Nel's New Day

March 23, 2017

Deny Gorsuch for Supreme Court Justice

The Senate hearings for Neil Gorsuch ended today, and Republicans are already congratulating themselves for getting such a far-right justice after refusing to even speak to Merrick Garland, President Obama’s nominee almost an entire year before the end of his second term. “Unreasonable” and “obstructionist” are two popular terms from the conservatives who completely ignored Garland for almost a year while they claimed that Supreme Court justice decisions should never be considered during a campaign season. Yet the United States is in the midst of a campaign season: Dictator Donald Trump (DTT) declared his 2020 candidacy on the day of his inauguration, and he’s already holding rallies funded by his campaign donations.

Even worse, the evidence keeps piling up that DDT was not legitimately elected to his current office following testimony by FBI director James Comey and other reports from intelligence agencies. The strong suggestion of an impeachment for DDT began swirling even before he was inaugurated, and the daily occurrences of his conflicts of interest make the length of his term even more tenuous. Further, DDT’s behavior is make the United States increasingly unstable.

Just 45 percent favor Gorsuch’s nomination’s nomination for the Court, the lowest level of public support for a Supreme Court nominee since Robert Bork (31 percent) and Harriet Miers (44 percent). Even the Fox poll could find only a 49 percent approval for Gorsuch, and approval among women was only 42 percent. The Senate rejected Bork, and Miers withdrew under intense criticism. Gorsuch’s glib charm will almost surely not have the same result for him as Bork and Miers, but he’s no more deserving than they were.

Gorsuch’s philosophy as shown in Chevron is that unelected judges should have far more power to strike down regulations, a belief extremely popular with Republicans. He believes in blocking agencies from writing regulations that implement congressional laws signed by the president as shown by his opposition to a long-standing legal doctrine tried in a case involving Chevron. Even Antonin Scalia supported the importance of regulations that allow “flexibility, and appropriate political participation, in the administrative process.” Gorsuch wrote that liberals are focused on achieving goals, such as marriage equality, through litigation, but like other conservative judges, he supports the use of corporation lawsuits to strike down laws they oppose. The chart below shows that the only current justice farther right than Gorsuch is Clarence Thomas, but his rulings and writings may show that he’s even more right. Justice Thomas voted this week to overturn one of Gorsuch’s rulings.

Republicans are obsessed with replacing Antonin Scalia with an even more far-right justice. They conveniently forgot that they replaced Thurgood Marshall, one of the finest justices in history, with Clarence Thomas, who is severely flawed with conflicts of interest and other issues while he votes as far right as possible. The only “replacement” that Republicans made was choosing another man of color in Thomas.

Gorsuch’s history shows that he attacks women’s equality by putting employers’ preferences ahead of women’s rights, failing to protect women from pregnancy discrimination, eliminating women’s access to health care, and even denying women access to justice. During a discussion in Gorsuch’s law class, he said that employers should ask female applicants if they plan to start a family because women manipulate maternity leave policies at the company’s expense before resigning—a flagrantly illegal action. In the hearings, Gorsuch first denied saying this but then refused to state whether questioning women and not men about plans for adding to the family would violate the law.

In his writings, Gorsuch has argued against the legal principals of Roe v. Wade and disagrees with the right to privacy allowing legalized abortion. Removing that right removes constitutional rights for individuals to make decisions about sex, reproduction, and marriage. Gorsuch tends to bar women from litigating discrimination claims, going so far as to ignore U.S. Supreme Court precedent in his refusal. When he did take a case of sexual harassment, he ruled that it didn’t exist because the manager was also hard on the men—although UPS drivers testified that the manager was worse on the only female on the team.

Gorsuch’s opposition to substantive due process shows that he disagrees with the Supreme Court’s affirmation that a person’s right to liberty also protects their dignity, to life free of interference and to making personal decisions free of discrimination. As an “originalist,” he believes that this right is not in the Constitution although SCOTUS has disagreed with his position. Gorsuch prefers equal protection which denies medical aided death because of his belief in an inalienable right to life. The right to dignity was the basis for Justice Paul Stevens’ dissent to upholding Georgia’s anti-sodomy laws in Bowers v. Hardwick. Stevens maintained that federal judges have the responsibility to protect an individual’s right to decide “how he will live his own life.” Justice Anthony Kennedy used Stevens’ dissent to overturn sodomy laws in Lawrence v. Texas and to declare marriage equality in United States v. Windsor and later in Obergefell v. Hodges. Gorsuch could attempt to overturn these rights as well as Roe v. Wade because he doesn’t believe in “dignity.”

As part of the GOP culture of cruelty, Gorsuch ruled that a truck driver should die rather than leave his rig in sub-zero weather, that a woman recuperating from a bone marrow transplant should risk getting the flu rather than work from home for a short time, and that disabled children don’t deserve an education. He called the botched execution of Clayton Lockett in 2014, leading to a prolonged painful death, an “innocent misadventure” when he ruled that Oklahoma should continue its untested lethal injection protocol. He also wrote two separate opinions against blocking felons from possessing guns.

An examination of Gorsuch’s cruel votes shows that he almost always sides with the “big guys”—corporations and school systems rather than individuals. His strong support for corporations may come from his associates in his personal life. A lawyer at a Washington law firm in the early 2000s, Gorsuch represented Philip Anschutz and his companies. Anschutz successfully lobbied Colorado’s lone Republican senator and the Bush administration to get Gorsuch onto the federal appeals court in 2006. Now a multi-millionaire, Gorsuch is welcome among that wealthy at Anschutz’ ranch, and he is partners in a company with two of Anschutz’ colleagues. They are so close that Gorsuch has built a vacation home with them.

What Gorsuch says in the hearings means very little because GOP-supported candidates show that their answers mean nothing. Asked in his hearing about the right to vote being “a fundamental constitutional right,” Chief Justice John Roberts said, “It is preservative, I think, of all the other rights.” He said he had no issue with upholding the Voting Rights Act that he gutted eight years later. He also said, about having no agenda, “Judges are like umpires. Umpires don’t make the rules, they apply them.” That was before he pushed the court to the right in outlawing school integration, blocking Medicaid expansion, and allowing—not once but twice—unlimited secret corporate spending for political campaigns.

In the hearings, Gorsuch talked about judicial modesty and not being a “super-legislator,” but his rulings show that he has tried to establish law in ruling against employees in cases involving federal race, sex, age, disability and political discrimination and retaliation claims. In a count, it’s corporation 21, humans 2. There’s a very good reason that big special interests are spending millions of dollars in dark money to push his confirmation.

Republicans praise Neil Gorsuch because he writes well and concisely, because he calls himself a textualist or originalist, and because he votes for big business, big donors, and big bosses. He was hand-picked by the far-right Federalist Society and the Heritage Foundation and has close ties to a conservative billionaire. These are all reasons that he should be opposed. It was rumored that some Democrats would vote to confirm him in exchange for a promise from the Republicans to keep the filibuster for Supreme Court justices. The argument that another candidate might be worse than Gorsuch is invalid because he’s on the far-right edge of current Supreme Court justices’ ideology. In addition, the GOP is not known for keeping its promises.

Keeping the filibuster is of no value if Democrats don’t use it. Democrats should live up to the party’s values and not support a Supreme Court justice who is anti-woman, anti-LGBT, anti-worker, anti-voting rights, anti-education rights, anti-civil rights, and anti-dignity. I want Democrats to develop the same “intestinal fortitude” as the far-right House Republicans who refuse to vote for the new health care act even after the president threatens them with losing their next election. I disagree with the views of these GOP representatives, but I want Democrats to stand for their values in the same way that these conservatives are doing.

Gorsuch will probably be a Supreme Court justice, but Democrats should not be complicit in putting him in that position.

March 22, 2017

Neil Gorsuch: SCOTUS Nominee, Unfeeling Fake ‘Originalist’

Filed under: Judiciary — trp2011 @ 9:55 PM
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Neil Gorsuch, nominee for Supreme Court Justice, is “polite”: that seems to be the consensus on both political sides. But that’s where the agreement ends. The farther right a Senator is, the more he likes Gorsuch, whereas moderates (aka Democrats) are painfully aware of how conservative he is—somewhere to the right of Antonin Scalia. During Gorsuch’s hearings in the Judicial Committee, a unanimous Supreme Court ruling showed how bad Gorsuch is. Four progressives and four conservatives agreed to overturn Gorsuch’s ultra-conservative decision from the 10th Court of Appeals.

The case concerns the Individuals with Disabilities Education Act (IDEA), requiring public schools obtaining federal funding to provide a “free appropriate public education” to certain students with disabilities and bring meaningful education to disabled students. In a lawsuit from an autistic student, parents sought tuition reimbursement from a specialized school for children with autism. Gorsuch’s opinion in Thompson R2-J School District v. Luke P. ruled that educational benefits “must merely be ‘more than de minimis,’” Latin meaning “so minor as to merit disregard.” Gorsuch defined IDEA as requiring education with a little more than nothing, which can be a student sitting in a chair until aging out of the system. The eight justices agreed that a school district’ plan for a disabled student be “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” Even if the student cannot achieve these marks, the district must do more than the “little more than nothing” standard that Gorsuch required.

The justice nominee defended himself by saying he was “bound by circuit precedent.” Either he is ignorant or lying: in a 1996 opinion, Gorsuch’s court had already ruled that the “benefit” mandated by the IDEA must be more than de minimus. Gorsuch’s opinion added the word “merely” to the ruling which changed the meaning of the decision.

Far Right Views Demonstrated by Gorsuch:

Limited Disabled Rights: In another case about disabled rights, Gorsuch ruled against Assistant Professor Grace Hwang fired by Kansas State University because they denied her a short leave after she had spent her six months leave recovering from a bone marrow transplant for cancer. Concerned that a flu epidemic would endanger her compromised immune system, she had asked to briefly work at home. Gorsuch ruled against Hwang before any evidence was presented about whether her employer would suffer an undue hardship if she were briefly gone. Instead, Gorsuch ruled her request as unreasonable; he claimed that “showing up” was an essential job function and that the Rehabilitation Act should not “turn employers into safety net providers for those who cannot work.” Hwang had “showed up” for the previous 15 years and was able to telecommute during the epidemic. Hwang died two years after Gorsuch ruled against her.

Support of Voter Suppression: As an admirer of Hans von Spakovsky, Gorsuch shows himself a supporter of voter suppression.  Von Spakovsky, special counsel to Associate Attorney General Brad Slozman in 2005, he managed the process to approve Georgia’s strict voter-ID laws, created, according to state Rep. Sue Burmeister to stop fraud by having fewer black voters. A conservative lawyer on the review team was secretly coached by von Spakovsky to achieve voter suppression in the state. Now von Spakovsky has called Gorsuch “the perfect pick for Trump.” Gorsuch’s role model, Antonin Scalia, said that the Voting Rights Act had led to a “perpetuation of racial entitlement.”

Rejection of Civil Rights: Gorsuch’s supervision of the Civil Rights Division during George W. Bush’s time showed serious politicization and lax enforcement of civil rights laws. Nine U.S. attorneys-general were fired because they didn’t find and prosecute voter fraud, even without evidence, leading to the resignation of AG Alberto Gonzales in 2007. During that time, DOJ cases included defense of the Partial-Birth Abortion Ban Act of 2003, the Defense of Marriage Act, the National Security Agency’s warrantless wiretapping program, and detention of prisoners at Guantanamo.

Support of Bush’s post/11 Policies: In the Justice Department, Gorsuch defended such actions as opposing the rights of Guantanamo Bay prisoners to sue in federal court; blocking the release of photographs showing abused prisoners by U.S. military personnel in Iraq’s Abu Ghraib prison; and supporting “enhanced interrogation” (aka torture).

Less Rights for Prisoners: Gorsuch tends to rule against prison inmates bringing complaints about the conditions of their confinement.

Belief in Strong Executive Powers: His emails show that Gorsuch is in favor of the warrantless surveillance program and the method of bypassing the Detainee Treatment Act’s provision banning torture.

Anti-LGBT Positions: Although Gorsuch has never made a ruling on same-gender marriage, his position as “originalist” is code for anti-LGBTQ people because this community isn’t mentioned in the U.S. Constitution. He did reject a transgender woman’s discrimination claim, filed because her school had denied her access to the women’s restroom.

Majority of Rulings in Favor of Corporation against Employees: Gorsuch has consistently upheld arbitration even in flawed contracts, stating, “I just don’t see … how we might rightly rescue [the plaintiff] from the consequences of his choice.” The point is that people frequently cannot make purchases, get loans, or find employment if they refuse to sign a clause mandating arbitration, a secret resolution with arbitrators hired by the companies being protested and allowing corporations to bypass the judicial system. This forced arbitration eliminates the possibility of class action suits and cannot be appealed. An issue that Gorsuch would hear is whether the National Labor Relations Act can bar class action waivers; he has already opposed this position in his general aversion to agreeing with agencies.

Case of the Frozen Truck Driver: Gorsuch ruled in favor of firing Alphonse Maddin, a truck driver who worked for TransAm. In sub-zero temperatures, the brakes on Maddin’s trailer locked from the cold, and his truck cabin’s heat was broken. He called for the company’s road service at 11:17 pm and waited for two hours while his torso and feet grew numb. He called again, and they told him to wait. Thirty minutes later he unhitched the trailer to find heat and lost his job. Maddin filed a complaint with OSHA because the Surface Transportation Assistance Act prohibits a firing if “the employee has a reasonable apprehension of serious injury to the employee or the public.” TranAm claimed the statute didn’t cover Maddin because his trailer was operable. The majority of the panel ruled for Maddin; Gorsuch ruled against him because it was a “simple” case with no ambiguity. Instead he told him that Maddin had either two choices—take the trailer or wait for help to arrive. There was no sympathy in Gorsuch’s statement when he said that the company “permitted him to sit and remain where he was and wait for help.” Gorsuch then provides an inappropriate analogy concluded with “Good luck.”

Defendant’s Right to Counsel: A defendant wanted to take a 10-year prison term for a guilty plea on a second-degree murder charge, but his counsel refused to represent him if he took a deal. The defendant was convicted at trial of first-degree murder and sentenced to life in prison without parole. The 10th Circuit ruled that the defendant’s rights were violated, but Gorsuch dissented.

Religion over Employees’ Rights: Gorsuch thinks that for-profit corporations are human beings and entitled to religious freedom and free speech. In that way they can deny their workers health care insurance, discriminate against customers, and spend millions to influence elections.Through his beliefs he has denied workers in cases about sexual harassment, workplace safety, and unfair labor practices. Gorsuch was one of the judges who allowed Hobby Lobby to deny contraceptive insurance for workers although it was mandated by law because the law would “burden” the company’s religious rights. Gorsuch finds the “religious freedom” law to be a “super-statute” above all other laws. He disagrees that contraceptive use is “a private matter of individual choice.”

Erasure of Death with Dignity: The nominee also opposes “death with dignity,” allowing terminally ill people the right to take drugs to hasten their deaths, now legal in six states. In 2006, Gorsuch, a Catholic, wrote The Future of Assisted Suicide and Euthanasia in which he opposes these practices, including the death with dignity, an opinion that he holds to this day.

Defunding Planned Parenthood: Gorsuch was in the minority in a Utah case that attempted to defund Planned Parenthood, relying on heavily edited videos from anti-abortion advocate David Daleiden in his attempt to smear Planned Parenthood. Six conservative states failed to defund Planned Parenthood because of the videos, and again Gorsuch was in the minority in supporting the defunding.

These are some perspectives that Gorsuch has evidenced. More about the nominee in the next part.

June 30, 2016

Supreme Court Does a 180 Degree Turn

Supreme Court decisions looked hopeless just six months ago. Many of us feared that women would lose abortion rights, and domestic abusers could stomp around with their guns. Affirmative action, rights of unions, and continued Affordable Care Act provisions seemed impossible. What a difference one person makes! Antonin Scalia’s death in February left only eight justices—for a long time if the GOP has its way—and the tone flipped from devastation to optimism.

The 4-4 ties kept an injunction against the DHS immigration policy but saved public union dues, especially after the court refused to hear the case again. Ties don’t establish the law of the land; they don’t establish precedent. All they do is confirm a lower court ruling. The case about religious objections from Catholic nonprofits refusing insurance coverage for employees’ birth control was returned to a lower court to be fixed. These cases, however, did not destroy a progressive movement; two of these three cases just slowed its progression.

In at least three cases, however, a majority voted in favor of progressives, both times with Justice Anthony Kennedy as the swing vote. The zombie case Fisher v. University of Texas, returning from what should have been an earlier death, upheld the school’s affirmative action plan. Race can continue to be considered to increase college admissions of disadvantaged minorities because, as Kennedy recognized, diversity’s educational benefits cannot be reduced to exact numbers. Now affirmative action can be used if race-neutral alternatives are not enough and if race plays only a small part. The only other Supreme Court case, decided in 2003, warned of a 25-year deadline. This ruling has no such warning. The vote in this case was 4-3 because Justice Elena Kagan recused herself. With Scalia’s vote, it would surely have been a tie.

Women are cheering the 5-3 ruling in Whole Woman’s Health v. Hellerstedt that struck down faux health requirements and “undue burden” for abortions in Texas. Law required clinic doctors to have “admitting privileges” in nearby hospitals and clinics to meet expensive, and unnecessary, standards for “ambulatory surgical centers” (ASC).  “Undue burden” was a standard set up for abortion restrictions in Planned Parenthood v. Casey almost 25 years ago, but the health issue set new law. Justices warned against state anti-abortion laws that claim to be for health reasons but don’t protect women’s health. Again Kennedy, for the first time supporting abortion rights for women, cast the deciding vote. If he had voted against Whole Woman’s Health, Texas could have kept closing all its clinics—now down to about 20 for 5.4 million of reproductive age.

This ruling affects laws in several states throughout the nation; almost half of them lied about health reasons in restricting abortion rights. The high court announced that it will not consider appeals from Mississippi and Wisconsin on laws similar to those in Texas, ending those unconstitutional laws. Alabama dismissed its appeal to keep its anti-abortion law. Laws are on hold in Kansas, Louisiana, Oklahoma, and Tennessee. Other states are still fighting: Michigan providers are deciding whether to challenge the state’s ASC law, and Florida’s admitting privileges law goes into effect on July 1.

In question also are other anti-abortion laws such as waiting periods and mandated useless medical procedures preceding the abortion. In Indiana, a judge blocked the state’s new anti-abortion law. Planned Parenthood will work to block anti-abortion laws in eight states.

In Voisine v. United States, two men from Maine whose guns were removed after misdemeanor convictions in domestic violence argued that “reckless” conduct wasn’t enough for them to lose their guns. The high court disagreed, voting 6-2 that “a reckless domestic assault qualifies as a ‘misdemeanor crime of domestic violence.”

A little-mentioned Supreme Court decision in the media may have a long-reaching impact. A 4-4 tie in Dollar General v. Mississippi Band of Choctaw Indians upholds rulings from the higher Tribal court, the District Court, and the 5th Circuit Court that non-Tribal businesses and individuals can legally face civil suit in Tribal courts. Dollar General had signed a contract with the tribe swearing to uphold its health and welfare, and the manager of a Dollar General on the reservation molested a 13-year-old Tribal boy.

Limited authority of Tribal governments frequently leaves little recourse for victims of sexual attacks. Native American women in the U.S. are twice as likely to suffer sexual assault as other women in the nation, and 80 percent of these assaults are by non-Tribal men who can get off free because tribal courts cannot criminally prosecute non-Tribal members not intimately known to the victims. Federal authorities tend not to pursue these rape cases.  This problem was exacerbated 38 years ago by Oliphant v. Suquamish, in which the high court ruled that Tribal courts cannot criminally prosecute non-tribal members even when the crime is committed on the reservation, making race a de jure (legal) factor in these cases.

About Oliphant, Amy Casselman, author and former case work for the Washoe Tribe of California and Nevada, said:

“Reservations became hunting grounds. This creates a lot of different types of crime—drug production, drug trafficking, human trafficking—but the people who disproportionately feel this sense of predation are Native women. Sexual assault in the US is an overwhelmingly intraracial crime, meaning that rape happens overwhelmingly between two members of the same race. Native women are the one statistical anomaly.”

In the 2013 reauthorization of the Violence against Women Act, Congress stipulated that Tribal courts only have the authority to prosecute non-Tribal sexual offenders who have pre-existing intimate relationships with the women they abused, purposely excluding from prosecution unknown predators who specifically seek out reservations to commit their crimes. The only course of action comes from civil suits.

The Supreme Court does not finalize this case that began 13 years ago; it merely allows the sexual assault case to move forward in tribal courts. But that is far more than Native Americans had before this decision. Full restoration of tribal sovereignty won’t happen until Congress passes a law or the high court overturns Oliphant.

The high court benefited women when it declined to hear a Washington state case in which pharmacists were told that their religious objections could not keep them from dispensing Plan B or other emergency contraceptives. That refusal to hear Stormans Inc. v. Wiesman allows women to get medication no matter what the person views of a pharmacy owner because the 9th Circuit Court had twice ruled in favor of women.

A Washington state judge has also ruled that public hospitals must provide abortions on side if they offer maternity services. The ruling supports the Reproductive Privacy Act, passed by voter initiative in 1991.

On the minus side, the tie allowing a Texas judge to keep his injunction against a DHS policy trying to stop some removals of immigrants appears to be a disaster for the president’s policies. According to noted judge Richard Posner, however, the decision may not make any changes. And as law professor Peter Shane wrote, the decision has nothing to do with executive decisions because it was an agency decision.

The Supreme Court dispensed two disasters in its last week. In Utah v. Strieff, a 5-3 ruling on gender lines overturned the Utah Supreme Court and ruled that an illegally detained person can be subject to lawful search and seizure if the person has a warrant for arrest. Justices Sonya Sotomayor and Ruth Bader Ginsburg argued that this decision contradicts previous Court decisions that had deemed such evidence inadmissible as “fruit of the poisonous tree.” Sotomayor said that police can verify legal status at any time, that a person’s body is always subject to invasion, and that it legitimizes racial profiling:

“The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong.”

The worst ruling, however, may have been the unanimous exoneration of former Virginia governor Bob McDonnell on a charge of corruption by overturning his conviction. Chief Justice John Roberts referred to Citizens United ruling that “ingratiation and access” were “not corruption.” McDonnell and his wife took expensive gifts, loans, and vacations worth more than $175,000 in return for favoring a diet-supplement business benefactor, but the court ruled that only formal and concrete government actions such as filing a lawsuit counts. Arranging meetings doesn’t, giving elected officials a blank check to trade for access. The case was returned to the lower court with the stricter standard but will most likely fail.

All except two of the progressive decisions described above would certainly have lost or had a tie if Scalia had voted. I would also ask if he might have swayed some of the justices toward his far-right position in argument if he were still sitting on the court. All in all, the outcome this year was much better than was expected when the session started last fall.

A message to people who agree with this man who said he wouldn’t vote for Hillary Clinton: “If that means Trump wins, it’s not my fault, the Democrats should have nominated a viable candidate.” Yes, it is your fault, and you will be enabling a GOP president to nominate Supreme Court justices worse than Antonin Scalia.

March 29, 2016

Cracks in LGBT Discrimination, SCOTUS Hearings

Two huge events in LGBT rights occurred in the past week—one for and one against. A week ago, North Carolina’s legislators, traumatized by Charlotte’s anti-discrimination ordinance, went into a special session that cost taxpayers $42,000 in order to prevent any city or county from allowing LGBT people rights—especially using the bathrooms that match their gender identities. The justification for this legislation, deemed the “worst anti-LGBT bill in the country,” was that straight men would have the freedom to go into public restrooms and molest women. Shortly after the successful North Carolina legislation, Georgia’s Gov. Nathan Deal vetoed a bill that would allow any government entity or private business to discriminate against LGBT people by declaring “religious belief.” The bill was similar to the one in Indiana last year that caused such an uproar that GOP Gov. Mike Pence most likely lost his hopes for a presidential candidacy after he signed the bill.

The uproar this time against Georgia and North Carolina came from the GOP darlings, big business. The Supreme Court decisions in Citizens United  and a later case from Montana  cemented the control of corporate control in both elections and political positions. Corporations know that bigotry keeps them from appealing to a broad customer base. The bigger the business, the more they rely on global acceptance, and the businesses that spoke out against the discriminatory bills are some of the biggest ones in the nation, especially in tech, entertainment, and sports industries. These include Google, Facebook, Paypal, Disney, Sony Pictures, CBS, Netflix, NFL, and NBA.

A great deal of discretionary spending comes from millennials who they are far more accepting than older people. Gen X is even more so. According to a recent study, less than 48 percent of U.S. youth ages 13 to 20 describe themselves as “exclusively heterosexual,” and over 70 percent of these young people “strongly agreed” that public spaces should be required to provide gender neutral bathrooms. About 18 states and 200 towns and cities have added specific LGBT non-discrimination protections.

After Indiana’s law was slightly narrowed, the state lost only about $60 million with its “religious freedom” act, but North Carolina are aggressively marketing themselves as good for business. The nine other states joining the “War on Bathroom Use” may look carefully at the differing success rates between two states who have taken opposite stances on human rights. Missouri is facing both a discrimination bill and rejection from many businesses, including Petco, with its passage.

North Carolina’s Gov. Pat McCrory signed the bill in the same 12 hours in which it was introduced and passed in the legislature, but he faces opposition from the state AG Roy Cooper in this fall’s election. Cooper claims that McCrory’s action not only jeopardizes the state’s economy but also allows discrimination against protection of veterans and wages. The new law may revoke a fair housing ordinance in Greensboro and a policy governing municipal contracts in Raleigh.

North Carolina’s law has also frozen the minimum wage everywhere in the state to $7.25. Thus far, New York (both city and state), Washington State, San Francisco, and Portland (OR) have banned state travel by state workers to the state, and 20,000 retail and interior-design companies won’t attend the twice-annual High Point furniture market. The largest economic event in the state, this market generates over 600,000 visitor days to the state with an annual economic impact of $5.38 billion. The Market and the home furnishings industry provide 37,000 jobs in the state. The NFL may pull out the Super Bowl in 2019, an event that brought $800 million to Arizona’s economy last year. ESPN may look elsewhere for its summer X games, and the NBA may change its 2017 All-Star Game from Charlotte.

payton_transgender_ncIf McCrory and his Republicans stick to their guns, they’ll lose a lot more than economic support from big business. States fighting marriage equality lost millions of dollars in lawsuits, and legal action against North Carolina has already started. The ACLU, Lambda Legal, and Equality North Carolina are suing the state, and AG Cooper said he won’t defend the state against the lawsuit. One plaintiff is Payton McGarry (right), a transgender student at the University of North Carolina at Greensboro. This is one of the people who McCrory wants to send into the public women’s bathroom.

ACLU lawyer Tara Borelli, said:

“[In 1996], Colorado enacted a law that said there could be no statewide protection whatsoever for lesbian, gay, bisexual people. The law was so clearly aimed at lesbians and gay people that the Supreme Court didn’t have any trouble striking it down as being clearly motivated by animus against them. This law goes further because it says there are no protections for transgender people. Even more than that, the law specifically requires discrimination against them in all schools and all public agencies.”

By violating Title IX in keeping transgender student out of bathrooms, North Carolina could also lose more than $4.5 billion in federal funding for schools.

McCrory is trying to justify the law with a series of false arguments:

 “We are not taking away any rights.” McCrory overturned the rights that Charlotte provided to its residents along with 11 other cities and five counties. The University of North Carolina system can no longer enforce its LGBT nondiscrimination policy on its 17 campuses.

No business has threatened to leave the state. News articles show how laughable this claim is.

“We have the same rights … that Houston, Texas has [after they overturned the Equal Rights Ordinance.]” North Carolina’s law goes much farther by mandating discrimination in all public arenas. Transgender people aren’t banned from accessing the appropriate restrooms in Houston’s public spaces, and other Texas cities and counties aren’t banned from providing protections.

Discrimination is just “common sense.” McCrory complains about too much “political correctness,” a frequent excuse currently used for conservative bad behavior.

Donald Trump came to House Speaker Paul Ryan’s (R-WI) home town of Janesville today; last night the city approved an ordinance to protect LGBT people from discrimination. The Speaker’s home now has broader protections than provided at the state and federal level. In Janesville, transgender people can use a public restroom based on the gender they identify with, rather than the gender on their birth certificate. Ryan has no comment.

Corporations have created the monster of discrimination that they now decry. The Bank of America’s PAC consistently donated large sums to campaigns for McCrory, state Senate President Pro Tempore Phil Berger, state House Speaker Tim Moore, and the North Carolina GOP. The PAC’s treasurer is Wendy Jamison, BofA senior vice-president for public policy. North Carolina-based Lowe’s “opposes any measure in any state that would encourage or allow discrimination,” but its PAC treasurer, Lowe’s Assistant Treasurer Cindy Reins, donated heavily to the same politicians. Microsoft’s president, Brad Smith, criticized the new state law, but its PAC, run by Managing Director for Government Affairs Edward Ingle, has donated to the same GOP campaigns. The American Airlines PAC gave to Berger and Moore.

 

The best news today! A case about public sector unions got a 4-4 vote in the Supreme Court, meaning that union members must still pay for the benefits that they receive because of the lower court ruling. Unions are required by law to bargain on behalf of all the workers, even if workers don’t join the union. One union benefit is the wage premium of almost 12 percent higher than in non-union shops. In California a wealthy organization trying to break unions found a teacher to challenge this law. A win against the unions would create a class of “takers” who would then starve the union by not paying fees for these benefits. Justice Antonin’s Scalia’s death caused the 4-4 split in the Supreme Court for Friedrichs v. California Teachers Association which kept the mandated fees.

Today’s tie retains a 40-year SCOTUS decision, impacting unions for millions of government workers. The plaintiffs stated that they would ask for another hearing because of the tie, but the justices may be reluctant to provide them with one especially if the number of court justices stays at eight for the next two or three years because of GOP obstructionism.

Today’s judgment may be the shortest ever delivered. It reads: “Per Curium. The judgment is affirmed by an equally divided Court.”

Although Senate Majority Leader Mitch McConnell (R-KY) maintains his refusal to consider any President Obama’s nominee to replace Scalia, 16 Republican senators now say they will meet with Merrick Garland. That’s more than 25 percent of McConnell’s senators who are defecting.

March 16, 2016

President Nominates SCOTUS Justice – Good Luck, GOP!

The ball is now in the GOP Senate’s court: President Obama has nominated Merrick Garland, chief judge of the D.C. Circuit, for Supreme Court justice. After President Clinton nominated Garland for the D.C. Circuit Court in 1995,  seven current GOP senators were among the 32 who voted to confirm him with a 76-23 vote after waiting for 19 months. A Harvard Law School graduate, Garland clerked for two Eisenhower appointees, Justice William Brennan and Judge Henry J. Friendly. At 63, Garland is the oldest nominee for the court since Lewis Powell (1971) who was 64 when appointed. Garland would be the fourth Jewish justice; the other five are Roman Catholic.

In 2003, Garland voted to bar Guantanamo detainees from seeking relief in U.S. Courts, a ruling reversed by the Supreme Court. In 2010, SCOTUSblog’s Tom Goldstein noted that “Judge Garland rarely votes in favor of criminal defendants’ appeals of their convictions.” Goldstein “identified only eight such published rulings,” along with seven where “he voted to reverse the defendant’s sentence in whole or in part, or to permit the defendant to raise an argument relating to sentencing on remand,” in his tenure on the DC Circuit. An extensive blog delineates other Garland decisions when he was being considered for the high court in 2010.

Ultra-conservative Orrin Hatch (R-UT) called Garland an acceptable nominee just last week. In 2010, Hatch called Garland “terrific” and said he could be confirmed “virtually unanimously,” yet Hatch now says that he won’t even meet with Garland although he has “a high opinion of him.”

Despite his background of valuing Senate traditions, Chuck Grassley (R-IA), chair of the Judiciary Committee, is sticking to his guns in denying Garland a meeting. His intransigence is already costing him as Patty Judge, a Democrat, is challenging Grassley in his re-election this year. Although he voted against Garland for the D.C. Circuit in 1997, his only reason was that the court already had too many judges.

Trying to deflate some of the criticism coming from their constituents, Republican senators have established a task force to orchestrate attack ads, petitions and media outreach with the objective of to bolstering their denying consideration of Obama’s nominee.The National Republican Senate Committee calls Garland “a liberal” and “an activist” although lack of proof.

Senators up for re-election are getting nervous about their leadership’s adamant refusal to even consider a nominee. Pat Toomey (R-PA) said that he would consider Garland but only next year if the new president nominates him. Mark Kirk (R-IL) claimed that he will “assess Judge Merrick Garland based on his record and qualifications.” Kelly Ayotte (R-NH) plans to meet with Garland but follows the party line of opposing any confirmation, waiting until the “people speak” in the November election. She may be fighting a Tea Party candidate in her primary on October 13, 2016. Ron Johnson (WI) said earlier than not voting is an action so he plans to vote—presumably against the president’s nominee.

Although she’s not up for re-election, Sen. Susan Collins (R-ME) said that she would meet with Garland because “I view it as my job.” (The two women senators from Maine have been the most reasonable during the past decade.) Sen. Jeff Flake (R-AZ) will do the same. Collins and Hatch voted in favor of Garland’s appointment to the D.C. Circuit along with other GOP senators Dan Coats (IN), Thad Cochran (MS), Jim Inhofe (OK), John McCain (AZ), and Pat Roberts (KS).

As a member of Clinton’s Justice Department, Garland effectively supervised investigations into such bombings as those of the Unabomber, Oklahoma City, Atlanta Olympics bombings. Supreme Court expert Nina Totenberg wrote that Garland has “a reputation for collegiality and meticulous legal reasoning.” He has “more federal judicial experience than any other Supreme Court nominee in history,” a White House official said. “No one is better suited to immediately serve on the Supreme Court.” National Organization for Women President Terry O’Neill praised Garland for “a rigorous intellect, impeccable credentials, and a record of excellence” but said his record on women’s rights was “more or less a blank slate.”

The media will be filled with lies about Garland and his nomination, but here are some facts.

Senate Republicans Routinely Obstruct Noncontroversial, Qualified Nominees: The reform of filibuster rules in 2013 came after GOP senators held up three highly qualified nominees for the D.C. Court of Appeals, appointments that Republicans admitted were highly qualified. These three were on top of 17 others being blocked or who withdrew, causing a logjam throughout the judiciary branch with positions unfilled back for at least six prior years. The travesty received less attention because none of them was for the Supreme Court.

Republicans Are Falsely Referring to Filling Court Vacancies as “Court-packing”: That term is defined as a president’s attempt to increase the number of seats on a court, not fill a vacancy which is basic governance. The threat of court-packing came from FDR’s desire to expand the number of justices to tilt the Supreme Court in his favor. President Obama is following the constitutional mandate to appoint nominees for vacancies.

Republicans Are Worse than Democrats in Obstructing Presidential Nominees: Obstructionist behavior to President Obama’s nominees is unprecedented as half of all filibusters of executive nominees happened during his terms. Earlier, GOP senators blocked the first director of the Consumer Financial Protection Bureau because they didn’t like the law. Eighteen months ago, PolitiFact noted that 68 nominees had been blocked before President Obama’s election and 79 in less than five years of his two terms. Last year, the Senate confirmed only 11 federal judicial nominees. In at least one case, the same GOP senator—Marco Rubio—who recommended a nominee blocked a hearing for her. The seat was vacant for almost two years, and judges had more than 600 cases during 18 months because of Rubio’s refusal to complete his recommendation.

GOP Obstructionism Has Negative Consequences: Contrary to the position that filling vacancies has no urgency, the practice makes the court system less able to address concerns of people in the U.S. and deny them justice.

Republicans who refuse to give Garland even a nod will show themselves even more ideological in selecting a justice, an action that they have highly criticized in the past. Moderate to the point of being conservative, he’s the chief judge of the second most important court in the nation. The Judicial Crisis Network, largely funded by the Koch brothers, has $2 million to spend on ads, but they may not be able to ruin Garland’s career the way that they can for younger nominees. The D.C. Circuit does not normally deal with such social issues as abortion and LGBT rights, but JCN is already salivating over Garland’s vote to rehear a case over D.C.’s tough gun restrictions.

Garland’s nomination may put Republicans into a no-win situation. Sixty-three percent of people in the U.S. believe that the Senate should hold hearings on President Obama’s nominee to replace Scalia as opposed to 32 percent who don’t want this to happen. Never before has the Senate refused to consider any presidential nominee at all simply because it was an election year. Rejecting Garland sight unseen shows that the nomination is not about the person appointed but about the person doing the appointing.

If Garland appears as a centrist jurist suitable for both parties, GOP opposition makes them look even more obstructionist. Yet caving in on their past irrational promises can alienate the core Tea Party members who the establishment has courted for almost a decade. All GOP senators have left is the media as they hope that the nominee isn’t the even-handed, excellent judge that they have claimed he was in the past.

The November election could change the GOP position of refusing Garland if a the new president is a Democrat. In such a case, Republican senators may confirm him during President Obama’s lame-duck session to avoid the possibility of a more liberal justice. Jeff Flake, who sits on the Judiciary Committee, said, “If the election doesn’t go the way Republicans want it, there will be a lot of people open to that I’m sure.”

In nominating Garland, President Obama contacted every senator. He did his job; now it’s time for the senators to do theirs.  The best thing about the nomination? The media may move some of its focus away from Donald Trump.

February 20, 2016

‘Justice Scalia,’ an Oxymoron

Filed under: Judiciary — trp2011 @ 1:43 PM
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Stock in aluminum foil must have gone up last week with its use by the tin-hat conspiracy people after the death of Antonin Scalia last week. One example of craziness is that God killed Scalia to elect Ted Cruz for president. Rick Wiles has used numerology to prove that President Obama killed Scalia. According to Wiles, “The 13th was the 44th day of 2016. Obama is the 44th president of the United States.” Wiles concluded that Washington officials are terrified:

“Deep down they know, the regime murdered a justice … This is the way a dictatorial, fascist, police state regime takes control of a nation.”

Scalia left a 30-year trail of decisions destructive to democracy and equal justice while pretending to be an “originalist” who channeled the minds of the Founding Fathers in determining exactly what they intended in the Constitution. Using ridicule mixed with exaggerated legalese, he was declaimed as “brilliant,” but he actually followed the “textual” approach to support his personal conservative ideology.

In 2009, Scalia declared that nothing in the Constitution “forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” Scalia’s last act was to use “textualism” to put Gustavo Garcia to death in Texas. Executing intellectually disabled people was also just fine with Scalia, demonstrated by his dissent in Atkins v. Virginia (2002). His rationale is that juries continue to sentence mentally disabled people to death. Scalia ignored the Constitution’s Eighth Amendment prohibiting  the imposition of “cruel and unusual punishment.”

In 2005, Scalia upheld an Indiana law barring the vote to people without photo IDs. The GOP excuse for these laws throughout the nation is supposedly the prevention of voter fraud, but in the former century Indiana had not found one case of one voter illegally impersonating another. Throughout the nation, approximately seven percent of possible voters lack the ID—most of them people of color, elderly, students, and poor whites. Getting an ID in Indiana was also onerous: the average poor person in the state lived an average of 17 miles from a county seat. Scalia said, “Seventeen miles is 17 miles for the rich and the poor.”

In 2013, Scalia was part of the voting block of five who overturned the Voting Rights Act. He attributed the law, originally passed in 1965 and clarified in 1970, 1975, 1982, 1992, and 2006, to “a phenomenon that is called perpetuation of racial entitlement…. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes…. And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution…..” The only “original” part of the Constitution used by Scalia is the racist views of the 18th-century Constitution; Scalia ignored later amendments enfranchising all people in the U.S. including women and people of color.

North-Carolina-12-300x232The decision to overturn the Voting Rights Act has recently exploded in North Carolina, forced to postpone its congressional district elections for almost three months because the state Supreme Court requires redrawing the gerrymandered congressional districts. (An example at the right is North Carolina’s 12th Congressional District.) Although required to redraw the lines of some districts, the GOP legislature redrew every district line to maintain a 10-3 Republican majority in the House. In its first major action since Scalia’s death, the U.S. Supreme Court declined to address the state court’s decision; Scalia would probably have led SCOTUS to hear the case.

Republicans in North Carolina freely admit that the purpose of redrawing the map was to send Republicans to the U.S. House. GOP state Rep. David Lewis said, “I think electing Republicans is better than electing Democrats.” Lewis added, “I acknowledge freely that this would be a political gerrymander which is not against the law.” A 2004 Supreme Court does permit political gerrymandering.

Another area in which Scalia led the Supreme Court was gun ownership, especially when he wrote the 5-4 majority decision in District of Columbia v Heller (2008), striking down a handgun ban. This case shifted the court’s position from protecting gun ownership connected to belonging to a state militia to maintaining that the Constitution allows people to possess as many guns as they want. Although Heller didn’t address restrictions of state and local governments, McDonald v. City of Chicago (2010) ruled that the Second Amendment applies to individual states. Recently, the high court has avoided cases regarding the Second Amendment, but the court, however, might hear an appeal to the Second Circuit Court of Appeals upholding assault weapon bans in New York and Connecticut.

Scalia holds the worst record for Supreme Court justices in recent decades on women’s issues. He wanted to overturn Roe v. Wade and always voted anti-choice. He declared that a corporation could be religious in the Hobby Lobby decision denying contraception coverage to women by “religious” corporations. He was the sole dissenter in a case allowing women to attend the Virginia Military Academy. He voted against equal pay in Lilly Ledbetter’s case of sex discrimination.

According to Scalia, “ladies” are not protected by the Constitution. The Equal Protection Clause of the 14th Amendment requires each state to provide equal protection under the law to all people within its jurisdiction. To Scalia, that clause is for racial but not gender discrimination. In a 2011 interview, Scalia said:

“Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.”

Another decision against women came from Dukes v. Wal-Mart Stores, Inc., with a 5-4 decision reversing a district court’s decision to certify a class action lawsuit from 1.6 million female Wal-Mart employees claiming gender discrimination. The court rejected a class lawsuit with the justification that the plaintiffs lacked enough in common to constitute a class.

Scalia didn’t even want women on the Supreme Court, as Sandra Day O’Connor can testify. Although O’Connor was confirmed for the Supreme Court in 1981, a woman’s restroom wasn’t added to the justices’ robing room until 1993 when Ruth Bader Ginsburg. In general, Scalia described O’Connor’s reasoning as “irrational,” and not to “be taken seriously.” In Planned Parenthood v. Casey (1992), a case that confirmed Roe v. Wade, O’Connor voiced the “undue burden” test for abortion regulations that caused the court to oppose Scalia. He charged that this test was “unprincipled” and “will prove hopelessly unworkable in practice.” His dissent denounced O’Connor and the others in the majority for their “almost czarist arrogance.”

Blacks are better off in slower schools, according to Scalia. During oral arguments in Fisher v. University of Texas at Austin, Scalia said:

“There are those who contend that it does not benefit African Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well.”

Scalia will have nothing more to say about this affirmative action case. Argued on December 9, 2015, the case will most likely be decided by the remaining eight justices.

Much of Scalia’s vitriol was directed toward LGBT people:

Homosexuality like murder: Scalia sympathized for Colorado residents who wanted to protect themselves from gay sex like they would from murder but lost that protection when Romer v. Evans (1993) overturned a Colorado amendment allowed anti-gay discrimination. Scalia didn’t think that animosity toward homosexuality was a valid argument because he “had thought that one could consider certain conduct reprehensible–murder, for example, or polygamy, or cruelty to animals–and could exhibit even ‘animus’ toward such conduct.”

Homosexuality like incest: After the Supreme Court struck down a Texas ban on sodomy in Lawrence v. Texas (2003), Scalia wrote, “States continue to prosecute all sorts of crimes by adults ‘in matters pertaining to sex’: prostitution, adult incest, adultery, obscenity, and child pornography.” He argued gay sex should be criminalized because of moral objections to homosexuality.

Homosexuality like flagpole sitting: Scalia’s analogy in Lawrence v. Texas: “Suppose that all the states had laws against flagpole sitting at one time [which they then overturned].Does that make flagpole sitting a fundamental right?”

Marriage equality nothing more than “fortune cookie justice”:  In response to legalized same-gender marriage in Obergefell v. Hodges (2015), Scalia mourned, “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” He also described the majority opinion as being “couched in a style that is as pretentious as its content is egotistic.”

“Justice Scalia” should go down in history as an oxymoron, defined by connecting contradictory words. While sitting on the Supreme Court, Scalia promoted himself instead of justice.

February 18, 2016

GOP Hypocrisy Expands with Scalia’s Death

Last weekend’s events—the death of Supreme Court Justice Antonin Scalia and the GOP presidential candidate in South Carolina less than two weeks before that state’s primary—occupied the media. The Saturday night debate showed the shift in presidential debates: in the past, they focused on the people on the stage, but the crowd attending the debate is now part of the performance. Ugly heckling and booing caused Political Wire’s Taegan Goddard to comment that the show seemed to be “taking place in a Roman coliseum,” and Republican David Frum bewailed that the audience  was “joining in the bloodbath.”

Prominent conservative pundit Rich Lowry called the debate a “train wreck,” and Frum asked if the GOP looks “like a party ready to govern anything.” GOP pollster Frank Luntz, who taught the conservative side how to speak in loaded language that hid their efforts to destroy democracy in the nation, said:

“Seriously, this is insane. The GOP is destroying itself tonight, and they have no one to blame but themselves.”

Trump has set the tone for debates. Kasich tried to stop the demolition derby and Ben Carson commented on how few questions he got, but the other four tried to out-insult the others.

While the candidates battled about other issues, they declared consensus in their firm belief that President Obama lacked the right to nominate a replacement for Justice Scalia, who died February 13, 2016, the same day as the debate. An hour after the announcement of Scalia’s death, Senate Majority Leader Mitch McConnell (R-KY) said that the president, with 11 months left in his second term, should leave the nomination to the next president and promised that the Senate would not acknowledge the nominee if the president were so foolish as to making an appointment.

Of the 54 Senate Republicans, 33 opposed any appointment this year. They demand that any nominee continue Scalia’s “legacy”—one of the most conservative on the Supreme Court. Eleven senators indicated a possible willingness to consider a nominee, and another ten are silent on the issue. Seven of the 11 Republicans on the Senate Judiciary Committee, the first stop for any judicial nomination, concurred with McConnell by announcing they would not consider any appointment from President Obama.

Only a decade ago, however, McConnell said:

“Any President’s judicial nominees should receive careful consideration.  But after that debate, they deserve a simple up-or-down vote. . . . It’s time to move away from advise and obstruct and get back to advise and consent.  The stakes are high . . . . The Constitution of the United States is at stake.  Article II, Section 2 clearly provides that the President, and the President alone, nominates judges.”

He had held this position for the previous 35 years. In 1970, McConnell wrote:

“Even though the Senate has at various times made purely political decisions in its consideration of Supreme Court nominees, certainly it could not be successfully argued that this is an acceptable practice.

“The proper role of the Senate is to advise and consent to the particular nomination, and thus, as the Constitution puts it…This taken within the context of modern times should mean an examination only into the qualifications of the President’s nominee.”

The qualifications, according to McConnell, are competence, achievement/distinction, temperament, ethical behavior, and no criminal record. Nothing about political ideology. McConnell voted for a Supreme Court justice late in a president’s term, supporting Justice Anthony Kennedy, nominated only 13 months before the end of Ronald Reagan’s second term. Over a century has lapsed since the president failed to nominate or the Senate failed to confirm a nominee in a presidential year because of the impending election.

In the past, McConnell has stated other rational—and accurate–positions that disappeared after Barack Obama was elected president:

“The President is presumably elected by the people to carry out a program and altering the ideological directions of the Supreme Court would seem to be a perfectly legitimate part of a Presidential platform. To that end, the Constitution gives to him the power to nominate.

“Even though the Senate has at various times made purely political decisions in its consideration of Supreme Court nominees, certainly it could not be successfully argued that this is an acceptable practice.

“The true measure of a statesman may well be the ability to rise above partisan political considerations to objectively pass upon another aspiring human being.”

Reagan supported replacement of justices in the last year of a presidential term:

“The Federal judiciary is too important to be made a political football. I would hope, and the American people should expect, not only for Judge Kennedy’s confirmation but for the Senate to get to work and act on 27 other judicial nominations that have been left in limbo for quite awhile now.”

In July 2008, during the last year of George W. Bush’s second term, Republicans convened a hearing entitled “Protecting American Justice: Ensuring Confirmation of Qualified Judicial Nominees” in reaction to the “Thurmond Rule,” a demand from racist senator, Strom Thurmond, that a president be limited by time to nominate a justice. Almost half a century ago, Thurmond tried to make this mandate in retribution to President Lyndon Johnson’s Civil Rights Act by blocking the president’s nomination of Justice Abe Fortas as Chief Justice in 1968. No rule was passed, and Thurmond said gave the last six months as the timeline for no nominations. Comments from participants in the 2008 hearing:

Sen. Chuck Grassley (R-IA):

“[The idea that July 2008 would trigger the] Thurmond Rule ­­– that’s just plain bunk.  The reality is that the Senate has never stopped confirming judicial nominees during the last few months of a president’s term.”

Eight years later, Grassley said:

“The fact of the matter is that it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year… it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.”

Sen. Lamar Alexander (R-TN) said in 2008:

“There’s no excuse for not considering and voting upon a well­ qualified judicial nominee in the United States of America today…  [J]ust because it’s a presidential election year is no excuse for us to take a vacation.  And we’re here.  We’re ready to go to work.”

Now, Alexander wants to allow the next president to fill this lifetime appointment to the Supreme Court.

Sen. John Cornyn (R-TX), in 2008, wanted the two parties to work together “to confirm qualified men and women to the federal bench” in an election year–“to establish that regardless of the next president’s party, the nominees will be treated fairly and on the basis of their qualifications, and not on the basis of ancient political squabbles.”

Mitch McConnell (R-KY) echoed these ideas:

“I think it’s clear that there is no Thurmond Rule.  And I think the facts demonstrate that.”

GOP Sen. John McCain said in 2005 that if Democrats should “win the next presidential election,” they should choose Supreme Court nominees because “that’s the way the system works.” McCain has now reversed this opinion.

In the Washington Post, Paul Waldman wrote about the change in the GOP:

“[Republicans] haven’t just grown more ideologically conservative in recent years, they’ve also grown more procedurally radical. Again and again, they’ve decided that the system of formal and informal norms that make the government work can be discarded if it becomes inconvenient.”

Republicans started out with the argument that there is no history of a president nominating a Supreme Court justice in his last year. Once that excuse was totally debunked, they decided it would be cruel to the nominee because Senate will destroy that person’s reputation. Sen. Ted Cruz (R-TX) said:

“I think that hearing would end up very politicized. And I don’t think it would be fair to the nominee.”

Sen. Pat Toomey (R-PA) made a similar argument:

“[I]t might be just as well not to have a hearing that would, sort of, might mislead the American people into thinking that this is just about the qualifications of the candidate, because it’s bigger than that.”

One reason for the shift in attitude may be a fear of the Senate reverting to a Democratic majority. Of the 36 senatorial positions up for grabs in the 2016 election, 24 are Republican. Of those 24, six are in for difficulty in being re-elected.

Another concern may be popular opinion, as seen in the results of the conservative Rasmussen poll indicating that 51 percent of likely voters believe that Obama should nominate Scalia’s successor, and 53 percent believe the Senate should not “reject or refuse to consider” the nomination. Only 35 percent favor McConnell’s blocking the president’s constitutional duty to appoint Scalia’s replacement.

Yet the cracks appearing in McConnell’s control of his Republicans seem to be disappearing,  and GOP senators are turning toward rejecting any nominee. For example, Sen. Lisa Murkowski (R-AK) earlier stated that the Senate should hold hearings. Her shift in opinion was revealed in tweets urging President Obama to “follow a tradition embraced by both parties” by yielding to the next president:

“If [the president of the United States] ignores precedent, I believe extraordinary circumstances give the Senate every right to deny the nominee an up or down vote.”

The biggest irony about the argument surrounding an appointment to replace Scalia this year comes from the justice’s famous “originalist” view of the Constitution, his belief that laws and judicial rulings in the 21st century should following the text of the Constitution exactly as the Founding Fathers intended. Article II Section 2 of the Constitution states that the president is responsible for nominating members of the high court. Nowhere does the Constitution state “except when a Democratic president has almost a year to serve.”

As Frank Rich wrote:

“By refusing to act on the Scalia vacancy, the [GOP] party will once again brand itself as the party of obstructionism, government dysfunction, and animosity toward the growing majority of Americans who do not fit its predominantly white male demographic.”

December 9, 2015

Scalia’s Affirmative Action Quote of the Week

 

Media pundits have concentrated on Donald Trump’s outrageous statement that he would keep all Muslims from entering the United States. Last month, Justice Antonin Scalia made a connection between LGBT people, pedophiles, and child abusers in a speech to first-year law students at Georgetown. Today he made outrageous—and dangerous—statements during arguments before the Supreme Court. Scalia is much worse than Trump–Scalia’s in control, Trump isn’t.

Supreme Court Justice Antonin Scalia is interviewed by The Associated Press, Thursday, July 26, 2012, at the Supreme Court in Washington. (AP Photo/Haraz N. Ghanbari)

Antonin Scalia (AP Photo/Haraz N. Ghanbari)

In an affirmative action case out of Texas, the high court listened to lawyers debate the use of race in college admissions. Scalia’s statement:

“There are – there are those who contend that it does not benefit African Americans to ­­ to get them into the University of Texas where they do not do well, as opposed to having them go to a less­-advanced school, a less – a slower-track school where they do well.

“One of – one of the briefs pointed out that – that most of the – most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re – that they’re being pushed ahead in – in classes that are too ­­ too fast for them.”

Talking about black students accepted under affirmative action programs, he said, “They’re being pushed into schools that are too advanced for them.” He added that black students benefit from a “slower track” because “it does not benefit African-Americans” who don’t succeed academically in schools that accepted them under affirmative action policies. He at least started a statement with “there are those who contend.” Nowhere in his statements, however, did he disagree with those contenders.

To summarize Scalia’s responses to today’s case, affirmative action is bad for black students because they’re not smart enough to succeed in good schools.

Fisher v. Texas comes from Abigail Fisher, who complained that she was denied admission to the University of Texas because she is white. A lower court found that she wouldn’t have been admitted under any circumstances, but the case has plowed its way up through the courts to the top deciders. The court sent the case back to the 5th Circuit Court of Appeals last year in 2013, finding that the case needed to be re-examined under “strict scrutiny.” The lower court again found in the university’s favor, and, like a zombie, the case is back.

The university lets in the top ten percent of all high school graduating classes for 75 percent of the accepted students and then uses a process considering race and several other attributes such as socioeconomic status instead of only class rank for the remaining 25 percent. Hopwood v. Texas forbade the consideration of race in admissions in 1997 so the policy of accepting the top ten percent attempted to create racial diversity. Only class rank, however, could exclude a National Merit semifinalist who attended a high-achieving high school—thus the reason for a more holistic approach for part of the students accepted. Race was considered as one attribute after 2003 when the Supreme Court upheld affirmative action as constitutional. Race was added to add “minorities with unique talents and higher test scores to add diversity … to the student body,” according to the 5th Circuit decision.

Today conservatives argued that Texas cannot put race into the mix for a holistic decision. Justice Ruth Bader Ginsburg used the same argument as she did two years ago, that the supposedly “race-neutral” process of admitting the top 10 percent isn’t race-neutral because it makes virtue out of a long history of school and housing segregation and discrimination. Justice Sonia Sotomayor fiercely challenged Fisher’s attorneys.

Justice Elena Kagan was silent: she recused herself because she worked on the case as solicitor general. That brings the number of deciders down to eight—four dedicated conservatives, three progressives, and Justice Anthony Kennedy who has become the swing vote. Meanwhile, three of the conservatives already decided in opposing affirmative action, and Justice Samuel Alito argued that advocates for affirmative action are making racist or condescending judgment. Chief Justice John Roberts kept asking when racial discrimination remedies would no longer be necessary. (He was one of the judges who opened the door letting states discriminate against minorities in their constitutional right to vote by claiming that the Voting Rights Act, which would have celebrated its 50th anniversary this year, wasn’t necessary.) Roberts asked, “What unique perspective does a minority student bring to a physics class?”

The effects of a Supreme Court decision in Fisher will be long-reaching, affecting every university in the nation. There may not be a definitive ruling at this time either. Kennedy asked lawyers if the trial court should collect more evidence although he may have changed his mind later on. As he said, however, “We’re just arguing the same case [as in 2013]. It’s as if nothing had happened.”

Kennedy might have found it useful that 168 black and Latino students with grades as good or better than Fisher’s were also denied entry into the university that year. Fisher also turned down an offer to attend the university starting her sophomore year if she earned a 3.2 GPA at another Texas university school her first year.

The year that Fisher applied to UT, 92 percent of the students were admitted from the top ten percent of the in-state spots. She wasn’t one of them. Her grade point was average and her SAT scores not great. Fisher was represented pro bono in the lawsuit by Project on Fair Representation, funded by conservatives who want to do away with any affirmative action. The group also took the case to the Supreme Court that eradicated vital portions of the Voting Rights Act of 1965.

Fisher has already graduated from Louisiana State University, her second choice, and works in finance at an Austin firm. Her only harm, according to a news reporter who asked, is her inability to tap into the UT’s alumni network and perhaps missing out on a better first job. She seeks only the return of her application fee and housing deposit–$100 in damages. On the other hand, the organization representing her wants to use Fisher to attack the equal protection clause of the 14th Amendment. During the past 150 years, there has been no ban on laws and government programs that consider race. Project on Fair Representation wants to change that.

In a 1971 ruling, the Supreme Court ruled that government could not mandate colorblindness when doing so would defeat the integration requirement of Brown v. Board of Education. In another case, Justice Harry Blackmun wrote, “In order to get beyond racism, we must first take race into account. There is no other way.” An increasingly conservative court has been involved in so-called reverse discrimination cases.

By now, the conservative portion of the court supports Roberts when he said, “The way to stop discriminating on the basis of race, is to stop discriminating on the basis of race.” Scalia called the Voting Rights Act a “racial entitlement.” Basically, the Supreme Court may return to the 1956 Southern Manifesto by Strom Thurmond and Richard Brevard Russell to resist overturning school segregation with the equal protection clause.

Either the current Supreme Court rules in favor of the equal protection clause, or the Project on Fair Representation will go trolling for another self-proclaimed white victim to re-address the issue.

November 2, 2015

Supreme Court Hears Foster Racial Discrimination Case

The right to a fair jury is the only right stated in both the U.S. Constitution and Bill of Rights in the Sixth Amendment. “Fair” means that the jury be “truly representative of the community,” U.S. Supreme Court Justice Hugo Black said in the mid-twentieth century. A common term is “a jury of your peers.” Yet juries are typically not “representative” because many people who cannot afford to miss any work are excused for that reason. At the time, Black made this pronouncement, women were not equally called to be on juries in some states, and black citizens were typically excluded. Congress tried to amend the situation through the 1957 Civil Rights Act and the Federal Jury Selection and Service Act of 1968, the latter insisting that juries come from a fair cross-section of the community.

Federal laws regarding juries, however, applied only to juries in federal court. States continued to avoid women on juries by making it “voluntary,” requiring them to contact the court clerk to say that they were willing to serve. The U.S. Supreme Court upheld these laws even as late as 1961 (Hoyt v. Florida) in a unanimous vote after Ms. Hoyt was convicted of the second degree murder of her husband by a jury composed of 12 men. The rationale for excluding women from the jury was that “woman is still regarded as the center of home and family life.”

Not until 1975 did SCOTUS strike down state laws that limited women’s service on juries in Taylor v. Louisiana when Mr. Taylor was convicted of aggravated kidnapping by an all-male jury. Thankfully, Hoyt is not the end of this story. In 1975, the Supreme Court was again asked to face the female juror question, in Taylor v. Louisiana. Mr. Taylor was convicted of aggravated kidnapping by an all-male jury chosen from an all-male panel. Justice Byron R. White wrote the opinion for the ruling: “It is no longer tenable to hold that women as a class may be excluded or given automatic exemptions based solely on sex if the consequence is that criminal jury venires [panels] are almost totally male.” The only dissent to this decision came from Justice William H. Rehnquist, who became chief justice nine years later.

Attorneys continued to limit women on juries through peremptory challenges, a situation not settled until the 1994 case of J.E.B. v. Alabama ruled that gender could not be used for challenges (i.e., challenges without explanation).  By then Rehnquist had picked up support against women on juries from two other justices still on the Supreme Court–Antonin Scalia and Clarence Thomas. Equal jury service for women came from two arguments: the belief that a “jury of her peers” would improve the legal system, and that women would not achieve equality without have equal rights and responsibilities as men. Excluding women from juries made them lesser citizens.

The issue of women on the jury may be more settled, but the research shows that jury selection discriminates against racial minorities as well as the poor and persons with low and high educational attainment.  According to a 2012 study, black defendants are significantly more likely than whites when the jury pool has no black jurors. Just one black member makes the conviction rates for both races almost equal.

In Batson v. Kentucky (1986), the Supreme Court banned peremptory challenges based on race, but the high court has been forced to readdress the problem since then. For example, Thomas Miller-El appealed to the U.S. Supreme Court in 2003 after 10 out of 11 blacks were excluded from the jury at his trial. SCOTUS ruled that the Fifth Circuit Court had to accept his appeal, but the lower court ruled that he didn’t show clear and convincing evidence of purposeful discrimination. Miller-El was re-sentenced to death. After Miller-El made another trip to the U.S. Supreme Court, a lower court accepted his plea agreement in exchange for life in prison.

The most recent Supreme Court case about racial discrimination on juries was heard today. Timothy Tyrone Foster, a black man, is on death row after the prosecutors identified all of the black prospective jurors from the jury pool. The all-white jury convicted Foster of murder and sentenced him to death. Foster lost his appeal to the Georgia Supreme Court, but the U.S. Supreme Court said that it will hear the case because of Batson. Although Batson ruled that the prosecutor can use a race-neutral explanation for eliminating a potential juror if the defendant claims that the reason was race, a 2008 Supreme Court case (Snyder v. Louisiana) decided that a peremptory strike was motivated only “in substantial part by discriminatory intent.”

Prosecutors at Foster’s trial used four of nine peremptory strikes to block all the qualified black jurors in the pool. The state Supreme Court accepted the nonracial reasons after Foster appealed. Prosecutors used such reasons as “failure to make eye contact,” looking “bored,” being “divorced,” or “a social worker.” One exemption was because a black juror was a member of the Church of Christ. The rationale was that the denomination had a strong position against the death penalty despite the man testifying that he could vote for the death penalty. Marilyn Garrett, 34, was struck because she was close in age to Foster, who was 19 at that time. Another excuse was that she was a social worker although she wasn’t one. These excuses were accepted despite all the black prospective jurors’ being marked with a “B” on the prosecution’s worksheets, and the prosecution selected eight white jurors under the age of 35, one of whom was two years older than Foster.

Justice Elena Kagan said the case seemed as clear a violation “as a court is ever going to see” of the Batson decision, and six of the nine justices indicated that black people were improperly excluded from the jury. They showed little tolerance for arguments from Georgia Deputy Attorney General Beth Burton that the prosecutor Stephen Lanier used appropriate “race-neutral” reasons for the all-white jury. One excuse was the arrest of a cousin of a black juror, but Lanier learned about the arrest only after the jury was seated. “That seems an out and out false statement,” Justice Ruth Bader Ginsburg said about Lanier’s rationale. Justice Sonia Sotomayor said, “I have cousins who I know have been arrested, but I have no idea where they’re in jail. I hardly — I don’t know them.” Even Justice Samuel Alito didn’t accept the reason about a 34-year-old being too close to the age of a 19-year-old.

Foster’s first trial was the year after Batson ruled against excluding jurors on the basis of race, but judges have ignored the continued practice for almost three decades. A training video from the late 1980s shows then-Assistant District Attorney Jack McMahon explaining that “young black women are very bad, maybe because they’re downtrodden on two respects … they’re women and they’re blacks.” He also recommended that prosecutors avoid older black women as well as young black men but reminded them that they had to find nonracial reasons for the strikes. “Question them at length and on this little sheet that you have, mark something down you can articulate at a later time if something happens.”

A North Carolina study of 173 death penalty cases found that black prospective jurors were over twice as likely to be struck by the prosecution as comparable white jurors. The ratio for blacks in a Louisiana study of 390 felony jury trials was three times the rate of blacks. Houston County (AL) prosecutors used peremptory strikes to exclude 80 percent of blacks qualified for death penalty cases. In a county that is 27 percent black, half these juries were all white, and the rest of them each had only one black juror.

The Supreme Court is dealing with only one problem in Foster’s conviction. His IQ range between 58 and 80 makes him “in the borderline range for intellectual disability,” according to a psychiatric evaluation, but the jury ignored the testimony. Foster is also one of the 56 percent people of color awaiting execution although blacks comprise only 13 percent of the nation’s population. He has been on death row for 28 years. Even if the court rules in Foster’s favor, it would only be for a re-trial.

The prosecutor said that part of his peremptory strikes were for gender and not race. The final count for the all-white jury was seven men and five women. And now, peremptory challenges for gender are also illegal.  Race and gender are being addressed as reasons for challenging jurors. Some day, the U.S. Supreme Court may address preventing sexual orientation and gender orientation for peremptory challenges. Last year the 9th Circuit Court of Appeals held last year that to be unconstitutional but only in the nine states that it covers. Blocking LGBT people from juries is still legal.

July 22, 2015

U.S. Justice for the Top 1 Percent

Mass media is gradually turning to the criminal (in)justice system within the past few months. One publicized tragedy is a teenager’s suicide after he was incarcerated at Rikers for three years with no trial following his arrest for allegedly stealing a backpack. When the case was finally dismissed, he was so traumatized by the years in solitary confinement and abuse that he couldn’t survive.

President Obama, the first sitting president to visit a federal prison, has recently been addressing the serious problem that the U.S. incarcerates a greater percentage of its population than any other industrialized country. The discussion about a system that imprisons almost twice as many people as two decades ago and that disproportionately jails people of color is long overdue.

prison_pop_increase

Adam Benforado is one person who has researched the differences between freedom and imprisonment—not only class and race but also juror life experience and the fatigue level of parole boards. In his new book, “Unfair: The New Science of Criminal Injustice,” he describes the great emphasis of unreliable confessions on convictions. The Innocence Project, responsible for over 330 exonerations, found that “more than 1 out of 4 people wrongfully convicted but later exonerated by DNA evidence made a false confession or incriminating statement.” Saul Kassin, a professor of psychology at John Jay College of Criminal Justice, stated, “Once the confession is taken, it trumps everything else…its effects cannot be reversed.”

Police who initially focus on behaviors showing that a suspect lies, use methods from false ideas about body language and leading lines of questioning. Detectives ask provocative questions and then look for “jittery limbs or averted gaze.” Benforado explained that “frequently someone who’s committed a horrible crime will look you straight in the eye and tell you that they’re innocent.” Techniques  to get admissions of guilt employ coercive “good-cop, bad-cop” routines. Vulnerable people such as those with low IQs, a history of mental health problems, or with less life experience such as teenagers often make false confessions in efforts to appease interrogators. Over 80 percent of people who confess but please not guilty are convicted because the confessions are almost impossible to erase.

Even recordings can result in viewer bias. According to Benforado, the point of view can make a huge difference:

“When people watched the footage shot from the perspective of the interrogator, they tended to say, well, this looks like a completely fine, voluntary confession. But when they watch the videotape from another perspective, through the eyes essentially of the suspect, suddenly they notice all of these coercive factors. And they tended to think, well no, actually that confession cannot come into court because it is so badly influenced by the actions of the interrogator.”

Benforado also pointed out how facts have little relationship with jury verdicts. Black men typically get longer prison terms and have a higher incidence of death sentences than white men. Jurors’ backgrounds and experiences, “cultural cognition,” weigh more heavily in guilt or innocence than legalities. For example, in trials of rape date, “women who were older, who were more conservative, who adhere to more traditional gender norms, were far more likely to let the man off in this particular case than women who were liberal and younger.”

Parole boards may be the most alarming part of injustice because of how the time of day plays a big part of whether prisoners are released or returned to prison. The worst time to get a parole is before the first break of the day.

The saddest conclusion of Benforado’s study is that the legal system is primarily created by and composed of white, wealthy, highly-educated older men. At this time, white people in the United States think that they are at risk. That’s the reason that a young man went to a Bible study at a church in Charleston (SC) and killed nine people.

One major tragedy  in the United States criminal justice system is that 2,500 people in the United States were sentenced to life without parole when they were teenagers. The country will pay $4 billion to keep them there for the rest of their lives. All UN-affiliated countries in the world have signed and ratified a treaty to ban life imprisonment for juvenile offenders except for the United States, Somalia, and South Sudan.

In 2012, the Supreme Court ruled in Miller v. Alabama by a 5-4 vote that these life sentences violate the 8th Amendment in the U.S. Constitution. and the court banned mandatory life sentences for minors. The ruling, however, left the decision of whether the ruling is to be applied retroactively up to individual states. Eleven states have thus far ruled in favor of retroactivity, but five have ruled against retroactivity.

One of these 2,500 juvenile lifers is Efren Paredes, who went to prison in Michigan when he was 15 and has been there for 26 years. An honor roll student with no criminal record, he was arrested but claimed that he was at home with his family watching TV when a convenience store clerk was shot and killed in a robbery. The Supreme Court announced last March to hear Toca v. Louisiana in the upcoming session that would determine whether Miller would be retroactive nationwide.

Michigan is second only to Pennsylvania in the number of juvenile lifers. According to Michigan law, teenagers as young as 15 years old are automatically tried in adult courts for murder cases, and convicted teens go directly to adult prisons. If the court rules in favor of retroactive treatment, convicts tried as juveniles must have a re-trial with the hope that a jury grants the possibility of parole because they plead their cases before a parole board. Even if the Supreme Court rules for nationwide retroactive application of Miller in Toca v. Louisiana, Parades’ parole could be in danger because he has always maintained his innocence when parole boards demand for a showing of “remorse.”

Another tragedy is that female victims of abuse are sent to juvenile detention halls that fail to treat them for mental health issues. “The Sexual Abuse to Prison Pipeline: The Girls’ Story,” produced by the Human Rights Project for Girls (Washington, DC), the Center on Poverty and Equality (Georgetown University Law Center), and the Ms. Foundation, reported that girls’ involvement in juvenile justice systems nationally is “growing disproportionately” and that girls of color are especially affected.

Many infractions, such as running away from home or school truancy, should not have led to incarceration, and the Human Rights Projects for Girls is fighting for legislature that would require prompt help for sex trafficking victims who are foster-care children and expose sex trafficking of minors. Most youth are confined in facilities lacking licensed professionals as mental-health counselors. Congress could fix loopholes in treatment of girls in crisis by tying funding to federal law requirements.

The biggest sin of prisons, however, is that privatization has made prisons a chief money raiser for the top one percent in the United States. With the rise of privately-owned prisons, incarceration has become big business in America. Holding a population of over 130,000, private prisons hold about 17 percent of federal and 7 percent of state inmates, bringing over $3.3 billion in revenue to just two corporations, Corrections Corporation of America (CCA) and GEO Group, just last year. Almost half the immigrant detention population is in private prisons. Corporations fiercely lobby against any reduction in their population, whether from reductions in mandatory minimum sentencing laws, immigration reform, or drug legalization and decriminalization. There’s not much danger of losing their prisoners, however, because privately-owned prison companies usually include an occupancy level of 90 percent or above in their contracts.

Private companies are in control of extending prisoners’ sentences through doling out infractions—twice as many as government-run prisons—adding about $3,000 of costs to taxpayers per prisoner. When released, prisoners from private prisons are more likely to go back into the system. CCA has provisions in its contract to keep the most costly inmates—those with health issues—from going into its prisons. They had 14 different exclusion criteria including HIV-positive, disabled, elderly, or those with “sensitive medical conditions and/or high risk diagnoses.”

Current laws that incarcerate millions have not resulted in any greater safety for the country’s population and are a giant waste of money. Yet politicians support these failed policies because lobbyists pay them. While Chairman of the Florida House of Representatives, now-Sen. Marco Rubio (R-FL) took $75,000 for his state campaigns, hired a former GEO trustee as economic advisor, and made sure that GEO got a $110 million contract for the state’s largest private prison facility. A federal inquiry found tens of thousands of dollars in kickbacks to Florida lawmakers and ended up indicting Florida House Speaker Ray Sansom. Moving on to being a U.S. senator, Rubio pushed Florida Gov. Rick Scott to turn 27 state prisons to GEO. For that, Rubio’s PAC got $114,000 in 2011.

The U.S. is horribly over-incarcerated. The 2.4 million men, women, and children in jails and prisons are more people per capita than any nation except for Seychelles. This 700-percent increase has come since 40 years ago when the U.S. was comparable to other nations. During that time, the War on Drugs cost $1 trillion and arrested 45 million people. Imprisoning people means that they cannot get treatment for the reason behind their drug use, and the prisons resort to solitary confinement. Portugal decriminalized all drug use and now treat addition as a medical issue with humane correctional methods. Drug-use rates have markedly declined.

The criminal justice in the United States is totally skewed toward the privileged who will fight to keep the status quo because it gives them money and position.

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