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Context of 'October 31, 2005 - February 1, 2006: Alito Becomes Supreme Court Justice; Swings Balance of Court to Right'

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Headline from the New York Times regarding the ‘Roe’ decision.Headline from the New York Times regarding the ‘Roe’ decision. [Source: RubeReality (.com)]The US Supreme Court, in a 7-2 decision, legalizes abortion on a federal level in the landmark case of Roe v. Wade. The majority opinion is written by Justice Harry Blackmun; he is joined by Chief Justice Warren Burger and Justices William O. Douglas, William Brennan, Potter Stewart, Thurgood Marshall, and Lewis Powell. Justices Byron “Whizzer” White and William Rehnquist dissent from the opinion. Blackmun’s majority opinion finds that the 14th Amendment’s guarantees of personal liberty and previous decisions protecting privacy in family matters include a woman’s right to terminate her pregnancy. White’s dissent argues that the Court has “fashion[ed] and announce[d] a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invest[ed] that right with sufficient substance to override most existing state abortion statutes.” The decision does not make abortion freely available to women in any stage of pregnancy. It places the following constraints:
bullet No restrictions on availability are made during the first trimester (three months) of a woman’s pregnancy.
bullet Because of increased risks to a woman’s health during the second trimester, the state may regulate the abortion procedure only “in ways that are reasonably related to maternal health.”
bullet In the third and final trimester, since the rate of viability (live birth) is markedly greater than in the first two trimesters, the state can restrict or even prohibit abortions as it chooses, “except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
Originally brought to challenge a Texas law prohibiting abortions, the decision disallows a host of state and federal restrictions on abortion, and sparks an enormous controversy over the moral, religious, and legal viability of abortion that continues well into the 21st century. [ROE v. WADE, 410 US 113 (1973), 1/22/1973; CNN, 1/22/2003; National Abortion Federation, 2010] In a related case, Roe v. Bolton, the Court strikes down restrictions on facilities that can be used to provide abortions. The ruling leads to the establishment of so-called “abortion clinics.” [CBS News, 4/19/2007]

Entity Tags: Potter Stewart, Byron White, Lewis Powell, Harry Blackmun, William Rehnquist, US Supreme Court, William O. Douglas, Warren Burger, William Brennan, Thurgood Marshall

Timeline Tags: US Health Care, Civil Liberties

Edwin Meese.Edwin Meese. [Source: GQ (.com)]Attorney General Edwin Meese receives a report, “Separation of Powers: Legislative-Executive Relations.” Meese had commissioned the report from the Justice Department’s Domestic Policy Committee, an internal “think tank” staffed with hardline conservative scholars and policy advisers.
Recommendations for Restoring, Expanding Executive Power - The Meese report approvingly notes that “the strong leadership of President Reagan seems clearly to have ended the congressional resurgence of the 1970s.” It lays out recommendations for restoring the power taken from the executive branch after Watergate and Vietnam, and adding new powers besides. It recommends that the White House refuse to enforce laws and statutes that “unconstitutionally encroach upon the executive branch,” and for Reagan to veto more legislation and to use “signing statements” to state the White House’s position on newly passed laws. It also assails the 1972 War Powers Resolution and other laws that limit presidential power.
Reinterpreting the Separation of Powers and the Concept of 'Checks and Balances' - Perhaps most importantly, the Meese report claims that for 200 years, courts and scholars alike have misunderstood and misinterpreted the Founders’ intentions in positing the “separation of powers” system (see 1787 and 1793). The belief that the Constitution mandates three separate, co-equal branches of government—executive, judicial, and legislative—who wield overlapping areas of authority and work to keep each of the other branches from usurping too much power—a concept taught in school as “checks and balances”—is wrong, the report asserts. Instead, each branch has separate and independent sets of powers, and none of the three branches may tread or encroach on the others’ area of responsibility and authority. “The only ‘sharing of power’ is the sharing of the sum of all national government power,” the report claims. “But that is not joint shared, it is explicitly divided among the three branches.” According to the report, the White House should exercise total and unchallenged control of the executive branch, which, as reporter and author Charlie Savage will later explain, “could be conceived of as a unitary being with the president as its brain.” The concept of “checks and balances” is nothing more than an unconstitutional attempt by Congress to encroach on the rightful power of the executive. This theory of presidential function will soon be dubbed the “unitary executive theory,” a title adapted from a passage by Alexander Hamilton in the Federalist Papers. [Savage, 2007, pp. 47-48] Charles Fried, Reagan’s solicitor general during the second term, will later write that though the unitary executive theory displays “perfect logic” and a “beautiful symmetry,” it is difficult to defend, because it “is not literally compelled by the words of the Constitution. Nor did the framers’ intent compel this view.” [Savage, 2007, pp. 50]

Entity Tags: Charles Fried, Reagan administration, Domestic Policy Committee, US Department of Justice, Ronald Reagan, Edwin Meese, Charlie Savage

Timeline Tags: Civil Liberties

Clarence Thomas survives the Senate hearings to join the Supreme Court.Clarence Thomas survives the Senate hearings to join the Supreme Court. [Source: PBS]The full Senate votes to confirm Clarence Thomas (see July 2-August 28, 1991, October 8, 1991, and October 11-12, 1991) on a 52-48 vote, the lowest margin of victory by any Supreme Court nominee in US history. It is possible that some senators’ votes are influenced by a wash of “fast-action” polls reported by the White House, purporting to show that African-Americans overwhelmingly support Thomas, and a majority of citizens support Thomas’s confirmation. A year later, analysis proves those polls to be completely wrong. [Thomas Hearings Website, 8/1997; Dean, 2007, pp. 146-153] In 1992, Senator Joseph Biden (D-DE), a member of the Senate Judiciary Committee, will say: “That last hearing was not about Clarence Thomas. It was not about Anita Hill. It was about a massive power struggle going on in this country, a power struggle between women and men, and a power struggle between minoritites and the majority.” [Thomas Hearings Website, 8/1997]

Entity Tags: US Supreme Court, Joseph Biden, Bush administration (41), Clarence Thomas, Senate Judiciary Committee

Timeline Tags: Civil Liberties

Wisconsin Right to Life logo.Wisconsin Right to Life logo. [Source: Dane101 (.com)]After the passage of the Bipartisan Campaign Reform Act of 2002 (BCRA—see March 27, 2002), also known as the McCain-Feingold law after its original sponsors, and the 2003 McConnell Supreme Court decision that upheld the law (see December 10, 2003), corporations and labor unions are prohibited from airing ads that attack candidates but avoid specific language that turns the ads from general commercials into “campaign” ads within 30 days of a primary election or 60 days of a federal election. Wisconsin Right to Life (WRTL) comes to anti-abortion and anti-campaign finance lawyer James Bopp Jr. (see November 1980 and After) with a dilemma. The WRTL wants to run ads attacking Senator Russ Feingold (D-WI), a powerful advocate of abortion rights, for his record of opposing President Bush’s judicial nominees. It intends to use the ads as campaign attack ads against Feingold, but skirt the BCRA’s restrictions by not specifically discouraging votes for him, thereby giving the appearance of “issue” ads and thusly not running afoul of the BCRA. Bopp is worried that the McConnell decision, just rendered, would make the Court reluctant to reverse itself so quickly. Bopp knows that the McConnell decision was in response to a broad challenge to the BCRA that argued the law was unconstitutional in all circumstances. Bopp decides to challenge the BCRA on behalf of the WRTL on narrower grounds—to argue that the specific application of the BCRA in this instance would violate the group’s First Amendment rights. He decides not to file a complaint with the Federal Election Commission (FEC) because of that agency’s notoriously slow response time, but instead files a preemptive challenge in court objecting to the BCRA’s ban on “issue advertisements” in the weeks before elections. Bopp is encouraged by the prospects of a court challenge that may wend its way to the Supreme Court, as the “swing” vote in McConnell was Justice Sandra Day O’Connor, who has been succeeded by the more conservative Samuel Alito (see October 31, 2005 - February 1, 2006). [New Yorker, 5/21/2012] Bopp will prove to be correct, as the Supreme Court will find in WRTL’s favor (see June 25, 2007).

Entity Tags: Russell D. Feingold, Federal Election Commission, Bipartisan Campaign Reform Act of 2002, George W. Bush, Samuel Alito, James Bopp, Jr, Wisconsin Right to Life, US Supreme Court, Sandra Day O’Connor

Timeline Tags: Civil Liberties, 2004 Elections

John Roberts.John Roberts. [Source: In These Times]John Roberts is approved by the Senate to become the new chief justice of the US Supreme Court, replacing the recently deceased William Rehnquist (see September 5, 2005). Roberts, who once clerked for Rehnquist while Rehnquist was an associate justice, also served in the Reagan Justice Department and as an associate counsel to then-President Reagan. He was deputy solicitor general in the first Bush administration. George W. Bush appointed him to the DC Circuit Court in 2001. [White House, 9/29/2005] Roberts was originally nominated to succeed the retiring Sandra Day O’Connor, but when Rehnquist died, Bush quickly withdrew the nomination for associate justice and refiled Roberts’s name for chief justice.
Characteristics and History - Roberts appeals to conservatives for a number of reasons; he has a powerful legal intellect, is soft-spoken, personable, and telegenic, and has not been outspoken about his views on issues like abortion and the right to privacy. Law professor Stephen Wermiel, who knows Roberts well, said in July that Roberts is not “somebody who… comes off as gruff or overbearing, which some people will recall was a factor in the [Robert] Bork hearings in 1987” (see July 1-October 23, 1987). Wermiel called Roberts’s nomination “a stroke of brilliance on the White House’s part.” One area of controversy surrounds Roberts’s work with Governor Jeb Bush of Florida during the bitterly contested 2000 presidential election, where Roberts helped construct the strategies used in the Bush v. Gore case that awarded George W. Bush the presidency. Another is Roberts’s membership in the Federalist Society, an organization of conservative activist judges, lawyers, and legal thinkers. A third is his advocacy, during his time with the first Bush administration, for scrapping decades of law providing for the separation of church and state in order to allow prayer in public schools. [National Public Radio, 7/20/2005] Four days before President Bush nominated him to the Court, Roberts voted in favor of upholding the Bush administration’s assertions about its wartime powers in the case of Hamdan v. Rumsfeld (see June 30, 2006), ruling that Bush need not consult Congress before setting up military commissions, and ruling that Bush is not bound by the strictures of the Geneva Convention. Liberals are unhappy with his stance against abortion, his representation as a private attorney of corporate mining interests seeking to dodge environmental regulations and of businesses trying to evade affirmative action requirements, as well as his attempts to curb environmentalists’ efforts to save endangered species. In 2007, reporter Charlie Savage will write that while progressives and liberals busily attacked Roberts for his positions on various “hot-button” issues, “[a]lmost lost amid the hubbub was” Roberts’s “unwavering commitment to the [expansion of] presidential power,” dating back to his 1980-81 clerkship under Rehnquist and his tenure as a White House lawyer under Ronald Reagan (see June-July 1983, October 1983, February 13, 1984, and May 16, 1984). [Savage, 2007, pp. 251-255]
Quick Confirmation - The Senate agreed to expedite Roberts’s confirmation process in order to allow him to preside over the next session of the Supreme Court in October, and so gave its members little time to peruse his record. Roberts sailed through the Senate Judiciary Committee hearings, and is confirmed by a 78-22 vote. Roberts hit a brief snag when he divulged that he had met with Attorney General Alberto Gonzales just six days before hearing oral arguments in the Hamdan case, had met with Vice President Cheney and a select coterie of top White House officials while considering his verdict, and had met with Bush for the president’s final approval on the Court nomination the same day that he handed down his favorable ruling. Though 22 Democrats vote against his confirmation, because Roberts’s ascension to the Court does not change the ideological balance among the nine justices (Roberts is replacing the equally conservative Rehnquist), Senate Democrats decided not to filibuster his nomination. [Dean, 2007, pp. 154-155; Savage, 2007, pp. 252]

Entity Tags: US Department of Justice, Stephen Wermiel, Senate Judiciary Committee, Federalist Society, George W. Bush, Charlie Savage, John G. Roberts, Jr, US Supreme Court

Timeline Tags: Civil Liberties

Harriet Miers.Harriet Miers. [Source: Harpers.org]After President Bush successfully places conservative judge John Roberts as chief justice of the Supreme Court (see September 29, 2005), he names White House counsel and personal friend Harriet Miers to replace the retiring Sandra Day O’Connor on the Court.
Firestorm of Criticism - The media reacts adversely to this; Miers is said to be insufficiently qualified for the position and to have been chosen because of her loyalty to Bush. Her nomination is further derailed by opposition from hard-line conservatives, who do not believe she is conservative enough in her beliefs, particularly on abortion. Miers is certainly a weak choice from most viewpoints—she has no constitutional law experience and lacks a reputation as a strong legal thinker. She has never been a judge, nor even published an academic law journal article. Even conservative stalwart Robert Bork, who is still a center of controversy from his failed Court nomination (see July 1-October 23, 1987), calls Miers’s nomination “a disaster on every level.” When a letter Miers had written Bush for his birthday in 1997 is published in the media—in which Miers gushed over Bush in breathless, almost schoolgirlish prose, calling him “cool!” and “the best governor ever!”—the derision hits a fever pitch. When she submits a questionnaire to the Senate Judiciary Committee listing her background and qualifications for the job, a questionnaire almost devoid of pertinent and specific information, the ranking members of the committee threaten to have her do it over, a humiliation she avoids by withdrawing her name from consideration.
Trumped-Up Dispute over Executive Privilege - The Senate asks to see Miers’s White House memos to judge the quality of her legal work, and the White House refuses, citing executive privilege. Many view the dispute as a trumped-up conflict designed to allow the Bush administration to save what little face it can in the debacle; neoconservative columnist Charles Krauthammer had suggested engineering just such a “conflict” to stage “irreconcilable differences over documents” that would allow the Bush White House to withdraw Miers’s nomination over the issue.
Withdrawal - Miers indeed asks Bush to withdraw her nomination, and Bush cites the documents dispute in announcing the decision to pull Miers from consideration: “It is clear that senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House—disclosures that would undermine a president’s ability to receive candid counsel,” Bush says. “Harriet Miers’s decision demonstrates her deep respect for this essential aspect of the Constitutional separation of powers—and confirms my deep respect and admiration for her.” Bush settles on another nominee, Samuel Alito, to replace O’Connor (see October 31, 2005 - February 1, 2006). [Savage, 2007, pp. 262-266; Dean, 2007, pp. 155]
Staunch Advocate for Expanded Executive Power - In 2007, reporter and author Charlie Savage will write that, in his view, the Bush administration chose Miers for a simple reason: she is a staunch advocate for the continued expansion of presidential power. “Miers… could be counted on to embrace Bush’s expansive view of presidential powers,” he will write. Miers is quite loyal to Bush “and, through him, the institution he represented.” Miers’s adoration of Bush on a personal level would further guarantee her “solid support for any presidential claim of power that might come before the Court,” he will write. “Like Roberts before her, she was an executive branch lawyer who identified with the task of defending the prerogatives of the president.” On the questionnaire she submits to the Senate Judiciary Committee, Miers writes that as White House counsel, she has gained significant constitutional experience in “presidential prerogatives, the separation of powers, executive authority, and the constitutionality of proposed regulations and statutes.… My time serving in the White House, particularly as counsel to the president, has given me a fuller appreciation of the role of the separation of powers in maintaining our constitutional system. In that role, I have frequently dealt with matters concerning the nature and role of the executive power.” [Savage, 2007, pp. 265-267]

Entity Tags: US Supreme Court, John G. Roberts, Jr, Sandra Day O’Connor, Samuel Alito, Senate Judiciary Committee, Harriet E. Miers, Charlie Savage, George W. Bush, Bush administration (43), Charles Krauthammer, Robert Bork

Timeline Tags: Civil Liberties

President Bush, stung by the opposition from both left and right that derailed his nomination of Harriet Miers for the Supreme Court (see October 3-27, 2005), nominates appeals court judge Samuel Alito to the Court to replace the retiring Sandra Day O’Connor. [Dean, 2007, pp. 155-157]
Staunch Advocate of Expanding Presidential Power - Alito has impeccable credentials, especially in contrast to the widely derided Miers. He is a graduate of Yale Law School, a long-time member of the conservative Federalist Society, and has years of decisions behind him as an appellate court judge. He is a product of the Reagan-era Justice Department. Bush calls him “one of the most accomplished and respected judges in America.” He is a powerful anti-abortion advocate, and a staunch supporter of granting ever more power to the executive branch, especially at the expense of the legislative and judicial branches. During his time in the Reagan Justice Department, he worked on a project to “increase the power of the executive to shape the law.” In 2000 he called the “unitary executive theory” (see April 30, 1986) the “gospel according to the OLC,” the Justice Department’s Office of Legal Counsel, where he worked for four years, and said he was firmly committed to advancing that theory. [Savage, 2007, pp. 267-271]
Bland Facade at Hearings - Alito receives a unanimous “well qualified” assessment from the American Bar Association, and the Bush administration expects that his nomination will sail through the Senate confirmation hearings as quickly and painlessly as did Bush’s previous choice for the Court, John Roberts (see September 29, 2005). The hearings are more contentious than Bush would like, and former Nixon White House counsel John Dean will say in 2007 that Alito’s performance before the Judiciary Committee “only served to confirm that the entire process has become little more than a great charade.” Senator Edward Kennedy (D-MA), one of the longest-serving members of the committee, observes that the Bush administration believes—correctly—that it can nominate radical right-wing extremists to the Court virtually at will, “as long as their views were not well known,” and adds, “[T]he current White House [has] turned the effort to hide nominees’ views into an art form.” Like Roberts, Alito presents a bland, non-confrontational facade to the committee (see January 9-13, 2006), refusing to take a personal stance on any issue and giving the impression that, as Kennedy will say after Alito and Roberts begin their service on the Court, he would be “as neutral as a baseball umpire.… The men who promised to be neutral umpires look more and more like loyal members of the president’s team.” [Dean, 2007, pp. 155-157]
Party-Line Confirmation - After an attempt by Senators Kennedy and John Kerry (D-MA) to filibuster Alito’s confirmation fails, the Senate confirms Alito’s ascension to the Court by a near-party line 58-42 vote, the closest such vote since Clarence Thomas’s (see October 13, 1991). Senator Orrin Hatch (R-UT) condemns what he calls the “very bitter partisanship” over Alito’s nomination, and accuses Democrats of playing politics: “When you have a man who has the decency, the legal ability and the capacities that Judge Alito has treated this way, I think it’s despicable.” Alito, whose hardline conservative beliefs are sufficiently masked during the hearings, replaces the far more moderate O’Connor, who before her retirement made up the “moderate center” of the Court with Justices Anthony Kennedy and David Souter. Now Alito joins Thomas, Roberts, and Antonin Scalia to form a hard-right conservative bloc on the Court which, when joined by center-right conservative Kennedy, forms a nearly unshakable conservative majority. [CNN, 2/1/2006]
Overturning Roe? - Many believe that Alito gives the Court the fifth vote it needs to finally overturn the landmark abortion case Roe v. Wade (see January 22, 1973), a longtime goal of social conservatives that would go far to make abortions illegal in the US. [Slate, 10/31/2005]

Entity Tags: Orrin Hatch, Sandra Day O’Connor, Samuel Alito, John Dean, US Supreme Court, John G. Roberts, Jr, John Kerry, George W. Bush, Clarence Thomas, Anthony Kennedy, David Souter, Edward M. (“Ted”) Kennedy, Harriet E. Miers, Antonin Scalia

Timeline Tags: Civil Liberties

A Christian group sues a public library for preventing religious organizations from using its facilities to hold worship services. The library says it is following the constitutional separation of church and state. The Justice Department’s civil rights division (CRD) files a “friend of the court” brief on behalf of the Christian group, claiming that the library violated its civil rights. The brief is written by a 2004 political hire to the CRD, a former clerk for conservative Supreme Court Justice Samuel Alito (see October 31, 2005 - February 1, 2006) while he was an appeals court judge and a member of two groups that advocate integrating Catholic religious practices into law and society (see Fall 2002 and After). [Savage, 2007, pp. 298]

Entity Tags: US Department of Justice, Civil Rights Division (DOJ)

Timeline Tags: Civil Liberties

During the Senate hearings to confirm conservative jurist Samuel Alito to the Supreme Court, the questioning turns to Alito’s views on the “unitary executive” theory (January 1, 1992). The theory seems to have originated in the Reagan administration’s Justice Department (see April 30, 1986), where Alito worked in the Office of Legal Counsel.
Lawyer Testifies to Unitary Executive - Former Clinton White House counsel Beth Nolan testifies about the theory and its potential for dramatically revamping the power of the presidency: “‘Unitary executive’ is a small phrase with almost limitless import. At the very least, it embodies the concept of presidential control over all executive functions, including those that have traditionally been executed by ‘independent’ agencies and other actors not subject to the president’s direct control.… The phrase is also used to embrace expansive interpretations of the president’s substantive powers, and strong limits on the legislative and judicial branches.” Nolan cites a November 2000 speech by Alito to the Federalist Society, where Alito said in part, “the president is largely impervious to statutory law in the areas of foreign affairs, national security, and Congress is effectively powerless to act as a constraint against presidential aggrandizement in these areas.” [Dean, 2007, pp. 100-106] During the questioning session, Alito denies ever discussing the idea of inherent presidential powers during that speech.
Evasive Answers in Hearings - Senator Richard Durbin (D-IL) says in his opening statement that he intends to press Alito on his support for what Durbin calls “a marginal theory at best… yet one you’ve said you believe.” Durbin notes that the Bush administration has repeatedly cited the theory to justify its most controversial policies and decisions, particularly in conducting its war on terror. Senator Charles Schumer (D-NY) adds: “The president is not a king, free to take any action he chooses without limitation, by law.… In the area of executive power, Judge Alito, you have embraced and endorsed the theory of the unitary executive. Your deferential and absolutist view of separation of powers raises questions. Under this view, in times of war the president would, for instance, seem to have inherent authority to wiretap American citizens without a warrant, to ignore Congressional acts at will, or to take any other action he saw fit under his inherent powers. We need to know, when a president goes too far, will you be a check on his power or will you issue him a blank check to exercise whatever power alone he thinks appropriate?” [Savage, 2007, pp. 271-272] However, Alito refuses to address the issue in the hearings, giving what one journalist calls “either confused or less than candid” answers to questions concerning the subject.
Failure to Recall - During questioning, Alito turns aside inquiries about his avowed support for the unitary executive theory, saying he was merely talking about the idea that a president should have control over lesser executive branch officials, and was not referring to the usurpation of Congressional power by the executive. Further questions elicit nothing but a dry definition of the term. Asked about Supreme Court Justice Clarence Thomas’s stinging dissent in the 2004 Hamdi v. Rumsfeld case (see June 28, 2004), where Thomas wrote that the authors of the Constitution believed a unitary executive was essential to the implementation of US foreign policies, Alito says he does not recall Thomas’s mention of the phrase. Asked about Bush’s signing statement that attempted to invalidate the Detainee Treatment Act (see December 30, 2005), Alito merely recites the definition of a signing statement, and refuses to actually state his position on the issue (see February 6, 1986 and After). Senator Ted Kennedy (D-MA), disturbed by Alito’s refusal to address the subject, says he will vote against him in part because of Alito’s embrace of “the gospel of the unitary executive.” Kennedy cites one of the authors of the theory, law professor Steven Calabresi, one of the founders of the Federalist Society, who, Kennedy says, “acknowledged that, if the concept is implemented, it would produce a radical change in how the government operates.” [Dean, 2007, pp. 100-106; Savage, 2007, pp. 271-274]
ACLU Opposes Alito - The ACLU, for only the third time in its history, formally opposes Alito’s nomination, in part because of Alito’s embrace of the unitary executive theory of the presidency, citing Alito’s “expansive view of executive authority and a limited view of the judicial role in curbing abuses of that authority.” In its 86-year history, the ACLU has only opposed two other Court nominees: William Rehnquist and former Solicitor General Robert Bork. [American Civil Liberties Union, 1/9/2006]
Opposition Fails - However, none of this is effective. Alito is sworn in less than a month later, after Democrats in the Senate fail to successfully mount a filibuster against his confirmation. [CNN, 2/1/2006]

Entity Tags: Office of Legal Counsel (DOJ), Samuel Alito, Edward M. (“Ted”) Kennedy, Clarence Thomas, Beth Nolan, US Department of Justice, Bush administration (43), US Supreme Court, American Civil Liberties Union

Timeline Tags: Civil Liberties

The announcement that Supreme Court Justice David Souter is retiring is already sparking a tremendous fundraising effort among conservative opposition groups, according to the Congressional Quarterly. “This is a nuclear weapon for the conservatives out there,” says conservative fundraiser Dan Morgan. “When you do fundraising, there’s an emotional component in this, and boy the emotion is there magnified times 100.” President Obama is expected to choose a replacement for Souter who is somewhat left of center, a choice that will be portrayed by right-wing groups as a threat to their positions on abortion, gun rights, gay marriage, and property rights, among other “hot-button” social and legal issues (see May 26, 2009). The upshot: lots of money gathered to oppose Obama’s prospective nominee. “Although Souter may be a more difficult case to make as his voting record is center-left, it does open the door for discussion of who, and how left a replacement, President Obama may choose,” says veteran Republican fundraiser Linus Catignani. “It also gives clarity to the power of the presidency and generates lots of chatter regarding the fact that Obama may make up to four replacements in short order. That obviously paints a very scary picture for many conservatives.” Catignani says that when conservative Justices John Roberts and Samuel Alito (see September 29, 2005 and October 31, 2005 - February 1, 2006) were nominated, Republican fundraisers used them as touchstones for their efforts to gather money—that time in the interest of promoting and defending the nominees. Democrats used their nominations to raise funds in opposition, much as Republicans are doing now, and Democrats will use the nomination to raise funds in defense of Obama’s nominee. Souter’s replacement will energize and invigorate a flagging and dispirited conservative base, says former Democratic National Committee Chairman Steve Grossman. “This can be a catalyst properly handled that can get people back into a sense of stakeholdership.” It can also be used to energize Democrats to fund efforts to thwart the Republicans’ own efforts to derail the nomination. Morgan says: “The Supreme Court is great. That’s going to be mail, that’s going to be phone calls. The clients I work with are in meetings already. There are letters being written already.” [Congressional Quarterly, 5/1/2009]

Entity Tags: Linus Catignani, Barack Obama, David Souter, Sonia Sotomayor, Dan Morgan, Steve Grossman, US Supreme Court

Timeline Tags: Civil Liberties

Tom Goldstein, a veteran lawyer who maintains the Supreme Court-focused, nonpartisan “SCOTUSblog,” writes that Supreme Court nominee Sonia Sotomayor (see May 26, 2009) will be the focus of caricatures and character attacks from the right, just as Justices Samuel Alito (see October 31, 2005 - February 1, 2006) and John Roberts (see September 29, 2005) were from the left. Goldstein’s assessment is echoed by ABC’s “The Note,” an influential daily political newsletter. Goldstein, who has argued cases before the Court over 20 times, writes that barring some serious revelation of ethical violations, Sotomayor is almost guaranteed to be confirmed by the Senate, but before that, she will be subjected to attacks from what he calls “committed ideologues.” Few “mainstream Republican politicians will vocally join the criticism,” he predicts. In a political sense, it would be disastrous for Republicans to mount serious opposition to a Hispanic woman, or Latina. “To Hispanics, the nomination would be an absolutely historic landmark,” Goldstein writes. “It really is impossible to overstate its significance. The achievement of a lifetime appointment at the absolute highest levels of the government is a profound event for that community, which in turn is a vital electoral group now and in the future.” Such attacks would comprise “a strategy that risks exacting a very significant political cost among Hispanics and independent voters generally, assuming that the attacks aren’t backed up with considerable substance.” The attacks will come from any of four major areas, Goldstein predicts. [Tom Goldstein, 5/26/2009]
Attacks Led by Conservatives outside Congress - ABC’s Jonathan Karl agrees. He writes: “At the start, Senate Republicans will likely make innocuous statements about the need to thoroughly review her record, but make no mistake, GOP leaders, with a big assist from outside conservative groups, will wage a vigorous campaign against this nomination.… Senate Republicans don’t expect to defeat the Sotomayor nomination. But they hope to raise enough questions about the nomination to make it a tough vote for Democratic senators in more conservative states. They will also use the confirmation battle as an opportunity to motivate a demoralized Republican base” (see May 1, 2009). [ABC News, 5/26/2009]
Attacks on Sotomayor's Intellect - The first series of attacks, Goldstein writes, will focus on the claim that she “is not smart enough for the job.” He writes that this is a powerful line of argument with an equally strong potential for backlash, so it will be handled carefully and obliquely. Unfortunately for this position, he writes, “Sotomayor is in fact extremely intelligent.” She graduated at the top of her class at Princeton, and her judicial opinions “are thorough, well-reasoned, and clearly written. Nothing suggests she isn’t the match of the other Justices.” Goldstein’s predictions are reflected in a number of public columns and commentaries (see May 26, 2009, May 26, 2009, May 29, 2009, and May 31, 2009).
'Liberal Ideologue and Judicial Activist' - The second line of attack will be purely ideological, focusing on the claim that she is a “liberal ideologue” and a “judicial activist.” While Sotomayor would be on the left of the Court, Goldstein writes, she is hardly a radical liberal. She is very similar to the man she is slated to replace, Justice David Souter, as a moderate, centrist liberal. Her appellate opinions as reviewed by the Court put her squarely with the left-center wing of the current Court. Karl writes, “They will call her an ‘activist’ judge intent on making law from the bench, not interpreting law.” Their predictions are reflected in a number of public columns and commentaries (see May 26, 2009, May 26, 2009, May 26, 2009, May 26, 2009, May 28, 2009, May 28, 2009, May 29, 2009, May 29, 2009, and June 3, 2009).
Intolerant of Positions Contrary to Her Own - The third wave of attack will claim, Goldstein writes, that she is intolerant of positions with which she disagrees. Proponents of this line of attack will focus on a decision she wrote that upheld affirmative action laws to the detriment of white firefighters, on a panel appearance in which she acknowledged that appellate judges sometimes make public policy, and a speech where she talked about the role her gender and ethnicity played in her decision-making. They will also focus, Karl notes, on a 2002 speech where she said the sex and ethnic origin of a judge can affect their decisions. Sotomayor said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life” (see October 26, 2001). “These reeds are too thin for that characterization to take hold,” Goldstein writes. The public “is easily able to accept a judge’s recognition of the lawmaking effects of her decisions and the influences of her background. There just isn’t any remotely persuasive evidence that Judge Sotomayor acts lawlessly or anything of the sort.” Goldstein’s predictions are reflected in a number of public columns and commentaries (see May 26, 2009, May 26, 2009, May 29, 2009, and June 3, 2009). [ABC News, 5/26/2009; Tom Goldstein, 5/26/2009]
Personality Characteristics - The fourth wave of attacks will characterize her as, Goldstein writes, “gruff and impersonable,” based on some excerpts from oral arguments and a few anonymous criticisms voiced in the “Almanac of the Federal Judiciary.” Sotomayor can easily quash these attacks with a few well-turned statements in the public eye. From his own experiences arguing cases before the Court, Goldstein believes Sotomayor is similar in demeanor and temperment to Justices Roberts, Souter, and Antonin Scalia. Goldstein’s predictions are reflected in a number of public columns and commentaries (see May 27, 2009. May 29, 2009, and June 3, 2009).
Missed Line of Attack - Neither Goldstein nor Karl write about the direct attacks on Sotomayor’s race and gender that some conservatives will launch (see May 26, 2009, May 26, 2009, May 27, 2009, May 28, 2009, May 28, 2009, May 28, 2009. May 29, 2009, June 2, 2009, June 3, 2009, and June 5, 2009). Goldstein’s own analysis of Sotomayor’s rulings will thoroughly disprove the allegations of racial bias (see May 29, 2009).
Conclusion - Goldstein concludes, “All in all… her easy confirmation seems assured.” [Tom Goldstein, 5/26/2009]

Entity Tags: David Souter, Sonia Sotomayor, Jonathan Karl, US Supreme Court, Thomas Goldstein, ABC News

Timeline Tags: Domestic Propaganda

Salon columnist Glenn Greenwald notes that in 2006, conservative Supreme Court nominee Samuel Alito (see October 31, 2005 - February 1, 2006) made remarks about his ethnic identity influencing his decisions from the bench that are strikingly similar to those made in 2001 by Supreme Court nominee Sonia Sotomayor (see October 26, 2001 and May 26, 2009). Sotomayor is being called a “racist” by conservatives based on her remarks (see May 26, 2009, May 26, 2009, May 27, 2009, and May 28, 2009). In 2006, as Greenwald notes, Alito told the Senate Judiciary Committee: “[W]hen a case comes before me involving, let’s say, someone who is an immigrant—and we get an awful lot of immigration cases and naturalization cases—I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position. And so it’s my job to apply the law. It’s not my job to change the law or to bend the law to achieve any result. But when I look at those cases, I have to say to myself, and I do say to myself, ‘You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country.‘… When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.” Greenwald writes, “Anyone who is objecting now to Sotomayor’s alleged ‘empathy’ problem but who supported Sam Alito and never objected to this sort of thing ought to have their motives questioned (and the same is true for someone who claims that a person who overcame great odds to graduate at the top of their class at Princeton, graduate Yale Law School, and then spent time as a prosecutor, corporate lawyer, district court judge, and appellate court judge must have been chosen due to ‘identity politics’).” [Washington Post, 1/11/2006; Salon, 5/27/2009]

Entity Tags: Samuel Alito, Glenn Greenwald, US Supreme Court, Sonia Sotomayor, Senate Judiciary Committee

Timeline Tags: Domestic Propaganda

After meeting with Supreme Court nominee Sonia Sotomayor (see May 26, 2009), Senator Lindsey Graham (R-SC) says he has fundamental questions about her judicial philosophy and temperament, and adds he will likely not vote to confirm her to the high court. “I was very direct,” he tells reporters of his conversation with Sotomayor. “I have to decide how to play this game, quite frankly. If I use the same standard that Senator [Barack] Obama used, then I would not vote for you, quite frankly.” Graham is referring to votes cast by then-Senator Obama against Justices John Roberts (see September 29, 2005) and Samuel Alito (see October 31, 2005 - February 1, 2006) in which Graham asserts that Obama voted against them on ideological grounds. “He used a standard, I think, that makes it nearly impossible for a person from the opposite party to vote for the nominee,” Graham says. Many political observers feel that Graham is something of a bellwether of Republican sentiment; a former judge advocate general officer, Graham is considered one of the better legal minds in the party, and his opinion carries great weight with his colleagues. Other Republicans may follow his lead in coming out in public opposition to the nominee. Graham says he asked Sotomayor about her “wise Latina” comment (see October 26, 2001), but refuses to say how she responded. Graham also says he has questions about her temperament, saying that while she was friendly in the meeting, he cannot ignore other lawyers’ negative assessments of her personality (see May 4, 2009). “I think she does have the intellectual capacity to do the job,” Graham says. “But there’s a character problem. There’s a temperament problem that they—during the time they’ve had to be a judge, that they were more of an advocate than an impartial decider of the law. And I’ve got to find out, in my own mind” about her temperament. [Politico, 6/3/2009] On Fox News, Graham contradicts his earlier assessment, saying that Sotomayor has “sterling character.” [Think Progress, 6/3/2009]

Entity Tags: US Supreme Court, Lindsey Graham, Sonia Sotomayor

Timeline Tags: Domestic Propaganda

Supreme Court Justice Samuel Alito listens to President Obama’s State of the Union address.Supreme Court Justice Samuel Alito listens to President Obama’s State of the Union address. [Source: Renovo Media]President Obama sharply criticizes the recent Citizens United decision by the Supreme Court, giving corporations and unions the right to give unlimited and anonymous donations to organizations supporting or opposing political candidates (see January 21, 2010), during the annual State of the Union address. Obama gives the address to a joint session of Congress, with three Supreme Court members in attendance. “With all due deference to the separation of powers,” Obama says, “last week, the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections. I don’t think American elections should be bankrolled by America’s most powerful interests or, worse, by foreign entities. They should be decided by the American people. And I urge Democrats and Republicans to pass a bill that helps correct some of these problems.” Democrats in the chamber applaud Obama’s remarks, while Republicans do not. In his response, Justice Samuel Alito, one of the five conservatives on the Court who joined in the majority decision, shakes his head and mouths, “Not true, not true” (some lip readers will later claim that Alito says, “That’s not true”). It is highly unusual for a president to so directly criticize a Supreme Court ruling, especially in a State of the Union address. The next day, Vice President Joe Biden defends Obama’s remarks in an appearance on Good Morning America. Biden says: “The president didn’t question the integrity of the court. He questioned the judgment of it. I think [the ruling] was dead wrong and we have to correct it.” Supreme Court expert Lucas A. Powe says, “I can’t ever recall a president taking a swipe at the Supreme Court like that.” Experts say that the closest precedent they can find is President Franklin Roosevelt’s 1937 criticism of the Court in his address to Congress. Yale law professor Jack Balkin says, “The important thing to me is that the president thinks the Citizens United decision is important enough that he would include it.” Reactions are split along ideological lines. Senator Orrin Hatch (R-UT) calls Obama “rude” to criticize the Court’s verdict. Senator Russ Feingold (D-WI) calls Alito’s reaction “inappropriate.” Legal expert Barbara A. Perry of Sweet Briar College says both Obama and Alito were in the wrong, calling the interaction “an unfortunate display for both branches.” White House deputy press secretary Bill Burton says: “One of the great things about our democracy is that powerful members of the government at high levels can disagree in public and in private. This is one of those cases.” Alito refuses to comment. Alito and Obama have a contentious history. As a senator, Obama was one of the most outspoken voices against Alito’s confirmation as a Supreme Court justice (see October 31, 2005 - February 1, 2006), saying then of Alito, “[W]hen you look at his record—when it comes to his understanding of the Constitution, I have found that in almost every case, he consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding American’s individual rights.” For his part, Alito snubbed the formal visit paid by Obama and Biden to the Court. [New York Daily News, 1/28/2010; Washington Post, 1/28/2010] Months later, Obama’s warning will be proven to be correct, as a media investigation will show the US Chamber of Commerce using foreign monies to fund attack ads and other political activities under the cloak of the Citizens United decision (see October 2010).

Entity Tags: Jack Balkin, Barbara A. Perry, Barack Obama, Franklin Delano Roosevelt, US Congress, US Supreme Court, Samuel Alito, Orrin Hatch, Lucas A. (“Scot”) Powe, Joseph Biden, US Chamber of Commerce, Russell D. Feingold, Bill Burton

Timeline Tags: Civil Liberties

Legatus logo.Legatus logo. [Source: ProLife Dallas (.org)]Former President George W. Bush is honored by Legatus, a Florida-based Catholic group for business and civic leaders, for his opposition to reproductive rights during his presidency. Bush receives the “Cardinal John J. O’Connor Pro-Life Award,” named for the famously anti-abortion Catholic leader. The organization notes Bush’s opposition to stem-cell research, his executive order banning the use of federal funds for abortions (see November 5, 2003), his appointment of anti-abortion advocates to the Supreme Court (see October 31, 2005 - February 1, 2006 and September 29, 2005), and his designation of January 18, 2009 as “National Sanctity of Human Life Day.” The award is given at a private meeting in Dana Point, California. The event is only open to members of Legatus and their guests, and the registration fee is $1,475 per person. A Legatus official tells a reporter: “His appearance is going to be a private appearance on behalf of our organization. He will be delivering remarks for us and all of that will be a private presentation.” Event chairperson Kathleen Eaton says: “I’ve been speaking to a number of Legatus chapters about the summit, and people are really excited. It’s been a rough year on a number of fronts and they really need this shot in the arm. They want to come together to pray and learn more about what the church is saying on different issues.” Local pro-choice and peace groups mount a protest; one organizer, Sharon Tipton, tells a reporter: “Over one million Iraqi people have been killed, mostly women and children. Bush is responsible for over 5 million new orphans, and we just found out that Bush is receiving a pro-life award? This is outrageous!” [Catholic News Agency, 1/8/2010; Orange County Weekly, 2/3/2010]

Entity Tags: Sharon Tipton, Legatus, George W. Bush, Kathleen Eaton

Timeline Tags: US Health Care

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