This week I learned that the folks over at Rasmussen have conducted yet another embarrassingly-misleading poll, "gauging" the American populace's opinion of the Supreme Court. The poll, conducted late last month, asked 1,000 likely voters a familiar question:
Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?
The problem with this question, of course, is its false assumption that a judicial decision based on a proper interpretation of the Constitution would, by definition, not be fair or just. I can only assume that in order to come up with a question like this, the folks at Rasmussen must not have read much constitutional text, or history, which in fact make clear that the Constitution - including its 200 years of amendments - is itself largely based on a sense of fairness and justice.
Not surprisingly, a whopping 70% of respondents chose "what's written in the Constitution," while a mere 25% selected "a sense of fairness and justice." (We're declaring the 6% who went with "Not sure" the winners here.) Also unsurprisingly, our friends at NRO's Bench Memosseized these figures as evidence of widespread rejection of President Obama's call for judges with empathy.
Setting aside, however, the problem with how this poll was constructed, I have a different take on what these figures could mean. Interestingly, the difference between responses on this issue is becoming more pronounced. Back January, when Rasmussen conducted the same poll, only 64% of respondents chose "what's written in the Constitution" (27% chose "a sense of fairness and justice"), and when it conducted the poll in June 2008, only 54% of respondents chose "what's written in the Constitution." (37% selected "a judge's concept of fairness and justice.") I think this steady increase in the percentage of respondents selecting "what's written in the Constitution" is due not to a stealthy success of conservative talking points about "activist" or "empathetic" liberal judges, but to a growing recognition by voters everywhere that the text and history of the Constitution uphold the progressive legal outcomes they prefer. Perhaps a high-profile Supreme Court confirmation this past summer - featuring a judge who pledged allegiance to the "immutable" words of the Constitution - helped contribute to the latest results. Or perhaps Americans across the political spectrum are discovering that the text and the history of the Constitution embody a sense of fairness and justice, illustrated, for example, in the document's guarantees of due process, equal protection, and fundamental individual liberties for "We the People."
If Rasmussen had elected to word its poll more carefully - and had not given respondents choices that presume, erroneously, that following the Constitution and following a sense of fairness and justice are somehow mutually exclusive - then it might have found stronger evidence of this trend. Instead, we are left once again with a lousy poll; one with little substantive meaning and that is based on a profound lack of understanding of the text, history, and principles of our Constitution.
Originally posted at Text & History. Hannah McCrea is proud to work for the Constitutional Accountability Center (CAC), a law firm and think tank dedicated to demonstrating how the text and history of the Constitution uphold progressive outcomes.
Charged with dual roles as advocates and ministers of justice, prosecutors are the most powerful actors in our criminal justice system. They have sole responsibility for decisions regarding what charges to bring against an individual, what sentence to seek, what plea bargain to offer, and what evidence to present to a jury during trial. Clearly, these decisions have a lasting impact on all those under the purview of the justice system. However, despite the great power of prosecutors, few are held accountable for violations of their ethical obligations.
Today, the Supreme Court will hear oral arguments in Pottawattamie County v. McGhee, which is a wrongful conviction case about prosecutorial immunity. Specifically, the Court will decide whether the prosecutors in a 1978 murder trial may be sued as individuals for the wrongful conviction of Curtis McGhee Jr. and Terry Harrington. McGhee and Harrington allege that the prosecutors violated their rights by coercing false testimony during the investigation and using that testimony at trial. The attorneys representing the prosecutors in question argue that while prosecutors are immune from lawsuits when acting within the scope of their job, state bar and disciplinary agencies provide sufficient punitive mechanisms to punish prosecutors for misconduct. It has been our experience that state bars and disciplinary agencies fall woefully short of holding prosecutors accountable for their misconduct.
This month, the U.S. Supreme Court is threatening to strike down key provisions of the 2002 "McCain-Feingold" bipartisan campaign finance reform act, overruling two of its prior rulings in the process and uprooting a century-old principle - existent in American law since Teddy Roosevelt's Administration - that corporations should be barred from making unlimited expenditures in elections.
Wait, what? What did I just say? Corporations might soon be able to make unlimited expenditures in elections? Can they do that?
The answer is yes, if the Supreme Court says they can. And if you didn't know that already, you should certainly keep reading.
The case I'm referring to, of course, is Citizens United v. Federal Election Commission, which is being argued before the Court, for the second time, tomorrow morning. The reason the Court is hearing this case again is because in June, the Court ordered that the scope of the case be dramatically expanded following its first oral argument in March. At that time, Citizens United, a conservative non-profit corporation, was focused upon the FEC's decision to treat "Hillary: The Movie" - its feature-length film criticizing Hillary Clinton during last year's Democratic primaries - as a standard attack ad for the purposes of campaign spending regulations. Citizens United, which is subject to campaign regulation because it accepts money from businesses, argued that the film did not constitute an "electioneering communication" as defined by federal law. Not surprisingly, the FEC disagreed.
However, once the Court decided to hear the case, Citizens United - represented by Bush Solicitor General Ted Olsen -- began to push for massive changes in settled campaign finance law, arguing that corporations' "speech" (i.e., their expenditures) in elections was entitled to just as much protection under the First Amendment as speech by individuals. This argument has been raised many times by conservatives and business leaders throughout the years, and rejected repeatedly by the Court. (While current federal law allows business corporations to form political action committees, or PACs, with money collected from individuals associated with the corporation, it clearly prohibits them from using money from their general treasuries -- where all their profits sit - to influence elections.) Nevertheless, to the horror of the members of Congress and progressive groups who worked so hard to pass campaign finance reform, the conservative justices on the Roberts Court seemed amenable to the argument that restrictions on corporate spending on elections were unconstitutional. Rather than deciding the case last June, the Court asked the parties to supply supplemental briefing on the constitutional question, scheduling a special September session to re-hear argument.
What the Court threatens to do now is remove these restrictions, and say that corporations can funnel unlimited amounts of money from their corporate treasuries into elections. Citizens United argues that because individuals can spend unlimited amounts of money to influence elections, corporations should be able to do so as well, in essence asserting that there is no difference between corporations and individuals when it comes to spending money on elections.
That this is an absurd assertion should be obvious to everyone, but especially to progressives, who have been fighting corporate "voices" for generations. If the Court accepts this argument, it will be undoing over 100 years of progress in campaign finance rules, starting with the Tillman Act of 1907, which established that corporations are distinct from individuals and must not be able to spend their profits in elections. This distinction builds on the text of our Constitution, which never mentions corporations, and on two hundred years of Supreme Court rulings that treat corporations and individuals differently. Abolishing this distinction will release the floodgates of corporate money - in quantities that are orders of magnitude greater than what is spent now - into federal and state elections. It will, in one fell swoop, undo decades of hard work by progressives who have fought to adopt strong campaign finance and disclosure laws. And perhaps most urgently, such a ruling stands to undo the benefits of the months of exhausting work done by millions of progressives to elect Barack Obama and progressive leaders in Congress, undermining or placing out of reach nearly every outcome on the progressive agenda, from health care reform, to clean energy, Net neutrality, consumer protection, civil rights, and more.
Think for a second about how you would have reacted to a proposal sponsored by the Bush Administration in 2003 to repeal a century's worth of campaign finance laws that limit the ability of corporations to influence elections. Constructively engaging and pushing back against the conservative activism of the Roberts Court is trickier, but no less important. At the very least, we should all be expressing our outrage. The justices on the Supreme Court do keep an ear toward public opinion, and it is too often because progressives at large are silent about the issues and cases that come before them that they're able to quietly, though tragically, chip away at our work. We owe it to ourselves not to let that happen here. We need to make noise about this case, and we need to do it now.
Hannah McCrea is proud to work for the Constitutional Accountability Center (CAC), a law firm and think tank dedicated to demonstrating how the text and history of the Constitution uphold progressive outcomes.
In May, Mark Walsh, founding CEO of Air America and a Democratic media strategist, accepted Grow the Hope's invitation to speak to the community about messaging and media. Many of the people in attendance had rallied behind Obama on his presidential campaign. Their work is not over, however. As David Hart, the founder of Grow the Hope (GTH), would say:
"Electing a smart and moral man as our President was an important step, but it's not enough... The challenges we face are far too massive for any one person to solve alone. The task is not his alone, it is ours together."
Sonia Sotomayor's confirmation hearings began today at 10 a.m. However, Senator Arlen Specter, who sits on the Judiciary committee holding the hearings, didn't show up until 2 pm:
Arlen Specter regularly groused about sparse attendance at Senate Judiciary Committee meetings when he was the chairman.
But he was in no hurry to show up today, now that he's been relegated to the second most junior slot among Democrats. (He outranks only Minnesota's newly minted Senator, Al Franken.)
Specter finally appeared when the committee resumed for a post-lunch session at 2 p.m.
Now, I have showed up late to quite a few events in my life. However, I can never remember showing up late, and then immediately complaining about other people not working hard enough. However, this is exactly what Specter did immediately upon arrival:
"I intend to ask ... about cases that the Supreme Court decided not to decide," said Specter. "The court, I would suggest, has time for more cases. Chief Justice Roberts noted, in his confirmation hearing, that the decision of more cases would be more helpful. In 1886, there were 1,396 cases on the docket, 451 decided. A century later, only 161 signed opinions. In 2007, only 67 signed opinions."
So, Specter shows up four hours late, and then tells the committee that the Supreme Court isn't working hard enough. And this happened just a couple days after Specter attacked his likely Democratic primary opponent, Joe Sestak, for not taking enough of an interest in the political process. Nice.
The next time you show up late for work, try immediately launching into a complaint about how people in the department next to yours don't work hard enough. I doubt that would go over very well with your co-workers, but it is at least worth testing out to see if Specter is onto something here.
Recently, Senator Jeff Sessions (R-AL), ranking Republican on the Senate Judiciary Committee, launched into one of his favorite talking points: He complained once again about federal judges who have the audacity to realize that wisdom does not reside solely within the borders of the United States, and who therefore consider it acceptable to look for wisdom in the rulings by judges of courts of other countries.
As we explained last month following a previous routine by Sen. Sessions on this subject, his assertion that the "idea that foreign law has a place in the interpretation of American law creates numerous dangers" is wildly off-the-mark.
Let's set aside for a moment the fact that no judge we've heard of has ever asserted that the rulings of foreign courts should dictate how American judges interpret the U.S. Constitution, or be considered precedent that must be followed. Let's also set aside the fact that a number of the Supreme Court's current Justices, most notably Reagan-appointee Anthony Kennedy, and also, at times, Justice Antonin Scalia, have cited foreign courts and international treaties in their opinions and dissents, or in the course of oral arguments.
Even if this were not the case, there is nothing wrong, or even particularly controversial, with a judge referring to foreign law or foreign judges for guidance on how to decide a particular legal controversy. (After all, plenty of legal concepts have originated or been nurtured outside our borders; everything from women's suffrage and the anti-slavery movement, to....well, the English common law system upon which our legal system is based.) As Justice Ruth Bader Ginsburg has said, "Why shouldn't we look to the wisdom of the judge from abroad with at least as much ease as we would review a law review article written by a professor?"
Justice Ginsburg was merely echoing James Madison, who wrote about the importance of "attention to the judgment of other nations," in Federalist 63 in 1788, explaining that "in doubtful cases, particularly where the national councils may be warped by strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed."
Yet yesterday, Sen. Sessions specifically targeted Supreme Court nominee Sonia Sotomayor for her past statements regarding foreign law that are hard to distinguish from either Ginsburg's or Madison's. According to the New York Times, Sen. Sessions had a particular concern about a recent speech by Judge Sotomayor in which she stated:
To suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that is based on a fundamental misunderstanding. What you would be asking American judges to do is close their minds to good ideas.
Perhaps judges with closed minds are what Sen. Sessions is really after. (Just as he is apparently after judges who don't follow the law.) But, happily, that is not a criterion for Justices on the Supreme Court.
Originally posted at Text & History. Judith E. Schaeffer is Vice President of the Constitutional Accountability Center (CAC), a law firm and think tank dedicated to demonstrating how the text and history of the Constitution uphold progressive outcomes.
A truly functional democracy depends on the ability of everyone to have a voice—a chance to contribute their views and perspectives, and to have them heard and respected.
That everyone be able to participate in public debate, in decisions that affect us, and to be part of the social and cultural life of that nation is essential to our ability to achieve our full potential, as individuals and together.
Recent news has shown advancement in this notion of voice. The first is the administration's announcement that the 2010 census would, for the first time count same-sex marriages. Second, the Supreme Court let stand a key provision of the Voting Rights Act.
On June 19th the administration made their announcement about the 2010 census. This is a significant departure from censuses past. The 2000 census does have data on gay couples who checked "unmarried partner." (Gay couples who ticked the "married" box were reclassified as unmarried partners.) In 1990, gay couples who checked the "married" box were simply reclassified as heterosexual. A demographer at the Brookings Institution, William Frey, believes this census will "open people's eyes" to the number of gay men and women living in the United States, thereby making issues such as their right to marry harder to avoid.
(FYI: After the last census, the Urban Institute took a look and analyzed the results to provide some more information on gay and lesbian demographics. Read more here.)
While this is an important step forward, as the Urban Institute points out, as is the census will continue to undercount single gay men and lesbians because—estimates in 2001 put—only about a quarter of gay men and two-fifths of lesbians in couples at any given time.
An equal right to vote is at the core of our democracy. With an African American in the White House, it’s increasingly popular to believe that racial bias no longer exists, especially when it comes to voting. There’s no doubt that our nation has made significant progress in securing equal opportunity, but there’s still a long way to go. That’s why it was so important that the Supreme Court left in tact a key provision of the Voting Rights Act earlier this week. In reauthorizing this part of the Act, Congress reviewed a mountain of evidence showing that, unfortunately, voting discrimination is still a significant problem—especially in those places that were previously segregated by law.
A large, bi-partisan majority of Congress reauthorized the Act after hearing evidence about the hundreds of recent cases in which states, cities and counties denied or suppressed African American, Latino, or Native American votes. They heard of elections rescheduled or cancelled to prevent black workers and students from voting, of election districts intentionally drawn to dilute Latino voting strength, of polling places selected in remote locations to discourage minority voting, of false prosecutions, intimidation, and more. The evidence was from the last decade, not from the 1950s, ‘60s, or ‘70s.
To be sure, these tactics are are more subtle than the fire hoses and violence of past decades. But without continued enforcement of the Voting Rights Act, they would have denied the equal right to vote and, thereby, struck at the heart of our democracy. Things have changed—in large part because of the Voting Rights Act—but the Supreme Court correctly determined that this is not the time to walk away from the civil rights guarantees that protect us all.
Yesterday morning, several Republican Senators took to the Senate floor to make speeches outlining their "concerns" about Supreme Court nominee Sonia Sotomayor. By and large, the speeches were entirely predictable, and if I'd been playing a drinking game keyed to mention of Judge Sotomayor's "wise Latina woman" remark, I'd have been three sheets to the wind by lunchtime.
But who could have predicted that Senator Jeff Sessions, Ranking Member of the Judiciary Committee, would be critical of Judge Sotomayor for following the words of a statute? That's right. Sen. Sessions spent much of his time criticizing a dissent by Judge Sotomayor in the case of Hayden v. Pataki, written about here, in which Judge Sotomayor followed the plain words of the federal statute in question, apparently to Sen. Sessions' dismay. Who knew?
The plaintiffs in the case had challenged New York's felon disenfranchisement law as a violation of the Voting Rights Act of 1965 (VRA), which prohibits voting laws and practices that result in racial discrimination in voting. The plaintiffs claimed that the state law, which prohibits convicted felons from voting until pardoned or cleared from parole, violated Section 2 of the VRA, which provides that:
[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied in any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the of the United States to vote on account of race and color.
The district court dismissed the complaint at the pleading stage, before the plaintiffs had an opportunity to prove their case. The question on appeal was whether the VRA applied at all. When the full Second Circuit heard the case it ruled, 8-5, that it did not. Judge Sotomayor was among the dissenters. In addition to joining a dissent by Judge Parker, Judge Sotomayor also wrote one of her own, a brief and simple opinion to make the point that the many pages of the majority and concurring opinions had given the impression that the case was complex, when it was not. According to Judge Sotomayor:
It is plain to anyone reading the Voting Rights Act that it applies to all "voting qualification[s]." And it is equally plain that [the New York statute] disqualifies a group of people from voting. These two propositions should constitute the entirety of our analysis. Section 2 of the Act by its unambiguous terms subjects felony disenfranchisement and all other voting qualifications to its coverage.
When Sen. Sessions criticized Judge Sotomayor today over her dissent in this case, he began with a mischaracterization of her dissent, claiming that Judge Sotomayor had held that felon disenfranchisement laws violated the Voting Rights Act. She had held no such thing. All her dissent would have done is allowed the plaintiffs to have their day in court in an effort to prove that the New York statute discriminatorily denied African-American and Latinos their right to vote. The merits of the case were not at issue on appeal at all, only whether the VRA was even applicable to felon disenfranchisement laws.
Perhaps more astonishing, however, was that Sen. Sessions claimed that Judge Sotomayor would no doubt defend her dissent by saying that she'd been a "strict constructionist" by literally applying the Voting Rights Act to the case. The Senator said that he preferred the term "fair constructionist," and that he did not think it a "fair construction" of the Voting Rights Act to use it to overturn felon disenfranchisement laws.
So let's get this straight. Sen. Sessions is objecting because Judge Sotomayor followed the plain language of a statute? Apparently he would have preferred the majority opinion, which used arguments rooted in legislative history to undercut the result compelled by the clear statutory text in order to get a preferable result - an approach that Justice Antonin Scalia, for one, has criticized.
In her dissent in Hayden v. Pataki, Judge Sotomayor stated that "[t]he duty of a judge is to follow the law, not to question its plain terms." Does Sen. Sessions really want judges who don't feel compelled to follow the law?
Originally posted at Text & History. Judith E. Schaeffer is Vice President of the Constitutional Accountability Center (CAC), a law firm and think tank dedicated to demonstrating how the text and history of the Constitution uphold progressive outcomes.
Yesterday, the Supreme Court issued its much-anticipated opinion in NAMUDNO v. Holder, holding that the plaintiff, a small Texas utility district, should have a chance to prove that it is entitled to an exemption - in technical parlance, a "bail out" - from the preclearance requirement of the Voting Rights Act of 1965. The Court's opinion, written by Chief Justice Roberts and signed by every Justice except Justice Thomas, declined to decide the plaintiff's constitutional challenge to Congress' 2006 decision to renew the preclearance provision, one of the most important and successful provisions of the Voting Rights Act.
This is an incredible turnaround - during oral argument in April, the Court's conservatives all seemed poised to declare that the preclearance provision exceeded Congress' power under the Fourteenth and Fifteenth Amendments. Faced with the prospect of invalidating one of our nation's most important and iconic civil rights laws - renewed in 2006 with overwhelming support across the political spectrum - the Supreme Court backed one step away from a very steep cliff. Only Justice Thomas argued that the preclearance provision is unconstitutional. We should all breathe a sigh of relief that the Voting Rights Act is still intact.
Although the Court did not reach the constitutional questions in yesterday's opinion, the Chief Justice's opinion invites future litigants to renew the constitutional attack on the Voting Rights Act, describing the Act's preclearance requirement as in tension with principles of constitutional federalism and claiming that it may have run its course, citing "considerable evidence that it fails to account for current political realities." This is hardly an opinion faithful to the text and history of the Civil War Amendments, which were enacted to change the Constitution's balance of powers between the federal government and the States, and give Congress the lead role in securing the new constitutional guarantees of liberty, equality, and the right to vote. Thus, although the Voting Rights Act dodged a bullet today, the threat to the Act, and to fundamental constitutional principles, is still at code red.
Emblematic of the Court's appreciation of the text and history of the Civil War Amendments is its discussion of Reconstruction and its aftermath. In the Court's eyes, Congress failed to take up its constitutional duty to enforce properly the Fifteenth Amendment's guarantee of the right to vote. In Chief Justice Roberts' words, "[t]he first century of congressional enforcement of the Amendment can only be regarded as a failure. Early enforcement acts were inconsistently applied and repealed with the rise of Jim Crow." The truth is that much of the blame goes to the Supreme Court. It was the Court that sapped Congress' enforcement powers under the Civil War Amendments, ensuring that the new constitutional guarantees would not actually be enjoyed by the newly freed slaves and other Americans. For example, in the 1876 case of United States v. Reese, the Court adopted a tortured construction of the Enforcement Act of 1870 - Congress' first exercise of its Fifteenth Amendment enforcement powers - to justify holding the Act unconstitutional. Reese dismissed a prosecution of Kentucky election inspectors who refused to count the votes of African American voters - a blatant violation of the Fifteenth Amendment - because the Court thought the Act could also apply to vote denials that had nothing to do with racial discrimination. As Judge Michael McConnell has written of Reese, "the reasoning was transparently faulty and the practical effect was to undo a major underpinning of Reconstruction."
Other decisions of the era made it impossible to protect African Americans and their allies against the campaign of terror waged by the Klu Klux Klan, who turned to violence and intimidation to prevent African Americans and their allies from voting. As we show in our recent report, The Shield of National Protection, in the 1870s and 1880s, the Supreme Court held that Congress had no power to protect the constitutional rights of the freedmen against "private" action. These rulings effectively gave the green light to groups like the Klu Klux Klan to terrorize African Americans to make sure they did not vote.
As The Shield demonstrates, the framers of the Civil War Amendments gave Congress the lead role in securing the new constitutional guarantees of liberty, equality, and the right to vote because it did not trust the Supreme Court - so soon after its abominable ruling in the Dred Scott case - to properly enforce the new constitutional Amendments. This was a prophetic judgment - since then, the Supreme Court has, all too often, stood in the way of Congress' enforcement of the Constitution's guarantees.
Should the Voting Rights Act return to the Supreme Court, let's hope the Supreme Court learns these lessons, and respects Congress' express constitutional power to secure the right to vote. Unfortunately, the Court's failure in NAMUDNO to even acknowledge its own role in undermining Congress' efforts to enforce the right to vote in the Reconstruction era provides little basis for optimism.
Originally posted at Text & History. David H. Gans is Director of the Human Rights, Civil Rights, and Citizenship Program at the Constitutional Accountability Center (CAC), a law firm and think tank dedicated to demonstrating how the text and history of the Constitution uphold progressive outcomes.
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.
1. Sotomayor Cruising Toward Confirmation Another poll came out today showing Sonia Sotomayoor cruising toward confirmation. The AP / GfK poll shows 50% of the country favoring Sotomayor's nomination, with only 22% opposed. This is the third poll asking a direct question on Sotomayor's nomination, all of which have put her in safe territory.
A comparative look at the first three confirmation polls on the four Supreme Court nominees since 2005 show just how safe Sotomayor really is:
First Three Polls, Last Four Supreme Court Nominees Roberts: +27.3% (Confirm 51.0%--23.7%, AP, ABC and Newsweek)
Sotomayor +23.4% (Confirm 49.7%--26.3% Not Confirm, Rasmussen, AP and Gallup)
Alito: +11.4% (Confirm: 37.7%--26.3% Not Confirm, AP, Newsweek and Fox)
Miers: +8.0% (Confirm 36.7%--28.7% Not Confirm, Pew, Fox, AP)
Public opinion on confirming Sotomayor is far closer to Roberts territory than to Alito or Miers. Roberts sailed through the nomination process, and it is a solid bet that Sotoamyor will sail through as well.
Update: Rasmussen has just released a widely outlying poll on Sotomayor today, showing the public favoring he confirmation by only 41%--36%. Even if that was included in the average, replacing the orginal Rasmussen polls, Sotomayor is still at 47.7% confirm--28.3% Not Confirm, far ahead of Alito, and still closer to Roberts.
However, consider that Rasmussen also has consistently claimed that Republicans are winning the generic congressional ballot, a finding that has consistently been repudiiated by every other pollster on the subject. They also find a lot more Republicans in the country than any other polling firm. In 2009, they are consistently skewing Republican.
2. "Strict Constructionists" Not in the Majority In looking through old supreme court polling to compile this post, I came along this interesting nugget:
ABC News/Washington Post Poll. July 21, 2005. N=500 adults nationwide. MoE ± 4.5. Fieldwork by TNS.
"Do you think the U.S. Supreme Court should base its rulings on its understanding of what the U.S. Constitution meant as it was originally written, or should the court base its rulings on its understanding of what the U.S. Constitution means in current times?"
Cuurent Meaning: 50%
Originally Written: 46%.
Unsurer: 4%
In the same vein, a Quinnpiac poll from July 2008 showed a 52%-40% majority in favor of "current realities" over "original intentions," while a Fox poll from August 2005 showed a 47%--36% plurality for "framer's intent" over "meaning in today's world." The questions were all phrased differently, but no majority ever appeared for what conservatives call the "strict constructionist" position. In fact, in two out of three polls, the "living document" argument was in the majority.
This is relevant because I can't remember a single politician ever arguing that we need judges who will interpret the Constitution in a way that is relevant to our own times, even though it appears to be the more common viewpoint among the American public. About all we ever hear from Republicans and Democrats alike is how we need strict interpretations of what the founders intended. I guess it isn't surprising that a piece of conservative rhetoric dominates our political discourse even though it is a minority position. This is hardly the only example of that happening.
Do you think that Republicans would run ads calling Sotomayor "not that bright," a "recipient of preferential treatment most of her life," and "racist" on Spanish language radio?
I seriously doubt it. But we should.
This is a perfect branding moment when the uglier side of the conservative movement and Republican activist base is coming out in the open. As such, we need to take the smears Republicans are currently throwing at Sotomayor and run them as paid advertisements on Spanish language radio and television from now through Sotomayor's confirmation. This is an opportunity to push Republican numbers among Latinos below 30% for a generation, and we need to jump on it.
Here is a rough draft of an ad campaign (it would need to be translated into Spanish, obviously):
Judge Sonia Sotomayor grew up in a housing project. Her mother was a nurse, and her father, a tool and dye worker, died when Sonia was only nine. And yet Republicans think she has been given preferential treatment all her life.
She graduated second in her class at Princeton University, and is a member of the American Philosophical Society. And yet, Republicans have said Sonia Sotomayor isn't very smart.
She has served as a judge longer than anyone currently on the Supreme Court did before they were nominated, and yet Republicans argue Sotomayor was only chosen because her family was Puerto Rican.
Why do Republicans really oppose Sonia Sotomayor? Call Republican Senate leader Mitch McConnell and tell him to support her historic nomination.
No one is better at hurting Republican chances among minority groups than Republicans themselves. We need to take their own anti-Sotomayor message directly to the Latino community for them, and let the community decide what it thinks about the Republican Party as a result. I also want Mitch McConnell to have to answer for the attacks on Sotomayor from conservative media. It is a nice opportunity to forge a wedge between the Republican Senate and conservative media.
I'd like to see Republicans complain about these ads, too. If they really thought their attacking Sotomayor in such racially charged ways was a good idea, they should have nothing to complain about.
Republicans really need to pay a heavy, long-term political price for these attacks. Let's make sure that they do.
This week's blog rounds up a few immigration-related issues, such as military service, public health and, of course, the Sotomayor nomination.
Standing FIRM answered the question "What does Obama's SCOTUS nomination have to do with immigration reform?" While commentators are suggesting that the nomination is an indication of Obama trying to delay immigration reform, FIRM reminded us that the President is already scheduled to meet with Congressional leaders on immigration reform on June 8th.
Professor Michael A. Olivas of the University of Houston wrote of the nominee:
Judge Sotomayor's life and legal career are arcs possible only in this country: a hardscrabble life in a South Bronx housing project, educational opportunities made possible by her own intelligence and hard work, and a legal career devoted to public service.
A new poll by America's Voice also reminded us that immigration reform is a crucial issue for Latino voters, who voted overwhelmingly for Obama and largely expect him to "do the right thing" on immigration.
Polling from Gallup shows that the public reaction to Sonia Sotomayor is more akin to the positive reaction it had to Chief Justice John Roberts, than to the middling reaction it had to Harriet Miers and Justice Samuel Alito:
Despite the conservative rants about Sotomayor being dumb and racist, only 13% of the country thinks she is a poor pick. Assuming for a moment that Americans would consider someone who is dumb and / or a racist a poor pick for Supreme Court, only 13% of Americans share that view.
These polls matter, too. Roberts, who received a favorable reaction from the public, ended up with only 22 votes against his confirmation. By contrast, Alito received 42 no votes (though only 25 on the cloture vote) following his mixed public reception. The polls were the key factor here, given that Samuel Alito and John Roberts faced the exact same Senate, and have voted closer to each other than any other two Justices on the Supreme Court. (Alito and Roberts were the closest pairing in 2006 and 2007, and tied for the closest pairing in 2008, although in conjunction with Scalia they make a set of triplets).
Then again, Democrats were the opposition back then, and the Democratic caucus as a whole will never take an oppositional stance on anything unless dozens of polls show 60% of the country on their side (and even then, their opposition is usually only temporary and skin-deep). Republicans, on the other hand, clearly don't give a rat's ass what polls say. So the question now is not whether or not Sotomayor will be confirmed, but whether or not Senate Republicans fall in line with Gingrich and Limbaugh and make a show of opposing her. Will they choose to dig themselves an even bigger electoral hole with Latinos, only 15% of whom don't want to see Sotomayor confirmed, and reinforce their image as opposing President Obama and congressional Democrats for the sake of opposition? Or, will they, for once, largely take a pass and pick their battles more carefully?
Top Senate Republican strategists tell POLITICO that, barring unknown facts about Judge Sonia Sotomayor, the GOP plans no scorched-earth opposition to her confirmation as a Supreme Court justice.
More than 24 hours after the White House unveiling, no senator has come out in opposition to Sotomayor's confirmation.
"The sentiment is overwhelming that the Senate should do due diligence but should not make a mountain out of a molehill," said a top Senate Republican aide. "If there's no 'there' there, we shouldn't try to create one."
Barring something currently unforeseen, this one is over.
Even so, the process of the appearance of a fight still holds a lot of potential benefits for Democrats and progressives. First, a weak opposition to Sotomayor by Senate Republicans could open a real "rootsgap" between Republican Senate leaders and an activist base that has long rabidly focused on the judiciary. Second, Democrats can continue to concern troll the racially charged conservative media attacks on Sotomayor, which threaten both to drive a further wedge between Latinos and Republicans, and also to further the process story of "Republicans in series electoral trouble."
Confirming Sotomayor will be a substantive victory for Democrats (at least compared to the sort of nominee a Republican would have picked, if not over Souter's rulings). Right now, however, with that victory all but guaranteed, we need to keep hammering on the process of the fight, because it can do real long-term damage to the conservative movement and the Republican Party.
BREAKING!!!! OPEN LEFT EXCLUSIVE!!!! MUST CREDIT OPEN LEFT!!!! Supreme Court nominee Sonia Sotomayor has controversially claimed that non-white dudes might judge differently than white dudes in sexual and racial discrimination cases. Supposedly, this is because people see the world differently based on their different experiences, or something. Now, newly unearthed data shockingly suggests that this offesnive and outlandish claim might actually have some validity.
The first tip came when Chris Bowers, Open Left's Director of Perpetually Gazing at Exit Polls, discovered the following chart buried at the top of the first page of the rarely viewed 2008 national exit poll. It shows that people with different genders and ethnicities had a tendency to vote--brace yourself--differently from each other:
Holy demographic revelation Batman--people with different genders and races saw the world differently enough that they ended up voting differently than each other! Even more shockingly, according to a rarely known polling outfit called Pew, it appears that people with different ethnicities perceive differing levels of racism in the country:
I checked to se if the Pew poll was a fluke, but it turns out that 1,764 other polls confirm that white people believe there is less racism in American than black people.
So, it appears that people with different genders and ethnicities do actually view the world differently, including different views on the prevalence of gender and racial discrimination in America.
There is no word as of this writing on whether or not civilization can survive this earth-shattering revelation. However, Chris Bowers, Senior Apocalypse Preparation Director for Openleft.com, has told me that he is stocking up on canned goods--especially the lentil soups he really enjoys. Mmmmm.... lentils.
While Rush Limbaugh calls Supreme Court Nominee Sonia Sotomayor a racist and Ann Couler calls for a filibuster, GOP Senators are in a political bind. For a party already shrinking due to demographic changes (and lack of ability to manage any part of the government well) attacking an "up from the Bronx" Latina woman apparently isn't very palatable. Here's the best Republicans can muster:
Charles Grassley: "We need to ask tough questions to learn how this individual views the role of a Supreme Court justice."
Ouch. How about Jeff Sessions? He's attacking with a sports metaphor:
...we must determine if Ms. Sotomayor understands that the proper role of a judge is to act as a neutral umpire of the law, calling balls and strikes fairly without regard to one’s own personal preferences or political views.
But John Cornyn means business. He's making demands. Cornyn says the Obama administration won't get any cooperation unless... unless Sotomayor agrees to answer questions:
...the president has assured me that we will have ample time to give Ms. Sotomayor's record a full and fair review.
In nominating Judge Sonia Sotomayor to the Supreme Court, the President has made good on his promise to appoint someone with stellar qualifications and intellect who understands the experiences of everyday Americans. Raised in a Bronx housing project by her widowed single mother, Sotomayor graduated summa cum laude from Princeton and has had a remarkable legal career as a prosecutor, a private attorney, a trial court judge, and an appellate judge.
As a young lawyer, I had the privilege of serving as a clerk to Supreme Court Justice Harry Blackmun. Justice Blackmun was a wonderful man and a brilliant, dedicated jurist, but someone whose life had been rather insular before joining the Court. I remember him saying on many occasions how much he had learned from his colleagues on the bench and, particularly, from Justices Sandra Day O’Connor—a former state legislator and pioneering female jurist—and Thurgood Marshall—a civil rights hero who both experienced and helped defeat legal segregation. Justice Blackmun learned so much from these colleagues because they shared his intellect and commitment to fairness while bringing to the task a starkly different set of life experiences.
With few exceptions, the current Court is similarly insular and in need of new perspectives. With her remarkable credentials and inspiring life story, Judge Sotomayor promises to enrich the Court’s decision making for decades to come.
This post first appeared on The Stimulist. Read more at The Opportunity Agenda's website.
When Obama declared "empathy" a necessary quality for a Supreme Court justice, the main organs of print and TV media responded in their typically bifurcated way. Liberals praised Obama for understanding the need for a justice who could relate to "everyday people" while conservatives predictably lambasted the president for soft-mided, emotional wishy-washiness. One thing that journalists of all stripes seem to agree on, however, is that Obama's position represents an innovation, yet another example of how this president, for better or worse, thinks "outside the box."
As with every complex and meaningful issue in US social and political life, the MSM has understood the battle over Obama's selection of a new justice in the context of interpersonal rather than social conflict. That Obama's own statements about the meaning of empathy have echoed this tendency to personalize large issues contributes to this confusion.
A look at the history of US jurisprudence suggests that, rather than a sentimental innovation, Obama draws on a well worn body of legal tradition in calling for a justice with empathy. In The Common Law, Oliver Wendell Holmes, Jr. argues that "the life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed." I argue that we need to understand Obama's call for empathy in the context of what Holmes calls "experience."
