Constitution

At a Crossroads

This past Sunday as I was waiting to go on Fox News to talk about the importance of the upcoming debate about the kind of Supreme Court Americans wanted, I had an extra few minutes to walk around the Capitol Hill area near the studio. As I was thinking about one of my key points – that we need a Justice who will keep faith with a Constitution that has been amended by generations of Americans to make sure that “We the people” means “all the people” -  across my blackberry, came word that Attorney General Holder had just said on one of the morning news shows that he wanted Congress to consider modifying the Miranda rule to permit the government to interrogate citizens and legal aliens suspected of being involved in terrorism without advising them of their constitutional right to a lawyer and of their constitutional right not to incriminate themselves. 

Now, I understand that these are troubled and scary times and that Americans understandably fear for their own safety as well as that of their loved ones. The attempted bombing in Times Square certainly was a wake up call.  But, my gut told me that this was a bridge too far – that if we surrender the core constitutional values that make us and our democracy unique in the world, we are left with very little. As hard as it is sometimes, we really do need to make sure that “all the people” and not just some are protected by the Constitution.  

And, as I was pondering this critical crossroads that we find ourselves at as a nation – I came upon the most eloquent reminder of how crucial it is to keep faith with these core constitutional values. It was the small park, near the corner of North Capitol Street and Louisiana Ave that houses the National Japanese American Memorial to Patriotism during World War II. The memorial was created as a tribute to brave Japanese Americans who fought for this country – and for our democracy – during World War II, despite that fact that their families and loved ones had been stripped of their homes and their belongings and were being kept in internment camps because of (what legislation passed by Congress and signed by Ronald Reagan in 1988 called) “race prejudice, war hysteria, and a failure of political leadership.”  The shame of that moment in our history – capped by the Supreme Court’s infamous decision in Korematsu v. United States – should serve as a potent reminder to us of how important it is to keep faith with our core values and who we are as Americans. 

My humble advice – let’s step back, take a deep breath, and think long and hard before we take steps that we will regret in the future.

PFAW

Two Must-Read Op-Eds on the Stevens Vacancy and What This Court Fight Should Be About

In his column yesterday, E.J. Dionne laid out exactly the right prescription for liberals and Democrats in the upcoming confirmation battle over the Supreme Court seat being vacated by Justice John Paul Stevens.

We don't know who the nominee is yet, but we know the dangers posed by the Roberts Court and what the right-wing ideologues are doing to our country via their agenda-driven interpretations and reinterpretations of the law and the Constitution.

Citizens United is an extreme case of a general tendency: Conservative judges are regularly invoking their alleged fealty to the "original" intentions of the Founders as a battering ram against attempts to limit the power of large corporations. Such entities were not even in the imaginations of those who wrote the Constitution. To claim to know what the Founders would have made of Exxon Mobil or Goldman Sachs or PepsiCo is an exercise in arrogance.

What liberals forgot during the years when their side dominated the judiciary is that for much of our history, the courts have played a conservative role. But today's conservatives have not forgotten this legacy. Their goal is to overturn the last 70 years of judicial understandings and bring us back to a time when courts voided minimum-wage laws and all manner of other economic regulations.

Read the whole thing here >

Several days earlier, Joe Conason wrote a great piece discussing the politics of Supreme Court confirmation battles and why Democrats and progressives should be eager to have a constitutional debate about the role of the Court and how the Right's definition of "constitutional" really means the dangerous upending of the traditional understanding of the Constitution which has served America well.

Conason writes:

What exactly do they mean by "constitutional"? On the increasingly powerful fringes of the Republican right, a category that includes some Tea Party activists, the Constitution is interpreted as prohibiting every social and political advance since before the Civil War. They would outlaw the Federal Reserve System, the progressive income tax, Social Security, Medicare, environmental protection, consumer regulation and every other important federal initiative of the past century.

Targets of the "constitutional conservatives" would certainly include civil rights legislation that guarantees equal protection under law to minorities and women...

Click here to read the whole piece >

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An economic historian debunks the originalist rhetoric of Citizens United

Justin Fox, on his Harvard Business Review blog, has an interesting take on the Supreme Court’s decision in Citizens United v. FEC. He interviews Brian Murphy, a history professor at Baruch College who studies the economics and politics of early America. The original laws of incorporation, Murphy says, were developed to organize civic organizations and municipal governments, and later were applied to economic enterprises, partly as a way to dilute their growing influence. “The intent of these laws is therefore the opposite of what the Court asserted in Citizens United,” he says.

Let me put it this way: the Founders did not confuse Boston's Sons of Liberty with the British East India Company. They could distinguish among different varieties of association — and they understood that corporate personhood was a legal fiction that was limited to a courtroom. It wasn't literal. Corporations could not vote or hold office. They held property, and to enable a shifting group of shareholders to hold that property over time and to sue and be sued in court, they were granted this fictive personhood in a limited legal context.

Early Americans had a far more comprehensive and nuanced understanding of corporations than the Court gives them credit for. They were much more comfortable with retaining pre-Revolutionary city or school charters than with creating new corporations that would concentrate economic and political power in potentially unaccountable institutions. When you read Madison in particular, you see that he wasn't blindly hostile to banks during his fight with Alexander Hamilton over the Bank of the United States. Instead, he's worried about the unchecked power of accumulations of capital that come with creating a class of bankers.

The view of corporations as “persons” was meant for legal convenience and economic risk reduction, Murphy argues, and it was the courts, not lawmakers, who started blurring the distinction between the rights of individuals and corporations.

Given the public’s overwhelmingly negative reaction to Citizens United, it seems that Americans continue to understand the difference between corporations and individuals, their purpose in society, and their rights. Americans haven’t grown out of touch with the fundamental values of the Constitution—the Court has.


 

PFAW

Meet the Right’s Newest Judicial Codeword

Maybe the Right Wing is finally realizing that after Citizens United, “judicial activism” just doesn’t cut it for slamming judicial nominees who aren’t willing to overturn a century of settled campaign finance law. So they’re trotting out a brand new talking point to fill the void: “outcome based” judging.

CQ-Roll Call highlighted the up-and-coming new meme:

As part of that effort, Republicans beginning this week will look to use some of Obama’s previous lower court picks — particularly the nomination of Goodwin Liu to the U.S. Court of Appeals for the 9th Circuit — as adhering to a liberal, “outcomes-based” philosophy rather than a constitutionalist approach.

What’s it mean? Allow us to translate: “Liberal activist!! Legislate from the bench!! Empathy! Wise Latina!!!! OMG OMG OMG!!!!”

Yes, “outcome based” is just the latest in a long line of virtually meaningless epithets aimed at any judicial nominee who disagrees with the gospel according to Robert Bork.

Is there a debate to be had between different philosophies towards applying the Constitution? Sure. Justice Scalia and Justice Breyer have it all the time. But this isn’t it. In the upcoming confirmation process for Justice Stevens’s successor, the American people deserve a conversation about the Court and the role it plays in the lives of ordinary people. Unfortunately, it seems like the GOP is planning the same warmed-over sound bytes we’ve been getting for years.
 

PFAW

Sessions revives the empty “judicial activism” argument

Justice Stevens only announced his resignation a few days ago, and already the far right is throwing around the familiar Republican talking point about a potential “activist” Supreme Court nominee:

Several days after Supreme Court Justice John Paul Stevens announced his decision to retire, Republican leaders are already making it clear they'll put up a fight if President Obama nominates a left-leaning judicial activist.

Sen. Jeff Sessions, R-Ala., said if the president wishes to avoid a filibuster, he should choose someone with "mainstream" judicial views as Steven's successor.

"If it's somebody like that, clearly outside of the mainstream, then I think every power should be utilized to protect the Constitution," Sessions, the top Republican on the Senate Judiciary Committee, told NBC's Meet the Press.

Sessions elaborated:

It's when an unelected lifetime-appointed judge, or five of them use their power, unaccountable power, to redefine the meaning of the Constitution to effectuate some policy agenda, some empathy, some ideology that they have, that's what threatens the average American.

The “judicial activism” argument, which we’re sure to be hearing repeatedly in the coming weeks, rings hollow in the wake of this conservative-dominated Court’s decision in Citizens United v. FEC. That decision, which overturned over a century of judicial precedent to hand corporations an outsized amount of influence in the electoral process, is exactly the kind of judicial act that, in Sessions’ words, “threatens the average American.”

And it’s worth noting the multiple studies that have shown that the more conservative justices on the Supreme Court are the ones most likely to vote to strike down laws passed by Congress and decisions by federal regulators.

It’s time for conservatives to either retire the “judicial activism” argument, or start applying it to their own nominees.
 

PFAW

Gingrich: Let’s Shut Down the Government Again

In a how-to talk to the Southern Republican Leadership Conference last night, titled “Becoming the Party of Yes,” Newt Gingrich advocated the proactive step of shutting down the federal government.

Talking Points Memo reports:

"Stage one of the end of Obamaism will be a new Republican Congress in January that simply refuses to fund any of the radical efforts," said Gingrich. "Now I say this because our friends in the news media said, you know it's realistic to talk about 'repeal and replace,' because after all he's gonna be president for the next three years and he'll veto a repeal bill. And I think they forgot that once upon a time, that I used to be Speaker of the House, and I actually understand the legislative process."

Gingrich continued: "And the truth is, the truth is under our Constitution we simply -- the Congress doesn't have to pass the money. If EPA gets no budget, it can't enforce cap-and-trade. If HHS gets no budget (applause)..."

Yes, we remember “once upon a time” when Gingrich was Speaker of the House and tried the exact same thing. How’d that work out?

 

PFAW

Continuing Stevens’ Legacy

Justice John Paul Stevens’ announcement that he will retire this summer marks the end of an era for the Supreme Court and a crucial opportunity for President Obama and the Senate to shape the Court’s direction.

Stevens—the last survivor of the era before Supreme Court nominations became televised partisan battlegrounds—has been a bulwark against a Court that has been moving aggressively to the right. His adamant dissent to this year’s decision in Citizens United v. FEC, like his dissent in Bush v. Gore, were strong defenses of democracy and indictments of an increasingly politicized Court.

President Obama now has the chance to nominate another Justice who will prioritize the rights of ordinary Americans. People for the American Way President Michael B. Keegan said today:

“His retirement will give President Obama his second opportunity to nominate a jurist for our nation’s Highest Court. I hope he will select someone who will continue Justice Stevens’s tradition of working to ensure that individuals receive the fair treatment that our Constitution guarantees. In recent years, the Court has given extraordinary preference to powerful interests at the expense of ordinary Americans. Justice Stevens was a bulwark against that trend. Our country’s next Justice must play a similar role.”

Let’s hope that Republicans in the U.S. Senate will put aside their habits of obstructionism and support the nomination of a Justice who will continue Stevens’ strong, even-handed legacy.
 

PFAW

The First Corporate Ad – An Avalanche Begins with One Flake

The ad below may not look like much, but it’s a sign of much greater – and troubling – things to come. It appears to be the very first political ad purchased with corporate money, all thanks to the Supreme Court’s ruling in Citizens United.

The ad ran in a handful of small Texas newspapers and was purchased by KDR Development Inc., a local real estate firm, to oppose a political enemy of the firm’s president, Larry Durrett.

Durrett, who also runs a chain of fast food franchises, told the Texas Tribune that his “businesses do better under conservative people.” Asked why he used corporate rather than personal money, Durrett said that he took “the money out of the pocket that's got some money in there.”

Apply the same logic to giant corporations, and you can see we have a massive problem on our hands. The Supreme Court gave Exxon the same right to spend a billion dollars as it gave Durrett to spend a few thousand.

Durrett’s modest ad buy is a warning to us all – the avalanche of corporate cash is coming. Click here to join our campaign for government by the people, not corporations.

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Judging, Judges and Prop 8

Washington Post columnist Ruth Marcus, in a piece titled, “Don’t ask, don’t judge?” gave a rhetorical green light to Religious Right activists who have responded to news that federal judge Vaughn Walker is gay by attacking his ability to rule fairly on the constitutional challenge to Prop. 8, the California ballot initiative that stripped same-sex couples of the right to get married.

Although Marcus concludes in the end that Walker, who was randomly assigned to hear the case, was right not to recuse himself simply because he is gay, she does so after a lot of “squirming” like this:

So when Walker considers claims that the ban on same-sex marriage violates the constitutional guarantees of equal protection and due process of law, it's hard to imagine that his sexuality, if he is gay, does not influence his decision-making -- just as the experience of having gay friends or relatives would affect a straight judge.

In the end, Marcus writes,

In this case, I hope the plaintiffs win and that Walker rules that the same-sex marriage ban violates their constitutional rights. At the same time, I've got to acknowledge: If I were on the side supporting the ban and found it struck down by a supposedly gay judge, I'd have some questions about whether the judicial deck had been stacked from the start.

But why wouldn’t the deck be considered “stacked” against gay people if a straight judge were deciding the case? By concluding her column that way, Marcus gives credence to the offensive notion that is already being promoted by right-wing leaders that a gay judge cannot be expected to rule fairly in a case involving the legal rights of gay Americans.

Here’s Matt Barber, director of cultural affairs with Liberty Counsel, responding to news that Judge Walker is, in Barber’s words, “an active practitioner of the homosexual lifestyle.”

“At worst, Judge Walker’s continued involvement with this case presents a textbook conflict of interest. At best, it objectively illustrates the unseemly appearance of a conflict.

"If Judge Walker somehow divines from thin air that the framers of the U.S. Constitution actually intended that Patrick Henry had a ‘constitutional right’ to marry Henry Patrick, then who among us will be surprised?

“Any decision favoring plaintiffs in this case will be permanently marred and universally viewed as stemming from Judge Walker’s personal biases and alleged lifestyle choices.

"For these reasons, and in the interest of justice, Judge Walker should do the honorable thing and immediately recuse himself.”

Barber tries to make a case that he is taking a principled stand by saying, “This is no different than having an avid gun collector preside over a Second Amendment case,” continued Barber, “or a frequent user of medical marijuana deciding the legality of medical marijuana.”

Really, Matt? You expect us to believe that you would advocate that judges who collect guns should recuse themselves from cases involving the Second Amendment? What about avid hunters, like Justice Antonin Scalia? Should anyone who owns a gun be assumed not to be able to rule fairly on legal issues involving guns?

The Post’s Marcus concluded that asking Judge Walker to recuse himself would “invite too many challenges to judicial fairness -- Jewish judges hearing cases about Christmas displays, or judges who once represented unions or management presiding over labor disputes.”

What about Christian judges presiding over Christmas displays? Can you imagine the outrage from Matt Barber and his Religious Right colleagues if someone were to suggest that Christian judges should be barred from hearing cases involving legal and constitutional questions about separation of church and state?

In a diverse and pluralistic nation, it’s important that the federal bench reflect that diversity. But what’s far more important than an individual judge’s race, religion, ethnicity, or sexual orientation is his or her judicial philosophy and understanding of the Constitution’s text, history, and role in protecting the rights and opportunities of all Americans.

The unspoken offensive presumption at work here is that people who come to the law with a life experience that is considered “normal” – say, straight white male Christian – are inherently unbiased, or that their life experience somehow gives them a singularly correct way of viewing the law. Others are suspect.

This notion was on ugly display during the Sonia Sotomayor hearings, when her recognition that she would bring her life experience as a Latina to the bench was used to pillory her as a white-male-hating racist. What about all those white male senators, and the white male Supreme Court Justices they had voted to confirm? Samuel Alito’s ethnic pride and empathy were considered valid, while Sotomayor’s was radical and threatening.

Ruth Marcus is no Matt Barber. She is in some ways simply acknowledging the reality that there is still a level of emotional prejudice against gay people that will keep some Americans from believing that a gay judge can be fair. But she is far too sympathetic to the purveyors of that prejudice. Her column validates their bigotry and will encourage more of the kind of divisive rhetoric we see from the likes of Barber.

PFAW

Justice Alito: Words v. Actions [VIDEO]

The media spent much of last week obsessing over Justice Samuel Alito's injudicious show of disapproval during the State of the Union. They went a bit overboard to be sure, but were it not for that, millions of Americans may have missed the Citizens United ruling entirely.

Citizens United, as you probably know, opened up elections to unlimited corporate spending. The 5-4 decision overturned a century of precedent and was made possible by Justice Alito -- President Bush's nominee to replace moderate Sandra Day O'Connor.

Sorely absent from last week's coverage was how far Alito's actions on the bench have departed from his words as a nominee. With that in mind I've pulled some relevant clips from the confirmation hearing.

Alito praised the principle of stare decisis (respect for precedent) throughout his hearing but hasn't let it prevent him back brashly overruling longstanding decisions. Here, in conversaton with Senator Orrin Hatch (R-UT), he argued that the court should take limited actions and use its ability to overrule precedent sparingly:

HATCH: Does that mean that the Supreme Court should perhaps be even more cautious, even more self-restrained, since there is no appeal from any errors that they might make?

ALITO: I think that's a solemn responsibility that they have. When you know that you are the court of last resort, you have to make sure that you get it right. It is not true, in my judgment, that the Supreme Court is free to do anything that it wants. It has to follow the Constitution and it has to follow the laws. Stare decisis, which I was talking about earlier, is an important limitation on what the Supreme Court does. And although the Supreme Court has the power to overrule a prior precedent, it uses that power sparingly, and rightfully so. It should be limited in what it does.

Alito frequently said that his judicial philosophy discourages him from reaching overly broad decisions when a narrower ruling is possible. Yet he and the other conservatives went far out of their way in order to strike down as many restrictions on corporate influence in elections as possible. Here, still speaking to Senator Hatch, Alito praised narrow rulings and noted that court rulings on consitutional grounds often cannot be undone by Congress (indeed, we are coming up against that limitation now with Citizens United):

ALITO: Because a constitutional decision of the Supreme Court has a permanency that a decision on an issue of statutory interpretation doesn't have. So if a case is decided on statutory grounds, there's a possibility of Congress amending the statute to correct the decision if it's perceived that the decision is incorrect or it's producing undesirable results. I think that my philosophy of the way I approached issues is to try to make sure that I get right what I decide. And that counsels in favor of not trying to do too much, not trying to decide questions that are too broad, not trying to decide questions that don't have to be decided, and not going to broader grounds for a decision when a narrower ground is available.

Alito also made a good show of deference to the elected branches of government, arguing that the role of a judge is to interpret the law, not make public policy. He clearly disregarded these remarks to Senator Jeff Sessions (R-AL) when he joined with four other judges to strike down decades of legislation passed by Congress and signed into law by the President:

SESSIONS: But we really want the court to be more modest and to draw back from some of its intervention and policy issues that are causing much angst around the country. You want to comment on that? Otherwise, Mr. Chairman, I would yield my time.

ALITO: Well, Senator, I think your policy views are much more legitimate than the policy views of the judiciary because members of Congress are elected for the purpose of formulating and implementing public policy and members of the judiciary are appointed for the purpose of interpreting and applying the law.

PFAW

Correcting the Court is nothing new

On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act into law, restoring the rights taken away by the Supreme Court in Ledbetter v. Goodyear Tire & Rubber Company. One year to the day, a new movement is afoot to correct the Court.

Title VII of the Civil Rights Act of 1964 was enacted to protect individuals from discrimination they face in the workplace.  In Ledbetter, the Supreme Court undermined that protection by holding that employees who are subjected to pay discrimination must bring a complaint within 180 days of the discriminatory compensation decision and that each paycheck that is lower because of such discrimination does not restart the clock.  Advocates fought hard for a law that would reiterate Congress’ intent to hold employers accountable for their discriminatory practices and to allow employees a fair chance to challenge unlawful pay discrimination.

Advocates are now calling for another Court correction, this time in response to the Citizens United ruling, which prohibits Congress from limiting the influence of corporations in elections for public office. Not only is this a radical departure from longstanding precedent, it defies common sense: it argues that corporations and American citizens have identical free speech rights under the Constitution. As Justice Stevens pointed out in his dissent, corporations are not people. They cannot vote, they cannot hold office, and they should not be allowed to pour billions of dollars into our system of government.

Unfortunately the fix we found in for the Ledbetter decision is not enough to fix Citizens United. Legislation, while important and critically needed to mitigate the effects of the decision, may ultimately prove to be inadequate against the unfettered influx of corporate election spending. Only a constitutional amendment can restore the American people’s authority to regulate corporate influence in our elections and restore our democracy.

People For the American Way is calling for just such an amendment. Click here for more information and to sign our petition.

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The New Preamble

The New Preamble:

We the corporations of the United States, in order to accumulate historically unparalleled wealth, take advantage of limited liability, control the nation's news media, exercise monopolistic and oligarchic control over trade, and secure the blessings of power to ourselves and our subsidiaries, do ordain and establish this Constitution for the United States of America.

Personally, I kind of liked the old "We the People" idea, back when we thought the Constitution existed to protect people's liberty. Guess I'm an old-fashioned kind of guy. It'll take a constitutional amendment to get our Constitution back.

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Prop 8 Case Goes to Trial

Anyone interested in equal rights for all Americans might want to pay attention to the trial starting today in San Francisco. In the case, superstar lawyers David Boies and Ted Olson are arguing that Prop 8 violates the due process and equal protection clauses of the Constitution. They’re right, of course, but the trial is expected to last for weeks and appeals may well go on for years.

For now, though, you’ll be limited to media reports about what goes on in the courtroom. Judge Vaughn R. Walker, who is hearing the case, had ruled that video of the proceedings would be made accessible through YouTube, but this morning the U.S. Supreme Court blocked the video—for now. Their injunction only lasts until Wednesday, by which time they’ll (presumably) make a more final decision.
 

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The GOP and the Courts

If anyone had any doubt that the courts matter, check out this article in today’s Hill about Republicans and allied groups vowing to spend millions on legal challenges to healthcare reform and other parts of the Obama agenda.

Health care, global warming, financial reform, workers rights--you name it.  The courts make a huge difference in the lives of all Americans. Who sits on those courts--and how fully they embrace our core constitutional values--is critical.

That’s why there’s so much urgency about breaking the current nominations impasse created by Republicans’ unprecedented obstruction. And that’s why we need a bold choice to fill any new vacancy on the Court--someone who understands the constitution mandates attention to the interests of all, not just a privileged few.

PFAW

The Pew and the Bench: A Faith Summit on the Federal Judiciary

Today, there was a panel at the Religious Action Center discussing the role of religious communities in debates over judicial nominees. Joi Orr, program assistant with People for the American Way’s African American Religious Affairs department spoke about the role of the religious vote and what People for the American Way is currently doing around judicial nominations.

Other panelists included: Nancy Zirkin from the Leadership Conference on civil rights, Jim Wimkler from the general board of the United Methodist Church, Holly Hollman from the general counsel of the Baptist joint committee, Sammie Moshenberg from the National Council of Jewish Women, Rick Foltin from the American Jewish Committee and Mark Pelavin from the Religious Action Center.

Panelists briefly discussed how their organizations reach various faith communities, and reiterated the importance of having strong judicial candidates for these lifetime position. Joi summarized the work that the African American Religious Affairs department is accomplishing with regards to judicial nominations.

The ministers programs were founded to act out of the prophetic vein of the Black Church. So I will say, that we do not claim to speak on behalf of the entire black church, because it is not a homogeneous group. We particularly advocate and represent the marginalized, disenfranchised, and outcast. So like the prophet Rev. Dr. Martin Luther King Jr., we advocate with a liberal reading of the Bible in one hand and the Constitution in the other. That’s what the prophetic black church has done throughout history. We rejected the “slaves obey your masters” rhetoric of the New Testament, while embracing the nation’s sacred documents that purport to stand for liberty and justice for all. And I want to underscore the word all. Because the truly prophetic black church is inclusive in its advocacy. That’s why MLK was an integrationist. That’s why as an organization we work on fair public education for all of our children, fair comprehensive immigration reform, and LGBT rights, because injustice anywhere is a threat to justice everywhere.

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Roberts and Alito Legislating From the Bench

This week, the Supreme Court heard arguments in Maryland v. Shatzer, a case involving the constitutional right to counsel during police questioning. The questions asked by the Justices – even the most conservative of them – exposed one of the great lies the Far Right tells about our nation’s judiciary: that courts should not make policy.

In 1981, the Court held that once you tell the police that you want your lawyer, the questioning must stop either until your lawyer arrives, or you yourself initiate further communication. This rule protects you from being badgered by the police to change your mind before the lawyer shows up.

In 2003, after Michael Blaine Shatzer asked for a lawyer, the police dropped their investigation and released him from their custody. Three years later, new evidence arose in the case. The rule established in 1981 would suggest that the police were still barred from questioning Shatzer. That was the issue before the Court this week. To help them analyze the case, the Justices asked the sorts of hypothetical questions they often ask. The Washington Post reports:

Justices seemed generally supportive … that police should have been allowed to question Shatzer again, but they had a hard time agreeing on how the rule should be changed.

[Chief Justice] Roberts worried that police could repeatedly question and dismiss a suspect who asks for a lawyer. "You know, just sort of catch-and-release, until he finally breaks down and says, 'All right, I'll talk,' " Roberts said. ...

[T]he justices wondered what could be done about a suspect who asks for a lawyer, never actually receives one or is convicted, and then is questioned years later, perhaps for a different crime.

Justice Samuel A. Alito Jr. posed this hypothetical: What if someone was arrested for joy riding in Maryland, invoked his Fifth Amendment protection, and was never convicted? Could police in Montana question him as a murder suspect in Montana 10 years later?

When [Shatzer’s attorney] said no, Alito replied: "And you don't think that's a ridiculous application of the rule?"

[Then] Alito raised the hypothetical ante to a crime committed 40 years later ...

If the police let a suspect go after he asks for a lawyer, does the Constitution prohibit the police from questioning him again half a century later? Should there be limits? What should they be? How do you decide?

The Justices deciding this case are not simply calling balls and strikes, the insulting umpire analogy that Roberts infamously used during his confirmation hearings. Roberts, Alito, and the other Justices are weighing the consequences of different possible interpretations of the 1981 precedent as they apply it to a new and unforeseen situation.

Just as legislators do, they will be making policy. And that's fine. That's what courts are supposed to do. It's inherent in interpreting the law in difficult cases such as this.

So the next time the Washington Post quotes a right wing propagandist condemning progressive judges for making policy or "legislating from the bench," perhaps the Post will do more than collaborate by simply reprinting the accusation. Perhaps the Post will cite its own reporting and point out that all judges weigh policies and make law, but that the Far Right is silent when conservative judges do it.

PFAW

Happy Constitution Day!

At People For, our mission is to promote and defend constitutional values, so September 17th, Constitution Day, has a special place in our heart. Senator Robert Byrd passed legislation to create Constitution Day in 2004, and we wanted to celebrate this year by sharing clips from some of our Constitution reading events from years past.

In 2009 Senator Byrd reads the Preamble:

In 2006 Justice Ruth Bader Ginsburg reads Article 3:

In 2004 Richard Gere reads Article 1, Section 3:

and Article 5 and 6:

In 2004, Betty Friedan reads the 19th Amendment:

In 2009, Ana Marie Cox reads the 18th Amendment:

and the 21st Amendment:

In 2009 Michael York reads the 25th Amendment:

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The Writing is on the Wall

The writing is on the wall. As any number of commentators have suggested, it’s pretty clear that no matter whom the President nominates for the next Supreme Court vacancy, the Republicans and their allies on the far right are going to fight. Indeed, as Jeff Toobin points out in his excellent article in The New Yorker, even the President’s mainstream nomination of David Hamilton for a seat on the Seventh Circuit Court of Appeals – his very first judicial nominee – continues to languish because of unfounded attacks from the Right. As one White House official is quoted by Toobin: ‘If they are going to stop David Hamilton, then who won’t they stop.” 

As suggested in Toobin’s article, the Republicans claim it’s payback for the President’s votes against Chief Justice Roberts and Justice Alito.  But as history is showing us, then-Senator Obama’s votes were the correct ones. The Roberts court is Exhibit A in far right judicial activism – not the balls and strikes umpiring we were promised by the Chief Justice.  In any event as Republican Senator Thune makes clear in yesterday’s Roll Call article, the only way for the President to avoid a fight is for him to nominate a conservative – anything else would meet significant resistance.

So the cards are on the table. If we’re going to have a fight, then let’s think boldly about the kind of Justice we need on the Court. And that means a Justice who understands that the law and the Constitution mandate protections for average Americans against the interests of the more powerful. It means a Justice who understands that the law and the Constitution protect important privacy rights. It means a Justice who appreciates that the law and the Constitution affect the realities of Americans’ everyday lives.  It means a Justice who respects the core constitutional values of justice and equal opportunity for all.  If we’re going to have a fight, let’s make it one worth having – let’s make it a fight for core constitutional values.

PFAW

It’s More than Balls and Strikes

The Supreme Court is about to hear argument in a case, Citizens United v. Federal Election Commission, that should put an end to the myth advanced by Chief Justice Roberts at his confirmation hearing that he, as a Justice, is simply serving as an umpire, calling balls and strikes about what the law provides without any intention of influencing the direction of the law.  

After hearing oral argument last term, the Court postponed a decision in Citizens United, which involves the FEC’s attempt to treat an anti-Hillary Clinton movie as an impermissible “electioneering communication,” and ordered the parties to submit briefs that address the question of whether regulating corporate expenditures in candidate elections is constitutional. So instead of deciding the case in front of them, those who had been on the losing side in the past have reached out to redecide an issue that had been settled. 

Regardless of where you are on the merits of regulating express candidate advocacy by corporations – the issues of campaign finance regulation and the question currently being addressed by the Court are extraordinarily complex and weighty – it seems likely that those formerly in the minority, including Justice Roberts, seeing a change in the make-up of the Court (with Justice Alito replacing Justice O'Connor, who originally helped decide the quesiton), have seized a potential opportunity to re-make the law.  

So let’s be clear. Chief Justice Roberts isn't just calling balls and strikes: he's actually determining which pitches get thrown. 

Judges bring their own legal ideology to the table when they decide cases. It makes a difference whether the next nominee to the Supreme Court understands that the law and the Constitution mandate protections for average Americans against the interests of the more powerful. It makes a difference whether the next nominee to the Supreme Court understands that the law and the Constitution protect important privacy rights. It makes a difference that the next nominee appreciates that the law and the Constitution affect the realities of Americans’ everyday lives. It’s not just balls and strikes. Judicial philosophy matters.

PFAW

First Day of Sotomayor Confirmation Hearings

Judge Sotomayor’s confirmation hearings began this morning before the Senate Judiciary Committee with the opening statements of Chairperson Leahy and Ranking Member Sessions, followed by each of the remaining members in order of seniority.

Most Senators lauded Judge Sotomayor’s experience on the bench and academic credentials, but Republicans took the opportunity to accuse Sotomayor of being unable to rule impartially.

But Sotomayor's opening statement refuted that, underscoring her “rigorous commitment to interpreting the Constitution according to its terms…and hewing faithfully to precedents established by the Supreme Court and by [her] Circuit Court.

Senator Hatch noted that while he will question Judge Sotomayor vigorously, “[T]he Senate owes some deference to the [P]resident's qualified nominees.” Senator Graham followed suit, stating that “President Obama won. And that ought to matter. It does to me.” He went so far as to add that “unless [Judge Sotomayor had] a complete meltdown,” she would be confirmed.

Tomorrow brings one-on-one questioning by Judiciary Committee members broadcast live, beginning at 10 a.m. Stay tuned for updates as the hearings progress.

PFAW