The Wonk Room

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.

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.

The Battle Between Small Donors And Big Spenders »

Our guest blogger is Lisa Gilbert, a Democracy Advocate for U.S. PIRG.

Do corporate special interests really have too little power in America? Does it seem like the electoral playing field is slanted against them?

Unbelievably, that’s the question the U.S. Supreme Court will take up this fall. In fact, the justices considered it so important that they cut their vacations short by a month to deliberate.

According to the most recent data from the nonpartisan Center for Responsive Politics, oil and gas related PACs and individuals gave $35 million to 2008 congressional candidates, insurance interests gave $46 million, and securities firms gave a whopping $156 million. Tom Donahue of the U.S. Chamber of Commerce recently pledged to spend $100 million in order to fight lawmakers’ efforts to rein in Wall Street excesses, curb global warming pollution and reform health care.

However, in spite of this type of big spending, this September, the Supreme Court will rehear Citizens United V. FEC to determine if corporate money should have still further influence on our political system. In fact, determining whether the Court’s past rulings on campaign finance reform should be thrown aside will be one of Justice Sonia Sotomayor’s first tasks – “a potentially monumental decision that could reverse a century of congressional restrictions on election spending.”

The case concerns a documentary targeting Hillary Clinton’s presidential campaign, produced by a non-profit group called Citizens United. The group used corporate treasury funds to make the film and wished to air it right before the primary elections on cable TV, in violation of the longstanding ban on corporate contributions to federal campaigns.

By coming back early to rehear this case, it is clear that activist judges on the Court are considering rolling back decades of established law limiting corporate spending in elections. At stake is whether corporations will be able to spend unlimited funds to impact elections, and whether this ability will allow them to influence candidates for office with millions of dollars in advertisements opposing or supporting their races. More »« Less

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.

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.”

What Skip The Professor Teaches Us About Frank The Firefighter

Despite a week of race-baiting assaults by conservatives on the Senate Judiciary Committee, Judge Sotomayor emerged more-or-less unscathed from her confirmation hearings–even picking up several Republican votes in the immediate aftermath.  For all of their claims that Sotomayor thumbed her nose at white firefighters like Frank Ricci, the only thing to emerge from Sotomayor’s hearing is that she follows the law–as she did in the Ricci case–even when that law isn’t particularly popular.

Yet, even as the American people warmed to Sotomayor last week, the fact remains that her court’s decision in Ricci is unpopular.  Conservatives failed to convince the country that Sotomayor should have ignored a binding precedent in Ricci simply because they don’t like that precedent, but the tale of a dyslexic firefighter studying hard to earn a promotion resonated with many Americans.  So while Ricci’s story won’t hurt Sotomayor, many on the right–including the Judiciary Committee’s Ranking Member and much of the Supreme Court–are taking the long view, convinced that they can use this story to fulfill their decades-long quest to dismantle civil rights law.

This is why the recent, unjustified arrest of Professor Henry Louis Gates is such a huge blow to the right-wing agenda.  The right’s narative on Ricci fails if people simply believe that Frank Ricci was mistreated.  To succeed, the right must convince the country that Ricci’s tale is part of a pattern, that white men are routinely left with the short end of the stick, and that federal civil rights law is responsible for such perceived injustices.  The centerpiece of their narative is a belief that racism no longer exists, so laws designed to correct racism do nothing more than take potshots at white folks.

Professor Gates’ story gives this narative the lie.  White Americans–especially affulent white Americans–hear Gates’ story and they can’t imagine being arrested for breaking into their own home after giving police an ID card proving that they live there.  Such an arrest is so beyond the experience of American white men that we are forced to wonder whether a well-to-do, internationally-respected scholar could possibly have been treated the same way if he happened to be white.

Once one accepts that racism still plagues this country, the right-wing attack on civil rights law breaks down.  Contrary to the right’s claims, nothing in federal law requires employers to prefer mediocre minorities over qualified whites–indeed, such a law would unquestionably violate a long line of Supreme Court precedents interpreting the Constitution’s guarentee of Equal Protection.

What federal law does forbid is racism which pretends to be something else, such as a hiring test designed to disadvantage minority applicants or a screening process that “coincidentally” preferences applicants from predominantly white schools or communities.  Under existing law, employers may use hiring practices that have an adverse impact on minorities so long as minority applicants are screened because of their fitness for the job.  Only employers who base their hiring decisions on arbitrary or irrelevant traits can be liable for discrimination.

So civil rights law stands for the bizarre idea that people should actually be hired because of their fitness for a job, a principle which is so eminently sensible that it can only be attacked by selling America on the lie that racism no longer exists.  Professor Gates’ arrest reveals that lie for what it is, the latest interation of the right’s discomfort with civil rights.

Sotomayor Hearing Live-Blog, Day 4 »

This week, the Wonk Room will live blog Judge Sonia Sotomayor’s confirmation hearings.  Yesterday, Senate conservatives mostly repeated the same tired attacks that failed to gain traction earlier in the week, apparently thinking they could do the same thing over and over again and expect a different result.  As Sotomayor’s time in the hotseat comes to an end today, we’ll see if her opponents have actually figured out something new to say.  We will be updating this thread throughout the day.

6:37: Apparently, while your humble blogger was prepping for a radio interview, John McGinnis, a right-wing law professor railed against citing foreign law because it is just as unacceptable as citing the Bible or the Koran in an opinion.  Do we really need to make the same joke about Scalia, the Talmud and unelected Rabbis again?

4:07: Your humble blogger needs to step away for a moment.  Let him know what he misses.

4:01: Interesting exchange between Specter and the firefighters.  Specter asks the firefighters if they doubt Sotomayor’s good faith, both say that they are not lawyers and have no insight into that question, they simply testified because they were invited to tell their stories and they wanted to tell them.

3:58: Hatch is dwelling on the dead horse claim that all nine justices disagreed with Sotomayor in Ricci.

3:43: Klobuchar and Specter get in a politeness war over

3:40: Graham to Ricci: we are one generation removed from a time when the color of your skin and your last name were the only thing that mattered when you tried to get a job.  Now we are trying to find balance.

3:37: Lindsay Graham (!) pushes back against Chavez’s claim that Sotomayor has a record of racial politics, noting that the ABA reached a different conclusion.  Also notes that Republicans frequently pick people for political jobs because they are minorities, adding that doing so is just “good politics.”

3:32: Morgenthau (who is white) notes that he was a founding board member of PRLDEF.

3:24: CBS: “Sotomayor Confirmation a Done Deal“

3:22: Sessions: “It’s not like anyone is opposed to the Voting Rights Act, I voted for it.”  Sessions hasn’t always felt that way.  He once called the VRA a “piece of intrusive legislation.”

3:21: Sessions: “We’re going to do that crack cocaine thing we talked about.”  After laughter breaks out, he corrects himself, saying that he meant that he will support reducing the crack/powder disparity.

3:09: Peter Kirsanow, who just testified as a Republican witness, has some interesting views about internment camps for Arab-Americans.

3:06: Linda Chavez, a leading opponent of civil rights laws and Fox News commentator, opens her testimony with “I testify today not as a wise Latina woman.”  Keep it classy, Ms. Chavez.

2:58: Ben Vargas, the other firefighter, is now testifying.  Like Ricci, he emphasizes the essential role that firefighters play in protecting people’s lives, and his belief that he was judged on the basis of his race.  Like Ricci, we agree that Vargas is an heroic man who was caught up in circumstances he could not control.  He lost his case because of a binding precedent, not because of any verdict on his character.

2:50: Ricci’s remarks focus on the great deal of specialized knowledge that firefighters must have, his belief that the test that he took did a fine job of testing this knowledge, and how hard he worked to pass the test.  To be clear, no one doubts that Ricci, a man who spent his entire career running into burning buildings to save people’s lives, is a dedicated and heroic firefighter.  As a judge, Sotomayor’s job was not to decide whether Frank Ricci is sympathetic–he would have won that case in a walk–the issue is what the law requires.  In this case, Second Circuit precedent simply wasn’t on Ricci’s side.

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Sotomayor Hearing Live-Blog, Day 3 »

This week, the Wonk Room will live blog Judge Sonia Sotomayor’s confirmation hearings.  Yesterday, Jefferson Beauregard Sessions III attacked Sotomayor for not behaving like other Puerto Ricans, and the right-wing Committee for Justice released an ad claiming that Sotomayor led a terrorist organization.  This morning features questioning by Senators Cornyn and Coburn, we’ll see if they can clear the low bar set by Sessions and the CFJ.  We will be updating this thread throughout the day.

5:49: And that’s a wrap . . . for today.

5:45: Cardin highlights one of Sotomayor’s major religious liberty cases, Ford v. McGinnis, in which she held that a prison could not deny Muslim inmates their First Amendment right to participate in the traditional meal celebrating the conclusion of Ramadan merely because prison officials determine that this traditional celebration was not sufficiently important to Muslims.

5:38: Cardin’s up, then recess for the day.

5:36: Broken Record Watch: Grassley still thinks that land developers are immune from statutes of limitations.  And, for the record, Mr. Didden made an enormous profit on this land because it was seized by eminent domain.  The only question in Didden’s lawsuit was whether he would get a massive windfall, or an awesomely massive windfall.

5:27: Sotomayor says that she has “no quarrel” regarding certain principles governing judicial neutrality, then cuts herself off, says “no quarrel sounds equivocal,” and fully endorses the principles.  This may be a subtle dig at Roberts and Thomas, who routinely said that they have “no quarrel” with decisions that they stridently opposed once they were confirmed to the Court.

5:22: Ok, Grassley is making the utterly insane argument that a case called Baker v. Nelson is a Supreme Court precedent that forbids the Court from mandating marriage equality.  Here is the entire text of Baker v. Nelson:

Appeal from Sup. Ct. Minn. dismissed for want of substantial federal question.

5:20: Your humble blogger is back.  Just in time to get hit with a fistful of crazy by Chuck Grassley, it seems.

4:28: Your humble blogger has to duck into a meeting.  No one say anything crazy while he’s gone.

4:24: Sessions doesn’t remember the Roberts and Alito hearings very well:

4:18: SCOTUSBlog makes a funny.  Sotomayor references a British study on the use of precedent.  SCOTUSBlog: Sessions “probably not happy with the reference to international law.”

4:11: Sessions doesn’t know what a board of directors does.  He again claims that Sotomayor authorized an organization she sat on the board of to take positions that he disapproves of, but the New York Times reports that she had virtually no role in shaping the organization’s litigation, and ABA rules forbid the board members of legal organizations from supervising an attorney/client relationship.

4:09: Shorter Broken Record Watch: Foreign Law.  Talmud.  Scalia.  Unelected Rabbis.

4:04: Irony Watch: Sessions complains about people who try to “promote agendas through the law.”

4:01: Broken Record Watch, Part II: Now Sessions is attacking Sotomayor for following a binding Supreme Court precedent regarding the Second Amendment.  Federalist Society darling Judge Frank Easterbrook disagrees with with Sessions.

3:55: Broken Record Watch: Sessions goes right to “wise Latina.”

3:52: Leahy makes an important point, a right means nothing if it cannot be enforced.  Sotomayor agrees.  Sadly, many of her future colleagues do not.

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Sotomayor Hearing Live-Blog, Day 2 »

This week, the Wonk Room will live blog Judge Sonia Sotomayor’s confirmation hearings.  As expected, conservatives spent yesterday’s session claiming that Sotomayor is incapable of “impartiality,” especially in matters related to race.  We’re still waiting for them to cite an actual case suggesting that this claim is true, however.  We will be updating this thread throughout the day.

5:30: CAPAF’s statement on day two is up.  Here is a taste:

Today, at Judge Sonia Sotomayor’s confirmation hearing, Sessions wondered aloud how Sotomayor could have voted differently than another judge of “Puerto Rican ancestry.”

So it is very odd that conservatives would choose Sessions as their point person on the Sotomayor nomination. At best this choice is laughably tone deaf. At worst it shows that Senate conservatives wholeheartedly embrace Sessions’ views on race.

It is crystal clear, however, that Sessions is the architect of the conservative strategy against Sotomayor. In a campaign that echoes Lee Atwater’s infamous Willie Horton ad and Jesse Helms’ “white hands” ad, today’s attacks on Sotomayor have focused almost exclusively on race. Nevermind that conservatives have only uncovered one case in Sotomayor’s record, Ricci v. DeStefano, which supposedly supports their claim that Sotomayor is biased against white men. And nevermind that Sotomayor simply followed a 1984 precedent which is nearly identical to Ricci when she decided that case. Apparently conservatives believe the facts must take a backseat to race-baiting.

5:27: Hearing now in recess until tomorrow @ 9:30.

5:24: Leahy announces that questions will resume in the morning.  After every Senator has gone, the committee will go into a closed session to discuss Sotomayor’s FBI background check and similar information, and your humble blogger will take a much needed break.

5:11: Durbin quotes an unnamed SCOTUS justice who told him that “our system of correction and incarceration . . . has to be the worst” (Senator Webb has made similar statements about the need to fix America’s overincarceration problem).  Also takes aim at the crack/powder disparity, which one federal judge said “makes the war on drugs look like a ‘war on minorities.’ “  As originally enacted, the crack/powder disparity causes 5 grams of crack to be punished exactly the same as 500 grams of powder cocaine.

5:03: Durbin highlights case where Sotomayor upheld the death penalty against a constitutional challenge.  Apparently, even if she does disagree with the death penalty personally, as Graham claims, she also understands how to follow the law.

4:52: Graham hitting Sotomayor on a letter she signed in 1981.  Does he want to ask her about her sixth grade book reports as well?

4:50: Shhhhhh . . . Senator Grassley is sleeping.

4:47: Graham is now playing guilt by association, asking her about briefs written by attorneys at an organization she was on the board of.  Sotomayor responds, “I never read those briefs.”  Her primary duty as a board member was fundraising; she did not supervise their attorneys.

4:41: Graham: America discriminates against the poor white man by not letting him claim that they are better than minorities.

4:33: Graham calls Sotomayor a “bully” on the bench, claiming that lawyers “find you difficult and challenging.”  If Graham doesn’t like judges who bully, he must have voted against CJ Roberts, and he must hate Justice Scalia, right?

4:30: Graham: the existence of the Due Process Clause proves that your speeches are bad.  Huh?  Also claims that the Constitution contains “no written prohibition that you can’t pray in school.”  Of course the Supreme Court has never said that children can’t pray in school.  The Supreme Court has said that the government can’t tell them how to pray, and the “written prohibition” on official government prayer is the First Amendment, which bans laws “respecting an establishment of religion.”

4:27: Graham makes a funny: “Don’t become a speech writer if this law thing doesn’t work out.”

4:19: Dissenting in the judge-for-sale case, Justice Scalia cited the Talmud.  Why does Justice Scalia want us to be ruled by unelected Rabbis?

4:15: Sotomayor rebuffs conservative claims that she thinks that foreign law governs the U.S. Constitution.  No one believes that it does, but that hasn’t stopped Sessions from spreading his made-up claim that Sotomayor wants to turn the U.S. courts over to France.

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Sotomayor Hearing Live-Blog, Day 1 »

This week, the Wonk Room will live blog Judge Sonia Sotomayor’s confirmation hearings.  As we have previously reported, Republicans are prepared to make race the focus of their attacks on Sotomayor, with foreign law, the Second Amendment, eminent domain and opposition to reproductive choice rounding out their strategy.  We will be updating this thread throughout the day.

3:53: CAPAF’s statement on the first day of the hearing is available here.  It begins “Republican attacks in today’s confirmation hearings for Judge Sonia Sotomayor focused largely on their claim that Sotomayor lacks “impartiality” and is likely to decide cases based on her personal beliefs instead of the law. This line of attack is not surprising in light of their comments prior to the hearings, yet Republicans have still been unable to cite a single case where Sotomayor put her feelings before the law.”

3:02: Hearings in recess until 9:30 tomorrow morning.

3:00: Here is the meat of Judge Sotomayor’s statement:

Throughout my seventeen years on the bench, I have witnessed the human consequences of my decisions. Those decisions have been made not to serve the interests of any one litigant, but always to serve the larger interest of impartial justice.

In the past month, many Senators have asked me about my judicial philosophy. It is simple: fidelity to the law. The task of a judge is not to make the law – it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress’s intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court. In each case I have heard, I have applied the law to the facts at hand.

2:54: Sotomayor sworn in; begins statement.

2:51: Gillibrand takes a nice dig at Sessions.  Sotomayor’s leadership role in a civil rights organization, just like Justices Marshall and Ginsburg’s service with similar organizations, should not be used as a “disqualifier.”

2:37: Franken: Justice Thomas votes to overturn federal laws more than Justice Stevens and Justice Breyer combined.  Indeed, Thomas votes to second-guess Congress 65.63% of the time–more than any other justice.  The only Democratic appointees on the Court, Justices Ginsburg and Breyer, are the least likely to do so.

2:32: Another “abortion is murder” protestor interrupts the hearing.  Finish your beers.

2:30: The Al Franken Decade dawns.

2:25: Specter calls out CJ Roberts for saying in his confirmation hearing that he would led Congress decide how to remedy discrimination, then deciding that he knows better than Congress once he got on the Supreme Court.

2:21: Specter: Court has time for more cases.  Worries that there is too much uncertainty in the law because the Court only decides 60-70 cases per year–as opposed to the hundreds of cases it would hear each year in the 1800s.  Calls out the Court for not considering the merits of President Bush’s warrantless wiretapping and the rights of 9/11 victims.

2:17: Kaufman calls out the Supreme Court for putting a thumb on the scale in favor of corporations, citing preemption of progressive state laws, punitive damages and other corporate immunity cases as examples.

2:10: Klobuchar attacks the Supreme Court from the right, criticizing a recent decision (by Justice Scalia) which said that criminal defendants have a constitutional right to call lab techs who prepare evidence against them to the witness stand.

2:01: Leahy gavels the hearing back into session.  Senator Klobuchar now speaking.

12:38: Committee now in recess until 2pm.

12:38: Durbin: of the 110 justices to serve on the Supreme Court, 106 have been white males.

12:32: Another “abortion is murder” protestor interrupts the hearing and is removed.

12:23: Coburn opens his statement by praising Gonzales v. Carhart, which upheld a ban on certain kinds of abortion.  Later, he says “we want the system of law to be predictable,” but Carhart overruled a Supreme Court precedent which was only seven years old.  Apparently, the law only needs to be predictably conservative.

12:22: Coburn: “I thought this was your hearing and not Chief Justice Roberts’ hearing.”  Apparently he hasn’t been paying attention, this is Miguel Estrada’s hearing.

12:12: Whitehouse: “pretense” that Republican judges are modest and Democratic judges are “activist” runs counter to recent history.  CJ Roberts’ claim that judges should behave like “umpires” is “belied” by Roberts himself.  Quotes Jeffery Toobin’s observation that “In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. . . . Roberts has served the interests, and reflected the values, of the contemporary Republican Party.”

12:06: Cornyn spends his statement ranting against judges who rule against the elected branches, then cites D.C. v. Heller, the recent Second Amendment decision, as an ideal case.  But Heller struck down a law enacted by the elected D.C. City Council.  Apparently, judicial modesty = doing whatever conservatives want.

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What The GOP Witness List Reveals About Their Anti-Sotomayor Strategy

The Senate Judiciary Committee has released the list of witnesses who will testify at Judge Sotomayor’s confirmation hearings, thereby telegraphing much of their anti-Sotomayor strategy in the process.  Based on their lineup, it’s clear that Republicans plan to follow five lines of attack:

• Ricci

Front and center in the list of GOP witnesses is Frank Ricci himself, the New Haven firefighter whose promotion test results were set aside by that city, along with Ben Vargas, a lieutenant in the same fire department and Ricci’s co-plaintiff in his now-famous lawsuit.  The list also includes Peter N. Kirsanow, a George W. Bush appointee to the U.S. Commission on Civil Rights (and former witness in support of nominees John Roberts and Samuel Alito), and Linda Chavez, a former Reagan and Bush I Administration official and the head of a leading anti-civil rights organization.

From this list, it couldn’t be clearer that the Ricci case will be the point of the conservative spear against Sotomayor.  While Kirsanow and Chavez can be expected to testify like the GOP political operatives that they are, expect Ricci and Vargas to offer compelling statements.  By all accounts, both men were caught in unfortunate circumstances that they did not cause, and there is no indication that they are anything other than dedicated firefighters.  In other words, Republicans hope that the American people will be moved by Ricci and Vargas’ testimony and wonder why Sotomayor did not show more empathy for their circumstance.  The reason, of course, is that Sotomayor was following a binding precedent, and judges aren’t free to ignore the law simply because they are faced with compelling plaintiffs.

• Foreign Law

Recently, Senator Jeff Sessions (R-AL) gave a floor speech claiming–falsely–that some judges believe that foreign court decisions should govern U.S. law.  No one, including Judge Sotomayor, believes this.  Nevertheless, the witness list includes Neomi Rao, Nick Rosenkranz and John McGinnis, all right-wing international law professors who are likely to share Sessions’ delusion.  David Rivkin, an advocate of limitless executive power, may also testify on the subject of foreign law.

• Second Amendment

Next up are former NRA President Sandy Froman, along with David Kopel and Stephen Halbrook, both of whom work on Second Amendment issues for the right-wing Independence Institute.  All three of them will probably make the false claim that Sotomayor was hostile to the Second Amendment when she followed a binding Supreme Court precedent holding that the Second Amendment does not apply to the states.  Apparently, the law is optional when you are a conservative.

• Eminent Domain

Ilya Somin is a radical libertarian law professor who filed an amicus brief asking the Supreme Court to reverse Sotomayor’s decision holding that land developers must file their eminent domain claims within the three year statute of limitations.  The Supreme Court did not take Professor Somin up on this offer; apparently land developers have to follow the same laws as everyone else.

• Anti-Choice

Possibly the most interesting thing about the GOP’s witness list is that it only contains one anti-choice witness, Charmaine Yoest of Americans United for Life–additional evidence that cultural issues are losing their salience in American politics.

Additionally, the witness list contains one oddball, a management consultant named Tim Jeffries.  It’s unclear exactly what Jeffries has to contribute to this discussion.

Strange Washington Post Article Attacks Sotomayor As Too Meticulous

In what may be the most unusual hit on Judge Sotomayor to date, the Washington Post has a long article today attacking Sotomayor because her opinions are too detailed:

During nearly 11 years on the federal appeals court in New York, Sotomayor has made herself an expert on subjects ranging from the intricacies of automobile mechanisms to the homicide risks posed by the city’s population density. Her writings have often offered a granular analysis of every piece of evidence in criminal trials, and sometimes read as if she were retrying cases from her chambers.

Legal experts said Sotomayor’s rulings fall within the mainstream of those by Democratic-appointed judges. But some were critical of her style, saying it comes close to overstepping the traditional role of appellate judges, who give considerable deference to the judges and juries that observe testimony and are considered the primary finders of fact.

The Post’s hit on Sotomayor is ironic in light of the fact that conservatives have spent the last several weeks claiming that Sotomayor’s decisions aren’t detailed enough, but it nevertheless lacks merit.  Of course, Sotomayor should be praised, not attacked, for writing detailed and well thought out opinions; but the Post also reaches its conclusion by looking at a skewed sample of her decisions that includes the cases where a judge is most likely to be particularly detailed in drafting an opinion.

For starters, the Post only reviewed Sotomayor’s decisions in cases where at least one other judge disagreed with her and wrote a separate opinion.  But such cases are a terrible measure of how detailed a judge’s writing usually is.  When a judge is forced to defend their decision against a dissenting colleague, they virtually always flesh out their opinion considerably to rebut any claims made by the dissent.

The Post also cites a handful of cases where Sotomayor reversed a trial court because she disagreed with its findings of facts.  Although the Post is correct that appeals judges must give “considerable deference” to a trial judge’s fact finding, “considerable” does not mean “absolute.”  Rather, an appeals court is supposed to reject a trial court’s factual findings when they are “clearly erroneous.”  Moreover, it is exactly because of this high degree of deference accorded to a trial judge’s findings that appeals court decisions rejecting a trial court’s fact finding are often very long and detailed.  Because an appeals court must have a very good reason to reverse a trial court’s factfindings, a sensible appeals judge will go into great detail whenever they do so in order to explain why they are taking this unusual step.

Interestingly, the Post’s piece quotes a former law clerk to ultra-conservative Justice Clarence Thomas, who explains that Sotomayor’s opinions are “extraordinarily thorough, and a judge would ordinarily be praised for writing thorough opinions.”  Perhaps the Post should have listened to this former clerk’s advice before it published an absurd attack piece slamming Judge Sotomayor for being too good at her job.