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On June 25, 2013, the Supreme Court killed the core provision of the Voting Rights Act. Four years later, it may be coming back from the dead.
Before Shelby County v. Holder, the 2013 case, the 1965 Voting Rights Act barred nine states with a history of discrimination against minority voters, and portions of six others, from passing new voting laws without federal approval. The court’s 5-4 decision, written by Chief Justice John Roberts, found that the formula for determining which jurisdictions needed approval—or “preclearance”—was outdated and therefore unconstitutional.
“Coverage today is based on decades-old data and eradicated practices,” Roberts wrote, and “‘current burdens’ must be justified by ‘current needs.'” In other words, states couldn’t be subject to preclearance based on the pervasive discrimination of the Jim Crow era, which Roberts wrote was now firmly in the past. Implicit in that ruling was the idea that states could be brought back under preclearance if they showed new evidence of discrimination. The law contains a provision specifically for that purpose, allowing courts to place jurisdictions under preclearance if they demonstrate intentional discrimination.
Freed by the court’s ruling from oversight for the first time in decades, many of the formerly constrained state and local governments quickly began imposing new restrictions on voting. But by passing measures that curtail voting by minorities, these jurisdictions are essentially calling Roberts’ bluff—and could force the Supreme Court to consider restoring preclearance.
Texas is the likeliest setting for the return of preclearance. In the last two months, federal courts have three times ruled that the state intentionally discriminated against minority voters. Its 2011 voter ID law and two redistricting maps it drew that year—for the state House and for Congress—were intended to limit the voting power of minorities, the courts found. Plaintiffs in the cases are asking the courts to place Texas back under preclearance. One or more of the cases could reach the Supreme Court as early as its next term. If so, the Roberts Court will have to decide what to do with states that demonstrate that racial discrimination in voting laws is not just a thing of the past.
“Shelby County said that any preclearance had to be based on current evidence,” says Rick Hasen, an election law expert at the University of California, Irvine School of Law. “And these trials are based on current evidence, not based on something that happened in the 1960s. And so one way of reading this is that the courts are being faithful to what the Supreme Court said in Shelby County, which is that in order to have the extraordinary remedy of preclearance, you need to show that there is a current problem with intentional race discrimination. That’s exactly what’s at stake in these cases.”
In 2010, a conservative backlash to President Barack Obama put Republicans in charge of legislatures and governorships across the country. They quickly passed new voter ID requirements, restrictions on early voting and same-day registration, and other measures that have been found to reduce voting among minorities, the poor, young people, and the elderly. According to the Brennan Center for Justice, by the time of the 2012 elections, 19 states had passed 25 restrictive voting laws.
Fourteen of those laws were blocked by the courts or the Justice Department under the Voting Rights Act’s preclearance rule, and the torrent of voting restrictions began to slow. Shelby changed that. It set in motion a new wave of voter suppression laws across the country. Weeks after the court’s ruling, for example, North Carolina passed a voter suppression bill that the 4th Circuit Court of Appeals, in striking it down, called “the most restrictive voting law North Carolina has seen since the era of Jim Crow,” targeting “African Americans with almost surgical precision.”
No state moved more quickly than Texas to implement a wish list of election reforms that had been blocked under preclearance. Hours after the court’s decision, the state’s attorney general, Gregg Abbott, announced, “With today’s decision, the state’s voter ID law will take effect immediately.” The next day, Gov. Rick Perry signed into law maps for congressional and state Legislature districts that were based on the ones that had been struck down by a federal court under preclearance in 2012 as deliberately discriminatory against minority voters.
Those moves have not fared well in the courts. In April, a federal judge in Corpus Christi ruled that the voter ID law was passed with discriminatory intent. In the past two months, a federal court in San Antonio found both the congressional and the statehouse maps from 2011 intentionally discriminatory. In July, a federal court will determine whether the maps Texas adopted after Shelby are also discriminatory; that case could result in court-drawn maps for the 2018 elections. The string of rulings might lead the courts to reimpose preclearance on Texas. After all, preclearance was intended to target repeat offenders so that the courts wouldn’t be left playing whack-a-mole to strike down discriminatory measures every time they emerged.
“You see the consequence of not having preclearance,” says Mark Gaber, an attorney on the plaintiffs’ legal team in the redistricting cases. “It’s 2017 and we’re still having to litigate about something that happened in 2011.” He adds, “In that period of time, we’ve now gone through three election cycles under maps that quite clearly are—the court’s going to find to be discriminatory.”
Any court that finds intentional discrimination could put Texas back under preclearance for up to 10 years. The courts can decide what types of election laws, if not all of them, would be subject to federal approval.
Wendy Weiser of the Brennan Center, who is part of the plaintiffs’ litigation team in the Texas voter ID case, says there’s a “reasonable chance” that one or more of the Texas cases will result in Texas being placed under preclearance. “The thing that persuades me that this is more likely than not is…the existence of multiple findings of discrimination in the state during this period,” she says. “So it really feels quite widespread.” Hasen concurs that there’s “a fair chance” that at least one of the Texas cases will result in preclearance. Texas would almost certainly appeal a preclearance order, putting the ultimate decision before the Supreme Court.
Texas is not the only place facing the potential return of preclearance. In the days and months after Shelby, Alabama and Mississippi enacted voter ID laws that had previously been held up by preclearance. North Carolina has stood out for the sheer number of voting bills Republicans have passed to preserve their power, including a redistricting map currently before the Supreme Court and a voter ID bill on which it could also rule. At least two cities have already been placed under preclearance in the aftermath of Shelby: Evergreen, Alabama, for gerrymandering its city council districts to produce a majority-white council in a city that is 62 percent African American, and Pasadena, Texas, which also restructured its city council to reduce the power of Hispanic voters. Pasadena is appealing that decision. But if a court places Texas under preclearance, it would mark the return on a much bigger level of a policy thought to be all but dead.
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The Supreme Court has a “disturbing trend” of siding with officers over their alleged victims in cases involving the use of force by police. That’s according to a stinging dissent issued on Monday by Justice Sonia Sotomayor, after the full court voted to let stand the dismissal of a lawsuit against a Houston cop who shot a man in the back during a traffic stop. The court, Sotomayor wrote, has reliably reversed lower-court rulings that favored the plaintiff in such cases, “but we rarely intervene where courts wrongly afford officers the benefit” of the doubt. Justice Ruth Bader-Ginsburg joined Sotomayor’s dissent.
One night in October 2010, Ricardo Salazar-Limon and his friends were driving on a highway outside of Houston when Houston Police Officer Chris Thompson pulled him over. After running the driver’s license and registration and finding nothing amiss, Thomson asked Salazar-Limon to step out of his truck—apparently to conduct a Breathalyzer test. Thompson then tried to handcuff Salazar-Limon, but the driver resisted and began walking back to his truck with his back to Thompson. The officer then drew his gun and ordered him to stop. Salazar-Limon says Thompson shot him within seconds of that order. Thompson claims he fired only after Salazar-Limon reached for his waistband—as if for a weapon—and turned toward him. No weapon was found.
Salazar-Limon sustained crippling injuries. In 2011, he sued Thompson and the Houston police for violating his civil rights. But a federal judge dismissed the suit, ruling that Thompson had qualified immunity because he’d shot Salazar-Limon in the course of his lawful duties. Salazar-Limon never explicitly denied reaching for his waistband during his deposition, nor, the judge wrote, did he offer evidence that he hadn’t—so the only conclusion a reasonable jury could reach was that he had. Thompson thus could have felt threatened and shot him because of it. A federal appeals court affirmed the ruling.
Salazar-Limon appealed to the Supreme Court, which on Monday decided not to hear the case. That was the wrong move, argued Sotomayor. A dismissal should only be granted, she wrote, when the facts of an incident are not in dispute. Thompson claimed the shooting was provoked. Salazar-Limon said it was not. The lower-court judge gave unfair privilege to the officer’s account, Sotomayor said. It was a jury’s job—not a district court judge’s—to determine whose story was more plausible. A juror, she wrote, could easily ask why Salazar-Limon would have reached for his waistband if he didn’t have a weapon. (In a footnote, she cited “the increasing frequency of incidents in which unarmed men allegedly reach for empty waistbands when facing law enforcement officers.”)
Writing for the majority, Justice Samuel Alito said the court rarely reviews cases “where the thrust of the claim is that a lower court simply erred in applying a settled rule of law to the facts of a particular case”—as opposed to cases in which the court is asked to interpret the law itself. But Sotomayor cited five recent cases in which the court intervened after a lower court ordered an offer to stand trial based on the facts of the case. Improperly dismissing lawsuits against officers who may have acted unlawfully “imposes no less harm” than trying officers who haven’t broken the law, she wrote.
The high court’s decision could encourage federal judges to dismiss civil lawsuits against police officers, says Joanna Schwartz, a professor at the University of California-Los Angeles who studies litigation against police. The ruling could also discourage attorneys from bringing such lawsuits, further limiting the options for redress against police abuses—as prosecutors rarely bring criminal cases and the Department of Justice under Attorney General Jeff Sessions may have little interest in doing so. “Lawyers are not making very much money off these cases. They bring these cases because they believe in them,” Schwartz told me. “As it becomes increasingly more difficult to win anything, it’s going to be even harder for lawyers to make the decision to represent these plaintiffs.”
Sotomayor’s dissent on Monday was her second recent one related to police tactics. Last summer, she cited author James Baldwin and The Atlantic writer Ta-Nehisi Coates while slamming a Supreme Court ruling involving what she deemed an illegal search and seizure: “The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights,” she wrote. “This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong.”
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While chastising Democrats for threatening to filibuster Neil Gorsuch’s Supreme Court nomination, White House Press Secretary Sean Spicer on Thursday delivered one of his most egregious falsehoods yet. Republicans, he insisted, have historically been cooperative when it comes to giving up-or-down votes to Democratic presidents’ court appointments. Spicer specifically mentioned former President Barack Obama in making this assertion.
“Republicans in the past have allowed Democrat presidents to have their SCOTUS nominees voted on up or down,” Spicer said. “And for the most part, when you go back through President Obama or President Clinton…Republicans have joined with Democrats to allow people who are qualified to go onto the court.”
“It was Obama’s nominees that got through—all with Republican support,” he added. “It’s difficult to understand why, when you’ve got someone as eminently qualified as Gursuch, that this the stake that they want to drive. And I think it further sets a partisan divide in our country when we can’t allow people who are qualified, and universally so, to get on the bench.”
There’s one glaring problem with Spicer’s remarks: Merrick Garland. In 2016, Obama selected Garland to replace the Supreme Court Justice Antonin Scalia, who died last February. Arguing the nomination to fill the vacant seat should be left to the next president, Republicans staged an unprecedented blockade to the nomination process, refusing to even hold hearings on Garland’s nomination. That gamble paid off, and here we are with Trump and Gorsuch—and Spicer’s bald-faced lie.
Watch Spicer’s remarks, which start around the 1 hour and 49 minute mark:
One of the main jobs of Republicans on the Senate Judiciary Committee this week has been to deflect attacks on Supreme Court nominee Neil Gorsuch by Democrats, who are trying to paint him as a tool of corporations and a foe of the little guy. To that end, Republicans have tried both to humanize the federal judge and to highlight the parts of his background that might make him more relatable to the average American. They’ve got him talking about the Denver rodeo and mutton bustin’ and quoting David Foster Wallace.
But those humanizing efforts are falling a bit flat. That’s largely because when it comes to demonstrating all that he has in common with the regular folks who might come before the court, Gorsuch is his own worst enemy. A graduate of Georgetown Prep, Columbia University, Harvard Law School, and Oxford, Gorsuch is the son of Ronald Reagan’s Environmental Protection Agency chief and spent most of his formative years inside the Beltway, including a stint as a clerk on the DC Circuit Court of Appeals. His nomination to the 10th Circuit Court was championed by the secretive billionaire Phillip Anschutz, his former client, and Gorsuch co-owns a Colorado mountain cabin with two of Anschutz’s top deputies.
On Tuesday night, Sen. Jeff Flake (R-Ariz.) asked Gorsuch about how he “liked to get his hands dirty.” If Flake was hoping to reveal a nominee who subscribes to Family Handyman and loves power tools, he was disappointed. The judge responded by reminding the committee how much he loves to ski. (Gorsuch was on the slopes when he learned about the death of Justice Antonin Scalia, whose seat he’s been nominated to fill.) “I always say the family that skis together stays together,” Gorsuch had said earlier in the hearing. Gorsuch told Flake that his daughters were “ferocious double-black-diamond skiers,” and at that very moment, one of them was doing some backcountry skiing near Telluride.
The exchange was unlikely to help most Americans relate to the judge. Today, skiing is largely a sport of the wealthy. A one-day lift ticket at Winter Park, the Colorado resort where Gorsuch said he liked to go, costs $144. A single day of skiing for a family of four could cost nearly $600, not including all the gear and lunch at the lodge. And teaching kids to ski so they can become “ferocious double-black-diamond skiers” is an enormous investment. A single day in the Winter Park ski school will set you back $189 for one child, not including equipment rentals. For most of the country, even with discounts for locals, those costs put skiing largely out of reach.
Earlier in the hearing, Sen. Mike Lee (R-Utah) had asked Gorsuch about his experience in politics. “Are you a lawmaker?” Lee asked. “Have you ever held a position as a state legislator? Have you ever held a position as a member of Congress?” Gorsuch responded with a chuckle, “I’ve served on my kid’s school board.”
The following day, Flake asked Gorsuch about his civic involvement outside of the court, mentioning his school board service. “Boy, that I found taxing, and loved every minute of it,” Gorsuch said. Flake nodded appreciatively, telling Gorsuch, “That typifies the West. People get along. They have to. On a school board there’s no passing the buck there. You’ve gotta make decisions. Local government is like that.”
What Flake seemed to have missed, though, is that Gorsuch never served on a public school board. He was on the board of the Boulder Country Day School, a small private school with tuition that runs from $15,000 to $20,000 a year. That’s a big difference from serving on a public, elected school board just about anywhere in the country.
In fact, Gorsuch is among the most privileged individuals to be nominated to the Supreme Court in recent memory. Justice Clarence Thomas grew up poor in Pinpoint, Georgia, speaking Gullah. His idea of a good time is camping in a Walmart parking lot in his RV en route to a NASCAR race. Sonia Sotomayor hails from a Puerto Rican family and grew up with a single mom in a South Bronx tenement. Samuel Alito is a Jersey boy, the son of Italian immigrant teachers, who graduated from a public high school. At first glance, Gorsuch’s background somewhat resembles that of Chief Justice John Roberts Jr., who likewise comes from a tony private-school background—except that Roberts worked summers in a steel mill to pay his way through Harvard.
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That thin orange line that’s zero across the entire bottom of the chart is the number of people who named Stephen Breyer. Poor guy. However, it’s still possible that he was the first choice of at least a few people. The survey size was 1,032 people, so anything less than five would get rounded down to zero. Breyer might very well have been named by three or four people.
Anyway, the two big takeaways are (a) the older you are, the more likely you are to know at least one justice, and (b) Ruth Bader Ginsburg kicks ass. Even the chief justice isn’t better known than her. Good job, RBG.
Of course, they’d all have better Q scores if they followed the advice of 76 percent of the public and allowed arguments to be televised.
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The Supreme Court on Monday kicked a historic transgender rights case back to a lower court, after the Trump administration changed the federal government’s position on whether trans students can use bathrooms matching their gender identities.
The highly anticipated case, which had been scheduled for a Supreme Court hearing later this month, centers on a 17-year-old transgender boy named Gavin Grimm who is suing for access to the boys’ bathroom at his school in Virginia. Grimm’s case argues that the school’s decision to block him from that bathroom violates Title IX, a federal civil rights law that prohibits discrimination based on sex in public schools. Had the Supreme Court chosen to hear the case, it would have been the first time the justices had ever considered a question about trans rights.
Grimm, who was born a girl but identifies as a boy, started using the boys’ bathroom at school his sophomore year, after doctors diagnosed him with gender dysphoria and recommended that he be treated as a boy. But when parents at his school complained, his school board intervened, saying he’d either need to go back to the girls’ room or use a private bathroom near the nurse’s office. The school board said it was trying to protect the privacy of other students.
Last May, the Obama administration put out a directive warning that public schools could lose federal funding if they blocked trans kids from using the bathrooms of their choice. The directive said Title IX prohibited discrimination based on gender identity, not just based on sex. But in February, President Donald Trump’s administration changed the federal government’s position, saying that it wasn’t sure how to interpret Title IX and that schools could go back to blocking trans kids from bathrooms. Because the 4th Circuit Court of Appeals had relied heavily on the Obama administration’s interpretation in its decision about Grimm’s case last year, the Supreme Court on Monday ordered the circuit court to reconsider the case. Now it’ll be up to that lower court to decide what Title IX means, and whether the law prohibits discrimination based on gender identity.
Over the past couple of years, the debate over transgender rights and bathrooms has heated up nationally. Only one state, North Carolina, has enacted legislation requiring trans people to use bathrooms matching their birth sex instead of their gender identity. But at least 11 other states have considered similar legislation already this year , and schools across the country have instituted similar policies. In an amicus brief filed last week, parents wrote about how their trans children have been humiliated and stigmatized as a result. Many others also submitted briefs in support of Grimm, including nearly 200 members of Congress, dozens of major corporations, 18 states and over 30 US cities, the NAACP, and the National Parent-Teacher Association (PTA).
The issue isn’t just about bathrooms. “It’s about the right of trans people to exist in public spaces,” Grimm told reporters on a press call on Monday. Without access to bathrooms, he says, it’s hard for trans people to sit through class, run errands, or hold jobs.
The case will not come before the Supreme Court again this term, Grimm’s attorneys say, and possibly not for another few years. “We will not have our day in the high court this term but we will continue to fight in the lower courts,” Chase Strangio, one of his lawyers at the American Civil Liberties Union, wrote. “Today our momentum was sent on a detour,” he added in a tweet, “but nothing can stop it. We will fight. We will win.”
Grimm was sitting in class on Monday morning when text messages started flooding his phone with the Supreme Court’s announcement. He was disappointed but vowed to keep fighting. Whether it takes another year or 10, he says, “I’m in it for the long haul.”
Norma McCorvey, the “Jane Roe” plaintiff in the Roe v. Wade Supreme Court case that legalized abortion in the United States, died Saturday at at an assisted-living facility in Katy, Texas. She was 69.
McCorvey was a complicated symbol for the political fight over abortion rights. Following the high court’s 1973 decision, she became the face of the pro-choice movement. At the time, she represented the struggles faced by ordinary women confronted with unwanted pregnancies. Abortion was illegal in Texas in almost all cases when she learned she was pregnant in 1969. Poor and with a ninth grade education, she didn’t have the means to seek abortion across state lines. The legal battle dragged on for three years; by the time she won, she had long since carried the pregnancy to term. She gave the baby up for adoption.
But in 1995, McCorvey reversed her stance on abortion after discussing the Bible with Pastor Flip Benham, the director of Operation Rescue, an aggressive pro-life group that had moved in next door to the women’s health clinic where McCorvey worked. She soon quit her job at the clinic and was baptized by Benham. She became a spokeswoman for the anti-abortion movement, penning a book about her ideological transformation and traveling the country giving speeches to religious groups.
Like McCorvey’s own views on abortion, popular opinion about a woman’s right to choose has been the subject of much conflict and debate since the landmark 1973 case. And while a strong majority of Americans still agrees with the Roe decision, dismantling the right to an abortion is now an explicit objective for both the new administration and the Republican-led congress.
In the month since President Donald Trump’s inauguration, GOP lawmakers have put forward measures aimed at pulling federal family planning funds from Planned Parenthood and repealing the Affordable Care Act, including its requirement that insurance plans cover contraceptives. They have also introduced bills that would make abortion illegal after 20 weeks of pregnancy and would ban the standard abortion method used by doctors in the second trimester.
A Supreme Court majority that would be open to overturning Roe is becoming increasingly likely, as well. This is something Trump promised repeatedly during the campaign as part of his largely successful effort to win over skeptical evangelical voters. As a candidate, he made four promises to the anti-abortion community: He pledged to nominate anti-abortion justices; defund Planned Parenthood; sign the 20-week abortion ban; and permanently enshrine into law the Hyde Amendment—a 40-year old budget rider that Congress has repeatedly used to bar federal tax dollars from funding most abortions. Assuming that Judge Neil Gorsuch is confirmed this spring, it may only take the departure of one pro-abortion-rights justice to tip the balance on the court against Roe.
During the campaign, the formerly pro-choice Trump brought on Mike Pence to shore up his anti-abortion bonafides. As governor of Indiana, Pence signed some of the country’s strictest abortion restrictions into law, including a measure requiring burial or cremation of aborted fetus remains and a ban on abortions due to fetal anomaly. In a September 2016 speech, Pence told an evangelical conference in Washington, DC, “I want to live to see the day that we put the sanctity of life back at the center of American law, and we send Roe v. Wade to the ash heap of history, where it belongs.”
Last month, Pence became the highest-ranking government official to ever address the annual March for Life in person. “Life is winning again in America,” Pence said at the anti-abortion gathering, pointing to the “historic election of a president who stands for a stronger America, a more prosperous America, and a president who, I proudly say, stands for the right to life.”
Roe has been seen by many as an imperfect decision. Justice Ruth Bader Ginsburg, one of the foremost legal warriors for gender equality, has criticized the decision for changing too much, too quickly. After founding the ACLU’s women’s rights project in the 1970s, Ginsburg focused on fighting sex discrimination with an incremental strategy. She brought several cases to the Supreme Court, building up a body of court victories that together established a sweeping legal and moral understanding of sex discrimination as something that is both illegal and wrong. Roe, she said at a conference in 2014, “established a target” for abortion opponents because it ditched this incremental approach, instead imposing a drastic change on states across the country. She suggested that if the high court had moved a little more slowly, today the idea of reproductive choice wouldn’t be so controversial. “A movement against access to abortion for women grew up, flourished, around a single target,” Ginsburg said.
After her victory as Roe’s main plaintiff, McCorvey joined the movement that sprung up to oppose Roe. Her death comes at a time when that movement, with help from the Trump White House, could achieve many of its long-held goals.
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President Trump lost his appeal today to keep his immigration ban in place:
A federal appeals court on Thursday refused to reinstate President Trump’s targeted travel ban, delivering the latest and most stinging judicial rebuke to his effort to make good on a campaign promise and tighten the standards for entry into the United States.
….The decision is likely to be quickly appealed to the United States Supreme Court. That court remains short-handed and could deadlock. A 4-to-4 tie in the Supreme Court would leave the appeals court’s ruling in place.
It’s worth pointing out that this isn’t a ruling on whether Trump’s immigration order is legal. It’s not even a ruling on whether it should be blocked pending the result of other lawsuits. It’s a ruling on an emergency stay of the temporary restraining order issued last week by a district court in Seattle. For now, the TRO remains in place unless the Supreme Court overturns the cicuit court and grants the emergency stay. Later we’ll get a full hearing on the TRO, and following that we’ll get trials on the various lawsuits challenging the legality of the immigration order.
UPDATE: This has been rewritten to more accurately explain what happened here.
During the presidential campaign, President-elect Donald Trump pledged to nominate pro-life Supreme Court justices who would overturn Roe v. Wade “automatically,” and he released a list of 21 candidates he would consider for a spot on the high court. The conservative legal organization the Federalist Society, as well as the Heritage Foundation, an influential right-wing think tank, helped draft the list. But since the election, some pro-life activists have been pushing the Trump team to jettison most of the people on his short list on the grounds that they aren’t sufficiently committed to overturning the landmark 1973 abortion ruling.
In mid-December, Andrew Schlafly, president of the Legal Center for the Defense of Life and son of the late anti-feminist icon Phyllis Schlafly, wrote an open letter to Trump, signed by more than 70 anti-abortion activists, urging him to appoint a Supreme Court justice with a “proven pro-life record.” In a not–so–subtle reminder that pro-life voters may have played a huge role in putting Trump in the White House despite his obvious moral failings, Schlafly wrote:
Exit polls in the election showed that 21% of voters felt that this issue of the Supreme Court was ‘the most important factor’ in determining for whom they voted. Among that group of voters, you defeated your opponent by a landslide of 15%, 56-41%.
“I’m worried that Trump’s advisers will pull a Souter,” Schlafly explains, referring to President George H.W. Bush’s nomination of Justice David Souter. Souter was something of a blank slate when he was nominated, and he proved to be far more liberal than Republicans had believed. When it comes to the Supreme Court, Schlafly and his supporters don’t want to leave anything to chance, which means a nominee who doesn’t just profess pro-life convictions, but has a documented track record of ruling in abortion cases. But Schlafly suspects some of the people advising Trump on a court pick want “a stealth candidate, someone without a record,” who would generate less opposition in a confirmation hearing.
Among those he’s singled out for supposedly pushing such a candidate is Leonard Leo, executive vice president of the Federalist Society—which Schlafly insists is “not a pro-life organization,” despite Leo’s stated opposition to abortion. (Leo did not respond to a request for comment.)
Among those whom Schlafly has targeted on Trump’s short list are some pretty stalwart conservative federal judges, including Diane Sykes, a 7th Circuit judge who reportedly ranks as one of Trump’s top two choices. Schlafly believes Sykes is not pro-life because as an Indiana state court judge she sentenced two anti-abortion protesters to 60 days in jail for a clinic protest. Later, on the federal bench, she also helped strike down a law defunding Planned Parenthood—another black mark against her in his book. Another potential nominee, 10th Circuit Judge Neil Gorsuch, who was appointed to the federal bench by George W. Bush, won’t be pro-life on the bench, according to Schlafly, because he doesn’t invoke the term “unborn child” in his decisions or public comments.
Candidates who meet Schlafly’s litmus test are few and far between, but there are two women from the highly conservative 5th Circuit Court of Appeals in Texas, Judges Edith Jones and Jennifer Elrod, who make the cut. Jones is a conservative poster gal who has been floated as a candidate for a GOP Supreme Court slot so many times that she’s been dubbed the “Susan Lucci” of Supreme Court nominations, after the soap opera star who was nominated 18 times for an Emmy before finally winning. As Tim Noah explained in Slate in 2005, “Presidents have been not choosing Jones since 1987,” back when Ronald Reagan needed a Supreme Court nominee to replace Robert Bork, whom the Senate rejected as too much of an extremist.
Today, Jones’ far-right views would make the late Bork look like a bleeding-heart liberal. In 2006, Jones made the Texas Observer’s list of worst judges in the state for rulings such as the one that upheld the execution of a man whose lawyer slept through his trial. Her performance in a sexual-harassment case was also noteworthy. “After hearing testimony that a woman had endured, among other things, a co-worker pinching her breast at work, Jones retorted, ‘Well, he apologized,'” wrote the Observer.
In 2014, lawyers and law students filed a judicial misconduct complaint against Jones over a speech she gave at a 2013 Federalist Society event. Jones allegedly said the death penalty provided a “positive service” to defendants because they are “likely to make peace with God only in the moment before imminent execution.” She also allegedly said, “African Americans and Hispanics are predisposed to crime” and “prone to commit acts of violence.” (Because there was no recording of Jones’ remarks, the complaint against her was dismissed.)
But for anti-abortion activists, her record is stellar: She was part of a three-judge panel that upheld a 2012 mandatory sonogram law in Texas, forcing doctors to give women seeking an abortion medically unnecessary information designed to persuade them to change their minds. In 2014, she was on a panel of judges considering a challenge to a Texas abortion law that closed 22 abortion clinics in the state. During oral arguments, she told lawyers for the Texas clinics that the 300-mile round trip some women would have to endure to reach a clinic under the new law was no big deal if they drove fast. The road, she said, was flat.
Elrod, who is also on Schlafly’s short list, wrote a circuit opinion in a preliminary phase of the case upholding that controversial law, which was struck down by the US Supreme Court last year in Women’s Whole Health v. Hellerstedt. In her opinion, Elrod gave almost complete deference to the state’s argument that the abortion-closing law was designed to protect women’s health, despite having no evidence to support that claim. She wrote, “In our circuit, we do not balance the wisdom or effectiveness of a law against the burdens the law imposes,” suggesting that the difficulties women might face obtaining an abortion in Texas were not relevant to her deliberations.
Florida Supreme Court Chief Judge Charles Canady is one of Trump’s potential candidates who meets with Schlafly’s approval as well. Canady, as a member of Congress in 1995, coined the term “partial-birth abortion” when he sponsored legislation banning dilation and extraction abortions in which doctors removed an intact fetus after collapsing its skull to minimize health complications in the woman. As a state court judge, he blocked a young woman from getting an abortion without her parents’ consent. His anti-abortion credentials are rock solid.
Schlafly complains that Trump’s advisers, including the Federalist Society’s Leo, are pushing him to tap younger judges while ignoring older, more proven judges such as Jones, who is 67, or Canady, 62. He wrote recently, “Mr. Leo’s approach runs afoul of conservative principles, which recognize that the longer someone is in D.C., the more liberal they generally get. That’s apparently true for some think tank executives as well, by the way.”
The anti-abortion movement as a whole has not gotten on board with Schlafly’s campaign, largely because everyone on Trump’s Supreme Court list is very conservative and likely to be hostile to abortion, even if they have not yet ruled on it. The signatories of Schlafly’s letter to Trump are B-listers of the anti-choice movement. Many of them represent state chapters of his late mother’s organization, the Eagle Forum, or the much-diminished Operation Rescue. But the most politically powerful anti-abortion groups such as Americans United for Life, National Right to Life, and the Family Research Council have not weighed in on his picks. Even anti-abortion stalwart Rick Santorum, the former Pennsylvania senator, has shied away, despite being approached by Schlafly for support, saying that Schlafly’s letter “doesn’t reflect my judgment on all of the candidates.”
Ed Whelan, a former Scalia law clerk and attorney in the George W. Bush administration’s Department of Justice, has been one of the most outspoken conservative critics of Schlafly’s abortion purity campaign. He declined to comment for this story, but in his “Bench Notes” column in National Review, Whelan has explicitly defended potential Trump nominees from Schlafly’s attacks. He points out, for instance, that Schlafly’s own mother approved of the judges on Trump’s list before she died. In her last book, The Conservative Case for Trump, she and her co-author wrote, “It is to Trump’s credit that his shortlist is as good as it is.”
And he counters Schlafly’s criticism of the 7th Circuit’s Sykes by noting that while Sykes did rule in a case involving abortion protesters, “she didn’t sentence them for protesting abortion. She sentenced them for cementing their legs to the front of a car parked at the entrance to an abortion clinic and thus shutting down the clinic. What sentence does Schlafly believe Sykes should have imposed?”
But Whelan’s primary opposition to Schlafly’s campaign is that he believes the anti-abortion purists “want judges to indulge pro-life values to misread the law in order to reach pro-life results,” something he argues Scalia would never have approved of. Schlafly dismisses Whelan’s criticism as sour grapes: “Ed Whelan was a strident opponent of Trump himself.”
On Wednesday, during his first press conference since July, Trump said he would announce his Supreme Court choice during the first week or two after the inauguration. It’s unclear whether he’s taking Schlafly’s input under advisement. Neither Trump nor his advisers have responded to Schlafly. But Schlafly notes that his letter was featured on Fox News, and he’s hopeful it’s making an impact. “Nothing else a president does even compares to the significance of this decision,” Schlafly says, noting that its ramifications could last 30 years or more. Yet he thinks when it comes to the potential justices, Trump’s team hasn’t done its homework on the abortion issue, and he’s simply trying to fill in the research gaps. “Everybody knows that’s what’s at stake,” he says. “A very thorough vetting process is in order.”