Republicans--The White Man's Party

If you are going to be the White Man's Party, as the Republicans more surely are, you might as well go all the way and attack Thurgood Marshall when Marshall's son is in attendance:

Ranking member Sen. Jeff Sessions (R-AL) criticized Kagan for having "associated herself with well-known activist judges who have used their power to redefine the meaning of our constitution and have the result of advancing that judge's preferred social policies," citing Marshall as his son, Thurgood Marshall Jr., sat in the audience of the Judiciary Committee hearings.

Classy.

And when does the idea that Democrats are the activist judges end, particularly given the Roberts court vastly remaking the law? I suspect this is happening, but good god.

The Kind of Ideological Consistency Only Antonin Scalia Can Provide

Since the Supreme Court has ruled 5-4 that state and local governments cannot restrict the 2nd Amendment and must fall under federal law, I look forward to the 5 conservative justices also throwing state abortion restrictions out as unconstitutional.

It's all about rigorous intellectual consistency with these guys, right?

Cornyn Brings The Stupid

John Cornyn, when asked if he would vote for a gay nominee to the Supreme Court, answered, “I’d have to think about that,” he said. “As long as it doesn’t interfere with their job, it’s not a particular issue.”

I'm just wondering how being gay would interfere with the job of the judge.

Of course, given that Cornyn's opinion that a Supreme Court judge should agree with all of his own policy agenda, clearly being gay would get in the way for such a judge. Since Cornyn wants a constitutional amendment to ban gay marriage, I guess it would be OK for a judge to be gay if the judge was both in the closet and self-hating. Just the kind of gay person John Cornyn likes.

 

Corporate Bought America

The Supreme Court's overturning of campaign finance restrictions by corporations and unions is terrible, if predictable, news. We can now expect the Chamber of Commerce, big pharma, insurance companies, and oil companies buying and selling elections in a style not seen in this country since the Gilded Age.

Speaking of the Gilded Age, I blame those years of the Supreme Court, far and away the worst courts in American history, for giving corporations the same rights as actual people under the 14th Amendment. We still live with the negative consequences of this today. I am planning to begin a new series examining different Gilded Age SCOTUS decisions. As a society we are largely unaware of how these decisions still affect us today; despite the Progressive Era, New Deal, and Great Society, we have not undone the damage. That today's court has decided that corporations have the same speech rights as you and me is yet another example.

To John Cornyn et al in re: Sonia Sotomayor

Dear Senate Republicans,

I understand that you have your own reasons as to why they wouldn't want your confirmation to go smoothly. However, given recent history, you really have no room to express concern over whether Sonia Sotomayor would "uphold the constitution" or not. Please just stick to your racist talking points instead.

Signed,
Mr. Trend

PS: Thank you, Tom Coburn, for sticking to the crazily-ignorant talking points, and making Cornyn look a little (but just a little) more sane.

He's nothing if not consistent...

That Clarence Thomas holds a seat on the bench of the Supreme Court of the United States is something that makes my blood boil. He is without a doubt the worst High Court justice in my lifetime; I don't know enough of the history of the Supreme Court to make any assertion past that, but I have to think he's in the running for top five all-time worst.

Proving this once again, The Honorable "Is-that-a-pubic-hair-on-your-coke" Justice Thomas is the lone dissenting opinion in Safford Unified School District vs. Redding. If you aren't familiar with the background, here's the gist: school officials were tipped off by a student that another student was in possession of some ibuprofen and naproxen (the ibuprofen was a prescription-strength pill, the naproxen over-the-counter). These alleged drugs would have been a violation of the school's drug policy, had they existed. School officials brought the 13 year old girl to the office and searched her bag, her pockets, etc., which yielded no drugs. Then she was taken to the nurses office, where she was told to strip to her underwear. From the majority opinion (the whole can be found here): "Finally, Savana was told to pull her bra out and to the side and shake it, and to pull the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found".

The majority clearly identifies that this is an unconstitutional search-- not least in part, in my opinion, that they were operating off of an allegation from another student. The idea that school-age children can bring down invasive strip searches on their peers is idiocy-- the fact that the alleged drugs were never found makes this painfully obvious. That the alleged drugs were normal pain relievers contributed to the unreasonableness of the search. As Justice Souter wrote for the majority, "what was missing from the suspected facts that pointed to Savana was any indication of danger to the students from power of the drugs or their quantity, and any reason to suspect Savana was carrying pills in her underwear. We think the combination of these deficiencies was fatal to finding the search reasonable". Especially so, since the "adolescent vulnerability intensifies the patent intrusiveness of the exposure".

Thomas's dissent (also found in the linked document above) is based around the argument that any kind of search is reasonable (given some kind of "reasonable suspicion") if it is conducted only in places were the contraband could be hidden. His logic is that since you could hide pills in your crotch, school officials could look there (there's even a pretty weird part of the dissent where he cites several incidences of people hiding drugs in their underwear... I'll refrain from snark and you let you imagine your own). He contends that school officials, parents, and local governments are all "better suited than judges to determine the appropriate limits on searches". Wait, what? Isn't upholding and interpreting the Fourth Amendment a judicial bailiwick? Where's the logic in school administrators deciding if their actions are reasonable in cases like this? Is it only different because it is a school? Granted, the court has held that there are slightly different rules in schools, but the Constitution doesn't end at the school's door. This seems like a completely ideological decision on his part, and the opinion contains a strange line in its last paragraph-- "By doing so [finding the search unconstitutional], the majority has confirmed that a return to the doctrine of in loco parentis is required to keep the judiciary from essentially seizing control of public schools". Seriously? Are you trying to make Scalia and Alito look reasonable or something?

Memo to Indiana Pension Funds: Stop Whining

The deal to sell Chrysler to Fiat has become bogged down because of lawsuits filed by several Indiana pension funds that hold Chrysler debt. Under the current sales plan and bankruptcy proceedings, the funds would receive 29 cents on the dollar for their portion of the debt. This isn't enough for them, so they have temporarily blocked the sale via the courts. Absent the deal with Fiat, Chrysler would likely be cut up into parts and sold off (it seems that some debt holders like the pension funds think that there is more to be made off of the carcass of the company than 29 cents on the dollar-- I'm not sure how). I suppose I would have more sympathy if not for two reasons-- one, this debt was purchased in the summer of 2008 (really?), and two, that everyone-- from individual 401(k) accounts to university endowments to hedge funds to real estate investors-- have lost their asses in the last year. Take it on the chin like everyone else in the world.

It just came out that Ginsberg has granted the temporary stay despite Obama's Solicitor General filing papers against the stay this morning; it seems the matter will be referred to the full court (though there is a possibility that Ginsberg will rescind the stay and allow the deal to close by herself). This is not good; if the deal with Fiat falls through, it will cost even more jobs and will be a huge blow to the UAW.

I agree with Michigan Democratic congressman Gary Peters in his statement that "the state of Indiana was risking losses far greater than its investment in Chrysler’s loans should the company be forced to liquidate".

Papacy and the Supreme Court

With all the meaningless trivia and objections being thrown around about Sotomayor's nomination, is anybody else as shocked as I am that, if she is appointed, there will be six Catholics on the Supreme Court, along with two Jewish judges and only one protestant (John Paul Stevens).

I don't think there's a lot to take from that fact. I suppose you could perhaps argue that Alito's/Thomas's/Scalia's/Roberts' stance on abortion and Roe v. Wade may have something to do with their religion, but that's not necessarily automatic, and certainly Sotomayor's stance on the issue and her religion are probably not in complete agreement. Still, for a country that's had exactly one Catholic president ever and has a rich anti-Catholic (along w/anti-Irish, anti-Italian, and anti-Spanish/anti-Hispanic) legacy at various periods through its history, that there are six Catholics strikes me as rather remarkable.

(And to be clear about two things: A) I'm not pretending this is any deep analysis or mind-blowing observation; and B) I really don't think this should be used as a platform to say, "oh my God! We need more Protestants/atheists/polytheists/whatever!" That is, not unless we feel the Supreme Court needs more casseroles and jello salads, in which case a Protestant or two are definitely needed).

Sotomayor

Knocked off a piece for Global Comment on Sotomayor yesterday. As usual, here's a piece of it and you can read the whole thing there if you'd like.

Sotomayor is 54, from the Bronx, Puerto Rican, a summa cum laude graduate of Princeton and a Yale Law School grad, where she edited the Law Journal. She has also been an adjunct professor of law at New York University and a lecturer at Columbia University. She was the early target of attacks from the right, who called her a bully and implied that she would be an affirmative action choice—because Ivy League schools give out honors designations by gender and choose law review editors because of their skin tone all the time.

Aside from the fact that there’s nothing wrong with going with the one qualified jurist who has a background not currently represented on the Court, Obama’s choice of the judge who had faced the earliest, most pointed racist and sexist critiques from the right and a horrible article in “even the liberal” New Republic is a welcome sign. It shows critics and supporters alike that he’s not afraid of the fight, not afraid to put some political capital behind a judge with a working-class background and impeccable credentials. After the news of recent weeks, with discussions of indefinite detentions and restarting military tribunals, a signal from Obama that he hasn’t forgotten his roots is a move in the right direction.

Of course we can prepare for more racist, sexist Bingo in the upcoming fight. No doubt there will be more hints that Sotomayor isn’t that smart, that she isn’t qualified, that there’s some white guy out there being oppressed by the fact that Obama’s chosen a Latina. Post-Sarah Palin, it could be harder for the GOP to turn around and make the predictable sexist cracks, though, and post-Michael Steele, when at least part of the party seems to realize it has a diversity problem, can they afford to vote against the first Latina nominee to the court?

Roberts: Not a Stealth Hard-Liner

Jeffrey Toobin's New Yorker profile of John Roberts is interesting, but bizarre in one key point. He is called "The Supreme Court's stealth hard-liner." Huh? Was there any question that he would be a right-wing ideologue?

Of course, Roberts said in his confirmation hearings that he would seek consensus and such. And since everyone says he's a nice guy, people took him at his word. Why on earth would you do that? Why didn't people look at, oh I don't know, the massive preponderance of evidence about Roberts from the beginning of his career in the Reagan administration until his confirmation hearings. Every since bit of that would show that he was a hard-liner.

The other interesting thing about Roberts, particularly in the context of the unintentionally hilarious right-wing arguments that Sotomayor is a racist, is that he actually clearly is a racist. Toobin emphasizes how much Roberts obsesses about race, looking to turn back any kind of attempts to level the playing field through the law. One might argue that in 2009, we have achieved some semblance of racial equality and such laws are not necessary. You'd be wrong, but rather than argue for that point, I would say go back and look at Roberts' record from the very beginning. Even in the early 80s, when key civil rights legislation has barely taken effect and when open racism is still the norm in much of the country, John Roberts was saying the same thing. I cannot accept any other position other than John Roberts is a racist.

Finally, Roberts has expressed a preference for authoritarian power throughout his career, particularly favoring the executive over the legislative. This seems to be a principle for him. But does anyone really question that when faced with laws created by a Democratic president that his supposed clear thinking about these issues will suddenly change to fit his political preferences? I don't.

All in all, I think a president should more or less get to name the Supreme Court justices they want, at least within reason. It's part of the job. But that anyone would believe anything Roberts said in his confirmation hearings, or for that matter, that anyone would believe anything anyone said in a confirmation hearing, is mindboggling.

On Obama's possible Supreme picks.

Greenwald has an excellent piece on Sonia Sotomayor (and as usual, rips Establishment media a new one for using anonymous sources in the process).

I know far, far less than he does about Sonia Sotomayor or about the relative fitness of judicial nominees for the job. I was far more qualified to talk about Sarah Palin and the attacks leveled at her for being an affirmative action hire, a pretty dumb chick whose appeal was solely prurient.

Rebecca Traister pointed out the obvious gender bias to the TNR piece in question, a bias that is only multiplied by her being of Puerto Rican descent, as Adam Serwer notes. She's bossy! She doesn't shut up! She's not that smart--Obama is prioritizing diversity! (The Clarence Thomas arguments, of course, are too obvious.)

When Bush nominated Harriet Miers for the Court, we heard similar arguments about her intellectual ability--and we didn't argue. When Sarah Palin got the Republican VP nomination, we giggled and made our own jokes. Now Obama's nominees will face the same kind of criticisms, ones that would never be leveled at a white guy up for the same job, and what do we say?

It's a double bind. We don't want to be unable to criticize female nominees or people of color (*cough cough* Gonzalez--or closer to home, Roland Burris) but we need to be consistent in noting the difference between substantive attacks and gender or racially motivated ones. It's entirely possible that Sonia Sotomayor is not the best choice for the Supreme Court, but I very much doubt that she's any less "smart" than Thomas, Alito, or any number of federal judges that the Right (or the nominal left as represented by TNR) would have no problem with--because they're white and male.

The fact is, when it comes to the Supreme Court, there are probably many lawyers and judges and law professors who would do as good or better jobs than the people already on there. There's no one best person for the job, and it's also fairly difficult to predict how justices will rule once confirmed (note that the retiring Souter was nominated by George H.W. Bush and became one of the reliable liberal members of the Court). So there's absolutely nothing wrong with picking a qualified justice who comes from a different ethnic and class background than the rest of the Court for the sake of diversity.

Souter Retires

This may be the greatest non-election week for Democrats since, well, before my political lifetime. First Specter, now Souter.

Of course, Souter is fairly liberal. So this isn't a game changer. But a) it allows the seat to remain liberal for a long time; b) given Stephens' age and Ginsburg's health, Obama has the potential to completely reshape the court, maybe even by 2012; and c) what are Republicans going to do? If they try to block the pick, they will look even more obstructionist than they already do? Ha!

What are the odds Cass Sunstein will be nominated for the seat? 50/50? From Chicago, close to Obama, brilliant. Progressives are rightly uncomfortable with some of his thoughts, but this also creates a moderate rhetoric for him.

Historical Image of the Day

To close our set of Gilded Age Supreme Court judges with awesome facial hair, we have Lucius Quintus Cincinnatus Lamar II of Mississippi. Appointed by Grover Cleveland in 1888.

You might think that the nation would have barred leading secessionists from serving on the nation's highest court, but you'd be wrong. Lamar was a member of Mississippi's secessionist committee in 1860 and then became a Confederate officer. Despite this, he was back in the House of Representatives in 1873. When Grover Cleveland became president in 1884, he named Lamar Secretary of the Interior and then promoted to the Court near the end of his first term. He served until 1893 when he died, having left no discernible mark upon the Court.

Historical Image of the Day

Supreme Court David Davis and his beard. Evidently the Waite court favored this sort of beard, as Chief Justice Morrison Waite had virtually the precise style.

Appointed by Lincoln in 1862, he served until 1877. He resigned that year and served a term as Senator from Illinois, from 1877 to 1883.

Historical Image of the Day

Chief Justice Morrison Waite and his fine beard.

Appointed by Ulysses Grant in 1874, Waite served for 14 years. Like many of Grant's Supreme Court nominees, he worked to roll back racial protections for African-Americans. This makes me wonder why Grant's supposed belief in racial equality has improved his standing among both historians and progressives. Almost all of his judicial choices were terrible on race and you'd think that in an age when we pay so much attention to judges generally and the Supreme Court especially, people would take this into account. Those who promote Grant's presidency point to the Civil Rights Act of 1875 which he signed. But his own judges, including Waite, overturned the law in the Civil Rights Cases (1883). So I have yet to see a compelling case for the argument that Grant was a good president on racial issues.

Historical Image of the Day

Oliver Wendell Holmes. One of the most important judges in the history of the Supreme Court and a member of the mustache hall of fame, if such a thing existed.

Historical Image of the Day

Supreme Court justice George Shiras and his impressive mutton chops.

Out of Pennsylvania, he was appointed by Benjamin Harrison in 1892 and served until 1903. His impact on the court seems pretty unnotable except for casting the deciding vote in Pollock v. Farmers' Loan & Trust Company (1895) which ruled the income tax unconstitutional.

Historical Image of the Day

Supreme Court Justice Stephen Johnson Field.

Field was a justice from 1863-97, the second longest tenure of any associate justice. Although named to the court by Lincoln, Field played an important role in turning the focus of the court away from black rights and toward protecting big business. He dissented in Munn v Illinois, allowing states to regulate railroads within their borders. He opposed the graduated income tax, anti-trust laws, and the Interstate Commerce Commission. He also sided with the majority in Plessy v. Ferguson.

Despite my intense dislike of almost every major decision Field made, he had a fine beard.

Historical Image of the Day

Our series of images of work in American history has concluded. For this week, Kim G suggested a series of beards. Always happy to oblige requests, this week's images will consist of late 19th century Supreme Court justices and their facial hair. 

Justice Howell Jackson of Tennessee. Named to the court by Benjamin Harrison, he served for 2 years before dying of tuberculosis. His most notable vote was to uphold a law providing a federal income tax, but he was in a minority. Eventually the income tax became the 16th Amendment to the Constitution because it was consistently popular but consistently overruled by a conservative Court. 

Elections Have Consequences: Supreme Court Edition

Disturbed about the last few days or not, I'm sure glad Obama won!

Supreme Court Justice Ruth Bader Ginsburg, the only woman currently serving on the nation’s highest court, underwent surgery Thursday for removal of a cancerous tumor from her pancreas. … Ginsburg has served on the court since 1993. She was treated for colon cancer 10 years ago.

Ginsburg’s pancreatic cancer was discovered early, in the course of a routine annual screening, but medical literature says even in this circumstance, a patient’s five-year survival chances range from 10 to 30 percent.

I don't want to trivialize Ginsburg's illness, but of course death on the Supreme Court is always a calculation in national politics. If she does have to leave the Court, thank the higher power of your choice that she will be replaced by someone good.