Nel's New Day

June 24, 2013

SCOTUS Decisions, Immigration Reform Amendment, Texas Anti-Abortion Continue

Although the Supreme Court did not deliver its rulings about marriage equality and the Voting Rights Act of 1965 today, they did divulge other decisions. SCOTUS did deliver a non-ruling on affirmative action in Fisher v. University of Texas. In the question of whether a white student suffered racial discrimination at the University of Texas, SCOTUS rejected a lower court’s approval of the school’s affirmative action plan but said that it will have to evaluate it again.

The constitutionality of race in university admissions, however, survived with the ruling that race may be considered as a factor as long as the policy is “narrowly tailored.” If “‘a nonracial approach . . . could promote the substantial interest about as well and at tolerable administrative expense,’” then the university may not consider race.

When states have banned affirmative action, the number of minority has drastically dropped. Today’s ruling allows universities to continue implementing diversity plans, but it does not preclude these state bans. In its next term, SCOTUS will review a Michigan ban that the 6th Circuit Court of Appeals has struck down.

In his opinion, Justice Clarence Thomas compared any affirmative action to slavery. He has also said that he would vote to overturn the case next year upholding the University of Michigan Law School’s affirmative action policy. That means he doesn’t need to listen to arguments next year because he’s already made up his mind.

Courtesy seems to have disappeared in SCOTUS. Justice Ruth Bader Ginsburg dissented to the racial discrimination ruling, asserting that the lower court ruling should have been upheld. She also read a dissent to the case (below) which makes racial and sexual discrimination easier by raising the level of proof to establish retaliation for complaining about discrimination.

Part of Ginsburg’s dissent was a “hypothetical” (meaning drawn from a real case) when a female worker on a road crew was subjected to humiliations by the “lead worker” and who now has no remedy because of the court ruling. According to Garrett Epps, Justice Samuel Alito pursed his lips, rolled his eyes to the ceiling, and shook his head “no.” There are no cameras to show the incident, but Epps reported that the audience made audible gasps.

SCOTUS gave sexual and racial harassment a boost up in the workplace through today’s 5-4 ruling in Vance v. Ball State University. Thanks to five Supreme Court justices, a “supervisor” is defined as having the power to make a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”

The definition eliminates all the people who still maintain power over employers through reporting their actions to employers—excuse me “supervisors.” One of these “non-supervisors” is a senior truck driver who coerced a female subordinate into having unwanted sex with him. Justice Elena Kagan also described the secretary whose boss “subjects that secretary to living hell, complete hostile work environment on the basis of sex.” That person is not a “supervisor” because it’s the “Head of Secretarial Services” who would fire her.

In University of Texas Southwestern Medical Center v. Nassar, the five conservative justices also allowed employers a greater right to retaliate against victims of discrimination who report that they have suffered discrimination.

The Senate is working hard to discriminate against immigrants through its reform bill. In a desperate attempt to pass the bill, the Senate passed a motion to debate an amendment by 67-27 with 15 GOP “yes” votes that would ostensibly make the bill more palatable to conservatives. It’s a Christmas gift to Halliburton, as  Sen. Patrick Leahy (D-VT) said, because of the requirement for another 700 miles of fencing. Another piece of the amendment was doubling the number of border patrol agents to 40,000—one for each 1,000 feet of the southern border of the United States. The party that wants less government and spending cuts now helps support a bill that would cost an additional $46 billion.

Most of the publicity for the amendment came from the border security, but Sens. Orrin Hatch (R-UT) and Marco Rubio (R-FL) managed other offensive provisions. One prohibits undocumented workers from counting past wages toward Social Security eligibility, and another prevents the government from providing welfare to immigrants until they become citizens. The provisions also called for an additional five-year ban on federal health subsidies under Obamacare for unauthorized immigrants who get a green card and tried to ensure these immigrants pay back taxes and penalties on any wages they earned while in the country illegally.

There may be more news about what’s buried in the 1,200-page amendment before the vote on Thursday or Friday.

Meanwhile, Texas GOP members are using a special legislative session to push through more restrictive anti-abortion regulations. (What happened to their love for small government?!) The proposed law would criminalize abortions after 20 weeks and shut down health clinics, leaving no place in western Texas—a very large area—to obtain an abortion. Women would have to travel at least 600 miles to get an abortion for any reason.

In a peculiar quirk, the bill’s sponsor, Jody Laubenberg (R) refused to support an exemption for rape because—ready for this?—she thinks that the rape kit, used to collect forensic data on the rapist for a prosecution, causes abortions. She said, “In the emergency room they have what’s called rape kits where a woman can get cleaned out.” Laubenberg has displayed an even greater ignorance then Congressional legislators.

Someone needs to explain to Laubenberg that this is the procedures for use of the rape kit. A victim enters the hospital; staff collect bodily fluid, residue under the victim’s nails, and any relevant blood or hair samples for an investigation. Nobody gets “cleaned out.” States with abstinence-only sex education, such as Texas, have highly uneducated people, even elected legislators.

A survey found that 63 percent of registered voters don’t want any more anti-abortion laws, and 71 percent think that the legislature should worry about the economy and jobs instead of policing women’s reproductive rights. Almost three-fourths think that personal medical decisions about abortions should be made by a woman and her doctor, not by politicians. Also, 57 percent said that they don’t trust the governor or the legislature to make choices about women’s health care. Eighty percent think that anti-abortion should not be legislated in special session. And this opposition is from both parties and the independents.

The Texas Assembly passed the bill at 10:40 am today. Legislative rules require a 24-hour wait until the Senate can bring it up. The Texas legislature has until tomorrow night to get the bill passed.

This last weekend, dozens of people stood in line in Atlanta to buy exclusive LeBron James sneakers. When a man carrying a gun harassed them, a man in line pulled his gun and fatally shot him. The shooter then got back in line to wait for his sneakers. Some of the people thought that he wanted to rob them. A witness said about the dead man, “Sounds like he brought it on himself.”

Nobody said anything the man being dangerous, just that it was okay to kill him. Police have said they will not be charging the shooter because it was “self defense.” No need to wound him or feel any remorse—just kill him. This is the gun culture of the United States. 

January 6, 2012

Elected Officials Fight Citizens United

In the 21st century everything gets named “super” from Coca-Cola to politics. Super-PACs are a fine example of the bloating that results from “super” things. Unleashed in early 2010 by the U.S. Supreme Court ruling of Citizens United v. Federal Election Commission, these monsters can raise and spend unlimited funding for candidates. Donors aren’t disclosed until after the presidential primaries or caucuses in early states.

Republican candidates may have approved of these in the beginning, but now some of them are beginning to whine about others’ advantages. Newt Gingrich, targeted by almost one-third of the over $14 million super-PAC advertising before the Iowa caucus, called on Mitt Romney to pull these ads in Iowa; Romney responded, correctly, that he cannot have anything to do with these super-PACs. (According to the ruling, a candidate can have no involvement in this advertising.) Then Gingrich, the man who wanted no negative campaigning on the Republican side, called Romney “a liar” on CBS’s Early Show.

People across the country are getting riled with the ruling. Montana, a state that may have anticipated the problems a century ago, passed a law in 1912 to fight Gilded Age corporate control over its government. The Montana Supreme Court has upheld this law that states, “[A] corporation may not make … an expenditure in connection with a candidate or a political party that supports or opposes a candidate or a political party.” States rights will come into play here because Citizens United overturned a similar federal statute when a majority of justices claimed that independent electoral spending by corporations “do not give rise to corruption or the appearance of corruption” that such laws were enacted to combat.

By a 5-2 vote, the Montana Supreme Court refused the ruling that Citizens United barring all laws limiting independent electoral spending. Chief Justice Mike McGrath cited the history surrounding the state law to show that corporate money, even if not directly contributed to a campaign, can give rise to corruption. Over 100 years ago, the ruling in Western Tradition Partnership v. Attorney General came during a time when Montana’s robber barons, the “Copper Kings,” so effectively politically and economically dominated the state that it lost its authority. According to Mark Twain, one Copper King “bought legislatures and judges as other men buy food and raiment.”

To reverse the Montana Supreme Court, the U.S. Supreme Court would, according to  Professor Rick Hasen of the University of California-Irvine Law School, have to have said something like, “We don’t care whether or not independent spending can or cannot corrupt; the First Amendment trumps this risk of corruption.” They didn’t, however, so the Justices will have to explain how the Montana Supreme Court was wrong to consider the factual record in justifying corporate spending limits in campaign finance laws.

The 2nd U.S. Circuit Court of Appeals took a similar stand when, in late December, it upheld a 2006 New York City law that, among other things, bans lobbyists from giving gifts to City officials and requires them to disclose all fundraising and consulting activities. Judge Guido Calabresi agrees that corporate expenditures need to be contained: “If an external factor, such as wealth, allows some individuals to communicate their political views too powerfully, then persons who lack wealth may, for all intents and purposes, be excluded from the democratic dialogue.”

Calabresi added that the desire for a functioning democracy “is, I believe, something that is so fundamental that sooner or later it is going to be recognized. Whether this will happen through a constitutional amendment or through changes in Supreme Court doctrine, I do not know. But it will happen.” Calabresi justified his ruling by saying, “Citizens United stated that mere influence or access to elected officials is insufficient to justify a ban on independent corporate expenditures, improper or undue influence presumably still qualifies as a form of corruption.”

A number of cities across the United States from New York to Los Angeles are requesting that Congress pass a constitutional amendment to overturn Citizens United. The New York City Council suggests that the amendment state  “that corporations are not entitled to the entirety of protections or ‘rights’ of natural persons, specifically so that the expenditure of corporate money to influence the electoral process is no longer a form of constitutionally protected speech.”

California lawmakers have introduced a resolution calling for Congress to “propose and send to the states for ratification a constitutional amendment to overturn Citizens United.” All this is following the large number of small towns that began to protest Citizens United months ago and the Occupy Movement protesters against this ruling.

At this time, the Supreme Court’s ruling that money is constitutionally protected free speech and corporations are legal persons entitled to these protections, will probably overturn Montana’s Supreme Court. That’s the reason that other political entities are taking a different approach.

According to the Constitution, 34 state legislatures can call for a constitutional convention which could create an amendment banning corporate funding from elections. A year ago this didn’t look possible because Republicans seemed to be the only ones benefiting from the misguided Citizens United ruling: now Republicans are hurting too.

Even beyond the very peculiar “free speech, personhood” piece of the ruling is the difference in rules for corporations and unions. According to Citizens United, both corporations and unions are allowed to spend freely on campaigns, but corporations are permitted to stockpile funds whereas unions are refused this provision for corporations. In addition, employees may opt out of funding union political activities, but shareholders are forced to participate in corporate political spending. The difference in treatment of the two groups is very likely unconstitutional, but the judicial branch determines constitutionality. So much for following the Founding Fathers’ wishes!

The advertising industry predicts as much as $4 billion in spending across all the campaigns, including those for president, Senate, House and governorships. Much of this will come from corporations.

In Citizens United, Justice John Paul Stevens wrote a 90-page dissenting opinion, arguing that “[t]he conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.” Stevens added, “[a]lthough they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office.”

According to Stevens, “Corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction. But they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”

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