Policy Updates

On the Hill Updates: October 30, 2020

Federal Courts

Senate confirms Amy Coney Barrett to fill Justice Ginsburg’s seat

On October 26, the Senate confirmed Amy Coney Barrett to the Supreme Court in a 52-48 vote. She was immediately sworn in at the White House and began her term as an Associate Justice on the Supreme Court the next day — all of this happening one week before the election and with more than 60 million ballots already cast at the time of her swearing in. This nomination process was rife with procedural anomalies, ranging from breaking the rules of the Senate Judiciary Committee twice to rushing confirmation so close to an election and against a backdrop of a pandemic that has left over 228,000 people dead without taking proper time to fully examine the nominee’s background and qualifications. NCJW’s 180,000 advocates dissent to the confirmation of Judge Barrett, to the process through which she was confirmed, and to a Senate that refuses to prioritize the American people. We will honor Justice Ginsburg’s dying wish by continuing to work to advance and protect the rights of women, children, and families and to ensure a fair, independent, and qualified judiciary that will protect the rights of all Americans.

Battleground state of Pennsylvania in the courts

On October 23, the Supreme Court of Pennsylvania ruled unanimously that mail-in ballots can’t be excluded from counting due to mismatched signatures. A 2019 Pennsylvania law greatly expanded vote-by-mail in the state. Due to the COVID-19 pandemic, requests for mail-in ballots surged in the Keystone state and more than 1.5 million Pennsylvanians have already returned their ballots. The Pennsylvania Supreme Court ruling is a victory for voting rights activists who argue that ballots rejected by cause of signature disproportionately impact young voters and people of color. And, on October 28, the US Supreme Court refused to hear a request from Pennsylvania Republicans to block the three-day deadline extension for receiving absentee ballots. Relatedly, the Court also let stand lower court rulings that allowed North Carolina’s board of elections to extend the deadline to nine days after Election Day. NCJW supports easy and equitable access to the ballot box and legislation that would modernize our election systems and make it easier to register and cast a ballot.

Supreme Court rules Wisconsin can’t count mail-in ballots received after election day

In a 5-3 decision on October 26, the Court ruled that ballots in Wisconsin that are postmarked by Election Day but arrive after should be thrown out. Justice Kavanaugh cited Bush v. Gore in his decision justifying the ruling. Justices Kavanaugh, Roberts, and Barrett each served on George W. Bush’s legal team in the Florida 2000 recount and worked to ensure that only Republican votes were counted, calling into question the Court’s impartiality on election-related cases. Justice Kavanaugh’s concurring opinion is extremely troubling as it appears to support President Trump’s pronouncements of a potentially rigged election by allowing ballots to be counted after the November 3 deadline. NCJW believes that in a pandemic, voting should be easier and more accessible, with extended deadlines to ensure every vote is counted.

Supreme Court weighs next battle over abortion rights & access

On October 22, Mississippi Attorney General Lynn Fitch filed a supplemental brief with the Supreme Court, once again petitioning the justices to consider the state’s 15-week abortion ban. The case — Dobbs v. Jackson Women’s Health Organization — began when the Center for Reproductive Rights filed a complaint and requested a temporary restraining order blocking the law banning all abortions after 15 weeks hours after the governor signed it into law on March 19, 2018. Both the US District Court for the Southern District of Mississippi and the Fifth Circuit Court of Appeals struck down the law as unconstitutional, the latter noting that “[i]n an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability.”

Following Mississippi’s initial request that the Supreme Court review these decisions in June 2020, the justices have rescheduled consideration of whether to take up the case three times. Now, the state argues that this case not only presents a direct challenge to Roe but is also an opportunity for the Court to clarify its June 2020 decision in June Medical Services v. Russo. Lower courts are divided on how to interpret this precedent because, rather than joining Justice Breyer’s opinion for the Court, Chief Justice John Roberts wrote a separate concurrence maintaining that 2016’s Whole Woman’s Health v. Hellerstedt was wrongfully decided; he also insisted that courts need not balance the supposed benefits of the law with the burdens it imposed on those seeking abortion care and can instead apply a less stringent standard of review. The Court has announced that it will consider Mississippi’s petition during its conference on Friday, October 30, and typically releases orders on the following Monday, meaning that we could learn whether the Court will hear the case this term on November 2. We need a federal statute with clear guidance to states and courts to ensure that people in every state have access to abortion care. NCJW supports the Women’s Health Protection Act (WHPA, HR 2975/S 1645) as a means to this end.

Unqualified nominee awaits vote by full Senate 

Kathryn Kimball Mizelle, nominated to the US District Court for the Middle District of Florida, is awaiting a full Senate vote. On October 22, Chairman Lindsey Graham (R-SC) broke committee rules, for the second time that week, in order to hold a Senate Judiciary Committee vote to refer her out of committee. Mizelle graduated from law school only eight years ago, spent four years clerking, and has experience in only two trial cases — neither at the senior level. The American Bar Association found Mizelle “Not Qualified” for a lifetime appointment, directly citing her lack of meaningful experience. Furthermore, Mizelle has deep ties to some of the nation’s most conservative legal voices — having spent three years on the DC Young Lawyers Chapter Steering Committee of the Federalist Society, an ultraconservative legal group. NCJW believes Mizelle lacks the proper experience required for a lifetime appointment and strongly opposes her nomination.

Extreme nominee awaits vote for lifetime appointment

Toby Crouse, nominated to the United States District Court for the District of Kansas, is currently awaiting a vote by the full Senate. Since 2018, Crouse has served as Kansas Solicitor General and proved to be a highly partisan opponent of many important rights — reproductive, voting, and workers, among others. On behalf of the state of Kansas, he urged the Supreme Court to review a case defunding Planned Parenthood, a case that the Tenth Circuit disagreed with and the Supreme Court declined to hear. In private practice, Crouse defended the infamous Kansas Secretary of State Kris Kobach in a case challenging his redistricting plan. Later, as Solicitor General, Crouse supported other restrictive voting laws. He also joined amicus briefs in anti-immigration, anti-worker, anti-gun safety, and other cases challenging fundamental rights. NCJW opposes the nomination of Toby Crouse given his extreme views on issues impacting women, children, and families.


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