Judicial

Some of the nation's top political commentators, legislators and intellectuals offer their insight into the biggest news story today. . .

Today's question:

Is Solicitor General Elena Kagan the right choice for the Supreme Court? Why or Why not?

The catastrophe at Upper Big Branch that killed 29 miners evokes the disaster at Westray that killed 26 almost exactly 18 years earlier.
 
As at Upper Big Branch, a coal dust and methane explosion ripped through the Westray mine in Plymouth, Nova Scotia early in the morning. As at Upper Big Branch, rescuers discovered bodies, but toxic air forced them out before they could account for all missing miners. After five days, dangerous conditions permanently ended the search for the missing 11 at Westray. They’re entombed in the hazardous workplace that took their lives, a mine like Upper Big Branch that had been cited for dust and methane violations.
 
Nova Scotia erected a memorial over the spot where the bodies of the 11 are believed to be, with plaques bearing the names of the miners killed, like tombstones on stanchions. West Virginia no doubt will commemorate those killed at Massey Energy’s Upper Big Branch.
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Congress just passed health care reform for all Americans. This law will now be interpreted by the Executive Branch and the courts for generations.  Even a 2700-page bill is not self-explanatory. There will be regulations. And wherever there is ambiguity, there may be lawsuits.

One way courts interpret new laws is through legislative history. Legislative history includes the debates and comments by the members of Congress who voted on the bill, as recorded by the Congressional Record.

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When the Supreme Court recesses on Justice Stevens’ final day on the bench, it will mark the end of an extraordinary judicial career spanning four decades, including 35 years on our highest court.

The last Justice from “the Greatest Generation,” John Paul Stevens first answered the call to service when he joined the Navy during World War II.  Our nation called on him again years later, and he returned to public service as an appellate judge before accepting President Ford’s nomination to serve on the Supreme Court.  He has since become one of the longest serving Justices on the Court.  His confirmation was the first of a dozen Supreme Court nominations I have considered in my years in the Senate.  As a young, freshman senator, it was a privilege to support his confirmation in 1975.

Justice Stevens’ unique and enduring perspective is irreplaceable; his stalwart adherence to the rule of law is unparalleled.  The federal judiciary, and indeed the entire nation, will miss his principled jurisprudence.  While it is with a heavy heart, I wish him the best in his retirement.

As we move forward with preparations for the second Supreme Court nomination of this Congress, I am reminded of the Vermont marble inscribed above the entrance of the Supreme Court which pledges “Equal Justice Under Law.”  I hope that Senators on both sides of the aisle will make this process a thoughtful and civil discourse.  I expect President Obama to continue his practice of consulting with members on both sides of the aisle as he considers this important nomination.  The decisions of the Supreme Court are often made by only five individuals, but they impact the daily lives of each and every American.  All Senators should strive to fulfill their constitutional duty of advise and consent, and give fair and thorough consideration to Justice Stevens’ successor.

As the foreclosure crisis moves from subprime to prime borrowers, the lives of some of the poorest of families in the country – rent-paying tenants in low-income communities – continue to be ravaged by the crisis.

Too often, when landlords find themselves in foreclosure, their tenants are forced onto the street with little or no notice. Tenants, as distinct from homeowners, comprise 40% of the families facing eviction due to foreclosure, according to some estimates.

Despite a federal law enacted last year that included provisions to increase tenants’ protection from wrongful evictions, real estate development companies and lenders continue to harass and illegally pressure tenants to move out. More than ever before, low-income tenants need the help of an advocate in the courtroom and at the negotiating table to ensure that their rights to remain in their homes are protected. In a complex legal environment, and without the help of an attorney, a tenant threatened with eviction is unlikely to know what his or her rights are, let alone how to pursue them. 

Today, President Obama nominated Goodwin Liu for the United States Court of Appeals for the Ninth Circuit.  Mr. Liu is currently Associate Dean and Professor at the University of California Berkeley School of Law. Judicial diversity has been a top concern of the Congressional Asian Pacific American Caucus (CAPAC), and as such has endorsed Asian American, Pacific Islander, and other diverse candidates for the bench, including Professor Liu.  Currently, there are no Asian Americans and Pacific Islanders serving as a federal appellate court judge.  

"CAPAC is pleased with the President's nomination of Goodwin Liu to the Ninth Circuit Court of Appeals. As an acclaimed education and constitutional law scholar, CAPAC members are proud to support his nomination," said Rep. Mike Honda (CA-15), chair of CAPAC. "Goodwin is a personal friend and leader in my home state of California, and I have worked with him for many years, particularly in ensuring access and equity in our education system. Not only has he been a leader in the Asian American and Pacific Islander community, he has proven himself in the legal profession as well, with support from renowned legal minds from a diversity of ideological backgrounds."

In a sweeping decision, five Supreme Court justices have seen fit to overturn decades of established legislation and judicial precedents. In Citizens United v. FEC, the Court decided against Congress’ long deliberated record banning corporate campaign spending. The Court tore apart carefully-crafted laws, dating as far back as the 1947 Taft-Hartley Act, ruling that corporations should be treated as persons under the First Amendment, entitled to make unlimited expenditures supporting or attacking local, state and federal candidates.

This judicial wrecking crew appears far from finished. The same justices have their sights on the 1907 Tillman Act prohibiting direct corporate contributions to candidates. Justice Clarence Thomas recently told the New York Times: “Go back and read why Tillman introduced that legislation. Tillman was from South Carolina, and as I hear the story, he was concerned that the corporations, Republican corporations, were favorable toward blacks and he felt that there was a need to regulate them.”

Many members of Congress are justifiably alarmed that there is a new legislature in town opening the floodgates of unlimited corporate political spending. They are alarmed that the ruling will dramatically increase the cost of campaigns and the time spent fundraising. More importantly, they are alarmed about the damage this ruling will have on the legislative process. Corporate lobbyists may now negotiate with lawmakers wielding that big club of threats of massive campaign spending.

Some of the nation's top political commentators, legislators and intellectuals offer their insight into the biggest question burning up the blogosphere today.

Today's question:

Democrats say they are committed to pass legislation in the wake of the Supreme Court's recent decision on campaign finance reform.

Will they be able to pass a bill before the midterm elections?

( Read answers after the jump.)
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With Thursday’s overreaching and irresponsible decision in Citizens United v. F.E.C., easily the worst decision we have seen from the Court since Bush v. Gore in 2000, five justices on the Supreme Court have eviscerated a century of campaign finance reforms, given the green light to blatant corporate corruption of our electoral processes, and endangered the very functioning of our republic.

At a time when more and more Americans worry that their voices are being drowned out in government by the power of well-funded and well-entrenched special interests, the five-member majority on the Court has willfully decided to empower the special interests even further. By bizarrely conflating corporate spending in elections with the fundamental right of free speech for individuals, they have even gone so far as to bestow constitutional protections intended for living, breathing people upon these inanimate interests – a stance which, as writer Dahlia Lithwick has noted, even former Chief Justice Rehnquist believed “confuse[s] metaphor with reality.”

Critics of yesterday’s decision say the sky of American democracy is falling.  Supporters—including myself—say it’s a great day for the republic and a vindication of the freedom of speech.  How can this be?  Are nonprofit think tanks and advocacy groups like my own Cato Institute, the ACLU, the NRA, and many other odd bedfellows who supported Citizens United all in the pockets of Wall Street, Big Oil, insurance companies, and others that President Obama assails as corrupting our politics?  Leaving aside the issue of why the politician who got more of his campaign funding from Goldman Sachs than any other source would be going after the very industries that most support him, the asymmetry in this debate rests on the myth that money is an evil in the political system, and that therefore the American people want so-called campaign finance reform to “clean up” government.

Money is no more an evil in politics than it is in life generally.  Some people may not like mud-slinging attack ads, but some people also don’t like SUVs, the Super Bowl, the Jay Leno Show, and many other things that people spend money on—including donations to Cato, the ACLU, the NRA, etc.  The problem with money in politics isn’t the money, but rather the politics.  So long as the government is powerful enough to dole out tax breaks, subsidies, stimulus funds, regulations, earmarks, and a whole host of other goodies (and baddies), those that stand to benefit (and lose) will spend money on the political process.  The way to get rid of this behavior and spending—which is constitutionally protected in a whole host of ways: freedom of speech, freedom of association, the right to petition the government for redress of grievances, etc.—is to reduce the government’s power to affect so many people’s lives and transform economic incentives for businesses big and small.  Reduce the size of government and K Street will melt away.