Justice -- The New 'Judicial Activism'

June 30, 2009

by Faiz Shakir, Amanda Terkel, Matt Corley, Benjamin Armbruster, Ryan Powers, and Nate Carlile

SUPREME COURT

The New 'Judicial Activism'

Dividing along familiar ideological lines, the Supreme Court handed down a 5-4 decision in Ricci v. DeStefano yesterday, overturning 25 years of lower-court precedent that gave employers discretion to reconsider a promotion test whose results favor one race over another. Justice Kennedy's majority opinion in Ricci creates new law; from now on, employers may reconsider an already administered promotion test only if there is a "strong basis in evidence" showing that the test engaged in illegal discrimination. Despite the fact that Sotomayor did nothing more than follow a binding precedent when she decided Ricci, conservatives are pouncing on Ricci as evidence that Sotomayor is unfit for the Supreme Court. Wendy Long of the right-wing Judicial Confirmation Network claimed that "Sotomayer's" decision in Ricci was "the equivalent of a pilot error resulting in a bad plane crash. And now the pilot is being offered to fly Air Force One." The RNC claimed, falsely, that Sotomayor has been reversed in six of seven cases before the Supreme Court. (In reality, of the approximately 380 opinions Sotomayor has written as an appeals judge, the Supreme Court has reversed only five.) Although these attacks may be heavy on rhetoric, they are light on facts.

THE OPPOSITE OF 'ACTIVISM': According to a set of conservative talking points attacking Sotomayor, Republicans decided on the day of her nomination to paint her as an "'activist' judge intent on making law from the bench, not interpreting law," and yesterday they stuck to that plan. Sen. Jeff Sessions (R-AL) proclaimed that Ricci "will only raise more questions in the minds of the American people concerning Judge Sotomayor's commitment to treat each individual fairly and not as a member of a group." Minority Leader Mitch McConnell (R-KY) claimed that Sotomayor "allowed her personal or political agenda to cloud her judgment and affect her ruling." But these accusations are false. The truth is that in 1984, the Second Circuit decided a virtually identical case to Ricci, holding that employers have sweeping authority to reconsider a promotion test when minorities underperform white applicants. This 1984 decision was reaffirmed 10 years ago in Hayden v. County of Nassau. Whatever Sotomayor may have thought about the firefighters' claim in Ricci, she was bound by these precedents obligating her to rule against those firefighters -- as a lower court judge, she lacks the Supreme Court's authority to roll back existing law. Indeed, had she ignored the law to reach the result Sessions and McConnell advocate, she would have engaged in exactly the kind of judicial activism her critics falsely accuse her of.

A PATTERN OF FALSE ATTACKS: Sessions and McConnell's misrepresentation of the Ricci case is not an isolated incident. Indeed, every single substantive attack on Sotomayor's record has rested on the bizarre claim that Sotomayor is a "judicial activist" because she refused to ignore a law that conservatives dislike. Republican vote suppression guru Ken Blackwell described her decision in Maloney v. Cuomo as a "declaration of war against America's gun owners." But in that case, Sotomayor did nothing other than follow a binding Supreme Court precedent limiting the scope of the Second Amendment. Similarly, conservatives have called Sotomayor an "activist" for her refusal to create a new exception to the Voting Rights Act out of thin air, and for an eminent domain decision, joined by two George W. Bush appointees, holding that a property owner who waited too long to file his claim was bound by the same three-year statute of limitations that governs everyone else. Indeed, Republican claims that Sotomayor is some kind of "judicial activist" are so lacking in merit that a report by the non-partisan Congressional Research Service recently determined that "the most consistent characteristic of Judge Sotomayor's approach as an appellate judge could be described as an adherence to the doctrine of stare decisis, i.e., the upholding of past judicial precedents."

THE REAL 'ACTIVISTS': Sotomayor may not be willing to twist the law to achieve political ends, but conservatives do not need to look far for the activism they desire. Since 1971, federal law has prohibited both intentional and unintentional race discrimination in employment. Although employers may use hiring practices that have an adverse impact on minorities so long as applicants are screened for their fitness for the job, employers who screen out minority applicants through arbitrary or irrelevant tests engage in illegal discrimination. Thus, federal law does more than just prohibit obvious race discrimination, it "smokes out hidden bigotry" by employers. Concurring in Ricci, however, ultra-conservative Justice Scalia departs from a quarter-century of precedent to claim that this ban on hidden discrimination may violate the Constitution's ban on race discrimination. Moreover, Scalia's view is echoed by a radical dissenting opinion handed down last week by Justice Thomas, who argued that a central provision of the Voting Rights Act is unconstitutional. So if conservatives like Sessions and McConnell truly believe that "judicial activists" are poisoning the legal system, they should look a lot closer to home than Sotomayor.

HEALTH CARE -- PODESTA AND DASCHLE PROMOTE PUBLIC PLAN, OUTLINE BUDGET-NEUTRAL PLAN TO PAY FOR REFORM: Yesterday, former Democratic Senate Majority Leader Tom Daschle and Center for American Progress (CAP) President and CEO John Podesta promoted a budget-neutral plan to finance health care reform, advocated for a strong public option as the best way to control health care costs, and urged Democrats to "not hesitate" in using budget reconciliation to push through legislation if Republicans opt to obstruct real reform. Both noted that any discussion of whether the Senate Democrats should use reconciliation or not is premature, but Daschle called reconciliation a "viable fallback option," and Podesta said "there is a point at which you have to move on" with reform. Obstructing reform would make Republicans "less and less relevant," Daschle warned, as Democrats move forward with reconciliation, which "would probably have a pure public option just because most likely it will only involve Democrats deciding what that reconciliation package will be." Responding to President Obama's call that reform should not add to the deficit, Daschle and Podesta endorsed a Center for American Progress report that says "taxing some employer-provided health benefits" should be considered to pay for reform. The report, by CAP fellow Judy Feder and Harvard Economist David Cutler, offers a series of "failsafe" proposals to pay for reform, such as "a 'pay or play' requirement for larger employers to either provide health benefits or pay toward employees' coverage through private plans or from the government" and higher taxes on "tobacco products, alcoholic beverages and sugar-sweetened drinks." Both Podesta and Daschle were optimistic that health care reform will pass this year, with Podesta declaring that a "better than 50-50 chance is maybe even a little bit understated."

"Nearly three-quarters of all Americans support the plan to withdraw most U.S. combat troops from Iraqi cities and towns, even though most believe that the troop movements will lead to an increase in violence in that country," according to a new CNN/Opinion Research poll. "This plan has widespread bipartisan support," says CNN Polling Director Keating Holland.

Iraqi Interior Minister Jawad Al Bolani writes in the Washington Post today that while the withdrawal of U.S. troops from major Iraqi cities "must provide some relief to many Americans, whose sacrifice has been extraordinary," "none of us can be lulled into believing that Iraq is a 'mission accomplished.'" "June 30 is not an historical endpoint," but "the beginning of a highly uncertain chapter in Iraqi democracy."

The health insurance lobby plans to hold more than 75 town hall and other events around the country this week to rally their supporters on health care reform. "We have really ramped up our efforts to engage the health plan community," said Robert Zirkelbach, a spokesman for AHIP. "We are encouraging health plan employees from across the country to get involved, reach out to their Member of Congress, talk about what they do and the value they're adding to the health care system."

The House Intelligence Committee approved legislation meant to strengthen congressional oversight of sensitive intelligence matters. The committee "proposed doing away with provisions that allowed a president to limit disclosure of sensitive intelligence activities to the 'Gang of Eight.'" Instead, the committee "gave each intelligence committee, rather than the president, the legal authority to limit briefings to its own members."

Bernard Madoff was sentenced to the maximum 150 years behind bars, one of the stiffest penalties ever given for a white-collar crime, which averages out to a year in prison for every $333 million Madoff cost investors. "The penalty sparked a burst of applause in a courtroom packed with victims of the fraud," while the judge labeled Madoff's Ponzi scheme "extraordinarily evil."

After "quickly finishing a partial vote count," Iran's Guardian Council "formally certified the re-election of President Mahmoud Ahmadinejad to a second four-year term, saying there was no validity to charges of voting fraud." The decision "touched off scattered protests in Tehran" last night. "It is a divided country now," said an unnamed Iranian political analyst.

The Obama administration is "developing plans to seek up to 1,500 National Guard volunteers to step up the military's counter-drug efforts along the Mexican border, senior administration officials said Monday." Some officials worry such a move will be "seen as militarizing the region."

The Obama administration is moving forward with lifting "a 1987 U.S. ban on travel and immigration by foreign nationals" infected with HIV. Last year, President Bush signed into law a provision to remove HIV from the list of banned diseases, and yesterday, the Obama administration published the official rule in the Federal Register. There is now a 45-day comment period before it can officially become law.

And finally: While First Lady Michelle Obama is well-known for her fashion-forward sensibilities, President Obama is beginning to influence men's clothing too. Anthony Asaf has been a tailor to "the high-powered, high-profile men in Washington for years" and says that more of his clients are now asking for an "Obama-like" fit. "We are seeing a much slimmer suit, and a narrower, almost tapered pant leg," said Asaf. "The shoulder is also much softer, with less padding in it than before."

Ezra Klein is worried the House passed Waxman-Markey without a motivated public.

Guess who's conflating the "uninsured crisis" with a (legal and illegal) "immigration crisis."

We've come a long way, says Hilzoy.

TARP will not cost anywhere near $700 billion.

The National Review dubs Obama the "Celeb in Chief" for recruiting Ashton Kutcher to promote National HIV Testing Day.

Will Bunch needs to be reminded what the 2008 election was about.

HHS Secretary Kathleen Sebelius may be willing to compromise on public option, co-ops.

Pat Boone goes birther.

"[It's] cap-and-tax. ... It's really terrible. ... So it started on the wrong path and now it's just turned into, you know, it's laws and sausages at its worst in my view."
-- Sen. John McCain (R-AZ), 6/29/09, referring to the American Clean Energy and Security Act

VERSUS

"A cap-and-trade policy will send a signal that will be heard and welcomed all across the American economy."
-- McCain, 5/12/08

Think Progress

The New 'Judicial Activism'

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