SUPREME MISTAKES

This about sums it up ...

- Mark

ROMNEY: "CORPORATIONS ARE PEOPLE" ... SO, WHERE'S THE BIRTH CERTIFICATE?

On the campaign trail Republican presidential candidate Mitt Romney shot back at a heckler with the following:

 

"Corporations are people, my friend... of course they are. Everything corporations earn ultimately goes to the people. Where do you think it goes? Whose pockets? Whose pockets? People's pockets. Human beings my friend."

 

While Mitt's been criticized for making the corporations-are-people-too claim, it's actually true. And it's backed by numerous Supreme Court decisions. I think what Mitt was inarticulately trying to point out is that after more than two centuries of litigation, and the functional equivalent of a typo, corporations have effectively been granted all the rights and privileges as natural born citizens in the United States.

 

 

 

It's called corporate personhood, and it's undeserved and dangerous, which I've written about many times.

 

My question, once again, is where's the birth certificate?

 

- Mark

SUPREME COURT POLARIZATION?

Is the Supreme Court becoming increasingly politicized and polarized, just like the rest of society? Click on the charts, which are from the NY Times, below.

What you see on the left side is a graph that tells us that when U.S. Supreme Court Justices make clerk appointment they have traditionally been done according to party affiliation (in over simplified terms, Supreme Court clerks are glorified interns).

As you can see from the 1975-1980 chart on the left, conservative members of the court overwhelmingly hired clerks who served Federal judges appointed by Republican presidents. Similarly, but not to the same extent, the liberal half of the court tended to hire clerks who had worked for Federal judges appointed by Democrats.

This isn't necessarily ground-breaking news. But this is ...

If we look at the years between 2005 and 2010 we see a much stronger partisan pattern emerging, with two conservative Supreme Court justices staying entirely away from hiring "liberal" interns. In fact Justice Clarence Thomas has not hired a liberal clerk among the 84 interns he's selected, saying, “I won’t hire clerks who have profound disagreements with me ... It’s like trying to train a pig. It wastes your time, and it aggravates the pig.”

So much for wanting to hear both sides of an argument.

What this suggests is that, in an increasingly polarized political environment, party affiliation matters when it comes to picking Supreme Court interns (but especially for the more conservative wing of the bench). This is an extremely important development in America's legal system because Supreme Court law clerks routinely:

... do much of [the justice's] work and influence their thinking. They make recommendations about which cases the court should hear, help prepare the justices for oral arguments, discuss the cases with them and draft major portions of the opinions and dissents.

Moreover, with the retirement of Justice John Paul Stevens, "it appears that none of the justices routinely write first drafts of their opinions" because they prefer to "supervise and revise drafts produced by their clerks." According to one scholar who studies the Supreme Court, this means that:

We have created an institutional situation where 26-year-olds are being given humongous legal authority in the actual wording of decisions, the actual compositional choices.

What this means is that a young conservative legal clerk, who's angling for a lucrative job in the private sector, might be inclined to select cases or write opinions that advance the position of corporate America, and their lobbyists, by signing off on the use of corporate money as a form of "speech" in political campaigns.

Not only does this advance the conservative cause, but having a hand crafting legal opinions that give corporate America a larger voice in our political system is quite a resume builder.

At the end of the day we want to keep in mind that our judicial system - but especially the Supreme Court - is supposed to be the one branch of government that is both contemplative and above politics. It's also supposed to be the branch of government where the wisest and most experienced legal minds interpret our Constitution, and the law.

If there's anything to the NY Times' story, this may no longer be the case. And this means trouble for democracy in America.

- Mark

EXPLAINING SEN. BOND'S RAMBLING ON MSNBC

Missouri Senator Kit Bond (Republican) makes the argument that President Obama's handling of terror suspects is making us less safe. You be the judge as to strength of Senator Bonds' argument.

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What's clear is that Senator Bond needs to familiarize himself with some of the bigger Supreme Court cases surrounding the issue of prosecuting enemy combatants, and what's been happening in recent cases (he also looks a bit lost from time to time, but I'll leave that for another day).

Both Hamdi v. Rumsfeld (2004) and Hamdan v. Rumsfeld (2006) make it clear that (1) U.S. citizens classified as enemy combatants (Hamdi) can not be held indefinitely without due process protections, which include the right to counsel, (2) the executive branch can't control all aspects of a trial concerning enemy combatants (evidence gathering, prosectution, appeal, etc.) with military commissions not sanctioned by Congress, and (3) Geneva Convention protections apply to enememy combatants.

While Hamdi v. Rumsfeld has little to do with one of the cases Sen. Bond discusses - the Christmas day bomber - it is instructive for what it tells us about the rule of law in America, even when it comes to enemy combatants. Primarily, Hamdi suggests that we don't lose our heads because a group of crazies attacked us. It also tells us that we can follow the rule of law even when the going gets tough.

At the heart of Senator Bonds' remarks is his concern that the Christmas day bomber, Umar Farouk Abdulmutallab, will use civilian courts as a soapbox from which to recruit other would-be terrorists in America (because we all know how effective the Charlie Manson trial was in furthering his Helter Skelter delusion). Senator Bond seems to forget that our court forums aren't at the heart of what drives the al Qaeda nut jobs. There are a ton of books and articles written that make this clear.

Worse is Senator Bond's claim that reading Abdulmutallab his Miranda rights made him clam up. This, according to Senator Bond, makes America less safe. If we are to accept the FBI's account of things - which I'm inclined to do - Senator Bond is not telling the truth. Put another way, he's lying. According to FBI Director Robert Mueller, who testified in front of Congress, the FBI agents who interrogated Abdulmutallab did not advise him of his Miranda right until after he made it clear that he wasn't going to cooperate with any more questioning.

Just as significantly, Abdulmutallab began to testify after his relatives talked to him and convinced him to cooperate. They did this not because they feared that Abdulmutallab would be tortured. Rather, according to a senior administration official, they helped investigators because they had faith in the U.S. legal system:

One of the principal reasons why his family came back is because they had complete trust in the US system of justice and believed that Umar Farouq would be treated fairly and appropriately ...

Look, if Senator Bond is concerned about Miranda rights, interrogation techniques, and how we go about securing information, he needs to refamiliarize himself with the Shoe Bomber case of Richard Reid (among others). He was convicted and sentenced to life in prison by a civilian court on the intelligence he offered up after he was was read his Miranda rights. Reid's conviction happened during the Bush administration. Hundreds more have been prosecuted under similar circumstances in civilian courts as well (during the Bush administration).

At the end of the day, we need to remember that there are terrorists and other criminally crazy thugs who don't want to be captured in or by the United States. This happens for a reason. Drug kingpins (like Pablo Escobar) and others undertand how competent and tough our legal system is, and they make extraordinary efforts to avoid capture and extradition to the United States. Republicans don't seem to appreciate this, which is puzzling for many. But not me.

In my view the Republicans fear using our civil court system to try suspected enemy combatants not because of traffic jams and the expenses tied to a trial, as they claim. These are red herrings. Rather, they understand that the more success we have in civilian courts, the more people will understand that their militarized position and fear mongering doesn't always hold water. This makes them less relevant. The fact that they can't scare America into being afraid like they are, quite frankly, scares them.

I'll leave it at that for now.

- Mark

SAMUEL ALITO & THAT DAMN TYPO

In Baker v. Carr (1962) the Warren Court ruled that the principle of One Person One Vote had to be respected, and was perhaps the most fundamental element of American democracy. At the heart of the case were states that had failed to redraw districts. This left some districts with significantly less, or more, voters. According to the Warren Court, this undermined the principle of equal, or proportional, representation and violated the idea that each citizen's vote should carry equal weight during every election cycle.

The Warren Court's decision was so significant that Earl Warren would call Baker v. Carr (again, which dealt with redistricting and proportional representation) the most important decision his court ever made. As he put it, legislators represent people, not rocks or trees.

The same can not be said about corporations.

POLITICAL VOICE & PROPORTIONAL REPRESENTATION
I bring up Baker v. Carr because it gets to the heart of what Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) was saying yesterday when he criticized the Supreme Court's 5-4 decision on Citizens United v. Federal Elections Commission. The Citizens United decision allows corporations to enhance their political voice by bankrolling political campaigns. This undermines the spirit of the Baker decision because it super charges the influence of corporations and the corporate lobbyists who represent their very narrow interests.

More specifically, instead of having disproportional political weight lie in the hands of a few people who live in sparsely populated areas - as was the case before the 1962 Baker decision - the Citizens United decision shifts political weight to a few corporations who have the resources to drown out the voice of the middle class. This caters to the interests of a select, pampered, few and violates the principle of proportional representation and One Person One Vote.

This, in part, explains why Sen. Leahy criticized Citizens United as the "most partisan decision since Bush v. Gore." He sees a political system tilting toward a condition (1) where we don't always need to count the votes (Bush v. Gore, 2000) and (2) where one group will have disproportional power over elections (Citizens United, 2010).

(As a reminder, in Bush v. Gore the Supreme Court ruled in a 5-4 decision that because Florida's vote counting standards differed from ballot to ballot, precinct to precinct, and county to county that the Florida Supreme Court's recount order was "unconstitutional." Left unsaid is that vote counting standards differ from state to state. Still, the Supreme Court stopped the Florida recount. According to Justices Rehnquist, Scalia and Thomas the recount order, which provided instructions, was unconstitutional because only state legislatures - who have created different standards across the nation - can make election law. Recognizing the Gordian Knot they had tied themselves into the Supreme Court limited it's divided opinion only to the Bush v. Gore case.)

With this background it's easier to understand why Sen. Patrick Leahy criticized Justice Samuel Alito yesterday. Simply put, he sees an increasingly politicized Supreme Court. No doubt prodded by Justice Alito's "that's not true" moment during President Obama's State of the Union address, Leahy took aim at Justice Alito's new "activist" position.

Here's the money quote from Sen. Leahy:

"In his confirmation hearing, Justice Alito — I might say under oath — testified that the role of the Supreme Court is a limited role. ... It has to be equally vigilant of not overstepping the bounds and invading the authority of Congress. That was then, when he was seeking confirmation. This is now."

Leahy's essentially saying Justice Alito's a scoundrel, and not a man of his word.  But this is a throwaway ...

CORPORATE PERSONHOOD, OR JUST A TYPO?
Ranking judiciary committee member Sen. Jeff Sessions (R-Ala.) didn't take kindly to Sen. Leahy's words about Justice Alito, and shot back at both Leahy and President Obama (for scolding the Supreme Court), saying, "I'm disappointed that the president and my colleagues are attempting to politicize a very, very serious First Amendment question."

What he's really saying is that corporations have (or should have) all the rights and privileges as voters because, after all, they're people too. Is this true? Let's review:

1. CORPORATIONS AREN'T PEOPLE: Free speech is designed to protect the actions of naturalized and/or U.S. citizens. Corporations are neither.

2. THAT TYPO: Corporations are viewed as "persons" protected under the 14th amendment only because of the functional equivalent of a typo, not a Supreme Court decision. Put another way, corporate "personhood" status was an accident which means their claim to equal free speech status is not etched in stone.

3. THE FIRE PRINCIPLE: If we can't yell fire in a crowded theater, corporations should not be able to yell fire (or set a fire) during a political campaign. They need limits like we do.

4. CORPORATE PRIVILEGES: Unlike individuals, corporations regularly get favorable legislation (think bailouts), subsidies (think agriculture), generous tax write-offs (too many to list here), legal exemptions that boost their bottom line (especially Big Pharma), etc. They also have a limited liability standard, which you and I don't have (think exploding Pintos and how decision-making Ford executives escaped responsibility), and can live on indefinitely.

5. FOREIGN/SUBSIDIARY SHELL GAMES: Foreign corporations have subsidiaries through which they can access teams of Madison Avenue executives who can distort and elevate their "voice" above Joe Six-Pack's. 

6. LEGAL SHELL GAMES: Corporations can find legal cover behind proprietary rights (trade secrets) when called into court. This means they can both distort their voice, and then hide it. Apart from pleading the 5th, Joe Six Pack can't do this.

And the list goes on ...

CONCLUDING COMMENTS
fateful typo that granted them corporate "personhood" status.

This has enabled corporations to secure favorable legislation that increasingly allows them to act on their own (with less government oversight), ignore the public interest (think subsidized and protected health care industry), and to make more money with government-escorted profits (think Wall Street). Granting corporations the ability to use unlimited money in political campaigns, as the Citizens United v. Federal Elections Commission decision does, accelerates this process.

If we want to maintain Abe Lincoln's "Government of the people, by the people, for the people" maxim - and the power of One Person One Vote - Congress needs to fix Citizens United. More importantly, we need more of our elected representatives like President Obama and Senator Leahy to speak out against it.

American democracy, proportional representation, and the principle of One Person One Vote should not be drowned out by a judicial bench that not only believes corporations are people too, but has already said that we don't need to count all the votes.

- Mark

JUSTICE ALITO'S STATE OF THE UNION MOMENT

I generally liked President Obama's State of the Union speech tonight, and especially enjoyed watching the Republicans sit while others applauded Obama's tax cut and helping the middle-class proposals. For me, though, the highlight was watching Associate Justice Samuel Alito mouth something to the effect of "that's not true" during the speech.

Justice Alito was responding to President Obama's comments that all but scolded the Supreme Court for their decision this past week, which gave corporations the Green Light to spend as much money as they want on political campaigns. The Supreme Court's 5-4 decision is based on the notion that spending money equals speech. As such, the court ruled that the state has no business restricting the "free speech" of corporations because they're accorded the same protections as people under the 14th amendment (equal protection clause).

Missing in the Justices opinion is how a simple court reporter, who reworded a Supreme Court decision over 120 years ago, provided them with the "precedent" they needed for their decision.

As I wrote a few posts back, this week the U.S. Supreme Court essentially granted corporations the legal right to use all the financial resources at their disposal to influence political campaigns (because we all know that you and I have $10 million lying around the house, so we can match them any time we want, right?). 

Consider this: During the last presidential election, all candidates for federal office spent around $3 billion on their political campaigns. Three billion dollars was Exxon's profits for one quarter.

So I'm glad President Obama - who taught constitutional law at the University of Chicago - took the opportunity to make the comment. Undoing over 100 years of legal precedent because you think corporations are people is not good for America.

Alito and his brethren needed the scolding.

- Mark

POSTSCRIPT: It appears I'm not the only one who took notice of Alito's State of the Union moment (now last night). Additional commentary on the Supreme Court case Citizens United v. Federal Elections Commission, and Justice Alito's moment, can be found here, here, and here.

TODAY'S SUPREME COURT DECISION ... AND THAT FATEFUL TYPO

In 1907 Congress passed a law that prohibited corporations and banks from contributing money to federal campaigns. Teddy Roosevelt, who made a name for himself as America's Trust Buster (breaking up Standard Oil), supported the legislation because of the amount of power corporations had over elections and the political process.

Put simply, corporations were buying and corrupting our state and federal governments.

Later, in Buckley v. Valeo (1976), the Supreme Court ruled that spending money to influence elections is a form of constitutionally protected free speech (but the SC did uphold a federal law which set limits on campaign contributions).

It appears that this all went out the door with today's Supreme Court decision. 

In a 5-4 decision the majority said that the government has no business regulating or limiting political speech by putting limits on corporate contributions. Specifically, since corporations use money to voice their opinion, and are considered protected persons, the Supreme Court said that the state could not violate their First Amendment rights (free speech).

In practical terms, corporations can now spend what they want on political campaigns.

One of the issues that should be addressed (hopefully) after this decision is whether corporations should be accorded the same protections as living, breathing human beings in America. Consider the following:

1. Corporations have the financial resources to hide behind propriety rights, indefinitely.
2. Corporations can hide behind different bankrutpcy laws.
3. Corporations can be foreign owned.

More importantly, people often forget that corporations gained "personhood" status because of the functional equivalent of a typo in 1886. Consider this ...

In the Santa Clara County v. Southern Pacific Railroad Company (1886) decision, the Supreme Court ruled that corporations are entitled to 14th Amendment protections when it came to taxes (yes, I've deliberately oversimplified the primary issue involved here). They had lost their initial court effort in California's Superior Court. This is where it gets really fun.

The railroad company used the Jurisdiction and Removal Act of 1875 - which was designed to help blacks avoid hostile southern state courts in their pursuit of justice - to appeal their case to the U.S. Supreme Court. The U.S. Supreme Court ruled in the railroad's favor. Their decision said nothing about corporate "personhood" (it focused on the tax claim). Then a court reporter - not a SC Justice - wrote a case summary of the decision in the headnotes that would literally change the content of the decision.

In the summary the reporter wrote that corporations enjoy the same rights under the 14th amendment (equal protection, 1868) as does a natural person. The U.S. Supreme Court didn't issue this interpretation. A court reporter did!

And just like that - because of the functional equivalent of a typo - corporations were enshrined with the same 14th amendment protections as living and breathing people. Now, because of Chief Justice Roberts and Justices Scalia, Thomas, Kennedy, and Alito, they can spend as much as they want ... because they're people too.

- Mark

CORPORATE "PERSONHOOD"

Following the comments of SC Justice Sonia Sotomayor, it appears that we will be discussing the official status of corporate "personhood" some time in the future. This NY Times op-ed, "The Rights of Corporations," is a good primer on what may be coming down the pike.

- Mark

REIN IN THE NEANDERTHALS

In what can only be described as an attempt to insure that they continue to be viewed as little more than a band of angry white males - who are ready to throw a political temper tantrum at the drop of a hat - a conservative group organized by Manuel Miranda and Mark Levin, a conservative talk show host, is urging Senate Republicans to filibuster (or hold up) Sonia Sotomayor's nomination to the Supreme Court. Miranda was an aide to former Tennessee Senator Republican Bill Frist.

For those of you who may have forgotten, Miranda is also famous for tapping into computers to gain access to Democratic political strategies concerning judicial nominees. He was dismissed from his post with Frist for doing so (actually, he was dismissed because he got caught). Other supporters from this Miranda-led group include evangelicals, gun-rights advocates, anti-tax leaders, anti-abortion groups, and libertarians.

The group say their intent is NOT to kill Sotomayor's nomination. Rather they want to provide time for lengthier debate on the merits of Sotomayor's nomination.

On the "merits"? If this is the case, and the group wants to be taken seriously, they need to start speaking up and ostracize those from the conservative wing who want to demean Sotomayor and the process by referring to her as "stupid," a "racist," an "affirmative action pick," and that "Hispanic chick lady."

Simply stretching out the process so the rants of their colleagues can get time to stick is not appropriate. If it's the merits of her qualifications they want to look into they need to start talking about the "merits" of her decisions, and not stand idly by as their ideological brethren call Sotomayor names and bring up quotes that are taken out of context.

Let me repeat, these guys need to shout down the Neanderthals and the knuckledraggers in their movement if they want their call to stretch out the process to be taken seriously.

If they start doing this talking about Sotomayor's qualifications for a few more weeks might even be enlightening. Her experience will carry the day. But something tells me that this isn't the political sideshow this circus act really wants to present. They want to taint and drag out the process. Senate Republicans need to ignore these people.

Stay tuned.

- Mark

POLITICAL RABIES HITS THE GOP?

As we move through the Supreme Court confirmation process of Sonia Sotomayor I would have to say that the best overview of how unhinged the Conservative smear camp has become are the pieces put together by MSNBC's Rachel Maddow. Here's a 12 minute clip from tonight's program that puts much of it in perspective. In a few words, like an animal with rabies, the party of Rush-Newt-Cheney attack with little or no thought for what they are doing.

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As Maddow points out, if Conservatives want to disqualify Sonia Sotomayor for her "empathetic" qualities, her "judges make law" comments (making her a "judicial activist"), or because her decisions might be influenced by her ethnicity or upbringing, Conservatives need to also disqualify Supreme Court Justices Alito, Scalia, and Thomas.

For me, however, the real proof that Conservatives have become unhinged and may be afflicted by what can only be called political rabies are comments that refer to Sonia Sotomayor as an "hispanic chick lady" (Glenn Beck) who is both "stupid" (Karl Rove) and "a racist" (Newt Gingrich). For his part, G. Gordon Liddy's threw in the comment that he hopes she's not "menstruating" when she's making big decisions. Rabies, indeed.

I'll be discussing all of this, and more, on Saturday's program.

- Mark

ALITO SAID WHAT?

Alioto vs. Sotomayor: A case of double standards?

Here's SC Justice Alito during his confirmation hearings ...

And that’s why I went into that in my opening statement. Because when a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position…

When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.



The far right will, no doubt, ignore this Alito clip. Rush, Newt, and the dittoheads are already on a roll. But watch Alito's full comments anyways. You can also see them here.

- Mark

LET THE FEAR-MONGERING FEST BEGIN

It didn't take long, but it appears that Conservative commentators are already in full Liberal Fear-Mongering mode over President Obama's nomination for the Supreme Court, Sonia Sotomayor.



Do these guys even remember what it's like to have a discussion on the issues? Or are they so intellectually bankrupt that fear-mongering is all that they've got left? Seriously, they're afraid of al-Qaeda so they fear-monger over shredding the Constitution and the defense of torture ... they're afraid of homosexuals so they fear-monger over tolerance ... they're afraid of strong women and people of color so they fear-monger over "liberals" ... and on it goes.

At what point do Conservatives grow a pair and stop the fear-mongering? Just asking.

- Mark