Supreme Court

Rick Joyner: Hurricane Katrina Was God's Way Of Punishing Gay People

Last week on “The Jim Bakker Show,” televangelist Rick Joyner repeated his claim that gay pride events are to blame for Hurricane Katrina, alleging that the storm was a sign of God’s judgment and “a wakeup call.”

Joyner also spent time criticizing the Supreme Court’s landmark marriage equality ruling during a discussion about the death of Justice Antonin Scalia.

After wondering if Scalia’s death was a sign from either God or Satan, Joyner again insisted that while he doesn’t like conspiracy theories, “there’s something really suspicious” about Scalia’s death: “There’s something really fishy about this that needs to be answered.”

“This could fracture our nation and bring about Civil War,” Joyner said of Scalia’s death. “It has that potential. That sounds extreme but, I tell you, you wait and see.”

This led him to declare that the Supreme Court has become an out-of-control force of tyranny and that the five justices who ruled in favor of marriage equality “need to be impeached.”

Steve King Admits The Supreme Court Blockade Is All About Politics

In comments captured by Americans United for Change at CPAC last week, Rep. Steve King praised Sen. Chuck Grassley’s stance that the Senate should not even consider any jurist nominated by President Obama to fill the vacancy on the Supreme Court.

While Grassley, the Iowa Republican who chairs the Senate Judiciary Committee, has insisted that he is blocking a Supreme Court appointment because he’s abiding by a (nonexistent) tradition that the Senate doesn't confirm justices during an election year, King seemed to give away the game and admit that Senate Republicans are engaging in a political fight to stop Obama.

Video via Democracy Partners / Americans United for Change.

The Iowa Republican congressman said he would support Grassley’s Supreme Court blockade “as long as he’s blocking an Obama appointment.” King dismissed concerns about the Senate’s constitutional obligation to consider Supreme Court nominees and made it clear that the blockade is all about anti-Obama politics.

I’m going to defend Chuck Grassley and whatever he decides to do on this at least as far as — as long as he’s blocking an Obama appointment. And I say that because I’m on the Judiciary Committee in the House, we have a voice but we don't have a vote, that this argument about who should do the nomination and whether there should be the advice and consent of the Senate so that the president can make that appointment, this swings back around.

There will be all kinds of constitutional arguments that are made and they will say “process” and "tradition” and “constitution” and “precedent” are going to guide us all. And then they’ll make up those that support their argument and some of them who are making those arguments will be contradicting their previous arguments the last time these things came up, like Schumer, for example.

But in the end, we should understand that it’s a political argument and a political clash of this will be played out with higher and higher intensity moving forward until November. If Chuck Grassley and Republicans can hold off on a nomination or vote down a nomination until the election, then I think it will be clear that it’s not going to happen until the next president makes that appointment.

After shrugging off the Constitution’s “advice and consent” provision, King said he would only support judicial nominees “who believe and adhere to the principle that the Constitution means what it says and needs to be interpreted to mean what it was understood to mean at the time of ratification.” (That’s code for results-based rulings cheered by conservatives.)

Rafael Cruz: Gay Marriage Will Destroy Society

Rafael Cruz, the father and campaign surrogate of GOP presidential candidate Ted Cruz, launched into yet another rant about the Supreme Court in an interview today on “Breitbart News Daily,” this time warning that an additional “liberal justice” on the high court will destroy all of society.

“One more justice like that,” the elder Cruz said of the four justices appointed by President Clinton and President Obama, “and we will lose our right to keep and bear arms. We will lose all of our religious freedom. We will see abortion on demand to the day of delivery. We will see the destruction of traditional marriage, and the family is the foundation of society — if the family is destroyed, society will be destroyed.”

Of course, the Supreme Court ruled last year in favor of marriage equality — which conservatives deride as “the destruction of traditional marriage” — and society has somehow managed to survive.

He went on to say that Donald Trump would appoint a liberal jurist and so “it would be disastrous if [he] became president,” alleging that Trump is a phony conservative who “lies constantly.”

“Trump is the biggest enigma we have,” he added. “We don’t know where he’d be on any issue.”

Do Conservatives Even Believe In The Bill Of Rights?

The Judicial Crisis Network (JCN) has somehow managed to stoop even lower in its dishonest and deceitful campaign to block the Senate from even considering whomever President Obama nominates to fill the vacancy on the Supreme Court.

Carrie Severino of JCN, which was founded as the Judicial Confirmation Network but rebranded as a group opposed to judicial confirmations coincidentally after Obama took office, took to National Review last week to attack Jane Kelly, a U.S. circuit court judge whom Obama is reportedly considering nominating to the high court, for once defending a child predator while working as a public defender.

As Zachary Pleat of Media Matters pointed out, Severino not only twisted Kelly’s actions in the case, but attacked Kelly simply for doing her job as a defense attorney.

Severino, a former clerk for Justice Clarence Thomas, must know that even people accused of heinous crimes have a right to an attorney who would vigorously defend their client. It would completely undermine the judicial process to say that the accused should have no legal representation or should have a lawyer who will simply throw the case rather than fulfill their obligation to defend them.

After all, the right to a fair trial lies at the heart of the Sixth Amendment, and JCN actively promoted the confirmation of Chief Justice John Roberts, who once worked on the defense of convicted murderer John Ferguson.

This attack, Pleat writes, “echoes past right-wing media attacks on Democratic presidential front-runner Hillary Clinton and former Department of Justice civil rights division nominee Debo Adegbile.”

Several conservative pundits accused Clinton of leading a “war on women” after she was asked by a judge, in 1975, to defend a sexual assault suspect while she was working in legal aid, while Senate Republicans successfully blocked Adegbile’s nomination to head the Justice Department’s Civil Rights Division because they were upset he once worked on a legal team representing Mumia Abu-Jamal, who was convicted of killed a police officer, on an appeals case regarding whether sentencing instructions given to a jury were constitutional. As Miranda said:

It was an ugly episode, in which politicians like [Ted] Cruz essentially declared that not all criminal defendants deserve the Constitution’s guarantee of legal counsel. And it’s telling that Cruz, the self-proclaimed lover of the Constitution, brought it up in his latest ugly screed.

Clinton and Adegbile aren’t the only people targeted by Republicans simply for acting as defense attorneys.

In 2014, the Republican Governors Association (RGA) ran attack ads against South Carolina state Sen. Vincent Sheheen, a Democratic candidate for governor, for his work as a criminal defense attorney, using the tagline: “Vincent Sheheen: he represents criminals, not us.”

South Carolina Bar Association President Alice Paylor said the RGA ad campaign amounted to an attack on “the whole basis for the U.S. and the U.S. Constitution. According to them, I guess everyone accused of something is automatically guilty.”

The American Bar Association sent a letter to Gov. Chris Christie, a former prosecutor who chaired the RGA at the time, noting, “Lawyers have an ethical obligation to uphold that principle and provide zealous representation to people who otherwise would stand alone against the power and resources of the government – even to those accused or convicted of terrible crimes.”

The rule of law that governs our society delivers justice specifically because everyone has a right to competent representation. This right is especially important for those who arouse our fear and anger, to ensure that the process by which they are judged is fair and just. This process is what distinguishes us from our darker history, when mobs decided guilt or innocence and punished those they deemed guilty.

And in 2010, a group formed by Bill Kristol and Liz Cheney, the daughter of former vice president Dick Cheney, launched attack ads “against the Obama Justice Department for hiring lawyers who, at one time or another, did legal work on behalf of terror suspects.” The group branded the lawyers the "Al Qaeda 7," questioned their loyalty to the country and demanded that the Justice Department release their names.

We can only imagine how Republicans would have gone after John Adams for representing soldiers charged with murder during the Boston Massacre.

Ted Cruz: Supreme Court On Brink Of Throwing Religious People In Prison

Last week at CPAC, Ted Cruz continued to baselessly assert that the Supreme Court is on the verge of crushing all freedom in America.

“We are one liberal justice away from the Supreme Court ruling that government can take our religious liberty away and force every one of us to violate our faith on penalty of prison or fine,” Cruz said. “We are one liberal justice away from the Supreme Court ordering Ten Commandments monuments torn down all over this country. We are one liberal justice away from the Supreme Court erasing the Second Amendment from the Bill of Rights.”

He went on to warn that the World Court will reign supreme and veterans memorials will be torn down across America if Democrats are allowed to place any more justices on the Supreme Court.

Federalist Society VP Says Senate Could Ignore SCOTUS Nominees Indefinitely

During the administration of George W. Bush, the Federalist Society helped the administration fill the federal courts with judges who embrace a right-wing legal ideology. Back then, group leaders criticized Democratic senators for filibustering some nominees. But at the Conservative Political Action Conference (CPAC) last week, a senior Federalist Society staffer praised Republican Senators who have refused to even give a hearing to a nominee for the Supreme Court seat left vacant by the death of Justice Antonin Scalia  and suggested that if a Democrat is elected president this year, the Senate could continue its obstructionist blockade through the next administration.

The Federalist Society has often portrayed itself as a polite debating society and downplayed the important and destructive role it has played promoting far-right legal theories as well as judges and political officials who can turn that ideology into public policy. The Federalist Society’s influence reached a pinnacle with the nomination of Supreme Court Justice Samuel Alito, an ideological warrior with deep roots in the right-wing legal movement. Alito, whose nomination was shepherded through the Senate by the Federalist Society’s Leonard Leo, has returned the favor as a justice, helping raise money for the Federalist Society and other right-wing groups, and becoming the single most pro-corporate justice on the most pro-business Supreme Court since the New Deal.

Dean Reuter, vice president of the Federalist Society, led a brief workshop at CPAC with John Yoo, a law professor and author of the infamous “torture memos” while working at the Justice Department during the George W. Bush administration. Reuter and Yoo are co-editors of “Liberty’s Nemesis: The Unchecked Expansion of the State,” published last month. The book focuses on the growth of the administrative state, but Reuter began by addressing the dispute between the White House and Senate Republican leaders who have declared that they will refuse to even consider a Supreme Court nominee this year.

Reuter said it was the Senate’s duty to act as a check on executive power.

But I’m happy to report that the law and the Constitution are on the Senate’s side here. The president surely does have a duty to nominate someone, but the Senate has a co-equal duty as a co-equal branch of government to, in this case, operate as a check. It doesn’t have any responsibility or any duty to host one-on-one meetings with the nominee, or hold a hearing, or hold a committee vote or a floor vote. There’s no timetable. It’s not as if the president sends somebody over and says, we need this back next month, or next Wednesday, or whatever.

So the Senate is perfectly well within its prerogative, even the proper understanding of checks and balances, it can easily be said that the role of the Senate is to check the president’s power in this instance, the appointment power, especially I think when you’re dealing with a third branch of government and a lifetime appointment.

It’s not the president appointing the secretary of the Department of Commerce, it’s the president making an appointment to an independent, third branch of government and the Senate’s entitled to do its full due, which in this case may be not to act.

When asked if the Constitution would support the Senate’s refusal to act indefinitely if a Democrat were elected president, he said:

There’s no time limit in the Constitution. And there’s nothing magical about there being nine justices. The country started out with six justices, we’ve had as many as 10 at some point in time. And as recently as 2010, when Justice Elena Kagan came on the court, she had been solicitor general so she recused herself in over a third of the cases…I don’t see a sense of urgency.

The Federalist Society would undoubtedly experience a different sense of urgency if a Republican were elected president and given the opportunity to put more right-wing activists like Samuel Alito on the court.

Right Wing Bonus Tracks - 3/3/16

  • James Dobson says that the future of the Supreme Court makes this "one of the most significant national elections in American history. The future of our nation is hanging in the balance, and we dare not make a mistake this time around." 
  • "Coach" Dave Daubenmire demands to know why pastors are remaining silent "as Evangelical Christian Ted Cruz OPENLY prays with Mormon Glenn Beck."
  • The American Society for the Defense of Tradition, Family and Property blasts CPAC for allowing gay and atheist groups to participate: "We call upon the American Conservative Union to rescind its welcoming of organizations like Log Cabin Republicans and Atheist Voters as sponsors and exhibitors. Doing so would show consistency with the word conservative in its name."
  • FRC prays that Antonin Scalia's replacement will be "speedily confirmed" ... after being nominated by the next president, of course: "Thank God for the Senate leadership’s stand. May GOP members hold fast, whatever pressure to do otherwise may come. May the American people elect a president who will nominate a constitutional conservative justice in the New Year! May he or she be speedily confirmed. May voters be alert to the kind of justice each presidential candidate would select, given that the next president may have the opportunity to choose three or more! God have mercy upon us!"
  • Finally, CBN's David Brody defends all those poor Christians who are being criticized for supporting Donald Trump: "The condemnation of Trump’s Christian supporters from within evangelical circles is troubling. Is there now a threshold of Christianity that you need to achieve to be a 'real evangelical?' In other words, if you support Cruz you’re a true believer but if you go with Trump you’re not? Are 'Trump Christians' going to have to wear a political Scarlet Letter?"

Who’s Driving The GOP’s Supreme Court Blockade?

Almost immediately after the news broke of Justice Antonin Scalia’s death last month, Republican senators started vowing to block the nomination of whomever President Obama appoints to succeed the conservative jurist. They were egged on in this kneejerk obstructionism by outside conservative groups who quickly circled the wagons in an effort to shut down any Supreme Court confirmation process.

Now, a few key conservative groups are leading the effort to pressure Republican senators to stay in line and to make it politically difficult for vulnerable Democrats to cooperate in a confirmation process. These groups have unified around a message that “the American people should decide” who the next Supreme Court justice is by waiting until the next president can nominate him or her — never mind that Americans did decide who they wanted picking Supreme Court justices when they reelected Obama in 2012.

This “let the people decide” message belies the true goals of the groups pushing it — not some idealistic belief in good governance, but an effort to shape a Supreme Court that favors business interests at the expense of workers and consumers and that helps to turn back the clock on women, LGBT people  and religious minorities.

A new report from People For the American Way looks at four of the conservative groups driving this strategy, outlining their history and their goals for the federal judiciary. It includes:

  • The Judicial Crisis Network was founded during the George W. Bush administration as the Judicial Confirmation Network with the goal of pushing through the nominations and confirmations of far-right judges to the federal bench.
  • The American Center for Law & Justice, founded by televangelist Pat Robertson, often acts as a legal arm for the Religious Right’s attempts to deny liberties to LGBT people, Muslim Americans and others.
  • The Heritage Foundation and Heritage Action have become forces for obstructionism as they pressure Republicans to abandon any attempt at bipartisan cooperation or simple governance.
  • The Family Research Council is working to turn back the clock on social advances for women, LGBT people and religious minorities — something that it hopes a friendly Supreme Court will accelerate.

Read the full report here.

Ted Cruz: Gay Marriage Will Pull Christian Broadcasters Off The Air

Sen. Ted Cruz has added a new twist to his unsubstantiated claim that the Supreme Court’s marriage equality decision last year will cause religious schools that don’t recognize same-sex marriage to lose their tax exemptions. In a speech last week to the National Religious Broadcasters convention, Cruz said that the Obergefell ruling will also force Christian broadcasters off the airwaves.

Cruz completely twisted remarks made during the Obergefell arguments by Solicitor General Donald B. Verrilli. While Verrilli said that he couldn’t answer a question about tax exemptions, Cruz alleged that “the answer from the Obama Justice Department in the open court of the Supreme Court of the United States was yes, that is a very real possibility that the IRS will come after you, that if your hosts go on air and say, ‘the Bible teaches that marriage is not defined by man, it is defined by God as the union of one man and one woman to mirror the relationship of Jesus Christ and the church,’ that you risk the federal government yanking your FCC license. That’s the threat we’re facing. They’re not hiding from this threat. They’re saying in open court, ‘We will use the power of government to go after and target those who speak against us.’”

Despite Cruz’s claim, legal analysts and religious groups have said it would be highly unlikely that marriage equality will bring about the end of tax exemptions for religious institutions that oppose same-sex marriage.

Secondly, the FCC issue never came up in court, and Verrilli never came close to claiming that the government will go after religious broadcasters or people who speak out against same-sex marriage.

Cruz simply made it up.

This shouldn’t be surprising, as the Texas senator also falsely claimed that the legalization of gay marriage will lead to criminal penalties for pastors who refuse to perform marriage for same-sex couples.

The Cruel Irony Of The Anti-Choice Movement's TRAP Strategy

The Supreme Court heard arguments today in Whole Woman’s Health v. Hellerstedt, which could be the most influential abortion rights case in decades. Whole Woman’s Health, which addresses a Texas law that aims to close abortion clinics by saddling them with expensive and unnecessary regulations, puts to the test the anti-choice movement’s long-term strategy of passing targeted regulation of abortion providers (TRAP) laws meant to squeeze abortion providers out of existence.

As early as 1990, attorney Walter Dellinger, who went on to serve in the Clinton administration, was warning that the emerging strategy of setting up obstacles to abortion access would push women to obtain abortions later in their pregnancies, a more expensive and less safe procedure. These supposed “compromise” measures, he noted, were at the same time sometimes coupled with calls to cut off legal abortion during the second trimester of pregnancy. Dellinger wrote in The American Prospect:

To enact in the United States laws that simply prohibit abortions after twelve or eighteen weeks would constitute a strange and cruel response to the issue of late abortions. In this country, legislative deadlines for abortion would co-exist with access regulations designed to prevent women from being able to meet the deadline. No state truly concerned about either the increased maternal health risks or the moral implications of late abortions should consider the coercive step of prohibiting second trimester abortions while simultaneously pursuing policies that cause abortion to be delayed. … Bans on funding for abortions, shutting off access to public hospitals, parental consent/ judicial bypass laws, and testing requirements all fall into this category. Legislators who are troubled in principle by late abortions should support instead measures ensuring that every woman who wants to terminate a pregnancy can do so as early and as safely as possible.

Fast forward to late last year, when a study showed that exactly that had happened after Texas implemented its restrictive new law:

A new report released by the Texas Policy Evaluation Project — a research group based at the University of Texas at Austin that’s been tracking the state’s reproductive health policy over the past four years — finds that recent clinic shutdowns have greatly limited access to timely abortions statewide. In some cases, women had to wait nearly a month to be seen. In others, clinics had to turn women away, since they had no available appointment slots open.

As wait time to get an abortion increases, the estimated proportion of abortions performed in the second trimester increases. These later surgical abortions, although safe, are associated with a higher risk of complications and are significantly more costly to women than an earlier medical abortion. And even staunch abortion opponents are more opposed to late-term abortions compared to earlier procedures, citing the scientifically disputed theory that fetuses can feel pain after 20 weeks gestation.

At today’s arguments in Whole Women’s health, Justice Anthony Kennedy hinted at this issue, according to the Wall Street Journal’s early reports:

Justice Kennedy ends the string of questions from the women justices.

He notes that drug-induced abortions are up nationwide, but down in Texas, where the number of surgical abortions is up since the state enacted its law. He wondered whether such an impact was “medically wise.”

Justice Ruth Bader Ginsburg similarly called out Texas’ solicitor general for undermining his own claim that the state’s regulations were meant to protect women’s health:

Justice Ginsburg asks: How many women will be located more than 100 miles from a clinic? Mr. Keller makes reference to a 25% number, but says that number is high because it doesn’t take into account some women close to clinics in New Mexico.

That’s odd, Justice Ginsburg says. She wonders why Texas would consider those New Mexico clinics an option, given that they wouldn’t meet the standards set forth in the state law. If your argument is right, New Mexico is “not a way out” for Texas, the justice tells Mr. Keller.

Even as the anti-choice movement is pushing restrictive regulations that, as the Texas study showed, drive women to seek abortions later in their pregnancy, it is championing measures at the state and federal level that would cut off legal abortion at 20 weeks of pregnancy, partway through the second trimester.

Of course, the anti-choice movement is focusing on these two strategies because they believe they can pass muster in the courts and in public opinion in a way that the ultimate goal — an outright ban on abortion — would not. But what is left is not a regime that protects women’s health, as proponents of Texas’ law claim, but one that makes it increasingly difficult, if not impossible, for women to obtain an abortion, which has been their ultimate goal all along.

Ben Carson: 'Conspiracy Books' Prove Gay Rights Are A Communist Plot Against America

At last week’s National Religious Broadcasters Presidential Forum, Ben Carson said that the separation of church and state and marriage equality are incompatible with the First Amendment and the Bible, while boasting that he’s read enough “conspiracy books” to know that public school lessons and anti-discrimination laws are authored by communist subversives.

Carson told host Eric Metaxas that “the First Amendment gives you the right to live according to your faith without being harassed,” adding that “separation of church and state is not in the United States Constitution, it was a Supreme Court ruling a few decades ago where it actually entered the lexicon.” In fact, the phrase was used by Thomas Jefferson and James Madison.

This led him to criticize “our judicial Supreme Court” for making “bad decisions” like “the Dred Scott Act [sic]” and “the Uberfeld [sic] ruling on gay marriage.” (We assume that Carson was referring to the Supreme Court’s rulings in Dred Scott v. Sandford and Obergefell v. Hodges, respectively.)

He called Obergefell “way out of whack” because it “impinges upon the ability of people to live according to their faith," saying that “as president I would really encourage them to come up with legislation that protects the livelihood and the freedom of people who believe that marriage is between one man and one woman. There’s no reason that those people should be persecuted in our society.”

Carson then explained that “the advocates of gay marriage” want to completely undo the Bible and, as a result, American society: “The Bible, in both the Old and New Testament, is pretty firm against their way of thinking but if you can negate that then you can negate other portions of the Bible as well. This is the camel’s nose under the tent to undermine the Christian foundation of our nation.”

“I believe that there are a group of progressive individuals,” he said, “who have intentionally been trying to take over our school systems, been trying to take over the media in particular and various areas where they, through their propaganda, can change and undermine the principles that made America great and substitute them with their principles. And they have imposed political correctness so that you can’t even talk about it while they change the fabric of society. That’s what’s happened. That’s why we’ve changed so quickly. And that’s why, if we don’t do something about it, which takes courage, we will end up with a very fundamentally changed nation.”

He then reiterated his belief that gay rights are part of a larger conspiracy to destroy America, boasting that he knows the truth after reading “conspiracy books”: “Many people have been mesmerized by the secular-progressive movement and they have come to accept it almost by osmosis, without recognizing what the implications are. I know fully what they’re doing but that’s because I do a lot of reading. I read conspiracy books, I read all kinds of books. I also read communist books and socialist books and I know about some of these plans that they have.”

Carson went on to say that Bernie Sanders has performed well in the youth vote because leftists “have taken over the educational institutions so they can basically change the thinking of our young people.”

Rick Joyner Speculates The Scalia Was Murdered And Warns That America Is Heading For Civil War

On his most recent "Prophetic Perspective on Current Events" broadcast, right-wing televangelist Rick Joyner declared that "something smells like a rat" in the recent death of Justice Antonin Scalia and warned that America could descend into civil war over efforts to replace him on the Supreme Court.

Joyner said that "you can't help but think" that something suspicious is going on regarding Scalia's death since no autopsy was performed.

"They rushed him in there and started the embalming process like they didn't want an autopsy," he said. "I'm not saying that he was murdered, but you can't help but wonder."

Joyner went on to say that just as the Supreme Court's Dred Scott decision eventually plunged this nation into the Civil War, the court's recent marriage equality decision is likewise tearing this nation apart and could soon result in a violent conflict.

"We are in danger of a civil war in America," he warned. "We are in danger of fracturing, not just into two parts, but into many parts. I pray it doesn't happen. I pray it doesn't get violent but if you don't change your direction, you're going to end up where you're headed and that's the direction we're headed. I believe you could see America fracture into six different parts, at least. We believe in prophecy, there are prophetic warnings about this that I believe are from above."

Rafael Cruz: 'We Will Lose All Our Religious Freedom' If Supreme Court Gains A Liberal Justice

Yesterday on American Family Radio’s “Today’s Issues,” Rafael Cruz chatted with Ed Vitagliano about the need to elect his son, Texas Sen. Ted Cruz, president of the United States and prevent the appointment of a “liberal justice” to the Supreme Court.

“With the passing of Justice Scalia, the Supreme Court is in a precarious balance,” he said. “One more liberal justice and we lose the Second Amendment right to keep and bear arms, we lose the right to life and abortion on demand to the point of delivery will become the law of the land, we will lose all our religious freedom.”

Vitagliano agreed, warning that “one more liberal, vote-in-lock-step Supreme Court justice could doom many of the freedoms that we enjoy, First Amendment, Second Amendment, possession of firearms, the right to bear arms.”

Cruz lamented that “pastors have gone AWOL” from the political sphere even though the “Pilgrims came to America seeking the freedom to worship Almighty God and this country was founded on the Word of God and religious freedom,” adding that his son’s presidential bid is motivating conservative Christian pastors to get involved in politics. He told pastors to “open the eyes of people who are in darkness.”

“Vote for a candidate that stands on the purity and the integrity of the Word of God and on the integrity of the Constitution,” he said. “That is the foundation of America. If we do that, we can restore America to that shining city on the hill to the glory of God. I encourage you, if the Body of Christ coalesces around Ted Cruz, a true man that believes in the Constitution and the rule of law, we will see him as the next president of the United States.”

Another Phony Supreme Court 'Precedent'

A couple of days after Justice Antonin Scalia’s death, Heritage Foundation fellow Hans von Spakovsky declared that the Supreme Court still had an “obligation” to count the votes Scalia had cast in preliminary conferences on pending cases, even though those votes aren’t always final.

He was particularly interested in Friedrichs, an important labor case that some observers believe will, without Scalia’s vote, end up in a tie that will preserve a lower court decision favorable to unions.

It turns out that von Spakovsky mentioned this idea again in a National Review article last week, even presenting evidence of a “precedent” for counting the votes of deceased justices:

One final note on the terrible tragedy of Justice Scalia’s untimely death: what to do about the pending cases in which the Supreme Court justices already had cast their internal vote on how they would rule on the case. Everyone is assuming that Justice Scalia’s votes have to be discarded because the decisions have not yet been publicly released. But there is precedent for Chief Justice John Roberts to give effect to those votes.

In D. A. Schulte, Inc. v. Gangi (1946), the dissenting opinion by Justice Felix Frankfurter, and joined by Justice Harold Burton, specifically says that the “late Chief Justice [Harlan Stone] participated in the hearing and disposition of this case and had joined in this dissent.” Stone died on April 22, 1946; the date of the Gangi decision is April 29, 1946. Likewise, Justice Joseph Story noted the agreement of the late Chief Justice John Marshall in his dissent in New York v. Miln (1837), writing, “I have the consolation to know that I had the entire concurrence, upon the same grounds, of that great constitutional jurist, the late Mr. Chief Justice Marshall.”

Von Spakovsky’s “precedent” for counting the preliminary vote of a deceased justice is two cases in which the authors of dissents mentioned that a late colleague had been on their side of an issue. In the first, the dissenters mention the views of the late Chief Justice Harlan Stone, but do not appear to count him as an official joiner of the dissent. In the second, the dissenters cite the views of Chief Justice John Marshall, who had died more than a year before the opinion was issued and had already been replaced by Chief Justice Roger Taney — again, apparently citing his approval to make a point rather than as an official vote in the case.

In neither case was the vote of the deceased justice being counted. And in neither case would the vote of the deceased have changed the outcome of the case, as von Spakovsky seems to hope Scalia’s vote would in the Friedrichs case.

It’s almost as if conservatives are pulling Supreme Court “precedents” out of thin air.

Tony Perkins: Obama's 'Cultural Time Bombs' Will Destroy America

On his “Washington Watch” radio program yesterday, Family Research Council President Tony Perkins chatted with Sen. Mike Lee, R-Utah, about why the Senate must rebuff any Supreme Court nominee put forward by President Obama, a conversation which led Perkins to warn about the imminent demise of the U.S.

Perkins urged Senate Republicans to hold the line in their refusal to consider a new justice until next year, claiming that the Senate would be protecting the Constitution by refusing to carry out its constitutional duties.

A new justice appointed by Obama, he warned, will undermine “the fabric of our Constitution and the republic will be at risk.” (Four years ago, Perkins similarly asserted that Obama’s re-election would mean the destruction of America).

Perkins, after praising us here at Right Wing Watch because “I don’t say anything that I don’t want exposed,” repeated his claim that the 2016 election could be the last election ever held in America unless the next president stops Obama’s “cultural time bombs” from exploding:

Every election is important because of what this president, President Barack Hussein Obama, has done in the last seven-plus years, we have moved this nation to a point that the next president cannot be a Republican who simply does business as usual and stops some of the bad stuff. This president went beyond pushing the envelope.

He has planted cultural time bombs that will eventually go off. The next president has to undo those and render them safe and turn this nation around and that means you’re going to have to have an aggressive leader. And if we don’t have that, I’m convinced that as a republic, we won’t long survive. The country as a geographical land mass will continue, but the republic, the 240 years that we’ve had, I’m not sure we’ll have another election.

Donald Trump Vows To Appoint Far-Right Supreme Court Justices Like Clarence Thomas

One of the many myths surrounding Donald Trump is that he is a moderate on social issues. While he has certainly not made issues like abortion or gay marriage a central part of his campaign, the notion that he is simply ignoring them or is covering up his real opinion belies the fact that a Trump presidency could do real damage to gay rights and reproductive freedom where it matters the most: the courts.

If elected president, Trump would likely get the chance to nominate at least one Supreme Court justice and dozens if not hundreds of federal judges.

He has vowed that he would appoint judges who would “unpass” Roe v. Wade, the landmark abortion rights decision, and disagree with what he lambasted as a “shocking” marriage equality ruling, Obergefell.

While speaking today with televangelist Pat Robertson at Robertson’s Regent University, Trump specifically praised Samuel Alito and Clarence Thomas, the two most conservative justices on the Supreme Court. “Justice Thomas doesn’t get enough credit,” Trump said. “He’s a wonderful man, he’s a wonderful guy.”

After criticizing Chief Justice John Roberts as not being conservative enough, and attacking Ted Cruz for promoting his nomination, Trump said he would appoint “pro-life” justices who are “very conservative” and “like Judge Scalia.”

Trump also promised Robertson that he would return to Regent University after he is elected president.

GOP Refuses To Meet With Obama On SCOTUS, But Obama's The 'Divisive' One!

Update: Grassley and McConnell have at last accepted Obama’s invitation to discuss potential nominees at the White House, although they are still refusing to hold hearings or a vote on any potential nominee. 

As Senate Republicans close ranks in an attempt to prevent President Obama from nominating the next Supreme Court justice, Republicans on the Senate Judiciary Committee have declared that they will refuse to hold a hearing on Obama’s nominee, no matter who it is. On top of that, the Des Moines Register reports that the committee’s chairman, Sen. Chuck Grassley of Iowa, hasn’t even responded to an invitation from the White House to discuss possible nominees.

The Republicans’ unprecedented Supreme Court blockade exposes the lie that has undergirded eight years of GOP obstructionism: that President Obama is “the most divisive” president in history and that he refuses to reach across the aisle.

Senate Majority Leader Mitch McConnell, who just an hour after the news broke of the death of Justice Antonin Scalia, made it clear that he didn’t intend to consider any Obama nominee to fill Scalia’s seat, has called Obama the “most divisive” president he’s worked with. Marco Rubio, the Florida Republican senator and presidential candidate, has said that Obama is the most “divisive” political figure in modern history. The claim has been repeated over and over again in talk radio and the halls of Congress. Texas Republican senator and presidential candidate Ted Cruz complained after Obama’s final State of the Union address last month that the president “lectures us on civility yet has been one of the most divisive presidents in American history."

As Paul Waldman wrote in “The Week” last month, the primary example of the “divisive” Obama that Republicans point to is that he “crammed ObamaCare down our throats” — a strange way to explain a bill that became law through the legislative process.

Waldman noted:

Let's just remind ourselves of how Republicans have treated Obama over his seven years in office, with a few of the greatest hits. You can start right on the day of his inauguration, when congressional Republicans gathered for a dinner at which they decided that rather than seek areas of cooperation with the new president, they would employ a strategy of maximum confrontation and obstruction in order to deny him any legislative victories.

They followed through on this plan. As Mitch McConnell explained proudly in 2010, "Our top political priority over the next two years should be to deny Barack Obama a second term."

The Affordable Care Act itself was designed as something of a political compromise solution, containing elements of plans previously championed by Republicans. But Republicans in Congress closed ranks against the reform, eventually shutting down the government in protest of the law.

Senate Republicans’ attitude toward Obama’s judicial nominees has followed a similar pattern,even before the current Supreme Court showdown. As we noted last week, right-wing pressure groups and their allies in Congress, including Cruz and Sen. Mike Lee, were trying to shut down the federal judicial confirmation process in Obama’s final year before Scalia’s death.

If Grassley is really now refusing to even meet with Obama to discuss potential Supreme Court nominees, the Right should finally retire its talking point that it’s Obama who refuses to reach across the aisle.

Meet A Law Professor Conservatives Turn To On Marriage, Immigration And The SCOTUS Blockade

Among the right-wing figures encouraging Republican senators to block any nominee President Obama might make to the U.S. Supreme Court last week was law professor John Eastman, who right-wing radio host Hugh Hewitt calls “perhaps the most revered center-right specialist in America.” If that’s true, it may be because Eastman puts himself out there on so many issues that rile today’s far-right. He chairs the anti-gay National Organization for Marriage and he is also one of the leading voices in opposition to birthright citizenship. His advocacy pretty much covers the right wing’s public policy wish list.

On Hewitt’s radio show on February 15, Eastman called Scalia’s death a “devastating loss” not only for Scalia’s family “but also for our understanding of the appropriate role of the court in constitutional adjudication.”  Eastman agreed with Hewitt’s assertion that it is “well within” Republican senators’ constitutional authority “not to give a hearing or a vote to President Obama’s nominee,” saying that Republicans “ought to oppose with every bit of their power” the kind of nominee he would expect from President Obama, someone who he believes will “try and nail the lid in the coffin on advancing his radical transformative agenda.”

Eastman said Scalia’s death will put the role of the high court at the center of the presidential campaign, declaring that “there is a fundamental difference” between the political parties on a central question: “Do we live in an autocratic, unelected regime run by nine black robed individuals, or are we the people the ultimate sovereigns in this country?”

That’s the kind of rhetoric that warms the hearts of far-right leaders like Sharron Angle, the Tea Party activist who lost a challenge to Nevada Sen. Harry Reid in 2010 and whose is encouraging an effort by a couple of state legislators to draft her for a 2016 Senate bid. “The U.S. Senate should absolutely put a hold on any nomination this President sends to the hill,” Angle said last week. “We have to stop the damage to the Constitution now!”  Angle went even further, declaring that Eastman would make the “perfect” Supreme Court justice.

If he ever did make it onto the court, Eastman would manage the remarkable feat of being to the right of the late Justice Scalia. Like Chief Justice John Roberts, Scalia opposed the Supreme Court’s infamous 1905 Lochner decision, which ushered in an era in which the court routinely rejected economic regulations, like a state limiting the hours employees could be required to work, and exhibited hostility to union activity. On Hewitt’s show, Eastman recalled Scalia turning a speaking invitation into a forum on Lochner, on which Scalia disagreed with Eastman, who is part of a pro-Lochner movement in right-wing legal circles.  Eastman also takes a fringe position, one held on the current Supreme Court only by Justice Clarence Thomas, that the First Amendment’s ban on the establishment of religion cannot be properly applied to the states.

Eastman is a professor  at Chapman University’s Fowler School of Law in California and is the founding director of Center for Constitutional Jurisprudence, affiliated with the conservative Claremont Institute. He stepped down as dean of the law school to run for California attorney general in 2010. National right-wing leaders, including Ed Meese, Ed Whelan, Bill Bennett, Michele Bachmann and others backed his bid, but he failed to win the nomination.  Eastman, who clerked for Supreme Court Justice Clarence Thomas and 4th Circuit Appeals Court Judge Michael Luttig, worked at the U.S. Commission on Civil Rights during the Reagan administration. In 1990 he was the GOP nominee for Congress from the 34th District in California.

A few highlights (or lowlights) from Eastman’s activism and rhetoric:

Role of the Courts

Eastman, who chairs the National Organization for Marriage, appeared at a July 2015 Senate hearing convened by Ted Cruz after the Supreme Court’s marriage equality ruling, which Cruz called “the very definition of tyranny.”

Eastman agreed with Cruz’s call for Supreme Court justices to be subjected to judicial retention elections and term limits, and added his own proposals to keep the court in check. He said a simple majority of states should be allowed to override “egregiously wrong” Supreme Court decisions, and that Congress should be able to veto Supreme Court rulings by a two-thirds majority in both houses.  He also suggested that Congress should impeach judges whose rulings it considers unconstitutional.  And he interpreted Scalia’s dissent in the marriage case to be “an invitation to executive officials throughout the land to refuse to give their ‘aid’ to the ‘efficacy of the’ Court’s judgment in the case.”

I truly hope this Committee will give serious thought to these proposals, advancing them with your approval, first to the full Senate, then to the other House, and then ultimately to the people for consideration and hopefully ratification. But I encourage you to do that soon, as I sense in the land a strong feeling that our fellow citizens are about out of patience with the “long train of abuses and usurpations” that have emanated from an unchecked judiciary. They have demonstrated for a very long time now that they, in the words of the Declaration of Independence, have been “more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms [of government] to which they are accustomed.” We should not expect that the patience of our fellow citizens will last forever. Let us now, therefore, in good faith, advance solid proposals to restore and expand checks and balances on the judiciary before that patience runs out.

Marriage and LGBT Equality

In 2000, Eastman called homosexuality an indicator of “barbarism.” He called the Supreme Court’s 2003 Lawrence decision, which overturned laws criminalizing consensual gay sex, a “despotic” decision.

Given his position at the National Organization for Marriage, which he has chaired since 2011, it is not surprising that Eastman’s rhetoric in opposition to marriage equality has been consistently hostile. When he took the position, he told the conservative National Catholic Register, “Evil will be with us always, and it requires constant vigilance to defeat.”

At the 2012 Conservative Political Action Conference, Eastman attacked the Ninth Circuit decision overturning California’s Proposition 8 and warned that legalizing marriage for same-sex couple would hurt children and have “catastrophic consequences for civil society.” He said marriage equality “would destroy the institution that has been the bedrock of civil society since time immemorial.”

At the June 2014 March for Marriage in Washington, organized by NOM, Eastman said that Justice Scalia’s dissent from the court’s 2013 decision overturning the federal Defense of Marriage Act was “a call to arms.” “Let the justices know that we will not tolerate them redefining marriage!”  he said. “The good of society and the wellbeing of our children depend on it!”

In 2014, after the Supreme Court refused to hear an appeal of a federal court ruling that made legalized marriage for same-sex couples in North Carolina, Eastman told North Carolina legislative leaders to defend the state’s marriage ban anyway — even though Attorney General Roy Cooper had said it would be a waste of taxpayer money. The Charlotte Observer later reported that the Claremont Institute, where Eastman serves as the director for the Center for Constitutional Jurisprudence, had billed North Carolina $78,200 for its work defending the law, a price that it said included a “public interest” discount.

In an April 2015 podcast for the Constitution Center following oral argument in Obergefell, Eastman said it was “perfectly legitimate” to limit marriage to opposite-sex couples due to their “unique procreative ability.”  He denounced the Supreme Court’s 2015 marriage equality ruling as “not only wrong, but illegitimate,” going so far as to encourage anti-equality groups in Alabama to resist the decision. 

In 2015, commenting immediately after the Supreme Court’s marriage equality ruling for a Federalist Society podcast, Eastman called it “surreal beyond belief” to believe the people who ratified the 14th Amendment would believe that it mandated “the redefinition of a core social institution that is both religiously and biologically grounded.”

Eastman has praised Rowan County, Kentucky, clerk Kim Davis, who tried to stop her county office from issuing marriage licenses to same-sex couples after the Supreme Court’s ruling, saying  “She confronted what I call a Thomas More moment, and she’s demonstrated her saintliness in how she’s responded to this.”

Outside of marriage equality, Eastman has said that a ruling by the Equal Employment Opportunity Commission’s decision to treat discrimination on the basis of sexual orientation as a form of sex discrimination was an example of the “utter lawlessness” of the way “these agendas are being pushed through.”  Last July Eastman said that some gay rights activists “in their candid moments … have admitted that they want to destroy the church, and they want to destroy the family…”

A few months ago, Eastman reacted to Hillary Clinton’s address to the Human Rights Campaign in a radio interview in which he denounced the LGBT equality movement as “fascist” and claimed that it was promoting pedophilia:

This is not about anti-discrimination laws any more. This is about forcing people to bend the knee to an agenda to say things that are inherently immoral are in fact normal and moral … It’s a very fascist movement that forces a viewpoint on other people that disagree ... We’re finding challenges to age of consent rules because a good portion of this movement seeks to remove age of consent so they can have sex with teenage boys.

He claimed that the LGBT movement’s actual goal was not to achieve the right to marry but to destroy the institution of marriage, because the family is a bulwark against unlimited and omnipotent government.

Support for Uganda’s Anti-Homosexuality Act

In 2015, Eastman gave a speech at the Family Research Council defending Uganda’s notorious Anti-Homosexuality Act and saying he hoped the law — rejected by the country’s Supreme Court over a procedural issue — would come back “in short order.”

He cited as justification for the law President Mouseveni’s claims that “western groups” were trying to use the schools to recruit children into homosexuality.  Eastman said that the law’s provision for lifetime in prison was only for “aggravated homosexuality,” which he defined as “homosexual acts” by someone with HIV/AIDS or “homosexual acts with minors.” In reality, the law’s definition of “aggravated homosexuality” also included serial offenders. As he noted, the law included prison terms for someone who “counsels” a person into homosexuality, a provision that seemingly did not bother Eastman. The law would even have imposed a prison term of up to seven years for attempting “to commit the offence of homosexuality.” Eastman denounced American opposition to the bill as “cultural imperialism.”

Eastman also joined Family Watch International’s Sharon Slater as a speaker at a “National Family Conference” in Nairobi in 2015; the conference was sponsored by Kenya Christian Professionals Forum, a group that not only supports the country’s law criminalizing homosexual sexual activity, but fought to prevent LGBT groups from even being allowed to legally register as advocacy organizations.

Immigration as Invasion

Eastman has also become one of the most visible advocates for eliminating the 14th Amendment’s protection of birthright citizenship. Actually, Eastman believes there’s no need to change the Constitution or law in order to deny citizenship to children born in the U.S. to undocumented immigrants, just a court decision to correct what he thinks is an erroneous interpretation of the 14th Amendment.

In December 2014, Eastman testified at a Senate Judiciary Committee hearing on President Obama’s executive actions on immigration, which he said violated the Constitution. Eastman rejects the idea that the administration’s actions reflect an exercise of prosecutorial discretion.  Obama, he said, “has taken it upon himself to drastically re-write our immigration policy, the terms of which, by constitutional design, are expressly set by the Congress.” 

Eastman has been at this for a long time. He testified before a House subcommittee in 2005 in favor of reconsidering birthright citizenship in the wake of 9/11, and he published a paper for the Heritage Foundation in 2006 urging Congress to assert its authority and make clear that children born to people who are not in the country legally are not considered citizens.

In a 2006 Federalist Society exchange, he said:

Our current non-enforcement policy has fostered "outlaw" communities of non-citizens amongst our midst, who not only work illegally, but who are bankrupting our social services systems and who, tragically, are preyed upon by trans-border thugs well aware that their victims will not report crimes for fear of deportation. This is no way to treat fellow human beings. Why should we expect that the new spate of amnesty proposals, whether denominated "guest worker" plans or something else, will not also continue the incentive for illegal immigration that the 1986 Act provided?

In that same Federalist Society Q&A, he noted that the Constitution requires the president to protect the country against invasion, adding, “We have been invaded by more than 10 million people, and it is the president's duty, not just right, to defend against that invasion.” He also challenged the notion of dual citizenship, calling it “self-contradictory” and saying “it has no place in our existing law.”

In 2011, he co-authored an article for a Federalist Society publication defending Arizona’s infamous anti-immigrant bill SB 1070, writing that “Arizona was well within its rights to adopt SB 1070. Indeed, given the border lawlessness that Arizonans are facing, it is not a stretch to argue that the Arizona government may well have been duty-bound to take some such action.”

Church-State

Eastman is critical of more than a half century’s jurisprudence on church-state issues. He says that under the modern view of church-state separation “we completely destroy the foundation for our entire constitutional system.” He has argued that a state taxing people to support an official church, as some states did early in the nation’s history, was not all that coercive and, as we noted earlier, he believes it is wrong to interpret the 14th Amendment as applying the Establishment Clause of the First Amendment to the states.

Eastman champions an expansive reading of the Religious Freedom Restoration Act in line with the Supreme Court’s Hobby Lobby ruling and backs the passage of additional state RFRAs and religious exemptions. He has joined Religious Right leaders in portraying Rowan County, Kentucky, clerk Kim Davis as a heroine for refusing to marry same-sex couples.

Anti-Union

Eastman, not surprisingly, supports right-wing attacks on unions. In a July 2015 blog post, Eastman argued that it is “time to drive a stake through the heart of mandatory dues.” Eastman noted that Justice Samuel Alito, writing in an earlier decision, essentially invited the kind of lawsuit that the Court has agreed to hear this term in the Friedrichs case, which conservatives hope the Supreme Court will use to dramatically weaken the power of public employee unions.

Constitutional Limits on Spending

Eastman has also argued that the country’s view of the Constitution’s Spending Clause has been wrong ever since the Supreme Court’s 1936 decision in United States v. Butler. He believes Congress does not have the constitutional authority to make appropriations for “internal improvements,” citing, among other things, President James Buchanan’s veto of a bill that would have granted public lands to states for the establishment of agricultural colleges.

In 2014 he joined the advisory council of the Compact for America, a group whose goal is to have the states propose and ratify a balanced budget amendment to the U.S. Constitution through an “Article V” convention. Under the proposal, Congress could only increase the debt limit with the approval of a majority of the state legislatures; any new sales or income taxes would require two-thirds approval of both houses of Congress.

Reproductive Rights

At a Federalist Society debate, Eastman referred to Roe v. Wade as one of the Supreme Court’s “grievous mistakes” — like its affirmation of the Affordable Care Act’s constitutionality — to which he would not give deference.  At a Federalist Society panel from 2014 on the ACA’s contraception mandate, he argued that there is basically no distinction between individuals and the corporate structure when it comes to freedom of conscience, a view adopted by the Court majority in Hobby Lobby, which has opened a door to corporations claiming exemptions from generally applicable laws based on the religious beliefs of company owners, such as complying with the requirement that insurance provided for employees include coverage for contraception.  

 

Heritage Fellow: Scalia's Vote Should Still Count From Beyond The Grave

Hans von Spakovsky, a senior fellow at the conservative Heritage Foundation and a former George W. Bush administration Justice Department official, said last week that the Supreme Court should count the late Justice Antonin Scalia’s votes on pending cases in which the justices have already cast preliminary votes.

Von Spakovsky mentioned in particular Friedrichs v. California Teachers Association, a case that would deal a blow to unions and in which Scalia was likely on the anti-union side.

In an interview with American Family Radio’s Sandy Rios on February 15, von Spakovsky said that Chief Justice John Roberts has “an absolute obligation” to count Scalia’s vote in Friedrichs and other cases in which justices have already held conferences.

“After oral arguments before the court, the justices leave the courtroom and they go to a conference room in the Supreme Court building and they take a vote,” he said. “So that’s the point at which they know how a case is going to be decided and the chief justice then makes assignments of who will write the majority opinion and etc. I think the chief justice has an absolute obligation to give credit to Scalia’s vote in those cases that have already been decided, even if he didn’t write his opinion yet, because they know how he would have voted.”

“So on particular cases like the Friedrichs case … that case was argued on January 11, so they know how Justice Scalia cast his vote in that case and I think the chief justice should give credit to it,” he said.

Von Spakovsky is correct that justices cast votes in a private conference after hearing cases … but those votes sometimes change as the justices work on their opinions. Shortly after Scalia’s death, veteran Supreme Court attorney Roy Englert told ABC that the “vote of a deceased justices does not count.”

We can’t help but point out the irony that von Spakovsky has been one of the primary drivers of the myth that massive voter fraud requires suppressive laws that make it harder to vote. One of the voter-fraud specters he has raised is that of people casting votes on behalf of people who have died.

No, Biden Didn't Call For Rejecting All Supreme Court Nominees In Election Years

Within hours of the death of Supreme Court Justice Antonin Scalia earlier this month, conservatives retroactively invented a bogus “tradition” that Supreme Court justices are never confirmed in presidential election years. That claim is demonstrably false, but conservatives are sticking with it in an attempt to justify their efforts to keep President Obama from naming the next Supreme Court justice.

Today, the pro-obstruction crowd thought it got a boost when a short clip of now-Vice President Joe Biden was unearthed from the depths of the C-SPAN archives. In the clip of the 1992 floor speech, Biden, who was then chairman of the Senate Judiciary Committee during what turned out to be the last year of George H.W. Bush’s presidency, urges the president to, in the event of a Supreme Court vacancy, “not name a nominee until after the November election is completed.”

Hypocrisy!

Well, not quite.

As ThinkProgress’ Igor Volsky and Biden himself have pointed out, when taken in context, that wasn't Biden's point. The then-senator made the remarks in the context of a long speech bemoaning the increased politicization of the confirmation process and, in Biden’s words, urging the White House and the Senate to “work together to overcome partisan differences to ensure the Court functions as the Founding Fathers intended.”

Secondly, even if you were to claim that Biden was offering some new rule for blocking Supreme Court nominations, that rule wouldn't cover the current situation.

Look at the timestamp on the video. Biden was speaking on June 25, 1992 about filling a vacancy if a justice “resigns tomorrow or within the next several weeks resigns at the end of the summer.” By June 25, the presidential primaries were over and Bill Clinton was the presumptive Democratic nominee. That’s a very different point in an election year than we are in today, when the vacancy opened so very early on in the presidential nominating contests and with the risk of a Supreme Court seat remaining open for more than a year, severely disrupting two consecutive terms.

If you go back to read the transcript of Biden’s remarks, he repeatedly states that he is concerned about vacancies that occur “in the summer or fall of a presidential election year” — not vacancies that occur as early in the year as Justice Scalia’s did. The last four Supreme Court confirmations took an average of 75 days from nomination to confirmation, meaning that if President Obama nominates anyone in the next month, they could be confirmed well before the period that Biden was supposedly arguing should be off-limits for Supreme Court nominations.

There is still no “tradition” of shutting down judicial nominations for the entire last year of a presidency or of leaving the Supreme Court short-handed for an entire year.

And, as Volsky notes, while Biden didn’t face a Supreme Court vacancy in 1992, his Judiciary Committee did continue approving Circuit Court nominees well through the summer and fall of the election year, a stark contrast to current Republican threats to shut down the judicial nominations process entirely this year:

 

 

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Supreme Court Posts Archive

Miranda Blue, Wednesday 05/11/2016, 11:29am
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Miranda Blue, Tuesday 05/10/2016, 2:31pm
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Miranda Blue, Monday 05/09/2016, 1:15pm
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Brian Tashman, Monday 05/09/2016, 11:40am
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Miranda Blue, Wednesday 05/04/2016, 11:11am
When Justice Antonin Scalia died in February, the Senate GOP quickly vowed to keep his Supreme Court seat open until the next president takes office. They kept that vow even after President Obama nominated Merrick Garland, somebody whom Republicans had previously praised as a best-case scenario for a nominee from a Democratic president. Now, after Ted Cruz dropped out of the Republican race last night, it’s all but certain that the next president will be Hillary Clinton, Bernie Sanders or Donald Trump. We can assume that Senate Republicans aren’t hoping that Clinton or Sanders... MORE
Miranda Blue, Tuesday 05/03/2016, 11:28am
Among the groups pressuring Republicans in the Senate to continue their blockade of President Obama’s Supreme Court nominee is Gun Owners of America, a gun lobby group that holds considerable sway on Capitol Hill despite its history of promoting wild conspiracy theories, frequent warnings to elected officials that they should fear assassination and deep ties to radical militia groups and white supremacists. GOA has circulated a petition to its members claiming that Obama’s nominee, Merrick Garland, “would reverse your ability to own a gun” and “hates the Second... MORE