Think Progress

‘Party of No’ Continues To Hold Obama Judges Hostage

Last June, ThinkProgress reported that Senate conservatives were using single-senator anonymous holds to deny dozens of Obama nominees the up-or-down vote Republicans used to think was so important. 

Four months later, nothing has changed. Since taking office last January, only four of President Obama’s judicial nominees have been confirmed, despite the fact that President Bush’s judges received very different treatment:

Consider, for example, the judicial nominations process during President George W. Bush’s last two years in office, 2007 and 2008. Bush was deeply unpopular at the time, and he faced a Senate firmly under Democratic control. Still, a large number of Bush nominees sailed through. The Senate voted on more than one-third of Bush’s confirmed nominees (26 of 68) less than three months after the president nominated them. [...]

The story was similar in the first two years of Bush’s presidency: A Democratic majority in Congress confirmed 100 of Bush’s nominees in 17 months, even after delays due to a change in party control of the Sen. after Senator James Jeffords left the Republican Party in May 2001.

Blocking nearly every single one of a President’s nominees is unprecedented, but conservatives have played Calvinball with the Senate’s confirmation rules for decades.  During the Reagan and Bush I Administrations, then-Senate Judiciary Chair Joe Biden (D-DE) followed a longstanding rule allowing a nominee’s home state senators to block a judicial nominee, but only if both senators agreed to do so. After President Clinton took office and conservative Sen. Orrin Hatch (R-UT) became judiciary chair, however, the rules suddenly changed to allow a single-home state senator to veto a nominee — a power that segregationist Sen. Jesse Helms (R-NC) used to block every single one of Clinton’s nominees from North Carolina. Yet when Bush II took office, Hatch eliminated the home-state senator veto altogether.

This time, however, the right doesn’t even have enough votes to maintain a filibuster if the Majority Leader insists that President Obama’s nominees deserve the same favorable treatment he gave to President Bush’s; the only question is how long Reid will let the “Party of No” say no to Obama’s judges.

‘Tenther’ Activists Add The Federal Highway System To List Of Programs To Kill

In a recent radio interview, Rep. Carol Shea-Porter (D-NH) made the seemingly-innocuous statement that the federal highway system, as well as federal laws ensuring safe drugs and safe airplanes, are constitutional. Nevertheless, Shea-Porter is now under attack by “tenther” activists who believe that virtually everything the federal government does is unconstitutional:

Author and historian David Barton, the president of WallBbuilders, [sic] says Shea-Porter’s comments reflect her view that Washington government should run everything. He notes that both the Ninth and Tenth Amendments say anything that is not explicitly covered in the Constitution belongs to the states and to the people.

“All of those issues belong to the states and the people. Healthcare is not a federal issue. It is a state and people issue — the same with transportation. The Constitution does say that the federal government can take care of what are called the post roads — those on which the mail travels — but outside of that, states are responsible for their own highways, their own roads, their own county, local, state roads,” he notes. “And her comment about, ‘Well, the Constitution doesn’t cover drug use and drug abuse’ — yes it does, and that is under the criminal justice issues that belong to the states.”

As ThinkProgress previously reported, conservatives are increasingly enraptured with tentherism, which claims that landmark federal programs such as Medicare, Social Security, the VA health system and the G.I. Bill are violations of the 10th Amendment — and many leading conservative officials are determined to impose the tentherism on the country. Rep. Michelle Bachmann (R-MN) is a tenther, as are Texas Gov. Rick Perry (R) and Sen. Jim DeMint (R-SC). Supreme Court Justice Clarence Thomas embraces tenther claims that the federal minimum wage and the federal ban on whites-only lunch counters, among other things, are unconstitutional.

Indeed, even federal highways opponent Barton is no small figure in conservative politics; Barton is one of six “experts” tasked with rewriting Texas’ public school textbooks to teach a right-wing alternative history to Texan children. Apparently, Barton and his fellow tenthers also want to rewrite the Constitution.

O’Reilly Promotes Fringe Constitutional Attack on Health Care: An Individual Mandate Is Unconstitutional »

While progressives fight to fix a broken health system that leaves millions of Americans without access to lifesaving care, conservatives are increasingly offering fringe constitutional theories to lock the status quo in place forever. Last night, Bill O’Reilly joined their number, claiming that an individual mandate requiring almost all Americans to be insured is unconstitutional because “the federal government cannot force you to do or buy anything.”  Watch it:

Fox anchor Megyn Kelly tells O’Reilly in the same segment that she is not sure whether an individual mandate is constitutional because it would “require days and weeks of research” for her to determine whether it is.

Kelly could spend days and weeks researching this question, but the Wonk Room already addressed it on Monday.  As the Supreme Court held in Gonzales v. Raich, the Constitution empowers Congress to enact broad regulatory schemes that “substantially affect interstate commerce.”  This power includes authority to enact broad reforms that concern “economic activity,” and an individual mandate unquestionably falls within the scope of this power:

The [individual mandate] would require most uninsured Americans to buy a product — health insurance coverage — which pools thousands of people’s premiums together and pays those people’s medical costs as they become ill. … [T]he individual mandate would lower premiums nationwide by requiring more healthy individuals to buy into the system; while reducing the risk of catastrophic financial loss should a person who was previously uninsured experience catastrophic illness. It is difficult to imagine a law which has a more obvious economic impact than a requirement that all Americans be insured.

So O’Reilly’s constitutional attack on health reform is entirely without merit. Sadly, however, it is also one of the least virulent theories being advanced by right-wing constitutional theorists. A number of elected conservatives, including Rep. Michele Bachmann (R-MN), Gov. Rick Perry (R-TX) and Sen. Jim DeMint (R-SC) are proud members of the “tenther” movement — a movement that believes that landmark progressive reforms such as Medicare, Medicaid, Social Security, federal education funding, the VA health system, the G.I. Bill, the federal minimum wage, and the federal ban on whites-only lunch counters are all unconstitutional.  Since they could never pass such a radical agenda through Congress, conservatives now want to rewrite the Constitution to suit their ends.

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Gonzales Offers Tortured Defense Of His Pro-Torture Past

In an interview with Law.com, disgraced former Attorney General Alberto Gonzales attempts to walk back pro-torture arguments he made to President Bush, claiming that he was only criticizing isolated provisions such as “a requirement that you provide athletic uniforms, commissary privileges, scientific instruments, [and] a monthly allowance” to detainees. According to Gonzales, “I didn’t mean to say that the provisions of the Geneva Conventions requiring basic humane treatment were outdated. No, I didn’t say that.”

Gonzales’ attempt to whitewash his previous statement, however, does not jibe with the facts. Here’s what Gonzales actually wrote in a 2002 memo to President Bush:

The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians, and the need to try terrorists for war crimes such as wantonly killing civilians. In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges, scrip (i.e., advances of monthly pay), athletic uniforms, and scientific instruments.

So while Gonzales did indeed criticize provisions which supposedly require the United States to provide detainees with athletic uniforms and scientific instruments, he also clearly rejects the Geneva Conventions’ limits on torture and other abusive interrogation techniques as “obsolete.”

Moreover even if Gonzales’ defense of his prior views could be taken at face value, they, at best, reveal him to be a completely incompetent attorney. Many of the provisions Gonzales labels as “quaint” simply do not exist. For example, nothing in the Geneva Convention relative to the Treatment of Prisoners of War requires a detaining power to provide detainees with “athletic uniforms” or “scientific instruments.” The only provisions which even vaguely resemble such a requirement are Article 27, which mandates that detainees must be given appropriate “[c]lothing, underwear and footwear,” and Article 72, which provides that detention guards cannot seize mail sent to detainees which contains harmless items such as “scientific instruments” and “sports outfits.”

Similarly, while the Geneva Convention does include provisions requiring that detainees be given access to a kind of store, such provisions exist solely to ensure that the detainees most basic needs are met. Under the heading of “QUARTERS FOOD AND CLOTHING OF PRISONERS OF WAR,” Article 28 provides that a “canteen” must be set up in prisoner of war camps which provides necessities such as “foodstuffs” and “soap” (possibly because many prisoners of war are addicted to cigarettes when they are captured, the convention also provides for access to tobacco). To enable detainees to obtain food and soap from the canteen, Article 60 provides for prisoners to receive a modest “advance of pay.”

In other words, the “commissary” and “scrip” provided for under the Convention are really just a way of ensuring that the detainees basic needs are provided for. It is a mechanism to feed and clean detainees, not a requirement that detainee camps house their very own Wal-Mart.

Despite his attempts to whitewash the past, the meaning of Gonzales’ 2002 memo is clear. Gonzales believed that Geneva’s ban on detainee mistreatment is “render[ed] obsolete” by modern day terrorism; and he affirmatively misrepesented the contents of the Geneva Convention in a memo to the President of the United States.

GOP Senators Call For New 75-80 Vote Superfilibuster Standard On Health Reform

Speaking on Fox News last night, Sen. Orrin Hatch (R-UT) claimed that health care reform should not happen because it doesn’t enjoy “bipartisan” support, adding that a bill cannot be bipartisan unless it garners “somewhere between 75 and 80 votes.”  Watch it:

Hatch is hardly the only conservative senator to float a 75-80 vote supermajority requirement for health reform.  Sen. Chuck Grassley (R-IA), who is currently blocking attempts to fix the health care system, told the Washington Post that “[w]e ought to be focusing on getting 80 votes.” Sen. Mike Enzi (R-WY) demanded “a bill that 75 or 80 senators can support.”

Hatch, Grassley, and Enzi all sang a very different tune when they were in the majority, however:

– Tax Cuts For The Rich: In May 2001, the Senate passed President Bush’s budget-breaking $1.35 trillion tax cuts with only 58 votes.  Nevertheless, Hatch announced that he was “extremely proud of this bipartisan bill.” Grassley praised the tax cuts as “built upon bipartisanship,” and Enzi praised the Senate for passing the bill in a “bipartisan fashion.”

– Subsidies For Drug Companies: In November 2003, the Senate passed a prescription drug plan for seniors that was strongly backed by lobbyists for the pharmaceutical industry with only 54 votes.  Nevertheless, Grassley released a statement praising himself as the “lead Senate architect of the bipartisan legislation” creating this plan.

– Nuclear Option: Four years ago, when Senate Democrats filibustered seven of President Bush’s 205 nominees to the federal bench, conservatives deemed the filibuster unconstitutional and invented a tactic known as the “nuclear option” to ram the blocked nominees through the Senate.  Hatch and Grassley were on the vanguard of the movement to block any attempt to require judges to be confirmed by a supermajority.  Hatch described the filibuster as “unconstitutional,” and Grassley described judicial filibusters as “an abuse of our function under the Constitution.”

Now that conservatives make up only a tiny minority of the Senate, however, they’ve decided that even the filibuster’s 60-vote threshold isn’t a strong enough barrier to block much-needed reform. Instead, Hatch, Grassley, and Enzi now want to impose a 75-80 vote superfilibuster standard that will effectively kill any health care plan they don’t personally approve of.

Bachmann: Health Care Reform Is Unconstitutional

Speaking on Fox News last night, right-wing Congresswoman Michele Bachmann (R-MN) claimed that health care reform is unconstitutional:

It is not within our power as members of Congress, it’s not within the enumerated powers of the Constitution, for us to design and create a national takeover of health care. Nor is it within our ability to be able to delegate that responsibility to the executive.

Watch it:

Bachmann, however, is wrong about both the contents of the health care plan and the requirements of the Constitution. There is nothing in any of the health care bills under consideration which resembles a “national takeover of health care.” Conservatives like to use this language when referring to the public health option. Like other insurers, the public option would collect premiums from people who choose to buy into it, and then spend those premiums to insure these participants.

Had Bachmann bothered to read Article I of the Constitution before going on Fox, she would have learned that Congress has the power to “lay and collect taxes, duties, imposts and excises” and to “provide for….the general welfare of the United States.”  Rather than itemizing specific subject matters, such as health care, which Congress is allowed to spend money on, the framers chose instead to give Congress a broad mandate to spend money in ways that promote the “general welfare.”

It’s unclear what the basis is for Bachmann’s claim that the public option is an unconstitutional delegation of power to the Executive. There is a 74 year-old decision — decided by the same right-wing Supreme Court which believed most of the New Deal to be unconstitutional — which holds that Congress could not simply grant President Roosevelt nearly limitless authority to do whatever he wanted in order to prevent “unfair competition.” But no one has proposed giving President Obama similarly unchecked authority over health care. Rather, pages 116-128 of the House bill that Bachmann will vote on provide extremely detailed instructions explaining how the Executive Branch must manage a public health plan.

It’s important to note just how radical Bachmann’s theory of the Constitution is. If Congress does not have the power to create a modest public option which competes with private health plans in the marketplace, then it certainly does not have the authority to create Medicare. Similarly, Congress’ power to spend money to benefit the general welfare is the basis for Social Security, federal education funding, Medicaid, and veterans benefits such as the VA health system and the GI Bill. All of these programs would cease to exist in Michele Bachmann’s America.

Inhofe: Sotomayor Is a ‘Racist,’ But Strom Thurmond Is A ‘Great American’

Echoing statements by nativist former Rep. Tom Tancredo (R-CO) and former KKK Imperial Wizard David Duke, Sen. James Inhofe (R-OK) called Supreme Court nominee Judge Sonia Sotomayor a “racist” last night on the Senate floor.  Watch it:

Interestingly, while Inhofe is convinced that the first Latina nominee to the Supreme Court is consumed by racial animus, he had very different things to say about a fellow Southern white conservative.  After former Sen. Trent Lott (R-MS) claimed that America would have avoided “all these problems” if it had put a segregationist in the White House, Inhofe quickly came to Lott’s defense:

“In an effort to honor the life and service of Strom Thurmond, Senator Lott made some comments that he probably wishes he had phrased differently,” Inhofe said. “I do not believe Senator Lott meant to be malicious or racist with the comments he made. I believe he was merely honoring a great American on his 100th birthday, but I believe he is right to apologize for the words he used. Racism of any type must not be tolerated.

“Many have been quick to criticize Lott, but few have been quick to accept his apology. I do not believe he harbors racist sentiments in his heart. He has apologized and appropriately clarified the meaning of his statements. I believe we should accept his apology and move forward.”

In Jim Inhofe’s America, Sonia Sotomayor is a dangerous bigot who must be stopped, but Strom Thurmond is a “great American.”

McCain Opposes Activist Judges, Unless They’re Conservative

One day after he warned that Republicans have a “very, very deep hole that we’ve got to come out of” with Latino voters, Sen. John McCain (R-AZ) announced that he would oppose the first Latina nominated to the nation’s highest court. Moreover, in his statement opposing Judge Sonia Sotomayor, McCain misrepresents his own record on judges:

Again and again, Judge Sotomayor seeks to amend the law to fit the circumstances of the case, thereby substituting herself in the role of a legislator. … To protect the equal, but separate roles of all three branches of government, I cannot support activist judges that seek to legislate from the bench. I have not supported such nominees in the past, and I cannot support such a nominee to the highest court in the land.

Despite his claim that he has never supported a judge who “seeks to amend the law to fit the circumstances of the case,” McCain voted in favor of Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito; and he described both Roberts and Alito as “model judges” during the 2008 campaign.  A few of these three justices’ greatest hits include:

• Repealing the Twentieth Century: In three opinions that read like a tea-bagger’s wet dream, Justice Thomas would have restricted Congress’ power to enact economic regulation to a point unheard of since the Great Depression.  A short list of laws that would simply cease to exist in Clarence Thomas’s America includes “the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the sick leave portions of the Family and Medical Leave, the Freedom of Access to Clinics Act, as well as minimum wage and maximum hour laws.”
• Selling Justice To The Highest Bidder: Roberts, Thomas and Alito all joined dissents arguing that a West Virginia coal magnate could literally buy a judge for $3 million to overturn a verdict against his company.
• Corporate Immunity From the Law: Joined by Roberts, Alito wrote a dissent arguing that drug companies have almost-total immunity from the law when one of their dangerous products caused a former professional musician to lose her arm and her ability to play music.  Roberts, Thomas and Alito also joined a majority opinion giving sweeping immunity to the makers of dangerous medical devices.
• Massive Resistance: All three justices joined a radical opinion which not only held that it is unconstitutional for school boards to desegregate public schools, but which audaciously cited Brown v. Board of Education for this proposition.
• This Election Brought to You By Wal-Mart: Perhaps most ironic of all, all three of McCain’s justices are poised to declare McCain’s signature legislative accomplishment, campaign finance reform, unconstitutional.

As a Yale Law School study published before Roberts and Alito joined the Supreme Court determined, Justice Thomas is the one justice who is most likely to vote to invalidate an Act of Congress — doing so a massive 65.63% of the time. The Court’s two Clinton appointees, Justices Ginsburg and Breyer, are the least likely to second-guess Congress.  So McCain has no problem with judges who “substitute [them]self in the role of a legislator;” he’s just upset that Sotomayor won’t push the same right-wing agenda as his favorite justices.

Tancredo: Sotomayor Pals Around With Mexican Separatists

Doubling-down on his previous claim that Justice-to-be Sonia Sotomayor is a member of the “Latino KKK,” nativist former Congressman and presidential candidate Tom Tancredo (R-CO) published a column yesterday suggesting that she supports an imaginary movement of Mexican-Americans planning to wage civil war against the United States:

The last thing the Democrats want is for the American people to know about the National Council of La Raza, their radical agenda and Sotomayor’s association with the group.

Sotomayor is a member of La Raza and her comments about “Wise Latinas” being superior to white men appeared in the La Raza Law Journal. The National Council of La Raza bills itself as “the largest national Hispanic civil rights and advocacy organization in the United States” who works through “its network of nearly 300 affiliated community-based organizations.”

Among these affiliates are several chapters of the Movimiento Estudiantil Chicano de Aztlán (Chicano Student Movement of Aztlán) who La Raza helps fund. Aztlán is what radical “Mechistas”—as they refer to themselves on La Raza’s website—call the American Southwest, which they claim still belongs to Mexico. Their slogan is “Por La Raza todo, Fuera de La Raza nada” meaning “For the Race everything, outside the Race nothing.” One chapter says on La Raza’s site that their mission is “empowerment of our gente and the liberation of Aztlán.”

For starters, Tancredo offers no explanation for his belief that Sotomayor, who is Puerto Rican, would somehow find common cause with Mexican-American separatists.  Mr. Tancredo may be unaware of this fact, but Puerto Rico is not part of Mexico.

Moreover, Tancredo’s claim that America is threatened by Mexican-Americans eager to start a second civil war is simply absurd hate speech.  According to the Southern Poverty Law Center, the Aztlán libel is based on a radical document published in 1969, which called on Mexican-Americans to “reclaim the land of their birth” and unite to fight “oppression, exploitation and racism.”  Although this document is nothing more than “a relic of the counterculture of the 1960s,”  nativist hate groups have seized upon it as a supposed “founding document of a bona fide conspiracy endorsed and backed by Mexico and, in some versions, by most Mexican Americans.”

For Tancredo, however, no theory is too bizarre, so long as it bolsters his deep-seated hatred of people who don’t look like him.