Bush’s Courts

We talk a lot about the purely political motives Republican senators have in their efforts to slow down the confirmation process for President Obama’s judicial nominees. It’s easy to forget that who those nominees are—and when they start working— makes a huge difference. The Philadelphia Inquirer reported this weekend that nearly 40% of all federal judges currently on the bench were appointed by George W. Bush--who made a concerted effort to appoint judges with right-wing credentials, and, you might say, didn’t put much of a priority on gender or racial diversity.

Obama, in contrast, has returned to a more bipartisan appointment process and has a notably diverse list of appointees. But thanks to Republican obstruction, Obama’s appointees aren’t making it to the bench:

So far, nearly half of Obama's 73 appointments to the federal bench have been women, 25 percent have been African American, 11 percent Asian American, and 10 percent Hispanic. About 30 percent of Obama's nominees were white males. By contrast, two-thirds of George W. Bush's nominees were white males.

Obama's rate of appointing women and people of color is higher than those of any of his predecessors during the first year of their terms. But he is not the only one setting records.

According to a report by the Alliance for Justice, a liberal advocacy group: "The Senate confirmed both fewer nominees and a smaller percentage of nominees under President Obama than under any other previous five presidents during their first year in office."

Presidents Jimmy Carter and Ronald Reagan had 91 percent of their nominees confirmed in their first year in office. Since then, however, the figure has sharply declined, with George H.W. Bush getting 65 percent of his early judicial nominees confirmed, followed by Bill Clinton at 57 percent, George W. Bush at 44 percent, and Obama at 36 percent.

As recent events in the Fifth Circuit reminded us, it really does matter who ends up in federal judgeships. And Republicans, booted from control of the legislative and executive branches, are fighting tooth and nail to keep the courts.


A Hot Mess of Intolerance

In a new op-ed in the Huffington Post, Michael Keegan, People For’s president, asks why the GOP spent so much of Elena Kagan’s Supreme Court confirmation hearings defending the nearly-dead Don’t Ask, Don’t Tell policy. The answer? They just can’t seem to quit gay people:

We were once again given a strong reminder of this at Elena Kagan's confirmation hearings, when Republican senators hosted a four day-long attack on the nominee based on one issue--her opposition to Don't Ask, Don't Tell, the anti-gay policy that is not only overwhelmingly unpopular across the political spectrum, but is unlikely to even be on the books by this time next year.

This line of attack was catnip for the GOP because it provided a too tempting mix of three Republican stock favorites: provoking resentment of gay people, accusing Democrats of being anti-military, and insinuating the existence of an Ivy League East Coast Elite Conspiracy. With so many critically important issues facing the country and the world, this Republican obsession came off as a ridiculous hot mess of intolerance and irrelevance.

Read the full piece at the Huffington Post.


The “Irrational Prejudice” Behind DOMA

Yesterday, a federal judge in Massachusetts struck down a key part of the Defense of Marriage Act on two separate constitutional challenges. Judge Joseph Tauro, a Nixon appointee, ruled that the provision banning the federal government from recognizing gay people’s marriages violates the Constitution’s guarantee of equal protection, and the principle of state sovereignty.

Tauro’s opinion in the equal protection case includes some strong words on the motivation behind DOMA, the 1996 law designed to push back against states granting marriage equality. The main purpose of the law was to disadvantage a particular set of people simply out of dislike for them, he writes…and that sort of motivation doesn’t pass constitutional muster:

This court simply “cannot say that [DOMA] is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which [this court] could discern a relationship to legitimate [government] interests.” Indeed, Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit.

In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is irrational prejudice that motivates the challenged classification. As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.

It seems pretty straight-forward to conclude that the Constitution doesn’t allow Congress to discriminate against people just because they dislike them…but, of course, conservative groups are already calling itactivism.”


Judges Order Drilling to Continue

It looks like oil drilling will begin again in the Gulf of Mexico. Yesterday afternoon, three appeals court judges in New Orleans agreed with a lower court ruling that struck down the Obama Administration’s Gulf drilling moratorium. The President imposed the moratorium in order to allow for time to study what went wrong with the BP rig that burst in April, causing the worst oil spill in American history.

Alliance For Justice reported yesterday that the three judges on the panel all have significant ties to the oil industry.

The Oil Industry Ties of Oil Industry Judges

We’ve been worried about what will happen if liability suits from BP’s massive oil spill in the Gulf reach the Supreme Court. But it sounds like fans of justice might have more immediate concerns.

When a district court judge halted the Obama administration’s Gulf drilling moratorium last month, that judge’s history of ties to the oil industry caused a stir. Today, a three judge panel from the 5th Circuit Court of Appeals is set to hear an appeal of the case.

But we shouldn’t get our hopes up. Alliance For Justice has looked into the backgrounds of the three judges on the panel and found some pretty startling oil industry ties: two of the judges represented major oil companies in previous jobs, two have major investments in oil companies, and two went on an oil industry-financed junket to Montana in 2004 to learn “why ecological values are not the only important ones.”

Read the full Alliance For Justice report here.



Epstein Echoes Sessions: “Massive Resistance” to Citizens United

Today I went back to the Heritage Foundation for their annual “Scholars and Scribes” panel reviewing the recent and upcoming activities of the Supreme Court. There was some discussion of judicial activism, but most of the panelists seemed to have finally given up on the claim that conservative Justices have acted as neutral “umpires” in the past year.

What is surprising is that, now that the Court’s decision in Citizens United ruined the “judicial activism” mantra for the Right, a new tactic has apparently taken hold. During a question and answer session, conservative legal scholar Richard Epstein echoed Senator Jeff Sessions in comparing the Citizens United decision to, of all things, Brown v. Board of Education. His take was slightly different and, if possible, even more unhinged from reality. Those of us who oppose and are working to overturn the Citizens United ruling, Epstein said, “look a little bit like the same kind of massive resistance” engendered by Brown v. Board.

To compare the 93% of Americans who think that there should be limits on corporate political spending to the recalcitrant racists who tried to stop the desegregation of public schools is absurd and offensive. If conservatives are trying to paint corporations as victims akin to those who have suffered from institutionalized racism, they’re going to be fighting an uphill battle.


Legislature-Passed Civil Unions Bill Not Democratic Enough, Says Hawaii Governor

Hawaii’s governor, Republican Linda Lingle, has vetoed a civil unions bill that was passed by the state legislature in April. Her reasoning was interesting:

Lingle said voters should decide the fate of civil unions, not politicians.

"The subject of this legislation has touched the hearts and minds of our citizens as no other social issue of our day," she said. "It would be a mistake to allow a decision of this magnitude to be made by one individual or a small group of elected officials."

Wait, isn’t that how representative democracy works?

Perhaps Lingle can chat with Sen. Tom Coburn about their apparent mistrust of democratically elected bodies. Or do they only come out against representative government when it produces legislation they don’t like?


Regulation and the 2010 Elections

The Washington Post is reporting that Wall Street contributions to Democratic campaign committees are markedly lower than this time in 2006 or 2008.

The drop in support comes from many of the same bankers, hedge fund executives and financial services chief executives who are most upset about the financial regulatory reform bill that House Democrats passed last week with almost no Republican support. ... This fundraising free fall from the New York area has left Democrats with diminished resources to defend their House and Senate majorities in November's midterm elections.

With Democrats seeking to impose reasonable regulations designed to protect the American people, this is no surprise.

The Republican Congress was a dream come true for the rapacious financiers who dragged our economy over a cliff, just as it was for all manners of giant corporations. We're seeing the results of the Republican ideology of allowing the most powerful industries to write their own laws and draft their own regulations. Not even the Supreme Court is immune, as a recent report from our affiliate People For the American Way Foundation demonstrates.

Deregulation has made the most powerful even more powerful, while the rest of us find ourselves more and more helpless against corporate behemoths.

Anyone who's spent an hour on hold waiting to get through to a large corporation knows who holds the power in our society, and it isn't us. These companies have been allowed to become so large that they can afford to mistreat their consumers in ways that no business would have gotten away with a generation ago.

Are you happy with the level of corporate influence on our politicians and on our lives? Do you wish you could make Big Business even stronger?

Or do you think it's time for Americans to retake control of our lives? If so, then it's time to act. Because the corporations aren't sitting this election out.


A Lopsided Witness List

There’s an interesting pattern among the members of the military who are weighing into Elena Kagan’s Supreme Court nomination. On one side, we have members of the military who were at Harvard when Kagan was Dean and have showed up to testify or written letters in support her confirmation. And then there are the conservative activists who the GOP has recruited to testify against the Solicitor General and who, as far as I can tell, have never so much as met her.

All of these people should be commended for their military service. But are they equally qualified to speak about Kagan’s record?


Jon Kyl Attacks Women, Older Workers, Baby Seals

Today, when questioning the first panel of witnesses for the Elena Kagan confirmation, Senator Jon Kyl decided not to ask questions, but simply to attack those who had agreed to testify.

Instead of, say, listening to the witnesses, or even ignoring them, he accused three witnesses testifying about sex discrimination, age discrimination, and the devastating impact of the Exxon Valdez spill of demanding a Justice who would rule for them. All they wanted, he claimed, was “results oriented judging.”

He didn’t give them a chance to answer the accusation, so maybe we can answer for them.

No, Senator Kyl, all we want is a Justice who will follow the law.

In Ledbetter, the Court read the law in a cramped and unnatural way in order to limit the right of women to sue for discrimination. In Gross, the Court arbitrarily changed the standard used to determine discrimination on the basis of age. And in Exxon v. Baker, the Court invented a limit on punitive damages out of whole cloth—the ruling was so bad that even the Heritage Foundation thought it was judicial activism.

In the Ledbetter, Gross and Exxon cases, the Court went out of its way to side with corporations and defend them from people who were trying to hold them accountable.

Remind me again, Senator Kyl: what’s the definition of “results oriented judging?”


Lilly Ledbetter Recounts Her Fight

Lilly Ledbetter just appeared in front of the Senate Judiciary Committee to speak about the damage that can be done by a Supreme Court that’s not grounded in the realities of life for average Americans.

When Ledbetter found out that she’d been discriminated against, it would have been easy for her to just walk away—after all, it’s not in any way easy to pursue a discrimination claim—but Ledbetter was used to tough jobs. She stood up and demanded that Goodyear be held accountable for its actions. She fought hard, she pursued her case for many years, and she won.

But when the case made it to the Supreme Court, it decided that Goodyear couldn’t be held accountable for its actions. Because the company hid the discrimination for long enough, they were free to discriminate for as long as they wanted.

In 2007, when the Court denied her compensation for decades of pay discrimination, Ledbetter sat down with us to talk about her fight for fair pay for herself and others like her:

After the Supreme Court stopped her from collecting the pay she had earned, she led the fight to make sure it wouldn’t happen to anybody else—and she’s still fighting to make sure that the Supreme Court gives a fair hearing to people like her when they go up against big corporations like Goodyear.

She told the Judiciary Committee:

Since my case, I’ve talked to a lot of people around the country. Most can’t believe what happened to me and want to make sure that something like it doesn’t happen again. They don’t care if the Justices are Democrats or Republicans, or which President appointed them, or which Senators voted for them. They want a Supreme Court that makes decisions that make sense.

That’s why the hearings here are so important. We need Justices who understand that law must serve regular people who are just trying to work hard, do right, and make a good life for their families. And when the law isn’t clear, Justices need to use some common sense and keep in mind that the people who write laws are usually trying to make a law that’s fair and sensible. This isn’t a game. Real people’s lives are at stake. We need Supreme Court justices who understand that.


Jeff Sessions Comes Out Against Ideas

When I got to the office this morning, I turned on C-SPAN, which was rerunning the confirmation hearings all over again. While I was listening, I heard again something that caught my ear yesterday.

Senator Sessions: I think that yesterday you indicated that the court could consider foreign court opinions as they could “learn about how other people might approach” and think about approaching legal issues. And you said, well I guess “I'm in favor of good ideas coming from wherever you can get them.” I think some of the judges on the court have used that phrase, but ideas sound like policy to me. It does not sound like authority to me.

Is Senator Sessions arguing that judges shouldn’t have ideas? That having ideas per se might undermine the authority of the Court?

On one level, it’s a bit frightening, but, on another, it’s Chief Justice Roberts’ “balls-and-strikes” theory of judging extended to its absurd, inevitable conclusion.


The Immigration Misinformation Campaign

Last week, Arizona governor Jan Brewer further fanned the flames of resentment and suspicion around the immigration debate in her state when she announced her evidence-free view that the majority of people entering the United States illegally do so to transport illegal drugs. Thankfully, President Obama seems to be relying on actual facts in that area. In his speech today outlining the need for comprehensive immigration reform, he gave an honest explanation of the dangers of the current system:

The result is an estimated 11 million undocumented immigrants in the United States. The overwhelming majority of these men and women are simply seeking a better life for themselves and their children. Many settle in low-wage sectors of the economy; they work hard, they save, they stay out of trouble. But because they live in the shadows, they’re vulnerable to unscrupulous businesses who pay them less than the minimum wage or violate worker safety rules -– thereby putting companies who follow those rules, and Americans who rightly demand the minimum wage or overtime, at an unfair [dis]advantage. Crimes go unreported as victims and witnesses fear coming forward. And this makes it harder for the police to catch violent criminals and keep neighborhoods safe. And billions in tax revenue are lost each year because many undocumented workers are paid under the table.

As we predicted in our Right Wing Watch: In Focus report on the efforts to derail comprehensive immigration reform, the Right has not been letting facts get in the way of its smear efforts. From Brewer’s claim about drug smuggling to false assumptions that illegal immigration causes crime, opponents of immigration reform have been trying to shift the debate to be about fear and suspicion, rather than reality and solutions. These tactics are nasty, but they shouldn’t be underestimated.

It’s encouraging that Obama is trying to counter the campaign of misinformation. Let’s hope that it leads to actual solutions.


Joining the Club

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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