The case of Roe v. Wade is instructive, because it mirrors the current state of the same-sex marriage movement in many ways. By 1973 when the Roe decision was handed down, the political stars appeared to be aligned in favor of abortion advocates. Abortion enjoyed widespread support in academia and among opinion elites as well as in public opinion polls, and was making headway in state law. The year before the Supreme Court decision was handed down saw nearly 600,000 legal abortions performed.

Despite these trends, taking abortion away from the legislatures galvanized widespread opposition. From hundreds of proposed constitutional amendments and state laws, to a national movement that has slowly but steadily shifted cultural opinion, abortion has become an issue that permeates the political process, particularly respecting judicial nominations, and has morphed into a key divide between the major parties.

Interestingly, in a speech a the University of Chicago this past weekend, Justice Ginsburg signaled that she shares Carrie’s perspective, at least with respect to Roe v. Wade. Per the AP story:

U.S. Supreme Court Justice Ruth Bader Ginsburg says she supports a woman’s right to choose to have an abortion, but feels her predecessors’ landmark Roe v. Wade ruling 40 years ago was too sweeping and gave abortion opponents a symbol to target.

Ginsburg, one of the most liberal members of the nation’s high court, spoke Saturday at the University of Chicago Law School. Ever since the decision, she said, momentum has been on abortion opponents’ side, fueling a state-by-state campaign that has placed more restrictions on abortion.

“That was my concern, that the court had given opponents of access to abortion a target to aim at relentlessly,” she told a crowd of students. “… My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change.” . . .

Ginsburg told the students she prefers what she termed “judicial restraint” and argued that such an approach can be more effective than expansive, aggressive decisions.

“The court can put its stamp of approval on the side of change and let that change develop in the political process,” she said.

The logical import of Justice Ginsburg’s comments, of course, is that the Supreme Court should resist the temptation to establish a right to gay marriage from coast to coast, instead letting this issue play out in the states. Justice Kennedy made remarks in March that led some to believe he is of the same view, based on his “concerns that the high court,” rather than the democratic process, ”is increasingly the venue for deciding politically charged issues such as gay marriage, health care and immigration.”

No one can know for sure how Judge Ginsburg will vote on these cases, but her comments are certainly a good sign for those of us who are asking if the Supreme Court will “decide to detonate another dirty bomb, poisoning the culture wars for decades to come,” as Carrie put it.

The post Justice Ginsberg on Roe vs. Wade appeared first on Judicial Crisis Network.

The study was released on the heels of a Washington Post story by Robert Kaiser detailing how Barney Frank convinced the influential Independent Community Bankers of America — the community bankers’ lobby — to stay on the sidelines during the fight over Dodd-Frank’s passage. The ICBA’s cooperation was secured in exchange for a reduction in FDIC assessments for smaller banks, and a Faustian bargain that did nothing to free those same banks from the CFPB’s oppressive regulatory regime.

Needless to say, the bargain hasn’t worked out so well for community banks. The CFPB tends to encourage standardized financial products — products with pre-determined, not customizable terms, with eligibility that comes from numbers crunching rather than an evaluation of a customer’s complete circumstances. In particular, the CFPB’s excessive regulatory regime ensures this, by prohibiting certain products with customizable terms altogether. Compounding this problem is the CFPB’s ability to prohibit “abusive practices” — how’s that for broad, subjective authority? — which unpredictably lets the CFPB ban certain financial products from being issued by big and small banks alike.

The standardization resulting from Dodd-Frank comes at the expense of the relationship banking model, the preferred model of many community banks. According to James H. McKillop, III, in Congressional testimony for the Independent Community Bankers of America:

Community banks . . . serve rural, small town, and suburban customers and markets that are not comprehensively served by large banks. Our business is based on longstanding relationships in the communities in which we live. We make loans often passed over by the large banks because a community banker’s personal knowledge of the community and the borrower provides firsthand insight into the true credit quality of a loan, in stark contrast to the statistical models used by large banks located in other states and regions. These localized credit decisions, made one-by-one by thousands of community bankers, support small businesses, economic growth, and job creation.

The CFPB’s vast regulatory web also forces community banks to pour money into compliance and away from lending. In Florida, 96 percent of community banks and credit unions “expect to spend considerably more time and money on compliance with new federal regulations over the next three years,” while 64 percent expect to hire new compliance staff and reduce their lending. The State National Bank of Big Spring, Texas, a plaintiff in the Dodd-Frank lawsuit, suspended its entire residential-mortgage division for fear of CFPB liability. Twelve hundred rural US counties would have “severely limited banking access” without community bankers, who also serve other key sectors of our economy:

Community banks provide 48.1 percent of small business loans issued by US banks, 15.7 percent of residential mortgage lending, 43.8 percent of farmland lending, 42.8 percent of farm lending, and 34.7 percent of commercial real estate loans, and they held 20 percent of all retail deposits at US banks as of 2010.

Democrats sold the CFPB as a response to the last financial crisis, and consumers did need a watchdog for protection from predatory lending. However, Marsh and Norman persuasively explain that community banks had little or nothing to do with the major causes of the financial crisis, including subprime lending, securitization, and derivatives. Overall, “total residential mortgage defaults at community banks [made] up only 2 percent of all defaults between 2003 and 2010,” while “[c]ommunity banks participated in only 0.07 percent of residential mortgage securitization activities between 2003 and 2010.”

Nonetheless, the cost of complying with the new regulatory regime will probably drive many of those same community banks out of business, or at least lower the quality and quantity of the services they can offer the customers in their communities. Meanwhile, as I wrote back in February, large banks will continue to rely upon lawyers, lobbyists, and in-house regulatory-compliance divisions to bear their regulatory burden. Which means that one net result of Dodd-Frank will probably be to increase the market share of the megabanks that caused the financial crisis in the first place, at the expense of the kind of banks that were actually behaving responsibly.

The post AEI on Dodd-Frank and Big Banks appeared first on Judicial Crisis Network.

History professor Gary May, in “Scalia’s Limited Understanding of the Voting Rights Act,” continued this intimidation campaign in the Washington Post, ironically, by distorting history and articulating a particularly limited understanding of the Voting Rights Act. May tries to discredit Scalia by arguing that even today, the Voting Rights Act “protections extend to all Americans regardless of skin color,” citing the fact that its role in eliminating literacy tests and poll taxes in the 1960s enfranchised poor whites.

I too would be outraged if Justice Scalia had actually downplayed the Voting Rights Act’s crucial role in protecting minority voting rights in the 1960s, or if he thought that eliminating literacy tests and poll taxes helped only minorities.

May’s ridiculous insinuation that Scalia would allow a return to long-extinct voter-suppression methods obscures Section 5’s actual constitutional defects. Justice Scalia’s comments relate to the Department of Justice’s controversial enforcement of Section 5, which requires covered states to pre-clear all voting-laws changes with the DOJ or the United States District Court in D.C. This enforcement rarely involves voting practices that exclude minorities from the polls – the last twelve years has seen three cases – and such measures would be illegal in any case.

Instead, Justice Scalia’s controversial comments referred to the Department of Justice’s refusal to invoke Section 5 to protect white voters. As a March inspector general report explains:

The Civil Rights Division’s current leadership has stated that it interprets the “retrogressive effect” test under Section 5 not to be applicable to White voters who are in the numerical minority in a particular jurisdiction. . . .

As noted in Chapter 2 above, upon receiving a proposed voting change submitted by a jurisdiction covered under Section 5, the Voting Section reviews the proposed change to determine whether the change is free of discriminatory purpose and effect. In evaluating whether a proposed voting change has a discriminatory effect, the Voting Section examines whether a proposed voting change would leave members of a “racial or language minority group” in a worse position than they had been before the change with respect to “their effective exercise of the electoral franchise.” This discriminatory effect is commonly called “retrogression” or a “retrogressive effect.”

In both public filings and statements to the OIG, the Division has stated that it interprets the non-retrogression principle of Section 5 to be “race­-conscious,” in that it does not cover White citizens when they are in the numerical minority in a covered jurisdiction. (citations omitted).

It’s worth noting, as Roger Clegg has, that the “retrogressive effect” standard itself has dubious constitutional merit, and repealing it would address selective-enforcement issues. Regardless, within the context described by the inspector general, Justice Scalia’s observations seem much more non-controversial—at least if you support equal protection under the law.

While May would have his readers believe that Justice Scalia’s position would hurt minorities, the DOJ’s Section 5 preclearance objections are the bigger culprit; the vast majority of these objections involve redistricting (39 out of 67 in 2009). The DOJ interprets Section 5 to require racially gerrymandered and segregated districts—districts with a majority minority population—instead of evenly distributing a minority population across the state. In practice, as Politicoreported this week, this can hurt black politicians, who have difficulties transitioning from representing a majority minority district to representing a state. Even members of the Congressional Black Caucus recognize this:

The most painful irony in black politics is that the very legislation that has ensured African-Americans have a voice in Congress, the Voting Rights Act, now can act as an impediment to blacks attempting to climb the electoral ladder.

While black-majority districts all but guarantee African-American representation, they also have the effect of stamping the members, fairly or not, as simply representing black interests. It’s a less than preferable training ground for a politician who wishes to run statewide among a more diverse electorate. . . .

For years, black Democrats and white Republicans have, particularly in the South, struck a Faustian bargain of sorts wherein they agree to racially packed districts that ensure safe seats for all parties. It has meant longevity for many black politicians in the state capitols and Washington but done little to vault African-Americans beyond their homogenous districts to statewide office. . . .

Many CBC members, including civil rights pillars like Clyburn and Lewis, have concluded that district-packing is detrimental and stated that they’d be OK with representing more diverse districts.

The Left’s intimidation campaign will only intensify during the run-up to the Court’s decision. We will continue to hear desperate assertions about how striking down Section 5 would return our country to its racist past. Thankfully, if May’s weak op-ed is any indicator, these attacks will gain little traction with informed Court observers, and I remain hopeful that Section 5’s current formulation has seen its last days.

The post The Left’s Intimidation Campaign over Shelby v. Holder appeared first on Judicial Crisis Network.

Read the whole brief.

The post Amicae Curiae Brief in McCullen v. Coakley appeared first on Judicial Crisis Network.

Click here to read the Brief

The Judicial Education Project filed the brief on behalf of amicae curiae Molly White, Esther Ripplinger, Marlynda Augelli, and Dr. Alveda King, all women who regret their decisions to have an abortion. Amicae were all misled by abortion clinic staff members about facts of fetal development and the severe physical and psychological harms of abortion they later experienced. They believe they would have not aborted their children if they had been given accurate information about abortion and been made aware of help available to support them in their pregnancies.

The Massachusetts statute discriminates against pro-life counselors by blocking their speech but giving free rein to representatives of abortion clinics. The First Amendment prohibits the government from picking and choosing which viewpoint it wants to be heard on public sidewalks.

The effect of the buffer zone is that pro-life speakers can only attempt to communicate by shouting or using loudspeakers rather than having sensitive, caring conversations with women considering abortion. It also restricts the right of women who want to receive information about abortion by outlawing even consensual conversations with pro-life counselors within the buffer zone.

The Massachusetts buffer zone silences one side of what may be the profoundest and most deeply emotional, political, and moral debate of our day, and violates the very essence of the First Amendment. JEP encourages the Supreme Court to take up this issue and clarify that the First Amendment must apply equally to all speakers, regardless of viewpoint.

JEP and the Judicial Crisis Network are expanding their reach via social networking—follow us on Twitter (@judicialnetwork) and become a Fan on Facebook http://www.facebook.com/judicialnetwork. JEP’s website: www.judicialnetwork.com. If you would like to schedule an interview with a spokesperson from JCN or JEP, please contact Ammon Simon at ammon@judicialnetwork.com.

The post Judicial Education Project Files Brief Supporting Petition for Certiorari in McCullen v. Coakley appeared first on Judicial Crisis Network.

Senate Republicans wrote in February that they would “continue to oppose the consideration of any nominee, regardless of party affiliation, to be the CFPB director until key structural changes are made to ensure accountability and transparency at the Consumer Financial Protection Bureau.” (Their criticism of the CFPB’s unaccountable structure is echoed in a lawsuit brought by eleven states and a small Texas bank and the Competitive Enterprise Institute challenging the constitutionality of Dodd-Frank.)

But the most significant rebuke so far came from the judicial branch. In January, the D.C. Circuit held that the president’s appointments to the National Labor Relations Board — which occurred alongside the Cordray appointment — were invalid, because they “eviscerate[d] the Constitution’s separation of powers” while “demolish[ing] checks and balances.” As former White House Counsel Boyden Gray explained, “the D.C. Circuit decision is binding on the CFPB unless reversed by the Supreme Court.”

Representative Jeb Hensarling, chairman of the House Financial Services Committee, agrees. Yesterday he released a statement announcing that his committee would not accept testimony from Cordary until he is validly appointed to the CFPB:

The House Financial Services Committee cannot legally accept testimony from Richard Cordray on the Consumer Financial Protection Bureau’s (CFPB) semi-annual report until he is validly appointed as the bureau’s director, said Rep. Jeb Hensarling (R-TX), the committee’s chairman. However, the committee will continue to conduct rigorous oversight of the CFPB. . . .

“The court’s unanimous ruling makes it clear that there is no legally-appointed director of the CFPB at this time,” said Chairman Hensarling. “By law, the committee can receive this testimony only from a director who is appointed in accordance with the Constitution
and the Dodd-Frank Act, which created the bureau.” . . .

“No other regulator has more influence over the daily financial lives of Americans,” he continued. “Dodd-Frank gives the CFPB director the power to decide what financial products and services will – and will not – be available to American consumers and how much they will have to pay for them. How is it fair to American consumers that one unelected, unaccountable bureaucrat in Washington has the power to decide what kind of mortgage, car loan or credit card they can or cannot have? No bureaucrat should have so much control over the financial destiny of Americans, particularly one who is completely insulated from the types of checks and balances that apply to other government agencies.”

Three cheers for Chairman Hensarling.

The post Jeb Hensarling on Richard Cordray appeared first on Judicial Crisis Network.

…Carrie Severino, the policy director at the conservative Judicial Crisis Network, says partisan fights over nominees to the D.C. Circuit are nothing new. Highly qualified Republican nominees got stranded in the Bush years, too.

“It is often a circuit that Supreme Court justices come from,” Severino says. “I think that’s why the president is focusing on it — not because of the real judicial need, but because he wants to get his people placed well.”

Severino says the workload is down at the D.C. Circuit. It’s so slow, she says, that the judges routinely cancel some argument days because there aren’t enough cases to fill those slots.

“There are more seats technically assigned to the D.C. Circuit than it really merits given its current caseload,” Severino adds. “If anything, some of those seats should be moved to other circuits that have a very high caseload. The D.C. Circuit is by far the lowest caseload of the circuits.”

The post Judicial Vacancies Languish On Key Federal Appeals Court appeared first on Judicial Crisis Network.

Listen to the podcast here

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