The Democratic Candidates Need to Talk About the Supreme Court

By Jeffrey Toobin, The New Yorker

14 January 20

he Democratic Presidential candidates will soon be compelled to talk about what may be the most important issue in the 2020 election: the future of both the Supreme Court and the lower federal courts. A coalition of civil-rights groups has scheduled a Presidential forum for February 8th, in New Hampshire, to address judicial issues, with a “particular focus” on reproductive rights. It’s about time.

The Democratic debates so far have featured detailed discussions of the candidates’ competing health-care plans—none of which is likely to become law in any form close to what’s so far been described. (It’s worth noting that, after similar health-care debates between Barack Obama and Hillary Clinton in 2008, Obama’s Affordable Care Act, by the time it passed in Congress, looked more like Clinton’s campaign plan than Obama’s.) But one thing we know for sure is that, if a Democrat wins the White House this year, he or she will be responsible for appointing federal judges, including a few likely vacancies on the Supreme Court.

Donald Trump understood the importance of federal judicial appointments, both as a political play to his base and as a substantive legacy for his Presidency. He announced prospective Supreme Court nominees while he was a candidate—a good idea for a Democrat, by the way—and has since worked closely with Mitch McConnell, the Senate Majority Leader, to fill two Supreme Court vacancies and scores of lower-court judgeships, all of which come with life tenure. Trump moved the Supreme Court significantly to the right by replacing Anthony Kennedy with Brett Kavanaugh, and he has named fifty federal appeals-court judges in three years; Obama named only fifty-five in eight years.

This is a formidable legacy for Trump and McConnell, but it’s not the end of the story. Most of the judges that Trump has replaced were Republican appointees, and McConnell has been so efficient at filling vacancies that there are relatively few remaining for Trump’s final year. If a Democrat wins the election, he or she may well have a chance to replace the two senior Democratic appointees on the Supreme Court, Ruth Bader Ginsburg and Stephen Breyer, who are both in their eighties, and also, perhaps, Clarence Thomas, who is seventy-one.

With a major abortion case already on the Court’s docket this year, and another crucial case, testing the constitutionality of the Affordable Care Act, potentially on its way to the Justices, the subject of the forum could not be more pressing. But the Supreme Court has barely come up in previous debates, and several candidates have scarcely talked about it at all. This is especially true of the current front-runner, the former Vice-President Joe Biden, who probably has more experience with judicial nominations than any candidate who has ever sought the Presidency.

Biden’s reticence on the subject has a clear basis. His long tenure on the Senate Judiciary Committee included serving as the chair during Thomas’s epic confirmation hearings, in 1991. The verdict of history on Biden’s performance at that moment has been harsh. He cut short a full examination of Anita Hill’s charges of sexual misconduct by Thomas, at a time when several Democratic and Republican votes in the Senate were still in play. Thomas was confirmed by fifty-two votes to forty-eight. If Biden had allowed more witnesses to testify, the result might have gone the other way, and the nation might have been spared Thomas’s appalling record on the Court. Especially now, in the #MeToo era, it’s understandable why Biden has steered away from the subject.

But Biden was also the chair of the committee in 1987, when the Senate voted down the nomination of Robert Bork. In that instance, Biden’s performance was nothing short of heroic; he led the opposition of a nominee who, if he had had a chance to serve on the Court, would have transformed it. By leading the fight against Bork—and thereby forcing President Ronald Reagan to pick a more moderate nominee, who ended up being Kennedy—Biden can claim a major and honorable legacy on the Court. If he had failed to stop Bork, there is little doubt, for example, that the Court would have overturned Roe v. Wade and banned affirmative action.

The New Hampshire forum, which will take place just three days before the New Hampshire primary—and which is sponsored by the Demand Justice Initiative, the Center for Reproductive Rights, and NARAL—should force the candidates to address these critical issues. Do they have litmus tests for judicial nominees? Who are their judicial heroes? What if the Senate is still in Republican hands next year, and McConnell is still in charge? If that’s the case, how would a new Democratic President push through his or her judicial nominees? How big a priority will that be? The answers to those questions may not be clear after this Presidential forum, but at least the candidates will finally be asked the right questions.

Trump Still Wants to Take Away Your Healthcare - but After the Election

By Susan Rinkunas, VICE

13 January 20

The Department of Justice sees no need for the Supreme Court to hear a hugely important Obamacare lawsuit before November.

he Trump administration would very much prefer that Americans go to the polls this November with zero updates on the lawsuit that would overturn the Affordable Care Act and revoke health insurance from millions of people.

At least, that's the implicit message in the Trump administration's response to the coalition of Democratic-led states and members of the House which asked the Supreme Court to review the Obamacare lawsuit during the high court's current term, which ends this summer.

To back up for a second: Yes, there's an active lawsuit threatening Obamacare. After Congressional Republicans tried and failed to repeal the landmark law without a replacement in 2017 (remember John McCain's thumbs down?), they decided to zero-out the penalty for not having health insurance in the massive tax bill passed in December 2017. 

A group of states led by Texas filed a suit arguing that without that penalty, the entire ACA was unconstitutional and should be overturned. The Department of Justice, instead of defending current laws in court as is practice, chose to support the Texas lawsuit. On December 18, the Fifth Circuit court of appeals struck down part of the law, but sent it back to a lower court to figure out what to do with the rest of it. Following that, a group of Democratic Attorneys General asked the Supreme Court to take up the case during this session. California AG Xavier Becerra said "We’re asking the Supreme Court to swiftly resolve this repeal lawsuit for the sake of saving lives and ending uncertainty in our healthcare system.”

So that's how we get to today, when, in a filing to the Supreme Court, the DOJ's Solicitor General Noel Francisco wrote of the Democratic challenge:

"Petitioners’ requests to expedite consideration of their petitions for writs of certiorari should be denied. Neither the court of appeals’ decision nor the district court’s underlying judgment presents any current exigency that warrants accelerated interlocutory review; to the contrary, the decision below eliminated any such exigency."

Francisco went on to say that the appeals court ruling "creates no present, real-world emergency."

Or in layman's terms: this isn't an urgent matter. Nothing to see here, keep it moving, we're definitely not holding a ball behind our back. 

We still don't know if the Supreme Court will actually take up the case this session (they have a few more weeks to decide), but the Trump administration's argument is telling. They absolutely don't want a ruling on this case before the presidential election because a ruling of any kind would be bad news. If the Supreme Court overturns Obamacare, Republicans are the party that took away healthcare. If the Supreme Court upholds the law, Republicans are still the party that wanted them to overturn it.

Voters did not forget the fervor with which Republicans tried to repeal Obamacare without a replacement in 2017: In the midterm elections the following year, Democrats ran on healthcare and regained control of the House for the first time in almost a decade.

Start with continued efforts to take away healthcare, add in a historically unpopular first-term president who's also been impeached, and Republicans have got themselves a big, big problem. 

Trump seems to know this. In April, he suggested that Republicans would have a great plan with lower costs (narrator: there is no plan), but you have to reelect him first:

There are other things the Trump administration doesn't want people to learn before the election, including how much taxpayers are paying for all of Trump's travel to HIS OWN PROPERTIES and what's inside his tax returns. The fate of Obamacare makes three—a trendlet!

Democrats running for president (and even ones who aren't) should be reminding people every day what the Trump administration is hiding.