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      Seditious conspiracy is rarely proven. The Oath Keepers trial is a litmus test

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      Seditious conspiracy is rarely proven. The Oath Keepers trial is a litmus testExtensive planning and tangible action by the far-right militia group’s members provide ‘strong grounds’ for case, experts say Later this year the founder of the far-right Oath Keepers militia and nine alleged co-conspirators will be the first to face trial on seditious conspiracy charges related to the insurrection at the US Capitol.Outrage as Newt Gingrich says Capitol attack investigators could be jailedRead moreThe charges are significant because they allege that the January 6 attack went beyond disorderly conduct and assaults on law enforcement, instead constituting an organized and violent attempt to stop the democratic transfer of power.But because sedition charges so rarely go to trial, there isn’t a great deal of precedent for how such trials proceed, experts say. And US prosecutors have a checkered history in securing sedition convictions. “It’s been used in ways that have been absurd and has been used in ways that were slam dunks,” said Joshua Braver, an assistant professor of law at the University of Wisconsin.But unlike some previous uses of seditious conspiracy, many experts say the case against the Oath Keepers is strong. “This case is different. This case is a plan that was executed and the federal government is on much stronger grounds,” Braver said. “If anything is seditious conspiracy, this is it.”The checkered history of seditious conspiracy trialsSeditious conspiracy is a broad statute that concerns attempts to overthrow the government, levy war against it or prevent, hinder or delay the execution of any law. It also can be applied in cases where suspects seize any government property and carries up to 20 years in prison if convicted.Partly because seditious conspiracy allegations carry so much political weight, prosecutors have generally been hesitant to bring such charges in the past.“Seditious conspiracy charges are rarely used in American jurisprudence,” said Jeffrey Ian Ross, a criminologist and expert on political crime at the University of Baltimore. Prosecutors can be wary of issuing such charges, even in cases that may fall under its broad statute, he added.The last successfully prosecuted seditious conspiracy case came in the mid-1990s, when authorities charged Islamist extremist Sheikh Omar Abdel-Rahman and nine co-conspirators with seditious conspiracy. Prosecutors alleged that Abdel-Rahman and his followers plotted to bomb the United Nations, the FBI building and several other landmarks around New York City.During the trial, prosecutors presented the jury with speeches of Abdel-Rahman and a recording from an FBI informant in which Abdel-Rahman discussed attacking military installations. The defense, meanwhile, argued that Abdel-Rahman’s speech was constitutionally protected and that he never directly planned attacks. After a week of deliberation, jury members convicted the group of seditious conspiracy along with numerous other charges. Abdel-Rahman died in prison in 2017.Decades before the Abdel-Rahman trial, prosecutors secured a seditious conspiracy conviction against Puerto Rican nationalists who stormed the Capitol building. The Puerto Rican independence activist Lolita Lebrón and three accomplices entered the House floor and fired dozens of bullets around the chamber, wounding five legislators. The group, along with numerous people charged as co-conspirators, were convicted of seditious conspiracy and spent over two decades in jail until Jimmy Carter commuted their sentence in 1979.Other seditious conspiracy cases have fallen apart once they have gone to trial, including the most recent attempt at the charge in 2012. Prosecutors alleged that nine members of the Christian far-right Hutaree militia committed seditious conspiracy through a plot to kill a police officer and then attack their funeral in order to incite an uprising against the government. The defense successfully argued that militia members’ discussion of violent rebellion was essentially fantastical boasting, protected by the first amendment and that any specific plots were instigated by an FBI informant who had infiltrated the group. The militia members were ultimately acquitted of sedition, albeit with several pleading guilty to less severe weapons charges.A 1988 seditious conspiracy trial involving 13 white supremacists accused of plotting to overthrow the government and assassinate a federal judge provided an even more severe cautionary tale. Prosecutors in the case cut a plea deal with a white supremacist leader, Glenn Miller, who potentially faced decades in prison for other crimes, agreeing to reduce his charges in exchange for him testifying in the sedition trial. But Miller’s testimony turned out to be weak and unreliable, leading to an all-white jury acquitting all 13 white supremacists. The national chaplain of the Ku Klux Klan hugged several defendants following the verdict and touted it as a victory for white nationalism.In the years after the trial, Miller was released from prison and once again became active in the white supremacist movement despite being in the federal witness protection program. In 2014, he killed three people, including a 14-year-old boy, at a Jewish community center and retirement home in Kansas. He died in prison last May.The case against the Oath KeepersThe case against Rhodes and the Oath Keepers is more straightforward than past seditious conspiracy charges against the far right, experts say, both because there appears to be extensive evidence of planning before the Capitol attack and because numerous members took tangible actions to breach the Capitol.Even Rhodes, who is not believed to have actually stormed the building, is alleged to have plotted to bring weapons to the area and coordinate militia movements.In the weeks before the insurrection, Rhodes allegedly purchased tens of thousands of dollars worth of weapons and began communicating to other Oath Keepers in an encrypted group chat. “We aren’t getting through this without a civil war,” he messaged days after the presidential election. One Oath Keeper admitted as part of a plea deal last year that he brought an M4 rifle to a Comfort Inn hotel near the Capitol, while Rhodes and others allegedly discussed “quick reaction force” teams that could move into Washington DC with firearms. Once inside the Capitol, prosecutors state in their indictment that one group of Oath Keepers moved in a military “stack” formation and went in search of the speaker of the House, Nancy Pelosi.The Oath Keepers “coordinated travel across the country to enter Washington, DC, equipped themselves with a variety of weapons, donned combat and tactical gear, and were prepared to answer Rhodes’s call to take up arms”, the charging documents against Rhodes state.Rhodes this week pleaded not guilty to the charges and has repeatedly denied that he has done anything wrong or broken any laws. After federal agents used a warrant to seize his phone in May last year, Rhodes stated that he sat for a nearly three-hour interview with authorities and claimed he had nothing to hide. He claims that Oath Keepers who entered the Capitol went “totally off mission” and that he was only there to prevent his militia members from getting into trouble. At a Texas rally in the months following the insurrection, he told a crowd that he may go to jail for “made-up crimes”.Rhodes was denied bail, in part because the federal judge overseeing his detention hearing stated that the militia leader had installed “elaborate escape tunnels” on his property and posed a flight risk.As one of the most prominent leaders in the far-right movement over the past decade, Rhodes’s trial is set to be the highest-profile case so far in the investigation and one of the most significant domestic extremism cases in years.More than 700 people are charged with crimes related to the insurrection, but the majority of those cases have involved less complex charges that don’t require proving the type of coordination and planning that seditious conspiracy indictments involve. Meanwhile, most of the more than 150 people who have so far pleaded guilty in the investigation have received relatively short sentences or no jail time at all.“They’ve gone for the low-hanging fruit first and things are going to get more interesting as the days go by,” Ross said.TopicsUS Capitol attackUS politicsWashington DCLaw (US)featuresReuse this content More

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      Who has more influence on supreme court: Clarence Thomas or his activist wife?

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      Who has more influence on supreme court: Clarence Thomas or his activist wife?Justice’s wife, Ginni Thomas, sits on the board of conservative group that backs lawsuit seeking to end affirmative action, raising concerns it could present potential conflict of interest Clarence Thomas, the hardline conservative supreme court justice, is facing calls for his recusal in the case over race-based affirmative action in college admissions that the court agreed to hear this week.US supreme court will hear challenge to affirmative action in college admissionRead moreThe case, which is being brought against Harvard and the University of North Carolina, is the latest potential conflict of interest involving Thomas and his wife Virginia Thomas. Ginni, as she is known, is a prominent rightwing activist who speaks out on a raft of issues that frequently come before the nation’s highest court.A one-person conservative powerhouse, she set up her own lobbying company Liberty Consulting in 2010. By her own description, she has “battled for conservative principles in Washington” for over 35 years.The challenge to the two universities’ race-conscious admissions policies is being brought by Students for Fair Admissions (SFFA). Its leader Edward Blum has been a relentless opponent of affirmative action and voting rights laws.His argument that race-based affirmative action is a quota system that discriminates against Asian students is framed with the supreme court’s newly emboldened rightwing majority in mind. A central player in that new six-justice conservative supermajority is Clarence Thomas, who is the longest-serving of the justices and at 73 will be the oldest once Stephen Breyer retires.Justice Thomas’s influence has soared in recent months with the rightward shift of the court following Donald Trump’s three nominations, to the extent that some pundits now dub him the unofficial chief justice of the court.SFFA’s lawsuit seeking to strike down affirmative action has received the enthusiastic backing of the conservative National Association of Scholars. It filed an amicus brief in support of the suit, accusing Harvard admissions officials of being prejudiced against Asian students and stereotyping them as “uninteresting, uncreative and one-dimensional”.Ginni Thomas sits on the advisory board of the National Association of Scholars. Observers are concerned that her position with a group that has intervened in the affirmative action case could present appearances of conflict of interest.Noah Bookbinder, president of the government ethics watchdog Crew, told the Guardian that while supreme court regulations may not legally require Thomas to recuse himself, there were serious questions to answer.“Ginni Thomas is an advisory board member of an organization that has taken a very specific position on a case in front of her husband. That will make it hard for the public to be confident that he’s going to be totally unbiased.”Bookbinder said that in the circumstances “the better course of action would be for him to recuse or for her to cease her involvement in that organization.”The potential appearance of a conflict of interest over the Harvard case was noted in a recent investigation by the New Yorker reporter Jane Mayer that takes a deep dive into the overlapping interests of the couple. The article chronicles in devastating detail the many instances where Ginni’s political activism appears to present problems for the image and integrity of the court.“Ginni Thomas has held so many leadership or advisory positions at conservative pressure groups that it’s hard to keep track of them,” Mayer concluded. “Many, if not all, of these groups have been involved in cases that have come before her husband.”In the most troubling recent instance, Ginni Thomas lent her voice to Trump’s big lie that the 2020 presidential election was stolen from him. She was vocal on the subject in the buildup to the violent insurrection at the US Capitol on January 6 last year that led to the deaths of five people and left more than 100 police officers injured.On the morning of the January 6 itself, Mark Joseph Stern of Slate reported, Thomas posted on her Facebook page words of encouragement for the “Stop the Steal” marchers in Washington. “LOVE MAGA people!!!!”, she said., “GOD BLESS EACH OF YOU STANDING UP or PRAYING!”Soon after the insurrection, Thomas was forced to apologise to her husband’s former supreme court law clerks for comments she made privately to them that appeared to lament Trump’s defeat in the 2020 election. The remarks were sent to a private email list called “Thomas Clerk World”.In the emails, disclosed by the Washington Post, she wrote: “Many of us are hurting, after leaving it all on the field, to preserve the best of this country. I feel I have failed my parents who did their best and taught me to work to preserve liberties.”An even more direct intervention in the politics surrounding Trump and the big lie was made last December when Thomas joined 62 other influential conservatives in signing an open letter to the leader of the Republicans in the House of Representatives, Kevin McCarthy. It urged him to expel the Congress members Liz Cheney and Adam Kinzinger from the Republican party.Their sin, the letter writers opined, was to serve on the House committee investigating the January 6 insurrection. They described the committee as an “overtly partisan political persecution that brings disrespect to our country’s rule of law [and] legal harassment to private citizens who have done nothing wrong”.Since the Capitol insurrection, the Department of Justice has arrested more than 725 defendants in relation to the storming of the building. Federal prosecutors have charged 225 with assaulting, resisting or impeding police officers, including over 75 charged with using a deadly or dangerous weapon or causing serious bodily harm to an officer.Last week the supreme court rejected attempts by Trump to block the January 6 committee from acquiring his White House records from the time of the attack. There was only one dissent from the bench to that 8-to-1 decision: it came from Clarence Thomas.“Ginni Thomas’s activities are unprecedented in supreme court history in terms of a spouse engaging in issues that are constantly before the court,” said Gabe Roth, executive director of Fix the Court, a non-partisan group which advocates supreme court reform. “The appearance of impropriety is in itself impropriety – all the supreme court has is the trust of the public, and once you chip away at that you are in trouble.”Roth added that Thomas’s comments in the days before January 6 were clearly problematic given her husband’s vote on the Trump documents. “It’s possible that the January 6 committee has emails between Ginni Thomas and administration officials from that day or the days leading up to it given how vocal she was. That’s definitely a place where Justice Thomas should have recused himself.”Should the rightwing majority around Thomas use its newfound muscle to ban affirmative action, as is widely predicted, it would mark the negation of more than 30 years of settled constitutional law on the matter. What lies ahead bears strong resemblance to Roe v Wade, the landmark 1973 ruling that made abortion legal which the court is probably poised to weaken or even overturn outright.Mayer points out in the New Yorker that an amicus brief was filed in the supreme court case challenging Roe by Robert George who also sits on the advisory board of the National Association of Scholars alongside Ginni Thomas.Roth told the Guardian that a simpler solution to the full recusal of Clarence Thomas from the affirmative action case might exist. That would be to remove the National Association of Scholars’ amicus brief.“There is an easy way to deal with this perceived conflict of interest – strike the amicus brief,” he said.It is established practice in all federal appeals courts, though not in the supreme court, that amicus briefs brought by anybody with a connection to a judge hearing a case are routinely thrown out.The president of the National Association of Scholars, Peter Wood, told the Guardian that he knew of no conflict of interest relating to Thomas’s position on the advisory board. “Ms Thomas’s role is to provide advice to NAS in response to questions I put to her about NAS policy and initiatives. I have never discussed with her any NAS matter that was likely to come before the supreme court,” he said.TopicsUS supreme courtUS politicsLaw (US)The far rightRacefeaturesReuse this content More

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      Biden to nominate first Black woman to sit on supreme court by end of February

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      Biden to nominate first Black woman to sit on supreme court by end of FebruaryUS president announced plans for court at White House event marking retirement of Justice Stephen Breyer01:04Joe Biden intends to announce his nominee to become the first Black woman to sit on the US supreme court by the end of February, the president said on Thursday at a formal White House event to mark the retirement of the liberal-leaning justice Stephen Breyer.Lauding the retiring justice as a “beacon of wisdom” and a “model public servant at a time of great division in this country”, Biden pledged to replace him with someone worthy of Breyer’s “legacy of excellence and decency”. He said the nominee would have “extraordinary qualifications, character, experience and integrity, and that person will be the first Black woman ever nominated to the United States supreme court.”He added: “It is long overdue in my view.”Biden’s confirmation that he is still studying the résumés of candidates and has yet to make his pick will do little to settle nerves among progressives still smarting from Donald Trump’s three supreme court appointments. Many Democrats want the president to emulate the warp speed with which the Trump administration drove through the confirmation of Amy Coney Barrett in less than six weeks following Ruth Bader Ginsburg’s death in September 2020.The Washington Post, citing an anonymous source, said that the majority leader in the Senate, Chuck Schumer, is aiming for a similar timeline.Replacing Breyer with a like-minded justice is seen by many Democrats as critical in preserving the already beleaguered rump of liberals on the bench. The retiring justice is one of only three such individuals on the nine-justice court, and they are so outnumbered that the country now faces drastic changes in several key areas from abortion to guns and affirmative action.Despite the pressure for haste among his party’s members, Biden insisted that he would be “rigorous” in choosing the nominee. He would listen to advice from senators and meet candidates, indicating a selection process that is likely to take weeks not days.For his part, Justice Breyer is hoping that his successor can be confirmed and in place within the next six months. In his formal retirement letter to Biden, he said he would step down at the start of the court’s summer recess in June or July, “assuming that by then my successor has been nominated and confirmed”.Speaking in the Roosevelt Room of the White House, Breyer made a lyrical paean to American unity. Recalling a speech he likes to deliver to school students, he said that the US was an experiment that is still going on.“My children and grandchildren will determine whether the experiment will last, and as an optimist I’m pretty sure that it will,” he said.Biden first committed himself to promoting a Black woman to the nation’s highest court at a presidential debate against Trump during the 2020 presidential campaign. The promise was reportedly made after intense prodding by the prominent South Carolina Democrat Jim Clyburn, who endorsed Biden the following day in a move that helped propel him into the White House.Though the race is now on to confirm Breyer’s replacement before the court’s term reaches its summer recess, there are large hurdles ahead. Looming over the proceedings is the evenly divided 50-50 split in the US Senate, the chamber that will preside over the confirmation hearings of whomsoever Biden picks.The Democrats hold the casting vote with Vice-President Kamala Harris, but they will need to keep all 50 senators on board during the process. That is a challenge that has eluded the Biden administration in recent months with the high-profile defections of Joe Manchin and Kyrsten Sinema over vital issues ranging from the president’s Build Back Better legislation to overcoming the filibuster to secure essential voting rights reforms.To reduce any risk of Democratic splits, Schumer will also be looking to lure Republican moderates such as Susan Collins from Maine and Lisa Murkowski from Alaska to their side.Then there are the nationwide midterm elections in November which will inevitably place a partisan political pall over the confirmation process. Republicans have already begun to test out lines of attack, predicting that Biden’s nominee will be, in the words of the senator from Florida Rick Scott, “a radical liberal with extremist views”.Rightwing Twitter feeds have also lit up with claims that Biden’s choice of a Black woman would constitute unlawful sex and race discrimination. Those playing the affirmative-action card were forgetting that in 1980 Ronald Reagan pledged to pick the first woman to sit on the nation’s highest court, appointing Sandra Day O’Connor the following year.Republican leaders will be hoping that by portraying Biden’s choice as a culture wars threat to American values they will help to drive out the party’s base to the polling booths on 8 November.Similar calculations will be at play on the Democratic side. Party strategists will want to leverage the nomination of a Black woman as an energizing factor at the polls for important elements of its electorate who include African Americans, women and progressive voters. TopicsUS supreme courtJoe BidenLaw (US)US politicsnewsReuse this content More

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      The leading female contenders to succeed Breyer on supreme court

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      The leading female contenders to succeed Breyer on supreme court Justice Stephen Breyer’s retirement allows Biden to make history by appointing its first Black womanThe liberal supreme court justice Stephen Breyer is retiring and Joe Biden has said he will stand by a previous promise to nominate a Black woman to America’s highest legal body.Stephen Breyer to retire from supreme court, giving Biden chance to pick liberal judgeRead moreAt 83 years old, Breyer is the oldest justice of the court and his retirement will give Biden his first seat to fill on the supreme court, which is currently conservative-leaning by six to three. Replacing Breyer won’t allow Biden to change that dynamic but it does allow him to ensure the liberal contingent is not reduced further and make history by appointing its first Black woman.Here are some of the women considered leading contenders for the seat:Ketanji Brown JacksonBorn in Washington DC and raised in Miami, Florida, Jackson has been a judge of the US court of appeals for the DC circuit since June 2021 after the 51-year-old Harvard graduate replaced the attorney general, Merrick Garland.The DC circuit has historically been seen as a stepping stone to the supreme court. From 2010 to 2014, Jackson served as vice-chair of the United States sentencing commission, during which the commission significantly reduced sentences for numerous drug offenders.Leondra KrugerKruger, a native of Los Angeles, is an associate justice of the supreme court of California. The 45-year-old was previously the acting principal deputy solicitor general under the Barack Obama administration.Supreme court justice Elena Kagan once called Kruger “one of the best advocates in the Department of Justice”. Kruger has argued 12 cases in front of the supreme court. She has previously described her approach to the law as one that “reflects that fact that we operate in a system of precedent”.J Michelle ChildsChilds is currently serving as a district judge of the US district court for the district of South Carolina. Appointed by Obama in 2009, the 55-year-old Detroit native has also been nominated by Biden for a seat on the DC circuit court of appeals. Childs was also the first Black woman to become a partner at Nexsen Pruet, LLC, one of South Carolina’s major law firms.She has served as the deputy director in the labor division at South Carolina’s department of labor, licensing and regulation. Congressman Jim Clyburn, a close ally of Biden, is fiercely supports Childs and has previously pushed the Biden administration to nominate her as the supreme court’s next liberal justice. “She is the kind of person who has the sort of experiences that would make her a good addition to the supreme court,” Clyburn said.Wilhelmina WrightWright is a district judge of the US district court for the district of Minnesota. A favorite of Senator Amy Klobuchar of Minnesota, the 58-year-old is also Minnesota’s first African American justice. Wright has previously said that fairness, impartially and respect for the rule of law have been her “lodestar”, adding that she “give[s] no consideration to whether I agree or disagree with a party”. She has also emphasized the importance of diversity in the judicial system, at one point writing: “I believe it would undermine the public’s trust and confidence in the judiciary if there were no judges who are women or judges of color.”Eunice LeeSince August 2021, Lee, 52, has been a judge of the US court of appeals for the second circuit after being nominated by Biden. Lee has worked at the office of the appellate defender in New York City from 1998 to 2019. In addition, from 2019 until her bench appointment, Lee was an assistant federal defender in the appeals bureau of the federal defenders of New York.Candace Jackson-AkiwumiJackson-Akiwumi is currently a US circuit judge of the US court of appeals for the seventh circuit since July 2021. Jackson-Akiwumi is the first judge appointed to the seventh circuit who has a background as a federal public defender.Nominated by Biden in April 2021, Jackson-Akiwumi was also a staff attorney at the federal defender program in the northern district of Illinois from 2010 to 2020 where she represented indigent people who were accused of federal crimes. From 2020 to 2021, Jackson-Akiwumi served as a partner at Zuckerman Spaeder, a DC-based law firm where she focused on civil litigations and white-collar criminal defense.Sherrilyn IfillIfill is the president and director-counsel of the Legal Defense and Educational Fund at the National Association for the Advancement of Colored People (NAACP). Before joining LDF as an assistant council in 1988, the 59-year-old New York native was a fellow at the American Civil Liberties Union.Ifill taught civil procedure and constitutional law for over two decades and pioneered numerous law clinics, including one of the first in the country that focused on challenging legal obstacles to the re-entry of ex-offenders. In 2021, Time named her one of the world’s 100 most influential people.TopicsUS supreme courtLaw (US)Biden administrationJoe BidenUS politicsnewsReuse this content More

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      Stephen Breyer to retire from supreme court, giving Biden chance to pick liberal judge

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      Stephen Breyer to retire from supreme court, giving Biden chance to pick liberal judgeBreyer, 83, had been under pressure from progressives eager to fill a seat on the supreme court while the Democrats hold power Justice Stephen Breyer will retire from the supreme court, according to widespread media reporting on Wednesday, which, if confirmed by the court, will provide Joe Biden with the opportunity to fulfill a campaign pledge by nominating the first Black woman judge to the bench.Such a choice would be a milestone and bolster the liberal wing of the bench, even as it weathers a dominant conservative super-majority achieved under the Trump administration.Breyer, 83, had been under pressure from progressives eager to give the new president the chance to fill a seat on the court while the Democrats hold power in the White House and Congress, including a wafer-thin margin in the Senate, which would have to confirm Biden’s nominee.Later in the year Biden would face the threat of any picks of his being blocked if the Republicans win back control of the US Senate in November’s midterm elections.California-born Breyer was nominated by Bill Clinton in 1994 and confirmed with strong bipartisan support in the Senate at the time.As news of Breyer’s retirement came in, the White House distanced itself from the development in an apparent attempt to signal that Biden had not pressured the justice.Biden, meeting private sector CEOs at the White House to talk about his legislative agenda, declined to comment on the retirement per se, saying: “There have been no announcements from Justice Breyer.””There have been no announcements from Justice Breyer,” President Biden says. “Let him make whatever statement he’s going to make, and I’ll be happy to talk about it later.” He jokes to a CEO in the meeting with him right now, “Do you want to go to the Supreme Court?”— Kaitlan Collins (@kaitlancollins) January 26, 2022
      But there were no denials from the White House or the court.At the White House daily briefing, the first question from the media to the press secretary, Jen Psaki, was whether Biden intends to follow through on his campaign promise to nominate a Black woman to the court, and she said: “The president has stated and reiterated his commitment to nominating a Black woman to the supreme court and certainly stands by that.”Gabe Roth, executive director of Fix the Court, which advocates reform of the federal judiciary, told the Guardian that Breyer’s move was “a long time coming. The risk that an 83-year-old would hang on only to see himself replaced by a Republican president and Republican Senate was growing exponentially with every passing year.”Roth added: “The supreme court is not an apolitical body, and if you care about protecting your legacy then you retire when a like-minded president is in office.”Breyer is perhaps the least well-known of the current justices outside legal circles, chiefly because he is regarded as a pragmatist and has spent more than two decades at the moderate end of the liberal wing, actively eschewing partisanship.He is the most senior member of the court’s liberal minority following Ruth Bader Ginsburg’s death in 2020 at 87.Despite what had appeared to be resistance to pressure to retire quickly in the Biden administration, Breyer is calling it a day.Among names being circulated, the frontrunner on Wednesday appeared to be Ketanji Brown Jackson, an appeals court judge in Washington DC. Other contenders for the seat are the California supreme court justice Leondra Kruger, US district court judge J Michelle Childs and several others. Despite no explanation from Breyer when the news broke, there are clues to his possible thinking. In an interview with the New York Times last August he quoted his late peer on the bench, Antonin Scalia, who once told him: “I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years.”Whatever his rationale, there is no doubt that he had warnings ringing in his ears from liberals, building last summer, that he shouldn’t hang on to his seat and risk having Republicans dictate his replacement.That happened with Ginsburg, who resisted years of such hints, including from Barack Obama when he was president, and outright lobbying.She died in the last weeks of the 2020 election campaign, affording the Republican president Donald Trump his third supreme court pick. The Senate, led at the time by the GOP’s Mitch McConnell, rushed through Ginsburg’s replacement, the ultra-conservative Amy Coney Barrett, boosting conservatives to a 6-3 majority on the bench.McConnell said last June that it was “highly unlikely” he would allow Biden to fill a vacancy if Republicans had regained Senate control.But the court’s shift to the right began five years ago, when Antonin Scalia died suddenly and Senate Republicans refused to process Barack Obama’s nomination of Merrick Garland.Had Garland, now Biden’s attorney general, been confirmed, it would have given the court a majority appointed by Democratic presidents for the first time in 50 years.Instead, the seat remained empty, Trump unexpectedly won the presidency and his first of three picks, Neil Gorsuch, joined the court in April 2017.A year later the court’s “swing vote”, Justice Anthony Kennedy, retired and Trump put Justice Brett Kavanaugh in his seat.Kennedy’s retirement essentially put Chief Justice John Roberts at the ideological, though right-leaning, center of the court. He has tried to combat rising public perceptions of the court as merely a political institution.Erwin Chemerinsky, dean of the University of California at Berkeley School of Law, had earlier this year written an opinion piece for the Washington Post calling on Breyer to retire sooner rather than later.In the American Bar Association Journal, however, Chemerinsky also paid tribute to Breyer’s “pragmatic approach to judging that looks more to real-world effects than abstract ideology”.And he pointed to important positions taken by Breyer.These included a majority decision in Whole Woman’s Health v Hellerstedt in June 2016 against severely restricting abortion in Texas. And a dissent in 2015’s Glossip v Gross case, where Breyer said it was “highly likely that the death penalty violates the eighth amendment” to the US constitution which prohibits cruel and unusual punishment.Breyer was born in San Francisco and raised in a Jewish family. He studied at Stanford University, Magdalen College, Oxford and Harvard Law.Hillary Clinton called Breyer’s decision “admirable”.Thank you to Justice Breyer for 30 years of distinguished service on the bench, and for his admirable decision to retire now. We are grateful for your career dedicated to fairness and justice for all.— Hillary Clinton (@HillaryClinton) January 26, 2022
      The Senate majority leader, Chuck Schumer, voiced optimism that Biden’s pick will swiftly win confirmation.SCHUMER in a statement: “President Biden’s nominee will receive a prompt hearing in the Senate Judiciary Committee, and will be considered and confirmed by the full United States Senate with all deliberate speed.”— Daniella Diaz (@DaniellaMicaela) January 26, 2022
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      Battered Biden gets chance to change political narrative as Breyer retires

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      Battered Biden gets chance to change political narrative as Breyer retiresAnalysis: president faces high expectations as he prepares make one of his most consequential decisions In his spare time, Justice Stephen Breyer enjoyed taking the bench at humorous “mock trials” of characters such as Macbeth and Richard III for Washington’s Shakespeare Theatre Company. The case usually turned on epic battles over succession.Now Washington is about to be consumed by the question of who will inherit Breyer’s crown following his reported decision to retire from the US supreme court. At 83, he is its oldest member, one of three liberals outnumbered by six conservatives.This is a perfectly timed political gift for Joe Biden, aware that choosing a supreme court justice is one of the most consequential decisions that any president can make.After a year in the White House, Biden was limping with a stalled legislative agenda, a tenacious pandemic and Vladimir Putin threatening Ukraine. He was a tired brand in desperate need of a relaunch, a tough ask at the age of 79.Biden ‘stands by’ pledge to nominate Black woman to supreme court, White House says – liveRead moreBreyer has provided it, instantly changing the conversation. “This has to feel like a political elixir right now,” observed Chuck Todd, host of MSNBC’s Meet the Press Daily show.A vacancy on the highest court enables Biden to rally the Democratic base and begin to cement a legacy that, despite early ambitions, had recently looked to be in jeopardy. Although the ideological balance of the court will not change, Biden could choose a young liberal who will serve for decades.The Senate, which must approve his choice, is divided between 50 Democrats and 50 Republicans with Vice-President Kamala Harris casting the tiebreaker vote. Breyer has given it enough time to confirm the president’s pick before the midterm elections could shift the balance of power.Democratic divisions have been on display of late but a supreme court vacancy typically unites a party like nothing else. Even senators Joe Manchin and Kyrsten Sinema, who broke ranks over the Build Back Better plan and voting rights, have voted for every Biden nominee to the lower courts so far. Both will presumably regard this confirmation as an easy way to win back some favour with angry liberals.Not for the first time, however, Biden has raised expectations. At a debate in the 2020 Democratic primary, he declared: “I’m looking forward to making sure there’s a Black woman on the supreme court, to make sure we, in fact, get every representation.” His judicial appointments so far have been historically diverse, and Jen Psaki, the White House press secretary, told reporters after the news of Breyer’s imminent retirement broke that Biden “certainly stands by” his promise.The upshot is that if he now nominates anyone other than a Black woman, there will be disappointment on the left. Sean Eldridge, founder and president of the progressive group Stand Up America, said on Wednesday: “President Biden promised to appoint the country’s first-ever Black woman supreme court justice, and he must make good on that promise.“The president and vice-president’s voters are watching eagerly to see that he follows through and makes history with his first supreme court nomination.”Potential candidates include the US circuit judge Ketanji Brown Jackson, California supreme court justice Leondra Kruger, civil rights lawyer Sherrilyn Ifill and US district judge Michelle Childs, a favourite of the South Carolina congressman James Clyburn, a Biden ally.Notably, when Jackson was confirmed last year to the influential US court of appeals for the DC circuit, often seen as a springboard to supreme court, the Republican senators Lindsey Graham of South Carolina, Susan Collins of Maine and Lisa Murkowski of Alaska voted with Democrats in favour.Carl Tobias, Williams chair in law at the University of Richmond, said: “I expect that the Democrats will remain united, as they have so far, because all Democratic members, including Senators Manchin and Sinema, have voted for all of Biden’s lower court nominees.“Most GOP senators have voted against many Biden lower court nominees. The major exception is Lindsey Graham, who has voted for many Biden lower court nominees in committee and on the floor. Senators Collins and Murkowski have also voted to confirm a number of Biden lower court nominees. If the Democrats vote together, they do not need GOP votes.”It remains an open question whether a handful of Republicans might back Biden’s nominee given the politicisation of the court in recent years – from Republicans blocking Barack Obama’s pick Merrick Garland to the rancour that surrounded Donald Trump’s three appointments, and the court’s imminent decision on the constitutional right to abortion.In an ominous statement on Wednesday, Graham said: “If all Democrats hang together – which I expect they will – they have the power to replace Justice Breyer in 2022 without one Republican vote in support. Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the supreme court.”Don’t call Joe Biden a failed president yet | Gary GerstleRead moreMeanwhile, Carrie Severino, president of the conservative Judicial Crisis Network, fired the first shots of a partisan battle to come. “The left bullied Justice Breyer into retirement and now it will demand a justice who rubber-stamps its liberal political agenda,” she said. “And that’s what the Democrats will give them, because they’re beholden to the dark money supporters who helped elect them.”Yet it is Republicans who waged a multi-generational project to tilt the court in their favour with the help of the Federalist Society, which created a pipeline of young, ideologically rightwing lawyers. Trump’s release during the 2016 election of a shortlist of judges for the court helped him secure the conservative base; his three justices are likely to be his most lasting legacy.Democrats were criticised for being slow to wake up to the threat and lacking similar aggression. Now, thanks to Breyer’s retirement, they find themselves with the unaccustomed comfort of having political momentum on their side.TopicsJoe BidenUS supreme courtLaw (US)DemocratsRepublicansUS politicsanalysisReuse this content More

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      Supreme court rejects Trump bid to shield documents from January 6 panel

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      Supreme court rejects Trump bid to shield documents from January 6 panelCourt’s move leaves no legal impediment to turning National Archives documents over to congressional committee The US supreme court has rejected a request by Donald Trump to block the release of White House records to the congressional committee investigating the deadly January 6 attack on the Capitol, dealing a blow to the former president.The order, which casts aside Trump’s request to stop the House select committee from obtaining the records while the case makes its way through the courts, means more than 700 documents that could shed light on the attack can be transferred to Congress.The only member of the high court who signaled he would have granted Trump’s request for an injunction was justice Clarence Thomas. The order did not provide a reasoning for turning down the application, which is not uncommon for requests for emergency stays.Trump’s defeat in court allows the select committee to obtain from the National Archives some of the most sensitive White House records from his administration, including call logs, daily presidential diaries, handwritten notes and memos from his top aides.The documents, which Trump tried to shield behind claims of executive privilege, also included materials in the files of his former White House chief of staff Mark Meadows, deputy counsel Pat Philbin and advisor Stephen Miller.“These records all relate to the events on or about January 6, and may assist the Select Committee’s investigation into that day,” justice department attorneys, acting on behalf of chief archivist David Ferriero, wrote in an earlier filing.The supreme court’s action, which follows the earlier rejection of Trump’s request by two lower courts, is also likely to have a cascading effect on other lawsuits filed against the panel, which hinged on the success of Trump’s pending litigation.Lawyers for Trump had urged the supreme court to take the case as they disagreed with the unanimous ruling of the US appeals court for the DC circuit that the current president Joe Biden could waive executive privilege over the objections of a former president.The lower court rulings directing the National Archives to turn over the records “gut the ability of former presidents to maintain executive privilege over the objection of an incumbent, who is often, as is the case here, a political rival”, they said.Trump’s legal team argued that the select committee also lacked a legitimate, legislative need for seeking the documents and was instead engaged in a partisan investigation seeking evidence to cause political damage to the former president.“These sweeping requests are indicative of the committee’s broad investigation of a political foe, divorced from any of Congress’s legislative functions,” Trump’s lawyers said of the panel.But in an unsigned opinion, the nation’s highest court rejected those arguments, upholding the appellate court ruling that found that although Trump had some limited power to exercise executive privilege, it was not sufficient to overcome Biden’s waiver.The court cited a 1977 supreme court decision in a dispute between former president Richard Nixon and the National Archives, which said the sitting president was in the best position to decide whether the protection should be asserted.The appeals court said that as long as the select committee could cite at least one legislative purpose for the documents – reforming laws to prevent a repeat of January 6, for instance – that would be enough to justify its request for Trumps’ records.The select committee has also rebutted Trump’s claim that forcing the National Archives to hand over White House documents could discourage future presidential aides from providing candid advice.That argument was misguided, the select committee said, because the conduct by Trump and some of his most senior aides under investigation went far beyond any usual deliberations concerning a president’s official duties.Moments after the supreme court handed down its decision, investigators working in the select committee’s offices on Capitol Hill were heard clapping in celebration, just as the panel subpoenaed more individuals connected to the January 6 insurrection.In its latest investigative action, the panel issued subpoenas to far-right Trump activists Nicholas Fuentes and Patrick Casey who received thousands of dollars in funds potentially connected to illegal activity and the Capitol attack.The new subpoenas demanding documents and testimony from Fuentes and Casey suggest the panel is drawing closer to the source of funding for the rallies that preceded the Capitol attack and the coordinated travel plans of thousands of pro-Trump rioters.Congressman Bennie Thompson, the chairman of the select committee, said that House investigators are interested in the pair since they were intimately involved in the transfer of money surrounding the Capitol attack and were present on Capitol grounds on January 6.The select committee said in the subpoena letters that Fuentes and Casey led the “America First” or “Groyper” movement and promulgated lies about voter fraud as they sought to stop the certification of Joe Biden’s election win and get Trump a second term.TopicsDonald TrumpUS supreme courtLaw (US)Trump administrationUS Capitol attackUS politicsnewsReuse this content More