To Impeach Clarence Thomas, The Only Black Supreme Court Justice appeared first on The Political Insider.

As momentum builds in Congress to do something about Thomas, impeachment needs to be an option

Posted on (Updated by Joan McCarter

Supreme Court Justice Clarence Thomas is a problem for the court, for the nation, and for democracy in general. That’s been true for decades, as long as his deep ties to the dark money swirling around the judiciary, and doesn’t even take into account the extremely partisan activities of his “best friend” and wife Ginni. Since those activities now include attempting to overthrow the government, the problem of Clarence Thomas just got a whole lot more glaring—and congressional leadership has been caught just a bit flat-footed.

Stepping into the void, Rep. Alexandria Ocasio-Cortez was the first to use the “I” word. “Clarence Thomas should resign,” she tweeted. “If not, his failure to disclose income from right-wing organizations, recuse himself from matters involving his wife, and his vote to block the Jan 6th commission from key information must be investigated and could serve as grounds for impeachment.”

By all means, the House should start talking about impeachment. That’s what Thomas deserves: the ultimate censure. That’s where to start: the maximum. There’s no real other leverage the other two branches have over the Supreme Court than pressure in the public eye and the threat of action. Chief Justice John Roberts has been aware enough about his personal legacy in his career thus far to make blowing up the Thomas scandal in public—and keeping it there with discussion of impeachment—a smart tactic.

Would the 50-50 Senate convict him? No, but that’s a valuable weapon for Democrats in the upcoming election. Republicans are protecting the Supreme Court justice who has refused to recuse himself from cases involving his wife’s efforts to overthrow the government.

The good news is that Democrats are inching toward something a little more concrete than demanding that Thomas recuse. That’s where they started. A group of House and Senate Democrats, spearheaded by Sen. Elizabeth Warren (D-MA) and Rep. Pramila Jayapal (D-WA), wrote to the Supreme Court requesting that Thomas recuse himself from any future Jan. 6-related cases, as well as provide a “written explanation for his failure to recuse himself” in previous cases.

“[G]iven the recent disclosures about Ms. Thomas’s efforts to overturn the election and her specific communications with White House officials about doing so, Justice Thomas’s participation in cases involving the 2020 election and the January 6th attack is exceedingly difficult to reconcile with federal ethics requirements,” says the letter obtained by The Washington Post.

The lawmakers also called on Roberts to commit to creating “a binding Code of Conduct for the Supreme Court—the only court in the country not currently subject to a judicial code of ethics—that includes (1) enforceable provisions to ensure that the Justices comply with this Code and (2) a requirement that all Justices issue written recusal decision.” They ask that he do so by April 28.

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Which is a fine and appropriate next step, since Thomas will surely refuse to recuse. “He absolutely should recuse himself,” Jayapal told Politico. But, she added, “Clearly the Supreme Court is in need of ethics reforms.”

Jayapal is on the House Judiciary committee, so the ethics reform thing is another possibility. In fact, legislation to impose the Judicial Code of Ethics on the Supreme Court—which is currently exempt from it—would be a good concurrent step for Congress to be taking along with the public pressure campaign to get him to resign. That legislation exists in a bill written by Sen. Chris Murphy (D-CT) and should start moving through committee immediately.

After an ill-conceived dismissal of the issue on Monday by Judiciary Chair Dick Durbin, who suggested there’s no urgency to the Thomas problem, there’s now some momentum there. Durbin had a day to think it over and is now joining Warren in saying lawmakers need to act. Durbin told CNN’s Manu Raju that imposing the ethics code on the Supreme Court is “long overdue.” Warren told him the legislation should include limits on stocks and “rules about other kinds of personal conflicts.” The Senate Democrats are expected to discuss Murphy’s legislation in their conference luncheon Tuesday, Raju reports.

That’s all fine and needs to move apace. At the same time, House Democrats should not rule out pursuing impeachment, which has to initiate in that chamber. Once again, Ocasio-Cortez is pushing Democrats to go there. Remember, she said, that pushing for impeachment of Trump on his extortion of Ukrainian President Volodymyr Zelenskyy was initially deemed “unrealistic,” and the “debate was fierce & opposition real.” But, she argues, “When we look back at the decision to impeach Trump over Ukraine today, could you imagine if the naysayers and those claiming to be ‘politically savvier’ won? WE would be explaining why we allowed it to happen instead of the Senate explaining why they acquitted.” That’s on the Senate Republicans.

“Subpoenas, investigations, and impeachment should absolutely be on the table. We shouldn’t have to think twice about that,” she concluded in the thread. “We must go where the facts take us. A failure to act puts the imperiling of democracy squarely on *our* shoulders. It’s our duty to defend it.”

Let the Senate lead on the code of ethics legislation. How are Senate Republicans going to argue about that? The House needs to start those investigations toward impeachment. Both chambers should also be talking now about legislation to expand the court, and to put pressure on President Joe Biden to join as well. If there’s going to be any change, any accountability at the court, it’s not going to come without a big public stink. It’s the only way it’s going to happen.

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Hawley injects QAnon conspiracy theory into Jackson SCOTUS nomination. Democrats should shut it down

Posted on by Joan McCarter

Noted insurrectionist and treason-curious Sen. Josh Hawley (R-MO) has decided to bring some QAnon seasoning to the disgustingly and blatantly racist appeals for opposition to Judge Ketanji Brown Jackon’s Supreme Court nomination. In a long and slimy Twitter screed that does not merit linking to, Hawley suggests that Jackson isn’t just “soft on crime”—the dog whistle Republican narrative—but has coddled sex offenders and in particular pedophiles.

Hawley went so far as to say that “her record endangers children,” a charge that has probably already been picked up on by the worst of the worst QAnon conspiracy theorists who feed the right-wing media. Expect it to show up on Fox News any minute now.

That makes Sen. Dick Durbin’s attitude a little too dismissive. The Judiciary Committee chair told Politico: “I don’t believe in it being taken seriously … I’m troubled by it because it’s so outrageous. It really tests the committee as to whether we’re going to be respectful in the way we treat this nominee.”

Yes, yes it does. Particularly when Minority Leader Mitch McConnell—after that screed from Hawley was posted—lied through his teeth, telling conservative radio host Hugh Hewitt that “I think Judge Jackson will be treated respectfully. I think the questions will be appropriate.” No. The questions will not be appropriate. Hawley just proved that, and McConnell needs to be pressured into holding him to account for that.

White House Deputy Press Secretary Andrew Bates responded appropriately. “This is toxic and weakly-presented misinformation that relies on taking cherry-picked elements of her record out of context—and it buckles under the lightest scrutiny.” The full statement:

Judge Jackson’s is a proud mother of two whose nomination has been endorsed by leading law enforcement organizations, conservative judges, and survivors of crime. This is toxic and weakly-presented misinformation that relies on taking cherry-picked elements of her record out of context—and it buckles under the lightest scrutiny. It’s based on a report unanimously agreed to by all of the Republicans on the US Sentencing Commission, on selectively presenting a short transcript excerpt in which Judge Jackson was quoting a witness’s testimony back to them to ask a question, and on omitting that her rulings are in line with sentencing practices across the entire federal judiciary regarding these crimes. In the overwhelming majority of her cases involving child sex crimes, the sentences Judge Jackson imposed were consistent with or above what the government or U.S. Probation recommended.

There is the problem that when you are explaining, you are losing. But what Bates says is all true, and it’s what Democrats need to bring to next week’s hearing for Jackson: the facts. But they have to bring those facts with anger and fire and ferocity. They have to be prepared to humiliate the worm Hawley (and Ted Cruz, and Tom Cotton, and Marsha Blackburn—the very worst of the Republicans are on this committee) to the utmost.

That means some discipline and some coordination among Democrats, which is far too often missing in these hearings. They’re generally too enamored with the sound of their own voices and the rare opportunity to carry on in front of national television cameras to actually be effective.

They can take some inspiration from Twitter. For example, using this:

Clarence Thomas wanted to strike down a law allowing federal courts to order civil commitment for sex offenders. I look forward to Hawley's forthcoming articles of impeachment against this soft-on-crime, child predator-coddling justice. https://t.co/yV8QB1lYUQ https://t.co/aW7ZOB9yqE

— Mark Joseph Stern (@mjs_DC) March 17, 2022

This shit has to be called out for what it is. Forget the “comity” of the Senate hearing room. Forget the pomp and circumstance of the hearing room. When the likes of Hawley tries to advance this kind of malevolent bile, Democrats need to be united in attacking back and exposing it.

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The FBI apparently lied about investigating Kavanaugh. What are Democrats going to do about it?

Posted on (Updated by Joan McCarter

The Federal Bureau of Investigation (FBI) has now admitted that it failed to investigate even the most "relevant" of the 4,500 tips it received during an investigation into sexual assault allegations against Brett Kavanaugh, then a Supreme Court nominee, now a Supreme Court justice. That was in response to a two-year-old letter from Democratic Sens. Sheldon Whitehouse and Chris Coons. "We apologize for the extended delay in responding," says Assistant Director Jill C. Tyson.

Which is problem No. 1 for the Senate Judiciary Committee, of which Whitehouse and Coons are members: the FBI and Director Christopher Wray. Wray was the original recipient of the Aug. 19, 2019 letter from the senators. A letter which was ignored until June 30, 2021. Wray was the person ultimately responsible for how the FBI handled the background investigation with that "tip line," which ended up apparently just being a dumping ground. Whitehouse and Coons first pressed Wray on this in a July 2019 hearing.

"During the hearing, Wray echoed Republican claims that the FBI conducted the investigation 'by the book,' while asserting that supplemental background investigations are less rigorous than criminal and counterintelligence investigations," the senators say in a press release following the revelation that the FBI did nothing more than send the tips to Trump's henchmen.

So the senators fired off another letter Thursday. "The admissions in your letter corroborate and explain numerous credible accounts by individuals and firms that they had contacted the FBI with information 'highly relevant to … allegations' of sexual misconduct by Justice Kavanaugh, only to be ignored," the senators write in a sternly-worded letter. "If the FBI was not authorized to or did not follow up on any of the tips that it received from the tip line, it is difficult to understand the point of having a tip line at all." The letter demands more answers, potentially in pursuit of what will possibly be a future oversight investigation by the Judiciary Committee.

Because if it's not, what the hell is the point? There has to be accountability from Wray to explain why exactly the Trump White House called the shots on this. Honestly, Wray's job needs to be in jeopardy here. There's the very real possibility that the FBI director lied to the Senate Judiciary Committee in July 2019 when he told the senators that the investigation into allegations against Kavanaugh were "by the book." The committee needs to put all of the heat they can muster on him, and if necessary, on his boss—Attorney General Merrick Garland—until they get some goddamned answers. That goes for all the questions Whitehouse raised in a follow-up demand to Garland in March of this year.

In his follow up letter to Garland, Whitehouse wrote: "If standard procedures were violated, and the Bureau conducted a fake investigation rather than a sincere, thorough and professional one, that in my view merits congressional oversight to understand how, why, and at whose behest and with whose knowledge or connivance, this was done." This follow-up letter to Garland is apparently the impetus for the FBI to dust off its inbox to find and respond to the original inquiry from 2019, but it certainly doesn't answer all of their questions.

While they're at it, Senate Democrats need to start probing again how Kavanaugh managed to pay off hundreds of thousands in credit card debt between May 2017 and his nomination in July 2018, and on top of that pay $92,000 in country club fees, and pay the $10,500-a-year tuition for his two kids in private school, and make payments on the $815,000 mortgage he had for his $1.2+ million home. Because all of that is still very, very hinky.

That leads us to problem No. 2 for Senate Democrats and for President Joe Biden. There is a seated Supreme Court justice who has been credibly alleged to have committed assault, who has not been investigated, and whose finances are questionable, to say the least. First, this:

There is nothing stopping Democrats in the House and/or Senate from interviewing the witnesses the FBI never spoke to, and collecting the FBI tips the Trump White House apparently buried, as part of its own investigation into whether Kavanaugh committed perjury.

— Brian Fallon (@brianefallon) July 22, 2021

That's from a former senior aide to Majority Leader Chuck Schumer, former Justice Department staff, and now executive director of Demand Justice. So yes, Congress can most definitely conduct the investigation where the FBI failed. The results of these investigations could lead, potentially, to impeachment of Kavanaugh, though that's a long shot and potentially a long way away.

Right now, Kavanaugh is just one of three Trump Supreme Court justices who are there in the most dubious of circumstances. Neil Gorsuch is in a seat stolen from President Barack Obama (hey, Merrick Garland!) by Mitch McConnell. Kavanaugh was not property vetted, no matter how you look at it. Amy Coney Barrett was rushed onto the court just days before the 2020 election—while people were casting their ballots—because Trump thought she would give him the majority that would overturn the election in case he lost. This dubious trio joins the inarguably corrupt Clarence Thomas, whose wife Ginni spent the whole of 2020 amplifying Trumpist conspiracy theories about Biden on social media.

They, with Alito, are the Supreme Court majority. The ones who all but ended voting rights and allowed for even more secrecy in dark money to flood our system. What they have planned for next session is even worse. The Supreme Court is packed with dangerous ideologues, and a few corrupt ones, too.

Now President Biden and Democrats have a chance to, well, unpack it. To dilute the Trump/RNC/Koch/Federalist Society’s malign influence and balance it out with four or six or however many additional justices. It is imperative. It is existential.

Tough talk on dealing with repairing the damage to SCOTUS

Posted on (Updated by MusicianinLA

There is a lot of talk about what to do to repair the damage done to the Supreme Court by the Republican Party. One idea is to reduce the number of justices to six, casting aside the three Trump appointees. There is a major problem with this. Last on, first off does not work with lifetime federal judicial appointments. The only times the size of the court was reduced in the past—in 1800 and 1866—there was either a vacancy on the court that was eliminated, or the number of justices was reduced through attrition and non-filling of vacancies. The only constitutional way to remove a justice from the court is through impeachment (which we all know will never work as long as there are 34 GOP senators, and which has failed in the past). Which also means that impeaching, say, Kavanaugh, for perjury during his confirmation hearings, while probably entirely warranted, is a non-starter.

We Democrats are frankly not very good at making a case for ourselves. As a litigator, it was my job to make the best case for my clients. So, here goes.

Just FYI (and for what it’s worth), I am a lawyer and a member of the Bar of the Supreme Court of the United States.

Let’s begin with an important statistic, a piece of evidence , if you will: GOP presidents have made 15 of the last 19 SCOTUS appointments. And let’s look at a subset of that mathematical evidence: five of those 15 have been appointed by presidents who lost the popular vote and were approved by senators representing a minority of the people of the United States. (What this means, numerically, is that if the court were expanded to, say, 15 justices, a Democratic president who won the popular vote would still have only appointed 10 of the last 25 justices!) The GOP has gamed the system by holding vacancies open for Trump—and not only Scalia’s seat, but over 100 lower court vacancies, some of which were filled by people the American Bar Association (not exactly a liberal bastion) deemed to be “unqualified.” The GOP has undermined the legitimacy of the court and that legitimacy must be restored.

There was a time—not that long ago—when the approaches of justices to constitutional issues changed, matured, and deepened over time. Earl Warren was a prime example of that: he went from being known as a “law and order” Republican to the head of the most liberal—and I would argue most legally significant—SCOTUS bench in our history. Warren, for example, understood the importance of the court handing down the decision in Brown v. Board of Education unanimously, and he worked hard to ensure that the decision was, in fact, unanimous. William Brennan, probably the most influential liberal justice on that court, was an Eisenhower appointee. Harry Blackmun, appointed as a conservative by Richard Nixon, authored the opinion in Roe v. Wade and became increasingly liberal during his tenure. John Paul Stevens, appointed by Ford, moved from conservatism to being one of the most liberal justices on the court. David Souter, appointed with expectation that he would be a conservative, first moved to the center and then to the liberal wing of the court.  

All these justices saw the potential effect that their decisions in the cases before them would have on the lives of real people, and that openness and, dare I say it, empathy, made them take the side of real people. And it is stories like these, of thoughtful conservatives and conservative legal scholars growing and developing into liberal justices, that has made the GOP so determined to ensure that only right-wing ideologues are seated on the court. Has Clarence Thomas grown and developed since his appointment? (Hell, he’s hardly participated in oral arguments.) Did William Rehnquist? Has Samuel Alito? No, no, and no. Will Gorsuch, Kavanaugh, and Barrett grow and mature? Don’t bet the ranch.

Our unrelenting message must be that the GOP has, by its own insistence on the appointment of ideologues rather than open-minded jurists, undermined the legitimacy of SCOTUS; that the GOP has, by its manipulation of the appointment process for its own political ends, undermined the legitimacy of SCOTUS; and that this GOP “president” has, by ignoring the ruling of SCOTUS requiring the re-opening of registration for DACA, undermined the legitimacy (and authority) of SCOTUS. By these actions, the GOP has undermined the third branch of government, an independent judiciary, that is established in the Constitution that they pretend (word choice very intentional) to revere. It is up to us to point all this out, over and over and over again if necessary. It is up to us to make the case that the GOP has destroyed the impartiality of the third branch of our government. It is up to us to tell all comers that it is high time to rectify the destruction of the independent judiciary, and that we must act NOW. 

Democrats must get this message out there. The court, through the manipulations and political power plays of the GOP, is not—and the GOP does not intend it to be—a neutral arbiter. Despite John Roberts’ patently false claim that he will only call balls and strikes, the court is not a fair forum for the important cases it decides—just look at the shadow docket, in which unsigned per curiam orders have been used to decide, without opinion, cases affecting the right to vote and the way in which votes are counted. (Thank God for Sotomayor calling out the majority, even though, since they have no shame, it does not have any effect on their exercise of raw judicial power. At least we know what’s going on.)

These “conservative” justices have no problems with the worst, most abusive forms of judicial activism, like reading an entire clause or two out of the Second Amendment, or finding that corporations are “persons” and are entitled to protect their First Amendment rights and their political and religious beliefs, or finding that the Florida Supreme Court’s interpretation of Florida law as applied to a federal election was unconstitutional (Bush v. Gore, which they also tried to make into a non-precedent). They have no problem “distinguishing” precedents into meaninglessness—overruling them de facto if not de jure. The vast majority of cases decided by this court exalt the powerful, the white, law enforcement, or the religiously conservative over the poor, the disadvantaged, those who are members of minorities, the LGBTQ community, and those accused of crimes. 

And we need to be clear that time will not redress this problem anytime soon, which is why we must act now. 

Justices, with proper health care (which they have as federal employees) can serve well into their eighties. GOP presidents and senators have installed increasingly younger justices on the court. Without court expansion, it is unlikely that Biden will get more than one appointment during a 2021-2025 presidential term. That is because the only justice over 80 is Stephen Breyer, at 82. That one appointment will not affect the 6-3 conservative majority on the court, because a “liberal” would be replacing a “liberal.”

If the other justices serve until Breyer’s current age, here is when their seats would turn over:

  • Clarence Thomas, at 72, would not leave the court until 2030.
  • Alito, at 70, would depart in 2032.
  • Sotomayor, at 66, would leave in 2036.
  • Roberts, at 65, would leave in 2037.
  • Kagan, at 60, would leave in 2042.
  • Kavanaugh, at 55, would leave in 2047.
  • Gorsuch, at 53, would leave in 2049.
  • Barrett, at 48, would not leave the bench until 2054.

If we leave the number of seats at nine, this means that, absent unforeseen early deaths of some of the conservative justices, there is not a realistic opportunity for a change from a conservative-dominated court to a more liberal court until—are you ready for it?—2032! And that is based on the assumption that Democratic presidents would be in office and control the Senate when every single vacancy arises between now and then. That’s 12 more years of a conservative-dominated court—and that’s a best-case scenario. Twelve years of a court striking down statutes ensuring that people have the right to vote. Twelve more years of a court striking down laws that give access to health care. Twelve more years of a court striking down the very concept of reproductive rights. Twelve more years of a court giving a pass to corporations, underhanded prosecutors, and violent police officers. Twelve more years of a court allowing the GOP to gerrymander the hell out of every single district, state or federal, that they can.

The court, as an institution, must be expanded in order to reduce the importance and power of the constitutional interpretation mechanisms of individual justices. Sure, if there are 15 justices there will be a few 8-7 decisions, but there will be far, far fewer of them than there are 5-4 decisions currently. (Eighty-four of which in the past decade have favored corporations, limiting their liability and responsibility for their actions.)

Having argued cases for many years, before juries over the selection of which I had limited power, I believe that a majority of Americans can and will understand what is going on if it is clearly and effectively communicated to them. I believe that a majority would respond to this rationale and support the expansion of the court. (Trumpies won’t, but they are legal lost causes.) We Democrats need to do what the GOP does: develop talking points and relentlessly pound them whenever the chance arises—or, being even more like the GOP, pounding them even when they are not responsive to a question. 

This is a case we must make to the jury of the American public, and it is a case we must win if our civil rights are to be preserved. It is a case we must win to end minority rule in this country. It is a case we must win to ensure the survival of our democracy through the upholding, indeed expansion, of voting rights.

Am I angry about what has been done to SCOTUS? Damn right, I’m angry. And we need to get others to share that anger, especially as each new decision chipping away at (or blasting away) our rights is handed down.

Take no prisoners.

It’s not about Barrett’s religion: It’s about the cover-up of how extreme and unqualified she is

Posted on by Joan McCarter

The fact that Supreme Court nominee Amy Coney Barrett "served as a ‘handmaid’ in Christian group People of Praise," in the words of The Washington Post, is a thing. It's a thing that is concerning to a lot of not evangelical or fundamentalist Christian Americans. Republicans are, however, trying to make that a landmine for Democrats, with Senate Majority Leader Mitch McConnell leading the way. They're saying any questions about her rather out-of-the-mainstream practice is an attack on faith. They are in fact itching to have a fight about her religion.

But that's eliding a larger problem: Barrett has been actively trying to cover-up her association with People of Praise and her fundamentalist beliefs, and People of Praise have been helping. This is what Democrats need to be focusing on. The Post reports that while Barrett has disclosed "serving on the board of a network of private Christian schools affiliated with the group," People of Praise will not confirm that she is a member. Furthermore, in the last few years it has "removed from its website editions of a People of Praise magazine — first those that included her name and photograph and then all archives of the magazine itself." Why are her ties to the group being scrubbed and who is helping her do that?

That goes along with Barrett's failure in 2017 and again this year to disclose that she had signed on to a newspaper ad in 2006 taking the most extreme position on abortion possible, advocating for the overturning of Roe v. Wade and going further, saying she  opposed "abortion on demand" and defended "the right to life from fertilization to the end of natural life." That's leaving the door open for banning types of birth control and for investigation and potential prosecution of women who've had miscarriages, the furthest forced birth extremists tend to go. Of course she doesn't want that information in front of the Judiciary Committee or the American public, which supports abortion rights.

So who's covering it up for her? Is the White House advising her to withhold information? Is the Republican-majority Senate  Judiciary Committee staff helping her pick and choose the information senators and the American public get to weigh when considering the nomination? Because it sure seems like a concerted effort, and the kind of thing that raises eyebrows for investigators. What else might she be failing to disclose—and why? This should at least require more time for a more thorough investigation and Democrats should demand that. It's not about her religion: It's about why she is trying to cover up her religion!

Clearly the investigation into Brett Kavanaugh wasn't thorough enough because McConnell and Sen. Chuck Grassley, who was then chair of the committee, wouldn't let it be. They didn't give enough time. That means there are still outstanding questions about Kavanaugh, and big ones. Like who paid his $92,000 country club fees, his $10,500-a-year private school for his kids, his $60,000 to $200,000 credit card debt, and his $1.2 million mortgage before his confirmation hearings. Which is a question for another time and potentially an impeachment investigation when there's a Democratic-controlled Senate. Potentially.

But on this nominee, there needs to be an investigation. The FBI needs to figure out why there was a coordinated effort to cover this information up, why the People of Praise group has been erasing her from existence in their organization, and what else she could be withholding from the committee. It's not about the organization itself: It's about the effort to prevent the Senate and public from knowing. She, and the Republicans, demean the process by hiding things.

There are already serious questions about her fitness to serve. First and foremost, Barrett accepted the nomination in the first place, in these extraordinary circumstances and mere weeks before a presidential election. Then she participated willingly and knowingly in what turned out to be a coronavirus superspreader event that violated the rules the District of Columbia has in place for public gatherings. Yes, the White House is federal land and not governed by D.C.'s ordinances, but it shows an appalling lack of judgement on the part of this would-be justice to participate in the whole fiasco.

But there are also questions about her actual ability to judge. She actually authored a Seventh Circuit opinion last year "that threatened to hurl corporate insurance policies into chaos" and was quickly and quietly withdrawn to allow the lower court judgement she had initially overturned stand. It was an "episode that stunned attorneys and raised questions about her judgment." Because she made an extremely basic and big mistake. She ignored state law, in this case Indiana’s, in her initial ruling. "Her opinion, absolutely, 100 percent, ignored Indiana law with respect to how those things would be decided," one lawyer involved said. "It was the only time in my career where I had to file a brief that raised this point."

It's a given, even among conservatives, that Barrett got this nomination not for her legal qualifications but because of her ideological ones. That's not even debatable in 2020, after the Trump administration and the kinds of judges—even those rated unqualified—he's promoted. What's remarkable is the extent to which Republicans are still committed to covering up her background. That's a problem, and one that gives Democrats absolutely every reason to fight this nomination. Not on religious grounds: on the cover up.

Barrett is the most unpopular Supreme Court nominee, so Democrats have nothing to lose in this fight

Posted on by Joan McCarter

For decades, the American public has been working under the assumption that if someone were nominated to the Supreme Court, that person must be qualified. How else could that individual get to a place where they would even be considered for nomination? That slipped a little with President Ronald Reagan's nomination of Robert Bork, who ended up being rejected even by Republicans—enough of them to sink his confirmation. Everything's changed with Donald Trump, however. First Republicans broke all norms and regular procedures by refusing to even talk to President Barack Obama's nominee, Merrick Garland, for more than half a year before the election. Then we had the Brett Kavanaugh debacle, where the whole country could see the blunt force Republicans would employ to get a guy everyone recognized as the frat-boy bully of their school nightmares onto the court.

Now we've got the nomination of Amy Coney Barrett, and an electorate not giving her the benefit of the doubt as to qualifications. CNN reports: "Initial reactions to Barrett are among the worst in CNN and Gallup polling on 12 potential justices dating back to Robert Bork, who was nominated by Ronald Reagan and rejected by the Senate." Barrett has the distinction, along with Kavanaugh, of being "the only two for whom opposition outweighed support in initial polling on their nominations." A plurality does not want her confirmed, 46% to 42%, and 56% say she should recuse herself from any cases resulting from the 2020 election, including 32% of Republicans. Which leads us to the fight Democrats have to have against her confirmation. There's absolutely no downside to Democrats doing everything in their power, limited though it may be, to fight this.

Most of that fight is going to have to be in the Judiciary Committee. The No. 1 thing Democrats should be doing is boycotting the hearings and refusing to allow Lindsey Graham, the chairman, a quorum to conduct most of his business. With any number of Republican senators unavailable at any given time because of quarantine, Democrats need to be nimble and flexible in when they choose to participate. But senators, Democratic or Republican, aren't likely to miss an opportunity to get some video clips of themselves scoring points out there. Knowing they aren't going to give up a chance at their 15 minutes, they need to follow a plan. Chuck Schumer needs to make them do it.

For once, they have to coordinate. They have to find a single plan of attack and stick to it, with their questions coordinated and designed to build a narrative. Already we're seeing the opening—this is a rushed confirmation that Republicans are intent on ramming through before the election and in that rush, they're covering stuff up. We saw the initial evidence of that when Barrett did not submit a newspaper ad she signed on to in 2006 on behalf of a forced-birther group with the materials she provided to the Judiciary Committee—either for this nomination or for her 2017 nomination to an appeals court position. In the ad, she said she opposed "abortion on demand" and defended "the right to life from fertilization to the end of natural life." That's not all: In 2017, The Washington Post reports she didn't disclose her affiliation with the radical Christian group People of Praise. The group has scrubbed all references to her from its website. What else is she hiding?

In pushing that narrative, they should also have the less effective of their members step back. Let Sens. Kamala Harris (she has said she intends to participate), Amy Klobuchar, Mazie Hirono, and Sheldon Whitehouse—the sharpest interrogators—take the lead. They were the sharpest and most effective questioners in the Kavanaugh hearings and we need that acuity again now. 

That's not the only Democratic coordination we need to have happen. Schumer should be quietly working with his conference and with House Speaker Nancy Pelosi on measures they can take to gum up the works for the Senate after the almost inevitable vote out of committee happens. There are things like War Powers resolutions Democratic senators can bring to the floor that will take precedent over a confirmation vote. Likewise, there are resolutions—most notably impeachment—that the House can send over that have to be considered before nominations. Note that this kind of coordination could be happening already. We're not supposed to see it. To be most effective, it can't be seen coming. McConnell is likely already figuring out how he can combat such measures, so Democrats have to be as wily in figuring out when and how to spring them. Which they should be working on. Right now.

Stopping this is going to be nearly impossible, barring the coronavirus continuing to sweep through Republican ranks and reducing the number of senators McConnell has available at any given time. But that doesn't mean Democrats are powerless, and it doesn't mean they shouldn't find every possible avenue for getting this delayed past the election. It probably won't work, but they've got to try it anyway.

For one thing, it will give them practice on coordinating their messaging and their efforts to reform the courts when they have the White House and Senate in 2021.

It’s Starting: Democrats Introduce Bill To Limit Supreme Court Terms

Posted on by Jack Hadfield

Amid calls for significant changes to the Supreme Court and Senate, Democrats are set to introduce a bill next week that would set Supreme Court term limits at 18 years.

Term Limits For SCOTUS

The Supreme Court Term Limits and Regular Appointments Act, according to Reuters, will be introduced by Democrats next Tuesday.

It would set term limits for the Supreme Court at 18 years, and allow every President to appoint to nominate two justices per term.

“It would save the country a lot of agony and help lower the temperature over fights for the court that go to the fault lines of cultural issues and is one of the primary things tearing at our social fabric,” said Democrat Representative Ro Khanna.

Khanna will introduce the bill along with Representatives Joe Kennedy III and Don Beyer.

The bill would exempt current justices from the rules. Justices who finish their term would retire from the Supreme Court and then rotate to lower courts.

“That’s perfectly consistent with their judicial independence and having a lifetime salary and a lifetime appointment,” Khanna argued.

RELATED: Ruth Bader Ginsburg’s Daughter Claims She Didn’t Retire Because She Wanted Hillary To Name Successor

Democrats Demand Court Packing

This is not the only thing that Democrats have been demanding regarding the Supreme Court.

Representative Kennedy wrote on Twitter that if President Trump and the Republicans held a vote for his Supreme Court nominee this year, they would simply pack the court in 2021.

This sentiment has been echoed by other Democrats. “Mitch McConnell set the precedent,” Senate candidate Ed Markey tweeted.

“No Supreme Court vacancies filled in an election year. If he violates it… we must abolish the filibuster and expand the Supreme Court.”

Representative Jerry Nadler joined the calls.

If McConnell “were to force through a nominee during the lame duck session—before a new Senate and President can take office—then the incoming Senate should immediately move to expand the Supreme Court,” Nadler wrote.

RELATED: President Trump: If Dems Use Impeachment To Block Supreme Court Nomination, “We Win”

Schumer: “Nothing Is Off The Table”

Democrats are fuming that President Trump and Mitch McConnell have the gall to use their constitutional powers to nominate and confirm a replacement for Ruth Bader Ginsburg.

It’s not the first time that there has been a nominee in an election year, and it won’t be the last.

They forget that Merrick Garland was not voted on because the Senate and Presidency were split. That is not the case this time.

Some legal scholars argue that a constitutional amendment is needed to set term limits for Supreme Court justices.

It is unclear from the Reuters article whether or not Representative Khanna has been challenged about the issue.

Senator Chuck Schumer said that “nothing was off the table.” I believe him.

The post It’s Starting: Democrats Introduce Bill To Limit Supreme Court Terms appeared first on The Political Insider.