Supreme Court

New People For Report Tracks the Rise of the Corporate Court

When the Supreme Court decided this year to open the electoral process to floods of money from corporate interests, it provoked a vehement public backlash. But Citizens United v. FEC was just the tip of the iceberg of a decade of rulings—some high-profile and some less noticed— made by a Court that has been disturbingly deferential to corporate interests. A new People For the American Way Foundation report outlines the rise of the corporate court under Chief Justice Rehnquist and the new life it has taken on in the Roberts court.

Americans across the spectrum have been startled and appalled by the Citizens United decision, which will "open the floodgates for special interests—including foreign companies—to spend without limit in our elections," as President Obama said in his 2010 State of the Union Address. According to a Washington Post nationwide poll, more than 80% of the American people reject the Court's conclusion that a business corporation is a member of the political community entitled to the same free speech rights as citizens.

Yet, the Court's watershed ruling is the logical expression of an activist pro-corporatist jurisprudence that has been bubbling up for many decades on the Court but has gained tremendous momentum over the last generation. Since the Rehnquist Court, there have been at least five justices—and sometimes more—who tilt hard to the right when it comes to a direct showdown between corporate power and the public interest. During the Roberts Court, this trend has continued and intensified. Although there is still some fluidity among the players, it is reasonable to think of a reliable "corporate bloc" as having emerged on the Court.

Take a look at the full report here.
 

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An economic historian debunks the originalist rhetoric of Citizens United

Justin Fox, on his Harvard Business Review blog, has an interesting take on the Supreme Court’s decision in Citizens United v. FEC. He interviews Brian Murphy, a history professor at Baruch College who studies the economics and politics of early America. The original laws of incorporation, Murphy says, were developed to organize civic organizations and municipal governments, and later were applied to economic enterprises, partly as a way to dilute their growing influence. “The intent of these laws is therefore the opposite of what the Court asserted in Citizens United,” he says.

Let me put it this way: the Founders did not confuse Boston's Sons of Liberty with the British East India Company. They could distinguish among different varieties of association — and they understood that corporate personhood was a legal fiction that was limited to a courtroom. It wasn't literal. Corporations could not vote or hold office. They held property, and to enable a shifting group of shareholders to hold that property over time and to sue and be sued in court, they were granted this fictive personhood in a limited legal context.

Early Americans had a far more comprehensive and nuanced understanding of corporations than the Court gives them credit for. They were much more comfortable with retaining pre-Revolutionary city or school charters than with creating new corporations that would concentrate economic and political power in potentially unaccountable institutions. When you read Madison in particular, you see that he wasn't blindly hostile to banks during his fight with Alexander Hamilton over the Bank of the United States. Instead, he's worried about the unchecked power of accumulations of capital that come with creating a class of bankers.

The view of corporations as “persons” was meant for legal convenience and economic risk reduction, Murphy argues, and it was the courts, not lawmakers, who started blurring the distinction between the rights of individuals and corporations.

Given the public’s overwhelmingly negative reaction to Citizens United, it seems that Americans continue to understand the difference between corporations and individuals, their purpose in society, and their rights. Americans haven’t grown out of touch with the fundamental values of the Constitution—the Court has.


 

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Kyl disagrees with 69% of Americans on SCOTUS nominee

In his remarks on the retirement of Justice John Paul Stevens, President Obama alluded to his displeasure (which he hasn’t exactly been keeping secret) with the Supreme Court’s ruling in Citizens United v. FEC. Now the GOP is crying “litmus test”:

Senate Minority Whip Jon Kyl (R-Ariz.) invoked Supreme Court Chief Justice John Roberts’s name in a Senate floor speech Tuesday warning Obama not to nominate someone who would be an automatic vote against corporate interests. He made it clear such a nomination could provoke a GOP filibuster.

“The big corporation might have the right law and facts in a particular case,” said Kyl, who noted that Roberts in his own confirmation hearing said that in a dispute between a “big guy and little guy” he would vote for whoever had the law behind him.

“You don’t go on to the bench [saying], ‘I’m always going to be against the big guy,’ ” said Kyl.

Kyl’s straw man argument not only misconstrues Obama’s words, but shows how out of touch his party has become with the American people. A People For poll in February found that a full 78% of Americans—from across the political spectrum— believe that corporations should be limited in how much they can spend to influence elections, with 70% believing that corporations already have too much influence. And asked whether President Obama should nominate a Supreme Court justice who supports limiting corporate spending in elections, 69% said yes.

And just this week, a candidate running on a platform that included a Constitutional Amendment to overturn Citizens United won a resounding victory in a congressional special election in Florida.

Given that kind of evidence, Senator Kyl might want to rethink his decision to make himself a champion of corporate interests over the rights of ordinary Americans.
 

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Democrats Figure out GOP Strategy on Nominations

In an article in Politico today, titled “Dems: Ignore GOP in court choice,” some Senate Democrats show that they’ve got the GOP strategy on the upcoming Supreme Court nomination figured out already.

“I don’t think you can count on any Republican support — no matter who he nominates,” said Sen. John Rockefeller (D-W.Va.). “Even if he nominates a conservative, it wouldn’t be conservative enough.”

. . .

“I’m afraid we’re going to face that criticism whoever he suggests,” said Senate Majority Whip Dick Durbin (D-Ill.), a Judiciary Committee member.

Since the Senate GOP is willing to force cloture votes even on nominees with unanimous, bipartisan support, I think Rockefeller and Durbin are onto something here. They don’t call the GOP the “Party of No” for nothing.

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Legislative Achievements Will Live or Die in the Courts

President Obama was elected on a promise of change, but in order for any of his legislative accomplishments to remain in place, they will need to survive court challenges.

Health care reform has passed. Major financial regulatory reform could be on the horizon. But these reforms will live or die in the federal courts. We immediately saw litigation from right-wing state attorneys general challenging the constitutionality of the health care bill. Will the fate of that bill and others be decided by George W. Bush-appointed judges? That looks increasingly likely if many of the lower federal court vacancies are not filled in a timely manner. Republican obstruction and threats of filibuster cannot be allowed to deter or delay the confirmation of much-needed judicial nominees.

Barry Friedman has an op-ed in today’s Politico that hammers home this point while providing some relevant examples:

Administrations frequently find their regulatory plans in judicial trouble. The Supreme Court gutted the Carter administration's plans to regulate toxic benzene in the workplace. When the Bush administration's Environmental Protection Agency refused to regulate greenhouse gases, claiming a lack of statutory authority, the justices disagreed. The Reagan administration suffered defeat on air bags, the Clinton administration on tobacco regulation.

Just last week, the D.C. Circuit Court ruled the Federal Communications Commission does not have the authority to require broadband providers to treat all customers equally regardless of the type of lawful content they're sending and receiving -- called "net neutrality."

Read Friedman's full piece here:
http://dyn.politico.com/printstory.cfm?uuid=F8683704-18FE-70B2-A857018EEDBEBF04
 

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Corporate Spending in Judicial Elections Skyrocketing

For those still in doubt about the potential for corporate influence in national elections in the post-Citizens United world, it might be helpful to look at the growing sway of corporate money in state-level judicial elections.

Eliza Newlin Carney at the National Journal found some staggering statistics:

Predictions that the Citizens United v. Federal Election Commission ruling will unleash a torrent of corporate money are wildly overblown, free speech advocates insist. As evidence, they argue that corporate money has yet to flood elections in the 26 states that already impose no limit on corporate spending.

But a closer look at state-level elections suggests that independent political expenditures by corporations, unions and other special interests are substantial. This is particularly true in judicial elections, which have gotten dramatically costlier, nastier and more controversial over the past decade. The Citizens United ruling may impact judicial races even more drastically than federal elections, some experts argue.

Campaign spending in state Supreme Court elections for the 2008 cycle topped $45 million, continuing a trend that started in the early 1990s, according to Justice at Stake, a nonprofit promoting judicial impartiality. Judicial campaign fundraising totaled $206.4 million between 2000 and 2009, according to a forthcoming Justice at Stake report, more than double the $83.3 million raised between 1990 and 1999.

Corporate money dominated those expenditures, according to Justice at Stake spokesman Charles Hall, who said some 30 percent of the $206.4 million had "clear links" to the corporate sector. Other big judicial campaign money sources were lawyers and lobbyists, who accounted for about 28 percent of the $206 million-plus total.

The Supreme Court itself highlighted the dangers of this trend in last year’s decision banning a West Virginia Supreme Court justice from participating in a case involving a man who had spent $3 million helping him get elected. The funder in question was Massey Energy Company owner Don Blakenship—who has recently earned criticism as an example of what can happen when corporations have more regulatory influence than the citizens they employ.

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Sessions revives the empty “judicial activism” argument

Justice Stevens only announced his resignation a few days ago, and already the far right is throwing around the familiar Republican talking point about a potential “activist” Supreme Court nominee:

Several days after Supreme Court Justice John Paul Stevens announced his decision to retire, Republican leaders are already making it clear they'll put up a fight if President Obama nominates a left-leaning judicial activist.

Sen. Jeff Sessions, R-Ala., said if the president wishes to avoid a filibuster, he should choose someone with "mainstream" judicial views as Steven's successor.

"If it's somebody like that, clearly outside of the mainstream, then I think every power should be utilized to protect the Constitution," Sessions, the top Republican on the Senate Judiciary Committee, told NBC's Meet the Press.

Sessions elaborated:

It's when an unelected lifetime-appointed judge, or five of them use their power, unaccountable power, to redefine the meaning of the Constitution to effectuate some policy agenda, some empathy, some ideology that they have, that's what threatens the average American.

The “judicial activism” argument, which we’re sure to be hearing repeatedly in the coming weeks, rings hollow in the wake of this conservative-dominated Court’s decision in Citizens United v. FEC. That decision, which overturned over a century of judicial precedent to hand corporations an outsized amount of influence in the electoral process, is exactly the kind of judicial act that, in Sessions’ words, “threatens the average American.”

And it’s worth noting the multiple studies that have shown that the more conservative justices on the Supreme Court are the ones most likely to vote to strike down laws passed by Congress and decisions by federal regulators.

It’s time for conservatives to either retire the “judicial activism” argument, or start applying it to their own nominees.
 

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“A new breed of judicial activist” on the D.C. Circuit

With public attention now focused on the selection of a new Supreme Court Justice, it might be easy to forget the federal judicial appointments that get a lot less press, but which can also make a whole lot of difference in the lives of ordinary people.

Steven Pearlstein, a business columnist for the Washington Post, wrote a great column this morning—just before the news of Justice Stevens’ retirement broke—about how the U.S. Court of Appeals for the D.C. Circuit has been instrumental in slowing down or stopping altogether important regulations of drug companies, mutual funds, telecommunications providers, and other industries.

There's a lot of talk these days about how Washington has become dysfunctional. While most of the focus has been on Congress, the inability to perform even basic functions also extends to the agencies that are charged with protecting workers, consumers and investors. Unfortunately, it often takes a global financial crisis or a deadly coal mine explosion to remind us of the serious consequences of regulatory failure.

Much of the blame belongs with regulators who have been captured by the industries they are meant to oversee or have been swept up in the general political drift toward deregulation. But, as we were reminded by a case this week involving the Federal Communications Commission, another big culprit is the U.S. Court of Appeals for the District of Columbia Circuit, which over the past decade has intimidated, undermined and demoralized the regulatory apparatus.

Pearlstein singles out conservative judges whose regulatory reluctance has kept the Food and Drug Administration for ensuring the speedy availability of generic drugs, and the Federal Trade Commission from disciplining a tech company monopolist.

These cases, Pearlstein writes, “are the means by which a new breed of judicial activist is quietly undermining the reach and the effectiveness of government.”

The leaders of this new breed were, unsurprisingly, nominated by former Presidents George W. Bush and Ronald Reagan. Yet another reminder that judicial nominations at all levels make up one of any president’s most enduring legacies.
 

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Republicans Already Vowing to Obstruct Supreme Court Nomination

We don’t know who the next Supreme Court nominee will be, but Senate Republicans are already vowing to put up a fight.

Senate minority leader Mitch McConnell issued a statement this morning wishing retiring Justice John Paul Stevens well and warning that whoever is nominated to replace him won’t get off easy:

As we await the President’s nominee to replace Justice Stevens at the end of his term, Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an even-handed reading of the law.

We respect the judicial confirmation process, but shouldn’t Republicans see who they’ll be considering before they promise “sustained and vigorous” opposition? Or are they having so much fun holding up nominations that it doesn’t really matter?
 

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Continuing Stevens’ Legacy

Justice John Paul Stevens’ announcement that he will retire this summer marks the end of an era for the Supreme Court and a crucial opportunity for President Obama and the Senate to shape the Court’s direction.

Stevens—the last survivor of the era before Supreme Court nominations became televised partisan battlegrounds—has been a bulwark against a Court that has been moving aggressively to the right. His adamant dissent to this year’s decision in Citizens United v. FEC, like his dissent in Bush v. Gore, were strong defenses of democracy and indictments of an increasingly politicized Court.

President Obama now has the chance to nominate another Justice who will prioritize the rights of ordinary Americans. People for the American Way President Michael B. Keegan said today:

“His retirement will give President Obama his second opportunity to nominate a jurist for our nation’s Highest Court. I hope he will select someone who will continue Justice Stevens’s tradition of working to ensure that individuals receive the fair treatment that our Constitution guarantees. In recent years, the Court has given extraordinary preference to powerful interests at the expense of ordinary Americans. Justice Stevens was a bulwark against that trend. Our country’s next Justice must play a similar role.”

Let’s hope that Republicans in the U.S. Senate will put aside their habits of obstructionism and support the nomination of a Justice who will continue Stevens’ strong, even-handed legacy.
 

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O’Connor v. Citizens United

In the weeks since the Supreme Court handed down its decision in Citizens United, plenty of people (including, ahem, us) have spoke out against the decision. But one critic of the ruling brings a particularly distinguished resume.

Sandra Day O’Connor, in addition to being a former Associate Justice on the Supreme Court, has emerged as one of the most vocal and persistent critics of the ruling and of the dangerous effects of unlimited money in politics. Despite her conservative credentials, though, her stance shouldn’t come as much of a surprise. After all, she wrote one of the decisions that Chief Justice Roberts and co. so casually tossed aside.

And she hasn’t tried to sugar coat the situation:

In speeches and interviews since the 5-to-4 decision came down on Jan. 21, O'Connor has highlighted the decision's impact on precisely the political arena where its corrupting influence and corrosive effects on public trust could be deepest: the races judges themselves must run to keep their seats on state courts.

O'Connor's barnstorm tour deploring the ruling and defending judicial independence continued last week with an audience of law students, faculty, and judges in her home state of Arizona. Earlier, at Georgetown University Law Center in Washington, she chastised the court majority for signaling "that the problem of campaign contributions in judicial elections might get considerably worse and quite soon."

She’s right, which might be why Americans across the political spectrum agree that the decision needs to be fixed.
 

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Supreme Court Gets Chance to Remove Roadblocks Keeping Disabled Veterans from Benefits

This spring, the Supreme Court will get another chance to show whether it values the rights of individuals to receive fair treatment from the American legal system.



The New York Times reports on a case before the Supreme Court that could allow the justices to roll back the most perverse consequences of their 2008 decision in Bowles v. Russell, which held that there is no excuse for missing certain court filing deadlines—even if you’ve been given the wrong information by a judge.


That decision is now being used to withhold benefits from disabled veterans like David L. Henderson, whose disability was the cause of his inability to meet a court deadline to file his notice of appeal. Henderson has been caught up for nearly a decade in what three federal appeals court judges have called a “Kafkaesque adjudicatory process.”



The Supreme Court will soon consider whether to hear an appeal from David L. Henderson, who was discharged from the military in 1952 after receiving a diagnosis of paranoid schizophrenia. He sought additional government help for his condition in 2001, and he was turned down in 2004.

Mr. Henderson, who served on the front lines in the Korean War, had 120 days to file an appeal, but it took him 135 days. He had a pretty good excuse.

His psychiatrist has said under oath that he is “incapable of rational thought or deliberate decision-making.” As a consequence, the psychiatrist added, “Mr. Henderson has been incapable of understanding and meeting deadlines.”


Bowles, the case that created the precedent for Henderson’s nightmarish treatment, split the Supreme Court 5-4. The court, if it hears Henderson’s case, has the chance with this case to stop the extreme consequences of its earlier decision and show that it is willing to protect the rights of individual Americans.
 

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The First Corporate Ad – An Avalanche Begins with One Flake

The ad below may not look like much, but it’s a sign of much greater – and troubling – things to come. It appears to be the very first political ad purchased with corporate money, all thanks to the Supreme Court’s ruling in Citizens United.

The ad ran in a handful of small Texas newspapers and was purchased by KDR Development Inc., a local real estate firm, to oppose a political enemy of the firm’s president, Larry Durrett.

Durrett, who also runs a chain of fast food franchises, told the Texas Tribune that his “businesses do better under conservative people.” Asked why he used corporate rather than personal money, Durrett said that he took “the money out of the pocket that's got some money in there.”

Apply the same logic to giant corporations, and you can see we have a massive problem on our hands. The Supreme Court gave Exxon the same right to spend a billion dollars as it gave Durrett to spend a few thousand.

Durrett’s modest ad buy is a warning to us all – the avalanche of corporate cash is coming. Click here to join our campaign for government by the people, not corporations.

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LA Times: Corporate Money Pours into Chamber of Commerce to Sway Elections Thanks to Supreme Court

Investigative reporter Tom Hamburger has an excellent article in today's Los Angeles Times on the tens of millions of dollars pouring into the U.S. Chamber of Commerce to defeat candidates who stand in the way of Big Business.

As Hamburger reports, the Chamber spent $144 million last year on advocacy and plans to spend substantially more this year. And those dollars will have more impact than ever thanks to the Supreme Court, which recently ruled 5-4 that giant corporations can directly oppose or support candidates for public office.

The article also explains how companies use the Chamber to do their dirty work while concealing their involvement:

Using trade associations such as the chamber as the vehicle for spending corporate money on politics has an extra appeal: These groups can take large contributions from companies and wealthy individuals in ways that will probably avoid public disclosure requirements.

The chamber has developed that into something of a specialty: Under a system pioneered by Donohue, corporations have contributed money to the chamber, which then produced issue ads targeting individual candidates without revealing the names of the businesses underwriting the ads.

And remember, the U.S. Chamber of Commerce is not the national equivalent of your local community chamber of commerce, as the name might suggest. Instead, it's an extremely conservative advocacy group that does the bidding of a small group of companies that provide most of its funding:

The chamber says it represents 3 million companies that pay dues to the national chamber or a local affiliate, though internal documents suggest the organization's treasury is filled in substantial part by contributions from a couple dozen major corporations most affected by Washington policymakers.

The entire article is definitely worth reading. You can find it here.

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Senators Dodd and Udall call for a constitutional amendment

Yesterday, Senators Christopher Dodd and Tom Udall introduced a constitutional amendment to correct the Supreme Court’s recent ruling in Citizens United v. Federal Election Commission. According to Senator Dodd:

Ultimately, we must cut through the underbrush and go directly to the heart of the problem, and that is why I am proposing this constitutional amendment: because constitutional questions need constitutional answers.

People for the American Way applauds Senators Dodd and Udall, Senator John Kerry, and House members like Donna Edwards, John Conyers, and Leonard Boswell, for pushing constitutional amendments. We believe that this is the only complete remedy for the grave threat posed to our democracy by the Roberts Court and its equation of corporations with individuals – a perversion of the First Amendment.

While legislation is a crucial part of the effort to repair this decision, it should be only a part of our response. Constitutional amendments are warranted in only the most extreme circumstances. This is one of them.

You can join People For the American Way’s call for a constitutional amendment by signing our petition at http://www.pfaw.org/Amend.

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Jeffrey Rosen on John Roberts' Judicial Activism

Despite Chief Justice John Roberts’ claims in 2006 that his goal for the Supreme Court was to converge around narrow, unanimous rulings, The New Republic’s Jeffrey Rosen writes that Citizen’s United v. FEC is, “the kind of divisive and unnecessarily sweeping opinion that Chief Justice John Roberts had once pledged to avoid.”

The Roberts Court is demonstrating the kind of conservative activism seen during the New Deal, which was met with political backlash by then-president Roosevelt. What could Roberts’ failure to deliver on his goal of judicial restraint mean for the Court? According to Rosen:

 “…contested constitutional visions can’t be successfully imposed by 5-4 majorities, and challenging the president and Congress on matters they care intensely about is a dangerous game. We’ve seen well intentioned but unrestrained chief justices overplay their hands in the past--and it always ends badly for the Court.”

Maybe Chief Justice Roberts will take Rosen’s concerns to heart, but this is also a reminder as to why it’s important that we fight to confirm fair minded Justices who will stand up to defend core constitutional values.

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Judging, Judges and Prop 8

Washington Post columnist Ruth Marcus, in a piece titled, “Don’t ask, don’t judge?” gave a rhetorical green light to Religious Right activists who have responded to news that federal judge Vaughn Walker is gay by attacking his ability to rule fairly on the constitutional challenge to Prop. 8, the California ballot initiative that stripped same-sex couples of the right to get married.

Although Marcus concludes in the end that Walker, who was randomly assigned to hear the case, was right not to recuse himself simply because he is gay, she does so after a lot of “squirming” like this:

So when Walker considers claims that the ban on same-sex marriage violates the constitutional guarantees of equal protection and due process of law, it's hard to imagine that his sexuality, if he is gay, does not influence his decision-making -- just as the experience of having gay friends or relatives would affect a straight judge.

In the end, Marcus writes,

In this case, I hope the plaintiffs win and that Walker rules that the same-sex marriage ban violates their constitutional rights. At the same time, I've got to acknowledge: If I were on the side supporting the ban and found it struck down by a supposedly gay judge, I'd have some questions about whether the judicial deck had been stacked from the start.

But why wouldn’t the deck be considered “stacked” against gay people if a straight judge were deciding the case? By concluding her column that way, Marcus gives credence to the offensive notion that is already being promoted by right-wing leaders that a gay judge cannot be expected to rule fairly in a case involving the legal rights of gay Americans.

Here’s Matt Barber, director of cultural affairs with Liberty Counsel, responding to news that Judge Walker is, in Barber’s words, “an active practitioner of the homosexual lifestyle.”

“At worst, Judge Walker’s continued involvement with this case presents a textbook conflict of interest. At best, it objectively illustrates the unseemly appearance of a conflict.

"If Judge Walker somehow divines from thin air that the framers of the U.S. Constitution actually intended that Patrick Henry had a ‘constitutional right’ to marry Henry Patrick, then who among us will be surprised?

“Any decision favoring plaintiffs in this case will be permanently marred and universally viewed as stemming from Judge Walker’s personal biases and alleged lifestyle choices.

"For these reasons, and in the interest of justice, Judge Walker should do the honorable thing and immediately recuse himself.”

Barber tries to make a case that he is taking a principled stand by saying, “This is no different than having an avid gun collector preside over a Second Amendment case,” continued Barber, “or a frequent user of medical marijuana deciding the legality of medical marijuana.”

Really, Matt? You expect us to believe that you would advocate that judges who collect guns should recuse themselves from cases involving the Second Amendment? What about avid hunters, like Justice Antonin Scalia? Should anyone who owns a gun be assumed not to be able to rule fairly on legal issues involving guns?

The Post’s Marcus concluded that asking Judge Walker to recuse himself would “invite too many challenges to judicial fairness -- Jewish judges hearing cases about Christmas displays, or judges who once represented unions or management presiding over labor disputes.”

What about Christian judges presiding over Christmas displays? Can you imagine the outrage from Matt Barber and his Religious Right colleagues if someone were to suggest that Christian judges should be barred from hearing cases involving legal and constitutional questions about separation of church and state?

In a diverse and pluralistic nation, it’s important that the federal bench reflect that diversity. But what’s far more important than an individual judge’s race, religion, ethnicity, or sexual orientation is his or her judicial philosophy and understanding of the Constitution’s text, history, and role in protecting the rights and opportunities of all Americans.

The unspoken offensive presumption at work here is that people who come to the law with a life experience that is considered “normal” – say, straight white male Christian – are inherently unbiased, or that their life experience somehow gives them a singularly correct way of viewing the law. Others are suspect.

This notion was on ugly display during the Sonia Sotomayor hearings, when her recognition that she would bring her life experience as a Latina to the bench was used to pillory her as a white-male-hating racist. What about all those white male senators, and the white male Supreme Court Justices they had voted to confirm? Samuel Alito’s ethnic pride and empathy were considered valid, while Sotomayor’s was radical and threatening.

Ruth Marcus is no Matt Barber. She is in some ways simply acknowledging the reality that there is still a level of emotional prejudice against gay people that will keep some Americans from believing that a gay judge can be fair. But she is far too sympathetic to the purveyors of that prejudice. Her column validates their bigotry and will encourage more of the kind of divisive rhetoric we see from the likes of Barber.

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Ronald Reagan's Court

By any measure, the Supreme Court has moved far to the right in the last few years.  In the Los Angeles Times today, David Savage writes about how the decision in Citizens United shows how far the court has moved on corporate issues.

In the 1970s, Justices William H. Rehnquist and Byron R. White said business corporations were "creatures of the law," capable of amassing wealth but due none of the rights of voters.

By contrast, the court's current majority described a corporation as an "association of citizens" that deserves the same free-speech rights as an individual. Because speech and debate are good for democracy, they said, the public should welcome more corporate-funded campaign ads.

He also makes a cogent observation about the origin of this pro-corporate tilt.

All five justices who made up the majority in last month's case, Citizens United vs. Federal Election Commission, were either appointed by Reagan or worked as young lawyers in the Reagan administration.

A reminder that the Supreme Court is often one of a President's most enduring legacies.

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Voter ID Battles on the Horizon

The fight to protect voting rights celebrated a victory last fall in the Indiana State Court of Appeals. There, the court struck down what has become known as the strictest voter identification law in the country.

But it’s an election year again, and, as Tova Wang points out at TPM, it's not over in the Hoosier state.

An Indiana state court recently struck down the state's voter ID law, the most restrictive ID law in the country, and the Indiana State Supreme Court has just announced it will hear arguments on appeal March 4.

And that's not the only place voter ID laws are cropping up:

At least nine states and a city in Massachusetts (of all places!) are considering bills introduced in January 2010 that make identification requirements for voting more strict and/or require proof of citizenship in order to register to vote. As usual, the debates are partisan. This is particularly true in South Carolina where it is estimated that 178,000 South Carolinians do not have the photo identification they would need to vote under the proposal.

There has yet to be any proof of significant voter fraud, but it seems to be political concerns, not principle, pushing these initiatives forward.

Instead of working to suppress the votes of American citizens, perhaps these legislators could help fix the real problems in the nation’s flawed voter and electoral systems--systems that are integral to our democracy.

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Justice Alito: Words v. Actions [VIDEO]

The media spent much of last week obsessing over Justice Samuel Alito's injudicious show of disapproval during the State of the Union. They went a bit overboard to be sure, but were it not for that, millions of Americans may have missed the Citizens United ruling entirely.

Citizens United, as you probably know, opened up elections to unlimited corporate spending. The 5-4 decision overturned a century of precedent and was made possible by Justice Alito -- President Bush's nominee to replace moderate Sandra Day O'Connor.

Sorely absent from last week's coverage was how far Alito's actions on the bench have departed from his words as a nominee. With that in mind I've pulled some relevant clips from the confirmation hearing.

Alito praised the principle of stare decisis (respect for precedent) throughout his hearing but hasn't let it prevent him back brashly overruling longstanding decisions. Here, in conversaton with Senator Orrin Hatch (R-UT), he argued that the court should take limited actions and use its ability to overrule precedent sparingly:

HATCH: Does that mean that the Supreme Court should perhaps be even more cautious, even more self-restrained, since there is no appeal from any errors that they might make?

ALITO: I think that's a solemn responsibility that they have. When you know that you are the court of last resort, you have to make sure that you get it right. It is not true, in my judgment, that the Supreme Court is free to do anything that it wants. It has to follow the Constitution and it has to follow the laws. Stare decisis, which I was talking about earlier, is an important limitation on what the Supreme Court does. And although the Supreme Court has the power to overrule a prior precedent, it uses that power sparingly, and rightfully so. It should be limited in what it does.

Alito frequently said that his judicial philosophy discourages him from reaching overly broad decisions when a narrower ruling is possible. Yet he and the other conservatives went far out of their way in order to strike down as many restrictions on corporate influence in elections as possible. Here, still speaking to Senator Hatch, Alito praised narrow rulings and noted that court rulings on consitutional grounds often cannot be undone by Congress (indeed, we are coming up against that limitation now with Citizens United):

ALITO: Because a constitutional decision of the Supreme Court has a permanency that a decision on an issue of statutory interpretation doesn't have. So if a case is decided on statutory grounds, there's a possibility of Congress amending the statute to correct the decision if it's perceived that the decision is incorrect or it's producing undesirable results. I think that my philosophy of the way I approached issues is to try to make sure that I get right what I decide. And that counsels in favor of not trying to do too much, not trying to decide questions that are too broad, not trying to decide questions that don't have to be decided, and not going to broader grounds for a decision when a narrower ground is available.

Alito also made a good show of deference to the elected branches of government, arguing that the role of a judge is to interpret the law, not make public policy. He clearly disregarded these remarks to Senator Jeff Sessions (R-AL) when he joined with four other judges to strike down decades of legislation passed by Congress and signed into law by the President:

SESSIONS: But we really want the court to be more modest and to draw back from some of its intervention and policy issues that are causing much angst around the country. You want to comment on that? Otherwise, Mr. Chairman, I would yield my time.

ALITO: Well, Senator, I think your policy views are much more legitimate than the policy views of the judiciary because members of Congress are elected for the purpose of formulating and implementing public policy and members of the judiciary are appointed for the purpose of interpreting and applying the law.

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