As Election Day approaches, voters need to keep in mind one of the most important powers given to a president: the ability to nominate Supreme Court Justices. Judicial nominations take even more precedence in this election due to the fact that four current justices are in their seventies, making it likely that the next president will have the opportunity to nominate at least one or two justices, putting major progressive reforms along with a list of other issues at risk with the possibility of even one additional conservative justice to the Court. The stakes are highest for progressives because Breyer (74) and Ginsburg (79, the most likely to retire) tend to lean liberal in their decisions and a conservative-leaning replacement for either would give disproportional amounts of power to the conservative wing of the Court.

Romney has pledged to nominate individuals that align with extreme right-wing justices like Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts. Under the guise of securing “greater protections for economic liberty and greater scrutiny for regulation” and “judicial modesty,” a more conservative Court would ultimately limit the expansion of gay rights, further extend corporate influence in politics, attack women’s reproductive rights, and threaten the recently upheld healthcare legislation.

To understand the implications of a Supreme Court under Romney, one only needs to look at Romney’s choice of chairman of his Judicial Advisory Committee: Robert Bork, a right-wing extremist and advocator for Constitutional “originalism”, a radically conservative way to interpret the Constitution. Bork opposed the Civil Rights Act of 1964 and Roe v. Wade, and in 2007, Romney declared, “I wish he were already on the Supreme Court. He’s the kind of brilliant conservative mind that this court could use.” Clearly, Romney intends to shift the Court’s further to the right with nominations similar to Bork.

President Obama has been quite vocal regarding his opponent’s intentions with vacancies on the Supreme Court. In an interview with Rolling Stone, Obama made it clear that a Romney/Ryan administration would be in a position to overturn Roe v. Wade through the Supreme Court. In a recent appearance on the Tonight Show, President Obama again highlighted the importance of having a diverse Court especially when it came to Roe v. Wade. The President also recently emphasized the importance of the Supreme Court and marriage equality in the coming years during an interview with MTV, expressing opposition to the Defense of Marriage Act and hoping for its eventual overturning.

A more conservative Supreme Court would lead to a radical reinterpretation of the Constitution and a dramatic attack on equal opportunity and rights. If Romney is elected, this sort of Court would almost certainly become a reality.

Click for PFAW’s new report on the Court’s importance.

This week People For the American Way released a new report on the importance of the Supreme Court in the 2012 presidential election.

With less than a week until Election Day, the report highlights what is at stake for the future of the Supreme Court and its impact on the lives of individual Americans. Covering the potential impact on issues ranging from civil rights and workplace fairness to laws about money in politics and basic voting rights, the report examines pivotal court cases decided by the Roberts Court and analyzes the likely impacts of a Court shaped by Governor Mitt Romney.

As Romney himself notes, a Romney Court would include more justices like Clarence Thomas, Samuel Alito and Antonin Scalia–the Justices who brought us Citizens United, who slammed the courthouse door shut on women fighting pay discrimination, and who consistently twist the law beyond recognition to rule for corporate interests over the rights of individual Americans.

The appointment of just one new conservative Justice would have profound consequences. As the report notes:

“With so many cases affecting nearly every aspect of our lives being decided by slim majorities – often just one vote – the stakes for Supreme Court nominations couldn’t be higher.”

 

With lifetime time appointments and the power to eliminate critical rights, a Supreme Court nominated by Mitt Romney is just too dangerous — and too extreme — for America.

Legal scholar Erwin Chemerinsky writes in the LA Times that the Supreme Court is a critical issue in the presidential campaign, although candidates don’t always talk as prominently about it as they do other subjects. But if you care about any number of issues, you should care about the Supreme Court. He writes:

So why are the candidates ignoring this issue? Their advisors probably have told them that voters don’t care, or at least that it is unlikely to matter to the crucial undecided voters. But this may well be creating a self-fulfilling prophecy because voters won’t care unless the candidates choose to make the composition of the courts an important election issue.

 

But I have seen that audiences do care greatly about the future of abortion rights, the corrosive effects of money in politics, the rights of gays and lesbians to marriage equality and so many other issues that are decided by the courts. All this and so much more will turn on who picks the next Supreme Court justices.

 

Indeed, a recent survey and two focus groups conducted by Hart Research Associates for People For the American Way, the Alliance For Justice Action Campaign, and the Leadership Conference on Civil and Human Rights demonstrate that the Supreme Court is an important issue for voters, one that significantly favors President Obama over Mitt Romney.

The survey results show that a majority of independent voters and presidential swing voters say the issue of who will serve on the Supreme Court is an important consideration in their vote this year. According to the survey, what most concerns voters – a full 54 percent  – is their worry that Romney will nominate justices who will consistently favor corporations over ordinary Americans.

Independent voters have greater confidence in President Obama than they do in Mitt Romney with respect to Supreme Court nominations. The president has an 18-point advantage among swing voters. Independent women prefer Obama over Romney on this score by 19 points. Among women swing voters, that advantage grows to 26 points. The survey analysis explains:

The president’s advantage over Romney rests on two main elements. First, voters believe Obama (61%) is much more likely than Romney (39%) to appoint justices who “would uphold the progress we have made on civil rights and women’s rights.” Second, most voters trust Obama (59%) rather than Romney (41%) to choose justices who “will protect the rights of average people, not just the wealthy and powerful.” Among swing voters, Obama enjoys commanding advantages of 55 points and 49 points, respectively, on these two dimensions.

 

That is why Vice President Biden brings up the Supreme Court in venues ranging from the vice presidential debate in Kentucky to campaign rallies in Iowa. That is why President Obama talked about the Court in a recent Rolling Stone interview published last week.

That is also why Romney and his campaign are bending over backwards to pretend his Supreme Court Justices won’t do exactly what he’s promised the far right they will do.

Romney knows that the Supreme Court is a winning issue for President Obama.

The Romney Court campaign is a project of People For The American Way, a non-profit organization with a long and storied history of fighting the right and pushing back on right-wing attacks on the court and other social justice issues.

In 1987, People For The American Way fought back against the nomination of the judicial extremist Robert Bork to the Supreme Court — the same Robert Bork who Mitt Romney has appointed to chair his Justice Advisory Committee. In 2012, People For has launched the Romney Court campaign to fight back against the same threats to our civil liberties and economic values that threaten the American Way by way of the Supreme Court.

What do you do to win over abortion rights supporters if you’ve spent your whole presidential campaign telling right-wing activists you’re anti-choice? For Mitt Romney, the answer is simple: lie!

First there was the TV ad assuring women that under a Romney administration, they would have nothing to worry about. Then Romney told the Des Moines Register that no anti-choice legislation “would become part of my agenda.” Then the right-wing Concerned Women for America — one of the staunchest opponents of abortion rights out there –backed him up with an ad saying that Romney could do nothing to overturn Roe v. Wade.

The main problem being, of course, that Romney’s official position, which is on his websiteand which he has stated on video, is that he intends to appoint Supreme Court justices who will overturn Roe v. Wade, in effect criminalizing abortion in as much as half the country. The next president will likely get the opportunity to nominate at least one Supreme Court justice. If that president is Romney, the movement to overturn Roe will likely gain a majority on the Court.

But apparently the Romney camp thinks that just lying about Roe v. Wade is still the right way to go. Former Sen. Norm Coleman, who is campaigning for Romney in Ohio, told a group of voters yesterday that Romney would have no power to eliminate abortion rights through the Supreme Court:

“President Bush was president eight years, Roe v. Wade wasn’t reversed. He had two Supreme Court picks, Roe v. Wade wasn’t reversed,” former Sen. Norm Coleman (R-MN) told a Republican Jewish Coalition meeting in Beechwood, Ohio. “It’s not going to be reversed.”

 

If Coleman were to do some simple counting, he would realize that Bush did not have the opportunity to put an anti-Roe majority on the Court. His appointments of Samuel Alito and John Roberts only got the Right very, very close to that long-held goal. Mitt Romney would unquestionably and deliberately put them over the edge.

But of course, Coleman knows that. And so does Romney. They’re just hoping that they can tell anti-choice activists one thing and abortion rights supporters another, and somehow get away with it.

There is a particularly interesting reader comment to Jonathan Bernstein’s column on why the Supreme Court is the most important issue in the presidential election (which we blogged about here). One very conservative commenter posted on why he wanted Mitt Romney to nominate the next Supreme Court Justices, citing his desire for a “commonsense view of the words of the Constitution.” Yet when asked if he thought that the Framers had intended for corporations to have all the rights of people, he expressed a view much more in line with the dissent in Citizens United than the arch-conservative majority:

ABSOLUTELY NOT.(Perhaps that is the DUMBEST decision EVER by the SCOTUS.) – CITIZENS UNITED is a PERFECT EXAMPLE of WHY we need a STRICT CONSTRUCTIONALIST & ORIGINAL INTENT Supreme Court.

 

The same commenter railed later against the idea that corporations have the right to spend money to affect elections.

Of course, you can’t use just one comment to extrapolate to all conservatives. But it is a wholly unsurprising response from a conservative voter who is presumably not tied up with the corporate elite. Indeed, a survey released last week that was commissioned by the Corporate Reform Coalition reveals that 66% of Republicans and 63% of conservatives believe a ban on corporate funded political ads would improve politics in this country.

Citizens United is the most notorious but by far not the only example of the arch-conservatives on the Supreme Court bending the law in order to game the system to favor the already-powerful at the expense of ordinary people everywhere. They’ve:

• severely limited the ability of victims of pay discrimination to obtain compensation for the discrimination (Ledbetter v. Goodyear Tire and Rubber)
• made it harder for victims of systemic employment discrimination by large employers to file class action lawsuits (Wal-Mart Stores v. Dukes)
• empowered large corporations to cheat their customers in violation of state consumer protection laws (AT&T v. Conception)
• crafted a new constitutional rule on an issue not even discussed by the parties in order to de-fund public sector unions (Knox v. SEIU)

This is just some of the damage done by the Justices that Mitt Romney promises to use as his models if he is ever given the chance to fill a vacancy on our nation’s highest court. As much damage as Romney could do to America over a four-year term, that is nothing compared to the damage his Supreme Court Justices would do over the decades of their lifetime service on the Court.

In contrast, President Obama has a track record of nominating Supreme Court Justices who respect the words and the values of the United States Constitution, who have a deep understanding of the impact of the law on ordinary Americans, and who take a balanced approach to cases rather than being ideologically driven to transform the law to benefit the powerful.

Add the Washington Post’s Jonathan Bernstein to the large list of pundits recognizing the critical importance of the Supreme Court as an election issue. He writes:

But as important as [the survival of the Affordable Care Act] is, I don’t think it’s the No. 1 thing at stake.

That thing is the Supreme Court.

It’s likely that the next president will replace at least one justice. If Mitt Romney wins next month and his party benefits from an improved economy by 2016 (not a certain scenario, but one that wouldn’t be surprising), then we’re talking about eight years and a very good chance of putting four justices on the bench.

 

Mitt Romney has promised to fill the Supreme Court with extremists like Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts. These four have, time and again, bent the law and confounded logic in order to benefit big corporations. In contrast, President Obama has a track record of nominating thoughtful and moderate Justices like Sonya Sotomayor and Elena Kagan.

Bernstein writes:

On every issue that’s at stake in the election, whether it’s the economy or executive power in national security or climate or yes, health care, a court in which Chief Justice John Roberts is the median voter would be enormously different from one in which, say, Elena Kagan is in the middle.

 

In an America transformed by a Romney Court, power would flow to the already-powerful, and the middle class would be even more vulnerable and at risk.

- Full Article Here -

by Thom Hartmann and Sam Sacks

Ten years from now we will all look back at this upcoming election and we’ll realize that it was here that the Progressive wave of reform that surged forward at the turn of the 20th Century – and made life better for billions of people in this nation over the last 100 years – finally broke and receded backward into the abyss.

We’ll realize it was here when the original corporatists like the DuPonts and the Morgans, and today’s corporatists like the Kochs, finally won their ruthless, century-old struggle against progressivism, against equal economic opportunity for all, and against equal civil rights for all.

We’ll reside in a nation where the old are no longer cared for with Social Security and Medicare. Where the impoverished young are no longer cared for with Medicaid and food assistance. Where women will again be forced into back-alleys for coat hanger abortions. Where minorities will again be relegated to second-class citizens. Where working people will again fall into indentured servitude without protections like a minimum wage and collective bargaining. Where our democratic institutions are so hollowed out by corporate money that they are completely unresponsive to “we the people.”

And we’ll reside in this neo-feudal state run by 21st Century Robber Barons all because we let Mitt Romney win the White House in 2012 and we let him hand-pick a new crop of Conservative corporatist Supreme Court justices to reign over the United States for at least the next generation.

Since 1803 when Marbury v. Madison gave rise to judicial review, the Supreme Court, which was intended to be the third of three co-equal branches of government, has risen to be the ultimate authority in our government. Today, we have nine unelected kings and queens able to create completely new laws or strike down old laws passed in Congress by “we the people” and signed by a President elected by “we the people.” Like the Oracles of Delphi, the Supreme Court has been the final arbiter time and time again over which direction this nation moves in.

And today, with the Conservative movement more emboldened than ever to undo the New Deal, redefine the general welfare clause in our Constitution, and reverse social policy back a half-century, in the coming years it may again be the High Court that will give the final say in this ideological struggle.

And the ideology that controls the court will win this struggle.

On the Left, Justice Ruth Bader Ginsburg is 79-years-old and Justice Steven Breyer is 74-years-old. And on the Right, Justice Antonin Scalia is 76-years-old and so is Justice Anthony Kennedy. One, two, maybe all four of these justices will be retiring during the next Presidential Administration and it will be up either to Barack Obama or Mitt Romney to pick their successors.

If the President is re-elected, we’ll get more justices like Elena Kagan and Sonia Sotomayor who still believe that progressive reforms like Social Security and Medicare are constitutional. They still believe that child labor laws and the minimum wage are constitutional. They still believe in a woman’s right to choose.

If Mitt Romney is re-elected, we’ll get justices like Clarence Thomas and Antonin Scalia who both believe all those progressive reforms just mentioned are unconstitutional and should be overturned immediately. Worse, we’ll get justices recommended by Robert Bork.

Bork was Reagan’s nominee to the Supreme Court in 1987, but he was rejected by the Senate because of his radical beliefs. Today, Bork is Mitt Romney’s constitutional adviser.

Back in 1987, at the time of Bork’s nomination, the late Senator Ted Kennedy took to the floor of the Senate to talk about Bork’s grim vision of America:

Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy …No justice would be better than this injustice.

 

Robert Bork and his ilk, from which Mitt Romney will handpick his Supreme Court nominee, have a radically different vision of America than the Progressives who built the middle class in the 20th century and expanded equal rights to hundreds of millions of our fellow citizens.

Progressivism, which brought us new rights like the right to protection from poverty in old age, protection from sickness, protection from the ravages of involuntary unemployment, protection from hunger, protection from discrimination, you name it, hangs by a thread. And its fate will be determined this election.

While most of the focus in the media has been on whether or not the plutocrats will pay their fair share in taxes, whether Obamacare will be upheld, or whether women will have access to contraceptives, the highest stakes are on the Supreme Court, and which ideology will hold sway for the next few decades in that most powerful branch of our government.

With just days to go until this election, you can vote for whoever you want. But you must consider the consequences of a Mitt Romney presidency. Noam Chomsky understands those consequences and suggested that those who vote in a swing-state must vote in self-defense against Mitt Romney, which means voting for Barack Obama. He’s right. We must be voting against those who wish to close the book on progress.

Drone wars, indefinite detention, the growing surveillance state, the war on whistleblowers – they’re all grotesque policies that started with Bush and since have been championed by this administration. But these policies will, sadly, not be overturned at the ballot box. They’ll be overturned by movements in the streets – and progressives must begin building those movements right now.

But the fate of over a hundred years of progress will be decided at the ballot box during this election, because the Supreme Court is hanging in the balance.

Progressives ignore this reality at our own peril.

With as many as three Supreme Court Justices possibly stepping down in the next four years, either Barack Obama or Mitt Romney will have a profound and lasting influence on the nation’s highest court. And since federal judges have lifetime positions, the president’s impact will last decades after he has left the White House. That is why, as TPM reports today, conservatives are bullish that a Romney Court could reverse the great advances in justice of the past century.

Liberal-leaning Justices Ruth Bader Ginsburg, 79, and Steven Breyer, 74, are likely candidates for retirement during a Romney administration, the GOP nominee has vowed to appoint staunch conservatives, and the influential conservative legal community will make sure he follows through.

 

Replacing even one of the liberal justices with a conservative, legal scholars and advocates across the ideological spectrum agree, would position conservatives to scale back the social safety net and abortion rights in the near term. Over time, if a robust five-vote conservative bloc prevails on the court for years, the right would have the potential opportunity to reverse nearly a century of progressive jurisprudence.

 

For all those reasons, conservative legal activists anticipate that a Romney win would be the culmination of their decades-long project to remake the country’s legal architecture.

 

The article is must-reading for learning about the vision of America that a Romney Court would impose on us. As many people know, abortion rights would almost certainly be eliminated. But also in the crosshairs are the federal government’s authority to run critically important programs like Medicare, Social Security, and Medicaid. As the article makes clear, conservatives make no secret of their agenda.

The powers conservatives most want to limit are rooted in the Constitution’s Spending and Commerce Clauses, which the Supreme Court already constrained in its decision to uphold the Affordable Care Act. The Supremacy Clause could also be circumscribed with one more conservative vote, potentially limiting people’s ability to sue if government assistance laws are not properly implemented.

 

The ACA decision revealed that there are already four votes on the Court to prevent the Taxing Clause from being used to promote regulatory goals. And though the staunchest legal conservatives hope a fifth vote might lead to the eradication or restructuring of programs like Medicare and Social Security, [conservative professor Randy] Barnett cautions that the debate over the scope of that power dates “all the way back to Alexander Hamilton.”

 

The far right has long bristled against the vision of the Constitution as a document designed to give the federal power robust powers to pass laws addressing national problems and protecting ordinary people from being exploited from those who are far more powerful than they are. They hearken back to an era when a different arch-conservative Court “protected” the “economic liberty” of powerless workers to “agree” to work all day every day at slave wages under horrific conditions. Their cramped vision of congressional authority would severely undermine the American people’s power to use Congress address national problems that states and cities alone cannot solve.

Jamie Raskin, a senior fellow at our affiliate People For the American Way Foundation, has written about how the far right’s interpretation of the Constitution is at odds with the intent of the founders, and how a robust federal government is essential to giving the American people effective power over our own economic and social life.

The far right has long awaited a complete takeover of the Supreme Court, so they could return our country to a dark time when the economically dominant were able to abuse their power over others with impunity. They have been anxiously awaiting the day when they could retake power from the American people.

That day will be soon, if Mitt Romney becomes president and fulfills his promise to populate the Supreme Court with right wing ideologues.

Rolling Stone published an interview with President Obama yesterday in which he discusses what would happen to the Supreme Court – and to the American people – if Mitt Romney wins the election and gets to fill the next Supreme Court vacancies.

When asked if Roe v. Wade would be overturned, the president responded:

I don’t think there’s any doubt. Governor Romney has made clear that’s his position. His running mate has made this one of the central principles of his public life. Typically, a president is going to have one or two Supreme Court nominees during the course of his presidency, and we know that the current Supreme Court has at least four members who would overturn Roe v. Wade. All it takes is one more for that to happen.

 

President Obama also criticized Chief Justice Roberts’ ruling that the Affordable Care Act, while a constitutional exercise of Congress’s taxing power, was not constitutional under the Commerce Clause.

The truth is that if you look at the precedents dating back to the 1930s, this was clearly constitutional under the Commerce Clause. I think Justice Roberts made a decision that allowed him to preserve the law but allowed him to keep in reserve the desire, maybe, to scale back Congress’ power under the Commerce Clause in future cases.

 

Although it was mentioned in the interview, the Court’s ACA decision also limited Congress’s ability to set basic program requirements in federal-state partnerships like Medicare.

If Mitt Romney fills the next vacancies on the Court, the far right Justices will be able to aggressively roll back congressional authority. It is through Congress that the American people are able to address national problems like healthcare, the environment, worker safety, and the economic safety net. And it is through Congress that the American people are most effectively able to hold corporations accountable for their actions when they harm the American people.

But it is through Mitt Romney’s Supreme Court that the far right would severely weaken the power of the American people to act through Congress.