A+ R A-

George Curry

The Politics of Federal Judges

E-mail Print PDF

(NNPA) The two conflicting appeals court rulings last week on the legality of a key provision of the Affordable Care Act – one supporting it and the other rejecting the health law – underscore the nexus between politics and the judiciary. All of the judges voting to uphold the ACA were appointed by Democrats. All of the judges voting to strike down the law were appointed by Republicans.

We’ve seen this scenario played out at the U.S. Supreme Court, with most controversial rulings decided on a 5-4 vote, with conservatives clinging to a one-vote margin. But the most important appointments might be those of federal appeals court judges, the last stop before a case reaches the Supreme Court.

Approximately 10,000 cases are appealed to the Supreme Court each year. Of those, only 75-80 are accepted. Therefore, many important decisions are made in cases that never reach the  Supreme Court.

Separate appeals court rulings on a key provision of the Affordable Care Act on July 22 vividly illustrate the why looking are lower court judges is extremely important.

At issue was whether the federal government could provide subsidies to low- and middle-income citizens in the form of tax credits to purchase insurance coverage on the insurance marketplace operated by federal authorities.

A divided three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia said no, with two Republican judges voting against the subsidies and the lone Democrat voting to uphold the provision.  In the majority were Thomas Griffith, appointed by George W. Bush, and Raymond Randolph, an appointee of H.W. Bush.  Dissenting was Harry T. Edwards, a Jimmy Carter nominee.

Hours later, a three-judge panel of 4th U.S. Circuit Court of Appeals in Richmond, all appointed by Democrats, ruled that the Internal Revenue Service correctly interpreted the law when it issued regulations allowing health insurance tax credits for consumers in all 50 states. Judges Andre Davis and Stephanie Thacker were appointed by Obama and Roger Gregory was originally appointed Bill Clinton.

Over the years, the 4th Circuit was considered a bastion of conservatism.  With six appointments since he has been in office – and a seventh pending – President Obama has been able to flip the court’s majority from Republican to Democratic appointees.

This discussion of appeals court is not intended to minimize the importance of Supreme Court justices. In all likelihood, the next president will make one or two appointments that will determine whether the High Court continues to drift to the right or return to the center.

That’s why it’s so important that African Americans again turn out in record numbers for the presidential election in 2016. This November should be a trial run for mobilizing the Black vote without Barack Obama’s name appearing on the ballot

Federal judges have lifetime appointments. And nyone who asserts that a judge’s politics doesn’t impact his or her rulings is living in a make-believe world.

In a study titled “Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation,” published in the Virginia Law Review, the authors  (Cass R. Sunstein, David Schkade, and Lisa Michelle Ellman)  studied 4,400 legal opinions involving politically sensitive issues and discovered that appeals judges –  as they did recently in the case of the Affordable Care Act –

usually decide cases in keeping with the political philosophy of the president who appointed them to the bench.

“From 1980 through 2002, Republican appointees cast 267 total votes, with 127, or 48 percent, in favor of upholding an affirmative-action policy. By contrast, Democratic appointees cast 198 votes, with 147, or 74 percent, in favor of upholding an affirmative-action policy. Here we find striking evidence of ideological voting,” the study found.

An analysis of George W. Bush’s judicial appointments by Robert Carp, Kenneth Manning L. and Ronald Slidham discovered, “Reagan found a good many conservatives on the bench when he took office. Thus he has had a major role in shaping the entire federal judiciary in his own conservative image for some time to come.”

But as bad as Reagan was, George W. Bush appointed judges who were even more conservative.

Carp told reporters, “Our findings are significant because the general consensus is that President Reagan is the most modern conservative president on record, and yet the judges appointed by George W. Bush are even more conservative than the Reagan judges.”

The Virginia Law Review article concluded: “No reasonable person seriously doubts that ideology, understood as normative commitments of various sorts, helps to explain judicial votes. Presidents are entirely aware of this point, and their appointment decisions are undertaken with full appreciation of it.”

So when someone tells you that the political affiliation of the president appointing judges doesn’t matter or when a president claims to be appointing judges who interpret the law and not legislate from the bench, don’t believe them.

George E. Curry, former editor-in-chief of Emerge magazine, is editor-in-chief of the National Newspaper Publishers Association News Service (NNPA.) He is a keynote speaker, moderator, and media coach. Curry can be reached through his Web site, www.georgecurry.com. You can also follow him at www.twitter.com/currygeorge and George E. Curry Fan Page on Facebook.

A Victory for Affirmative Action

E-mail Print PDF

(NNPA) Almost lost among the news last week about the war in the Middle East and a war of another kind in Washington between Republicans and President Obama was a bit of good news:  A federal appeals court, acting on a case remanded by the Supreme Court, upheld the University of Texas’ modest affirmative action program.

Celebration of the victory is expected to be short lived because it is certain that the Supreme Court, which remanded the case to the U.S. Court of Appeals for the 5th Circuit last summer, will take the case up again, this time ruling directly on whether the university’s carefully crafted affirmative action program is constitutional.

Unlike the court’s last affirmative action ruling involving Michigan – which had less to do with the merits of affirmative action and was more about whether a state ballot initiative could be used to ban affirmative action – the Texas case goes to the heart of affirmative action.

The lawuit was brought by Abigail Fisher, a White applicant who was turned down for admission to the University of Texas at Austin, the state’s flagship university, in the fall of 2008. Texas operates a Top Ten Percent Plan, which grants automatic admission to state universities to students who graduate in the top 10 percent of their class.  The year Fisher applied, 81 percent of the university’s admission slots was filled in that manner.

The remaining openings were filled through what the university calls a holistic review program, which looks at such factors as demonstrated leadership qualities, extracurricular activities, honors, awards, essays, work experience, socioeconomic status, family composition, family responsibilities, the applicant’s high school and race. No numbers were assigned to any of those categories.

Fisher did not finish in the top 10 percent of her class, forcing her to compete with 17,131 other applicants for the remaining 1,216 seats for Texas residents. Given the number of Top Ten Percent students accepted to the University of Texas, even if Fisher had been perfect in her holistic review, school officials said, “..she could not have received an offer of admissions to the Fall 2008 freshman class. If she had been a minority, the result would have been the same.”

Of all of the factors admissions counselors examined, such as essays and awards, Fisher chose to blame her failure to gain admission strictly on race.

Like a string of Whites challenging affirmative action, she filed suit claiming the consideration of race violated the equal protection clause of the 14th Amendment to the U.S. constitution, a provision that was first adopted to protect former slaves from Southern lawmakers. It states that “no state shall … deny to any person within its jurisdiction the equal protection of the laws.”

As the University of Texas noted, the holistic review was created to give students an individualized review during the admissions process.

“Close scrutiny of the data in this record confirms that holistic review – what little remains after over 80% of the class is admitted on class rank alone – does not , as claimed, function as an open gate to boost minority headcount for a racial quota. Far from it,” the appeals court stated. “The increasingly fierce competition for the decreasing number of seats available for Texas students outside the top ten percent results in minority students being under-represented – and white students being over represented – in holistic review admissions relative to the program’s impact on each incoming class.”

For example, the court noted, “Of the incoming class of 2008, the year Fisher applied for admission, holistic review contributed 19% of the class of Texas students as a whole – but only 12% of the Hispanic students and 16% of the black students, while contributing 24% of the white students.”

In 2003, the Supreme Court, in Grutter v. Bollinger, upheld the constitutionality of affirmative action in a case involving the University of Michigan Law School. The court’s 5-4 majority accepted the assertion that diversity is essential to the educational mission of universities, but required a standard of “strict scrutiny” be applied, requiring that remedies be narrowly tailored to achieve the goal of a diverse student body.

The University of Texas, following a long, documented history of racial animus, complied with that narrow Supreme Court standard and the Fifth Circuit originally sanctioned those efforts. The decision was appealed and the Supreme Court sent the case back to the appeals court. Now, for the second time since 2011, the 5th Circuit judges have stated unequivocally that UT is operating a lawful affirmative action program.

That was evident to Ruth Bader Ginsburg, the lone dissenter in the 7-1 decision to send the Texas cases back to the 5th Circuit . She said, “…Like so many educational institutions across the Nation, the University has taken care to follow the model approved by the Court in Grutter v. Bollinger.”

But this conservative-dominated Supreme Court will probably visit this case yet again, trying to find a way to chip away at one of its own rulings.

George E. Curry, former editor-in-chief of Emerge magazine, is editor-in-chief of the National Newspaper Publishers Association News Service (NNPA.) He is a keynote speaker, moderator, and media coach. Curry can be reached through his Web site, www.georgecurry.com. You can also follow him at www.twitter.com/currygeorge and George E. Curry Fan Page on Facebook
.

Republicans' Selective Memory on Executive Order

E-mail Print PDF

(NNPA) To paraphrase Ronald Reagan, arguably the most overrated U.S. president in history, there they go again. They, of course, are Republicans in the House of Representatives. And they are going after President Obama yet again, this time over his use of executive orders, presidential directives that have been issued by every president over the past 73 years.

First, let’s brush up on our high school civics.

According to a report by the Congressional Research Service (CRS), “Presidents from Franklin D. Roosevelt through Barack Obama have issued orders that seek to leverage the government’s procurement spending to promote socio-economic policies that some commentators would characterize as extraneous to contractors’ provision of goods or services to the government.”

The report, titled “Presidential Authority to Impose Requirements on Federal Contractors,” explained, “Presidential power to issue executive orders must derive from the Constitution or from an act of Congress. Contractor-related executive orders historically have been issued based upon the President’s powers under Article II of the Constitution or the powers delegated to the President by FPASA,” a reference to the Federal Property and Administrative Services Act of 1949.

The CRS report noted. “FPASA states that its purpose is to ‘provide the Federal Government with an economical and efficient system for … [p]rocuring and supplying property and nonpersonal services’ and authorizes the President to prescribe any ‘policies and directives’ consistent with the act that he ‘considers necessary to carry out’ the act’s goals of efficiency and economy.”

One of the most significant presidential actions was Executive Order 11246, which was signed by President Lyndon B. Johnson on Sept. 28, 1965. It requires federal contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin.”

According to CRS, “Under the authority of Executive Order 11246, officials of the Department of Labor issued two orders commonly known as the Philadelphia Plan. The Philadelphia Plan required bidders for federal and federally funded construction contracts in the Philadelphia area valued in excess of $500,000 to submit ‘acceptable affirmative action program[s],’ including ‘specific goals’ for ‘minority manpower utilization’ in six construction trades prior to contract award.”

Of the past 10 presidents, beginning with Franklin D. Roosevelt, President Obama has issued the fewest executive orders per year. According to the American Presidency Project, Obama issued 147 executive orders during his first term, compared to 504 by FDR, 266 by Dwight D. Eisenhower, 247 by Richard M. Nixon, 213 by Ronald Reagan, 200 by Bill Clinton, and 173 by George W. Bush over a similar period.

As of June 20, Obama had issued 35 executive orders during his second term.

His executive actions have stopped the deportation of immigrants who entered the U.S. illegally as children, affected climate change by compelling power plants to reduce their emissions by 30 percent by 2030, raised the minimum wage for federal contractors to $10.10 an hour, extended rights for same-sex couples and impacted gun control with 23 separate executive orders.

Strangely, Republicans, who have voted 54 times over four years to repeal or alter the Affordable Care Act, are not planning to sue President Obama on any of those issues. Instead, House Speaker John A. Boehner (R-Ohio) has asked Congress for permission to sue Obama because he suspended the start date of the employer mandate provision of the health care law.

It doesn’t get more ridiculous than this. Unable to repeal what they call Obamacare, House Republicans are moving faster than the lips of an auctioneer on crack to sue the president because he is making it easier to comply with what everyone except anti-Obama Republicans recognize as the law of the land.

As Sabastian Payne wrote in the Washington Post, “… For all the accusations of abuse of power, his [Obama] actual uses of his executive authority so far aren’t that far-reaching: Not so much the smack of firm government, more nudging in a certain direction. George W. Bush for example managed to gut the Presidential Records Act (greatly reducing access to presidential records), limit federal funding for stem cell research and sidestep the Geneva Convention on interrogation techniques – all through executive orders, even when he had Congress on his side. Interestingly, all of these orders were later rescinded by Obama.”

Payne continued, “Bill Clinton was no stranger to far-reaching orders either. During his two terms in office, he banned the import of 50+ types of semi-automatic assault weapons and assault pistols… In May 1989, George H. W. Bush temporarily halted the importation of some semi-automatic firearms, following a school shooting in Stockton, Calif. This was made permanent a month later. Ronald Reagan also enacted some significant policy initiatives through executive power. The NSA has said that its controversial collection of e-mail and Internet data, for example, was authorized back in 1981 by Reagan’s executive order.”

What Reagan did was far more dangerous than postponing a health care start date. Yet, there wasn’t even talk of taking him to court.

George E. Curry, former editor-in-chief of Emerge magazine, is editor-in-chief of the National Newspaper Publishers Association News Service (NNPA.) He is a keynote speaker, moderator, and media coach. Curry can be reached through his Web site, www.georgecurry.com. You can also follow him at www.twitter.com/currygeorge and George E. Curry Fan Page on Facebook.

Democrats 'Ain’t Loyal'

E-mail Print PDF

(NNPA) Rev. Jamal Bryant of Baltimore was widely criticized recently for quoting a line from a popular Chris Brown’s song: “Hoes Ain’t Loyal.”  Bryant could have avoided controversy – and been on point – if he had instead said, “Democrats ain’t loyal.”

They ain’t, to borrow the vernacular.

Although people of color comprised 45 percent of Democratic voters in 2012, less than 2 percent of the $1.1 billion collected over a 4-year period by the three primary Democratic fundraising committees went to people of color – defined as U.S. residents who are African American, Latino, Asian American or Pacific Islander, or Native American – according to the “2014 Fannie Lou Hamer Report” by PowerPAC+, a national advocacy organization that helps elect progressives to office by building on the political power of the multiracial majority in America.

Actually, the Minority Business Enterprise (MBE) figures are even smaller than reported because the study counted any firm that had a person of color as a principal owner, not the more commonly accepted definition requiring that they be the majority owner.

The research was compiled from Federal Election Commission reports filed by the three largest Democratic fundraising committees: the National Democratic Committee, the Democratic Congressional Campaign Committee and the Democratic Senatorial Campaign Committee.

“Even amidst the massive infusion of ‘outside’ money, the Democratic Party remains the largest source of funds for Democrats seeking office (other than the Presidency ). Each cycle, the

Party takes in hundreds of millions of dollars and uses these funds to provide the national electoral infrastructure and support those of the states,” the report stated.

It explained, “While most of the media attention falls on the mega-donors who make significant financial contributions to the Democratic Party, in the aggregate, small donors actually contribute more to the Party’s finances than do the mega-donors. Indeed, donors who made contributions of less than $200 provided a full third of the Party’s financial resources over the past two cycles, having donated over $371,345,529.”

According to the report, “Well over half a billion dollars was spent on these consultants over the past two election cycles, an amount that represents approximately half of the funds raised and disbursed by the Party.”

But few of those dollars found their way to people of color.

Overall, of 285 firms receiving disbursements from the Democratic Party in the 2010 and 2012 election cycles, only 14 – or 4.9 percent – were MBE firms. Five of the MBEs were polling firms, three provided communications services and six provided political strategy services or IT.

Among the 14 firms, four of them received 87 percent of all dollars disbursed to MBEs. They were, in order, Peter D. Hart Research Associates, Inc., $2,206,772.50 (25 percent of all MBE Research, dollars); SKD Knickerbocker, $2,138,671 (24 percent); Brilliant Corners Research, Inc., $1,908,369.26 (22 percent) and Thoughtworks ($1,328,464.92).

Peter D. Hart, whose firm received the most MBE dollars, is a White male. Yet, highly-respected Black pollster Ronald L. Lester received only $45,670.00 from the Democratic Party, according to the report. Brilliant Corners, headed by Cornel Belcher, an African American, was third among MBEs with $1.9 million. Dewey Square Group, with Minyon Moore, African American, and Maria Cardona, a Latina, on its team received only $81,054.73, or 0.9 percent of MBE dollars.

Among the study’s recommendations:

Conduct a disparity study to diagnose the problem;
Set goals for diversifying contract awards;
Make a plan to increase access and capacity and
Measure progress and hold decision-makers accountable.

In 2014, the Democratic Party has no credible excuse for such poor performance. Even with an exaggerated definition of what constitutes a Minority Business Enterprise, Democrats fall short.

“… Today’s voter looks quite different from the model voter of even 50 years ago who was much more likely to be male, have a job with a union that afforded him time off to vote during the work day, and have access to an array of news sources that offered some semblance of balanced reporting on the candidates and their positions, among other things,” the report stated. “Today, women, especially those not married, form a core part of the Democratic Party’s base, as do Voters of Color. To put it bluntly, these voters are already the largest constituencies within our Party, and their influence will only increase over the coming decades.”

Diversifying spending with Black vendors, Black media and African Americans who offer professional services does not detract from the Party’s overall goal.

“…The ultimate goal of these efforts is to win,” the report observed. “And winning among today’s multiracial and ever evolving electorate requires cultural competence at its finest.”

This report should be followed up with others, including an examination of spending by Republicans.

As the report noted, “It is deeply disappointing that we are even having this conversation in 2014… If People of Color are smart and talented enough that one of them can serve as leader of the free world, then they are certainly smart and talented enough to run political campaigns for Congress, Senate, and the White House.”

George E. Curry, former editor-in-chief of Emerge magazine, is editor-in-chief of the National Newspaper Publishers Association News Service (NNPA.) He is a keynote speaker, moderator, and media coach. Curry can be reached through his Web site, www.georgecurry.com. You can also follow him at www.twitter.com/currygeorge and George E. Curry Fan Page on Facebook.

Right-Wing Gets it Wrong on Mississippi

E-mail Print PDF

(NNPA) If you ever doubted that conservatives were sore losers, the recent Senate election in Mississippi should remove all doubt.

After complaining for a half century about Blacks not voting  for Republicans, African Americans did just that in the GOP runoff between incumbent Senator Thad Cochran and State Senator Chris McDaniel, a staunch Tea Party supporter.  And because Blacks did not vote for McDaniel against their best interest, right-wingers are livid.

Rush Limbaugh called Blacks who voted for Cochran “Uncle Toms.”

According to a transcript of his radio program, he said: “I wonder what the campaign slogan was in Mississippi in the past couple of days: Uncle Toms for Thad? ‘Cause I thought it was the worst thing you could do as an African American. Voting for a Republican is the absolute worst thing you could do, but somehow they were made to believe that voting for old Thad would be fine and dandy.”

Later in the program, Limbaugh said, “…Insider Republicans in the Senate bought nine percentage points, eight or nine percentage points from the Black Uncle Tom voters in Mississippi (interruption). Well, isn’t that what they call Clarence Thomas? Condoleezza Rice? They call ‘em Uncle Toms, the Republicans. These guys had voted for Thad? Uncle Toms for Thad.”

Glenn Beck chimed in: “I have a question for every Black Democrat in Mississippi: What the hell has this 90-year-old fart –  a White Republican, the same White Republican that for years the Democrats have been telling you are nothing but old racists – you tell me exactly what Thad Cochran did for you.”

Sean Hannity, speaking on his June 25 edition of his radio program, said: I am so angry at this Thad Cochran/Chris McDaniel race, I can’t even begin to tell you. … And Thad Cochran, seeing his power slipping away after many decades as a senator in Washington, you know, knew that his career was on the line here. And rather than run with dignity and honor and integrity and honor and decency, what did he do? He did just the opposite. And he was appealing to Democratic voters.”

Hannity contended Cochran “perpetrated the worst libel, the worst smear against conservatives, against the Tea Party, which is this false narrative that you hear every election cycle from Democrats: that conservatives are racist, that conservatives are mistreating the president because he’s Black. None of which is true.”

Let’s take these idiotic comments in reverse order.

Yes, Hannity, Cochran’s career was on the line. McDaniel had edged him by 1,400 votes in the Republican primary and there was no way he was going to win the runoff without appealing to Black Democrats. It wasn’t an issue of “dignity, honor and integrity,” it was about his only chance of winning. Of course, some conservatives are opposed to President Obama because he’s Black. Those who think otherwise are the same ones who believe Fox News is “fair and balanced.”

Glenn Beck, I will answer your question about what “old fart” Thad Cochran has done for Blacks in Mississippi: Nothing. Like every Republican in the House and Senate, he earned an F on the NAACP Legislative Report Card. And his opponent thought Cochran was too liberal. As bad as “old fart” was, African Americans are smart enough to know that McDaniel would have been far worst. He would have crapped on them. And given the choice between being assaulted with a fart and endless crap, we’ll go with the fart any day of the week. Hate to be so crude, Glenn, but I had to explain it in a way that even you would understand.

Finally, Rush Limbaugh, Blacks who voted in the open Republican primary were not Uncle Toms. Unlike some of your favorite Black Republicans, they were not traitors to their race. Instead, they were performing their civic duty. Had they voted the way you preferred, then that would be a real Uncle Tom.

There is doubt that Thad Cochran would not be the Republican nominee without the Black vote, which is why he courted it. All 24 counties with a Black majority went with the incumbent. Perhaps more telling, the turnout in the runoff was up almost 40 percent in those Black counties, compared to just 16 percent in the other counties.

Some Republicans have accused Black Democrats who voted for Cochran of being spoilers, but  that’s not the case. If African Americans had wanted to be spoilers, they would have voted for McDaniel because he would give Democrats a better chance of winning in November’s general election

It was deeper than that. It’s time for everyone to give Black voters in Mississippi credit for knowing what was in their best interest. What all of the pundits seem to miss is that Blacks were not necessarily voting for Thad Cochran. They were voting against Chris McDaniel. Either way you look at it, they were successful.

George E. Curry, former editor-in-chief of Emerge magazine, is editor-in-chief of the National Newspaper Publishers Association News Service (NNPA.) He is a keynote speaker, moderator, and media coach. Curry can be reached through his Web site, www.georgecurry.com. You can also follow him at www.twitter.com/currygeorge and George E. Curry Fan Page on Facebook.

Page 2 of 36

Quantcast

BVN National News Wire