Ralph Nader's Blog, page 33

Wrecking America: How Trump’s Lawbreaking and Lies Betray All

By Mark Green and Ralph Nader

October 22, 2020

Political analysts of all stripes have concluded that President Trump has a base of supporters who are credulous, immovable, and unpersuadable. Allow us to briefly test that hypothesis, but to ignore the skins-shirts labels — Left-Right, Democrat-Republican — that often though not always determine how a person votes.

Instead, we’d like to ask sincere Trump voters whether they’d have a neighbor over for a family dinner who did any or all of the following?

* He has admitted on tape to routinely abusing women as several dozen have publicly accused him of sexual assaults. And he paid substantial hush money to buy the silence of at least two mistresses.

* He has cheated his workers, vendors, customers, and wives, and even cheated on his college entrance exam. Indeed, his only sister and niece have denounced his “dishonesty” and “phony” character. He says he used bankruptcy for his companies as a strategy — one that allows him to run away with responsibility.

* He has paid large civil fines after unlawful conduct, is prohibited from sitting on a charitable board in New York State, and is currently the subject of a grand jury investigation for financial fraud.

* He has been caught in 20,000+ falsehoods or lies in the past four years alone — telling an average of 22 a day — including several that led to thousands of deaths.

* He favors allowing toxic polluters to contaminate your neighborhood’s air and your family’s food because he believes “in the free market.”

* He brags that he is very religious, but doesn’t go to church or show any awareness of the Bible while violating most of the Ten Commandments.

* He frequently makes cruel, dehumanizing remarks about people of color, legal immigrants, and the disabled in your community and never retracts them.

* He rejects public health warnings designed to protect your neighborhood during an ongoing lethal epidemic, substituting his amateur hunches and reckless behavior for those of epidemiologists.

* He often ignores the by-laws of the neighborhood association, saying “so sue me” when challenged. The rules don’t apply to him.

* And he has never apologized for anything above, actually telling a group of 6th-graders, “apologies are for losers.”

Were all this true of a Democrat, say Barack Obama, you wouldn’t hesitate refusing any relationship with him. But if you don’t want such a person as your neighbor, why would you want him as your President where he’d have exponentially more power to harm you and your family?

One answer really can’t be that you heard about someone in another town — or years ago — who is/was supposedly even worse. On the other hand, a respectable response would be to reconsider your vote for President since, as you tell your children and grandchildren, “Honesty is the best policy.” Or as President Kennedy once put it, “sometimes party loyalty demands too much.”

Mark Green and Ralph Nader are consumer advocates and authors of many public policy books, including their just published, Wrecking America: How Trump’s Lawbreaking and Lies Betray All. Unlike other books on Trump, this is a book to be used, not just read, for the coming months.

The post Wrecking America: How Trump’s Lawbreaking and Lies Betray All first appeared on Ralph Nader.

Corporatist Judge Barrett – Two More Senate Abstentions Needed to Stop Trump

By Ralph Nader

October 16, 2020

In a 1995 book review published in the University of Chicago Law Review, Elena Kagan (now Justice Kagan) wrote about judicial nominees avoiding disclosing their views on legal issues. She said, “[T]he safest and surest route to the prize lay in alternating platitudinous statement and judicious silence. Who would have done anything different, in the absence of pressure from members of Congress?”

This week, nominee to the High Court, Judge Amy Coney Barrett followed the “say-nothing” playbook, through injudicious and repetitious filibustering, essentially claiming that it was improper for a judge “to opine” on matters outside the judicial process.

Really? Judge Barrett “opined” in lectures, interviews, and articles as a judge as have many sitting Supreme Court Justices. Her mentor, Justice Antonin Scalia regularly made controversial declarations at law school addresses and all kinds of other public appearances.

Judge Barrett’s hours before the Senate Judiciary Committee were consistently defiant. She refused to answer questions about the legality of intimidating voters, or whether all losing presidents should commit to a peaceful transition of power. Judge Barrett even refused to say whether she accepts the science on the climate crisis because she lacks the expertise on this issue and because it is a controversial topic.

Senator Pat Leahy said, “President Trump claims he has an absolute right to pardon himself. Would you agree, first, that nobody is above the law — not the president, not you, not me — is that correct?” Judge Barrett said she agreed no one is above the law but could not answer the question about a president’s pardon powers because “it had never been litigated.”

She would not even say that a President cannot unilaterally change the date of the election. Perhaps Judge Barrett should review Article II of the Constitution which empowers Congress to choose the timing of the general election and a law enacted by Congress that requires the election to be held on the first Tuesday after the first Monday in November.

The hearings were truly a travesty. Too few hearing days, exclusion of prominent civic and scholarly critics of her record and statements, and remarkably, the defeatist position by the Democrats. Their repetitive political campaign-related focus on Roe v. Wade and access to abortions, Obamacare, and the Second Amendment was directed to the voters back home. The Republicans did their things for the elections too, led by Chair Lindsey Graham. (This is an important reason why nomination hearings should not be conducted close to elections).

It gets worse. Chair Lindsey Graham pronounced victory for the judge in his opening statement and by their behavior the Democrats largely agreed, using the occasion to share their political views without exposing how a Judge’s corporatist ideology can let corporations prevail over workers, consumers, the environment, and the electoral process. Republican Justices on the Supreme Court, most notoriously, in the Citizens United case opened the floodgates to corporate cash further corrupting our elections.

As constitutional law expert, Bruce Fein noted, Judge Barrett maintained no distance between her and her nominator, President Trump, who stunningly has said, “I have an Article II, where I have the right to do whatever I want as president.” As a presidential tyrant, Trump knew how to choose a judicial nominee who is not likely to reject tyranny.

Except for Senator Sheldon Whitehouse (D-RI), the Democrats, as they have in previous Supreme Court nomination hearings, declined to question Judge Barrett about rampant corporate crime, and corporate personhood harming all Americans. Corporate power and control are scraping the rule of law with worsening brazenness, privileges, and immunities.

A 6 to 3 corporatist Court will install an era of corporate supremacy over real people that has no foundation in our Constitution. There is no mention, whatsoever, of the words “corporation” or “company” in the Constitution, the juridical foundation of our Republic. Treating corporations as artificial entities – as “persons” is based on a headnote in the 1886 Supreme Court case, Santa Clara County v. Southern Pacific Rail Road. The headnote that was not even part of the Court’s opinion. This judicial unfortunate and legally suspect twist has been relied on and expanded by generations of corporatist Supreme Court Justices.

Senator Whitehouse went to the root of the choice of Judge Barrett. It’s about power by the few over the many. The long-driven goal of the Koch Brothers and the Bradley Foundation.

The Democratic Party should have avoided all these losing nomination battles over Trump’s, Neil Gorsuch, Brett Kavanaugh, and now Amy Barrett. How? By handily winning half a dozen Senate seats in 2016 and 2018 that they botched big time. They even lost seats of sitting Senators Heidi Heitkamp (D-ND), Claire McCaskill (D-MO), and Bill Nelson (D-FL) the latter to then-Governor Rick Scott.  Rick Scott, prior to being governor, was the CEO of Columbia/HCA which under Scott engaged in one of the largest Medicare frauds in history. The federal government fined Columbia/HCA $1.7 billion for this outrageous behavior.

In their own ways, these Senators tried to be Republican-lite by avoiding front-burner issues such as higher minimum wages, law and order for corporate outlaws, full Medicare for All, and the creation of good community-based jobs to rebuild our crumbling infrastructure. These and other much-needed programs could be paid for by restoring corporate taxes to the level they were in the more prosperous nineteen sixties.

Because of the two-party duopoly, our country has been cornered with the “choice of the lesser of two evils” as both parties were dialing for the same corporate/commercial campaign dollars. In 2016, Bernie Sanders showed that big amounts of money can come from many small donors. The Democrats are outspending the Republicans in many races, but more than money is needed to win elections. What’s their excuse for letting the worst Republican in Party history win, again and again, control the Congress with one or both Houses, and entrench their clenched-teeth judges for decades?

Look in the mirror Democrats. Start self-examining why collectively you’ve let the American people down? It’s time for the rising movement of elected and grassroots progressive to take over.

 

The post Corporatist Judge Barrett - Two More Senate Abstentions Needed to Stop Trump first appeared on Ralph Nader.

Questions for Judge Amy V. Coney Barrett

On September 26, 2020, President Trump announced the nomination of Judge Amy V. Coney Barrett of the United States Court of Appeals for the Seventh Circuit to fill the vacancy on the Supreme Court held by Associate Justice Ruth Bader Ginsburg.

In 1994, I testified before the Senate Judiciary Committee on the nomination of Stephen G. Breyer by President Clinton to be an Associate Justice of the Supreme Court of the United States. In that testimony, I called attention to the importance of balance in the way our laws handle the challenges of corporate power in America.

Senators should ask Judge Barrett about her views on the impact of corporate power on our justice system and our democracy. See Important Questions on Corporate Power.

Senators should also ask Judge Barrett about the impact of her theory of originalism on racial segregation, the one-person, one-vote principle, and treating corporations (artificial entities with endless lives and limited liability) as persons. See Important Questions on originalism and the Constitution.

The post Questions for Judge Amy V. Coney Barrett first appeared on Ralph Nader.

Corporate Power Questions

On September 26, 2020, President Trump announced the nomination of Judge Amy V. Coney Barrett of the United States Court of Appeals for the Seventh Circuit to fill the vacancy on the Supreme Court held by Associate Justice Ruth Bader Ginsburg.

In 1994, I testified before the Senate Judiciary Committee on the nomination of Stephen G. Breyer by President Clinton to be an Associate Justice of the Supreme Court of the United States. In that testimony, I called attention to the importance of balance in the way our laws handle the challenges of corporate power in America.

I said:

For our political economy, no issue is more consequential than the distribution and impact of corporate power. Historically, our country periodically has tried to redress the imbalance between organized economic power and people rights and remedies. From the agrarian populist revolt by the farmers in the late 19th and early 20th century, to the rise of the federal and state regulatory agencies, to the surging trade unionism, to the opening of the courts for broader non-property values to have their day, to the strengthening of civil rights and civil liberties, consumer, women’s and environmental laws and institutions, corporate power was partially disciplined by the rule of law.

Today it is more important than ever for all Supreme Court Justices to have the inclination and wisdom to realize that our democracy is being eroded by many kinds of widely reported systemic corporate excesses. Giant multinational corporations have no allegiance to any country or community, and the devastation and other injustices they visit upon communities throughout the United States and around the globe have outpaced the countervailing restraints that should be the hallmark of government by, for and of the people. Unfortunately, the structure and scope of these hearings are not likely to devote a sufficient priority to the corporate issues of our times.

In 1816 Thomas Jefferson wrote: “I hope we shall… crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.” Imagine his reaction to the corporate abuses of Enron Corp, HealthSouth Corp., Tyco, WorldCom or Adelphia Communications Corp to name only a few, along with the drug, tobacco, banking, insurance, chemical and other toxic industries. The corporate crime and greed of today tower over the abuses of the “moneyed corporations” of Jefferson’s day. The economic power of giant corporations is augmented by a flood of Political Action Committee (PAC) money and other donations that shape the quality and quantity of debate in our country and consequently drive our society to imperatives that are increasingly more corporate than civic.

You will hear about Judge Barrett from several perspectives, but it is safe to assume that questions and testimony about Judge Barrett’ views on corporate power and the rule of law will be inadequate given the broad and profound impact giant corporations have on our democracy. An important procedural and substantive corollary is the important role our civil justice system plays in expanding the frontiers of justice and in giving individuals the ability to hold “wrongdoers” accountable in a court of law. “If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice,” said the famous jurist, Learned Hand.

Unfortunately, powerholders, corporations and other institutions which are supposed to be held accountable by the civil justice system, are striving to weaken, limit and override the province of juries and judges. Some companies, led by insurers, have used expensive and focused media to promote the view that civil juries are too costly and too unpredictable. This narrow and short-sighted perspective is contrary to the long-standing tenets of our democracy and in particular the Seventh Amendment to our Constitution.

The civil jury system of the United States embraces a fundamental precept of tested justice: ordinary citizens applying their minds and values can and do reach decisions on the facts in cases that often involve powerful wrongdoers. This form of direct citizen participation in the administration of justice was deemed indispensable by this nation’s founders and was considered non-negotiable by the leaders of the American revolution against King George III. But the civil jury is more than a process toward bringing a grievance to resolution. The civil jury is a pillar of our democracy necessary for the protection of individuals against tyranny, repression and mayhem of many kinds and for the deterrence of such injustices in the future. Our civil jury institution is a voice for and by the citizenry in setting standards for a just society. Jury findings incorporated in appellate court decisions contribute to one of the few authoritative reservoirs of advancing standards of responsibility between the powerful and the powerless — whether between companies and consumers, workers, shareholders and community or between officialdom and taxpayers or citizens in general. Knowing the evolution of the common law and the civil jury provides compelling and ennobling evidence of this progression of justice. Chief Justice William Rehnquist wrote, ” The founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign, or, it might be added, to that of the judiciary.” See: Parklane Hosiery Co. V. Shore, 439 U.S. 322 (1979).

As the hearing unfolds, I suggest that the members of the Judiciary Committee devote some time to areas beyond those that are traditionally the focus of witnesses and questioning by Committee members and ask fundamental questions about the views of Judge , a former corporate lawyer at Hogan & Hartson, regarding corporate power and the civil justice system.

In the spirit of expanding the criteria by which the Committee and the public can measure Judge Barrett’s judicial and civic philosophy, I offer the following questions for you to pose to the nominee. Some of the questions are narrowly focused and some are broad-gauged. But, in their totality they constitute the broad kind of “litmus test” that should be applied in selecting and confirming all judges. In short, does the nominee, having met the threshold requirements of competency, believe that the rule of law should be used to broaden and deepen, procedurally and substantively, our democracy — even if it means the rights of the giant corporation or powerful interests must be circumscribed to protect the rights of the individual citizen and of our communities — rural or urban, large or small?

In pursing its own line of questions, the Committee should not let its exploration of the nominee’s views be artificially restricted. Judicial nominees have given two reasons for refusing to answer questions, but these reasons are contradictory. First, they say, if they publicly express their views, it will compromise them if the issue comes before the Court. Second, they say, judges do not decide legal issues in a vacuum: they only decide a concrete dispute in a specific adversarial context. Accordingly, some nominees claim it’s silly or inappropriate, for example, to say whether they believe the Constitution protects the right to abortion, because Justices don’t decide cases by asking such abstract questions. They face a particular statute, challenged by a particular party directly affected in a particular way, and the resolution of that dispute will turn on all those particulars.

This second response has a degree of merit — and undercuts the first reason for refusing to answer most questions. Precisely because neither nominees nor the public can know in what context issues will reach the Court (if at all), it is not problematic for nominees to discuss their views. They should not say how they would decide an actual pending case, but, short of that, it is fine for them to discuss issues because that in no way commits them to taking sides in any actual dispute — such disputes are invariably context-specific. For example, a nominee may be asked about the doctrine that treats a corporation as a “person” entitled to various constitutional rights. His or her thoughts on this issue will not tell us what he or she will do if such an issue is raised in a case before the Court. The latter may depend on the nature of the corporation (non-profit? media? multi-national?), the nature of the claimed right, and much more.

Moreover, even if the nominee testifies that he or she disapproves the doctrine, as a Justice the nominee may hold that the question is settled law. Or if a nominee says that he or she agrees with the doctrine, a new circumstance — or a party making a new argument — may lead the nominee to hold otherwise. Nothing a nominee says guarantees that he or she will decide any case any particular way. Nothing that is said has to be fixed in stone. Judges do give opinionated public speeches, do they not?

It may be wondered whether, in light of the above, any purpose is served by asking the nominee her views. The answer is yes. It’s no secret that nothing a nominee says binds the nominee once he or she receives an office with life tenure. Nominees can’t and shouldn’t be bound. But especially with a nominee who has a limited public record, the hearings provide some basis for gauging the nature and quality of her ideas, about her philosophy of due process for example. At any rate they have that potential — if Senators do their job and do not accept a nominee’s self-serving refusal to answer questions.

At the outset, it would behoove the Committee to establish the parameters the nominee will use in fashioning responses to your questions by asking:

What criteria are you using to determine if you will directly answer or not answer questions posed to you by members of the Senate Judiciary Committee? If the Court has recently ruled on a matter, will you provide the Committee with your views on the Court’s ruling?

If a matter is long settled, will you provide the Committee with your views on the Court’s ruling?

Once this baseline has been established, the following questions should shed light on nominee’s approach to some major issues of our day.

1) The U.S. Supreme Court in Citizens United v. Federal Election Commission shredded the fabric of our already weakened democracy by allowing corporations to more completely dominate our corrupted electoral process. It is outrageous that corporations already attempt to influence or bribe our political candidates through their political action committees (PACs), which solicit employees and shareholders for donations. With this decision, corporations can now also draw on their corporate treasuries and pour vast amounts of corporate money, through independent expenditures, into the electoral swamp already flooded with corporate campaign PAC contribution dollars. Do you believe this case was decided correctly?

2) Do you see a problem when corporations are treated as equal participants, with every right to use their First Amendment rights to dominate public policy debates such as those that occur in state and local referenda?

3) Do you believe the Court should uphold state and Congressional limits on corporate political expression in order to equalize contributions to public debates?

4) Do you believe that a strict reading of the Constitution provides for the treatment of corporations as “persons” under the law for purposes of equal protection, freedom of speech or due process of law? And, if so, what in the Constitution’s text provides a basis for this belief?

5) Do you believe that a declaration of war by Congress is Constitutionally required for the United States to engage in war?

6) Does a Congressional delegation of the war-making discretion to the President in the form of a war resolution meet the test of Article One, Section Eight of the Constitution?

7) What level of equal protection scrutiny was applied in Bush v. Gore, 531 U. S. 98 (2000)?

8) What is the precedential effect of Bush v. Gore? In other words, what kinds of equal protection claims does Bush v. Gore control or apply to? After Bush v. Gore, may a political entity (city, county, state) holding an election use more than one type of voting methodology (paper ballots, standard machines, punch cards, etc.) knowing that the error rates (whether through undercounts or otherwise) are different from one methodology to another?

9) Do you believe limits on television station ownership abridge the free speech rights of corporate broadcasters?

10) What is your view of the First Amendment rights of the listeners being paramount to those of the broadcasters as articulated by the Court in Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969)?

11) In 1986, in Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1 (1986) the Supreme Court (5 to 3) struck down a state regulation as violating a utility company’s “right of conscience” under the First Amendment. What makes the case particularly unsettling is its disconnectedness to opinions past and future. As Justice Rehnquist observed in his lengthy dissenting opinion in the case, “the two constitutional liberties most closely analogous to the right to refrain from speaking — the Fifth Amendment right to remain silent and the constitutional right of privacy — have been denied to corporations based on their corporate status.” Do you think it makes sense to attribute a right of conscience to a commercial corporation?

12) Some scholars and judges believe that “Originalism” is the only principled method of constitutional interpretation. Do you agree?

13) Would any trade agreement, such as GATT, NAFTA, or CAFTA ever require Senate ratification as a treaty?

14) Does the President have complete discretion to determine whether an international trade or other agreement must be submitted to the Senate for two-thirds treaty approval? If not, what are the criteria that determine when an international agreement must be submitted to the Senate for two-thirds treaty approval?

15) Are there limits on Congress’ power to strip federal courts of jurisdiction over a particular issue? If so, what are such limits?

16) Do you believe victims of defective products that meet federal standards should be limited from recovering damages from the manufacturers of the defective products?

17) Do you believe Congress should federalize and pre-empt state products liability common law in any or all sectors?

18) Plaintiffs’ trial lawyers have been blamed by their corporate critics for all sorts of problems with the economy and legal profession. Do you believe that those representing injured persons in product liability and medical malpractice cases are harming America?

19) So-called tort-reform is aimed at restricting the amount of non-economic damages, such as pain and suffering, a party can receive. Are you concerned that this interferes with the traditional role of juries and judges to find facts and mete out appropriate justice?

20) Do you believe the use of the government contractor defense should be limited in nonmilitary procurement? If so, how?

21) Some people say the Ninth Amendment can play no substantive role in protecting rights, that it’s merely a statement of principle or reminder of limited government. Do you agree?

22) A number of legal scholars argue that the 11th Amendment has been interpreted by the Court to shield states from liability for wrongdoing in a way that blatantly contravenes the original intention of the Amendment. Are you familiar with that scholarship and do you find it persuasive?

23) In what circumstances, if any, is it appropriate for a contractual arbitration clause to contract away substantive contract law, tort, or statutory rights? For instance, can an arbitration clause require arbitration of a worker’s Title VII rights and at the same time limit the worker’s compensatory damages to $200,000? Can that same clause require the loser to pay the winner’s attorney’s fees? Can that clause require that the parties to arbitration bear their own attorney’s fees?

24) Describe the presumption against preemption of state law. Does it apply in some or all instances where federal law is said to preempt state law?

25) Is the presumption against preemption of state law (by federal law) similar to the plain statement rule that demands that Congress speak with unmistakable clarity if it wishes to override the states’ sovereign immunity? If the presumption against preemption is not similar to the plain statement rule, explain how it is different?

26) How is the presumption against preemption applied in cases where federal regulatory law (regulating, for instance, drugs, boats, pesticides, motor vehicles, and the like) is said to preempt state tort law that provides monetary remedies to compensate for injuries caused by a product that the federal government regulates?

27) Do you believe Congress should pre-empt the state-law-based medical malpractice system?

28) What are your views on the “American rule” as opposed to the English rule under which the losing party in litigation generally pays the winner’s costs, including attorney’s fees?

29) What has been your reaction or views on Congressional funding levels for federally funded legal services programs over the last two decades? Should government be responsible for funding representation for poor people in civil litigation where important property or liberty interests are at stake? Or should that be mainly or entirely a private function?

30) Many observers complain that law firms representing large corporations routinely abuse the discovery process in order to delay and harass their opponents. Have you observed that phenomenon? If so, what should be done about it?

31) Should federal judges attend seminars which are funded by private corporations (or by foundations that are funded by such corporations) that have matters of interest to the corporations before the courts?

32) Do you believe a government attorney, in a subordinate position, should be forced (under penalty of discharge) to work on a case or argue a position that he or she believes is illegal, unconstitutional or unethical? Or should government lawyers have a “right of conscience” like other professionals? What kinds of participation in civic life may federal judges continue to be involved in once they assume their judicial positions?

33) Is there a need to amend our open government laws to make the President subject to them in whole or in part? Would such amendments be constitutional?

34) Do you believe arguments before the Supreme Court should be televised in the way C-SPAN televises Congressional deliberations?

35) In your view, is the Freedom of Information Act functioning properly at this time? If not, what are the major problems facing the Act?

36) From both a legal (constitutional) and practical perspective, what is your view of the trend in the federal judiciary toward releasing more of its opinions in “unpublished” form, i.e., where the relevant court accords no precedential effect to the decision for other cases?

37) Lloyd Cutler, speaking as a prominent corporate attorney, once said: “There is one point I want to make clear: we believe in the arguments that we make.” Do you believe the arguments you have made on behalf of your corporate clients?

38) How many hours or what percent of their work time do you think partners in major firms should devote to pro bono work each year?

39) How many hours on average did you bill per year when you were in private practice and at what rates?

40) How many hours on average did you bill per year as an associate?

41) What was the nature of your pro bono work and approximately how much time per year did you devote to pro bono work?

42) Corporate attorneys and legal scholars have written books and articles decrying unethical or fraudulent billing practices in large corporate law firms. An article in the Summer 2001 Georgetown Journal of Legal Ethics titled Gunderson Effect and Billable Mania: Trends in Overbilling and the Effect of New Wages states that unethical billing practices are “a pervasive problem in law firms across the country” — do you agree?

43) Did you ever observe unethical billing practices when you were in private practice?

44) If so, what was the nature of and who were the protagonists of such practices?

I hope these questions, whether asked orally or submitted to the nominee in writing for response, spark a robust, constructive debate between the Committee members and the nominee. Such exchanges should provide the Senate and the larger public with insights into how Judge Barrett will, if confirmed as a Justice, perform her duties.

The post Corporate Power Questions first appeared on Ralph Nader.

Letter From Ralph Nader, Lou Fisher and Bruce Fein to Members of the Senate Judiciary Committee

Explanatory Note:

Originalism is a judicial doctrine, most often associated with Justice Antonin Scalia, teaching that the interpretation of the Constitution should be governed exclusively by the specific meaning the drafters and ratifiers collectively assigned to the particular constitutional provision in dispute. One erroneous assumption, among others, is that there was a uniformity of understanding of each constitutional provision among the many participants in the drafting and ratifying process by the several states.

 

We, the undersigned, urge you to address Supreme Court nominee Amy Cony Barrett with the attached questions. They expose the alarming ramifications of Judge Barrett’s theory of originalism. If honestly applied, Judge Barrett’s theory of originalism would reverse volumes of constitutional jurisprudence. Among other things, her theory would upset such time-honored constitutional decisions as Brown v. Board of Education and Bolling v. Sharpe, the incorporation of most of the Bill of Rights as applicable to the States, and the one-person, one-vote principal in legislative districting. It would also require Judge Barrett to disown the Supreme Court’s decisions recognizing corporations, artificial entities with endless lives and limited liability, as persons within the meaning of the Fourteenth Amendment.

Moreover, originalism says nothing about stare decisis and a principled standard to determine whether a Supreme Court decision should be overruled, notwithstanding Article V empowering the people to reverse an allegedly wayward precedent by constitutional amendment. That has been done on four occasions. Thus, Judge Barrett should be questioned meticulously about her approach to stare decisis.

We believe the attached questions will help reveal whether Judge Barrett refrains from insisting on her originalism when the result would be unpalatable to her personal values or policies.

Sincerely,

Ralph Nader

Lou Fisher

Bruce Fein

Amy Coney Barrett Constitutional Questions

1. What does “originalism” as understood by you teach as regards stare decisis and the circumstances justifying overruling a Supreme Court precedent, like Plessy v. Ferguson or Korematsu v. United States? Would you consult public opinion? How? What in the Constitution’s text gives a clue as to the weight a sitting Justice should give to stare decisis? Does a Justice just make up whatever weight should be given to precedent? Isn’t that tantamount to legislating from the bench? Supreme Court constitutional decisions contrary to popular will can be overruled with constitutional amendments, which has been done on four occasions: the Eleventh, Fourteenth, Sixteenth, and Twenty-Sixth amendments. Why should the Supreme Court overrule precedents when the amendment process can do the job?

2. How does your originalist theory address the issue of whether corporations are “persons” protected by the Fourteenth Amendment? The Supreme Court’s decision in the affirmative in Santa Clara v. Southern Pacific is sheer ipse dixit. What in the text of the Fourteenth Amendment suggests that persons include corporations which are artificial, non-human entities with perpetual existence and limited liability?

3. How does your originalist theory deal with Miranda v. Arizona? Do you think Miranda warnings are required by your originalist theory? Do you think Miranda is a good candidate for overruling? Dickerson v. United States (2000) affirmed Miranda as rooted in the Constitution. Was Dickerson wrongly decided according to your originalist theory?

4. How does your originalist theory deal with the Eleventh Amendment and state immunity from suit in federal courts? The text of the Amendment is clear: it applies only to suits against a State brought by a citizen of another State or foreign state. Yet the Supreme Court applied the Amendment to suits brought against a State by citizens of that same State in Hans v. Louisiana and its progeny? Should that line of cases be candidates for overruling? Why or why not? When the text is clear, as with the Eleventh Amendment, is there any canon of construction that legislative history should be consulted?

5. How does your originalist theory deal with the war power entrusted to Congress by the Declare War Clause? Every participant in the drafting, debating, and ratifying the Constitution understood the Clause to mean that only Congress could take the nation from a state of peace to war, leaving the President power to respond to actual aggression that had already broken the peace. Under your originalist theory, was the Korean War constitutional? The Vietnam War? The offensive use of the Armed Forces in Libya to overthrow Muammar Gaddafi and turn Libya into a wilderness? Under your originalist theory, can Congress delegate the war power to the President with a statute that provides: “The President may employ the United States military offensively, including conducting war, without limitation?”

6. How does your originalist theory address the preemptive power of the Commerce Clause, standing alone, to nullify state or municipal laws that discriminate against or impose an undue burden on interstate commerce? The prevailing standard as articulated by the Supreme Court in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) is as follows: “Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefit. [Citation omitted]. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.”

7. How does your originalist theory address the absolute immunity of the President from damages suits for flagrant unconstitutional acts proclaimed in Nixon v. Fitzgerald, 457 U.S. 731 (1982)? Where in the text of the Constitution is there a clue that the President is immune from suit for constitutional violations, including assassinations or torture?

8. How does your originalist theory address private damage actions against federal officials for violations of constitutional rights, including assassinations, torture, or kidnappings? Does your originalist theory endorse the Supreme Court’s reasoning in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) against judicial enforcement of constitutional rights and make them parchment barriers against constitutional wrongdoing unless Congress provides a green light? Does your originalist theory support overruling the Supreme Court’s decision in Bivens v. Six Unknown Agents, 403 U.S. 388 (1971)? Does it support overruling Davis v. Passman protecting congressional employees from gender discrimination?

9. How does your originalist theory address executive privilege or state secrets to conceal information from Congress? What in the Constitution’s text supports executive privilege or state secrets? What in the Constitution’s implies an executive privilege or state secrets? The Speech or Debate Clause expressly grants legal immunity for certain speech or actions of legislators, but there is no corresponding express immunity for certain executive speech or actions? If originalism leads to a dead end, to what do you resort to decide a constitutional case?

10. How does your originalist theory address Brown v. Board of Education? The same Congress that passed the Fourteenth Amendment also mandated segregated schooling in the District of Columbia. And how does your originalist theory address Bolling v. Sharp, which pivoted on the due process clause of the Fifth Amendment. The Congress that passed the Fifth Amendment also endorsed the constitutionality of slavery.

11. How does your originalist theory address the issue of whether corporations are “persons” protected by the Fourteenth Amendment? The Supreme Court’s decision in the affirmative in Santa Clara v. Southern Pacific is sheer ipse dixit. What in the text of the Fourteenth Amendment suggests that persons include corporations which are artificial, non-human entities with perpetual existence and limited liability?

12. How does your originalist theory address the Supreme Court’s incorporating virtually all of the Bill of Rights as applicable to the States under the due process clause of the Fourteenth Amendment? The Fifth Amendment also contains a due process clause yet was not thought sufficient to cover the multiple other individual rights protected by the Bill of Rights. The free exercise clause of the First Amendment is nowhere referenced in the 14th Amendment. According to your originalism theory, is the free exercise of religion protected by the 14th Amendment, or should Cantwell c. Connecticut be overruled? What about freedom of speech, freedom of the press, freedom of association, the establishment clause, the right to counsel, double jeopardy, the right to jury trial, or the right to confront accusers? Does your originalism theory dictate abandonment of the incorporation doctrine under the due process clause of the 14th Amendment?

13. How does your originalist theory address the exclusionary rule of the Fourth Amendment expounded in Mapp v. Ohio? What in the Amendment’s text suggests that the exclusion of evidence in a criminal case is a mandatory sanction for a violation?

14. How does your originalism theory address the Supreme Court’s one-person, one-vote decisions in both state and federal legislative elections declared in Baker v. Carr, Reynolds v. Sims, and Wesberry v. Sanders? Should the one-person, one-vote doctrine be overruled?

15. How does your originalism theory address the delegation of legislative power to the executive? Article I, section 1 of the Constitution vests “all” legislative power in the Congress. But since Schechter Poultry and Panama Refining, for more than 80 years the Supreme Court has sustained congressional surrenders of vast open-ended legislative power to the executive branch to promulgate legislative rules on a scale that dwarfs statutes enacted by Congress. Moreover, under the Chevron deference doctrine of your mentor Justice Antonin Scalia, deference is given to the executive in interpreting the magnitude of Congress’ delegation of its legislative power. Doesn’t your originalist theory require a prohibition of wholesale congressional delegations of legislative power to the executive, and a revival of more precedents like Schechter Poultry and Panama Refining?

16. How does your originalism theory address the state secrets doctrine as expounded in Reynolds v. United States, where the Court accepted without in camera review an untrue affidavit from the executive branch than discovery relating to the cause of the crash of a military aircraft would disclose state secrets relating to surveillance? Doesn’t such blind judicial deference to the executive deny due process to plaintiffs in such cases?

17. How does your originalism theory address the constitutionality of political patronage as expounded in Elrod v. Burns and its progeny? According to your originalist theory, does the Constitution permit making party affiliation a requirement for employment in a non-policymaking government position or for receiving a government contract?

18. Roe v. Wade was decided 47 years ago. Since the decision, there has been no serious effort in Congress or on application by two-thirds of the States under Article V to overrule Roe by constitutional amendment as has been done regarding four other Supreme Court precedents. Under your originalism theory, why should the Supreme Court overrule a decision which the political arms of government are unwilling to overrule?

19. In Michael H. v. Gerald D., Justice Scalia’s originalism theory dictated a rejection of unenumerated rights with an exception for those “deeply rooted in the nation’s history” or “implicit in the concept of ordered liberty” at the granular level of application. According to your theory or originalism as applied to unenumerated rights, do unmarried or married partners have a constitutional right of access to contraceptives as ordained in Griswold v. Connecticut and Eisenstadt v. Baird? Does your originalism theory support an unenumerated right to attend private schools or receive instruction in foreign languages as the Court upheld in Pierce v. Society of Sisters and Meyer v. Nebraska? Under your theory of originalism, what methodology do you use to determine whether an unenumerated right is deeply rooted in this Nation’s history or tradition or implicit in the concept of ordered liberty? What in the Constitution’s text gives you a clue as to the answer?

20. How does your originalist theory address the powers of Congress under the Commerce Clause and Wickard v. Filburn? Was the latter wrongly decided? Does the Commerce Clause empower Congress to regulate activity that has collectively impacts the price of a good or service nationwide under your theory of originalism? Explain.

21. The Slaughterhouse cases gave a very crabbed construction of the privileges and immunities clause of the Fourteenth amendment? Under your theory of originalism, was the case wrongly decided? If so, what should have been the interpretation of the clause?

22. The Supreme Court declared in United States v. Curtiss-Wright Export Corporation that the President was the government’s “sole organ” in fashioning in executing foreign policy. Is that statement consistent with your originalist theory of constitutional interpretation? In Federalist 69, Alexander Hamilton wrote: “The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.”

23. Under your theory of originalism, were the same-sex marriage decision of Obergefell v. Hodges and the homosexual sodomy decision of Lawrence v. Texas correctly decided? What factors would you consider in deciding whether to vote to overrule the twin precedents?

24. Under your theory of originalism, is the administrative state that combines legislative, executive, and judicial power in single executive branch agencies unconstitutional? James Madison wrote in Federalist 47: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

25. Under your theory of originalism, is the independence of the Board of Governors of the Federal Reserve Board from the President unconstitutional because it departs from a unitary executive branch? Explain.

26. Under your theory of originalism, does the Fourth Amendment extend beyond protecting persons, houses, papers and effects to protecting reasonable expectations of privacy, including phone conversations and internet communications in the digital age never anticipated by the Amendment’s framers? How does your originalist theory for interpreting the Fourth Amendment address expectations of privacy in the digital age generally?

Louis Fisher is a Constitutional Law Scholar who worked for four decades at the Library of Congress as Senior Specialist in Separation of Powers (Congressional Research Service, from 1970 to 2006) and Specialist in Constitutional Law (the Law Library, from 2006 to 2010).

Bruce Fein has served as special assistant to the assistant attorney general in the office of legal counsel at the Department of Justice, associate deputy attorney general, general counsel to the Federal Communications Commission, research director for the Joint Congressional Committee on Covert Arms Sales to Iran, and senior policy advisor to the Ron Paul 2012 presidential campaign. Mr. Fein is author of American Empire Before The Fall, and Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy. He has testified before Congress on constitutional issues on countless occasions.

Back to top

The post Letter From Ralph Nader, Lou Fisher and Bruce Fein to Members of the Senate Judiciary Committee first appeared on Ralph Nader.

Suggestions for Successful Elections in 2020 at All Levels

The following are Eleven Suggestions, with useful links, for getting out more progressive voters to the polls in the approaching elections at the local, state and national levels. For a variety of reasons and causes, tens of millions of eligible Americans do not vote. These ideas can spark interest and participation by these citizens, and regular voters, in shaping a more productive and fair democratic society. Spread the word.

The following items were assembled before Covid-19 which means that some of them need to be altered accordingly, while the majority are not significantly affected.

Corporatist right-wingers prefer to campaign on “values” and not on their voting records. They cannot answer the question — “Which side are you on?” — in ways that appeal to voting families. Right-wingers will describe deceptively a law they voted for, such as the tax cut for the rich and the corporations (2017), but for the most part, they block or oppose votes to provide necessities for the people. Right-wingers prefer campaigning about “values” and abstractions. Consequently, in 2014 when Senator Mitch McConnell was up for re-election, I drafted a list of Kentucky Values and compared them to the contrary positions and votes of McConnell. The latter were clearly contrary to broad Kentucky values. A member of Congress hand-delivered to McConnell’s opponent this list of values in the context of McConnell’s votes. McConnell’s opponent declined to use this approach in the campaign. The Louisville Courier-Journal — the state’s largest newspaper, thought enough of the message to print it as an op-ed by me.

Of course, every state — Texas, Georgia, Wisconsin, Minnesota, etc. can be seen as having similar broad and appealing values. Comparing an incumbent’s vague embrace of values to the incumbent’s specific votes and positions is powerful and can motivate voters to look beyond campaign slogans and platitudes. It makes the “values rhetoric” clash with the reality of the incumbents’ actions. No more using abstractions as camouflage for the misdeeds on the ground. It makes the politician’s record matter.

Getting out the vote by telephone banks, postcards or door knocking is important but has several limitations. It doesn’t work very well with non-voters or people who do not see that the election matters to them where they live, work, and raise their families. (The “pox on all your houses” people). This memo — pre-Covid-19 — emphasizes the importance of early person-to-person conversations and developing relationships in neighborhoods, organized, and staffed by full-time organizers and local “influencers.” The memo suggests transportation options and then post-election celebrations to solidify voter participation and future civic and electoral action. The price-tag is half of what Mr. Bloomberg spent to end up winning American Samoa in the Democratic presidential primary. Adjustment here needs to be made for much greater mail voting.

The theme of corruption must be prominent and continually restated. No matter the polls or the country, when people are asked what they dislike the most about government and politicians, corruption is almost always near or at the top of their concerns. The Trump administration is the most deeply, overt, covert, and varied corrupt regime in U.S. history — think of the daily impeachable offenses such as spending unauthorized money, also a federal crime under the Anti-Deficiency Act, and defying scores of Congressional subpoenas that reflect corrupt Trumpian practices. Corruption is a word that sticks in people’s minds. Use it, repeat it, exemplify it to strike home.

Make the voting record of the incumbent — and the positions taken — specific and personal to voters. Here is one approach (call it a “Voter Self-Help Guide — Where do you stand?) On one side, you ask the voters “yes or no” questions on several important issues. On the other side, you can then compare candidate answers with the positions of their opponents and yourself. Of course, there can be different designs, including ones suited to social media. But the goal should be — to show that the incumbent disagrees with the voter and the challenger agrees with the voter.

The many bad votes of the adversary need to be publicized for a deep imprint. It is remarkable how little attention is given to this strategy. The aggregate votes show that the “whole is larger than the sum of its parts.” On television or in social media, this aggregate list can be broken down into a serial rendition — showing a string of votes over days. This will be both dramatic and compelling and will have a deep imprint, unlike a conventional 30-second ad.

Millions of Americans who work the midnight shift, are keeping the country going while we are sleeping. These include healthcare workers, nursing-home staff, police, firefighters, convenience stores, fast-food restaurants, gas stations, and other all-night workers at retail stores (e.g. drugstores and grocery stores), all night factories, security guards, etc. The candidates can issue a one-page press release, describing the categories of workers and thanking them. These workers are not part of campaign events and they know they are marginalized by candidates. Candidates can show these workers how valued they truly are. Candidates that campaign XXX nights, starting at the midnight shift before the largest hospital in your district or state, will see the benefit of visiting workers from midnight until 3:00 am or so, especially with likely news coverage and social media outreach. Candidates as “midnight campaigners” will be much appreciated, and word-of-mouth will spread the news of the “midnight” candidate’s concern for the forgotten workers.

Winning elections without mandates will leave a cynical trail among voters. Empty ads violate the principle that POLICY precedes MESSAGE. Candidates need to persuade people that they want to win with mandates from the people, that they know where they came from and won’t forget the specifics on which the candidates campaigned. Campaigning on mandates will produce supportive feedback for campaigns from tens of thousands of active people. Mandates mean post-election accountability and pre-election contrast with one’s opponents.

Trump has shown the power of his nicknames. Why? Because, astonishingly, the mass media keeps repeating them over and over again (including during the 2016 campaign) without offering the target of his pejorative nicknames a chance to reply. Ordinarily, candidates do not use nicknames and principled candidates don’t want to descend to his level. But as a top Trump campaign official gleefully said on NPR — they work, why not use them? Nicknames in return blunt Trump’s nicknames from working. Giving a bully his own medicine, including circulating millions of buttons, signs, and posters will either help get equal time or stop the initiator from engaging in this branding tactic.

In Florida, ex-felons, owing a few hundred dollars in unpaid prison fees, court costs, etc. still may be obstructed from voting despite Florida overwhelmingly passing a constitutional amendment allowing them to vote. With the Governor opposed, the courts still in process, it is worth expanding on LeBron James $100,000 down payment to the Florida Rights Restoration Project to start paying off the debts, with more money to come from his new “More Than a Vote” organization. But will it not be enough? A Michael Bloomberg level contribution is needed for the hundreds of thousands of ex-felons who know the specific amount owed. Others await notice of the amounts due. It is a mess but very worth addressing, given how close and consequential Florida elections have turned out to be.

Candidates running for Congress or for the governorship of states need better coaching for candidate debates. There are times while watching these debates when it is difficult to distinguish between the positions of Democrats and Republicans. Too many Democrats have lost when they should have easily won given the voting record and/or public stands by the Republicans. The Democrats too often come across as tentative, cautious, defensive, and seemingly unwilling to let the audience really know the difference between them and their opponents (answering the perennial question “Whose Side Are You On?”). Why? Because they often don’t really know who they are — and because they are coached by dim or conflicted consultants, Democratic candidates also don’t seem to know how to reply and gain the momentum by ending a response and answer that opens new attack themes. The questions asked by debate moderators and reporters are part of the problem. More attention needs to be paid to training candidates to propose consequential questions during debates. There are reasons why the Democrats have lost four of the last five House elections to the worst, most vicious, anti-worker/consumer, corporate cronyism Party in GOP history.

Debate content, timing, and techniques need to be the subject of national training sessions. The ads that will follow can present powerful themes and be worth their price because they will be more memorable for word-of-mouth communications.

In 2018 the Democrats could have won four more Senate seats had Democratic candidates not tried to sound like Republicans−and talked about what families and young voters really need and want from the most powerful (under the Constitution) branch of government (e.g. — making livelihood protections that elaborate the disgraceful status quo).

Candidates need to develop powerful uniform themes, grouped as a highly visible “commitment to voters,” that attract more left/right support from people who have household and neighborhood conditions on their mind, writ small and writ large (living wage to healthcare costs and access to job-intensive infrastructure projects in their community — to cite three of many). Focus on what the perceived necessities and injustices are by families, regardless of the political labels they place on themselves. (See this excerpt from my book — UNSTOPPABLE: The Emerging Left-Right Alliance to Dismantle the Corporate State).

There are many issues bringing left/right voters together just waiting for elaboration and authentic candidate stands. Put simply, a left/right approach nationalizes the election and recognizes that conservatives, liberals, progressives all get ripped off by companies, all are exposed to toxic pollution, crumbling public services, the many controls of big companies, health and safety hazards and most have a surplus of anxiety, dread and fear about the future. The Democratic Party can take command of agendas and reforms that Republicans will not support and cannot be blurred, or credibly denied and are on most people’s minds.

One such long overdue non-blurrable issue is raising the federal minimum wage from its long-frozen level of $7.25 per hour to $15 an hour. The party needs to make its existing support more vocal, visible, and repeated in many human interest contexts. The party should accelerate its implementation and not wait for five years as did the House passed bill. Over 25 million workers will benefit in intangible ways. The message must be authentic, vivid, front and center and not just seen as the political rhetoric from past years.

An authentic and well-publicized contract with America needs to be drafted and widely disseminated by all Democratic candidates after Labor Day. Veteran politicians have told me — people do not know what the Democratic Party stands for — its agenda is too piecemeal. Look at their weak slogans. Even with the Republicans blocking the next massive relief bill, already passed by the Democrats last May, the contrasting message of what the Democrats stand for is not getting through to the majority of the voters. If the message, in its granularity, was getting through the polls would be plummeting for the GOP, not merely sliding.

The post Suggestions for Successful Elections in 2020 at All Levels first appeared on Ralph Nader.

“Loser” – Pence Bullies Fabrications Through Debate Time Rules

By Ralph Nader

October 9, 2020

Vice President Pence “debated” Senator Kamala Harris in a way that reminded voters of how he and his boss, Donald Trump, have lawlessly misgoverned since 2017. Pence arrogantly and continually broke through the time rules that he and the Republicans agreed to obey.

Again and again, Pence blew through the two minute, one minute, and 30-second limits so he could extend his fabrications and phony promises. Again and again, moderator Susan Page of USA Today would say “Thank you” five or six times to get Pence to stop each infraction. Pence also interrupted Harris in mid-sentence, against the rules.

This boorishness should have been anticipated by the Commission on Presidential Debates (CPD). The CPD has put on presidential debates since its creation by the Republican and Democratic Parties in 1984 to replace the League of Women Voters when they couldn’t control the League’s independence (See No Debate by George Farah and his website, opendebates.org ).

That said, what about Susan Page, known as an aggressive veteran journalist (especially against Third-Party candidates)? Why did Page allow Pence to run over her repeatedly and violate the time rules? Why after several overtimes by Pence did she not admonish him to stay within the agreed-to time limits?

It was only after an exasperated Harris went briefly overtime twice near the end of the session that Ms. Page told both speakers to follow the rules. Pathetic. She lost control of the debate to abuser Pence and owes the public an explanation.

On the substance of the presentations, Senator Harris used three arrows in her quiver when she had a dozen, well known to her, that went unused.

Most astonishing was Harris not nailing Trump/Pence and Mitch McConnell for blocking the House-passed stimulus and relief bill (last May under Speaker Nancy Pelosi) that is desperately needed by tens of millions of Covid-19 impacted Americans and by hard-pressed millions of small businesses. This callous trio is willing to keep furloughed or laid-off workers from receiving $600 a week until January and stall the delivery of aid to hard-pressed local agencies, schools, healthcare facilities, the Postal Service, and other stimuli to a sagging economy.

As a lawyer and former California Attorney General, Harris avoided calling out Trump/Pence for breaking and bending the law and committing many ongoing impeachable violations of our Constitution. While Pence kept touting “de-regulation,” Harris didn’t decode that deception by illustrating the many health, safety, and economic protections destroyed by the Trump/Pence regime that favors Wall Street over Main Street. Where was the talk about the “kitchen table” necessities on the minds of Americans daily?

Harris stressed health care, but not full Medicare for All, and let Pence get away with lies about how clean our air and water are and the overall health of the environment. Under Trump – law enforcement has been brazenly abandoned.  Protecting our food, drugs, air, water, soil, and controlling greenhouse gases have been left to the whims of greedy corporate outlaws putting profits over safety.

Pence would totally ignore Page’s questions and go off on rehearsed and deceptive shout-outs. He used this escape tactic to refuse to answer Page’s crucial question about agreeing to a peaceful transition of power should the Republicans lose the presidency. Page chose not to follow up or even say “You didn’t answer the question, but we have to move on.” Once Harris used this brushoff technique when asked where she and Biden stood on expanding the number of Supreme Court Justices.

After the “debate” ended, it occurred to me that Harris completely ignored the progressive agendas of Senators Bernie Sanders and Elizabeth Warren and millions of their supporters. There was no mention of the corporate crime wave and accelerating control over the people by immune global corporations. There was no mention of strengthening union organizing laws (such as the simple “card check” promised and forgotten by Obama/Biden in 2008). There was not even a mention of a federal $15 minimum wage, lifting the stagnant wages of millions of women and men, passed last year in the House and blocked by the Senate Republicans satisfied with the frozen $7.25 per hour

If Bernie Sanders ever thought his massive mobilization of voters for the primaries in 2016 and 2020 was going to move the dominant corporate Democrats, he must be having second thoughts after both Biden and Harris, in two debates before huge audiences, turned their backs on the fast-growing progressive wing of their Party. There was not even a nod to Bernie and his many supporters.

Biden/Harris may not be able to be so dismissive of progressive Democrats and Independents should they take control of Congress next year. But don’t bet on it.

The post “Loser” – Pence Bullies Fabrications Through Debate Time Rules first appeared on Ralph Nader.

Ginsburg Institute for Justice Needed for Our Depleted Democracy

By Ralph Nader

October 2, 2020

Jean Monnet – a founder of the European Union once said: “Nothing is possible without men, but nothing is lasting without institutions.”

I’m reminded of his observation each time our country loses a “just” Supreme Court Justice. So, what will follow after the few days of prominent encomiums at memorial events and editorial praise of Justice Ruth Bader Ginsburg?

Historians will record her decisions, writings, and advocacy. Many people will celebrate her groundbreaking contributions to equal rights for women and other civil rights. Justice Ginsburg’s fervent admirers, however, should look not only at past accomplishments but to creative ways to build on a great and enduring legacy.

Several years ago, I tried to interest some of Justice John Paul Stevens’ former law clerks (many of whom became successful lawyers) to enlist their colleagues in establishing a “John Paul Stevens Institute for Justice.” In 2014, retired Justice Stevens, at age 94, had just published another book – Six Amendments: How And Why We Should Change The Constitution. This book was then the latest product in his vigorous retirement period of writings and addresses.

I wrote to Justice Stevens urging him to give a nod to his 100 or more clerks, many of whom were wealthy attorneys. He was too modest. A few former clerks showed interest, but not to the point of initiating action.

A similar attempt to persuade supporters of Justice Sandra Day O’Connor fell flat. At the time, she was pressing hard for full legal aid for poor people seeking justice and real civic education in the nation’s elementary and secondary schools.

After she retired from the Court, she criticized the 2010 Supreme Court decision – Citizens United v. Federal Election Commission – that opened the floodgates for corporate campaign cash. Her former clerks did not envision an “Institute for Justice” in honor of their adored mentor.  Justice O’Connor was also honest enough to publicly acknowledge regret about her vote in the 5-4 decision to install George W. Bush as president.

Was I just engaging in fanciful dreaming about adding these new institutional oak trees for justice to replenish our depleting democratic forest? Not at all. A vibrant Brennan Center for Justice has been on the ramparts for justice since 1995. Located at New York University Law School, it was founded by the family and former law clerks of Supreme Court Justice William J. Brennan, who was nominated to the Court by President Eisenhower.

With an annual budget of $26 million, the tough Brennan Center for Justice has produced a remarkable output on ways to advance improvements in criminal justice, electoral procedures, and broader public participation in the circles of power.

The Center has been described as “part think-tank, part public interest law firm [that litigates] and part communications hub,” working to advance “equal justice for all.”

It started when one former law clerk stepped up, followed by more who joined the effort to create this institutional tribute to Justice Brennan. Together, they raised the seed money and this new institution was launched to implement the law as if people mattered first and foremost.

The same kind of institution can be created quickly, should Justice Ginsburg’s over 100 law clerks, from her many years as a federal circuit court judge and as an Associate Justice of the Supreme Court, heed Jean Monnet’s words.

Given the immense goodwill and unprecedented popular fame of Justice Ginsburg, especially among women, as a pioneering lawyer and jurist, raising the basic funding should be easy. Moreover, foundations would line up to back this initiative and its projects.

For this to happen, the energy from the huge outpouring of accolades since her passing on September 18, 2020, need to be promptly transformed into an operating vision and not left as a nostalgic memory.

Some of the former law clerks who could form the core group are Amanda L. Tyler, professor of law at the University of California-Berkeley; Kelsi Corkran, who heads the Supreme Court practice at a large law firm; Ruthanne Deutsch, an appellate litigator; Elizabeth Prelogar, a Supreme Court and appellate litigator; Trevor W. Morrison, Dean of New York University School of Law; Neil S. Siegel, professor of law and political science at Duke University School of Law; Paul Schiff Berman, professor of law at George Washington University Law School; and many others who revered and were so inspired by the feisty, resilient, kind Ruth Bader Ginsburg.

I’m sure that Brennan Center’s president, Michael Waldman, would be pleased to share his experience in furthering such a noble and lasting mission.

Is there any better way to compliment Justice Ginsburg’s legacy and carry forward her foundational work for the American people?  It is really entirely in the hands of Justice Ginsburg’s admirers to accomplish this worthy goal.

Perhaps the creation of the Ginsburg Institute for Justice will jumpstart the now influential former clerks of Justice Stevens and Justice O’Connor to follow the example of Justice Brennan’s clerks. It is never too late for more institutional infusions toward a just society.

The post Ginsburg Institute for Justice Needed for Our Depleted Democracy first appeared on Ralph Nader.

Harold Evans

Harold Evans was one of the greatest newspaper editors of the 20th century. He pushed British journalism into investigative areas that were never before covered. He took on corporate crime and brushed aside censorship and self-censorship in the business and profession of journalism. As an author-historian, he had inexhaustible energy and unique angles of insight observation and priorities. He was very accessible to those he mentored and always willing to help. No matter his age and experience, his curiosity was impervious to being jaded. His horizons will be sorely missed. Our sympathies are with his family.

-Ralph Nader

The post Harold Evans first appeared on Ralph Nader.

To Democratic Voters – Up Your Demands; To Trump Voters – See How He Didn’t Deliver for You

By Ralph Nader

September 25, 2020

Here is some practical advice for casting informed votes to improve the livelihoods of all Americans where they live, work, and raise their children and also to lessen their anxiety, dread, and fear.

Democratic voters should demand that the Democratic Party candidates pledge to vote to (1) raise the long frozen, federal minimum wage of $7.25 to a living wage; (2) support more efficient full Medicare for All (with free choice of doctors and hospitals and no cruel, irritating networks); (3) repeal Trump’s two trillion dollar tax cut, with additional loopholes for the rich, and huge corporate subsidies and giveaways; and to use the money to upgrade and rebuild the job-rich public works sector as well as the infrastructure in every community in the country – both in the red and blue states; (4) crack down, with law and order, on the corporate crimewave that bleeds consumers out of trillions of dollars a year; (5) repeal anti-labor laws to facilitate empowering tens of millions of workers who want to join unions to defend their economic and safety interests; and (6) accelerate the transition to a solar-based economy with better air, water, greater neighborhood self-reliance, and to reduce the devastating climate disruption from the burning of fossil fuels.

Democratic candidates will benefit by embracing such a covenant. Moreover, candidates who repeat the planks of this covenant incessantly and authentically in political communications and grassroots mobilizations will be seen as caring for the people in their daily lives and struggles in all the states of our union.

This covenant can be contrasted with the offerings of the Republican Party, which failed to adopt a new platform for 2020. Instead, the Republican National Committee (RNC) said, “The RNC enthusiastically supports President Trump and continues to reject the policy positions of the Obama-Biden Administration, as well as those espoused by the Democratic National Committee today…” The RNC largely supports turning the government over to Big Business and further entrenching Wall Street rule over Main Street.

The contrast also illustrates the Republican Party’s callous indifference to the immediate desperate needs of millions of Americans. Senate tyrant Mitch McConnell is blocking the House-passed six-month renewal of the much needed $600 a week Covid-19-driven assistance for families nationwide. This and other crucial aid to states and localities is necessary to make schools safer and to provide protective equipment and other assistance to patients in hospitals and clinics, and to nursing home residents.

Monopolist Mitch is shafting his own state of Kentucky while hypocritically seeking the people’s votes for his re-election to extend his long and evil tenure in the Senate, and his more recent total toadying for Trump.

Trump and his “gangster regime” (conservative columnist George Will’s words) have failed to deliver on Trump’s phony 2016 campaign promises on health care, clean air and water, and creating millions of good-paying jobs. And, with Mitch McConnell’s help, Trump has jeopardized public health, soiled the environment, and abandoned workers to global corporations.

Now a few words for voters inclined to support dictator Donald Trump. You surely admit Trump did not deliver for you. How long can you wait? Now, Trump is gathering large crowds of supporters who, shoulder-to-shoulder and mostly without masks, listen to him scoff at the Covid-19 pandemic as he and they flaunt mask requirements in violation of state and local laws. When asked about the safety of these events, Trump ignores public safety and says that he is on the stage and safely far away from the crowd. At least dangerous Donald is not passing out little cups of bleach.

Donald Trump is the hyper-super spreader of the deadly Covid-19 virus and he is endangering the tens of thousands of people attending his rallies. Ask your physician about this ‘clear and present danger’ to public health and life.

Now, about the reasons you voted for devious Donald in 2016 other than the “anybody but Hillary” rationale. Many Trump voters want anti-choice judges. (You may not recall, for years, Trump was pro-choice.) But the hundreds of federal judges nominated by Trump are also clenched-teeth corporatists, who rule for corporations when the conflicts involve the lives of workers, consumers, and the environment. They are dyed-in-the-wool boosters of expanding big business power and control over you. These extremist judges also support big foreign and domestic corporations getting lavish tax breaks and taxpayer subsidies.

Some people like Trump’s talk about “de-regulation,” getting big government off your back. In reality, Trump is taking the federal cops off the backs of corporate crooks and de-funding the corporate crime police. This year Trump brazenly said he is stopping or limiting enforcement of the laws designed to protect consumers from companies that sell you and your children hazardous products, pollute your air and water, defraud you in the marketplace, and fail to recall your defective cars/trucks.

Trump even announced in March that the U.S. Food and Drug Administration (FDA) would suspend or postpone inspection of imports from abroad, including the bulk of the medicines that Trump still allows to be imported from China. One would think some serious hoodwinking or just plain lying is going on here.

Well, you might say – at least Trump cut taxes. Come-on, the vast benefits of his tax cuts went to the rich and big corporations. All those bonanzas could have been used to fix your roads, bridges, mass transits, schools, clinics, and drinking water systems. Egomaniac Trump doesn’t care about you; for him, it’s about using the government to enrich himself and his family members and to bail out his failing hotels and golf courses.

Maybe you still like Trump because he says he is against immigrants “invading” our country. Trump, however, had no problem illegally hiring undocumented workers for his golf course and his residences (and earlier for his construction projects in New York), until he was exposed. Trump has no concern for the exploited foreign workers in the meatpacking, poultry processing, and agribusiness companies owned by his campaign-contributing buddies.

Before you cast your ballot, let’s toast your informed self-respect as clear-minded voters who can see an immoral, law-breaking, greedy Trump regime full of plutocrats who couldn’t care less about America and the people they’ve exploited.

The post To Democratic Voters – Up Your Demands; To Trump Voters – See How He Didn’t Deliver for You first appeared on Ralph Nader.