PEOPLE FOR BLOG

Court Rejects State Secrets Claim in Wiretapping Suit

There was good news today from the federal court of appeals in San Francisco today:

The Obama administration has lost its argument that a potential threat to national security is a good enough reason to stop a lawsuit challenging the government's warrantless wiretapping program.

A federal appeals court in San Francisco on Friday rejected the Justice Department's request for an emergency stay. The Obama administration, like the Bush administration before it, cited the so-called state secrets privilege as its defense. The government claimed national security would be compromised if a lawsuit brought by the U.S. chapter of an Islamic charity was allowed to proceed.

You may remember that we were more than a little disappointed when the Obama Administration decided to assert its state secrets privilege earlier this month.  Today's ruling was a good sign our third branch of government is standing up for the rule of law.

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Remembering Barbara Jordan

Every February, People For the American Way, along with the rest of the country, celebrates Black History Month. And this year, more than ever, it's humbling to see just how far our nation has moved. And how far we still have to go.

I'm proud that People For the American Way can point to its own history to demonstrate why Black History Month is relevant to people of all backgrounds. Barbara Jordan was the first African American woman to serve in the Texas State Senate, the first African American woman to represent a southern state in Congress, and one of the founders of People For the American Way.

In 1981, when U.S. Representative Barbara Jordan joined Norman Lear to form People For the American Way, they understood that the promise of our nation, that all men (and women) are created equal, was not just unrealized, but was under active attack. But instead of focusing on what was wrong with our country, they used their powerful, utterly unique voices to speak for America's highest ideals and to push forward towards a better America.

Rep. Jordan was an energetic advocate of our Constitution's core values of fairness and equality under law. She continues to be an inspiration in our work, and it's not an exaggeration to say that it's because of leaders like Barbara Jordan that we were all able to celebrate the inauguration of President Barack Obama last month.

But still, there are those who are intent on dragging us backwards. While the inauguration was still fresh in our minds, People For was forced to lead an aggressive campaign to help confirm President Obama's Attorney General nominee, Eric Holder -- the first African American to hold the position. After eight years spent undermining the crucial work of the Department of Justice, the Right is fighting hard to prevent the new administration from truly restoring justice at the DOJ. This is why Attorney General Holder's comments about the racism in America ring true to so many of us in this constant battle against those who would turn back the clock on civil rights. And just last week we all got an ugly reminder of this pervasive racism and racial insensitivity in America when the New York Post published an offensive cartoon depicting President Obama as a chimp getting shot by two white police officers. The cartoon literally included several layers of tastelessness: the comparison of our first African American president to an ape, what could be construed as an invitation for violence against the president AND the stirring up of racial issues with law enforcement in a city that has particularly sensitive recent history in that area.

Many have pointed out that the lack of diversity in senior management and on the editorial staff of the Post was a major contributing factor to how a cartoon like that could get published in the first place. That's why I'm proud that People For and our affiliate foundation have taken so seriously our mission to help promote diversity. It can be seen very clearly in People For the American Way Foundation's leadership development programs, the Young Elected Officials Network and Young People For, which are among the most diverse programs of their kind -- ever. And it can be seen in our groundbreaking efforts to promote equality for all, like with People For Foundation's work with African American ministers to combat homophobia in the Black Church.

We're working hard to make sure that civil rights remain a top priority for this administration, and fighting against those who are intent on erecting barriers to the ballot, not to mention advocating for a more just Supreme Court, organizing for marriage equality for all and defending religious liberty by maintaining the separation between church and state.

Barbara Jordan made clear that there are certain principles that are not negotiable, values she called "indigenous to the American idea." Opportunity. Fairness. Equality under law. Those are still the values that bind our community together, and every day we're moving closer to that nation that she envisioned.

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Justice Stevens moderates panel on Marbury v. Madison

Today, at an event sponsored by the First Amendment Center and the Supreme Court Fellows Program Alumni Association, Justice John Paul Stevens, the Senior Associate on the Supreme Court, moderated a discussion with the authors of a new book, The Great Decision: Jefferson, Adams, Marshall and the Battle for the Supreme Court, Clifford Sloan and David McKean. The Justice gave only a brief introduction before the authors spoke about the book and answered questions. Justice Stevens first spoke about his initial exposure to Marbury v. Madison in law school. He jokingly reminisced about the length of time spent on the case, stating that his teacher spent the first six weeks of a constitutional law class devoted solely to the intricacies of the case. He voiced his admiration for the case, calling it fascinating, and agreeing with the assertions by the panelists that the case is “the cornerstone of the Constitutional system.

He then moved on to an issue that, while he admitted was not directly on topic, was very important, the separation of powers. Marbury solidified the independence of the judiciary as a separate branch of government with its own powers. Stevens strongly believes in this and voiced concern that the wall between the executive and the judiciary is weakening. He recalled that when he was sworn in as a justice, his ceremony was performed in the Supreme Court which he viewed to be strongly symbolic of the separation between the political appointment process and his judicial post. Since that time, however, the practice changed and is now performed in the White House. He has boycotted the past four swearing in ceremonies, as he believes that the judiciary should be strongly separated from the political branches, beginning with the swearing in. Stressing the symbolism of the place and manner of the oath, he voiced hope for a change in this process with the next appointee.

Again focusing on the importance of separating the judicial branch from the political process, Stevens questioned the authors about the impeachment of Justice Chase from the Supreme Court shortly after Marbury was decided. Essentially, the opposition party in the House of Representatives sought to impeach Chase because they did not agree with his decisions politically, and used the impeachment as a retaliation against the Court. Chase was eventually acquitted, establishing the doctrine that judges may not be removed due to a dispute over their political preferences or political disagreement with their decisions.

Those looking to for a discussion focused on Stevens's thoughts on the issue might have been disappointed.  Through out the event Stevens was largely content to listen to the panelists. When he spoke he showed his vast knowledge on the subject area, but remained in the role of moderator and gave much of the spot light to the panelists.

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The GOP as the Party of No

I just came back from an executive meeting of the Senate Judiciary Committee where once again the Republicans are demonstrating a reflexive and not very wise strategy of just saying NO. Senator Leahy, chair of the Committee was trying to move the nominations of two key Justice Department nominees, Elena Kagan, who will be the first woman to be confirmed as the Solicitor General of the United States, and Tom Perrelli, who will be the third-most senior official at the Justice Department, but Republicans on the committee refused to permit a vote. 

It’s not that they’re not entitled to do this – they have the procedural right under the Committee’s rules to hold the votes over until the next meeting of the Committee. My concern is that the Republicans didn’t appear to have any good reasons for delaying the votes other than “because we can.” That shouldn’t be acceptable, particularly where, as here, the delay denies Attorney General Holder and President Obama the senior leadership team they need to address the enormous task of restoring public confidence in the Department’s commitment to the rule of law.

Senator Leahy has bent over backwards to accommodate the Committee Republicans, in much the same way that President Obama has tried to reach across the aisle on a range of issues. But the response is obstructionism and delay. Saying NO just because you can is not sound policy and is not good for the American people.

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DC has a 200-year long line at the polls…but not for long

Long lines at the polls on Election Day are a problem not to be ignored. But imagine if you had been standing in line to vote since 1801. That’s where you’ll find the nearly 600,000 Americans living in DC. Thankfully, their 200-year wait is nearly over.

This morning the Senate brought DC one step closer to the ballot box by clearing a procedural hurdle placed in the way of the District of Columbia House Voting Rights Act of 2009 (S. 160). I was in the Capitol as 62 Senators cast votes in favor of moving this bill forward. By the end of the week, it may very well be in the hands of the House. Then it’s on to the President’s desk. President Obama is a strong supporter of DC voting rights and a former cosponsor of the bill, which would give DC a full Representative with the same voting power as other House members.

As I joined my colleagues who had gathered for the vote, I couldn’t help but think about my own journey to get to this point. DC voting rights has had a place in my portfolio for some time, and an even longer history with People For the American Way, an organization that has worked for years in the field and on Capitol Hill alongside DC Vote and its coalition in support of DC’s voting voice in Congress.

Today is a day of great celebration for all of us who belong to this movement, including those of you who have made calls, written letters, and visited Congress to say that House representation is long overdue for DC. Thank you for everything you’ve done.

But the fight is not yet over. The right-wing has S. 160 (and its House companion, H.R. 157) in its sight and will try to derail its progress. Contact your Representative and Senators to make sure they are on the right side of history when it comes to the rights of DC residents.

And the fight will not be over even when DC can cast a House vote. It is high time the nation’s capital be given both House and Senate representation, with voting power in both chambers.

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The Obstruction Strategy

On Wednesday night, I was thrilled to represent People For the American Way members and activists at a small White House reception. When meeting the President and First Lady, as well as Vice President Biden and his wife Jill, it really sunk in that, finally, progressives are no longer locked out as we were during the Bush administration. People For's seat at the table is the Obama administration's recognition of you and all your efforts, your passion and your activism, and our collective strength.

We will still need to organize and fight to achieve our goals, but so much more is possible now and it's good to know that we have a receptive audience. Our vigilance is needed to help make sure the administration does the right thing, but it's also needed because with this shift that I've just described, the Far Right has amplified its efforts to divide Americans and obstruct a progressive agenda.

Yesterday, People For the American Way released a Right Wing Watch In Focus report exposing the Radical Right's real intentions in their efforts to obstruct confirmation of President Obama's Department of Justice nominees:

"The rhetoric used in the attacks, documented extensively on RightWingWatch.org, suggests that the campaign may be less about actually stopping any of these nominees and more about getting right-wing activists, pundits, and lawmakers warmed up for similar attacks on eventual Obama nominees to the federal judiciary, and in particular to the U.S. Supreme Court."

This is more than just "playing politics." The DOJ is a vital branch of the government and these positions are critical to fill. Americans need to be able to put the past eight years of politicization and cronyism at the Department behind us and once again rely on the DOJ as a protector of our rights and values.

As I write this, the Justice Department is at the center of some serious legal matters pertaining to fundamental checks and balances. The Bush administration pushed most people's understanding of executive power to the limit and went significantly beyond. Some members of Congress did not take it lying down, asserting their constitutional authority and acting on their duty to check the president's power and cut through the extreme secrecy. But the process will be a long and intense one and we need a full team in place at Justice to help do the job.

The Senate must not delay in confirming all of the president's nominees, and first up, due to be voted on in committee next week, is Deputy Attorney General nominee David Ogden.

Ogden is incredibly well qualified, but the Right has attacked him because of his representation of American Library Association, the American Booksellers Association, and, yes, Playboy and Penthouse in First Amendment cases. They also went after him for arguing vigorously on behalf of a woman's right to choose and advocating that the U.S. follow the U.N. Convention on the Rights of the Child -- something that only the most fringe elements on the Right oppose.

But most of all, the Far Right is flexing its muscle in advance of judicial confirmation battles to come.

The Family Research Council has generated thousands of calls to the Senate in opposition to Ogden as a show of strength. It is absolutely necessary that senators not only hear from their side. Every senator needs to see that progressive activists are willing to stand up for constitutional values and weigh in on these fights. And they need to see it well in advance of Obama's first judicial nominations.

Please take a moment now to send an e-mail to your senators urging the swift confirmation of David Ogden as Deputy Attorney General.

Whether you live in a red state or a blue state, your senators need to hear from you. Even the most right-wing senators need to know that people in their states are spreading a counter message and are ready to hold them accountable.

Help Ogden achieve speedy confirmation for the sake of the DOJ AND to show senators that it's not only the Right that's strong.

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News From Newark

Readers of blogs like Towleroad and GayPolitics may have come across a story this week about Newark, Delaware City Councilman Ezra Temko, who pushed anti-discrimination legislation through the council, and came out in the process.

What you might not have read is that Ezra is also a graduate of People For Foundation’s Young People For and Front Line Leaders Academy, and is now a member of our Young Elected Officals Network. I’ve had the pleasure of working with Ezra during some communications trainings in those programs, and would like to add that in addition to being a trailblazer, Ezra is also one of the nicest, most genuine guys I’ve gotten to know in my time at People For.

So congratulations Ezra, on bringing a little more fairness and equality to the Blue Hen State.

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Hardly the End of DOMA.

Late last week, you may have seen headlines about a federal judge on the U.S. Court of Appeals for the Ninth Circuit who ruled the Defense of Marriage Act unconstitutional. For anyone in favor of equal justice under law (and opposed to DOMA) this was good news. Unfortunately, the ruling is extremely limited. For your convenience, we’ve answers a few of the questions we've heard about the decision.

Q: What happened?

A: The case involved Brad Levenson, a public defender in the federal court system whose employer -- the Office of the Federal Public Defender -- denied his husband spousal health insurance benefits because of the Defense of Marriage Act (DOMA). Rather than simply accepting this state of affairs, Levenson filed a complaint with his employer -- the 9th Circuit Court of Appeals.

Judge Stephen Reinhardt of the Ninth Circuit heard the case and issued a ruling that DOMA is unconstitutional, finding no rational basis to deny benefits to some legally married spouses and not to others.

Q: So does that mean DOMA is no longer in effect, at least within the states comprising the Ninth Circuit?

A: No, DOMA is still in effect there and everywhere else throughout the country.

Q: Why is that? Doesn't a circuit court opinion bind all federal courts within that circuit?

A: Yes, a circuit court opinion usually does just that. Normally, a circuit court opinion comes either from a three-judge panel or from all of the circuit judges. But this opinion came from just one judge, and it was more like an internal, administrative employment dispute resolution opinion.

Q: Why isn't it a regular court opinion?

A: Because the married couple claiming discrimination did not go to court and sue the federal government for the spousal benefits. Instead, Levenson, in his status as an aggrieved employee of the Office of the Federal Public Defender, filed an administrative complaint with his employer.

So Judge Reinhardt did not issue his opinion in his role as a federal appellate judge deciding the appeal of a lower court's legal holding in a conflict between two parties. Instead, he was acting in his capacity as the designated administrative decision-maker for the Ninth Circuit's Standing Committee on Federal Public Defenders.

Q: Circuit Court opinions are binding on lower courts in that circuit. Who is bound by Judge Reinhardt's decision on DOMA?

A: This is an internal administrative ruling by an employer about one employee's benefits. It certainly helps Brad Levenson and his husband. But in his capacity as the administrative decision-maker who was designated to hear Levenson's case, Judge Reinhardt doesn't hold a hierarchically superior position over the next decision-maker in the next employment dispute in the Office of the Federal Public Defenders within the Ninth Circuit.

Q: There was another case last month where a Ninth Circuit judge ordered the government to provide benefits to a same-sex spouse. Will that have more of an impact?

A: Not at all. It was another case where the judge was acting as the decision-maker in an employment dispute resolution. It involved a Ninth Circuit employee covered by the employment dispute resolution plan specifically applicable to Ninth Circuit employees, as opposed to the one applicable to members of the Federal Public Defender system.

In fact, when Judge Reinhardt issued his decision last week, he explicitly said that he was not bound by the January ruling, because two different employee dispute plans were involved. That shows how these decisions have little to no value as binding precedent.

Q: Is either case going to be appealed to the Supreme Court?

A: No, because these employment dispute resolutions are not regular Circuit Court opinions released as part of a criminal or civil judicial proceeding.

Q: Has anything changed for the widow who is denied her late wife's Social Security pension benefits, or for the American man whose non-citizen husband is threatened with deportation?

A: No. DOMA still denies gays and lesbians the more than one thousand federal rights and responsibilities that come with marriage. Last week’s news doesn't change that.

Q: What about a legislative remedy instead of a judicial one? Can Congress repeal DOMA?

A: Yes, definitely. President Obama is already on board and has called for repeal of this hateful law. We all need to work hard as hard as ever to get Congress to act.

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Rumors of their death...

Even before November's election, gallons of ink were being spilled to report the demise of the Religious Right. But, as Mark Twain might have said, rumors of the Right's death have been greatly exaggerated.

A small incident that was mostly ignored by the media gives a glimpse of the Radical Right's continued pull on Capitol Hill. Last week, People For's Right Wing Watch blog documented the evolution of a right-wing lie, starting with complaints by Pat Robertson's American Center for Law and Justice that a provision in the stimulus bill discriminated against people of faith (and was, specifically, anti-Christian). In fact the provision in the bill was standard language that barred the use of federal funds to construct buildings designed for religious worship or sectarian instruction and had no bearing at all on campus prayer.  Nevertheless, ACLJ's complaints bubbled up through the right-wing echo chamber and eventually became an amendment, offered by Senator DeMint of South Carolina, to strip the provision. The amendment was ultimately defeated, although by a less-than-comfortable margin. In the end, 43 senators, including some Democrats, voted with DeMint ... on an amendment that was based on nothing but the paranoid demagoguery of a fringe right-wing organization.

The right-wing message machine is firing on all cylinders too: aggressively targeting the Obama administration. It has already weighed in heavily on the economic stimulus plan, ensuring that there was no Republican support for the Obama plan during the House vote (and little more in the Senate), and Religious Right leaders are moving quickly to increase their influence within the Republican Party and at the state and local level.

Perhaps most dauntingly, the Right is laying the groundwork for future battles over judicial nominations. Some Right Wing leaders, including Family Research Counsel President Tony Perkins, have been very explicit about linking their current attacks on DOJ nominees to future obstruction of Obama judges. And if the current attacks are any indication, they'll throw everything they've got at the President's nominees to the bench. Deputy Attorney General-nominee David Ogden, for instance, represented groups defending the First Amendment (including the American Library Association and the American Booksellers Association), and is now being smeared as a "porn lawyer" for his efforts. Dawn Johnsen, President Obama's choice to head the Office of Legal Counsel, is being aggressively targeted because of her outspoken opposition to the Bush administration's support of torture, rendition, and warrentless spying -- to say nothing of her time on staff at NARAL Pro-Choice America.

People For the American Way and People For the American Way Foundation are out there every day -- pushing back on the Right's unyielding efforts. We're digging in our heels for 2009, ready to:

  • research, educate about and counter extreme claims of the Radical Right;
  • uphold and advocate for a progressive vision of the Constitution;
  • support the confirmation of progressive jurists and promote progressive legal theories while taking part in strategic litigation;
  • fight for equality for all, especially through the Foundation's work to combat homophobia in the Black Church; and
  • invest in progressive leadership.

You can help with these efforts by helping to expose the Radical Right in your community, and by staying abreast of right-wing trends by reading the Right Wing Watch blog (and signing up for regular Best of the Blog e-mail updates).

By standing with People For the American Way, you are standing against the undeserved influence of right-wing extremists in our politics and our culture. And I thank you for it.

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Best Post on Glenn Beck Ever.

I can't do it justice with a synopsis. Click and read:

To attack Obama's New Deal, Beck invokes Henry Ford -- the Nazis' friend
By David Neiwert at Crooks and Liars
 

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Solicitor General Nominee Elena Kagan Sails Through Senate Judiciary Committee Hearing

 

Pres. Obama’s Solicitor General nominee and Harvard Law School Dean Elena Kagan went before the Senate Judiciary Committee today and anyone looking for fireworks was certainly disappointed – committee Republicans held their fire.  That’s probably due in part to the fact that Kagan has received the support of each of the last eight men to hold the post, and even won the respect of the Federalist Society during her years at Harvard.  She looks to be heading toward a speedy confirmation – to the dismay of some conservative groups and activists who have pressured committee Republicans to scrutinize Kagan’s nomination. 
 
Stay tuned.

 

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Dealing With the Right's Big Lies

We here at People For have been making the case since the November elections that even though the results were devastating for the Republican Party, they actually strengthened the Radical Right and increased its influence within the GOP. Republicans in Congress are now unabashedly taking their marching orders directly from right-wing demagogues and organizations ... even scarier: some Democrats seem to be falling in line as well.

Kyle at Right Wing Watch had two great posts yesterday on the Right's direct manipulation of some of the biggest current debates in Washington. He exposed how the targeting of President Obama's DOJ nominees is really being directed by the Family Research Counsel and other fringe groups and wrote about the outright lie started by Pat Robertson's American Center for Law and Justice (ACLJ) that a provision of the stimulus package -- now being debated in the Senate -- is an attack on people of faith.

The ACLJ’s water was carried by Senator Jim DeMint (R-SC) who actually offered an amendment to the stimulus package which would have stripped the 'controversial' provision -- the provision in question simply prevents the tax dollars being appropriated here from being used to support religion. So we had DeMint and others parroting lies on the Senate floor to support an amendment that had no legitimacy whatsoever.

And the amendment only failed by a close vote of 54-43 ... with several Democrats defecting and voting for DeMint's amendment!

Why did they defect? Well, in part, it's because President Obama's been sending them the wrong message about how to deal with the Religious Right. The other day, the president announced the creation of the White House Office of Faith-Based and Neighborhood Partnerships, but very conspicuously did not use the opportunity to rescind the Bush-administration policy making it legal for recipients of faith-based funding to discriminate in providing services.

Equivocation on very fundamental religious liberty issues will not help the country, and it will not help the president move his agenda. President Obama is starting to get angry – and rightly so -- at the people who are trying to derail his stimulus package. Most critics are trying to Republicanize the spending package to kill some very vital spending that would aid recovery and add more tax cuts. The president correctly states that the old supply-side economic policies of Reagan and Bush -- reckless tax cuts, cuts in spending where the economy needs it most, rampant and irresponsible deregulation -- were exactly the same policies that landed us in this economic mess to begin with. But now, some Democratic Senators are being cowed by the Rush Limbaugh-led Right into compromising on key parts of the stimulus plan.

Getting beyond partisanship is a lofty ambition, but when the other side is trying to take the country backwards, firm opposition is what's needed. Our new president would be best served to stick to the principles he campaigned on and stand up to the Right's ideological agenda -- whether it rears its ugly head in the economic debate or in the arena of constitutional rights and the separation of church and state.

President Obama and all the Democrats on the Hill should read People For the American Way's new Right Wing Watch In Focus memo on The Right's "Big Lie" Strategy.

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Restoring Justice, Step by Step

On Monday, Eric Holder was confirmed as Attorney General. Big news ... and good news for Americans who depend on the Justice Department to defend their rights. A bit more under the radar, Monday also saw another important piece of news at the DOJ. Leslie Hagen, a Justice Department attorney who was fired by Monica Goodling because of rumors that she was a lesbian, was rehired to her previous job at the Department.

This is just one step in cleaning up the appalling mess at the DOJ left by egregious politicization during the Bush administration. Monica Goodling, senior counsel to Attorney General Alberto Gonzales, was by all objective standards unqualified for such a high post. Her only "qualifications" -- the only ones that mattered in the Gonzales DOJ -- were that she was a partisan ideologue who graduated from Pat Robertson's Regent University Law School and was committed to reshaping the Justice Department to operate on a right-wing agenda.

Even though the politicization of the DOJ under President Bush was shameful (and possibly criminal), some senators apparently think it should continue and are taking their marching orders from the Radical Right. The next targets of their witch hunt? Three more of the president's eminently qualified DOJ nominees: David Ogden, Thomas Perrelli and Dawn Johnsen.

Dawn Johnson, for example, has been tapped to head the Office of Legal Counsel (OLC) -- the office that, under the Bush administration, produced the memos that served as its guidelines for detainee treatment and executive overreaching. Johnsen has been a harsh critic of the Bush administration's legal justifications for its policies. And, in her extremely impressive legal career, she spent several years at NARAL Pro-Choice America. Already some senators like Jeff Sessions of Alabama -- who earlier this week assailed the Johnsen nomination on the Senate floor -- are suggesting that, in their view, pro-choice bona fides should be an instant disqualifier.

Quickly confirming the rest of President Obama's Justice Department team will be one more important step, but there's still much more to be done to repair what was so damaged during the Bush years.

Let's look back at just a few of the disasters born out of DOJ's right-wing politicization:

  • political firings of U.S. attorneys;
  • political firings of staff attorneys, especially in the Civil Rights Division;
  • refusal to properly enforce civil rights laws, particularly those protecting voting rights;
  • Department approval and justification of unconstitutional policies from warrantless domestic spying to the denial of habeas corpus and torture.

People For the American Way will be pushing for investigations into these wrongdoings. I know how important this issue is to our activists -- you've pitched in time and again over the last eight years as we've pushed for accountability and the rule of law at the DOJ, and hundreds of you wrote me impassioned emails last week about just how critical it is to keep pushing.

Karl Rove and others who are subpoenaed to testify or provide documents must comply and cooperate not just with Justice Department probes into these matters, but also with any and all congressional investigations. Congressional action is what's needed to get to the bottom of what happened, hold those responsible accountable and prevent similar abuses of power from happening in the future.

Making sure investigations happen and proceed effectively and making sure President Obama's other Justice Department nominees are confirmed smoothly are just two things we'll be working hard for in the coming weeks, and there will be much more.

I'd also like to take a moment to ackowledge Supreme Court Justice Ruth Bader Ginsburg who is in the hospital recovering from surgery. She's a true defender of our constitutional values and I know you'll join me and the rest of the staff of People For in wishing her a speedy recovery.

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Mark Gitenstein for Office of Legal Policy

I’ve seen some concerns expressed about the possible nomination of Mark Gitenstein to head the Justice Department’s Office of Legal Policy, including questions about whether he’s sufficiently committed to protecting the rule of law to serve in the position at Justice involved in selecting and vetting potential federal judicial nominees. I want to weigh in on this conversation because I know Mark well.

I worked very closely with him when he was serving as Senator Biden’s Chief Counsel on the Senate Judiciary Committee and I was counsel to Senator Howard Metzenbaum. If you’re looking for someone committed to the rule of law, no need to look further. Mark can claim a lifetime of service to advancing the cause of civil rights and civil liberties in this country. As chief counsel to Senator Biden, Mark fought against the confirmation of federal judicial nominees who were not committed to protecting the civil rights and individual liberties of all Americans. He worked tirelessly in his position with Senator Biden to help protect the Civil Rights Commission and to extend the Voting Rights Act.

As counsel on the Senate Intelligence Committee he played a leadership role in the oversight investigation of the FBI abuses in the illegal surveillance and intimidation of Dr. Martin Luther King, Jr. and other civil rights and anti-war activists. He played a key role in the development of FISA, which grew out of that investigation.

As an advisor to Senator and presidential candidate Biden, Mark helped focus on the plight of the shrinking middle class advancing measures such as reforming health care to permit middle class and disadvantaged families to buy into the same health care insurance program available to members of Congress and expanding the availability of health insurance for children and expanding employer based retirement programs.

Mark has the smarts, integrity and values that we need in someone heading this critical office.

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New Rasmussen Supreme Court Poll: Garbage In, Garbage Out

This week, right-wing polling firm Rasmussen Reports heralded a new poll which supposedly revealed that 64% of Americans think that "Supreme Court decisions should be based on what is written in the Constitution," whereas only 27% think the decisions "should be guided by fairness and justice." Yes, you heard that right, Rasmussen conducted a poll which pitted "fairness and justice" against "what is written in the Constitution" and then blasted out a press release about their amazing findings.

The media all too often treats pollsters like they're interchangeable, and that's a shame. Rasmussen is infamous among pollsters for its automated polling method – computers, not people, ask the questions – which is frowned upon by mainstream practitioners. And sometimes I have to wonder whether the computers are doing more than just asking the questions. It's almost as if they're writing the poll questions and sending out the press releases too.

But back to this week's poll. Focus on the Family quickly chimed in to say it "reveals that the American people are much more conservative regarding judges than our president is or any of the liberals in Congress." This is laughable, but we can't just laugh it off.

The Right has convinced millions of Americans that the Constitution is inherently conservative and that woolly-headed liberal judges disregard the Constitution and our laws in order to reach their desired outcomes. But these are just myths they've created to help prevent what we, and the overwhelming majority of Americans, really want: a Supreme Court that interprets the Constitution in a fair and just way. There is no need to choose between "fairness and justice" and "what is written in the Constitution." We want both.

And as for Rasmussen, it's clear enough to see the game they're playing. If you ask people ridiculous questions they're going to give you ridiculous responses. You don't need a poll and a press release to tell us that.

Kathryn Kolbert is president of People For the American Way Foundation

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