Courts

Justice Souter to Retire at the End of the Term

Ending months of speculation, several news outlets reported last night Supreme Court Justice David Souter is planning to retire at the end of the term, after 19 years on the bench. People For the American Way released a statement expressing gratitude Justice Souter’s years of service to the Court, and called on President Obama to nominate “someone who can continue his work to defend our personal freedoms and ensure that every person has equal access to justice.”

On the campaign trail, then-Sen. Obama, a former constitutional law professor, told Wolf Blitzer of CNN “I I think that my first criteria is to make sure that these are people who are capable and competent, and that they are interpreting the law. And, 95 percent of the time, the law is so clear, that it's just a matter of applying the law. I'm not somebody who believes in a bunch of judicial lawmaking.” An excerpt from the transcript:

What you're looking for is somebody who is going to apply the law where it's clear. Now, there's going to be those 5 percent of cases or 1 percent of cases where the law isn't clear. And the judge then has to bring in his or her own perspectives, his ethics, his or her moral bearings. …

That's been its historic role. That was its role in Brown vs. Board of Education. I think a judge who is unsympathetic to the fact that, in some cases, we have got to make sure that civil rights are protected, that we have got to make sure that civil liberties are protected, because, oftentimes, there's pressures that are placed on politicians to want to set civil liberties aside, especially at a time when we have had terrorist attacks, making sure that we maintain our separation of powers, so that we don't have a president who is taking over more and more power.

I think those are all criteria by which I would judge whether or not this is a good appointee.

Well put, Mr. President. November’s election results were a mandate to President Obama to appoint judges committed to justice, equality, and opportunity for all Americans.

Soon after the election, People For the American Way Foundation hosted a panel called “Beyond the Sigh of Relief: Justices in the Mold of Marshall and Brennan.” It’s newly relevant, so take a look.
 

PFAW

NAMUDNO In the Supreme Court

This morning the Supreme Court heard oral argument in the case of Northwest Austin Municipal Utility District Number One v. Eric Holder, a case involving a small municipal district in Austin, Texas seeking to invalidate a key provision of the Voting Rights Act of 1965 - one of the most important civil rights laws in American history.

With the passage of the Voting Rights Act, Congress finally acted to prevent discriminatory tactics designed to prevent minorities from exercising their fundamental right to vote. Section 5, in particular, is the centerpiece of the Act, and requires certain covered jurisdictions where voting discrimination has been the most flagrant to seek a preclearance from the Justice Department or a three-judge panel of the federal court in DC for any voting related changes. According to the statute, preclearance will be given as long as the proposed change does not have the purpose or the effect of denying or infringing on the right to vote because of one’s race or color.

In this case, the party seeking to invalidate Section 5 is a municipal utility district in Travis County, Texas, that conducts elections to select the members of its board of directors. Because the State of Texas is a covered jurisdiction, the district is subject to the preclearance requirements of Section 5, and sought relief under the Act’s bailout provision in federal court in the days following the reauthorization of the Act in 2006. Alternatively, the utility district sought to invalidate the provision if it could not bailout from its requirements. It failed on both counts in the courts below.

Today’s arguments confirm that Justice Kennedy again holds the deciding vote on whether the Court will weaken or invalidate a provision upheld by the very same Court four times in the past.

To those who argue that Section 5 is no longer needed because racial discrimination no longer exists, as evidenced by the election of the country’s first African American president, look at the facts. Because of Section 5’s sunset provisions, Congress was required to re-examine whether the statute is needed and last conducted an examination of this type in 2006. The House and Senate Judiciary Committees held a combined 21 hearings over 10 months and received testimony from over 90 witnesses, including state and federal officials, experts and private citizens. And although they concluded that significant progress had been made, they recognized that “[d]iscrimination today is more subtle than the visible methods used in 1965” and concluded that discrimination continues to result in “a diminishing of the minority community’s ability to fully participate in the electoral process and to elect their preferred candidates of choice.” Congress voted 390-33 in the House and 98-0 in the Senate that, among other things, Section 5 was still necessary.

We hope that Justice Kennedy will remember the extensive record finding Congress performed in 2006 and remember his words earlier this year when he wrote in Bartlett v. Strickland, “Still, racial discrimination and racially polarized voting are not ancient history. Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions. . .”


Deborah Liu is General Counsel to People For the American Way, which is a defendant-intervenor in the case.

PFAW

We couldn't have said it better

Republicans are trying to paint OLC nominee Dawn Johnsen as "out of the mainstream." Rachel Maddow turned the tables on them last night in an interview with Salon's Dahlia Lithwick. Lithwick noted that Republicans are creating a storm — threatening to filibuster — because of two things: First, that Johnsen was ahead of her time in pointing out what everyone now knows about how bad the OLC memos were, and second, that she's pro-choice... hardly positions that place her "out of the mainstream" since, unfortunately for Republicans, those views are shared by most Americans.

A bit from the interview:

Lithwick: This is a dry run for future confirmation wars. ... She's been very vocally critical of the work that happened at the OLC in the Bush administration. ...

I think this has nothing really to do with Dawn Johnsen It's sort of a little warm up, a practice run for when they REALLY go after someone in a confirmation hearing for the courts. ...

Maddow: At Johnsen's confirmation hearing there was one comment from Republican Senator Jeff Sessions that stuck with me because he accused her of, and I'm quoting here, "blogging, advocating, and speeching for the opposite sides." Essentially he's saying, "She's got a side, she has known positions on things." Does it make any reasonable sense that would be an objection to an OLC candidate?

Lithwick: Well, it's doubly paradoxical if you think about it, because the thing she was blogging and "speeching" about was torture! It was how bad OLC was and how sloppy their work was. So it puts the Republicans in this awful position of having to say "Because the work they did in the Bush OLC was terrific. How dare they call it into question?" ... This is an issue on which she was very clear — before the rest of us were clear — that the memos were bad, the lawyering was sloppy, and that torture was torture.

And video:

Visit msnbc.com for Breaking News, World News, and News about the Economy

There was also a segment at the beginning of the show about impeaching Jay Bybee that was good. Watch it here.

PFAW

David Hamilton to Appear on the Hill. Again.

We just got word from the Senate Judiciary Committee that Republicans are going to get another shot at questioning Judge David Hamilton, President Obama’s first judicial nominee who is being put forward for a seat on the Court of Appeals for the Seventh Circuit.

Senator Leahy is indeed bending over backwards to accommodate Republicans, who, as we’ve reported, threatened to filibuster the President’s judicial nominees before a single name was put forward and who boycotted Hamilton’s first hearing, because they claimed they did not have enough time to prepare, prompting Senator Leahy to ask their questions for them.

As Senator Leahy said in making the announcement of this rare second hearing, “It has been four weeks since Judge Hamilton first appeared before the Committee, and I am disappointed that Committee Republicans have yet to ask a single question of this nominee.” Hopefully, this time the Republicans will show up and ask their own questions. Judge Hamilton is eminently qualified for this position – his nomination should not be further delayed.
 

PFAW

GOP Boycotts Hamilton Hearing

I’m just back from the Senate Judiciary Committee hearing on the nomination of Judge David Hamilton to the Court of Appeals for the Seventh Circuit, which the Republicans on the committee boycotted because they claimed they had not been given sufficient time to prepare for the hearing. In an ironic twist, the hearing was held in a small room off of the Senate floor—the same room that Senator Leahy, the Chair of the Committee, used to continue holding hearings on President Bush’s judicial nominations in the immediate aftermath of September 11th.

As Senator Leahy noted today, the Democrats on the Committee have a better record of pushing through Republican judicial nominees than the Republicans had when they were in charge. Yet today, the Republicans once again were all about trying to delay the process, and we’re now even seeing complaints that the hearing was moved to the Capitol, a move which actually helped accommodate Senators who needed to be on the floor to vote on budget amendments.

In the absence of the Republicans, Senator Leahy ended up asking Judge Hamilton about cases that Senator Specter had identified as potentially problematic – in other words he asked the Republicans questions for them!

David Hamilton is eminently qualified to sit on the Seventh Circuit. We hope the Committee will move his nomination forward when the Senate returns from its upcoming two-week recess.

PFAW

Justice O’Connor Speaks Out. Kinda.

The New York Times has a short interview of former Supreme Court Justice Sandra Day O'Connor, and it’s interesting to see all the topics she doesn’t want to talk about.

Whom did you vote for in the presidential election?

Come on, is this about my Web site?

She dodges a question about Harriet Miers and declines to call herself a feminist, but one thing O’Connor doesn’t hold back on is her desire to see another woman appointed to the Court.

It was better for me when I was joined at the court by a second woman. When I was there alone, there was too much media focus on the one woman, and the minute we got another woman, that changed.

Makes sense.

Diversity on the Court—in all its many forms—was a big topic at our recent Beyond the Sigh of Relief panel. Take a look if you haven’t already.

PFAW

Obama's First Judicial Nomination: A Good Start

News reports state that David Hamilton, a federal district court judge in Indiana, will be President Obama’s first judicial nominee. He will apparently be nominated to serve on the United States Court of Appeals for the Seventh Circuit.

I am just learning about Judge Hamilton. In 2005, according to the New York Times, "he made news by ruling that the legislature was prohibited from beginning its sessions with overtly Christian prayers. The decision drew widespread criticism in the legislature and across the state."

I can only imagine.

The overwhelming majority of Indianans are Christian. I’d venture to guess that very few of them have ever lived in a society where theirs was a minority religion, and where the government officially promoted a religion that condemned theirs. The experience of their lives is one where they are comfortably in the majority.

As a Jew who grew up in conservative Texas, my experience is different. I know how it felt in elementary school when public school teachers imposed their Christianity upon the classroom. Officially-sanctioned Christianity regularly made it clear that I was an outsider in my own society: I did not belong.

That is but one of the many excellent reasons that the Founders wisely adopted the First Amendment’s prohibition of the establishment of religion by government. But it’s the one that first occurred to me as I read about the Indiana legislative prayer case.

It is important that judges as a group reflect the diversity of America, so the bench is filled with jurists with a wide variety of life experiences, ranging from the top to the bottom of the social ladder. But that does not excuse the individual judge from being able to step outside their own life experience and recognize that what is not a problem for them can be a severe problem for someone whose life has been different. That is an essential quality for a judge. It’s what made the Brown v. Board of Education decision so different from Plessey v. Ferguson, even though both cases were decided by all-white Courts. Similarly, it’s what made 1976’s Craig v. Boren (establishing a higher level of scrutiny for legal sex-based classifications) so different from 1872’s Bradwell v. Illinois (upholding the state’s prohibition against women attorneys), even though both cases were decided by an all-male Court.

Perhaps Judge Hamilton’s ability to step outside his own experiences helped him decide the legislative prayer case. Either way, he clearly was willing to enforce the First Amendment and clear Supreme Court precedent in a case where he knew that he would be condemned by many people in his state. He put the law over ideology. That’s another quality needed in a judge.

This is an encouraging first judicial nomination from President Obama.

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NYT: Who's Filibustering Now?

Great editorial in New York Times this morning recognizing the hypocrisy of Senate Republicans threatening to filibuster President Obama's judicial nominees well before any are named and urging Senator Leahy to let the blue slip process -- under which senators get a way to block judicial nominees from their home state -- die quietly. The editorial very eloquently echoes some of the most important points People For the American Way has been making for weeks, and it is definitely worth reading.

When President George W. Bush was stocking the federal courts with conservative ideologues, Senate Republicans threatened to change the august body's rules if any Democrat dared to try to block his choices, even the least-competent, most-radical ones. Filibustering the president's nominees, they said, would be an outrageous abuse of senatorial privilege.

Now that President Obama is preparing to fill vacancies on federal benches, Republican senators have fired off an intemperate letter threatening -- you got it -- filibusters if Mr. Obama's nominees are not to their liking. Mr. Obama should not let the Republicans' saber-rattling interfere with how he chooses judges.

Read the whole article.

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Supreme Court Dismisses Al-Marri Case

Today, the Supreme Court dismissed the appeal by Ali al-Marri, who has been in federal custody in South Carolina since January 2002 when Bush designated him as an enemy combatant, claiming that he was an al-Qaeda sleeper agent. The order was in response to the Obama administration’s important move last week in filing criminal charges against al-Marri after 9 long years of detention without review by Bush, a move which transformed al-Marri’s detention to a criminal matter that will be heard in the normal course through the federal courts. He’ll now have the right to a speedy trial, be able to confront his accusers, the right to the effective assistance of counsel – the whole shebang.

The Obama administration’s decision to take this bold step shouldn’t go unnoticed to those of us who have been staring in paralytic shock over the last 8 years during which the Bush administration did whatever it wanted to foreign nationals and citizens alike in its “war against terror”. Bush even deemed as unpatriotic the notion that a federal court could ever review what the president does or why during a time of war – however, unconventional that war may be – thereby delivering a one-two punch to the constitutional principles of freedom of speech and separation of powers. Both of these, by the way, were swiftly decimated by Bush lawyers as revealed in the recently disclosed OLC memos.

In this case, the new administration correctly did what some have been saying all along – if there is evidence of wrongdoing, charge the individual with a crime and allow him to be tried in a civilian criminal court. The government has the tools to prosecute suspected terrorists and has done so in the past. It is clear that our courts can address the real concerns of national security, even during times of war, without reversing decades of due process jurisprudence. 

PFAW

The Right Re-Tools as 'Resistance Movement'

Another week, another clear example of who is pulling the strings in the Republican Party. On Monday, Republicans in the Senate -- all 41 of them -- sent a letter to President Obama all but demanding that he re-nominate three of President Bush's nominees and threatening filibusters if the president does not do what they want with his future judicial nominations.

It was only a few years ago that the GOP wanted to eliminate the judicial filibuster entirely, telling anyone who would listen that every judicial nominee deserved an up-or-down vote without exception. Apparently, the Senate Republicans have the collective memory of a goldfish.

Of course, these senators' attempt to force "bipartisanship" at gunpoint, to coerce the president with threats, is one giant pander to their extreme right-wing base. The Far Right wants to maintain conservative majorities on the most powerful courts in the country. And they want senators to do everything in their power to block judges that don't meet their strict litmus tests on everything from Roe v. Wade and gay rights to free speech and the separation of church and state -- and much more.

This is one more example in a long list of the GOP marching in lockstep to the Radical Right's orders in just the last few weeks:

  • In the spirit of Rush Limbaugh's clarion call to conservatives to hope for President Obama's failure, 100% of the Republican caucus in the House voted against the majority's stimulus package last month.
  • Some Senate Republicans have been following through on the Radical Right's challenges to the president's Department of Justice nominees, this week moving to delay a floor vote on the confirmation of David Ogden.
  • And earlier this week, RNC Chairman Michael Steele was forced apologize to the real leader of his party after making some comments seen as critical of Rush Limbaugh -- proving that Limbaugh and other extremists are calling the shots within the party.

People For the American Way just released a very timely Right Wing Watch In Focus on the status of the Radical Right's strength and influence (available here). Please read it and share it with your friends and fellow activists.

There has been much talk in the media about the Republican Party and even the Conservative Movement being lost in the wilderness. But the leadership vacuum is being filled with the most fringe elements of that side of the political spectrum. The Far Right is stronger than ever ... and the weakness of one of the major parties has provided a huge opportunity for them to assert that strength.

AND we've released our own take on Limbaugh's recent comments which is a must watch. Please take a moment to watch the video and then send a message to Rush telling him to GROW UP. Then tell your friends to check it out at www.BabyRush.org.

PFAW

Republican Senators Make Threats on Judges, Try to Force "Bipartisanship" at Gunpoint

From Poltico:

President Barack Obama should fill vacant spots on the federal bench with former President Bush's judicial nominees to help avoid another huge fight over the judiciary, all 41 Senate Republicans said Monday.

...

"Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee," the letter warns. "And we will act to preserve this principle and the rights of our colleagues if it is not."

In other words, Republicans are threatening a filibuster of judges if they're not happy.

The letter talks about "bipartisanship" and, separate from the letter, several Republicans have been warning the president for some time against nominating "far left judges." But for all this talk about "bipartisanship" and throwing terms around like "far-left judges," what do they really mean?

Does bipartisanship mean nominating half right-wing judges who would overturn Roe v. Wade and don't believe in the Constitution's promise of equal rights under the law; half who agree that the Constitution makes certain guarantees in terms of people's rights and liberties and that it gives the government the authority and the responsibility to protect those rights, not undermine them?

Or does it mean that all of the president's judicial nominees must be "moderates," and if so, what is their definition of "moderate?" Is a moderate someone who is respectful of fundamental constitutional rights and principles like privacy, equality, the right to choose and checks and balances… as long as they are pro-corporate? We already have a Supreme Court that is overwhelmingly pro-business, much more so than many precious Courts, including the four supposedly "liberal" Justices.

Of course that's probably not the case (not that the president should feel compelled to nominate judges with a corporate-friendly bent anyway, especially now that we are in the middle of the havoc wreaked by corporate greed and excess, but I digress).

When it comes to this issue, what they really care about is pleasing their base. And when it comes to their base, the ONLY judges who are acceptable are extreme right-wing ideologues. So any actual "moderate," mainstream judges of course will be rejected -- and they will be cast as "far-left."

The Right sees the Judicial Branch in very black and white terms. They have accused the Democrats of having a litmus test on judges when it comes to Roe v. Wade. But that was obviously proven wrong by the fact that both Chief Justice Roberts and Justice Alito were confirmed even though they both, according to many experts, would vote to overturn Roe. No, it's the Right that has strict litmus tests on everything from Roe v. Wade and gay rights to free speech, the separation of church and state and, yes, how "business-friendly" a judge may be. Their base demands it! And Republican Senators -- even the so-called moderates like Snowe, Collins and Specter -- are unified on this one.

The judicial philosophies of the jurists respected by the Right are defined by extremism -- plain and simple. It's one thing for a judge to find legal exception with the way a certain case was decided (even if that decision protects a fundamental right, like Roe v. Wade), but quite another to subscribe to theories and views that fly in the face of mainstream judicial thought like:

  • "Constitution in Exile," which takes an extreme and limited view of the Commerce Clause and basically states that the regulatory policies of the New Deal were unconstitutional... and a huge number of policies and Supreme Court decisions going back nearly a hundred years, including civil rights protections, are unconstitutional as well. (Opinions expressed by Clarence Thomas and Antonin Scalia support "restoring the lost constitution.")
     
  • "Unitary Executive Theory," which has been used to justify insanely expansive views of executive power that defy the most commonsense understanding of our founding principles relating to checks and balances and a limited executive (remember, our founders were breaking from a monarchy - they obviously didn't want to create another one). The Bush administration exploited this theory over and over again its now infamous abuses of executive power.; and
     
  • a blatant disregard for the bedrock judicial principle of stare decisis (which Justice Clarence Thomas is said, even by Justice Scalia, to show).  

This is par for the course for right-wing judges. While those of us on the progressive side are not devoid of ideology, and are proud to have our own ideology when it comes to the Constitution and the law, the Right is by far more ideological and Republicans need to be called out for doing the Far Right's bidding once again.
 
President Obama and the Senate Democrats should challenge these Republican Senators to define their terms more specifically -- to tell them and the country EXACTLY what they mean by "bipartisanship" in this case and what they would consider acceptable or "moderate" nominees.  And the president should reject the GOP's attempt to force bipartisanship at gunpoint, by making threats and trying to use coercion to get him to appease their base on judges.

PFAW

On Fair Courts and Big Coal

Today in the Supreme Court, a case was argued that makes a pretty compelling case for a fair and independent judiciary. Robert Barnes at the Washington Post did a good overview yesterday.

Caperton and his little coal company sued a huge coal company on claims that it unlawfully drove him out of business, and a jury agreed, awarding him $50 million.

That company's chief executive vowed an appeal to the West Virginia Supreme Court -- but first, he spent an unprecedented $3 million to persuade voters to get rid of a justice he didn't like and elect one he did.

Today during arguments the Court was (no surprise) divided. But the real principle may be bigger than simply campaign donations.

The Constitution sets up the judiciary as the branch of government dedicated to ensuring that the rule of law applies equally to all people. When it's broken – or perceived to be broken, -- there's scant reason for citizens to put their full faith in the government. And yet over the last years, President Bush has systematically flooded the courts with jurists who put political ideology over our most basic constitutional principles.

No longer fearing the worst when it comes to judicial appointments is, well, a big sigh of relief, but this case makes very clear how crucial it is that we repair the damage eight years of George Bush has done.

PFAW

The Party of NO Targets the Courts

Just last week I wrote about the Republicans as the Party of NO after their reflexive and not very wise decision to prevent two DOJ nominees, Elena Kagan and Tom Perrelli, from being voted on in Committee. This week they were at it again with a threat to filibuster President Obama's judicial nominees before a single nomination has even been submitted. You can read our Right Wing Watch post on their hypocrisy here. And you can read People For president Kathryn Kolbert's statement here. I particularly like her pointing out that Senate Republicans, who argued vigorously against filibusters in their previous incarnation apparently "have the collective memory of a goldfish."

PFAW

Hardly the End of DOMA.

Late last week, you may have seen headlines about a federal judge on the U.S. Court of Appeals for the Ninth Circuit who ruled the Defense of Marriage Act unconstitutional. For anyone in favor of equal justice under law (and opposed to DOMA) this was good news. Unfortunately, the ruling is extremely limited. For your convenience, we’ve answers a few of the questions we've heard about the decision.

Q: What happened?

A: The case involved Brad Levenson, a public defender in the federal court system whose employer -- the Office of the Federal Public Defender -- denied his husband spousal health insurance benefits because of the Defense of Marriage Act (DOMA). Rather than simply accepting this state of affairs, Levenson filed a complaint with his employer -- the 9th Circuit Court of Appeals.

Judge Stephen Reinhardt of the Ninth Circuit heard the case and issued a ruling that DOMA is unconstitutional, finding no rational basis to deny benefits to some legally married spouses and not to others.

Q: So does that mean DOMA is no longer in effect, at least within the states comprising the Ninth Circuit?

A: No, DOMA is still in effect there and everywhere else throughout the country.

Q: Why is that? Doesn't a circuit court opinion bind all federal courts within that circuit?

A: Yes, a circuit court opinion usually does just that. Normally, a circuit court opinion comes either from a three-judge panel or from all of the circuit judges. But this opinion came from just one judge, and it was more like an internal, administrative employment dispute resolution opinion.

Q: Why isn't it a regular court opinion?

A: Because the married couple claiming discrimination did not go to court and sue the federal government for the spousal benefits. Instead, Levenson, in his status as an aggrieved employee of the Office of the Federal Public Defender, filed an administrative complaint with his employer.

So Judge Reinhardt did not issue his opinion in his role as a federal appellate judge deciding the appeal of a lower court's legal holding in a conflict between two parties. Instead, he was acting in his capacity as the designated administrative decision-maker for the Ninth Circuit's Standing Committee on Federal Public Defenders.

Q: Circuit Court opinions are binding on lower courts in that circuit. Who is bound by Judge Reinhardt's decision on DOMA?

A: This is an internal administrative ruling by an employer about one employee's benefits. It certainly helps Brad Levenson and his husband. But in his capacity as the administrative decision-maker who was designated to hear Levenson's case, Judge Reinhardt doesn't hold a hierarchically superior position over the next decision-maker in the next employment dispute in the Office of the Federal Public Defenders within the Ninth Circuit.

Q: There was another case last month where a Ninth Circuit judge ordered the government to provide benefits to a same-sex spouse. Will that have more of an impact?

A: Not at all. It was another case where the judge was acting as the decision-maker in an employment dispute resolution. It involved a Ninth Circuit employee covered by the employment dispute resolution plan specifically applicable to Ninth Circuit employees, as opposed to the one applicable to members of the Federal Public Defender system.

In fact, when Judge Reinhardt issued his decision last week, he explicitly said that he was not bound by the January ruling, because two different employee dispute plans were involved. That shows how these decisions have little to no value as binding precedent.

Q: Is either case going to be appealed to the Supreme Court?

A: No, because these employment dispute resolutions are not regular Circuit Court opinions released as part of a criminal or civil judicial proceeding.

Q: Has anything changed for the widow who is denied her late wife's Social Security pension benefits, or for the American man whose non-citizen husband is threatened with deportation?

A: No. DOMA still denies gays and lesbians the more than one thousand federal rights and responsibilities that come with marriage. Last week’s news doesn't change that.

Q: What about a legislative remedy instead of a judicial one? Can Congress repeal DOMA?

A: Yes, definitely. President Obama is already on board and has called for repeal of this hateful law. We all need to work hard as hard as ever to get Congress to act.

PFAW

U.S. Ranks 36th in Press Freedom Index

Reporters Without Borders released its annual Press Freedom Index today.

The good news: the United States moved up 12 points from last year. (A higher ranking indicates more press freedom.) The bad news: we're still only #36 out of the 173 countries indexed.

RWB explains in its methodology (found here as a PDF) that press freedom is measured by several factors, including the frequency with which journalists are murdered, imprisoned, or threatened; how often the news media is censored; whether those who infringe press freedoms tend to be punished for their actions; and the degree to which a country's press self-censors.

Here's RWB's explanation of why the U.S. did better this year, but still not well enough to write home about: 

The United States rose twelve places to 36th position. The release of Al-Jazeera cameraman Sami Al-Haj after six years in the Guantanamo Bay military base contributed to this improvement. Although the absence of a federal “shield law” means the confidentiality of sources is still threatened by federal courts, the number of journalists being subpoenaed or forced to reveal their sources has declined in recent months and none has been sent to prison. But the August 2007 murder of Oakland Post editor Chauncey Bailey in Oakland, California, is still unpunished a year later. The way the investigation into his murder has become enmeshed in local conflicts of interest and the lack of federal judicial intervention also help to explain why the United States did not get a higher ranking. Account was also taken of the many arrests of journalists during the Democratic and Republican conventions.

(via ThinkProgress)

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The Choice Is Clear

If you haven't already gotten a chance, be sure to read Joan Biskupic's article on the Supreme Court in today's USA Today, a good primer on the choice that voters face on Election Day.

The appointment of life-tenured judges can be an administration's most consequential legacy, as Obama and McCain observed in last week's debate. Five of the nine Supreme Court justices are age 70 or older, so a new president might have to make multiple appointments.

Because the court is tightly split over issues such as abortion rights, race-based policies and the handling of Guantanamo Bay detainees, even a change of one justice could alter the law across the nation for decades to come.

The article does contain one line of very generous understatement.

[Palin] has invoked God on public occasions and suggested she does not believe in a high wall to separate church and state.

I think that's a pretty safe inference.

The website also offers a fun little SCOTUS quiz.  (I don't mean to brag, but I aced it.)

PFAW

Biden on Bork

At the Vice Presidential debate last night, Joe Biden referenced his leadership against Robert Bork’s nomination to the Supreme Court.

And it didn't take me long -- it was hard to change, but it didn't take me long, but it took about five years for me to realize that the ideology of that judge makes a big difference.

That's why I led the fight against Judge Bork. Had he been on the court, I suspect there would be a lot of changes that I don't like and the American people wouldn't like, including everything from Roe v. Wade to issues relating to civil rights and civil liberties.

Biden is entirely correct.  The ideology of a judge matters immensely.  Right wing judges who bring a political agenda to the courts have no business being nominated or confirmed.

Of course, Joe Biden wasn’t alone in leading the fight against Bork.  People For the American Way led the campaign in the public arena, including this ad, narrated by Gregory Peck.

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Double Talk Express: McCain and Fair Pay

At a town hall meeting last week, John McCain appeared to pledge in earnest to fight discrimination and, if necessary, take offenders to court:

But it was McCain who sided with corporate lobbyists earlier this year and opposed the Lilly Ledbetter Fair Pay Act. Why, you might ask? He claimed “it would lead to more lawsuits.”

Later, at a different town hall meeting, he told a 14-year-old girl that the Fair Pay Act wouldn’t help anyone but “trial lawyers and others in that profession.”

What’s worse, McCain has helped confirm hundreds of right-wing federal judges to the very courts that he claims he would use to fight discrimination. The problem is, those judges – including Chief Justice John Roberts and Justice Samuel Alito – have consistently whittled away at Americans’ protections against discrimination. And they’ve made it increasingly difficult for those Americans’ who do suffer discrimination to win just compensation.

The Ledbetter Fair Pay Act, for instance, was created to undo the damage done by the Supreme Court in the Ledbetter ruling, which made it easier for companies to get away with pay discrimination. McCain not only endorsed the ruling, but he has vowed to nominate more judges like the ruling’s author – Justice Samuel Alito.

If McCain wanted to try some real straight talk for a change, he’d simply tell the women of America that under a McCain administration, they’d be on their own.

PFAW

More on the Human Toll

Earlier this week, People For the American Way Foundation released its Human Toll report with eye-opening stories of American men, women and children whose cases have come before judges nominated by George W. Bush and confirmed by the Senate. It puts a human face on the dangers posed by the political ideology of Bush judges. They are not alone in coming to this conclusion.  Check out this op ed in the Seattle Post-Intelligencer. And check out as well this piece in the Legal Times on the recent Brookings Institution study indicating that under a McCain presidency, Republicans could increase their current 15 percent majority on federal courts of appeals by another 18 percent.  Thanks to my colleague Glenn Sugameli at Earthjustice for bringing these items to my attention.

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Bad Medicine

Legal terms are often so dry that it's hard to get excited about them.  After all, who could possibly be affected by something as abstract as "preemption?"

From the Times:

In the spring of 2000, suffering from a migraine, Ms. Levine visited a clinic near here for a treatment she had received many times: Demerol for the pain and Wyeth’s drug Phenergan for nausea.

“Nothing wrong with either drug,” Ms. Levine said. “They’re both safe when given the right way.”

But if Phenergan is exposed to arterial blood, it causes swift and irreversible gangrene.

You can imagine how this story ends.  Diane Levine, a musician, lost her arm because of improperly administered medication (which didn't give appropriate warning on the lable), and now the pharmacutical company insists that she's not allowed to sue under state law.

Now the case is coming to the Supreme Court, which hasn't been a particularly good friend to people like Ms. Levine these last few years.

This is a perfect example of the up-is-down, black-is-white argument that the right has been making (and winning) in courts: that the FDA should protect pharmacutical companies, not individual Americans, when something goes horribly wrong.

PFAW