Political Blunder-Judicial Crisis

While the U.S. Presidential race gets most of the media attention, one of the biggest political blunders of 2016, and perhaps one of the most historic mistakes ever made by the U.S. Senate appears to have fallen off the radar. Earlier this week U.S. Senator Tammy Baldwin (D-Wis.) returned to her hometown to give a talk to the American Constitution Society’s kick-off event for its new Madison Chapter, in which she presented her concerns about the Senate Republican majority’s decision to refuse to fulfill its Constitutional duty to give advice and consent on President Obama’s nomination of Judge Merrick Garland to fill the now 7 month old vacancy on the U.S. Supreme Court.

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Senate Majority Leader Mitch McConnell announced before President Obama nominated Judge Garland that the Senate would neither hold hearings nor vote on any nomination made by the President to fill the vacant seat. His excuse was premised on the argument that the next President should choose the next Supreme Court Justice. Beyond the abdication of the Senate’s Constitutional duty under Article II to provide advice and consent to judicial nominations, McConnell’s blunder was apparently based on the likely mistaken assumption that a Republican would win the Presidential election and the Senate majority would remain with the Republicans. However, it was McConnell’s very blunder that exacerbated the likelihood that neither plan would come to fruition and that the next Supreme Court Justice will likely be nominated by Hillary Clinton and confirmed by a Democratic Senate majority. If that scenario comes true, while the Republicans could have declared a small victory with President Obama’s nomination of the very moderate Judge Garland, Hillary Clinton will be free to nominate a far more progressive Supreme Court justice instead.

It is important to note that McConnell’s political blunder would never have been sanctioned by our founding fathers. As Alexander Hamilton wrote in The Federalist Papers No. 76, by vesting the appointment power in the President, rather than Congress, the founders sought to avoid having appointments determined by,

the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly.

He went on to say that in assigning the Senate the more limited role of advice and consent to presidential nominations, the founders believed that it was,

not likely that [the Senate’s] sanction would often be refused, where there were not special and strong reasons for the refusal. [Those] special and strong reasons [included] the appointment of unfit characters from State prejudice, from family connection, from personal attachment or from a view to popularity.

Of course, none of these reasons apply to the highly respected Judge Garland, and it is worth noting that Sen. McConnell made clear that it did not matter whom President Obama nominated. The Republican obstruction would be total and complete regardless of the merits of the nomination.

Sen. Baldwin pointed out that the Republican obstruction of President Obama’s judicial appointments goes much further than one crucial nomination to the Supreme Court. Close to home, she pointed out that President Obama’s nomination of Don Schott to the Seventh Circuit Court of Appeals has also been obstructed despite being vacant since January 2010. As of now, 77 of 673 U.S. District Court judgeships (11%) are vacant, twice as many as under President George W. Bush at this point in his presidency and 50% more than under President Clinton and President George H.W. Bush at the same point in their presidencies.

As this chart points out, the  Senate Republican obstruction of President Obama’s appointments is extreme and unprecedented.

Number of Judicial Confirmations During Final 2 Years in Office

  • President Ronald Reagan: 85
  • President George H.W. Bush: 122
  • President Bill Clinton: 73
  • President George W. Bush: 68
  • President Brach Obama: 20

In Chief Justice Roberts 2010 Year-End Report on the Federal Judiciary, he made clear that,

a persistent problem has developed in the process of filling judicial vacancies…This has created acute difficulties for some judicial districts. Sitting judges in those districts have been burdened with extraordinary caseloads….[There is] an urgent need for the political branches to find a long-term solution to this recurring problem.

A tie vote on the Supreme Court means the lower court decision is upheld and is a monumental waste of time and money for the parties attorneys and Supreme Court justices. Important issues such as public unions and immigration have been stalled due to tie votes due the Senate Republican refusal to fill the empty seat and more ties may occur in the current October session of the Supreme Court.

History will be the ultimate judge, but thus far, it appears that Senator McConnell and his Republican Senate colleagues may have made one of the biggest political blunders in history, and in the mean time denied justice to thousands of Americans waiting for their day in court.

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For more information on how I can help you accomplish effective, progressive systems change contact Jeff Spitzer-Resnick by visiting his website: Systems Change Consulting.

It Makes a Difference

Recently, in an effort to make himself look Presidential, the presumptive Republican nominee put out a list of potential Supreme Court nominees. Meanwhile, Republican Senators continue to abdicate their responsibility by failing to hold hearings and a vote on President Obama’s nomination of Merrick Garland, a well respected moderate, to fill the empty seat on the Supreme Court. While that seat remains empty, the Supreme Court continues to flounder with numerous 4-4 ties, recently sending a case back to the lower court for further consideration to avoid yet another tie.

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Perhaps the most lasting Presidential impact is the power to nominate Supreme Court justices. Since these are lifetime appointments, the average tenure of a Supreme Court Justice is 16 years, or twice as long as the maximum amount of time a President can serve. We have recently seen the powerful impact of the Supreme Court on our society as it legalized same-sex marriage nationwide.

The Supreme Court’s impact on our society depends on who is on the Court. In 1896, the Court established the concept of “separate but equal” in Plessy v. Ferguson. In 1954, the Supreme Court ended that hateful racist legacy in Brown v. Board of Education.

During the Roosevelt era, the same Court that upheld much of the New Deal, also upheld the detention of Japanese-Americans in internment camps during World War 2, one of the most shameful acts of our nation.

As I reviewed the presumptive Republican nominee’s list of possible Supreme Court nominees should he be elected, I noted that the name of a judge whom I have appeared before and followed her career closely. Diane Sykes, is a former Wisconsin Supreme Court Justice, who left her post to accept a seat on the Seventh Circuit Court of Appeals. While she is well known for her ultra-conservative opinions upholding voter ID, and restricting employees’ access to birth control, what concerns me as an attorney is her complete disdain for her fellow judicial colleagues as well as the attorneys who practice before her.

When Judge Sykes accepted her current appointment to the Seventh Circuit, it should have come as no surprise that then Governor of Wisconsin, Jim Doyle, would appoint a very different Justice to replace her, and indeed he did, when he appointed the Hon. Louis Butler, whom I have known for many years and for whom I have a great deal of respect. Yet, in utter disregard for the fact that she created the opening for Butler’s appointment, she publicly criticized the Wisconsin Supreme Court after her departure in such an outlandish manner that it provoked a thoughtful law review article from federal district court Judge Lynn Adelman.

In 2013, Judge Sykes joined Supreme Court Justice Clarence Thomas when they gave speeches at the arch-conservative Federalist society’s fundraising dinner provoking an ethics complaint from a member of Congress, Common Cause and the Alliance for Justice.

In late 2011, I appeared before her when she sat on the Seventh Circuit panel reviewing the appeal by Milwaukee Public Schools (MPS) of our special education class action which we had won in federal district court, thereafter settling with the Wisconsin Department of Public Instruction, in a comprehensive manner that was working to make dramatic improvements in MPS. What I witnessed from Judge Sykes was a level of disrespect for her colleagues (literally eye-rolling at the well respected Judge Rovner’s questions) and my co-counsel (chastising her repeatedly without cause), that I knew that if she wrote the decision, we would lose. Of course, as soon as we received the decision and I saw it was authored by Judge Sykes, I knew before reading it that we had lost. Not surprisingly, Judge Rovner dissented.

So, when you cast your vote in November, remember that the next President will likely reshape the Supreme Court with as many as 4 nominations, which will shape our nation’s legal environment, including its civil rights for decades to come. It will make a difference.

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For more information on how I can help you accomplish effective, progressive systems change contact Jeff Spitzer-Resnick by visiting his website: Systems Change Consulting.