"Respects The Corporate Form"

I missed this the other day.

In her maiden Supreme Court appearance last week, Justice Sonia Sotomayor made a provocative comment that probed the foundations of corporate law.

During arguments in a campaign-finance case, the court's majority conservatives seemed persuaded that corporations have broad First Amendment rights and that recent precedents upholding limits on corporate political spending should be overruled.

But Justice Sotomayor suggested the majority might have it all wrong -- and that instead the court should reconsider the 19th century rulings that first afforded corporations the same rights flesh-and-blood people have.

Judges "created corporations as persons, gave birth to corporations as persons," she said. "There could be an argument made that that was the court's error to start with...[imbuing] a creature of state law with human characteristics."

After a confirmation process that revealed little of her legal philosophy, the remark offered an early hint of the direction Justice Sotomayor might want to take the court.

"Progressives who think that corporations already have an unduly large influence on policy in the United States have to feel reassured that this was one of [her] first questions," said Douglas Kendall, president of the liberal Constitutional Accountability Center.

She may want to take whatever direction she wants now, but she's outvoted at the moment. Still, it is possible that the latest Supreme Court Justice understands that a corporate entity given human characteristics for purposes of law but out of the reach of legal culpability for so many of its actions represents a lack of fairness and twisted logic.

This whine is priceless:

"I don't want to draw too much from one comment," says Todd Gaziano, director of the Center for Legal and Judicial Studies at the conservative Heritage Foundation. But it "doesn't give me a lot of confidence that she respects the corporate form and the type of rights that it should be afforded."

Right, um, there is no corporate form. There are only corporations who have convinced enough conservative jurists over the years that they can claim personhood to protect their own wealth or strike down regulations but not when their companies break the law and those harmed seek accountability.

As I said, not the biggest or most meaningful shift now, but something to keep in mind as Sotomayor's career on the bench continues. The biggest area in which the Court has moved to the right in recent years is on the subject of corporate law, and someday we'll have to do something about that. Maybe Sotomayor can be the beginning of a new trend.

The Continued Defense Of The Indefensible

Timm Herdt was on a conference call yesterday with a top official from the Department of Corrections, and that official acknowledged that the plan due to federal judges by midnight today on prison reduction will not meet the goal:

Gov. Arnold Schwarzenegger on Friday will submit to a panel of three federal judges a plan that would reduce the inmate population at California’s overcrowded prisons by substantially less than what the court has ordered, a move that a top prison administrator acknowledged will place state officials at risk of being held in contempt.

Although the final plan will not be submitted until late Friday, administration officials have briefed other parties involved in the court proceedings on its major elements. They said exact projections of how much the prison population will be reduced have not yet been calculated, but the reduction would not lower the population to the court’s standard of 137.5 percent of the prison system’s design capacity.

“This plan will not meet the court’s requirements,” said Lee Seale, deputy chief of staff of the Department of Corrections and Rehabilitation, in a conference call Wednesday with legislative staff members. “I certainly don’t think this panel will be thrilled by this plan. I think we recognize we may be held in contempt.”

Under the plan the state will submit, they will get to around 27,000 prisoner reduction. The judges want something close to 44,000.

The question is how the three-judge panel will react. They may mandate a release of enough prisoners to get to that number, at which point the state will challenge the ruling and throw it to the US Supreme Court. This is precisely was Tough on Crime member emeritus George Runner wants.

Sen. George Runner, R-Lancaster, who has intervened in the court case in the hope of preventing a judicial mandate to lower the prison population, believes the administration is taking exactly the right approach.

“I would like to see the state plan be as easily rejected as possible,” Runner said.

If the administration submitted a plan that came close to meeting the court’s order, Runner said, that could lead to a negotiated compromise. This way, he said, the court will be forced to propose its own plan — one that would set up a showdown before the U.S. Supreme Court.

Where Runner would pitch the "I'm right because I say so" defense. And with this Supreme Court, who knows, that may work.

We don't know when the appeal would come in the process. The Governor's office seem to think that they can appeal the initial ruling as soon as they offer their alternative plan, while others believe that they'd have to wait for the three-judge panel to issue a final order with the full reductions. At some point, everyone agrees, an appeal is allowable. Kevin Yamamura has more.

I don't want to put this entirely on the Governor, though he's clearly dragging his feet. The Assembly forced the weak proposal you'll see from the Governor today by scaling back the reform plan that would have come closer to the judge's goal of reducing the population by 44,000 prisoners. But the Governor didn't actually have to follow the Assembly in submitting their plan. They could have come up with one of their own making, putting pressure on the Legislature to conform it. They chose not to stand behind their own plan and do so. So while there's plenty of blame to go around, I think the Governor needs to own this one, although he and everyone else want to take the blame off themselves.

By the end of the week, it will be apparent what all the posturing accomplished: nothing. That may suit lawmakers just fine -- they can blame the coming prison reforms on the federal courts rather than taking heat from voters for being insufficiently hard on criminals. But the episode is further evidence that if California's prison system is a national disgrace, its Legislature is a national laughingstock.

Perhaps it's not surprising that, in this environment, Schwarzenegger seems to be taking on the characteristics of a dictator. On Tuesday, he rejected the Legislature's plan to promote renewable energy and said he'd impose his own by executive fiat. He's on surer legal ground when it comes to the prisons because his actions will be backed by the federal court. But it's dismaying to watch the state's democratic procedures break down so thoroughly.

As long as he now appears to be king of California, we humbly beseech our lord and Terminator to finally do the right thing by the prisons. His proposal to the court should be modeled on the one approved by the Senate and include a commission to review the unsustainable determinate sentencing system. Meanwhile, it's time to drop the appeal to the U.S. Supreme Court of the federal court order so we can get on with the business of fixing the prisons and out of the habit of defending the indefensible.

But that's not going to happen. Seeing the Department of Corrections reduce the very rehabilitation programs by $250 million, that even the Assembly plan used as a means to let inmates out for completing them, show how the mission of corrections has been completely lost in this. What the state is fighting by appealing the judge's order is their privilege to let people die in jail needlessly in violation of the Constitution. Today, they will continue to assert that privilege.

The Corporatist Five

The Supremes heard that Citizens United case yesterday, and Dahlia Lithwick sez be very afraid.

When we first met this case, it involved a narrow question about whether a 90-minute documentary attacking Hillary Clinton could be regulated as an "electioneering communication" under McCain-Feingold. The relevant provision bars corporations and unions from using money from their general treasuries for "any broadcast, cable or satellite communications" that feature a candidate for federal election during specified times before a general election. A federal court of appeals agreed with the FEC that the movie could be regulated. Citizens United, the conservative, nonprofit advocacy group that produced the film, appealed. The issue last spring was whether a feature-length documentary movie was core political speech or a Swift Boat ad. But the court surprised everyone when it ordered the case reargued in September, this time tackling the constitutionality of McConnell and Austin.

Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas are already on record wanting to overturn these cases. Justice Samuel Alito and Chief Justice John Roberts have been inclined to wait. The question today is whether we wait no more [...]

Solicitor General Kagan stands to defend the FEC, not in a frock coat but a tasteful blue pantsuit, and when Scalia pounces on her, two sentences into her opening, she scolds him as if he were an impudent 2-L: "I will repeat what I said, Justice Scalia: For 100 years this court, faced with many opportunities to do so, left standing the legislation that is at issue in this case." Kagan is so loose and relaxed, you'd think this was her 100th argument. Which allows Roberts to dispense with the kid gloves and accuse her, respectively of "giving up" an argument she made in her opening brief and "changing positions." When she is asked, in effect, if she wants to lose this case in a big way or a little way, Kagan is eventually forced to reply, "If you are asking me, Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses if it has to lose, the answer is yes."

One of the ways the Roberts Court hopes to make all conflicting case law in the campaign finance realm disappear is to blame all prior bad case law on Kagan. When everyone is thoroughly confused about what rationale the government may advance in order to limit corporate spending, Roberts can gleefully conclude that all of Austin "is kind of up for play. …" Poof. And Austin is a problem no more.

As Kennedy bemoans the "ongoing chill" of limiting corporate speech, Scalia recites a lyric ode to the greatness of America's "single shareholder corporations. … The local hairdresser, the local auto repair shop, the local new car dealer." Kagan points again to the "100-year-old judgment of Congress that these expenditures would corrupt the federal system," forcing Scalia to retort that "Congress has a self-interest" and that "I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents." Kagan corrects him, noting that "in fact, corporate and union money go overwhelmingly to incumbents." And that this law "may be the single most self-denying thing that Congress has ever done."

Kagan goes on to distinguish humans from corporations by pointing out that "we have beliefs; we have convictions; we have likes and dislikes." When she urges that it's in the corporation's self-interest to maximize profits and that "individuals are more complicated than that," Scalia does another verse on "the new auto dealer who has just lost his dealership." It's a vision of fluffy corporate bunnies so compelling, it makes you want to give Exxon a great big hug and an African violet for the holidays [...]

Olson very effectively uses his five minutes of rebuttal time to taunt Kagan for the government's changed positions. And while it looks as though there are five votes to fundamentally alter the way American elections will work, we've been through enough renditions of the Roberts Court slapping litigants around at oral argument then loving on them in decisions to make such predictions unwise. Of course, as Waxman suggests in his closing, it does take a somewhat "self-starting" institution to be deciding a case about campaign finance laws in which no litigant has directly raised the issues and no factual record even exists.

Aside from how wonderful it is to read Dahlia Lithwick, this severely depressed me. As we already have what amounts to corporate control of government, opening up the meager restrictions on campaign finance through corporate entities may not mean as much as everybody assumes. Corporations currently funnel hundreds of millions to candidates through PACs anyway. But two things stand out upon reading this. First of all, the kind of significant campaign finance reform we need right now - in particular public financing to level the playing field - will never make it through the brick wall of the corporatist Roberts Court, which clearly has a lock on these issues for 20 years at a minimum. Second, if you read through these arguments, and the general set of opinions of the Court over the last term, you can only conclude that George W. Bush was a successful President. With a legacy that far exceeds his lack of accomplishments in domestic or foreign policy. Bush handed the Court to the Federalist Society right for a decade or more, and while the legal system can still put up a fight with respect to civil liberties, on most issues the ultimate answer will fall on the side of the corporation over the people every single time without question. And that's a frightening prospect.

I think the only path to checking this power lies at the state level and with corporate charters. But state interests can be arguably more corruptible than federal ones.

This Election Has Been Brought To You By... Tostitos

Sonia Sotomayor begins her first term as a Supreme Court justice a month early, with a hearing in the Citizens United case that could seriously change the way campaigns are funded, and not for the better. The New York Times had a good editorial on this.

The Supreme Court may be about to radically change politics by striking down the longstanding rule that says corporations cannot spend directly on federal elections. If the floodgates open, money from big business could overwhelm the electoral process, as well as the making of laws on issues like tax policy and bank regulation.

The court, which is scheduled to hear arguments on this issue on Wednesday, is rushing to decide a monumental question at breakneck speed and seems willing to throw established precedents and judicial modesty out the window.

Corporations and unions have been prohibited from spending their money on federal campaigns since 1947, and corporate contributions have been barred since 1907. States have barred corporate expenditures since the late 1800s. These laws are very much needed today. In the 2008 election cycle, Fortune 100 companies alone had combined revenues of $13.1 trillion and profits of $605 billion. That dwarfs the $1.5 billion that Federal Election Commission-registered political parties spent during the same election period, or the $1.2 billion spent by federal political action committees.

The Supreme Court has repeatedly upheld the limitations on corporate campaign expenditures. In 1990, in Austin v. Michigan Chamber of Commerce, and again in 2003, in McConnell v. Federal Election Commission, it made clear that Congress was acting within its authority and that the restrictions are consistent with the First Amendment.

In late June, the court directed the parties to address whether Austin and McConnell should be overruled. It gave the parties in Citizens United v. Federal Election Commission a month to write legal briefs on a question of extraordinary complexity and importance, and it scheduled arguments during the court’s vacation.

All of this is disturbing on many levels. Normally, the court tries not to decide cases on constitutional grounds if they can be resolved more simply. Here the court is reaching out to decide a constitutional issue that could change the direction of American democracy.

Sotomayor's presence means extremely little to this ruling; Anthony Kennedy is likely to decide it, which is how things go on the Court these days, for the most part. If corporations are given the ability to directly fund elections, the country will be even more controlled by their interests than they are currently. For context, 1% of Exxon's profits would have been enough to out-fund John McCain and Barack Obama in 2008 - combined.

If the Roberts Court goes ahead and pulls this trigger, it makes a mockery of his lame "judges are umpires" analogy from his confirmation hearings. They would be overturning an established precedent of over a century. They would be the judicial activists interfering in the electoral process.

It's very scary and progressives should prepare themselves for it by determining their next move. I'd start a raft of suits trying to take away corporate charters in the states.

...SCOTUSBlog sez today's hearing looks bad. Real bad.

Well, we had a good run as a country.

Steinberg: Assembly's Prison Effort "Not A Complete Bill"

The Assembly's passage of a prison "reform" bill is not the end of the line for the legislation, as the Senate simply won't accept it in this form.

Perhaps not surprisingly, the reaction in the Senate to the Assembly's low calorie prison bill was muted. Senate Democrats certainly wouldn't have come out and said the plan stinks. But there's no official timetable on a reconciliation vote in the upper house, either.

The official response from Senate President pro Tem Darrell Steinberg came in a written statement: "The Assembly took a good first step today but it’s not a complete package. In the coming weeks, I look forward to working with (Assembly) Speaker Karen Bass and Governor Arnold Schwarzenegger on further reforms that will strengthen our criminal justice system."

The key phrase in that statement: "In the coming weeks." This one's not going to go away anytime soon.

The main reason is that the Assembly bill costs $233 million more to the overall budget than the Senate's, and that money simply does not exist. It'll eventually come out of the hides of other programs if allowed to let stand. And the Assembly Republicans and Democrats who help up the bill can then explain why it was necessary to keep terminally ill blind people in jail at the expense of children's health care or some other social program.

Steinberg expanded on his dissent from the Assembly bill today, calling the legislature's inability to pass the reforms based on cuts they already passed in July an example of the legislature's "culture of failure". I've been saying that for weeks.

Meanwhile, I'm hearing a lot of reactionaries taking the example of Phillip Garrido, the kidnapper of Jaycee Lee Dugard, and the fact that he only served 10 1/2 years of a 50-year kidnapping sentence in the 1970s, to argue for more stringent parole and prison laws in California. This is the typical Willie Horton-ing of any sane discourse on prison policy. Garrido was convicted of a FEDERAL crime, not a state crime. And that federal parole policy was abolished by 1987. It bears no application to this debate whatsoever, particularly since, under this policy, violent criminals would not be subject to release and would face more stringent parole supervision, as resources would be allocated to those who require it. The failure of parole officers to discover Garrido's deviance demands EXACTLY the kind of parole reform in both the Assembly and Senate bill, so officers have smaller caseloads and can focus on the most dangerous cases instead of returning nonviolent offenders to prison for technical violations.

Meanwhile, the Governor, even while promoting a real reform plan, wants to get a stay from federal judges on implementing the required reduction of 44,000 to the prison population, which even the Senate bill doesn't do. He plans to file an appeal with the US Supreme Court as well, and if the three-judge panel doesn't grant the stay, he'll ask the Supremes to do so.

Sacramento politicians are still in between the "denial" and "bargaining" stage in reacting to their immoral and unconstitutional handling of the prison crisis.

Self-Immolation

John McCain goes on national TV this weekend and talks about his party's problems with Hispanic voters, how there's "much work to be done" and how Sonia Sotomayor is a great American success story. One day later, after claiming to be undecided, he comes out against Sotomayor, claiming that she's "an activist judge who legislates from the bench." Ian Milhiser does a great job showing how conservative activism on the Court is basically repealing the 20th Century.

Repealing the Twentieth Century: In three opinions that read like a tea-bagger’s wet dream, Justice Thomas would have restricted Congress’ power to enact economic regulation to a point unheard of since the Great Depression. A short list of laws that would simply cease to exist in Clarence Thomas’s America includes “the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the sick leave portions of the Family and Medical Leave, the Freedom of Access to Clinics Act, as well as minimum wage and maximum hour laws.”

Selling Justice To The Highest Bidder: Roberts, Thomas and Alito all joined dissents arguing that a West Virginia coal magnate could literally buy a judge for $3 million to overturn a verdict against his company.

Corporate Immunity From the Law: Joined by Roberts, Alito wrote a dissent arguing that drug companies have almost-total immunity from the law when one of their dangerous products caused a former professional musician to lose her arm and her ability to play music. Roberts, Thomas and Alito also joined a majority opinion giving sweeping immunity to the makers of dangerous medical devices.

Massive Resistance: All three justices joined a radical opinion which not only held that it is unconstitutional for school boards to desegregate public schools, but which audaciously cited Brown v. Board of Education for this proposition.

This Election Brought to You By Wal-Mart: Perhaps most ironic of all, all three of McCain’s justices are poised to declare McCain’s signature legislative accomplishment, campaign finance reform, unconstitutional.

McCain voted for all of the judges leading that charge. In fact, he's voted to confirm EVERY SINGLE JUDGE in his Senate career except for Sotomayor. And that's the larger point. Republicans are so in hock to their right-wing base that they must risk a generational divide with Hispanic voters by voting against a qualified Latina judge:

Most Senate Republicans say opposition to Sotomayor is a principled stand based on the belief that her public speeches reveal a personal bias in her judicial philosophy. Republicans have cited her views on Second Amendment cases, speeches she has given during her time as a federal judge and a key ruling on affirmative action -- all issues that are of sharp interest to conservative-base voters.

But some senators and Republican strategists worry that efforts to shore up support from conservative voters who dominate the GOP primaries could become a missed opportunity to extend an olive branch to Latino voters, who gave just 31 percent of their ballots to McCain last fall.

If you look at the demographic shifts of the country, both with age and ethnicity, you'll see that this is just suicide. But I'm not about to get in the way of it.

Through Judiciary

Sonia Sotomayor has been confirmed by the Senate Judiciary committee with a vote of 13-6. Only Lindsey Graham joined all the Democrats in supporting her confirmation. With four Republicans on the record as supporting her on the floor of the Senate, her confirmation is assured. She will become the first Latina on the Supreme Court.

The near-united front against a qualified Hispanic really isn't going to help the GOP in the years ahead.

Boy, If Only Life Worked Like This

Josh Marshall gets this right, it was an Alvy Singer bringing out Marshall McLuhan at the cinema moment:

Sen. Jeff Sessions (R., Ala.), seeking to discredit Judge Sonia Sotomayor’s judicial philosophy, cited her 2001 “wise Latina” speech, and contrasted the view that ethnicity and sex influence judging with that of Judge Miriam Cedarbaum, who “believes that judges must transcend their personal sympathies and prejudices.”

“So I would just say to you, I believe in Judge Cedarbaum’s formulation,” Sessions told Sotomayor.

“My friend Judge Cedarbaum is here,” Sotomayor riposted, to Sessions’ apparent surprise. “We are good friends, and I believe that we both approach judging in the same way, which is looking at the facts of each individual case and applying the law to those facts.”

Cedarbaum agreed.

“I don’t believe for a minute that there are any differences in our approach to judging, and her personal predilections have no effect on her approach to judging,” she told Washington Wire. “We’d both like to see more women on the courts,” she added.

Sessions was clearly flustered by this, causing his lobster bib to flap full into his face and almost tip over his ten-gallon hat.

Perhaps the best part of this is that Judge Cedarbarum and Jefferson Beauregard Sessions III were nominated by Ronald Reagan for the federal bench in the same year, 1986, but Sessions didn't make it as far as Cedarbaum, because of "a controversy surrounding comments he made involving the Ku Klux Klan and the NAACP."

This won't stop the silliness, but it was an amusing moment to distract us from, for example, Lindsey Graham comparing the "wise Latina" comment to sectarian violence and repression in Iraq.

Sotomayor Hearings Day II

Glenn Beck can today criticize the questioning of Senators toward Judge Sonia Sotomayor, because unlike yesterday, they're actually asking the questions. It's just joyful to watch Jefferson Beauregard "Jeff" Sessions III niggle over 15 year-old statements rather than anything resembling the legal record. You can watch it here.

...it's sad to watch Sotomayor explain precedent to Sessions. He was a judge, you know.



...I forgot to link to Judge Sotomayor's opening statement from yesterday.

Cue My Eyes Rolling Into The Back Of My Head

The Republicans will trot out Frank Ricci, the firefighter from New Haven, to testify against Sonia Sotomayor at hearings next week. And then we'll all get to hear once again about the poor guy who studied hard - hard! - to pass that promotions test, and then the MAN, in this case represented by a Latina following the established laws on the books which the Supreme Court had to change, knocked him down and took everything he had. He needed that promotion, see, and he was the best qualified, but they had to give it to a minority throw out the test because they could have been sued until the Supreme Court changed the law to essentially indemnify them.

The reality of the case doesn't matter, so this will just be a launching pad for a series of "white man's burden" colloquys among Villagers.

Man, the blowhards are going to make me sick next week. Pat Buchanan is probably testing out new slurs as we speak. "Does Sombrero Lady sound pejorative enough? How about Phi Beta Hubcappa?"

Scalia Throws A Curve

While there's no question the Supreme Court has tilted significantly to the right, in one case at the end of this session, they squeaked through a very damaging policy for the banking lobby. And believe it or not, it took Antonin Scalia to do it - I guess he's the new "swing vote":

In a rebuke of the Bush administration, the Supreme Court ruled Monday that a federal bank regulator erred in quashing efforts by New York state to combat the kind of predatory mortgage lending that triggered the nation's financial crisis.

The 5-4 ruling by the high court was unusual. Justice Antonin Scalia, arguably the most conservative jurist, wrote the majority's opinion and was joined by the court's four liberal judges.

The five justices held that contrary to what the Bush administration had argued, states can enforce their own laws on matters such as discrimination and predatory lending, even if that crosses into areas under federal regulation [...]

The ruling angered many in the financial sector, who fear it'll lead to a patchwork of state laws that'll make it harder for banks and other financial firms to take a national approach to the marketplace.

"We are worried about the effect that this ruling could have on the markets," said Rich Whiting, general counsel for the Financial Services Roundtable, a trade group representing the nation's 100 largest financial firms, in a statement. The decision "hinders the ability of financial services firms from conducting business in the United States. Even worse, it will cause confusion for consumers, especially those who move from state to state."

If there's one thing I love seeing in print, it's the words "the ruling angered many in the financial sector."

The near-term practical effect of this is that the states can resume looking into the lending practices of the banks in their regions, and potentially take them to court. Andrew Cuomo, the winner in this lawsuit, has been doing some of the best work in the country fighting the banks, and now he's empowered to continue.

These kinds of rules preventing pre-emption of the state laws when it comes to financial services are one key element of the creation of the new Consumer Financial Protection Agency, which the banks also can't stand, because it would consolidate consumer protection laws and enforce rigid standards for mortgages, credit cards, payday lending and consumer credit. Cue the whining:

"We have the view that the market, left to its own devices, isn't always going to lead to an optimal outcome for consumers," Michael Barr, the assistant treasury secretary for financial institutions, said in a news briefing.

Financial institutions said the move went beyond a step back to regulation.

"This is going in headfirst," said Scott Talbott, the senior vice president of government affairs for the Financial Services Roundtable, the lobby for the nation's biggest financial firms. "This could take us back to the 1950s."

While denying that the legislation is heavy-handed, Barr acknowledged that it would open a new era of financial regulation.

"I don't think it's a surprise that big banks and institutions that benefited from the status quo want to keep it that way. It's unacceptable to us," he said.

Now, if we actually can get this modern-day Pecora Commission off the ground, we'll at least have a multi-pronged approach to going after those who caused the financial crisis and continue to rip off their customers. I'm not all that optimistic, given the fact that the banksters own the place. But at least we have a chance.

The Radical, Activist Roberts Court

Lost in the shuffle of the caterwauling about Sonia Sotomayor and the Ricci decision, aside from the fact that it reflects conservative judicial activism and the making of completely new law, is that it's not even clear law. That must be what you get when you adjudicate by empathy toward white firefighters.

In ruling for a group of white firefighters in New Haven on Monday, the Supreme Court tried to address a damned-if-you-do, damned-if-you-don’t quandary for many cities and other employers: what they should do when an employment test yields results that overwhelmingly favor whites.

But many legal experts said that instead of setting forth clear new rules, the court’s decision left things as muddled as ever for the nation’s employers — and seemed to ensure much more litigation over the explosive issue of employment discrimination.

“We don’t see clear, bright-line guidance here,” said Lars Etzkorn, a program director with the National League of Cities. “This is going to be good for employment lawyers.”

The Court invented a new standard in applying these tests which will make it more difficult for anyone using such tests for promotions or to address workplace discrimination, from businesses to government employers. The talk the language of "strict originalism" and just being umpires calling balls and strikes, but in reality, they use the means at their disposal to make the decisions that fit a right-wing ideology. John Roberts, with help from Anthony Kennedy, has radically shifted the Court.

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 the Roberts gang has their way, by September of this year the Court will, in all likelihood, overturn a good bit of the McCain-Feingold campaign finance law, especially as it relates to corporate spending, opening up a loophole that could "allow unlimited spending from corporate treasuries for television advertisements and other communications to support or oppose candidates." And Justice Sotomayor, replacing Souter, will have little impact on that.

George W. Bush's legacy of failure and extremism will live on for many, many years.

The Ricci Case And The Sotomayor Nomination

The Supreme Court just handed down their decision in the Ricci case, reversing with a 5-4 count the lower court opinion that the city of New Haven can refuse to apply a promotions test for firefighters because no African-Americans passed it. The city feared a discrimination lawsuit over the test, but the Court basically waved that away.

What's notable is that this case was previously decided by the 2nd Circuit Court of Appeals by a three-judge panel that included Sonia Sotomayor. And so now we'll hear all about that honky-hating judge reversed again (how does this affect her "reversal rate"?) and the manly men of the Supreme Court helping out those poor white firefighters who worked so hard to pass that test.

Except that Courts of Appeals, who generally follow prior precedent in cases like this, cannot make the sweeping changes that can be made at the SCOTUS level. Far from being a slave to "empathy," Sotomayor followed the law available to her in concurring with the majority decision on her Court. In fact, as Sam Alito wrote in his concurrence today, "But 'sympathy' is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law . . . And that is what, until today's decision, has been denied them." The Second Court had no precedent on which to rely to offer that enforcement, and if Sotomayor reversed the District Court ruling in Ricci, she would have been relying on sympathy. Which is what her critics say she always relies on.

Tom Goldstein at SCOTUSBlog doesn't expect this to affect her nomination much:

Tom Goldstein: Various comments ask about the effect of Ricci on the Sotomayor hearings. The deicsion will certainly be front and center. Her position is the same as Justice Souter's, so I think it it comes across mostly as an ideological disagreement [...]

Re the intersection of Ricci and the Sotomayor nomination, the Supreme Court opinoins have almost no discussion of the court of appeals' ruling. Justice Ginsburg has a short discussion of how the ruling reflected prior Second Circuit precedent.

But of course, he is correct about the decision being front and center. Those on the right wing will certainly spin this as proof positive of Sotomayor's incompetence, or her hatred of white people, etc. This is basically the only thing that could possibly derail her at this point, and the opposition will come up with whatever distortions necessary to try to ensure that. But the charge rings pretty hollow and is based on a misunderstanding of precedent.

Voting Rights Act Gets A Reprieve

Seems to me that the Supreme Court nodded to legislative intent by not completely eviscerating Section 5 of the Voting Rights Act in a ruling handed down today by an 8-1 margin.

The case involved Section 5 of the Act, which requires voting districts that have historically engaged in discrimination to “preclear” any new voting rules changes they make with a federal court or the Department of Justice. Under today’s decision, Section 5 will remain in effect, but voting districts are allowed to “bail out” of its requirements if they can show that they have not recently engaged in race discrimination and are not likely to do so in the future.

Of course, this depends on the test that states have to pass to bail out of the requirements - if they can opt out of the provision easily, then the SCOTUS did the conservatives' bidding. Hopefully judges will impose a more strict standard.

Rosen's Redemption

Remember that lady nominated to join the Supreme Court? Sonia something-or-other? Funny, it doesn't seem like the GOP wants to talk about her much anymore. They're on to Democracy, Whisky, Sexy in Iran, and even the wingnut welfare machine of groups making money off of the Sotomayor nomination have started to lay low.

I would guess that somebody read a poll, particularly one including Hispanic voters. And they recognized that going to the mats against her would be completely counter-productive. And now everyone's zipped their lips. Hell, Kenneth Starr endorsed her yesterday.

That doesn't let off the hook those who charged her as a racist and tried to leverage the "white man's burden" theory of politics to make her toxic. It doesn't let off the hook people like Jeffrey Rosen, who lent credence to a bunch of anonymous smears designed to damage her reputation. Rosen is trying to rehabilitate himself with a more measured piece, explaining that you can find bold language and hints to her style in her dissents, not the technical decisions where she upholds settled law. He tries to roll back this charge that she isn't a big thinker by pointing out certain flourishes.

One would hope that everyone has a long memory about Rosen.

...I'm not at all sanguine about whether Sotomayor's presence on the Court can change this dynamic at all, but the current Court really sucks rocks.

Here’s a beaut of a decision from the increasingly brutal and inhumane conservative-dominated Supreme Court. Not content with gutting anti-discrimination legislation, a 5-4 majority has decided that if people are wrongfully convicted they should be punished anyway because, hey, tough on crime!

Ugh.

(Don't) Buy American

Justice Ruth Bader Ginsburg stayed the Fiat-Chrysler deal pending a forthcoming order, perhaps because she simply wanted more time to make and informed judgment, or because she wanted to bring her associates into the decision. At issue are the protestations of three Indiana pension funds, controlled by a Republican state Treasurer, who simply want a better deal on their unsecured Chrysler debt they purchased about a year ago. Apparently the phrase "caveat emptor" doesn't enter into the equation.

Meanwhile, another genius collection of wingnuts have decided that the best way to restore American capitalism is to boycott American car companies.

"In the effort to reverse this lurch beyond the farthest left fringe of previous Democratic statist urges, individual Americans have a role to play. They have to say no to GM products and services until such time as the denationalization occurs," says Hugh Hewitt. He acknowledges that this is a serious step that could hurt people currently working for GM: "But there isn't any alternative, every dollar spent with GM is a dollar spent against free enterprise. Every car or truck purchased from Government Motors is one not purchased from a private car company that competes fairly against all other car companies."

Where Hewitt makes his point as a seemingly reluctant and composed agitator, Rush Limbaugh makes no bones about what he wants in his own praise of the idea. The most amazing thing here is that Limbaugh appears to be openly admitting that the purpose of this is economic and political sabotage -- to prevent President Obama from succeeding at something.

Limbaugh reassures any GM workers who might be listening that the boycotters aren't angry at them. "They don't want to patronize Obama. They don't want to do anything to make Obama's policies work!" he explains.

Quite a needle to thread - boycotting a US company while claiming to have nothing but love for that company's workers. Wow, I don't think Democrats will lose MIchigan for the next 200 years now.

As John Cole notes, just a week or two ago these same people were whining and crying about all the dealers being pushed out of business by Overlord Obama, and not they are conspiring to actively put whatever dealers are left out of business, if successful, by refusing to buy their products. Not to mention the fact that, at this point, the fastest way to return GM to the private sector would be to, well, buy a bunch of their cars, so the government can divest.

But none of this is supposed to make economic sense. It simply reflect the kind of lashing out at whatever perceived enemy that has become the sum total of Republican output these days. They are the wounded animal in the corner, thrashing about incoherently in the hopes that all of America beyond the myopic, paranoid corner that they inhabit will come to love them again.

Obama Needs To Act On DADT

The Supreme Court declined to get into the political fight over the military's Don't Ask Don't Tell policy and hear a challenge to the law from a former Army captain. This has two implications:

1) It makes it far less likely, at least to me, that the same Court would hear a challenge to Prop. 8 which former adversaries Ted Olson and David Boies have been pushing. Typically the Court stays out of political fights, and given the similarities between these court challenges, I just wouldn't expect this Court to weigh in, even if the violations of equal protection are made pretty clear. It's a conservative Court, regardless of the Sotomayor nomination.

2) It's time for the President to step up. The courts won't bail him out.

It's time for Obama to step up. He doesn't have to wait for legislation, although legislation to overturn DADT should be passed ASAP. Obama is the commander-in-chief. He has tools at his disposal to prevent further discharges. He can issue an Executive Order according to a study by the Palm Center. If Obama wants to make a real statement during LGBT Pride Month, instead of just a proclamation, taking action to prevent further discharges under DADT would be a good one -- a very good one.

We're waiting, Mr. President.

The Buying Of America

The Supreme Court just barely did the right thing in the case of a West Virginia coal baron who bought a judge, exposing the right wing of the Court as openly hostile to the rule of law so long as corporations are involved.

When West Virginia coal overlord Don Blankenship’s company lost a $50 million verdict to one of its competitors, Blankenship set out to buy a judge. Rather than appeal his case to a fair tribunal, Blankenship spent $3 million to elect a friendly lawyer to the West Virginia Supreme Court, even running ads accusing the lawyer’s opponent of voting to free an incarcerated child rapist, and of allowing that rapist to work in a public school. Once elected by a Blankenship-funded campaign, the newly-minted justice cast the deciding vote overturning the verdict against Blankenship’s company.

Today, the Supreme Court held that this kind of justice-for-sale bribery has no place under the United States Constitution. But all four of the Court’s most conservative members voted that there is no problem when a wealthy businessman literally buys a judge. In a dissent joined by conservative justices Antonin Scalia, Clarence Thomas, and Samuel Alito, Chief Justice John Roberts argued that this decision — on a case so egregious that John Grisham turned it into a legal thriller — would encourage “groundless” charges that other “judges are biased”.

Despite the slaivishness of the Scalia-Thomas-Alito-Roberts faction, the Court ruled correctly that wealthy defendants should not interfere with the legal process through campaign contributions. But what about the wealthy who contribute to the campaigns of politicians who make decisions affecting their interests?

It seems strange, almost surreal, to say this, but the Republican Party, and arguably the whole conservative movement, is not the left's biggest enemy at the moment. On keeping a public plan in healthcare reform; streamlining student lending; and passing the Employee Free Choice Act (EFCA), cap and trade, financial regulation and a host of other structural economic reforms progressives hope to enact, the GOP is more akin to the garbage men than the alderman.

"Most Republicans aren't waking up every day thinking, How do we kill banking regulation?" says Goehl. "Most people who listen to Rush Limbaugh aren't waking up thinking about how do we kill banking regulation. But the people with the deep pockets who have power in DC are thinking that [...]

While the Republican Party shrinks, corporate interests are deftly molting their old K Street Project skin and crawling en masse inside the big tent being pitched by the Democratic Party. These same corporate interests have always had a purchase on Democrats, of course. But for much of the last decade, business interests had the luxury of spending most of their resources aiding their allies in the GOP.

No more. Writing on The Atlantic's website, Scott Bland and Ronald Brownstein identify the emergence of what they dub "The Democratic Industrial Complex." Energy and healthcare companies, automakers and banks all understand that the Democrats control much of their fate, so they've cast their lot with the majority party in a big way: John Kerry got less than 20 percent of the donations from electric utilities; Barack Obama got almost 60 percent. So far in this cycle, Democrats have captured two-thirds of the donations from the healthcare industry.

If big business's old legislative strategy was centered on relentless opposition to progressive initiatives--an approach that continues in areas like EFCA--the new strategy is to subvert legislation through co-optation, as in healthcare and cap and trade. By converting themselves, ostensibly, from opponents to "partners," corporate lobbies are trying to have it both ways: to block reforms while changing overt power struggles over the future of the economy into seemingly cooperative negotiations. At these negotiations, to use the president's favorite phrase, "everyone has a seat at the table"--except, the lobbyists get by far the best seats. (Alinsky didn't have much patience for this approach. "This liberal cliché about reconciliation of opposing forces is a load of crap," he once said. "When one side gets enough power, then the other side gets reconciled to it.")

Paul Krugman kind of gets at this today, in discussing the imminent fall of Gordon Brown in Britain. He generally acknowledges that thrall to financial innovation is a bipartisan problem, and the punishment from the electorate just depends on a kind of musical chairs, where whoever happens to be in the leadership bears the brunt of the pain.

Now, I don't expect this Supreme Court to strike down all campaign contributions. But it certainly does argue for full public financing, to remove this coziness between the oligarchs and the government they routinely buy.

Indiana State Teasurer Harold WATB

Three Indiana pension funds are holding up the sale of Chrysler to Fiat, despite multiple losses in bankruptcy courts. We'll know sometime tomorrow afternoon if they were successful, as the Supreme Court decides whether or not to stay the sale. The Indiana Treasurer uses words like "fiduciary duty" to argue in favor of more compensation for their secured debt:

The appeal heard Friday had been filed by the Indiana funds, which objected to the sale because they sought more compensation for the Chrysler secured debt they hold. A federal bankruptcy court in Manhattan previously approved the sale, which would transfer most of Chrysler’s assets to a newer, healthier company run by a group led by Fiat.

Lawyers for Chrysler and the government argued that the sale to Fiat needed to be completed as quickly as possible to preserve its viability and to save thousands of jobs. Fiat can walk away if no agreement is struck by June 15.
Late Sunday, Judge Arthur J. Gonzalez of United State Bankruptcy Court for the Southern District in New York approved the sale to Fiat, overruling more than 300 objections. On Monday night, he agreed to shorten a customary 10-day stay of the sale to four days, though the Court of Appeals stayed the transaction pending its hearing.

When Chrysler emerges from bankruptcy, a union retiree trust will own 55 percent, Fiat a 20 percent share that could eventually grow to 35 percent and the United States and Canadian governments minority stakes.

Would a collapse of the national auto industry be positive for the state of Indiana? Its pensioners? Furthermore, the Chrysler debt represents less than one percent of the total fund assets. James Kwak explains further:

The pension funds in question bought the Chrysler debt in question last July for 43 cents on the dollar. (They stand to get 29 cents on the dollar in the restructuring.) I guess the difference between that and speculation is that “speculation” is something that bad people do; when pension funds by distressed debt, it’s called “investment.” I have no problem with pension funds buying modest amounts of risky investments, but they are taking the same risks that hedge funds are taking, and if they lose money on bad investments, that’s the fault of the pension fund managers.

Now, the popular defense of the Indiana pension funds is that they have a fiduciary duty to their beneficiaries to maximize the value of their assets. (Hedge funds should have the same duty to their limited partners, unless I’m missing something, but let’s set that aside.) There is a deal on the table worth 29 cents on the dollar. Apparently they think Chrysler can do better by finding a a higher bidder (not likely at this point), or they can get more in liquidation. But that is far from a certainty, and the value of Chrysler is deteriorating as time passes; and if they manage to drag this out past June 15, Fiat can back out of the deal. So it’s not at all clear that their actions have a positive expected value for their beneficiaries.

So what’s going on here? Either (Indiana State Treasurer Richard) Mourdock really thinks that the chances of getting more than 29 cents outweigh the very real risk of getting less (and of blowing up Chrysler in the process). Or Mourdock (and Mitch Daniels, the Republican governor of Indiana?) believes that the order of priority of creditors in bankruptcy is more important than maximizing value for their retirees. Or Mourdock is trying to shift the blame for losing pension fund money on distressed Chrysler debt. Or he wants to score political points and embarrass President Obama.

I think it's the latter. And let's not kid ourselves about this being an example of the "little guy" going up against the big bad gobmint.

Kabuki Inc.

There's this interesting dynamic where Senate Republicans are demurring from attacks on Sonia Sotomayor in public while urging their activists to keep them up behind the scenes. But the Raw Story has an even more interesting article up about who may really be behind the most extreme attacks:

Corporate interests posing as a grassroots conservative group are behind attacks on President Obama’s Supreme Court nominee, a RAW STORY investigation has found.

The Committee for Justice (CFJ), an astroturf group established by big business in July 2002 to create an appearance of popular support for President Bush’s judicial nominees, is now leading the effort to oppose the nomination of Judge Sonia Sotomayor to the US Supreme Court.

CFJ’s Executive Director Curt Levey has been sending out press releases and making media appearances to promote the theme that Sotomayor is racist and biased in her rulings, drawing his talking points largely from a speech in which she suggested that when it came to race and sex discrimination cases, it was possible that “a wise Latina woman with the richness of her experiences … would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

I knew Curt Levey was one of the instant bobbleheads from the conservative movement suddenly all over TV talking about Sotomayor. I didn't know his organization was a Big Business front group.

I'm wondering what they have to fear from Sotomayor, however. On this issue, her record doesn't appear to be all that different from the current construction of the Court, which is clearly tilted toward big business. Maybe it's just a reflexive partisan pose. But if there's something in Sotomayor's past that would actually make business tremble, I'd love to know what it is.