Nel's New Day

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.

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