A Supreme Threat to American Democracy

We’re one judge away from government of the corporations, by the corporations, and for the corporations.

By Jamie Raskin

Jamin Raskin
Jamie Raskin

Here’s a little quiz you won’t find on the LSATs: Which Supreme Court justice called a recent ruling by the court a “threat to American democracy”? And what decision was it?

A. Justice Ruth Bader Ginsburg wrote it of the Citizens United decision, which armed corporations with the political free speech rights of human beings.

B. Justice Sonia Sotomayor included this phrase in her dissent to the Shelby County v. Holder ruling, which gutted the Voting Rights Act of 1965.

C. Justice Elena Kagan said it while reflecting on the Bush v. Gore case, which shut down the counting of more than 100,000 ballots in Florida — handing George W. Bush his first presidential win.

D. Justice Antonin Scalia penned these words when he objected to the recent Obergefell ruling, which struck down marriage discrimination against gay and lesbian Americans.

The answer is D.

I made up the rest, but they’d all be far more accurate than what Scalia said in real life.

It’s hard to think about the state of American democracy without pondering the Supreme Court. As the least democratic branch of the federal government, it’s always had outsized importance in shaping the opportunities for citizens to participate in our political institutions and social life.

Scalia
Flickr / SteveMasker

At its best, the Supreme Court has upheld the principle of “one person-one vote,” struck down whites-only party primaries, and invalidated educational apartheid. It did those important things when less enlightened views might have been more popular.

At its worst, the court has upheld poll taxes and literacy tests, okayed restrictive photo ID requirements for voting, knocked the teeth out of the Voting Rights Act, and intervened in the 2000 election to stop vote counting.

For better or worse, the Supreme Court defines the rules of engagement of American politics. So what’s at stake in the 2016 presidential race?

A whole lot.

With several justices already over 80, the next president could nominate as many as four new members of the court. Will the new justices bolster the conservatives, who favor legislative power only when it violates minority rights, or the liberals, who have demonstrated a serious commitment both to voting rights and to the legislative process?

With the plutocratic Chief Justice John Roberts and Scalia leading the way, the conservatives pose as outraged populists regarding marriage equality. They pretend, ludicrously, that they don’t believe in the court reviewing and invalidating popularly enacted laws.

What a joke. The same justices have no problem with nullifying laws that implement affirmative action, produce majority-minority legislative districts, or exclude corporations from spending money in political campaigns.

These so-called conservatives strike down almost any law that curtails the power of corporations. They just don’t like the idea of equal protection and due process applying to people.

These same so-called conservative justices have some questionable ethcal issues as well:

  • Justices Antonin Scalia and Clarence Thomas attended Koch Brothers political functions at a time when the court was considering loosening limits on corporate campaign contributions.
  • Justice Samuel Alito spoke at a fundraising dinner for the conservative American Spectator magazine, where tickets were sold for as much as $25,000 a plate.
  • Justice Thomas failed to report his wife’s income from the Heritage Foundation, even as she lobbied against the Affordable Care Act while cases worked their way to the Supreme Court. He also failed to recuse himself from ACA-related cases despite a clear conflict of interest with his wife’s work.

But here’s the principal question facing the court for the foreseeable future: Who is the Constitution for? Is it for corporations, or the rest of us?

Right-wing forces want to scrap all limits on campaign spending and contributions. They want corporations to be treated as free speech actors in elections, but they don’t want workers to have any free speech rights in the workplace.

They also embrace elaborate photo ID requirements, narrow registration laws, and endless barriers to voting for communities of color and young voters.

If a future Republican president replaces even a single liberal justice with a conservative, we could wind up with a democracy of the corporations, by the corporations, and for the corporations. Regardless of Justice Scalia’s fantasies, this is the real threat to American democracy.


Jamie Raskin is a professor of constitutional law at American University, a Maryland state senator, and a Senior Fellow at People For the American Way. He is the author of Overruling Democracy: the Supreme Court v. the American People. Distributed via OtherWords.org

Senate Confirms Friedland Nomination After Months of Delays

Upon returning from a two week recess, the Senate voted today to confirm Michelle T. Friedland to the US Court of Appeals for the 9th Circuit. Notably, Friedland is the 100th female judge confirmed under President Obama.

People For the American Way’s Executive Vice President Marge Baker released the following statement:

“Today’s confirmation is an important step towards addressing the judicial vacancy crisis on the federal bench, particularly in our Courts of Appeals, and it’s an important step towards building a more diverse judiciary. Confirming President Obama’s nominees makes our judicial system work better for Americans who depend on the courts. That’s doubly true in circuit courts which are frequently the courts of last resort for determining issues that affect American families every day.

“Senator Reid should be applauded for moving the confirmation process forward despite the GOP’s unrelenting campaign of obstruction. Since the beginning of President Obama’s administration, Senate Republicans have delayed votes and slowed down the process of filling judicial vacancies with qualified judges. Their campaign of obstruction has increased the backlog of vacancies waiting to be filled and weakened our judiciary.

“Today’s confirmation is a step in the right direction. Filling vacancies in our courts should not be a partisan issue—it should be about the American citizens whom these courts serve.”

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It’s Time to END Indefinite Detention and Close Guantanamo!

President Obama, fulfill the promise you made four years ago to close the prison at Guantánamo and end indefinite detention without charge or trial. Congress has made this task more difficult for you, but you have the authority to close Guantánamo, and you must use it. Use your authority to direct the release of the men you do not intend to try, and charge the rest in a court that meets fair-trial standards. Begin by releasing the 86 men your own administration has approved for transfer. And appoint an individual within your administration to lead the closure of Guantánamo.

Sign the Petition

Why is this important?

A grave crisis is currently unfolding at the U.S. prison in Guantánamo Bay, where escalating despair has driven most of the imprisoned men to risk their very lives to protest their indefinite detention through a peaceful, large-scale hunger strike that is entering its fourth month.

This crisis at Guantánamo cannot be divorced from the fact that the vast majority of the 166 remaining prisoners have been held for more than 11 years without any charge or trial, and with no end to their detention in sight.

In the past four years that I have spent learning about the stories of the men detained at Guantánamo, and working with my colleagues at the Center for Constitutional Rights (CCR) to shut down this notorious prison camp, I have never been as anxious. If ever there was a moment for President Obama to act upon the promise that he made four years ago to shutter the prison, it is now. He must act quickly to release the men that he does not intend to try, and charge the rest in a court that meets fair trial standards. Innocent people should not spend a decade in an American jail, only to die alone and far from home.

CCR’s client Tariq Ba Odah has said, “Freedom is more precious than any other worldly desire. And we should never give it up regardless of how expensive the price may be.” That price has been tremendous for Tariq—more than a decade of separation from his loved ones, living in solitary confinement with almost no contact with others, and the excruciating daily routine of force-feeding. He has been tube-fed through his nose for over 6 years, half as long as Guantánamo has been open. Tariq maintains that hunger-striking “is the only peaceful way I can show the magnitude of the injustice I suffer.” Tariq was sent to Guantánamo in 2002 when he was about 24 years old, and he has been detained without charge ever since. He now weighs just 90 pounds, and needs urgent, sophisticated medical care. President Obama should release Tariq back home to Yemen on humanitarian grounds.

Sign my petition to help secure justice for Tariq and for the rest of the men at Guantánamo. Sign it so this country can better live up to the best of its values.

President Obama acknowledged this week that Guantánamo needs to close because in his words it’s “inefficient” and hurtful to our “international standing.” Words are not enough. He must match his words with actions.

It is the responsibility of all people of conscience to urge President Obama to close Guantánamo, now. I hope you will join me to do so.

REFERENCES
http://ccrjustice.org/get-involved/action/GTMOHungerStrike2013
http://www.thedailybeast.com/articles/2013/04/29/obama-s-catastrophic-guantanamo-failure.html
http://tv.msnbc.com/2013/04/13/hunger-strike-at-gitmo-we-are-dying-a-slow-death-here/
http://thehill.com/blogs/congress-blog/homeland-security/294843-president-obama-must-act-to-close-guantanamo
http://blogs.reuters.com/great-debate/2013/05/01/obama-can-close-guantanamo
http://ccrjustice.org/learn-more/faqs/GTMObyTheNumbers

Bush’s Court: How the DC Circuit Threatens the Future of Progressive Reform (Updated)

— by Layne Amerikaner & Miranda Blue, PFAW, media@pfaw.org, (202) 467-4999

WASHINGTON – Four years into President Obama’s presidency, he has yet to  have a single judge confirmed to the hugely influential Court of Appeals for the D.C. Circuit. This lapse, caused initially by a slow start from the administration but perpetuated by a blockade of obstruction in the Senate, threatens to hinder progressive advances for years to come, argues a newreport from People For the American Way.

The report, AMERICA’S PROGRESS AT RISK: RESTORING BALANCE TO THE DC CIRCUIT COURT OF APPEALS, can be found here.

“The D.C. Circuit is the most important court most Americans have never heard of,” said Marge Baker, Executive Vice President of People For the American Way. “The D.C. Circuit’s judges have the final word on scores of federal laws each year, from air pollution controls to financial regulations to workers’ rights. Republicans have long understood this, and have packed the court with far-right ideologues who threaten to hold back American progress for decades to come.  And they have so far blocked confirmation of judges who would bring any balance to this court.”

President Obama is the first president since Woodrow Wilson to fail to have a single nominee confirmed to the D.C. Circuit during his first full term in office, despite the fact that four of the eleven seats on the court are now vacant. His first nominee to the court, the indisputably qualified Caitlin Halligan, was twice blocked by Senate Republicans for reasons widely recognized as spurious.

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As a result, the D.C. Circuit continues to be dominated by judges pushing a right-wing ideology long rejected by the American people. The right-wing majority of the D.C. Circuit has continuously sought to dismantle progressive efforts to defend consumers, protect public health, and ensure the rights of workers. Recent D.C. Circuit decisions highlighted in the report include:

  • Noel Canning v. NLRB:  In January, the D.C. Circuit invalidated three presidential appointments to the National Labor Relations Board, undermining the Board’s ability to protect the rights of workers and giving the green light to Senate Republicans who wish to decimate any federal agency by blocking appointees.
  • EME Homer City Generation v. EPA: In 2012, the D.C. Circuit sided with utility companies to strike down EPA air pollution regulations that would have prevented an estimated 34,000 premature deaths and saved $280 billion a year in healthcare costs.
  • Business Roundtable v. SEC: In 2011, the D.C. Circuit overturned an SEC rule requiring greater accountability from corporations to their shareholders in selecting board members. One observer noted that in doing so the judges – none of them securities experts – had “waded into a political fight under the guise of dispassionate scientific oversight.”
  • RJ Reynolds Tobacco v. FDA: Last year, the D.C. Circuit ruled that FDA regulations requiring cigarette manufacturers to place graphic, factually accurate warnings on their product violated tobacco companies’ First Amendment free speech rights.
  • Hein Hettinga v. USA: George W. Bush nominee Janice Rogers Brown used a case about milk market regulation last year to issue a call to arms against eight decades of progressive reforms. Courts that have allowed the government to implement reasonable regulations of industry have, she said, put “property…at the mercy of pillagers.”
  • “President Obama has a chance in his second term to restore ideological balance to the D.C. Circuit,” added Marge Baker. “It is critically important that he do so.

Otherwise, D.C. Circuit will continue to stand in the way of progressive reforms — reforms chosen by American voters — and threaten to roll back decades of hard-won protections for working people and consumers.”


On a side note, I called Senator Dean Heller’s office and asked for a specific answer as exactly why he voted in favor of filibustering the confirmation of Caitlin Halligan.  Once again, I got a blow-off standard “well as you know” non-specific answer (Click on the graphic at the left to read the response).  I made a second call complaining that I had asked a specific question and expected to receive a specific response.  Ten-to-one, I get another ‘doesn’t say crap’ letter or nothing at all.


March 22, 2013: The White House officially withdrew President Barack Obama’s nomination of Caitlin Halligan to serve on the D.C. Circuit Court of Appeals.  In a statement, Obama said he was “deeply disappointed” that a minority of senators had blocked Halligan’s nomination for almost two and a half years, and called the vacancies on what is arguably the country’s second-highest federal court “unacceptable.”

“Today, I accepted Caitlin Halligan’s request to withdraw as a nominee for the U.S. Court of Appeals for the District of Columbia Circuit,” Obama said in an emailed statement. “This unjustified filibuster obstructed the majority of Senators from expressing their support. I am confident that with Caitlin’s impressive qualifications and reputation, she would have served with distinction.”

The Week Ahead in Congress

In the Senate
The Senate has plans to work on at least one bill:

S 3637: Extending a federal guarantee program for banks and credit unions for two years.  According to Hill Sources, the Transaction Account Guarantee (TAG) program was created during the financial crisis of a few years ago, and financial institutions broadly support the extension. 

In the House
On Tuesday, the House will vote on a Motion to go to Conference on the National Defense Authorization Act (HR 4310), along with a Democratic Motion to Instruct Conferees.

The House could work on up to eight suspension bills:

— The Access to Congressionally Mandated Reports Act (HR 1974), which would set up a public website that would allow access to various reports mandated by Congress.

— The Eliminate Privacy Notice Confusion Act (HR 5817), which would allow banks to notify customers of data privacy policies only when those policies change.

— The Asthma Inhalers Relief Act (HR 6190), allowing the sale of all remaining Primatene Mist asthma inhalers, which were banned for sale due to environmental concerns.

— The Frank Buckles World War I Memorial Act (HR 6364), establishes a commission to ensure a suitable observance of the centennial of World War I, to designate memorials to the service of members of the United States Armed Forces in World War I, including a National World War I Memorial on the National Mall in the District of Columbia.

— The D.C. Courts and Public Defender Service Act (S 1379), amending the administrative authorities of the DC courts.

— The DART Act (S 1998)
, to improve management of the Department of Homeland Security.

— The GAO Mandates Revision Act (S 3315), easing reporting requirements of the Government Accountability Office.

— The No-Hassle Flying Act (S 3542), making it easier for airports to clear baggage from overseas.