Some conservatives are still trying to argue that the Supreme Court is in danger of being overrun by “liberal activists.” But an article in Sunday’s New York Times, entitled “Court Under Roberts Is Most Conservative In Decades,” presented data from political scientists that pretty conclusively showed a conservative, not a liberal, ideology entrenched in the highest court.
One piece of data really stood out to me:
Four of the six most conservative justices of the 44 who have sat on the court since 1937 are serving now: Chief Justice Roberts and Justices Alito, Antonin Scalia and, most conservative of all, Clarence Thomas. (The other two were Chief Justices Burger and Rehnquist.) Justice Anthony M. Kennedy, the swing justice on the current court, is in the top 10.
That’s right: the current “swing” justice is considered one of the ten most conservative judges of the past 70 years. Centrist justices are in some ways even more important than the Court’s ideologues or even chief justices. As the Times article notes, the court’s most extreme shift to the right occurred when Justice O’Connor was replaced with the much more conservative Justice Alito:
By the end of her almost quarter-century on the court, Justice O’Connor was without question the justice who controlled the result in ideologically divided cases. “
On virtually all conceptual and empirical definitions, O’Connor is the court’s center — the median, the key, the critical and the swing justice,” Andrew D. Martin and two colleagues wrote in a study published in 2005 in The North Carolina Law Review shortly before Justice O’Connor’s retirement.
With Justice Alito joining the court’s more conservative wing, Justice Kennedy has now unambiguously taken on the role of the justice at the center of the court, and the ideological daylight between him and Justice O’Connor is a measure of the Roberts court’s shift to the right.
The statistics back up a right wing trend on the Supreme Court that has been hard to ignore. Since Alito joined the Court, it has made startling decision after startling decision, including overturning democratically enacted restrictions on corporate spending in Citizens United v FEC, and defending discrimination against women in the workplace in Ledbetter v Goodyear.
Just one justice can make the difference between democratically enacted campaign finance laws and unlimited corporate spending in elections; between employment discrimination laws that work for employees and those that work for employers; between our democracy holding corporations accountable and corporations owning our democracy.
All of which is why, when we talk about presidents and senators, we have to talk about the Court.
President Obama says he’s increasing the pressure on Republican Senators to stop stalling judicial nominees. After meeting with congressional leaders today, he told reporters:
Finally, during our meeting today, I urged Senator McConnell and others in the Senate to work with us to fill the vacancies that continue to plague our judiciary. Right now, we’ve got nominees who’ve been waiting up to eight months to be confirmed as judges. Most of these folks were voted out of committee unanimously, or nearly unanimously, by both Democrats and Republicans. Both Democrats and Republicans agreed that they were qualified to serve. Nevertheless, some in the minority have used parliamentary procedures time and again to deny them a vote in the full Senate.
If we want our judicial system to work -- if we want to deliver justice in our courts -- then we need judges on our benches. And I hope that in the coming months, we’ll be able to work together to ensure a timelier process in the Senate.
Since Obama took office, he has met with astounding Republican obstruction of his judicial nominees…which, if it continues, could have serious consequences on justice throughout the country.
Another set of senators have come forward to try to break the GOP’s logjam on judicial nominees.
Colorado Senators Mark Udall and Michael Bennett sent a letter Friday to the leaders of the Senate and the Senate Judiciary Committee to request a Senate vote on Colorado district court nominee William Joseph Martinez. Martinez was nominated to the seat in February and approved by the Judiciary Committee in April.
The GOP has refused to vote on Martinez’s nomination, along with the 20 other pending judicial nominations.
"We can all agree that the Senate must act quickly on this and other pending judicial nominations in order to avoid further strain on our federal court system," the senators wrote. "The federal court system is already burdened by an overwhelming caseload, and the existence of these vacancies only adds to a mounting backlog."
I wrote last week about the profound consequences of GOP obstruction of run-of-the-mill judicial appointees: When the GOP stalls the nomination of one well-qualifiednominee with bipartisan support, it’s an annoying political game. When that political game is multiplied by the dozens, it becomes a concerted attempt to keep the judiciary in the hands of the Right Wing.
The more senators who speak out on behalf of individual nominees, the greater the chances of breaking the dangerously low-profile obstruction.
President Obama this afternoon urged the Senate to pass the DISCLOSE Act, which it begins debate on today. The president said the transparency bill was a necessary response to the Supreme Court's decision in Citizens United v. FEC:
Because of the Supreme Court’s decision earlier this year in the Citizens United case, big corporations –- even foreign-controlled ones –- are now allowed to spend unlimited amounts of money on American elections. They can buy millions of dollars worth of TV ads –- and worst of all, they don’t even have to reveal who’s actually paying for the ads. Instead, a group can hide behind a name like “Citizens for a Better Future,” even if a more accurate name would be “Companies for Weaker Oversight.” These shadow groups are already forming and building war chests of tens of millions of dollars to influence the fall elections.
He also had harsh words for the Senate Republican leadership, who have been working against the passage of DISCLOSE:
At a time of such challenge for America, we can't afford these political games. Millions of Americans are struggling to get by, and their voices shouldn’t be drowned out by millions of dollars in secret special interest adverting. The American people's voices should be heard. A vote to oppose these reforms is nothing less than a vote to allow a corporate and special interest takeover of our elections.
The DISCLOSE Act would requiring prompt and full disclosure of corporate campaign expenditures and prevent campaign spending by government contractors, TARP fund recipients, and foreign-controlled corporate subsidiaries.
Earlier today, PFAW executive vice president Marge Baker called DISCLOSE “a necessary and urgent step” towards dampening the effects of the Supreme Court’s decision in Citizens United v. FEC, which allowed corporations to spend unlimited amounts of money to influence elections.
Last week, we were treated to an appalling spectacle in which conservative activist-journalist Andrew Breitbart launched a racially-charged attack against USDA employee Shirley Sherrod, creating a media storm and getting her fired from her job before anyone noticed that his smear was a calculated lie. Breitbart’s ploy confirmed once again his place on the extremist, reactionary, and not altogether honest end of the Right.
Maybe it would be too much to ask for the Republican establishment to repudiate (or even refudiate) Breitbart, since they stand to gain politically from his smear campaigns….but you’d think they’d be savvy enough not to publically embrace him.
You would be wrong.
Talking Points Memo got its hands on an invitation to a fundraiser RNC chairman Michael Steele is holding next month, at which Breitbart will be the guest of honor. Also attending will be California Reps. Wally Herger and Dana Rohrabacher, and Nevada gubernatorial candidate Brian Sandoval.
Sarah Palin treated us more than once this month to extremism and intolerance astounding from a leader of a mainstream political party. It’s more than a little disturbing that the party itself is so eager to join her short-sighted embrace of fear tactics and baseless smears.
When we commissioned a poll to gauge what Americans thought about the Supreme Court’s decision in Citizens United v. FEC, we expected to find strong opposition to the idea of unlimited corporate influence in elections. But even we were stunned by how strong that opposition was. 85% of those surveyed disagreed with the Supreme Court’s decision to give corporations unlimited power to spend in elections, and 74% supported a Constitutional Amendment to reverse it.
Today, in a packed Netroots Nation panel organized by People For, activists and elected officials gave their loud and clear endorsement of a Constitutional Amendment to undo Citizens United and return elections to voters.
The audience responded with a standing ovation when panelist Rep. Donna Edwards declared her support for an amendment saying, “Let’s not let anything undo our power over our elections.”
Edwards spoke about the pressure members of Congress face from the health care and energy lobbies, and other powerful interests. “We cannot afford in this country to have elected officials afraid to stand up to that,” she said.
Corporate interests, Edwards said, “are not just trying to influence the process, they want to own the process.”
In Congress, Rep. Alan Grayson added, a corporate lobbyist “can walk into your and office, say ‘I have $5 million, and I can spend it for you or against you.’…this really is a threat to our democracy.”
All of the panelists, including Public Citizen’s Robert Weissman, Lisa Graves of the Center for Media and Democracy, and People For’s Marge Baker, agreed that passing a Constitutional Amendment wouldn’t be easy, but is necessary.
Baker called the Citizens United decision “radical, dangerous, and pernicious,” and emphasized the opportunity it creates for progressives to reclaim the debate over the courts as we work to reverse it.
“Citizens United is one of the all time worst Supreme Court decisions in the history of the United States,” Weissman said, “It’s certain that it’s going to be overturned. The question is, are we going to overturn it in the next 4-5 years, or wait 50 years.”
Graves added that Americans have managed to amend the Constitution throughout our history. “They did it with the Pony Express,” she said, “and we have Web 2.0”
If there’s one theme that’s prevalent here at Netroots Nation, it’s that elections matter—but what you do after elections matters more.
In a great panel discussion this morning, six judiciary-watchers discussed why the courts should matter to progressives, and why it’s dangerous when they don’t.
Pam Karlan, a professor at Stanford Law school who is frequently mentioned as a potential Supreme Court nominee herself, put it this way: “However much progressive legislation we get from Congress, unless it gets enforced every day by district courts, it’s just words on paper.”
Republicans have successfully made the courts an issue for their base, and are trying to work it to their advantage now that they’ve lost power in Congress and the White House. The Philadelphia Inquirer reported earlier this month that nearly 40% of federal judges currently serving were appointed by George W. Bush, whose habit of recruiting from the conservative Federalist Society led to an intentional right-ward drift on courts across the country.
In their effort to keep the courts on the Right, Republicans are taking full advantage of their well-practiced obstruction skills.
Nan Aron, president of Alliance For Justice described the Republican game plan to keep the courts: “Hold seats open until a Republican president comes in and he’ll fill them in a New York minute.”
Which is exactly what Senate Minority Leader Mitch McConnell is trying to do as he repeatedlyrefuses to hold votes on confirming President Obama’s judicial nominees. He’s making a deliberate effort to stall all Senate business, but also a calculated plan to keep seats on the federal bench empty for as long as possible with the hope that they won’t be filled by progressives.
What courts do every day—from the Supreme Court down—matters to ordinary people. Indeed, courts are central to our ability to hold corporations and other special interests accountable for harmful behavior. Judicial appointments are essential to securing corporate accountability for environmental safety (just look at the Fifth Circuit, where the judges making important decisions about oil drilling regulation are closely connected to the oil industry); they’re essential to holding businesses accountable for how they treat workers (see Rent-a-Center v. Jackson); and, of course, they’re a critical part of ensuring our civil rights.
Dahlia Lithwick, who covers the Supreme Court for Slate, pointed out that “conservatives have been laser-focused on the court,” while progressives don’t always connect the issues we care about with the courts that ultimately decide their fate.
It's time to change that.
UPDATE: You can watch the full discussion in the video above.
After helping Elena Kagan sail through the Judiciary Committee, Chairman Leahy isn’t content resting on his laurels. Yesterday the Chairman censured his Republican colleagues for their obstructionism on lower profile but just as vital judicial nominations. When Republicans foiled his attempt to schedule discussion on 4th Circuit nominee Jane Stranch of Tenessee, who enjoys the bipartisan support of her home state Senators, Chairman Leahy called them out:
Senate Republicans have further ratcheted up the obstruction and partisanship that have regrettably become commonplace this Congress with regard to judicial nominees. We asked merely for a time agreement to debate and vote on the nomination. I did not foreclose any Republican Senator from voting against the nominee or speaking against the nominee but simply wanted a standard agreement in order to allow the majority leader to schedule the debate and get to a vote. This is for a nomination reported favorably by the Judiciary Committee over eight months ago with bipartisan support. Yet the Republican leader objected and blocked our consideration.
For anyone who still thinks that both parties engage in this kind of obstructionism when in the minority, Senator Leahy came prepared with statistics:
No one should be confused: the current obstruction and stalling by Senate Republicans is unprecedented. There is no systematic counterpart by Senate Democrats. In fact, during the first 2 years of the Bush administration, the 100 judges confirmed were considered by the Democratically controlled Senate an average of 25 days from being reported by the Judiciary Committee. The average time for confirmed Federal circuit court nominees was 26 days. The average time for the 36 Federal circuit and district and circuit court judges confirmed since President Obama took office is 82 days and the average time for Federal circuit nominees is 126 days. So when Republicans say that we are moving faster than we did during the first 2 years of the Bush administration they are wrong. It was not until the summer of 2001 that the Senate majority shifted to Democrats, but as soon as it did, we proceeded on the judicial nominations of President Bush, a Republican President. Indeed, by this date during the second year of the Bush administration, the Senate had confirmed 58 of his judicial nominations and we were on the way to confirming 100 by the end of the year. By contrast, Republican obstruction of President Obama's judicial nominees has meant that only 36 of his judicial nominees have been confirmed. We have fallen dramatically behind the pace set for consideration of President Bush's nominees.
…Indeed, when President Bush was in the White House, Senate Republicans took the position that it was unconstitutional and wholly inappropriate not to vote on nominees approved by the Senate Judiciary Committee. With a Democratic President, they have reverted to the secret holds that resulted in pocket filibusters of more than 60 nominees during the Clinton years. Last year, Senate Republicans successfully stalled all but a dozen Federal circuit and district court nominees. That was the lowest total number of judges confirmed in more than 50 years. They have continued that practice despite the fact that judicial vacancies continue to hover around 100, with more than 40 declared judicial emergencies.
As Chairman Leahy emphasized, these obstructionist tactics have rarely come with explanations. For example, Judge James Wynn, who was nominated first by President Clinton and then by President Obama and would become the first black Justice on the 4th Circuit, has been on anonymous hold for six months with no reason given.
Our judicial system can’t function properly without qualified judges on the bench. But Senate Republicans are leaving dozens of judicial vacancies open for purely political reasons. Good for Chairman Leahy for speaking out on this.
We’ve commented before on the oil ties of Judge Martin Feldman, the Reagan-appointed federal judge who struck down President Obama’s moratorium on deepwater drilling in the Gulf of Mexico. Now Alliance for Justice has issued a full report on his financial relationship with the energy sector and his refusal to recuse himself from the case. The results are damning. In 2008, for example, Judge Feldman reported energy-related financial holdings valued between $15,000 and $545,000, with a realized income of between $27,000 and $100,500. And yet, despite a statute that specifically requires recusal when a Justice has even a slight financial interest in a case, Judge Feldman did not step aside in the moratorium case. As Nan Aron, the President of Alliance for Justice, said:
Even the most cursory look at his personal financial holdings would lead any reasonable person to say he can't possibly hear this case and stay within the formal rules of recusal, to say nothing of common-sense notions of bias.
Not only does Judge Feldman stand to make a profit from deciding on big oil’s behalf. He also, like conservative-appointed justices across the country, seems eager to impose a pro-corporate ideology on our legal system. It’s judicial activism like this that makes it so crucial to ensure that judicial appointments are part of the conversation during senatorial and presidential elections.
One of the greatest of many great parts about the end of George W. Bush’s presidency a year and a half ago was, I thought, that we wouldn’t have to spend our lives worrying about what Karl Rove was up to. How wrong I was.
A new political operation conceived by Republican operatives Karl Rove and Ed Gillespie formed a spinoff group last month that - thanks in part to its ability to promise donors anonymity - has brought in more money in its first month than the parent organization has raised since it started in March.
The new group, called American Crossroads GPS, has been telling donors their contributions would be used to dig up dirt on Congressional Democrats’ “expense account abuses” and to frame the BP oil spill as “Obama’s Katrina.”
… A veteran GOP operative familiar with the group’s fundraising activities said the spin-off was formed largely because donors were reluctant to see their names publicly associated with giving to a 527 group, least of all one associated with Rove, who Democrats still revile for his role in running former President George W. Bush’s political operation.
This kind of shadowy politicking is exactly why we so urgently need measures like the DISCLOSE Act, which would require those who are attempting to influence elections through conduits such as Rove’s group to reveal their contributions. Even more importantly, we need a constitutional amendment to ensure the continuing ability of Congress and the states to regulate in this nefarious arena That’s why we’ve joined with Public Citizen in a campaign to get all candidates for federal office to pledge to work towards amending the constitution.
Although Elena Kagan’s nomination moved out of committee yesterday, almost every Republican committee member voted against her, and most Senate Republicans are expected to follow suite. Why? As an editorial in the New York Times pointed out , Republican opposition to the broad interpretation of the commerce clause in recent decades may partly explain their refusal to support Kagan:
[D]ozens of Senate Republicans are ready to vote against [Kagan], and many are citing her interpretation of the commerce clause of the Constitution, the one that says Congress has the power to regulate commerce among the states. At her confirmation hearings, Ms. Kagan refused to take the Republican bait and agree to suggest limits on that clause’s meaning. This infuriated the conservatives on the Senate Judiciary Committee because it has been that clause, more than any other, that has been at the heart of the expansion of government power since the New Deal.
The clause was the legal basis for any number of statutes of enormous benefit to society. It is why we have the Clean Air Act. The Clean Water Act. The Endangered Species Act. The Fair Labor Standards Act, setting a minimum wage and limiting child labor. The Civil Rights Act of 1964, outlawing segregation in the workplace and in public accommodations. In cases like these, the Supreme Court has said Congress can regulate activities that have a “substantial effect” on interstate commerce, even if they are not directly business-related.
…Make no mistake that such a vote is simply about her, or about President Obama. A vote against the commerce clause is a vote against some of the best things that government has done for the better part of a century, and some of the best things that lie ahead.
In voting against Kagan’s anticipated interpretation of the commerce clause, the “Party of No” isn’t just opposing the confirmation of extremely qualified Supreme Court Justice; they’re also opposing the government fulfilling its responsibility to protect clean air and water, fair labor standards, and civil rights for all.
Yesterday the Judiciary Committee voted to forward Elena Kagan’s Supreme Court nomination to the full Senate. Here’s PFAW President Michael B. Keegan’s statement:
Today’s vote is a step towards achieving a Supreme Court that understands the way the law affects individual Americans. In her hearings, Solicitor General Kagan made clear that, unlike the current Court, she understands that corporate interests shouldn’t be allowed to run rampant over the rights of individual Americans.
It’s frankly puzzling that the GOP seems dead set on opposing that principle. Throughout much of the hearings, Republican senators lavished praise on Citizens United v. FEC, a decision that gave corporations unchecked rights to buy elections and which most Americans abhor. Given the national outrage at companies like BP and Goldman Sachs, it’s surprising that the GOP would expend so much breath pining for a Supreme Court Justice who would give even greater deference to corporations while slamming the door on individual Americans fighting for their rights.
Apparently, the ‘Party of No’ can’t stop from saying ‘Yes’ to corporate interests who want to get their way in the Supreme Court.
Fortunately for the country, the GOP has been unable to block the confirmation of this supremely qualified nominee. But as we’ve noted, their largely under-the-radar obstructionism on lower priority nominations is still going strong.
Today, People For the American Way and Public Citizen launched a new campaign to get the ball rolling on a Constitutional Amendment to kick corporate money out of elections.
In January, the Supreme Court overturned a policy that was more than a century-old to allow corporations to spend millions of dollars from their treasuries to influence elections. To get to that decision, in the case of Citizens United v. FEC, the Court determined that corporations have the same free speech rights as individuals.
This reasoning, and the conclusion it led to, have been soundly rejected by Americans across the political spectrum. A poll we commissioned last month found that 85% of Americans disagree with the Court’s conclusion that the First Amendment allows corporations to spend whatever they like on elections, and 77% wanted to amend the Constitution to undo it.
What’s more, 74%--including majorities of Democrats, Republicans, and independents-- said they’d be more likely to vote for a candidate who pledged to work for a Constitutional Amendment to undo Citizens United.
We saw this as a clear call to action. So we joined up with Public Citizen to create www.PledgeForDemocracy.org and start making a Constitutional Amendment a reality.
Here’s how it works. We’ve written up a pledge for federal candidates to sign, committing them to work towards a Constitutional Amendment to return our democracy to voters. It reads:
The Supreme Court's flawed decision allowing corporations to spend unlimited amounts to influence election outcomes endangers our democracy and threatens to drown out the voices of individual citizens. I pledge to protect America from unlimited corporate spending on our elections by supporting a Constitutional amendment to overturn the Supreme Court's decision giving corporations the same First Amendment rights as people.
If you support a Constitutional Amendment, contact your representatives and candidates in your area and urge them to sign the pledge. Then get back to us and let us know what they said. We’ll keep track of contacts to candidates and officials, and publicize which candidates sign the pledge and which refuse to sign it.
We know that elections belong to voters…it’s time for elected officials to show they agree.
The PFAW Voters Alliance is cosponsoring an effort by our friends at Blue America PAC to beat Republican Leader John Boehner in his own House district. Because Boehner is an unbelievably avid golfer (he golfed 119 times last year—how is that even possible?) we’ll be putting up a billboard near a golf course in Boehner’s district. And we need your help deciding what it will say.
As you cast your vote, keep in mind these fun facts about the out-of-touch, lobbyist-schmoozing, industry-loving aspiring Speaker of the House:
He said passage of affordable health care for all Americans would be “Armageddon” and would “ruin the country.”
He dismissed Wall Street’s greedy and disastrous practices as “an ant,” saying regulatory reform would be like killing the ant with a nuclear weapon.
He wants a moratorium on new federal regulations of all industries.
On top of all these indicators that Boehner would be simply disastrous in the role of Speaker of the House, if he did achieve that position it would mean several equally extreme right-wing members taking over as chair of key committees – like Joe Barton, who apologized to BP for the government taking actions to hold the company accountable, taking over the Energy and Commerce Committee.
Here are two of the billboards we’ve designed to remind Boehner’s constituents where his--and his party’s--priorities lie:
To see the rest of the options and cast your vote, click here.