The Corporate Court

The Washington Post has an article today about the implications of a McCain victory on the federal judiciary. I don't think they needed to write it, they could have just used the same amount of column inches and printed this graphic:



(h/t CAF for the graphic.)

The federal bench has been overwhelmingly appointed by Republicans because they've held the White House for 20 of the last 28 years. And while there are exceptions, Republican Presidents have used the Federalist Society and conservative legal organizations as a judge factory. Everyone knows this and it's very clear. However, I don't think one truly appreciates the shift to the right of the judiciary on one of the signature issues they end up deciding in bulk - corporate issues. The lead editorial in today's LA Times is about the "return to consensus" on the Roberts Court, despite the high-profile 5-4 decisions. That's true, but it's a function of what cases the Court is selecting to decide. It has nothing to do with, as the LAT suggests, some sort of judicial comity or bipartisanship. It's because forty percent of the cases this term involved business interests, and the Republican - actually, all - appointees on the Court are of one mind on them.

Though the current Supreme Court has a well-earned reputation for divisiveness, it has been surprisingly united in cases affecting business interests. Of the 30 business cases last term, 22 were decided unanimously, or with only one or two dissenting votes. Conrad said she was especially pleased that several of the most important decisions were written by liberal justices, speaking for liberal and conservative colleagues alike. In opinions last term, Ruth Bader Ginsburg, Stephen Breyer and David Souter each went out of his or her way to question the use of lawsuits to challenge corporate wrongdoing — a strategy championed by progressive groups like Public Citizen but routinely denounced by conservatives as “regulation by litigation.” Conrad reeled off some of her favorite moments: “Justice Ginsburg talked about how ‘private-securities fraud actions, if not adequately contained, can be employed abusively.’ Justice Breyer had a wonderful quote about how Congress was trying to ‘weed out unmeritorious securities lawsuits.’ Justice Souter talked about how the threat of litigation ‘will push cost-conscious defendants to settle.’ ” [...]

Business cases at the Supreme Court typically receive less attention than cases concerning issues like affirmative action, abortion or the death penalty. The disputes tend to be harder to follow: the legal arguments are more technical, the underlying stories less emotional. But these cases — which include shareholder suits, antitrust challenges to corporate mergers, patent disputes and efforts to reduce punitive-damage awards and prevent product-liability suits — are no less important. They involve billions of dollars, have huge consequences for the economy and can have a greater effect on people’s daily lives than the often symbolic battles of the culture wars. In the current Supreme Court term, the justices have already blocked a liability suit against Medtronic, the manufacturer of a heart catheter, and rejected a type of shareholder suit that includes a claim against Enron. In the coming months, the court will decide whether to reduce the largest punitive-damage award in American history, which resulted from the Exxon Valdez oil spill in 1989.

And they did reduce that punitive-damage award, as we know. David Souter, one of the court's "liberals," wrote the opinion.

The hot-button issues of gun rights and Roe get all the ink, but ex-corporate lawyer John Roberts has really revolutionized the nation's highest Court, and on issues with business interests at the forefront he have shown himself and his Court extremely willing to ignore precedent and to act in an activist fashion. This is the real agenda of any Republican nominee - you have to look past the so-called "litmus tests" to get to the meat.

As for Sen. Obama's opinion on these issues, he's (surprise, surprise) kept it pretty close to the vest. But we can look to why he opposed both Roberts and Alito:

Obama, like Clinton, voted against both Bush nominees to the Supreme Court, citing their tendencies to favor government and corporate interests—"bullies" in Obama's words—over the rights of individuals.

He wrote, "The bottom line is this: I will be voting against John Roberts's nomination. I do so with considerable reticence. I hope that I am wrong. I hope … that Judge Roberts will show himself to not only be an outstanding legal thinker but also someone who upholds the Court's historic role as a check on the majoritarian impulses of the executive branch and the legislative branch. I hope that he will recognize who the weak are and who the strong are in our society."

Casting his vote against Alito, Obama noted similar concerns about the nominee's voting record, "The Judicial Branch of our government is a place where any American citizen can stand equal before the eyes of the law. Yet, in examining Judge Alito's many decisions, I have seen extraordinarily consistent support for the powerful against the powerless, for the employer against the employee, for the President against the Congress and the Judiciary, and for an overreaching federal government against individual rights and liberties."

In his votes against Roberts and Alito, Obama shared much of the same reasoning with Clinton, noting that the nominees' steadfast support for government and corporate powers—and disinterest in the rights of individuals—concerned him. One point he emphasizes more than Clinton, however, is Roberts's and Alito's tendency to favor the "unitary executive" theory, which supports fewer limitations on presidential authority.

We know that McCain would appoint a corporate whore. I think past precedent suggests otherwise for Obama - and certainly 4-8 more years of Federalist Society knockoffs throughout the judiciary is unacceptable. But the Supreme Court's ideology on corporate issues is pretty rigidly set for perhaps the next generation, and barring a massive change in personnel I don't see that changing. Building progressive power outside of government that will hit businesses in the wallet and hold them accountable to their customers - BuyBlue.org and the stock sell-off of Sinclair Broadcasting in 2004 being some recent examples - may be more effective than relying on John Roberts and his cadre.

Somehow You Knew They'd Get Around To This

Mitt Romney went into his oppo research bag of tricks and found this obvious nugget:

Republican Mitt Romney took aim at John McCain Monday over reports he once considered signing on to John Kerry’s presidential ticket, the latest effort by the Massachusetts Republican to paint his chief rival as an inconsistent and unpredictable conservative.

“I do recall a story that he was thinking about being John Kerry’s running mate — he gave that some thought,” Romney said at an early-morning rally in West Palm Beach. “Had someone asked me that question, there would not have been a nanosecond of thought about it — It would’ve been an immediate laugh. And of course, if someone asked him if he would consider me as a running mate, he would have also laughed immediately.”

“So, we are different,” Romney continued. “I’m conservative.”

I know that everything St. McCain has done immediately goes down the media memory hole, but in 2001 he was openly talking about leaving the Republican Party, and in 2004 McCain actually approached Kerry about joining the ticket as the Vice Presidential nominee.

Romney is obviously pulling out all the stops, because in recent days McCain has regained momentum in Florida, due in part to endorsements from Senator Mel Martinez and the popular governor Charlie Crist. But it is a closed Republican primary, and this re-hash of McCain's past flirtations with the Democratic Party can be combined with this column alleging that McCain would never nominate an open partisan like Samuel Alito to the Supreme Court to confirm the suspicions many Republicans have about the Arizona Senator.

Fund wrote that “Mr. McCain has told conservatives he would be happy to appoint the likes of Chief Justice John Roberts to the Supreme Court. But he indicated he might draw the line on a Samuel Alito, because 'he wore his conservatism on his sleeve.'"

Commenters at conservative blogs such as the The Corner on National Review Online have been churning all morning:

McCain has got to explain himself to conservatives now, on Alito for sure, and on much else as well. While I’m unquestionably concerned about what a McCain nomination might mean for the Republican coalition, I’m not one of those who feels it would necessarily be disastrous. On the contrary, I can see scenarios where McCain and conservatives could patch things up rather well. But this Alito thing is serious. It bugs me, and I need to know more, quickly. McCain needs to forthrightly address conservatives concerns on this and other issues, and he needs to do it before Super Tuesday.

It seems to me that this all is coming a bit late. The winner in Florida is going to absolutely have a leg up going into Super Tuesday, and the time for Romney to stop McCain's momentum was a few days earlier.

Meanwhile, On The Court

Two major Supreme Court cases have been heard this week, and on each of them, it does not appear that the side of justice and the Constitution will be victorious. In the Kentucky case opposing the use of the lethal injection method in capital punishment, the conservative block was skeptical:

"This is an execution, not surgery," Justice Antonin Scalia told the attorney who was representing two Kentucky inmates who say the use of the three-drug compound poses "an unnecessary risk of pain" to the dying man.

"Where does that come from, that you must find the method of execution that causes the least pain?" Scalia continued. "We have approved electrocution. We have approved death by firing squad. I expect both of those have more possibilities of painful death than the protocol here."

Yes, where the hell does that come from, this idea that punishment should not be cruel or unusual? What first-year law student pulled that out of their ass?

So, it appears that we'll continue with a process that has been invalidated for the euthanizing of dogs.

In the other big case, the ruling on Indiana's voter ID law, the Court again appeared unswayed by arguments about equal protection and the deliberate efforts to suppress voter turnout.

Only two Justices — Ruth Bader Ginsburg and John Paul Stevens — even hinted at the real-world fact that the photo ID law in Indiana is at the heart of a bitter, ongoing contest reaching well beyond Indiana. It is a dispute between Republicans worried over election fraud supposedly generated by Democrats to pad their votes, and Democrats worried over voter suppression supposedly promoted by Republicans to cut down their opposition. The abiding question at the end: can a decision be written that does not itself sound like a political, rather than a judicial, tract? Can the Court, in short, avoid at least the appearance of another Bush v. Gore? [...]

It was apparent from the outset that the Court’s more conservative members were most interested in (a) finding that no one had a right to bring the constitutional challenge, at least at this stage, (b) putting off a challenge until the law has actually been enforced or at least until just before election day, or (c) salvaging as much as possible of the Indiana photo ID requirement on the theory that voter fraud is a problem that states have a legitimate right to try to solve. There was some hand-wringing, particularly by Justice Samuel A. Alito, Jr., over how difficult it is for a judge to “draw the line” on when a voting requirement would or would not pass a constitutional test [...]

In a notable way, therefore, it appeared that — once more — Justice Anthony M. Kennedy may hold the vote that controls the outcome. He displayed some skepticism about the challenge to Indiana’s law, somewhat impatiently suggesting at one point that the challengers would oppose any kind of voter ID requirement other than a simple signature match at the polling place. Kennedy seemed ultimately to be looking for ways to assure voters who demonstrably would be significantly burdened by the law that they could challenge it, perhaps even before election day came around.

Count me as not sanguine that Alito's handwringing will hold up. And Kennedy appears lost.

As has been said many times, this is a solution without a problem. The Indiana secretary of state, when pressed, could not come up with one documented instance of voter fraud in his state. Never has so much attention been paid to a crime that has not been proven to be committed. The agenda is as transparent as tissue paper.

These two cases reveal just how partisan, and really cowardly, the Court has become, as the arguments showed an unwillingness to engage on the Constitutional questions, while looking to uphold the rulings on narrower, more technical grounds. This has been the Roberts Court agenda since he rose to Chief Justice.

The revolution that many commentators predicted when President Bush appointed two ultra-right-wing Supreme Court justices is proceeding with breathtaking impatience, and it is a revolution Jacobin in its disdain for tradition and precedent. Bush's choices, Chief Justice John Roberts and Justice Samuel Alito, have joined the two previously most right-wing justices, Antonin Scalia and Clarence Thomas, in an unbreakable phalanx bent on remaking constitutional law by overruling, most often by stealth, the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed.

That article by Ronald Dworkin is important. Go read it. (I'll be here.)

And let's be very clear about what each and every Republican candidate has said, with total unanimity, on the subject of judges.

Rudy Giuliani

"I will nominate strict constructionist judges with respect for the rule of law and a proven fidelity to the Constitution -- judges in the mold of Justices Scalia, Thomas and Alito, and Chief Justice Roberts."

Mitt Romney

"I think the justices that President Bush has appointed are exactly spot-on. I think Justice Roberts and Justice Alito are exactly the kind of justices America needs."

Fred Thompson

"I like Roberts and Alito and Scalia and Thomas. One of the best things that I got to do as a private citizen was to help get Justice Roberts through the confirmation process... We're in a heck of a lot better shape because of Roberts and Alito, and one more gain would put us in even better shape."

Mike Huckabee

"My own personal hero on the court is Scalia, not least because I duck-hunted with him."

John McCain

"One of our greatest problems in America today is justices that legislate from the bench, activist judges. I'm proud that we have Justice Alito and Roberts on the United States Supreme Court. ... [When asked whether he admires any Supreme Court justice in particular] Of course, Antonin Scalia... I admire how articulate he is, but I also from everything I've seen admire Roberts as well."

The two parties have more than a dime's worth of difference on this, and the Supremes had better be right at the top of the issues that we talk about in the fall.

We Apparently Have Dianne Feinstein's Attention

Shane Goldmacher got someone at Dianne Lieberman Feinstein's office on the record about the anger in the Democratic grassroots over her continued efforts to undermine Democratic values in the Senate. The leadership of the CA Democratic Party chimed in, as well. See if you can spot the difference between the two statements.

Roger Salazar at the CDP:

“This party supports our Democratic senator and will continue to do so,” said party communications director Roger Salazar. “Period.”

Here's Scott Gerber for the Senator:

Scott Gerber, a Feinstein aide, defended the senator, saying she “has been an independent voice for California.”

So one side says she's a Democratic senator and the CDP supports Democrats (no matter the policy or the principle, they just support Democrats, so shut up, grassroots!), while the other says she's an "independent voice for California."

Somebody better talk to somebody.

Then there's this howler:

“What people may not know is she was a strong leader in the fight against (now Supreme Court Justice Samuel) Alito and (Chief Justice John) Roberts,” Gerber said, noting she opposed “more than a dozen” circuit court nominees from the Bush administration.

Hmm, I didn't know that! I guess that's why Alito and Roberts were never confirmed to the Supreme Court, in the face of all that "leadership." It must have been withering attacks like this that did the trick:

"Many of us are struggling with . . . what kind of a justice would you be, John Roberts," implored Sen. Dianne Feinstein (D-Calif.)

She voted against Roberts in committee, but made no loud effort to filibuster. And on Alito, she had this expression of leadership when it counted:

A Democrat who plans to vote against Samuel Alito sided on Sunday with a Republican colleague on the Senate Judiciary Committee in cautioning against a filibuster of the Supreme Court nominee.

“I do not see a likelihood of a filibuster,” said Sen. Dianne Feinstein, D-Calif. “This might be a man I disagree with, but it doesn’t mean he shouldn’t be on the court.”

She said she will not vote to confirm the appeals court judge, based on his conservative record. But she acknowledged that nothing emerged during last week’s hearings to justify any organized action by Democrats to stall the nomination.

Fight, Dianne, Fight!

She actually ended up voting against cloture, but only after it was apparent that the filibuster wouldn't hold and after she undermined it with prior comments.

Unfortunately, Mr. Gerber, the Great Gazoogle is my friend, and your claim that she was a "strong leader" against Roberts and Alito rings hollow.

If anything positive comes out of this, it's that DiFi recognizes that a whole lot of Californians are upset with her, and she can no longer run and hide from them. It may not change a lot, but it's a first step.

Sorry I Was Away

What happened on the Internets while I was gone?

By the way, this is pathetic:

New York Sen. Charles E. Schumer, a powerful member of the Democratic leadership, said Friday the Senate should not confirm another U.S. Supreme Court nominee under President Bush “except in extraordinary circumstances.”

“We should reverse the presumption of confirmation,” Schumer told the American Constitution Society convention in Washington. “The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.”

Schumer’s assertion comes as Democrats and liberal advocacy groups are increasingly complaining that the Supreme Court with Bush’s nominees – Chief Justice John Roberts and Associate Justice Samuel A. Alito – has moved quicker than expected to overturn legal precedents.

Senators were too quick to accept the nominees’ word that they would respect legal precedents, and “too easily impressed with the charm of Roberts and the erudition of Alito,” Schumer said.

“There is no doubt that we were hoodwinked,” said Schumer, who sits on the Senate Judiciary Committee and heads the Democratic Senatorial Campaign Committee.

Hoodwinked? HOODWINKED? The President said he wanted to nominate Supreme Court Justices in the mold of Scalia and Thomas. He went on to nominate Justices PRECISELY in the mold of Scalia and Thomas. There wasn't a lot of razzle-dazzle there. You hoodwinked yourselves by doing a piss-poor job of advise and consent.

Schumer actually voted against both Roberts and Alito, but he did little or nothing to marshal support for a filibuster. Which, as we now see, Republicans have NO PROBLEM doing. So you have nobody to blame but yourself.

It's nice to say this now, but it doesn't mean a whole lot:

“Alito shouldn’t have been confirmed,” Schumer said. “I should have done a better job. My colleagues said we didn’t have the votes, but I think we should have twisted more arms and done more.” [...]

Schumer said there were four lessons to be learned from Alito and Roberts: Confirmation hearings are meaningless, a nominee’s record should be weighed more heavily than rhetoric, “ideology matters” and “take the president at his word.”

“When a president says he wants to nominate justices in the mold of [Antonin] Scalia and [Clarence] Thomas,” Schumer said, “believe him.”

Yeah, no crap. You JUST figured this out?

The Real Legacy of Bush-Cheney

We'll be marveling for 20 years about what a cruel, anti-citizen, pro-corporate Supreme Court we have.

EPA’s responsibility to protect endangered species weakened:

In a 5-4 decision, the Court ruled that the federal government can avoid its responsibility to protect species under the Endangered Species Act by handing off authority to the states. The EPA routinely delegates administration of the Clean Water Act to states. The Court’s decision means the EPA does not have to ensure that states abide by the federal Endangered Species Act when they issue Clean Water Act permits. [National Association of Home Builders v. Defenders of Wildlife and a companion case]

Ordinary taxpayers cannot challenge Faith-Based Initiative:

In a 5-4 decision, the Court “barred ordinary taxpayers from challenging a White House initiative helping religious charities get a share of federal money.” A taypayers’ group called the Freedom From Religion Foundation sued eight Bush administration officials, including the head of the White House Office of Faith-Based and Community Initiatives, objecting to “government conferences in which administration officials encourage religious charities to apply for federal grants.” [Hein v. Freedom From Religion Foundation]

Campaign finance restrictions weakened for corporate- and union-funded ads:

In a 5-4 decision, the Court loosened restrictions on corporate- and union-funded television ads that air close to elections, “weakening a key provision of a landmark campaign finance law.” The court “upheld an appeals court ruling that an anti-abortion group should have been allowed to air ads during the final two months before the 2004 elections.” [Federal Election Commission v. Wisconsin Right-to-Life]

You'll notice that every one of them was a 5-4 decision. In an O'Connor court, the decisions may have been reversed.

This is why elections matter, particularly Presidential elections, but also for the Senators that vote to confirm Supreme Court Justices. Anthony Kennedy is seemingly growing more conservative as his influence on the Court grows, and we're going to see routine 5-4 decisions on the side of business and conservative causes, regardless of the facts of the case. John Roberts and Samuel Alito are reliable rubber stamps for the conservative agenda.

It's very depressing.

UPDATE: I missed that they voted against the Bong Hits for Jesus kid. So much for free speech in America. Again, it was a 5-4 decision. And all four of these opinions were written by Roberts and Alito.

Team Thompson

So Tim Griffin, the Karl Rove protege and caging expert, is officially resigning as the US Attorney for Arkansas, announcing this on the same day that Fred Thompson announces his exploratory committee. Thompson has been rumored to be in touch with Griffin over hiring him as a campaign manager. We already know that his campaign-manager-in-waiting is a former tobacco industry executive. Now from Rick Perlstein comes news about another Thompson staffer:

I've been reading up on the latest Republican presidential candidate, and in an article in the new Weekly Standard when the following line caught my eye:

The conference call began around 2:00 pm. Ken Rietz, a top executive with Burson Marsteller and a close adviser to Thompson, welcomed the participants."

Kenneth Rietz. I knew I'd heard of that name before.

I used my MacIntosh's function that lets you search for any string of characters that's on your hard drive. I found what I was looking for in my "Watergate" file. The following is a quote from my favorite book about the Nixon presidency, Jonathan Schell's The Time of Illusion (page 221):

In Washington, a taxi-driver was hired by the Nixon reelection committee to join the Muskie campaign. He was taken on as a volunteer, and was eventually assigned the task of carrying the Senator's's mail between his Senate office and his campaign headquarters. On the way he would give the Senator's's campaign documents, including internal memoranda and drafts of speeches and position papers, to a Republican operative whose code name was Fat Jack and who held a post in the Office of Economic Oportunity. Fat Jack would photograph the papers in a downtown office rented for that purpose, and would pass the film along; for the first few months...to Kenneth Rietz, director of the youth division...and then, after Rietz withdrew...to E. Howard Hunt on a Washington Street corner.

A current Republican presidential contender has a Watergate spy as a "close advisor": surely interesting, and perhaps even relevant to the character of the candidate.

I'm telling you, the moment that anybody finds anything out about Thompson, the 20-year lobbyist, whose last two high-profile political jobs were running Scooter Libby's Legal Defense Fund and shepherding John Roberts and Sam Alito through their Supreme Court confirmations, they're going to see that he's the same old Republican, with ties to every low-down dirty trickster in the business.