Constitution

More GOP Hypocrisy

Either Senate Republicans have no idea what their co-conservatives are saying and doing, or they are just comfortable with their party’s hypocrisy.

In explaining why he didn’t plan to vote for Kagan, Senator Jeff Sessions said that she lacked judicial restraint, which he described as a potential judge’s most important quality.

He seems to have forgotten to send that memo to his colleague Senator Coburn, who during the hearing begged Kagan to ignore the Constitution, the law and judicial precedent and instead judge based on her opinion of mankind’s natural rights:

PFAW

Sessions Mistakes Kagan for Roberts

GOP Senator Jeff Sessions has taken to the Senate floor to oppose the nomination of Elena Kagan to the Supreme Court. He's accused Kagan of believing that judges can simply ignore the Constitution and replace it with her personal vision of what the law should be.

I think he's confusing Kagan for the five justices who decided in Citizens United that it was gigantic corporations who the founders had in mind when adopting the First Amendment. That's a vision of society totally at odds with what the founders had in mind, to say nothing of what the American people want. It's a vision shared only by extremist pro-business conservative ideologues.

PFAW

The Consequences of Citizens United

Ever since the Supreme Court issued its ruling in the Citizens United case in January, we’ve been warning that the decision would empower corporations to funnel unlimited donations through shadow advocacy groups to directly influence elections.

And guess what? It’s begun.

Just as we (and President Obama) predicted, corporations are already forming and funding political action groups with innocuous sounding names to anonymously support candidates they like and attack candidates they don’t.

For example, the coal industry already has a plan to create a shadow organization to directly advocate against “anti-coal” candidates, obscuring the sources of the organization’s money as they go:

The companies hope to create a politically active nonprofit under Section 527 of the Internal Revenue Code, so they won't have to publicly disclose their activities — such as advertising — until they file a tax return next year, long after the Nov. 2 election.

The U.S. Supreme Court ruled last winter that corporations and labor unions may pour unlimited funds into such efforts to influence elections.

"With the recent Supreme Court ruling, we are in a position to be able to take corporate positions that were not previously available in allowing our voices to be heard," wrote Roger Nicholson, senior vice president and general counsel at International Coal Group of Scott Depot, W.Va., in an undated letter he sent to other coal companies.

Citizens United didn’t just, as some supporters have claimed, allow corporate voices to be heard; it granted corporations unprecedented influence in democratic elections while permitting them to hide their involvement. It’s shadow organizations like this that make one wonder: why are Senate Republicans filibustering the DISCLOSE Act, which would help make corporate involvement in elections more transparent?

Meanwhile, the Minnesota gubernatorial race is providing another textbook example of the problems Citizens United is already causing for our democracy. Taking advantage of their new ability to pour limitless money into elections, several big corporations, including the retail giant Target, donated $100,000 each to a shadow group called Minnesota Forward, which has already produced an ad for Republican gubernatorial candidate Tom Emmer.

Public reaction to Target’s involvement in the race shows just why many politically involved corporations would prefer to remain anonymous:

Emmer is well known as a hardline conservative on social issues. For instance; he opposes gay marriage — a stance that angers some of Target's employees and customers. The company has been known for its gay-friendly employment policies.

Target CEO Gregg Steinhafel tried to address such concerns today with a letter to employees. He wrote, that "inclusiveness remains a core value of our company." That said, he added, "I consider it my responsibility to create conditions in which Target can thrive." And Minnesota Forward has pegged Emmer as the pro-growth candidate.

If the Senate had passed the DISCLOSE Act yesterday, Minnesota Forward would have to be a lot more forthcoming about the sources of its funding. As long as DISCLOSE is filibustered, the group has a lot more leeway for behind-the-scenes political activity. (And, until Congress passes a Shareholder Protection Act, even Target’s shareholders won’t be able to have a say in which political candidates their money is going to support). Voters and consumers have the right to know whether a corporation’s political money is where its mouth is.

Health insurance companies, too, are banding together to take advantage of the newly permissive electioneering rules:

Five of the nation’s largest health insurers are in serious discussions about creating a new nonprofit group and bankrolling it to the tune of about $20 million to influence tight congressional races and boost the image of their industry.

… “The objective is to make the House more accommodating to concerns that have been raised,” says one industry source. “They’re looking at toss-up candidates,” adding that the companies want to “focus resources to influence campaigns.”

Needless to say, like the coal companies, health insurance groups will not have to make their donations to such an advocacy organization public.

A stunning 85% of Americans agree that corporations already have too much influence on our elections; now we have proof that the Citizens United ruling is giving corporations even more power in our democracy. The proliferation of shadow groups doing the dirty work of big corporations makes the task of amending the Constitution to protect our elections from corporate money all the more urgent.

PFAW

Netroots Nation Takes on Citizens United

When we commissioned a poll to gauge what Americans thought about the Supreme Court’s decision in Citizens United v. FEC, we expected to find strong opposition to the idea of unlimited corporate influence in elections. But even we were stunned by how strong that opposition was. 85% of those surveyed disagreed with the Supreme Court’s decision to give corporations unlimited power to spend in elections, and 74% supported a Constitutional Amendment to reverse it.

Today, in a packed Netroots Nation panel organized by People For, activists and elected officials gave their loud and clear endorsement of a Constitutional Amendment to undo Citizens United and return elections to voters.

The audience responded with a standing ovation when panelist Rep. Donna Edwards declared her support for an amendment saying, “Let’s not let anything undo our power over our elections.”

Edwards spoke about the pressure members of Congress face from the health care and energy lobbies, and other powerful interests. “We cannot afford in this country to have elected officials afraid to stand up to that,” she said.

Corporate interests, Edwards said, “are not just trying to influence the process, they want to own the process.”

In Congress, Rep. Alan Grayson added, a corporate lobbyist “can walk into your and office, say ‘I have $5 million, and I can spend it for you or against you.’…this really is a threat to our democracy.”

All of the panelists, including Public Citizen’s Robert Weissman, Lisa Graves of the Center for Media and Democracy, and People For’s Marge Baker, agreed that passing a Constitutional Amendment wouldn’t be easy, but is necessary.

Baker called the Citizens United decision “radical, dangerous, and pernicious,” and emphasized the opportunity it creates for progressives to reclaim the debate over the courts as we work to reverse it.

Citizens United is one of the all time worst Supreme Court decisions in the history of the United States,” Weissman said, “It’s certain that it’s going to be overturned. The question is, are we going to overturn it in the next 4-5 years, or wait 50 years.”

Graves added that Americans have managed to amend the Constitution throughout our history. “They did it with the Pony Express,” she said, “and we have Web 2.0”

Grayson and Edwards have both agreed to sign the Pledge to Protect America’s Democracy, a pro-amendment effort organized by People For and Public Citizen. Urge your candidates and elected officials to do the same, at www.pledgefordemocracy.org.

UPDATE: Netroots Nation has posted a video of the discussion:

PFAW

Rove Returns

One of the greatest of many great parts about the end of George W. Bush’s presidency a year and a half ago was, I thought, that we wouldn’t have to spend our lives worrying about what Karl Rove was up to. How wrong I was.

A new political operation conceived by Republican operatives Karl Rove and Ed Gillespie formed a spinoff group last month that - thanks in part to its ability to promise donors anonymity - has brought in more money in its first month than the parent organization has raised since it started in March.

The new group, called American Crossroads GPS, has been telling donors their contributions would be used to dig up dirt on Congressional Democrats’ “expense account abuses” and to frame the BP oil spill as “Obama’s Katrina.”

… A veteran GOP operative familiar with the group’s fundraising activities said the spin-off was formed largely because donors were reluctant to see their names publicly associated with giving to a 527 group, least of all one associated with Rove, who Democrats still revile for his role in running former President George W. Bush’s political operation.

This kind of shadowy politicking is exactly why we so urgently need measures like the DISCLOSE Act, which would require those who are attempting to influence elections through conduits such as Rove’s group to reveal their contributions. Even more importantly, we need a constitutional amendment to ensure the continuing ability of Congress and the states to regulate in this nefarious arena That’s why we’ve joined with Public Citizen in a campaign to get all candidates for federal office to pledge to work towards amending the constitution.

PFAW

Saying No To Good Government

Although Elena Kagan’s nomination moved out of committee yesterday, almost every Republican committee member voted against her, and most Senate Republicans are expected to follow suite. Why? As an editorial in the New York Times pointed out , Republican opposition to the broad interpretation of the commerce clause in recent decades may partly explain their refusal to support Kagan:

[D]ozens of Senate Republicans are ready to vote against [Kagan], and many are citing her interpretation of the commerce clause of the Constitution, the one that says Congress has the power to regulate commerce among the states. At her confirmation hearings, Ms. Kagan refused to take the Republican bait and agree to suggest limits on that clause’s meaning. This infuriated the conservatives on the Senate Judiciary Committee because it has been that clause, more than any other, that has been at the heart of the expansion of government power since the New Deal.

The clause was the legal basis for any number of statutes of enormous benefit to society. It is why we have the Clean Air Act. The Clean Water Act. The Endangered Species Act. The Fair Labor Standards Act, setting a minimum wage and limiting child labor. The Civil Rights Act of 1964, outlawing segregation in the workplace and in public accommodations. In cases like these, the Supreme Court has said Congress can regulate activities that have a “substantial effect” on interstate commerce, even if they are not directly business-related.

…Make no mistake that such a vote is simply about her, or about President Obama. A vote against the commerce clause is a vote against some of the best things that government has done for the better part of a century, and some of the best things that lie ahead.

In voting against Kagan’s anticipated interpretation of the commerce clause, the “Party of No” isn’t just opposing the confirmation of extremely qualified Supreme Court Justice; they’re also opposing the government fulfilling its responsibility to protect clean air and water, fair labor standards, and civil rights for all.

PFAW

Will Your Representative Sign the Pledge to Protect America’s Democracy?

Today, People For the American Way and Public Citizen launched a new campaign to get the ball rolling on a Constitutional Amendment to kick corporate money out of elections.

In January, the Supreme Court overturned a policy that was more than a century-old to allow corporations to spend millions of dollars from their treasuries to influence elections. To get to that decision, in the case of Citizens United v. FEC, the Court determined that corporations have the same free speech rights as individuals.

This reasoning, and the conclusion it led to, have been soundly rejected by Americans across the political spectrum. A poll we commissioned last month found that 85% of Americans disagree with the Court’s conclusion that the First Amendment allows corporations to spend whatever they like on elections, and 77% wanted to amend the Constitution to undo it.

What’s more, 74%--including majorities of Democrats, Republicans, and independents-- said they’d be more likely to vote for a candidate who pledged to work for a Constitutional Amendment to undo Citizens United.

We saw this as a clear call to action. So we joined up with Public Citizen to create www.PledgeForDemocracy.org and start making a Constitutional Amendment a reality.

Here’s how it works. We’ve written up a pledge for federal candidates to sign, committing them to work towards a Constitutional Amendment to return our democracy to voters. It reads:

The Supreme Court's flawed decision allowing corporations to spend unlimited amounts to influence election outcomes endangers our democracy and threatens to drown out the voices of individual citizens. I pledge to protect America from unlimited corporate spending on our elections by supporting a Constitutional amendment to overturn the Supreme Court's decision giving corporations the same First Amendment rights as people.

If you support a Constitutional Amendment, contact your representatives and candidates in your area and urge them to sign the pledge. Then get back to us and let us know what they said. We’ll keep track of contacts to candidates and officials, and publicize which candidates sign the pledge and which refuse to sign it.

We know that elections belong to voters…it’s time for elected officials to show they agree.
 

PFAW

The Substance of the Kagan Hearings

Many viewed it as a foregone conclusion that Elena Kagan’s Supreme Court confirmation hearings would lack any real discussion of law and the Constitution. In fact, People For’s Marge Baker argues in a new memo, Kagan’s hearings were more substantial than any in recent memory. Kagan politely but decisively refused to buy into empty conservative rhetoric, and laid out a strong view of the limited, but not simple, role of the courts in a democracy:

Kagan said a great deal about how judges should approach Congressional statutes and argued for significant deference to legislators and reluctance to strike down federal law. Even when invited to take on straw men (like Senator Coburn’s fruits-and-vegetables line of questioning) she went to great lengths to describe the latitude that Congress should be allowed, even pointing to Justice Holmes, approvingly noting that he “hated a lot of the legislation that was being enacted during those years, but insisted that if the people wanted it, it was their right to go hang themselves.”

In applying laws passed by Congress, she emphasized looking at Congressional intent and examining the Congressional record—approaches very much at issue in cases like Ledbetter and Citizens United. Her testimony made an unmistakable argument both for the importance of judges’ responsibility to uphold the Constitution and for the limits of what judges should do.

We’ve put together a collection of some of the most interesting moments from the hearings. Here, Kagan takes down Chief Justice Roberts’ flawed judge-as-umpire analogy:

Click here to watch our top ten favorite clips from the hearings.
 

PFAW

Alexander Hamilton's Plug for Kagan

For all the right wing talk of “strict constructionism" and the "original intent of the Founders," it’s important to bear in mind that the Founders themselves actually did envision the Constitution evolving to apply to new circumstances. Alexander Hamilton (who died 206 years ago today) put it this way:

Constitutions should consist only of general provisions; the reason is that they must necessarily be permanent, and that they cannot calculate for the possible change of things.

Elena Kagan echoed that sentiment in her hearing:

 

 

For more words of wisdom from Kagan’s testimony, see PFAW’s Top Ten Highlights of the Kagan Hearings.

PFAW

The “Irrational Prejudice” Behind DOMA

Yesterday, a federal judge in Massachusetts struck down a key part of the Defense of Marriage Act on two separate constitutional challenges. Judge Joseph Tauro, a Nixon appointee, ruled that the provision banning the federal government from recognizing gay people’s marriages violates the Constitution’s guarantee of equal protection, and the principle of state sovereignty.

Tauro’s opinion in the equal protection case includes some strong words on the motivation behind DOMA, the 1996 law designed to push back against states granting marriage equality. The main purpose of the law was to disadvantage a particular set of people simply out of dislike for them, he writes…and that sort of motivation doesn’t pass constitutional muster:

This court simply “cannot say that [DOMA] is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which [this court] could discern a relationship to legitimate [government] interests.” Indeed, Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit.

In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is irrational prejudice that motivates the challenged classification. As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.

It seems pretty straight-forward to conclude that the Constitution doesn’t allow Congress to discriminate against people just because they dislike them…but, of course, conservative groups are already calling itactivism.”
 

PFAW

“A Judicial Philosophy that Keeps Faith with the Constitution”: Our Endorsement of Kagan

Here at PFAW, we were all eager to hear what Elena Kagan had to say in this week’s hearings, and have spent the past two days in the Senate hearing room or glued to CSPAN 3  listening to her testimony. We were all extraordinarily impressed, and PFAW this afternoon endorsed Kagan’s nomination to the Supreme Court. PFAW president Michael Keegan’s statement:

“The departure of Justice Stevens leaves a hole in the Supreme Court that will be difficult to fill. Throughout his career, Justice Stevens stood up for his belief that all people, no matter their situation, deserve a fair hearing in the courts. Judging by her record of service, her writing, and her testimony before the Judiciary Committee, Elena Kagan is the right person to fill that vacancy.

“Solicitor General Kagan gave the American people a sound and thoughtful lesson about the Constitution as a timeless document, brilliantly conceived by its framers to be interpreted over time in light of new situations and new factual contexts. Her testimony gave voice to a view of the Constitution and the role of judges in sharp contrast to Chief Justice Roberts’ misleading analogy to an umpire calling balls and strikes. And she refused to buy into the cramped and distorted view of the role of the judiciary in interpreting the Constitution that was pushed by some Republican Senators.

“Elena Kagan’s testimony made clear that she has the intellect and the command of the law to stand firm for a judicial philosophy that keeps faith with our Constitution--its amendments, its history, and its core values like justice and equality under the law.

“Instead of engaging in a serious debate however, some Republican Senators chose to lob dishonest attacks at General Kagan's support for our armed forces and, inexplicably, at her mentor Justice Thurgood Marshall. Justice Marshall was a passionate advocate for our Constitution, and it's thanks to him that all Americans have access to its protections. For Senators to repeatedly attack the man who helped our nation move past our shameful history of segregation would be foolish if it weren't just plain offensive.

“After carefully evaluating her record and her statements, People For the American Way is proud to support Elena Kagan's nomination to the Supreme Court.”
 

PFAW

Constitutional Fidelity, Except for the Other Stuff

First, Sen. Tom Coburn railed against Solicitor General Kagan for her refusal to agree to his skewed and narrow vision of the original intent of the Constitution.

Then he switched tacks to rail against her for not subscribing to a view of the law outside of the Constitution.

Coburn asked Kagan if she believed that there was a fundamental right for humans to own guns, and then broadened his question to ask if she believes there exist “fundamental rights” and “natural rights” outside of the U.S. Constitution.

“I don’t have a view of what our natural rights are outside of the Constitution and the law,” Kagan responded. “I’m not saying I don’t believe in fundamental pre-existing rights, but my job as a Justice would be to enforce the Constitution.”

Coburn was not satisfied. He demands, apparently, that judges interpret the law ONLY with the original words of the Constitution…but ALSO with a belief in an undefined set of “natural rights.”

Huh?
 

PFAW

Senator Hatch Defends Citizens United

During his second round of questioning, Senator Hatch again spent a significant amount of time defending the Court’s ruling in Citizens United. I won’t go into a long explanation of why the decision is wrong (as we’ve done several times before) or point out that it’s tremendously unpopular. What should be remarked is that, for the first time in a while, conservatives are routinely being forced to defend the decisions made by conservative Justices (Ledbetter springs to mind as another example.)

When it comes to the debate about the Court and the Constitution, the right-wing is on its heels.

PFAW

Thurgood Marshall Roundup

We were far from the only ones noting the surprising volume of GOP attacks on Justice Thurgood Marshall on Monday. Talking Points Memo counted the number of references to the illustrious Justice on the opening day of Kagan’s hearings:

In an example of how much the GOP focused on Marshall, his name came up 35 times. President Obama's name was mentioned just 14 times today.

Harpers Magazine shared my confusion about what might have motivated Republican Senators to engage in these attacks:

So what made Marshall the image of an “activist judge”? Was it his role in Brown v. Board of Education, the decision that put an end to the lie of “separate but equal” education across the American South, forcing desegregation in public education? Or perhaps it was the fact that he won nearly all of his Supreme Court cases, most of them on behalf of the NAACP, and all of them testing the official refuges of bigotry and racism?

The attacks were led, predictably, by neoconfederate senator Jeff Sessions of Alabama, the Republican ranking member and the Theodore Bilbo of his generation, who snarled that Kagan’s affection for her former boss “tells us much about the nominee”—a comment clearly intended as an insult. But so many other Republican senators joined in—Orrin Hatch, John Cornyn, and Jon Kyl, for instance—that it appears to have been an agreed talking point. (I see Dana Milbank reports that Republican staffers were actually handing out opposition research on Marshall’s voting record after the hearing–another sign that the war on Marshall was a formal strategy.)

At first it was unclear to me what possible complaint about Justice Marshall the Republican Senators could have had. But Dana Milbank at the Washington Post cleared things up:

Republicans saw trouble in this Marshall fellow. "In 2003, Ms. Kagan wrote a tribute to Justice Marshall in which she said that, 'in his view, it was the role of the courts in interpreting the Constitution to protect the people who went unprotected by every other organ of government,' " Kyl complained.

Protecting the unprotected? Say it ain't so!

And that wasn't all. Kagan also emphasized Marshall's "unshakable determination to protect the underdog," Kyl said.

Let’s take a moment to remember all the great things Justice Marshall did for this country. Stephanie Jones’ thoughtful piece in the Washington Post this morning details his vital role in fulfilling the promises of the Constitution. She summarizes:

Marshall was a great jurist who used his skills to move this country closer to being a more perfect union. As a lawyer and a justice, he protected us from activist judges and the cramped thinking of politicians who tried to keep our country in the muck. And he never forgot how the high court's rulings affect the least of us.

So what do Republicans have to gain from attacking this giant? Out west at the Seattle Post-Intelligencer, columnist Joel Connelly reminded us that attacks on Marshall are just part of a larger right wing trend to de-legitimize American heroes with whom they disagree:

The political right has taken to beating up on great American presidents, with the "progressive" Theodore Roosevelt demonized by Fox's Glenn Beck, and Thomas Jefferson ordered banished from textbooks by the Texas Board of Education.

At confirmation hearings for Supreme Court nominee Elena Kagan, Senators from the party of Abraham Lincoln have discovered -- literally -- a new black hat. They are denouncing and labeling Thurgood Marshall, our country's greatest civil rights lawyer.

 

UPDATE: even conservatives are perplexed by the Republicans' anti-Marshall strategy. Check out Joe Scarborough mocking Senate Republicans:

 

PFAW

Sessions: Citizens United was just like Brown v. Board!

You do have to feel for the big corporations who were being discriminated against before the Supreme Court decided they could spend unlimited amounts of money in elections, right? Jeff Sessions, for one, is standing up for corporate underdogs who have fallen victim to moral injustice. Talking Points Memo reports:

Last night, elaborating on his criticisms of former Supreme Court Justice Thurgood Marshall, Sessions made the unusual comparison of Citizens United v. FEC to Brown v. Board of Education of Topeka.

"[Marshall] was right on Brown v. Board of Education. It's akin in my view to the Citizen's United case. The court sat down and we went back to first principles--What does the Constitution say? Everybody should be equal protection of the laws," Sessions told me after a Senate vote last night.

"Is it treating people equally to say you can go to this school because of the color of your skin and you can't?" Sessions asked rhetorically. "We've now honestly concluded and fairly concluded that it violates the equal protection clause."

Come again?

Let’s break this down into a few points that I guess we shouldn’t assume are obvious:

  1. Brown v. Board of Education ended the systematic segregation of the American school system. Citizens United v. FEC struck down a law that didn’t let corporations spend as much as they wanted to on electioneering communications.
  2. The GOP has spent a large part of the past two days attacking Justice Marshall for what they call his “activist” judicial philosophy. They define that philosophy as an insufficient reverence for the Constitution as originally written and intended.
  3. Brown v. Board of Ed (which Marshall argued) is a classic example of a case in which the Supreme Court interpreted part of the Constitution—the 14th Amendment—in a way at odds with the original intent of its writers, but in line with evolving social mores and values. Elena Kagan made that very point herself this morning, as did former Justice David Souter a few weeks ago.
  4. Sessions says that the same philosophy led to Brown v. Board and Citizens United, but continues to slam Thurgood Marshall, the architect of the Brown argument, while praising the results of Citizens United.

The confusing logic aside, the main point here is that Sessions just compared limits on corporate spending in elections with systematic racial segregation. This is the top Republican on the Senate Judiciary Committee. And abstract arguments about judicial philosophy aside, that’s just appalling.
 

PFAW

Free Enterprise Fund v. PCAOB: The Pro-Corporation Court Strikes Again

Yesterday, the Supreme Court held that the Public Company Accounting Oversight Board’s mechanism for removing its officers violated the constitution. Formed by the Sarbanes-Oxley Act, in response to the Enron scandal, the PCAOB has been challenged since its inception. Today’s ruling is another signal from the Roberts Court that the rights of corporations are more important than the rights of individuals. The Court ruled that since the PCAOB’s members are appointed by the Securities and Exchange Commission, and not removable by the President except for cause, such an arrangement violated the Constitution’s separation of powers. According to the Wall Street Journal:

Congress had given the five-member board, a not-for-profit corporation, broad regulatory authority over accounting firms that audit publicly traded companies. . . .

Roberts said the structure of the accounting board violated constitutional separation-of-powers principles because it was too difficult for the president to remove board members.

The majority did not invalidate PCAOB completely, finding that the offending provision was severable from the other parts of the statute.  But as Breyer’s dissent points out, the Court’s ruling “threatens to disrupt severely the fair and efficient administration of the laws” because the decision struck down protection for members from removal for political reasons and could be expanded to apply to other government officers. 

This decision – which as noted by Justice Breyer poses a serious threat to the functioning of the government and the board - is just another that can be added to the long list of pro-business decisions made by the Roberts Court. By further complicating the PCAOB, the Supreme Court is tacitly supporting corporations, rather than protecting the public from predatory practices.

 

PFAW

Kagan: A Fake John Roberts, A Radical Homosexualist, and a Sign of The End Times

As the questioning in Elena Kagan's confirmation hearing finally gets underway, right-wing groups are busy releasing statements and reports claiming she is everything from a "clear and present danger to the Constitution" to a sign of the end times.

The Judicial Crisis Network's first day write-up is particularly confusing, as they seem convinced that Kagan is trying to "disguise herself as the next John Roberts" 

The Senate Judiciary Committee just concluded the first day of Elena Kagan's hearings to replace Justice Stevens on the Supreme Court. Our summary of Day 1: She may not be a Constitutionalist, but she sure plays one on TV.

As we expected, Kagan followed in Justice Sotomayor's footsteps and disguised herself as the next John Roberts, and Democratic Senators did their best to help her hide from her record of extreme activism on abortion, 2nd Amendment rights, and the scope of government power. According to Kagan, "what the Supreme Court does is to safeguard the rule of law, through a commitment to even-handedness, principle, and restraint." In the immortal words of The Who, "Don't get fooled again."

Seeing as it was John Roberts who "disguised" himself as a umpire who would just call balls and strikes and then, once confirmed, revealed himself to be a blatant judicial activist, that is a pretty ironic criticism for JCN to level.

But at least the JCN's complaints are at least coherent, unlike those of Gordon Klingenschmitt:

Chaplain Klingenschmitt has contracted with a team of investigative journalists including Brian Camenker, Amy Contrada and Peter LaBarbera to investigate and report breaking news about Supreme Court nominee Elena Kagan.

While serving as Dean of Harvard Law School, Kagan's administration demanded and forced Blue-Cross, Blue-Shield to cover sex-change operations as an "equal right" paid benefit, harming gender-confused students, as confirmed in 2006 and 2008 by Harvard Crimson newspaper articles.

Kagan also offered sympathetic ear to lesbian group Lambda's Transgender Task Force demand to force all women to share public bathrooms and locker-rooms with cross-dressing men, which is now part of Harvard's dormitory policy, according to the report.

"This is further proof Elena Kagan cannot be trusted to impartially rule on Obamacare or bathroom bills like ENDA, since she believes sin is a Constitutional right," said Chaplain Klingenschmitt, "but rights come from God, who never grants the right to sin."

Because if anything is going to clarify these confirmation hearings, is a report written by a bunch of militantly anti-gay activists like Klingenschmitt, Camenker, and LaBarbera ... and now that is exactly what we have:

Supreme Court nominee Elena Kagan is committed to the radical campaign pushing acceptance of homosexuality and transgenderism as “civil rights." Her unprecedented activism supporting that view as Dean of Harvard Law School (2003-2009) calls into question her ability to judge fairly and impartially on same-sex “marriage” and other homosexuality- or transgender-related issues that may come before the nation’s highest court.

Kagan’s record while Dean of Harvard Law School (HLS) demonstrates her agreement with the goals of the radical GLBT (gay lesbian bisexual transgender) movement and her solidarity with those activists. Working hand in hand with students to expel military recruiters in protest over the Armed Forces’ ban on homosexuals (a “moral injustice of the first order,” she wrote) is only the most obvious example of Kagan’s passionate dedication to this controversial and immoral agenda.

Kagan’s celebration and active promotion of the radical homosexualist and transgender worldview has profound implications. As a Supreme Court Justice, she could be expected to overturn traditional law and understandings of family, marriage, military order, and even our God-given sex (what transgender radicals call “gender identity or expression”). She is a most dangerous nominee who must be opposed by all who care about religious freedom, the preservation of marriage and traditional values.

There should be grave concern over Kagan’s issues advocacy concerning “sexual orientation.” Even before her nomination to the Court, her enthusiastic and committed pro-homosexuality activism at Harvard (including her recruitment to the faculty of radical “gay” activist scholars like former ACLU lawyer William Rubenstein and elevation of radical out lesbian Professor Janet Halley) was highly significant for the nation. Now, it is imperative that Senators and the U.S. public gain an accurate understanding of the radical, pro-homosexual environment that was Kagan’s home at Harvard – and the GLBT legal agenda that Kagan herself helped foster as Dean.

But that is actually quite reasonable compared to this statement from Tim LaHaye and Craig Parshall claiming that Kagan "presents a danger as old as the book of Genesis" and that her confirmation could be a sign of the End Times:

First, if she becomes a Supreme Court justice, she could be the all-important fifth vote in favor of interpreting our Constitution, not according to the vision of our Founding Fathers, but from an international law standpoint, a concept that would have seemed treasonous to our Founders. Three justices on the Court have already relied on foreign law in their opinions: Justices Kennedy, Breyer and Ginsburg. Recently-installed justice Sotomayor has praised Ruth Bader Ginsberg's penchant for international law, so we can assume she will be a legal globalist as well. Five justices create a majority and with Kagan on board they could begin radically steering us away from view of the Constitution that honors our Judeo-Christian heritage and founding.

Second, if this happens, it will usher America into a new age of global law. With Elena Kagan on the Supreme Court, international legal standards could well be imposed on Americans by the High Court's legal globalists, even without the Senate approving a specific international treaty. In our new novel, Edge of Apocalypse, we show how this trend might create a modern-day legal nightmare for conscientious Christians. We need only to turn to Genesis chapter 11 to see how God opposed the ancient attempt at global unification: the Lord declared the tragic result that would follow if a centralized group of fallen men were to consolidate an unlimited, unrestrained power over the planet.

Keep your eyes on the Supreme Court's view of global law. It could be one of the most telling 'signs of the times.'

Cross-posted from RightWingWatch.org

PFAW

A Break from Umpire Analogies?

Well, this is a nice change. In her first few minutes of testimony, responding to questions from Judiciary Chairman Patrick Leahy, Supreme Court nominee Elena Kagan spoke about the Constitution as an enduring document that can be amended and interpreted in a changing world.

The founders recognized that “circumstances and the world would change,” Kagan said. They wrote about “unreasonable” search and seizure, but didn’t write a manual on what counts as unreasonable. “They didn’t do that because of this wisdom they had, because they knew the world was going to change,” she said.

Kagan outlines two varieties of change in constitutional interpretation: the formal amendment process and changing mores. She used as an example the passage of the 14th amendment in 1868, which established equal protection under the law, and the 1954 decision in Brown v. Board, which interpreted the amendment in a way never imagined in 1868 in order to desegregate American schools.

It’s nice to hear that Kagan won’t be engaging in the flawed “balls and strikes” analogy—we might end up hearing a conversation about what the Supreme Court actually does.

[Required reading: former Justice David Souter’s recent speech on this very subject].
 

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Star of the Kagan Hearings is the Corporate Court

Democratic Senators used the opportunity of Elena Kagan’s Supreme Court confirmation hearings today focus attention on nine people who were not in the room. The Senators called the Roberts Court out for some of its more outrageous decisions as they began to reframe the debate on the role of the Court and the Constitution. Central to the discussion was the Court’s decision in Citizens United v. FEC, in which it overturned a century of settled law to allow corporations to spend unlimited amounts of money to influence elections.

Russ Feingold of Wisconsin, was one of the chief designers of the campaign finance rules that the Supreme Court knocked down in Citizens United. He said:

[W]hen a decision like the one handed down earlier this year by a 5-4 vote in the Citizens United case uproots longstanding precedent and undermines our democratic system, the public’s confidence in the Court can’t help but be shaken. I was very disappointed in that decision, and in the Court for reaching out to change the landscape of election law in a drastic and wholly unnecessary way. By acting in such an extreme and unjustified manner, the Court badly damaged its own integrity. By elevating the rights of corporations over the rights of people, the Court damaged our democracy.

Sheldon Whitehouse of Rhode Island took on the Court’s pro-corporate leanings by brilliantly co-opting Chief Justice Roberts’ famous baseball metaphor:

Only last week, the Rent-A-Center decision concluded that an employee who challenges as unconscionable an arbitration demand must have that challenge decided by the arbitrator. And the Citizens United decision -- yet another 5-4 decision -- created a constitutional right for corporations to spend unlimited money in American elections, opening our democratic system to a massive new threat of corruption and corporate control.
There is an unmistakable pattern. For all the talk of umpires and balls and strikes at the Supreme Court, the strike zone for corporations gets better every day.

Ted Kaufman of Delaware told Kagan, “I plan to spend the bulk of my time asking you about the Court’s business cases, based on my concern about its apparent bias.”

The Court’s decision last fall in the Citizens United case, which several of my colleagues have mentioned, is the latest example of the Court’s pro-corporate bent. The majority opinion in that case should put the nail in the coffin of claims that “judicial activism” is a sin committed by judges of only one political ideology.

What makes the Citizens United decision particularly troubling is that it is at odds with what some of the Court’s most recently confirmed members said during their confirmation hearings. We heard a great deal then about their deep respect for existing precedent. Now, however, that respect seems to vanish whenever it interferes with a desired pro-business outcome.

Al Franken of Minnesota explained the real impact of campaign finance laws:

Now, you’ve heard a lot about this decision already today, but I want to come at it from a slightly different angle.
There is no doubt: the Roberts Court’s disregard for a century of federal law—and decades of the Supreme Court’s own rulings—is wrong. It’s shocking. And it’s torn a gaping hole in our election laws.

So of course I’m worried about how Citizens United is going to change our elections.

But I am more worried about how this decision is going to affect our communities—and our ability to run those communities without a permission slip from big business.

Citizens United isn’t just about election law. It isn’t just about campaign finance.

It’s about seat belts. It’s about clean air and clean water. It’s about energy policy and the rights of workers and investors. It’s about health care. It’s about our ability to pass laws that protect the American people even if it hurts the corporate bottom line.

As Justice Stevens said, it’s about our “need to prevent corporations from undermining self-government.

And finally, Sen. Richard Durbin of Illinois summed up the retort to any GOP Senator complaining about “judicial activism”:

We've heard from those across the aisle about their support for traditionalism, and their opposition to judicial activism. I have two words for them: Citizens United.

We’re looking forward to hearing a lot more about Citizens United and the Corporate Court as the hearings progress
 

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Coburn and Strict Construction

Senator Tom Coburn used his opening statement to lecture Solicitor General Kagan on the importance of "strict constructionism."  But maybe before conservatives continue to flog that particular buzz word, they should make sure make sure that the judges they point to are on the same talking points.

Notably, the Justices who are most often cited as strict constructionists themselves reject the term. Justice Scalia has called strict constructionism “a degraded form of textualism,” declaring: “I am not a strict constructionist, and no one ought to be . . . . A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.  Justice Thomas considers himself an originalist and has not hesitated to construe the text of the Constitution broadly, not strictly, when it comes to executive power and state sovereign immunity.”

 

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