A civil war rematch over voting rights

Today in the Guardian I discuss the current Republican war on voting rights taking place in the South.  

Nearly 150 years after the end of the US civil war, the South and the federal government are poised for a rematch over the voting rights of black Americans, and ultimately over the fundamental rights of all Americans. Once again, the former Confederate states are determined to defend their traditions and way of life, while the Union forces in the North – the federal government – are positioning themselves to defend justice and equality.

But this time, in an ironic twist, two black men – President Barack Obama and Attorney General Eric Holder – are leading the charge.

Click HERE for more.

This week in theGrio: Secret Spying Court and Racist Ron and Rand Paul

Check out these latest pieces from me in MSNBC's theGrio this week:

The first deals with the African American judge who presides over the Foreign Intelligence Surveillance Court, a secret Supreme Court that rubber stamps the government's efforts to get into our business.  Click HERE for more.

The second story is a look at the racist history of libertarian-conservative politicians Ron and Rand Paul, and how Rand's affiliations with a neo-Confederate admirer of John Wilkes Booth could damage his presidential chances in 2016.  Click HERE for more.

Supreme Court Throws Voting Rights Act Under the Bus

It is no understatement to say that the U.S. Supreme Court committed a crime of the highest proportion when it decided to gut the Voting Rights Act of 1965 a few days ago. The victory for gay marriage and against DOMA was bittersweet, given a disappointing voting rights decision in the same week.

The lesson learned from the high court’s opinion in Shelby County v. Holder is clear: Don’t look to the federal government to protect your voting rights, which you no longer have, in any case. The extreme majority on the Supreme Court cares little to nothing about you. And as for the states, it’s Jim Crow all over again. States, do what you will. Disenfranchise black voters if that suits you. Give them literacy tests and block their votes. Make them tell you how many bubbles are in a bar of soap in order to register. This was a clear victory for states’ rights and for the Old Confederacy and those who waved and continue to wave the Stars and Bars with prideful glee.

And this was a victory for Bull Connor and the domestic terrorists who killed Medgar Evers and those four little girls in the 16th Street Baptist Church in Birmingham. And it was a big win for the murderers of Andrew Goodman, Michael Schwerner and James Cheney in Philadelphia, Mississippi, and those who killed and maimed countless others for the right to vote.

Essentially, the Supreme Court eliminated Section 4 of the Act, which determines which states fall under the preclearance requirement of Section 5. I suppose none of this matters anymore, but under Section 5, certain jurisdictions with a history of voter disenfranchisement against African Americans were required to seek permission from the federal government or a federal court before making changes to their election laws. In recent years, the Voting Rights Act was invoked to put the brakes on voter suppression efforts in South Carolina and Texas. Now, with no more Voting Rights Act, these states are free to pursue their Voter ID schemes with reckless abandon. That goes for other states as well. No need to ask the feds for permission.

The Voting Rights Act covered nine states  -  Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia  -  and numerous other counties and localities across the nation.

It is clear that when you look at map of places covered by the Voting Rights Act, you’re essentiallylooking at the South. Law professors Christopher Elmendorf and Douglas Spencer at the University of California, Davis and the University of Connecticut, respectively, conducted a study on which states exhibit the most anti-black prejudice. Under their study, the professors asked nonblacks to rate blacks and their own racial group concerning work ethic, intelligence and trustworthiness. The professors found that the states requiring preclearance under the Voting Rights Act closely mirror the most racist states under their research. In other words, welcome to Dixie. There’s a little Alabama in places such as Pennsylvania and other “Up South” states, but this is a South-dominated phenomenon.

Known for its culture of violence and dehumanization of people through slavery and segregation, the South is also home for much of the so-called Bible Belt, as well as the Death Belt, where the lion’s share of America’s executions take place. But that’s the subject for another story.

Nevertheless, despite the abundance of evidence pointing to the continued need for the Voting Rights Act - including the protracted nature of racism in this country, and the prolonged threat to the franchise in the land of the free - the Tea Party justices would have you believe that we live in a colorblind society where racism no longer exists. And their evidence is because they said it is so.

Writing for the five justices in the majority - including himself and Justices Scalia, Kennedy, Thomas and Alito - Chief Justice John Roberts proclaimed that Section 4 of the Voting Rights Act is unconstitutional because Congress did not revise the formula subjecting jurisdictions to preclearance. And after all, things have changed, right? Look at all the black people who are voting!

“Nearly 50 years later, things have changed dramatically,” wrote Roberts. “In the covered jurisdictions, “[v]oter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels…. The tests and devices that blocked access to the ballot have been forbidden nationwide for over 40 years.”

Roberts continued, “There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions. By 2009, ‘the racial gap in voter registration and turnout [was] lower in the States originally covered by section 5 than it [was] nationwide.’”

“Since that time, Census Bureau data indicate that African-American voter turnout has come to exceed white voter turnout in five of the six States originally covered by section 5,with a gap in the sixth State of less than one half of one percent,” he added.

Meanwhile, for proof that voter suppression of people of color and others still exists, just remember all of the states which have enacted or tried to enact voter ID laws. Certainly the Voting Rights Act has protected voters from discrimination at the ballot box, an argument for protecting the law itself. “The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective,” Justice Ruth Bader Ginsburg wrote in her dissent on behalf of Justices Breyer, Sotomayor and Kagan. “The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed.”

Clarence Thomas, that cruel joke of a gift from Poppy Bush that just keeps on giving, wrote in his own concurring opinion that section 5 of the VRA is unconstitutional as well. “As the Court aptly notes:’[N]o one can fairly say that [the record] shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time.’” Thomas wrote. “Indeed, circumstances in the covered jurisdictions can no longer be characterized as ‘exceptional’ or ‘unique.’ The extensive pattern of discrimination that led the Court to previously uphold section 5 as enforcing the Fifteenth Amendment no longer exists.”

Thomas plays a particularly shameful role in this case and on the Supreme Court in general, as the descendant of slaves who believes that no African American is a victim unless their name is Clarence Thomas, and the venue is a high-tech lynching before the U.S. Senate.

Thomas has shown nothing but contempt for the civil rights establishment and black people in general, and yet he owes so much to the movement that paved the way for him. He is one of the most powerful people in America, selected by the President and confirmed by the Senate, yet he accuses Obama of elitism. He depended on the patronage of white Republicans who took a liking to him, yet he demands that everyone else pull themselves up by their own bootstraps.

Justice Thomas was a beneficiary of affirmative action, yet in his concurring opinion in the recent Fisher v. University of Texas affirmative action case, he condemned programs of inclusion. “Slaveholders argued that slavery was a ‘positive good’ that civilized blacks and elevated them in every dimension of life,” Thomas wrote. “A century later, segregationists similarly asserted that segregation was not only benign, but good for black students.”

Most of all, Clarence Thomas is a key player of the destruction of the civil rights legacy of Thurgood Marshall and others. And this small, bitter, wayward man takes glee in gutting a law that came from the blood of peaceful civil rights protestors beaten by police on the Edmund Pettus Bridge, and through the lynching of Viola Liuzzo by the Alabama Ku Klux Klan. His court is in league with the Dred Scottand Plessy courts, and for this he can never be forgiven.

Let’s make it clear: Republicans have been jonesing for a repeal of the VRA for awhile, as they have suppressed the votes of Democratic constituents and redistricted themselves into perpetual rule, despite the demographic browning and blackening of America. They don’t want black and Latino votes and couldn’t win them if they wanted to, so why not change the electorate from the one you cannot win with to the one you can?

Since an African American came to the presidency, conservatives have decided to give this whole voting thing a critical eye.

The pathway to restoring the VRA is leadership from President Obama and action from Congress. However, don’t expect anything from this partisan Tea Party Congress, which in collaboration with SCOTUS have brought us to the end of voting rights in America. And so the crooks have changed the law to justify their own theft.

Ultimately, our only hope is in next year’s midterm election. Vote.

Scalia's shameful stance on the Voting Rights Act

From theGrio:

On Monday at the University of California Washington Center, the high court judge said that the law an “embedded” form of “racial preferment.”  According to Scalia’s interpretation, the Voting Rights Act was enacted as an emergency measure, but now amounts to a federal racial preference system for black people that discriminates against whites.

“Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes,” Scalia said. “Even the name of it is wonderful, the Voting Rights Act. Who’s going to vote against that?”

Read MORE.

Georgia wants to execute Warren Hill and violate the Constitution

Georgia is about to execute a mentally disabled man in violation of the U.S. Constitution.

Unless the U.S. Supreme Court intervenes, the state of Georgia will execute a man that everyone agrees is mentally retarded.  A state court determined that a decade ago.  The execution would violate the U.S. Constitution if carried out, but apparently that standard is not good enough for the Peach State.

Warren Lee Hill, Jr., who has an I.Q. of 70, is scheduled to die by lethal injection on July 23.  His original execution date of July 18 was postponed due to changes in the state’s execution drug protocol.  Georgia, which once used a three-drug cocktail, has opted for a single drug dosage of pentobarbital—a sedative used to put down dogs and cats that has been banned for export by the European Union.

On July 18, Texas used pentobarbital to execute Yokamon Hearn.  Hearn was a mentally impaired man who, according to his defense, suffered mental impairments due to his mother’s prenatal drinking, and abuse from his parents.

In his order denying relief to Hill, Superior Court Judge Thomas H. Wilson wrote that Hill meets the criteria of mental retardation by a preponderance of the evidence.  In Atkins v. Virginia, the Supreme Court  mandated the states to protect people with mental retardation because there is a “special risk of wrongful execution” because of their disabilities.

Writing for the majority in Atkins, Justice Stevens opined that the mentally disabled should not be executed because it provides no deterrent effect, and that such offenders are not culpable to deserve such a form of retribution.  He added that with reduced capacity, mentally retarded defendants face a risk of wrongful conviction. They are poor witnesses, may give less meaningful assistance to their lawyers, and their demeanor may give an impression that they lack remorse.

“Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes,” Stevens wrote.  “Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.  Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants.”

However, Georgia sees things differently.  Georgia requires defendants to prove they have an intellectual disability beyond a reasonable doubt—the strictest standard in the nation.  And experts agree Georgia is an outlier, as the only state in the Union with such an unreasonably high burden of proof and an impossible standard to meet.  Yet, the state judge believes that Hill does not meet Georgia’s standard, and that Georgia’s standard does not violate the U.S. Constitution.

Many have already spoken out on this case.  Several jurors from the case said they would have sentenced Hill to life without parole if they had the option.  Former President Jimmy Carter and Rosalyn Carter called for clemency, and the victim’s family called for a commutation of his sentence.  Mental health advocacy groups, including the Georgia Council on Developmental Disabilities, the Arc of Georgia and the American Association on Intellectual and Developmental Disabilities (AAIDD) have called for a stay of Hill’s execution as well.

Further, the international community has voiced its opposition to the execution.  Christof Heyns—the UN special rapporteur on extrajudicial, summary or arbitrary executions—said Hill’s execution “would be a fatality in violation of international as well as domestic law.”

Georgia has a history of problems in its application of the death penalty, often making big mistakes by playing fast and loose with justice.  In 2005, the state of Georgia granted a posthumous pardon to Lena Baker.  A black maid who was executed in 1945 for killing a white man she said enslaved and beat her, Baker was the only woman executed in Georgia’s electric chair.  Her last words were "What I done, I did in self-defense, or I would have been killed myself ... I am ready to meet my God."

And last September—despite strong indications of innocence, an international outcry and a petition of 1 million signatures— Georgia sent a man named Troy Davis to his death.  The execution of Troy Davis, despite the absence of a murder weapon, physical evidence or DNA linking him to the crime, placed the spotlight on Georgia and the injustices of the death penalty.  This, in a state where five death row inmates have been exonerated.

And Georgia is in the spotlight once again, as it plans to execute Warren Hill, a mentally ill man.   And as the state decides to go it alone— flying in the face of the Constitution— the attention it receives is an embarrassment.

These Low Information Voters Will Be Our Undoing

The results of the recall election of Wisconsin Governor Scott Walker tell you most of what you need to know about the state of politics in the U.S.


On the one hand, you have a governor who did not hide his desire to divide and conquer the unions, eliminate collective bargaining, decimate government services and serve a small cadre of wealthy, powerful and shady corporate interests. He was bought by the Karl Rove, the Koch Brothers, and other criminal organizations. There’s even a possible federal indictment for him on the horizon, in connection with an embezzlement investigation that has already ensnared six of his associates and aides.

So, what’s going on here? No one can question the corrupting influence of money in politics, particularly since the Supreme Court’s Citizens United decision. Money is a big factor in elections, and when a few billionaires can decide which jerk to put in office, their money trumps the votes and drowns out the voices of the common folk. But still, the 1 percenters require voters to get their candidate in office and seal the deal. These people, known as “low information” voters - a charitable and technical sounding term for uneducated, ignorant or gullible - are the real problem.Yet, despite all this, Walker survived the recall, and it wasn’t even close. Plus, he did it with the support of 38 percent of union households - you know, the people Walker wants to crush. Various explanations have been given for the election results, including the notion that the people simply didn’t like the idea of a recall, or that the Super PACs flooded Wisconsin with money for their boy Walker, giving him a sizable financial advantage over the Democratic challenger and handing him victory. And he did it without the help of the Jim Crow-style voter ID bill he signed into law.


In the Wisconsin recall election, and countless elections throughout the country, both state and national, these low information voters vote against their economic interests and derail the democratic system. A democracy works only with an educated, informed populace, which the United States lacks and desperately needs if it will have any chance of overcoming its dysfunction.


White working class voters have made a pact with the devil - in the case of Republican Party, this should be taken in a literal sense - and now they (and all of us) are paying for it. Convinced that government programs are welfare - translated to mean the blacks and Latinos are getting freebees they don’t deserve - they will oppose them if doing so will hurt blacks more than whites. It is the legacy of the Southern Strategy that has allowed conservatives to politically capitalize on white resentment of black progress. That resentment is summed up in a scene from the 1997 film, Rosewood, a film depicting the massacre of a prosperous black Florida town by a white lynch mob. The following is an exchange between two white men in the film:


Man #1: You know he’s [Sylvester] got a piano? A ni**er with a goddamn piano. I’ve been working all my life, I ain’t got a piano.
Man #2: You don’t know how to play one.
Man #1: That ain’t the point. Old man Cummer, up that house of his, he’s got a piano. That ni**er’s got one, and I don’t.


The Rosewood massacre of 1923, like the Tulsa race riot two years earlier, was precipitated by claims that a black man raped a white woman. But the racial tensions in these massacres and others reflected an underlying social and economic competition.

And the culture wars, including gun worship, abortion bans, homophobia and immigrant bashing, become substitutes for concrete policies of economic uplift and social progress.While some working-class and poor whites have been content with being one rung above people of color on the totem pole, still they have remained on a very low rung and out of luck. There is a reason why the U.S.does not have a vibrant labor movement. And there is a reason why America maintains the flimsiest social safety net and the worst economic inequality of the advanced nations. It is because white members of the 99 percent - or enough of them, at least - have acted not in their own interests, but in the interests of the 1 percent. It is oppression by remote control, and the oppressed are made to feel like winners even as they emerge empty handed.


Faced with hard times, people have clear choices. Either they join forces across racial and ethnic lines and fight their common adversary, or they double down on the dumbness, thrive on misinformation and assign scapegoats. The Tea Party, which now prevails in national politics and owns a major political party, represents the latter of the two choices. It is this mindset that gives us creeps running state houses throughout the country - not just in Wisconsin. For example, the governor of Michigan is dismantling and disenfranchising majority-black cities, while the governor of Florida, the largest Medicare fraudster of all time in his old job, ispurging 182,000 Latino and black voters from the rolls.


And yet, once again, someone out there is voting for these people. Until we resolve this, America will never get any better.

We Need a Competency Test for Elected Officials

Where do they find these people? I'm talking about those crazy-talking Tea Party types, ultra-conservative Republicans posing as legitimate lawmakers and politicians, some of them even passing themselves off as senators, members of Congress and governors.

Now, before you say anything, I am not naïve about politics. I know that politics has always attracted some of the best, but all too frequently it has attracted some of the worst that society has to offer. But this past election season, it seems as if the bottom fell out on how bad it can get -- how truly pathetic and hopelessly unqualified candidates for political office are allowed to be. Tea party candidates demonstrated their extremist and racist views, their ignorance of basic constitutional principles, and their lack of preparation for primetime.

And most of all, they showed that they are wholly-owned pawns of wealthy interests.

Rand Paul, Rick Scott and Jan Brewer won. Christine O'Donnell, Ken Buck and Sharron Angle lost, but they were still legitimate nominees of a major political party, so victory was at least within the realm of the possible for them. Dumb as bricks, with no practical experience or knowledge of which to speak, is suddenly a virtue. Some of them said they would criminalize abortion in the case of rape and incest, or protect the rights of private businesses to discriminate against black people. Some have urged the use of Second Amendment remedies. At least one candidate led a program to openly intimidate black voters. And yet, a number of them found enough votes to take them to victory. They told the constituents they would protect the interests of the rich, and yet they were able to garner enough votes from the poor dumb citizenry to win the election. That's something, isn't it?

The bar of stupidity and intolerance is lowered every day, and yet someone will vote for these people. In Oklahoma, a state senator authored a measure to amend the state constitution, prohibiting state courts from considering international law or Islamic Sharia law when reviewing cases. The measure passed with 70 percent of the vote, and a federal judge overturned it, which shows that the federal government is necessary to protect us from the states.

The re-elected governor of Texas, Rick Perry, longs for the old days, a hundred years ago -- before the progressive movement and the New Deal, when there were no child labor laws, unemployment insurance, national income tax, consumer regulations or worker protections. He even wanted Texas To secede from the Union, and likely put an innocent man to death. And still, the citizenry of Texas rewarded Perry with a third term in office.

Meanwhile, in Arizona, the governor and a state legislator pass an anti-immigrant "papers please" law that was drafted by white supremacists and the private-prison industry.

Whenever you find deplorable laws, there were deplorable people behind those laws, driven by greed and fanaticism, and lacking in character, empathy, scruples, and a concern for the common good. America needs some sort of competency exam, some kind of quality control process for their elected officials. Where are the regulations? I know, elections are supposed to take care of that. Under normal circumstances, in a democracy with elected representatives, you should be able to count on an informed electorate to pick the best candidates based on the issues. But this is America, and there are several problems with that notion. Civic engagement is lacking, voter participation is low, and many who vote are low information voters. Public education and the news media have failed them. While democracy depends on an educated electorate, sadly, too many American voters are ignorant and ill-informed.

It does not help matters that the nation's politics are driven by a system of legalized bribery, blown wide open by the U.S. Supreme Court's Citizens United decision. In this pay-to-play land, with the best system money can buy, democracy goes to the highest bidder. So what is considered corruption in your run-of-the-mill, Third World banana republic is the law in America, protected by the First Amendment -- because corporations are people, too.

Given the dysfunction, the gridlock and the mean-spiritedness in our politics, it is no wonder that the best and brightest too often flock to other disciplines, leaving the barrel scrapers to fill the vacuum of political leadership. And yet, someone somewhere out there will vote for them.

Why Kagan could be a crucial vote on key cases

From theGrio.com:

On Thursday, the U.S. Senate voted to confirm Elena Kagan to the U.S. Supreme Court, with several Republican votes and no attempts to filibuster. Now that Solicitor General Kagan is about to become Associate Justice Kagan, Americans will have the opportunity to see how she comes out on the issues.

Up to this point, Kagan's paper trail has been scant at best, and as a person with "real-world" experience and no time serving on the bench, she has no judicial record whatsoever. However, her work experience as a law clerk for the late Justice Thurgood Marshall, a Clinton adviser, a law school dean, and a lawyer representing the U.S. government before the high court could provide some clues. Further, she has been called a liberal and a pragmatist, an analytical person who seeks common ground, and someone with a strong personality whose presence could begin to gradually change the court.

The conventional wisdom is that Kagan replacing Justice John Paul Stevens will be a wash from an ideological standpoint. And as the third woman presently on the high court--and only the fourth woman ever to sit on the nation's most important judicial body--a critical mass of female justices will likely have a positive influence on cases involving discrimination and other issues. She pledged "even-handedness" and "impartiality" on the court.

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Supreme Court Hearings Remind Us of What's at Stake

I don't know about you, but after watching the confirmation hearings for Supreme Court nominee Elena Kagan, I was given the distinct impression that Thurgood Marshall was being subjected to a criminal trial, post-mortem, by Republicans on the Senate Judiciary Committee. The late great Supreme Court justice -- and the first African-American to sit on the high court -- was mentioned no fewer than 35 times the first day. Meanwhile, President Obama was mentioned only 14 times.

Elena Kagan has the nerve to actually admire such a man as Marshall, a civil rights giant who served as lead attorney in the Brown v. Board of Education case, and served as a jurist of high distinction. She even served as a law clerk to the man. How dare she! Didn't the White House people properly vet this candidate, so as to discover such disturbing, and potentially deal-breaking, information in her past?

Each time a Supreme Court nominee comes before the Senate, we should expect the same thing: one group of lawmakers will ask thoughtful, probing questions in an attempt to determine the candidate's suitability for the nation's top judicial body. But the other group, generally a contingent of dour white-male, pro-corporate, segregationist holdovers, are charged with the task of disrespecting any nominee that does not subscribe to their narrow and flawed worldview. And it is this second group -- which never passes up the opportunity to portray themselves as the twenty-first century reincarnation of Senators Strom Thurmond, Theodore Bilbo and James Eastland -- that tells you all you need to know about the nature and purpose of these hearings.

And these Republicans spent valuable time sullying the name of a man who accomplished more for this country than they could ever dream in a thousand lifetimes, and whose shoes they are unworthy to fill collectively, much less shine.

Harsh words, perhaps, but the unsolicited commentary those senators provided that day was harsh, and was said in the presence of Justice Marshall's son. The common theme was that liberal activist judges are evil, whatever "activist" means, with particular attention paid to Marshall's view that "you do what you think is right and let the law catch up." Sen. Jon Kyl (R-Ariz.) condemned Kagan for praising Marshall for believing that "it was the role of the courts in interpreting the Constitution to protect the people who went unprotected by every other organ of government." Kyl also said that Marshall's judicial philosophy "is not what I would consider to be mainstream," and slammed Marshall for "his unshakable determination to protect the underdog."

South Carolina Sen. Lindsey Graham said of Kagan's purported "liberal" political leanings, "And if at the end of the day, you think more like Justice Marshall than Justice Rehnquist, so be it." Well, one would hope that Kagan does not think like the late Chief Justice Rehnquist, who once defended the "separate but equal" doctrine in Plessy v. Ferguson, and began his legal career working for Operation Eagle Eye, a Republican project to intimidate, harass and exclude black and Latino voters. He also fought the passage of a Phoenix, Arizona ordinance allowing blacks to enter stores and restaurants.

In his opening statement, Sen. Jeff Sessions (R-Ala.) reminded us that Elena Kagan "clerked for Judge [Abner] Mikva and Justice Marshall, each a well-known liberal activist judge." Yes, she clerked for a Jew and a black, and we know what happens when you get those Jewish and black civil rights-loving activist types together. Surely this thinly-veiled racist point was not missed by the Tea Party base for which Sessions' troubling message was intended, provided their mental capacity allowed them to catch it.

And Sessions is not one to be in judgment of anyone, yet he remains on the Senate Judiciary committee. This is the man who was rejected by the Senate for the federal bench because he opposed the Voting Rights Act. As a U.S. attorney in Alabama, he called a black assistant U.S. Attorney "boy" and warned him to "be careful what you say to white folks." He said the NAACP and the ACLU were "un-American and Communist inspired" groups that "forced civil rights down the throats of people." As a federal prosecutor, Sessions engaged in a voter-fraud witch-hunt against three Black civil rights workers, including a former aide to Dr. King. Moreover, during a 1981 KKK murder investigation, Sessions was heard by several colleagues commenting that he "used to think they [the Klan] were OK" until he found out some of them were "pot smokers."

Race was a fixture of the Sonia Sotomayor hearings, and apparently race is a big part of the Kagan hearings, even though Kagan is not a person of color. That's because the ultra-Right Republicans can't let it go. Race-baiting is their crack, if you will, and they refuse to get treatment for their affliction. The race card won them many an election. And though their base of good ol' boys is dwindling, they refuse to divest themselves of a strategy that is doomed to failure in light of changing demographics.

The Kagan hearings, or any Supreme Court hearings for that matter, are part of the war to win over the hearts and minds of America, to determine what kind of country we want this to become.

Conservatives will decry the rise of the liberal activist judges who legislate from the bench. But activism is in the eye of the beholder. I cannot think of any greater examples of activism than the gems promulgated by the current court, such as the Citizens United decision, which gives corporations free rein to influence the political process. And another great example is the court's new interpretation of Second Amendment, in which the language regarding "a well regulated militia" is misconstrued as a fundamental right of personal gun ownership under federal and state and local law. This, in a nation with 30,000 gun murders a year.

In the end, the real question is whether we want the Dred Scott court and the Plessy court, or the court that gave us the Brown decision. It's for the people with power or its power for the people. And that's what these hearings are all about.

Miranda ruling proves Supreme Court is out of order

From theGrio:

The recent Supreme Court decision in Berghuis v. Thompkins makes two things perfectly clear: Miranda rights, or what is left of them, will never be the same. And the high court has become a radical and extremist activist body that will take your rights away in a second.

In a 5-4 decision, the highest court in the nation ruled that criminal suspects who want to remain silent and not talk to the police must explicitly tell police they want to be silent. In other words, according to the court, you have to speak up in order to shut up. And that makes no sense at all.

The Thompkins decision was split in the usual way, with Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito joining Justice Anthony Kennedy for a predictable conservative majority. Justices Stephen Breyer, John Paul Stevens and Ruth Bader Ginsburg joined Sonia Sotomayor in the dissent.

And this majority has eroded the legacy of the landmark 1966 case Miranda v. Arizona, in which police must tell a suspect during arrests and interrogations of his or her right to remain silent and right to an attorney. That is how the well-known Miranda warnings came into being, a protection against self-incrimination and the abuse of state power. But now, in order to stop an interrogation, suspects must tell the police they are going to remain silent-- the same way they must tell police that they want a lawyer.

Van Chester Thompkins, a criminal suspect, remained silent for most of his three-hour police interrogation, until he uttered a few responses that implicated himself in a Jan. 10, 2000, murder in Southfield, Michigan. Thompkins appealed his conviction on the grounds that he invoked his Miranda right to remain silent by remaining silent. Well, the majority said that wasn't enough.

"Today's decision turns Miranda upside down," Justice Sonia Sotomayor wrote in her dissent. "Criminal suspects must now unambiguously invoke their right to remain silent -- which, counter-intuitively, requires them to speak." The justice added that "The broad rules the Court announces today are also troubling because they are unnecessary to decide this case."

This ruling is typical of a conservative majority that has been out on the attack when it comes to the rights of everyday people. Let us not forget their decision in Citizens United v. Federal Election Commission, which ended the ban on corporate political spending on First Amendment grounds. President Obama said the ruling gives "a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans."

For all of their posturing at every Supreme Court confirmation hearing, Senate conservatives really do not care about judicial restraint and the threat of judicial activists who write new law from the bench. If they did, they would not confirm radical nominees that, well, legislate from the bench. They key is that these conservatives want judges that will toe the company line of fewer rights for the many, and more rights for the few, especially the corporations. This has been the game plan of the conservative movement since the days of Ronald Reagan, and one must give them kudos for getting it done.

And their latest victory in Thompkins is a decisive blow to an important legal doctrine that all of us with a J.D.learned in law school-- and all criminal suspects learn one way or another.

So, given this mess in which we find ourselves, what are our options? First, President Obama can attempt to mimic President Franklin Roosevelt and try to stack the court with one or two extra seats. However, it didn't work for Roosevelt, whose court packing plan was harshly rebuked, ultimately discouraging any subsequent attempts at the same thing. Plus, there is no evidence that the current president has the stomach or the disposition to take such a risk. But it would provide for outstanding political theater.

Second--and this is the more likely scenario--Congress could add extra seats to the court with a simple majority vote in both houses. This is what FDR should have done. The current number of nine justices is not a rule etched in stone. The number was originally set at six, and that number has fluctuated over time.

But such a move would require guts, courage, and foresight, none of which are readily available in this Congress.

Other than that, there's always attrition, not to sound too cruel. Perhaps Justice Clarence Thomas will look for another line of work other than his current position destroying the hopes and dreams of black people. Maybe we can hope for another retirement or two on the Supreme Court in the coming years, and more opportunities for Obama to shape the court in his own image, any image other than its current form.

Supreme Court’s campaign financing decision is bad for democracy

From the Progressive Media Project

In a watershed 5-4 decision, the court has rolled back the nation's campaign finance laws, allowing corporations unlimited power to influence federal campaigns. The decision threatens the integrity of our democratic system.

In Citizens United v. Federal Election Commission, the high court eliminated the restrictions on independent corporate spending in federal law.

The Bipartisan Campaign Reform Act of 2002, also known as McCain-Feingold, prohibited corporations from engaging in "electioneering communication" within 30 days of a primary election, and within 60 days of a general election.

The court's majority framed the issue in terms of free speech, essentially giving corporations the same rights as human beings. "Because speech is an essential mechanism of democracy - it is the means to hold officials accountable to the people - political speech must prevail against laws that would suppress it by design or inadvertence," wrote Justice Anthony Kennedy for the majority.

In his scathing dissenting opinion, Justice John Paul Stevens accused the majority of judicial activism.

He decried the promotion of corporate personhood in this case, and noted that Congress has placed special limitations on campaign spending by corporations since the Tillman Act in 1907.

"The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the court's disposition of this case," Stevens wrote, in an opinion joined by the other three liberal court members. "In the context of election to public office, the distinction between corporate and human speakers is significant."

"Our lawmakers," he added, "have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races."

It is the worst decision to come out of the court in years, perhaps even since the Dred Scott v. Sanford decision. In that 1857 case, the Supreme Court ruled that people of African ancestry and their descendants - whether slaves or free - were not citizens and therefore not protected by the U.S. Constitution. That decision was ultimately overturned by the 14th Amendment.

And perhaps it will take a constitutional amendment to remedy the damage created by this decision, which allows corporations to drown out the voices and dilute the power of individual citizens.

A corporation, or corporations, could decide to pour millions of dollars into a particular local race, and punish a candidate for his or her political views. Politicians literally will be owned by corporations, with company logos all but stamped on their foreheads.

People of good will, of all political persuasions, must come together to oppose this corporate buyout of our government.

Sotomayor’s nomination is important

By David A. Love, The Progressive / McClatchy-Tribune News Service

President Obama’s nomination of Judge Sonia Sotomayor to the U.S. Supreme Court reminds us of the importance of diversity in the judiciary. In order to have a vibrant democracy and a fair justice system, our courts should reflect the richness and variety of America.

Throughout its history, the nation’s high court has not been a diverse place. Of the 110 justices who have served on the court, 106 have been white men. Only two have been women, and only two black. 

Sotomayor would add to the court not only her substantial legal experience as a former prosecutor and a federal judge, but also her unique perspective as a woman, a Latina, and someone who emerged from humble beginnings in the Bronx.

While some of her critics, such as Newt Gingrich, Rush Limbaugh and former Rep. Tom Tancredo have seized upon one statement she made in 2001 and called her a racist, Sotomayor’s comment was very similar to those of other Supreme Court justices who were influenced by their background and life experiences.

Sotomayor said, “I would hope a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion that a white male who hasn’t lived that life.”

During his Supreme Court confirmation hearings, Clarence Thomas said he believed “that I can make a contribution, that I can bring something different to the Court, that I can walk in the shoes of the people who are affected by what the Court does.”

Samuel Alito, an Italian-American, noted during his confirmation hearing that he did not come from an affluent or privileged family, and that he was shaped by his immigrant background: “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.”

As a former law clerk to two black federal judges, I witnessed in a very direct and meaningful way the benefits a diverse judiciary brings to society.

Both had an understanding of everyday people and their life situations. Their ties to the community and their real-world experiences informed their decisions on complex cases.

The law does not exist in a vacuum. It involves not only rules, but rather people and their daily lives, conflicts and struggles. 

A justice system cannot serve all people fairly when all of the judges look alike, have identical backgrounds, attended the same schools and took the same career path. And a system that elevates brilliant legal minds but no empathy in their hearts threatens to oppress us.

Sadly, the legal profession is one of the least diverse professions in the United States. More than 90 percent of the judges, prosecutors and defense attorneys are white. That has got to change.

Diversity matters on the court. And with the nomination of Sonia Sotomayor, Obama is signalling a renewed commitment to a diverse and capable bench. This can only increase the public’s confidence in the legal system, and make justice real for all Americans.

Supreme Court's voter ID decision is a blow to democracy

By David A. Love
Progressive Media Project and McClatchy-Tribune News Service
May 7, 2008

By upholding Indiana's voter ID law, the Supreme Court struck another blow to civil rights and equality in the United States.

In its 6-3 decision in Crawford v. Marion County Election Board, the court ruled that the law, which requires Indiana voters to show photo identification at the polls, is constitutional.

But the law was devised with partisan motives in mind. The Republican-dominated legislature enacted it in 2005 against the wishes of Democrats and civil rights advocates who were concerned that it would deny equal access to the voting booth.

Why? Because the law places an unfair burden on the poor, minority groups, students, the disabled and the elderly, groups that are least likely to have proper ID.

Voter ID laws like Indiana's harken to the days of Jim Crow, when states required blacks to pay poll taxes and pass literacy tests, or answer questions as inane as "how many bubbles are in a bar of soap?" in order to vote.

In the majority opinion, Justice John Paul Stevens, joined by Chief Justice John G. Roberts Jr., and Justice Anthony M. Kennedy, said the burden the law imposes is minimal and even-handed, and that the law is justifiable since it aims to "protect the integrity and reliability of the electoral process itself." Also siding with the majority, Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. wrote that the Indiana law is "eminently reasonable.

The burden of acquiring, possessing and showing a free photo identification is simply not severe, because it does not `even represent a significant increase over the usual burdens of voting.'"

The dissenting justices, Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer, concluded that the law "threatens to impose nontrivial burdens on the voting right of tens of thousands of the State's citizens." They added that a "significant percentage of those individuals are likely to be deterred from voting."

The dissenting opinion also took issue with Indiana's provisional ballot system. Voters who do not have an ID can cast a provisional ballot. The ballot becomes validated only if the person appears in court or before the county election board within 10 days of the election and can establish his or her identity. Someone without an ID would be required to repeat this process in every subsequent election. This is a burden for indigent voters in a state that lacks public transportation in many areas.

Ironically, the issue of voter fraud - the reason that some Republican lawmakers use to justify voter ID laws - is a red herring. There is very little evidence of voter fraud in the United States. Yet the Supreme Court cited voter fraud as the primary reason for upholding the Indiana law.

It is unfortunate that the highest court in the land has turned its back on voting rights for all Americans. Voting should be made easier, not harder. By giving the green light for states to enact such repressive laws, they are enabling those who would turn the clock back on civil rights in this country.

In an election year where millions of new voters are being brought into the democratic process, this should concern us all.

High Court Should Ban Lethal Injections

By David A. Love
Published by Progressive Media Project and McClatchy-Tribune News Service

The Supreme Court should outlaw lethal injection as cruel and unusual punishment.

This term, the nation's highest court has agreed to hear a case challenging lethal execution on the grounds that it violates the Eighth Amendment to the U.S. Constitution.

Introduced in 1978, lethal injection was supposed to be a better alternative to hanging, the gas chamber, firing squad and electrocution—a clean, clinical, painless, more humane and therefore more acceptable form of capital punishment. It is used in 37 of the 38 death penalty states. Only Nebraska still prefers the electric chair.

Almost all states use the same three-drug cocktail of sodium thiopental (sodium pentothal), which induces unconsciousness, pancuronium bromide (or Pavulon), which causes muscle paralysis, and potassium chloride, which stops the heart.

But there are problems with lethal injection.

Death penalty critics say that sodium thiopental can wear off before the patient's heart stops, causing extreme physical and mental anguish. Moreover, the prisoner is in a chemical straitjacket and cannot tell anyone that he or she is in pain.

In its recent report, "Execution by Lethal Injection: A Quarter Century of State Poisoning,” Amnesty International notes that Texas, which executes more people than any other state, has banned the use of these chemicals on cats and dogs because of the pain they can cause.

The botched execution of Angel Diaz has added urgency to this case. The state of Florida put Diaz to death on December 13, 2006. But it took 37 minutes and two administrations of the drugs to get the job done. The first needle missed his vein, and Diaz was seen moving, blinking and mouthing words for 24 minutes.

Two Kentucky death row inmates—Ralph Baze, 52, and Thomas Clyde Bowling Jr., 54—sued their state in 2004 and have brought this challenge to the Supreme Court. It marks the first time the Supreme Court has considered the constitutionality of a method of execution since 1879, when the court upheld Utah's firing squad.

But this case is not just about Baze or Bowling. And it’s not just about the lives of the 3,281 men and 59 women who are on death row.

It’s also about what kind of country we are.

The justices should realize what more and more Americans are beginning to understand: There is no way to make lethal injection, or any other form of execution for that matter, humane.

Capital punishment is cruel and unusual punishment, whether a person is beheaded, strapped to a chair and electrocuted or laced to a gurney and injected with a deadly cocktail. It is a barbaric practice that most of the developed world, including the European Union, has outlawed, and it is a violation of international human rights law.

If these lethal injections are not suitable for pets, surely the court ought to find they are unsuitable for human beings as well.

Copyright © 2007 by David A. Love