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How I answered a survey from the Progressive Change Campaign Committee about the Merrick Garland nomination

I received an email this morning from the Progressive Change Campaign Committee,, asking that I complete a survey on the Garland nomination.  The email began with this question: What do you think about Merrick Garland and the Supreme Court vacancy now?  It continued:

The president nominated Merrick Garland to fill the vacancy on the Supreme Court.

After a day of media reporting on his record, and Senate Democrats calling for the process to move forward, we want to know how you feel about this fight.

Your answers below will help shape the PCCC’s activism on this.

Here are the survey questions and my answers:

QUESTION: Overall, how do you feel about President Obama’s decision to nominate Merrick Garland?

1) Very Enthusiastic   Somewhat Enthusiastic   2) Pretty underwhelmed   3) I do not like this decision   4) I don’t know

ANSWER: I do not like this decision


QUESTION: How enthusiastic are you to keep taking action against Senate Republicans to allow a hearing and fair process to move forward for Merrick Garland?

1) Very psyched. Ready to fight those Republicans!   2) Somewhat enthused. But we all need to take some action.   3) I still need to learn more before taking any action.   4) I’m not feeling it at all.

ANSWER: I still need to learn more before taking any action.

QUESTION: Wednesday, the PCCC launched a new petition saying this:

Petition: Now that the President followed the Constitution and nominated a Supreme Court Justice, Senate Republicans should do their job and allow a fair hearing and process to move forward. The Court needs someone who understands the real world impact of the Court’s decisions on hardworking Americans. 

Should we add your name to this petition?

1) Yes, add me as a signer.   2) No, do not add me as a signer.

ANSWER: No, do not add me as a signer.

QUESTION:  What do you like most about Merrick Garland being the nominee?

ANSWER: That he once dissented in a case in which his two panel colleagues (one of them John Roberts) ruled against a whistleblower and the federal government (who were on the same side in the case). Although the narrow issue was whether or not the False Claims Act applies to Amtrak contractors, Garland’s dissent did indicate strong support for the role of whistleblowers.  He dissented similarly in a free-press case involving disclosure of the names of whistleblowers (in a case in which the criminal defendant requesting the disclosure was actually a sympathetic figure and was innocent).

QUESTION: What do you like least about Merrick Garland being the nominee?

That his near-religious belief in the sanctity of precedent may mean that the precedents set by the Conservative Legal Movement justices, including those that overturned earlier precedents will remain law until one of the four conservative justices is replaced by a Dem president.  In other words, that the panoply of dramatic changes in the law amounting to a Conservative Legal Movement checklist with, by now, lots of checks indicating completion—Sherman’s-march-through-Georgia- style—will remain law for at least the next several years.  Citizens United and the Voting Rights Act opinions are just two examples.

QUESTION: What do you most still want to learn about Merrick Garland?

ANSWER: Because he is a judge on the D.C. Circuit rather than on one of the other regional circuit courts, he has never ruled in a habeas-petition case challenging the constitutionality of a state-court criminal conviction, and therefore on the threshold issue of federal-court jurisdiction in such cases. In other words: on the right of state courts to violate the constitutional rights of individuals.  I also would like to know how broadly he views the Supreme Court-fabricated “qualified immunity” of police officers and prosecutors who are sued for, say, withholding exculpatory evidence or just plain fabricating evidence.

Meanwhile back at the ranch (in Corpus Christi, TX) …

Update re Rick Hasen’s position appended below. 10/11 at 11:18 a.m. (and edited for clarity and a typo correction on 10/11 at 6:27 p.m.).


Addendum on Purcell v. Gonzalez added below. 10/10 at 3:20 p.m.


At about the same time last night that the Supreme Court issued its one-page stay-of-the-stay in Frank v. Walker, the Wisconsin voter ID case, Corpus Christi-based U.S. District Judge Nelva Gonzales Ramos, and Obama appointee, issued a 147-page opinion in Veasey v. Perry, the Texas voter ID case that alleges violations under a still-standing section of the Voting Rights Act as well as violations under the Constitution.  Notably, Judge Ramos began her opinion with this paragraph:

The right to vote: It defines our nation as a democracy. It is the key to what Abraham Lincoln so famously extolled as a “government of the people, by the people, [and] for the people.”1  The Supreme Court of the United States, placing the power of the right to vote in context, explained: “Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.”2

The first footnoted reference is to the Gettysburg Address.  The second footnote is to Reynolds v. Sims. Election Law guru Rick Hasen, a professor at UC-Irvine Law School and prolific blogger and article writer, blogged last night about rulings.  Since the Seventh Circuit panel issued its emergency order in the Wisconsin voter ID case on Sept. 12 dissolving the trial judge’s stay of the Wisconsin statute, Hasen has written extensively about a 2004 Supreme Court opinion, Purcell v. Gonzalez, which holds that states are not entitled to make significant changes to voter-registration or poll access so close to an election that the changes will cause confusion and disruption of access.  Or, as Hasen put it in a blog post on Oct. 2 blog post about the Wisconsin plaintiffs’ petition filed hours earlier asking the Supreme Court to issue the emergency order that it did issue yesterday:

C’mon folks. This should be a no brainer. You don’t impose new requirements in the weeks before an election without adequate preparation which runs the serious risk of disenfranchising voters. If the Supreme Court doesn’t recognize that, we are in even worse shape than I thought.

But in his post last night about the Supreme Court’s order in the Wisconsin case and Ramos’s opinion in the Texas case, he says this about the Ramos opinion:

This order too [like the Seventh Circuit panel’s order in the Wisconsin case] creates a huge Purcell problem, as I’ve blogged, changing the rules so close to the election. If the district court orders an immediate stop to Texas’s ID law, I expect the 5th Circuit (if not the Supreme Court) to reverse that on Purcell grounds.

I don’t understand the basis for that claim and I disagree with the statement.  The Ramos ruling requires nothing at all of voters and nothing of election officials and poll workers other than that they not require that voters produce an ID.  There’s no chance at all that this change would disenfranchise voters.  Hasen is an Election Law expert and I certainly am not, but unless Purcell creates a categorical bar to any change, irrespective of the nature, purpose and effect, shortly before an election—and doubt that it does—why would Purcell be a stumbling block to an order barring enforcement of a voter ID law?* I have no idea. I discussed Purcell in the context of the Texas case, Frank v. Walker, extensively in my post yesterday.  I also discussed the relation of Citizens United and McCutcheon v. FEC to all the voter ID litigation.  That post is still very relevant to all the legal challenges to the voter ID  laws, and I hope a few people read it!

*Sentence corrected for two minor typos, 10/12 at 12:54 p.m. Sighhhhhh.


ADDENDUM: As an elaboration on the Purcell v. Gonzalez issue, I want to highlight an exchange between reader JimH and me in the Comments thread:

JimH/October 10, 2014 1:28 pm

I am not a lawyer but I claim to read English. This case seems to have decided by the various courts in 2006.

At first blush, Purcell v Gonzales might seem to speak out against court decisions made close to an election.

But in that case on 20 October 2006 the US Supreme Court wrote of the Court of Appeals “by failing to provide any factual findings or indeed any reasoning of its own the Court of Appeals left this Court in the position of evaluating the Court of Appeals’ bare order in light of the District Court’s ultimate findings.”

Thus the injunction seems to have been vacated based on the reasoning of the District Court on 12 October 2006. See the very brief summary below.


11 September 2006 the District Court denied the request for a preliminary injunction but did NOT issue its finding of facts and conclusions of law.

5 October 2006 the Court of Appeals issued its four sentence order enjoining Arizona from enforcing Proposition 200′s provisions.

12 October 2006 the District Court issued its finding of facts and conclusions of law. It decided in favor of denying the injunction.

20 October 2006 the US Supreme Court vacated the Court of Appeals injunction.

ME/October 10, 2014 3:10 pm

Jim, yeah, the Purcell opinion seems to me based almost entirely on the fact that the district court—that is, the trial judge who actually heard and weighed the evidence—had (finally) written a detailed opinion that discussed the evidence and that said that there were two critical safeguards against disenfranchisement (the provisional-vote option on election day, and the right to vote early without any ID requirement), and therefore the statute was okay.  The Supreme Court said that that conclusion did not appear clearly erroneous—which is the standard of “deferential” appellate review of a district court’s ruling—and the appellate court did not state why it thought the district court ruling was erroneous (i.e., that the statute WOULD disenfranchise some voters), and therefore, in light of the nearness of the election, the Supreme Court vacated the appellate court’s stay of the district court’s order allowing enforcement of the statute.

That’s actually the opposite of what happened in both the Wisconsin case and the Texas one. In both cases, the district judge heard and weighed evidence and found that enforcement of the statute WOULD disenfranchise a substantial number of voters.  So why would Purcell require the Fifth Circuit Court of Appeals to reverse the district court’s order that was based upon a detailed evidentiary finding of significant disenfranchisement if the statute is enforced—when the stay of enforcement requires nothing more than that poll workers not require IDs of voters?  I don’t get Hasen’s claim.

One important thing about Purcell is its emphasis on voter fears of dilution of their vote because of voter-impersonation fraud—and how important voters’ faith in the integrity of the electoral process is—as justification for enactment and upholding of these statutes.  I deconstructed that claim in my post yesterday about “the Confidence Fairy.”  But what’s so striking about Purcell is that it absolutely cries out for acknowledgement by the courts that the disenfranchisement of substantial numbers of otherwise-eligible voters dilutes the political power of voters who share the disenfranchised voters’ candidate preferences. And those voters know it. A failure by the Supreme Court to do that once it hears these cases in full and rules on the constitutionality of these statutes would be glaringly partisan.


UPDATE:  Hasen has an article on Slate, published yesterday about 15 minutes after I posted this post, in which he largely but not entirely backtracks on his position of the night before that Purcell creates a huge problem for the Texas plaintiffs and that the Fifth Circuit Court of Appeals likely will dissolve the district court’s stay.  (Apparently I’m not the only one who was dumbfounded by his Thursday-night blog post, and most likely by yesterday morning his email inbox was flooded with comments about it.)  He writes:

This is not the first time an emergency election case has reached the Supreme Court. In the 2006 Purcell case, the Supreme Court reversed an order of the U.S. Court of Appeals for the 9th Circuit that put Arizona’s new voter ID law on hold. The justices seemed especially perturbed that the 9th Circuit did not explain its reasons for acting, but the Supreme Court focused on the risk of last-minute changes on voters and the election:

“Faced with an application to enjoin operation of voter identification procedures just weeks before an election, the Court of Appeals was required to weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases and its own institutional procedures. Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.”

We can understand Ohio, North Carolina, and Wisconsin as cases all applying this Purcell principle. But the Texas case shows that the Purcell principle may not be that clear. Is the principle that one should not change election rules before the election because doing so can cause voter confusion and/or electoral chaos? Or is it that courts must weigh such risks? How should such risks be weighed against the risks of voter disenfranchisement? Or is it that courts must give good reasons for blocking a law before an election?

There probably has to be some weighing here. If there is a serious risk of voter disenfranchisement, as there was in Wisconsin, where the state conceded that up to 10 percent of eligible voters might not be able to get the right ID in time for November’s elections, that’s a good reason to side with the law’s challengers.

But what about Texas? On the one hand, the law is likely to have broad disenfranchising effects, especially on poor and minority voters. On the other hand, if the court orders Texas not to use the ID rules in this election, it risks some voter confusion and messes up the plans of election administrators.

Perhaps that’s not a big cost, because the worst that happens is that voters bring identification to the polls they don’t really need, and election officials just shelve the plans they had to check IDs for the election.

Okay, look: Only in the Mad Hatter’s rabbit hole does voter participation increase by turning away people who show up at their polling place without a government-issued photo ID. If the objective of Purcell truly is to not tamp down on voter participation—to not cause people to refrain from exercising their right to vote—than Purcell cannot serve as a basis for an appellate court or Supreme Court order dissolving Judge Ramos’s stay.

I mean … seriously?

Can the SEC prohibit publicly-traded corporations from making political expenditures (and, eventually, direct campaign contributions) unless the corporation first gets approval from a majority of shareholders?

It’s already become something of a favorite parlor game among liberals, especially among liberal law geeks, to speculate about when the Supreme Court will strike down state and federal statutes that prohibit corporations from making direct campaign contributions to candidates and political parties. In Citizens United, the court killed statutory bars to corporate and union political so-called-independent expenditures, and, in McCutcheon, removed aggregate limits to human beings’ direct contributions to candidates and parties.  But, for now, state and federal laws prohibiting direct corporate and union contributions–some of these laws dating back to the early part of the last century, as I understand it–remain intact.

To the surprise of some (but not me), the Court refused last week to hear a challenge by an incorporated nonprofit political organization.  The most obvious likely reason that they declined is that, as a public relations matter, it simply is too soon after McCutcheon for them to take this step in what everyone by now recognizes as a juggernaut.

John Roberts Unwittingly Paves the Way for Eventual Wholesale Liberal Judicial Repeal of Statutes, Too

Chief Justice Roberts’ attempt to portray his decision in McCutcheon v. FEC as minimalist actually shows just how far from minimalist it is. According to the Chief Justice, no one should worry about the consequences of the Court’s decision because “there are multiple alternatives available” that would accomplish the Government’s asserted interest without, in the majority’s view, unnecessarily abridging First Amendment rights.  It would be a comforting thought if there were any truth to it.  But as Rick has pointed out, there is no chance that these alternatives will come to pass: Congress is not going to pass any new campaign finance laws (this Congress barely passes any laws at all, as the Chief surely knows), and the FEC is not going to strengthen its enforcement of existing laws (Republican commissioners on the FEC are no more in favor of campaign finance regulation than Republican members of Congress).

But what today’s Congress would do tells us little, if anything, about what the Congress that enacted the aggregate contribution limit would have done had it known that the Supreme Court would conclude that aggregate contribution limits are unconstitutional.  Would it have adopted one or more of the Chief’s proposed alternatives?  Quite possibly.  And that fact illustrates one of the most problematic, but also overlooked, aspects of judicial review—that it can produce disruptions to democratic preferences that are not constitutionally required.

— The False Minimalism of John Roberts, Brianne Gorod, Election Law Blog, Apr. 8

John Roberts’ Apr. 2 opinion in McCutcheon v. FEC is the opinion that keeps on giving, to liberal legal geeks, anyway. The opinion contains so many controversial (and, in my opinion, downright weird) statements–redefinitions of common English-language words and phrases, sophistic purported analogies, tautologies, and jaw-droppingly overt hypocrisy–that law professors, legal journalists, and hobbyist bloggers (like me!) no sooner finish writing about one statement in the opinion than we think of another aspect of the opinion that we want to write about.

I myself am pretty much McCutcheoned out by now, but before I take a break from it, I want to make two suggestions to progressives.  One is that they look ahead to when the current ideological majority no longer holds the majority–Ginsburg and Breyer are not the only justices who are aging, Ginsburg is not the only one who has health problems–and start selecting various statutes they dislike, and plan to challenge them as unconstitutional. As Gorod writes:

Judicial review is generally (and rightly) justified as an integral part of our constitutional system; it ensures that laws and regulations are consistent with our nation’s highest law.  In McCutcheon, the Court’s majority claims that the aggregate contribution limits cannot stand because they violate the First Amendment.  Whether one agrees with that conclusion or not (and as I and others have written, there are many reasons to disagree with it), most would find unobjectionable the general principle that laws that are inconsistent with the Constitution should not stand.  But as I have written elsewhere, judicial review often produces disruptions to democratic preferences that are not constitutionally required, and that is a much more significant problem.

Gorod, and others, detail a hallmark of Roberts’ strategy: Striking down as unconstitutional some key portion of an ideologically charged statute, and recommend possible substitute statutes and pronounce the ruling therefore minimalist although the substitutes could not be enacted in the current political climate and under current Citizens United-effectuated funding realities.  Roberts is fabricating constitutional grounds upon which to effectively repeal statutes enacted by earlier congresses. But by removing the institutional barriers to judicial repeal of statutes via semantics and gimmickry, he’s establishing precedent for progressives to do the same down the road.

There are a number of federal statutes I can think of that are excellent candidates for eventual liberal judicial repeal, now that the standard for judicial repeal has been so starkly and plainly lowered.  But one easy one is the Federal Arbitration Act, which, as written, is not unconstitutional, but which, as effectively rewritten by the 5-4 crowd, arguably is.  But there’s no longer any need for progressive justices, once they gain a majority, to limit themselves to striking down statutes that are, or are being interpreted in ways that make them, objectively or even arguably unconstitutional.  All that’s necessary going forward is a redefinition of a common word or phrase, and a transparently false analogy or two, and … voila!  What Roberts thinks is clever manipulation, I view as playing with fire.

Including backfire.

In another post, I’ll suggest that Congress or the SEC can prohibit publicly-traded corporations from making political expenditures (or, eventually, because that soon will become necessary, direct corporate campaign contributions) unless the corporation first gets approval from a majority of its shareholders.


Cross-posted at The Law of the Jungle.