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Supreme Court permits Baltimore suit against energy companies to continue

This story was originally published by Mother Jones and is reproduced here as part of the Climate Desk collaboration.

A court case between the city of Baltimore and a group of energy companies will be permitted to continue after the Supreme Court earlier this week rejected the latter’s attempt to freeze the case. The litigation, which the city initiated in 2018, alleges that the energy companies are liable “for their direct emissions of greenhouse gases” and the damages they’ve caused the city and its residents.

No explanation accompanied the Supreme Court rejection, but Baltimore is considering it a victory, since its case against companies including BP, Exxon Mobil, Shell, and Citgo can now continue. Though the ultimate decision of where the case should be heard may end up being more significant than the high court ruling.

The energy companies’ request to halt the case is part of their broader legal fight to move the case from state to federal court. The companies hope to establish a precedent in which climate cases are largely heard by federal courts, where “climate-related cases have been largely decided in the companies’ favor,” reports Climate Liability News. In a recent article on the Supreme Court’s rejection of the freeze, New York Times columnist Adam Liptak points out that cases in state courts disadvantage big corporations because cities have a “home-court advantage before local judges.”

The strategy of choice among big energy companies is to appeal to the federal courts — in this case the 4th Circuit Court of Appeals — that its cases belong there, then request a stay on the state case while the appeal is decided, citing the costliness of multiple concurrent cases. The recent New York Times article elaborates on the one-two punch:

In the Supreme Court, the energy companies argued that the issues in the case require adjudication in federal court.

“It is difficult to imagine,” they told the justices in court papers, “claims that more clearly implicate substantial questions of federal law and require uniform disposition than the claims at issue here, which seek to transform the nation’s energy, environmental, national security and foreign policies by punishing energy companies for lawfully supplying necessary oil and gas resources.”

Letting the state court suit move forward in the meantime, the companies said, would subject them to needless litigation expenses. Baltimore responded that such costs did not amount to the sort of irreparable injury that would warrant a stay of proceedings while the question of the proper forum is resolved.

It’s not the first time the energy companies have tried to remove the case from a state court. In June, a federal court in Baltimore ruled that the defendants’ attempt to push the case out of local courts was “improper.” A similar request lodged to the circuit court while it still decides on the legitimacy of the defendants’ appeal was also denied.

With the appellate court still deciding if the case can be elevated to the federal level, the final arena is undecided. If the battle between Baltimore and the energy companies remains in a local court, the implications for future cases are substantial, paving the way for court battles with energy companies at the local level.

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Supreme Court permits Baltimore suit against energy companies to continue

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Did Brett Kavanaugh lie about his environmental record?

Brett Kavanaugh, the Supreme Court nominee accused of sexual assault by Dr. Christine Blasey Ford, wants you to know that, at the time of the alleged incident, he was just an average teenage virgin. His pastimes included “hanging out and having some beers” with his buddies, OK? In normal amounts, allegedly. And you know what? It’s difficult to definitively prove that his version of events isn’t true.

What we do have a record of, however, is how Kavanaugh has voted on the environment. “In some cases, I’ve ruled against environmentalists’ interests, and in many cases I’ve ruled for environmentalists’ interests,” he testified to the Senate Judiciary Committee on September 5. So why did one law professor call him the “Voldemort” of environmental law?

Unfortunately for lovers of the truth and also planet Earth, the honorable judge may have mischaracterized his environmental credentials, as the Intercept reports. Let us please turn to the receipts.

During that testimony before the Senate Judiciary Committee, Kavanaugh named Natural Resources Defense Council v. EPA as an example of a time he upheld environmental regulations. As Sharon Lerner wrote in the Intercept, he actually ruled against three out of four of the challenges brought by environment groups in that case. And the one point he sided with environmentalists on wasn’t “especially environmental,” an NRDC senior attorney told Lerner.
But what of his opinions? Did the judge pen fiery defenses of the environment during his tenure? Not really. An Earthjustice analysis found that, when deciding 26 EPA-related cases, Kavanaugh sided with the deregulation camp 89 percent of the time.
Kavanaugh, unlike most normal human beings, doesn’t seem to have a soft spot for nature’s majestic fauna. An analysis from the Center for Biological Diversity shows that Kavanaugh voted against wildlife 96 percent of the time. Do all judges just hate animals? Nope! That same analysis shows conservative judge David Sentelle voted against animals 57 percent of the time, and moderate judge Merrick Garland voted against them 46 percent of the time.
The last nail in Kavanaugh’s environmental coffin comes from President Trump himself, who sent out an email this summer praising the Supreme Court nominee for overruling federal regulators “75 times on cases involving clean air, consumer protections, net neutrality and other issues.”

For someone who has attended so many sports games, this former football bro is pretty bad at keeping score. Maybe all the beverages he’s consumed in his lifetime have clouded his ability to remember his environmental voting record.

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Did Brett Kavanaugh lie about his environmental record?

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Pruitt’s EPA tenure helped sharpen a Trump-era climate strategy

There’s no debating that President Donald Trump’s Environmental Protection Agency, led until recently by the flagrantly corrupt Scott Pruitt, has dealt a series of woeful and lasting setbacks to our planet’s habitability.

With coal lobbyist Andrew Wheeler stepping in as interim EPA administrator, things probably won’t get better for federal environmental policy anytime soon. There’s a good chance Wheeler’s EPA will have fewer soundproof booths, cheaper pens, and a less-massive security detail. But Wheeler is on record saying his agenda will be the same as Pruitt’s. And a less scandal-ridden EPA administrator could do even more damage.

With all three branches of government stacked against them, environmental advocates have to focus on geographically-targeted policy. Luckily, it is a strategy that most are already accustomed to. So beyond the smog at the federal level, you can make out a constellation of small, but still massively consequential, sub-national victories emerging for champions of clean air and a stable climate.

Julie Cerqueira, the director of U.S. Climate Alliance, an association of state governors, points to recent successes in improving energy-efficiency standards and coordinating to build out zero-emission vehicle infrastructure. “There are strategic opportunities for the states to work together in ways that can help shift the market towards lower carbon and more resilient solutions for the nation,” she says.

The rapid rise of renewable energy means that the transportation sector is now the leading source of emissions in the U.S. So two groups of states on the West Coast and in the Northeast are already working together to “rapidly accelerate the adoption of electric vehicles and reduce transportation related greenhouse gas emissions,” says Sarah McKearnan, a policy advisor for Northeast States for Coordinated Air Use Management, a group advocating for better air quality.

Working against them is that one of the Trump EPA’s main goals is to undo Obama-era vehicle emission standards, a fight that will center on California due to the state’s status as a testbed for stricter motor vehicle regulations. Environmental groups are ready for the fight, having become more litigious in defending these regulations and other policies already on the books.

Pruitt’s “success” at the EPA was mostly in decimating staffing and morale, as well as eliminating science. But with Trump’s recent nomination of Brett Kavanaugh to replace Justice Anthony Kennedy, it’s likely the next Supreme Court won’t do much to stop the tearing down of regulations. To have any success, organizations suing on behalf of the environment will have to tailor their arguments to win over Chief Justice John Roberts, who now has the swing vote.

“We have sued Trump 77 times so far,” says Kassie Siegel, director of the Climate Law Institute at the Center for Biological Diversity. “The Trump administration is so beholden to the polluters they are supposed to be regulating that they make a lot of mistakes in their headlong rush to gut protections for our air, water, and health. Because of that, we’ve had many victories in court, and we’ll have many more.”

Luckily for greens, the environment is inherently local — and cities and states aren’t just passing policies the feds won’t, they’re also setting ambitious targets to tackle climate change. (That, you’ll recall, is the phenomenon that’s no longer mentioned by executive branch agencies.)

Since Trump was elected, more than 1,400 mayors have agreed to shift their cities to 100-percent renewable energy by 2035, in line with the goals of the Paris Agreement. Last fall, St. Louis became one of the biggest cities so far to set that lofty goal. The city of Berkeley, California, went even further recently, declaring an “existential climate emergency” and aiming for net-negative emissions by 2030.

It’s ambition like that, if realized, that will provide climate leadership for the rest of us in the Trump era. Meanwhile, Siegel, of the Center for Biological Diversity, is aiming her organization’s resources at least in part on making sure cities and states’ actions match their rhetoric.

“We are pushing the state of California, which is viewed as a model for climate leadership, to be a model worth following,” says Siegel. “In California, we have a moratorium on federal oil and gas leasing that has been in place since 2013, due to our litigation victories. We expect the Trump administration to try to restart leasing this summer. We will fight that in the street and in court.”

Sierra Club Legal Director Pat Gallagher says that both public opinion and the economics support his organization’s efforts to expand the use of renewable energy throughout the country.

“We’re using every means at our disposal to protect clean air, clean water, and healthy communities,” he explains. “We’re going to hold the line against rollbacks of environmental and public health protections by emphasizing that science and the law are on our side.”

The truth is, climate change is happening so fast that we can’t wait for a national-scale policy to slow it down. So rather, we should double down on this huge momentum throughout the country. We need bold, near-term leadership — and one good way to make that happen is with as many people in as many places as possible leading by example.

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Pruitt’s EPA tenure helped sharpen a Trump-era climate strategy

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Will Justice Roberts stand up to the Supreme Court’s potential Voldemort?

On Monday night, President Trump announced his replacement for retiring Justice Anthony Kennedy — and the news isn’t good for people who care about the planet. Trump’s nominee is 53-year-old D.C. circuit court judge Brett Kavanaugh, a dedicated originalist who has a bleak record on green issues.

“I think of him as the Lord Voldemort of the environment,” Bill Snape, senior counsel at the Center for Biological Diversity and fellow at American University, tells Grist. (No joke, his last name is Snape.)

“Kavanaugh, to me, is another Scalia,” Snape adds. “On all things administrative law, energy law, environmental law, he has been pretty much the worst.”

But while Voldemort targets Muggles, Kavanaugh aims at environmental regulations. In 2012, on the D.C. circuit, he ruled that the EPA could not regulate air pollution that crosses state borders — a decision that was later reversed by the Supreme Court, 6-2. By the EPA’s reckoning, this decision literally saved lives. Had the court followed Kavanaugh’s opinion, the resulting unregulated air pollution could have led to between 13,000 and 34,000 additional deaths per year.

Kavanaugh also appears to have influenced the Supreme Court’s rulings against the Clean Air Act. He is cited in both Utility Air Regulatory Group v. EPA and Michigan v. EPA.

“He has just been a Clean Air Act disaster,” Snape tells Grist. “And it’s not just with regard to the EPA — he seems to have a very ideological anti-environmental stance.”

Kavanaugh also ruled to limit the power of critical habitat protections, most notably in a 2011 case around endangered fairy shrimp. The first case on the Supreme Court docket for the coming term, Snape warns, is a critical habitat case.

If Kavanaugh is confirmed and becomes SCOTUS’s Voldemort, where does that leave the rest of the court? With Kennedy gone, the court will move hard to the right, and John Roberts — who is not what most people would consider “moderate” — will become the new swing vote.

It could be worse. Roberts, who was appointed by George W. Bush in 2005, has gradually been shifting toward the center throughout his tenure. In recent years, Roberts has been a bona fide moderate. In fact, he’s already credited with casting the court’s swing vote about 30 percent of the time — second only to the retiring Kennedy.

But Roberts has a sketchy record on climate science. In Massachusetts v. EPA, he joined the conservative side in voting against giving the EPA the ability to regulate carbon dioxide as a pollutant. In his dissent, he wrote that drawing a direct link between individual choices of vehicles and the rising oceans was “pure conjecture.”

Still, some environmental campaigners think that the pro-business Roberts will be open to standardized environmental controls — which could actually be a net benefit to companies’ bottom lines. Moreover, Roberts has indicated that, despite his dissent at the time, he considers Massachusetts v. EPA to be established precedent. He’s unlikely to then want to break that precedent to overturn it.

So it remains to be seen whether Roberts will follow the path of the Dark Arts on issues related to the environment. Will he stick to climate denial, now that his vote matters even more? Or, will he come through like the original Professor Snape and rally to support the light when he’s needed most?

No matter what he decides, the consequences will be enormous — and could affect planetary health for millennia to come. No pressure.

And in case you’re wondering, here’s how the rest of the Supremes stack up in Harry Potter’s world, courtesy of Grist’s resident Potterhead, Caroline Saunders:

Clarence Thomas — Cornelius Fudge. These old boys don’t like to mess with the status quo.

Ruth Bader Ginsburg — Professor McGonagall. She keeps the world in line. Also, don’t cross her.

Stephen Breyer — Remus Lupin. Just like our furry friend in Harry Potter, he provides balance on tough issues.

Samuel Alito — Scrimgeour. Boy, do they both like to prosecute.

Sonia Sotomayor — Hermione Granger. Two badass female champions of the underserved.

Elena Kagan — Nymphadora Tonks. Kagan may not have technicolor hair, but she’s a hip young force on an aging bench. Don’t underestimate her.

Neil Gorsuch — Lucius Malfoy. They even look alike!

So @J.K. Rowling, when are you releasing Harry Potter and the Supreme Court Justices?

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Will Justice Roberts stand up to the Supreme Court’s potential Voldemort?

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Cory Booker talks about the need to tackle ‘corporate villainy’

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Cory Booker talks about the need to tackle ‘corporate villainy’

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The Voting Rights Act May Be Coming Back From the Dead

Mother Jones

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On June 25, 2013, the Supreme Court killed the core provision of the Voting Rights Act. Four years later, it may be coming back from the dead.

Before Shelby County v. Holder, the 2013 case, the 1965 Voting Rights Act barred nine states with a history of discrimination against minority voters, and portions of six others, from passing new voting laws without federal approval. The court’s 5-4 decision, written by Chief Justice John Roberts, found that the formula for determining which jurisdictions needed approval—or “preclearance”—was outdated and therefore unconstitutional.

“Coverage today is based on decades-old data and eradicated practices,” Roberts wrote, and “‘current burdens’ must be justified by ‘current needs.'” In other words, states couldn’t be subject to preclearance based on the pervasive discrimination of the Jim Crow era, which Roberts wrote was now firmly in the past. Implicit in that ruling was the idea that states could be brought back under preclearance if they showed new evidence of discrimination. The law contains a provision specifically for that purpose, allowing courts to place jurisdictions under preclearance if they demonstrate intentional discrimination.

Freed by the court’s ruling from oversight for the first time in decades, many of the formerly constrained state and local governments quickly began imposing new restrictions on voting. But by passing measures that curtail voting by minorities, these jurisdictions are essentially calling Roberts’ bluff—and could force the Supreme Court to consider restoring preclearance.

Texas is the likeliest setting for the return of preclearance. In the last two months, federal courts have three times ruled that the state intentionally discriminated against minority voters. Its 2011 voter ID law and two redistricting maps it drew that year—for the state House and for Congress—were intended to limit the voting power of minorities, the courts found. Plaintiffs in the cases are asking the courts to place Texas back under preclearance. One or more of the cases could reach the Supreme Court as early as its next term. If so, the Roberts Court will have to decide what to do with states that demonstrate that racial discrimination in voting laws is not just a thing of the past.

Shelby County said that any preclearance had to be based on current evidence,” says Rick Hasen, an election law expert at the University of California, Irvine School of Law. “And these trials are based on current evidence, not based on something that happened in the 1960s. And so one way of reading this is that the courts are being faithful to what the Supreme Court said in Shelby County, which is that in order to have the extraordinary remedy of preclearance, you need to show that there is a current problem with intentional race discrimination. That’s exactly what’s at stake in these cases.”

In 2010, a conservative backlash to President Barack Obama put Republicans in charge of legislatures and governorships across the country. They quickly passed new voter ID requirements, restrictions on early voting and same-day registration, and other measures that have been found to reduce voting among minorities, the poor, young people, and the elderly. According to the Brennan Center for Justice, by the time of the 2012 elections, 19 states had passed 25 restrictive voting laws.

Fourteen of those laws were blocked by the courts or the Justice Department under the Voting Rights Act’s preclearance rule, and the torrent of voting restrictions began to slow. Shelby changed that. It set in motion a new wave of voter suppression laws across the country. Weeks after the court’s ruling, for example, North Carolina passed a voter suppression bill that the 4th Circuit Court of Appeals, in striking it down, called “the most restrictive voting law North Carolina has seen since the era of Jim Crow,” targeting “African Americans with almost surgical precision.”

No state moved more quickly than Texas to implement a wish list of election reforms that had been blocked under preclearance. Hours after the court’s decision, the state’s attorney general, Gregg Abbott, announced, “With today’s decision, the state’s voter ID law will take effect immediately.” The next day, Gov. Rick Perry signed into law maps for congressional and state Legislature districts that were based on the ones that had been struck down by a federal court under preclearance in 2012 as deliberately discriminatory against minority voters.

Those moves have not fared well in the courts. In April, a federal judge in Corpus Christi ruled that the voter ID law was passed with discriminatory intent. In the past two months, a federal court in San Antonio found both the congressional and the statehouse maps from 2011 intentionally discriminatory. In July, a federal court will determine whether the maps Texas adopted after Shelby are also discriminatory; that case could result in court-drawn maps for the 2018 elections. The string of rulings might lead the courts to reimpose preclearance on Texas. After all, preclearance was intended to target repeat offenders so that the courts wouldn’t be left playing whack-a-mole to strike down discriminatory measures every time they emerged.

“You see the consequence of not having preclearance,” says Mark Gaber, an attorney on the plaintiffs’ legal team in the redistricting cases. “It’s 2017 and we’re still having to litigate about something that happened in 2011.” He adds, “In that period of time, we’ve now gone through three election cycles under maps that quite clearly are—the court’s going to find to be discriminatory.”

Any court that finds intentional discrimination could put Texas back under preclearance for up to 10 years. The courts can decide what types of election laws, if not all of them, would be subject to federal approval.

Wendy Weiser of the Brennan Center, who is part of the plaintiffs’ litigation team in the Texas voter ID case, says there’s a “reasonable chance” that one or more of the Texas cases will result in Texas being placed under preclearance. “The thing that persuades me that this is more likely than not is…the existence of multiple findings of discrimination in the state during this period,” she says. “So it really feels quite widespread.” Hasen concurs that there’s “a fair chance” that at least one of the Texas cases will result in preclearance. Texas would almost certainly appeal a preclearance order, putting the ultimate decision before the Supreme Court.

Texas is not the only place facing the potential return of preclearance. In the days and months after Shelby, Alabama and Mississippi enacted voter ID laws that had previously been held up by preclearance. North Carolina has stood out for the sheer number of voting bills Republicans have passed to preserve their power, including a redistricting map currently before the Supreme Court and a voter ID bill on which it could also rule. At least two cities have already been placed under preclearance in the aftermath of Shelby: Evergreen, Alabama, for gerrymandering its city council districts to produce a majority-white council in a city that is 62 percent African American, and Pasadena, Texas, which also restructured its city council to reduce the power of Hispanic voters. Pasadena is appealing that decision. But if a court places Texas under preclearance, it would mark the return on a much bigger level of a policy thought to be all but dead.

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The Voting Rights Act May Be Coming Back From the Dead

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Justice Sotomayor Slams "Disturbing Trend" of Supreme Court Siding With the Police

Mother Jones

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The Supreme Court has a “disturbing trend” of siding with officers over their alleged victims in cases involving the use of force by police. That’s according to a stinging dissent issued on Monday by Justice Sonia Sotomayor, after the full court voted to let stand the dismissal of a lawsuit against a Houston cop who shot a man in the back during a traffic stop. The court, Sotomayor wrote, has reliably reversed lower-court rulings that favored the plaintiff in such cases, “but we rarely intervene where courts wrongly afford officers the benefit” of the doubt. Justice Ruth Bader-Ginsburg joined Sotomayor’s dissent.

One night in October 2010, Ricardo Salazar-Limon and his friends were driving on a highway outside of Houston when Houston Police Officer Chris Thompson pulled him over. After running the driver’s license and registration and finding nothing amiss, Thomson asked Salazar-Limon to step out of his truck—apparently to conduct a Breathalyzer test. Thompson then tried to handcuff Salazar-Limon, but the driver resisted and began walking back to his truck with his back to Thompson. The officer then drew his gun and ordered him to stop. Salazar-Limon says Thompson shot him within seconds of that order. Thompson claims he fired only after Salazar-Limon reached for his waistband—as if for a weapon—and turned toward him. No weapon was found.

Salazar-Limon sustained crippling injuries. In 2011, he sued Thompson and the Houston police for violating his civil rights. But a federal judge dismissed the suit, ruling that Thompson had qualified immunity because he’d shot Salazar-Limon in the course of his lawful duties. Salazar-Limon never explicitly denied reaching for his waistband during his deposition, nor, the judge wrote, did he offer evidence that he hadn’t—so the only conclusion a reasonable jury could reach was that he had. Thompson thus could have felt threatened and shot him because of it. A federal appeals court affirmed the ruling.

Salazar-Limon appealed to the Supreme Court, which on Monday decided not to hear the case. That was the wrong move, argued Sotomayor. A dismissal should only be granted, she wrote, when the facts of an incident are not in dispute. Thompson claimed the shooting was provoked. Salazar-Limon said it was not. The lower-court judge gave unfair privilege to the officer’s account, Sotomayor said. It was a jury’s job—not a district court judge’s—to determine whose story was more plausible. A juror, she wrote, could easily ask why Salazar-Limon would have reached for his waistband if he didn’t have a weapon. (In a footnote, she cited “the increasing frequency of incidents in which unarmed men allegedly reach for empty waistbands when facing law enforcement officers.”)

Writing for the majority, Justice Samuel Alito said the court rarely reviews cases “where the thrust of the claim is that a lower court simply erred in applying a settled rule of law to the facts of a particular case”—as opposed to cases in which the court is asked to interpret the law itself. But Sotomayor cited five recent cases in which the court intervened after a lower court ordered an offer to stand trial based on the facts of the case. Improperly dismissing lawsuits against officers who may have acted unlawfully “imposes no less harm” than trying officers who haven’t broken the law, she wrote.

The high court’s decision could encourage federal judges to dismiss civil lawsuits against police officers, says Joanna Schwartz, a professor at the University of California-Los Angeles who studies litigation against police. The ruling could also discourage attorneys from bringing such lawsuits, further limiting the options for redress against police abuses—as prosecutors rarely bring criminal cases and the Department of Justice under Attorney General Jeff Sessions may have little interest in doing so. “Lawyers are not making very much money off these cases. They bring these cases because they believe in them,” Schwartz told me. “As it becomes increasingly more difficult to win anything, it’s going to be even harder for lawyers to make the decision to represent these plaintiffs.”

Sotomayor’s dissent on Monday was her second recent one related to police tactics. Last summer, she cited author James Baldwin and The Atlantic writer Ta-Nehisi Coates while slamming a Supreme Court ruling involving what she deemed an illegal search and seizure: “The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights,” she wrote. “This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong.”

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Justice Sotomayor Slams "Disturbing Trend" of Supreme Court Siding With the Police

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Here’s the Biggest Lie Sean Spicer Told Today

Mother Jones

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While chastising Democrats for threatening to filibuster Neil Gorsuch’s Supreme Court nomination, White House Press Secretary Sean Spicer on Thursday delivered one of his most egregious falsehoods yet. Republicans, he insisted, have historically been cooperative when it comes to giving up-or-down votes to Democratic presidents’ court appointments. Spicer specifically mentioned former President Barack Obama in making this assertion.

“Republicans in the past have allowed Democrat presidents to have their SCOTUS nominees voted on up or down,” Spicer said. “And for the most part, when you go back through President Obama or President Clinton…Republicans have joined with Democrats to allow people who are qualified to go onto the court.”

“It was Obama’s nominees that got through—all with Republican support,” he added. “It’s difficult to understand why, when you’ve got someone as eminently qualified as Gursuch, that this the stake that they want to drive. And I think it further sets a partisan divide in our country when we can’t allow people who are qualified, and universally so, to get on the bench.”

There’s one glaring problem with Spicer’s remarks: Merrick Garland. In 2016, Obama selected Garland to replace the Supreme Court Justice Antonin Scalia, who died last February. Arguing the nomination to fill the vacant seat should be left to the next president, Republicans staged an unprecedented blockade to the nomination process, refusing to even hold hearings on Garland’s nomination. That gamble paid off, and here we are with Trump and Gorsuch—and Spicer’s bald-faced lie.

Watch Spicer’s remarks, which start around the 1 hour and 49 minute mark:

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Here’s the Biggest Lie Sean Spicer Told Today

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Trump’s Supreme Court Nominee Has Little in Common With Most Americans

Mother Jones

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One of the main jobs of Republicans on the Senate Judiciary Committee this week has been to deflect attacks on Supreme Court nominee Neil Gorsuch by Democrats, who are trying to paint him as a tool of corporations and a foe of the little guy. To that end, Republicans have tried both to humanize the federal judge and to highlight the parts of his background that might make him more relatable to the average American. They’ve got him talking about the Denver rodeo and mutton bustin’ and quoting David Foster Wallace.

But those humanizing efforts are falling a bit flat. That’s largely because when it comes to demonstrating all that he has in common with the regular folks who might come before the court, Gorsuch is his own worst enemy. A graduate of Georgetown Prep, Columbia University, Harvard Law School, and Oxford, Gorsuch is the son of Ronald Reagan’s Environmental Protection Agency chief and spent most of his formative years inside the Beltway, including a stint as a clerk on the DC Circuit Court of Appeals. His nomination to the 10th Circuit Court was championed by the secretive billionaire Phillip Anschutz, his former client, and Gorsuch co-owns a Colorado mountain cabin with two of Anschutz’s top deputies.

On Tuesday night, Sen. Jeff Flake (R-Ariz.) asked Gorsuch about how he “liked to get his hands dirty.” If Flake was hoping to reveal a nominee who subscribes to Family Handyman and loves power tools, he was disappointed. The judge responded by reminding the committee how much he loves to ski. (Gorsuch was on the slopes when he learned about the death of Justice Antonin Scalia, whose seat he’s been nominated to fill.) “I always say the family that skis together stays together,” Gorsuch had said earlier in the hearing. Gorsuch told Flake that his daughters were “ferocious double-black-diamond skiers,” and at that very moment, one of them was doing some backcountry skiing near Telluride.

The exchange was unlikely to help most Americans relate to the judge. Today, skiing is largely a sport of the wealthy. A one-day lift ticket at Winter Park, the Colorado resort where Gorsuch said he liked to go, costs $144. A single day of skiing for a family of four could cost nearly $600, not including all the gear and lunch at the lodge. And teaching kids to ski so they can become “ferocious double-black-diamond skiers” is an enormous investment. A single day in the Winter Park ski school will set you back $189 for one child, not including equipment rentals. For most of the country, even with discounts for locals, those costs put skiing largely out of reach.

Earlier in the hearing, Sen. Mike Lee (R-Utah) had asked Gorsuch about his experience in politics. “Are you a lawmaker?” Lee asked. “Have you ever held a position as a state legislator? Have you ever held a position as a member of Congress?” Gorsuch responded with a chuckle, “I’ve served on my kid’s school board.”

The following day, Flake asked Gorsuch about his civic involvement outside of the court, mentioning his school board service. “Boy, that I found taxing, and loved every minute of it,” Gorsuch said. Flake nodded appreciatively, telling Gorsuch, “That typifies the West. People get along. They have to. On a school board there’s no passing the buck there. You’ve gotta make decisions. Local government is like that.”

What Flake seemed to have missed, though, is that Gorsuch never served on a public school board. He was on the board of the Boulder Country Day School, a small private school with tuition that runs from $15,000 to $20,000 a year. That’s a big difference from serving on a public, elected school board just about anywhere in the country.

In fact, Gorsuch is among the most privileged individuals to be nominated to the Supreme Court in recent memory. Justice Clarence Thomas grew up poor in Pinpoint, Georgia, speaking Gullah. His idea of a good time is camping in a Walmart parking lot in his RV en route to a NASCAR race. Sonia Sotomayor hails from a Puerto Rican family and grew up with a single mom in a South Bronx tenement. Samuel Alito is a Jersey boy, the son of Italian immigrant teachers, who graduated from a public high school. At first glance, Gorsuch’s background somewhat resembles that of Chief Justice John Roberts Jr., who likewise comes from a tony private-school background—except that Roberts worked summers in a steel mill to pay his way through Harvard.

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Trump’s Supreme Court Nominee Has Little in Common With Most Americans

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Ruth Bader Ginsburg Really Is the Most Notorious Supreme Court Justice

Mother Jones

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Bruce Bartlett points me to a C-SPAN survey that, among other things, asks people if they can name any Supreme Court justices. Here are the results:

That thin orange line that’s zero across the entire bottom of the chart is the number of people who named Stephen Breyer. Poor guy. However, it’s still possible that he was the first choice of at least a few people. The survey size was 1,032 people, so anything less than five would get rounded down to zero. Breyer might very well have been named by three or four people.

Anyway, the two big takeaways are (a) the older you are, the more likely you are to know at least one justice, and (b) Ruth Bader Ginsburg kicks ass. Even the chief justice isn’t better known than her. Good job, RBG.

Of course, they’d all have better Q scores if they followed the advice of 76 percent of the public and allowed arguments to be televised.

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Ruth Bader Ginsburg Really Is the Most Notorious Supreme Court Justice

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