Ben Buchwalter


See No Evil, Read No Evil, Dump Your Evil: 5 Troubling SCOTUS Rulings
November 22, 2009, 5:33 pm
Filed under: Crime and Justice, Mother Jones, Supreme Court | Tags: ,

June 30, 2009

The Supreme Court’s 2008 term ended in June with a flurry of decisions that emphasized the Court’s ideological rift. Five of the rulings were particularly troubling for their denial of prisoners’ rights, approval of environmental hazards, and corporate favoritism. I summarized the issues and rulings behind the five most troubling SCOTUS rulings of the 2008 term. One tricky decision was Ashcroft v. Iqbal:

The Upshot: In a 5-4 decision, the Court ruled that Javaid Iqbal, one of the hundreds of Muslims rounded up after 9/11 and allegedly subjected to harsh treatment, could not challenge his detention in Court because he could not prove he was mistreated. In effect, the ruling increased the pleading requirements for prisoners, which could make it more difficult for prisoners to bring civil rights complaints to court.

See no evil: In the majority opinion, Justice Kennedy wrote that a prison supervisor is not required to challenge discriminatory practices based on the “mere knowledge of his subordinate’s discriminatory” actions.



Racial Terms as Alphabet Soup

I think we can all agree that it’s a little odd how steamed honkies like Pat Buchanan and Rush Limbaugh are getting that President Obama nominated a Hispanic woman to the Supreme Court. As a white man, I can attest that it is terrifying that we not only have a black President, but he wants to increase the representation of women and minorities throughout government! Can you imagine anything worse?

The most frustrating aspect of the racially motivated pushback against Sotomayor is the way that some of these wingnuts define terms like “affirmative action” and “reverse descrimination.”

Today on MSNBC, Pat Buchanan told Norah O’Donnell that the pick amounted to nothing more than affirmative action because the Obama administration hinted throughout the process that they were looking for someone who would make the Court more representative of the country as a whole. See the video:

I guess that brings up the question of how we define affirmative action. And if it was affirmative action, is that a problem? It’s definitely possible, though unlikely, that there were no white men qualified for the Supreme Court. But the overarching fact here is that the Supreme Court, currently with one woman (Ginsburg) and one minority (Thomas) does not represent the American people as a whole. So in my view, adding a female voice is valuable. And adding a Hispanic voice is valuable. And if that is affirmative action, I am fine with that. But I don’t think it is. Sotomayor is a great pick because in addition to being incredibly smart and having a thick resume, her confirmation will bring the Court much closer to being representative of its constituents. That is a qualification, not a crutch.

Rush Limbaugh was also (not surprisingly) spewing some crazy Tuesday. On his radio show, Limbaugh called Sotomayor a “hack,” a “racist,” and a “reverse racist.” Matt Yglesias tries to understand Limbaugh’s outrage and apparent confusion about the difference between racism and reverse racism.

Being a “reverse racist” can’t be similar to being a “racist,” it needs to be the reverse of being a racist. Limbaugh clearly just thinks Sotomayor is a racist. She hates white people. For a Latina to hate white people isn’t “reverse” racism, it’s racism. Reverse racism would be if you had a white person who hates white people. It would be like racism, where you hate people of other races, but in reverse.

It seems there is a war brewing over Sotomayor between ultra-conservatives in the Republican party and GOPers who actually want to get something done. It will be interesting to see where the battle lines a drawn and how far this racial rhetoric will go. So far, the media director for the Republican National Committee, who will supposedly be part of the efforts to rebrand the GOP, has enlisted on the ultra-conservative side… through Twitter.



Soaring Toward Confirmation?
May 27, 2009, 2:02 am
Filed under: 2010 and 2012, Republicans, Supreme Court

My first reaction to Obama’s decision to nominate Sonia Sotomayor to fill Justice David Souter’s Supreme Court seat was “this guy has balls.” Conservatives consider her very liberal (though she’s actually not) and she has been on record saying that federal judges make policy, which some could say is a clear indication that she would be an activist judge.

But so far the nomination looks like  a clear win for Team Obama.  Oddly enough, if a white man with the same voting record who had made such comments on the record were up for the spot, he would probably face more opposition. But the GOP is doing so poorly with women and minorities, that they might not be able to risk opposing Sotomayor in fear that those demographics would abandon them entirely in 2010 and 2012.

Brian Beutler notes that none of Obama’s appointments have so far been successfully blocked by Republicans. That reasoning is a little sketchy because even though Daschle and Richardson withdrew for “personal reasons,” it seems pretty well accepted that they would have faced long confirmation battles and damaged Obama’s political momentum. But Brian’s point emphasizes the fact that Obama remains an incredibly popular President who has yet to make a serious mistake. Opposing his nominee would be politically dangerous no matter who it was.

I was definitely gearing up for an all out offensive from the GOP against Obama’s SCOTUS nominee, but it looks like Team Obama made another politically shrewd choice by daring the GOP oppose Sotomayor. It’s also worth noting that seven current Republican Senators voted to confirm Sotomayor when she was nominated by Bill Clinton as a federal judge in 1998.  So if all the Democrats support her in addition to those seven Senators who liked her a decade ago, she would be easily above the 60 votes needed to avoid a filibuster. So hard-line Conservatives in congress could have little to no sway over Sotomayor’s confirmation.

So unless we learn that Sotomayor once killed a man or is secretly a terrorist, it seems that we will be talking about Justice Sotomayor, the first Hispanic Supreme Court Justice, before long.



Political Capital and SCOTUS Nominees
May 8, 2009, 12:53 pm
Filed under: Supreme Court | Tags: , ,

Ezra Klein:

I never understand the fuss over Supreme Court nominations. The president holds all the power. That’s even more true if his party controls the Senate. So when conservative groups “concede that they have little chance of derailing Obama’s choice, barring a scandal,” what does it mean? If they derail Obama’s choice, he’ll just make another choice. It’s not like defeating his first nominee would make him lose a turn, or let Mitch McConnell choose the next candidate. Bush, for instance, got beat on Harriett Miers, and then nominated a more conservative justice in her stead. The hubbub is baffling. The opposition can’t win. They can only delay losing.

I think Klein is choosing to ignore a large portion of the politics behind a Supreme Court nomination. His best point is that Harriett Miers was replaced by even more conservative justices. But – if I remember correctly – people did not oppose to Miers because she was a conservative. They opposed her because she had no relevant experience besides as a Bush lackey. And I think most people agree that Roberts and Alito, though very conservative, both adhere to a clear judicial philosophy.

Obama remains very popular. And he needs to be popular to accomplish his ambitious agenda, which includes health care reform, cracking down on offshore tax havens, and closing Gitmo. It would be a serious shame to waste that political capital on a long drawn out confirmation battle.

I’m not saying that Obama should choose a nominee based on how easily he or she will be confirmed. I’m also not saying that the crazy MSM coverage of potential nominees is justified. But his vetting team should keep in mind that the Democrats really only need a few moderate votes in order to pass the 60 vote margin that would basically guarantee the nominee’s confirmation.

So appoint an exciting nominee that will breathe some life into the Constitution and preserve  much-needed rights for women and minorities. But Obama should not be flippant in the pursuit of this candidate. Sure, Obama would get another chance if conservatives cut down his first choice. But the political impact of this will extend much past the Supreme Court confirmation battle. It could seriously impact the level of political capital that Obama carries through the year hoping to implement other essential policies.



A Modern Court For Modern Dudes and Dudettes

Of the three branches of government, the Judicial is the only one that is structurally designed to resist change. Allowing Supreme Court Justices life tenures, for example, result in outdated bias toward modern issues. After David Breyer was appointed, the Court didn’t see a change for more than ten years, when John Roberts was confirmed as Chief Justice. That’s a very long time for a branch of government to remain static.

We get to pick a new President every four years, and Senators and Congressmen are rotated out regularly. Representatives in the House have short terms for the purpose of getting new ideas in there more quickly than in the Senate. So if change is important in Congress, why not in the judicial branch?

The Supreme Court should undergo two changes to become more diverse and representative. First, Matt Yglesias says that the Court should do away with lifelong tenure and set up term limits of 18 years. Under this system, a new judge would be appointed every two years, ensuring that every President appointed at least two judges. This way, the Court’s ideological composition would mirror the public’s ideology that elected the Presidents.

As Yglesias wrote in a similar post last fall, keeping the current system is “just a pure example of status quo bias.

There is much speculation about who President Obama will appoint to fill David Souter’s seat on the Supreme Court. Some say that the pick should adhere to a strict interpretation of the Constitution. Doing so would further show the Supreme Court to be an institution ruthlessly opposed to change. Maybe we should view the Constitution more like most religious Americans view the Bible. It has some great lessons about how we should live our lives, but we need to use it as a guide rather than a rulebook. As Jed Bartlett famously pointed out in the West Wing, some rules in the Bible are crazy and make no sense in our modern time.

Sonia Sotomayor, the appeals court judge rumored to be a front runner for the appointment, has been slammed by conservative cable news shows all week for saying that courts of appeal are “where policy is made.” Many view this as a tacit approval of activist judges and a sign that Sotomayor would dominate the court as an outspoken liberal.

Sotomayor’s statement was definitely poorly worded, but I’m not sure the sentiment is wrong. Schools might not have become integrated as quickly if the Supreme Court did not make the Brown v. Board of Education precedent. That led directly to policy changes that dramatically helped the Civil Rights Movement. The Court used the spirit of the Constitution to extend human rights and affect policy, not make it.

A more inclusive judicial philosophy and the implementation of term limits could greatly improve the Supreme Court’s accessibility and representation. And though these changes aren’t likely (at all), I hope that Obama will appoint someone like Sotomayor to the court, who will apply the Constitution’s lessons to modern issues like gay marriage and abortion.



Best Fit Justice
May 4, 2009, 4:23 pm
Filed under: General Politics, Supreme Court | Tags: , ,

Ezra Klein brings up a pretty good point about the debate going on right now over who Obama should appoint to the Supreme Court. So often, when lawmakers are asked what kinds of candidates Obama should consider, they respond that past experience should be high on the list. The success or failure of past judges, though, is rarely related to the experience they had before they joined the Court.

Instead, liberals will view Justices as successful if they fight for the right to privacy and erode some of the most outdated aspects of our legal system that harm minorities and women. Conservatives, on the other hand, will respect judges with a strict interpretation of the Constitution.

Obama seems to understand this. In his statement about Souter’s retirement, he said he would look for justices with a “quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving as just decisions and outcomes.”

So, as Klein points out, Obama should not look for the most experienced judge, but rather the best fit for a 21st century court. It’s like applying to college. Aiming for an Ivy League school will do little for your education if it is not the best fit and you cannot do the work.

This argument suggests that Obama should, as many have already argued, appoint a woman, an African American or a Hispanic to the Supreme Court, even if there are some white men out there who are “better qualified.”

Klein concludes that the Supreme Court

is responsible for a country that’s 51 percent female and whose law graduates are 48 percent female. Its highest profile cases revolve exclusively around things that happen in a woman’s body. If we were aware of those facts and were stocking the Court from scratch, there is no doubt that we would strive for more gender balance.

Viewed from that perspective, the situation clarifies considerably. The reason white men are disadvantaged in this nomination process is pretty simple: They are not, right now, what the Court needs. They are not the best candidates for the job. This has never been a search for the right brain in the right vat. But if Obama does add a bit of gender diversity to the Court, he’ll be doing something we’ve not seen in some time: making his choice at least partly on the needs of the institution rather than basing his decision solely on the interests of his party.



Term Limits for Supreme Court Justices
February 11, 2009, 5:25 pm
Filed under: Supreme Court | Tags:

Matt Yglesias is on to something. Supreme Court Justices should serve long staggered terms (he suggests 18 years, which would assure a vacancy every 2 years). Otherwise, the Court is “just a pure example of status quo bias.”

If we lived in a country where the nine justices of the Supreme Court were serving staggered eighteen year terms (i.e., one new justice every two years) absolutely nobody would be saying “if only justices stayed on the bench until death!” The point of life tenure is to give the judges independence from short-term political considerations. But a long fixed term, combined with a reasonable pension, completely meets that goal and avoids the high level of arbitrariness associated with the current system along with the macabre spectacle of wondering when people will die and the goofy incentives to appoint justices who are as young as possible.