Courts

Udall and Bennett Push for Vote on Judge

Another set of senators have come forward to try to break the GOP’s logjam on judicial nominees.

Colorado Senators Mark Udall and Michael Bennett sent a letter Friday to the leaders of the Senate and the Senate Judiciary Committee to request a Senate vote on Colorado district court nominee William Joseph Martinez. Martinez was nominated to the seat in February and approved by the Judiciary Committee in April.

The GOP has refused to vote on Martinez’s nomination, along with the 20 other pending judicial nominations.

"We can all agree that the Senate must act quickly on this and other pending judicial nominations in order to avoid further strain on our federal court system," the senators wrote. "The federal court system is already burdened by an overwhelming caseload, and the existence of these vacancies only adds to a mounting backlog."

I wrote last week about the profound consequences of GOP obstruction of run-of-the-mill judicial appointees: When the GOP stalls the nomination of one well-qualified nominee with bipartisan support, it’s an annoying political game. When that political game is multiplied by the dozens, it becomes a concerted attempt to keep the judiciary in the hands of the Right Wing.

The more senators who speak out on behalf of individual nominees, the greater the chances of breaking the dangerously low-profile obstruction.
 

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

Making the Courts a Progressive Priority

If there’s one theme that’s prevalent here at Netroots Nation, it’s that elections matter—but what you do after elections matters more.

In a great panel discussion this morning, six judiciary-watchers discussed why the courts should matter to progressives, and why it’s dangerous when they don’t.

Pam Karlan, a professor at Stanford Law school who is frequently mentioned as a potential Supreme Court nominee herself, put it this way: “However much progressive legislation we get from Congress, unless it gets enforced every day by district courts, it’s just words on paper.”

Republicans have successfully made the courts an issue for their base, and are trying to work it to their advantage now that they’ve lost power in Congress and the White House. The Philadelphia Inquirer reported earlier this month that nearly 40% of federal judges currently serving were appointed by George W. Bush, whose habit of recruiting from the conservative Federalist Society led to an intentional right-ward drift on courts across the country.

In their effort to keep the courts on the Right, Republicans are taking full advantage of their well-practiced obstruction skills.

Nan Aron, president of Alliance For Justice described the Republican game plan to keep the courts: “Hold seats open until a Republican president comes in and he’ll fill them in a New York minute.”

Which is exactly what Senate Minority Leader Mitch McConnell is trying to do as he repeatedly refuses to hold votes on confirming President Obama’s judicial nominees. He’s making a deliberate effort to stall all Senate business, but also a calculated plan to keep seats on the federal bench empty for as long as possible with the hope that they won’t be filled by progressives.

What courts do every day—from the Supreme Court down—matters to ordinary people. Indeed, courts are central to our ability to hold corporations and other special interests accountable for harmful behavior. Judicial appointments are essential to securing corporate accountability for environmental safety (just look at the Fifth Circuit, where the judges making important decisions about oil drilling regulation are closely connected to the oil industry); they’re essential to holding businesses accountable for how they treat workers (see Rent-a-Center v. Jackson); and, of course, they’re a critical part of ensuring our civil rights.

Dahlia Lithwick, who covers the Supreme Court for Slate, pointed out that “conservatives have been laser-focused on the court,” while progressives don’t always connect the issues we care about with the courts that ultimately decide their fate.

It's time to change that.

UPDATE: You can watch the full discussion in the video above.

PFAW

The GOP's Judicial Obstruction Stats

Yesterday, Sen. Kay Hagan of North Carolina tried to convince the Senate to confirm two appeals court nominees from her state. The two nominees, Judges James Wynn and Albert Diaz, have no controversial baggage--each received near-unanimous bipartisan support from the Judiciary Committee.

The confirmation of Wynn and Diaz would also contribute to the Obama Administration’s effort to add diversity to a woefully un-diverse court system. Diaz would be the first Latino appointed to the Fourth Circuit, Wynn the fourth African American.

Wynn and Diaz have both been waiting 169 days—over five months— for a Senate vote.

But none other than Minority Leader Mitch McConnell took to the floor yesterday to block a vote on the two nominees. He freely admitted that his action had nothing to do with Wynn and Diaz themselves, but was rather a purely political retaliation against the president’s recess appointment of a Medicare and Medicaid administrator. That appointment was not only unrelated to Wynn and Diaz, but came after the two nominees had already been stalled for months on the Senate floor.

Watch the video of Hagan’s and McConnell’s exchange:


Using judicial nominees as political pawns—thereby leaving important vacancies in courts throughout the country and stalling efforts to put judges with diverse background on the bench—is a tactic that the Republican minority has been using with zeal.

We’ve been collecting statistics on Republican efforts to keep qualified judges from starting their jobs. Here’s the latest update:

Nominees waiting for confirmation: 21
Nominees who have been waiting for more than 90 days: 18
Average number of days since nominated: 161 (200 for circuit court nominees)
Average number of days waiting for a Senate floor vote: 90 (111 for circuit court nominees)
 

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

Bush’s Courts

We talk a lot about the purely political motives Republican senators have in their efforts to slow down the confirmation process for President Obama’s judicial nominees. It’s easy to forget that who those nominees are—and when they start working— makes a huge difference. The Philadelphia Inquirer reported this weekend that nearly 40% of all federal judges currently on the bench were appointed by George W. Bush--who made a concerted effort to appoint judges with right-wing credentials, and, you might say, didn’t put much of a priority on gender or racial diversity.

Obama, in contrast, has returned to a more bipartisan appointment process and has a notably diverse list of appointees. But thanks to Republican obstruction, Obama’s appointees aren’t making it to the bench:

So far, nearly half of Obama's 73 appointments to the federal bench have been women, 25 percent have been African American, 11 percent Asian American, and 10 percent Hispanic. About 30 percent of Obama's nominees were white males. By contrast, two-thirds of George W. Bush's nominees were white males.

Obama's rate of appointing women and people of color is higher than those of any of his predecessors during the first year of their terms. But he is not the only one setting records.

According to a report by the Alliance for Justice, a liberal advocacy group: "The Senate confirmed both fewer nominees and a smaller percentage of nominees under President Obama than under any other previous five presidents during their first year in office."

Presidents Jimmy Carter and Ronald Reagan had 91 percent of their nominees confirmed in their first year in office. Since then, however, the figure has sharply declined, with George H.W. Bush getting 65 percent of his early judicial nominees confirmed, followed by Bill Clinton at 57 percent, George W. Bush at 44 percent, and Obama at 36 percent.

As recent events in the Fifth Circuit reminded us, it really does matter who ends up in federal judgeships. And Republicans, booted from control of the legislative and executive branches, are fighting tooth and nail to keep the courts.
 

PFAW

The Oil Industry Ties of Oil Industry Judges

We’ve been worried about what will happen if liability suits from BP’s massive oil spill in the Gulf reach the Supreme Court. But it sounds like fans of justice might have more immediate concerns.

When a district court judge halted the Obama administration’s Gulf drilling moratorium last month, that judge’s history of ties to the oil industry caused a stir. Today, a three judge panel from the 5th Circuit Court of Appeals is set to hear an appeal of the case.

But we shouldn’t get our hopes up. Alliance For Justice has looked into the backgrounds of the three judges on the panel and found some pretty startling oil industry ties: two of the judges represented major oil companies in previous jobs, two have major investments in oil companies, and two went on an oil industry-financed junket to Montana in 2004 to learn “why ecological values are not the only important ones.”

Read the full Alliance For Justice report here.


 

PFAW

Regulation and the 2010 Elections

The Washington Post is reporting that Wall Street contributions to Democratic campaign committees are markedly lower than this time in 2006 or 2008.

The drop in support comes from many of the same bankers, hedge fund executives and financial services chief executives who are most upset about the financial regulatory reform bill that House Democrats passed last week with almost no Republican support. ... This fundraising free fall from the New York area has left Democrats with diminished resources to defend their House and Senate majorities in November's midterm elections.

With Democrats seeking to impose reasonable regulations designed to protect the American people, this is no surprise.

The Republican Congress was a dream come true for the rapacious financiers who dragged our economy over a cliff, just as it was for all manners of giant corporations. We're seeing the results of the Republican ideology of allowing the most powerful industries to write their own laws and draft their own regulations. Not even the Supreme Court is immune, as a recent report from our affiliate People For the American Way Foundation demonstrates.

Deregulation has made the most powerful even more powerful, while the rest of us find ourselves more and more helpless against corporate behemoths.

Anyone who's spent an hour on hold waiting to get through to a large corporation knows who holds the power in our society, and it isn't us. These companies have been allowed to become so large that they can afford to mistreat their consumers in ways that no business would have gotten away with a generation ago.

Are you happy with the level of corporate influence on our politicians and on our lives? Do you wish you could make Big Business even stronger?

Or do you think it's time for Americans to retake control of our lives? If so, then it's time to act. Because the corporations aren't sitting this election out.

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

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

Coburn Wants the Supreme Court to Stop Congress from Spending

Senator Tom Coburn just launched an . . . interesting line of questioning against Elena Kagan, claiming that the Supreme Court has a broad mandate to stop Congress from running up a national debt.

SCOTUSblog’s initial notes of Coburn’s statement:

The Commerce Clause has gotten us to a place where we'll have a $1.6 Trillion deficit for our kids to pay. We have this expansive cost, and we have to have some limit on it. If the courts aren't going to limit within original intent, we have to throw out most of the Congress.

Actually, Senator Coburn, the American people do have a way to “throw out most of the Congress” if we’re unhappy with what they're doing. In fact, we get a chance to do it every two years.

Senator Cardin, following Coburn, put it just right: “His definition of original intent is similar to some of my colleague’s definition of judicial activism . . .  you use it to get results.”

PFAW

Leahy Brings Citizens United to the Forefront in Kagan Hearings

In his opening remarks in Solicitor General Elena Kagan’s Supreme Court confirmation hearings, Senate Judiciary Committee chairman Patrick Leahy put the Court’s decision in Citizens United v. FEC at the front and center of the debate.

It is essential that judicial nominees understand that, as judges, they are not members of an administration. The courts are not subsidiaries of any political party or interest group, and our judges should not be partisans. That is why the Supreme Court’s intervention in the 2000 presidential election in Bush v. Gore was so jarring and wrong. That is why the Supreme Court’s recent decision in Citizens United, in which five conservative Justices rejected the Court’s own precedent, the bipartisan law enacted by Congress, and 100 years of legal developments in order to open the door for massive corporate spending on elections, was such a jolt to the system.

We hope to hear a lot more about Citizens United in the next few days—a ruling that a recent PFAW poll showed that 77% of Americans want to amend the Constitution to undo.
 

PFAW

Dawn Johnsen Heads Back to Indiana

“The one thing you don’t want people saying at your funeral is, ‘She went to her grave with her options open.’” That’s Dawn Johnsen, in a recent speech at the American Constitution Society, proudly declaring that she has no regrets for standing on her principles throughout her legal career, even those principles were used by the GOP to attack and eventually defeat her nomination to head the Justice Department’s Office of Legal Counsel.

Today, NPR’s Morning Edition produced a great segment on Johnsen (including some commentary from People For’s Marge Baker).

You can listen to the whole thing on NPR’s website.

Johnsen withdrew her nomination in April after spending well over a year in nomination limbo, attacked from the right over her history of supporting a woman’s right to choose and opposing Bush Administration torture policies. She was, to say the least, highly qualified. It’s a testament to her integrity that she has refused to back down from any of her statements or principles—even those that didn’t prove to be politically expedient.
 

PFAW

Ending Anonymous Holds

Last weekend, Senator Claire McCaskill put pressure on obstructionist Republicans, announcing that she had enough votes to end the Senate practice of placing anonymous holds on executive nominees. As McCaskill explained in her recent Huffington Post piece, “someone, it seems, secretly has a problem with these nominations but they don't want to be open and transparent about it.”

Apparently, the pressure worked: on Tuesday, 60 backlogged Obama choices were finally cleared by the Senate after months of Republican stonewalling. The confirmations represented a small victory over Senate Republicans’ unprecedented obstructionism, which has plagued the last year and a half of crucial legislative work. The GOP has not only placed an absurd number of anonymous holds on executive nominees; they’ve also set an all-time record on misusing the filibuster to waste the Senate’s time and slow down important government business. Even after Tuesdays slew of confirmations, dozens of nominees remain unconfirmed – as compared to only thirteen at this time in George W. Bush’s presidency.

It’s clear that the Republicans in question don’t have substantive problems with the President’s nominees. Instead, they’re abusing Senate procedure to intentionally disrupt government functions. It’s time for a change in the way the Senate operates, and thanks to Senator McCaskill and her colleagues, we may soon have one.

PFAW

Supreme Court Denies Access to Justice in Rent-A-Center v. Jackson

In yet another decision highlighting the Roberts Court's tendency to favor corporations over individual citizens, the Supreme Court on Monday made it more difficult for employees and consumers challenging their contracts to seek justice in court.

In Rent-A-Center v. Jackson, Antonio Jackson filed suit in a Nevada federal district court against his employer, Rent-A-Center, claiming that he had suffered racial discrimination and retaliation. Rent-A-Center tried to dismiss the lawsuit and force Jackson to move the dispute to arbitration, as was required by Jackson’s employment contract. The district court agreed with the company, but the Ninth Circuit court reversed, holding that when a person opposing arbitration claims that he or she could not have meaningfully consented to the agreement, the question of whether the original contract was fair must be decided by a court.

In a 5-4 opinion written by Justice Scalia, the Supreme Court overturned the Ninth Circuit's ruling, saying that Mr. Jackson failed to specifically challenge the arbitration provision in the agreement that requires challenges to the validity of the entire agreement to also be decided by an arbitrator. Previously, if an employee challenged certain aspects of a contract that included a binding arbitration clause but not necessarily the arbitration clause itself, the dispute would go to the arbitrators. However, the Court's decision expanded upon that to hold that even if an employee argues that the entire contract – including the arbitration clause – was unconscionable and therefore unenforceable, that person is still denied access to the courts unless he specifically and separately challenged the arbitration clause. In other words, arguing that the entire contract is illegitimate is not enough.

Treated as contracts, arbitration clauses waive one’s rights to go to court, meaning that any disputes must instead be settled through private arbitration. Often built into the fine print of a contract, these clauses are very common in the consumer context and usually there is little choice but to sign or not sign the contract. Most people at some point or another will become bound to an agreement with an arbitration clause, perhaps as part of a cell phone contract, a health insurance plan, or an employment contract. Although they are ostensibly for the benefit of both parties, they are primarily drafted to protect companies from litigation, as it is often too expensive for a claimant to even initiate the arbitration proceedings, much less pay the arbitrator’s hourly fees. In a telling signal of what a majority of the Court today thinks about these practical obstacles for ordinary Americans, Justice Scalia, in oral arguments, dismissed people who sign arbitration agreements as “stupid.”

Forced arbitration is an increasing problem as these clauses become standard parts of everyday contracts, but they are particularly troubling in civil rights cases such as this one. Mr. Jackson’s claim that his employer discriminated against him based on his race was brought under section 1981 of the Civil Rights Acts – legislation that was passed specifically to ensure that victims of such discrimination would have access to the federal courts. Instead, because Mr. Jackson signed an employment agreement - an agreement that he had little choice but to sign if he wanted the job - he is now precluded from asserting a violation of those rights and seeking justice in court.

As confirmed in Justice Stevens’ dissent, neither party even asked the Court for such a heightened standard of pleading, showing how once again, the Roberts Court is going out of its way to protect corporations and prevent real citizens - workers and consumers - from being able to access the federal courts.
 

PFAW

Federal Judge Ends Drilling Moratorium

This afternoon, we have another illustration that when the pull of profits goes up against protecting public safety, the personal leanings of our federal judges really do matter. The Associated Press reports:

A federal judge struck down the Obama administration's six-month ban on deepwater oil drilling in the Gulf of Mexico on Tuesday, saying the government rashly concluded that because one rig failed, the others are in immediate danger, too.

The White House promised an immediate appeal. The Interior Department had halted approval of any new permits for deepwater drilling and suspended drilling of 33 exploratory wells in the Gulf.

Press Secretary Robert Gibbs said President Barack Obama believes strongly that drilling at such depths does not make sense and puts the safety of workers "at a danger that the president does not believe we can afford."

Judge Martin Feldman, a Reagan appointee, said, “What seems clear is that the federal government has been pressed by what happened on the Deepwater Horizon into an otherwise sweeping confirmation that all Gulf deepwater drilling activities put us all in a universal threat of irreparable harm."

To be clear, in reaction to the worst oil spill ever in US waters—one that was caused by reckless decisions made by a company that had to answer to very little government regulation—the president is halting similar drilling projects until investigators can ensure that they are safe. That doesn’t exactly seem overly rash.

Yesterday, Senate Judiciary Committee Chairman Patrick Leahy said that he’d be sure that Elena Kagan is asked a lot about the role of the courts in cases involving the accountability of oil companies in her upcoming Supreme Court confirmation hearings. Today’s decision is a reminder of why that’s so important.
 

PFAW

Leahy: Senators Will Address Oil and the Courts in Kagan Hearings

Patrick Leahy, the chairman of the Senate Judiciary Committee, says he’s going to make sure the subject of oil and the courts comes up in Solicitor General Elena Kagan’s Supreme Court confirmation hearings, which begin next week. The Hill reported Saturday:

The chairman, who will guide the confirmation hearing, pointed to controversial cases slashing a damages award in the 1989 Exxon-Valdez spill incident, an environmental disaster that's now been dwarfed by the Gulf spill.

"Turning back the award in the Exxon-Valdez, I wonder if the Supreme Court would do that today as they watch what's happening in the Gulf," Leahy said on C-SPAN's "Newsmakers" program, to air this weekend.

"It wasn't the liberals who said that Exxon shouldn't have to pay the amount that a jury gave the people of Alaska for their oil spill," the Vermont senator added later, critiquing conservative judges' decisions in some cases.

We, too, wonder if the current Supreme Court’s allegiance to corporate interests would lead it to give the same sort of gift to BP as it did to Exxon in 2008, if damage claims from BP’s devastating spill make their way to the high court. In fact, the pro-corporate reflexes that led to the Court to halve a jury’s award to the Exxon spill’s victims are exactly what we’d like Kagan to address in the upcoming hearings.

Take a look at the 20 questions we’ve drafted for Kagan . We’re glad to hear that a few of them may be asked.

 

 

PFAW

Our Questions for Solicitor General Kagan

We’ve said repeatedly that Elena Kagan’s Supreme Court confirmation hearings, which start in two weeks, open up the perfect opportunity to the country to have a real discussion of the meaning of the Constitution and the role of the Supreme Court in all of our lives.

Today, we’ve tried to start the conversation by coming up with 20 questions that we would love to see senators on the Judiciary committee ask Kagan.

We want to know Kagan’s answers to questions including:

  • Should Justices respect the original intent of the Constitution’s framers, even when that intent is antithetical to our current values and the Constitution as amended?
  • Does the Constitution give corporations the same First Amendment rights as ordinary citizens?
  • Has the Supreme Court, in cases like Bush v. Gore and Citizens United v. FEC, practiced proper judicial restraint?
  • What theory would govern your evaluation of civil rights laws passed by Congress?


You can read all 20 questions—including a lot more detail—here.
 

PFAW

Chamber of Commerce Wages “Unprecedented” Campaign Against Lead Paint Lawyer

A few weeks ago, we wrote about the Chamber of Commerce’s campaign to prevent the confirmation of attorney John McConnell to be a Rhode Island district court judge, because of his work as a personal injury lawyer to hold corporations accountable for damage caused by their products.

Well, they haven’t succeeded yet, but it looks like they’ve certainly made their presence known. The Senate Judiciary Committee today approved McConnell’s nomination almost entirely along party lines—all but one of the seven Republicans on the committee voted against it.

Today’s Providence Journal reports that the Chamber sent the Judiciary Committee’s members a letter yesterday that made it very clear where they stood:


The Chamber’s letter escalates what was already an extraordinary campaign against the seating of a nominee to the federal trial bench. It is not common for nominations to these courts — dozens of which can be routinely cleared in a given year — to generate controversy. The Chamber says it is unprecedented for it to mount the kind of organized opposition it has launched against this particular U.S. District Court nominee

The Chamber, which tends to support Republicans through its campaign spending arm, has lobbied actively for changes in the system that permits large numbers of plaintiffs to seek large damage awards from companies.

“The Chamber urges you to oppose this nomination,” Josten told the Judiciary Committee in Tuesday’s letter. “Should the committee report Mr. McConnell’s nomination to the full Senate, the Chamber would consider votes on, or in relation to, this nomination in our annual How They Voted Scorecard.”

The Chamber is the biggest lobbying spender on Capitol Hill and its annual scorecard is no joke for lawmakers running for reelection. We’ll be sure to keep following the organization’s crusade as McConnell’s nomination moves to the Senate floor.
 

PFAW