Dawn Johnsen, the law professor who was forced in April to withdraw her nomination to head the DOJ’s Office of Legal Counsel, has written a forceful op-ed in today’s Washington Post. Johnsen, an exceedingly qualified candidate who was the victim of a fifteen month Republican obstruction effort, writes that the President and Senate need to quickly install a new OLC head—and to pick someone who will lead the office in an honest and nonpartisan way:
In 2004, the leak of a controversial memo on the use of torture catapulted the Justice Department's Office of Legal Counsel into the spotlight. Fallout and debate continue, including in the context of my nomination -- withdrawn this spring -- to head this office. While attention understandably is focused on confirming the president's Supreme Court nominee, the OLC remains, after six years, without a confirmed leader.
It is long past time to halt the damage caused by the "torture memo" by settling on a bipartisan understanding of the proper role of this critical office and confirming an assistant attorney general committed to that understanding.
There is no simple answer to why my nomination failed. But I have no doubt that the OLC torture memo -- and my profoundly negative reaction to it -- was a critical factor behind the substantial Republican opposition that sustained a filibuster threat. Paradoxically, prominent Republicans earlier had offered criticisms strikingly similar to my own. A bipartisan acceptance of those criticisms is key to moving forward. The Senate should not confirm anyone who defends that memo as acceptable legal advice.
Johnsen is right that the OLC should be led by a fierce advocate of the rule of law—someone like Johnsen herself. We hope that the debate over the next OLC nominee will, unlike the last debate, reflect the importance of this qualification.
As BP begins a risky attempt to stem its still-leaking oil rig in the Gulf of Mexico, and oil starts to lap against the shores of the Gulf Coast, lawsuits against the oil giant have begun. The devastating oil spill has already surpassed the size of the 1989 Exxon Valdez disaster, and the litigation that follows it is sure to be just as contentious and lengthy. Two years ago, 19 years after the Valdez spill, the tens of thousands of victims of the disaster saw their case end up before the Supreme Court…and the Court gave Exxon Mobil a huge handout. While the facts this time are different and the legal issues won’t be exactly the same, if their case ends up before the high court, victims of the BP spill will have a legitimate reason to worry –the Roberts Court has displayed a clear willingness to go out of its way to keep individual citizens from holding big oil accountable.
In 1989, an Exxon oil tanker carrying over a million barrels of crude oil crashed off the coast of Alaska, spilling at least ten million gallons of oil into the Prince William Sound. The spill destroyed wildlife habitats and the livelihoods of fishermen up and down the Northwest coast. Those affected by the spill entered into years of litigation to try to recover from Exxon some of what they had lost. In 1994, a jury awarded the 32,677 plaintiffs in the case $5 billion in punitive damages. An appeals court judge halved the amount to $2.5 billion.
[E]ven this pared-down judgment was way too much for Justices Roberts, Kennedy, Thomas, Souter and Scalia. In 2008, this bloc reduced the punitive damage award from $2.5 billion to $507.5 million. Indeed, the only thing that stopped them from deleting the award altogether was that they were one vote short of being able to find that a corporation is not responsible for the reckless acts of its own managers acting in the scope of their employment.
What the 5-justice majority found, over the objections of dissenting liberal justices who accused them of legislating from the bench, was that it would impose in maritime tort cases a 1-1 ratio between compensatory and punitive damages—a formula found nowhere in the statute and essentially pulled out of a hat made by a big corporation. In dissent, Justice Stevens chastised the majority for interpreting the "congressional choice not to limit the availability of punitive damages under maritime law" as "an invitation to make policy judgments on the basis of evidence in the public domain that Congress is better able to evaluate than is this Court."
But Exxon, which amazingly ended up making money on the spill because of the resulting increase in oil prices, got its way with a corporate-leaning Court and ended up paying punitive damages equal to a day or two of company profits.
Not surprisingly, the lawsuits from those who are losing their livelihoods have begun. As of May 21, more than 130 had been filed.
Lawsuits against BP will no doubt involve millions, and probably billions of dollars in both compensatory and punitive damages. While compensatory damages are essential to helping victims recover from a disaster of this size, punitive damages serve to dissuade the company and others like it from acting recklessly in the future. The Roberts Court’s willingness to invent a rule capping punitive damages against Exxon doesn’t bode well for anyone hoping to hold BP accountable for this disaster and to make sure it doesn’t happen again.
The Court has a responsibility to ensure that ordinary people get treated fairly, even when pitted against big corporations—but the current Supreme Court has made it clear that we can’t always count on that.
This disaster is a tragic reminder of why we need Justices who won’t favor the interests of the powerful over the rights of ordinary citizens.
A CNN/Opinion Research Corporation survey released Tuesday indicates that 78 percent of the public supports allowing openly gay people to serve in the military, with one in five opposed.
"Support is widespread, even among Republicans. Nearly six in ten Republicans favor allowing openly gay individuals to serve in the military," says CNN Polling Director Keating Holland. "There is a gender gap, with 85 percent of women and 71 percent of men favoring the change, but support remains high among both groups."
And congressional leaders aren’t sure if they can get the votes to repeal the discriminatory Don’t Ask, Don’t Tell policy. It’s another stark example of Washington politicians lagging far behind their constituents when it comes to gay rights.
But, as the Washington Post’s Ruth Marcus points out, there was a time not long ago when Republican Senators were faced with someone with views very similar to Paul’s–and, instead of distancing themselves from him, tried to put him on the Supreme Court.
Rand Paul and Robert Bork, Marcus writes, “are ideological soul mates.” For those whose perspective on the rejected Bork nomination is that it was such a skewed pummeling that it led to the creation of a new verb -- Borking -- here’s a reminder. Writing in The New Republic in 1963 about the proposed civil rights act, Bork inveighed against a principle of "unsurpassed ugliness” -- not of racism, mind you, but of the notion of compelling private property owners to stop discriminating. Sound familiar? The next year, Bork lit into the proposed bans on discrimination in both employment and public accommodations, saying they would “compel association where it is not desired,” and citing “serious constitutional problems” with the measure.
Bork renounced those views publicly in 1973, during his nomination for solicitor general. Paul’s about-face took less than 24 hours.
It might seem unfair to bring up a 23-year-old nomination battle in the debate over today’s policies, but some in the Republican Party have done just that, using Bork’s Senate defeat as a recurring Supreme Court talking point.
The New York Times ran a powerful editorial today on the stark contrast between the courage of activists fighting for fair and comprehensive immigration reform and the somewhat less courageous behavior of those in power in Washington.
They highlight the story of four students—three of them undocumented immigrants who came to the country as children— who were arrested Monday for staging a sit-in in Sen. John McCain’s Tucson office to advocate for the DREAM Act.
Who else has shown such courage in the long struggle for immigration reform? Not Mr. McCain, who ditched his principled support of rational immigration legislation to better his odds in a close re-election campaign against a far-right-wing opponent. Not President Obama, who has retreated to lip service and vagueness in his calls for reform. Not his administration. The Justice Department has stood by as a civil-rights coalition — the American Civil Liberties Union, Maldef, the N.A.A.C.P., the National Day Laborer Organizing Network and others — has swiftly sued to block the Arizona law.
Other supposed defenders of immigrants, Democrats in Congress, have lost their voices. Senators Charles Schumer, Robert Menendez and Harry Reid, mindful of November elections and frustrated Latino voters, have unveiled a blueprint for immigration reform that parrots Republican talking points about clamping down the southern border and treating the undocumented as a swelling tide of criminals.
Good immigration reform needs a good bill, and the administration and the president and Democratic leaders haven’t yet offered or convincingly fought for one. The fight for reform is stalled. It could be simple acts of protest that ignite a fire. Half a century ago it was young people, at lunch counters and aboard buses across the South, who help galvanize the movement for civil rights, and to waken more powerful elders to injustice.
Sinema, recipient of last year’s Young Elected Officials Network Barbara Jordan Leadership Award, has been a strong voice in opposition to Arizona’s new law, and in support of real, comprehensive immigration reform. You can watch her debate Maricopa County Joe Arpaio on CNN here, and discuss the new law with Keith Olbermann here.
A panel this afternoon discussed local activism to fix the Supreme Court’s decision to grant corporation’s huge power to influence elections—and the outsized impact that corporate money can have on state- and local-level campaigns with small budgets.
Jeffrey Clements, and attorney who helped found the advocacy group Free Speech for the People, brought up the case of Montana, whose nearly hundred-year-old ban on corporate campaign contributions and expenditures is being challenged in court in the wake of Citizens United. In 2008, the average winning state senate candidate in the state spent just $17,000. An infusion of corporate cash into the state's elections would have a dramatic impact, Clements argued.
Massachusetts State Senator Jamie Eldridge, a member of the YEO Network, came to the issue with an interesting perspective—he is the only “Clean Elections” candidate to have ever won office in Massachusetts (he first ran for a seat in the state House of Representatives one year in which Massachusetts had a Clean Elections public financing program).
“When I first ran, I was entirely publicly financed,” he said, “I didn’t have to raise money and could go door-to-door talking to voters about what they cared about.”
State elections with unlimited contributions from corporations and individuals aren’t uncharted territory—six states currently have no contribution limits at all—but it will be interesting to see how campaigns in states like Montana change if the rules that candidates have been playing by for decades disappear.
People For and a coalition of progressive groups will run a full page ad in the Washington Post next week, criticizing the Supreme Court’s increasing deference to corporate interests. The ad, which pictures judicial robes embroidered with the logos of large corporations and asks “Is the Supreme Court Corporate America’s newest subsidiary?,” was released today.
The corporate sympathies of the current Supreme Court majority—displayed in cases like Citizens United v. FEC and Ledbetter v. Goodyear Tire Company—have shaken Americans across the political spectrum. Last month, a People For report documented the Court’s 10-year pro-corporate trend, and the emergence of a “corporate bloc” on the Court.
The ad lays out some of the most startling rulings of the Roberts Court:
The United States Supreme Court was founded to protect the American people, not American big business.
Yet recent rulings have allowed corporations to get away with paying women less than men, discriminating against the rights of older workers, dodging liability for faulty medical devices, ducking the Clean Water Act and avoid paying damages for the Exxon Valdez oil spill.
Most alarmingly, the Court has also just declared that corporations have the same rights as people, with unlimited rights to pour money into electing corporate candidates who will protect their interests.
A poll commissioned by the groups that released the ad—People For, Alliance for Justice, and MoveOn.org—found that the majority of Americans agree that the Supreme Court favors big corporations over individuals, and want a new Justice who will not be part of that trend.
Late Friday, Defense Secretary Robert Gates and Joint Chiefs Chairman Admiral Mike Mullen urgedCongress to hold off on repealing Don’t Ask, Don’t Tell until the Pentagon completes its policy review. This was followed by a White House statement (cited by Washington Post and other media outlets) deferring to Secretary Gates.
Alexander Nicholson, a former Army interrogator discharged under Don't Ask, Don't Tell and current Executive Director of Servicemembers United, believes that the push for repeal is not the real problem.
This letter from Secretary Gates is a significant cause for concern for those who truly respect and support the gay military community.
PFAW agrees that careful thought must be given to a repeal of Don’t Ask, Don’t Tell. But like Alexander Nicholson, we believe just as strongly that legislative action does not depend on the actions of the DOD Working Group. The Working Group was commissioned to study how to repeal Don’t Ask, Don’t Tell – not whether it should be repealed. That’s the point on which Congress wants to act. They could do so as early as this month when work begins on the DOD Authorization bill. Congress should proceed now so that we are ready for implementation by December 1 – the deadline for completion of the Working Group report.
Aubrey Sarvis, Army veteran and Executive Director of Servicemembers Legal Defense Network, described this “fierce urgency of now” in his response.
As a result of the Commander in Chief's decision to defer to Secretary Gates' wishes and timeline, gay service members will continue to be treated as second class citizens, and any sense of fairness may well have been delayed for yet another year, perhaps for another decade.
Joe Solmonese, President of the Human Rights Campaign, continues.
[F]ailure to act this year will, without a doubt, continue to send the message to the thousands of gay and lesbian Americans serving their country in silence that their views and concerns, and the impact on them and their families, do not matter to the military leadership, including their Commander-in-Chief.
Advocates will not rest in their push for an end to LGBT discrimination and muzzled military service. In fact, we’re just one week away from the National Veterans Lobby Day. Hundreds of veterans will come to Capitol Hill to stand up and speak out for the end of Don’t Ask, Don’t Tell.
Overall, two-thirds of Americans say they are comfortable with Obama selecting the nation's next justice, including nearly a third of Republicans. That is comparable with a Fox News poll conducted last May before the president chose Sonia Sotomayor to be his first nominee to the court.
The poll finds 65 percent of Americans -- 63 percent of registered voters -- comfortable with Obama making the choice. In June 2005, a Fox poll found 54 percent of registered voters comfortable with President George W. Bush choosing a replacement for the retiring Justice Sandra Day O'Connor.
Back in January, Republican pollster and communications strategist Frank Luntz distributed a strategy memo instructing Republican officials how to obstruct Wall Street reform while confusing the American public about who was looking out for their interests. Among Luntz's key recommendations was to tie reforms to big bank bailouts. There's the 180 degree spin from reality. One of the key goals of Wall Street reform legislation being considered in both houses of Congress is preventing the need for such bailouts by clamping down on the kind of overly risky behavior that led to the financial system meltdown. The legislation has been designed to create mechanisms to shut down failing institutions in an orderly way to prevent the need for expensive improvised bailouts in the future.
So, to be clear, the purpose of the Bailout Lie was to let Republicans get away with stopping reforms that would crimp the style of Wall Street speculators while at the same time convincing tea party activists and Main Street Americans that it was somehow the Democrats doing Wall Street's bidding. That's a big bluff. But Senator McConnell is nothing if not audacious in putting the Bailout Lie to work.
An ABC News/Washington Post poll this week showed that a majority of Americans, including over a third of Republicans, actually back the legislation’s so-called “bailout” provision—a requirement that banks contribute to a fund that would cover the cost of taking over and breaking up any failing financial institutions. Two-thirds of those surveyed supported the bill’s increased regulation of Wall Street.
While the GOP’s Wall Street Reform talking points are clearly reaching Republican Senators, it’s unclear how much of an effect they’ll have on a public that’s fed up with the current lax oversight of the financial industry. Perhaps it’s time GOP Senators started consulting their constituents before their party’s spin doctors.
Linda Greenhouse, writing for the New York Times Opinionator blog, rightly points out that Arizona's new anti-immigrant law quite literally creates a new crime of "breathing while undocumented" due to a provision that someone lacking authorization to be in the country is "trespassing," even on public land.
Greenhouse wonders what Arizonan libertarian and conservative icon Barry Goldwater would have to say about the law, writing, "Wasn’t the system of internal passports one of the most distasteful features of life in the Soviet Union and apartheid-era South Africa?"
She discusses possible responses to the law and importantly notes that even though the law might seem blatantly unconstitutional to many:
[Her] confidence about the law’s fate in the court’s hands is not boundless, however. In 1982, hours after the court decided the Texas case [Plyler v. Doe, which overturned a Texas law depriving undocumented immigrant children of public education], a young assistant to Attorney General William French Smith analyzed the decision and complained in a memo: “This is a case in which our supposed litigation program to encourage judicial restraint did not get off the ground, and should have.” That memo’s author was John G. Roberts Jr.
Yesterday’s confirmation of Chris Schroeder to head the Office of Legal Policy was a welcome break in the gridlock that GOP senators have created over President Obama’s Executive Branch nominees. (Though, as has become the pattern, they made sure Schroeder’s confirmation was held up for nearly a year before allowing it to easily pass in a 72-24 vote).
The GOP’s recent unprecedentedabuse of procedural stalling tactics has Senators and observers scrambling for ways to amend filibuster rules to get the Senate working again.
In the Washington Post this morning, Ruth Marcus details her ideas on reforming the filibuster while maintaining the power of the minority to have a strong voice in the Senate, and Ezra Klein outlines the enormous time-wasting potential of the current rules.
And Chuck Schumer, chairman of the Senate Rules Committee, has launched a (sure to be smash hit) series of hearings on filibuster reform. At this morning’s hearing, there was some especially interesting testimony from the Brookings Institution’s Sarah Binder, who debunked the widely held idea that the Founding Fathers meant the Senate to be deliberative to the point of inaction.
The filibuster clearly has worthy uses (as anyone who’s seen Mr. Smith Goes to Washington knows), but it’s clearly wrong to imply that the Senate’s inventors intended the sort of obstruction that we see today.
Stanley Bach, a former legislative specialist at the Congressional Research Service who testified at this morning’s hearing, put it this way: “A useful starting point [to discussions of reform] is to ask whether the usual purpose of filibusters is more balanced legislation or no legislation at all.”
These days, the answer to that seems pretty clear.
When the Supreme Court decided this year to open the electoral process to floods of money from corporate interests, it provoked a vehement public backlash. But Citizens United v. FEC was just the tip of the iceberg of a decade of rulings—some high-profile and some less noticed— made by a Court that has been disturbingly deferential to corporate interests. A new People For the American Way Foundation report outlines the rise of the corporate court under Chief Justice Rehnquist and the new life it has taken on in the Roberts court.
Americans across the spectrum have been startled and appalled by the Citizens United decision, which will "open the floodgates for special interests—including foreign companies—to spend without limit in our elections," as President Obama said in his 2010 State of the Union Address. According to a Washington Post nationwide poll, more than 80% of the American people reject the Court's conclusion that a business corporation is a member of the political community entitled to the same free speech rights as citizens.
Yet, the Court's watershed ruling is the logical expression of an activist pro-corporatist jurisprudence that has been bubbling up for many decades on the Court but has gained tremendous momentum over the last generation. Since the Rehnquist Court, there have been at least five justices—and sometimes more—who tilt hard to the right when it comes to a direct showdown between corporate power and the public interest. During the Roberts Court, this trend has continued and intensified. Although there is still some fluidity among the players, it is reasonable to think of a reliable "corporate bloc" as having emerged on the Court.
John Perr wrote what I consider a must-read post over at Crooks and Liars about how Republicans, when in power, fail miserably at governing and seem to do their best art destroying our country. The results of their policies -- economic or otherwise -- inevitably force them out of office, but last long enough that they are able to pin the woes on their democratic successors and make "Government" the scapegoat for all the nation's problems, with particular anger being directed at the then-incumbents: Democrats.
That Americans' trust in government has plummeted to near-record lows isn't a surprise. After all, as the Pew Research Center documented, distrust of Washington is an American tradition, one which tends to rise and fall inversely with the economy. But the spike in anger towards the federal government, a fury which doubled to 21% since 2000, points to a potential midterm bonanza for the GOP. All of which suggests that the Republican Party whose anti-government rhetoric and incompetence in office helped kill trust in government may now be rewarded for it.
By now, the Republican recipe for badmouthing government into power should be all too familiar. First is to endlessly insist that, as Ronald Reagan famously said, "Government is the problem." Second is the self-fulfilling prophecy of bad government under Republican leadership, as the Bush recessions of 1991 and 2007, the Hurricane Katrina response, the Iraq catastrophe and the transfer of federal oversight powers to the industries being regulated all showed. Third, when the backlash from the American people inevitably comes as it did in 1992 and 2008, attack the very legitimacy of the new Democratic president they elected. Fourth, turn to the filibuster and other obstructionist tactics to block the Democratic agenda, inaction for which the incumbent majoirty will be blamed. Last, target the institutions and programs (Social Security, Medicare, the IRS) which form the underpinnings of progressive government.
Senate Minority Whip Jon Kyl (R-Ariz.) invoked Supreme Court Chief Justice John Roberts’s name in a Senate floor speech Tuesday warning Obama not to nominate someone who would be an automatic vote against corporate interests. He made it clear such a nomination could provoke a GOP filibuster.
“The big corporation might have the right law and facts in a particular case,” said Kyl, who noted that Roberts in his own confirmation hearing said that in a dispute between a “big guy and little guy” he would vote for whoever had the law behind him.
“You don’t go on to the bench [saying], ‘I’m always going to be against the big guy,’ ” said Kyl.
Kyl’s straw man argument not only misconstrues Obama’s words, but shows how out of touch his party has become with the American people. A People For poll in February found that a full 78% of Americans—from across the political spectrum— believe that corporations should be limited in how much they can spend to influence elections, with 70% believing that corporations already have too much influence. And asked whether President Obama should nominate a Supreme Court justice who supports limiting corporate spending in elections, 69% said yes.
And just this week, a candidate running on a platform that included a Constitutional Amendment to overturn Citizens United won a resounding victory in a congressional special election in Florida.
Given that kind of evidence, Senator Kyl might want to rethink his decision to make himself a champion of corporate interests over the rights of ordinary Americans.
The threat of filibuster is holding up Senate business more than ever before, and Senators are at odds over whether to do away with or amend the rule that’s causing so much trouble.
People for Executive Vice President Marge Baker joined a panel yesterday at American University’s Washington College of Law to discuss what can be done to loosen up the gridlock in the deliberative body.
Baker, Washington Post columnist Ruth Marcus and Cato Institute scholar John Samples discussed several proposals that have been put forward to fix the filibuster problem, from limiting lawmakers to a “one bite” rule that would not permit filibusters of both motions to proceed to a bill as well as on the merits of the bill itself to reducing the number of votes needed to invoke cloture to scuttling the rule altogether. But they kept coming back to one point: what’s causing the gridlock isn’t the filibuster rule itself but its increasing use as an obstructionist tactic.
“The problem is not its existence; the problem is its overuse,” Marcus said.
“It really is a problem. It really is causing government to break down,” Baker said, “The cloture vote is being used to an unprecedented degree, and the degree to which it’s being used primarily for obstruction, is really a serious problem.”
Here’s a look at the rate of cloture filings in the past 90 years:
And a look at filibuster threats to executive nominees from 1949 through March of 2010:
Senators Jeanne Shaheen and Tom Harkin have introduced a measure to phase out the filibuster in a series of steps, eventually ending in a Senate where votes can pass with a simple majority. Senator Tom Udall has proposed letting the Senate adopt new rules--and make a choice about the filibuster--at the start of every new Congress. But the solution may lie not in taking away the power of the minority to have some leverage in matters that are truly important (nobody likes that idea when they’re in the minority), but in limiting the situations where the filibuster can be used. Marcus suggested taking the option off the table for executive nominations, limiting its use in judicial nominations, and limiting the minority to one filibuster per law. Baker suggested changing the rule that provides for 30 hours of post-cloture debate before a matter can be voted on, which would save enormous time, particularly where the result is a foregone conclusion.
Though, whatever the form that filibuster rules take, I’m pretty sure we can count on the GOP to come up with creative ways to keep on stalling business.
Baker, Samples, Marcus, and moderator William Yeomans at American University's Washington College of Law
Mere days after rewriting the history of the Civil War - turning it into a war for independence with nothing to do with slavery - Virginia Governor Bob McDonnell has done it again. But this time, instead of denying people's humanity, he's "just" making it a lot harder for them to vote.
According to the Washington Post, McDonnell plans to place a significant new burden in front of non-violent felons seeking to have their voting rights restored:
McDonnell will require the offenders to submit an essay outlining their contributions to society since their release, turning a nearly automatic process into a subjective one that some say may prevent the poor and less-educated from being allowed to vote. ...
McDonnell's administration said the essay requirement is designed to put a human face on each applicant and to help staff members better understand each person's situation.
And if you can't read and write well? Or if you're intimidated by things like essays? Or if you just can't express yourself well in writing? You're out of luck.
Even worse, restoration of the right to vote will not be based on a set of objective criteria, but will instead be based on whether McDonnell or some designated official thinks the applicant is worthy of the right to vote:
In coming weeks, McDonnell will start requiring nonviolent offenders to write a letter to him explaining the circumstances of their arrest; their efforts to get a job, seek an education and participate in church and community activities; and why they believe their rights should be restored. Some applicants already have been notified that letters will be required.
In a democracy, the right to vote should never depend on whether the governor finds you worthy of that right. It is not the place of government to make sure that only the "right" type of people vote.
It seems that every day, Virginia is becoming a more and more frightening place to live.
With public attention now focused on the selection of a new Supreme Court Justice, it might be easy to forget the federal judicial appointments that get a lot less press, but which can also make a whole lot of difference in the lives of ordinary people.
Steven Pearlstein, a business columnist for the Washington Post, wrote a great column this morning—just before the news of Justice Stevens’ retirement broke—about how the U.S. Court of Appeals for the D.C. Circuit has been instrumental in slowing down or stopping altogether important regulations of drug companies, mutual funds, telecommunications providers, and other industries.
There's a lot of talk these days about how Washington has become dysfunctional. While most of the focus has been on Congress, the inability to perform even basic functions also extends to the agencies that are charged with protecting workers, consumers and investors. Unfortunately, it often takes a global financial crisis or a deadly coal mine explosion to remind us of the serious consequences of regulatory failure.
Much of the blame belongs with regulators who have been captured by the industries they are meant to oversee or have been swept up in the general political drift toward deregulation. But, as we were reminded by a case this week involving the Federal Communications Commission, another big culprit is the U.S. Court of Appeals for the District of Columbia Circuit, which over the past decade has intimidated, undermined and demoralized the regulatory apparatus.
Pearlstein singles out conservative judges whose regulatory reluctance has kept the Food and Drug Administration for ensuring the speedy availability of generic drugs, and the Federal Trade Commission from disciplining a tech company monopolist.
These cases, Pearlstein writes, “are the means by which a new breed of judicial activist is quietly undermining the reach and the effectiveness of government.”
The leaders of this new breed were, unsurprisingly, nominated by former Presidents George W. Bush and Ronald Reagan. Yet another reminder that judicial nominations at all levels make up one of any president’s most enduring legacies.
In the weeks since the Supreme Court handed down its decision in Citizens United, plenty of people (including, ahem, us) have spoke out against the decision. But one critic of the ruling brings a particularly distinguished resume.
Sandra Day O’Connor, in addition to being a former Associate Justice on the Supreme Court, has emerged as one of the most vocal and persistent critics of the ruling and of the dangerous effects of unlimited money in politics. Despite her conservative credentials, though, her stance shouldn’t come as much of a surprise. After all, she wrote one of the decisions that Chief Justice Roberts and co. so casually tossed aside.
In speeches and interviews since the 5-to-4 decision came down on Jan. 21, O'Connor has highlighted the decision's impact on precisely the political arena where its corrupting influence and corrosive effects on public trust could be deepest: the races judges themselves must run to keep their seats on state courts.
O'Connor's barnstorm tour deploring the ruling and defending judicial independence continued last week with an audience of law students, faculty, and judges in her home state of Arizona. Earlier, at Georgetown University Law Center in Washington, she chastised the court majority for signaling "that the problem of campaign contributions in judicial elections might get considerably worse and quite soon."