May 29, 2009

From the Desk of Judicial Watch President Tom Fitton:

In Supreme Court Battle, It Is Empathy Versus the Rule of Law

You have to give Barack Obama points for clarity when it comes to his judicial philosophy. The president has been unambiguous with respect to the types of judges he will appoint to the Supreme Court. During the presidential campaign, Obama said he favored judges with the "empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old."

When Justice Souter recently announced his retirement, Obama tipped his hand regarding the type of justice he would appoint to replace Souter when he said, "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."

Then word came Monday that the president would nominate to replace Souter 54-year old Judge Sonia Sotomayor, who certainly appears to be the personal embodiment of Obama’s judicial philosophy, which places a premium on personal feelings over following the law. (Please view our initial press statement concerning her nomination.)

For example, during a "cultural diversity lecture" at the University of California (Berkeley) School of Law in 2001, Judge Sotomayor said the following: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life."

Judge Sotomayor also said she believes "experiences as women and people of color" should "affect our decisions [as judges]."

This racist statement is identity politics at its worst and it has absolutely no business on the bench.

Just ask yourself this question: What happens if you enter Judge Sotomayor’s court room and you happen to be the "wrong" gender, race, or sexual orientation? Will you be granted a fair hearing?

No litigant should have to ask themselves this question when entering the court, any court.

And if Judge Sotomayor’s feelings guide her judicial decisions, justice in her courtroom operates on a constantly shifting landscape, depending day to day, perhaps even moment to moment, on Judge Sotomayor’s moods, biases, and personal whims.

How could anyone have confidence that justice will be served in this scenario?

It used to be the ability to completely set aside one’s personal feelings was the high mark of impartiality to which all judges aspired. Liberals want to turn impartiality into a weakness so they can use the courts to advance a political agenda that has failed at the ballot box. (This is what we call judicial activism.)

Conservatives believe when applying the rule of law there is only one standard: apply it equally at all times. Judges must ensure that all litigants are given a fair hearing regardless of their personal feelings and biases.

This point seems to be lost on President Obama and his Supreme Court nominee. And so, here is the question that members of the U.S. Senate must now answer. Will they vote to confirm a justice who will make her decisions based on empathy and her personal feelings about a litigant? Or will they demand a nominee who uses the rule of law as a principle guide, applying the law equally to everyone who comes before the court, regardless of race, gender or sexual orientation?

If members of the U.S. Senate care one whit about the U.S. Constitution, they will reject this appointment.

And let me be clear, it will be up to everyday Americans to show leadership on this. Democrats and unprincipled Republicans would like nothing more than to rubber stamp this nomination and move on. To let your Senator know what you think about having someone with Judge Sotomayor’s racist views sit on the Supreme Court, call 202-224-3121. And don’t presume that a Republican Senator is on your side or that a Democrat is against you.

You can be sure we’ll have a lot more to say about this battle in the coming weeks.

ACORN to Assist with 2010 Census, "Law Enforcement and Anti-Immigrant" Groups Shut Out

You remember the "community organization" ACORN, right? This is the organization currently under investigation in multiple states for illegal activity during the 2008 election, including voter fraud. Well apparently this criminal activity is of no concern to the Obama Commerce Department, which recruited ACORN in February to assist with the 2010 Census.

But wait, it gets worse.

Among the groups prohibited from participating in the U.S. Census — "…Hate groups, Law enforcement, anti-immigrant groups, any groups that might make people fearful of participating in the Census…" That’s right, law enforcement organizations and groups that oppose illegal immigration are now lumped in with "hate groups" by the Obama administration. (Perhaps this should come as no surprise, considering the Obama Department of Homeland Security’s ridiculous report released in April linking opposition to illegal immigration with "rightwing extremist radicalization.")

Now let me step back for a moment and tell you how we discovered all of this.

In March, press reports suggested that ACORN was invited to participate in conducting the U.S. Census, leading to a tremendous uproar from the public, which was well aware of ACORN’s illegal activity. There was some disagreement, however, over just how substantial this partnership would be.

In its official statement responding to the ACORN controversy, for example, the Obama Commerce Department downplayed ACORN’s participation in the Census, and labeled "baseless" the notion that ACORN would be involved in any Census count.

To get to the truth in the matter, Judicial Watch fired off some Freedom of Information Act (FOIA) requests, and when the Obama administration stonewalled, we threatened a lawsuit, which led to the release of 126 pages of documents one day later related to the ACORN-U.S. Census controversy.

These documents clearly demonstrate that despite protestations from the Obama Commerce Department, the partnership between ACORN and the U.S. Census Bureau is extensive.

For example, the Census Bureau offered ACORN the opportunity to "recruit Census workers" who would participate in the count. Moreover, as an "executive level" partner, ACORN has the ability to "organize and/or serve as a member on a Complete Count Committee," which, according to Census documents, helps "develop and implement locally based outreach and recruitment campaigns."

According to its application, ACORN also signed up to: "Encourage employees and constituents to complete and mail their questionnaire; identify job candidates and/or distribute and display recruiting materials; appoint a liaison to work with the Census Bureau; provide space for Be Counted sites and/or Questionnaire Assistance Centers; sponsor community events to promote participation in the 2010 Census," among 18 requested areas of responsibility. The documents also show the decision to add ACORN as a partner occurred in February, long after the January 15^th Census partnership application deadline. (One Census official had bet "it was under Bush.")

Here are a few other conclusions from the documents, which can be read in full here:

• The Census Bureau requested that ACORN "help us highlight [ACORN’s] innovation and hard work and share best practices so other organizations can learn from your experiences."
• Members of the Census Bureau and Department of Commerce staff assigned to organize the 2010 Census were unaware of when the decision to involve ACORN was made, how the Census Bureau choose and defined partners, or whether partners received payment.
• The Census Bureau did not conduct background checks on the 3.7 million people hired to conduct the 2000 Census, unless a preliminary name check provided a match. Overall, 8% of the applicants, or over 300,000 people, were considered risks for hire.

Now, why is ACORN’s involvement in the Census so potentially damaging? According to the U.S. Census documents, among other things, census data is used to allocate $300 billion in federal funds. Census data also "determines how many seats each state will have in the House of Representatives as well as the redistricting of state legislatures, county and city councils, and voting districts."

It should go without saying, that given its history of illegal activity and fraud, ACORN should be nowhere near the 2010 Census. And the attempt to demonize conservatives by lumping together law enforcement and anti-immigration groups with "hate groups" is shameful, to say the least, and potentially illegal as this discriminatory policy raises First Amendment concerns. For some reason, President Obama seems intent on politicizing the Census.

Judicial Watch will continue to monitor this controversy and I will be sure to update you in this space as events warrant.

Did Justice Department Reverse Legal Ruling to Give Cover to Obama Administration

Speaking of politicizing federal government agencies…

On May 20, 2009, the Obama Attorney General’s Office of Legal Council issued a legal memo reversing itself on the interpretation of the Emoluments (or Ineligibility) Clause of the U.S. Constitution, just in time to file a motion to dismiss a Judicial Watch lawsuit opposing Hillary Clinton’s appointment as Secretary of State under this clause.

Judicial Watch filed a lawsuit against Hillary Clinton on behalf of U.S. Foreign Service Officer and State Department employee David C. Rodearmel. (Click here to read the lawsuit. Click here to read a statement from our client.)

Here’s the issue in a nutshell. Under the "Emoluments" or "Ineligibility" clause of the U.S. Constitution, no member of Congress can be appointed to a civilian position within the U.S. government if the "emoluments" of the position, such as the salary or benefits paid to the office occupant, increased during the term for which the Senator or Representative was elected.

According to Judicial Watch’s lawsuit, the "emoluments" of the office of U.S. Secretary of State increased three times during Mrs. Clinton’s most recent U.S. Senate term. Therefore, she is ineligible to serve in this capacity. (The same is true for Obama’s Secretary of Interior, former Senator Ken Salazar.)

Now, up until about a week ago, the standing legal opinion on the matter by the Office of Legal Counsel (OLC), written in 1987, was completely consistent with Judicial Watch’s line of reasoning.

Here’s what Chuck Cooper, head of the Office of Legal Counsel wrote in 1987, related to the appointment of members of Congress to fill a vacancy on the U.S. Supreme Court:

The salaries of all Associate Supreme Court Justices were increased on February 4, 1987 to $115,000. Therefore, whatever the ultimate fate of the salary applicable to the Supreme Court seat now vacant, it is plain that the Emoluments of that "civil Office" were "encreased" during the time for which each now seated congressman "was elected." The plain meaning of this clause thus disqualifies those, now serving in Congress from being appointed to the Supreme Court.

Cooper also took issue with the so-called "Saxbe fix" whereby the salary of the position is rolled back to get around the constitutional provision.

"…a number of past administrations have circumvented the effect of this Clause…by having Congress restore the salary of the office to which the President sought to appoint a sitting congressman to the amount paid for that office when the prospective nominee assumed his seat in Congress…It is therefore necessary to examine this practice to determine if it comports with either the letter or the spirit of the Constitution. We conclude that it does not, and therefore recommend against the use of such a device."

Contrast this opinion with the "new and improved" legal memo release on May 20, 2009, written by Acting Assistant Attorney General David Barron:

"…we believe that, where a salary increase for an office would otherwise create a bar to appointment of a member of Congress under the Ineligibility Clause, compliance with the Clause can be achieved by legislation rolling back the salary of the executive office before the appointment."

Talk about an absolute about face! It certainly appears that in an effort to blunt Judicial Watch’s lawsuit, the Attorney General’s office quickly slapped together a legal argument to justify the Clinton appointment (and others).

Of course, this sort of politicization is nothing new for Attorney General Eric Holder. You may recall earlier this year, with legislation pending before Congress that would give a representative elected by voters in the District of Columbia a full vote in the House of Representatives, Holder asked the Office of Legal Counsel if the legislation would withstand the constitutional test. Holder, a D.C. resident who supports the measure, didn’t like the answer he got from the OLC. So he improperly asked another office — the Solicitor General’s office.

The Holder Justice Department seems less about justice than about politics.

(By the way, Judicial Watch held an educational panel on the issue of the Emoluments Clause in December 2008. Click here to check it out.)

Until next week…

Tom Fitton
President

Judicial Watch is a non-partisan, educational foundation organized under Section 501(c)(3) of the Internal Revenue code. Judicial Watch is dedicated to fighting government and judicial corruption and promoting a return to ethics and morality in our nation’s public life. To make a tax-deductible contribution in support of our efforts, click here.