The Senate Judiciary Committee yesterday approved the nomination of Sri Srinivasan to sit on the powerful Court of Appeals for the D.C. Circuit. There are currently four vacancies on the D.C. Circuit – and Senate Republicans have prevented President Obama from filling a single one.
The Senate GOP has been unusually cooperative with Srinivasan’s nomination, but have signaled that they will not be so friendly to future nominees to the court. Judiciary Committee ranking member Chuck Grassley is actually trying to permanently lower the number of judgeships on the court to prevent President Obama from reversing its far-right, anti-consumer, anti-worker tilt.
The Senate yesterday also confirmed William Orrick to serve on the District Court for the Northern District of California, a seat that had been officially designated a “judicial emergency” because of its overworked courts. The confirmation vote came a full eight months after Orrick was first approved with bipartisan support in the Senate Judiciary Committee.
In a Senate floor speech Wednesday, Sen. Elizabeth Warren of Massachusetts discussed the Senate GOP’s extraordinary obstruction of federal judicial nominees, noting the high level of officially-designated “judicial emergencies,” which has risen by 30 percent since the beginning of the year.
The Founders of our Republic gave to the President the task of nominating individuals to serve and gave us the responsibility to advise on and consent to these appointments. For more than 200 years this process has worked.
Presidents over the years have nominated thousands of qualified men and women who were willing to serve in key executive branch positions.
The Senate has considered nominations in a timely fashion and taken up-or-down votes. Of course, there have been bumps along the way, but we have never seen anything like this. Time and again, Members of this body have resorted to procedural technicalities and flatout obstructionism to block qualified nominees.
At the moment, there are 85 judicial vacancies in the U.S. courts, some of which are classified as ``judicial emergencies.'' That is more than double the number of judicial vacancies at the comparable point during President George W. Bush's second term. Yet right now there are 10 nominees awaiting a vote in the Senate, and they have not gotten one.
Senate Republicans like to blame the judicial vacancy crisis on President Obama, whom they say has not been quick enough to nominate judges. Sen. John Cornyn of Texas ran into the fallacy of this talking point last week, when he was called out for blaming the president for Texas vacancies that Cornyn himself was responsible for.
The president continued his steady pace of federal judicial nominations last night, nominating four women to federal judgeships in Utah, Tennessee, New York and Mississippi.
UPDATE: The White House points out in a blog post today that President Obama has now nominated more district court judges than had President Bush at this point in his presidency.
WASHINGTON – Marge Baker, Executive Vice President of People For the American Way, issued the following statement on the Senate Judiciary Committee’s unanimous approval today of Sri Srinivasan to sit on the Court of Appeals for the D.C. Circuit:
“The Senate Judiciary Committee’s bipartisan approval of Sri Srinivasan is an important step toward ending the extraordinary vacancy crisis on the nation’s second most influential court.
“The seat on the D.C. Circuit that Srinivasan would fill has been open for nearly five years and is one of an astonishing four vacancies on the 11-member court. Senate Republicans have prevented President Obama from filling even one of those vacancies in an effort to preserve the court’s anti-worker and anti-consumer tilt. Republicans twice filibustered the nomination of the eminently qualified Caitlin Halligan and even delayed a committee hearing on Srinivasan for nearly ten months.
“Senate Republicans cannot hide behind their friendly treatment of Srinivasan as they obstruct future nominees to the D.C. Circuit. Republicans are pressing the claim that there’s no need to fill any more vacancies on this critically important court. This argument is false, hypocritical, and clearly politically motivated. We fully expect Srinivasan to be promptly confirmed by the full Senate and will continue to push for the nomination and swift confirmation of strong jurists to the remaining seats on the D.C. Circuit.”
Americans of all political stripes should be outraged at the recent revelation that the Tea Party was unfairly targeted by the IRS before last year's election. The IRS should never base its decisions on political preferences or ideological code words, regardless of what bureaucratic challenges it may face. But the lesson that the right is drawing from the IRS's misdeeds -- the lesson that threatens to dominate the public conversation about the news -- is wrong.
We're seeing a knee-jerk reaction, particularly from the Tea Party and their allies in Congress, that is threatening to turn the IRS's mistakes into an indictment of "big government" writ large. Some are already trying to tie the scandal to the Right's favorite target, Obamacare, and to the Benghazi conspiracy theory.
The danger of this frame is that it will discourage the IRS from fully investigating all nonprofit groups spending money to influence elections. And it will distract from the core problem behind the IRS's mess: the post-Citizens United explosion of undisclosed electoral spending.
Before the Supreme Court's decision in Citizens United, only a limited number of nonprofit 501c(4) groups could spend money to influence elections -- those who did not take contributions from corporations or unions. But Citizens United lifted restrictions on corporate spending in elections, setting the stage for individuals and companies to funnel unlimited money through all corporations, including c(4)s and super PACs in an effort to help elect the candidates of their choice. Spending by c(4)s has exploded since Citizens United, since the decision allowed any c(4) nonprofit corporation that didn't spend the majority of its money on electoral work to run ads and campaign for and against candidates. And c(4)s, as long as they follow this rule, don't have to disclose their donors under the laws currently in place.
The IRS, then, was forced to play a new and critical role in policing this onslaught of electoral spending. IRS officials clearly made poor choices in how to confront this sudden sea change and those mistakes should be investigated and properly addressed. But strong oversight of this new wave of spending remains critically important and clearlywithin the IRS's purview.
If we let understandable concerns about bad decisions by the IRS lead to weakening of campaign finance oversight, our democracy will be the worse off for it. Instead, we should insist that the government strengthen its oversight of electoral spending -- equally across the political spectrum. We should pass strong disclosure laws that cover all political spenders, including c(4)s. And we should redouble our efforts to overturn Citizens United by constitutional amendment and reel back the flood of corporate money that led the IRS to be in this business in the first place.
Garrett Epps writes today in The Atlantic about how the D.C. Circuit Court of Appeals, still dominated by far-right George W. Bush nominees, has been instrumental in “the long, doleful transformation of the First Amendment from an individual right of conscience into a shield against business regulation.”
We've read of the violence done to the National Labor Relations Board by the D.C. Circuit's December decision in Noel Canning v. NLRB. Having read that opinion repeatedly, I believe it does violence to the Constitution as well. The D.C. Circuit last year voided a Food and Drug Administration regulation requiring graphic warning labels on cigarette labels as a violation of tobacco companies' "free speech" rights -- to me, another grave misstep. And I feel the same way about the Circuit's decision this week in National Association of Manufacturers v. NLRB. In this case, three Republican nominees held that the First Amendment's right against "compelled speech" protects employers against an NLRB regulation requiring them to post a government poster notifying workers of their rights. The decision is another step on the long, doleful transformation of the First Amendment from an individual right of conscience into a shield against business regulation.
We posted an infographic yesterday that shows just how ideologically skewed the D.C. Circuit is. George W. Bush made a concerted effort to pack the court with judges who shared his right-wing ideology (including John Roberts, who went on to be one of the top two most pro-corporate Supreme Court Justices in the past 65 years). In contrast, President Obama is the first president since Woodrow Wilson to not place a single judge on the court during his full first term.
The Huffington Post clips this exchange from yesterday’s meeting of the Senate Judiciary Committee meeting yesterday, which pretty much encapsulates the gridlock that Republicans have inflicted on the Senate during the Obama administration:
HuffPost’s Jennifer Bendery summarizes the exchange between Texas Republican John Cornyn and Democrats on the Judiciary Committee:
During a Senate Judiciary Committee hearing, Cornyn was arguing for more immigration judge slots in Texas when he got called out by Sen. Sheldon Whitehouse (D-R.I.) for gumming up the district court nomination process. Immigration judges are different from district court judges, but Whitehouse questioned why the Senate should add more immigration judgeships in Texas if Cornyn isn't trying to fill empty district court slots there.
"I don't see why you need additional judges when there have been multiple vacancies that have been left without nominees for years," Whitehouse said. "I have an issue with that."
Cornyn said his answer to that was "simple:" It's Obama's fault.
"The president's got to nominate somebody before the Senate can act on it," Cornyn said.
But the process for approving a new district court judge, per longstanding tradition, begins with a senator making recommendations from his or her state to the president. The president then works with that senator to get at least some of the nominees confirmed -- the idea being that those senators, regardless of party, are motivated to advocate for nominees from their states. The White House may look at other nominees on its own, but typically won't move forward without input from home state senators.
That's when Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) stepped in to remind Cornyn what he already knows: that if he wants to see movement on district court nominees, he needs to make recommendations to the president.
"Based on 38 years experience here, every judgeship I've seen come through this committee during that time has followed recommendations by the senators from the state," Leahy said. "You have to have recommendations from the senators, especially since I've been chairman, because ... as the senator from Texas knows, if senators have cooperated with the White House and the White House sends somebody they disagree with ... I have not brought the person forward, even when it's been importune to do so by the White House."
Cruz tried to absolve himself of the matter altogether, saying he just got to the Senate in January.
In short, Cornyn was blaming President Obama for gridlock that Cornyn himself has created. In fact, Texas has eight current federal judicial vacancies, one dating back as far as 2008. All are on courts so overworked that they have been labeled “judicial emergencies.” Thanks to Cornyn and Cruz, not one of those vacancies has a nominee.
And in July, one more vacancy will open up in a district court seat based in Fort Worth. When it comes open, Fort Worth will be reduced to just one active federal judge for the first time in over two decades.
WASHINGTON – People For the American Way applauded the Senate’s unanimous confirmation today of Shelly Deckert Dick to be a district judge for the Middle District of Louisiana and Nelson Stephen Román to be a district judge for the Southern District of New York.
The Senate GOP needlessly delayed both nominees after they were named last year, forcing President Obama to renominate them at the beginning of this year.
“The Senate is making encouraging progress as it continues to work through the backlog of judicial nominations,” said Marge Baker, Executive Vice President of People For the American Way. “However, they have plenty of ground to make up. That these two highly qualified, unopposed nominees have been forced to wait as long as they have for a simple yes-or-no vote is outrageous. Senate Republicans have taken obstruction to a new level, making even President Obama’s unopposed district court nominees wait an average of nearly three times as long as President Bush’s.”
Dick, who was first nominated on April 25, 2012, waited over one year for a vote from the full Senate because Louisiana Sen. David Vitter blocked her, citing the fact that it was an election year. This obstruction was a sharp departure from when President Bush was running for reelection. In 2004, everyone he nominated on or after April 25 (the date that Dick was nominated) and before Labor Day received both a committee hearing and a committee vote before Election Day. In 2008, when Democrats controlled the Senate, they scheduled hearings, committee votes, and floor votes for eleven Bush district court nominees who had been nominated closer to the election than Shelly Dick was. Most of these were nominated after the July 4 holiday, and they were all confirmed by voice vote before Election Day.
A Congressional Research Service report this week found that President Obama’s judicial nominees have faced dramatically longer wait times on the Senate floor than did nominees in previous administrations.
“The Senate must pick up the pace of confirmations to end the vacancy crisis on the federal courts. They should start by promptly holding yes-or-no votes on the eight judicial nominees currently awaiting confirmation," Baker added.
Today, the White House put forth nominees for two additional federal district court vacancies, Madeline Hughes Haikala for the Northern District of Alabama and Gregory Howard Woods for the Southern District of New York. They should be moved through the Committee as expeditiously as possible.
It seems like with every election, congressional hearing or large gathering of its activists, the Right reaches new lows. Here are some updates on what we’re up against right now.
Rewarding Hypocrisy -- Sanford and Cruz
This week, former South Carolina Governor Mark Sanford staged a political comeback and won a special election to reclaim the U.S. House seat he once occupied. Sanford had left office mired in scandal about his extramarital affair and ran a campaign centered on his own humility and learned compassion -- although, apparently his experience did nothing to dissuade him from his moralizing anti-choice and anti-gay positions. I pointed out in a piece on the Huffington Post yesterday that Sanford trumpeted his new personal understanding of "human grace as a reflection of God's grace," but his ideas of grace, choice and personal freedom as they apply to his own story don’t seem to be pushing him in the direction of supporting those things for same-sex couples, women, religious minorities or really anyone who is not just like him.
Sanford’s just the tip of the iceberg.
This past weekend NRA convention speakers from Glenn Beck and Rick Santorum to Sarah Palin and NRA president Wayne LaPierre attacked “the Left,” the Obama administration, the media and, basically, their straw man version of The (uber-liberal) Establishment for using fear tactics to scare Americans into supporting common sense gun reforms like background checks… while in the same breath stoking paranoia about every manner of “big government” tyranny, like the forced disarmament of America’s law abiding gun owners.
Another NRA convention speaker, Sen. Ted Cruz (R-TX) is being discussed in right-wing circles (and by Cruz himself) as potential presidential candidate in 2016. Cruz is a Tea Party super star who is making waves by challenging the traditional role of freshmen U.S. senators and recently gained notoriety for leading the filibuster of the background check requirement for gun purchases (the one 90% of Americans support) and then insulting his fellow Republican senators at a Tea Party event. But Sen. Cruz was born in Canada. Where are all the Tea Party “Birthers” who claimed that President Obama was born in Kenya and therefore he didn’t qualify as a “natural born citizen,” making him ineligible to run for president, even if his mother was an American citizen??
Whether it’s based on race, politics or ideology, the hypocrisy here is palpable … as it was when Cruz bragged to the NRA about vowing to filibuster any gun safety reform, no matter how common-sense or popular, but in the same speech, tore into Senate Majority Leader Harry Reid for requiring a 60 vote threshold to advance one of his preferred “pro-gun” bills, which incidentally had less support in the Senate than background checks.
It seems that it’s not so much a good redemption story the Right loves as it is blatant hypocrisy that gets rewarded with support and popularity.
It must be political witch hunt season because Republicans in Congress – fueled by their allies in the right-wing media – are embarking on some serious fishing expeditions in attempts to smear the president, his nominee for Labor Secretary Tom Perez and former Secretary of State Hillary Clinton.
Rep. Darrell Issa (R-CA), chair of the House Oversight and Government Reform Committee channels Sen. Joe McCarthy perhaps more than any other sitting member of Congress in his overzealous twisting of facts and events to “support” his hyperbolic allegations like President Obama’s is “the most corrupt government in history” and Hillary Clinton and her inner circle staged a vast “cover up” surrounding the embassy attack in Benghazi. Issa, who himself is no stranger to ethical questions (again with the hypocrisy -- they can’t help themselves), along with his allies, who include most congressional Republicans, the Religious Right and virtually the entire conservative movement, are clearly being motivated by their expectations that former Sec. of State Clinton will be a formidable candidate for president in 2016, so they are trying to tar her in advance.
Issa and his House cohorts have been involved in the attacks on Tom Perez as well, although the real obstruction is taking place in Senate, where Perez’s confirmation vote has been delayed again by Republicans on the Health, Education, Labor & Pensions (HELP) Committee. While obstructing an eminently well qualified Latino nominee seems like a funny way to demonstrate the GOP’s “rebranding” and appeal to Latino voters, the attacks on Tom Perez have truly been as vicious as they are baseless. Rep. Steve King (R-IA) alluded to Perez being “a dishonorable man,” and Rep. Jim Jordan (R-OH) contorted claims about an incident involving the city of St. Paul, MN to assert that Perez wanted to “hurt poor people” simply because he was in a position of power from which he could do so.
This week, PFAW delivered 50,000 petition signatures to the Senate HELP Committee urging an end to the obstruction and swift action to confirm Tom Perez, and we’ll continue to keep the pressure on.
Religious Right’s Persecution Fantasy
Claim after claim after claim of “persecution,” used as examples of a “war on Christians” by Religious Right activists, talk show hosts and politicians, gets thoroughly debunked. But even as these examples are firmly established as myths, right-wing leaders, and even lazy mainstream journalists, continue to cite them in their speeches and reporting. PFAW’s Right Wing Watch released an In Focus report in the first weeks of the Obama administration in 2009 about the Right’s use of a “big lie” strategy about a war on Christians to stoke the base’s false fears of religious persecution. We are seeing every day in our Right Wing tracking that the playbook we identified remains in constant use.
A new study by the Constitutional Accountability Center details the remarkable success corporate special interests like the Chamber of Commerce have had before the current Supreme Court. Certainly as, if not even more, notable, another study published in The Minnesota Law Review ranked all 36 Supreme Court justices of the last 65 years based on their pro-corporate bent. While all five of the current Court’s conservative justices made the top 10, President George W. Bush’s nominees and the two most recent conservative additions to the Court, Chief Justice Roberts and Justice Alito, were at the very top of the list.
Meanwhile, a separate study from the nonpartisan Congressional Research Service confirms what we’ve been pointing out for years -- that President Obama’s judicial nominees are being treated exceptionally poorly by Senate Republicans. Emblematic of the obstruction of President Obama’s nominees has been the situation with respect to the DC Circuit Court of Appeals, often called the nation’s second most powerful court. Republicans are fighting tooth and nail to preserve the DC Circuit’s rightward tilt even at the cost of maintaining vacancies that severely hinder the Court’s ability to do its job.
PFAW will continue to call attention to and fight the GOP’s unprecedented judicial obstruction in the DC Circuit and the entire federal judiciary. We expect several confirmation battles on the horizon, with new nominations expected to be announced by the White House in coming weeks, and we’ll be employing various strategies to make sure senators are feeling the heat in their own states over the GOP’s unconscionable obstruction.
The D.C. Circuit Court of Appeals, the most important court that most Americans have never heard of, is making waves this week with a ruling that the National Labor Relations Board’s requirement that corporations inform their employees of their right to unionize violates the free speech rights of the corporations.
This decision by a panel of three Republican-nominated D.C. Circuit judges is outrageous, but unfortunately it’s not out of character. Last year, Republican nominees on the court ruled that a regulation requiring tobacco companies to print factually accurate warnings on cigarette packages actually violated the tobacco companies’ free speech rights. In January, the court invalidated three presidential appointments to the NLRB, undermining the Board’s ability to protect the rights of workers. And that’s just the beginning.
Why is the D.C. Circuit still wreaking havoc on the government’s ability to protect the rights of workers and consumers? Because Republicans in the Senate have yet to allow a single one of President Obama’s nominees to the court reach a confirmation vote, making Obama the first president since Woodrow Wilson to serve a full first term without placing a judge on the D.C. Circuit.
That means that the partisan makeup of the D.C. Circuit is pretty much unchanged since the Bush years. Currently dominated by active judges and semi-retired senior judges appointed by Republicans, the D.C. Circuit has four vacancies. As the graphic above shows, if President Obama can fill those four vacancies, he can restore some balance to a court that has veered far, far, far to the right.
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.
A new study from the nonpartisan Congressional Research Service [pdf] quantifies the extent to which Senate Republicans have been stalling President Obama’s judicial nominees. Through this persistent obstruction, Senate Republicans have kept the chamber mired in gridlock, thrown the federal courts into an historic vacancy crisis, and prevented President Obama from restoring ideological balance to a system still dominated by George W. Bush nominees.
The study finds that President Obama’s judicial nominees – including those with no partisan opposition – face extraordinary wait times for simple yes-or-no votes from the Senate.
CRS notes that “President Obama is the only one of the five most recent Presidents for whom, during his first term, both the average and median waiting time from nomination to confirmation for circuit and district court nominees was greater than half a calendar year.” In particular, the study notes, the wait times for district court nominees – whose decisions do not bind other courts and who have historically been approved quickly and without controversy – have shot up in the past four years:
Where President Obama’s judicial nominees face the greatest delays is between approval by the Senate Judiciary Committee and a vote from the full Senate. Because the Senate must have unanimous consent or invoke cloture to hold an up-or-down vote, senators in the minority can quietly filibuster judicial nominees for months without giving a reason for delaying the votes. For instance, Robert Bacharach of Oklahoma, who was nominated to a seat on the Tenth Circuit Court of Appeals, was forced to wait nine months for a vote from the full Senate, despite the fact that he was supported by both of his home state’s conservative Republican senators. In the end, he was confirmed unanimously.
Perhaps the starkest example of Republican obstruction under President Obama is the gridlock that completely unopposed judicial nominees have faced. CRS finds that President Obama’s unopposed district court nominees have waited nearly three times as long for a Senate vote as did President Bush’s and nearly six times as long as President Clinton’s. His unopposed circuit court nominees have waited over four times as long as President Bush’s and seven times as long as President Bush’s.
It’s important to note also that many more of President Obama’s nominees would count as unopposed – making these numbers even more dramatic -- if Republican Sen. Mike Lee of Utah hadn’t spent a year opposing every one of President Obama’s judicial nominees in protest of a completely unrelated issue.
Last week, we reported on the creative and constitutionally questionable efforts by Iowa Republicans to punish the state supreme court justices who issued the state’s landmark marriage equality ruling.
Now, Wisconsin Republicans are up to something similar, seeking to strip county circuit court judges of the ability to issue preliminary injunctions on laws that may be unconstitutional. The measure, which was introduced last month and had public hearings yesterday, is widely seen as a reaction to judicial injunctions on efforts by state Republicans to impose voter ID requirements and limit collective bargaining rights.
The Milwaukee Journal Sentinel explains:
With some of their major legislative achievements thwarted by trial courts in the past two years, Wisconsin Republicans have been looking for ways to rein in local judges, particularly in liberal areas such as Dane County.
Since 2011, circuit court judges have blocked all or parts of laws backed by Republicans that required voters to show photo ID at the polls, limited collective bargaining for public employees and expanded the governor's power over administrative rules. Under a measure announced last month, such injunctions would be automatically stayed as soon as they were appealed - meaning laws that were blocked would be put back in effect until a higher court issued a ruling.
The state’s nonpartisan Legislative Council is now warning that the bill is likely unconstitutional.
Incidentally, one of the bill’s sponsors is state Sen. Glenn Grothman, who last year tried to get a state public health agency to list single parenthood listed as “a contributing factor to child abuse and neglect.”
The current Supreme Court’s pro-corporate leanings have resulted in a huge spike in rulings favoring corporations over individual Americans, according to a new report from the Constitutional Accountability Center. MSNBC’s Zachary Roth goes through the report’s findings, including that under Chief Justice Roberts, the behemoth corporate lobbying group the U.S. Chamber of Commerce has won a full two-thirds of the Supreme Court cases in which it has been involved:
The major result of the Chamber’s success, legal scholars say, has been a string of rulings that threaten to block the courthouse door to ordinary Americans looking to hold corporations accountable. And with court-watchers’ attention focused on higher-profile gay marriage and voting rights cases this term, it’s a development that’s flown largely under the radar.
The Roberts Court’s pro-business outlook has been apparent for several years. But the CAC report suggests it may be accelerating. Both the Chamber’s participation rate and its success rate have risen significantly in recent years. This term, the Chamber filed amicus briefs in 24% of cases, up from 10% during the latter part of the Rehnquist Court, from 1994 to 2005, a period of stability when there were no changes to court personnel. And since John Roberts became Chief Justice, the Chamber has won 69% of the cases in which it’s gotten involved (see chart below). That’s up from 56% during the latter part of the Rehnquist Court, and just 43% during the last five years of the Burger Court, from 1981 to 1986.
Jamie Raskin, Senior Fellow of People For the American Way Foundation, chronicled the “Rise of the Corporate Court” in a 2010 report. He wrote:
Americans across the spectrum have been startled and appalled by the Citizens United decision, which will "open the floodgates for special interests—including foreign companies—to spend without limit in our elections," as President Obama said in his 2010 State of the Union Address. According to a Washington Post nationwide poll, more than 80% of the American people reject the Court's conclusion that a business corporation is a member of the political community entitled to the same free speech rights as citizens.
Yet, the Court's watershed ruling is the logical expression of an activist pro-corporatist jurisprudence that has been bubbling up for many decades on the Court but has gained tremendous momentum over the last generation. Since the Rehnquist Court, there have been at least five justices—and sometimes more—who tilt hard to the right when it comes to a direct showdown between corporate power and the public interest. During the Roberts Court, this trend has continued and intensified. Although there is still some fluidity among the players, it is reasonable to think of a reliable "corporate bloc" as having emerged on the Court.
What is striking today, however, is how often the Roberts Court, like its predecessor the Rehnquist Court, hands down counter-intuitive 5-4 victories to corporations by ignoring clear precedents, twisting statutory language and distorting legislative intent. From labor and workplace law to environmental law, from consumer regulation to tort law and the all-important election law, the conservative-tilting Court has reached out to enshrine and elevate the power of business corporations --what some people have begun to call "corporate Americans"--over the rights of the old-fashioned human beings called citizens.
With Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia, Clarence Thomas and Anthony Kennedy in the driver's seat today, the "least dangerous" branch of government now routinely runs over our laws and our politics to clear the road for corporate interests. When it comes to political democracy and social progress, the Supreme Court today is the most dangerous branch. The road back to strong democracy requires sustained attention to how the Court is thwarting justice and the rule of law in service of corporate litigants.
A poll commissioned by People For the American Way and fellow progressive groups late last year found that the Corporate Court was a concern for a majority of voters.
President Obama yesterday nominated three highly qualified candidates to federal district court judgeships in Illinois. The nominations of Colin Stirling Bruce, Sara Lee Ellis and Andrea R. Wood underscore the president’s commitment to bringing qualified, diverse candidates to the federal bench. Two of the three nominees, Ellis and Wood, are African-American women. Wood brings unique professional diversity to the bench: she currently works for the enforcement division of the Securities and Exchange Commission, which helps keep financial companies accountable to voters and consumers.
Yesterday, the Senate unanimously confirmed Iowa’s Jane Kelly to the Eighth Circuit Court of Appeals. Kelly, who currently serves as a federal public defender, becomes “only the second woman, and the first public defender, to serve in the history of the court that was established in 1891,” according to the Iowa City Gazette.
Kelly also makes history by having the quickest confirmation process of any of President Obama’s appeals court nominees so far, according to the Gazette. Kelly waited just 33 days for a confirmation vote, compared to the average 153 day wait for President Obama’s circuit court nominees (as of two weeks ago). Kelly’s quick confirmation, however, would not have been at all noteworthy at this point in George W. Bush administration, when appellate nominees waited an average of just 37 days between committee approval and Senate confirmation.
Kelly’s speedy confirmation may have something to do with the senators supporting her. Iowa’s Chuck Grassley, who as ranking member of the Senate Judiciary Committee has been instrumental in obstructing President Obama’s judicial nominees, seemed to put aside his obstruction habits for a nominee from his own state.
Iowa Republicans are determined to remove the nine state supreme court justices who ruled unanimously in 2009 to allow same-sex marriage in the state, and they'll try just about anything. In 2010, anti-gay groups funded a successful campaign to oust three justices in retention elections. Then Iowa anti-gay leader Bob Vander Plaats called for the remaining justices to resign. When that didn't work, state Republicans then tried to impeach them. Last year, an effort to remove a fourth justice failed at the ballot box. So now Iowa Republicans are trying a different strategy, proposing to dramatically lower the salaries of the remaining judges who were involved in the marriage equality decision. The Iowa City Gazette reports:
A handful of House conservatives want to reduce the pay of Iowa Supreme Court justices involved in a 2009 decision striking down a ban on same-sex marriages as part of an effort to maintain the balance of power in state government.
“It’s our responsibility to maintain the balance of power” between the three co-equal branches of government, Rep. Tom Shaw, R-Laurens, said Tuesday.
The justices “trashed the separation of powers” with their unanimous Varnum v. Brien decision and implementation of same-sex marriage without a change in state law banning any marriages expect between one man and one woman, added Rep. Dwayne Alons, R-Hull.
Their amendment to House File 120, the judicial branch budget bill, would lower the salaries of the four justices on the seven-member court who were part of the unanimous Varnum v. Brein decision to $25,000 – the same as a state legislator.
It’s not meant to be punitive, Alons and Shaw said Tuesday.
“We’re just holding them responsible for their decision, for going beyond their bounds,” Shaw said.
“It’s not the merits of what they said in that decision,” added Alons. He’s trying to stop “an encroaching wave” of judicial activity including decisions on nude dancing and landowner liability – decisions the Legislature also is trying to correct through legislation this session.
The chairman of the state Senate Judiciary Committee tells Gazette “that a plan to pay justices differently based on their role in one case would be unlikely to withstand a court challenge.”
Journalist Andrew Cohen, writing for the Brennan Center for Justice, explains how attempts to portray today’s Republican filibusters as routine “tit-for-tat” maneuvers are misleading:
By trying not to be partisan, at least in this area of political coverage, we journalists are in many ways becoming more partisan than we fear. James Fallows, the author and longtime correspondent at The Atlantic, has been preaching for years now about “false equivalence” in reporting about the Senate’s current gridlock. He has called out reporters and editors, producers and television hosts, headline writers and analysts, for their continuing failure to call it like it really is when it comes to these Senate votes. For example, on Wednesday, in the wake of the background check vote, which “passed” the Senate by a vote of 54-46 but effectively “failed” because of the threat of a filibuster, Fallows again explained the concept. He wrote:
Since the Democrats regained majority control of the Senate six years ago, the Republicans under Mitch McConnell have applied filibuster threats (under a variety of names) at a frequency not seen before in American history. Filibusters used to be exceptional. Now they are used as blocking tactics for nearly any significant legislation or nomination. The goal of this strategy, which maximizes minority blocking power in a way not foreseen in the Constitution, has been to make the 60-vote requirement seem routine. As part of the "making it routine" strategy, the minority keeps repeating that it takes 60 votes to "pass" a bill — and this Orwellian language-redefinition comes one step closer to fulfillment each time the press presents 60 votes as the norm for passing a law.
News consumers, in other words, are led to believe that what is happening is just “politics as usual,” tit-for-tat, part of the murky vote-counting calculus that has always been a part of the Senate’s rules. But there is now ample evidence to suggest that this tactic has fundamentally changed the way Congress works. In 2009 alone, the Brennan Center’s Diana Kasdan told me last week, “there was double the number of filibusters that occurred in the entire 20-year period from 1950-1969, when they were used repeatedly and notoriously to block civil rights legislation.” In other words, today’s abuse of the filibuster is extraordinary. Yet Fallows gives many examples — actual headlines, probably hundreds of them over the years — in which journalists have refused or failed to properly communicate this to their audience. Without adequate context and perspective about what is happening in the Senate, the American people are hampered in how quickly they can force their elected officials to change (or, more accurately, to change their elected officials).
In fact, as we have reported here, today’s GOP has taken Senate obstruction to an extraordinary new level.
Back in September, PFAW senior fellow Jamie Raskin wrote a preview of the major cases coming before the Supreme Court this term, one of which, Kiobel v. Royal Dutch Petroleum, deals with the ability of foreign nationals to sue corporations for human rights abuses in American courts. The Supreme Court today issued a sweeping ruling siding with the multinational corporations accused of abuse. Main Justice sums up the facts of the case:
The plaintiffs accuse Royal Dutch, the Shell Transport and Trading Company and their joint Nigerian subsidy of allowing, indeed encouraging, atrocities by the Nigerian military against people who were protesting environmental damage caused by drilling in the Niger Delta in the 1990s. The companies were complicit in beatings, rapes and mass arrests by paying the soldiers, feeding them and allowing them to use oil company property as staging areas for their attacks, the plaintiffs maintain.
At issue was the application of the Alien Tort Statute, enacted in 1789, that gives United States courts jurisdiction over civil actions brought by aliens alleging torts committed in violation of United States treaties or international law. The seldom-used ATS was enacted partly in response to piracy on the high seas. The Nigerian plaintiffs, now legal residents of the United States, tried to use it in a present-day context.
As Jamie Raskin wrote in his Supreme Court preview, the Second Circuit radically twisted legal precedent in this case to rule that individuals could not sue corporations under the Alien Tort Statute:
Jurisdiction to hear the suit was clear. In 2004, the Supreme Court held, in Sosa v. Alvarez-Machain, that the Alien Tort Statute gave federal courts jurisdiction to hear claims about torts committed against aliens that violate well-established international norms like the human rights norms implicated in this case. Yet a bitterly divided Second Circuit panel in Kiobel held for the first time that the statute does not allow courts to hear suits against corporations as opposed to individuals. The Kiobel majority’s ruling on this issue was amazing since the issue was never raised, never briefed, never argued and never decided in any of the proceedings below that took place over the course of nearly a decade. (This rings a bell for close observers of the Citizens United majority, which also pulled a rabbit out of a hat to ask and answer a question never raised below.)
Today, the Roberts Court agreed. The Court unanimously ruled against the Nigerians in Kiobel, but disagreed about how far the ruling should go. Justice Roberts, writing for the conservative majority, wrote a broad ruling in favor of the corporations accused of human rights abuses. The four moderate justices concurred with the majority’s ruling on this particular case, but left the door open for similar cases to be tried in U.S. Courts. Main Justice explains:
Justice Stephen G. Breyer wrote that the defendants’ “minimal and indirect presence in the United States was not enough to give American courts jurisdiction over the case.” But he stopped short of declaring that similar cases should never end up in American courts if the abuse at issue “adversely affects an important American national interest.” Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan agreed with him.
Nicole Flatow at ThinkProgress explains the possible implications of the majority’s ruling:
This decision not only means that Nigerians cannot sue foreign corporations for their conduct abroad. On this particular point, the four-justice Breyer concurrence agreed that this case did not pass muster. Roberts’ sweeping pronouncement against extraterritoriality may also mean that foreign nationals subject to abuse, for example, at the hands of a U.S. corporation that houses its factories in places whose laws shield it from liability, or an American citizen who commits human rights violations abroad against foreigners, also could not be subject to suit in the United States.
The scope of the opinion will not become clear until it is interpreted by courts. Extraterritoriality is a legal concept that asks not just whether conduct took place abroad, but also whether the claims “touch and concern the territory of the United States” such that a plaintiff can overcome the presumption against them. The only hint the court gives is that lawsuits against corporations will face a particularly heavy burden, noting, “Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.”
What is clear is that the presumption is exceedingly difficult to overcome, and that both individuals and corporations have a high chance of skirting liability simply by doing their dirty work elsewhere.