Yesterday, the Supreme Court heard arguments in Flores-Figueroa v. U.S., which questions whether the government can charge undocumented workers with aggravated identity theft for using forged documents. Ignacio Carlos Flores-Figueroa purchased identification from a forger, but was unaware that the Social Security number he received belonged to someone else. When he was later arrested by immigration officials, Mr. Flores-Figueroa found himself facing up to two additional years in prison for using someone else’s personal information, despite the fact that he did not mean to.
In 2004, the federal government responded to the increasing menace of identity theft by passing legislation calling for a mandatory two-year sentence for stealing someone’s personal information. Immigration officials have since used this law to pressure undocumented workers into quickly accepting deportation. In Mr. Flores-Figueroa’s case, he was convicted under this new law and sentenced to 51 months for violation of immigration laws and an additional two years for “aggravated identity theft.”
During oral arguments yesterday, the justices seemed troubled by the government’s willingness to try Mr. Flores-Figueroa for identity theft considering he had no intention of stealing from anyone. He purchased a counterfeit Social Security number, not realizing that it already existed. His lawyer argued that there are almost a billion possible Social Security number combinations, less than half of which have been used. Chief Justice Roberts questioned the fairness of sentencing someone to two more years “if it just so happens that the number you picked out of the air belongs to someone else?”
According to the Associated Press, both “the Court’s conservative and liberal justices signaled they have problems with the government’s use of the law against defendants without additional evidence that those defendants knew they were invading the privacy of real people.” And a New York Times editorial stated that this “is a case about the misapplication of federal law. It also is a case about unequal justice. The government is misusing the identity theft law to pressure illegal immigrants to agree to quick deportation.” A decision is expected from the Court sometime this spring.
Thursday, February 26, 2009
Wednesday, February 25, 2009
New Bill Could Revoke Corporate License to “Hit and Run”
Word around Capitol Hill is that the Medical Device Safety Act will be reintroduced in Congress soon. The bill stalled in the face of strident Republican opposition in the last Congress. Now, we hope the newly energized Democratic majority will be able to pass this important legislation.
The bill responds to last year’s disastrous decision in Riegel v. Medtronic, in which the Supreme Court said that Medtronic could not be sued for injury caused by its faulty implanted defibrillators because the Food and Drug Administration had approved the devices. That left thousands of Americans victims of a corporate “hit and run,” with no ability to sue the manufacturer of these dangerous devices.
Yesterday, a New York Times article stated that the recalled defibrillators are failing at a much higher rate than Medtronic had claimed. A study by Dr. Robert Hauser of the Minneapolis Heart Institute and Dr. David Hayes of the Mayo Clinic found that the devices were failing at a rate more than twice that which Medtronic released. Medtronic claimed that 1 out of 20 defibrillators could be expected to fail after three years. This new study suggested that almost 1 out of every 8 devices have failed in that same time period.
What’s more, patients who received implants of these faulty defibrillators face a difficult decision. As the New York Times previously reported, removing the devices can be dangerous too. The Times told the story of a 33-year-old father, Mark Turnidge, who died after surgery to remove his Medtronic device.
Last year’s Supreme Court decision led to the dismissal of hundreds of lawsuits against Medtronic. By enacting the Medical Devices Safety Act, Congress and President Obama can stop corporations from overturning a hundred years of consumer protection.
The bill responds to last year’s disastrous decision in Riegel v. Medtronic, in which the Supreme Court said that Medtronic could not be sued for injury caused by its faulty implanted defibrillators because the Food and Drug Administration had approved the devices. That left thousands of Americans victims of a corporate “hit and run,” with no ability to sue the manufacturer of these dangerous devices.
Yesterday, a New York Times article stated that the recalled defibrillators are failing at a much higher rate than Medtronic had claimed. A study by Dr. Robert Hauser of the Minneapolis Heart Institute and Dr. David Hayes of the Mayo Clinic found that the devices were failing at a rate more than twice that which Medtronic released. Medtronic claimed that 1 out of 20 defibrillators could be expected to fail after three years. This new study suggested that almost 1 out of every 8 devices have failed in that same time period.
What’s more, patients who received implants of these faulty defibrillators face a difficult decision. As the New York Times previously reported, removing the devices can be dangerous too. The Times told the story of a 33-year-old father, Mark Turnidge, who died after surgery to remove his Medtronic device.
Last year’s Supreme Court decision led to the dismissal of hundreds of lawsuits against Medtronic. By enacting the Medical Devices Safety Act, Congress and President Obama can stop corporations from overturning a hundred years of consumer protection.
Tuesday, February 24, 2009
Guest Blogger: Supreme Court Considers Right to DNA Testing
The Innocence Project , a long-time friend of AFJ, argues one of the most interesting cases of this Supreme Court term on Monday. At issue: whether a state has the legal authority to deny DNA testing to prisoners when such evidence exists, even if that evidence could potentially exonerate that prisoner.
By Matt Kelley
Online Communcations Manager
The Innocence Project
Next Monday, Innocence Project Co-Director Peter Neufeld will argue before the Supreme Court that prisoners have a constitutional right to DNA testing that can prove their innocence. And at a major public event this Thursday in Washington, D.C., people exonerated by DNA testing will be joined by legal experts who will discuss why the constitutional protections at question in this case are vital to preventing injustice and ensuring public safety.
In this case, District Attorney's Office of the Third Judicial District v. William G. Osborne, our client, William Osborne, sued the state of Alaska in federal court after being repeatedly denied the DNA testing that could prove his innocence. Although the Innocence Project would pay for DNA testing in the case and prosecutors have agreed that testing could definitively prove Osborne’s innocence or guilt, the state has argued that Osborne received a fair jury trial and can’t bring new evidence of innocence into federal court. The Ninth Circuit Court of Appeals heard the case and decided last year that Osborne had a right to post-conviction DNA testing under the due process clause of the Fourteenth Amendment. Alaska appealed to the Supreme Court.
Osborne was convicted along with another man, Dexter Jackson, of raping and assaulting a woman in 1993. At Osborne’s trial, the victim identified him as the second perpetrator, who had worn a blue condom during the rape. She said she was able to identify him despite her extremely poor vision and the fact that she was not wearing glasses or contacts. Police collected a blue condom from the crime scene and rudimentary DNA testing was conducted before Osborne’s trial. The results showed Osborne was a “possibly a source” of the fluids in the condom – along with 14 to 16 percent of all African Americans. He was convicted and sentenced to 26 years in prison.
Beginning in 2001, Osborne appealed his conviction in both state and federal courts, seeking more advanced DNA testing on the same condom used to convict him, arguing that new forms of testing were much more sensitive and could conclusively prove his innocence. The Innocence Project has represented him since 2003.
In the vast majority of our cases, prisoners are granted DNA testing through an agreement with prosecutors or under state post-conviction DNA access laws. Alaska is one of just six states without a DNA access law, and it is the only state with no known case of a prisoner receiving testing. The federal constitutional protection in this case is the only hope for William Osborne.
Thursday’s event, which is free and open to the public, will take place at 12:30 p.m. at Georgetown University Law School. More information is available here.
http://www.innocenceproject.org/Content/1874.php
Oral arguments in District Attorney's Office of the Third Judicial District v. William G. Osborne are set for 10 a.m. on Monday, March 2. Visit The Innocence Project’s website for briefs from both sides – including amicus briefs on Osborne’s behalf from prosecutors, crime victims, exonerees and more.
By Matt Kelley
Online Communcations Manager
The Innocence Project
Next Monday, Innocence Project Co-Director Peter Neufeld will argue before the Supreme Court that prisoners have a constitutional right to DNA testing that can prove their innocence. And at a major public event this Thursday in Washington, D.C., people exonerated by DNA testing will be joined by legal experts who will discuss why the constitutional protections at question in this case are vital to preventing injustice and ensuring public safety.
In this case, District Attorney's Office of the Third Judicial District v. William G. Osborne, our client, William Osborne, sued the state of Alaska in federal court after being repeatedly denied the DNA testing that could prove his innocence. Although the Innocence Project would pay for DNA testing in the case and prosecutors have agreed that testing could definitively prove Osborne’s innocence or guilt, the state has argued that Osborne received a fair jury trial and can’t bring new evidence of innocence into federal court. The Ninth Circuit Court of Appeals heard the case and decided last year that Osborne had a right to post-conviction DNA testing under the due process clause of the Fourteenth Amendment. Alaska appealed to the Supreme Court.
Osborne was convicted along with another man, Dexter Jackson, of raping and assaulting a woman in 1993. At Osborne’s trial, the victim identified him as the second perpetrator, who had worn a blue condom during the rape. She said she was able to identify him despite her extremely poor vision and the fact that she was not wearing glasses or contacts. Police collected a blue condom from the crime scene and rudimentary DNA testing was conducted before Osborne’s trial. The results showed Osborne was a “possibly a source” of the fluids in the condom – along with 14 to 16 percent of all African Americans. He was convicted and sentenced to 26 years in prison.
Beginning in 2001, Osborne appealed his conviction in both state and federal courts, seeking more advanced DNA testing on the same condom used to convict him, arguing that new forms of testing were much more sensitive and could conclusively prove his innocence. The Innocence Project has represented him since 2003.
In the vast majority of our cases, prisoners are granted DNA testing through an agreement with prosecutors or under state post-conviction DNA access laws. Alaska is one of just six states without a DNA access law, and it is the only state with no known case of a prisoner receiving testing. The federal constitutional protection in this case is the only hope for William Osborne.
Thursday’s event, which is free and open to the public, will take place at 12:30 p.m. at Georgetown University Law School. More information is available here.
http://www.innocenceproject.org/Content/1874.php
Oral arguments in District Attorney's Office of the Third Judicial District v. William G. Osborne are set for 10 a.m. on Monday, March 2. Visit The Innocence Project’s website for briefs from both sides – including amicus briefs on Osborne’s behalf from prosecutors, crime victims, exonerees and more.
Friday, February 20, 2009
Hit and Run Op-Ed Published in Detroit Free Press
Today, the Detroit Free Press published an op-ed written by AFJ President Nan Aron and Michigan’s Sugar Law Center Legal Director John Philo. The op-ed, “Drugmakers Seek Lawsuit Immunity,” discusses the principle of preemption, which would limit the ability of consumers to hold corporations accountable for injuries caused by their products. It was also a response to an earlier Free Press op-ed by Pacific Research Institute CEO Sally Pipes titled “Don’t Let Trial Lawyers Overdose on Drug Suits.”
“[D]rug giant[s] argue that once a company has permission from the U.S. Food and Drug Administration to market a medication or a device such as a defibrillator, heart pump or artificial heart valve…it can no longer be held accountable in state court for any harm that product causes. This ‘hit and run’ legal theory is like saying that once someone gets a driver's license, that person can't be held legally responsible for ramming your car on the freeway and sending you to the hospital.”To read Nan and John’s entire op-ed in the Detroit Free Press click here.
Thursday, February 19, 2009
Supreme Court May Hear Food Safety Case
With the nation still reeling from news that the Peanut Corporation of America was able to contaminate huge portions of our food supply despite FDA regulation, it seems the Supreme Court could soon hear its own case involving food safety. Mother Jones is reporting that the Court may agree to hear a case out of New Jersey concerning mercury contamination of canned tuna products. The manufacturer, Chicken of the Sea, is hoping to escape accountability by arguing that FDA regulation preempts any state-level lawsuits over the safety of its product.
Deborah Fellner, a resident of New Jersey ate a can of tuna every day because it was one of the few foods that didn’t aggravate her Crohn’s disease symptoms. But after years of consuming tuna daily, she began experiencing new symptoms, which eventually led to the discovery that she was suffering from mercury poisoning. Having read stories of contaminated tuna, Ms. Fellner gave up the food, and gradually saw her symptoms disappear. Realizing that the tuna had caused her sickness, and that the company had never warned of the dangers posed by mercury contamination, Ms. Fellner filed suit under the New Jersey Consumer Fraud Act.
Unfortunately for Ms. Fellner, a U.S. District Court judge threw out her case in 2007, claiming that her suit was preempted because the FDA had refused to require tuna companies to place warning labels on their products. Ms. Fellner decided to appeal the decision, and last year, the Third Circuit Court of Appeals disagreed, claiming that the New Jersey law which she used to file suit served to complement, not undermine FDA regulation. Now, the Supreme Court is considering whether it will hear the case.
The issue of preemption has popped up on the Court’s docket quite a bit over the last few years as corporations have systematically tried to push the doctrine in order to immunize themselves from state tort law. Last year, the Supreme Court ruled that FDA approval of Medtronic defibrillators meant that consumers could not sue the company for faulty wiring. This year, the Court ruled that label requirements for tobacco products did not preempt the ability of consumers to sue for misleading advertising of “light” cigarettes. And the Court will soon release its decision in Wyeth v. Levine, determining whether pharmaceutical companies can be sued for injuries caused by their products.
Considering the amount of products the FDA is responsible for regulating, and the countless examples recently of their failure to do so -- like the recent disaster created by the Peanut Corporation of America -- the Court should recognize that state tort law serves to complement FDA regulation, and for good reason. The agency simply does not have the resources to be the final arbiter on product safety, despite what corporations may say.
Deborah Fellner, a resident of New Jersey ate a can of tuna every day because it was one of the few foods that didn’t aggravate her Crohn’s disease symptoms. But after years of consuming tuna daily, she began experiencing new symptoms, which eventually led to the discovery that she was suffering from mercury poisoning. Having read stories of contaminated tuna, Ms. Fellner gave up the food, and gradually saw her symptoms disappear. Realizing that the tuna had caused her sickness, and that the company had never warned of the dangers posed by mercury contamination, Ms. Fellner filed suit under the New Jersey Consumer Fraud Act.
Unfortunately for Ms. Fellner, a U.S. District Court judge threw out her case in 2007, claiming that her suit was preempted because the FDA had refused to require tuna companies to place warning labels on their products. Ms. Fellner decided to appeal the decision, and last year, the Third Circuit Court of Appeals disagreed, claiming that the New Jersey law which she used to file suit served to complement, not undermine FDA regulation. Now, the Supreme Court is considering whether it will hear the case.
The issue of preemption has popped up on the Court’s docket quite a bit over the last few years as corporations have systematically tried to push the doctrine in order to immunize themselves from state tort law. Last year, the Supreme Court ruled that FDA approval of Medtronic defibrillators meant that consumers could not sue the company for faulty wiring. This year, the Court ruled that label requirements for tobacco products did not preempt the ability of consumers to sue for misleading advertising of “light” cigarettes. And the Court will soon release its decision in Wyeth v. Levine, determining whether pharmaceutical companies can be sued for injuries caused by their products.
Considering the amount of products the FDA is responsible for regulating, and the countless examples recently of their failure to do so -- like the recent disaster created by the Peanut Corporation of America -- the Court should recognize that state tort law serves to complement FDA regulation, and for good reason. The agency simply does not have the resources to be the final arbiter on product safety, despite what corporations may say.
Wednesday, February 18, 2009
Chief Justice Pleased With Limited Applicant Pool
As the New York Times’ Adam Liptak noted, for “the first time in its history, every member of the United States Supreme Court is a former federal appeals court judge.” And in the opinion of Chief Justice John Roberts, this is a welcome development. Despite the fact that some of the Court’s most groundbreaking decisions came from the extremely diverse Warren Court -- which included governors, senators and law professors -- the chief justice seems to think that having former federal judges serve on the bench helps to ensure decisions are based on “legal perspective” and not “policy” preferences.
Speaking two weeks ago at the University of Arizona’s law school, Chief Justice Roberts said that for much of the Court’s history, former federal judges were in the minority on the bench. He believes that this led to “the practice of constitutional law” being “more fluid and wide ranging…more in the realm of political science.” As former federal judges have taken a more prominent role on the Court, he continued, “the method of analysis and argument” has shifted to more “solid…legal arguments.”
These statements have sparked a bit of controversy however, especially among legal experts that claim his underlying assumption is flawed. As Northwestern University Law Professor Lee Epstein and his colleagues see it, former federal judges are no more inclined than former legislators to follow precedent and remove political considerations from their opinions. In fact, the recent Roberts Court, made up entirely of former federal judges, has been quite willing to ignore precedent for political ends -- see decisions in Ledbetter v. Goodyear and District of Columbia v. Heller.
The difference is that having justices serve on the bench with varying and diverse backgrounds increases the ability of those men and women to fully grasp the real world implications of their decisions. In fact, even former Chief Justice William Rehnquist, for whom Chief Justice Roberts clerked, was concerned with the lack of perspective provided by narrowing the selection pool to former federal judges.
As a former constitutional law professor himself, we hope that President Obama does not share this chief justice’s view. As AFJ President Nan Aron said in a statement the morning after his election, “the Obama administration should look to nominate individuals who come from diverse backgrounds and different experiences -- such as governors, attorneys general and state legislators.” But of course most importantly, President Obama should nominate people who will keep faith with our core constitutional principles of liberty, equality and justice for all.
Speaking two weeks ago at the University of Arizona’s law school, Chief Justice Roberts said that for much of the Court’s history, former federal judges were in the minority on the bench. He believes that this led to “the practice of constitutional law” being “more fluid and wide ranging…more in the realm of political science.” As former federal judges have taken a more prominent role on the Court, he continued, “the method of analysis and argument” has shifted to more “solid…legal arguments.”
These statements have sparked a bit of controversy however, especially among legal experts that claim his underlying assumption is flawed. As Northwestern University Law Professor Lee Epstein and his colleagues see it, former federal judges are no more inclined than former legislators to follow precedent and remove political considerations from their opinions. In fact, the recent Roberts Court, made up entirely of former federal judges, has been quite willing to ignore precedent for political ends -- see decisions in Ledbetter v. Goodyear and District of Columbia v. Heller.
The difference is that having justices serve on the bench with varying and diverse backgrounds increases the ability of those men and women to fully grasp the real world implications of their decisions. In fact, even former Chief Justice William Rehnquist, for whom Chief Justice Roberts clerked, was concerned with the lack of perspective provided by narrowing the selection pool to former federal judges.
As a former constitutional law professor himself, we hope that President Obama does not share this chief justice’s view. As AFJ President Nan Aron said in a statement the morning after his election, “the Obama administration should look to nominate individuals who come from diverse backgrounds and different experiences -- such as governors, attorneys general and state legislators.” But of course most importantly, President Obama should nominate people who will keep faith with our core constitutional principles of liberty, equality and justice for all.
Tuesday, February 17, 2009
Lunch of (Legal) Champions
As Alliance for Justice’s Access Denied film screenings continue across the country, a recent lunchtime event in New York City was a rousing success…and you don’t have to take our word for it. Check out Poptort.com’s coverage of the screening, which also featured a lively discussion with attorney Joanne Doroshow.
Friday, February 13, 2009
Force Feeding in Gitmo Will Continue
On Tuesday, a federal judge said that Guantanamo guards can continue to forcibly feed inmates at the detention facility. Several prisoners have engaged in hunger strikes to protest both their treatment and their detention by the U.S. government. The statement came in response to a petition filed by two such prisoners who had been strapped down and forced to ingest food. The inmates had requested that the court put a stop the forced feedings.
In the case, Judge Gladys Kessler, appointed to the D.C. District Court by President Clinton, ruled that the Military Commissions Act stripped the federal judiciary of its authority to interfere in issues surrounding the “conditions of confinement” facing the prisoners. She went on to note, however, that even if she had authority to rule on the issue, she would not stop the feedings. She said the guards were “acting out of a need to preserve the life of the Petitioners.”
The practice of force-feeding involves restraining a prisoner in a chair, securing his head with Velcro, placing a tube into the detainee’s stomach via his nostrils and then injecting a nutrient-shake. This is done twice a day and can take as long as an hour. The plaintiffs in this case claim their feedings took much longer.
A spectrum of human rights groups have condemned the practice of force-feeding as more evidence of the government’s inhumane treatment of its detainees. Even Judge Kessler herself seemed disturbed by the treatment of prisoners at Guantanamo, stating in her opinion that living conditions at Guantanamo “have been harsh.” She added that she is “painfully aware” that the prisoners’ complaints of brutality may never be resolved.
Judge Kessler's decision did note that President Obama has the authority to put an end to the forced feedings, a point that leaves the future of this practice strictly in the administration's hands.
In the case, Judge Gladys Kessler, appointed to the D.C. District Court by President Clinton, ruled that the Military Commissions Act stripped the federal judiciary of its authority to interfere in issues surrounding the “conditions of confinement” facing the prisoners. She went on to note, however, that even if she had authority to rule on the issue, she would not stop the feedings. She said the guards were “acting out of a need to preserve the life of the Petitioners.”
The practice of force-feeding involves restraining a prisoner in a chair, securing his head with Velcro, placing a tube into the detainee’s stomach via his nostrils and then injecting a nutrient-shake. This is done twice a day and can take as long as an hour. The plaintiffs in this case claim their feedings took much longer.
A spectrum of human rights groups have condemned the practice of force-feeding as more evidence of the government’s inhumane treatment of its detainees. Even Judge Kessler herself seemed disturbed by the treatment of prisoners at Guantanamo, stating in her opinion that living conditions at Guantanamo “have been harsh.” She added that she is “painfully aware” that the prisoners’ complaints of brutality may never be resolved.
Judge Kessler's decision did note that President Obama has the authority to put an end to the forced feedings, a point that leaves the future of this practice strictly in the administration's hands.
Wednesday, February 11, 2009
Stand Up for Judges Who Support Justice for All
Written by Nan Aron
Published on Huffington Post
Americans want judges who believe the constitution provides for equal justice for all, not just the wealthy and powerful. President Obama has said he plans to appoint highly qualified individuals who respect the law to federal judgeships.
So that should give us common ground with all of those conservative groups who have argued for the past eight years that respect for the constitution is the most important thing when choosing judges, right?
Not so fast. They are singing a different tune, now that it’s President Obama who will make the nominations. I don’t find this surprising. The current Supreme Court has consistently ruled in favor of corporate special interests at the expense of the average, hard-working American – instead of applying the constitution to ensure equal justice for all. A president who nominates judges that enforce the laws that protect the environment, or give us access to justice when we’re harmed by dangerous drugs, is not exactly singing from their song book.
Don’t believe me? Take a look at how President Obama’s nominees to run the Justice Department are faring at the hands of those conservative groups. It started with the Holder hearings last month and is heating up as the Deputy Attorney General, the Solicitor General who argues the government’s cases before the Supreme Court, and other key officials in the Justice Department come before the Senate. Did you see the ad in Roll Call from the Judicial Confirmation Network calling for a slow-down in the confirmation process for Justice Department officials? Or the Wall Street Journal editorial calling for a slow, deliberative process for confirming the president’s nominees—the exact opposite of what they said when Bush nominees were before the Senate? And that was just yesterday.
In the past few days, we have also heard from the editorial board of The Los Angeles Times [link], echoing Senator Arlen Specter’s calls to renominate some of President Bush’s nominees—including the controversial Peter Keisler. Newsweek’s Stuart Taylor intimated that should President Obama pick a progressive for the Supreme Court, he would be turning his back on bipartisanship.
The president’s nominees to the Justice Department and later to the courts face a network of ultraconservative legal outlets (JCN, Federalist Society), corporate special interest organizations (National Association of Manufacturers), foundations (Mellon and Scaife Foundations), and elected officials all focused on one goal: maintaining a federal bench that continues to rule on behalf of the wealthy and powerful, at the expense of hard-working Americans.
If they succeed, what does that mean for the American people? It means federal courts packed with ultraconservatives who don’t put the constitution first, and who toss fair pay out the window, lift environmental protections, and give big corporations a pass when it comes to product safety. It means courtrooms where the outcome is decided by the political affiliation of the judge, not the merits of a specific case.
But this is a new day. Americans voted for change, and now it’s up to all of us to help President Obama deliver. He has nominated Justice Department officials with strong qualifications and a deep-seated respect for our core constiutional values. They should be confirmed without delay, so that they can get to work on cleaning up the huge mess that the Bush administration left behind, restore the integrity of the Justice Department, and move on to ensure justice for hard-working Americans.
President Bush’s judges have backed the corporate special interests at the expense of everybody else – and without a proper regard for the constitution. There are many vacancies on federal courts around the nation. President Obama has a unique opportunity to appoint highly qualified judges who can make the words “equal justice for all” mean something again.
Published on Huffington Post
Americans want judges who believe the constitution provides for equal justice for all, not just the wealthy and powerful. President Obama has said he plans to appoint highly qualified individuals who respect the law to federal judgeships.
So that should give us common ground with all of those conservative groups who have argued for the past eight years that respect for the constitution is the most important thing when choosing judges, right?
Not so fast. They are singing a different tune, now that it’s President Obama who will make the nominations. I don’t find this surprising. The current Supreme Court has consistently ruled in favor of corporate special interests at the expense of the average, hard-working American – instead of applying the constitution to ensure equal justice for all. A president who nominates judges that enforce the laws that protect the environment, or give us access to justice when we’re harmed by dangerous drugs, is not exactly singing from their song book.
Don’t believe me? Take a look at how President Obama’s nominees to run the Justice Department are faring at the hands of those conservative groups. It started with the Holder hearings last month and is heating up as the Deputy Attorney General, the Solicitor General who argues the government’s cases before the Supreme Court, and other key officials in the Justice Department come before the Senate. Did you see the ad in Roll Call from the Judicial Confirmation Network calling for a slow-down in the confirmation process for Justice Department officials? Or the Wall Street Journal editorial calling for a slow, deliberative process for confirming the president’s nominees—the exact opposite of what they said when Bush nominees were before the Senate? And that was just yesterday.
In the past few days, we have also heard from the editorial board of The Los Angeles Times [link], echoing Senator Arlen Specter’s calls to renominate some of President Bush’s nominees—including the controversial Peter Keisler. Newsweek’s Stuart Taylor intimated that should President Obama pick a progressive for the Supreme Court, he would be turning his back on bipartisanship.
The president’s nominees to the Justice Department and later to the courts face a network of ultraconservative legal outlets (JCN, Federalist Society), corporate special interest organizations (National Association of Manufacturers), foundations (Mellon and Scaife Foundations), and elected officials all focused on one goal: maintaining a federal bench that continues to rule on behalf of the wealthy and powerful, at the expense of hard-working Americans.
If they succeed, what does that mean for the American people? It means federal courts packed with ultraconservatives who don’t put the constitution first, and who toss fair pay out the window, lift environmental protections, and give big corporations a pass when it comes to product safety. It means courtrooms where the outcome is decided by the political affiliation of the judge, not the merits of a specific case.
But this is a new day. Americans voted for change, and now it’s up to all of us to help President Obama deliver. He has nominated Justice Department officials with strong qualifications and a deep-seated respect for our core constiutional values. They should be confirmed without delay, so that they can get to work on cleaning up the huge mess that the Bush administration left behind, restore the integrity of the Justice Department, and move on to ensure justice for hard-working Americans.
President Bush’s judges have backed the corporate special interests at the expense of everybody else – and without a proper regard for the constitution. There are many vacancies on federal courts around the nation. President Obama has a unique opportunity to appoint highly qualified judges who can make the words “equal justice for all” mean something again.
Conservatives Gear Up For Judges Fight
As we’ve been saying repeatedly, Republicans are gearing up for a fight over President Obama’s judicial nominees -- whoever they end up being. Spurred by speculation over the seriousness of Justice Ruth Bader Ginsburg’s illness, as well as confirmation proceedings for the president’s senior level Justice Department nominees, conservatives on and off the Hill have been throwing red meat to their base, hoping to energize them for the battles to come. Think we’re being paranoid? Just check out yesterday’s article on FOXNews.com: “Kagan Confirmation Hearing Doubles as Vetting for Potential New Justice”.
FOX News, hardly as fair and balanced as they let on, suggested that despite the lack of partisan fireworks that might accompany a judicial confirmation hearing, Republican members of the Senate Judiciary Committee used Elena Kagan’s hearing -- on her solicitor general nomination -- to test out opposition messages. As the article points out, its long been presumed that Ms. Kagan is on the Obama administration’s “short list” for any future Supreme Court vacancies, and Senate Republicans certainly weren’t going to let an opportunity to muddy her record pass them by.
Sen. Jon Kyl (R-AZ) raised concerns about the breadth of Ms. Kagan’s experience, arguing that her extensive legal background is lacking in sufficient litigation experience. Then, it was Sen. Arlen Specter’s (R-PA) turn. The ranking member of the Senate Judiciary Committee questioned Ms. Kagan on the president’s view that ample “heart and empathy” are desirable qualities in any Supreme Court justice. Drawing a clear connection between the Court and Ms. Kagan, Sen. Specter then asked her to acknowledge that it is the responsibility of federal judges, as well as DOJ officials to “follow the law.”
Despite the highly qualified nature of President Obama’s Justice Department nominees, almost all of them have faced considerable opposition from conservatives. Eric Holder was put through the ringer over his participation in President Clinton’s administration. David Ogden has been criticized for his position that pornography is protected by the First Amendment. And poor Tom Perrelli has been demonized for his participation in the Terri Schiavo case. As AFJ President Nan Aron told CNN, “Republican senators are gearing up for a fight…the fight of their lifetime.”
FOX News, hardly as fair and balanced as they let on, suggested that despite the lack of partisan fireworks that might accompany a judicial confirmation hearing, Republican members of the Senate Judiciary Committee used Elena Kagan’s hearing -- on her solicitor general nomination -- to test out opposition messages. As the article points out, its long been presumed that Ms. Kagan is on the Obama administration’s “short list” for any future Supreme Court vacancies, and Senate Republicans certainly weren’t going to let an opportunity to muddy her record pass them by.
Sen. Jon Kyl (R-AZ) raised concerns about the breadth of Ms. Kagan’s experience, arguing that her extensive legal background is lacking in sufficient litigation experience. Then, it was Sen. Arlen Specter’s (R-PA) turn. The ranking member of the Senate Judiciary Committee questioned Ms. Kagan on the president’s view that ample “heart and empathy” are desirable qualities in any Supreme Court justice. Drawing a clear connection between the Court and Ms. Kagan, Sen. Specter then asked her to acknowledge that it is the responsibility of federal judges, as well as DOJ officials to “follow the law.”
Despite the highly qualified nature of President Obama’s Justice Department nominees, almost all of them have faced considerable opposition from conservatives. Eric Holder was put through the ringer over his participation in President Clinton’s administration. David Ogden has been criticized for his position that pornography is protected by the First Amendment. And poor Tom Perrelli has been demonized for his participation in the Terri Schiavo case. As AFJ President Nan Aron told CNN, “Republican senators are gearing up for a fight…the fight of their lifetime.”
Tuesday, February 10, 2009
Will Roberts Recuse Himself from Landmark Preemption Case?
Speculation has been heating up lately that Chief Justice John Roberts might recuse himself from Wyeth v. Levine, arguably this term’s most important consumer rights case. Following news that pharmaceutical giant Pfizer would be purchasing the similarly massive Wyeth, court watchers started to question whether the buy-out would have any effect on pending litigation that involved the companies – particularly Wyeth’s Supreme Court challenge to Diana Levine’s Vermont liability case.
It turns out that Chief Justice Roberts owns stock in Pfizer, the value of which might decrease if Wyeth were to lose its challenge. Because of this, Diana Levine’s lawyers have requested that he remove himself from the case. This request is hardly unusual. In May of last year, Chief Justice Roberts recused himself from deliberations in Warner-Lambert Co. v. Kent because he owned stock in the company -- also a pharmaceutical manufacturer. His colleague, Justice Samuel Alito, recused himself that same month in Exxon Shipping Co. v. Baker because he owned stock in the oil giant.
While no one knows if Chief Justice Roberts will chose to remove himself, his decision to do so would probably bode much better for Ms. Levine and supporters of corporate accountability. Still, there is no guarantee that even without the chief justice’s conservative vote Diana will prevail. Last year, the Supreme Court decided Riegel v. Medtronic, a case with similar implications, by a margin of 8-1.
It turns out that Chief Justice Roberts owns stock in Pfizer, the value of which might decrease if Wyeth were to lose its challenge. Because of this, Diana Levine’s lawyers have requested that he remove himself from the case. This request is hardly unusual. In May of last year, Chief Justice Roberts recused himself from deliberations in Warner-Lambert Co. v. Kent because he owned stock in the company -- also a pharmaceutical manufacturer. His colleague, Justice Samuel Alito, recused himself that same month in Exxon Shipping Co. v. Baker because he owned stock in the oil giant.
While no one knows if Chief Justice Roberts will chose to remove himself, his decision to do so would probably bode much better for Ms. Levine and supporters of corporate accountability. Still, there is no guarantee that even without the chief justice’s conservative vote Diana will prevail. Last year, the Supreme Court decided Riegel v. Medtronic, a case with similar implications, by a margin of 8-1.
Monday, February 9, 2009
Rhetoric over Judges Already Heating Up
It seems that news of Justice Ginsburg’s illness has energized conservatives who have been gearing up for a fight over President Obama’s (eventual) Supreme Court nominees. While no one knows for sure whether the president will have an opportunity to appoint anyone to the highest court in the land, the odds are in his favor. And during the campaign, Republicans used this fact against him. Now, it seems, they’re at it again.
As Christy Hardin Smith noted on FireDogLake, conservative messages have been cropping up in some big-time news publications when it comes to any judges President Obama might appoint. The Los Angeles Times called for the president to “end the judge wars” by heeding Sen. Arlen Specter’s (R-PA) calls to re-nominate some of President Bush’s nominees -- particularly Peter Keisler. And this weekend, Newsweek’s Stuart Taylor seemed to suggest that if President Obama were to appoint a strong progressive to the Supreme Court, it would signal a lack of concern for “bipartisanship.”
Well, how quickly we forget. During the last eight years, the idea of “bipartisanship” espoused by Senate Republicans was to quietly accept whomever the president selected. Many conservatives were outraged when Sen. Carl Levin (D-MI) made a deal with President Bush to re-nominate Helene White to the Sixth Circuit – a nominee originally put forward by President Clinton. Now many of the same people who decried the White nomination are calling on the Obama administration to roll over and do the same.
In an interview with CNN this weekend, AFJ President Nan Aron said that Republicans are already testing their opposition messages for their fight against President Obama’s nominees. “I think we saw during Eric Holder’s hearing, Republican senators testing out messages -- not designed to deny confirmation to Eric Holder, but to test them to see whether they'd work with some of Obama's judicial nominees.” This new wave of calls for a certain type of nominee is likely part and parcel of a larger effort to test messages and gear up for a fight should the time come.
Bipartisanship does not mean ignoring core constitutional principles like liberty, equality and justice for all when making judicial nominations, a distinction we are sure President Obama -- who just happens to be a former professor of constitutional law -- understands quite well.
As Christy Hardin Smith noted on FireDogLake, conservative messages have been cropping up in some big-time news publications when it comes to any judges President Obama might appoint. The Los Angeles Times called for the president to “end the judge wars” by heeding Sen. Arlen Specter’s (R-PA) calls to re-nominate some of President Bush’s nominees -- particularly Peter Keisler. And this weekend, Newsweek’s Stuart Taylor seemed to suggest that if President Obama were to appoint a strong progressive to the Supreme Court, it would signal a lack of concern for “bipartisanship.”
Well, how quickly we forget. During the last eight years, the idea of “bipartisanship” espoused by Senate Republicans was to quietly accept whomever the president selected. Many conservatives were outraged when Sen. Carl Levin (D-MI) made a deal with President Bush to re-nominate Helene White to the Sixth Circuit – a nominee originally put forward by President Clinton. Now many of the same people who decried the White nomination are calling on the Obama administration to roll over and do the same.
In an interview with CNN this weekend, AFJ President Nan Aron said that Republicans are already testing their opposition messages for their fight against President Obama’s nominees. “I think we saw during Eric Holder’s hearing, Republican senators testing out messages -- not designed to deny confirmation to Eric Holder, but to test them to see whether they'd work with some of Obama's judicial nominees.” This new wave of calls for a certain type of nominee is likely part and parcel of a larger effort to test messages and gear up for a fight should the time come.
Bipartisanship does not mean ignoring core constitutional principles like liberty, equality and justice for all when making judicial nominations, a distinction we are sure President Obama -- who just happens to be a former professor of constitutional law -- understands quite well.
Friday, February 6, 2009
Justice Ginsburg Hospitalized With Cancer
Yesterday, Justice Ruth Bader Ginsburg, the only woman currently serving on the United States Supreme Court, was hospitalized for pancreatic cancer. News broke in the afternoon that she had undergone emergency surgery to remove a cancerous tumor, and that the surgery itself had gone well. Doctors said that the tumor was found late last month during a routine screening, and that it was believed to be in the early stages.
Justice Ginsburg, despite her delicate appearance, has quite the fighting spirit. She battled colon cancer nine years ago, and never missed a day of work. She also goes toe-to-toe with some of the Court’s most conservative voices. Last term, she read several scathing dissents from the bench, a rare move that made headlines across the country. For our part, Alliance for Justice wishes Justice Ginsburg a speedy recovery, and looks forward to many more years of her brilliant service.
Justice Ginsburg, despite her delicate appearance, has quite the fighting spirit. She battled colon cancer nine years ago, and never missed a day of work. She also goes toe-to-toe with some of the Court’s most conservative voices. Last term, she read several scathing dissents from the bench, a rare move that made headlines across the country. For our part, Alliance for Justice wishes Justice Ginsburg a speedy recovery, and looks forward to many more years of her brilliant service.
Thursday, February 5, 2009
Openly Gay Federal Judges: More Than a Dream?
As the progressive community adjusts to life with the Obama administration, the LGBT community is starting to dream about the possibility of openly gay federal judges. The Bay Area Reporter, a San Francisco outlet, published an article today examining the possibility of just such appointments.
Of the more than 1,300 federal judges, only one, Deborah Batts (appointed by President Clinton to the South District of New York), is believed to be openly gay. And news of her sexual orientation was not known until after her confirmation. Robert Raben, founder of the Raben Group and Alliance for Justice board member, called the lack of LGBT judges “absurd” and in January, Lambda Legal Defense and Education Fund wrote a letter to President Obama calling for “fair and impartial nominees…who will address issues facing [the LGBT community] without bias.”
Following Lambda’s lead, many LGBT advocacy organizations are preparing to push the issue further. Both the Human Rights Campaign and the Gay & Lesbian Victory Fund are compiling lists of qualified LGBT candidates to provide to the Obama administration and AFJ has worked with all three organizations on gathering these names. But despite assurances by the new president that he is sympathetic to the goals of LGBT Americans, appointing out judges is likely to be a Herculean feat.
In 2007, one of President Bush’s own nominees faced Republican opposition simply because she attended the commitment ceremony of a family friend. Sen. Sam Brownback (R-KS) blocked her nomination for months, claiming that her attendance at the ceremony signaled her support for gay marriage. If a heterosexual Republican nominee faced that kind of opposition in the Senate, just imagine what an openly LGBT candidate, nominated by a Democratic president might face. Silver lining? Sen. Brownback no longer serves on the Senate Judiciary Committee.
Of the more than 1,300 federal judges, only one, Deborah Batts (appointed by President Clinton to the South District of New York), is believed to be openly gay. And news of her sexual orientation was not known until after her confirmation. Robert Raben, founder of the Raben Group and Alliance for Justice board member, called the lack of LGBT judges “absurd” and in January, Lambda Legal Defense and Education Fund wrote a letter to President Obama calling for “fair and impartial nominees…who will address issues facing [the LGBT community] without bias.”
Following Lambda’s lead, many LGBT advocacy organizations are preparing to push the issue further. Both the Human Rights Campaign and the Gay & Lesbian Victory Fund are compiling lists of qualified LGBT candidates to provide to the Obama administration and AFJ has worked with all three organizations on gathering these names. But despite assurances by the new president that he is sympathetic to the goals of LGBT Americans, appointing out judges is likely to be a Herculean feat.
In 2007, one of President Bush’s own nominees faced Republican opposition simply because she attended the commitment ceremony of a family friend. Sen. Sam Brownback (R-KS) blocked her nomination for months, claiming that her attendance at the ceremony signaled her support for gay marriage. If a heterosexual Republican nominee faced that kind of opposition in the Senate, just imagine what an openly LGBT candidate, nominated by a Democratic president might face. Silver lining? Sen. Brownback no longer serves on the Senate Judiciary Committee.
Wednesday, February 4, 2009
Turn Up the Heat!
Today at the park near the U.S. Senate, a coworker and I joined thousands of people for a rally in support of the Employee Free Choice Act. This legislation would restore workers’ freedom to bargain for a better life, and make our economy work for everyone. The rally was a kick off for the delivery of petitions signed by over 1 million people asking Congress to pass this new law. Workers from dozens of national and local unions from the Teamsters to SEIU and the AFL-CIO to the United Steel Workers were there, along with progressive organizations like Alliance for Justice, the Sierra Club and other members of the Blue-Green Alliance.
Senator Tom Harkin (D–IA) (wearing the red scarf in the photo) fired up the crowd and urged us all to turn up the heat to pass the bill in Congress. President Obama has promised to sign this critical legislation.
Though the day was cold, the fire in our hearts burned bright. Getting off to a great start with the Lilly Ledbetter Fair Pay Act victory, it is clear that the Obama administration and this new Congress are ready to stand up for the rights of working families. It’s time to turn up the heat and win laws that encourage equality and fairness in the workplace.
Kathy Plate, Online Organizer, Alliance for Justice
Senator Tom Harkin (D–IA) (wearing the red scarf in the photo) fired up the crowd and urged us all to turn up the heat to pass the bill in Congress. President Obama has promised to sign this critical legislation.Though the day was cold, the fire in our hearts burned bright. Getting off to a great start with the Lilly Ledbetter Fair Pay Act victory, it is clear that the Obama administration and this new Congress are ready to stand up for the rights of working families. It’s time to turn up the heat and win laws that encourage equality and fairness in the workplace.
Kathy Plate, Online Organizer, Alliance for Justice
Tuesday, February 3, 2009
Should Teens be Sentenced to Life Without Parole?
Should kids be locked up for life when they commit serious crimes? It's a question the U.S. Supreme Court may soon address if it agrees to hear the appeal of Joe Sullivan, a Florida man who is serving a life without parole sentence for crimes he committed when he was just 13.
Sullivan has spent 20 years in jail for the rape and robbery of a 72-year-old woman. He admits that he and two older boys did break into the victims home, but has consistently maintained that he did not participate in raping the victim. According to the New York Times, evidence in the prosecutor's case against Sullivan is shaky. For example, the woman he is accused of raping could not positively identify Sullivan as her attacker. She could only remember that the assailant was “a colored boy” who “had kinky hair” and was “quite black.” When Sullivan was made to repeat a phrase that the rapist had said during the attack, the victim could only say that Sullivan's voice sounded “similar” to her attacker's.
Sullivan’s attorneys have not asked the Supreme Court to overturn their client's conviction. They have, however, asked the Justices to consider whether the sentence of life without the possibility of parole for child offenders is "cruel and unusual" punishment. According to both court papers and a report by the Equal Justice Initiative, only eight people in the entire world are currently serving life sentences for crimes they committed when they were 13. All of them are in the United States. Only two of those boys were convicted of crimes other than murder, and each of those cases involved an African American defendant convicted in Florida.
Noting the rarity of these cases, the Times reported that there has been only one other appeals court decision addressing whether a teenager can receive a life without parole sentence for the crime of rape. That case originated in Kentucky, where an appeals court ultimately struck down the sentencing provision banning parole for young offenders. The appeals court found that juveniles “are not permitted to vote, to contract, to purchase alcoholic beverages or to marry without the consent of their parents…it seems inconsistent that one be denied the fruits of the tree of the law, yet subjected to all of its thorns.”
It is unknown whether the Supreme Court will accept Sullivan's appeal, but the Court has asked Florida to provide a response in the case - an indication that at least one Justice has decided to probe further into the question at hand.
Sullivan has spent 20 years in jail for the rape and robbery of a 72-year-old woman. He admits that he and two older boys did break into the victims home, but has consistently maintained that he did not participate in raping the victim. According to the New York Times, evidence in the prosecutor's case against Sullivan is shaky. For example, the woman he is accused of raping could not positively identify Sullivan as her attacker. She could only remember that the assailant was “a colored boy” who “had kinky hair” and was “quite black.” When Sullivan was made to repeat a phrase that the rapist had said during the attack, the victim could only say that Sullivan's voice sounded “similar” to her attacker's.
Sullivan’s attorneys have not asked the Supreme Court to overturn their client's conviction. They have, however, asked the Justices to consider whether the sentence of life without the possibility of parole for child offenders is "cruel and unusual" punishment. According to both court papers and a report by the Equal Justice Initiative, only eight people in the entire world are currently serving life sentences for crimes they committed when they were 13. All of them are in the United States. Only two of those boys were convicted of crimes other than murder, and each of those cases involved an African American defendant convicted in Florida.
Noting the rarity of these cases, the Times reported that there has been only one other appeals court decision addressing whether a teenager can receive a life without parole sentence for the crime of rape. That case originated in Kentucky, where an appeals court ultimately struck down the sentencing provision banning parole for young offenders. The appeals court found that juveniles “are not permitted to vote, to contract, to purchase alcoholic beverages or to marry without the consent of their parents…it seems inconsistent that one be denied the fruits of the tree of the law, yet subjected to all of its thorns.”
It is unknown whether the Supreme Court will accept Sullivan's appeal, but the Court has asked Florida to provide a response in the case - an indication that at least one Justice has decided to probe further into the question at hand.
Monday, February 2, 2009
Free Press Op-Ed Spreads Preemption Myth
Last week, the Detroit Free Press published an op-ed by Sally Pipes, CEO of the Pacific Research Institute, actually supporting pharmaceutical giant Wyeth’s claim in the Supreme Court case, Wyeth v. Levine. Interestingly, Ms. Harris draws a connection between Wyeth, arguably the most important consumer rights case to be heard this term, and Democratic ties to the tort bar. While we are hardly surprised by the attempt to smear both the Democratic Party and tort lawyers, the case has little to do with their relationship.
Ms. Levine sued Wyeth pharmaceuticals herself, without any nudging from the tort bar or the Democratic Party. She did so originally, not to push an agenda, but simply to hold Wyeth responsible for the tragic loss of her arm, and her livelihood. It wasn’t until Wyeth, with the support of conservative groups like the Chamber of Commerce, attempted to have the case dismissed under the guise of federal “preemption,” that Ms. Levine took up the cause, fighting for the protection of all consumers and their freedom to hold corporations accountable for their actions.
Ms. Pipes would have you believe that all liability suits are simply ways for greedy tort lawyers to squeeze money out of defenseless businesses. While that might play well in her circles, the truth is that many of these lawyers are the only line of defense for average Americans, harmed by products marketed by these corporate titans. And while the Food and Drug Administration is responsible for ensuring a minimum level of safety for medications, like the one at issue in this case, it simply does not have the resources to bear that responsibility alone.
Ms. Pipes suggest that Wyeth is an opportunity to rein in a society that has become overly litigious. In reality, it is simply an effort by conservatives to provide blanket immunity to their favorite donor base, big business. And if successful, it is us, regular Americans, like Diana Levine, who will pay the ultimate price. Watch our film, Access Denied, to learn more about Ms. Levine’s story, and sign our petition to ensure corporate accountability. Make sure that Ms. Levine, and all of us, do not have the doors of justice slammed shut before us.
Ms. Levine sued Wyeth pharmaceuticals herself, without any nudging from the tort bar or the Democratic Party. She did so originally, not to push an agenda, but simply to hold Wyeth responsible for the tragic loss of her arm, and her livelihood. It wasn’t until Wyeth, with the support of conservative groups like the Chamber of Commerce, attempted to have the case dismissed under the guise of federal “preemption,” that Ms. Levine took up the cause, fighting for the protection of all consumers and their freedom to hold corporations accountable for their actions.
Ms. Pipes would have you believe that all liability suits are simply ways for greedy tort lawyers to squeeze money out of defenseless businesses. While that might play well in her circles, the truth is that many of these lawyers are the only line of defense for average Americans, harmed by products marketed by these corporate titans. And while the Food and Drug Administration is responsible for ensuring a minimum level of safety for medications, like the one at issue in this case, it simply does not have the resources to bear that responsibility alone.
Ms. Pipes suggest that Wyeth is an opportunity to rein in a society that has become overly litigious. In reality, it is simply an effort by conservatives to provide blanket immunity to their favorite donor base, big business. And if successful, it is us, regular Americans, like Diana Levine, who will pay the ultimate price. Watch our film, Access Denied, to learn more about Ms. Levine’s story, and sign our petition to ensure corporate accountability. Make sure that Ms. Levine, and all of us, do not have the doors of justice slammed shut before us.
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