Justice Tom Parker (center) poses with the leaders of two hate groups

Alabama Supreme Court Justice Tom Parker, a disciple of disgraced former Alabama Chief Justice Roy Moore, released a campaign ad comparing the judge who recently struck down the unconstitutional Don’t Ask, Don’t Tell policy to Al-Qaeda:

Recently, U.S. District Judge Virginia Phillips ordered a worldwide injunction to overturn the Don’t Ask/Don’t Tell policy on homosexuals serving in the military.  With a stroke of a pen, this Clinton appointed judge—who got her law degree at Berkeley—unilaterally made the biggest single change in military policy in American history. . . . Most people believe that Al-Qaeda is one of America’s biggest security threats, I think it’s time to add liberal activist judges like Judge Phillips to that list.

Listen:

Parker’s hyperbolic claim about American history would come as a big surprise to the actual framers of the Constitution, who generally shared the view that the mere existance of a permanent standing army invites tyranny, but this kind of absurd and bigoted rhetoric is nothing new for Justice Parker. The picture above depicts Parker with two local hate group leaders.  One is Leonard Wilson, a segregationist and national board member of a group called the Council of Conservative Citizens that has described African-Americans as “a retrograde species of humanity.”  The other is Mike Whorton, Alabama state leader of the neo-Confederate League of the South.

(As the Wonk Room recently explained, Parker is not the only candidate with ties to the League.  Martha Dean, the GOP nominee for Connecticut Attorney General, is apparently taking cues from one of the League’s co-founders, right-wing pseudo-historian Tom Woods.)

Nor is Parker’s radicalism limited to hatred towards gay men, lesbians or other minority groups.  In a op-ed published during his tenure as a justice, Parker attacked his colleagues for “passively accommodat[ing] — rather than actively resist[ing] — the unconstitutional opinion of five liberal justices on the U.S. Supreme Court.”  The same op-ed elaborated that he objects to the U.S. Supreme Court because they look down on “pro-family policies” and “Southern heritage.”

In an unfortunate interview with Bloomberg’s Greg Stohr, Justice Stephen Breyer rejected the notion that the Roberts Court is unusually pro-corporate because business interest “have always done pretty well.”  Yet a new empirical study by the progressive Constitutional Accountability Center demonstrates that Breyer is mistaken.  The study compares the right-wing Chamber of Commerce’s win-rate since Justice Alito joined the Court in January of 2006 to their win-rate twenty-five years ago, and the results are clear and undeniable:

If anything, this chart understates just how successful the Chamber’s powerful corporate lobby has been in stacking the Court with right-wing justices.  The study also examines each individual justices’ votes, and finds that fully five of today’s justices — a majority of the Court’s members — are significantly more pro-corporate than the most pro-corporate member of the Court in the early 1980s (the study did not include the Court’s two newest members because of an insufficiently large data sample):

Also significant is the increasingly ideological nature of the Court’s votes on the Chamber’s cases:

The Burger Court, during the period of our study, was also dramatically less polarized by corporate cases than it is today. As noted above in our study of the Roberts Court, the average level of support for Chamber positions among the Court’s conservative bloc was 31 points higher than the average support for the Chamber by the Court’s moderate/liberal bloc (74% to 43%). There simply was not a similar ideological division revealed in our study of the Burger Court. For example, the voting records of then-Justice William Rehnquist, widely viewed as the most conservative member of the Burger Court, and Justice William Brennan, probably its most liberal member, differed by only three points – 46% Chamber support compared to 43%, respectively. Even Justice Lewis Powell – who worked for the Chamber before joining the Court, writing a now famous memorandum urging the Chamber to take advantage of a “neglected opportunity in the courts” – only supported the Chamber’s position 53% of the time, the highest percentage of any member of the Court during that period.

Significantly, this ideological shift in favor of corporations appears to be driven entirely by the Court’s conservative members.  While a member of the Court’s more moderate bloc still votes with the Chamber 43% of the time — a rate that is comparable with conservative Justice William Rehnquist’s votes in the early 1980s — the five conservatives have become consistent votes for the Chamber’s position.  In other words, left-leaning justices have largely stood still, while the Court’s conservatives sprinted into the arms of corporate America.

And there can be no doubt that the nation has suffered dearly because this corporate capture of the judiciary.  In just the last few years, right-wing justices have immunized powerful corporate interest groups from campaign finance law, from laws intended to protect the environment, and from laws intended to protect women and older Americans in the workplace.

Connecticut GOP Attorney General candidate Martha Dean supports nullification, the unconstitutional theory that states can invalidate federal laws that they don’t like. Moreover, after a blog post by the progressive Constitutional Accountability Center (CAC) called her out on her “dangerous and unconstitutional views,” CAC reports that Dean doubled-down. According to CAC, Dean herself responded to their blog post by copying and pasting an article by pro-Confederate activist Thomas Woods into a comment on their blog:

Dean’s choice to take policy guidance from Woods is both bizarre and ill-advised. Woods, one of the founders of the neo-Confederate League of the South, once published an article declaring the Confederacy to be “Christendom’s Last Stand.” In it, Woods endorses the view that the Civil War was a battle between “atheists, socialists, communists, red republicans, jacobins on the one side and the friends of order and regulated freedom on the other,” and he concludes that “[t]he real watershed from which we can trace many of the destructive trends that continue to ravage our civilization today, was the defeat of the Confederate States of America in 1865.”

Nor is this the first time that Dean aligned herself with the pro-Confederate Woods. In a recent debate, Dean actually read aloud from Woods’ recent book supporting nullification.

Yet, while Woods is clearly a fringe figure nostalgic for one of the most embarrassing episodes in American history, his views are sadly quite influential among today’s GOP. Woods has contributed dozens of articles to the Tenth Amendment Center, a pro-nullification group which pushes political candidates to sign a pledge promising to nullify federal laws — such as Social Security and Medicare — which don’t comply with their radical “tenther” view of the Constitution. U.S. House candidate Marty Lamb (R-MA) and Alabama GOP gubernatorial candidate Robert Bentley have both signed this pledge. Meanwhile, Governors Bob McDonnell (R-VA) and Bobby Jindal (R-LA) put Woods’ ideas into practice by signing obviously unconstitutional laws claiming to nullify the Affordable Care Act, and Minnesota GOP gubernatorial candidate Tom Emmer is a eager to do the same.

Moreover, the Republican Party’s refusal to distance itself from a would-be Jefferson Davis such as Woods is par for their course. As Think Progress has documented, there is virtually no view too radical to find a home in today’s GOP.

The Roberts Court has pursued an almost single-mindedly pro-corporate agenda, immunizing powerful corporate interest groups from campaign finance law, from laws intended to protect the environment, and from laws intended to protect women and older Americans in the workplace.  Unfortunately, however, a recent Gallup poll suggests that these actions are going largely unnoticed by Americans at large.  According to the poll, an individual’s opinion of just one justice — Justice Sonia Sotomayor — appears to drive their opinion of the Court at large far more than the Court’s actual decisions.

Justice Sotomayor joined the Court in August of 2009, and Gallup’s data shows a dramatic shift in public approval of the Court among both Democratic and Republican voters at the time of her confirmation:

Apparently, Democrats love Justice Sotomayor, as their approval of the entire Court nearly doubled after she joined it.  Likewise, Republicans must loathe Sotomayor, since their approval of the very conservative Court declined 16 points the minute Sotomayor became a justice.

Both of these shifts bear little resemblance to the actual impact of Sotomayor’s confirmation.  Justice Sotomayor is a center-left moderate who replaced another center-left moderate, Justice David Souter.  And while there are some early indications that Sotomayor may be slightly to Souter’s left on corporate immunity cases and slightly to Souter’s right on executive power, it is diffcult to identify a single case that would have come out differently if Souter were still on the Court.

The “Sotomayor Effect” may also explain why an increasing percentage of Americans perceive the Court as “too liberal” even as the Court marches further and further to the right:

Once again, the data shows an increasing belief that the Court is liberal at the same time that Sotomayor joined its ranks, and a decrease in the number of people who perceive the Court as conservative.  Likewise, the data shows a spike in the number of people who perceived the Court as “too conservative” at about the same time that conservatives Chief Justice John Roberts and Justice Samuel Alito joined the Court.  In other words, many Americans appear to base their opinion of the overall Court largely on the political views of the last high-profile nominee to be confirmed (Justice Kagan appears to have had a minimal impact on public perceptions of the Court, but most of the nation was distracted from her confirmation by the Gulf oil disaster and other higher profile stories).

Most importantly, this data demonstates the challenges facing progressives trying to educate the public about the harm the Roberts Court has done to American law.  Hopefully, however, the public’s almost universally negative reaction to the Court’s most high profile corporate immunity case will begin to bleed through to public perceptions of the Court as a whole.

Anti-Gay Michigan Official Andrew Shirvell

After spending much of the week refusing to discipline an assistant attorney general who launched a bizarre harassment campaign against the first openly-gay president of the University of Michigan student body, Michigan Attorney General Mike Cox (R) finally announced today that his subordinate would face a disciplinary hearing:

Cox spokesman John Sellek said, however, Andrew Shirvell will be the subject of a disciplinary hearing after he returns to work at an undetermined future date. . . .

Cox said he hadn’t earlier read all of Shirvell’s blog, “Chris Armstrong Watch,” which dogs Armstrong, the 21-year-old, openly gay president of U-M’s student government and accuses him of “anti-Christian behavior,” “mocking God,” promoting homosexuality and trying “to recruit your sons and daughters” into the gay lifestyle.

“I’m at fault here,” Cox said. “I’ve been saying for weeks that (Shirvell’s) been acting like a bully, that his behavior is immature, but it’s after-hours and protected by the First Amendment.”

Cox’s prior assertion that Shirvell enjoys First Amendment protection was always a little bizarre.  While the First Amendment does provide a fairly robust shield to public employees who engage in political advocacy during their time off, it should not apply to someone who engages in a public campaign of harassment and stalking a single individual because of their sexual orientation.

In Rankin v. McPherson, the Supreme Court established that even the most awful forms of speech on a matter of public concern cannot themselves be the sole basis for firing a public employee.  In that case, a clerical official in a local police station was fired after she commented to a co-worker that if someone tries to assassinate President Reagan again, she hopes they “get him.”  The Supreme Court deemed this to be protected speech, despite the inexcusable nature of the comment.  But that is hardly the entirety of the Court’s analysis.

As Rankin makes clear, “the manner, time, and place of the employee’s expression are relevant, as is the context in which the dispute arose.”  Most significantly for Shirvell’s case, statements which publicly discredit a government agency are much more likely to be firing offenses:

Nor was there any danger that McPherson had discredited the office by making her statement in public. McPherson’s speech took place in an area to which there was ordinarily no public access; her remark was evidently made in a private conversation with another employee. There is no suggestion that any member of the general public was present or heard McPherson’s statement. Nor is there any evidence that employees other than Jackson who worked in the room even heard the remark. Not only was McPherson’s discharge unrelated to the functioning of the office, it was not based on any assessment by the Constable that the remark demonstrated a character trait that made respondent unfit to perform her work.

Unlike the fired employee in Rankin, Shirvell has gone out of his way to publicize his views.  He launched a hate blog attacking a gay undergraduate student, did multiple press interviews and even appeared on prime time TV news.  Gay Michiganders should worry about the kind of justice Shirvell would advocate for on their behalf, and all Michiganders should worry that their legal interests are being advanced by an obviously unstable individual.

To be clear, just like the First Amendment protects inexcusible verbal attacks on President Reagan, it also permits state employees to hold anti-gay views and to express those views in most settings.  When a single state employee reasonably causes the state’s residents to doubt the competence and the motivations of an agency, however, that agency has the right to let him go.

Yesterday, in a letter to the two Senate Leaders and the Chair and Ranking Member of the Judicary Committee, President Obama slammed the widespread obstructionism that has slowed judicial confirmations to a trickle:

I write to express my concern with the pace of judicial confirmations in the United States Senate. Yesterday, the Senate recessed without confirming a single one of the 23 Federal judicial nominations pending on the Executive Calendar. The Federal judiciary and the American people it serves suffer the most from this unprecedented obstruction. One in eight seats on the Federal bench sits empty, and the Administrative Office of the U.S. Courts has declared that many of those vacancies constitute judicial emergencies. Despite the urgent and pressing need to fill these important posts, a minority of Senators has systematically and irresponsibly used procedural maneuvers to block or delay confirmation votes on judicial nominees – including nominees that have strong bipartisan support and the most distinguished records. The minority has even been blocking non-controversial nominees – a dramatic shift from past practice that could cause a crisis in the judiciary. . . .

Proceeding this way will put our judiciary on a dangerous course, as the Department of Justice projects that fully half of the Federal judiciary will be vacant by 2020 if we continue on the current pace of judicial confirmations. The real harm of this political game-playing falls on the American people, who turn to the courts for justice. By denying these nominees a simple up-or- down vote, the Republican leadership is undermining the ability of our courts to deliver justice to those in need. All Americans depend on having well-qualified men and women on the bench to resolve important legal matters – from working mothers seeking timely compensation for their employment discrimination claims to communities hoping for swift punishment for perpetrators of crimes to small business owners seeking protection from unfair and anticompetitive practices.

The President’s letter largely repeats the strong case against obstructionism that has been made by numerous commentators, including myself.  But its significance is not the content of the letter, it is the person who is now making it.  President Obama’s letter — along with a recent op-ed on the same topic by Attorney General Eric Holder — is a hopeful sign that the White House will ramp up its efforts to fill the more than one hundred vacant judgeships.

There is no question that the nation has suffered dearly because of the right’s current stranglehold on the judiciary.  This stranglehold enabled conservatives to give corporate America sweeping immunity from the law.  Indeed, in just the last few years, right-wing judges and justices have immunized powerful corporate interest groups from campaign finance law, from laws intended to protect the environment, and from laws intended to protect women and older Americans in the workplace.

And as the President points out, the right’s crusade has now created a whole new problem for the American people — obstructionism has reached such a level that the courts are being hollowed out.  Presently, the average litigant waits more than nine months for a decision in federal court, and they can wait years for justice if the case is appealed or requires a full trial.

These numbers will only get worse if conservatives continue to block Obama’s nominees, but they sadly show no desire to let up now.  Simply put, the right has decided that if it can’t have corporate justice, there will be no justice at all.