Political Waves » Red and White v. Blue

Red and White v. Blue

July 13th, 2009

OK, first off let me just say — I apologize for ignoring you the last few days; we had pet tragedy in the Pea Patch. I lost a beloved kitty and I’m having real trouble shaking this off. Her name was Honey, a little blond girl, and she came to me as a surprise several months ago, a needed balm to my heart; she left just as quickly. I’m struggling for balance on this one.

On to the day, which should be an enlightened exercise in democracy as the SCOTUS candidate is questioned … but is turning out to be some kind of Beck-ian hate fest. Considering the opening statements, I feel confident in saying that Jeff Sessions is an unyielding, consummate asshole. He’s did his Republican anti-Liberal hate act this morning, setting the tone for the Pub attack, spewing into Sotomayor’s face and mugging for the cameras. I despise this kind of thing almost as much as I dread looking at Mitch McConnell’s long-necked chinless turtle visage and listening to him gum some comment out to poison the airwaves. I find myself impatient this morning to the point of screaming … as Jon Stewart mentions he does when Glen Beck babbles … at my television set!

Even Right-wing ideologues and Federalists John Roberts and Samuel Alito got a respectful, if thorough, hearing during the Bushie hijack of the Republic. Sotomayor is being pounded because of who she is and what she has said about who she is — while, in the end, her legal positions are what counts. Assassination of personality, today — and it stinks. The Republicans are an embarrassment and a lesion on the butt of liberty; I’m coming to the point of no patience whatsoever with these people. Orin Hatch, at least, has some respect for the process — he’s warned off those who salivated over Sessions bile.

Here’s the thing — the only perk the Pubs have going for them is an egregiously Right-leaning SCOTUS. That is the Bush legacy and the one success he left his party worth mentioning. It is a huge problem … a dangerous and slippery slope … for a nation struggling with its stabilization in a new century; I’m posting a collection of reads, below, to elucidate.

Sotomayor won’t change the mix — but she is passionate and vocal and can stir the debate, at least. She has the votes, and has met personally with some 96 Congressional leaders. This is a done deal; to assassinate only drags down the political process and further illuminates the meanness and ideology of the minority party. But in the end, SCOTUS is for all the marbles — a full third of the pillars upon which this government balances.

These hearings are Kabuki — rather than take a position, candidates hedge and demure, trying to stay out of trouble; Roberts and Alito spent their time bobbing and weaving away from what the Liberals knew they’d do anyway when they got to the bench: continued corporatism, the end of protections, voting rights and issues of diversity … all hang in the balance in the Roberts court. Going deeply Right, increasingly fascistic and repressive, as the nation itself turns sharply Left.

The bottom line is Sotomayor is a moderate, for chrissakes — she’s not Liberal enough to suit me. The stagnant, repressive Pubs are playing all their cards to keep a moderate off the bench. I’d like to see Obama nominate somebody they can really bitch about … and time will tell.

So, DiFi just spoke and made me feel a tad better; then Grassley, with that ‘legislating from the bench’ bull. This is going to be ‘one of those days’ as I get a full court press of what makes me crazy about these crusty old heel-draggers. So now it’s Jon Kyl from Arizona; the man is talking about “heart” … obviously an academic exercise for him — and I need to go get my Advil.

Excellent articles from over the last weeks since Souter announced, including the Must Read Jeff Toobin piece, one from Thom Hartmann and another from John Dean.

Jude

A Conservative Court in a Progressive Era
Progress Report
7/8/09

For decades, conservatives have used their dominance of the judicial branch to push an agenda that could never pass in the elected branches. In recent years, the Supreme Court granted health insurers and medical device manufactures sweeping immunity from the law. It forbade school boards from racially integrating public schools, audaciously citing Brown v. Board of Education in doing so. And it repeatedly cut back the rights of workers and voters to be free from discrimination. The recently-concluded Supreme Court term was no exception, with workers, voters, and the environment all suffering big loses before the nation’s highest Court. Despite these decisions, however, the Court also left unresolved a number of new and radical claims raised by right-wing advocates. In other words, as bad as the current term’s decisions were, the worst may be waiting on the horizon.

A BANNER YEAR FOR POLLUTERS: No one fared worse before the Court this term than Mother Nature. The justices heard five environmental cases, and they sided against defenders of the environment in every single one. Among these cases, the Court upheld a Bush-era regulation that placed costs to power plants above destruction of aquatic life, it absolved from liability a chemical company that for years, allowed pesticides to spill into the environment, and it erected new obstacles to environmental organizations challenging federal environmental policy. In what may be the most shocking environmental decision this term, Coeur Alaska v. Southeast Alaska Conservation Council, the justices upheld a mining company’s plans to dump millions of tons of mining waste into a pristine lake — a plan that would eventually kill the lake’s fish and nearly all of its other aquatic life, decrease the depth of the lake by 50 feet, and flood the surrounding 40 acres of land with lead and mercury-laden water. As Justice Ruth Bader Ginsburg explained in her dissent, the majority’s opinion in Coeur Alaska allows “[w]hole categories of regulated industries” to “gain immunity from a variety of pollution-control standards.”

DISREGARD FOR PRECEDENT: The other big loser this Supreme Court term was the law itself. The justices expressly or implicitly overruled at least four long-standing precedents, cutting back on the rights of criminal defendants awaiting trial, unionized workers, and older Americans in the process. One of the Court’s most egregious cases, Gross v. FBL Financial Services, dramatically cut back on the right of older workers who are victims of employment discrimination to hold their employers accountable for such mistreatment. Moreover, as Justice John Paul Stevens explained in his dissent, Justice Clarence Thomas’s 5-4 decision in Gross showed “utter disregard for…precedent and Congress’ intent,” because it flat-out refused to follow a 1989 decision that interpreted the exact same legal language at issue in Gross and reached the opposite result. For his part, Thomas did not even try to justify his disregard for precedent, stating simply that “it is far from clear that the Court would have the same approach were it to consider the question today in the first instance.” Apparently, precedents no longer apply whenever the Court’s five conservative members disagree with them.

THE BREWING STORM: As troubling as these decisions are, in many ways the biggest story this term is what the Court did not decide. Although the Court held in NAMUDNO v. Holder that voting districts that have historically engaged in discrimination should have an easier time “bailing out” of the Voting Rights Act’s requirements, it expressly declined to consider whether a key provision of this Act should be declared unconstitutional. Similarly, although Ricci v. DeStefano made the novel claim that the federal ban on covert race discrimination may itself be a form of discrimination, the Court rejected Justice Antonin Scalia’s suggestion, in a separate concurring opinion, that this ban should be struck down. In light of Gross’ audacity, however, it is unlikely that the Court simply stayed its hand because of a principled decision to exercise judicial restraint, and far more likely that the four most conservative justices are still unable to find the fifth vote to strike down landmark anti-discrimination laws. Unfortunately, the same cannot be said about campaign finance. Breaking from its traditional practice of deciding every case argued in a given term before adjourning for the summer, the Court left campaign finance case Citizens United v. FEC undecided. Instead, the justices issued a brief order asking the parties to brief whether a landmark precedent limiting the influence of corporate money in politics should be overruled. Should the Court overrule this precedent — an outcome that seems likely — existing laws limiting the influence of corporate money in politics could simply cease to exist. By 2010, candidates for public office may not only need to compete against their political opponents; they may also find themselves in a no-holds-barred political fight with well-heeled corporate political players. ++

Roberts Court Shifts Right, Tipped by Kennedy
ADAM LIPTAK
June 30, 2009

WASHINGTON — Chief Justice John G. Roberts Jr. emerged as a canny strategist at the Supreme Court this term, laying the groundwork for bold changes that could take the court to the right even as the recent elections moved the nation to the left.

The court took mainly incremental steps in major cases concerning voting rights, employment discrimination, criminal procedure and campaign finance. But the chief justice’s fingerprints were on all of them, and he left clues that the court is only one decision away from fundamental change in many areas of the law.

Whether he will succeed depends on Justice Anthony M. Kennedy, the court’s swing vote. And there is reason to think that the chief justice has found a reliable ally when it counts.

“In the important cases, Kennedy ends up on the right,” said Thomas C. Goldstein, a student of the court and the founder of Scotusblog, which has compiled comprehensive statistics on the current term. The two justices agreed 86 percent of the time.

If Judge Sonia Sotomayor is confirmed by the Senate, she will succeed Justice David H. Souter, a liberal who spent almost two decades on the court. Her record on the federal appeals court in New York suggests that her views are largely in sync with those of Justice Souter, though there is some evidence that she will turn out to be more conservative in criminal cases.

The arrival of a neophyte justice coupled with Chief Justice Roberts’s increasing mastery of the judicial machinery foreshadow a widening gap between the Democratic-led political branches and the Supreme Court. Indeed, the court appears poised to move to the right in the Obama era.

Chief Justice Roberts has certainly been planting seeds in this term’s decisions. If his reasoning takes root in future cases, the law will move in a conservative direction on questions as varied as what kinds of evidence may be used against criminal defendants and the role the government may play in combating race discrimination.

The two newest justices, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush, agreed 92 percent of time, the highest rate for any pair of justices. But Justice Alito often wrote concurring opinions to underscore or try to extend conservative rulings, especially in criminal cases. He may well now be the court’s most conservative member.

“Alito is staking out some room to the right of the chief justice,” said Pamela Harris, the executive director of the Supreme Court Institute at Georgetown University Law Center, “and you would have thought there is no such room.”

Labels like “conservative” and “liberal” are, of course, imperfect. Political scientists often say judges are liberal to the extent they tend to vote in favor of, say, criminal defendants, environmental groups, people suing over injuries and plaintiffs claiming discrimination.

Decisions protecting individual rights may be said to be liberal, too, but many political liberals would reject that characterization where the First Amendment rights of rich campaign contributors or the Second Amendment rights of gun owners are at issue.

At the Supreme Court, though, voting alignments are so predictable that “liberal” and “conservative” are as much shorthand as principle. They refer to two groups, of four justices each, who generally vote the same way.

The court was remarkably polarized in the 74 signed decisions it issued this term, dividing 5-to-4 or 6-to-3 in almost half of them, up from roughly a third in the three previous years. The court reversed lower courts about three-quarters of the time, up from two-thirds in the last term.

Justice Kennedy was in the majority 92 percent of the time and in all but 5 of the 23 decisions in which the justices split 5-to-4. Those decisions were, moreover, often divided in the expected way: in 16, all four members of the court’s liberal wing were on one side and all four of its conservatives were on the other.

And in between them was Justice Kennedy, the most powerful jurist in America. He joined the liberals 5 times and the conservatives 11. That was a significant shift to the right: in the previous term, Justice Kennedy voted four times each with the liberals and the conservatives in cases divided along the traditional ideological fault line.

Justice Kennedy swung right in the cases that really mattered. The only major case in which he joined the court’s liberal wing — Justices Souter, John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer — was Caperton v. A.T. Massey Coal Company. The decision required the chief justice of the West Virginia Supreme Court to disqualify himself from a case involving a coal executive who had spent $3 million to elect him.

If there were surprises, they came from Justices Antonin Scalia and Clarence Thomas.

“For all the talk about Scalia and Thomas being the most conservative justices on the court, they are the justices most likely in play,” said Jeffrey L. Fisher, a law professor at Stanford who has argued several important criminal cases before the court.

Justices Scalia and Thomas are apt to follow what they understand to be the original meaning of the Constitution, even when the consequences might not align with their policy preferences. In Melendez-Diaz v. Massachusetts, for instance, Justices Scalia and Thomas joined three members of the court’s liberal wing to say that the Constitution’s confrontation clause requires crime laboratory analysts to appear at trial rather than submit written reports.

The current chief justice clerked for Chief Justice William H. Rehnquist, a famous strategist, and he seems to have learned some tactics from his old boss.

The most important case of the term, for instance, seemed likely to be Northwest Austin Municipal Utility District v. Holder, which concerned the constitutionality of a major provision of the Voting Rights Act of 1965. Judging from the questions at argument, Chief Justice Roberts appeared prepared to strike it down.

The law, reauthorized by Congress in 2006, used old data to decide which state and local governments had to obtain federal permission before making even minor changes to their voting procedures. Some officials, mostly in the South, bristled at what they said was the stigma, burden and federal intrusion that came with being covered by the law.

Instead of addressing that broad question, Chief Justice Roberts wrote a narrow decision for an eight-justice majority that allowed the Texas municipal water district that had brought the challenge to try to escape from coverage under the law while leaving the law itself intact.

In the process, though, he wrote that much has changed since the civil rights era and suggested that the law would not survive constitutional scrutiny. He all but invited a further challenge, and many voting rights specialists say that Congress must act soon to change the law if it is to survive another encounter with the Roberts court.

What accounted for the incrementalism? A likely explanation is that the chief justice did not yet have Justice Kennedy’s unqualified support and was biding his time until he did.

Something similar seemed to be going on in Herring v. United States, which cut back on but did not eliminate the exclusionary rule. The rule requires the suppression of some evidence obtained by police misconduct.

The majority opinion in Herring, by Chief Justice Roberts, said that an unlawful arrest based on incorrect information in a police database did not require suppression of drugs and a gun. The police error, the chief justice wrote, was “isolated negligence attenuated from the arrest.”

The balance of the opinion suggested that Chief Justice Roberts might be willing to excuse other kinds of police misconduct as well, and specialists in criminal law said they suspected the limiting principle was added to placate Justice Kennedy, who in a 2006 concurrence expressed support for the exclusionary rule even as he joined a majority opinion that harshly criticized it.

Even the court’s failure to decide a case could seem portentous.

In scheduling Citizens United v. Federal Election Commission for re-argument in September, Chief Justice Roberts appeared to be setting the stage for an overhaul of the law governing campaign spending by corporations.

The case involves a polemical documentary about Hillary Rodham Clinton that the F.E.C. said was an “electioneering communication” that could not be broadcast during the Democratic primaries this year because a corporation had financed it.

The Supreme Court could have ruled in favor of the group that made the film on a variety of narrow grounds. Instead, it asked for fresh briefing on the validity of laws limiting corporate campaign spending.

In two of the term’s most important cases, Justice Kennedy was the on-off switch in determining the meaning of the Constitution’s due process clause.

In District Attorney’s Office v. Osborne, Justice Kennedy was not prepared to find that due process requires allowing inmates to have access to DNA evidence that might prove their innocence, and so there is no such right in the Constitution.

In the Caperton decision, he said litigants’ due process rights required a state supreme court justice to step aside from a case involving an important supporter, and now that has become a constitutional principle.

The court’s liberals would have interpreted the due process clause to require both kinds of rights, the court’s conservatives neither. The Constitution, it turns out, means what Justice Kennedy says it means. ++

Will Supreme Court allow unlimited corporate contributions to election campaigns?
Daniel Tencer, Raw Story
July 5, 2009

The most troubling part of the court’s action is the brave new world of politics it could usher in. Auto companies that receive multibillion-dollar bailouts could spend vast sums to re-elect the same officials who hand them the money. If Exxon Mobil or Wal-Mart wants something from a member of Congress, it could threaten to spend as much as it takes to defeat him or her in the next election.

– From an editorial in the New York Times, July 4, 2009

If this editorial in the Times has it right, American democracy could be in for a rough ride in the coming years.

A largely-overlooked order from the United States Supreme Court last week suggests the nation’s highest court wants to revisit long-standing restrictions on campaign contributions from corporations.

On the last day of its current session, the Supreme Court surprised observers by declining to return a ruling in the case of Citizens United v. Federal Election Commission, instead asking lawyers on both sides of the case to return in September for an unusual pre-session hearing on the validity of various electoral laws pertaining to the case.

Citizens United vs. FEC revolves around a political film the conservative activist group Citizens United made about Hillary Clinton in 2008, while the then-senator from New York was running for president. The FEC had charged Citizens United with breaking campaign finance laws by distributing the film during a certain period before the primary elections.

But instead of ruling on the case and the relevant law (the McCain-Feingold law, which set some restrictions on corporate political spending), the court instead asked the lawyers in the case to present briefs on a relevant case from 20 years ago: Austin v. Michigan Chamber of Commerce.

This is important because that was the Supreme Court case which ruled that restrictions on campaign contributions by corporations, unions and other organizations were legal despite their infringement on First Amendment rights.

Simply put, if the Supreme Court decides to overturn Austin v. Michigan Chamber of Commerce, it will mean that any restrictions on campaign spending by corporations will be invalid because they violate those corporations’ right to freedom of speech.

“The court, at the very least, is considering reversing more than 100 years of campaign finance precedent prohibiting corporate spending,” Paul Ryan, associate legal counsel at the Campaign Legal Center, told The Hill. “It would be a pretty large step, and remarkable step, for the court to overturn a century of public policy.”

Judicial observers fear overturning the 1989 ruling would mark the beginning of a wild, unbridled era where elections are won by the highest bidder.

“Banks like Citigroup, investment firms like Merrill Lynch, insurance companies like AIG and corporations like General Motors and Chrysler would be free to spend hundreds of millions of dollars of their corporation’s wealth” on elections, Fred Wertheimer, president of advocacy group Democracy 21, told the Washington Post.

According to a report at the First Amendment Center, restrictions on corporate spending go back to the Tillman Act of 1907, with various additional laws being put into place over the past century. The entire tradition of restricting political spending could be out the window with a Supreme Court reversal on corporations’ First Amendment rights.

In its editorial, the New York Times writes that even the “feverish” pace with which the Supreme Court wants to address the issue — it wants to rule on the issue in September, when the court hasn’t even reconvened for its new session — is “disturbing.”

The Times writes:

It is a nightmare vision, but based on how the justices have come down in past cases, there may well be five votes for it to prevail.

Fascism Coming to a Court Near You
Thom Hartmann, Smirking Chimp
July 6, 2009

Corporate Personhood and the Roberts’ Court

As the 1983 American Heritage Dictionary noted, fascism is: “A system of government that exercises a dictatorship of the extreme right, typically through the merging of state and business leadership, together with belligerent nationalism.”

Get ready.

Last year a right-wing group put together a 90-minute hit-job on Hillary Clinton, and wanted to run it on TV stations in strategic states. The Federal Election Commission ruled that the “documentary” was actually a “campaign ad” and thus fell under the restrictions on campaign spending of McCain-Feingold, and thus stopped it from airing. (Corporate contributions to campaigns have been banned repeatedly and in various ways since 1907 when Teddy Roosevelt pushed through the Tillman Act.)

Citizens United, the right-wing group, sued the Supreme Court, with right-wing hit man and former Reagan solicitor general Ted Olson as their lead lawyer.

This new case, Citizens United v. Federal Election Commission, presents the best opportunity for the Roberts Court to use its five vote majority to totally re-write the face of politics in America, rolling us back to the pre-1907 era of the Robber Barons.

As Jeffrey Toobin wrote in The New Yorker (”No More Mr. Nice Guy”): “In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.”

And the only way the modern Republican Party can recover their power over the next decade is to immediately clear away all impediments to unrestrained corporate participation in electoral politics. If a corporation likes a politician, they can make sure he or she is elected every time; if they become upset with a politician, they can carpet-bomb her district with a few million dollars worth of ads and politically destroy her.

And it looks like that’s exactly what the Roberts Court is planning. In the Citizens United case, they asked for it to be re-argued in September of this year, going all the way back to the 1980s and re-examining the rationales for Congress to have any power to regulate corporate “free speech.”

As Robert Barnes wrote in The Washington Post on June 30, 2009, “Citizens United’s attorney, former solicitor general Theodore B. Olson, had told the court that it should use the case to overturn the corporate spending ban the court recognized in Austin v. Michigan Chamber of Commerce, as well as its decision in 2003 to uphold McCain-Feingold as constitutional.”

The setup for this came in June of 2007, in the case of the Federal Election Commission v. Wisconsin Right To Life, in which the Roberts Court ruled that the FEC couldn’t prevent WRTL from running ads just because they were a corporation.

“A Moroccan cartoonist,” Justice Scalia opened his opinion with his usual dramatic flair, “once defended his criticism of the Moroccan monarch (lèse majesté being a serious crime in Morocco) as follows: ‘I’m not a revolutionary, I’m just defending freedom of speech. I never said we had to change the king-no, no, no, no! But I said that some things the king is doing, I do not like. Is that a crime?’”

“Well,” Scalia wrote, “in the United States (making due allowance for the fact that we have elected representatives instead of a king) it is a crime, at least if the speaker is a union or a corporation (including not-for-profit public-interest corporations)… That is the import of §203 of the Bipartisan Campaign Reform Act of 2002 (BCRA).”

The idea of Congress passing laws that limited corporate “free speech” was clearly horrifying to Scalia. He went after the 1990 Austin v. Michigan Chamber of Commerce case, in which the MCC was limited in their “free speech” in a political campaign because they were a corporation.

“This (Austin) was the only pre-McConnell case in which this Court had ever permitted the Government to restrict political speech based on the corporate identity of the speaker,” he complained. “Austin upheld state restrictions on corporate independent expenditures,” and, God forbid, “The statute had been modeled after the federal statute that BCRA §203 amended…”

The Austin case, Scalia concluded his opinion with four others nodding, “was a significant departure from ancient First Amendment principles. In my view, it was wrongly decided.”

Scalia also quoted at length from opinions in the Grosjean v. American Press Co case, “holding that corporations are guaranteed the ‘freedom of speech and of the press, safeguarded by the due process of law clause of the Fourteenth Amendment,’” and from the 1986 Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal. case: “The identity of the speaker is not decisive in determining whether speech is protected”; “[c]orporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster.”

The bottom line, for Scalia, was that, “The principle that such advocacy is ‘at the heart of the First Amendment’s protection’ and is ‘indispensable to decision making in a democracy’ is ‘no less true because the speech comes from a corporation rather than an individual.”

Continuing to quote from a plurality opinion in Pacific Gas, Scalia “rejected the arguments that corporate participation ‘would exert an undue influence on the outcome of a referendum vote’; that corporations would ‘drown out other points of view’ and ‘destroy the confidence of the people in the democratic process…”

He even quoted an opinion in the Grossjean case, writing that “corporations are guaranteed the ‘freedom of speech and of the press…safeguarded by the due process of law clause of the Fourteenth Amendment.’”

The Fourteenth Amendment, which says that no “person” shall be denied “equal protection of the laws,” was promulgated after the Civil War to free the slaves. But corporations have long asserted that because it says “person” rather than “natural person” it included giving, in 1868 when the Amendment was ratified into law, full Constitutional rights under the Bill of Rights to corporations. (Corporations are, at law, known as “artificial persons” and humans are “natural persons” - both have to have some sort of “personhood” in order to pay taxes, sue and be sued, etc.)

As Scalia wrote in his opinion in FEC v. Wisconsin Right To Life: “…FECA was directed to expenditures not just by ‘individuals,’ but by ‘persons,’ with ‘persons’ specifically defined to include ‘corporation[s].’”

Chief Justice Roberts weighed in, too, in the main decision. It’s a fascinating decision to read - and search for occurrences of the word “corporation” - and here’s one of Roberts’ more convoluted observations in defense of corporate free speech rights:

Accepting the notion that a ban on campaign speech could also embrace issue advocacy would call into question our holding in Bellotti that the corporate identity of a speaker does not strip corporations of all free speech rights. It would be a constitutional ‘bait and switch’ to conclude that corporate campaign speech may be banned in part because corporate issue advocacy is not, and then assert that corporate issue advocacy may be banned as well, pursuant to the same asserted compelling interest, through a broad conception of what constitutes the functional equivalent of campaign speech, or by relying on the inability to distinguish campaign speech from issue advocacy.

Bottom line - corporate free speech rights are Real Rights that Must Be Respected.

Justice Souter wrote a rather frightening dissent (this was a 5-4 decision, with the usual right-wing suspects on the “5″ side):

“McConnell was our latest decision vindicating clear and reasonable boundaries that Congress has drawn to limit ‘the corrosive and distorting effects of immense aggregations of wealth,’ and the decision could claim the justification of ongoing fact as well as decisional history in recognizing Congress’s authority to protect the integrity of elections from the distortion of corporate and union funds.

“After today, the ban on contributions by corporations and unions and the limitation on their corrosive spending when they enter the political arena are open to easy circumvention, and the possibilities for regulating corporate and union campaign money are unclear.

“The ban on contributions will mean nothing much, now that companies and unions can save candidates the expense of advertising directly, simply by running ‘issue ads’ without express advocacy, or by funneling the money through an independent corporation like Wisconsin Right To Life.”

Sounding almost depressed, Souter closed his dissent with these words: “I cannot tell what the future will force upon us, but I respectfully dissent from this judgment today.”

The attempt of corporations (and their lawyers, like Roberts was before ascending to a federal court) to usurp American democracy is nothing new, as David Souter well knew.

Fascism has always been a threat to democracy.

In early 1944 the New York Times asked Vice President Wallace to, as Wallace noted, “write a piece answering the following questions: What is a fascist? How many fascists have we? How dangerous are they?”

Vice President Wallace’s answers to those questions were published in The New York Times on April 9, 1944, at the height of the war against the Axis powers of Germany and Japan:

“The really dangerous American fascists,” Wallace wrote, “are not those who are hooked up directly or indirectly with the Axis. The FBI has its finger on those… With a fascist the problem is never how best to present the truth to the public but how best to use the news to deceive the public into giving the fascist and his group more money or more power.”

“American fascism will not be really dangerous,” he added in the next paragraph, “until there is a purposeful coalition among the cartelists, the deliberate poisoners of public information…”

Noting that, “Fascism is a worldwide disease,” Wallace further suggested that fascism’s “greatest threat to the United States will come after the war” and will manifest “within the United States itself.”

In his strongest indictment of the tide of fascism the Vice President of the United States saw rising in America, he added:

“They claim to be super-patriots, but they would destroy every liberty guaranteed by the Constitution. They demand free enterprise, but are the spokesmen for monopoly and vested interest. Their final objective toward which all their deceit is directed is to capture political power so that, using the power of the state and the power of the market simultaneously, they may keep the common man in eternal subjection.”

Finally, Wallace said, “The myth of fascist efficiency has deluded many people. … Democracy, to crush fascism internally, must…develop the ability to keep people fully employed and at the same time balance the budget. It must put human beings first and dollars second. It must appeal to reason and decency and not to violence and deceit. We must not tolerate oppressive government or industrial oligarchy in the form of monopolies and cartels.”

As Wallace’s President, Franklin D. Roosevelt, said when he accepted his party’s renomination in 1936 in Philadelphia:

“…Out of this modern civilization, economic royalists [have] carved new dynasties…. It was natural and perhaps human that the privileged princes of these new economic dynasties, thirsting for power, reached out for control over government itself. They created a new despotism and wrapped it in the robes of legal sanction…. And as a result the average man once more confronts the problem that faced the Minute Man….”

Speaking indirectly of the fascists that Wallace would directly name almost a decade later, Roosevelt brought the issue to its core:

“These economic royalists complain that we seek to overthrow the institutions of America. What they really complain of is that we seek to take away their power.”

But, he thundered in that speech:

“Our allegiance to American institutions requires the overthrow of this kind of power!”

In just a few months, we may again stand at the same crossroad Roosevelt and Wallace confronted during the Great Depression and World War II. Fascism is rising in America, this time calling itself “compassionate conservatism,” and “the free market” in a “flat” world. The point of its spear is “corporate personhood” and “corporate free speech rights.”

The Roberts’ Court’s behavior - if this prediction of their goal for this fall is accurate (and it’s hard to draw any other conclusion) - now eerily parallels the day in 1936 when Roosevelt said: “In vain they seek to hide behind the flag and the Constitution. In their blindness they forget what the flag and the Constitution stand for.” ++

All 41 Senate Republicans Seek Veto Power Over Obama’s Federal Judicial Appointments. Stop the Obstruction; End the Filibuster.
Meg White, BuzzFlash
03/03/09

A letter signed by all 41 Senate Republicans was sent to the White House and Senate Judiciary Committee Chair Patrick Leahy yesterday in which the GOP demanded inclusion in, and ultimately veto power over, the confirmation of the president’s judicial nominees.

The demand was a sharp turn-around for Republicans, who had for the past eight years been calling for the swift confirmation of then-President George W. Bush’s appointees.

The letter is couched in historical language, which notes that “our Democratic colleagues have emphasized [senate involvement in appointments] for several years” and “the principle of senatorial consultation (or senatorial courtesy) is rooted in this special responsibility, and its application dates to the Administration of George Washington.” But the GOP’s request for veto power of nominees before the judiciary even debates a particular appointment is far from the norm.

The letter gives lip service to themes of bipartisanship, saying they “look forward to working with” the president and that “the judicial appointments process has become needlessly acrimonious.” However, what they demand is nothing short of minority control. The letter states that if Republicans “are not consulted on, and approve of, a nominee from our states” they will “not support moving forward,” presumably threatening a filibuster.

The phrase “senatorial courtesy” may sound better than “threat of filibuster,” but as Politico points out, “the letter is an opening salvo in what could be a partisan battle in the Obama years.” The public perception of the use of filibusters is perhaps reflected in this language of bipartisanship that insists upon senatorial courtesy “regardless of party affiliation.” The letter emphasizes the idea of working together, when the true intent is more threat than peace offering.

The GOP’s determination to oppose Obama’s judicial appointments became clear a little more than a week after the 44th president was elected. As we reported back in November, Sen. Jon Kyl (R-AZ) pledged to get his colleagues onboard an aggressive filibuster campaign against what he termed “radical leftist” nominees he feared would come out of this new White House.

Yet, back in 2005, Kyl was firmly on the opposite side of this argument:

“This is strictly about whether or not a minority of senators is going to prevent the president from being able to name and get confirmed judges that he chooses after he’s been elected by the American people.”

In fact, the recent past offers many instances in which conservatives attempted to shame Democrats into abandoning filibuster rights in judicial appointments. The “senatorial consultation” referred to in the letter, also known as the “advice and consent” clause in the Constitution, was argued by supporters of Bush to mean that the Senate’s role was to confirm or deny appointees, not offer advice. For a comprehensive run-down on the hypocrisy of GOP lawmakers and activists regarding this argument, see this blog entry at Right Wing Watch.

It appears White House Counsel Gregory Craig has begun his outreach to Republicans in the Senate over judicial appointees, but it is unclear whether the plan outlined in the GOP Conference letter will affect the nomination process.

Kathryn Kolbert, president of People For the American Way, told BuzzFlash that the White House should not be swayed.

“The letter is so blatantly hypocritical and baseless that it should not be taken seriously by the White House,” she said.

Further, the striking of a bipartisan pose when it comes to the American judicial system is a new idea for Republicans. As Michael Greco, past president of the American Bar Association, and Patricia Wald, a former chief judge of the United States Court of Appeals for the District of Columbia Circuit, pointed out in an October 2008 op-ed:

The Bush presidency has produced a right-wing judicial imbalance… Barack Obama has a different view of the role of judges from that of Bush and McCain. Obama, a Constitutional scholar, would likely appoint judges who respect the Constitution as he does — particularly its core values of liberty and equality. Unlike Bush — who dangerously has used “presidential signing statements” to decline to enforce new laws he does not like, thereby unconstitutionally usurping power from both Congress and courts — Obama would ensure that courts safeguard the freedom of all citizens, independent from political influence of the executive branch and Congress.

A request for a comment from Leahy’s office was not returned by press time. However, he released this statement in 2004 addressing Republican complaints over Democrats’ supposed unwillingness to confirm controversial Bush appointees:

Let’s review the record.

The earlier Democratic-led Senate confirmed more Bush judicial nominees than the Republican-led Senate has. In all, Democrats have joined in confirming 173 Bush judicial nominees — 100 of them during the Democratic-led Senate.

So 173 have been confirmed. Six controversial nominees have been blocked. Two of them have been unilaterally appointed by the President during Senate recesses. One has withdrawn to rejoin a lucrative job with a law firm. That leaves three who have been blocked. One-hundred-seventy-three confirmed, to three blocked. Compare that to the more than 60 Clinton judicial nominees who Republicans blocked from even getting hearings, let alone votes.

Christine Bowman contributed to this report.

Supreme Court madness: Yet another right-wing nervous breakdown
P.M. Carpenter, BuzzFlash
Sat, 05/02/2009

Ever since conservatives went crazy last century, it’s become a Washington ritual: Some Republican president nominates a reactionary ideologue to the Court and the right screams that failure to confirm could doom Western civilization and all we hold holy; some Democratic president nominates a learned moderate and the right screams that even pondering confirmation could doom Western civilization and all we hold holy.

This phenomenon appears to be an involuntary reflex among the hyperemotional right, much as they greeted Medicare as a godless scheme to Marxinize America’s soul, or fluoridation of drinking water as a dazzling corruption of our psychic synopses, or, these days, the harmless AmeriCorps as a brain-sucking political reeducation plot.

Hence within minutes of Justice David Souter’s retirement announcement the right once again envisioned America at the abyss — everything, from religious freedom to the family unit, now wobbles at the edge of apocalyptic destruction, liberal-style — so they march forth to clang the alarm of bogeymen, or in this instance, bogeywomen, everywhere.

When it comes to a Democratic president’s Supreme Court nomination, it’s easy for the right to compile a public enemies list: it simply entails whoever is mentioned. They all, every one of them, we learn, are lifetime members of the monstrous liberal conspiracy, dastardly cultivated from the earliest age to join the socialist hordes at just the right moment and ring in a new era of atheistic, and undoubtedly forced homosexual, Stalinist and Richard Simmonsian collectivization.

So the sky is now falling. How could it not be? pleads the right. Just take a gander at President Obama’s hair-raising phalanx of unquestionable radicalism eager to rip our Constitution, nay, our very way of wholesome life, to shreds: Federal Judge Sonia Sotomayor of New York; Elena Kagan, U.S. solicitor general; Diane Wood, from the Seventh Circuit U.S. Court of Appeals; Michigan Gov. Jennifer Granholm; Stanford University law professor Kathleen Sullivan; Kim McLane Wardlaw of the U.S. Court of Appeals for the 9th Circuit; and Georgia Supreme Court Chief Justice Leah Ward Sears.

It just leaps out at you: Never has humanity been so imperiled by such a conspicuously unaccomplished throng, which, happily for the insecure right, is all feminine, and no doubt lesbians all, who, when not shredding the Constitution and forcing homosexual teachers to recruit kindergartners, go around quoting Alan Watts and the poetry of Sappho. Oh, gentle reader, these times loom dark indeed.

Because this, in 2007, when we were still basking in the many blessings of G.W. Bush’s paradise, is what candidate Obama ideally foresaw in a Supreme nominee: “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old.”

Yes, it wasn’t enough for Obama to plan a return to governmental competence; no, he wanted to haul “empathy” into it, to put some justness in justice, to better humanize a body of law which historically has favored those who could afford to write it.

That was all the right needed to convulse itself into paranoid tangles of hysteria. The National Review Online’s Ed Whelan, noted the Times’ Caucus, immediately “use[d] the Obama quote about ‘the heart, the empathy’ to deride Mr. Obama for lacking a dispassionate judgment separate from a political decision. ‘Obama’s own record and rhetoric make clear that he will seek left-wing judicial activists who will indulge their passions, not justices who will make their rulings with dispassion,’ Mr. Whelan wrote.”

You know, like splendidly detached, wholly non-ideological justices such as Antonin Scalia and Clarence Thomas, the very models of judicial dispassion.

Wendy Long, a former law clerk to the latter, issued a statement that is still flying around in search of some rational tarmac: “The current Supreme Court is a liberal, judicial activist court…. If Obama holds to his campaign promise to appoint a Justice who rules based on her own ‘deepest values’ and what’s in her own ‘heart’ — instead of what is in the Constitution and laws — he will be the first American President who has made lawlessness an explicit standard for Supreme Court Justices.”

Oookay. Watson, the needle.

And for heaven’s sake let’s not neglect Michelle Malkin’s ravings, neatly bundled in a blanket fusillade. Her “legal sources” — yep, reputation-murdering goons, she wrote — “have compiled sketches of Obama’s top three likely picks…. Gird your loins,” advised Ms. Malkin, especially for this coming tautology: “Judge Sotomayor’s nomination … would be very concerning given her hard-left record on the Court of Appeals, where she is recognized by practitioners as one of the more liberal judges.”

Naturally former dean of Harvard Law School Elena Kagan “has taken positions that are disturbingly out of the mainstream,” continued one of Malkin’s “sources,” and of course Appellate Judge Diane Wood’s “judicial views have on occasion been far outside mainstream legal thought.” Yeah, Ivy League law school deans and appellate judges are notorious for that.

And on the political side of things, but still mixed with the academic stuff of abnormal psychology, comes this from a “Republican source”:

“The GOP obviously does not have much power in D.C. these days, but just like we helped ourselves by opposing the deficit-busting stimulus, opposing left-wing nominees like [Sotomayor] is our path back to the majority.”

I kid you not. That’s the quote, that’s the mindset, that’s the unending, self-destructive, seemingly involuntary reflex of the GOP. They just don’t get it, and apparently never will. ++

No More Mr. Nice Guy
The Supreme Court’s stealth hard-liner.
Jeffrey Toobin May 25, 2009

When John G. Roberts, Jr., emerges from behind the red curtains and takes his place in the middle of the Supreme Court bench, he usually wears a pair of reading glasses, which he peers over to see the lawyers arguing before him. It’s an old-fashioned look for the Chief Justice of the United States, who is fifty-four, but, even with the glasses, there’s no mistaking that Roberts is the youngest person on the Court. (John Paul Stevens, the senior Associate Justice, who sits to Roberts’s right, is thirty-five years older.) Roberts’s face is unlined, his shoulders are broad and athletic, and only a few wisps of gray hair mark him as changed in any way from the judge who charmed the Senate Judiciary Committee at his confirmation hearing, in 2005.

On April 29th, the last day of arguments for the Court’s current term, the Justices heard Northwest Austin Municipal Utility District No. 1 v. Holder, a critical case about the future of the Voting Rights Act. Congress originally passed the law in 1965, and three years ago overwhelmingly passed its latest reauthorization, rejecting arguments that improvements in race relations had rendered the act unnecessary. Specifically, the bill, signed by President George W. Bush in 2006, kept in place Section 5 of the law, which says that certain jurisdictions, largely in the Old South, have to obtain the approval of the Justice Department before making any changes to their electoral rules, from the location of polling places to the boundaries of congressional districts. A small utility district in Texas challenged that part of the law, making the same argument that members of Congress had just discounted—that this process, known as preclearance, amounted to a form of discrimination against the citizens of the New South.

Roberts said little to the lawyer for the plaintiff, but when Neal K. Katyal, the Deputy Solicitor General, took to the lectern to defend the Voting Rights Act, the Chief Justice pounced. “As I understand it, one-twentieth of one per cent of the submissions are not precleared,” Roberts said. “That, to me, suggests that they are sweeping far more broadly than they need to to address the intentional discrimination under the Fifteenth Amendment”—which guarantees the right to vote regardless of race.

“I disagree with that, Mr. Chief Justice,” Katyal said. “I think what it represents is that Section 5 is actually working very well—that it provides a deterrent.” According to Katyal, the fact that the Justice Department cleared almost all electoral changes proved, in effect, that the South had been trained, if not totally reformed.

Roberts removed his glasses and stared down at Katyal. “That’s like the old elephant whistle,” he said. “You know, ‘I have this whistle to keep away the elephants.’ You know, well, that’s silly. ‘Well, there are no elephants, so it must work.’ ”

Roberts was relentless in challenging Katyal: “So your answer is that Congress can impose this disparate treatment forever because of the history in the South?”

“Absolutely not,” Katyal said.

“When can they—when do they have to stop?”

“Congress here said that twenty-five years was the appropriate reauthorization period.”

“Well, they said five years originally, and then another twenty years,” Roberts said, referring to previous reauthorizations of the act. “I mean, at some point it begins to look like the idea is that this is going to go on forever.”

And this, ultimately, was the source of Roberts’s frustration—and not just in this case. In a series of decisions in the past four years, the Chief Justice has expressed the view that the time has now passed when the Court should allow systemic remedies for racial discrimination.

The previous week, the Court heard a challenge by a group of white firefighters in New Haven who were denied promotions even though they had scored better than black applicants on a test. Roberts was, if anything, even more belligerent in questioning the lawyer defending the city. “Now, why is this not intentional discrimination?” he asked. “You are going to have to explain that to me again, because there are particular individuals here,” he said. “And they say they didn’t get their jobs because of intentional racial action by the city.” He added, “You maybe don’t care whether it’s Jones or Smith who is not getting the promotion,” he said. “All you care about is who is getting the promotion. All you care about is his race.”

When Antonin Scalia joined the Court, in 1986, he brought a new gladiatorial spirit to oral arguments, and in subsequent years the Justices have often used their questions as much for campaign speeches as for requests for information. Roberts, though, has taken this practice to an extreme, and now, even more than the effervescent Scalia, it is the Chief Justice, with his slight Midwestern twang, who dominates the Court’s public sessions.

Roberts’s hard-edged performance at oral argument offers more than just a rhetorical contrast to the rendering of himself that he presented at his confirmation hearing. “Judges are like umpires,” Roberts said at the time. “Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.” His jurisprudence as Chief Justice, Roberts said, would be characterized by “modesty and humility.” After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

Two days after the argument in the Voting Rights Act case, David H. Souter announced his resignation, giving President Barack Obama his first chance to nominate a Justice to the Court. The first Democratic nominee to the Court in fifteen years will confront what is now, increasingly, John Roberts’s Court. Along with Scalia, Clarence Thomas, Samuel A. Alito, Jr., and (usually) Anthony Kennedy, the majority of the Court is moving right as the rest of the country—or, at least, the rest of the federal government—is moving left. At this low moment in the historical reputation of George W. Bush, his nominee for Chief Justice stands in signal contrast to what appears today to be a failed and fading tenure as President. Roberts’s service on the Court, which is, of course, likely to continue for decades, offers an enduring and faithful reflection of the Bush Presidency.

The Justices of the Supreme Court, as a rule, spare themselves unnecessary tedium. Their public hearings are lean and to the point; they hear lawyers’ arguments and, later, announce their decisions. Still, one relic of more leisurely times remains. Several times a month, before the start of the day’s oral arguments, the Justices allow attorneys to be sworn in as members of the Supreme Court bar in person, a process that can take fifteen minutes. (Most lawyers now conduct the swearing-in process by mail.) Rehnquist barely tolerated the practice, rushing through it and mumbling the names, and several colleagues (notably Souter) display an ostentatious boredom that verges on rudeness.

John Roberts, in contrast, welcomes each new lawyer with a smile, and when fathers or mothers put forth their lawyer children for admission—a tradition of sorts at the Court—the Chief makes sure to acknowledge “your son” and “your daughter” on the record. Everyone beams. It’s a small thing, of course, but just one example of Roberts’s appealing behavior in public, much as the nation viewed it during his testimony before the Judiciary Committee. At the time, Senator Dick Durbin, an Illinois Democrat who voted against Roberts’s confirmation, nonetheless observed that he was so ingratiating that he had “retired the trophy” for performance by a judicial nominee. When, early in his tenure, a light bulb exploded in the courtroom in the middle of a hearing, Roberts quipped, “It’s a trick they play on new Chief Justices all the time.” Laughter broke the tension.

Roberts was born in Buffalo on January 27, 1955, and raised in northern Indiana, where his father was an executive with a steel company and his mother a homemaker. (He has three sisters.) Jackie, as he was known, was educated at Catholic schools, and graduated from La Lumiere, at the time an all-boys parochial boarding school in LaPorte. He was the classic well-rounded star student—valedictorian and captain of the football team. He went on to Harvard, majored in history, and graduated in three years, summa cum laude.

At Harvard Law School, Roberts continued to excel, in an even more competitive atmosphere. “He was extremely smart,” said Laurence Tribe, the liberal scholar who taught Roberts constitutional law and grew to know him through his work on the Law Review. “He was really very good at being thoughtful and careful and not particularly conspicuous. He was very lawyerly, even as a law student.” In the mid-seventies, the atmosphere at Harvard still reflected the tumult of the sixties. Roberts stood out as a conservative, though not a notably intense one. “On the Law Review, John was the managing editor, so that meant he gave us our work assignments every day,” Elizabeth Geise, who was a year behind Roberts in law school, said. “He was very honest, straightforward, lot of integrity, fair. He was conservative, and we all knew that. That was unusual in those days. You couldn’t think of a guy who was a straighter arrow.” After graduating magna cum laude, in 1979, Roberts first clerked for Henry J. Friendly, of the federal appeals court in New York, who was legendary for his scholarship and erudition, but was not known as an especially partisan figure.

From New York, Roberts moved to the Supreme Court, where he became a clerk for Associate Justice William H. Rehnquist, and it was in Washington that his political education began.

Rehnquist, appointed by Richard Nixon in 1972, was, in his first decade as a Justice, almost a fringe right-wing figure on the Court, which was then dominated by William J. Brennan, Jr. But Ronald Reagan’s election to the Presidency, which took place just a few months into Roberts’s clerkship, lifted Rehnquist to power and, more broadly, gave flight to the conservative legal movement.

At that early stage of the Reagan era, conservatives had a problem, because there were no institutions where like-minded lawyers could be nurtured; the Federalist Society, the conservative legal group, was not founded until 1982. “Roberts got a lot of attention because he clerked for Rehnquist,” said Steven Teles, a professor of political science at Johns Hopkins and the author of “The Rise of the Conservative Legal Movement.” “Without the Federalist Society, there were not a lot of other ways for the Administration to make sure that they were getting true conservatives. The Rehnquist clerkship marked Roberts as someone who could be trusted.”

As a former law clerk to Rehnquist, not to mention his immediate successor as Chief Justice, Roberts was an obvious choice to deliver the annual lecture named for Rehnquist at the University of Arizona law school in February. Roberts is a gifted public speaker—relaxed, often funny, sometimes self-deprecating—and he began his speech with a warm remembrance of his mentor. Like Barack Obama, Roberts can make reading from a prepared text look almost spontaneous. “I first met William Rehnquist more than twenty-eight years ago,” he told the audience in Tucson. “The initial meeting left a strong impression on me. Justice Rehnquist was friendly and unpretentious. He wore scuffed Hush Puppy shoes. That was my first lesson.

Clothes do not make the man. The Justice sported long sideburns and Buddy Holly glasses long after they were fashionable. And he wore loud ties that I am confident were never fashionable.”

Before long, though, Roberts steered away from nostalgic reverie and into constitutional controversy. He maintained his relaxed and conversational cadence, but his words reflected a sharply partisan world view. “When Justice Rehnquist came onto the Court, I think it’s fair to say that the practice of constitutional law—how constitutional law was made—was more fluid and wide-ranging than it is today, more in the realm of political science,” Roberts said. “Now, over Justice Rehnquist’s time on the Court, the method of analysis and argument shifted to the more solid grounds of legal arguments—what are the texts of the statutes involved, what precedents control. Rehnquist, a student both of political science and the law, was significantly responsible for that seismic shift.”

Rehnquist joined the Court toward the end of its liberal heyday—the era when the Justices expanded civil-rights protections for minorities, established new barriers between church and state, and, most famously, recognized a constitutional right to abortion for women. This period, in Roberts’s telling, was the bad old days.

These sentiments reflect a common view for conservatives like Roberts. “There really was a sense at the time among the lawyers in his Administration that Reagan had a mandate for comprehensive change in the nature of government,” Teles said. “They thought a lot of what the liberals had done in creating, say, affirmative action was simply interest-group politics and not really ‘law’ at all, and it was their job to restore professionalism to the legal profession in government.”

“I heard about John, and I immediately tried to hire him,” Charles Fried, the Harvard law professor who was Reagan’s second Solicitor General, said. Kenneth Starr, who was chief of staff to William French Smith, Reagan’s Attorney General, had hired Roberts as a special assistant to Smith. Roberts then went to work at the White House, as an associate counsel.

All the lawyers who worked for Reagan were, in some general sense, conservative, but there is a difference between those, like Roberts, who came of age during Reagan’s first term in office and those who prospered in his second. “The Department of Justice in the first term was full of serious, principled people,” Teles said. “They didn’t see themselves as part of the Christian right, or even necessarily part of a larger political movement, but they did think of themselves as real lawyers who were reacting to what they thought of as the excesses of liberalism.” They believed, Teles said, “in what they called judicial restraint and strict constructionism. Roberts comes out of this world.” Liberal critics, in turn, regard this view as unduly deferential to the status quo and thus a kind of abdication of the judicial role.

The legal philosophy of Edwin Meese III, which promoted an “originalist” view of the Constitution, dominated Reagan’s second term. Originalists, whose ranks now include Scalia and Thomas, believe that the Constitution should be interpreted in line with the intentions and beliefs of its framers. “John was not part of the Meese crowd,” one lawyer who worked with Roberts in the Reagan years said. “They cared more about a strict separation of powers, and even some limitations on executive and government power.”

Originalists and judicial-restraint conservatives generally reach similar conclusions on legal issues, but their reasoning differs. Both, for example, believe that the Constitution does not protect a woman’s right to abortion. “An originalist on abortion would say that at the time of the Constitution, or of the adoption of the Fourteenth Amendment, abortion was prohibited, and that’s it,” Akhil Reed Amar, a professor at Yale Law School, said. “A conservative like Roberts, on the other hand, wouldn’t look immediately at the question of whether all abortions should be outlawed, but examine the specific restriction on abortion rights at issue in the case and probably uphold it. He’d avoid the culture-war rhetoric and gradually begin cutting back on abortion rights without making lots of noise about getting rid of it altogether.” In 2007, Roberts joined Kennedy’s opinion that followed this approach in upholding a federal anti-abortion law. The Court’s two originalists, Scalia and Thomas, wrote a separate concurring opinion in that case, urging, as they had before, that Roe v. Wade be overturned once and for all.

In documents from the Reagan era that were made public during Roberts’s confirmation hearing, the young lawyer emerges as a loyal (and low-level) foot soldier in the Reagan revolution. On issues where there was disagreement within the Administration, Roberts’s memos generally show him supporting the more conservative position, especially on matters of race and civil rights. Roberts said that affirmative action required the “recruiting of inadequately prepared candidates,” and sought a narrow scope for Title IX, the law that mandates equal rights for men and women in educational settings. In 1981, Roberts wrote that a revision of the Voting Rights Act would “establish essentially a quota system for electoral politics by creating a right to proportional racial representation.” (Reagan signed the revision anyway.)

Roberts’s reputation soared in his White House years. “He was already on that superstar trajectory,” said Henny Wright, a lawyer, now living in Dallas, who became friends with Roberts in Washington at the time. “He was pretty much like he is today, except without the bald spot. Extremely attractive, in every sense of the word. He’s smart, he’s funny, he’s gregarious, he’s good-looking. In those days, he was never too busy to play a round of golf. He’s not a very good golfer, but, unlike a lot of golfers, he doesn’t let that ruin his day or your day.” Roberts’s wit even came through in the usually stultifying format of the interoffice memo. In 1983, Fred Fielding, the White House counsel, asked Roberts to evaluate a proposal then in circulation to create a kind of super appeals court to assist the Supreme Court with its ostensibly pressing workload. In response, Roberts noted, “While some of the tales of woe emanating from the court are enough to bring tears to the eyes, it is true that only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.”

With the completion of oral arguments in the Voting Rights Act case, the Court has now entered the most contentious weeks of its year. The Justices almost always save their most controversial cases for the end of the term, and this year tensions may run higher than usual. For starters, the Supreme Court Building is now in the sixth year of a renovation—the first since it was dedicated, in 1935—that has forced each of the Justices to move to temporary chambers. The Justices do not take kindly to such disruptions, especially because they are now, by historical standards, a very old Court. John Paul Stevens just turned eighty-nine, and four Justices (Ruth Bader Ginsburg, Scalia, Kennedy, and Stephen Breyer) are in their seventies. The renovation project will also involve closing the entrance to the Court at the top of its iconic front steps—a change that is said to be a security measure but that several Justices regard as a distressing symbol. Souter’s impending departure, and unknown replacement, is another source of anxiety.

The substance of the Court’s work, of course, contributes most to the strains among the Justices. The Chief Justice has not yet embraced one particular judicial principle as his special interest—in the way that Rehnquist chose federalism and states’ rights—but Roberts is clearly moved by the subject of race, as illustrated by his combative performance during the Texas and New Haven arguments. His concerns reflect the views that prevailed at the Reagan White House: that the government should ignore historical or even continuing inequities and never recognize or reward individuals on the basis of race. In a recent case, a majority of the Justices applied a provision of the Voting Rights Act to reject part of a Texas redistricting plan that was found to hurt Hispanic voters. Roberts dissented from that decision, writing, in an unusually direct expression of disgust, “It is a sordid business, this divvying us up by race.”

Race was also at the center of the most important opinion so far in his career as Chief Justice—a case that also displayed his pugnacious style in oral argument. Parents Involved in Community Schools v. Seattle School District No. 1 concerned a challenge to the city’s racial-integration plan. The Seattle plan assigned students to schools based on a variety of factors, including how close the student lived to the school and whether siblings already attended, but the goal of maintaining racial diversity was considered as well. At the oral argument, on December 4, 2006, the Chief Justice tore into Michael F. Madden, the lawyer for the Seattle school district.

“You don’t defend the choice policy on the basis that the schools offer education to everyone of the same quality, do you?” he asked, and Madden said that he did defend it on those grounds.

“How is that different from the ‘separate but equal’ argument?” Roberts went on. “In other words, it doesn’t matter that they’re being assigned on the basis of their race because they’re getting the same type of education.”

“Well, because the schools are not racially separate,” the lawyer said. “The goal is to maintain the diversity that existed within a broad range in order to try to obtain the benefits that the educational research shows flow from an integrated education.”

Roberts wouldn’t let the issue go. “Well, you’re saying every—I mean, everyone got a seat in Brown as well; but, because they were assigned to those seats on the basis of race, it violated equal protection. How is your argument that there’s no problem here because everybody gets a seat distinguishable?”

“Because segregation is harmful,” Madden said. “Integration, as this Court has recognized . . . has benefits.”

In the Seattle case, the Court ruled by a five-to-four vote that the integration plan did indeed violate the equal-protection clause of the Constitution, and Roberts assigned himself the opinion. The Chief Justice said that the result in the Seattle case was compelled by perhaps the best-known decision in the Court’s history, Brown v. Board of Education. In that ruling, in 1954, the Court held that school segregation was unconstitutional and rejected the claim that segregated schools were “separate but equal.” In Roberts’s view, there was no legal difference between the intentionally segregated public schools of Topeka, Kansas, at issue in Brown, and the integration plan in Seattle, five decades later. In the most famous passage so far of his tenure as Chief Justice, Roberts wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Roberts’s opinion drew an incredulous dissent from Stevens, who said that the Chief Justice’s words reminded him of “Anatole France’s observation” that the “majestic equality” of the law forbade “rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” For dozens of years, the Court had drawn a clear distinction between laws that kept black students out of white schools (which were forbidden) and laws that directed black and white students to study together (which were allowed); Roberts’s decision sought to eliminate that distinction and, more generally, called into question whether any race-conscious actions by government were still constitutional. “It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision,” Stevens concluded.

In Roberts’s first term, when Alito also joined the Court, there were fewer controversial cases than usual, as well as an apparent effort by the Justices to reach more unanimous decisions. But the Seattle case came down on June 28, 2007, which was the last day of Roberts’s second full term as Chief Justice and a year of routs for liberals on the Court. That same day, the Justices overturned a ninety-six-year-old precedent in antitrust law and thus made it harder to prove collusion by corporations. Also that year they upheld the federal Partial Birth Abortion Ban Act, in Kennedy’s opinion, even though the Court had rejected a nearly identical law just seven years earlier. The case of Ledbetter v. Goodyear, brought by a sympathetic grandmother who had been paid far less than men doing the same work at the tire company, became a political flashpoint because the conservative majority, in an opinion by Alito, imposed seemingly insurmountable new burdens on plaintiffs in employment-discrimination lawsuits. (Ginsburg, in an unusual move, read her dissent from the bench.) In all these cases, Roberts and Alito joined with Scalia, Clarence Thomas, and Kennedy to make the majority. On this final day, Breyer offered an unusually public rebuke to his new colleagues. “It is not often in the law that so few have so quickly changed so much,” Breyer said.

Roberts’s sure-handed sense of pub lic relations has deserted him only once during his tenure so far. The Chief Justice, as the leader of the federal judiciary, is obligated to prepare an annual report, which historically has been a fairly anodyne document—a set of modest requests to Congress, like faster confirmation of judges or new construction funds for courthouses. In 2006, however, Roberts devoted his entire report to arguing for raises for federal judges, and he even went so far as to call the status quo on salaries a “constitutional crisis.” Most federal judges are paid a hundred and sixty-nine thousand dollars, and at that point they had not had a real raise in fifteen years. This request to Congress was universally popular among Roberts’s colleagues, who were long used to watching their law clerks exceed their own salaries in their first year of private practice.

Congress, however, snubbed the Chief Justice. Six-figure salaries, lifetime tenure, and the opportunity to retire at full pay did not look inadequate to the elected officials, who make the same amount as judges and must face ordinary voters. Roberts’s blindness on the issue may owe something to his having inhabited a rarefied corner of Washington for the past three decades.

In 1986, after his service in the Reagan White House, Roberts went to the Washington law firm of Hogan & Hartson, where he developed a successful practice as an appellate advocate. “John’s a very, very conservative fellow, and I’m the opposite, but that was never a problem for us,” E. Barrett Prettyman, Jr., a longtime partner at the firm and a co-counsel with Roberts on dozens of cases, said. “Our work was mostly corporate, some criminal, a few individuals as clients. The key to his success was that he was very clear, very articulate, and never confusing.”

When George H. W. Bush won the Presidency, in 1988, his new Solicitor General, Kenneth Starr, hired Roberts again, this time as his principal deputy. Near the end of the first Bush’s term, Roberts was nominated to the United States Court of Appeals for the D.C. Circuit, but Democrats in the Senate, sensing a victory in the approaching 1992 election, refused to let him come up for a vote. So, for Bill Clinton’s eight years in office, Roberts went back to Hogan & Hartson, where, according to his financial-disclosure forms, he made more than a million dollars a year. In 1996, Roberts, then forty-one, married Jane Sullivan, a fellow-lawyer, also in her forties, who now works as a legal recruiter. In 2000, they adopted two children, who are both now eight years old.

While at Hogan, Roberts became a lunchtime regular at the table of J. William Fulbright, the former Arkansas senator, in the firm’s cafeteria. Fulbright was affiliated with Hogan from the time of his departure from office, in 1974, until his death, in 1995, and he presided over a salon of sorts for partners with an interest in politics. “It was a politically diverse group, and they’d just get together and talk about the issues of the day,” David Leitch, who was also a partner at Hogan, said. “John is interested in political issues, he is interested in the process of politics. He used to like to handicap elections.” Roberts took a direct role in the contested 2000 election, travelling to Tallahassee to assist George W. Bush’s legal team in the recount litigation. He was rewarded for his efforts the following year, when Bush, like his father before him, nominated Roberts to the D.C. Circuit. He was confirmed two years later, and he served there until Bush chose him for the Supreme Court.

In one respect, Roberts’s series of prestigious jobs all amounted to doing the same thing for more than twenty years—reading and writing appellate briefs and, later, appellate decisions. During the heart of his career, Roberts’s circle of professional peers consisted entirely of other wealthy and accomplished lawyers. In this world, a hundred and sixty-nine thousand dollars a year might well look like an unconscionably low wage. “Some judges have actually left the bench because they could make more money in private practice, and some Justices have complained privately about how it’s almost impossible to educate your family on that kind of money,” Prettyman said. “You don’t want an unhappy court, judges who are worried about their salaries. John saw that.”

Roberts’s career as a lawyer marked him in other ways as well. In private practice and in the first Bush Administration, a substantial portion of his work consisted of representing the interests of corporate defendants who were sued by individuals. For example, shortly before Roberts became a judge, he successfully argued in the Supreme Court that a woman who suffered from carpal-tunnel syndrome could not win a recovery from her employer, Toyota, under the Americans with Disabilities Act. Likewise, Roberts won a Supreme Court ruling that the family of a woman who died in a fire could not use the federal wrongful-death statute to sue the city of Tarrant, Alabama. In a rare loss in his thirty-nine arguments before the Court, Roberts failed to persuade the Justices to uphold a sixty-four-million-dollar fine against the United Mine Workers, which was imposed by a Virginia court after a strike.

One case that Roberts argued during his tenure in the Solicitor General’s office in George H. W. Bush’s Administration, Lujan v. National Wildlife Federation, seems to have had special resonance for him. The issue involved the legal doctrine known as “standing”—one of many subjects before the Supreme Court that appear to be just procedural in nature but are in fact freighted with political significance. “One of the distinctive things about American courts is that we have all these gatekeeper provisions that keep courts from getting involved in every single dispute,” Samuel Issacharoff, a professor at New York University School of Law, says. “The doctrine of standing says that you only want lawsuits to proceed if the plaintiffs are arguing about a real injury done to them, not simply that they want to be heard on a public-policy question.” Liberals and conservatives have been fighting over standing for decades. “Standing is a technical legal doctrine, but it is shorthand for whether courts have a role in policing the conduct of government,” Issacharoff says. “Typically, the public-interest advocates, usually on the liberal side of the spectrum, favor very loose standing doctrines, and people who want to protect government from scrutiny, who tend to be on the conservative side, want to require more and more specific standing requirements.”

Lujan v. National Wildlife Federation was one of the Rehnquist Court’s most important standing cases. The environmental group had challenged the Reagan Administration’s effort to make as much as a hundred and eighty million acres of federal land available for mining. In an argument before the Court on April 16, 1990, Roberts said that the mere allegation that a member of the National Wildlife Federation used land “in the vicinity” of the affected acres did not entitle the group to standing to bring the case. “That sort of interest was insufficient to confer standing, because it was in no way distinct from the interest any citizen could claim, coming in the courthouse and saying, ‘I’m interested in this subject,’ ” Roberts told the Justices. By a vote of five to four, the Justices agreed with Roberts and threw out the case. According to Issacharoff, “Lujan was the first big case that said, Just because you are really devoted to a cause like the environment, that doesn’t mean we are going to let you into the courthouse.”

As a lawyer and now as Chief Justice, Roberts has always supported legal doctrines that serve a gatekeeping function. In DaimlerChrysler v. Cuno, a group of taxpayers in Toledo, Ohio, went to court to challenge local tax breaks that were given to the carmaker to expand its operations in the city; the Supreme Court held that the plaintiffs lacked standing. In a broadly worded opinion that relied in part on the Lujan case, Roberts suggested that most state and local activities were off limits to challenge from taxpayers. “Affording state taxpayers standing to press such challenges simply because their tax burden gives them an interest in the state treasury, ” Roberts wrote, “would interpose the federal courts as virtually continuing monitors of the wisdom and soundness of state fiscal administration, contrary to the more modest role Article III envisions for federal courts.” As usual with Roberts’s jurisprudence, the citizen plaintiffs were out of luck.

In the past four years, Roberts and Scalia, while voting together most of the time, have had a dialogue of sorts about how best to address the Court’s liberal precedents. For example, Roberts wrote a narrow opinion in 2007 holding that the McCain-Feingold campaign-finance law did not apply to certain political advertisements in Wisconsin. Scalia agreed with Roberts’s conclusion in the case, but he said that the Chief Justice should have gone farther and declared the whole law unconstitutional, on free-speech grounds. Scalia insisted that Roberts was just being coy, that his opinion had in fact overruled an earlier ruling that upheld the campaign-finance law, but that he wouldn’t come out and say it. “This faux judicial restraint is judicial obfuscation,” Scalia wrote.

In a case about the free-speech rights of students, Roberts wrote the opinion approving the suspension of a high-school student in Alaska for holding a sign that said “BONG HiTS 4 JESUS” on a street off school grounds. The Chief Justice said the school had the right to “restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use.” Thomas, characteristically, wrote a concurring opinion urging the Court to go farther and hold that students have no First Amendment rights at all. But the larger point remained that Roberts, Scalia, and Thomas voted together in that case, as they do virtually all the time. “These kinds of distinctions among the conservatives are just angels-on-the-head-of-a-pin stuff,” says Theodore B. Olson, the former Solicitor General, who remains a frequent advocate before the Court. “Roberts is just what he said he would be in his hearing—a judge who believes in humility and judicial restraint.” Like the other conservatives, for instance, Roberts has been a consistent supporter of death sentences, and he wrote the Court’s opinion holding that lethal injection does not amount to the sort of cruel and unusual punishment prohibited by the Eighth Amendment. Many liberals, too, feel that Roberts is far more similar to his conservative colleagues than he appeared to be at the time of his confirmation hearing. According to Harvard’s Laurence Tribe, “The Chief Justice talks the talk of moderation while walking the walk of extreme conservatism.”

On issues of Presidential power, Roberts has been to Scalia’s right—a position that’s in keeping with his roots in the Reagan Administration. “John was shaped by working at the White House, where you develop a mind-set of defending Presidential power,” the lawyer who worked with Roberts in the Reagan years said. Just a few days before Bush appointed Roberts to the Supreme Court, in 2005, Roberts joined an opinion on the D.C. Circuit in Hamdan v. Rumsfeld that upheld the Bush Administration’s position on the treatment of detainees at Guantánamo Bay. (With Roberts recused from the case, the Supreme Court overruled that decision in 2006, by a five-to-three vote, with Kennedy joining the liberals.) Scalia has occasionally shown a libertarian streak, but Roberts, true to his White House past, has consistently voted to uphold the prerogatives of the executive, especially the military, against the other branches. Last year, Roberts dissented from Kennedy’s opinion for a five-to-four Court in Boumediene v. Bush, which held that the Military Commissions Act of 2006 violated the rights of Guantánamo detainees. Roberts saw the case as mostly a contest between the executive branch and the rest of the federal government. “Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants,” Roberts wrote in his dissent. “One cannot help but think . . . that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.”

Roberts’s solicitude for the President and the military extends to lower-profile cases as well. In Winter v. National Resources Defense Council, the question was whether the Navy had to comply with a federal environmental law protecting dolphins and other wildlife while conducting submarine exercises off California. Roberts said no. “We do not discount the importance of plaintiffs’ ecological, scientific, and recreational interests in marine mammals,” the Chief Justice wrote. “Those interests, however, are plainly outweighed by the Navy’s need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines.” Though Roberts was writing for only a five-to-four majority, he added, “Where the public interest lies does not strike us as a close question.”

On the morning of January 20th, the Supreme Court held a small reception for the Justices and their guests before they all headed across First Street to the Capitol for the Inauguration of Barack Obama. Friends present say that Roberts was nervous that morning. He was used to appearing before crowds, of course, but this was the first time that he would be performing the most public of the Chief Justice’s duties—administering the Presidential oath of office—and the audience, in person and by broadcast, would be in the many millions. In keeping with his perfectionist nature, Roberts had rehearsed the oath ceremony and had long since committed the words to memory.

Through intermediaries, Roberts and Obama had agreed how to divide the thirty-five-word oath for the swearing in. Obama was first supposed to repeat the clause “I, Barack Hussein Obama, do solemnly swear.” But, when Obama heard Roberts begin to speak, he interrupted Roberts before he said “do solemnly swear.” This apparently flustered the Chief Justice, who then made a mistake in the next line, inserting the word “faithfully” out of order. Obama smiled, apparently recognizing the error, then tried to follow along. Roberts then garbled another word in the next passage, before correctly reciting, “preserve, protect, and defend the Constitution of the United States.”

At the lunch in the Capitol that followed, the two men apologized to each other, but Roberts insisted that he was the one at fault. For the day, Roberts lost some of his customary equanimity as he brooded about making such a public mistake. (He went to the White House the next day, and the oath was repeated, correctly, to forestall any challenges to its legality.) Since then, Roberts has put the embarrassment behind him and even made it the subject of a little humor at his own expense. On January 26th, he presided over the installation of the new leader of the Smithsonian Institution. “Those of you who have read it will see from the program that the Smithsonian some time ago adopted the passing of a key in lieu of the administration of an oath,” Roberts said. “I don’t know who was responsible for that decision. But I like him.”

Still, the flubbed oath will always link Roberts and Obama, whose lives reflect considerable similarities as well as major differences. They belong to roughly the same generation—Roberts is six years older—and received similar educations. Roberts and Obama graduated from Harvard Law School in 1979 and 1991, respectively—Obama had taken time off to work as a community organizer in Chicago—and both served on the Law Review. (Obama was president, the top position; Roberts, in his capacity as managing editor, was just below that.) They share an even-tempered disposition, obvious but unshowy intelligence, and fierce ambition leavened by considerable charm.

But the distinctions between these two men are just as apparent. Obama is the first President in history to have voted against the confirmation of the Chief Justice who later administered his oath of office. In his Senate speech on that vote, Obama praised Roberts’s intellect and integrity and said that he would trust his judgment in about ninety-five per cent of the cases before the Supreme Court. “In those five per cent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision,” Obama said. “In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions . . . the critical ingredient is supplied by what is in the judge’s heart.” Obama did not trust Roberts’s heart. “It is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak,” the Senator said. The first bill that Obama signed as President was known as the Lilly Ledbetter Fair Pay Act; it specifically overturned the interpretation of employment law that Roberts had endorsed in the 2007 case.

In a way, Obama offers a mirror image of the view of the Supreme Court that Roberts presented in his tribute to Rehnquist in Tucson. To Obama, what Roberts called the “solid grounds of legal arguments” was only the beginning of constitutional interpretation, not the end. In his statement announcing Souter’s resignation, on May 1st, the President defined the qualities he was looking for in a Justice in a very different way from Roberts’s description of Rehnquist. “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook. It is also about how our laws affect the daily realities of people’s lives—whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation,” Obama said. “I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.”

The differences between Roberts and Obama include such issues as abortion and affirmative action, but they extend beyond such familiar legal battlegrounds to what Roberts called, in his Tucson speech, “the nature of the Court itself.” “When Justice Rehnquist went on the Court, a minority of the Justices had been former federal judges,” Roberts observed. “Today, for the first time in its history, every member of the Court was a federal court-of-appeals judge before joining the Court—a more legal perspective, and less of a policy perspective.”

Obama does not regard the all-former-judge makeup of the Supreme Court as an unalloyed virtue. “The obvious sources of candidates have been people already on the bench and people who are distinguished academic legal scholars and teachers,” Gregory Craig, the White House counsel, told me in February. “But he’s also looking for lawyers who have been public defenders or prosecutors, or representing points of view with respect to immigration or the Innocence Project. He doesn’t think you have to be a member of the circuit courts of appeals to be on the Supreme Court.” Obama has spoken fondly of Earl Warren, the fourteenth Chief Justice, who came to the Court from the governorship of California.

When Vice-President Biden publicly mocked Roberts about his gaffe at a ceremony shortly after the Inauguration, Obama shot him a scathing look of rebuke. (Biden later called Roberts to apologize.) Still, there is no disputing that the President and the Chief Justice are adversaries in a contest for control of the Court, and that both men come to that battle well armed. Obama has at most one more chance to take the oath of office, and Roberts will probably have a half-dozen more opportunities to get it right. But each time Roberts walks down the steps of the Capitol to administer the oath, he may well be surrounded—and eventually outvoted—by Supreme Court colleagues appointed by Barack Obama. ++

The New Nattering Nabobs of Negativism Are Gunning For Obama’s Judicial Nominees: A Republican Strategy That We Must All Hope Fails
JOHN W. DEAN, FindLaw
Friday, April 17, 2009

There is a high-stakes game for the future of the federal judiciary currently underway, albeit, at this time, still quietly being played out behind-the-scenes. Over a month ago, the New York Times revealed the then-imminent selection by the Obama Administration of “a small stream of nominees to the federal appeals courts” throughout the nation. The story even floated a few names of potential nominees. But little has happened since then.

Thus far, there has been no stream of nominees; indeed, barely a trickle. No one keeps score better than the Alliance for Justice, which reports three Obama nominees so far: Gerald Lynch for the U.S. Court of Appeals for the Second Circuit, Andre Davis for the Fourth Circuit, and David Hamilton for the Seventh Circuit.

The reason Obama’s judicial nominees have not been streaming forth is that conservatives in the Senate are doing their best to dam that stream, literally and figuratively. To use the phrase coined by former Nixon speechwriter Bill Safire, the Obama Administration is being blocked by what can accurately be described as the new “nattering nabobs of negativism.”

According to the coiner of the phrase, Safire, nattering is complaining; a nabob – taken from Urdu – is a self-important potentate; and negativism, of course, is habitual skepticism, the tendency to be pessimistic, seeing the world in the worst light possible. This outlook is very much the one possessed by the remarkably pompous contemporary conservative Republican leaders, particularly those in the Senate.

Nattering Negative Nabobs of Conservatism: Working to Block Change In the Judiciary

Needless to say, conservatism is inherently negative (see William F. Buckley’s founding motto and mission statement for the National Review: “It stands athwart history, yelling Stop”). But since President Obama’s election, the conservative nabobs have been yelling STOP before anything even starts. They have truly fulfilled Safire’s colorful alliterating appellation for overbearing naysayers.

Well-known nabobs like John Boehner and Eric Cantor have led House Republicans to vote in-bloc against the stimulus legislation, and the half-dozen Republican nabobs serving as governors announced they would reject all or some of the federal stimulus money – until the citizens of their states turned on them.

Not as well-known are the nattering negative nabobs of the Senate, who have laid down a gauntlet to block President Obama’s judicial appointees, before they even arrive in the Senate Judiciary Committee. These are Senators who are having trouble adjusting to the fact that there is no longer a Republican in the White House, and in no area is this truth more difficult for them to accept than with the prospective loss of conservative control, as well, of the federal judiciary. These are men like Senators John Cornyn of Texas and Jon Kyl of Arizona – to mention but two of two dozen.

These men were part of the effort by all forty-one Republican members of the Senate to warn the new president that if he wanted to avoid a huge fight over the future of the federal judiciary, then he should start by re-nominating a number of Bush nominees who had not been confirmed before the Bush presidency ended. This unprecedented request was chutzpah on stilts.

Their letter to President Obama spelled out another demand: “[I]f we are not consulted on, and approve of, a nominee from our state, the Republican Conference will be unable to support moving forward on that nominee” – a thinly-veiled threat of a filibuster on any Obama nominee who fails to meet the GOP standard. In short, if a GOP senator rejects a judicial nominee for a court with jurisdiction in his state, the entire Republican Conference has agreed to join that senator to hold up the nomination. (It takes sixty votes to prevent a filibuster, so if the Republican Conference remains together, it can block any Obama nominee from confirmation.) Clearly, Republicans plan to fight any effort to change the conservative ideological make-up of the federal judiciary.

Conservative Ownership of the Federal Judiciary Is Now Seriously Threatened, But the Idea that Bush Nominees Previously Were Largely Blocked Is Absurd

Conservative alarm sirens sounded last fall, as it became clear that Barack Obama was likely to win the November 2008 presidential election. A typical example of the conservative distress was that of Federalist Society co-founder (and nabob) Steven Calabresi, who went to the editorial pages of the Wall Street Journal – the bulletin board for nattering negativism.

Employing the intellectual legerdemain that has become the hallmark of contemporary conservative scholarship, where fancy becomes fact, Northwestern law professor Calabresi opened his call to arms by claiming that “[o]ne of the great unappreciated stories of the past eight years is how thoroughly Senate Democrats thwarted efforts by President Bush to appoint judges to the lower federal courts,” most importantly, the U.S. Courts of Appeal throughout the country in general and in the District of Columba (with its jurisdiction over many government actions) in particular.

Here, however, “thoroughly thwarting” appears to mean that Bush II failed to win confirmation for a few of his most radical nominees, for he certainly managed to pack the federal courts with over 316 judges, who now constitute over 37 percent of the federal judiciary.

Notwithstanding Calabresi’s claim, the Senate in fact approved 95 percent of Bush’s nominees. In fact, currently Republican presidents (Bush II, Bush I, Reagan, Ford and Nixon) are responsible for over 58 percent of the federal judiciary – and their reach includes seats on the U.S. Supreme Court, the U.S. Appeals Courts, and the U.S. District Courts, along with a few special courts as well.

Professor Calabresi, and other right-wingers, fear that the ideological balance will shift under an Obama presidency, particularly in the influential appellate courts. Today, most of those courts are controlled by conservatives. The New York Times cited University of Pittsburgh Law School Professor Arthur Hellman, whose studies of the federal circuit courts reveal that Republican judges dominate these courts and that they have moved federal law in a more conservative direction. (As court watchers know, conservative judges are more protective of corporations and the government than of those who can be victimized by these organizations; they are less concerned about the civil rights and liberties of average Americans; and they believe that presidents should be free to do most anything they desire, regardless of the other branches’ role.)

The Court Fights To Watch In the Coming Months

As FindLaw guest columnist Carl Tobias noted, President Obama would like to end the confirmation wars, and has made good on his effort by nominating Judge David Hamilton to the U.S. Court of Appeals for the Seventh Circuit. Indeed, President Obama has shown that he would like to increase bipartisanship in countless areas, and he has certainly made an effort to do so. But Republican nabobs have rejected his efforts. All of the judges nominated so far by President Obama can be characterized by their strong credentials as jurists, rather than by their display of ideology, although they may still be opposed by Republicans.

It is unrealistic, since they lost the election, but the Republican nabobs simply do not want the conservative lock broken on several circuits. Rumor has it that efforts by the White House to fill many of the vacancies on various federal appellate courts are being thwarted by pure Republican obstructionism. While it has not erupted publicly, yet, there is a closed-door struggle in progress, and it concerns courts that are likely to swing from right to left if President Obama prevails, as he should, since he won the election.

More specifically, conservatives are most worried about the District of Columbia and Fourth Circuits. Professor Calabresi pointed out that Ronald Reagan was able to appoint an average of a judge a year to the DC Circuit, including such conservative stalwarts as Robert Bork, Antonin Scalia, Kenneth Starr, Larry Silberman, Stephen Williams, James Buckley, Douglas Ginsburg and David Sentelle. Bush II added four: John Roberts (now chief justice), Janice Rogers Brown, Thomas Griffith, and Brett Kavanaugh.

Today, the DC Circuit’s ideology is not just right, but hard right. There are eleven active judges on this circuit court, but there are two vacancies. On the right wing, there are two Reagan appointees (Sentelle and Ginsburg), one Bush I appointee (Karen Henderson), and three Bush II appointees (Brown, Griffith, and Kavanaugh). In the middle – there are no real liberals – there are three Clinton appointees (Judith Ann Wilson Rogers, David Tatel, and Merrick Garland). So even if President Obama adds two more centrists, the right will still control this court. The oldest of the active judges is Judge Rogers, the Clinton appointee, who was born in 1939. The oldest of the right-wingers is Judge Sentelle, who was born in 1943. So the conservative grip on this court will most likely hold fast during a first Obama term.

There May Be Blood: The Coming Fight Over the Fourth Circuit

The Fourth Circuit, however, is a very different story. It has been the most conservative circuit court in modern American history. This circuit has pushed the limits across the board. For instance, it has restricted abortion rights and all but declared criminal defendants guilty because they have been indicted by the government. Moreover, this court – which sits where the president of the Confederacy once had his office — has difficulty finding a state right it does not like, or a federal power that it would not like to restrict.

This Fourth Circuit includes Virginia, Maryland, West Virginia, North Carolina and South Carolina. Today, because of recent retirements, the conservatives now have only a 6-to-5 majority on this aggressively conservative fifteen-member court. Court seats are informally numbered by the order in which they were filled, and by tradition they are allocated to the different states within the circuit. President Obama has four seats to fill, and for the so-called “Maryland seat” – or seat 8 – he selected Baltimore federal trial judge Andre Davis.

Maryland has two Democratic senators, both of whom endorsed Judge Davis, so the Republican Conference has no reason to raise an objection.

The other vacant seats – seats 4, 7 and 11 – do raise problems. Seat 4, by tradition the “Virginia seat,” should be no problem because both senators – Jim Webb and Mark Warner – are Democrats. Seat 7, which traditionally has been filled by a North Carolinian, is a problem, however. While North Carolina Senator Kay Hagan is a Democrat, the state’s other senator, Richard Burr, is a Republican. Seat 11, most recently filled by a South Carolinian, is not clearly South Carolina’s, for that state has long claimed seat 12. But South Carolina’s two Republican senators are nattering nabobs of negativism who are sure to cause trouble.

You can be certain that White House Counsel Greg Craig has plotted out what he believes President Obama can do, and when he can do it, in filling the appellate judicial vacancies throughout the country. The White House had made clear that Senators can have their say about the selection of U.S. District Court judges, which has long been the tradition. But it has also long been the tradition that presidents have the prerogative of exercising their power regarding the appellate courts, and President Obama is not going to relinquish that prerogative to the Senate, not to mention to Republicans in the Senate.

There are 179 active circuit court seats. Currently, there are fifteen vacancies. President Obama has moved to fill three. None will be more difficult to fill than those on the Fourth Circuit, where there may be blood before the bench is filled. The way the Obama Administration handles the President’s judicial appointees will tell us more about the Republicans’ disdain for bipartisanship than about President Obama’s efforts to restore it. Nattering nabobs of negativism will just say no, regardless. Hopefully voters will, in turn, say no to their obstructionism. ++

“I’m asking you to believe. Not just in my ability to bring about real change in Washington … I’m asking you to believe in yours.”
~ Barack Obama

In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.

Entry Filed under: Political Waves

Some HTML allowed:
<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>

Trackback this post | Subscribe to the comments via RSS Feed

Red and White v. Blue

Leave a Comment

Calendar

Most Recent Posts

M	T	W	T	F	S	S
« Jun				Aug »
		1	2	3	4	5
6	7	8	9	10	11	12
13	14	15	16	17	18	19
20	21	22	23	24	25	26
27	28	29	30	31