It is no big secret that the President has struggled to get his executive branch and judicial nominees confirmed by the Senate over his time in office. The incessant blocking effort by the minority Senate Republicans halted any attempt to diversify the courts prior to Reid’s ‘nuclear option’. In fact, over half of all filibustered nominees for executive branch and judicial positions – since before the White House was even built – have taken place during President Obama’s five years as President. The effect of this staggering conservative grip on power can be seen in most evidently in the decisions handed down by the courts. From those decisions, we can see that corporate America has a dedicated team batting for their side in the courtrooms of the United States.
In 2010, the case of Citizens United v. Federal Election Committee threw up a surprising result, in which the US Supreme Court used the First Amendment to strike down restrictions of corporations and unions using treasury money to finance political expenditure. This contradicted several previous court precedents, and Judge Stevens – one of the four Supreme Court dissenters – argued that the winning conservative majority had expanded the scope of the question they were addressing, to give themselves an opportunity to change the law. The dissenters argued that the threat of big moneyed corruption – essentially, vast sums of money spent on campaigns exchanged for Congressional votes – was a big enough reason to place limits on corporate expenditure. This was ignored, and the court applied First Amendment rights to corporations; entities that can’t vote, can’t be thrown in prison, are completely amoral, and whose purpose it solely to make money, and have never taken too kindly to democratic accountability. The court essentially decided that corporations are people.
In 2007, the case of Ledbetter v. Goodyear Tire & Rubber Co. led to the US Supreme Court finding in favour of corporate interests discriminating on basis of gender. Lilly Ledbetter was hired by Goodyear in 1979, retiring in 1998. During those years, she was paid significantly less than her male counterparts. This led to further inequality in her social security, and overtime pay. She only learned of this inequality toward the end of her career. The Supreme Court ruled that because she didn’t file suit within 180 of her first paycheck, she couldn’t sue for gender discrimination. The Supreme Court thus ruled in favour of corporate interests, when it conflicts with gender equality.
In 2011, the case of PLIVA, Inc. v. Mensing, the Supreme Court ruled that generic-drug companies cannot be held liable under state law, for failing to give full label warnings of potential side effects of the drugs they produce. This came about after Gladys Mensing sued PLIVA for failing to report the dangers of the drug they were producing, which led to Gladys developing a completely irreversible neurological movement disorder. The Supreme Court found in favour of PLIVA, even if PLIVA failed to notify the FDA of new health risks.
Time after time, the Roberts court in the United States rules largely in favour of corporate interests, ignoring past precedents, or just completely overturning previous finance, labor, health, environment, and tort law. Citizens United, Ledbetter, PLIVA, Inc. v. Mensing, Exxon-Valdez, Sorrell vs. IMS Health, Philip Morris USA v. Williams, Gross v. FBL Financial Services AT&T Mobility v. Concepción. The list is endless. And usually results in a 5-4 decision in favour of corporate interests. This is a direct result of the conservative grip on power over the courts in the US.
The constant threat of filibuster meant the President’s field of eligible candidates significantly withered, and professional diversity, nonexistent. According to research by the Alliance for Justice, of President Obama’s 281 judicial nominees, only 10 have experience in representing labor and worker interests in disputes. Only four of the 56 circuit judicial nominees have worked as public defenders, compared to 21 as prosecutors. Around 85% of President Obama’s judicial nominees to be confirmed have worked as Corporate attorneys or prosecutors. Of the 177 judicial nominees to the district courts, only 8 worked previously in a public interest role. A staggering 71% of President Obama’s district court nominees have worked primarily with corporate interests. The problem is clear; the courts lack professional diversity.
It is perhaps true that Reid’s Senate ‘nuclear option’ opened opportunities for incredibly talented judges from all walks of life, with experience representing individual workers and consumers rather than just corporate interests, to enter the district and circuit courts without fear of filibuster, but as it stands right now, the courts of the US lack that much needed diversity. As of today, there are 29 vacancies for the district courts, and six for circuit courts. Selection committees for the judiciary on a state level should be using this time to promote professional diversity, and specifically encouraging those with public interest backgrounds to apply. Reid’s nuclear option – requiring a simple majority to confirm nominees rather than a filibuster proof majority – presents a wonderful opportunity for Democrats to push for a far more diverse judiciary – not just in terms of racial, gender, and sexuality diversity, but also professional experience – and a unique opportunity to change the power balance in the US for the better.