Earlier this week, People For the American Way Foundation hosted -- and I moderated -- a panel at the National Press Club to discuss what the election of Barack Obama means for the future of the Supreme Court and what kind of justices we should be fighting for. The event's title, "Beyond the Sigh of Relief," says a lot in itself, and it's fantastic that our conversation could focus on the prospects for a return to justice on the High Court rather than strategizing about how to forestall complete disaster.
I hope to have video of the full discussion to share with you in a week or two. The next day, Maryland State Senator and Constitutional Law Professor Jamin Raskin (who was on the panel) and I were on Pacifica Radio in a very substantive joint interview on the same topic. You can listen to that segment here.
Sen. Raskin is also the director of the Marshall-Brennan Constitutional Literacy Project and shares my passion for civic education -- I've known and worked with him for years, going back to my time at Justice Talking. The other phenomenal panelists were: Julius Chambers, former director of the NAACP Legal Defense Fund and founder of Ferguson Stein Chambers Gresham & Sumter PA; John Payton, President, NAACP Legal Defense and Educational Fund; and one of the finest Court journalists out there, Dahlia Lithwick, Senior Editor of Slate.
Any conversation about the future of the Court needs to start with acknowledging the voter mandate Obama received on Election Day to appoint judges with a strong commitment to constitutional rights and values. Redefining the conventional wisdom that the Supreme Court is an issue that only the Right Wing cares about, this time it was Obama voters who said that the Court was extremely important to them.
Here were a few quick highlights from the rest of the event:
The stimulating conversation left me feeling optimistic about advancing the constitutional principles that have been under attack from right-wing organizations and the Bush administration. After eight years of seeing right-wing ideologues nominated to the federal bench, there is immense opportunity to restore constitutional values. The only thing standing in our way is the Right and the senators who are already gearing up to fight good nominees -- senators like John Kyl (R-AZ), who promised a filibuster of any Court nominee he deemed too liberal... only three days after the election.
People For the American Way will be ready for Sen. Kyl, other right-wing senators and the Right's media echo chamber. Together, we'll make sure President Obama fulfills his mandate to give Americans the Supreme Court justices they deserve.
People For President Kathryn Kolbert joined American University law professor Jamin Raskin on Tuesday to discuss Barack Obama and the Supreme Court on Pacifica's What's at Stake. Among other things, Kolbert and Raskin discussed what progressives should look for in an Obama nominee to the Court.
Click below to listen to the interview:
The Supreme Court just rejected an appeal in a case challenging the validity of President-elect Obama's birth certificate, his citizenship and, in effect, his constitutional eligibility to assume the office of President. The fact that it took more than one split second to reject this preposterous, paranoid, conspiracy theory-based case is a little disturbing. A similar case had been thrown out this fall, but that did not stop Justice Clarence Thomas from circulating the appeal papers to his colleagues for consideration.
Read more here:
When Bill Clinton left the White House, the right wing message machine started pushing they myth that his staff had trashed the place on the way out.
President Bush seems to be doing something similar, but instead of pulling the W’s (or O’s?) off the keyboards, he’s trashing the Constitution.
Among the many midnight regulations that Bush has put in place, is this one which denies thousands of federal employees collective bargaining rights. These kinds of regulations are usually lumped in the anti-worker category, but the Supreme Court has made clear that the right to free association is implicit in the First Amendment. And what's a union if not a peaceable assembly of workers exercising their right to free speech? In the case of federal employees, they're even assembling to petition the government. A triple whammy!
So, yes, you should be angry that Bush took a shot at the labor movement on the way out the door, but he also found one more opportunity to thumb his nose at the Bill of Rights.
A Washington Post article today points out that even not counting the two yet-undecided Senate contests in MN and GA, the Democrats could have the filibuster-proof 60 votes to move several key pieces of legislation by picking up a few Republicans. The article highlights several possible bills - two of which are civil rights bills of particular interest to People For the American Way.
First up: DC Voting Rights. The right of voters to be fully represented in Congress is paramount to the health of our democracy. Shamefully, the institutional disenfranchisement of Americans is probably most egregious in our nation’s capital, where 600,000 taxpayers have a congressional representative with no voting power.
Voting rights in Congress for the District of Columbia is another example. Legislation to expand the House of Representatives from 435 to 437 seats by giving the District and Utah an additional vote each were three votes shy of the 60 needed to end a filibuster in September 2007. Eight Republicans voted with the Democratic majority, which is 51 to 49 and includes two independents.
In addition, the Lilly Ledbetter Fair Pay Act - for which People For the American Way was far out front in leading the fight - could have the support it needs to correct a terrible Supreme Court decision (a decision supported by both of President Bush's right-wing Supreme Court nominees, Chief Justice Roberts and Justice Alito).
In April, 50 Democrats and six Republicans supported legislation that would have amended the 1964 Civil Rights Act by allowing more time for workers to file discrimination complaints. Five new Democrats will be replacing Republicans who opposed the legislation named after Lilly Ledbetter, the female employee who lost her suit against Goodyear Tire and Rubber over discrimination claims. The Supreme Court ruled that Ledbetter should have filed her claim within six months of the alleged incidents.
The nature of jurisprudence is that big issues can be settled over small fights. Hence, at the Supreme Court today, the tiny Summum Church was arguing about whether religious monuments in public parks constitute private or government speech.
Although not at question in the case, one of the most interesting aspects is the Summum religion itself.
Su Menu, the church’s president, agreed. “If you look at them side by side,” Ms. Menu said of the two monuments, “they really are saying similar things.”
The Third Commandment: “Thou shalt not take the name of the Lord thy God in vain.”
The Third Aphorism: “Nothing rests; everything moves; everything vibrates.”
Now that’s religious diversity.
With just over a week to go until the election, things are popping at People For. I want to let you know how we're using your support to make an impact on many fronts.
The Voters Alliance: Building Progressive Power
People For the American Way's federal political action committee is helping build a progressive majority in Congress. We were thrilled that an extremely successful online contest run by the Voters Alliance raised more than $130,000 for 24 progressive House candidates. And now the Voters Alliance is working with Oscar-winning director Errol Morris and volunteers from the award-winning advertising firm Chiat Day (of Apple fame) to create short but powerful online profiles of moderate voters who have decided that Obama has earned their vote. The spots are being digitally filmed and edited this week in time for a final pre-election push. I'll let you know when they're ready to watch online and forward to your friends.
Sounding the Alarm: The Court is at Stake
People For the American Way has succeeded in getting media and progressive candidates talking about the importance of the Supreme Court in this election. Now we're kicking it up a notch, with TV spots for Maine, Minnesota, New Hampshire, North Carolina and Oregon, reminding voters that senators have hurt their interests by backing Bush's extreme judges. People For the American Way Action Fund has been running radio ads holding John McCain and other senators accountable for voting to confirm Bush's worst judicial nominees.
Confronting Homophobia and Anti-Gay Discrimination
In California, where the Right has stirred a vicious backlash against a state Supreme Court ruling protecting marriage equality, People For the American Way Foundation's African American Ministers Leadership Council has launched a radio ad campaign calling on African Americans to reject anti-gay discrimination. Check out the ads here. This work is part of a long-term effort to engage clergy and challenge homophobia in the Black Church and in African American communities. Rev. Kenneth Samuel, the courageous and inspiring head of AAMLC's Equal Justice Task Force, is on the ground in California now, and he'll be leading this groundbreaking effort to create social change in the months and years ahead.
Calling out the Promoters of Fear and Hatred
We're also challenging campaign tactics that are stirring up a dangerous brew of fear and bigotry. For example, when John McCain falsely accused a progressive voter registration group of trying to steal the election, its offices were barraged with hateful and threatening messages. We made it impossible to ignore this hostility and bigotry by posting images and audio of the actual messages online for the world to see. And with a full-page ad in the New York Times and other media outreach we have worked hard to help people understand that bogus charges of voter fraud are meant to give cover to the real threat to the election from right-wing voter suppression. Our Right Wing Watch blog has been all over the Religious Right's bigotry and fearmongering.
Overcoming Voter Suppression
People For the American Way Foundation's Democracy Campaign staff have been traveling the country training community organizers who are running election protection efforts and distributing in-depth, state-specific voter protection toolkits. With the help of SEIU, NAACP, NEA, Unity 08, Democracia Ahora and other partners, our Foundation has distributed more than 180,000 palm cards in key states to help voters understand and protect their rights. The Foundation is working with allies to recruit poll workers where they're sorely needed and will be distributing inexpensive video cameras to members who will document what happens on Election Day. There's no way to stop all the dirty tricks that the Right has in store, but People For Foundation has been working hard to put protections in place, and after the election it will work hard to figure out what went wrong this time, and fight for legal and regulatory fixes. Two New York Times editorials in the past week have confirmed that voter fraud is a myth and affirmed the importance of the Election Protection work the Foundation is doing to help voters understand and assert their rights.
Change is in the air, but as you know, it doesn't just happen. We all need to make it happen. With your help, we and our allies are going to change the country! Thanks so much for making it all possible.
If you haven't already gotten a chance, be sure to read Joan Biskupic's article on the Supreme Court in today's USA Today, a good primer on the choice that voters face on Election Day.
The appointment of life-tenured judges can be an administration's most consequential legacy, as Obama and McCain observed in last week's debate. Five of the nine Supreme Court justices are age 70 or older, so a new president might have to make multiple appointments.
Because the court is tightly split over issues such as abortion rights, race-based policies and the handling of Guantanamo Bay detainees, even a change of one justice could alter the law across the nation for decades to come.
The article does contain one line of very generous understatement.
[Palin] has invoked God on public occasions and suggested she does not believe in a high wall to separate church and state.
I think that's a pretty safe inference.
The website also offers a fun little SCOTUS quiz. (I don't mean to brag, but I aced it.)
As the Editor & Publisher reported yesterday, Barack Obama is winning the race for newspaper endorsements in a landslide, 112-39. Especially notable is the fact that at least 25 papers that supported Bush in 2004 have endorsed Obama this time around.
The Supreme Court consistently appears as one of the foremost concerns.
The Kansas City Star, a key swing state paper, touts a prospective Obama administration as a “safeguard for liberties”:
Obama wants judges who won’t favor the strong at the expense of the weak. He offers hope for a Supreme Court that would reject excessive executive power and protect precious freedoms.
The Santa Fe New Mexican writes:
At least as important is that we can also trust him to restore the credibility of our judiciary as vacancies occur at district and appellate levels, as well as at the Supreme Court. Civil liberties in particular, and justice in general, have suffered enormously in recent years.
Obama endorsers understand that the Supreme Court is on the ballot November 4th, and they understand the importance of repairing the damage done to the federal court system by the Bush administration. Obama, if elected, will have a mandate to do just that.
Check this out. The Dayton Daily News is reporting that because Joe "The Plumber" Wurzellbacher's last name is spelled with an "o" not a "u" on the registration rolls, he could be knocked off the rolls under a policy advocated by the Ohio Republican Party in a suit it has filed against the Ohio Secretary of State. The GOP is trying to get the Secretary of State to send to county board of elections "mismatches" - including ones like these -- where the name on the registration is different from the name on DMV or Social Security records. Jennifer Bruner, the Secretary of State, says the action the Ohio GOP is pressing for could disenfranchise up to 200,000 voters. TheGOP is stirring the pot about ACORN and worried that some election official might let Mickey Mouse vote? Give me a break. Let Joe the Plumber vote, and then let's foucs on the real problem - systematic efforts by the Right to disenfranchise hundreds of thousands of voters
And this just in - it looks like the U.S. Supreme Court has just stayed a lower court order that would have required the Secretary of State to send out these lists of mismatches. Stay tuned for more on that!
In case you aren't already convinced that next month's election is pretty frickin' important, here's something else to consider: the next president will almost certainly have the power to shape the future of the Supreme Court for decades to come.
What does that mean for Roe v. Wade — and the future of reproductive rights in this country? We put together a short video that walks through some scary math. Click here to check it out.
Radar magazine has a great interview this week with Linda Greenhouse, who recently retired after 30 years of covering the Supreme Court for The New York Times.
It's a long, wide-ranging interview, so I'd recommend reading the whole thing, but here's one of the best bits: Greenhouse talking about the Court's power to make the world better — particularly in terms of advancing gay rights. She refers here to the Court's 2003 decision in Lawrence v. Texas to strike down a law that essentially made it a crime to be gay.
I talk about gay rights quite a lot as a marker of how much better off we are. I believe that very strongly. I think that was probably the most gripping scene I ever witnessed at the Court—when Kennedy read the majority opinion in Lawrence v. Texas. Usually, when you go up to the Court, you don't know what's coming that day. But it was the last day of the term, and Lawrence was the last undecided case. So everybody knew, and the Court was filled with gay and lesbian members of the Supreme Court bar. When Kennedy got to where he said Bowers v. Hardwick was wrong when it was decided, it's wrong today, and we hereby overrule it, all these lawyers in the bar section started crying. It was just a wonderful scene. It was great.
Judith Schaeffer, our former legal director, wrote a great reflection on Lawrence v. Texas this past June, on the five-year anniversary of the landmark decision. Read it here.
Break out the chilled champagne!
As you may have already heard, the Connecticut State Supreme Court today ruled that the state constitution prohibits marriage discrimination. That means that *gasp* same-sex couples will be treated like everyone else!
It is, of course, worth pointing out one really obvious fact that the right wing will no doubt conveniently forget.
The ruling does not affect church's decisions about which marriages to perform and which not to.
Please, repeat that statement whenever you hear someone talking about how this decision "infringes on religious liberty." (It doesn't.) Churches will always have final say over their own ceremonies.
You can read more about the myths surrounding this decision here.
Now where's that champagne?
In case you didn't see, our president, Kathryn Kolbert, was quoted in the Los Angeles Times yesterday:
Some advocates worry that the perennial cries of "Roe is falling" has had the effect of muting such claims.
"What we find scary is that people don't understand what's at stake," said Kathryn Kolbert, president of People for the American Way. "In the next four years, one to as many as three Supreme Court justices may step down, and they all will come from the liberal end of the court."
It is absolutely critical that voters understand that the Supreme Court is on the ballot this Election Day. The kind of judges the next president will nominate to the Court will determine its direction for decades.
At the Vice Presidential debate last night, Joe Biden referenced his leadership against Robert Bork’s nomination to the Supreme Court.
And it didn't take me long -- it was hard to change, but it didn't take me long, but it took about five years for me to realize that the ideology of that judge makes a big difference.
That's why I led the fight against Judge Bork. Had he been on the court, I suspect there would be a lot of changes that I don't like and the American people wouldn't like, including everything from Roe v. Wade to issues relating to civil rights and civil liberties.
Biden is entirely correct. The ideology of a judge matters immensely. Right wing judges who bring a political agenda to the courts have no business being nominated or confirmed.
Of course, Joe Biden wasn’t alone in leading the fight against Bork. People For the American Way led the campaign in the public arena, including this ad, narrated by Gregory Peck.
Here's more video from Sarah Palin's interview with Katie Couric — in which Couric asks her to name Supreme Court decisions she disagrees with and she lapses into confounded silence after naming only one, Roe v. Wade.
I realize that the larger thing we should be concerned about is McCain and what sorts of justices he'd nominate as president — because the next president could potentially name up to three, going by the current justices' ages and chances of retiring.
But it's worth noting (and being kinda horrified by) the fact that Palin — the person who could be, as the media likes to say, "a heartbeat away" from having the power to shape the direction the high court takes for the next 40 years — can't extemporaneously name more than one Supreme Court case she disagrees with.
COURIC: What other Supreme Court decisions [than Roe v. Wade] do you disagree with?
PALIN: Well, let's see. There's — of course — in the great history of America rulings there have been rulings, that's never going to be absolute consensus by every American. And there are — those issues, again, like Roe v Wade where I believe are best held on a state level and addressed there. So you know — going through the history of America, there would be others but —
Video/transcript via Ben Smith of The Politico.
A portion of Katie Couric’s interview with Sarah Palin that aired Tuesday focused, among other things, on equal pay. The transcript:
Couric: Where do you stand on the Ledbetter Fair Pay Act?
Palin: I’m absolutely for equal pay for equal work. The Ledbetter pay act - it was gonna turn into a boon for trial lawyers who, I believe, could have taken advantage of women who were many, many years ago who would allege some kind of discrimination. Thankfully, there are laws on the books, there have been since 1963, that no woman could be discriminated against in the workplace in terms of anything, but especially in terms of pay. So, thankfully we have the laws on the books and they better be enforced.
Couric: The Ledbetter act sort of lengthens the time a woman can sue her company if she's not getting equal pay for equal work. Why should a fear of lawsuits trump a woman's ability to do something about the fact that women make 77 cents for every dollar a man makes. And that's today.
Palin: There should be no fear of a lawsuit prohibiting a woman from making sure that the laws that are on the books today are enforced. I know in a McCain-Palin administration we will not stand for any measure that would result in a woman being paid less than a man for equal work.
Couric: Why shouldn’t the Ledbetter act be in place? You think it would result in lawsuits brought by women years and years ago. Is that your main problem with it?
Palin: It would have turned into a boon for trial lawyers. Again, thankfully with the existing laws we have on the books, they better be enforced. We won't stand for anything but that. We won't stand for any discrimination in the workplace - that there isn't any discrimination in America.
At first blush, it looks like Palin is just rehashing McCain’s argument against Ledbetter: “I don’t believe that this would do anything to help women except maybe help trial lawyers and others in that profession.” She does manage to eke out the lawyer-bashing McCain line, while asserting that McCain-Palin “won’t stand” for discrimination, but after that she appears to get a little lost. She seems to think that the “fear of lawsuits” Couric refers to in the second question are people suing women to prevent them from enforcing “the laws on the books.”
But a closer look reveals an even more fundamental misunderstanding. She says that “thankfully, we have the laws on the books." Well, yes, but thanks to Samuel Alito, that law means a lot less than it used to.
Ledbetter v. Goodyear, the Supreme Court decision that led to the Ledbetter Fair Pay Act, involved a woman, Lilly Ledbetter, who worked at a Goodyear Tire plant for almost twenty years, for a salary much less than her male co-workers. The “laws on the books,” as read by Justice Alito and the rest of his voting bloc, said that Ledbetter’s discrimination claim needed to be filed within 180 days of the first discriminatory paycheck. The only problem: Ledbetter first found out about the unequal pay through an anonymous tip, sixteen years after that first paycheck.
Of course, it’s not surprising that Palin doesn’t know the substance of the Ledbetter case—apparently, when asked to name Supreme Court cases, the only one she could produce was Roe v. Wade.
In an interview with Katie Couric, it appears as if Sarah Palin was unable to name a single Supreme Court case other than Roe v. Wade.
The Palin aide, after first noting how "infuriating" it was for CBS to purportedly leak word about the gaffe, revealed that it came in response to a question about Supreme Court decisions.
After noting Roe vs. Wade, Palin was apparently unable to discuss any major court cases.
There was no verbal fumbling with this particular question as there was with some others, the aide said, but rather silence.
I like to think that if prompted, she could tell us what Brown v. Board of Education accomplished, but I’ve learned not to take anything for granted.
Anyway, Sarah, allow us to tell you about one or two cases that your own running mate has had a hand in bringing about. Thanks to the confirmation of John Roberts and Samuel Alito, you can use any of these cases to talk about how the Court affects ordinary Americans.
And that’s just the tip of the iceberg! Thanks to your running mate, there are all sorts of terrible, terrible Supreme Court decisions that limit our rights and freedoms. Better get studyin’.
Another federal court decision was expected later in the day over the early voting window, which begins Tuesday and has become a partisan battle in a swing state where President Bush narrowly clinched re-election in 2004.
In a 4-3 decision, the Ohio Supreme Court said Secretary of State Jennifer Brunner was correct in ruling that voters don't need to be registered for at least 30 days before receiving an absentee ballot.
Republicans, who claimed that Brunner was misinterpreting the law to benefit her party, had backed lawsuits filed against the measure.
The decision is a real victory for voting rights and another acknowledgement that government should encourage people to vote, not make it more difficult for them to do so. And, of course, it will likely help increase turnout in Ohio, one of the crucial states this November.