May 27, 2011

Judge Says Citizens United Extends to Corporate Donations

A judge has ruled that the campaign-finance law banning corporations from making contributions to federal candidates is unconstitutional, citing the Supreme Court's landmark Citizens United decision last year in his analysis.

In a ruling issued late Thursday, U.S. District Judge James Cacheris tossed out part of an indictment against two men accused of illegally reimbursing donors to Hillary Clinton's Senate and presidential campaigns.

Cacheris says that under the Citizens United decision, corporations enjoy the same rights as individuals to contribute to campaigns.

May 26, 2011

Further Debunking the idea of a "Pro-Business Roberts' Court"

Over the last few years there has been a lot of back and forth among Supreme Court watchers over whether the Robert's Court is "Pro-Business." For one example see here. Today the Court released its opinion in Chamber of Commerce v. Whiting. I won't get into the merits fo the decision. I just want to point out that the only votes for the Chamber came from the liberal block of the Court. Kagan recused herself, but the other three liberals, Breyer, Sotomayor, and Ginsburg, agreed with the Chamber and dissented in the case. This case underlies the weaknesses in arguing over the whole "Pro-Business" nonsense anyway. Hopefully this case will put those arguments to bed for good.

May 25, 2011

Goodwin Liu Withdraws

CFJ Executive Director Curt Levey on the withdrawal of Ninth Circuit nominee Goodwin Liu:

“We are pleased but not at all surprised that the nomination of Goodwin Liu is being withdrawn just days after it was rejected in a Senate cloture vote. There was speculation that Majority Leader Harry Reid would force another cloture vote on Liu at some point, but there was nothing for Senate Democrats or the White House to gain by pressing the issue. There is no larger point about GOP obstruction to make—Liu is the only Obama judicial nominee to be successfully filibustered—and no larger principle to fight for—Liu’s radical record sets him apart from even the most liberal of Obama’s other nominees. In our view, Liu’s nomination was doomed from the start, as Rahm Emanuel likely recognized in opposing it.”

Behind the Attacks on Scalia, Thomas & Alito

In an article in the June issue of the American Spectator, CFJ’s Curt Levey explores the motivations behind this year’s “aggressive—and, at times, personal—attack on the … impartiality and ethics of Justices Clarence Thomas, Antonin Scalia, and … Samuel Alito.” (quoting Politico) The attacks have focused on contacts with the Koch brothers and others that allegedly compromise the three justices’ ability to impartially decide cases, particularly the Citizens United campaign finance decision and the lawsuits challenging Obamacare. Justice Thomas’s wife, Ginni, has also been a subject of the ethics assault.

In his article, Levey points out that “Until the recent assault on the ethics of conservative Supreme Court justices, the left had largely reserved the politics of personal destruction for judicial nominees, preferring less personal attacks on sitting judges.” With so little substance behind the ethics charges—“even liberal legal experts have brushed off the complaints as hollow” says Politico—the question of what is motivating this escalation arises.

Levey notes that
“The stated goal of the mudslingers is recusal ... But recusal can’t be the endgame of this ethics campaign. Liberals know they have little hope of convincing Thomas to recuse himself in the Obamacare cases and even less hope of effecting retroactive recusal [of conservative justices] in Citizens United.”
Levey identifies the motivations that are really behind the attacks, including:

1) Intimidation and delegitimization

Levey concludes that “liberals hope their attacks on the conservative justices will ensure that the justices are intimidated and the public is suspicious when the most controversial aspects of Obama’s agenda … reach the Supreme Court … [If intimidation] fails to produce a Supreme Court decision upholding Obamacare, the backup plan is to delegitimize the Court’s ruling in the eyes of the public.”

2) Fighting a potential Kagan recusal

Levey notes that “the Supreme Court’s vote on the constitutionality of Obamacare is likely to be very close, so liberals need Kagan’s vote and will fight hard against any pressure for her recusal” based on her service in the Obama Justice Department as it began formulating its legal defense of ObamaCare. He asks “Are the attacks on the conservative justices the beginning of that fight?”

3) Heightened paranoia about the “vast right-wing conspiracy”

“That the accused justices are beholden to conservative billionaires [and right-wing groups] can be seen in their attendance at Koch-associated events and their ties to other parts of the billionaire-funded web,” says Levey, describing the view of the left.

4) Apoplectic rage at Citizens United

The left sees it as “an illegitimate decision, arrived at by at least two justices who should never have participated in it.” (quoting Clinton Labor Secretary Robert Reich) “The belief that Citizens United particularly benefits the conservative forces Justices Thomas, Scalia, and Alito are allegedly conspiring with makes the decision even harder for the left to swallow,” Levey explains.

5) Politicization of the courts

Levey explains that “it should come as no surprise that the ethics allegations … come on the heels of the left’s decades-long endeavor to politicize the courts. … Deprived of a sympathetic Supreme Court lineup, frustrated by their inability to hijack the confirmation process, and convinced that the Roberts Court was intent on paring down the gains of liberal judicial activism, the left was desperate to find a new tool for manipulating the High Court. … Anger over Citizens United and the 2010 election results added the final sparks to liberal frustration, and the assault against the ethics of Scalia, Thomas, and Alito was on.”

The full text of Levey’s article, “Ganging Up on Justices Thomas, Scalia, and Alito,” is not yet available online.


May 18, 2011

New Documents Shed Light on Kagan's Role in Obamacare

From The Daily Caller:
Newly released documents reveal Supreme Court Justice Elena Kagan was more involved with President Obama’s health-care law than she disclosed previously. The documents likely will lead to a revival of questions about whether the Kagan should recuse herself from future cases.

Specifically, the documents show that Kagan was involved with crafting the legal defense of the Affordable Care Act in her role as solicitor general, before her appointment to the bench. The Media Research Center and Judicial Watch obtained the documents through a Freedom of Information Act (FOIA) lawsuit that was filed in February 2011.

In an email dated Jan. 8, 2010, then-Deputy Solicitor General Neal Katyal sent an email to Senior Counsel Brian Hauck and Deputy Attorney General Thomas Perrelli that indicates Kagan played a key role in coming up with a legal defense.

Biggest Nomination Fight of 2011

“‘Unless there’s a surprise Supreme Court vacancy this year, this is the big fight of the year,’ said Curt Levey, executive director of the conservative Committee for Justice. Levey and many other conservatives argue that Liu is an extraordinary circumstance.” – David Ingram, Legal Times (5/17/11)
Statement of CFJ Executive Director Curt Levey:

The Legal Times excerpt summarizes the showdown that will occur this week—likely Thursday—when Senate Democrats force a cloture vote on Ninth Circuit nominee Goodwin Liu, President Obama’s most radical judicial nominee and the man whom Obama would dearly like to make the first Asian-American Supreme Court justice. Liu’s left-wing agenda and outrageously activist view of the law makes this showdown a classic test of the bipartisan “extraordinary circumstances” standard for when judicial nominees can be filibustered. The standard originated in the 2005 Gang of 14 agreement.

Liu is a 40 year old Berkeley law professor whose vocal and unabashed championing of judicial activism has made him a star on the legal left. Liu "envisions the judiciary ... as a culturally situated interpreter of social meaning" and believes judges should create constitutional rights to “distributive justice,” including welfare rights to “education or housing or medical care.”

Liu has expressed left-wing views on virtually every hot-button issue likely to come before him on the bench, including the view that Americans are obligated to pay reparations for slavery, an obligation he would likely read into the Constitution. Liu is too far to the left for even Rahm Emanuel, who advised the President against making this nomination.

If Senate Democrats succeed in getting the 60 votes necessary to force cloture, Liu will almost surely be confirmed to the Ninth Circuit, putting this darling of the Left just one step away from the Supreme Court. If, instead, cloture fails, Liu’s nomination will effectively be dead.

If all 53 Democratic senators follow the party line and vote for cloture, they will need to add seven Republican votes to prevail. The key to this vote are the 11 GOP senators who voted for cloture on Rhode Island district court nominee John McConnell earlier this month. They include Sens. Alexander, Brown, Chambliss, Collins, Graham, Isakson, Kirk, McCain, Murkowski, Snowe, and Thune.

Several of these GOP senators justified their vote for cloture by arguing that the President’s district court nominees deserve more deference or that McConnell did not quite meet the “extraordinary circumstances” threshold. The former argument is not available for appeals court nominee Liu. The latter argument, if applied to Liu, would logically require a GOP senator to answer the question “If Obama’s most radical nominee is not extreme enough to meet the extraordinary circumstances threshold, when would it ever be met?” If the answer is “never,” because the senator believes that judicial filibusters are never justified, that senator must then explain why Republicans are obliged to unilaterally disarm no matter how atrocious the nominee is.

Fortunately, Liu’s defeat is likely. But the vote will be very close. We urge those concerned about this radical nominee to contact the key GOP senators immediately.


May 12, 2011

Heller? What Heller?

From today's Washington Times editorial:
The landmark District of Columbia v. Heller case should have settled the matters like this three years ago. In its ruling, the Supreme Court smacked down D.C. gun-control measures and reaffirmed the constitutional protection for the individual’s right to own a handgun. Since then, the District has cooked up a labyrinth of pointless restrictions and rules crafted to ensure this fundamental right would rarely be exercised. The city may have gone a step too far, as it is now impossible for any law-abiding citizen to obtain a gun in the nation’s capital.

That’s because the District manipulated its zoning laws to ensure gun brokers would not be welcome. With no gun stores, the only way to obtain a pistol lawfully is to make a purchase in another state and have the gun shipped to a Federal Firearms License (FFL) holder in the District. A federal law prohibits acquisition of a firearm across state lines in any other way.

The lone FFL holder doing business in Washington recently lost his lease and can no longer perform such transfers. That left D.C. resident Michelle Lane in the lurch after she ordered Kahr K9 and Ruger LCR handguns from a dealer in Lorton last month. The Second Amendment Foundation filed the federal court challenge on her behalf, arguing that she is being denied equal protection of the laws because of where she lives.
The Washington Post previously wrote about how difficult it is to get a gun in D.C. In order to get a gun it took "$833.69, a total of 15 hours 50 minutes, four trips to the Metropolitan Police Department, two background checks, a set of fingerprints, a five-hour class and a 20-question multiple-choice exam."

May 10, 2011

Judges War; Dems Play Race Card

Statement of CFJ Executive Director Curt Levey:

When Majority Leader Harry Reid announced last week that he would push for votes on President Obama’s most controversial judicial and Justice Department nominees, we warned that it was essentially a declaration of war on the judges issue. Speaking on the Senate floor this afternoon, Sen. Grassley, the Judiciary Committee’s ranking member, made it clear that Reid’s declaration of war would have negative repercussions. They include a likely end to the bipartisan cooperation that has seen twenty judges confirmed during the last 46 days the Senate has been in session. Grassley lamented that
“[R]ather than continuing to move forward with consensus nominees, the other side has chosen [a fight over] the President’s most controversial nominees. I must say, this makes it extremely difficult to continue to work in a good faith effort to move forward on non-controversial nominees.”
Highlighting Democrats “insist[ence] on taking detours and throwing up roadblocks to this cooperative effort,” Grassley noted that
“[L]ast week, after moving forward with two [non-controversial] district court judges, the Majority Leader filed cloture on one of President Obama’s most controversial nominees, Mr. Jack McConnell. And now this week, the Majority Leader has turned to two more of the President’s controversial nominees.”
Grassley is referring to Deputy Attorney General nominee James Cole, who was defeated on a cloture vote yesterday, and Edward Chen, who was confirmed to the U.S. District Court late this afternoon. Grassley pointed out that “despite the unanimous Republican opposition” to Chen, GOP senators agreed not to force a cloture vote or extended debate on Chen. However, Sen. Grassley’s remarks make it clear that the Democrats cannot expect that sort of cooperation going forward.

Democratic senators took advantage of this afternoon’s floor debate on Chen to shamelessly play the race card. Judiciary Chairman Patrick Leahy denounced GOP Sen. Jeff Sessions’ past remark that Chen has “the ACLU chromosome,” charging that it harkens back to an earlier disgraceful—and presumably racist—era. Leahy is well aware that Sessions’ remark referred to Chen’s 16 years of employment as an ACLU lawyer, not to his Asian ancestry.

Sen. Diane Feinstein was more subtle in trying to link opposition to Chen with anti-Asian racism. She displayed large photos of this nation’s World War II-era Japanese internment camps throughout her floor remarks, far more than was necessary to make the point that Chen once worked on an internment camp-related case.


May 03, 2011

Reid Files Cloture, Signaling War

Statement of CFJ Executive Director Curt Levey:

Even Democrats concede that the pace of judicial confirmations has quickened this year with the help of Republican leaders in the Senate. But apparently that’s not good enough for Majority Leader Harry Reid. Reid signaled Monday that he is ready to go to war over President Obama’s most controversial judicial nominees, as well as the equally contentious Deputy Attorney General nominee James Cole. After announcing Monday that he will attempt to force votes on the controversial nominees, Reid filed cloture on one of them—Rhode Island district court nominee John McConnell—compelling Republican senators to attempt a filibuster when McConnell comes to a vote later this week.

McConnell is fiercely opposed by GOP senators, the business community, and a wide array of conservative groups because of his reputation as an unscrupulous plaintiff’s attorney willing to bring questionable lawsuits against American employers and make record-setting political contributions that suggest “pay to play.” McConnell even managed to engender stiff opposition from the United States Chamber of Commerce, which rarely involves itself with judicial nominations, and doubts at the American Bar Association, where he became one of only a handful of Obama nominees to get less than a unanimously qualified rating. Following his nomination, McConnell cemented his reputation by providing misleading answers to questions posed by members of the Senate Judiciary Committee

Moderate Republicans and perhaps a handful of red-state Democrats will determine whether John McConnell gets the 60 votes to survive a filibuster and, if so, the 51 votes to be confirmed. We urge those concerned about McConnell’s ability to render impartial rulings on the bench to call these key senators immediately.

The filibuster and confirmation votes will be close because of two factors: 1) the reluctance of several GOP senators to filibuster a judicial nominee under any circumstances, and 2) the reluctance of even moderate Democratic senators to deviate from a party-line vote on judicial nominees. The outcome of the votes will be closely watched both for their own sake and as an indicator of whether Reid will meet success if he follows through fully on his threat to go to war over Obama’s most controversial nominees, including radioactive Ninth Circuit nominee Goodwin Liu.