Filibuster

According to the Daily Beast, the GOP is threatening to filibuster President Obama’s legal nominees if he moves to release the infamous “torture memos” that came out of the John Yoo-era Office of Legal Counsel:

A reliable Justice Department source advises me that Senate Republicans are planning to “go nuclear” over the nominations of Dawn Johnsen as chief of the Office of Legal Counsel in the Department of Justice and Yale Law School Dean Harold Koh as State Department legal counsel if the torture documents are made public. The source says these threats are the principal reason for the Obama administration’s abrupt pullback last week from a commitment to release some of the documents. A Republican Senate source confirms the strategy. It now appears that Republicans are seeking an Obama commitment to safeguard the Bush administration’s darkest secrets in exchange for letting these nominations go forward.

It was bad enough that George W. Bush spent the last eight years politicizing the Department of Justice and degrading the rule of law. Now, instead of working with the new administration to clean up the DOJ, Republican Senators are apparently doubling down and desperately attempting to cover up the Bush Administration’s misdeeds and their own complicity.

As several of the Democrats on the Senate Judiciary Committee said during the Committee’s vote on Dawn Johnsen’s nomination: bring it on. If the GOP wants a public debate about what’s been going in on the Justice Department, that’s the kind of debate the American people will understand.

In the mean time, now would be a good time to remind every member of the U.S. Senate, Democrat and Republican alike, that it’s time to confirm Dawn Johnsen and clean up the DOJ.

As weeks go, I think this has been a fascinating look at the Republican obstruction machine – and how willing they are to play politics with our future.

First, the Republicans fumed and fumed about the omnibus appropriations bill, as President Obama explained, last year’s undone business that had to be taken care of to move on to the urgent problems facing us. They held it up over the weekend, forced votes on a whole bunch of amendments this week that they knew wouldn’t pass just so they could try to play “gotcha” with the Democrats and then passed the bill on a voice vote. So much for principled opposition! 

Then they fumed and fumed about how horrid David Ogden was – this is President Obama’s and Attorney General Holder’s eminently qualified choice to be the second in line at the Justice Department.  They wrung their hands about “hard left radicals” who have endorsed Ogden, such as the Center for Missing and Exploited Children, the Fraternal Order of Police, and the National District Attorneys Association.  The Republicans slow-walked the nomination through Committee and then threatened a filibuster in the full Senate, but couldn’t muster the votes.  The right-wing Family Research Council said they’d “score” the vote in an effort to hold senators accountable for the dastardly act of voting for Ogden and then today he was voted on by the full Senate and received a resounding 65-28 vote! Clearly the final result was not in doubt.

So what were these histrionics about?  And how long can they justify playing politics with America's future?

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.

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.

Earlier this week, People For the American Way Foundation hosted -- and I moderated -- a panel at the National Press Club to discuss what the election of Barack Obama means for the future of the Supreme Court and what kind of justices we should be fighting for. The event's title, "Beyond the Sigh of Relief," says a lot in itself, and it's fantastic that our conversation could focus on the prospects for a return to justice on the High Court rather than strategizing about how to forestall complete disaster.

I hope to have video of the full discussion to share with you in a week or two. The next day, Maryland State Senator and Constitutional Law Professor Jamin Raskin (who was on the panel) and I were on Pacifica Radio in a very substantive joint interview on the same topic. You can listen to that segment here.

Sen. Raskin is also the director of the Marshall-Brennan Constitutional Literacy Project and shares my passion for civic education -- I've known and worked with him for years, going back to my time at Justice Talking. The other phenomenal panelists were: Julius Chambers, former director of the NAACP Legal Defense Fund and founder of Ferguson Stein Chambers Gresham & Sumter PA; John Payton, President, NAACP Legal Defense and Educational Fund; and one of the finest Court journalists out there, Dahlia Lithwick, Senior Editor of Slate.

Any conversation about the future of the Court needs to start with acknowledging the voter mandate Obama received on Election Day to appoint judges with a strong commitment to constitutional rights and values. Redefining the conventional wisdom that the Supreme Court is an issue that only the Right Wing cares about, this time it was Obama voters who said that the Court was extremely important to them.

Here were a few quick highlights from the rest of the event:

• Julius Chambers made some great points about the Court's role in protecting the poor. It's not just disputes over civil rights for minorities, workers rights and environmental protections on which the Court must sometimes weigh in when the government or companies violate constitutional rights. The poor deserve to be protected by the Constitution like we all do, and too often, they certainly do not receive equal justice under the law.


• There was much discussion about promoting racial and gender diversity on the Court and there was a consensus among us that race, religion, gender and even sexual orientation could be important considerations because they can bring different perspectives to the Court. John Payton in particular stressed just how vital this diversity of perspectives is in having a Court that functions for the best benefit of the people and the law. We also speculated on the pedigrees and career tracks of recent and not so recent nominees -- why should they all come from the corporate world or the major law firms? There are tremendous lawyers working to advance justice at places like nonprofit organizations and unions.


• Dahlia Lithwick stressed that we need to make sure people know that the judicial philosophies we believe in are based on rigorous interpretation and a sincere love of the Constitution. The public debate over judicial philosophies has too often bought into the Right's claims that so-called "strict constructionism" is the only rigorous approach to the Constitution. But the ideals embodied in both the main articles of the Constitution and the amendments are what John Payton referred to as "aspirational" -- and it's that aspirational view of the law and justice that we subscribe to and that we think President-elect Obama does as well. It's an understanding that the Constitution is a guardian of rights and opportunity for all Americans, including those without much power in our society.

The stimulating conversation left me feeling optimistic about advancing the constitutional principles that have been under attack from right-wing organizations and the Bush administration. After eight years of seeing right-wing ideologues nominated to the federal bench, there is immense opportunity to restore constitutional values. The only thing standing in our way is the Right and the senators who are already gearing up to fight good nominees -- senators like John Kyl (R-AZ), who promised a filibuster of any Court nominee he deemed too liberal... only three days after the election.

People For the American Way will be ready for Sen. Kyl, other right-wing senators and the Right's media echo chamber. Together, we'll make sure President Obama fulfills his mandate to give Americans the Supreme Court justices they deserve.