Elena Kagan

Hobby Lobby, Wheaton College, and the Importance of Women Justices

Days after the Supreme Court handed down its damaging 5-4 decision in Burwell v. Hobby Lobby, SCOTUS issued an order that underscored the danger that Hobby Lobby poses for women’s health.

In Wheaton College v. Burwell, SCOTUS temporarily granted relief to Wheaton College, a religious institution that is “categorically” opposed to providing contraceptive services, from the contraception coverage compromise solution that the  Court explicitly endorsed in Hobby Lobby. The order says that Wheaton may be exempt from submitting a form that would inform the government that they object to covering birth control. Wheaton College argued that submitting this form would make it “complicit in the provision of contraceptive coverage.” The temporary order indicates that the Court’s majority may accept this problematic argument.

In what Think Progress called a “blistering dissent” to the order, Justice Sonia Sotomayor — joined by the two other female Justices Elena Kagan and Ruth Bader Ginsburg — sharply criticized the order. Sotomayor wrote in the dissent:

“Those who are bound by our decisions usually believe they can take us at our word. Not so today.”

While this order is temporary until the case may be heard in front of the Court, the female Justices’ strong dissent demonstrates not only the division within the Court, but also the importance of having diversity on our courts. Women on the bench provide a critically important perspective on all cases, but especially those that deal with women’s lives. It is more important than ever, when women’s rights are under assault, that women are more fairly represented at all levels of government.

PFAW Foundation

Alito Leads Latest Attack on Unions

Alito and his conservative colleagues have already made clear their political zeal to harm public sector unions.
PFAW Foundation

Dangers of Supreme Court Prayer Ruling Quickly Become Clear

Sometimes the damage from a bad court decision takes a while to make itself clear. Not so with last week’s U.S. Supreme Court ruling upholding a town’s practice of beginning council meetings with prayers that are overwhelmingly Christian. Conservative political and legal groups called it a win for religious freedom, but it only took a few days to see just how much unnecessary and divisive conflict the Court’s decision could generate in communities across America.

Late last week the mayor of the New Jersey town of Carteret cited the Supreme Court ruling to justify cancelling the use of the borough hall for a Saturday naturalization ceremony.  He was upset that the Immigration and Naturalization Service refused to allow the ceremony to begin with prayer. The INS says its rules are meant to ensure that naturalization ceremonies are "conducted in a meaningful manner which is welcoming and inclusive and excludes political, commercial and religious statements." But Mayor Daniel Reiman said the INS could "host its godless ceremony someplace else." (It was held in Newark.)

What a sad object lesson for those aspiring American citizens and their friends and families. Who knows how many different faiths were represented among them? It shouldn’t matter, because one of the most precious benefits of being an American is that your rights and standing as a citizen do not depend on your holding any particular set of religious beliefs.

But don’t tell that to Al Bedrosian, a member of the Roanoke County Board of Supervisors in Virginia. Last week after the Supreme Court ruling, Bedrosian declared that prayers to open board meetings should be given only by Christians. It is shameful that Bedrosian holds public office in Virginia, home of James Madison and Thomas Jefferson and the birthplace of the First Amendment. Bedrosian argued publicly several years ago that Christians should “rid ourselves of this notion of freedom of religion in America.” He said Christians “are being fed lies that a Christian nation needs to be open to other religions” and called it one of the “greatest moments in US Senate history” when a group of Christians disrupted a Hindu religious leader who was giving an opening prayer.

Both Reiman and Bedrosian are misinterpreting the Court’s decision. But these episodes bring even greater clarity to a reality to which the conservative majority on the Supreme Court demonstrated “blindness” – in the words of dissenting Justice Elena Kagan. That is the exclusionary and divisive reality – as opposed to the theory – of government bodies opening their meetings with sectarian prayer.

The case decided by the Supreme Court came concerned the upstate New York town of Greece.  For years, the town council has been inviting local clergy to open its meetings. Those clergy have been overwhelmingly Christian, and their prayers were sometimes highly sectarian, invoking “the saving sacrifice of Jesus Christ on the cross” or “the plan of redemption that is fulfilled in Jesus Christ.” These were not, as dissenting Justice Elena Kagan noted, ceremonial invocations like the “God save the United States and this honorable Court,” which begins Supreme Court sessions.

The town’s prayer policy was challenged by two citizens (one Jew and one atheist) who felt coerced by the invitations to Christian prayer, and who felt as if they were being made outsiders in their own town based on their religious beliefs. They argued that the practice violated the Establishment Clause of the First Amendment, which has been interpreted as preventing the government from favoring religion in general or any religion in particular.

Some people, particularly those in the religious majority, have a hard time seeing why such prayer is a big deal. As Paul Waldman writes for the Washington Post, “the ruling is about the privilege of the majority, the privilege to define your own beliefs, traditions, and practices as simply the water in which we all swim. If you’re in that majority, you tend to be shocked when anyone even questions whether those practices ought to be imposed on everyone and sponsored by the state.”

But imagine, as Kagan did, a Muslim who has come before the city council seeking a zoning variance to build an addition on her home. When she is asked to join in prayer celebrating the divinity of Jesus, she has the option of not participating, or leaving the room. Either option identifies her as somehow different from her neighbors and from the councilmembers who will decide the fate of her request.  A federal appeals court had ruled that the town’s practice was unconstitutional because, even if town officials had no bad intent, the consequence of the nearly uninterrupted parade of Christian prayers was to signal that Christianity was favored, and to make unequal citizens of people of other faiths or no faith.

Unfortunately, five Supreme Court justices disagreed, saying even an overwhelmingly Christian and sectarian prayer practice is OK unless there is a pattern of prayers denigrating other faiths or proselytizing or unless there is evidence that people are being legally coerced or punished for not participating. The Court has given a green light to “Christian Nation” advocates like Al Bedrosian to demand that their city council or county commission allow their official meetings to be regularly opened with explicitly Christian prayers.  Some Religious Right leaders have said that’s exactly what they’re going to do.

Right now, practices vary. Some government bodies don’t bother with prayer; others invite clergy to open meetings, with guidelines that prayers be respectful or nonsectarian. But even that nod toward pluralism is at risk: Jordan Sekulow of the American Center for Law and Justice said this ruling means government bodies can no longer make a distinction between nonsectarian prayer and “praying in Jesus’ name” and he told the Christian Broadcasting Network, “that will have an impact on a number of cases.”

It’s worth noting that some progressive Christians agree that “nonsectarian prayer” is a kind of oxymoron. But, says Washington Monthly blogger Ed Kilgore, that is not a reason to push for sectarian prayer; it is instead a reason to do away with legislative prayer altogether. He writes that the effort to push more prayer in official settings is “offensive to those who pray as much as to those who don’t.” The pro-church-state-separation Baptist Joint Committee had filed a brief in the case stating that “prayer is an expression of voluntary religious devotion, not the business of government.”

That brings us to a crucial distinction between what is constitutional and what is wise, particularly in a country that is increasingly diverse, with a growing number of people who claim no religious affiliation. As noted in People For the American Way Foundation’s Twelve Rules for Mixing Religion and Politics, “Some things that are legally permissible may still be damaging to religious tolerance and civic discourse, and should be discouraged.”

The Supreme Court did not rule that legislative bodies have to begin their meetings with prayer; it ruled that the Constitution allows them to. In spite of Justice Anthony Kennedy’s portrayal of legislative prayer as a unifying force, it seems likely that an aggressive push for more sectarian prayer to open official meetings will be anything but unifying. Elected officials should think twice before going down that road.

Russell Moore, president of the Ethics & Religious Liberty Commission of the Southern Baptist Convention, said he prays that the Court is showing a way toward “a right kind of free marketplace of faith expression in American life.” But Moore is wrong: we already have a free marketplace of faith expression in America. The First Amendment has fostered a vibrant, flourishing, peaceful religious pluralism that is unmatched anywhere in the world. Christian media has a massive presence on television, radio, and online. But what too many “Christian Nation” advocates want, and what the Court is opening the door to, is a system in which a religious majority can more easily use the institutions of government to promote its religious beliefs and label others as outsiders.

And that is not the American Way. 

PFAW Foundation

Women Justices Press Important Questions During Hobby Lobby Arguments

Crowds of activists and advocacy groups gathered outside while the Supreme Court heard oral arguments Tuesday in the Sebelius v. Hobby Lobby Inc. case.

Justices Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg did not shy away from asking difficult questions that demonstrate the broad implications this case could have. Justices Sotomayor and Kagan voiced concerns regarding the implications of a ruling for the first time in our nation’s history that for-profit corporations have religious rights. Both justices questioned whether this decision would allow companies to deny access to coverage of not only contraceptive methods, but also of other lifesaving procedures employers might object to on religious grounds—like blood transfusions or vaccines.

The Huffington Post quotes Justice Kagan as saying, “There are quite a number of medical treatments that could be religiously objected to… Everything would be piecemeal, nothing would be uniform.”

Pushing the issue further, Justice Sotomayor asked, “How are courts supposed to know whether a corporation holds a particular religious belief?”

Similarly, Justice Ruth Bader Ginsburg stated that the Religious Freedom Restoration Act

was a law that was passed overwhelmingly [by] both houses of Congress. People from all sides of the political spectrum voted for it. It seems strange that there would have been that tremendous uniformity if it means [corporations are covered].

She added…

[T]here was an effort to adopt a … specific conscience amendment in 2012, and the Senate rejected that… That amendment would have enabled secular employers and insurance providers to deny coverage on the basis of religious beliefs or moral convictions. It was specifically geared to secular employers and insurance providers. And that…was rejected.

Justice Kagan noted that RFRA was considered non-controversial when it passed, an unlikely reaction if it had been understood to open the door to employers citing religious objections to complying with laws relating to sex discrimination, minimum wage, family leave, or child labor.

Justice Kagan also noted that women are “quite tangibly harmed” when employers don’t provide contraceptive coverage. This decision, however, could have far-reaching implications beyond women’s reproductive rights since this case deals with some of the same core issues seen in “right to discriminate” bills like Arizona’s, as we pointed out yesterday morning.

PFAW Foundation

What Universe Is the Roberts Court Living In?

In campaign finance, what is obviously corruption to most of us is just business as usual to the Roberts Court.
PFAW Foundation

Corporate Court Lets Monopolists Bypass Antitrust Laws

The Roberts Court empowers big corporations to violate antitrust laws and prevent small business victims from vindicating their federal rights.
PFAW Foundation

Sotomayor Debunks Right-Wing Line on Courts

In an interview with “60 Minutes” this weekend, Supreme Court Justice Sonia Sotomayor gave one of the best debunkings I’ve seen of the Right's line that a judge should be no more than an umpire, exercising no independent judgment and facing no difficult questions. Using the politically neutral example of the 3rd Amendment, Sotomayor explains how even the most seemingly clear-cut parts of the Constitution still require interpretation by judges and Justices:

Chief Justice John Roberts made headlines when, in his confirmation hearings, he said that a judge’s job was merely to call “balls and strikes.” The comforting words of his analogy hide the fact that most of the issues the Supreme Court approaches are complex and require human judgment – that’s why they reach the Supreme Court in the first place. They also conveniently obscure the fact that the conservative bloc on the Court is plenty influenced by their own ideology – there are plenty of examples here.

Justice Elena Kagan, in her confirmation hearings, gave another great rebuke to Roberts’ flawed baseball analogy. “We know that not every case is decided 9-0,” she said, “and we know that’s not because anybody’s acting in bad faith. It’s because reasonable people can reasonably disagree sometimes. So in that sense, the law does require a kind of judgment, a kind of wisdom. “

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PFAW

On Every Issue, Vote the Court

We are seeing increasing recognition of the Supreme Court as a central and critical issue in the presidential election.
PFAW

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 RomneyCourt.com.)

PFAW

A Diversity Milestone for Federal Judges

President Obama had as many women judges confirmed as Bush did in 8 years, but Republicans are preventing votes that would further diversify our courts.
PFAW

President Obama: A Romney Court Could ‘Turn Back the Clock for Women and Families for Decades’

Speaking at a campaign event in Colorado today, President Obama laid out the crucial importance of the Supreme Court in November’s election:

Today is the three-year anniversary of Sonia Sotomayor taking her seat on the Supreme Court. Yesterday was the two-year anniversary of Elena Kagan taking her seat on the Supreme Court. So let's be very clear -- the next President could tip the balance of the Court in a way that turns back the clock for women and families for decades to come. The choice between going backward and moving forward has never been so clear.

The choice has never been so clear. In the Huffington Post today, People For president Michael Keegan lays out what’s at stake as we pick the man who will pick our next Supreme Court justices:

So who would Romney pick for the Supreme Court? We've gotten a hint from his choice of former judge Robert Bork as his campaign's judicial advisor. Bork's brand of judicial extremism was so out of step with the mainstream that a bipartisan majority of the Senate rejected his nomination to the Supreme Court in 1987. Bork objected to the part of the Civil Rights Act of 1964 that desegregated lunch counters; he defended state laws banning birth control and "sodomy"; he was unabashedly in favor of censorship; he once ruled that a corporation could order its female employees to be sterilized or be fired. And, though it might not seem possible, since his confirmation battle Bork has gotten even more extreme.

Any justice appointed by Romney would likely fall in the footsteps of Bork in undermining workers' rights, eliminating civil rights protections, siding with corporations over the rights of individuals, threatening women's reproductive freedom, and rolling back basic LGBT rights. President Obama, on the other hand, has promised to pick more justices who share the constitutional values of Justice Sotomayor.

To learn more about Mitt Romney's dangerous vision for the Supreme Court, visit www.RomneyCourt.com.

 

PFAW

Sessions Objects to Judicial Nominee Who Called Kagan ‘Qualified’

The Senate Judiciary Committee yesterday approved the nomination of Maine attorney William Kayatta Jr. to sit on the 1st Circuit Court of Appeals. Only two committee members voted against allowing Kayatta a vote from the full Senate: Utah’s Mike Lee, who is still protesting all Obama nominees, and Alabama Sen. Jeff Sessions, who gave the following reason, according to the Portland Press Herald:

In a statement on his opposition to Kayatta's nomination, Sessions cited Kayatta's role as lead evaluator for the American Bar Association's Standing Committee on the Federal Judiciary during the nomination of U.S. Supreme Court Justice Elena Kagan.

Sessions said Kayatta saw fit to give Kagen the highest rating despite her lack of substantial courtroom and trial experience, as a lawyer or trial judge. Sessions said the rating was "not only unsupported by the record, but, in my opinion, the product of political bias."

Yes, that’s right. Kayatta was involved in the American Bar Association’s nonpartisan rating process, which dared to call the solicitor general and former Harvard Law School dean “well qualified” for the job of Supreme Court Justice.

Sessions, one of the most outspoken opponents of Kagan’s Supreme Court nomination frequently slammed her lack of judicial experience in her confirmation hearings two years ago. He seemed to conveniently forget that the late conservative icon Chief Justice William Rehnquist also came to the High Court without having previously served as a judge – as have over one third of all Justices in U.S. history. The American Bar Association similarly found Rehnquist qualified for the job and called him “one of the best persons available for appointment to the Supreme Court [pdf].

It would be funny if it weren’t so appalling: Sessions’ grudge against Kagan runs so deep that he not only objected to her nomination, he’s objecting to anyone who who’s dared to call her qualified for her job.

PFAW

"The Number One Reason to Vote"

Lawrence O'Donnell discusses the critical importance of the Supreme Court in this - and any - presidential election.
PFAW

Don’t Speak: The Supreme Court’s New Theory of Free Speech in Elections

Last year, the Supreme Court ruled that corporations have a First Amendment right to spend as much as they want to influence elections. Yesterday, the Court ruled that wealthy candidates and campaign donors have the First Amendment right not to have their spending matched by their opponents.

Welcome to the new logic of free speech in elections.

In a 5-4 decision today, the Supreme Court ruled that a crucial provision of Arizona’s landmark clean elections law, which provides matching funds to publicly financed candidates who are up against particularly well-financed opponents, to be unconstitutional. Why? Because the provision to put publicly financed candidates on even footing with their privately financed opponents “chills” the speech of wealthy individuals and groups who want to pour money into elections.

Yes, if you’re a wealthy person or interest group looking to buy an impact in an election, you might be put off by knowing that, because of matching funds, you would never be able to overwhelm a publicly funded opponent into comparative silence. But, looking at it from the other side, if you’re a candidate who wants to spend your campaign talking to voters rather than donors, you might hesitate to take public financing if you knew you would never be able to even come close the funds of your opponent – without matching funds, the public financing system is all but useless. By taking away the mechanism by which a greater number of candidates can make their voices heard, the Court has stifled speech, rather than protected it.

Justice Elena Kagan, in a zinger-laden dissent, took on the majority’s “more speech is less speech” argument:

The First Amendment's core purpose is to foster a healthy, vibrant political system full of robust discussion and debate. Nothing in Arizona's anticorruption statute, the Arizona Citizens Clean Elections Act, violates this constitutional protection. To the contrary, the Act promotes the values underlying both the First Amendment and our entire Constitution by enhancing the "opportunity for free political discussion to the end that government may be responsive to the will of the people."

People For’s Marge Baker had this to say:

The Roberts Court has once again twisted the Constitution to benefit the wealthy and powerful while leaving ordinary Americans with a diminished voice. Like in Citizens United v. FEC, which prohibited legislatures from limiting corporate spending to influence elections, the Court’s majority has strayed from the text and history of the Constitution in order to prevent citizens from maintaining control over our democracy. The Roberts Court would do well to remember that the Constitution was written to protect democracy for all people, not just the rich and powerful. Today it has ruled not only that the wealthy have a right to spend more but that they have a right that everyone else spend less.


PFAW

Empathy and The Loving Story

As a presidential candidate, Barack Obama let us know who he would be selecting as judicial nominees.

You know, Justice Roberts said he saw himself just as an umpire. But the issues that come before the court are not sport. They're life and death. And we need somebody who's got the heart to recogni-- the empathy to recognize what it's like to be a young, teenaged mom; the empathy to understand what it's like to be poor or African-American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges.

This “empathy standard” became a red herring used to attack the President and qualified jurists like Sonia Sotomayor and Elena Kagan. Then Senator Ted Kaufman (DE) emphasized just how wrong that argument was.

Likewise, President Obama’s promotion of empathy is not, as his critics suggest, the advocacy of bias. “Empathy,” as a quick look at the dictionary will confirm, is not the same as “sympathy.” “Empathy” means understanding the experiences of another, not identification with or bias toward another. Let me repeat that. “Empathy” means understanding the experiences of another, not identification with or bias toward another. Words have meanings, and we should not make arguments that depend on misconstruing those meanings.

As we continue to hear empathy trotted out as something sinister, it’s important to consider where our country might’ve been without it. That’s the lesson of The Loving Story.

Virginia’s argument that its law did not discriminate on the basis of race because it restricted both whites and African Americans equally might have persuaded Justices who were blind to the devastating impact of anti-miscegenation laws on everyday people. However, empathy allowed the Supreme Court in Loving v. Virginia to see what it really meant to ban interracial marriage. Yet just because that meant the Warren Court came down on the side of the “little guy,” doesn’t mean it ignored constitutional principles.

This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.

It just so happens that the Lovings were on the right side of the Constitution in their struggle to live with who they loved, where they were happiest, and where they wanted to raise their family.

If you get the chance to see The Loving Story, as I did at a DC screening earlier this week (more in Silver Spring next week), think about Mildred and Richard Loving and the countless couples who faced the same struggle. Think about how their state laws wronged not only them but also the Constitution. Think about how empathy put justice back on track.

Laura Murphy, Director, ACLU Washington Legislative Office, sums it up better than I ever could.

PFAW

With Liu Gone, GOP Still Twisting his Record

On Wednesday night, Berkeley law professor Goodwin Liu wrote to President Obama asking that the his nomination to sit on the Ninth Circuit Court of Appeals be withdrawn. Liu’s exit was the culmination of two years of smears, scapegoating and filibustering, in which the nominee never even got an up or down vote from the Senate.

The main gist of Republican opposition to Liu was the claim that he would be an “activist judge” in favor of making up constitutional rights willy-nilly (a claim that Republicans in the Senate have lobbed at any number of highly qualified judicial nominees, including current Supreme Court justice Elena Kagan, but interestingly not at Republican nominees who have shown strong streaks of creative legal interpretation).

In an op-ed earlier this week, the New York Times singled out Sen. John Cornyn for his false claim that Liu holds the “ridiculous view that our Constitution somehow guarantees a European-style welfare state.” Yesterday, in a letter to the editor, Cornyn fought back, providing this quote from a 2006 law review article by Liu to back up his claim:

On my account of the Constitution’s citizenship guarantee, federal responsibility logically extends to areas beyond education. ... Beyond a minimal safety net, the legislative agenda of equal citizenship should extend to systems of support and opportunity that, like education, provide a foundation for political and economic autonomy and participation. The main pillars of the agenda would include basic employment supports such as expanded health insurance, child care, transportation subsidies, job training and a robust earned income tax credit.

What is interesting about this quote is that it doesn’t say what Cornyn says it says. At all. Nowhere in the quote -- which Cornyn points to as decisive evidence that Liu wants the courts to turn us into Denmark -- does Liu say that the courts should enforce a social safety net. In fact, Liu is careful to specify that he is discussing the duty of Congress to create a “legislative agenda” that fulfills the highest ideals of the Constitution, rather than a judicial responsibility to enforce that agenda.

Elsewhere in the article [pdf], Liu makes it perfectly clear that he sees it as the duty of Congress, not the courts, to guarantee basic living standards for citizens. He even explicitly states that he intentionally doesn’t use the term “rights” because that would imply “judicial enforceability” of the values that he’s discussing:

In this Article, I do not address whether the Supreme Court or any court should hold that the Fourteenth Amendment guarantees an adequate education. Although that question remains open in the case law, my thesis is chiefly directed at Congress, reflecting the historic character of the social citizenship tradition as “a majoritarian tradition, addressing its arguments to lawmakers and citizens, not to courts.” Whatever the scope of judicial enforcement, the Constitution—in particular, the Fourteenth Amendment—speaks directly to Congress and independently binds Congress to its commands. Thus the approach to constitutional meaning I take here is that of a “conscientious legislator” who seeks in good faith to effectuate the core values of the Fourteenth Amendment, including the guarantee of national citizenship.

From this perspective, the language of rights, with its deep undertone of judicial enforceability, seems inapt to probe the full scope of a legislator’s constitutional obligations. As Professor Sager has observed, “[T]he notion that to be legally obligated means to be vulnerable to external enforcement can have only a superficial appeal.” It is more illuminating to ask what positive duties, apart from corresponding rights, the Fourteenth Amendment entails for legislators charged with enforcing its substantive guarantees. Framed this way, the inquiry proceeds from the standpoint that Congress, unlike a court, is neither tasked with doing legal justice in individual cases nor constrained by institutional concerns about political accountability. Instead, “Congress can draw on its distinctive capacity democratically to elicit and articulate the nation’s evolving constitutional aspirations when it enforces the Fourteenth Amendment.” By mediating conflict and marshaling consensus on national priorities, including the imperatives of distributive justice, Congress can give effect to the Constitution in ways the judicial process cannot.

Thus the legislated Constitution, in contrast to the adjudicated Constitution, is not “narrowly legal” but rather dynamic, aspirational, and infused with “national values and commitments.” …

(emphasis is mine)

Cornyn and his pals in the Senate know what was in the article they attacked. Liu even explained it to them in detail in response to written questions from the Senate Judiciary Committee [pdf]. But it was easier to willfully misinterpret Liu's writing and paint him as irresponsible than to engage in a substantive debate on his qualifications.

 

PFAW