Celebrating Elena Kagan's Confirmation

I'm just back from a reception at the White House celebrating the confirmation of Elena Kagan to be an Associate Justice of the Supreme Court. The mood was truly upbeat, with everyone thrilled at the reality of three women sitting on the Supreme Court. I got to congratulate soon-to-be Justice Kagan and tell her how truly excellent and inspiring I thought her testimony was.



The Party of No Lives Up to Its Name

Last night, in the latest episode of their passive-aggressive crusade to keep President Obama’s judicial nominees off the bench, the Senate GOP put on a mind-boggling display of obstruction.

As the Senate confirmed Elena Kagan’s Supreme Court nomination, 21 other judicial nominees were waiting for Senate votes. More than half of these nominees had been approved unanimously by the Judiciary Committee, and all had been waiting more than 100 days for confirmation.

After the Kagan vote, Senate GOP leader Mitch McConnell agreed to hold voice votes on four of the stalled nominees, and promised to agree to a vote on another—Jane Stranch, a Tennessee attorney who has been waiting more than a year for confirmation, despite having the support of both of her home state’s Republican senators-- in September.

The GOP sent five nominees back to the White House—meaning that the President will have to renominate them and start the process again.

That left eleven nominees in Senate limbo. Nine of them had received absolutely no opposition from either party in their Judiciary Committee hearings.

In an interview Monday, the National Journal asked McConnell about his party’s obstructionism. “Is the Senate broken?” the interviewer asked. McConnell answered:

No. Members frequently on both sides hold up a nominee because of some concern they have. It is more likely to be done if you are in the minority because the administration is not of your party and less likely to address your concern. This kind of give-and-take I have seen go on before. It is not any more dramatic now than it has been in the past, and this president has not been treated worse than the last one was. But it is always maddening to the majority and maddening to every president.

I must say the president even made it worse by recessing a guy like [Craig] Becker [to the National Labor Relations Board], who was defeated in the Senate. We had a vote. He was defeated on a bipartisan basis. And recessing a guy like [Donald] Berwick [to oversee Medicare and Medicaid] without any hearings at all and with the chairman of the Finance Committee [Max Baucus, D-Mont.] saying he didn't think he should have been recessed. That is not the kind of action that is designed to, shall I say, engender a cooperative reaction on the part of the minority. I think we can statistically show you that it is not worse for President Obama. He hasn't been singled out more for shoddy treatment than it has been in the past.

It’s unclear what “concern” McConnell is referring to in the case of the nine blocked nominees who have received absolutely no Republican opposition. The concern seems to have nothing to do with the nominees at all—but rather with unrelated executive branch nominations that the GOP is seeking revenge for.

And as for McConnell’s claim that “we can statistically show you that it is not worse for President Obama,” the Center for American Progress has a chart for that:


Conservatives Against Religious Tolerance

Recently the right wing, including Sarah Palin and other prominent Republicans, has been loudly protesting the proposed construction of an Islamic center and mosque in the vicinity of Ground Zero. The center is intended to help build an interfaith community in downtown Manhattan. But to hear the National Republican Trust tell it, radical Islamic terrorist-supporters are planning to build a mosque next to the world trade center site in order to celebrate the 9/11 attacks. In one ad, the NRT Pac pairs disturbing images of 9/11 with this message:

"On Sept. 11, they declared war against us. And to celebrate that murder of 3,000 Americans, they want to build a monstrous 13-story mosque at Ground Zero. This ground is sacred. When we weep, they rejoice. That mosque is a monument to their victory and an invitation for more. A mosque at Ground Zero must not stand."

It’s hard to count everything that is wrong with this statement: there is no link between the organizers and extremist Muslim groups; the project is a community center, not just a mosque, complete with a swimming pool and art exhibition space; the building isn’t even visible from Ground Zero; and the list goes on. As New York Mayor Michael Bloomberg made clear in an eloquent speech, conservatives’ misleading rhetoric does a disservice to the American spirit of religious tolerance that was attacked on September 11.

In a statement, PFAW President Michael Keegan said:

Of course a Muslim community center should be allowed in lower Manhattan. This is not a close question.

Our country is built upon the bedrock principle that people of all faiths and of no faith at all are equally welcome in our nation’s civic life. No community should be told to move away because of its religion. Arguing that Muslims are unwelcome anywhere is a threat to religious liberty everywhere. Religious intolerance is not the American way.

Those political leaders who have spoken out against religious intolerance should be applauded—they have taken a stand for our most essential values. It’s deeply disappointing that so many of their colleagues chose instead to use this incident to inflame religious strife.

I just can’t get over the hypocrisy of Sarah Palin tweeting “Peace-seeking Muslims, pls understand. Ground Zero mosque is UNNECESSARY provocation; it stabs hearts,” while her Republican colleagues in the House of Representatives blocked a health care bill for New Yorkers and first responders sickened from inhaling toxins from the 9/11 attacks.

That’s right, Americans, the GOP will NOT be there to help if you are made permanently ill in the aftermath of a terrorist attack – but don’t worry, they’ll fight to protect the site of the attack from “peace-seeking Muslims.”


Back to the Future?

Why, asked Senator Chuck Schumer of New York before Elena Kagan's confirmation today, were so many conservatives opposed to the nominee, despite her record of achievement and mainstream credentials? Because conservatives are attached to right-wing judicial activism, and see Kagan as a threat to the current hegemony of conservative ideology on the highest court. Said Schumer:

The supposedly staunch opposition to judicial activism on the right has shown its true colors in this debate over a truly moderate and mainstream candidate. They themselves want right wing judicial activism to pull this country into the past. I’ve always said that the far right is using the only unelected branch of government to do what it cannot do through the two elected branches: turn back history to a time when corporations and large special interests had more say in our courts than ordinary people.

As Senator Schumer reminds us, our society has made tremendous progress over the last century – but that’s not the way the right sees it. A case in point for Senator Schumer’s argument was the memorable exchange between Senators Coburn and Klobuchar during Kagan’s hearing, in which Sen. Coburn suggested that Americans were “freer” thirty years ago and Sen. Klobuchar reminded him of the astonishing progress women have made during that time.


Fiorina’s Supreme Court Extremism in Disguise

Is this the best impression of a political moderate that Carly Fiorina can do?

The California senatorial candidate announced yesterday that if she were currently a member of the Senate she would not vote to confirm Elena Kagan to the Supreme Court. Her reasoning?

The confirmation process revealed that she has many admirable qualities – an ability to solve problems, an energetic mind and an enthusiasm for her colleagues and her work – all of which qualify her to serve as Solicitor General, the Dean of a Law School or even as a legislator. However, the process also underscored her lack of experience as a jurist, which in my mind is a key element in determining whether or not a nominee is qualified to serve as a member of the Supreme Court.

Yes, Fiorina claims that her one and only qualm with Kagan is that the Solicitor General has never been a judge before.

I don’t think we need to remind Fiorina that the lack of judicial experience is hardly unusual for Supreme Court nominees. 41 of the 109 Supreme Court justices in American history came to the high court with no previous judicial experience--including former chief justice and stalwart conservative William Rehnquist.

In fact, since Kagan’s nomination, current and former Supreme Court justices have come out saying you don’t need judicial experience to do the job well. Former justice Sandra Day O’Connor said that Kagan’s professional background was “just fine.” Antonin Scalia, one of the most conservative justices in the past 50 years, was actually enthusiastic about Kagan’s background: “I am happy to see that this latest nominee is not a federal judge - and not a judge at all,” he said.

Which leads to the obvious question: Does Fiorina really think that judicial experience is the only qualification for a Supreme Court justice? If that’s the case, she would she have had to oppose the nominations of some of the most influential justices in Supreme Court history, including Rehnquist, John Marshall, Louis Brandeis, Earl Warren, William O. Douglas, Harlan Fiske Stone, Robert Jackson, Felix Frankfurter, and Joseph Story, among others.

Or is the “inexperienced” argument just a flimsy front for Fiorina’s real right-wing views on judicial appointments?

Fiorina clearly cannot oppose Kagan, a decidedly mainstream nominee with bipartisan support, on ideological grounds without blowing her newly-constructed cover as a political moderate. Instead, she has latched onto a flimsy excuse to oppose Kagan in order to pander to her ultra-conservative base--without setting off the alarms of moderate and progressive voters.

This statement isn’t about Elena Kagan’s resume. It’s about Carly Fiorina’s attempt to appease Sarah Palin conservatives while pretending to be a middle-of-the-road politician. And that should be very scary to moderate California voters.


Senate Sends Kagan to the Supreme Court

The Senate just confirmed Elena Kagan to be an Associate Justice of the Supreme Court. The vote was 63-37, with five Republicans voting to confirm her, and one Democrat (Ben Nelson of Nebraska) opposing her.

People For’s President, Michael Keegan, said:

“Americans should be proud that Elena Kagan was confirmed to the Supreme Court today. She brings to the bench sterling credentials and a formidable intellect. Her commitment to the Constitution and equal justice under law will serve the Court well in the decades ahead.

“During her hearings, Elena Kagan spoke powerfully about the Constitution as a timeless document, constructed by its framers to be interpreted over time in light of new situations and in new contexts. She articulated 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. Solicitor General Kagan made clear that she has the intellectual fortitude and the command of the law to keep faith with our Constitution--its amendments, its history, and its core values like justice and equality under the law.

“Thanks to today’s vote, the Supreme Court will have three female Justices for the first time in our nation’s history. This is an historic step forward for all Americans, and an advancement of which every citizen should be proud.”


Empathy vs. Sympathy

As the Senate debate continues on Elena Kagan’s confirmation, Republicans have used this opportunity to blast Obama for previously stating that judges should have the empathy to understand the lives of ordinary Americans. Republicans argue that possessing “empathy” is synonymous with “liberal judicial activism,” and have attempted to use this standard to oppose Kagan’s nomination.

Yesterday, Sen. Kaufman of Delaware reminded his colleagues of the actual meaning of “empathy”: 

Likewise, President Obama’s promotion of empathy is not, as his critics suggest, the advocacy of bias. “Empathy,” as a quick look at the dictionary will confirm, is not the same as “sympathy.” “Empathy” means understanding the experiences of another, not identification with or bias toward another. Let me repeat that. “Empathy” means understanding the experiences of another, not identification with or bias toward another. Words have meanings, and we should not make arguments that depend on misconstruing those meanings.

Republicans launched their assault on empathy last year during Sonia Sotomayor’s confirmation hearings. What was lost in the hubbub is what the word actually means. Sympathy leads to the kind of bleeding-heart reactionary reasoning that Republicans claim to be afraid of in nominees like Sotomayor and Kagan. Empathy is the quality that enables judges to understand the reasons laws are made, and the real-life implications they have on the lives of Americans. Republicans have access to the same dictionaries as the rest of us—but if they stopped twisting Obama’s words, they would lose one of their favorite empty arguments.


Proposition 8: Just the Facts

Yesterday afternoon, federal Judge Vaughn Walker ruled that Proposition 8 violated the United States Constitution. This is an important milestone.

One reason it is so important is the factual record that was compiled for the case. Judge Walker developed an extremely detailed factual record upon which to base his legal conclusions - a record of the significant harm that marriage inequality causes, of the history of discrimination faced by lesbian and gay people, and of the animus behind Prop 8. In fact, more than 50 pages of the opinion are devoted to his findings of fact.

For instance, there's Fact 55: "Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages."

Or Fact 56: "The children of same-sex couples benefit when their parents can marry."

Or Fact 66: "Proposition 8 increases costs and decreases wealth for same-sex couples because of increased tax burdens, decreased availability of health insurance and higher transactions costs to secure rights and obligations typically associated with marriage. Domestic partnership reduces but does not eliminate these costs."

Or Fact 74: "Gays and lesbians have been victims of a long history of discrimination."

Or Fact 76: "Well-known stereotypes about gay men and lesbians include a belief that gays and lesbians are affluent, self-absorbed and incapable of forming long-term intimate relationships. Other stereotypes imagine gay men and lesbians as disease vectors or as child molesters who recruit young children into homosexuality. No evidence supports these stereotypes."

This factual record is very important, because when Prop 8 supporters appeal the decision, the appellate court will have to accept these facts. Appellate federal courts are generally limited to deciding issues of law, not of fact. Well-supported facts like these will make it much harder for an appellate court to reverse the decision.

More broadly, this case shows us that when the forces of the Right face an independent judge, the arguments that serve them so well on Fox News wither before genuine scrutiny. It also shows the beauty of the American constitutional system, where our independent judiciary protects Equal Justice Under the Law.


A Win for Fact Over Prejudice

California federal judge Vaughn Walker’s opinion yesterday in the case of Perry v. Schwarzenegger—in which he struck down the state’s ban on gay marriage—was a strong defense of the values embodied in the Constitution. But it was also something more. In his 136-page opinion, Judge Walker carefully dismantled dozens of the myths that opponents of marriage equality have attempted to use as legitimate legal arguments against allowing gay people to marry. And unlike the defenders of marriage discrimination, Walker didn’t make up evidence out of whole cloth—in his analysis, he relies on expert testimony, statistics, and the lessons of history. Slate’s Dahlia Lithwick writes:

It's hard to read Judge Walker's opinion without sensing that what really won out today was science, methodology, and hard work. Had the proponents of Prop 8 made even a minimal effort to put on a case, to track down real experts, to do more than try to assert their way to legal victory, this would have been a closer case. But faced with one team that mounted a serious effort and another team that did little more than fire up their big, gay boogeyman screensaver for two straight weeks, it wasn't much of a fight. Judge Walker scolds them at the outset for promising in their trial brief to prove that same-sex marriage would "effect some twenty-three harmful consequences" and then putting on almost no case.

The stunning thing is that the feeble arguments that Prop 8 defenders were able to muster against marriage equality were in fact the best they could come up with. Kyle at Right Wing Watch writes that there was some in-fighting among the Right Wing over who would get to defend Proposition 8 in court. The fervently anti-gay Liberty Council tried to wrest the defense away from the equally anti-gay but slightly more street-smart Alliance Defense Fund, because the ADF wanted to base its case partially on factual evidence rather than purely on vitriol. The ADF won out, but they were left with a small problem: there was no factual evidence to be found.


Federal Judge Rules Gay Marriage Ban Unconstitutional

A federal judge in California today ruled Proposition 8, the state’s ban on gay marriage, unconstitutional. Judge Vaughn Walker’s opinion declares the marriage ban a violation of the Constitution’s equal protection and due process clauses, and debunks the arguments of marriage equality opponents on issues ranging from the welfare of children raised by gay and lesbian parents (they do just fine) to the effect of same-sex marriage on other marriages (none).

To be honest, we’re still wading through the opinion, and will have more analysis of the legal arguments tomorrow. But for now, let’s appreciate the real effect this decision will have on people like Jeff Zarillo and Paul Katami, two of the plaintiffs in the case, who now have a chance at regaining the right to marry. Here are the video that the American Foundation for Equal Rights put together about Jeff and Paul:

Paul and Jeff from American Foundation for Equal Ri on Vimeo.


McCain Recites the Harvard Argument

Sen. John McCain just used his time on the Senate floor to speak extensively about Elena Kagan’s actions involving military recruitment when she was dean of Harvard. A dean who reveres the military, McCain said, would not put up with potential recruits “wandering the halls of Harvard Law School hoping that someone will stop and talk to them.”

As Sen. McCain well knows, Dean Kagan did not leave aspiring members of the military to “wander the halls of Harvard Law School.” Instead, she made every effort to help the student veterans’ association recruit students—an effort so successful that military recruitment went up while Kagan was dean.

McCain also quoted from the testimony of the right-wing activists the GOP brought in to bash Kagan’s record on military recruitment--while conveniently ignoring the far more reliable testimony of several members of the military who were actually at Harvard while Kagan was dean, who assured Senators that they received ample opportunities and respect from their school.

I recommend reading People For president Michael Keegan’s piece in the Huffington Post on what the GOP’s fixation on these empty military recruitment charges is really about.


GOP Obstructionists turn on 9/11 Victims

This video of Representative Anthony Weiner (D-NY) losing his temper on the House floor has been making the rounds in the blogosphere recently. What I find most compelling about the story, though, isn’t that Weiner raised his voice; it’s that he raised it against perhaps the most troubling example of GOP obstructionism yet.

Last week, the House tried to pass a bill to provide health care for the first responders who risked their lives to save their fellow Americans during the 9/11 World Trade Center attacks. Many of these heroes face lingering health problems in the aftermath of their exposure to toxic ash and other debris.

But, instead of actually voting on the bill, House Republicans blocked it, citing both procedural and ideological issues. Here’s how Representative Weiner describes the debate:

It was frustrating to hear Republicans say these people didn’t deserve more help because, as one put it, “people get killed all the time.” Others called it another big entitlement program. Some said it was a giveaway to New York, or complained that the bill would have been paid for by closing a tax loophole. We responded to each of these arguments over the summer in the hours of hearings and markups of the bill.

There were also Republican objections that we put the bill on the “suspension calendar,” which is generally used for noncontroversial legislation, as this measure should have been. This move meant that the bill required a two-thirds favorable vote for approval rather than a simple majority, but it also kept the bill from getting bogged down in debate and stuck with poison-pill amendments.

...Instead of engaging in a real debate about how to address the challenges we face, Republicans have turned to obstruction, no matter the issue, and then cry foul after the fact. They claim to want an open legislative process with more consultation and debate, but the truth is they simply don’t want to pass anything.


Senate Republicans: Just Say No to Participating in the Legislative Process

A well-researched, provocative piece in The New Yorker this week explores the increasingly dysfunctional nature of the US Senate. In particular, the article draws attention to the unprecedented obstructionism of the current Republican minority:

Under [Minority Leader Mitch] McConnell, Republicans have consistently consumed as much of the Senate’s calendar as possible with legislative maneuvering. The strategy is not to extend deliberation of the Senate’s agenda but to prevent it. Tom Harkin [D-IA], who first proposed reform of the filibuster in 1995, called his Republican colleagues “nihilists,” who want to create chaos because it serves their ideology. “If there’s chaos, things will tend toward simple solutions,” Harkin said. “In chaos people don’t listen to reason.” McConnell did not respond to requests for an interview, but he has often argued that the Republican strategy reflects the views of a majority of Americans. In March, he told the Times, “To the extent that they”—the Democrats—“want to do things that we think are in the political center and would be helpful to the country, we’ll be helpful. To the extent they are trying to turn us into a Western European country, we are not going to be helpful.”

…The deepest source of [the Senate’s] problems is not rules and precedents but, rather, its human beings, who have created a culture where Tocqueville’s “lofty thoughts” and “generous impulses” have no place.

If Republican Senators were true statesmen, they would know that it is always “helpful” for the minority party to make an honest attempt to work through their differences with their opponents. Instead, Republicans have adopted a “just say no” legislative philosophy, making it impossible for the Senate to be the dignified and idea-oriented institution envisioned by the Founders.


Hatch: Defense of Thurgood Marshall is “Offensive”

Watching the Senate debate on Elena Kagan’s nomination yesterday afternoon, I wasn’t sure I heard correctly when Sen. Orrin Hatch called the backlash against the GOP’s anti-Thurgood Marshall campaign “offensive.” I heard correctly. Here’s the transcript:

While Ms. Kagan has not herself been a judge, she has singled out for particular praise judges who share this activist judicial philosophy. In a tribute she wrote for her mentor, Justice Thurgood Marshall, for example, she described his belief that the Supreme Court today has a mission to “safeguard the interests of people who had no other champion.” Ms. Kagan did more than simply describe Justice Marshall’s judicial philosophy but wrote: “And however much some recent Justices have sniped at that vision, it remains a thing of glory.”

Justice Marshall was a pioneering leader in the civil rights movement. He blazed trails, he empowered generations, he led crusades. But he was also an activist Supreme Court Justice. He proudly took the activist side in the judicial philosophy debate. Some on the other side have suggested that honestly identifying Justice Marshall’s judicial philosophy for what it is somehow disparages Justice Marshall himself. I assume that this ridiculous and offensive notion is their way of changing the subject because they cannot defend an activist, politicized role for judges.

Among the members of the GOP who continue to cling to this line of attack, variations of the “I’m not disparaging Justice Marshall, I just don’t like his judicial philosophy” argument are a mainstay. The problem is, Justice Marshall’s work as a Supreme Court Justice—or his “judicial philosophy”—is a key part of his legacy. He’s a hero for his years of work rooting out segregation as a lawyer for the NAACP; he’s also a hero for his adherence, as a Supreme Court justice, to the Constitution’s promise of “protecting individual freedoms and human rights.”

When Hatch attacks Marshall’s work as a justice, he attacks his entire legacy. I won’t call that “offensive”—but I can’t say it’s wise, either.


The Far-Right Agenda Rolls On In the Courts

Yesterday, U.S. District Judge Henry E. Hudson refused to dismiss a lawsuit, filed by Virginia Attorney General Ken Cuccinelli, challenging the constitutionality of the recently passed healthcare reform bill. This procedural ruling will likely lead to years of litigation surrounding the law, which many constitutional law experts believe is well in line with the parameters of the Commerce Clause and Congressional authority.

But much as we have seen, this is just another example of right-wing judges pursuing an ideological agenda to harm progressive goals. Though Judge Hudson’s ruling (see career background here) did not explicitly discuss the merits of the case, it’s pretty clear which side he would rule on, according to Steven Schwinn at the Constitutional Law Prof Blog:

[H]e clearly framed the issues in terms of Virginia's theory of the case--that the mandate is a regulation of a decision not to participate in the interstate economy--and commented throughout on the "complex constitutional issues”. . . The federal government will likely have a tough time getting Judge Hudson to move away from Virginia's view of the case.

This is yet another reason why conservatives are so intently set on packing the courts with right-wing extremists. Time will tell if their strategy works with regards to ideological courts bending the law in order to strike down healthcare reform.