Shameful echoes of Scalia

Curt Levey

In a front page story in the Washington Post today, Alliance for Justice President Nan Aron, among others, discusses the progress made toward a more diverse judiciary under President Obama. The story also included Coalition for Justice President Curt Levey’s shameful insinuation that the Administration might have “a lower threshold of qualifications for minorities.” Not only does Levey’s sentiment mirror Supreme Court Justice Antonin Scalia’s notorious “racial entitlement” language last week in the Voting Rights Act oral argument, it is outright false.

Each and every federal court nominee put forward under President Obama – whether a white male or an African-American woman – has been rated qualified or well-qualified to serve as a federal judge by the American Bar Association. And rather than facing a “lower threshold,” a study by University of Rochester professor Maya Sen shows that the ABA systematically holds women and minorities to a higher standard than white men. In other words, with all other objective qualifications equal, the ABA has given harsher ratings to women and minorities than to their otherwise identical white male counterparts.

The facts clearly reflect that President Obama’s movement toward a judiciary that more closely resembles America has brought both diverse and exceptional nominees to a Senate which has delayed far too long in confirming them.  Levey’s insulting accusation is an affront to the nominees, to the president, and to the American people, who have long since moved past these sorts of racial canards.

Read more about President Obama’s federal court nominees and impact on the judiciary.

Scalia: A round-up of the responses

Antonin Scalia

By now you've probably read Justice Antonin Scalia's appalling comments explaining how he justifies equating laws banning sodomy with those barring bestiality and murder.  (And if you haven't you can catch up with them here.)

Fortunately, there have been some important responses from, among others:

• The New York Times
• The Washington Post
• The Daily Beast
• Salon
• And cartoonist Tom Toles

Of course the most important response will come when all nine justices rule on cases involving the so-called Defense of Marriage Act and Proposition 8.  The night before the Supreme Court decided to take those cases, panelists at AFJ's Conversation with Jeffrey Toobin previewed the issues:

Why Judges matter: Is DOMA really doomed?

Responding to the decision by a second federal appellate court that the so-called Defense of Marriage Act is unconstitutional, a decision discussed in detail in the previous post to this Blog, Washington Post editorial writer Jonathan Capehart wrote a column headlined “DOMA is doomed.”

DOMA defines marriage as only between a man and a woman.  Its practical effect is to deny married gay couples the same federal benefits as other married couples, such as federal employee health benefits for spouses and Social Security survivor benefits.  As Capehart wrote: “It’s flat-out discrimination.”

But does that necessarily mean it’s doomed?  We certainly hope so.  But, as the distinguished legal scholar Stephen Colbert put it in discussing another discrimination case: “It’s the time of year again when skeletal figures shrouded in black fill your mind with fear – because the Supreme Court is in session.”

Seriously – the place where past generations turned to right wrongs and end discrimination now is a place that all advocates for equality must view with trepidation.

The court is expected to decide next month whether to hear appeals from the decisions on DOMA.  It also may hear an appeal from a 9^th Circuit Court of Appeals decision striking down Proposition 8, the voter-approved referendum that banned gay marriage in California.

On the one hand, Justice Antonin Scalia’s recent contemptuous dismissal of gay rights should add to the fear factor.  On the other hand, Justice Anthony Kennedy, often seen as the court’s swing vote, has shown some sympathy toward gay rights.

The President of the Human Rights Campaign, Chad Griffin, told Capehart: “We are at a monumental tipping point as the Supreme Court stands poised to review a law that has resulted in treating gays and lesbians as second-class citizens.”

The question is: Which way will the Supreme Court tip?

WHY JUDGES MATTER: Washington Post columnist blasts judicial war against sensible regulation

It’s not just the majority on the U.S. Supreme Court that has been undermining our rights and liberties while pandering to corporate special interests.

In a blistering column Sunday, Pulitzer Prize-winning Washington Post business columnist Steven Pearlstein tears into some of the judges on what is widely-regarded as the nation’s second highest court, the U.S. Court of Appeals for the District of Columbia Circuit.

Pearlstein blasts judges on that court for:

• Striking down a regulation calling for graphic health warnings on cigarette labels.
• Striking down a regulation allowing shareholders to nominate directors of the companies they own.
• Striking down regulations to control air pollution that would "prevent between 13,000 and 34,000 premature deaths, 15,000 non-fatal heart attacks, 19,000 hospital and emergency room visits, and 1.8 million lost days of school or work."

Pearlstein notes that the money saved through these health benefits is 50 to 100 times greater than the cost of the regulations.

Pearlstein calls the judge who wrote the air pollution opinion, Brett Kavanaugh, "nothing more than a partisan shock trooper in a black robe waging an ideological battle against regulation." He calls Kavanaugh’s opinion in the case "60 pages of legal sophistry, procedural hairsplitting and scientific conjecture." And he adds:

It is a hallmark of "conservative" judges that they genuflect before the tabernacle of judicial restraint even as they throw themselves lustily into the pit of judicial activism.

Read the entire column here.