U.S. Politics

Mitch McConnell Didn’t Just Steal A Supreme Court Seat

Mitch McConnell Didn’t Just Steal A Supreme Court Seat

 

THE NATIONAL MEMO

When history gathers the men who made the presidency of Donald Trump possible, lingering in a corner behind the blinding glare of Julian Assange and the massive 6’8” frame of James Comey will be Mitch McConnell, his corners mouth shaped into a smile that resembles a twisted mustache.

McConnell will want you to believe that history owes him credit for his strategic brilliance. And it’s undeniable that his campaign of massive obstruction topped off by the historic robbery of a Supreme Court seat, helped unite a GOP that was fracturing like a fissured fibula and make Trump’s improbable rise to the White House possible.

The Senate Majority Leader calls not allowing the appointment of Merrick Garland, President Obama’s pick to replace Antonin Scalia on the Supreme Court, a fair hearing “the most consequential decision I’ve ever been involved in.” And as usual, he’s being both self-congratulatory and deceptive.

Yes, Trump did better with evangelical voters than Mitt Romney, John McCain and even an actual evangelical George W. Bush, according to an analysis from Pew.

This is a result so unlikely that it’s almost unmistakable from satire.

Trump is a thrice married accumulator of failed casinos, stolen valor from other people’s charity and sexual harassment allegations. For him to even be nearly as competitive with the religious right as devout believers like Romney and Bush or even McCain, who the poster boy for the Reagan Revolution, is a monumental victory for both hypocrisy and tactical politics. Trump proved that the right’s feigned concerns for other people’s marriages was absolutely negotiable as long what it was offered in return was up to four revanchist Supreme Court Justices who will reshape and regress America for as long as half a century.

McConnell understands that since Brown v. Board of Education, the Court has been the defining issue for a conservative movement that fully comprehends our justice system’s power to remake or restore old biases. Holding a seat as a lure for the right was an opportunity Trump seized by putting out a list of Heritage Foundation-approved Justices and picking Mike Pence, a walking proof point for the argument that his agenda could be captured by the religious right.

It was a brilliant strategy from a man who has led a movement that recognizing the dusk of its demographic advantages decided to drop all pretenses of pomp and statesmanship for the pure embrace of power politics.

The Senate minority led by McConnell used the filibuster to block 79 of Obama’s nominees by 2013. That’s 79 in less than five five years, “compared with 68 in the entire previous history of the Republic,” Dana Milbank notes. When Senate Republicans refused to confirm anyone to the D.C. appeals court just after President Obama became the first president elected with 51 percent of the popular vote twice, Senate Democrats went nuclear and ended the filibuster for all appointments, except the Supreme Court. McConnell completed the nuclear fallout he made inevitable last week by denying the minority the right to block a young far right Justice selected by a man who lost the popular vote by 3 million usurping an older compromise pick from a genuinely popular president.

McConnell sees shredding of tradition as no vice in the pursuit of preserving privilege.

Nothing was going to stop him from taking Garland’s seat — not even the interference of a foreign government in our election.

This takes us to what Brian Beutler reveals as the real mostconsequential decision of McConnell’s career” and that’s the decision to shut down any attempt to make the public aware of Russia’s interference into our elections, which had been invited and embraced by Trump himself.

Beutler notes that “leaders of the U.S. intelligence community sought a united front ahead of the fall against Russian election interference—whatever its nature—and McConnell shot it down.” And not only shot it down, promised to impugn any effort to expose Putin’s efforts as false and partisan. This was threat that the Obama Administration calculated would harm both the Clinton campaign and the fabric of our democracy.

“The upshot is that McConnell drew a protective fence around Russian efforts to sabotage Clinton’s candidacy, by characterizing any effort to stop it as partisan politicization of intelligence at Trump’s expense,” Beutler wrote.

So as the FBI investigated a presidential campaign for possible collusion with foreign power, the public only learned of the possible existence, in the days just before the election, of some emails that may have validated the hazy, wild accusations being flung at Hillary Clinton by Donald Trump and his foreign allies.

Rather than broaden its message or revamp its failed policies, the GOP has declared war on democracy. And when history notes who made this strategy and unchecked madman it elected possible, much of the credit should go to Mitch McConnell.

That will be one thing he didn’t steal.

U.S. Politics

The United States Senate is a failed institution (Opinion)

CREDIT: AP Photo/J. Scott Applewhite

THINK PROGRESS

It’s a malapportioned, anti-democratic embarrassment.

Let’s briefly take stock of what’s about to happen in the U.S. Senate.

A president who lost the popular vote by 2,864,974 nominated Neil Gorsuch to serve a lifetime appointment on the nation’s highest Court. Although a bloc of senators representing at least 53 percent of the country oppose this nominee, Gorsuch is all but certain to be confirmed — after a bit of a showdown over the Senate’s rules.

Gorsuch’s confirmation will come more than a year after President Obama — a president who won the popular vote, twice — nominated Merrick Garland to the same vacant seat on the Supreme Court. At the time, Democratic senators represented over 53 percent of the nation. Yet Garland was not confirmed because, in the bizarre kind of math that exists in the U.S. Senate, 53 percent support only earned the Democratic caucus 46 percent of the Senate’s seats.

This is hardly an unusual event in the Senate’s history. The Senate is the product of a compromise that, while it made sense at the time, rested on assumptions that haven’t been true for more than a century. It was an early bulwark for southern slaveholders and a firewall protecting Jim Crow. One of its most defining traits, the filibuster, was invented accidentally by the villain in a popular Broadway musical.

The Senate is a relic, wrapped in a mistake, wrapped in a toxic dose of sanctimony.

Sen. Joe Manchin (D-WV) is one of the few Democrats who will not vote to filibuster Gorsuch’s nomination. He explained to reporters that he doesn’t want to goad Senate Republicans into eliminating filibusters of Supreme Court nominees, which they are expected to do after Gorsuch is filibustered.

“People who have been here for a long time know that we’re going down the wrong path here,” Manchin claimed. “The most unique political body in the world, the United States Senate, will be no more than a six-year term in the House.”

Manchin may be right that the Senate is the world’s most unique political body, but it is unique in the same way that Guy’s American Kitchen & Bar is a unique restaurant, or that Nickelback is a unique band. The Senate is theShowgirls of legislative chambers, the Miller Clear Beer of lawmaking bodies. It’s past time someone put it to sleep.

How we got into this mess

“We hold these truths to be self-evident,” Thomas Jefferson famously wrote in the document that set 13 British colonies on the path to independence, “that all men are created equal.” Eleven years later, several of the same men who signed this Declaration of Independence joined the delegates to America’s constitutional convention — where they promptly cast aside any pretense that the United States is dedicated to the notion that all people are equal.

The Founding Fathers betrayed the Declaration’s promise with a Constitution that explicitly protected the institution of slavery. But they also betrayed it with the Senate, which treats residents of small states as more worthy of representation than residents of larger states.

In fairness, there’s a good explanation for why delegates from larger states were willing to trade away their right to equal representation in the national legislature. The Articles of Confederation, which proceeded the Constitution, was less a charter for a single nation and more akin to NATO, or perhaps the European Union. As Yale law professor Akhil Amar explains, the Articles were “an alliance, a multilateral treaty of sovereign nation-states.”

Under the Articles, Congress could neither tax individuals directly, raise troops, or provide for an army — a matter of great annoyance to General George Washington. The 13 former colonies largely functioned as their own independent nations.

The Senate is a relic, wrapped in a mistake, wrapped in a toxic dose of sanctimony.

Yet, while the United States’ first experiment in unity was more treaty than Union, early American leaders were both well-versed in European history and fearful of the warfare than inevitably results when rival nations share geographic borders. The Constitution was thus an effort to solve two problems at once: to bind the 13 states together in a manner that would keep them from warring with each other, but also to ensure that this Union had real authority over its citizens.

Understood in this context, the Great Compromise that led to the Senate makes sense. Large states like Pennsylvania and New York feared war with their neighboring states more than they feared being outvoted in the Senate. Small states had a stronger claim to equal representation when they were conceived of as independent nations and not simply a collection of individual citizens. And, in any event, the malapportioned Senate would be less dysfunctional that the loose collection of separate nations joined together under the Articles of Confederation.

Yet, whatever the logic of this compromise in 1787, a lot has changed since then. The United States has a coherent national identity. Rhode Island has little to fear from the conquering armies of nearby Massachusetts. Utah is not going to fight a war with Colorado.

And yet the Senate persists, treating each resident of Wyoming as 67 times more worthy than each resident of California, despite the fact that the circumstances that birthed the Senate no longer exist.

The slaveholder’s house

Not long after the Constitution was ratified, slaveholders discovered that they had a problem — most of the nation lived in free states. By the early 1820s, free states controlled 105 of the 187 seats in the House of Representatives — and that’s after you account for the fact that the Three-Fifths Compromisepermitted slave states to count 60 percent of their enslaved and disenfranchised population when it came time to allocate seats in the House.

If the House were the only game in town, in other words, it could conceivably have banned the slave trade — or at least taken fairly aggressive steps to hobble the South’s “peculiar institution.”

The South’s fears came to a head in 1819, when an obscure New York congressman introduced amendments to legislation admitting Missouri as a state, which would have banned any expansion of slavery within Missouri and required that all new children born into slavery be freed at age 25. Among other things, if Missouri were admitted into the Union on these terms, free states would have gained a majority in the Senate.

The response, as Princeton historian Sean Wilentz writes, was “blistering.” Southern lawmakers “virtually threatened secession were the amendments approved.” Northerners united behind the amendments in the House, pushing them across the finish line to passage.

Nevertheless, the amendments were ultimately defeated in the Senate, after five northern senators crossed over to vote with a unified South. Missouri was eventually admitted to the Union as a slave state, under the terms enacted through the so-called Missouri Compromise.

The Senate, however, truly came into its own as a savior for Southern racists in the century following the Civil War.

In 1875, Reconstruction was on its last legs. Democrats, then the party most sympathetic to Southern whites, recently regained control of the House of Representatives. When Mississippi Democrats staged a violent uprising to seize control of their state, President Grant did not send troops to intervene. Within just two years, Republican Rutherford B. Hayes would sell out African Americans in the South in order to secure his own election — trading the end of Reconstruction for the presidency.

Yet, even as white supremacists tightened their grip on the old Confederacy, Congress, several senators elected under Reconstruction governments had not yet completed their terms. As racist mobs marched through the state, Mississippi still had two Republican senators in 1875 — one of whom, Sen. Blanche Bruce, was a black man.

1875 was thus the last year until midway through the next century that Congress enacted a civil rights law of any kind. The Civil Rights Act of 1875 prohibited racial discrimination by “inns, public conveyances on land or water, theaters, and other places of public amusement,” though this provision was soon struck down by the Supreme Court.

The reason why no new civil rights bill emerged from Congress until 1957 was the Senate. Though five such bills cleared the House in the 12 years following World War II alone, Senate malapportionment gave the southern senators far more influence over the legislative process than their states’ population could justify.

That, combined with another peculiarity of the Senate, was enough to halt civil rights in its tracks.

Talk less, smile more

This is an impolitic time for a liberal news site to discuss the history of the filibuster. A bloc of Democrats comprising a majority of the nation but a minority of the seats in the Senate hope to keep a very conservative judge off the Supreme Court through a filibuster. Republican leaders hope to block this maneuver by eliminating filibusters of Supreme Court nominees. Having endured under the filibuster for so many years, the United States would undoubtedly be better off if the filibuster survives just a little bit longer until the Gorsuch nomination is defeated.

Yet, while the senators hoping to filibuster Gorsuch represent a majority of the nation, this state of affairs is fairly unusual. The filibuster played a major role in Southern senators’ efforts to halt civil rights legislation. It played a similar role in a Republican minority’s efforts to shut down the only agency that can enforce much of federal labor law in 2013, and it was the centerpiece of Republican efforts to sabotage the Consumer Financial Protection Bureau before it was even operational. The last time the Senate erupted into a nuclear showdown over the filibuster, a Republican minority tried to prevent President Obama from confirming anyone to a powerful appeals court in Washington, DC.

Far more often than not, in other words, the filibuster thwarts democracy rather than reinforcing it. It cheated African Americans out of their full status as citizens. It threatened to dismantle entire agencies, despite the fact that Congress passed no law permitting this to happen. If the filibuster rules do change this week, Democrats should lament the rise of Neil Gorsuch, but they should not weep to see one of the most anti-democratic aspects of the Senate suffer another cut.

The filibuster’s very existence is an historic accident arising from one of Aaron Burr’s final acts as vice president. As Brookings political scientist Sarah Binder recounts the history, the lame duck vice president returned to the Senate in 1805, fresh off his indictment for killing Alexander Hamilton. There, as the Senate’s presiding officer, he told the senators that their rule book was too complicated and had too many duplicative procedures. One process in particular, the “previous question motion,” Burr deemed especially worthy of removal.

And the Senate believed him. They eliminated this motion the next year.

It turned out, however, that the previous question motion was not superfluous, it was a motion that enabled senators to cut off debate on a subject when a minority wanted to keep that debate going. Thus, by eliminating the motion, Burr effectively enabled dissenters to delay a vote indefinitely by forcing the Senate to “debate” it until the majority gave up.

No one actually attempted this until 1837, when “a minority block of Whig senators prolonged debate to prevent Andrew Jackson’s allies from expunging a resolution of censure against him.” But filibusters grew increasingly common over most of the following century and in 1917, the Senate amended its rules to permit a two-thirds supermajority to end debate. This threshold was eventually lowered to 60 senators, and later to 51 senators for confirmation votes not involving Supreme Court nominees.

In any event, one of the Senate’s most distinctive features, the filibuster, is not part of some grand vision of minority rights handed down from up on high to the Founding Fathers. It is an accident, created by a lame duck vice president and a body of senators who did not understand what they were doing.

Can it be fixed?

In its inception, the Senate had two anti-democratic features. It is malapportioned, and its members were originally selected by state legislatures, not by the voters themselves. As explained above, it soon developed a third major anti-democratic feature, the filibuster.

The good news, for those of us who believe that the right to govern should flow from the will of the people, is that the Senate has gotten better over time. The Seventeenth Amendment provides for direct election of senators. The filibuster is part-way through a process that is likely to end in its demise.

Nevertheless, curing the Senate’s greatest sin against democracy — the fact that it treats a person from California as 1/67th of a person from Wyoming — will be a much heavier lift.

Although the Constitution provides two processes for amendments, these processes come with two caveats. No amendment could be made prior to 1808 curtailing the slave trade, and “no state, without its consent, shall be deprived of its equal suffrage in the Senate.”

Theoretically, there are ways around this problem. The United States could ratify two amendments to the Constitution — one permitting amendments to the Senate’s makeup and another actually changing that makeup or abolishing the Senate. Or, alternatively, a single amendment could leave the Senate in place as a malapportioned body, but reduce its authority so that it becomes an advisory body similar to the British House of Lords.

The problem with these solutions, however, is that any amendment requires the consent of three-fourths of the states, and it is unlikely that the states that benefit from malappointment will vote to reduce their own power.

So that leaves one last option, a constitutional revolution. And there is one very significant precedent for such radical change.

Under the Articles of Confederation, amendments were only permitted with the unanimous consent of the states. Nevertheless, a new Constitution was drafted in Philadelphia which, by its own terms, became effective upon “the ratification of the conventions of nine states.” The Constitution of the United States is, in this sense, unconstitutional.

We the People could once again invoke a similar process to create a more democratic union — one that is not only free of Senate malapportionment, but also free of other anti-democratic aspects of our present system such as partisan gerrymandering and the Electoral College.

I have no illusions that this will happen any time soon, but it is likely the only way that the United States can become a truly democratic republic — one where everyone’s vote counts equally, regardless of where they live.

Ian Millhiser

U.S. Politics

Trump’s chief policy advisor says the president’s power ‘will not be questioned’ by the courts

Stephen Miller, policy adviser to President-elect Donald Trump arrives at Trump Tower in New York, Monday, Jan. 9, 2017. CREDIT: AP Photo/Evan Vucci

THINK PROGRESS

Senior White House Policy Advisor Stephen Miller raised plenty of eyebrows on Sunday as the perused the talk-show circuit talking about cases of voter fraud (that don’t exist) and Steve Bannon’s lack of involvement in drafting executive orders (which, according to most reports, is the exact opposite of the truth).

But perhaps his most alarming statement was in reference to the federal judges in Washington rejecting President Donald Trump’s Muslim ban.

“I think that it’s been an important reminder to all Americans that we have a judiciary that has taken far too much power and become in many cases a supreme branch of government,” Miller told John Dickerson of CBS News, as first noted by Will Saletan of Slate. “The end result of this, though, is that our opponents, the media, and the whole world will soon see, as we begin to take further actions, that the powers of the president to protect our country are very substantial and will not be questioned.”

Miller’s boss was, unsurprisingly, watching his performance, and gave the 31-year-old rave reviews.

Trump has been livid ever since a federal judge first blocked his Muslim ban, and he has taken his anger out on the nation’s court system by consistently undermining and questioning its power.

Last weekend, to kick off another volatile week of the Trump presidency, the White House called the judge’s order “outrageous” and Trump tweeted on Saturday that the “so-called judge” had made a “ridiculous” ruling. He went on to say that the judge would now be responsible if there were any acts of terrorism in the country.

On Thursday evening, when the Ninth Circuit upheld the block of the ban, Trump seemed determined to take more legal actions. However, the ban is not currently being appealed to the Supreme Court; instead, it has been reported that the ban will be rewritten.

Trump’s frequent belittling of the court system has reminded many prominent officials of authoritarian rule.

Lindsay Gibbs

U.S. Politics

President Trump: A colossal failure for democracy, and our terrifying new reality

President Trump: A colossal failure for democracy, and our terrifying new reality

AP Photo/Paul Sancya

SALON

It’s impossible to overstate how colossal a fuck-up this is. At every level, across both parties, the media, pollsters — all the democratic institutions that are supposed to prevent something like this from happening, or at least warn us about it. Donald Trump, a candidate who ran an openly racist campaign, who is as proud a misogynist as you’ll find anywhere, who is manifestly ignorant of public policy, who is brusquely authoritarian, who has little respect or understanding of democratic norms, and who embodies every moral failing that’s supposed to disqualify a candidate from higher office, has apparently been elected the next president of the United States.

The markets are collapsing, the globe is reeling, and nobody can quite explain what the hell happened. But here’s what this failure will mean. The climate, which is warming precipitously, is now guaranteed to continue along that trajectory toward global catastrophe. The millions of people who gained health coverage over the last half decade are now at acute risk of being thrown off their insurance and left to the unfeeling mercies of health underwriters. Income inequality, already at dangerously high levels, will only grow worse as tax cuts for the rich and spending cuts for the poor are pushed through the Republican Congress. Unprecedented GOP obstructionism on Supreme Court nominees has been rewarded in the worst possible way. And the foreign policy of the United States will be run by a bona fide ignoramus.

The man elected to the most powerful office in the land has no idea what to do with it and no concept of its limitations. He attracts the worst people to him, sycophants and power-hungry strivers who will be placed in positions of authority and who will obey the boss’ diktat above anything else. Every democratic norm he gleefully shredded along the way is gone for good. Every thumb in the eye of transparency will now be official policy.

All that terrifies me.

But right now those things are not what I think about when I contemplate life under President Donald Trump. This will sound trite, but primarily I think about my two boys, a two-year-old and a four-month-old. I don’t have to explain this to them because neither would understand. But if I were to tell my two-year-old what is happening, I’d do it in Spanish, because both he and his brother have deep Mexican roots that my wife and I want them to embrace and be proud of. It destroys me to know that they, that we, live in a country that seems to have chosen as its leader a person who made frenzied racial attacks on my family’s heritage the launch pad for his successful presidential run.

I think about the African-Americans, Muslims, Jews, and Latinos in this country who now face life in a country presided over by a candidate who embodies white nationalism and memorably couldn’t bring himself to disavow a former leader of the Ku Klux Klan. Children of undocumented immigrants who are U.S. citizens by birth have been told by their new president that they’ll be deported. Every refugee from Syria who was relocated here to escape war and violence will have another target on their backs. These are the people who will feel the consequences of this failure most acutely.

I have one more thing to add.

I am sorry. In my capacity as a media figure, I too often treated Trump as a joke, a bumbling incompetent, someone who obviously could not be treated seriously as a legitimate candidate for the presidency. Now I can only think that I was too hidebound by conventional wisdom, too comfortably out of touch to see what was in front of me. I succumbed to the sideshow element of this awful race more times than I can be comfortable with. I own this failure too.

Simon Maloy

U.S. Politics

5 winners and 4 losers from this Supreme Court term

Pro-choice and pro-life activists demonstrate on the steps of the United States Supreme Court on June 27, 2016, in Washington, DC. | Pete Marovich/Getty Images)

VOX  Policy & Politics

This year’s Supreme Court term was unsettling. Following the sudden death of conservative Justice Antonin Scalia earlier this year — and Senate Republicans’ refusal to fill the seat — it initially seemed the Court might take a more reserved approach.

And the justices did punt in a few areas, including birth control access, and made more convoluted decisions in other cases, but they didn’t back away from all major decisions, particularly in high-profile cases. A few clear winners and losers emerged: The Court decided on the first major abortion rights case in a generation, and essentially put an end to the Obama administration’s sweeping deferred deportation plans for undocumented immigrants.

Here’s who came out ahead this term and who may be traumatized by the sound of a gavel in the future.

Winner 1: Texas

Yeah, there were 26 states involved in suing the Obama administration over its 2014 executive actions allowing millions of immigrants to apply for “deferred action” — actions that the Supreme Court all but killed at the end of the 2016 term, when a 4-4 deadlockleft the injunction against them in place. But there’s a reason the case was called United States v. Texas: The Lone Star State was the star of the show.

Texas was the only reason the states didn’t get laughed out of court. While all the states suing the administration claimed they’d be harmed by the president’s actions, thereby giving them legal grounds to sue, Texas was the state that actually estimated the cost of expanded driver’s license access.

Because the courts don’t allow states to sue over federal policies just because they don’t like them, that made all the difference. A state-based lawsuit against Obama’s 2012 “deferred action” grants went nowhere because the states couldn’t show harm; in 2016, half the Supreme Court was willing to grant that some extra driver’s license costs in one state justified a halt to the policy in 50 of them.

Though 4-4 deadlocks don’t make precedent, the conclusion is clear: The door for states to sue the federal government over policies might be wider than it used to be, and it might depend on whether the policies are liberal or conservative. Republicans might have a hard time winning the White House in the medium term, but if deep-red states like Texas get to keep challenging policies from a Democratic White House, that’s a big win. —Dara Lind

Winner 2: Evidence

When the Supreme Court sided with abortion rights advocates in Whole Woman’s Health v. Hellerstedt, it also sided with medical evidence. It’s a bit worrisome that “siding against medical evidence” was a legitimate possible outcome in this case, but it’s true.

In Whole Woman’s Health, the Court struck down two Texas anti-abortion laws that were supposed to make abortion safer for women. Doctors and just about every major medical association you could think of said the laws actually did nothing to preserve women’s health and only served to shut down quality clinics.

But reproductive rights supporters had good reason to worry that it wouldn’t matter how strong the evidence for their case was. That’s because of precedent set in the last major abortion case heard by the Supreme Court, 2007’s Gonzales v. Carhart, which struck down so-called “partial-birth abortion.” Carhart found that lawmakers have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.”

The question was: What counts as “uncertainty”? Can state legislatures pass laws based on junk science without facing any legal repercussions by claiming the science is “uncertain”? That’s what the Fifth Circuit Court of Appeals argued when it upheld the Texas laws, citing Carhart to claim that “medical uncertainty underlying a statute is for resolution by legislatures, not the courts.”

Justice Stephen Breyer wasn’t buying it, though. He said that when it comes to the constitutionality of abortion regulations, the Court “has placed considerable weight upon evidence and argument presented in judicial proceedings.” He pointed out that Carhartalso found that the Court “retains an independent constitutional duty to review factual findings where constitutional rights are at stake.” Then he proceeded to rattle off a wealth of evidence from earlier judicial proceedings that demolished Texas’s claims that the laws benefited women’s health.

This new precedent arguably puts anti-abortion advocates in a much weaker position to restrict abortion at the state level than before Texas passed HB 2. Abortion opponents will undoubtedly keep trying other tactics to impose restrictions — but they will have a harder time convincing a court that these tactics serve a legitimate purpose other than unconstitutionally making it harder for women to get an abortion. —Emily Crockett

Winner 3: Affirmative action

The University of Texas Austin was Abigail Fisher’s dream school. But when the university rejected her application for admission in 2008, Fisher refused to take no for an answer. Rather than accept that she simply didn’t make the cut, she began a crusade arguing that the university gave her spot to an unworthy person of color because of race.

She advocated that a race-neutral, merit-based policy was necessary. Yet Fisher, who had the advantage of applying as a legacy admit, simply didn’t stand out in an especially competitive admissions cycle with her test scores, grades, and extracurricular activities,court documents showed. Additionally, 42 out of 47 students who were offered provisional slots with lower scores than Fisher were other white students.

More broadly, the Court’s decision that UT Austin’s use of race in its admissions policy is constitutional shows race-conscious admissions are here to stay — for now. Private and public universities alike are heralding the decision as a clear indication that racial and ethnic diversity remains necessary in higher education.

But as Justice Anthony Kennedy cautioned in the opinion, schools still need to seek other ways to achieve racial parity in admissions by diligently reevaluating and updating their admissions policies without tokenizing students for their racial backgrounds. This was key to UT’s admissions policy and the Court’s decision to rule in its favor. Other schools like Harvard University that are facing similar lawsuits that were stalled pending the Fisher decision will have to prove the same if they want the same outcome. —Victoria Massie

Bob McDonnell at Supreme Court

(Former Virginia Gov. Bob McDonnell leaves the Supreme Court in April | Getty Images)

Winner 4: Politicians

The specifics of former Virginia Gov. Bob McDonnell’s corruption convictions looked ugly. He and his family accepted $175,000 worth of loans and gifts — including a Rolex watch for McDonnell — from a businessman who wanted the Virginia government to help out his supplement company.

But accepting those gifts was perfectly legal in Virginia, so McDonnell instead was prosecuted for what he did in return for them. The problem, some argued, was that he didn’t actually do all that much. He contacted some state officials on the company’s behalf, set up some meetings, and arranged some events. No state money ever changed hands, and no policy was ever altered.

So many members of both parties’ legal establishments were quite troubled by his prosecution, saying it amounted to a “breathtaking expansion of public-corruption law” that “would likely chill federal officials’ interactions with the people they serve and thus damage their ability effectively to perform their duties.’” They feared that the ordinary, day-to-day work of politicians could become criminalized.

Now a unanimous Supreme Court has agreed with their objections, overturning McDonnell’s convictions — and politicians all over the country are likely breathing sighs of relief. —Andrew Prokop

Winner 5: Tribal courts

There are 175 tribal courts in the US, but there’s been little clarity on their jurisdiction outside of tribal lands. Because the lines are unclear, Dollar General has been able to evade facing a civil lawsuit filed against the company in 2005 after an employee was accused of molesting a 13-year-old Choctaw boy at a store on a Choctaw reservation two years prior.

The retailer’s argument in Dollar General v. Mississippi Band of Choctaw Indians? Recent Supreme Court cases had limited tribal courts’ inherent sovereignty, so it should also apply in this case.

In 1978’s Oliphant v. Suquamish Indian Tribe, the Supreme Court ruled that tribal courts were prohibited from reviewing criminal offenses committed by nonmembers. In 1981’sMontana v. United States, the Court ruled that native tribes generally do not have inherent sovereignty over nonmembers on their reservations with two exceptions: if nonmembers enter into “consensual relations with the tribe or its members,” and if a nonmember’s conduct threatens the tribe’s “political integrity, economic security, or health or welfare.”

The burden was on Dollar General to prove Montana didn’t apply, while also arguing theOliphant decision would apply to civil suits.

With a 4-4 non-decision, the discount retailer still may have to face its day in tribal court. But more importantly, the case is a small step toward affirming tribal courts’ authority — even if it’s based on the Supreme Court not deciding one way or the other to take more rights away. —Victoria Massie

Sonia Sotomayor

Getty Images | Supreme Court Justice Sonia Sotomayor.

Loser 1: The Fourth Amendment

The Fourth Amendment has been a loser for basically every Supreme Court session of the past 20 years. The Court hasn’t had a former criminal defense lawyer as a member in a quarter-century — perhaps unsurprisingly, it’s been much more deferential to police than “suspects.”

Arguably, this term wasn’t even as bad for the Fourth Amendment as it could have been: Last week the Court did hold that police couldn’t conduct warrantless blood tests on drivers suspected of DUI, though it maintained that warrantless breathalyzer tests were kosher.

Killing the driver, though, is apparently okay: In an 8-1 decision granting legal immunity to a police officer who shot and killed a driver as he was fleeing, the Court said it has “never found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment.” (Justice Sotomayor called the decision a license to “shoot first and ask questions later.”)

And even if an officer acted unconstitutionally, suspects can still be out of luck. The “exclusionary rule” is supposed to prevent evidence gathered unconstitutionally from being used at trial, but the Supreme Court has been chipping away at it for years, and struck it another blow at the end of this term. In Utah v. Strieff, the Court found that even though a driver had been stopped unconstitutionally, the drugs seized during the unconstitutional stop were still admissible — because the officer had discovered an outstanding warrant afterward, offering retroactive validation.

Justice Sotomayor’s dissent in Strieff got deserved attention; what got less attention was that (thanks to Justices Elena Kagan and Ruth Bader Ginsburg) she wasn’t alone in dissenting, as she’s often been in Fourth Amendment cases on this Court. Maybe that’s a good sign. But a three-justice dissent is still a dissent. —Dara Lind

Loser 2: Merrick Garland

Yes, President Obama’s choice to replace the late Justice Scalia lost in one obvious way — he still hasn’t been confirmed to the Court and hasn’t even gotten a Senate hearing. But in addition to that, the argument that he should be speedily confirmed because the Supreme Court would be completely dysfunctional with only eight justices took a bit of a hit — because just 6.9 percent of cases since Scalia have ended up as 4-4 ties, according to CNBC.

Now, these deadlocks do include a few major cases — on unions, immigration, and tribal jurisdiction. So the confirmation of Garland or another justice would still matter a great deal. But the Court was relatively functional without Scalia, all things considered, so Democrats lost one potential argument they could make in favor of a speedy confirmation of Garland. —Andrew Prokop

Loser 3: Texas

Texas lawmakers worked really hard to pass the anti-abortion bill HB 2 in 2013. Gov. Rick Perry called a special legislative session to pass it, and succeeded despite a filibuster from Wendy Davis and a state capitol full of pro-choice protesters.

Parts of HB 2 still stand, but its biggest anti-abortion tools — the two provisions that closed about half of the state’s clinics — are now constitutional toast.

What’s more, as outlined in the “evidence” entry above, Whole Woman’s Health v. Hellerstedt is a much stronger abortion rights decision than the last one the Court handed down in 2007’s Gonzales v. Carhart.

It’s too soon to tell how far-reaching Whole Woman’s Health will be when it comes to the many, many other anti-abortion laws that states have passed. And anti-abortion lobbyists are nothing if not creative when it comes to inventing new model legislation to try out in the states.

But it looks like Texas has singlehandedly made it a lot harder for the pro-life movement to carry out its long-term plan of regulating abortion out of existence at the state level. —Emily Crockett

Loser 4: Puerto Rico

Hopes of Puerto Rico becoming a self-determining entity were squashed this Supreme Court cycle.

Right now Puerto Rico’s economy is in a “death spiral.” The small Caribbean island is facing a $72 billion debt crisis it cannot pay. And although Puerto Rico is a primarily self-governing body, as a US territory its power depends on Congress, which offers little relief.

In 1984, Congress passed a federal bankruptcy law denying the island (and Washington, DC) any semblance of statehood status that, by extension, barred it from filing Chapter 9 bankruptcy.

However, in Puerto Rico v. Franklin California Tax-Free Trust, Puerto Rico appealed to the Supreme Court to see if it would grant the island the freedom to attempt independently restructuring its debt. Instead, the Court ruled against it, further solidifying Congress’s power to micromanage the island.

Puerto Rico’s hands are tied. The island faces the possibility of defaulting on a $2 billion payment for major utilities like electricity and water sewage in July. But without the prospect of statehood, the Supreme Court ruling only exacerbates the extreme difficulties Puerto Rico is facing. —Victoria Massie

U.S. Politics

Court appears divided, signaling trouble for Obama on immigration

Cameron Lancaster

THE HILL

The Supreme Court appeared divided during oral arguments Monday in a crucial case challenging the executive actions on immigration that President Obama took in 2014.

Justice Anthony Kennedy, who is typically the court’s swing voter, seemed to side with Texas and the 25 other states arguing the president overstepped his executive authority in granting deferred deportation to nearly 5 million immigrants.

“It seems to me that’s a legislative, not an executive, task,” he said.

“It’s as if the president is setting the policy and the Congress is executing it,” he said. “That seems upside down.”

A 4-4 split by justices would leave in place a lower court’s decision blocking Obama’s action in a severe blow to the president.

The justices spent the majority of the 90-minute arguments grappling with whether Texas has a legal basis to challenge the creation of the Deferred Action for Parents of Americans initiative and the expansion of the Deferred Action for Childhood Arrivals programs that have been on hold since February 2015.

The court has shown signs that it’s struggling with only eight justices since the unexpected death of Justice Antonin Scalia in February. If the court deadlocks in its decision, the immigration programs would be as good as dead.

The lower court’s temporary injunction would stand while the states seek to permanently block the president’s actions. The litigation could span into the next administration, which may or may not fight to uphold Obama’s actions depending on who wins the White House in November.

By Lydia Wheeler

This breaking news report was last updated at 12:07 p.m..

 

 

U.S. Politics

The Supreme Court Just Dealt a Major Blow to Conservatives in a Key Voting Case

The Supreme Court Just Dealt a Major Blow to Conservatives in a Key Voting Case

Image Credit: Getty Images

POLICY.MIC

The United States Supreme Court dealt a substantial setback to conservatives in a key elections case on Monday, ruling 8-0 that lawmakers can count total population, not just eligible voters, in drawing legislative districts.

The case, Evenwel v. Abbott, focused on the so-called “one person, one vote” principle, was brought by Sue Evenwel and Edward Pfenninger, conservative activists who argued that states should count only eligible voters and not total population in devising districts.

A ruling for the plaintiffs would have meant excluding minors, convicted felons and many immigrants — both legal and undocumented — from the population counts used to draw district boundaries.

Read more: Here Are All the Times Republicans Praised Merrick Garland, Obama’s Supreme Court Nominee

Because immigrant-heavy districts tend to be more urban and Democratic-leaning, civil rights activists and liberal groups weighed in strongly against the plaintiffs’ case. A ruling in the plaintiffs’ favor would have diluted the power of predominantly Democratic areas.

Justice Ruth Bader Ginsburg wrote the court’s majority opinion, which was joined by five other justices. Justices Clarence Thomas and Samuel Alito, both conservatives, concurred with the court’s ruling but did not join Ginsburg’s opinion.

Citing “constitutional history, the court’s decisions and longstanding practice,” Ginsburg rejected the notion that the “one person, one vote” principle required counting only eligible voters.

“Total-population apportionment meets the equal protection demand, by rendering each representative alert to the interests and constituent-service requests of all who dwell in the representative’s district,” she wrote.

Meanwhile, Thomas and Alito argued that individual states should be allowed to decide how to draw district boundaries.

Luke Brinker

 

U.S. Politics

Clinton to attack Grassley over Supreme Court blockade

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Singling out Chuck Grassley, chairman of the Senate Judiciary Committee, pits old antagonists against each other again. | AP Photo

POLITICO

Hillary Clinton on Monday will make an old foe the center of a new battle.

In a speech about the Supreme Court that Clinton is scheduled to deliver at the University of Wisconsin at Madison, the Democratic front-runner is expected to single out Iowa Sen. Chuck Grassley and challenge him to hold hearings on the nomination of Merrick Garland to fill the Supreme Court seat vacated last month by the death of Antonin Scalia, according to a campaign official.

Clinton has spoken out forcefully against the Republicans’ intransigence to hold nominating hearings, accusing the GOP of implicit racism in ignoring President Barack Obama’s nominee, and noting that it has never taken the Senate more than 125 days to vote on a Supreme Court nomination.

But singling out Grassley, chairman of the Senate Judiciary Committee, in particular, pits old antagonists against each other again. Grassley has lead the Senate investigation into Clinton’s use of a personal email server at the State Department. And he has targeted Clinton’s top aide Huma Abedin — he has obtained and circulated information from the State Department’s inspector general’s office about special employee status that Abedin obtained that allowed her to earn outside income as a private consultant at the same time she was a government employee.

In January, during an appearance on “Meet the Press,” Clinton accused Grassley of attending a rally for Donald Trump in Iowa “for the simple reason to defeat me.”

On Monday, Clinton’s targeting of Grassley will be part of what a campaign aide described as a sustained effort to rip into Senate Republicans for failing to hold a hearing for a qualified court nominee.

Senate Democrats — who are making pressure for a hearing a centerpiece of their strategy to retake the Senate in November — lauded Clinton’s push from the campaign trail. And New York Sen. Chuck Schumer, who is leading the strategy, noted it also makes for good politics as Clinton tries to pivot to a general election while still fighting off a heated challenge from Bernie Sanders.

“It’s really smart of Hillary Clinton to put this issue front and center,” Schumer told POLITICO in a statement. “This issue unites Democrats and excites our base, while also appealing to independents and Republicans.”

Clinton has expressed support for Garland, a centrist appeals court judge, but has not said whether he fits her own criteria for a Supreme Court nominee — and whether she would commit to reappointing the 63-year-old if GOP Senate leaders succeed in blocking him for the next year. An aide told POLITICO the campaign is not entertaining the premise that Republicans could succeed in blocking Garland, as they have promised to do.

For months, Clinton has sought to elevate the stakes of the election by talking about the Supreme Court — and her speech on Monday is expected to mark her latest effort to explain the significance of its makeup.

“The next president could easily appoint more than one justice,” she wrote in an op-ed in the Boston Globe last January. “That makes this a make-or-break moment — for the court and our country.”

U.S. Politics

McConnell: No New Supreme Court Justice Until The NRA Approves Of The Nominee

CREDIT: AP PHOTO/SUSAN WALSH, FILE

The absurdity of McConnell’s statement is beyond belief..ks

THINK PROGRESS

Supreme Court justices are nominated by the president and appointed with the advice and consent of the National Rifle Association, according to Senate Majority Leader Mitch McConnell (R-KY).

McConnell offered this unusual view of the confirmation process during an interview with Fox News Sunday. In response to a question from host Chris Wallace, who asked if Senate Republicans would consider the nomination of Judge Merrick Garland to the Supreme Court after the election if Hillary Clinton prevails, McConnell responded that he “can’t imagine that a Republican majority in the United States Senate would want to confirm, in a lame duck session, a nominee opposed by the National Rifle Association [and] the National Federation of Independent Businesses.”

The Majority Leader’s statement is significant for several reasons. For one thing, it suggests that his previously stated position that “this vacancy should not be filled until we have a new President,” is a sham. Simply put, it’s unlikely that the NRA or the NFIB will change their position on a nominee just because Hillary Clinton is president and not Barack Obama.

But it’s also worth examining exactly who McConnell would give a veto power over nominees. The NFIB, of course, was a plaintiff in NFIB v. Sebelius, the first Supreme Court case seeking to repeal the Affordable Care Act. That lawsuit called upon the justices to impose limits on federal power that even the late Justice Antonin Scalia refused to impose in previous cases (although it’s worth noting that Scalia abandoned his previous principled stance when given the opportunity to cast a vote against Obamacare). When the NFIB isn’t fighting to take health care away from millions of Americans, it fights equally hard against raising the minimum wage.

The NRA, meanwhile, is known for its increasingly absolutist opposition to gun safety laws. Though Garland’s record on guns is fairly thin, the NRA opposes Garland’s nomination based on two cases he considered as a judge.

In the first of these two cases, Parker v. District of Columbia, Garland played a very limited role. InParker, two conservative members of a three judge panel struck down the District of Columbia’s strict handgun laws, over the dissent of another conservative, George H.W. Bush appointee Judge Karen Henderson. The District then asked the full appeals court to reconsider this decision in a process known as en banc review. Garland was one of four judges who voted to rehear the case, as was Judge A. Raymond Randolph, an extraordinarily conservative H.W. Bush appointee.

A 5-4 Supreme Court eventually agreed with the three-judge panel in District of Columbia v. Heller, the first decision in American history to hold that the Second Amendment protects an individual right to bear arms.

The second case cited by the NRA is National Rifle Association v. Reno, where Garland joined a decision by Judge David Tatel upholding a database the FBI uses to audit the background check system used to screen potential firearm buyers. The FBI retained information regarding individuals who sought to purchase firearms for six months after they attempted to make this purchase, and used this information to perform “quality control checks on the [background check] system’s operation by reviewing the accuracy of the responses given by the NICS record examiners to gun dealers,” among other things.

After six months, information in this database was destroyed. Nevertheless, the NRA claimed that the FBI was required to destroy this information much sooner.

Judge Tatel’s opinion rejecting the NRA’s argument relies on several interlocking provisions of federal law, as well as longstanding Supreme Court doctrines calling for deference to federal agencies, so it is not easily summarized in just a few paragraphs. You can read his opinion and assess his reasoning here. It’s worth noting, however, that NRA v. Reno is a classic case of gun groups seeking to win a victory in the courts that they repeatedly lost in Congress.

A provision of federal law requires the government to “destroy all records . . . relating to the person” who seeks to purchase a firearm — something the FBI did after six months — but does not order the government to do so within a specific time frame. As Judge Tatel notes in the opinion joined by Garland, members of Congress attempted multiple times to change this law to require the government to “immediately” destroy records produced by the background check system, and these efforts repeatedly failed. Thus, having failed to write the word “immediately” into the statute, the NRA asked the courts to do it for them. Tatel and Garland refused to take up this invitation.

So McConnell isn’t simply delegating his duty to evaluate potential Supreme Court nominees to the NRA, he’s deferring to the NRA despite the fact that the gun lobby group’s case against Garland is very thin. It consists of Garland’s single vote to rehear a case that one of his court’s most conservative members also voted to rehear, along with a decision to allow the FBI to continue to perform audits on the background check system after lawmakers sympathetic to the NRA tried and failed to shut those audits down.

IAN MILLHISER

U.S. Politics

The SCOTUS Time Bomb That the GOP Are Freaked Out About

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Anita Hill – The GOP’s worse nightmare | attribution: ANITA HILL

DAILY KOS

It’s been under the radar for the most part, but an upcoming docudrama on HBO is going to blow the lid off the Capitol Dome this coming Spring, unintentionally timed, as it is for release in mid April, just as the Senate will be forced to confront what was only a few weeks ago unthinkable: another Obama Supreme Court nomination as the current, already-off-the-charts election season is fully underway.

The film is “Confirmation,” a dramatic retelling of the Clarence Thomas Supreme Court nomination hearings before the Senate Judiciary Committee chaired by then-Senator Joe Biden. The synchronicities surrounding this made-for-TV movie, its timing, and the personalities both from the infamous ‘91 hearings and the current cast of political players in Washington DC will provide a surreal backstop to the contemporaneous vortex of news cycles that will be juxtaposed to it.

The screenplay for Confirmation was crafted by Susannah Grant, the film’s Producer who also wrote the screenplay for Erin Brockovich. Both films relate the story of a brave and principled woman standing up against huge institutional forces intent on crushing her. The Brockovich story ends well, with Erin scoring a major victory against the unconscionable pollution practices of CA utility, PG&E; Anita Hill’s saga, on the other hand, ends with the man who sexually harrassed her, Clarence Thomas, ascending to one of the most powerful and unassailable positions in the world — and with her reputation assaulted eggregiously by, among many others, Thomas himself.

Kerry Washington, who plays Hill in the film, says that she met with Hill to help herself get into the character, and that she was inspired by her.

One more note about the supposition that the script for this film isn’t GOP-friendly: Kerry Washington is the Lead.

“Under The Radar, For the Most Part”

While I’m not privy to the script (there’s not even a synopsis available yet), some folks who have seen the script are pretty agitated, those folks being the defenders of Thomas who smeared Hill in the hearings: Alan Simpson (of Catfood Commission fame), Jack Danforth (for whom Thomas was a Senate aide), and Thomas’ lawyer at the time, Mark Paoletta. They’re monumentally pissed and they threatened to sue just a few days ago if the version of Grant’s script that they were provided (when the producers were looking for pre-production input) is used. Whether their threats of legal action were prompted in any way by the upcoming SCOTUS brouhaha I have no idea (although it must be noted that their collective umbrage did suddenly find public expression — after many months of silent gestation, it must be assumed — just 5 days after Scalia’s death), but it’s certain that this film, given the “serendipitous” timing of its release (April 16), will rile more than just a few aging sexists in the GOP old-horse pasture.

As a side note, it’s interesting to speculate whether Joe Biden’s choice not to enter the Dem POTUS primary was in any way influcenced by the advent of this film. He was certainly also asked for script input prior to shooting, and his role in the story was one of enablement of Thomas’ supporters, in that he scuttled the testimony of corroborating witnesses in support of Anita Hill.

The Upshot:

Thomas is the person the the High Court bench who was closest to Scalia (he gave a scriptural reading at Scalia’s funeral), and most dependent on him (he said Scalia took him under his wing when he came on board), whose now-open seat has become the likely focus of the upcoming Presidential Primary and General Election year.  It will be very interesting to see who Obama nominates for the post, and how that might play out, juxtaposed with the buzz from the Confirmation story as it re-enters the collective American psyche.

I hope Obama nominates another female for this vacant SCOTUS seat. It’s been almost a century since women were given the right to vote and the court is still 2/3 male. It would enhance his legacy, make gender equality in the nation one step closer to reality, and give the court much needed female perspective, especially since Justice Ginsberg can’t be far from finishing her long, glorious stint. And, with the Thomas/Hill story having entered into the Zeitgeist via Confirmation, it would bring into sharp focus the fractious, toxic and corrosive nature of the Conservative movement in America.

And finally, the question inevitably presents itself: what about Anita Hill herself? Nowthat would be ground shaking. But I doubt seriously she’d want to sit in the same room with Thomas for the rest of his life.

By nailbender