Supreme Court

A New Brand of Umpire

In a compelling new piece at Slate, Doug Kendall of the Constitutional Accountability Center and Jim Ryan of the University of Virginia argue that when Elena Kagan faces the Senate Judiciary Committee she shouldn’t ignore or reject strict Constitutionalism—she should wrest its definition back from the Right wing:

…Kagan should take the opportunity provided by this week-long constitutional seminar to chronicle the arc of our constitutional progress and make it clear that she will faithfully adhere to the whole Constitution, including the amendments passed over the last 220 years. The amendments passed since the founding era have been glossed over a lot lately, at the Tea Parties, in the states, and even at the Supreme Court, where the conservative "originalists" seem to view what was originally drafted by the framing generation as better, and more legitimate law, than the changes made since. This view is absurd and should be forcefully rejected by Kagan. Perhaps she could follow Chief Justice Robert's umpire analogy, in which he famously likened judges to umpires calling balls and strikes. No one would claim that modern umpires have the power to enforce the "original" rules of baseball, even if those rules have been changed. The same is true of justices enforcing the Constitution.

As Rand Paul and the RNC have recently learned the hard way, most Americans accept that our Constitution, like our society, has changed over the past 200 years. Kendall and Ryan are right that progressives shouldn’t downplay the written document—they should brandish it.
 

PFAW

Supreme Court Leaves Publicly Funded Arizona Candidates Up a Creek

The Supreme Court ruled today that Arizona candidates who have opted in to the state’s public financing system can’t collect matching funds—the money allotted to candidates who are up against particularly well-funded opponents or interest groups—until the Court has time to consider whether the matching funds are constitutional.

This leaves candidates who had agreed to public funding (and so hadn’t built up large stocks of cash) in a tough spot coming into August 24th’s primary. The moratorium on matching funds will last until the Supreme Court decides whether to hear the case—a decision that could come as late as the fall.

The AP outlines the impact:

Gubernatorial candidates running with public funding get a basic allotment of $707,000 for the primary and were also eligible for up to $1.4 million — two times the basic allotment — in matching funds. Publicly funded candidates for down-ballot offices get smaller amounts of basic funding and also are eligible for corresponding amounts of matching funds.

Nearly half of the state-office candidates who qualified to run in the primary were running with public funding.

The Supreme Court showed in Citizens United that it was willing to go out of its way to help big money influence elections. Today’s ruling is further evidence of that trend.
 

UPDATE: People For's president, Michael B. Keegan, has issued a statement on the Supreme Court's order, saying, "In this ruling, the Court has shown once again that it is open to letting big money gain big influence in our democracy." The full statement is here.

PFAW

Equal Protection Under Attack: Doe v. Vermilion Parish School Board

Last week, People for the American Way Foundation signed on to an amicus brief urging the Fifth Circuit Court of Appeals to overturn a lower court’s decision allowing a Louisiana middle school to segregate classrooms by sex. The amicus brief, led by the National Women’s Law Center, argued that sex-segregated classrooms are harmful to members of both sexes and violate the Fourteenth Amendment’s Equal Protection Clause.

Parents of the Rene A. Rost Middle School were informed in 2009 that classes for the school would be segregated by sex for the coming fall semester. A parent whose children were placed in sex-segregated classes without receiving constitutionally mandated coeducational options objected and was told that because the coed classes had already been filled, the only option left for one of her daughters was a special needs class. Represented by the ACLU, the parent sued and the trial court dismissed the case by wrongly shifting the burden of proof, requiring the victim to prove discrimination by demonstrating an “intent to harm” - a new standard that is almost impossible to meet and not recognized by the Supreme Court.

As the Supreme Court held in its 1996 decision requiring the Virginia Military Institute to admit women, for a state to permissibly classify on the basis of sex, it “must carry the burden of showing an exceedingly persuasive justification for the classification.” Additionally, the state must not “rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.” Simply put, the Court has found that a state must have a very good reason before it decides to discriminate on the basis of sex.

NWLC’s brief cites evidence that suggests a total lack of adequate justification for the school’s policy, both from a legal and practical perspective, specifically a flawed study performed by Rost Middle School’s principal. Simply put, if the Fifth Circuit were to uphold the District Court’s decision, it would ignore almost 30 years of settled Equal Protection law in order to endorse a discriminatory policy that is harmful to all students regardless of gender.
 

PFAW

New Statement, Old Points from Sessions

Jeff Sessions is at it again. In a statement following the release of tens of thousands of pages of documents related to Supreme Court nominee Elena Kagan on Friday, Sessions concluded:

Kagan’s memos unambiguously express a leftist philosophy and an approach to the law that seems more concerned with achieving a desired social result than fairly following the Constitution. Ms. Kagan has never been a judge, and only briefly practiced law—spending far more time as a liberal advocate than a legal practitioner.

Sessions, the top Republican on the Senate committee that will grill Kagan this summer, has apparently decided to stick to the blanket accusation of “judicial activism”—or, as it is now known, “outcomes-based” judging. The idea that conservative judges read the Constitution while liberal judges pull ideas out of thin air was spectacularly disproved by the Roberts Court’s ruling in Citizens United v. FEC, and recently received a thorough takedown from former Justice David Souter. Yet Sessions continues to peddle nonsense about progressive appointees caring more about a “social result” than the Constitution.

And, by the way, when Sessions accuses Kagan of lacking judicial experience, he walks right into a well-documented double standard.
 

PFAW

Souter’s Case Against Originalism

In his commencement address at Harvard last week, former Supreme Court Justice David Souter offered up an eloquent and thorough debunking of the popular conservative delusion of constitutional “originalism.”

E.J. Dionne sums it up nicely:

At issue is "originalism," an approach to reading the Constitution whose seeming precision has given conservatives a polemical advantage over the liberals' "Living Constitution" idea that appears to let judges say our founding document means whatever they want it to mean.

Justice Antonin Scalia, the court's leading orginalist, summarized his opponents' attitude toward the Constitution with four words: "You know, it morphs."

Now, thanks to Souter's commencement address at Harvard last week, Scalia's critics have fighting words of their own. Souter, who did not mention Scalia by name, underscored "how egregiously it misses the point to think of judges in constitutional cases as just sitting there reading constitutional phrases fairly and looking at reported facts objectively to produce their judgments."

The problem is not only that "constitutions have a lot of general language in them in order to be useful as constitutions," but also that the U.S. Constitution "contains values that may very well exist in tension with each other, not in harmony."

This means that "hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another."

Souter focused on the example of Brown v. Board of Education, the 1954 decision that declared segregated schools unconstitutional. "For those whose exclusive norm of constitutional judging is merely fair reading of language applied to facts objectively viewed,” he said, “Brown must either be flat-out wrong or a very mystifying decision.”

The Supreme Court’s conservative wing has shown itself willing to depart from originalism when it serves their purposes. What’s surprising is that the originalist “balls and strikes” argument is still dominates discussions on the courts.
 

PFAW

Keeping the Courts Corporate

Corporate courts don’t happen by accident.

Carl Pope, chairman of the Sierra Club, has written an account of the efforts of the business lobby and Republican Senators to keep Rhode Island environmental lawyer John McConnell off the federal bench.

McConnell’s offense? Representing the State of Rhode Island in a lawsuit to get a lead paint manufacturer to clean up the damage caused by its toxic product. (A jury awarded the state $2.4 billion in cleanup costs; the Rhode Island Supreme Court threw out the verdict).

Whatever you think of the verdict, McConnell was a lawyer representing a client, the State of Rhode Island. He argued on behalf of his client, which is what lawyers are supposed to do. Litigators are not supposed to behave like judges (until and unless they actually become one).

That distinction was lost on Senators Kyl and Sessions. Sessions actually argued:

"Being passionate and zealous is a good quality for a litigator. But I do think those qualities are somewhat different in the cloistered halls of a courtroom, where you're reading briefs and trying to be objective. Those emotions might again start running, and you might say that 'There's a wrong there that I need to right.'"

The two Republican senators were echoing the arguments of the Chamber of Commerce, which had warned Congress against McConnell:

"His apparent bias against the business community and questionable judicial philosophy raise serious reservations about his fitness to serve a lifetime appointment to the federal bench," said Lisa Rickard, president of the U.S. Chamber's Institute for Legal Reform. "McConnell's elevation to the federal judiciary could create a 'magnet' jurisdiction that would encourage additional meritless, plaintiffs' lawyer-driven lawsuits."

The U.S. Chamber spends more on lobbying Congress than any other organization. It is not a coincidence that it has made itself a powerful—if not always logical— voice in the shaping of federal courts.
 

PFAW

Supreme Court: Suspects Must Speak in Order to Remain Silent

The Supreme Court’s conservative majority ruled today that suspects being interrogated can only invoke their right to be silent if they say so explicitly—they can’t just remain silent. Justice Sonia Sotomayor, in a dissenting opinion, called the ruling a "substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona has long provided.” The Los Angeles Times explains:

In the past, the court has said the "burden rests on the government" to show that a crime suspect has "knowingly and intelligently waived" his rights.

But in a 5-4 decision Tuesday, the court said the suspect had the duty to invoke his rights. If he failed to do so, his later words can be used to convict him, the justices said.

The ruling comes in a case involving a murder suspect who, though read his Miranda rights, never said he would waive them. After three hours of interrogation, he offered a few monosyllabic responses that implicated him in the crime. The Supreme Court’s majority, in an opinion by Justice Anthony Kennedy, went beyond the case in question to hold that suspects, rather than having to explicitly agree to be interrogated, have to explicitly invoke their Miranda rights in order to halt questioning.

Sotomayor pointed out that requiring a suspect to speak in order to remain silent doesn’t really make sense:

Justice Sonia Sotomayor, the court's newest member, wrote a strongly worded dissent for the court's liberals, saying the majority's decision "turns Miranda upside down."

"Criminal suspects must now unambiguously invoke their right to remain silent — which counterintuitively, requires them to speak," she said. "At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded."

She also criticized the majority for going beyond the decision necessary for the specific case in order to make new and broader rules:

If, in the Court’s view, the Michigan court did not unreasonably apply our Miranda precedents in denying Thompkins relief, it should simply say so and reverse the Sixth Circuit’s judgment on that ground. “It is a fundamental rule of judicial restraint . . . that this Court will not reach constitutional questions in advance of the necessity of deciding them.” Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U. S. 138, 157 (1984).

Two disturbing habits of the Roberts Court are on display here: the tendency to ignore the common-sense practicalities faced by the person with the least power in a given situation; and the zeal for going beyond the narrow bounds of a given case and carving out a whole new set of rules not necessary to the resolution of the case before them.

It’s a perfect example of how the Roberts majority, while displaying remarkable ambivalence to the practical implications of its rulings, isn’t just calling “balls and strikes”—it’s going to bat for its own unprecedented agenda.
 

PFAW

And the waiting room gets a little more crowded…

Today’s nominations obstruction update:

With the Senate facing a full legislative calendar and a Supreme Court debate ahead, the outlook for the more than 100 names on the executive calendar appears grim for the rest of the year.

As we have pointed out before, the Senate GOP’s zeal for holding up the president’s nominees not normal.
 

PFAW

Oil and the Courts: Will History Repeat Itself?

As BP begins a risky attempt to stem its still-leaking oil rig in the Gulf of Mexico, and oil starts to lap against the shores of the Gulf Coast, lawsuits against the oil giant have begun. The devastating oil spill has already surpassed the size of the 1989 Exxon Valdez disaster, and the litigation that follows it is sure to be just as contentious and lengthy. Two years ago, 19 years after the Valdez spill, the tens of thousands of victims of the disaster saw their case end up before the Supreme Court…and the Court gave Exxon Mobil a huge handout. While the facts this time are different and the legal issues won’t be exactly the same, if their case ends up before the high court, victims of the BP spill will have a legitimate reason to worry –the Roberts Court has displayed a clear willingness to go out of its way to keep individual citizens from holding big oil accountable.

In 1989, an Exxon oil tanker carrying over a million barrels of crude oil crashed off the coast of Alaska, spilling at least ten million gallons of oil into the Prince William Sound. The spill destroyed wildlife habitats and the livelihoods of fishermen up and down the Northwest coast. Those affected by the spill entered into years of litigation to try to recover from Exxon some of what they had lost. In 1994, a jury awarded the 32,677 plaintiffs in the case $5 billion in punitive damages. An appeals court judge halved the amount to $2.5 billion.

Then, in 2008, the Supreme Court gave Exxon Mobil a $2 billion gift. As our Rise of the Corporate Court report explains:

[E]ven this pared-down judgment was way too much for Justices Roberts, Kennedy, Thomas, Souter and Scalia. In 2008, this bloc reduced the punitive damage award from $2.5 billion to $507.5 million. Indeed, the only thing that stopped them from deleting the award altogether was that they were one vote short of being able to find that a corporation is not responsible for the reckless acts of its own managers acting in the scope of their employment.

What the 5-justice majority found, over the objections of dissenting liberal justices who accused them of legislating from the bench, was that it would impose in maritime tort cases a 1-1 ratio between compensatory and punitive damages—a formula found nowhere in the statute and essentially pulled out of a hat made by a big corporation. In dissent, Justice Stevens chastised the majority for interpreting the "congressional choice not to limit the availability of punitive damages under maritime law" as "an invitation to make policy judgments on the basis of evidence in the public domain that Congress is better able to evaluate than is this Court."

But Exxon, which amazingly ended up making money on the spill because of the resulting increase in oil prices, got its way with a corporate-leaning Court and ended up paying punitive damages equal to a day or two of company profits.

The Exxon Valdez spill was the largest oil spill ever in U.S. waters. Until now, that is.

As oil keeps leaking from a BP oil rig into the Gulf of Mexico, the Gulf Coast has started to feel the impact of what the White House yesterday declared to be the worst oil spill in U.S. history.

President Obama called the spill a "potentially unprecedented environmental disaster." 11 people died in the rig’s explosion, and the resulting spill has already begun to destroy Gulf Coast ecosystems and has started a devastating ripple effect through the economy.

An early estimate put the economic impact of the spill at $12.5 billion. And the damage could continue for decades.

Not surprisingly, the lawsuits from those who are losing their livelihoods have begun. As of May 21, more than 130 had been filed.

Lawsuits against BP will no doubt involve millions, and probably billions of dollars in both compensatory and punitive damages. While compensatory damages are essential to helping victims recover from a disaster of this size, punitive damages serve to dissuade the company and others like it from acting recklessly in the future. The Roberts Court’s willingness to invent a rule capping punitive damages against Exxon doesn’t bode well for anyone hoping to hold BP accountable for this disaster and to make sure it doesn’t happen again.

The Court has a responsibility to ensure that ordinary people get treated fairly, even when pitted against big corporations—but the current Supreme Court has made it clear that we can’t always count on that.

This disaster is a tragic reminder of why we need Justices who won’t favor the interests of the powerful over the rights of ordinary citizens.

 UPDATE (May 28, 2:30 PM):

For a sense of the scale of the disaster, take a look at NASA's stunning time-lapse video of the spill unfolding (via Mother Jones):

PFAW

Supreme Court Changes Course to Rule for Workers Over Technicalities

Good news from the Supreme Court this morning: after taking a beating for its 2007 decision denying Lilly Ledbetter the right to sue her former employer for years of wage discrimination based on a deadline she could not have observed, and for a series of stunning pro-corporate rulings, the Court today handed down two decisions restoring justice to workers who had been denied relief based on technicalities.

In Lewis v. City of Chicago, the Court ruled that 6,000 African American applicants for firefighting jobs in Chicago could sue the city for discrimination, even though the city argued they had filed their complaints too long after the discrimination had taken place (whether or not the discrimination happened was not in question):

In a 9-0 decision, the justices said the city was liable for paying damages to those applicants who had "qualified" scores on the test but were excluded in favor of those who scored higher. Earlier this year, a lawyer for black applicants estimated the total damages in the case could reach $100 million.

The question was whether the city’s discrimination had taken place when it had compiled a discriminatory hiring list (in which case the plaintiffs had missed the filing deadline), or each time it made a hiring decision based on that list (in which case they had sued the city in time). The court ruled the latter.

And in Hardt v. Reliance Standard Life Insurance Co., the Court ruled unanimously that an employee who had prevailed in her suit for benefits under the Employee Retirement Income Security Act (ERISA) could gather attorneys’ fees, even though she had not prevailed through a judicial decision. (Her employer had backed down and agreed to pay her compensation before the case was decided by a court).

About 10,000 ERISA lawsuits are filed each year.

President Obama’s nominee for the Supreme Court, Solicitor General Elena Kagan, filed amicus briefs on behalf of the plaintiffs in both cases.
 

PFAW

Appeals Court Rules Against Bagram Detainees

Today, the DC Circuit Court of Appeals ruled against three detainees held by the U.S. on a military base in Bagram, Afghanistan, holding that the federal courts do not have jurisdiction to review their habeas petitions. People For the American Way Foundation filed an amicus brief in support of the detainees’ position that the federal courts do have such jurisdiction.

 In apparent concern about opening the door to habeas cases from detainees held on U.S. military bases all over the world, the three-judge panel distinguished the United States’ control and sovereignty over the Bagram military base from the de facto sovereignty over Guantanamo Bay - a determinative factor in the Supreme Court’s decision in Rasul v. Bush (2004) which held that Guantanamo detainees could seek habeas relief in U.S. courts. The panel pointed out that the U.S. has exercised its leasehold interest in Guantanamo Bay for over 100 years, while its leasehold interest in Bagram is only a few years old.

More interestingly, the court also accepted the government’s “practical obstacles” arguments on appeal that allowing these cases to proceed in our federal courts would overly burden a military that is engaged in active hostilities in Afghanistan. PFAW Foundation wrote about this very issue, urging the court to take notice of the orderly and unobtrusive manner in which the Guantanamo habeas cases have been disposed since the Supreme Court’s decision in Boumediene in 2008. Those cases are particularly instructive given that 30 of the 38 detainees whose cases were brought before the D.C. district courts by the time of filing were found to have insufficient evidence to support their detentions, belying the notion that those detained as enemy combatants are the worst of the worst. In fact, many are not and worse still, some may even be innocent.

PFAW

Bork by Any Other Name

In the two days since Republican Senate nominee Rand Paul restated his long-held opposition to the portions of 1964’s Civil Rights Act that prohibited racial discrimination by private businesses, members of his party have been keeping their distance and tripping over themselves in the rush to declare their allegiance to the landmark civil rights law.

But, as the Washington Post’s Ruth Marcus points out, there was a time not long ago when Republican Senators were faced with someone with views very similar to Paul’s–and, instead of distancing themselves from him, tried to put him on the Supreme Court.

Rand Paul and Robert Bork, Marcus writes, “are ideological soul mates.”
For those whose perspective on the rejected Bork nomination is that it was such a skewed pummeling that it led to the creation of a new verb -- Borking -- here’s a reminder. Writing in The New Republic in 1963 about the proposed civil rights act, Bork inveighed against a principle of "unsurpassed ugliness” -- not of racism, mind you, but of the notion of compelling private property owners to stop discriminating. Sound familiar? The next year, Bork lit into the proposed bans on discrimination in both employment and public accommodations, saying they would “compel association where it is not desired,” and citing “serious constitutional problems” with the measure.


Bork renounced those views publicly in 1973, during his nomination for solicitor general. Paul’s about-face took less than 24 hours.


It might seem unfair to bring up a 23-year-old nomination battle in the debate over today’s policies, but some in the Republican Party have done just that, using Bork’s Senate defeat as a recurring Supreme Court talking point.

Just last week, for instance, Senate Minority Leader Mitch McConnell (who voted to confirm Bork in 1987) used the Bork-as-martyr defense to excuse all GOP attacks on Elena Kagan.

This week, McConnell weighed in on the Paul brouhaha, issuing a statement extolling the “landmark achievement” of the Civil Rights Act.

If Republicans want to keep on bringing up the Bork nomination, they should spend some time remembering why Bork met with such an unfriendly reception.

For a reminder, check out People For’s 1987 TV Ad on Bork, narrated by Gregory Peck:


 

PFAW

Advice for Obama from FDR

Jeff Shesol, author of the fascinating Supreme Power: Franklin Roosevelt vs. The Supreme Court, has some advice for President Obama in a new blog post for the American Constitution Society. Shesol argues that Obama can learn a thing or two from Roosevelt’s struggles with an “activist” Supreme Court that was overturning key legislative initiatives to protect individual rights and his success in shifting the frame of the public’s debate on the Court and the Constitution.

It's a paradox: we've got a former constitutional law professor as president, but he's had far less to say than his critics (and some of his supporters) about the relevance of the Constitution to key questions of national policy. No doubt he's got plenty to say on the subject. No doubt he's unwilling to cede the argument to Republicans mouthing pieties about "the plain language of the Constitution." So what's holding the professor back?

Understandably, his focus now is the confirmation of Elena Kagan, and that goal might not be served by starting a debate with the self-styled defenders of the Constitution. But as Senator Cornyn said last year, not incorrectly, "each Supreme Court nomination is a time for national conversation and reflection on the role of the Supreme Court." And by keeping mostly mum on the matter, President Obama is missing an important opportunity to "take the country to school," as Felix Frankfurter advised President Roosevelt to do in the mid-1930s. Frankfurter urged FDR to launch a campaign of "quiet education" about the Court's proper role and the ways in which ideologically driven conservative justices were overstepping it.

As Shesol points out, for decades conservatives have dominated the debate over the meaning of the Supreme Court and the Constitution. But in recent months, their talking points have been noticeably loosing credibility. The Roberts Court’s far-reaching decision in Citizens United—in which it went out of its way to upend 100 years of settled law to give corporations the same rights as citizens to influence elections— angered Americans across the political spectrum, and soundly debunked the myth of “judicial activism” as a liberal trait. And the Republican National Committee’s recent attempt to smear Elena Kagan for questioning the perfection of the original Constitution spectacularly backfired when the flaws in their argument became clear.

Americans are clearly ready to embrace a view of the Supreme Court and the Constitution that does not fit neatly into flawed baseball-themed talking points. The debate over Kagan’s nomination provides an opportunity to have that conversation.
 

PFAW

Coalition Urges Holder to Reconsider Moves to Weaken Miranda Rights

A coalition of 35 progressive organizations, including People For the American Way, sent a letter to Attorney General Eric Holder this morning urging him to reconsider his stance on weakening Miranda rights. Holder has said the Obama Administration is open to expanding the “public safety exception,” which allows officers in exceptional circumstances to question suspects before reading them their rights. The coalition, led by the National Association of Criminal Defense Lawyers, argues, “Weakening Miranda would undercut our fundamental Fifth Amendment rights for no perceptible gain.”

As you know, the Supreme Court crafted the "public safety exception" to Miranda more than 25 years ago in New York v. Quarles. This exception permits law enforcement to temporarily interrogate suspected terrorists without advising them of their Miranda rights – including the right to remain silent and the right to an attorney – when "reasonably prompted by a concern for public safety." It allows federal agents to ask the questions necessary to protect themselves and the public from imminent threats before issuing a Miranda warning. Provided the interrogation is non-coercive, any statements obtained from a suspect during this time may be admissible at trial.

Law enforcement used the Quarles “public safety exception” to question Umar Farouk Abdulmutallab, the so-called “underwear bomber,” and Faisal Shahzad, the alleged “Times Square bomber.” Both suspects reportedly provided interrogators with valuable intelligence during that time and continued to do so even after being advised of their rights. As you observed during your May 9, 2010, appearance on “Meet the Press,” “the giving of Miranda warnings has not stopped these terror suspects from talking to us. They have continued to talk even though we have given them a Miranda warning.”

In the nearly nine years since the attacks of 9/11, the Department of Justice has obtained convictions in more than 400 international terrorism or terrorism-related cases without weakening Miranda or risking the safety of Americans. The “public safety exception” is exception enough. Should the need arise to conduct an un-Mirandized interrogation unrelated to any immediate threat to public safety, law enforcement is free to do so under the Constitution. Miranda imposes no restriction on the use of unadvised statements for the purpose of identifying or stopping terrorist activity. The Fifth Amendment only requires that such statements be inadmissible for the purposes of criminal prosecution. Yet even this requirement has exceptions. Un-Mirandized statements obtained outside the public safety exception may still be used for impeachment, and physical evidence discovered as a result of such statements may also be admissible.

Read the full letter here.

 
PFAW

Big Money in State Elections

The PFAW Foundation’s Young Elected Officials Network is gathering this week in Washington, in part to discuss how to work on national progressive issues on the state and local levels.

A panel this afternoon discussed local activism to fix the Supreme Court’s decision to grant corporation’s huge power to influence elections—and the outsized impact that corporate money can have on state- and local-level campaigns with small budgets.

Jeffrey Clements, and attorney who helped found the advocacy group Free Speech for the People, brought up the case of Montana, whose nearly hundred-year-old ban on corporate campaign contributions and expenditures is being challenged in court in the wake of Citizens United. In 2008, the average winning state senate candidate in the state spent just $17,000. An infusion of corporate cash into the state's elections would have a dramatic impact, Clements argued.

Massachusetts State Senator Jamie Eldridge, a member of the YEO Network, came to the issue with an interesting perspective—he is the only “Clean Elections” candidate to have ever won office in Massachusetts (he first ran for a seat in the state House of Representatives one year in which Massachusetts had a Clean Elections public financing program).

“When I first ran, I was entirely publicly financed,” he said, “I didn’t have to raise money and could go door-to-door talking to voters about what they cared about.”

State elections with unlimited contributions from corporations and individuals aren’t uncharted territory—six states currently have no contribution limits at all—but it will be interesting to see how campaigns in states like Montana change if the rules that candidates have been playing by for decades disappear.
 

PFAW

Party Line Vote on Goodwin Liu in Committee

In a vote that surprised absolutely no one, Republicans on the Senate Judiciary Committee voted unanimously against the confirmation of Goodwin Liu, President Obama’s nominee for a seat on the Ninth Circuit Court of appeals. Nevertheless, he passed out of committee by a vote of 12 to 7.

Since even Liu’s critics concede that he’s brilliant, the GOP decided to attack him as “outside the mainstream” and for lacking judicial experience.

By now it’s well established that the Senate GOP will attack anyone as outside the mainstream, so that attack merits little more than a hearty yawn.

But lacking judicial experience? That’s relatively new for Senate Republicans. They sure didn’t mention it when they were voting for 24 courts of appeals judges nominated by President George W. Bush without any judicial experience, or when they were praising former Chief Justice of the Supreme Court William Rehnquist who went to the high court without ever having been a judge. And maybe they didn’t notice that the American Bar Association declared Liu “well qualified,” its highest possible endorsement.

Then again, Senate Republicans have never been shy about applying a double standard when it comes to judicial nominations.
 

PFAW

At a Crossroads

This past Sunday as I was waiting to go on Fox News to talk about the importance of the upcoming debate about the kind of Supreme Court Americans wanted, I had an extra few minutes to walk around the Capitol Hill area near the studio. As I was thinking about one of my key points – that we need a Justice who will keep faith with a Constitution that has been amended by generations of Americans to make sure that “We the people” means “all the people” -  across my blackberry, came word that Attorney General Holder had just said on one of the morning news shows that he wanted Congress to consider modifying the Miranda rule to permit the government to interrogate citizens and legal aliens suspected of being involved in terrorism without advising them of their constitutional right to a lawyer and of their constitutional right not to incriminate themselves. 

Now, I understand that these are troubled and scary times and that Americans understandably fear for their own safety as well as that of their loved ones. The attempted bombing in Times Square certainly was a wake up call.  But, my gut told me that this was a bridge too far – that if we surrender the core constitutional values that make us and our democracy unique in the world, we are left with very little. As hard as it is sometimes, we really do need to make sure that “all the people” and not just some are protected by the Constitution.  

And, as I was pondering this critical crossroads that we find ourselves at as a nation – I came upon the most eloquent reminder of how crucial it is to keep faith with these core constitutional values. It was the small park, near the corner of North Capitol Street and Louisiana Ave that houses the National Japanese American Memorial to Patriotism during World War II. The memorial was created as a tribute to brave Japanese Americans who fought for this country – and for our democracy – during World War II, despite that fact that their families and loved ones had been stripped of their homes and their belongings and were being kept in internment camps because of (what legislation passed by Congress and signed by Ronald Reagan in 1988 called) “race prejudice, war hysteria, and a failure of political leadership.”  The shame of that moment in our history – capped by the Supreme Court’s infamous decision in Korematsu v. United States – should serve as a potent reminder to us of how important it is to keep faith with our core values and who we are as Americans. 

My humble advice – let’s step back, take a deep breath, and think long and hard before we take steps that we will regret in the future.

PFAW

Kagan v. Rehnquist

In their uphill battle to paint Solicitor General Elena Kagan as unqualified for the Supreme Court, some Republicans are complaining that she doesn’t have any experience on the federal bench. It’s an attack that doesn’t hold water for several reasons. But nothing illustrates the double standard more than comparing her resume with that of William Rehnquist, who had strong GOP backing but much less experience.

KAGAN:
1986-87: Clerk for Judge Abner Mikva, U.S. Court of Appeals, D.C. Circuit
1987-88: Clerk for Justice Thurgood Marshall, U.S. Supreme Court
1989-91: Associate in Private Practice, Williams & Connolly
1991-97: Assistant Professor and Professor, University of Chicago Law School (1991-94 as assistant professor)
1995-96: Associate White House Counsel
1997-99: Deputy Assistant to the President, Domestic Policy Council
1999-01: Visiting Professor, Harvard Law School
2001-03: Professor, Harvard Law School
2003-09: Dean of Harvard Law School
2009-10: Solicitor General of the United States

REHNQUIST:
1952-1953: Clerk For Justice Robert Jackson
1953-1969: Private Practice in Phoenix, AZ
1969-1971: Assistant USAG, Office of Legal Counsel

PFAW

Candidates Begin to Appeal to Voters’ Disappointment with Corporate Court

Republicans say they’re plotting to use any Supreme Court nomination battle to their advantage in November.

But polls show that the issue cuts strongly the other way—the American public is overwhelmingly concerned about the current Court’s pro-corporate sympathies and its failure to fully appreciate how the law affects individual Americans.

Within hours of President Obama’s announcement that he would nominate Solicitor General Elena Kagan to the Supreme Court, Illinois Senate candidate Alexi Giannoulias seized on that message in an email to supporters. Here’s a screenshot:

Giannoulias isn’t the first candidate to appeal to the public’s discomfort with the Court’s pro-corporate bent. Last month, now-Rep. Ted Deutch decisively won a special election in Florida, after running on a platform that included a Constitutional Amendment to reverse Citizens United v. FEC.

Citizens United, Ledbetter, and Exxon v. Baker have brought home the impact that the Court’s corporate leanings can have on all Americans. We’re expecting to see a lot more office-seekers raising these issues as November approaches.

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GOP Strategy Call: Obstruct Supreme Court Nomination to Delay Policy Debates

The day Justice John Paul Stevens announced his retirement, Senate Republican leadership vowed to obstruct the confirmation of whoever was nominated to replace him. Today, Republican Senators who had previously praised nominee Elena Kagan’s intellect and qualifications have become strikingly less supportive.

And now we have evidence that the obstruction of Obama’s Supreme Court pick, as a way of delaying progress on policy initiatives like climate change regulation and immigration reform, has been the GOP’s explicit strategy all along.

Talking Points Memo’s Brian Beutler obtained a recording of an April 22 RNC strategy call led by right-wing activist Curt Levey:

The crux of the GOP's strategy is to use Obama's nominee to wedge vulnerable Democratic senators away from the party, and drag the confirmation fight out until the August congressional recess, to eat up precious time Democrats need to round out their agenda.

"[I]t wouldn't take much GOP resistance to push a final vote into early August," Levey advised. "And, look, the closer we could get it to the election, frankly, the better. It would be great if we could push it past the August recess because that forces the red and purple state Democrats to have to go home and face their constituents."

Levey acknowledged that a filibuster likely won't last--that Obama's nominee, now known to be Solicitor General Elana Kagan, will almost certainly be confirmed. But he hammered home the point to Republicans that there's value in mischaracterizing any nominee, and dragging the fight out as long as possible, whether or not Obama's choice is particularly liberal.

This is frustrating, but not surprising, from a party that has recently displayed an unparalleled mastery of the Senate’s rules for delay. If they’re willing to stall the confirmation of one of their own party’s most prominent spokespeople, why would they not draw out the confirmation process for an obviously qualified Supreme Court nominee?
 

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