California

Focus on the Family Leader Admits that Right is “Losing” Equality Debate

Jim Daly, president of the Religious Right group Focus on the Family conceded to an interviewer last week that anti-gay groups have “probably lost” the debate over marriage equality. It’s a big admission by a prominent figure on the Right, but it’s also an acknowledgement of what has become common sense. Poll after poll shows that for the first time majorities of Americans support marriage equality, with the highest numbers among young people. As anti-gay legislation is fought out in the courts and in statehouses, it is accompanied by a sea change in public opinion that threatens to make it archaic.

After last summer’s federal court decision striking down California’s Proposition 8, PFAW’s Michael Keegan noticed that Religious Right activists were beginning to admit defeat on gay rights:

This parade of apoplectic anger is nothing new--the Right has fought every step toward acceptance of gay people with similar Armageddon-invoking tirades. What is remarkable about the reaction to the Prop 8 decision is that within the anger are the beginnings of admissions of defeat. The Right has won many important battles against gay rights, but they are losing the war...and they know it.

A few days after Judge Walker's decision, the pseudo-historian David Barton, founder and president of the right-wing group WallBuilders, explicitly described the nervousness that has been behind much of the Right's outrage. The case against Proposition 8, Barton argued, could win in the Supreme Court...so opponents of marriage equality should sacrifice California in order to save anti-equality laws in 31 other states.

"Right now the damage is limited to California only," Barton told Tim Wildmon, President of the American Family Association during a radio interview, "but if California appeals this to the US Supreme Court, the US Supreme Court with Kennedy will go for California, which means all 31 states will go down in flames, although right now this decision is limited only to California...the problem is that instead of California losing its amendment, now 31 states lose their amendment. And that won't happen if California doesn't appeal this.

Last week, I went to a talk with the attorneys arguing the Prop 8 case, Ted Olson and David Boies. Olson said he saw their job as having two parts: presenting the Constitutional case against discrimination in the court of law, and presenting it in the “court of public opinion.”

“If we win this case,” Olson said, “we want people to look at it and say, ‘Of course. It’s about time.’”

Constitutional rights should never be decided by the will of the majority – that’s why we have constitutional rights in the first place. But Olson and Boies are building their case in a country where the rights of gays and lesbians are increasingly accepted as a given. The Religious Right isn’t going to give up its fight against equality anytime soon. But its leaders are beginning to see that they are fighting a losing battle in both the court of law and the court of public opinion.

PFAW

House Committee Shills for Fracking, Despite the Risks

This Friday, Darrel Issa’s House Oversight & Government Reform Committee will be holding a field hearing in Bakersfield, California, where several lobbyists who have made substantial contributions to members of the committee will argue against regulating “fracking,” or Hydraulic Fracturing. This technique for harvesting natural gas from deep within the Earth’s crust requires millions of gallons of water and thousands of gallons of a toxic chemical mixture—the contents of which the industry refuses to disclose.

PFAW has put together a fact sheet which details the dangers of fracking as well as the vast web of corporate cash that is influencing the committee’s actions—with potentially serious consequences to our health and the environment. You can view the fact sheet here.

PFAW

Issa Deregulates While the Troops Get Evicted

“Support our troops!” rings the familiar battle cry of many Republicans in Congress. However, a new post by Courage Campaign calls attention to how, when talking about supporting the troops, they sometimes do not (literally) put their money where their mouths are.

Darrell Issa, Chairman of the House Oversight and Government Reform Committee, says he supports helping America’s soldiers obtain a good loan for housing:

In the 110th Congress, I supported H.R. 551, the “Home Ownership for America’s Veterans Act of 2007.” This bill will allow veterans entering the military after 1977 to participate in the Cal-Vet home loan program. The Cal-Vet program offers below market interest rate and little to no money down on home loans for qualified veterans purchasing a home in California. Currently, military before 1977 are afforded this opportunity. This benefit should be extended to our many members of the armed forces entering after this date.

 Unfortunately, the economic recession caused by Wall Street recklessness has hit military families disproportionately hard, and thousands of military families are losing their homes. If there was ever an appropriate target for an investigation, these bigwig bankers would be it.

The trouble is that the financial sector supplies plenty of campaign cash to Mr. Issa, so it is unlikely that we will see any meaningful oversight or reform in this arena any time soon, at least not while the Chairman prioritizes deregulation for the benefit of his corporate backers over all else.

Meanwhile, the troops are losing their homes.

PFAW

The Corporate Court Strikes Again: By 5-4, Supreme Court Undermines Class Action Consumer Protection Suits

Yesterday at the Supreme Court, the five conservative Justices on the Corporate Court handed corporate interests even greater control than before over Americans' daily lives. In AT&T v. Concepcion, a narrow 5-4 majority used a federal arbitration law in a way wholly alien to its intent: to undermine state consumer protection laws across the country. Even worse, under yesterday’s precedent, employers may now be able to easily cut off anti-discrimination enforcement through class action lawsuits – often the only way to address employment discrimination – by simply refusing to hire anyone who does not agree to resolve future conflicts through arbitration clauses that contain a ban on class action.

This case started when AT&T allegedly scammed thousands of customers by offering a "free" second phone, then charging them for the taxes on the undiscounted price of the phone. One of its victims brought a class action suit against the company. However, AT&T had a service contract where consumers had to agree to resolve any future claims against the cell phone company through arbitration, rather than the courts. In addition, customers had to agree not to participate in any class action against the telecommunications giant. So AT&T asked the court to enforce the agreement it had imposed upon the Concepcions by throwing out the class action suit and forcing them into arbitration, one lone family against AT&T suing for a few dollars without the protections of courts of law or neutral judges.

Under California law, the contractual prohibition against class action is so outrageous as to be illegal. California recognizes that such provisions effectively protect companies from being held liable for their transgressions and that they are able to force them upon consumers only because of the corporations’ vastly superior bargaining position.

But the Roberts Court said this state protection of consumers is preempted by the Federal Arbitration Act, which generally encourages courts to compel arbitration in accordance with the terms of arbitration agreements.

Many of us have gotten incomprehensible bills from giant telecom companies with relatively small charges for services never ordered, or mysterious taxes or fees that the company should not be charging. Unfortunately, the vast majority of consumers who are cheated in these situations don't even realize it. Moreover, because the amounts at issue are relatively small, there is little incentive for consumers to undertake the significant expenses of recovering their loss. Even when the company pays out to the tiny percentage of defrauded customers who go to the trouble to engage in lone arbitration against the company, the overall scheme remains profitable.

That is why class actions are so important. They allow the entire universe of cheated consumers to recoup their losses, making possible the deterrent effect of a potentially significant financial loss to the deceptive corporation. In ruling for AT&T, the Roberts Court has devastated state-level consumer protections like California’s and essentially given corporations an instruction manual on how to commit rampant fraud against consumers. Beyond that, using the same interpretation of the Federal Arbitration Act, employers may be able to evade class-action discrimination lawsuits as well, putting all workers at risk.

Fortunately, unlike Citizens United, this Corporate Court gift to Big Business rests on an interpretation of a statute, not the Constitution. In other words, Congress can fix this problem with a simple bill. Senate Judiciary Committee Chairman Patrick Leahy has already called on Congress to do just that.

PFAW

Prop 8 Supporters Seek to Vacate Case They Lost

Proponents of California's Proposition 8 are making another assault against the trial court decision they lost and have appealed. This time, instead of addressing the merits of the case, they are attacking the judge who wrote the opinion. As reported in SCOTUSBlog:

Arguing that the judge who struck down California's ban on same-sex marriage was not impartial, because of his failure to disclose his own long-term gay relationship, the sponsors of Proposition 8 asked a federal judge in San Francisco on Monday to throw out all parts of the ruling and any earlier orders in the famous case. The motion to vacate the ruling by now-retired U.S. District Judge Vaughn R. Walker can be read here.

Since Walker retired, the case has been taken over for any further action in U.S. District Court in San Francisco by the chief judge there, James Ware. The new filing by the Proposition 8 backers said they would seek permission from the Ninth Circuit Court — where Walker's ruling is now under review — for Judge Ware to rule on their new challenge. With the case pending in the Circuit Court, that judge may not have the authority to act without permission. ...

The motion asserted that the opponents were "not suggesting that a gay or lesbian judge could not sit on his case." Rather, they argued that Judge Walker had a personal interest in the outcome of the case, because he may wish to marry his partner if Proposition 8 no longer exists. At a minimum, the motion argued, he should have disclosed that relationship and whether he has any interest in marriage so that the parties in the case could evaluate whether to formally demand that he step aside under federal laws governing such disqualifications.

Right Wing Watch reported last week on The National Review’s Ed Whalen making this same argument.

The claim that Judge Walker had a personal stake in the case that warrants throwing his decision out adds yet another illogical inconsistency to the far right’s arguments against marriage equality. Under this reasoning, since traditional marriage is designed to show societal favor toward monogamous opposite-sex couples, any judge in an opposite-sex relationship has a personal stake in the case that warrants disqualification.

And if same-sex marriage genuinely threatens opposite-sex marriage as the far right claims, then married heterosexual judges (or ones in long-term relationships who might want to marry someday) have a personal stake in the Prop 8 case that could disqualify them from hearing the case.

If anti-equality advocates actually believe the legal principles they espouse, they should apply them across the board, not only when it suits their political agenda. Otherwise, one might be forgiven for thinking that their real goal is to hurt gay people, rather than to protect the integrity of the law.

PFAW

Big Pharma, Little Regulation

Congress may be in recess this week, but that doesn’t mean policymakers are taking a break from cozying up to corporate campaign contributors. Today at a field hearing in California, the House Committee on Oversight & Government Reform is inviting top pharmaceutical executives to testify about how government regulations intended to prevent drug companies from selling poison to the general public are hindering their ability to make money.

Committee Chairman Darrell Issa’s habit of providing Republican financiers with the opportunity to requests favors from his committee is nothing new, but a report from Public Campaign gives the details on how Big Pharma earned its day on the witness stand.

According to the report, the pharmaceutical industry is Issa’s #1 contributor, giving him nearly $300,000 throughout his time in Congress—including a haul of $72,000 in 2010 alone. 83 percent of the industry’s contributions to Issa's campaign committee have come from the PACs of 25 different companies, led by giants such as Allergen, Pfizer, Amgen and GlaxoSmithKline. Even the hearing’s witnesses have personally made substantial donations: Duane Roth, Chairman of Alliance Pharmeceutical Corporation, has donated $5,500 to Issa. Alexander Lukianov, CEO, Nuvasive, Inc., has donated nearly $10,000 to the Republican National Committee.

I’m holding my breath to see how many “federal policies affecting job growth in the biotech and pharmaceutical industries” will be slashed at the “suggestion” of the industry.

PFAW

James O’Keefe Discredited—Again

When will leaders in politics and the media stop believing right-wing smear artist James O’Keefe? Known for his “sting videos,” O’Keefe has been consistently discredited for his work against ACORN, CNN, a U.S. Senator, and now, NPR.

An analyst for The Blaze, a conservative website, found that the videos were heavily doctored and quoted the NPR executives out of context. Reflecting on the analysis, Politico’s Ben Smith said, “I regret having, even in what I thought was a cautious way, picked up the story”

This wasn’t the first time O’Keefe doctored videos, as he performed the same malicious editing in his “sting” of the civic group ACORN. A probe into the videos by California’s Attorney General found no criminal activity by ACORN employees and said O’Keefe’s videos reflect “highly selective editing of reality.” Later, O’Keefe was arrested and convicted for attempting to tamper with the phones of US Senator Mary Landrieu’s office and also was caught trying to humiliate a CNN reporter when one of his own coworkers called him out.

Currently, Republicans in Congress are trying to defund NPR and PBS, and leading Republicans quickly embraced O’Keefe’s undercover videos, which were deceptively edited to show NPR officials speaking critically of the Tea Party and conservatives.

US Senator Dick Durbin told the GOP to drop its plan to defund public broadcasting and stop using O’Keefe’s discredited videos as an excuse:

If the name James O' Keefe rings a bell with members of the United States Senate it should. Remember some of the other things he was caught doing?... Mr. O'Keefe is obviously not worried about breaking a law if he thinks he is going to come up with a sensational video. He was convicted in Louisiana as I mentioned earlier.

Not only should Republicans stop paying O’Keefe attention, but so should media personalities like Chris Wallace of Fox News who lauded the smear artist as “power player of the week.” But while O’Keefe may be able to win attention for himself, he continues to lose all credibility.

PFAW

Congressmen Expose King Hearings for Undermining Law Enforcement and American Values

During Rep. Peter King's misguided King hearing on what he calls the " radicalization of Muslim American community," Republicans took time to speak about the purported threat of Sharia Law and myths about Muslim Americans' lack of cooperation with law enforcement officials. Rep. Yvette Clarke of New York was right on target when she called the hearings “political theater.” One by one Republican congressmen and their witnesses, none of whom were law enforcement officials, tried to defend the hearings despite ample evidence disproving their assumption that Muslim Americans are radical and dangerous. As Sheriff Lee Baca, a witness called by the Democrats, told the hearing, Muslim Americans consistently work with law enforcement and are far from the “enemy within” that the GOP represents.

Congresswoman Laura Richardson of California pointed to the clear connection between the King hearings’ use of scare tactics, false charges, and fear-mongering and Joseph McCarthy's ruthless investigations in the 1950s.

Congressman Andre Carson of Indiana, one of the two Muslims serving in Congress, discussed his own background in law enforcement and how by stigmatizing and marginalizing Muslim Americans, the GOP was undercutting cooperation between the community and law enforcement:

The two representatives exposed the King hearings as nothing more than a political stunt to ramp up the GOP’s drive to demonize Muslim Americans, while contributing nothing to law enforcement or national security.

PFAW

Japanese American Groups Supporting American Muslims in Fight Against Discrimination

The Washington Post today reports on the work some Japanese American groups are doing to support American Muslims, who are increasingly the objects of widespread fear and suspicion because of their faith. These groups see echoes of the persecution Japanese Americans faced during World War II in the scapegoating and vilification of American Muslims, exemplified by the congressional hearings Rep. Peter King is beginning this week:

Spurred by memories of the World War II-era roundup and internment of 110,000 of their own people, Japanese Americans - especially those on the West Coast - have been among the most vocal and passionate supporters of embattled Muslims. They've rallied public support against hate crimes at mosques, signed on to legal briefs opposing the government's indefinite detention of Muslims, organized cross-cultural trips to the Manzanar internment camp memorial near the Sierra Nevada mountains in California, and held "Bridging Communities" workshops in Islamic schools and on college campuses.

Last week, Rep. Michael M. Honda (D-Calif.), who as a child spent several wartime years living behind barbed wire at Camp Amache in southeastern Colorado, denounced King's hearings as "something similarly sinister."

"Rep. King's intent seems clear: To cast suspicion upon all Muslim Americans and to stoke the fires of anti-Muslim prejudice and Islamophobia," Honda wrote in an op-ed published by the San Francisco Chronicle.

Last November, in the heat of the debate over the Park51 Islamic community center in lower Manhattan (aka the “Ground Zero Mosque”), former Supreme Court Justice John Paul Stevens spoke [pdf] about the parallel between the prejudice Japanese Americans faced during World War II the demonization that American Muslims are facing today. Stevens, a WWII veteran, recalled a visit to Pearl Harbor in 1994, when he spotted a group of Japanese tourists and had to fight his first reaction, which was that “those people really don’t belong here”:

But then, after a period of reflection, some of those New Yorkers may have had second thoughts, just as I did at the Arizona. The Japanese tourists were not responsible for what some of their countrymen did decades ago; the Muslims planning to build the mosque are not responsible for what an entirely different group of Muslims did on 9/11. Indeed, terrorists like those who killed over 3, 000 Americans -including Catholics , Jews , Protestants, atheists and some of the 600 ,000 Muslims who live in New York -have also killed many more Muslims who disagree with their radical views in other parts of the world. Many of the Muslims who pray in New York mosques may well have come to America to escape the intolerance of radicals like those who dominate the Taliban. Descendants of pilgrims who came to America in the 17th century to escape religious persecutions -as well as those who thereafter joined the American political experiment that those people of faith helped launch -should understand why American Muslims should enjoy the freedom to build their places of worship wherever permitted by local zoning laws.

Our Constitution protects everyone of us from being found guilty of wrongdoing based on the conduct of our associates. Guilt by association is unfair. The monument teaches us that it is also profoundly unwise to draw inferences based on a person's membership in any association or group without first learning something about the group. Its message is a powerful reminder of the fact that ignorance -that is to say, fear of the unknown -is the source of most invidious prejudice.


PFAW

Ugly Islamaphobia in Orange County

The Council on American-Islamic Relations (CAIR) has released a disturbing video of about one hundred anti-Islamic protesters heckling attendees a fundraiser for a Muslim charity last month. The protestors, some with bullhorns, shout at attendees to “go back home,” “no Sharia law,” and “one nation under God, not Allah.” The hecklers were part of a larger group gathered to protest the event, which was treated to speeches by several local Republican elected officials, including U.S. Reps. Gary Miller and Ed Royce. Royce told the crowd that multiculturalism has “paralyzed too many of our fellow citizens”:

The Orange County Register spoke with the organizers of the event, the Islamic Circle of North America Relief USA:

ICNA spokesman Syed Waqas said the protesters "should know the facts. We have no links to any overseas organization. We absolutely denounce violence and terrorism."

He said the group started in Southern California about eight months ago and is trying to raise $350,000 to start social programs such as women's shelters, fighting hunger and homelessness in the area.

Among the activists who worked to spread the word of the protests was Pamela Geller, the anti-Islam activist who was largely responsible for turning a proposed Islamic community center in lower Manhattan into the nationally controversial “Ground Zero Mosque.” Geller has become a leader in the effort to conflate all practicing Muslims with a tiny splinter of extremists—an effort that has born fruit in ludicrous state-level “Sharia law bans” and even in congressional hearings aimed at pinning all Muslims for the actions of a few. (For more on the congressional hearings, read Michael Keegan’s recent op-ed on the “new McCarthysim”).

While some protesters said they objected to previous remarks made by some of the speakers at the fundraiser, the protests instead consisted of hurling blanket anti-Muslim slurs at the people in attendance.

Islamophobia often comes out in subtle ways in mainstream political discourse—take, for instance, Mike Huckabee telling the virulently anti-Islam Bryan Fischer that President Obama’s childhood hears in Indonesia made him fundamentally different from Americans who grew up with “Rotary clubs, not madrassas,” or the opposition of many elected officials to the Geller-branded “Ground Zero Mosque.” These elected officials aren’t out on the streets heckling Muslims—but by condoning Islamophobia, however subtly, they’re helping this kind of outright racism to take hold.
 

PFAW

President Obama Calls DOMA Unconstitutional

Attorney General Eric Holder has announced that the Department of Justice will no longer defend Section 3 of the Defense of Marriage Act in court because it is unconstitutional. This is the provision prohibiting federal recognition of the marriages of gay or lesbian couples. As if that wasn't big enough news by itself, DoJ has concluded that legal classifications based on sexual orientation, like those based on race, sex, national origin, and religion, should be subject to a higher level of judicial scrutiny.

While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision. In particular, in November 2010, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.

These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

This is the first recognition by the United States government that gays and lesbians have suffered a long history of discrimination so bad that it makes suspect any laws that treat people differently based on sexual orientation.  Moreover, that discrimination continues today and limits their political influence.

[T]he adoption of laws like those at issue in Romer v. Evans [prohibiting the state from passing civil rights protections for gay people] and Lawrence [laws making their private sexual conduct a crime], the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and "ability to attract the [favorable] attention of the lawmakers." Cleburne, 473 U.S. at 445. And while the enactment of the Matthew Shepard Act and pending repeal of Don't Ask, Don't Tell indicate that the political process is not closed entirely to gay and lesbian people, that is not the standard by which the Court has judged "political powerlessness." Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).

The Attorney General's announcement notes that it will continue to enforce DOMA until it is repealed by Congress or struck down definitively by the courts. In addition, it will work to ensure that Congress, should it wish, has the opportunity to defend the law in court since the Administration cannot in good conscience do so. (This would presumably avoid a situation like the one in California, where the state refused to pursue an appeal of the district court ruling against Proposition 8, leaving in doubt whether anyone has standing to do so.)

PFAW

Women in Congress Speak Out on Attacks on Women's Health

Last night, as the House debated an amendment from Rep. Mike Pence that would strip Planned Parenthood of federal funding, some women in Congress responded with personal stories.

Rep. Jackie Speier of California revealed that she had had an abortion for a troubled preganancy, telling her anti-choice colleagues: "I lost the baby. And for you to stand on this floor and suggest that somehow this is a procedure that is either welcomed or done cavalierly or done without any thought, is preposterous":

And Rep. Gwen Moore of Wisconsin spoke of her own experience with unplanned preganancy and raising children in poverty. "The public policy has treated poor children and women who have not had the benefit of planned parenthood with utter contempt," she said:

Earlier this week, People For President Michael Keegan called efforts to strip funding from Planned Parenthood and similar organizations "a blatant attempt to play politics with women's health"

“This is a shameless attempt to stir up a Right Wing “culture war,” whatever the collateral damage-- in this case, critical healthcare for millions of low-income women. If the House GOP is really interested in preventing unintended pregnancies, it should embrace organizations that provide affordable contraception. If it’s interested in public health, it should be interested in helping women defend themselves against disease. If these bills become law, millions of American women will lose access to critical family planning and reproductive health services. This move is not fiscally responsible or socially responsible—it’s a blatant attempt to play politics with women’s health.”

 (h/t Huffington Post and RH Reality Check)

PFAW

The House GOP's Aboogaboogaboogabooga Constitution

For the past few decades, Republicans have aggressively and notoriously acted as if only they love the flag, only they appreciate families, only they are religious, and only they care about national defense. In the past couple of years, inspired by the Tea Party, they've added a new object to which they falsely lay sole claim: the United States Constitution.

Of course, for many of them, it's little more than a fetish. After all, the Republican Party's Constitution has long denied the right to abortion (and, in many cases, the right to privacy altogether), denied church-state separation, denied the right to vote, and denied equality under the law for LGBT people. The Tea Party's version of the Constitution is even more removed from the real thing, as analyzed in a recent PFAW report, Corporate Infusion: What the Tea Party's Really Serving America.

So it's no surprise that House Republicans' latest effort to lay claim to the Constitution – requiring bill sponsors to submit statements specifying the constitutional authority for their legislation – has turned out to be meaningless. As reported by Congressional Quarterly (subscription required):

During a Feb. 11 subcommittee markup on a bill (HR 358) offered by Joe Pitts, R-Pa., to prohibit federal funds from being used to pay for health insurance that covers abortion, New York Democrat Anthony Weiner offered a point of order against the legislation on grounds that its "statement of constitutional authority" does not point to any specific authority for Congress to take such action.

The bill's statement says: "The Protect Life Act would overturn an unconstitutional mandate regarding abortion in the Patient Protection and Affordable Care Act," last year's health care overhaul.

The markup soon became chaotic as lawmakers clashed for nearly an hour over whether the statement passed muster, and whether the Republicans were flouting their own rule. "The rules are the rules, and the Constitution is the Constitution," Weiner exclaimed.

Eventually, Energy and Commerce Chairman Fred Upton, R-Mich., consulted the Rules Committee, which in January issued a handy guide to complying with the new rule. The Rules Committee provided guidance on how statements of constitutional authority might be phrased, but said the only requirement is that a statement be submitted.

"The question of whether the statement is sufficient is a matter for debate and a factor that a member may consider when deciding whether to support the measure," Upton said.

The committee's top Democrat, Henry A. Waxman of California, called that “a mockery” of the rules. "The ruling is that it doesn't make any difference what you say,” he said. “You could say, 'Aboogaboogaboogabooga!' and that's enough to justify the constitutionality of the proposal."

The Constitution that established a careful separation of powers, an independent court system, freedom of speech, freedom of religion, the eradication of slavery, and equality for all is far too precious a document to become just a symbol in meaningless political posturing. Shame on the House Republicans.

PFAW

Senate Confirms Three Judges…But What About the 99 Vacancies Left?

Last night, the Senate struck an agreement to confirm three of President Obama’s non-controversial judicial nominees. That’s great—but, as of this morning, it leaves 99 seats on the federal judiciary left to fill. And, as the long road to last night’s three easy confirmations shows, if the Senate’s behavior with judicial nominations doesn’t change, that number is not going to dwindle fast.

The stories behind the three nominees confirmed last night clearly illustrate the Senate dysfunction that has led to one in nine seats on the federal judiciary being vacant. Marco Hernandez, an Oregon judge, was first nominated to the federal district court in 2008…by George W. Bush. When President Obama renominated him July, 2010, he did not receive a vote in the Senate. When his nomination finally went to a vote yesterday, after three years and three nominations, he was confirmed unanimously.

Attorney Paul Kinloch Holmes was nominated for the federal bench in Arkansas in April, 2010. His nomination stalled all last year in the Senate, and President Obama renominated him last month. He was confirmed without a single dissenting vote. Diana Saldana of Texas, also confirmed without dissent last night, had also been nominated twice and seen her nomination languish on the Senate floor for almost a year.

The Washington Post today reports on the crisis in the federal judiciary created by the Senate’s failure to confirm judges at the rate that they’re retiring:

The crisis is most acute along the southwestern border, where immigration and drug cases have overwhelmed court officials. Arizona recently declared a judicial emergency, extending the deadline to put defendants on trial. The three judges in Tucson, the site of last month's shooting rampage, are handling about 1,200 criminal cases apiece.

"It's a dire situation," said Roslyn O. Silver, the state's chief judge.

In central Illinois, three of the four judgeships remain vacant after two of President Obama's nominees did not get a vote on the Senate floor.

Chief Judge Michael McCuskey said he is commuting 90 miles between Urbana and Springfield and relying on two 81-year-old "senior" judges to fill the gap. "I had a heart attack six years ago, and my cardiologist told me recently, 'You need to reduce your stress,' '' he said. "I told him only the U.S. Senate can reduce my stress.''

As we’ve pointed out here before, the judicial crisis is about far more than the health of overworked judges. Overworked courts mean slower access to justice for citizens:

The effect is most visible in civil cases, with delays of up to three years in resolving discrimination claims, corporate disputes and other lawsuits.

"Ultimately, I think people will lose faith in the rule of law,'' said Alex Kozinski, chief judge of the U.S. Court of Appeals for the 9th Circuit in California. "We as a nation believe that if you have a dispute, you go to court and within a reasonable period of time, you get a decision.''

Ultimately, it’s ordinary citizens who pay for the Senate’s failure to perform one of its simplest and most essential tasks—ensuring the fairness and functioning of the federal judiciary.
 

PFAW

Hundreds in California Protest Corporate Influence in Elections

In the year since the Supreme Court’s decision in Citizens United v. FEC, there has been new scrutiny on the increasingly cozy relationship between corporate funders of elections and national policy makers. Exemplifying that relationship have been the Koch brothers, billionaires whose dollars have helped to fund right-wing organizations and campaigns for years, and who were behind one of the most powerful outside groups in the 2010 elections, Americans For Prosperity. The brothers also hold twice-yearly meetings of influential donors, pundits, and politicians—past guests have included Glenn Beck, Sens. Jim Demint and Tom Coburn, and even Supreme Court Justices Antonin Scalia and Clarence Thomas (both of whom were in the Citizens United majority).

The Kochs held their most recent strategy meeting at a spa in Palm Springs this weekend. Attending the secretive event was House Republican Leader Eric Cantor, among other undisclosed guests. Outside were 800-1,000 protestors, 25 of whom were arrested for trespassing. The LA Times reports:

Protest organizers said they hoped to raise awareness about the Koch brothers and what activists portray as their shadowy attempts to weaken environmental protection laws and undercut campaign contribution limits.

The brothers control Koch Industries, the nation's second-largest privately held company. They have funded groups pushing a limited-government, libertarian agenda, helped organize "tea party" groups and contributed $1 million to a failed ballot initiative to suspend California's law to curb greenhouse gases.

"We cannot have democracy unless everyone has a voice," said Cathy Riddle, a Temecula website developer who held a sign reading "Corporations are not people." Donors like the Koch brothers are "drowning us out," she said. "Their voices are louder."

The protest, organized by Common Cause, included some members of People For the American Way. It came one week after activists, in events around the country, marked the first anniversary of Citizens United and called for a constitutional amendment to reverse it. Watch PFAW’s video explaining the decision and its impact:
 

PFAW

Deferred Decision in Prop 8 Case

Earlier today, a three-judge panel of the United States Court of Appeals for the Ninth Circuit issued an opinion in the Proposition 8 case, unanimously concluding that they do not have enough information to decide if the Proposition 8 proponents have standing to pursue the appeal. Only if they have standing can the Ninth Circuit even consider the merits of the case.

The answer depends on what California state law is, so they have asked the California Supreme Court for guidance. We will have to wait for that court to respond before we learn if the Ninth Circuit will even get to the merits of the case.

If the Ninth Circuit should eventually overturn Proposition 8, we will doubtless hear accusations from the right that the judges pursued a political agenda to get the desired result at the expense of the law. Today’s decision undercuts any such argument. All three judges deferred making a decision until they could address the basic legal question of standing. This is hardly the move of judges with a political agenda and contempt for law.

PFAW

Justice Scalia and Sex Discrimination

Justice Antonin Scalia is in the news again, having pronounced yet again that the United States Constitution does not prohibit the government from discriminating against women. The Huffington Post reports on a newly-published interview with the legal magazine California Lawyer:

[Interviewer:] In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?

[Scalia:] Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box.

The Huffington Post notes:

Marcia Greenberger, founder and co-president of the National Women's Law Center, called the justice's comments "shocking" and said he was essentially saying that if the government sanctions discrimination against women, the judiciary offers no recourse.

Although you might not know it from what Scalia says, there is nothing in the Fourteenth Amendment that puts women outside its scope. The text is quite plain on that regard: "No state shall ... deny to any person within its jurisdiction the equal protection of the laws" (emphasis added). The last anyone checked, women are people.

Scalia has previously discussed with legal audiences his opposition to constitutional equality for women. In fact, he wrote a lone dissent 15 years ago in United States v. Virginia making his view clear: He believes that the landmark 1971 Supreme Court case ruling that the government cannot discriminate against women simply because they are women was wrongly decided. (Then-litigator Ruth Bader Ginsburg helped write the brief arguing for equality in that case.)

When it comes to the rights of women, Scalia’s Constitution is a stiff, brittle document, relegating women to the limited rights they were allowed to have in 1868, when the Fourteenth Amendment was adopted.

Interestingly, his approach is far more flexible for corporations, as we saw in Citizens United, when he concluded that mega-corporations have the same First Amendment rights as people for the purposes of election law.

Perhaps if a woman wants to have full constitutional protection from Justice Scalia, she needs to incorporate.

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2008’s Court

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.
 

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Sessions Puts His Lab Coat Back On

Back in September, we wrote about Sen. Jeff Sessions’ discovery of what he called the “ACLU chromosome”—according to the senator, a common genetic defect that disqualifies bearers from the federal judiciary.

Well, Dr. Sessions is back at it. TPM has this video of Sessions ranting yesterday about the supposed prevalence of the “ACLU chromosome” in President Obama’s judicial nominees:

As Sen. Mark Udall later pointed out on the Senate floor, it’s unlikely that Sen. Sessions would have a similar reaction to a “Federalist Society chromosome”. While a few of President Obama’s nominees have had a history working with the ACLU—for instance, Edward Chen of California who worked to prevent discrimination against Asian Americans—President Bush made a point of packing the courts with judges who belonged to the far-right Federalist Society.

It’s absurd arguments like Sessions’ that are keeping qualified, well-respected nominees like Chen from even receiving an up or down vote in the Senate. While reports say that the Senate GOP has finally agreed to vote on 19 judicial nominees who they have been stalling despite little or no opposition to their confirmations, four nominees, including Chen, will be left out to dry without even a vote.

And, for the record, the ACLU had this to say about Sessions’ rant:

"Senator Sessions' reference to 'ACLU DNA' in President Obama's judicial nominees should be greeted as a welcome discovery by all Americans, regardless of party. For 90 years, the ACLU has defended the rights enshrined in the Constitution for everyone, regardless of their political beliefs. While not everyone agrees with us on every issue, Americans have come to rely on the ACLU for its unyielding dedication to principle."

"There is a long record of highly respected ACLU-affiliated lawyers who have been appointed to the federal bench, including luminaries such as Supreme Court Justices Thurgood Marshall, Felix Frankfurter, Arthur Goldberg and Ruth Bader Ginsburg. All have demonstrated their dedication to the Bill of Rights in important decisions supporting freedom of speech, the right to due process and gender and racial equality. There are also dozens of highly regarded district court and appellate court judges who have served or serve now on federal benches throughout the nation. Their ACLU background has helped them bring to the judicial system a steadfast commitment to constitutional values and an understanding of the critical role that the judiciary plays in safeguarding them."

"If you ask us, ACLU chromosomes make for a pretty remarkable gene pool," she added.


 

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Court Accepts Global Warming Nuisance Case

This morning, the Supreme Court agreed to hear a case affecting whether and how corporate polluters can be held accountable for the planetary climate damage they are causing. Several states have sued power producers on the basis that they are creating a public nuisance. This is federal common law, not tied to any specific federal statutes or regulations. The Second Circuit ruled that the lawsuit could proceed on this theory, and the power companies appealed.

According to the Los Angeles Times:

The global warming case will decide whether judges and courts can put limits on carbon emissions on the theory that this pollution is a public nuisance. Eight states, including New York, California and Connecticut, joined with environmentalists and launched a lawsuit against the power producers in the Midwest, arguing that their coal-fired plants were contributing to climate change.

Environmentalists said they took the issue to court because Congress was not likely to take up the climate change issue and set limits on greenhouse gasses. They won a significant preliminary victory when the U.S. appeals court in New York cleared the suit to proceed.

But the power industry, the U.S. Chamber of Commerce and the Obama administration joined in urging the high court to stop the lawsuit. They argue that the global warming issue and limits on carbon emissions should be decided by Congress and the White House, not by judges acting on lawsuits.

Justice Sotomayor has recused herself, since at the time she was nominated to the Supreme Court, she was a member of the Second Circuit panel considering this case.

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