PEOPLE FOR BLOG

Oil and the Courts: Will History Repeat Itself?

As BP begins a risky attempt to stem its still-leaking oil rig in the Gulf of Mexico, and oil starts to lap against the shores of the Gulf Coast, lawsuits against the oil giant have begun. The devastating oil spill has already surpassed the size of the 1989 Exxon Valdez disaster, and the litigation that follows it is sure to be just as contentious and lengthy. Two years ago, 19 years after the Valdez spill, the tens of thousands of victims of the disaster saw their case end up before the Supreme Court…and the Court gave Exxon Mobil a huge handout. While the facts this time are different and the legal issues won’t be exactly the same, if their case ends up before the high court, victims of the BP spill will have a legitimate reason to worry –the Roberts Court has displayed a clear willingness to go out of its way to keep individual citizens from holding big oil accountable.

In 1989, an Exxon oil tanker carrying over a million barrels of crude oil crashed off the coast of Alaska, spilling at least ten million gallons of oil into the Prince William Sound. The spill destroyed wildlife habitats and the livelihoods of fishermen up and down the Northwest coast. Those affected by the spill entered into years of litigation to try to recover from Exxon some of what they had lost. In 1994, a jury awarded the 32,677 plaintiffs in the case $5 billion in punitive damages. An appeals court judge halved the amount to $2.5 billion.

Then, in 2008, the Supreme Court gave Exxon Mobil a $2 billion gift. As our Rise of the Corporate Court report explains:

[E]ven this pared-down judgment was way too much for Justices Roberts, Kennedy, Thomas, Souter and Scalia. In 2008, this bloc reduced the punitive damage award from $2.5 billion to $507.5 million. Indeed, the only thing that stopped them from deleting the award altogether was that they were one vote short of being able to find that a corporation is not responsible for the reckless acts of its own managers acting in the scope of their employment.

What the 5-justice majority found, over the objections of dissenting liberal justices who accused them of legislating from the bench, was that it would impose in maritime tort cases a 1-1 ratio between compensatory and punitive damages—a formula found nowhere in the statute and essentially pulled out of a hat made by a big corporation. In dissent, Justice Stevens chastised the majority for interpreting the "congressional choice not to limit the availability of punitive damages under maritime law" as "an invitation to make policy judgments on the basis of evidence in the public domain that Congress is better able to evaluate than is this Court."

But Exxon, which amazingly ended up making money on the spill because of the resulting increase in oil prices, got its way with a corporate-leaning Court and ended up paying punitive damages equal to a day or two of company profits.

The Exxon Valdez spill was the largest oil spill ever in U.S. waters. Until now, that is.

As oil keeps leaking from a BP oil rig into the Gulf of Mexico, the Gulf Coast has started to feel the impact of what the White House yesterday declared to be the worst oil spill in U.S. history.

President Obama called the spill a "potentially unprecedented environmental disaster." 11 people died in the rig’s explosion, and the resulting spill has already begun to destroy Gulf Coast ecosystems and has started a devastating ripple effect through the economy.

An early estimate put the economic impact of the spill at $12.5 billion. And the damage could continue for decades.

Not surprisingly, the lawsuits from those who are losing their livelihoods have begun. As of May 21, more than 130 had been filed.

Lawsuits against BP will no doubt involve millions, and probably billions of dollars in both compensatory and punitive damages. While compensatory damages are essential to helping victims recover from a disaster of this size, punitive damages serve to dissuade the company and others like it from acting recklessly in the future. The Roberts Court’s willingness to invent a rule capping punitive damages against Exxon doesn’t bode well for anyone hoping to hold BP accountable for this disaster and to make sure it doesn’t happen again.

The Court has a responsibility to ensure that ordinary people get treated fairly, even when pitted against big corporations—but the current Supreme Court has made it clear that we can’t always count on that.

This disaster is a tragic reminder of why we need Justices who won’t favor the interests of the powerful over the rights of ordinary citizens.

 UPDATE (May 28, 2:30 PM):

For a sense of the scale of the disaster, take a look at NASA's stunning time-lapse video of the spill unfolding (via Mother Jones):

PFAW

People For the American Way and African American Ministers in Action wrote to Congress today urging repeal of Don’t Ask, Don’t Tell. Votes are imminent in both the House and Senate.

According to PFAW’s Michael B. Keegan and Marge Baker:

Don’t Ask, Don’t Tell runs counter to the honesty and integrity we associate with the armed forces, not to mention the values of equality and freedom of expression espoused by our Constitution. Repeal is necessary to restore these values. Until then, LGBT soldiers will have to lie and hide their true identity on a daily basis. Those who live openly and share information about their spouses, significant others, or dating life risk investigation and involuntary expulsion. Any statement that one is gay – to anyone, at any time, before or after enlistment – can be reason for discharge. Your life is a constant liability to your career when you are gay in the military.

AAMIA’s Reverend Timothy McDonald, III and Reverend Dr. Robert P. Shine further explored the ideas of equality and open service.

The faith community will continue in faithful dialogue to address the questions of LGBT equality and recognition of same-sex relationships. However, one thing people of faith should and do recognize is the need to protect constitutional and civil rights of all Americans, especially those who are discriminated against because of who they are. LGBT individuals are ready and willing to step up, and have stood up to the challenge of military service. They share in the sacrifices made by their family, friends, and neighbors. They deserve to serve honestly and openly with dignity.

Please write or call your Representative now and tell him or her that you support repeal of Don’t Ask, Don’t Tell. Share the same message with your Senators if they are on the Armed Services Committee.

PFAW

Police Chiefs Come Out Against Arizona Anti-Immigrant Law

Police chiefs from several major US cities said today that Arizona’s harsh new anti-immigrant law will make it harder for law enforcement officers to do their jobs:

The new Arizona law will intimidate crime victims and witnesses who are illegal immigrants and divert police from investigating more serious crimes, chiefs from Los Angeles, Houston and Philadelphia said. They will join their counterparts from Montgomery County and a half-dozen other U.S. cities in meeting Attorney General Eric H. Holder Jr. on Wednesday morning to discuss the measure.

"This is not a law that increases public safety. This is a bill that makes it much harder for us to do our jobs," Los Angeles Police Chief Charlie Beck said. "Crime will go up if this becomes law in Arizona or in any other state."

This isn’t a surprise. Phoenix’s police chief has already come out against the new law, saying it “adds new problems for local law enforcement.” But the fact that more police chiefs are speaking out against Arizona’s law reflects the serious threat that as many as 15 states may pass laws similar to Arizona’s. It’s scary that the right-wing rhetoric surrounding immigration reform has begun to drown out the voices of the people in charge of keeping our cities safe…and it’s further proof that the Right Wing is more interested in creating a clamor than actually fixing the problem.

If you haven’t read it yet, check out People For’s report on the Right Wing’s Immigration Playbook.
 

PFAW

Congress, take note:

A CNN/Opinion Research Corporation survey released Tuesday indicates that 78 percent of the public supports allowing openly gay people to serve in the military, with one in five opposed.

"Support is widespread, even among Republicans. Nearly six in ten Republicans favor allowing openly gay individuals to serve in the military," says CNN Polling Director Keating Holland. "There is a gender gap, with 85 percent of women and 71 percent of men favoring the change, but support remains high among both groups."

And congressional leaders aren’t sure if they can get the votes to repeal the discriminatory Don’t Ask, Don’t Tell policy. It’s another stark example of Washington politicians lagging far behind their constituents when it comes to gay rights.
 

PFAW

At long last, it looks like the discriminatory Don't Ask, Don't Tell policy may finally be on a path to repeal:

President Obama has endorsed a "don't ask, don't tell" compromise between lawmakers and the Defense Department, the White House announced Monday, an agreement that may sidestep a key obstacle to repealing the military's policy banning gay men and lesbians from serving openly in the armed forces.

The compromise was finalized in meetings Monday at the White House and on Capitol Hill. Lawmakers will now, within days, vote on amendments that would repeal the Clinton-era policy, with a provision ensuring that any change would not take effect until after the Pentagon completes a study about its impact on troops. That study is due to Congress by Dec. 1.

Congressional votes on the repeal are expected to be close. Let’s hope our elected officials have the courage to do the right thing and end a policy that has prevented thousands of patriotic Americans from serving their country honestly and openly.
 

PFAW

Supreme Court Changes Course to Rule for Workers Over Technicalities

Good news from the Supreme Court this morning: after taking a beating for its 2007 decision denying Lilly Ledbetter the right to sue her former employer for years of wage discrimination based on a deadline she could not have observed, and for a series of stunning pro-corporate rulings, the Court today handed down two decisions restoring justice to workers who had been denied relief based on technicalities.

In Lewis v. City of Chicago, the Court ruled that 6,000 African American applicants for firefighting jobs in Chicago could sue the city for discrimination, even though the city argued they had filed their complaints too long after the discrimination had taken place (whether or not the discrimination happened was not in question):

In a 9-0 decision, the justices said the city was liable for paying damages to those applicants who had "qualified" scores on the test but were excluded in favor of those who scored higher. Earlier this year, a lawyer for black applicants estimated the total damages in the case could reach $100 million.

The question was whether the city’s discrimination had taken place when it had compiled a discriminatory hiring list (in which case the plaintiffs had missed the filing deadline), or each time it made a hiring decision based on that list (in which case they had sued the city in time). The court ruled the latter.

And in Hardt v. Reliance Standard Life Insurance Co., the Court ruled unanimously that an employee who had prevailed in her suit for benefits under the Employee Retirement Income Security Act (ERISA) could gather attorneys’ fees, even though she had not prevailed through a judicial decision. (Her employer had backed down and agreed to pay her compensation before the case was decided by a court).

About 10,000 ERISA lawsuits are filed each year.

President Obama’s nominee for the Supreme Court, Solicitor General Elena Kagan, filed amicus briefs on behalf of the plaintiffs in both cases.
 

PFAW

Corporations Spending Millions on California Ballot Initiatives

From California, an example of what an unregulated corporate bank account can buy at the ballot box. NPR reports that big corporations have been spending millions of dollars to finance ballot initiatives in California, on issues including suspending the state’s clean air law (oil companies), revising auto insurance rules (insurers), and making it more difficult for municipalities to compete with private utility companies (you guessed it….):

Take Proposition 16, for example. The initiative, which proponents call the "Taxpayer's Right to Vote Act," would require a city or county that wants to start a municipal utility or expand an existing one to get approval from two-thirds of its voters. The backer of all this extra democracy is Pacific Gas and Electric, California's largest private, for-profit electric company.

"Prop 16 puts the power back in the hands of the people," says Robin Swanson, spokeswoman for the "Yes on 16" campaign. Pacific Gas and Electric, she says, isn't afraid of competition from publicly owned power providers.

"If our opponents can provide cheaper, greener, better electric service, then they shouldn't be afraid to go to the people and sell it to them," she says.

Except those municipal power providers are forbidden by law from spending a dime on electioneering. PG&E, on the other hand, has already put about $44 million into the campaign for Proposition 16.


 

PFAW

Appeals Court Rules Against Bagram Detainees

Today, the DC Circuit Court of Appeals ruled against three detainees held by the U.S. on a military base in Bagram, Afghanistan, holding that the federal courts do not have jurisdiction to review their habeas petitions. People For the American Way Foundation filed an amicus brief in support of the detainees’ position that the federal courts do have such jurisdiction.

 In apparent concern about opening the door to habeas cases from detainees held on U.S. military bases all over the world, the three-judge panel distinguished the United States’ control and sovereignty over the Bagram military base from the de facto sovereignty over Guantanamo Bay - a determinative factor in the Supreme Court’s decision in Rasul v. Bush (2004) which held that Guantanamo detainees could seek habeas relief in U.S. courts. The panel pointed out that the U.S. has exercised its leasehold interest in Guantanamo Bay for over 100 years, while its leasehold interest in Bagram is only a few years old.

More interestingly, the court also accepted the government’s “practical obstacles” arguments on appeal that allowing these cases to proceed in our federal courts would overly burden a military that is engaged in active hostilities in Afghanistan. PFAW Foundation wrote about this very issue, urging the court to take notice of the orderly and unobtrusive manner in which the Guantanamo habeas cases have been disposed since the Supreme Court’s decision in Boumediene in 2008. Those cases are particularly instructive given that 30 of the 38 detainees whose cases were brought before the D.C. district courts by the time of filing were found to have insufficient evidence to support their detentions, belying the notion that those detained as enemy combatants are the worst of the worst. In fact, many are not and worse still, some may even be innocent.

PFAW

Bork by Any Other Name

In the two days since Republican Senate nominee Rand Paul restated his long-held opposition to the portions of 1964’s Civil Rights Act that prohibited racial discrimination by private businesses, members of his party have been keeping their distance and tripping over themselves in the rush to declare their allegiance to the landmark civil rights law.

But, as the Washington Post’s Ruth Marcus points out, there was a time not long ago when Republican Senators were faced with someone with views very similar to Paul’s–and, instead of distancing themselves from him, tried to put him on the Supreme Court.

Rand Paul and Robert Bork, Marcus writes, “are ideological soul mates.”
For those whose perspective on the rejected Bork nomination is that it was such a skewed pummeling that it led to the creation of a new verb -- Borking -- here’s a reminder. Writing in The New Republic in 1963 about the proposed civil rights act, Bork inveighed against a principle of "unsurpassed ugliness” -- not of racism, mind you, but of the notion of compelling private property owners to stop discriminating. Sound familiar? The next year, Bork lit into the proposed bans on discrimination in both employment and public accommodations, saying they would “compel association where it is not desired,” and citing “serious constitutional problems” with the measure.


Bork renounced those views publicly in 1973, during his nomination for solicitor general. Paul’s about-face took less than 24 hours.


It might seem unfair to bring up a 23-year-old nomination battle in the debate over today’s policies, but some in the Republican Party have done just that, using Bork’s Senate defeat as a recurring Supreme Court talking point.

Just last week, for instance, Senate Minority Leader Mitch McConnell (who voted to confirm Bork in 1987) used the Bork-as-martyr defense to excuse all GOP attacks on Elena Kagan.

This week, McConnell weighed in on the Paul brouhaha, issuing a statement extolling the “landmark achievement” of the Civil Rights Act.

If Republicans want to keep on bringing up the Bork nomination, they should spend some time remembering why Bork met with such an unfriendly reception.

For a reminder, check out People For’s 1987 TV Ad on Bork, narrated by Gregory Peck:


 

PFAW

Advice for Obama from FDR

Jeff Shesol, author of the fascinating Supreme Power: Franklin Roosevelt vs. The Supreme Court, has some advice for President Obama in a new blog post for the American Constitution Society. Shesol argues that Obama can learn a thing or two from Roosevelt’s struggles with an “activist” Supreme Court that was overturning key legislative initiatives to protect individual rights and his success in shifting the frame of the public’s debate on the Court and the Constitution.

It's a paradox: we've got a former constitutional law professor as president, but he's had far less to say than his critics (and some of his supporters) about the relevance of the Constitution to key questions of national policy. No doubt he's got plenty to say on the subject. No doubt he's unwilling to cede the argument to Republicans mouthing pieties about "the plain language of the Constitution." So what's holding the professor back?

Understandably, his focus now is the confirmation of Elena Kagan, and that goal might not be served by starting a debate with the self-styled defenders of the Constitution. But as Senator Cornyn said last year, not incorrectly, "each Supreme Court nomination is a time for national conversation and reflection on the role of the Supreme Court." And by keeping mostly mum on the matter, President Obama is missing an important opportunity to "take the country to school," as Felix Frankfurter advised President Roosevelt to do in the mid-1930s. Frankfurter urged FDR to launch a campaign of "quiet education" about the Court's proper role and the ways in which ideologically driven conservative justices were overstepping it.

As Shesol points out, for decades conservatives have dominated the debate over the meaning of the Supreme Court and the Constitution. But in recent months, their talking points have been noticeably loosing credibility. The Roberts Court’s far-reaching decision in Citizens United—in which it went out of its way to upend 100 years of settled law to give corporations the same rights as citizens to influence elections— angered Americans across the political spectrum, and soundly debunked the myth of “judicial activism” as a liberal trait. And the Republican National Committee’s recent attempt to smear Elena Kagan for questioning the perfection of the original Constitution spectacularly backfired when the flaws in their argument became clear.

Americans are clearly ready to embrace a view of the Supreme Court and the Constitution that does not fit neatly into flawed baseball-themed talking points. The debate over Kagan’s nomination provides an opportunity to have that conversation.
 

PFAW

The Politics Behind the Public Safety Exception

In a new piece for The American Prospect, Adam Serwer investigates the political roots of Attorney General Eric Holder’s call for weakening Miranda rights in the name of national security.

“[C]ivil libertarians and even experienced FBI interrogators argue,” Serwer writes, “that attempting to modify Miranda would be a political solution to a national security problem that doesn't exist.”

Conservative criticism of Miranda itself has had a dramatic effect, which can be seen in the administration's handling of the Times Square attempt. Testifying before a Senate subcommittee on May 6, Holder said Shahzad had been questioned for "hours" under the public-safety exception before being read his Miranda rights. According to the administration, he also waived his right to be brought before a judge and so was questioned for two weeks before seeing the inside of a court on Tuesday.

After Holder announced the administration sought to change the rules around Miranda, The New York Times reported that the administration also wanted to be able to prolong the time that law enforcement can detain a suspect before bringing him or her before a judge, generally 72 hours. Under the PATRIOT Act, law enforcement can actually get an extension -- in the case of a non-citizen -- as long as seven days. The administration's position on Miranda represents a reversal from its previous position, supported by veteran FBI national security officials like Ali Soufan, Jack Cloonan, and Joe Navarro, that law-enforcement procedures don't interfere with intelligence gathering.

Serwer’s full piece is worth a read.

This week, People For joined 34 other progressive organizations in sending a letter to Holder urging him to reconsider the proposed move. “Weakening Miranda,” the groups wrote, “would undercut our fundamental Fifth Amendment rights for no perceptible gain.”

PFAW

Taking a Stand on Immigration Reform

The New York Times ran a powerful editorial today on the stark contrast between the courage of activists fighting for fair and comprehensive immigration reform and the somewhat less courageous behavior of those in power in Washington.

They highlight the story of four students—three of them undocumented immigrants who came to the country as children— who were arrested Monday for staging a sit-in in Sen. John McCain’s Tucson office to advocate for the DREAM Act.

Who else has shown such courage in the long struggle for immigration reform? Not Mr. McCain, who ditched his principled support of rational immigration legislation to better his odds in a close re-election campaign against a far-right-wing opponent. Not President Obama, who has retreated to lip service and vagueness in his calls for reform. Not his administration. The Justice Department has stood by as a civil-rights coalition — the American Civil Liberties Union, Maldef, the N.A.A.C.P., the National Day Laborer Organizing Network and others — has swiftly sued to block the Arizona law.

Other supposed defenders of immigrants, Democrats in Congress, have lost their voices. Senators Charles Schumer, Robert Menendez and Harry Reid, mindful of November elections and frustrated Latino voters, have unveiled a blueprint for immigration reform that parrots Republican talking points about clamping down the southern border and treating the undocumented as a swelling tide of criminals.

Good immigration reform needs a good bill, and the administration and the president and Democratic leaders haven’t yet offered or convincingly fought for one. The fight for reform is stalled. It could be simple acts of protest that ignite a fire. Half a century ago it was young people, at lunch counters and aboard buses across the South, who help galvanize the movement for civil rights, and to waken more powerful elders to injustice.

Last month, we documented the dangerous and deceitful playbook that the right wing has constructed to stamp out any attempt at advancing reasonable immigration reform…and then we saw the playbook at work in Arizona, where moderate legislators supported an appalling anti-immigrant bill by an extreme right wing politician; in the rapidly changing immigration views of Sen. McCain; and in the reluctance of congressional Democrats to get near the issue in an election year.

The right wing certainly hasn’t made it easy for elected leaders to stand up for a fair and pragmatic approach to immigration reform…but it’s sad to see how few are willing to take the risk.
 

PFAW

Wall Street’s 903 Anti-Reform Lobbyists

A Public Citizen report, released today, finds that since the start of last year, lobbyists fighting against strong derivatives regulation—a key part of Wall Street reform—have outnumbered those supporting it by a ratio of 11-1.

Since the beginning of 2009, nearly 1,000 lobbyists have worked on at least one of nine key bills designed to rewrite the rules governing derivatives, a new Public Citizen report shows.

These lobbyists have overwhelmingly represented organizations opposing or attempting to water down proposed regulation, according to Public Citizen’s analysis of lobbying disclosure data filed with the U.S. House of Representatives.

Lobbyists representing opponents of strong derivatives reform have outnumbered pro-reform lobbyists by more than 11-to-1 (903 to 79 lobbyists). Among the clients represented by the anti-reform lobbyists were the nation’s five largest banks, several major financial trade associations and the U.S. Chamber of Commerce.

With that kind money and influence advantage, it’s no wonder the big banks have felt free to take big liberties with the facts about reform.

PFAW

YEO Network Member Kyrsten Sinema Discusses Arizona Immigration Law

Arizona State Representative Kyrsten Sinema, in Washington for the annual convening of PFAW Foundation’s Young Elected Officials Network, went on C-SPAN’s Washington Journal on Saturday to discuss Arizona’s new immigration law. Watch the full clip here:

Sinema, recipient of last year’s Young Elected Officials Network Barbara Jordan Leadership Award, has been a strong voice in opposition to Arizona’s new law, and in support of real, comprehensive immigration reform. You can watch her debate Maricopa County Joe Arpaio on CNN here, and discuss the new law with Keith Olbermann here.

PFAW

Coalition Urges Holder to Reconsider Moves to Weaken Miranda Rights

A coalition of 35 progressive organizations, including People For the American Way, sent a letter to Attorney General Eric Holder this morning urging him to reconsider his stance on weakening Miranda rights. Holder has said the Obama Administration is open to expanding the “public safety exception,” which allows officers in exceptional circumstances to question suspects before reading them their rights. The coalition, led by the National Association of Criminal Defense Lawyers, argues, “Weakening Miranda would undercut our fundamental Fifth Amendment rights for no perceptible gain.”

As you know, the Supreme Court crafted the "public safety exception" to Miranda more than 25 years ago in New York v. Quarles. This exception permits law enforcement to temporarily interrogate suspected terrorists without advising them of their Miranda rights – including the right to remain silent and the right to an attorney – when "reasonably prompted by a concern for public safety." It allows federal agents to ask the questions necessary to protect themselves and the public from imminent threats before issuing a Miranda warning. Provided the interrogation is non-coercive, any statements obtained from a suspect during this time may be admissible at trial.

Law enforcement used the Quarles “public safety exception” to question Umar Farouk Abdulmutallab, the so-called “underwear bomber,” and Faisal Shahzad, the alleged “Times Square bomber.” Both suspects reportedly provided interrogators with valuable intelligence during that time and continued to do so even after being advised of their rights. As you observed during your May 9, 2010, appearance on “Meet the Press,” “the giving of Miranda warnings has not stopped these terror suspects from talking to us. They have continued to talk even though we have given them a Miranda warning.”

In the nearly nine years since the attacks of 9/11, the Department of Justice has obtained convictions in more than 400 international terrorism or terrorism-related cases without weakening Miranda or risking the safety of Americans. The “public safety exception” is exception enough. Should the need arise to conduct an un-Mirandized interrogation unrelated to any immediate threat to public safety, law enforcement is free to do so under the Constitution. Miranda imposes no restriction on the use of unadvised statements for the purpose of identifying or stopping terrorist activity. The Fifth Amendment only requires that such statements be inadmissible for the purposes of criminal prosecution. Yet even this requirement has exceptions. Un-Mirandized statements obtained outside the public safety exception may still be used for impeachment, and physical evidence discovered as a result of such statements may also be admissible.

Read the full letter here.

 
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