Judge David Tatel Honored by Chicago Lawyers’ Committee for Civil Rights 

At its 50th Anniversary Gala on October 24, the Chicago Lawyers’ Committee for Civil Rights granted its Legal Champion Award to Judge David S. Tatel. Here we will review the Gala Co-Chair’s introduction of the Judge, the latter’s response and the Judge’s recent opinion for the U.S. Court of Appeals for the D.C. Circuit upholding a House of Representatives committee’s subpoena to an accounting firm for certain financial records of Donald Trump and some of his companies. This post will conclude with some personal remarks by this blogger.

Co-Chair’s Introduction of Judge Tatel

 Nate Eimer, a Chicago attorney and Co-Chair of the Gala, introduced the Judge with these remarks, “Fifty years ago, [David Tatel,] a brilliant, dedicated, courageous University of Chicago of Law graduate working as an associate at Sidley & Austin decided to leave the firm and join the newly formed Chicago Lawyers’ Committee for Civil Rights Under Law as its founding Executive Director.”

“[Before then, David Tatel already had begun] his life of dedicated service to the cause of civil rights immediately upon his arrival at Sidley doing pro bono work for the Chicago Urban League. [And in] his first year as Executive Director of the Lawyers’ Committee [Mr.] Tatel initiated almost 50 projects to advance civil rights in the areas of education, housing, community economic development, employment, and police accountability.”

“In that first year the Committee’s efforts led to the federal investigation and indictment of those responsible for the murder of Black Panthers Fred Hampton and Mark Clark.  Another effort, reminiscent of the recent school closings in Chicago, was the Committee’s member firms’ successful representation of a group of parents on the South Side whose cooperative school was abruptly closed by the City of Chicago.”

“On leaving the Chicago Lawyers’ Committee, . . . [Mr. Tatel] moved to Washington DC where he joined Sidley’s DC office and then served as the  Executive Director of the National Lawyers’ Committee for Civil Rights and later as the Director of the Office for Civil Rights of HEW.”

“In 1994, . . .[David] Tatel was nominated by President Bill Clinton to assume the seat held by Justice Ruth Bader Ginsburg on the United States Court of Appeals for the D. C. Circuit.  This is Judge Tatel’s 25th year on the bench.  His recent opinion in Trump v. Mazar – which upheld the House Oversight Committee’s subpoena for records relating to President, candidate, and private citizen Trump’s financial records – was widely recognized as ‘meticulous and scholarly.’”

The printed Gala program added these words about the Judge’s background: “Judge Tatel earned his undergraduate degree from the University of Michigan and his J.D. degree from the University of Chicago. [After HEW, he returned to private practice in 1979 to join]. . .  Hogan & Hartson, where he founded and headed the firm’s education practice until his appointment by President Clinton to the D.C. Circuit. Judge Tatel currently co-chairs the National Academy of Sciences’ Committee on Science, Technology and Law, and serves on the boards of Associated Universities , Inc. and the Federal Judicial Center. Judge Tatel is a member of the American Philosophical Society and the American Academy of Arts and Sciences. Judge Tatel and his wife, Edith, have four children and eight grandchildren.”

 Judge Tatel’s Acceptance Speech

For me, serving as the Chicago Lawyers’ Committee’s first executive director was one of the most formative experiences of my career. I was only twenty-seven years old, yet through the Lawyers’ Committee, I met and worked with some of the most dedicated and gifted members of the Chicago bar. Two of those lawyers, Dick Babcock, of Ross, Hardies, O’Keefe, Babcock, McDugald & Parsons, now part of McGuire Woods, and Bill Haddad, of Bell, Boyd, Lloyd, Haddad & Burns, now part of K&L Gates, were the true founders of the Chicago Lawyers’ Committee. It was they who took the baton from the National Committee and laid the foundation for the success you celebrate today.”

“Like the founders of the National Lawyers’ Committee six years earlier, Babcock and Haddad were not civil rights lawyers—far from it. Bill was a tax lawyer and Dick specialized in municipal zoning, but they were community leaders, ‘lawyer-statesmen,’ as it were, committed to the Constitution and the rule of law.”

“Joined by twelve other lawyers, all senior partners in the city’s major law firms, Babcock and Haddad formed the Chicago Lawyers’ Committee to bring the skills, energy, and prestige of the legal profession to bear on the serious civil rights problems facing this city—problems dramatically highlighted just one year earlier during the devastating riots that swept through the south and west sides in the wake of the assassination of Dr. Martin Luther King, Jr.”

“The Committee began its work in a small office on the 19th floor of the old Monadnock Building at 53 West Jackson—just me, a secretary, and a used Xerox machine. Member firms quickly took on representations involving education, employment, housing, and community development.”

“And then, on a dark, cold December morning just a few months after the Committee opened its doors, fourteen heavily-armed police officers assigned to a special unit of the Cook County State’s Attorney raided an apartment at 2337 West Monroe. When the raid was over, two leaders of the Black Panther Party lay dead, cut down in a hail of bullets. The State’s Attorney called the raid ‘a fierce gun battle’ and congratulated his officers on their ‘bravery and restraint in the face of the vicious Black Panther attack,’ yet a subsequent investigation found that the apartment’s occupants had fired but two shots. In response, Dick Babcock, Bill Haddad, and ten other members of the Lawyers’ Committee sent a telegram to the Attorney General of the United States calling for the appointment of a special grand jury. They warned that the incident had ‘exacerbated to a critically dangerous level the already tense relations between the black community and the police.’ The telegram concluded with these simple but powerful words that Dick added in his own handwriting just before calling Western Union: ‘None of us is accustomed to petitioning government. That we now do is a measure of the depth of our concern.’”

“In calling for a federal investigation, these prominent attorneys were fulfilling the vision President John F. Kennedy articulated in June 1963 when he called on the nation’s lawyers to play a more active role in the fight for racial equality. Deeply troubled about the South’s violent response to the civil rights movement, especially the assassination of Medgar Evers and the firehosing of demonstrators in Birmingham, and having just federalized the Alabama National Guard to enforce court-ordered desegregation at the University of Alabama, the president told 250 leaders of the bar assembled in the East Room that lawyers have a special responsibility to ensure that civil rights issues are resolved ‘in the courts, not the streets.’ Thus was born the Lawyers’ Committee for Civil Rights Under Law.”

“Like the lawyers who heeded Kennedy’s call, Babcock, Haddad, and the others who signed the telegram to the Attorney General were acting in the very best tradition of the legal profession. Even though they were committing their names and reputations to defending an organization whose tactics they and most Chicagoans deplored, they demanded, as lawyers and officers of the court, that the city confront the Black Panther Party through the legal system, and that it hold accountable those officials who had taken the law into their own hands. The lawyers who signed the telegram to the Attorney General, like the 250 lawyers listening to President Kennedy in the East Room, were Democrats and Republicans, liberals and conservatives. But they had no disagreement about the fundamental proposition that in a nation based on the rule of law, civil rights conflicts must be resolved through the legal process.”

“This bipartisan commitment to the rule of law is the key to the Lawyers’ Committee for Civil Rights Under Law. It is what makes the Lawyers’ Committee unique, and now more than ever, it is this precious bipartisan commitment to civil rights that the Chicago Lawyers’ Committee must seek to preserve.”

Judge Tatel’s Opinion in Trump v. Mazars USA LLP [1]

On October 11, just two weeks before this award, Judge Tatel wrote the 2-1 opinion for a panel of the D.C. Circuit upholding the subpoena by the House Committee on Oversight and Reform to the accounting firm Mazars, USA LLP for “records related to work performed for President Trump and several of his business entities both before and after he took office.” The opinion started with its conclusion that was explicated in the balance of the opinion: “the Committee possesses authority both under the House Rules and the Constitution to issue the subpoena, and Mazars must comply.” The opinion then cited many Supreme Court cases and other authorities in the following five sections:

1. The current Congress on January 3, 2019, debated and adopted “a set of rules to govern its proceedings.” It established the previously mentioned Committee, which was charged with “review[ing] and study[ing] on a continuing basis the operation of Government activities at all levels” and which was authorized to “conduct investigations” “at any time . . . of any matter,” “without regard to” other standing committees’ jurisdictions. To “carry[] out . . . [these] functions and duties” the . . . Committee may “require by subpoena or otherwise . . . the production of such . . . documents as it considers necessary.”

The opinion then reviewed the background for this subpoena, including the Ethics in Government Act of 1978 and the district court’s opinion in this case that had upheld this subpoena.

2. Next Judge Tatel’s opinion reviewed the history of legislative subpoenas, starting with the English Parliament and U.S. congressional subpoenas before discussing U.S. Supreme Court cases regarding the latter (as well as the D.C. Circuit’s opinion in a case over a Senate subpoena to President Nixon). These authorities established the following governing principles: (a) the committee must have been delegated the power to conduct investigations; (b) the congressional power to investigate is broad; Congress, however, may not “usurp the other branches’ constitutionally designated functions nor violate individuals’ constitutionally protected rights” or “conduct itself as a law enforcement agency;” (c) “Congress may investigate only those topics on which it could legislate;” and (d) “congressional committees may subpoena only information ’calculated to’ ‘materially aid[]’ their investigations.”                                                      3. The opinion then reviewed the “public record,” including “several pieces of legislation related to the Committee’s inquiry,” regarding this subpoena and concluded that it “reveals legitimate legislative pursuits, not an impermissible law-enforcement purpose.” Moreover, “this subpoena is a valid exercise of the legislative oversight authority because it seeks information important to determining the fitness of legislation to address potential problems within the Executive Branch and the electoral system; it does not seek to determine the President’s fitness for office.” In short, “the categories of information sought are ‘reasonably relevant’ to the Committee’s legitimate legislative inquiry.”                 4. Next the opinion rejected Mazars’ contention that the full House had not authorized the Committee to issue this subpoena. After all, Mazars had not challenged “the most natural reading of the House Rules [that] the full chamber has authorized the Committee to issue the challenged subpoena” and “the House Rules have no effect whatsoever on the balance between Congress and the President.”                                                                                                                            5.Finally, “the constitutional questions raised here are neither “’[g]rave’” nor “’serious and difficult.’” “We therefore have no cause to invoke the canon of constitutional avoidance.” “It is Mazars, a third-party, that will retrieve and organize the relevant information; the subpoena seeks non-confidential records in which the President has asserted no proprietary or evidentiary protections; and it is Mazars, not the President, [that] risks contempt through non-compliance.”

Conclusion

 This blogger is a University of Chicago Law School classmate and friend of Judge Tatel and at our 50th reunion in May 2016, presented our classmates with a booklet containing his biography and a selected list of 10 of his most significant cases as of that date.[2]

In 1957 David was diagnosed with retinitis pigmentosa, a genetic disorder causing loss of vision, which happened for him around 1973. I continue to be amazed at his ability to overcome this disorder and do this difficult and important legal work with such intelligence, diligence and grace. Thank you, Judge Tatel!

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[1] Trump v. Mazars and Committee on Oversight & Reform of the U.S. House of Representatives, No. 19-5142 (D.C. Cir. Oct. 11, 2019).   The dissenting opinion of Circuit Judge Neomi Rao is not discussed in this post.

[2] See these posts to dwkcommentaries.com mentioning Judge Tatel: My Years at the University of Chicago Law School (Dec. 27, 2011); The D.C. Circuit’s Decision Upholding the Validity of the Voting Rights Act of 2006 (March 11, 2013); Judging on the U.S. Court of Appeals for the D.C. Circuit (April 11, 2013); Federal Appellate Court Allows Lawsuit by Guantanamo Detainees (March 1, 2014).

 

Cuban Ladies in White Win Cato Institute’s Milton Friedman Prize

At a May 17 New York City gala dinner, the Cato Institute awarded its $250,000 Milton Friedman Prize for Advancing Liberty to Cuba’s Ladies in White.[1] This award, the political reaction to the award, Cato’s other positions on Cuba and Cato’s background raise interesting issues as discussed below.

The Award

The Institute’s announcement of this prize said the following:

  • “The Ladies in White (Damas de Blanco) have a simple message: The political prisoners of Cuba are our sons, our brothers, and our husbands. They must not be forgotten.”
  • “Every Sunday, the Ladies in White gather, or attempt to gather, for Mass at Saint Rita de Casia Church in Havana, followed by a procession down Fifth Avenue. They wear white to symbolize the peaceful nature of their protest, and each wears a photograph of a loved one who is in prison. For this the authorities have constantly harassed them and organized mob violence against them.”
  • “The movement began on March 18, 2003, when journalist Héctor Maseda Gutiérrez was arrested in his home in Havana and sentenced to 20 years in prison for criticizing the regime of Fidel Castro. His case drew worldwide attention, with Amnesty International calling him a prisoner of conscience and demanding his release. Around 75 others were arrested at the same time, in an incident that has been called the Black Spring. All have since left prison, though not unconditionally, with the majority having had to leave Cuba. Since that time, sporadic arrests of journalists, lawyers, and other intellectuals have continued in Cuba, belying the myth that with normalized relations, Cuba’s human rights record would improve. If anything, it has deteriorated.”
  • “Two weeks after Maseda was arrested, his wife Laura Pollán Toledo brought together a group of wives, mothers, sisters, and daughters of the imprisoned to pray for their loved ones. They have continued to gather each Sunday, and the movement has since spread to other churches throughout Cuba. Although they are not a political party and do not have an overtly political program, they seek freedom of expression for all and the release of prisoners of conscience in Cuba. In recognition of their courage, the Ladies in White were the 2005 recipients of the Sakharov Prize for Freedom of Thought, awarded by the European Parliament. The Cuban government prohibited them from attending the award ceremony in Strasbourg, France.”
  • “In 2015 Berta Soler, one of the leaders of the group, told the U.S. Senate, “Our aspirations are legitimate…. Our demands are quite concrete: freedom for political prisoners, recognition of civil society, the elimination of all criminal dispositions that penalize freedom of expression and association and the right of the Cuban people to choose their future through free, multiparty elections. We believe these demands are just and valid. Even more importantly, for us they represent the most concrete exercise of politics, a step in the direction of democratic coexistence. Cuba will change when the laws that enable and protect the criminal behavior of the forces of repression and corrupt elements that sustain the regime change.”
  • “As the first step, the Ladies in White demand the release of all political prisoners. The outlook for many of the prisoners is grim; prison conditions are deplorable, visits are rare, and even their mail is intercepted by the authorities. And the Ladies themselves have faced increasing police harassment and arrest in recent years, as the Cuban government tries to hide-but not correct-its habit of quashing dissent. Laura Pollán died in 2011 under gravely suspicious circumstances. But the movement she founded continues: The Ladies in White will meet, pray, and bear witness every Sunday until Cuba’s political prisoners are freed.”

The keynote speaker at the gala dinner was Brazilian Judge, Sergio Moro, who become a household name in his country thanks to Operation Car Wash, the massive scandal in which he has sent some of Brazil’s most powerful politicians and business elite to jail for corruption.

U.S. Political Reaction to the Award[2]

Just before Cato’s dinner, U.S. Ambassador Nikki Haley met with representatives of Cuba’s Ladies in White at the U.N. and with a photo tweeted, “Congratulations to the Ladies in White for your Milton Friedman award for advancing liberty. The US stands behind you in your fight against the Cuban government for the rights of its people.” Here is that photo of Ambassador Haley with members of the group.

The prior day four U.S. Senators– Marco Rubio (Rep., FL), Bill Nelson (Dem., FL), Bob Menendez (Dem., NJ) and Ted Cruz (Rep., TX)– introduced a resolution congratulating the Ladies in White on receiving the prestigious award, expressing solidarity with the democratic aspirations of the Cuban people and calling on the Cuban regime to allow members of Las Damas de Blanco to travel freely both domestically and internationally. The press release continued, “the dissident group, which routinely faces brutal beatings and imprisonment from the Cuban regime, peacefully gathers and marches in white clothes every Sunday in Havana carrying a picture of their loved ones in one hand and a white gladiolus in the other.”

Subsequent Incidents Involving the Ladies in White[3]

On Sunday, May 20, the Ladies in White who were on the street were arrested and soon thereafter released except for Marieta Martinez. And the next Tuesday, May 22, their leader, Berta Soler, was arrested outside the group’s Havana headquarters.  Another member, Cecilia Guerra, was also arrested outside the headquarters and immediately released. In addition, two others, Maria Carolina Labrada and Deysi Artiless,  were arrested at their homes.

Cato Institute’s Other Positions on Cuba[4]

Cato Institute’s Handbook for Policymakers, 8th Edition (2017), surprisingly for this reader, recommended repeal of two key statutes authorizing the embargo– the Helms-Burton Law of 1996 and the Torricelli Act of 1992–and ending “all remaining sanctions that prevent U.S. companies from trading and investing in Cuba.” This, it said, would leave the Cold War in the past, and eliminate unintended consequences of a flawed policy. In short, it said, “U.S. policy toward Cuba should focus on national security interests, not on transforming Cuban society or micromanaging the affairs of a transitional government.”

These positions were reiterated in a June 2017 article by a Cato senior fellow, just after President Trump in his Miami speech announced cutbacks in policies for U.S. travel to the island. The article asserted, “The presidential campaign is over. President Trump should do what is best for both the American and Cuban people, and end economic restrictions on the island. Freedom eventually will come to Cuba. Flooding the island with foreign people and money would make that day arrive sooner.”

Cato Institute Background[5]

The Cato Institute describes itself as “a public policy research organization — a think tank — dedicated to the principles of individual liberty, limited government, free markets and peace. Its scholars and analysts conduct independent, nonpartisan research on a wide range of policy issues. It accepts no government funding. Instead, it receives approximately 80 percent of its funding through tax-deductible contributions from individuals, foundations, corporations, and the sale of books and publications.”

Founded in 1974 in Wichita, Kansas as the Charles Koch Foundation by Charles Koch, who is one of the wealthiest persons in the world and who with his brother David runs Koch Industries that supports many so-called conservative causes. In 1976 the Foundation moved to Washington, D.C. and adopted its current name in recognition of Cato’s Letters, a series of essays published in 18th- century England that presented a vision of society free from excessive government power. Cato says “those essays inspired the architects of the American Revolution. And the simple, timeless principles of that revolution — individual liberty, limited government, and free markets — turn out to be even more powerful in today’s world of global markets and unprecedented access to information than Jefferson or Madison could have imagined. Social and economic freedom is not just the best policy for a free people, it is the indispensable framework for the future.”

The current 19 members of Cato’s Board are the following:

John A. Allison, Former President & CEO, Cato Institute; Retired Chairman & CEO, BB&T (the 10th-largest U.S. financial services holding company);

Carl Barney, Chairman, Center for Excellence in Higher Education, a Scientologist and very wealthy operator of for-profit colleges;

Baron Bond, Executive Vice President, The Foundation Group LLC, a real estate management, investment, and development company whose biography appears on the website for the Atlas Society named after Ayn Rand’s “Atlas Shrugged;”

Rebecca Dunn, Trustee, DUNN Foundation, which says it “believes that liberty and opportunity should be enjoyed by the people of this Nation, envisions a world where the use of force by coercive public or private institutions no longer threatens our freedoms and celebrates entrepreneurial innovations that further these purposes;”

Robert Gelfond, wealthy CEO and Founder, Macro Quantitative Strategies (MQS);

Peter N. Goettler, President & CEO, Cato Institute, former officer of Barclays Capital and on board of Atlas Network and advocate of libertarian organizations in several foreign countries;

David C. Humphreys, President & CEO, TAMKO Building Products, Inc. and a “massive” Republican donor;

James M. Kilts, wealthy Partner, Centerview Capital Holdings, an investment banking firm, and former CEO, The Gillette Company;

James M. Lapeyre, Jr., President, Laitram, LLC, a diversified global manufacturer and officer of The Atlas Society;

Ken Levy, Levy Family Fund and businessman;

Robert A. Levy, Chairman, Cato Institute, founder of a major provider of investment information and software and successful attorney in Supreme Court ban on Washington, D.C. gun ban;

Preston Marshall, President/CEO, Rusk Capital Management and friend of the Koch brothers;

Nancy M. Pfotenhauer, President and CEO, MediaSpeak Strategies, staffer on 2008 McCain/Palin campaign and former director of the Washington, D.C. office of Koch Industries;

Lewis E. Randall, Former Director, E*Trade Financial, a financial services company;

Howard S. Rich, real estate investor and Chairman, U.S.Term Limits and other libertarian-oriented political initiatives;

Donald G. Smith, President, Donald Smith & Co., Inc., an investment advisory firm;

Nestor R. Weigand, Jr., Chairman and CEO, JP Weigand & Sons, Inc., a full-service real estate firm;

Jeffrey S. Yass, Managing Director, Susquehanna International Group, LLP, a global trading and technology firm;

Fred Young, Former Owner, Young Radiator Company, and major supporter of conservative groups and candidates.

The members of the International Selection Committee for the 2018 Prize were Leszek Balcerowicz, Former Deputy Prime Minister and Finance Minister, Poland; Janice Rogers Brown, Former Judge, U.S. Court of Appeals for the District of Columbia Circuit; Vicente Fox. Former President, Mexico; Sloane Frost, Chairwoman, Board of Directors, Students for Liberty; Peter N. Goettler, President and CEO, Cato Institute; Herman Mashaba. Executive Mayor, Johannesburg, South Africa; Harvey Silverglate, Co-founder, Foundation for Individual Rights in Education; Donald G. Smith, President, Donald Smith & Company Inc.; and Linda Whetstone, Chair, Atlas Network.

 Conclusion

The preceding account of the history of the Ladies in White tells an impressive story of alleged Cuban suppression of dissent, free speech and assembly and freedom of religion. The Cuban government, however, disagrees and is believed to assert that these women are not religious activists and dissenters, but trouble-makers for hire by the CIA or U.S. Agency for International Development or private groups in the U.S.

Which account is true? We need to hear more from the Cubans and U.S. journalists or private investigators who have investigated the activities of the Ladies in White.

The creation of the Cato Institute (f/k/a Charles Koch Foundation) by Charles Koch and the changing of its name perhaps to conceal or minimize its Koch origins raise questions about its objectivity and fairness.

Cato’s 19-member Board has 17 white, very successful and wealthy men and two white women who apparently are married to very successful and wealthy white men. This too raises questions about the board’s objectivity and fairness.

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[1] Cato Institute, The Milton Friedman Prize for Advancing Liberty: Las Damas de Blanco, Winner of the 2018 Milton Friedman Prize; Whitefield, Cuba’s Ladies in White win $250,000 prize for advancing liberty, Miami Herald (May 17, 2018).

[2] U.S. Miss. to UN, Tweet: Congratulations to the Ladies in White (May 17, 2018); Press Release, Rubio, Menendez, Nelson, Cruz Introduce Resolution Honoring ladies in White for Milton Friedman Prize for Advancing Liberty (May 16, 2018).

[3] The regime stops Berta Soler and deploys operations in the homes of other Ladies in White, Diario de Cuba (May 22, 2018).

[4] Cato Institute, CATO Handbook for Policymakers—Relations with Cuba,  8th Edition (2017); Bandow, Trump Panders on Cuba, Preferring Cold War over Progress, Cato Inst. (June 23, 2017).

[5]  Cato Institute, About Cato; Cato Institute, Wikipedia.

Wall Street Journal Publishes President Obama’s Plea for a Senate Hearing and Vote on Nomination of Merrick Garland to U.S. Supreme Court

On July 17 the Wall Street Journal, which usually is opposed to President Obama, published President Obama’s plea for a U.S. Senate hearing and vote on the President’s nomination of Judge Merrick Garland to fill the vacancy on the U.S. Supreme Court.[1] Here is what the President wrote.

“For more than 40 years, there has been an average of just over two months between a president’s nominating someone to the Supreme Court and that person’s receiving a hearing in Congress. It has now been more than four months since I nominated Merrick Garland, chief judge of the U.S. Court of Appeals for the D.C. Circuit—and Congress left town for a seven-week recess without giving him a hearing, let alone an up-or-down vote.”

“This is much more serious than your typical case of Washington dysfunction. And if we allow it to continue, the consequences of congressional inaction could weaken our most important institutions, erode public trust and undermine our democracy.”

“Every Supreme Court nominee since 1875 who hasn’t withdrawn from the process has received a hearing or a vote. Even when the nominee was controversial. Even when the Senate and the White House were held by different parties.”

“But Chief Judge Garland isn’t controversial. He has more federal judicial experience than any Supreme Court nominee in our history. He is widely respected by people of both political parties as a man of experience, integrity and unimpeachable qualifications. The partisan decision of Senate Republicans to deny a hearing to a judge who has served his country with honor and dignity is not just an insult to a good man—it is an unprecedented escalation of the stakes. It threatens the very process by which we nominate judges, regardless of who our next president is. And it should concern every American who cares about the rule of law and upholding the institutions that make our democracy work.”

“Here’s why. Historically, when a president nominates a Supreme Court justice—regardless of when in the presidential term this occurs—the Senate is obligated to act. Senators are free to vote their conscience. But they vote. That’s their job.”

“If Republicans in the Senate refuse even to consider a nominee in the hopes of running out the clock until they can elect a president from their own party, so that he can nominate his own justice to the Supreme Court, then they will effectively nullify the ability of any president from the opposing party to make an appointment to the nation’s highest court. They would reduce the very functioning of the judicial branch of the government to another political leverage point.”

“We cannot allow the judicial confirmation process to descend into an endless cycle of political retaliation. There would be no path to fill a vacancy for the highest court in the land. The process would stall. Court backlogs would grow. An entire branch of government would be unable to fulfill its constitutional role. And some of the most important questions of our time would go unanswered.”

“This is troubling for two reasons. First, a functioning judiciary—at every level—is essential to the business of the nation. For example, last month, a deadlocked Supreme Court was unable to reach a decision on several major issues, leaving the law itself in limbo. Across the country, judicial vacancies are leaving some lower courts so overwhelmed they can barely make it through their dockets. Twenty-nine judicial emergencies have been declared by lower courts across the country. This has real implications for jurisprudence, real financial costs to the judicial system and real consequences in the lives of people awaiting the outcomes of those cases.”

“Second, treating the Supreme Court like a political football makes the American people more cynical about democracy. When the Supreme Court becomes a proxy for political parties, public confidence in the notion of an impartial, independent judiciary breaks down. And the resulting lack of trust can undermine the rule of law.”

“So here’s an idea. Democrats and Republicans in the Senate could agree to give Chief Judge Garland a hearing when they return from their extended recess, while also committing to give every future qualified Supreme Court nominee a hearing and a vote within an established time frame. It’s a good idea that my predecessor, President George W. Bush, suggested during his time in office. This reasonable proposal would prevent the confirmation process from breaking down beyond repair, and help restore good faith between the two parties.”

“In my travels around the world as president, I have seen how hard democracy is—how it takes more than a proclamation or even an election. Democracies depend on the institutions we build, the rules upon which the nation is founded, and the traditions, customs and habits of heart that guide our behavior and ensure that political differences never override the founding ideals that bind us. And it is on us—all of us—to preserve and protect them.”

“Now we need Congress to act. We need senators to demonstrate that, once again, America has the capacity to rise above disagreements and maintain a fidelity to the values that, for 240 years, have made this extraordinary experiment a success. That’s what the American people deserve—and it’s what makes ours the greatest country the world has ever known.”

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[1] President Obama, Merrick Garland Deserves a Vote—For Democracy’s Sake, W.S.J. (July 17, 2016).