Obama Nominates Merrick Garland for SCOTUS Vacancy Caused By Scalia's Death

Today President  Barack Obama nominated Merrick Garland, Chief Judge of the U.S. Court of Appeals for the  D.C. Circuit to fill the vacancy on the United States Supreme Court caused by the death of Antonin Scalia on February 13.

Garland, 63, is currently the chief judge of the U.S. Court of Appeals for the D.C. Circuit. A former prosecutor, he's also viewed as a moderate. And he has cultivated a reputation for openness and collegiality at the D.C. Circuit, a bench that's sometimes called the second most important in the land. 

Garland will visit Capitol Hill on Thursday to begin meeting with legislators, Obama said. 

After the announcement was made, Senate Majority Leader Mitch McConnell reiterated his pledge that the Senate would not take any steps toward confirming an Obama nominee. McConnell's fellow Republicans in Congress echoed his comments.

It should be noted that if the Senate does not hold hearings on Obama's choice it will be the first time in the modern era such obstruction has occurred. Despite Senator McConnell's statements, at least 8 Republican Senators have said that they will meet with Judge Garland.

Ding Dong Scalia Is Dead! Obama Will Get 3rd SCOTUS Pick!

Wow! There are multiple reports (first broken by the San Antonio Times) that 79-year-old Antonin Scalia, the longest-serving member of the United States Supreme Court (appointed by President Ronald Reagan in 1986) has been found dead at a ranch in Texas.

This means that President Barack Obama will have a 3rd opportunity to appoint a Justice to the Court. Previously he has appointed Sonia Sotomayor (2009) and Elena Kagan (2010)

The Republicans will almost certainly claim there is not enough time to approve a justice who will be breaking the now 4-4 tie between left-leaning and right-leaning remaining on the Court.

Regardless, the Supreme Court will become a major factor in the 2016 presidential race and that has to increase turnout and help the Democratic nominee.

SCOTUS Says Oral Argument Date For April 28 In Marriage Equality Cases

The United States Supreme Court has set the date for oral arguments in the four marriage equality cases from the 6th U.S. Circuit that it earlier agreed to hear appeals of: Tuesday April 28.

On January 16, the United States Supreme Court announced that this year, they will hear arguments in a case on the question of whether same-sex couples should have the freedom to marry and if anti-marriage laws nationwide should be struck down as unconstitutional. The Court granted review of an out-of-step ruling from the U.S. Court of Appeals for the 6th Circuit, which ruled in November against the freedom to marry in Kentucky, Michigan, Ohio and Tennessee. In each of these cases, federal judges had ruled in favor of the freedom to marry for all, and the 6th Circuit reversed each decision. 

The arguments are in the cases Obergefell v. Hodges from Ohio, Tanco v. Haslam from Tennessee, DeBoer v. Snyder from Michigan, and Bourke v. Beshear from Kentucky. The states' response briefs are due March 17, and final reply briefs are due April 17.

A final ruling deciding the fundamental question about whether same-sex couples have a fundamental right to marry (or that denying this right to same-sex couples unconstitutionally discriminates against them) will be issued by July 2015.

SCOTUS Considers Voter Ban On Affirmative Action Today

Today there will be an important oral argument before the United States Supreme Court that could determine whether race-conscious remedies of past discrimination conducted by public and private entities (i.e. also known as affirmative action) will have a future in the United States.

The High Court will consider Schuette v. Coalition to Defend Affirmative Action, 12-682. SCOTUS blog summarizes the issue as: "Whether a state violates the Equal Protection Clause by amending its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions."

The Los Angeles Times reports that we in California have an interest in this legal skirmish over Michigan's voter-approved ban on affirmative action because California has a similar measure in its state constitution thanks to the 1996 passage of Proposition 209. In fact voters in Michigan, California, Arizona and Washington have all passes similar ballot measures banning "preferential treatment" based on race or sex in public education.

[Mark] Rosenbaum and the American Civil Liberties Union sued in 1996 to block the California ban from taking effect, but the U.S. 9th Circuit Court of Appeals rejected the challenge, and the Supreme Court refused to hear the case. 

Now, in the Michigan case, Rosenbaum gets a chance to make a constitutional argument against state bans on affirmative action that would apply in California as well. He does not contend that race-based policies are required. Instead, he relies on what lawyers call the "political restructuring doctrine." Under it, Rosenbaum argues, Michigan unfairly "rigged" the political process by taking away from university officials the power to set admissions policy and instead writing it into the state constitution. 

By adopting the state ban, the voters — most of whom were white — deprived minority students of a right to press state officials to adopt affirmative action policies. This is "changing the political process along racial lines to prevent the state from taking constitutionally permissible race-conscious action," he said. 

A Michigan-based group called the Coalition to Defend Affirmative Action goes further and describes the state's policy as a "new Jim Crow" system akin to the "separate but equal" doctrine that the high court established in Plessy vs. Ferguson in 1896.

It is not a good sign that Justice Elena Kagan has recused herself from considering the case so that there will only be 8 voting members participating in the decision. However if by some miracle there is a 4-4 split, the lower court's 6th Circuit en banc 8-7 decision that struck down the ballot measure would go into effect.

GetEqual: History is Watching The Supreme Court

This is a pretty compelling video from the direct action group GetEqual, basically warning the individual Justices of the United States Supreme Court that they might not want to get on the wrong side of history with their rulings in the Proposition 8 and DOMA cases. GetEqual is calling for nothing short of full federal equality under the law for LGBT citizens, something the Court is unwilling to do in the cases, but substantial progress, such as marriage equality in an additional 9 states and heightened scrutiny paid to laws that discriminate on the basis of sexual orientation  or gender identity are not unlikely results of decisions in Hollingsworth v. Perry and United States v. Windsor.

I'm pretty sure the voice-over is done by my friend Ben Patrick Johnson.

Hat/tip to Joe.My.God

Analyzing This SCOTUS Term To Predict The Next

In today's New York Times reporter Adam Liptak analyzes the just-completed 2011-12 term of the United States Supreme Court and unearths some interesting (and surprising) facts. The Court heard oral arguments in 65 cases and summarily decided 10 other cases without oral argument. That's 75 decisions in which certioari was granted despite getting literally thousands of appeals from all the lower courts in the land.

Chief Justice John Roberts was only 1 percentage point behind Anthony Kennedy, who is widely viewed as the fulcrum around which the nation's highest court pivots around, in the percentage of cases in which they were in the majority (92% to 93%). This number is a widely watched measure as a signifier for the most "powerful" or influential member of the Court.

The court decided 15 cases by 5-to-4 votes, roughly in line with earlier terms. It was also not unusual that two-thirds of those decisions divided along ideological lines, with Justice Kennedy joining either the court’s four more liberal members (Justices Kagan, Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor) or its four more conservative ones (Chief Justice Roberts and Justices Alito, Scalia and Clarence Thomas). 

What was striking this year was that Justice Kennedy, a moderate conservative, swung right and left an equal number of times. Since 2000, there have been only two terms in which Justice Kennedy did not vote with the conservatives at least 60 percent of the time in such ideologically divided cases.

Is Kennedy evolving to the left? I guess I'm pretty happy with a 10-point shift towards liberal results instead of his usual 60-40 split between conservative and liberal positions. Maybe it's because he seems to be getting closer to Elena Kagan, since the two voted similarly 83% of the time this term. There are only two pairs of justices who voted similarly more than 90% of the time  (you guessed it!) Antonin Scalia and Clarence Thomas with the other (somewhat surprising) pair being George W. Bush appointees Roberts and  Samuel Alito. I guess "Scalito" is not living up to his reputation to become "a little Scalia" on the Court.
And that's a good thing. As his absolutely unacceptable fit of pique in the Arizona immigration ruling aptly demonstrated, even one Scalia on the Supreme Court is one too many!

You should really read Liptak's entire piece for yourself. There are some big gay rights cases coming up in the 2012-13 term, most likely involving the so-called Defense of Marriage Act (DOMA) and another determining the constitutionality of California's attempt to withdraw marriage rights from same-sex couples by allowing voters to amend the state constitution after California's Supreme Court had ruled such a right exists (2008's Proposition 8). These cases are known as Gill and Perry, respectively. We'll know on the first Monday of October whether the Court will indeed accept these cases for final review (and issue a ruling by this time next year). There are also some very high-stakes cases coming in the new term dealing with race. The Court has already agreed to hear oral arguments in Fisher v. Texas which it could use to completely strike down race-based affirmative action in higher education. In addition, there are several voting rights cases at the federal appellate circuit level, particularly Shelby County, Alabama v. Holder, which will almost certainly reach the Court in the 2012-13 term and could be used to strike down Section 5 of the Voting Rights Act of 1965. It's this provision of federal civil rights legislation which has been instrumental in putting a check on Republican politicians' attempt to suppress the voting rights of Black and Latino voters in states like Florida, Pennsylvania, Texas, Wisconsin and others through enactment of "voter identification" laws.

In the meantime it is useful to analyze last year's term to see if any ideological movement can be discerned which can help predict how the Court will rule in Gill and Perry, though as the ruling upholding the health care reform law demonstrated, accurately predicting how the Court will rule in any particular case is almost impossible!

U.S. Supreme Court Upholds Health Care Law!

The United States Supreme Court has apparently upheld the Patient Protection and Affordable Care Act, also known as ObamaCare or health care reform law! Chief Justice John Roberts voted with Justices Sotomayor, Ginsburg, Breyer and Kagan to uphold the individual mandate under the taxing power of Congress. Justices Kennedy, Thomas and Alito joined Justice Scalia's relatively polite dissent.

Sotomayor, Ginsburg and Kagan: 1/3 of the Highest Court

Justices Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan

  
This picture just make my heart sing. I can't wait until the day where the United States Supreme Court actually has a majority of women on it!

Celebrity Friday: Barack Obama

Wednesday was Barack Obama's 49th birthday. The next day, his second Supreme Court Justice was confirmed.

Kagan Confirmed To SCOTUS; It's Now 1/3 Female

By a vote of 63 to 37, the United States Senate confirmed President Barack Obama's second Supreme Court nominee, Elena Kagan, 50, to the country's highest court. That body will have three women serving simultaneously, the most ever when Kagan joins Ruth Bader Ginsburg, 77, and Sonia Sotomayor, 56, as the 112th Justice of the United States Supreme Court.

Celebrity Friday (Extra): Pamela Karlan

MadProfessah and Law Professah Pam Karlan

Today after the excellent panel at Netroots Nation 2010 in Las Vegas entitled "Liberal Perspectives on the Kagan Supreme Court Nomination" which featured Dahlia Lithwick, Nan Aron, Keith Kamisugi, Joan McCarter and Pamela Karlan. MadProfessah took a picture with one of my idols, Stanford Law Professor (and former Dean) Pamela Karlan, who has been on progressives' wet dream short list for the United States Supreme Court.

Karlan explicitly mentioned the Goodwin Liu nomination to the 9th Circuit Court of Appeals (which we have been following here at this blog), and said that progressives should pay careful attention as to whether the UC Berkeley Law Professor gets approved by the Senate. Republican Minority Leader Mitch McConnell has said that he is putting a hold on all appellate-level federal judicial nominees before the mid-term election, so things do not look good. To support the nomination of a principled progressive to the 9th circuit, click here and here.

Take a look at the picture. Notice anything? Yes, we co-ordinated our colors. It's not pink, it's fuchsia! I think she wears the pearls better than I do, yes?

SCOTUS Rules Against Christian Legal Society

In the second most important case of the 2009-2010 Supreme Court term for LGBT people (last Thursday's Doe v. Reed 8-1 ruling that ballot proposition signers have no implicit right to anonymity was probably the most important) the court has ruled 5-4 in favor of the University of California Hastings Law School and against the Christian Legal Society to preserve the principle that a public university's discrimination policy that includes sexual orientation, gender identity and religion can compel any student group that wants official recognition and funding to abide by that nondiscrimination policy.

The Chronicle of Higher Education wrote:

The Supreme Court's decision, by Justice Ruth Bader Ginsburg, found that the law school's policy was "a reasonable, viewpoint-neutral condition on access" that did not raise First Amendment issues in the way the Christian Legal Society argued.

The opinion explicitly rejects the argument of the Christian Legal Society that a public university has no business limiting its ability to be recognized and to apply its own rules to membership. "CLS’s analytical error lies in focusing on the benefits it must forgo while ignoring the interests of those it seeks to fence out: Exclusion, after all, has two sides," the decision says. "Hastings, caught in the crossfire between a group’s desire to exclude and students’ demand for equal access, may reasonably draw a line in the sand permitting all organizations to express what they wish but no groupto discriminate in membership."

A dissent, by Justice Samuel Alito, blasted the decision, saying that it set principle of "no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning."

Many public colleges and universities have anti-bias policies similar to those of Hastings, so a ruling for the Christian Legal Society would have forced changes at many institutions. The issue has been particularly intense at public law schools (where the Christian Legal Society has sought recognition) and at undergraduate institutions with Greek systems (when Christian fraternities have sought recognition). Some public colleges and universities – faced with legal threats by supporters of the Christian Legal Society – have changed their policies to exempt religious groups, and those institutions could conceivably now reconsider.

This case has been closely watched by law professor friends of mine like Nan Hunter of Georgetown Law School and Art Leonard of New York Law School.

Human Rights Campaign issued a statement:

“Today, the Court upheld an important principle for all Americans, that government should not be forced to subsidize discrimination,” said HRC President Joe Solmonese. “UC Hastings and schools like it all over the country have worked hard to create welcoming spaces for all students, including those who are lesbian, gay, bisexual and transgender. Today’s decision bolsters those efforts, while recognizing that Christian Legal Society, and groups like it, are free exclude whomever they want – without the financial support of their fellow students or taxpayers.”

Amazingly, Justice Ginsburg, who wrote the majority opinion (joined by Stevens, Kennedy, Sotomayor and Breyer), read parts of her opinion before the Court aloud, the day after her husband of 56 years(!) died. Thank you Justice Ginsburg for your service to our country. May you enjoy serving on a supreme court (for at least one year) that is one-third female!

UPDATED 06/28/2010 11:38AM PDT

MadProfessah friend and openly gay USC Law Professor David Cruz weighs in with his thoughts on CLS v. Martinez, and Lambda Legal releases a statement:

"We're extremely pleased the Court has found that discrimination is discrimination, however you try to package it," said Jon Davidson, Legal Director of Lambda Legal. "CLS was attempting to draw a distinction between status and conduct. But when an organization has a membership requirement that one must believe conduct central to one's identity is immoral, that's the same thing as excluding people for who they are. It's wrong of CLS to expect students to fund a group that wouldn't have them as a member. The Court wisely rejected CLS's attempt to obtain what the Court recognized as 'preferential, not equal treatment' under the school's rules applicable to all other recognized clubs." Registration as a student organization at Hastings gives groups the right to use Hastings' name and logo, access to a university email address, limited use of facilities, and modest university funds for travel and other expenses. CLS sued in U.S. District Court in San Francisco, arguing that, by not allowing it to become a supported student group, Hastings had violated CLS's rights of free speech, association and religious freedom under the U.S. Constitution. The group maintained it did not bar membership to gays, but rather to those who engaged in homosexual conduct. The District Court rejected these claims and found in Hastings' favor, as did the U.S. 9th Circuit Court of Appeals last year.

The Task Force's Rea Carey said:

“The Supreme Court ruled correctly in rejecting the challenge from the Christian Legal Society, which sought school funding and recognition despite being in clear violation of the college’s nondiscrimination policy. The court rightly found that the First Amendment rights of association, free speech and free exercise were not violated by Hastings’ decision. It simply said the college did not have to fund a group that violated the school policy requiring all recognized student groups to be open to every student. Schools all across the country are working to create welcoming environments for all students. This ruling supports that important effort. No school group or organization should be given public money to discriminate against other students.”

Celebrity Friday: Elana Kagan

Elena Kagan, President Obama's nominee to the United States Supreme Court to replace retiring John Paul Stevens is my choice for today's Celebrity Friday.

Kagan is a 50-year-old, never-married New Yorker who attended Princeton University, Harvard Law School and clerked for Justice Thurgood Marshall. She was the first female Dean of Harvard Law School from 2003-2009 and became the first female Solicitor General of the United States last year.

Obama Nominates Elena Kagan To SCOTUS

Kagan is only 50-years-old and would become the 4th woman ever on the nation's highest court, with 3 serving simultaneously for the first time.

I think she's a lesbian, and so do other people. Whether this will prevent her from being on the Court is anyone's guess. Regardless of whether she is a lesbian or not, having another single woman (Sonia Sotomayor was briefly married and now is a permanent divorcee) on the nation's highest court will do wonders for gender equity in this country.

Obama's List For SCOTUS Has 10 Names On It

The New York Times reports that although the top 3 favorites have not changed (Solicitor General Elena Kagan, 5th Circuit Court of Appeals Judge Diane Wood and D.C. Circuit Court of Appeals Judge Merrick Garland) President Obama is interviewing up to 10 candidates for the upcoming vacancy on the Supreme Court due to Justice John Paul Stevens already-announced retirement.

The other seven on the (not-so short) list are:

Sidney R. Thomas, 9th Circuit Court of Appeals

Ann Claire Williams, 7th Circuit Court of Appeals

Gov. Jennifer M. Granholm of Michigan;

former Chief Justice Leah Ward Sears of the Georgia Supreme Court;

Martha Minow, dean of Harvard Law School;

Justice Carlos R. Moreno of the California Supreme Court;

Homeland Security Secretary Janet Napolitano.

I'm curious as to why liberal judicial rock stars Pamela Karlan and Kathleen Sullivan are not being publicly considered. Could it be because they are openly lesbian? It is heartening to see that Justice Carlos Moreno is still under consideration, however.

No (Out) Lesbians On Obama's New SCOTUS List

The names of the six people on Barack Obama's short list of potential nominees to the United States Supreme Court have been leaked and the list apparently no longer contains any known lesbians.

They are:

Diane Wood of the 7th Circuit
Solicitor General Elena Kagan
Sonia Sotomayor of the 2nd Circuit
Michigan Gov. Jennifer Granholm
Homeland Security Secretary Janet Napolitano
Merrick Garland of the DC Circuit Court of Appeals

This list is very different from previous lists. The only male on the list is Garland, who is a 56-year-old white male. Change we can believe in? Hell no! Any of the others are acceptable.

However, many others will be upset that out lesbians Kathleen Sullivan and Pamela Karlan (both former Deans of Stanford Law School) are no longer on the list. However, Janet"Quacks Like A Duck" Napolitano is aparently still on the short list of 6 people who are being vetted by the White House and filling out extensive surveys.

Latina (9th Circuit Appellate Judge) Kim Wardlaw or African American (and Rod 2.0 favorite) Georgia Chief Justice Leah Ward Sears have also seemed to have dropped off.

I still have my money on Sonia Sotomayor. I think another woman on the court is essential, and having a Black man nominate a Latino person would be a great historic first.