Tag Archives: court

MAJORITY AIN’T WHAT IT USED TO BE

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Now that the Senate has voted for cloture on the stimulus, I gotta say it’s striking how the goalposts have moved in terms of what the media consider a majority out of 100 senators. The dominant sense you’d get from following mainstream media coverage of the debate is that 61 Senators is the cut-off for a Senate majority, and if Obama’s initiatives don’t make it past that post he hasn’t garnered that much support (and he isn’t really that bipartisan). That’s not how I remember things being covered during the Bush administration, when the same talking heads did their talking about the filibuster as though it was an extreme measure.

Put differently, with a Republican in the White House the onus was on Democrats to justify why anything would be worth a filibuster; with a Democrat in the White House, the onus is on Democrats to scare up 61 votes.

When John Kerry talked about filibustering Sam Alito’s Supreme Court nomination (which, compared to the stimulus package, is also far-reaching in impact but most would agree was less time-sensitive to get done), that was covered as an antic from the fringe. But amidst the veneration of Olympia Snowe and Susan Collins, the starting assumption seems to be that the very most moderate members of the Senate GOP Caucus by default will filibuster the President’s bill unless they get to rewrite it.

Is this an unfair comparison? And if not, then do we blame the media, or blame the Democrats for having lacked the parliamentary-style party discipline to better control the media narrative?

That said, I don’t think there’s much evidence that the public cares terribly much about what Nancy Pelosi rightly called “process arguments” – who’s obstructing who, who’s more bipartisan, etc. And the latest polling suggests that as with the Presidential election, the GOP may be capturing media cycles without capturing voters. Another reason to hope the Conference Committee leaves the Nelson-Snowe crew with a token accomplishment or two but otherwise churns out the bill best designed to actually stimulate the economy – whose success or failure is what voters will actually remember a year from now.

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FUN WITH COLLECTIVE BARGAINING

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Kay Steiger, guest-blogging (with Alyssa) at Matt Yglesias’ site, considers sexism in “trade professions” and after pointing out that jobs like hair dressing aren’t counted as such precisely because women do them, suggests that

What would help is first what these truck mechanics Harding points to are already doing, mentoring young women in non-traditional fields. Secondly, unions that represent those industries need to not only be free of sexism themselves, but aggressively pursue lawsuits that would discourage sexual harassment. This is happening with some larger trade unions already, but it’s not as wide as it should be.

I think this really sells short the potential for trade unions to take on discrimination. Any kind of organization with the resources can file a lawsuit – or individuals or groups can do it with no organization at all. In some cases, like the Dukes suit against Wal-Mart (largest class action suit ever in this country), that can contribute greatly to leveraging pressure on a company. But workers with a union can change the behavior of their employer in a slew of other ways. That includes negotiating with them.

Union workers can and do win binding contracts obligating companies to take on unequal opportunity by creating training programs, by collaborating with community leaders and/ or non-profits, by submitting to oversight by workers, clergy, politicians, or whoever else to judge progress, to change work rules or job descriptions that create needless barriers for people who could otherwise do the job – and in any number of other ways. And these workers can enforce these commitments, as well as the company’s legal obligation not to discriminate, through collective action and through a grievance process that moves faster, cheaper, and more accessibly than a lawsuit. The limits are defined by power on the shop floor and nationally or internationally in the industry.

As Thomas Geoghegan wrote last year in his book See You in Court,

a big change has been the way we have moved from contract to tort. For most working Americans, the kind of people I represent, this accounts for the biggest change in the way the law now impacts their lives. In the 1950s and 1960s, up to 35 percent of workers, especially men, were covered by collective bargaining agreements…In the last thirty years, there has been a loss of contract rights – to a job, a pension, or even health care – unlike that in any other developed country. It is really a new legal regime that many Americans experience as infuriating, without being able to express that fury in an appropriate way.

Now the missed opportunities within substantial chunks of the labor movement to link arms as part of movements for sexual and racial inequality in the twentieth century is not unrelated to the steep decline in union power and union membership. But those workers Kay is talking about, who have unions, have an arsenal at their disposal to attack discrimination in the workplace – not only through contract language of course, but also through the kinds of action, client pressure, media strategies, and such that play part in winning recognition and winning contracts – without depending on the prospects of a lawsuit.

DISTINGUISHING

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I have to believe Frank Rich knows better than this:

Even leaving aside the Giuliani record in New York (where his judicial appointees were mostly Democrats), the more Democratic Senate likely to emerge after 2008 is a poor bet to confirm a Scalia or Alito even should a Republican president nominate one. No matter how you slice it, the Giuliani positions on abortion, gay rights and gun control remain indistinguishable from Hillary Clinton’s.

Look, I like to gloat as much as the next guy, but let’s not do it at the expense of reality. And Rudy Giuliani has indeed gotten more traction than many (myself included) thought he ever could, despite James Dobson et al’s significant discomfort with him. But he’s not a pro-choice candidate (he’s not a pro-gay rights or pro-gun control candidate either). He believes abortion is immoral, and he’s made it clear to anyone who’s paying attention that he’ll appoint judges who will make abortion illegal. The intermediate question of whether he has nice things to say about laws banning abortion is a detail (he’s also reversing himself on laws that make it more difficult for women to access the right to choose). While the Senate on a good day can hold back particularly crazy nominees, the only people who come their way for confirmation are the ones the president sends over. And in case you haven’t noticed, drafting strategies on how to overturn Roe isn’t enough to deny you confirmation votes from Democrats.

MONEY, IT’S A HIT

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Something else about Lieberman-Lamont: Their race brings together two of the less popular archetypes in American public life: the incumbent creature of Washington and the guy with more money than God.

That’s not a coincidence.

Under the “one dollar, one vote” system undergirded by the “money is speech” regime set forth in Buckley, the ability to raise and spend money ranks high on the already frightful list of institutional advantages held by incumbents. The ability to raise money is the first mark of legitimacy in the eyes of the media and political establishments who too often serve as gatekeepers between would-be challengers and the attention of the electorate. Ostensibly liberal people pledge fealty to the doctrine that serious candidates should be able to raise serious money.

Some millionaire candidates, of course, fail spectacularly. Some spend enough of their dough to leave the incumbent at a significant spending disadvantage. Some do both.

But wherever one comes down on what we should or shouldn’t assume about millionaires’ character and suitability to represent us, the difficulty of unseating an incumbent without being one should concern us.

GO TO THE PRINCIPLES, OFFICE?

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A few days ago, Matt Yglesias made the point that all the talk about how principled Joe Lieberman’s hawkish votes have been should make us think less of principled votes qua principled votes rather than more of Joe Lieberman. Ben Adler, echoing Matt’s point that how elected officials vote should concern us more than why they do, questioned why Matt sees people who call for censorship in order to get votes as any less blameworthy than the ones who call for censorship on principle.

The right, incidentally, deploys both the “Don’t worry, he doesn’t believe it” and “But those are his principles” arguments to great effect to shield its politicians from criticism, depending on which one fits best at the time. The best contemporary examples come to mind around gay rights. Every time a current or historical anecdote emerges about George W. Bush being personally other than hostile towards someone he knows is gay, Bush apologists seize on the story as proof that imputing intolerance to the man just because he pushes policies that make gay folks second-class citizens is the real intolerance. Meanwhile, when Republican judicial nominees are questioned about their records on protecting the rights of gay folks, conservatives pillory the questioners for trying to punish their principles – and being “anti-Catholic” to boot.

Matt responded to Ben that the politicians who hold bad positions on principle are more likely to push them forward in political discourse rather than simply voting for them. Call me cynical (and I’m younger than either of them), but while it’s probably the case all things being equal that politicians devote more energy to the positions closest to their hearts, all things tend not to be equal, and there are a fair number of examples out there of politicians taking stances that seem to have more to do with their sense of political reality than their sense of ethical imperative and then do whatever they can to highlight those issues and those positions.

But testing that hypothesis would require devoting more energy to divining the secret motivations of our elected officials, which only reinforces the narrative of political change as personal psychodrama rather than clash of collective actors. It reinforces the “Great (Elected) Man” theory of history to which too many progressives fall prey, in which progress comes from getting the right visionary leader into office and then keeping him there. Speculating about what Bill Clinton really thought of throwing moms in vocational training off of welfare or denying full faith and credit to same-sex couples makes for good copy and good conversation. But we’re both better equipped and more responsible to consider whether he was right to make those moves, and under what structural circumstances they might not have been as appealing.

Of course when elected officials do the right thing I’d rather think that they believe in it too (if a politician also, say, calls for an end to poverty in hopes of getting elected President, then that sure beats executing a mentally disabled man in order to get elected President). But I’ll choose which Senators to vote for based on how they’ll vote, how they’ll shift which issues capture political discourse and what the margins of that discourse are, and how they’ll affect the partisan breakdown of the body. That said, Lieberman’s people know what they’re doing with their appeal to “principle”: Voters tend to prefer candidates they perceive as acting from principle (Paul Waldman has a great discussion of this in his aptly titled book Being Right Is Not Enough). Hence the quarter of 2004 Bush voters in Wisconsin who also voted for Russ Feingold. Those amongst our elected officials with left opinions that dare not speak their names would do well to keep that in mind.

NOT A GOOD WEEK FOR JUSTICE

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Robert Bork’s failed domination set a crucial precedent that a nominee whose jurisprudence endangers fundamental freedoms can and should be rejected by the Senate regardless of his personal competence. Unfortunately, Senate Democrats set a new one on Monday by stopping short of a filibuster on Sam Alito, a man who literally wrote the brief on how to kill Roe v. Wade, who has shown unwavering support for the power of the federal government to have its way with marginalized individuals, and who rejects that government’s responsibility and power to act in the service of the disenfranchised. Monday set a dangerous new precedent that when push comes to shove, the Senate will advise and consent only on whether the nominee is a sex offender or an incompetent. It’s a precedent Republicans can be depended on to take advantage of, to the real detriment of everyone who looks to an independent judiciary to safeguard their rights.

The Democrats’ ostensibly rebellious clapping after Bush said that Congress hadn’t enacted his plan to erode Social Security only emphasized the dark irony of the day: politicians who express their opposition through unauthorized clapping but not through the parliamentary avenues available to stop the confirmation of men who will leave us less free.

Want to put some real progressives into Congress? Here’s a good place to start.

NOT DOING US ANY FAVORS

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Howard Dean was doing a decent job on Hardball reminding Chris Matthews that it was the White House, and not the Democratic Party, that first declared Samuel Alito’s record as a prosecutor to be relevant to the merits of his nomination. But then Matthews brought up Alito’s far-right position on spousal notification and instead of hitting out of the park the question of whether a woman should need a permission slip from her husband to decide what happens to her body, Dean got dragged into a losing fight over whether it was accurate to describe the Democrats as a “pro-choice party.” Dean shied away from the characterization, even though it describes a plurality of Americans, on the grounds that calling the party pro-choice suggests that people with the party’s position are not “pro-life.”

That would be the problem with the term “pro-life,” not the term “pro-choice.”

Dean fumbled back and forth between describing his position as one supporting a woman’s right to choose and one supporting a family’s right to choose, and insisted that the Democratic party’s position was not an “abortion rights” one. If the idea was to communicate that the party was open to abortion opponents, it’s not clear what Dean accomplished towards that end. But for those looking to the Democratic party in hopes of figuring out what it stands for, it clear what the costs are of bristling and hedging over whether you should be called “pro-choice.”

A HEARING HIGHLIGHT

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Russ Feingold cuts through the “not prejudging cases” farce:

FEINGOLD: In Hamdi there were four different opinions…We know where all eight other members of the court stand on these opinions — in their opinions. They either wrote or joined one of them. Yet all eight of them will hear the next case that raises similar issues. No one is suggesting that their independence or impartiality in the next case has been compromised. Mr. Hamdi, of course, has left the country, so the precise facts of his case will never return to the court…Justice Scalia can participate in the next case involving the questions at issue in Hamdi, even though we know exactly what he thinks about that decision..Why shouldn’t the public have some idea of where you stand today on these crucial questions concerning the power of the government to jail them without charge or access to counsel in a time of war? They know a great deal about how each of the other justices approach these issues. Why is your situation different?

ROBERTS: Well, because each of the other eight justices came to their views in those cases through the judicial process…You’re now asking me for my opinion outside of that process: not after hearing the arguments; not after reading the briefs, not after participating with the other judges as part of the collegial process; not after sitting in the conference room and discussing with them their views, being open to their considered views of the case; not after going through the process of writing an opinion which I have found from personal experience and from observation often leads to a change in views…

FEINGOLD: What would be the harm, Judge, if we got your views at this point and then that process caused you to come to a different conclusion, as it appropriately should? What would be the harm?

ROBERTS: Well, the harm would be affecting the appearance of impartiality in the administration of justice…

FEINGOLD: I understand your view. I think it’s narrow. I have the experience of having one of my bills go for the Supreme Court and I know I didn’t have, as we say in Wisconsin, a snowball’s chance with a couple of the justices because of what they had ruled previously. But I didn’t think that made the process in any way tainted.

So first, John Roberts’ argument is that he can’t discuss past cases because it would be unfair to future litigants to go before a judge who was on the record about issues related to the case. Then, when confronted with the obvious but under-discussed point that every current Justice is on the record about prior cases by nature of having voted on them, his argument transforms into a new one: It’s unfair to future litigants to have to go before a judge who had publicly stated opinions about issues related to the case and hadn’t had them forged by the process of conferring with other justices. This argument is equally specious – certainly, judges views may change with time (though in some cases we may question how genuine the change of heart is), and no one asks an apointee to pledge not to listen to new viewpoints, but if the only people with well-reasoned, prudent opinions on Supreme Court decisions are Supreme Court Justices, then there isn’t much point in having judicial confirmation hearings at all. The idea that Supreme Court Justices, by nature of having to debate with their colleagues and write opinions, have earned some qualitatively different right to their judgments doesn’t seem in keeping with the humility which Roberts claims as the hallmark of his judicial philosophy. And if announcing positions on prior cases without having been on the Court for them is imprudent, his comments about Lochner and Brown are as much so as his comments on Hamdi. The real pattern in what he does and doesn’t discuss it seems, it which cases the public as a whole is likely to be reassured by his positions on and which ones he’d be safer keeping his mouth shut about.

LOOK WHO’S UNREPRESENTATIVE NOW

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The great thing about legislative civil rights victories like the civil unions bill passed last spring here in Connecticut and the even more historic equal marriage rights legislation passed yesterday by California’s legislature is that it deprives the opponents of civil equality under the law of their judicial tyranny arguments and leaves them stuck opposing equal rights for all couples on the merits. One of the most squeamish about having to take sides on the substantive issue here is Governor Schwarzenegger, who in the LA Times today is grasping desperately for any “unrepresentative elites” argument he can get his hands on. Schwarzenegger’s gambit to have his centrist image and eat it too? Pinning the “unrepresentative elite” argument on the legislature. I expect we’ll see more of this in the future: Republicans rising to disparage the republican system of government in favor of direct democracy through ballot initiatives on the grounds the marriage issue strikes so deep that legislatures, like courts, can’t be trusted with it. That means deliciously ironic statements like this one from Schwarzenegger’s spokeswoman:

The people spoke when they passed Proposition 22. The issue subsequently went to the courts. The governor believes the courts are the correct venue for this decision to be made. He will uphold whatever decision the court renders.

THE OTHER SIDE OF ROE

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One of the more interesting points William Saletan makes in Bearing Right is that as long as a sizeable number of Americans believes neither that a woman has a right to choose nor that a fetus has a right to life, we’ll continue to see employers, judges, parole officers, and others pushing policies which should trouble those who believe in either – policies which deny pregnant women who want to carry a fetus to term, or women who want to retain the ability to get pregnant in the future, the chance to do so. The case studies Saletan explores show that when the issue is mandatory abortion, pro-choicers and “pro-life” activists have generally been united in defending a woman’s right to choose birth, though in cases where the issue is mandatory sterilization, “pro-life” organizations have too often stood with those who would take away a woman’s or man’s reproductive autonomy, whether permanently or for the duration of coercively-implemented injections.

The ultimate line of legal defense for women told that sacrificing the chance to have a child is the cost of a job or a parole is that much-maligned but nationally popular decision, Roe v. Wade. One of these women is April Thompson, who is suing Piedmont Management Associates for firing her over her decision to remain pregnant:

According to the lawsuit, when Ebert found out Thompson was seeing a fertility doctor, she told her she was “worried that she was trying to get pregnant.” “If you get pregnant, you will have to move because I am not putting up with any babies around here and you also won’t have a job,” the lawsuit says Ebert told Thompson. “The guys and I do not even hire single mothers because of the problems. I know you have some great delusion that you will be a great mother, but you won’t — you can’t even take care of your dog.”…According to the lawsuit, when Ebert found out, she demanded that Thompson get an abortion.

April Thompson is a poster child for the centrality of privacy and workers’ rights to the pursuit of happiness this country promises. And her case represents the danger of a jurisprudence which would elevate an ostensible “free contract” right to sign away your personal freedom over individual rights, and the judgment of the state over the bodily integriy and autonomy of the individual. It reminds us why, if John Roberts still sees Roe as “unprincipled jurisprudence” and scoffs at a “so-called right to privacy,” and plans to remain the “go-to lawyer for the business community, then America deserves better than John Roberts on the Supreme Court.

SIX POPULISMS

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TPMCafe’s guest stint by Thomas Frank (One Market Under God, by the way, is a masterpiece) has stirred a spirited debate about the place of populism in a progressive future. Populism is a word which has rightly come up fairly frequently in more- and less-enlightened discussions of the left’s future, but too often it seems like folks are talking past each other. Here are six of the somewhat but not entirely related themes I think are in play in the way different people discuss populism:

Progressive Economics: In broad strokes, the economic policy proposals that get labeled as populist are the ones least popular with the Washington Post editorial board and the “Washington Consensus” crowd: fair trade or no trade; downward economic redistribution; unionization. Opposition to immigration often gets grouped in here as well as part of the same package, though for obvious reasons I’d rather apply the populist label to the push for equal labor rights for immigrants.

Direct Democracy: The other set of policy proposals which usually get the populist labels are the ones which bring political decisions under more direct control of the American public. This includes taking decisions away from judges and handing them over to legislatures and taking them away from legislatures and handing them over to public referenda.

Trust in crowds: Populism is also used to describe a posture – whether held by politicians or activists – of trust in the mass public and distrust in elites. Usually, trust in the public is justified by an appeal to the wisdom of common people in identifying their own problems and synthesizing their own solutions. And distrust in elites is justified on the grounds of their inability to understand those insights or, more often, their narrow interests.

Democratic Legitimacy: Populism also describes a particular kind of appeal made by elected or unelected political leaders. Candidates for office, especially, tend to get the populist label for seizing democratic legitimacy for themselves – that is, for framing themselves as the bearers and protectors of the people’s will. The corollary to the candidate as representative of the masses is the candidate as enemy of the elites, whose hostility is easily explained by their opposition to the popular policies and popular mandate.

Prejudice: Populism is also a frequently-invoked label to describe all manner of ugly prejudice, be it directed against Blacks, Jews, homosexuals, or immigrants. In this conception, populism is the cry of some self-defined majority against unwelcome interlopers. This meaning of populism – which gives elites a lot of credit – is never far when someone’s looking to discredit one of the others.

Economic Focus: Maybe the simplest sense in which the word populism is used is to refer to a focus on economic issues (rather than a particular stance on them), to the exclusion of others.

That makes two kinds of policy approaches, two rhetorical/ philosophical postures, a question of focus, and a very bad thing (generally thrown into the mix by pundits like Joe Klein to make everything associated with the word sound ugly). Each of them, though, has a way of showing up implicitly in discussions about what is or should be populist.

What does it mean, for example, to ask whether Bill Clinton was a populist President? He often gets described that way, in large part because he ran on the economy (“It’s the Economy, Stupid”), and because his challenge to Bush benefited significantly from a sense that Clinton represented the concerns of the American people with which the President had fallen out of touch (and supermarket ray-guns). Others associate Clinton with the decline of populism in the Democratic party, and of the party in the country, pointing to his conservative stance on issues like NAFTA and the technocratic underpinnings of the “Reinventing Government” concept. I’m not going to say they’re both right (I’d say Clinton campaigned as a populist, but he didn’t govern as much of one). I will say that on those terms, it’s no surprise that those conversations don’t get farther than they do.

Thoughts?

START YOUR ENGINES

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News is that the Supreme Court nominee will be announced tonight at 9 PM, and the buzz is that it’s Edith Brown Clement. She seems like a likely choice: she’s a woman, has avoided drawing as much controversy to herself as a Janice Rogers Brown, and has a far right-wing vision for the court and this country (it always seemed to me that the Gonzales trial balloon was just about getting credit from Latinos for considering him and getting credit from evangelicals for not nominating him).

Brown Clement’s opaque views on abortion will likely continue to dominate news coverage; apparently she refers to Roe as “settled” but not made particularly clear whether she would be interested in unsettling it. The bad news there is, anti-choice leader Hadley Arkes is optimistic:

Just whether or when Roe v. Wade is actually, explicitly overturned may cease to matter quite as much. For in the meantime, the public would have the chance to get used to a continuing train of laws restricting and regulating abortion.

As for the Lochner litmus test, however Brown Clement feels about judicial activism to protect privacy, she seems all-too comfortable with judicial activism to strike down progressive regulations. As Nathan observes, she supported a challenge to the constitutionality of the Endangered Species Act, denied ADA protection to employees discriminated against for having HIV, and argued for making it harder for the poor to get legal representation by cutting legal fees when clients win small awards. As Jeffrey Rosen wrote last year:

How would a stealth candidate like Clement perform on the Supreme Court? Everything about her record suggests she would enthusiastically support the federalism revolution…Taken to its logical limits, the Constitution in Exile would call into question not only environmental protections but workplace regulations like the Occupational Safety and Health Act.