Midterm Voting Has Begun — Trump, Grassley, Hatch, McConnell All Lie for Rapist-Wannabe

Republican wannabe rapist hides from FBI with help
from GOP senators and Trump.

Voting has begun for American servicemembers.

The federal Military and Overseas Voter Empowerment Act (MOVE) law mandates states and territories transmit ballots for federal elections "to absent uniformed services and overseas voters no later than 45 days before federal elections. Sept 24 is the latest date to send out absentee ballots.

Republican senators do not care, though they pretended to care two years ago.

GOP senators 237 days before 2016 election: "We can't confirm Merrick Garland because it's too close to presidential election"

GOP senators 47 days before 2018 election: "It's imperative we confirm Kavanaugh before the midterms"

— Ari Berman (@AriBerman) September 20, 2018

Voting has begun, the 2018 elections are happening now.

Republicans will do anything to get the felon Brett Kavanaugh onto the United States Supreme Court, though this piece of shit belongs in prison.

Senate Judicial Comm Chair Grassley Changes Rules to Jam Through Trump-nominated Judges

When Republicans cannot gain public support for their work in Congress, they change the rules.

On the confirmation of lifetime appointments of federal judges, Americans tune out of the grand experiment known as American democracy. The result is the Koch brothers and billionaires take over.

This is on Sen. Leahy and the craven Grassley:

From today's Des Moines Register on the U.S. Senate Committee of the Judiciary Chair Chuck Grassley:

[T]his week, Sen. Grassley pushed through the nomination of Michael Brennan to the 7th Circuit Federal Court of Appeals, and in doing so rejected decades of precedent, including his own promises.

Brennan’s nomination by Donald Trump ignored the bipartisan judicial selection process Wisconsin senators of both parties have observed since the 1970s.

And his hearing before the U.S. Senate Judiciary Committee, at the direction of Sen. Grassley, was scheduled without the consent of both of the state’s U.S. senators, commonly known as the blue-slip process in which senators indicate their support on a blue slip of paper. The blue-slip process that allows home-state senators input and approval on judicial nominees from their states is critical. Sen. Grassley has said so himself.

 In a Des Moines Register oped in April of 2015, Sen. Grassley complimented his Democratic counterpart, Sen. Patrick Leahy of Vermont, who used the blue-slip process even when those in his own party wanted it to end, Grassley wrote, “I appreciate the value of the blue-slip process and also intend to honor it.”

Republicans will say or do anything, period. When Democrats fail at the Senate level citing tradition over need as Sen Leahy did, the price is heavy.

From the The Leadership Conference on Civil and Hum­­­­an Rights calling for the rejection of Trump's newest radical-whack for the federal judiciary.

Dear Senator:

On behalf of The Leadership Conference on Civil and Hum­­­­an Rights, a coalition of more than 200 national organizations committed to promoting and protecting the civil and human rights of all persons in the United States, I write in strong opposition to the confirmation of Michael Brennan to the U.S. Court of Appeals for the Seventh Circuit.

Mr. Brennan’s nomination is objectionable both on process and substance grounds.  Now that a Republican occupies the White House, Chairman Grassley has reversed his own adherence to the century-old practice of only scheduling hearings for judicial nominees who have the support of both home-state senators.  If he were following the practice he required under the previous administration, Mr. Brennan would not move forward in the confirmation process because Senator Tammy Baldwin opposes this nominee and has not returned her blue slip.  Mr. Brennan has a far-right judicial philosophy that includes a disrespect for the bedrock principle of stare decisis.  In addition, he served for six years as the chair of Wisconsin Governor Scott Walker’s judicial selection committee, and he helped appoint several judicial extremists to the state supreme court.  His nomination should be rejected by the United States Senate.

Blue Slip Abuse:  The scheduling of a hearing for Mr. Brennan over the objection of home-state senator Tammy Baldwin is the latest example of Senator Grassley’s deeply troubling disregard of Senatorial courtesy and Senate tradition.[1]

Senator Baldwin has not returned her blue slip for Mr. Brennan, so he should not be granted a hearing.  This is now the second time during the Trump presidency that Chairman Grassley has abused the blue slip tradition in order to help President Trump attempt to install a conservative ideologue over the objection of a Democratic senator.  When he was chair of the Senate Judiciary Committee during the Obama presidency, Chairman Grassley did not grant a hearing to any nominee unless they had blue slips from both home-state senators.

The Constitution assigns to the Senate a separate and independent role from the president for lifetime appointments to the federal judiciary.  The first prong of the Senate’s role is to provide advice and the second is to determine whether to consent to a nominee’s confirmation.  The blue slip is a piece of paper that reflects the important role that home-state senators have played for the last century in providing advice to presidents about lifetime appointments in their state. If the chair of the Senate Judiciary Committee allows judicial nominees to advance without receiving the blue slips from home-state senators, no president will be compelled to listen to their advice.  A recent Congressional Research Service report identified only three judicial nominees who have been confirmed over blue slip objections.[2]

The blue slip practice is one of the critical checks and balances that helps maintain equilibrium among the branches of government.  Over the years, when the Senate majority placed partisan loyalty to the president over the Senate’s institutional interest in independently carrying out its constitutional responsibilities, the blue slip served as a vital corrective.  This institutional check has arguably never been more important than today, with a president who undermines the legitimacy of judges who disagree with his actions and who prioritizes loyalty to him over fealty to the law.

Chairman Grassley’s decision to give a hearing to Mr. Brennan, and in November to controversial Eighth Circuit nominee David Stras –  over the objection of a home-state senator –  is a rejection of Senate tradition and demonstrates his troubling double standard.  Here is what Chairman Grassley promised less than three years ago, during the presidency of Barack Obama:

For nearly a century, the chairman of the Senate Judiciary Committee has brought nominees up for committee consideration only after both home-state senators have signed and returned what’s known as a “blue slip.”  This tradition is designed to encourage outstanding nominees and consensus between the White House and home-state senators. Over the years, Judiciary Committee chairs of both parties have upheld a blue-slip process, including Sen. Patrick Leahy of Vermont, my immediate predecessor in chairing the committee, who steadfastly honored the tradition even as some in his own party called for its demise. I appreciate the value of the blue-slip process and also intend to honor it.[3]

Chairman Grassley’s strict observance of the blue slip tradition during the Obama presidency led to the denial of hearings and votes for 18 Obama judicial nominees.[4]  But now that President Trump is the one making judicial nominations, Chairman Grassley has abandoned his promise and a century of Senate tradition in order to jam through Trump’s far-right judicial nominees.  Chairman Grassley’s about-face should be condemned by senators of both parties because it will strip them of their constitutional role of providing advice and consent for judicial appointments in their states from this and all future administrations.  As Senator Hatch astutely observed in 2014: “Weakening or eliminating the blue slip process would sweep aside the last remaining check on the president’s judicial appointment power.  Anyone serious about the Senate’s ‘advice and consent’ role knows how disastrous such a move would be.”[5]

Ironically, Mr. Brennan himself has written in defense of Senate deference to home-state senators in the selection of federal judges.  Following Wisconsin Senator Ron Johnson’s election to the Senate in November 2010, he decided not to return a blue slip on Victoria Nourse, who had been nominated by President Obama to fill the vacancy for which Mr. Brennan has now been nominated.  In a 2011 op-ed entitled “Sen. Johnson only wants to have his say on Nourse nomination,” Mr. Brennan and his co-authors wrote:

There are now two senators from Wisconsin from different political parties, so to exclude Johnson and those citizens who voted for him would be a purely partisan move…. Why can’t Johnson, elected by the citizens of Wisconsin, participate in the selection of a judge for a Wisconsin seat on the 7th Circuit, as Kohl did?  Lady Justice is blindfolded, which represents her neutrality.  Neutrality comes from applying the same procedures to all.[6]

In light of the position he took in this op-ed, it is the height of hypocrisy for Mr. Brennan to have agreed to being nominated without the support of Senator Baldwin.  Senator Johnson’s obstruction of this judicial vacancy during the Obama presidency is why it has become the oldest circuit court vacancy in the United States; it has been vacant since January 2010.

Rejection of the Wisconsin Tradition:  Mr. Brennan’s nomination is an affront not only to the Senate’s constitutional advice-and-consent role as represented by the blue slip tradition, but also to the Wisconsin federal judicial selection tradition.  After Mr. Brennan was nominated in August 2017, Senator Baldwin declared: “President Trump has decided to go it alone and turn his back on a Wisconsin tradition of having a bipartisan process for nominating judges.  I am extremely troubled that President Trump has taken a partisan approach that disrespects our Wisconsin process.”[7]
The Wisconsin tradition, which goes back for decades, requires a bipartisan commission – whose members are chosen by the two Wisconsin senators – to solicit applications and recommend finalists for judicial vacancies to the senators, who then decide which names to send to the White House for consideration.  The commission’s charter requires that the commission only recommend applicants who receive votes from at least five of the commission’s six members.[8]  What is the purpose of the five-vote requirement?  Here is an explanation from Senator Johnson in 2015: “To ensure that the senators would nominate qualified judges rather than candidates who were on either extreme, the senators each selected three commissioners and required that any candidate recommended to the senators have the support of at least five commissioners.”[9]  Mr. Brennan received only four votes, thus making him ineligible for recommendation.  He is just too extreme.  Nonetheless, the Trump White House went forward with Mr. Brennan’s nomination.

Mr. Brennan’s own Senate questionnaire reveals that he was interviewed by the White House for this vacancy a month before the Wisconsin bipartisan commission even began accepting applications.[10]  The White House and Senator Grassley may claim there was meaningful consultation with Senator Baldwin about filling this vacancy, but that claim is belied by the timing of Mr. Brennan’s White House interview.

Scott Walker Appointee:  From 2011 to 2017, Mr. Brennan served as the chair of Governor Scott Walker’s Judicial Selection Advisory Committee.  In this position, to which he was appointed by Governor Walker, Mr. Brennan made recommendations to fill 75 state judgeships,[11] and the judges appointed by Governor Walker have been uniformly ultraconservative and out of the mainstream of legal thought.  Two state supreme court justices, Rebecca Bradley and Daniel Kelly, made particularly offensive comments.  In a 1992 newspaper column, now-Justice Bradley wrote: “One will be better off contracting AIDS than developing cancer, because those afflicted with the politically-correct disease will be getting all the funding.  How sad that the lives of degenerate drug addicts and queers are valued more than the innocent victims of more prevalent ailments.”[12]  She also wrote that conservative author Camille Paglia “legitimately suggested that women play a role in date rape,”[13] and that “Feminists whined about the ‘ordeal’ perjurer Anita Hill suffered under the male-dominated Senate judiciary committee, yet they vociferously supported members Herb Kohl over Susan Engeleiter and Paul Simon over Lynn Martin.”[14]  The other Walker supreme court appointee, Daniel Kelly, wrote in 2014: “Affirmative action and slavery differ, obviously, in significant ways.  But it’s more a question of degree than principle, for they both spring from the same taproot.  Neither can exist without the foundational principle that it is acceptable to force someone into an unwanted economic relationship.  Morally, and as a matter of law, they are the same.”[15]  Although the views of Justices Bradley and Kelly cannot be attributed directly

An article entitled “Scott Walker ties himself to the Federalist Society,” indicates that Governor Walker – much like President Trump – has outsourced the selection of judges to the far-right Federalist Society.[16]  The article noted that the two extreme judges appointed by Governor Walker to the state supreme court – Justices Bradley and Kelly – were past presidents of the Milwaukee Federalist Society chapter.  The article also noted that Mr. Brennan was the founder of the Milwaukee Federalist Society chapter, and he served as the chapter president from 1991 to 1999 and has been an advisor since 2000.  This out-of-the-mainstream legal organization represents a sliver of America’s legal profession – just 4 percent – yet over 94 percent of Trump’s circuit court nominees, and a significant number of his district court nominees, have been Federalist Society members.  In the article discussing Governor Walker’s reliance on Mr. Brennan and the Federalist Society in making state judicial selections, a prominent Milwaukee attorney, Craig Mastantuono, observed: “The Federalist Society is the developmental league for the takeover of the conservative movement in the judiciary in the United States and they’ve been quite effective in getting the far right into positions of power in disproportionate numbers in the state and federal judiciaries.  It’s an activist movement.  It’s an organized takeover.”[17]
Far-Right Judicial Philosophy:  Mr. Brennan believes that judges should dismiss the principle of precedent and stare decisis when it conflicts with their personal, ideological view of how the Constitution should be interpreted.  This view is antithetical to the rule of law and the clear obligations of lower court judges.  In a 2001 National Review op-ed, Mr. Brennan wrote: “If, after reexamination of a legal decision, a court concludes that the ruling was incorrect, stare decisis does not require that the rule of that case be followed.  To do so would violate a judge’s oath…. Stare decisis does not dictate slavish adherence to poorly reasoned precedent, nor does it transform originalist interpretation of a constitutional or statutory provision into judicial activism.  Bush-appointed judges cannot accurately be labeled as activists for reexamining and following only correct precedent.”[18]

Mr. Brennan’s theory is at odds with the bedrock principle of stare decisis, which the Supreme Court has said “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”[19]

In the same article, Mr. Brennan wrote: “The oath of a federal justice or judge at 28 U.S.C. § 453 makes express that his or her duty is first to the Constitution and the laws of the United States, not to other judges’ interpretation thereof.  That duty includes reexamination of precedent to ensure that the correct law is applied.”[20]

But this statute says nothing about what a judge should do if he or she believes that the law conflicts with other judges’ interpretation of it.  Rather, the statute merely sets forth the basic judicial oath of office in which a judge vows to perform all duties “under the Constitution and laws of the United States.”  Mr. Brennan’s interpretation of this statute is alarming and a clear indication of judicial activism.  He seems to believe that judges should only follow those precedents with which they agree, and that is a deeply troubling approach to legal analysis.

Mr. Brennan’s far-right judicial philosophy has also led him to praise Supreme Court decisions that limit Congress’s authority to help victims of domestic violence and discrimination victims.  In a 2001 Federalist Society blog post, he praised Supreme Court cases that struck down portions of the Violence Against Women Act and the Americans with Disabilities Act, and he wrote that “justices and judges faced with activist legislatures are not required to roll over in the name of judicial restraint.”[21]  In his tight embrace of limited government, Mr. Brennan also opined that “Legal reasoning that could result in truncating a small part of Congress’s power is not activism.  It is not second-guessing.  It is a check in the balance of the separation of powers.”[22]

In a 2005 article entitled “Are courts becoming too activist?,” Mr. Brennan discussed examples of judicial activism by the Wisconsin Supreme Court, and all the cases he cited involved plaintiffs who prevailed in tort cases or defendants who prevailed in criminal cases.[23]

Harsh Criminal Sentencing:  When he served as a Milwaukee County trial court judge, from 2000-2008, Mr. Brennan presided over a case in which four young African-American men, including the son of Congresswoman Gwen Moore, were charged with vandalism for letting the air out of the tires on some vans that had been rented by the Republican Party on election day in 2004.  The Milwaukee District Attorney reached a plea agreement with the defendants, who pled to a misdemeanor in return for a recommended sentence of probation.  Mr. Brennan rejected the plea agreement and imposed a jail sentence of six months, which one commentator called “one of the most blatant demonstrations of racial inequality in justice in Milwaukee County.”[24]

Mr. Brennan’s draconian approach to criminal sentencing can also be seen in his work from 1998-1999 while serving as staff counsel to the Wisconsin Criminal Penalties Committee, a position to which he was appointed by Governor Tommy Thompson.  The committee rewrote Wisconsin’s criminal sentencing law, and, as explained by Mr. Brennan: “Parole was abolished” and “The act also increased penalty ranges 50 percent for all felonies.”[25]  At the time he worked on this Wisconsin Criminal Penalties Committee, Mr. Brennan also served as an Assistant District Attorney.

Partisan Activities: Mr. Brennan has been a Republican Party activist for many years.  He has not just made political contributions, though he has certainly made his share: he has contributed over $10,000 to Republican politicians, including a contribution of $500 to Chairman Grassley in 2016.  He has also served as a fundraiser.  He acknowledged on his Senate questionnaire that he has served as a fundraiser for Ron Johnson for Senate in 2010 and 2016, and for Tommy Thompson in 2012, among others.  And he served on the finance committee of the Wisconsin State Republican Party from 1992-1995 and from 1998-1999.  If confirmed, Mr. Brennan would have to consider recusing himself in any case involving the Republican Party or Republican officials due to his partisan bias.
For the foregoing reasons, The Leadership Conference urges you to reject the nomination of Michael Brennan to the U.S. Court of Appeals for the Seventh Circuit.  Thank you for your consideration of our views.  If you have any questions or would like to discuss this matter further, please contact Mike Zubrensky, Chief Counsel and Legal Director, at (202) 466-3311.

Sincerely,
Vanita Gupta
President and  CEO

[1]https://medium.com/@civilrightsorg/top-ten-ways-grassley-is-choosing-politics-over-principle-in-judicial-confirmations-41ffe34e59bf.
[2]https://fas.org/sgp/crs/misc/R44975.pdf.
[3]https://www.desmoinesregister.com/story/opinion/columnists/iowa-view/2015/04/15/working-secure-iowas-judicial-legacy/25801515/.
[4]https://www.acslaw.org/acsblog/10-things-you-need-to-know-about-blue-slips.
[5]http://thehill.com/opinion/op-ed/203226-protect-the-senates-important-advice-and-consent-role.
[6]http://archive.jsonline.com/news/opinion/126042043.html/.
[7]https://www.jsonline.com/story/news/politics/2017/08/04/donald-trump-appoints-gov-scott-walker-ally-federal-7th-circuit-court-appeals/539442001/.
[8]https://www.wisbar.org/aboutus/governmentrelations/Documents/Wisconsin%20Judicial%20Nominations%20Commission%20Charter%202017.pdf.
[9]https://www.ronjohnson.senate.gov/public/index.cfm/2015/5/johnson-contacts-white-house-regarding-seventh-circuit-court-of-appeals-nomination.
[10]https://www.judiciary.senate.gov/imo/media/doc/Brennan%20SJQ.pdf.
[11]Id.
[12]http://host.madison.com/ct/news/local/govt-and-politics/rebecca-bradley-called-gay-people-degenerates-queers-in-college-newspaper/article_7b92ace5-d4d2-54af-a2de-54860858be47.html.
[13]http://host.madison.com/ct/news/local/govt-and-politics/rebecca-bradley-in-camille-paglia-legitimately-suggested-women-play-role/article_28cb63fe-d647-5ce3-b558-3497c8f6f418.html.
[14]Id.
[15]https://www.dailykos.com/stories/2016/7/22/1551102/-Judge-says-affirmative-action-and-slavery-are-morally-the-same-is-appointed-to-WI-Supreme-Court.
[16]http://host.madison.com/wsj/news/local/govt-and-politics/scott-walker-ties-himself-to-the-federalist-society/article_15b2e76a-5229-5ab1-b785-5e6c39087671.html.
[17]Id.
[18]https://www.afj.org/wp-content/uploads/2018/01/Brennan-QA-Clip-170-1.pdf.
[19]Kimble v. Marvel Enterprises, 135 S. Ct. 2401, 2409 (2005).
[20]https://www.afj.org/wp-content/uploads/2018/01/Brennan-QA-Clip-170-1.pdf.
[21]https://fedsoc.org/commentary/publications/hot-topics-judicial-activism.
[22]Id.
[23]https://www.afj.org/wp-content/uploads/2018/01/Are-Courts-Becoming-Too-Activist.pdf.
[24]https://afj.org/wp-content/uploads/2017/10/ZIEGLER_-WMC-ESTABLISH-NEW-LOW-IN-COURT-ETHICS.pdf.
[25]https://www.afj.org/wp-content/uploads/2018/01/Brennan-QA-Clip-159.pdf.

Old Bigot McCain Rushes to Aid of White Supremacist Sessions

 Attorney General Jefferson Beauregard Sessions III from Alabama
sees defending Donald Trump as mission of Justice Department

Sen. John McCain (R-Arizona) heard enough of the uppity woman from California, Sen. Kamala Harris, pummeling Jefferson Beauregard Sessions III from Alabama and challenging his "honor."

Harris had the gall to disorder the racist, former senator now serving as United States Attorney General, making the southern man, "nervous."

At a hearing of the U.S. Senate Select Committee on Intelligence, Sessions was questioned by Sen. Harris who persisted in examining Sessions' "batter-fried nonsense," (Pierce, Esquire), that his refusal to answer questions about President Trump was justified by the long-standing, secret DoJ policy that the attorney general could not cite because it does not exist.

Sen. Harris was having none of Sessions' making up policy, and her questioning made Sessions look ridiculous.

But the old, bigoted Sen. McCain from Arizona who in 1983 voted against Martin Luther King, Jr. Day could not watch his racist, "I may have said something about the NAACP being un-American or Communist, but I meant no harm by it," friend fold on national television, certainly not under examination by a woman, (Mal Contends), (Washington Post).

Sessions was denied a federal judgeship in 1986 by the Republican-controlled Senate Committee on the Judiciary, which voted down Sessions 10-8 for being "unfit," (Phillips, Washington Post, New York Times).

No problem for McCain. McCain championed the Sessions nomination to attorney general this year, and is now running political interference for the old bastard as attorney general.

Notes Jonathan Chait, (New York Magazine):

Is the policy is written down, she asked? 'I think so,' replied Sessions — an answer lacking the level of legal precision one might hope to get from the federal government’s top attorney. Harris tried to drill down into just how Sessions learned about this policy. Sessions said he had followed a 'principle,' which apparently is more of an oral tradition or something. That’s when John McCain, off-camera, jumped in to complain about Harris’s questioning. 

It appears McCain is following his own long-standing, secret policy with respect to coming to the aid of racists.

2017 is not 1986. It's starting to look like 1956 when being a racist was not a disqualification for high government positions.

Over 350 Law Professors Urge Senators to Fulfill Constitutional Duty

President Obama is vetting nominees for the vacancy on the U.S. Supreme Court, and the Republican Senate says it will not consider any nominee the president sends to the Senate.

Law professors across the nation have signed a letter calling for the Republican senators to "perform their constitutional duty."

The letter (below) is signed by 12 professors from the University of Wisconsin Law School and Marquette University Law School.

The petition was organized by the Alliance for Justice (AFJ). The AFJ's press release and letter to Senate leaders is reproduced below.

Washington, D.C.— In response to Republican promises to refuse to consider any Supreme Court nominee this year, 356 law professors and legal scholars have written a letter to the Senate leadership of both parties urging them “to fulfill your constitutional duty to give President Obama’s Supreme Court nominee a prompt and fair hearing and a timely vote.”

The professors, including some of the top constitutional experts in the country, such as Charles Ogletree, Kenji Yoshino, and Laurence Tribe, counter arguments made by Republican senators that the Senate has no obligation to consider the president’s nominee in an election year. The professors declare that,

“This preemptive abdication of duty is contrary to the process the framers envisioned in Article II, and threatens to diminish the integrity of our democratic institutions and the functioning of our constitutional government.

President Obama was elected to a four-year term in 2012. According to the Constitution, that term has more than 300 days remaining. There is no exception to the Constitution holding that the president lacks the authority or duty to appoint justices to the Supreme Court because he is in the last year of his presidency. In fact, six justices have been confirmed in presidential-election years since 1900, including Louis Brandeis, Benjamin Cardozo, and Republican-appointee Anthony Kennedy, who was confirmed by a Democratically-controlled Senate during President Ronald Reagan’s last year in office.”

The scholars also share the concern of many legal observers who fear the consequences of a deeply divided and incomplete Court during a period of significant constitutional uncertainty. They conclude by declaring that, “The Senate must not defeat the intention of the Framers by failing to perform its constitutional duty. The Senate Judiciary Committee should hold a prompt and fair hearing and the full Senate should hold a timely vote on the president’s nominee.”

The letter is reproduced directly below:

Hon. Mitch McConnell                      Hon. Charles Grassley
U.S. Senate Majority Leader            Chair, U.S. Senate Committee on the Judiciary
317 Russell Senate Office Building  135 Hart Senate Office Building
Washington, DC 20510                     Washington, DC 20510

Hon. Harry Reid                             Hon. Patrick Leahy
U.S. Senate Minority Leader          Ranking Member, Committee on the Judiciary
522 Hart Senate Office Building    437 Russell Senate Office Building
Washington, DC 20510                  Washington, DC 20510

Dear Majority Leader McConnell, Judiciary Committee Chairman Charles Grassley, Minority Leader Harry Reid, and Judiciary Committee Ranking Member Patrick Leahy: 

As scholars deeply committed to the fair administration of justice, upholding the rule of law, and educating future generations of the legal profession, the undersigned professors of law urge you to fulfill your constitutional duty to give President Barack Obama’s Supreme Court nominee a prompt and fair hearing and a timely vote.

The Senate’s obligation in this circumstance is clear. Under Article II of the Constitution, the president “shall appoint . . . judges to the Supreme Court,” and the Senate’s role is to provide “advice and consent.” Yet before the president has even made a nomination to fill the current vacancy, a number of senators have announced that they will not perform their constitutional duty. Instead, they plan to withhold advice and consent until the next president is sworn in nearly a year from now. This preemptive abdication of duty is contrary to the process the framers envisioned in Article II, and threatens to diminish the integrity of our democratic institutions and the functioning of our constitutional government.

President Obama was elected to a four-year term in 2012. According to the Constitution, that term has more than 300 days remaining. There is no exception to the Constitution holding that the president lacks the authority or duty to appoint justices to the Supreme Court because he is in the last year of his presidency. In fact, six justices have been confirmed in presidential-election years since 1900, including Louis Brandeis, Benjamin Cardozo, and Republican-appointee Anthony Kennedy, who was confirmed by a Democratically-controlled Senate during President Ronald Reagan’s last year in office.

A long-term vacancy jeopardizes the Supreme Court’s ability to resolve disputed questions of federal law, causing uncertainty and hampering the administration of justice across the country. Typically, the Supreme Court resolves disagreement among the lower courts to establish national uniformity on important legal issues. But the Court fails in this essential function when eight sitting justices divide evenly 4-4, leaving the matter undecided or forcing reconsideration of it when the Court returns to full strength. If the Senate refuses to consider President Obama’s nominee, the potential for deadlock on major constitutional and statutory issues will persist for at least the better part of two terms.

The Senate must not defeat the intention of the Framers by failing to perform its constitutional duty. The Senate Judiciary Committee should hold a prompt and fair hearing and the full Senate should hold a timely vote on the president’s nominee.

Sincerely 1

The Undersigned

Cc: Members of the United States Senate

1 Organizational affiliation for all signatories is included for identification purposes only; individuals represent only themselves, not the institutions where they are teaching or other organizations in which they are active.

William Andreen         University of Alabama School of Law
Norman J. Singer        University of Alabama School of Law
Tiffany Murphy           University of Arkansas School of Law
Cyndi Nance               University of Arkansas School of Law
Susan Schneider        University of Arkansas School of Law
Paul Bender      Arizona State University, Sandra Day O'Connor College of Law
Myles Lynk        Arizona State University, Sandra Day O'Connor College of Law
Michal Belknap          California Western School of Law
Jessica Fink               California Western School of Law
Glenn C. Smith          California Western School of Law
Jan Stiglitz                 California Western School of Law
Marisa Cianciarulo     Chapman University School of Law
Theodore Seto             Loyola Law School, Los Angeles
Barbara Babcock        Stanford Law School
Mark G. Kelman         Stanford Law School
Deborah Rhode          Stanford Law School
Marjorie Cohn             Thomas Jefferson School of Law
Julie Greenberg          Thomas Jefferson School of Law
Richard Winchester     Thomas Jefferson School of Law
Herma Kay                   UC Berkeley School of Law
Rose Cuison Villazor    UC Davis School of Law
Richard Frank               UC Davis School of Law
Lesley McAllister         UC Davis School of Law
Leticia Saucedo             UC Davis School of Law
Carol Izumi                    UC Hastings College of the Law
Alejandro Camacho       UC Irvine School of Law
Erwin Chemerinsky       UC Irvine School of Law
Catherine Fisk                UC Irvine School of Law
Carrie Menkel-Meadow UC Irvine School of Law
Richard Abel                   UCLA School of Law
Luz Herrera                     UCLA School of Law
Christine Littleton           UCLA School of Law
Joanna Schwartz             UCLA School of Law
Christina Chong               University of San Francisco School of Law
Tim Iglesias                      University of San Francisco School of Law
Richard Sakai                   University of San Francisco School of Law
Carol Wilson                    University of San Francisco School of Law
Rebecca Brown                University of Southern California Gould School of Law
Ariela J. Gross                  University of Southern California Gould School of Law
Gregory C. Keating          University of Southern California Gould School of Law
Raquel Aldana                  University of the Pacific, McGeorge School of Law
Michael S. Mireles           University of the Pacific, McGeorge School of Law
John Cary Sims                University of the Pacific, McGeorge School of Law
Neil Cogan                       Whittier Law School
KK DuVivier                    University of Denver Sturm College of Law
Loftus Becker                   University of Connecticut School of Law
Sara Bronin                      University of Connecticut School of Law
Timothy Everett               University of Connecticut School of Law
Stephen Wizner               Yale Law School
Nancy Abramowitz           American University Washington College of Law
Wil Burns                          American University Washington College of Law
Brandon Butler                  American University Washington College of Law
Michael Carroll                 American University Washington College of Law
Angela Davis                     American University Washington College of Law
Christine Farley                 American University Washington College of Law
Sean Flynn                         American University Washington College of Law
John Heywood                   American University Washington College of Law
David Hunter                     American University Washington College of Law
Deena Hurwitz                   American University Washington College of Law
Peter Jaszi                          American University Washington College of Law
Elizabeth Keith                   American University Washington College of Law
Elliott Milstein                    American University Washington College of Law
Jennifer Mueller                  American University Washington College of Law
Victoria Phillips                  American University Washington College of Law
Jamie Raskin                       American University Washington College of Law
Ira P. Robbins                      American University Washington College of Law
Herman Schwartz                American University Washington College of Law
William Snape, III               American University Washington College of Law
William Yeomans                American University Washington College of Law
Hope Babcock                       Georgetown University Law Center
Peter Edelman                       Georgetown University Law Center
Susan Ross                            Georgetown University Law Center
Phyllis Goldfarb                   The George Washington University Law School
Cynthia Lee                          The George Washington University Law School
Susan Goldberg                    Widener University School of Law
David Hodas                         Widener University School of Law
Serena Williams                    Widener University School of Law
Rachel Deming                    Barry University Dwayne O. Andreas School of Law
Markita D. Cooper             Florida A and M University College of Law
William D. Henslee            Florida A and M University College of Law
Nise Nekheba                     Florida A and M University College of Law
Kalyani Robbins                 Florida International University College of Law
Kathy Cerminara                     Nova Southeastern University Law Center
Olympia Duhart                       Nova Southeastern University Law Center
Michael Flynn                          Nova Southeastern University Law Center
Joseph D. Harbaugh                Nova Southeastern University Law Center
Joel Mintz                                Nova Southeastern University Law Center
Stuart Freeman                         Stetson University College of Law
Rebecca Trammell                   Stetson University College of Law
Mary Jane Angelo                         University of Florida, Levin College of Law
George Dawson                             University of Florida, Levin College of Law
Christine Klein                               University of Florida, Levin College of Law
David Abraham                              University of Miami School of Law
Elizabeth Iglesias                            University of Miami School of Law
Helen de Haven                               Atlanta's John Marshall Law School
Martha Albertson Fineman             Emory University School of Law
Johan van der Vyver                        Emory University School of Law
Ellen Taylor                                     Georgia State University College of Law
Suzianne Painter-Thorne                  Mercer University School of Law
David T. Ritchie                               Mercer University School of Law
Scott Titshaw                                    Mercer University School of Law
Ronald Brown:     
- The University of Hawaii at Manoa William S. Richardson School of Law
Virginia E Hench: 
- The University of Hawaii at Manoa William S.Richardson School of Law
Charles Lawrence:
- The University of Hawaii at Manoa William S. Richardson School of Law
Mari Matsuda:       
- The University of Hawaii at Manoa William S. Richardson School of Law
Andrea Charlow                  Drake University Law School
Matthew Dore                     Drake University Law School
Mark Kende                        Drake University Law School
David McCord                    Drake University Law School
Nancy Hauserman               University of Iowa College of Law
Linda Kerber                       University of Iowa College of Law
James Macdonald                University of Idaho College of Law
Joan Steinman                     Chicago-Kent College of Law
Leonard Cavise                    DePaul University College of Law
Sumi Cho                             DePaul University College of Law
Ted Donner                          Loyola University Chicago School of Law
Allen Shoenberger               Loyola University Chicago School of Law
Marc Falkoff                        Northern Illinois University College of Law
Nancy C. Loeb                     Northwestern University School of Law
Sylvia Neil                           Northwestern University School of Law
Christopher T. Sheean          Northwestern University School of Law
Cliff Zimmerman                  Northwestern University School of Law
Patricia McCubbin                Southern Illinois University School of Law
Michael G. Heyman               The John Marshall Law School
Anthony Niedwiecki              The John Marshall Law School
Albert Alschuler                    University of Chicago Law School
Jennifer Drobac                      Indiana University Maurer School of Law
Carwina Weng                        Indiana University Maurer School of Law
Florence Roisman                  Indiana University School of Law-Indianapolis
Joseph Bauer                           Notre Dame Law School
Rosalie Levinson                      Valparaiso University School of Law
Joyce Mccray Pearson              Kansas University School of Law
William Westerbeke                  Kansas University School of Law
Sharlene Boltz           Northern Kentucky University Salmon P. Chase College of Law
Judith Fischer             University of Louisville, Louis D. Brandeis School of Law
Ariana Levison           University of Louisville, Louis D. Brandeis School of Law
Cedric Powell             University of Louisville, Louis D. Brandeis School of Law
Enid Trucios-Haynes  University of Louisville, Louis D. Brandeis School of Law
Lucy S. McGough                   Louisiana State University Law Center
M Isabel Medina                     Loyola University New Orleans College of Law
Paul Barron                             Tulane University Law School
Mark Brodin                           Boston College Law School
Zygmunt Plater                       Boston College Law School
Ed Richards                            Boston College Law School
James Fleming                       Boston University School of Law
Linda McClain                       Boston University School of Law
Elizabeth Bartholet                Harvard Law School
Harris Freeman                      Harvard Law School
Daniel Halperin                      Harvard Law School
Charles J. Ogletree                 Harvard Law School
Richard Reibstein                   Harvard Law School
Laurence H. Tribe                   Harvard Law School
Lucie White                             Harvard Law School
Libby Adler                             Northeastern University School of Law
Kathleen Engel                      Suffolk University Law School
Christopher Gibson               Suffolk University Law School
Ilene Seidman                        Suffolk University Law School
David Yamada                       Suffolk University Law School
Andrew Leong                       University of Massachusetts School of Law
Matthew Charity                     Western New England University School of Law
Margaret E. Johnson               University of Baltimore School of Law
Douglas L. Colbert                  University of Maryland School of Law
Marley Weiss                           University of Maryland School of Law
Peter Pitegoff                           University of Maine School of Law
Sarah Schindler                        University of Maine School of Law
Hannah Brenner                        Michigan State University College of Law
Melanie Jacobs                          Michigan State University College of Law
Jacqueline Hand                            University of Detroit Mercy School of Law
Alicia Alvarez                               University of Michigan Law School
Robert Hirshon                              University of Michigan Law School
Theodore J. St. Antoine                 University of Michigan Law School
David M. Uhlmann                        University of Michigan Law School
Christine Ver Ploeg                        Mitchell Hamline School of Law
Beverly Balos                                 University of Minnesota Law School
Mary Fellows                                  University of Minnesota Law School
Ed Butterfoss                                  William Mitchell College of Law
Sarah Deer                                      William Mitchell College of Law
Marie Failinger                               William Mitchell College of Law
Jada Fehn                                        William Mitchell College of Law
Derik Fettig                                     William Mitchell College of Law
Jim Hilbert                                      William Mitchell College of Law
Raleigh Levine                                William Mitchell College of Law
Denise Roy                                      William Mitchell College of Law
Anthony Winer                                William Mitchell College of Law
Jasmine Abdel-khalik                 University of Missouri–Kansas City School of Law
Stanley Foreman                         University of Missouri–Kansas City School of Law
Nancy Levit                                 University of Missouri–Kansas City School of Law
Norman Plate                               University of Missouri–Kansas City School of Law
Irma Russell                                 University of Missouri–Kansas City School of Law
Daniel Weddle                              University of Missouri–Kansas City School of Law
Barbara Wilson                             University of Missouri–Kansas City School of Law
Jon Baris                                       Washington University in St. Louis School of Law
Kelly Dineen                                 Washington University in St. Louis School of Law
Robert Gatter                                 Washington University in St. Louis School of Law
William Johnson                            Washington University in St. Louis School of Law
Peter Joy                                        Washington University in St. Louis School of Law
Daniel Mandelker                          Washington University in St. Louis School of Law
Elizabeth Pendo                              Washington University in St. Louis School of Law
Karen Tokarz                                  Washington University in St. Louis School of Law
Sidney Watson                                Washington University in St. Louis School of Law
Judith Johnson                                   Mississippi College School of Law
John Bradley                                      University of Mississippi School of Law
Bari Burke                                          University of Montana School of Law
Katharine Bartlett                                     Duke Law School
Eric Fink                                                   Duke Law School
Michelle Nowlin                                       Duke Law School
Jane Wettach                                             Duke Law School
Maxine Eichner                                        University of North Carolina School of Law
Deborah M. Weissman                             University of North Carolina School of Law
Margaret Taylor                                        Wake Forest University School of Law
James Grijalva                                           University of North Dakota School of Law
Christine Venter                                         University of North Dakota School of Law
Susan Apel                                              University of New Hampshire School of Law
John Greabe                                            University of New Hampshire School of Law
Lucy Hodder                                           University of New Hampshire School of Law
Ann Freedman                                            Rutgers School of Law–Camden
Phillip Harvey                                             Rutgers School of Law–Newark
Alan Hyde                                                   Rutgers School of Law–Newark
David Troutt                                                Rutgers School of Law–Newark
Sanford Gaines                                            University of New Mexico School of Law
Margaret Montoya                                       University of New Mexico School of Law
Mary Berkheiser   William S. Boyd School of Law, University of Nevada, Las Vegas
Sara Gordon          William S. Boyd School of Law, University of Nevada, Las Vegas
Ann McGinley      William S. Boyd School of Law, University of Nevada, Las Vegas
Garcia Ruben        William S. Boyd School of Law, University of Nevada, Las Vegas
Keith Hitokawa                                Albany Law School
Nancy Ota                                        Albany Law School
David Rudenstine                             Benjamin N. Cardozo School of Law
Ellen Yaroshefsky                             Benjamin N. Cardozo School of Law
Elizabeth Schneider                          Brooklyn Law School
Beryl Blaustone                               City University of New York School of Law
Rebecca Bratspies                           City University of New York School of Law
Susan Bryant                                   City University of New York School of Law
Frank Deale                                     City University of New York School of Law
Pamela Edwards                              City University of New York School of Law
Raquel Gabriel                                 City University of New York School of Law
Julie Goldscheid                               City University of New York School of Law
Natalie Gomez-Velez                       City University of New York School of Law
Victor Goode                                    City University of New York School of Law
K. Babe Howell                                City University of New York School of Law
Stephen Loffredo                              City University of New York School of Law
Andrea McArdle                               City University of New York School of Law
Sherry Ramsey                                  City University of New York School of Law
Allie Robbins                                    City University of New York School of Law
Franklin Siegel                                 City University of New York School of Law
Nicole Smith                                     City University of New York School of Law
Steven Zeidman                                City University of New York School of Law
Stephen Zorn                                     City University of New York School of Law
Michael W. Doyle                                  Columbia Law School
Subha Narasimhan                                 Columbia Law School
Cynthia Bowman                                  Cornell University Law School
Angela Cornell                                      Cornell University Law School
Robert A. Hillman                                 Cornell University Law School
Mitchell Lassar                                      Cornell University Law School
Beth Lyon                                              Cornell University Law School
Martin Flaherty                                       Fordham University School of Law
Rachel Vorspan                                       Fordham University School of Law
Hillary Exter                                           Fordham University School of Law
Jennifer Gordon                                      Fordham University School of Law
Susan H. Joffe                                       Hofstra University Law School
Arthur Leonard                                     New York University School of Law
Carlin Meyer                                         New York University School of Law
Edward Purcell, jr.                                New York University School of Law
Kenji Yoshino                                      New York University School of Law
Margot Pollans                                       Pace Law School
Ann Powers                                            Pace Law School
David Driesen                                          Syracuse University College of Law
Paula Johnson                                           Syracuse University College of Law
Robert Rabin                                             Syracuse University College of Law
Eileen Kaufman                                          Touro Law Center, NY Law School
Richard Klein                                             Touro Law Center, NY Law School
Lucinda Finley                                           University at Buffalo Law School
Martha T. McCluskey                                    University at Buffalo Law School
Susan Looper-Friedman                                Capital University Law School
Roberta Mitchell                                            Capital University Law School
Juscelino Colares                                           Case Western Reserve University
Robert Strassfeld                                           Case Western Reserve University
April Cherry               Cleveland State University Cleveland-Marshall College of Law
Dena Davis                Cleveland State University Cleveland-Marshall College of Law
James Lawrence                 The Ohio State University Moritz College of Law
Joseph Stulberg                   The Ohio State University Moritz College of Law
Dana Cole                             University of Akron School of Law
Howard Friedman                  University of Akron School of Law
Brant Lee                                University of Akron School of Law
Joseph Slater                           University of Akron School of Law
Verna Williams                       University of Cincinnati College of Law
Shannon Roesler                      Oklahoma City University School of Law
Marla Mansfield                      University of Tulsa College of Law
Paula Abrams                         Lewis and Clark Law School
Michael C. Blumm                 Lewis and Clark Law School
Kathy Hessler                        Lewis and Clark Law School
Ofer Raban                            University of Oregon School of Law
Dominick Vetri                       University of Oregon School of Law
Gilbert Paul Carrasco                Willamette University College of Law
Tabatha Abu El-Haj     Drexel University Thomas R. Kline School of Law
Anil Kalhan                  Drexel University Thomas R. Kline School of Law
Rona Kitchen                      Duquesne University School of Law
Victor Romero                    Pennsylvania State University
Craig Green                       Temple University Beasley School of Law
Nancy Knauer                   Temple University Beasley School of Law
Robert J. Reinstein            Temple University Beasley School of Law
David Sonenshein             Temple University Beasley School of Law
Howard F. Chang                University of Pennsylvania Law School
Robert N. Gorman               University of Pennsylvania Law School
Sarah Paoletti                       University of Pennsylvania Law School
Michael J. Yelnosky              Roger Williams University School of Law
Daniel Kiel                         University of Memphis Cecil C. Humphreys School of Law
Fran Ansley                         University of Tennessee College of Law
Ellen Wright Clayton          Vanderbilt University Law School
Terry Maroney                    Vanderbilt University Law School
Patricia Wilson                       Baylor University Law School
Mark E. Steiner                     South Texas College of Law
John S. Lowe                    Southern Methodist University Dedman School of Law
Jenia Turner                      Southern Methodist University Dedman School of Law
John Teeter                       St. Mary's School of Law
Michael Green                  Texas A and M University School of Law
Jensie L. Anderson              University of Utah S.J. Quinney College of Law
Alan Clarke                         University of Utah S.J. Quinney College of Law
Jorge Contreras                    University of Utah S.J. Quinney College of Law
Laura Kessler                      University of Utah S.J. Quinney College of Law
Clifford J. Rosky                  University of Utah S.J. Quinney College of Law
John Ruple                            University of Utah S.J. Quinney College of Law
Linda Smith                           University of Utah S.J. Quinney College of Law
Debora Threedy                     University of Utah S.J. Quinney College of Law
Ann C. Hodges                       University of Richmond School of Law
Darryl Brown                           University of Virginia School of Law
Jonathan Cannon                     University of Virginia School of Law
Stanley Henderson                   University of Virginia School of Law
Corinna Lain                            University of Virginia School of Law
Mildred Wigfall Robinson       University of Virginia School of Law
J.H. (Rip) Verkerke                   University of Virginia School of Law
Thomas R. White, 3rd               University of Virginia School of Law
Liz Ryan Cole                           Vermont Law School
Stephanie Farrior                      Vermont Law School
Jessica Scott                              Vermont Law School
Joan Vogel                                 Vermont Law School
Mary Pat Treuthart                       Gonzaga University School of Law
Steven Bender                              Seattle University School of Law
Carmen Gonzalez                         Seattle University School of Law
Henry W. McGee, Jr.                    Seattle University School of Law
Madeline Kass                               Thomas Jefferson School of Law
Robert H. Aronson                          University of Washington School of Law
Susan Bay                                        Marquette University Law School
Ed Fallone                                        Marquette University Law School
Jay Gold                                           Marquette University Law School
Harvey Kurtz                                    Marquette University Law School
Lisa Mazzie                                       Marquette University Law School
Richard Reider                                  Marquette University Law School
Paul Secunda                                     Marquette University Law School
Craig Fieschko                                   University of Wisconsin Law School
Ted Finman                                         University of Wisconsin Law School
Margaret Maroney                              University of Wisconsin Law School
Thomas Mitchell                                University of Wisconsin Law School
Alan Jay Weisbard                             University of Wisconsin Law School
David Janes                                        West Virginia University College of Law
Michael Duff                                      University of Wyoming College of Law