A Skeptical Court Hears Voting Rights Act Case

30 04 2009

Yesterday, a skeptical U.S. Supreme Court heard oral arguments on the constitutionality of a key provision of the Voting Rights Act that requires certain states and localities with a history of voting discrimination submit changes in voting procedures, or gain “pre-clearance,” by the federal government for approval.

The case involves a municipal utility district in Texas that wants to sidestep needing to comply with the provision because it claims the kind of discrimination that it once deterred no longer exists. Board member elections in the utility district require pre-clearance since the entire state of Texas falls under the jurisdiction of Section 5.

The case is called Northwest Austin Municipal Utility District No. 1 v. Holder.

Adam Liptak’s summary in the NYT of yesterday’s oral argument was spot on, especially his description of Justice Kennedy’s hostile line of questioning. And if his questioning is any indication, which in this case I think it is, Kennedy will likely write the majority or controlling opinion as he did in the Section 2 case earlier this year and erode much of Section 5, while of course noting that racial discrimination “is not ancient history.”

Perhaps, the real question here is how badly the Court will gut Section 5 and if it will introduce or demand that Congress create a more precise and less far reaching standard in determining which states and jurisdictions should be covered and why, even if in 2006 it reauthorized the Voting Rights Act only after it held 19 hearings and reviewed thousands of pages of testimony and documents.

Plus, a very curious exchange between Justice Scalia and Debo Aegbile from LDF during yesterday’s oral arguments.

Scalia actually suggested that simply because the VRA was cleared both chambers of Congress by wide margins, even if both houses and the Oval Office were controlled by Republicans at the time, we should be skeptical of its validity. In other words, we should be skeptical of the law, which has been reauthorized repeatedly by Congress, because it got too much support. Huh?

If we applied that same line of thinking to other laws enacted by Congress such as the American Disabilities Amendments Act that passed this fall and signed by a Republican president, then I suppose we should consider them invalid too. Or maybe we should consider the unanimous opinions like in Brown v. Board of Ed invalid because they also had too much support.

What happened to judicial modesty and due deference to legislative bodies that conservatives love to spout?

Here’s the exchange:

JUSTICE SCALIA: Mr. Adegbile, what was — I read it in the briefs, and I forget what it was. What was the vote on this 2006 extension — 98 to nothing in the Senate, and what was it in the House? Was –

MR. ADEGBILE: It was — it was 33 to 390, I believe.

JUSTICE SCALIA: 33 to 390. You know, the — the Israeli Supreme Court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there. Do you ever expect — do you ever seriously expect Congress to vote against a reextension of the Voting Rights Act? Do you really think that any incumbent would — would vote to do that?


JUSTICE SCALIA: Twenty-five years from now? Fifty years from now? When?

MR. ADEGBILE: Justice Scalia, I think some members of Congress did of course vote against the Act.

JUSTICE SCALIA: Thirty-three members of the House and nobody in the Senate.

MR. ADEGBILE: Thirty-three members of the House, indeed. But I think the — the reason that they voted for it is what’s more important. Congress did not assume that section 5 was necessary. It took a very careful examination to see how it was operating, and the determination was that in the absence of section 5, because of the repetitive violations, because of 620 objections — there was evidence that approximately 60 percent of those show some evidence of intentional discrimination.

If you take away the prophylaxis, the discrimination will return in a way that we don’t need to revisit. The history has been that voting discrimination manifests itself through repetitive efforts and…..

Besides Texas, eight other states are covered by the provision, including Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, and South Carolina. Most of Virginia and parts of California, Florida, Michigan, New Hampshire, New York, North Carolina and South Dakota are also covered.

Congress passed the Voting Rights Act of 1965 to eliminate discriminatory voting practices by state and local governments. The law has been renewed and amended several times since it was passed, most recently with a 25-year renewal in 2006 where it cleared the Senate by a 98-0 and the House 390-33.


Shepard Smith Condemns Torture

24 04 2009

Just fascinating. Sometimes Shepard Smith just surprises me.

And this:

Member States Reach Agreement on Anti-Racism Document

22 04 2009

The anti-racism Durban Review Conference on 21 April adopted its final outcome document. It has its flaws particularly some questionable free speech paragraphs and its vulnerable to the charge that it did not need to include language regarding foreign occupation, though there is no mention of Israel by name. There are also a lot of NGO groups that are understandably frustrated at how language about the transatlantic slave trade was watered down in the final out come document.

But considering what the previous drafts looked like this final outcome document is a dramatic improvement. What’s more, the NYT has correctly framed this as a victory for the UN process and a loss for Ahmedinejad and those who wanted to use the Israeli-Palestinian question to either overshadow all other global racial discrimination issues or not participate in the conference at all.

The adoption of the resolution by the committee that coordinates the conference ended months of negotiation that removed contentious clauses referring to Israel and Palestine and trying to make defamation of religion an offense against human rights.

The conference will formally adopt the document here on Friday, but it is no longer open to debate or amendment, diplomats said.

Announcing the adoption of the resolution to warm applause from delegates, the conference president, Amos Wako, who is from Kenya said: “What we have decided shows the outcome when you remain engaged in the process. It shows that boycotts do not assist.”

“This is very good news indeed,” said Navi Pillay, the United Nations human rights commissioner, who hosted the conference. “It’s the culmination of months of deliberation.”


Announcing the adoption of the resolution to warm applause from delegates, the conference president, Amos Wako, who is from Kenya said: “What we have decided shows the outcome when you remain engaged in the process. It shows that boycotts do not assist.”

I fully expect a lot of critics to focus on the language regarding foreign occupation and free expression. But in the meantime I think the administration has got to be reconsidering participating in the follow process, given how this turned out.

Plus, the outcome document is very progressive on a whole range of issues from calling for a aggressively punishing hate crimes to urging governments to embrace equal opportunity programs from establishing national human rights bodies to affirming the right to organize to calling for the humane treatment of migrant workers in addition to calling for the ratification of other U.N. social justice treaties.

On Prosecuting Bush’s Team of Torture Lawyers

20 04 2009

From the New York Times Editorial page:

At least Mr. Obama is not following Mr. Bush’s example of showy trials for the small fry — like Lynndie England of Abu Ghraib notoriety. But he has an obligation to pursue what is clear evidence of a government policy sanctioning the torture and abuse of prisoners — in violation of international law and the Constitution.

That investigation should start with the lawyers who wrote these sickening memos, including John Yoo, who now teaches law in California; Steven Bradbury, who was job-hunting when we last heard; and Mr. Bybee, who holds the lifetime seat on the federal appeals court that Mr. Bush rewarded him with.

Few, except the Obama administration itself, would quibble with what the New York Times is advocating. An official investigation followed by prosecution of those who authorized the use of torture should take place. But the question is when and by whom.

After all, President Obama has an ambitious wish list of legislative priorities inspired by the weight of several crises competing for his attention. That means that pursuing a high profile and public investigation into the abuses of person would almost certainly create a Congressional atmosphere so partisan that it would jeopardize his chances of passing a climate change bill, a health care reform bill, overhauling education No Child Left Behind, immigration reform, in addition to dealing with a likely Supreme Court vacancy even as he and his team struggle to nurse an ailing economy.

Of course, this does not preclude Congress itself from conducting its own low profile investigation while encouraging more open source reporting on the matter. Nor does it prevent certain state bar associations from disbarring the very lawyers who used legal fictions to circumvent the law.

In other words, Obama could allow others to make the case for him based on the record provided thus far over the course during the next few years. Over time pressure by certain Bush officials will mount and cause some of them to flip either because of the level of scrutiny involved, their pariah status within their respective fields, or maybe their conscience will eat at them.

That way provided there’s sufficient pressure from Congress and if the public develops an appetite for prosecuting senior Bush officials, which does not quite exist yet, the Obama administration could go in for the easy kill by appointing an independent prosecutor.

At minimum, it could set the stage for the creation of a Commission of Inquiry, as proposed by Chariman of the Senate Judicary Patrick Leahy. Certain individuals intimately involved in the torture regime could cooperate with the commission’s inquiry in exchange for some immunity.

Perhaps it would not satisfy many human rights advocates who want everyone responsible prosecuted now, but it would afford us an opportunity to learn from our mistakes.

Homeland Security Sees Uptick in Hate Group Recuritment

17 04 2009

A Department of Homeland Security report on the rise of right wing hate groups and extremism was leaked this week. The DHS report is called “Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment.”

Unsurprisingly, the report found that the spike in undocumented immigration, the current economic downtown, and the election of the first African American president have spurred their efforts in winning new recruits.

Not exactly news to many of us, but its different when you see this documented by the government.

Of course, much of the controversy surrounding the report has focused on how these groups recruit disgruntled military veterans that find it difficult to readjust to civilian life, but that’s far from the report’s central focus. And anyone who takes time to read it would soon discover that himself.

But even if some civil libertarians and conservatives raising concerns about whether or not the government should be monitoring political beliefs, I think this presents many civil and human rights advocates with an opportunity to to promote greater awareness about the rise of hate crimes and their clear, though often overlooked, relationship to hate speech. That’s not to say we should go out of our way to criminalize intolerant speech, but being vigilante about countering intolerant speech can be critical to reducing hate crimes.

The Local Law Enforcement Hate Crime Prevention Act, which seems like it will be introduced this session of Congress, would provide local authorities with more resources to combat hate crimes and give federal government jurisdiction over processing hate crimes in states where the current law is inadequate.

In my opinion, I think the key findings in the report include:

  • Over the past five years, various rightwing extremists, including militias and white supremacists, have adopted the immigration issue as a call to action, and recruiting tool. Debates over appropriate immigration levels and enforcement policy generally fall within the realm of protected political speech under the First Amendment, but in some cases, anti-immigration or strident pro-enforcement fervor has been directed against specific groups and has the potential to turn violent.
  • In contrast to the early 90s, the advent of the Internet and other information age technologies s has given domestic extremists greater access to information related to bomb-making, weapons training, and tactics, as well as targeting of individuals, organizations, and facilities, potentially making extremist individuals and groups more dangerous and the consequences of their violence more severe.
  • Lone wolves and small terrorist cells embracing violent rightwing extremist ideology are the most dangerous domestic terrorism threat in the United States. Information from law enforcement and nongovernmental organizations indicates lone wolves and small terrorist cells have shown intent—and, in some cases, the capability—to commit violent acts.
  • Most statements by rightwing extremists have been rhetorical, expressing concerns about the election of the first African American president, but stopping short of calls for violent action.
  • Historically, domestic rightwing extremists have feared, predicted, and anticipated a cataclysmic economic collapse in the United States. Conspiracy theories involving declarations of martial law, impending civil strife or racial conflict, suspension of the U.S. Constitution, and the creation of citizen detention camps often incorporate aspects of a failed economy.

Also, see Department of Homeland Secretary Janet Napolitano’s statement on the report here.

Kenn Starr Backs Harold Koh For State Gig

15 04 2009

That makes two. Ken Starr and Ted Olson, former Solicitor General under Bush the younger, have both endorsed President Obama’s nominee for State Department Legal Advisor Harold Koh. As some of you may know, Koh has come under attack from the likes of Glenn Beck and Jay Sekulow and their foot soldiers on the far right who have tried to portray Obama’s nominee as a nutty liberal looking to supplant American law with Sharia law and a threat to the “fundamental American principles of representative government.”

The baseless accusations have already been debunked by Dahilia Lithwick and others but now right wingers will now have to shout down their own. In a letter dated yesterday, Dean of Pepperdine Law School Ken Star said, “I am firmly convinced that Harold is extraordinarily well qualified to serve with great distinction in the post of Legal Advisor,” and Ted Olson who said he had “ the greatest respect for Harold Koh,” and added, “He’s a brilliant scholar and a man of great integrity.”

Part of the reason that conservatives have gone after Harold Koh, Dawn Johnsen, and other executive nominees is to set the stage for the larger battle over a Supreme Court nominee which may come as soon as this summer. Conservatives hope to target and tarnish as many people with SCOTUS nom resumes, like Koh, in an effort to eliminate them from contention but also to keep throwing red meat to their base to keep them engaged on issues that even vaguely have culture warrior significance.

Justice Ginsberg on Foreign Law

13 04 2009

From Jefferey Toobin at the New Yorker:

It looks like Harold Koh, President Obama’s nominee for legal adviser at the State Department, may turn out to be the first real confirmation fight in the new Administration. The controversy has been mentioned in a handful of newspapers, but there’s plenty of Internet fire on the anti-Koh, and pro-Koh, side.

The heart of the attack on Koh, who is now the dean of Yale Law School, is that he believes in “transnationalism,” which purportedly is the notion that American courts should honor and apply the laws of other nations in our courts.

I wonder if the so-called controversy over Koh’s transnationalism can be explained away by simply saying that if citing international law is good enough for the Justices on the U.S. Supreme Court, then it should be good enough for a legal adviser to the U.S. State Department. The Court has cited international law, which is not the same as being bound by it, in cases involving gay rights and the death penalty and the sky did not fall, though it did anger the right.

Adam Liptak reported in the NYT on Saturday that Justice Ruth Ginsberg thinks the debate concerning international is sorta ridiculous.

In her remarks, Justice Ginsburg discussed a decision by the Israeli Supreme Court concerning the use of torture to obtain information from people suspected of terrorism.

“The police think that a suspect they have apprehended knows where and when a bomb is going to go off,” she said, describing the question presented in the case. “Can the police use torture to extract that information? And in an eloquent decision by Aharon Barak, then the chief justice of Israel, the court said: ‘Torture? Never.’ ”

The message of the decision, Justice Ginsburg said, was “that we could hand our enemies no greater victory than to come to look like that enemy in our disregard for human dignity.” Then she asked, “Now why should I not read that opinion and be affected by its tremendous persuasive value?”

My sentiments exactly.

Side note: Toobin, apparently has not been following the battles over President Obama’s other executive nominees fight that closely, since he seems to think that Koh would be the first real confirmation fight.
Dawn Johnsen, Obama’s nominee to head the Office of Legal Counsel in the Justice Department, has come under attack from the far right for being a lawyer for NARAL at one point and her unsparing criticism of Bush’s warrantless wiretapping program and use of torture to extract intelligence information from detainees. Republicans are threatening to filibuster her nomination.

Another nominee, Thomas Saenz, was in the pipeline, though never formally announced, to be Obama’s top civil rights enforcer at the Justice Department until the anti-immigrant right sunk his nomination for his work on successfully challenging local ordinances banning day laborers from city streets and of California’s Proposition 187, a 1994 ballot measure that prevented undocumented immigrants from taking advantage of certain social services.