It is, at first glance, a rather routine statement made by President Obama's #2 when he in an interview with Minnesota Public Radio he remarked
The Senate gets to have a say, and so in order to get this done the president is not going to be able to go out (nor would it be his instinct anyway) to pick the most liberal jurist in the nation and put them on the court, There are plenty of judges are on high courts already who have had unanimous support of the Republicans.
Innocous sounding, it nevertheless provides insight into Joe Biden's decision not to make the run against Hillary Clinton and Bernie Sanders, presumably his last opportunity for a shot at becoming President of the United States of America. Surely he would not have been endorsed by one Anita Hill. For as Hill could tell you and others have, if a Democrat with backbone had been chairman of the Senate Foreign Relations Committe at the time, Clarence Thomas would not have been gotten to the Supreme Court. He would have crawled back into the sewer from which President George HW Bush had plucked him.
If it is uncertain whether Biden thought about the Thomas-Hill affair (not the type of affair Thomas probably wanted), before deciding not to make another run at the presidency. More significantly, Biden might have been offering us a hint when he remarked "there are plenty of judges are (sic) on high courts already who have had unanimous support of the Republicans."
If so, speculation about the possible nomination of Sri Srinavavan, Loretta Lynch, Amy Klobuchar, Cory Booker (the first two much more realistic) and other neo-liberals or centrists has a disturbing basis in fact. These are individuals who if nominated, might possibly convince Republicans to consider- consider- granting a hearing before GOP senators overwhelmingly reject them.
There still is a possibility that the President will nominate someone genuinely progressive to the High Court. But going along to get along, which the Vice-President evidently expects the President to do, is an Obama specialty. Notwithstanding the solid selection of Sonia Sotomayor and of Elena Kagan, President Obama usually (out of naivete or ideology) has acted as if he believed that if he would only go halfway, the GOP will, also.
Now that the Republican Party- contrary to its approach when one of its own has been President- has condemned the notion that Obama should nominate anyone to replace Justice Scalia, the gauntlet has been thrown down. We know how a President Biden would have responded, and can only hope he doesn't know the Presdient's mind.
Score one for Associate Justice Antonin Scalia in his opinion concurring with that of Chief Justice Roberts, two of the four Justices on the losing side of the decision (photo by Alex Wong/Getty Images) striking down state bans on same-sex marriage. Scalia notes
The opinion is couched in a style that is as pretentious as its content is egotistic. If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.
Anthony Kennedy, who penned the majority opinion (joined in by the four Democratic Justices), obviously has tenure but, if he stepped down at some point, will have a job assured promoting the Human Potential Movement. He'll never, however, will do any better than conflating legal reasoning with "express their identity." Fellow Republican Caitlyn Jenner is bursting with pride.
But score two for Crooks and Liars' Juanita Jean. Without explanation or good reason, she labels Scalia's remark "crap." Still, given the majority opinion in Bush v. Gore, she envisions Associate Justices Kagan, Sotomayor, and Ginsburg having a good laugh at Scalia's argument that
.... to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation. But what really astounds is the hubris reflected in today’s judicial Putsch.
No one, however, ever suggested that avoidance of hypocrisy, even on such a grand scale, is a qualification for sitting on the United States Supreme Court. So score not one, not two, but three or more for Justice Kennedy, who got all four liberal, free-thinking Justices to agree with him that
.... the Court has long held the right to marry is protected by the Constitution. In Loving v. Virginia, 388 U. S. 1, 12 (1967), which invalidated bans on interracial unions, a unanimous Court held marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The Court reaffirmed that holding in Zablocki v. Redhail, 434 U. S. 374, 384 (1978), which held the right to marry was burdened by a law prohibiting fathers who were behind on child support from marrying. The Court again applied this principle in Turner v. Safley, 482 U. S. 78, 95 (1987), which held the right to marry was abridged by regulations limiting the privilege of prison inmates to marry. Over time and in other contexts, the Court has reiterated that the right to marry is fundamental under the Due Process Clause. See, e.g., M. L. B. v. S. L. J., 519 U. S. 102, 116 (1996); Cleveland Bd. of Ed. v. LaFleur, 414 U. S. 632, 639–640 (1974); Griswold, supra, at 486; Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942); Meyer v. Nebraska, 262 U. S. 390, 399 (1923)
Neither Roberts (joined by Alito), Scalia or Thomas questions the fundamental right to marry, either as established by courts or by demonstrated importance to society through the ages. (Scalia does, though, offer on page 8 of his dissent insights which have escaped his colleagues.) Of course they don't. It's what conservatives long have believed and emphasized- the superiority of the married state to the unmarried state, even of married individuals to unmarried individuals. Associate Justice Kennedy neatly summarized that concept in maintaining
From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations....
It's great to learn from one of the conservative judges that traditional marriage promises "nobility and dignity" that being single does not. It's even more impressive that the four progressive Justices on the Court signed on to that reasoning. Sotomayor, Kagan, Ginsburg, even Breyer may be having a good laugh, along with a deep sense of satisfaction, today. But the biggest guffaw belongs to Anthony Kennedy, who has gotten them, and lay supporters of same-sex marriage, to accept an antiquated concept of marriage and the individual.
In January, the American Family Association issued a news release which- in the unlikely event it would be successful- would give opponents of same-sex marriage a fighting chance when the matter hits the High Court this summer. In part, it read (italics the organization's)
In light of the U.S. Supreme Court’s announcement that it will hear the issue, American Family Association (AFA,www.afa.net) says Supreme Court Justices Elena Kagan and Ruth Bader Ginsburg should recuse themselves from making any same-sex marriage decisions because they have both conducted same-sex marriage ceremonies.
“Both of these justices’ personal and private actions that actively endorse gay marriage clearly indicate how they would vote on same-sex marriage cases before the Supreme Court,” said AFA President Tim Wildmon. “Congress has directed that federal judicial officers must disqualify themselves from hearing cases in specified circumstances. Both Kagan and Ginsburg have not only been partial to same-sex marriage but they have also proven themselves to be activists in favor of it. In order to ensure the Court’s integrity and impartiality, both should recuse themselves from same-sex marriage cases. Congress has an obligation to Americans to see that members of the Supreme Court are held to the highest standards of integrity. The law demands it, and the people deserve it"....
Kagan performed a September 21, 2014, same-sex marriage ceremony for her former law clerk and his partner in Maryland. And Ginsburg performed a same-sex marriage ceremony at the Kennedy Center for the Performing Arts in Washington D.C., in August 2013.
Bill O'Reilly emphatically agrees. However, the District of Columbia legalized same-sex marriage in 2009, as did the State of Maryland in November, 2012. It is not unprecedented for Supreme Court justices to perform wedding ceremonies and the ceremonies cited by the AFA were as legal as opposite-sex marriages. Ian Millhiser persuasively argues
If mere participation in a legal institution was grounds for recusal, then it would be difficult to find judges or justices who weren’t recused from many cases. The speed limit in the state of Colorado, for example, is 75 mph, while other states have lower speed limits. Yet, if a litigant were to challenge one of these lower speed limits in court, a judge would not be required to recuse themselves simply because they once drove on Colorado’s roads and took advantage of its higher speed limits.
It's not only that Kagan and Ginsburg have done nothing wrong. From 1976 to 1979 Clarence Thomas was a lawyer for Monsanto Corporation and as an Associate Justice has taken substantial money- as gifts or speaking engagements- from organizations advocating the interests of agribusiness. Yet (or maybe therefore) he still sat when the US Supreme Court decided Monsanto Co. v. Geertson Seed Farms in 2010 and Bowman v. Monsanto Co. in 2013.
Moreover, shortly before the Supreme Court ruled on the constitutionality of the Affordable Care Act, in June 2012 Elizabeth Flock of US News & World Reportexplained that Justice Thomas' wife Ginni
has been a vocal critic of the Affordable Care Act, and she has certainly made money off of that criticism. In 2009, she founded the Tea Party nonprofit lobbying group Liberty Central, which lobbied against the law. There, she made a salary of $120,000, according to the group's 2010 tax filing. A startup donation to Liberty Central to the tune of $500,000 came from Harlan Crow, a Dallas real estate investor, Republican donor, and friend of Justice Thomas, Politico reported in 2011. Crow declined to comment to the New York Times about whether he was the source of the money. Ginni Thomas later stepped down as CEO and president of Liberty Central, but started Liberty Consulting in 2010, which also did anti-healthcare reform lobbying, according to the liberal site Mother Jones. And in January 2011, it came to light that Justice Thomas had "inadvertently" left out information about his wife's employment over the last 13 years—where her earnings added up to as much as $1.6 million, the Huffington Post reported. One of her former employers: the Heritage Foundation, where Ginni Thomas made hundreds of thousands of dollars between 2003 and 2007, according to a letter from Thomas to the Committee on Financial Disclosure. The foundation has also been a vocal opponent of the healthcare reform law.
That's (relatively) small potatoes, admittedly. Monsanto won both its cases overwhelmingly and the Supreme Court upheld the constitutionality of the ACA, though it rejected its Medicaid provision. Of far more consequence, however, was Bush v. Gore (1st cartoon from slideshare.net, 2nd from Ann Telnaes), handed down a little over 14 years ago. Most famously, then- Chief Justice Rehnquist and Associate Justice O'Connor had stated their intention to step down if the Republican became President.
More significantly, however, Ginni Thomas- yes, she again- was at the time working at the Heritage Foundation drawing up a list of potential appointees in a Bush Administration. And Justice Scalia's son Eugene was employed at the law firm of Gibson, Dunn, & Crutcher, one of whose partners was Theodore Olson, lead attorney for the former Texas governor in the Supreme Court litigation. and later Solicitor General in the Bush Administration. (Scalia's son John worked for the firm representing the ticket in the Florida courts.)
When it really counted- when the presidency of the United States and the integrity of the electoral process were at stake- Repub justices decided personal interests came before morality and ethics. Being Democrats, Kagan and Ginsburg probably would recuse themselves were there an actual conflict. But there isn't, and they won't.
In an interview published last October in New York magazine, Supreme Court Justice Antonin Scalia revealed that he and his wife "get" The Wall Street Journal and the Washington Times, but no longer the Washington Post because it "became so shrilly, shrilly liberal."
And he gets "most of my news, probably" on the radio, largely from talk radio. He loves Bill Bennett's program because Bennett is a friend and the "program is very thoughtful" with "good callers."
Evidently, though, Scalia has never called into the program. He said as much, telling reporter Jennifer Senior "I think they keep off stupid people."
That would include Justice Scalia. And no, not because he's a right-winger or gets confused about cases but because Antonin Scalia is truly ignorant. It doesn't make it any better that it was over four years ago when Slate's legal correspondent Dahlia Lithwick wrote
There's just one person at oral argument in Salazar v. Buono this morning who really wants to talk about whether a 5-foot cross on federal government land in the Mojave National Preserve violates the Constitution's Establishment Clause. But Justice Antonin Scalia really, really wants to talk about it. He looks particularly queasy when Peter Eliasberg—the ACLU lawyer whose client objects to crosses on government land—suggests partway through the morning that perhaps a less controversial World War I memorial might consist of "a statue of a soldier which would honor all of the people who fought for America in World War I and not just the Christians." "The cross doesn't honor non-Christians who fought in the war?" Scalia asks, stunned. "A cross is the predominant symbol of Christianity, and it signifies that Jesus is the son of God and died to redeem mankind for our sins,: replies Eliasberg, whose father and grandfather are both Jewish war veterans. "It's erected as a war memorial!" replies Scalia. "I assume it is erected in honor of all of the war dead. The crosss is the most common symbol of... of... of the resting places of the dead." Eliasberg dares the to correct him: "Th cross is the most common symbol of the resting place of Christains. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.'\" "I don't think you can leap from that to the conclusion that the only war dead the cross honors are the Christtian war dead," thunders Scalia. "I think that's an outrageous conclusion!" Far less outrageous is the conclusion that religious symbols are not religious.
Not surprisingly, the High Court decided against Frank Buono, who had sought to prevent permanent display of the cross (from Slate, pictured below) and theological scholar Scalia was part of the five-vote majority. Also not surprising is that Antonin Scalia, reportedly a devout Roman Catholic, once claimed "the most disreputable area of our laws is the establishment clause." That perspective is par for the course for a guy who, at well over the age of 70, had to be told what the cross symbolizes for Christians.
This is simply extraordinary. We're talking about Justices- including the head guy- of the United States Supreme Court here. Sahil Kapur of Talking Points Memo reports
Chief Justice John Roberts took a swipe at President Obama during oral arguments Wednesday, arguing that the president should stop executing the parts of the Defense of Marriage Act he deems unconstitutional rather than relying on the courts to pave the way. “If he has made a determination that executing the law by enforcing the terms is unconstitutional, I don’t see why he doesn’t have the courage of his convictions,” Roberts said of Obama, “and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, oh, we’ll wait till the Supreme Court tells us we have no choice.” In response, Vicki Jackson, the lawyer appointed by the Supreme Court to argue that the court lacks standing to hear the case, responded that it’s “a hard question” given that the constitutional questions turn on what relief the injured parties are seeking. The case was unusual in that the Obama administration, after initially defending the law, switched sides in 2011 and began pushing the Supreme Court to overturn it, concluding that it was discriminatory and unconstitutional. (It’s rare but within precedent for a president to refuse to defend the validity of a federal law.) As a result, the House Republican majority took the reins and hired counsel to defend it in court. Meanwhile, the Justice Department said it would continue to enforce the law until the courts reach a decision as to its validity. Justice Antonin Scalia also took issue with the White House’s approach to DOMA, comparing it to an alleged debtor who admits to owing someone money but refuses to pay it. “Which is the equivalent of the government saying, yeah, [a law is] unconstitutional but I’m going to enforce it anyway,” Scalia said. “I’m wondering if we’re living in this new world where the Attorney General can simply decide, yeah, it’s unconstitutional, but it’s not so unconstitutional that I’m not willing to enforce it. If we’re in this new world, I don’t want these cases like this to come before this Court all the time.”
Consider reaction of Repubs to President Obama's directive in early 2011 to Attorney General Holder not to defend the Defense of Marriage Act in court. Michele Bachman promptly called it "a crushing blow to the traditional marriage movement." Newt Gingrich went further, labeling the move "clearly a dereliction of duty" and "a violation of his constitutional oath." (The next day, Gingrich pulled back- slightly.) Rick Santorum promptly termed it "an affront to the will of the people" and Mike Huckabee maintained the Administration "is clearly out of sync with the people." (Believing the President should have acted according to poll results, do Santorum and Huckabee now favor same-sex marriage? Just asking.)
And that was merely for Barack Obama deciding not to commit government resources, tax dollars, to defending in court a law which preceded Obama's entry into the Oval Office. Scalia knocks Obama for, as the Justice puts it, deciding "yeah, it's unconstitutional, but it's not so unconstitutional that I'm not willing to enforce it." He challenges the President to refuse to enforce a law duly passed by Congress. He wants Obama to substitute his own judgement for that of the Congress and of the Courts, which had not ruled DOMA unconstitutional.
Apparently, John Roberts is king of the double standard. Ian Milhiser recalls
In 1990, the Justice Department was tasked with defending a law protecting an affirmative action program governing broadcast licensing to minority-owned stations. Despite the fact thatnone of the traditional reasons why DOJ might refuse to defend a federal law were present in the case, then-acting Solicitor General Roberts refused to defend the law anyway. Instead, Roberts signed a brief arguing that the law was unconstitutional. Ultimately, the law Roberts refused to defend was upheld by the Supreme Court. So when the Obama Administration refused to defend DOMA, it did nothing more than follow the “Roberts Rule” and travel the path laid by Chief Justice Roberts himself. If Roberts’ fellow conservative have a problem with this Roberts Rule, they should take it up with the Chief.
Operating in a nation of laws and not of men, the Attorney General, and through him the President, has a duty to enforce a law he is not required to defend in court. As a White House spokesman told reporters, "Well, there is a responsibility that the administration has to enforce the laws that are on the books, and we’ll do that even for laws that we disagree with, including the Defense of Marriage Act. It’s not unprecedented for an administration to take that position." Even Antonin Scalia and John Roberts should be able to understand that.
Scalia noted the commerce clause empowers Congress to regulate not only the "channels" and "instrumentalities" of interstate commerce but also intrastate activities that "substantially affect" interstate commerce, and that the constitution authorizes Congress to enact measures that are "necessary and proper" to effectuate its objectives when exercising authority under the commerce clause or any other enumerated power.
Scalia, who voted to prevent a recount in Bush v. Gore (and now distorts the Court's finding), thus handing the presidency to Republican George W. Bush, apparently is yet again succumbing to the lure of partisanship.
If Congress —if Congress says that the interstate commerce is affected, isn’t, according to your view, that the end of the analysis.Cuccinelli recalled Chief Justice John Roberts asking why health insurance is unique as something the government can require Americans to purchase. Justice Antonin Scalia then chimed in, asking whether the government could require Americans to exercise, a regulation that would presumably also lead to improved health.
This is just plain silly. In a November post on The Monkey Cage evaluating the likelihood of the Supreme Court upholding the PPACA, reader Scott Monje explained
insurance isn’t really a commodity like broccoli. Health care is the commodity; insurance is the means for paying for it. No one has proposed opting out of health care, only out of paying for it. To borrow the GOP’s slippery slope analogy, where will it all end? If people can opt out of this, will they soon be allowed to opt out of paying for their broccoli at the supermarket?
And interviewed by Ezra Klein, Harvard law professor Charles Fried, a solicitor general under President Reagan, notes
the limiting principle point kind of begs the question. It assumes there’s got to be some kind of articulatable limiting principle and that’s in the Constitution somewhere. What Chief Justice John Marshall said in 1824 is that if something is within the power of Congress, Congress may exercise that power to its fullest extent. So the question is really whether this is in the power of Congress. Now, is it within the power of Congress? Well, the power of Congress is to regulate interstate commerce. Is health care commerce among the states? Nobody except maybe Clarence Thomas doubts that. So health care is interstate commerce. Is this a regulation of it? Yes. End of story.
Nevertheless, both Scalia and Kennedy argued that the imposing a mandate amounted to regulating inactivity (rather than activity). Justice Kennedy contended "The reason this is concerning is because it requires the individual to do an affirmative act." But Fried counters
Activity and inactivity is not in the Constitution. Now, there are millions of cases that talk about the power to regulate activities that affect interstate commerce, from which (law professor and critic of PPACA) Randy Barnett drew the conclusion inactivity is not included. It just hadn’t come up! And if 95 percent of them are in that market every five years, they’re in it. They haven’t put that off. They’ve gone to a health-care clinic. They’ve procured a prescription for a prescription drug. Ninety-five percent of the population! So where’s the inactivity?
If the constitutionality of the Act- even of the most controversial portion, the mandate- were considered on its merits, the Administration would have little to worry about. But Mr. Dooley's aphorism, "No matter whether the country follows the flag or not, the Supreme Court follows the election returns," still applies. The Administration did not persuade the country of the necessity of requiring payment of health insurance to prevent, or at least curb, the incidence of free riders. Notwithstanding the rescue of the domestic automobile industry, the signature achievement of the Obama presidency is generally assumed (at least by the media) to be health care reform. And there is an election coming up, which has not escaped the attention of the United States Supreme Court.
Justice Samuel Alito today asked the Obama Administration's Solicitor General today (audio here- and a lot of other places) whether, if the commerce clause enables the federal government to mandate purchase of health insurance, it can mandate purchase of burial insurance. It is an intriguing question, though a couple of liberal Justices offer reasonable explanations for why the situations are not analogous. If purchase of health insurance is put off until absolutely necessary, the inevitable acquisition of healthcare, as uncompensated care, results in a significant increase in cost. Additionally, health care is a nearly unique commodity in that its adequate provision requires (for all but the supremely wealthy) the purchase of insurance.
The example of burial insurance has the advantage of being at least vaguely analogous to health insurance. But Chief Justice Roberts asks whether the federal government could mandate purchase of a cellphone and Justice Scalia asks if it applies to broccoli. Seriously.
Antonin Scalia, before receiving his law degree from Harvard Law School, received a Bachelor of Arts degree from Georgetown University in Washington, D.C. and prior to that, graduated from St. Francis Xavier, a military preparatory school in New York City, New York. John Roberts, before receiving his law degree from Harvard and before that, received a Bachelor of Arts degree from Harvard and prior to that, graduated from LaLumiere School, a Catholic boarding school in La Porte, Indiana.
Broccoli and even cellphones are unnecessary. Land line phones have not been abolished and, once upon a time, people making phone calls used only a land line which, at the time, was known simply as a phone. Some individuals remain holdouts, preferring not to utilize cell phones.
Broccoi, admittedly a very nutritious kind of food, is even more clearly unnecessary. Vitamins, minerals, fiber, phytochemicals and the other antioxidants generously supplied in broccoli are obtainable in other food. Additionally, broccoli contains little if any protein or fat, essential for the human mind and body. There are alternatives- even within the family of vegetables (and consumption of vegetables, though greatly desired, is not absolutely, invariably necessary to human health-) to broccoli, and even effective means of communication aside from the cell phone.
There is another difference between mobile phones/broccoli that any high school graduate, even Justices Alito and Roberts, understand: phones and vegetables are products; health care, irrelevant until it is supplied, is a service.
Antonin Scalia and John Roberts obviously are not uneducated, unintelligent, or even weak in the art of logic. Unfortunately, though, a Justice who suggests that the purchase of cell phones and broccoli are equivalent to the acquisition of health insurance has his mind made up before oral arguments.
But Justices of the United States Supreme Court? The Supreme Court is not only the highest court in the land, but virtually invulnerable, determining its own rules. Nobody, but nobody is the boss of the Supreme Court.
Supreme Court Justice Clarence Thomas has amended 13 years’ worth of disclosure reports to include details of wife Virginia Thomas’s sources of income, documents released on Monday show.
The documents indicate that Thomas’s wife, who goes by Ginni, had worked for Hillsdale College in Michigan, the Heritage Foundation and the Republican leadership in the House of Representatives, among other entities.
Like all federal judges, Thomas must file annual disclosure reports on his personal finances, but he had omitted details of his wife’s earnings in what he wrote was a “misunderstanding of the filing instructions.” He also had checked a box marking no spousal income.
Thomas did not include in his new submissions any information about Ginni’s work for Liberty Central, a tea-party-affiliated group. The group’s 2009 990 tax form did not include any payments to her and she stepped down from her official role with the group in November.
Last week, watchdog group Common Cause reported that none of the nearly $690,000 the Heritage Foundation said it had paid Ginni Thomas between 2003 and 2007 had been reported on Justice Thomas’s annual financial disclosure forms.
One wonders: does the federal employee, whose pay President Obama and most congressional Republicans want frozen, hide the income of his or her spouse? Is the rare federal employee whose spouse has earned well over $100,000 per year, as Mrs. Thomas normally did, blissfully unaware?
Let's not, however, be exorcised about an Associate Justice hiding his wife's income from the Internal Revenue Service. It is an oversight, or omission, typical of that made by many Americans intent on lowering their taxable income, law be damned. Maybe you, too, forgot to mention your spouse's income of 2009 and are reading this from the federal penitentiary.
Perhaps Justice Thomas found it all too convenient to forget to remember his wife's work for the Heritage Foundation because, as Think Progress has found
In 2009, while the Supreme Court heard arguments regarding the Citizens United case, Justice Thomas was featured at the annual fundraiser for the Heritage Foundation — and sat at a table for donors with investment banker Thomas Saunders and Sen. Jim DeMint (R-SC).
Anyone can make a mistake, though when Justice Thomas forgot to recuse himself from the Citizens United case (in which he voted on behalf of Citizens United and direct corporate funding of political campaigns), the mistake might appear to be quite deliberate. That is nearly as likely as it is reprehensible given, as Think Progress notes, Justice Thomas has appeared as a speaker at meetings held by corporate billionaire and oil tycoon Charles Koch, who in 2006
revealed to the Wall Street Journal’s Stephen Moore that he coordinates the funding of the conservative infrastructure of front groups, political campaigns, think tanks, media outlets and other anti-government efforts through a twice annual meeting of wealthy right-wing donors. He also confided to Moore, who is funded through several of Koch’s ventures, that his true goal is to strengthen the “culture of prosperity” by eliminating “90%” of all laws and government regulations. Although it is difficult to quantify the exact amount Koch alone has funneled to right-wing fronts, some studies have pointed toward $50 million he has given alone to anti-environmental groups. Recently, fronts funded by Charles and his brother David have received scrutiny because they have played a pivotal role in the organizing of the anti-Obama Tea Parties and the promotion of virulent far right lawmakers like Sen. Jim DeMint (R-SC). (David Koch praised DeMint and gave him a “Washington Award” shortly after the senator promised to “break” Obama by making health reform his “Waterloo.”)
But, then, Justice Thomas is not alone in actively fostering the corporate agenda, with Justice Antonin Scalia also having been a speaker at Koch events. Sure, asssisting a political fundraising event would be a clear violation of the Code of Conduct for United States Judges, if the Supreme Court had not exempted it and its employees from the Code of Conduct for Judicial Employees.
That is especially convenient for Antonin Scalia, who now is addressing the Tea Party Caucus's first "Conservative Constitutional Seminar" event. It is open to the public, but closed to the media and there will be no official record of the event, demonstrating the commitment of the Republican ultra-right to transparency. And it is organized by Representative Michelle Bachmann (R-MN), who is threatening to run for the GOP presidential nomination and is one of 63 House members to have filed a brief in support of the lawsuit by more than two dozen states challenging the Affordable Care Act. That likely to reach the Supreme Court and Justice Scalia is demonstrating his allegiance to judicial ethics by palling around with Bachmann.
The actions of Antonin Scalia and Clarence Thomas may feature a splendid commingling of conflict of interest, greed, corporate power, and the appearance of corruption. (Common Cause petition, pertaining to Citizens United, here.) But they tell us nothing further about the commitment of either judge to GOP politics. Cenk Uygur, MSNBC host in the hour previously occupied by Ed Schultz, last night reminded us of Bush v. Gore, in which both Justices voted to stop counting election ballots. Barely suppressing a nod and a wink, Scalia assured the nation and its legal community that the decision never would be used as precedent. ("Hey, I know the ruling stinks, but five of us want a Republican President.") If anyone were concerned about the objectivity of these guys, Uygur noted, "that ship sailed a long time ago."
Last week, the Supreme Court reversed a century of law to open the floodgates for special interests -- including foreign companies -- to spend without limit in our elections. Well, I don’t think American elections should be bankrolled by America’s most powerful interests, and worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.
Recognizing that the Republicans on the Court were called out, on national television, enabling foreign corporations and the governments which control them to determine American elections, Associate Justice Samuel Alito shook his head and was heard muttering "not true."
Alito and Justice Clarence Thomas had joined the three other corporatist Justices in ruling in favor of Citizens United in the controversial and pivotal January ruling, in which corporations, unions, and other advocacy groups were authorized to spend unlimited sums, without disclosure of source, on political campaigns while given the protection of freedom of speech.
.... is raising knotty questions, in particular about her acceptance of large, unidentified contributions for Liberty Central. She began the group in late 2009 with two gifts of $500,000 and $50,000, and because it is a 501(c)(4) nonprofit group, named for the applicable section of the federal tax code, she does not have to publicly disclose any contributors. Such tax-exempt groups are supposed to make sure that less than half of their activities are political.
Mrs. Thomas now has, appropriately, decided to resign from the leadership of Liberty Central because, reportedly, of the "distractions" caused by her high profile. Still, following the ruling in Citizens United and the GOP's squashing of the DISCLOSE Act, no one knows where those contributions came from.
Nor has Justice Thomas recused himself from any cases nor suggested that he would consider doing so. It's not surprising, given that, as Think Progress revealed in October
Justice Scalia and Justice Thomas have also attended secret political fundraisers. We published a memo detailing fundraising events, organized by oil billionaires David and Charles Koch, to fund Republican campaigns, judicial elections, and groups running ads in the 2010 midterm election. The fundraisers, attended by some of the nation’s wealthiest bankers, industrialists, and other executives, help fund much of the conservative infrastructure. The memo stated the Thomas and Alito were past participants of the Koch fundraisers. Ian Millhiser, ThinkProgress’ resident legal expert, noted:
A Supreme Court justice lending a hand to a political fundraising event would be a clear violation of the Code of Conduct for United States Judges, if it wasn’t for the fact that the nine justices have exempted themselves from much of the ethical rules governing all other federal judges. Nevertheless, a spokesperson for the Supreme Court tells ThinkProgress that “[t]he Justices look to the Code of Conduct for guidance” in determining when they may participate in fundraising activities.
Now, it's Justice Alito, who recently attended a fundraising dinner for the right-wing American Spectator, whose publisher
helps lead a secretive group of conservatives called the “Conservative Action Project,” formed after President Obama’s election, to help lobby for conservative legislative priorities, elect Republicans (the Conservative Action Project helped campaign against Democrat Bill Owens in NY-23), and block President Obama’s judicial appointments. The Spectator’s gala last night, with ticket prices/sponsorship levels ranging from $250 to $25,000, featured prominent Republicans like RNC chairman Michael Steele, hedge fund billionaire Paul Singer (a major donor to Republican campaign committees and attack ad groups), and U.S. Chamber of Commerce board member and former Allied Capital CEO William Walton. Among the attendees toasting Rep. Michele Bachmann (R-MN), the keynote speaker for the event, was Supreme Court Justice Sam Alito.
We have, they tell us in civics classes, a tradition of separation of powers and checks and balances in American government. It's one thing for the Repub majority on the Supreme Court to have selected a President in 2000, in a decision Justice Scalia (who said "get over it"- a great legal mind) warned should not be used as precedent. But ten years later, a few of these judges continue to be heavily invested in the political process, trying to draw the country further right. Perhaps the mainstream media, though partial to the GOP, would consider inquiring into the political process of corporations and the Justices who are their most important supporters.
It all started when President Obama, commenting on his quest for a replacement for retiring Supreme Court Associate Justice David Souter, explained
I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people's lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.
Utah Senator Orrin Hatch summed up the reaction of conservative Republicans when he charged "Those are all code words for an activist judge who is going to . . . be partisan on the bench."
Once Judge Sonia Sotomayor was nominated by President Obama, a line from a speech she gave at the law school of the Univeristy of California-Berkeley in 2001 caused an uproar. With a little context added, Judge Sotomayor stated
Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.
And a remark Judge Sotomayor made at a panel discussion at Duke University in February of 2005, this about the role of circuit court judges, also elicited controversy. She noted (video below):
The Court of Appeals is where policy is made. And I know this is on tape and I should never say that because we don't make law. I know…I know. (some laughs) I'm not promoting it. I'm not advocating it. I'm…you know. OK. (more laughs)
Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating. It's interpretation. It's application.
The Repub long knives came out. Wendy Long (once a clerk for Clarence Thomas), counsel for the Judicial Confirmation Network, contended the Judge's "body of work.... appears to be a view of the courts as engines of soical and political change- in short, wrought out of a devotion to judicial activism." Mitt Romney decried her alleged "expansive view of the role of the judiciary." And Republican Party chief Rush Limbaugh, who accused the nominee of being a "reverse racist," claimed "We have Sonia Sotomayor who thinks that the court is where policy is made." Syndicated columnist Charles Krauthammer argues "if nothing else, it (i.e., conservatism) stands unequivocally against justice as empathy." And so on.
Now it appears that empathy is a pretty widespread emotion among judges. When promoting Clarence Thomas as his Supreme Court nominee, President George H.W. Bush referred to the judge as "a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor." When he appeared in January, 2005 before the Senate Judiciary Committee after his nomination to the Supreme Court, Judge Samuel Alito responded (slightly more than halfway through the transcript) to a question from Sen. Tom Coburn (R.-Ok.) by maintaining (video way below):
Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.
And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.
But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."
When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.
And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.
Greg Sargent has learned that soon after she was appointed to the Supreme Court, in March 1982 Sandra Day O'Connor opined
I think that I bring to the court differences in background that are more germane than my gender.
My experience as a legislator gives me a different perspective. Also, I bring to the court the perspective of a woman primarily in a sense that I am female, just as I am white, a college graduate, etc.
Yes, I will bring the understanding of a woman to the court, but I doubt that that alone will affect my decisions,” she said. “I think the important fact about my appointment is not that I will decide cases as a woman, but that I am a woman who will get to decide cases.
And if the Repub right is only a recent convert to the battle against empathy, it appears to be downright wrong about the role of judges. Mediamatters.org quotes a conservative law professor as commenting that Sotomayor's remark "seems to be nothing more than an observation that, as a practical matter, many policy disputes are resolved in the federal courts of appeals. This is an indisputably true observation." And another law professor maintains "the circuit courts play by far the greatest legal policymaking role in the United States judicial system," greater, apparently, than state courts which, Justice Scalia has written, "possess the power to “make” common law, but they have the immense power to shape the States’ constitutions as well. See, e.g., Baker v. State, 170 Vt. 194, 744 A. 2d 864 (1999)." Further, as Paul Gewirtz and Chad Golder have argued, striking down a law enacted by Congress is arguably the best criterion for determining how "activist" a judge is- and typically, the more conservative, Republican Supreme Court justices have done so more than the liberal, Democratic justices.
Obviously, the GOP is in a bind trying to determine its response to this nomination. Continuing to attack Sotomayor as a "racist" a la Limbaugh and Gingrich risks alienating the Hispanic community and its voters, not only in the short term but for a longer period. But criticizing the nominee as an "activist" judge (an illegitimate argument at that) without bringing into play the issue of "empathy" and, inevitably, ethnicity, may be walking a tightrope too precarious for even the Flying Wallendas.
Thursday, June 26, 2008
Legislating Policy From The Court
Right wing pundits, bloggers, and talk show hosts, aghast at Tuesday's (6/24/08) ruling invalidating the death penalty as punishment for child rape, were exultant on Wednesday news came of the United States Supreme Court's ruling in District of Columbia v. Heller striking down the District's gun ban. After raging against what they perceived as judicial activism in Kennedy v. Louisiana, conservatives little noticed the Court majority's splendid imitation of a legislative body in the gun decision.
Fortunately, we have Justice John Paul Stevens, joined in dissent by Justices Breyer, Ginsburg, and Souter, getting it right. He explained the ruling
will surely give rise to a far more active judicial role in making vitally important national policy decisions than was envisioned at any time in the 18th, 19th, or 20th centuries. The Court properly disclaims any interest in evaluating the wisdom of the specific policy choice challenged in this case, but it fails topay heed to a far more important policy choice—the choice made by the Framers themselves. The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy.
Frustrated lawmakers, Justice Scalia and his band of judicial activists on the Court gleefully make social policy while ignoring the U.S. Constitution.
