Note: Posting will be a little light this week--every two hours, instead of 90 minutes.CNN reports on Specter's last little contribution of Senatorial craziness--"Specter issues parting blow to Roberts, Alito". In it he blasts Roberts and Alito for their judicial activism, which is fair enough. But he acts surprised by it, which is downright nuts. Worse still, Specter bears a good deal of responsibility for perpetuating both rightwing judicial activism and the pretence that this somehow comes as some sort of surprise. Indeed, Specter has been one of the lont-time enablers of this process, though, of course, you'd never know that from CNN. Here's some of what they do report:
Sen. Arlen Specter, the outgoing Pennsylvania Republican-turned-Democrat, directed a parting blow Tuesday to members of the Supreme Court's conservative bloc.
In his final speech on the Senate floor, Specter, the former GOP chairman of the Senate Judiciary Committee, chastised Chief Justice John Roberts and Justice Samuel Alito for "eroding the constitutional mandate of separation of powers."
"The Supreme Court has been eating Congress' lunch by invalidating legislation with judicial activism after nominees commit under oath in confirmation proceedings to respect congressional fact finding and precedents," said Specter, who voted in favor of both Roberts and Alito when the Bush appointees came before his panel.
Specter specifically took issue with the court's controversial 5-4 decision early this year, in which it relaxed federally-imposed campaign finance regulations for corporations and unions.
"Ignoring a massive congressional record and reversing recent decisions, Chief Justice Roberts and Justice Alito repudiated their confirmation testimony given under oath and provided the key votes to permit corporations and unions to secretly pay for political advertising - thus effectively undermining the basic Democratic principle of the power of one person, one vote," said Specter. Chief Justice Roberts promised to just call balls and strikes and then he moved the bases." [Video at original.]
Roberts is perhaps the easiest case to explain: His claim that he would be an "impartial umpire" who saw his job as "calling balls and strikes" was patently absurd from the very beginning, and anyone who took him seriously ought to have accused him of perjury right then and there. Why? Because it's the job of District court judges to "call balls and strikes"--to decide cases that come before them based on settled law. They are, above all, finders of fact.
On the other hand, Appellate judges are generally not finders of fact. Their job is to almost always to defer to trial (District Court) judges on findings of fact, and instead to examine whether the law was properly applied--and when necessary to interpret or even re-interpret existing law as required by the case before them--but with attention to potential impacts on other cases as well. Neither of these types of judicial activity is strictly speaking a matter of "calling balls and strike", though the first comes closer to it at a somewhat abstract level. But the second is nothing like it at all. It is more like setting judicial policy (or the strike zone, if you must) just as Sonia Sotomayor said, and that is what the Supreme Court--the highest Appellate Court of them all--is almost exclusively concerned with. When senators kept babbling at Sotomayor about "balls and strikes", we were, in part, seeing Specter's failed leadership on display.
To explain a bit further, questions on appeal often take the form of asking how two or more different lines of precedential argument can be harmonized with one another. It's not like "calling balls and strikes", it's like comparing apples and oranges, because different lines of precedent often have roots intertwining with very different bodies of law. Still, apples and oranges are both fruit, and thus, not as impossible to compare as the saying suggests. But they don't compare automatically in any sort of straightforward fashion, and a judges judicial philosophy is, in large measure, a reflection on how they tend to go about dealing with the challenging task of comparing judicial apples and oranges.
Roberts, in effect, was saying, "There are no oranges, just apples. And comparing them is easy: it's just like calling balls and strikes."
And that, quite simply, is a lie. Arlen Specter has been listening to such lies for a very, very long time, and giving them his stamp of approval as a particularly influential senator on judicial matters. Now, all of a sudden, he pretends to just have noticed them, and to be very, very upset.
Shame on him. He was a prime mover in putting Clarence Thomas on the Supreme Court, going so far as to accuse Anita Hill of perjury, and thus participating quite actively in deterring other corroborating witnesses from coming forward. Since Thomas's former girlfriend, Lillian McEwen, has now come forward with corroborating testimony about his obsession with porn and boorish behavior in general, it's now quite clear that Specter helped suppress unpleasant truths about Thomas from coming out. It's not just that he could not be bothered to actually get to the bottom of things--he was actively obstructionist. And this wasn't the only thing that Thomas lied under oath about. He also said he had never discussed Roe v. Wade (a subsequent conservative biographer latter found evidence that he had discussed Roe before, and thus had perjured himself in his Senate hearings.) He also enthusiastically played along with Thomas's "Pinpoint Strategy"--an approach to the confirmation hearing that deliberately avoiding subjecting himself to the normal sort of inquiry into him as a judge, and instead relied on selling his story of being a Horatio Alger character, who in effect deserved a Supreme Court seat, because of his lowly beginnings. It was a palpably absurd argument, but the Senate centrists by and large bought it, and Specter was a leading light in making this happen.
He has, in short, no standing whatsoever to complain about what a circus the Senate confirmation process has become, and what strange menagerie of rullings the Supreme Court has passed as a result. He, after all, has been one of the ringmasters for may long years now. He's always been part of the problem, and never part of the solution. This parting hissy fit changes nothing. Indeed, it only deepens the pompous hypocrisy that has always been Specter's trademark.
Friday was a big day for Supreme Court confirmation perjury stories. First off, Amanda Terkle at HuffPo reported that Congressman Pete DeFazio was "investigating articles of impeachment against Justice Roberts for perjuring during his Senate hearings, where he said he wouldn't be a judicial activist, and he wouldn't overturn precedents."
In his 2005 confirmation hearings, Roberts famously said, "Judges and justices are servants of the law, not the other way around. Judges are like umpires. 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 ball game to see the umpire."
According to DeFazio, Roberts hasn't stood by his own doctrine. He pointed to former Justice John Paul Stevens's dissent in the case, in which he said the Citizens United case was not properly brought before the Supreme Court. "This procedure is unusual and inadvisable for a court," Stevens said of the process. "Our colleagues' suggestion that 'we are asked to reconsider Austin and, in effect, McConnell," ante, at 1, would be more accurate if rephrased to state that 'we have asked ourselves' to reconsider those cases."
"Justice Stevens makes the point that Roberts decided a case that wasn't even before the Court, and invited the issue before the Court," said DeFazio. "It was the most extraordinary condemnation I've ever read of a perverted majority on the Supreme Court, at least in recent years."
Of course, Roberts' umpire analogy was false on its face at the time, though arguably not in a perjurious sense. It was a lie that only the dullest of Senators--Sessions and Bunning, perhaps--could have possibly believed. Trial court judges may spend almost all their time "calling balls and strikes"--applying existing precedent to the case at hand. But a primary purpose of all appellate courts is to define where the strike zone is--resolving contradictions between conflicting lines of precedent and/or statutory laws. One cannot credibly graduate from law school--if not high school civics--without learning this.
But now that we've tasted the dire consequences of Roberts' lie, DeFazio thinks we should take it seriously. Good Lord! He was only lying about the law! And the Constitution! It's not like it was his sex life!
Secondly, Michael A. Fletcher at the WaPo reported that a former girlfriend of Clarence Thomas'-- Lillian McEwen--has supported Anita Hill's testimony about his pattern of harassment--testimony that Thomas now quite apparently falsely denied:
To McEwen, Hill's allegations that Thomas had pressed her for dates and made lurid sexual references rang familiar.
"He was always actively watching the women he worked with to see if they could be potential partners," McEwen said matter-of-factly. "It was a hobby of his."
....
McEwen's memoir describes her own "dysfunctional" family in the District and, ultimately, a long legal career. She charts how she developed an "inner self" to escape the chaos of her childhood. Her story also includes explicit details of her relationship with Thomas, which she said included a freewheeling sex life.
Given that history, she said Hill's long-ago description of Thomas's behavior resonated with her.
"He was obsessed with porn," she said of Thomas, who is now 63. "He would talk about what he had seen in magazines and films, if there was something worth noting."
The WaPo article also recalls corroborating testimony available at the time that was suppressed by Joe Biden (the number one reason I have always considered him unfit for high office--number two is his disgraceful treatment of Lani Guinier):
However bizarre they may seem, McEwen's recollections resemble accounts shared by other women that swirled around the Thomas confirmation.
Angela Wright, who in 1984 worked as public affairs director at the Equal Employment Opportunity Commission -- which polices sexual harassment claims -- during Thomas's long tenure as chairman, shared similar accounts with Senate investigators.
Once, when walking into an EEOC seminar with Thomas, he asked her, "What size are your breasts?" according to the transcript of her Senate interview.
Her story was corroborated by a former EEOC speechwriter, who told investigators that Wright had become increasingly uneasy around Thomas because of his comments about her appearance.
But Wright also had problems that made committee Democrats nervous. She had been fired by Thomas, and previously by a member of Congress. She also had quit a third job in government, accusing her boss of incompetence and racism.
Concerned about Wright's credibility, Biden lifted a subpoena for her to testify at the hearing. Instead, transcripts of the interviews with Wright and her corroborator were simply entered into the record, drawing only modest press attention.
Another woman, Sukari Hardnett, who worked as a special assistant to Thomas in 1985 and 1986, wrote in a letter to the Judiciary Committee that "If you were young, black, female and reasonably attractive, you knew full well you were being inspected and auditioned as a female" by Thomas.
For his part, a parade of women who worked with Thomas defended him before the Judiciary Committee, calling it impossible that he would engage in the type of inappropriate behavior described by his accusers.
Thomas also perjured himself during his confirmation hearings when he claimed to have never discussed or even thought about Roe v. Wade. This perjury was widely suspected at the time, as it simply didn't seem credible that Thomas was only law student in America who didn't discuss Roe v. Wade when it was decided. But in 2001, a conservative author, Andrew Peyton Thomas (no relation), published Clarence Thomas: A Biography, which included specific evidence that Thomas had discussed Roe, and thus had perjured himself. To my knowledge, I was the only reviewer to take note of this fact.
In all likelihood, nothing will come of any of this. Republicans routinely lie with impunity. It's what they do. Everyone in Versailles expects it. Why should putting them under oath make any difference? What's more, anyone with half a brain knew that Thomas and Roberts were lying at the time. It was simply accepted as how things are done, and that acceptance is part and parcel of Versailles' wider culture of corruption.
So kudos to Peter DeFazio for not going native after 20+ years in Versailles. Kudos to Peter DeFazio for still being outraged at lies, and still standing up for the truth.
Lots in this article worth highlighting, but at least it now mainstreams what the DFHs have known for at least 3 years since Roberts and Alito took the bench.
In its first five years, the Roberts court issued conservative decisions 58 percent of the time. And in the term ending a year ago, the rate rose to 65 percent, the highest number in any year since at least 1953.
The courts led by Chief Justices Warren E. Burger, from 1969 to 1986, and William H. Rehnquist, from 1986 to 2005, issued conservative decisions at an almost indistinguishable rate - 55 percent of the time.
They're using databases compiled by political scientists who assign decisions to a conservative-liberal rating system according to criteria like whether the court sided with the prosecutor (conservative outcome) or an individual against a corporation (liberal outcome). I think the acceleration is significant too, as Roberts and Alito grow into the jobs and hit their full stride, confident in their impunity.
This really says it all:
Four of the six most conservative justices of the 44 who have sat on the court since 1937 are serving now: Chief Justice Roberts and Justices Alito, Antonin Scalia and, most conservative of all, Clarence Thomas. (The other two were Chief Justices Burger and Rehnquist.) Justice Anthony M. Kennedy, the swing justice on the current court, is in the top 10.
When the "swing" vote at the "center" of the court is actually in the top 10 of consevative justices since they started measuring these things, I think I feel safe saying "Yes Virginia, the Supreme Court is packed with conservative extremists."
The nomination of Sonia Sotomayor to replace Justice Souter on the Supreme Court has sparked national conversations-some good, some bad, and some very, very ugly-about the qualities we want and need in the judges who sit on the highest court in our land. This week's Supreme Court decision in Caperton v. A.T. Massey Coal Co. should be part of that conversation. The decision shows how the current Supreme Court Justices grappled with our Constitution and legal precedent in the context of a case about judicial bias. The majority opinion, authored by Justice Kennedy and joined by the four "liberal" Justices-Stevens, Souter, Ginsburg, and Breyer-wrestles with the facts of the case, the mandates of the Constitution, and relevant Supreme Court precedent to decide the case. Interestingly, the dissenting opinions authored by Chief Justice Roberts and Justice Scalia reveal a disregard for precedent and the text of the Constitution, despite these Justices' proclaimed fidelity to such judicial limitations. As we prepare for Judge Sotomayor's July confirmation hearing in the Senate and think back to the confirmation hearings of some of the Justices already on the bench, it is useful to look at the Caperton case as a reminder that clever metaphors and broad labels are no substitute for a demonstrated commitment to applying the Constitution to the facts at hand to protect fundamental rights.
Chief Justice Roberts's dissent from Tuesday's ruling in Caperton v. A.T. Massey Coal Co. (discussed here), joined by Justices Alito, Scalia, and Thomas, trots out the legal aphorism that "hard cases make bad law" in criticizing Justice Kennedy's majority opinion holding that a West Virginia judge was disqualified from hearing a high-stakes case involving a major campaign contributor.
What Roberts misses, however, is that it is not just the extreme facts of Caperton that are driving the majority's decision. Instead, the Court reached its decision after grappling with relevant precedent and considering the Constitution's textual guarantee of due process of law, which neither Chief Justice Roberts-despite his professed fidelity to precedent-nor Justice Scalia-despite his professed fidelity to constitutional text-face up to in their dissents.
In considering Chief Justice Roberts's dissent, it is useful to recall his now-famous statement from his confirmation hearings:
Judges are like umpires.... Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.
Given this statement, it is surprising that Chief Justice Roberts never once attempts to distinguish a key precedent on which Justice Kennedy's Caperton opinion relies: Ward v. Monroeville.
The chatter about a compromise bill on FISA to replace the expired PAA got louder last week:
The new Republican proposal_ which Sen. Kit Bond of Missouri said is backed by the White House and intelligence agencies, would allow the FISA court to decide. It would require the attorney general to certify that the companies acted lawfully and at the request of the president.
The court would be allowed to read classified warrantless wiretapping documents, and the plaintiffs could file their complaints with the court. The court could dismiss the lawsuits if it finds that supported by "a preponderance of the evidence."
There's little reason to trust any "compromise" offered by Republicans. The only thing they typically compromise on is the size of the fig-leaf they offer to Democrats to hide their shame in supporting whatever is being offered. That said, it is worth looking in particular why this offer is utterly unacceptable. It comes down to the Foreign Intelligence Surveillance Court being, in essence, a movement conservative Star Chamber.
I haven't been paying close attention to McCain's overall situation and strategy, but whatever is forcing him to make speeches like this, I'm thankful for:
McCain vows to name more 'Alitos' and 'Robertses' By Matt Stearns | McClatchy Newspapers
WASHINGTON - John McCain sought to burnish his conservative credentials Tuesday with a broadside against "the common and systematic abuse of our federal courts by the people we entrust with judicial power" and a promise of "better judges" in the mold of Supreme Court Justices John G. Roberts and Samuel Alito.
In a speech on his judicial philosophy delivered in a chapel at Wake Forest University in North Carolina, McCain, the presumptive Republican presidential nominee, decried federal judges who "assured of lifetime tenures...show little regard for the authority of the president, the Congress and the states. They display even less interest in the will of the people."
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