A judicial nomination under attack — and now in peril

The attacks on Adeel Mangi’s nomination give way to appalling cowardice from a trio of Democratic senators. Also: The next Supreme Court argument sitting is a big one.

On Tuesday, Sen. Dick Durbin, the Senate Judiciary Committee chair, called out his colleagues and others for the disgusting attempt to destroy Adeel Mangi’s historic nomination for a seat on the U.S. Court of Appeals for the Third Circuit.

Mangi would be the nation’s first Muslim American judge, and the attacks against him have been unrelenting. Although it started with Republicans, including at his confirmation hearing, the anti-Mangi efforts have continued in the months since, attempting to smear him with baseless claims of terrorism and anti-law enforcement connections — as Madiba Dennie and Jay Willis have covered at Balls and Strikes.

Since March 20, though, the attacks have proven effective.

In that time, three Democrats in the Senate — Sens. Catherine Cortez Masto and Jacky Rosen of Nevada and Sen. Joe Manchin of West Virginia — have given in to these racist, bad-faith, ideological attacks, saying that they will not support Mangi’s nomination.

This is appalling cowardice, and they should be ashamed.

Impressively, Durbin agrees that they should be ashamed — and said so, albeit focusing on the Republican attacks.

“Republicans have unfairly attacked Mr. Mangi for his nominal affiliation with the Alliance of Families for Justice,” he said Tuesday. “They falsely—falsely—claim that he supports ‘cop killers.’ That outrageous allegation could not be further from the truth.”

Regardless of who he explicitly directed his comments to, Durbin’s timing and the public nature of his comments coming more than a week after the trio of Democrats had let their position be known was important and notable.

And his ultimate conclusion was directed at everyone.

“[Mangi] should not have to answer for baseless and bigoted attacks that do not accurately reflect him or his record in many different ways,” Durbin said. “I urge my colleagues to dismiss the smear campaign against Mr. Mangi and to support his nomination.”

Durbin is right. Cortez Masto, Rosen, Manchin, and anyone else wavering should listen.

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A big SCOTUS sitting

I’m starting to prepare for the upcoming Supreme Court sitting, which begins next week and includes several cases of note.

Here are some highlights:

Snyder v. United States (April 15) is a case where we are literally debating section 666 of the criminal code, which is a corruption statute. There will be arguments, but, if history is any guide, the court is likely to interpret the provision narrowly. (The general rule for the Roberts court is that corruption statutes are interpreted narrowly; other criminal statutes depend on Justice Neil Gorsuch’s thoughts and whether he can bring another conservative along.)

Fischer v. United States (April 16) is “the January 6 case,” about another criminal statute — the bar on “obstruct[ing] … or imped[ing] an official proceeding” — and the question is whether the statute does or ever was intended to cover the actions at issue in the January 6 prosecutions, including the federal charges Donald Trump is facing in D.C. Here’s the law at issue:

The argument in the case hinges on whether 18 USC Sec. 1512(c)(2) must be read in conjunction with 1512(c)(1), limiting prosecutions under 1512(c)(2) “to acts that affect the integrity or availability of evidence,” as the lawyers for Fischer argue. The Justice Department counters that the plain meaning of the law clearly includes prosecutions like those being advanced in the wake of January 6.

City of Grants Pass v. Johnson (April 22) is another important case, addressing, in essence, whether cities can criminalize homelessness. Grants Pass passed a series of restrictive ordinances that the challengers argue “nominally prohibit camping, but in reality punish homeless people for sleeping or resting anywhere on public property at any time with so much as a blanket to survive the cold, regardless of whether they have anywhere else to go.” The city lost below at the U.S. Court of Appeals for the Ninth Circuit, asked the Supreme Court to review the case, and the justices took it up. Since then, the case exploded — with more than 40 amicus curiae briefs submitted on each side.

Notably, the United States also weighed in, supporting the idea that certain limitations should be held to be unconstitutional under the Eighth Amendment. Specifically, the Justice Department’s brief argued that “a city’s prohibition against sleeping in any public place with any form of bedding is in essence a prohibition against a person without access to indoor shelter continuing to live in the city at all. That is akin to a form of banishment, a measure that is now generally recognized as contrary to our Nation’s legal tradition.” The brief noted that its argument is “limited to laws that effectively criminalize status by prohibiting individuals from residing in a city while homeless.”

The Starbucks v. McKinney (April 23) case isn’t a frontal attack on the National Labor Relations Board, as is being raised in other cases pending in lower courts and proceedings discussed previously at Law Dork, but it is still worthy of note and could result in a decision that weakens the NLRB’s power.¹

Then, two cases that I’ve already covered here extensively at Law Dork. Moyle v. United States and Idaho v. United States (April 24) are the cases over the interpretation of the Emergency Medical Treatment and Active Labor Act (EMTALA) in a post-Roe era. The federal law requires emergency rooms to provide stabilizing treatment when necessary, and the Biden administration’s position is that that includes abortion in limited instances. Idaho argues otherwise, and believes its near-total abortion ban should control the availability of abortion in all circumstances in the state.

We discussed the EMTALA cases in March’s Law Dork Video.

And, finally, the last arguments of the term will be in Trump v. United States (April 25), the appeal where the court has allowed Trump, yet again, to delay his D.C. trial and make his argument that he maintains presidential immunity from criminal prosecution for life for actions taken in office. The U.S. Court of Appeals for the D.C. Circuit rejected his appeal this winter after U.S. District Judge Tanya Chutkan had rejected his immunity claim last year.

I’ll have more on the Trump immunity case next week — including in April’s Law Dork Video.

1. This case note was added to the list after initial publication, at 11:30 p.m.