Hullabaloo

Saturday, January 23, 2010

 
Nobody Asked

by digby

The Christian Science Monitor reports on Obama's weekly address on the Supreme Court decision and the article concludes with this perfect illustration of right wing ideology:

“To those for whom MoveOn.org and the countless left-wing 527 operations are the forces of truth and justice, and corporations the font of rich evil men of the 1930’s plutocratic cartoons, this case is a disaster for the commonweal,” writes Clarice Feldman on the conservative Pajamas Media website. “But for those of us who think free speech is inviolate, and more important in the context of elections than it is in flag burnings or obscenity cases, this decision is a long overdue righting of a preposterous error of legislative judgment.

Move-On, which polls its members and spends the money they send it specifically for the purpose of political activism is equivalent to billion dollar corporations which have only one goal and purpose: profits. And up until now, the poor corporations have been hamstrung having only been allowed to lobby, advertise their products and spend their money in any way they see fit except outright sponsorship of politicians. It's been terribly unfair to them, which is why they are so powerless in our system today. (Indeed, one could probably argue, and I'm sure we'll see it soon, that this is the reason our economy is in shambles.)

Meanwhile, the first amendment is inviolate except when it comes to individuals using "obscene" language or politically expressing themselves by burning a flag.(One assumes the right wingers would find that permissible too if a corporation paid someone a million dollars to burn it, however.)

This juxtaposition between the big bad Move-On and multinational corporations is absurd, of course. But right wingers really do believe that corporations are looking out for their interests. But this is understandable. They are authoritarian by nature and need to believe in institutions led by powerful men. They easily express that need through government when they have one of their own as "commander in chief," and can channel their loathing of egalitarianism into their love of martial violence and police power. Churches are slightly outre at the moment, but have often served as the repository of their longing for fatherly authority when their own tribal leaders are our of political power. Right now the institution of corporations are left to fill the bill. In the vacuum left by George W. Bush and Ted Haggard, the Randian Supermen become the Daddies. It's an odd time for it, since the Randian Supermen just destroyed the economy, but post-modern conservatism requires defiance of reality to such a degree that they are actually the perfect choice. (Plus they have all the money.)

Interestingly, the pro-torture, anti-fellatio Stuart Taylor seems to have decided to be a tepid contrarian on this one:

So the court's decision strikes me as a perverse interpretation of the First Amendment, one that will at best increase the already unhealthy political power of big businesses (and big unions, too), and at worst swamp our elections under a new deluge of special-interest cash. More ominously still, Citizens United v. FEC lends credence to liberal claims that all five of the more conservative justices are "judicial activists," the same imprecation that conservatives have for so long—and often justifiably—hurled at liberal justices.

Judicial activists—at least as I define them—are judges who are unduly eager to aggrandize their own power and impose their own policy preferences on the electorate. They invoke farfetched interpretations of the Constitution to sweep aside democratically adopted laws and deeply rooted societal traditions. I'd hoped that Bush-appointed Chief Justice John Roberts and Justice Samuel Alito, who came across in their confirmation hearings as believers in judicial modesty, would bring a healthy dose of restraint to a court long populated by activists, and would thereby shun sharp lurches to the ideological right. It appears that I misjudged them.

He certainly wasn't alone. Everyone wanted to believe that the very nice, mild mannered Roberts and Alito would be conservative, in the very "best" sense of the word, only overturning the kind of precedents that all the right people think should be overturned. And yet anyone could have predicted that they would always do the bidding of big business --- as befits all Federalist Society creatures whose purpose in life is to serve the wealthy interests of America.

Here's a pretty good analysis of Alito's views toward business at the time:

Looking forward, what kind of impact would a "Justice" Alito have on business interests? While it may sometimes be a mistake to conflate conservative interests with a "pro-business" stance, in Judge Alito's case, the two do seem to go hand in hand. As a disclaimer, by "pro-business," this article denotes a position supportive of the monetary interests of those who have incumbent positions of power in large corporations. It is possible that what benefits corporate management is not conducive to economic growth, particularly in the long-run.[funny --- ed]

As alluded to earlier, he has held plaintiffs in discrimination suits to a high burden of proof. In a case involving a woman who sued a hotel for firing her in retaliation for her complaining of sexual bias, Judge Alito took issue with the plaintiff's lack of explicit evidence. On a similar note, he wrote that an African-American woman needed clear evidence of discrimination to go to trial when her potential employer maintained it simply felt the white applicant was better qualified for non-racial reasons. Finally, he has also upheld arbitration agreements in employment contracts, a move which reduces legal expenses and tort vulnerability for employers.

Just as Alito favors high standards of proof for employees to charge discrimination, he also enforces similar standards for investor lawsuits, as evidenced by his opinion in a 1997 case involving the Burlington Coat Factory Warehouse Corporation. By tightening the pleading standards for investor lawsuits, Alito showed a preference toward better insulating businesses from legal intervention by shareholders.

Tort reform, or the concept of better protecting companies from injury lawsuits, has gained some ground in the legislature of late. At the Supreme Court level, the issue of capping punitive damages (recall the Merck Vioxx trial with $252 million in damages) has divided the conservatives. Strict-constructionist conservatives Scalia and Thomas oppose such limitations, while conservatives like O'Connor, Kennedy, and Rehnquist support them. Alito, like Chief Justice Roberts, is definitely a wild-card in this area, but many commentators feel both are more likely to take the position held by the late Chief Justice Rehnquist and permit narrowly-tailored limits on punitive damages.

In the area of antitrust, Alito is the kind of judge Microsoft would have welcomed when defending against Netscape's allegations of monopoly abuses several years ago. In a 2003 case, Alito voted to deny a $68 million award in favor of a small rival of the 3M Company. Largely because 3M did not price below cost, he felt their actions were appropriate.

In sum, if Samuel Alito is confirmed in the final Senate vote as most observers believe he will be, his brand of conservatism bodes well for corporate managers. His confirmation would mark a more important change than that effected by Chief Justice Roberts' assumption of the center chair. As a replacement for current swing-vote Sandra Day O'Connor, Alito would push the moderate conservative Justice Anthony Kennedy into the important role of deciding split cases. It may come as a disappointment to both extremes of the political spectrum, but Alito's tenure on the Court is likely to mirror his confirmation hearings in that it will be modest and uneventful in the eyes of those outside the legal world.

I can see why the authors thought this pro-business tilt would garner no attention. That's because in both the Roberts and Alito hearing it almost never came up. After all, Mrs Alito's feelings were hurt at the hearings so everyone had to sit down and shut up. And nobody seems to have paid attention to the court's corporate friendly decisions ever since then, both in the cases it accepts and the opinions it issues.

This was obvious to anyone who paid even slight attention to Roberts' and Alito's histories. But because our judicial confirmations are a kabuki soap opera instead of serious inquiry, everyone is perpetually "surprised" to find out that justices come onto the court with ideological agendas and a willingness to enact them. And then it's too late. Maybe it's time to stop pretending altogether that ideology doesn't matter in politics.



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digby 1/23/2010 01:30:00 PM |