Supreme Court

Corporate Spending Run Amok in Florida

One week before the Florida primary, Republican candidates Rick Scott and Bill McCollum have spent a combined $51.2 million in the fight for their party’s nomination for governor. Rick Scott, the former head of the HCA/Columbia hospital conglomerate, already spent close to $38 million on his gubernatorial bid. In order to compete with Scott’s massive self-financed war chest, Bill McCollum, a former congressman and Florida’s current attorney general, has reached out to corporations to back his campaign.

Two political action committees have emerged to support McCollum’s campaign: the Sunshine State Freedom Fund and the Florida First Initiative. The Sunshine State Freedom Fund has received tens of thousands of dollars from corporations, including a $25,000 donation from the car dealership chain AutoNation.

The McCollum-allied Florida First Initiative obtained even more money from corporate backers, receiving $100,000 from Progress Energy and $50,000 from the insurance company Blue Cross Blue Shield. Most noticeably, the League of American Voters Inc. donated a whopping $600,000 to the Florida First Initiative. But as Steve Bousquet and Marc Caputo of the Miami Herald point out, the League of American Voters “does not have to disclose its donors under federal tax law because it is a 501(c)4 nonprofit activist group.”

However, the reporters found out that the “secretive political committee” received a large amount of its funding from U.S. Sugar Corp. In fact, according to Bousquet and Caputo, U.S. Sugar Corp. is spending around $1.1 million altogether to prop up McCollum’s campaign for governor. U.S. Sugar Corp’s enormous funding to back Attorney General McCollum is especially troubling considering that the State of Florida is currently purchasing land from the same corporation, a project that involves the Attorney General’s office and the state’s future governor.

As a result of the Supreme Court’s Citizens United decision, we may see Florida-like levels of corporate involvement elsewhere. Already in states like Minnesota, where barriers to corporate electioneering came down following the Citizens United ruling, corporations have dramatically increased their role in supporting particular candidates for office. Because of Citizens United, the enormous amount of corporate election spending witnessed in Florida may become the norm in other races across the country.

PFAW

What Citizens United has to do with Rod Blagojevich

Last night, a federal jury in Chicago convicted Illinois governor Rod Blagojevich on just one of 24 counts of political corruption. On the rest of the counts, the jury was hopelessly deadlocked.

Scott Turow, the bestselling novelist who started his career as a US Attorney prosecuting political corruption cases in Chicago, writes in the New York Times that whatever the fuzziness of fact in the Blagojevich case, what is even fuzzier is the way our legal system deals with political corruption. The influence of big money is everywhere in our political process—and the Supreme Court’s decision in Citizens United opened the door for less showy, but equally problematic, versions of the corruption that Blagojevich is accused of.

Indeed, in Citizens United v. Federal Election Commission, the court decided that such organizations could spend as much as they wished at any time, assuming there was no direct coordination with the candidate. In doing so, the court overturned its own precedents and refused to distinguish the free speech rights of corporations and unions in any way from those of actual people.

The problem with this logic is that corporations have a legal duty not to spend money unless it is likely to improve profits. Unions, too, are expected to make only contributions that will benefit members. As a result, no idealistic patina of concern about good government or values-driven issues can burnish these payments.

The future of other campaign finance restrictions looks bleak. Thirty-four years ago, when the Supreme Court first declared in Buckley v. Valeo that the First Amendment protected election spending, it nonetheless approved contribution limits “to prevent ... the appearance of corruption.” In Citizens United, the Roberts Court gave short shrift to any concern about appearances. Limits on direct contributions to candidates appear likely to be the next campaign safeguard to fall.

In any case, the bevy of ways in which donors can get around current spending laws, combined with the Supreme Court’s elastic approach to the First Amendment, have left our campaign finance system as little more than a form of legalized influence-buying. Only those as naive as Wanda Brandstetter or as crass and ham-handed as Rod Blagojevich find themselves subject to prosecution, while others wise enough to say less out loud find snug protection in the First Amendment, no matter how bald their desire to influence government actions.

We see daily examples of this sort of dynamic happening in elections—take the Florida governor’s race--where any causal relationships between campaign cash and policy decisions can never be fully sorted out. It’s a dangerous thing for democracy…and one, as Turow points out, we aren’t going to fix without a Constitutional amendment.
 

PFAW

Senators Set the Record Straight on Just Who the “Activist” Justices Are

A recent PFAW poll revealed that the vast majority of Americans are intensely concerned about the growing corporate influence in our country and disagree with the Supreme Court’s decision in Citizens United. Judging from numerous remarks made during last week’s Senate hearings on Elena Kagan’s confirmation to the Court, it seems that many of our elected representatives feel the same way. Though Republicans attempted to vilify Kagan (and Thurgood Marshall!) with accusations of judicial activism, Democrats fired back, pointing out that in fact it is the conservative Court majority that has employed such activism in going out of its way to side with corporate America. Senators used the floor debate to decry the Roberts Court’s record of favoring corporations over individuals and its disregard for Congressional intent and legal precedent:

Senator Schumer:

The American people are reaping the bitter harvest from new laws that have been made and old precedents that have been overturned. Put simply, in decision after decision, this conservative, activist Court has bent the law to suit an ideology. At the top of the list, of course, is the Citizens United case where an activist majority of the Court overturned a century of well-understood law that regulated the amount of money special interests could spend to elect their own candidates to public office.

Senator Gillibrand:

Narrow 5-to-4 decisions by a conservative majority have become the hallmark of the Roberts Court. These decisions have often been overreaching in scope and have repeatedly ignored settled law and congressional intent. For example, in the Citizens United case, the Court not only disregarded the extensive record compiled by Congress but abandoned established precedent.

Senator Franken:

[A]bove the entrance of the U.S. Supreme Court are four words, and four words only: ‘Equal Justice Under Law.’ When the Roberts Court chooses between corporate America and working Americans, it goes with corporate America almost every time, even when the citizens of this country, sitting in a duly appointed jury, have decided it the other way. That is not right. It is not equal justice under the law.

Senator Leahy:

It is essential that judicial nominees understand that, as judges, they are not members of any administration . . . Courts are not subsidiaries of any political party or interest group, and our judges should not be partisans. That is why . . . the recent decision by five conservative activist Justices in Citizens United to throw out 100 years of legal developments in order to invite massive corporate spending on elections for the first time in 100 years was such a jolt to the system.

Senator Whitehouse:

On the Roberts Court, one pattern is striking, the clear pattern of corporate victories at the Roberts Court. It reaches across many fields—across arbitration, antitrust, employment discrimination, campaign finance, legal pleading standards, and many others. Over and over on this current Supreme Court, the Roberts bloc guiding it has consistently, repeatedly rewritten our law in the favor of corporations versus ordinary Americans.”

Senator Cardin:

Well, this Supreme Court, too many times, by 5-to-4 decisions by the so-called conservative Justices, has been the most activist Court on ruling on the side of corporate America over ordinary Americans.

Senator Dorgan:

What I have seen recently and certainly in the case of Citizens United—and I believe it is the case in Ledbetter v. Goodyear—the Supreme Court too often these days divides into teams. By the way, the team that seems to be winning is the team on the side of the powerful, the team on the side of the big interests, the team on the side of the corporate interests. That ought not be the way the Supreme Court operates.

 

PFAW

New Poll Shows Americans Want Less Corporate Influence in Politics

Last month, we commissioned a poll asking people across the country what they thought of corporate influence in elections and the Supreme Court’s decision in Citizens United to expand that influence. The results were staggering.

A whopping 85% of voters surveyed said they thought corporations already have too much influence in our political system. 95 % agreed that “Corporations spend money on politics mainly to buy influence in government and elect people who are favorable to their financial interests.” 77% supported a constitutional amendment to allow Congress to limit the amount corporations can spend on elections, and 74% said they’d be more likely to vote for a candidate who shared that view.

Yesterday, MoveOn.org released the results [PDF] of a new poll on corporate money in politics, and guess what?

The MoveOn poll found:

  • “79% of voters polled, including 72% of Republicans and 75% of Independents, believe that it’s important that a candidate commit to reducing the influence of corporations over elections”
  • “Almost two out of three voters (60%) disagree with the Supreme Court’s decision in the Citizens United case. Sixty-seven percent of those would be more likely to support a candidate who backs a constitutional amendment to overturn the decision.
  • “Seventy-seven percent of voters overall (including 70% of Republicans Independents), view corporate election spending as an attempt to bribe politicians rather than an expression of free speech that should not be limited.”


No matter how you cut the numbers, the pattern is clear. Americans want voters, not corporate money, to own our democracy.

Speaking of which…have you asked your elected officials and candidates to sign the Pledge to Protect America’s Democracy?
 

PFAW

Citizens United and State Laws

The Citizens United decision didn’t merely overturn nearly a century of federal laws and precedents; it also threw state campaign finance laws into turmoil. Before Citizens United, 24 states restricted corporate spending in elections. After the Supreme Court invalidated the federal laws governing corporate influence in political campaigns, states started scrambling to prepare for their own campaign finance laws to be struck down. And none too soon: as we’ve mentioned before, legal challenges have already started to bring down some of these state-level laws.

On Monday, Wisconsin’s attorney general formally announced that the state’s campaign finance laws would have to be repealed. A local news station reported that lifting these restrictions could lead to an increase in campaign spending from $30 million last year to $90 million this year. It remains to be seen whether Wisconson, like many of the other states affected by the Supreme Court decision, will enact disclosure laws to lessen the impact of corporate money on elections.

The conservative majority on the Roberts court didn’t just invalidate the anti-corruption measures enacted by our democratically elected Congress. It also limited the ability of state governments to decide for themselves how to regulate their own elections. Wisconsin’s election laws are just the latest casualty. To keep track of what’s happening in other states, go here.

PFAW

Julian Bond: In the Kagan Hearings, Echoes of the Past

Last month, Republican senators turned to a surprising strategy in their questioning of Supreme Court nominee (and now Supreme Court Justice) Elena Kagan. They attempted to smear Kagan by connecting her with a figure who most of us don’t see as a liability—the revered civil rights leader Justice Thurgood Marshall. The attacks Senators Charles Grassley, Jon Kyl, and Jeff Sessions levied at Marshall rang a bell for former NAACP member and People For board member Julian Bond. Bond writes in today’s Des Moines Register:

These attacks didn't surprise me because they're completely consistent with a party locked in the past, echoing the anti-civil rights message of those who opposed Justice Marshall's own confirmation in 1967.

Grassley, Sessions and their fellow Republicans roasted Solicitor General Kagan with the same attacks used against Marshall four decades earlier. Then, the late Sen. Sam Ervin of North Carolina complained about the likelihood that Marshall would be "a judicial activist," which he defined as someone "unable to exercise the self-restraint which is inherent in the judicial process when it is properly understood and applied, and who is willing to add to the Constitution things that are not in it and to subtract from the Constitution things which are in it."

When Ervin spoke of adding rights to the Constitution, there was no doubt that he was referring to the court's ruling in Brown v. Board of Education, which he had fervently opposed. Ervin went on to join with 10 other southern Senators in voting against Marshall's confirmation.

Faced with the inevitable backlash for their attacks, today’s senators have tried to equivocate by saying they have no problem with Justice Marshall, just with his “judicial philosophy.” As Bond makes clear, that’s not a new—or convincing--argument.

For a refresher, take a look at the compilation of Marshall attacks Talking Points Memo put together after the first day of the Kagan hearings:
 

PFAW

Target apologizes, but will stay in politics

Why would two companies that received 100% ratings from the Human Rights Campaign's 2010 Corporate Equality Index give a combined $250,000 to a group backing a candidate with extreme anti-gay views? According to Target's CEO, the company was only trying to advance "policies aligned with our business objectives" when it contributed $150,000 to Minnesota Forward, a group whose sole purpose is to support the candidacy of State Rep. Tom Emmer, the Republican nominee for governor of Minnesota.

MN Forward is a creation of the Minnesota Chamber of Commerce and the Minnesota Business Partnership, and its top priority is, of course, lowering the corporate tax rate. In fact, MN Forward is led by Brian McClung, who previously served as "government affairs director for the Twin West Chamber of Commerce" and ran the "group's political-action committee." Benefiting from the Supreme Court's Citizens United decision, the organization already raised $1.1 million, much of it from corporate donors like Hubbard Broadcasting, Red Wing Shoe Co., Federated Insurance and Davisco Foods. Ultimately, MNForward hopes to obtain $2 to $5 million in order to run advertisements across the state promoting Emmer.

It's not a surprise that big business has rallied around Emmer, who repeatedly voted against consumer protection laws, such as "good faith" requirements for insurance companies, and raising the minimum wage. In fact, Emmer was rewarded with a perfect 100% rating from the Chamber of Commerce for his 2010 voting record. But Emmer is not only a consistent defender of corporations in the State House, but is also a leading opponent of gay rights.

He voted against a bill that would permit same-sex domestic partners to have rights over the burial of their deceased partners, and also opposed allowing domestic partners of state employees to collect health insurance. Emmer even voted against legislation that would mandate anti-bullying policies in public schools to protect LGBT youth. When a local Christian rock band's lead singer called the execution of gays "moral," Emmer refused to condemn the band, and instead called them "nice people."

While Emmer declined to denounce the viciously anti-gay rock band he has financially supported, he did take the opportunity to blast critics of corporate influence in elections as enemies of free speech.

In the end, faced with an outcry from shareholders and a boycott from consumers, Target's CEO apologized for the donations. However, the company did not say that it would stop making contributions; instead, it will create a review board to oversee future contributions.

No word yet from BestBuy and other companies who have financially backed MN Forward.

PFAW

The Wrong Lesson To Learn From the Kagan Confirmation

Over at The Atlantic, Max Fisher draws some conclusions from the Kagan confirmation, and I think he’s pulled together a pretty good summation of what folks in Washington are thinking—but that doesn’t mean they’re right.

Fisher argues that since 37 votes were cast against Kagan, and since the GOP could pick up Senate seats in November, Obama will be forced to nominate a “moderate.”

Not so fast.

The fact that 37 Senators voted against Elena Kagan is a sign that Senate Republicans will fight anyone who gets nominated to the high court, no matter how unobjectionable (a fact that’s borne out by their disgraceful treatment of lower court nominees.) If Republicans are willing to attack a Supreme Court nominee endorsed by Jack Goldsmith, Miguel Estrada, Ken Starr and Ted Olson, they’re not going to let anyone off without a food fight.

Will more Republicans mean a bigger fight next time? Maybe, but there’s nothing to be done about it. President Obama should consider himself free to nominate whoever he wants: if we’re going to fight, it might as well be a fight worth having.

PFAW

Celebrating Elena Kagan's Confirmation

I'm just back from a reception at the White House celebrating the confirmation of Elena Kagan to be an Associate Justice of the Supreme Court. The mood was truly upbeat, with everyone thrilled at the reality of three women sitting on the Supreme Court. I got to congratulate soon-to-be Justice Kagan and tell her how truly excellent and inspiring I thought her testimony was.

 

PFAW

The Party of No Lives Up to Its Name

Last night, in the latest episode of their passive-aggressive crusade to keep President Obama’s judicial nominees off the bench, the Senate GOP put on a mind-boggling display of obstruction.

As the Senate confirmed Elena Kagan’s Supreme Court nomination, 21 other judicial nominees were waiting for Senate votes. More than half of these nominees had been approved unanimously by the Judiciary Committee, and all had been waiting more than 100 days for confirmation.

After the Kagan vote, Senate GOP leader Mitch McConnell agreed to hold voice votes on four of the stalled nominees, and promised to agree to a vote on another—Jane Stranch, a Tennessee attorney who has been waiting more than a year for confirmation, despite having the support of both of her home state’s Republican senators-- in September.

The GOP sent five nominees back to the White House—meaning that the President will have to renominate them and start the process again.

That left eleven nominees in Senate limbo. Nine of them had received absolutely no opposition from either party in their Judiciary Committee hearings.

In an interview Monday, the National Journal asked McConnell about his party’s obstructionism. “Is the Senate broken?” the interviewer asked. McConnell answered:

No. Members frequently on both sides hold up a nominee because of some concern they have. It is more likely to be done if you are in the minority because the administration is not of your party and less likely to address your concern. This kind of give-and-take I have seen go on before. It is not any more dramatic now than it has been in the past, and this president has not been treated worse than the last one was. But it is always maddening to the majority and maddening to every president.

I must say the president even made it worse by recessing a guy like [Craig] Becker [to the National Labor Relations Board], who was defeated in the Senate. We had a vote. He was defeated on a bipartisan basis. And recessing a guy like [Donald] Berwick [to oversee Medicare and Medicaid] without any hearings at all and with the chairman of the Finance Committee [Max Baucus, D-Mont.] saying he didn't think he should have been recessed. That is not the kind of action that is designed to, shall I say, engender a cooperative reaction on the part of the minority. I think we can statistically show you that it is not worse for President Obama. He hasn't been singled out more for shoddy treatment than it has been in the past.

It’s unclear what “concern” McConnell is referring to in the case of the nine blocked nominees who have received absolutely no Republican opposition. The concern seems to have nothing to do with the nominees at all—but rather with unrelated executive branch nominations that the GOP is seeking revenge for.

And as for McConnell’s claim that “we can statistically show you that it is not worse for President Obama,” the Center for American Progress has a chart for that:


PFAW

Fiorina’s Supreme Court Extremism in Disguise

Is this the best impression of a political moderate that Carly Fiorina can do?

The California senatorial candidate announced yesterday that if she were currently a member of the Senate she would not vote to confirm Elena Kagan to the Supreme Court. Her reasoning?

The confirmation process revealed that she has many admirable qualities – an ability to solve problems, an energetic mind and an enthusiasm for her colleagues and her work – all of which qualify her to serve as Solicitor General, the Dean of a Law School or even as a legislator. However, the process also underscored her lack of experience as a jurist, which in my mind is a key element in determining whether or not a nominee is qualified to serve as a member of the Supreme Court.

Yes, Fiorina claims that her one and only qualm with Kagan is that the Solicitor General has never been a judge before.

I don’t think we need to remind Fiorina that the lack of judicial experience is hardly unusual for Supreme Court nominees. 41 of the 109 Supreme Court justices in American history came to the high court with no previous judicial experience--including former chief justice and stalwart conservative William Rehnquist.

In fact, since Kagan’s nomination, current and former Supreme Court justices have come out saying you don’t need judicial experience to do the job well. Former justice Sandra Day O’Connor said that Kagan’s professional background was “just fine.” Antonin Scalia, one of the most conservative justices in the past 50 years, was actually enthusiastic about Kagan’s background: “I am happy to see that this latest nominee is not a federal judge - and not a judge at all,” he said.

Which leads to the obvious question: Does Fiorina really think that judicial experience is the only qualification for a Supreme Court justice? If that’s the case, she would she have had to oppose the nominations of some of the most influential justices in Supreme Court history, including Rehnquist, John Marshall, Louis Brandeis, Earl Warren, William O. Douglas, Harlan Fiske Stone, Robert Jackson, Felix Frankfurter, and Joseph Story, among others.

Or is the “inexperienced” argument just a flimsy front for Fiorina’s real right-wing views on judicial appointments?

Fiorina clearly cannot oppose Kagan, a decidedly mainstream nominee with bipartisan support, on ideological grounds without blowing her newly-constructed cover as a political moderate. Instead, she has latched onto a flimsy excuse to oppose Kagan in order to pander to her ultra-conservative base--without setting off the alarms of moderate and progressive voters.

This statement isn’t about Elena Kagan’s resume. It’s about Carly Fiorina’s attempt to appease Sarah Palin conservatives while pretending to be a middle-of-the-road politician. And that should be very scary to moderate California voters.
 

PFAW

Senate Sends Kagan to the Supreme Court

The Senate just confirmed Elena Kagan to be an Associate Justice of the Supreme Court. The vote was 63-37, with five Republicans voting to confirm her, and one Democrat (Ben Nelson of Nebraska) opposing her.

People For’s President, Michael Keegan, said:

“Americans should be proud that Elena Kagan was confirmed to the Supreme Court today. She brings to the bench sterling credentials and a formidable intellect. Her commitment to the Constitution and equal justice under law will serve the Court well in the decades ahead.

“During her hearings, Elena Kagan spoke powerfully about the Constitution as a timeless document, constructed by its framers to be interpreted over time in light of new situations and in new contexts. She articulated 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. Solicitor General Kagan made clear that she has the intellectual fortitude and the command of the law to keep faith with our Constitution--its amendments, its history, and its core values like justice and equality under the law.

“Thanks to today’s vote, the Supreme Court will have three female Justices for the first time in our nation’s history. This is an historic step forward for all Americans, and an advancement of which every citizen should be proud.”
 

PFAW

Hatch: Defense of Thurgood Marshall is “Offensive”

Watching the Senate debate on Elena Kagan’s nomination yesterday afternoon, I wasn’t sure I heard correctly when Sen. Orrin Hatch called the backlash against the GOP’s anti-Thurgood Marshall campaign “offensive.” I heard correctly. Here’s the transcript:

While Ms. Kagan has not herself been a judge, she has singled out for particular praise judges who share this activist judicial philosophy. In a tribute she wrote for her mentor, Justice Thurgood Marshall, for example, she described his belief that the Supreme Court today has a mission to “safeguard the interests of people who had no other champion.” Ms. Kagan did more than simply describe Justice Marshall’s judicial philosophy but wrote: “And however much some recent Justices have sniped at that vision, it remains a thing of glory.”

Justice Marshall was a pioneering leader in the civil rights movement. He blazed trails, he empowered generations, he led crusades. But he was also an activist Supreme Court Justice. He proudly took the activist side in the judicial philosophy debate. Some on the other side have suggested that honestly identifying Justice Marshall’s judicial philosophy for what it is somehow disparages Justice Marshall himself. I assume that this ridiculous and offensive notion is their way of changing the subject because they cannot defend an activist, politicized role for judges.

Among the members of the GOP who continue to cling to this line of attack, variations of the “I’m not disparaging Justice Marshall, I just don’t like his judicial philosophy” argument are a mainstay. The problem is, Justice Marshall’s work as a Supreme Court Justice—or his “judicial philosophy”—is a key part of his legacy. He’s a hero for his years of work rooting out segregation as a lawyer for the NAACP; he’s also a hero for his adherence, as a Supreme Court justice, to the Constitution’s promise of “protecting individual freedoms and human rights.”

When Hatch attacks Marshall’s work as a justice, he attacks his entire legacy. I won’t call that “offensive”—but I can’t say it’s wise, either.
 

PFAW

A true non-partisan

During her confirmation hearing, Elena Kagan promised not to go into any case rooting for one “team” or the other.

But as Senator Dorgan pointed out today, it sometimes seems that the current court is inappropriately divided into “teams” – and the team that is on the side of the nation’s most powerful interests and against everyday Americans is winning.

During his confirmation, Justice Roberts swore that he would be an “impartial umpire” as Chief Justice of the U.S. Supreme Court – but instead, he’s presided over the most ideologically conservative court in decades, one that bends the law to favor the powerful. We need a truly impartial, qualified Justice on the Supreme Court to make sure that the branch of our federal government that is supposed to be apolitical doesn’t continue to turn a blind eye to corporate lawbreaking. That is just the kind of nominee Elena Kagan is.

PFAW

A Justice Who Listens to Ordinary Americans

Senator Mikulski, herself a groundbreaking pioneer for women’s place in politics, re-affirmed Elena Kagan’s qualifications today. The current Court, noted Senator Mikulski, is increasingly out of touch with the majority of the American people. Elena Kagan, meanwhile, has spent her career demonstrating a concern for fairness and equality and the impact of the law on real people.

When the majority of our Supreme Court Justices are so frequently on the side of big corporations regardless of what the law says, we need someone like Kagan who will actually listen to “the little guy or gal.”

PFAW

Cornyn Twists Kagan Remark, Comes Out Against “Judgment”

Sen. John Cornyn, in his boilerplate remarks about the “judicial activism” conservatives like to associate with Elena Kagan, attempted to throw the Solicitor General’s own words back at her. Kagan, Cornyn insisted, would not rely on the “Constitution ratified by the American people and the laws passed by Congress,” but rather that she would solve tensions “between her Constitutional values” using “her prudence and judgment.” (He demonstrated his contempt for “prudence” and “judgment” by spitting the words out in disgust).

This is what Kagan actually said, in a written response to questions from Cornyn:

Question: In Confirmation Messes, Old and New, 62 U. Chi. L. Rev. 919, 932 (1995), you wrote that “many of the votes a Supreme Court Justice casts have little to do with technical legal ability and much to do with conceptions of value.”

a. Please explain in greater detail what you meant in this statement.

Response: I was referring to constitutional values, by which I mean the fundamental principles articulated and embodied in our Constitution. In some cases, constitutional values point in different directions, and judges must exercise prudence and judgment in resolving the tension between them. In doing so, judges must always look to legal sources—the text, structure, and history of the Constitution, as well as the Supreme Court’s precedents—not to their own personal values, political beliefs, or policy views.

Kagan wasn’t talking about tension in her own values—she was talking about the tension inherent in the values of the Constitution. For more on that point, Cornyn might want to read former Justice David Souter’s excellent explanation of this principle, or even just sit down and read a few recent Supreme Court cases, which typically get to the Court precisely because they embody hard-to-resolve tensions between constitutional values.

He might also want to re-watch Kagan’s debunking of the John Roberts doctrine of the judge-as-umpire, in which she patiently explains that “judging requires judgment':

PFAW

Senator Cornyn Still Thinks “Judicial Activism” is a Liberal Phenomenon

Senator Cornyn’s sound bite today: “A judge who presumes to be a lawmaker becomes a lawbreaker.” That is, a Justice who decides based on a desired policy outcome rather than a correct interpretation of the Constitution is a “judicial activist” and has no right to serve on the Supreme Court.

It’s always amazing to hear an ultra conservative like Senator Cornyn complain about judges legislating from the bench. Does he think that the conservative block of the Roberts Court, which overturned a century of settled law in the Citizens United case to achieve their desired pro-corporate policy result, is made up of lawbreakers?

Senator Cornyn also emphasized that, if we disagree with a law or a Supreme Court decision, we have the right to work towards a constitutional amendment. We couldn’t agree with him more. That’s why we’re fighting for a constitutional amendment to correct Citizens United and once again limit corporate money in our elections.

PFAW

Kyl's Hypocrisy on the Kagan Nomination

Senator Jon Kyl just finished speaking against Elena Kagan's confirmation to the Supreme Court, but he seemed a bit confused. According to Kyl, he will vote against her because she believes that the role of the court is to solve society's problems. Kyl said that's the role of the legislature, not the courts.

Yet when our elected representatives HAVE acted to solve society's problems - to protect our elections from being bought by corporations, to protect people from defective medical devices, to protect workers from unfair discrimination by powerful corporations, to protect our environment from polluting corporations - the Roberts Court has gone out of its way to dismantle these protections.

How does Senator Kyl square his support for the arch-conservatives on the Court with his claim that the elected branches should be allowed to solve society's problems?

PFAW

Cardin Supports Kagan - and the American People

In support of Elena Kagan's nomination, Sen. Ben Cardin just did an excellent job of listing a few of the examples of how the Roberts Court has gone out of its way to rule against ordinary Americans and in favor of the powerful corporations who victimize them. In addition to the Citizens United and the Ledbetter cases, he mentioned the Gross case, where a 5-4 majority overruled precedent to limit the ability of victims of age discrimination to have their day in court.

Through their elected representatives in Congress, the American people have frequently acted to protect people from abuses of power - abuses that get people fired from their jobs, that poison the air we breathe and water we drink, and that take our elections away from us. Yet the Roberts Court is dedicated to twisting the law in order to strike down these efforts. Corporations win, people lose.

Take a look at our Foundation's Corporate Court report to read what Sen. Cardin is talking about.

Elena Kagan recognizes the role of the Court is protecting Americans from the abuse of power.

PFAW

Trading Judges

As the Senate prepares to vote this week on the Supreme Court confirmation of Elena Kagan, there is also reportedly a deal in the works to finally confirm dozens of the executive branch and judicial nominees who have been waiting—many of them for months—for votes on the Senate floor.

CQ reports:

After seeing only two nominees confirmed during July, Majority Leader Harry Reid, D-Nev., and Minority Leader Mitch McConnell, R-Ky., are discussing terms for advancing at least some of the 84 nominations awaiting floor votes, aides said Monday. “We have a number of nominations that we’re looking at,” said Reid.

But some of the more controversial nominees are unlikely to be confirmed before the Senate returns in mid-September, if then. That may tempt Obama to use recess appointments to fill those vacancies at least temporarily — unless the White House agrees to pass up the opportunity to make recess appointments in exchange for Senate action on some nominees this week.

It’s about time that the Senate gets around to clearing the nominations backlog. But voting on nominees that were reported months ago without any opposition is no great concession by the Republican minority. It’s time to end the charade and the gamesmanship.

Take for example North Carolina judge Albert Wynn, whose nomination to fill a long-vacant seat on the Fourt Circuit Court of Appeals was approved by the Judiciary Committee in an 18-1 vote six months ago, and has been held up by GOP leadership ever since. David Savage at the Los Angeles Times describes the holdup of Wynn’s nomination as part of a political battle similar to “an old family feud”:

The GOP leader had no objection to Wynn. Instead, he said, he was getting back at Democrats who had blocked President George W. Bush's nominees to the same court. "My perspective on the 4th Circuit covers a little longer period of time," McConnell said.

The Senate's dispute over judicial nominees resembles a family feud that stretches over several generations. Judges are being opposed not because of their records, but because of what happened several years earlier to other nominees. Use of the filibuster rule, which the GOP had insisted was unconstitutional several years ago, has become a routine stalling tactic.

If confirmed, Wynn would fill a North Carolina seat on the 4th Circuit that has been vacant since 1994.

Let’s have a vote on James Wynn. Or let’s have a vote on Jane Stranch of Tennessee, nominated to fill a seat on the Sixth Circuit, who has the support of both of her home state Republican Senators. And let’s have a vote on Goodwin Liu, nominated for a seat on the Ninth Circuit, who has endorsements from across the ideological spectrum, including Clint Bolick and Ken Starr.


The debate over judicial nominations has become not about qualifications or the law, or about the urgent needs of the justice system, but about political game-playing. It’s great that the GOP has finally agreed to confirm some nominees who they never objected to in the first place. Maybe now they can move on to having a substantive debate on those, like Wynn, Stranch, and Liu, against whom they continue to use every passive-aggressive rule of Senate procedure.
 

PFAW