The Fight For Fair Pay Continues

Last month, the Lilly Ledbetter Fair Pay Act fell three votes short of overcoming a Republican filibuster in the Senate. But supporters of this crucial piece of civil rights legislation were undeterred by this temporary setback, and Senate Majority Leader Harry Reid (D-NV) has promised to schedule another floor vote on the bill as soon as we can rustle up the three votes necessary to get an up-or-down vote. To that end, we’ve partnered with our friends at CREDO Mobile to schedule constituent meetings with swing senators and their staff during the week of Memorial Day.

So, if you live in Alaska, Florida, Iowa, New Mexico, Ohio, Virginia, Texas, or Nebraska, click here to sign up, and tell your senator to stand up for the civil rights of all Americans.

Read more about the campaign at CREDO Mobile’s blog, watch our film featuring Lilly Ledbetter, or find out how your senators voted on the legislation, which would restore civil rights protections eviscerated by the Roberts Court last year.

Daily Dose

• Picturing the next DOJ [LegalTimes]
• Editorial: Torture’s Blowback [WP]
• “Who you Calling Activist?: California’s gay-marriage decision reflects the difference between judicial activism and, um, judging” [Slate]

Actor Pushes Back on Preemption Doctrine

Last year, actor Dennis Quaid’s newborn twins almost died when they received 1,000 times the correct dose of a blood thinner due to a labeling error. Yesterday, Quaid was on Capitol Hill testifying before Congress about the danger that the misuse of preemption poses to public safety. Preemption is the legal doctrine stating that federal law overrules, or preempts, state law when there is a conflict between the two. It is of particular importance in the areas of consumer health and safety.

Movement conservatives have latched on to the preemption doctrine, and have spent years fighting to shield big business from legitimate lawsuits, claiming that our nation is plagued by frivolous claims. President Bush even mentioned the issue in one of his State of the Union addresses – his famed, “too many OB-GYNs aren’t able to practice their love with women all across this country” gaffe.

The truth is that for millions of Americans who have been hurt by careless physicians or profit-driven drug manufacturers, the courts are their only avenue to seek redress. Conservatives, however, are alarmingly close to achieving their goal and locking the doors of justice to some of our nation’s most vulnerable citizens.

On February 20th, the Supreme Court released its controversial decision in Riegel v. Medtronic, which stated that if the Food and Drug Administration (FDA) approves a medical device that later proves to be harmful, injured people cannot sue the manufacturer under applicable state laws, because those laws are “preempted” by the agency’s prior approval of that device. And in April, the New York Times wrote an article outlining just how close conservatives are to embedding this doctrine into our laws.

The Supreme Court will also hear a case in its next term regarding similar circumstances surrounding a drug manufacturer. In Wyeth v. Levine, the drug manufacturer Wyeth is claiming that it cannot be sued for mislabeling its drug Phenergan – despite the fact that the drug’s mislabeling directly resulted in the amputation of Ms. Levine’s arm – because the drug had been approved for use by the FDA.

Congress is currently considering legislation to fix the Medtronic decision, called the Medical Device Safety Act of 2008. Alliance for Justice has sent letters of support to both the House and Senate urging members to pass this legislation. As Dennis Quaid said before Congress yesterday, “The courts are often the only path for families that are harmed by the drug companies' negligence.”

Daily Dose

• Clement stepping down as Solicitor General [WP, LATimes]

Daily Dose

• Rep. Conyers has no interest in being Rove's pen pal [TPMMuckraker]
• Editorial: Where Isn't Karl Rove Talking These Days? [NYT]

Kangaroo Court Will Come to Order

The Department of Defense announced yesterday that it has officially charged five Guantanamo detainees for participating in the September 11th terrorist attacks. They also dropped charges that were pending for a sixth alleged conspirator, Mohammed al Qahtani. So soon? Most of these prisoners have been held by the government for over five years! There’s nothing like a speedy trial, wouldn't you say?

According to the Center for Constitutional Rights, a group that participated in Mohammed al Qahtani’s defense, the government dropped its case against Mr. Qahtani because every statement he had made during interrogations had been a result of torture – or at least the threat of torture. Luckily for the government, it was able to gather some evidence against the other five suspects without relying entirely on the Bush administration’s “enhanced interrogation” techniques, allowing the sham tribunals to move forward in those cases.

A press release from the ACLU, which along with National Association of Criminal Defense Lawyers provides legal counsel to some of the Guantanamo detainees, reports that several lawyers have faced serious government roadblocks to their representation of detainees. According to the release, two ACLU lawyers who had received security clearance four and a half years ago to defend two other detainees are still waiting to receive clearance to represent Khalid Sheikh Mohammed, one of the five men officially charged this week. They applied for this latest round of clearance in February.

As Alliance for Justice President Nan Aron has said, “The ability of lawyers to confer with their clients and advocate for justice for those clients is a deeply imbedded principle of American democracy. Arbitrary restrictions concerning the number of times and the ways that lawyers may confer with their clients in Guantanamo…would threaten competent representation without at all advancing national security. The principles of freedom, due process and justice are too critical to our national character to be abandoned in any manner.”

Any day now, the Supreme Court is expected to release its decision in Boumedine v. Bush. We hope that the Court will put an end to the kangaroo courts set up by the Bush administration to determine who can be held indefinitely as enemy combatants. If not, prisoners like Mr. Qahtani, who will not be prosecuted because of a lack of evidence, can still be held at Guantanamo for as long as the United States government sees fit.

The principle of habeas corpus and access of the accused to our courts are central to our Constitution and democracy. Any suspension of these rights is an affront, not only to the law, but to our values as a nation. To learn more about our fight to restore habeas corpus, visit our website: http://www.defendhabeas.org/.

Caution: Courts May Slant Rightward!

Conservative presidents have left a lasting legacy on the courts. Well, yes. We've been saying that for some time, and now USA Today and influential legal conservatives agree. Yesterday, USA Today examined the effect that the court-packing policies initiated by Ronald Reagan have had on the judiciary, particularly at the circuit court level. And today, US News & World Report discussed a study by Seventh Circuit Appeals Court Judge Richard Posner and University of Chicago Law Professor William Landes which attempts to classify the political ideology of Supreme Court justices over the past 70 years.

Joan Biskupic’s USA Today piece points to the troubling successes conservative justices have had over the past two decades in advancing their agenda, without regard for precedent.

They became the first judges in more than a half-century to say the Second Amendment protects an individual's right to own guns. They took the lead in ruling against affirmative action and other race-conscious policies. And they upheld bans on an abortion procedure called “partial birth” before it reached the Supreme Court.

Judge Posner and Professor Landes’ study also paints a troubling picture of the current make-up of the federal bench. While the study’s results are not particularly surprising, its implications are quite disheartening. Five of the ten most conservative Supreme Court justices over the last 70 years are currently serving on the Roberts Court, including four of the top five. Alternatively, only one of the ten most liberal justices – Ruth Bader Ginsburg – remains on the bench.

Beyond the obvious implications of this study, US News & World Report explains that there is an even more disturbing trend uncovered by the Judge Posner and Professor Landes.

The authors were surprised to find a dramatic pooling effect over the years every time a conservative justice joined the court. “The larger the fraction of justices appointed by Republican presidents,” they write, “the more conservatively each Justice [votes].”

The disproportionate power conservative judges wield in our courts is precisely why Alliance for Justice fights as hard as it does to preserve an independent judiciary. It is also why we have called on the Senate to halt confirmation proceedings for President Bush’s remaining circuit court nominees. With six months left until the election, we can only hope that the next president will respect the historical role of the judiciary in enforcing our constitutional rights and protections. To learn more about this issue, check out our website at http://www.afj.org/connect-with-the-issues/independent-courts-fair-judges.html.