“It appears likely, moreover, that the GOP-controlled judiciary will be a thorn in Biden’s side. Trump-appointed Justice Neil Gorsuch, for example, is already laying the groundwork to strip federal agencies of much of their power to regulate after Biden takes office, and Gorsuch almost certainly has the five votes he needs to make this happen.
The Republican Party dominates the federal judiciary in no small part due to six years of work by outgoing Senate Majority Leader Mitch McConnell. When Justice Antonin Scalia died nearly a year before President Barack Obama left office, McConnell announced almost immediately that Obama’s Supreme Court nominee would get the cold shoulder from a Republican Senate. When Justice Ruth Bader Ginsburg died shortly before the 2020 election, McConnell ensured that her conservative replacement, Amy Coney Barrett, would be confirmed just days before the nation voted to cast Trump out of office.
During the final two years of Obama’s presidency — the only two years of his presidency that Republicans controlled the Senate — McConnell imposed a near-total blockade on new appointments to the federal courts of appeals (often referred to as “circuit” judges). The result was that now-outgoing President Donald Trump got to fill nearly all of the judicial vacancies that came open during his presidency, plus nearly all of the appellate court seats Obama should have filled in his final two years.
Although Obama served for twice as long as Trump, there are currently 53 active circuit judges appointed by Trump and only 50 appointed by Obama. (Obama’s judicial confirmations also got off to a fairly slow start, though they picked up considerably once the Senate changed its rules in 2013 to make it easier to confirm judges.)”
“Arizona’s Supreme Court had five judges for 56 years. But on December 19, 2016, thanks to a GOP-authored bill that was opposed by every Democrat in the state Legislature, Republican Governor Doug Ducey held a ceremony in the Old Capitol building to swear in a sixth justice, and then a seventh.
In all, Ducey has appointed five of the seven justices on the state court, taking a personal interest in vetting candidates with questions designed to ferret out a fidelity to textualism and an inclination to uphold, rather than overturn or tinker with, the law. His appointments, including the addition of the two new justices, have eliminated the court’s progressive caucus and swung it from a more moderate conservative tilt to one that emphasizes libertarianism, populism, and law and order, in line with Ducey’s own views. And the ages of its younger members mean the court likely will stay that way for years.”
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“at least 10 states have attempted to change the size of their courts over the past decade, with Arizona and one other state—Georgia—succeeding. And most of these efforts were spearheaded by Republicans.”
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“GOP lawmakers pitched the idea of expanding the Arizona Supreme Court by arguing that businesses needed clarity on the law more quickly than five justices could provide, and that the growing state needed more voices on the bench to represent its diverse citizenry. While Ducey consistently has said he was not packing the court for political purposes, Republicans acknowledge they wouldn’t have proposed the change if it would have meant handing over two seats for a Democratic governor to fill.”
“In less than four years as president, President Trump has done nearly as much to shape the courts as President Obama did in eight years.
Trump hasn’t simply given lots of lifetime appointments to lots of lawyers. He’s filled the bench with some of the smartest, and most ideologically reliable, men and women to be found in the conservative movement. Long after Trump leaves office, these judges will shape American law — pushing it further and further to the right even if the voters soundly reject Trumpism in 2020.”
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“Both Obama and Trump appointed two justices to the Supreme Court, but Trump’s impact on the highest Court far exceeds Obama’s, because Trump replaced the relatively moderate conservative Justice Anthony Kennedy with the hard-line conservative Brett Kavanaugh (after appointing conservative Neil Gorsuch to fill Antonin Scalia’s vacant seat). Obama’s appointees — Sonia Sotomayor and Elena Kagan — largely maintained the balance of power on a conservative Court, while Trump has shoved that Court even further to the right.
And that’s not counting Trump Supreme Court nominee Amy Coney Barrett, who is likely to be confirmed soon.
On the courts of appeal, the final word in the overwhelming majority of federal cases, more than one-quarter of active judges are Trump appointees. In less than four years, Trump has named a total of 53 judges to these courts, compared to the 55 Obama appointed during his entire presidency.
In their first terms, Obama appointed 30 appellate judges; President George W. Bush filled only 35 seats on the federal appellate bench; President Clinton, 30; President George H.W. Bush, 42; and President Reagan, 33.”
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“Before he became president, Trump promised to delegate the judicial selection process to the Federalist Society, a powerful group of conservative lawyers that counts at least four Supreme Court justices among its members. “We’re going to have great judges, conservative, all picked by the Federalist Society,” Trump told a radio show hosted by the right-wing site Breitbart while he was still a candidate.
The Federalist Society spent decades preparing for this moment, and they’ve helped Trump identify many of the most talented conservative stalwarts in the entire legal profession to place on the bench.”
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” “The average age of circuit judges appointed by President Trump is less than 50 years old,” the Trump White House bragged in early November, “a full 10 years younger than the average age of President Obama’s circuit nominees.”
Trump’s nominees will serve for years or even decades after being appointed. Even if Democrats crush the 2020 elections and win majorities in both houses of Congress, these judges will have broad authority to sabotage the new president’s agenda.
There is simply no recent precedent for one president having such a transformative impact on the courts.”
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“Broadly speaking, there are two reasons Trump has had such an outsize influence on the federal courts.
The first reason is the effective blockade Senate Majority Leader Mitch McConnell imposed on appellate court confirmations the moment Republicans took over the Senate. McConnell’s effort to block Supreme Court nominee Merrick Garland is well-known. Less well-known are the many lower court nominees who received similar treatment. Under Trump, McConnell has turned the Senate into a machine that churns out judicial confirmations and does little else — he’s ignored literally hundreds of bills passed by the House. Under Obama, by contrast, McConnell’s Senate was the place where judicial nominations went to die.
The numbers here speak for themselves. In the final two years of the Obama presidency, when Republicans controlled the Senate, Obama successfully appointed only two federal appellate judges — and one of those judges, Kara Farnandez Stoll, was confirmed to a highly specialized court that primarily deals with patent law.
By contrast, 10 such judges were confirmed during the same period in the George W. Bush presidency, a period when Democrats controlled the Senate.
The second reason for Trump’s outsize impact on the judiciary is that when Democrats last controlled the Senate, one especially important Democrat — Judiciary Chair Patrick Leahy (VT) — took an unusually expansive view of the rights of the minority party.”
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“Leahy, who chaired the Committee for most of the Obama presidency, gave home-state senators a simply extraordinary power to block judicial nominees. Under Leahy, a single senator of either party could veto any nominee to a federal judgeship in their state”
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“Red-state Republicans used the power Leahy gave them to hold many judicial seats open until Obama left office. Sen. Ron Johnson (R-WI) effectively held a seat on the United States Court of Appeals for the Seventh Circuit open for eight years until Trump could fill it.”
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“The Eastland Rule also weakened Obama’s hand in negotiations with Senate Republicans, and sometimes forced him to name relatively conservative judges in order to placate senators who could veto judicial nominees.”
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“While Trump has been very successful at filling the bench with brilliant Republican partisans, a Democratic president is unlikely to enjoy similar success.
A badly malapportioned Senate means that to get even a bare majority in the Senate, Democrats have to win commanding popular vote majorities — and if Democrats don’t control the Senate, Democratic nominees could face the Merrick Garland treatment. Just look at the last two years of the Obama presidency if you want to know how a Republican Senate is likely to treat Democratic judicial nominees.”
“Arson, vandalism, and other acts of rioting have accompanied many of the anti-police-brutality protests around the country. But since this violence is often adjacent to protected First Amendment activities, law enforcement’s response needs to be careful, targeted, and proportionate. We should try to stop the violence and vandalism, but peaceful protesters shouldn’t be unjustly punished or otherwise dissuaded from exercising their rights to free speech and assembly.
By encouraging prosecutors to be as punitive as possible, Barr appears to be taking the exact opposite approach. His suggestion that they dust off sedition laws should alarm all civil liberties advocates.”
“If last week is any indication, the right to vote is unlikely to fare well in a judiciary that is increasingly dominated by Republicans: Voting rights cases out of Florida and Texas handed important victories to the GOP. At least one of those victories is likely to disenfranchise tens of thousands of voters altogether. (In Wisconsin, Democrats fared better this week in a ballot-printing case.)
The Florida case involves a longstanding dispute over individuals with felony convictions. In 2018, Florida voters overwhelmingly approved a state constitutional amendment intended to restore felons’ voting rights. But the state’s Republican-controlled legislature almost immediately enacted legislation seeking to prevent most of these individuals from actually being able to vote.
On Friday, in a party-line vote on Jones v. Governor of Florida, the Republican-controlled United States Court of Appeals for the 11th Circuit backed the state legislature’s play — effectively disenfranchising most of the people Floridians voted to reinfranchise.
One day earlier, a three-judge panel of the Fifth Circuit handed down its decision in Texas Democratic Party v. Abbott. That case involves an unusual Texas law that allows voters over the age of 65 to obtain an absentee ballot upon request — thus avoid voting in-person in the middle of a pandemic — but prevents most younger voters from voting absentee.
This kind of age discrimination is highly dubious under the 26th Amendment, which provides that “the right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” Nevertheless, a majority of the Fifth Circuit panel upheld Texas’s law in Texas Democratic Party.”
“A federal judge this week gave a blistering rebuke of qualified immunity, the legal doctrine that makes it difficult to sue police officers in federal court when they violate your civil rights.
“The Constitution says everyone is entitled to equal protection of the law—even at the hands of law enforcement,” wrote Judge Carlton W. Reeves of the U.S. District Court for the Southern District of Mississippi in a majority decision released yesterday. “Over the decades, however, judges have invented a legal doctrine to protect law enforcement officers from having to face any consequences for wrongdoing. The doctrine is called ‘qualified immunity.’ In real life it operates like absolute immunity.””
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“to overcome qualified immunity, a plaintiff must show that the defendant’s misconduct had been “clearly established” by existing case law—the standard pulled out of thin air by the Supreme Court in Harlow v. Fitzgerald (1982). In practice, this criterion requires that plaintiffs show a public official’s misbehavior is prohibited almost verbatim by a previous ruling from the same federal circuit or from the Supreme Court. That requirement is nearly impossible to meet. “This Court is required to apply the law as stated by the Supreme Court,” Reeves writes. “Under that law, the officer who transformed a short traffic stop into an almost two-hour, life-altering ordeal is entitled to qualified immunity. The officer’s motion seeking as much is therefore granted.”
It is not unheard of for a federal judge to show disdain for his own ruling. They are required to enforce precedents established by the Supreme Court, even when doing so defies common sense. (Federal judges can also be seen decrying the mandatory minimum sentences they are required by Congress to impose on defendants who meet statutory criteria.)
A review of current qualified immunity decisions is instructive. The legal doctrine has protected two cops who allegedly stole $225,000 while executing a search warrant; a sheriff’s deputy who shot a 10-year-old boy while aiming at the child’s non-threatening dog; a prison guard who forced a naked inmate to sleep in cells filled with raw sewage and “massive amounts” of human feces; two cops who assaulted and arrested a man for the crime of standing outside of his own house; two officers who sicced a police dog on a surrendered suspect. That list is not exhaustive.”
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“The Supreme Court has declined to hear a slew of qualified immunity cases and instead volleyed responsibility back to Congress. While such decisions should arguably be made by Congress, the Supreme Court created the very problem it now wants no part in solving.
“I do not envy the task before the Supreme Court. Overturning qualified immunity will undoubtedly impact our society,” Reeves writes. “Yet, the status quo is extraordinary and unsustainable. Just as the Supreme Court swept away the mistaken doctrine of ‘separate but equal,’ so too should it eliminate the doctrine of qualified immunity.””
“A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit split 2-1 along ideological lines.
The majority opinion, penned by Trump appointee Neomi Rao, said allowing the case to continue would intrude on the executive branch’s prerogatives to control criminal prosecutions. Rao said even scheduling a hearing — as Sullivan had done for next month — was improper under the circumstances because there was no good reason to doubt the government’s decision to reverse course.”
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“Rao’s majority opinion leans heavily on the “presumption of regularity” often afforded to executive branch decision-making — the notion that courts should presume prosecutorial decisions are made in good faith. Through this lens, Rao and Henderson concluded, the Justice Department’s discovery of new evidence that cast doubt on Flynn’s guilt should be treated with deference.
Wilkins, an Obama appointee, issued a sharply worded dissent. The government’s U-turn in the case, he said, was so abrupt that a judge could reasonably question it.
“This is no mere about-face; it is more akin to turning around an aircraft carrier,” Wilkins wrote.
Wilkins also complained that his colleagues were departing with normal federal court practice by prematurely intruding in the affairs of a district court judge who had not yet ruled.”
“A former judge selected to advise on a path forward in the criminal case against Michael Flynn is accusing the Justice Department of exercising a “gross abuse of prosecutorial power” to protect an ally of President Donald Trump, distorting known facts and legal principles to shield Flynn from a jail sentence.
The former federal judge, John Gleeson, skewered Attorney General Bill Barr’s handling of the case, describing it as an “irregular” effort that courts would “scoff” at were the subject anyone other than an ally of Trump. The 82-page excoriation featured a painstaking reconstruction of the Flynn case and accused DOJ of contradicting its own arguments and precedents to justify dropping the case against Flynn.
“Even recognizing that the Government is entitled to deference in assessing the strength of its case, these claims are not credible,” Gleeson wrote. “Indeed, they are preposterous.””
“Trump’s new order aims to limit social media companies’ legal protections if they don’t adhere to unspecified standards of neutrality. It comes just two days after Twitter fact-checked two of his tweets that made misleading claims about voting-by-mail in the 2020 elections.”
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“The order calls for limiting protections that a law called Section 230 offers tech companies like Twitter, Facebook, and Google by not holding them responsible for what users post on their platforms.”
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“To do this, the order tasks regulators at the Federal Communications Commission and the Federal Trade Commission to create new rules that could pull back some of those protections, potentially opening them up to a litany of lawsuits for libel, defamation, and other complaints.”
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“Critics — including, reportedly, some of Trump’s most conservative advisers — have warned the order could set a dangerous and unconstitutional precedent that the president can use executive powers to effectively censor companies for political reasons. Many legal experts say the order is largely toothless and will be challenged in court.”
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“Ironically, it’s actually Trump — not Twitter — who is wading into unconstitutional territory here. If Trump were to try to shut down social media companies in retaliation for Twitter’s fact-check of his tweets, that would be a clear violation of the First Amendment. It would be sure to invite a fierce legal challenge and would signal an alarming attempt by the president of the United States to wield his executive power against one of the most fundamental rights in this country.”
“The state of Georgia was supposed to hold an election Tuesday to fill a seat on the state Supreme Court. Justice Keith Blackwell, a Republican whose six-year term expires on the last day of this year, did not plan to run for reelection. The election, between former Democratic Rep. John Barrow and former Republican state lawmaker Beth Beskin, would determine who would fill Blackwell’s seat.
But then something weird happened: Georgia’s Republican Gov. Brian Kemp and the state’s Republican secretary of state, Brad Raffensperger, canceled Tuesday’s election. Instead, Kemp will appoint Blackwell’s successor, and that successor will serve for at least two years — ensuring the seat will remain in Republican hands.
On May 14, the state Supreme Court handed down a decision that effectively blessed this scheme to keep Blackwell’s seat in the GOP’s hands. The court’s decision in Barrow v. Raffensperger is unusual in many regards — among other things, six of the state’s regular Supreme Court justices recused from the case, and they were replaced by five lower court judges who sat temporarily on the state’s highest court. The court’s decision in Barrow turns upon poorly drafted language in the state constitution, which does suggest that Blackwell, Kemp, and Raffensperger’s scheme was legal.”
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“In late February, just a few days before the deadline for candidates to file to run to replace Justice Blackwell was about to expire, Blackwell sent a letter to Kemp announcing that he intends to resign his seat, effective November 18. That means that Blackwell will leave office a few weeks before his term was set to expire on December 31.
Shortly after receiving this letter, Kemp formally accepted Blackwell’s future resignation. The governor then informed Raffensperger, the state’s chief elections officer, that he intended to fill Blackwell’s seat by gubernatorial appointment. In response, Raffensperger canceled the election to fill Blackwell’s seat, which was scheduled for May 19.
Both Democratic candidate Barrow and Republican candidate Beskin filed lawsuits seeking to reinstate the election, but these pleas were rejected by the state Supreme Court in a 6-2 vote.”
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“an appointed justice may serve until January 1, 2023 — and longer, if that justice eventually wins the 2022 election. The new justice will also be able to run with all the advantages incumbency provides.”
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“As a practical matter, this decision is likely to prove very easy for retiring justices to game if they belong to the same political party as the incumbent governor. Indeed, under the court’s decision in Barrow, Blackwell likely could have announced that he would resign effective December 30 — just one day before his term would have expired — and Kemp still would have gained the power to name Blackwell’s replacement.”