PEOPLE FOR BLOG

Previewing the Right’s Supreme Court Playbook

The Right wing has made it fairly clear that they will use whatever tactics necessary to make Elena Kagan’s Supreme Court confirmation process as noisy and contentious as possible—not because of any substantive objections to Kagan as a nominee, but because they think making a racket might help them out in November’s elections.


People For has been keeping an eye on the attacks that the Right wing has been lobbing on Kagan, and we’ve laid out the four main strategies we’re seeing in a new Right Wing Watch report.

  1. Push the circular logic that goes: “Obama is radical so Kagan is radical so Obama is radical.”
  2.  Recycle the old and distorted attacks about “empathy” to attack the nominee’s “understanding.”
  3. Lie big and lie often
  4. Use confirmation hearings to court anti-government tea-party voters


You can read the full report here or print yourself a copy and follow along as Kagan’s confirmation hearings unfold.

PFAW

Dawn Johnsen Speaks Out on the Office of Legal Counsel

Dawn Johnsen, the law professor who was forced in April to withdraw her nomination to head the DOJ’s Office of Legal Counsel, has written a forceful op-ed in today’s Washington Post. Johnsen, an exceedingly qualified candidate who was the victim of a fifteen month Republican obstruction effort, writes that the President and Senate need to quickly install a new OLC head—and to pick someone who will lead the office in an honest and nonpartisan way:

In 2004, the leak of a controversial memo on the use of torture catapulted the Justice Department's Office of Legal Counsel into the spotlight. Fallout and debate continue, including in the context of my nomination -- withdrawn this spring -- to head this office. While attention understandably is focused on confirming the president's Supreme Court nominee, the OLC remains, after six years, without a confirmed leader.

It is long past time to halt the damage caused by the "torture memo" by settling on a bipartisan understanding of the proper role of this critical office and confirming an assistant attorney general committed to that understanding.

There is no simple answer to why my nomination failed. But I have no doubt that the OLC torture memo -- and my profoundly negative reaction to it -- was a critical factor behind the substantial Republican opposition that sustained a filibuster threat. Paradoxically, prominent Republicans earlier had offered criticisms strikingly similar to my own. A bipartisan acceptance of those criticisms is key to moving forward. The Senate should not confirm anyone who defends that memo as acceptable legal advice.

Johnsen is right that the OLC should be led by a fierce advocate of the rule of law—someone like Johnsen herself. We hope that the debate over the next OLC nominee will, unlike the last debate, reflect the importance of this qualification.

 

PFAW

LGBT Candidates Did Well in Tuesday’s Primaries

Not only did Tuesday’s primaries fail to bring about the wave of anti-gay sentiment that some conservatives had hoped for…it was a banner day for openly LGBT candidates. Gay & Lesbian Victory Fund, a PAC that endorses “qualified, committed LGBT candidates,” backed 21 candidates in Tuesday’s elections—and 17 of them won.

(This has, of course, been of great concern to some in the Religious Right, as Right Wing Watch reports).
 

PFAW

Progressive Candidate Wins Soundly in Iowa Gay Marriage Battleground

Among the interesting results of lower-profile races in yesterday’s primaries was the victory of progressive incumbent Ako Abdul-Samad over a well-funded socially conservative challenger in Iowa’s 66th House District. The victory is significant because the Des Moines district is at the center of the marriage equality battle, and Abdul-Samad’s challenger was well-funded by a group intent on axing the state’s new same-sex marriage law:

In the Democratic primary for House District 66 — considered by many to be ground zero in the battle over same-sex marriage — incumbent Ako Abdul-Samad of Des Moines won by a huge margin over social conservative Clair Rudison Jr. 75-25. Despite numerous attack mailers in the closing days of the race, as well as support from the anti-gay group Iowa Family Policy Center, Abdul-Samad emerged victorious in one of the most heavily Democratic districts in the state.

As the New York Times reported yesterday, the tidal wave of voter outrage against same-sex marriage that Iowa social conservatives had hoped to see this year never materialized. Abdul-Samad’s sound victory in a race that had been making progressives nervous is a small but significant indicator of that.
 

PFAW

The Roberts Court’s Pro-Corporate Batting Average

The Constitutional Accountability Center has just released a statistical study of the current Supreme Court’s pro-corporate voting patterns. And guess what? The numbers back the trend that’s anecdotally hard to miss.

CAC’s statistical study tests empirically the idea that the conservatives on the Roberts Court tend to side with corporate interests. Our study examined every opinion released by the Roberts Court since Justice Samuel Alito began participating in decisions, and in which the U.S. Chamber of Commerce was either a party or an amicus curiae — a universe of 53 cases. This study reveals an overall success rate for the Chamber of 64% (34 victories in 53 cases), and a success rate of 71% in cases decided by a narrow (five-Justice) majority. The Court’s conservatives (Chief Justice Roberts and Justices Antonin Scalia, Samuel Alito, Clarence Thomas, and Anthony Kennedy) tend to vote together in their support for the Chamber, while the Court’s moderate/liberal bloc (including former Justice David Souter, who was on the Court for most of these rulings) was more centrist, casting only 41% of its votes in favor of the Chamber.

These data strongly support the proposition that there is a strong ideological component to the Justices’ rulings in business cases, with the Court’s conservatives frequently adopting the Chamber’s position. In one particularly startling finding, Justice Alito, since joining the Court, has never cast a vote against the Chamber of Commerce’s position in a closely divided case. This statistical evidence supports the charge by President Obama and Chairman Leahy that the Court’s conservative majority has a disturbing pro-corporate tilt, and this reality should provide an important frame for General Kagan’s upcoming confirmation hearing.

You can find CAC’s full report and analysis here. And check out People For’s extensive report on the Rise of the Corporate Court from earlier this year.
 

PFAW

Oil Disaster in the Gulf of Mexico: Reflections of Rev. L. Charles Stovall

Editor's note: Rev. L. Charles Stovall, a member of People For's African American Ministers in Action, contributed this post. Rev. Stovall is a pastor at St. Luke United Methodist Church in Dallas, Texas.

I met a man recently at a bus stop on my way to the office. Our conversation eventually came to the oil disaster in the Gulf of Mexico. He said that he once owned a scuba diving company in the Gulf and his clients were usually associated with oil companies that siphoned oil from the Gulf of Mexico.

One day while diving, they discovered an accumulation of oil on the Gulf floor. He said that the oil had formed a pool about six feet deep on the bottom. When reported to the oil company that had hired his service, he was told that if anything was reported to anyone else, his company would either be delayed in getting paid, or might not be paid at all. It was not reported.

Because of that encounter he is skeptical about what is currently happening and the “truth” being told about the oil disaster. He said the oil companies will lie, mislead, and try their best to wash their hands of responsibility. He also said that the oil on top of the water is only a fraction of the oil that we should be concerned about. According him, some of the oil will float to the surface, but much of the oil will remain underwater.

Read more...

PFAW

Oil Disaster in the Gulf of Mexico: Reflections of Rev. L. Charles Stovall

Editor's note: Rev. L. Charles Stovall, a member of People For's African American Ministers in Action, contributed this post. Rev. Stovall is a pastor at St. Luke United Methodist Church in Dallas, Texas.

I met a man recently at a bus stop on my way to the office. Our conversation eventually came to the oil disaster in the Gulf of Mexico. He said that he once owned a scuba diving company in the Gulf and his clients were usually associated with oil companies that siphoned oil from the Gulf of Mexico.

One day while diving, they discovered an accumulation of oil on the Gulf floor. He said that the oil had formed a pool about six feet deep on the bottom. When reported to the oil company that had hired his service, he was told that if anything was reported to anyone else, his company would either be delayed in getting paid, or might not be paid at all. It was not reported.

Because of that encounter he is skeptical about what is currently happening and the “truth” being told about the oil disaster. He said the oil companies will lie, mislead, and try their best to wash their hands of responsibility. He also said that the oil on top of the water is only a fraction of the oil that we should be concerned about. According him, some of the oil will float to the surface, but much of the oil will remain underwater.

Since our conversation, what he said has gained merit. One evening CNN reported that an underwater plume of oil twenty miles long was headed for Mobile, Alabama. That fact had been overshadowed by the immediate danger to the wetlands of Louisiana, the damage to the coastlines, the economic catastrophe, and the disruption of the way of life of the people of affected states. Even as I write another ominous massive underwater plume has been spotted.

The effects of this oil disaster will linger on for decades and generations. According to this man, the accumulation of oil they observed on the floor of the Gulf was the result of a spill that occurred more than twenty years ago, possibly in 1979. He says that tar balls from that event still wash up on some shores even today.

Several things come to mind. One is that liability needs to be established. British Petroleum (BP) and Transocean are in a finger pointing competition. BP was leasing the oil rig Horizon from Transocean. Both seem to want to find a way to cast blame on the other. So far I have not heard anything definitive about what caused the explosion that took the lives of eleven people, sank the Horizon, and resulted in the oil gushing into the Gulf.

I do not consider this “Obama’s Katrina” as some have referred to it as. Katrina was a natural disaster, this is not! The truth seems to be that this is another situation the Obama administration inherited from the previous Bush administration. My understanding is that the Bush administration backed off of requiring oil companies drilling in deep water to spend the money that would provide additional shut off valves and other safe guards in case of this type of occurrence. Because of that decision we find ourselves in a position where no amount of money and effort can compensate for the destruction of God’s creation nor replace the lives that were lost unnecessarily. One thing however has become clear. Our nation has an unhealthy relationship with oil companies. The Environmental Protection Agency (EPA) was ignored by BP when they told BP to stop using the dispersant it was using because of its toxicity. Other dispersants that are more environmental y friendly are available. In fact, the one used by BP has been banned by many other countries. Our government has allowed BP to determine what it is or is not going to do and this can no longer be accepted.

Three things we should be doing in going forward. First, we should remember that BP exists to make money for their stock holders. They are not ultimately concerned about the environment, but about profits. In fact, I wonder if the failed “top kill” attempt was a delay technique to buy time for BP until they could figure out a way to collect the oil from the drill. I wonder if BP is using the current dispersant because they already have contracts with the manufacturer. After all, this seems to be a lucrative well where each barrel is worth money. In addition, it needs to pay for the damage it is causing to life, livelihood, and the environment.

Although BP seems to have the technology, what it does with it should be directed by the government. It was mind boggling that video of the oil pouring out of the pipe was kept from the government until BP decided to show it. This is a national disaster. Because other nations share the gulf with us, this may well become an international event. This event should receive priority attention with the full force of the government acting on behalf of protection of the citizens and the natural resources of our nation.

Second, we should stop casually referring to this as simply “a spill” or “a leak.” A spill implies that something can be easily contained, wiped up and cleaned up. A leak implies that something can just be plugged up. This is a ruptured pipe that continues to bring devastation and wreck havoc. The reality of what is happening should not be understated or minimized. The government must take charge, and BP and Transocean should be held accountable for all current and future impact of this disaster.

Third and finally, we should watch, learn and be ready to respond as this plays out in light of the Citizens United vs. the FEC ruling by the Supreme Court that gave corporations the same rights as individuals. Since corporations operate in their own self interest, we need to insure that our government is not unduly influenced and controlled by corporations. If corporations can use their unlimited financial resources to influence elections, we will forever be enslaved by the will of corporations, many which are multi-national.

This current fiasco in the Gulf of Mexico is a good example as to why the government should control corporations, and not vice-versa. The remedy should not consider what is convenient or expedient for BP or Transocean. Currently, there is a parasitic relationship between the oil companies in the gulf region and the communities that rely on them. A parasite does not set out to kill the host, but keeps the host alive as long as the survival of the parasite depends on it. But the host is ultimately sickened and weakened by the draining of the nutrients by the parasite. Hopefully, we will find a way to not only end our dependence on foreign oil, but we will seek a future the releases us from the control of the oil companies.

As we move forward in this current crisis, all solutions to protecting our environment, our families and future generations should be taken into consideration. This should not depend on who BP or Transocean already have contracts with, but only on what works.

The conversation I had with the man at the bus stop has caused me to think more deeply about the importance of how the crisis in the Gulf is handled, and how we as a nation will recover, must recover what it means to have a nation governed “for the people and by the people.”
 

Corporate-funded Calif. Ballot Measures Too Close To Call

Two California ballot measures funded by corporations are still too close to call after Tuesday’s elections. A utility company spent $46 million on a measure to make it harder for municipalities to set up their own utility companies; a car insurance company spent $16 million on a measure making it easier to hike fees on some drivers.

Jamie Court, president of Consumer Watch, said he was heartened that those propositions were so close despite tens of millions spent by companies that would benefit.

"I think it says the electorate isn't as stupid as the corporations think it is," Court said.

Yes, it’s encouraging that these measures might not pass, but the fact that they’re this close shows that millions of dollars in corporate spending is no joke. We’ll post an update when the results are in.

(And, speaking of a reasonable electorate, it looks like the Religious Right group seeking to elect judges who would push a "biblical worldview" on the bench isn’t doing so well).

UPDATE: Both corporate funded ballot measures have been rejected by narrow margins.

PFAW

A New Brand of Umpire

In a compelling new piece at Slate, Doug Kendall of the Constitutional Accountability Center and Jim Ryan of the University of Virginia argue that when Elena Kagan faces the Senate Judiciary Committee she shouldn’t ignore or reject strict Constitutionalism—she should wrest its definition back from the Right wing:

…Kagan should take the opportunity provided by this week-long constitutional seminar to chronicle the arc of our constitutional progress and make it clear that she will faithfully adhere to the whole Constitution, including the amendments passed over the last 220 years. The amendments passed since the founding era have been glossed over a lot lately, at the Tea Parties, in the states, and even at the Supreme Court, where the conservative "originalists" seem to view what was originally drafted by the framing generation as better, and more legitimate law, than the changes made since. This view is absurd and should be forcefully rejected by Kagan. Perhaps she could follow Chief Justice Robert's umpire analogy, in which he famously likened judges to umpires calling balls and strikes. No one would claim that modern umpires have the power to enforce the "original" rules of baseball, even if those rules have been changed. The same is true of justices enforcing the Constitution.

As Rand Paul and the RNC have recently learned the hard way, most Americans accept that our Constitution, like our society, has changed over the past 200 years. Kendall and Ryan are right that progressives shouldn’t downplay the written document—they should brandish it.
 

PFAW

Supreme Court Leaves Publicly Funded Arizona Candidates Up a Creek

The Supreme Court ruled today that Arizona candidates who have opted in to the state’s public financing system can’t collect matching funds—the money allotted to candidates who are up against particularly well-funded opponents or interest groups—until the Court has time to consider whether the matching funds are constitutional.

This leaves candidates who had agreed to public funding (and so hadn’t built up large stocks of cash) in a tough spot coming into August 24th’s primary. The moratorium on matching funds will last until the Supreme Court decides whether to hear the case—a decision that could come as late as the fall.

The AP outlines the impact:

Gubernatorial candidates running with public funding get a basic allotment of $707,000 for the primary and were also eligible for up to $1.4 million — two times the basic allotment — in matching funds. Publicly funded candidates for down-ballot offices get smaller amounts of basic funding and also are eligible for corresponding amounts of matching funds.

Nearly half of the state-office candidates who qualified to run in the primary were running with public funding.

The Supreme Court showed in Citizens United that it was willing to go out of its way to help big money influence elections. Today’s ruling is further evidence of that trend.
 

UPDATE: People For's president, Michael B. Keegan, has issued a statement on the Supreme Court's order, saying, "In this ruling, the Court has shown once again that it is open to letting big money gain big influence in our democracy." The full statement is here.

PFAW

Equal Protection Under Attack: Doe v. Vermilion Parish School Board

Last week, People for the American Way Foundation signed on to an amicus brief urging the Fifth Circuit Court of Appeals to overturn a lower court’s decision allowing a Louisiana middle school to segregate classrooms by sex. The amicus brief, led by the National Women’s Law Center, argued that sex-segregated classrooms are harmful to members of both sexes and violate the Fourteenth Amendment’s Equal Protection Clause.

Parents of the Rene A. Rost Middle School were informed in 2009 that classes for the school would be segregated by sex for the coming fall semester. A parent whose children were placed in sex-segregated classes without receiving constitutionally mandated coeducational options objected and was told that because the coed classes had already been filled, the only option left for one of her daughters was a special needs class. Represented by the ACLU, the parent sued and the trial court dismissed the case by wrongly shifting the burden of proof, requiring the victim to prove discrimination by demonstrating an “intent to harm” - a new standard that is almost impossible to meet and not recognized by the Supreme Court.

As the Supreme Court held in its 1996 decision requiring the Virginia Military Institute to admit women, for a state to permissibly classify on the basis of sex, it “must carry the burden of showing an exceedingly persuasive justification for the classification.” Additionally, the state must not “rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.” Simply put, the Court has found that a state must have a very good reason before it decides to discriminate on the basis of sex.

NWLC’s brief cites evidence that suggests a total lack of adequate justification for the school’s policy, both from a legal and practical perspective, specifically a flawed study performed by Rost Middle School’s principal. Simply put, if the Fifth Circuit were to uphold the District Court’s decision, it would ignore almost 30 years of settled Equal Protection law in order to endorse a discriminatory policy that is harmful to all students regardless of gender.
 

PFAW

New Statement, Old Points from Sessions

Jeff Sessions is at it again. In a statement following the release of tens of thousands of pages of documents related to Supreme Court nominee Elena Kagan on Friday, Sessions concluded:

Kagan’s memos unambiguously express a leftist philosophy and an approach to the law that seems more concerned with achieving a desired social result than fairly following the Constitution. Ms. Kagan has never been a judge, and only briefly practiced law—spending far more time as a liberal advocate than a legal practitioner.

Sessions, the top Republican on the Senate committee that will grill Kagan this summer, has apparently decided to stick to the blanket accusation of “judicial activism”—or, as it is now known, “outcomes-based” judging. The idea that conservative judges read the Constitution while liberal judges pull ideas out of thin air was spectacularly disproved by the Roberts Court’s ruling in Citizens United v. FEC, and recently received a thorough takedown from former Justice David Souter. Yet Sessions continues to peddle nonsense about progressive appointees caring more about a “social result” than the Constitution.

And, by the way, when Sessions accuses Kagan of lacking judicial experience, he walks right into a well-documented double standard.
 

PFAW

Reframing and Reclaiming the Conversation on the Courts

In a new piece for the Huffington Post, People For’s Michael B. Keegan argues that the confirmation process for Elena Kagan provides progressives with the perfect opportunity to take back a debate that the Right has dominated for far too long:

As Slate's Dahlia Lithwick has pointed out, the Republican message machine has managed to convince America at large that only two kinds of Justices exist: rigorous conservatives who scrupulously apply the original intent of the Constitution, and carefree liberals who flaunt the law to rule for whichever party their big, soft hearts prefer. It's a myth, but it didn't spring up from nowhere. It's the direct result of a concerted effort pushed by conservative ideologues like Ed Meese and supported by Ronald Reagan, George Bush, and eventually the entire GOP machine.

For decades, this campaign has paid enormous dividends to the Right, with ultra conservative judges frustrating progressive goals and allowing elected conservatives to trample our Constitution. But over the last few years, a series of decisions by the Roberts Court have exposed its flaws and given progressives an opening to take back the conversation.

Take a look at the full piece on HuffPo.

And also don’t miss the debunking of conservative myths about judging that Former Justice David Souter offered up in last week’s Harvard commencement address.

PFAW

Souter’s Case Against Originalism

In his commencement address at Harvard last week, former Supreme Court Justice David Souter offered up an eloquent and thorough debunking of the popular conservative delusion of constitutional “originalism.”

E.J. Dionne sums it up nicely:

At issue is "originalism," an approach to reading the Constitution whose seeming precision has given conservatives a polemical advantage over the liberals' "Living Constitution" idea that appears to let judges say our founding document means whatever they want it to mean.

Justice Antonin Scalia, the court's leading orginalist, summarized his opponents' attitude toward the Constitution with four words: "You know, it morphs."

Now, thanks to Souter's commencement address at Harvard last week, Scalia's critics have fighting words of their own. Souter, who did not mention Scalia by name, underscored "how egregiously it misses the point to think of judges in constitutional cases as just sitting there reading constitutional phrases fairly and looking at reported facts objectively to produce their judgments."

The problem is not only that "constitutions have a lot of general language in them in order to be useful as constitutions," but also that the U.S. Constitution "contains values that may very well exist in tension with each other, not in harmony."

This means that "hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another."

Souter focused on the example of Brown v. Board of Education, the 1954 decision that declared segregated schools unconstitutional. "For those whose exclusive norm of constitutional judging is merely fair reading of language applied to facts objectively viewed,” he said, “Brown must either be flat-out wrong or a very mystifying decision.”

The Supreme Court’s conservative wing has shown itself willing to depart from originalism when it serves their purposes. What’s surprising is that the originalist “balls and strikes” argument is still dominates discussions on the courts.
 

PFAW

Keeping the Courts Corporate

Corporate courts don’t happen by accident.

Carl Pope, chairman of the Sierra Club, has written an account of the efforts of the business lobby and Republican Senators to keep Rhode Island environmental lawyer John McConnell off the federal bench.

McConnell’s offense? Representing the State of Rhode Island in a lawsuit to get a lead paint manufacturer to clean up the damage caused by its toxic product. (A jury awarded the state $2.4 billion in cleanup costs; the Rhode Island Supreme Court threw out the verdict).

Whatever you think of the verdict, McConnell was a lawyer representing a client, the State of Rhode Island. He argued on behalf of his client, which is what lawyers are supposed to do. Litigators are not supposed to behave like judges (until and unless they actually become one).

That distinction was lost on Senators Kyl and Sessions. Sessions actually argued:

"Being passionate and zealous is a good quality for a litigator. But I do think those qualities are somewhat different in the cloistered halls of a courtroom, where you're reading briefs and trying to be objective. Those emotions might again start running, and you might say that 'There's a wrong there that I need to right.'"

The two Republican senators were echoing the arguments of the Chamber of Commerce, which had warned Congress against McConnell:

"His apparent bias against the business community and questionable judicial philosophy raise serious reservations about his fitness to serve a lifetime appointment to the federal bench," said Lisa Rickard, president of the U.S. Chamber's Institute for Legal Reform. "McConnell's elevation to the federal judiciary could create a 'magnet' jurisdiction that would encourage additional meritless, plaintiffs' lawyer-driven lawsuits."

The U.S. Chamber spends more on lobbying Congress than any other organization. It is not a coincidence that it has made itself a powerful—if not always logical— voice in the shaping of federal courts.
 

PFAW