Winner of Alabama Senate Race Will Help Shape Judiciary

(CN) – Next Tuesday morning, voting booths across Alabama will open to decide the race between Republican Roy Moore and Democrat Doug Jones for who will become the state’s next U.S. senator, a role in which they will help Congress fill judicial vacancies across the country.

In this Dec. 5, 2017, photo, former Alabama Chief Justice and U.S. Senate candidate Roy Moore speaks at a campaign rally in Fairhope Ala. (AP Photo/Brynn Anderson)

The race has centered on health care, abortion and, most of all, allegations that Roy Moore pursued sexual relationships with teenage girls when he was in his 30s. He is accused of molesting a girl as young as 14, but Moore denies the allegations.

Both Jones and Moore spent formative parts of the career in the Alabama legal system, and those experiences shaped their campaign platforms regarding the judiciary at a time when the U.S. Senate is working to fill a large number of vacancies in the system.

At the end of November, Senate Majority Leader Mitch McConnell wrote on Twitter that, compared to former President Barack Obama’s first year in office, the Republican-led Senate had confirmed three times the number of judicial nominees to federal appeals courts.

Of the 890 federal judge positions in the nation, 144 still sit vacant at the beginning of December, which amounts to 16 percent of the federal judiciary, according to the Administrative Office of the U.S. Courts.

Because of the high number of vacancies, many believe that Trump’s lasting legacy will be the judges he nominates, with U.S. Supreme Court Justice Neil Gorsuch as one example.

Republicans possess a 52-person majority in the Senate and any change could erode the balance of power.

“I think that if Roy Moore is elected that means there is yet another reliable vote for President Trump’s judicial nominees,” Jessica Levinson, a professor at Loyola Law School in Los Angeles, told Courthouse News via email. “This would help to ensure and hasten President Trump’s reshaping of the judiciary.”

According to Moore’s positions listed on his campaign website, one of his platforms is his view of the Constitution. He says his biggest issue is activist judges who don’t follow the Constitution and he would support impeaching those judges.

In its 228-year history, Congress has only brought impeachment proceedings against 15 judges.

“Judge Roy Moore has a long history of combating liberal activist judges who sidestep the legislative process to impose a personal agenda on the American people,” the Moore campaign said in a statement to Courthouse News. “Judge Moore will work with President Trump to confirm conservative judges and make the Constitution – not federal judges – once again the ‘supreme law of the land.'”

Moore also takes issue with the Supreme Court’s legalization of same-sex marriage and abortion. He sees both as unconstitutional rulings.

“I have said very clearly: Roe v. Wade is not established precedent,” Moore said at a rally on Tuesday where he appeared with former White House advisor Steve Bannon. “It’s a violation of the Constitution.”

Just last year, when Moore sat as chief justice of the Alabama Supreme Court, he issued an order to the state’s probate judges on Jan 6, 2016 saying the landmark Supreme Court case legalizing same-sex marriage across the country, Obergefell v. Hodges, did not apply to Alabama.

Instead, Moore claimed the decision only applied to the few states in the Sixth Circuit that brought the question before the nation’s high court.

In his order to the state’s probate judges, Moore said because of an “elementary principle of federal jurisdiction,” they had to comply with Alabama’s laws concerning marriage.

“A judgment only binds the parties to the case before the court,” Moore wrote at the time.

It was an order that eventually got the former judge removed from the Alabama Supreme Court for the second time. The first time catapulted Moore to the national stage, when he installed and refused to remove a 5,280-pound granite monument of the Ten Commandments in the Alabama Judicial Building.

This week, Moore told conservative outlet One America News Network that if he is elected Alabama’s next senator, he would support striking down the Senate’s filibuster rule, which requires 60 senators to agree to end a delay to voting on a piece of legislation.

He also said he thinks he could do good work on the judiciary committee.

“I understand a lot about the court system, and about judges, about their tendency to become more liberal when they get on the courts, if you will,” Moore said. “I think I could see through a lot of people in what they stand for and when they would really be conservative judges.”

Meanwhile, the Jones campaign said in a statement to Courthouse News, “Doug has said repeatedly that when he serves in the Senate, he will give each nominee a full and fair hearing.”

While Moore has shaped his stance from the battles he fought over displaying the Ten Commandments and resisting Obergefell, Jones pulled from his experience as a former federal prosecutor to forge his platform. Jones served as the U.S. attorney for the Northern District of Alabama from 1997 to 2001.

In his campaign platform, Jones said spending on prisons has squeezed spending on schools, and that minimum sentencing rules limited his ability to fully do his job as a prosecutor.

Jones’ stance has caused Moore to lash out against his opponent, saying Jones is soft on crime.

But on the campaign trail, Jones tells supporters how he prosecuted members of the Ku Klux Klan who plotted and then carried out the 16th Street Baptist Church bombing in 1963, an act that killed four girls and galvanized the passage of the 1964 Civil Rights Act.

He also prosecuted Eric Rudolph, a man who bombed a Birmingham abortion clinic and later set off a bomb at the 1996 Olympic Games in Atlanta, Ga.

In September 2014, Jones spoke at the Brennan Center for Justice at the New York University School of Law and outlined what he thought were needed changes in the justice system.

Crime had dropped in recent years, Jones said, thanks to the war on drugs. But as a result, hundreds of billions of dollars of the federal budget flowed towards incarcerating people. More crimes were listed as federal offenses. The role of U.S. attorneys grew, but they also had less prosecutorial discretion than in the past.

And while the Supreme Court made sentencing guidelines discretionary, Jones said, Congress still wrote the Department of Justice’s budget that directed money to prosecuting specific crimes, such as drugs or firearms.

“It’s going to take some courage for both our political leaders as well as the prosecutors, regardless of the administration, in a bipartisan effort to come up with new solutions that don’t require prosecutions and incarceration,” Jones said three years ago. “It’s going to take Congress in the way they look at the budgets.”

Last month, Alabama Gov. Kay Ivey said she will still vote for Moore despite the allegations of sexual misconduct because of future Supreme Court vacancies.

“I believe in the Republican Party, what we stand for, and most important, we need to have a Republican in the United States Senate to vote on things like Supreme Court justices, other appointments the Senate has to confirm and make major decisions,” Ivey said Nov. 17.

The winner of Tuesday’s contest will not only help select potential replacements for the nation’s highest court, but will play a part in filling some of the 144 federal judgeships still awaiting an appointment.

The Dec. 12 election comes less than a week after the Senate Judiciary Committee advanced the nominations of 10 federal judges, signaling a push by the Trump administration to rapidly reshape the judiciary.

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