Two days before the anniversary of its decision in Ledbetter v. Goodyear Tire and Rubber Co. -- which has visited high-profile criticism upon the court and sparked corrective legislation in Congress -- the Roberts Court released two more employment discrimination decisions this week. The outcome of the cases came as a big surprise to court-watchers, and Robert Barnes of The Washington Post said it best: “The Supreme Court this week made big news because it hardly changed the law at all.”
In 6-3 and 7-2 decisions, the Court relied on its own precedent to find that civil rights laws do protect against retaliation for complaining about discrimination in the workplace. Chief Justice Roberts voted to protect against reprisals in one case but not the other, and Justice Alito authored one of the majority decisions upholding the right to sue for retaliation.
The uncharacteristically pro-worker decisions puzzled the experts.
Why, after casting vote after vote to benefit big businesses, would Chief Justice Roberts and Justices Alito suddenly veer from the Chamber of Commerce’s position and take a less cramped view of civil rights laws? Why would Justice Alito, the author of the much-maligned decision in Ledbetter, abruptly pivot to now consider claims that are “well-embedded in the law,” given his harsh dismissal of a strikingly similar argument in Ledbetter?
Quizzical about the unexpected deviation, commentators have suggested that perhaps the Ledbetter backlash played a role in this week’s decisions. New York Times reporter Linda Greenhouse posited that maybe “the conservative justices were taken aback by the public response to the Lilly Ledbetter case.” Robin Conrad, Vice President of the U.S. Chamber of Commerce, also hypothesized that they “may be reacting to the criticism of the court” after Ledbetter, saying, “I would have to think there is some connection there because our batting average this term is pretty bad in labor and employment cases.”
Justice Alito’s more generous interpretation of employment discrimination law in this week’s decisions belies not only his votes on the Supreme Court but his long record of hostility to such claims on the Third Circuit. But if his eyes have been opened to the “realities of the workplace” by Lilly Ledbetter’s story, then we certainly owe her a huge debt of gratitude.
Friday, May 30, 2008
Tuesday, May 27, 2008
Daily Dose
- Rove denies interfering in Siegelman case, says courts can settle subpoena showdown [AP via WP, TPMMuckraker, LATimes]
- Editorial: The Kindness of Cronies [NYT]
- Editorial: The Torture Scandal’s Heroes [WP]
- Pay to play: are telecoms attempting to buy amnesty from Congress? [GlennGreenwald]
Friday, May 23, 2008
Daily Dose
- House Judiciary Committee subpoenas Karl Rove [WP, NYT]
- Bush to nominate Petersen to FEC [TheHill]
- What does “exclusive” mean to Yoo?: the OLC’s 2001 take on FISA [WP, TPMMuckraker]
Thursday, May 22, 2008
Still Hope Yet For the Judiciary…
This week, three different circuit courts handed down three seperate positive decisions. On Tuesday, the Fourth Circuit Court of Appeals overturned a Virginia law banning so-called “partial birth abortion.” That same day, the DC Circuit Court of Appeals upheld a lower court ruling stating that the US currency system discriminates against the blind. And on Wednesday, the Ninth Circuit Court of Appeals ordered the reinstatement of an Air Force flight-nurse who had been discharged under the military’s “Don’t Ask, Don’t Tell” policy.
While these decisions are certainly a boon to equal rights and constitutional protections, they seem to be the exception, rather than the rule. The Second Circuit Court of Appeals recently threw out a class-action suit against big tobacco. The Ninth Circuit Court of Appeals has overturned several California laws attempting to cut down on dangerous carbon emissions and extended the reasoning of theSupreme Court's Ledbetter decision to eviscerate the Fair Housing Act. And the Eighth and Fourth Circuit Courts of Appeal have both dismissed workplace discrimination suits resulting from gender and race biases.
Alarmingly, these are just a few examples the many conservative and pro-business decisions coming down lately from almost every circuit court in the country. Alliance for Justice has spent years fighting the movement conservatives’ campaign to pack our courts with ideologues concerned only with furthering their radical right-wing agenda, and President Bush has brought their dream to the brink of success.
Over his eight year tenure, he has appointed more than 30% of the judges currently serving in the judiciary. Ten of the 13 circuit courts are now majority-Republican appointed. While the Supreme Court gets the bulk of the media attention, these circuit courts have a much more prominent role in shaping our nation’s laws – hearing almost 30,000 cases a year, compared to just over 70 for the Supreme Court last term.
As a result, it is crucial that the public educate itself about the role the role these courts play in all of our lives. To learn more about our fight to ensure a fair and independent judiciary, check out our website at http://www.afj.org/connect-with-the-issues/independent-courts-fair-judges.html.
While these decisions are certainly a boon to equal rights and constitutional protections, they seem to be the exception, rather than the rule. The Second Circuit Court of Appeals recently threw out a class-action suit against big tobacco. The Ninth Circuit Court of Appeals has overturned several California laws attempting to cut down on dangerous carbon emissions and extended the reasoning of theSupreme Court's Ledbetter decision to eviscerate the Fair Housing Act. And the Eighth and Fourth Circuit Courts of Appeal have both dismissed workplace discrimination suits resulting from gender and race biases.
Alarmingly, these are just a few examples the many conservative and pro-business decisions coming down lately from almost every circuit court in the country. Alliance for Justice has spent years fighting the movement conservatives’ campaign to pack our courts with ideologues concerned only with furthering their radical right-wing agenda, and President Bush has brought their dream to the brink of success.
Over his eight year tenure, he has appointed more than 30% of the judges currently serving in the judiciary. Ten of the 13 circuit courts are now majority-Republican appointed. While the Supreme Court gets the bulk of the media attention, these circuit courts have a much more prominent role in shaping our nation’s laws – hearing almost 30,000 cases a year, compared to just over 70 for the Supreme Court last term.
As a result, it is crucial that the public educate itself about the role the role these courts play in all of our lives. To learn more about our fight to ensure a fair and independent judiciary, check out our website at http://www.afj.org/connect-with-the-issues/independent-courts-fair-judges.html.
Daily Dose
- Deal on FEC nominees appears to break down [TheHill]
- Despite dissent, interrogation tactics endured [WP, NYT, TPMMuckraker]
- Editorial: What the F.B.I. Agents Saw [NYT]
Wednesday, May 21, 2008
Fourth Circuit Holds Strong on Choice
On Tuesday, the U.S. Court of Appeals for the Fourth Circuit overturned – for the second time – a Virginia law banning so-called "partial birth abortion." The case, Richmond Medical Center v. Herring, involved a criminal ban on the relatively uncommon procedure known by doctors as “intact dilation and extraction.”
The law, which deceptively referred to the procedure as “partial birth infanticide,” was passed by the state legislature in 2003 and overturned for the first time in 2005. But after the Supreme Court upheld a similar federal statute (Gonzales v. Carhart) last year, the Richmond based court of appeals was ordered to reconsider its previous decision.
The three judge panel that considered the case determined in its 2-1 decision that the Virginia ban – as opposed to the federal ban – was unconstitutional because it imposed criminal liability on doctors who performed the procedure without intending to do so. The decision stated that criminalizing the procedure without regard for a doctor’s intent was unduly burdensome and thus unconstitutionally restricted a woman’s right to choose.
While pro-choice groups across the nation were pleased with the decision, a spokesman for Virginia’s Attorney General, Bob McDonnell, said that he is “extremely disappointed with the divided decision” and that the office is “reviewing the panel opinion…and considering all possible courses of action,” including a request for an en banc hearing, the result of which would be uncertain considering that the full circuit tends to be more conservative than the panel of judges that heard this case.
The tremendous importance of the Fourth Circuit , which hears cases from Maryland, North Carolina, South Carolina, Virginia, and West Virginia, has made it a central focus of the Bush administration’s court-packing crusade. Just yesterday, the Senate voted to confirm G. Steven Agee to a seat on the court and there are four other nominees still pending before the Judiciary Committee. These nominations could tilt the balance of this crucial court for decades to come.
To learn more about the state of the Fourth Circuit, check out our new fact sheet here.
The law, which deceptively referred to the procedure as “partial birth infanticide,” was passed by the state legislature in 2003 and overturned for the first time in 2005. But after the Supreme Court upheld a similar federal statute (Gonzales v. Carhart) last year, the Richmond based court of appeals was ordered to reconsider its previous decision.
The three judge panel that considered the case determined in its 2-1 decision that the Virginia ban – as opposed to the federal ban – was unconstitutional because it imposed criminal liability on doctors who performed the procedure without intending to do so. The decision stated that criminalizing the procedure without regard for a doctor’s intent was unduly burdensome and thus unconstitutionally restricted a woman’s right to choose.
While pro-choice groups across the nation were pleased with the decision, a spokesman for Virginia’s Attorney General, Bob McDonnell, said that he is “extremely disappointed with the divided decision” and that the office is “reviewing the panel opinion…and considering all possible courses of action,” including a request for an en banc hearing, the result of which would be uncertain considering that the full circuit tends to be more conservative than the panel of judges that heard this case.
The tremendous importance of the Fourth Circuit , which hears cases from Maryland, North Carolina, South Carolina, Virginia, and West Virginia, has made it a central focus of the Bush administration’s court-packing crusade. Just yesterday, the Senate voted to confirm G. Steven Agee to a seat on the court and there are four other nominees still pending before the Judiciary Committee. These nominations could tilt the balance of this crucial court for decades to come.
To learn more about the state of the Fourth Circuit, check out our new fact sheet here.
Tuesday, May 20, 2008
Von Spakovsky Plays the Victim
Last week, Hans von Spakovsky, President Bush’s controversial nominee to the Federal Election Commission (FEC), withdrew his name from consideration for the post. Today, he wrote an op-ed in the Wall Street Journal in which he claimed to be the victim of a systematic smear campaign by Senate Democrats and “liberal beltway advocacy groups.”
It’s true that Mr. von Spakovsky faced staunch opposition by several progressive organizations, as well as many Democratic senators, but in truth he is simply the victim of his own hyper-partisan beliefs.
In fact, Alliance for Justice was one of the many organizations that opposed Mr. von Spakovsky’s nomination to the FEC. In an April 30th blog post, we cited his leadership of the Justice Department’s Voting Rights Section as the reason for our opposition.
It’s true that Mr. von Spakovsky faced staunch opposition by several progressive organizations, as well as many Democratic senators, but in truth he is simply the victim of his own hyper-partisan beliefs.
In fact, Alliance for Justice was one of the many organizations that opposed Mr. von Spakovsky’s nomination to the FEC. In an April 30th blog post, we cited his leadership of the Justice Department’s Voting Rights Section as the reason for our opposition.
This section, which is responsible for enforcing the Voting Rights Act, has historically focused on ensuring that local authorities did not impede minorities from participating in the electoral process. Under Mr. von Spakovsky however, it shifted priorities from protecting voters’ rights to rooting out so-called cases of voter fraud. This transition in focus is one of the problems that led to many of the allegations of politicization at the Justice Department.In his editorial, Mr. von Spakovsky defends his focus on voter-fraud and particularly his position on voter identification laws, citing the recent Supreme Court decision upholding Indiana’s voter ID law as justification. He claims that he is “still being called…a ‘vote suppressor’ because [he] agree[s] with the Supreme Court on the constitutionality of voter ID laws.” But as we pointed out in that same April 30th post, just because the Supreme Court says that requiring voter identification is legal, does not make it good policy.
Conservatives argue that laws like this are meant to protect against voter fraud. But the truth is that their efforts provide a solution to a problem that doesn’t actually exist. Instead, these voter ID requirements risk disenfranchising thousands of voters, disproportionately affecting racial minorities, the poor, the elderly, and the disabled - all of whom are less likely to have drivers’ licenses. Conveniently though, these groups also tend to vote Democratic – a consequence conservative legislators certainly considered before passing these laws.Despite his assertions of unjust treatment by partisan operatives, Mr. von Spakovsky is no martyr – except to his own fringe values and ultra-conservative ideology.
Senate Republicans Turn Up Heat before Memorial Day Recess
As Memorial Day recess approaches, battles in the Senate surrounding President Bush’s pending circuit court nominees are once again heating up. At issue is whether a deal hatched last month between Senate Majority Leader Harry Reid (D-NV) and Senate Minority Leader Mitch McConnell (R-KY) will be fulfilled on time. According to Roll Call, “frustrated Republicans accused Senate Majority Leader Harry Reid of backing out of a deal…to move three unspecified judicial nominations before the Memorial Day recess, which begins Friday.”
The truth however, is a bit more nuanced. In April, Sen. Reid agreed to push for the confirmation of three circuit court nominees before Memorial Day recess if Sen. McConnell withdrew Republican opposition to the Senate’s highway funding bill. Although the deal did not include stipulations on which nominees would be pushed through, Senate Republicans clearly held out hope that they would be able to confirm three of their pet conservatives, Peter Keisler (DC Circuit), Steve Matthews and Robert Conrad (Fourth Circuit).
Senate Republican’s hopes were dashed however, when the White House – eager to get as many nominees confirmed as possible before the president’s term expires – began consultations with home-state senators in Virginia and Michigan. As a result of these discussions, agreements were made to consider new nominees for the Sixth Circuit, Judge Helene White and the Fourth Circuit, Judge G. Steven Agee.
Encouraged by the president’s newfound willingness to compromise, Sen. Reid decided to reward the White House by moving these picks, as well as Sixth Circuit nominee Raymond Kethledge through the Senate as quickly as possible. Republicans however, angered by their exclusion from these talks and hesitant to confirm moderate justices to the bench, pushed back hard, particularly Judge White.
Judge White, who was originally nominated to the Sixth Circuit by President Clinton in 1997 faced particularly tough questioning at her May 7th hearing before the Senate Judiciary Committee, even fielding questions about her driving record – Ranking Member Arlen Specter (R-PA) seemed to imply that citations for speeding might be enough to disqualify a Judge from sitting on a federal bench. After the hearing, Judge White was sent 73 written questions to answer, while conservative favorite Raymond Kethledge received only seven.
Now it seems that the Senate will not be able to confirm the number of judges put forward in the Reid-McConnell deal. Sen. Reid argues that he and the rest of his Democratic colleagues have done everything possible to consider these nominees, even scheduling a vote for today on Judge Agee. An article in The Hill yesterday stated that Sen. Reid accused Republicans of sabotaging the progress of Judge White and making it impossible to confirm the prearranged number of judges by the end of this week. Sen. McConnell, for his part, claims that Judge White should never have been considered so quickly and claims that the Senate is perfectly capable of considering the nominations of Fourth Circuit nominees, Conrad and Matthews by week’s end.
This latest round of Republican bait-and-switch is simply more evidence that their only concern is ensuring that as many ultra-conservative ideologues make it to the bench as possible. Senate Democrats have shown a respectable willingness to work with the White House in considering so-called consensus nominees, but their Republican counterparts are not appeased. Sen. McConnell and his allies are not fighting to confirm the president’s picks, but rather to advance their radical agenda. They are not content with their past efforts to pack our courts and clearly intend to wage this battle all the way through November.
To learn more about all of President Bush’s pending nominees, check out our website here. To learn about the state of the Fourth Circuit Court of Appeals, you can read our new report here.
The truth however, is a bit more nuanced. In April, Sen. Reid agreed to push for the confirmation of three circuit court nominees before Memorial Day recess if Sen. McConnell withdrew Republican opposition to the Senate’s highway funding bill. Although the deal did not include stipulations on which nominees would be pushed through, Senate Republicans clearly held out hope that they would be able to confirm three of their pet conservatives, Peter Keisler (DC Circuit), Steve Matthews and Robert Conrad (Fourth Circuit).
Senate Republican’s hopes were dashed however, when the White House – eager to get as many nominees confirmed as possible before the president’s term expires – began consultations with home-state senators in Virginia and Michigan. As a result of these discussions, agreements were made to consider new nominees for the Sixth Circuit, Judge Helene White and the Fourth Circuit, Judge G. Steven Agee.
Encouraged by the president’s newfound willingness to compromise, Sen. Reid decided to reward the White House by moving these picks, as well as Sixth Circuit nominee Raymond Kethledge through the Senate as quickly as possible. Republicans however, angered by their exclusion from these talks and hesitant to confirm moderate justices to the bench, pushed back hard, particularly Judge White.
Judge White, who was originally nominated to the Sixth Circuit by President Clinton in 1997 faced particularly tough questioning at her May 7th hearing before the Senate Judiciary Committee, even fielding questions about her driving record – Ranking Member Arlen Specter (R-PA) seemed to imply that citations for speeding might be enough to disqualify a Judge from sitting on a federal bench. After the hearing, Judge White was sent 73 written questions to answer, while conservative favorite Raymond Kethledge received only seven.
Now it seems that the Senate will not be able to confirm the number of judges put forward in the Reid-McConnell deal. Sen. Reid argues that he and the rest of his Democratic colleagues have done everything possible to consider these nominees, even scheduling a vote for today on Judge Agee. An article in The Hill yesterday stated that Sen. Reid accused Republicans of sabotaging the progress of Judge White and making it impossible to confirm the prearranged number of judges by the end of this week. Sen. McConnell, for his part, claims that Judge White should never have been considered so quickly and claims that the Senate is perfectly capable of considering the nominations of Fourth Circuit nominees, Conrad and Matthews by week’s end.
This latest round of Republican bait-and-switch is simply more evidence that their only concern is ensuring that as many ultra-conservative ideologues make it to the bench as possible. Senate Democrats have shown a respectable willingness to work with the White House in considering so-called consensus nominees, but their Republican counterparts are not appeased. Sen. McConnell and his allies are not fighting to confirm the president’s picks, but rather to advance their radical agenda. They are not content with their past efforts to pack our courts and clearly intend to wage this battle all the way through November.
To learn more about all of President Bush’s pending nominees, check out our website here. To learn about the state of the Fourth Circuit Court of Appeals, you can read our new report here.
Monday, May 19, 2008
Daily Dose
- Von Spakovsky withdraws as FEC nominee [WP, TheHill, TPMMuckraker]
- Candidates speak out on judges, the Supreme Court [LATimes]
Friday, May 16, 2008
The Fight For Fair Pay Continues
Last month, the Lilly Ledbetter Fair Pay Act fell three votes short of overcoming a Republican filibuster in the Senate. But supporters of this crucial piece of civil rights legislation were undeterred by this temporary setback, and Senate Majority Leader Harry Reid (D-NV) has promised to schedule another floor vote on the bill as soon as we can rustle up the three votes necessary to get an up-or-down vote. To that end, we’ve partnered with our friends at CREDO Mobile to schedule constituent meetings with swing senators and their staff during the week of Memorial Day.
So, if you live in Alaska, Florida, Iowa, New Mexico, Ohio, Virginia, Texas, or Nebraska, click here to sign up, and tell your senator to stand up for the civil rights of all Americans.
Read more about the campaign at CREDO Mobile’s blog, watch our film featuring Lilly Ledbetter, or find out how your senators voted on the legislation, which would restore civil rights protections eviscerated by the Roberts Court last year.
So, if you live in Alaska, Florida, Iowa, New Mexico, Ohio, Virginia, Texas, or Nebraska, click here to sign up, and tell your senator to stand up for the civil rights of all Americans.
Read more about the campaign at CREDO Mobile’s blog, watch our film featuring Lilly Ledbetter, or find out how your senators voted on the legislation, which would restore civil rights protections eviscerated by the Roberts Court last year.
Daily Dose
- Picturing the next DOJ [LegalTimes]
- Editorial: Torture’s Blowback [WP]
- “Who you Calling Activist?: California’s gay-marriage decision reflects the difference between judicial activism and, um, judging” [Slate]
Thursday, May 15, 2008
Actor Pushes Back on Preemption Doctrine
Last year, actor Dennis Quaid’s newborn twins almost died when they received 1,000 times the correct dose of a blood thinner due to a labeling error. Yesterday, Quaid was on Capitol Hill testifying before Congress about the danger that the misuse of preemption poses to public safety. Preemption is the legal doctrine stating that federal law overrules, or preempts, state law when there is a conflict between the two. It is of particular importance in the areas of consumer health and safety.
Movement conservatives have latched on to the preemption doctrine, and have spent years fighting to shield big business from legitimate lawsuits, claiming that our nation is plagued by frivolous claims. President Bush even mentioned the issue in one of his State of the Union addresses – his famed, “too many OB-GYNs aren’t able to practice their love with women all across this country” gaffe.
The truth is that for millions of Americans who have been hurt by careless physicians or profit-driven drug manufacturers, the courts are their only avenue to seek redress. Conservatives, however, are alarmingly close to achieving their goal and locking the doors of justice to some of our nation’s most vulnerable citizens.
On February 20th, the Supreme Court released its controversial decision in Riegel v. Medtronic, which stated that if the Food and Drug Administration (FDA) approves a medical device that later proves to be harmful, injured people cannot sue the manufacturer under applicable state laws, because those laws are “preempted” by the agency’s prior approval of that device. And in April, the New York Times wrote an article outlining just how close conservatives are to embedding this doctrine into our laws.
The Supreme Court will also hear a case in its next term regarding similar circumstances surrounding a drug manufacturer. In Wyeth v. Levine, the drug manufacturer Wyeth is claiming that it cannot be sued for mislabeling its drug Phenergan – despite the fact that the drug’s mislabeling directly resulted in the amputation of Ms. Levine’s arm – because the drug had been approved for use by the FDA.
Congress is currently considering legislation to fix the Medtronic decision, called the Medical Device Safety Act of 2008. Alliance for Justice has sent letters of support to both the House and Senate urging members to pass this legislation. As Dennis Quaid said before Congress yesterday, “The courts are often the only path for families that are harmed by the drug companies' negligence.”
Movement conservatives have latched on to the preemption doctrine, and have spent years fighting to shield big business from legitimate lawsuits, claiming that our nation is plagued by frivolous claims. President Bush even mentioned the issue in one of his State of the Union addresses – his famed, “too many OB-GYNs aren’t able to practice their love with women all across this country” gaffe.
The truth is that for millions of Americans who have been hurt by careless physicians or profit-driven drug manufacturers, the courts are their only avenue to seek redress. Conservatives, however, are alarmingly close to achieving their goal and locking the doors of justice to some of our nation’s most vulnerable citizens.
On February 20th, the Supreme Court released its controversial decision in Riegel v. Medtronic, which stated that if the Food and Drug Administration (FDA) approves a medical device that later proves to be harmful, injured people cannot sue the manufacturer under applicable state laws, because those laws are “preempted” by the agency’s prior approval of that device. And in April, the New York Times wrote an article outlining just how close conservatives are to embedding this doctrine into our laws.
The Supreme Court will also hear a case in its next term regarding similar circumstances surrounding a drug manufacturer. In Wyeth v. Levine, the drug manufacturer Wyeth is claiming that it cannot be sued for mislabeling its drug Phenergan – despite the fact that the drug’s mislabeling directly resulted in the amputation of Ms. Levine’s arm – because the drug had been approved for use by the FDA.
Congress is currently considering legislation to fix the Medtronic decision, called the Medical Device Safety Act of 2008. Alliance for Justice has sent letters of support to both the House and Senate urging members to pass this legislation. As Dennis Quaid said before Congress yesterday, “The courts are often the only path for families that are harmed by the drug companies' negligence.”
Wednesday, May 14, 2008
Daily Dose
- Rep. Conyers has no interest in being Rove's pen pal [TPMMuckraker]
- Editorial: Where Isn't Karl Rove Talking These Days? [NYT]
Kangaroo Court Will Come to Order
The Department of Defense announced yesterday that it has officially charged five Guantanamo detainees for participating in the September 11th terrorist attacks. They also dropped charges that were pending for a sixth alleged conspirator, Mohammed al Qahtani. So soon? Most of these prisoners have been held by the government for over five years! There’s nothing like a speedy trial, wouldn't you say?
According to the Center for Constitutional Rights, a group that participated in Mohammed al Qahtani’s defense, the government dropped its case against Mr. Qahtani because every statement he had made during interrogations had been a result of torture – or at least the threat of torture. Luckily for the government, it was able to gather some evidence against the other five suspects without relying entirely on the Bush administration’s “enhanced interrogation” techniques, allowing the sham tribunals to move forward in those cases.
A press release from the ACLU, which along with National Association of Criminal Defense Lawyers provides legal counsel to some of the Guantanamo detainees, reports that several lawyers have faced serious government roadblocks to their representation of detainees. According to the release, two ACLU lawyers who had received security clearance four and a half years ago to defend two other detainees are still waiting to receive clearance to represent Khalid Sheikh Mohammed, one of the five men officially charged this week. They applied for this latest round of clearance in February.
As Alliance for Justice President Nan Aron has said, “The ability of lawyers to confer with their clients and advocate for justice for those clients is a deeply imbedded principle of American democracy. Arbitrary restrictions concerning the number of times and the ways that lawyers may confer with their clients in Guantanamo…would threaten competent representation without at all advancing national security. The principles of freedom, due process and justice are too critical to our national character to be abandoned in any manner.”
Any day now, the Supreme Court is expected to release its decision in Boumedine v. Bush. We hope that the Court will put an end to the kangaroo courts set up by the Bush administration to determine who can be held indefinitely as enemy combatants. If not, prisoners like Mr. Qahtani, who will not be prosecuted because of a lack of evidence, can still be held at Guantanamo for as long as the United States government sees fit.
The principle of habeas corpus and access of the accused to our courts are central to our Constitution and democracy. Any suspension of these rights is an affront, not only to the law, but to our values as a nation. To learn more about our fight to restore habeas corpus, visit our website: http://www.defendhabeas.org/.
According to the Center for Constitutional Rights, a group that participated in Mohammed al Qahtani’s defense, the government dropped its case against Mr. Qahtani because every statement he had made during interrogations had been a result of torture – or at least the threat of torture. Luckily for the government, it was able to gather some evidence against the other five suspects without relying entirely on the Bush administration’s “enhanced interrogation” techniques, allowing the sham tribunals to move forward in those cases.
A press release from the ACLU, which along with National Association of Criminal Defense Lawyers provides legal counsel to some of the Guantanamo detainees, reports that several lawyers have faced serious government roadblocks to their representation of detainees. According to the release, two ACLU lawyers who had received security clearance four and a half years ago to defend two other detainees are still waiting to receive clearance to represent Khalid Sheikh Mohammed, one of the five men officially charged this week. They applied for this latest round of clearance in February.
As Alliance for Justice President Nan Aron has said, “The ability of lawyers to confer with their clients and advocate for justice for those clients is a deeply imbedded principle of American democracy. Arbitrary restrictions concerning the number of times and the ways that lawyers may confer with their clients in Guantanamo…would threaten competent representation without at all advancing national security. The principles of freedom, due process and justice are too critical to our national character to be abandoned in any manner.”
Any day now, the Supreme Court is expected to release its decision in Boumedine v. Bush. We hope that the Court will put an end to the kangaroo courts set up by the Bush administration to determine who can be held indefinitely as enemy combatants. If not, prisoners like Mr. Qahtani, who will not be prosecuted because of a lack of evidence, can still be held at Guantanamo for as long as the United States government sees fit.
The principle of habeas corpus and access of the accused to our courts are central to our Constitution and democracy. Any suspension of these rights is an affront, not only to the law, but to our values as a nation. To learn more about our fight to restore habeas corpus, visit our website: http://www.defendhabeas.org/.
Tuesday, May 13, 2008
Caution: Courts May Slant Rightward!
Conservative presidents have left a lasting legacy on the courts. Well, yes. We've been saying that for some time, and now USA Today and influential legal conservatives agree. Yesterday, USA Today examined the effect that the court-packing policies initiated by Ronald Reagan have had on the judiciary, particularly at the circuit court level. And today, US News & World Report discussed a study by Seventh Circuit Appeals Court Judge Richard Posner and University of Chicago Law Professor William Landes which attempts to classify the political ideology of Supreme Court justices over the past 70 years.
Joan Biskupic’s USA Today piece points to the troubling successes conservative justices have had over the past two decades in advancing their agenda, without regard for precedent.
Beyond the obvious implications of this study, US News & World Report explains that there is an even more disturbing trend uncovered by the Judge Posner and Professor Landes.
Joan Biskupic’s USA Today piece points to the troubling successes conservative justices have had over the past two decades in advancing their agenda, without regard for precedent.
They became the first judges in more than a half-century to say the Second Amendment protects an individual's right to own guns. They took the lead in ruling against affirmative action and other race-conscious policies. And they upheld bans on an abortion procedure called “partial birth” before it reached the Supreme Court.Judge Posner and Professor Landes’ study also paints a troubling picture of the current make-up of the federal bench. While the study’s results are not particularly surprising, its implications are quite disheartening. Five of the ten most conservative Supreme Court justices over the last 70 years are currently serving on the Roberts Court, including four of the top five. Alternatively, only one of the ten most liberal justices – Ruth Bader Ginsburg – remains on the bench.
Beyond the obvious implications of this study, US News & World Report explains that there is an even more disturbing trend uncovered by the Judge Posner and Professor Landes.
The authors were surprised to find a dramatic pooling effect over the years every time a conservative justice joined the court. “The larger the fraction of justices appointed by Republican presidents,” they write, “the more conservatively each Justice [votes].”The disproportionate power conservative judges wield in our courts is precisely why Alliance for Justice fights as hard as it does to preserve an independent judiciary. It is also why we have called on the Senate to halt confirmation proceedings for President Bush’s remaining circuit court nominees. With six months left until the election, we can only hope that the next president will respect the historical role of the judiciary in enforcing our constitutional rights and protections. To learn more about this issue, check out our website at http://www.afj.org/connect-with-the-issues/independent-courts-fair-judges.html.
Daily Dose
- DoJ lawyers say keep courts out of subpoena showdown, let Congress play hardball [TPMMuckraker]
- Rove refuses to testify before House Judiciary Committee, offers to answer questions in writing [BirminghamNews]
- Editorial: The Myth of Voter Fraud [NYT]
- Editorial: Shortchanged: Senate’s green light to cheat workers [HoustonChronicle]
Monday, May 12, 2008
Justice in Short Supply…
Another Justice Department memo became public this week further demonstrating that efforts to clamp down on widespread politicization have been shamefully halfhearted. While Attorney General Michael Mukasey took office vowing to investigate allegations of politically-motivated prosecutions and personnel decisions, the fervor of these investigations has consistently been disputed, particularly considering that very little new information has come to light regarding the abuses.
As The Washington Post reported Sunday, an internal memo has surfaced proving that Scott J. Bloch, head of the Office of Special Counsel (OSC), refused to investigate matters that career DOJ attorneys advised required further scrutiny. Interestingly, the OSC was created specifically to enforce the Hatch Act, which prohibits the use of any federal agency resources for partisan political purposes. But according to the newly-released memo, Mr. Bloch has consistently refused to allow investigations to move forward surrounding the controversial prosecution of former Alabama Governor Don Siegelman and has disrupted inquiries into whether nine US Attorneys were fired for political purposes.
On Wednesday, the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security will hold a hearing to investigate selective prosecution at the Justice Department. We hope subcommittee members will probe further into whether this supposed "watchdog" has been violating the very laws it was created to enforce.
As The Washington Post reported Sunday, an internal memo has surfaced proving that Scott J. Bloch, head of the Office of Special Counsel (OSC), refused to investigate matters that career DOJ attorneys advised required further scrutiny. Interestingly, the OSC was created specifically to enforce the Hatch Act, which prohibits the use of any federal agency resources for partisan political purposes. But according to the newly-released memo, Mr. Bloch has consistently refused to allow investigations to move forward surrounding the controversial prosecution of former Alabama Governor Don Siegelman and has disrupted inquiries into whether nine US Attorneys were fired for political purposes.
On Wednesday, the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security will hold a hearing to investigate selective prosecution at the Justice Department. We hope subcommittee members will probe further into whether this supposed "watchdog" has been violating the very laws it was created to enforce.
Daily Dose
- Missouri set to take voter ID laws to the next level, requiring proof of citizenship [NYT, TheCarpetbaggerReport]
- Recently released memo details frustrations with Office of Special Counsel chief [WP]
- Federal judge to review memo on CIA interrogation techniques [WP]
Friday, May 9, 2008
The Sorry State of the Judiciary
The Washington Post ran an article today discussing the status of the federal judiciary. Not surprising considering that this week, the courts have taken center stage in the presidential race, with John McCain and Barack Obama both discussing the sorts of judges that they would appoint.
According to the Post however, the person who wins in November will have much less of an impact on the courts than President Bush has had. The article states that the current vacancy level is at a historic low – down to only 13 seats at the circuit court level and 35 at the district court level. When President Bush took office in 2001, there were 30 circuit court vacancies and 55 open district court seats.
Alliance for Justice has long argued that President Bush’s most lasting legacy will be his success in packing the courts with ultra-conservatives. Despite only serving eight years in office, the judges that he has appointed could serve 40 years or more on the bench.
As today’s article makes clear, his impact on the federal judiciary has indeed been overwhelming , which is why we have pressed so hard for the Senate to put an end to their confirmation proceedings. With the election less than six months away, the most responsible thing the Senate could do is to wait and see which party takes office before approving any more of the president’s ideologue justices to these life-time appointments.
According to the Post however, the person who wins in November will have much less of an impact on the courts than President Bush has had. The article states that the current vacancy level is at a historic low – down to only 13 seats at the circuit court level and 35 at the district court level. When President Bush took office in 2001, there were 30 circuit court vacancies and 55 open district court seats.
Alliance for Justice has long argued that President Bush’s most lasting legacy will be his success in packing the courts with ultra-conservatives. Despite only serving eight years in office, the judges that he has appointed could serve 40 years or more on the bench.
As today’s article makes clear, his impact on the federal judiciary has indeed been overwhelming , which is why we have pressed so hard for the Senate to put an end to their confirmation proceedings. With the election less than six months away, the most responsible thing the Senate could do is to wait and see which party takes office before approving any more of the president’s ideologue justices to these life-time appointments.
Thursday, May 8, 2008
Nun Too Keen to Vote
Many of you may remember our objections to the Indiana voter identification law on the basis that it would potentially disenfranchise thousands of American citizens who have a constitutional right to vote for their elected officials. Conservatives countered these arguments by saying that the law was simply a common sense safeguard against potential voter fraud. Besides, they argued, there is little evidence that these laws would prevent significant numbers of voters from casting their ballots.
In a March blog entry, we countered this argument, which was clearly not based on any empirical research by providing an example concerning former Indiana Congresswoman Julia Carson. In 2006, the late Rep. Carson attempted to cast a ballot in the mid-term elections by using her Congressional identification card as proof of eligibility. Unfortunately, because the ID cards issued by the United States House of Representatives do not include a photo, Ms. Carson was turned away. We argued at the time that if Indiana’s law was so restrictive that even a member of Congress couldn’t vote, imagine the difficulties an average citizen would face.
Well, it turns out we were right. Following last month’s Supreme Court decision to uphold Indiana’s restrictive law, hundreds of residents were unable to participate in Tuesday’s Democratic primary. Perhaps the most upsetting example included a group of octogenarian nuns. The Los Angeles Times reported that, “The nuns, all residents of a retirement home at Saint Mary's Convent near Notre Dame University, were denied ballots by a fellow sister and poll worker because the women, in their 80s and 90s, did not have valid Indiana photo ID cards.”
We can see why the state of Indiana would need this law. Who hasn’t heard stories about their local nunneries participating in scandalous election tampering schemes?
In a March blog entry, we countered this argument, which was clearly not based on any empirical research by providing an example concerning former Indiana Congresswoman Julia Carson. In 2006, the late Rep. Carson attempted to cast a ballot in the mid-term elections by using her Congressional identification card as proof of eligibility. Unfortunately, because the ID cards issued by the United States House of Representatives do not include a photo, Ms. Carson was turned away. We argued at the time that if Indiana’s law was so restrictive that even a member of Congress couldn’t vote, imagine the difficulties an average citizen would face.
Well, it turns out we were right. Following last month’s Supreme Court decision to uphold Indiana’s restrictive law, hundreds of residents were unable to participate in Tuesday’s Democratic primary. Perhaps the most upsetting example included a group of octogenarian nuns. The Los Angeles Times reported that, “The nuns, all residents of a retirement home at Saint Mary's Convent near Notre Dame University, were denied ballots by a fellow sister and poll worker because the women, in their 80s and 90s, did not have valid Indiana photo ID cards.”
We can see why the state of Indiana would need this law. Who hasn’t heard stories about their local nunneries participating in scandalous election tampering schemes?
Wednesday, May 7, 2008
Senate Republicans Show True Colors
As was expected, Senate Republicans expressed their displeasure with Judge Helene White’s nomination to the Sixth Circuit Court of Appeals. During today’s Senate Judiciary Committee hearing, Ranking Member Arlen Specter (R-PA) said that the timing of her hearing “does not conform with the practices of the committee and is an unusual rush to judgment.”
In a statement released today, Alliance for Justice President Nan Aron observed “Judge Helene White, one of President Bush's two pending nominees to the Sixth Circuit, was nominated to the same court by President Clinton in 1997. For four years, the Republican-controlled Senate refused to hold a hearing on Judge White's nomination, and she continues to hold the record for the longest pending federal judicial nomination in U.S. history. Complaints by Senate Republicans that her nomination has been fast-tracked eclipse even a grand sense of irony, especially given their incessant footstamping at the slow pace of nominations in recent months.”
"Senate Republicans’ sudden commitment to vigorously examining Judge White's qualifications strikes an impressive contrast to their past role as a rubberstamp for the president's picks, illustrated even today by their lackluster questioning of the other circuit nominee, Raymond Kethledge.”
As Senate Judiciary Chair Patrick Leahy (D-VT) said, even the White House describes Judge White as “an experienced and highly qualified judge, who is known for her intellect, work ethic and demeanor.” It seems clear that Republicans’ opposition to her nomination have more to do with her lack of conservative bona fides than the speed with which she received a hearing.
In a statement released today, Alliance for Justice President Nan Aron observed “Judge Helene White, one of President Bush's two pending nominees to the Sixth Circuit, was nominated to the same court by President Clinton in 1997. For four years, the Republican-controlled Senate refused to hold a hearing on Judge White's nomination, and she continues to hold the record for the longest pending federal judicial nomination in U.S. history. Complaints by Senate Republicans that her nomination has been fast-tracked eclipse even a grand sense of irony, especially given their incessant footstamping at the slow pace of nominations in recent months.”
"Senate Republicans’ sudden commitment to vigorously examining Judge White's qualifications strikes an impressive contrast to their past role as a rubberstamp for the president's picks, illustrated even today by their lackluster questioning of the other circuit nominee, Raymond Kethledge.”
As Senate Judiciary Chair Patrick Leahy (D-VT) said, even the White House describes Judge White as “an experienced and highly qualified judge, who is known for her intellect, work ethic and demeanor.” It seems clear that Republicans’ opposition to her nomination have more to do with her lack of conservative bona fides than the speed with which she received a hearing.
Tuesday, May 6, 2008
Senate Judiciary Committee Considers Two More Bush Nominees
Tomorrow, the Senate Judiciary Committee will hold hearings on two Sixth Circuit nominees, Helene N. White and Raymond M. Kethledge. Along with G. Steven Agee’s hearing last week, theirs will put the number of President Bush’s circuit court nominees who have received hearings over the past week to three. It is clear that Sen. Leahy (D-VT), chairman of the Senate Judiciary Committee, is working to fulfill an agreement made last month by Majority Leader Harry Reid (D-NV) and Minority Leader Mitch McConnell (R-KY) to move three circuit court nominees before Memorial Day recess.
Sen. McConnell, however, is not satisfied with the candidates Sen. Leahy has selected. Despite the facts that Virginia Supreme Court Justice Agee comes with bipartisan support from both of his home-state senators and Mr. Kethledge has been awaiting a hearing for almost two years, the Minority Leader would prefer that the committee consider more conservative nominees.
In a recent letter, Sen. McConnell and Ranking Member of the Senate Judiciary Committee Arlen Specter (R-PA) called on Sen. Leahy to schedule hearings for Peter Keisler, nominated to the DC Circuit, and Robert Conrad and Steve Matthews, both of whom have been nominated to the Fourth Circuit Court of Appeals (the same court as Justice Agee).
Attempting to mask their intentions for suggesting these controversial nominees, Senators McConnell and Specter wrote that they were simply concerned with fairness – Mr. Conrad and Mr. Stevens were both nominated before Mr. Agee. But the truth is that Mr. Kethledge’s nomination was sent to the Senate a full year before either Mr. Conrad’s or Mr. Matthews’. In addition Ms. White waited for three years to receive a hearing during the Clinton administration, but never overcame Republican efforts to block her nomination. Clearly, fairness is not Sen. McConnell’s main concern.
By close of business tomorrow, the Senate Judiciary Committee will have considered three of President Bush’s circuit court nominees in less than seven days. For months now, Senate Republicans have condemned their Democratic colleagues for not confirming enough judges, but this latest controversy demonstrates that it is they who are playing partisan games. The Senate GOP is far less concerned with the number of judges they confirm than they are with the conservative ideology of those who are appointed.
Sen. McConnell, however, is not satisfied with the candidates Sen. Leahy has selected. Despite the facts that Virginia Supreme Court Justice Agee comes with bipartisan support from both of his home-state senators and Mr. Kethledge has been awaiting a hearing for almost two years, the Minority Leader would prefer that the committee consider more conservative nominees.
In a recent letter, Sen. McConnell and Ranking Member of the Senate Judiciary Committee Arlen Specter (R-PA) called on Sen. Leahy to schedule hearings for Peter Keisler, nominated to the DC Circuit, and Robert Conrad and Steve Matthews, both of whom have been nominated to the Fourth Circuit Court of Appeals (the same court as Justice Agee).
Attempting to mask their intentions for suggesting these controversial nominees, Senators McConnell and Specter wrote that they were simply concerned with fairness – Mr. Conrad and Mr. Stevens were both nominated before Mr. Agee. But the truth is that Mr. Kethledge’s nomination was sent to the Senate a full year before either Mr. Conrad’s or Mr. Matthews’. In addition Ms. White waited for three years to receive a hearing during the Clinton administration, but never overcame Republican efforts to block her nomination. Clearly, fairness is not Sen. McConnell’s main concern.
By close of business tomorrow, the Senate Judiciary Committee will have considered three of President Bush’s circuit court nominees in less than seven days. For months now, Senate Republicans have condemned their Democratic colleagues for not confirming enough judges, but this latest controversy demonstrates that it is they who are playing partisan games. The Senate GOP is far less concerned with the number of judges they confirm than they are with the conservative ideology of those who are appointed.
Daily Dose
- Federal inspectors general to take on more power, except for Justice Department IG [NationalLawJournal]
- Justice for detainees is a long time coming: officials say it’s unlikely that any 9/11 terror trials will take place before Bush leaves office [WP]
- House Judiciary Committee subpoenas Addington [AP]
Monday, May 5, 2008
Daily Dose
- White House won't say which telecoms it advised on lobbying [TheRawStory]
- Editorial: Coming Clean on Torture [WP]
- Did the Supreme Court overlook the 24th Amendment in its Voter ID decision? [Slate]
Friday, May 2, 2008
Daily Dose
- Rep. Conyers, House Judiciary Committee threaten to subpoena Rove [AP, TPMMuckraker]
- Editorial: A Trial Too Far [WP]
- Immunity deal in the works for telecoms? [Hullabaloo]
Thursday, May 1, 2008
Senate Republicans Still Not Satisfied
Senate Judiciary Chair Patrick Leahy (D-VT) announced yesterday that he will hold hearings on May 7th for Helene White and Raymond Kethledge, both of whom have been nominated by President Bush for seats on the Sixth Circuit Court of Appeals in Michigan as the result of consultation and compromise with home state senators. Together with today’s hearing for G. Steven Agee, one of the president’s Fourth Circuit nominees, their confirmations would fulfill an agreement made last month between Senate Majority Leader Harry Reid (D-NV) and Senate Minority Leader Mitch McConnell (R-KY) to move three circuit court nominees before Memorial Day recess.
But despite the good faith efforts of Senate Democrats to live up to their end of the bargain, their Republican colleagues remain dissatisfied. In a letter sent by Sen. Mitch McConnell and Ranking Member of the Senate Judiciary Committee Arlen Specter (R-PA), GOP senators complained that White and Kethledge couldn’t possibly be confirmed before this month’s recess and as a result, the Committee should consider the nominations of Peter Keisler (DC Circuit Court of Appeals), Robert Conrad and Steve Matthews (Fourth Circuit Court of Appeals) instead. Their reasoning for moving Keisler instead of Agee is a mystery – particularly in view of the fact that they never claimed Agee’s confirmation couldn’t make the May 23rd deadline.
The fact that Senator Leahy is moving to consider three of President Bush’s nominees in the span of a week shows the willingness of Senate Democrats to cooperate with the president and his allies. The fact that Senators McConnell and Specter are still not satisfied shows that they are not truly concerned with the number of judges confirmed – as they are so fond of saying – but rather the conservative ideology of those reaching the bench. We believe that the American public will see through their partisan mischief and support Sen. Leahy’s bipartisan efforts.
But despite the good faith efforts of Senate Democrats to live up to their end of the bargain, their Republican colleagues remain dissatisfied. In a letter sent by Sen. Mitch McConnell and Ranking Member of the Senate Judiciary Committee Arlen Specter (R-PA), GOP senators complained that White and Kethledge couldn’t possibly be confirmed before this month’s recess and as a result, the Committee should consider the nominations of Peter Keisler (DC Circuit Court of Appeals), Robert Conrad and Steve Matthews (Fourth Circuit Court of Appeals) instead. Their reasoning for moving Keisler instead of Agee is a mystery – particularly in view of the fact that they never claimed Agee’s confirmation couldn’t make the May 23rd deadline.
The fact that Senator Leahy is moving to consider three of President Bush’s nominees in the span of a week shows the willingness of Senate Democrats to cooperate with the president and his allies. The fact that Senators McConnell and Specter are still not satisfied shows that they are not truly concerned with the number of judges confirmed – as they are so fond of saying – but rather the conservative ideology of those reaching the bench. We believe that the American public will see through their partisan mischief and support Sen. Leahy’s bipartisan efforts.
Daily Dose
- Justice Department to release secret interrogation opinions to lawmakers [WP, NYT, TPMMuckraker]
- Chief of DOJ Criminal Division resigns [WP]
- FISA fight far from over [TheHill]
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