Will The GOP Block Obama’s Judges? Ctd

With a Republican Senate likely to give Obama problems in the realm of judicial appointments, Jonathan Ladd bets Justices Ginsburg and Breyer are having second thoughts about holding off on retirement:

[T]o find a situation as favorable for replacing Breyer and Ginsburg with liberals as  2013-14 was, we have to wait for the next time Democrats control both the Presidency and the Senate. Because presidential elections are so influenced by short term economic swings, the results in 2016 (and all future elections) are very uncertain. And with the Republicans’ new 54 seat Senate majority, party control of the Senate after 2016 is up for grabs as well. Considered together, the joint probability of Democrats controlling both the Senate and the Presidency after 2016 is only modest. The likelihood of a big fight over a Supreme Court nominee in the next decade between a president and Senate of different parties, resulting in one or more nominees being rejected and possibly a seat being vacant for an extended period of time, is reasonably high and just got higher.

Noah Feldman considers who Obama might nominate if a seat on the court opens up in the next two years:

To be confirmed by a Republican Senate, the nominee would have to be at least a credible centrist — more in the model of Sandra Day O’Connor or Kennedy then Ginsburg or Breyer.

What potential candidates fit that description? The big midterm election winners in the pool of potential justices are people like Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia circuit, or Sri Srinivasan, a relatively recent appointment to the D.C. Circuit. … Garland is known as a moderate, and he could plausibly replace any of the three old white men should one of them have to step down. As a judge he has managed not to incur the wrath of conservatives, and he is probably confirmable. Srinivasan has much less experience, having been appointed to the federal bench in 2013. But Srinivasan has even less partisan baggage than Garland.

Jonathan Bernstein offers a solution that he thinks would avoid a chaotic confirmation process:

Barack Obama could select an old nominee, who might be confirmed. In the event of a vacancy, a normal replacement could easily serve for decades. On the other hand, a nominee at age 75 or so would lower the stakes considerably, to the point at which obstruction would be less of a partisan imperative, even if the nominee was broadly within the liberal judicial tradition. Obama is entitled to nominate anyone he chooses. And Republicans are entitled to oppose someone they think would be terrible for the nation (and terrible for groups in their party coalition). But both sides have an obligation to find and accept reasonable compromises. If a senior appointment is the only way out, it’s hard for either side to oppose it.

The Curious Case Of Zivotofsky v. Kerry

Since 1948, the US has declined to formally recognize Israel’s sovereignty over Jerusalem, maintaining that the final status of the city remains unsettled as long as the Israeli-Palestinian conflict does. But in 2002, Congress passed a law regarding “United States policy with respect to Jerusalem as the capital of Israel”, which, among other provisions, permitted US citizens born in Jerusalem to have their place of birth listed as “Israel” on their passports. State Department policy is to list only “Jerusalem” without designating a country. Bush signed the legislation but issued a signing statement protesting that it interfered with his authority to conduct foreign policy.

Enter Menachem Zivotofsky, the plaintiff in Zivotofsky v. Kerry.

When Zivotofsky was born in Jerusalem shortly after the 2002 law was enacted, his parents requested “Israel” as the place of birth on his passport. The State Department denied the request, so the Zivotofskys went to court, arguing that State had violated the law. The government countered that the law infringed the president’s constitutional power to decide whether to recognize foreign nations. The DC Circuit first dismissed the case as a “political question” that the courts could not decide; SCOTUS reversed that decision and sent the case back to the circuit court, which ruled in the government’s favor. The family appealed, and the case is now before the Supremes for a second time. Amy Howe reviews Monday’s oral arguments, in which “lawyers for the two sides painted very different pictures of the potential effects of the law”:

Representing the United States, Solicitor General Don Verrilli told the Justices that the “question of the status of Jerusalem is the most vexing and volatile and difficult diplomatic issue that this nation has faced for decades.”  He cautioned the Court that upholding the statute would undermine the president’s credibility in the Middle East peace process, and he reminded the Justices that the passage of the law had prompted “mass demonstrations in Jerusalem, thousands of people in the streets, some turning violent.”

Alyza Lewin, representing Zivotofsky, downplayed the government’s warnings about the possibly dire international consequences of the law, dismissing them as “grossly exaggerated.” Eventually, she suggested, listing Israel as the birthplace on the passports of U.S. citizens born in Jerusalem would “become a non-issue.”  And Congress has the power to require the State Department to do so, she maintained, pursuant to its power to regulate passports.

Though he suspects that the amici curiae care more about whether the US recognizes Israeli sovereignty over Jerusalem than about the separation-of-powers question at the heart of the case, Noah Feldman doesn’t buy Lewin’s argument:

Congress has indeed passed laws authorizing issuance of passports, and it’s not obvious that the world would shake if a handful of passports read “Israel” instead of Jerusalem. The problem is that the argument undercuts itself. After all, why is Zivotofsky bringing the case in the first place if not to make it appear that the U.S. has now recognized Jerusalem as part of Israel? Why, for that matter, did Congress pass the law if not to send that message?

In the real world, if the court held for Zivotofsky, it’s true that sophisticated observers would understand that Congress, not the president, had set the policy — but that would precisely reflect a conflict between the different branches of government, a circumstance that the Constitution for the most part has been interpreted to prohibit. Of course, it’s impossible for a tripartite government truly to speak with one voice on foreign affairs. But it’s definitely a goal toward which a rational constitutional system should aspire.

Jack Goldsmith favors the government’s position and urges the court to rule that Congress never had the authority to enact the 2002 law in the first place:

The beauty of ruling against petitioner on the basis of a lack of congressional power for the statute is that it allows the Court to avoid the super-hard problem of defining the contours of exclusive presidential power based on the vague and uncertain textual materials in Article II.  In other words, the Court can resolve the case, and mark off a narrow presidential power to determine what country should be designated on a passport, without reaching or discussing Article II (at least not discussing it very much), by focusing instead on the more precise terms of Article I.

And for you legal realists out there, this way of resolving the case satisfies two larger imperatives, somewhat in tension, that will certainly be in the back of the minds of many Justices: (1) not wanting to cross swords with the Executive on an important Middle East policy at a very fraught time of Middle East relations; and (2) not wanting to grant the president a large or vague exclusive presidential power related to recognition.

But Yishai Schwartz sees the case differently – as an opportunity to reassert Congress’s authority in international affairs:

Congressional supremacy is the basis of our entire constitutional system, and congressional oversight our best protection against tyranny. To be sure, a powerful executive, capable of acting against sudden threats and during periods of Congressional dysfunction (like now), is essential. Someone must fill the void. But allowing presidential discretion to become presidential supremacy undermines basic principles of democracy. In a democracy, after all, it is the people that are sovereign. It would be bizarre if their representatives, tasked with confirming treaties, regulating international trade and declaring war, had to bow to the president in smaller matters of foreign policy.

Dahlia Lithwick contends “that the worst-situated government agents to decide Mideast peace policies and whether what’s written on passports perhaps implicates Mideast peace policies, are the nine justices of the U.S. Supreme Court”:

Nobody is quite sure, after argument, which side will cobble together five votes, or for what. One thing that is certain is that even if the court wants to try to look neutral on the subject, it will have taken sides, in a massively consequential fashion. And while it’s always fascinating to hear the nine Justices bat about matters of foreign policy “Taiwan!” “Crimea!” “Barcelona!” the way they might do at a dinner party, it’s clear that dinner party knowledge is pretty much what they have to offer. And by deciding who the decider will be, at least on matters of foreign policy, even the neutral justices, aren’t.

Garrett Epps hopes the court rules clearly and decisively, noting that separation-of-powers cases can have surprisingly broad consequences:

Consider that a minor dispute over the sale of machine guns to Bolivia is still quoted today. That 1936 case, United States v. Curtiss-Wright Export Corp., provided the opportunity for Justice George Sutherland to proclaim (though the issue was not even present in the case) the “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations”—language that presidents have relied on since in issues more important than Bolivian arms sales, most notably George W. Bush’s claim of unilateral authority to attack foreign nations without congressional authorization.

SCOTUS Split On Voter ID

In a ruling issued at the unusual hour of 5 am on Saturday morning, the Court allowed Texas’s voter ID law to remain in place for the upcoming elections, citing concerns about disrupting the voting process. But not all of the justices were on board:

A majority of justices rejected an emergency request from the Department of Justice and civil-rights groups to keep the state from enacting a law that requires citizens to produce prescribed forms of photo identification before they could cast a ballot, while three justices—Ruth Bader Ginsberg, Sonia Sotomayor and Elena Kagan—dissented. “The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters,” wrote Ginsburg.

The order was delayed, apparently, because Ginsburg insisted on issuing a dissenting opinion. Rick Hasen digs into her six-page dissent, which he sees as laying the groundwork for a future battle:

Importantly, Ginsburg concluded that the effect of the law in its entirety would be to diminish voter confidence in the system. “The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters,” she wrote.

The Texas case will likely make it back to the Supreme Court, perhaps next year, after the 5th Circuit takes a full look at the case. While the Supreme Court’s vote on the stay order in the Texas case does not tell us for sure how things will go when the court gets to the constitutional merits of the challenge, the five conservative justices on the Supreme Court are likely to let Texas put its ID law in place because of their general view of the scope of the Constitution and the Voting Rights Act. No doubt Justice Ginsburg knows this.

How Judis understands the motivation behind the law:

[Gov. Rick] Perry claimed that the law would “uphold the integrity of our state’s electoral process and insure our state has passed the proper protections against voter fraud.” The law, which requires a photo ID, was intended to prevent voter impersonation, but as [judge Nelva Gonzales] Ramos pointed out, Texas had uncovered exactly two cases of voter impersonation from 2001 to 2011. Its real purpose was to forestall a demographic time bomb that could threaten Texas’ Republican majority. From 2000 to 2010, 78 percent of Texas’s population increase consisted of African-Americans and Hispanics, who could be expected to support Democrats rather than Republicans. If those population trends were to continue, and if the new Hispanic voters (who made up the bulk of the population increase) were to flock to the polls, Republicans could be doomed.

Scott Lemieux admits that there is “a quasi-defensible reason for the court’s latest move”:

The Supreme Court is usually reluctant to issue opinions that would change election rules when a vote is imminent. For example, the court recently acted to prevent Wisconsin from using its new voter ID law in the upcoming midterms, coming to the opposite result from the Texas case. That is the principle at work here, and on a superficial level it makes sense.

But as Ginsburg — joined by Justices Elena Kagan and Sonia Sotomayor — points out, the general reluctance to change election rules at the last minute is not absolute. In Wisconsin, using the new law would have created chaos. For example, absentee ballots would not have indicated that identification was necessary for a vote to count, so many Wisconsin voters would have unknowingly sent in illegal ballots.

In the Texas case, conversely, there is little reason to believe that restoring the rules that prevailed before the legislature’s Senate Bill 14 would have been disruptive.

Ultimately, the court may end up backing Ginsburg’s contention that the law is unconstitutional, but Ian Millhiser complains that letting it stand even for one election is dangerous, and looks to history for the reason why:

For much of the Jim Crow Era, the South was a one party region. General elections were largely formalities, and the Democratic Party’s candidate was all but guaranteed victory. So, in 1923, Texas tried to prevent African Americans from voting by enacting a law providing that “in no event shall a negro be eligible to participate in a Democratic party primary election held in the State of Texas.” When this law was struck down by the Supreme Court, Texas enacted a new law allowing the state Democratic party to establish rules that only permitted “white democrats” to vote in the primary. When that law was struck down, the state party passed a resolution, pursuant to no law whatsoever, providing that only “white citizens” may vote in a Democratic primary. This action by the state Democrats was ultimately upheld by the Supreme Court, although the justices reversed course nine years later.

The lesson is that, if you allow a voter suppression law to go into effect for just one election, then the supporters of that law are likely to come up with a new way to suppress the vote if the first law is ultimately struck down. And even if the second voter suppression law is ultimately struck down, this cycle can continue forever so long as each law is allowed to be in effect for just one election.

You Can’t Hurry The Supremes

Dahlia Lithwick puzzles over the recent spate of high-impact SCOTUS decisions that came in the form of injunctions and cert denials. She looks to explain why “unsigned, unexplained reasoning is the new black”:

Between the state legislatures getting way out in front [o]f the court’s doctrine on voting rights and abortion, and the court’s decision to hang back and wait for conflicting decisions from different circuit courts in the marriage equality cases, what we seem to be witnessing is a Supreme Court that is dealing with events moving at lightening speeds. It may be attempting to impose what [former acting solicitor general Walter] Dellinger describes as “procedural dignity” upon the process. Even when the court issues late-night stays and unsigned orders, the court is clarifying that it gets the last word, even when the last word is haughty silence.

Thus, in the voting rights context, the court is merely ensuring that states do not put new systems in place immediately prior to the midterm elections. In the marriage equality context, the court is simply affording the states the opportunity to arrive at the correct conclusions on their own schedules.

And in the Texas abortion context, the court is reacting to a set of Texas regulations that appear to completely reinterpret (if not blatantly disregard) the rule announced by the court itself in its 1992 decision in Planned Parenthood v. Casey. As Greenhouse notes, the 5th U.S. Circuit Court of Appeals more or less ignored Casey when it ruled on the Texas abortion regulations: “In holding that the forced closing of every abortion clinic south and west of San Antonio, requiring women to travel hundreds of miles to exercise their constitutional right, was not an undue burden in purpose or effect, the Fifth Circuit ruled in blatant disregard of the Casey standard.” Really, was the court going to permit that to happen? When the court bats these issues away, it’s merely saying that nobody rushes the highest court in the land. Not even Texas.