Tracking the latest developments in the fight for a fair America
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.
Feinstein’s proposal may sound unremarkable to hardworking Americans who do their jobs every day without fanfare or prodding, but for this Republican-led Senate the idea of doing actual work feels revolutionary. 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. Read more
The Senate Republicans’ refusal to consider Supreme Court nominee Merrick Garland has forced the country into a perilous state of legal uncertainty. One of the Supreme Court’s most important duties is to ensure nationwide uniformity and consistency on important questions of federal law, including the meaning and scope of constitutional rights. When circuit courts reach conflicting conclusions about the law—generating a “circuit split”—the Supreme Court is often quick to step in, providing clarity with a definitive interpretation.
But with only eight justices, the Supreme Court can find itself deadlocked in a four-four tie. By rule, a tie vote affirms the lower court that heard the case before it was appealed to the Supreme Court. But unlike a decision where a majority of the voting justices set a binding, nationwide precedent, a tie leaves the disputed legal question unresolved, as if the Court never heard the case at all. That means that people who live in circuits that have yet to decide the issue don’t know what the law is, and elsewhere the same law has different meanings based solely on geography. Read more
There’s no denying that the current Supreme Court is closely divided on some of the most important legal questions it faces. Before Justice Scalia’s death in February, that division manifested itself in 5-4 decisions, usually with the four liberal justices (Ginsburg, Breyer, Sotomayor, and Kagan) dissenting from the conservative justices’ (Roberts, Scalia, Kennedy, Thomas, and Alito) position in cases dealing with issues such as class actions, voting rights, and the death penalty.
Now with Justice Scalia absent and Senate Republicans refusing to replace him, the Court is left in a perilous state of dysfunction. Without a fifth vote to break a tie on contentious issues, the justices can end up deadlocked and unable to answer legal questions that are dividing courts across the country. That usually means issuing a passive per curiam opinion “by an equally divided Court” that simply affirms the lower court and resolves nothing. Read more
Tonight the Senate will vote on the nomination of Paula Xinis to be a district court judge in Maryland. It is just the seventh confirmation vote on a judge this year, and Xinis, who is endorsed by both Maryland senators and has been rated “unanimously well qualified” by the American Bar Association, should be easily confirmed. When senators cast their votes, they will of course determine whether Xinis will serve as a trial court judge. But their votes will also speak to a broader question about our federal judiciary and the legal profession: If a lawyer spends her career representing marginalized, vulnerable populations against powerful interests—if, for example, she declines the high pay of corporate law and the prestige of a U.S. Attorney’s office to work as a public defender—is she disqualified from serving as a judge?
There’s always been an air of desperation around right-wing attempts to smear Judge Merrick Garland’s judicial record. Unable to find actual evidence that Judge Garland is anything but a fair-minded jurist who upholds the rule of law, his critics have resorted to either gross mischaracterizations of his decisions, or attacks manufactured out of thin air—making assumptions about his views based on the bare fact that President Obama nominated him rather than actual cases (and he has 19 years’ worth to choose from).
But things went from desperate to absurd when the National Federation of Independent Business (NFIB), a front group for the Kochs and other corporate interests, went after Judge Garland over a case in which Judge Garland and Justice Scalia (along with every member of the Supreme Court at the time, including Chief Justice Rehnquist and Justice Thomas) came out precisely the same way.