Eric Holder Takes Up Arms

Eric Holder Take Up Arms

-Christopher Carroll

Attorney General Eric Holder is bent on addressing inequality in America. In a year that has proven difficult for the DOJ, Eric Holder is seemingly looking to make up for lost time.

Holder announced that the DOJ will file a lawsuit against the State of Texas over SB14, a “the strict voter identification law,” arguing that it violates Section 2 of the Voting Rights Act as well as the 14th and 15th Amendments of the United States Constitution.

Texas’ SB14, signed by Governor Rick Perry on May 27, requires voters to present valid photo identification at all polling places. Following the Supreme Court’s early summer decision to strike down Section Four of the Voting Rights Act, this type of legislation has proven to be extremely contentious. While proponents argue that bills like SB14 prevent voter fraud, adversaries charge that it unfairly discriminates against minorities, the elderly and the young.

Though Republican legislators in Texas, Governor Rick Perry included, complain that Holder’s decision is just the latest example of the “administration’s blatant disregard for the 10th Amendment,” many others allege that these laws are politically motivated. Many contend that the law, and others like it, are “adopted with the purpose, and will have the result, of denying or abridging the right to vote on account of race, color, or membership in a language minority group.”

Holder’s latest attack on inequality comes in the form of voter enfranchisement as states legislatures look to preserve political control and power. The new lawsuit follows Holder’s attack on mandatory minimums, long seen as overly harsh tools that disproportionately discriminate against minority offenders in the U.S. The United States of America is a country with incredible wealth and prosperity but with correspondingly cavernous gaps in inequality. These gaps will continue to widen as long as minorities, the needy, the young and the old are taken advantage of.

****

Eric Holder seems to be trying to leave his mark on the office of Attorney General. Rather than being remembered as the A.G who signed off on phone tapping, Mr. Holder seems to be actively addressing racial inequality that has for too long gone ignored.

The attention is a welcome relief. Inequality of all types is rampant in America. Social, economic, racial, educational and vocational inequality is a cancer on our communities and economies. By suing Texas, Holder is reemphasizing the need to address voter disenfranchisement in American politics, an issue that is both a cause and symptom of unequal treatment. American governments and politicians should be emphasizing voter participation, not discouraging it, and we seem to, at this moment at least, have an Attorney General who wants to hold American leaders up to true American standards.

The Politics of Lifetime Appointments

The Politics of Lifetime Appointments – As people ask about Justice Ginsberg‘s retirement, the idea of Lifetime Appointment is no longer insulating the Judiciary from political gamesmanship.

– Christopher Carroll

Lifetime appointments are not insulating the Supreme Court Justices from politics.  We should stop pretending that it does. Unusually intense national attention on the Supreme Court, driven by recent high profile Court decisions, has left many people asking a question with serious political ramifications: when will Ruth Bader Ginsberg call it a career?

The 80 year-old Ginsberg has led the liberal-leaning Justices since her appointment to the Supreme Court in 1993. She has been the champion of liberal ideology on the Court since the retirement of Justice Stevens in 2010, himself 90 years old when he hung up the robes. But with a democratic president in his second term, many a questioning when the best time for Ginsberg to retire might be whilst ensuring a solidly left-leaning Justice takes her place. Many people are starting to think that this could be that time.

Justice Ginsberg, to her credit, vociferously disagrees, believing that she will not step aside to accommodate President Obama’s desire to fill her seat so long as she is still mentally and physically “equipped to do the job.” But, as Jamelle Bouie astutely discusses in a July 5th (link#3) Washington Post opinion piece, the questions over Ginsberg’s retirement raise an undeniable problem, the practice of lifetime appointment doesn’t seem to work anymore.

****

Lifetime judicial appointments have been a hallmark of American Supreme Court law ever since it was vociferously argued for by Alexander Hamilton in Federalist #78. The intention of the practice was to protect the Judiciary from the Legislative and the Executive branches of the government and the popular opinion of the public. Without strong systemic protection, Hamilton feared that Judicial Review would cease to be based upon the Constitution, compromising the important role the Supreme Court has played in the balance of power in American democracy.

Lifelong appointments have certainly contributed to the Supreme Court’s extremely stable, authoritative and legitimate history in American democracy. However, it is telling that very few nations around the world have followed the American example. Perhaps they foresaw what Hamilton and the Founders did not: that even with lifelong appointments, judicial review and judicial appointments are extremely political.

It must be noted that those people calling for Ginsberg’s retirement are making a political miscalculation. Those who believe that Obama, a centrist by the account of many liberals, will pluck a younger version of Ginsberg from the sea of qualified individuals have not been tallying recent political history and are wrong for two reasons. First, it won’t happen, and second, Obama isn’t the type.

First, passing Judicial nominations has been historically difficult for this administration due to the misuse of the filibuster. There are countless important seats on important benches left currently unfilled because nominees cannot get a vote. Harry Reid’s moaning and “nuclear option” threats have thus far fallen on deaf ears. Additionally, using the “nuclear option,” a method of changing filibuster rules in order to pass confirmations with a simple majority, would do more damage to the legitimacy of the Court than any other action.

English: Harry Reid (D-NV), United States Senator from Nevada and Majority Leader of the United States Senate (Photo credit: Wikipedia)

Silent Filibuster – Senate (Photo credit: DonkeyHotey)

Second, President Obama has shown time and again that he is both a centrist and uncomfortable with controversial nominations. Every time he has picked (or even been rumored to pick) a high profile and polarizing figure to high office, he has backed off in the face of Republican outrage – see Susan Rice’s Secretary of State saga and the President’s failure to aid Sec. of State Chuck Hagel while in the confirmation process.

These two oversights aside, the debate over Ginsberg’s retirement is showing the nation that lifelong appointments no-longer insulate the Supreme Court from politics. Today, the President’s attempt to gain as much influence as possible by appointing the youngest judges they deem qualified, resulting in a highly polarized judicial body. Today, Justices are being asked when they will step down, not because their mental facilities are failing but because it is more convenient for one or another political party. Today, if Hamilton were alive, he would cringe. Today, though the Judiciary was meant to be a-political, it has become hyper-political.

Is it time to amend the Constitution and abandon lifetime appointments? Is it time to institute an age limit for Justices? Is it time to institute an age minimum for Justices? Whatever one’s particular feeling about these ideas, none are likely to be accomplished in the near or even distant future. Amending the Constitution is a uniquely difficult proposition (link#7), made harder by the hyper-polarized nature of the Senate and the House. But acknowledging that we have a problem is the first step.

Justice Ginsberg remains an extremely capable, intelligent and brilliant adjudicator who, with luck, will continue to serve this country with distinction. If President Obama and Democrats are worried about who will replace her, they should instead focus on Congressional and Senate elections and leave the Justices charged with checking the other two branches alone. When Ginsberg needs to retire, she will. Democrats shouldn’t try to force out a brilliant mind simply because this moment is easy. This moment, with this President and with this Congress, might be exactly the wrong time.

The Court’s Inconsistant Week and the Strengthening of Hamiltonian Review

 

The Court’s Inconsistent Week and the Strengthening of Hamiltonian Judicial Review – The Supreme Court’s VRA and DOMA decisions conflict with one another yet simultaneously strengthen the power of the State and the “letter of the law” school of judicial review

-Christopher Carroll

 

 

This past week, the Supreme Court was dangerously inconsistent in the way it treated the rights of minorities and the marginalized, it’s relationship with Congress. The emphasis placed upon a Hamiltonian “letter of the law” style of judicial review and the underscoring of the legislative power of the States and government, comes at the expense of individual citizens.

The Court found a way to act extremely conservatively, even while handing down a traditionally liberal decision. The strengthening of Hamiltonian style of judicial review, one where the letter of the law rather than interpretation of the law  is paramount in Court decisions should strike fear in those who hope to see emphasis place upon the rights of individuals, rather than the rights of the state.

The Court’s decisions on the Voting Rights Act, Defense of Marriage Act and Proposition 8 were remarkable, both for what they had in common and for what they didn’t.  All three decisions were remarkably activist, placing the Court well into the traitorous political tides of American domestic policy.  All three decisions concerned the unequal treatment of marginalized citizens. All three decisions lent substantial respect to the sovereignty and rights of the States. However, the Court was inconsistent in its treatment of the rights of individuals and in their relationship with Congress.

The VRA decision was extremely nuanced. The Court struck down an integral portion of the law, arguing that though the bill itself is not unconstitutional and has even been, in the words of Chief Justice Roberts, extremely effective, the guidelines are outmoded and unfairly discriminate against states that have, in the estimation of the Court, sufficiently addressed the discrimination that marked the period before the bill was enacted.

Protect the Voting Rights Act rally at the SCOTUS (Photo credit: SEIU International)

By striking down section 4 and deferring to an incapable Congress, the Court has effectively killed the entire Act, knowing that the chances that Congress agrees to new guidelines are extremely remote. Slimmer than the chances that the Chicago Cubs win this year’s World Series.

In doing this, they have enabled themselves to kill an unpopular bill among the GOP faithful under the legitimate pretext of protecting State’s rights and respecting Congress’s constitutional obligations and responsibilities.

The DOMA and Proposition 8 decisions were quite different. The cases themselves could have been approached much the way that the preceding VRA case was. The Court could have deferred to the law passed by Congress and a democratic President. The Court could have refused to rule on the cases, instead claiming that the plaintiffs did not have standing. Instead, the Court was able to strike a perfect balance between State and individual rights, while simultaneously rejecting past Congressional action and removing power from them.

As I wrote last week, the Court could have done serious damage to the progress towards marriage equality seen over the last decade. Had they gotten far in front of the nation, the resulting repercussions and conflict could have permanently damaged the movement, much the way Roe v. Wade has damaged a woman’s right to abortion in this country.Though the Court’s failure to assert that the marriage equality is a Constitutionally protected right has been poorly received by some,  the restraint shown by the Court is what makes the decision strong and inconsistent with the VRA decision just days before. By only giving federal rights to those couples legally married and letting the States arrive at marriage equality in due course, they have struck a balance between individual rights and state rights that was not accomplished in the earlier VRA decision.

The Court’s inconsistency in it’s treatment of both individual rights and of Congress, and its consistently conservative treatment of state rights, should dictate how issues are brought before them and how marriage equality activists should attempt to effect their agendas. Regardless of the issues at hand, in this political climate and with this conservative Court, the battles must be fought in the State legislatures. Today’s Court is far from socially activist or liberal, but is instead extremely conservative in it’s treatment of federalism, though is increasingly becoming more socially liberal within it’s conservative framework.

Alexander Hamilton. (Photo credit: Wikipedia)

In the end, the DOMA and Proposition 8 cases, though making liberals happy, represent a strengthening of the conservative ideology of today’s Supreme Court, strengthening Hamilton’s “letter of the law” vision of judicial review and weakening former Chief Justice Warren’s. Whether that is a good or a bad thing depends on your opinion about the place a Supreme or Constitutional Court should hold in society. There are pros and cons to both schools of thought, but the marginalized in our society should be weary, especially when oppression and popular public opinion coincide.