Archive for the ‘Government’ Category

Out with a Whimper

Written by Rebecca Zietlow on July 2nd, 2009

The Supreme Court’s season is over, and it ended not with a bang, but a whimper.  The Court did not strike down the Voting Rights Act after all (thank goodness).  The Court ruled in favor of the white firefighters in Ricci, as expected, but avoided the Equal Protection issue.  And, despite disparaging remarks and jokes during the oral argument over the case, eight members of the Court agreed that strip search of a 13 year girl alleged to have brought an Ibuprofen pill to school violated the 4th Amendment.  As many commentators have noted, the Court is moving to the right, but it could have moved a lot farther.

Why the whimper instead of a bang?  Could it be that members of the Court are influenced by politics?  The most interesting case to me is the strip search case.  Justice Ginsburg, the only woman on the Supreme Court, was open about her concern that her male colleagues were insufficiently attentive to the sensitivities of a 13 year old girl.  Did the fact that  another woman, Sonya Sotomayor, sits in the wings to be confirmed to the Court, have an impact of those colleagues as they mulled over that case?  Did the fact that Sotomayor is a person of color influence the members of the Court considering overruling the landmark Voting Rights Act even as conservative politicians were accusing Sotomayor of being a racist?  We will never know.

Why Sotomayor Is a Good Choice

Written by Rebecca Zietlow on May 28th, 2009

There are three reasons why I think Sonia Sotomayor is a good choice to be the next Justice on the United States Supreme Court.  First, her nomination is historic.  If confirmed, Justice Sotomayor will be the first Latina, the first woman of color, and only the third woman to serve on the United States Supreme Court (not to mention the first Supreme Court Justice to grow up in a public housing project!).  Second, Sotomayor is an incredibly accomplished, brilliant woman who is highly qualified for the job.  Third, Judge Sotomayor has the right temperament and philosophy for the Supreme Court today.

It is difficult to overstate the historic significance of President Obama’s choice of a Latina woman as his first nomination to the Susotomayor.jpgpreme Court.   To illustrate my point, consider this:   When I was a student at Yale Law School in the late 1980s, the law students held a one day strike for diversity, calling for diversity in the faculty, student body and law school curriculum.  To protest the fact that at that time Yale had never had a woman of color on the faculty, a classmate of mine created paper effigies of all the faculty members and hung them from the ceiling of the law school.  Hanging from the ceiling was a long row of white men, several white women, and several men of color.  No women of color.  Now imagine if my classmate had done the same with the United States Supreme Court throughout our history.  Out of 115 paper effigies (based on my unofficial count), 111 of them would be white men, two would Black men, and two white women.  Again, no women of color.

The fact that Justice Sotomayor would be the first Latina and the first woman of color ever to serve on the United States Supreme Court, and a person who comes from a low income background, matters because the Supreme Court makes decisions that affect all of our lives, including the 52% of us who are women and the 26% of us who are non-white.  It matters because life experience, including our gender, race and economic backgrounds, affects how all of us view the world, and how judges view the law.  This does not mean that Justice Sotomayor would always rule in favor of women, people of color (regardless of their gender), and poor people, who appear before the Court.  Her record on the lower federal courts makes this abundantly clear.  What it does mean is that Justice Sotomayor would bring a life experience to the Court that would enrich the Court’s consideration of legal issues and make the Court more connected to the impact of its decisions on all of us.

Second, Justice Sotomayor’s qualifications are outstanding.  She graduated at the top of her class from Princeton, one of the nation’s top universities and an incredibly competetive institution.  She excelled as well at Yale Law School, where she served on the Law Review.  Sotomayor has extensive experience as a prosecutor and as a private attorney, and 17 years as a federal judge.  I am incredulous that anyone could argue that Sotomayor lacks the credentials to be a Supreme Court justice.  These critiques simply have no foundation.  Sotomayor’s record speaks for itself.

Finally, I believe that Sotomayor has the right temperament for the Court at this time.  This is where I differ from those liberals who have argued that they would prefer someone with a stronger ideological focus.   By all accounts, Sotomayor is a liberal to moderate person who enjoys engaging legal arguments and listens to all sides before making decisions.  However, she is no shrinking violet and is not likely to be intimidated by the more conservative, more senior members of the Court.  (After all, the woman grew up in a Bronx housing project!!!)

Sotomayor’s record is also so far from the “liberal activist” label that conservative critics are trying to link to her that the label simply won’t stick.  It’s about time that we recognized that (as I have argued in previous columns) the only activism that has occurred in  the United States Supreme Court in the past twenty or so years has been conservative retrenchment against progressive political policies.  If confirmed, Sotomayor will bring strong experience, diversity, and a balanced approach to the law that belies that conservative activism.   As a person with progressive politics who is sick and tired of the activism of the conservative Rehnquist and Roberts Courts, I say, bring Sotomayor on!

Consider Single Payer

Written by Rebecca Zietlow on May 21st, 2009

After years of woeful neglect, health care reform is now thankfully at the top of the national agenda.  What’s missing from President Obama’s and Congress’ consideration?  A single payer health care system.  This omission is a huge mistake, since it is likely that only a single payer health care system  can solve our nation’s health care woes.

There are two reasons why our nation needs health care reform now: The first is the cost, and theimages2.jpg second is the lack of accessibility of our current system.   Shockingly, 50 million people in our country currently lack health insurance.  At the same time, those of us fortunate enough to have health insurance face mounting costs and cuts in coverage by our employers.  Meanwhile, the cost of medical care in the United States is twice the average in other industrialized nations.  Patients aren’t the only one bearing these costs, either.  From small business owners to General Motors, American employers are being crippled by their responsibilities to pay health insurance premiums.

Why consider single payer?  Because it is the only system that would solve both flaws in our current health care system by expanding access and lowering costs.  Expanding the risk pool of a single insurance carrier to include every person in the country would reduce the costs of health care to all of us because it would include miliions of people who are now healthy but simply unable to afford insurance.  Moreover, if the insurer is the government rather than the private insurance industry, we can save as much as a third of our current health care costs, which currently go to funding medical insurance companies.  Finally, if everyone is insured, everybody will have access to cheaper preventive health care instead of waiting until they are so sick they have to go to the emergency room and rely on expensive life saving measures.

The single payer solution is so clear, no wonder 59% of physicians and 62% of Americans support it!  Yet despite this support, a single payer plan is not currently being considered by President Obama, nor is Representative Conyers’ bill, H.R. 676, receiving much consideration in Congress.  Why not?  The health care insurance industry is a powerful lobby, it’s far too easy for opponents of single payer to demonize it as “socialized medicine” and therefore Un-American, and many are concerned about raising taxes to fund a single payer system.  While it is not possible to just make the insurance lobby go away, the other two objections are easily answered.

Let’s make this clear – single payer is not socialized medicine.  Under a single payer system, the government would not run the health care system, it would just fund the system that already exists, absent the private insurance companies.  Our health care system would be similar to that of every other industrialized nation.  (As an aside, those other nations are home to industries that compete with our American companies without being saddled with health care costs.)

Nor would a single payer system cost more than the existing system.  As I have explained, it would cost at least 30% less than the existing system.  The difference would be that our health care would be funded by tax dollars instead of employer subsidies, employee co-payments and deductibles, and payments by uninsured patients.  Yes, our taxes would go up, but taxes would be our only health care costs.  American businesses would be able to compete on the international market, and small business owners would be able to stay in business.  The millions of dollars saved by employers could be invested in raising salaries of existing employees and hiring new employees.

Imagine being able to go to the doctor whenever you need one without worrying about paying the full bill, a co-payment or a deductable.  Imagine not fearing bankruptcy if God forbid you or a member of your family suffers from a catastrophic illness or injury.  Imagine not seeing your real wages go down every year as your meager raise is eaten up by higher medical expenses.  Imagine an economy in which small businesses flourish and larger corporations can compete in the international market.  All of this is possible, and it is within out reach – if our elected representatives will consider the single payer solution.

The Ideal Supreme Court Nominee

Written by Rebecca Zietlow on May 7th, 2009

As a constitutional law professor who spends so much of my time analyzing Supreme Court opinions, I cannot resist opining on what I believe to be the most important qualifications of the next Supreme Court justice.  First, the qualifications which don’t matter as much to me: I would not apply any litmus test on any particular subject, and I neither expect nor particularly want the next Supremtmpphpeiswgm1.jpge Court justice to be able to restore the liberal activism of the Warren Court.  Instead, I agree with President Obama that the most important qualification should be empathy – the ability to understand and relate to the way that the law actually affects real people.  The current Supreme Court has shown a blind eye towards average working people in cases such as the Lilly Ledbetter case, instead consistently favoring the interests of big business.  The importance of empathy is one of the reasons why I argued two weeks ago that the President should appoint more women to the Supreme Court.  To be clear, this is not because I believe that women are inherrently more empathetic, but because Supreme Court justices, like everyone else, see the world through the eyes of their own personal experience.  Therefore, the more different experiences that the Justices bring to the Court, the better.   For the same reason, I hope that President Obama considers racial diversity in his decision-making process, and favors those with less privileged backgrounds.

The second most important characteristic of the ideal Supreme Court nominee would be that he or she has some respect for the political process, and for the ability of lawmakers to consider constitutional values and limitations when they are making laws.  The members of the current Supreme Court have shown a remarkable disrespect for legislatures, including Congress, for example striking down civil rights legislation in the name of separation of powers and sovereign immunity.  This disrespect may be due to the fact that none of the current members of the Supreme Court have ever held political office, and only one, Justice Stephen Breyer, has worked within that process, as special counsel for the Senate Judiciary Committee.  Such experience would not be a pre-requisite for the ideal Supreme Court nominee, but it would certainly be a plus.

Third, the ideal Supreme Court nominee whould have a good knowledge of history, especially United States history.  It should be a person who understands the momentous transformation that our country and our constitution underwent during Reconstruction, a person who appreciates the persistent and overwhelming prejudice that African Americans have suffered in our country since then.

Finally, the ideal Supreme Court nominee must be both young and healthy.  This observation is not “agist,” but pragmatic.  Supreme Court nominations are arguably the means by which the President makes the most lasting impression on the country, as both Presidents Bush recognized when they nominated young Justices who are likely to be around for many years.  I have every hope that President Obama will appoint an excellent, qualified person to the Supreme Court, one who can use his or her persuasive powers to start to move the Court away from its rightward trajectory of recent years.  Whoeever it is, I want that person to be around for a long time.

Specter’s Defection & the Separation of Powers

Written by Robert Justin Lipkin on May 1st, 2009

There’s a conventional understanding of why Arlen Specter defected. Basically, he defected because the Republican Party is on the cusp of imploding. There different versions of this story, one in which Specter is a cowardly villain the other which blames the contraction of the Republican Party.  But suppose there’s another reason.  Suppose Specter believed some of the damage the former administration did to American constitutionalism needs to be reversed, and only a President with the constitutional acumen and moral sensibilities of Obama would conceivably be sympathetic to this rectification. Here’s the tease line:

In the seven and a half years since September 11, the United States has witnessed one of the greatest expansions of executive authority in its history, at the expense of the constitutionally mandated separation of powers. President Obama, as only the third sitting senator to be elected president in American history, and the first since John F. Kennedy, may be more likely to respect the separation of powers than President Bush was. But rather than put my faith in any president to restrain the executive branch, I intend to take several concrete steps, which I hope the new president will support.

What follows is a description of some of the more blatant assaults by the previous administration of the constitutional principle of “checks and balances.” (Though Specter’s fulsome emphasis on how important his own role in these matters was raises legitimate skepticism about his motives.) Here’s specter’s plan for the future.

These experiences have crystallized for me the need for Congress and the courts to reassert themselves in our system of checks and balances. The bills I have outlined are important steps in that process. Equally important is vigorous congressional oversight of the executive branch. This oversight must extend well beyond the problems of national security, especially as we cede more and more authority over our economy to government officials.

As for curbing executive branch excesses from within, I hope President Obama lives up to his campaign promise of change. His recent signing statements have not been encouraging. Adding to the feeling of déjà vu is TheWashington Post ‘s report that the new administration has reasserted the “state secrets” privilege to block lawsuits challenging controversial policies like warrantless wiretapping: “Obama has not only maintained the Bush administration approach, but [in one such case] the dispute has intensified.” Government lawyers are now asserting that the US Circuit Court in San Francisco, which is hearing the case, lacks authority to compel disclosure of secret documents, and are “warning” that the government might “spirit away” the material before the court can release it to the litigants. I doubt that the Democratic majority, which was so eager to decry expansions of executive authority under President Bush, will still be as interested in the problem with a Democratic president in office. I will continue the fight whatever happens.

I think (I hope) that Specter’s last remark misses the mark. Few Democrats, indeed, few Republicans, are as politically psychopathic as Bush-Cheney. They were egregiously insensitive about essential constitutional values and had no appreciation for the fundamental values rendering America, in aspiration if not always in practice, a progressive beacon for the twenty-first century.

The real action lies with how the Republican Party, without Specter, will reconstruct itself, as it surely will, to meet the challenges they face with the death of traditional and woefully ineffective laissez-faire economics along with their commitment to tyrannical social policies.

For a mournful account of the Republican Party’s turn to the exclusive ultra Right click here.

It’s not entirely clear why President Obama so gleefully welcomed Senator Specter to the Democratic Party. Wouldn’t it have been preferable for the Democrats to nominate an outstanding, young Democratic man or woman who could beat Specter, but more importantly, someone who could beat Toomey because Toomey surely would have beaten Specter? How does Specter’s defection to the Democratic Party benefit Democrats?

The Big Lie?

Written by Rebecca Zietlow on April 30th, 2009

Just before the United States invaded Iraq in 2003, I had an argument with a friend of mine who supported the invasion.  I tocheney.jpgld him that I did not think there was any reason for the United States to invade Iraq.  He asked me whether I thought that the President was lying about weapons of mass destruction, and was astounded by my answer.  My friend was astonished that I believed that  the President of the United States, leader of the free world, would lie to the American People about such an important issue.   Oh, what an innocent time that seems now!  Now, we know that not only was President Bush lying then, but that members of his administration continued to lie about the reasons we were in Iraq after it became clear that there were no weapons of mass destruction.  Most notably, Vice President Cheney spoke often about the supposed link between Sadam Hussein and the 9/11 attacks, even though no such link was ever established.

The release of the torture memos last week gives us an upsetting glimpse into the inner workings of the Bush administration during that time, and may provide evidence that the administration was involved in an even bigger lie.  Why would the US intelligence officials use torture on terrorist suspects when not only were those methods prohibited by US and international law, but those methods had never been proven to work better than other interrogation techniques?  We have now learned that the torture methods used by US intelligence officials were modelled on methods used by the North Koreans to illicit false confessions from captured members of the US military.  Why would our government want to illict false information?  Could it be that our government used torture to try to manufacture a link between Iraq and 9/11, betwee Al Qaeda and Sadam Hussein?  If so, then our government was using inhumane interrogation methods such as waterboarding, that we have prosecuted as war crimes in the past, not to protect us, but to keep us in the dark.  It’s a shocking proposition, to be sure, but given what we have learned, we need proof that it’s not true.  That’s why we need an investigation into the Bush administration’s torture policies – to make sure our leaders didn’t use torture to support their lies, and to keep from telling the Big Lie to us again in the future.

Arlen Specter and a Postpartisan Landscape

Written by Henry L. Chambers, Jr. on April 29th, 2009

The Democrats have gone from minority status to almost filibuster-proof majority status in the Senate with blazing speed, at least in political years.  The essential switch in party affiliation by Sen. Arlen Specterspecter.jpg coupled with the anticipated eventual victory of Al Franken in Minnesota has nearly made the transformation complete.  The irony is in how many Republicans have changed their tune with respect to the power that should be accorded a majority.  Many Republicans seemed to argue that 51 Republican votes in the Senate should lead to the exercise of 100% of power.  When Democrats gained 51 votes in the Senate, the Republican mantra became shared power.  The claim was that power should be shared because America was essentially equally divided.  Indeed, even when Democrats reached the high-50s in number of Senators, the Republican position appeared to be that using the filibuster to enforce shared power was perfectly acceptable.  Using the filibuster until Democrats shared power or put some Republican ideas into specific pieces of legislation was deemed perfectly appropriate.  The question now becomes: What power should the Republicans be able to exercise in a Senate in which Democrats have a filibuster-proof majority?

Republicans, as a political group, should not be able to exercise much pure power vis-a-vis the Democrats.  Of course, individual senators and certain groups of senators with ideologically similar positions on specific issues should be able to exercise influence on particular matters.  As a consequence of the numerical paucity of Republicans, Democrats arguably should stop listening to Republicans as Republicans and should start listening to individual Republican senators or mixed groups of Democratic and Republican senators as members of the club who might have good ideas.  Ironically, if Democrats take the ideas of these groups seriously, Sen. Specter’s switch in party affiliation may be the first step to a postpartisan Senate.

Do we Need More Women on The Supreme Court?

Written by Rebecca Zietlow on April 23rd, 2009

Throughout the entire history of the United States Supreme Court, only two women, Justices Sandra Day O’Connor and Ruth Bader Ginsburg, have ever served on that institution.  Since O’Connor retired and was replacetmpphpzkofoc1.jpgd by Samuel Alito, there is only one woman on the Court.  This is so despite the fact that women make up a slight majority of the population,  approximately 34% of lawyers, and 43% of judges.  With the possibility of several Justices (perhaps including Justice Ginsburg herself) retiring from the Court in the near future, it is worth considering whether we need more women on the Supreme Court.  The answer to this question is far from obvious.  Arguably, we need the best possible people on the Court, regardless of their gender.  Moreover, some might argue that it would be discriminatory to prefer a candidate based on her gender.  However, these arguments do not take into account what many of us know as a matter of instinct – judges, like all other people, view issues through the lens of their own life experience and predilections.  In the Twenty-First Century, is it really OK to have only one person of nine on the top court in the land who has experienced life and the law as a woman, like over half of our population?

A couple of recent case have raised this concern to the forefront of my mind.  The first is Carhart v. Gonzalez, a 2007 case in which the Court upheld a congressional ban on a form of late term abortions.  The Court disregarded the opinion of nine professional associations of doctors, including the leading American College of Obstetricians and Gynecologists, who recommended the procedure as significantly safer than the other form of late term abortions permitted by the statute.  Instead, the Court agreed with Congress that the procedure was never justified to protect the health of women.  Why overlook the substantial weight of the medical evidence?  Justice Anthony Kennedy explained, “Respect for human life finds an ultimate expression in the bond of love the mother has for her child.”  Justice Kennedy’s Cahart opinion is reminiscent of Justice Bradley’s concurrence to an 1872 case, Bradwell v. State, explaining that women did not have a constitutional right to be lawyers because “the paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother.”  As the lone woman on the current Supreme Court (and a mother of two), Justice Ginsburg argued in dissent, Kennedy’s “bonds of love” language “reflects ancient notions about women’s place in the family and under the Constitution.”  Yet now it is also part of our Twenty-First Century constitutional jurisprudence.

The second example occurred just this week during the oral argument before the Ctmpphpomsiak1.jpgourt in the case of Safford v. Redding, in which school officials strip searched a 13 year girl because her former friend said that she might have drugs.  While Justice Breyer joked about having things put in his underwear when he was twelve, Justice Ginsburg angrily pointed out that 13 year old girls tend to be incredibly self conscious about their bodies.  Can we really expect even well meaning judges who joke about underwear to adequately protect the privacy rights of 13 year old girls, who can be traumatized for life when they are told to shake out their bras and underwear by school authorities based not even on  a reasonable suspicion that they might possess contraband? No wonder Justice Ginsburg says that she is lonely!

So, do we need more women on the Supreme Court?  You bet we do!

Equal Access to Justice

Written by Rebecca Zietlow on April 16th, 2009

Our current economic crisis has caused thousands of people to face unemployment, home foreclosures, evictions, bankruptcies, domestic violence and other problems.  However, too many people wtom-harkin.jpgho find themselves in legal trouble cannot afford to hire a lawyer to help them – as many as 80% in some parts of the country.  As a former legal services lawyer, I can attest to the value of having a lawyer when a person is in an overcrowded housing court, or seeking benefits from the government.  Regardless of the strength of your case, whether or not you have a lawyer often makes the difference between winning and losing.  Yet even as the need for legal assistance has skyrocketted, in recent years, Congress has slashed LSC funds and imposed drastic restrictions on the use of those funds.  The reduction in LSC funds has caused LSC programs to consolidate and reduce services.  Nationally, 50% of eligible applicants those who seek assistance from LSC programs are turned away.  Consider this – in order to be eligible for LSC assistance, your annual household income must be below 125% of the poverty line – currently about $25,000 for a family of four.  If LSC lawyers can’t help them, no one will.

Last month, Senator Tom Harkin introduced the Civil Access to Justice Act.  The CAJA would re-authorise the Legal Services Corporation for the first time since 1981.  It would also increase funding for the Legal Services Corporation, reduce the restrictions on LSC funded programs, provide for improved governance at LSC, and authorize a grant program from the Department of Education to expand law school clinics.  The proposed bill would expand funding to $740,000, a mere drop in the bucket in the federal budget, but over twice the funding level from last year.  It would once again enable LSC programs to collect attorneys’ fees and file class actions to provide systemic relief.  Harkin, also a former legal services lawyer, is well aware of the crying need for the Civil Access to Justice Act.  I hope that Congress will pass it quickly, to further the promise on the United States Supreme Court facade of “Equal Justice Under Law.”

Heat Pumps and the Stimulus Package Tax Credit

Written by Henry L. Chambers, Jr. on April 15th, 2009

A friend of mine needs a heat pump.  The heat pump is old and has died.  Luckily, for him, Richmond is not so cold that he had to buy a new heat pump from the first salesman who gave him an estimate.  Heat pump manufacturers do not provide the kind of detailed price information that some other industrial manufacturers, like car manufacturers, do.  Consequently, he has gotten wildly varying prices on the same heat pump from different HVAC retailers who are counting on him buying without sufficient information.  Profit maximization is to be expected, but one part of the process that my friend did not expect was the cavalier attitude that salesmen have taken to his questions about whether a heat pump that he may purchase qualifies for a tax credit under the stimulus package signed a few months ago.

The stimulus package includes a tax credit for the purchase of particularly energy efficient heat pump systems.  The credit is for 30% of the value of a qualifying system up to $1500.  It is a smart tax credit that provides an incentive to be greener.  However, it may be too difficult to understand to be of as much use as it could be.  The terms of the tax credit appear to disqualify a number of systems that are deemed high efficiency by the heat pump companies.  From one angle, the program may look like a program that provides benefits for those who can afford super-high-efficiency heat pumps, but may leave those who cannot quite afford such heat pumps out in the cold so to spea123272471032512263244811.jpgk.  It may well be that the program is not terribly complicated and that my friend has run into a number of salesmen who are simply not sufficiently well versed in the tax credit.  However, the salesmen have been bright and the tax credit should allow their companies to sell heat pumps with higher prices (and likely higher profit margins) to customers who are allowed to send Uncle Sam part of the bill.  That the companies and their salesmen are willing to forgo the program’s obvious benefits suggests that the program is tough to understand, not that the salesmen are woefully undertrained.  If I am correct about that, the program should be tweaked.  Assuming that the program is a good idea, the government ought to want it to be used.  The government should want heat pump salesmen to pitch the credit to get people to buy highly-efficient heat pumps.  If there were no reason to have consumers buy one heat pump over another, it is unclear why the tax credit should exist.  To the extent that such salesmanship is not occurring – at least it does not appear to be happening in Richmond – the government may wish to explain the program more clearly to those in the best position to get consumers to use the program.  Indeed, the government may wish to do this with all manner of underused government programs.