Category Archives: Law

Supreme Court Must-Read: Jeffrey Toobin’s New Yorker Profile of Justice Ruth Bader Ginsburg

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Ruth Bader Ginsburg SOTU

She’s still got it: Justice Ruth Bader Ginsburg receives a warm welcome at the State of the Union.

The New Yorker has just published Jeffrey Toobin’s illuminating profile on Justice Ruth Bader Ginsburg ahead of her 80th birthday on March 15th. (Subscribers to the magazine can access the full text of the ironically-titled piece, “Heavyweight,” at this link.) Chronicling Justice Ginsburg’s early struggles in the male-dominated legal world of the 1950s (Ginsburg had trouble finding someone who would hire her despite having graduated first in her class at Columbia Law), her triumphs as a leading women’s rights advocate with the ACLU, her marriage to the late tax attorney Martin Ginsburg, and her tenure on the Supreme Court, the profile is an understated and touching pre-tribute to the Justice who conventional wisdom tells us is most likely to retire next.

From same-sex marriage ceremonies to retired Justice Sandra Day O’Connor, partial-birth abortion bans to Lilly Ledbetter, “Heavyweight” is full of interesting tidbits and little gems from Justice Ginsburg herself: 

On her brief-writing strategy while litigating cases before the Supreme Court:

“I was doing all these sex-discrimination cases, and my secretary said, ‘I look at these pages and all I see is sex, sex, sex. The judges are men, and when they read that they’re not going to be thinking about what you want them to think about,’ ” Ginsburg recalled. Henceforth, she changed her claim to “gender discrimination.”

On work-life balance:

“It bothers me when people say to make it to the top of the tree you have to give up a family. They say, ‘Look at Kagan, look at Sotomayor’ … What happened to O’Connor, who raised three sons, and I have James and Jane [her son and daughter with Martin Ginsburg]?”

On Chief Justice John Roberts:

“For the public, I think the current Chief is very good at meeting and greeting people, always saying the right thing for the remarks he makes for five or ten minutes at various gatherings.”

On how long she will remain on the bench:

“As long as I can do the job full steam… You can never tell when you’re my age. But, as long as I have the candlepower, I will do it. And I figure next year for certain. After that, who knows?”

Money quotes aside, Toobin’s piece is particularly fascinating when he discusses Justice Ginsburg’s views on the relationship between Congress and the Court. Though she is classified as one of the Supreme Court’s liberals in the vein of Earl Warren and Thurgood Marshall, Ginsburg does not share these predecessors’ conviction that the Court should be the driving force for widespread social change. Instead, Toobin writes, she believes that the Court’s role is to begin dialogue with the elected branches of government, to ask them to reconsider “ancient positions” that may no longer work in our day and age, and then to kick the proverbial ball back to them. In this respect, Justice Ginsburg is very much like President Obama, who also prefers to see social change enacted through the legislative rather than judicial arena (and whose similar views on the judiciary have also been discussed at length by Toobin). It is little wonder, then, that the two seem to get along so famously.

Anyway, the profile is a must-read for anyone who is interested in the Supreme Court, the women’s rights movement, or even just a good life story.

SCOTUS Opinion Alert: In Which Transparency is Dealt a Body Blow

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Obama on Phone

How do you know he’s not listening in on your conversations? Answer: you don’t.

 [Photo by Pete Souza, found via the Council on Foreign Relations]

For those of us who believe that the government needs to be more transparent in matters of national security, yesterday was not a very good day. In its first 5-4 opinion of this term, the Supreme Court split along ideological lines and ruled in favor of protecting a wide-ranging international surveillance program from constitutional challenges. Specifically, the Clapper v. Amnesty International opinion makes it much more difficult for lawyers, journalists, and human rights practitioners who suspect the United States of wiretapping their communications with non-Americans abroad to bring suit for such governmental behavior unless they have concrete proof that their correspondence will be intercepted.

At issue in Clapper is the Foreign Intelligence Surveillance Act (FISA), which allows the United States to target the communications of non-citizens on foreign soil. First authorized in 1978, FISA originally limited the Government to instances where it could show probable cause (to a special closed court known as a Foreign Intelligence Surveillance Court) that its individual targets were “foreign powers or the agents of foreign powers.”  In 2008, however, Congress amended FISA to include Section 1881a, a provision which removed the probable cause requirement and greatly expanded both the pool of people and the kinds of communications that could be monitored.

While FISA is aimed at foreign nationals who fall outside the protection of the Fourth Amendment, one effect of the law was the warrantless interception of thousands of international communications between FISA targets and American citizens. Shortly after the passage of 1881a, a group of American legal, labor, media and human rights organizations led by Amnesty International asked the Supreme Court to overturn that provision. Claiming that they frequently communicate with non-American clients, coworkers, witnesses and sources abroad, the challengers argued that this law violated their First and Fourth Amendment rights.

Before they could even get to the constitutionality of 1881a, however, the challengers ran into a practical problem: because of the secrecy involved in such surveillance programs, they couldn’t find any hard evidence that the United States was actually looking at their correspondence. Since Article III of the Constitution requires that you show some “injury” before you can bring a suit, Amnesty International argued that the injury lay in the “objectively reasonable likelihood” their conversations were or might be intercepted. The challengers further claimed that they had suffered numerous economic and professional harms in trying to avoid these interceptions, such as having to fly abroad to speak with clients in-person rather than over phone or email, and the reluctance of sources to disclose information in light of the potential eavesdropping. In response, the United States claimed that no one in this group had standing to bring this lawsuit, because (1) FISA targets only non-Americans, and (2) they simply could not prove that they were being intercepted. After the Second Circuit agreed with Amnesty International, the United States brought an appeal.

 Justice Alito

Justice Samuel Alito, a huge fan of certainty.

[Photo via Columbia Law School]

Justice Alito’s opinion, which was joined by Chief Justice Roberts and Justices Scalia, Thomas and Kennedy, reverses the Second Circuit ruling by accepting the Government’s stance that the challengers’ claimed injuries were too speculative to allow the suit to continue to trial. Alito found the Second Circuit’s “objectively reasonable likelihood” standard inconsistent with his reading of Supreme Court precedents, which he believes require a (much harder to show) “certainly impending” injury in order to establish standing. Ignoring the fact that it would be nearly impossible for any American to prove that the Government will monitor his correspondence under 1881a, Alito repeatedly emphasized that the challengers’ fears of future surveillance were nothing more than a “highly attenuated chain of possibilities.” Likewise, Alito brushed aside the fact that some of the challengers’ foreign contacts included the friends and family of Guantanamo detainees (including rather high-profile clients like Khalid Sheikh Mohammed and Mohammedou Ould Salahi) whose communications had already been monitored by the United States.

The majority opinion was also quite unsympathetic to the increased economic and professional costs of operating under 1881a, despite the fact that lawyers and journalists have an ethical duty to protect confidential communications with clients and sources:

“[The challengers] cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending… Because [they]do not face a threat of certainly impending interception under 1881a, the costs that they have incurred to avoid surveillance are simply the product of their fear of surveillance.”

Naturally, the liberal wing of the Court, which had vociferously questioned the United States at oral argument about the fairness of a law for which virtually no one has standing to challenge, took issue with all parts of the majority opinion. The Justice Breyer-penned dissent also looked to precedent and rejected the majority’s “certainly impending” injury standard in favor of a “reasonable probability” or “high probability” injury standard:

“…[C]ertainty is not, and has never been, the touchstone of standing. The future is inherently uncertain. Yet federal courts frequently entertain actions for injunctions and for declaratory relief aimed at preventing future activities that are reasonably likely or highly likely, but not absolutely certain, to take place. And that degree of certainty is all that is needed to support standing here.”

Breyer went on to list no fewer than 18 cases in which federal courts found standing even where the likelihood of injury was “far less certain than here.” In addition, he argued that under the Supreme Court’s 2010 decision in Monsanto Co. v. Geertson Seed Farms, “reasonable efforts to mitigate the threatened effects of the future injury”–i.e., the economic costs that the 1881a challengers incurred in trying to keep their communications confidential–could constitute an injury sufficient enough for standing. Looking at the Government’s motive, capabilities and previous actions under 1881a and some other “commonsense inferences,” the dissent concluded that the challengers had in fact met the “reasonable probability” of injury standard and should have been allowed to contest 1881a’s constitutionality at trial.

Unfortunately, the dissenting justices were unable to convince a fifth colleague over to their side, meaning that the federal government is now incentivized to take one more step away from transparency. In his opinion, Justice Alito countered this concern by choosing to place his faith in the special Foreign Intelligence Surveillance Courts, which he believes will keep the Government accountable to the Constitution. As Justice Breyer’s dissent pointed out, however, these closed, secret courts (which do not make their hearings or records available to the public) very rarely reject any of the Government’s surveillance plans, and should not be the only safeguard for Americans’ civil liberties.  Nonetheless, the message that the Supreme Court sent yesterday is clear: the more secretive the United States keeps its national security programs, the safer they are from constitutional challenges, and the harder it is for ordinary Americans to vindicate what may be flagrant violations of their rights. We should all be very scared.

Pay no mind to the man behind the curtain.

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The Guantánamo Bay trial proceedings for alleged terrorist mastermind Khalid Sheikh Mohammed hit a speed bump on Monday:

The courtroom is set up so that spectators behind sound-proof glass can listen to an audio feed with a forty-second delay. As Carol Rosenberg of the Miami Herald describes it, “A red emergency light spins in court when a censor at the judge’s elbow hits the mute button to prevent someone from spilling national security secrets.” At just before 2:30 P.M., David Nevin, one of the defense lawyers, who was addressing a brief having to do with C.I.A. secret prisons, said he understood that “we are going to do this in a 505 and that some portion of this will turn out to be closed or secret.” As he pronounced “secret,” the light began to flash and white noise filled the audio feed, as if it had been a trigger word—even though neither the security officer or the judge had touched the button. That’s when the judge, James Pohl, realized that he was not, as he’d thought—given the trappings and the job title—running his own courtroom. Some unknown person in another room was, and was apparently able to turn the audio off or on, or, for all anyone knew, pipe in the soundtrack to “Zero Dark Thirty.”

Judge Pohl, who is also an Army colonel, was confused and angry.

“If some external body is turning the commission off under their own view of what things ought to be, with no reasonable explanation because I—there is no classification on it, then we are going to have a little meeting about who turns that light on or off,” the judge said.

Apparently “baby killing” is not such an effective scare tactic anymore

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Today marks the 40th anniversary of Roe v. Wade, and a new poll reveals that the ruling is more popular now than it’s ever been before:

Seven in 10 adults say the Supreme Court should not overturn its landmark decision establishing abortion rights, according to a new Wall Street Journal/NBC poll.

That is the highest level of support for Roe v. Wade in the poll’s 24 years of tracking the question. Only about one in four said the court should overturn its verdict.

Michael Tomasky zooms out:

Same-sex marriage approval. Marijuana legalized. Now this. It continues to amaze me how the country has flipped culturally. I think this is probably Obama’s biggest impact, more than health care or anything else. He’s changed the political culture of the country. In some senses by doing particular things–repealing don’t ask, don’t tell. But in other senses just by being Barack Obama.

In accepting him as their president (which 70 percent of Americans happily do, even when they may disagree with this or that policy), Americans appear also to have accept in some internal way that it’s a different time and a different country now. It seems natural that that psychic change would first manifest itself in certain shifting cultural attitudes, as these are low-hanging fruit compared to the big policy changes that face ferocious opposition in Washington.

It may also be that it’s not really Obama who made these changes, that they were well in formation when he just happened to come along and embody them. I think here of the Beatles as an analogy. They certainly changed the culture and the world and led a revolution, but many societal factors were lined up in harmony just waiting for someone to come along and pop the cork: the rise of the teenage demographic, the end of conscription (in Britain, which gave young males more freedom), and so on. Everything came together and boom it all went. Same kind of thing here.

Forget Clarence Thomas: In Louisiana, You Can Be Guilty Before Proven Guilty

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Why you should care about Boyer v. Louisiana: Criminal defendants without the money to pay for their defense are being imprisoned for years without trial, subverting the basic tenet of “Innocent Before Proven Guilty.” (Picture via: http://www.britannica.com/blogs/wp-content/uploads/2010/06/supreme-court.jpg.)
Why you should care about Boyer v. Louisiana: Criminal defendants without the money to pay for their defense are being imprisoned for years without trial, subverting the basic tenet of “Innocent Before Proven Guilty.” (Picture via: http://www.britannica.com/blogs/wp-content/uploads/2010/06/supreme-court.jpg.)

As the dust settles from Monday’s Boyer v. Louisiana oral argument before the Supreme Court, the major news takeaway is undoubtedly Justice Clarence Thomas’ breaking of a nearly seven-year silence from the bench to crack what may or may not have been a joke about the competence of either Harvard or Yale-trained lawyers (the full transcript of the argument is here).  Much hay has been made in the press over what Thomas’ joke could have meant–see the near-breathless coverage analyzing the Justice’s mindset here, here and here–but the actual arguments behind Boyer, which explores the limits of the state’s obligation to provide a speedy trial for an indigent death penalty defendant, are interesting enough to merit a second glance as well.

Jonathan Boyer and the state of Louisiana disagree over almost every aspect of what happened on the night of February 3, 2002, when Bradlee Marsh was shot three times and killed as he sat in his pickup truck. While Louisiana maintains that Boyer was responsible–a conclusion bolstered by Boyer’s subsequent confession and the testimony of Boyer’s brother–Boyer claims that his “confession” was fake and that someone else was behind the killing. Regardless of the perpetrator’s identity, all sides agree that after his arrest and indictment for first-degree murder, Jonathan Boyer waited over five years in prison for his trial to begin after Louisiana appointed but did not have the money to fund the two requisite attorneys assigned to defend his death penalty case. (The federal Constitution does not mandate two defense lawyers in capital cases, but Louisiana state court rules do.)  It was only after the state decided to drop the first-degree murder charge–a move which took the death penalty off the table and made his case less expensive to defend–in favor of lesser charges that adequate funds were freed up and trial began. By this time, several witnesses had died or otherwise become unavailable. Boyer was convicted of second degree murder and armed robbery and sentenced to life imprisonment without parole. He now argues that Louisiana’s failure to fund his lawyers in the years it spent pursuing the death penalty led to a violation of his Sixth Amendment right to a speedy trial–the remedy for which requires a reversal of his murder conviction.

The Supreme Court outlined in 1972’s Barker v. Wingo a four-factor balancing test for determining whether a Sixth Amendment infringement has taken place: (1) the length of delay, (2) the reason for the delay, (3) whether and how the defendant asserted his right to a speedy trial, and (4) the prejudice that the defendant suffered due to the delay. Depending on the facts of the case, each factor is weighed against either the defendant or the state. In 2009’s Vermont v. Brillon, the Court found that a “systemic breakdown” in the public defender system leading to a delay of trial could be counted against the state. The main question in Boyer is whether a five-year failure to provide funding for the indigent’s appointed defense should similarly be held against the state. A “Yes” to that question doesn’t automatically mean that Boyer’s speedy trial rights were violated, but it does help his case in the Barker balancing.

Unsurprisingly, Louisiana argues that the delay in funding should not be held against the state so long as the state did not purposely withhold the money to avoid trial. Though Louisiana’s prosecutorial offices routinely received surpluses (of hundreds of thousands of dollars) to try cases in the same period of time that Boyer awaited trial from prison, the state maintains that the lack of funds for his defense resulted from other factors beyond its control, like Hurricane Katrina cleanup and the available monies being used up in other capital cases. Louisiana insists that it already dealt Boyer a more-than-fair hand by even bothering to appoint two counsel for him, which was enough to safeguard Boyer’s Constitutional rights.

At Monday’s lively oral argument, the Justices split over whether the delay was actually attributable to Boyer or to the state. Justice Scalia agreed with Louisiana that the state had already been very “generous” in naming multiple Ivy League-educated attorneys for Boyer (which is where Justice Thomas stepped in with his now-infamous four-word joke concerning their competence). Rather than putting the onus on Louisiana to fund the two lawyers required under its own state procedure, Scalia postulated that had Boyer truly cared about getting a speedy trial, he would have waived his state right to two attorneys and proceeded with just the one lawyer required by the federal Sixth Amendment. Justice Ginsburg questioned whether Boyer, a man with an eighth-grade education, knew that this option was available to him. Justice Kagan pointed out that even Louisiana seemed unaware that Boyer could move forward with only one attorney, since it had previously explained the delay by saying it could not “ethically or legally bring [Boyer] to trial” because he had been “without properly funded counsel for so long.” Meanwhile, Justice Sotomayor, who has worked as a prosecutor in New York, repeatedly pressed Louisiana to explain how a state’s choice to fund prosecutors’ investigations (or anything else) over capital defendants’ lawyers could not be attributed to the state.

The Justices also sparred over the scope of the question to be decided. In addition to laying out the four-factor balancing test, Barker v. Wingo holds that speedy trial challenges must be considered on a case-by-case basis, which allows for a far more fact-intensive inquiry than the Supreme Court is used to handling. Several members of the Court, led by Justice Breyer, mentioned repeatedly that the Court’s only job is to consider the general question of whether the failure to fund counsel should weigh against the state in a speedy trial challenge. (If so, they are content to send the case back down to the Louisiana courts for the case-specific reconsideration of whether such a violation occurred.)  Justice Scalia, however, believes the Supreme Court should both answer the general question AND perform the case-specific four-factor reanalysis for Boyer. To that end, Scalia spent a significant part of the oral argument focusing not only on the reason for the delay but on whether Boyer and his legal team properly brought up the speedy trial issue in the lower courts, whether he actually suffered prejudice due to the delay, and whether a reversal of his murder conviction would still leave him with a 99-year concurrent sentence for his armed robbery conviction.

If the oral argument is any indication, Justices Alito, Ginsburg, Sotomayor and Kagan agree with Breyer’s general reading of the question presented. These Justices also seem receptive to the idea that the lack of indigent defense funding is attributable to the state. This would constitute the five-Justice majority needed to remand the case to the state court for re-analysis.  It’s possible that Boyer could still lose his battle there–notwithstanding a SCOTUS ruling that the failure to fund should be weighed against Louisiana, Louisiana could still win the overall Barker balancing back in the lower court. But even if this happens, the Supreme Court will have (at the very least) sent a clear message to the states that if they keep shunting indigent defendants to the back of the line, they will be held responsible for such decisions.

The jovial man. (Picture via: http://www.article-3.com/wp-content/uploads/2013/01/Justice-Thomas.jpg.)
The jovial man. (Picture via: http://www.article-3.com/wp-content/uploads/2013/01/Justice-Thomas.jpg.)

As for Clarence Thomas’ thoughts on the fundamental questions of the case: who really knows? He hasn’t asked a substantive question at oral argument since 2006, and he certainly didn’t start on Monday. (I’m inclined to agree with Tom Goldstein of SCOTUSblog and Andrew Cohen of The Atlantic when they say the hoopla over the joke was a case of much ado about nothing.) Given the issues at stake, it’s too bad that Justice Thomas’ offhand remark ended up overshadowing the interesting points coming from both sides.*  The depressing truth about death penalty cases is that they take an extraordinary amount of effort and resources to defend–money and time must be spent for thorough investigation and expert witnesses, for both the trial and the sentencing phases–and as Justice Sotomayor pointed out, only a very small group of lawyers in this country are even qualified to argue death penalty cases. A defendant with money may be able to hire such a lawyer and pay for the investigation, but the indigent’s court-appointed counsel cannot be expected to pay such expenses out of pocket. And while it’s not unforeseeable that very cash-strapped states acting in good faith may simply not have enough money some years to try or defend all their capital cases, it is brutally unfair to make the indigent defendant bear the brunt of those funding decisions by waiting out that time in prison.

In other words, Louisiana for over five long years subjected an untried Jonathan Boyer to a philosophy of “guilty before proven guilty,” a situation he was powerless to avoid because he had no means of his own to mount a defense and no authority to change the state’s funding decisions. Regardless of Boyer’s culpability for the murder of Bradlee Marsh, the Supreme Court needs to remember that the Constitution guarantees a speedy trial for those found innocent and those ultimately found guilty, for those who can afford to defend themselves and those who cannot. Louisiana needs to be held accountable for its choice.

—

*I do wonder what Justice Thomas himself thinks of all the media attention surrounding his comment, particularly when he opined publicly in April 2012 that his fellow Justices should listen more and refrain from interrupting lawyers so frequently during oral argument.

Robert Bork’s America

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The 85-year-old former judge died today, and Jeffrey Toobin — breaking from punditocratic tradition — went for the jugular:

Robert Bork, who died Wednesday, was an unrepentant reactionary who was on the wrong side of every major legal controversy of the twentieth century. The fifty-eight senators who voted against Bork for confirmation to the Supreme Court in 1987 honored themselves, and the Constitution. In the subsequent quarter-century, Bork devoted himself to proving that his critics were right about him all along…

It was said, in later years, that Bork was “borked,” which came to mean treated unfairly in the confirmation process. This is not so. Bork was “borked” simply by being confronted with his own views—which would have undone many of the great constitutional landmarks in recent American history. As Senator Edward Kennedy put it in a famous speech on the Senate floor, “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, [and] writers and artists would be censored at the whim of government.”

Was Kennedy too harsh? He was not—as Bork himself demonstrated in the series of intemperate books he wrote after losing the Supreme Court fight and quitting the bench, in 1987. The titles alone were revealing: ”The Tempting of America,” “Slouching Towards Gomorrah: Modern Liberalism and American Decline,” and “Coercing Virtue: The Worldwide Rule of Judges.” One of his last books may have summed up his views best. Thanks in part to decisions of the Supreme Court—decisions that, for the most part, Bork abhorred—the United States became a more tolerant and inclusive place, with greater freedom of expression and freedom from discrimination than any society in history. Bork called the book, accurately, “A Country I Do Not Recognize.”

Marriage equality and the Supreme Court

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David Cole reminds us that the upcoming Supreme Court cases on same-sex marriage are important, but nevertheless remain just a part of a much longer, inevitable march towards full marriage equality:

Whatever the Court does will affect gay marriage only in the short term. The political tide has turned decisively in the direction of marriage equality, and nothing the Court does can stop it. Polls show that two-thirds of Americans today support recognition of gay marriage or civil unions for gay couples, and young people favor marriage equality by especially large margins. In the 2012 elections, marriage equality proponents prevailed in all four states where gay marriage was on the ballot, and President Obama’s announcement in May that he had (finally) decided to support gay marriage appears to have cost him no votes. The statistician Nate Silver has predicted, based on state-by-state demographic poll results, that by 2016, the only states that do not have a solid majority in favor of gay marriage will be in the Deep South, and that by 2024, a majority will support gay marriage even in Mississippi, which he predicts will be the longest hold-out. Gay marriage is an inevitability.

But if the Court’s decisions in the gay marriage cases may not have lasting consequences for gay marriage, they are likely to have historic significance for the legacy of the Roberts Court. If it upholds the laws at issue, its decisions will almost certainly come to be viewed as the Plessy v. Ferguson of the twenty-first century, defending and reinforcing a deeply discriminatory practice without good constitutional reason. If, by contrast, the Court rules, as it should, that marriage equality is constitutionally required, its decisions will be celebrated in the history books alongside Brown v. Board of Education. Which side would you want to be on?

Related articles

Supreme Court to Hear Prop 8, DOMA case

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Photo by: J. Emilio Flores for the New York Times
Photo by: J. Emilio Flores for the New York Times

SCOTUSblog is reporting that the Supreme Court has granted certiorari to both Hollingsworth v. Perry, the California Proposition 8 case, and United States v. Windsor, a Defense of Marriage Act challenge. The Court will hear arguments in the two cases when it reconvenes in 2013.

Lyle Denniston has a preliminary breakdown of the order on SCOTUSblog’s live blog:

Prop. 8 is granted on the petition question — whether 14th Am. bars Calif. from defining marriage in traditional way. Plus an added question: Whether the backers of Prop.. 8 have standing in the case under Art. III.

[With regards to United States v. Windsor]: In addition to the petition question — whether Sec. 3 of DOMA violates equal protection under 5th Amendment, there are two other questions: does the fact that government agreed with the [Second Circuit] decision deprive the Court of jurisdiction to hear and decide the case, and whether BLAG (House GOP leaders) has Art. III standing in this case.

There is a good deal of complexity in the marriage orders, but the bottom line is this: the Court has offered to rule on Prop. 8 and on DOMA Section 3, but it also has given itself a way not to decide either case. That probably depends upon how eager the Justices are to get to the merits; if they are having trouble getting to 5 [justices] on the merits, they may just opt out through one of the procedural devices they have offered up as potentials.

More coverage of this development can be found here, here, here and here.

The GOP: always watchful of that UN takeover

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Today, the Republican Party in the Senate rejected a United Nations treaty to protect the rights of the disabled:

Former Senator Bob Dole of Kansas sat slightly slumped in his wheelchair on the Senate floor on Tuesday, staring intently as Senator John Kerry gave his most impassioned speech all year, in defense of a United Nations treaty that would ban discrimination against people with disabilities.

Senators from both parties went to greet Mr. Dole, leaning in to hear his wispy reply, as he sat in support of the treaty, which would require that people with disabilities have the same general rights as those without disabilities. Several members took the unusual step of voting aye while seated at their desks, out of respect for Mr. Dole, 89, a Republican who was the majority leader.

Then, after Mr. Dole’s wife, Elizabeth, rolled him off the floor, Republicans quietly voted down the treaty that the ailing Mr. Dole, recently released from Walter Reed National Military Medical Center, so longed to see passed.

A majority of Republicans who voted against the treaty, which was modeled on the Americans With Disabilities Act, said they feared that it would infringe on American sovereignty.

Among their fears about the disabilities convention were that it would codify standards enumerated in the United Nations Convention on the Rights of the Child — and therefore United Nations bureaucrats would be empowered to make decisions about the needs of disabled children — and that it could trump state laws concerning people with disabilities. Proponents of the bill said these concerns were unfounded.

The measure, which required two-thirds support for approval, failed on a vote of 61 to 38.

Joshua Keating notes the surprising influence of homeschoolers in ensuring the treaty’s failure to be ratified:

In addition to groups like the Heritage Foundation — which opposes nearly any U.N. treaty on sovereignty grounds — and anti-abortion politicians like Rick Santorum who argue, inaccurately, that the law could lead to abortion being mandated for disabled children, the politically powerful, but usually under-the-radar U.S. homeschooling movement has been one of the most pivotal lobbies working against U.S. Senate ratification of the treaty. The Homeschool Legal Defense Association claims to have sent anywhere from 8,000 to 20,000 letters and emails to lawmakers urging them to oppose the treaty:

“I think the homeschool movement was more mobilized on this issue than any issue in the last decade,” Estrada said, noting that a large population of homeschooling families had at least one child with a disability.

“They realized this wasn’t about disabilities issue, this was about who was going to make decisions for children with disabilities,” he said.

Keating explains:

Groups like the HLDA argue that the treaty could allow the U.N. to mandate that parents who home school their disabled children to send them to government-run schools. (It says nothing of the sort.)  They may also be worried that adoption of the law could set a precedent for the United Nations Convention on the Rights of the Child, which they oppose on equally specious, but perhaps slightly more comprehensible grounds

It is indeed sad that a perfectly reasonable treaty was just rejected based on a complete misreading of it, but it’s yet more evidence of how influential a small group can be when it gets very organized and very loud.