Drug manufacturers shouldn't be immune if products cause harm
The Portland Press Herald
Merely citing federal approval for some uses doesn't mean all possible ones are protected.
NAN ARON and SHARON TREAT
December 30, 2008
Imagine that you went to an emergency room for treatment of a migraine headache and were given a drug that caused gangrene so that your arm had to be amputated.
And then the drug company, supported by the Bush administration, claimed that the right to recover damages that has existed in your state for hundreds of years has been eliminated?
This is exactly what happened to Diana Levine, a professional musician in Marshfield, Vt.
Now, Maine's two senators, Susan Collins and Olympia Snowe, will play a key role in the new Congress as it decides whether this could happen to any user of prescription drugs or medical devices in Maine and other states.
In Levine's case, a Vermont jury and the state's Supreme Court ruled that Wyeth Pharmaceutical, the company that made the drug, should be held accountable for its failure to warn doctors about the risk of gangrene when administering the medicine by an intravenous push injection.
This intravenous injection had led to serious complications in at least 20 previous patients.
The U.S. Supreme Court, however, has now agreed to rule on a new legal theory put forward by Wyeth. Wyeth claims that Levine can't sue because the U.S. Food and Drug Administration approved the drug for marketing.
This isn't much different from saying that if your car is rammed on Tukey's Bridge, the other driver can't be held accountable in court because he or she has a driver's license giving permission to be on the road.
So far, the U.S. Supreme Court has sent mixed messages on whether it will take away our traditional right to hold the makers of unsafe products accountable in the state courts.
On Dec. 15, the court by a 5-4 vote upheld the right of three Maine residents to sue Philip Morris and its parent company for deceptive marketing of "light" or "low tar" cigarettes.
In that case, Attorney General Steven Rowe successfully argued that regulation of such sales falls under the state of Maine's public-health police powers.
The tobacco manufacturers had maintained that federal labeling laws pre-empt, or bar, such lawsuits at the state level.
This ruling was in stark contrast to a similar case decided earlier this year. In that decision, the high court ruled that Americans can no longer sue corporations that manufacture medical devices such as defibrillators, heart pumps, artificial heart valves, hips and knees if the FDA gave permission to market the product.
Corporations' attack on Americans' long-established legal rights has been supported by the Bush administration, even though the FDA's own experts wrote in a 2003 memo that agency approval to market is based only on the evidence available at the time. Much of that comes from the manufacturers themselves and is based on very short clinical trials.
Many drugs and medical devices that were marketed with federal permission were later found to have caused serious health damage, including Vioxx, Zoloft, Fen-Phen, Avandia and Celebrex.
The Bush administration has inserted this new "hit and run" protection for big corporations into more than 60 regulations during the past eight years – removing a powerful incentive for manufacturers to make sure a medication, car seat, crib, toy or other product is safe.
Fortunately, as soon as the new Congress convenes, Collins and Snowe, along with President-elect Barack Obama, will have the opportunity to help enact legislation to make it even clearer that federal regulators' approval to market does not relieve manufacturers of responsibility to make safe products nor remove their accountability in court for injuries such as those suffered by Diana Levine.
Obama also will have the opportunity to appoint – with support from Collins and Snowe – federal judges at all levels, including the Supreme Court, who understand that our legal system is supposed to protect the rights and health of everyone in Maine and the rest of America and not just corporate special interests.
Tuesday, December 30, 2008
Nan Aron Op-Ed Makes Portland Press Herald
Friday, December 19, 2008
The Bush Administration Has Some Lovely Parting Gifts for Us
Today, the federal Department of Health and Human services published a rule -- effective the day before President-elect Obama is inaugurated, just for a little extra fun -- that will diminish women's access to abortion, contraception, and other reproductive health care in federally-funded programs.
This regulation risks interfering with state laws that have sought to make emergency contraception more accessible to women in order to prevent more unintended pregnancies -- a goal that should have nearly universal support. This new regulation is part of a spate of last-minute regulations that implement the outgoing administration's ultraconservative agenda, both with respect to social issues like reproductive health care and many other issues, like the ability of consumers to sue in court when they are harmed by unsafe products.
Many of these new regulations are escaping public attention as the media focus on the transition to the new administration and the numerous overarching problems -- like the economy and the war in Iraq -- that have been left for the new administration to deal with. But these new regulations create new problems and obstacles for the Obama administration to expend resources to resolve -- resources that could be better utilized elsewhere. So the regulation issued yesterday, whose immediate impact will be felt by women who have contact with reproductive health care services that obtain federal funds, will have an impact on the Obama administration's capacity to achieve the policy agenda it was elected to put into action, and hence on everyone who stood to benefit from those policies -- from consumers, to workers, to women seeking equal rights, to people reeling from the economic downturn.
We who have witnessed the damage done by President Bush to our nation's courts -- damage that will take decades to undo and reverse -- are not surprised that Bush has taken this last opportunity to advance his agenda. Moreover, these regulations are in keeping with the duplicity of the Bush administration: the regulations are being issued in contravention of a directive issued earlier this year by former Chief of Staff Joshua Bolten to require all new regulations, except in "extraordinary circumstances," to submit proposed regulations by June 1, 2008. But maybe that was the rule only when they thought another Republican might be elected to the White House.
This regulation risks interfering with state laws that have sought to make emergency contraception more accessible to women in order to prevent more unintended pregnancies -- a goal that should have nearly universal support. This new regulation is part of a spate of last-minute regulations that implement the outgoing administration's ultraconservative agenda, both with respect to social issues like reproductive health care and many other issues, like the ability of consumers to sue in court when they are harmed by unsafe products.
Many of these new regulations are escaping public attention as the media focus on the transition to the new administration and the numerous overarching problems -- like the economy and the war in Iraq -- that have been left for the new administration to deal with. But these new regulations create new problems and obstacles for the Obama administration to expend resources to resolve -- resources that could be better utilized elsewhere. So the regulation issued yesterday, whose immediate impact will be felt by women who have contact with reproductive health care services that obtain federal funds, will have an impact on the Obama administration's capacity to achieve the policy agenda it was elected to put into action, and hence on everyone who stood to benefit from those policies -- from consumers, to workers, to women seeking equal rights, to people reeling from the economic downturn.
We who have witnessed the damage done by President Bush to our nation's courts -- damage that will take decades to undo and reverse -- are not surprised that Bush has taken this last opportunity to advance his agenda. Moreover, these regulations are in keeping with the duplicity of the Bush administration: the regulations are being issued in contravention of a directive issued earlier this year by former Chief of Staff Joshua Bolten to require all new regulations, except in "extraordinary circumstances," to submit proposed regulations by June 1, 2008. But maybe that was the rule only when they thought another Republican might be elected to the White House.
Wednesday, December 17, 2008
Good News, Bad News as Guantanamo Anniversary Approaches
While the facility is still open, and America’s reputation continues to be tarnished, opponents of the Bush administration’s detention camp at Guantanamo have reason to celebrate today. Three of the five Bosnian detainees ordered released last month by District Judge Richard Leon were returned to their families yesterday evening. After seven years in captivity, the men were finally allowed to challenge their detention in federal habeas proceedings, and were at last vindicated.
Ironically, the man whose Supreme Court case was the impetus for yesterday’s happy news remains stuck in Guantanamo’s limbo. Lakhdar Boumediene, along with the fifth man Saber Lahmar did not return home with the others. According to the Associated Press, the lawyers for the men suggest that they were left behind because neither has Bosnian citizenship. Considering how difficult it has been for the government to find countries willing to accept former detainees, it is impossible to say how long they will have to wait for release. It seems that for these men, justice will continue to be delayed.
Ironically, the man whose Supreme Court case was the impetus for yesterday’s happy news remains stuck in Guantanamo’s limbo. Lakhdar Boumediene, along with the fifth man Saber Lahmar did not return home with the others. According to the Associated Press, the lawyers for the men suggest that they were left behind because neither has Bosnian citizenship. Considering how difficult it has been for the government to find countries willing to accept former detainees, it is impossible to say how long they will have to wait for release. It seems that for these men, justice will continue to be delayed.
Monday, December 15, 2008
Supreme Court Decision Victory for Consumer Rights
In a surprising turn of events, the Supreme Court sided with consumers today in a narrow 5-4 decision that allows a lawsuit filed against tobacco companies by smokers in Maine to move forward. The case, Altria Group v. Good, was the first to be argued this term and was widely publicized as one of the most important consumer right’s cases of the year. The plaintiffs in the case originally filed suit because they claimed that tobacco companies misled the public in advertisings for “light” cigarettes, despite the fact that the companies knew they were just as dangerous as regular ones.
During oral arguments, the justices hearing the case seemed open to the argument advanced by Altria's lawyer, former Solicitor General Ted Olsen (of Bush v. Gore fame), that FTC regulations preempt state laws, including Maine’s Unfair Trade Practices Act. But it turns out Justice Stevens, along with Justices Souter, Ginsburg, Breyer and Kennedy didn’t buy it. Writing for the majority, Justice Stevens said that federal labeling laws would not immunize tobacco companies from suits stemming from deceptive advertising. Of course, the Court’s conservative bloc continued its track record of siding with corporations, and all four voted to toss the suit.
In a statement released this afternoon, AFJ President Nan Aron said that “while today’s decision is a triumph for consumers, it is also an alarming reminder of how close we are to a Supreme Court that puts corporate interests ahead of the rights of ordinary Americans. Though the members of the Court’s conservative bloc pay lip service at the altar of states’ rights when it suits their agenda, they were all too willing to overturn a state law in order protect Big Tobacco’s bottom line.” She went on to say that today’s split decision “illustrates the next administration’s important task of nominating judges and justices who will put the law and interests of ordinary Americans ahead of a pro-corporate agenda”
During oral arguments, the justices hearing the case seemed open to the argument advanced by Altria's lawyer, former Solicitor General Ted Olsen (of Bush v. Gore fame), that FTC regulations preempt state laws, including Maine’s Unfair Trade Practices Act. But it turns out Justice Stevens, along with Justices Souter, Ginsburg, Breyer and Kennedy didn’t buy it. Writing for the majority, Justice Stevens said that federal labeling laws would not immunize tobacco companies from suits stemming from deceptive advertising. Of course, the Court’s conservative bloc continued its track record of siding with corporations, and all four voted to toss the suit.
In a statement released this afternoon, AFJ President Nan Aron said that “while today’s decision is a triumph for consumers, it is also an alarming reminder of how close we are to a Supreme Court that puts corporate interests ahead of the rights of ordinary Americans. Though the members of the Court’s conservative bloc pay lip service at the altar of states’ rights when it suits their agenda, they were all too willing to overturn a state law in order protect Big Tobacco’s bottom line.” She went on to say that today’s split decision “illustrates the next administration’s important task of nominating judges and justices who will put the law and interests of ordinary Americans ahead of a pro-corporate agenda”
Thursday, December 11, 2008
AT&T Uses Ledbetter to Justify Discrimination
The Supreme Court’s disgraceful decision in Ledbetter v. Goodyear Tire, and the precedent that it set, just will not seem to go away. During oral arguments yesterday in AT&T v. Hulteen, the case continued to rear its ugly head as telecom giant AT&T referenced it several times as a sort of get-out-of-jail-free card for its discriminatory actions toward Noreen Hulteen and three other former female employees. Just another example of the wide-spread damage done by that decision.
Ms. Hulteen’s case, originally brought in the Ninth Circuit, centered around AT&T’s pension calculations for the four women. Ms. Hulteen and her colleagues had all taken maternity leave between 1968 and 1976, fully expecting that they would not be penalized for doing so. When the time came to cash in their pension plans however, they discovered that their employer had docked them for their leave, subtracting that time from the pensions they were owed.
Carter G. Philips, arguing on behalf of AT&T said that the company was within its rights to withhold this pay for two reasons: a) the women took their maternity leave before the Pregnancy Discrimination Act was passed in 1978 and b) according to the Court’s own decision in Ledbetter, the women would have had to sue when the discrimination first occurred, 30 years ago, to have a case. Of course, as Justice Ginsburg pointed out, the women would have had no reason to sue then because “nothing had happened to them except…a bookkeeping entry.”
Interestingly enough, some of the justices did not seem too eager to follow the precedent set by the Ledbetter decision and instead referenced the 1986 decision, Bazemore v. Friday. In Bazemore, former justice William Brennan wrote, “Each week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII regardless of the fact that this pattern was begun prior to the effective date of Title VII.” Mr. Philips did acknowledged similarities between the cases, but continued to suggest that Ledbetter was a better fit.
And just in case you thought that the damage caused by Ledbetter was limited solely to cases stemming from Title VII, think again. The case also seems to have deligitimized the Equal Employment Opportunity Commission too -- at least in the opinion of Assistant Attorney General Lisa Blatt who argued in support of AT&T’s position. Asked why the government was taking such a contrary view from the EEOC, which supported the four women’s claim, Ms. Blatt replied that Ledbetter showed that the commission’s views warrant “no special deference.”
A decision in this case is not expected before June of next year. Meanwhile, Democrats and progressive groups across the country are pushing for the passage of the Lilly Ledbetter Fair Pay Restoration Act which would repair the damage done by the Court’s 2007 decision. President-elect Barack Obama stated many times during the campaign that he believes whole-heartedly in equal pay for equal work. Hopefully his support, along with the support of the newly elected members of Congress will mean we can finally put this ugly chapter behind us.
Ms. Hulteen’s case, originally brought in the Ninth Circuit, centered around AT&T’s pension calculations for the four women. Ms. Hulteen and her colleagues had all taken maternity leave between 1968 and 1976, fully expecting that they would not be penalized for doing so. When the time came to cash in their pension plans however, they discovered that their employer had docked them for their leave, subtracting that time from the pensions they were owed.
Carter G. Philips, arguing on behalf of AT&T said that the company was within its rights to withhold this pay for two reasons: a) the women took their maternity leave before the Pregnancy Discrimination Act was passed in 1978 and b) according to the Court’s own decision in Ledbetter, the women would have had to sue when the discrimination first occurred, 30 years ago, to have a case. Of course, as Justice Ginsburg pointed out, the women would have had no reason to sue then because “nothing had happened to them except…a bookkeeping entry.”
Interestingly enough, some of the justices did not seem too eager to follow the precedent set by the Ledbetter decision and instead referenced the 1986 decision, Bazemore v. Friday. In Bazemore, former justice William Brennan wrote, “Each week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII regardless of the fact that this pattern was begun prior to the effective date of Title VII.” Mr. Philips did acknowledged similarities between the cases, but continued to suggest that Ledbetter was a better fit.
And just in case you thought that the damage caused by Ledbetter was limited solely to cases stemming from Title VII, think again. The case also seems to have deligitimized the Equal Employment Opportunity Commission too -- at least in the opinion of Assistant Attorney General Lisa Blatt who argued in support of AT&T’s position. Asked why the government was taking such a contrary view from the EEOC, which supported the four women’s claim, Ms. Blatt replied that Ledbetter showed that the commission’s views warrant “no special deference.”
A decision in this case is not expected before June of next year. Meanwhile, Democrats and progressive groups across the country are pushing for the passage of the Lilly Ledbetter Fair Pay Restoration Act which would repair the damage done by the Court’s 2007 decision. President-elect Barack Obama stated many times during the campaign that he believes whole-heartedly in equal pay for equal work. Hopefully his support, along with the support of the newly elected members of Congress will mean we can finally put this ugly chapter behind us.
Wednesday, December 10, 2008
Refocusing the Guantanamo Debate
Yesterday, Wall Street Journal columnist William McGurn made an interesting point (though our interpretation of it may not be exactly what he had in mind). Pointing to recent news headlines hinting that the Obama administration must carefully decide how to close the detention facility at Guantanamo Bay, as well as to the recent confessions of four men currently held there, McGurn observed that those developments are proof that the the problem with Gitmo "is the people, not the place."
For once, we could not agree more. The problem is the people: the people operating the facility and denying detainees their right to a fair trial.
We know those are not the same people McGurn had in mind. He was thinking of the presumed-guilty-before-you're-proven-innocent enemy combatants detained at Gitmo because it was "thought to be the best way to protect the American people." But those are not the individuals who have tried to sidestep the Constitution, so it's hard to blame them for the predicament the Bush administration has created. Even if, as McGurn argues, the administration did not establish the facility at Guantanamo Bay because it was "out to shred the Constitution," that is exactly what the administration has tried to do time and time again. Torture. Holding detainees without access to attorneys or the courts. Illegally wiretapping Americans. The list goes on and on.
Justice Anthony Kennedy once wrote, “the laws and Constitution are designed to survive, and remain in force, [even] in extraordinary times.” We do not dispute that terrorism and the threat of future violence is real, and we are certainly living in extraordinary times. It is a solemn responsibility to protect the lives of Americans from such threats and it is a difficult task. But, as Justice Kennedy advises, these threats do not give the government a license to turn its back on the Constitution.
The Obama administration must reverse course and abandon the Bush administration's view that the Constitution is an obstacle to be evaded. As he works to close Guantanamo Bay and address the problems we will face in the years ahead, President-elect Obama and his team must couple efforts to protect the safety of all Americans with the desire to defend the constitutional rights we cherish.
For once, we could not agree more. The problem is the people: the people operating the facility and denying detainees their right to a fair trial.
We know those are not the same people McGurn had in mind. He was thinking of the presumed-guilty-before-you're-proven-innocent enemy combatants detained at Gitmo because it was "thought to be the best way to protect the American people." But those are not the individuals who have tried to sidestep the Constitution, so it's hard to blame them for the predicament the Bush administration has created. Even if, as McGurn argues, the administration did not establish the facility at Guantanamo Bay because it was "out to shred the Constitution," that is exactly what the administration has tried to do time and time again. Torture. Holding detainees without access to attorneys or the courts. Illegally wiretapping Americans. The list goes on and on.
Justice Anthony Kennedy once wrote, “the laws and Constitution are designed to survive, and remain in force, [even] in extraordinary times.” We do not dispute that terrorism and the threat of future violence is real, and we are certainly living in extraordinary times. It is a solemn responsibility to protect the lives of Americans from such threats and it is a difficult task. But, as Justice Kennedy advises, these threats do not give the government a license to turn its back on the Constitution.
The Obama administration must reverse course and abandon the Bush administration's view that the Constitution is an obstacle to be evaded. As he works to close Guantanamo Bay and address the problems we will face in the years ahead, President-elect Obama and his team must couple efforts to protect the safety of all Americans with the desire to defend the constitutional rights we cherish.
Tuesday, December 9, 2008
AFJ President Nan Aron on Huffington Post
The End of Legal Limbo
When Mr. Ali Saleh Kahlah al-Marri legally brought his wife and children from Qatar to Peoria, Illinois, on September 10, 2001, he had planned to earn a master's degree from his undergraduate alma mater, Bradley University. Instead, he began a Kafkaesque odyssey that has now made its way to the U.S. Supreme Court.
In December 2001, Mr. al-Marri was arrested by the FBI as a "material witness" in the 9/11 investigation, a designation that allows the government to detain people for months without any criminal charges. He has been imprisoned ever since, enduring many of the Bush administration's various and often clumsy schemes to avoid allowing a court to decide his guilt or innocence. In 2003, the federal government charged Mr. al-Marri with possession of unauthorized or counterfeit credit card numbers, but not with violent terrorism. In June of 2003, just before a federal judge was to hold a hearing on various motions in the credit cards case - including one asserting that evidence had been obtained from Mr. al-Marri by torture - President Bush intervened to prevent Mr. al-Marri from having his day in court. The president ordered the dismissal of all criminal charges against Mr. al-Marri so that the Secretary of Defense could take custody of him as an "enemy combatant" associated with al Qaeda.
In the year after he became an "enemy combatant," Mr. al-Marri was not permitted to communicate with anyone -- including his lawyers and his family. His effort to have his detention tested under the writ of habeas corpus was rejected by District Judge Henry F. Floyd -- an appointee of President George W. Bush. When he appealed that decision to the Fourth Circuit, he succeeded before a panel of three judges consisting of two judges appointed by President Clinton, and one district judge appointed by President George W. Bush. That decision was 2-1, with the Bush appointee dissenting. But, as often happens in the Fourth Circuit, when a three-judge panel does not adhere to the court's ultraconservative ideology, the panel's decision is reviewed by the full court -- for Mr. al-Marri, this meant nine circuit judges would sit in judgment over his request to have his day in court: four ultraconservative judges, four progressive judges, and one centrist. In Mr. al-Marri's case, the centrist judge --originally appointed as a district judge by President George H.W. Bush, and then elevated to the Fourth Circuit by President Bill Clinton, sided with the ultraconservative bloc. The result was a decision that the President has the authority to detain anyone properly designated as an "enemy combatant" -- including a U.S. citizen or legal resident -- for as long as he sees fit.
Last week, the Supreme Court agreed to review the Fourth Circuit's decision, a choice that raises two major themes of Bush's presidency: the expansion of the President's power to govern more like an absolute monarch than like the head of a democratic government; and the administration's courtpacking program. The Supreme Court's decision to take up this case presents the opportunity for the incoming Obama administration to begin to reverse course.
The government's briefs in Mr. al-Marri's case are due no earlier than February 18, 2009, well after President-elect Obama is inaugurated. It is not easy for a President to disavow greater presidential power. Nor is it easy for the Department of Justice to abandon legal arguments made repeatedly to numerous courts and judges. But the new administration can help restore the rule of law by frankly telling the Supreme Court that Mr. al-Marri is a civilian, not an enemy combatant -- albeit one who may have committed serious crimes. And if there is real evidence he committed those crimes, he should go on trial and let a judge and jury reach its decision.
Beyond that, this case underscores the need for President-elect Obama to appoint judges who will be skeptical of presidential power, both his own and that of future presidents. Because federal judges serve lifetime appointments, they will sit in judgment over the actions of many presidents, with various political agendas. The most important criterion must be adherence to the constitutional values, such as the right of someone held in government custody to be tried for a crime or released from confinement - a right embodied in the writ of habeas corpus recently upheld by the Supreme Court in a closely divided 5-4 decision.
We look forward to the day when this right is enforced by a unanimous Supreme Court, at the urging of the Justice Department. The new administration can bring us a step closer to that day.
When Mr. Ali Saleh Kahlah al-Marri legally brought his wife and children from Qatar to Peoria, Illinois, on September 10, 2001, he had planned to earn a master's degree from his undergraduate alma mater, Bradley University. Instead, he began a Kafkaesque odyssey that has now made its way to the U.S. Supreme Court.
In December 2001, Mr. al-Marri was arrested by the FBI as a "material witness" in the 9/11 investigation, a designation that allows the government to detain people for months without any criminal charges. He has been imprisoned ever since, enduring many of the Bush administration's various and often clumsy schemes to avoid allowing a court to decide his guilt or innocence. In 2003, the federal government charged Mr. al-Marri with possession of unauthorized or counterfeit credit card numbers, but not with violent terrorism. In June of 2003, just before a federal judge was to hold a hearing on various motions in the credit cards case - including one asserting that evidence had been obtained from Mr. al-Marri by torture - President Bush intervened to prevent Mr. al-Marri from having his day in court. The president ordered the dismissal of all criminal charges against Mr. al-Marri so that the Secretary of Defense could take custody of him as an "enemy combatant" associated with al Qaeda.
In the year after he became an "enemy combatant," Mr. al-Marri was not permitted to communicate with anyone -- including his lawyers and his family. His effort to have his detention tested under the writ of habeas corpus was rejected by District Judge Henry F. Floyd -- an appointee of President George W. Bush. When he appealed that decision to the Fourth Circuit, he succeeded before a panel of three judges consisting of two judges appointed by President Clinton, and one district judge appointed by President George W. Bush. That decision was 2-1, with the Bush appointee dissenting. But, as often happens in the Fourth Circuit, when a three-judge panel does not adhere to the court's ultraconservative ideology, the panel's decision is reviewed by the full court -- for Mr. al-Marri, this meant nine circuit judges would sit in judgment over his request to have his day in court: four ultraconservative judges, four progressive judges, and one centrist. In Mr. al-Marri's case, the centrist judge --originally appointed as a district judge by President George H.W. Bush, and then elevated to the Fourth Circuit by President Bill Clinton, sided with the ultraconservative bloc. The result was a decision that the President has the authority to detain anyone properly designated as an "enemy combatant" -- including a U.S. citizen or legal resident -- for as long as he sees fit.
Last week, the Supreme Court agreed to review the Fourth Circuit's decision, a choice that raises two major themes of Bush's presidency: the expansion of the President's power to govern more like an absolute monarch than like the head of a democratic government; and the administration's courtpacking program. The Supreme Court's decision to take up this case presents the opportunity for the incoming Obama administration to begin to reverse course.
The government's briefs in Mr. al-Marri's case are due no earlier than February 18, 2009, well after President-elect Obama is inaugurated. It is not easy for a President to disavow greater presidential power. Nor is it easy for the Department of Justice to abandon legal arguments made repeatedly to numerous courts and judges. But the new administration can help restore the rule of law by frankly telling the Supreme Court that Mr. al-Marri is a civilian, not an enemy combatant -- albeit one who may have committed serious crimes. And if there is real evidence he committed those crimes, he should go on trial and let a judge and jury reach its decision.
Beyond that, this case underscores the need for President-elect Obama to appoint judges who will be skeptical of presidential power, both his own and that of future presidents. Because federal judges serve lifetime appointments, they will sit in judgment over the actions of many presidents, with various political agendas. The most important criterion must be adherence to the constitutional values, such as the right of someone held in government custody to be tried for a crime or released from confinement - a right embodied in the writ of habeas corpus recently upheld by the Supreme Court in a closely divided 5-4 decision.
We look forward to the day when this right is enforced by a unanimous Supreme Court, at the urging of the Justice Department. The new administration can bring us a step closer to that day.
Monday, December 8, 2008
Supreme Court Won't Consider Obama's Citizenship
From Scotusblog:
In a brief order, the Court, as expected, turned aside a New Jersey voter’s plea for the Court to determine if President-elect Barack Obama was qualified to run for the White House — that is whether he was a “natural born citizen.” The stay application came in the case of Donofrio v. Wells, Secretary of State of New Jersey (08A407). This marked the second time in recent weeks for the Court to turn aside such a challenge; the first came on Nov. 3, in Berg v. Obama (08A391). The Court, in neither instance, gave reasons for turning down the applications.
Friday, December 5, 2008
Ninth Circuit Deals Blow to ‘Don’t Ask, Don’t Tell’
On Thursday, the Ninth Circuit denied the Air Force’s request for the full court to review an earlier decision against the military’s “don’t ask, don’t tell” policy. In May, a three-judge panel determined that the Supreme Court’s 2003 Lawrence v. Texas decision granted new protections to gays and lesbians and as a result, the military could not discharge servicemembers just because they were gay. The ruling stated that the military would have to demonstrate specific cases in which a servicemember’s sexuality disrupted so-called unit cohesion.
According to the San Francisco Chronicle, yesterday’s decision not to rehear the case could give President-elect Obama an opportunity to repeal the policy, which he opposed during his campaign. The Air Force now has 90 days to appeal to the Supreme Court or let the decision become settled law within the states that make up the Ninth Circuit. Even if the Bush administration appeals the decision, the case most likely would not be heard until Barack Obama takes office, giving him an opportunity to withdraw the appeal. We’ll be sure to keep you posted on any developments in this exciting case.
According to the San Francisco Chronicle, yesterday’s decision not to rehear the case could give President-elect Obama an opportunity to repeal the policy, which he opposed during his campaign. The Air Force now has 90 days to appeal to the Supreme Court or let the decision become settled law within the states that make up the Ninth Circuit. Even if the Bush administration appeals the decision, the case most likely would not be heard until Barack Obama takes office, giving him an opportunity to withdraw the appeal. We’ll be sure to keep you posted on any developments in this exciting case.
Thursday, December 4, 2008
Supreme Court to Consider Obama Citizenship?
So it appears that the Supreme Court will consider whether to accept a case challenging the citizenship of Barack Obama – and by proxy, his eligibility to serve as President of the United States. By now, everyone is pretty familiar with the president-elect’s background: son of a Kenyan man and a Kansan woman, born in Hawaii and raised in Indonesia and the Midwest.
Well, it appears that some conservative conspiracy theorists are not yet ready to concede the election. The case on the Supreme Court’s docket (the justices will decide tomorrow whether they will hear it) is one of many that feature various claims like President-elect Obama’s Hawaiian birth certificate is a forgery, or he denounced his U.S. citizenship while living in Indonesia. All of this is, of course, a way to keep our newly elected president out of the White House – the Constitution reads that you must be a “naturally born citizen” to take the highest office.
The Supreme Court declined to hear a case in August, which attempted to prevent the Democratic National Committee from nominating Barack Obama by questioning his citizenship. The court sided with a lower-court’s dismissal of the case because the man who filed it “lacked standing.” It remains unclear whether the justices will agree to hear this most recent case or not.
Interestingly enough, Sen. John McCain was not born within the natural boundaries of the United States. He was born on a military base in Panama. But, as some of you may recall, the Democratic-controlled Congress unanimously passed a resolution saying that he was eligible to run for the presidency. Now conservative activists don’t seem interested in sharing the courtesy. Nothing like being gracious losers, eh?
Update (12/05/08, 3:35pm): The Supreme Court released two orders today, neither of which dealt with this particular case. We will keep you updated if any new developments arise.
Well, it appears that some conservative conspiracy theorists are not yet ready to concede the election. The case on the Supreme Court’s docket (the justices will decide tomorrow whether they will hear it) is one of many that feature various claims like President-elect Obama’s Hawaiian birth certificate is a forgery, or he denounced his U.S. citizenship while living in Indonesia. All of this is, of course, a way to keep our newly elected president out of the White House – the Constitution reads that you must be a “naturally born citizen” to take the highest office.
The Supreme Court declined to hear a case in August, which attempted to prevent the Democratic National Committee from nominating Barack Obama by questioning his citizenship. The court sided with a lower-court’s dismissal of the case because the man who filed it “lacked standing.” It remains unclear whether the justices will agree to hear this most recent case or not.
Interestingly enough, Sen. John McCain was not born within the natural boundaries of the United States. He was born on a military base in Panama. But, as some of you may recall, the Democratic-controlled Congress unanimously passed a resolution saying that he was eligible to run for the presidency. Now conservative activists don’t seem interested in sharing the courtesy. Nothing like being gracious losers, eh?
Update (12/05/08, 3:35pm): The Supreme Court released two orders today, neither of which dealt with this particular case. We will keep you updated if any new developments arise.
Tuesday, December 2, 2008
Misplaced Deference
Whenever we feel the need for a chuckle, we can always count on the Wall Street Journal editorial board. This weekend was no exception. Though there are no unicorns or rings forged in Mordor (we think), it seems as though the members of the ed board are constructing some sort of fantasy world.
They suggested that a gesture of bipartisan good will from President-elect Obama would be the eventual renomination of highly controversial judicial nominees, including Steve Matthews and Judge Robert Conrad to the Fourth Circuit. You know, so as not to “play politics with the national security cases that frequently come before that court.” Of course, the Journal conveniently overlooks the fact that President Bush was playing politics by nominating them in the first place.
We are then treated to a discussion of the apparent absurdity of considering a judges ideology. Right. Because clearly ideology isn’t a consideration when selecting lifetime appointees to the federal bench. This contention is ridiculous. Of course ideology matters. It certainly mattered to President Bush, who selected his nominees based on their views. After all, judicial philosophy is critical. On this, senators from both sides of the aisle, legal scholars and even Supreme Court justices agree. Former Chief Justice William Rehnquist, Senators Orrin Hatch and John Cornyn and legal scholars Charles Black and Anthony Lewis, among many others, have noted that considering the views of a nominee is central to evaluating his or her fitness for the bench.
The WSJ also claims that President-elect Obama’s “No” vote on Chief Justice John Roberts is a “skeleton.” First, it is no secret. Second, it is hardly something of which to be ashamed. From fair pay to school desegregation to protecting unfettered presidential power to undermining constitutional and statutory protections, the Chief Justice’s time on the bench only bears out the reasons Barack Obama, and 21 other senators, voted no on the nomination.
The WSJ editorial pages have spent the last eight years crying out for the deferential treatment of a president’s nominees, including speedy hearings and quickly-scheduled up-or-down votes. We are sort of tempted to start a pool on how long it will take them to change their tune. Of course, they are still calling for deference to a president’s nominees. Unfortunately, they are calling for deference to the wrong president.
They suggested that a gesture of bipartisan good will from President-elect Obama would be the eventual renomination of highly controversial judicial nominees, including Steve Matthews and Judge Robert Conrad to the Fourth Circuit. You know, so as not to “play politics with the national security cases that frequently come before that court.” Of course, the Journal conveniently overlooks the fact that President Bush was playing politics by nominating them in the first place.
We are then treated to a discussion of the apparent absurdity of considering a judges ideology. Right. Because clearly ideology isn’t a consideration when selecting lifetime appointees to the federal bench. This contention is ridiculous. Of course ideology matters. It certainly mattered to President Bush, who selected his nominees based on their views. After all, judicial philosophy is critical. On this, senators from both sides of the aisle, legal scholars and even Supreme Court justices agree. Former Chief Justice William Rehnquist, Senators Orrin Hatch and John Cornyn and legal scholars Charles Black and Anthony Lewis, among many others, have noted that considering the views of a nominee is central to evaluating his or her fitness for the bench.
The WSJ also claims that President-elect Obama’s “No” vote on Chief Justice John Roberts is a “skeleton.” First, it is no secret. Second, it is hardly something of which to be ashamed. From fair pay to school desegregation to protecting unfettered presidential power to undermining constitutional and statutory protections, the Chief Justice’s time on the bench only bears out the reasons Barack Obama, and 21 other senators, voted no on the nomination.
The WSJ editorial pages have spent the last eight years crying out for the deferential treatment of a president’s nominees, including speedy hearings and quickly-scheduled up-or-down votes. We are sort of tempted to start a pool on how long it will take them to change their tune. Of course, they are still calling for deference to a president’s nominees. Unfortunately, they are calling for deference to the wrong president.
Subscribe to:
Posts (Atom)