Senate Kills Immigration Bill, House Prevents "Fairness Doctrine" Return, Supreme Court Rules Against Integration Based on Skin Color

1.
Senate Drives Stake Through Immigration
Jun 29 02:19 AM US/Eastern
By JULIE HIRSCHFELD DAVIS
Associated Press Writer

Breitbart

WASHINGTON (AP) - President Bush's immigration plan to legalize as many as 12 million unlawful immigrants while fortifying the border collapsed in the Senate on Thursday, crushing both parties' hopes of addressing the volatile issue before the 2008 elections.
The Senate vote to drive a stake through the delicate compromise was a stinging setback for Bush—who had made reshaping immigration laws a centerpiece of his domestic agenda—engineered by members of his own party.

It could carry heavy political consequences for Republicans and Democrats, many of whom were eager to show they could act on a complex issue of great interest to the public.

"Legal immigration is one of the top concerns of the American people and Congress' failure to act on it is a disappointment," a grim-faced president said after an appearance in Newport, R.I. "A lot of us worked hard to see if we couldn't find common ground. It didn't work."

Sen. Edward M. Kennedy, D-Mass., his party's lead negotiator on the bill, called its defeat "enormously disappointing for Congress and for the country." But, he added: "We will be back. This issue is not going away."

The bill's Senate supporters fell 14 votes short of the 60 needed to limit debate and clear the way for final passage of the legislation. The tally was 46 to 53, with three-quarters of the Senate's Republicans voting to derail the bill.

Lawmakers in both parties said further action was unlikely this year, dooming its prospects as the political strains of a crowded presidential contest get louder.

Only 13 percent of those in a CBS News Survey taken earlier this week said they supported passage of the bill. Almost three times that number, 35 percent, opposed it. Even more, 51 percent, said they did not know enough about the immigration legislation to say whether they supported passage.

"I believe that until another election occurs, or until something happens in the body politic, that what occurred today was fairly final," said Sen. Mel Martinez, R-Fla., the GOP chairman.

"I don't see where the political will is there for this issue to be dealt with," said Martinez, who helped develop the bill.

House Democratic leaders signaled they had little appetite for taking up an issue that bitterly divides both parties and has tied up the Senate for weeks.

Rep. Zoe Lofgren, who heads the House Judiciary subcommittee that was to write a version of the bill, said the Senate's inability to move forward "effectively ends comprehensive immigration reform efforts" for the next year and a half.

"The Senate voted for the status quo," the California Democrat said in a statement.

The vote already had led to partisan finger-pointing.

Howard Dean, the Democratic Party chairman, said it was "a reminder of why the American people voted Republicans out in 2006 and why they'll vote against them in 2008."

The measure was the product of a liberal-to-conservative alliance led by Kennedy and Sen. Jon Kyl, R-Ariz., that forged an immigration compromise intended to withstand challenges from the left and right.

They advocated the resulting measure as an imperfect but necessary fix to the current system, in which millions of illegal immigrants use forged documents or lapsed visas to live and work in the U.S.

The proposal would have made those millions eligible for lawful status while tightening border security and creating an employee verification system to weed out illegal workers from U.S. jobs.

The bill also would have set up a temporary worker program and a system to base future legal immigration more heavily on employment criteria, rather than family ties.

Ultimately, though, what came to be known as their "grand bargain" commanded only lukewarm support among important constituencies in both parties. That was no match for the vehement and vocal opposition of Republican conservatives, who derided it as amnesty.

"The end result was a blanket that was too small to cover everyone," said Tamar Jacoby, an analyst at the conservative Manhattan Institute who was a strong supporter. "By its nature, because it was a compromise, it was hard to muster intense support. But the opposition was very intense."

Conservative foes' were among the loudest voices during the debate, led by Sens. Jeff Sessions, R-Ala., Jim DeMint, R-S.C., and David Vitter, R-La. Their views were amplified by talk radio and television hosts who attacked the bill and urged listeners to flood Congress with calls, faxes and e-mails.

The conservatives hailed the demise of the bill as a fitting death of an effort that had thwarted the public's will. They faulted Bush and their own party for trying to push through a measure that lacked public support and placed Republicans in a politically tough spot.

"They made a big mistake. I think the president's approach didn't work," Sessions said. Republicans "need to be careful we don't walk into such an adverse circumstance again. This did not work out well. Our own members were placed in difficult positions."

Bush made an unusually personal appeal for passage of the legislation, appearing at a luncheon with Senate Republicans this month to urge them to put aside their skepticism.

He sent Homeland Security Secretary Michael Chertoff and Commerce Secretary Carlos Gutierrez, as well as his top policy aides, to spend hours in Capitol Hill meetings with senators over a period of months to develop and then help push through the deal.

The two secretaries were on hand to buttonhole senators as they entered the chamber for votes.
The outcome, though, was a stunning reversal from just a few weeks ago, when Bush confidently declared, "I'll see you at the bill- signing."

Mexico's president, Felipe Calderon, said the Senate had made a "grave error" in killing the legislation. The action, he said, would cut off legal immigration, permit continued unlawful immigration and human rights violations and decrease security on both sides of the border.

Voting to allow the bill to proceed by ending debate were 33 Democrats, 12 Republicans and independent Joe Lieberman, Conn. Opposing that effort were 37 Republicans, 15 Democrats and independent Bernard Sanders, Vt. Tim Johnson, D-S.D., who has been absent from the Senate all year due to an illness, did not vote.

In a mark of lawmakers' ambivalence on the issue, the outcome was substantially different from a test-vote earlier in the week, when the Senate voted 64-35 to revive the bill. Then, 24 Republicans joined 39 Democrats and Lieberman to move ahead with the bill. On Thursday, 12 of those Republicans and six of the Democrats switched their votes and opposed moving forward.

All the Democratic presidential candidates in the Senate voted to end debate and advance the bill. Among the Republican candidates, only Sen. John McCain of Arizona voted to keep the measure alive.

Information on the bill, S. 1639, can be found at http://thomas.loc.gov/


2.
Fairness Doctrine hammered 309-115
By Alexander Bolton
June 28, 2007

The Hill

The House voted overwhelmingly Thursday to prohibit the Federal Communications Commission (FCC) from using taxpayer dollars to impose the Fairness Doctrine on broadcasters who feature conservative radio hosts such as Rush Limbaugh and Sean Hannity.

By a vote of 309-115, lawmakers amended the Financial Services and General Government appropriations bill to bar the FCC from requiring broadcasters to balance conservative content with liberal programming such as Air America.

The vote count was partly a testament to the influence that radio hosts wield in many congressional districts.

It was also a rebuke to Democratic senators and policy experts who have voiced support this week for regulating talk radio.

House Democrats argued that it was merely a Republican political stunt because there is little danger of the FCC restricting conservative radio while George W. Bush is president.

Republicans counter that they are worried about new regulations if a Democrat wins the White House in 2008.

Senate Majority Whip Dick Durbin (D-Ill.) said on Tuesday that the government should revive the Fairness Doctrine, a policy crafted in 1929 that required broadcasters to balance political content with different points of view.

“It’s time to reinstitute the Fairness Doctrine,” he said. “I have this old-fashioned attitude that when Americans hear both sides of the story, they’re in a better position to make a decision.”

Sen. Dianne Feinstein (D-Calif.), chairwoman of the Senate Rules Committee, said this week that she would review the constitutional and legal issues involved in re-establishing the doctrine.

Sen. John Kerry (Mass.), the Democratic Party’s 2004 presidential nominee, also said recently that the Fairness Doctrine should return.

In 1985 the FCC discarded the policy after deciding that it restricted journalistic freedom and “actually inhibit[ed] the presentation of controversial issues of public importance to the detriment of the public and in degradation of the editorial prerogative of broadcast journalists,” according to a Congressional Research Service report.

Thursday, the House firmly rejected the prospect of requiring balanced views on talk radio.

Before the passage of the amendment, which he sponsored, Rep. Mike Pence (R-Ind.), a former full-time radio host, forecast a big majority and took a shot at the Senate, saying: “This House will say what some in the other body are not saying, that we believe in freedom on the airwaves. We reject the doctrines of the past that would have this federal government manage political speech on the public airwaves.”

Republican Study Committee Chairman Jeb Hensarling (R-Texas) and Rep. Jeff Flake (R-Ariz.) also sponsored the legislation.

Conservatives fear that forcing stations to make equal time for liberal talk radio would slash profits and pressure radio executives to scale back on conservative programming to avoid escalating costs and interference from government regulators. Opponents of the Fairness Doctrine argue that radio stations would suffer financially if forced to air liberal as well as conservative programs because liberal talk radio has not proven popular or profitable. For example, Air America, liberals’ answer to “The Rush Limbaugh Show” and Michael Medved, filed for bankruptcy in October.

House Minority Leader John Boehner (R-Ohio) said Thursday that listeners should be able to decide if they want to hear different political arguments.

“The best way is to let the judgment of the American people decide, and they can decide with their finger,” Boehner said.
“[People] can turn it off or they can turn it on. They can go to their computer and read it on the Internet.”

Flake added: “Rather than having the government regulate what people can say, we should let the market decide what people want to hear. That’s precisely why the Fairness Doctrine was abandoned, and that’s why it ought not to be revived.”

At the end of Thursday’s debate, Democratic House Appropriations Committee Chairman David Obey (Wis.) agreed with Republicans that the government should not regulate conservative radio hosts such as Limbaugh and Hannity.

“We ought to let right-wing talk radio go on as they do now,” he said. “Rush and Sean are just about as important in the scheme of things as Paris Hilton, and I would hate to see them gain an ounce of credibility by being forced by a government agency or anybody else to moderate their views enough that they might become modestly influential or respected.”

3.
June 28, 2007
Justices Reject Diversity Plans in Two Districts
By LINDA GREENHOUSE

The New York Times

WASHINGTON, June 28 — With competing blocs of justices claiming the mantle of Brown v. Board of Education, a bitterly divided Supreme Court declared today that public school systems cannot seek to achieve or maintain integration through measures that take explicit account of a student’s race.

Voting 5 to 4, the court, in an opinion by Chief Justice John G. Roberts Jr., invalidated programs in Seattle and metropolitan Louisville, Ky., that sought to maintain school-by-school diversity by limiting transfers on the basis of race or using race as a “tiebreaker” for admission to particular schools.

Both programs had been upheld by lower federal courts and were similar to plans in place in hundreds of school districts around the country. Chief Justice Roberts said such programs were “directed only to racial balance, pure and simple,” a goal he said was forbidden by the Constitution’s guarantee of equal protection.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he said. His side of the debate, the chief justice said, was “more faithful to the heritage of Brown,” the landmark 1954 decision that declared school segregation unconstitutional. “When it comes to using race to assign children to schools, history will be heard,” he said.

The decision came on the final day of the court’s 2006-7 term, which showed an energized conservative majority in control across many areas of the court’s jurisprudence.

Chief Justice Roberts’s control was not quite complete, however. While Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. joined his opinion on the schools case in full, the fifth member of the majority, Justice Anthony M. Kennedy, did not. Justice Kennedy agreed that the two programs were unconstitutional. But he was highly critical of what he described as the chief justice’s “all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account.”

In a separate opinion that could shape the practical implications of the decision and provide school districts with guidelines for how to create systems that can pass muster with the court, Justice Kennedy said achieving racial diversity, “avoiding racial isolation” and addressing “the problem of de facto resegregation in schooling” were “compelling interests” that a school district could constitutionally pursue as long as it did so through programs that were sufficiently “narrowly tailored.”

The four justices were “too dismissive” of the validity of these goals, Justice Kennedy said, adding that it was “profoundly mistaken” to read the Constitution as requiring “that state and local school authorities must accept the status quo of racial isolation in schools.”

As a matter of constitutional doctrine and practical impact, Justice Kennedy’s opinion thus placed a significant limitation on the full reach of the other four justices’ embrace of a “colorblind Constitution” under which all racially conscious government action, no matter how benign or invidious its goal, is equally suspect.

How important a limitation Justice Kennedy’s opinion proves to be may become clear only with time, as school districts devise and defend plans that appear to meet his test.

Among the measures that Justice Kennedy said would be acceptable were the drawing of school attendance zones, “strategic site selection of new schools,” and directing resources to special programs. These would be permissible even if adopted with a consciousness of racial demographics, Justice Kennedy said, because in avoiding the labeling and sorting of individual children by race they would satisfy the “narrow tailoring” required to meet the equal protection demands of the 14th Amendment.

Justice Stephen G. Breyer, who wrote the principal dissenting opinion, was dismissive of Justice Kennedy’s proposed alternatives and asserted that the court was taking a sharp and seriously mistaken turn.

Speaking from the bench for more than 20 minutes, Justice Breyer made his points to a courtroom audience that had never seen the coolly analytical justice express himself with such emotion. His most pointed words, in fact, appeared nowhere in his 77-page opinion.

“It is not often in the law that so few have so quickly changed so much,” Justice Breyer said.

In his written opinion, Justice Breyer said the decision was a “radical” step away from settled law and would strip local communities of the tools they need, and have used for many years, to prevent resegregation of their public schools. Predicting that the ruling would “substitute for present calm a disruptive round of race-related litigation,” he said, “This is a decision that the court and the nation will come to regret.”

Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg signed Justice Breyer’s opinion. Justice Stevens wrote a dissenting opinion of his own, as pointed as it was brief.

He said the chief justice’s invocation of Brown v. Board of Education was “a cruel irony” when the opinion in fact “rewrites the history of one of this court’s most important decisions” by ignoring the context in which it was issued and the Supreme Court’s subsequent understanding of it to permit voluntary programs of the sort that were now invalidated.

“It is my firm conviction that no member of the court that I joined in 1975 would have agreed with today’s decision,” Justice Stevens said. He did not mention, nor did he need to, that one of the justices then was William H. Rehnquist, later the chief justice, for whom Chief Justice Roberts once worked as a law clerk.

Justice Clarence Thomas was equally pointed and equally personal in an opinion concurring with the majority.

“If our history has taught us anything,” Justice Thomas said, “it has taught us to beware of elites bearing racial theories.” Then he added in a footnote, “Justice Breyer’s good intentions, which I do not doubt, have the shelf life of Justice Breyer’s tenure.”

The justices had been wrestling for over a year with the two cases. It was in January 2006 that parents who objected to the Louisville and Seattle programs filed their Supreme Court appeals from the lower court decisions that had upheld the programs.

The Louisville case was Meredith v. Jefferson County Board of Education, No. 05-915, filed by the mother of a student who was denied a transfer to his chosen kindergarten class because the school he wanted to leave needed to keep its white students to stay within the program’s racial guidelines.

The Seattle case, Parents Involved in Community Schools v. Seattle School District No. 1, No. 05-908, was filed by a group of parents who had formed a nonprofit corporation to fight the city’s high school assignment plan.

Because a single Supreme Court opinion resolved both cases, the decision carries only the name of the Seattle case, which had the lower docket number.

The appeals provoked a long internal struggle over how the court should respond. Months earlier, when Justice Sandra Day O’Connor was still on the court, the justices had denied review in an appeal challenging a similar program in Massachusetts. With no disagreement among the federal appellate circuits on the validity of such programs, the new appeals did not meet the criterion the court ordinarily uses to decide which cases to hear. It was June of last year before the court, reconfigured by the additions of Chief Justice Roberts and Justice Alito, announced, over the unrecorded but vigorous objection of the liberal justices, that it would hear both appeals.

By the time the court ruled on Thursday, there was little suspense over what the outcome would be. Not only the act of accepting the appeals, but also the tenor of the argument on Dec. 4, gave clear indications that the justices were on course to strike down both plans.

The cases were by far the oldest on the docket by the time they were decided; the other decisions the court announced on Thursday were in cases that were argued in March and April. What consumed the court during the seven months the cases were under consideration, it appears likely, was an effort by each side to edge Justice Kennedy closer to its point of view.

While it is hardly uncommon to find Justice Kennedy in the middle of the court, his position there this time carried a special resonance. He holds the seat once occupied by Justice Lewis F. Powell Jr. who, 29 years ago to the day, announced his separate opinion in the Bakke case. That solitary opinion, rejecting quotas but accepting diversity as a rationale for affirmative action in university admissions, defined the law for the next 25 years, until the decision was refined and to some degree strengthened in the University of Michigan Law School decision.

Justice Kennedy was a dissenter from that 2003 decision. But, surprisingly, he cited it on Thursday, invoking it to rebut the argument that the Constitution must be always be, regardless of context or circumstance, colorblind.