February 24, 2016

On the Nomination of a Justice to the Supreme Court

Mr. President, we are here on this conflict we have over a Supreme Court nominee, which has turned into a considerable, unprecedented fuss, I believe, for a fairly simple reason. The elephant, so to speak, in the room is that the Court has become a political actor under Chief Justice Roberts. The rightwing bloc on the Court delivered politically because it had a 5-to-4 majority. Now their rightwing majority is gone, and Republicans are predictably upset.

Justice Frankfurter admonished that “it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court’s giving effect to its own notions of what is wise or politic.”

Well, that was then. The five-judge bloc on the Roberts Court , of which Justice Scalia was an essential part, systematically and predictably pronounced policy in favor of three things: No. 1, conservative ideology; No. 2, the welfare of big corporations; and No. 3, the electoral well-being of the Republican Party.

And people noticed. Linda Greenhouse wrote that it is “impossible to avoid the conclusion that the Republican-appointed majority is committed to harnessing the Supreme Court to an ideological agenda.” Other noted Court watchers, such as Norm Ornstein and Jeffrey Toobin, agree. As Jeffrey Toobin noted, the pattern of decisions “has served the interests, and reflected the values, of the contemporary Republican party.” Columnist Dana Milbank observed of a recent decision that “the Roberts Court has found yet another way to stack the deck in favor of the rich.” The Court has become so political that Justices Scalia and Thomas have attended the Koch brothers’ secretive annual political conference. Just this week, Ms. Greenhouse wrote, “[T]he conservative majority is permitting the court to become an agent of partisan warfare to an extent that threatens real damage to the institution.”

It is not just the Court watchers who have noticed; less than one-third of Americans have confidence in the Supreme Court . Americans massively oppose its Citizens United decision–80 percent against, with 71 percent strongly opposed.

Most tellingly, by a ratio of 9 to 1, Americans now believe the Court treats corporations more favorably than individuals. Even conservative Republicans agree, by a 4-to-1 margin, that this Court treats corporations more favorably than individuals.

Let’s take a look at the Court’s decisions in these three areas: election politics, corporate interests, and the conservative social agenda.

In elections decisions, the Court’s Republican-appointed majority always seems to come down on the side that helps the election prospects of the Republican Party.

The Voting Rights Act, for example, protects minority access to the ballot,and in States that had long histories of discriminating against minority voters, it required preclearance of voting restrictions. In the 5-to-4 Shelby County decision, the Republican-appointed Justices gutted that preclearance requirement.

Predictably, the result was almost immediate enactment across many States of voter-suppression laws. The Washington Post described, for instance, the “surgical precision with which North Carolina Republicans approved certain forms of photo IDs for voting and excluded others.” Texas, for another instance, allowed gun permits for voting but not State university IDs.

And even where these voter-suppression laws ultimately fail in court , Republicans still gain the benefit of fewer Democrats in the electorate while they are litigated.

The conservative judges’ decisions on gerrymandering are a second example. “Gerrymandering” is named after Massachusetts Governor Elbridge Gerry and his efforts to shape the district of a State senator he needed to protect.

A clever modern variant of gerrymandering has emerged–bulk gerrymandering–which looks at the whole congressional delegation of a State. This tactic isolates Democrats into small, supersaturated Democratic districts so that majority-Republican districts can be created out of the remainder of the State. By manipulating the districts this way through its so-called REDMAP project, Republicans delivered congressional delegations that didn’t reflect the State’s popular vote, over and over.

For instance, when Pennsylvania voters went to the polls in 2012, Democratic votes for Congress outnumbered Republican votes by a little over 80,000. Pennsylvania also reelected President Obama that year and our colleague, Democratic Senator Bob Casey. But Pennsylvania at that ballot sent a House delegation to Congress of 5 Democrats and 13 Republicans–more votes for Democrats, more Republicans in the delegation by 13 to 5.

This was not just a Pennsylvania fluke. In 2012, Ohio voted for Barack Obama for President and returned our Democratic colleague Sherrod Brown to the Senate but sent 12 Republicans to Congress and only 4 Democrats. Wisconsin voted for Obama in 2012 and elected progressive Senator Tammy Baldwin to the Senate but sent five Republicans and only three Democrats to Congress.

The Republican organization behind REDMAP bragged of this achievement. I will quote REDMAP’s memo:

[A]ggregated numbers show voters pulled the lever for Republicans only 49 percent of the time in congressional races, [but] Republicans enjoy a 33-seat margin in the U.S. House seated yesterday in the 113th Congress, having endured Democratic successes atop the ticket and over one million more votes cast for Democratic House candidates than Republicans.

This gerrymandering ran wild because in a Supreme Court case called Vieth v. Jubelirer, four Republican Justices announced that they would no longer question whether gerrymandering interfered with any constitutional voting rights. One, Justice Kennedy, left a glimmer of light, but the practical effect was to announce open season for gerrymandering. As the American Bar Association’s publication on redistricting has noted, “The Court’s recent decisions appear to give legislators leeway to preserve partisan advantage as zealously as they like when drawing district lines.” In practice, gerrymandering of Congress squarely benefited Republicans.

A third example is campaign finance decisions, the most noticeable being Citizens United, but a constellation of decisions surrounds Citizens United, beginning with Justice Powell’s 1978 opinion in First National Bank of Boston v. Belloti. The careful work of Republican appointees on the Court over many years to open American politics to corporate spending has conferred obvious political advantage to the Republican Party, and, as many news outlets reported, it was Republicans who cheered the Citizens United decision.

So, in elections, it is three for three in favor of the Republican Party.

Turning from elections to the conservative agenda on social issues, such as religion and abortion and gun control, let’s start with the District of Columbia v. Heller decision, a Second Amendment decision in which this same five-man bloc created, for the first time in our history, an individual right to keep firearms for self-defense. As recently as 1991, this doctrine was such a fringe theory that it was publicly described by retired Chief Justice Warren Burger as “one of the greatest pieces of fraud, I repeat the word `fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.” That was the theory which five on the Court adopted. As one author noted, “Five Justices on the Supreme Court were able to reinterpret, by some standards radically, the Second Amendment’s right to keep and bear arms as a personal, not a collective right in Heller.”

At the wall separating church and state, the bloc of five chipped steadily away: Christian crosses in public parks, Federal tax credits funding religious schools, Christian prayer at legislative meetings. As constitutional scholar Erwin Chemerinsky summed it up: “Rather than obliterating the wall separating church and state all at once, the Roberts Court’s opinions are dismantling it brick by brick.”

Four decades ago, Roe v. Wade recognized a wall of privacy in the Constitution between the government and a woman’s private medical decisions. In this context, the court has long required State laws barring late-term abortions to have an exception to protect the health of the mother. Then the Roberts Court upheld a ban on the procedure that had no exception for the health of the mother. As Justice Ginsburg stated in her dissent: “[T]he Act and the Court’s defense of it cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court –and with increasing comprehension of its centrality to women’s lives.”

If the conservative win rate in the Court is striking, the corporate one is even more so. A recent study found the Roberts Court more favorable to business interests than its predecessors, with all five members of the recent rightwing bloc among the top 10 most business-friendly judges in the last 65 years. Chief Justice Roberts was No. 1 and Justice Alito No. 2.

Studies showed the Roberts Court following the legal position of the U.S. Chamber of Commerce, which is a de facto organ of the National Republican Party, 69 percent of the time, up from 56 percent during the Rehnquist Court and 43 percent during the Burger Court . Connect the dots. The Republicans are the party of the corporations, the judges are the appointees of the Republicans, and the judges are delivering for the corporations. It is being done in plain view.

Many Chamber victories were significant, such as making employment discrimination harder to prove, letting manufacturers and distributors fix minimum prices for retail goods, letting mutual funds advisers include misstatements made by others in the documents they prepare for investors, and even Hobby Lobby, where the Court put the religious rights of corporate entities over the rights of employees.

Big corporations hate being hauled into court and having to face juries, and the five Republican appointees protected them by raising pleading standards for victims, letting companies push disputes into corporate-favored arbitration, restricting Americans’ ability to press cases of large-scale wrongdoing in class actions, making it more difficult for workers to hold employers accountable for workplace harassment, and making it harder for consumers with serious side effects to sue the drug companies.

Now before the Court is a case the five-man bloc has pursued for some time. It was expected that the five would use it to deal a significant blow to the political and economic clout of unions, a great boon for the big corporations. It also looked like the five were teeing up for the fossil fuel industry, a big victory against the President’s Clean Power Plan.

There was a lot at stake in that fifth vote. There was a lot that was delivered because of that fifth vote. At 4 to 4, the circuit court decision below stands. At 4 to 4, the challenged regulation ordinarily prevails.

I will close with the big sockdolager: Citizens United. It was once the opinion of the U.S. Supreme Court that “to subject the state governments to the combined capital of wealthy corporations [would] produce universal corruption.”

No more. The five judges behind Citizens United opened the floodgates for unlimited anonymous corporate spending in elections. They found that corporate corruption of elections was near impossible, and they caused a tsunami of slime–to use a phrase that I borrow–that we have seen in recent election cycles. Such a brute role for big corporations in our American Government would shock the Founding Fathers who foresaw no important role in our Republic for the corporations of the time.

To unleash that corporate power in our elections, the five conservative justices had to go through some remarkable contortions. They had to reverse previous decisions where the Court had said the opposite. They had to make up facts that were then predictably and are now demonstrably wrong. They had to create a make-believe world of independence and transparency in election spending that present experience belies, and they had to maneuver their own judicial procedures to forestall a factual record belying the facts they were making up.

It was a dirty business with a lot of signs of intent, and it has produced evil results that we live with every day. All of this–Republican election advantage, corporate welfare, the conservative social agenda–is because the activists, corporatists, and rightwing bloc had a fifth vote. That bloc of five did more for the far right, for the Republican Party, and for its corporate backers than all of the Republicans in the House and Senate have been able to do. They delivered. Now it is 4 to 4 and that advantage is gone; hence the panic on the Republican side; hence the departure from plain constitutional text.

Imagine any other constitutional duty of the President that he failed to do that would not cause uproar and outrage. There would be nobody on the floor here because everybody would have run off to FOX News to get their talking headshot in and talk about what a terrible thing the President had done by violating his constitutional duty. Well, the President has a constitutional duty–he shall nominate.

They are in a political pickle, but the Constitution doesn’t care about the politics. From the Constitution’s point of view, the politics are just too darn bad. The Constitution directs the President to make the appointment, and he should do his job. The Constitution gives the Senate the job of advice and consent to the President’s nominee. We should do our job just as the Constitution provides.

I yield the floor.