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My Near-Out-of-Body Experience While Watching the Debate Last Night: Hearing Clinton’s Answer To the Supreme Court Nominees Question

OMG.

It came so late in the debate—the third-last question, the second-last on policy agenda, less than 10 minutes before the end.

Asked what she would be looking for in selecting her Supreme Court nominees, she began not with a culture-wars answer or by referencing the need for diversity among the justices as concerned with race and gender identity, but instead by saying she would look for diversity in professional background.

O. M. G.

Then she mentioned Court review of state and federal laws concerning voting rights and ease of access to exercise the right to vote.

She then pointed out the need for new justices who would be willing to reconsider Citizens United if there is to be actual chance to the stranglehold that billionaires and mega-corporations and specific industries—the financial services, fossil fuels, pharmaceuticals, healthcare insurance—have on government at every single level that matters to those industries, via their funding (so much of it secretly) of candidates and the political parties.

And then there was this: In a single, brief but eloquent, clause, she told the voters who were watching that the current Republican appointees to the Supreme Court, and most of those appointed by Republican presidents in the last three decades—and those who Donald Trump has made clear he would appoint—are, quite literally, simply proxies for Big Business.  Against individuals and against small businesses.

Only then did she note the obvious: that Roe v. Wade and LGBT-rights Supreme Court opinions that brand-new Justice Scalias would reverse.

In other words, her purpose was to educate the public about the whole panoply of things that Supreme Court appointments will do, rather than just reminding them of what they already knew.

It took my breath away.  She was channeling me.*  She really could appoint Jeffrey L Fisher* as her first or second Supreme Court nominee.

I also really loved her answer to the question after that one—the one about energy and environmental policy.  I loved the substance and I loved her soft-spoken and heartfelt manner as she answered it.

I was disappointed about a few things: One was that in her response on healthcare insurance she didn’t mention the Public Option—although maybe that was because she recognized, as I did, that Trump did her a yuge favor by saying that she wanted a single-payer (a.k.a, Medicare-for-All-type) insurance system, something she did not dispute.  And she wonderfully pointed out that Trump wanted to return the healthcare-insurance system to one in which the insurance companies have carte blanche control over it.

I also was disappointed that she didn’t point out that Trump’s campaign is funded very substantially by an oil magnate and two finance-industry billionaires—the Mercers and the Ricketts.

And I was surprised and disappointed that she didn’t make clear that Trump’s proposed fiscal policies would add—what?—$10 trillion to the national debt in the space of about 10 minutes, or something.

But as the debate ended I sat back and realized that I am now a genuinely enthusiastic Hillary Clinton supporter.  I will happily, not grudgingly, vote for her, in the actual belief that she will be what I’d been hoping for so fervently: a true progressive in the White House.

I don’t think she’s the candidate—or the person—she was throughout the campaign until late last month.  I really don’t.

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*Links added, 10/10 at 2:02 p.m.

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My Comments-Thread Comment to Robert Waldmann’s “From Small Town to Prison” Post

Robert Waldmann did something this morning that I’d planned to do: He posted an in-depth post about the NYT’s awesome article in yesterday’s paper titled “From Small Town to Prison,” by Josh Keller and Adam Pearce.

Robert makes a critical point about the fiscal cause of the phenomenon that the Times article reports on, and my rather lengthy comment to Robert’s post adds some things that I’d planned as the key point to my post.

Here is my comment in the Comments thread to Robert’s post:

“It is caused by prosecutorial discretion with laws which allow extremely long sentences combined with plea bargaining. If the sentence for the actual crime committed weren’t absurdly long, DAs would not be able to help their counties at the expense of the state.”

That certainly is true, but it also is caused by the complete takeover of the U.S. Supreme Court by the Conservative Legal Movement, which has removed any access to federal court in order to challenge through the habeas corpus process anything—and really, I do mean, as a practical matter, anything—that occurs in state or local court proceedings, however flagrantly violative of even basic constitutional rights.

For state-court criminal cases, these Supreme Court justices (not to be confused with justice; they’re justices, a title, nothing more) these people took an already awful federal-court jurisdictional statute that Bill Clinton cravenly signed in 1996 in order to avoid, y’know, soft-on-crime attacks during his campaign for reelection, and (very) effectively rewrote it to actually completely preclude federal habeas review of ANYTHING that transpires in ANY state or local court.

This was done in the name of states’-rights-to-violate-individual-rights-except-religion-gun-ownership-and -real-property constitutional rights. Er—I mean—in the name of FREEDOM. A.k.a., LIBERTY.

What I hadn’t realized, though, Robert is that because it’s the states that pay for state prisons, there is an incredibly strong incentive for these county DAs and judges to put everyone they can in prison, and or as long a time as is allowed—which according to the Supreme Court is as long as they want. One major achievement of the Conservative Legal Movement is that the Supreme Court has nullified the Eighth Amendment’s prohibition against cruel and unusual punishment.

A 12-year sentence for selling a handful of narcotic prescription painkillers, admittedly highly addictive drugs, is both cruel and (happily) unusual, and should be challenged as violating the Eighth Amendment. But under Supreme Court precedent from the current crowd+Antonin Scalia the lower federal courts probably would reject the argument.

I’m so glad you posted this post, Robert. I read the Times article yesterday and planned to include it in a post I plan to write soon whose main subject is my anger about the push by some progressive senators* and by some other progressives to get the Senate to confirm Merrick Garland to fill Scalia’s seat. This is beyond misguided. And it makes no sense.

The big, big progressive complaint about Garland is that he is pro-law enforcement, and especially pro prosecutor—and not all that concerned about such matters as specific constitutional rights such as Fourth Amendment search-and-seizure limitations and, well, other things. But Garland is, I guess, progressive on the kinds of things that corporate conservatives and culture-wars conservatives care about. In other words, he’s fine for conservatives on law-and-order stuff that is politically passe even among most Republicans, but is from the perspective of the Republican donor base and culture-wars base he’s not fine. So why push this guy? Why the hell was he even nominated, in the first place?

(Okay, he was nominated because Obama, like so many other political types, thinks it’s still 1988. But actually it’s not still 1988.)

There are more than a fair share of former prosecutors and other former government lawyers on the Supreme Court and the lower federal benches. There are almost no former criminal defense lawyers and civil rights lawyers on the federal bench at any level, and it’s been, like, forever since there’s been on the Supreme Court unless you count Ginsburg’s Women’s Issues legal background. It’s really, really, REALLY time for one. Or, hey, even two!

Hillary Clinton owes her nomination to African-Americans, and she may well owe her election to them. At a minimum, she’ll owe her large margin of victory to them, if it materializes. So I’ve been wondering: Who will be her first Supreme Court nominee? And her second one?

Everything about Hillary Clinton suggests that if she decides to pay attention to Blacks in her Court selections, she’ll go with appointing a second Black to the Court. I mean, hey—another first! Which she will conflate with, Hey! Someone who will actually matter to a significant numbers of African-Americans in what he or she DOES on the Court.

Which is not to say that that there are no African-Americans who would be terrific for the position; one I know of is an Obama appointee to the Fourth Circuit Court of Appeals, based in Richmond, VA. Or I should say, that’s my impression, although I don’t know all that much about him. But Clinton likely will just operate on the assumption that the specifics of the nominee don’t matter, other than the specifics of race.

My strong, strong preference would be Jeffrey L. Fisher, who was highlighted in one of NYT Supreme Court correspondent Adam Liptak’s occasional Sidebar articles last month titled “Criminal Defendants Sometimes ‘Left Behind’ at Supreme Court, Study Shows.”

And to replace Ginsburg when she retires next July, the drop-dead awesome Vanita Gupta, Obama’s current Justice Dept. Civil Rights Division chief. (Kudos, Mr. President!) Gupta would be the first Asian-American on the Court, which means Clinton actually might appoint her! She won’t appoint Fisher, although there’s no one in the country who could come close to having the impact that Fisher would have on the Court because of his victories at the Court in gaining Scalia’s vote on some major constitutional-criminal-law issues.

Anyway … I’ve inserted into your post a link to the Times article, and corrected a typo (“2006”, rather than “206”). Your posts get a lot of readers, and I hope this one will be no exception even though it’s not on economics, except of course indirectly.

And I want to add this: I would love to see Pence asked about this at his debate with Kaine. And if he’s not asked about it by the moderator, Kaine should raise the point.

Okay, so I guess I’ve now posted that post I’ve been planning to post about progressives trying to push through Garland’s confirmation.  Good; one more thing I can check off my to-do list.

Oh. The title I’d planned for it: “The Really Awful Advice That Some Dem Senators Are Giving to Clinton.” They want her to announce now that she will renominate Garland to the Court–the idea I guess being that the Republican senators might as well confirm him now, although I have no idea why, since she’d be promising to nominate him rather than a young liberal. Garland is in his mid 60s.

Even more bizarre than that argument, Harry Reid also advised Clinton** that she should renominate Garland even if she doesn’t promise, pre-election or pre-inauguration, to do so, because, they say, she’ll be too busy in the first few months of her term to have someone new vetted and then have her administration shepherd the nomination through the Senate.

Seriously; that’s what that article about this that I linked to above  says.* The theory being that the new administration won’t be able to chew gum and walk backward at the same time, and Supreme Court appointments aren’t important.

So there we have it. Some Senate Democrats’ advice to Clinton is to throw away a Supreme Court appointment because it’s just easier that way.

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NOTE: The last five paragraphs were added after original post was posted. 9/3 at 4:20 p.m.

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UPDATE: Reader Nihil Obstet posted this comment in the Comments thread:

One of the great successes of the elite is to weaponize the Supreme Court nomination process by limiting it to culture war issues. We have to vote for our party’s candidate because of abortion, affirmative action, religious freedom, gun regulation, and sexual orientation. Both Democratic and Republican politicians are very happy with those issues. When I’m told that the election is all about the Supreme Court appointment, my reaction is, “You’re not helping your cause by saying that it’s crucial to get more Merrick Garlands on the court.”

I’m not seeing any focus among progressives about the need to reverse the erosion of personal rights with regard to the power of the state and of the corporations.

I responded: Exactly.

Added 9/3 at 4:44 m.

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* Link corrected. 9/3 at 4:56 p.m.

** I erroneously said originally that “these senators” advised this.  But it was only Harry Reid who did, according to the article.  Apologies to Dick Durbin, Chris Coons and Chuck Schumer, the other senators the article mentions.  Also: Durbin apparently is playing a role in this because he is minority whip.  He’s one of my favorite senators, and so I’m a bit disappointed, but I guess he feels that as whip he has to participate in pushing for Garland’s confirmation. 9/3 at 5:08 p.m.

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A Question For Democratic Senate Judiciary Committee Members to Ask Sri Srinivasan If Obama Nominates Him to Fill Scalia’s Seat

In private practice, prior to his appointment to the appeals court, Srinivasan successfully represented former Enron Corp CEO Jeff Skilling in a Supreme Court case. The Supreme Court narrowed the reach of the so-called honest services fraud law, invalidating one theory used by prosecutors for Skilling’s conspiracy conviction and ordering further appeals court review. Despite the high court ruling, Skilling’s conviction was later upheld by an appeals court.

Srinivasan also represented Exxon Mobil Corp in a lawsuit alleging human rights abuses in Indonesia, and mining giant Rio Tinto in a similar case about its activities in Papua New Guinea. Both cases concerned in part whether a law called the Alien Tort Statute allows such cases to be heard in U.S. courts. The Exxon case is still ongoing. The Rio Tinto lawsuit was dismissed.

Judge who could replace Scalia worked on controversial cases for business, Jonathan Hurley, Reuters, today

There are, of course, some questions about the Exxon Mobil cases that he should and probably will be asked, by Democratic members of the Judiciary Committee if Obama does nominate him, as the betting folks in Washington expect.

Far less controversial, in my opinion, is his representation of Jeffrey Skilling.  The federal honest-services fraud statute, which the Court held, at Srinivasan’s urging as a partner in the Supreme Court Practice group at the Washington, DC office of mega-legal-powerhouse Los Angeles-based O’Melveny & Myers, was too vague to comport with constitutional dictates of due process of law.

But what is controversial, in my opinion, is how it happened that this particular criminal defendant managed to garner the attention and support of at least four justices (the minimum needed for the court to grant a petition to hear a case), in a case that challenged a criminal statute as unconstitutionally vague.

The Supreme Court has a preset number of cases it will hear each year (a fact that itself is ridiculous and inappropriate).  I believe the number is about 70.  Almost all of the cases that fill those spots—court term after court term after court term—are heard at the behest of lawyers who fall into one of three categories: attorneys representing law enforcement, usually the state’s attorney asking the Court to reverse a lower federal appellate court’s grant of a petition for writ of habeas corpus on behalf of a convicted state-court criminal defendant, but also “cert.” petitions asking the Court to reverse a monetary judgment against a law enforcement officer in a civil rights lawsuit; a lawyer from one of the rightwing self-styled legal foundations around the country serving as pro bono counsel in a culture-wars and Koch-brothers-wish-list cases (think: affirmative action, attempts to nullify the Voting Rights Act, attempts (currently, at the Court) to profoundly restructure legislative reapportionment; you get the picture); and a member of so-called Supreme Court specialist bar, whose actual specialty is putting the lawyer’s name, law firm and Washington, DC. Office address on the cert. petition, for a fee that only corporations, lobbying groups and individuals of the Jeffrey Skilling personal-wealth set, have access to.

Pretty much no one else need apply, although roughly 9,000 others each year do. Many of them to the tune of about $7,000, the de facto application fee, the typical cost for the 40+ copies of the cert. petition and appendices, printed by one of three printing companies that exist because they print these things with the (very) nonstandard sizing and binding-into-a-cute-little-booklet precision that the Court’s rules mandate.  A high cost for the privilege in participating in a charade.  A steep admission fee, deliberately so; there is no conceivable justification for it, given today’s modern technology for printing, electronically transmitting, and e-reading.

I mean, y’know, no legitimate justification for it.

In recent years, the Court has, in my opinion appropriately, agreed to hear a number of cases that challenge on vagueness grounds the constitutionality of criminal statutes.  But they are always federal statutes rather than state ones, and almost always are heard at the behest of someone whose cause correlates with a Republican interest, of the culture-wars variety or of the corporate-folks variety.

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Okay, let’s have a show of hands here: How many of you progressives want Obama to nominate a moderate to take Scalia’s seat? Because the Supreme Court should always be comprised only of arch-conservatives and a few moderates. How many want a former prosecutor, on the theory that the federal bench does not already have enough former prosecutors, and because the Supreme Court is just toooo pro-non-white-collar criminal defendant and tooo favorable to civil rights plaintiffs involved in the criminal-justice system?

Or how about another former Washington corporate mega-law-firm partner?  Like John Roberts?! Only moderate.  I mean, but what if he or she is an Asian?  And would be the first Asian on the Court?!  Or a woman?  Or, and a woman?

Or what if she’s a woman whose husband is a military reservist?!  Or is a black former prosecutor, no gender preferred?  Or has political experience?!  (These are all actual shortlisters.)

Oh, stop.  Just stop.  Please.  Really.

The list of shortlists published since Scalia’s death was announced about 24 hours ago is long, as are some of the lists.  And two or three of those on the lists are actual progressives.  But the overwhelming majority are not.  These assembly line lists do reflect what are considered the political realities, and Obama is widely viewed by non-Republicans as a political-realities type of guy.

Including by me.  And by Hillary Clinton.  And by Bernie Sanders.

But one of us three believes that there is a special place in hell for Democratic politicians who criticize President Obama as insufficiently progressive.  A place assigned by African-American voters, at least in the South, and especially in South Carolina.  The other two of us beg to differ.

Had Justice Scalia’s death occurred a few weeks before the South Carolina primary rather than eight days before, these opposing views might have been put to the test.  Obama might by now have nominated a Black or Asian-immigrant or female moderate whose name appeared first on his long shortlist and then on his short shortlist by dint of the algorithms that produce such shortlists.  Clinton would shout her support from the hilltops of the Blue Ridge Mountains, Sanders would criticize her for shouting, and Clinton would shout: sexism.

But Sanders also would criticize the choice, further securing that special place in hell.  Or maybe not securing it, since this is 2016, not 1996 and not even 2006.

Actually, although the shortlist list-makers mostly haven’t noticed, this is the age of Ferguson, of Eric Garner, of Sandra Bland, of Walter Scott, etc., etc.  It is the age of (as Ferguson is a poster town for) extraordinarily inappropriate bail requirements.  It is the age of the funding of local government via exorbitant traffic fines, petty (trumped-up) ordinance-violation fines, metastasizing court fees, and prison fees.  It is the age of extremely belated (but extremely welcome nonetheless) broad public recognition that prosecutor misconduct is commonplace (and is tacitly invited by opinions issued by the Supreme Court in a variety of cases).

And it would be deeply offensive for Obama, or for that matter a second President Clinton, to nominate another Elena Kagan—or anyone who has no background in representing non-white-collar criminal defendants, especially in state courts or in federal habeas corpus cases that challenge state-court convictions, or related types of civil rights litigation.

It’s now permissible to mention the interests of the people whose lives are most profoundly and most directly affected by Supreme Court appointments.  Really.

Really.

My suggestions for Sanders’ (preferably very, very) shortlist, each of them with impeccable credentials and awesome accomplishments, are Jeffrey Fisher, the head of Stanford Law School’s Supreme Court Clinic, and Robert L. Wilkins, an Obama appointee on the D.C. Circuit Court of Appeals.

Fisher is not on anyone’s shortlist but mine, to my knowledge, but should be.  Among the shortlists that I’ve read, Wilkins appears only on one: Slate’s Dahlia Lithwick’s.  She writes about him:

Robert L. Wilkins (D.C. Circuit Court of Appeals): Age: 53. Wilkins, a black American who was raised by a single mom, has a law degree from Harvard Law School and served as special litigation chief for the D.C. Public Defender Service. Wilkins gained attention for civil rights battles he has waged, including a precedent-setting fight against police racial profiling in Maryland, and for his work on the National Museum of African American History and Culture.

Wilkins was not on my radar screen until I read Lithwick’s article today.  He now ties for first place on my list.  I’d love to see them both on the Court.

Another name on Lithwick’s list, Goodwin Liu, has been on my radar screen for a long time. Lithwick writes about him:

Goodwin Liu (California Supreme Court): Age: 45. The son of Taiwanese immigrants, Liu was an Obama pick for a seat on the 9th Circuit in 2010 but was blocked by Republicans. He has distinguished himself as a left-leaning moderate on California’s high court. Given his prior confirmation battles, this would be an especially heavy lift.

His 2010 nomination to the 9th Circuit Court of Appeals was filibustered by Senate Republicans because as a law professor at UC Berkeley in 2005 he gave strong testimony against Samuel Alito during Alito’s confirmation hearing.  He predicted that Alito would be exactly the kind of justice that he is.

Lui as a high-profile liberal law professor at UC Berkeley was outstanding.  But I read not long ago (I can’t remember where) what Lithwick says in her article: that he’s more moderate than expected as a state Supreme Court justice.  I don’t know what the specifics are.  But he’s brilliant and presumably is navigating a course geared toward another nomination to a federal appellate court or to the Supreme Court.

A bonus if Lui’s nominated: the highlighting of exactly how spot-on he was about Alito. And an education for the public about the specifics of Alito’s tenure as a justice.  As well as the fun of imagining the childishly thin-skinned Alito suddenly faced with the prospect of possibly having Lui as a colleague.  (That’s three bonuses, not just one.  But he’s still only my third choice.)

If Sanders is willing to soon have a tentative shortlist, I dearly hope he will borrow mine.  It’s not copyrighted.  And I have no pride of authorship.

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