With millions of Americans out of work, House Republicans are focusing in on real priorities: decimating private abortion coverage and crippling public funding for abortion, as Jessica Arons reports in RH Reality Check.
In AlterNet, Amanda Marcotte notes that the No Taxpayer Funding for Abortion Act, or H.R. 3, also redefines rape as “forcible rape” in order to determine whether a patient is eligible for a Medicaid-funded abortion. Under the Hyde Amendment, government-funded insurance programs can only cover abortions in cases of rape and incest, or to save the life of the mother. Note that the term “forcible rape” is legally meaningless. Supporters of the bill just want to go on the record as saying that a poor 13-year-old girl pregnant by a 30-year-old should be forced to give birth.
Feminist blogger Sady Doyle has launched a twitter campaign against the bill under the hashtag #dearjohn, a reference to Speaker John Boehner (R-OH). Tweet to let him know how you feel about a bill that discriminates against 70% of rape victims because their rapes weren’t violent enough for @johnboehner, append the hashtag #dearjohn.
Everybody chill out
A federal judge in Florida ruled the entire Affordable Care Act unconstitutional on Monday. However, as political scientist and court watcher Scott Lemieux explains at TAPPED, the ruling is not necessarily a death blow to health care reform:
[T]his ruling is less important than the controversy it will generate might suggest. Many cornerstone programs of the New Deal were held unconstitutional by lower courts before being upheld by the Supreme Court. This ruling tells us nothing we didn’t already know: There is a faction of conservative judges who believe the individual mandate is unconstitutional. Unless this view has the support of five members of the Supreme Court — which I still consider very unlikely — it won’t matter; Vinson’s reasoning would have a much greater impact if adopted by the Court, but for this reason it is even less likely to be adopted by higher courts.
In a follow-up post, Lemieux explains the shaky legal reasoning behind Judge Robert Vinson’s decision. The judge asserts bizarrely that being uninsured has no effect on interstate commerce. That premise is objectively false. Health insurers operate across state lines and the size and composition of their risk pools directly affects their business.
Given the glaring factual inaccuracies, Judge Vinson’s decision may be overturned by a higher court before it gets to the Supreme Court.
Scamming Medicare
Terry J. Allen of In These Times win’s the headline of the week award for an article entitled “Urology’s Golden Revenue Stream.” She reports that increasing numbers of urologists are investing millions on machines to irradiate prostate cancer in the office. The doctors can bill Medicare up to $40,000 per treatment, but they have to use the machines a lot to recoup the initial investment. So what does this mean for patients? Allen explains:
Rather than accessing centralized equipment and sharing costs, physicians are concentrating their own profits by buying expensive in-practice technologies that pay off only if regularly used. One result is overtreatment, which is driving up health care costs, exposing patients to unnecessary radiation and surgeries, and is frequently no better than cheaper approaches.
One third of Medicare patients with prostate cancer undergo the expensive IMRT therapy, as the procedure is known. In 2008, Medicare shelled out over a billion dollars on a treatment that has not shown to be any better for patients than less expensive therapies.
Obstetric fistula in the developing world
Reproductive Health Reality Check is running a special series on the human rights implications of obstetric fistula. Fistula is a devastating complication of unrelieved obstructed labor in which the baby’s head gets stuck in the birth canal and presses against the soft tissues of the pelvis. If labor goes on long enough, the pressure will starve the pelvic tissues of blood, and they will die, creating a hole between the vagina and the bladder, and/or between the vagina and the rectum. Fistula patients face lifelong incontinence, chronic pain, and social ostracism.
The condition is virtually unknown in the developed world, where women with obstructed labor have access to cesarean delivery. However, an estimated 2 million women, primarily in sub-Saharan Africa and Asia, have untreated fistulas with an estimated 50,000 to 100,000 new cases occurring each year. Without reconstructive surgery, these women will be incontinent for life.
Sarah Omega, a fistula survivor from Kenya, tells her story. Omega sustained a fistula when she delivered her first child at the age of 19. She suffered for 12 years before she finally obtained the surgery she needed. As Agnes Odhiambo explains in another installment in the series, fistula is a symptom of a dysfunctional health care system. Women suffer needlessly because they can’t get access to quality health care.
The most likely victims of fistula are the most vulnerable members of their respective communities. Early childbearing increases a woman’s risk of fistula. Pregnant rape victims may face even greater barriers to a safe delivery, thanks to the social stigma that accrues to victims of sexual violence in many societies. (Not to mention any names, House Republicans…)
Preventing and repairing obstetric fistula is a major human rights issue. The U.S. should make this effort a high priority for foreign aid.
This post features links to the best independent, progressive reporting about health care by members of The Media Consortium. It is free to reprint. Visit the Pulse for a complete list of articles on health care reform, or follow us on Twitter. And for the best progressive reporting on critical economy, environment, health care and immigration issues, check out The Audit, The Mulch, and The Diaspora. This is a project of The Media Consortium, a network of leading independent media outlets.
by Catherine A. Traywick, Media Consortium blogger
After commanding the world’s attention in 2010 with its cavalier stance on immigration, the Arizona state legislature is threatening-once again-to dominate national immigration discourse and policy.
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.
The strategy and legal question that has been buzzing around LGBT circles, and articulated here at OpenLeft by Mark Matson, is whether or not advocates for equality between same-sex and opposite-sex couples should actually be hoping for the Department of Justice to appeal the case to the First Circuit and then the Supreme Court. The reason is because these cases are limited in their effects to the married, same-sex couples residing within Massachusetts borders only, while if the case is appealed and won at the First Circuit, same-sex couples in other states (most notably New Hampshire, which has legalized same-sex marriage, but also a few other states and Puerto Rico) would benefit. And of course, if won at the Supreme Court, it would affect the country.
The answers is complicated. Let me first get into the pathway for equality going forward.
First, let me say the caveat that after speaking with numerous legal experts, it is unlikely that one of the three following events would occur:
1) The Department of Justice declines to appeal.
2) The Department of Justice appeals, and our side wins, but the Department of Justice then declines to appeal to the Supreme Court.
3) The Department of Justice appeals, and our side wins, and the Department of Justice appeals to the Supreme Court, but the Supreme Court declines to hear the case.
I’m also told #3 is especially unlikely to occur if our side wins at the First Circuit.
With that said, let’s say for the sake of argument that one of the three does occur. The question on the table, then, is what is the pathway to equality for married, same-sex couples living in other states not in the First Circuit (either currently with legalized same-sex marriage now, or in the future)?
I spoke on the phone this afternoon with Gary Buseck, the Legal Director at GLAD, and over e-mail with Adam Bonin, the resident legal guru over at DailyKos and an attorney with Cozen O’Connor in Philadelphia. According to them, the pathway would be as follows:
1) Married, same-sex couples in other states/territories would need to experience some form of discrimination similar to what Gill experienced in the GLAD case, e.g. a denial of benefits such as health insurance for her partner that constitutes the federal government having two separate classifications of married couples- one with rights, one without. This is the rationale for the GLAD lawsuit.
2) The couples would need to become plaintiffs in a suit and file in the federal jurisdiction in which they live. This would then route through their own legal system, beginning with the appropriate federal district court and then into the Court of Appeals with jurisdiction over that district.
Alternatively,
1) A state would need to experience the same kind of treatment as Massachusetts did, which under Coakley argued that it was being forced to choose between denial of federal aid and discriminating against its own residents.
2) A state Attorney General would need to file a similar lawsuit on these grounds.
Essentially, go through the same process that has been gone through here, should one of the three situations listed above occur.
And of course, the other avenue to accomplish the same goal is to enact Rep. Nadler’s Respect for Marriage Act, which would repeal the entire DOMA statute, as well as legally extend the same federal rights and recognitions accorded to opposite-sex couples, no matter the state in which they are residing.
Now, does having to go through the legal maneuvers, plus the pain of continued discrimination, overpayment in taxes, having to buy one’s own health insurance, denial of certain Social Security benefits, etc. while the cases are working their way through the system, constitute a reason to hope that the Department of Justice appeals so that the effects of the ruling can be expanded across the nation?
That may be the wrong question to ask. Aside from it being unlikely for one of the three situations to come true, it appears unlikely that the SCOTUS will not hear this case, sooner or later.
I say that for three reasons Gary and I worked through. One, it’s not likely that one by one, a lawsuit or lawsuits will work its way through each of this country’s twelve circuits (not including the Federal Circuit, which only does patent law) over the next few decades, and every single time the federal government declines to appeal. Nor is it likely that if the government does, that every single time the SCOTUS declines to hear them. If we lose at one, it’s also not likely to happen for a second reason, which Gary pointed out to me- where there is a conflict in circuit court rulings- e.g., we win at the 1st Circuit but the 9th Circuit decides differently- that is often where the SCOTUS decides to step in. A third reason it’s also not likely is because if our side prevails, I’m told it’s more likely the SCOTUS will hear the case than if we lose.
So, when it comes to advocates for equality, there are definitely downsides to the government not appealing. On the other hand, this seems to be a road that has an end at the SCOTUS anyway, sooner or later. With that point of view, what would matter in determining whether or not to hope for appeal is your view of how friendly the SCOTUS is, now versus in the future. Which may be the better question to ask.
Jonathan Capehart worries about the effects of the Perry v. Schwarzenegger case regarding Prop 8:
Yes, there has been progress, much of it within the last 10 years. Same-sex couples are able to legally wed in five states (Massachusetts, Connecticut, Iowa, Vermont, and New Hampshire) and, most recently, the District of Columbia. Maryland, Rhode Island and New York legally recognize marriages performed in other jurisdictions. But in that same period, 30 states passed constitutional amendments or statutes that define marriage as being between one man and one woman. In fact, the Wisconsin Supreme Court ruled unanimously on June 30 to uphold that state’s constitutional ban on same-sex marriage and civil unions. Remember what Kagan said about the court recognizing the limits on itself and respecting “the choices made by the American people”? Given the current landscape, it would be astounding if the court overturned the will of the people as expressed through state constitutions, acts of the legislature and at the ballot box.
Here’s something else to consider. The Massachusetts Supreme Judicial Court ruling that ushered in marriage equality there in 2004 also kicked off a push to enshrine discrimination in the Constitution through an amendment banning same-sex marriage. It went nowhere then. I’m not so sure today. Two-thirds of the states — 38 — are needed to amend the U.S. Constitution. As I just mentioned 30 states have already done it on their own. Or look at it this way, 45 of the 50 states currently do not permit same-sex marriage.
Legally speaking, the kindling is there for a controlled blaze confined to California or an inferno that could stop the national march toward marriage equality in its tracks possibly for decades either through a constitutional amendment (extremely difficult, but not impossible) or, as Rauch put it, through an “aggressively dismissive ruling” from the Supreme Court. All that’s needed is a spark. Right now, Judge Walker is the man holding the matches.
Capehart is incorrect about the chances for a federal Constitutional amendment- it must be proposed by a 2/3 vote in both houses of Congress, or by a convention called by 2/3 of the states, and then ratified by either 3/4 of the states of 3/4 of conventions. So I’m not as worried as him, for that and a variety of other reasons. But on the merits of taking up the case and worrying that a hostile Supreme Court will go against us, there has always been a vigorous debate about whether or not to take file cases arguing bans on same-sex marriage violate state constitutions, or the U.S. Constitution. My view is that if there is a chance of winning on this one, it’s worth going for.
I say that because it’s not just Perry v. Schwarzenegger that the SCOTUS will consider. Every year there is more progress on marriage equality, both in the states and internationally. Capehart takes the view of where states are now. Call it glass half empty versus full, but I take the view of where they are going. Any SCOTUS scholar will tell you that what happens in the states makes a difference between now and whenever the SCOTUS may take up Perry v. Schwarzenegger. People forget that before Prop 8, the California legislature voted to legalize marriage equality- twice- before Schwarzenegger vetoed. Since then, 5 other states and DC have enshrined the freedom to marry in law, either legislatively or judicially- and we’ve come within a hair’s breadth in other states like Maine and (arguably) New York. In other states like Iowa and New Hampshire this year, the legislature voted against, or declined to through other means, taking up efforts to repeal, or constitutional amendments to ban, marriage equality after it became law. Public opinion has also moved steadily our way and will continue to do so. Efforts like like this one to get candidates for Attorney General in New York State to pledge to join the DOMA lawsuit are helpful to that end, as are Courage Campaign’s Equality on Trial project and Freedom to Marry’s videos of political voices for equality. As Capehart cites, Lawrence v. Texas came about in part because Kennedy et al recognized where states had moved- and states are moving, albeit slowly, in our direction on marriage equality. As one colleague put it to me, we are creating the climate and momentum for a win, and must continue to do so.
So I’m not sure those in our legal system will necessarily focus on the 30 states (and in the great majority of which our side were under-resourced or did not run a good campaign, if one at all). They may instead, take stock of where the public is moving on this, which is, without a doubt, forward on this issue. And it’s not just the case on its merits- it’s everything our side does to support the cases out in the states, that make up our side’s fight.
After passing literally nothing of substance into law in June, Congress will be in recess off starting on Friday, July 2nd and resuming on Monday, July 12th. Considering how little they got done over the past five weeks, there is a long list of issues they will struggle with during the break, and when they return:
Dems need one more vote to pass unemployment extension. Passing a nearly stand-alone unemployment extension (it is coupled with an extension of the homebuyer’s tax credit) is the only thing that could actually happen before recess. However, it might not, since Democrats are one vote short and Byrd’s replacement won’t be around until after recess. Annie Lowrey has the state of play:
Senate Majority Leader Harry Reid (D-Nev.) is telling reporters that he has the votes of two Republicans for his extension of federal unemployment insurance benefits. He also says he is one vote away from having 60 senators to vote for cloture on the bill, which would then move forward to a final vote.
Though there are currently 58 members who caucus with the Democrats, meaning the addition of two Republicans brings the number to 60, Sen. Ben Nelson (D-Neb.) is not in support of Reid’s bill. “If we had Senator Byrd’s replacement we would have 60,” Reid told The Hill. “We have to wait and see what a couple of Republicans do.” The two Republicans are most likely Sens. Susan Collins and Olympia Snowe of Maine, both of whom have signaled they would be willing to vote for a standalone measure.
A Senate Democratic aide says gaining the 60th vote with both Collins and Snowe likely on board is proving extremely difficult – because Sen. Scott Brown (R-Mass.) has indicated he will not vote for the proposal.
This bill originally had nearly $200 billion in new domestic spending. It included tens of billions, each, to prevent laying off teachers, preventing reduced Medicare payments to doctors, funding Medicaid, infrastructure projects, the extension of a variety of tax breaks, AND unemployment benefits. It was, in effect, a second stimulus bill. Now, even worn down the the nub, it is still in serious danger of being defeated.
Update: The bill was defeated last night by one vote. Dems will wait until Byrd’s replacement is appointed to pass it.
Wall Street reform definitely will not be finished this week: This evening, House passed the conference report on Wall Street reform, 237-192 (with 3 Republican votes, actually). However, we are still going into the recess on this one. Harry Reid says Wall Street reform will not be done before the July recess:
Senate Majority Leader Harry Reid (D-Nev.) told reporters Wednesday that Senate procedures would not allow him to bring the bill to the floor on Thursday.
Members of the Senate will be away from Washington on Friday to attend the funeral of Sen. Robert Byrd (D-W.Va.) in Charleston.
“I can’t because I can’t procedurally get to it,” Reid said.
The current plan is to file cloture on July 12th, the day Congress returns. So, Wall Street gets a chance to peel off enough votes to defeat the bill.
War supplemental legislation also headed until after recess: Yesterday, House Democrats stripped $3.9 billion in aid to the Afghanistan government from the war supplemental bill, citing corruption. That change alone guaranteed that this fight would not be finished before the break, since any changes to the bill have to also be approved by the Senate (which passed war supplemental that included the $3.9 billion). Today, House Dems are proposing a further change that would provide $10 billion in aid to states:
House Democrats today proposed adding $10 billion to a pending war-funding bill to prevent layoffs of an estimated 140,000 school teachers as part of an effort to revive a stalled jobs agenda
Given the fate of the second stimulus bill in the Senate, I am not confident about this passing. However, given that it will likely further delay passage of the war supplemental, I am all for it. No domestic economic relief funding, then no war funding. Block the bill until we get relief here at home.
Kagan continues to sail through confirmation hearings. No trouble spots have appeared for Kagan yet in her confirmation hearings. Don’t expect any problems to appear, either. As Chriis Hayes said:
Just occurred to me that these hearings are MUCH easier when you don’t have decades of decisions you need to both recall and defend.
Compromises continuing on climate change. Once Wall Street reform is passed or defeated in the first week after recess, it will be on to the energy / climate bill. Just in case you missed it, yesterday John Kerry beautifully summarized the state of that bill:
“We believe we have compromised significantly, and we’re prepared to compromise further,” Kerry said.
Yesterday, the compromise talk was of only putting a price on carbon when it came to utilities.
That’s what’s on tap in the Senate for the next month. And really, that is what’s on tap in Congress until the elections. Once Congress adjourns in early August, they won’t be back until after Labor Day. And, even when they do return, don’t expect much to get done so close to the elections.
Immediately after the elections, there are two big fights:
Reforming Senate procedure:: On this subject, a new Brookings Institute paper on that subject is worth a read. It provides a good background on recent procedural fights in the Senate, and examines possibilities for reform. Of particular interest, it argues that just forcing the minority to engage in a “real filibuster” won’t work.
Deficit commission report: Personally, I still think anything the deficit commission recommends (report due in Decemeber) in will be too unpopular to ever pass Congress. A coalition also seems impossible legislatively, as proposing just one tax increase, and one benefit reduction, would sink the whole enterprise. However, with even Andy Stern, one of the more progressive members of hte deficit commission, suggesting that some of the Social Seccurity trust fund should be invested in Wall Street, it seems like this is going to be a big fight we have to negage anyway.
That is what is on tap for the next six to seven months in Congress–plan accordingly.
Elena Kagan’s Supreme Court confirmation hearings kicked off on Monday. Her nomination has been met by glum resignation on the left and indifference on the right, as Adam Serwer notes in the American Prospect. Kagan is hoping to replace the Supreme Court’s most prominent liberal, Justice John Paul Stevens, who stepped down earlier this week. Progressives are counting on Kagan to shore up the pro-choice faction on the court.
Kagan has never been a judge and she hasn’t published very many academic law opinions. As a result, the confirmation process is leaning heavily on her counsels to President Bill Clinton as a White House adviser, her clerkship with legendary liberal Supreme Court Justice Thurgood Marshall, and her stint as Dean of Harvard Law School.
RH Reality Check has video of a key exchange in Kagan’s confirmation hearing yesterday, in which Sen. Diane Feinstein (D-CA) pressed Kagan on her views about life and health exemptions for the mother within abortion bans.
“Do you believe the constitution requires that the health of the mother be protected in any statute restricting access to abortion?” Feinstein asked Kagan.
“Senator Feinstein, I do think that the continuing holding of Roe and Doe v. Bolton is that women’s life and women’s health have to be protected in abortion regulation,” Kagan replied.
That’s a good start, but it’s hardly the ringing endorsement of choice that progressives would have hoped. Kagan went on to talk the special case of “partial birth abortion bans,” which she encouraged Bill Clinton to support while he was president. “Partial birth abortion” isn’t even a medical term. It’s a marketing term coined by anti-choicers in their bid to chip away at Roe v. Wade. For pro-choicers, it’s disappointing to see Kagan uncritically buying into that frame.
Title X and the Gag Order
Jodi Jacobson discusses Kagan’s record on choice issues in greater detail at RH Reality Check. She notes that the Center for Reproductive Rights reviewed Kagan’s record and raised many questions about her views on abortion. On the bright side, CRR believes that Kagan would have struck down the Title X gag rule. Title X was established in 1970 to provide public funding for reproductive health care, including birth control.
In 1988, the Secretary of Health and Human Services imposed a so-called “gag rule” that prevented doctors from talking about abortion and required them to refer patients to services for the welfare of “the unborn.” Kagan argued in a 1992 law review article that the gag order violated the First Amendment because the government was trying to silence one point of view while promoting another.
However, in a memo for Justice Thurgood Marshall, Kagan said it was “ludicrous” that a lower court found that the Eighth Amendment guarantees elective abortions for women in prison. Kagan disagreed with the lower court’s finding that elective abortions are “serious medical needs.”
Obamacare all over again
A Supreme Court confirmation hearing is like Shark Week on the Learning Channel. Chum’s up!
Sen. Jeff Sessions (R-AL) criticized Kagan for rejecting the fringe legal theory of “tentherism,” a position that opponents of health care reform have used to argue that Obamacare is unconstitutional. As Ian Millhiser observes in AlterNet, it’s ironic that Sessions also criticized Kagan as an incipient “activist judge.” Embracing “tentherism” would be nothing if not judicial activism. It’s extremely unlikely that any tenther-based challenge would make it to the Supreme Court.
Outside the Senate chamber, anti-gay activist Peter LaBarbera is demanding to know whether Dean Kagan schemed to allow transgender people to use the bathroom of their choice, reports Stephanie Mencimer of Mother Jones.
Some Republican senators questioned Kagan about her decision to bar military recruiters from school-sponsored recruiting events at Yale Law School over Don’t Ask Don’t Tell. On the outside, a Yale grad and Republican activist named Flagg Youngblood has taken to the talkshow circuit to complain about how he had to attend ROTC drills at another school. It’s not clear why any of this is Kagan’s problem, seeing as she was Dean of Harvard and took a much weaker stance on military recruiting.
That’s not cooling Youngblood’s apocalyptic anti-Kagan rhetoric, though, Adam Weinstein reports in Mother Jones. “In the last 18 months, the president and his plotting comrades have dragged the United States to the edge of Constitutional oblivion. America’s in the eleventh hour, and Elena Obama must be stopped from pushing us over the cliff,” Youngblood recently proclaimed.
Part of the plan
Meanwhile in Nevada, Republican Senate hopeful Sharron Angle is in hot water for asserting that women who get pregnant through rape must be forced to give birth because these pregnancies are all part of God’s plan. Good catch by Vanessa Valenti of Feministing.
“You know, I’m a Christian, and I believe that God has a plan and a purpose for each one of our lives and that he can intercede in all kinds of situations and we need to have a little faith in many things,” Angle said in an interview with a conservative broadcaster in January.
This post features links to the best independent, progressive reporting about health care by members of The Media Consortium. It is free to reprint. Visit the Pulse for a complete list of articles on health care reform, or follow us on Twitter. And for the best progressive reporting on critical economy, environment, health care and immigration issues, check out The Audit, The Mulch, and The Diaspora. This is a project of The Media Consortium, a network of leading independent media outlets.
If you had forgotten all about Elena Kagan’s nomination to the Supreme Court, and that her confirmation hearings are scheduled to begin today, then you are not alone. The Kagan nomination fight has really flown under the radar. According to Pew, the week Kagan was nominated, all of 5% of the country said news of her nomination was the story they followed most closely (tied for third with news of Iraq). Since that time, her nomination never cracked the top five news stories, or was the top story for more than 1% of Americans, again.
All of this is good for the White House, since Kagan’s confirmation numbers are less than stellar. As I analyzed four weeks ago:
So far, Gallup, Fox, Pew, and Rasmussen have released polling on whether the public thinks Elana Kagan should be confirmed or not. Compared to polling from these same four outlets at the same point in the Alito and Sotomayor confirmation process, Kagan lags behind (see Miers, Alito, Sotomayor, and Kagan for the Rasmussen polls, and here for all other polls).
Sotomayor: +18.2% (mid-June 2009)
48.0%–29.8%
Alito: +12.3% (mid-December 2005)
37.3%–25.0%
Kagan: +9.0% 37.8%–28.8%
Miers: +1.5 (late-October 2005)
35.5%–34.0%
Kagan has a net positive “confirm” of 9%. While that puts her well clear of the failed nomination of Harriet Miers, that is half of what Sonia Sotomayor had in mid-June of 2009 according to these four polling firms, and even less than Samuel Alito’s numbers in mid-December of 2005.
Since that time, Kagan has continued to receive anemic numbers from CNN (44%–39%), Pew (33%–25%) and NBC (29%–23%). Even without a clear line of attack on Kagan, these are tricky numbers for a Supreme Court nominee. There was one wildly favorable poll for Kagan, from ABC / WaPo in early June. In that poll, Kagan’s confirmation numbers were 58%-24% in favor. The difference between that survey and the others which have been conducted is that she was referred to as “U.S. Solicitor General Elena Kagan” rather than just “Solicitor Elena Kagan” or “Elena Kagan.”
Despite these (generally) low poll numbers, Kagan’s confirmation appears to be a certainty. The ranking Republican on the Judiciary committee, Orrin Hatch, waved the white flag this morning:
Sen. Orrin Hatch (R-Utah), the second-ranking Republican on the committee who has at times served as its chairman, downplayed the likelihood of Republicans looking to block Kagan’s nomination, as the Judiciary panel begins hearings on her this morning.
“I don’t think anyone’s going to do that,” Hatch said during an appearance on MSNBC when asked if a filibuster was in order. “After all, there’s 59 Democrats, and I suspect there’ll be a few Republicans who will vote for her regardless.”
That Republicans are basically giving up any attempt to defeat Kagan, despite her low poll numbers, is a ratification of the blank slate strategy for Supreme Court nominees. A blank slate is a boring news story, and so there was little coverage of her over the past six weeks. A blank slate also doesn’t have scandals or skeletons, which has prevented Republicans from adopting a coherent or effective line of attack against her. It is also a replication of what the Bush White House did with John Roberts, so the blank slate strategy now has the bipartisan seal of approval.
At the end of a very hot June, with political attention still turned elsewhere, and with Kagan effectively pulling off a blank slate strategy her whole life, her confirmation appears certain. More worryingly, it also seems certain that any future President will be able to replicate this blank slate strategy with any nominee. If there is a way to defeat it, no one appears to have figured it out yet.
Prior to the Supreme Court’s recent decision in Carachuri-Rosendo v. Holder, many legal U.S. residents who had committed minor is demeanors were unfairly classified as having committed "aggravated felonies" under immigration law, which subjected them to automatic deportation. The Supreme Court took note of the unfair deprivation of due process and took a strong stance in support of human rights when it corrected the deportation requirement for minor drug offenses.
The Supreme Court’s refusal this week to hear the claims of Maher Arar, a Canadian sent to Syria to be interrogated under torture in 2002, is appropriately being condemned as another example of the U.S. avoiding any legal or moral responsibility for government- sanctioned torture.
What seems to shock and outrage people about the Arar case in particular is that the facts are not in dispute. Canada, whose security services were complicit in his rendition to Syria, has publicly acknowledged its responsibility, compensated Arar,and launched a criminal investigation of U.S. and Syrian officials. The United States, on the other hand, has still neither admitted its role nor held any U.S. officials accountable. And, it hasn’t paid Arar a dime.
The United States’ refusal to acknowledge its role in the torture of terrorism suspects even when faced with overwhelming evidence of U.S. involvement has become an unfortunate pattern. But it’s heartening to see that other countries aren’t dropping the matter.
On Monday, the European Court of Human Rights announced that it would hear the case of Khaled el-Masri, a German citizen seized by Macedonian authorities at the request of the United States. El-Masri was beaten and abused during interrogations in both Macedonia and the notorious “Salt Pit” in Afghanistan. Authorities unceremoniously dumped him on a roadside in Albania without charging him with any wrongdoing.His case against U.S. officials was dismissed by a federal court on the grounds that it would reveal “state secrets.” The Bush and Obama Administrations have both invoked State Secrets to stop the disclosure of evidence that may reveal government misconduct.
And last year, an Italian court convicted 21 alleged CIA operatives and a US air force operator for their role in the kidnapping and rendition to Egypt of Abu Omar, a Muslim cleric who was already under surveillance by Italian authorities, who suspected him of having ties to al Qaeda. Omar claims he was held incommunicado and tortured in an Egyptian prison for seven months. He was eventually released without charge.
The Obama administration has repeatedly insisted that it wants to look forward, not backward, and so has refused to examine the role of senior U.S. officials in the torture of terrorism suspects. In adopting that position, the government is reneging on its obligations under the Convention Against Torture, which demands both that torturers be held accountable and that victims receive remedies.
Until the U.S. lives up to those responsibilities, its past practices and officers will continue to be scrutinized by foreign governments and justice systems. Those verdicts will cast judgment not only on the past administration’s conduct, however. To the extent that foreign governments have to intervene to bring justice to victims of U.S. policies, they will reveal the extent of the United States’ current respect for the rule of law as well.
OK. As we look at the alarming crisis that BP and the oil industry has brought us to, as we evaluate the amount of military spending we are pouring into the middle east for no evident return (and as we consistently apologize for killing innocent civilians with airborne missiles), as we observe politicians and lobbyists letting payoffs and focused fundraising deny the needs of voters in favor of the needs of corporations, as we see the Supreme Court gradually eliminate generations of civil rights achievements, we are getting more and more convinced that making a change in America… indeed in the whole world… is getting less and less possible.
So far, Gallup, Fox, Pew, and Rasmussen have released polling on whether the public thinks Elana Kagan should be confirmed or not. Compared to polling from these same four outlets at the same point in the Alito and Sotomayor confirmation process, Kagan lags behind (see Miers, Alito, Sotomayor, and Kagan for the Rasmussen polls, and here for all other polls).
Sotomayor: +18.2% (mid-June 2009)
48.0%–29.8%
Alito: +12.3% (mid-December 2005)
37.3%–25.0%
Kagan: +9.0% 37.8%–28.8%
Miers: +1.5 (late-October 2005)
35.5%–34.0%
Kagan has a net positive “confirm” of 9%. While that puts her well clear of the failed nomination of Harriet Miers, that is half of what Sonia Sotomayor had in mid-June of 2009 according to these four polling firms, and even less than Samuel Alito’s numbers in mid-December of 2005.
While it still seems likely that Kagan will be confirmed, her numbers are low enough that a bad revelation or two might cause real problems. Even absent such a moment, the general lack of strong feeling on the nomination (another area where Rasmussen is an hysterical outlier, incidentally) means that there will be little political cost to Senators no matter how they vote. There is not much public engagement on this fight, leaving this nomination a largely internal affair for the Senate.
The U.S. Supreme Court decided yesterday that sentencing young people to life in prison without the possibility of parole for nonhomicide crimes violates the Constitution’s Cruel and Unusual Punishment provision. The majority opinion, written by Justice Anthony Kennedy, upholds basic constitutional principles of opportunity, rehabilitation, and the capacity of young people to grow and change over time.
“A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime,” the Court said. “What the State must do, however, is give defendants … some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”
Requiring the possibility of parole for youth in nonhomicide crimes is the right decision under the Constitution, and the right outcome for our country. It is no guarantee of release in any particular case, but, rather, a guarantee that our criminal justice systems must provide for careful review to determine whether, years later, young offenders continue to pose a threat to the community.
The decision also recognizes that young people’s brains and emotions are still developing. They must be held accountable for crimes they commit, while acknowledging their greater capacity for change.
The states should respond to this decision not only by abolishing the sentence of life without possibility of parole for young people-which they must do under yesterday’s decision-but also by improving their rehabilitation programs for all people in prison. Better preparing incarcerated people to reenter and participate productively in society is a smart response to the Court’s decision, and is in our national interest.
On Monday, President Barack Obama nominated solicitor general Elena Kagan to replace retiring Justice John Paul Stevens on the Supreme Court. Kagan’s nomination has raised eyebrows among progressives. Despite a long career in legal academia, Kagan has published very little. She seems to have studiously avoided taking a stand on almost any controversial issue. Ruth Coniff of the Progressive calls the Kagan pick “a triumph of the bland.”
“Partial Birth Abortion” ban
As a White House aide, Kagan wrote a memo urging President Bill Clinton to support a ban on so-called “partial birth abortion.” At the time, the House had passed a sweeping late-term abortion ban with no exceptions for the life and health of the mother. Clinton asked Kagan whether he should throw his support behind a more moderate Senate version of the same bill. She recommended a “compromise”-a ban with a maternal health exemption. In the end, Congress passed the extreme version and Clinton vetoed it.
Suzy Khimm of Mother Jones characterizes the memo as “more indicative of a political strategy than a legal argument.” In other words, Kagan was giving strategic advice to the president about what would be politically feasible, not legal advice about the government’s powers to regulate abortion. Kagan argued that the president should support the “compromise” position even though the Justice Department thought it was unconstitutional, according to Jodi Jacobson of RH Reality Check.
At TAPPED, Monica Potts argues that the memo gives us little indication of how Kagan would vote on abortion as a justice.
No Harriet Miers
There’s no question that Kagan is possessed of a formidable intellect. Stephanie Mencimer of Mother Jones quotes one of her former law school students, Elie Mystal, sharing his experience with Kagan on the blog Above the Law:
Like Frodo on Weathertop, there are some wounds that never fully heal. Professor Kagan massacred me intellectually, and brutalized my pride. I got some form of a B in her class (I honestly don’t remember if there was a modifier – I’ve tried to suppress those memories). Kagan was a frightening professor for those who wanted to match wits with the brightest legal minds in the world. For people like me, people who just wanted to get through law school with minimal mental damage, Kagan was nothing short of terrifying.
That’s the best news I’ve heard all day.
Kagan has never been a judge, but that’s not necessarily a deal-breaker in itself. As Steve Benen points out at the Washington Monthly, over a third of the 111 justices of the Supreme Court have had no previous judging experience.
A missed opportunity
Scott Lemieux argues in the American Prospect that Obama is wasting a rare political opportunity to confirm a more liberal justice. Right now, the Democrats still have a sizable, though not filibuster-proof, majority in the Senate. Lemieux argues that Obama is almost certain to get another Supreme Court pick before the end of his term. Then again, he points out, the Democrats are likely to lose Senate seats in the midterm elections.
If Obama were ever going to get a strong liberal on the bench, this would have been the time. No date has been set for a confirmation hearing. Kagan is in Washington today, courting lawmakers.
This post features links to the best independent, progressive reporting about health care by members of The Media Consortium. It is free to reprint. Visit the Pulse for a complete list of articles on health care reform, or follow us on Twitter. And for the best progressive reporting on critical economy, environment, health care and immigration issues, check out The Audit, The Mulch, and The Diaspora. This is a project of The Media Consortium, a network of leading independent media outlets.
by Lindsay Beyerstein, Media Consortium blogger
On Monday, President Barack Obama nominated solicitor general Elena Kagan to replace retiring Justice John Paul Stevens on the Supreme Court. Kagan’s nomination has raised eyebrows among progressives. Despite a long career in legal academia, Kagan has published very little. She seems to have studiously avoided taking a stand on almost any controversial issue. Ruth Conniff of the Progressive calls the Kagan pick “a triumph of the bland.”
“Partial Birth Abortion” ban
As a White House aide, Kagan wrote a memo urging President Bill Clinton to support a ban on so-called “partial birth abortion.” At the time, the House had passed a sweeping late-term abortion ban with no exceptions for the life and health of the mother. Clinton asked Kagan whether he should throw his support behind a more moderate Senate version of the same bill. She recommended a “compromise”-a ban with a maternal health exemption. In the end, Congress passed the extreme version and Clinton vetoed it.
Suzy Khimm of Mother Jones characterizes the memo as “more indicative of a political strategy than a legal argument.” In other words, Kagan was giving strategic advice to the president about what would be politically feasible, not legal advice about the government’s powers to regulate abortion. Kagan argued that the president should support the “compromise” position even though the Justice Department thought it was unconstitutional, according to Jodi Jacobson of RH Reality Check.
At TAPPED, Monica Potts argues that the memo gives us little indication of how Kagan would vote on abortion as a justice.
No Harriet Miers
There’s no question that Kagan is possessed of a formidable intellect. Stephanie Mencimer of Mother Jones quotes one of her former law school students, Elie Mystal, sharing his experience with Kagan on the blog Above the Law:
Like Frodo on Weathertop, there are some wounds that never fully heal. Professor Kagan massacred me intellectually, and brutalized my pride. I got some form of a B in her class (I honestly don’t remember if there was a modifier – I’ve tried to suppress those memories). Kagan was a frightening professor for those who wanted to match wits with the brightest legal minds in the world. For people like me, people who just wanted to get through law school with minimal mental damage, Kagan was nothing short of terrifying.
That’s the best news I’ve heard all day.
Kagan has never been a judge, but that’s not necessarily a deal-breaker in itself. As Steve Benen points out at the Washington Monthly, over a third of the 111 justices of the Supreme Court have had no previous judging experience.
A missed opportunity
Scott Lemieux argues in the American Prospect that Obama is wasting a rare political opportunity to confirm a more liberal justice. Right now, the Democrats still have a sizable, though not filibuster-proof, majority in the Senate. Lemieux argues that Obama is almost certain to get another Supreme Court pick before the end of his term. Then again, he points out, the Democrats are likely to lose Senate seats in the midterm elections.
If Obama were ever going to get a strong liberal on the bench, this would have been the time. No date has been set for a confirmation hearing. Kagan is in Washington today, courting lawmakers.
This post features links to the best independent, progressive reporting about health care by members of The Media Consortium. It is free to reprint. Visit the Pulse for a complete list of articles on health care reform, or follow us on Twitter. And for the best progressive reporting on critical economy, environment, health care and immigration issues, check out The Audit, The Mulch, and The Diaspora. This is a project of The Media Consortium, a network of leading independent media outlets.
Following up on yesterday’s article about the lack of coordination and coherency from Kagan opponents, and potential opponents, in their media messaging, this afternoon I conducted a quick survey of Google News keywords to see what narratives were sticking on Kagan. I don’t claim this to be a scientific survey, but hopefully it still provides some insight into where the fight to define her currently stands.
Overall, since Sunday, there have been 16,360 stories on Google News ith the exact phrase “Elena Kagan. Here is how often the following possible memes on Kagan were found in news stories that contained her name:
The good news for the White House is that no single meme is very dominant. Even “liberal,” the most common term I could find, fails to appear in even 20% of articles on Kagan. As such, my main speculation from these numbers is that there really is no narrative developing on Kagan at all.
The less positive news for the White House is that even though there is no dominant narrative, two of the two most common mini-narratives appear to be over her lack of experience as a judge, and that she might be a lesbian. With positive memes, such her intelligence, not receiving much play, this nomination process could end up taking an unexpected direction.
Might this fight end up being, somehow, over whether or not Kagan is a homosexual, whether or not that is OK, and whether or not she hid this from the public? At this stage, that seems entirely possible to me. Not much else is sticking to her right now, and that certainly seems like the type of storyline that could take off in a way that virtually nothing else listed here could (with the possible exception of the military recruiters on campus story). If this does happen, don’t be shocked.
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