In Making Noise Over Kagan, Republicans Gloss Over More Serious Ethical Problems

On June 24, 49 Republican representatives sent a letter to the House Judiciary Committee Chairman Lamar Smith (R-TX), requesting an inquiry into Justice Elena Kagan’s ability to rule on the constitutionality of the Patient Protection and Affordable Care Act (PPACA). In response, Rep. Smith sent a letter to Attorney General Eric Holder, demanding documents pertaining to Justice Kagan’s role in the PPACA while she served as Solicitor General.

The partisan purpose of this inquiry is exceedingly transparent: House Republicans are trying to force Justice Elena Kagan’s recusal from an expected Supreme Court hearing of the challenges to the health-care law. This is politics at its worst and shows that the radical right is prepared to use any means necessary to rig the outcome in the Supreme Court.
This is not the first attempt that has been made by Republicans to smear Justice Kagan and prevent her from hearing the much-awaited case. CNSNews, a right-wing news outfit, tried the same tactic last year when it filed a Freedom of Information Act (FOIA) with the Solicitor General’s Office demanding documents relating to Kagan’s participation in the health care legislation.
A review of the documents released by the Solicitor General in response to this request makes one thing clear: there is no evidence to suggest that Justice Kagan had any personal participation in the health-care case that would warrant her recusal. In fact, Justice Kagan has distinguished herself as being particularly interested in avoiding the appearance of impropriety, having already recused herself from over 20 cases in her first term on the bench.

House Republicans may have another motivation for these partisan inquiries directed at Kagan: they divert attention from more serious ethical problems that face the Supreme Court.

First, though Justice Kagan is not one of them, there actually are justices on the Court who have demonstrated a stubborn reluctance to recuse themselves, even when their recusal was clearly warranted. In 2004, Justice Scalia insisted on participating in Cheney v. United States, despite having a close personal relationship with the defendant More recently, reports have highlighted the involvement of Justice Thomas' wife in conservative groups that have an active interest in high-profile cases -- including the very same challenge to the health-care law anticipated by the House Republicans in their letter to Rep. Smith.

By focusing on Justice Kagan in particular, Republicans are clearly attempting to draw attention away from the justices who actually do deserve closer scrutiny. At the very least, Republicans hope to establish a "both sides do it" media narrative to make other challenges appear every bit as partisan as their own.
More important, however, these inquiries into Justice Kagan’s behavior gloss over the fundamental, non-partisan problem: Supreme Court justices are not subject to the same ethical rules as all other federal judges and are allowed to follow (or ignore) the ethical rules as they see fit. Both Justices Scalia and Thomas have shown that the self-policing requirement is inadequate. Without fundamental change to the ethical rules that pertain to Supreme Court Justices, these inquiries – whether warranted or not – will continue.

Senate Judiciary Committee Democrats Denounce Pro-Corporate Bias

The Senate Judiciary Committee will voted 13-6 to advance the nomination of Elena Kagan to the Supreme Court of the United States yesterday. Continuing one of the major themes from her confirmation hearing, many Democratic Senators used the vote as an opportunity to spotlight the undue influence that powerful corporate entities currently enjoy on the Supreme Court. AFJ applauds the Senators who used the hearing to highlight the pro-corporate bias of the current court, many examples of their statements are below. You can learn more about the Corporate Court and take action at www.thecorporatecourt.com.

Senator Franken offered this insight on the agenda of the conservative wing of the Court: “There is such a thing as judicial activism, there is such a thing as legislating from the bench and it is practiced repeatedly by the Roberts Court, and it has cut in only one direction—in favor of powerful corporate interests and against the rights of individual Americans.”

And, contesting to Justice Roberts’ self-depiction as an uninterested umpire, Senator Whitehouse said, “precedents, whether of old or recent vintage, have been discarded at a startling rate. Statutes passed by Congress have been tossed aside with little hesitation, and constitutional questions of enormous import have been taken up hastily and needlessly…. There is an unmistakable pattern. For all the talk of umpires and balls and strikes at the Supreme Court, the strike zone for corporations gets better every day.

Senator Schumer, too, commented on this phenomenon: “The rightward shift of the Court under Chief Justice Roberts is palpable. In decision after decision, special interests are winning out over ordinary citizens.” Senator Cardin warned that “If you work for a living, if you are a woman, or if you are worried that corporations can buy a louder voice in an election than hardworking, everyday Americans, you need to keep an eye on the activism being practiced by this Supreme Court.”

Many Democratic Senators focused their questions for Kagan on a number of Roberts Court decisions that highlight the intense corporate bias of the current Court, including Citizens United v. FEC, Exxon v. Baker, Ledbetter v. Goodyear Tire & Rubber Co., Rent-A-Center v. Jackson, Leegin Creative Leather Products, Inc. v. PSKS, Inc., Rapanos v. United States, and Gross v. FBL Services.

Citizens United

Nearly all of the Democratic Senators on the Committee spoke out against the landmark Citizens United decision, which opened the floodgates to corporate spending in elections.

• Senator Franken noted that a full that 80 percent of Americans disagreed with the decision. He also lambasted the Court for guaranteeing an outcome that favored corporations by changing the issue after the case had been tried, argued, and appealed, noting “if that isn’t outcome-oriented, I don’t know what is.”
• Senator Whitehouse made a similar critique, noting that the Court had to engage in inappropriate fact-finding rather than limiting its consideration to the record before it in order to reach the decision it did in Citizens United.
• Senator Kaufman warned of the “massive amounts of money” large corporations have at their disposal and the potential for corporations to “spend hundreds of millions of dollars if they decide it was in their interest to do so and completely overtake whatever individual expenditures we have in the country.”

· Comparing the Citizens United decision to the right-wing, anti-regulation Lochner decision, Senator Schumer warned: “I am concerned that we'll soon find ourselves back in the Lochner era of activist judging….In allowing corporations to spend unlimited sums to influence elections, Citizens United showed just how much the current conservative bloc on the court, in its zeal to bend the Constitution to an ideology, has lost sight of the practical consequences of some of its decisions.”

• Senator Franken predicted what some of those practical consequences might be, warning that corporations would not only spend huge sums of money on elections, but also “when we try to protect against oil drilling in deep water when we don’t have safety precautions or Wall Street fraud. They’re going to spend their money against the consumer and environmental laws that protect our families and our homes.”

Exxon v. Baker

With oil gushing into the Gulf of Mexico while the confirmation hearing took place, many senators addressed the recent Supreme Court decision of Exxon v. Baker, which reduced the plaintiffs’ original award by 90% and promulgated a new rule that punitive damages cannot exceed compensatory damages in maritime cases.

· Senator Feingold criticized the decision, stating: “It’s not hard to read this decision, especially in light of what's happened in the Gulf, as the Supreme Court giving a free pass to reckless corporations, even when our health and environment are at stake. This is also one of many decisions over the last decade where the Court has bent over backwards to find a way to protect corporate interests.”

· Senator Cardin too criticized the decision, noting that along with the Rapanos decision, it had the effect of weakening “environmental protections that were hard-fought in Congress.”

• Senator Kaufman warned that the Court’s decision to slice the plaintiffs’ damages by two billion dollars could have the effect of lessening incentives for companies like Exxon or BP to take appropriate safety precautions to avoid potential spills.

Ledbetter v. Goodyear Tire & Rubber Co.

While Congress has rectified the injustice created by the Roberts’ Court decision in Ledbetter by passing the Lily Ledbetter Fair Pay Act, numerous senators expressed frustration over the decision and the Court’s seeming inability to foresee the real-world consequences of the decision.

• Senator Cardin railed that the Court used the case to articulate a new test that was “incredible to believe” and which made it “impossible” to discover pay discrimination and bring a timely claim.
• Senator Whitehouse stated that “the Ledbetter case allowed an employer to get away with wage discrimination as long as it his it successfully from the employee.”

Rent-A-Center v. Jackson

Senators Whitehouse and Franken discussed the Rent-A-Center v. Jackson case, handed down the week before the Kagan hearing. The case involved a challenge to the enforceability of a mandatory arbitration agreement employees were required to sign as a condition of employment.

• Senator Whitehouse criticized the Court’s decision: “Only last week, the Rent-A-Center decision concluded that an employee who challenges as unconscionable an arbitration demand must have that challenge decided by the arbitrator.”
• Senator Franken described the problematic nature of mandatory arbitration agreements: “These clauses basically say if we violate your fights, you can’t take us to court. You have to take it to an arbitrator. But then the fine print essentially says an arbitrator that we pay who depends on us for work and who makes decisions in secret.” He reached back to criticize a related 2001 decision issued by the Rehnquist court, Circuit City Stores v. Adams, and criticized the Supreme Court for ignoring the legislative history, which indicated that Congress did not intend for employment contracts to be subject to mandatory arbitration clauses. He chastised the Court for its “strained reading of the law” in Circuit City Stores and urged Kagan to give more deference to “the reasons [Congress] passed a law in the first place.” Senator Franken continued his assault on the Court’s favoritism of powerful corporate interests by criticizing the Roberts’ Court recent Rent-A-Center v. Jackson case: “Rent-A-Center argued that only the arbitrator could decide whether the arbitration clause was unfair. Last week, the Roberts Court sided with Rent-A-Center. Talk about not getting your day in court. Now you can’t get your day in court to get your day in court.”

Leegin Creative Leather Prods, Inc. v. PSKS, Inc.

Senator Cardin commented on the effect of the Leegin decision, which invalidated a rule against corporate price-fixing: “Are you a consumer? Do you buy products for you or your family? If so, the Supreme Court in Leegin – yet another 5-4 split – should be of concern to you too. Here, the Court ignored long-standing precedent to protect big business to perpetuate price-fixing. It was a ruling that put consumers at risk.”

Rapanos v. United States

Many senators expressed concern over the weakened environmental protections in effect after the Rapanos case, which restricted the federal government’s jurisdiction over many of the nation’s waterways under the Clean Water Act.

· Senator Cardin criticized the case as a “step backwards” for the environment because of the reduced protection for wetlands under the Clean Water Act.

· Senator Franken, too, expressed concern about the decision: “in Rapanos the Court struck down these regulations, because it said they were too broad, even though they had been in place for up to 30 years or actually necessary to protect America’s water. And this water is what people drink, people catch fish in, and that our kids swim in. Thanks to this case and a similar case known as Swank, the Clean Water Act now it doesn’t cover half of the nation’s largest polluters.”

Gross v. FBL Financial Services

Many senators remarked on Gross v. FBL Services, which made it considerably more difficult for victims of age discrimination to prove their case by creating a new rule that in a mixed-motive age discrimination case, the plaintiff must prove that discrimination was the sole reason for the termination.

· Senator Whitehouse lamented that the case “made it harder for a victim of age discrimination to prove his or her case” and Senator Franken noted that the “the Roberts Court made it easier for corporations to fire older Americans and get away with it.”

· Senator Schumer remarked on the practical difficulty this decision presented: “courts have recognized that only employers have access to the evidence of their own motivation.”

· Senator Cardin echoed these concerns: “Now, how do I explain to a 50-some-year-old woman with a couple of children who is fired after 25 years in the workforce because the employer wants to hire someone half her age and pay 1/3 the salary, how is she getting a fair shake when the Supreme Court changes the test in order to avoid the current protections we thought we had in the law against age discrimination?”

Join AFJ at Netroots Nation

This coming week the Alliance for Justice is proud to be sponsoring two panels at Netroots Nation, Fighting Back: Responding to Attacks on Community Organizers and Progressive Groups and Liberal Perspectives on the Kagan Supreme Court Nomination. This, the fifth annual gathering of the Netroots (formerly known as the YearlyKos Convention) will be held July 22-25 in Las Vegas, NV. Netroots Nation 2010 promises to include panels led by national and international experts; identity, issue and regional caucuses; prominent political, issue and policy-oriented speakers; a progressive film screening series; and the most concentrated gathering of progressive bloggers to date.

Nan Aron, President and Founder of Alliance for Justice will be moderating the panel Fighting Back: Responding to Attacks on Community Organizers and Progressive Groups on Thursday, July 22nd. The panel will focus on progressive organizations fighting back against conservative attacks, and feature speakers: Garlin Gilchrist II is Director of New Media and co-founded and contributes to The SuperSpade: Black Thought at the Highest Level, one of the nations leading Black political blogs, Bertha Lewis was Chief Executive and Chief Organizer of ACORN and is now a representative from Service Employees International Union (SEIU), Ari Rabin-Hayt who has worked for Senate majority leader Harry Reid and Al Gore and currently is Vice President for Research and Communications at Media Matters.

Nan will also be speaking on the panel Liberal Perspectives on the Kagan Supreme Court Nomination on Friday and we have just learned that this panel will be televised, for those of you who cannot attend in person. The panel will focus on Elena Kagan's potential impact on the court as well as the nomination process – in addition to Nan Aron the speakers panelists include Senator Benjamin L. Cardin; elected 2006, he serves on the Foreign Relations Committee, Judiciary Committee, Environment and Public Works (EPW) Committee, Budget Committee and Small Business Committee, Keith Kamisugi; Director of Communications at the Equal Justice Society, Pam Karlan ; Kenneth and Harle Montgomery Professor of Public Interest Law and founding director of the school’s Supreme Court Litigation Clinic, and Dahlia Lithwick; senior editor and legal correspondent for Slate, with Joan McCarter, Senior Policy Director at Daily Kos, moderating.

The Alliance for Justice is happy to have the chance to support these two important and timely discussions at this year’s Netroots Nation in Las Vegas and we encourage everyone who can make it to attend this year's gathering. You can stop by our booth in the exhibit hall and learn more about our work, including our current campaign to brand the Supreme Court as the Corporate Court. We will also be live tweeting from the event, you can follow @NanAron for updates.

WATCH: Senator Schumer Calls Out Court's Rightward Shift

Join the fight against the Corporate Court.

Franken Hopes Kagan Will Follow In Stevens Footsteps

You can watch the video here:

Elena Kagan's Antidote to the Corporate Court: "A Fair Shake for Every American"

Reposted from Huffington Post: http://www.huffingtonpost.com/nan-aron/elena-kagans-antidote-to_b_628457.html

It seems appropriate on the day that Elena Kagan went before the Senate Judiciary Committee for a seat on the Supreme Court to quote another woman pioneer. It was Eleanor Roosevelt who said, "Justice cannot be for one side alone, but must be for both."

Unfortunately, the First Lady's admonition seems almost quaint. We are in the midst of one of the most political times in the modern history of the Supreme Court. In fact, scholars say four out of the five most conservative justices who have sat on the Court since the New Deal are on the bench right now. And the five current conservatives, enthusiastically led by John Roberts, are using their one-seat majority to shred long-standing principles and precedents to favor one side - the corporate side.

Sen. Orrin Hatch, echoing the well-worn Republican mantra, asked in the Kagan hearing today whether "the Constitution will control her or will she try to control the Constitution." That's an odd statement coming from someone who neglected to ask John Roberts or Samuel Alito the same question. Perhaps he should have, because with decision after decision coming down on the side of big business, the Roberts Court has proven itself to be the willing and eager participant in an aggressive conservative effort to advance a political agenda that consistently favors big corporations over average citizens. The evidence is clear: in close decisions the conservative quintet favors the Chamber of Commerce position 84 percent of the time.

The Kagan hearing is focused on her qualifications and philosophy, as they must be. But they are also about the future of the Court itself and the ideological battleground she will enter when she is confirmed. Sen. Al Franken got it right today when he said, "There is such a thing as legislating from the bench. And it is practiced repeatedly by the Roberts Court, where it has cut in only one direction: in favor of powerful corporate interests, and against the rights of individual Americans."

Sen. Franken and many others mentioned the notorious Citizens United case as evidence of a Court running amok. But that's not the only instance of this Corporate Court straying well off the mainstream path to make sure that every decision day at the Court is CEO Appreciation Day.

Our research shows that in the past several years, the Court has gone out of its way to radically rewrite laws in order to shield big business from liability, insulate corporate interests from environmental and antitrust regulation, make it easier for companies to discriminate against women and the elderly, and to enable powerful interests to flood our election process with special interest dollars.

Just last week, the Court kept up the drumbeat of attacks on the interests of Americans who have the misfortune of not being corporate titans when it told Antonio Jackson he was out of luck in challenging workplace discrimination. His employee contract required arbitration to settle disputes, and the Court, in a case of circular logic only people with a serious agenda can muster, said that the only entity that can judge whether the arbitration process is fair is the arbitrator himself; the courts have no role. The message: America's courts are not for people like Mr. Jackson.

We believe its time to fight back against the spurious claim from Republicans that anyone not a rock-ribbed conservative is an out-of-control judicial activist and that their judges are perfectly neutral "umpires" with absolutely no ideological bias of any kind. As Sen. Sheldon Whitehouse said today about Roberts's umpiring crew, "the strike zone for corporations gets better everyday." Indeed. That's why Alliance for Justice has launched a campaign to expose the Corporate Court for what it is and to support efforts in Congress to undo as many of its most harmful decisions as possible.

The Supreme Court has been transformed into the Corporate Court and we're all at risk of losing fundamental freedoms and of surrendering the legal system to ever-greater corporate power. Elena Kagan today called for a Court that is devoted to "a fair shake for every American." Those plain words reflect the hopes of all Americans for their judiciary. We look forward to Justice Kagan taking that old-fashioned ideal into the Court's chambers where, sadly, it seems to have been forgotten.

Alliance for Justice Releases Report on Kagan

Alliance for Justice announced its support today for the nomination of Elena Kagan to a seat on the United States Supreme Court. This endorsement is accompanied by a detailed report analyzing her views and actions on key legal issues, particularly during her years in the Clinton White House and service as Solicitor General. The 54-page report, which covers her record on topics such as the First Amendment, due process, civil rights, criminal justice, executive power, national security, and corporate oversight, among others, is available here: http://www.afj.org/check-the-facts/supreme-court-watch/report-on-kagan-final.pdf.

When President Obama first announced Elena Kagan as his nominee to replace Justice Stevens he stated that Kagan will maintain a “commitment to protect our fundamental rights" and understands that "in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.” Alliance for Justice has long been concerned by the unmistakable trend of the current Court to favor powerful corporate interests over those of everyday Americans, and we believe that Elena Kagan will stand against this tide and will be a strong voice in defense of the core constitutional values Americans cherish.

The confirmation hearings in the Senate Judiciary Committee will begin on Monday, June 28, at 12:30 p.m. You can follow AFJ’s response to the proceedings on Twitter and on our website.

The Corporate Court Limits Access to Justice

The recent 5-4 ruling in Rent-A-Center v. Jackson has further limited the ability of Americans to have their day in court. The majority opinion, written by Justice Scalia, holds that the Federal Arbitration Act of 1925 only allows a court to review a complaint to an arbitration agreement within a larger contract if the person making the claim objects specifically to the delegation clause (compelling binding arbitration). This decision means the Supreme Court ruled that companies have even more power to strip people - unaware of the intricacies of filing a complaint about their contract - of their right to access the court. The Court’s decision Monday is another example of the Roberts Court judicial activism working on behalf of large corporations at the expense of ordinary Americans, in this case, by misinterpreting a 85-year-old law.

This decision affects all Americans who sign agreements with arbitration clauses including the hundreds-of-millions of cell phone subscribers, the estimated one-hundred-million Americans that work under binding arbitration agreements, and anyone else in America that signs a contract with a business that chooses to include this agreement in their contracts. The dissenting opinion, written by the soon to be retired Justice Stevens, defended employee and consumer rights against arbitration agreements. With the Kagan hearing just 6 days away, the question remains if the would-be replacement to Justice Stevens shares his conviction on the rights of Americans.

Justice Matters: Diversity and the High Court

Today the Hispanics for a Fair Judiciary held a panel discussion on Elena Kagan and the impact of the Supreme Court on the Latino community. The discussion was lead by was lead by Representative Linda Sanchez (D-CA) and included James Ferg-Cadima, DC Regional Counsel, Mexican American Legal Defense and Educational Fund (MALDEF), Maria Cardona, Founding Member, Hispanics for a Fair Judiciary (HFJ) and Nancy Zirkin Executive Vice President for Policy, The Leadership Conference on Civil and Human Rights. The panel spoke to a standing room only crowd of Hill staffers and others. The discussion regarded the panelists’ takes on how the courts affect the Latino community, how race and diversity among judges affect the courts, and how Elena Kagan would change the Supreme Court if confirmed.

On the issue of the courts affecting Hispanics Rep. Sanchez spoke about the impact of the federal courts on the lives of Americans, specifically citing how Mendez v. Westminster lead to desegregation and elimination of “Mexican” schools in Orange County shortly before her birth. The issue of diversity in the courts led to discussion on Safford v Redding as an instance where diversity provides insights that are otherwise difficult for a Justice to have. The panel concluded that Kagan’s background of not being a judge, historically speaking, is not a far departure from precedent and that the historic first - three female Justices serving simultaneously on the court - could provide better insight for future rulings.

Our Next Supreme Court Justice?

AFJ President Nan Aron spoke as a panelist today at CAPITOL HILL ISSUES BRIEFING: Our Next Supreme Court Justice? with fellow panelists Tom Goldstein, publisher of SCOTUSBlog, and Robert Alt, Senior Legal Fellow and Deputy Director for the Heritage Foundation's Center for Legal and Judicial Studies. Politico Congressional Bureau Chief Martin Kady joined the panel as moderator.

An audience of dozens welcomed the panel to the Woodrow Wilson International Center for Scholars to discuss Solicitor General Elena Kagan's nomination to the Supreme Court. Since the announcement of President Obama's nomination, none have doubted Kagan's qualifications. Before becoming the first female Solicitor General, Kagan served as the first female dean of Harvard Law.

Kicking off the panel, Aron reviewed the image of Ms. Kagan as portrayed by the press: a moderate choice between other liberal front runners Diane Wood and Syd Thomas, and center-right moderate Merrick Garland. Elena Kagan's lack of a judicial record, Aron suggested, leaves a lot to be discovered about her views from the upcoming release of documents from Kagan's service in the Clinton White House. Robert Alt added that Kagan's lack of a record made her a safe pick, one that President Obama chose for youth rather than experience. Citing Kagan's own criticism of the confirmation process, Alt stressed the importance of an unrushed, deliberate process in Kagan's nomination. Goldstein stressed the politics of the decision. With 59 democrats in the Senate, Goldstein said, there was little chance of a failure to confirm even a known liberal nominee. Instead of trying to shift the ideology of the Court, Goldstein believes the President chose a nominee whose smooth confirmation wouldn't distract from financial and economic reform.

Nan Aron closed the panel by saying that she expected a strong hearing performance from Elena Kagan, already weathered from her confirmation to be Solicitor General. While Kagan's qualifications are the focus of the hearings, Aron suggested that they should also serve as a platform to remind citizens of the importance of quickly confirming fair, impartial, open-minded judges to balance the conservative activists appointed during the Bush administration.

Alliance for Justice thanks event sponsors the National Press Foundation, the Center on Congress at Indiana University, and Politico for their invitation to participate. For a look at Solicitor General Kagan's background, read our report, and our snapshot of women in the judiciary. To stay up on developments in the confirmation, check back frequently at our Supreme Court Watch.

President Obama Announces Elena Kagan as Supreme Court Pick

President Obama has just announced Solicitor General Elena Kagan as his pick to fill the vacancy created by Justice John Paul Stevens' retirement. You can read the statement from AFJ President Nan Aron on this nomination here.

This is an historic moment. Of the 111 justices who have served on the Supreme Court, only three have been women. If confirmed, Kagan will be the fourth, and on the first Monday in October, for the first time in history, three women would take their seats on our nation’s highest court. According to our just released report on Women in the Judiciary, women currently comprise just 24.7% of sitting federal judges (252 out of 1,018 federal judges, both active and senior status, are females).

President Obama should be commended for nominating another woman to the nation’s highest court, and we urge him to continue to rectify the gender imbalance in the federal judiciary by continuing to nominate women for judgeships.

To learn more about Elena Kagan, read our recently released report. We will continue to provide you with detailed information on Kagan's record throughout this nomination process.

We look forward to a fair and expeditious hearing for Elena Kagan and to a constructive, civil debate about the rights of the American people under the Constitution and the role of the courts in protecting the interests of all Americans, regardless of wealth, power, and influence.