Judicial Watch • Supreme Court Battle Looming

Supreme Court Battle Looming

Supreme Court Battle Looming

MAY 08, 2009


May 8, 2009


From the Desk of Judicial Watch President Tom Fitton:

Obama and the Supreme Court – Conservatives Should Be on the Alert

Supreme Court Justice David Souter announced he was retiring week, providing Barack Obama his first opportunity to make his mark on the High Court. Souter will leave the bench at the completion of the Supreme Court term on June 30th.

According to The Washington Post:

U.S. Supreme Court Justice David Souter plans to retire, giving President Barack Obama his first chance to make an appointment to the nation’s highest court…An appointment by Obama…would not likely shift the court’s ideological balance of power. But Obama could name a younger justice who could serve for decades — beyond his own presidency even if that turned into two terms, or eight years.

So what type of justice will Barack Obama nominate? Of course, we have our clues. During the presidential campaign Obama said he would appoint judges who have the "empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old."

And here’s what he said just this week about the type of justice he will nominate to replace Souter:

I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people’s lives, whether they can make a living, and care for their families, whether they feel safe in their homes, and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.

Americans want the Supreme Court to make decisions based on the Constitution and not on some lawless standard that puts identity politics before the law. If Obama nominates someone in line with his promises, U.S. Senators who want to protect the Constitution will have no choice but to oppose his nominee.

With Senator Arlen Specter switching teams last week, joining the Democratic Party, and with Al Franken looking the favorite to steal the Senate seat recently held by Republican Norm Coleman, Obama should, in theory, have no trouble having any nominee confirmed.

But his radical vision for the Supreme Court will put his nominee and even some Democratic Senators in a corner. And this will be a test for Republicans who talk a good game on activist judges but who become supine when it comes time for key votes.

Conservatives should use this coming nomination debate to draw clear distinctions between activist judges like Justice Souter who too often make decisions based on personal whims and prejudices and those who respect the rule of law and try to make decisions based on the text and original meaning of the U.S. Constitution.

Judicial Watch, of course, will be an active participant in this debate.

Judicial Watch Educates Northern California City on Illegal Day Labor Site

Count Mountain View, California among the cities that have come under Judicial Watch scrutiny for its support of an illegal alien day labor site. We’ve been keeping our eye on Mountain View for some time now. This week, we took action again as city officials prepare to vote on a permit application for the Mountain View Day Worker Center that would move the center to a permanent location. (The permit application is currently suspended due to public opposition to the day labor site.)

Last month, in an interview with the San Jose Mercury News, Mountain View Mayor Margaret Abe-Koga said immigration is really a "federal issue." When asked about Judicial Watch’s opposition to the taxpayer-funded day worker center, the mayor said she doesn’t know what Judicial Watch wants.

We took the comment as an invitation and sent a letter on May 5 thoroughly explaining our position. Here’s an excerpt:

A hiring center for day laborers, who are comprised primarily of illegal aliens, facilitates unlawful employment by matching day laborers with the scofflaw employers seeking to hire them. Actions by the City in support of the Day Worker Center "undermine" the purposes of federal immigration law as they encourage the type of employment that federal law seeks to eliminate. Hence, employment of illegal aliens is not merely a "federal issue," as actions by a municipality which simply run contrary to the purposes of federal law are prohibited.

This is not the first time Judicial Watch has tried to eductate officials in Mountain View about the law. In April 2008, Judicial Watch wrote to then-Mayor Tom Means expressing our concerns. However, since that time the city has actually increased its financial support of the illegal alien labor site (using taxpayer dollars, of course) and has provided other forms of support as well, including leasing city property to the center for parking.

Next week, on May 12, city officials will decide whether or not to extend a conditional use permit to the day worker center, thereby allowing it to continue to operate. Our Director of Research and Investigations, Chris Farrell, has already testified last month during a Mountain View City Council meeting in an effort to explain that the city’s support of the site is in directy violation of federal law.

Let’s hope our activism pushes city officials to reconsider their support of the illegal day labor site.

Judicial Watch Uncovers New FCC Documents on Fairness Doctrine Debate

If the Fairness Doctrine is dead, as President Obama has said, you wouldn’t know it from the batch of documents Judicial Watch obtained from the Federal Communications Commission (FCC). We filed our original FOIA back in December 2008 to find out what internal government discussions have taken place surrounding the reimplementation of the Fairness Doctrine, which was abolished in 1987. And there was much discussion for sure.

Not only do the documents show that controversy continues concerning the Fairness Doctrine, the FCC is considering alternative proposals that may regulate free speech in the media just as much under the professed goal of "diversity."

Here’s one example:

In December 2007, the FCC proposed new "localism" measures to force broadcast stations to offer programming more "responsive to the needs and interests of the communities that they are licensed to serve." These proposed measures, highlighted in a document entitled, "The Report on Broadcast Localism and Notice of Approved Rulemaking," included a requirement that broadcasters, "provide 3 hours per week of locally-produced program," and that licensees establish "permanent advisory boards (including representatives of underserved community segments)."

The FCC noted that these measures would become part of the application renewal process to make sure broadcasters "meet their responsibilities." (A nice way for the government to say, "Do it or else.")

Problems with this "localism" proposal are highlighted in a legal memo written by Kathleen Kirby of the law firm Wiley Rein and submitted to Rosemary Harold, serving as legal counsel to FCC Commissioner Robert McDowell. In the document, which was distributed internally at the FCC, Ms. Kirby advises that the Fairness Doctrine "would do well to stay dead." Ms. Kirby then turns her attention to "Localism," advising that such a policy could represent a "stealth enactment" of the Fairness Doctrine. Ms. Kirby States: "Convene permanent advisory boards? Give aggrieved listeners ‘more straightforward guidance’ on ‘how individuals can directly participate in the license renewal process?’ That sounds mild. But then again, so did the Fairness Doctrine."

One thing is for certain. These documents show that we are going to have to keep an eye on this FCC. The last thing our country needs is bureaucrats in the Obama administration stomping on the First Amendment rights of conservatives.

By the way, Judicial Watch will host a panel discussion regarding the "Fairness Doctrine" May 14th, 12:30 – 2 p.m., in the First Amendment Lounge of the National Press Club, 14th & F Streets, NW, Washington, DC. I’ll be sure to have an update for you in a future installment of the Weekly Update.

Until next week…

Tom Fitton
President

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