Jeff Sessions is at it again. In a statement following the release of tens of thousands of pages of documents related to Supreme Court nominee Elena Kagan on Friday, Sessions concluded:
Kagan’s memos unambiguously express a leftist philosophy and an approach to the law that seems more concerned with achieving a desired social result than fairly following the Constitution. Ms. Kagan has never been a judge, and only briefly practiced law—spending far more time as a liberal advocate than a legal practitioner.
Sessions, the top Republican on the Senate committee that will grill Kagan this summer, has apparently decided to stick to the blanket accusation of “judicial activism”—or, as it is now known, “outcomes-based” judging. The idea that conservative judges read the Constitution while liberal judges pull ideas out of thin air was spectacularly disproved by the Roberts Court’s ruling in Citizens United v. FEC, and recently received a thorough takedown from former Justice David Souter. Yet Sessions continues to peddle nonsense about progressive appointees caring more about a “social result” than the Constitution.
And, by the way, when Sessions accuses Kagan of lacking judicial experience, he walks right into a well-documented double standard.
In a new piece for the Huffington Post, People For’s Michael B. Keegan argues that the confirmation process for Elena Kagan provides progressives with the perfect opportunity to take back a debate that the Right has dominated for far too long:
As Slate's Dahlia Lithwick has pointed out, the Republican message machine has managed to convince America at large that only two kinds of Justices exist: rigorous conservatives who scrupulously apply the original intent of the Constitution, and carefree liberals who flaunt the law to rule for whichever party their big, soft hearts prefer. It's a myth, but it didn't spring up from nowhere. It's the direct result of a concerted effort pushed by conservative ideologues like Ed Meese and supported by Ronald Reagan, George Bush, and eventually the entire GOP machine.
For decades, this campaign has paid enormous dividends to the Right, with ultra conservative judges frustrating progressive goals and allowing elected conservatives to trample our Constitution. But over the last few years, a series of decisions by the Roberts Court have exposed its flaws and given progressives an opening to take back the conversation.
In his commencement address at Harvard last week, former Supreme Court Justice David Souter offered up an eloquent and thorough debunking of the popular conservative delusion of constitutional “originalism.”
At issue is "originalism," an approach to reading the Constitution whose seeming precision has given conservatives a polemical advantage over the liberals' "Living Constitution" idea that appears to let judges say our founding document means whatever they want it to mean.
Justice Antonin Scalia, the court's leading orginalist, summarized his opponents' attitude toward the Constitution with four words: "You know, it morphs."
Now, thanks to Souter's commencement address at Harvard last week, Scalia's critics have fighting words of their own. Souter, who did not mention Scalia by name, underscored "how egregiously it misses the point to think of judges in constitutional cases as just sitting there reading constitutional phrases fairly and looking at reported facts objectively to produce their judgments."
The problem is not only that "constitutions have a lot of general language in them in order to be useful as constitutions," but also that the U.S. Constitution "contains values that may very well exist in tension with each other, not in harmony."
This means that "hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another."
Souter focused on the example of Brown v. Board of Education, the 1954 decision that declared segregated schools unconstitutional. "For those whose exclusive norm of constitutional judging is merely fair reading of language applied to facts objectively viewed,” he said, “Brown must either be flat-out wrong or a very mystifying decision.”
Carl Pope, chairman of the Sierra Club, has written an account of the efforts of the business lobby and Republican Senators to keep Rhode Island environmental lawyer John McConnell off the federal bench.
McConnell’s offense? Representing the State of Rhode Island in a lawsuit to get a lead paint manufacturer to clean up the damage caused by its toxic product. (A jury awarded the state $2.4 billion in cleanup costs; the Rhode Island Supreme Court threw out the verdict).
Whatever you think of the verdict, McConnell was a lawyer representing a client, the State of Rhode Island. He argued on behalf of his client, which is what lawyers are supposed to do. Litigators are not supposed to behave like judges (until and unless they actually become one).
That distinction was lost on Senators Kyl and Sessions. Sessions actually argued:
"Being passionate and zealous is a good quality for a litigator. But I do think those qualities are somewhat different in the cloistered halls of a courtroom, where you're reading briefs and trying to be objective. Those emotions might again start running, and you might say that 'There's a wrong there that I need to right.'"
The two Republican senators were echoing the arguments of the Chamber of Commerce, which had warned Congress against McConnell:
"His apparent bias against the business community and questionable judicial philosophy raise serious reservations about his fitness to serve a lifetime appointment to the federal bench," said Lisa Rickard, president of the U.S. Chamber's Institute for Legal Reform. "McConnell's elevation to the federal judiciary could create a 'magnet' jurisdiction that would encourage additional meritless, plaintiffs' lawyer-driven lawsuits."
The U.S. Chamber spends more on lobbying Congress than any other organization. It is not a coincidence that it has made itself a powerful—if not always logical— voice in the shaping of federal courts.
The Supreme Court’s conservative majority ruled today that suspects being interrogated can only invoke their right to be silent if they say so explicitly—they can’t just remain silent. Justice Sonia Sotomayor, in a dissenting opinion, called the ruling a "substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona has long provided.” The Los Angeles Times explains:
In the past, the court has said the "burden rests on the government" to show that a crime suspect has "knowingly and intelligently waived" his rights.
But in a 5-4 decision Tuesday, the court said the suspect had the duty to invoke his rights. If he failed to do so, his later words can be used to convict him, the justices said.
The ruling comes in a case involving a murder suspect who, though read his Miranda rights, never said he would waive them. After three hours of interrogation, he offered a few monosyllabic responses that implicated him in the crime. The Supreme Court’s majority, in an opinion by Justice Anthony Kennedy, went beyond the case in question to hold that suspects, rather than having to explicitly agree to be interrogated, have to explicitly invoke their Miranda rights in order to halt questioning.
Sotomayor pointed out that requiring a suspect to speak in order to remain silent doesn’t really make sense:
Justice Sonia Sotomayor, the court's newest member, wrote a strongly worded dissent for the court's liberals, saying the majority's decision "turns Miranda upside down."
"Criminal suspects must now unambiguously invoke their right to remain silent — which counterintuitively, requires them to speak," she said. "At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded."
She also criticized the majority for going beyond the decision necessary for the specific case in order to make new and broader rules:
If, in the Court’s view, the Michigan court did not unreasonably apply our Miranda precedents in denying Thompkins relief, it should simply say so and reverse the Sixth Circuit’s judgment on that ground. “It is a fundamental rule of judicial restraint . . . that this Court will not reach constitutional questions in advance of the necessity of deciding them.” Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U. S. 138, 157 (1984).
It’s a perfect example of how the Roberts majority, while displaying remarkable ambivalence to the practical implications of its rulings, isn’t just calling “balls and strikes”—it’s going to bat for its own unprecedented agenda.
The House has just passed a Defense authorization bill that includes a path to repealing the discriminatory and way too long-lived Don’t Ask Don’t Tell policy. The vote was 229 – 186.
Earlier today, People For President Michael Keegan said of the policy that prevents gay men and lesbians from serving openly in the military:
This discriminatory policy has for 17 years prevented patriotic citizens from serving our country in the armed forces. Because of this policy, thousands of qualified men and women have been forced out of the military simply because they are gay, and countless others have been deterred from serving in the first place. The policy does a disservice to men and women who have served this country with honor and stands in contradiction to our values as Americans.
The Senate must now clear its version of the bill. Republicans have threatened a filibuster.
But, despite the overwhelmingly cynical national dialogue on immigration reform, there remain individuals and groups who insist on treating immigrants and the issue of reform with reason and respect.
One of those groups is the African American Ministers Leadership Council, a project of PFAW Foundation. On Cinco de Mayo, several representatives of AAMLC gathered on Ellis Island to sign a multi-faith covenant calling for honesty, respect and dignity in the conversation about immigration reform—and promising that they would follow those principles in their outreach to their own faith communities.
We recently put together a short video of the event:
Matt Coles at the ACLU has written an interesting blog post outlining some major reasons why the repeal of Don’t Ask Don’t Tell is so important. One of his points especially resonated after last week’s firestorm around Republican Senatorial Candidate Rand Paul:
Second, we need to get rid of DADT because it is a blot on the Constitution. DADT enshrines in federal law a principle which had been rejected in most other contexts: that discrimination could be justified by the prejudice of others. In the 60s, businesses in the South said that the prejudice their customers had against black people ought to give them an exemption from discrimination laws. Congress and the courts disagreed. In the 80s, government agencies actually defended discrimination on the basis that neighbors (or others) had strong negative feelings about disabled people, "hippies" and even older people (in Miami of all places). Again, the courts disagreed. But in the Congress that passed it, the single justification for Don't Ask, Don't Tell was not that gay members of the Armed Forces couldn't do their jobs. It was rather that heterosexual service members would be so unnerved by the mere presence of gay people that they would be unable to perform theirs. As long as DADT endures, the idea that your rights can't be taken away just because someone else doesn't like you is hardly secure.
Last week, Rand Paul struggled to defend his view that the government should allow private enterprises to discriminate against people based on race, gender, or sexual orientation. He was forced to backtrack on his position after his statements were shot down by civil rights groups, the media, and members of his own party. His reasoning essentially amounted to the idea that the government has more of a duty to protect the right to discriminate than to protect those who are discriminated against. Sound familiar?
That’s a false and outdated interpretation of the Constitution—one that didn’t hold water in 1964, and doesn’t today.
(And, as a sidenote, check out the American Prospect’s takedown of another one of Paul’s perversions of the Constitution).
Yesterday the Senate Armed Services Committee voted 18-10 to approve the Defense authorization bill. This legislation, which includes conditional repeal of Don’t Ask, Don’t Tell, also takes an important step toward equality in reproductive rights for military women.
Existing law prohibits, in most circumstances, military hospitals from providing abortion care. The ban treats women who have chosen to serve their country, as well as military wives and daughters, as second-class citizens by limiting their constitutionally protected right to choose. And it endangers their health. These women rely on military hospitals for medical care and are often stationed in areas where alternative local medical facilities are inadequate or unavailable. A woman facing an unintended pregnancy may be forced to risk her life by seeking an unsafe abortion or delaying an abortion until she can travel to a location where adequate medical care is available.
The Committee sent a clear message that endangering the health of military women is unacceptable. Should it become law, the new language would allow military women to use their own funds for abortion care at military hospitals.
The House voted Thursday to let the Defense Department repeal the ban on gay and bisexual people from serving openly in the military, a major step toward dismantling the 1993 law widely known as “don’t ask, don’t tell.”
The provision would allow military commanders to repeal the ban. The repeal would permit gay men and lesbians to serve openly in the military for the first time.
It was adopted as an amendment to the annual Pentagon policy bill, which the House is expected to vote on Friday. The repeal would be allowed 60 days after a Pentagon report is completed on the ramifications of allowing openly gay service members, and military leaders certify that it would not be disruptive. The report is due by Dec. 1.
The Senate Armed Services Committee also adopted repeal yesterday by a 16-12 vote.
Both chambers still have to clear the full Defense authorization bill that now includes the Don’t Ask, Don’t Tell repeal. And, even if passed, how Don't Ask, Don't Tell is repealed will depend on the results of a Pentagon study due in December.
Still, yesterday’s votes were a long-awaited and critical step in the right direction.
People For’s statement on yesterday’s votes is here.
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.
[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.
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.
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.
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.
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.