Going Nuclear: GOP Uses Filibuster As A Weapon Of Mass Destruction Because They Hate Our Freedoms

Just when you think the Republican's ideological assault on democracy can't get worse, it does.  But this time it isn't the Tea Party nihilists in the House but Establishment Republicans in the Senate who are obstructing the legitimate operation of government, making a mockery of majority rule by requiring that virtually everything must pass a 60-vote threshold.

After the Supreme Court, the D.C. Circuit Court of Appeals is the nation's most important appellate court.  It has jurisdiction over challenges to executive orders, federal regulations and decisions of many federal agencies on topics, as Nan Aron, President of Alliance for Justice, notes, like the environment, consumer protections, workers' rights, banking regulations, executive power, and other vital issues."  Four of the current Supreme Court justices sat on the D.C. Circuit (Roberts, Ginsburg, Thomas and Scalia).

The court is currently evenly split (4-4) between Democrat and Republican-nominated judges, with three vacancies.  President Obama has nominated three extremely qualified judges to fill the three empty seats (after already withdrawing the nomination of another unassailable choice who was blocked by Republicans earlier this year).  Two of the three have already been filibustered by Senate Republicans, who intend to block the third, advancing the specious argument that Obama is engaged in court-packing when he is merely filling existing vacancies. 

Republicans claim the D.C. Circuit, with its relatively smaller (although exceedingly complex) caseload doesn't need all 11 judges.  Of course, as Harry Reid  pointed out, the contention that 11 judges are not needed it "not what they said when President Bush filled several vacant seats on the court. When George W. Bush was President, Senate Republicans happily filled the 9th, 10th and 11th seats on the D.C. Circuit -- the same three seats President Obama seeks to fill today -- even though the court had a smaller caseload at the time."

Republican hypocrisy doesn't end there.  Recall those bygone days when Democrats used the filibuster effectively to thwart some of George W. Bush's more extreme judicial appointments (although not by any means all of them).  Republicans argued back then that use of the filibuster was not just wrong, it was unconstitutional.  They threatened to employ the so-called "nuclear option," to change the Senate rules to preclude filibusters for judicial nominees.  Of course, the Democrats blinked.  Seven Democrats joined seven Republicans to form the "Gang of Fourteen," and signed an agreement in which the Republicans in the gang would not vote for the nuclear option and the Democrats would not filibuster except in "extraordinary circumstances."  In practical terms, this meant that Bush was able appoint the conservatives he wanted to the bench and the Democratic minority, without the seven members of the gang, could not stop him.  Thus, five nominees who had originally been filibustered, and several other conservatives, became federal judges, and, perhaps most significantly, Samuel Alito's nomination to the Supreme Court was permitted an up-or-down vote.  He was confirmed by a vote of 58-42, with enough Senators voting against him to have successfully filibustered and prevented a vote on his confirmation. 

Republicans, now in the minority, are blatantly violating the agreement not to filibuster judges except in extraordinary circumstances but Democrats are balking at going nuclear.  Recalcitrant Democrats fear that when they are in the minority, a Republican president could nominate a right wing radical to the Supreme Court and Democrats would no longer have the filibuster as a tool to stop it.  Indeed, Charles Grassley, the senior Republican on the Senate Judiciary Committee, explicitly threatened that if Democrats eliminate the filibuster it would be easier for a future Republican president to appoint more justices like Antonin Scalia and Clarence Thomas: "All I can say is this -- be careful what you wish for. . . So if the Democrats are bent on changing the rules, then I say go ahead. There are a lot more Scalias and Thomases that we'd love to put on the bench. The nominees we'd nominate and put on the bench with 51 votes would interpret the constitution as it was written."

Of course, if there were a Republican president and Republican majority and Democrats tried to employ the filibuster, Republicans would either go nuclear anyway, or the Democrats would cave as they did in the last go round.  Moreover, what makes anyone think that the Democrats would filibuster a  Supreme Court nominee?  There are already four right wing radicals on the high court and Democrats failed to use the filibuster to stop any of them.  To review, Scalia was nominated by Ronald Reagan in 1986.  The Democratic minority, perhaps distracted by the (ultimately unsuccessful) fight over Justice Rehnquist's nomination for Chief Justice, joined Republicans to approve Scalia unanimously.  In 1991, with Democrats in the majority, the Senate voted in George H.W. Bush's nominee, Clarence Thomas, by a vote of 52-48.  George W. Bush's nomination of John Roberts for Chief Justice was approved by a vote of 78-22, and as discussed above, Alito was confirmed after an agreement not to filibuster.

Republican abuse of the filibuster to prevent a president from filling vacancies no matter who is nominated so as not to tip the majority on the court is unprecedented.  If successful, what is to stop them from blocking nominees in every other court where the ideological split would potentially change in the Democrats' favor -- even the Supreme Court?

The "nuclear" option is really a misnomer.  It is the Republican Party that is using the filibuster as weapon of mass destruction -- a weapon to upend the democratic process.  As George W. would say, it is because "they hate what they see right here in this chamber:  a democratically elected government  . . .  They hate our freedom . .  ."  The smoking gun might not be a mushroom cloud, but if the Democrats refuse to change the filibuster rules and allow Republicans to block Obama's nominees for the D.C. Circuit, they may as well cede the federal judiciary branch -- indeed, our federal government -- to a Republican cabal for the foreseeable future. 

Supreme Court Bans Mandatory Life-Without-Parole For Children Convicted Of Homicide

Bryan Stevenson

In Miller v. Alabama and Jackson v. Hobbs, the Supreme Court holds that mandatory life-without-parole sentences for all children 17 or younger convicted of homicide are unconstitutional.  (I wrote about these cases earlier here.)  Both cases were argued by the brilliant and heroic Bryan Stevenson.

Here is a summary of this great outcome from Equal Justice Institute of which Bryan is the founder and executive director:

The Court today struck down statutes in 29 states that provide for mandatory life-without-parole sentences for children, reasoning that mandatory imposition of life-without-parole sentences on children “contravenes Graham’s (and also Roper’s) foundational principle: that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.”

"This is an important win for children. The Court took a significant step forward by recognizing the fundamental unfairness of mandatory death-in-prison sentences that don't allow sentencers to consider the unique status of children and their potential for change," said Bryan Stevenson, Executive Director of the Equal Justice Initiative, who represents Jackson and Miller. "The Court has recognized that children need additional attention and protection in the criminal justice system.”

Today’s decision requires the lower courts to conduct new sentencing hearings where judges will have to consider children’s individual characters and life circumstances, including age, as well as the circumstances of the crime.

While the Court did not categorically ban juvenile life without parole in all circumstances, Justice Kagan wrote for the majority that, “given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.”

Stevenson cautioned, however, that sentencing courts’ discretion must be exercised in an informed and thoughtful way that acknowledges that children are biologically different than adults and less responsible for their wrongdoing, and that the courts should provide the individuals affected by the ruling a meaningful opportunity to show they have rehabilitated themselves and are appropriate candidates for release.
Stevenson added that historically, race and poverty have been powerful forces in influencing which children receive life-without-parole sentences.

Today's decision follows the Court's earlier rulings in Roper v. Simmons (2005) and Graham v. Florida (2010), which acknowledge the diminished culpability of children.

Groups as diverse as the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Psychiatric Association, the Council of Juvenile Correctional Administrators, the American Bar Association, mental health professionals, former juvenile court judges, criminologists, victims, and national advocacy organizations filed amicus briefs in the cases to urge the Court to give children an opportunity to have their sentences reviewed later in life.

Do We Deserve To Kill?

Bryan Stevenson

I consider myself very fortunate to have met Bryan Stevenson up close and personal.  I have heard him speak countless times, and he never fails to inspire and educate.  No one speaks with more power, eloquence and compassion on the death penalty, on criminal justice, on race, and on how these issues intersect.

The Founder and Executive Director of the Equal Justice Institute in Alabama, Bryan is a brilliant lawyer who recently argued in the United States Supreme Court on behalf of two defendants who were sentenced to life without parole for murders committed when they were fourteen.  He was a guest on Rachel Maddow's show last night, where he discussed the cases, which he described as "death in prison" for juveniles, and how the death penalty frequently "obscures such other issues of severe and excessive punishment."

Bryan explained how our political discourse around crime and punishment "has been corrupted by decades of politics of fear and anger" so that people believe that the fact that a terrible crime has been committed is the "end of the conversation."  But, he maintained, while the criminal justice system is designed to punish and protect public safety, "it also has to be just, to have integrity and to have credibility."

Finally, he talked about the death penalty:

Increasingly we have to confront the fact that the death penalty in this country isn't a question that has to be answered by simply asking, "do people deserve to die for the crimes they committed?"  I think we have to ask, "do we deserve to kill?"  And if our system is flawed, if our system is discriminatory, if our system is unequal as to class and economic status, if our system permits innocent people to be wrongfully convicted and condemned, then I think we will get to a different answer then we might otherwise get. 

Bryan Stevenson is a national treasure.  Here's the entire segment:.

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Supreme Court To Hear Challenge To Death-In-Prison For Children

Kuntrell Jackson was convicted of murder at the age of 14.  Although he did not intend to kill the victim, did not personally do so and engaged in no violence himself, he was sentenced by an Arkansas court to life in prison without the possibility of parole.

Evan Miller, another 14-year old, was also convicted of murder, and sentenced to life without parole, in Alabama.

Both sentences were mandatory and did not permit any consideration of the juvenile’s age or adolescent status.

On Tuesday, the United States Supreme Court will hear argument in these two cases to decide whether sentencing 14-year-olds to life without the possibility of parole sentences constitutes cruel and unusual punishment in violation of the Eighth Amendment.  The brilliant and heroic Bryan Stevenson, will be arguing both cases.

The Supreme Court has come to recognize over the past seven years that children do not possess fully formed judgment and are not as culpable as adults for their misconduct.  First, in 2005, in Roper v. Simmons, the Court held that it was unconstitutional to sentence juveniles to death.  Five years later, in Graham v. Florida, it banned life without parole sentences for juveniles convicted of non-homicide offenses.

Law Professor Kristen Henning, at American Constitution Society's blog explains how minors are treated differently in other areas of the law given the biological and psychological differences  between children and adults.  "Scientific research on adolescent development bolsters the commonsense understanding that teenagers lack self-control, are vulnerable to environmental pressures, and have fewer life experiences on which to draw in evaluating the consequences of their actions."  Developmental psychologists have "consistently found deficiencies in the decision-making capacities of youth, especially in fast-paced, stressful circumstances," and studies in cognitive development show that "youth often lack the capacity to process information, conceptualize future consequences and engage in logical reasoning." Recent advances in neuology confirm that "areas of the brain that control logical reasoning and responsible decision-making are the last to mature and develop."

Henning notes that "the logical underpinnings of Graham and Roper extend to juveniles convicted of homicide."   The Court has already recognized "the unique characteristics of adolescence that make a permanent, irrevocable sentence excessive and unconstitutional for a child who commits a serious felony" which should apply "equally to children convicted of a homicide."

It is significant that "only 79 people in the United States are serving life-without-parole sentences for homicide offenses committed by youth at age 13 and 14, in only 18 states.  The vast majority of jurisdictions nationwide (32 states and the District of Columbia) have never sentenced a child aged 13 or 14 to a life sentence without the possibility of parole."

As Henning concludes:

Adolescents who commit serious crimes simply cannot be said to have fixed, irredeemable characters.  A return to this scientifically validated view of children should compel the Supreme Court to ban juvenile life without parole for children, regardless of offense. Such a ban would ensure that children who commit even the most regrettable acts have a meaningful opportunity for reform. The Supreme Court has taken several crucial steps down this road, and it should not reverse course now.

A Closer Look At Juvenile Interrogations

By Brandon L. Garrett, originally posted on American Constitution Society's blog, June 17, 2001.

The Supreme Court’s decision in J.D.B. v. North Carolina provides the latest window into the troubled world of juvenile interrogations. The Court ruled that police questioning of a thirteen-year-old boy about residential robberies, without giving the famous Miranda warnings or allowing him to call his grandmother, may have rendered his confession inadmissible. If he in fact should reasonably have felt “free to leave” then the questioning was not custodial, and the Miranda warnings need not have been given. However, the Court said that the trial judge should have examined whether his age was a factor when deciding whether he should have actually felt free to leave. He was in a classroom with the door closed and school officials present, not in an interrogation room in a police station.

But the Court described how a thirteen-year-old might very well not feel free to leave under the circumstances. The thirteen-year-old confessed in thirty to forty-five minutes. He was told he could not call his grandmother, his legal guardian, and that he would end up in juvenile detention. The Court called it a “commonsense reality” that juveniles should be treated differently because, as the Court has recognized in many other opinions dealing with punishment of juveniles, they are more “vulnerable” and “susceptible to outside pressures than adults.”