Yesterday, the Justice Department’s Inspector General finally released the results of the investigation surrounding the reportedly politically-motivated firings of US attorneys in 2006. The 392-page report concluded that “partisan considerations were an important factor in the removal of several of the U.S. attorneys.” No big surprise there, but the report went on to note that former Attorney General Alberto Gonzales “abdicated [his] responsibility to safeguard the integrity and independence of the department.” Not exactly a scathing indictment, but we’ll take it.
Of course, the report was only partially complete because the president and his advisors refused not only to cooperate with the congressional investigation, but the Justice Department’s as well. Apparently Attorney General Michael Mukasey felt so strongly that the president and his advisors were protected by executive privilege (despite a federal judge’s contradictory statements) that he didn’t even deem it necessary that Karl Rove or Harriet Miers speak to his own investigators.
Perhaps the only good news coming out of yesterday’s report is that Mukasey has assigned a special prosecutor to determine whether any criminal charges should be brought. Of course, we aren’t holding our breath. He has consistently said that criminal charges are unlikely, even before he saw the results of yesterday’s report. Congress confirmed Mr. Mukasey to usher in a new era for the department, one where respect for the rule of law was central to its mission. So far, it doesn't seem like he's lived up to those expectations.
Tuesday, September 30, 2008
Symposium Round Up
Unable to attend AFJ’s symposium last week? Not to worry, we had staff live blog and film the panel discussions so that people could catch them later!
Our exciting half-day symposium entitled “Our Rights, Our Courts, Our Future” consisted of three panel discussions regarding consumer protections, executive privilege and the repercussions of the Bush administration’s judicial selection. Speakers included experts like Linda Greenhouse, Rep. Keith Ellison (D-MN), Diana Levine, Dahlia Lithwick and Jeffrey Rosen, among others, who provided fascinating insights.
The live-blogs kept by our staff are available on our Justice Watch blog here:
Access Denied? Our Courts and Consumer Protections
Diana Levine, whose case will be argued in front of the Supreme Court this term, shared with us the real life repercussions of a pro-business judiciary.
Executive Privilege: Abuse of Presidential Power in the Bush Administration
Congressman Ellison honored us with his presence on this exciting panel and gave his own take on the importance of oversight.
Repercussions of Judicial Selection in the Bush Administration
Probably the most lasting legacy of President Bush’s two terms, former New York Times Supreme Court reporter, Linda Greenhouse provided her observations on how the courts have changed under the Bush administration.
Video footage of our panel discussions is available on our website here.
Thursday, September 25, 2008
Symposium Live Blog: Judicial Selection Panel
12:00: The grilled chicken salad--no arugula--has been served and we're getting ready to start the panel examining the Bush administration's take-no-prisoners approach to judicial selection.
12:06: We spoke too soon regarding the service of the salad. We should be under way in just a few more minutes.
12:14: The panel officially begins. Nan Aron notes that two themes seemed to develop over the course of the morning. 1: The critical role the courts play in our lives and 2: What the human costs are when a court system is not responsive to litigation brought to redress problems. This panel will more closely examine the role judicial appointments play in this broader question and where we go from here.
12:17: Olatunde Johnson, our moderator has taken the podium. We're blushing from her praise of AFJ, but we'll err on the side of modesty and not go too into detail. Nevertheless, thanks for the kind words Olatunde. She notes that fundamental questions of access to justice happen at all levels. She jokes that when she clerked for Justice Stevens, they felt that the job of SCOTUS was to review the Ninth Circuit, chuckles abound. She then explains that the court was taking fewer and fewer cases because of an increasing ideologically unanimity on the circuits due to the success of courtpacking--no more circuit splits that need to be resolved by the Supreme Court.
12:21: More from Olatunde Johnson. She loves teaching her students at Columbia about access to justice since it is the core of our legal system. She then poses the question of how we can address judicial selection in the next administration. Bush made it quite clear from the get-go that the courts were very important to him and that he put forward nominees that made good on his ideological promises. We're now being introduced to this session's panelists. Both have experience covering the courts for the media and a popular audience, so they can address the issue on both the academic level, but on a more mainstream plane, as well. We are joined by Linda Greenhouse, formerly of the New York Times and Steven Wermiel of Washington College of Law.
12:25: Question 1: How have the Bush nominees shaped the courts, and has there been a change in the tenor of the courts?
Linda Greenhouse is the first panelist at bat. She notes that the Ninth Circuit is the only one that is majority-Democratic appointed and by a very slim major. 10 are majority Republican-appointed and 1 is split. This is critical in how cases come up to Supreme Court review because there are far fewer circuit splits, just as Prof. Johnson observed. Also, the SG's office isn't filing as many petitions because the government is having great success in most circuits, so there is no need to file for review by SCOTUS.
12:29: Observations from an article on assessing the Rehnquist Court that now-Chief Justice Roberts clerked for. With the Rehnquist Court, when there is a conflict between state and citizen, state will win. Conflict between state and federal, state will win, question of whether a person can get access to the court, the decision will be no access.
12:31: The Seattle school case is really the marker of the Roberts Court for Linda Greenhouse. There was no circuit conflict, the plans had come about through democratic means at the local level. The Court gratuitously took the case without a circuit conflict. What she thinks is so interesting and indicative CJ Roberts' plurality opinion: any government counting by race is unconstitutional and there is no predicate for any school district to fix. He lost Justice Kennedy. Before, Kennedy had never voted to uphold any counting by race, but the Roberts opinion went too far even for Justice Kennedy. The Chief Justice was so unwilling to move off his agenda-driven holding to get the gettable Justice Kennedy to speak as a unified court is indicative of what CJ Roberts really wants to do.
12:35: Linda Greenhouse on the al-Marri case. The 4th Circuit shows how split the circuits are internally with the two different approaches, approaches that seem to be demarcated along appointment lines. She also sees the 8th Circuit's decision on the SD informed consent law as indicative as the change. The 8th is one of the most conservatively dominated of any. Doctors argued it was compelled government speech and got an injunction. 6 of the 7 judges who overturned the injunction on the 8th were W. Bush appointees saying that the law was okay because of their views on when life begins, and not based on the law.
12:37: Prof. Wermeil also wants to discuss the Seattle/Louisville school cases. His particular point of interest that will forever define CJ Roberts: the end of his opinion is so anti-historical it is astonishing. The CJ quotes arguments from the NAACP from Brown v. Board, cavalierly saying that the current programs are no different from the decades of racial animus and bigotry that marked the segregation era, an astonishingly anti-historical approach. The professor says that more than anything else made him sorry he ever thought that he took a "Well, CJ Roberts is probably the best we're going to do."
12:43: George W. Bush's legacy--a bench that is less diverse by metrics of either race or gender than it was when he took office. We'll be giving you updated statistics when we release our judicial selection report next week.
12:47: Hallmark of the Bush courts is a hostility to standing--the ability of people being able to have their grievances heard, particularly in environmental, civil rights and employment cases. Another hallmark is to look at what happenes when lower courts go to en banc review--the full appeals court redecides the case after a three judge panel has decided the case. There is a group of judges that disagree with the panel and couldn't get their colleagues to hear the case, so there are more dissents from the process itself because they are not satisfied with the outcome. The sole purpose of these dissents is to move the Supreme Court to action--it's subtle and technical, but it highlights what is happening.
12:51: Linda Greenhouse: There has been a shift--it is now de rigeur for conservative appointees to be incredibly ideological.
12:54: Question two from Olatunde Johnson: Where does the selection and appointment process go from here? CJ Roberts dodged so many questions in order to avoid giving his views. He was asked about Brown, but gave vague answers. And, of course, we now know exactly his view. How can we improve the process to get more about judges' views?
12:55: Linda Greenhouse: It is important not to forget the Senate's co-equal role in the process. Things go off the rails when a president decides to press his agenda and the boundaries with his nominees. Robert Bork is an example--some say this shows how the process of confirmation is broken, but it really started with President Reagan. He was told "anybody by Bork" and then defiantly nominated Robert Bork, the ur-conservative ideologue. So, again, this starts with the president.
12:58: Professor Wermeil doesn't have clear ideas how to fix the process, but there is a need to get real answers. Thomas said he'd never thought or talked about abortion in his hearings, then nine months later wrote that Roe should be overturned. There is focus on CJ's Roberts' comment about being an umpire, but that doesn't mean anything. When was the last time you left the stadium thinking "Gee, wasn't that a well-umpired game?" It tells us very little.
1:02: There are historically political appointments, but they were more electoral than judicial. Wermeil thinks things changed from electoral to a question of the direction of the court--he notes that our moderator from the last panel, his colleague at AU Herman Schwartz, would disagree with this characterization, and the process has long been about the direction of the courts. Regardless, senators need to worry less about how they appear and more about getting real answers from nominees.
1:03: Linda Greenhouse: The Fifth Circuit is earthmoving. Bush put up very young lawyers with no record so the Senate couldn't get a handle on them. We shouldn't be buying a pig in a poke, but in many cases that's what we get because nominees dodge around views. The Souter hearings were fascinating. He seemed to be a blank slate, but he was forthcoming in his hearings. By the end of the hearings, many saw the David Souter that Justice Souter has become.
1:06: What is the role of the press in getting the word out to the public on judges, legal decisions and the courts? Is there too much focus on process--the fights--than there is on substance? How will this play out?
1:08: Professor Wermeil is disapponted that there isn't more discussion about the courts as an electoral issue because it is an important conversation to have. He notes a comment from conservative litigator Jay Sekulow--the legacy of the president is judges. In 2007 he said judges would play a big role in the election, and that has not come to pass. The only time there has been significant focus were back-to-back interviews at Saddleback Church when they were both asked. Regardless of where you are on the issue, there really needs to be more focus. He hopes it will come up in debates and that legal publications at the very list will send questionnaires to the candidate.
1:13: Linda Greenhouse on journalism. There has been something of a maturation recently--the journalistic duty is not to just quote both sides, but to give the audience some sense of what is happening. So, in the context of nominations, reporting could take the tack of "nominee refused to answer the question, but the record indicates this." Vital to take confirmation hearings seriously and hold nominees to account. Some Washington press have gotten jaded as to confirmation hearings, but these hearings can become an opportunity as a window into a nominee depending on how the coverage is framed. Get to the issues, not just the process.
1:16: Wermeil on a good trend: Senate staffs are looking at the first day of hearings in order to really develop meaningful follow-up questions, which was no always the case. When Wermeil covered Rehnquist's CJ confirmation, a witness was testifying about being a poll watcher in 1964 in Arizona. Senators kept asking the witness "Did you go to the polling place? Did you talk to the people?" Nobody got to the question "Was it Rehnquist?" until a note was passed after a break. This has improved significantly.
1:18: Questions begin. It seems like the sides are playing by different rules. One is following Marquess of Queensbury, the other is looking to Ultimate Fighting. (We here are Justice Watch are ladies and gentleman, if that tells you anything. ) So, how do we move the discourse/get on the same page?
1:20: Answer from Greenhouse--you need a core of committed electeds who are willing to take a real stand. We would add, it is vital that our elected officials hear from all of us in order to help drive this commitment.
1:22: Wermeil on temperment. This extends beyond "bright, thoughtful, honest," to figuring out whether or not an individual is open-minded and will read the briefs and made decisions based on the arguments, and not coming to the question with a mind already made-up.
1:24: Another question. What about the argument that conservative movement arose in response to so-called liberal overreach, and is a product of balance and not pushing an agenda per se?
Greenhouse says that certainly the rise of the conservative legal movement was the result of decisions that they didn't like, but the concerted effort starting with the Reagan years to find the law professors and inculcating the young is a new model and they've been very successful. Wermeil says that yes, they are reacting to the Warren Court, but no president was responsible for the way that court developed, as the most progressive in modern history. The nomination process in terms of the role of president didn't develop it, but the justices and the times, but the conservative movement is driving from a nomination process.
1:29: Olatunde Johnson wraps up with another exhortation to make sure to keep thinking about and talking about judges.
1:30: Nan Aron closes the panel with a thank you, and the observation that the courts of appeals are out of whack, and that AFJ will do its utmost to reassert balance back to the courts so they once again become responsive to ordinary Americans. She tells us the story of winning her first argument. Nan was in front of a Republican-appointed judge. She rehearsed, rewrote and practiced her arguments to certify a class action against Hewlett-Packard and the judge heard the case with an open mind and she won. These days, lawyers can know how their case will come out before they make arguments or write a brief just based on who is on the panel. We need to work together to make changes.
Thank you all for reading this, video will be available soon.
12:06: We spoke too soon regarding the service of the salad. We should be under way in just a few more minutes.
12:14: The panel officially begins. Nan Aron notes that two themes seemed to develop over the course of the morning. 1: The critical role the courts play in our lives and 2: What the human costs are when a court system is not responsive to litigation brought to redress problems. This panel will more closely examine the role judicial appointments play in this broader question and where we go from here.
12:17: Olatunde Johnson, our moderator has taken the podium. We're blushing from her praise of AFJ, but we'll err on the side of modesty and not go too into detail. Nevertheless, thanks for the kind words Olatunde. She notes that fundamental questions of access to justice happen at all levels. She jokes that when she clerked for Justice Stevens, they felt that the job of SCOTUS was to review the Ninth Circuit, chuckles abound. She then explains that the court was taking fewer and fewer cases because of an increasing ideologically unanimity on the circuits due to the success of courtpacking--no more circuit splits that need to be resolved by the Supreme Court.
12:21: More from Olatunde Johnson. She loves teaching her students at Columbia about access to justice since it is the core of our legal system. She then poses the question of how we can address judicial selection in the next administration. Bush made it quite clear from the get-go that the courts were very important to him and that he put forward nominees that made good on his ideological promises. We're now being introduced to this session's panelists. Both have experience covering the courts for the media and a popular audience, so they can address the issue on both the academic level, but on a more mainstream plane, as well. We are joined by Linda Greenhouse, formerly of the New York Times and Steven Wermiel of Washington College of Law.
12:25: Question 1: How have the Bush nominees shaped the courts, and has there been a change in the tenor of the courts?
Linda Greenhouse is the first panelist at bat. She notes that the Ninth Circuit is the only one that is majority-Democratic appointed and by a very slim major. 10 are majority Republican-appointed and 1 is split. This is critical in how cases come up to Supreme Court review because there are far fewer circuit splits, just as Prof. Johnson observed. Also, the SG's office isn't filing as many petitions because the government is having great success in most circuits, so there is no need to file for review by SCOTUS.
12:29: Observations from an article on assessing the Rehnquist Court that now-Chief Justice Roberts clerked for. With the Rehnquist Court, when there is a conflict between state and citizen, state will win. Conflict between state and federal, state will win, question of whether a person can get access to the court, the decision will be no access.
12:31: The Seattle school case is really the marker of the Roberts Court for Linda Greenhouse. There was no circuit conflict, the plans had come about through democratic means at the local level. The Court gratuitously took the case without a circuit conflict. What she thinks is so interesting and indicative CJ Roberts' plurality opinion: any government counting by race is unconstitutional and there is no predicate for any school district to fix. He lost Justice Kennedy. Before, Kennedy had never voted to uphold any counting by race, but the Roberts opinion went too far even for Justice Kennedy. The Chief Justice was so unwilling to move off his agenda-driven holding to get the gettable Justice Kennedy to speak as a unified court is indicative of what CJ Roberts really wants to do.
12:35: Linda Greenhouse on the al-Marri case. The 4th Circuit shows how split the circuits are internally with the two different approaches, approaches that seem to be demarcated along appointment lines. She also sees the 8th Circuit's decision on the SD informed consent law as indicative as the change. The 8th is one of the most conservatively dominated of any. Doctors argued it was compelled government speech and got an injunction. 6 of the 7 judges who overturned the injunction on the 8th were W. Bush appointees saying that the law was okay because of their views on when life begins, and not based on the law.
12:37: Prof. Wermeil also wants to discuss the Seattle/Louisville school cases. His particular point of interest that will forever define CJ Roberts: the end of his opinion is so anti-historical it is astonishing. The CJ quotes arguments from the NAACP from Brown v. Board, cavalierly saying that the current programs are no different from the decades of racial animus and bigotry that marked the segregation era, an astonishingly anti-historical approach. The professor says that more than anything else made him sorry he ever thought that he took a "Well, CJ Roberts is probably the best we're going to do."
12:43: George W. Bush's legacy--a bench that is less diverse by metrics of either race or gender than it was when he took office. We'll be giving you updated statistics when we release our judicial selection report next week.
12:47: Hallmark of the Bush courts is a hostility to standing--the ability of people being able to have their grievances heard, particularly in environmental, civil rights and employment cases. Another hallmark is to look at what happenes when lower courts go to en banc review--the full appeals court redecides the case after a three judge panel has decided the case. There is a group of judges that disagree with the panel and couldn't get their colleagues to hear the case, so there are more dissents from the process itself because they are not satisfied with the outcome. The sole purpose of these dissents is to move the Supreme Court to action--it's subtle and technical, but it highlights what is happening.
12:51: Linda Greenhouse: There has been a shift--it is now de rigeur for conservative appointees to be incredibly ideological.
12:54: Question two from Olatunde Johnson: Where does the selection and appointment process go from here? CJ Roberts dodged so many questions in order to avoid giving his views. He was asked about Brown, but gave vague answers. And, of course, we now know exactly his view. How can we improve the process to get more about judges' views?
12:55: Linda Greenhouse: It is important not to forget the Senate's co-equal role in the process. Things go off the rails when a president decides to press his agenda and the boundaries with his nominees. Robert Bork is an example--some say this shows how the process of confirmation is broken, but it really started with President Reagan. He was told "anybody by Bork" and then defiantly nominated Robert Bork, the ur-conservative ideologue. So, again, this starts with the president.
12:58: Professor Wermeil doesn't have clear ideas how to fix the process, but there is a need to get real answers. Thomas said he'd never thought or talked about abortion in his hearings, then nine months later wrote that Roe should be overturned. There is focus on CJ's Roberts' comment about being an umpire, but that doesn't mean anything. When was the last time you left the stadium thinking "Gee, wasn't that a well-umpired game?" It tells us very little.
1:02: There are historically political appointments, but they were more electoral than judicial. Wermeil thinks things changed from electoral to a question of the direction of the court--he notes that our moderator from the last panel, his colleague at AU Herman Schwartz, would disagree with this characterization, and the process has long been about the direction of the courts. Regardless, senators need to worry less about how they appear and more about getting real answers from nominees.
1:03: Linda Greenhouse: The Fifth Circuit is earthmoving. Bush put up very young lawyers with no record so the Senate couldn't get a handle on them. We shouldn't be buying a pig in a poke, but in many cases that's what we get because nominees dodge around views. The Souter hearings were fascinating. He seemed to be a blank slate, but he was forthcoming in his hearings. By the end of the hearings, many saw the David Souter that Justice Souter has become.
1:06: What is the role of the press in getting the word out to the public on judges, legal decisions and the courts? Is there too much focus on process--the fights--than there is on substance? How will this play out?
1:08: Professor Wermeil is disapponted that there isn't more discussion about the courts as an electoral issue because it is an important conversation to have. He notes a comment from conservative litigator Jay Sekulow--the legacy of the president is judges. In 2007 he said judges would play a big role in the election, and that has not come to pass. The only time there has been significant focus were back-to-back interviews at Saddleback Church when they were both asked. Regardless of where you are on the issue, there really needs to be more focus. He hopes it will come up in debates and that legal publications at the very list will send questionnaires to the candidate.
1:13: Linda Greenhouse on journalism. There has been something of a maturation recently--the journalistic duty is not to just quote both sides, but to give the audience some sense of what is happening. So, in the context of nominations, reporting could take the tack of "nominee refused to answer the question, but the record indicates this." Vital to take confirmation hearings seriously and hold nominees to account. Some Washington press have gotten jaded as to confirmation hearings, but these hearings can become an opportunity as a window into a nominee depending on how the coverage is framed. Get to the issues, not just the process.
1:16: Wermeil on a good trend: Senate staffs are looking at the first day of hearings in order to really develop meaningful follow-up questions, which was no always the case. When Wermeil covered Rehnquist's CJ confirmation, a witness was testifying about being a poll watcher in 1964 in Arizona. Senators kept asking the witness "Did you go to the polling place? Did you talk to the people?" Nobody got to the question "Was it Rehnquist?" until a note was passed after a break. This has improved significantly.
1:18: Questions begin. It seems like the sides are playing by different rules. One is following Marquess of Queensbury, the other is looking to Ultimate Fighting. (We here are Justice Watch are ladies and gentleman, if that tells you anything. ) So, how do we move the discourse/get on the same page?
1:20: Answer from Greenhouse--you need a core of committed electeds who are willing to take a real stand. We would add, it is vital that our elected officials hear from all of us in order to help drive this commitment.
1:22: Wermeil on temperment. This extends beyond "bright, thoughtful, honest," to figuring out whether or not an individual is open-minded and will read the briefs and made decisions based on the arguments, and not coming to the question with a mind already made-up.
1:24: Another question. What about the argument that conservative movement arose in response to so-called liberal overreach, and is a product of balance and not pushing an agenda per se?
Greenhouse says that certainly the rise of the conservative legal movement was the result of decisions that they didn't like, but the concerted effort starting with the Reagan years to find the law professors and inculcating the young is a new model and they've been very successful. Wermeil says that yes, they are reacting to the Warren Court, but no president was responsible for the way that court developed, as the most progressive in modern history. The nomination process in terms of the role of president didn't develop it, but the justices and the times, but the conservative movement is driving from a nomination process.
1:29: Olatunde Johnson wraps up with another exhortation to make sure to keep thinking about and talking about judges.
1:30: Nan Aron closes the panel with a thank you, and the observation that the courts of appeals are out of whack, and that AFJ will do its utmost to reassert balance back to the courts so they once again become responsive to ordinary Americans. She tells us the story of winning her first argument. Nan was in front of a Republican-appointed judge. She rehearsed, rewrote and practiced her arguments to certify a class action against Hewlett-Packard and the judge heard the case with an open mind and she won. These days, lawyers can know how their case will come out before they make arguments or write a brief just based on who is on the panel. We need to work together to make changes.
Thank you all for reading this, video will be available soon.
Symposium Live Blog: Executive Power Panel
10:29: We'll be getting started in just a few minutes.
10:31: Nan Aron kicks things off again. She observes that a lot has been written about executive power, and that our panelists will synthesize the key issues. We're also being introduced to moderator Herman Schwartz, a long-time advocate for civil liberties and law professor at Washington College of Law.
10:32: Prof. Schwartz says he's going to try to keep this complicated subject to his 60 second intro time, the executive power version of the complete works of Shakespeare in two hours. He observes that the Bush administration has taken commander-in-chief to be c-in-c of the American people, not just the military. He also notes that the bounds have been stretched beyond any previously recognized boundaries.
10:35: That 60 seconds has passed, but Prof. Schwartz has a number of important things to say. He observes that the administration stance on the bail-out--the administration's stance that they not be subject to any sort of legal or judicial review. As the professor observes, this pretty accurately sums up the administration's stance generally.
10:38: Dahlia Lithwick of Slate is the first panelist on the executive power panel to speak. She's discussing a poll that was released on Constitution Day. 2/3 of Americans opposed changing the balance of powers to strengthen the executive. She says it seems that 2/3 of Americans have understood what the administration's done, but that it isn't entirely clear that our leadership does. The argument that the administration has been offering is that they feel they can meddle with the boundaries of executive power because nobody cares, and we need to talk about the issue in a meaningful way--as part of the national discourse, not just confined to the many books published--in order to show that Americans really do care in order to put a stop to the power grabs.
10:42: Moving on to signing statements. Dahlia finds them intriguing vis-a-vis the administration. Symbolically, they are one of the most important things the Bush administration has done, but actively, they are more benign than other actions like extraordinary rendition. There are real consequences of signing statements, but symbolically they are an affront. Historically, the are "presidential throat clearing" before signing a bill. There wasn't a lot going on with the statements; they just served as a formality. That is, until the Reagan administration and its view that the statements can be used to move the law.
10:44: Since assuming office, Bush has used signing statements to alter 1100 laws, compared to the 600 over the previous 200 years. Bush's are far more troubling than priors, many of which are of a "thank you Elks" formality approach. Bush's are used to promote the unitary executive and the ultimate power of the executive branch.
10:46: Why do signing statements matter? The courts haven't really taken on the question of how binding a signing statement is. But, the statements act as directives to agencies, like the one used on the anti-torture bill, so ultimately formerly clear legal lines are muddied. A GAO study shows that agencies have disobeyed the law as the result of following directives from signing statements.
10:47: Signing statements also show us the MO of the administration: the president isn't bound by law and a refusal to explain what standards are for determining the boundaries on executive power. The history of waterboarding shows this MO laid out--secret memos, no transparency and no clarity. Our AG was explicitly asked about the legality of waterboarding, and he punted with "it depends on what the president thinks." This is the core worry of signing statements: when the exective branch aggregates power to itself, it's done secretly with no clarity and based on the decision of one person.
10:50 Congressman Ellison has begun to speak. He is talking right now about the huge bailout being discussed in Congress. He said Congress was told repeatedly that the economy is fine. Last Friday, Congress was told they needed to bailout the financial sector without asking questions. The first draft from the White House asked for $700 billion without any judicial review, and with all conflicts of interest waived automatically. The White House said they would resist bankruptcy protection for homeowners threatened with foreclosure. As Ellison sees it, this bailout started with Bear Stearns, then other brokerage houses. And here we are, last Friday, "give us $700 billion or else." This is another case of executive usurpation. He has never seen so many free-marketeers running to get government help.
10:55 There has been wage stagnation for the past 30 years. As a result, people do not consume based on savings, they consume based on debt. They go into their home equity to fund important purchases.
10:58 The right has begun to blame the progressive Community Reinvestment Act for the financial problems of today; but the real cause is financial deregulation and increasing use of debt. The abuse of executive power by the Bush administration has gone to new heights during this financial crisis.
11:00 We have seen massive abuses of executive authority. "Anyone who says that government should be shrunk to the size it can be drowned in the bathtub, should be drowned in a bathtub."
11:01 Agnieszka Fryszman has begun to speak about the roundup of suspected terrorists.
11:02 Supreme Court held that detainees at Gitmo had statutory right to test their detention by habeas corpus.
11:03 Under Bush administration's review, almost everyone at Guantanamo was found to be an "enemy combatant," without any opportunity to see or contest the evidence against them.
11:03 Ms. Fryszman located the charges against one of her clients on the internet, even though the Defense Department would not tell her. This client was seriously mistreated at Guantanamo, and there was no evidence that he was an enemy combatant.
11:07 Four years later, the Sup Ct rules that the CSRT process is not an adequate substitute for habeas. Months after that, no detainee has yet had a habeas hearing. Ms. Fryszman has concluded her presentation.
11:09 Congressman Ellison asks about a woman (Ms. Sadiki) who is a neurologist who was shot in the stomach while in US custody and is now being held incommunicado. Ms. Fryszman describes that lawyers representing detainees are generally prohibited from talking about their clients. She does not know much about this case, whose details are murky.
11:11 Ms. Fryszman reminds the audience that we are still operating secret detention sites around the world and that Guantanamo is being duplicated at other locations.
11:13 Ms. Lithwick is talking about the evolution of US interrogation policy. She talks about how this policy was literally developed based on Jack Bauer of FOX television's 24.
11:15 Moderator Herman Schwartz states that the Bush administration believes everything done before its tenure is meaningless, and that they can do whatever they want. This, he says, is a profoundly antidemocratic view.
11:17 Fryszman talks about how the handling of terrorists has been bungled because people were tortured. The actual terrorists in custody could have easily been convicted in our regular criminal court process, but it may now be too late for that.
11:19 She talks about Mr. Hamdan, who was finally tried and convicted of some charges by a military tribunal, and sentenced to some time in prison; but the government asserts that it can continue to detain him indefinitely beyond his sentence.
11:21 Ms. Lithwick says that undergirding much of the administration's policy is the goal of stripping the courts from reviewing executive action. She uses the "state secrets" doctrine as an example of a way to shield government misconduct. It took much too long for the courts to push back.
11:23 Prof. Schwartz blames the Sup Ct in part for avoiding constitutional clashes by deciding cases involving detainees on statutory grounds, but this has meant that the administration could continue to manipulate the law. He believes the court should have said right from the beginning that the administration was violating the Constitution. The Court failed to recognize that Congress was "completely supine," and would do whatever the administration wanted to perpetuate its detention.
11:27 Now questions are being taken from the audience. The first question is about the role f Congress in the expansion of executive power. Ms. Lithwick says that "supine" is exactly the right word, and that even Barack Obama abdicated on the issue of warrantless wiretapping under FISA. She believes Congress is fearful that it will be viewed as obstructionist and endangering national security.
11:30 The next question is about a "shadow government," and Ms. Lithwick talks about the secret legal memoranda justifying torture or warrantless wiretapping from the Office of Legal Counsel at the Justice Department.
11:33 The next question is from AFJ Vice President Marissa Brown -- what needs to be done in the next administration? Ms. Fryszman suggests closing Guantanamo, issuance of executive orders barring torture. Ms. Lithwick suggests looking at the responses from McCain and Obama to Charlie Savage on signing statements - and a publication by the Brennan Center on 12 steps to curtail executive overreaching.
11:36 The next question is about the pardon power, and whether Bush would use it to pardon key malfeasors.
11:38 The next audience question relates to what happened to McCain's views on torture. Ms. Lithwick comments that she does not understand how McCain's view have changed so much over the past year from opposing torture unequivocally to voting against legislation that would extend the Army Field Manual's interrogation limits to the CIA.
11:41 The next question is about government interference between the attorney-client relationships between detainees and their lawyers. Ms. Fryszman tells the story of a letter from her client describing his suffering - and discovering that the letter is 6 months old. When she manages to arrange to meet him 6 months later, she is told that he refuses to meet with her. In fact, he then meets her, tells her he did not refuse to meet with her, but in was being force-fed when she arrived so he could not meet with her. Also, you have to convince the client that you do not work for the CIA, etc.
11:45 Question from audience: has the Bush administration's advocacy for a unitary executive caused the courts to stand up to the executive? Ms. Lithwick thinks the passage of time has led the courts to be more skeptical of blanket executive secrecy and broad executive power. But Ms. Fryszman adds that in her experience with habeas cases the courts are still letting deadlines slip at the government's request.
11:49 The panel concludes.
10:31: Nan Aron kicks things off again. She observes that a lot has been written about executive power, and that our panelists will synthesize the key issues. We're also being introduced to moderator Herman Schwartz, a long-time advocate for civil liberties and law professor at Washington College of Law.
10:32: Prof. Schwartz says he's going to try to keep this complicated subject to his 60 second intro time, the executive power version of the complete works of Shakespeare in two hours. He observes that the Bush administration has taken commander-in-chief to be c-in-c of the American people, not just the military. He also notes that the bounds have been stretched beyond any previously recognized boundaries.
10:35: That 60 seconds has passed, but Prof. Schwartz has a number of important things to say. He observes that the administration stance on the bail-out--the administration's stance that they not be subject to any sort of legal or judicial review. As the professor observes, this pretty accurately sums up the administration's stance generally.
10:38: Dahlia Lithwick of Slate is the first panelist on the executive power panel to speak. She's discussing a poll that was released on Constitution Day. 2/3 of Americans opposed changing the balance of powers to strengthen the executive. She says it seems that 2/3 of Americans have understood what the administration's done, but that it isn't entirely clear that our leadership does. The argument that the administration has been offering is that they feel they can meddle with the boundaries of executive power because nobody cares, and we need to talk about the issue in a meaningful way--as part of the national discourse, not just confined to the many books published--in order to show that Americans really do care in order to put a stop to the power grabs.
10:42: Moving on to signing statements. Dahlia finds them intriguing vis-a-vis the administration. Symbolically, they are one of the most important things the Bush administration has done, but actively, they are more benign than other actions like extraordinary rendition. There are real consequences of signing statements, but symbolically they are an affront. Historically, the are "presidential throat clearing" before signing a bill. There wasn't a lot going on with the statements; they just served as a formality. That is, until the Reagan administration and its view that the statements can be used to move the law.
10:44: Since assuming office, Bush has used signing statements to alter 1100 laws, compared to the 600 over the previous 200 years. Bush's are far more troubling than priors, many of which are of a "thank you Elks" formality approach. Bush's are used to promote the unitary executive and the ultimate power of the executive branch.
10:46: Why do signing statements matter? The courts haven't really taken on the question of how binding a signing statement is. But, the statements act as directives to agencies, like the one used on the anti-torture bill, so ultimately formerly clear legal lines are muddied. A GAO study shows that agencies have disobeyed the law as the result of following directives from signing statements.
10:47: Signing statements also show us the MO of the administration: the president isn't bound by law and a refusal to explain what standards are for determining the boundaries on executive power. The history of waterboarding shows this MO laid out--secret memos, no transparency and no clarity. Our AG was explicitly asked about the legality of waterboarding, and he punted with "it depends on what the president thinks." This is the core worry of signing statements: when the exective branch aggregates power to itself, it's done secretly with no clarity and based on the decision of one person.
10:50 Congressman Ellison has begun to speak. He is talking right now about the huge bailout being discussed in Congress. He said Congress was told repeatedly that the economy is fine. Last Friday, Congress was told they needed to bailout the financial sector without asking questions. The first draft from the White House asked for $700 billion without any judicial review, and with all conflicts of interest waived automatically. The White House said they would resist bankruptcy protection for homeowners threatened with foreclosure. As Ellison sees it, this bailout started with Bear Stearns, then other brokerage houses. And here we are, last Friday, "give us $700 billion or else." This is another case of executive usurpation. He has never seen so many free-marketeers running to get government help.
10:55 There has been wage stagnation for the past 30 years. As a result, people do not consume based on savings, they consume based on debt. They go into their home equity to fund important purchases.
10:58 The right has begun to blame the progressive Community Reinvestment Act for the financial problems of today; but the real cause is financial deregulation and increasing use of debt. The abuse of executive power by the Bush administration has gone to new heights during this financial crisis.
11:00 We have seen massive abuses of executive authority. "Anyone who says that government should be shrunk to the size it can be drowned in the bathtub, should be drowned in a bathtub."
11:01 Agnieszka Fryszman has begun to speak about the roundup of suspected terrorists.
11:02 Supreme Court held that detainees at Gitmo had statutory right to test their detention by habeas corpus.
11:03 Under Bush administration's review, almost everyone at Guantanamo was found to be an "enemy combatant," without any opportunity to see or contest the evidence against them.
11:03 Ms. Fryszman located the charges against one of her clients on the internet, even though the Defense Department would not tell her. This client was seriously mistreated at Guantanamo, and there was no evidence that he was an enemy combatant.
11:07 Four years later, the Sup Ct rules that the CSRT process is not an adequate substitute for habeas. Months after that, no detainee has yet had a habeas hearing. Ms. Fryszman has concluded her presentation.
11:09 Congressman Ellison asks about a woman (Ms. Sadiki) who is a neurologist who was shot in the stomach while in US custody and is now being held incommunicado. Ms. Fryszman describes that lawyers representing detainees are generally prohibited from talking about their clients. She does not know much about this case, whose details are murky.
11:11 Ms. Fryszman reminds the audience that we are still operating secret detention sites around the world and that Guantanamo is being duplicated at other locations.
11:13 Ms. Lithwick is talking about the evolution of US interrogation policy. She talks about how this policy was literally developed based on Jack Bauer of FOX television's 24.
11:15 Moderator Herman Schwartz states that the Bush administration believes everything done before its tenure is meaningless, and that they can do whatever they want. This, he says, is a profoundly antidemocratic view.
11:17 Fryszman talks about how the handling of terrorists has been bungled because people were tortured. The actual terrorists in custody could have easily been convicted in our regular criminal court process, but it may now be too late for that.
11:19 She talks about Mr. Hamdan, who was finally tried and convicted of some charges by a military tribunal, and sentenced to some time in prison; but the government asserts that it can continue to detain him indefinitely beyond his sentence.
11:21 Ms. Lithwick says that undergirding much of the administration's policy is the goal of stripping the courts from reviewing executive action. She uses the "state secrets" doctrine as an example of a way to shield government misconduct. It took much too long for the courts to push back.
11:23 Prof. Schwartz blames the Sup Ct in part for avoiding constitutional clashes by deciding cases involving detainees on statutory grounds, but this has meant that the administration could continue to manipulate the law. He believes the court should have said right from the beginning that the administration was violating the Constitution. The Court failed to recognize that Congress was "completely supine," and would do whatever the administration wanted to perpetuate its detention.
11:27 Now questions are being taken from the audience. The first question is about the role f Congress in the expansion of executive power. Ms. Lithwick says that "supine" is exactly the right word, and that even Barack Obama abdicated on the issue of warrantless wiretapping under FISA. She believes Congress is fearful that it will be viewed as obstructionist and endangering national security.
11:30 The next question is about a "shadow government," and Ms. Lithwick talks about the secret legal memoranda justifying torture or warrantless wiretapping from the Office of Legal Counsel at the Justice Department.
11:33 The next question is from AFJ Vice President Marissa Brown -- what needs to be done in the next administration? Ms. Fryszman suggests closing Guantanamo, issuance of executive orders barring torture. Ms. Lithwick suggests looking at the responses from McCain and Obama to Charlie Savage on signing statements - and a publication by the Brennan Center on 12 steps to curtail executive overreaching.
11:36 The next question is about the pardon power, and whether Bush would use it to pardon key malfeasors.
11:38 The next audience question relates to what happened to McCain's views on torture. Ms. Lithwick comments that she does not understand how McCain's view have changed so much over the past year from opposing torture unequivocally to voting against legislation that would extend the Army Field Manual's interrogation limits to the CIA.
11:41 The next question is about government interference between the attorney-client relationships between detainees and their lawyers. Ms. Fryszman tells the story of a letter from her client describing his suffering - and discovering that the letter is 6 months old. When she manages to arrange to meet him 6 months later, she is told that he refuses to meet with her. In fact, he then meets her, tells her he did not refuse to meet with her, but in was being force-fed when she arrived so he could not meet with her. Also, you have to convince the client that you do not work for the CIA, etc.
11:45 Question from audience: has the Bush administration's advocacy for a unitary executive caused the courts to stand up to the executive? Ms. Lithwick thinks the passage of time has led the courts to be more skeptical of blanket executive secrecy and broad executive power. But Ms. Fryszman adds that in her experience with habeas cases the courts are still letting deadlines slip at the government's request.
11:49 The panel concludes.
Symposium Live Blog
Today, Alliance for Justice is hosting Our Rights, Our Courts, Our Future. The symposium features three panels, the first taking on consumer protections and the upcoming Wyeth v. Levine, one of the most anticipated cases of the Supreme Court’s upcoming term. Diana Levine will be on the panel to tell her story. The second addresses the question of executive power, featuring comments by Rep. Keith Ellison (D-MN). Finally, AFJ gets to its bread and butter: judicial selection. Former New York Times reporter Linda Greenhouse will anchor the discussion of the Bush administration’s courtpacking and where we can go from here. We’re sorry you can’t join us in person, but we’ll be liveblogging the entire event.
Panel 1: Access Denied? Our Courts and Consumer Protections
Moderator: Jeffrey Rosen, George Washington University Law School
Panelists: Diana Levine, Musician and Supreme Court litigant; Guy Molyneux, Hart Research and Daniel Goldberg, counsel to Senator Tom Harkin (D-IA)
After some technical difficulties (the tale of a mythical wireless connection), we are ready to roll.
The day opened with comments from Alliance for Justice President Nan Aron. She notes the drumbeat we keep up here—though there are many important issues that face the nation this year, we still need to have a national conversation about the importance of the federal courts and the law because of the impact on so many issues that we care about—the environment, the executive’s war powers, consumer protections and the list goes on.
And now we’re about to hear from moderator Jeffrey Rosen. He oberservs how fundamental accountability is to ensuring consumer protections and notes that Wyeth v. Levine is one of the most important cases of this term. More after the jump.
9:13 Prof. Rosen has completed his introduction of the panelists and now Diana Levine, the plaintiff seeking to prevent Wyeth Pharmaceuticals from depriving her of her day in court, is speaking. She is describing how the loss of her arm from Wyeth's anti-nausea drug Phenergan was catastrophic for her life and her career as a musician.
9:17 Ms. Levine has just begun to sing a song about how one of her wings was clipped, a song she wrote to begin the healing process for the loss of her hand.
9:19 Applause for Ms. Levine's song, and now she has begun to describe the expenses and financial burdens she suffered as a result of the complications from Phenergan.
9:20 She is now describing the week-long trial in a Vermont state court that resulted in a jury verdict in her favor, and the affirmance of that verdict by the Vermont Supreme Court.
9:21 She describes her case, now in the US Sup Ct, as not Wyeth v. Levine, but really Wyeth vs. We the People.
9:22 She wants to reassure children she works with that what happened to her could never happen to the them, but cannot.
9:23 She is quoting her father -- who helped put President Bush in the White House -- "We hld these truths to be self-evident: No one has the right to sacrifice Diana's hand to test the proposal that decisions made in Washington can relieve drug companies of the responsiblity they have for the products they put on the market."
9:25 As he introduces Daniel Goldberg, Prof. Rosen describes Diana's presentation as setting the gold standard for conveying the real world consequences of the law.
9:27 Mr. Goldberg, who works for Senator Tom Harkin (D-IA) has begun to speak, and apologizes that the Senator himself could not attend.
9:28 Goldberg: "the dry, technical cases" on statutory issues like preemption, private rights of action, and standing, often have the biggest impact on people's lives
9:29 He is now talking about the Lilly Ledbetter pay discrimination case, the Exxon oil spill case, and a case about securities fraud, all of which the Sup Ct decided against consumers in the past couple of years.
9:31 Goldberg is now addressing preemption, and the Bush administration's position that many federal statutes prevent states from giving greater protection for consumers. This position has been implemented in regulations involving areas like mattress flammability and railroad safety.
9:33 Goldberg is now describing the medical devices case from the Supreme Court, Riegel v. Medtronic.
9:34 Mr. Riegel had been injured by a defective heart catheter, but could not obtain any damages because of preemption.
9:35 Senator Harkin, joined by other Seantors, filed an amicus brief in the Sup Ct opposing preempton in Ms. Levine's case.
9:36 Goldberg is talking about how pro-business the Sup Ct is, but reminds us that with respect to statutes, Congress, not the court, has the final word.
9:37 Just this month, Congress did just that by correcting a misinterpretation of the Americans with Disabilities Act.
9:38 Mr. Goldberg is concluding by saying: "ultimately, elections matter," and that if we don't like the policies, we must choose better political leaders.
9:39 He has concluded and thanked Ms. Levine for her pursuit of justice.
9:40 Guy Molyneux, public opinion researcher, has now begun to speak about research his firm has done on preemption. They have done both focus groups and a national survey on the issue. By 64% to 31%, voters reject preemption of lawsuits from federally-approved products. The percentage increases if the injury from the product is described as serious. Opposition is throughout all regions of the country, both men and women, and all age groups, as well as all political leanings -- a somewhat smaller percentage, but still a majority, of Republicans, oppose lawsuit preemption as well.
9:45 Americans oppose preemption because they know they are at risk of being harmed by products. They believe that manufacturers "often cut corners" when it comes to safety to maximize the bottom line profit. Above all other products, Americans believe that prescription drug lawsuits should not be preempted.
9:47 Most voters have a positive view of product liability lawsuits, and 2/3 understand the limits of federal safety regulations. 86% believe that meeting federal safety standards still might mean risky products.
9:49 Americans believe that preemption of lawsuits will result in less corporate accountability.
9:50 Mr. Molyneux has finished his presentation, and Prof. Rosen is asking the panelists questions. He says to Ms. Levine that she may well lose her case, even by a large majority on the Court, and if so, asks what her message to the American people would be.
9:51 Ms. Levine says that if she does lose, it will be a blatantly pro-business decision, and the motivation to serve business interests will be exposed because the arguments in favor of preemption is so weak. She says "Justice is on our side... They took away my instruments, but they didn't take away my voice."
9:55 Prof. Rosen asks Mr. Molyneux whether we need a Democratic president to lead a broad legislative campaign to stop preemption of product liability cases. Molyneux thinks that a broad solution would require a broad coalition to bring pressure on political leaders, as well as strong leadership.
9:59 Prof. Rosen invites questions from the audience. Mr. Goldberg answers a question about cases involving fraud against the FDA by a drug manufacturer, and notes that the Sup Ct divided 4-4 about whether such a case was preempted by federal law.
10:03 Nan Aron, President of AFJ, asks how hard the US Chamber of Commerce lobbying against legislation that would restore the ability of people to sue over faulty medical devices. Mr. Goldberg says they are lobbying hard, but believes that compelling stories like Ms. Levine's can overcome the Chamber's efforts. He believes that we can get the Chamber to begin playing defense if we work together.
10:05 Prof. Rosen points out that it is an uphill battle to get a president of either party to appoint a populist who opposes corporate interests on the Supreme Court. Ms. Levine describes how she, her family and her community is doing all the work -- insult added to injury -- to try to compensate for Wyeth's failure to warn her of all the risks of the drug they manufacture.
10:08 Question from the audience: how can we talk about the issue of preemption in terms that are less technical? Is the issue one of popular sovereignty? How do we speak in broader democratic terms? Mr. Molyneux says that the easiest shorthand way to talk about the issue is "complete blank check" or "get out of jail free card" for corporations, that this is about complete or absolute immunity from lawsuits. He also suggests talking about complete lack of accountability for corporations.
10:12 Audience member asks whether panelists have noticed connections between preemption and other efforts to insulate executive action from review. Ms. Levine comments that it is ironic that the FDA is helping immunize a corporation from harm that a drug causes when the FDA is there to protect us from the dangers of drugs.
10:15 The panel concludes.
Panel 1: Access Denied? Our Courts and Consumer Protections
Moderator: Jeffrey Rosen, George Washington University Law School
Panelists: Diana Levine, Musician and Supreme Court litigant; Guy Molyneux, Hart Research and Daniel Goldberg, counsel to Senator Tom Harkin (D-IA)
After some technical difficulties (the tale of a mythical wireless connection), we are ready to roll.
The day opened with comments from Alliance for Justice President Nan Aron. She notes the drumbeat we keep up here—though there are many important issues that face the nation this year, we still need to have a national conversation about the importance of the federal courts and the law because of the impact on so many issues that we care about—the environment, the executive’s war powers, consumer protections and the list goes on.
And now we’re about to hear from moderator Jeffrey Rosen. He oberservs how fundamental accountability is to ensuring consumer protections and notes that Wyeth v. Levine is one of the most important cases of this term. More after the jump.
9:13 Prof. Rosen has completed his introduction of the panelists and now Diana Levine, the plaintiff seeking to prevent Wyeth Pharmaceuticals from depriving her of her day in court, is speaking. She is describing how the loss of her arm from Wyeth's anti-nausea drug Phenergan was catastrophic for her life and her career as a musician.
9:17 Ms. Levine has just begun to sing a song about how one of her wings was clipped, a song she wrote to begin the healing process for the loss of her hand.
9:19 Applause for Ms. Levine's song, and now she has begun to describe the expenses and financial burdens she suffered as a result of the complications from Phenergan.
9:20 She is now describing the week-long trial in a Vermont state court that resulted in a jury verdict in her favor, and the affirmance of that verdict by the Vermont Supreme Court.
9:21 She describes her case, now in the US Sup Ct, as not Wyeth v. Levine, but really Wyeth vs. We the People.
9:22 She wants to reassure children she works with that what happened to her could never happen to the them, but cannot.
9:23 She is quoting her father -- who helped put President Bush in the White House -- "We hld these truths to be self-evident: No one has the right to sacrifice Diana's hand to test the proposal that decisions made in Washington can relieve drug companies of the responsiblity they have for the products they put on the market."
9:25 As he introduces Daniel Goldberg, Prof. Rosen describes Diana's presentation as setting the gold standard for conveying the real world consequences of the law.
9:27 Mr. Goldberg, who works for Senator Tom Harkin (D-IA) has begun to speak, and apologizes that the Senator himself could not attend.
9:28 Goldberg: "the dry, technical cases" on statutory issues like preemption, private rights of action, and standing, often have the biggest impact on people's lives
9:29 He is now talking about the Lilly Ledbetter pay discrimination case, the Exxon oil spill case, and a case about securities fraud, all of which the Sup Ct decided against consumers in the past couple of years.
9:31 Goldberg is now addressing preemption, and the Bush administration's position that many federal statutes prevent states from giving greater protection for consumers. This position has been implemented in regulations involving areas like mattress flammability and railroad safety.
9:33 Goldberg is now describing the medical devices case from the Supreme Court, Riegel v. Medtronic.
9:34 Mr. Riegel had been injured by a defective heart catheter, but could not obtain any damages because of preemption.
9:35 Senator Harkin, joined by other Seantors, filed an amicus brief in the Sup Ct opposing preempton in Ms. Levine's case.
9:36 Goldberg is talking about how pro-business the Sup Ct is, but reminds us that with respect to statutes, Congress, not the court, has the final word.
9:37 Just this month, Congress did just that by correcting a misinterpretation of the Americans with Disabilities Act.
9:38 Mr. Goldberg is concluding by saying: "ultimately, elections matter," and that if we don't like the policies, we must choose better political leaders.
9:39 He has concluded and thanked Ms. Levine for her pursuit of justice.
9:40 Guy Molyneux, public opinion researcher, has now begun to speak about research his firm has done on preemption. They have done both focus groups and a national survey on the issue. By 64% to 31%, voters reject preemption of lawsuits from federally-approved products. The percentage increases if the injury from the product is described as serious. Opposition is throughout all regions of the country, both men and women, and all age groups, as well as all political leanings -- a somewhat smaller percentage, but still a majority, of Republicans, oppose lawsuit preemption as well.
9:45 Americans oppose preemption because they know they are at risk of being harmed by products. They believe that manufacturers "often cut corners" when it comes to safety to maximize the bottom line profit. Above all other products, Americans believe that prescription drug lawsuits should not be preempted.
9:47 Most voters have a positive view of product liability lawsuits, and 2/3 understand the limits of federal safety regulations. 86% believe that meeting federal safety standards still might mean risky products.
9:49 Americans believe that preemption of lawsuits will result in less corporate accountability.
9:50 Mr. Molyneux has finished his presentation, and Prof. Rosen is asking the panelists questions. He says to Ms. Levine that she may well lose her case, even by a large majority on the Court, and if so, asks what her message to the American people would be.
9:51 Ms. Levine says that if she does lose, it will be a blatantly pro-business decision, and the motivation to serve business interests will be exposed because the arguments in favor of preemption is so weak. She says "Justice is on our side... They took away my instruments, but they didn't take away my voice."
9:55 Prof. Rosen asks Mr. Molyneux whether we need a Democratic president to lead a broad legislative campaign to stop preemption of product liability cases. Molyneux thinks that a broad solution would require a broad coalition to bring pressure on political leaders, as well as strong leadership.
9:59 Prof. Rosen invites questions from the audience. Mr. Goldberg answers a question about cases involving fraud against the FDA by a drug manufacturer, and notes that the Sup Ct divided 4-4 about whether such a case was preempted by federal law.
10:03 Nan Aron, President of AFJ, asks how hard the US Chamber of Commerce lobbying against legislation that would restore the ability of people to sue over faulty medical devices. Mr. Goldberg says they are lobbying hard, but believes that compelling stories like Ms. Levine's can overcome the Chamber's efforts. He believes that we can get the Chamber to begin playing defense if we work together.
10:05 Prof. Rosen points out that it is an uphill battle to get a president of either party to appoint a populist who opposes corporate interests on the Supreme Court. Ms. Levine describes how she, her family and her community is doing all the work -- insult added to injury -- to try to compensate for Wyeth's failure to warn her of all the risks of the drug they manufacture.
10:08 Question from the audience: how can we talk about the issue of preemption in terms that are less technical? Is the issue one of popular sovereignty? How do we speak in broader democratic terms? Mr. Molyneux says that the easiest shorthand way to talk about the issue is "complete blank check" or "get out of jail free card" for corporations, that this is about complete or absolute immunity from lawsuits. He also suggests talking about complete lack of accountability for corporations.
10:12 Audience member asks whether panelists have noticed connections between preemption and other efforts to insulate executive action from review. Ms. Levine comments that it is ironic that the FDA is helping immunize a corporation from harm that a drug causes when the FDA is there to protect us from the dangers of drugs.
10:15 The panel concludes.
Tuesday, September 23, 2008
Senate Committee Holds Hearing on Pay Discrimination
Today, the Senate Judiciary Committee held a hearing on pay discrimination entitled, “Barriers to Justice: Examining Equal Pay for Equal Work.” The purpose of the hearing was to highlight the role that the judiciary plays in all of our lives, by either providing recourse for victims of pay discrimination or, as is all too often the case, making it all but impossible for those victims to seek redress in a court of law. Testifying before the committee were two DC based attorneys and Lilly Ledbetter, who made national headlines last year when the Supreme Court threw out her claim in Ledbetter v. Goodyear Rubber & Tire.
While the issue of equal pay has received quite a lot of attention lately, particularly among the Democrats, today’s hearing was only attended by one Republican committee member, Ranking Member Arlen Specter (R-PA). Sen. Specter made an encouraging opening statement expressing his support for the Ledbetter Fair Pay Act, a bill that would provide a legislative fix to last year’s disastrous Supreme Court decision. Unfortunately, his Republican colleagues seemed unconcerned with the matter.
Still, the hearing proved quite successful, with Ms. Ledbetter eloquently explaining the important role that the courts play in the lives of all Americans. She detailed the absurdity of last year’s Supreme Court decision, stating that it “took a law that was supposed to protect people like [her], and created a loophole that employers can drive a truck through.” She said that “[t]he Senate can restore the promise that the Supreme Court broke…by enacting the Lilly Ledbetter Fair Pay Act” and holding politicians accountable for the sorts of judges they appoint. Let’s hoping voters pay attention.
To read Lilly Ledbetter’s entire testimony, check out the Senate Judiciary Committee’s website, here.
While the issue of equal pay has received quite a lot of attention lately, particularly among the Democrats, today’s hearing was only attended by one Republican committee member, Ranking Member Arlen Specter (R-PA). Sen. Specter made an encouraging opening statement expressing his support for the Ledbetter Fair Pay Act, a bill that would provide a legislative fix to last year’s disastrous Supreme Court decision. Unfortunately, his Republican colleagues seemed unconcerned with the matter.
Still, the hearing proved quite successful, with Ms. Ledbetter eloquently explaining the important role that the courts play in the lives of all Americans. She detailed the absurdity of last year’s Supreme Court decision, stating that it “took a law that was supposed to protect people like [her], and created a loophole that employers can drive a truck through.” She said that “[t]he Senate can restore the promise that the Supreme Court broke…by enacting the Lilly Ledbetter Fair Pay Act” and holding politicians accountable for the sorts of judges they appoint. Let’s hoping voters pay attention.
To read Lilly Ledbetter’s entire testimony, check out the Senate Judiciary Committee’s website, here.
Monday, September 22, 2008
Congress Pushes Back on Bad SCOTUS Decisions
Last week, amid all of the chaos surrounding the turmoil on Wall Street, Congress found time to pass an important piece of legislation that would correct several bad Supreme Court decisions and expand protections for workers with disabilities. The bill received strong bipartisan support in both chambers of Congress and President Bush has said that he will sign it.
Since the Americans With Disabilities Act (ADA) passed in 1990, the Supreme Court has consistently released opinions limiting the breadth of its protections. While the original legislation never specifically outlined which kinds of disabilities necessitated protections, the Court regularly limited the statute to medical problems that could not be treated. According to Sen. Tom Harkin (D-IA), “Supreme Court decisions have led to a supreme absurdity, a Catch-22 situation. The more successful a person is at coping with a disability, the more likely it is the court will find that they are no longer disabled and therefore no longer covered under the ADA.”
The new law would provide a remedy for these decisions, restoring the original intent of the ADA, which according to House Leader Steny Hoyer (D-MD) was meant to be “inclusive.” Republican Sen. Orrin Hatch of Utah said this bill “will make a real difference in the lives of real people.” Now if only we could get this kind of bipartisan support for the Fair Pay Restoration Act, legislation meant to remedy last year’s disastrous decision in Ledbetter v. Goodyear Rubber & Tire.
Since the Americans With Disabilities Act (ADA) passed in 1990, the Supreme Court has consistently released opinions limiting the breadth of its protections. While the original legislation never specifically outlined which kinds of disabilities necessitated protections, the Court regularly limited the statute to medical problems that could not be treated. According to Sen. Tom Harkin (D-IA), “Supreme Court decisions have led to a supreme absurdity, a Catch-22 situation. The more successful a person is at coping with a disability, the more likely it is the court will find that they are no longer disabled and therefore no longer covered under the ADA.”
The new law would provide a remedy for these decisions, restoring the original intent of the ADA, which according to House Leader Steny Hoyer (D-MD) was meant to be “inclusive.” Republican Sen. Orrin Hatch of Utah said this bill “will make a real difference in the lives of real people.” Now if only we could get this kind of bipartisan support for the Fair Pay Restoration Act, legislation meant to remedy last year’s disastrous decision in Ledbetter v. Goodyear Rubber & Tire.
Wednesday, September 17, 2008
Happy Constitution Day!
As some of you may have heard, today is officially Constitution Day. Declared a federal holiday in 2004, Constitution Day falls on September 17th and marks the anniversary of the ratification of our Constitution in 1789. Alliance for Justice President Nan Aron is celebrating by participating in a panel discussion at American University’s Washington College of Law entitled, “The 2008 Election and the Future of the Federal Courts.” She’ll be debating the president of the conservative Committee for Justice, Curt Levey. Give ‘em hell, Nan!
Meanwhile, the Washington Post recognized the holiday by publishing a special interview with Chief Justice John Roberts targeted at students. In the interview, Chief Justice Roberts explains what he thinks is the “coolest” part of the Constitution: “Under the Constitution, justices serve for life, so they can say what the law means without worrying that it might be unpopular. Because the Supreme Court is separate from the rest of the government, it can make sure the government follows the law, too. People may know that, but I'm not sure they know how rare and special it is.” While we rarely agree with the man, we too share this particular sentiment.
Finally, the Senate celebrated this auspicious occassion by continuing Sen. Byrd's (D-WV) tradition of speaking to the chamber about the importance of our most sacred document. You can see his passionate speech below.
Meanwhile, the Washington Post recognized the holiday by publishing a special interview with Chief Justice John Roberts targeted at students. In the interview, Chief Justice Roberts explains what he thinks is the “coolest” part of the Constitution: “Under the Constitution, justices serve for life, so they can say what the law means without worrying that it might be unpopular. Because the Supreme Court is separate from the rest of the government, it can make sure the government follows the law, too. People may know that, but I'm not sure they know how rare and special it is.” While we rarely agree with the man, we too share this particular sentiment.
Finally, the Senate celebrated this auspicious occassion by continuing Sen. Byrd's (D-WV) tradition of speaking to the chamber about the importance of our most sacred document. You can see his passionate speech below.
Thursday, September 11, 2008
9/11 Should Be Day of Reflection, Not Agenda Pushing
On this day, the seventh anniversary of the terrorist attacks on New York and Washington, DC, citizens throughout the country are taking time to remember the horrible tragedy of that day, and how our nation has been forever changed by those cowardly acts of aggression. This is only naturally, and beyond that, perfectly appropriate. Unfortunately, the Wall Street Journal decided to take this opportunity to spread more rightwing rhetoric on judges. That is, in our view, completely inappropriate.
In an editorial, “Good Judges Are More Important than Ever,” two lawyers, who served under Presidents Reagan and H.W. Bush, make the absurd argument that our courts are irresponsibly inserting themselves into military and defense policy. This argument has been made before. In fact, every time the courts reject the president’s claims of unfettered executive power, conservatives cry foul, claiming that judges are improperly usurping the president’s authority. In truth, it is the president that has improperly tossed aside the Constitution.
According to today’s editorial, the recent Supreme Court decision in Boumediene v. Bush struck a heavy blow to the president and Congress’ ability to keep our citizens safe from barbaric terrorists. Of course, anyone familiar with the case knows that this assertion is completely without merit. The decision simply stated that the United States government cannot hold a person, without charge indefinitely without providing them even the most basic means to challenge his or her detention.
The piece also accuses the Court’s justices of “invalidat[ing] a careful compromise on detainee rights adopted by Congress and the president in the 2006 Military Commissions Act (MCA).” This argument is so disingenuous it’s almost offensive. The MCA was hardly a thoughtful bipartisan compromise, but rather a hurried piece of legislation pushed through Congress before Republicans lost control of the House following the midterm elections.
The Bush administration and its allies in Congress have used the War on Terror as a pretense for countless abuses of power. Alliance for Justice would like to suggest that in stead of taking advantage of this sad day to push an agenda, we as a country remember that tragic morning and consider just how much of ourselves we’re prepared to cede to those who would do us harm. As Justice Anthony Kennedy wrote, our “laws and Constitution are designed to survive, and remain in force, in extraordinary times.” Let us remember that on this tragic anniversary.
To learn the truth about the Boumediene decision, see our fact sheet here.
In an editorial, “Good Judges Are More Important than Ever,” two lawyers, who served under Presidents Reagan and H.W. Bush, make the absurd argument that our courts are irresponsibly inserting themselves into military and defense policy. This argument has been made before. In fact, every time the courts reject the president’s claims of unfettered executive power, conservatives cry foul, claiming that judges are improperly usurping the president’s authority. In truth, it is the president that has improperly tossed aside the Constitution.
According to today’s editorial, the recent Supreme Court decision in Boumediene v. Bush struck a heavy blow to the president and Congress’ ability to keep our citizens safe from barbaric terrorists. Of course, anyone familiar with the case knows that this assertion is completely without merit. The decision simply stated that the United States government cannot hold a person, without charge indefinitely without providing them even the most basic means to challenge his or her detention.
The piece also accuses the Court’s justices of “invalidat[ing] a careful compromise on detainee rights adopted by Congress and the president in the 2006 Military Commissions Act (MCA).” This argument is so disingenuous it’s almost offensive. The MCA was hardly a thoughtful bipartisan compromise, but rather a hurried piece of legislation pushed through Congress before Republicans lost control of the House following the midterm elections.
The Bush administration and its allies in Congress have used the War on Terror as a pretense for countless abuses of power. Alliance for Justice would like to suggest that in stead of taking advantage of this sad day to push an agenda, we as a country remember that tragic morning and consider just how much of ourselves we’re prepared to cede to those who would do us harm. As Justice Anthony Kennedy wrote, our “laws and Constitution are designed to survive, and remain in force, in extraordinary times.” Let us remember that on this tragic anniversary.
To learn the truth about the Boumediene decision, see our fact sheet here.
Monday, September 8, 2008
Surprise! WSJ Calls for More Confirmations.
Congress reconvenes this week for a marathon three week session before everyone returns home for a final election push. The Wall Street Journal editorial board wasted no time in throwing renewed allegations of obstruction at Democratic members of the Senate Judiciary Committee. In an op-ed today, the Journal accused the committee of checking out months ago and unfairly stalling the president’s circuit court nominees. Of course, those who follow nomination battles closely know that their rhetoric is one-sided.
Considering that it is September in an election year, the likelihood that any nominee will be confirmed is slim, particularly given the controversial nature of many of the president's remaining appeals court nominees. Historically, judicial appointments are put on hold until the next president has been determined – the Republican-controlled Senate also took a break from confirming circuit level judges during the 2004 presidential election, not confirming any after June of that year.
Of course, the Journal would prefer to see this tradition tossed aside for the sake of “fairness.” Pulling straight from Republican talking-points, the editorial claims that Democrats should push to match the number of circuit court nominees confirmed in President Clinton’s final year. It doesn’t mention however, that the lower number of confirmed judges this year might have something to do with the fact that judicial vacancy rates are at a historic low.
The Journal also complains that Republicans have sacrificed too much in their attempts to push through their nominees. It chastises the big bad Democrats for deeming merely “conservative” nominees as “controversial,” suggesting that E. Duncan Getchell was held up because of his ideology -- in truth it was because the president flouted consultation with the Senate, an action decried even by Virginia Republican Senator John Warner.
Oh, and the latest example of liberal treachery? Efforts by yours truly, Alliance for Justice, to “blackball” third circuit nominee Gene Pratter. If raising concerns about a nominee’s record on employment discrimination is blackballing, we’re guilty as charged.
Considering that it is September in an election year, the likelihood that any nominee will be confirmed is slim, particularly given the controversial nature of many of the president's remaining appeals court nominees. Historically, judicial appointments are put on hold until the next president has been determined – the Republican-controlled Senate also took a break from confirming circuit level judges during the 2004 presidential election, not confirming any after June of that year.
Of course, the Journal would prefer to see this tradition tossed aside for the sake of “fairness.” Pulling straight from Republican talking-points, the editorial claims that Democrats should push to match the number of circuit court nominees confirmed in President Clinton’s final year. It doesn’t mention however, that the lower number of confirmed judges this year might have something to do with the fact that judicial vacancy rates are at a historic low.
The Journal also complains that Republicans have sacrificed too much in their attempts to push through their nominees. It chastises the big bad Democrats for deeming merely “conservative” nominees as “controversial,” suggesting that E. Duncan Getchell was held up because of his ideology -- in truth it was because the president flouted consultation with the Senate, an action decried even by Virginia Republican Senator John Warner.
Oh, and the latest example of liberal treachery? Efforts by yours truly, Alliance for Justice, to “blackball” third circuit nominee Gene Pratter. If raising concerns about a nominee’s record on employment discrimination is blackballing, we’re guilty as charged.
Thursday, September 4, 2008
Medtronic in Hot Water…Again.
The Wall Street Journal reported today that Medtronic, Inc., the medical supplies giant that has been the center of much controversy lately, is in trouble again - this time for a drug it produces for aid in spine-repair surgeries. According to the article, major side effects (and some deaths) have been reported in cases where the drug was used “off label,” or in ways not outlined on the drug’s label.
Some may remember that Medtronic was named as a defendant last year in the Supreme Court case Riegel v. Medtronic. The case was brought against the company because of faulty equipment, like pacemakers and defibrillators that caused serious health problems in patients. In a highly-publicized decision, the Court sided with Medtronic, claiming that the public does not have the right to sue a company under state law for products that have already been approved by the FDA, even if those products have side-effects not foreseen by the agency.
In response to this decision, a bill has been introduced in Congress called the Medical Device Safety Act of 2008. The bill would provide a legislative fix to the Court’s unfortunate disregard for public safety by requiring that both FDA regulation and state tort law are utilized in order to ensure the safety of medical devices.
This fall, the Court will hear another case regarding preemption, Wyeth v. Levine. In that case, pharmaceuticals giant Wyeth, is attempting to use the same reasoning from last year’s Medtronic decision to absolve itself of responsibility in the amputation of patient, Diana Levine’s arm following the misadministration of their drug Phenergan. If the Court continues to side with these companies, it will effectively leave victims of corporate malpractice without recourse.
Some may remember that Medtronic was named as a defendant last year in the Supreme Court case Riegel v. Medtronic. The case was brought against the company because of faulty equipment, like pacemakers and defibrillators that caused serious health problems in patients. In a highly-publicized decision, the Court sided with Medtronic, claiming that the public does not have the right to sue a company under state law for products that have already been approved by the FDA, even if those products have side-effects not foreseen by the agency.
In response to this decision, a bill has been introduced in Congress called the Medical Device Safety Act of 2008. The bill would provide a legislative fix to the Court’s unfortunate disregard for public safety by requiring that both FDA regulation and state tort law are utilized in order to ensure the safety of medical devices.
This fall, the Court will hear another case regarding preemption, Wyeth v. Levine. In that case, pharmaceuticals giant Wyeth, is attempting to use the same reasoning from last year’s Medtronic decision to absolve itself of responsibility in the amputation of patient, Diana Levine’s arm following the misadministration of their drug Phenergan. If the Court continues to side with these companies, it will effectively leave victims of corporate malpractice without recourse.
Tuesday, September 2, 2008
Rendition Victim May Still Get His Day in Court
Amidst the endless news cycles focusing on the Democratic National Convention, Hurricane Gustav and now the Republican National Convention, reports that the Second Circuit Court of Appeals agreed to reconsider the case of Mr. Arar, a Syrian-born Canadian alleged to be a victim of extraordinary rendition, was understandably lost in the shuffle. On August 13th however, the court announced that it will rehear the case en banc in December, despite originally dismissing it in June.
The New York Times published an editorial on Sunday lauding the court’s decision. While Alliance for Justice and the Times were both troubled by the court’s callous dismissal of Mr. Arar’s case in June, the fact that the full panel agreed to rehear the case -- even before Mr. Arar’s attorneys submitted their request -- is a positive step.
As we wrote in earlier posts, the distressing details of Mr. Arar’s treatment demand justice; attempts by the Bush administration to shut him out of our legal process only serve to demean our system of justice. If our government truly feels it acted appropriately in its “deportation” of Mr. Arar, then it should not have any qualms about defending its actions in court of law.
The New York Times published an editorial on Sunday lauding the court’s decision. While Alliance for Justice and the Times were both troubled by the court’s callous dismissal of Mr. Arar’s case in June, the fact that the full panel agreed to rehear the case -- even before Mr. Arar’s attorneys submitted their request -- is a positive step.
As we wrote in earlier posts, the distressing details of Mr. Arar’s treatment demand justice; attempts by the Bush administration to shut him out of our legal process only serve to demean our system of justice. If our government truly feels it acted appropriately in its “deportation” of Mr. Arar, then it should not have any qualms about defending its actions in court of law.
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