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News Saturday, Feb 13 2016

Republicans Turn SCOTUS Vacancy Into Political Football

Feb 13, 2016

Republicans have immediately taken the vacancy on the Supreme Court and turned it into a political football. Ted Cruz, Marco Rubio, Donald Trump, John Kasich, Ben Carson, RNC Chairman Reince Preibus, and Senate Republican Leader Mitch McConnell waited less than two hours after news tonight of Justice Scalia’s death to call for President Obama to abdicate his constitutional responsibility to nominate Supreme Court justices, and the Senate to abdicate its responsibility to confirm justices, and leave the Supreme Court at eight justices for the longest time since Congress raised the full number of justices to nine in 1869.

Beyond the vacancy left by Justice Scalia, Republican presidential candidates on stage tonight have made it abundantly clear that they would nominate right-wing judges and have offered extreme policy proposals to limit the judiciary.

As if on cue, every Republican candidate tonight is arguing that the Senate should abdicate its constitutional responsibility to consider a SCOTUS nominee for the first time in 146 years.
Watch here:


Cruz On The Supreme Court

June 2015: Cruz Proposed Constitutional Amendment To Make Supreme Court Justices Subject To Reelection

Cruz Said He Would Support Retention Elections For Supreme Court Justices. According to Right Wong Watch, “Cruz only answered LaBarbera’s first question about the Obergefell case, railing against the landmark gay marriage decision as ‘one of the greatest threats to our democracy we had seen in modern times,’ and went on to criticize President Obama for being ‘more interested in promoting homosexuality in the military than he is in defeating our enemy.’ […]He also criticized Republicans who decided to ‘surrender’ to the Supreme Court and treat Obergefell as the ‘settled law of the land.’ ‘My response to this decision was that it was illegitimate, it was lawless, it was utterly contrary to the Constitution and that we should fight to defend marriage on every front,’ he said, before promoting constitutional amendments to overturn the ruling and put justices up for retention elections, along with legislation ‘to strip the federal courts of jurisdiction over challenges to marriage.’” [Right Wing Watch, 12/2/15]


Cruz:  “I Am Proposing An Amendment To The U.S. Constitution That Would Subject Each And Every Justice Of The United States Supreme Court To Periodic Judicial Retention Elections.”  [Ted Cruz, Rally, Des Moines, IA, 6/27/15]

Bloomberg Blogger Called Justice Reelection Amendment Proposal “Terrible”

Jonathan Bernstein Opinion: Cruz’s Idea To Create A Constitutional Amendment Requiring Supreme Court Justices To Be Reelected Every 8 Years Was “Terrible” Because “Not Many People Would Cast Informed Votes.” In a Bloomberg blog, Jonathan Bernstein wrote, “But he didn’t stop there. The Texas senator also recently proposed a constitutional amendment to put Supreme Court justices through popular votes every eight years. This is a terrible idea. Not many people would cast informed votes (at present, few Americans can name as many as half the members of the current court). Retention elections would center on a handful of controversial decisions, ignoring the remainder of each justice’s body of work. Money — unconstrained by campaign-finance laws — would be the largest factor in the outcomes. And voters, already heavily overworked by the U.S. political system, would find themselves with an extra burden of choices to make.” [Bloomberg, 6/29/15]

June 2015: Cruz Said Justices Should Run For Congress If They Want To Write Legislation

Cruz: If Members Of The Court Want To Write Legislation Or Rewrite It They Should Resign From The Court And Run For Congress. According to BuzzFeed, “When asked directly by BuzzFeed News about whether Roberts should resign, Cruz said he thought that if ‘members of the court want to write legislation or rewrite it they should resign from the court and run for the Congress.’ ‘The chief justice’s decisions and opinions in the two Obamacare decision last week and three years ago, were profound disappointments, and they were disappointments because John Roberts is an incredibly talented lawyer,’ Cruz said in a sitdown interview on Monday. ‘He knows full well that what he did in both of those decisions was not faithfully applied the law but it was to alter the law, to change the law in order to achieve a policy outcome.’” [BuzzFeed, 6/29/15]

December 2015: Cruz: Republicans Had “Abysmal Record” Appointing Supreme Court Justices

Cruz Said Republicans Had An “Abysmal Record” Appointing Supreme Court Justices. According to Bloomberg, “Ted Cruz says Republicans have ‘an abysmal record’ when it comes to picking Supreme Court justices, and it is something the Texas senator promises to rectify if he’s elected president. Cruz, who argued cases before the Supreme Court as the solicitor general of his state and has taught law school classes on the art of presenting cases to the high court, told Bloomberg Politics in an exclusive interview in Iowa on Mondaythat his party has a knack for picking eventual heretics who side with liberals on divisive issues. As examples, he cited Chief Justice John Roberts, an appointee of President George W. Bush, who rejected a challenge to President Barack Obama’s health care law in 2012, and Justice Anthony Kennedy, a Ronald Reagan appointee, who voted in 2015 to make same-sex marriage a constitutional right. Both cases were decided 5 to 4.” [Bloomberg, 12/2/15]

January 2016: Cruz Did “Not Remotely” Consider Supreme Court Decisions Law

Cruz Said He Did “Not Remotely” Think Supreme Court Decisions Were Law. According to the New York Times, “Mr. Cruz called on a woman who said she had four yes-or-no questions. ‘Yes, yes, no, yes,’ Mr. Cruz said quickly, to laughs. In fact, the answers were: 1) Yes, he has read the Constitution. 2) No, he does ‘not remotely’ think that Supreme Court decisions are the law of the land. 3) No, he does not support birthright citizenship. 4) No, he has not read ‘The Creature From Jekyll Island: A Second Look at the Federal Reserve.’ But he has read ‘Dr. Jekyll and Mr. Hyde.’” [New York Times, 1/9/16]

Cruz:  “I Am Proposing An Amendment To The U.S. Constitution That Would Subject Each And Every Justice Of The United States Supreme Court To Periodic Judicial Retention Elections.”  [Ted Cruz, Rally, Des Moines, IA, 6/27/15]

Cruz:  “We Are One Justice Away From A Five-Justice Radical Left-wing Majority The Likes Of Which This Country Has Never Seen.”  “We have right now an out of control, activist court.  It is lawless now, but as bad as the court is right now, we are one justice away from a five-justice radical leftwing majority the likes of which this country has never seen.  We are one justice away from the Supreme Court striking down the Second Amendment, ruling that no individual American has any right whatsoever to keep and bear arms.  We’re one justice away from that.  We’re one justice away from the Supreme Court striking down Ten Commandments monuments all over the United States, just like the one we have in front of the Texas State Capitol that I was proud to stand with Greg Abbott and defend in front of the Supreme Court and win five-four upholding it.  We’re one justice away from the Supreme Court striking down school choice programs all over the country.  We are one justice away from the Supreme Court striking down every restriction on abortion and mandating unlimited abortion on demand up until the moment of delivery, partial birth abortion with taxpayer funding and no parental notification whatsoever.  We’re one justice away from that.  We are one justice away from the Supreme Court tearing down veterans’ memorials all over this country if they have any acknowledgment of God and we’re not far away from bringing the chisels out to remove crosses and stars of David from the tombstones of our fallen soldiers.”  [Ted Cruz, Empower Texans Online Conversation, 2/5/16]

Cruz:  “About Half Of The Republican Nominees Turn Out To Be Total Disasters.” “This issue is important and the sad reality is this, Democrats, when they make Supreme Court appointments, they bat almost .1000.  Their appointees are liberal activists and they vote leftwing on every major case.  Republicans, we bat about .500 – about half of the Republican nominees turn out to be total disasters.  Earl Warren, Bill Brennan, John Paul Stevens, David Souter, Harry Blackmun, the author of Roe v. Wade – every one of those was a Republican appointee.  The reason, Michael, is you have Republican presidents who don’t really care about the court and so when it comes time to nominate someone they don’t’ want to spend the political capital to actually approve a proven constitutionalist, a proven conservative, so instead they go with a stealth candidate, someone with no paper trail, someone easy to confirm, someone the Democrats won’t fight.  If you look at the other candidates running for president – the other Republicans – none of them have any record that gives us any reason to believe they would be any different, they would be willing to spend the political capital to ensure we put conservatives on the Court.”  [Ted Cruz, Empower Texans Online Conversation, 2/5/16]

Rubio On The Supreme Court

Rubio Claimed Five Justices On The Court Forgot Their “Proper Role” And Highlighted Scalia As The Ideal Justice

[Video]: Rubio:  We Have “Five Justices On The Supreme Court  Today That Have Forgotten The Proper Role Of The Supreme Court.” “We have, apparently, five justices on the Supreme Court today that have forgotten the proper role of the Supreme Court.  They view themselves as super legislators, basically supervisors of the Republic.  They invent rights they find – basically writing and creating law.  The job of the Supreme Court is not to create law, it’s to interpret the Constitution as originally constructed and apply it.  The next president of the United States must nominate Supreme Court justices that believe in the original intent of the Constitution and apply that. We need more Scalias and less Sotomayors.”  [Marco Rubio, Luncheon, Council Bluffs, IA, 7/17/15]

Rubio Stated Any Supreme Court Justice Nominee That ‘Believes That Their Role Is To Make Law Rather Than To Interpret It Is Someone [The Republicans] Shouldn’t Support, And They Should Use All The Means At Their Disposal To Prevent It.’According to an interview with Marco Rubio on National Review, he state, ‘Let me say that whatever someone’s personal beliefs are is largely irrelevant. What matters is what kind of judge they’ll be. And any justice who believes that their role is to make law rather than to interpret it is someone [the Republicans] shouldn’t support, and they should use all the means at their disposal to prevent it. Supreme Court openings are rare, and the ability to influence it is rare. When you have the opportunity to do it, it is an obligation incumbent upon the Senate to ensure that our nominees are folks who are going to interpret the Constitution and respect our separation of powers.’ [National Review, 5/13/09]

Rubio: “We Need More Scalias And Less Sotomayors” In The Supreme Court. According to MSNBC, “On the campaign trail last week, Sen. Marco Rubio (R-Fla.) turned his attention to the U.S. Supreme Court, which he sees, correctly, as one of the key issues in the 2016 presidential race. ‘We apparently have five justices on the Supreme Court today that have forgotten the proper role of the Supreme Court. They view themselves as Super Legislators – basically the supervisors of the republic. They invent rights, they, they find and are basically writing law. The job of the Supreme Court is not to create law, it’s to interpret the Constitution as originally constructed and applied. ‘The next president of the United States must nominate Supreme Court justices that believe in the original intent of the Constitution and apply that. We need more Scalias and less Sotomayors.’” [MSNBC, 7/20/15]

2012: Bizarrely And Incorrectly Claimed A SCOTUS Justice Suggested U.S. Cases Would Be Decided Based On South African Law

[Video] Rubio Claimed That A U.S. Supreme Court Justice Suggested That Some U.S. Cases Will Be Decided Based On South African Law.  “The majority of Americans are conservatives.  They believe in things like the Constitution. I know that’s weird to some people but they believe in it. Of course, if you listen to one of our Supreme Court Justices recently she believes that. – Yeah.  Let me just say if you are an appellate lawyer, you need to brush up on your South African law because that is how some cases apparently are going to be decided here going forward. Anyway, where was I? Oh yeah — America.”  [Marco Rubio, CPAC, Washington, DC, 2/9/12]


  • Politifact Rated Rubio’s Statement About South African Law In The U.S. Courts “False.”  [Politifact, 2/14/12]


Rubio:  “If You Believe The Constitution Is A Living And Breathing Document That Can Be Manipulated To Reach Whatever Policy Outcome You Want, I Will Never Appoint You To Be A Judge At Any Level Of The Federal Government.” “As far as a litmus test, I would.  Here’s the litmus I have – do you believe the Constitution is a living and breathing document or do you believe the Constitution should be applied as originally constructed.  If you believe the Constitution is a living and breathing document that can be manipulated to reach whatever policy outcome you want, I will never appoint you to be a judge at any level of the federal government.  The people that serve in the judiciary, particularly at the appellate level, especially at the Supreme Court, need to be people that understand the Constitution is a document of limitation.  It limits the power of government and it is supposed to be applied as originally constructed.  If you want to change the Constitution, there is a way of doing it.  The courts are not it.  If you want to change the Constitution, you can have an Article V convention, you can get Congress to pursue it, there’s an amendment process.  We can have that debate in a free society, but what we have today is different.  What we have today is judges that are deciding ‘This is the outcome that I want.  This is what I’m in favor of and so I’m going to creatively figure out a way to interpret the Constitution to reach the outcome that I want.”  [Marco Rubio, Town Hall, Hooksett, NH, 1/4/16]

Rubio:  “Whoever I Appoint Needs To Be Someone That Will Apply The Constitution As Originally Constructed. That Will Be My Litmus Test.” “As far a specific cases are concerned, no nominee – no serious nominee for the bench – will ever tell you how they would rule on a specific case and so nor would we ask them, but I will tell you that whoever I appoint needs to be someone that will apply the Constitution as originally constructed. That will be my litmus test – a strict constructionist, not someone who’s going to go around trying to find loopholes or how to manipulate the Constitution.  This is the most important governing document in our country and in the history of the world.”  [Marco Rubio, Town Hall, Hooksett, NH, 1/4/16]

Rubio:  “If You Look At Justice Thomas And Justice Scalia, I Wish We Had Nine Of Them Sitting Instead Of Only Two.” “If you look at Justice Thomas and Justice Scalia, I wish we had nine of them sitting instead of only two.  The Hobby Lobby decision, which recently found that, in fact, even those in business are allowed to live out the teachings of their faith and not be compelled by government to violate their conscience is a decision that I agree with.  And of course there’s a bunch that I disagree with, but that one is important in terms of understanding that religious liberty is not simply the right to believe anything you want.  That’s a part of it.  People always say it’s a right to believe.  It’s not just a right to believe everything you want, it is a right to live out your faith.  In essence, to never be personally compelled to violate your conscience or the teaching of your faith.  That is a critical component of that right and I want justices – and, by the way, an attorney general and a Justice Department – that will protect the right of every American to live out the teachings of their faith in every single aspect of their lives.”  [Marco Rubio, Faith and Family Presidential Forum, Greenville, SC, 2/12/16]

Sonia Sotomayor 

2009: Rubio Did Not Support Sotomayor Nomination To The Supreme Court Despite It Uniting “Nearly All Latinos, Regardless Of Political Affiliation.” According to The Christian Science Monitor, “Rubio penned an op-ed in Politico explaining that he could not support [Sonia Sotomayor’s] nomination, explaining that a vote against her was not anti-Hispanic. ‘Those of us of Hispanic descent don’t expect special treatment,’ he wrote, ‘only the same treatment and same opportunities afforded to all Americans.” [Christian Science Monitor, 11/14/11]

Rubio: Opposition To Sotomayor Not Anti-Hispanic. In an op-ed for Politico, Rubio wrote, “As a whole, Sotomayor’s record reflects a view that judges can and should inject personal experiences and biases into what should be the objective interpretation and application of the law. While her comments about the ‘better conclusions’ a ‘wise Latina woman’ would bring to the bench are universally known, I have more specific concerns about her case history and testimony regarding the Second Amendment at the state level, eminent domain takings and the so-called constitutional right to privacy that resulted in the Roe v. Wade decision. Together, these and other cases point to a nominee who would bring an activist approach to the highest court in the land. Some have said my opposition to Sotomayor’s confirmation and that of Republican senators would incense Hispanic-American voters. Right on cue, many are now attempting to brand Republicans as anti-Hispanic. It should be clear, however, that our opposition to her judicial philosophy is in no way a wholesale opposition to Hispanics. I believe the greatest disservice we could offer the Hispanic community and the nation as a whole is to avoid a serious, principled discussion about the role of the judiciary. I reject the notion that judges should be representative of their sex, race or class. For these reasons, the suggestion that senators who have fundamental concerns about Sotomayor’s judicial philosophy should not dare oppose her for fear of being branded anti-Hispanic is disappointing.” [Politico, 8/5/09]

  • Rubio: “I Have Not Heard One Utterance” In Opposition To Sotomayor That Suggested Ethnicity The Source.In an op-ed for Politico, Rubio wrote, “The true measure of our nation’s progress on issues of race and ethnicity is the freedom of people of conscience to disagree with one another based on sound philosophical reasoning, without fear of being negatively branded because the person they oppose is of a different background or skin color. Reasonable people can disagree, and, in fact, many do in this case. This competition of ideas is healthy when properly centered on policy and philosophy, as it has been. The debate is only poisoned when the color of one’s skin becomes a political football. Unfortunately, some of Sotomayor’s supporters have injected race into the discussion, indicating that a vote against her is a vote against Hispanics, even though I have not heard one utterance from any senator opposing her that reflects a hostility toward Sotomayor personally or to her roots. In evaluating judicial nominees, what matters most is determining what kind of judges they will be. And nominees who share Sotomayor’s view that their role is to make law rather than interpret it are individuals I cannot support and would urge others not to, as well.” [Politico, 8/5/09]

Rubio Was Troubled By Judge Sonia Sotomayor’s Nomination To The Supreme Court. According to a Jonathan Allen, CQ Staff press release obtained via Congressional Quarterly Today, “Rubio said he is troubled by Sotomayor’s record. ‘I hope that a serious examination of her record and beliefs will not be shelved or cast aside simply so Democrats can attempt to claim political credit for a ‘historic’ court nomination.” [Congressional Quarterly Today, 5/26/09]

  • Rubio “Aggressively Court[ed] The Party’s Conservative Wing,” Over Sotomayor Supreme Court Nomination.”According to McClatchy Washington Bureau, “The only prominent Florida Republican to issue a statement critical of Sotomayor was former House Speaker Marco Rubio, who is aggressively courting the party’s conservative wing as he challenges Crist for his party’s nomination. ‘Judge Sotomayor deserves a fair hearing and respectful treatment, but there is much in her legal background that is troubling and demands scrutiny and honest discussion,’ Rubio said.” [McClatchy Washington Bureau, 5/26/09]

Elena Kagan

Rubio Opposed Confirming Elena Kagan To The Supreme Court. According to Sun-Sentinel, “If Marco Rubio were in the Senate, he would vote ‘no’ on confirming Elena Kagan for the Supreme Court. The Miami Republican, who is running for the Senate, objected to Kagan’s ‘political activism in the Clinton White House,’ her record on gun rights and what he called her evasiveness on the constitutionality of the new health care law. Rubio speculated on Tuesday that ‘a Justice Kagan would mean adding a judicial activist to the court whose own political agenda would interfere with her proper role to interpret laws.’” [Sun-Sentinel, 7/6/10]

Trump On The Supreme Court

Trump Planned To Make “Very Conservative” Appointments

Trump, 2015: “When It Comes To The Supreme Court, I’d Want High Intellect And I’d Want Very Conservative.” While appearing on This Week on ABC,  said, “JONATHAN KARL (ABC NEWS) (Off-camera) All right. We’re almost out of time. I want to go through a couple, a lightning-round of quick questions to get a sense of what a Trump presidency would look like. First of all, Supreme Court, who’s your model for a Supreme Court nomination? DONALD TRUMP (REP) (PRESIDENTIAL CANDIDATE) Well, I have number of people that I like, but I will say this, when it comes to the Supreme Court, I’d want high intellect and I’d want very conservative. I would like really high intellect and very conservative.” [ABC – This Week, 8/2/15]

Favored Clarence Thomas

2015: Trump Called Associate Justice Clarence Thomas His Favorite Court Member. According to Associated Press, “Supreme Court Chief Justice John Roberts is ‘disgraceful’ and a ‘disappointment’ to conservatives, Republican presidential candidate Donald Trump said Saturday, while praising Associate Justice Clarence Thomas as his favorite member of the high court. […] Thomas, arguably one of the court’s most conservative members, is ‘very strong and consistent,’ Trump said.” [Associated Press, 12/12/15]

Said Roberts Wanted To Be Loved By Establishment

2012: Trump Believed Chief Justice Roberts Voted To Uphold Affordable Care Act Because He Wanted To Be ‘Loved’ By The Establishment. In a The New York Times Blogs op-ed Andrew Rosenthal wrote, “Love, according to Donald Trump: ‘He voted for it and he did it, in my opinion, politically and he wanted to be loved by the establishment.’” [New York Times Blogs, 7/2/12]

Trump:  “Justice Roberts Really Let Us Down.”  “Justice Roberts really let us down. What he did with Obamacare was disgraceful, and I think he did that because he wanted to be popular inside the Beltway.”  [Donald Trump, Rally, Aiken, SC, 12/12/15]

Trump:  “Scalia Is Terrific, But Clarence Thomas Has Been So Consistent … He Has Been Very Strong And Consistent And I Really Respect That.” “We have three or four very good ones, but a man I think is highly underrated, he’s been so consistent for so long and we should give him credit: Clarence Thomas.  Scalia is terrific, but Clarence Thomas has been so consistent … he has been very strong and consistent and I really respect that.” [Donald Trump, Rally, Aiken, SC, 12/12/15]

Bush On The Supreme Court

Bush Said That Antonin Scalia And Clarence Thomas Were His Model Supreme Court Justices.  “Rich Lowry: Among current Supreme Court justices, who is your model justice?  Jeb Bush:  Wow.  I love Sc… Actually, when I was governor – I’m not a lawyer, but you’ve got to play one sometimes when you’re governor because you’re always getting sued and there’s always a legal consequence to everything and so I learned to appreciate the law a little bit more.  I made a lot of appointments to the Florida Supreme Court and appellate courts, which were really important and so I learned a little bit about this and I started reading rulings.  Friends of mine that were lawyers would send me rulings so that I could find interesting things and Scalia is far and away the most interesting opinion writer and it probably informs his views in the most eloquent way, so he would be on my list.  I actually admire and like the opposite of that would be Clarence Thomas who is quiet and speaks with great clarity when he opines and there’s a consistency there that I admire a lot and I generally share his views.”  [Jeb Bush, National Review Ideas Summit, Washington, DC, 4/30/15]

Jeb Bush Opposed Requiring A 75 Percent Majority For Supreme Court Approvals In The Senate. Question:  Would you be in favor of a Constitutional amendment limiting the term of justices to a ten year period and requiring that an appointee to the court be approved by 75 percent majority in the Senate?  Jeb Bush:   I’m not sure I want that.  No, I’m not for that.  I’ll be practical about this.  I am running for the presidency of the United States.  My hope is that I will have a chance to appoint Supreme Court justices.  I don’t want to have a 75 percent.” [Jeb Bush, Town Hall, Hilton Head, SC, 1/9/16]

Published: Feb 13, 2016

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