People For the American Way has been stressing the enormous importance of the Supreme Court in the next election, emphasizing that if Mitt Romney is elected, he has promised to nominate extreme right-wing judges who will limit our civil liberties and rescind equality measures. In a new ad, Massachusetts Senate candidate Elizabeth Warren echoes these concerns, warning that a Senate dominated by Republicans has the potential to approve a justice that would help overturn Roe v. Wade. Warren’s opponent Scott Brown has already voiced his support for Justice Antonin Scalia, naming the ultra-conservative judge as his favorite on the Supreme Court. We cannot afford to elect candidates like Mitt Romney or Scott Brown, who are sure to nominate and confirm justices that will take us back in time and turn back the progress we have made on behalf of women’s rights, worker’s rights, voting rights, and more.
A conservative George H. W. Bush nominee on the 2nd Circuit Court of Appeals authored a strong decision today declaring section 3 of the discriminatory Defense of Marriage Act unconstitutional. Earlier this year, a federal district court judge in Connecticut, that one a Bush-43 nominee, also declared the law unconstitutional. So did a unanimous panel of the First Circuit Court of Appeals.
The case before the 2nd Circuit was that of Edith Windsor, an octogenarian in New York who lost her wife in 2009; they had been together for forty years. The New York Civil Liberties Union, which is representing Windsor, described her case in a press release this summer:
Windsor and Spyer lived together for more than four decades in Greenwich Village. Despite not being able to marry legally, they were engaged in 1967. In 1977, Spyer was diagnosed with multiple sclerosis, and Windsor helped her through her long battle with that disease. They were finally legally married in May 2007.
When Spyer died in 2009, she left all of her property to Windsor. Because they were married, Spyer's estate normally would have passed to Edie as her spouse without any estate tax at all. But because of DOMA, Windsor had to pay more than $363,000 in federal estate taxes. Payment of the federal estate tax by a surviving spouse is one of the most significant adverse impacts of DOMA since the amount owed, as was true in this case, is often quite substantial.
"Edie Windsor, who recently celebrated her 83rd birthday, suffers from a serious heart condition," said Roberta Kaplan, a partner at Paul Weiss and counsel to Windsor. "Because the District Court's ruling in her favor is entitled to an automatic stay of enforcement, Edie cannot yet receive a refund of the unconstitutional estate tax that she was forced to pay simply for being gay. The constitutional injury inflicted on Edie should be remedied within her lifetime."
The 2nd Circuit opinion leaves no ambiguity as to the discriminatory harm done by section 3 of DOMA. Ian Millhiser at Think Progress pulls out this paragraph of the decision:
[W]e conclude that review of Section 3 of DOMA requires heightened scrutiny. The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include: A) whether the class has been historically “subjected to discrimination,”; B) whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,” C) whether the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group;” and D) whether the class is “a minority or politically powerless.” Immutability and lack of political power are not strictly necessary factors to identify a suspect class. Nevertheless, immutability and political power are indicative, and we consider them here. In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.
That’s an unambiguous indictment of DOMA and of all laws that discriminate against gays and lesbians. Nevertheless, House Speaker John Boehner, who has now spent $1.5 million taxpayer dollars in an attempt to defend DOMA, is likely to appeal the case to the Supreme Court. But the easier option, as PFAW president Michael Keegan points out in a statement today, would be for Congress just to repeal DOMA. It’s done enough harm to millions of people like Edie Windsor, and its effects will become clearer as more and more gay and lesbian couples are allowed to marry, and find that their marriages aren’t recognized by the federal government.
Yesterday morning, the Supreme Court heard oral arguments in Fisher v. University of Texas, a landmark case that could determine whether public colleges and universities can consider race as one of many factors when making admission decisions. Plaintiff Abigail Fisher, a white woman, alleges that the University of Texas discriminated against her based on her race when she was not admitted to the University of Texas in 2008. Should the Supreme Court choose to rule in favor of Fisher and rescind equality measures that were upheld by the Court just nine years ago in Grutter v. Bollinger, public colleges and universities would lose their ability to ensure a diverse student body.
People For the American Way, along with many proponents of affirmative action, rallied in front of the Supreme Court, stressing the necessity of diversity and inclusiveness in higher education. Champions of fairness and racial equality spoke, reflecting upon their own educational triumphs as a result of affirmative action and warning against a color-blind perspective that the Supreme Court may uphold. Speakers emphasized that individuals are multi-faceted, and cannot be judged solely by an SAT score or a GPA.
Speakers at the rally emphasized that a student must be evaluated wholly as an individual. A person’s race and ethnicity is part of their background and part of what they offer to the diverse university community, just like their athletic abilities or legacy family roots.
While people of color have made great strides in closing the education gap, disparities in higher education remain widespread. Colleges and universities must foster diversity and represent the vast spectrum of aspiring students and professionals. This will only enhance ingenuity, bridge the racial divides of our history, and preserve America’s platform of fairness and justice.
This is Justice Antonin Scalia, who Mitt Romney and Massachusetts Sen. Scott Brown both hold up as their model Supreme Court Justice, discussing his approach to some thorny Constitutional issues:
"The death penalty? Give me a break. It's easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state”
Looking forward to seeing your rights eliminated with “ease” by the Supreme Court? We have just the candidate for you.
The U.S. Courts website posted an update this morning that Judge Richard Cebull, Chief U.S. District Judge for Montana, will take senior status in March of 2013. Cebull is currently the subject of a misconduct review by the Judicial Council of the U.S. 9th Circuit Court of Appeals. Senior status is a form of semi-retirement where a judge vacates his or her seat and continues to hear some cases, but typically not a full caseload. The status provides a full salary for part-time work.
People For the American Way president Michael Keegan released the following statement:
“Judge Cebull should resign or retire, not take senior status. He used his official email account to send an incredibly disgusting and racist email. When asked why, he said he sent it because he opposes the President.
“Americans expect the courts to be fair, impartial, and open to all. Cebull clearly demonstrated that he does not have the temperament to serve as a federal judge, period.
“Cebull may hope that taking senior status before the misconduct review concludes will help him avoid sanction. But he should be held accountable by the 9th Circuit regardless of his status.
“Taking senior status is a half-measure that allows Cebull to continue hearing cases. That’s not appropriate. He should resign or retire immediately.”
Survey finds high court is a significant factor for voters
A newly released Hart Research Associates poll indicates that Americans fear that if Mitt Romney is elected president, he will appoint Supreme Court Justices who will shift the court even more in favor of big business at the expense of everyday Americans. Hart also found that the Supreme Court is a significant factor for voters in the upcoming election.
The poll was conducted for the Alliance for Justice Action Campaign, The Leadership Conference on Civil and Human Rights and People for the American Way. It consisted of a national online survey of 1,007 registered, likely voters between August 24-30, 2012 and two focus groups in Philadelphia
It found that 63 percent of all voters, and more than half of independent voters and presidential “swing” voters, say the issue of who will serve on the Supreme Court is an important consideration in their vote this year. According to the survey, what most concerns voters – a full 54 percent --is their worry that Romney will nominate justices who will consistently favor corporations over ordinary Americans.
In contrast, voters believe that Obama is more likely to choose justices who “will protect the rights of average people, not just the wealthy and powerful.” And they believe President Obama is much more likely to appoint justices who “would uphold the progress we have made on civil rights and women’s rights.” The voters surveyed were also concerned about Romney’s opposition to Supreme Court decisions favoring women’s rights, including Roe v. Wade, Indeed, 59 percent of all voters, and 62 percent of swing voters, say Romney’s belief that women have no constitutional right to have an abortion gives them less confidence in Romney.
“If the next president fills even one vacancy on the Supreme Court, he could change the court, and America, for decades,” said Nan Aron, President of the Alliance for Justice Action Campaign. “This poll makes clear that the American people don’t want the president to further shift the court toward corporate special interests for a generation or more.”
“Americans are convinced that a Romney Court would make it harder for women and minorities to lead their day-to-day lives,” said Nancy Zirkin, Executive Vice President of The Leadership Conference on Civil and Human Rights. “As the Court considers affirmative action and same-sex marriage, its role as the last arbiter of equality for millions of disadvantaged Americans is clear. And Romney will have to quell these fears if he ever hopes to gain the trust of these communities.”
“We pick a president for four years, but he picks Supreme Court justices for a lifetime,” said Michael Keegan, President of People For the American Way. “This polling shows that Americans are concerned about how this election will affect the future of the Supreme Court, and know that a Mitt Romney presidency would skew the Court ever further to the Right.”
Sixty percent of all voters, and 63 percent of swing voters said they had less confidence Romney would appoint the right kinds of justices to the Supreme Court when told that Romney favored the Citizens United decision, which led to opening the floodgates to massive corporate campaign contributions. Voters are influenced as well by a number of recent 5-4 decisions siding with corporations over people, including Wal-Mart over its female employees, AT&T over its customers, and the case decided against Lily Ledbetter that led to the Lily Ledbetter Fair Pay Act.
A full memo on the poll and focus groups is below. A pdf of the memo is available here.
TO: Interested Parties
FROM: Guy Molyneux, Hart Research
DATE: September, 2012
RE: The Supreme Court and 2012
On behalf of Alliance for Justice Action Campaign, The Leadership Conference on Civil and Human Rights, and People for the American Way, Hart Research has conducted opinion research on the potential impact that the issue of Supreme Court nominations could have on the 2012 presidential election. A national online survey of 1,007 registered, likely voters was conducted August 24-30, 2012, followed by two focus groups in Philadelphia.
1) The issue of Supreme Court nominations is an important voting consideration for registered voters, including a substantial portion of swing voters.
Fully 63% of voters say that the issue of nominating justices to the Supreme Court will be an important consideration in their voting this year. That includes 30% who say “very important” consideration. As we would expect, strong partisans assign the greatest weight to the issue, but substantial numbers of independent voters (55%) and presidential swing voters (54%) also report a significant level of concern about the Supreme Court issue. Moreover, after survey respondents hear information about Mitt Romney’s positions on judicial issues and his model for judicial nominations, they rate the importance of the Court even more highly: 71% say it will be an important voting consideration, including 39% (a 9-point increase) who say very important.
2) Voters have more confidence in President Obama than Mitt Romney with respect to Supreme Court nominations.
Voters say that they have more confidence in Barack Obama (46%) than Mitt Romney (41%) to select good federal judges and Supreme Court justices. Obama is trusted on judicial nominees much more than Romney among the voters who will likely determine the outcome of the presidential election. Independent voters prefer Obama by an 8-point margin (39% to 31%), and Obama’s advantage grows to an impressive 18 points (42% to 24%) among presidential swing voters (those undecided or weakly committed to a candidate). Women in the center of the electorate strongly prefer Obama, as he enjoys a 19-point edge with independent women (43% to 24%) and a 26-point advantage among swing women (44%-18%).
The president’s advantage over Romney rests on two main elements. First, voters believe Obama (61%) is much more likely than Romney (39%) to appoint justices who “would uphold the progress we have made on civil rights and women’s rights.” Second, most voters trust Obama (59%) rather than Romney (41%) to choose justices who “will protect the rights of average people, not just the wealthy and powerful.” Among swing voters, Obama enjoys commanding advantages of 55 points and 49 points, respectively, on these two dimensions.
3) The most compelling criticism of Mitt Romney regarding the Supreme Court is that his nominees will be biased in favor of corporations over average Americans.
The survey results reveal that what most concerns voters about the prospect of Mitt Romney nominating future justices is the notion that his nominees will consistently favor corporations over ordinary Americans. Fully 54% worry that Romney will appoint this kind of justice, far more than any other single concern (for example, 43% worry that Romney’s justices will “turn back the clock on civil rights and women’s rights”). Similarly, when voters are asked which of several criticisms of Romney concern them the most, the prospect of pro-corporate justices is the top choice for swing voters (30%), far ahead of limiting legal abortion (17%), turning back the clock on rights (17%), and other factors. And later in the survey, after voters have learned about Romney’s positions on a range of judicial issues, swing voters say their single biggest concern about Romney’s justices is they will favor corporate interests over average Americans (followed by the similar idea that they will “favor millionaires over the middle class”).
4) The single best “proof point” for the claim that Romney’s nominees will favor corporations is his support for Citizens United, which has already led to corporations and billionaires spending millions of dollars on negative political ads this year. Other powerful evidence includes the AT&T, Wal-Mart, and Ledbetter cases.
The research findings indicate that the single best way to demonstrate that Romney would appoint pro-corporate justices is to focus on his support for the Court’s decision [Citizens United] which opened the door for corporations and the wealthy to spend unlimited amounts to influence elections. Linking that decision to what citizens are already experiencing – a huge number of negative political ads funded by corporations and individuals – gives this issue real salience now.
Mitt Romney does not have an extensive track record of taking positions on most other Supreme Court cases, but he has been clear about the kind of justices he would appoint: judges “in the mold of Clarence Thomas, Antonin Scalia, and Samuel Alito.”
As seen in past research, the AT&T, Wal-Mart, and Ledbetter decisions all trouble voters. Here is how they were described in the survey, each of them raising significant concerns about Romney:
5) The concern that Romney will appoint anti-choice justices also has power with many voters.
Both the survey and focus groups reveal that Romney’s commitment to appoint anti-choice justices concerns many voters. In the survey, 59% of voters (and 62% of swing voters) say Romney’s belief that women have no constitutional right to have an abortion gives them less confidence in Romney.
6) Voters’ recognition of the importance of judicial nominees in evaluating Romney and Obama is greatly heightened when we remind them that justices serve for life.
On CNN’s website today, legal analyst Jeffrey Toobin laments out how small a role the Supreme Court has played in the presidential election so far. He writes:
With a little more than a month to go, it's not too late to ask the candidates to take a stand on their plans for the court. The president has already had two appointments, and he named Sonia Sotomayor and Elena Kagan. But what does Obama, a former law professor, think about the court? Does he believe in a "living" Constitution, whose meaning evolves over time? Or does he believe, like Justices Scalia and Thomas, that the meaning of the document was fixed when it was ratified, in the 18th century.
By the same token, what kind of justices would Romney appoint? Who are his judicial role models? Romney has praised Chief Justice John Roberts, but is the candidate still a fan even after the chief voted to uphold the ACA?
No one is asking these questions. But there are few more important things to know about our current and future presidents.
Toobin is absolutely right that the candidates’ plans for the Supreme Court deserve a lot more air time than they’re getting. But he’s wrong to suggest that we know nothing about what President Obama and Governor Romney have in mind for the Court.
President Obama has already picked two Supreme Court justices. Both, Sonia Sotomayor and Elena Kagan, have been strong moderates, balancing out the retro extremism of Justices Scalia and Thomas. When female Wal-Mart employees wanted to band together to sue their employer for pay discrimination, Sotomayor and Kagan stood on the side of the women’s rights, while Scalia and Thomas twisted the law to side with the corporation. When Justices Thomas and Scalia ruled that a woman harmed by a generic drug couldn’t sue the drug’s manufacturer in state court, Justices Sotomayor and Kagan stood up for the rights of the consumer.
Mitt Romney obviously hasn’t had a chance to pick a Supreme Court justice yet, but he’s given us a pretty good idea of who he would choose if given the opportunity. On his website, Romney promises to “nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas, and Alito.” After the Supreme Court’s ruling in the health care reform case, Romney announced he had changed his mind about Roberts, who declined to destroy the law while still writing a stunningly retrogressive opinion redefining the Commerce Clause.
And, of course, Romney sent a clear signal to his conservative base when he tapped Robert Bork to advise him on legal and judicial issues. Bork’s record, and what he signals about Romney’s position on the Supreme Court, is chilling:
Romney’s indicated that he would want the Supreme Court to overturn Roe v. Wade. He’s even attacked the premise of Griswold v. Connecticut, the decision that prohibited states from outlawing birth control by establishing a right to privacy.
Yes, the candidates should be made to answer more questions about their plans for the Supreme Court and the lower federal courts. But there’s a lot that we already know.
(For more, check out PFAW’s website RomneyCourt.com.)