Tues- 2/12: The civil rights apocalypse is coming. Stop Trump’s nominees!

Quote from SCOTUS dissenting opinion…

Update: It’s already here… 

“Orderly and secure fashion” v. 1st amendment rights: The SCOTUS case involving Domineque Ray, a Muslim death row inmate and his request for an iman at his side during his execution should have been an easy lift. The Alabama Dept. of Corrections’ policy banning all but Christian clergy (what?!) in the execution chamber is blatantly unconstitutional. Alabama knew Ray’s faith since he was first imprisoned. Ray, however, didn’t learn of their exclusionary policy until a date arbitrarily decided to be “too late”. On a 5-4 vote, the Federalist Society members of the court put a state’s interest in keeping a tidy schedule over the 1st amendment rights of a minority prisoner. No matter what your views on capital punishment, or Ray’s guilt, this is a dangerous swipe against religious equality.

Action: Call against these judicial nominees!  

Last Thursday, the Judiciary Committee advanced the nominations of 44 of Trump’s nominees to the main Senate floor. creep through the Judiciary Committee like a slow-growing cancer.  You may think this issue doesn’t concern you because they don’t represent your area. Think indivisible, people! It’s within these horrors that Trump will be looking for his next Kavanaugh. We are all connected! CALL!

Minimal script: I’m calling from [zip code] and I want Sen. [___] to know that she/he has my support to stop, in any way possible, this assembly line of inappropriate judicial nominees and the assault on the blue slip process and time periods for examining nominees.

More script if you want it (or email): All nominees with Federalist Society membership need to be opposed, but please concentrate on stopping the following: Chad Readler, Neomi Rao, Eric Murphy, Allison Rushing, Stephen Clark, Wendy Vitter, Eric Miller, Daniel Collins, Kenneth Lee, and Daniel Bress.

Contact
Senator Feinstein: email, DC (202) 224-3841, LA (310) 914-7300, SF (415) 393-0707, SD (619) 231-9712, Fresno (559) 485-7430
and Senator Harris: email, DC (202) 224-3553, LA (213) 894-5000, SAC (916) 448-2787, Fresno (559) 497-5109, SF (415) 355-9041, SD (619) 239-3884Who is my representative/senator?: https://whoismyrepresentative.com

Chad Readler. (6th Circuit) He’s currently in the DOJ, attacking the Affordable Care Act, including protection for people with preexisting conditions, and he’s defended Trump’s policy of separating migrant children from their parents at the border. He has tried to undermine public education in Ohio; supported Betsy DeVos’  protection of fraudulent for-profit schools; fought for voter suppression for persons of color; advanced the administration’s anti-LGBTQ and anti-reproductive rights agenda; fought to allow tobacco companies to advertise to children, including outside day care centers; sought to undermine the independence of the Consumer Financial Protection Bureau; and advocated for executing minors. Readler’s own Senator, Sherrod Brown (D-OH), opposes his nomination for a lifetime federal appeals court judgeship, one step below the Supreme Court. Although we can’t stop him from being a member of the Federalist Society, Readler should never be a judge.

Eric Murphy. As State Solicitor of Ohio, Murphy has worked to disenfranchise voters, has argued against marriage equality in the landmark Obergefell v. Hodges, 135 S. Ct. 2584 (2015), case, has attacked reproductive rights, and has repeatedly sided with special interests over all Americans. Murphy’s record demonstrates a narrow-minded elitism that raises serious concerns that he will undermine critical rights and legal protections. His own senator, Sherrod Brown (D-OH) opposes Murphy‘s confirmation, explaining, “I cannot support nominees who have actively worked to strip Ohioans of their rights. Special interests already have armies of lobbyists and lawyers on their side, they don’t need judges in their pockets.” Federalist Society member.

Neomi Rao is an anti-regulation attorney with no judicial experience. She couldn’t pass scrutiny the first time around and had to be re-nominated to fill Brett Kavanaugh’s vacated DC Circuit Court of Appeals seat, a court that reviews the legality of DC-based federal agencies’ decisions and policies. Like Wendy Vitter below, she keeping quiet Brown v. Board as well as LGBTQ rights and marriage equality. Her day job as the current director of the Office of Information and Regulatory Affairs (OIRA) is eroding the exact federal regulations she’d review as a Circuit Court judge. Under Rao, OIRA blocked new guidance on handling workplace sexual assault and approved a rule change restricting the definition of sexual assault on college campuses. OIRA approved rolling back protections against racist housing discrimination and terminating the Clean Power Plan. The office is also finalizing a policy allowing healthcare providers to deny care to LGBTQ+ patients. Despite the conflict of interest between Rao’s current position and her potential judicial role, she has not promised to recuse herself from cases involving agency rules that she reviewed at OIRA. Rao also has a long history of attacking human rights, from her defense of the ableist practice of “dwarf-tossing” to college writings that blamed sexual assault survivors for being attacked and dismissed racial issues in America as a “hot, money-making issue”, which she now says she “regrets”. We’re sure she does. Considering that the court she’s being considered for is a hot fishing spot for picking new SCOTUS members, and that she believes that presidents can overrule coequal branches of government, independent agencies should serve at his pleasure, and been been critical of the independent counsel statute, let’s not put her that close to power over all of us. Her anti-regulatory views and troubling disregard for basic human dignity disqualify her from sitting on one of our nation’s most important courts. Federalist Society member.

Allison Jones Rushing. An under-qualified religious right extremist nominated to the federal appeals court, she presents a clear and present danger to women and the LGBTQ community. Rushing has worked for an advocacy group that supports criminalization of abortion, recriminalization of homosexuality, & discrimination against the LGBTQ community based on religious beliefs. The “Alliance Defending Freedom” a SPLC hate group, also is hostile to church/state separation, and has advocated for organized Christian prayer–specifically Christian prayer–in government and public school settings. Rushing is on the record as favoring heterosexual-only marriage laws. Here’s a letter from the Leadership Conference detailing why she such is a dangerous and inappropriate nominee. Federalist Society member.

Paul B.Matey is, according to civilrights.org, “a conservative ideologue who lacks the neutrality to serve as a fair-minded jurist.  His home-state senators from New Jersey oppose his nomination, which historically would have stopped it from proceeding, but Senate Judiciary Committee Chair Chuck Grassley has jettisoned this tradition, and others, in his haste to pack the federal courts with Trump extremists.  The Senate must oppose Mr. Matey’s nomination.” Federalist Society member.

Stephen R. Clark is a religious right advocate against a woman’s right to choose, contraceptives, and same-sex marriage. As an attorney Clark counseled right-to-life groups on how to obstruct abortion providers. He once wrote a legal brief that said using contraceptives leads to “increased risk-taking and sexual behavior,” an unproven theory that has been debunked. He has no business taking up room in a lifetime appointment on a Federal bench. Federalist Society member.

 Eric D. Miller  Miller’s nomination is strongly opposed by both national organizations and local tribes, as a result of his career spent fighting tribal interests and tribal sovereignty. Neither home state senator supports his nomination. In private practice, Miller has frequently represented powerful corporations fighting the interests of consumers and employees. At the Justice Department, his work as a career attorney included several controversial national security and reproductive rights cases. Miller’s personal comments and writings also raise questions about whether he understands the impact of the law on real people, or simply prefers that the law protect the wealthy few. And like many Trump nominees, Miller is a member of and speaker at the extremely conservative Federalist Society.

Wendy Vitter is such a horrible nominee, we gave her her own post, so deep dive here. She is as full of fake science concepts as the anti-vaccine extremists when it suits her anti-abortion agenda. For example, she champions baseless theories linking abortion and contraception to cancer and infertility. She won’t even say her opinion on Brown vs. Board of Education decision out loud. (See our section on the Federalist Society and racist dog-whistling at the bottom) She has stated anti-immigrant views and has worked in a DA’s office which was accused of multiple instances of unconstitutional behavior. The American Bar Association, which evaluates candidates for the federal bench, rated Vitter with its lowest “qualified” rating, with a minority of those who participated in the process rated her as “unqualified.” We’ve even made a reading list for her.

• Trump wants Wendy Vitter, who thinks Planned Parenthood killed 150000 women a year to be a federal judge (Mother Jones)
• Wendy Vitter won’t say if she supports Brown vs. Board of Education (time)
• In a field of terrible judicial nominees, Wendy Vitter is exceptionally unfit (the hill)
• Trump’s Latest Judicial Nominee Once Promoted Literature That Claims the Pill Causes ‘Violent Death’ (the slot)
• A judge pick who won’t back landmark Brown case is unacceptable (CNN)

These are the three Trump picks for our California 9th circuit court.

Daniel P. Collins, a former associate deputy U.S. attorney general who now is in private practice defending the oil industry in high-profile climate and environmental cases, including the current crop of climate liability lawsuits. One of his clients Royal Dutch Shell, is among the companies being sued by a group of California communities trying to hold oil companies accountable for climate change-related damages. Certain aspects of those lawsuits are already being appealed to the Ninth Circuit, which covers California, the Pacific Northwest as well as Alaska and Hawaii. He has already gotten a thumbs-down from Senators Feinstein and Harris.
“We also told the White House that we could not support Daniel Collins because concerns about his temperament and rigidity were raised during his vetting. In particular, we were told that Mr. Collins has a history of taking strong litigation positions for no reason other than attempting to overturn precedent and push legal boundaries. This should be a concern to all senators—it should not be a partisan issue. Consistency and stability are vital in the law.”

He is  a member of the Federalist Society.

Kenneth Kiyul Lee, is a first generation South Korean immigrant and a former associate counsel to President George W. Bush, now in private practice.  In college, he wrote that Asian Americans were “caught between” affirmative action “policies that limit their admission to select colleges and opportunistic conservatives” trying to “woo the Angry Yellow Male vote.” After law school, the nominee advised Republicans to “appropriate the language and logic of liberals’ most sacred shibboleth: affirmative action,” in order to obtain better representation of Republicans and Christian conservatives at universities. He has also written in favor of denying felons voting rights and has critiqued U.S. immigration policy.  He apparently tried to hide his more controversial writings from the selection committee. Big mistake, Ken! Sen. Dianne Feinstein and Harris went on record to state:
“We made clear to the White House that we could not support Kenneth Lee in this package, in part because he failed to turn over controversial writings to our judicial selection committees, which is an important part of the vetting process. Instead, the writings were later discovered by staff and press.

“In addition, the writings themselves outlined extreme views on a number of important issues like affirmative action and voting rights. This has been disqualifying for previous nominees, including Ryan Bounds to the Ninth Circuit.

He is a contributing writer to the Federalist Society.

Daniel A. Bress is having problems right out of the chute. Senators Feinstein and Harris have gone on record to say:

“Finally, we raised concerns about Daniel Bress since he lives in Washington, D.C., not California, is quite young and has no judicial experience.

“Chairman Graham has said he wants to protect senators’ role in the nominations process. Historically, the greatest protection for home-state senators has been the blue-slip tradition. When he was chairman of the committee, Senator Leahy ensured that no nominee had a hearing unless Republican senators returned their blue slips. We hope Chairman Graham will honor the same standards Republicans were afforded when a Democratic president held the White House.

“We’ve shown that we’re willing to work with the White House, agreeing to candidates from its list and negotiating a deal on district courts—the same should be done for the Ninth Circuit.”

According to his law firm bio, Bress represents clients in “complex litigation matters involving class actions, government fraud, commercial disputes, products liability, securities fraud, and employee benefits’ for clients like Honeywell, United Technologies Corporation, BASF, Boeing, Raytheon and Wyndham. Prior to joining his law firm, he served as a law clerk to Justice Antonin Scalia of the Supreme Court of the United States and Judge J. Harvie Wilkinson III of the United States Court of Appeals for the Fourth Circuit. He is also a member of the Federalist Society.

Background on Trump’s strategy…

Anytime Trump is stopped from doing something truly horrid, it’s most likely because a judge stopped him. In response, with the help of the his right-wing Federalist Society advisors, are working on destroying this braking mechanism.

Not just for himself, but for the next generation of corrupt politicians , racists, homophobes, xenophobes, misogynists, anti-environmentalists, anti-worker corporations, forced-birthers and all the other dark forces he’s pulling from our nightmare attic. You will note that there are no older people in their selections. They want their influence to last for decades.

Donald Trump, Mitch McConnell and Chuck Grassley (former Chairman of the Senate Judiciary Committee) spent most of 2017 filling the 5th Circuit Court with far right wing extremist judges, all hand-chosen by the alt-right Federalist Society. Remember this guy?

Yeah, we called on him…and his friends. Judge James C. Ho,  Judge Stuart Kyle Duncan, Judge Kurt D. Engelhardt, Judge Andrew S. Oldham. None of these people deserved to be called judge, but now they’re in power. As a result, all the states in the 5th circuit are essentially a lost cause for the next 20-30 years in terms of enviro rights, LGBTQ rights, repro rights, voting rights, workers’ rights, etc. Serious damage was also done to the 8th Circuit Court as well. Trump and McConnell are now gunning for the 6th Circuit Court, with the 9th – currently the most progressive Court that includes California – also under attack.

Who is this Federalist Society that keeps recommending these horrible people to Trump anyway?

One definition: “The Federalist Society, a Right-wing network of lawyers, judges and supporters, is undoing civil rights and other gains made through the courts .“(ratical.org)

One simple truth is that the Constitution did not come with an instruction manual defining the one and  ONLY CORRECT way to deal with constantly changing societal values and language. That the president must be 35 years old remains clear. The exact meaning of words like “right,” “unreasonable,” “probable cause,” “due process,” “excessive,” “cruel and unusual” and “equal protection” constantly evolves.

How judges interpret tricky Constitutional issues depends on their political bent and societal prejudices. Like the Bible, the source both of pro-slavery arguments and the civil rights movement, Constitutional arguments can be made for most positions with enough carefully cherry-picked phrases and historical references. Libertarian-oriented Federalist Society members churn their way through the legal world with “Federalism” and “Originalism” as their twin North Stars, as uninterested in the civil rights of those ignored by our first Constitution as its original authors.

The Federalist Society and Federalism: Society members believe that authority of the federal government is limited, that states are sovereign bodies, and that courts should enforce limitations on federal power and bolster the power of states. However, since “…white supremacy was the de jure governing philosophy in the 13 colonies and the United States from 1619 to the 1960s…” there was some legal cleanup work to do. “(White supremacy) did not really begin to be fully dismantled until the civil rights movement and the cumulative impact of court rulings…most notably in 1954 (Brown v. Board of Education), 1964 (federal Civil Rights Act), 1965 (federal Voting Rights Act) and 1968 (federal Fair Housing Act).”  In a federalism-based decision on Shelby County v. Holder, the Roberts Court struck down the Civil Rights Act’s requirement that nine states with histories of blatantly racist voting barriers prove to the U.S. Attorney General that any new voting rules would not be discriminatory. Shelby County v. Holder won as a violation of the “equal dignity of states“, familar wording that was also used in the horrendous Dred Scott decision. Texas immediately moved to enact, again, discriminatory voter-identification laws, just like in the good ol’ days.

The other decision based by federalism and misinformation was NFIB v. Sebelius. Chief Justice Roberts stated that Congress exceeded its spending power because it had coerced states into participating in the expanded Medicaid program by authorizing the withholding of funds for existing Medicaid programs, if states refused to participate. His ruling has been catastrophic for many of the most vulnerable Americans.

As constitutional scholar Stephen Griffin explains, “by making it easy for states to decline to participate in the expanded Medicaid program, the Court reinforced the heightened discrimination against poor African Americans in the South, a legacy that the United States has been trying to overcome since the Civil War. As the Court’s decision in Shelby County gave Southern states a green light to renew their long-standing pattern of discriminating against African-American voters, so the NFIB decision encouraged Southern states to continue another long-standing tradition—that of severely restricting social-service benefits to their poorest citizens, most of whom are African American.”

The Federalist Society and Originalism: This group believes that their libertarian-fueled “Originalist” methodology, a backwardly-focused attempts to read the minds of the original framers of the Constitution, is the only correct pathway. This creative-writing class nonsense was critically debunked in 1939 by Professor Jacobus tenBroek of UC Berkeley. He described their position here: ” 1) judges should “abandon” contemporary perspectives in deference to the “vantage point” of the people living when the Constitution was adopted; (slave holders? white male property holders?) and 2) the original meaning of the Constitution does not change“(Vox). More recently, Gorsuch has stated “Judges should … strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.”

Who says?

This is the same paternalistic “father knew best” framing that drives all of conservative politics. That there have been large revisions to the original constitution, as the original authors left out important issues, like universal suffrage, racial and gender equality, does not pose an obstacle for the ideologues of the Originalist movement, which included Supreme Court Justices Robert Bork and  Antonin Scalia, and now Gorsuch, Thomas and Kavanaugh. They decide what ruling they want based on the their own anti-government agenda of the Libertarian party or the anti-everybody-else litany of the current GOP, and then engage in their favorite creative writing game – “What would James Madison have done?” to justify it for posterity. One of Trump’s shortlist nominees, Amy Coney Barrett, admitted that it’s almost impossible to apply originalism faithfully because “adherence to originalism arguably requires, for example, the dismantling of the administrative state, the invalidation of paper money, and the reversal of Brown v. Board of Education,” a decision originalists view as an “activist” ruling. Ignoring that the Constitution deliberately left room for growth and corrections, FS members work to fit everything back into the original shoebox in creative ways that don’t make them seem immediately like the misogynistic, xenophobic rascist people of privilege that they are.

The Brown v. Board of Education: The 14th amendment is a particular itch with the Federalist Society (great article on originalism here), as it lies at the the heart of the most famous reversal of Supreme court rulings of its time. Brown v. Board of Education was a total slap at “state’s rights” and all the racist trapping that follow those words around. The ruling trounced the Jim Crow “separate but equal” ruling of “Plessy v. Ferguson (1896). The whole way that Chief Justice Earl Warren made his decision still annoys the heck out the the FS crew and a basic underlying racism underlies their endless arguments. Author Bruce Ackerman, Yale law professor and author of We the People, Vol. 3: The Civil Rights Revolution, stated: Conservatives invoke Brown for an “anti-classification” principle that views any state action which classifies people on the basis of race as constitutionally unsound. Liberals, on the other hand, draw out an “anti-subordination” principle, in which any state action that socially subordinates a group of people is unconstitutional. “Brown is an anti-originalist opinion. People, [Chief Justice Earl Warren] says, have argued about this in the court; we can’t figure it out, it’s indeterminate—they didn’t really have public education in a serious way in 1868 [when the Fourteenth Amendment was ratified]. We’re going to have to think ourselves about this. Anybody who is living in America today knows that separate can’t be equal.”  

Well, Warren did. The Federalist Society, maybe not so much.

Chief Justice Robert (an FS member) decided that Brown v. Board of Education, as a precedent to Parents Involved in Community Schools v. Seattle School District No. 1 (2007) was about color blindness rather than integration, and stuck down the school’s integration plans as being too heavily dependent on race. As legal scholar James Ryan explains, Roberts’s description of Brown not only distorts history but insults advocates who risked their lives to integrate public education as well as citizens and school officials who continue to work for integration today.

Are these nominees a danger to us?

As of January 2019, 25 out of 30 of President Trump’s appellate court nominees were current or former members of the society. Not a surprise as they are chosen by Leonard Leo, the society’s executive vice president and right-wing extremist. Per Wikipedia “Federalist Society members have generally chosen not to criticize President Donald Trump …on his breaches of …legal norms and traditions in exchange for the gift of Supreme Court Justice Neil Gorsuch…. In May 2018, the Federalist Society hosted a phone call entitled “examining the legality of the Mueller Investigation”, where one of the featured speakers has argued that Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 election is unconstitutional.”

“What they have in common is an exceptional hostility to the progress that’s been made in this country since the New Deal, whether that’s to workers, civil rights litigants, women, consumers or people who care about the environment,” Aron said. “Nominees being confirmed by the Republican Senate today would have been deemed unqualified even under President George W. Bush because of their extremism.”

From the Nation: “Federalist arguments include: Sexual-harassment and gender-equality laws impose illegitimate burdens on business; the powers of the Environmental Protection Agency should be exercised by the free market or, at most, by local or state government; juries are too unpredictable to be given the power to award punitive damages against large corporations but legitimate enough to be empowered to impose the death penalty; welfare laws by and large should be repealed; hate crimes are not a separate and more reprehensible category of criminal behavior than crimes not motivated by animus toward people of different races or sexual orientation; and the right of the people to keep and bear arms means empowering individuals to take up arms, not just preserving organized state-based militias.”

Here are some of their “gifts” to us so far.

• They have argued that courts should not take race into account when making decisions. They believe that there is no legal difference between considering race or gender for purposes of exclusion and considering race or gender for purposes of inclusion. They argue that both are harmful and make racial problems worse.
• They have forcefully argued against regulations on guns and they have been influential in shifting legal views on gun rights to the extreme.
• They influenced on the Citizens United Supreme Court ruling which corrupted  regulations on campaign finance.

For those of us who believe our founding fathers trusted us with the car keys, believe that “true originalism — genuinely following the founders’ intent — requires us moderns to interpret constitutional language in light of our own, not their, moral and linguistic norms.”

Fight against each and every one of these nominees.

Deeper dives

• The problems with Originalism (NYT)
• Judicial Originalism as myth (vox)
• Movin’ on Up with the Federalist Society (Nation)
• Why Supreme Court “Originalists” are wrong about the Constitution. (USNews)
• Constitution Myth #1: The Right is “Originalist” – Everybody else is “idiotic” (atlantic)
• The Federalist Society will soon have a 5-4 stranglehold on the Supreme Court (Slate)
• The Federalist Society’s threat to Feminism and the Supreme Court (MS)
• Use by the US Supreme Court of Extrinsic Aids in Constitutional Construction (scholarship.law.berkeley)