Federalist Society Perpetuates Liberal Judiciary Myth

On Tuesday, Steven Calabresi of the Federalist Society, wrote an op-ed for the Wall Street Journal. In it, he argues that the federal courts are teetering on the brink of absolute liberalism – no doubt a catastrophe in his mind. To illustrate this point, he misrepresents facts in an effort to perpetuate the myth that there is such a thing as a liberal and “activist” judiciary.

Mr. Calabresi accuses Democrats of waging an eight-year obstruction campaign against President Bush’s judicial nominees and suggests that, should one win the White House, “the balance will shift…on almost all of the…federal appeals courts.” We can only assume that this shift he refers to would be the courts swinging from almost entirely conservative to simply, a little less conservative.

In truth, ten of the 13 federal circuit courts of appeals have Republican-appointed majorities. Only one, the Ninth, has a majority of judges who were appointed by a Democrat. And as for Mr. Calabresi’s argument that come inauguration day, six of the nine Supreme Court justices will be over 70 – what he conveniently forgets to mention is that four of those six are the justices who make up the court’s liberal bloc.

If only it were as easy as Mr. Calabresi suggests to reverse the damage done to our federal judiciary by President Bush. Truth is, we have years of work ahead of us if we are to mitigate the consequences of his eight years of court packing.

Committee's Preemption Report Details Internal Challenges to Anti-Consumer Agenda

Today, the House Oversight Committee released a majority staff report detailing objections made by career Food and Drug Administration employees to the Bush administration's repeated attempts to expand the preemption doctrine in ways that would harm American consumers. The report, released just days before Wyeth v. Levine oral arguments, outlines the dangers this policy poses to public safety and the disturbing efforts by officials within the Bush administration to push its pro-business agenda over the objections of career agency staff.

The report claims that “for over a century, state tort law has provided that Americans injured by a defective product can sue the manufacturer of that product for damages” and that in the case of medical devices or drugs, this policy has “provide[d] an additional layer of protection” for the consumer. But despite the century’s old policy of promoting state tort law as a complement to FDA regulation, high-level FDA officials and the Bush administration have spent the past two years working to eliminate this critical safe-guard.

Noting that “internal agency documents obtained by the Committee show that these regulatory changes were made by FDA over the objections of key career officials,” the report goes on to say that these officials “repeatedly warned that the central factual justifications for the agency’s new positions were false.” These officials cautioned that “changes in the labeling rules would harm patients by significantly delaying the addition of important safety information to drug labels.” Sadly, despite their objections, the FDA and the Bush administration has continued to push this policy.

Congressman Henry Waxman continues to do a great job as Chairman of the House Oversight Committee and deserves a great deal of credit for releasing this report at such a critical time. As the nine justices of the Supreme Court prepare to consider this issue on Monday, we hope they consider the committee's findings. The Bush administration and the Chamber of Commerce may argue that state tort laws only frustrate FDA efforts to ensure drug safety, but 100 years of precedent prove otherwise. To enact federal preemption policy without explicit congressional approval would be the definition of “judicial activism.”

To learn more about this issue, check out our fact sheet “The Supreme Court & Big Business” here.

Cardinal Newman Opposes Breyer Award

New York’s Fordham University has found itself at the center of some controversy lately surrounding its decision to honor Supreme Court Justice Stephen Breyer with the Fordham-Stein Ethics Prize. The award is meant to honor those “whose work exemplifies outstanding standards of professional conduct” and “promotes the advancement of justice.” But according to Cardinal Newman Society President Patrick Reilly, who is also a graduate of Fordham, Justice Breyer’s support for abortion rights makes him an unsuitable candidate for the prize.

Mr. Reilly has gathered over a thousand signatures calling for the award to be rescinded, claiming that giving it to someone who is so staunchly pro-choice is an “affront” to the Church’s teachings. And Fordham University is after all, a Catholic university. Still, some question why Justice Breyer is being singled out when former Justice Sandra Day O’Connor and current Justice Ruth Bader Ginsburg, both supporters of abortion rights, also received the award with little if any opposition. Mr. Reilly simply dismisses the inconsistency by saying that those awards must not have been brought to the society’s attention.

Not to worry though, Mr. Reilly’s particular brand of orthodoxy is equal-opportunity. It seems that Boston College’s decision to host an event that featured Sen. John McCain’s daughter, Meghan, was also inappropriate in his view. Despite the fact that Sen. McCain has a strong record of opposition to abortion, it seems his support for stem-cell research is enough to disqualify him from any recognition by Catholic universities. Still, we can’t help but wonder: if Mr. Reilly would limit his list of potential honorees so strictly, would there really be anyone left to recognize?

Nasty Tricks in California as Proposition 8 Vote Approaches

Halloween came early this year in California. But instead of treats, some Californians got a very nasty trick. Actually, a host of tricks. No, these were not the typical childish pranks like soap on the windows or toilet paper in the trees. These tricks came in the mail.

Last week, some businesses, individuals, and nonprofit organizations supporting the fight against California's bigoted Proposition 8 received letters in the mail from the so-called ProtectMarriage.com, a coalition of ghouls and goblins who are responsible for the original trick -- the nasty Proposition 8 itself. The letter threatened to publish the names of these supporters as against "traditional marriage." But wait, they did offer recipients of these letter one way to save themselves from the shame of being outed as opponents of Proposition 8. All they had to do was give a "like amount" to ProtectMarriage.com. Here's the key part of the letter:

The names of any companies and organizations that choose not to donate in like manner to ProtectMarriage.com but have given to Equality California will be published. … It is only fair for Proposition 8 supporters to know which companies and organizations oppose traditional marriage.

This blatant attempt at extortion is not only shameful and mean-spirited, it's downright laughable. If ProtectMarriage.com was aware of the laws in California around ballot measure work (guess its hard when you are intellectually and financially headquartered in Utah), they would know that donors to ballot measure campaigns are already subject to disclosure. And not by scary rightwing blackmail artists, but by the California Secretary of State.

While nonprofit organizations, particularly those fighting for civil rights issues, generally take pride in providing anonymity to their donors, nonprofits fighting for ballot measures in California long ago lost this right to anonymous speech. Perhaps somebody should tell the ProtectMarriage.com coalition. The fact is that most nonprofits in California have generally accepted (grudgingly) the reality of publicizing donors, recognizing the requirement as the price advocates must pay to work on ballot measures in the state. For years, these groups have disclosed the name, address, occupation, and employer of donors whose contributions are used to support ballot measure work. This information is generally used by reporters to provide statistics about who is backing the ballot measure and, more broadly, to ensure public confidence in the ballot system. Unfortunately, the ProtectMarriage.com coalition chose to use it to threaten donors and use scare tactics to help pass Proposition 8.

ProtectMarriage.com's actions are shameful. Even worse, they are futile since most of the donors to Equality California would proudly tell you that they are staunchly opposed to Proposition 8. Furthermore, anyone interested in knowing who supported Equality California and its ballot measure committee - Equality for All, No on 8 – just contact the California Secretary of State and check out the organization’s electronically filed forms. You don’t have to wait for the ProtectMarriage.com coalition to carry out its silly threat. And you thought Halloween was for children.

Janet Reno & Co. Urge Court to Reconsider Detainee Case

The Associated Press is reporting that several former military generals joined with former Justice Department officials in a brief requesting that the Supreme Court reconsider a Fourth Circuit case which gave the Bush administration unprecedented authority to indefinitely detain suspected “enemy combatants” within the United States.

Former Attorney General Janet Reno and Former FBI Director William Sessions were among those who signed onto the brief. The authors argued that “This unprecedented expansion of executive authority within the borders of the United States is not only at odds with more than 200 years of history, but it is wholly unnecessary. The federal government is eminently capable of both protecting our nation's security and safeguarding our proud tradition of civil liberties.”

To learn more about the case, which centers around the five year detention of Qatari citizen Ali al-Marri, you can read our earlier blog post here.

Uighurs Still Awaiting Release

On Tuesday, a three-judge panel of the DC Circuit Court of Appeals suspended the release of 17 Uighurs (Chinese Muslims) into the United States until the court has an opportunity to consider a government appeal. The men, who have been held at Guantanamo for over six years, have sparked a rancorous debate over the fate of men detained by the government in its war on terror.

Although the Uighurs were cleared for release in 2004, the Bush administration has been unable to find a country willing to accept them because of their classification by the U.S. government as terrorists. As a result, a federal judge ordered their release into the U.S. on October 7. President Bush, claiming that they were too dangerous to be let into the country, appealed the decision, and continued to push the State Department to find somewhere else that might take them.

Last week, the New York Times reported that the State Department’s efforts to find alternative placement for the men had been frustrated by the zealousness with which the administration has fought their release. By arguing that the 17 men pose too much of a threat to be released into the United States, the president has raised serious concerns within countries that might have considered taking them in.

The DC Circuit is scheduled to hear arguments in the case November 24.

Court May Hear Landmark Religious Establishment Case

The Bush administration is urging the Supreme Court to consider whether the government can continue displaying a cross as a memorial to fallen soldiers in California’s Mojave National Preserve. The Ninth Circuit has already ruled that the cross must be taken down, but Congress and the president have consistently tried to get around that ruling. Now, the administration is looking to the high court’s new conservative majority to step in.

The debate over the cross started in 1999, when the National Park Service considered a request to place a Buddhist shrine on a nearby trail. The request was denied, but soon after, the National Park Service announced that it would also take down the cross. Congress intervened however, and ordered that the cross remain on display. But in a 2001 suit, brought by former park service employee Frank Buono, the Ninth Circuit decided that by refusing to place the Buddhist shrine, but continuing to display the cross, the government would be violating the establishment clause.

Soon after the Ninth Circuit’s decision, the Department of the Interior, under orders from Congress, gave the land on which the cross sat to the VFW, a private organization. The government believed this would provide a way around the court’s decision. But the Ninth Circuit didn’t budge, and claimed that because the piece of land given to the VFW sat in the middle of a massive national preserve, any “reasonable observer would perceive” the cross as an endorsement of religion. Now, Solicitor General Gregory Garre has asked the Supreme Court to consider the case.

The importance of this particular case, should the court accept it, is not so much the particular cross display, but rather the ability of citizens to sue the government for violation of the establishment clause. One of the arguments made by Mr. Garre in his appeal to the court is that Mr. Buono lacked standing to bring the suit. This argument has played well with the Supreme Court’s conservative leaning majority.

As we noted in an earlier post, 40 years of precedent has provided considerable leeway for citizens to challenge government policies when it comes to establishing religion. In 2007 though, the Supreme Court, under Chief Justice John Roberts, began chipping away at that right by ruling that taxpayers don’t have the right to challenge executive expenditures under the establishment clause. Justices Antonin Scalia and Clarence Thomas wanted to do away with the right altogether. Now, the Court may have an opportunity to do just that.

If the justices rule that Mr. Buono lacked standing to file his claim in the Ninth Circuit, it could have disastrous effects on citizens’ ability to ensure Church-State separation. We will certainly be keeping a close eye on this case.

Republicans Still Crying Wolf on Voter Fraud

Hours after last week’s Supreme Court dismissal of a case brought by the Ohio Republican Party, seeking the records of newly registered voters in order to challenge their validity, Republican fundraiser David Myhal brought a new suit in the Ohio Supreme Court requesting the same information. As we noted in a previous entry, it appears that Republicans have decided to focus on suppressing new voter registration efforts rather than attempting to compete for these new voters.

Ohio’s Secretary of State Jennifer Brunner argues that it is too late to start challenging the eligibility of some 200,000 newly registered voters, whose names don’t match DMV databases, claiming that the confusion could lead to the accidental purging of thousands of legitimate voters. She claims that many of the 200,000 mismatches were likely caused by clerical errors and database mishaps, rather than attempts to defraud the state.

In fact, the recent media firestorm surrounding the now infamous “Joe the Plumber” only serves to highlight Ms. Brunner’s concerns. Last week, reports circulated that Joe Wurzelbacher (his real name) wasn’t even registered to vote in Ohio. Later, these stories were corrected. It turns out Mr. Wurzelbacher’s name had simply been misspelled on Ohio’s voter rolls.

While limiting voter fraud is important, conservatives around the country have been fighting a fierce campaign aimed at suppressing voter turnout. Earlier this year, the Supreme Court upheld Indiana’s voter-ID law, which requires voters to show state-issued identification cards at the polls. Thousands of poor and minority residents have no such ID cards. Georgia and Arizona have passed strict laws requiring proof of citizenship in order to vote. And now, Republicans are brazenly claiming that voter-registration efforts by ACORN could “destroy the fabric of our democracy.”

In order to protect voters’ rights, thousands of lawyers, including members of Alliance for Justice’s Nonprofit Advocacy Project have mobilized to offer advice to voters regarding their eligibility and to combat any attempts to intimidate voters on November 4. AFJ has also released a fact sheet advising nonprofit organization on what kind of activities they can engage in to protect voters. That document is available on our website here.

Exxon-Valdez Award Still Being Litigated

Just when you thought that the victims of Alaska’s disastrous 1989 Valdez oil spill might finally see some of their settlement money, another case has been filed in federal court that could delay disbursement of the funds even further. While we noted the harm that the Supreme Court’s June decision had done to victims of corporate negligence immediately after the decision was released, we never could have foreseen the latest consequence of that decision.

In its decision, the Court opined that punitive damages, in maritime cases, must be proportional (1:1) with compensatory damages. While we criticized this interpretation of maritime law, claiming that it undermined the purpose of punitive damage awards, it turns out there is yet another potential consequence of this arbitrarily set 1:1 ratio. According to the Associated Press, Sea Hawk Seafoods Inc. has challenged its award allotment, claiming that the proportional method outlined by the Court requires that it receive a larger share of the award money.

The justices never examined the actual allotment process, but rather the process used to determine punitive damages, and for months, litigants involved in the case assumed that a process set by District Judge H. Russell Holland in 1996 would determine the allocation of funds. Unfortunately, lawyers for Sea Hawk Seafoods interpreted the proportional policy laid out by the Court to also affect the distribution.

If successful, Sea Hawk’s challenge could potentially cut the shares of the other litigants even further. Their shares have already been cut almost 90% by two previous court decisions. In a strange turn of events however, lawyers for ExxonMobil are opposing Sea Hawk’s claim and siding with individual commercial fisherman, arguing “they just want a whole lot more money that they're not really entitled to.”

DOJ Releases Controversial Memo on Faith-Based Programs

According to ACSBlog, the Justice Department has released a memo providing legal cover for faith-based programs who receive federal funding but use religious affiliation as a basis for hiring. The memo, which is available here, reinterprets the Religious Freedom Restoration Act of 1993 to categorically exempt any religious organization that receives federal funding from any anti-discrimination policies, even if the programs through which these groups receive their funding specifically require inclusive hiring practices.

The blog post references a New York Times article, which delves deeper into the hiring practices of World Vision, a faith-based group that receives federal money to pay for its anti-gang programs, but only hires Christians. According to ACS, World Vision defines itself as “an international partnership of Christians whose mission is to follow our Lord and Savior Jesus Christ in working with the poor and oppressed to promote human transformation, seek justice, and bear witness to the good news of the Kingdom of God.”

Unfortunately, this memo seems to be another instance of the Justice Department providing cover for the excesses of the Bush administration – this time, its efforts to expand federal funding for faith-based initiatives. And as the Times article points out, these issues are often “difficult to get before a court.” In 2007, the Supreme Court ignored 40 years of precedent in determining that individual taxpayers do not have standing to challenge executive expenditures on faith-based programs under the Constitution’s establishment clause. It seems unlikely then that the Court would allow individuals to challenge these programs’ hiring practices either.

Barry Lynn, president of Americans United for Separation of Church and State said “The Bush administration has been trying to allow religious recipients of tax dollars to discriminate in hiring. No Congress intended that. The Constitution does not permit it. And this memo is just one more example of this administration subverting Congressional and constitutional intent in pursuit of a forbidden goal: discrimination in hiring.”

Hollywood Goes to Court

The worlds of Hollywood and the notoriously camera shy justices of the Supreme Court rarely collide. But today, the Court released a decision in the case Hollywood v. California. While there’s no doubt that Justices Antonin Scalia and Clarence Thomas would love to take on that bastion of liberalism (Hollywood), this particular case draws its name from the plaintiff, Jesse James Hollywood.

The case not only involved a plaintiff named Hollywood, but Hollywood itself, in the form of a movie called Alpha Dog. The star? None other than Justin Timberlake! If you’ve seen it, you’re one of a very select few. Anyway, it seems that a Santa Barbara County deputy district attorney, Ron Zonen, cooperated with the movie’s producers, providing background information on the real life murder case on which the movie was loosely based. Hollywood, the man charged with the murder felt that this collaboration should disqualify Mr. Zonen from his prosecution.

Unfortunately for Mr. Hollywood (its tough to decide which name we like more, Hollywood or Jesse James), the Supreme Court disagreed, and will allow Mr. Zonen to continue his role in Mr. Hollywood’s prosecution. While this case might not have far reaching implications, it’s certainly a change from the normal run of cases we feature. You can see the Associated Press’ write-up here.

Proof of Additional Torture Memos Surfaces

Though many have long presumed that the Bush administration participated in the formulation of CIA interrogation policy, until now, direct evidence has remained illusive. That is, until now. On Wednesday, the Washington Post published an article stating that several former CIA officials had confirmed that the president provided two separate memos specifically approving the use of controversial interrogation techniques such as waterboarding.

According to the Post, CIA officials knew that the use of these techniques could potential prove troubling to Americans and wanted to make sure that they had cover, in writing, from the White House. While the CIA itself formulated the interrogation policy based on authority that the president granted to “wage war on al Qaeda,” it knew that any public debate over specifics like waterboarding could prove contentious. As a result, officials asked the White House for explicit written authorization.

Some sources for the story claimed that the CIA pushed for the policy and framed the issue in a way that left the White House with little recourse but to approve it. Other sources claimed that the White House itself was clear from the beginning about the kind of policies it wanted to implement. Most of the former CIA officials argued that the CIA did not push the use of these interrogation techniques because they knew they were widely regarded as torture. This is the very fact that made them nervous and spurred their repeated request s for written approval from the administration.

At the end of the day, it does not matter who suggested torture first. It is now clearer than ever that the CIA, the Justice Department and the White House all played a role in approving the use of torture, and despite years of backlash regarding these techniques, the administration has not seemed to change its position at all. When asked for a statement by the Associated Foreign Press, White House officials simply stated that “the United States does not currently use waterboarding, but that it would not rule out the use of such techniques in the future.”

Battle Over Ohio Voters Continues

In a year where the election will no doubt shape the future of our judiciary, it seems our courts will be shaping the election. As was the case in Florida in 2000 and Ohio in 2004, election officials might very well challenge voter eligibility in the courts. But this year, the Ohio Republican Party (ORP) appears to be getting an early start. When you’re running behind in the polls, disqualifying new voters must seem like a brilliant strategy. Of course, pesky legal issues always seem to get in the way.

Earlier this month, the ORP, alarmed by massive registration of new Democratic voters, filed a suit in federal district court demanding a list of these new voters so that ORP could challenge their validity. Ohio Secretary of State Jennifer Brunner objected, concerned that allowing local parties to challenge voter eligibility so close to the election (they were already given two years to do so) might mean the disqualification of thousands of perfectly legitimate votes. The district court sided with the ORP, but Ms. Brunner appealed to the Sixth Circuit. This is where the story gets interesting.

The original three-judge panel that heard the case sided with Ms. Brunner, arguing that interference in state election matters would risk voter suppression. They also questioned whether local parties like ORP were even eligible to bring these kinds of suits. But, the Sixth Circuit's conservative majority, dissatisfied with the panel’s decision, granted an en banc hearing in which they reversed the panel decision and supported the ORP’s claim. As we noted yesterday, the majority of the judges sitting on this court were appointed by Republican presidents (ten of the 16 to be exact) and one of the judges actually has a spouse running for reelection on the Republican ticket.

But it seems Ms. Brunner has no intention of giving up so easily. News broke today that Ohio’s attorney general has filed a motion in the Supreme Court on behalf of Ms. Brunner asking the Court to reconsider the Sixth Circuit’s decision. According to reports, Justice John Paul Stevens, who handles cases from the Sixth Circuit, is considering the case. We certainly hope the Court agrees to hear it, but are far from confident about the outcome, particularly considering President Bush’s appointees, Justices John Roberts and Samuel Alito, who have already shown their willingness to decide cases on partisan ideology. And, of course, we all remember what the rest of the conservative justices did in a little case from 2000.

Ironies in Uighur Saga Continue to Mount

Well, as we mentioned before, the 17 Uighurs (Chinese Muslims) awaiting release from Guantanamo continue to be caught in the middle of the Bush administration’s constant power grabs.

Last Tuesday, District Judge Ricardo Urbina ordered the administration to release the Uighurs into the United States. His reasoning: the government had cleared the men for release years earlier, but could not find a country willing to accept them. The United States’ insistence (later disproved) that the Uighurs were terrorists made these nations skittish about opening their borders to them. As a result, the U.S. must be willing to accept them in place of no other alternative.

Following Judge Urbina’s order however, the Bush administration filed an emergency appeal to the more conservative DC Circuit, claiming that the precedent of ordering the release of potentially dangerous detainees into the United States was too dangerous. The problem with this theory however, is that it creates an obscenely perilous (as we put it earlier) catch-22. This administration detained citizens abroad, often based on flimsy evidence of terrorist ties, and placed them in a system with no safeguards to protect the innocent. As a result, there are no procedures in place to ensure the quick release of any detainee deemed innocent.

Well, the DC Circuit didn’t seem particularly moved by this fact and ordered a stay on the Uighurs’ release so that they could consider the administration’s appeal. Meanwhile, President Bush continued to push the State Department to find another country willing to take the prisoners. Now we come to the latest contradiction. According to the New York Times, the State Department has complained that the administration has made it almost impossible for them to convince any other nation to accept the Uighurs by fighting so hard to keep them out of the United States.

It seems that the Bush administration’s refusal to accept any oversight in the perpetration of its War on Terror has created a legal black hole larger than anyone had previously imagined. And its refusal to admit its mistakes now means that 17 innocent men are stuck in legal limbo.

Sixth Circuit Strikes Serious Blow to Voter Rights

The ultra-conservative Sixth Circuit Court of Appeals has released an alarming decision that seems disturbingly political. Yesterday, the full Sixth Circuit panel released a decision after holding an en banc hearing in which it ordered the Ohio Secretary of State to provide county election boards with a list of all registered voters whose registration information does not “match” information in the state motor vehicle bureau’s database.

The case was brought by the Ohio Republican Party (ORP) looking to create a sort of “hit list” of voters whose information did not match the information in the motor vehicle bureau’s database. It was originally rejected by a three-judge panel because the justices had serious doubts that private parties like ORP could even bring suits of this sort and that there was a serious risk that a court’s interference with state election procedures could lead to improper “purging” of completely valid ballots.

The Sixth Circuit’s conservative majority however, did not like the panel’s decision and agreed to hear the case en banc, eventually reversing the outcome. In a statement today, Alliance for Justice President Nan Aron said, “Yesterday’s decision by the Sixth Circuit upholding an effort to disenfranchise thousands of voters is an extraordinary example of making decisions based on a political agenda rather than legal principles. Evidently, when push came to shove, the conservatives on the Sixth Circuit could be relied upon to give the Republican Party one of the tools it needed to set the stage for post-election turmoil in Ohio.”

Probably the most disturbing part of yesterday’s decision comes from George H.W. Bush appointee Alice M. Batchelder. Judge Batchelder’s husband, a Republican state representative, is up for reelection in November. Despite this clear conflict of interest, Judge Batchelder did not recuse herself. She sided with the conservative majority in support of ORP. Once again, it looks like Ohio will be a major battle-ground in this year’s election.

The Guantanamo Catch-22

An editorial in today’s Wall Street Journal, stamped with an alarming headline, “The Terrorists Next Door” only serves to highlight the troubling nature of the president’s “War on Terror.” Conservatives frame the issues in black and white, with Bush using his “wartime powers” to capture dangerous “terrorists.” The reality however, is much more nuanced.

In today’s piece, the Journal’s editorial board condemns an order by District Judge Ricardo Urbina that the government release 17 Uighurs from Guantanamo’s detention camp. While everyone acknowledges that these detainees pose no threat to the United States, and probably never should’ve been detained in the first place, the president and his allies argue that Judge Urbina’s decision sets a dangerous precedent that will lead to the release of vicious terrorists into the United States.

In truth, it is President Bush that has set a dangerous precedent by detaining suspects, often on flimsy evidence of terrorist ties, shipping them half-way around the world and labeling them “enemy combatants.” The president has created a legal black-hole that he cannot get himself out of, and the courts are left to clean up the mess.

In this case, he detained 17 innocent Uighurs and kept them imprisoned for over six years. Now that the United States government has labeled them as potential terrorists, most nations are loath to take them in, leaving these men with no place to go. So they sit in a sort of detainee purgatory at Guantanamo. Judge Ricardo simply said that these men cannot be forced to pay the price for the government’s mistakes. If it cannot find a country to accept these men, then the United States, being the country that put them in this position, must then take them.

Conservative commentators like those who make up the Journal’s editorial board, like to chastise the “activist” judiciary for over-stepping their role. But, what options do the courts have? The president is the one who overstepped his authority by inventing classifications and procedures to deal with so-called “enemy combatants” with no safe-guards to protect the innocent.

These Uighur detainees were cleared for release years ago, but have remained imprisoned because of the administration’s lack of foresight. The legal issues surrounding Guantanamo are far from black and white. We see a depressing shade of gray.

Court Hears First Preemption Case

The Supreme Court opened its term Monday by hearing arguments in Altria Group v. Good, which will determine whether tobacco companies can be held liable for misleading advertisements for so-called “light” cigarettes. The case, which stemmed from a class action lawsuit in Maine, deals with the tricky legal question of preemption, a theme that has been cropping up with increasing frequency on the Court's docket. The highly publicized case, Wyeth v. Levine, which will be argued on November 3rd, also deals with preemption, but in reference to pharmaceutical companies and drug safety.

Ted Olsen, former Solicitor General of the United States who argued Bush v. Gore in front of the Supreme Court and currently sits on John McCain’s judicial selection committee, argued on behalf of the tobacco giant Altria Group, which includes Marlboro manufacturer Phillip Morris. Mr. Olsen claims that, because the Federal Trade Commission (FTC) gave cigarette manufacturers the freedom to make assertions regarding the safety of their products, as long as they were based on a particular testing method, tobacco companies are immune from liability for injuries resulting from their products. The respondents argue that Altria knew that real smokers compensated for the lower tar and nicotine levels in “light” cigarettes by smoking more or inhaling deeper, but continued to market its product as a safer alternative.

The justices hearing the case seemed open to Mr. Olsen’s argument that FTC regulations preempt state laws, including Maine’s Unfair Trade Practices Act. If the Court sides with Altria and says that preemption doctrine does apply here, it would severely limit states’ ability to regulate the marketing of cigarettes. Perhaps most concerning is that during oral arguments, Justice Alito seemed to agree with the underlying principle that these cigarettes were just as harmful, even with lower tar levels, but placed the blame on the FTC for “passively approving” these misleading marketing practices instead of Altria. This pro-business interpretation seems to absolve corporations of any responsibility whatsoever, placing the blame solely on the shoulders of regulators.

Justice Department Outsources Voting Rights Hotline

AFJ's Advocacy Digest blog, which covers issues of importance to foundations and nonprofits who engage in advocacy work, published this disturbing story today.

With our country facing its worst economic crisis in decades, American voters need little reason to argue that our federal government has seen a lack of real solutions to some of our most pressing issues.

Yet one issue that remains relatively unknown to many Americans is the fervent battle over voting rights, which has been silently raging between party insiders on both sides of the political spectrum.

Now, with less than four weeks until Election Day, advocates concerned with the growing legal quagmire over voting rights are noticing some serious red flags—the latest of which seems poised to go down in the “what were they thinking?” hall of fame.

According to this ad, it appears the Department of Justice (DOJ) has contracted its Voting Rights Section’s 2008 U.S. Election Hotline to none other than defense contractor Lockheed Martin. For those of you not familiar with this service, the hotline was created for callers to determine registration status, report voter
intimidation and suppression, and to ask general questions about voting procedures and eligibility.

Should Lockheed Martin, which spends roughly $10 million dollars per year lobbying the federal government, and which currently lists as one of its vice-presidents a nominee for a hotly contested congressional race in New Jersey, have the final say over who can and cannot provide guidance to distressed voters on Election Day?

With campaign contributions to over 50 candidates in this election cycle alone from Lockheed Martin, the question remains—where’s the justice in the DOJ?

Bush Administration Makes Pawns of Uighur Detainees

On Tuesday, United States District Court Judge Ricardo Urbina ordered the release of 17 Chinese Muslims, called Uighurs, who have been held at Guantanamo Bay for over six years. The judge, citing the Supreme Court’s June decision in Boumediene v. Bush, ruled that detaining people indefinitely without court review “is not in keeping with our system of government,” and demanded that the Uighurs be immediately released into the United States. Despite the fact that the government has already cleared the detainees for release, and no longer considers them to be “enemy combatants,” the Bush administration has vowed to fight the judge’s order, filing an appeal in the DC Circuit.

As we mentioned in an earlier post, the Uighurs are an ethnic minority from western China who have faced years of oppression by the Chinese government. These particular detainees fled across the border to Afghanistan in hopes of escaping persecution. Unfortunately, they traded one form of oppression for another. The United States accused them of being “enemy combatants” and brought them to Guantanamo Bay, despite the fact that the Uighurs have traditionally supported Western governments as a foil to Chinese authoritarianism. After years of legal battles, the Uighurs were able to convince the US government that they were innocent and were cleared for release. Unfortunately, after being classified as terrorists by the US government, most nations were reluctant to accept them, leaving the Uighurs in a sort of limbo – deemed innocent, but stuck in Guantanamo.

Now it seems that the Bush administration wants to use these innocent men as pawns in its war with the judiciary, which has consistently rebuked the president’s claims of sweeping executive powers. Showing no regard for the fact that these detainees pose no threat to the United States, the administration has decided to fight their release order, claiming that it sets a dangerous precedent. Of course, if the administration had simply released them to begin with, there would never have been a need for the court to intervene. Still, the DC Circuit Court of Appeals has agreed to consider the case, and has stayed the release of the 17 detainees. It looks like justice for the Uighurs is still a distant dream.

Supreme Court Opens New Term

Today, the Supreme Court’s 2008-2009 term opens with an important preemption case regarding Big Tobacco’s liability in state class-action suits. This year promises to be an important one, with consumer safety and corporate liability expected to be major themes. Alliance for Justice has released its report on what we can expect to see this term. It’s available online here.

The Court will hear arguments about whether tobacco and drug companies can shield themselves from liability, whether the executive branch can detain an individual indefinitely without criminal charge or trial, and whether employers can retaliate against workers who report or participate in investigations related to sex-based discrimination.

Media Matters Chastizes Chuck Todd

Media Matters has taken NBC Political Director Chuck Todd to task for misleading statements he made on Hardball with Chris Matthews yesterday. According to their website, Mr. Todd referred to the Ninth Circuit Court of Appeals as the most liberal in the nation, claiming that its justices want to do away with the Pledge of Allegiance. This as Media Matters points out is categorically false. The case in reference here was Newdow v. U.S. Congress, in which a three-judge panel deemed that the phrase “under God” was a violation of the Establishment Clause. The court made no other assertions about the pledge.

To see Media Matters’ entire statement and story, click here.

Report Shows Courts Hostile to Discrimination Claims

Last month, the District Court of the District of Columbia released a landmark decision, citing the Library of Congress for discriminating against a transgender woman. The decision in this case, brought by Diane Schroer, was the first such recognition by a federal court of sex-based discrimination towards the transgender community. Ms. Schroer, who had served for several years in the military, was hired by the Library of Congress as a resident terrorism expert. When she, then still physically male, informed her supervisors of her intent to have sexual-reassignment surgery, her offer was rescinded.

While this decision by Clinton-appointed Judge James Robertson is groundbreaking, many Americans find the federal court system much less hospitable to their discrimination claims. After eight years of conservative judicial appointments by President Bush, people from all walks of life are finding the courts more hostile to their claims of mistreatment. Probably the most notable of these cases is last year’s Ledbetter v. Goodyear Rubber & Tire, in which the Supreme Court dismissed Lilly Ledbetter’s discrimination suit because, according to the five conservative justices, she had missed the filing deadline.

Ms. Ledbetter is one of many American workers harmed by increasingly conservative courts. The American Constitution Society recently hosted a discussion on a Harvard Law Review article, which found that “as a result of the likelihood of unfavorable rulings,” the number of discrimination suits filed fell 37 percent between 1999 and 2007. The article also found that “the win rate for plaintiffs in job discrimination cases…was [only] 15 percent,” compared to 51 percent for non-job related cases.

Studies like this serve to highlight the damage done by the Bush administration’s judicial selection program. Alliance for Justice will soon release its final report on Bush’s last eight years, but it looks like ACS has already given us a disturbing preview.

Reagan Appointees Criticize Scalia Activism

Following the June release of the Supreme Court’s decision in District of Columbia v. Heller, Alliance for Justice noted that the five conservative justices who signed onto the majority opinion ignored precedent and decided the case solely on the basis of conservative ideology. We noted the hypocrisy of the opinion, written by Justice Antonin Scalia, probably the justice most critical of so-called “judicial activism,” which set aside almost 200 years of precedent to reinterpret the Second Amendment as a guarantee of individual gun ownership. Now, it seems two prominent conservative judges share our view.

According to an Associated Press article, Fourth Circuit judge J. Harvie Wilkinson and Seventh Circuit Judge Richard Posner, both Reagan appointees and noted conservative legal scholars, have publicly criticized Justice Scalia “for engaging in the same sort of judicial activism he regularly disdains.” Judge Wilkinson, who President Bush considered for a Supreme Court appointment in 2005, suggests that “the 5-4 decision in Heller…would have come out differently if he had been chosen for the court.” Judge Posner wrote in an article in The New Republic last month that “[t]he decision…is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology.”

We’re glad that the irony isn’t lost on everybody. Justice Scalia frequently touts his doctrine of “originalism,” repeating it to University of Minnesota students just last week. Yet, as we’ve seen time and again, he is more than willing to set aside his originalist principles if it means strengthening conservative doctrine. Maybe now we can move past the debate over code-words like “judicial activists” and “strict constructionists.” But, we won’t be holding our breath.