“The GOP’s Worst Nightmare SCOTUS Nominee”: Let America Watch Republicans Tie Themselves In Knots
Here’s a name you need to get to know: Tino Cuellar. Who is Tino Cuellar? The potential Supreme Court nominee who could tie the Republican Party in the most Gordian knots of any of them, and who could thereby alter the presidential race dramatically as well.
Yes, yes; Barack Obama should choose the person best qualified for the job with whom he is most intellectually comfortable. But should that person be Mariano Florentino Cuellar, there could be plenty of benefits aside from having a brilliant, young, Latino person on the Court.
Cuellar, 43, is an associate justice on California’s State Supreme Court. He was born in Mexico. He is a naturalized U.S. citizen. He grew up on the border, and his family moved to California’s Imperial Valley when he was a teenager. He was smart and decided he wanted an education. He got one, all right. Get this resume: undergrad, Harvard; law school, Yale; master’s and doctoral degrees, Stanford.
Here’s his full Stanford bio, so you can give it a gander, but it’s incredibly impressive. He worked at the White House, he worked in the Treasury Department, he taught law at Stanford. “He’s a brilliant guy,” says Samuel Bagenstos, a law professor at the University of Michigan who knows Cuellar. “He’d be the justice with the most wide-ranging intellect since William O. Douglas.” (Bagenstos asked me to note that he is backing no single candidate and thinks the president has many good choices.)
He was elevated to California’s high court by a unanimous bipartisan vote, and given the highest possible rating by the California Bar Association. He is married to a U.S. District Judge, Lucy Koh, who is a formidable intellect in her own right—the Senate confirmed her unanimously, 90-0, when Obama nominated her to that position in 2010. And they have two kids.
Now assuming there’s no skeleton in the old closet, suppose Obama sends Cuellar up to be nominated. Oh what fun it shall be.
We know almost to a certainty that the Republicans will oppose anyone. Mitch McConnell said it, all the presidential candidates said it, everyone says it, and everyone knows it. For a Republican senator to vote for Barack Obama’s replacement of the great Antonin Scalia would be as sure a form of instant political suicide as one can imagine in this country. There is just no way. And it may not even get to a vote. They’ll just sit on it, not even scheduling confirmation hearings, saying the American people deserve a voice in this nomination.
And Obama will say, as I noted yesterday, that I’m still the president and am going to be president for a while yet, and we have no modern precedent for letting the Court have an even number of members.
And then Americans will learn about Cuellar’s life story. The fancy universities, the four degrees, the testimonials to his intellect that will stream in. And of course he’d be not the first Latino, but still, the second out of nine, and the first Mexican-American (Sonia Sotomayor is Puerto Rican), who constitute by far the largest demographic group among American Latinos.
This is Reince Priebus’s perfect nightmare, is it not? Let America watch as old white-guy senator after old white-guy senator goes on TV to say “Oh, it’s nothing against Mr. Cuellar, it’s all about Obama, and the people’s voice.” And let America watch as nominee Donald Trump says the same thing. Or even Marco Rubio or Ted Cruz—in some ways that’s even worse for the GOP, to have a Cuban-American (or Cuban-Canadian-American) stand up and say this Mexican-American doesn’t belong on the Supreme Court. There are around 33 million Mexican-Americans in the country—and around 2 million Cuban Americans. How well do you think the math on that works for the GOP?
So Priebus, who in his silly little autopsy in 2013 insisted that Republicans were going to be the inclusive party and who still has the gall to talk like that today, even as his party’s voters convert a howling xenophobe into their front-runner, would have quite a situation on his hands. And we get to Election Day, and poor Cuellar has been sitting there for seven months after nomination without even having had the courtesy of a committee hearing.
What percentage of the Latino vote is the Republican nominee going to get then, if the party has precipitated a veritable constitutional crisis by refusing to perform its constitutional role and refusing to vote for this obviously qualified man? Maybe 12, 15, 18 tops? Tops. Remember, Romney got 27 percent, and it was considered a disaster. If the GOP nominee gets 18, winning Florida is an impossibility. And if winning Florida is an impossibility, then winning the White House is, too. Even Arizona is probably unwinnable for the Republicans with a number like that.
Now obviously, that is, as I said, Priebus’s worst nightmare. Things could be different. And again, I don’t think Obama should nominate Cuellar for these political reasons. But if he decided to nominate him, boy would it be great to see those people squirm.
By: Michael Tomasky, The Daily Beast, February 15, 2016
“Alabama Chief Justice Screwed 66 Judges”: Side With Roy Moore Or Side With The Law
Defying history, the law, and common sense, Alabama Chief Justice Roy Moore has issued an order prohibiting Alabama probate judges from issuing marriage licenses to same-sex couples.
Those judges now face a choice between disobeying the law of the land and disobeying their boss. Moore issued his law not as chief justice, but in his administrative role as head of the Alabama court system.
This is not Justice Moore’s first Hail Mary in the lost cause against gay marriage—and he’s not alone. All over the country, activists and law professors are wasting paper on fatuous proclamations that Obergefell v. Hodges is not really the law of the land, or is illegitimate because it’s so horrible, or is somehow, some way not as binding as the Supreme Court said it was (PDF).
Roy Moore is just the only one who’s a state supreme court justice.
As with Moore’s past efforts to delay the inevitable, today’s order was a mélange of the sensible and the risible.
On the sensible side, Justice Moore does have some law on his side—in fact, three extremely narrow, technical threads on which he hangs his order.
First, technically speaking, Obergefell only bound the five states that were a party to it. Since Alabama was not one of those states, technically its law is caught in limbo. Second, the Alabama Supreme Court upheld its same-sex marriage ban on March 3, 2015.
And third, injunctions stemming from two federal cases challenging the ban are, as gellMoore opined last February (PDF), only binding on the executive branch, not the judicial branch—which includes probate judges. This appears to have been an oversight, the result of a pleading error by one of the parties. But rather than extend them in a common-sense way, Moore chose to restrict them in a nonsensical one.
So, as three hyper-technical matters of law, Obergefell doesn’t govern, the Alabama case stands, and the federal injunction doesn’t apply.
But that’s where it all becomes laughable—if not outright dishonest.
It is completely obvious that the Obergefell decision does, indeed, govern all 50 states. The logic it applied to Michigan is equally applicable to Alabama. That’s why LGBT activists broke out the champagne last June. It’s also why judges and clerks around the country, with only a handful of exceptions like Kim Davis, have applied the law and granted same-sex marriage licenses for months now.
Even the cases upon which Moore relies, in fact contradict him. For example, Moore cites an Eighth Circuit case decided on Aug. 11 that said “The [Obergefell] Court invalidated laws in Michigan, Kentucky, Ohio, and Tennessee—not Nebraska.” But that case affirmed, not rejected, the right to same-sex marriage in Nebraska, and forbade Nebraska from blocking it while the court case wound down to its inevitable conclusion.
This happens all the time. When the Supreme Court rules on an issue, it does not automatically end all the cases that deal with it. But it does make their outcomes obvious. So, while the legal matters are formally resolved, lower courts issue or stay injunctions in light of the Supreme Court ruling.
For example, when the Supreme Court outlawed miscegenation bans in 1967, those bans technically remained on the books in 16 states, and many were not repealed until quite recently. But courts immediately issued injunctions forbidding the enforcement of those laws.
To take another example, many of the sodomy laws at issue in Lawrence v. Texas are technically still on the books. But courts everywhere have prohibited their enforcement.
Obergefell, obviously—laughably obviously—is similar. As the Supreme Court wrote, “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them… The State laws challenged by Petitioners in these cases are now held invalid.”
Yes, as Justice Moore italicizes in his order, only “the State laws challenged… in these cases” were invalidated last June. But the rest of that paragraph obviously applies to all same-sex couples everywhere. There is no distinction between those in Alabama and those in Michigan, and so the legal outcome of the Arizona cases is a foregone conclusion. To cherry-pick one clause from the entire paragraph is, at best, facetious.
And it’s not unlike the way Moore cites that Nebraska case: snipping out two words that support his position, and ignoring all of the context.
Where the laughter stops, though, is in Alabama’s 66 probate court offices. These judges and their clerks are, with only a handful of exceptions, loyal public servants who are trying to do their jobs. Many of them personally oppose gay marriage, but recognize that they’ve sworn oaths to enforce the Constitution, not the Bible. What the hell are they supposed to do now?
Perhaps the worst part of Moore’s odious order is when he cites the “confusion” among Alabama judges, as if that confusion simply arose on its own somehow. In fact, he sowed it himself, with his court- and common-sense-defying orders last February, and he has watered those seeds with his absurd hair-splitting today.
Of course, Moore’s order will be rendered null and void, hopefully expeditiously, by a federal court in Alabama formally closing the same-sex marriages cases still pending, or extending the injunctions in them to judicial as well as executive employees. The tide of history will not be turned.
But in the meantime, not only has Moore demeaned every married couple in Alabama, straight and gay, he has also thrown his own employees under the bus. If I were a probate judge in Birmingham, I’m not sure what I would do tomorrow morning.
Roy Moore’s symbolic snatch of demagoguery may play well at the polls someday. But in the meantime, he has disrespected Alabama’s LGBT citizens, disrespected the rule of law, and disrespected all those doing their best to enforce it.
By: Jay Michaelson, The Daily Beast, January 7, 2015
“How America Tolerates Racism In Jury Selection”: Discrimination In Jury Selection Is Indeed A National Problem
On Monday, the Supreme Court will hear oral arguments in Foster v. Chatman, a case that challenges the all-too-common practice by which prosecutors deliberately exclude African-Americans from criminal juries.
The Supreme Court tried to outlaw this practice in 1986 through its landmark ruling in Batson v. Kentucky. But prosecutors routinely ignore that decision, excluding black jurors because of marital status, manner of dress, last names and other allegedly “race neutral” reasons.
This is problematic because interracial juries make fewer factual errors, deliberate longer and consider a wider variety of perspectives than all-white juries, according to several studies.
It’s time for the court to meaningfully enforce the ban on racial discrimination in jury selection.
In 2010, the Equal Justice Initiative, a nonprofit law firm, studied eight Southern states — Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina and Tennessee — and found the problem to be rampant.
For example, from 2005 to 2009, prosecutors in Houston County, Ala., struck 80 percent of qualified black jurors from death penalty cases. Consequently, in a county that’s 27 percent black, half of death penalty juries were all-white. The other half had one black citizen each.
Another study of death penalty trials in North Carolina shows that from 1990 to 2010, prosecutors excluded black jurors over twice as often as nonblack jurors.
An analysis of over 300 felony jury trials in Caddo Parish, La., from 2003 to 2012 found that of 8,318 qualified jurors, nearly half of black jurors were struck, compared with only 15 percent of nonblack jurors.
Clearly, Monday’s case will have national implications.
About 30 years ago, a black man, Timothy Foster, went on trial for his life in Georgia. He was accused of killing an elderly white woman. During the jury selection process, the prosecutors struck all four potential black jurors. Then, they argued before the all-white jury for a death sentence to “deter other people out there in the projects.” They probably would have made a different argument if the jury had included at least one of the black citizens called to serve.
The jurors complied and sentenced Mr. Foster to death.
In at least six different ways, the prosecutors singled out eligible black jurors: Notes from the jury selection list show they marked their names with a “B” and highlighted them in green on four separate copies; circled the word “black” on their juror questionnaires; noted several as “B #1,” “B #2”; ranked potential black jurors against one another “in case it comes down to having to pick one of the black jurors”; and wrote “Definite NOs” on the list of priority strikes, which had all four possible black jurors.
And how often are whites or blacks, women or men, gays or straights, muslims or Christians, etc. dismissed because the defense strikes them?…
Although the prosecution has never admitted that race played a role in selecting a jury for Mr. Foster’s trial, some of its “race-neutral” reasons for strikes were inaccurate and inconsistent.
For example, prosecutors struck a black juror for being a social worker — but she was a teacher’s aide. Meanwhile, prosecutors accepted every white teacher and teacher’s aide in the jury pool.
When the prosecutors asked a white juror and a black juror whether the defendant’s age, which was close to that of their children, would be a factor in the sentence, the black juror said “none whatsoever” but was struck based on his son’s age. The white juror answered “probably so” and was accepted.
Along with other former prosecutors, I joined a friend-of-the-court brief in support of Mr. Foster. We recognize, and refuse to condone, the blatant unconstitutionality of the prosecutorial misconduct in this case. Moreover, my own experience suggests that discrimination in jury selection is indeed a national problem, despite over a century of attempted legislative and judicial remedies.
In 1995, at a workshop hosted by North Carolina’s district attorneys, the attendees were given a handout titled “Batson Justifications: Articulating Juror Negatives.” It listed acceptable reasons for striking potential jurors, like body language, attitude and other factors, that the prosecution could present in the face of a Batson challenge. These vague explanations are virtually impossible for future courts to interpret as race-based, although they often are.
Mr. Foster’s case offers a rare instance of extraordinary and well-documented misconduct. The prosecution’s notes show purposeful racial discrimination in jury strikes. A judicial system that allows for obviously discriminatory jury selection is intolerable. If the court cannot establish discrimination in this case, then the lofty language of Batson rings hollow.
By: Larry D. Thompson, Op-Ed Columnist, The New York Times, October 30, 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
“Caring About The Political Fortunes Of The Causes”: If Bernie Sanders Wins, Centrist Liberals Are Morally Obligated To Support Him
In modern electoral politics, moderate and centrist Democrats are well-known for browbeating leftists with the lesser-evil argument. Democrats might not be particularly concerned about, say, child poverty, but they’re still better than Republicans on just about any issue you care to name. Obama might drone strike American citizens, but at least he doesn’t start full-blown wars of aggression that kill hundreds of thousands of people.
And that’s true, so far as it goes. However, there is a small but distinct possibility that moderates might find themselves on the receiving end of such an argument in the next election, if a leftist like Bernie Sanders wins the presidential nomination. As Matt Bruenig points out, they don’t seem to like this possibility. But they better be prepared for it.
For an example of a Democratic partisan, here’s Mark Kleiman explaining why he doesn’t agree with “emo-progs” (i.e., left-wing critics of Obama), in a post from a couple years ago entitled “Confessions of an Obamabot”:
What the emo-progs refuse to remember — now, and in the run-up to the 2010 election — that I never for a moment forget is that, whatever the failings of Barack Obama the human being, “Barack Obama” the political persona is the leader of the Democratic Party (and thus, effectively, of the entire progressive coalition) in a battle with a well-organized, well-funded, and utterly dedicated plutocrat-theocrat-racist-misogynist-obscurantist-ecocidal Red Team, whose lunatic extremism is now actually a threat to republican governance. If I’m reluctant to help Rand Paul and Glenn Greenwald add NSA! to Benghazi! and IRS! and Solyndra! and all the other b.s. pseudo-scandals designed to make Obama into Richard Nixon, it’s not because I’m in love with “The One:” it’s because, for good or ill, the political fortunes of the cause I care about are now tied to Obama’s political fortunes. [Washington Monthly]
Interpreted narrowly, this is a reasonable point. It is very often taken too far, of course — as with the people who blame the 97,000 Nader voters in Florida in 2000 for Gore’s loss of that state, instead of the 2.9 million who affirmatively voted for Bush. I would further add that Democrats should not always be supported without question. Centrist hack Democrats like Andrew Cuomo do not care about left-wing priorities like affordable housing and quality public transit — indeed he has actively worked against both. In Cuomo’s case, it is worth risking a potential loss in order to change the political incentives in New York at the state level.
Still, in America, tactical voting must always be a consideration. And for voters in swing states, that consideration is powerful indeed. Republicans really could do spectacular damage — just look at the smoking wreckage the last GOP president left.
The question is whether moderates are willing to swallow such an argument if Sanders manages to clinch the Democratic nomination. It’s still an extreme long shot, but it’s not completely out of the question.
After all, something similar happened in the U.K. just last week, with the election of Jeremy Corbyn as leader of the Labour Party. The reaction was not encouraging. Moderate liberals, like New Labourite Tony Blair, who all but begged his nation on hands and knees not to vote Corbyn (and probably added 10 points to Corbyn’s victory margin in the process), are furious. Some Labour MPs have reportedly even approached the Liberal Democratic Party about defecting.
Of course, that’s in the U.K., a genuinely multi-party democracy. There is less of an obligation to support Labour when the Greens or Scottish National Party could end up being part of a liberal coalition. In the U.S., there are only two real national parties, thus greatly strengthening any lesser-evil argument.
So unless moderate liberals’ arguments were 100 percent hypocrisy, should Sanders lock down the nomination, they will be obliged to support him. If they really care about the political fortunes of the causes they care about — ObamaCare, climate change, women’s rights, a higher minimum wage, keeping 27-year-old Heritage interns off the Supreme Court, etc. — they best start saying “actually, democratic socialism is good” in front of a mirror. They may need the practice.
By: Ryan Cooper, The Week, September 20, 2015
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