Supreme Court

Kagan Defends Marshall

As we and others have noted, many Republican Senators have adopted the perplexing tactic of attacking Kagan’s strong ties to civil rights giant and Supreme Court Justice Thurgood Marshall. Today, Kagan masterfully defended Justice Marshall’s judicial philosophy against Senator Kyl’s accusations of judicial activism.

Senator Kyl accused Justice Marshall of favoring the disadvantaged over the powerful – a critique that may reveal more about Senator Kyl than Justice Marshall. But as Kagan put it, Justice Marshall’s philosophy wasn’t about unfairly advantaging one group over another – it was about the “Court taking seriously claims that were not taken seriously anywhere else.” I think all of us, with the possible exception of Senator Kyl, can be glad that the Court gave Marshall and his colleagues a fair hearing in Brown v Board.

PFAW

Sessions: Citizens United was just like Brown v. Board!

You do have to feel for the big corporations who were being discriminated against before the Supreme Court decided they could spend unlimited amounts of money in elections, right? Jeff Sessions, for one, is standing up for corporate underdogs who have fallen victim to moral injustice. Talking Points Memo reports:

Last night, elaborating on his criticisms of former Supreme Court Justice Thurgood Marshall, Sessions made the unusual comparison of Citizens United v. FEC to Brown v. Board of Education of Topeka.

"[Marshall] was right on Brown v. Board of Education. It's akin in my view to the Citizen's United case. The court sat down and we went back to first principles--What does the Constitution say? Everybody should be equal protection of the laws," Sessions told me after a Senate vote last night.

"Is it treating people equally to say you can go to this school because of the color of your skin and you can't?" Sessions asked rhetorically. "We've now honestly concluded and fairly concluded that it violates the equal protection clause."

Come again?

Let’s break this down into a few points that I guess we shouldn’t assume are obvious:

  1. Brown v. Board of Education ended the systematic segregation of the American school system. Citizens United v. FEC struck down a law that didn’t let corporations spend as much as they wanted to on electioneering communications.
  2. The GOP has spent a large part of the past two days attacking Justice Marshall for what they call his “activist” judicial philosophy. They define that philosophy as an insufficient reverence for the Constitution as originally written and intended.
  3. Brown v. Board of Ed (which Marshall argued) is a classic example of a case in which the Supreme Court interpreted part of the Constitution—the 14th Amendment—in a way at odds with the original intent of its writers, but in line with evolving social mores and values. Elena Kagan made that very point herself this morning, as did former Justice David Souter a few weeks ago.
  4. Sessions says that the same philosophy led to Brown v. Board and Citizens United, but continues to slam Thurgood Marshall, the architect of the Brown argument, while praising the results of Citizens United.

The confusing logic aside, the main point here is that Sessions just compared limits on corporate spending in elections with systematic racial segregation. This is the top Republican on the Senate Judiciary Committee. And abstract arguments about judicial philosophy aside, that’s just appalling.
 

PFAW

Free Enterprise Fund v. PCAOB: The Pro-Corporation Court Strikes Again

Yesterday, the Supreme Court held that the Public Company Accounting Oversight Board’s mechanism for removing its officers violated the constitution. Formed by the Sarbanes-Oxley Act, in response to the Enron scandal, the PCAOB has been challenged since its inception. Today’s ruling is another signal from the Roberts Court that the rights of corporations are more important than the rights of individuals. The Court ruled that since the PCAOB’s members are appointed by the Securities and Exchange Commission, and not removable by the President except for cause, such an arrangement violated the Constitution’s separation of powers. According to the Wall Street Journal:

Congress had given the five-member board, a not-for-profit corporation, broad regulatory authority over accounting firms that audit publicly traded companies. . . .

Roberts said the structure of the accounting board violated constitutional separation-of-powers principles because it was too difficult for the president to remove board members.

The majority did not invalidate PCAOB completely, finding that the offending provision was severable from the other parts of the statute.  But as Breyer’s dissent points out, the Court’s ruling “threatens to disrupt severely the fair and efficient administration of the laws” because the decision struck down protection for members from removal for political reasons and could be expanded to apply to other government officers. 

This decision – which as noted by Justice Breyer poses a serious threat to the functioning of the government and the board - is just another that can be added to the long list of pro-business decisions made by the Roberts Court. By further complicating the PCAOB, the Supreme Court is tacitly supporting corporations, rather than protecting the public from predatory practices.

 

PFAW

Hatch Misses the Point

Senator Hatch spent most of his allotted questioning time trying to refute what he called “misstatements” by critics of the Supreme Court’s decision in Citizens United. Particularly, he tried to defuse claims that the decision permits foreign corporations to heavily influence the outcome of our elections by getting Kagan to admit that the case itself didn’t involve a foreign corporation.

Kagan readily agreed, since it is a matter of record that the plaintiff in the case was a domestic corporation and not a foreign corporation. But he cut her off when it looked as if she was going to continue. Most likely, he didn’t want to hear that his question missed the point.

The conservative majority in Citizens United held that corporations have the same First Amendment political speech rights as individuals and that they are now allowed to make unlimited independent expenditures from their general corporate accounts. There was no limitation in the decision that would prevent a U.S. company that is a subsidiary of a foreign corporation – or controlled by one – to pour millions of dollars into our elections to further foreign interests.

This very real loophole is why it is imperative for Congress to pass the DISCLOSE bill to prevent what Hatch wrongly dismisses as a misstatement.

PFAW

Who in the World is Thurgood Marshall??

It isn't just Republican senators on the Senate Judiciary Committee who are attacking Thurgood Marshall, the NAACP attorney and American hero whose brilliant long-term litigation strategy led to Brown v. Board of Education, the end of Jim Crow, and eventually to a seat on the Supreme Court. In fact, if they and their compatriots had their way, the next generation might not even know who Thurgood Marshall was. As our affiliate PFAW Foundation has reported, Justice Marshall just barely survived the recent ideological purge of Texas textbooks, despite urgings from Religious Right "advisors" that he be erased from history.

What we're seeing at the Kagan hearings is just part of a larger far right campaign to vilify a man who symbolized the best of America.

PFAW

The Odd Marshall Debate

Solicitor General Kagan started out the day defending her late mentor Justice Thurgood Marshall after yesterday’s GOP attacks. It’s odd that she even had to go there. Dana Milbank’s column in the Post this morning explains it well:

It was, to say the least, a curious strategy to go after Marshall, the iconic civil rights lawyer who successfully argued Brown vs. Board of Education. Did Republicans think it would help their cause to criticize the first African American on the Supreme Court, a revered figure who has been celebrated with an airport, a postage stamp and a Broadway show? The guy is a saint -- literally. Marshall this spring was added to the Episcopal Church's list of "Holy Women and Holy Men," which the Episcopal Diocese of New York says "is akin to being granted sainthood."

With Kagan's confirmation hearings expected to last most of the week, Republicans may still have time to make cases against Nelson Mandela, Mother Teresa and Gandhi.

I had thought Republicans had learned their lesson after their first Marshall-based attacks on Kagan were met with a collective “Huh?
 

UPDATE: Brian Beutler over at Talking Points Memo asked three top Republicans on the Judiciary Committee which Marshall cases they objected to. They couldn't name a single one.

PFAW

Kagan: A Fake John Roberts, A Radical Homosexualist, and a Sign of The End Times

As the questioning in Elena Kagan's confirmation hearing finally gets underway, right-wing groups are busy releasing statements and reports claiming she is everything from a "clear and present danger to the Constitution" to a sign of the end times.

The Judicial Crisis Network's first day write-up is particularly confusing, as they seem convinced that Kagan is trying to "disguise herself as the next John Roberts" 

The Senate Judiciary Committee just concluded the first day of Elena Kagan's hearings to replace Justice Stevens on the Supreme Court. Our summary of Day 1: She may not be a Constitutionalist, but she sure plays one on TV.

As we expected, Kagan followed in Justice Sotomayor's footsteps and disguised herself as the next John Roberts, and Democratic Senators did their best to help her hide from her record of extreme activism on abortion, 2nd Amendment rights, and the scope of government power. According to Kagan, "what the Supreme Court does is to safeguard the rule of law, through a commitment to even-handedness, principle, and restraint." In the immortal words of The Who, "Don't get fooled again."

Seeing as it was John Roberts who "disguised" himself as a umpire who would just call balls and strikes and then, once confirmed, revealed himself to be a blatant judicial activist, that is a pretty ironic criticism for JCN to level.

But at least the JCN's complaints are at least coherent, unlike those of Gordon Klingenschmitt:

Chaplain Klingenschmitt has contracted with a team of investigative journalists including Brian Camenker, Amy Contrada and Peter LaBarbera to investigate and report breaking news about Supreme Court nominee Elena Kagan.

While serving as Dean of Harvard Law School, Kagan's administration demanded and forced Blue-Cross, Blue-Shield to cover sex-change operations as an "equal right" paid benefit, harming gender-confused students, as confirmed in 2006 and 2008 by Harvard Crimson newspaper articles.

Kagan also offered sympathetic ear to lesbian group Lambda's Transgender Task Force demand to force all women to share public bathrooms and locker-rooms with cross-dressing men, which is now part of Harvard's dormitory policy, according to the report.

"This is further proof Elena Kagan cannot be trusted to impartially rule on Obamacare or bathroom bills like ENDA, since she believes sin is a Constitutional right," said Chaplain Klingenschmitt, "but rights come from God, who never grants the right to sin."

Because if anything is going to clarify these confirmation hearings, is a report written by a bunch of militantly anti-gay activists like Klingenschmitt, Camenker, and LaBarbera ... and now that is exactly what we have:

Supreme Court nominee Elena Kagan is committed to the radical campaign pushing acceptance of homosexuality and transgenderism as “civil rights." Her unprecedented activism supporting that view as Dean of Harvard Law School (2003-2009) calls into question her ability to judge fairly and impartially on same-sex “marriage” and other homosexuality- or transgender-related issues that may come before the nation’s highest court.

Kagan’s record while Dean of Harvard Law School (HLS) demonstrates her agreement with the goals of the radical GLBT (gay lesbian bisexual transgender) movement and her solidarity with those activists. Working hand in hand with students to expel military recruiters in protest over the Armed Forces’ ban on homosexuals (a “moral injustice of the first order,” she wrote) is only the most obvious example of Kagan’s passionate dedication to this controversial and immoral agenda.

Kagan’s celebration and active promotion of the radical homosexualist and transgender worldview has profound implications. As a Supreme Court Justice, she could be expected to overturn traditional law and understandings of family, marriage, military order, and even our God-given sex (what transgender radicals call “gender identity or expression”). She is a most dangerous nominee who must be opposed by all who care about religious freedom, the preservation of marriage and traditional values.

There should be grave concern over Kagan’s issues advocacy concerning “sexual orientation.” Even before her nomination to the Court, her enthusiastic and committed pro-homosexuality activism at Harvard (including her recruitment to the faculty of radical “gay” activist scholars like former ACLU lawyer William Rubenstein and elevation of radical out lesbian Professor Janet Halley) was highly significant for the nation. Now, it is imperative that Senators and the U.S. public gain an accurate understanding of the radical, pro-homosexual environment that was Kagan’s home at Harvard – and the GLBT legal agenda that Kagan herself helped foster as Dean.

But that is actually quite reasonable compared to this statement from Tim LaHaye and Craig Parshall claiming that Kagan "presents a danger as old as the book of Genesis" and that her confirmation could be a sign of the End Times:

First, if she becomes a Supreme Court justice, she could be the all-important fifth vote in favor of interpreting our Constitution, not according to the vision of our Founding Fathers, but from an international law standpoint, a concept that would have seemed treasonous to our Founders. Three justices on the Court have already relied on foreign law in their opinions: Justices Kennedy, Breyer and Ginsburg. Recently-installed justice Sotomayor has praised Ruth Bader Ginsberg's penchant for international law, so we can assume she will be a legal globalist as well. Five justices create a majority and with Kagan on board they could begin radically steering us away from view of the Constitution that honors our Judeo-Christian heritage and founding.

Second, if this happens, it will usher America into a new age of global law. With Elena Kagan on the Supreme Court, international legal standards could well be imposed on Americans by the High Court's legal globalists, even without the Senate approving a specific international treaty. In our new novel, Edge of Apocalypse, we show how this trend might create a modern-day legal nightmare for conscientious Christians. We need only to turn to Genesis chapter 11 to see how God opposed the ancient attempt at global unification: the Lord declared the tragic result that would follow if a centralized group of fallen men were to consolidate an unlimited, unrestrained power over the planet.

Keep your eyes on the Supreme Court's view of global law. It could be one of the most telling 'signs of the times.'

Cross-posted from RightWingWatch.org

PFAW

A Break from Umpire Analogies?

Well, this is a nice change. In her first few minutes of testimony, responding to questions from Judiciary Chairman Patrick Leahy, Supreme Court nominee Elena Kagan spoke about the Constitution as an enduring document that can be amended and interpreted in a changing world.

The founders recognized that “circumstances and the world would change,” Kagan said. They wrote about “unreasonable” search and seizure, but didn’t write a manual on what counts as unreasonable. “They didn’t do that because of this wisdom they had, because they knew the world was going to change,” she said.

Kagan outlines two varieties of change in constitutional interpretation: the formal amendment process and changing mores. She used as an example the passage of the 14th amendment in 1868, which established equal protection under the law, and the 1954 decision in Brown v. Board, which interpreted the amendment in a way never imagined in 1868 in order to desegregate American schools.

It’s nice to hear that Kagan won’t be engaging in the flawed “balls and strikes” analogy—we might end up hearing a conversation about what the Supreme Court actually does.

[Required reading: former Justice David Souter’s recent speech on this very subject].
 

PFAW

Kagan and the Anti-Military Myth

Near the end of his questioning, Senator Patrick Leahy addressed the accusation that Elena Kagan is somehow "anti-military."  He points out an op-ed in the Washington Post written by a Harvard Law School grad who demolishes that particular attack.

If Elena Kagan is "anti-military," she certainly didn't show it. She treated the veterans at Harvard like VIPs, and she was a fervent advocate of our veterans association. She was decidedly against "don't ask, don't tell," but that never affected her treatment of those who had served. I am confident she is looking forward to the upcoming confirmation hearings as an opportunity to engage in some intellectual sparring with members of Congress over her Supreme Court nomination. I would respectfully warn them to do their homework, as she has a reputation for annihilating the unprepared.

PFAW

Star of the Kagan Hearings is the Corporate Court

Democratic Senators used the opportunity of Elena Kagan’s Supreme Court confirmation hearings today focus attention on nine people who were not in the room. The Senators called the Roberts Court out for some of its more outrageous decisions as they began to reframe the debate on the role of the Court and the Constitution. Central to the discussion was the Court’s decision in Citizens United v. FEC, in which it overturned a century of settled law to allow corporations to spend unlimited amounts of money to influence elections.

Russ Feingold of Wisconsin, was one of the chief designers of the campaign finance rules that the Supreme Court knocked down in Citizens United. He said:

[W]hen a decision like the one handed down earlier this year by a 5-4 vote in the Citizens United case uproots longstanding precedent and undermines our democratic system, the public’s confidence in the Court can’t help but be shaken. I was very disappointed in that decision, and in the Court for reaching out to change the landscape of election law in a drastic and wholly unnecessary way. By acting in such an extreme and unjustified manner, the Court badly damaged its own integrity. By elevating the rights of corporations over the rights of people, the Court damaged our democracy.

Sheldon Whitehouse of Rhode Island took on the Court’s pro-corporate leanings by brilliantly co-opting Chief Justice Roberts’ famous baseball metaphor:

Only last week, the Rent-A-Center decision concluded that an employee who challenges as unconscionable an arbitration demand must have that challenge decided by the arbitrator. And the Citizens United decision -- yet another 5-4 decision -- created a constitutional right for corporations to spend unlimited money in American elections, opening our democratic system to a massive new threat of corruption and corporate control.
There is an unmistakable pattern. For all the talk of umpires and balls and strikes at the Supreme Court, the strike zone for corporations gets better every day.

Ted Kaufman of Delaware told Kagan, “I plan to spend the bulk of my time asking you about the Court’s business cases, based on my concern about its apparent bias.”

The Court’s decision last fall in the Citizens United case, which several of my colleagues have mentioned, is the latest example of the Court’s pro-corporate bent. The majority opinion in that case should put the nail in the coffin of claims that “judicial activism” is a sin committed by judges of only one political ideology.

What makes the Citizens United decision particularly troubling is that it is at odds with what some of the Court’s most recently confirmed members said during their confirmation hearings. We heard a great deal then about their deep respect for existing precedent. Now, however, that respect seems to vanish whenever it interferes with a desired pro-business outcome.

Al Franken of Minnesota explained the real impact of campaign finance laws:

Now, you’ve heard a lot about this decision already today, but I want to come at it from a slightly different angle.
There is no doubt: the Roberts Court’s disregard for a century of federal law—and decades of the Supreme Court’s own rulings—is wrong. It’s shocking. And it’s torn a gaping hole in our election laws.

So of course I’m worried about how Citizens United is going to change our elections.

But I am more worried about how this decision is going to affect our communities—and our ability to run those communities without a permission slip from big business.

Citizens United isn’t just about election law. It isn’t just about campaign finance.

It’s about seat belts. It’s about clean air and clean water. It’s about energy policy and the rights of workers and investors. It’s about health care. It’s about our ability to pass laws that protect the American people even if it hurts the corporate bottom line.

As Justice Stevens said, it’s about our “need to prevent corporations from undermining self-government.

And finally, Sen. Richard Durbin of Illinois summed up the retort to any GOP Senator complaining about “judicial activism”:

We've heard from those across the aisle about their support for traditionalism, and their opposition to judicial activism. I have two words for them: Citizens United.

We’re looking forward to hearing a lot more about Citizens United and the Corporate Court as the hearings progress
 

PFAW

Republicans Against Thurgood Marshall?

Republican members of the Senate Judiciary Committee tried to smear Elana Kagan all day by attacking her mentor and hero, Thurgood Marshall, as a “liberal activist judge.” Senator Jon Kyl in particular complained that Marshall’s judicial philosophy was “not what [he] would consider mainstream.” Really? Let’s not forget: this was the man who won the breakthrough victory for civil rights in Brown v Board of Education. Justice Marshall spent his quarter century tenure on the Supreme Court protecting the rights of privacy, equal opportunity, and a fair trial. According to Senate Republicans, that record makes Marshall a radical judicial activist.

Can the Republican Senators really be opposed to the legacy of Thurgood Marshall? If so, what in the world could they be for?

PFAW

Better Luck Next Time, Anti-Kagan Activists

Earlier today, Traditional Values Coalition, Concerned Women for America, the Judicial Crisis Network, and Students for Life of America held a joint press conference to announce their opposition to Elena Kagan's confirmation to the Supreme Court.

The only problem was, as the CQ-Roll Call blog Congress.org explained, that the groups held their conference outside the Supreme Court, where reporters were awaiting today's rulings, rather than where the reporters covering it were actually stationed:

Activists against Elena Kagan gathered on Capitol Hill Monday but outside the wrong building.

An hour before the Supreme Court nominee faced questions from senators, the leaders of four conservative groups stood outside the high court in protest.

"We're calling on the senate today," Andrea Lafferty of the Traditional Values Coalition began. "They are going to be accountable for the questions they ask or don't ask."

One problem: The backdrop Lafferty and the others chose was the court, not the Capitol. The court reporters who were around focused on a competing press conference about the morning's court rulings .

Most of the cameras focused on Lafferty's group were those of tourists -- not the press.

"Why are they protesting here?" one passerby asked a friend. "She's not on the court yet. She doesn't work here."

Had the reps from the Judicial Crisis Network, Students for Life, and Concerned Women for America stood outside the Hart Building, they would have had better luck getting attention from reporters actually covering Kagan.

I guess I should also point out that TVC is considered an anti-gay hate group by the Southern Poverty Law Center, so you have to question the judgment of CWA and JCN for partnering with them for this event.

Cross-posted from RightWingWatch.org.

PFAW

Sessions' Dubious Sources

In Sen. Session’s opening remarks at the Kagan hearings, he lambasted her for association with so-called “activist” judges—including revered civil rights defender Thurgood Marshall, the widely respected Abner Mikva, and the Republicans' new, desperate talking point, Israeli judge Arahon Barak.

Sessions’ choice of words was interesting:

She clerked for Judge Mikva and Justice Marshall, each a well-known liberal activist judge. And she has called Israeli Judge Aharon Barak-who has been described as the most activist judge in the world-her hero.

Let’s take a look at who has been describing Judge Barak as the “most activist judge in the world”:

On Wednesday, Judge Robert Bork, whose own Supreme Court nomination in 1987 resulted in a Senate vote against confirmation, said Judge Barak “may be the worst judge on the planet, the most activist,” and argued that Ms. Kagan’s admiration for him is “disqualifying in and of itself.”

Yes, that’s Judge Robert Bork, the ultra-conservative whose Supreme Court nomination was sunk 23 years ago, and has been going to bat against Democratic Supreme Court nominees ever since.

In fact, Barak has done his so-called “activist judging” in a country with no written Constitution, and has received praise from conservative Supreme Court Justice Antonin Scalia.

This isn’t about Barak or about a real threat of “judicial activism”—it’s about Senate Republicans desperately reaching for something to distort.
 

UPDATE: Sen. Jon Kyl is singing the same tune on Barak. Is this really all they have?

PFAW

A Victory For Religious Liberty

In today's 5-4 decision in Christian Legal Society v. Martinez, the Supreme Court correctly ruled that a publicly funded law school need not provide funding and recognition to a campus group with policies that discriminate based on religion and sexual orientation.

The University of California, Hastings College of Law, is a public institution with a viewpoint-neutral policy of recognizing and providing some funding to official student organizations, as long as the groups open their membership to all comers regardless of their status or beliefs. The campus Christian Legal Society (CLS) denies voting membership to those who do not subscribe to its religious beliefs, including those which condemn sex outside of heterosexual marriage. Because the CLS's discrimination on the basis of religion and sexual orientation violates the school's "all comers" policy, Hastings denied them official recognition.

All student groups, the CLS included, are subject to the same rules. But the CLS demanded – and the four arch-conservative Justices would have given them – a special favored status denied to other groups: the right to the funds and benefits of recognition from a public institution, along with an exemption from the rules that apply to any other group seeking those funds and benefits.

People For the American Way Foundation filed an amicus brief with other civil rights organizations in support of Hastings College of Law in the case. The brief emphasized that the Supreme Court has repeatedly upheld the right of the states to withhold public funding that would support discrimination. This is particularly relevant in the context of government-funded "faith-based initiatives," where conservative Christian groups are demanding the right to receive public funds and then use them to discriminate against gays and lesbians.

Had the four-Justice dissent carried the day, grave damage would have been done to the power of government to prohibit public funds from being used to forward invidious discrimination. Today is a victory for religious liberty.

PFAW

Leahy Brings Citizens United to the Forefront in Kagan Hearings

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

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

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

PFAW

Jeff Sessions Gets Started

Senator Sessions pledged that Republicans would hold a respectful confirmation.

In the next breath he slammed Kagan’s legal experience, then moved on to attacking her college thesis, complaining about her support of Ruth Bader Ginsburg, misrepresenting her opposition to DADT (and claiming she was anti-military), and distorting her argument in Citizens United. Just for good measure, he smeared Justice Thurgood Marshall for being too activist, and then demanded that the Supreme Court engage in activism to limit “unprecedented government power” (by which he seems to mean stimulus and health care reform.)

You stay classy, GOP.

PFAW

Off To a Good Start: Liberty Counsel Calls Kagan a Liar Before Hearing Even Began

The confirmation hearing for Elena Kagan is just getting under way and so I am going to start collecting statements and reactions and posting them both on the RightWingWatch and PFAW blogs ... and we are already off to a good start, as Liberty Counsel is liveblogging the event and, before it even began, accused Kagan of being unfit for the Supreme Court because she is a liar: 

There have been many comments in the media that this appointment will not change the dynamic of the court because Justice Souter's opinions were very much on the left side of the political spectrum. Kagan's confirmation would do more than keep a politically left justice on the bench. As apparent in her time at Harvard Law School, Kagan's ability to change the curriculum shows her ability to influence. A person with Kagan's radical ideology and means of influence could be dangerous on the Supreme Court. In addition, ethically Kagan has shown that she is not afraid to lie in a confirmation hearing, which brings into serious question her ability and fitness in the practice of law.

Cross-posted from RightWingWatch.org

PFAW

The Confirmation Hearings Are Coming!

At last, the wait is over: it's time for the Senate Confirmation Hearings for Supreme Court Nominee Elena Kagan.

Here at People For the American Way Headquarters, we're hoping for (and expecting to get) a conversation that addresses the clear pro-corporate tilt of the Roberts Court and its willingness to bend the law to favor powerful interests. We're also hoping that we'll hear some of our 20 Questions for Solicitor General Kagan asked and answered.

While we'd like to believe that the hearings will be all about the law and Solicitor General Kagan's judicial philosophy, we also expect to see a fair amount of preening from conservative Senators trying to score points with their far-right base.

We'll be blogging throughout the hearings, and we hope that you'll stop by from time to time and have a read.  To help beef-up our commentary on the right-wing craziness that's sure to go on around the hearings, Kyle from RightWingWatch.org will be cross posting relevant posts here on the People For Blog.

Finally, you can follow our Twitter feed, @PeopleFor.

Opening statements start today at 12:30, so pull up a chair, turn on C-Span 3, and watch with us for a while.

PFAW

Some More Good Supreme Court Reads

A couple of weeks ago, I wrote a post highlighting some really excellent articles that have come out in response to former Supreme Court Justice David Souter’s recent takedown of the highly flawed (to put it mildly) analogy of the Justice as a sort of robotic constitutional umpire. Since then, the debate as continued, and I wanted to point out a few more that make for great reading going into Elena Kagan’s confirmation hearings next week.

Donald Ayer, who was a deputy solicitor general in the Reagan Administration wrote an op-ed in the Washington Post explaining why the Supreme Court’s work can’t be done by a constitutional calculator:


Here's the rub: In nearly all the high court's cases, doubt exists not because the half or so of judges who decided the issue are stupid, don't get it or otherwise made some identifiable mistake. Rather, doubts exist because there are substantial persuasive arguments on both sides that cannot be dismissed as invalid or wrong. These cases must be resolved by deciding which collection of arguments is the more compelling; the justices make decisions by choosing to give priority to one set of contentions or another.
This is true of many constitutional cases, both because the Constitution is often unspecific and, as retired Justice David Souter recently observed, because its splendid generalities, such as equality and liberty, are sometimes in tension with one another. It is also true in the much greater number of more routine cases, such as where the words of a statute leave doubt about its coverage or effect.


Sonja West in Slate, says Kagan “needs to throw away the script”:

The absence of any dialogue on substantive law at these hearings is regrettable, but the political theater of discussing judging as mere law-to-fact application is truly alarming in that it goes to the heart of the public's understanding of what it is Supreme Court justices actually do. That's why Kagan needs to talk to the American people honestly next week about the job for which she is applying and why she is so qualified to get it.

And, in the New York Times Magazine, Noah Feldman calls for a new progressive vision of the Constitution that deals with macroeconomics just as much as civil rights:

Why does the absence of this vision constitute a crisis for liberals? The answer is that new and pressing constitutional issues and problems loom on the horizon — and they cannot be easily solved or resolved using the now-familiar frameworks of liberty and equality. These problems cluster around the current economic situation, which has revealed the extraordinary power of capital markets and business corporations in shaping the structure and actions of our government. The great economic and political challenges of our present decade — salvaging and fixing financial institutions, delivering health care, protecting the environment — have major constitutional dimensions. They require us to determine the limits of government power and the extent to which the state can impinge on collective and individual freedoms. Progressive constitutional thinkers, so skilled in arguing about social and civil rights, are out of practice in addressing such structural economic questions.

Finally, if you don't feel like reading, watch Al Franken's great speech to the American Constitution Society. "Originalism isn't a pillar of our Constitutional history," he says, "It's a talking point."


 

 

PFAW

Supreme Court Rules for Campaign Disclosure, But Divided Over How Far it Should Go

In a ruling that may bode well for the longevity of the campaign finance disclosure law currently being considered by Congress, the Supreme Court today ruled that the First Amendment does not give people a blanket right to keep their political activity under wraps. But the Justices disagreed on the extent to which the First Amendment allows privacy for controversial political activity.

The case, Doe v. Reed, was brought by a group of people who had signed a petition to put a measure on the ballot in Washington that would have voided the state’s domestic partnership laws. Washington’s law says that the names on such petitions have to be publicly available. The group of plaintiffs argued that the exposure of their names would expose them to harassment, therefore violating their First Amendment rights. The Supreme Court, in an 8-1 decision, disagreed that the disclosure law was unconstitutional on its face, but left the door open for the anti-marriage equality petitioners to claim the law was an unfair burden in their specific case.

The spread of the justices’ opinions on the specific case of Protect Marriage Washington shows their ideological differences on the subject—and could shed light on what will happen if the Court considers something like the DISCLOSE Act.

Tom Goldstein at SCOTUSblog explains:

There were several separate opinions. Justice Alito wrote a separate concurrence that is quite sympathetic to the plaintiffs’ as-applied challenge on remand. Justice Sotomayor wrote a concurring opinion, joined by Justices Stevens and Ginsburg, that is very doubtful about that challenge. Justice Stevens also wrote his own concurring opinion, joined by Justice Breyer, to make the same point, albeit perhaps not as strongly, while Justice Breyer wrote a separate concurring opinion indicating that he doesn’t think that Justice Stevens’ opinion is inconsistent with the Chief Justice’s opinion. Justice Scalia wrote a concurring opinion which takes the position that such a First Amendment claim could never prevail. Justice Thomas was the only dissenter; he would have held that the plaintiffs prevailed on their broad facial challenge to the disclosure provision.

The plaintiffs, having lost their broad facial claim, thus also face significant difficulty in prevailing in their remaining challenge to the disclosure of their identities with respect to this specific referendum. Justices Thomas and Alito are obviously sympathetic to that claim. But five Justices – a majority of the Court – take the opposite view; Justice Scalia rejects it outright and the four more liberal members of the Court express significant doubts about the claim’s viability.

Rachel wrote earlier today about Justice Scalia’s vocal support for transparency laws, and his opinion in Doe v. Reed confirms that he walks his talk. As Goldstein calculates, if a campaign finance disclosure law comes before the Supreme Court, Scalia’s vote could break up the Citizens United majority and shift the Court’s majority toward disclosure and transparency.
 

PFAW