Equal Justice Under Law *

* unless you are a large corporation, in which case you are eligible for our “Supreme Court Gold Card”, which entitles you to “Have Justice Your Way.”  It’s a special thank you from our family of five foaming-at-the-mouth jurists to your family.

This is the worst Supreme Court ruling since Bush v. Gore, in which 5 radical political hacks decreed that the Equal Protection Clause prevented counties from having their own standards for counting ballots even though they had ruled otherwise before and it would have required the nullification of all modern presidential elections as well as most senatorial elections.  They covered their tracks then by stating in the opinion that it couldn’t be used as precedent.  In other words, they did what appellate courts aren’t supposed to do: they decided the specific case only, got a specific result they wanted, and said no one else could apply the case to any similar situation in the future.

Three original hacks and 2 Rehnquist clone hacks won’t cover their tracks here.  They have now guaranteed that corporations can drown out any competing interests on the airwaves in the weeks leading up to an election.  To get to this result, they pretend that corporations are people where it is convenient for them to be people (by granting them rights, including free speech) while retaining the benefits of not being people when it come to things like criminal liability for wrongdoing, tax status, and not having any individual take personal responsibility for corporate malfeasance, whether illegal or just negligent.

And as usual with radical conservatives, the public interest in having clean elections and free airwaves where people with diverse viewpoints can be heard regardless of money is dead to them.  So much for the judicial restraint Roberts and Alito b.s.-ed about through their hearings.  So much for the respect for precedent they talked up.

This even trumps the nonsensical finding that the Second Amendment applies to individuals rather than states even though the Amendment explicitly says it is to protect states.

Conservatives have turned the Supreme Court into nothing more than a super-legisature.  Neither precedent, nor the Constitution have any relevance to the majority of Justices.  The best predictor on any issue the Court takes up is what corporate power wants.  This isn’t a case of not understanding how a decision will apply to the “real world”.  The conservatives tailor their decisions to move the country in the direction that suits their views, as legislators do.

We need a Constitutional Amendment limiting Supreme Court terms t0 somewhere around 10 years.  That would yield the continuity we need while keeping the Court in touch with its constituents (a new concept for the Court).  After all, legislators in a democracy have constituents.  If the Court wants to be a legislature, we either must change the members of the Court or we have to reform it to at least make it a legislature that reflects a changing nation.

The best course would be to impeach Scalia, Thomas and Kennedy for the fraud they carried out in 2001, but Democrats don’t even have the stomach to strip Joe Lieberman of his subcommittee chair for killing health care and campaigning for McCain so that’s not going to happen.

Which brings us to this…

Bizzarroland

Michigan Democratic Senator Debbie Stabinow appeared on Rachel Maddow’s MSNBC show last night and said that Democrats would have to see if Republicans might, maybe, if we’re really nice and say please, want to work together to solve the nation’s problems.  Maddow pointed out that this isn’t what we’ve seen from Republicans.  They will see winning Massachusetts as confirmation that their obstruction works.

Stabinow claims they would need two-thirds of the Senate to do away with the cloture/filibuster rule (that’s not the only way to defeat the filibuster, or else why would Republicans have successfully bullied Dems into backing down on several judicial nominees when they threatened the “nuclear option” in 2005 despite opposition from the public? and why are others arguing that it can be done at the beginning of a new Congress by majority rule).  Nor would she endorse reconciliation.

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Maddow voiced skepticism, but Stabinow was undeterred, preferring to live in a land where Republicans care about people.  It is a land where Eric Cantor brings sacks of gold to charity health clinics on Sundays, where Mitch McConnell stares down insurance company sharks who gouge people, where John McCain exudes serenity and Sarah Palin is thoughtful.

President Obama is living in that world too.  Unfortunately, it’s the real Obama, unlike the Republican figments of Stabinow’s imagination.  The bottom line is this: any Democrat who wants to try the “make nice” approach with the GOP should have to explain why they are not doing everything possible to eliminate the filibuster, do end-runs around it, and pressure Republicans in every possible way.

Obama, Stabinow and others know progressives love ‘em.  But don’t think for a second that if they don’t stand up to fight for the principles we love even more, we won’t leave ‘em.  Massachusetts proved it.

Options on How to Kill or Avoid the Filibuster (with Thanks to Orrin Hatch)

A combination of options #1, #4 & #5 below would get a lot of through the Senate this year.  On everything else, force Republicans to vote to filibuster to get them on record.  If they lose on something, they can take it to the electorate and hammer Republicans on it.  Option #3 will never happen, but Option #2 would permit the change we voted for in 2008 to become a reality in 2011 (provided we vote for it again this November).

1.  Get 60 votes for cloture to end debate.  Given Republican lock-step obstructionism, that is impossible on any contested issue.  Parts of some bills like the health reform bill would be difficult for some Republicans to oppose and thus Democrats may try to, for example, pass a ban on excluding insurance coverage for pre-existing conditions this way.

2.  Eliminate the Senate Rule permitting the Filibuster at the beginning of a new Congress.  If Democrats hold 50 or more seats as of January 2011, they will be able to pass a Senate Rule at the beginning of the next Congress with a simple majority that would  eliminate the filibuster and guarantee that the Senate works on the basis of majority rule.  (Or they could allow a filibuster to allow a delay on a final vote without effectively preventing a final vote on legislation).  Here’s what Republican Senator Orrin Hatch of Utah wrote in The National Review (January 12, 2005):

A SIMPLE MAJORITY CAN CHANGE THE RULES

The Senate exercises its constitutional authority to determine its procedural rules either implicitly or explicitly. Once a new Congress begins, operating under existing rules implicitly adopts them “by acquiescence.” The Senate explicitly determines its rules by formally amending them, and the procedure depends on its timing. After Rule 22 has been adopted by acquiescence, it requires 67 votes for cloture on a rules change. Before the Senate adopts Rule 22 by acquiescence, however, ordinary parliamentary rules apply and a simple majority can invoke cloture and change Senate rules.

…Both conservative and liberal legal scholars, including those who see no constitutional problems with the current filibuster campaign, agree that a simple majority can change Senate rules at the beginning of a new Congress.

3.  Get 67 votes to change the filibuster rule during a legislative session.  That would allow a change right now.  Not going to happen.

4.  Reconciliation.  Congressional spending, taxing and other revenue measures as well as rules changes to the process can be passed through reconciliation.  This would work for parts of the health care bill as well as any other Democratic revenue and/or spending priorities.  Here’s how it works in more detail and here’s a summary of the budget process, including reconciliation.

The 1981 reconciliation bill, which encompassed legislative language from thirteen different committees in response to savings instructions mandated by the Senate, produced a legislative result that would have been impossible to achieve if each committee had reported an individual bill on subject matter solely within its own jurisdiction. By using a procedure that permitted packaging of the savings, Congress was able to consider President Reagan’s economic program as a whole, resistant to the type of special interest pressures that would have scuttled the savings if they had been proposed in piecemeal fashion.
- Republican Senator Howard H. Baker, Jr., then Senate Majority Leader (Winter, 1983)

5.  Circumventing the Rule with regard to specific presidential nominees.  This would allow any Obama nominees to avoid a filibuster threat.  Here’s Senator Hatch again:

A SIMPLE MAJORITY CAN UPHOLD A PARLIAMENTARY RULING

An alternative strategy involves a parliamentary ruling in the context of considering an individual nomination. This approach can be pursued at any time, and would not actually amend Rule 22. The precedent it would set depends on the specific ruling it produces and the facts of the situation in which it arises.

Speculation, often inaccurate, abounds about how this strategy would work. One newspaper, for example, offered a common description that this approach would seek “a ruling from the Senate parliamentarian that the filibuster of executive nominations is unconstitutional.” Under long-standing Senate parliamentary precedent, however, the presiding officer does not decide such constitutional questions but submits them to the full Senate, where they are debatable and subject to Rule 22′s 60-vote requirement. A filibuster would then prevent solving this filibuster crisis. Should the chair rule in favor of a properly framed non-debatable point of order, Democrats would certainly appeal, but the majority could still sustain the ruling by voting for a non-debatable motion to table the appeal.

Democrats have threatened that, if the majority pursues a deliberate solution to this political and constitutional crisis, they will bring the entire Senate to a screeching halt. Perhaps they see this as way to further escalate the confirmation crisis, as the Senate cannot confirm judicial nominations if it can do nothing at all. No one, however, seriously believes that, if the partisan roles were reversed, Democrats – the ones who once proposed abolishing even legislative filibusters – would hesitate for a moment before changing Senate procedures to facilitate consideration of judicial nominations they favored.

6.  Challenge the filibuster in the courts as unconstitutional.  This is a good idea, but will take years.

A combination of options #1, #4 & #5 below would get a lot of through the Senate this year.  On everything else, force Republicans to vote to filibuster to get them on record.  If they lose on something, they can take it to the electorate and hammer Republicans on it.  Option #3 will never happen, but Option #2 would permit the change we voted for in 2008 to become a reality in 2011 (provided we vote for it again this November).

As Senator Hatch said in 2005:

As it has before, the Senate must change its procedures to properly balance majority rule and extended debate. That way, we can vigorously debate judicial nominations and still conduct the people’s business.

Substitute whatever issue you want for the words “judicial nominations.”  The principle is the same.  The people’s business has to get done.