Obama and Supreme Court may be on collision course
The president's agenda on healthcare and financial regulations sets the stage for a clash with the Supreme Court's conservative majority.
By David G. Savage, Tribune Washington Bureau
July 6, 2010
Reporting from Washington
The Supreme Court wrapped up its term last week after landmark decisions protecting the right to have a gun and the right of corporations to spend freely on elections. But the year's most important moment may have come on the January evening when the justices gathered at the Capitol for President Obama's State of the Union address.
They had no warning about what was coming.
Obama and his advisors had weighed how to respond to the court's ruling the week before, which gave corporations the same free-spending rights as ordinary Americans. They saw the ruling as a rash, radical move to tilt the political system toward big business as they coped with the fallout from the Wall Street collapse.
Some advisors counseled caution, but the president opted to criticize the conservative justices in the uncomfortable spotlight of national television as Senate Democrats roared their approval.
Chief Justice John G. Roberts Jr. is still angered by what he saw as a highly partisan insult to the independent judiciary. The incident put a public spotlight on the deep divide between the Obama White House and the Roberts court, one that could have a profound effect in the years ahead.
The president and congressional Democrats have embarked on an ambitious drive to regulate corporations, banks, health insurers and the energy industry. But the high court, with Roberts increasingly in control, will have the final word on those regulatory laws.
Many legal experts foresee a clash between Obama's progressive agenda and the conservative court.
"Presidents with active agendas for change almost always encounter resistance in the courts," said Stanford University law professor Michael W. McConnell, a former federal appellate court judge. "It happened to [ Franklin D.] Roosevelt and it happened to Reagan. It will likely happen to Obama too."
Already, the healthcare overhaul law, Obama's signal achievement, is under attack in the courts. Republican attorneys general from 20 states have sued, insisting the law and its mandate to buy health insurance exceed Congress' power and trample on states' rights.
Two weeks ago, a federal judge in New Orleans ruled Obama had overstepped his authority by ordering a six-month moratorium on deep-water drilling in the Gulf of Mexico.
On another front, the administration says it will soon go to court in Phoenix seeking to block Arizona's controversial immigration law, which is due to take effect July 29. Republican Gov. Jan Brewer said Arizona would go to the Supreme Court, if necessary, to preserve the law.
As chief justice, Roberts has steered the court on a conservative course, one that often has tilted toward business. For example, the justices have made it much harder for investors or pension funds to sue companies for stock fraud.
Two years ago, the court declared for the first time that the gun rights of individuals were protected by the Constitution. This year, the justices made clear this was a "fundamental" right that extended to cities and states as well as federal jurisdictions.
Since the arrival in 2006 of Justice Samuel A. Alito Jr., Roberts has had a five-member majority skeptical of campaign funding restrictions. At first, he moved cautiously. Roberts spoke for the majority in 2007 in saying that a preelection broadcast ad sponsored by a nonprofit corporation was protected as free speech even though it criticized a candidate for office.
Last year, the court had before it another seemingly minor challenge to election laws by a group that wanted permission to sell a DVD that slammed Hillary Rodham Clinton when she was running for president in 2008. This time, however, Roberts decided on a much bolder move.
The 5-4 ruling in the Citizens United case struck down all limits on direct election spending — for giant, profit-making corporations as well as small nonprofit groups. For more than 60 years, Congress and many states had barred corporate and union spending to sway elections. The court's opinion dismissed all such laws as unconstitutional censorship.
The decision came as a "real shock to the administration and to the Democrats in Congress," said Simon Lazarus, counsel for the National Senior Citizens Law Center. "It's also caused a sea change in their thinking about the court. Before, it was all about the 'culture wars' issues, like abortion, prayer and gay rights. Afterward, they saw this new activist thrust among the conservatives as a direct threat to their legislative agenda."
The change was on full display in last week's Senate hearing on Supreme Court nominee Elena Kagan. Democrats accused the high court of judicial activism in favor of corporations — "particularly by the five Republican appointees who have steered so hard to the right," said Sen. Sheldon Whitehouse (D-R.I.).
Republicans in the hearing targeted Obama's "tremendous expansion" of the government and argued for the court to aggressively restrain Congress and the White House. "The Supreme Court … ought to go for freedom, not more government," said Sen. Tom Coburn (R-Okla.).
Obama chose Kagan for the court believing she could bridge the gap with some of its conservatives. Her mission is to help uphold the laws that Obama and Democrats are pushing through Congress.
During her hearing, Kagan found herself in the odd spot of defending judicial restraint before senators who usually worry aloud about sending a "judicial activist" to the court.
"Can you name for me any economic activity that the federal government cannot regulate under the commerce clause?" asked Sen. John Cornyn (R- Texas).
"I wouldn't try to," Kagan replied, emphasizing that the court has long said lawmakers have broad powers to regulate economic activity.
The high court, however, will decide whether making Americans buy health insurance amounts to economic activity.
It may be another year or two before a true challenge to the Obama agenda reaches the Supreme Court.
McConnell, the law professor, said the administration's broad set of regulatory moves made a clash almost inevitable. "It does not mean the courts are being 'political,' " he said. "It is the way the institutions are designed, to create checks and balances."
Kagan is a former Harvard Law School dean who currently serves as the nation’s top lawyer arguing cases before the high court. Obama will announce his pick at a 10 a.m. ceremony in the East Room. If confirmed, Kagan would replace retiring Justice John Paul Stevens.
Aides indicate that Obama will introduce Kagan, 50, as a legal “trailblazer:” she was the first female dean at Harvard Law, the nation’s first female solicitor general and would become only the fourth woman to sit on the Supreme Court.
Yet Kagan is highly unusual in one way – she has never been a judge. It’s the first time in nearly four decades that someone would join the court, if confirmed, without any prior judicial experience. The last to do so was William Rehnquist, who went on to become chief justice.
And that lack of experience – and a readily available paper trail of legal arguments and decisions – has some on the left, in particular, nervous about whether she is the kind of down-the-line liberal that they dreamed Obama would appoint. In addition, she has centrist bona fides from her work in the Clinton administration’s domestic policy shop, and has drawn worries from the left over her apparent willingness to give some Bush administration war-on-terror tools to the Obama White House.
One commentator, The Nation’s Ari Melber, tells POLITICO: “As a lawyer, I think there is no doubt that: 1. Kagan is supremely qualified and merits confirmation by any standard 2. Replacing Stevens with Kagan moves the Court to the Right. Ergo 3. The sum consequence of Obama's first term appointments will be to advance qualified nominees through a respectable selection process that ultimately tilts the Court a bit more to the Right. Not the end of the world, but not what most Obama voters had in mind, either.”
On the right, Republicans at the time of Stevens retirement signaled little appetite for a Supreme Court filibuster fight, assuming that Obama stuck to the kind of names on his original short-list that he used for his first pick, Justice Sonia Sotomayor — and he certainly did that in Kagan. Kagan even drew praise from GOP legal luminaries such as Ted Olson and Ken Starr when Obama named her as solicitor general last year.
But there could still be a substantial culture war dust-up over her actions at Harvard to exclude military recruiters because of the ban on gays in the armed services. Conservatives have indicated that one line of argument against Kagan is that her tireless efforts against the military recruiters shows Kagan is more activist and advocate than fair-minded judge.
White House aides also have signaled that Obama believes Kagan could provide a forceful, effective counterweight to Chief Justice John Roberts and Justice Antonin Scalia, and perhaps even be the bridge to bring Justice Anthony Kennedy onto the liberal side in narrow 5-4 decisions.
Obama May Name Supreme Court Pick Monday, Likely Pro-Abortion Elena Kagan
by Steven Ertelt LifeNews.com Editor May 7, 2010 Washington, DC (LifeNews.com) -- The buzz around Washington today is that President Barack Obama will likely announce his Supreme Court nomination on Monday. When he does, several news reports citing White House officials indicate he will select pro-abortion Solicitor General Elena Kagan.
If nominated, Kagan, a former Harvard Law dean, would replace retiring pro-abortion Justice John Paul Stevens.
Kagan is an ardent abortion advocate who, at 50, would leave a pro-abortion legacy for Obama on the Supreme Court for decades to come. She would confirm the suspicion of many political observers that Obama decided to go with a radical left-wing nominee while Democrats control the Senate with a huge advantage that is expected to deteriorate after the November elections.
Senate Republicans have already promised a tough fight against Kagan.
“Our nation deserves a Supreme Court nominee who is committed to deciding cases impartially based on the law, not on personal politics, preferences, or what’s in the nominee’s ‘heart,’” Sen. John Cornyn, a pro-life Texas Republican who is a member of the Senate Judiciary Committee, said last month.
However, the lack of a legal record makes it difficult for Republicans to criticize her on specific cases that constitute the legal records of other potential nominees who have served as lower court judges.
The current high court has a 5-4 split in favor of unlimited abortions via Roe v. Wade and Kagan would be expected to continue that.
Kagan was the dean of Harvard Law school and has spent most of her career in academia and government -- in part as a legal counsel in the administration of pro-abortion President Bill Clinton --and prior to becoming the attorney for the Obama administration before the Supreme Court.
LifeNews.com spoke with Wendy Wright, the president of Concerned Women for America, who previously said Kagan was Associate Counsel to President Bill Clinton and Deputy Assistant to him for domestic policy -- which, under Clinton, advocated abortion.
Kagan was credited by the ACLU with “shaping Clinton’s policy on hate crimes," Wright noted.
"The Clinton Administration treated pro-life activists like violent criminals, creating a task force in the Department of Justice and a grand jury to investigate peaceful pro-lifers. This raises serious concerns that she shares the hostile view that religious beliefs are a form of 'hate,'" she said.
Kagan may be sympathetic to the views of internationalists, those who would impose international norms on Americans, including an unlimited abortion right.
"Abortion groups are actively attempting to create the impression that international norms require countries to provide access to abortion. During Kagan’s nomination hearing for Solicitor General, Senator Specter questioned her about the use of foreign sources of law in constitutional decision-making," Wright said.
Kagan said before: "At least some members of the Court find foreign law relevant in at least some contexts. When this is the case, I think the Solicitor General's office should offer reasonable foreign law arguments to attract these Justices' support for the positions that the office is taking."
But Wright responded to LifeNews.com: "A Supreme Court justice needs to be absolutely committed to the Constitution, proficient in their knowledge and ability to make rock-solid arguments on the basis of the Constitution and federal laws. If Elena Kagan needs to rely on foreign sources, it is an admission that her arguments are weak or she is incapable of handling the requirements of the office."
Kagan has also come under criticism from Marjorie Dannenfelser, the president of the pro-life women's group Susan B. Anthony List.
She told LifeNews.com previously, "In the past Kagan has been a strong supporter of the pro-abortion agenda. She has vigorously opposed the de-funding of taxpayer-funded clinics which promote abortions, despite the fact that a majority of Americans do not want their tax dollars to fund abortion providers."
Although pro-life advocates would strongly oppose Kagan's nomination, one indication she could face an easier time is that she is already getting support from phony pro-life advocates who back President Barack Obama and his pro-abortion nominees.
Catholic scholar and Obama ambassador to Malta Douglas Kmiec told the Daily Caller that Kagan is "not my first choice" but called her fair-minded when it comes to conservative legal advocates.
The only upside to the nomination is that Kagan would replace a consistently pro-abortion justice.
Pro-life advocate Gary Bauer has said: "Here’s some good news. By replacing Stevens, Obama, thankfully, is not going to change the ideological balance of the Supreme Court.
Gov. Chris Christie says he's confident hearing for N.J. Supreme Court nominee will happen
Governor Photos/Tim LarsenAnne Murray Patterson speaks after Governor Chris Christie announces her nomination to become an associate justice of the New Jersey Supreme Court. TRENTON -- Gov. Chris Christie expects Democrats to blink first as both political parties settle into a high-stakes game of political chicken over the future of the state Supreme Court.
Senate President Stephen Sweeney (D-Gloucester) is blocking Christie’s nomination of attorney Anne Patterson to replace Justice John Wallace.
Today, the governor said he doesn’t expect that to last.
“We’ll work it out,” Christie said. “I’m sure, over the course of time, Anne Patterson will be judged up or down on the merits of her nomination.”
The governor nominated Patterson on Monday, and the debate quickly reached a stalemate with both Christie and Sweeney, state government’s top two elected officials, refusing to budge. The governor chooses judges, but the Senate president controls which nominations get confirmation hearings in the Legislature’s upper house.
Although Wallace’s seven-year term ends May 20, Sweeney wants to keep his seat on the state’s highest court open for the next 22 months, when Wallace would have been eligible for mandatory retirement at age 70. Christie today said the Senate is neglecting its constitutional responsibility.
“The Senate has the obligation for advice and consent,” Christie said. “Not the option, the obligation.”
Senate Republicans also denounced the move. “They’re like children who didn’t get the lollipop so they’re going to stamp their feet in awhile,” said Sen. Gerald Cardinale (R-Bergen), a longtime critic of the court. “In a couple of weeks things will calm down and we’ll start being adults again.”
Through a spokesman, Sweeney reiterated he “considers this case closed.” Former Chief Justice Deborah Poritz, in an NJN interview aired last night, criticized Christie, saying judicial term limits are there to remove judges who have proven unqualified.
“By doing this through the tenure process, I think the governor sends a different signal,” she said. “The signal is be careful how you carry out your task of judging because that may affect whether you get tenure or not. And that affects the independence of the judiciary.”
Christie disagreed, pointing to his constitutional power to appoint judges.
“She’s just wrong,” he said. It’s not the first time she’s wrong, and I’m sure it won’t be the last.”
Phillip Warner southern regional coordinator for the New Jersey NAACP, said it’s impossible to remove race from the issue, describing it as a “slap in the face.”
“This is a justice who has been a centrist judge who has acquitted himself admirably on the court,” he said. “And the first time he chooses not to re-nominate a sitting justice, it has to be an African-American.”
Christie spokesman Michael Drewniak said Christie “has been consistent and clear that he wanted to change the direction and philosophy of the court. That was what this decision was all about, and nothing more.”
Senior White House correspondent Major Garrett reports this morning that while there's definitely a "front runner" for the Supreme Court nomination, nothing is a done deal.
Two senior administration officials deeply involved in President Obama's deliberations on choosing a nominee to replace retiring Supreme Court Justice John Paul Stevens say no decision has been made and that interviews are contemplated and nominee qualifications are still being reviewed.
Both officials confirmed the long-held suspicion that Solicitor General Elena Kagan was a leading candidate for the high court vacancy. Both emphatically denied a decision has been made to nominate Kagan, a former Harvard Law School dean.
"I can tell you, without any hedging, that he has not made up his mind yet and is still talking to and (looking) through candidates," one senior official said. "It may well end up being her (Kagan), but there's no white smoke yet."
Said another official on the Beltway Kagan-to-the-court zeitgeist, another top official said: "It's a jump ball."
Kagan is one of the four possible nominees to have been interviewed by Obama and Vice President Joe Biden. The others are 7th Circuit Court justice Diane Wood, 9th Circuit justice Sidney Thomas, and D.C. Circuit Court of Appeals justice Merrick Garland.
Lieberman, Collins leaning toward taking administration to court over Fort Hood
By J. Taylor Rushing - 05/06/10 05:22 PM ET
Senate Homeland Security Committee Chairman Joe Lieberman (I-Conn.) and ranking Republican Susan Collins (Maine) on Thursday said they are poised to press their subpoena fight with the Obama administration into court.
Lieberman and Collins, speaking separately, both said the Justice and Defense departments have been uncooperative with their efforts to obtain more information about the November 2009 shootings at Fort Hood, Texas, that killed 13 people.
Both senators stopped short of saying they’ve made a final decision, but made it clear they are probably headed toward a court confrontation with administration lawyers based on doubt that the final round of negotiations would bring success.
“If they won’t respond, I think we have an obligation. It’s not easy to enforce a subpoena against the executive branch, but I’m going to make the fight,” Lieberman said.
“If we yield to the executive branch’s argument that they can’t provide us these witnesses because there’s a criminal proceeding, we’re going to create a terrible precedent for future Congresses that will allow future administrations to just cite that. It makes no sense to me.”
Calls for comment to the Pentagon were not returned immediately. The Pentagon has been concerned that releasing the information would jeopardize the criminal case against Maj. Nidal Malik Hasan.
Majority Leader Harry Reid (D-Nev.) said he hasn't gotten involved so far in the struggle between Lieberman and the administration, but that he remains hopeful of a resolution.
"I haven't been asked by either Lieberman or the White House to do anything on that, so I'm just going to wait and see what they work out," he said.
A court fight with the administration wouldn’t happen without a full vote by the Homeland Security and Governmental Affairs Committee and the Senate, which is far from certain. Congress could also cite Attorney General Eric Holder or Defense Secretary Robert Gates in contempt, but the enthusiasm for that among Democrats is similarly unclear.
Collins told The Hill she is “absolutely” in lockstep with Lieberman.
“I feel it’s our duty and I think it’s unfortunate that it’s come to this. But I think we have an obligation to get the information we need to do our investigation,” Collins said. “The administration just does not want to cooperate, and I think that’s just really unfortunate.”
Lieberman and Collins specifically want access to witnesses to the shootings, allegedly committed by Hasan, as well as data such as Hasan’s personnel file.
Since Lieberman subpoenaed Gates and Holder last month, the administration has shared limited information, but not enough to satisfy Lieberman or Collins. The two senators offered to follow a certain protocol regarding the sought-after information. The administration has also offered some private briefings.
Both Lieberman and Collins said Thursday that the administration has still been resistant to share information, even with their offer of safeguards.
“We’ve tried to show just what we would do to allow us to interview these people and to double-, triple-protect against pre-trial publicity, which is what they’re worried about,” Lieberman said.
Senate Republicans delay controversial appellate court pick Goodwin Liu
By Alexander Bolton - 05/06/10 04:53 PM ET
Senate Republicans have delayed committee action on Goodwin Liu, President Barack Obama’s pick for the 9th Circuit appellate court, for one week.
Members of the Senate Judiciary Committee gathered in the President’s Room just off the Senate floor Thursday afternoon to consider Liu and several other nominees.
The committee advanced four district court nominees but held up Liu, who has become a political lightning rod.
Republicans exercised their prerogative to delay a committee vote on Liu until next week. The four nominees advanced by the committee were also delayed a week by Republicans, according to a Democratic aide.
Judiciary Committee Chairman Patrick Leahy (D-Vt.) has scheduled a panel vote on Liu for May 13.
Sen. Sheldon Whitehouse (D-R.I.), who attended the meeting, called the delay “standard operating procedure for Republicans.”
Whitehouse held a press conference earlier Thursday to highlight that Republicans have held up 96 of Obama’s nominees.
Whitehouse praised Liu’s qualifications: “He seems to be bright, professorial, talented.”
Liu’s nomination has come to be seen as a warm-up fight before the looming battle to replace retiring Supreme Court Justice John Paul Stevens.
The New York Times has described Liu as a “liberal rock star,” and some Republicans want to send a message to Obama not to pick an overly liberal successor to Stevens.
Justice O’Connor raises issues of judicial independence and civics education at State Bar’s Annual Conventio
By Joe Forward, Legal Writer, State Bar of Wisconsin
May 6, 2010 − Former U.S. Supreme Court Justice Sandra Day O’Connor addressed the importance of judicial independence and civics education to the “continued vitality of our country” in her key note speech today at the State Bar of Wisconsin’s Annual Convention in Madison.
Introduced by Wisconsin Supreme Court Chief Justice Shirley Abrahamson, Justice O’Connor expressed her concern that elections and judicial campaigns are eroding public faith in the judicial system and talked about the “increasingly volatile judicial campaigns” in states across the country.
Justice O’Connor noted exorbitant campaign contributions to state judicial elections in places like Alabama, where nearly $5 million was spent in a race for a single supreme court seat in 2008. She said that 70 percent of the public believe that contributions influence judges, and the mere perception of impropriety “undercuts faith in the judicial system.”
To hear reactions on Justice Sandra Day O’Connor’s keynote speech, including thoughts from Wisconsin Supreme Court Justice Patience D. Roggensack, click here.
Noting that elections can still create good results, the broader problem calls for states to consider a merit- or appointive-based system, she said. Faith in the judicial system, she added, can only be maintained “if we keep out political influences.”
Justice O’Connor reminded us “that there are some serious issues that we are all confronting in electing the judiciary,” said Michael D. Leffel of Foley and Lardner LLP, Madison. “It’s a hot topic in Wisconsin, and we are going to have to debate that issue.”
Part of the problem, Justice O’Connor said, is that we are failing to impart the basic education needed for younger generations to understand the importance of a fair and impartial judiciary. She cited alarming statistics that demonstrate poor education on the democratic process and the branches of government, calling on members of the bar to help spread the message of civic education.
“In addition to reinforcing in an eloquent way the importance of the separation of powers, she charged us all to keep our role as counselors and educators,” said Beth E. Hanan, a trial attorney at Gass Webber Mullins LLC, Milwaukee.
Justice O’Connor referred to her website – www.ourcourts.org – developed to educate middle-school students and provide a tool for teachers to use in teaching civics and the court system. It is an interactive website that incorporates learning games and other information.
“It is essential for people to understand her comments on the judiciary to the functioning of our government,” said Thomas D. Zilavy of DeWitt Ross & Stevens, S.C., Madison. “Her efforts to encourage schools to incorporate [civic education] into their curriculum are absolutely outstanding.”
Panel discussion
After Justice O’Connor’s speech, she took part in a six-person panel entitled “Politicization of Judicial Election Campaigns: Whose Party is it Anyway?” that discussed judicial elections and alternatives to them in Wisconsin. She voiced her opposition to judicial elections, noting the problems associated with campaign funding from outside sources.
Chief Justice Abrahamson, who favors judicial elections, commented that elections can embolden judges by providing legitimacy, but the public needs access to more information. Justice O’Connor said Wisconsin can do better in electing state court judges. Both agree that education is a key to understanding the court’s role.
“Judges are not supposed to belong to anyone, that’s the bottom line,” said panelist Michael McCabe of the Wisconsin Democracy Campaign. “And the perception that they don’t belong is just as important. The alternative, McCabe said, was to insist on election reform and demand full disclosure of funding sources. Outside influence on rulings, he said, “can be problematic whether elected or appointed.”
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