The words of President Lyndon Baines Johnson echoed at the beginning of each program of the Civil Rights Summit in the LBJ Auditorium last week in Austin, Texas. A montage of historic photographs followed onscreen to a soundtrack of songs about change or progress mixed with other recordings of LBJ’s iconic words. I had the privilege of attending the panels on Wednesday and Thursday as well as the address by former President Bill Clinton and the keynote address by President Barack Obama.
I have started to realize that when commemorating the anniversary of certain laws or court decisions like the Civil Rights Act, or last year, with Gideon v. Wainwright, it becomes more than simply a celebration; it is an evaluation of how far we have come and how far we must go, and it is a call to action. As President Clinton said in his speech, saying “thank you” to the politicians and activists who made the signing of the Civil Rights Act possible is not enough.
University of Texas’ President Bill Powers introduced the Summit’s panels by talking about UT’s involvement with civil rights. Powers acknowledged that UT has not always been on the right side of history, and in fact the university played a role in stalling “separate but equal” in Sweatt v. Painter in 1950. Today, the university awaits the a decision by the U.S. Court of Appeals for the Fifth Circuit in Fisher v. University of Texas that was vacated and remanded by the Supreme Court last year. “We stand ready to defend diversity.”
Forty-five years ago today, the U.S. Senate voted 69-11 to confirm Thurgood Marshall as the 96th Justice of the Supreme Court. That historic vote made Marshall the nation’s first African American justice and helped blaze a trail for others to follow.
When President Lyndon Johnson nominated Marshall to the high court, he understood the historic importance, not just for the future of the court itself but for the broader issue of civil rights. Said Johnson, “I believe it's the right thing to do, the right time to do it, the right man, and the right place.”
Times sure have changed; only one of those 11 votes against confirmation came from the Republican side of the aisle. But Johnson did get some 20 other southern senators to abstain from the vote; they faced the choice of alienating portions of their constituencies who couldn’t stomach an African American on the highest court or voting against the president and his historic choice.
Marshall’s background is well known, from his more than two decades with the NAACP to his myriad arguments before the Supreme Court, culminating in the historic 1954 Brown v. Board of Education case that rejected the “separate but equal” doctrine in public education. President John F. Kennedy put Marshall on the U.S. Court of Appeals for the Second Circuit, and then Johnson made him solicitor general before the final promotion.
As time quickly approaches for the U.S. Supreme Court to consider the highly politicized challenges to the Obama administration’s landmark domestic accomplishment, health care reform, anxieties are rising among supporters over the strategy used to craft and defend the law.
Lazarus, author of an ACS Issue Brief on the constitutionality of the ACA’s minimum coverage provision, which requires certain people to purchase health care coverage starting in 2014 or pay a penalty via their income tax return filings, notes that some preeminent health policy experts, such as Paul Starr, argue that lawmakers would have been smarter to root the minimum coverage provision in Congress’s power to tax, instead of both in its power to regulate commerce and to levy taxes.
Acknowledging that Starr’s “stature is beyond question,” Lazarus, public policy counsel for the National Senior Citizens Law Center, maintains that “on this matter of legal strategy, his certitude seems naïve. Indeed, especially in light of the ACA mandate’s actual track record in court to date, his take seems downright backward.”
First, Lazarus notes that opponents of the administration were itching to scuttle its health care reform law -- regardless of what constitutional power the mandate was rooted.
He writes, “The steam powering their opposition sprang from two sources: 1) partisan politics, part Tea Party zeal and the desire to discredit Barack Obama and obstruct his agenda; and 2) a hope, animating the libertarian legal advocates who staffed the lawsuits, of replacing existing law with pre-New Deal, so-called ‘Lochner Era’ doctrines that would invalidate substantially all 20th–century regulatory, civil rights, and safety net legislation.”
Next Lazarus defends the administration’s case for the ACA, saying before the current high court it looks best in the “Commerce-Clause format.”
Lazarus concludes, in part, that a string of “eminent conservative appellate judges have blown off opponents’ demands to overturn this allegedly ‘unprecedented’ federal power-grab. On the contrary, Republican appointees have concluded that upholding the ACA mandate is compelled by the text of the Commerce Clause and Supreme Court precedent, that it is no more ‘coercive’ than other measures, such as dedicated taxes and tax write-offs undergirding major existing health-insurance laws, and even, that the ACA’s approach could be a valuable model for conservative designs to privatize other components of the social safety net.”
With more than 80 vacancies on the federal bench and courts’ workloads piling up, it is far past time for the U.S. Senate to overcome the rancor surrounding judicial nominations and start confirming judges, two law professors, who have been intimately involved with the federal judicial nominations process, write in a new ACS Issue Brief.
In their Issue Brief, UNC School of Law Professor Michael Gerhardt and University of Minnesota Law School Professor Richard Painter write that an effort hatched in 2005 by the so-called “Gang of 14” senators to help avert a crisis over judicial nominations has failed to foster continued cooperation on confirming judges, which in turn has resulted in a high vacancy rate on the federal bench. The professors argue that the plan, which centered on a promise not to filibuster judicial selections “unless there were ‘extraordinary circumstances,’” has not held up well.
Gerhardt, who helped craft policy for the Clinton administration on the judicial nominations process, and Painter, who served as President George W. Bush’s chief ethics lawyer, explore the origins of the Gang of 14’s agreement on judicial nominations, but call on senators to reach a new accord on ending the ongoing delays of judicial nominations, which have resulted in a sustained high vacancy rate on the federal bench.
The authors note that Senate leaders, “particularly Republican Members, have long called for reform of the process for confirmation of judicial nominees and an end to the filibuster.” The two cite a 2005 law review article by Texas Sen. John Cornyn who wrote, “It is time to end the blame game, fix the problem, and move on. Wasteful and unnecessary delay in the process of selecting judges hurts our justice system and harms all Americans. It is intolerable no matter who occupies the White House and no matter which party is the majority party in the Senate. Unnecessary delay has for too long plagued the Senate’s judicial confirmation process. And filibusters are by far the most virulent form of delay imaginable.”
A series of catastrophic regulatory failures in recent years has focused attention on the weakened condition of regulatory agencies assigned to protect public health, worker and consumer safety, and the environment. The failures are the product of a destructive convergence of funding shortfalls, political attacks, and outmoded legal authority, setting the stage for ineffective enforcement and unsupervised industry self-regulation. From the Deepwater Horizon spill in the Gulf of Mexico that killed eleven and caused grave environmental and economic damage, to the worst mining disaster in 40 years at the Big Branch mine in West Virginia with a death toll of 29, the signs of regulatory dysfunction abound. Peanut paste tainted by salmonella, lead-paint-coated toys, sulfur-infused Chinese dry wall, oil refinery explosions, degraded pipes at U.S. nuclear power plants: At the bottom of each well-publicized event is an agency unable to do its job and a company that could not be relied upon to put the public interest first.
Although everyone should be able to agree that these events are intolerable to the extent they are preventable, thoughtful analysis is too often sidetracked by the nation’s polarized debate over the role of government in our daily lives. Conservative commentators argue that accidents like the Gulf spill are the inevitable byproducts of industrialization, daunting in the best of times but having little to do with government failure. They say that over-regulation is a far more serious problem than under-regulation because bureaucrats run-amok are hobbling the country’s long-delayed recovery from a devastating world-wide recession. Progressive commentators respond that one of the government’s most important jobs is to prevent industry from trading safety for profit, by compelling manufacturers to install redundant, fail-safe mechanisms to protect public health and the environment. Spills, explosions, unchecked carbon emissions, tainted drugs, and unhealthy air pollution represent chronic failures by government to forbid conduct that lies in the mainstream of business as usual.
During his presidential campaign, Barack Obama seemed to subscribe to the progressive view, declaring that the role of government is to help people when they cannot help themselves and raising the strong expectation that he would sponsor affirmative reform to prevent the damage produced by the sharper edges of a capitalist economy.