Guest Post

  • March 30, 2017
    Guest Post

    *This piece originally appeared on The Huffington Post

    by Christopher Kang, National Director, National Council of Asian Pacific Americans

    Many Senate Democrats believe that a Supreme Court nominee should be within the mainstream and therefore able to earn the support of 60 Senators. Given the stakes, this hardly seems unreasonable, but Republicans now claim that a 60-vote threshold for judicial nominees would be unfair. Here are the 12 times they insisted on a 60-vote threshold for Obama’s lower court nominees—and, really, once Republicans demanded that a trial court judge in Rhode Island needed 60 votes, shouldn’t Democrats be able to ask for the same for the highest court in the land?

    • Senate Republicans filibustered D.C. Circuit nominee Caitlin Halligan (twice) and 9th Circuit nominee Goodwin Liu, even though both had majority support.
       
    • Senate Republicans filibustered 10th Circuit nominee Robert Bacharach of Oklahoma, even though he was supported by both of his Republican home-state Senators, Inhofe and Coburn. His nomination was not controversial (as evidenced by his 93-0 confirmation eight months later) but Republicans set an arbitrary cut-off date for confirmations during the 2012 presidential election year—similar to their historic mistreatment of Judge Merrick Garland’s nomination to the Supreme Court last year.
       
  • March 29, 2017
    Guest Post

    by Adam Kenworthy, Chapter Chair of ACS Iowa Lawyer Chapter

    It is easy to get distracted right now by the overwhelming pace of the news cycle. And as attorneys and ACS leaders, it is hard to figure out exactly where to focus one’s attention at any given time. However, it is important for all of us who are committed to serving the larger principles of our system not to underestimate where we are at this pivotal moment, and how tenuous our system really is. And as attorneys, we need to recognize our role as advocates and strategists, and how these roles can help to provide balance and expertise where it is needed most.

    This past week Judge Gorsuch’s confirmation hearings began--among other things--and groups like ACS tried to help draw attention to this process. Many respected attorneys and scholars have put forth sound arguments why Judge Gorsuch’s positions are too extreme for the Court and why he should not be confirmed. But the real issue that needs to be addressed is the corruption of the process itself.  

    Last year when Senate Republicans refused to hold confirmation hearings for Merrick Garland, based on their reasoning that the Constitution should apply differently to President Obama, a line was crossed that cannot be redrawn. Senate Republicans believed they had to burn down the institution in order to save it--at least to preserve it for their own short-term political calculation. And in making that determination, the first time in American history, the party of supposed conservative originalists, decided to abandon text and tradition in order to meet their short-term political goals.

    The tactic worked, but at what cost? 

  • March 24, 2017
    Guest Post

    by Jeremy Leaming, Director of Communications, National Health Law Program

    Despite growing public opposition to the so-called American Health Care Act (AHCA), House Republicans are striving to unite behind the bill that includes provisions that not only repeal the Affordable Care Act, but gut Medicaid, shifting health care costs to state governments and cutting off health care coverage to tens of millions of Americans. At this moment the measure is still being tweaked to please hardcore conservatives whose only agenda is to kill entitlement programs and pass laws that coddle the wealthy.

    In the House, the Tea Party faction called the Freedom Caucus, has been agitating for a full repeal of the ACA, including its Medicaid expansion. Although the faction appears to be balking at these efforts, it seems safe to assume that House Republicans will eventually unite behind this atrocity. If by chance the bill would die in the House or languish in the Senate, Politico’s Dan Diamond notes that the Trump administration will continue to do serious damage to the ACA.

    Increasingly the media and public have caught on to the fact that House Republicans are seeking more than just a repeal of the President Obama’s landmark health care reform law – one that has brought health care coverage to more than 20 million Americans and dropped uninsured rates to the lowest in 50 years. The AHCA includes provisions that would end Medicaid as we know it. The National Health Law Program, which has defended Medicaid for almost 50 years, has provided numerous reports on the provisions in AHCA that would affect Medicaid. For example AHCA envisions ending Medicaid as an entitlement program by slashing its federal funding either with per capita caps or block grants. Mara Youdelman, managing attorney of NHeLP’s DC office, explains how per capita caps would shift health care costs to states, forcing them to cut health services and/or limit those who are eligible for Medicaid. Republicans argue that these provisions are intended to give state’s more “flexibility” in how they provide health care to low-income individuals in their states. But with far less federal funding, states will not have a lot of options – either find ways to pay for quality health care services or cut services. Many states – led by conservative lawmakers – will opt for cutting health care services.

  • March 23, 2017
    Guest Post

    by Mark S. Kende, Director of the Drake Constitutional Law Center, James Madison Chair in Constitutional Law

    Judge Neil Gorsuch finished testifying yesterday so today was made up of testimony by surrogates and opponents. Perhaps most significantly, Democratic Sen. Chuck Schumer is urging his party to filibuster the nomination. Sen. Chuck Grassley, Republican Chair of the Judiciary Committee has labeled this a smoke screen. What would be the consequences of such an action and would it be wise?

    Historically, the filibuster is most famous for being used by senators from the South seeking to block civil rights legislation. Thus it would be ironic to see the more liberal party employ this tactic. Moreover, the filibuster is a very rare specimen in the Supreme Court context. One of the only other examples was a Senate filibuster in 1968 regarding the nomination of Justice Abe Fortas to be Chief Justice, which was based on ethics concerns and political bias.

    But despite its rarity, a Democratic filibuster is completely justified by the outrageous refusal of the Republicans even to give President Obama’s nominee, the very distinguished Chief Judge Merrick Garland, a hearing. By contrast, the Democrats have shown Judge Gorsuch a huge courtesy, not shown to their nominee, in treating Gorsuch fairly and giving him extensive hearings. The Democrats have set an example of how not to be hyper-partisan and immoral. And yet Republicans still have had the chutzpa to say that a filibuster would be obstructionist. The Republicans even stole one of President Obama’s most basic executive powers from him (selecting a potential justice who would receive a fair hearing), and gave pretextual reasons for doing so. That is not just obstructionist, it was contrary to the Constitution.    

    Admittedly, a filibuster may be largely symbolic. If the Democrats keep the Republicans from obtaining 60 votes, Republican leader Mitch McConnell has said he will ensure a change in Senate rules, so that only 50 votes will be needed for Judge Gorsuch to take office. This is typical of the new Trump era -- if the Republicans are losing, they simply change the rules of the game. This may be comprehensible as raw politics, but it is shameful when the fate of the Supreme Court and the rule of law itself is at stake. 

  • March 23, 2017
    Guest Post

    *This blog post was originally testimony before the Committee on the Judiciary of the United States Senate, Hearings on the Nomination of Judge Neil Gorsuch to the Supreme Court of the United States on March 23, 2017.

    by William P. Marshall, Kenan Professor of Law, the University of North Carolina, Chapel Hill

    The Air Force is unconstitutional. Brown v. Board of Education, 348 U.S. 886 (1954), was incorrectly decided. The Equal Protection Clause does not apply to women. The First Amendment does not protect speech on the internet or prevent persons from being forced to salute the flag when it conflicts with their conscientious or religious principles. The Constitution does not require one person/one vote. There is no freedom from government intrusion into such deeply personal decisions as to whether or not to have a child. There is no right to direct the raising and educating of one’s own children. The Fifth Amendment does not require the police to inform persons charged with crimes that they have a right to counsel. The federal government may discriminate on the basis of race and ethnicity without constitutional constraint.

    These are just some of the results to which a strict adherence to “originalism” would lead. The vacancy created by the death of Justice Antonin Scalia, the Court’s most prominent proponent of organism, and the subsequent nomination of Judge Neil Gorsuch to fill that position, has once again brought the theory of “originalism” into the spotlight. It is therefore appropriate to reexamine the validity and legitimacy of originalism as a governing mode of constitutional interpretation. I will address that issue in the remarks that follow.