Tuesday, May 26, 2009

As Conservatives Firmly Dominate The Federal Judiciary, They Say No Non-Conservatives Allowed

President Obama has just made the first nomination to the Supreme Court by a Democratic President in fifteen years.

Even with just two justices on the Supreme Court that were appointed by a Democratic president (Breyer and Ginsburg), the rationale for Republicans to mount a filibuster against Barack Obama's Supreme Court nominee extends back to post election day last November.

Arizona Sen. Jon Kyl, the second-ranking Republican in the U.S. Senate, is quoted on November 7, 2008, that he would filibuster Obama's appointments.

Last December Ceci Connolly, national staff writer for the Washington Post reported that, "Word on the street is that Karl Rove is going to be helping lead the fight against Obama's nominations as part of the Republican Party's strategy.

On Fox News just a couple of Sundays back Mitch McConnell explained why he's open to filibustering President Obama's (then unnamed) Supreme Court nominee. When the Bush administration was making nominations to a Republican controlled Senate before 2007, McConnell vehemently opposed any such filibuster - by Democrats.

The ranking Republican member of the Senate Judiciary Committee, Jeff Sessions, suggested little more than a week ago the "automatic powerful deference" given to the President's Supreme Court nominees in the past is just that - something of the past. As justification Sen. Sessions claimed Democrats filibustered Bush Supreme Court nominees, preventing a him from appointing "conservative judges," therefore Republican Senators are now obligated to filibuster Obama's judicial nominees to restore judicial balance. Sen. Sessions doesn't have that quite right; While Democrats threatened to vote against cloture on ten of Bush's federal lower court nominees during his first term in 2003 and 2004, they did not filibuster Pres. Bush's Supreme Court nominees.

Sen. Kyl, again just a week ago refused to rule out a filibuster or other stall tactics to to delay or derail confirmation of President Barack Obama Supreme Court Justice nominee. Kyl spoke for many conservative Republicans when, in 2005, Republicans threatened the filibuster "nuclear option," against Senate Democrats who were being urged by their constituents to filibuster President Bush's "conservative activist" nominees to the lower federal and supreme courts.
SEN. JOHN KYL on PBS News Hour April 25, 2005: "For 214 years it has been the tradition of the Senate to approve judicial nominees by a majority vote. Many of our judges and, for example, Clarence Thomas, people might recall, was approved by either fifty-one or fifty-two votes as I recall. It has never been the rule that a candidate for judgeship that had majority support was denied the ability to be confirmed once before the Senate. It has never happened before. So we're not changing the rules in the middle of the game. We're restoring the 214-year tradition of the Senate because in the last two years Democrats have begun to use this filibuster."
That Republican threat to eliminate the filibuster rule, of course, was in 2005 after Republicans increased their control of congress in the 2004 election. The threat worked - Senate Democrats did not filibuster Pres. Bushes judicial nominees and no longer voted against cloture, thus allowing Pres. Bush and Senate Republicans to confirm extreme right-wing lower court and supreme court judges, effectively eliminating Democrats from the "advise and consent" process.

In December 2008 the Washington Post reported that George W. Bush has been enormously successful at placing his picks on federal appeals courts and that has led to Republican domination of most of the nation's judicial circuits. The numbers that demonstrate just how solidly Bush has packed the courts with Republican judges are pretty compelling:
After Bush's eight years in office, Republican-appointed majorities firmly control the outcomes in 10 of these courts, compared with seven after President Bill Clinton's tenure. They also now share equal representation with Democratic appointees on two additional courts.
That's out of a total of 13 judicial circuits (12 regular regional circuits plus the Court of Appeals for the Federal Circuit, which hears special national cases). In 2001, the political breakdown of the nation's appeals court was about even, with 77 judges appointed by Democrats, 74 by Republicans and 27 vacancies. The current breakdown is 66 Democrats, 102 Republicans and 11 vacancies.

In his appointments of John Roberts as Chief Justice and Samuel Alito, Jr. to replace the pivotal Sandra O'Connor, President G. W. Bush succeeded in appointing two solid conservatives to the Court, insuring a more likely conservative result in 5-4 court decisions. The pivotal position relinquished by O'Connor passed to Anthony Kennedy, who joined the conservative bloc of justices Roberts, Scalia, Thomas, and Alito 15 out of 20 occasions in the 2006 and 2007 court sessions. The more liberal bloc of justices Stevens, Ginsburg, Souter, and Breyer have been in the minority on 3 out of 4 "split decisions" made by the court since Justice O'Connor's departure. (Click on the Justices link if you wish to see voting data from the Court's 2007-08 term.)

In an article for the New Yorker, legal analyst and former assistant US Attorney Jeffrey Toobin describes Bush appointee Chief Justice John Roberts as “the Supreme Court’s stealth [conservative] hard-liner.” According to Toobin, despite Roberts’ disarming charm, and his insistence he is a strict constructionist with moderate views, [as he described himself in his Senate confirmation testimony,] his actions on the bench have been those of a “doctrinaire conservative.” “Doctrinaire conservative” is just another name for an "activist judge" with conservative ideology.

Toobin writes that although Roberts calls himself as a strict constructionist and a “judicial restraint” conservative, “according to Harvard’s Laurence Tribe, ‘The Chief Justice talks the talk of moderation while walking the walk of extreme conservatism.’”

After four years as Chief Justice, Roberts’s record is not that of a “judicial restraint” "strict constructionist" conservative with moderate views, but the kind of "authoritarian conservative" that almost always defers to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.”

According to Toobin, Roberts has recently led 5-4 majorities on the Court in far-reaching decisions considered as setbacks for anti-trust and anti-discrimination lawsuits. In a recent opinion on school desegregation efforts Roberts argued that if government-mandated segregation is unconstitutional, then government-mandated integration must be unconstitutional as well — an opinion that “drew an incredulous dissent from Stevens.” (Are activist conservatives advocating a move back to "whites only" signs on drinking fountains under the "separate but equal" doctrine cherished by southern "states rights" advocates? Gov. Perry?)

"The Supreme Court on Tuesday made it easier for the police and prosecutors to question suspects, lifting some restrictions on when defendants can be interrogated without their lawyers present," David Stout reports in the New York Times:
In a 5-to-4 ruling, the court overturned its 1986 opinion in a Michigan case, which forbade the police from interrogating a defendant once he invoked his right to counsel at an arraignment or a similar proceeding.

That 1986 ruling has not only proved “unworkable,” Justice Antonin Scalia wrote for the majority, but its “marginal benefits are dwarfed by its substantial costs” in that some guilty defendants go free. Justice Scalia was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.

However, "In an angry dissent, Justice John Paul Stevens, who wrote the 1986 decision, said that contrary to the majority’s assertion, that decision protected 'a fundamental right that the court now dishonors.'”

Back when Democrats were expressing skepticism about President Bush's nomination of Samuel Alito and John Roberts to the supreme court, Republicans, who then controlled both houses of congress as well as the White House, chastised Democrats for "pre-judging" the nomination.

That doesn't appear to have been a principled stance given Republicans have been "pre-judging" Obama's nominee since last November.

And the media itself is rushing to join Republicans in "pre-judging"President Obama's nomination of Sonia Sotomayor to the Supreme Court as too liberal.

Sen. Kay Bailey Hutchison, while in Lubbock today, said her initial response to President Obama's appointee was tepid at best. The senator was among 28 Republicans who voted against Judge Sotomayor's appointment to the appeals court in 1998. Hutchison says she voted against Judge Sotomayor a decade ago because of her "judicial activism" as a district court judge.

When you hear Republicans complain about how the federal and supreme courts are "stacked" with activist liberal judges legislating from the bench, just remind them that:
Continue Reading:

Organizing for America has posted this special message video from the President on its website.

Question: What is the difference between conservative "judicial activism" as practiced by Supreme Court Chief Justice John Roberts and Justice Scalia and liberal "judicial activism?" Answer: Conservative "judicial activists" believe that the votes of the many outweigh the rights of the few or the one, whereas liberal "judicial activists" believe that the the rights of the few or the one outweigh votes of the many.

No comments:

Post a Comment