As the NSA spying scandal has progressed, congressional Democrats have grown co-opted by an Obama administration committed to defending, entrenching, and perpetuating the Bush administration’s legacy—despite the president’s campaign promises in 2008 to reverse it. This co-optation spells grave threats not only to partisan Democrats, but also to principled progressives attached to an ideology inadvertently weakened by partisan Democrats aligned with the president.
Rallying around President Obama…to shoot themselves in the feet
In August 2013, during the debate on the House defense appropriations bill, only 7 votes protected the NSA from debilitating budget cuts that would have ended its domestic bulk collection activities. Seven members of Congress could have changed the outcome of the vote, reflecting a razor thin (under 2%) margin of victory for the surveillance state.
That margin of victory could be explained in many ways. One explanation may surprise progressives: Democrats from the Bay Area and Chicago, representing safe blue seats, who were outspoken about surveillance abuses at one point, comprised the NSA’s entire margin of victory. They chose to resign their principles, oaths of office, and constituents’ concerns in order to support their partisan patron, the president. They’re carrying the Bush administration’s water because it’s now President Obama holding the glass.
by Sam Bagenstos, Professor of Law, University of Michigan Law School; former Principal Deputy Assistant Attorney General for Civil Rights, U.S. Department of Justice
The Americans with Disabilities Act (ADA) is our nation’s Emancipation Proclamation for people with disabilities, and it is the envy of the world. The United States is far more accessible than any other nation. Americans with disabilities have far greater opportunities to participate in the mainstream of political, civic and economic life than do individuals with disabilities in other countries. Although our nation has not yet fully realized the promise of the ADA, we are far ahead by any international standard. The point is sometimes hard for me to remember as I spend my time fighting to ensure that states and private entities comply with the ADA. But every time I meet with students or activists with disabilities from other countries, they heap praise on America’s commitment to accessibility and inclusion.
But America’s leadership on disability access has been drawn into question, because we have not yet ratified the UN Convention on the Rights of Persons with Disabilities (CRPD). This convention, colloquially known as the Disability Treaty, embeds the principles of the ADA in international human rights law. It was opened for signature in 2007 and came into force in 2008 when 20 countries ratified it. President Obama signed the treaty in 2009, but the Senate has refused to ratify it. Last December, a ratification vote narrowly failed, with the measure receiving 61 of the necessary 67 votes in the Senate.
The Senate is poised to take up the treaty again soon, with a hearing in the Foreign Relations Committee scheduled for this week. This time around, here’s hoping the Senate heeds the counsel of the treaty’s bipartisan band of supporters—including such Republican stalwarts as former President George H.W. Bush, former Senate Republican Leader Bob Dole, former Attorney General, Senator and Governor Dick Thornburgh, 2008 Republican presidential nominee Senator John McCain and former Secretary of Homeland Security Tom Ridge—and consents to ratification.
In December, the Supreme Court is scheduled to hear an important case out of Mount Holly, New Jersey, that involves Fair Housing Act (FHA) claims in the context of an effort by Mount Holly Township to use eminent domain to redevelop its only predominately minority community – and in the process, displace and raze the homes of its residents. As such, the case raises an important test of whether conservatives hate eminent domain more than they detest civil rights statutes like the FHA that protect minority homeowners from unjustified disparate impact. The answer apparently is the latter.
As everyone knows, the property rights movement has led a crusade against eminent domain in the courts over the past decade, highlighted by the case of Kelo v. New London. While they lost Kelo, property rights groups such as the Institute for Justice and the Pacific Legal Foundation (PLF) have used public sentiment against the Kelo ruling to fuel ballot initiatives and legislation that have passed in whole or in part in 42 states. A critical talking point for leading groups in this crusade has been the impact that eminent domain can have on low-income and minority communities. This concern has activated some important groups on the Left. For example, the NAACP, the Southern Christian Leadership Conference, and other big names of the civil rights community filed briefs for the plaintiff in Kelo alongside the property rights groups.
It would seem, then, that something we could all agree on is that eminent domain should not be used as a tool for racial discrimination. That is precisely what is being alleged by the homeowners in the Mount Holly case, whose homes are slated to be demolished to make way for a planned community of significantly more expensive housing units with a tony-sounding name, “The Villages at Parker’s Mill.” They are seeking a court hearing on their claims under the FHA that the township is employing eminent domain in a way that unjustly disadvantages minority homeowners and residents.
“[I]n our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Fifty years ago this past March, Justice Hugo Black wrote those words for a unanimous Supreme Court in holding that the Sixth Amendment provided Clarence Earl Gideon with the right to counsel, despite his indigent status, as he stood trial in Florida for allegedly breaking and entering a Panama City pool hall.
Gideon v. Wainwright forever changed American jurisprudence, ensuring that guilt or innocence in a criminal matter would be fairly adjudicated, regardless of a defendant’s economic circumstance. But as states and the federal government have dramatically slashed their budgets over the last several years, the promise enshrined by Gideon has come under increased threat as public defenders have seen theirbudgets bear a significant brunt of these cuts.
Congressman Ted Deutch (D-Fla.) introduced this week a bill to help remedy the effect of these cuts and ensure the promise of Gideon. Entitled the “National Center for the Right to Counsel Act,” the measure would establish a private, non-profit center to provide “financial support to supplement…funding for public defense systems” as well as provide “financial and substantive support for training programs that aim to improve the delivery of legal services to indigent defendants.” The Act would also create geographically-based “regional backup service centers” which would provide public defenders with access to investigators and sentencing mitigation experts as well as information on available financial grants. A nine-person “State Advisory Council” would be formed in each state to monitor the quality of public defender services and ensure compliance with the Act.
by Emily J. Martin and Cortelyou Kenney, National Women's Law Center. Ms. Martin is the Vice President and General Counsel of the NWLC. Ms. Kenney is a Cross-Cutting Legal Projects Fellow at the NWLC.
Thirty-five years ago today, the Pregnancy Discrimination Act (PDA) was signed into law, remedying the Supreme Court’s 1976 decision in General Electric Company v. Gilbert which held that discrimination on the basis of pregnancy was not sex discrimination, but rather discrimination between pregnant and non-pregnant persons. Congress acted quickly to rebuke this analysis by passing the PDA, which recognizes what is obvious to most – that discrimination on the basis of pregnancy is unlawful discrimination on the basis of sex. The PDA also makes clear that women affected by pregnancy, childbirth, or related conditions must be treated at least as well as other employees “not so affected but similar in their ability or inability to work.” As a result of the PDA, once-common policies – such as forcing pregnant women off the job regardless of their ability to work – are no longer permissible.
Yet pregnancy discrimination still persists more than a generation after the PDA’s passage. This is in part because stereotypes about pregnant women persist in the workplace, despite the law’s protection. But even more troublingly, pregnancy discrimination also persists because some courts have read the language of the PDA narrowly, ignoring both its plain language and its intent while also limiting its protections for pregnant workers.
Specifically, courts have opened loopholes in the PDA that have too often left without protection those women who need temporary work accommodations because of pregnancy. Many women work through their pregnancies without any need for accommodation, but some pregnant workers, particularly those who work in more physically demanding or less flexible jobs, need some adjustments in work rules or duties. When their requests for reasonable accommodations – such as being allowed to carry a water bottle, refrain from climbing ladders, or avoid heavy lifting – are refused, pregnant workers must often choose between their paycheck and a healthy pregnancy even when their employers provide similar accommodations to employees who need them because of disability or injury.