Earlier this week, People For the American Way Foundation hosted -- and I moderated -- a panel at the National Press Club to discuss what the election of Barack Obama means for the future of the Supreme Court and what kind of justices we should be fighting for. The event's title, "Beyond the Sigh of Relief," says a lot in itself, and it's fantastic that our conversation could focus on the prospects for a return to justice on the High Court rather than strategizing about how to forestall complete disaster.
I hope to have video of the full discussion to share with you in a week or two. The next day, Maryland State Senator and Constitutional Law Professor Jamin Raskin (who was on the panel) and I were on Pacifica Radio in a very substantive joint interview on the same topic. You can listen to that segment here.
Sen. Raskin is also the director of the Marshall-Brennan Constitutional Literacy Project and shares my passion for civic education -- I've known and worked with him for years, going back to my time at Justice Talking. The other phenomenal panelists were: Julius Chambers, former director of the NAACP Legal Defense Fund and founder of Ferguson Stein Chambers Gresham & Sumter PA; John Payton, President, NAACP Legal Defense and Educational Fund; and one of the finest Court journalists out there, Dahlia Lithwick, Senior Editor of Slate.
Any conversation about the future of the Court needs to start with acknowledging the voter mandate Obama received on Election Day to appoint judges with a strong commitment to constitutional rights and values. Redefining the conventional wisdom that the Supreme Court is an issue that only the Right Wing cares about, this time it was Obama voters who said that the Court was extremely important to them.
Here were a few quick highlights from the rest of the event:
The stimulating conversation left me feeling optimistic about advancing the constitutional principles that have been under attack from right-wing organizations and the Bush administration. After eight years of seeing right-wing ideologues nominated to the federal bench, there is immense opportunity to restore constitutional values. The only thing standing in our way is the Right and the senators who are already gearing up to fight good nominees -- senators like John Kyl (R-AZ), who promised a filibuster of any Court nominee he deemed too liberal... only three days after the election.
People For the American Way will be ready for Sen. Kyl, other right-wing senators and the Right's media echo chamber. Together, we'll make sure President Obama fulfills his mandate to give Americans the Supreme Court justices they deserve.
We are suspending negotiations, effective immediately, because to do so otherwise would reduce our moral standing and the long-term Senate Democratic commitment to reform and to change. We believe that ultimately, we must do what is right for the people of the State of New York. Furthermore, real reform cannot and should not ever include limiting the civil rights of any New Yorkers. Those issues must be part of the legislative process.
-- NY State Senate Democratic Leader Malcolm A. Smith
ALBANY, N.Y. - Senate Democratic leader Malcolm Smith said Wednesday any deal with three dissidents to secure his party's hold on the chamber majority is officially off.
Smith said he has the support of the Democratic Caucus and has ceased negotiations with the three, Sen. Ruben Diaz Sr. and Sen.-elect Pedro Espada Jr., both of the Bronx, and Sen. Carl Kruger of Brooklyn. Their support would give the party a 32-30 majority beginning Jan. 1 after decades of Republican control.
"We're prepared to wait if we have to to come into the majority," Smith said. He was flanked by senators Neil Breslin of Albany and Liz Krueger of Manhattan when he made the announcement.
Smith said the three renegades were motivated by "personal interests." He also said he wouldn't subject civil rights issues to negotiation, referring to a proposal backed by many Democrats to legalize gay marriage.
I've read more reports and looks like what was happening was three senators holding the Democratic majority hostage for their own interests, and in the process, not just obstructing the potential for marriage equality, but an entire progressive agenda which has been blocked for years by a Republican-controlled New York Senate. Even if this means the Democrats lose the majority they won in last month's election, it was the so-called "Gang of Three" who were really trying to thwart the will of New York voters.
In Washington, we're hearing rumblings that the Right may be looking to start a fight over Attorney General nominee Eric Holder, whose confirmation hearing will be in early January. It's tough to imagine the kind of audacity it would take to challenge Holder's nomination after Attorneys General Ashcroft and Gonzales.
After eight years of being dominated by politicization, cronyism and extremism, the Department of Justice is in desperate need of a good housecleaning. The Department, like the Attorney General, is supposed to defend the rule of law and Americans' constitutional rights. But under the Bush administration, the DOJ has been used as a weapon against constitutional values, used to fight the administration's ideological and political battles.
In the wake of 9/11, John Ashcroft's Justice Department led the Bush administration's relentless assault on civil liberties. The DOJ was on the forefront of the draconian expansion of surveillance and police powers, and contributed heavily to post-9/11 era of extreme government secrecy. Career lawyers at the DOJ were subtly -- and not so subtly -- pushed out in favor of attorneys more politically and ideologically aligned with the administration. The Civil Rights Division was completely politicized and instead of using its resources to protect voters' rights (by enforcing the Voting Rights Act among other things), the DOJ waged an attack on voting rights by supporting disenfranchising policies like Georgia's restrictive voter ID law. The Department also exploited the 'widespread voter fraud' myth for politically motivated witch hunts -- part of a larger trend of selectively targeting political and ideological opponents for investigation and prosecution.
And how can we forget the Gonzales era at the DOJ! The Attorney General is supposed to be the people's lawyer, but Gonzales was more the president's bag man. The problems that existed under Ashcroft continued or got worse. As more and more news came out about the NSA's illegal warrantless spying on Americans, the torture of U.S. detainees, legally questionable military tribunals and other subversions of the rule of law, we found out that the DOJ had expressly signed off on these administration policies and in some cases even supplied the legal and intellectual underpinning out of the Department's Office of Legal Counsel (OLC). And when a scandal broke over the firing of U.S. attorneys, it became clear exactly how politically motivated hiring and firing practices had been at the DOJ, which evidently was staffed with a disproportionate number of graduates of Pat Robertson's law school (including one of the people tasked with the hiring/firing)!
Attorney General Mukasey has been arguably better than his two predecessors, but following the records of Ashcroft and Gonzales, that's not very hard. Eric Holder is a stellar choice: smart, capable and able to lead the DOJ in a new direction. But he will have his work cut out for him and he'll need help from people like you and me. First, we need to make sure he's confirmed, and that could mean a campaign to defeat whatever attacks right-wing senators throw at him. Then, because of the politically skewed hiring practices, he's going to need the support of the people to make dramatic changes at one of the government's most important agencies.
For eight years, the Department of Justice -- a government agency with a rich history of enforcing civil rights and the rule of law -- has served the worst ideological and partisan impulses of the Bush administration. The era of overzealous ideologues and partisans like Ashcroft and Gonzales is coming to an end.
But now it's time to dig in our heels and do our part to put the justice back in the Department of Justice. I hope you don't mind if I call on you for help in the coming months.
A Washington Post article today points out that even not counting the two yet-undecided Senate contests in MN and GA, the Democrats could have the filibuster-proof 60 votes to move several key pieces of legislation by picking up a few Republicans. The article highlights several possible bills - two of which are civil rights bills of particular interest to People For the American Way.
First up: DC Voting Rights. The right of voters to be fully represented in Congress is paramount to the health of our democracy. Shamefully, the institutional disenfranchisement of Americans is probably most egregious in our nation’s capital, where 600,000 taxpayers have a congressional representative with no voting power.
Voting rights in Congress for the District of Columbia is another example. Legislation to expand the House of Representatives from 435 to 437 seats by giving the District and Utah an additional vote each were three votes shy of the 60 needed to end a filibuster in September 2007. Eight Republicans voted with the Democratic majority, which is 51 to 49 and includes two independents.
In addition, the Lilly Ledbetter Fair Pay Act - for which People For the American Way was far out front in leading the fight - could have the support it needs to correct a terrible Supreme Court decision (a decision supported by both of President Bush's right-wing Supreme Court nominees, Chief Justice Roberts and Justice Alito).
In April, 50 Democrats and six Republicans supported legislation that would have amended the 1964 Civil Rights Act by allowing more time for workers to file discrimination complaints. Five new Democrats will be replacing Republicans who opposed the legislation named after Lilly Ledbetter, the female employee who lost her suit against Goodyear Tire and Rubber over discrimination claims. The Supreme Court ruled that Ledbetter should have filed her claim within six months of the alleged incidents.
At the Vice Presidential debate last night, Joe Biden referenced his leadership against Robert Bork’s nomination to the Supreme Court.
And it didn't take me long -- it was hard to change, but it didn't take me long, but it took about five years for me to realize that the ideology of that judge makes a big difference.
That's why I led the fight against Judge Bork. Had he been on the court, I suspect there would be a lot of changes that I don't like and the American people wouldn't like, including everything from Roe v. Wade to issues relating to civil rights and civil liberties.
Biden is entirely correct. The ideology of a judge matters immensely. Right wing judges who bring a political agenda to the courts have no business being nominated or confirmed.
Of course, Joe Biden wasn’t alone in leading the fight against Bork. People For the American Way led the campaign in the public arena, including this ad, narrated by Gregory Peck.
The Supreme Court issued a unanimous opinion today by Justice Thomas in Sprint v. Mendelsohn, an employment discrimination case in which PFAWF had joined eleven other civil rights groups in filing an amicus curiae brief in support of the plaintiff-employee, as earlier discussed on Court Watch here.
On Monday, December 3, the Supreme Court heard oral argument in Sprint v. Mendelsohn, an employment discrimination case brought by Ellen Mendelsohn, a former Sprint employee who believes that she was unlawfully selected for a company-wide reduction in force because of her age. At trial, the judge prohibited Mendelsohn from presenting the testimony of other terminated workers who would have testified to age-related bias within the company unless those workers had the same supervisor that Mendelsohn had had. Mendelsohn lost at trial, but the court of appeals reversed, holding that the testimony of the other employees should have been allowed.
Today, the Supreme Court set oral argument in the Indiana voter ID case for 10 a.m. on Wednesday, January 9, only 12 days after briefing is completed in this case. PFAWF has joined with many other civil rights groups, academics, and election officials in arguing that the restrictive voter ID laws imposed by Indiana disenfranchise hundreds of thousands of eligible voters, and disproportionately affect minorities, students, elderly, women, and the poor, while doing nothing to enhance the integrity of elections. A decision is expected by the end of the term in June.
As PFAWF has previously noted on Court Watch, the Supreme Court this term will be hearing an important case challenging the constitutionality of Indiana's restrictive voter ID law, which unnecessarily burdens the rights of eligible voters, particularly minorities, the elderly, students, women, and the poor, without justification. On November 13, PFAWF joined other civil rights organizations in filing an amicus curiae brief in the Supreme Court in support of those challenging this law.
On October 19, 2007, PFAWF joined 11 other civil rights groups in filing an amicus curiae brief in Sprint v. Mendelsohn, an employment discrimination case pending in the Supreme Court and one of the cases that we highlighted in our preview of the Court's term because of its importance to the right of employees who believe that they have been subjected to workplace discrimination to obtain justice in the courts. Other groups joining this brief include the NAACP, MALDEF, the National Women's Law Center, the Asian American Justice Center, and the Puerto Rican Legal Defense and Education Fund, a diverse coalition underscoring the importance of this case to the civil rights community.
TIME magazine’s cover story this week told Americans they don't need to care about the Supreme Court because its decisions don’t make a difference in most people’s lives. That premise is just wrong, as the letter we submitted to TIME makes clear (see below). It’s also pretty astonishing to have that article appear the very same week that the GOP presidential candidates will appear before right-wing activists and the so-called "Values Voter Summit" and enthusiastically pledge to put more Justices like Roberts, Alito, Scalia and Thomas on the Court — and cement for a generation the right-wing trends that are undermining Americans’ legal rights and protections.