Ending months of speculation, several news outlets reported last night Supreme Court Justice David Souter is planning to retire at the end of the term, after 19 years on the bench. People For the American Way released a statement expressing gratitude Justice Souter’s years of service to the Court, and called on President Obama to nominate “someone who can continue his work to defend our personal freedoms and ensure that every person has equal access to justice.”

On the campaign trail, then-Sen. Obama, a former constitutional law professor, told Wolf Blitzer of CNN “I I think that my first criteria is to make sure that these are people who are capable and competent, and that they are interpreting the law. And, 95 percent of the time, the law is so clear, that it's just a matter of applying the law. I'm not somebody who believes in a bunch of judicial lawmaking.” An excerpt from the transcript:

What you're looking for is somebody who is going to apply the law where it's clear. Now, there's going to be those 5 percent of cases or 1 percent of cases where the law isn't clear. And the judge then has to bring in his or her own perspectives, his ethics, his or her moral bearings. …

That's been its historic role. That was its role in Brown vs. Board of Education. I think a judge who is unsympathetic to the fact that, in some cases, we have got to make sure that civil rights are protected, that we have got to make sure that civil liberties are protected, because, oftentimes, there's pressures that are placed on politicians to want to set civil liberties aside, especially at a time when we have had terrorist attacks, making sure that we maintain our separation of powers, so that we don't have a president who is taking over more and more power.

I think those are all criteria by which I would judge whether or not this is a good appointee.

Well put, Mr. President. November’s election results were a mandate to President Obama to appoint judges committed to justice, equality, and opportunity for all Americans.

Soon after the election, People For the American Way Foundation hosted a panel called “Beyond the Sigh of Relief: Justices in the Mold of Marshall and Brennan.” It’s newly relevant, so take a look.
 

Rep. Virginia Foxx (R-NC) claimed on the House Floor yesterday that Matthew Shepard, whom the Hate Crimes bill is named after, was killed "in the commitment of robbery," not because he was gay. Rep. Foxx went on to say, "the hate crimes bill was named for him, but it's, it's really a hoax, that that continues to be used as an excuse for passing these bills."  

Even more reprehensible, she said all of this while directly across from Judy Shepard, the mother of the Matthew Shepard. 

Un-be-lievable.

A quick look at her voting record, and you can see she marches in lockstep with Rush Limbaugh and the far right base of the party. She earned a 100% rating by the Naitonal Right to Life Committee for her pro-life stance; a 0% rating by the Human Right Campaign for her anti-equality votes; and 19% rating by the NAACP for her anti-affirmative-action votes. In September 2005, Foxx was one of 11 members of Congress to vote against the $51 billion aid package to victims of Hurricane Katrina. In July 2006, she joined 32 of her Republican colleagues to vote against the extension of the landmark Voting Rights Act championed by Dr. King.

She earned every bit of Keith Olbermann's designation for her as yesterday's "Worst Person in the World." North Carolinians deserve much better.

Find out the truth about hate crimes here.

Noting the need to clarify a number of questions surrounding the legal advice provided by the Office of Legal Counsel under Jay Bybee’s leadership, Senator Patrick Leahy, Chair of the Senate Judiciary Committee sent a letter today to Bybee inviting him to testify before the committee. In particular, the letter points out press accounts that White House Counsel Alberto Gonzales asked Bybee, who was interested in the seat on the Ninth Circuit Court of Appeals which he now holds, if he would first serve as head of OLC. Leahy offers Bybee the opportunity to “come forward and set the record straight with respect to whether and, if so, how your judicial ambitions related to your participation at OLC.”

Further, noting the contrast between a Washington Post story over the weekend suggesting that Bybee has regrets over the memoranda issued while he headed the Office of Legal Counsel and today’s New York Times story quoting Bybee as saying that he ‘believed at the time, and continue to believe today, that the conclusions were legally correct,’ Leahy offers Bybee the opportunity to clarify what he meant in his public discussion of these issues. Leahy concludes: “There is significant concern about the legal advice provided by OLC while you were in charge, how that advice came to be generated, the considerations that went into it, and the role played by the White House.”

These are excellent questions. The American public deserves to have the answers.

Two August 1, 2002 OLC memos signed by Bybee have been released. One, released in 2004, concludes that to violate U.S. law against torture, conduct must cause pain equivalent to “the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” The second, released earlier this month, authorizes the use of coercive interrogation techniques on Abu Zubaydah, including extended sleep deprivation and waterboarding.

During floor debate on the Hate Crimes House Bill, Rep. Bobby Scott entered into the record the good work of our African American Ministers in Action. He held up our letter in support of the Hate Crimes legislation, and our fact sheet on the bill.

Thanks to Rep. Scott for the shout out, and to the ministers for their hard work on this critical legislation!

Spring 2009 continues to be a historic season of equality. Earlier today, the New Hampshire Senate passed a marriage equality bill. The House passed the bill last month. However, because of a small amendment made by the Senate, the bill has to go back to the House.

According to the Manchester Union Leader:

A bill legalizing same-sex marriage in New Hampshire passed the Senate today on a 13-11 vote.

The bill, amended on the Senate floor, draws a distinction between civil and religious marriage, and says that any two individuals have a right to join together in a civil marriage.

Last week Senate Judiciary Committee chair Sen. Deborah Reynolds, D-Reynolds, opposed the bill and voted with a committee majority that it should be killed. She said voters in her district told her they favor the legislation, and urged the Senate to vote for an amendment that was drawn up Tuesday night.

She said the wording “gives everyone in the state the right to seek a civil marriage … This is a compromise that is respectful to both sides in this debate and meets our shared goals of equality in state laws for all the people of New Hampshire. The people of this sate share the core values of equality for all, tolerance and acceptance regardless of our differences”

In neither the House nor the Senate did the bill pass with anything approaching a veto-proof majority. So what will the governor do once the bill reaches his desk?

It’s not clear how Gov. John Lynch will handle the bill. He has he said thinks the word marriage should be reserved for a traditional heterosexual relationship. He has argued that the state’s civil unions law already protects the rights of gay and lesbian couples.

Nothing requires Lynch to sign the bill into law. He can let it take effect without his signature once it arrives on his desk.

If the governor is watching the polls to see what the electorate wants him to do, he should know that most support marriage equality. According to the Advocate:

The New Hampshire Freedom to Marry Coalition has released a poll showing that 55% of New Hampshire voters support marriage for lesbian and gay couples, while 39% are opposed. ...

The poll also found that 63% of Independent and 34% of Republican voters in New Hampshire support marriage for lesbian and gay couples. Only 32% responded yes to a question asking if they would be “bothered” if same-sex couples could get a marriage license.

This comes one day after marriage equality legislation in Maine won a key joint committee vote. The bill now advances to the full House and Senate, which may vote on it as soon as next week.

The history of America is one of constant improvement, as each generation reaches out to some who have been treated as a threatening “other” and at last recognizes “them” as part of “us.” It’s a beautiful thing.

This morning the Supreme Court heard oral argument in the case of Northwest Austin Municipal Utility District Number One v. Eric Holder, a case involving a small municipal district in Austin, Texas seeking to invalidate a key provision of the Voting Rights Act of 1965 - one of the most important civil rights laws in American history.

With the passage of the Voting Rights Act, Congress finally acted to prevent discriminatory tactics designed to prevent minorities from exercising their fundamental right to vote. Section 5, in particular, is the centerpiece of the Act, and requires certain covered jurisdictions where voting discrimination has been the most flagrant to seek a preclearance from the Justice Department or a three-judge panel of the federal court in DC for any voting related changes. According to the statute, preclearance will be given as long as the proposed change does not have the purpose or the effect of denying or infringing on the right to vote because of one’s race or color.

In this case, the party seeking to invalidate Section 5 is a municipal utility district in Travis County, Texas, that conducts elections to select the members of its board of directors. Because the State of Texas is a covered jurisdiction, the district is subject to the preclearance requirements of Section 5, and sought relief under the Act’s bailout provision in federal court in the days following the reauthorization of the Act in 2006. Alternatively, the utility district sought to invalidate the provision if it could not bailout from its requirements. It failed on both counts in the courts below.

Today’s arguments confirm that Justice Kennedy again holds the deciding vote on whether the Court will weaken or invalidate a provision upheld by the very same Court four times in the past.

To those who argue that Section 5 is no longer needed because racial discrimination no longer exists, as evidenced by the election of the country’s first African American president, look at the facts. Because of Section 5’s sunset provisions, Congress was required to re-examine whether the statute is needed and last conducted an examination of this type in 2006. The House and Senate Judiciary Committees held a combined 21 hearings over 10 months and received testimony from over 90 witnesses, including state and federal officials, experts and private citizens. And although they concluded that significant progress had been made, they recognized that “[d]iscrimination today is more subtle than the visible methods used in 1965” and concluded that discrimination continues to result in “a diminishing of the minority community’s ability to fully participate in the electoral process and to elect their preferred candidates of choice.” Congress voted 390-33 in the House and 98-0 in the Senate that, among other things, Section 5 was still necessary.

We hope that Justice Kennedy will remember the extensive record finding Congress performed in 2006 and remember his words earlier this year when he wrote in Bartlett v. Strickland, “Still, racial discrimination and racially polarized voting are not ancient history. Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions. . .”

Deborah Liu is General Counsel to People For the American Way, which is a defendant-intervenor in the case.

Great news on the accountability front: Today, a unanimous three-judge panel of the Ninth Circuit Court of Appeals gave the thumbs-down to the blanket invocation of the pernicious "state secrets" doctrine.

According to the San Francisco Chronicle:

A federal appeals court rebuffed the Obama administration's assertion of secrecy today and reinstated a lawsuit by five men who say a Bay Area subsidiary of Boeing Co. helped the CIA fly them to foreign countries to be tortured.

A lawyer from President Obama's Justice Department argued to the court in February that the issues surrounding the "extraordinary rendition" program, including government-sanctioned interrogation methods and the company's alleged connection to the CIA, were so sensitive that the very existence of the suit threatened national security.

The Bush administration had taken the same position and persuaded a federal judge in San Jose to dismiss the suit.

In today's ruling, however, the Ninth U.S. Circuit Court of Appeals in San Francisco said the government and the company could take steps to protect national secrets as the case proceeded. The suit should be dismissed only if secret information is essential for the plaintiffs to prove their case or for the Bay Area company to defend itself, the court said.

"According to the government's theory, the judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law," Judge Michael Hawkins said in the 3-0 ruling.

Citing last year’s Boumediene Supreme Court case, the court writes that

while security depends upon a sophisticated intelligence apparatus, it subsists, too, in fidelity to freedom’s first principles [including] freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. [internal quotations omitted]

So now the lawsuit against the Boeing subsidiary can proceed. Perhaps it will see some light shed on the Bush Administration's frightening "extraordinary renditions" program.

In a nation governed by the rule of law, we cannot allow the government to shield its illegal actions from judicial scrutiny simply by claiming -- with no supporting evidence required -- that allowing a lawsuit will threaten national security. This "state secrets" doctrine was one of the many ways the Bush Administration evaded responsibility for its own lawbreaking, slammed the courthouse doors on victims of injustice, and arrogated extra-constitutional power to the president. Sadly, in the Ninth Circuit case, the Obama Justice Department took the same approach to this as did Bush's.

Those who knowingly sent people abroad to be tortured by foreign governments, just like those who ordered and enabled torture American style, must face the consequences. Otherwise, America will have become a far different nation than the one that I have always loved.

People For the American Way co-hosted a press call on 4/27 concerning the nomination of Dawn Johnsen to head the Office of Legal Counsel.

We were joined by Walter Dellinger, Solicitor General and head of the Office of Legal Counsel under President Clinton, Douglas Kmiec, head of the Office of Legal Counsel for Presidents Reagan and George H.W. Bush, and Aviva Orenstein, an Indiana University law professor and longtime colleague of Dawn Johnsen.

All three vouched for Johnsen's legal acumen and commitment to the rule of law and expressed disbelief that Senate Republicans were attempting to block her nomination.

You can listen here:

 
The Washington Post reported on the call -- "Scholars Urge Confirmation of Johnsen to OLC" -- along with progressive bloggers like Christy Hardin Smith and Armando LLorens who have reported extensively on the Johnsen nomination: "The War Against Dawn Johnsen" and "Kmiec Calls Out “Rank Politics” Against Dawn Johnsen’s OLC Nod."

The call was co-hosted by the Alliance for Justice, National Women's Law Center, and NARAL Pro-Choice America.

Republicans are trying to paint OLC nominee Dawn Johnsen as "out of the mainstream." Rachel Maddow turned the tables on them last night in an interview with Salon's Dahlia Lithwick. Lithwick noted that Republicans are creating a storm — threatening to filibuster — because of two things: First, that Johnsen was ahead of her time in pointing out what everyone now knows about how bad the OLC memos were, and second, that she's pro-choice... hardly positions that place her "out of the mainstream" since, unfortunately for Republicans, those views are shared by most Americans.

A bit from the interview:

Lithwick: This is a dry run for future confirmation wars. ... She's been very vocally critical of the work that happened at the OLC in the Bush administration. ...

I think this has nothing really to do with Dawn Johnsen It's sort of a little warm up, a practice run for when they REALLY go after someone in a confirmation hearing for the courts. ...

Maddow: At Johnsen's confirmation hearing there was one comment from Republican Senator Jeff Sessions that stuck with me because he accused her of, and I'm quoting here, "blogging, advocating, and speeching for the opposite sides." Essentially he's saying, "She's got a side, she has known positions on things." Does it make any reasonable sense that would be an objection to an OLC candidate?

Lithwick: Well, it's doubly paradoxical if you think about it, because the thing she was blogging and "speeching" about was torture! It was how bad OLC was and how sloppy their work was. So it puts the Republicans in this awful position of having to say "Because the work they did in the Bush OLC was terrific. How dare they call it into question?" ... This is an issue on which she was very clear — before the rest of us were clear — that the memos were bad, the lawyering was sloppy, and that torture was torture.

And video:

There was also a segment at the beginning of the show about impeaching Jay Bybee that was good. Watch it here.

Senator Inhofe announced earlier this week that he would filibuster the nomination of David Hamilton for a seat on the Seventh Circuit Court of Appeals. And on the Senate floor he elaborated—he said this was because, in a case involving a ban on the Indiana House of Representatives’ use of opening prayers to advance a particular religion, Hamilton placed limits on prayers that used Christ’s name, but, according to Inhofe, said that invoking the name of “Allah” would be permissible.

There are two major problems with Senator Inhofe’s announcement.

First is the senator’s statement, back in 2005, that filibusters of judicial nominees were contrary to the Constitution. Of filibusters of judicial nominations he said: “I don’t think it should be used where it is contrary to the Constitution.” If you watched Rachel Maddow last night you go this point loud and clear. You can’t have it both ways – the Constitution didn’t change between 2005 and 2009; what changed is the President making the nominations.

The second is the Senator’s gross misreading of Hamilton’s opinion. As noted in an earlier post, Hamilton never ruled that prayers to Christ were impermissible, while Muslim prayers were permissible. What he said was that any prayers that advanced a particular religion were impermissible and that on the record before the court, the official prayers being offered in the Indiana House “repeatedly and consistently” advanced the Christian belief in the divinity of Jesus, but that the single instance of a Muslim imam offering a prayer was not distinctly Muslim in its content.

In a ruling on a post judgment motion, Hamilton did say that prayers to “Allah” would be permissible, but what Senator Inhofe’s statement leaves out is both the context and the full content of the statement. Hamilton was asked in the post judgment motion to rule on whether a prayer can be addressed to “Allah.” Explaining that this is the Arabic word for “God” used in translations of Jewish and Christian scriptures, Hamilton ruled this permissible. He went on to say: “If those offering prayers in the Indiana House of Representatives choose to use the Arabic Allah, the Spanish Dios, the German Gott, the French Dieu, the Swedish Gud, the Greek Theos, the Hebrew Elohim, the Italian Dio, or any other language’s terms in addressing the God who is the focus of the non-sectarian prayers contemplated in Marsh v. Chambers, the court sees little risk that the choice of language would advance a particular religion or disparage others.”

If Senator Inhofe would carefully review the record, either Judge Hamilton’s or his own, he’d see that his pledge to filibuster this nomination is a very poor idea.