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. “
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.)
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.
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.
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.
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.
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.
David Savage of the Los Angeles Times and Adam Liptak of the New York Times both examined this week how president Obama’s two Supreme Court picks are changing the dynamic of the high court. “Sonia Sotomayor and Elena Kagan,” writes Savage, “have joined the fray and reenergized the liberal wing.”
Gone are the mismatches where the Scalia wing overshadowed reserved and soft-spoken liberals like now-retired Justices David H. Souter and John Paul Stevens. Instead, the liberals often take the lead and press attorneys defending the states or corporations.
"They're clearly on a roll," said Washington attorney Lisa S. Blatt, who has argued regularly before the high court. "They are engaged and really active. It just feels like a different place."
That dynamic was on display this fall, when a court that leans conservative on cases of crime and punishment heard California's appeal in a case where a panel of three federal judges had ordered the release of about 40,000 prisoners. The state's lawyer stepped to the lectern with reason to expect a friendly reception.
The order is "extraordinary and unprecedented," Carter G. Phillips began, and "extraordinarily premature" because the state was not given enough time to solve its prison problems.
But Sotomayor soon cut him off.
"Slow down from the rhetoric," she said, launching into a withering discussion of the state's 20-year history of severe prison overcrowding and "the needless deaths" from poor medical care.
Kagan picked up the theme, contending that the state had spent years fighting with the judges but not solving the problem. It's too late now for "us to re-find the facts," Kagan said. The California judges had delved into the details for 20 years, and it was time now to decide whether the remedy was right, she said.
While Kagan, due to her recent role as the administration’s Solicitor General, has had to sit out many of the most contentious cases since she took her seat on the court, Sotomayor has clearly shown herself “alert to the humanity of the people whose cases make their way to the Supreme Court,” writes Liptak. He looks at the three opinions Sotomayor has written commenting on the court’s decision not to hear particular cases:
Justice Sotomayor wrote three of the opinions, more than any other justice, and all concerned the rights of criminal defendants or prisoners. The most telling one involved a Louisiana prisoner infected with H.I.V. No other justice chose to join it.
The prisoner, Anthony C. Pitre, had stopped taking his H.I.V. medicine to protest his transfer from one facility to another. Prison officials responded by forcing him to perform hard labor in 100-degree heat. That punishment twice sent Mr. Pitre to the emergency room.
The lower courts had no sympathy for Mr. Pitre’s complaints, saying he had brought his troubles on himself.
Justice Sotomayor saw things differently.
“Pitre’s decision to refuse medication may have been foolish and likely caused a significant part of his pain,” she wrote. “But that decision does not give prison officials license to exacerbate Pitre’s condition further as a means of punishing or coercing him — just as a prisoner’s disruptive conduct does not permit prison officials to punish the prisoner by handcuffing him to a hitching post.”
In the courtroom, she was no less outraged at the argument in a case concerning prison conditions in California, peppering a lawyer for the state with heated questions.
“When are you going to avoid the needless deaths that were reported in this record?” she asked. “When are you going to avoid or get around people sitting in their feces for days in a dazed state?”
In her confirmation hearings before the Senate Judiciary Committee, Kagan praised her former employer and mentor Justice Thurgood Marshall, saying his “whole life was about seeing the courts take seriously claims that were not taken seriously anyplace else.” Obama’s appointment of two justices who follow vocally in his path may be one of the most profound and lasting results of the 2008 elections.
Earlier this week, Supreme Court Justice Antonin Scalia told an audience of law students that the Constitution does not protect against sex discrimination. In a great column for Time today, Adam Cohen outlines what has gone so wrong with the trend toward vehement--but inconsistent--Constitutional originalism that Scalia represents:
The Constitution would be a poor set of rights if it were locked in the 1780s. The Eighth Amendment would protect us against only the sort of punishment that was deemed cruel and unusual back then. As Justice Breyer has said, "Flogging as a punishment might have been fine in the 18th century. That doesn't mean that it would be OK ... today." And how could we say that the Fourth Amendment limits government wiretapping — when the founders could not have conceived of a telephone, much less a tap?
Justice Scalia doesn't even have consistency on his side. After all, he has been happy to interpret the equal-protection clause broadly when it fits his purposes. In Bush v. Gore, he joined the majority that stopped the vote recount in Florida in 2000 — because they said equal protection required it. Is there really any reason to believe that the drafters — who, after all, were trying to help black people achieve equality — intended to protect President Bush's right to have the same procedures for a vote recount in Broward County as he had in Miami-Dade? (If Justice Scalia had been an equal-protection originalist in that case, he would have focused on the many black Floridians whose votes were not counted — not on the white President who wanted to stop counting votes.)
Even worse, while Justice Scalia argues for writing women out of the Constitution, there is another group he has been working hard to write in: corporations. The word "corporation" does not appear in the Constitution, and there is considerable evidence that the founders were worried about corporate influence. But in a landmark ruling earlier this year, Justice Scalia joined a narrow majority in striking down longstanding limits on corporate spending in federal elections, insisting that they violated the First Amendment.
The view of the Constitution that Scalia champions—where corporations have rights that the Constitution’s authors never imagined, but women, minorities, and working people don’t—has become a popular political bludgeon for many on the Right. GOP senators pilloried now-Justice Elena Kagan during her confirmation hearings for offenses such as thinking Congress has the right to spend money, arguing the case against giving corporations the same free speech rights as human beings, refusing to judge according to a subjective view of “natural rights,” and admiring the man who convinced the Supreme Court that school segregation was unconstitutional.
An avowed allegiance to the original intent of the Constitution has become a must-have for every right-wing candidate. The talking point sounds great, but it hides the real priorities behind it. Anyone who needs reminding of what the fidelity to the Constitution means to the Right needs just to look to Scalia.
Yesterday, former New Hampshire Attorney General Kelly Ayotte narrowly defeated Tea Party insurgent Ovide Lamontagne in the state’s Republican senate primary.
Ayotte is hardly a political moderate—Sarah Palin has anointed her a “Mama Grizzly”—but that didn’t keep her from being attacked from the right. One of Lamontagne’s charges against her? Ayotte said that if she were in the Senate she would have voted to confirm Supreme Court Justice Sonia Sotomayor.
Lamontagne’s full-on attack on Ayotte for conceding that Sotomayor was qualified to sit on the Supreme Court helped to propel him to within 2,000 votes of the much better-known, better-funded Ayotte. In addition to a lengthy screed on “Obama Judges” on his website, Lamontagne got a leg up from the conservative Judicial Crisis Network, which spent $50,000 on an ad campaign attacking Ayotte for her Sotomayor support.
Never mind that in 2009, a full nine Republican senators voted to confirm Sotomayor—including New Hampshire Senator Judd Gregg, who said of the nominee, “Her views and decisions, although strongly stated, are certainly not out of the mainstream of American jurisprudence or political thought."
Cooperating with the president to put moderate judicial nominees on the bench is apparently no longer a legitimate GOP position. Gregg (who is vacating the seat Ayotte is seeking) was one of only five Republicans to vote to confirm Supreme Court Justice Elena Kagan this spring. But the Kagan vote was an example of outright bipartisan bonhomie compared with the GOP’s stand on lower court nominees. Fewer Obama nominees have made their way through the Senate than under any president since Nixon—in a large part the result of the GOP’s unified refusal to vote on even those nominees with no Republican opposition.
By the time the Kagan nomination came around, Ayotte had learned her lesson on moderate judicial nominees, and issued a statement panning the Solicitor General. Ayotte’s struggle shows the enormous amount of energy the Right is spending on obstruction as a strategy in itself—and the danger for those who occasionally try saying something other than “No.”
One of the more baffling lines Republican lines of attack against Supreme Court Justice Elena Kagan during her Senate confirmation hearings was the accusations of guilt-by-association with civil rights hero Justice Thurgood Marshall.
Many of Marshall’s critics tried to backtrack after realizing that criticizing the man who led the effort to desegregate American schools, and eventually became the first African American Supreme Court Justice, wasn’t exactly wise. But we don’t think they should be allowed to bury their attacks.
And for more on why Grassley’s attacks on Marshall were so off-base, read People For board member Julian Bond’s op-ed in the Des Moines Register: “GOP attacks on Marshall echo anti-civil rights message of 1960s.”