Presidential Primaries and Supreme Court Drama

Of Counsel
Steptoe & Johnson LLP


March saw a flurry of activity in Washington, D.C., as policymakers delved into the appropriations process — in which Congress sets the discretionary funding for various activities, including justice programs, as well as the funding for general government operations. In addition, a significant portion of the policy debate centered on device encryption and “backdoor access,” as lawmakers considered whether Apple should comply with the FBI’s request to unlock the iPhone of one of the San Bernardino shooters.

On March 1, the presidential primary season also shifted into high gear when the candidates in both parties faced off in what is commonly referred to as “Super Tuesday,” the day when 12 states hold primary elections and caucuses: Alabama, Alaska, Arkansas, Colorado, Georgia, Massachusetts, Minnesota, Oklahoma, Tennessee, Texas, Vermont and Virginia. Voters in Florida, Illinois, Missouri, North Carolina and Ohio cast their ballots on March 15.

In the Republican primaries, businessman Donald Trump won by double digits in Alabama, Florida, Georgia, Massachusetts and Tennessee. He also won by a significantly narrower margin in Arkansas, Illinois, North Carolina, Vermont and Virginia. Senator Ted Cruz (R-Texas) achieved a resounding victory in his home state, where he defeated Trump 44% to 27%. He also had narrow successes in Alaska and Oklahoma. Finally, Ohio Governor John Kasich won his home state.

Trump is now clearly the GOP frontrunner, and with Florida Senator Marco Rubio suspending his campaigning, only Cruz and Kasich are left as alternatives. The pressing question is whether Trump can amass enough delegates for the nomination before the convention. There has been significant talk in GOP circles of an open convention if no candidate gains the required delegates on the first ballot or the party establishment changes the rules to deny Trump the nomination.

On the Democratic side, former Secretary of State Hillary Clinton has clearly moved into the frontrunner position, defeating Senator Bernie Sanders (D-Vt.) by a substantial margin in Alaska, Arkansas, Georgia, Tennessee, Texas and Virginia on Super Tuesday, and then sweeping the March 15 states. Sanders, meanwhile, won the Super Tuesday states of Colorado, Minnesota, Oklahoma and his home state of Vermont, and then, most notably, scored a surprise upset in Michigan on March 9. Despite Sanders’ primary victories, Clinton holds a strong delegate lead. To win the Democratic nomination, a candidate must receive 2,383 delegates — and as of this writing, Clinton leads Sanders 1,132 delegates to 818. In the contested 2008 Democratic primary, then-Senator Barack Obama’s delegate lead over Clinton was never as large as Clinton’s lead is now over Sanders.

Pepper-Spray Legislation

On March 11, President Obama signed into law the Eric Williams Correctional Officer Protection Act (S. 238), a measure that seeks to provide thousands of federal prison officers with pepper spray. Introduced by the two senators from Pennsylvania, Pat Toomey (R) and Bob Casey (D), the legislation was named for Eric Williams, a correctional officer who was murdered by an inmate while on duty at a federal penitentiary in Wayne County, Pennsylvania. The goal of the legislation, according to Toomey and Casey, is to enhance the security of correctional workers at facilities across the country.

PORAC supported the legislation both as a standalone bill and as part of the Senate’s Sentencing Reform and Corrections Act of 2015 (S. 2123).

The Supreme Court Vacancy

On February 13, while on a hunting trip in rural Texas, U.S. Supreme Court Justice Antonin Scalia passed away at age 79. Scalia was appointed to the high court by President Ronald Reagan in 1986 and built a reputation as one of the nation’s most brilliant, conservative jurists.

A month later, on March 16, President Obama nominated Judge Merrick Garland to fill the seat left vacant by Scalia’s death. Garland serves as the Chief Judge for the United States Court of Appeals for the District of Columbia. Before becoming a judge, he worked as a federal prosecutor at the Department of Justice, where he oversaw some of the most significant investigations during President Bill Clinton’s tenure. His portfolio includes cases involving the Oklahoma City bombing, the Unabomber and the Atlanta Olympics bombing. Garland joined the appeals court in 1997, having been confirmed by the Senate by a 76-23 vote.

In the weeks after Scalia’s death, Senate Republicans had pledged not to hold confirmation hearings, votes or meetings with Obama’s nominee — essentially obstructing the confirmation of a replacement for Scalia until after the 2016 elections. Thus, during his announcement, Obama called on the Senate to hold a fair confirmation proceeding for Garland.

Despite the President’s call to Congress, Senate Majority Leader Mitch McConnell (R-Ky.) reiterated his pledge that the Senate would not take any steps toward confirming a nominee put forth by Obama. He cited longstanding precedence of the Senate not confirming high-level judicial nominations during the final year of a president’s term. Many of McConnell’s Republican colleagues echoed this sentiment, including Senator Chuck Grassley (R-Iowa), Chairman of the Senate Judiciary Committee, who emphasized the importance of upholding the principle that the nomination should be made by the president whom people choose in the election that is now underway.

There were, however, a few Republican senators who said they would, at the very least, meet with Garland, including Kelly Ayotte (R-N.H.), Rob Portman (R-Ohio) and Mark Kirk (R-Ill.) — all of whom face tough re-election campaigns this November. Though it remains to be seen what impact, if any, these meetings will have on the Senate’s decision to take up Garland’s confirmation, it seemed to signal a decided shift within some members of the Republican Party.

Supreme Court Case Updates

Since the last issue of PORAC LE News, the Supreme Court has heard several cases addressing matters of importance to law enforcement.

On February 23, the court heard Taylor v. United States, a case concerning the applicability of the Hobbs Act. The Hobbs Act establishes criminal penalties for acts of robbery or extortion that affect interstate commerce. For any Hobbs Act violation, the government must prove beyond a reasonable doubt that interstate commerce was affected. At issue in Taylor was whether the robbery (or attempted robbery) of a drug dealer by another individual is inherently an economic enterprise that satisfies the “interstate commerce” element of the offense under the Hobbs Act. If it were an inherently “interstate” offense, the government would not need proof beyond a reasonable doubt to convict the defendant.

On February 29, the court took up the case of Voisine v. United States, which concerns a federal law that prohibits individuals who have previously been convicted of a misdemeanor of domestic violence from possessing firearms and ammunition. The plaintiffs, who were convicted under Maine state law for simple assault and misdemeanor domestic violence, allege that their convictions should not automatically qualify as misdemeanor crimes of domestic violence under federal law. In their view, because a person could be convicted under Maine law for conduct that is merely “reckless,” a lower standard than the federal standard that requires “intentionality,” the state conviction should not automatically qualify as a federal misdemeanor.

The U.S. Court of Appeals for the First Circuit rejected that argument, and the plaintiffs appealed to the Supreme Court. Thus, the court will determine whether a misdemeanor crime with the mens rea (mental state) of recklessness qualifies as a misdemeanor crime of domestic violence for the purposes of applying federal law, where the mens rea is “intentionality.” During oral argument, conservative Justice Clarence Thomas broke his decade-long silence on the bench, pressing the government several times to explain why a misdemeanor conviction would be enough to permanently take away an individual’s Second Amendment rights.

At the time this issue went to print, the Supreme Court had not yet handed down a decision in either case — and it is unclear when the decisions will be published.