Senator Lugar to Support Johnsen Confirmation

Senator Richard Lugar (R-IN) announced his support for the nomination of Dawn Johnsen to head the Office of Legal Counsel at the Department of Justice.

The senator went on the record with Sylvia Smith of the Fort Wayne Journal Gazette following a press briefing by Indiana University Maurer School of Law faculty members Dean Lauren Robel and Professor Aviva Orenstein. Dean Robel and Professor Orenstein discussed a letter signed by more than 70 law professors from around Indiana urging Senator Lugar to support confirmation of Dawn Johnsen. "We know Dawn Johnsen quite well, we have worked with her for 13 years, we've read her scholarship, we've engaged with her around the issues that are important to this office, and we have absolutely no doubt about her qualifications for this office," declared Dean Robel. "We have special areas of expertise: we know law and we know Dawn," added Professor Orenstein. "And in both those areas, I think that... Senator Lugar would appreciate our knowledge of what the job requires and how it should be executed as well as our knowledge of who Dawn is as a person."

Take Action: Call your senators and ask them to call for a vote on Johnsen’s nomination.

A vote has not been scheduled on Johnsen’s nomination. With all of the important issues facing our government, President Obama needs the highly qualified Johnsen at work leading the Office of Legal Counsel. The Senate should schedule a vote and confirm Prof. Johnsen without further delay.

Supreme Court to Re-examine Voting Rights Act

Are protections for voting rights still needed after President Obama’s historic election?

Will archconservatives on the Court use this case as a vehicle to turn its back on voting rights, re-assert "states' rights" and reject the federal oversight needed to protect all voters?

Supreme Court hears arguments today.

The landmark Voting Rights Act (VRA), originally enacted into law in 1965, establishes comprehensive safeguards against discrimination in voting based on race, color, national origin or language status. The Act is widely regarded as one of the most successful laws ever enacted by Congress.

The major question the Supreme Court confronts is exactly what standard Congress must use in federal oversight of state and local voting.

Read more about this case, Northwest Austin Municipal Utility District No. 1 v. Holder, et al., No. 08-322.

From Huffington Post: Fair Judges Needed to Win Fair Pay

Read Nan Aron's entire post on Huffington.

Today, April 28, 2009, is Equal Pay Day.

Today marks the point when the average woman's wages finally catch up with what the average man earned last year.

Women still earn only 78 cents for every dollar earned by a man, and for women of color, the numbers are even worse. Equal Pay Day is an important reminder of this persistent wage gap and the urgent need to take action to ensure that women receive equal pay for equal work.

We've made some progress in the fight for equal pay - the first bill President Obama signed into law was the Lilly Ledbetter Fair Pay Act. That law reversed a damaging Supreme Court decision, which had severly limited the rights of women challenging discriminatory pay..
But the Ledbetter legislation just returned the law to what it had been for decades, before the Roberts Court interfered. We need to pass new legislation to win the fight for fair pay.

The Senate must pass the Paycheck Fairness Act S. 182, a vital next step toward achieving equal pay for equal work by amending the Equal Pay Act. President Kennedy signed the Equal Pay Act 45 years ago, making it illegal for employers to pay women less than men for the same work. But loopholes in the law and weak enforcement from the courts allowed many discriminatory practices to continue. The Paycheck Fairness Act addresses these concerns and equips women with the necessary tools with which to fight unequal pay.

Supreme Court Heard Employment Discrimination Case Today

Last week we told you about this case in our Full Court Press post. You can read the full transcript from today's oral arguments here.

Almost two years ago, in a 5-4 decision, Chief Justice Roberts, newly appointed by President George W. Bush, wrote a decision dismantling decades of precedent when he rejected efforts by Seattle and Louisville to ensure that their schools were racially integrated. Justice Kennedy joined the four reliable opponents of any remedies for past segregation but left the door open for a future case in which the goal of integrating schools might allow a school district to take race into account in assigning students to schools. Today, the Court heard arguments in a case from New Haven, Connecticut, that may test if that door remains open at all, or will be shut forever against efforts to promote racial diversity -- this time in the workplace rather than schools.

Also worth reading is Dahlia Lithwick's post about the case argued in front of the Supreme Court yesterday, Safford United School District v. Redding

Full Court Press: Court Hears Case on School Strip Search

The next two weeks will be busy, as the Supreme Court hears the last arguments of this term.

Read about the impact these two cases could have on school children’s rights and efforts to address discrimination in the workplace.

Next week, look for our analysis of an important voting rights case that will be argued before the Court on April 29.

Should Schools Strip Search Children?

School officials seek Court’s approval to transform a hunt for ibuprofen into a central front in the education system's war on drugs.

The Supreme Court heard arguments yesterday on whether school children have a Fourth Amendment right to be free of unreasonable searches.

Savana Redding, a 13-year-old, was subjected to a strip search at her middle school to determine if she was the source of ibuprofen pills among some fellow students. With Savana traumatized and humiliated by the search -- which found no drugs -- her mother sued the school district, the Vice Principal who gave the order, and the staff who conducted the search.

Read about this case, Safford United School District v. Redding.

Whitehouse, Dellinger & the Johnsen Nomination

Well, recess is over. But, just because Congress was gone for two weeks doesn’t mean anyone in town was resting (at least we weren’t here at Justice Watch). Last week, we were lucky enough to be joined by Senator Sheldon Whitehouse (D-RI) and former Solicitor General Walter Dellinger for a conference call on the nomination of Dawn Johnsen to head the Office of Legal Counsel at the Department of Justice.

Both the senator and Mr. Dellinger provided some wonderful insights, though you don’t have to take our word for it. Check out the reports on the call from Talking Points Memo, BuzzFlash and Firedoglake.

Meanwhile, yesterday, Senate Republicans picked up where they left off prior to the recess—making noises and unfounded statements about the record of this exceptionally qualified nominee. There were even whispers of the f word—something of a change of position for many Republicans as Mr. Dellinger pointed out in the Wall Street Journal. Blocking the president’s nominee would be an interesting 180 turn for many senators, particularly those like John Cornyn who so vehemently spoke about the constitutional role of the Senate in rubberstamping a president’s nominees regardless of qualifications (see Cornyn’s full-throated support of Alberto Gonzales to head the Justice Department, among other things) back when his party held the White House.

Of course, Dawn Johnsen is no Alberto Gonzales. She is a renowned legal scholar. She has bipartisan support. She has made it clear that she understands the most important qualification for the head of the OLC is an ability to say no to the president. Approving her nomination would not be rubberstamping, it would be ensuring that an exceptionally important position in the Department of Justice is filled by the individual most qualified for the task. Advice and consent at its finest.

Full Court Press: Supreme Court to Hear Employment Discrimination Case

The Roberts Court Faces Integration in the Workplace:
Will Justice Kennedy Stick with the Archconservatives?

Almost two years ago, in a 5-4 decision, Chief Justice Roberts, newly appointed by President George W. Bush, wrote a decision dismantling decades of precedent when he rejected efforts by Seattle and Louisville to ensure that their schools were racially integrated.

Justice Kennedy joined the four reliable opponents of any remedies for past segregation but left the door open for a future case in which the goal of integrating schools might allow a school district to take race into account in assigning students to schools.

Next week, the Court will hear arguments in a case from New Haven, Connecticut, that may test if that door remains open at all, or will be shut forever against efforts to promote racial diversity -- this time in the workplace rather than schools.

Read more about this case, Ricci v. DeStefano.

Times Lauds Hamilton as an 'Impressive First Nominee'

Today's New York Times has an excellent editorial about President Obama's first judicial nominee, David Hamilton. Judge Hamilton is nominated to an Indiana seat on the Seventh Circuit Court of Appeals. The editorial recognizes not only Hamilton's bipartisan support-he has the approval of both Senator Bayh (D-IN) and Senator Lugar(R-IN) from his home state-but also Judge Hamilton's excellent record in the law.

Senate Republicans, however, are currently creating a fuss over the nomination-they boycotted Judge Hamilton's hearing and conservative commentators barely stopped for breath before they began attempting to mischaracterize his record. Clearly, they realize that Hamilton will not carry out the kind of political agenda that America got from President Bush's judicial appointees, including his nominees to the Supreme Court.

The politicized Supreme Court ruled that Goodyear could cheat Lily Ledbetter, who worked there for 19 years, out of tens of thousands of dollars in pay. It took away the long established right of a man who was injured because of a defective heart device to hold the manufacturer accountable for the damage. It said that government officials can fire or demote whistleblowers for exposing corruption, waste, or fraud to their supervisors. It ruled that customers can't sue bankers or others who helped corporations such as Enron to defraud them.

Hamilton also received a "well qualified" rating from the ABA (and speaking of the ABA, the Times had another great editorial yesterday about its role in the nomination process).

President Obama should continue to put forward highly qualified nominees like Judge Hamilton who will uphold our Constitution and the law to provide equal justice and protect personal freedoms for everyone in America, not just a few. As for the Senate. Well, Senate Democrats should see these Republican tactics for what they are -- attempts to block majority votes on nominees who won't support their political agenda.

We can't continue to have a country where there is one set of rules for a few at the top and a different set for the rest of us. Hamilton has shown that unlike the nominees favored by President Bush, he will not put politics ahead of sound legal principles. David Hamilton should be approved without delay when the Senate comes back from recess.

Bipartisan Support Continues to Grow for Johnsen and Koh

Post from Nan Aron on Huffington Post:

This weekend two prominent conservatives added their voices to the calls to confirm Dawn Johnsen and Harold Koh. Douglas Kmiec and Kenneth Starr have come out in unequivocal support for Johnsen and Koh respectively.

Kmiec has long been a leading conservative legal scholar; he currently holds the Caruso Family Chair at Pepperdine University School of Law. He also held the same job to which Dawn Johnsen has been nominated: assistant attorney general for the Office of Legal Counsel. He served that office under both Presidents Ronald Reagan and George H.W. Bush. So, as a former head of the OLC, he certainly understands the background and qualifications needed to handle the job. As he said in his endorsement of Johnsen in today's Legal Times, he recognizes that she is eminently qualified to take the helm at the OLC:

Dawn Johnsen's nomination to head the Justice Department's Office of Legal Counsel is caught up in an unjustified effort to hand President Barack Obama his first major loss. Some Senate Republicans seek to filibuster Johnsen into effective defeat. This would be a mistake... Her history demonstrates that Johnsen can and will separate law from politics and discharge the OLC's unique duty to assess the constitutionality and legality of executive initiative and legislative proposal. Even if the president did not also deserve the Senate's deference on the choice of his executive team, Dawn Johnsen merits confirmation.

In another surprising move, the Yale Daily News reports today that "in a speech at Yale Law School on Thursday, conservative icon Kenneth Starr announced his support for Koh [to be legal advisor to the State Department] before an audience of about 95 students and professors.

Starr, in addition to his most famous turn as an independent prosecutor, served as solicitor general under President George H.W. Bush and is currently dean of Pepperdine School of Law; his support of Koh is yet more evidence that Koh is extremely qualified and any attempts to stymie his nomination are little more than rank partisanship. As Akhil Amar, a professor at Yale University who attended Starr's speech, noted:

Amar said Starr's endorsement of Koh was also important given the past history between the two. When Koh challenged the right of the administration of George H.W. Bush... to detain Haitian refugees at Guantanamo Bay in the early 1990s, Starr -- then U.S. solicitor general -- argued on behalf of the administration. But Starr's respect for Koh never wavered, said Amar, who sat on a panel with Starr at Pepperdine in late March.

Starr and Kmiec were able to put politics aside and recognize how extraordinarily qualified both Koh and Johnsen are for the posts to which they are nominated. It is time for Senate Republicans to do the same. When Congress reconvenes next week the Senate should move to confirm these two exceptional individuals without delay.

Weekly Wrap-Up April 6-10, 2009

Check out AFJ's weekly Justice Digest e-newsletter for breaking news, the inside scoop on the federal judiciary and the confirmation process for federal judges. This week's installment features Nan Aron's post on the unanimous decision by the Iowa State Supreme Court declaring the state's gay marriage ban unconstitutional.

Click here to view our latest update.

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Full Court Press: Centuries of Tort Law Abandoned

A recent case from the Seventh Circuit (covering Illinois, Indiana, and Wisconsin) shows the adverse impact that conservative judges are having on long-established law. President Obama has nominated Judge David Hamilton to fill the sole vacancy on that court. This nomination signals that the president will select highly qualified judges who will uphold our Constitution and the law to provide equal justice and protect personal freedoms for everyone in America, not just a few.

Specter of Terrorism Prompts Conservatives on Seventh Circuit to Abandon Centuries of Tort Law

"This is judicial activism at its most plain... Our own response to a threat can sometimes pose as much of a threat to our civil liberties and the rule of law as the threat itself." Dissenting judge Ilana Rovner

Is a possible connection to terrorism a good reason to throw out well-established law governing liability?

For the majority of the Seventh Circuit, when a case touches on terrorism, assumptions and generalizations will do just fine, even if relying on them requires re-inventing age-old legal rules. Read more about this case.

Victory! Right Here In River City!

Nan Aron on Huffington Post:

The Iowa Supreme Court decision declaring the state’s gay marriage ban unconstitutional is undeniably a victory. It’s a victory for the LGBT community, a victory for equality and a reminder of the vitally important role judges and the courts play in upholding constitutional principles and defending freedoms.

Of course, this is just the sort of decision that ultra-conservatives like to use to gin up their base. But the charges of judicial activism and liberal judges legislating from the bench that they love to trot out—really just code for “decision we don’t like”—are particularly absurd in this instance. This was a unanimous decision issued by an ideologically diverse court. The Iowa Court spoke with one voice, fulfilling its most important duty: upholding the state constitution. The role of the judiciary is to review and interpret the laws to determine whether or not they fall within constitutional limitations. The role of the courts is not to take a backseat to the legislature or executive mansion when they are running roughshod over a constitution--the supreme law of the land. Or, to put it in the words of the Iowa Supreme Court itself:

These Iowans, believing that the law is inconsistent with certain constitutional mandates, exercised their constitutional right to petition the courts for redress of their grievance. This court, consistent with its role to interpret the law and resolve disputes, now has the responsibility to determine if the law enacted by the legislative branch and enforced by the executive branch violates the Iowa Constitution.

The court meticulously analyzed the marriage ban—faithfully applying the Iowa Constitution and many state statutes—and determined that it was fundamentally inconsistent with the Iowa Constitution’s promise that “the general assembly shall not grant to any citizen or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens (Iowa Const. art. I, § 6).”

Iowa’s ruling is in many ways an echo of what is arguably the greatest decision in modern Supreme Court history: Brown v. Board of Education, and not just because Brown was another unanimous decision handed down by an ideologically diverse court. Brown proved that the courts are a place for Americans to stand up for their freedoms. Brown showed us that sometimes the courts need to be the vanguard of upholding constitutional values when societal recognition of basic freedoms and equality lags behind. Once again, Iowa Supreme Court Justice Mark Cady says it beautifully:

Our responsibility, however, is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time. The framers of the Iowa Constitution knew, as did the drafters of the United States Constitution, that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” and as our constitution “endures, persons in every generation can invoke its principles in their own search for greater freedom” and equality.

The justices of the Iowa Supreme Court took seriously their obligation to uphold the state constitution and provide equal justice for all. As that court had done many times in the past—outlawing slavery, admitting women to the practice of law, striking down racial segregation—the judges of the Iowa Supreme Court once again “approached a fork in the road toward fulfillment of our constitution’s ideals and reaffirmed the ‘absolute equality of all’ persons before the law as ‘the very foundation principle of our government.’”

Why Did Republicans Boycott the Senate Judiciary Hearing on Hamilton?

Also on Huffington Post:

Most of the Senate Judiciary Committee's Republican members boycotted the confirmation hearing on President Obama's first judicial nominee, Judge David Hamilton.

A few weeks ago, all 41 Republican Senators sent a letter to President Obama , threatening that they will use filibusters to prevent majority votes on any nominee who will not rule based on the political agenda of the Republican senator from their home state.

Just what is that agenda? To find out, just look at the record of the judges President Bush put on the federal bench with the enthusiastic support of these same Republican senators. Recent appointees to the courts of appeals found that:

• Consumers can be required to pay for merchandise received in the mail even if they never ordered it.



• Hospital executives could fire a nurse after she said publicly that she believed new staffing policies jeopardized the health of mothers and their babies.



• An employee could be fired for complaining about serious racially inflammatory comments in the workplace.

Republicans were all in favor of a straight majority vote - with no filibustering - to support judges with that kind of political agenda.

With the appointment of Judge Hamilton, President Obama has signaled that he will nominate highly qualified judges who will uphold our Constitution and the law to provide equal justice and protect personal freedoms for everyone in America, not just a few.

The boycott is especially ironic given that Judge Hamilton not only meets those high standards, he is supported by the Republican Senator from his home state of Indiana, Richard Lugar (R-IN).

Still not sure that the Republicans are doing all they can to ensure the courts carry out their political agenda? What else explains the blatant hypocrisy of saying the Senate had no right to question President Bush's nominees, but President Obama must first get the Republicans' blessing before making his nominations?

Look at what Senator Mel Martinez (R-FL) said to Democrats about President Bush's nominees in a statement on the floor of the Senate in 2006:

"We simply do not have the prerogative of deciding who it is we would prefer to see on the Court or who it is we might find more philosophically suitable to us or more to our liking."

The American people can't let the Republicans block nominees who don't support their political agenda. We can't continue to have a country where there is one set of rules for a few at the top and a different set for the rest of us.

Find out more about Judge Hamilton and the Seventh Circuit Court of Appeals.

Everyday Americans Join Hollywood Stars on Capitol Hill

Dozens of people who have been harmed by faulty medical devices came to Washington, DC to share their stories with members of Congress on March 31 in support of the Medical Device Safety Act. They came because in 2008, the Supreme Court decided in Riegel v. Medtronic that medical device manufacturers cannot be held accountable for producing dangerous and defective products. The Medical Device Safety Act is critical legislation that will return the law to the way it was just over a year ago, allowing people like Avery Degroh, a five-year-old who was shocked by a malfunctioning defibrillator, a chance to receive justice.

In addition to these ordinary Americans, former West Wing cast members Martin Sheen, Bradley Whitford, and Richard Schiff were on the hill launching the “Faces of the Employee Free Choice Act Campaign.” Alliance for Justice Board Member Bradley Whitford (aka Josh Lyman), spoke about the importance of this legislation and emphasized the role of many civil rights groups in the fight pass the Employee Free Choice Act. In addition to a serious discussion about the need for worker protections, Whitford joked about his similarities to Rahm Emanuel.

To add your voice to the discussion on Capitol Hill, call or write your member of Congress today. It’s always a good idea to have the Capitol Switchboard number programmed into your cell phone, (202)224-3121.