ThinkProgress » Ian Millhiser

After Touting His Work To Help Texas Kill A Mexican, Senate Candidate Ted Cruz Attacks His Opponent For Racism

Ian Millhiser — Tue, 29 May 2012 17:10:07 +0000

Today, Texas Republicans go to the polls to decide whether Lt. Gov. David Dewhurst, tenther Ted Cruz, or one of a handful of dark horse candidates will emerge as their nominee for the U.S. Senate seat being vacated by retiring Sen. Kay Bailey Hutchison. Dewhurst, who needs to earn at least 50 percent of the vote today to prevent a runoff, decided to close his primary campaign with an ad suggesting that his Cuban-American primary opponent supports “amnesty” for “illegal immigrants”. The ad cites Cruz’s board membership on two conservative Hispanic groups as evidence for this claim.

Listen:

Cruz responded to Dewhurst’s ad by immediately accusing his opponent of racism — claiming that it’s real purpose is to communicate to Texas Republicans that “anyone with a ‘Z’ in their name is unelectable.” Cruz, however, would have much more credibility as a crusader against anti-Hispanic bigotry if he had not launched his own television campaign with a racially charged ad touting his efforts to ensure that Texas could execute an “illegal alien”:

When the UN and World Court overruled a Texas jury’s verdict to execute an illegal alien for raping and murdering two teenage girls, Ted Cruz fought all the way to the Supreme Court, and he delivered. . . . Politicians cut deals, principled conservatives deliver.

Watch it:

As ThinkProgress previously explained, the case Cruz flags here had nothing whatsoever to do with whether Texas is allowed to kill Mexican nationals who commit capital offenses. Rather, the case presented the very narrow question of whether Texas must comply with America’s then-existing treaty obligation to inform foreign nationals who are arrested in the United States of their right “to request assistance from the consul of his own state.” What Cruz won in the Supreme Court is Texas’ right to ignore an international legal obligation that even North Korea has honored.

Nevertheless, Cruz chose to open his campaign with an ad suggesting that he was all that stood between poor, vulnerable Texas Republican families and a marauding Mexican “illegal alien.” He hardly has the moral high ground to protest against someone else’s attempts to inject race into this campaign.

Ohio Set To Execute Severely Mentally Ill Inmate Next Week

Ian Millhiser — Tue, 29 May 2012 13:00:32 +0000

Abdul Awkal with his attorney David Singleton

On June 6, Ohio is scheduled to execute Abdul Awkal for the murder of his estranged wife and brother-in-law unless Gov. John Kasich (R-OH) grants a pending clemency petition, or a court steps in with a last minute order. Here are the facts about the mental health of the man set to be executed next Wednesday:

Survived a Civil War: In 1975, when Abdul was sixteen years old, a civil war erupted in his home country of Lebanon. Abdul lived through this war for eight years before he was able to escape to Michigan to live with family members. Although Abdul never sought treatment during his first months in the United States and thus was not diagnosed with a mental illness until sometime later, he said that he spent his first four months in America sitting on his brother’s couch — behavior an Ohio clemency board said was “as if he was suffering from Post Traumatic Stress Disorder.”
History of Mental Breakdowns: Abdul eventually found work as a gas station attendant. About a year after he arrived in the United States, however, he was wrongfully accused of stealing from his employer. According to the Ohio Supreme Court, he then suffered a mental breakdown. Abdul “became hysterical, cursing and breaking things, vomited and then collapsed.” He was taken to a Detroit hospital in a straitjacket and later released with instructions (that he disregarded) to seek psychiatric treatment. Some time later, Abdul suffered at least one more mental breakdown as his marriage to the woman he eventually killed became increasingly dysfunctional. A mental hospital again told him to seek psychiatric care, but he did not follow up because he says he could not afford treatment.

Suicidal Depression: In November of 1991, about two months before he would kill his estranged wife and brother-in-law, Abdul finally did attend four counseling sessions because he was depressed and had thoughts of suicide.
Hallucinations: On January 7, 1992, Abdul shot his wife and brother-in-law during a meeting related to Abdul’s pending divorce. While awaiting trial in an Ohio jail, he began having hallucinations. Abdul says he saw his wife speak to him and tell him to “join her.”
Incompetent to Stand Trial: Abdul’s trial was delayed after a court found him mentally incompetent to assist in his defense. During the period between his arrest and his trial, county psychiatrists experimented with various anti-depressant, anti-psychotic and anti-anxiety drugs in an attempt to control his hallucinations and enable him to participate in the trial, and a judge eventually deemed him competent to state trial in September of 1992. During the pre-trial period, the prosecution also offered him a plea bargain, which he rejected, that would have taken the death penalty off the table. It’s not clear what Abdul’s mental state was when he rejected this deal.
Second Finding of Mental Incompetency: In 2004, Abdul wrote a federal judge asking that his appeals be terminated and that he be executed swiftly. The judge responded by ordering a psychiatric evaluation. Twelve years after his arrest, Abdul was diagnosed with Schizoaffective Disorder, depressed type and determined to be mentally incompetent to waive his appeals.
Letters to the CIA: In 2001, Abdul started writing letters to then-CIA Directors George Tenet and Porter Goss, along with former CBS new anchor Dan Rather and, eventually, President Obama offering advice on how to fight terrorism and the wars in Iraq and Afghanistan. In one letter to Obama, for example, Abdul advises that rather than dismantling or safely detonating the Taliban’s explosive devices, U.S. servicemembers in Afghanistan should “replace the electronic receiver inside the IEDs with ours and keep them buried.” Abdul also told a clemency board that he advises the CIA on “Islamic religion and culture” and that he is upset that the CIA did not listen to him after he warned them about 9/11. At other points, he’s claimed he is being executed because the “CIA wanted him dead.”

As Supreme Court Justice Potter Stewart recognized almost four decades ago, the “most irrevocable of sanctions should be reserved for a small number of extreme cases.” This is why the Constitution forbids executions of juvenile offenders or the mentally retarded. And it is why the death penalty is reserved to only a handful of the most severe crimes. Indeed, American juries consider death such an extreme sanction that only 2 percent of convicted murderers are sentenced to die.

There’s no question that Abdul committed a terrible crime more than twenty years ago, and he has spent every subsequent minute of his life in state custody because of his actions. That will not change if Gov. Kasich grants Abdul clemency, or if the Supreme Court recognizes that people with severe mental illnesses do not belong on death row.

Justiceline: May 29, 2012

Ian Millhiser — Tue, 29 May 2012 11:49:55 +0000

Welcome to Justiceline, ThinkProgress Justice’s morning round-up of the latest legal news and developments. Remember to follow us on Twitter at @TPJustice

The Ninth Circuit handed a slight setback to the Obama Administration’s arguments against the unconstitutional Defense of Marriage Act when it ordered last week that a challenge to DOMA must first be heard by a three-judge panel before it might be heard by a larger panel of the court. Three-judge panels lack the authority to overrule a twenty year-old anti-gay precedent that makes the attack on DOMA more difficult.
Several Supreme Court justices have made early July plans, suggesting that the health care case will be decided by late June.
Meanwhile, then-Senator Obama’s 2005 speech explaining why he would not vote to confirm Chief Justice Roberts looks pretty prescient right now.
Anti-gay Virginia lawmaker Bob Marshall (R), who was last seen blocking a judicial appointment because the judge-to-be is gay, claims that being gay “cuts your life by about 20 years.”
The law firm of Dewey & LeBoeuf becomes the largest law firm ever to declare bankruptcy.
And, finally, the award for the most politically unpalatable headline in a column that actually makes some interesting points goes to Sanford Levinson with “Our Imbecilic Constitution.”

Texas Judge: Vote For Me Because Rush Limbaugh Loves My Decisions Favoring Energy Corporations

Ian Millhiser — Fri, 25 May 2012 17:30:08 +0000

Judge Trey Loftin

Texas trial Judge Trey Loftin is running for reelection. He’s also currently hearing a case in which he’s handed down some rulings favoring a drilling company. And he wants you to know that his decisions favoring this corporation are why you should vote for him:

A Texas state judge is promoting his recent decisions favoring a gas driller in its dispute with a local landowner as part of his election campaign, a move some legal scholars say may violate state judicial ethics rules.

With aspects of the case still pending in his courtroom, Judge Trey Loftin sent fliers to voters saying he forced the U.S. Environmental Protection Agency to back down.

Loftin, who is campaigning to keep his state judgeship in a county west of Dallas, also sent out materials with the image of talk show host Rush Limbaugh, who credited the judge’s ruling in favor of driller Range Resources Corp. (RRC) (RRC), based in Fort Worth, Texas, for getting the EPA to reverse course.

The clear implication of his campaign fliers, of course, is that a vote for Judge Loftin is a vote for the very same kind of industry-friendly, Limbaugh-approved decisions he’s handed down in the past. Rather than, say, future decisions that side with big business only when the law favors big business and with local landowners when the law is on their side.

Worse, by making a case that is still pending in his courtroom a centerpiece of his campaign, Loftin might as well advertise that voters (and industry donors) can influence the outcome of that very case simply by supporting his campaign. This kind of campaign would be inappropriate even if Loftin were simply suggesting that he would rule against a frivolous lawsuit claiming that every Texan has a fundamental right to an unlimited supply of purple plastic plates, but it is all the more troubling when he implies that a wealthy and powerful industry group could keep a friendly judge on the bench by throwing their support behind him.

How A Top GOP Economist Convinced A Federal Court To Strike Down DOMA

Ian Millhiser — Fri, 25 May 2012 14:30:54 +0000

Douglas Holtz-Eakin

Douglas Holtz-Eakin is one of the Republican Party’s top economic pundits. He served as a top advisor to Sen. John McCain’s (R-AZ) 2008 presidential campaign. He organized an amicus brief which the Eleventh Circuit relied on heavily in its decision striking down the Affordable Care Act, despite the fact that his brief is riddled with factual errors and miscalculations. And he is one of the nation’s top evangelists for the idea that we can solve our economic woes simply by saving rich people from the crushing burden of having to pay their fair share of taxes.

Before Holtz-Eakin began his second career as a salesman for Republican economic policy, however, he actually was a serious economist. In 2004, Holtz-Eakin served as Director of the Congressional Budget Office, and he was asked to analyse the impact on the federal budget of eliminating the unconstitutional Defense of Marriage Act (DOMA) and extending marriage equality throughout the nation. According to the top Republican economist, opposition to marriage equality cannot be squared with the GOP’s supposed devotion to deficit reduction, as marriage equality slightly reduces the deficit:

The potential effects on the federal budget of recognizing same-sex marriages are numerous. Marriage can affect a person’s eligibility for federal benefits such as Social Security. Married couples may incur higher or lower federal tax liabilities than they would as single individuals. In all, the General Accounting Office has counted 1,138 statutory provisions—ranging from the obvious cases just mentioned to the obscure (landowners’ eligibility to negotiate a surface-mine lease with the Secretary of Labor)—in which marital status is a factor in determining or receiving “benefits, rights, and privileges.” In some cases, recognizing same-sex marriages would increase outlays and revenues; in other cases, it would have the opposite effect. The Congressional Budget Office (CBO) estimates that on net, those impacts would improve the budget’s bottom line to a small extent: by less than $1 billion in each of the next 10 years (CBO’s usual estimating period). That result assumes that same-sex marriages are legalized in all 50 states and recognized by the federal government.

According to last night’s federal court decision holding DOMA unconstitutional, Holtz-Eakin’s economic analysis is not simply an interesting historic artifact — it’s also a body blow to the forces trying to protect anti-gay discrimination from the Constitution. In defending the law, anti-gay Members of Congress proposed four reasons why they believed excluding gay couples from their constitutional right to marry is somehow justified, among them a claim that DOMA “is justified as an enactment designed to conserve scarce government resources.” Holtz-Eakin’s analysis refutes this claim, and the district court relied upon it in explaining why DOMA must go down.

In many ways, the resurrection of Holtz-Eakin’s days as a non-partisan economist is a metaphor for why conservative efforts to cling to anti-gay discrimination are doomed to failure. The most intriguing line in yesterday’s opinion is when it characterizes DOMA as an attempt to “establish[] an across-the-board federal definition of marriage limiting it to heterosexual couples, and preempting any opportunity to test the impact of state laws evolving to recognize same-sex marriage.” When marriage equality was nothing more than an idea, conservatives could scare the nation with warnings that gay couples would recruit your children, raise your taxes and destroy your marriage. Now it is a reality in many states — even if the federal government still needs to extend benefits to these couples — and the parade of horribles that anti-gay groups predicted never made it out the gate.

Holtz-Eakin’s memo demonstrates, however, that anti-gay discrimination was doomed even before America got its first taste of marriage equality. Reality leaks through, even if Congress does everything in its power to keep it away.

Justiceline: May 25, 2012

Ian Millhiser — Fri, 25 May 2012 11:45:21 +0000

Welcome to Justiceline, ThinkProgress Justice’s morning round-up of the latest legal news and developments. Remember to follow us on Twitter at @TPJustice

A DC elementary school declared a “Trayvon Martin Day” to teach its students and community about social justice, race relations and to avoid violence.
The New Jersey legislative black caucus came out against state supreme court nominee Bruce Harris, who is African-American, citing his lack of qualifications: “The nomination of Mr. Harris sends the wrong message — that we can only achieve diversity on the Supreme Court through lowering the bar for qualifications,” said Sen. Ron Rice. “In a state with many distinguished African-American lawyers and judges, nothing could be further from the truth.”
The Second Circuit held that records relating the the waterboarding of a Guantanamo Bay detainee can remain sealed.
The Louisiana Senate approved a state constitutional amendment that will make it nearly impossible to pass gun laws in that state if it is fully ratified.
The Virginia Supreme Court exonerated a man convicted of a 1978 rape, due to DNA evidence.
And, finally, after Rick Perry’s “oops” of a presidential campaign, his endorsement is now a liability. In Texas.

Even Bush Attorney General Alberto Gonzales Won’t Say The Affordable Care Act Is Unconstitutional

Ian Millhiser — Thu, 24 May 2012 20:15:17 +0000

Alberto Gonzales knows something about distorting the law. As George W. Bush’s White House Counsel, he called the Geneva Convention’s protections for wartime prisoners “quaint” and played a key role in authorizing the Bush Administration’s torture policies. As Attorney General, he presided over massive efforts to politicize the Justice Department’s hiring process, infamously delegating responsibility for much of DOJ’s hiring to former Republican National Committee opposition researcher Monica Goodling.

And yet, in an interview on Fox News this afternoon, even he couldn’t bring himself to claim that the Affordable Care Act is unconstitutional:

QUESTION: Some on the right are now saying they are concerned that Chief Justice Roberts is not going to go along with the way they want to see this case come out. They believe he might go with the liberals in a possible decision to uphold the law. As you say, having been the man to recommend him to the high Court to President Bush, what is your anecdotal thought on it?

GONZALES: This is a very hard decision. I almost laugh when I hear pundits say it’s going to go this way, it’s going to go that way, it’s a fairly easy decision. I think this is a very difficult decision.

Watch it:

For the record, it’s not just “pundits” who say that this is an easy case. It’s also iconic conservative judges. Judge Laurence Silberman, who received the Presidential Medal of Freedom from Gonzales’ former boss, upheld the law because the case against it “cannot find real support . . . in either the text of the Constitution or Supreme Court precedent.” Judge Jeffrey Sutton, a former law clerk to conservative Justice Antonin Scalia who spent much of his pre-judicial career looking for ways to undermine federal power, nonetheless wrote his own opinion rejecting a challenge to the Affordable Care Act. And Judge J. Harvie Wilkinson, one of the finalists for the Supreme Court seat President Bush eventually gave to Chief Justice Roberts, called the case against health reform “a prescription for economic chaos that the framers, in a simpler time, had the good sense to head off.”

So the Affordable Care Act lawsuit is not a hard case — it is one of the easiest cases the Supreme Court has heard in years. The fact that former Bush Administration official who devoted much of his career to placing politics ahead of the law isn’t willing to embrace the case against health reform only lends credence to that fact.

Oklahoma Lawmaker Loses Push To Allow Lawmakers To Carry A Gun Anywhere

Ian Millhiser — Thu, 24 May 2012 18:45:17 +0000

State Rep. John Bennett (R-OK) being photographed at a 'killing ground'

Oklahoma state Rep. John Bennett (R-OK) thinks a lot of people are out to get him, so he and his fellow lawmakers should be allowed the right to carry a deadly firearm. Anywhere. Including schools:

Oklahoma legislators need to have the ability to carry handguns to defend themselves from angry constituents and others who might carry out death threats and turn public meetings into killing fields, a House member said Tuesday.

“We don’t protect ourselves,” said Rep. John Bennett, R-Sallisaw.

“According to the Constitution, the Second Amendment, I can carry in this building, that building, anyplace I want to go except if I do now I’m going to get in trouble, probably get arrested.

“How many people in here go to public events and public meetings and speak out in public either at the libraries, football fields, schools and places like that?” he asked House members. “Some of you may carry there anyway even though you’re not supposed to. But you probably do it because those are killing grounds. We have provided killing grounds for the bad guys to come and get us.”

For the record, the Second Amendment does not allow Bennett to bring a gun wherever he wants. As Justice Scalia explained in District of Columbia v. Heller, nothing in that amendment prohibits laws “forbidding the carrying of firearms in sensitive places such as schools and government buildings.”

Bennett’s colleagues rejected his proposal by a 55-32 vote, with state Rep. Steve Martin (R-OK) criticizing Bennett’s attempt to “start us down the dangerous path of giving ourselves really unjustified privileges that the average citizen doesn’t have.”

Amazon.com Becomes The Eighteenth Group To Drop ALEC

Ian Millhiser — Thu, 24 May 2012 17:13:14 +0000

According to an email ThinkProgress received from the Center for Media and Democracy, one of the leaders of a progressive campaign to push corporations and other funders to break with the American Legislative Exchange Council, online retail giant Amazon.com just announced that it will part ways with ALEC. In the wake of this campaign, ALEC eliminated a task force that pushed voter suppression laws and the so-called “Stand Your Ground” laws that played a significant role in the aftermath of the Trayvon Martin shooting, but the conservative group remains committed to other priorities such as repealing minimum wage laws, eliminating capital gains and estate taxes, and blocking safeguards that protect children from eating rat poison.

Other groups that have dropped ALEC include: Coca-Cola, PepsiCo, Kraft, Wendy’s, Mars, Inc., Arizona Public Service, the National Board for Professional Teaching Standards Scantron, The National Association of Charter School Authorizers, Kaplan, Procter & Gamble, Yum! Brands, five Pennsylvania legislators, Blue Cross/Blue Shield, Reed Elsevier, American Traffic Solutions, Intuit, and the Bill & Melinda Gates Foundation.

Openly Gay Nominee To New Jersey Supreme Court Unlikely To Be Confirmed

Ian Millhiser — Thu, 24 May 2012 14:30:37 +0000

Last January, New Jersey Gov. Chris Christie (R) nominated openly gay attorney Bruce Harris to a seat on that state’s supreme court. According to the Star-Ledger, however, Harris is not expected to clear the state’s senate judiciary committee, which will hold a hearing on him today, due to both his lack of litigation experience and concerns over his overwillingness to recuse himself from cases:

Harris, a graduate of Yale Law School, is a transactional attorney at the international law firm Greenberg Traurig. . . . The sources, who requested anonymity because they were not authorized to discuss the matter, said Harris’ lack of courtroom experience was indeed a sticking point for committee’s eight Democrats. . . .

State Sen. Raymond Lesniak (D-Union) said he remained opposed to the nomination because Harris has said that if approved, he would recuse himself from cases involving gay rights.

Christie has said Harris planned to recuse himself because in the past he had advocated for gay rights.

But Lesniak and other critics said a blanket recusal was unnecessary, and that most likely was a concession to Christie, who opposes same-sex marriage. A lawsuit brought by seven gay couples seeking the right to marry is pending in a lower court and is expected to make its way to the Supreme Court in a couple years.

Harris’ lack of experience is a legitimate concern. While transactional work can certainly be very challenging, it bears little resemblance to litigation, so it’s not clear how Harris is prepared to decide some of the most important cases that arise in his state.

His promise to recuse from gay rights cases, however, is far more troubling. An openly gay judge is no more required to recuse himself from gay rights cases than Clarence Thomas is required to recuse himself from race cases because he is black or Ruth Bader Ginsburg is required to recuse herself from gender discrimination cases because she is a woman. If Harris becomes a judge on the back of a promise to remove himself from gay issues because he is gay, he will set a dangerous precedent that anti-gay groups will cite every time another LGBT judicial nominee is named. Gay judges are not second class judges, and it is a grave mistake for them to behave like they are.

Arkansas GOP Nominates House Candidate Who Called For Jailing NY Times Journalists

Ian Millhiser — Thu, 24 May 2012 13:30:07 +0000

On Tuesday, the Arkansas Republican Party nominated Tom Cotton as their candidate to replace retiring Blue Dog Mike Ross. Cotton became a minor celebrity in the right-wing blogosphere after he penned a letter in 2006 calling for two Pulitzer Prize winning reporters and the New York Times‘ executive editor to be thrown “behind bars” for publishing a story about a Treasury Department program to disrupt terrorist organization’s finances. Since President Obama took office, Republicans have taken to campaigning on outlandish claims that they are the sole protectors of our Constitution. Before Cotton takes up this strategy, however, he might want to familiarize himself with the following words: “Congress shall make no law . . . abridging the freedom of speech, or of the press.” [HT: Adam Serwer]

Justiceline: May 24, 2012

Ian Millhiser — Thu, 24 May 2012 12:02:25 +0000

Welcome to Justiceline, ThinkProgress Justice’s morning round-up of the latest legal news and developments. Remember to follow us on Twitter at @TPJustice

Senate Majority Leader Harry Reid (D-NV) will begin the steps today to break a Senate Republican filibuster of the Paycheck Fairness Act, which provides additional protections to ensure that women receive the same pay for the same work as their male colleagues.
North Carolina’s anti-gay Amendment One is now officially part of that state’s constitution.
A Missouri judge held that St. Louis’ practice of catching traffic violators with red light cameras and then mailing them tickets with instructions that did not accurately inform them of their legal rights violates the Constitution.
Partisan gerrymandering of state legislative seats will disproportionately impact women lawmakers this election cycle.
Jonathan Bernstein makes the case that Republican Senate candidates are backing away from anti-gay rhetoric — except for former Sen. George Allen (R-VA), that is.
Ohio’s Supreme Court unanimously upheld a statewide ban on smoking in most public indoor places.
A federal court in DC ordered the Defense Department to turn over three videos of Guantanamo Bay detainees being forced out of their cells.

EXCLUSIVE: Florida Congressman Demands Gov. Rick Scott ‘Immediately Suspend’ Voter Purge

Judd Legum — Wed, 23 May 2012 22:00:10 +0000

Florida Congressman Ted Deutch (D) told ThinkProgress today that Gov. Rick Scott was engaging in a “blatant attempt to supress voter turnout.” Scott is currently involved in a massive effort to purge up to 180,000 from the voting rolls. The list, purportedly of non-citizens, has proven unreliable. Earlier this week, Seminole County Supervisor of Elections Mike Ertel, a Republican, posted a picture on Twitter of a voter on the list falsely identified as ineligible, with his passport.

Congressman Deutch said that his office has heard from several constituents who have recieved a voting ineligibility letter in error. In light of these errors, Deutch will soon send a letter to Scott demanding the purge be immediatly suspended. An excerpt:

It is out of grave concern that we write to ask for the immediate suspension of the Florida Division of Elections’ directive that county supervisors of elections purge up to 180,000 names from Florida’s voter rolls in advance of the November 2012 elections.

While we all agree that the right to vote should be reserved only to those who are eligible, any process that could strip Floridians of their voting rights should be conducted with the utmost caution and transparency, and certainly not within six months of a major federal election and within 90 days of the primary. Providing a list of names with questionable validity – created with absolutely no oversight – to county supervisors and asking that they purge their rolls will create chaotic results and further undermine Floridians’ confidence in the integrity of our elections. A rushed process will undermine both Florida and federal law requiring voter rolls to be maintained in a uniform and nondiscriminatory manner.

The letter was circulated to the entire Florida Congressional delegation and Deutch expects several of his colleagues to sign on. Deutch noted that while Florida has “no history of mass voter fraud” it does have a history of “mass voter disenfranchisement” that proceeded the presidential election in 2000.

In 1998, Florida Secretary of State Katherine Harris hired a private company to create a “scrub list” of duplicate registrations, deceased voters and felons prohibited from voting in Florida. The company’s list, however, was riddled with errors. One person flagged as a felon by the list was actually a Florida judge. A county elections supervisor discovered the list was unreliable when she received an erroneous letter informing her that she was a felon and could not vote. By one estimate, 7000 Florida voters were wrongfully removed from the voter rolls for the 2000 presidential election — 13 times George W. Bush’s margin of victory in that state after the Supreme Court halted the post-election recount.

Deutch said that, in this election, “Governor Scott wants to play the role of Katherine Harris.”

African-Americans made up 88 percent of the voters removed from the rolls in the purge that preceeded the 2000 election, even though they account for only about 11 percent of Florida voters. In Florida, 93 percent of black voters cast a ballot for Al Gore.

What You Need To Know About The Law Behind The Catholic Church’s Anti-Birth Control Lawsuit

Ian Millhiser — Wed, 23 May 2012 19:00:45 +0000

Shortly after the Obama Administration announced its new rules to help ensure all women have adequate access to birth control, conservative lawmakers denounced it as unconstitutional under the First Amendment guarantee of religious liberty. This argument is meritless. As conservative Justice Antonin Scalia explained in Employment Div. v. Smith, a law that applies evenly to the faithful and the non-faithful alike does not violate the First Amendment.

In light of this fact, the rules’ opponents have wisely pivoted to a 1993 law known as the Religious Freedom Restoration Act (RFRA) which imposes additional restrictions on the federal government above and beyond what’s actually required by the Constitution. Indeed, the several conservative Catholic groups challenging the birth control rules in court cite RFRA in their very first claim against the rules.

RFRA was enacted very much due to a backlash against Justice Scalia’s opinion in Smith. That case involved a relatively obscure Native American religion whose members wanted to ingest the illegal drug peyote during one of the faith’s sacred rituals — Scalia’s opinion said they were not exempt from this law because the ban on peyote applies evenly to all persons regardless of whether they believe the drug has a sacred purpose or not. RFRA’s supporters, including some very prominent progressives, feared that Scalia’s decision would fall heavily on minority religions because they lacked the political power to stand up for themselves in the legislature. Lawmakers who support a ban on sacramental wine, for example, would soon run afoul of their many (and often, powerful) Christian constituents. But lawmakers who want to ban drugs used in relatively uncommon faiths would experience no such backlash.

For this reason, the conservative Catholics’ suit is a bit unusual since they are not the kind of minority faith that many of RFRA’s supporters sought to protect. The Catholic bishops who are driving this effort are politically powerful, so powerful, in fact, that top political leaders like Speaker John Boehner (R-OH) have rallied to their cause. Nevertheless, there’s nothing in the language of RFRA itself which prevents powerful religious groups from invoking it. Under RFRA, the federal government cannot “substantially burden a person’s exercise of religion” unless the law that does so:

(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest

Even assuming that the birth control rules “substantially burden” conservative Catholics, however, there are strong arguments that the rules survive RFRA’s test. In Roberts v. United States Jaycees, the Supreme Court established the government has a “compelling interest in eradicating discrimination against its female citizens,” and extending access to birth control clearly advances this goal. As the California Supreme Court explained when it upheld a very similar birth control law in 2004, “women during their reproductive years spent as much as 68 percent more than men in out-of-pocket health care costs, due in part to the cost of prescription contraceptives and the various costs of unintended pregnancies.” Expanding access to contraception targets this problem directly.

The more difficult question is whether the Obama Administration’s rules use the “least restrictive means” of achieving its goal — meaning that there is no way to accomplish the same goal without placing the same burden on religious exercise. In the California suit, the plaintiffs claimed that California could have simply created an entitlement program that provides contraception, rather than enacting a law that led to religious employers paying health insurance premiums that covered some women’s birth control. The Obama Administration’s opponents make a similar argument now, that conservative Catholic employers object that a portion of their premium payments would go to contraception, while an entitlement program would not raise this problem.

This is only half true, however. While it is true that conservative Catholics would not have to pay premiums that cover birth control if the government created an entitlement program, conservative Catholics would still pay taxes that fund that entitlement program. It’s not at all clear why one places a different burden on the rules’ religious objectors than the other.

So there are strong arguments in favor of the birth control rules — strong enough, in fact, that one of the most Republican courts in the country upheld a very similar California law just eight years ago. Of course, that was before the Roberts Court indicated they might embrace an utterly meritless case against the Affordable Care Act, so there is always a risk that partisanship will trump law if this case reaches the Supreme Court. Assuming the justices are in the mood to follow the law, however, the administration has a strong argument to offer against the RFRA challenge.

Sen. Whitehouse Blames ‘Preposterous’ Citizens United Decision On Lack Of Justices Who Ever Ran For Election

Ian Millhiser — Wed, 23 May 2012 16:50:47 +0000

Justice Sandra Day O'Connor is the last former elected official to serve on the Supreme Court

WASHINGTON, DC — The conservative justices justified their decision in Citizens United that corporations and wealthy individuals can spend unlimited money to influence elections because they believe that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” They are part of a very small minority who believes this. Only 15 percent of the country believes that unlimited spending does not lead to corruption, less than the 19 percent who believe in “spells or witchcraft.”

In an exclusive interview with ThinkProgress yesterday, Sen. Sheldon Whitehouse (D-RI) argued that the five conservatives responsible for Citizens United would never have made such an error in judgment if they had actually had first-hand knowledge of how elections work:

Unfortunately you had the five right-wing judges, none of whom have ever run for any office ever and have zero political experience between the five of them, offering opinions about what money can do in elections . . . . So clearly the finding of fact in Citizens United that unlimited corporate spending cannot either increase the risk of corruption or increase the appearance to the public that there’s corruption is ludicrous. . . . .

The President asked me who I thought, you know, what were the characteristics of somebody that should be appointed to the Court, and I said I think it should be somebody who has some actual political experience out there so that they are not operating in this political arena with absolutely no knowledge. Even if they wanted to come to the result that Citizens United came to, I think those judges would have had a hard time getting there if they’d had actual practical political experience because they would have known what a preposterous finding they were making.

Watch it:

The current Supreme Court includes eight former U.S. Court of Appeals judges and one former law school dean. Four of the five current justices responsible for Citizens United served as political appointees in Republican administrations. The justices who decided Brown v. Board of Education, by contrast, included one former governor, three former U.S. senators, and one former state lawmaker.

The Supreme Court will have the opportunity to correct its error in Citizens United, however, in a pending case challenging Montana’s longstanding ban on corporate influence over elections. Sen. Whitehouse joined Sen. John McCain (R-AZ) in a brief urging the justices to “revisit Citizens United‘s finding that vast independent expenditures do not give rise to corruption or the appearance of corruption” if they agree to hear the Montana case.

Rep. Steve Rothman Introduces Bill To End Anti-Gay Jury Discrimination

Ian Millhiser — Wed, 23 May 2012 15:50:11 +0000

The Constitution’s guarantees that no one may be denied the “equal protection of the laws” prohibits attorneys from removing jurors from a jury because of their race or gender. The Supreme Court has not gotten around, however, to recognizing that this protection also extends to gay jurors. To cure this omission, Rep. Steve Rothman (D-NJ) introduced the Juror Non-Discrimination Act, which would “bar discrimination against jurors on the basis of sexual orientation or gender identity.”

Sen. Whitehouse: ‘Yep, I Do’ Think Filibuster Reform Is Going To Happen

Ian Millhiser — Wed, 23 May 2012 13:50:44 +0000

Sen. Sheldon Whitehouse (D-RI)

WASHINGTON, DC — Earlier this month, Senate Majority Leader Harry Reid (D-NV) admitted that a bloc of mostly junior senators who supported eliminating or significantly reforming the filibuster were “right” and “the rest of us were wrong,” when the Senate failed to pass filibuster reform last year. In an exclusive interview with ThinkProgress yesterday, Sen. Sheldon Whitehouse (D-RI) predicted that rules reform will happen in the wake of Reid’s admission:

QUESTION: Majority Leader Reid just came out in favor of filibuster reform after he had, um, not been so keen to it the last time we had an opportunity. I know that that’s an area where you’ve done a little bit of work. Do you think that [filibuster reform] is likely to happen when we get the window?

WHITEHOUSE: Yep, I do. . . . I think that the major targets will be the double filibuster, filibustering both the motion to proceed to the bill and then the bill itself. That would be one target. I think the other major target of filibuster reform will be changing the rules of the filibuster so that the filibustering minority actually has to spend time on the floor defending its filibuster, rather than, right now, it’s the majority trying to get to 60 that has to be ready to fend off quorum calls and have all the Senators ready — and only one senator needs to be around from the minority side to defend the filibuster.

Watch it:

The “window” my question refers to is a brief, constitutionally required period every two years shortly after newly-elected senators are sworn in. During this short window, the Senate can alter the filibuster rules or even eliminate the filibuster altogether with just 51 votes. Normally, 67 votes are required to change the Senate’s rules.

As ThinkProgress previously explained, Senate Democrats may not have a choice when the next window opens next January, assuming that Democrats maintain control of the Senate and the White House. Longtime Sen. Richard Lugar (R-IN) was recently defeated in the GOP Senate primary by a candidate who objected to Lugar’s votes for Supreme Court Justices Sotomayor and Kagan. In light of this precedent, it is likely that the few Senate Republicans who were unwilling to obstruct these two nominees will see the Tea Party in their rear view mirror during the next confirmation fight, and will fear being Lugared. If Senate Democrats do not take their next opportunity to pass filibuster reform, the consequence could be a complete inability to fill Supreme Court vacancies.

Justiceline: May 23, 2012

Ian Millhiser — Wed, 23 May 2012 11:45:24 +0000

Gay Judicial Candidate Tracy Thorne-Begland

Welcome to Justiceline, ThinkProgress Justice’s morning round-up of the latest legal news and developments. Remember to follow us on Twitter at @TPJustice

Tracy Thorne-Begland, the Richmond prosecutor who was denied a seat on Virginia’s lowest court because he is gay, could be temporarily appointed to the same seat anti-gay lawmakers denied him.
Meanwhile, a Virginia inspector general finds that the state is too slow to release behavioral health patients when they are ready for discharge, in possible violation of the Americans with Disabilities Act.
The Supreme Court will decide on Thursday whether to take up the case of a pregnant woman who was tasered three times by police after she was pulled over for speeding.
A North Carolina federal judge struck down that state’s plan to ensure that judicial candidates are not overwhelmed by campaign donations or outside money spent on their opponents.
Two senators are very upset that the Ninth Circuit will hold a conference in Hawai’i this year. Hawai’i is part of the Ninth Circuit.

House Oversight Chair Issa May Not Have The Votes To Move His Anti-Holder Witchhunt Out Of Committee

Ian Millhiser — Tue, 22 May 2012 18:30:13 +0000

Last month, House Oversight Committee Chair Darrell Issa (R-CA) leaked an effort to hold Attorney General Eric Holder in contempt of Congress to the media — Issa is upset that Holder’s followed a longstanding Department of Justice practice against endangering ongoing investigations by turning over documents concerning those investigations. Since then, Issa’s become more and more isolated. A broad coalition of senior law enforcement executives came out against his crusade against Holder earlier this month, and even the House Republican leadership has been reluctant to support Holder’s efforts.

Now, according to The Hill, Issa’s crusade appears to be collapsing even among his fellow Republican committee members:

Two of the committee’s 23 Republicans have declined to support the measure at this point, while six other GOP panel members did not respond to repeated requests for comment over the last two weeks.

When compared with the 15 Republicans on the committee who have actively been speaking in favor of the measure, the silence, lack of outspoken support and desire by these eight GOP caucus members to avoid the issue could be a problem for Issa. . . . With only 15 committee Republicans publicly supporting the resolution — and no Democrats — Issa falls short of the 21 votes he needs to pass it out of the 40-member panel to the House floor.

In 2010, when Issa was preparing to take the Oversight gavel, he spoke of his plans as if he were the Fifth Horseman of the Apocalypse. Issa promised “hundreds of hearings” intended to “measure failures” by the federal government under President Obama, and he highlighted this promise with a braggadocious Twitter avatar depicting himself as a stick-figure policeman sternly keeping watch over the Capitol.

Less than two years later, Issa primary accomplishments are an all-male panel on women’s health, a bizarre conspiracy theory about about a Rube Goldberg-like plan to undermine the Second Amendment, and, now, a witchhunt against the Attorney General that even his fellow Republican lawmakers seem reluctant to support.

Missouri Legislature Passes Bill Creating Special License Plate For NRA Members

Ian Millhiser — Tue, 22 May 2012 15:50:10 +0000

The Missouri legislature enacted a transportation bill late last week which “allows members of the National Rifle Association to obtain specialty license plates bearing their organization’s name under certain conditions”:

The bill now goes to Gov. Jay Nixon (D).