PEOPLE FOR BLOG

Joining the Club

Yesterday, Sen. Amy Klobuchar shot down her colleague Tom Coburn’s assertion that the American people are less free now than we were 30 years ago, offering up some powerful illustrations of the progress women have made since 1980. “I think about whether people were more free in 1980,” she said, “it's all in the eyes of the beholder.”

Kagan, who if confirmed would be the fourth female Justice in the history of the Supreme Court, responded, “I think that there's no question that women have greater opportunities now, although they could be made greater still.”

Today, the Pew Research Center released a survey of attitudes toward working women throughout the world. One finding stood out:

Indeed, the United States and Germany reported an especially strong gap between the sexes on whether enough has been done to give women equality. Of those who believe in equal rights, many more American and German men believe their nations have made the right amount of changes for women, while many more women than men in those countries think more action is required.

“When you’re left out of the club, you know it,” said Prof. Jacqui True, an expert in gender relations and senior lecturer at the University of Auckland. “When you’re in the club, you don’t see what the problem is.”

This disparity in the perception of progress brings to mind Justice Ruth Bader Ginsburg’s fiery dissent to the Supreme Court’s ruling in Ledbetter v. Goodyear. In that ruling, the Court’s majority ruled that Lilly Ledbetter couldn’t collect her fair share after decades of pay discrimination because, they said, she would have had to report the discrimination before she even knew that it was taking place. At the time, Ginsburg was the only female member of the Supreme Court, and she knew what it was like to be “left out of the club.”

Introducing her dissenting opinion, Ginsburg said, “In our view, the Court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination.”

This isn’t to say that those who haven’t experienced discrimination can’t understand it. But it’s a powerful reminder of why it’s so important to have a diversity of voices, coming from a diversity of experiences, in positions of power.
 

PFAW

“A Judicial Philosophy that Keeps Faith with the Constitution”: Our Endorsement of Kagan

Here at PFAW, we were all eager to hear what Elena Kagan had to say in this week’s hearings, and have spent the past two days in the Senate hearing room or glued to CSPAN 3  listening to her testimony. We were all extraordinarily impressed, and PFAW this afternoon endorsed Kagan’s nomination to the Supreme Court. PFAW president Michael Keegan’s statement:

“The departure of Justice Stevens leaves a hole in the Supreme Court that will be difficult to fill. Throughout his career, Justice Stevens stood up for his belief that all people, no matter their situation, deserve a fair hearing in the courts. Judging by her record of service, her writing, and her testimony before the Judiciary Committee, Elena Kagan is the right person to fill that vacancy.

“Solicitor General Kagan gave the American people a sound and thoughtful lesson about the Constitution as a timeless document, brilliantly conceived by its framers to be interpreted over time in light of new situations and new factual contexts. Her testimony gave voice to a view of the Constitution and the role of judges in sharp contrast to Chief Justice Roberts’ misleading analogy to an umpire calling balls and strikes. And she refused to buy into the cramped and distorted view of the role of the judiciary in interpreting the Constitution that was pushed by some Republican Senators.

“Elena Kagan’s testimony made clear that she has the intellect and the command of the law to stand firm for a judicial philosophy that keeps faith with our Constitution--its amendments, its history, and its core values like justice and equality under the law.

“Instead of engaging in a serious debate however, some Republican Senators chose to lob dishonest attacks at General Kagan's support for our armed forces and, inexplicably, at her mentor Justice Thurgood Marshall. Justice Marshall was a passionate advocate for our Constitution, and it's thanks to him that all Americans have access to its protections. For Senators to repeatedly attack the man who helped our nation move past our shameful history of segregation would be foolish if it weren't just plain offensive.

“After carefully evaluating her record and her statements, People For the American Way is proud to support Elena Kagan's nomination to the Supreme Court.”
 

PFAW

Whose Freedom?

After debating 1776, we move on to a conversation about 1980.

In his long complaint about the Commerce Clause, Sen. Coburn declared that Americans had more freedom 30 years ago than we do now.

Sen. Klobuchar then took the floor, and brought up a few interesting points in response.

  • In 1980, there were no women Supreme Court Justices
  • In 1980, there were no women on the Senate Judiciary Committee
  • In 1980, there were was one woman in the United States Senate


“I think about whether people were more free in 1980,” she said, “it's all in the eyes of the beholder.”
 

PFAW

Constitutional Fidelity, Except for the Other Stuff

First, Sen. Tom Coburn railed against Solicitor General Kagan for her refusal to agree to his skewed and narrow vision of the original intent of the Constitution.

Then he switched tacks to rail against her for not subscribing to a view of the law outside of the Constitution.

Coburn asked Kagan if she believed that there was a fundamental right for humans to own guns, and then broadened his question to ask if she believes there exist “fundamental rights” and “natural rights” outside of the U.S. Constitution.

“I don’t have a view of what our natural rights are outside of the Constitution and the law,” Kagan responded. “I’m not saying I don’t believe in fundamental pre-existing rights, but my job as a Justice would be to enforce the Constitution.”

Coburn was not satisfied. He demands, apparently, that judges interpret the law ONLY with the original words of the Constitution…but ALSO with a belief in an undefined set of “natural rights.”

Huh?
 

PFAW

Dreaming Of What Might Have Been Had Boykin Testifed At Kagan's Hearing

Last week we noted that Senate Republicans had put Gen. Jerry Boykin on their list of witnesses to testify against Elena Kagan during her Supreme Court confirmation hearing, seemingly unaware of just how radically right-wing his views were.

Sadly, they quickly wised up and dropped him from the list but, in a serendipitous turn of events, the AFA's Bryan Fischer had Boykin on his radio program today to discuss the entire issue.

In this clip, Fischer calls out Senate Republicans to caving to a bunch of bloggers sitting around in the pajamas and clicking away on their laptops, and Boykin agrees, saying that Sen. Sessions called him to apologize but that doesn't change the fact that there are no good Christian men in Congress who are willing to stand up for the truth.  Boykin then goes on to give a quick synopsis of what he would have said, had his invitation not been rescinded, eventually getting into Sen. Inhofe territory suggesting that the troops will be unwilling to die for their fellow gay soldiers:

Now, that sort of testimony might be relevant to a hearing about Don't Ask, Don't Tell, but that Boykin intended to deliver it during a confirmation hearing for Kagan seems rather odd, to put it mildly.  

So it seems pretty clear that Senate Republicans made a smart move by dropping Boykin ... after all, I am sure that the last thing they wanted was to watch Boykin go off about how Islam is not a religion and should not be protected by the First Amendment:

Crossposted from RWW.

PFAW

Senator Hatch Defends Citizens United

During his second round of questioning, Senator Hatch again spent a significant amount of time defending the Court’s ruling in Citizens United. I won’t go into a long explanation of why the decision is wrong (as we’ve done several times before) or point out that it’s tremendously unpopular. What should be remarked is that, for the first time in a while, conservatives are routinely being forced to defend the decisions made by conservative Justices (Ledbetter springs to mind as another example.)

When it comes to the debate about the Court and the Constitution, the right-wing is on its heels.

PFAW

Thurgood Marshall Roundup

We were far from the only ones noting the surprising volume of GOP attacks on Justice Thurgood Marshall on Monday. Talking Points Memo counted the number of references to the illustrious Justice on the opening day of Kagan’s hearings:

In an example of how much the GOP focused on Marshall, his name came up 35 times. President Obama's name was mentioned just 14 times today.

Harpers Magazine shared my confusion about what might have motivated Republican Senators to engage in these attacks:

So what made Marshall the image of an “activist judge”? Was it his role in Brown v. Board of Education, the decision that put an end to the lie of “separate but equal” education across the American South, forcing desegregation in public education? Or perhaps it was the fact that he won nearly all of his Supreme Court cases, most of them on behalf of the NAACP, and all of them testing the official refuges of bigotry and racism?

The attacks were led, predictably, by neoconfederate senator Jeff Sessions of Alabama, the Republican ranking member and the Theodore Bilbo of his generation, who snarled that Kagan’s affection for her former boss “tells us much about the nominee”—a comment clearly intended as an insult. But so many other Republican senators joined in—Orrin Hatch, John Cornyn, and Jon Kyl, for instance—that it appears to have been an agreed talking point. (I see Dana Milbank reports that Republican staffers were actually handing out opposition research on Marshall’s voting record after the hearing–another sign that the war on Marshall was a formal strategy.)

At first it was unclear to me what possible complaint about Justice Marshall the Republican Senators could have had. But Dana Milbank at the Washington Post cleared things up:

Republicans saw trouble in this Marshall fellow. "In 2003, Ms. Kagan wrote a tribute to Justice Marshall in which she said that, 'in his view, it was the role of the courts in interpreting the Constitution to protect the people who went unprotected by every other organ of government,' " Kyl complained.

Protecting the unprotected? Say it ain't so!

And that wasn't all. Kagan also emphasized Marshall's "unshakable determination to protect the underdog," Kyl said.

Let’s take a moment to remember all the great things Justice Marshall did for this country. Stephanie Jones’ thoughtful piece in the Washington Post this morning details his vital role in fulfilling the promises of the Constitution. She summarizes:

Marshall was a great jurist who used his skills to move this country closer to being a more perfect union. As a lawyer and a justice, he protected us from activist judges and the cramped thinking of politicians who tried to keep our country in the muck. And he never forgot how the high court's rulings affect the least of us.

So what do Republicans have to gain from attacking this giant? Out west at the Seattle Post-Intelligencer, columnist Joel Connelly reminded us that attacks on Marshall are just part of a larger right wing trend to de-legitimize American heroes with whom they disagree:

The political right has taken to beating up on great American presidents, with the "progressive" Theodore Roosevelt demonized by Fox's Glenn Beck, and Thomas Jefferson ordered banished from textbooks by the Texas Board of Education.

At confirmation hearings for Supreme Court nominee Elena Kagan, Senators from the party of Abraham Lincoln have discovered -- literally -- a new black hat. They are denouncing and labeling Thurgood Marshall, our country's greatest civil rights lawyer.

 

UPDATE: even conservatives are perplexed by the Republicans' anti-Marshall strategy. Check out Joe Scarborough mocking Senate Republicans:

 

PFAW

Franken on Rent-A-Center and Forced Arbitration

Senator Al Franken’s questioning included a reference to the recent decision in Rent-A-Center v. Jackson, which was particularly well explained. He applauded Gen. Kagan’s comment from yesterday, where she said that the Court should provide equal access to everyone. However, arbitration means a case doesn’t go to court, and in Rent-A-Center the Roberts Court effectively decided that, in certain cases, the person who decides whether arbitration is appropriate is . . .  the arbiter.

These disputes often pit large corporations against individuals, and arbitration proceedings almost always benefit these companies, by keeping costs down and avoiding costly attorneys’ fees. Not to mention that corporations often keep private arbitrators in business – it’s pretty clear that it’s in an arbitrator’s best interest to rule in favor of a corporation, rather than an individual, to keep that money coming in.
 
Applause to Sen. Franken for acknowledging, very eloquently, the pro-business bent of the Supreme Court.

PFAW

The Kagan "Smoking Gun"? Hardly

It seems that the Right is all agog over this article in the "National Review" by Shannen Coffin, claiming that Elena Kagan "manipulated the statement of a medical organization to protect partial-birth abortion" while working in the Clinton White House.

Here is the gist of Coffin's "bombshell":

There is no better example of this distortion of science than the language the United States Supreme Court cited in striking down Nebraska’s ban on partial-birth abortion in 2000. This language purported to come from a “select panel” of the American College of Obstetricians and Gynecologists (ACOG), a supposedly nonpartisan physicians’ group. ACOG declared that the partial-birth-abortion procedure “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.” The Court relied on the ACOG statement as a key example of medical opinion supporting the abortion method.

Coffin points to this draft copy [PDF] of the ACOG statement which does not include the phrase “[An intact D & X] may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman." Instead, that phrase was handwritten in as a suggestion from Kagan.

The phrase was included in the final version and has apparently been cited by judges in cases involving the prodecure ... and this is somehow proof that Kagan is willing to "override a scientific finding with her own calculated distortion in order to protect access to the most despicable of abortion procedures seriously twisted the judicial process" and therefore is unfit for the Supreme Court.

Of course, if you bother to actually read the document Coffin cites, or the final ACOG statement itself, it is abundantly clear that this one sentence fits with the overall position being advocated by ACOG, which was that any "legislation prohibiting specific medical practices, such as intact D & X, may outlaw techniques that are critical to the lives and health of American women. The intervention of legislative bodies into medical decision making is inappropriate, ill advised, and dangerous.."

Here is the entire ACOG statement, so you can judge for youself wheter the inclusion of this one sentence in any way changes ACOG's fundamental point or distorts science:

THE AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS,

Washington, DC.

ACOG Statement of Policy

STATEMENT ON INTACT DILATATION AND EXTRACTION

The debate regarding legislation to prohibit a method of abortion, such as the legislation banning ``partial birth abortion,'' and ``brain sucking abortions,'' has prompted questions regarding these procedures. It is difficult to respond to these questions because the descriptions are vague and do not delineate a specific procedure recognized in the medical literature. Moreover, the definitions could be interpreted to include elements of many recognized abortion and operative obstetric techniques.

The American College of Obstetricians and Gynecologists (ACOG) believes the intent of such legislative proposals is to prohibit a procedure referred to as ``Intact Dilatation and Extraction'' (Intact D & X). This procedure has been described as containing all of the following four elements:

1. deliberate dilatation of the cervix, usually over a sequence of days;

2. instrumental conversion of the fetus to a footling breech;

3. breech extraction of the body excepting the head; and

4. partial evacuation of the intracranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus.

Because these elements are part of established obstetric techniques, it must be emphasized that unless all four elements are present in sequence, the procedure is not an intact D & X.

Abortion intends to terminate a pregnancy while preserving the life and health of the mother. When abortion is performed after 16 weeks, intact D & X is one method of terminating a pregnancy. The physician, in consultation with the patient, must choose the most appropriate method based upon the patient's individual circumstances.

According to the Centers for Disease Control and Prevention (CDC), only 5.3% of abortions performed in the United States in 1993, the most recent data available, were performed after the 16th week of pregnancy. A preliminary figure published by the CDC for 1994 is 5.6%. The CDC does not collect data on the specific method of abortion, so it is unknown how many of these were performed using intact D & X. Other data show that second trimester transvaginal instrumental abortion is a safe procedure.

Terminating a pregnancy is performed in some circumstances to save the life or preserve the health of the mother. Intact D & X is one of the methods available in some of these situations. A select panel convened by ACOG could identify no circumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman. An intact D & X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances can make this decision. The potential exists that legislation prohibiting specific medical practices, such as intact D & X, may outlaw techniques that are critical to the lives and health of American women. The intervention of legislative bodies into medical decision making is inappropriate, ill advised, and dangerous.

Approved by the Executive Board, January 12, 1997.

PFAW

Not Activism, Patriotism

[Thurgood Marshall] taught us all what it means to love our country enough to work to make it a little better, a little stronger and a little closer to what it's supposed to be. That's not activism. That's patriotism.

Stephanie Jones’ op-ed in the Washington Post this morning explains perfectly why the Republican line of attack against Justice Marshall is so, so wrong. All senators who have hopped on to the anti-Marshall train this week need to read it, and then explain themselves.
 

PFAW

Kagan: Judges Have to Exercise Judgment

Sen. Amy Klobuchar asked Solicitor General Kagan this morningwhat she thinks of Chief Justice Roberts famous “balls and strikes” metaphor of judging. Kagan answered that the metaphor is correct in that judges have to be neutral and fair, and “realize that they are not the most important person in the system of government.”

But, she added, she disagreed that judging is a “robotic” enterprise…especially in the tough cases that come before the Supreme Court.

“Judges do have to exercise judgment,” Kagan said, “They're not easy calls. That doesn't mean that they're doing anything other than applying law. … But we do know that not every case is decided 9-0, and that's not because anybody's acting in bad faith. It's because those legal judgments are ones in which reasonable people can reasonably disagree sometimes.”

It’s nice to hear a nominee and a senator discussing the Court’s work in an honest—and nuanced—way.

[Updated with polish transcript]
 

PFAW

Coburn Wants the Supreme Court to Stop Congress from Spending

Senator Tom Coburn just launched an . . . interesting line of questioning against Elena Kagan, claiming that the Supreme Court has a broad mandate to stop Congress from running up a national debt.

SCOTUSblog’s initial notes of Coburn’s statement:

The Commerce Clause has gotten us to a place where we'll have a $1.6 Trillion deficit for our kids to pay. We have this expansive cost, and we have to have some limit on it. If the courts aren't going to limit within original intent, we have to throw out most of the Congress.

Actually, Senator Coburn, the American people do have a way to “throw out most of the Congress” if we’re unhappy with what they're doing. In fact, we get a chance to do it every two years.

Senator Cardin, following Coburn, put it just right: “His definition of original intent is similar to some of my colleague’s definition of judicial activism . . .  you use it to get results.”

PFAW

Outdated Stereotypes and Gender-Based Discrimination in Flores-Villar v. United States

On Monday, People For the American Way Foundation signed on to an amicus brief urging the Supreme Court to reverse the Ninth Circuit’s decision to enforce a section of the Immigration and Nationality Act that imposes a greater residency requirement for unmarried citizen fathers to transfer citizenship to their children born abroad than on unmarried citizen mothers.

The statute permits unmarried citizen fathers to transmit citizenship only if they have lived in the U.S. prior to the child’s birth for ten years, five of them after the age of 14. Mothers, on the other hand, are only required to have lived in the U.S. for just one year prior to the child’s birth. The petitioner’s father was 16 when his son was born, making it impossible for him to meet the requirement of five years of residency after age 14. Mr. Flores-Villar filed suit on the grounds that the law violates the equal protection component of the Fifth Amendment’s due process clause.

PFAWF’s brief, authored by the National Womens’ Law Center, argues that such gender-based discrimination perpetuates the old stereotype that unwed fathers have less meaningful relationships with their children than do unwed mothers, and the Supreme Court has rejected the use of such stereotypes in justifying gender-based classifications. The classifications also do nothing to further the government’s stated objective of encouraging parent-child relationships, and in countries where citizenship is derived from the father, would render stateless the children of fathers who cannot meet the requirements.

If the Supreme Court were to uphold the Ninth Circuit’s decision, it would be ignoring over 30 years of Equal Protection jurisprudence to enforce a discriminatory law that perpetuates outdated stereotypes and is harmful to family relationships.

PFAW

Any Group With Just 15% Support Should Not Be Calling Anyone an "Ideologue"

Outside of the incessant Twittering of the Judicial Crisis Network's Carrie Severino, I haven't seen much commentary from the Right on Elena Kagan's hearing today ... and the few things I have seen have tended to be along the line of this ridiculous press release from the American Life League:

"Elena Kagan has revealed herself as the pro-abortion activist she is. The 'health of the mother' exception has long been code for abortion on demand for any reason under the sun - including financial 'health.'

"Kagan's position is clearly opposed by the majority of Americans who self-identify as pro-life. While we are not shocked that an Obama nominee would be anything but rabidly pro-death, we are compelled to demand representation from our elected leaders: this pro-abortion ideologue is not fit to serve on the Supreme Court.

While poll results may show that a bare plurality of Americans consider themselves "pro-life," a whopping 80% believe that the option should be available in certain circumstances ... like for "the health of the mother":

Only 15% believe abortion should be illegal in all circumstances, which is the position held by the American Life League .. and yet ALL claims that it is Kagan who is the extremist ideologue.

Cross-posted from RWW.

PFAW

RNC v. FEC: Court Decides Against Soft Money, But Barely

As Miranda reported back in May, the Citizens United decision mobilized its proponents in the direction of securing more rights under the First Amendment. The specific target? Soft money contributions.

In the case, RNC v. FEC, the RNC and several affiliate groups argued political parties should be allowed to raise and spend unlimited "soft" money contributions for purposes other than influencing national elections.

The RNC, the CA GOP and the San Diego Co. GOP had claimed they should be allowed to raise the money for redistricting, non-federal state elections and grassroots advocacy. A 3-judge panel in DC Circuit Court ruled unanimously against the RNC earlier this year. Only 3 members of the Supreme Court wanted to hear the case; 4 members must approve for the Court to accept a case.

The Court’s decision today not to take the case – with Scalia, Thomas and Kennedy on the other side - is a slim victory for the American people, already harmed by the harsh reality of the Roberts Court’s pro-corporation bent. We should temper our happiness, however, given the fact that a similar case is already pending in another circuit court, and pro-corporation groups are energized about its prospects.

Meanwhile, the U.S. Court of Appeals for the Fifth Circuit recently heard Cao v. FEC May 25. This case is a similar challenge to party restrictions, questioning the very low coordination limits for political parties and congressional candidates.

PFAW