“The White House is quietly working with Senate Democrats to ensure President Biden has a steady stream of nominees for the federal courts,” Axios reports.
Supreme Court Could Soon End Affirmative Action
Vox looks at a Supreme Court case which could “end all race-conscious admissions programs altogether.”
“The Harvard case is the first major affirmative action suit to reach the Supreme Court since Republicans gained a 6-3 majority on that Court, and it’s the first such case to reach the justices since Anthony Kennedy’s retirement in 2018. Kennedy had unexpectedly cast the key vote to uphold an affirmative action program in Fisher v. University of Texas at Austin in 2016.”
Don’t Forget the State Supreme Courts
Stephen Wolf has a good run-down of the most important state Supreme Court elections and scheduled appointments happening this cycle.
“Progressives have the chance to flip Ohio’s Supreme Court, gain a more solid majority in Montana, and make inroads that could set them up to flip conservative-heavy courts in Georgia, Texas, and Virginia later this decade. Meanwhile, Republicans could take control of Democratic-leaning courts in Illinois, Michigan, Minnesota, and North Carolina.”
Durbin Warns Republicans on Blocking Judges
New York Times: “Offering a warning to Republicans on judges, Mr. Durbin said he would reserve the right to end their ability to block district court nominees through the arcane ‘blue slip’ process — which allows senators to bless or blackball nominees from their home states — if he concluded that they were obstructing nominations without legitimate grounds.”
Justices to Consider Protections for Minority Voters
Washington Post: “The court on Tuesday will review the shield provided by the Voting Rights Act (VRA), first passed in 1965 to forbid laws that result in discrimination based on race.”
“The cases at the Supreme Court involve two voting regulations from Arizona that are in common use across the country. One throws out the ballots of those who vote in the wrong precinct. The other restricts who may collect ballots cast early for delivery to polling places, a practice then-President Donald Trump denounced as ‘ballot harvesting.'”
“But the greater impact will be the test that the increasingly conservative court develops for proving violations of the VRA, as new laws are proposed and state legislatures begin redrawing congressional and legislative districts following the 2020 Census.”
Both Parties Actually Agree on Expanding the Courts
Slate: “The United States judiciary does not have enough judges. This is not a partisan gripe but an objective problem that has overwhelmed federal courts and imposed unconscionable delays on litigants for decades. On Wednesday, the House of Representatives’ subcommittee on courts held a hearing to confront this quandary; remarkably, Democrats and Republicans agreed that Congress has an obligation to expand the federal judiciary by adding new seats to both district and appeals courts.”
“But several Republicans endorsed a scheme that would prevent President Joe Biden from filling these new seats, at least in his first term. Their political maneuvering may not be fatal to the vital project of lower court expansion, but it could doom Democrats’ effort to swiftly restore a fully functioning judiciary.”
Clarence Thomas Promotes Trump’s Big Lie About Election
Justice Clarence Thomas issued a startling opinion in which he cast doubt on the legitimacy of the 2020 election by questioning the security of mail voting, Slate reports.
“Thomas drew heavily from a 2012 New York Times article focusing on Florida’s mail voting regime, which focused on a handful of fraudulent schemes involving mail ballots. The justice also pointed to a Republican operative’s criminal attempt to steal an election in North Carolina using mail ballots. In reality, this kind of voter fraud is vanishingly rare, and its few perpetrators have been caught and prosecuted.”
“In a strikingly cynical move, the justice argued that laws curtailing mail voting may be justified without proof of fraud to prevent ‘the appearance of corruption.’ He drew this standard from the campaign finance context, in which the court has upheld limits on political spending to bolster public confidence that lawmakers are not corrupt.”
USA Today: Dissent by Clarence Thomas draws fire for revisiting baseless Trump election fraud claims.
Supreme Court Rejects Appeal by Pennsylvania GOP
“The U.S. Supreme Court won’t hear an appeal of Pennsylvania’s mail-ballot deadline extension in the 2020 election, declining to take up a Republican attempt to severely limit courts’ ability to oversee how elections are run,” the Philadelphia Inquirer reports.
“It also denies a Republican attempt to significantly shift the election law landscape by essentially shutting out courts from making changes to election procedures. The U.S. Constitution gives state legislatures the power to decide how elections are run, but that has in the past been understood to mean the normal legislative process, including sign-off from governors and judicial review of the law.”
Rick Hasen has more analysis of the decision.
Supreme Court Allows Release of Trump Tax Returns
“The Supreme Court cleared the way for a New York prosecutor to obtain former President Donald Trump’s tax returns, dealing a massive loss to Trump who has fiercely fought to shield his financial papers from prosecutors,” CNN reports.
“The documents will be subject to grand jury secrecy rules that restrict their public release.”
CNBC: “The decision, the second time the nation’s highest court has weighed in on the matter, was announced in an order with no noted dissents. The news further imperils the ex-president, who is facing investigations in New York and elsewhere.”
Democrats Maneuvering to Shape Biden’s First Court Pick
New York Times: “There may not be a vacancy on the high court at the moment, but Mr. Clyburn and other lawmakers are already maneuvering to champion candidates and a new approach for a nomination that might come as soon as this summer, when some Democrats hope Justice Stephen Breyer, who is 82, will retire. With Democrats holding the narrowest of Senate majorities, and Ruth Bader Ginsburg’s death still painfully fresh in their minds, these party leaders want to shape Mr. Biden’s appointment, including moving the party away from the usual Ivy League résumés.”
“The early jockeying illustrates how eager Democratic officials are to leave their mark on Mr. Biden’s effort to elevate historically underrepresented contenders for a landmark Supreme Court nomination.”
Biden Gets Chance to Leave Mark on Judiciary
“The opportunity for President Biden to make his own stamp on the federal judiciary and chip away at his predecessor’s impact on the courts has quickly come knocking at the White House’s door, with a slew of federal judges announcing their plans to step down over the past several weeks,” CBS News reports.
“Already, 39 judges on the federal circuit courts and trial courts have announced plans to vacate their seats in the wake of the inauguration either by retiring or taking ‘senior status,’ a form of semi-retirement in which judges have a reduced caseload.”
Supreme Court Sitting on Trump’s Tax Returns
CNN: “For nearly four months, the court has refused to act on emergency filings related to a Manhattan grand jury’s subpoena of Trump tax returns, effectively thwarting part of the investigation.”
“The Supreme Court’s inaction marks an extraordinary departure from its usual practice of timely responses when the justices are asked to block a lower court decision on an emergency basis and has spurred questions about what is happening behind the scenes.”
Biden’s Promise Highlights Lack of Diversity on Courts
USA Today: “Biden repeatedly promised during his presidential campaign to name a Black woman to the nation’s highest court for the first time in history if a seat opens on his watch. But that commitment has drawn attention to a lack of Black women on U.S. appeals courts – the pool from which Supreme Court justices usually are drawn.”
“Four Black women serve as appeals court judges out of 179 judgeships – all of them older than 65… There are 35 Black female federal district court judges, according to the center’s data, just more than 5% of the total number of judges.”
Key Judicial Seat Opens Up for Biden to Fill
U.S. District Judge Emmet Sullivan is taking “senior status” in April, which opens up his seat on the U.S. District Court for President Joe Biden to fill, BuzzFeed News reports.
Ginni Thomas Apologizes to Husband’s Clerks
“Conservative political activist Virginia Thomas told her husband Justice Clarence Thomas’s former law clerks that she was sorry for a rift that developed among them after her election advocacy of President Donald Trump and endorsement of the Jan. 6 rally in D.C. that resulted in violence and death at the Capitol,” the Washington Post reports.
Said Thomas: “I owe you all an apology. I have likely imposed on you my lifetime passions.”
Judges Retire So Biden Can Replace Them
At least five federal judges with lifetime appointments who have announced plans to retire or semi-retire since last Wednesday, the day Donald Trump left the White House, the HuffPost reports.
That’s after eight judges had already announced their plans to step down since Biden was declared the winner of the 2020 presidential election.
Biden to Create Commission on Supreme Court Reform
“The Biden administration is moving forward with the creation of a bipartisan commission to study reforms to the Supreme Court and the federal judiciary,” Politico reports.
“The commission will be housed under the purview of the White House Counsel’s office and filled out with the behind-the-scenes help of the Biden campaign’s lawyer Bob Bauer. Its specific mandate is still being decided. But, in a signal that the commission is indeed moving ahead, some members have already been selected.”
Will Chief Justice Preside Over Impeachment Trial?
Roll Call: “The Constitution states, ‘When the President of the United States is tried the Chief Justice shall preside.’ Roberts presided over Trump’s first impeachment trial a year ago, just the third such trial in history.”
“But what happens when Trump leaves office on Jan. 20 — before the trial starts — and becomes a former president of the United States? Must the chief justice still preside over the trial? Could he choose to do so? Or does [that role] fall to the presiding officer of the Senate, the new vice president, Kamala Harris? Or can the Senate have its president pro tempore, at that time Vermont Democratic Sen. Patrick J. Leahy, preside? … Constitutional and congressional experts have no certain answer.”
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