John Roberts

PFAW Edit Memo: Striking Progress on Judicial Nominations

To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel
Re: Striking Progress on Judicial Nominations
Date: September 22, 2014

So far, 2014 has been a banner year for effectively pushing back against the Republican obstruction of judicial nominees that we have seen since the moment Barack Obama took office. The past few months have shown just how much progress America can make in ending the deliberate sabotage of the third branch of government so that our nation’s federal court system can do what the Founders intended it to do: Protect every person’s rights and ensure that everyone can have their day in court.

Background

Since the day that George W. Bush left office, Republicans have sought to leave as many judgeships as possible vacant for as long as possible, apparently in the hopes of maximizing the next (Republican) president’s opportunities to nominate his or her own judges and impose a right-wing ideology on America’s federal courts. With that goal they have simply blocked confirmation votes, regardless of the nominee. The result has been long backlogs in courts across the country and serious delay in providing justice for many Americans.

Under Senate rules, unanimous consent is needed to schedule a confirmation vote for a judicial nominee – something that used to be regularly granted to nominees with strong bipartisan support, as most lower court judges have had. But for the first time, Republicans under President Obama have routinely refused to allow timely votes on nearly every nominee – even the vast majority who have little or no Republican opposition – effectively but invisibly filibustering just about every one of them. Only after months of delay would Republicans finally consent to a vote. In all other cases, the only way to break the logjam has been for Democrats to file a cloture motion to end the filibuster, a burdensome and time-consuming practice, and (until recently) one requiring a supermajority of 60 votes. So for the first five years of the Obama presidency, confirmations were regularly delayed for no reason, usually out of public view, for months longer than necessary. For instance, Richard Taranto was confirmed to the Federal Circuit unanimously, but the Senate was not allowed to hold a vote until 347 days after his committee approval; Republicans never publicly explained why they would not allow him a vote earlier.

Overcoming Obstruction in 2014

This year, things have changed. By late 2013, five years of unprecedented obstruction had climaxed in a declaration by GOP senators that they would filibuster any nominee for the critically important and understaffed District of Columbia Circuit Court of Appeals, no matter who the nominee might be, Senate Democrats concluded that the Senate and the nation would be significantly damaged if this were allowed to continue. The chamber responded to the exceptional obstruction by reforming its procedural rules. Going forward, cloture votes to end filibusters of executive and judicial nominees (with the exception of those to the Supreme Court) would require a majority of senators voting, rather than 60 votes.

Now, when Republicans refuse to consent to a vote, Majority Leader Reid files a cloture petition and sets a vote. Taking advantage of the change in Senate rules, Democrats have been able to defeat the GOP filibusters with a simple majority vote. While Republicans have not consented to even one judicial confirmation vote in 2014, they also have not been able to stop the Senate from voting on any of them. And despite the significant time that Republicans force the Senate to spend on each confirmation – drawn-out roll-call cloture votes, post-cloture time for debate of 30 hours for circuit court nominees and two hours for district court nominees (a debate that usually does not occur despite the time set aside for it), then time-consuming roll-call confirmation votes – Reid and the Democrats have persevered. Rather than wait for months longer than needed after committee approval before having a floor vote, the Senate has been able to act in a more timely – and appropriate – manner.

One of the basic and most important responsibilities of the U.S. Senate under the Constitution is to vote whether to confirm judges and keep the federal judiciary functioning. As of 2014, the Senate has no longer been blocked from doing that.

The figure below shows the dramatic drop in how long the average nominee has had to wait for a confirmation vote after approval by the Judiciary Committee as a result of the rules change:

With the Senate freed to do its job, the number of confirmation votes has grown significantly.

This has ameliorated the intentionally generated vacancy crisis that has hobbled our courts since President Obama took office. There were 54 vacancies when Obama was inaugurated in 2009. With the Senate blocked from holding timely confirmation votes, that number went to historic highs, skyrocketing to 100 by the end of the year. When the 111th Congress ended in December of 2010, Republicans blocked confirmation votes for 19 qualified nominees who had been approved by the Judiciary Committee, the overwhelming majority of whom had been approved unanimously or with almost unanimous support. As a result, 2011 opened with 95 vacancies – and with a needless bottleneck of nominations that delayed confirmation votes for all nominees down the line. With Republicans preventing the Senate from confirming even consensus nominees, it counted as a major accomplishment if the number of vacancies dipped into the low 80s, or even the 70s, as it sometimes did.

As a result, at the beginning of this year, our federal court system was suffering from 92 vacancies. And now? As of September 21, we’re down to 57 circuit and district court vacancies, just a few more than when Obama took office. This is a dramatic and long overdue drop.

Supreme Court and Circuit Courts:
Undoing the Damage of the Bush Years

Our Constitution and our laws protect our right to vote, to have a workplace free of discrimination, to get married, to make our own reproductive decisions, to hold corporations accountable when they unlawfully injure or cheat us, and to have a voice in our democracy. But those rights don’t mean anything if we don’t have effective courts – and judges – to vindicate them when they are impinged.

Knowing the important role federal courts play in shaping our laws and guaranteeing – or frustrating – our basic rights, President Bush and his supporters set out to put as many far right ideologues on the federal appellate courts as possible. The most controversial of his court nominees are busy re-making law across the land.

Most notoriously, John Roberts and Samuel Alito have joined with Reagan and Bush-41 nominees Antonin Scalia, Clarence Thomas, and Anthony Kennedy to give hard-right ideologues a frequent 5-4 majority on the Supreme Court. They have regularly bent the law and confounded logic in order to rule in favor of the powerful in case after the case, rewriting our Constitution and federal laws. Citizens United, Shelby County, and Hobby Lobby are just a few of the growing number of cases where they have used the federal bench as a platform to transform the country to fit their personal political ideologies, notwithstanding what the Constitution and our laws actually say.

While the Supreme Court is extremely important and well known, it only hears around 75 cases a year. Most Americans in federal courts have their cases decided at the district or circuit level. Circuit court rulings have an enormous impact on the law, and only a tiny portion of them are reconsidered at the Supreme Court. That is why George W. Bush and his partisans spent so much effort to confirm ideologues like Janice Rogers Brown, who now holds a lifetime position on the D.C. Circuit. She wrote a 2012 opinion holding that graphic warnings on cigarette packages violate the tobacco companies’ free speech rights. She joined a 2013 opinion striking down a National Labor Relations Board rule requiring employers to post workers’ legal rights, framing it as “compelled speech” indistinguishable from forcing schoolchildren to say the Pledge of Allegiance or requiring drivers to display a political message (Live Free or Die) on their license plates. She even defended the ideology of the discredited Lochner era in a 2012 concurrence, writing that courts’ deference to everyday economic and business regulations “means property is at the mercy of the pillagers.”

In contrast to ideologues like Brown, President Obama has named judges characterized by their fidelity to the Constitution and our laws, and the impact on ordinary Americans has been enormous. For instance, the full D.C. Circuit, which now has four Obama nominees among its eleven active judges, this month vacated a widely criticized panel ruling by two conservative judges striking down a key subsidies provision of the Affordable Care Act. The legal argument against the subsidies has been widely recognized as weak, with a transparently political motive. On the same day of the DC Circuit’s panel ruling, a unanimous panel of the Fourth Circuit had upheld the law. Obama nominee Andre Davis accurately described what the far right plaintiffs are seeking judicial allies to do:

[They want] our help to deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear.

As that one example illustrates, the D.C. Circuit is hardly the only one of our nation’s 13 federal circuit courts that looks very different today from when Bush left office. Where there was then only one circuit with a majority of its active judges nominated by Democratic presidents, today there are nine.

Especially this year, supported by the Senate rules change, progress has been remarkable. The 113th Congress has confirmed 23 circuit court judges. One would have to go back to the 99th Congress in 1985-1986 to see that many circuit court judges confirmed during a single Congress.

The past year has seen the confirmation of nominees like Michelle Friedland (9th Circuit), Pam Harris (4th Circuit), and Nina Pillard (D.C. Circuit), jurists who understand the impact of the law on everyday Americans, who cherish our constitutional principles of equality and liberty, and who don’t see the federal courts as just another part of government that can be used to enhance corporate power.

Conclusion

If the past few months have shown us anything, it is this: Standing up to bullies works. The White House has made judicial nominations that it can be proud of, and Senate Democrats have overcome years of Republican obstruction to get these nominees confirmed. Despite the GOP’s herculean efforts to prevent President Obama from exercising the powers he was elected – and re-elected – to use, he is successfully restoring balance to the nation’s courts. For the first time, the number of courtroom vacancies is close to where it was when Obama took office, and highly qualified jurists are taking their places on our federal circuit and district courts.

And the progress isn’t over. An additional 16 judicial nominees have been fully vetted and approved by the Judiciary Committee and are currently eligible for a floor vote – a floor vote that could have been held before the Senate left town for the elections. Several more have had hearings and should be ready for consideration by the Committee and the full Senate during the lame duck session that is scheduled to begin on November 12. And the White House just sent additional nominees to the Senate that could easily have hearings and a Committee vote during the lame duck session as well. There is absolutely no excuse for not holding confirmation votes on any of these committee-approved nominees by the end of this Congress.

During the last two years of the Obama Administration and the years that follow, we can be sure of certain things: The courts will remain critically important, and progressives will have to fight hard to protect those courts and keep them functioning effectively, with judges who won’t seek to use their positions to short-circuit our most important rights.

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Right Wing Gets It: Elections Matter Because Courts Matter

For right-wing advocates, big conservative wins in the Supreme Court’s recently completed term have only confirmed the importance of electing a president in 2016 who will give them more justices in the mold of Samuel Alito and John Roberts.  The Roberts and Alito nominations, and the conservative majority created by their confirmations, represent the triumph of a decades-long push by right-wing funders, big business, conservative political strategists, and legal groups to take ideological dominion of all levels of the federal judiciary.

Right-wing groups have long made attacks on the federal judiciary a staple of their rhetoric. Many claim America’s decline began with Supreme Court rulings against required prayer and Bible readings in public schools in the 1960s. Roe v. Wade, and more recently, judicial rulings in favor of marriage equality, have been characterized as “judicial tyranny” and “judicial activism.” Of course right-wing legal groups have been pushing hard for their own form of judicial activism, and have pushed Republican presidents to nominate judges they can count on. 

As Jeffrey Toobin notes in a recent profile of presidential hopeful Sen. Ted Cruz in the New Yorker,

Conservatives like Cruz never stopped denouncing liberals for their efforts to use the courts to promote their ideological agenda, even as they began to do much the same thing themselves. The heart of Cruz’s legal career was a sustained and often successful undertaking to use the courts for conservative ends, like promoting the death penalty, lowering the barriers between church and state, and undermining international institutions and agreements.

Right-wing activists are proud of what they have accomplished, as Richard Land, long-time leader of the Southern Baptist Ethics and Religious Liberty Commission, told National Journal’s Tiffany Stanley.  As Brian Tashman reports in RWW, Land “waxed nostalgic for the days when President Bush was in office…and especially for Bush’s commitment to nominating ultra-conservative federal judges.”

 “Alito and Roberts are the gifts that keep on giving, and we would have gotten neither one of those without our involvement,” Land said, predicting that Roe v. Wade will soon be “thrown onto the ash heap of history.”

…The Supreme Court’s ruling this year in the Hobby Lobby case shows the Religious Right’s strong focus on the judiciary is paying off.  And Tony Perkins of the Family Research Council told Stanley that conservatives will continue to use the courts as part of their strategy to keep “the barbarians at bay.”

But in spite of their wins, and their success in creating the most pro-corporate Court since the New Deal, right-wing activists are nervous that some of their big wins, like Hobby Lobby and Citizens United, were 5-4 decisions. They want to pad their majority and continue their march to remake America via the courts.

The Senate

Since federal judges have to be confirmed by the Senate, right-wing groups are also using the Supreme Court in 2014 Senate campaigns. An anti-choice PAC, Women Speak Out, followed the Hobby Lobby ruling almost immediately with attacks on Mark Pryor and other Democrats for not having supported the confirmation of Samuel Alito.

On the day of the Court’s decisions in Hobby Lobby and Harris v. Quinn, North Carolina House Speaker Thom Tillis, a Republican, who is challenging U.S. Sen. Kay Hagan, a Democrat, tweeted “Today’s SCOTUS rulings were a win for our 1st Amendment freedoms, a loss for Hagan, Obama, & DC bureaucrats.”

Cleta Mitchell, a lawyer who represents right-wing groups, told the Washington Post, “These Supreme Court decisions, it’s a reminder to people on our side of the aisle of the importance of the court, and then the importance of recapturing the Senate.”

Religious Liberty ‘Hanging by a Thread’

Right-wing pundits and organizations are already ramping up their rhetoric on judges as a 2016 presidential campaign issue, with many touting the 5-4 decision in Hobby Lobby as evidence that religious liberty is “hanging by a thread.”

Rush Limbaugh went on a tirade against Hillary Clinton after she criticized the Hobby Lobby ruling:

Can I tell you the truth about the Hobby Lobby ruling?  We're in such dangerous territory in terms of losing our freedom that we cheer when five out of nine people uphold the Constitution.  We're not advancing anything, folks.  We are barely hanging on here.  …  And here comes Hillary Clinton thinking this decision is a step toward the kind of anti-women policy seen in extremist undemocratic nations is outrageous. 

The woman is either a blithering idiot or a total in-the-tank statist, maybe a combination of the two.  But this is not a step toward anything.  This is a temporary halt in the onslaught toward totalitarianism.

We're just barely hanging on.  We cheer! We conservatives stand up and cheer when we manage to get five people to see it the right way.  "Oh, my God! Oh, Lord! Thank you so much, Lord. You saved another day."  Five people out of nine, five said the Constitution means what it says.  The troubling thing to me is the four people that didn't!  Liberty and freedom are hanging by a thread here! 

That theme was echoed by the Archdiocese of Washington’s Msgr. Charles Pope:

“OK, We won. But the Hobby Lobby vote should have been 9-0. Wake up, America. Your liberty is on the line!”

It is simply outrageous that four Supreme Court Justices, and many Americans, cannot see the clear and offensive proposition of the Government in this regard…..We won today, but barely. It should have been 9–0. Wake up, America; your religious and other liberties are hanging by the thread of one vote.

Former presidential candidate Gary Bauer of American Values weighed in in similar fashion:

“While we celebrate this victory, the fact remains that four justices on the Supreme Court, including the two appointed by Obama, evidently share his narrow view of America's first freedom and were willing to trample the religious liberty of millions of Americans in order to advance their radical pro-abortion agenda.

This narrow decision, with four liberal justices eager to go the wrong way, is a stark reminder to every man and woman of faith that their religious liberty is hanging by a thread.

The Court as Right-Wing Campaign Issue for 2016

Right-wing pundits and presidential candidates frequently use the federal judiciary as an issue to excite base voters. Back in 2012, one of the most effective things Mitt Romney did to shore up his weak support among conservative activists was to name a judicial advisory team headed by Robert Bork. That year, Terence Jeffrey, who worked on Pat Buchanan’s presidential campaigns and has written for right-wing publications, wrote:

Three of the nine justices on a U.S. Supreme Court that has decided many significant issues by 5-4 votes over the past decade will turn 80 years of age before the 2016 presidential election.

The three justices are Antonin Scalia, an anchor of the court’s conservative wing, Ruth Bader Ginsburg, an anchor of the court’s liberal wing, and Anthony Kennedy, who is often the decisive swing vote in 5-4 opinions….

Bobby Jindal is among the crop of potential 2016 presidential candidates who is making an issue of the courts.  In an interview with a conservative Christian blogger during last month’s Iowa state Republican convention, Jindal suggested if Republicans take control of the Senate this year they would block additional nominees. Asked about federal judges overturning state marriage bans for same-sex couples, Jindal said, ““This shows you the importance of the November elections.  We don’t need this President putting more liberal judges on the bench.”

It is important, whether you are a lawyer or not, to understand what it means for the courts to actually apply the Constitution as opposed for them just to create new laws or to read things and just decide they are going to contradict what the other two branches of government did.  We’ve gotten away from these three separate but equal branches of government and instead we’ve got these activist judges who are overreaching. We have to recognize the problem for what it is,” Jindal added.

He emphasized the importance of elections and their impact on judicial confirmations because sometimes Constitutional amendments will correct the problem, and other times federal judges will just overrule them.

Mike Huckabee has seemingly made attacks on the judiciary a centerpiece of his campaign. In May, he called for the impeachment of an Arkansas judge who ruled in favor of marriage equality. Last year, urging Senate Republicans to block an Obama appeals court nominee, he said, “Judges can linger on for decades after a President leaves office, and a bad one can wreak havoc that echoes down the ages.”

Meanwhile, presidential contender Rick Santorum and the right-wing Judicial Crisis Network are attacking Chris Christie for not sufficiently making right-wing ideology a litmus test for his state judicial appointments.  Santorum told Yahoo News earlier this month, “To see a record as abysmal as Gov. Christie’s record in the state of New Jersey, I guarantee you that will be a red flag for most voters in the state of Iowa, but also most voters in the Republican primary.” (Earlier this month, while in Iowa campaigning for Gov. Terry Branstad, Christie said he supports the Court’s Hobby Lobby decision; he had initially declined to say whether he supported the decision.)  

The Judicial Crisis Network has also slammed Christie, saying his failure to “deliver on judicial activism” may have doomed his 2016 presidential hopes. It has created an entire website devoted to trashing Christie’s judicial record to conservative voters:  www.christiebadonjudges.com. In June, Fox News ran an op ed by JCN’s Carrie Severino using Christie’s alleged failure to appoint right-wing ideologues to the state supreme court as a way to discredit him with conservative activists.

Christie didn’t deliver on judicial activism. Has he doomed his 2016 bid?

If a candidate’s tenure as governor is his road-test for the presidency, Governor Chris Christie just flunked.

As a candidate for governor, Christie talked the talk on judges, vowing to "remake" the New Jersey Supreme Court and to transform the most activist court in the nation into one that operates under the rule of law. 

Despite having the opportunity to appoint four of seven justices on the court since taking office, Christie has repeatedly nominated individuals with no discernible judicial philosophy….

And while elected representatives must stand for re-election every few years, federal judges sit for life. 

Today’s nominee could still be playing the same tricks in 2050 or beyond.  That is why the issue of judges matters so much during presidential primaries and caucuses….

Right-wing advocates have been talking for a while about how important it is to their judicial plans not just to elect a Republican, but to elect a Republican committed to making the kind of Supreme Court nominations they want. In February, right-wing activist Mychal Massie complained that many justices nominated by Republican presidents over the past few decades did not turn out to be ideological warriors (though that is hardly the case with more recent nominees).

But forward-thinking conservatives are keenly aware that we must be concerned about the future as well, and not just because of Obama. Based on age alone, one of the primary areas of concern is that the person elected president in 2016 will potentially have at least four Supreme Court Justices to replace. Two of the potential four are liberals, so a Democrat president would simply be replacing liberals with liberals, ergo, it would be a wash. But of the other two the one is a solid Constructionist, and the other is a swing vote who has, in recent years, ruled based on Constructionism enough times that we should be concerned if a Democrat president replaces him….

As you can see, the potential for the political complexion of the High Court to be changed for decades to come should be of critical concern if a Democrat wins the presidency in 2016. But, it is myopic betise on an epic level to even for an instant believe we need not be concerned if a Republican wins. Especially if it is an establishment Republican….

With Karl Rove and Reince Priebus pulling the strings of the GOP and RNC, the Republican Party resembles a RINO theme park more than it does the Party true conservatives have supported.

With them controlling things from behind the curtain it is not just critical that the next president be “conservative” but he/she must be a legitimate conservative whose conservative bonafides are unimpeachable. It does conservatism no good to elect a Mitt Romney, John McCain, or Jeb Bush type. The 2016 election will place in office a person with the potential to change the face of SCOTUS for many decades to come. And as John Boehner, Eric Cantor, Mitch McConnell, et al. have showed us — it’s not just Democrats who are betraying us.

Religious Right leaders will certainly be keeping the issue of judicial nominations at the forefront of the 2016 campaigns. This week, George O. Wood, who heads the Assemblies of God denomination, wrote:

Moreover, we should encourage voting because elections have consequences. One of those consequences is that the president nominates judges who serve on district and appellate courts and on the Supreme Court. The U.S. Senate must then approve those nominees. It is a sad fact that no evangelical sits on the Supreme Court—even though evangelicals constitute a very large faith community in America. I suspect that at present no evangelicals could even be nominated or confirmed to a federal bench because they hold views that are pro-life and pro-traditional marriage. People in our Fellowship need to remember that when they cast a ballot, they effectively decide who will sit as a federal judge. Indirectly, they are casting a vote for or against a robust understanding of the free exercise of religion.

Barney Frank: This Year’s Midterm Elections Define Our Courts

In an op-ed printed in the Portland Press Herald this weekend, retired congressman Barney Frank offers a sharp critique of the far right Supreme Court under John Roberts. Explicitly noting the importance of the Court in defining law that affects all citizens, Frank makes clear not only that courts matter, but everyday citizens have a hand in how these courts are shaped.

Reviewing the impact of recent Supreme Court decisions — from overturning “more than 100 years of federal and state efforts to regulate the role of money in campaigns” to declaring that corporations have the right to religious freedom under RFRA—Frank states that “the court has ended this term with a barrage against laws it does not like” (emphasis added).

He continues,

…The Supreme Court is now strongly inclined to impose conservative ideology via Constitutional interpretation on a broad range of public policy. It is true that Kennedy and to some extent Roberts occasionally deviate from this, but Justice Samuel Alito has surpassed even Justices Antonin Scalia and Clarence Thomas in his ideological purity.

The relevance of this to the next two elections is very clear. Four of the sitting justices are in their late 70s or older. This means that there is a strong possibility that President Obama will have a chance to appoint another justice before his term expires, but his ability to do so will be determined not simply by the health of the justices in question, but by the composition of the U.S. Senate. The increasing partisanship in the Senate, the continued virulent influence of the tea party and recent history strongly suggest that even if a vacancy occurs, Obama will be prevented from filling it (emphasis added).

Frank refers to the unceasing Republican obstructionism and argues courts are critical for defining laws that affect Americans on a daily basis, highlighting the importance of this year’s midterm elections. As he concludes in this piece,

This makes it highly likely that among the issues that will be determined in the next senatorial and presidential election will be the ideological makeup of the Supreme Court. Voters should act accordingly.

PFAW

Richard Land: 'Alito And Roberts Are The Gifts That Keep On Giving'

National Journal is out today with a profile of the new kinder, gentler Religious Right, looking at the downfall of Richard Land’s career as a sign that the movement is turning away from aggressive culture wars and instead finding a less threatening political approach.

Reporter Tiffany Stanley interviewed Land, a former top Southern Baptist Convention official, who waxed nostalgic for the days when President Bush was in office…and especially for Bush’s commitment to nominating ultra-conservative federal judges.

“Alito and Roberts are the gifts that keep on giving, and we would have gotten neither one of those without our involvement,” Land said, predicting that Roe v. Wade will soon be “thrown onto the ash heap of history.”

The Religious Right has found great success in rallying its supporters against the menace of “activist judges” while stressing the importance of putting “strict constructionists” on the bench. Even during Mitt Romney’s failed presidential bid, many far-right activists told voters not to mind Romney’s apparent attempts to move to the center since he promised to appoint hard-line conservative judges.

The Supreme Court’s ruling this year in the Hobby Lobby case shows the Religious Right’s strong focus on the judiciary is paying off. And Tony Perkins of the Family Research Council told Stanley that conservatives will continue to use the courts as part of their strategy to keep “the barbarians at bay.”

“I love the guy!” Land says. In his office, he gets up from the conference table, goes searching for his cell phone, and pulls up a photo of W. and members of the Land family—his wife, two daughters, and son-in-law—at the Bush Library, which they visited while they were in Dallas for a wedding.

Land proved a valuable presidential ally. When Bush called for preemptive action against Saddam Hussein in Iraq, he was one of the few religious leaders to provide cover, writing a letter supporting the president’s plan with his version of just-war theory. In 2003, after Bush signed the Partial-Birth Abortion Ban Act into law, Land joined Falwell and other ministers in the Oval Office, where they prayed with the president. In 2004, Land launched the “I Vote Values” campaign, a mammoth get-out-the-vote operation, which distributed half a million voter guides to churches and included a cross-country tour in an 18-wheeler. According to exit polls, Bush won voters who said their top concern was “moral values” by 80 percent to 18 percent.



By his account, the alignment of religious conservatives and the GOP happened when Republicans more readily took on the antiabortion mantle: “What I’ve always said is … we’re going to be values voters, we’re going to vote our values and our beliefs and our convictions, and if that makes abortion a partisan issue, then shame on the Democrats.” He pushed for a commitment from the GOP so evangelicals would not just be another voting bloc but a constituency whose concerns were a priority. “One of my goals was to make certain that evangelicals weren’t used by the GOP in the way blacks were used by the Democratic Party,” he says.

And it’s undeniable that the alliance with George W. Bush carried benefits for evangelicals. Look no further than the Supreme Court, Land points out. “Alito and Roberts are the gifts that keep on giving, and we would have gotten neither one of those without our involvement,” he says. Land predicts that, if he lives out a natural lifespan, he will see Roe v. Wade “thrown onto the ash heap of history.”



The Hobby Lobby case is in many ways a model for the new strategy being pursued by the Religious Right. It represents a way to engage in politics that is less aggressive than the tactics of the previous generation of believers. Back then, the key phrase was “family values”; now, it is “religious liberty.” You see it everywhere—from contraception court cases to legislation to think-tank conferences.



“We’re not unrealistic,” says Perkins of the Family Research Council. “Our focus is more keeping the barbarians at bay, really.” His organization has started working more at the state level on freedom-of-expression laws. “We kind of saw that coming about three years ago and began shifting a lot of our emphasis on religious liberty.”

Samuel Alito: A Movement Man Makes Good On Right-Wing Investments

Supreme Court Justice Samuel Alito ended this Supreme Court session with a bang, writing the majority opinion in two cases that gave for-profit corporations the right to make religious liberty claims to evade government regulation and set the stage for the fulfillment of a central goal of the right-wing political movement: the destruction of public employee unions.

Unpacking Hobby Lobby & Other SCOTUS Decisions: PFAW Member Telebriefing

Yesterday, People For the American Way members participated in a special telebriefing to discuss the Supreme Court term that wrapped up this Monday and to unpack some of the critical decisions handed down by the Court this year. The call, which was kicked off by PFAW President Michael Keegan and moderated by Director of Communications Drew Courtney, featured Senior Fellows Jamie Raskin and Elliot Mincberg, as well as Executive Vice President Marge Baker.

Discussing Burwell v. Hobby Lobby, Raskin explained the case and the damaging implications of the 5-4 decision. Highlighting the “extreme and extravagant” claim made by Hobby Lobby that its religious rights were violated, Raskin described the court’s decision that the Religious Freedom Restoration Act covers “closely held” corporations and noted that this creates a “dangerous expansion of corporate personhood.” Raskin described how this exemplifies the Court in the Citizens United era, where the far right Justices regularly find ways to rule so they can enhance the power of corporations.

Mincberg also provided background on RFRA and explained how the law was distorted and expanded in this decision far beyond what anyone had in mind when it passed by an enormous bipartisan majority 20 years ago.

Members wanted to know what actions can be taken to help address the imbalance in the Court and the troubling decisions made by the Roberts’ Court in the last few years. Baker addressed the issue of rebalancing the Court, emphasizing the importance of presidential elections on the Court’s make-up.

The telebriefing also covered the recent decisions in McCullen v. Coakley, NLRB v. Noel Canning, and Harris v. Quinn, underscoring the Court’s decisive move to the right.

Listen to the full audio of the telebriefing for more information.

 

PFAW

Larry Klayman Is Determined 'To Get The Truth' On Whether Obama Is 'Blackmailing' John Roberts

Larry Klayman may have absolutely no evidence to prove that President Obama used NSA surveillance to blackmail Chief Justice John Roberts into writing the Supreme Court’s decision upholding the Affordable Care Act, but the conservative legal activist claims he is just asking the question and pledges to “get the truth on this.”

And if Obama is (maybe) blackmailing Roberts, Klayman said in an interview with WorldNetDaily radio host Aaron Klein this weekend, then you know Hillary Clinton will probably take it to the next level.

“Unfortunately, there’s no way to sue the Supreme Court for decisions that it makes. There should be, and there should be a way to remove these justices for making decisions like that,” explained Klayman, the founder of Judicial Watch who now heads Freedom Watch.

“But let’s take this possibility: Why did Chief Justice Roberts at the eleventh hour change his decision? He was going to side with the other justices and find that Obamacare was unconstitutional. Is it something that was dug up on him by the NSA or the CIA? Was that used against him to blackmail him?

“These are the kinds of things [the government is doing], and that’s why it’s so scary what’s going on with the NSA and the CIA. It can happen in a democracy. So that may help explain it, and perhaps we can reach these issues through the NSA cases that we brought, the NSA/CIA cases. I intend to get the truth on this.”



“If the government wants to destroy you, it has to access the information that it can use to do it, and that’s why this is so frightening. [It has] a greater capability than King George III had in 1776. The tyranny is greater today than it was at the time of the American Revolution.”

Regarding the status of the legal cases against government spying, Klayman said, “The bottom line is this: Our so-called government is trying to delay final adjudication of the constitutionality of the CIA and NSA’s programs, and as a ruse, President Obama is claiming he wants to make modifications to those programs. They’re not modifications at all.”

Klayman also said it’s not just the Obama administration citizens should be concerned about.

“Can you imagine Hillary Clinton having the power to use this?” he asked.

Postcard from Arizona to John Roberts: Money Corrupts

In a week in which the Supreme Court turned a blind eye to the reality of money corrupting politics, a story out of Arizona provides a clear example of the insidious influence of the private prison industry and its campaign contributions. 

Arizona has been at the forefront of bad prison policy and big profits for private prison companies. People For the American Way’s 2012 report, “Predatory Privatization: Exploiting Financial Hardship, Enriching the One Percent, Undermining Democracy,” explored how Arizona officials’ political and ideological commitment to prison privatization overrode good policy and common sense. Unbelievably, faced with evidence that privately run prisons were costing taxpayers more, not less, than state-run prisons, some legislators moved to stop the state from collecting the data.

This February, we wrote about Politico’s coverage of the private prison racket. “Companies that manage prisons on our behalf have abysmal records,” author Matt Stroud asked, “So why do we keep giving them our business?” One answer is that the industry spends a fortune on lobbying and campaign contributions.

This week’s story shows how those investments can pay off. According to the Arizona Republic, House Appropriations Committee Chairman John Kavanaugh tried to slip a last-minute $900,000 earmark for private prison giant GEO Group into the state budget. The company is already expected to get $45 million this year under contracts with the state that guarantee the company at least a 95 percent occupancy rate, “virtually ensuring the company a profit for operating its prisons in Arizona.” The state Department of Corrections said the extra money isn’t needed, but Kavanaugh heard otherwise from the company’s lobbyists. GEO executives gave Kavanaugh more than $2,500 in 2012.

The good news is that the Senate Appropriations Committee dropped the extra funding “following an uproar of criticism from Arizonans.”

PFAW

How Much Congressional Representation Does Billionaire Shaun McCutcheon Have?

This post originally appeared on the People For blog.

Chief Justice Roberts caps his opinion in McCutcheon v. FEC by waxing eloquently about the need to ensure that elected officials are responsive to the people. This and other cases have described campaign contributions as a way to promote such responsiveness. But considering that this case is about a non-constituent buying influence in elections across the country, the passage's repeated references to constituents seems strangely out of place:

For the past 40 years, our campaign finance jurisprudence has focused on the need to preserve authority for the Government to combat corruption, without at the same time compromising the political responsiveness at the heart of the democratic process, or allowing the Government to favor some participants in that process over others. As Edmund Burke explained in his famous speech to the electors of Bristol, a representative owes constituents the exercise of his "mature judgment," but judgment informed by "the strictest union, the closest correspondence, and the most unreserved communication with his constituents." Constituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials. (emphasis added, internal citations removed)

Shaun McCutcheon – whose contributions are at issue in this case – told the Court that he wanted to make contributions of $1,776 to each of more than two dozen different congressional candidates (as well as to various party committees) during the 2012 election cycle. It seems unlikely that he could have been a constituent of more than two dozen different members of Congress.

Obviously, people have a First Amendment right to participate in congressional races outside of where they live. But a stirring paragraph about political responsiveness to constituents hardly seems appropriate in a case that is all about political responsiveness to non-constituents.

In McCutcheon Decision, Talk of Constituents Seems Out of Place

Chief Justice Roberts waxes eloquent about responsiveness to constituents in an opinion about responsiveness to non-constituents.
PFAW Foundation

Supreme Court's McCutcheon Decision Is Great News For Billionaires

This post originally appeared on the People For blog.

The Supreme Court's McCutcheon opinion, released this morning, is another 5-4 body blow to our democracy. To justify striking down limits that cap aggregate campaign contributions during a single election cycle, the Roberts Court ignores the way the world really works and makes it far more difficult to justify much-needed protections against those who would purchase our elections and elected officials.

Americans are deeply concerned that control of our elections and our government is being usurped by a tiny sliver of extremely wealthy and powerful individuals (and the corporations they control). That is not the democracy that our Constitution established and protects. The enormous impact of money in politics can destroy a democracy, undermining its foundations by disconnecting elected officials from the people they are supposed to serve and eroding the trust of the people in their system of government.

But the Roberts Court today stressed that campaign contributions can be justified under the First Amendment only if they address "quid pro quo" corruption – i.e. bribery – despite contrary pre-Citizens United holdings with a broader and more realistic vision. A democratic system rotting at its core – a government of, by, and for the wealthy – is not corrupt in their eyes.

If a wealthy person gives millions of dollars to a party (distributed to the party's multiple candidates and PACs across the country), he clearly exercises enormous influence over the laws that get passed. What the voters want becomes far less relevant, because it's the billionaire whose money is vital to getting elected. A government where elected officials allow a few plutocrats to have enormous access and influence over their policies is not an indication of a healthy government of, by, and for the people.

As Justice Breyer write in his McCutcheon dissent:

Today a majority of the Court overrules this holding [Buckley's 1976 upholding of aggregate limits]. It is wrong to do so. Its conclusion rests upon its own, not a record-based, view of the facts. Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of protecting the political integrity of our governmental institutions. It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate's campaign. Taken together with Citizens United v. Federal Election Comm'n, 558 U. S. 310 (2010), today's decision eviscerates our Nation's campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.

Americans are organizing around the country to restore our democracy in light of Citizens United and other dangerous court opinions. Today's McCutcheon opinion gives us another reason to rally.

Last year, People For the American Way Foundation released an analysis of McCutcheon within the context of the Supreme Court's past rulings on campaign finance.

Watch Out, the Roberts Court is Back in Session

The arch-conservative Roberts Court begins a new term that could affect vast areas of American law.
PFAW Foundation

Emergency Petition to Save the Voting Rights Act

Last year, the Supreme Court severely weakened the Voting Rights Act & voter suppression laws were passed across the country. This year, we need to fix that. Add your name to the fight and tell Congress to act without delay to strengthen the Voting Rights Act!

Representative John Lewis: "There's other bridges to walk across"

The Supreme Court's ruling in Shelby is a setback, or as Representative Lewis put it to ABC's Jeff Zeleny earlier today: "What the Supreme Court did was to put a dagger in the very heart of the Voting Rights Act of 1965." But it's also part of the voting rights bridge that we must continue fighting to get across.
PFAW Foundation

In Voting Rights Decision, Roberts Rewrites the 15th Amendment

The Court usurps Congress' constitutional authority and undercuts the Voting Rights Act.
PFAW Foundation

Study: Roberts and Alito Most Pro-Corporate Justices in 65 Years

We write frequently about the extraordinarily pro-corporate leanings of the current Supreme Court, where the Justices bend the law and twist logic in order to rule in favor of large corporate interests and against the rights of individuals harmed by those interests. In the past week, two new studies have provided powerful numbers to back up the trend.

In a report released on Thursday, the Constitutional Accountability Center found that the corporate lobbying group U.S. Chamber of Commerce has won a stunning two-thirds of the cases that it has been involved with before the Roberts Court. And this weekend, The New York Times reported on a new study from the Minnesota Law Review that found that the current Supreme Court’s five conservative justices have sided with corporate interests at a greater rate than most justices since World War II. In fact, Chief Justice John Roberts and Justice Samuel Alito, both George W. Bush nominees, are the two most pro-corporate Supreme Court justices to sit in the past 65 years:
 

The Times writes:

But the business docket reflects something truly distinctive about the court led by Chief Justice John G. Roberts Jr. While the current court’s decisions, over all, are only slightly more conservative than those from the courts led by Chief Justices Warren E. Burger and William H. Rehnquist, according to political scientists who study the court, its business rulings are another matter. They have been, a new study finds, far friendlier to business than those of any court since at least World War II.

In the eight years since Chief Justice Roberts joined the court, it has allowed corporations to spend freely in elections in the Citizens United case, has shielded them from class actions and human rights suits, and has made arbitration the favored way to resolve many disputes. Business groups say the Roberts court’s decisions have helped combat frivolous lawsuits, while plaintiffs’ lawyers say the rulings have destroyed legitimate claims for harm from faulty products, discriminatory practices and fraud.

Published last month in The Minnesota Law Review, the study ranked the 36 justices who served on the court over those 65 years by the proportion of their pro-business votes; all five of the current court’s more conservative members were in the top 10. But the study’s most striking finding was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush.

PFAW

Tea Party Nation Wonders if John Roberts was 'Blackmailed' to Uphold Health Care Reform

Tea Party Nation president Judson Phillips sent members an email this morning entitled: ‘Was Chief Justice John Roberts Blackmailed To Support ObamaCare?’ Obviously, we had to check this out, and lo and behold it links to a tea party message board post about how Chief Justice Roberts changed his decision on the health care reform law after he was “blackmailed” by President Obama as part of an illegal adoption and child trafficking scheme.

It is now quite evident that the two Children were from Ireland. Even wikipedia references these adoptions at the time of Roberts' confirmation, and indicates that the children were of Irish birth.

However Irish law 1) prohibits the adoption of Children to non-residents, and 2) also does not permit private adoptions, but rather has all adoptions go through a public agency.

Evidently Roberts arranged for this adoption through some sort of trafficking agency, that got the children out of Ireland and into that Latin American country, from which they were adopted, thereby circumventing two Irish laws -- entirely illegal, but perhaps quasi-legitimized by the birth mothers (two) transporting the children out of Ireland.

Undoubtedly Roberts and his wife spent a great deal of money for this illegal process, circumventing Irish laws and arranging for the transit of two Irish children from separate birth-mothers to a foreign nation. Come 2012, those two children have been with the Roberts' for roughly 10 years, since they were adopted as "infants".



Roberts is not deserving of any sort of respect here, and is only the latest example of people in position believing themselves above the law, beyond scrutiny and exempt from repercussion.

It all now makes sense.

The circumstances of these two adoptions explain not only why this would be overlooked by an overall sympathetic media, but also why a sitting Chief Justice of the U.S. Supreme Court would not want this information to become public fodder well into his tenure. Its release and public discussion would discredit Roberts as an impartial judge of the law, and undoubtedly lead to his impeachment.

This also explains why Roberts would have a means to be blackmailed, and why that leverage would still exist even after the institution of ObamaCare.

... And it has led to flipping the swing-vote on ObamaCare, which fundamentally changed the relationship between citizen and government, making us de facto property of the state, with our relative worth in care and maintenance able to be determined by the government. Essentially it was a coup without firing a shot, much less needing even an Amendment to the Constitution.

And it is consistent with Obama's Chicago-style politics, that has previously involved opening other sealed records in order to win election.

Sotomayor Debunks Right-Wing Line on Courts

In an interview with “60 Minutes” this weekend, Supreme Court Justice Sonia Sotomayor gave one of the best debunkings I’ve seen of the Right's line that a judge should be no more than an umpire, exercising no independent judgment and facing no difficult questions. Using the politically neutral example of the 3rd Amendment, Sotomayor explains how even the most seemingly clear-cut parts of the Constitution still require interpretation by judges and Justices:

Chief Justice John Roberts made headlines when, in his confirmation hearings, he said that a judge’s job was merely to call “balls and strikes.” The comforting words of his analogy hide the fact that most of the issues the Supreme Court approaches are complex and require human judgment – that’s why they reach the Supreme Court in the first place. They also conveniently obscure the fact that the conservative bloc on the Court is plenty influenced by their own ideology – there are plenty of examples here.

Justice Elena Kagan, in her confirmation hearings, gave another great rebuke to Roberts’ flawed baseball analogy. “We know that not every case is decided 9-0,” she said, “and we know that’s not because anybody’s acting in bad faith. It’s because reasonable people can reasonably disagree sometimes. So in that sense, the law does require a kind of judgment, a kind of wisdom. “

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PFAW

Endorsements Cite Supreme Court

Overwhelming majority of endorsements cite the Supreme Court as an enormous contributing factor to keeping President Obama in office.
PFAW
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