Kowal writes: "The epic battle to fill the Supreme Court seat held by
Justice Antonin Scalia has progressives fantasizing about the first liberal
high court majority in more than 40 years. In fact, it's a moment of great
peril for progressives and the issues they care about - greater than most
people acknowledge."
Justice Antonin Scalia. (photo: Haraz Ghanbari/AP)
Republicans Say They Want to Nominate Another Scalia. But They Don't Mean It
By John F. Kowal, Brennan Center for Justice
19 March 16
The epic battle to fill the Supreme Court seat held by Justice Antonin
Scalia has progressives fantasizing about the first liberal high court
majority in more than 40 years. In fact, it's a moment of great peril for
progressives and the issues they care about - greater than most people
acknowledge.
Everyone knows the stakes are high. On a range of closely contested issues,
from affirmative action to voting rights to reproductive freedom, the
Court's conservatives have lost their decisive fifth vote. Senate
Republicans wasted no time in announcing they would not consider any nominee
put forth by President Obama. Their gambit is obvious: run out the clock and
hope a Republican president can fill the vacancy with another conservative.
That has not stopped the president from nominating a highly qualified
candidate. Merrick Garland is a highly respected, moderate judge who enjoyed
broad Republican support when he was confirmed to a seat of the federal
appeals court for the District of Columbia, considered the second highest
court in the land. If Senate Republicans make good on their blockade, it
could fall to Obama's successor to shape the Court for a generation.
But while some commentators believe Hillary Clinton or Bernie Sanders have a
clear path to the White House - and a progressive will ultimately fill the
seat - as we've seen in this topsy-turvy election cycle, anything can
happen.
For decades, Republican presidential candidates have routinely promised to
nominate justices "in the mold of Antonin Scalia." In fact, given the
opportunity, the next Scalia could be far worse.
Over his three decades on the Court, Scalia was an attention-grabbing,
polarizing figure. But that should not be confused with actual influence. He
was a colorful public intellectual and a reliably conservative vote, to be
sure. But when it came to cobbling together majorities on the nine-member
Court, he showed himself to be a purist - happier writing caustic dissents
than compromising. He rarely brought the other justices over to his point of
view. And his crotchety side - evidenced by insensitive comments toward LGBT
people, African Americans, and others - undermined his credibility.
Conservatives wouldn't settle for another Scalia. As it happens, a President
Trump or President Cruz would have the opportunity to make a far more
radical and effective pick - and wouldn't have to look very far to find one.
There is a whole farm team of deeply conservative judges, appointed by
George W. Bush, waiting for their shot at the big leagues.
After the contested presidential election of 2000, when five Republican
Supreme Court appointees halted the Florida recount to hand the White House
to the Republican candidate, the Bush administration made judicial
nominations a top priority. It partnered with the Federalist Society, which
had come into its own as a sophisticated network of conservative legal
scholars, practitioners, and students with a membership in the thousands.
Promising young law students, who joined Society chapters in the 1980s,
spent their formative years in the bubble of a conservative legal movement
that mentored and moved them into positions of influence. The Society honed
a model designed to operate, in the words of legal affairs reporter David
Margolick, as "a sort of judicial hatchery, spawning and cultivating
reliably conservative judges and their reliably conservative law clerks."
Bush moved quickly to make a number of controversial nominations, pleasing a
base that cares deeply about the courts. When Democratic senators
filibustered a handful of the most extreme nominees, the Bush administration
orchestrated a showdown. The clash came to a head in the "nuclear option"
battle of 2005, when then-Majority Leader Bill Frist threatened to eliminate
the filibuster. In the bipartisan "Gang of 14 Compromise," the judicial
filibuster won a brief reprieve. (The Democrats finally eliminated it, for
certain nominees, in 2013 in response to Republican stalling tactics.) And
three nominees strenuously opposed by the Democrats were given a path to
confirmation.
Donald Trump has already identified one of these three especially
controversial appointees, appeals court judge William Pryor, as an ideal
Supreme Court pick.
Pryor first made a name for himself as Alabama's attorney general, the
nation's youngest. He was a zealous crusader for states' rights, most
notably through a campaign to roll back the post-New Deal legal consensus
that gives Congress the power to regulate the economy and promote social
justice. After Bush nominated him, a reporter described Pryor as "a B-52
candidate" - not the more conventional stealth candidate - "who has spent
his career flying high, carpet-bombing the landscape with conservative views
on federalism, abortion, church-state separation and a host of crime and
punishment issues." Since joining the federal bench, Pryor has been as
conservative as his detractors feared, upholding voter ID laws, approving of
sectarian prayers at county commission meetings, and supporting religious
exceptions to the Affordable Care Act's contraception mandate.
Trump has also floated federal appeals judge Diane Sykes, a Bush appointee
who staked out a place on the Wisconsin Supreme Court's far right flank.
While not filibustered, her nomination engendered controversy. On the
federal bench, she has stood out for her conservative jurisprudence. Her
rulings on Obamacare's birth control mandate and religious freedom have been
hailed by the religious right. And she delighted the gun lobby with her vote
against Chicago's ban on gun firing ranges.
In naming these two prospects, Trump is sending a signal to a GOP base that
cares deeply about the courts. There is little reason to think he won't
deliver. If he doesn't choose Pryor or Sykes, he can look to other Bush
appeals judges, including Jeffrey Sutton who, in the remarkable run of
federal court cases expanding marriage equality after the Supreme Court's
Windsor decision, wrote the only appeals court opinion upholding a state
marriage ban. The Supreme Court overruled him in last year's landmark
marriage equality case, Obergefell v. Hodges. Or Janice Rogers Brown, who
called the post-New Deal regulatory state "the triumph of our socialist
revolution."
Does Trump have a fully developed theory of constitutional interpretation?
Probably not. But as the presumptive GOP standard bearer, looking to shore
up crucial constituencies within his party, he will do what previous
candidates have done: promise the base that the judiciary will stay in
conservative hands. He may very well have the opportunity to make more than
one appointment. On Inauguration Day 2017, three of the remaining eight
justices will be 78 years or older.
So - in a less rosy scenario for progressives - the next four years may
resemble Richard Nixon's first term, which locked in four decades of
conservative domination of the Supreme Court.
Then, as now, a Democratic president nominated a new justice in the last
year of his term when Chief Justice Earl Warren announced his intention to
retire. Then, as now, the Senate balked. Once elected, Nixon not only had
the opportunity to fill the held over vacancy, appointing a new chief
justice in 1969, he went on to appoint three other justices that term,
moving the Court on a rightward trajectory that has continued to the present
day.
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Justice Antonin Scalia. (photo: Haraz Ghanbari/AP)
https://www.brennancenter.org/analysis/republicans-say-they-want-nominate-an
other-scalia-they-dont-mean-ithttps://www.brennancenter.org/analysis/republi
cans-say-they-want-nominate-another-scalia-they-dont-mean-it
Republicans Say They Want to Nominate Another Scalia. But They Don't Mean It
By John F. Kowal, Brennan Center for Justice
19 March 16
he epic battle to fill the Supreme Court seat held by Justice Antonin
Scalia has progressives fantasizing about the first liberal high court
majority in more than 40 years. In fact, it's a moment of great peril for
progressives and the issues they care about - greater than most people
acknowledge.
Everyone knows the stakes are high. On a range of closely contested issues,
from affirmative action to voting rights to reproductive freedom, the
Court's conservatives have lost their decisive fifth vote. Senate
Republicans wasted no time in announcing they would not consider any nominee
put forth by President Obama. Their gambit is obvious: run out the clock and
hope a Republican president can fill the vacancy with another conservative.
That has not stopped the president from nominating a highly qualified
candidate. Merrick Garland is a highly respected, moderate judge who enjoyed
broad Republican support when he was confirmed to a seat of the federal
appeals court for the District of Columbia, considered the second highest
court in the land. If Senate Republicans make good on their blockade, it
could fall to Obama's successor to shape the Court for a generation.
But while some commentators believe Hillary Clinton or Bernie Sanders have a
clear path to the White House - and a progressive will ultimately fill the
seat - as we've seen in this topsy-turvy election cycle, anything can
happen.
For decades, Republican presidential candidates have routinely promised to
nominate justices "in the mold of Antonin Scalia." In fact, given the
opportunity, the next Scalia could be far worse.
Over his three decades on the Court, Scalia was an attention-grabbing,
polarizing figure. But that should not be confused with actual influence. He
was a colorful public intellectual and a reliably conservative vote, to be
sure. But when it came to cobbling together majorities on the nine-member
Court, he showed himself to be a purist - happier writing caustic dissents
than compromising. He rarely brought the other justices over to his point of
view. And his crotchety side - evidenced by insensitive comments toward LGBT
people, African Americans, and others - undermined his credibility.
Conservatives wouldn't settle for another Scalia. As it happens, a President
Trump or President Cruz would have the opportunity to make a far more
radical and effective pick - and wouldn't have to look very far to find one.
There is a whole farm team of deeply conservative judges, appointed by
George W. Bush, waiting for their shot at the big leagues.
After the contested presidential election of 2000, when five Republican
Supreme Court appointees halted the Florida recount to hand the White House
to the Republican candidate, the Bush administration made judicial
nominations a top priority. It partnered with the Federalist Society, which
had come into its own as a sophisticated network of conservative legal
scholars, practitioners, and students with a membership in the thousands.
Promising young law students, who joined Society chapters in the 1980s,
spent their formative years in the bubble of a conservative legal movement
that mentored and moved them into positions of influence. The Society honed
a model designed to operate, in the words of legal affairs reporter David
Margolick, as "a sort of judicial hatchery, spawning and cultivating
reliably conservative judges and their reliably conservative law clerks."
Bush moved quickly to make a number of controversial nominations, pleasing a
base that cares deeply about the courts. When Democratic senators
filibustered a handful of the most extreme nominees, the Bush administration
orchestrated a showdown. The clash came to a head in the "nuclear option"
battle of 2005, when then-Majority Leader Bill Frist threatened to eliminate
the filibuster. In the bipartisan "Gang of 14 Compromise," the judicial
filibuster won a brief reprieve. (The Democrats finally eliminated it, for
certain nominees, in 2013 in response to Republican stalling tactics.) And
three nominees strenuously opposed by the Democrats were given a path to
confirmation.
Donald Trump has already identified one of these three especially
controversial appointees, appeals court judge William Pryor, as an ideal
Supreme Court pick.
Pryor first made a name for himself as Alabama's attorney general, the
nation's youngest. He was a zealous crusader for states' rights, most
notably through a campaign to roll back the post-New Deal legal consensus
that gives Congress the power to regulate the economy and promote social
justice. After Bush nominated him, a reporter described Pryor as "a B-52
candidate" - not the more conventional stealth candidate - "who has spent
his career flying high, carpet-bombing the landscape with conservative views
on federalism, abortion, church-state separation and a host of crime and
punishment issues." Since joining the federal bench, Pryor has been as
conservative as his detractors feared, upholding voter ID laws, approving of
sectarian prayers at county commission meetings, and supporting religious
exceptions to the Affordable Care Act's contraception mandate.
Trump has also floated federal appeals judge Diane Sykes, a Bush appointee
who staked out a place on the Wisconsin Supreme Court's far right flank.
While not filibustered, her nomination engendered controversy. On the
federal bench, she has stood out for her conservative jurisprudence. Her
rulings on Obamacare's birth control mandate and religious freedom have been
hailed by the religious right. And she delighted the gun lobby with her vote
against Chicago's ban on gun firing ranges.
In naming these two prospects, Trump is sending a signal to a GOP base that
cares deeply about the courts. There is little reason to think he won't
deliver. If he doesn't choose Pryor or Sykes, he can look to other Bush
appeals judges, including Jeffrey Sutton who, in the remarkable run of
federal court cases expanding marriage equality after the Supreme Court's
Windsor decision, wrote the only appeals court opinion upholding a state
marriage ban. The Supreme Court overruled him in last year's landmark
marriage equality case, Obergefell v. Hodges. Or Janice Rogers Brown, who
called the post-New Deal regulatory state "the triumph of our socialist
revolution."
Does Trump have a fully developed theory of constitutional interpretation?
Probably not. But as the presumptive GOP standard bearer, looking to shore
up crucial constituencies within his party, he will do what previous
candidates have done: promise the base that the judiciary will stay in
conservative hands. He may very well have the opportunity to make more than
one appointment. On Inauguration Day 2017, three of the remaining eight
justices will be 78 years or older.
So - in a less rosy scenario for progressives - the next four years may
resemble Richard Nixon's first term, which locked in four decades of
conservative domination of the Supreme Court.
Then, as now, a Democratic president nominated a new justice in the last
year of his term when Chief Justice Earl Warren announced his intention to
retire. Then, as now, the Senate balked. Once elected, Nixon not only had
the opportunity to fill the held over vacancy, appointing a new chief
justice in 1969, he went on to appoint three other justices that term,
moving the Court on a rightward trajectory that has continued to the present
day.
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http://e-max.it/posizionamento-siti-web/socialize
