Bush Officials Break Law Politicizing the American Notion of Justice

Scott Swenson

The Bush Department of Justice broke the law by using "abortion" and "homosexual" as search terms to determine the political leanings of potential employees, further proof of just how far out of the mainstream Bush has steered the nation. The constitution has become an after thought for Bush political hacks.

The New York Times is reporting tonight online that a new Justice Department internal report indicates the Bush Department of Justice broke several laws intended to prevent the politicization of the Judicial system. DOJ supervisors did this ".. by using politics to guide their hiring decisions for a wide range of
important department positions, slowing the hiring process at critical
times and damaging the department’s credibility and independence, an internal report concluded Monday."

It wasn’t enough to be Republican, two Justice Department officials also made sure the Republicans were the "right type" of Republicans, meaning socially conservative. They "would look for key phrases like ‘abortion,’ ‘homosexual,’ ‘guns,’ or ‘Florida re-count’ to get information on a candidate’s political
leanings," according to the NYT. The article said,

Ms. Goodling, who testified before Congress in May 2007 at the height of the scandal over the firings of nine United States attorneys, introduced politics into the hiring process in a systematic way that constituted illegal misconduct, the report found.

Last month, the inspector general, Glenn A. Fine,
released a separate report that found a similar pattern of politicized
hiring at the Justice Department in reviewing applications from young
lawyers for the honors and intern programs. The new report released
Monday goes much further, however, in documenting pervasive evidence of
political hiring for some of the department’s most senior career,
apolitical positions, including immigration judges and assistant United States attorneys.

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This is just the latest evidence of the Bush Administration steering the nation dramatically out of the mainstream and veering hard right, to a fringe ideology that has used social issues to rally their fundamentalist base and distract voters from larger issues. Most importantly, the Bush Administration is now clearly being seen as doing far more to damage Americans’ trust in the Justice Department and the Judiciary as a whole by making it just one more highly partisan, divisive and ideological extension of the Bush White House.

This may be one reason that many moderate Republicans and even conservatives close to Ronald Reagan are actively supporting Sen. Barack Obama for President even though they may disagree on some policy issues, but on larger constitutional issues see a real threat to our democracy posed by continuing on the wrong track Bush set for the nation.

Analysis Law and Policy

Justice Delayed, Justice Denied: Budget Cuts Threaten Safety and Rights of Survivors of Domestic Violence

Sheila Bapat

For domestic violence (DV) survivors who rely on the state courts for a wide range of services, budget cuts can add an extra layer of difficulty to their pursuit of a life free from abuse.

Austerity measures that target the courts can hinder enforcement of statutory rights and procedures—bringing to mind the famous saying, “justice delayed is justice denied.” Nevertheless, state courts throughout the country have experienced severe budget cuts since the 2008 financial crisis. “The justice system’s funding has been decreasing in constant dollars for at least two decades,” David Boies, renowned Bush v. Gore attorney and co-chairman of a commission formed by the American Bar Association to study court budget issues, told the New York Times last year. “We are now at the point where funding failures are not merely causing inconvenience, annoyances and burdens; the current funding failures are resulting in the failure to deliver basic justice.”  

For domestic violence (DV) survivors who rely on the courts for a wide range of services, this “failure to deliver basic justice” can add an extra layer of difficulty to their pursuit of a life free from abuse. The National Center for State Courts (NCSC) has analyzed the impact of cutting court budgets, finding that over the past three years, dozens of state courts have decreased their hours of operation, reduced services and cut staff salaries in order to save money. The specific impact these cuts are having on DV cases has not been studied in depth and requires closer attention, but some states are reporting greater difficulties in timely restraining order hearings, enforcement of abuser sentences and decreased counseling capacity from court staff—suggesting a reduction in the efficacy of state courts in aiding DV survivors.

Eric Berkowitz’s recent article in California Lawyer delves into the difficulties California courts face in meeting restraining order requests from DV survivors due to crushing state court budget cuts. Attorney Protima Pandey of Bay Area Legal Aid was profiled in Berkowitz’s piece. “Things like the availability of a courthouse to hear restraining order cases within the three-week period, or seeing a mediator—these things are statutorily mandated,” she told me on the phone after a long morning of preparing restraining order applications for the DV survivors who came to her clinic’s door. “They are basic things that we used to take for granted. But we are starting to see these basic services being impacted.”

According to the NCSC, California’s judicial branch budget was reduced by over $300 million for the fiscal year beginning July 1, 2011. In response, California courts have had to reduce their hours of operation, imposed staff layoffs, and delayed filling vacancies in the clerks’ offices and in judicial support positions. They anticipate reducing court clerk office hours and reducing the number of civil courtrooms open. Some Branch locations will be closed and some mediation services will be affected as well.

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California Supreme Court Chief Justice Tani Cantil-Sakauye was among the first to link these cuts to DV services in her recent State of the Judiciary address, when she pointed out that a rural California court with reduced hours of operation cannot meet all DV survivors’ requests for temporary restraining orders.

California’s budget crisis is more severe than that of many other states, but these challenges are not unique to California. Nevada has one of the worst DV records in the United States, having for two years in a row ranked first in the nation in the number of husbands killing their wives. According to Sue Meuschke, Executive Director of the Nevada Network Against Domestic Violence (NNADV), Nevada is seeing struggles in the state’s ability to meet the needs of DV survivors overall—in part due to tight state court resources.

“In Nevada we’ve experienced cutbacks everywhere, so state courts are just one part of the story,” Meuschke said. “The heavy case load that is impacting all the courts in the state makes the ability to monitor sentencing, particularly on misdemeanor cases which most DV cases are, very difficult.”

Nevada judges are charged with handling all follow up to make sure sentences are being enforced, Meuschke said.

We have a requirement in Nevada that offenders attend batterers’ intervention courses, along with jail time, fines and other punishment. But courts have to figure out how to monitor compliance with sentencing, and that can be difficult with an overloaded judiciary.

The NCSC found that Nevada courts have reduced staff support for judges, court operating hours and assistance from retired judges. Nevada courts have also experienced staff furloughs, salary reductions and salary freezes. “As a result, some responses to requests are delayed and courtrooms sometimes go dark because they cannot pay for senior judge coverage,” NSCS states in its summary about Nevada courts’ cuts in services.

Similarly, Oregon courts have reduced their hours of operation, imposed staff layoffs, delayed filling judicial vacancies, delayed filling vacancies in the clerks’ offices and in judicial support positions, among other measures. “Budget cuts have led to the suspension of facilitation appointments, or in-person assistance with court staff,” said Judge Maureen McKnight, chief family court judge in Multnomah County, Oregon. “We’ve left DV survivors and family law litigants in general without a resource that used to assist them in processing papers.”

Meuschke feels that resource challenges may make women reluctant to formally charge abusers or pursue restraining orders. “If there is no follow up, if the courts can’t monitor sentencing implementation, then DV survivors are not going to be as likely to utilize the courts in the future.”

News Contraception

Obama and the Bishops: Is the White House Caving on Birth Control Coverage?

Jodi Jacobson

The Bishops are lobbying hard for the Obama Administration to effectively excuse any and all "religious" entities from covering contraceptives without a co-pay. Last week Archbishop Dolan paid a private visit to President Obama and word on the street is that the White House may cave. This would be a grave mistake.

See all our coverage of the Birth Control Mandate 2011 here

This week, the United States Conference of Catholic Bishops (USCCB) threw itself a pity party in Baltimore. According to the bishops, their “religious liberty” is threatened unless they are able to ensure that every single person in the United States (well, actually the world) is made to follow Catholic canon law to the letter. According to the New York Times, the bishops are “recasting their opposition” to same-sex marriage, birth control, and other fundamental aspects of public health and human rights, because they view both government and culture as infringing on the church’s rights.

“We see in our culture a drive to neuter religion,” Archbishop Timothy M. Dolan of New York, president of the bishops conference, said in a news conference Monday at the bishops’ annual meeting in Baltimore. He added that “well-financed, well-oiled sectors” were trying “to push religion back into the sacristy.”

But the sacristy is where the vast majority of Catholics appear to believe the bishops should be focusing their efforts. The Times notes that in light of the ongoing evidence of massive cover-ups by the Vatican and the USCCB of the priest pedophilia scandal, the bishops’ “pronouncements on politics and morality have been met with indifference even by many of their own flock.”

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The bishops issue guidelines for Catholic voters every election season, a document known as “Forming Consciences for Faithful Citizenship,” which is distributed in many parishes. But the bishops were informed at their meeting on Monday that a recent study commissioned by Fordham University in New York found that only 16 percent of Catholics had heard of the document, and only 3 percent had read it.

Nonetheless, the Bishops believe their own right to practice their religion is threatened by your right to practice yours or to act as a moral agent in your own life. Their freedom of religion is threatened unless they can ensure that all LGBT persons are denied the right to marry or adopt children. It is threatened unless all women are denied the rights to decide whether and when to have children. It is threatened unless a Catholic hospital can let a woman die from complications of pregnancy rather than provide her with or even refer her on an emergency basis for a life-saving abortion. It is threatened unless a two-celled fertilized egg has more rights than the living, breathing woman in whose body it floats.

They are not “free” until you are not free.

And they certainly are not “free” unless women are denied access to affordable birth control. 

An integral part of the Affordable Care Act is the new benefit requiring health plans to cover preventive health care, including cancer screenings, immunizations, and birth control, with no co-pays.  Inclusion of these benefits came about through dogged efforts by female legislators, including an amendment authored by Senator Barbara Mikulski (D-MD), known as the Women’s Health Amendment. The Department of Health and Human Services, tasked with implementing health reform through regulations and oversight, took the advice of an expert panel of the Institute of Medicine (IOM) and recommended birth control be covered as a women’s preventive service because it is basic health care, and because it improves health outcomes for women and their families. Research shows that improved access to birth control is directly linked to declines in maternal and infant mortality among other health benefits. The IOM recommendations are supported by a vast amount of research and affirmed by the World Health Organization, the International College of Obstetricians and Gynecologists, the American College of Obstetricians and Gynecologists and the American Public Health Association among many other medical and public health bodies.

Regulations promulgated by HHS this summer mandate coverage in all employee-based health plans of contraceptive methods without a co-pay. The current provision includes what many already consider to be a sweeping refusal clause, exempting certain religious organizations for which religious values are their primary purpose; that primarily employ persons who share the religious tenets of the organization; that primarily serve persons who share the religious tenets of the organization; and that are nonprofit organizations. The regulations would still require institutions such as Catholic hospitals–for which one assumes the primary purpose is evidence-based health care–and universities (primary purpose, education?) to offer insurance that covers contraception without a co-pay. Nothing (repeat: NOTHING) in this new benefit requires an organization to dispense birth control, or an individual to take it. This is simply a matter of ensuring women have access to affordable preventive care by providing it with no co-pays. For an excellent and thorough review of this issue, read the testimony of Catholics for Choice President Jon O’Brien.

Still, this has so riled the USCCB that Archbishop Timothy Dolan took his lobbying straight to President Obama, with whom he met privately at the White House last week. In what I take to be a somewhat ominous comment, Dolan stated at a news conference that he “found the president of the United States to be very open to the sensitivities of the Catholic community.”

“I left there feeling a bit more at peace about this issue than when I entered.”

By “Catholic community,” Dolan clearly means the USCCB, the Vatican and the male hierarchy, certainly not the community constituted by the people–or the women–of the church.

Word on the street now–through off-the-record conversations with health groups–is that the White House is considering caving on the exemptions for contraceptive coverage.

This would be a grave mistake on Obama’s part.

For women, birth control is about as controversial as toothpaste and as widely used. According to the Centers for Disease Control, between 2006–2008, 99 percent of ALL women who had ever had sexual intercourse had used at least one method of birth control.  This includes, as O’Brien of Catholics for Choice pointed out, the 98 percent of sexually active Catholic women in the US who have used a form of contraception banned by the Vatican.

Moreover, while the most common reason U.S. women use oral contraceptive pills is to prevent pregnancy, 14 percent of pill users—1.5 million women—rely on them exclusively for non-contraceptive purposes, according to a study by the Guttmacher Institute called “Beyond Birth Control: The Overlooked Benefits of Oral Contraceptive Pills,” by Rachel K. Jones. More than half (58 percent) of all pill users rely on the method, at least in part, for purposes other than pregnancy prevention–such as reducing cramps or menstrual pain, to help prevent migraines, for treatment of endometriosis—meaning that only 42 percent use the pill exclusively for contraceptive purposes.

The contraceptive coverage provision under health reform is widely-supported by female voters, a critical constituency in the 2012 election. Public polling shows seventy-one percent of American voters, including 77 percent of Catholic women voters, support covering birth control at no cost.

So caving to the USCCB on something as fundamental to women’s health, lives and pocketbooks as contraception will not sit well with women, as a recent poll by NARAL Pro-Choice America notes.

“There is a group of women who voted for President Obama in 2008 but are not currently supporting him, and these data suggest many of them should be in his camp,” according to Al Quinlan, president of Greenberg Quinlan Rosner Research, a firm that conducted a recent survey for NARAL Pro-Choice America.

“Choice provides an opening for President Obama and other Democrats to create a sharp contrast with anti-choice Republicans,” he continued. The “women defectors” are defined as having voted for President Obama in 2008 but are currently not voting for him, weakly supporting him, or holding back from turning out in 2012.

“While the economy is the dominant issue, this survey shows that choice is a stronger, more persuasive issue for bringing key women voters back to President Obama’s camp,” said Nancy Keenan, president of NARAL Pro-Choice America.

Contraceptive coverage also is an equity issue. As many state contraceptive equity laws make clear and as the Equal Employment Opportunity Commission has ruled, failing to provide women with coverage for contraception in health plans that otherwise cover prescription drugs and devices is sex discrimination.

State supreme courts in California and New York have both found that contraceptive-equity laws with narrower employer exclusions such as the one put forth by HHS, do not substantially burden a religious belief or practice. In a majority opinion in one of the cases, the justices write:

“[W]hen a religious organization chooses to hire nonbelievers it must, at least to some degree, be prepared to accept neutral regulations imposed to protect those employees’ legitimate interests in doing what their own beliefs permit.”  [Catholic Charities of Albany v. Serio, 859 N.E.2d 459, 468 (N.Y. 2006)].

If the requirement for coverage of birth control is weakened, nearly one million people (and their dependents) who work at Catholic hospitals would lose benefits they already have. In addition, the approximately two million students and workers now attending universities that have a religious affiliation would also lose this important benefit.  It would mean a further weakening of women’s health and one more step toward theocracy. And it would raise health care costs and result in more unintended pregnancies.

What the Bishops really want is to strong-arm government into imposing restrictions on people’s choices and lives that they can’t even get Catholics to follow. They want to be able to receive federal funding, federal grants and contracts, get tax breaks and special treatment over other groups for building Catholic hospitals, maintain tax-exempt status while flouting lobbying rules, and play the victim card whenever they can’t avoid laws meant to advance health and human rights.  And they are aided and abetted in their efforts by other far-right my-way-or-the-highway-on-religion organizations like Focus on the Family and the Family Research Council, as well as a considerable number of GOP and Tea Party members of Congress. New efforts by conservatives to pass the Regulatory Accountability Act, for example, also threaten women’s health.  Nothing drives the patriarchy more batty than the notion of women being anything other than breeding cows.

So it takes some imagination–and I have not mustered anywhere nearly enough–to understand why the Obama Administration would EVEN. THINK. TWICE. about caving to the Bishops. Obama needs women to come out for him in the 2012 election, he campaigned on and promised adherence to science and evidence in the creation of policy, and he promised that under health reform people would not lose benefits they already had, a promise he has already broken once–big time–when it came to women’s health coverage on abortion care.

There is nothing more fundamental to women’s choices than choosing whether, when and with what partner to become pregnant. There is nothing more fundamental to ensuring the best prospects for all children than to work to ensure every child is a wanted child. And there is nothing less controversial for women than birth control.

If the White House does cave to fundamentalist organizations like the USCCB, (led, it should be underscored, by men), it would appear to have an even more fundamental problem with re-electing this President.

[Several calls to the White House on this issue were not returned by time of publication.]

_____________________________________

These groups urge you to take action:

Catholics for Choice

National Women’s Law Center

Physicians for Reproductive Choice and Health

Feminist Majority Foundation

Emily’s List

Planned Parenthood Federation of America

NARAL Pro-Choice America

Physicians for Reproductive Choice and Health

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Follow Jodi Jacobson on Twitter: @jljacobson