The Public’s Right to Know

Kate Michelman

The public may never know whether Obama's Supreme Court nominee is committed to privacy rights because of the conspiracy of silence that governs judicial nominations.

Six months ago, the American people decisively
repudiated the eight-year presidency of George W. Bush. So a new Supreme
Court justice – and the process by which he or she is confirmed – should
represent a clear break with the policies of those years.

The clearest sign that President Obama
is committed to the demand for change would be the nomination of a justice
who is committed to forthrightly and unapologetically defending America’s
fundamental liberties. This must include a commitment to the constitutional
rights to privacy and equality that found crucial meaning and historic
expression for women in Roe v. Wade.

By all indications, the president believes
in these rights himself and is highly likely to choose a jurist who
agrees. But we may never know whether the nominee is committed to these
rights because of the conspiracy of silence that governs judicial nominations.

The generally accepted "rules"
of judicial nominations go something like this: Presidents must promise
not to apply "litmus tests" that evaluate potential nominees
according to their positions on specific constitutional issues. Nominees
must not discuss specific cases, even long-standing precedents. And
senators are to consider nominees’ qualifications but never their views.

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This, too, must change. We should no
more confirm a nominee who refuses to discuss these fundamental rights
than one who claims to have no position on the rights to free speech,
freedom of religion, or jury trials.

There are noble ideals behind these confirmation
"rules." But they are a farce, and every participant in the
process knows it. Only the public is excluded from the game.

Here’s the reality. Presidents do consider
the concrete judicial views of potential nominees. Bush did. Obama will.
They would be irresponsible if they did not.

Any nominee for the court does have opinions
on the issues they claim they are compelled not to discuss. They would
not be qualified to be on the court if they did not have those views.
(Perhaps the best illustration of the lengths to which nominees will
go not to discuss critical issues – and the best evidence that this
process must change – was Clarence Thomas’ assertion that he had no
preconceived view of Roe.)

Senators certainly are aware of how justices
are likely to decide critical cases, and they certainly should take
these impressions into consideration before giving anyone a lifetime
appointment to our highest court. The Senate’s power to advise and consent
to these nominations obviously includes more than confirming a potential
justice’s resume.

All these facts are known, yet confirmation
debates are conducted in a theater of shadows. Participants do not give
voice to opinions it is patently obvious they must have. The limited
discussion that does occur is cloaked in inscrutable codes. And the
American people are denied forthright knowledge about an irreversible
appointment to an institution whose impact on their lives is immense.

Much has been made of the fact that although
Justice David H. Souter was opposed by many pro-choice groups, including
the one I led, he has been a staunch defender of the freedom to choose.
His integrity and independence will be greatly missed. But it was not
Souter’s substantive views that drew our opposition. It was the impossibility
of knowing them. The health, lives, and freedom of millions of American
women were and are too important to risk on a gamble.

Judges, like all thoughtful people, should
be open to the possibility of argument changing their minds. They should
certainly be neutral toward the parties or circumstances in any given
case. But before a new justice places his or her hand on a Bible and
swears to "preserve, protect, and defend the Constitution of the
United States," the American people are entitled to know what he
or she thinks that document means.

I stand with a clear and persistent majority
of Americans, as well as decades of legal precedent, in believing the
Constitution protects a zone of privacy into which the government is
forbidden to intrude. The right to privacy is inextricably linked with
women’s right to equality.

Obama is correct that jurists must also
understand the effect of their decisions on the lives of real people.
That impact weighs especially heavily on the women whom the court has
required to clear higher and increasingly intrusive hurdles to act on
their freedom to choose.

Thoughtful people may disagree about
whether a woman has a constitutional right to choose. That is precisely
why Americans on both sides of the divide should be able to participate
in an informed rather than artificial debate.

Any jurist qualified to sit on the Supreme
Court has contemplated these issues, as well as the wide range of others
he or she will be called upon to judge. That nominee will seek appointment
to a court from which he or she could turn those thoughts into constitutional
precedent the nation will be compelled to accept, without appeal, for
decades or longer.

The only question in this nomination
process will be whether the country will be allowed to know what the
nominee’s thoughts are. That is one basic right everyone should be able
to agree we have.  

This post first appeared in the Philadephia Inquirer.

Roundups Politics

Campaign Week in Review: ‘If You Don’t Vote … You Are Trifling’

Ally Boguhn

The chair of the Democratic National Convention (DNC) this week blasted those who sit out on Election Day, and mothers who lost children to gun violence were given a platform at the party's convention.

The chair of the Democratic National Convention (DNC) this week blasted those who sit out on Election Day, and mothers who lost children to gun violence were given a platform at the party’s convention.

DNC Chair Marcia Fudge: “If You Don’t Vote, You Are Ungrateful, You Are Lazy, and You Are Trifling”

The chair of the 2016 Democratic National Convention, Rep. Marcia Fudge (D-OH), criticized those who choose to sit out the election while speaking on the final day of the convention.

“If you want a decent education for your children, you had better vote,” Fudge told the party’s women’s caucus, which had convened to discuss what is at stake for women and reproductive health and rights this election season.

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“If you want to make sure that hungry children are fed, you had better vote,” said Fudge. “If you want to be sure that all the women who survive solely on Social Security will not go into poverty immediately, you had better vote.”

“And if you don’t vote, let me tell you something, there is no excuse for you. If you don’t vote, you don’t count,” she said.

“So as I leave, I’m just going to say this to you. You tell them I said it, and I’m not hesitant about it. If you don’t vote, you are ungrateful, you are lazy, and you are trifling.”

The congresswoman’s website notes that she represents a state where some legislators have “attempted to suppress voting by certain populations” by pushing voting restrictions that “hit vulnerable communities the hardest.”

Ohio has recently made headlines for enacting changes that would make it harder to vote, including rolling back the state’s early voting period and purging its voter rolls of those who have not voted for six years.

Fudge, however, has worked to expand access to voting by co-sponsoring the federal Voting Rights Amendment Act, which would restore the protections of the Voting Rights Act that were stripped by the Supreme Court in Shelby County v. Holder.

“Mothers of the Movement” Take the National Spotlight

In July 2015, the Waller County Sheriff’s Office released a statement that 28-year-old Sandra Bland had been found dead in her jail cell that morning due to “what appears to be self-asphyxiation.” Though police attempted to paint the death a suicide, Bland’s family has denied that she would have ended her own life given that she had just secured a new job and had not displayed any suicidal tendencies.

Bland’s death sparked national outcry from activists who demanded an investigation, and inspired the hashtag #SayHerName to draw attention to the deaths of Black women who died at the hands of police.

Tuesday night at the DNC, Bland’s mother, Geneva Reed-Veal, and a group of other Black women who have lost children to gun violence, in police custody, or at the hands of police—the “Mothers of the Movement”—told the country why the deaths of their children should matter to voters. They offered their support to Democratic nominee Hillary Clinton during a speech at the convention.

“One year ago yesterday, I lived the worst nightmare anyone could imagine. I watched as my daughter was lowered into the ground in a coffin,” said Geneva Reed-Veal.

“Six other women have died in custody that same month: Kindra Chapman, Alexis McGovern, Sarah Lee Circle Bear, Raynette Turner, Ralkina Jones, and Joyce Curnell. So many of our children are gone, but they are not forgotten,” she continued. 

“You don’t stop being a mom when your child dies,” said Lucia McBath, the mother of Jordan Davis. “His life ended the day that he was shot and killed for playing loud music. But my job as his mother didn’t.” 

McBath said that though she had lost her son, she continued to work to protect his legacy. “We’re going to keep telling our children’s stories and we’re urging you to say their names,” she said. “And we’re also going to keep using our voices and our votes to support leaders, like Hillary Clinton, who will help us protect one another so that this club of heartbroken mothers stops growing.” 

Sybrina Fulton, the mother of Trayvon Martin, called herself “an unwilling participant in this movement,” noting that she “would not have signed up for this, [nor would] any other mother that’s standing here with me today.” 

“But I am here today for my son, Trayvon Martin, who is in heaven, and … his brother, Jahvaris Fulton, who is still here on Earth,” Fulton said. “I did not want this spotlight. But I will do everything I can to focus some of this light on the pain of a path out of the darkness.”

What Else We’re Reading

Renee Bracey Sherman explained in Glamour why Democratic vice presidential nominee Tim Kaine’s position on abortion scares her.

NARAL’s Ilyse Hogue told Cosmopolitan why she shared her abortion story on stage at the DNC.

Lilly Workneh, the Huffington Post’s Black Voices senior editor, explained how the DNC was “powered by a bevy of remarkable black women.”

Rebecca Traister wrote about how Clinton’s historic nomination puts the Democratic nominee “one step closer to making the impossible possible.”

Rewire attended a Democrats for Life of America event while in Philadelphia for the convention and fact-checked the group’s executive director.

A woman may have finally clinched the nomination for a major political party, but Judith Warner in Politico Magazine took on whether the “glass ceiling” has really been cracked for women in politics.

With Clinton’s nomination, “Dozens of other women across the country, in interviews at their offices or alongside their children, also said they felt on the cusp of a major, collective step forward,” reported Jodi Kantor for the New York Times.

According to, Philadelphia’s Maternity Care Coalition staffed “eight curtained breast-feeding stalls on site [at the DNC], complete with comfy chairs, side tables, and electrical outlets.” Republicans reportedly offered similar accommodations at their convention the week before.

News Law and Policy

Court Blocks North Carolina’s ‘Discriminatory’ Voter ID Law

Imani Gandy

“[T]he new provisions target African Americans with almost surgical precision," Circuit Judge Diana Gribbon Motz wrote for the court, describing the North Carolina GOP's voter ID law.

A unanimous panel of the Fourth Circuit Court of Appeals struck down North Carolina’s elections law, holding that the Republican-held legislature had enacted the law with discriminatory intent to burden Black voters and that it therefore violated the Voting Rights Act of 1965.

The ruling marks the latest defeat of voter ID laws passed by GOP-majority legislatures across the country.

“We can only conclude that the North Carolina General Assembly enacted the challenged provisions of the law with discriminatory intent,” Circuit Judge Diana Gribbon Motz wrote for the court.

HB 589 required in-person voters to show certain types of photo ID beginning in 2016, and either curtailed or reduced registration and voting access tools that Black voters disproportionately used, including an early voting period. Black voters also disproportionately lack photo IDs.

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Republicans claimed that the law was intended to protect against voter fraud, which has proven exceedingly rare in Republican-led investigations. But voting rights advocates argue that the law was intended to disenfranchise Black and Latino voters.

The ruling marks a dramatic reversal of fortune for the U.S. Justice Department, the North Carolina chapter of the NAACP, and the League of Women Voters, which had asked the Fourth Circuit to review a lower court ruling against them.

U.S. District Court Judge Thomas Schroeder in April ruled that plaintiffs had failed to demonstrate that the law hindered Black voters’ ability to exercise political power.

The Fourth Circuit disagreed.

“In holding that the legislature did not enact the challenged provisions with discriminatory intent, the court seems to have missed the forest in carefully surveying the many trees,” Motz wrote. “This failure of perspective led the court to ignore critical facts bearing on legislative intent, including the inextricable link between race and politics in North Carolina.”

The Fourth Circuit noted that the Republican-dominated legislature passed the law in 2013, immediately following the U.S. Supreme Court’s ruling in Shelby v. Holder, which struck a key provision in Section 4 of the Voting Rights Act.

Section 4 is the coverage formula used to determine which states must get pre-clearance from the Department of Justice or the District Court for the District of Columbia before making any changes to election laws.

The day after the Supreme Court issued its ruling in Shelby, the Republican chairman of the Senate Rules Committee announced the North Carolina legislature’s intention to enact an “omnibus” election law, the appeals court noted. Before enacting the law, however, the Republican-dominated legislature requested data on the use, by race, of a number of voting practices.

After receipt of the race data, the North Carolina General Assembly enacted legislation that restricted voting and registration, all of which disproportionately burdened Black voters.

“In response to claims that intentional racial discrimination animated its actions, the State offered only meager justifications,” Motz continued. “[T]he new provisions target African Americans with almost surgical precision.”

The ruling comes a day after the Rev. Dr. William J. Barber II, president of the North Carolina chapter of the NAACP and one of the primary organizers of Moral Mondays, gave a rousing speech at the Democratic National Convention that brought convention goers to their feet.

During a protest on the first day of the trial, Barber told a crowd of about 3,500 people, “this is our Selma.”