Herman Cain kicked off his campaign last week by lecturing the country on its need to “reread the Constitution” — even though Cain himself couldn’t tell the difference between the Constitution and the Declaration of Independence. Sadly, this does not appear to be an isolated incident. Last October on his radio show, Cain launched into a impassioned rant about how federal bankruptcy law violates the Constitution:

All of the talk about a national foreclosure freeze . . . all they’re trying to do is appeal to people’s emotions. You see, the United States federal government, folks, has no jurisdiction over bankruptcy law. States do!

So, if some states decide that they want to investigate some of these phony or incomplete foreclosures, it’s up to the states. This is not even under the jurisdiction of the federal government! But it sounds good. It really sounds good, though.

Watch it:

Once again, Cain really should try reading our founding document before he lectures others about it. According to Article I of the Constitution, “[t]he Congress shall have power . . . [t]o establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States.” So the Constitution actually says the exact opposite of what Cain claims it says, because Congress power to make “uniform” bankruptcy laws prevents the states from creating their own rules for bankruptcy.

Or, to put it another way, claiming that helping foreclosure victims is unconstitutional may “sound good” to Cain’s right-wing supporters, but it has no basis whatsoever in the actual Constitution.

The police are not allowed to stop someone for no reason, but there is a longstanding rule establishing that the police can stop someone for one reason even if they really hope to find evidence of something else. If the cops stop you for driving with a busted tail light but they secret hope to catch you with cocaine, you cannot challenge your drug bust in court on the grounds that the cops’ original reason for stopping you was based on a pretext. So long as they are allowed to stop you for the busted tail light, they can arrest you on any lawful grounds they discover during the course of that stop.

Today, the Supreme Court extended this rule to so-called “material witness” warrants. Federal law authorizes judges to “order the arrest of [a] person” whose testimony “is material in a criminal proceeding . . . if it is shown that it may become impracticable to secure the presence of the person by subpoena.” Invoking this law, former Attorney General John Ashcroft allegedly detained a man named Abdullah al-Kidd under false pretenses:

The complaint alleges that, in the aftermath of the September 11 terrorist attacks, Ashcroft authorized federal prosecutors and law enforcement officials to use the material-witness statute to detain individuals with suspected ties to terrorist organizations. It is alleged that federal officials had no intention of calling most of these individuals as witnesses, and that they were detained, at Ashcroft’s direction, because federal officials suspected them of supporting terrorism but lacked sufficient evidence to charge them with a crime.

It is alleged that this pretextual detention policy led to the material-witness arrest of al-Kidd, a native-born United States citizen. FBI agents apprehended him in March 2003 as he checked in for a flight to Saudi Arabia.Two days earlier, federal officials had informed a Magistrate Judge that, if al-Kidd boarded his flight, they believed information “crucial” to the prosecution of Sami Omar al-Hussayen would be lost. Al-Kidd re-mained in federal custody for 16 days and on supervised release until al-Hussayen’s trial concluded 14 months later. Prosecutors never called him as a witness.

Today’s decision holds that “an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive.” In other words, if Ashcroft could legally detain al-Kidd as a material witness, it does not matter if the former attorney general had a nefarious reason for doing so.

Interestingly, Justice Kennedy, joined by Justices Ginsburg, Breyer and Sotomayor, filed a concurring opinion questioning whether Ashcroft did indeed have the legal authority to declare al-Kidd a material witness in the first place. Because Justice Kagan was recused, it is possible that she could provide the key fifth vote in a later case to limit law enforcement’s authority under the material witness statute.

Sixth Circuit Judge Jeffrey Sutton

Tomorrow, the Sixth Circuit will become the second appeals court to consider a constitutional challenge to the Affordable Care Act’s provision requiring most Americans to either carry insurance or pay slightly more income taxes. The three judge panel hearing tomorrow’s case includes Judge Boyce Martin, a reliably progressive vote, and Judge Jeffrey Sutton, a hardline conservative with a long history of states rights and GOP activism. In other words, the result in this case could come down to the panel’s third member, an obscure trial judge named James Graham with far less of a record on constitutional issues.

Despite this ideologically divided panel, the court has hinted strongly that it will dismiss the case without considering the merits at all. Here are five possible outcomes for this case, ordered from the narrowest resolution to the most sweeping:

• Case Dismissed as Moot

No one is allowed to sue to strike down a law simply because they don’t like it; any plaintiff must first show that the law has actually injured them in some way. In this case, the district court permitted the case to move forward because one of the plaintiffs alleged that they were currently rearranging their finances to be able to afford insurance when the law goes into effect in 2014, thus this plaintiff has somehow been injured by the ACA’s insurance tax even though this provision hasn’t even gone into effect yet. Last week, however, the plaintiffs’ attorneys alerted the court that she decided to go ahead and purchase insurance seven months ago — long before she can credibly blame the ACA for causing her to become insured. DOJ almost immediately moved the court to dismiss the case as moot because there is no longer a plaintiff who is actually subject to the law.

If the court grants DOJ’s motion, which seems likely, it will be interesting to see whether they also levy some harsh words or even a threat of sanctions against the plaintiffs’ attorneys. Nearly two dozen briefs were filed in this case, and each judges’ chambers has probably been burning the midnight oil for weeks to prepare for this very high-profile case. If the attorneys knew that their client had mooted the case months ago but they failed to inform the court until many, many hours of work later, the judges will not be amused.

• Case Dismissed as Premature — Standing or Ripeness
  

Because the plaintiffs challenge a law that doesn’t take effect until 2014, it is not entirely clear that they — or anyone else for that matter — has been harmed in any way by the ACA. The court previously asked the parties to file additional briefs focusing on whether the plaintiffs need to pack up their legal briefs and come back in a few years when the ACA has taken full effect, which is a strong indication that the court may dismiss the case on these grounds. A decision on these “standing” or “ripeness” grounds would be significantly broader than decision dismissing the case as moot, because a standing or ripeness decision would likely shut down all ACA litigation until 2014 or later, while a mootness decision might allow other cases to move forward.

• Case Dismissed as Premature — Tax Anti-Injunction Act

The Fourth Circuit recently noted that a similar case may need to be dismissed because of the Tax Anti-Injunction Act which forbids a court from “restraining the assessment or collection of any tax,” although it does permit courts to order the government to refund a taxpayer who has already paid a tax. Because no one has actually paid a tax that doesn’t take effect until 2014, court could dismiss the case on these grounds.

• Facial vs. As-Applied Challenges

The Supreme Court allows two kinds of challenges to a law: “facial” challenges, that claim that the law must be effectively striken from the books, and “as applied” challenges, which claim that the law cannot be applied to a particular person or entity. In order to bring a facial challenge, however, a party must show that “no set of circumstances exists under which the Act would be valid.”

In this case, the plaintiffs claim that because they have decided not to take a particular action — buying health insurance — they are somehow immune from federal commercial regulation. However, even if the court were to accept this exceedingly questionable theory, it is not actually the case that every single person in the country has not at some point participated in the health insurance market. Accordingly, the court could require all challenges to the ACA to be brought on an as-applied basis, drastically limiting the potential impact of these lawsuits.

• Reach the Merits

Perhaps the least likely outcome in this case, in light of the court’s repeated requests for the parties to brief procedural issues, is that the court will actually reach the merits. Judge Sutton, who is widely perceived as actively campaigning for a seat on the Supreme Court, is likely to be especially uninterested in deciding a constitutional question that will either guarantee that Senate Democrats would prevent him from being confirmed or that Republicans would never nominate him in the first place.

ThinkProgress is thrilled to announce the launch of ThinkProgress Justice, our new blog focusing on the courts, the Constitution, and the increased role litigation plays in shaping policy.

More and more often, lawsuits have become politics by other means. Republican lawmakers lost their bid to block health reform in the elected branches, and immediately asked the courts to overrule the democratic process. When corporate lobbyists fail to block consumer and worker protections in the legislature, they immediately seek immunity from these new laws through legal doctrines such as preemption and tricks such as forced arbitration. Cases such as Bush v. Gore and Citizens United v. FEC leave the very results of our elections up to men in black robes.

TP Justice will provide in depth legal analysis of high-profile court cases, such as the Affordable Care Act litigation, but it will also highlight equally important legal and constitutional developments that too often fly under the radar. The whole nation took notice when the Supreme Court opened the floodgates to billions of corporate dollars in American elections, but major developments such as the Supreme Court’s decision effectively eliminating consumer class actions often go unnoticed. TP Justice will provide you with the information you need to understand how the courts are being used to push an agenda that would never fly in the elected branches.

Additionally, TP Justice will examine the battle to shape the judiciary through judicial nominations and confirmation fights. And it will continue ThinkProgress’ focus on conservative efforts to remake the Constitution into a document that is hostile to workers, immigrants, Medicare and Social Security.

Please visit TP Justice often and feel free to leave comments on our posts. You can also follow us on Twitter at @TPJustice.

Senate Republicans will prevent the Senate from recessing next week in order to halt President Obama’s ability to make temporary recess appointments:

President Barack Obama won’t be able to make any executive recess appointments when senators are home next week for the Memorial Day recess – including Elizabeth Warren, Obama’s pick to head the Consumer Financial Protection Bureau.

The Senate will be in “pro forma session” because Republicans are threatening to block adjournment, Senate leadership aides said. A senator who lives in nearby Virginia or Maryland will be asked to briefly open and close the session on those days, during which time no business will be conducted.

It’s difficult to read this move as anything other than an attempt to squelch the new consumer protection agency before it even gets off the ground. Earlier this month, all but two of the Senate’s Republicans joined a letter announcing they would not confirm anyone President Obama nominates to run the CFPB, even if Obama nominates a Republican. Congressional Republicans’ attempt to prevent Obama from making a recess appointment is a transparent attempt to prevent the president from ensuring that this essential office has the personnel in place that it needs to operate.

In the end, this kind of gamesmanship is nothing less than an end run around American democracy. The Constitution provides that the law creating the CFPB can be repealed if both houses of Congress and the president agree to repeal it — and not simply because the minority party in the Senate decides to throw a tantrum.

Almost as soon as Justice Kagan was nominated to the Supreme Court, conservatives unleashed a volley of lies claiming that she is required to recuse herself from the lawsuits challenging the Affordable Care Act. Although Kagan previously served as Obama’s solicitor general, she is only required to recuse herself from cases where she actively participated as a lawyer in that very same case — simply working in the same office as a lawyer who worked on the ACA litigation doesn’t cut it.

Nevertheless, former Minnesota Gov. Tim Pawlenty used Kagan’s recusal from a case she actually did work on as solicitor general as an opportunity to misrepresent her recusal obligations:

“I also am pleased that Justice Elena Kagen properly recused herself from participating in this ruling because of her previous position as President Obama’s Solicitor General, a precedent she must also follow when Obamacare is presented before the court,” said Pawlenty.

Pawlenty’s statement is not only false, it effectively accuses a sitting Supreme Court justice of perjury despite no evidence whatsoever justifying the claim. Kagan testified that she had no involvement whatsoever in the health care litigation during her confirmation hearing — a testimony she gave under oath. So the only way that Kagan could be required to recuse is if she knowingly lied to the Senate during her testimony. If Pawlenty actually has evidence that Justice Kagan committed such a felony, he should produce it. Otherwise, he would do well to avoid such slanderous accusations.

Sadly, Pawlenty is not the first high-profile conservative to toss around this spurious charge. Sen. Orrin Hatch (R-UT) previously made a similar accusation against Kagan, although he quickly walked back his claim after he came under fire for making such a serious allegation against a justice without any evidence to support the claim.

Writing in the Christian Science Monitor, attorney Mark Greenbaum paints a depressing picture of President Obama’s record on judicial nominations, noting — among other things — that Presidents Clinton and Obama nominees tend to be quite a bit older than President George W.  Bush’s:

As of mid-May, Obama had made 30 nominations to the circuit courts. Of those, just seven were age 50 or younger, and the average age of all his nominees was 54. By way of comparison, Bush had made 43 nominations to the appeals courts at a similar point in his presidency. And 21 of them were 50 or under leading to an average age of just 50 overall. [...]

Republicans have had a simple strategy when it comes to judicial appointments: go young. That Bush tapped so many young judges for such high posts mirrored similar moves by both his father and Ronald Reagan who installed dozens of judges in their early 40s and even their 30s. Democrats have gone in the other direction, both under Obama, as well as Clinton, whose circuit appointees averaged 53 years old.

The four year gap between Obama’s average judge and Bush’s may not seem like a lot, but it is enough to significantly tilt the bench towards Republicans over time. If the average judge were to retire at age 70, this means that Bush’s judges will each serve 25 percent longer than Obama’s.

And these numbers underestimate the impact a handful of exceptionally young judges can have. Justice Thomas was only 41 when he first became a judge. The first President Bush nominated Chief Justice Roberts to the D.C. Circuit when Roberts was only 37. Such youthful nominees can be viable Supreme Court candidates for a president elected as must as fifteen years later. None of Obama’s presently confirmed appellate judges, by contrast, will be a viable Supreme Court nominee in 2026.

A little over a week ago, the Sixth Circuit issued an order hinting that they were likely to dismiss a challenge to the Affordable Care Act on procedural grounds without reaching the question of whether the law is constitutional. This afternoon, the Fourth Circuit issued a similar order requiring the parties in two health care cases to brief a different set of procedural questions which could have the same effect of dismissing the case without a decision on the merits:

1. When applicable, does the Anti-Injunction Act, 26 U.S.C. § 7421(a), deprive a federal court of subject-matter jurisdiction? See J.L. Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 5-8 (1962). If so, does it divest federal courts of jurisdiction in this case? See Bob Jones University v. Simon, 416 U.S. 725, 736-48 (1974).

2. Can a court determine that a challenged exaction qualifies as a “tax” for purposes of the Anti-Injunction Act without reaching the question of whether the exaction qualifies as a “tax” for purposes of Art. I, § 8, cl. 1? Compare Bailey v. George, 259 U.S. 16 (1922), with Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922).

3. Assuming the Anti-Injunction Act does apply in this case, does a plaintiff have the ability to challenge the exaction provided by § 5000A in a refund suit or otherwise? See 26 U.S.C. § 7422(a); 28 U.S.C. §§ 1331, 1340, 1346.

The Tax Anti-Injunction Act forbids a court from “restraining the assessment or collection of any tax.” In essence, it provides that a court may not prevent a state or federal government from collecting a tax, although it does permit courts to order the government to refund a taxpayer who is required to pay an unlawful tax.

This law is relevant here because the Affordable Care Act requires most Americans to either carry health insurance or pay slightly more income taxes. Because this tax does not take effect until 2014, however, no one has actually paid it and thus no one has the right sue to have this portion of their taxes refunded. Thus, if the Anti-Injunction Act will not allow anyone to sue to keep from having to pay the ACA’s tax in the first place, no one will be able to challenge health reform for several years.

The court’s concern over whether the Anti-Injunction Act “deprive[s] a federal court of subject-matter jurisdiction” is also an interesting window into the court’s thinking. If the Anti-Injunction Act applies here, but it somehow does not deprive the Fourth Circuit of jurisdiction, than the judges may nonetheless be able to reach the merits of whether the ACA is constitutional.

Even so, this order, like the Sixth Circuit’s order before it, highlights the very serious procedural flaws in the anti-health reform team’s litigation strategy. If both the Fourth and the Sixth Circuit dismiss this case on procedural grounds, it becomes very unlikely that the merits of this litigation will be resolved until long after the ACA has gone into effect.

Ever since President Obama signed the Affordable Care Act into law, Republicans have lined up in lockstep behind the lawsuits claiming the ACA is unconstitutional — even though those lawsuits have no basis whatsoever in the Constitution or precedent. Senate Judiciary Ranking Member Chuck Grassley (R-IA) even signed onto an amicus brief claiming that the law is unconstitutional. Yet, in a floor statement opposing Goodwin Liu yesterday, Grassley unleashed a blistering attack on the idea that courts should be second-guessing democratically elected lawmakers in the way the ACA’s opponents are now begging the judiciary to second-guess Congress:

Another problem I have with [Goodwin Liu’s] statement is the portion that quote “the court of appeals is where law is made.” We have heard this view before. While serving as a circuit judge, Justice Sotomayor stated that the court of appeals quote “is where policy is made.” Now I understand that there are elements of our society who wish this were the case. Those who can’t get their policy views enacted through the legislative process, as our Constitution requires, often turn to the courts — but I flatly reject that notion. The Constitution vests legislative power in the Congress, not the courts. Judges are simply not policymakers.

Watch it:

There is something delightfully retro about Grassley’s statement. As he reminds us, conservatives thought as recently as 2009 that an effective messaging strategy was to feign umbridge at the very idea that judges might play a role in shaping the law.

Of course, this messaging strategy was either naive or willfully ignorant. Conservative Justice Antonin Scalia has said that judges “often ‘make law.’” And there is simply no question that when the Supreme Court wipes out sixty years of campaign finance regulation or effectively eliminates consumer class actions or strips many women and older workers of their ability to receive equal pay for equal work that they have changed the face of American law.

The biggest problem with Grassley’s anachronistic use of this two year-old talking point, however, is that it unambiguously and unequivocally disavows the GOP’s single highest constitutional priority — getting the courts to overrule the democratically enacted Affordable Care Act by any means necessary. The GOP desperately wants to repeal this law but it cannot, in Grassley’s words “get th[is] policy view[] enacted through the legislative process, as our Constitution requires,” so they have turned to a legal theory which cannot be squared with nearly two centuries of precedent.

In 1824, the Supreme Court held that Congress’ authority to regulate interstate commercial transactions is “complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution,” which is just a Nineteenth Century way of saying that Congress can regulate national markets such as the health care market however it wants so long as it don’t violate any other part of the Constitution, such as the right to free speech or racial equality or the right to bear arms. Yet in their very first appellate argument challenging the ACA, the law’s opponents could not point to a single word of the Constitution which suggests that the law is invalid. Nevertheless, they still insist that the courts must strike the law down.

This is judicial activism in its purest form. Democratically elected officials spoke. The losers of that debate don’t like what they said, so they want the courts to scrap 200 years of precedent in favor of a legal theory that no one had even articulated until 2009.

It’s likely that Grassley simply did not understand the implications of his words when he repeated the same talking points that dominated the GOP’s constitutional arguments until the ACA became law. Nevertheless, it is impossible to square those words with his constitutionally indefensible stance on the ACA. If Grassley truly does “flatly reject” the idea that judges may second-guess elected officials, than he should prove it by expressly disavowing the ACA litigation.

Yesterday, the Wonk Room wrote that tomorrow’s cloture vote on the Goodwin Liu judicial nomination is a truth-telling contest for conservatives — will Senate conservatives side with Ken Starr and John Yoo, who support Liu’s nomination, or will they buy various right-wing interest groups’ distortions of Liu’s record? Sadly, Sen. Jeff Sessions (R-AL) lost this contest today in an interview on Fox News:

Well, he has no real experience. He’s never tried a case. … He’s one of the most activist judges I think most of us have ever seen to be nominated. He believes there’s a constitutional right to welfare, for example. He has written some extraordinary things that have caused great concern.

Watch it:

Liu does not believe in a “constitutional right to welfare,” but Liu’s opponents have consistently made this baseless claim because of an article Liu published which actually says the opposite. As law Professor Jesse Choper explains:

Liu’s “conception of the judicial role does not license courts to declare rights to entirely new benefits or programs not yet in existence.” Welfare rights, Liu says, “cannot be reasoned into existence by courts on their own.” The main thrust of the article is to reject the view, advanced by legal scholars in the 1960s and 1970s, that courts can read into the Constitution a theory of distributive justice. Instead, Liu argues for “legislative supremacy” in defining welfare rights. For example, he says, there is “no role for courts” to question Congress’s decision in the 1996 welfare reform law to end the sixty-year old entitlement of poor families to cash assistance.

Liu does believe that the Constitution provides certain protections that ensure fair and equal access to welfare — but so does conservative Justice Antonin Scalia. Scalia, who, like Liu, spent most of his career in the legal academy and government service before becoming a judge, joined the Supreme Court’s decision in Saenz v. Roe. Saenz struck down a California law on constitutional grounds because it denied some California residents a portion of their welfare benefits. So if Liu’s stance on constitutional welfare disqualifies him from the federal bench, it also disqualifies Scalia.

This is hardly the first time that Sessions and his fellow conservatives held one of Obama’s judicial nominees to a standard that Scalia himself would fail. Sessions grilled Justice Elena Kagan because she wouldn’t label the Affordable Care Act unconstitutional — even though Scalia has also rejected the right’s arguments against this law. Kagan was also attacked because she once worked on a presidential memorandum preventing foreign gun manufacturers from importing military-grade firearms such as Uzis into the United States, even though Scalia wrote in D.C. v. Heller that it is perfectly constitutional to ban “weapons that are most useful in military service.”

The lesson that emerges from Sessions and others’ attacks on Liu isn’t that he is some kind of radical — why, then, would the likes of Ken Starr and John Yoo support him? The lesson that emerges from this entire debate is that Liu’s opponents have moved so far to the right that mainstream nominees like Liu — or even strident conservatives like Scalia — are no longer acceptable to them.

Legal Times reports that Ninth Circuit judicial nominee Goodwin Liu could finally receive a cloture vote this week after waiting more than a year for this preliminary vote. It is difficult to imagine a better affirmation of the American Dream than Liu’s elevation to the federal bench. A son of Taiwanese immigrants who learned English in kindergarten, Liu’s intellect and drive propelled him to Stanford undergrad, a Rhodes scholarship, Yale Law School, a Supreme Court clerkship, a law practice at a leading law firm and, now, a professorship at one of the nation’s top law schools. Liu would also become the only active Asian-American judge on the Ninth Circuit, despite the fact that one in ten residents of the circuit are Asian Pacific Americans, and he will fill a vacancy that the Administrative Office of the U.S. Courts deems a “judicial emergency.”

Yet Liu has also emerged as one of President Obama’s most controversial nominees — although it’s not entirely clear why. A core focus of Liu’s scholarship, for example, is the impact of the Constitution on education policy. As a letter co-signed by conservative legal lion Kenneth Starr — yes, THAT Kenneth Starr — explains, this scholarship hardly paints Liu as some kind of kneejerk liberal:

Goodwin (and his co-author Bill Taylor) wrote an article in Fordham Law Review in 2005 defending the use of school vouchers to provide better educational opportunities for children trapped in failing schools. The article provides a careful and candid review of the evidence on how vouchers have worked in practice, and it responds to the critics of vouchers in a direct and forceful way. We are fairly sure that this piece did not win Goodwin any friends in the liberal establishment, but it reflected his sincerely reasoned view about one way to improve the life chances of some of our most disadvantaged children.

Starr’s praise is echoed by his fellow Berkeley Law Professor John Yoo — yes THAT John Yoo — who calls Liu “very well qualified” and describes him as someone who will be “a good judge on the bench.”

Yet, while conservatives like Starr and Yoo have the integrity to tell the truth about Liu’s mainstream record, right-wing interest groups have mined Liu’s many pages of scholarship for out-of-context quotes that can be lifted to falsely paint him as a radical. One of Liu’s law review articles, for example, can best be described as trying to reconcile the judiciary’s role in protecting federal welfare rights with the need to ensure judges behave in a way that is consistent with our fundamentally democratic values. Liu envisions judges as subservient to the Constitution and the laws our elected leaders enact. In Liu’s words, “it is only through democratic adoption of a program of mutual aid that that a welfare right plausibly comes into being for courts to recognize.”

Liu’s belief that the judiciary must protect certain people’s access to social welfare programs is far from radical. In Saenz v. Roe, the Supreme Court struck down a California law on constitutional grounds because it denied some California residents a portion of their welfare benefits. Justice Antonin Scalia, one of the Court’s most conservative members, was in the majority in Saenz. Nevertheless, Liu’s critics tout his apparent agreement with Scalia as proof that he would seize power from elected officials and create massive new welfare programs by fiat.

This distortion of Liu’s writings pervades the arguments against his confirmation. Several of his opponents point to an article where he expressly states that he “do[es] not address whether the Supreme Court or any court should hold that the Fourteenth Amendment guarantees an adequate education” as proof that he would do something conservatives apparently view as appalling—hold that the Constitution guarantees every American child an adequate education. Even a few senators joined these distortions, claiming that Liu was “vicious” and “unfair” to then-Judge Samuel Alito for accurately pointing out several controversial decisions in Alito’s past — including a memo Alito wrote arguing that cops should be allowed to shoot a fleeing purse-snatcher in the back to prevent him from getting away with ten stolen dollars.

The truth is that Liu’s record leaves no doubt that he understands that a judge’s job is to faithfully follow the Constitution as it has been interpreted by the Supreme Court. Watch a compilation of Liu explaining his views in his own words:

When the full Senate considers Liu’s nomination, its members will have a simple decision to make. They can follow Starr and Yoo’s lead and fairly evaluate Liu’s completely uncontroversial record, or they can accept the interest groups’ distortions as gospel. If they decide to give these interest groups a veto power over Liu’s nomination, America will be all the poorer for losing one of the judiciary’s most talented nominees.

Yesterday, the House passed the so-called “Putting the Gulf Back to Work Act,” which is intended to make it easier for the oil industry to drill in the Gulf of Mexico. Sadly, this bill also continues the GOP’s longstanding practice of rigging the court system to favor wealthy and influential interest groups. Tucked within the bill is a provision that consigns many lawsuits involving oil drilling into a federal court that is dominated by judges with close ties to the oil industry:

SEC. 202. EXCLUSIVE VENUE FOR CERTAIN CIVIL ACTIONS RELATING TO COVERED ENERGY PROJECTS IN THE GULF OF MEXICO.

Venue for any covered civil action shall not lie in any district court not within the 5th circuit unless there is no proper venue in any court within that circuit.

It should come as no surprise that the oil industries’ allies in Congress want to make sure that only Fifth Circuit judges get to hear the industry’s appeals. When it is not busy ordering high school cheerleaders to pay $45,000 because they sued the school district that required them to cheer for their alleged rapist, the Fifth Circuit’s judges have cozied up tightly with the oil industry.

Ten of the Fifth Circuit’s sixteen active judges have oil investments, including Chief Judge Edith Jones, who owns as much as $330,000 in oil interests. Two Fifth Circuit judges, Jerry Smith and Eugene Davis, even ruled in favor of the oil industry in a major drilling moratorium case despite the fact that they both attended expense-paid “junkets for judges” sponsored by an oil-industry funded organization. A third Fifth Circuit judge, Edith Clement, actually serves on the board of this organization, despite an opinion from the federal judiciary’s ethics committee saying that Clement violates her ethical obligations by remaining on this board.

The House GOP’s effort to shift the oil industry’s litigation into a court dominated by oil-friendly judges in only the right’s latest attempt to stack the deck in favor of corporate parties and against ordinary Americans:

• Forced Arbitration: Last month, Justice Scalia penned a 5-4 opinion expanding an abusive practice known as “forced arbitration” that allows corporations to force their consumers, workers and patients to sign away their right to sue the company in a real court, and instead bring any lawsuits in a privatized arbitration system that overwhelming favors corporations.

• Court Packing: The Florida GOP is pushing a court packing plan that would neuter the state supreme court’s Democratic appointees and allow Gov. Rick Scott (R) to appoint three new justices.

• Buying Elections: Wisconsin Supreme Court Justice David Prosser allowed corporate lobbyists to write a judicial ethics rule allowing justices to decision cases where one of their campaign donors was a party. The corporate lobby paid Prosser back by massively outspending supporters of Prosser’s opponent in the justice’s recent reelection campaign.

• Justice for Sale: Four conservative Supreme Court justices joined a dissent by Chief Justice Roberts saying that would have permitted a wealth coal baron to pay $3 million to place a justice on the West Virginia Supreme Court in order to overturn a $50 million verdict against his company.

It’s bad enough that corporate America thinks that they are above the law, but it is inexcusable that the GOP is fighting tooth and nail to give the wealthiest and most powerful interests all the legal immunity their hearts’ desire.