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Supreme Court Preview Part III, Law and Order »

(The following is the third in a multi-part series on the upcoming Supreme Court Term)

The Roberts Court has been particularly aggressive in imposing its vision on the criminal law, cutting back on longstanding precedents intended to hold police accountable for constitutional violations, while simultaneously denying potentially innocent inmates the opportunity to prove their innocence.  This Term, the Court will consider issues ranging from the rights of juvenile defendants to the power of prosecutors to fabricate evidence.

• Prosecutors Fabricating Evidence, Pottawattamie County v. McGhee

In 1977, a retired police captain was murdered, and, despite substantial evidence linking another suspect to the murder, investigators eventually turned their eyes towards Terry Harrington and Curtis McGhee.  Unable to prove their case, police and prosecutors not only hid evidence linking the other suspect to the murder from Harrington and McGhee, they threatened to prosecute a witness against these two men unless he gave perjured testimony linking them to the murder.  Harrington and McGhee spent more than twenty years in prison before the Iowa Supreme Court finally tossed out their convictions.

It’s difficult to imagine a clearer violation of due process than the fabricated case against these two men, but the prosecutors believe that they have an ace in the hole:  a longstanding rule giving prosecutors sweeping immunity from lawsuits.

At its heart, this case turns upon a hypertechnical issue of whether the defendants were acting “within the scope of their prosecutorial duties” or simply as “investigators” when they fabricated evidence, but it is ultimately a case about whether government officials endowed with the awesome power to initiate prosecutions should be able to do so without legal checks on their authority.  As the Court explained over thirty years ago, the purpose of prosecutorial immunity is to shield against the possibility that “harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.”  If prosecutors can be sued by anyone for any reason, the Court believed, they may act differently to avoid harassment suits.

This is undoubtedly correct, but are the costs of such suits so great that they exceed the costs of permitting prosecutors to fabricate evidence without consequence?

• Juveniles and Life Without Parole, Graham v. Florida and Sullivan v. Florida

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Supreme Court Preview Part II, John Yoo’s Revenge? »

(The following is the second in a multi-part series on the upcoming Supreme Court Term)

Few names are more associated with the worst abuses of the Bush Administration — its callous disregard for human rights, its treatment of the Constitution as opinion, its belief that presidents, or at least conservative presidents, are really kings — than former Bush OLC deputy John Yoo.  Yet while Yoo is most famous for his at-best professionally incompetent claims that it’s legal for the United States to torture, Yoo’s first love was always limitless Presidential power.  Two cases this Term will reveal just how many of the justices share Yoo’s passion.

• Can You Figure Out If You’re A Terrorist?  Humanitarian Law Project v. Holder

One of the bedrock principles of American criminal law is that a criminal statute cannot be written in such a vague manner that a “person of ordinary intelligence” can’t figure out what it prohibits.  Individuals shouldn’t have to guess whether or not they are breaking a law; and the Executive shouldn’t be empowered by ambiguously-worded statutes that allow them to claim that virtually anyone’s actions are worthy of prosecution.

Federal law, however, prohibits anyone from knowingly providing any “service,” “training” or “expert advice or assistance” to a group designated as a terrorist organization by the State Department. A law whose language raises serious vagueness concerns.  If a terrorist leader announces that he reads the New York Times website to keep track of US politics, must the Grey Lady find a way to deny him the “service” of its reporting?  Are attorneys who defend suspected terrorists in court providing illegal “expert advice or assistance?”  One government attorney even claimed that an attorney who files an amicus brief–a brief filed by a non-party to a lawsuit to help advise the judges in their decision-making–raising a legal argument that benefits a terrorist organization is a felon.

If the Court allows this statute to stand, it will not only give its approval to a law that appears to ban Constitutionally-protected activity, it will give the Executive a virtual blank check to bring prosecutions against individuals with tenuous connections to terrorism.  Worse, should the Court do so, it could take a giant bite out of the principle that people need to be able to figure out what the law is.

• The “Unitary Executive,”Free Enterprise Fund v. Public Company Accounting Oversight Board

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Supreme Court Preview Part I, Mysteries Revealed »

(The following is the first in a multi-part series on the upcoming Supreme Court Term)

On Monday, the justices return from their summer recess to begin what could be the most momentous Supreme Court Term in recent memory.  This Term’s docket is jammed with hot button issues topics from terrorism to guns to football, as well as a number of pending cases which are likely to reveal many of the as-yet hidden views of the Court’s three newest justices:

• Federal Power: United States v. Comstock

With “tentherism” — the belief that everything from Medicare to Social Security to the federal minimum wage exceeds Congress’ constitutional power — experiencing a renaissance on the far right, the three newest justices are preparing to hear their first case concerning Congress’ authority to regulate.  Of the Court’s three longest-serving conservative justices, only Justice Thomas has tenther sympathies.  Both Justices Scalia and Kennedy recognize that the Constitution gives Congress sweeping authority to enact economic regulation — including the power to ban a substance such as cocaine or child porn from the marketplace.

Comstock, however, may tempt the court’s conservatives to take a bite out of Congress’ power.  Federal law permits the continued detention of “sexually dangerous” federal prisoners, even after those inmates have served the original sentence which placed them in federal prison.  Graydon Comstock, who is now challenging this law, was convicted of possessing child porn.  The only question is whether his time in federal custody can now be extended because the original law authorizing his imprisonment is constitutional, or whether the law authorizing his continued detention is an impermissible noneconomic regulation similar to a federal ban on violence against women that the Court’s conservatives struck down in 2000.

To be clear, the Court is not considering whether Comstock’s own rights are violated by a law that detains him even after his sentence is complete, the only issue here is whether the Court will recognize a new limit on Congress’ power to regulate.  If they do, especially if the new limit is far-reaching, tenthers will gain a new weapon in their war against the federal government.

• Guns and the States: McDonald v. City of Chicago

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SCOTUS Poised To End Meaningful Campaign Finance Regulation

Last Term, the Supreme Court took the unusual step of leaving a case on its docket undecided.  Rather than answer the narrow question presented in Citizens United v. FEC – whether a 90 minute film attacking former presidential candidate Hillary Rodham Clinton is subject to campaign finance laws — the justices instead ordered the parties to brief whether longstanding restrictions on corporate money in politics should be declared unconstitutional.  Today, the Court reheard Citizens United in a rare September sitting.

Early reports suggest that, true to form, the Court’s five conservatives are now poised to open the floodgates to unlimited corporate money in U.S. politics.  Justices Scalia, Kennedy and Thomas are already on record claiming that campaign finance reform violates the Constitution; and while Chief Justice Roberts and Justice Alito have not previously weighed in on this specific question, both of the Court’s newest conservatives towed predictably pro-corporate lines at today’s argument.  Although it’s likely that the Court will not completely eliminate all campaign regulation, the system that they leave in place will probably do little to keep United Health and AETNA, for example, from spending billions to defeat supporters of health reform in 2010 and 2012.

Presently, campaign finance law draws a distinction between “independent” campaign expenditures — such as money which funds attack ads that aren’t authorized by or coordinated with a campaign — and direct donations to a candidate.  Significantly, in its order asking the parties to rebrief Citizens United, the Court asked whether Austin v. Michigan Chamber of Commerce, a case upholding bans on “independent” corporate expenditures, should be overruled, but it did not mention the century-old ban on direct campaign donations by corporations.  Accordingly, it is most likely that the Court will overrule Austin but leave the longstanding ban on direct contributions in place.

The intellectual framework  for this distinction rests on a frankly naive understanding of independent contributions as incapable of influencing politicians’ actions.  Historically, campaign finance regulation has been justified under the First Amendment because of the government’s compelling need to prevent either the reality or the appearance that politicians’ votes are driven solely by which interests are willing to write them the biggest check.  Conservatives have long maintained that independent contributions do not raise the specter of bribery, however, because the donor never actually interacts with the candidate or the campaign.  Apparently, in Justice Kennedy’s America, George W. Bush was incapable of figuring out who funded Swift Boat Veterans for Truth.

Moreover, preventing bribery is only one small part of an effective campaign finance scheme.  In 2005, for example, a Bush DOJ political appointee saved the tobacco industry $120 billion by secretly altering a court document to reduce the award the federal government was seeking in a lawsuit, but there is no indication that the industry bribed anyone to get the document altered.  Rather, Bush Administration officials sincerely believed that corporations should not be accountable for their actions, and their governed with these values in mind.  In 2010, and 2012, it should be easy for the tobacco industry to find similarly-minded candidates to throw their massive treasuries behind.

Ultimately, these massive treasuries are the problem with the Roberts Court’s likely decision in Citizens United.  Unlike actual human beings, corporations can exist forever and amass hundreds of billions of dollars in the process.  With such awesome resources at their hands, the record-breaking $745 million President Obama raised in his election campaign becomes quaint.  Indeed, if the Court opens the flood-gates on independent corporate campaign expenditures, actual spending by campaigns (and small donations by ordinary Americans) could become irrelevant, drowned out by a sea of corporate cash.

Top Texas Judge On Trial For Blocking Stay of Execution

On September 25, 2007, the morning of the day Michael Wayne Richard was scheduled to die by lethal injection, the U.S. Supreme Court announced that it would stay another lethal injection until it decided a case challenging the use of the execution practice altogether.  Richard’s attorneys began frantically drafting motions to delay his execution as well.

Although the Supreme Court eventually halted lethal injections nationwide while its case on the matter was pending, Richard was executed after Texas’ highest criminal judge allegedly blocked his attorneys from seeking relief in her court.  Now, Judge Sharon Keller, Presiding Judge of the Texas Court of Criminal Appeals, could lose her job for intentionally denying a death row inmate access to the court system.

In a judicial misconduct proceeding similar to the one which removed Alabama Chief Justice Roy Moore from office, Keller is accused of intentionally deceiving Richard’s attorneys to prevent them from seeking a stay of execution.  At 4:45pm on the day of Richard’s execution, his attorneys asked the court if they could file the documents after the clerk’s office closed at 5pm.  Judge Keller told court staff to relay a message that the clerk’s office would close at 5.  Although literally true, Keller’s message concealed the fact that a member of the court was on duty to hear emergency after-hours motions–had the attorneys known this, they would have filed the as yet incomplete motion.

Although it is unlikely that Keller’s court would have granted a stay of execution her actions also prevented the U.S. Supreme Court from granting such a stay.  As a general rule, the Supremes will not hear a case unless the person seeking relief first appeals to the appropriate lower courts.  Moreover, the Richard incident is only the latest black-eye for the state with the nation’s most frequently used death chambers.  Although the Supreme Court hears less than seventy cases in a given Term, it recently blocked four Texas executions in a single Term.

Although much of the blame for Texas’ frequent and often-unjustified death sentences rests with state lawmakers, the Texas courts deserve a fair chunk as well.  Judge Keller’s Court of Criminal Appeals has been labeled the “worst court in Texas” for disregarding DNA evidence, tolerating confessions extracted by the threat of torture and ignoring outright malpractice by criminal defense attorneys.  In one instance, the court disregarded such an overwhelming weight of evidence proving a man to be innocent that its decision inspired a pardon by then-Governor George W. Bush.

Nor is Keller the only person of questionable fitness to have sat on the state’s highest criminal court.  In 1994, Texans elected a unknown lawyer of little distinction named Stephen Mansfield to the Court of Criminal Appeals.  Judge Mansfield lied about his qualifications on the campaign trial, claiming, falsely that he was an experienced criminal attorney and hiding the fact that he was once cited for practicing law without a license; and he campaigned on an explicit promise to execute more prisoners if elected.  He was not reelected in 2000, but only after he was convicted of illegally scalping tickets during his tenure as a sitting judge.

Normally when justice breaks down at the state level, federal courts are trusted to fill the gap by granting habeas relief to the wrongfully convicted and excessively sentenced.  Texans, however, must seek justice from the ultra-conservative Fifth Circuit, a court which once upheld the conviction and death sentence of a man whose attorney slept through his trial (to it’s credit, the Fifth Circuit eventually reversed this decision after months of criticism).

So Texas’ criminal judiciary has, for years, been dominated by a bench of kneejerk conservatives with little if any adult supervision.  Hopefully, Judge Keller’s trial will remind them that they can’t ignore the law forever.

Court Deals Important Blow To Corporate Immunity

The Chamber of Commerce, and the corporate interests it represents, is engaged in a wildly successful litigation strategy to immunize corporations from the law.  Indeed, as the Wonk Room has previously explained, the Supreme Court has embraced the health insurance industry’s claim that employer-provided health plans should be completely immune from accountability when their wrongful coverage decisions injure or kill a patient.  It has shielded dangerous medical device manufacturers from accountability when their defective products cause injury or death.  And it has even allowed the corporate sector to force consumers and employees into biased, privatized courts that overwhelmingly favor corporate parties.

One of the sharpest arrows in the corporate immunity campaign’s quiver has been a doctrine known as “preemption.”  Because the Constitution says that federal law is the “supreme Law of the Land,” Congress has the power to enact laws which “preempt” state laws that conflict with its intended goals.  A law preempted by Congress essentially ceases to function.

Although Congress’ power to preempt state laws is uncontroversial, corporate interests increasingly call on courts to misread federal laws to preempt progressive state statutes and tort law which they do not want to be bound by.  In the 1970s, for example, a contraceptive device known as the Dalkon Shield caused numerous infections and deaths, and Congress responded by requiring the FDA to approve new medical devices.  Even though Congress enacted this law to protect consumers from dangerous devices, the Supreme Court turned this intent on its head, providing almost-total lawsuit immunity to the medical device industry.

A decision handed down this Wednesday by the United States Court of Appeals for the Third Circuit, however, is a welcome sign that the judiciary’s willingness to immunize corporations from the law is not boundless.  In that case, Snapple was sued for labeling their beverages as “all natural,” despite the fact that the beverages contain high fructose corn syrup (Snapple, to its credit, discontinued its use of HFCS in late 2008).  Rather than defend its case on the merits–such as by arguing that HFCS is actually a “natural” ingredient–however, Snapple decided first to claim that it was completely immune from the suit because of preemption.

Essentially, Snapple claimed that, because federal law regulates food labels, it can’t possibly be the case that states also get to enact laws.  Like the medical device manufacturers who convinced the Supreme Court that the existence of the FDA precludes state laws governing similar matters, Snapple claimed that the FDA sets both a floor and a ceiling for regulation, and states lack authority to impose additional requirements on the beverage industry.

In rejecting this claim, the Third Circuit stood up for the important principle that federal law should presumptively be viewed only as a floor, and not as a ceiling to more progressive state regulation.  As Justice Louis Brandeis explained many decades ago, the purpose of the states is to function as a “laboratory” for new ideas which can be experimented with by one of fifty state governments and then applied more broadly if they turn out well for that state’s citizens.  Many of the laws progressives cherish, including the minimum wage and much of our federal environmental standards, were first conceived of by state legislatures.  If you take away the states’ power to enact new progressive reforms, you kill this process of experimentation in the cradle.

Corporate interests get this, which is why they have worked to hard to keep the states from enacting progressive reforms that can blossom and grow throughout the United States.  Hopefully, this week’s Snapple decision is an early sign that the courts are no longer interested in  preventing state innovation.

Health Care Opponents Make Up Supreme Court Case To Attack Obama

Opponents of health reform have added a new trick to their bag of fear-tactics: pretend that the White House is violating the First Amendment.  After the White House sent an e-mail to the President’s supporters asking them to pass along right-wing e-mail forwards that make false claims about health reform — so that the White House can set up a fightthesmears.com-style response to these claims — Senator John Cornyn (R-TX) sent a breathless letter to the President accusing him of violating “the First Amendment and America’s tradition of free speech and public discourse.”  By the end of the day, right-wing media exploded with claims that President Obama launched this plan to gather the names of the President’s opponents; former Speaker Newt Gingrich even compared the White House’s fight-the-smears strategy to the Alien and Sedition Acts.

By Thursday afternoon, Fox News even invented a made-up case saying that the President’s actions are unconstitutional:

It’s absolutely unconstitutional, I mean, the Supreme Court has ruled directly on point. When Richard Nixon was worried about anti-war protestors during the Vietnam era, he sent FBI agents undercover—CIA agents undercover—which was against the law for them to be operating in the US. And military in civilian garb to take photographs and to use tape recorders to record the voice, and they sued; it’s a very famous case. And the Supreme Court said . . . . the government is prohibited from intimidating people from exercising free speech, and recording their names or their voices, or asking people to spy on them would be exactly the intimidation the Supreme Court condemned.

Watch it:

We are unable to find a single Supreme Court case fitting this description, and several legal scholars whom the Wonk Room contacted were unable to identify such a case.  Although there is one Nixon-era precedent dealing with soldiers spying on left-leaning organizations, that case did not say what Fox says that it said.

In Laird v. Tatum, the plaintiff challenged the Army’s practice of sending undercover intelligence agents to attend meetings that were open to the public, and gather information such as the names of the speakers and the number of attendees.  The justices, however, never even reached the merits of the case because the plaintiff never showed that “he has sustained or is immediately in danger of sustaining a direct injury as the result of” the Army’s program.

So President Obama’s fight-the-smears campaign is all kinds of illegal, just so long as you live in the Neighborhood of Make Believe.  Maybe next week, Fox and Senator Cornyn will claim that health care reform will drive up costs for unicorns and goblins.

Kyl Falsely Accuses Sotomayor Of Perjury

During Judge Sotomayor’s confirmation hearing, conservatives repeatly made the false claim that she believes that U.S. law is governed by foreign courts.  In a Senate floor speech yesterday, however, Senator Jon Kyl (R-AZ) doubled down on this lie, audaciously accusing Sotomayor of perjuring herself before the Judiciary Committee:

“Later in her hearing, Judge Sotomayor gave the following testimony: ‘I will not use foreign law to interpret the Constitution or American statues. I will use American law, constitutional law to interpret those laws except in the situations where American law directs the court.’ While this kind of declarative statement would normally provide some measure of comfort, it is belied by words Judge Sotomayor uttered less than three months ago, that judges were ‘commanded’ to look to ‘persuasive’ sources, including foreign law, in interpreting our own law. And it is even inconsistent with an exchange Judge Sotomayor had with Senator Schumer earlier in the hearing, in which she agreed that foreign law could be used for the same purposes as traditional interpretive tools, such as dictionaries.

“It gives me great pause that Judge Sotomayor could say one thing at a public speech earlier this year and say the opposite while under oath before the Judiciary Committee, especially since she never repudiated her speech.

No one, including Judge Sotomayor, actually believes that an American judge is bound by foreign decisions, and Kyl is simply lying when he claims that she does believe this.  One of the first things that any lawyer learns in law school is that not all citations are created equal, and so when a judge cites to one source or another they are not necessarily saying that this source is controlling law.  Conservative Justice Antonin Scalia recently cited to the Talmud in a judicial opinion, and a Seventh Circuit judge once cited hip hop artist Ludacris, but no one thinks that Scalia believes we should be ruled by unelected Rabbis, or that Seventh Circuit Judge Terence Evans believes that U.S. law is governed by unelected rappers.

As a general rule, citations to binding case law, statutes, regulations and the like are generally referred to as cites to “mandatory” authority, because they rely on legally binding materials that judges have no choice but to follow.  Other citations, to law review articles or holy texts or non-binding caselaw, are known as “persuasive” authority.  So when Sotomayor referred to foreign law as “persuasive” she was saying the exact opposite of what Kyl accuses her of.  “Persuasive” is the legal word for a citation to something that is not controlling law, and when Judge Sotomayor states that she relies on persuasive authority, she is endorsing a practice used by literally every member of the United States Supreme Court and taught to every single lawyer in the country.

Indeed, the difference between mandatory and persuasive authority is so basic, most law students are taught this distinction in their first few weeks of law school.  In light of the fact that Senator Kyl spent many years as a litigator before entering politics, it simply defies belief that he would not be aware of this distinction.  If Kyl actually believed that a judge’s citation to a persuasive source like foreign law indicates that they believe foreign law is binding, mandatory authority, it is unlikely he would have made it this far in his career without being disbarred.

Sadly, however, there is a narrow band of Kyl’s conservative base that gets charged up by false claims that liberals can’t wait to transform America into France.  In Kyl’s world, keeping these nuts fired up is apparently much more important than the truth.

Bill Would Restore Accountability To Companies Who Enable Fraud

For the second time in as many weeks, Senator Arlen Specter (D-PA) has introduced legislation to overturn a Supreme Court decision that immunized corporations from accountability for their illegal acts.  Specter’s bill would strike down Stoneridge Investment Partners v. Scientific-Atlanta, which held that companies who enable other corporations to cook their books are immune from federal law banning securities fraud.

Stoneridge involved an elaborate scheme which a cable company called Charter Communications allegedly set up to trick investors into believing that its cash flow was much higher than it actually was.  As the Supreme Court explained the scheme:

Respondents [Scientific-Atlanta and Motorola] supplied Charter with the digital cable converter (set top) boxes that Charter furnished to its customers. Charter arranged to overpay respondents $20 for each set top box it purchased until the end of the year, with the understanding that respondents would return the overpayment by purchasing advertising from Charter. The transactions, it is alleged, had no economic substance; but, because Charter would then record the advertising purchases as revenue and capitalize its purchase of the set top boxes, in violation of generally accepted accounting principles, the transactions would enable Charter to fool its auditor into approving a financial statement showing it met projected revenue and operating cash flow numbers.Respondents agreed to the arrangement.

So Scientific-Atlanta and Motorola, agreed to overcharge Charter for an asset that Charter’s books would value at the inflated price, and also to overpay for advertising with revenues that Charter could account for as sales.  The result was a ledger which inflated Charter’s paper value without actually requiring Charter to earn any more money.

This kind of deception is illegal under federal securities law because it fools investors into investing in a company which is far less sound than its books suggest.  Stoneridge, however, held that companies which assist other companies in defrauding their investors are immune from private suits.  Considering that many companies who engage in Enron-style tricks do so because they are trying to hide their impending collapse, if more solvent companies who enable fraud are not accountable under the law investors are left with no one to seek compensation from when their stock becomes worthless.

Specter’s bill would fix this problem by allowing suits against anyone who provides “substantial assistance” to a company which defrauds its investors.  Hopefully, bills like this one will not only become law, but they will send a clear message to the Supreme Court to stop holding that corporate interests are immune from the law.

NRA Loses Its Best Argument Against Sotomayor

Recently, the NRA announced that it would “score” the Sotomayor vote in determining where each lawmaker stands on the NRA’s pro-gun agenda, a curious decision since Judge Sotomayor’s entire record on the Second Amendment is consistent with mandatory Supreme Court precedent.  Since then, the NRA launched a smear campaign against the judge, accusing her of “deliberately misread[ing] Supreme Court precedent” in order to undermine the NRA’s pet issue.

The reality, of course, couldn’t be further from the truth.  Even a Seventh Circuit panel, which was dominated by ultra-conservative Judges Richard Posner and Frank Easterbrook, sided with Sotomayor–agreeing that only the Supreme Court has the power to overrule its longstanding precedent holding that the Second Amendment does not apply to the states.

Nevertheless, there was one outlier court, the Ninth Circuit, which had disagreed with Sotomayor’s decision and claimed that it possessed the unilateral authority to act contrary to the Supreme Court’s longstanding rule.  That case, Nordyke v. King, was the centerpiece of the NRA’s claim that Sotomayor somehow misread the law.  There’s only one problem for the NRA, as of today Nordyke no longer exists.

This is because the Ninth Circuit announced that they will hear Nordyke “en banc,” meaning that the case will be reheared by a larger panel of judges than the original three-judge panel which initally decided that case.  En banc rehearings also have the automatic effect of vacating the original panel’s decision–casting that panel opinion aside as if it no longer existed.

Of course, it’s impossible to know for certain what the en banc panel will do after it hears the case, especially because the Ninth Circuit’s own rules add a bit of a chaos factor to the analysis.  Typically, when a court of appeals agrees to hear a case en banc, every active judge on the court participates in the decsision.  Because the Ninth Circuit has more than two dozen active judges, however, en banc panels in that circuit normally only include eleven randomly selected judges.  Accordingly, even if only six of the Court’s twenty-seven judges agree with the NRA, it is mathematically possible for an en banc panel to take the NRA’s view of Nordyke.

Nevertheless, because an en banc panel is only called when a majority of the court’s active judges agree to reconsider a case, the overwhelming majority of en banc decisions disagree with those of the three judge panel.  In other words, it is more likely than not that the Ninth Circuit will reach the exact same result Judge Sotomayor did; and the NRA’s case against Sotomayor will lose it’s only half-decent argument forever.

Leahy Calls For Action On Stalled Legal Nominees

There is “no excuse” for fact that conservatives are stalling many of President Obama’s top legal nominees, said Senate Judiciary Chair Pat Leahy (D-VT) at a committee hearing today.  Not one of President Obama’s judicial nominees has been confirmed by the Senate, and the nominees awaiting a floor vote include:

[F]our nominees for top Justice Department jobs, the nominee to chair the U.S. Sentencing Commission, and nominees for the U.S. Courts of Appeal for the 2nd, 4th, and 7th Circuits. . . .  Some of the nominees, such as Dawn Johnsen to head the Justice Department’s Office of Legal Counsel, have drawn threats of filibusters from Republicans. But others, including Thomas Perez to lead the Justice Department’s Civil Rights Division, are largely non-controversial. In all cases, senators haven’t come to agreement to bring them to a vote.

Much of the right’s motivation for obstructing these nominees can be summed up in two words:  floor time.  Absent unanimous consent from all senators, no issue may be considered by the full Senate unless it is given time on the Senate floor for debate. Although such a debate can be cut off by a cloture motion — a vote receiving the support of 60 senators — such a motion itself consumes floor time. Thus, by indiscriminately objecting to President Obama’s nominees, a single senator can effectively force the Majority to choose between confirming essential government personnel or advancing health care reform, cap and trade, the federal budget or anything else on the Senate’s agenda.

But right-wing hopes that Obama will fail only partially explain conservatives’ strategy to keep the President’s nominees off the federal bench.  In truth, the far right has rallied behind seizing the judiciary to accomplish right-wing ends ever since they began dotting the South with “Impeach Earl Warren” billboards to protest desegregation.  More recently, the Republican-controlled Judiciary Committee gave a single senator authority to obstruct any one of President Clinton’s nominees–a power segregationist Senator Jesse Helms (R-NC) used to block every single nominee from North Carolina.

During George W. Bush’s Presidency, however, the right hummed a different tune.  Suddenly, senators lost their power to veto nominees, and battering-ram tactics like the “Ginsburg Rule” and the “Nuclear Option” entered the political lexicon.  With a rubber-stamp Senate in his corner, President Bush confirmed some of the worst federal judges since the Hoover Administration; judges like Janice Rogers Brown, who believes that the New Deal is unconstitutional and the Social Security is “cannibalism;” Jeffery Sutton, who devoted much of his career to attacking Medicaid and immunizing state employers from civil rights law; and J. Leon Holmes, who once wrote that a “wife is to subordinate herself to her husband” and “place herself under the authority of the man.”

Moreover, conservatives have long understood the need to appoint young, up-and-coming attorneys to the courts in order to create a deep bench of future Supreme Court nominees.  So far, the average age of President Obama’s nominees is 55, five years older, on average, than the men and women given lifetime appointments by George W. Bush, and most of the names on Bush II’s “short list” of potential SCOTUS nominees were nominated by Reagan or Bush I when the nominees were in their 30s or early 40s.

In other words, the right has long followed a strategy of easing their own judges through the Senate, bottling up progressive nominees, and making sure that their team simply outlives ours.  The result is a judiciary that is both dominated by conservatives and free to impose a radical vision on the law.  If this trend is ever going to be reversed, the Senate needs to take up Leahy’s call to confirm Obama’s nominees right away.

Momentum Builds For New Civil Rights Act, But Will Congress Be Aggressive Enough?

The last Supreme Court Term was a disaster for the American worker, with workplace anti-discrimination law taking an especially hard beating since the Court convened last October.  The good news, however, is that momentum is building for a Lilly Ledbetter-like Congressional override of one of the Court’s most egregious recent decisions, Gross v. FBL Financial Services.

In Gross, the Court not only stripped many older Americans of their right to be free from age discrimination in the workplace; it thumbed its nose at a 20 year-old precedent protecting workers from employment discrimination, explaining itself simply by saying that “it is far from clear that the Court would have the same approach were it to consider the question today in the first instance.” Translation: the right-wing controls the Court now, so they’ll do whatever they want.

Shortly after Gross was handed down, Senate Judiciary Chair Pat Leahy (D-VT) criticized it for “disregard[ing] and ignor[ing] the plain reading and common understanding” of the Age Discrimination in Employment Act.  House Education and Labor Committee Chair George Miller (D-CA) went even further, promising to hold hearings on whether Congress should overrule Gross.  Last week, a news site for corporate attorneys warned that a Gross override could be in the pipe.

Although health care and the Sotomayor nomination are currently monopolizing Congress’ attention, there is no good reason why a Gross override shouldn’t be an easy lift in the coming year–especially because the economic downturn has created an unexpected constituency for a Gross override: senior corporate executives.  With profits shrinking, many businesses are looking to cut their most expensive workers–generally their oldest and most experienced employees–possibly replacing them with younger, cheaper faces.  Thus, Gross creates the unusual circumstance where wealthy, powerful businessmen and women are lined up against their employers and their employers’ lobbyists, and thus can provide a heavy counterweight to corporate America’s inevitable efforts to keep Gross alive.

But even if the stars are aligning against one of the Court’s most ill-considered and arrogant recent decisions, the real question is whether Congress has the courage to think bolder.  Last Term alone, the Court handed down four major decisions cutting back on civil rights in the workplace, if Gross is the only case on the chopping block, that sends a clear message to the Roberts Court that its right-wing agenda will succeed 75% of the time–and that’s just within the past year.  Simply overriding Gross does nothing to correct the backlog of wrongly-decided cases handed down during the last several decades of conservative rule.

Rather than take a single potshot at a single bad decision, Congress should consider something in the vein of Senator Edward Kennedy (D-MA) and Rep. John Lewis’ (D-GA) Civil Rights Act of 2008, which would roll back nearly a decade of inexcusable Supreme Court decisions–decisions which left many recipients of federal funds free to engage in discrimination, immunized state employers from accountability for age discrimination, and allow employers to force their employees into a secretive, privatized justice system that overwhelming favors corporations.

It’s unquestionably good news that Congress is setting the wheels in motion to overturn Gross, but the American people must not be satisfied with a single drop-in-the-bucket.  The Court declared war on civil rights a long time ago, and Congress simply doesn’t have time to clean up the justices’ mess one piece at a time.

The Biggest Supreme Court Case You’ve Never Heard Of

The judiciary has long been the go-to branch for corporations who don’t think they should have to follow the same laws as everyone else.  How else could health insurers achieve near total immunity from the law?  How else could employers strip women of their abilty to fight back against pay discrimination, and how else could the corporate sector create a biased system of corporate-owned courts that are virtually guarenteed to rule against consumers and employees?  No lawmaker could expect to remain in office if they endorsed such policies, but the Supreme Court, apparently, is shameless.

One big reason that the Court can give corporations such massive giveaways is because their work is buried in complex doctrines and legalese.  Voters would rebel against a bill which gave medical device makers total immunity from the law when their defective products kill someone, but when Justice Scalia writes that “the pre-emption clause enacted in the Medical Device Amendments of 1976, bars common-law claims challenging the safety and effectiveness of a medical device given premarket approval by the Food and Drug Administration (FDA),” most Americans don’t realize that he’s given the medical device immunity exactly the same immunity.

The mother of all the Supreme Court’s corporate-immunity-through-obfuscation cases may be this year’s decision in Ashcroft v. Iqbal.  Traditionally, the justices were very reluctant to kick people out of Court before they have the opportunity to at least gather evidence. Thanks to Iqbal, however, plaintiffs now must jump through a new, potentially insurmountable hoop before they can even seek evidence from their opponent.  As the New York Times explains:

For more than half a century, it has been clear that all a plaintiff had to do to start a lawsuit was to file what the rules call “a short and plain statement of the claim” in a document called a complaint. Having filed such a bare-bones complaint, plaintiffs were entitled to force defendants to open their files and submit to questioning under oath. . . .

The Iqbal decision now requires plaintiffs to come forward with concrete facts at the outset, and it instructs lower court judges to dismiss lawsuits that strike them as implausible.

“Determining whether a complaint states a plausible claim for relief,” Justice Anthony M. Kennedy wrote for the five-justice majority, “requires the reviewing court to draw on its judicial experience and common sense.”

Note those words: Plausible. Common sense.

Our readers who spent the Sotomayor hearings listening to progressives and conservatives alike claim that a judge’s duty is simply to follow the law will immediately see the problem with Kennedy’s standard; what on earth is “the law” when judges are told simply to obey their “common sense?”

The practical impact of Iqbal is that judges now have sweeping discretion to get rid of lawsuits simply because they don’t like them.  Moreover, because the federal bench dominated by conservatives–including George W. Bush’s judges, “the most conservative on record“–the rule in Iqbal grants conservatives even more authority than they already possess to substitute their personnal views for the merits of a plaintiff’s case.

To his credit, Senator Arlen Specter (D-PA) has introduced a bill which would overturn Iqbal and restore the old rule.  Until such a bill passes, however, powerful interest groups won’t have to argue the law to keep plaintiffs out of court; they’ll simply need to appeal to our right-wing judiciary’s sense of “common sense.”

Report: Legal Needs Of The Poor Unmet Over 80% Of The Time

The law does not enforce itself.  Americans entitled to health care or Social Security benefits depend on hearings and lawsuits to ensure that wrongfully denied benefits are paid.  Tenants who are abused by their landlords rely on courts to keep those landlords in line.  Corporations have no incentive to comply with laws protecting consumers unless they can be sued into compliance (which is exactly why they fight so hard to immunize themself from lawsuits. )

Moreover, as the Supreme Court recognized more than 75 years ago, “[e]ven the intelligent and educated layman has small and sometimes no skill in the science of law,” so such laymen cannot stand up for their own rights without a lawyer in their corner.  According to a report by the Center for Law and Social Policy (CLASP), however, “less than 20 percent of the legal needs of low-income Americans” are currently being met.  A void which effectively creates a law-free zone around millions of Americans.

As the report explains, the United States invests far less in legal services for the poor than other Western industrialized nations.  At the low end, Germany and Finland spent three times as much of their gross domestic product as we do on civil legal services for the poor.  At the high end, England outspends the United States twelve times.

Federal lawmakers deserve much of the blame for this state of affairs.  When President Reagan was elected in 1980, legal services achieved the modest goal of providing two attorneys for every 10,000 poor people in a given area.  Since then, the budget for legal services was slashed twice–first by President Reagan in 1982 and again by the right-wing Congress in 1996–and the federal government now spends, in inflation adjusted dollars, less than half what it spent on legal services for the poor in 1980.  To his credit, President Obama proposed a $45 million–or 15%–increase to federal funding for legal services in 2010, but this is merely a fraction of what is necessary to close the gap.

States and other sources provide significant funding for legal services as well, but one of the most important sources of funding for low-income legal services could be in jeopardy from the Roberts Court.

Presently, state-run programs known as “IOLTA” provide hundreds of millions of dollars a year to legal services programs nationwide.  In the 1990s, however, a right-wing legal organization known as the Washington Legal Foundation brought the audacious claim that this funding mechnism violates the Constitution.  Although the Supreme Court eventually upheld the IOLTA programs, the decision was 5-4, with Justice Sandra Day O’Connor casting the key fifth vote.  Ever since O’Connor was replaced by right-wing Justice Samuel Alito, the Roberts Court has made it its mission to seek out and destroy progressive 5-4 decisions where she was in the majority–so the IOLTA case could shortly be in their crosshairs.

Even with the IOLTA funds, however, the CLASP report makes clear that the poor have woefully inadequate access to counsel; and without such access many will be denied the rights and benefits the law entitles them to.  If Congress truly intends the laws it enacted to protect the poor to mean something, it will address this problem post haste.