“Obama Rejects The Rejectionists”: Scalia’s Passing Starts A Court Fight For The Ages
In most presidential elections, Supreme Court nominations are a major issue for elites and a substantial concern for significant parts of the conservative movement. Other voters usually see the future makeup of the court as a side matter, or not essential to their decisions at all.
Justice Antonin Scalia’s death on Saturday will change this.
The issue of conservative judicial activism had already begun to take hold among liberals because of a series of fiercely ideological and precedent-shattering 5-to-4 decisions.
You read that right: After decades during which conservatives complained about “liberal judicial activism,” it is now conservatives who are unabashed in undermining progressive legislation enacted by the nation’s elected branches. Scalia will be remembered fondly on the right as the brilliant exponent of the theory of “originalism” that provided a rationale — or, in many cases, a rationalization — for decisions that usually fit conservative ideological preferences.
In 2010, Citizens United v. FEC rewrote decades of precedent on Congress’ power to regulate how campaigns are financed, facilitating a flood of money into elections from a small number of very wealthy Americans. Three years later, Shelby County v. Holder ripped the heart out of the federal government’s enforcement power in the Voting Rights Act. Last week, conservatives on the court halted the implementation of President Obama’s Clean Power Plan, his central initiative on climate change.
This is merely a partial list. The court’s conservatives have also regularly undercut the power of unions and the ability of citizens to wage legal battles against corporations.
Such decisions already had the potential of broadening the range of progressive constituencies invested in making the court a major election issue, including political reformers, African Americans, environmentalists and organized labor.
But Scalia’s death means that Obama or his successor — if that successor is a Democrat — could overturn the current conservative majority on the court, which could lead it to revisit many of the most troubling decisions of recent years.
And Republicans did themselves no favors in the coming argument by moving in a hard political direction even before most of the tributes to Scalia had been published — and even before the president had actually picked someone: Senate Majority Leader Mitch McConnell (R-Ky.) proclaimed that no Obama nominee would be considered, period.
“The American people should have a voice in the selection of their next Supreme Court justice,” McConnell said. “Therefore, this vacancy should not be filled until we have a new president.”
Republicans claimed precedent for ignoring court appointees from presidents on their way out the door. During Saturday night’s debate in South Carolina, Marco Rubio said that “it has been over 80 years since a lame-duck president has appointed a Supreme Court justice.” Ted Cruz made a similar point.
Well. A Senate controlled by Democrats confirmed President Reagan’s nomination of Anthony Kennedy on a 97-0 vote in February 1988, which happened to be an election year. By what definition was Reagan not a lame duck when he put Kennedy forward on Nov. 11, 1987?
Obama rejected the rejectionists. He said Saturday he would name a new justice and that there would be “plenty of time . . . for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote.”
My hunch is that Obama will try to put the Republicans’ obstructionism in sharp relief by offering a nominee who has won support and praise from GOP senators in the past. Three potential candidates who fit these criteria and won immediate and widespread mention were Merrick Garland and Sri Srinivasan, both judges on the U.S. Court of Appeals for the District of Columbia, and Jane Kelly, a judge on the 8th Circuit. (I should note that Garland is a dear friend of long standing.)
Whatever choice Obama makes, he will try to make it as hard as possible for Republican senators — especially those struggling for reelection this year in blue or purple states — to claim that he had picked an ideologue. Obama could also argue he had deferred to the Republicans’ Senate majority by offering a candidate whom many of them had supported in the past.
An extended court fight would allow progressives, once and for all, to make clear it is their conservative foes now using judicial power most aggressively. The partisan outcome of this year’s election just became far more important. This fall, Americans will not just be picking a new chief executive. They will be setting the course of the court of last resort for a generation.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, February 14, 2016
“A Standard Of Absolute Purity”: His Respected Friend; But What Does Bernie Really Think Of Hillary?
What does Bernie Sanders really think of Hillary Clinton?
When they meet in debate, the Senator from Vermont usually refers to the former Secretary of State as his “friend” – not in the polite Congressional-speech sense of someone that he actually despises, but in what is presumably his authentic, Brooklyn-born candor. He speaks frequently of his “great respect” for Clinton. And he has said more than once that “on her worst day” she would be a far better president than any of the potential Republican candidates “on their best day.”
Even more often, however, Sanders suggests that Clinton has sold out to the financial industry for campaign contributions, or for donations to her SuperPAC, or perhaps for those big speaking fees she has pocketed since leaving the State Department. Certainly he has fostered that impression among his supporters, who excoriate Clinton in the most uninhibited and sometimes obscene terms on social media.
But if Sanders believes that Hillary Clinton is “bought by Wall Street” — as his legions so shrilly insist — then how can he say, “in all sincerity,” that she is his respected friend?
To date, his criticism of Clinton on this point is inferential, not specific. He hasn’t identified any particular vote or action that proves her alleged subservience to the financial titans she once represented as the junior senator from New York. As Sanders knows, Clinton’s actual record on such issues as the Dodd-Frank financial regulation bill and the Consumer Financial Protection Bureau ran opposite to the banksters.
Back in 2007, eight years before she could ever imagine facing the socialist senator in debate, she spoke up against the special “carried interest” tax breaks enjoyed by hedge-fund managers. Her proposals to regulate banks more strictly have won praise not only from New York Times columnist and Nobel economist Paul Krugman, but from Senator Elizabeth Warren (D-MA), the populist Pasionaria, as well.
Still, to Sanders the mere act of accepting money from the financial industry, or any corporate interest, is a marker of compromise or worse. Why do the banks spend millions on lobbying, he thunders, unless they get something in return? The answer is that they want access – and often donate even to politicians who don’t fulfill all their wishes. They invariably donate to anyone they believe will win.
Meanwhile, Sanders doesn’t apply his stringent integrity test to contributions from unions, a category of donation he accepts despite labor’s pursuit of special-interest legislation– and despite the troubling fact that the leadership of the labor movement filed an amicus brief on behalf of Citizens United, which expanded their freedom to offer big donations to politicians. (That case was rooted, not incidentally, in yet another effort by right-wing billionaires to destroy Hillary Clinton.)
By his own standard, Sanders shouldn’t take union money because the AFL-CIO opposed campaign finance reform, which he vociferously supports. Or maybe we shouldn’t believe that he truly supports campaign finance reform, because he has accepted so much money from unions.
Such assumptions would be wholly ridiculous, of course – just as ridiculous as assuming that Clinton’s acceptance of money from banking or labor interests, both of which have made substantial donations to her campaign, proves her advocacy of reform is insincere.
Political history is more complex than campaign melodrama. If critics arraign Clinton for the decision by her husband’s administration to kill regulation of derivatives trading, it is worth recalling that she was responsible for the appointment of the only official who opposed that fateful mistake. She had nothing to do with deregulation — but as First Lady, she strongly advocated on behalf of Brooksley Born, a close friend of hers named by her husband to chair the Commodity Futures Trading Commission. One of the few heroes of the financial crisis, Born presciently warned about the dangers of unregulated derivatives.
So it is fine to criticize Clinton’s big speaking fees from banks and other special interests, which create a troubling appearance that she should have anticipated. It is fine to complain that politicians are too dependent on big-money donors. And it is fine to push her hard on the issues that define the Sanders campaign, which has done a great service by highlighting the political and economic domination of the billionaire elite.
But it is wrong to accuse Clinton of “pay for play” when the available evidence doesn’t support that accusation. And if Sanders wants to hold her to a standard of absolute purity, he should apply that same measure to himself.
By: Joe Conason, Editor in Chief, Editor’s Blog, The National Memo, February 13, 2016
“Veterans Being Used As Props”: Trump Claims To Aid Veterans, But Is He The World’s Least Charitable Billionaire?
Donald Trump wants voters to believe that he cares deeply about veterans and proved it by skipping Thursday’s Republican debate to raise money for organizations serving them.
But the billionaire developer’s latest stunt was all about him and his feud with Fox News, not about helping those who served. While he did raise $6 million (including $1 million of his own money), those funds all went to the Donald J. Trump Foundation — a tax-exempt non-profit entity that generally gives barely $1 million a year to charity, let alone to veterans’ groups (the last time it disbursed more than a million dollars was in 2012). Indeed, Trump is reputed to be “the least charitable billionaire in the world.”
He donated $5.5 million between 2009 and 2013, a tiny drop in the bucket for a man who is apparently worth $4.5 billion. According to the latest filings available, his foundation donated only $540,000 in 2014 — with $100,000, a fifth of all donations, going to a group listed as “Citizens United.” If that is the same group whose Supreme Court litigation led to the legalization of limitless political campaign expenditures, it received 10 times the amount of money that the Green Beret Foundation, a charity that helps Green Berets when they return home, received from the Trump Foundation in 2014.
His foundation’s record validates claims by veterans groups that they were being used as props in Trump’s campaign to make him seem the victim of Fox News.
Paul Rieckhoff, the founder of the Iraq and Afghanistan Veterans of America, tweeted before the Trump fundraising event: “If offered, @IAVA will decline donations from Trump’s event. We need strong policies from candidates, not to be used for political stunts.” Founded in 2005, IAVA has more than 180,000 members and provides support for over 2.8 million veterans of the Afghanistan and Iraq conflicts, according to its website.
Trump’s foundation, for its part, released a list of the charities that will be receiving the money raised at his counter-programing event. It includes 22 veterans organizations from over a dozen states. But the campaign has not commented on how the groups were selected or how the money will be distributed. If the money is distributed evenly, each organization would stand to receive around $272,000.
By avoiding the last Republican debate before the Iowa primary, Trump sent a clear message to the Republican establishment. He doesn’t need their approval to win over voters.
But it isn’t clear Trump won that battle, even if the debate had the second lowest ratings in this election cycle. The presidential campaign has been going on for nearly a year, the debate was the seventh one for the Republican candidates and it was held on a weeknight. Those factors may explain the lower ratings — and more Americans tuned in for the debate than for Trump’s rival event.
By: Saif Alnuweiri, The National Memo, January 29, 2016
“Whistling Past The Graveyard”: Why The Raging Dysfunction In Washington Is The New Normal
When Majority Leader Kevin McCarthy abruptly withdrew from his frontrunning candidacy to succeed John Boehner as speaker of the House, it underscored just how dysfunctional the “governing” Republican Party has become. The dispute within the party is not ideological — the degree of policy consensus within the Republican conference is remarkable. Rather, the dispute is tactical. Some party elites, like Boehner, understand that there’s no chance that Republican objectives like repealing the Affordable Care Act and defunding Planned Parenthood can be achieved with Barack Obama in the White House. Members of the Freedom Caucus, conversely, believe (or pretend to believe) that threatening government shutdowns and debt defaults can somehow force Obama to sign bills erasing his primary policy achievements. No wonder nobody wants the job.
It’s tempting to think that this rolling crisis, in which threats to the basic functioning of government become routine, is a temporary phenomenon. But there is a very real and frightening possibility: This is the new normal. The presence of two ideologically coherent parties, combined with the separation of legislative and executive authority, is probably going to produce similar results whenever there’s divided government.
There is a tendency to assume that the American constitutional order is inherently functional, and that there’s no problem that can’t be solved by replacing some bad actors in the legislature and/or judiciary. Nostalgic appeals to a more functional era are pervasive. In a recent interview with Gawker‘s Hamilton Nolan, for example, the dark-horse presidential candidate and legal scholar Lawrence Lessig asserted that the government “has no capacity to make decisions any more” and “it’s trivially easy for any major reform on the left or the right to be blocked,” but that “it’s a 20-year problem” based on the fact that “such a tiny number of people are funding campaigns.”
This is a happy story, despite the outward appearance of despair. If American constitutionalism is essentially functional, but has been ruined by some 5-4 campaign finance decisions issued by the Supreme Court, the problems can be solved. Not easily, but it’s possible to think that the next unified Democratic government can restore order.
But the truth is considerably darker. First of all, Lessig underestimates how difficult major social reform has always been in the United States. It was “trivially easy” for any major reform to be stopped before the author of Citizens United had even been born. The vast majority of the federal welfare and regulatory state was passed during two very brief periods: FDR’s first term and LBJ’s first three years in office. Otherwise, the alleged Golden Age of American politics was largely defined by statis.
Furthermore, it’s not a coincidence that the brief periods of reform occurred during periods of unusually large Democratic supermajorities in Congress. And even these periods were far from unalloyed liberal triumphs: The New Deal, for example, gave disproportionately fewer benefits to African-Americans to win support from Southern Democrats. The American constitutional order was designed to make major changes difficult, and it has largely succeeded.
Lessig is right, however, that some things have gotten worse in the last 20 years. It’s never been easy to pass major reform legislation, and as the first two years of the Obama administration shows, it’s still possible given enough Democrats in Congress. What has changed is that it used to be possible to do basic tasks like keeping the executive and judicial branches properly staffed and the government funded. Congress could also at least pass compromises on issues of lower-order importance. Things have gotten genuinely worse in recent decades in these respects.
Where Lessig is wrong is to think that there’s a magic bullet that can fix the problem. Reducing the role of money in politics and increasing access to the ballot are salutary initiatives that would improve things at the margin, but the dysfunction of American government is rooted deeply in the American constitutional order.
As Matt Yglesias recently explained at Vox, the fundamental problem is the diffusion of accountability that comes from separating the legislative and executive branches. As Yglesias observes, “Within a presidential system, gridlock leads to a constitutional trainwreck with no resolution.” Whether Democrats or Republicans are blamed for dysfunction in a period of divided government depends largely on who voters tend to support on a tribal level.
A paradox of the American separation-of-powers system is that actions like a government shutdown can hurt the reputation of Congress as a whole without threatening the electability of most individual members, a paradox Senate Majority Leader Mitch McConnell has exploited brilliantly. Whereas congressional leaders in the opposition used to think that they had to collaborate on at least some issues with a president to avoid being punished, McConnell and other contemporary leaders have recognized that denying the president accomplishments hurts the president more than it hurts them. And lest any Republican member of Congress consider returning to the old norms for the good of the country — I know, but let’s pretend for a second — they’re likely to face a viable primary challenge.
Does this mean, as Yglesias argues, that American democracy is “doomed”? This is unclear. But it does mean that the dysfunction in Washington, D.C., is likely to get worse before it gets better. And pretending that any single reform — no matter how worthy in itself — can solve these deeper problems is whistling past the graveyard.
By: Paul Lemieux, The Week, October 20, 2015
“There Is No Such Thing As Settled Law”: If You Liked 10 Years Of The Roberts Court, You’ll Love The Next Republican President
There were plenty of terrifying moments in this month’s Republican presidential debate on CNN, but one of the most terrifying, to me, was when the candidates started to complain that the current U.S. Supreme Court isn’t conservative enough.
Specifically, Jeb Bush and Ted Cruz went after Chief Justice John Roberts, who has led what law professor Erwin Chemerinksy has called “the most conservative court since the mid-1930s” but whose appointment the conservative far-right Cruz nonetheless called a “mistake.” What Cruz objected to was Roberts’ two votes to save the Affordable Care Act from frivolous conservative lawsuits. What he didn’t mention is that a less conservative right-wing Court would not have even entertained those politically motivated cases in the first place. In fact, the Court under Roberts has taken a stunning turn to the Right.
Today marks the 10th anniversary of the day Chief Justice Roberts was sworn in to the Supreme Court. In that decade, aided by the confirmation of fellow George W. Bush nominee Samuel Alito, he has led a Court that has radically reshaped vast swathes of the law, undermining constitutional protections for civil rights and voting rights, reproductive freedom, workplace fairness, the environment, gun violence, consumer fairness and representative democracy as a whole.
As People For the American Way explains in “Judgment Day 2016,” a new analysis of Roberts’ decade at the head of the Supreme Court, under his leadership the Court “has issued more than 165 5-4 decisions, many of which have bent the law and defied logic, seriously harmed the rights of ordinary Americans, promoted the interests of powerful corporations, and damaged our democracy.”
The most infamous of these is probably Citizens United v. FEC, which, along with a set of related cases, gutted the country’s campaign finance system, allowing wealthy individuals and corporate interests almost unchecked influence over American elections. But the Roberts Court’s gifts to Corporate America did not end there. Among the cases decided by the court’s five-justice conservative majority were Ledbetter v. Goodyear Tire and Rubber Co., which undermined women’s ability to seek equal pay for equal work; Burwell v. Hobby Lobby, which upended religious liberty protections to allow corporations to deny full health insurance coverage to their employees; and AT&T v. Concepcion, which protected corporations that cheat large numbers of customers out of small amounts of money.
The Court’s conservative right-wing bent has extended to civil rights cases, most stunningly its 5-4 ruling gutting the enforcement mechanism of the Voting Rights Act, which had allowed the Justice Department to review changes in voting laws in areas with a history of racial discrimination in election practices. In other cases, the court has been just one vote away from wreaking havoc on civil rights laws, including the 5-4 decision in which Justice Anthony Kennedy joined the four moderate Justices to preserve the ability to effectively enforce the Fair Housing Act, another critical achievement of the Civil Rights Movement.
This Court will rightly be remembered by many as the one that guaranteed gays and lesbians the right to marry in Obergefell v. Hodges. But that landmark case, in which Justice Kennedy joined the moderate Justices, was one bright spot in a very bleak landscape.
It’s important to remember as well that Chief Justice Roberts, whom Republicans are now attacking as too liberal, wrote the conservative justices’ scathing dissent in that case. If conservatives get one more vote on the Supreme Court, Obergefell could be in danger. If there is one thing the Roberts Court has taught us, it is that there is no such thing as settled law. Despite predictions that the Republican Party would just fold up its tent on the marriage issue, its presidential candidates are campaigning with promises to appoint Justices who will overturn the decision.
Whatever issue you care about most in the upcoming election – civil rights, health care, reproductive freedom, LGBT rights, or others – it will almost certainly end up before the Supreme Court. And the composition of that Court, and whether it will protect our rights or defer to big corporations and right-wing interests, will depend greatly on whether a Democrat or Republican is elected as our next president.
By the end of the next president’s first term, four of the current Supreme Court Justices will be in their 80s, past modern Justices’ average retirement age of 78. This means that the next president will likely have the power to either turn back the Court’s rightward swing … or preserve or worsen it for decades to come.
By: Michael B. Keegan, President, People for The American Way; The Huffington Post Blog, September 29, 2015
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