Our Rights, Our Future

Culture Corner: More on Civil Rights and the Courts in Pop Culture

If you’ll permit us a brief detour from pop culture into a more scholarly, Supreme Court-loving culture (although the Supreme Court probably does constitute pop culture for many people) we thought it worth highlighting the biography of former Justice William J. Brennan published late last year. While NCRCR Director Juanne Renee Harris has acknowledged that Brennan was ‘no Jimmy Smits,’ there was still a good deal of intrigue to be found in this book...mixed in with a few hundred pages of dense but interesting case history. For those not yet born during the early days of the civil rights movement, the book provides a lot of context for what was going on in the judiciary and around the country during one of the most profound eras of social change in our country and in the decades that followed. So, if you are a Supreme Court watcher, find case law interesting, think Supreme Court justices are pop culture icons, or would just like to try something that looks at the civil rights movement from a different perspective, this book may be for you.

For a more detailed review of the book, see Dahlia Lithwick's piece in the New York Times.

The Culture Corner is a series of blog posts intended to be a forum for discussion of how pop culture treats issues of civil rights, social justice and the courts. Television, movie, theater and musical portrayals inform our understanding of these issues on a daily basis. Are these depictions accurate? Fair? Misleading? We welcome your thoughts. Please join in the discussion. 

(Photo by Chattanooga Endeavors Inc.) 

NCRCR Interview Series: Lower Court Nominations

Tricia Perry of the National Campaign to Restore Civil Rights spoke with Nan Aron of Alliance for Justice and Debra Fitzpatrick of The Infinity Project about the delay in confirming judges to federal trial and appeals courts. Listen in as they discuss the partisan conflict in the Senate and its impact on our judicial system.

Listen to the Campaign's previous interviews here.

NCRCR Interview Series: The Kagan Nomination

Tricia Perry of the National Campaign to Restore Civil Rights spoke with Alan Jenkins of The Opportunity Agenda and Sammie Moshenberg of the National Council of Jewish Women about Elena Kagan's nomination to the Supreme Court. Listen in as they highlight the importance of this week's confirmation hearings.

Guest Blogger: Senators, Start Asking Supreme Court Nominees the Right Questions.

By Richael Faithful

Today, President Obama announced the nomination of Elena Kagan to the Supreme Court. For the past few weeks, legal and political commentators have speculated widely about the President's prospective Court choices, potential procedural barriers facing judicial nominees, and have already been debating the candidate's pros and cons. Justice Stevens’ replacement -- the President’s second Supreme Court nomination during his short tenure -- is certainly significant. Recent Court decisions on corporate campaign spending, DNA evidence in criminal cases, and federal government voters’ rights enforcement, demonstrate the Roberts Court’s  hostility toward core civil rights principles. Many insist that a new Supreme Court Justice must be an individual who will maintain some ideological balance in the Court, blocking Justice Roberts’ assault on constitutional protections.

However, it can be argued that the nomination process itself, as it currently exists, impedes civil rights progress in the United States.

First, the current confirmation process dissuades the President from choosing the strongest candidates for the job -- nominees with truly robust pro-civil rights records. Before the process even begins, many excellent Supreme Court candidates decline nomination offers because they do not want to undergo the accompanying public scrutiny. In this media-driven age, many prospective candidates simply do not want to have every aspect of their lives turned over for scandal-fodder. Pro-civil rights candidates who have written progressive judicial opinions, those whose decisions reflect pro-civil rights philosophies, and/or those who have displayed pro-civil rights leanings that have nothing to do with their judicial records have come to be proverbial sitting ducks for character assassins. Although the confirmation process is not responsible for the current political environment, Senators often do not exercise prudential restraint in their questioning, arguably using the nominations venue for personal political grand-standing.  We cannot know for sure the number of outstanding potential nominees we have lost before the nominations process even started, due to the very nature of the process. 

Once a candidate is nominated, she or he faces the radicalization of their judicial persona by Senate members. Civil rights supporters are attacked by the Right as being “outside the mainstream” or “supportive of special rights.” Oftentimes these charges are heavily coded, as they were during Justice Sonia Sotomayor’s Senate confirmation. Justice Sotomayor underwent relentless criticism for her opinion in the well-known Ricci decision, which upheld settled employment discrimination law designed to protect minorities from systemic workplace bias through facially neutral practices. Senators made baseless charges that her opinion revealed some secret anti-white sentiment. These charges gained some traction among the white viewing public who are suspicious of certain civil rights policies, which some see as a form of government-sanctioned favoritism. In fact, this spin-campaign was so effective that it emboldened Senator Tom Coburn to make highly-inappropriate, racist statements about the distinguished judge. Such comments, in my opinion, are much more than faux-pas -- they are invitations to a powerful, mobilized political base and to the general public, asking them to marginalize civil rights issues as [undeserved ‘special rights’ that positively impact only a few].

Finally, the current confirmation process diminishes the relevance -- indeed, the importance -- of today’s civil rights movements. Nominees are routinely asked about their views on landmark cases, their stock answers tend to placate those who will only be satisfied by politically-correct answers. We know, of course, that the next Supreme Court Justice nominee supports Plessy v. Ferguson and Brown v. Board of Education. Professing allegiance to important yet old cases suggests that civil rights is an ancient agenda — one that was sought and achieved during the time of Dorothy Height’s prominence. The Senate’s disengagement with nominees on “live” civil rights issues allow nominees to slip into high-court seats with little accountability or knowledge about their true judicial philosophies. This has a very real impact on all of us; especially America’s most marginalized people. Senators rarely level sophisticated, fair-minded questions on modern civil rights issues such racial profiling against communities of color, women’s right to equal pay, government discrimination against lesbian, gay, bisexual, and transgender people, or the status of American Indian tribal sovereignty. Rather, they tend to hammer through hyper-partisan questions to either grand-stand on “their” issues or tip-toe into a “gotcha” moment. This sort of exchange does little to advance civil rights in this country.

The system of checks and balances serves as a procedural safeguard against executive branch abuse, however, the current nomination and confirmation process has negative implications for civil rights.  Courageous Senators, advocates, and members of the general public must push the President to choose a nominee with a solid civil rights record and a strong voice on the issues that affect us all.  Senators must delve into the nominee’s judicial record to ask pointed, non-partisan questions about their rationales. In doing so, they can more forcefully challenge  those who insist on portraying civil rights as a “special interest” legacy that is longer necessary, while  re-introducing congeniality and  restoring professionalism and integrity to the confirmation process.  Most importantly, Senators must be independent -- they must refuse to support nominees who are soft on civil rights regardless of party affiliation. Values-based tenacity is the true character of the modern civil rights movement. Now, we just need congressional leaders who exemplify that character. 

Richael Faithful is a second-year student at American University Washington College of Law. She is Editor-In-Chief of The Modern American, a legal publication dedicated to diversity and the law. She is also a former community organizer with the Virginia Organizing Project. As a law student she continues organize and advocate for radical, transformative change.

(Photo by dsearls.)

Justice Stevens to Retire from Supreme Court

Today, Justice John Paul Stevens announced that he will resign, calling an end to an illustrious 34 years with the Supreme Court.  Justice Stevens’ departure will give President Obama his second high court appointment, and set up a potential partisan election-year Senate confirmation battle.

While Stevens' resignation does not come as a complete surprise, the timing of his announcement is earlier than expected. In a letter to President Obama, Stevens noted, "It would be in the best interests of the court to have my successor appointed and confirmed well in advance of the commencement of the court's next term."

The New York Times reported on the trajectory of Stevens' career on the Court, stating that, beginning in 1994, "the language of his dissents started to become noticeably sharper, with a theme running through them: that the Supreme Court had lost touch with fundamental notions of fair play." Stevens will be remembered for his leadership in a time in which the Court has moved further and further away from equity.

Thank you, Justice Stevens -- you leave some impressive shoes to fill.

(Photo by NCinDC.)

Grammy Award Winner Alicia Keys and Comedian Margaret Cho Join the NCRCR 2010 Youth Contest

The National Campaign to Restore Civil Rights is happy to announce the addition of artist/humanitarian Alicia Keys and comedian/civil rights activist Margaret Cho to the panel of judges for its 2010 Contest, which asks young people across the country for their views on equality.  More information is available on the contest site.

NCRCR Interview Series: Salazar v. District of Columbia

Tricia Perry of the National Campaign to Restore Civil Rights spoke with Jane Perkins, Legal Director at the National Health Law Program (NHeLP), about the Salazar v. District of Columbia case regarding Medicaid provisions. Listen in as Perkins discusses the ongoing legal battle to ensure access to health care for children in low-income communities.

Perkins tied up the interview by reading part of a previous decision in the Salazar case:

This case is about people-children and adults who are sick, poor, and vulnerable-for whom life, in the memorable words of poet Langston Hughes, “ain't been no crystal stair”. It is written in the dry and bloodless language of “the law”-statistics, acronyms of agencies and bureaucratic entities, Supreme Court case names and quotes, official governmental reports, periodicity tables, etc. But let there be no forgetting the real people to whom this dry and bloodless language gives voice: anxious, working parents who are too poor to obtain medications or heart catheter procedures or lead poisoning screens for their children, AIDS patients unable to get treatment, elderly persons suffering from chronic conditions like diabetes and heart disease who require constant monitoring and medical attention. Behind every “fact” found herein is a human face and the reality of being poor in the richest nation on earth.

NCRCR on The Huffington Post

The Campaign had a piece published on The Huffington Post yesterday! Check it out!

Thoughts on International Law in US Courts: Our Constitution or Blackstone's?

Protect the Victim, Not the Aggressor

In 2002, the CIA came to suspect 39-year-old Canadian telecommunications engineer Maher Arar of having ties to Al-Qaeda. The CIA convinced the Canadian government to share information on Arar's whereabouts. While Arar was returning home to Canada from a vacation in Tunisia, transferring planes at Kennedy airport, he was taken into custody and held in New York for two weeks before being ushered off to a prison in Syria.  He was tortured and otherwise subjected to inhumane conditions for a year, and then released.

After returning to his home in Ottawa, Arar sought justice. He filed near-identical lawsuits in both Canada and the United States. In Canada, after an investigation, a judge confirmed that Arar had undergone intensive torture while in Syria.  It was also found that the initial allegation that Mr. Arar was a probable al-Qaeda terrorist had no substance. The judiciary also found that Canadian officials were 'unintentionally complicit' in overseas torture. A mediation was held with federal government officials and a near-record $10.5-million in damages was awarded to Arar and his family.

Despite the fact that both the Canadian and U.S. lawsuits were essentially the same -- and that the U.S. was actually responsible for Arar’s extraordinary rendition -- the lawsuit played out very differently in the U.S. courts. Firstly, a federal judge dismissed Arar’s U.S. suit in 2006, a decision that was affirmed in 2008 by a three-judge appeals panel. Then, in a surprising move, the full bench of judges on the Second Circuit Court of Appeals decided to hear the case. The 59-page ruling, released last week, concluded that Arar could not sue the officials involved in his rendition, namely former Attorney General John Ashcroft. The Second Circuit said that if a civil damages remedy were to be created, Congress would have to do it.

In the majority opinion, Judge Jacobs wrote that it was for the executive branch to “decide how to implement extraordinary rendition, and for the elected members of Congress — and not for us as judges — to decide whether an individual may seek compensation” from officials for a constitutional violation.  Funny, that sounds exactly like what the judiciary should be doing.

Judge Jacobs defended the court’s stance by saying that allowing suits against policymakers in rendition cases would “affect diplomacy, foreign policy and the security of the nation.” Is no one concerned with the integrity of our nation? Finally, Justice Jacobs said that administrations had practiced rendition since at least 1995, and judicial review would “offend the separation of powers.” Again, judicial review is supposed to provide the separation of powers, and should not offend it in any way.

The four judges who disagreed with the ruling were not shy about expressing their disappointment. Judge Calabresi wrote, “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.” He asserted that the majority opinion had gone astray in its “utter subservience to the executive branch.” Judge Calabresi further expressed his “conviction that in calmer times, wise people will ask themselves: How could such able and worthy judges have done that?” The American public should be asking that question now.

The Center for Constitutional Rights, which has spearheaded Arar’s case, issued the following statement on Arar’s behalf:

“After seven years of pain and hard struggle it was my hope that the court system would listen to my plea and act as an independent body from the executive branch. Unfortunately… the court system in the United States has become more or less a tool that the executive branch can easily manipulate through unfounded allegations and fear mongering. If anything, this decision is a loss to all Americans and to the rule of law.”

There is a good chance that Arar and his lawyers will appeal the decision to the Supreme Court; let’s keep our fingers crossed that our nation’s highest court will decide to protect the victim, not the aggressor.

(Photo by erokCom.)

Judges: Modern-Day Superheroes?

The state of California recently descended into such financial difficulties that British paper The Guardian questioned whether it might prove to be the first failed US state: “Desperate to pay off a crippling budget deficit, California is slashing spending in education and healthcare, laying off vast numbers of workers and forcing others to take unpaid leave.” The California Progress Report, a local forum for progressive advocates, listed the extent of permanent state budget cuts in social services as including developmental services, Medi-Cal, SSI/SSP (Supplemental Security Income/State Supplemental Payment Program), programs for senior citizens, mental health services, and programs for students with disabilities in community colleges.

Amidst the reductions, cutbacks in the In-Home Supportive Services (IHSS) program were particularly disappointing to disability advocates. The In-Home Supportive Services program currently serves approximately 450,000 children and adults with disabilities and mental health needs, people who are blind and low-income senior citizens. The Department of Health Care Services also plays a big role in overseeing the program for the state, because the program receives matching federal Medicaid (Medi-Cal) funding as well as state and county resources. The IHSS program is administered locally at the county level.

Beginning November 1st, the state of California decided to eliminate all IHSS services for an estimated 40,000 low-income senior citizens and people with disabilities. Another 90,000 people were slotted to lose services such as food shopping and assistance and help with laundry and housecleaning. These services are often crucial to a person’s ability to live independently, outside of more costly and generally inappropriate institutional settings.

Rather than let this happen, a coalition of lawyers and advocates filed a class action lawsuit on October 1st, in hope that the court would stop the cuts before they went into effect. The state had chosen October 19th as the date it would begin to inform the 130,000 people that they would be losing all or some of their services under the program.

In V.L. v Wagner, a federal judge named Claudia Wilken ruled that the state must suspend its proposed cuts to the IHSS program, because they would result in substantial harm, damage and injury. The judge objected to the arbitrary withdrawal of essential services, saying that the indicators that the state used to revise program eligibility were clearly not based on need, and, as such, “people could lose something irreplaceable – the ability to remain safely in their homes.” Judge Wilken argued that the plaintiffs were likely to show at trial that the cuts to services violate federal law.

Melinda Bird of Disability Rights California, the attorney leading the legal battle, spoke about the significance of the victory: “We are convinced a humanitarian disaster would have resulted from the precipitous and arbitrary withdrawal of essential services approved by the legislature and the administration in the budget, and are delighted that the Court agreed with us.”

This is a great example of the way in which our system of checks and balances works.  In this case, the court system came through to protect 130,000 Californians from an arbitrary government action that would have had real consequences for their well-being. Yet again, our access to justice makes a difference.

(Photo by Borya.)