Supreme Court

Sotomayor Hearings to Begin July 13th

Senator Patrick Leahy (D-VT) announced today that Supreme Court nominee Sonia Sotomayor will begin her confirmation hearings on July 13th. People for the American Way President Michael B. Keegan released the following statement on the announcement:

"Today's announcement is a clear sign that Judge Sonia Sotomayor is on track to be confirmed to the Supreme Court.

Judge Sotomayor is an eminently qualified nominee, and the misguided efforts by some prominent Republicans and their right-wing allies to smear her have failed.

In recent years Supreme Court nominees have traditionally had hearings within two months of being nominated. Today's announcement is consistent with the timeline for nominees of both parties." 

Make sure to sign our petition today, calling on the Senate to confirm Judge Sotomayor to the court.

PFAW

Wendy Long May Have More in Common with Sotomayor Than She Thought

If you’ve been following the nomination of Sonia Sotomayor to the Supreme Court, the term “reverse-racist” has undoubtedly appeared in a story you’ve read. Rush Limbaugh branded Sotomayor a ‘reverse-racist’ on his radio show, while Newt Gingrich labeled her a racist when he posted a statement on his Twitter account.

Some right wing groups claim that Sotomayor is a judicial activist who will bend the law based on her own personal views.

Wendy Long of The Judicial Confirmation Network, a conservative-leaning organization involved with judicial nominations, sent a letter to Senators yesterday outlining these concerns:

“Judge Sotomayor challenges the belief that the law needs to be knowable and predictable . . .” 

Long accused Sotomayor of embracing judicial activism, and claims that “when judges drive such change, based not on the written Constitution and laws enacted by the people, judges use their own sense of personal "justice," based on their own experiences, personal views, feelings, and backgrounds.”

Sadly, the facts get in the way of Long’s argument. Take, for instance, Sotomayor’s ruling in the case of Pappas v. Giuliani. In short, the case involved Thomas Pappas, an employee of the New York City Police Department, who was fired for mailing racially offensive, anonymous letters to organizations that had solicited him for donations.

A reverse-racist, judicial activist, such as Sotomayor, must have ruled in favor of the city, claiming that Thomas violated the rights of others through his offensive remarks, right?

Wrong. It turns out that Judge Sotomayor did exactly what Wendy Long would have wanted―she made her ruling based “on the written Constitution and laws enacted by the people.” Citing the NYCLU’s briefing on the case, Sotomayor and her Second Circuit panel concluded that: 

“The reduced free-speech protections accorded to public-employee speech related to the workplace also extended to private and anonymous speech by employees that took place away from the workplace and that was unrelated to the workplace” 

 Rather than let her personal beliefs get in the way of her ruling, Sotomayor upheld one of America's oldest laws by defending a bigot’s right to be a bigot.

PFAW

Confirm Sonia Sotomayor

You may have heard that President Obama nominated Judge Sonia Sotomayor to fill the Supreme Court vacancy left by the retirement of David Souter.

Sotomayor is a superb choice, and we're working with our allies to help introduce her to the country. 

And don't forget to sign our petition calling on the Senate to confirm Judge Sotomayor to the Court!

PFAW

Empathy as the Enemy

Taking a cue from Karl Rove’s playbook, the Right is trying to transform one of the key strengths of a top-quality jurist – empathy – into a serious flaw. For example, earlier today, Michael Steele told an audience that "the President is looking to put Doctor Phil on the Court."

Last Friday’s Washington Post reported on the Right’s strategy:

An early line of attack emerged last week when Obama told reporters that his eventual nominee would have, among other characteristics, a "quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes."

Wendy Long, chief counsel of the Judicial Confirmation Network, a small Manassas-based group that has been active in conservative judicial battles, immediately pounced on the remark. "What he means is he wants empathy for one side, and what's wrong with that is it is being partial instead of being impartial," said Long, a former clerk to Justice Clarence Thomas. "A judge is supposed to have empathy for no one but simply to follow the law."

A judge who is willfully blind to impact of the law on real people would be a throwback to the type of jurisprudence that once kept women from becoming lawyers, that kept blacks and whites in separate schools, that kept Japanese Americans in detention camps, and that kept gay men in constant fear of arrest and imprisonment.

Just take a look at Plessey v. Ferguson, the 1896 case that upheld racial segregation. The Court deliberately ignored the real-world effect of segregation:

We consider the underlying fallacy of the plaintiff's argument [that state-mandated segregation violates the Constitution] to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

African Americans living under Jim Crow would have to wait more than a half century before Justices with empathy would reconsider the issue.

Empathy is not a strike against a judge: No jurist committed to our core constitutional values can be without it. And that’s the type of jurist we need on the Court.

PFAW

Proposition 8: Open Season on Minorities?

We’re all waiting to see how the California Supreme Court rules on the constitutionality of Proposition 8. Equality advocates argue that stripping lesbian and gay people of the right to marry was what California law calls a revision: a constitutional change so fundamental that it should not have been allowed on the ballot without first being approved by a constitutional convention or a legislative supermajority.

In contrast, Proposition 8’s far right supporters claim it was a constitutional amendment: a non-fundamental change that properly went directly to the voters. Supporters of Prop 8 have also loudly condemned equality advocates for going to court after the election, saying that such a move is illegitimate because the people have already spoken.

The Right is wrong on both counts.

PFAW

Don’t Believe the Right’s Propaganda on the Supreme Court

With everyone talking about the retirement of Justice David Souter, the Radical Right’s propaganda machine is set to max.

Right Wing Watch is reporting on the Right’s reaction.  One of the more laughable claims comes from Wendy Long of the Judicial Confirmation Network:

The current Supreme Court is a liberal, judicial activist court.  Obama could make it even more of a far-left judicial activist court, for a long time to come …

Calling the current Court liberal is like calling Mitt Romney consistent – you can’t say it with a straight face.  In fact, no less an authority than Justice John Paul Stevens has pointed out that “every judge who’s been appointed to the court since Lewis Powell has been more conservative than his or her predecessor,” with the possible exception of Justice Ginsburg.

But, for the sake of argument, let’s review some of the highlights of the current “liberal” Supreme Court.

In order to achieve their desired ideological results, the Far Right justices have recklessly toppled precedents, or even ignored them while pretending not to, with alarming frequency.  For example, the restrictive federal abortion ban upheld by the Roberts Court was essentially identical to one the Court had struck down before Roberts and Alito joined the bench.  Unfortunately, extreme Right Wing ideology trumped the rule of law.

Voting rights have also come under attack.  The Roberts Court upheld the constitutionality of the most restrictive voter ID law in the country, an Indiana law requiring people to present a currently valid, government-issued photo ID in order to vote.  This imposes a substantial burden on the elderly who don’t drive, college students, and the poor who don’t own cars.  Indiana was unable to identify a single case of in-person voter fraud occurring in its history.  That didn’t stop the Roberts Court from upholding a restriction that kept many Americans from being able to go to the polls on Election Day and cast a vote.

Even our very access to the courts has come under attack from the “liberal” Supreme Court.

Lilly Ledbetter was a victim of sex discrimination effectively barred from the courthouse.  Late in her career, she learned that she had, over the years, been subjected to salary discrimination on the basis of her sex, and she sued.  A jury found that she had been illegally discriminated against.  Yet a 5-4 Right Wing majority held that she should have sued within 180 days of the initial discriminatory conduct—even though she didn’t learn that she was being discriminated against for more than a decade.

The Court also closed the courthouse door in Riegel v. Medtronic, holding that patients injured by a defective medical device cannot sue for damages for violations of state common law if it was approved for marketing by the Food and Drug Administration and made to the agency’s specifications.  To reach this result, the Court had to interpret a federal law in a manner directly contrary to how its Senate sponsor said it was intended.

Keith Bowles was yet another victim denied his day in court.  After Bowles was denied relief in federal district court, the judge informed him that he had 17 days to file an appeal.  Unbeknownst to him, the rules really gave him only 14 days.  So when Bowles, relying on the federal judge, filed on day 16, a narrow 5-4 Supreme Court majority said that he had filed too late.  In so doing, the Court majority overruled clear and principled precedent that protected people in his situation.  In dissent, Justice Souter correctly wrote that “it is intolerable for the judicial system to treat people this way, and there is not even a technical justification for this bait and switch.”

The danger from right-wing justices was clear in Boumediene v. Bush, a case related to the then-President’s claim of virtually unlimited executive powers to conduct the war on terror.  The case involved the constitutionality of the Military Commissions Act of 2006, which eliminated federal court jurisdiction over habeas corpus claims by certain foreign detainees.  The Court rebuked President Bush’s vision of the presidency as an office of limitless power and declared that the president of a free nation cannot simply lock people up and throw away the key like some third-world dictator.  Chillingly, with Chief Justice Roberts and Justices Alito, Scalia, and Thomas dissenting, the case was decided by a single vote, 5-4.  One more hard-right justice on the Court, and the decision would likely have gone the other way.

That’s why it’s crucial to have justices who are committed to our core constitutional values of justice and equality under the law.

It is of the utmost importance that Justice Souter be replaced by a powerful advocate for our Constitution—a justice in the mold of great jurists like Thurgood Marshall and William Brennan.  Our nation cannot afford anything less.

PFAW

Justice Souter to Retire at the End of the Term

Ending months of speculation, several news outlets reported last night Supreme Court Justice David Souter is planning to retire at the end of the term, after 19 years on the bench. People For the American Way released a statement expressing gratitude Justice Souter’s years of service to the Court, and called on President Obama to nominate “someone who can continue his work to defend our personal freedoms and ensure that every person has equal access to justice.”

On the campaign trail, then-Sen. Obama, a former constitutional law professor, told Wolf Blitzer of CNN “I I think that my first criteria is to make sure that these are people who are capable and competent, and that they are interpreting the law. And, 95 percent of the time, the law is so clear, that it's just a matter of applying the law. I'm not somebody who believes in a bunch of judicial lawmaking.” An excerpt from the transcript:

What you're looking for is somebody who is going to apply the law where it's clear. Now, there's going to be those 5 percent of cases or 1 percent of cases where the law isn't clear. And the judge then has to bring in his or her own perspectives, his ethics, his or her moral bearings. …

That's been its historic role. That was its role in Brown vs. Board of Education. I think a judge who is unsympathetic to the fact that, in some cases, we have got to make sure that civil rights are protected, that we have got to make sure that civil liberties are protected, because, oftentimes, there's pressures that are placed on politicians to want to set civil liberties aside, especially at a time when we have had terrorist attacks, making sure that we maintain our separation of powers, so that we don't have a president who is taking over more and more power.

I think those are all criteria by which I would judge whether or not this is a good appointee.

Well put, Mr. President. November’s election results were a mandate to President Obama to appoint judges committed to justice, equality, and opportunity for all Americans.

Soon after the election, People For the American Way Foundation hosted a panel called “Beyond the Sigh of Relief: Justices in the Mold of Marshall and Brennan.” It’s newly relevant, so take a look.
 

PFAW

NAMUDNO In the Supreme Court

This morning the Supreme Court heard oral argument in the case of Northwest Austin Municipal Utility District Number One v. Eric Holder, a case involving a small municipal district in Austin, Texas seeking to invalidate a key provision of the Voting Rights Act of 1965 - one of the most important civil rights laws in American history.

With the passage of the Voting Rights Act, Congress finally acted to prevent discriminatory tactics designed to prevent minorities from exercising their fundamental right to vote. Section 5, in particular, is the centerpiece of the Act, and requires certain covered jurisdictions where voting discrimination has been the most flagrant to seek a preclearance from the Justice Department or a three-judge panel of the federal court in DC for any voting related changes. According to the statute, preclearance will be given as long as the proposed change does not have the purpose or the effect of denying or infringing on the right to vote because of one’s race or color.

In this case, the party seeking to invalidate Section 5 is a municipal utility district in Travis County, Texas, that conducts elections to select the members of its board of directors. Because the State of Texas is a covered jurisdiction, the district is subject to the preclearance requirements of Section 5, and sought relief under the Act’s bailout provision in federal court in the days following the reauthorization of the Act in 2006. Alternatively, the utility district sought to invalidate the provision if it could not bailout from its requirements. It failed on both counts in the courts below.

Today’s arguments confirm that Justice Kennedy again holds the deciding vote on whether the Court will weaken or invalidate a provision upheld by the very same Court four times in the past.

To those who argue that Section 5 is no longer needed because racial discrimination no longer exists, as evidenced by the election of the country’s first African American president, look at the facts. Because of Section 5’s sunset provisions, Congress was required to re-examine whether the statute is needed and last conducted an examination of this type in 2006. The House and Senate Judiciary Committees held a combined 21 hearings over 10 months and received testimony from over 90 witnesses, including state and federal officials, experts and private citizens. And although they concluded that significant progress had been made, they recognized that “[d]iscrimination today is more subtle than the visible methods used in 1965” and concluded that discrimination continues to result in “a diminishing of the minority community’s ability to fully participate in the electoral process and to elect their preferred candidates of choice.” Congress voted 390-33 in the House and 98-0 in the Senate that, among other things, Section 5 was still necessary.

We hope that Justice Kennedy will remember the extensive record finding Congress performed in 2006 and remember his words earlier this year when he wrote in Bartlett v. Strickland, “Still, racial discrimination and racially polarized voting are not ancient history. Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions. . .”


Deborah Liu is General Counsel to People For the American Way, which is a defendant-intervenor in the case.

PFAW

Victory for the Rule of Law

Great news on the accountability front: Today, a unanimous three-judge panel of the Ninth Circuit Court of Appeals gave the thumbs-down to the blanket invocation of the pernicious "state secrets" doctrine.

According to the San Francisco Chronicle:

A federal appeals court rebuffed the Obama administration's assertion of secrecy today and reinstated a lawsuit by five men who say a Bay Area subsidiary of Boeing Co. helped the CIA fly them to foreign countries to be tortured.

A lawyer from President Obama's Justice Department argued to the court in February that the issues surrounding the "extraordinary rendition" program, including government-sanctioned interrogation methods and the company's alleged connection to the CIA, were so sensitive that the very existence of the suit threatened national security.

The Bush administration had taken the same position and persuaded a federal judge in San Jose to dismiss the suit.

In today's ruling, however, the Ninth U.S. Circuit Court of Appeals in San Francisco said the government and the company could take steps to protect national secrets as the case proceeded. The suit should be dismissed only if secret information is essential for the plaintiffs to prove their case or for the Bay Area company to defend itself, the court said.

"According to the government's theory, the judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law," Judge Michael Hawkins said in the 3-0 ruling.

Citing last year’s Boumediene Supreme Court case, the court writes that

while security depends upon a sophisticated intelligence apparatus, it subsists, too, in fidelity to freedom’s first principles [including] freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. [internal quotations omitted]

So now the lawsuit against the Boeing subsidiary can proceed. Perhaps it will see some light shed on the Bush Administration's frightening "extraordinary renditions" program.

In a nation governed by the rule of law, we cannot allow the government to shield its illegal actions from judicial scrutiny simply by claiming -- with no supporting evidence required -- that allowing a lawsuit will threaten national security. This "state secrets" doctrine was one of the many ways the Bush Administration evaded responsibility for its own lawbreaking, slammed the courthouse doors on victims of injustice, and arrogated extra-constitutional power to the president. Sadly, in the Ninth Circuit case, the Obama Justice Department took the same approach to this as did Bush's.

Those who knowingly sent people abroad to be tortured by foreign governments, just like those who ordered and enabled torture American style, must face the consequences. Otherwise, America will have become a far different nation than the one that I have always loved.

PFAW

More Good News from Iowa

While national Religious Right leaders have reacted with predictably apocalyptic venom to the unanimous Iowa Supreme Court ruling upholding marriage equality, there's more good news from the state's political leaders. According to the national Stonewall Democrats, the Iowa Democratic Party has long been on record supporting marriage equality, with a position clearly and unequivocally written in the state party platform.

And while state Religious Right leaders are demanding that the legislature begin the process of amending the state constitution, legislative leaders instead praised the Supreme Court's decision. Iowa Senate Majority Leader Mike Gronstal and Iowa House Speaker Pat Murphy issued a strong statement. Here's an excerpt:

Thanks to today's decision, Iowa continues to be a leader in guaranteeing all of our citizens' equal rights.

The court has ruled today that when two Iowans promise to share their lives together, state law will respect that commitment, regardless of whether the couple is gay or straight.

When all is said and done, we believe the only lasting question about today's events will be why it took us so long. It is a tough question to answer because treating everyone fairly is really a matter of Iowa common sense and Iowa common decency.

Marriage equality is a done deal in the state for now. Even if legislative leaders were eager to amend the state constitution, it's a long and complicated process that requires action by both houses in two consecutive general assemblies to put an amendment before the voters. According to the Des Moines Register, Iowa Family Policy Center President Chuck Hurley "acknowledged that until a constitutional amendment could be placed on the ballot, there's nothing gay-marriage opponents can do to stop gay couples from marrying in Iowa. The soonest such a vote could take place would be 2012."

Congratulations and thanks, Iowa. Next up: Vermont, where marriage equality has passed both houses with large majorities in spite of a veto threat from the governor. The vote to override is expected to be a close one.

PFAW

Iowa Marriage Decision Recognizes Religious-Civil Distinction

People For the American Way Foundation's recent Right Wing Watch In Focus report documented the deceptive ways that Religious Right leaders blur the distinction between civil and religious marriage in order to convince Americans that marriage equality is a threat to religious liberty. Today's thrilling unanimous Iowa Supreme Court decision that it is unconstitutional to deny marriage to same-sex couples in the state included a powerful and respectful section on the same topic. Here's how it concludes:

In the final analysis, we give respect to the views of all Iowans on the issue of same-sex marriage—religious or otherwise—by giving respect to our constitutional principles. These principles require that the state recognize both opposite-sex and same-sex civil marriage. Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views. A religious denomination can still define marriage as a union between a man and a woman, and a marriage ceremony performed by a minister, priest, rabbi, or other person ordained or designated as a leader of the person’s religious faith does not lose its meaning as a sacrament or other religious institution.

The sanctity of all religious marriages celebrated in the future will have the same meaning as those celebrated in the past. The only difference is civil marriage will now take on a new meaning that reflects a more complete understanding of equal protection of the law. This result is what our constitution requires.

PFAW

If You Care About the Environment . . .

You should also care about the Supreme Court.

In a setback for environmentalists, the Supreme Court ruled on Wednesday that federal regulators may consider costs when deciding whether to order the operators of power plants to install protections for fish.

By 6 to 3, the court overturned a ruling by the United States Court of Appeals for the Second Circuit, in Manhattan, which had ruled that the Clean Water Act barred the Environmental Protection Agency from engaging in the kind of cost-benefit analysis that it had proposed.

The recent narrow-but-good decision in Massachusetts v. EPA shouldn’t fool anyone into thinking that the Supreme Court is a particularly green institution at the moment, and today’s 6-3 decision (Justice Breyer wrote a concurrence) should be a reminder that the “liberal” wing of the Court is far from uniform. There’s a big difference between a good Justice and a great one, especially when it comes to environmental issues.
 

PFAW

More Nonsense from the Right on Hamilton

Late last week several leaders of the Right, including Tony Perkins, Edwin Meese, and Alfred Regnery issued a statement opposing the nomination of David Hamilton (currently the Chief Judge of the Southern District of Indiana) to the Seventh Circuit Court of Appeals.

Among other things the statement recycles the screed working its way through the right wing blogoshpere that treats Hamilton's one-month job as a canvasser for ACORN thirty years ago when he was twenty two as if it constitutes a major portion of his career.  And it repeats the gross mischaracterization of a decision by Hamilton that police shouldn’t be allowed to violate “the privacy and sanctity of family relations” by directing a school social worker to interrogate a nine-year old student to get evidence against her mother.

And, now, for the first time as far as I’m aware, the statement levels charges that Hamilton ruled that prayers to Jesus Christ offered at the beginning of state legislative sessions were impermissible, but that prayers to Allah were not.

Of course, that’s not an accurate reading of Hamilton’s opinion. Rather, he concluded, as the Supreme Court has said, that “any official prayers [must] be inclusive and non-sectarian and not advance one particular religion.” And he found, based on an in-depth analysis of the record, that the official prayers being offered in the Indiana House in fact “repeatedly and consistently” advanced the Christian belief in the divinity of Jesus, and as such, were impermissible. He also said that Muslim prayers that similarly advanced the Muslim faith were also impermissible, but that the one and only instance of a prayer being offered by a Muslim imam “was inclusive and was not identifiable as distinctly Muslim from its content.”

A debate on the merits of judicial nominees is perfectly appropriate. But let’s at least get the facts straight.

PFAW

Justice O’Connor Speaks Out. Kinda.

The New York Times has a short interview of former Supreme Court Justice Sandra Day O'Connor, and it’s interesting to see all the topics she doesn’t want to talk about.

Whom did you vote for in the presidential election?

Come on, is this about my Web site?

She dodges a question about Harriet Miers and declines to call herself a feminist, but one thing O’Connor doesn’t hold back on is her desire to see another woman appointed to the Court.

It was better for me when I was joined at the court by a second woman. When I was there alone, there was too much media focus on the one woman, and the minute we got another woman, that changed.

Makes sense.

Diversity on the Court—in all its many forms—was a big topic at our recent Beyond the Sigh of Relief panel. Take a look if you haven’t already.

PFAW

Obama's First Judicial Nomination: A Good Start

News reports state that David Hamilton, a federal district court judge in Indiana, will be President Obama’s first judicial nominee. He will apparently be nominated to serve on the United States Court of Appeals for the Seventh Circuit.

I am just learning about Judge Hamilton. In 2005, according to the New York Times, "he made news by ruling that the legislature was prohibited from beginning its sessions with overtly Christian prayers. The decision drew widespread criticism in the legislature and across the state."

I can only imagine.

The overwhelming majority of Indianans are Christian. I’d venture to guess that very few of them have ever lived in a society where theirs was a minority religion, and where the government officially promoted a religion that condemned theirs. The experience of their lives is one where they are comfortably in the majority.

As a Jew who grew up in conservative Texas, my experience is different. I know how it felt in elementary school when public school teachers imposed their Christianity upon the classroom. Officially-sanctioned Christianity regularly made it clear that I was an outsider in my own society: I did not belong.

That is but one of the many excellent reasons that the Founders wisely adopted the First Amendment’s prohibition of the establishment of religion by government. But it’s the one that first occurred to me as I read about the Indiana legislative prayer case.

It is important that judges as a group reflect the diversity of America, so the bench is filled with jurists with a wide variety of life experiences, ranging from the top to the bottom of the social ladder. But that does not excuse the individual judge from being able to step outside their own life experience and recognize that what is not a problem for them can be a severe problem for someone whose life has been different. That is an essential quality for a judge. It’s what made the Brown v. Board of Education decision so different from Plessey v. Ferguson, even though both cases were decided by all-white Courts. Similarly, it’s what made 1976’s Craig v. Boren (establishing a higher level of scrutiny for legal sex-based classifications) so different from 1872’s Bradwell v. Illinois (upholding the state’s prohibition against women attorneys), even though both cases were decided by an all-male Court.

Perhaps Judge Hamilton’s ability to step outside his own experiences helped him decide the legislative prayer case. Either way, he clearly was willing to enforce the First Amendment and clear Supreme Court precedent in a case where he knew that he would be condemned by many people in his state. He put the law over ideology. That’s another quality needed in a judge.

This is an encouraging first judicial nomination from President Obama.

PFAW

Do elephants really never forget?

From today's Politico:

McConnell said that Coleman’s team seems to have been laying the groundwork for a federal appeals challenge by citing the 2000 Supreme Court case in Bush v. Gore, which ended the Florida recount. McConnell argued that the equal protection clause of the Constitution ensures that each county should use similar standards in counting its ballots, which the Coleman campaign asserts was not done in Minnesota.

"We all remember Bush v. Gore," McConnell said.

I am not sure Senator McConnell remembers.

It's interesting that McConnell is willing to let an election -- which has already had a recount -- hang in the air for two months. After all, less than a month after the 2000 election, McConnell was already demanding that Al Gore concede to George W. Bush. McConnell's comments to the Lexington Herald-Leader on Nov. 27, 2000:

We've had a count, we've had a recount, we've had a recount of the recount. It's been three weeks since the election and it's time for Gore to be a statesman and give it up.

But do not worry, others have not forgotten, Senator McConnell.

PFAW

Supreme Court Chips Away at Voting Rights Protections

Twenty four hours after thousands celebrated “Bloody Sunday” earlier this week – a voting rights march from Selma to Montgomery where civil rights marchers including Rep. John Lewis (D-GA) were attacked and brutally beaten by Alabama state and local police, but ultimately led to the historic passage of the Voting Rights Act of 1965 – the Supreme Court undermined some of the enforcement mechanisms of the Voting Rights Act.

I was troubled, in particular by this reference in a NY Times article about Richard Pildes, an expert whose views the Justices relied on in Mondays’ decision, who, according to the Times, “said that current events, including the fact that both major political parties are led by African-Americans, had complicated the legal landscape, creating ‘tremendous pressure on a statute that was primarily structured for an earlier era in which blacks were completely excluded from office.’ “

There’s no disputing the fact that much progress has been made, but even today, we’re a far cry from the post-racial world that MLK described in his famous I Have a Dream speech. To it's credit, even the Supreme Court recognized that racial discrimination and racially polarized voting are not ancient history. This issue is not simply about having an African American President or leader in the Republican Party. This is a larger issue of opportunity for all citizens and one federal election has not summarily changed the reality existing in this country still. There’s no African American representing an overwhelmingly white district in the House, and no African American governors representing a Southern state (there’s only been one in history – Douglas Wilder of Virginia).

I recognize that there’s been much progress, but there’s more work to be done and vital protections such as those in the VRA are still necessary.
 

PFAW

Supreme Court Dismisses Al-Marri Case

Today, the Supreme Court dismissed the appeal by Ali al-Marri, who has been in federal custody in South Carolina since January 2002 when Bush designated him as an enemy combatant, claiming that he was an al-Qaeda sleeper agent. The order was in response to the Obama administration’s important move last week in filing criminal charges against al-Marri after 9 long years of detention without review by Bush, a move which transformed al-Marri’s detention to a criminal matter that will be heard in the normal course through the federal courts. He’ll now have the right to a speedy trial, be able to confront his accusers, the right to the effective assistance of counsel – the whole shebang.

The Obama administration’s decision to take this bold step shouldn’t go unnoticed to those of us who have been staring in paralytic shock over the last 8 years during which the Bush administration did whatever it wanted to foreign nationals and citizens alike in its “war against terror”. Bush even deemed as unpatriotic the notion that a federal court could ever review what the president does or why during a time of war – however, unconventional that war may be – thereby delivering a one-two punch to the constitutional principles of freedom of speech and separation of powers. Both of these, by the way, were swiftly decimated by Bush lawyers as revealed in the recently disclosed OLC memos.

In this case, the new administration correctly did what some have been saying all along – if there is evidence of wrongdoing, charge the individual with a crime and allow him to be tried in a civilian criminal court. The government has the tools to prosecute suspected terrorists and has done so in the past. It is clear that our courts can address the real concerns of national security, even during times of war, without reversing decades of due process jurisprudence. 

PFAW

Republican Senators Make Threats on Judges, Try to Force "Bipartisanship" at Gunpoint

From Poltico:

President Barack Obama should fill vacant spots on the federal bench with former President Bush's judicial nominees to help avoid another huge fight over the judiciary, all 41 Senate Republicans said Monday.

...

"Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee," the letter warns. "And we will act to preserve this principle and the rights of our colleagues if it is not."

In other words, Republicans are threatening a filibuster of judges if they're not happy.

The letter talks about "bipartisanship" and, separate from the letter, several Republicans have been warning the president for some time against nominating "far left judges." But for all this talk about "bipartisanship" and throwing terms around like "far-left judges," what do they really mean?

Does bipartisanship mean nominating half right-wing judges who would overturn Roe v. Wade and don't believe in the Constitution's promise of equal rights under the law; half who agree that the Constitution makes certain guarantees in terms of people's rights and liberties and that it gives the government the authority and the responsibility to protect those rights, not undermine them?

Or does it mean that all of the president's judicial nominees must be "moderates," and if so, what is their definition of "moderate?" Is a moderate someone who is respectful of fundamental constitutional rights and principles like privacy, equality, the right to choose and checks and balances… as long as they are pro-corporate? We already have a Supreme Court that is overwhelmingly pro-business, much more so than many precious Courts, including the four supposedly "liberal" Justices.

Of course that's probably not the case (not that the president should feel compelled to nominate judges with a corporate-friendly bent anyway, especially now that we are in the middle of the havoc wreaked by corporate greed and excess, but I digress).

When it comes to this issue, what they really care about is pleasing their base. And when it comes to their base, the ONLY judges who are acceptable are extreme right-wing ideologues. So any actual "moderate," mainstream judges of course will be rejected -- and they will be cast as "far-left."

The Right sees the Judicial Branch in very black and white terms. They have accused the Democrats of having a litmus test on judges when it comes to Roe v. Wade. But that was obviously proven wrong by the fact that both Chief Justice Roberts and Justice Alito were confirmed even though they both, according to many experts, would vote to overturn Roe. No, it's the Right that has strict litmus tests on everything from Roe v. Wade and gay rights to free speech, the separation of church and state and, yes, how "business-friendly" a judge may be. Their base demands it! And Republican Senators -- even the so-called moderates like Snowe, Collins and Specter -- are unified on this one.

The judicial philosophies of the jurists respected by the Right are defined by extremism -- plain and simple. It's one thing for a judge to find legal exception with the way a certain case was decided (even if that decision protects a fundamental right, like Roe v. Wade), but quite another to subscribe to theories and views that fly in the face of mainstream judicial thought like:

  • "Constitution in Exile," which takes an extreme and limited view of the Commerce Clause and basically states that the regulatory policies of the New Deal were unconstitutional... and a huge number of policies and Supreme Court decisions going back nearly a hundred years, including civil rights protections, are unconstitutional as well. (Opinions expressed by Clarence Thomas and Antonin Scalia support "restoring the lost constitution.")
     
  • "Unitary Executive Theory," which has been used to justify insanely expansive views of executive power that defy the most commonsense understanding of our founding principles relating to checks and balances and a limited executive (remember, our founders were breaking from a monarchy - they obviously didn't want to create another one). The Bush administration exploited this theory over and over again its now infamous abuses of executive power.; and
     
  • a blatant disregard for the bedrock judicial principle of stare decisis (which Justice Clarence Thomas is said, even by Justice Scalia, to show).  

This is par for the course for right-wing judges. While those of us on the progressive side are not devoid of ideology, and are proud to have our own ideology when it comes to the Constitution and the law, the Right is by far more ideological and Republicans need to be called out for doing the Far Right's bidding once again.
 
President Obama and the Senate Democrats should challenge these Republican Senators to define their terms more specifically -- to tell them and the country EXACTLY what they mean by "bipartisanship" in this case and what they would consider acceptable or "moderate" nominees.  And the president should reject the GOP's attempt to force bipartisanship at gunpoint, by making threats and trying to use coercion to get him to appease their base on judges.

PFAW

On Fair Courts and Big Coal

Today in the Supreme Court, a case was argued that makes a pretty compelling case for a fair and independent judiciary. Robert Barnes at the Washington Post did a good overview yesterday.

Caperton and his little coal company sued a huge coal company on claims that it unlawfully drove him out of business, and a jury agreed, awarding him $50 million.

That company's chief executive vowed an appeal to the West Virginia Supreme Court -- but first, he spent an unprecedented $3 million to persuade voters to get rid of a justice he didn't like and elect one he did.

Today during arguments the Court was (no surprise) divided. But the real principle may be bigger than simply campaign donations.

The Constitution sets up the judiciary as the branch of government dedicated to ensuring that the rule of law applies equally to all people. When it's broken – or perceived to be broken, -- there's scant reason for citizens to put their full faith in the government. And yet over the last years, President Bush has systematically flooded the courts with jurists who put political ideology over our most basic constitutional principles.

No longer fearing the worst when it comes to judicial appointments is, well, a big sigh of relief, but this case makes very clear how crucial it is that we repair the damage eight years of George Bush has done.

PFAW