While progressives everywhere are basking in the knowledge that liberal Democrats now control two of the three estates of the federal government, it is worth remembering that despite the voters' mandate, the Right still controls (barely, by a one-vote margin) the third: namely, the Supreme Court. And the right-wing Federalist Society dogmatists now sitting on the court are not only capable, but extremely likely, to wreak havoc with that mandate.

We received an unpleasant reminder of that reality this week:

The nation's need for Navy sailors to practice using sonar to guard against enemy submarines "plainly outweighs" any legal requirement to protect orcas and other marine mammals, the U.S. Supreme Court ruled Wednesday, turning back environmentalists' efforts to restrict sonar use during naval training exercises.

Quoting a 1907 statement by President Theodore Roosevelt -- "the only way in which a navy can ever be made efficient is by practice at sea" -- the high court's five-member conservative majority said lower courts had improperly restricted naval exercises off Southern California.

But the justices in the majority stopped short of endorsing a Bush administration attempt to justify using a controversial White House waiver to justify the exercises.

When the lower court's ruling was announced earlier this year, it appeared to be a significant win for environmentalists, not to mention the cetaceans affected by these tests. It was also a win for the rule of law, considering the Bush administration's egregious lawbreaking in attempting to foist these tests on us.

But the court took care not to address that issue:

Continue reading »

I forgot to post this the other day, but I think it's important. Jon "nuclear option" Kyl shot off his mouth the other day to the Federalist Society and threatened to block Supreme Court nominees of Barack Obama only a few days after the election.

Jon Kyl, the second-ranking Republican in the U.S. Senate, warned president-elect Barack Obama that he would filibuster U.S. Supreme Court appointments if those nominees were too liberal.

Kyl, Arizona's junior senator, expects Obama to appoint judges in the mold of U.S Supreme Court Justices Ruth Bader Ginsburg, David Souter and Stephen Breyer. Those justices take a liberal view on cases related to social, law and order and business issues, Kyl said.

"He believes in justices that have empathy," said Kyl, speaking at a Federalist Society meeting in Phoenix. The attorneys group promotes conservative legal principles.

Kyl said if Obama goes with empathetic judges who do not base their decisions on the rule of law and legal precedents but instead the factors in each case, he would try to block those picks via filibuster.

Steve says: "Think about that. The second highest ranking Republican in the Senate, just a few days after the election, is already talking about blocking Supreme Court nominations that haven't been named, in response to Supreme Court vacancies that don't exist."

And Howie Klein ads:

...according to CNN exit polls, those who claimed that the Supreme Court was a factor in their decision in the presidential election, broke for Obama 53-45% and voters who called future Supreme Court appointments the most important factor went for Obama even more strongly-- 57 to 41%.

The more Republicans talk, the more irrelevant they become.

Today’s the first day of the Supreme Court’s new term, and President Bush is using the occasion to appear before the Cincinnati Federalist Society. He’s being joined by a coterie of right-wing judicial activists who helped him push hundreds of nominations through the Senate. Among them will be Wendy Long, whose Judicial Confirmation Network just launched a nasty smear campaign against Obama.

Bush is taking a victory lap, and you almost can’t blame him. Of all the terrible things that he set out to do, shifting the federal courts far to the right is the only thing he’s achieved. A full one of every three federal judges were appointed by Bush, including Chief Justice Roberts and Justice Alito on the Supreme Court, and they have steadily chipped away at our rights.

But Bush couldn’t quite close the deal – the right-wing bloc on the Supreme Court is still one vote short of an unstoppable majority. Justice Stevens – 88 years young and the most progressive member of the Supreme Court – stubbornly refused to retire. Justices Ginsburg and Souter, who have reportedly eyed retirement, also weathered the Bush reign, presumably in hopes of a better political environment next year.

What that means is McCain, if elected, stands to achieve Bush’s goal of a right-wing court. There’s no uncertainty here – McCain has pledged to nominate “clones of Roberts and Alito”:

So that’s where we’re at. The next 40 years of the Supreme Court are on the ballot.

Kathryn Kolbert is President of People For the American Way

Just when you thought it couldn't get any worse, it does.

Couric: What other Supreme Court decisions do you disagree with?

Palin: Well, let's see. There's, of course in the great history of America there have been rulings, that's never going to be absolute consensus by every American. And there are those issues, again, like Roe v. Wade, where I believe are best held on a state level and addressed there. So you know, going through the history of America, there would be others but …

Couric: Can you think of any?

Palin: Well, I could think of … any again, that could be best dealt with on a more local level. Maybe I would take issue with. But, you know, as mayor, and then as governor and even as a vice president, if I'm so privileged to serve, wouldn't be in a position of changing those things but in supporting the law of the land as it reads today. <!-- sphereit end -->

To be fair, it's probably easier to come up with a case that you agree with, but that's what skilled and smart politicians do: they re-frame the question the way they want to answer it. I'm just afraid that if the question were phrased the other way around, she still would have been stumped. This is what people mean when they say she is unqualified to be (Vice-) President. Just contrast her answer with Biden's and that becomes crystal clear.  

(h/t Heather)

 McCain's Supreme Court position, in pop-ups

Joe Biden's ability to out straight talk the faux-maverick is definitely an asset for him. He sees what's important right now and isn't afraid to put it plainly.

Biden said U.S. President George W. Bush’s two conservative appointees — Chief Justice John Roberts and Associate Justice Samuel Alito — have pushed the nation’s highest court far to the right.

This, Biden charged, has threatened civil liberties and set back efforts to desegregate schools and obtain equal pay for women.

“Other than ending the war in Iraq, the single most significant thing that Barack Obama can do — and I hope I’ll be able to he help him — will be to determine who the next members of the Supreme Court are going to be.”

... During the next four years, Biden said, citing life expectancy estimates, there may be as many as three vacancies on the nine-member court.

“It’s not merely the woman’s right to choose (to have an abortion) which is at stake,” Biden told a mostly female crowd of several hundred people.

“It’s whether or not you are going to be able to have a fair shot at a fair wage,” Biden said. “It’s whether or not you are going to able to demand that you are treated equally in every aspect of your life.”

Those PUMAs who have said they'll support McCain would do well to reflect on Biden's words and McCains.

When National Review’s Ramesh Ponnuru asked McCain whether he admires any Supreme Court justice in particular, he answered “of course, Antonin Scalia…I admire how articulate he is, but I also from everything I’ve seen admire Roberts as well.”

The Right Wing has a mantra about Supreme Court nominations: No New Souters. They're talking about Justice David Souter, who was nominated by the first President Bush but left conservatives feeling burned. They thought he would be another Scalia or Thomas but were apoplectic when he failed to go along with the program - in fact, he often stands up for the rights of individuals against the powerful business and government interests favored by the Right.

Progressives, on the other hand, have had the unfortunate experience of watching this play out in reverse. Senator Joe Lieberman arrived on the national stage as the running mate of Al Gore, whose campaign stressed support of the people over the powerful. But he has gone down a reactionary path in the years since, and seems destined to become the next Zell Miller.

We can't afford to have another VP nominee who would undermine the progressive movement from within. When we talk about Barack Obama and his coming decision, we ought to have a mantra of our own: No New Liebermans. Instead, Obama must choose a running mate who shares his - and our - progressive values and is firmly committed to pursuing them.

To help get the message across, People For the American Way has launched a petition that calls on Obama to choose a progressive. You can sign the petition and enter your preferred VP nominee here. Next week we will present the petitions and top three VP vote-getters directly to the Obama campaign. Now is the time for progressives to make their voices heard!

(By Kathryn Kolbert, President of the PFAW)

Here's Obama's response to the Supreme Court decision which struck down the death penalty for the rape of a child.

Democrat Barack Obama says he disagrees with the Supreme Court's decision outlawing executions of people convicted of raping a child.

Obama told reporters Wednesday that he thinks the rape of a child, ages six or eight, is a heinous crime. He said if a state makes a decision, then the death penalty is potentially applicable.

Digby says:

I get why he said it. Everybody's petrified of being "gotcha'd" like Dukakis on the rape question. But this one isn't hard. All he had to say was that as a father he would certainly want to kill anyone who did such a heinous thing with his bare hands, but as a public servant and legal scholar he knows that the death penalty should be reserved for people who kill...read on

It seems to me that he's running much farther to the right then he has to. I know he doesn't want to be portrayed as "soft on crime," but he could have approached it in any number of ways other than disagreeing with a wingnut Supreme Court that voted against this.

Lindsey Bernstein says:

If we're going to have a death penalty, and if the death penalty is reserved for the most heinous crimes, then rape should be punishable by death. Does Obama think that the rapists who sodomized prisoners at Abu Ghraib with chemical lights should be put to death? Given his views on child rape, I should hope so. Consistency requires him to call for the executions of the American soldiers who committed these crimes. If he's not serious about putting all rapists to death, he is trivializing rape by calling for the death penalty only for those who rape children.

If you're going to support the death penalty for child rape alone, you need to explain why child rapes are so morally special compared to the rapes of adult human beings.

The only morally consistent "law and order" position for Obama would be to assert that rape should be punishable by death, across the board...read on

AP via YahooNews: 

The Supreme Court says Americans have a right to own guns for self-defense and hunting, the justices' first major pronouncement on gun rights in U.S. history.

The court's 5-4 ruling strikes down the District of Columbia's 32-year-old ban on handguns as incompatible with gun rights under the Second Amendment. The decision goes further than even the Bush administration wanted, but probably leaves most firearms laws intact.[..]

The basic issue for the justices was whether the amendment protects an individual's right to own guns no matter what, or whether that right is somehow tied to service in a state militia.

Justice Antonin Scalia, writing for four colleagues, (.pdf) said the Constitution does not permit "the absolute prohibition of handguns held and used for self-defense in the home."

In dissent, Justice John Paul Stevens wrote that the majority "would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons."

He said such evidence "is nowhere to be found."

...because they ruled against the Bush administration for the third time and said that Gitmo detainees do have habeas corpus privileges. Just remind them about the Bush v Gore decision.

Download | play Download | play

The decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath.

Nuff said.

Download | play Download | play (h/t Heather)

This is what aggravates me so much about the Sunday "news" shows. There is so much lying and muddying of the waters so that the average American--who doesn't have the time to read judicial decisions--doesn't understand that the Supreme Court basically told the Bush administration that they are operating outside of the established laws of the country for the third time in the way that they are prosecuting their War on Terror™. Former Senator and indolent presidential contender Fred Thompson appeared on This Week with George Stephanopoulos to provide his "Law & Order"-honed gravitas to the false assertion (and GOP platform) that the recent Supreme Court decision saying that Guantanamo detainees have a right to habeas corpus is somehow destroying this country.

After years of trying to make the unitary executive a more powerful branch of the government, the GOP seems upset that the Court would remind them that new laws enacted would be subject to review by the judicial branch...that whole Constitution thing being more of a suggestion than a system of government, apparently. Thompson claims that our laws are more liberal as they ever have been, which is odd, considering that the ones they sought to strike have been in place since the founding of the country. In fact, referencing Marbury v. Madison (1803), Justice Kennedy wrote: *

(T)he writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.

But I guess it's too much to ask for a Republican to actually respect the Constitution.

Transcripts below the fold

*Corrected to properly attribute quote 

Continue reading »

(John Amato-Let's welcome once again---Kathryn Kolbert---President of the People for the American Way)

On May 29, 2007 the Supreme Court issued its infamous 5-4 ruling in Ledbetter v. Goodyear. The ruling, authored by Bush nominee Justice Samuel Alito (who replaced Sandra Day O'Connor), didn't only harm Lilly Ledbetter. It made it much easier for any business to engage in pay discrimination against its employees, with complete impunity.

Lilly Ledbetter faced years of pay discrimination, but she only learned about it late in her career. Thanks to an anonymous tip, she learned she was being paid far less than her men doing the same job. She sued and won back pay. But Goodyear didn't give up and was finally rewarded by the Supreme Court, which ruled in an opinion by Alito that workers must sue within 180 days of the initial decision by an employer to pay a discriminatory wage - even if they don't learn of it until later and their pay is still lower as a result. That's ludicrous.

(We sat down with Lilly last year, and she told us about her case and the discrimination she faced - watch the videos here).

Democrats attempted to undo the damage by passing new legislation, but Senate Republicans blocked it last month. McCain opposed it and has been loudly singing the praises of Alito and his fellow right-wing justices. He evidently thinks pay discrimination is a winning issue.

Here's McCain at a voter forum earlier in the month. He tried to put a 14-yr-old girl on the spot, but she'll have the last laugh when his smug endorsement of the ruling comes back to haunt him:

On the one year anniversary of the decision, it's painfully clear what's at stake. McCain says he wants more Alitos on the court, but for Lilly Ledbetter and other Americans who rely on the court for justice in the face of powerful interests, we already have one Alito too many.

I've been all over the Indiana Voter suppression ruling by the Supreme Court ever since they started hearing the case. I call it the Preemptive doctrine on Voting Rights.

The Great Voter purge shall begin. The Indiana Voter ID case is the ultimate Republican tool to purge the rolls of voters that overwhelmingly will vote for a Democratic nominee. Indiana anti-voter Law produces first casualties: Indiana Nuns in their 80’s and 90’s I haven't watched Moyers yet because I need some time off this weekend like all of us do, but TP posted this clip:

Commenting on the decision on last night’s “Bill Moyers Journal,” legal scholar Jeffery Toobin explained that the “real agenda” behind voter ID laws is “to help Republicans”:

I thought it was a bad decision, but a predictable one because it was a very clear attempt by Republicans to stop Democrats from voting. I don’t think there’s any doubt about what the motivation was of that law. … The real agenda was to help Republican.

That says it all. I'm working with the ACLU to map out a strategy on this ruling and will keep you informed.

Continue reading »

Joe Lieberman was squiring yesterday on CNN when Wolf Blitzer called him out on his support for the types of judges his good pal and the man that he's supporting to be president, John McCain would choose. That's a very big issue with all of us and Lieberman knows it all too well since he voted against Alito in the first place. A judge that McCain loves by the way. Blitzer played the video of his negative opinion on the newest conservative activist judge which caused Joe to weave around the issue. He says he'd have to wait and see who McCain nominates. What a joke. McCain has promised more Alito's so is he saying that McCain will screw his conservative base? I think not. (transcript via CNN)

LIEBERMAN: I am left with profound concerns that Judge Alito would diminish the Supreme Court's role as the ultimate guarantor of individual liberty in our country.

(END VIDEO CLIP)

BLITZER: All right. So looking ahead, as you know, the next president could name two, maybe three Supreme Court justices, could have an impact for 30 years, maybe longer.

Are you confident in the justices that Senator McCain would nominate? Or would you be more confident in the kinds of judges that Senator Obama might nominate?

LIEBERMAN: Well, I guess I'd have to wait and see who they nominated. But...

BLITZER: Because this is a big issue for a lot of voters out there.

LIEBERMAN: Look, it's a big issue for me. I'm a lawyer. I'm a former attorney general. Let me tell you what I think about Senator McCain.

The two Supreme Court justices that were nominated after that bipartisan agreement were Roberts and Alito. I voted for Roberts. I thought that he was extraordinarily able and would be a man of independent judgmen

Holy Joe just loves Roberts. Wonderful, then he must love Alito too. He's a total sell out to the Republican party. Lieberman should just start protesting with James Dobson against stem cell research. Unfortunately---Wolf didn't ask the correct follow up question after Joe tried to get "his bearings" on the question because McCain just gave a big "Wingnut judge" speech to try and attract the angry right wing conservative activist base.

McCain reminded the group that he had supported the nomination even of very conservative judges such as Pryor and Janice Rogers Brown. He lavished praise on Chief Justice John Roberts and Alito who, he said, “were serving with such distinction on our Supreme Court.”

Blitzer only had to ask Lieberman to comment on John's recent pitch and say that McCain was promising to nominate another Alito so there is no "let's wait and see." He promised to put another extremist on the bench, right Joe? What could he have said to that? 

(I'd like to welcome Kathryn Kolbert from PFAW to the pages of C&L. (Kathryn has been recognized repeatedly by The National Law Journal as one of the "100 Most Influential Lawyers in America) She will have a steady column here on a regular basis to share with us her expertise on all matters relating to the courts. )

Sen. John McCain delivered a speech at Wake Forest University today on judicial nominations. His basic message: I love George Bush’s judicial nominees – keep ‘em coming. He picked up where Bush is about to leave off, and read from the same script written by Sen. Sam Brownback, Family Research Council president Tony Perkins, and Pat Robertson’s lawyer Jay Sekulow.

While McCain mostly pandered to the far right, he also threw a bone to moderates by playing up his involvement in the so-called Gang of 14. But let’s be honest, the “Gang” may have prevented Bill Frist from nuking the Senate, but it also put three of Bush’s very worst nominees – Bill Pryor, Janice Rogers Brown, and Priscilla Owen – on the federal courts for life.

That’s consistent with McCain’s larger record on judges. He has voted to confirm every one of Bush’s controversial appellate court nominees, no matter how extreme and ideological. Back in 1987, when President Reagan nominated Robert Bork, McCain supported him too.

Here was McCain – regurgitating Bush’s favorite talking point – at a debate last year: "One of our greatest problems in America today is justices that legislate from the bench, activist judges.” “I'm proud that we have Justice Alito and Roberts on the United States Supreme Court," he continued.

But Roberts and Alito, and their fellow right-wing justices Scalia and Thomas, are “legislating from the bench.” In just the last two years they have joined together to:

· make it much harder for victims of pay discrimination to get justice

· deny free speech protections to government employee whistleblowers

· make it harder for taxpayers to challenge federal spending that violates the constitutional separation of church and state

· uphold a ban on a particular abortion procedure even though the law has no exception to protect a woman's health

· undermine school officials' efforts to promote racial diversity in their schools

· undermine the Endangered Species Act

and so much more. The bottom line is that America just can’t afford another right-wing Bush justice on the Supreme Court

Kathryn Kolbert is president of People For the American Way.

Jon Stewart exposes a side of Supreme Court Justice Antonin Scalia the public has never seen before.

Download | play Download | play

"While Scalia's ultra-conservative opinons might be controversial, the man himself is a tall glass of awesome."

BONUS: Take the Scalia Quick Quiz