Think Progress

‘Party of No’ Continues To Hold Obama Judges Hostage

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

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

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

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

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

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

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

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

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

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

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

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

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Bachmann: Health Care Reform Is Unconstitutional

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

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

Watch it:

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

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

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

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

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

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

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

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

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

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

McCain Opposes Activist Judges, Unless They’re Conservative

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

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

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

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

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

Tancredo: Sotomayor Pals Around With Mexican Separatists

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

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

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

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

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

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

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

Afraid Of NRA, Conservative Democratic Senators Waffle On Sotomayor Vote

Noting Judge Sonia Sotomayor’s record on the Second Amendment, Sen. Mark Begich (D-AK) told Roll Call that that he is “undecided” on her nomination to the Supreme Court (although he added that he is “leaning toward voting in favor”). Sen. Ben Nelson (D-NE) expressed similar uncertainty:

“I accept her judicial philosophy of fidelity to the law,” Nelson said during a telephone conference call from Washington.

Nelson said he also believes Sotomayor is committed to supporting settled judicial precedent.

But, he said, he needs to “convince myself she won’t be an activist” on the court.

“I need an opportunity to review a few things,” the Democratic senator said.

Both senators’ equivocal statements come in the wake of the NRA’s decision to “score” the Sotomayor vote in determining where each lawmaker stands on the NRA’s pro-gun agenda. The NRA claims, falsely, that because Sotomayor once upheld a New York law against a Second Amendment challenge this somehow proves that she is hostile to gun rights. That decision, however, did nothing more than apply well-established law.

Because lower-court judges are required by law to follow the commands of the Supreme Court, Sotomayor once joined an opinion which followed a Supreme Court case holding that the Second Amendment doesn’t apply to the states. Nevertheless, the NRA launched a smear campaign against Sotomayor this month, claiming that she “deliberately misread Supreme Court precedent to support her incorrect view” in this case.

Frankly, the NRA is either lying, or it doesn’t know what it’s talking about. Not only was Sotomayor correct to follow the Supreme Court’s Second Amendment decision, but a unanimous opinion authored by Federalist Society darling Frank Easterbrook agreed with Sotomayor that state laws are not subject to Second Amendment scrutiny. Even the right-wing of the judiciary understands that judges are not free to ignore the law simply because the NRA doesn’t like it.

In the end, Begich and Nelson’s decision may be decided — not by Sotomayor’s actual record — but by how afraid they are of the NRA.

Sessions Uses Sotomayor Nomination To Continue His Lifelong Crusade Against Civil Rights

Conservatives have chosen a strange leader to spearhead their charge against Judge Sotomayor — Sen. Jeff Sessions (R-AL). With only days remaining until Sotomayor’s confirmation hearings begin, Sessions has focused his attacks on Sotomayor’s past service on the board of the Puerto Rican Legal Defense and Education Fund (PRLDEF), a leading civil rights organization that Sessions calls “extreme” because it “brought several race discrimination lawsuits for minorities” while Sotomayor sat on its board.

Setting aside the facial absurdity of this attack — race discrimination is illegal, a fact which apparently also bothers Sessions — it’s puzzling that conservatives would let Sessions be their public face of opposition against the first Latina nominated to the Supreme Court, especially in light of his own checkered history with race.

In 1986, Sessions’ nomination to the federal bench was rejected by the Senate because of Sessions’ deep-seated hostility to the very notion of civil rights. In comments that are strikingly similar to his recent attacks on PRLDEF, Sessions attacked the NAACP as an “un-American” and “Communist-inspired” organization that “forced civil rights down the throats of people.” When confronted about these statements at his confirmation hearing, Sessions reluctantly conceded that they “probably w[ere] wrong.” Watch:

Nor were Sessions’ attacks on the NAACP an isolated incident. As a federal prosecutor, Sessions conducted a tenuous criminal investigation into voting rights advocates that registered African-Americans to vote, an investigation that culminated in an unsuccessful prosecution against a former aide to Dr. Martin Luther King, Jr. Additionally, an African-American attorney who once worked for Sessions testified at his hearings that Sessions said that he “used to think [the KKK] were OK” until he found out some of them were “pot smokers.” The same attorney also recalled being called “boy” by Sessions and being told to “be careful what you say to white folks” after Sessions overheard him chastising a white secretary.

So Sessions’ attacks on PRLDEF fit into a much larger pattern; they are just the most recent phase of Sessions’ crusade against civil rights and the organizations that promote them. America has changed a lot since 1986, but Jefferson Beauregard Sessions III remains exactly the same.

Operation Rescue Founder Launches ‘Defeat Sotomayor’ Roadshow

Randall Terry, founder of the right-wing extremist group Operation Rescue, has announced a twelve-city tour intended to convince senators that “[t]o refuse to filibuster [Sotomayor] is to bow in abject obedience to the Angel of Death.” The graphic depicted to the right is taken from a flier promoting the event, which claims:

“We must stop permitting this hypocrisy, cowardice, and treachery in our midst. Pro-life voters are calling on pro-life Senators to filibuster Sotomayor.

“A Senator cannot say, ‘I want to overturn Roe,’ and then vote to confirm a Supreme Court Judge that will uphold Roe. A vote to confirm Sotomayor is a vote to uphold Roe.

“Many senators use pro-life rhetoric to seduce us; they get our money, our volunteer labor, and our votes. But once an election is over, they discard us like an embarrassing mistress. . . . Whether they ‘have the votes’ to sustain a filibuster or not, they need to fight to stop her, for the sake of the babies who will die under her judicial reign.“

Sadly, such rhetoric is relatively tame by Terry’s extremist standards. Terry refused to condemn the recent killing of abortion provider Dr. George Tiller, instead calling him a “mass-murderer” who “did not have time to properly prepare his soul to face God.” Terry also once went on the radio to pray for a Colorado abortion provider to be executed; two days later, that doctor was found dead.