SOURCE: AP/Keith Srakocic

Chief Justice John Roberts addresses the 2010 Judicial Conference of the District of Columbia Circuit, Friday, June 11, 2010. During his 2005 confirmation hearing, he said, “Judges are not politicians. They cannot promise to do certain things in exchange for votes.” His lofty promise of judicial independence is threatened when judges must campaign the way other politicians do and must rely on interest groups to ensure their political futures.

Endnotes and citations are available in the PDF version of this issue brief.

This report is the third in a series on different policies that could help mitigate the influence of corporate campaign cash in judicial elections. The reports are intended for advocates or legislators who want to ensure our justice system works for everyone, not just those with enough money to donate.

As the amount of money donated to judicial campaigns has exploded in recent elections, the influence of campaign cash on the judiciary has become a more urgent problem. Candidates in state supreme court races from 2000 to 2009 raised around $211 million—two and a half times more than in the previous decade. Conflicts of interest have arisen as special interests and parties before high courts have spent money to influence elections to those courts. The insurance giant State Farm, for example, was facing a $1 billion verdict in a case pending before the Illinois Supreme Court in 2004. The plaintiffs in that case allege that State Farm asked a lower court judge to run for a seat on the high court, organized his campaign, and spent millions to elect him. After the justice took his seat on the bench, he voted to overturn the $1 billion verdict.

To curb the influence of special interests in the selection of judges, many reform advocates have called for more states to choose judges through merit-selection systems, used in some form by two-thirds of the states to select judges. In those systems a nominating commission composes a list of potential judicial candidates from which the governor chooses a nominee. The state senate must confirm the choice in some states. The commissions use a wide range of criteria to make their recommendations. Connecticut law, for example, requires the nominating commissions to consider “the legal ability, competence, integrity, character and temperament of such judge and any other relevant information.”

Most merit-selection systems require appointed judges to subsequently face voters in unopposed retention elections in which voters are asked whether the judge should remain on the bench. Historically, retention elections saw very little campaigning and hardly any campaign contributions. Conservative interests groups—usually angered by one or two high-profile cases—are now mounting unprecedented campaigns opposing retention elections in Iowa, Florida, and possibly in Indiana and Arizona. As a consequence, retention elections could join the trend of expensive and politicized judicial elections.

This brief argues that, despite this risk, merit selection and retention elections offer a far better alternative to contested elections. Judges must be independent from political pressure so they can vindicate constitutional rights without fear of political backlash. The judiciary is the only institution that can remedy violations of the constitution by the other branches of government. At the first step of the process, merit selection frees a potential judge from political influence by focusing on his or her qualifications, not on the ability to make deals with legislators or rake in campaign contributions. Retention elections, the second step of the process, subject judges to much less political pressure than contested elections and offer greater judicial independence. Although some recent retention elections have become politicized, these systems can provide the public with unbiased, neutral information on a judge’s qualifications and record. This allows voters to focus on merit and not on one or two politicized, high-profile cases.

The very name—merit selection—implies that the system produces higher-quality judges, but, admittedly, measuring a judge’s “merit” is a difficult task. Merit-selection commissions have a wide range of information to evaluate potential judges, but voters in contested elections usually lack meaningful information on judicial candidates, except for what they glean from sound bites and advertisements.

Critics argue merit-selection commissions are undemocratic and often do not share the values of a state’s population. Opponents are particularly critical of systems in which state bar associations appoint some members of the commissions. Some conservatives argue this practice leads to judges who are too liberal.

To address these perceived deficiencies, conservative legislators have sought to impose greater control over judges and the merit-selection nominating process. Missouri lawmakers have placed a referendum on the 2012 ballot that would give the governor more appointees on the nominating commission, and conservative legislators in Florida are giving voters the chance to require senate confirmation of a judicial nominee. Some politicians have gone much further to “rein in” judges. New Hampshire legislators, for example, introduced a bill that would essentially end judges’ power to rule laws unconstitutional. Supporters of merit selection warn that conservative efforts to chip away at the process will culminate in a push for contested elections.

At the same time, recent efforts to institute merit-selection systems have stalled. Voters in a 2010 Nevada election rejected a referendum to use merit selection, even after a Los Angeles Times story exposed judges being swayed by campaign contributions in a “style of wide-open, frontier justice that veers out of control across ethical, if not legal, boundaries.” Likewise, a merit-selection bill recently stalled in the Pennsylvania legislature. Yet a poll from merit-selection advocates found that voters in Pennsylvania have little information on which to base their votes for judges, and once respondents were given information on the merit-selection system, a sizable majority liked the idea.

Some critics of judges chosen through merit selection argue the judges are “activist”— usually a code word for liberal. The term suggests that judges are making policy and doing so in line with their own liberal views. At times, of course, courts do have to make policy decisions because the law is ambiguous, but that is clearly not their primary role. Judges are rarely making up law from whole cloth because their successors or other courts would call them on it. Some state courts do build on judge-made common law. Many states, however, have codified entire areas of common law, and even if they have not, legislatures can always override judge-made common law.

Judges often suffer the strongest political backlash when they settle a conflict between a constitutional rule and a statute or referendum. As defenders of constitutional principles, high court justices must be free to make unpopular decisions that protect the rights of individuals.

Constitutions are composed of timeless principles that govern the relationship between branches of government and between a government and its citizens. These principles are approved by super majorities (such as two-thirds or three-quarters) of an electorate or its representatives. Because super majorities approve constitutional principles, these laws trump ordinary statutes or referenda that are approved by a simple majority of representatives or voters. That’s why, unlike the political branches of government, independence is more critical than accountability for the judiciary.

Some judges, even in states with retention elections, have faced a political backlash for rulings that protected the constitutional rights of same-sex couples, women, religious minorities, or unpopular groups such as criminals. In state supreme courts, this often means ruling on the constitutionality of statutes or citizen-sponsored referenda on hot-button social issues such as same-sex marriage. The targets of many of these statutes and referenda are often politically powerless, so the judicial branch is the only place where they can turn for protection of their rights.

An independent judiciary is crucial to the idea of checks and balances

More than any other institution, judges have to keep the government true to its constitution. The framers of the U.S. Constitution and state constitutions established governments with checks and balances. The executive, legislative, and judicial branches have distinct roles. In general, the legislatures make the laws; the executive branches enforce them; and courts interpret the laws, including constitutions. A judiciary free from political constraints is crucial to this system of separation of powers. Without this independence, judges are just politicians in black robes.

In the Federalist Papers, Alexander Hamilton affirmed the judiciary’s power to rule statutes unconstitutional and described the judiciary as the only institution that can ensure the legislature does not violate the Constitution. Hamilton said that unless courts can rule statutes unconstitutional, “all the reservations of particular rights or privileges would amount to nothing.”

Judges interpret constitutions and define the boundaries of individual rights and rules that prohibit the government from taking certain actions. This sometimes requires courts to strike down statutes that violate constitutional rights, even though the laws may be popular with voters. As Hamilton explained:

[I]t is not to be inferred … that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions.

In other words, just because a statute is popular does not mean it is constitutional. Courts must be free from political pressure in order to protect constitutional rights.

The justices of the Iowa Supreme Court struck down a statute limiting marriage to heterosexual couples in a 2009 case. The court unanimously ruled that denying same-sex couples the right to marry violates the Iowa and U.S. constitutions. In its opinion, the court noted that, “The idea that courts, free from the political influences in the other two branches of government, are better suited to protect individual rights was recognized at the time our Iowa Constitution was formed.”

Though the Iowan justices had never before been compelled to raise campaign funds, the ruling spurred Christian conservative groups that are opposed to the decision to mount a campaign to unseat the justices in the 2010 retention election—solely because of the ruling on same-sex marriage. Conservative political groups from outside Iowa spent nearly $1 million attacking the justices.

All three justices lost their seats in 2010, but polling suggests a fourth justice may fare better this year. One Iowan who attended a recent rally against the justice said, “I don’t think judges should have the right to decide for us on the marriage issue or other constitutional issues.” When voters argue judges should not have the power to decide constitutional issues, there is a drastic misunderstanding of the role of the judicial branch.

Iowa’s experience shows that retention elections can become politicized. But uncontested elections are less susceptible to political pressure than contested elections. In a two-person race, a challenger will likely characterize an incumbent judge’s rulings in a certain way and detail how his or her own rulings would be different and, presumably, better. A judge in a retention election, however, only needs to defend his or her record and qualifications. Voters in a merit-selection system never actually get to choose a judge; they just decide whether to throw him or her out of office. Merit-selection systems can be structured to provide voters with useful information or evaluations based on neutral criteria, and such
systems make judges even less susceptible to political pressure.

If the judiciary becomes another political branch responsive to political pressure, then there would be no branch of government that could check the power of legislatures or executives when they infringe on the constitutional rights of individuals. Retired U.S. Supreme Court Justice John Paul Stevens warned that, “Disciplining judges for making an unpopular decision can only undermine their duty to apply the law impartially.” Judges who face contested elections may feel more pressure to avoid striking down laws that are popular with voters and therefore cannot protect the constitutional rights of individuals. These rights are meaningless if they cannot be vindicated.

Judges as politicians

Judges should not be forced to act like politicians to keep their jobs. Legislators have to raise funds for their re-election campaigns, and citizens are not surprised when legislators are responsive to their campaign contributors. Judges, however, should not be beholden to election funders in the same manner. The judiciary should be beyond the influence of special interests.

The drafters of the U.S. Constitution recognized that political considerations or campaign contributors should not be able to influence judges. They established a system in which federal judges are subject to political processes when they are nominated by the president and confirmed by the U.S. Senate, but they serve for life once confirmed. Current Chief Justice John Roberts, during his 2005 confirmation hearing, said that, “Judges are not politicians. They cannot promise to do certain things in exchange for votes.”

Chief Justice Roberts’ lofty promise of judicial independence is threatened when judges must campaign the way other politicians do and must rely on interest groups to ensure their political futures. Retired U.S. Supreme Court Justice Sandra Day O’Connor said that, “When you enter one of these courtrooms, the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law.”

In August 2012 the Center for American Progress issued a report on how campaign donations from big business have come to dominate judicial elections. The states that have seen the most campaign cash now have high courts dominated by judges who favor corporations over individual citizens. In states with contested elections, some Democratic judges count on labor unions or trial lawyers for campaign cash or “get out the vote” operations. Republicans often look to corporations and organizations funded by big business for campaign money. As these so-called big-money judicial elections spread to more states, these judicial candidates will come to depend on these same interest groups. In these states, those who sue corporations—such as injured employees or consumers who have been scammed—are finding it much more difficult to obtain real justice from these courts.

The CAP report demonstrated how contested judicial elections open the door for special interest groups to influence the law. Groups that desire a change in the law can seek out judges who will deliver that change and then spend money to get those judges elected. The insurance industry in Ohio, for example, was dissatisfied with several rulings against insurers in the late 1990s and donated money to elect judges who promptly reversed those rulings once in office. In a merit-selection system, special interests lose the chance to bolster candidates who favor their agenda.

Special interests influence contested elections

Contested races affect judicial behavior in other ways, as well. A court’s role as protector of constitutional rights sometimes requires it to rule for criminal defendants, even if the defendant’s actual guilt is not in doubt. Studies have found that judges facing imminent elections are less likely to overturn criminal convictions. A 2009 study found that this tendency was highest in partisan elections and not as significant in retention elections. The vindication of a defendant’s rights should not depend on a judge’s political considerations.

Criminal cases provide fodder for special interests running attack ads against judges. In a 2006 race for the Washington Supreme Court, an ad featured a grieving mother criticizing an incumbent judge for a decision that “let my son’s killer walk free after serving less than a third of his murder sentence. You could have a convicted murderer released … next door and you wouldn’t even know it.” The ad was paid for by Americans Tired of Lawsuit Abuse, a pro-tort-reform group that has nothing to do with criminal law.

When a West Virginia coal executive spent a huge sum of money to influence the 2004 election to the West Virginia Supreme Court, he poured his money into a group that attacked the judge for allegedly granting probation to a child abuser. These ads did not mention the coal company’s $50 million verdict that was pending before the court, but the U.S. Supreme Court took note of this conflict of interest when it ruled that the judge who benefited from the money should have recused himself. Though they have no interest in crime, special interest groups use criminal cases to scare citizens into voting for judges who support their particular agenda.

Some of the same interest groups that influence judicial elections have opposed merit-selection initiatives. In Pennsylvania, for example, pro-life groups opposed a statute that would have replaced the state’s partisan judicial elections with a merit-selection system. The proposed constitutional amendment would have created a commission to produce a list of nominees and allow the governor, with the state Senate’s consent, to appoint the judges on the state’s appellate courts. Pro-life and conservative religious groups have donated hundreds of thousands of dollars to Pennsylvanian judicial candidates in recent years, and in June 2012 they defeated a bill that would have lessened their ability to influence the law.

Merit selection reduces the opportunities for special interests to influence courts. Advocates point out that merit selection can “minimize political influence by eliminating the need for candidates to raise funds, advertise, and make campaign promises, all of which can compromise judicial independence.” Retention elections also subject judges to less political pressure than contested elections.

Many judges argue that merit selection leads to better-qualified judges. One organization of civil defense lawyers warns that contested elections might prevent the most qualified lawyers from seeking seats on the bench, saying that, “Otherwise qualified individuals may opt not to run for fear of losing to a judge before whom future cases must be tried.”

Although empirical evidence is hard to come by, a recent study from conservative scholars used the number of times a judge’s opinion was cited by other jurisdictions as an indicator of quality. By this measure, the authors found that appointed judges outperformed elected judges. The authors posit that, “A system that selects for judges skilled at electioneering and politicking does not also necessarily select for judges skilled at authoring high quality legal opinions.”

Structuring merit-selection systems to ensure independence

Critics of merit selection argue the system is undemocratic. They claim that unelected nominating commissions should not have so much authority over judicial selection. These critics often fail to recognize that judicial independence—not democratic accountability—is the most important consideration in deciding how to select judges. The framers of the U.S. Constitution and the drafters of early state constitutions established systems in which judges are completely free from political accountability once they are appointed.

Some conservatives, acknowledging the value of judicial independence but decrying a lack of democracy in merit selection, argue for a system similar to the federal model—gubernatorial appointment (without a nominating commission), state Senate confirmation, and long terms. This so-called Washington model would present its own problems, however, with politics being present at the selection stage. The process would not be as transparent as modern merit-selection systems, and would open the door to politicized appointments, as we see in the federal system today, appointments can lead to gridlock if the executive and legislative branches are controlled by different political parties.

The history of merit selection

Merit selection emerged after states saw gubernatorial appointments tarnished by allegations of partisanship and political corruption. The first system was approved by Missouri voters in 1940 after the state’s courts had become politicized and subject to control by a powerful political machine. The Missouri plan, as it came to be known, was adopted in Kansas after a 1956 scandal involving then-Gov. Fred Hall, who had lost the Republican primary. Gov. Hall’s friend, the chief justice of the state supreme court, resigned his position at the same time Gov. Hall resigned as governor. The lieutenant governor assumed office for the last few days of the term, and his single official act was to appoint Gov. Hall to the empty seat on the Kansas Supreme Court.

In 1970 a Florida governor appointed a state supreme court justice who was charged with selling drugs and who became a fugitive from the law. The then-president of the Florida state bar said the governor ignored the bar’s background check, which had raised red flags. Florida amended its constitution to institute a merit-selection system a few years after the scandal, but state legislators are fighting to establish a system that would again give politicians more control.

Merit selection frees judges from political infighting and shady deal-making. Opponents of merit selection are particularly critical, however, of systems that allow state bar associations to appoint some members of nominating commissions. Conservative critics argue bar associations are often more liberal than their state’s citizens. A recent study found that merit-selection systems in Missouri and Tennessee resulted in judges that were more liberal than the majority of citizens in those states. The author of the study acknowledged, however, that the governors of the two states and the elected officials who appointed some commission members were overwhelmingly Democrats during the time period studied. Other scholars have found mixed results in asking whether state bar associations skew left.

Studies that focus on the outcomes—not the processes—shed little light on the actual deliberations of the commissions. Earlier this year, the American Judicature Society conducted a broad survey of 487 nominating-commission members in 30 states, and the results cast doubt on the argument that merit selection is a politicized process. The survey found that commission members overwhelmingly reject the use of political considerations in their deliberations. More than 73 percent of the commission members said party affiliation is not considered during their deliberations. A majority said they were not even aware of candidates’ party affiliations.

The survey did find that Democrats outnumber Republicans in the total number of commission members, but this discrepancy was much more pronounced for members appointed by governors. This suggests that any partisan imbalance is more a result of gubernatorial appointment than of the role of state bar associations.

A survey of older research suggests that a rule prohibiting a partisan imbalance on the nominating commissions can reduce the influence of political considerations. This reform could address any imbalance on the nominating commissions without subjecting judicial candidates to more influence from the political branches of government.

Ensuring legitimacy in the eyes of the public

The U.S. Chamber Institute of Legal Reform argues that state bars should recommend lawyers to serve on the commissions, but governors should actually appoint them. New York has a requisite number of attorneys on its nominating commissions, but they are all chosen by elected officials and not by the state bar. In Arizona the state bar recommends the attorney commissioners, but the governor actually appoints them.

Merit-selection systems are not designed to be accountable to politicians or the public, because a judge’s role as a defender of the Constitution requires him or her to be above politics. That being said, many states have reformed their merit-selection processes to ensure that citizens perceive them as legitimate and unbiased.

Justice O’Connor offers Arizona’s system as a model. “In that state, nominating commissions are dominated by non-lawyers, and their meetings are open. Candidates’ applications are available online, and the public is invited to comment,” she said. More transparency and lay-citizen participation can inspire confidence in the process. The American Judicature Society recommends that merit-selection systems include written
ethical and procedural rules. Massachusetts, for example, has strict standards for preventing any conflicts of interest with applicants.

Nominating commissions must have clear and consistent criteria on which to assess candidates. In New York the commission is governed by an executive order, which requires it to evaluate a candidate based on his or her “integrity, independence, intellect, judgment, temperament and experience.” Most of the constitutional provisions establishing nominating commissions do not specify the criteria that govern them. While governors have issued executive orders filling in the blanks, legislatures can provide more continuity by passing statutes that establish criteria for assessing a candidate’s merit.

Many states that use merit selection appoint their judges for long terms—between 10 years and 12 years—before their first retention elections. The longer the term, the more independence the judge enjoys from political influence because judges will less often feel pressure to ensure their decisions are popular.

Giving voters useful information

With retention elections becoming more politicized, advocates of merit selection argue that voters should not make their decisions based on a single high-profile decision by a judge. Instead, advocates and state bar associations argue that impartiality, an understanding of the law, and other values are the criteria voters should use to make their decisions in a retention election. The Florida Bar Association, for example, asks citizens to base their votes on a judge’s “legal abilities, temperament, and commitment to follow the law and decide cases impartially.”

Surveys have shown that voters often do not feel knowledgeable about judicial candidates. It is therefore asking a lot for voters to seek out and find information on the judges’ qualifications, temperament, and legal abilities. If a voter is aware of a high-profile decision from his or her state supreme court, how can that voter put aside his or her views on that case and focus solely on merit? Retention elections must be accompanied by evaluations or voter guides that give the public useful information—a broad range of material beyond just one or two cases that received media attention.

Judicial performance evaluations have proven to be very useful for voters. These evaluations can promote meaningful accountability for judges by imparting knowledge about the judge’s performance in office. Supporters point out that judicial performance evaluations are “process-oriented, not outcome-oriented.” Anonymous surveys are given to attorneys, jurors, and others who watch judges as they work, and more comprehensive programs include information on case-management statics, public comments, and interviews with the judges. New Mexico goes so far as to seek input from “court staff, other appellate judges, trial court judges whose cases have been appealed, the judge’s current and former law clerks, and law professors.”

The Defense Research Institute, an organization of civil defense attorneys, says judicial performance evaluations should be structured to enable a judge’s self-improvement and a voter’s informed decision. The institute also says the evaluations should “educate the public that specific case outcome should not be the determinative factor in judicial election or retention.” The American Bar Association offers detailed model criteria for assessing a judge’s legal abilities, integrity/impartiality, communication skills, professionalism/temperament, and administrative capacity.

North Carolina, a state that holds nonpartisan contested elections, offers citizens a voter guide, which describes the candidates’ background. Voters are informed of the candidates’ experience, education, and endorsements. The candidates are also allowed to submit statements to be included in the guide.

As recent campaigns have shown, retention elections are not perfect and do not provide judges with complete independence from political considerations. Retention elections are vastly preferable to contested elections, though, and providing voters with relevant, unbiased information can keep the focus on a judge’s merit, not on his or her views on a single high-profile issue. Further, voters in retention elections make their decisions after a judge has been on the bench for at least one term, giving voters a track record to consider before making a decision.

Conclusion

Constitutional principles are supposed to be above the petty politics of legislatures. When a statute or referendum conflicts with the constitution, a court must enforce constitutional values. It is often a thankless task that judges carry out, striking down the will of the people manifested in statutes and referenda. But judges are the only institutions in place to protect our constitutions and the individual rights enshrined therein.

If judges are politically accountable, they cannot perform this crucial function. We need institutions in our society that can check the whims of the citizenry when they are not in accordance with the timeless principles laid down by the leaders who founded these states and our country.

There are times when it might be politically popular for politicians to target certain groups—those that are in the minority, naturally, since attacking a majority of citizens would likely not lead to electoral victory. This is especially true in tough economic times, when politicians have used groups such as immigrants as scapegoats. Courts must be able to stop legislatures and governors who cross the line. A majority of citizens might feel satisfied when elected judges avoid striking down popular statutes related to certain hot-button issues, but a constitution suffers when there is no branch of government to ensure the laws conform to it. If the courts do not protect individual rights from government encroachment, no one can.

Unfortunately, judicial independence is increasingly threatened by politicized retention elections. In an eerily prescient 2008 law review article, Justice Mark Cady of the Iowa Supreme Court warns of this very danger. Cady remarked:

Just as the personal views of a judge should not drive the judicial decision-making process, the personal views of the voter also should not be a focus in retention elections. Both views are inappropriate as a driving mechanism for judicial decisions because no individual’s view—either judge or voter—is above the law.

Justice Cady points out that states that use retention elections can provide useful information to voters, allowing them to make decisions based on a broad understanding of a judge’s role.

Despite Iowa’s experience in 2010, the question of whether a judge should be retained is less likely to be politicized than a choice between two candidates with divergent views. Voters in retention elections are not asked to replace a candidate with a specific alternative, and special interests cannot recruit a candidate they believe will serve their agenda. If judicial independence is paramount, the question of whether to vote a judge off the bench for protecting the rights of same-sex couples is preferable to choosing between a judge with a certain view on same-sex marriage and a challenger with an opposite view.

Not surprisingly, conservative critics of merit selection like to quote the framers of the U.S. Constitution on the need for democratic legitimacy. Those with an affinity for the framers must remember that they did not favor judicial elections, which were not introduced for state supreme courts until many decades later. On the contrary, the framers of the U.S. Constitution set up a federal system that completely insulates judges, once on the bench, from political accountability. In the Federalist Papers, Alexander Hamilton said citizens “of every description” should value judicial independence because “no man can be sure that he may not be tomorrow the victim of a spirit of injustice.” As the framers of the Constitution clearly understood, a judiciary that can protect our constitutional rights without fear of political backlash guarantees freedom for all.

Billy Corriher is the Associate Director of Research for Legal Progress at the Center for American Progress Action Fund.

SOURCE: AP/J. Scott Applewhite

A detail of the West Facade of the U.S. Supreme Court is seen in Washington.

See also: Ask the Expert: The Politicization of the Constitution by Ian Millhiser

The most important legal development in the last decade is the Republican Party’s wholesale abandonment of judicial restraint. Less than a decade ago, President George W. Bush campaigned against “activist judges” who seize the power to “issue new laws from the bench.” And Bush’s Supreme Court appointees peppered their confirmation hearings with the rhetoric of restraint. Chief Justice John Roberts said that he would “prefer to be known as a modest judge,” and he emphasized that when judges make policy judgments, “they lose their legitimacy.” Justice Samuel Alito expressed similar sentiments, warning that judicial decisions should be narrow and focused on the facts of a particular case:

“[I]f judges begin to go further and announce and decide questions that aren’t before them or issue opinions or statements about questions that aren’t before them, from my personal experience, what happens when you do that is that you magnify the chances of getting something wrong. . . . [I]t makes for a better decision if you just focus on the matter that is at hand and what you have to decide and not speak more broadly.

Whatever Justices Roberts and Alito believed during their confirmation hearings, however, it rapidly became clear that they have little interest in restraining themselves. In their first full term together, both justices joined an opinion overruling a very recent abortion precedent because “some women come to regret” their own choices when they are allowed to make them.They claimed that a plan to desegregate public schools violates Brown v. Board of Education. And they infamously cut back on women’s right to equal pay for equal work in the Ledbetter decision that was later overturned by an Act of Congress.

In later terms, the Court’s conservatives pushed to immunize corporations from state consumer protection law.They expanded corporations’ ability to force consumers to sign away their ability to enforce their rights in a court of law. And they massively expanded wealthy interest groups’ power to use their substantial fortunes to influence elections. They are widely expected to end, or at least dramatically roll back, affirmative action in public university admissions this coming term. And in Citizens United v. Federal Election Commission, the conservative justices reached far beyond the question presented to them in order to sweep away decades of law prohibiting corporate efforts to influence elections. So much for “focus[ing] on the matter that is at hand” and “not speak[ing] more broadly.”

None of this is to say, of course, that the Roberts Court can always be counted on to intervene in politically charged cases. To the contrary, on issues such as voting rights, where the Supreme Court has historically stood as one of democracy’s most important guardians, the Court’s conservatives have largely abdicated this essential role.

Moreover, as audacious as the conservative justices have been, their activism pales in comparison to Republican elected officials’ judicial wish list. The legal case against the Affordable Care Act has, in the words of a top conservative judge who was awarded the Presidential Medal of Freedom by former President George W. Bush, no basis “in either the text of the U.S. Constitution or Supreme Court precedent.” Now, however, belief in the law’s unconstitutionality is akin to gospel among Republican partisans (including four of the five conservatives on the Supreme Court). And for many Republicans, this constitutionally challenged assault on health reform is only the first item on a much longer list. As a Center for American Progress report documented last year, numerous top Republican lawmakers-governors, senators, and other members of Congress-are on record claiming that everything from Social Security to federal child labor laws to Medicare to the national ban on whites-only lunch counters is unconstitutional.

So while conservative judges use their dominance on the federal judiciary to implement many of the GOP’s deregulatory goals and slant the electoral playing field in a way that helps elect more Republicans, GOP elected officials are pushing these judges to become even more aggressive. If former Massachusetts Gov. Mitt Romney wins the presidential election in November, this Republican dominance will only be solidified. Moreover, as four of the Supreme Court’s current members are over the age of 70, Gov. Romney will likely be able to shift the Court even further to the right. If President Barack Obama should win a second term, by contrast, he could replace Justices Antonin Scalia, Anthony Kennedy, or another member of the Court’s conservative bloc, potentially giving the Court a progressive majority for the first time since the early days of the Nixon administration.

This report will explain several of the narrowly decided cases which have reshaped worker and consumer rights and changed the face of our democracy, as well as some narrow misses where the conservative bloc failed to gain a majority to achieve a Republican-favored outcome. Additionally, this report explores the future legal landscape, which will likely turn on the outcome of the upcoming presidential election. If President Obama prevails in November, many of the justices’ incursions on consumers, workers, and voters would likely be reversed in a matter of just a few years if the president has the opportunity to replace one of the Court’s five conservatives. Should Gov. Romney prevail, by contrast, his appointments could affect a massive transfer of power from the two branches-executive and legislative-the American people elect to the one branch-judicial-that would likely be controlled by Republican-nominated conservative judges for a generation or more.

Ian Millhiser is a Senior Policy Analyst, Constitutional Policy, at the Center for American Progress Action Fund and is the Editor of the Center for American Progress Action Fund’s ThinkProgress Justice.

See also:

• Ask the Expert: The Politicization of the Constitution by Ian Millhiser

SOURCE: Center for American Progress

Download this statement (pdf)

Chairman Upton, Ranking Member Waxman, and other distinguished members of the committee, thank you for inviting me to participate in this hearing on “Internet Privacy: The Impact and Burden of EU Regulation.”

My testimony today makes three points.

First, the EU Data Protection Directive has deep roots in the U.S. approach to privacy. It incorporates the fair information practices that were first written in the United States, and the directive has most of the same elements as U.S. laws such as Gramm-Leach-Bliley and HIPAA. The privacy principles in Europe and the United States are thus quite similar, although our precise institutions for addressing privacy are different.

Second, support for basic privacy principles is good policy for the United States. A “we don’t care about privacy” attitude from the United States would create major risks for American jobs, exports, and businesses. Other countries could then decide that the United States is a noncompliance zone and ban transfers of data to the United States. Foreign competitors could use the lack of U.S. privacy protections as an excuse for protectionism, and insist that information processing happen in their country and not in the United States.

Third, in my book on the directive and elsewhere, I have written criticisms of many aspects of European privacy law. With that said, the European regime has also made vital contributions to improving privacy practices in the United States and globally. Many of the sensible ways that we “self-regulate” in the United States today depend on privacy good practices that were shaped by discussions in Europe about how to achieve business goals while also protecting individual privacy.

Background of the witness

I am the C. William O’Neill Professor of Law at the Moritz College of Law of The Ohio State University, and Senior Fellow at the Center for American Progress. In 1998 I was the lead author, with Robert Litan, of None of Your Business: World Data Flows, Electronic Commerce, and the European Privacy Directive, published by the Brookings Institution. In 1999, after having previously led a U.S. delegation to Europe on privacy issues, I was named chief counselor for privacy in the U.S. Office of Management and Budget. In that role I was the first (and thus far the only) person to have government-wide responsibility for privacy policy.

Among other activities in that position, I worked closely with the Department of Commerce in negotiation of the Safe Harbor agreement that the European Union and the United States signed in 2000. The Safe Harbor was negotiated because the directive in many instances prohibits transfer of personal information to countries outside of the European Union unless there is “adequate” privacy protection. Since 2000 companies that agree to comply with the Safe Harbor rules have been able to lawfully transfer personal information from the European Union to the United States.

After working at OMB, in 2001 I returned to law teaching. I have written and spoken extensively on privacy and security issues, with publications and speeches available at www.peterswire.net. In 2009 and 2010 I was special assistant to the president for economic policy, serving in the National Economic Council under Lawrence Summers. In August of last year, I returned to law teaching for Ohio State. I live in the D.C. area.

American roots of the EU directive: Shared privacy principles in the United States and the European Union

In this hearing on the EU Data Protection Directive, it is useful to show the deep American roots for the directive’s approach to privacy, as well as major similarities in the principles of privacy protection shared by the United States and the European Union. There are very important differences in the specific privacy rules and institutions but the similarities are greater, in my experience, than many people are aware.

As the committee knows, the Fair Information Practices, or FIPs, are a major foundation of privacy protection. These FIPs are built into the directive but the first publication of the FIPs came from the U.S. Department of Health, Education, and Welfare Advisory Committee on Automated Systems, in 1973. That committee wrote:

The Code of Fair Information Practices is based on five principles:

1. There must be no personal data record-keeping systems whose very existence is secret.
2. There must be a way for a person to find out what information about the person is in a record and how it is used.
3. There must be a way for a person to prevent information about the person that was obtained for one purpose from being used or made available for other purposes without the person’s consent.
4. There must be a way for a person to correct or amend a record of identifiable information about the person.
5. Any organization creating, maintaining, using, or disseminating records of identifiable personal data must assure the reliability of the data for their intended use and must take precautions to prevent misuses of the data.

These FIPs were soon put into law in the United States. In 1974 Congress passed the Privacy Act, which continues to apply today for federal agencies. The Privacy Act contains legal guarantees for FIPs such as notice about the existence of systems of records, notice of what information is in those systems of records, choice about secondary use, access and correction of records, and reliability of data.

The FIPs and the Privacy Act had a profound effect on European data protection. Several key countries there passed their first data protection laws in the late 1970s and early 1980s. Also in this period, the Organisation of Economic Co-operation and Development, or OECD, promulgated its “Guidelines on the Protection of Privacy and Transborder Flows of Personal Data.” These guidelines adopt the FIPs. They are nonbinding but the United States was a leader in their drafting and the guidelines have been a major source of subsequent privacy law worldwide. European privacy experts agree that these guidelines were a key source for the EU Data Protection Directive.

The impact of these U.S.-originated FIPs has continued over time. The Federal Trade Commission, U.S. Department of Commerce, and other federal agencies have often endorsed the FIPs. The Congress has included FIP-style protections in numerous laws, including: Privacy Act of 1974; Family Educational Rights and Privacy Act of 1974; Right to Financial Privacy Act of 1978; Cable Communications Policy Act of 1984; Electronic Communications Privacy Act of 1986; Employee Polygraph Protection Act of 1988; Video Privacy Protection Act of 1988; Telephone Consumer Protection Act of 1991; Driver’s Privacy Protection Act of 1994; Health Insurance Portability and Accountability Act of 1996; Children’s Online Privacy Protection Act of 1998; Gramm-Leach-Bliley Act of 1999; CAN-SPAM Act of 2003; and Fair and Accurate Credit Transaction Act of 2003. This history shows that the American-originated FIPs have had a profound effect on privacy laws in Europe and globally, and are incorporated into many American laws today.

In the area of fundamental rights, there is also greater overlap on privacy than observers often recognize. In Europe privacy is considered a fundamental human right under Article 8 of the European Convention on Human Rights, adopted in 1950. Article 8 is entitled “Right to Respect for Private and Family Life” and it provides, “Everyone has the right to respect for his private and family life, his home and his correspondence.” In the United States, the word “privacy” does not appear in the Constitution. But the Constitution contains important protections for privacy. For instance, the Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects”—language written long before Article 8 and a model for it. The Third Amendment protects against a major privacy violation—the quartering of soldiers in our homes. The Fifth Amendment rule against self-incrimination protects our having to reveal information about ourselves. More generally, the Constitution protects liberty. Alan Westin’s classic 1967 book “Privacy and Freedom” shows the historical, practical, and theoretical reasons why personal privacy is an essential component of human liberty. Excessive intrusion by the state and society threatens freedom.

This history, in my view, shows a substantial overlap between the European and American approaches to privacy protection. The specific laws and institutions differ in important respects. The basic principles of respect for the individual’s privacy, however, are importantly similar.

Privacy and protectionism: The risk to U.S. jobs and businesses

I believe that the U.S. response to European privacy rules should answer two questions: What will encourage U.S. jobs, exports, and business? And how we do establish workable and reasonable privacy protections for American citizens? One major risk is that the European Union and other countries will use the relative lack of U.S. privacy protections as an excuse for protectionism against U.S. companies that process personal information.

An important reason for writing the Brookings book in 1998 was because of the risk of a trade war between Europe and the United States on privacy and transborder data flows. The answer we worked out was the Safe Harbor agreement in 2000. U.S. companies that entered the Safe Harbor were assured of smooth business relations with Europe, under a privacy regime that clarified a number of important practical implementation problems. This Safe Harbor was approved by the European Union as providing “adequate” privacy protection, so that personal information could be lawfully transferred to the United States.

More than a decade later, the risk of protectionism is growing again for transborder data flows. The European Union is in the midst of a major revision of the directive, and the leaders in that effort are pushing for stricter privacy protections in important respects. In addition, important trading partners of the United States are increasingly adopting Europe-style privacy regimes. India’s privacy law came into effect this year, with limits similar to Europe’s. Mexico and a number of other Latin American countries have recently adopted or are in the process of adopting privacy laws, generally modeled on the law in Spain and the European Union.

As we saw with Europe in the 1990s, there are at least two significant threats to American interests if these privacy regimes determine that the United States does not have strong enough privacy protections. First, there can be a categorical decision that U.S. protections are not good enough—not “adequate” in the language of the directive. Such a decision could affect entire industries. Second, the lack of U.S. privacy rules can become a powerful excuse for protectionism, risking U.S. jobs and the sales of U.S.-based businesses. Prior to the Safe Harbor, there was a widespread perception that American-based companies were subject to stricter privacy enforcement in Europe than domestic companies. The Safe Harbor created important safety for U.S.-based companies. The Safe Harbor does not exist, however, for India, Latin America, and other countries that have adopted privacy laws since 2000, including Japan and South Korea. It is also not clear whether the Safe Harbor would apply if and when the European Union updates its directive.

Cloud computing provides a vivid example of the risks to U.S.-based industry. Information services, including cloud computing, are an area of global leadership for the United States. The province of British Columbia, however, a few years ago expressed concerns that U.S. privacy laws are not protective enough, and barred some contracts that would have sent data to the United States for processing. This year, there have been serious discussions in European legislatures that the Patriot Act and other features of U.S. privacy law make it too risky for the data of European citizens to be stored in the United States.

U.S. privacy strategy in a world with national enforcement

The cloud computing example illustrates the risk that local companies will use weak U.S. privacy laws as a reason to favor local industry at the expense of U.S.-based companies. The challenges for the United States are greater because enforcement agencies in other countries have powerful tools at their disposal. For instance, just this week the German state of North Rhine-Westphalia announced a privacy fine of 60,000 Euros against a financial firm for improper affiliate sharing.

A “we don’t care about privacy” attitude from the United States creates major risks for U.S. jobs, exports, and businesses. The risks apply for key areas of U.S. business strength, including cloud computing, information services, Internet sales, and other businesses that rely on using personal information. Privacy regulators in other countries can decide that the United States is a noncompliance zone, and ban transfers of data to the United States. Foreign competitors can gleefully point to the lack of U.S. privacy protections and insist that information processing happen in-country, and not be a service provided in the United States.

U.S.-based companies cannot simply ignore the privacy regulators that exist in almost all of our major trading partners today. Many U.S.-based companies have employees and assets in these countries. Those assets can be taken in privacy enforcement actions, and employees themselves are subject to strict penalties, as illustrated by the criminal penalty in Italy against a Google employee.

My view is that U.S. interests are served better by emphasizing our similarities on privacy rather than our differences. This approach was important in avoiding a trade war in the period leading up to the Safe Harbor agreement in 2000. The current administration has taken this approach in the Commerce Department Green Paper on privacy, which supports basic privacy principles while cautioning against ill-considered regulations. The Federal Trade Commission, as an independent agency, continues to push for better privacy practices in the United States, encouraging effective self-regulation but willing to see stricter rules go into place if industry does not safeguard information responsibly.

One example of this constructive approach has been the United States’ participation in the annual Data Protection and Privacy Commissioners conference, held last year in Jerusalem and this fall in Mexico City. Historically, the United States was excluded from the official “closed” session, on the grounds that we did not have an independent Data Protection Authority such as exists in each European country. In 1999, when I served in the Office of Management of Budget, I was admitted to this session on “observer” status. In subsequent years, U.S. officials continued in that observer status. Last year, for the first time, the Federal Trade Commission was granted full membership in the closed session. The United States is thus at the table for key international meetings about privacy issues, and we are able to explain the American perspective and protect American interests. Over time, European and other privacy officials have gained a far greater appreciation for the substantial privacy protections that do exist in the United States, including the numerous U.S. statutes listed earlier. The factual foundation created by this work, combined with current efforts by the Commerce Department and FTC, provides a potent response to the protectionist impulse that might otherwise block U.S. businesses.

In short, U.S. jobs, exports, and businesses benefit from a strategy that emphasizes our common privacy principles and engages privacy regulators overseas in a way that minimizes the risk of their protectionist impulse. The United States will and should maintain its own privacy legal structure. But my experience is that members of Congress and the American people do believe in common-sense privacy protections, and we should emphasize that fact while avoiding overly prescriptive regulations.

Strengths and weaknesses of the EU privacy regime

As the sole minority witness in a hearing that emphasizes the “burdens” of the EU directive, I believe it is helpful to include in the record some of the strengths of the European approach.

In the 1998 book on the directive, written as it was going into effect, we wrote in detail about weaknesses in the European privacy regime. The example that perhaps got the most attention was the question of whether a person could legally take a laptop computer containing personal information from Heathrow Airport to the United States—whether that would count as an illegal transfer to the United States. One EU official said that this sort of laptop export could be a violation of the directive. I believe this example helped focus attention on the practical problems in implementing the directive.

As we have gained experience with the directive since that time, it is worth noticing that the directive has not interfered with business travelers and their laptops. The directive has the flaw of appearing to prohibit a wide range of behavior, but common sense generally applies in daily activity. This “aspirational” model of law, where broad rights are stated in vague terms, is different from the typical American statute, which is more specific in describing requirements and exceptions. I remain concerned that European law often does not provide enough guidance to system owners about what exceptions exist and where compliance is actually required or not.

In the 1998 book and elsewhere, I have written about other concerns I have with the directive. For instance, the directive has a narrower view of free speech protection than the First Amendment provides in the United States. I am also concerned about a worrisome tendency to expand the scope of what counts as personal data, in ways that could apply the directive’s regulatory apparatus to web logs and other essential components of the Internet.

There are also very important strengths in the European approach, which should be considered in any fair overall assessment of their system and ours. At the most general level, the directive assures that there is a “cop on the beat.” The Data Protection Authorities give sustained institutional attention to privacy. These DPAs can address the constant stream of privacy issues created by evolving technologies.

The European DPAs also work together to study and engage on emerging privacy issues. Their role is described well in a letter this week by the Trans Atlantic Consumer Dialogue, which has been submitted to the committee. That letter states:

Seventh, the EU Data Directive also incorporates a structure to assess new challenges to privacy and to make appropriate recommendations following study and review. The Article 29 Data Protection Working Party, established by the Directive, has produced almost 200 reports and recommendations for the consideration by EU policymakers. The United States does not appear to have any comparable agency to meaningfully assess such topics as Geolocation services, the use of RFID in identity documents, cloud computing services, or data protection issues related to money laundering.

In the United States, the Federal Trade Commission plays a similar role on some issues, but the breadth of engagement by the European agencies is greater than FTC staffing currently supports.

My experience in the privacy field for nearly 20 years leads me to the conclusion that the sustained engagement by Data Protection Authorities has had a major and often positive effect on the privacy practices of global companies. These practices, in time, spread to a wider range of organizations as best practices become standard practices.

A new privacy issue is often first raised publicly by a Data Protection Authority or the Article 29 Working Party. The issue is then often discussed by companies, technical experts, government officials, and privacy advocates. My view is that the outcome is often less strict and more practical than an initial reading of the directive and national laws might seem to indicate. The outcome is often more protective of privacy than if the debate had not occurred. The practices that emerge from these discussions often become the norm for the industry.

One example of this pattern is the decision by major search engines (Google, Microsoft, Yahoo) to limit the time they would keep search history in identifiable form. The companies previously kept this data indefinitely in a form that could be easily linked to an individual. This basically meant that they were building up a lifetime record of each person’s search history. After discussion with European authorities, as well as the FTC, the companies agreed to anonymize the search history after a number of months. This outcome, in my view, provided significant privacy protection—many of us would not want our search records from long ago to be potentially revealed to unknown persons. The outcome was also practical from a business point of view.

Another example of an idea from Europe that has spread is the chief privacy officer. German law has long encouraged this approach. Many U.S. companies have CPOs today, CPOs exist in major federal agencies, and HIPAA requires covered entities to have a designated person responsible for privacy. From an initial group of about 150 persons in 2001, the International Association of Privacy Professionals today has more than 9,000 members, and it has credentialed thousands of Certified Information Privacy Professionals. These privacy professionals provide an institutional expertise that enables organizations to live up to the privacy and security promises they have made to individuals both in the United States and abroad. Without such information experts in today’s world of complex data flows, a company would often find it difficult to understand how to handle customers’ data legally and appropriately.

This sort of dialogue, prompted in many cases by privacy officials in Europe, is a far cry from the caricature one sometimes hears of regulation-mad agencies bent on destroying commerce. Information technology and practices about information change rapidly. The European institutional commitment to privacy has undoubtedly deepened and broadened our understanding of these issues. Today, many sensible safeguards exist in the “self-regulated” U.S. market at least in part due to the efforts of privacy officials in Europe.

In conclusion, I thank the committee for asking me to testify here today, and I am glad to answer any questions you may have.

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Peter P. Swire is the C. William O’Neill Professor of Law at the Moritz College of Law of The Ohio State University and a Senior Fellow at the Center for American Progress.

SOURCE: AP/Ed Reinke

Republican U.S. Senate candidate Rand Paul is shown during an interview at his campaign headquarters after winning his party's primary election in Bowling Green, KY. Paul says that a 1964 Civil Rights Act provision strikes him as unconstitutional because it infringes on white business owners' rights to exclude black patrons from their establishments.

The current political efforts of some conservative and Tea Party leaders smack of rank racism. Yes, that’s strong language, but there’s no other way to describe their odious behavior. It harkens back more than a half century ago, recalling the white segregationists’ efforts to stop the unstoppable civil rights movement. No one has brought out the fire hoses and German shepherds . . . yet.

But the language is sickly familiar. Right-wing extremists talk of state’s rights and loss of freedom and, most disgustingly, “taking back our country.” That’s the language of the disgraced, of 1960s racist reactionaries such as Alabama police officer Bull Connor, Georgia Gov. Lester Maddox, Sen. Strom Thurmond of South Carolina, and Arkansas Gov. Orval Faubus.

It’s the infamous southern strategy redux, which was developed by Richard Nixon, perfected by Republican political strategist Lee Atwater, and exploited by his acolyte Karl “Bush’s Brain” Rove. Now here comes Kentucky GOP Senate hopeful Rand Paul, a darling of the Tea Party movement, who boldly told several audiences, including his state’s leading newspaper, that a provision of the 1964 Civil Rights Act struck him as unconstitutional because it infringes on the rights of white business owners to exclude black patrons from their establishments.

Not content with making that racist faux pas—he tried to back track, at least initially—he followed it up with an endorsement of a nascent right-wing-inspired move to end birthright citizenship. This is yet another of the backward-looking wedge issues pushed by conservative extremists, including 90 House Republicans who co-sponsored last year legislation that seeks to rewrite the Constitution by denying citizenship to children born in the United States.

More recently Arizona state Sen. Russell Pearce, the lawmaker behind that state’s impending immigration law that would racially profile citizens to weed out undocumented residents, proposed ending birthright citizenship in his state. His aim? To prevent citizenship for those he calls “anchor babies,” a virulently nasty term for U.S.- born children of immigrants. (Pearce’s intent is not too hard to figure out when one considers his palling around with neo-Nazis, anti-Semitic emails, and the drafting of his anti-Latino laws by the legal arm of a Washington, D.C. think tank exposed by Rachel Maddow and the Southern Poverty Law Center as founded and funded by white supremacists.)

Kentucky’s Paul embraced this racist tactic shortly after winning his GOP primary race. In an interview with a Russian television station, Paul declared his support for federal legislation to deny citizenship to immigrant babies even if they’re born on U.S. soil. “We’re the only country I know of that allows people to come in illegally, have a baby, and then that baby becomes a citizen,” Paul said, obviously unaware that many nations including Canada, Mexico, and Brazil grant citizenship at birth. “And I think that should also stop.”

That truth defies Paul’s position is incontrovertible. The 14th Amendment to the Constitution says it plainly: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” That’s the same Constitution that conservative extremists now want back. Well, in their own words: “Read the law.”

And before we get any crazy Internet-inspired legal interpretations of the word “jurisdiction,” the Supreme Court laid this to rest way back in 1898 when ugly laws were trying to keep Chinese immigrants out of our country. In U.S. v. Wong Kim Ark the Supreme Court found that no state or Congress can make any law that denies the rights of citizenship to someone born here based on their parents’ country of origin.

The 1964 Civil Rights Act is equally settled law. That the federal government can stop discrimination in businesses that serve the public is now unquestioned following a myriad of definitive court cases. We have no doubt that Rosa Parks would not have been satisfied with Paul’s twisted rationalization for allowing racism if she had faced such barbed rhetoric while refusing to give up her seat in the “whites” section of a public bus in Alabama in 1965.

Paul argues that as a libertarian, he believes that the bus company had the right to require Parks to remain seated in the back, but he would never condone racial discrimination. Fortunately, the majority Republican Kentucky Senate rebuked Paul’s view of America, voting unanimously last week for a resolution introduced by its sole African-American member, rejecting “any attempt to retreat from the guarantees provided by the 14th Amendment to the Constitution of the United States [and] the Civil Rights Act of 1964 . . ..”

Yes, America has beautifully moved on from the claptrap of defending segregation, and we are aware of no legitimate interest by any business group to stop Americans of any color from buying their products or sitting in their establishments. This renders Paul’s comments about opposing the 1964 Civil Rights Act and repealing parts of the 14th Amendment all the more odd and curious. Those aren’t practical proposals because they have no hope of passing constitutional muster or, we pray, close public scrutiny. So why then is Paul citing libertarian theory on nonissues?

Well, facts and logic suffer in competition with the emotional tug of racism. It’s tried and tested political theory: Go rogue and racist to gin up latent fears of an angry, activated base in low-turnout elections. Clearly, the strategy is to use not-so-subtly coded race talk to drive knuckle draggers to the polls in November.

As Paul told the Russian television audience, it’s politics and “demographics.” He said the real problem he fears is if the country gives so many brown-skinned people a fair and streamlined path to citizenship they will become Democrats by a 3-to-1 margin. “The Democrat Party is for easy citizenship,” he said.

Who knows what America will be like with more brown and black voters? African Americans and until very recently Latinos were historically swing voters. But the Republican southern strategy ended all but a smidgen of black support for the Republican party by the 1970s while anti-immigrant rhetoric in the nativist wing of the party in the 2000s meant Obama scored 27 points better among Latinos than Kerry did just four years earlier.

But for some extremist legislators, the fear of payback is a terrifying old dog. Never mind that such thinking is political suicide in the long term for conservatives. They imagine they can hold back the demographic tide sweeping across this nation with short-term laws that inevitably will be cast aside. By the year 2050 demographers estimate the United States will no longer be a majority white nation. The majority of the electorate will have darker skins.

Indeed, the overwhelming majority of young Latinos are citizens and they represent one in five of all children under 18. They will grow up to vote, marry each other and Americans of all other ethnic backgrounds, and create a game-changing voting bloc, especially in the Southwest. That’s the lesson of the civil rights movement that extremist conservatives and Tea Party folks really fear. Just as black voters across the South elected local and state representatives in a wave that helped pave the way for an Obama administration, more changes are on the way no matter what Paul and his ilk think.

Evidence of this is already clear in many cities and states. And yes, this simple, observable fact is the driving angst that fuels racist talk among extremist conservatives. This is what they really mean when they exclaim a desire to “take back our country.” Alas, there’s nothing they can practically do to forestall the inevitable browning of America.

In these so-called “postracial” days, when a black man makes international decisions from the Oval Office, a Latina sits in judgment on the Supreme Court, and African-American celebrities are role models and trendsetters for white suburban kids, it’s considered gauche to say that racists still walk among us. Branding people or their behavior as racist is considered a nuclear no-no, politically speaking. And that explains why we’ve heard so few progressive political leaders push back against the dog-whistle racism embedded in conservative prattle.

But they should, says Drew Westen, a professor of psychology at Emory University who has done extensive research in how to illuminate and negate the racial tactics of extremists. “You don’t begin a conversation by saying ‘You’re a racist, now let’s talk,’” he often says in public forums. “The average American doesn’t want to appear to be racist and will stop listening as soon as you call them one.”

But that’s no reason to rollover and play dead, either. “We must attack their use of racially coded language early and often,” he said during a recent presentation to congressional staffers. “All too often, those on the left have done nothing and allowed such language to fester and go unchallenged.”

No more. We’re calling you out, Rand Paul.

Sam Fulwood III and Henry Fernandez are Senior Fellows at the Center for American Progress Action Fund.

 

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National security, human security, and collective security are the three main aspects that “must be reflected in our foreign policy,” said Congressman Howard Berman (D-CA), chairman of the House Foreign Affairs Committee, at a CAP Action event last Thursday on the changing role of U.S. international development policy in the 21st century. We have a “priority to reduce poverty and alleviate suffering around the world because it’s the right thing to do,” he added, but partnering with developing countries also promotes our own safety and security.

Berman was the keynote speaker for the event, which featured John Norris, Executive Director of CAP’s Enough project; Peter McPherson, president of the National Association of State Universities and Land-Grant Colleges; Eli Adashi, former dean of medicine and biological sciences and the Frank L. Day Professor of Biology at Brown University; and Ambassador Wendy Chamberlin, president of the Middle East Institute. Rudy deLeon, Senior Vice President for National Security and International Policy at CAP Action, gave introductory remarks and Ken Gude, Associate Director of CAP Action’s International Rights and Responsibility program, moderated.

Berman said outdated U.S. foreign assistance laws have not drastically changed since 1961 and are stuck in the Cold War past. He explained that we must “modernize our foreign aid system” to acknowledge 21st century “transnational” threats. The U.S. Agency for International Development, which carries out development policy, has become fragmented and weakened in terms of capacity and authority—and it has “little flexibility to adapt” on the ground.

The reform’s goal should be for our aid to reach those most in need as efficiently and effectively as possible, and we must take into account the role varied factors such as corruption and gender play in local distribution. Also, “intended beneficiaries” must be “re-engaged” at all parts of the aid process through “civilian command,” Rep. Berman said.

One key example of the need for reform is Pakistan. USAID returned to Pakistan in 2002, but the agency is not currently structured for our “post-Cold War, postglobalized situation,” Chamberlin said. We need a new approach and “we need to re-evaluate…how we can use our assistance to incentivize the types of reforms the Pakistanis are going to have to use for themselves to be successful,” she added.

“Development works in countries committed to development,” Norris said. But currently, in countries like Afghanistan, Pakistan, and Iraq, we are sending too much money without leadership committed to development.

Chamberlin thought that the United States needs to tell countries that, “you give us the ideas and we’ll help you get there.” We must incentivize those who have good ideas for reform along the same lines as Secretary of Education Arne Duncan’s “Race to the Top” education strategy. Adashi recommended restructuring USAID along the Global Health Initiative model because it puts all of our global health efforts under a “single umbrella.” It is an “idealized concept,” he admitted, but one that can work.

Lately, the military has been playing an increasingly larger role in development because they have the capacity and infrastructure. They do not, however, have USAID’s expertise, Gude lamented. “There is a role for the military” to play, McPherson explained, but it should not be to “design” programs.

Moreover, USAID has increasingly been pushed into the State Department, but Norris said it needs to be an autonomous organization to be successful. Diplomats and soldiers are not trained to be development experts because they excel in short-term, transactional assistance and projects, while development experts work toward a “fundamentally long-term goal” to transform the country.

The uneasy marriage between military and aid “puts civilians in a fairly dangerous spot” because international intervention lumps civilian aid and development workers into part of the military industrial complex, Norris explained. This alienates that community of experts and “hurts our standing in the international community.” USAID needs “structural independence” and Congress and the Defense Department must trust “the professionals to do professional work,” and lead reconstruction efforts, he added.

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“The expiration this year of several provisions of the 2001 USA PATRIOT Act…has prompted fresh debate in Congress over the appropriate balance of counterterrorism authorities for U.S. law enforcement agencies and the need to preserve American civil liberties and privacy,” said Rudy deLeon, Senior Vice President for National Security and International Policy at a Center for American Progress Action Fund event last Tuesday.

In light of the PATRIOT Act debate the Action Fund hosted a discussion with Representative Jane Harman (D-CA) and Ken Gude, Associate Director of CAP Action’s International Rights and Responsibility program, about how the government could ensure national security without compromising civil liberties.

Controversial items in the PATRIOT Act up for debate this year include the ease of access to business records, roving wire tapping provisions applicable to today’s digital technology, and surveillance of individual or “lone wolf” suspects who are unconnected to any terrorist organization. The panelists discussed the effectiveness of these provisions and whether they violated an individual’s right to privacy.

Rep. Harman has served as a member of the House Intelligence Committee for eight years and is currently chair of the Homeland Security Subcommittee on Intelligence and Terrorism Risk Assessment. She explained that a strong national security system could not come at the expense of civil liberties. “Security and liberty are reinforcing values…it’s not more of one and less at the other—it’s more of both or less of both.”

Rep. Harman lauded the Obama administration for its national security policies, but she said further steps are necessary. She praised President Barack Obama’s commitment to closing Guantanamo Bay detention camp, too, and his limiting the overclassification of material by the Homeland Security department. But she called for more debates over State Secrets Privilege—a legal precedent under which a court is asked to omit evidence based on government affidavit stating that court proceedings might release information that could jeopardize national security.

Harman commended the current House version of PATRIOT Act revisions because it would prohibit a person’s reading habits from being used as evidence of terrorist activity or intent.The bill would also change the target of a roving wiretap to a single individual rather than a single phone. Rep. Harman pointed out that the current rules are incongruent with new technology that allows a person to use disposable cell phones. New technology has made the need for a court order on every tapped phone inefficient.

Gude supported the expiration of the Lone Wolf Provision, which allows Foreign Intelligence Surveillance Act investigations of lone terrorists that are not connected to a specific organization. He explained that FISA was created to monitor people connected to foreign powers or terrorist groups and therefore the threshold for obtaining a surveillance warrant was lower. He and Rep. Harman agreed that the Lone Wolf Provision leaves individuals vulnerable to a violation of privacy by the government.

Gude explained that his objection to the Lone Wolf Provision isn’t that the government should be prohibited from conducting surveillance on individuals. However, he thought traditional criminal wiretaps were more appropriate when no evidence links the person to a foreign terrorist group.

Harman said that now “we have the opportunity to debate new rules in a new environment” since after 9/11, legislators did not take time to “get [counterterrorism] laws right.” She spoke about to the “authorization to use military force” on groups connected to 9/11 that “gave the president the right to act unilaterally.” She called for a new balance of power between branches of government regarding national security issues, and said that the laws after 9/11 gave the president too much power to make counterterrorism decisions without congressional or public debate.

In the spirit of checks and balances, Gude said there was hope for bipartisan consensus on counterterrorism reforms. “On an issue like this there is probably more room for bipartisan commitment than on almost any other issue on the Hill right now,” he said. Gude and Rep. Harman recognized a need for robust debate and strong cooperation on national security reform. Rep. Harman noted that “the terrorists are not going to check our party registration before they blow us up, so we really better be in this together.”

For more on this event please see its events page.

SOURCE: AP/Ron Edmonds

Judge Sonia Sotomayor was approved to the Supreme Court by the Senate Judiciary Committee despite race-baiting attacks by conservatives.

Ever since President Barack Obama nominated her to sit on the Supreme Court, Judge Sonia Sotomayor has endured a stream of false and race-baiting attacks on her record, but the right never laid a glove on her. Indeed, as the Senate Judiciary Committee’s lopsided 13-6 vote in her favor demonstrates, such attacks never resonated beyond a fringe group of lawmakers who viewed her nomination as another opportunity to demonstrate their kneejerk opposition to anything President Obama favors.

Make no mistake: Judge Sotomayor will be confirmed in a similarly lopsided vote next week, and the only senators to oppose her will be the same group of hardcore conservatives determined to hand President Obama his “Waterloo.” Their single-minded desire to see Obama fail is unfortunate, but it thankfully will not succeed in keeping an outstanding nominee off the Supreme Court.

The real question is whether the five conservative senators who have announced their intention to vote for Sotomayor—Senators Richard Lugar (R-IN), Olympia Snowe (R-ME), Susan Collins (R-ME), Mel Martinez (R-FL), and Lindsey Graham (R-SC)—will continue to place the nation’s interests ahead of politics, or whether they will join their kneejerk colleagues in opposing health care reform, a sensible energy policy, and long-needed financial regulation. The American people cannot afford to have their health and financial security gambled away in a right-wing attempt to “break” President Obama, and they are counting on lawmakers to abandon the right’s Waterloo strategy once and for all.

Ian Millhiser is a Legal Research Analyst at American Progress.

See also:

• Despite Right-Wing Claims, Sotomayor Has a Record of Impartiality by Ian Millhiser
• The Right’s Race-Baiting Assault on Sotomayor by Ian Millhiser

SOURCE: AP/Charles Dharapak

Supreme Court nominee Sonia Sotomayor on day four of her confirmation hearings.

After three days of baseless and race-baiting attacks on Judge Sonia Sotomayor failed to gain traction, cracks are beginning to form in the right’s opposition to this outstanding nominee. Yesterday, Sen. Orrin Hatch (R-UT) denounced an ad launched by an influential conservative organization that claims Sotomayor “led a group supporting violent Puerto Rican terrorists.” Today, Sen. Lindsay Graham (R-SC) announced that he believes Sotomayor is “not an activist,” and that her “record as a judge has not been radical.”

In other words, it is clear that Republicans of good faith recognize that opposition to Sotomayor’s nomination is misguided.

Today’s big headline will no doubt be the testimony of firefighters Frank Ricci and Ben Vargas, whose race discrimination claim was rejected by a panel of three judges, including Sotomayor. No one doubts that Ricci and Vargas—men who spent their entire careers running into burning buildings to save people’s lives—are dedicated and heroic firefighters. Sotomayor’s job as a judge was not to decide whether these men are worthy of great respect; the issue is what the law requires. Second Circuit precedent simply wasn’t on their side in this case, and Judge Sotomayor ruled the only way she is permitted to decide as a lower court judge.

If anything has emerged from this week’s hearing, it is Sotomayor’s absolute understanding that the law must control her decisions, regardless of who appears before her. Sen. Graham should be commended for placing this basic truth ahead of politics and rejecting the right’s unfounded claims that Sotomayor is unfit for the Supreme Court. All that remains to be seen is whether conservatives will accept something that is already obvious to anyone familiar with her record, or whether they will continue their race-baiting assault.

SOURCE: AP/George Bridges

Supreme Court nominee Judge Sonia Sotomayor is sworn in on Capitol Hill during her confirmation hearing before the Senate Judiciary Committee.

Senator Jefferson Beauregard Sessions III has a long history of questionable statements about race. He once quipped that he “used to think [the KKK] were OK” until he found out some of them were “pot smokers.” He routinely referred to an African-American attorney who worked for him as “boy,” and he once warned that attorney to “be careful what you say to white folks” after Sessions overheard him chastising a white secretary. Today, at Judge Sonia Sotomayor’s confirmation hearing, Sessions wondered aloud how Sotomayor could have voted differently than another judge of “Puerto Rican ancestry.”

So it is very odd that conservatives would choose Sessions as their point person on the Sotomayor nomination. At best this choice is laughably tone deaf. At worst it shows that Senate conservatives wholeheartedly embrace Sessions’ views on race.

It is crystal clear, however, that Sessions is the architect of the conservative strategy against Sotomayor. In a campaign that echoes Lee Atwater’s infamous Willie Horton ad and Jesse Helms’ “white hands” ad, today’s attacks on Sotomayor have focused almost exclusively on race. Nevermind that conservatives have only uncovered one case in Sotomayor’s record, Ricci v. DeStefano, which supposedly supports their claim that Sotomayor is biased against white men. And nevermind that Sotomayor simply followed a 1984 precedent which is nearly identical to Ricci when she decided that case. Apparently conservatives believe the facts must take a backseat to race-baiting.

There is no doubt that the American people will reject this antiquated strategy, just like the Senate rejected Sessions’ nomination to the federal bench in 1986. Twenty-three years later, conservatives are still living in the past.

Ian Millhiser is a Legal Research Analyst at American Progress.

See also:

• Despite Right-Wing Claims, Sotomayor Has a Record of Impartiality by Ian Millhiser

SOURCE: AP/Pablo Martinez Monsivais

Supreme Court nominee Judge Sonia Sotomayor prepares to testify on Capitol Hill in Washington, Monday, July 13, 2009, before the Senate Judiciary Committee.

Republican attacks in today’s confirmation hearings for Judge Sonia Sotomayor focused largely on their claim that Sotomayor lacks “impartiality” and is likely to decide cases based on her personal beliefs instead of the law. This line of attack is not surprising in light of their comments prior to the hearings, yet Republicans have still been unable to cite a single case where Sotomayor put her feelings before the law.

In Ricci v. DeStefano, the New Haven firefighters case, Sotomayor followed a 1984 precedent whose facts were nearly identical to those presented by Ricci. In her Second Amendment decision, Maloney v. Cuomo, she followed a binding Supreme Court precedent, which holds that the Second Amendment does not apply to the states. Sotomayor, in an eminent domain case called Didden v. Village of Port Chester that Republicans are dwelling upon, dismissed a landowner’s claim because he filed his case two years after the statute of limitations had run out. Despite all their ranting against “activist judges,” conservatives seem most bothered by the fact that Sotomayor refuses to be an activist.

As Senator Charles Schumer (D-NY) points out, Sotomayor ruled against immigrants 83 percent of the time, for the prosecution 92 percent of the time, and against discrimination plaintiffs eight of nine times. She is a nonideological judge, and she will be confirmed unanimously if she is given the fair hearing that Republicans claim she will receive.

Ian Millhiser is a Legal Research Analyst at American Progress.

SOURCE: AP

Reproductive rights activists around the country celebrated the decisive defeat at the ballot box on November 4 of attempts to ban or limit abortion rights in South Dakota, Colorado, and California.

Unfortunately, four other ballot initiatives—to ban gay marriage and adoption by unmarried couples—succeeded. These initiatives—in California, Arkansas, Arizona, and Florida—were defeats not only for the gay, lesbian, bisexual, and transgender, or GLBT community, but also for the reproductive rights community and for anyone who believes in freedom, equality, and fairness.

Reproductive rights mean more than the right to terminate a pregnancy, as explained in the Center for American Progress’s 2006 publication, “More Than a Choice.” In fact, a progressive reproductive rights agenda should encompass the ability to become a parent and to parent with dignity, to determine whether and when to have children, to have a healthy pregnancy, and to have healthy and safe families and relationships.

All of these issues were at stake in the 2008 ballot initiatives—both the measures that voters rejected, and the ones that passed into law. Specifically:

• South Dakota’s Measure 11 would have banned abortion with nominal exceptions for rape, incest, and the life or health of the woman. Designed as a direct legal challenge to Roe v. Wade, the ban clearly would have interfered with a woman’s ability to assess her own life circumstances and decide whether to become a parent. By impeding a physician’s ability to provide a pregnant woman with all appropriate medical care, it also would have jeopardized the right to a healthy pregnancy for women who want to carry current or future pregnancies to term. Voters rejected this dangerous law by 55 to 45 percent.
• Colorado’s Amendment 48 would have defined an embryo as a person, giving legal rights to every embryo beginning at fertilization. The impact of this “personhood” approach would have gone far beyond outlawing abortion. Bestowing legal rights on embryos would have prohibited the use of several types of birth control, and some practices to address infertility. It also might have prevented doctors from treating ectopic pregnancies, thereby threatening women’s future fertility and even their lives. This law would thus have obstructed many women from preventing a pregnancy, some women from ending unwanted pregnancies, and other women from becoming parents when they desperately wish to do so. Voters rejected the “personhood” amendment 73 to 27 percent.
• California’s Proposition 4 would have changed the state constitution to require doctors to notify parents before performing an abortion on a minor. This proposed law ignored the rights of young women to make their own decisions about whether or not to become parents. It also would have undermined ethical high-quality health care by forcing health providers to violate patient confidentiality, and it would have placed vulnerable teens at risk for family violence, homelessness, and forced reporting of abuse under unsafe circumstances. Recognizing that this law would not appropriately address at-risk family situations or create healthier, happier families, voters rejected the amendment 52 to 48 percent.

In all of these cases, voters recognized what was at stake, and voted against restrictions on reproductive freedom. But in four other cases, that didn’t happen:

• Arkansas residents voted to prohibit unmarried people, whether single or in heterosexual or same-sex couples, from adopting or fostering children. This effort, motivated by blatant homophobic intolerance, will prevent many caring, responsible adults from becoming parents. Sadly, this mean-spirited measure passed at a time when 3,700 children in Arkansas are in state custody awaiting loving homes.
• In Arizona, California, and Florida, voters approved constitutional amendments to ban same-sex marriage. These laws undermine families and relationships, and in many cases, the ability to become a parent or to parent with dignity. These laws also relegate one group of people to second-class citizenship, denying them rights and responsibilities that most Americans take for granted simply because they fell in love with someone society deems the wrong person.

Reproductive rights are about far more than abortion—they also encompass contraception, adoption, and intimate relationships, including marriage. The ability to manage our fertility through contraception and, when necessary, abortion, enables us to plan our families and to determine whether, when, and with whom to have children. Adoption, too, allows caring adults to become parents and form loving families. And marriage provides legal and social benefits that make it easier to care for one another and to raise children with the security and resources they need to thrive.

These rights are indivisible, and defending them comes not only from a concern for women or for the GLBT community. Reproductive rights are about nothing less than the ability to chart one’s own course in life—to make decisions about love, sex, and family without government interference or discrimination. That ability is central to core American values of freedom, equality, and fairness. It is time for progressives to join together in support of a complete and comprehensive reproductive rights agenda that advances liberty and justice for all.

SOURCE: AP

Today the Connecticut Supreme Court made their state the third to grant full marriage benefits to committed same-sex couples. This decision affirms the commitments of the seven families represented in Kerrigan & Mock v. Connecticut Dept. of Public Health, some of whom had been together for 31 years, as well as many other families across Connecticut. Congratulations to the plaintiffs in the case, as well as Gay and Lesbian Advocates and Defenders and the Love Makes a Family campaign.

This morning, the court found that, although civil union and domestic partnership programs can offer an important recognition of the families of gays and lesbians, they do not offer the full recognition, rights, and responsibilities of marriage. The court’s affirmation of the importance of marriage could not come at a more important time.

This November, voters in three states are being asked to take these rights and responsibilities away from gays and lesbians. In Arizona, Proposition 102 would add a ban on gay marriage to the state constitution, although such a ban is already state law. California’s Proposition 8 would invalidate the over 11,000 marriages that committed couples have entered into since May. Finally, Proposition 2 in Florida will amend that state’s constitution to ban not only same-sex marriage, but also all civil unions and domestic partnerships, including those of many elderly couples. Voters in these states have an opportunity to follow Connecticut’s lead, and vote against denying marriage rights to committed couples.

The issue of gay marriage will continue to be a subject of discussion across the country. The Connecticut Supreme Court ruling points to a growing understanding among Americans: No committed couple should be denied access to the marriage rights that are essential for them to protect their loved ones.

SOURCE: CAP

Download the full testimony (pdf)

Read John D. Podesta’s testimony

Mr. Chairman, thank you for the opportunity to testify today. My name is Mark Agrast. I am a Senior Fellow at the Center for American Progress Action Fund, where I work on issues related to the Constitution, separation of powers, terrorism and civil liberties, and the rule of law. Before joining the Center, I was an attorney in private practice and spent over a decade on Capitol Hill, most recently as Counsel and Legislative Director to Congressman William D. Delahunt of Massachusetts. A biographical statement is attached to my testimony.

I commend you for convening this hearing. The many ways in which the outgoing administration has turned its back on our nation’s long commitment to the rule of law have been exhaustively recounted. But as the presidential transition approaches, it is time to consider how Congress and the next administration can begin to turn the page on this appalling chapter in our history. This will be a major challenge. But it also offers an unprecedented opportunity to rededicate our nation to the advancement of the rule of law.

As we witness the political turmoil in Pakistan, Thailand, and Zimbabwe, the repression from Iran to Myanmar, and the return of “telephone justice” in Russia, it is a source of solace to know that such things, at least, are unthinkable in the United States.

This is first and foremost because of the rule of law—by which I mean not merely a system of rules, but the culture of lawfulness that is deeply embedded in our national consciousness and reinforced by the Constitution and our civil institutions.

Yet if this is cause for congratulation, it does not justify complacency. The culture of lawfulness in the United States has taken a beating over the past seven years. Many things that were unthinkable have taken place. If 9/11 shattered the myth of U.S. invulnerability, the response of our government has laid to rest another myth—that the rule of law was so firmly established in America that we were immune from the lawless exercise of power that afflicts so many other nations. We are not immune. It can happen here.

Every four years, we celebrate the peaceful transfer of power that is the envy of the world. Yet our electoral system is a shambles and the integrity of the vote is open to question in a way it had not been before.

We glory in the finely calibrated system of separated powers bequeathed us by the framers of the Constitution. Yet the Bush administration has subverted that system by advancing radical and extravagant theories of presidential power. And for the most part, Congress has acquiesced.

We revere the Constitution, which requires the president to faithfully execute the laws of the land. Yet this president has carried out that duty selectively at best, reserving the right to ignore the law, and secretly authorizing government officials to violate laws that limit his authority.

We pride ourselves on a federal judiciary that is widely respected as above politics. Yet its impartiality has come into question, and the system of advice and consent by which that impartiality was to be assured is not functioning as it should. At the state level, where many judges are elected, matters are far worse.

We profess our adherence to the human rights conventions which this nation did so much to put in place. Yet the policies and practices of our government have flouted and undermined some of the most basic of those core protections.

While in fundamental ways, ours is still “a government of laws, not of men,” our recent failings have made a mockery of our efforts to lecture the rest of the world about the rule of law. But this situation presents Congress and the next administration with an unusual opportunity. If we can no longer preach to other nations, perhaps we can join with them at last in the common endeavor of advancing the rule of law in every country, including our own.

This hearing is focused on the rule of law in the context of national security claims after 9/11. The witnesses will discuss such issues as the detention and abuse of suspected terrorists and their “rendition” to countries in which they will be subjected to torture; the surveillance of the international communications of U.S. citizens without probable cause; the withholding of government information from Congress, the courts, and the citizenry; and perhaps most egregious of all, the perversion of the law itself to mask and justify lawless conduct by the government.

You will hear testimony today on all of these issues. But I hope you also will look at the larger picture. The assault on the rule of law did not begin with 9/11, nor will it end there. Beyond the specific matters requiring redress, the next administration and Congress need to join together to make the restoration of the rule of law (at home and abroad) an overarching priority.

What does the rule of law require of us? The phrase has been given many meanings. Indeed, it has meant so many different things that it is in danger of meaning nothing at all.

The most recent and comprehensive effort to develop a robust and serviceable definition of the rule of law is that undertaken by the World Justice Project, a multinational, multidisciplinary initiative to strengthen the rule of law launched by the American Bar Association and its partners around the world. Its definition comprises four universal principles:

1. The government and its officials and agents are accountable under the law.

2. The laws are clear, publicized, stable and fair, and protect fundamental rights, including the security of persons and property.

3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.

4. The laws are upheld, and access to justice is provided, by competent, independent, and ethical law enforcement officials, attorneys or representatives, and judges who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

These four principles—accountable government; just laws; fair and efficient processes for enacting, administering, and enforcing the laws; and equal access to justice—seem to me to capture the essence of what the rule of law should mean. Taken together, they describe a social and political order in which all can enjoy their rights and freedoms under the Universal Declaration of Human Rights, commerce can flourish, and just and equitable communities can thrive.

Unfortunately, these principles have been systematically undermined by the actions of the Bush administration. It has:

• Circumvented the constitutional checks that limit its power.
• Flouted its obligations under international law.
• Employed excessive secrecy and spurious claims of privilege to avoid public scrutiny of its actions and evade accountability for its misdeeds.
• Exempted itself from the application of the laws.
• Destroyed public confidence in the administration of justice by politicizing the hiring and firing of U. S. attorneys and career Justice Department officials.
• Subverted the laws and the Constitution by issuing secret orders and legal opinions, and secretly revoking them.
• Misused presidential signing statements to claim the authority to disregard or decline to enforce over 1,100 provisions signed into law by the president, or to interpret the laws in a manner inconsistent with the clear intent of Congress.
• Impeded public access to government information through policies that encourage excessive secrecy and non-disclosure.
• Detained individuals designated by the president as “enemy combatants” for years without minimal due process, denying them access to counsel and independent tribunals, and arraigning them instead before special tribunals which fail to meet basic standards of fairness.
• Authorized the use of torture and cruel, inhuman, and degrading treatment and punishment, and the abduction and secret rendition of terrorist suspects to countries where they would be tortured.
• Ordered the interception of the international communications of millions of U.S. citizens in violation of federal statute, without a warrant and without any showing of probable cause.

The reversal of these lawless acts will require specific, targeted action, in some cases through legislation, and in others, through executive branch orders and directives. Such efforts will be immeasurably aided if Congress and the next president pledge to give concerted and systematic attention to the overall task of restoring public confidence in the rule of law.

Recommendations

The next president should:

• Make the restoration and advancement of the rule of law an overarching theme of his administration, highlighting its importance in the inaugural address and on other public occasions.
• Pledge to work with Congress to give priority to measures to restore public confidence in the rule of law, and call upon Congress to work with him in developing initiatives to advance the rule of law.
• Announce that it is the policy of his administration to refrain from actions that weaken public confidence in the rule of law, and that he will enforce a “zero tolerance” policy for official misconduct.
• Establish a national security law committee within the National Security Council to serve as the decision-making body for legal issues related to national security. The committee would be chaired by, and report to the president through, the attorney general. The establishment of such an entity would help ensure that future national security policies are consistent with the rule of law.
• Establish an interagency working group, headed by a senior official within the Executive Office of the President, to undertake a policy review and initiate, oversee, and coordinate efforts to advance the rule of law.
• Direct the attorney general, the secretary of state, the secretary of homeland security, and the heads of other key departments to designate a senior official to participate in the working group and oversee departmental efforts to advance the rule of law.
• Convene a White House conference on the rule of law in America and the world, to include federal, state, and local officials and civic leaders, including business, labor, education, scientific, religious, and human rights leaders.
• Work with other world leaders to place the rule of law on the international agenda.

The next Congress should:

• Conduct a bipartisan inquiry into the causes of the breakdown of the rule of law and develop a blueprint for legislative solutions.
• Develop legislative initiatives to promote the rule of law, including civic education initiatives that foster an appreciation of its importance to all segments of society.
• Incorporate into committee oversight plans hearings on progress made by the administration in advancing the rule of law.

Such steps as these will go a long way toward restoring respect for the rule of law as the foundation for communities of equity and opportunity, both at home and abroad.

Download the full testimony (pdf)

Read John D. Podesta’s testimony

SOURCE: CAPAF

Read the full testimony (pdf)

Read Mark Agrast’s testimony

Most Americans appreciate the need to keep secret national security information whose disclosure would pose a genuine risk of harm. But as the 9/11 Commission concluded, too much secrecy can put our nation at greater risk, hindering oversight, accountability, and information sharing.

Excessive secrecy conceals our vulnerabilities until it is too late to correct them. It slows the development of the scientific and technical knowledge we need to understand threats to our security and respond to them effectively. It short-circuits public debate, eroding confidence in the actions of the government. It undermines the credibility of the information security system itself, encouraging leaks and causing people to second-guess legitimate restrictions.

The Commission on Protecting and Reducing Government Secrecy, chaired by Sen. Daniel Patrick Moynihan (D-NY), and on which I served, concluded that “The best way to ensure that secrecy is respected, and that the most important secrets remain secret, is for secrecy to be returned to its limited but necessary role. Secrets can be protected more effectively if secrecy is reduced overall.”

Government secrecy serves its proper and necessary function when it is reserved for situations in which there is an identifiable risk to national security. In other words, it should be used to keep secret only that which genuinely needs to be kept secret.

One of Sen. Moynihan’s key insights was that secrecy is really “a mode of regulation.” But it differs from more familiar forms of regulation in that “the citizen does not even know that he or she is being regulated. Normal regulation concerns how citizens must behave, and so regulations are widely promulgated. Secrecy, by contrast, concerns what citizens may know; and the citizen is not told what may not be known.”

The result, said Moynihan, is “a parallel regulatory regime with a far greater potential for damage if it malfunctions.”

Over the past seven years, the American people have come to understand what he meant. During this period, the Bush administration has increased secrecy and curtailed access to information through a variety of means, including by:

• Issuing an executive order that encouraged the overclassification of government information by shifting the presumption in favor of classification
• Slowing the pace of automatic and systematic declassification of government records, from a high-water mark of 204 million pages in 1997 during the Clinton administration to only 37 million in 2007
• Presiding over an explosion in the use of “controlled unclassified” markings, most of which have never been authorized by statute, to restrict access to unclassified information
• Withdrawing from public view thousands of pages of information that had previously been unclassified and available to the public through the Internet
• Interpreting the Freedom of Information Act in a manner that has undermined the presumption favoring disclosure
• Failing to preserve millions of White House communications as required by the Presidential Records Act and issuing an executive order that impedes the access of historians and the public to the records of past administrations
• Invoking executive privilege, the state secrets privilege, and other common law privileges, to cover up administration misdeeds and deny plaintiffs their day in court
• Threatening journalists, whistleblowers, and other private citizens with criminal prosecution for the possession or publication of national security information; and perhaps most egregious of all, the issuance of secret orders and legal opinions to shield illegal actions from public scrutiny

The obsessive secrecy of the Bush administration has damaged not only the security it was ostensibly meant to protect but also the rule of law that enables our society to maintain its internal stability and cohesion.

The rule of law can thrive only in an open society in which the laws are known and understood; government actions are taken, insofar as possible, in full view of the public and subject to scrutiny and debate; and government officials are held accountable for the arbitrary or unscrupulous exercise of power. The rule of law requires that Congress, the courts, the public, and the press have access to the information they need to serve as effective checks on the executive branch. Without such information, there can be no checks and balances. Unless the people know what their government is doing, there can be no rule of law.

My written testimony proposes a series of steps by which Congress and the next president can address each of these problems, and I welcome the opportunity to discuss them with you.

The key recommendations include the following:

• Overclassification. The next president should rewrite Executive Order 13292 to reinstate the provisions of Executive Order 12958 that establish a presumption against classification in cases of significant doubt, permit senior agency officials to exercise discretion to declassify information in exceptional cases where the need to protect the information is outweighed by the public interest in disclosure, and prohibit reclassification of material that had been declassified and released to the public under proper authority.
• Controlled unclassified information. At a minimum, the next president should issue a new memorandum that creates a presumption against the designation of controlled unclassified information, and Congress should enact legislation to reduce the use of unclassified information control markings and establish an orderly process that would discourage their misuse and maximize public access to unclassified information. Better still, Congress should give serious consideration to getting rid of these designations altogether.
• Freedom of Information Act. The next president should direct the attorney general to revoke the Ashcroft memorandum and restore the presumption in favor of disclosure when there is no foreseeable harm to an interest protected by the exemption. If the president fails to take this step, Congress should amend FOIA to codify the presumption.
• Presidential records. The next president should revoke Executive Order 13233, removing the ability of heirs and children of former presidents to block access to presidential records and eliminating the new vice presidential privilege. If the president does not act, Congress should amend the Presidential Records Act to codify this change. Congress also should enact legislation to tighten the standards and procedures for preservation of electronic records and to include enforcement measures for noncompliance.
• State Secrets Privilege. Congress should consider statutory provisions to direct courts to weigh the costs and benefits of public disclosure in considering executive branch assertions of the State Secrets Privilege.
• Secret law. The next president should direct the attorney general to issue a memorandum indicating that Office of Legal Counsel opinions will not be withheld from Congress under any theory of privilege, and that there will be a presumption of public disclosure unless disclosure would pose a genuine risk of harm to national security. Congress should enact S. 3405, the Executive Order Integrity Act, to make it unlawful for the president to secretly modify or revoke a published executive order.
• Whistleblower and press protections. Congress should strengthen the Whistleblower Protection Act of 1989 to protect public employees from reprisal when they publicly disclose information regarding government wrongdoing or when they disclose classified information about government wrongdoing to members of Congress who are authorized to receive such information. Congress also should enact legislation to establish a qualified journalist-source privilege.

Taken together, these measures will help ensure that the government keeps secret only what needs to be secret. In so doing, they will enhance both openness and security while restoring respect for the rule of law. Thank you.

Read the full testimony (pdf)

I would like to approach my testimony today from a more personal level. For the record, I am not an expert in fiduciary instruments or investment law. I am not a regulatory expert or an investment lawyer. However, during my career I have had the dubious pleasure of sitting down face-to-face with a good many war criminals in places where they live and work – in Liberia, Rwanda, Bosnia, Kosovo and elsewhere. I can tell you without reservation, that all
of these men were acutely aware of investment laws and practice in the United States. These men eagerly awaited every mention of sanctions, every list of state sponsors of terrorism and every trafficking report out of the U.S. Government. They pay close attention to divestment campaigns. You will also be pleased to note that many of them seemed quite familiar with testimonies offered in front of the Human Rights Caucus!

Read more here.

As President George W. Bush prepares to leave the White House, the Supreme Court he reshaped through the appointment of Chief Justice John Roberts and Associate Justice Samuel Alito is completing its third term. What does the Bush Court’s record show about the impact his successor’s appointments could have on the Supreme Court and the nation?

The Roberts Court’s first two terms were sharply polarized in virtually every case of consequence, and during the entire 2006-2007 term, fully one-third of all cases split 5-4. The hard-line bloc of Roberts, Alito, Antonin Scalia, and Clarence Thomas voted in near lock step, scuttling major precedents and signaling their determination to rewrite constitutional law wherever required to match conservative policy and political agendas. Justice Stephen Breyer tartly summed it up on the last decision day of the 2006-2007 term: “It is not often in the law that so few have so quickly changed so much.”

The term now coming to an end involved many fewer major constitutional controversies, which means many fewer opportunities for the sharp right turns that provoked Justice Breyer to speak out last year. Yet the ideological rough edges on the Court’s right-wing—so apparent during the previous two terms—remained in full view in this term’s constitutional cases.

The record is clear. The choice for the future is stark. If the litmus tests that controlled President Bush’s judicial selection process continue to screen the next president’s judicial nominees, the United States will be, by 2012 and far into the future, a greatly changed nation. Americans will lose fundamental legal protections that they have long taken for granted.

Major Constitutional Controversies of the 2007-2008 Term

The Court has so far decided two major constitutional cases this term, with a third (District of Columbia vs. Heller, a second amendment case) likely to come down tomorrow. The two previous cases amply justified the conclusion of a new book by Judge Richard Posner, that this is by far the most conservative Supreme Court since the early 1930s, with four of the five most conservative justices of the past 70 years now sitting.

• Rule of law and executive power. In Boumediene v. Bush, the Court held that courts could not be stripped of their constitutional authority to entertain habeas corpus petitions from detainees held at Guantanamo Bay, Cuba. As columnist George F. Will observed after the decision, “No state power is more fearsome than the power to imprison. Hence the habeas right has been at the heart of the centuries-long struggle to constrain governments, a struggle in which the greatest event was the writing of America’s Constitution, which limits Congress’s power to revoke habeas corpus to periods of rebellion or invasion.”

But this elemental safeguard hangs by a thread. The vote to honor the Framers’ precise words was 5-4. The dissents were peppered with election-year sound-bites contrived for Fox News, such as Justice Antonin Scalia’s whopper that the Court’s decision “will almost certainly cause more Americans to be killed.”

• Partisan disenfranchisement as “voter fraud.” In Crawford v. Marion City Election Board, the Court decided a constitutional voting rights case with partisan political consequences potentially as drastic as (and more lasting) than the Rehnquist Court’s December 2000 politically charged 5-4 Bush v. Gore decision. In Crawford, the Court upheld, 6-3, a state law requiring voters to present in-state government photo IDs. Enacted by a Republican-controlled legislature, the law was transparently aimed at depressing turnout among minority, lower-income, aging, and out-of-state student citizens.

Justice Stevens’ narrowly drawn plurality opinion, joined by Chief Justice Roberts and Justice Kennedy, preserves the possibility for future challenges to similar voter ID laws in limited circumstances. Justices Scalia, Thomas, and Alito would rule out any such challenges, regardless of the real-world impact of particular voter ID laws.

The post-Bush implications are clear. New appointments of the Scalia-Thomas-Alito persuasion will ensure legislatures a blank check to pile up barriers that disenfranchise vulnerable minorities and entrench office holders responsive to wealthier constituencies.

Closing courthouse doors for ordinary citizens

Over the three decades since William Rehnquist became Chief Justice, the Court has carved out vast regulatory vacuums by obstructing or neutralizing federal remedies, while simultaneously “preempting,” or invalidating, state remedies. Three major decisions of the current term reflected and accelerated this trend:

• Windfall Profits For Exxon. By a vote of 5-3 (Justice Alito was recused) in Exxon Shipping Co. v. Baker, the Court cut $2 billion off of a jury award against Exxon.The Court imposed a new 1:1 ratio between compensatory and punitive damages, depriving maritime law trial judges and juries of their long-standing power and responsibility to determine the appropriate remedy for reckless corporate behavior. As pointed out by Justice Stevens in dissent, the Court’s opinion in Exxon is nakedly activist: Congress chose not to restrict the availability of punitive damages in this context, and not a single state court in the country has adopted the ratio chosen by the Court. At a time when gas prices and Exxon profits are at record highs, the majority chose to craft a new rule out of whole cloth that makes Exxon $2 billion richer, and takes this money from 32,000 commercial fishermen and native Alaskans who lost their livelihoods in the worst oil spill in U.S. history.
• Rights without remedies. In Stoneridge v. Scientific Atlanta, the Court held, 5-3 (Justice Breyer was recused) that pension funds and other group and individual investors in companies decimated by fraudulent managers cannot recoup their losses from third parties who knowingly facilitated the fraud. Typically such collaborators—contractors, vendors, consultants—are the only culprits left with assets from which compensation is possible. As Justice Stevens observed in dissent, the decision thwarted the intent of Congress, which enacted the law at issue in the case “with the understanding that federal courts respected the principle that every wrong would have a remedy.”
• Immunity for negligent marketers of medical devices. In Riegel v. Medtronic, the Court held that the 1976 federal Medical Device Act barred consumers injured by defective medical devices, or by negligent failures to warn of defects, from seeking compensation in state courts—even though the federal law nowhere specified any intent to invalidate such centuries-old common-law protections. Since federal law contains no provisions for individual recovery, the decision closes off all avenues for compensation.

Alternative Futures

A year ago, during the 2006-2007 term, the Roberts Court displayed extraordinary solicitude for corporate wrongdoers and hostility to individual access to justice when a 5-4 majority overturned a jury verdict awarding long-time Goodyear supervisor Lilly Ledbetter damages for decades of pay discrimination. This widely condemned decision required unequal pay claims to be brought within 6 months of the employer’s original discriminatory paycheck—even though employees typically learn of pay discrepancies only after many years, as was the case with Lilly Ledbetter.

In the current term, despite decisions such as Stoneridge and Riegel, the Court has not generally followed its Ledbetter approach of obstructing individuals’ suits against businesses. In particular, in widely noted workplace discrimination cases, the two new conservative justices broke ranks with their two more senior colleagues on the Court’s right-wing.

In two cases, Gomez-Perez v. Potter and CBOCS West v. Humphries, Justices Roberts and Alito stood alongside Justice Kennedy in support of well-established precedents, voting to reaffirm that retaliation against workers complaining of illegal job discrimination is itself a violation of antidiscrimination laws. In Meacham v. Knolls Atomic Power Laboratory, the Court, reaffirming a 2005 decision, imposed on employers seeking to avoid liability the burden of proving that lay-offs disproportionately affecting older workers were based on reasonable factors other than age.

It is commendable that, in these cases, Roberts and Alito followed through on the emphatic commitments they made in their confirmation hearings to take precedent seriously. But that should not obscure what is at stake for the Court’s future.

• For the first two terms following their confirmation hearings, Roberts and Alito zigged to the right and repeatedly joined Scalia and Thomas in targeting major constitutional and statutory precedents. They voted to override local elected school boards’programs for minimizing racial resegregation, to spurn expert medical opinion about safe abortion procedure, and to scrap wetland preservation rules reaffirmed by every administration, Republican as well as Democrat, since the Clean Water Act was first enacted.
• Election-year zags toward the center by these two conservatives are no guide to how they, much less new appointees of the same ideological stripe, will perform if the current four-justice bloc becomes a five, six. or seven-justice bloc securely in control of every case that comes before the Court.
• Lacking any need for political caution or the discipline of having to persuade more moderate colleagues to prevail, the Court’s dominant ideological zealots will see every case as an opportunity to bend the Constitution and laws to match conservative policy and political agendas. Bush v. Gore, Crawford v. Marion City Election Board, and Ledbetter v. Goodyear will be the order of the day, every decision day.

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“Cuando pensamos en el hecho que todas las anteriores elecciones presidenciales han sido entre hombres blancos, esta elección presenta una situación completamente nueva” dijo Roberto Suro, Profesor de la universidad del Sur de California en un evento del Center for American Progress Action Fund. Lo histórico de las candidaturas de Hillary Clinton, Barack Obama y Bill Richardon no puede ser subestimado, particularmente a medida que estados con una presencia importante de Latinos y Afro estadounidenses forman parte de la batalla en las primarias por los delegados.

Lo primero que hay que reconocer cuando hablamos de cómo votan las minorías en estas elecciones es que los grupos raciales y étnicos son comunidades diversas cuyas acciones no se pueden inferir en base a su raza. El profesor de la universidad de Princenton Eddie Glaude advirtió a la audiencia el “evitar usar rubricas generalizadoras de el voto Afro estadounidense o el voto latino” ya que estos encubren las diferencias que existen dentro estas comunidades. Los votantes Afro estadounidenses tienden a divergir de acuerdo a su clase social y educación, mientras los votantes latinos se dividen en base al idioma y geografía. El vislumbrar a electores como conjunto racial inevitablemente obscurece el debate.

Sin embargo, las políticas raciales e identidades sí juegan un papel significativo en las decisiones del individuo en las urnas. Gebe Martinez, Columnista y Contribuidora del rotativo The Politico expuso que “cuando había una sola silla en la mesa para las minorías, los Afro estadounidenses la obtenían, entonces los Hispanos aprendieron a apoyarse en los Anglos” una tendencia que esta siendo reflejado en el apoyo de los Hispanos a Hillary Clinton y John McCain.

Martinez afirmo que el apoyo a Clinton entre los Latinos esta cementado en la familiaridad que estos tienen con los Clintons, pero que si el Senador Obama termina siendo el nominado demócrata, los votantes Latinos lo apoyarían.

El Dr. Glaude hablo de las pautas históricas que influyen el voto en la actualidad citando la “manera compleja que una nueva generación de voces políticas Afro estadounidenses están surgiendo” unas voces menos influenciadas por la lucha por los derechos civiles. Estas voces no están orientadas a “activar el electorado” como fue el caso en la campaña de Jesse Jackon en 1984, pero más bien en elegir un candidato de la corriente principal – un giro en el paradigma.

“Las solidaridades políticas pueden ser hechas, y estas vienen y van” sostuvo Glaude, citando el ambiente cambiante para electores Afro estadounidenses y Latinos. Si es cierto que hay “tensiones muy reales entre miembros de estas dos comunidades” el enfoque debe de ser en el proceso democrático.

A medida que el calendario político incluye a más votantes Latinos y Afro estadounidenses en las elecciones primarias y en la elección general, un continuo enfoque en la participación democrática y concienciación continuara siendo lo que brindará el poder a las minorías raciales y étnicas que previamente carecían del sufragio.

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Despite this urgency, a mere 4.7 percent of the approximately 2,253 questions asked in presidential debates through December 2007 addressed human rights, and only one concerned the International Criminal Court—the permanent tribunal that prosecutes perpetrators of genocide, crimes against humanity, and war crimes. Current U.S. stances on torture, treatment of prisoners at Guantanamo Bay, and the International Criminal Court treaty compromise both international human rights standards and U.S. national interests. So why are human rights such an insignificant part of the presidential campaigns, and how can they be better integrated into American political dialogue?

This question was addressed by a panel moderated by William F. Schulz, Senior Fellow at CAPAF and former executive director of Amnesty International USA. The panel included Karen DeYoung, associate editor of The Washington Post; Gary Haugen, president of the International Justice Mission; Gayle Smith, co-founder of the ENOUGH!; and Coby Rudolph of the Save Darfur Coalition.

The international community has a low opinion of the United States because it violates specific international standards against cruel treatment, said DeYoung. Nevertheless, Schulz said that most candidates have no discernible position on the ICC or military action to prevent genocide and ethnic cleansing. Haugen pointed out that this may be because taking a stance could lead to the memorialization of a commitment that they would be unable to act upon as president particularly in the case of the ICC. But the United States will suffer the costs of its human rights abuses strategically, as well as morally; we must therefore press the 2008 presidential candidates to clarify their position on these issues, stressed DeYoung.

The panelists agreed that human rights will become more incorporated into the political dialogue when Americans see compelling reasons to get involved. Schulz recommended emphasizing human rights as an issue of American national interest; for example, labor rights abuses in developing countries cause a loss of American jobs. Smith said that a shift in the values of the electorate, from personal choice to global citizenship, could bring human rights into a more prominent position in political campaigns.

Unfortunately, supporting human rights isn’t necessarily “good politics,” Smith said. Even though the public seems less indifferent than in years past, candidates are unlikely to commit to a human rights agenda because it seems like an intractable problem. Fighting human rights must be seen as a long-term process rather than a tangible accomplishment.

Grassroots organizing helps build a movement to pressure political campaigns. Haugen said that grassroots organizing could show the public that human rights matter and that something can be done about it. Rudolph observed such development in the recent primaries, pointing to 700 voters in Iowa and 500 in New Hampshire who signed ads to support Darfur, which were displayed in the weeks prior to the primaries.

According to panelists, religion – including Christian entertainers – is playing an increasing role in bringing the human rights discussion into the spotlight. Internet advocacy also helps develop and maintain long-term interest in issues such as Darfur. Using tactics from rock concerts to e-mail lists, these grassroots movements can prioritize human rights in the public consciousness.

Though human rights dialogue is largely absent from the 2008 presidential debates, grassroots and online organizing can raise support in the public and put pressure on presidential candidates to stand up against genocide and the prison at Guantanamo Bay. Whether due to compelling national interests, values priorities of the electorate, or a belief that progress is possible, human rights ought to be a major component of U.S. electoral politics.