Barney Frank: This Year’s Midterm Elections Define Our Courts

In an op-ed printed in the Portland Press Herald this weekend, retired congressman Barney Frank offers a sharp critique of the far right Supreme Court under John Roberts. Explicitly noting the importance of the Court in defining law that affects all citizens, Frank makes clear not only that courts matter, but everyday citizens have a hand in how these courts are shaped.

Reviewing the impact of recent Supreme Court decisions — from overturning “more than 100 years of federal and state efforts to regulate the role of money in campaigns” to declaring that corporations have the right to religious freedom under RFRA—Frank states that “the court has ended this term with a barrage against laws it does not like” (emphasis added).

He continues,

…The Supreme Court is now strongly inclined to impose conservative ideology via Constitutional interpretation on a broad range of public policy. It is true that Kennedy and to some extent Roberts occasionally deviate from this, but Justice Samuel Alito has surpassed even Justices Antonin Scalia and Clarence Thomas in his ideological purity.

The relevance of this to the next two elections is very clear. Four of the sitting justices are in their late 70s or older. This means that there is a strong possibility that President Obama will have a chance to appoint another justice before his term expires, but his ability to do so will be determined not simply by the health of the justices in question, but by the composition of the U.S. Senate. The increasing partisanship in the Senate, the continued virulent influence of the tea party and recent history strongly suggest that even if a vacancy occurs, Obama will be prevented from filling it (emphasis added).

Frank refers to the unceasing Republican obstructionism and argues courts are critical for defining laws that affect Americans on a daily basis, highlighting the importance of this year’s midterm elections. As he concludes in this piece,

This makes it highly likely that among the issues that will be determined in the next senatorial and presidential election will be the ideological makeup of the Supreme Court. Voters should act accordingly.


The Election Gives Obama a Mandate on the Supreme Court

The importance of the Supreme Court as an election issue – which was clearly predicted by pre-election polls – made itself clear in President Obama's overwhelming victory last night. Americans recognized that Mitt Romney would have driven the Court even further to the right, and they cast their votes accordingly.

Last month, People For the American Way, the Alliance For Justice Action Campaign, and the Leadership Conference on Civil and Human Rights released a poll demonstrating that the Supreme Court was not only an important issue for voters, it was one that significantly favored President Obama over Mitt Romney.

A remarkable 63 percent of voters said the issue of who will serve on the Supreme Court was an important consideration in their vote for president. By a five-point margin, voters said they trusted President Obama over Mitt Romney to nominate Supreme Court justices. President Obama had an 18-point advantage among swing voters overall and a 26-point advantage women swing voters.

The survey also explained why: What most concerned voters – a full 54 percent – was that Romney would nominate justices who would consistently favor corporations over ordinary Americans. After all, Romney very openly said that he would nominate Justices like John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito – the solid backbone of the current Corporate Court. And every corporate-funded hit job TV viewers were assaulted with just served as reminder of their handiwork and what more Justices like them would do to our country.

So it was no surprise that President Obama, Vice-President Biden, and Senators-elect Elizabeth Warren (Massachusetts), Chris Murphy (Connecticut), and Mazie Hirono (Hawaii) reminded voters of the importance of the Court during the campaign.

Conservatives will try to say the election tells us nothing about the Court. Like Karl Rove on Fox News when the election was called, they will try to wish the hard numbers away, but they can't. Yesterday, the American people repudiated the conservative vision of the Supreme Court, giving President Obama a clear mandate to nominate strong progressives to restore the nation's highest court as a place where Americans can be confident in Equal Justice Under the Law.


Endorsements Cite Supreme Court

As we await the results of today's elections, it is important to remember that the next president will likely be able to nominate multiple Supreme Court Justices which could cause dramatic shifts in the ideological make-up of the Court. Do Americans want a more diverse Supreme Court with justices committed to a balanced approach that treats all Americans fairly or do they want justices who, like the current far right majority on the Court, routinely favor large powerful corporate interests over the rights of individuals? The implications are huge.

A review of a large number of editorial boards that have weighed in on this subject are evidence that Americans understand the magnitude of what is at stake here.  That being said, a giant number of regional and student newspapers as well as a significant number of national newspapers have endorsed President Obama for reelection. And an overwhelming majority of  these endorsements cite the Supreme Court as an enormous contributing factor to keeping President Obama in office due to very real fears that the ever-flip-flopping Mitt Romney will be forced by his radical Republican electorate and team to nominate justices who intend to overturn Roe v. Wade, expand special interests' power like in the the Citizens United v. Federal Election Commission ruling, and guarantee an extremist conservative majority.

From the Washington Post to the New York Times to the Economist, publications of every political stripe cite the concerns over what a Romney Court would do to women, the LGBT community, immigrants, and the rights of the common American as reason to deny Romney the presidency.

Be sure to check out PFAW’s new report on the Court’s importance.


Importance of the Supreme Court in the Upcoming Election

As Election Day approaches, voters need to keep in mind one of the most important powers given to a president: the ability to nominate Supreme Court Justices. Judicial nominations take even more precedence in this election due to the fact that four current justices are in their seventies, making it likely that the next president will have the opportunity to nominate at least one or two justices, putting major progressive reforms along with a list of other issues at risk with the possibility of even one additional conservative justice to the Court. The stakes are highest for progressives because Breyer (74) and Ginsburg (79, the most likely to retire) tend to lean liberal in their decisions and a conservative-leaning replacement for either would give disproportional amounts of power to the conservative wing of the Court.

Romney has pledged to nominate individuals that align with extreme right-wing justices like Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts. Under the guise of securing “greater protections for economic liberty and greater scrutiny for regulation” and “judicial modesty,” a more conservative Court would ultimately limit the expansion of gay rights, further extend corporate influence in politics, attack women’s reproductive rights, and threaten the recently upheld healthcare legislation.

To understand the implications of a Supreme Court under Romney, one only needs to look at Romney’s choice of chairman of his Judicial Advisory Committee: Robert Bork, a right-wing extremist and advocator for Constitutional “originalism”, a radically conservative way to interpret the Constitution. Bork opposed the Civil Rights Act of 1964 and Roe v. Wade, and in 2007, Romney declared, “I wish he were already on the Supreme Court. He’s the kind of brilliant conservative mind that this court could use.” Clearly, Romney intends to shift the Court’s further to the right with nominations similar to Bork.

President Obama has been quite vocal regarding his opponent’s intentions with vacancies on the Supreme Court. In an interview with Rolling Stone, Obama made it clear that a Romney/Ryan administration would be in a position to overturn Roe v. Wade through the Supreme Court. In a recent appearance on the Tonight Show, President Obama again highlighted the importance of having a diverse Court especially when it came to Roe v. Wade. The President also recently emphasized the importance of the Supreme Court and marriage equality in the coming years during an interview with MTV, expressing opposition to the Defense of Marriage Act and hoping for its eventual overturning.

A more conservative Supreme Court would lead to a radical reinterpretation of the Constitution and a dramatic attack on equal opportunity and rights. If Romney is elected, this sort of Court would almost certainly become a reality.

Click for PFAW’s new report on the Court’s importance.


On Every Issue, Vote the Court

Add the Washington Post's Jonathan Bernstein to the large list of pundits recognizing the critical importance of the Supreme Court as an election issue. He writes:

But as important as [the survival of the Affordable Care Act] is, I don't think it's the No. 1 thing at stake.

That thing is the Supreme Court.

It's likely that the next president will replace at least one justice. If Mitt Romney wins next month and his party benefits from an improved economy by 2016 (not a certain scenario, but one that wouldn't be surprising), then we're talking about eight years and a very good chance of putting four justices on the bench.

Mitt Romney has promised to fill the Supreme Court with extremists like Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts. These four have, time and again, bent the law and confounded logic in order to benefit big corporations. In contrast, President Obama has a track record of nominating thoughtful and moderate Justices like Sonya Sotomayor and Elena Kagan.

Bernstein writes:

On every issue that's at stake in the election, whether it's the economy or executive power in national security or climate or yes, health care, a court in which Chief Justice John Roberts is the median voter would be enormously different from one in which, say, Elena Kagan is in the middle.

In an America transformed by a Romney Court, power would flow to the already-powerful, and the middle class would be even more vulnerable and at risk.


Log Cabin Republicans Endorse Mitt Romney

To no one's surprise, the Log Cabin Republicans have endorsed Mitt Romney. The endorsement is as pitiful as it is predictable.

Romney supports a constitutional amendment prohibiting gays and lesbians from marrying. Romney opposed the end of Don't Ask Don't Tell. He signed the National Organization for Marriage's pledge to defend DOMA, put Washington DC's marriage equality law up to a popular vote, and establish a presidential commission to "investigate harassment of traditional marriage supporters." Romney has promised to nominate Supreme Court Justices like Antonin Scalia and Clarence Thomas, who dissented in the two major gay rights decisions of the past 20 years. And his main advisor on judicial nominations is the infamous Robert Bork, who has compared gay rights to child molestation.

But it's not just LGBT people who should be worried about the prospect of a Romney Court.

The Supreme Court justices Romney promises to nominate would ensure that our nation's highest court continues to routinely bend the law and twist logic in order to favor corporate interests. They would block environmental laws that restrain large corporations from poisoning our air and water. They would severely weaken and in some cases eliminate consumers' right to sue manufacturers of dangerous products. They would make it increasingly difficult for victims of illegal employment discrimination to have their day in court. And, of course, they would continue to game our nation's electoral system to make sure that corporate interests drown out the speech of ordinary Americans, while upholding obstacles designed to prevent those same ordinary Americans from being able to exercise their right to vote.

That's an agenda that's devastating for all Americans, not just gays and lesbians.


More Recognition of the Courts as a Presidential Election Issue

Andrew Cohen has written a terrific article for The Atlantic making clear the critical importance of the federal courts as an issue in the presidential election. His article is particularly addressed to those who are disappointed with both Barack Obama and Mitt Romney:

Which man would you rather have over the next four years nominating (to lifetime jobs) the next 200 federal judges? Isn't that a serious question, the answer to which has little to do with the president's drone program or Mitt Romney's ties to corporate power? Isn't it a legitimate question you still have to ask once you've convinced yourself … that neither candidate has otherwise lived up to expectations?

It's not a wonkish question. From the national voting rights fight on down, you'd have to be in a coma this cycle to be unaware of the vital power that federal judges hold in American life. And not just the justices of the United States Supreme Court, who decide only a tiny fraction of the cases that come before them, but the trial judges and lower appellate judges, who resolve 99.9 percent of the federal cases they hear. Which main candidate do you want to staff these benches over the next four years? Romney or Obama?

At the Supreme Court level, Romney has said he would nominate Justices like Antonin Scalia and Clarence Thomas. Obama has a track record with Sonia Sotomayor and Elena Kagan. On issues relating to civil rights and civil liberties, the rights of individuals vis-à-vis giant corporations, the toxic mix of money and elections, it makes a difference who will be nominating the Supreme Court Justices. As for the lower courts, Republicans are looking forward to placing more right-wing ideologues on the bench, especially on the circuit courts. The DC Circuit is a great example of the damage they can do.

Cohen writes:

If there is one thing I have learned this election season, one thing I've come to realize as I've covered all the voter suppression cases this year, it is that America's legal and cultural and social wars never really end. The rights and benefits, the freedoms and liberties, won in one generation, have to be fought for anew, and re-won, in another. That's why today, in 2012, we are fighting over contraception, and voting rights, and the Clean Water Act. The "long-term coup" James Fallows has written about? Which president's judges are most likely to stymie it?

A vote for president, you see, isn't just a vote that determines the policies and actions of the executive branch. It is a vote for the person who essentially staffs the leaders of another branch of government, the judicial branch, which has (and which has taken since Marbury v. Madison) the constitutional power to strike down the actions of the executive and legislative branches. A vote for president triggers in the winner the right and the ability to select good men and women to serve in high public office long past his tenure in the White House.

No matter what issue you care about, it will be addressed by judges who will be nominated by either Mitt Romney or Barack Obama. For many people, that is the most important reason to cast a vote for Barack Obama.


Debate Exposes Importance of Supreme Court to Working Women

In last night's debate, President Obama effectively laid out the damage to the middle class that a Romney presidency would do, especially to working women. He noted that the first bill he signed was the Lilly Ledbetter Fair Pay Act, which reversed a Supreme Court decision misinterpreting the Civil Rights Act to prevent women like Ledbetter from suing when they learn they'd been discriminated against for years.

Here's the background: After working for the same company for many years, Ledbetter got an anonymous tip that for years on end she was being paid far less than her male colleagues doing the same work, all due to a discriminatory evaluation. She sued, and a jury awarded her back pay, but the five far-right Justices on the Supreme Court ruled that she should have filed her lawsuit within 180 days of the long-ago discriminatory evaluation. Common sense would tell you that every time she got a discriminatory paycheck, it was a new act of discrimination that reset the 180-day clock. The far-right Justices' interpretation of the law was not compatible with common sense, not compatible with the law's purpose of eliminating discrimination, and not compatible with workplace reality: Most employees have no idea what their co-workers earn, so how could they know they are being discriminated against?

No wonder, then, that in 2009 the then-Democratic Congress restored the law's original meaning, and the newly inaugurated President Obama made it the first bill he signed.

As for Mitt Romney – He has bobbed and weaved and done whatever it takes to avoid answering the simple question of whether he would have signed that bill. But he has made crystal-clear that he would nominate Justices just like the far-right ones who gave us the disastrous decision in the Ledbetter case – Justices like Clarence Thomas and Antonin Scalia.

And these are lifetime appointments. The next president's Justices could be on the Court for another 30 years. With as many as three vacancies on the nine-member Court opening up in the next four year, Mitt Romney could do untold damage to working women across America.


Supreme Court to Hear Arizona Voting Rights Case

The Supreme Court announced today that it will hear a critical voting rights case next year. Arizona has appealed a 9th Circuit decision that barred the state from requiring proof of citizenship from those registering to vote via a federally-approved registration form. Current federal law allows voters to register via federal form instead of a state-specific form. Those opting to do so must swear under penalty of perjury that they are citizens. Arizona’s law, which is currently stayed, would require voters using that form to jump over an extra hurdle to register, requiring them to show proof of their citizenship, a provision disproportionately affecting low-income and minority voters.

The AP explains:

The ruling applies only to people who seek to register using the federal mail-in form. Arizona has its own form and an online system to register when renewing a driver's license. The court ruling did not affect proof of citizenship requirements using the state forms.

Arizona officials have said most people use those methods and the state form is what county officials give people to use to register. But voting rights advocates had hoped the 9th Circuit decision would make the federal mail-in card more popular because it's more convenient than mailing in a state form with a photocopy of proof of citizenship.

The mail-in card is particularly useful for voter registration drives, said Robert Kengle of the Lawyers' Committee for Civil Rights Under Law, which is representing Native American and Hispanic groups in the case.

The conservative wing of the Supreme Court has been eager to challenge voting rights laws in recent years. In 2008, a 6-3 majority of the court upheld Indiana’s voter ID law, paving the way for suppressive voter ID measures throughout the country. The Court may also hear a challenge to section 5 of the Voting Rights Act, which requires federal preclearance for voting rights changes in states and counties with a history of discrimination at the ballot box. Successful court challenges to discriminatory voting law changes this year have shown just how essential that provision still is.

While the composition of the Supreme Court is unlikely to change before these cases are heard, they underscore the importance of federal courts in this election. Not only are federal courts the final protection we have against discriminatory voter suppression laws, the makeup of these courts is on the line in the presidential election. Either Mitt Romney or President Obama could pick up to three Supreme Court Justices and dozens of federal court judges in the next term. Romney has promised to appoint Justices like Antonin Scalia and Clarence Thomas, who have both signaled their hostility to voting rights. If he does, and the Court shifts farther to the right, we could see decades of progress for fair and free elections slip away.


Toobin Asks Candidates to 'Take a Stand' on Supreme Court. They Already Have.

On CNN’s website today, legal analyst Jeffrey Toobin laments out how small a role the Supreme Court has played in the presidential election so far. He writes:

With a little more than a month to go, it's not too late to ask the candidates to take a stand on their plans for the court. The president has already had two appointments, and he named Sonia Sotomayor and Elena Kagan. But what does Obama, a former law professor, think about the court? Does he believe in a "living" Constitution, whose meaning evolves over time? Or does he believe, like Justices Scalia and Thomas, that the meaning of the document was fixed when it was ratified, in the 18th century.

By the same token, what kind of justices would Romney appoint? Who are his judicial role models? Romney has praised Chief Justice John Roberts, but is the candidate still a fan even after the chief voted to uphold the ACA?

No one is asking these questions. But there are few more important things to know about our current and future presidents.

Toobin is absolutely right that the candidates’ plans for the Supreme Court deserve a lot more air time than they’re getting. But he’s wrong to suggest that we know nothing about what President Obama and Governor Romney have in mind for the Court.

President Obama has already picked two Supreme Court justices. Both, Sonia Sotomayor and Elena Kagan, have been strong moderates, balancing out the retro extremism of Justices Scalia and Thomas. When female Wal-Mart employees wanted to band together to sue their employer for pay discrimination, Sotomayor and Kagan stood on the side of the women’s rights, while Scalia and Thomas twisted the law to side with the corporation. When Justices Thomas and Scalia ruled that a woman harmed by a generic drug couldn’t sue the drug’s manufacturer in state court, Justices Sotomayor and Kagan stood up for the rights of the consumer.

Mitt Romney obviously hasn’t had a chance to pick a Supreme Court justice yet, but he’s given us a pretty good idea of who he would choose if given the opportunity. On his website, Romney promises to “nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas, and Alito.” After the Supreme Court’s ruling in the health care reform case, Romney announced he had changed his mind about Roberts, who declined to destroy the law while still writing a stunningly retrogressive opinion redefining the Commerce Clause.

And, of course, Romney sent a clear signal to his conservative base when he tapped Robert Bork to advise him on legal and judicial issues. Bork’s record, and what he signals about Romney’s position on the Supreme Court, is chilling:

Romney’s indicated that he would want the Supreme Court to overturn Roe v. Wade. He’s even attacked the premise of Griswold v. Connecticut, the decision that prohibited states from outlawing birth control by establishing a right to privacy.

Yes, the candidates should be made to answer more questions about their plans for the Supreme Court and the lower federal courts. But there’s a lot that we already know.

(For more, check out PFAW’s website