LIVE: Confirmation Hearing for Supreme Court Nominee Judge Amy Barrett

by Nomad

Today is the first day of the Senate Judiciary Committee Confirmation hearing for Supreme Court nominee Judge Amy Coney Barrett. Barrett is an American attorney, jurist, and academic who serves as a circuit judge on the U.S. Court of Appeals for the Seventh Circuit. 

CNN has called her "a proven conservative with a compelling personal story." 

Barrett, the mother of seven children and a former law clerk to the late right-wing beacon Justice Antonin Scalia, Barrett, now 48, was a finalist for the Supreme Court spot that went to Brett Kavanaugh in 2018.

Democrats who are in the minority in the Senate allege Barrett's ultra-conservative views on such issues as abortion, same-sex marriage will disrupt the ideological balance of the high court.   

How the Kavanaugh Fiasco is a Test of the Ideals of the Women's March and MeToo

by Nomad

Despite the worldwide marches and the Me Too movement, the Kavanaugh confirmation debacle has shown in stark terms how little has changed when it comes to Republican respect for women.

Women's March

On January 21, 2017, something spectacular occurred. A worldwide protest, the largest single-day protest in U.S. history, as one source said, "to harness the political power of diverse women and their communities to create transformative social change."

Women’s March is committed to dismantling systems of oppression through nonviolent resistance and building inclusive structures guided by self-determination, dignity and respect.

In the US, between 3 to 5 million people put on their comfortable shoes and took to the streets. The message: the privileges of a male patriarchy- the old order- would no longer be blindly accepted. Women’s rights are human rights and human rights are women’s rights. And those rights must be respected.

Capital Punishment: Another Example of How Ted Cruz is On the Wrong Side of Public Opinion

by Nomad

Candidate Cruz's long-held support for capital punishment may have helped build his career but today, given the shift in public attitudes, it could be the kiss of death in the general election.

Since the time he was a Supreme Court clerk for Chief Justice Rehnquist, Presidential candidate Ted Cruz has been an ardent supporter of the death penalty. The adjective may actually be an understatement.

In some ways, Supreme Court clerks have the power of life and death in their hands. They are charged with evaluating death row petitions and issuing memos about the cases. Such memos normally consist of a brief review of the facts and then a dispassionate legal analysis as to whether the court should hear the case.

Cruz took that responsibility seriously. From what you read, his determination to justify the death penalty in the cases before him was a bit unseemly. Many who worked with Ted Cruz as a clerk, felt that he took a personal interest in highlighting the most gruesome aspect of each case.

Have Republican Candidates Huckabee and Cruz Just Committed Treason in the Kim Davis Case?

by Nomad

Statements made by two Republican candidates regarding the Kim Davis case may have crossed a line by encouraging rebellion against the authority of the Supreme Court. And it's called treason.

Committing treason in a nation which prizes the right of free speech has always been tricky business. Unlike many other countries in the world, in the US, people are allowed to say pretty much whatever they want. 

However, the freedom of expression has, contrary to conventional wisdom, never been absolute or unlimited. There are slander and libel laws, for example. Calling for insurrection is also proscribed as a abuse of freedom of speech. 

The  U.S. Code Chapter 115  defines treason like this:,

“Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”

Unitary Executive Theory: How the GOP in Congress is Destroying Cheney's Life Work

 by Nomad

Former vice president Cheney must be watching in dismay as the Republicans in Congress are tearing apart a doctrine that he has spent his whole life promoting.

The now-infamous letter of the 47 Senators  may not be treasonous although some on the Left may think so. The  unsolicited advice to the Iranians may not be a violation of the Logan Act and some lawyers might disagreed.

Nevertheless, in one aspect, there is something distinctly peculiar about what Congress did and has been doing since President Obama took office.

This new activism is a reversal of policy that has been the long standing hallmark of conservative principles. That principle is known as the Unitary Executive Theory and one of its chief promoters has always been former Vice president Dick Cheney.

According to this doctrine, all executive authority must be in the President’s hands, "without exception." The President and other members of the executive branch have special rights and privileges that come with the office. And the legislative branch, according to the proponents, has no authority to question presidential power. The president as the head of state and  that preeminence required Congress to recognize its lesser position.

The Best Supreme Court Money Can Buy

by Nomad

The disgrace of the Supreme Court's infatuation with corporations will, unfortunately, leave a stain on American justice long after the conservative Justices have retired.

The Alliance for Justice, (AFJ) an umbrella organization representing "a broad array of groups committed to progressive values and the creation of an equitable, just, and free society" has called the Supreme Court out for its unprecedented judgements favoring corporations.

With decision after decision coming down on the side of big business, the Supreme Court under Chief Justice John Roberts has proven itself to be willing and eager to twist the law to favor powerful corporate interests over everyday Americans.

The Supreme Court has clearly departed from its mandate to interpret the Constitution  and has taken upon itself to establish activist policies. 

In just the last few years, the Court has radically rewritten laws in order to shield big business from liability, insulate corporate interests from environmental and antitrust regulation, make it easier for companies to discriminate against women and the elderly, and enable powerful interests to flood our election process with special interest dollars. Fairness has been thrown out the window. The 1% keep winning while the 99% keep losing.

Its website lists the Court's infamous record of using the law to protect corporations. These are less widely known cases compared to the notorious Citizens United case or the recent Hobby Lobby decision. Nevertheless the legal precedents they set will have a negative impact for years to come.

The Long Struggle for Wage Equality for Women and Republican Road Blocks

by Nomad

Wage equality for women has been a long and difficult road, dating the Roosevelt era and before. Down through the years, step by step, progress against pay discrimination has plodded along, despite the numerous obstacles.

However, that struggle came to an abrupt halt last April when Republican Senators decided to shut down legislation to curb pay discrimination based on gender.
But the question is: will they pay a price in November?

In April of this year, Senate Republicans voted unanimously to block debate on proposed legislation aimed at closing the pay inequality between men and women. The GOP shut down a motion to proceed on the Paycheck Fairness Act with 53 votes for, and 44 against. That count fell short of the 60 needed to defeat a filibuster. 

As a result, the legislation was pronounced DOA and it marked the third time this particular proposal has failed. 

For Republicans, it was risky - some would say suicidal- thing  to do with the midterms coming up. However, in a marvelous bit of spin, Kentucky Senator and Senate Minority Leader Mitch McConnell said the legislation was.. 

"just another Democratic idea that threatens to hurt the very people that it claims to help. ... We've already seen what five and a half years of Washington Democratic control has meant. More poverty and lower wages for women."

McConnell is facing Democratic opponent Alison Lundergan Grimes in the mid-terms. A new Republican poll has found that Grimes is leading McConnell by three points. The gap is even larger among women voters in his state. And that's no wonder: on a variety of women's issues, McConnell's voting record is hard to defend.

Exactly how tightening prohibitions against sex discrimination in the payment of wages, adds up to poverty and lower wages for women, is part of the magical thinking of the conservative GOP. Fortunately well-financed (think corporate funding) organizations are quick to plug up any logical leaks in the sinking ship.

For example, the American Enterprise Institute (AEI), an influential conservative think tank, claimed in an op-ed piece for The New York Times that:

"discrimination plays little role in pay disparities between men and women, and it threatens to impose onerous requirements on employers to correct gaps over which they have little control."

That's not too surprisingly an allegation for AEI.  That organization has long promoted the "advancement of free enterprise capitalism." Its board of trustees is literally a who's who of leading business and financial executives. Hardly what one would call a disinterested party. 

But for the Republicans, it is a link to the kind of power player that can finance re-election campaigns.

On the other side of the political aisle, Senate Majority Leader Harry Reid (D-NV) told reporters, "For reasons known only to them, Senate Republicans don't appear to be interested in closing the wage gap for working women."

A Look Back

Turning back the clock 78 years, we see this June 1936 editorial cartoon in a New York newspaper. The cartoon shows an exhausted bedraggle cleaning women holding a note that reads:

Any wage they can get away with.

"It's Constitutional!" was the title. What could the cartoon be referring to? 

Because it seemed so timely, it sparked my curiosity. 

Just a two days before the publication of that cartoon, the conservative Supreme Court had handed down one of its most startling and most unpopular decisions.

In the case of Morehead vs. New York, the court struck down a New York minimum‐wage laws for women and children. 

Law Professor's Advice: Guilty or Innocent, Never Speak to Police.. Ever

by Nomad

If there's one thing that most defense lawyers will tell you, it is this: Whether you are guilty or innocent, never dare to speak to the police.
Once upon a time, the Supreme Court gave its full support to every citizen's constitutional right to remain silent. 

Here's an interesting - but rather long- lecture by Mr. James Duane, a professor at Regent Law School and a former defense attorney, telling his students why a defense attorney should always advise his client never, under any circumstances, talk to the police. His reasoning is sound but it's the kind of advice that most police investigators would prefer you didn't know.. and certainly not apply. 

Are GOP Governors who Reject Medicaid Expansion Violating their Residents' Civil Rights?

by Nomad

If the first duty of government is to protect its citizens then isn't access to health care included in that idea? 

Are the 21 governors that rejected the Medicaid expansion violating their state residents' civil rights? 

It has been long recognized that the first duty of government is to protect the people. Everything else- including party politics and budget considerations come after that responsibility. (This was something that even Ronald Reagan recognized.)  

The Most Basic Duty of Government

The idea that government has its special duty is based on the so-called Social Compact that pre-dates (but is upheld by) the US Bill of Rights and the Constitution. 

It works like this: The government has a duty to protect and in turn, all citizens conditionally surrender their absolute freedom (but not surrender absolutely) as a form of consent. Furthermore as subjects, all citizens were obliged to contribute- in the form of taxes and in the form of general compliance- to maintain the general welfare of the nation.
More and more we see some- especially in the Tea Party- calling to question this compact. 

Junk Science? Questions about Expert Testimony in Michigan's Same-Sex Marriage Ban Trial

by Nomad

The testimony of the state's expert witness challenging Michigan's same-sex marriage took an amusing turn when he admitted that he believed gays would suffer eternal damnation in the depths of hell. But that's only half of the story. 
Read more to learn the rest.

Last week, the testimony in a federal court challenge on Michigan's same-sex ban took an unusual turn. In order to show a clear bias in what was supposed to be pure science- the plaintiff's attorney asked Professor Douglas Allen, a Canadian economist about his personal views on homosexuality.

The Monkey Trial Trick
As the state's expert, Professor Allen had warned the court that, after reviewing 60 same-sex parenting studies over a 15-year period, he recommended that the state uphold its ban. On the surface, the testimony seemed persuasive.

Then, Attorney Ken Mogill asked Allen:

“Is it accurate that you believe the consequence of engaging in homosexual acts is a separation from God and eternal damnation? .. in other words, they’re going to hell.”

“Without repentance, yes,” answered Allen.

This courtroom technique is straight out of the historic "Scopes Monkey Trial" of 1925 in which Tennessee attempted to ban the teaching of evolution in the state's public schools. Those bans came after lobbying from by World Christian Fundamentals Association whose president also happened to be a state representative. (In the same-sex marriage debate, it's a bit more camouflaged and involves a few politically-active Christian groups.)  The climax of the Scopes trial had one legendary attorney the great William Jennings Bryan, taking the stand and being quizzed about his religious views. The defense attorney, Clarence Darrow, in effect, publicly humiliated the state's attorney. 

(However, it should be recalled too that the Tennessee court found that the teaching of evolution could be banned and the Supreme Court upheld that decision. It was a victory for fundamentalists though it is usually portrayed as victory for progressives, a victory of science over superstition.

In any event, the same-sex marriage bans have not met with the same Supreme Court approval, In fact, the decision by the high court has been the key to overturning the discriminatory laws on a state-by-state basis.
Douglas' answer suggested that his pure science might not be quite as pure as he suggested. Naturally, the courtroom exchange made all the headlines but it was only half of the story. 

  

Recess Appointments and Partisan Obstructionism: Two Sides of the Same Coin

by Nomad

This week the Supreme Court is reviewing a lower court's decision which declared unconstitutional President Obama's use of recess appointments.

The ramifications of a Supreme Court decision upholding the lower decision could be disastrous for Obama. Why? Should the Senate fall into the hands of the obstructionist Republicans, Obama's chances of getting any nominations may be impossible. How the justices decide in this case could play a crucial factor not only in the remainder of this administration but in future presidencies.

Recess Appointments

Like a lot of cases before the Supreme Court, the actual importance and impact are buried beneath mounds of mundane details. Such is the case of the constitutionality of recess appointments. For instance, strictly speaking, the case is straightforward. It revolves around the president's ability to make appointments while the Senate is at recess. What are the limits to this presidential power according to the constitution? 

There is no reason question whether the US constitution gives Presidents the right to fill a vacant position if the Senate is in recess. Wikipedia describes recess appointments this way:

The U.S. Constitution requires that the most senior federal officers must be confirmed by the Senate before assuming office, but while the Senate is in recess the President may act alone by making a recess appointment to fill "Vacancies that may happen during the Recess of the Senate."   

In a happier world in which all of the branches of government work together and make nice to one another, this could be seen as merely a way to smooth the confirmation process along. But of course, that's not the world in which we live and Washington has never a happy place for long. 

Unions and Citizens United: What Romney Doesn't Want You to Know

by Nomad

I

n a desperate attempt to find some issue that he can talk about- apart from foreign policy, Medicare,  gay marriage, social security, health care, tax reform or any of the other subjects he considers "political landmines"-  candidate Mitt Romney has selected an easy punching bag- teacher unions. 

Last week, Romney recently made clear his contempt for both teachers and for free speech at a roundtable discussion. He began to lecture the attendees with his opinions on teachers unions and the voucher system. When one member of the group offered her opinions on the subject, he silenced her with the imperious statement “‘I didn’t ask you a question." 
This was a monologue, not a dialogue. This conversation went one way only.

Yesterday while attempting to take another shot at teachers unions he, sadly, revealed his complete ignorance (or his hypocrisy) on one of the most important and damaging court decisions of our times.

(CBS News) Republican nominee Mitt Romney said Tuesday that Democratic politicians have a conflict of interest in dealing with teacher unions because the unions contribute so heavily to their campaigns. He suggested that money should somehow be diverted or cut off, although he did not offer details.

The bigger problem, Romney said, is that "the person sitting across the table from them should not have received the largest campaign contribution from the teachers union themselves ... [It's] an extraordinary conflict of interest and something that should be addressed."

He later added that "we simply can't have" elected officials who have received large contributions from teachers sitting across from them at the bargaining table "supposedly" to represent the interests of children. "I think it's a mistake," Romney said. "I think we have to get the money out of the teachers unions going into campaigns. It's the wrong way for us to go. We've got to separate that."

There’s a very good reason why Romney should feel embarrassed to have such a remark. He appears uneducated to the full scope of the 2010 Citizens United decision. 

Runaway SuperPACs and the Devolution of Mitt Romney

by Nomad

In yet another case of an "evolving" opinion, Republican Mitt Romney has once again betrayed the high-minded rhetoric of his past campaigns in favor of a more corrupt but lucrative political strategy. Romney has now made it quite clear, he has a price and he is ready to take bids.

Back in 1994 in Burlington, Massachusetts, Mitt Romney spoke about the growing influence of political action lobbying organizations. He told the gathered businessmen the Burlington Business Round Table, 

“I also would abolish PACs. You probably have one – I don’t like them. I don’t like the influence of money – whether it’s business, labor or any other group. I do not like that kind of influence. Lobbyists, I want to register, know who they are. I want to make sure gifts are limited. I think we have to really become much more vigilant in seeing the impact on money – and I don’t care how it’s organized – on politics.”

The "evolved" Romney of today is, however, far less idealistic and, with the Supreme Court's support of Citizens United, he seems quite willing to sell himself to whomever has the cash. Romney's SuperPAC (the nonsensically named) Restore Our Future announced in June that it had collected $100 million. Late last year, I wrote a detailed post on the early million dollar contributors to Restore our Future and the methods they used to remain covert. Open Secrets has a updated list of the names and amounts of the top contributors.

The Long Con Continues: Eric Cantor and Mitt Romney’s Shameful Lies about the Vote to Repeal

by Nomad

Following the news that the Supreme Court had declared the health care reforms, House Majority Leader Eric Cantor, Republican congressman from Virginia, announced that the House Republicans would vote to repeal the Affordable Care Act on July 11. According to CBS report:

Cantor said that the continued debate over the health care law is "all about this election and whether this law is going to go forward or not... Mitt Romney will be the one that will, frankly, get the health care that most people want back on track."

Attempting to transform what would normally be considered a humiliating defeat into campaign rhetoric for the Republican challenger is an understandable, even bold, maneuver but it does sound strangely detached from reality. Obamacare was actually based on the plan that Romney as governor enacted in Massachusetts. This puts him in the rather idiotic position of calling for a repeal of a healthcare plan he once supported and hailed as his victory when he was governor.

Mainstream Media Misreports Supreme Court ACA Decision

by Nomad

Finally, Americans got some good news today. (At least, Obama did.)

Against expectations, the Supreme Court ruled that the individual mandate- a key component of the Affordable Care Act- is after all constitutional. It was really a 50-50 call because with the recent decisions by the court, even the most preposterous result was quite possible.

Of course if you were a devoted viewer of CNN and Fox News, you might have never known what the Supreme Court ruled. Here are screen shots (courtesy of ThinkProgress) of what those so-called news organization reported.

When the Supreme Court Struck Back at Roosevelt 2/2

NRA (National Recovery Administration) member: We Do Our Part (Photo credit: Wikipedia)

by Nomad

In the PART ONE, we examined the attempts by Franklin Roosevelt to develop a series of far-reaching social programs to get the American economy back on its feet. One of his many programs was the National Recovery Act, which attempted to restart and reform the industrial sector. Roosevelt sought to standardize manufacturing and labor by drafting a uniform code for all industries. It was a bold initiative.

The Case of Sick Chicken

Under the blanket codes of National Recovery Act (NRA), Brooklyn-based Schechter Poultry was found in violation of the industry codes for the poultry industry. The sixty charges against the retailer were later to be reduced to eighteen, and among those eighteen charges were "the sale to a butcher of an unfit chicken" and the sale of two un-inspected chickens.

The poultry industry in the 1930s had long been corrupted by gangsters and the Schetchers had struggled hard to evade “the rackets.” When the NRA was introduced, Joe Schechter joined in and displayed the blue eagle in his window. He had little interest in following the codes and it wasn’t long before inspectors found him out.

When the Supreme Court Struck Back at Roosevelt 1/2

by Nomad
In the past I have written about Roosevelt’s forgotten battle with the Supreme Court in 1933 but I’d like to return to this lost bit of history for a closer look. It isn’t all about our grandfather’s history because at this time, in these days prior to the Supreme Court ruling on the constitutionality of President Obama’s healthcare reform program, the parallels, I think, are striking. 

It isn’t the first time the executive and the judicial branches have been at loggerheads and perhaps lessons can be learned from history.

Action Now

The 1932 presidential election was not even close. President Herbert Hoover’s failed policies and his apparent detachment from the trials of his own people during the Great Depression won his few votes. At no time in American history had the conditions been quite as unforgiving as this and yet Hoover seemed out of touch with the average Americans. 

Like most economists of his age, Hoover on the other hand had warned against "mindless experimentation" in established government policy. He felt that the best policy was to wait things out, the national economy would recover on its own. It always had before.

MEK and the Hypocrisy of the Anti-Terrorism War-Mongers

by Nomad

John Bolton

Pulitzer Prize-winning journalist Seymour Hersh, writing for the New Yorker, has uncovered evidence that suggests that the United States military trained the People's Mujahedin of Iran or also known as the Mujahedin-e Khalq (MEK) in the deserts of Nevada in 2005.

Bush Hypocrisy

The Hersh article, Our Men in Iran? is, by any definition, an eye-opener and reveals the full extent of Bush administration’s hypocrisy of its so-called war on terror. 
According to Hersh,  the Department of Energy’s Nevada National Security Site about 65 miles outside of Las Vegas, was used as a clandestine training base for a terrorist group.

It was here that the Joint Special Operations Command (JSOC) conducted training, beginning in 2005, for members of the Mujahideen-e-Khalq, a dissident Iranian opposition group known in the West as the M.E.K.
The M.E.K. had its beginnings as a Marxist-Islamist student-led group and, in the nineteen-seventies, it was linked to the assassination of six American citizens. It was initially part of the broad-based revolution that led to the 1979 overthrow of the Shah of Iran. But, within a few years, the group was waging a bloody internal war with the ruling clerics, and, in 1997, it was listed as a foreign terrorist organization by the State Department. [emphasis mine]

Strip Search: the Supreme Court's Attack on the Fourth Amendment

by Nomad

In yet another questionable ruling, the Supreme Court has decided in a 5-4 vote that police departments have every right to demand a strip search from any person they arrested, even for minor offenses, “before admitting them to jails even if the officials have no reason to suspect the presence of contraband.” 

To clarify (somewhat) the meaning of the terms: According to Daphne Ha, writing for the Fordham Law Review:

A strip search is “[a] search of a person conducted after that person’s clothes have been removed, the purpose usu[ally] being to find any contraband the person might be hiding.”

Strip searches generally do not involve scrutiny of body cavities. However, policies in correctional facilities tend to include visual body cavity searches under the broad term “strip searches,” and only distinguish between visual and physical body cavity searches. This definitional problem is aggravated when courts describe strip search policies without clarifying whether a search includes a visual search of body cavities.

Supreme Court Reviews Obama's Health Care Reform: A Question of the Character of A Nation

by Nomad

As the Supreme Court begins a long review of the health reform plan with a final decision sometime around June, many on the Right are already predicting trouble for Obama. In particular, the justices are giving special attention to the constitutionality question of the individual mandate, a key feature of the program. Without a mandate, the problem of the uninsured citizen will likely continue. As author Rick Newman, writing for USNews, reports:

At the eye of this gathering storm is the "individual mandate," a key part of the law that will require most Americans to buy a minimum level of health insurance by 2014, or ask the feds for an exemption. Those in violation will have to pay a penalty fee that could be as high as the annual premium on a basic insurance plan. The mandate, which some people consider highly intrusive, generated court challenges almost as soon as Obama signed the law, with the Supreme Court now due to decide whether it's constitutional. If not, the whole reform scheme could unravel.