MARY REICHARD, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 23rd of September, 2019. Good morning to you, I’m Mary Reichard.
NICK EICHER, HOST: And I’m Nick Eicher. First thing today, we have a quick update on how President Trump has been remaking the federal courts.
REICHARD: Right, it’s been a dramatic remake so far.
The U.S. Senate has confirmed 152 of President Trump’s nominees. That number includes judges on all levels of the federal bench: the U.S. District Courts, the Circuit Courts of Appeal, and the Supreme Court.
Let’s put that number 152 in context. If you compare the number of judges President Trump has appointed at this point in his first term to the number President Obama appointed at the same point in his first term, it’s a big difference. To President Trump’s 152 confirmations, President Obama at that point had just 92.
Now, President Obama went on to serve two terms, and he’d eventually get 237 more judges confirmed, beyond the initial 92.
It’s important to note that a president’s power to appoint judges and justices is the power to fill vacancies. In other words, it’s completely contingent upon a sitting judge’s giving up a lifetime appointment— by death, retirement, or impeachment.
EICHER: Yes, and that power is limited by the number of vacancies available. But it’s also limited by the political ability to have those appointees confirmed by the Senate.
And on that last score, the political climate of the Senate, let’s add one another thought:
Back to the Trump number of 152, I’ll note that the Senate confirmed the 100th federal judge just four months ago. Meaning, vacancies are opening, the president’s filling them, and the Senate’s confirming them faster than ever. That’s because Senate Majority Leader Mitch McConnell used the so-called nuclear option to limit debate over nominees to two hours. It used to be 30 hours of debate.
And that change followed an even bigger change to confirmation rules Democrats made back in 2013. That’s when then-Senate Majority Leader Harry Reid and his Democratic colleagues dropped the filibuster rule for lower judicial nominees.
REICHARD: Quick refresher: The Senate filibuster is still a thing, but it only applies to legislation. Before November 2013, it also applied to all judicial nominees.
And it meant senators could use the process to block those judicial nominees—because it took 60 votes to end debate and bring the nomination to the floor for an up-or-down vote. The rule produced nominees that required bipartisan support in the Senate.
Democrats wanted to push Obama nominees through faster, so Republican opposition wouldn’t matter.
At the time, Republicans called that move “the nuclear option.” Here’s Mitch McConnell, then minority leader of the Senate.
MCCONNELL: If you want to play games, set yet another precedent that you’ll no doubt come to regret, I say to my friends on the other side of the aisle, you’ll regret this and you may regret it a lot sooner than you think.
EICHER: The words ring prescient now. When Republicans took control, they spiked the filibuster rule for Supreme Court nominees in 2017, and then as I mentioned shortened debate for lower judicial appointments this year.
So with Trump in the White House and 53 Republicans in the Senate, the nominees are sailing through.
REICHARD: OK, now on to another legal battle over religious liberty, freedom of speech, and the demands of local ordinances advancing the LGBT cause. This one’s not a national case, not yet. But it’s got all the makings of one.
First, the facts. Blaine Adamson owns a t-shirt printing business in Kentucky called Hands On Originals. He is a Christian who lives out his religious beliefs, including in his business. He has LGBT employees, and prints specialty t-shirts for everyone.
What he doesn’t do is print messages that violate his “sincerely held religious beliefs.” I use that overly formal construction because it is a crucial legal term of art, sincerely held religious beliefs.
For example, promotions for so-called adult entertainment establishments. He won’t print those or anything like them.
You’ve heard this storyline before: Seven years ago, the Lexington, Kentucky, Gay and Lesbian Services Organization planned a gay-pride festival. Organizers asked Adamson to print shirts featuring the words “Lexington Pride Festival” alongside the number “5” to note it was the fifth year of the festival in town. The design includes lots of rainbow dots.
EICHER: After some back and forth clarifying the details, Adamson declined the work, citing his religious beliefs. He politely referred the customers to someone who could do the job at the same price.
Another printer did the print job for free.
Regardless, the offended customers complained to the local county Human Rights Commission. The commissioners found Adamson violated a local ordinance that prohibits a business open to the public from discriminating on the basis of sexual orientation. It’s known by the acronym “SOGI,” S-O-G-I — Sexual Orientation/Gender Identity.
Adamson appealed the ruling. He won at the next two levels in the litigation process: the Circuit Court and the state Court of Appeals. Judges there found Adamson had clearly exercised his religious freedom under the First Amendment.
They noted that Hands On Original’s website states upfront that its services are limited by the owner’s moral compass.
Therefore, the judges reasoned, every customer is offered the same limited menu, does not discriminate, and is not in conflict with the fairness ordinance.
REICHARD: The Human Rights Commission then appealed to the Kentucky Supreme Court. Alliance Defending Freedom attorney James Campbell represented the t-shirt shop. He argued constitutional principles. Audio here comes from the Kentucky high court.
CAMPBELL: The First Amendment in this case cuts in Hands On Originals’ favor because the First Amendment ensures that the government can’t use a law to force someone to print or convey a message that they find objectionable. The one thing that matters to them is the message that they’re asked to print, not the person who’s requesting it from them.
But the attorney for the commission, Ed Dove, argued a different angle.
DOVE: That’s why we have a public accommodations ordinance: to stop businesses from allowing certain populations to be discriminated against and not enjoy the goods and services that are offered by that business. The fact is, as Mr. Campbell has admitted to this court, Hands On Originals practices censorship. They want you and this court to affirm the fact that they can pick and choose who they want to serve based on the message.
The six justices asked lots of questions, showing concern over what kind of precedent they’d set ruling one way or the other.
Kentucky Supreme Court Justice Samuel Wright took a novel approach to freedom of the press. You’ll hear him reference two Kentucky newspaper titles:
WRIGHT: Free speech is essential to our nation, our way of life, our government, all of it. And that makes this sort of a little elevated in my mind, whether it be the Courier-Journal, the Herald Leader or a t-shirt printer. You can only get a printed message out if you can find someone to print it. If the message is not popular and everyone says ‘I’ve got a religious objection, I can’t print it,’ then we have stifled and limited or eliminated free speech.
Lawyer for the t-shirt shop, James Campbell, refuted that broad concern.
CAMPBELL: Your honor, I’d like to start by saying that there is zero concern on this record that that could happen. And here’s why. Because Hands on Originals itself, its policy is if it’s not able to print it off its own printers, it will connect that customer to another print shop that will print it.
Other justices inquired whether Hands On Originals typically inquires about the purpose of a print request. Justice Michelle Keller posed this scenario:
KELLER: For instance, if I were to call and say, I want a t- shirt printed that said “a woman’s place is on the Supreme Court”, would they call me back and asked me why I wanted that?
Campbell countered that isn’t what happened here, but attorney Dove for the commission came back with this:
DOVE: That’s exactly what kind of slope we’re on here. If you called and they did not like that message for religious purposes, they would not have to print it. And that is, that’s, that’s the scary part of this decision.
Campbell brought to everyone’s minds that this is a two-way street, and a rule protecting the shop owner Adamson protects those who disagree with him.
CAMPBELL: It would also ensure that a lesbian print shop owner isn’t forced to create a poster opposing same sex marriage for a religious organization. That no doubt explains why there’s evidence in the record showing that Hands On Originals is supported in this case by lesbian print shop owners.
One thing that consistently gets lost in these ongoing debates is the primacy of the Constitution and Bill of Rights over rules, regulations, and ordinances, like the SOGI ordinances at issue in this case. Sexual orientation and gender identity are not defined as protected classes under federal law.
A bill called The Equality Act would change that. It’s already passed the U.S. House and is sitting before the Senate now. It would treat SOGI the same as race, religion, national origin, and sex.
You know we haven’t heard the last of this, however the Kentucky Supreme Court decides.
And that’s this week’s Legal Docket.