Nel's New Day

October 14, 2020

Barrett: Polar Opposite of RBG, Part I

This week Dictator Donald Trump (DDT) and the GOP Senators continued the process of packing the Supreme Court by trying to confirm Amy Coney Barrett, confirmed for the 7th Circuit Court in 2017 by a vote of 55-43. She has achieved even more notoriety than thought possible after DDT’s event at the White House to make the appointment is now called either the “super-spreader” or “The Rose Garden Massacre” for its vastly increase in White House COVID-19 cases.

Senate Judiciary Committee Chair Lindsey Graham (R-CA), who appeared to the hearing in person despite his refusal to be tested for COVID-19, opened yesterday’s session by saying the hearing is “to confirm Judge Amy Coney Barrett to the Supreme Court.” He views the committee’s vote as a done deal, not even pretending the hearing’s purpose is to consider the nomination.

The biggest disappointment among GOP senators was no Democratic mention of religion. GOP senators were ready for that topic but nothing else. Sen. Josh Hawley (R-MO) was so desperate to attack his Democratic colleagues for anti-Catholic bigotry he leaped on a comment from Sen. Chris Coons (D-DE) about Griswold v. Connecticut, the 1965 Supreme Court decision permitting married couples to buy and use contraception. Coons, a Catholic, said nothing about Barrett’s religion. No Republican attacked Sen. John Kennedy (R-LA) in 2017 when he asked Barrett about Griswold during her earlier confirmation hearing. She said she hadn’t thought about the case because she wasn’t born in 1965, and Kennedy responded:

“Okay. I am going to move on. I get it. I do not agree with the position you are taking where you will not talk to me about the law, but if that is what you are going to want to do, that is your call. It is America. It is a free country.”

Just three weeks before Election Day, Republicans aren’t at all bothered about Barrett’s ignorance regarding a major case for women’s reproductive rights. Asked about it again today, she again professed ignorance about the case.

Much of the GOP fear comes from exposure regarding Barrett’s membership in a fringe religious group called People of Praise, population 1,700. Colin Kalmbacher describes the group as “a right-wing ecumenical group centered on an amalgamation of Catholic scripture and charismatic practice with a male-dominated hierarchy that has been characterized as cult-like.” Like other Pentecostal groups, People of Praise members speak in tongues. Barrett’s history indicates she could be the farthest-right justice in a field of far-right high court members.

Barrett used what she called “the Ginsburg Rule” in refuse answers on vital issues—“no hints, no previews, no forecasts”—but the former Supreme Court justice did offer substantive views about some contentious topics, for example abortion. In 1993, Ruth Bader Ginsburg affirmed Roe v. Wade and said at her confirmation hearing:

“The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When Government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.”  

Barrett refused to answer if she agreed with her mentor, the late Justice Antonin Scalia that Roe v. Wade was wrongly decided. Barrett’s history, however, has left a trail of her opinions on issues of immediate concern. Several of these had been left off her questionnaire until the media uncovered them, with the possibility of trying to cover them up.

Anti-abortion:

  • Member of founding group of University of Faculty for Life at Notre Dame: voted “for a letter calling on the university to rescind an award given to then-Vice President Biden because of his beliefs on abortion”; promoted a South Bend (IN) crisis pregnancy center, a clinic misleading women seek abortions and pressuring them to continue their pregnancies with advertising pretending to help women get abortions.  
  • Signature on a 2006 anti-abortion advertisement demanding “an end to the barbaric legacy of Roe vs Wade.”  
  • Supporter of St. Joseph County Right to Life which believes life begins at fertilization, wants to criminalize the discarding of unused embryos created for the in vitro fertilization (IVF) process, and believes doctors who perform abortions should be charged as criminals.
  • Teaching anti-abortion groups at Notre Dame: lecture and seminar in 2013; talk on Roe v. Wade now “lost” by the university. 
  • Participation in dissent in Planned Parenthood v. Box (2019) about rehearing a case blocking an anti-abortion law before it took effect with the conclusion she would not block the anti-abortion law.

Anti-LGBTQ rights:  

  • Defense of the dissenters to Obergefell v. Hodges, the 2015 case legalizing marriage equality in a lecture at Jacksonville University and calls transgender women “physiological males.”
  • Signature of letter in 2015 including her belief about “marriage and family founded on the indissoluble commitment of a man and a woman.”
  • Recommendation of lawmakers’ review of Title IX rights for transgender people because “this kind of transgender bathroom access … does seem to strain the text of the statute to say that Title IX demands it.”
  • Devoted follower of late Justice Antonin Scalia’s approach who ruled against LGBTQ rights, including the overturned Texas sodomy.  
  • Board member of private school enacting a policy prohibiting students with unmarried parents, that includes same-gender couples at the time.
  • Hearing testimony: use of term “sexual preference” indicating it is a choice, and her experience with an anti-LGBTQ groups was “wonderful” including her links with Alliance Defending Freedom (ADF) supporting criminalization of consensual sex between LGBTQ adults. (She said she wasn’t aware of ADF’s attempts to criminalize LGBTQ people or repeal marriage equality, cited on its website.)

Voting/Gun Ownership Rights:

  • Past dissent opinion (Kanter v. Barr) that states can ban felons from voting but cannot ban them from owning a firearm. Barrett argued for restricting participation in political rights to people not deemed “virtuous.”  

Affordable Care Act (ACA):  

  • Author of academic article in 2017 criticizing Chief Justice John Roberts who wrote the majority opinion upholding the ACA.
  • Signature on petition protesting the ACA’s coverage of contraception.  
  • Denial that a majority opinion in the current Supreme Court case to erase the ACA would also erase pre-existing conditions.

Sen. Sheldon Whitehouse (D-RI) angered Sen. John Cornyn (R-TX) by tying him to the Senate’s rushing to put Barrett on the high court before hearing arguments to strike down the ACA on November 10.

“The district judge in Texas who struck down the ACA in the case now headed for the court is a former aide to the senator, who has become what the Texas Tribune calls the favorite for Texas Republicans seeking big judicial wins like torpedoing the ACA. The senior senator from Texas introduced in committee the circuit court judge who wrote the decision on appeal striking down the ACA.

“Sen. Cornyn has filed brief after brief arguing for striking down the ACA. He led the failed Senate charge to repeal the ACA in 2017. He has said ‘I’ve introduced and cosponsored 27 bills to repeal or defund Obamacare and I’ve voted to do so at every opportunity.'”

Republicans have tried to convince the public for two days of hearings Barrett wouldn’t dream of taking away their health care. Tuesday morning, Judiciary Committee Chair Lindsey Graham (R-SC) punctured that myth in his introduction, “All of you want to impose Obamacare in South Carolina — we don’t want it. We want South Carolina-care, not Obamacare.” He claimed the ACA was “a disaster for the state of South Carolina” and expressed outrage South Carolina got less money than some other states. He concluded that the issue “has got nothing to do with this hearing.”

The uninsured rate in Graham’s state dropped by more than one-third within the first three years of ACA. Eliminating ACA would uninsure hundreds of thousands in his state, and many more would lose current benefits and protections. Other states get more money because South Carolina refuses to take the Medicaid expansion which would insure more low-income families.

Senate Majority Leader Mitch McConnell (R-KY) claimed “no one” seriously expects the Supreme Court to tear down the ACA. Two weeks ago, DDT demanded that would happen. Sen. Chuck Grassley (R-IA) said at the hearing that Barrett would tear down the ACA because, as a mother of seven children, she understands the importance of health care. Her mentor, who had nine children, voted twice to destroy healthcare. Republicans voted 70 times to eradicate, and they surely had hundreds of children.

Nebraska’s Sen. Ben Sasse also didn’t do his homework. Accusing Democrats of using the ACA only for political purposes, he claimed that changing jobs is the Number One reason for being uninsured. Of uninsured nonelderly adults, 45 percent stated they were uninsured because the cost is too high, and another 13 percent said they had lost their Medicaid. Only 21 percent listed losing jobs or changing employees as a reason.  

With DDT’s case going to the Supreme Court on November 10, 57 percent disapprove.

Republicans know how unpopular their positions are. Only one-third of the people want to overturn Roe v. Wade, and over 60 percent favor marriage equality. To deflect the Democrats’ questions, GOP senators talk about Barrett’s darling family, her motherhood, and her impressive résumé. With them, however, the basic issue is getting her vote to put DDT back into the Oval Office and destroy conditions for workers. More later!

September 21, 2020

A View on RBG’s Replacement

“It’s Not Hypocrisy: Mitch McConnell’s Machinations Are Something Far More Degrading”—Lili Loofbourow, Slate  

I was watching the president of the United States suggest to a mostly maskless crowd that a Democratic congresswoman had married her brother when the news broke that Supreme Court Justice Ruth Bader Ginsburg had died. The shock of her death sledgehammered a country teetering on an ugly and desperate edge. It came in waves. It wasn’t merely the loss to the country, or the sadness that a champion of equal rights had died. Nor was it the fact that an increasingly corrupt Republican Party is very close to forcing through the judicial supermajority it needs in order to lock in minority rule and overturn American women’s right to reproductive choice. (You will no doubt hear often in the coming weeks that, of the five conservative Supreme Court justices, four were nominated by presidents who had lost the popular vote.) There was a flashback to the contempt and grief Brett Kavanaugh’s confirmation hearing aroused in so many appalled onlookers. And then there was the dread of realizing that a citizenry breaking—financially, politically, even cognitively—under five different kinds of instability was going to have to endure more. We have been in a bad way for a long time, but this is the hurricane on top of the wildfire that follows the earthquake.

What’s enraging is that we shouldn’t be here. We have institutions and norms and precedents, so what should happen next is almost absurdly plain. Senate Majority Leader Mitch McConnell made his thinking on the subject quite clear back in 2016, when Supreme Court Justice Antonin Scalia died in February, nine months before the election. “The American people‎ should have a voice in the selection of their next Supreme Court Justice,” he said. “Therefore, this vacancy should not be filled until we have a new president.” There shouldn’t have been any mystery about what Mitch McConnell—of all people—would do when a Supreme Court vacancy opened up six weeks (rather than nine months) before Election Day of 2020.

And there wasn’t. Shortly after Ginsburg’s death was announced, McConnell declared his intentions: Trump’s nominee would receive a vote in the Senate, and though he left the timing slightly unclear, he has no intention of letting the will of the American people (who have already started voting) determine what should happen. He made quick work of the optimists on Twitter suggesting that he surely wouldn’t be so hellbent on total power that he’d risk destroying the country by breaking the precedent he himself had articulated. Wrong. He would. And anyone who took him at his word when he rejected Merrick Garland’s nomination was made a fool when he reversed himself on the question of whether (to quote the man himself) “the American people should have a voice in the selection of their next Supreme Court Justice.”

I want to pause here to note, humbly, that it is wounding to watch a public servant reduce those who take him at his word to fools. I mention that not because it “matters” in any sense McConnell would recognize but because it is simply true that this nation’s decline accelerates when the conventional wisdom becomes that believing what the Senate Majority Leader says is self-evidently foolish. The chestnut that politicians always lie is overstated—a society depends on some degree of mutual trust. One party has embraced nihilism, pilloried trust, and turned good faith into a sucker’s failing in a sucker’s game.

Many of us are coping with that lacerating redefinition by knowingly rolling our eyes. Ginsburg’s death hurts, but more than one strain of political grief is operative. This is why so many political reactions at present seem to orbit around the question of whether an unwanted outcome was unexpected. “And you’re surprised?” is a frequent response to some new instance of Trumpian corruption. This brand of cynicism has spread, quite understandably: It’s an outlook that provides some cognitive shelter in a situation that—having historically been at least somewhat rule-bound—has one side shredding the rules and cheering at how much they’re winning. Folks who at one point gave Republican declarations of principle the benefit of the doubt (I include myself) feel like chumps now. Conversely, the cynical prognosticators who used to seem crabbed and paranoid just keep getting proven right. Whatever the worst thing you imagine McConnell doing might be, he can usually trump it.

Just by way of example: A former White House official told the New Yorker’s Jane Mayer for a piece in April that McConnell reassured donors that he would install a Supreme Court justice for Trump regardless of how close to the election Ginsburg’s death might be. He apparently referred to the prospect of replacing Ginsburg in the event of her death as “our October surprise.” In 2019, McConnell gleefully tweeted a photo of some tombstones, one of which had Merrick Garland’s name on it—hours after a mass shooting in El Paso, Texas, in which 23 people died. He has said that stopping Garland’s nomination is the proudest moment of his career. It’s uniquely painful that this is the person architecting Ginsburg’s replacement in violation of his own contemptible theories.

I am not saying anything new here. But what I am interested in, because I think it must be understood, and because the stakes of it have never been higher, is what McConnellizing does, affectively, to so many American citizens. What it feels like, in other words. We are overdue for a real reckoning with what it means to be degraded by our own leadership. And make no mistake: It is degrading when people lie to you openly and obviously. Leaving the polity aside for a moment, it’s the kind of emotion we humans aren’t great at coping with. Sometimes we react by snorting at anyone who expects any better (that is again the “you’re surprised?” cynicism). But if you can’t cover it with cynicism, it simply hurts.

Shall we experience being degraded together? Here is the justification McConnell offered shortly after Ginsburg died for violating his own rule:

In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.

This last sentence—which you will recognize as the heart of McConnell’s argument—is a lie. But before I supply the dull fact proving that it is a lie, I’d like us to pause and notice the extent to which whatever I am about to say will not factor into how you feel reading the above. Whatever I say, it will not provide you relief for me to demonstrate that this tortured reasoning McConnell supplied is horseshit. You are already meant to understand it as horseshit. That’s the insult. That’s where one part of what I guess we could call patriotic pain comes from.

OK, now for the dull facts: What McConnell says in that statement is not true. In 1988 (an election year!), the Democratically controlled Senate confirmed Anthony Kennedy—President Ronald Reagan’s nominee to the Supreme Court. McConnell tried to circumvent this reality by crafting his new rule to exclude any vacancy “that arose” in an election year (Lewis Powell retired in late 1987).

Does an exercise like this leave us anywhere? I think it might. I think we have a habit of misnaming political experiences in ways that help us metabolize loss. I think, for example, that we have a bad habit of calling McConnell’s double standard—which will be devastating to a country already struggling through various legitimacy crises—“hypocrisy.” And sure, step onto Twitter after Lindsey Graham also unabashedly went back on his own word and you’ll see many a person rolling their eyes at anyone pointing out that Republicans are hypocrites, as if it matters. One can sympathize with the eye-rollers—of course hypocrisy doesn’t matter. But that’s mostly because hypocrisy isn’t the word for what this is. Hypocrisy is a mild failing. It applies to parents smoking when they advise their kids not to for their own good; it does not apply to parents lighting the family home on fire for the insurance money while high-fiving each other over how stupid their fleeing children were for thinking anything they told them was true.

When Ginsburg died, those whose rights she championed were caught in a cruel double bind. Raging against the indecent replacement effort feels wrong, because raging before it happens can feel like implicitly conceding. Treating the matter dispassionately, on the other hand, sensibly pointing out that McConnell has stated clearly what should happen, means granting him a good-faith reading he does not deserve. Thanks to the swiftness with which he declared his intentions, we are no longer under any obligation to attempt the latter. All that remains is to let honest anger do what it must.

It will not help to call the leadership we have right now hypocrites; they will not care, and I doubt the charge will motivate the people who need to be motivated much. But insofar as our own reactions are concerned—and while we think about how to counter an obvious and ugly attempt to steal the Supreme Court seat of a feminist champion of equal rights even as Americans have already started voting—it may help to register the lies they tell you as the calculated insults to your intelligence and to your citizenship and to your country that they are. Fully witnessing and registering insults and degradation is more painful than sneering that you aren’t surprised. But I’ll be blunt: People are more willing to fight people who insult and degrade them than they are to fight mere “hypocrites.”

We deserve better than this. I confess I had no personal feelings about Supreme Court Justice Ruth Bader Ginsburg’s passing; my admiration and gratitude were purely professional and civic. But I found this quote—a response to Irin Carmon asking her how she’d like to be remembered—deeply moving: “Someone who used whatever talent she had to do her work to the very best of her ability. And to help repair tears in her society, to make things a little better through the use of whatever ability she has.”

September 18, 2020

A Nation Cries: Ruth Bader Ginsburg Dies

Filed under: Judiciary — trp2011 @ 10:08 PM
Tags: , ,

Today, September 18, 20202, Supreme Court Justice Ruth Bader Ginsburg died just 46 days before the presidential election on the first day of Rosh Hashanah. Ruth Franklin tweeted:

“According to Jewish tradition, a person who dies on Rosh Hashanah, which began tonight, is a tzaddik, a person of great righteousness.”

Called a “feminist icon,” Ginsburg fought for everyone’s rights. Her decisions from the bench were brilliant. One of them, for example, called for differential treatment between sexes not “create or perpetuate the legal, social, and economic inferiority of women”:

“Inherent differences between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity.”

Yet her writing could be easily understandable. In her dissent to the loss of voting rights in Shelby County v. Holder, Ginsburg wrote:

“Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

In an obituary for Ginsburg, Linda Greenhouse describes Ginsburg’s life and long career, including several of her important rulings.

Ginsburg was dubbed the Notorious R.B.G. in her later years as young women wore costumes representing her and had tattoos of her image. As Yasmir Omar wrote in Harper’s Bazaar wrote in 2019, “she courageously stands her ground in the face of sexism, battling aggressions both micro and macro.”

Throughout the evening, a crowd has gathered at the Supreme Court building in mourning. 

After Ginsburg’s death, the GOP leadership showed little feeling. Told about her death after his Minnesota rally, Trump said, “She just died? I didn’t know that,” before he called her “amazing.” Senate Majority Leader Mitch McConnell (R-KY) first response was that the Senate would be voting on a Trump nominee.

In addition to the GOP lack of empathy for Ginsburg’s death, Republicans are on their way to overwhelming hypocrisy. When Justice Antonin Scalia died 11 months before the end of President Obama’s second term, McConnell rejected the nomination of Justice Merrick Garland for the position. GOP senators didn’t even give Garland the courtesy of meeting with a nominee who was so conservative that Democrats were concerned about putting him on the high court. In 1996, McConnell explained the policy he had just created:

“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”

In 2018, Sen. Lindsey Graham said:

“If an opening comes in the last year of President Trump’s term and the primary process has started, we’ll wait to the next election. Hold the date.”

Not only did the primary process start over seven months ago, but people have also started voting in the general election. Graham said the same thing two years earlier when he rejected Garland in 2016.

Other senators drew the same line in the sand, calling for voters to decide in November. Graham and McConnell are up for reelection along with the names with asterisks, and some of them face the possibility of losing:

  • *Cory Gardner (CO)
  • *John Cornyn (TX)
  • Ted Cruz (TX), on Trump’s replacement list for Ginsburg
  • *Lindsey Graham (SC):
  • Marco Rubio (FL)
  • *Jim Inhofe (OK)
  • Chuck Grassley (IA)
  • *Joni Ernst (IA)
  • *Thom Tillis (NC)
  • *David Perdue (GA)
  • Tim Scott (SC)
  • Ron Johnson (WI)
  • Pat Toomey (PA)
  • Richard Burr (NC)
  • Roy Blunt (MO)
  • Rob Portman (OH) 

McConnell can afford to lose only four votes in a confirmation, assuming that VP Mike Pence breaks a tie of 47 Democrats plus three Republicans. Martha McSally (R-AZ) was appointed, and her potential loss to a Democrat would mean her opponent would be seated immediately after the November election. Other Republican senators are coming out to oppose McConnell’s position: Lisa Murkowski (AK) said the election is too close to confirm a justice; Susan Collins (ME) said, “That’s too close”; Chuck Grassley (IA) said there should be different rules for Republican and Democratic presidents; Cory Gardner (CO) said the person elected in November should decide; and Mitt Romney (UT) occasionally makes principled decisions.  

When Ginsburg grew up and went to school, women had far fewer rights. We think first about our inability to get legal abortions, but the list goes far beyond that: we could be turned down for jobs because we are female, be denied the right to sit on a jury despite the constitutional right of “jury of peers”; and refused the right to obtain birth control and equal wages. No-fault divorce and damages for sexual harassment in the workplace didn’t exist until the 1980s. Married women couldn’t even get credit cards under their own name in the middle of the 20th century. And women couldn’t legally marry other women in the entire U.S. until 2015. Now Republicans are stripping rights from not only women but minorities, immigrants, and anyone else who isn’t a white U.S.-born male.

In normal times, people would have a few day to mourn the loss of a brilliant jurist, but normal times ended almost four years ago. With the possibility of another radical right nominee turning the Supreme Court to a 6-3 highly conservative decision-making body, controlling all the laws of the nation, we have little time to mourn Ginsburg. We need to keep fighting! Justice Ruth Bader Ginsburg would understand that.

Omar wrote:

“Ruth Bader Ginsburg is indomitable: she persevered when men tried to hold her back and went on to change the world for the better.”

We can follow her example for all people.

October 18, 2014

Supreme Court Decision on Texas Voting Rewards GOP Candidates

About 600,000 Texans won’t be voting in Texas on November 4, thanks to today’s Supreme Court ruling. At least five nine justices voted to permit the voter photo ID law to be in effect on that day. A federal judge had struck down the law last week, but the 5th Circuit Court put the lower ruling on hold, leaving the law in effect. After an appeal, the highest court ruled, without comment and indication of how justices voted, to agree with the circuit court. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan dissented, saying they would have left the district court decision in place allowing people to vote.

Ginsburg wrote:

“The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters.”

In her 143-page opinion, U.S. District Judge Nelva Gonzales Ramos called the law an “unconstitutional burden on the right to vote.” She found the law a deliberate discrimination against the state’s minority voters and described the requirement an equivalent to a poll tax. Ginsburg said that a full trial in district court found that the law was “enacted with a racially discriminatory purpose and would yield a prohibited discriminatory result.”

Ramos also wrote:

“Based on the testimony and numerous statistical analyses provided at trial, this Court finds that approximately 608,470 registered voters in Texas, representing approximately 4.5% of all registered voters, lack qualified SB 14 ID and of these, 534,512 voters do not qualify for a disability exemption.”

The rationale from the majority of the Supreme Court for leaving the law is that it would inconvenience those running the election because it is so close to Election Day. According to the current majority of the Supreme Court, it’s better to stop a minor inconvenience than allow over one-half million people to vote.

Regarding the majority opinion, Ginsburg wrote:

“There is little risk that the District Court’s injunction will in fact disrupt Texas’ electoral process. Texas need only reinstate the voter identification procedures it employed for ten years [from 2003 to 2013] and in five federal general elections.”

Ginsburg echoed Ramos’ findings:

“The potential magnitude of racially discriminatory voter disenfranchisement counseled hesitation before disturbing the District Court’s findings and final judgment. Bill 14 may prevent more than 600,000 registered Texas voters (about 4.5% of all registered voters) from voting in person for lack of compliant identification. A sharply disproportionate percentage of those voters are African-American or Hispanic.”

She added that “racial discrimination in elections in Texas is no mere historical artifact. To the contrary, Texas has been found in violation of the Voting Rights Act in every redistricting cycle from and after 1970.”

Texas officials tried to justify their actions by claiming that all eligible voters are able to get a photo ID. Ginsburg, however, pointed out that any cost of getting the mandated ID, even $2, is an unconstitutional barrier to voting. She wrote in her dissent:

“For some voters, the imposition is not small. A voter whose birth certificate lists her maiden name or misstates her date of birth may be charged $37 for the amended certificate she needs to obtain a qualifying ID. Texas voters born in other States may be required to pay substantially more than that.”

Over two-thirds of eligible voters may have to travel three hours or more round-trip to the nearest government office where they can get photo IDs and need a certified birth certificate costing $22, according to Ginsburg. Although the state offers one for $2 or $3 that is used only for election purposes, it has not publicized this option on election or birth certificate websites.

Ginsburg pointedly added:

“Racial discrimination in elections in Texas is no mere historical artifact. To the contrary, Texas has been found in violation of the Voting Rights Act in every redistricting cycle from and after 1970.”

Attorney General for Texas, Greg Abbott, has vigorously fought for the photo ID law that keeps minorities, largely assumed to be Democrats from voting in this year’s election. Abbott is also the GOP candidate for governor.

This was the first time in over 30 years that the Court has allowed enforcement of a law restricting voters’ rights after a federal court ruled it to be unconstitutional because it intentionally discriminated against minorities.

A new study by two University of Delaware professors and a Pennsylvania high school student found that white people are more likely to support photo IDs laws after being shown a picture of a black voter than when they see a picture of a white voter. Black and Hispanic respondents were about equal in their support or opposition to a photo ID law no matter what person was in the picture. This research matches studies showing that whites are more likely to support harsh criminal justice policies if they see pictures of or hear statistics about black prisoners. In 2012, the Brennan Center for Justice found that blacks and Hispanics are less likely to have photo IDs than a cross-section of people in the United States.

None of the courts ruling on photo ID this month has addressed the issue on a constitutional basis. That will happen after this year’s federal election. The question is whether courts will permit the laws if there is no basis for them. With cases of voter fraud being one in every 14.6 million people in the U.S., there is no reason for such draconian laws. The question is whether legislatures can pass laws to cover problems that don’t exist. If the Wisconsin legislature says witches are a problem, shall Wisconsin courts be permitted to conduct witch trials?” asked Judge Richard Posner, who wrote the dissent in the 5-5 decision for the 7th Circuit Court. After a three-judge panel held that the Wisconsin photo IDs for voting could go into effect, Posner asked for the entire court to hear the case. The court ruled 5-5, meaning that the panel’s decision, which the Supreme Court later overturned, stayed in effect.

Posner also pointed that the Supreme Court had once ruled in favor of photo ID for voters because they supposedly increased voters’ confidence in elections. Studies, including a Harvard Law Review study, refutes the idea that photo ID laws promote public confidence. It revealed that “perceptions of voter-impersonation fraud are unrelated to the strictness of a state’s voter ID.” When Commonwealth Judge Bernard L. McGinley struck down Pennsylvania’s photo ID law, he determined that “implementation of the voter ID law in a manner that disenfranchises qualified electors will undermine the integrity of elections.” In short, these oppressive laws erode confidence in the voting system.

Voting laws across the nation vary greatly. Ohio’s constitution prohibits “idiots” from voting. Casting your ballot in Alabama can’t take longer than five minutes. Texas will let you vote with a gun license but not a student ID. Some people in Arizona can vote for federal candidates but not state ones if they lack the appropriate ID. Thirty-three states have restrictions on voting with new ones in 22 of these. Almost half the country will have a much harder time in trying to carry out their constitutional right in 17 days than four years ago.

Four years ago, when the Tea Party took over the House, it was seen as a mandate from the people. This year, any conservative votes can be seen as the control of GOP legislators and GOP-leaning judges. And the control of the white people.

September 29, 2014

SCOTUS: Future, Ginsburg Criticisms

Filed under: Elections,Judiciary — trp2011 @ 8:34 PM
Tags: , , ,

On the first day of the U.S. Supreme Court’s new session, and the conservative justices are already voiding citizens’ rights, temporarily stopping early voting in Ohio which was scheduled to begin tomorrow. The 5-4  vote to reverse a federal appeals court decision stays in effect until SCOTUS acts on the state officials’ appeal, which has not yet been formally filed. If that is denied, the order lapses. The order could also mean that early voting will not be permitted on most Sundays and after 5: pm, perhaps the only time that low-income people can vote.The ruling may also suppress the vote in Arkansas, North Carolina, Texas, and Wisconsin. (The five conservative justices from left to right: Roberts, Scalia, Alito, Thomas, Kennedy)

supreme court justices What other damage can the conservative Court do in the current session? Ian Millhiser and Nicole Flatow identify major cases and issues for this term:

Pregnancy Discrimination: UPS refused to put Peggy Young on “light duty,” not lifting over 20 pounds, after she got pregnant although the company would have permitted this if she had broken her arm. The 4th Circuit Court of Appeals supported UPS, but even pro-life groups object because the decision might cause women to get abortions. The Pregnancy Discrimination Act prohibits employers from treating pregnant women differently from other employees who are “similar in their ability, or inability, to work.” Considering the SCOTUS ruling against Lilly Ledbetter’s fair pay lawsuit, pregnancy women are likely to lose.

Racial Gerrymandering: One judge called the method for Alabama’s redrawn legislative districts as “naked ‘racial quotas’” because black voters were packed into a few districts. Considering the Court’s history against voting rights, black voters are likely to lose.

Facebook and the First Amendment: In Elonis v. United States, plaintiff Anthony Elonis threatened to kill his wife on social media: “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave. I used to be a nice guy but then you became a slut. Guess it’s not your fault you liked your daddy raped you. So hurry up and die, bitch, so I can forgive you.” The wife saw the comments as threatening, but Elonis said he didn’t mean them literally and called it art. A lower court ruled that his words were a “true threat,” but pro-life groups and anti-abortion protesters claim that an objective standard infringes on the First Amendment right to protest.

Religious Liberty in Prison: Abdul Maalik Muhammad is considered a dangerous prisoner. He wants to grow a beard because of his religious beliefs, but Arkansas officials claim that a beard could conceal contraband or weapons.

Israel and Palestine: For almost seven decades, the U.S. has been neutral about Jerusalem as an international city until Congress passed a law in 2002 that passports can list Israel as the birthplace for U.S. citizens born in Jerusalem. Both Presidents George W. Bush and Obama refused to invoke the law because it interferes with the president’s exclusive authority over American foreign policy.

Cops Apprehending People by Mistake:  North Carolina troopers pulled over Nicholas Heien for having a broken tail light and found cocaine when they searched the car. Because having just one non-working tail light isn’t a state law violation, Heien claimed that the search was invalid because the police had no basis for stopping him. The state Supreme Court upheld the search by 4-3.

Marriage Equality: The question is whether SCOTUS will take a case in which all the federal appeals courts have agreed.

Hobby Lobby Redux: After SCOTUS laid a minefield across the country by ruling that a business can be “religious,” it may feel the need to clarify how far businesses can go to eliminate workers’ ability to obtain birth control coverage—or to commit any other illegal behavior.

Abortion: Several cases on TRAP laws, sham health regulations to restrict access to abortion, are in the federal court system. In its last term SCOTUS agreed to hear a case concerning whether a state may enact a law that restricted access to medication abortion. The Court dismissed the case before reaching the merits. With many new anti-abortion laws at the state level, SCOTUS may tackle the issue.

Affordable Care Act: The federal courts currently have consensus in accepting ACA after the decision of two judges ruling against the health care law were withdrawn because the full appeals court decided to hear the case. Politics, however, may cause the four conservative judges to take on a case in this area.

At least one of those four judges, possibly Chief Justice John Roberts, may realize that taking on cases without federal court dissension opens up the Court to further charges of putting politics before the law and diminish the prestige of the highly unpopular court. In his confirmation he promised promising an age of apolitical comity. “It’s a high priority to keep any kind of partisan divide out of the judiciary as well,” Roberts said.

As Garrett Epps wrote in The Atlantic: 

 “The Supreme Court’s 2013 term began with oral argument in a divisive, highly political case about campaign finance and concluded with two 5-4 decisions of divisive, highly political cases, one about public-employee unions and the other about contraceptive coverage under the Affordable Care Act. In all three cases, the result furthered a high-profile objective of the Republican Party. In all three cases, the voting precisely followed the partisan makeup of the Court, with the five Republican appointees voting one way and the four Democratic appointees bitterly dissenting. In all three cases, the chief voted with the hard-right position. By the end of the term, the polarization Roberts had seen in the nation had clearly spread to the Court.”

Ruth Bader Ginsburg has become more and more open in her dissatisfaction of her Court. In an interview with Jeffrey Rosen for The New Republic, she discussed a wide variety of topics:

On differences if Justice Sandra Day O’Connor had stayed on the Court: “She would have been with us in Citizens United, in Shelby County, probably in Hobby Lobby, too…. I think she must be concerned about some of the Court’s rulings, those that veer away from opinions she wrote.”

Regarding former Chief Justice Rehnquist and Roberts: “As to [Roberts’] decisions, there’s not a major shift. I’m hoping that as our current chief gets older, he may end up the way Rehnquist did when he wrote for the Court upholding the Family and Medical Leave Act. That’s a decision you wouldn’t have believed he would ever write when he joined the Court in the early 70s. Chief Justice Rehnquist also decided that, as much as he disliked the Miranda decision, it had become police culture and he wasn’t going to overrule it.”

Regarding the 60 percent of the cases that were unanimous: “That figure is deceptive because of the disagreement among people who joined the ultimate judgment. In some of the leading cases, those disagreements were marked. For example, the recess-appointment case. The Court was unanimous that Obama’s appointments to the NLRB [National Labor Relations Board] were invalid, but divided on the first two questions posed in that case: Does the president have the authority to exercise the recess power when Congress takes an intra-session recess or only when the recess occurs between sessions of Congress? The second question was, when must the vacancy occur? Must it occur during the recess? Or can the president fill up vacancies that existed before the recess? Those are questions of major importance and the Court divided sharply on the answers.”

Worst ruling of the current Court: “If there was one decision I would overrule, it would be Citizens United. I think the notion that we have all the democracy that money can buy strays so far from what our democracy is supposed to be. So that’s number one on my list. Number two would be the part of the health care decision that concerns the commerce clause. Since 1937, the Court has allowed Congress a very free hand in enacting social and economic legislation. I thought that the attempt of the Court to intrude on Congress’s domain in that area had stopped by the end of the 1930s. Of course health care involves commerce. Perhaps number three would be Shelby County, involving essentially the destruction of the Voting Rights Act. That act had a voluminous legislative history. The bill extending the Voting Rights Act was passed overwhelmingly by both houses, Republicans and Democrats, everyone was on board. The Court’s interference with that decision of the political branches seemed to me out of order. The Court should have respected the legislative judgment. Legislators know much more about elections than the Court does. And the same was true of Citizens United. I think members of the legislature, people who have to run for office, know the connection between money and influence on what laws get passed.”

Overturning Roe v. Wade: “Women who can’t pay are the only women who would be affected…. It will take people who care about poor women… There is no big constituency out there concerned about access restrictions on poor women.”

About her dissents: “Sometimes one must be forceful about saying how wrong the Court’s decision is.”

The full interview is here.

August 3, 2014

Hobby Lobby Won’t Go Away

The memory of most Supreme Court rulings fade fairly fast, but the Hobby Lobby decision is still in the media more than a month after the Supreme Court eroded women’s reproductive rights by declaring that corporations have religious rights. A prediction that the ruling might lead to dire circumstances is beginning to bear fruit:.

The Satanic Temple is seeking religious exemption from laws restricting access to abortions, which violate its members’ religious freedom. The basis for their argument is Alito’s statement that religious beliefs can trump scientific fact. When the Religious Freedom Restoration Act (RFRA) was passed in the early 1990s, far-right Christians were afraid that women’s rights to plan their families might be considered a matter of religious conscience.” The Supreme Court has thrown the door open for this argument.

People shouldn’t have to pay student loans. Interest in the Bible is usury and considered sinful, and all debts must be forgiven every few years in the “Year of Jubilee,” according to the same source. Christians following the Bible shouldn’t be forced to pay interest or return the money after the few years.

Members of the Alabama Public Service Commission have called on the public to pray to God for protection from the new EPA limits on carbon emissions from coal-fired power plants. Member-elect Chip Beeker asked, “Who has the right to take what God’s given a state?” They might be able to sue for relief under the Hobby Lobby sincerely-held religious belief. Arguments from religious beliefs on the opposite side could be that God wants people to be healthy.

The IRS is required to enforce rules banning pastors from endorsing candidates from the pulpit after the Freedom from Religion Foundation won its lawsuit. Although advocating for candidates in church is against the law, the IRS wasn’t stopping the practice. Unfortunately, the court decision in favor of FFRF won’t go into effect immediately because of a current moratorium on any IRS investigations of any tax-exempt entities. Pastors could avoid the law by claiming that churches are only using their “sincerely-held” religious beliefs to campaign for—or against—candidates.

After President Obama announced that he was requiring federal contractors to end job discrimination against LGBT people, religiously affiliated institutions came out of the woodwork, asking for religious exemptions. President Obama declared no exemptions except for the religious exemptions that George W. Bush had earlier allowed. Bush hadn’t included corporations in his exemptions. Yet the president’s order could be overturned for “religious” for-profit corporations because of Hobby Lobby.

Sara Hellwege is suing the Tampa Family Health Centers (TFHC) for not giving her a job interview after she told them that she would not prescribe any hormonal contraction. She claims that the women’s clinic is discriminating against her on the basis of her religion. Hellwegg is demanding $400,000 in damages, $75,000 in fines, and forfeiture of all federal funding until the company stops discrimination—evidently against people who won’t perform the job’s duties.

A  lawsuit on behalf of two prisoners at Guantanamo Bay claims that a definition of corporations as people with religious rights extends to Gitmo detainees. Ahmed Rabbani of Pakistan and Emad Hassan of Yemen were prevented from attending communal Ramadan prayer because they were on a hunger strike. Two earlier D.C. Circuit decisions had ruled that Guantanamo Bay detainees are not “persons” under RFRA protection. If Hobby Lobby can exercise religious beliefs under RFRA, then so can these two men, according to their lawyers.

The U.S. Department of Education has continued to grant exemptions to “Christian” universities, allowing them to discriminate against transgender students. According to Title IX, schools cannot receive federal funds, including public student loans and Pell grants, if they discriminate against transgender and gender-nonconforming students—unless they’re religious like George Fox University, Simpson University, and Spring Arbor University. Simpson, for example, cannot “support or encourage” an individual who lives in “conflict with biblical principles.” Spring Arbor has been given permission to discriminate against unwed mothers and punish students for dating someone of the same gender. For-profit corporations will surely want the same “religious” rights as these universities.

These are just a few of the “unintended consequences” that Justice Ruth Bader Ginsburg referred to in her dissenting opinion. Speaking about the case in an interview with Katie Couric, Ginsburg said that the five men who ruled against women’s rights have a “blind spot” about women’s issues and that they didn’t understand “the ramifications of their decision.” Anyone who considers that these consequences are impossible should consider that people said the same thing about a favorable ruling for-profit corporations in Hobby Lobby.

Justice Samuel Alito’s ruling that the Hobby Lobby is a “person” comes from the 1871 Dictionary Act that tried to simplify constitutional language. The statement that such terms as corporations and companies come under the umbrella of “person” was limited by the statement “unless the context indicates otherwise.” Alito’s ruling combined this act with RFRA, but the exemptions in the RFRA are defined as one that “holds itself out as a religious organization.” Hobby Lobby is not a religious organization: it sells crafts.

RFRA was legislated to protect employees, not employers. It was initiated because of an employer’s prejudice against a non-Christian religion. SCOTUS turned the protection on its head, protecting Christian employers against all employees Christian and non-Christian. An actual human person doesn’t have the ability or right to force everyone around him to abide by the restrictions of his religion, even if those people work for him. but it seems that Hobby Lobby does. By allowing closely held corporations to take on a religious identity, Alito has allowed their owners to impose their religions on the people who work for them.

Ginsburg wrote in her Hobby Lobby dissent:

“Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community.”

The Hobby Lobby decision is more about ensuring that women will maintain a subservient position in U.S. culture as summarized in Erick Erickson’s tweet: “My religion trumps your ‘right’ to employer subsidized consequence free sex.” The “consequence” of “free sex” for women can be loss of jobs, loss of education, loss of financial security—in short, loss of everything. Even Hobby Lobby fired a pregnant woman. Men, on the other hand, have no consequence from “free sex.”

Although contraception could put women on a more equal footing with men, the Supreme Court forces many women to buy their own contraception. Hobby Lobby objected to only four types of contraception, but the five male justices “protected” corporations from having insurance for all 20 forms of FDA-approved contraception. When men have “free sex” and women have to pay for it, men retain their power over women.

After the Hobby Lobby decision, male conservatives spent a great deal of time salivating about the thought of all those “slutty” women who were restricted in their access of contraception. Sen. Mike Lee (R-UT) complained about women using birth control to protect themselves from “recreational behavior.”

Not one of these misogynists mentioned protecting women from uterine cancer or ovarian cysts or anemia or endometriosis or other health problems needing hormonal medication.

As Ginsburg stated, Hobby Lobby begins the practice of preferring some religions over others. Now justices will be “evaluating the relative merits of differing religious claims” and “approving some religious claims while deeming others unworthy of accommodations.” The website for The Becket Fund shows a current list of litigants already taking advantage of Hobby Lobby. These cases have a high cost—women paying a minimum of millions for contraception and taxpayers paying billions for court cases.

The only ray of hope is that Justice Alito decided the case on the basis of a Congressional statute. If the ruling had been constitutional, it could be changed only by a constitutional amendment. As it stands, Congress can fix it by defining “person” and “exercise of religion” in RFRA. With our current dysfunctional and religious-conservative Congress, this ray is only a glimmer.

Sens. Patty Murry (D-WA) and Mark Udall (D-CO) introduced a bill called “Not My Bosses’ Business Act” to prevent for-profit businesses from dropping birth control coverage. Republicans blocked the bill with only GOP Sens. Lisa Murkowski (AK), Mark Kirk (IL), and Susan Collins (ME) voting to move the bill forward. The American Congress of Obstetricians and Gynecologists supported the bill to override the Hobby Lobby decision.  A professional physicians’ association with more than 55,000 members, the group represents 90 percent of board-certified U.S. gynecologists. Their statement explained that “a woman’s boss has no role to play in her personal health care decisions.”

Wooing women with obfuscation, the GOP plans to sponsor a bill stating “no employer can block any employee from legal access to her FDA-approved contraceptives.” Birth control is already legal: Hobby Lobby is about the right of for-profit companies to deny contraception through its insurance.  With the federal government not moving ahead on women’s reproductive rights, states may begin initiating nullification laws against the Hobby Lobby decision.

In the future, a more reasonable Congress might decide that women should have equality in the United States. It’s better than waiting for a constitutional amendment like Citizens United demands.

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