The year-long scuffle over the Supreme Court’s ninth seat ended Friday morning, when the Senate confirmed Neil Gorsuch to fill the vacancy left by Justice Antonin Scalia, who died last February. Voting largely along party lines–save for three Democrats–the 54-45 vote capped weeks of fierce debate, culminating in a historic rule change that could further deepen the partisan rancor in the Senate.

After failing to secure the 60 votes needed to break a Democratic filibuster, Senate Republicans on Thursday triggered the so-called “nuclear option,” effectively disposing of the filibuster option for Supreme Court nominees. As a result, the 60-vote threshold dropped to a simple majority which, with 52 members in the 100-member chamber, Republicans had no trouble reaching.

“[Gorsuch] has sterling credentials, an excellent record and an ideal judicial temperament,” Sen. Mitch McConnell said after the vote. “He has the independence of mind for fairness.” Throughout 20 hours of questioning from the Senate during his confirmation hearings last month, Gorsuch was predictably elusive, neglecting to say where he would stand on specific issues.

Democrats said his strict interpretation of the Constitution put him out of the “mainstream,” and argued he too often ruled in favor of big corporations. But from the beginning, the fight was a referendum on the man who nominated Gorsuch, President Donald Trump. It was also retribution for McConnell’s refusal to give Merrick Garland–who President Barack Obama nominated to the seat–a hearing. McConnell argued a sitting-duck president should not have the authority to nominate a judge to the Supreme Court.

But despite weeks of mostly uniform Democratic resistance to Gorsuch, three Democrats, all from states that Trump captured in the election, supported him: Sens. Heidi Heitkamp (ND), Joe Manchin III (WV), and Joe Donnelly (IN). Republican Johnny Isakson of Georgia did not cast a vote.

With an immovable Democratic resistance threatening to derail the nomination of a candidate who, by many metrics, was qualified, Republicans took the extreme step of pursuing the “nuclear option.” For legislative votes, however, the filibuster will remain in place. The move was not without precedent. In 2013, then-Democratic Majority Leader Harry Reid dismantled the filibuster option for lower federal court picks and cabinet appointees.

After leading the resistance against Gorsuch, Sen. Chuck Schumer (D-NY), the minority leader, said he hopes Gorsuch will not be beholden to the man who nominated him to the court. “I hope Judge Gorsuch has listened to our debate here in the Senate, particularly about our concerns about the Supreme Court increasingly drifting towards becoming a more pro-corporate court that favors employers, corporations and special interests over working Americans,” Schumer said, imploring Gorsuch to be “the independent and fair-minded justice that America badly needs.” Gorsuch will be sworn in on Monday.

Alec Siegel

Alec Siegel is a staff writer at Law Street Media. When he’s not working at Law Street he’s either cooking a mediocre tofu dish or enjoying a run in the woods. His passions include: gooey chocolate chips, black coffee, mountains, the Animal Kingdom in general, and John Lennon. Baklava is his achilles heel. Contact Alec at ASiegel@LawStreetMedia.com.

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Neil Gorsuch will likely face an uphill battle in securing the Supreme Court’s vacant ninth seat. On Thursday, the last day of Gorsuch’s Senate confirmation hearings, Democrats signaled they would filibuster President Donald Trump’s nominee to the Supreme Court. That would leave Republicans with two options: introduce a new nominee, or pursue the so-called “nuclear option,” and obliterate the filibuster possibility for Supreme Court nominees.

In a speech on the Senate floor Thursday morning, Sen. Chuck Schumer (D-NY), the Minority Leader, said Gorsuch “will have to earn 60 votes for confirmation,” adding: “My vote will be no.” As the rules stand, Gorsuch would require 60 votes–eight Democrats along with the 52 Republican Senators–to pass. If Republicans decide to scrap the filibuster option, a simple majority would be sufficient.

Voicing a common concern among Democrats and liberal groups, Schumer said he fears Gorsuch would interpret the law in an ultra-conservative manner. “His career and judicial record suggest not a neutral legal mind but someone with a deep-seated conservative ideology,” Schumer said, adding that if Gorsuch cannot clear the 60-vote mark, “the answer isn’t to change the rules,” but “to change the nominee.”

If Republicans, led by Sen. Mitch McConnell (R-KY), choose to scrap the filibuster–something Trump has expressed support for–they would not be without precedent. In 2013, Democrat Harry Reid, the Senate Majority Leader at the time, changed the rules for most presidential appointments, including federal judiciary nominees and cabinet appointees, to require simple majorities instead of the 60-vote threshold. Reid, who recently retired, kept the filibuster in place for Supreme Court nominees.

In undoing the filibuster, Reid and most Democrats (a few opposed the move) said it was a necessary response to what they saw as unprecedented Republican obstruction. Republicans saw it as a gross abuse of power that would come back to haunt Reid. McConnell called it a “power grab.” Indeed, many of Trump’s less-popular cabinet appointments narrowly passed the Senate, and likely would have been thwarted had the ability to filibuster been in place.

Gorsuch’s best chance at securing the nomination could come through the handful of Democrats who will be up for re-election next year in states that Trump won. But if Sen. Bob Casey (D-PA), who is up for re-election next year, is a harbinger of how his colleagues will vote, Gorsuch would fall short of 60 votes. “I have serious concerns about Judge Gorsuch’s rigid and restrictive judicial philosophy,” Casey, said on Thursday. Gorsuch, he said, “employs the narrowest possible reading of federal law and exercises extreme skepticism, even hostility, toward executive branch agencies.”

Alec Siegel

Alec Siegel is a staff writer at Law Street Media. When he’s not working at Law Street he’s either cooking a mediocre tofu dish or enjoying a run in the woods. His passions include: gooey chocolate chips, black coffee, mountains, the Animal Kingdom in general, and John Lennon. Baklava is his achilles heel. Contact Alec at ASiegel@LawStreetMedia.com.

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Did FBI Director James Comey break a federal law by sending a letter to Congress on Friday announcing the bureau’s renewed probe into Hillary Clinton’s emails? Senate Minority Leader Harry Reid (D-NV) seems to think so. Reid sent a letter of his own to Comey on Sunday accusing the director of breaking the Hatch Act, a little known but commonly enforced statute that prohibits federal employees from meddling in an election. “Through your partisan actions, you may have broken the law,” Reid wrote.

With the deepest regret, I now see that I was wrong about Mr. Comey. https://t.co/7tHfOgxvCN

— Senator Harry Reid (@SenatorReid) October 30, 2016

Congress passed the Hatch Act in 1939, disallowing federal employees to “use [their] official authority or influence for the purpose of interfering with or affecting the result of an election.” The law has been repeatedly amended since, and the Hatch Act Reform Amendments of 1993 widened the scope of partisan participation granted to federal employees.

In July, the Office of Special Counsel–the agency that enforces the Hatch Act–found Housing and Urban Development Secretary Julian Castro in violation of the law. In an April interview with Katie Couric, Castro was asked about the coming election and his endorsement of Clinton. He responded: “Now, taking off my HUD hat for a second and just speaking individually, it is very clear that Hillary Clinton is the most experienced, thoughtful, and prepared candidate for President that we have this year.” The OSC wrote that Castro violated the Hatch Act “by advocating for and against Presidential candidates.”

According to Reid, Comey’s withholding of information regarding Donald Trump’s ties to Russia, along with the timing of his letter (11 days before Election Day), was “intended for the success or failure of a partisan candidate or political group,” which is a breach of the Hatch Act and a clear “double-standard.” Reid writes:

In my communications with you and other top officials in the national security community, it has become clear that you possess explosive information about close ties and coordination between Donald Trump, his top advisors, and the Russian government–a foreign interest openly hostile to the United States, which Trump praises at every opportunity.

Aside from Reid’s statement, there is no evidence that Trump or his advisors have ties to the Russian government, though Trump has repeatedly praised Russian President Vladimir Putin–even calling on him to double down his hacking of Clinton’s emails. U.S. officials have found evidence that Russia is behind the recent hacks of the Democratic National Committee and Clinton’s Campaign Chairman John Podesta.

Harry Reid is a disgrace to American politics, among worst men ever in Senate. He can’t go soon enough, & many Democrats privately agree. https://t.co/4lCKx5pKi4

— Tom Cotton (@TomCottonAR) October 30, 2016

By alerting Congress to the emergence of new evidence in the Clinton email case–emails were found on devices belonging to Huma Abedin, Clinton’s longtime aide, and her former husband Anthony Weiner–Comey may have roused enough partisan passions to affect the presidential race, though more likely, down-ballot congressional races. His letter shifted the spotlight off Trump. It reminded voters of Clinton’s weaknesses. It provided fodder for Republican lawmakers, and buoyed Trump’s spirits. But proving Comey intended to cause any of these effects with his actions does not seem likely.

After sending his letter to Congress, Comey sent a letter to FBI employees that offered more details regarding his decision to send a fairly vague letter in the first place. He wrote:

Of course, we don’t ordinarily tell Congress about ongoing investigations, but here I feel an obligation to do so given that I testified repeatedly in recent months that our investigation was completed. I also think it would be misleading to the American people were we not to supplement the record. At the same time, however, given that we don’t know the significance of this newly discovered collection of emails, I don’t want to create a misleading impression. In trying to strike that balance, in a brief letter and in the middle of an election season, there is significant risk of being misunderstood, but I wanted you to hear directly from me about it.

President Obama appointed Comey as director in 2013, and his ten-year term is set to end in 2023. In a briefing with reporters on Monday, White House Press Secretary Josh Earnest said Obama does not think Comey is trying to influence the election. He also said Obama believes Comey is a “man of integrity and good character” and that he’s in a “tough spot.”

Alec Siegel

Alec Siegel is a staff writer at Law Street Media. When he’s not working at Law Street he’s either cooking a mediocre tofu dish or enjoying a run in the woods. His passions include: gooey chocolate chips, black coffee, mountains, the Animal Kingdom in general, and John Lennon. Baklava is his achilles heel. Contact Alec at ASiegel@LawStreetMedia.com.

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Statements by Senate Majority Leader Harry Reid (D-NV) this week may reignite a debate over a law called the Authorization for Use of Military Force Against Terrorists (AUMF).

Three days after the horrifying terror attacks of September 11, 2001, AUMF was passed by Congress. It was signed just four days later, on September 18, by President Bush. The law itself was simple enough in concept and was actually only 60-words long–an impressive feat in an era of long and frequently amended legislation. It states: “that the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons in order to prevent any future act of international terrorism against the United States by such nations, organizations, or persons.” Essentially, it allowed the President the ability to use whatever force necessary against those believed to be terrorists, harbored terrorists, or involved with terrorism in anyway. It sounds broad, but it was an understandably reactionary law to the shocking atrocities the nation had just witnessed.

That law has remained in place since then, and has been used as legal justification for a number of broad actions in the “War Against Terror.” For example, AUMF has been used as the reasoning behind expansive drone strikes and raids like the one used to capture Osama Bin Ladin in 2011.

But in the almost thirteen years since AUMF has passed, both the views of our nation, as well as our technical abilities have changed drastically. When AUMF was passed barely a week after 9/11, the concept of the “War on Terror” had just been barely introduced. And in the coming months, it of course received high support–a Gallup poll in November of 2001 put approval of sending troops to Afghanistan, partly under AUMF’s guises, at 89 percent. The same question today garners just 49 percent approval.

Other recent events, including realizations about drone capabilities and the extent of NSA spying have lessened Americans’ support for the kind of broad and vague actions that AUMF allows.

Discontent with AUMF has been simmering for a while. Various special interest lobby groups have been calling for repeal for years, and Senators and other lawmakers have at various points called for a repeal. Obama has supported, and even pushed for an end to the law and by extension, a sort of de facto end to the official “War on Terror.” Senator Tim Kaine (D-VA) has been one of the leading voices in calling for AUMF changes. Last Wednesday he said, “we are still operating in a war declared on Sept. 14, 2001. And both the Bush and Obama administrations have determined that that war can be carried out against members of al-Qaeda, against anyone who associates with affiliates or associates of al-Qaeda, no matter when those associates pop up … so long as the al-Qaeda or affiliated organizations have violent intentions against the U.S. or coalition partners. That’s sort of a vague phrase.”

And most recently, one of the nation’s top lawmakers has stated that he also thinks that changes are warranted to AUMF. Senate Majority Leader Harry Reid is supporting changes to AUMF.

In the interview with Buzzfeed earlier this week, he stated in regards to AUMF, “I definitely think its something we should definitely take a look at. I think 9/11 [was] a long time ago, and it’s something that needs to be looked at again. I have no problem with that.”

However, Reid didn’t go into details about what changes exactly he thinks are warranted to AUMF but just that they need to be considered. From the language he used, it seems as though he’s relatively confident that a change needs to be made to limit the power of AUMF.

With Reid weighing in, public opinion turning, and other politicians getting involved in the it certainly seems like the issue of changes to AUMF will be firmly on the national stage in the upcoming 2014 midterm elections.

[The Huffington Post]

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Anneliese Mahoney (@AMahoney8672) is Lead Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

Feature image courtesy of [Debra Sweet via Flickr]

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Reexamination of AUMF: Potential End to the War on Terror appeared first on Law Street.

Attention all young lawyers: do you have any ambitions of making it to the bench? Or maybe another plum political position? Is that the kind of career you want? If you answered no to those questions, you can stop reading here. You can go on with your day, and you don’t need to heed the warning I’m about to give.

But if you answered yes, there’s something you really need to consider. Watch everything you do closely, because as we learned in the Senate this week, participating in a single controversial case has the potential to invalidate your entire career.

Debo Adegbile, a well respected Civil Rights lawyer who was nominated by President Barack Obama to head the Department of Justice’s Civil Rights Division, was rejected by the Senate yesterday. His nomination was blocked through a procedural vote that fell 52-47. The reason given for his rejection was the fact that he was involved in an appeal to get Mumia Abu-Jamal, a man who was found guilty of murdering a cop in Philadelphia, off death row. That involvement was enough to render the rest of his qualifications utterly irrelevant.

Here are the top 5 reasons why Debo Adegbile’s rejection by the Senate was dead wrong.

5. His involvement in the Abu-Jamal case was pretty minor. 

Debo Adegbile worked for the NAACP’s Legal Defense and Education Fund — a widely respected institution. The NAACP routinely takes on controversial cases. This should come as a surprise to no one.

The Abu-Jamal case has been contentious for years, receiving both national and international condemnation and applause. Abu-Jamal’s supporters have alleged that the trial was marred by flawed jury selection and instruction and lack of impartiality.

Now the NAACP, not Adegbile himself, but the institution for which he worked, became involved in the appeals process in the Abu-Jamal case in 2006, roughly 25 years after Abu-Jamal’s original conviction. Adegbile didn’t become involved in the case until 2008, when he signed onto a brief. When the NAACP became more involved in 2011, eventually working to get Abu-Jamal’s death sentence overturned in favor of life in prison, Adegbile wasn’t even on the defense team. He was barely involved with this case.

4. Adegbile was doing his job.

Let’s also consider what the NAACP was arguing, what the brief that Adegbile was tangentially involved with consisted of. They were arguing that Abu-Jamal did not receive due process of law — not that he was innocent. They didn’t argue that the conviction was wrong, they argued that the sentencing was wrong. As Slate writer Dahlia Lithwick so perfectly put it, “What he did do — which fits pretty readily within the historic mandate of the NAACP’s Legal Defense Fund — was to help ensure that the American criminal justice system, and especially the death penalty, is administered fairly and constitutionally.” By being even slightly involved in this case, Adegbile was doing the job that he agreed to do at a respected institution with a worthy cause.

Furthermore, Adegbile was doing his job as a lawyer. Attorneys pledge to uphold the constitution, to make sure that clients get fair treatment, and have a legal obligation to do so. Lawyers, and their clients, have the right, if not the obligation, to question cases in which there is a possible loss of liberty and legal protections.

I’m not saying that any lawyer should get a free pass for cases they take, or that every lawyer would be qualified for the position for which Adegbile was nominated. But it’s pretty clear that Adegbile was doing his job, for a respected institution, with a valid legal argument, on a case which eventually was found to have been unfair to Abu-Jamal. And he’s now being punished for that.

3. Every lawyer has some controversial cases. 

I am pretty sure it’s impossible to be a prominent lawyer in the United States without at some point being involved with a controversial case. In fact, prominent cases are often the catalyst for becoming a prominent lawyer. So let’s check out arguably the most prominent legal figure in the United States right now: Chief Justice of the Supreme Court John G. Roberts.

When Roberts was in private practice, he helped represent a convicted killer in Florida named John Ferguson, who killed eight people. He put in 25 pro bono hours for his work on the case, and it never came up in his confirmation hearings, and rightly so.

And Roberts isn’t the only one. Controversial cases abound, and if lawyers do their due diligence, and make appropriate legal arguments, such cases shouldn’t hamstring them and prevent them from ever serving in a political position.

2. The vote was a transparent political move. 

With the way that Congress has been behaving recently, this is almost a useless point, but I’m going to make it anyway. Adegbile lost 52-47. Now obviously all the Republicans voted against him — but so did eight Democrats: Harry Reid (Nev.), Chris Coons (Del.), Bob Casey (Pa.), Mark Pryor (Ark.), Heidi Heitkamp (N.D.), Joe Manchin (W.V.), Joe Donnelly (Ind.) and John Walsh (Mont.).

Of those eight, only three are up for reelection in 2014. But all eight of them live in relatively purple or red states. The only exception would be Coons, but it’s important to remember that his state falls within Philadelphia’s media market, where Abu-Jamal’s crime occurred. The Democrats who voted against Adegbile may have done so from their consciences, that really may be the case. But if they didn’t, and if this was a political move, they deserve ire.

And it’s looking like that might be true. A senior aide to one of the Senators who voted against Adegbile anonymously stated, “It’s a vote you didn’t have to take. It’s a 30-second ad that writes itself.”

1. The message this vote sends to lawyers. 

The failed nomination of Adegbile for, as stated by the dissidents, his involvement in the Abu-Jamal case says a lot. If he had been rejected based on his qualifications, fine. That wouldn’t bother me in the slightest. But let’s be very clear about this: he was rejected because he did his job as a lawyer.

Watch this video of Iowa Senator Tom Harkin exclaiming his disgust over the decision. It’s long, but it’s worth it, because it sums up this entire issue near perfectly.

What does that mean for our young ambitious attorneys, our best and brightest, our potential nominees in 20 years? Well, this rejection sends them the message to watch their backs. To stop and think before they take every single case. It requires them to anticipate the future. And it tells them not to take chances, not to fight for the cases they’re passionate about. It tells them to stop taking the actions that make our legal system so great. That’s what it says. So future lawyers, current lawyers, potential lawyers: heed my warning. Watch what you do, or pay a price in the future.

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Anneliese Mahoney (@AMahoney8672) is Lead Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

Featured image courtesy of [Leadership Conference on Civil and Human Rights via Flickr]

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post What the Senate’s Rejection of Debo Adegbile Teaches Future Lawyers appeared first on Law Street.

In a recent speech at the Center for American Progress, Senator Harry Reid shared his belief that the use of the filibuster has become an abused and exploited status quo in the Senate. He stated, “I love the Senate. But right now, the Senate is broken and needs to be fixed.”

The reason is simple: since the mid 1900s, the filibuster has been abused as a powerful tool to halt legislation. Essentially, if a Senator does not like the legislation, the wrath of the filibuster is relinquished.

Just look at Congress’s approval ratings. You know there is problem when the so-called “Do Little Congress” of 1947-1948 passed more legislation than 112th & 113th Congresses. While some blame this on party polarization, which is partly true, it really boils down to is the abusive nature of the filibuster.

I think it is safe to say that the general public absolutely despises the filibuster. But the filibuster was once a strategic tool that improved the democratic process.

When the filibuster was used in the “unwritten constitution” during the 1850s, it was intended to function as a means to give the minority party a voice. Essentially, a senator would be able to stop a piece of legislation, discuss it, reform it, or get rid of it entirely. From 1800s to the early 1900s the filibuster was rarely used–only utilized in dire situations with significant legislation. One notable use of the filibuster took place in 1841 when Senator William King successfully filibustered Senator Henry Clay’s attempt to recharter the national bank. Yet when looking at the present, it is clear that use of the filibuster has changed significantly since its inception.

In the early 1970’s, the filibuster took a turn for the worst, when Senator Mike Mansfield and Senator Robert Byrd introduced a new legislative process that allowed the Senate to “multi-task” during a filibuster. It was contingent on the ability to work on two tracks: a senator can filibuster legislation on one track, while the Senate as a whole functions as usual on the other track. In theory, this would improve the efficiency of Congress. Instead, the ability to threaten a filibuster, sometimes referred to as a “silent filibuster” was born.

Since that drastic change to the senate legislative process, the filibuster has become a negative trend, resulting in an unproductive congress and a disgruntled American populace. This poses the question; where is the change?

Senate Majority leader Harry Reid expressed the necessity for reform, proposing that the Senate would change the rules to require a simple majority vote to advance executive nominees, contrasting with the current 60-vote threshold. This was expressed in his nuclear option, quoted in Politico. “This is a moment in history when circumstances dictate the need for change” Reid said at the Center for American Progress. Thanks for realizing this Senator Reid. It’s better late than never.

[Huffingtonpost] [Washingtonpost] [Politico]

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Featured image courtesy of [Martha Soukup via Flickr]

Zachary Schneider

Zach Schneider is a student at American University and formerly an intern at Law Street Media. Contact Zach at staff@LawStreetMedia.com.

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