Constitutional Interpretation and Change

by Jeremy Leaming

Sen. Rand Paul, (R-K.Y.) may be a strident, sometimes over-the-top Tea Party supporter and fervent antigovernment advocate, but his filibuster of President Obama’s pick to head the C.I.A. was principled. He did so by actually taking to the Senate floor to explain, albeit in very long fashion, his opposition to the administration’s nominee C.I.A. John Brennan, who was confirmed today for the position.

Paul’s action was far different than the Republican obstructionists’ baseless and practically silent filibuster of Caitlin Halligan to a seat on the U.S. Court of Appeals for the District of Columbia Circuit. As Greg Sargent writes in The Plum Line, “Paul’s filibuster was born out of concern about an actual issue – objections to Obama’s approach to drone warfare that are shared on both sides of the aisle.” [See below for more commentary on the Obama administration’s secretive use of drones]

Halligan, however, was blocked by senators who on the whole probably spoke less than two hours about Halligan. And their objections were incredibly lame. She’s received the ABA’s highest ranking for qualification and exceedingly strong support in the legal community, both conservatives and progressives.

Republican senators have been obstructing the judicial nominations process ever since Obama first took office. The president was not able to appoint a judge to the D.C. Circuit during his first term because of Republicans’ obstinacy. There is simply a great desire among the Senate Republicans to keep as many vacancies open, especially on the powerful D.C. Circuit, for as long as possible. These obstructionists are beholden to a base that coddles the superrich and riles up a shrinking group, albeit loud and still influential, obsessed with keeping the courts packed with right-wing ideologues. Too many of those right-wing jurists help support state efforts to abolish abortion and make life much more difficult for those in the LGBT community and undocumented persons.

The sham filibuster, which is the preferred tool of the Senate’s obstructionists, has become the norm. It has been used to halt consideration of policy such as efforts to confront climate change or address immigration reform; but it has most often been used to delay or kill executive branch or judicial branch nominations. Indeed, thanks to the sham filibuster, the Republicans have helped create more than 80 vacancies on the federal bench. In fact vacancies have hovered at 80 or above for much of Obama’s term. The Senate Republicans’ assault on the federal bench, serves their political purposes, but harms the judiciary and Americans who rely on the courts to uphold constitutional rights and seek redress of grievances. A federal bench burdened with fewer judges and larger caseloads is no way for the judiciary to function.

by Jeremy Leaming

California State Assembly Speaker John A. Pérez (D-Los Angeles) and 22 legal scholars are urging the U.S. Supreme Court to invalidate the discriminatory Proposition 8, saying it not only yanks constitutional rights from lesbians and gay men, but also prevents state lawmakers like Pérez from pushing for marriage equality legislation.

In the friend-of-the-court brief lodged in Hollingsworth v. Perry, the speaker and law professors argue that until Proposition 8 came along the state recognized that gay couples should not be treated differently than opposite-sex couples.

“Many gay couples in California are raising children. Many gay teenagers in California need a vision of the future in which they are full participants in the life of their families and communities. And many gay men and lesbians have a fundamental longing to know that as they pass through their days, their lives will not go unnoticed. The State recognizes these basic human feelings for heterosexuals, and before the passage of Proposition 8, the California Constitution protected gay people as well, recognizing their fundamental right to marry,” the brief states.

But after enactment of Proposition 8, the brief continues, “voters eliminated more than the equal right to marry. Under principles of California law and current interpretations by the California Supreme Court, Proposition 8 eliminated the ability of those seeking equal marriage rights to avail themselves of any ability to pursue such rights through the political actions of their accountable elected representatives.”

Pérez, in a press statement about the brief, said the constricting nature of the antigay law “deprives a historically disadvantaged group – a group of which I am a member – of access to traditional representation in a representative democracy. And the deprivation violates the Constitution.”

And other California politicians would like to help advance equality. The Pérez brief notes that Edmund Brown and Kamala Harris “ran and won in 2010 on platforms supporting equal marriage rights and voting to oppose the continued effect of Proposition 8, neither of them can take action to end this case as the voters desire them to do.” Brown is the governor and Harris the attorney general.

The Obama administration, though not a party in the case, filed a brief yesterday with the high court also calling for an end to Proposition 8 and for a broad approach to protecting equality. Some commentators say the Obama brief did not call for an end to all state laws that prevent marriage equality. Yet the brief did call for laws classifying the LGBT community to be subjected to heighted scrutiny. This means that if government, federal or state, bars a group of people from getting married, like lesbians and gay men, but allows their straight counterparts to wed, it should be prepared to overcome a heavy burden as to why equal protection should be flaunted. And As the San Francisco Chronicle’s Bob Egelko notes that “underlying rational – that laws discriminating against gays and lesbians must be struck down unless they serve some important government purpose – could, if adopted by the court, invalidate bans on same-sex marriage in all 41 states that have them.”

The Pérez brief urges the high court, when addressing the “federal constitutional issues” in Hollingsworth, to “be mindful of the unique aspects of California law and the ways in which Proposition 8 has eliminated not just equal marriage rights formerly guaranteed by the state Constitution, but also the ability of gay men and lesbians in California to achieve marriage equality through the normal political process. If gay people can be denied access to representative government to achieve equal treatment with respect to an important status such as marriage, then in California, any other small, historically disadvantaged minority group can also be denied the right to representation with respect to seeking any other fundamental right.”

Beyond advancing a profoundly compelling argument for equal protection, the brief reveals how Proposition 8 is fundamentally anti-democratic policy.