Supreme Power

Over breakfast this morning, Alliance for Justice hosted a discussion between author Jeff Shesol and retired U.S. Court of Appeals Judge Patricia Wald about the relationship between the President of the United States and the Supreme Court.

Many of us have heard the phrase “the switch in time that saved nine,” but know little about the true story behind President Franklin D. Roosevelt’s court packing plan. In his new book, Supreme Power: Franklin Roosevelt vs. the Supreme Court, Shesol chronicles the power struggle between President Roosevelt and the Supreme Court following the passage of the New Deal — and the Court declaring parts of it unconstitutional.

After watching many of his reforms encounter stiff opposition from the “Four Horsemen” who made up the politically-savvy and conservative wing of the Supreme Court, Roosevelt decided to take action. Since the justices had lifetime appointments and could not be easily removed, Roosevelt decided that the answer was the Judiciary Reorganization Bill of 1937. The Constitution does not specify how many justices sit on the Supreme Court, so the bill sought to add an additional justice to the Supreme Court for every sitting justice over the age of 70. This would have resulted in Roosevelt adding six new judges to the Court -- raising the number of members of the Court from 9 to 15 -- and ensuring sufficient support for Roosevelt’s massive social reform legislation.

When the plan was conceived in 1937, Roosevelt had recently won reelection by a landslide and the Court was deeply unpopular. Roosevelt publicly justified the addition of six justices by explaining that elderly judges throughout the country were unable to keep up with the workload, and court dockets were suffering as a result.

Unfortunately for Roosevelt, the facts did not support his unsubstantiated claim of judicial overload. Mainstream newspapers were almost unanimous in their condemnation of the idea and the plan was hailed as a great idea by the Nazi press in Germany. The American public sent thousands of displeased telegrams to Congress. Ultimately, support for Roosevelt’ position eroded. While many shared Roosevelt’s displeasure with the Court’s conservatism, tampering with the institution seemed even to many liberals to represent excessive presidential power and a threat to the Constitution.

Roosevelt’s refusal to compromise his plan of adding six justices (Shesol notes that he may have been able to successfully add two, or even four seats to the Court), was a severe political miscalculation for the president. Luckily for Roosevelt, beginning in mid-1937, a number of conservative justices retired, providing the president with the opportunity to appoint several new justices who transformed the ideological balance of the Court.

Our thanks to Jeff Shesol and Judge Wald for a fascinating morning. Photos of the event can be found by clicking here. To learn more about the true story behind the court packing plan, you can watch Shesol speak about his book with Jeffrey Toobin on c-span.

AFJ President Nan Aron on Democracy Now!

Stevens Leaves Large Shoes to Fill

Justice Stevens’s announcement Friday that he will retire at the end of this term provides President Obama the rare opportunity to appoint two Supreme Court justices within his first term. Replacing Justice Stevens also presents the President with a great responsibility: filling the very large shoes left by a justice with a 35-year legacy of defending the personal freedoms and human dignity of everyday Americans. At the end of this term, the Court will lose not just an eloquent and outspoken defender of civil liberties, separation of powers, and access to justice, but also a master tactician who has often played a central role in forging coalitions on split decisions. Justice Stevens has often garnered the swing votes of other justices to join his defense of civil rights, environmental protections, and judicial oversight of executive power.

Justice Stevens’s retirement could not come at a more crucial time. Recent decisions of the Court in cases such as Citizens United are evidence of the Court’s increasingly pro-business agenda. Not shy about its lack of respect for precedent or its willingness to abandon principles of fundamental fairness, the Roberts Court has rewritten decades of law in order to protect powerful corporate interests at the expense of everyday Americans.

Without Justice Stevens’s strong, clear voice preserving the Constitution, personal freedoms, and separation of powers, the Court is all the more likely to move painfully and irrevocably rightward and away from the mainstream. The selection of Justice Stevens’s successor must not be rushed, or fall victim to partisan posturing. Americans deserve a fair and impartial justice who has a brilliant legal mind and is committed to defending the Constitution The President should pause, reflect, and carefully select a Justice who will stand up for everyday citizens, uphold core constitutional values, and promote equal justice for all, not just the powerful few. The Senate must look beyond politics and quickly confirm a qualified nominee. To do otherwise is to do a great disservice to the American people. We have lost too great a Justice; the stakes are simply too high.

Americans Are Ready for a Gay Justice

Just over a year ago, we asked if openly gay federal judges were more than a dream. Back then, we reported that of the more than 1,300 federal judges, only one, Deborah Batts (appointed by President Clinton to the Southern District of New York in 1994), was openly gay.

Now, a year later, a recent 60 Minutes/Vanity Fair poll shows that 55 percent of Americans would support an openly gay Supreme Court justice, with 40 percent saying they are opposed. With Justice Stevens likely to retire in the near future, President Obama may have an opportunity to nominate someone to the nation’s highest court in the near future. Of those on the likely short list is Pam Karlan, an out lesbian and a Stanford Law professor.

Of his 57 nominations to the federal circuit and district courts, none of President Obama’s nominees for the federal bench has been openly gay. That may change soon, however, since Senator Chuck Schumer (D-NY) has recommended Daniel Alter to serve on the U.S. district court for the Southern District of New York. If confirmed, he will become the first openly gay male on the federal bench.

The Roberts Court is Out of Touch With the American People

Earlier this week, Chief Justice John G. Roberts Jr. told law students in Alabama that Obama's criticism of the court during the State of the Union address was "very troubling." Roberts’ criticism of President Obama’s State of the Union speech shows just how out of touch the conservative majority on the Court has become. In his annual speech before Congress, the President attacked the Supreme Court’s Citizens United decision in which a narrow 5-4 majority radically transformed campaign finance laws. The ruling grants corporations the ability to spend unlimited amounts to influence the outcome of elections. Troubling, indeed.

Roberts was upset that the Justices had to “sit there expressionless” while the “members of [the elected legislature were] standing up, literally surrounding the Supreme Court, cheering and hollering.” Justice Alito’s furtive “not true” comment aside, perhaps the Chief Justice felt so disturbed because the court rarely has to confront the ire of those its decisions affect.

But Citizens United has served as a rallying cry. As Senator Amy Klobuchar (D-MN) noted in a recent Senate Judiciary Committee hearing, people are “freaking out” because the Court’s conservative 5-4 majority is transforming the legal framework in America to further a pro-business agenda. A recent Washington Post-ABC News poll shows that 80% of Americans oppose the Supreme Court’s decision in Citizens United. At a time when average Americans are struggling to survive economically, opening the floodgates to corporate campaign expenditures smacks of insensitivity and ignorance to the plight of ordinary people.

We applaud the President for reprimanding the court and giving voice to the frustration felt by so many Americans in the wake of Citizens United. Harry Reid also joined the fray on Wednesday criticizing the Court for being out of touch and engaging in “activism”, asking us to rethink who we put on the bench.

As we’ve said before, this decision should serve as a wake-up call to progressives who have allowed judicial nominations to sit on the back burner while conservatives pack the court, and to the administration, which has not treated judicial nominations as a top priority. President Obama should step up his commitment to nominating wise young judges who can change the jurisprudential conversation -- and progressives need look no further than Citizens United to see what happens if we don't pay attention to judicial selection and work to help confirm those nominees who will uphold our core constitutional values.

While Rumors Fly About Possible Supreme Court Vacancy, Senate Moves Forward With Nominees

With the news that Justice John Paul Stevens has hired only one clerk for the Supreme Court’s 2010-2011 term, many in DC are speculating that this may be his final term on the court. While Justice Stevens’ office has confirmed that he only hired one clerk, they would not comment on the possibility of retirement. Regardless of whether or not we’ll see another Supreme Court vacancy any time soon, the Senate Judiciary Committee is resuming their work to fill vacancies on the federal appeals and district courts. A hearing has been scheduled for next Wednesday, September 9th with Senator Whitehouse (D-RI) presiding.

The hearing will consider the nomination of Judge Joseph Greenaway to fill a seat on the Third Circuit Court of Appeals, in addition to district court nominees Roberto Lange for the District of South Dakota, Irene Berger for the District of West Virginia, and Charlene Honeywell for the Middle District of Florida. The hearing will also consider the nomination of Ignacia Moreno to be Assistant Attorney General for the Department of Justice’s Energy and National Resource Division. Hopefully, the scheduling of this hearing is a promising sign that the president’s nominees will move more quickly through the confirmation process now that Justice Sotomayor has been confirmed.

And speaking of Justice Sotomayor… Wednesday is shaping up to be quite the busy day. Justice Sotomayor will have an early start to her career as a Supreme Court justice when she hears her first oral argument next week during a special session, the reargument of Citizens United v. FEC. The full Supreme Court term will begin as usual, on the first Monday of October, this year on October 5, 2009.

Netroots Nation Wrap-Up and Follow-Up

The AFJ team had a great time at this year’s Netroots Nation convention meeting with top progressive bloggers, activists, organizers, and elected officials. The overall sense of this year’s convention is that we have entered into a progressive era in this country and if we continue our hard work we can achieve the change America needs.

One of the ways to ensure that the future is fair for all Americans is to avoid repeating the mistakes of our past. That is why we are calling on Attorney General Holder to launch a full-scale investigation of the "Torture Memos.”

For more about our vision for the future you can watch the video below featuring AFJ President Nan Aron on the Netroots panel “After Sotomayor: How Progressives Reshape Our Debate Over the Constitution and the Supreme Court.”

Senator Kyl Singing a Different Tune

Today, Senator Kyl (R-AZ) sharply questioned Judge Sotomayor about how her background may impact her decisions. He took a slightly different tack in his opening statement during the Alito hearing:

"With your intellect and education, you could have become a wealthy attorney, but instead you devoted virtually all of your legal career to the public service. In doing so, you meet, and even exceed, the stellar examples set by Justices Thomas and Souter, each of whom devoted most of their pre-judicial careers to public service. Perhaps this is because, like Justices Ginsburg and Scalia, you had a father who was an immigrant to this Nation. It seems that immigrants often have a special understanding of the incredible opportunities that this Nation affords its citizens."

Sotomayor Hearing Day 2

Today we start day two of the Sotomayor confirmation hearing, and it promises to be a more energetic day with the back and forth of questioning. Each senator will get 30 minutes of questioning ; like yesterday, order is determined by committee seniority. We expect Judge Sotomayor to field questions from Republican senators about her ability to be an unbiased judge, a question she touched on yesterday in her opening statement when she pledged “fidelity to the law.” In our recently released fact sheet on Race and the Law regarding this very issue, we observe :

“There is no evidence of any racial bias in any of the hundreds of decisions Judge Sotomayor has written. To the contrary, her jurisprudence in cases involving claims of racial discrimination is very much like her jurisprudence in other areas of the law. She is deliberate, measured, and adheres closely to precedent.”

Stay tuned as we will be releasing more fact sheets on our website as issues arise throughout the hearing.

Sotomayor Hearing Lunch Recess Update

During the lunch break we’d love to hear your thoughts and comments about the hearing thus far. If you’re not already, you can follow AFJ President Nan Aron on Twitter for live updates; her commentary has been complimented thus far by numerous tweeters including

@ cbhutton: RT @NanAron: has great coverage of the confirmation hearing! Best use of twitter I've seen.

You can read the full transcripts of the senators' opening statements on the Senate Judiciary Committee Website. So far eleven senators have given their statements, so eight more statements remain before we get to hear Judge Sotomayor’s opening statement. She will have an opportunity to respond more directly to some of the mischaracterizations of her record tomorrow, when the actual questioning begins.

The Sotomayor Record: Access to Justice

Today Alliance for Justice unveiled the first in a series of in-depth reports analyzing Supreme Court nominee Judge Sonia Sotomayor’s record.

This first report focuses on the issue of Access to Justice, which encompasses a variety of legal issues including justiciability, preemption, stripping courts of their jurisdiction to hear certain claims, sovereign immunity, recovering attorneys’ fees, interpretations of statutes of limitations, and certifying classes for class-action litigation. These issues illustrate the important role courts play in ensuring equal justice for all. The report analyzes Judge Sotomayor’s record in each of these areas and finds that…

“Judge Sonia Sotomayor has a careful, cautious, and reasoned approach to access
to justice issues. Her rulings are well within the legal mainstream.
She closely follows precedent, and analyzes facts with meticulous detail.
Judge Sotomayor shows no bias for or against plaintiffs. She shows
sensitivity toward persons bringing claims, but always grounds her decision
making on the law and binding authority.”

Visit our Supreme Court Watch page for more information and to read the report in its entirety.

Nan Aron on CSPAN

Alliance for Justice President, Nan Aron was on CSPAN this morning talking about Judge Sotomayor's nomination to the Supreme Court. You can watch it online here.

Justice the Video

The Coalition for Constitutional Values, a national coalition of the nation’s leading nonprofit and advocacy organizations, announced today that it will begin airing “Justice” a new 30-second television spot that will run on national network news and cable news starting today. The Coalition for Constitutional Values, whose members represent millions of Americans, believes it is important that the American people know about the qualities of their Supreme Court justices.

The new spot is part of a broader public education campaign launched by the Coalition for Constitutional Values, co-chaired by the Leadership Conference on Civil Rights, Alliance for Justice and People for the American Way. The Coalition hopes the spot will introduce the American public to Judge Sotomayor who has experience in nearly every aspect of the law, having served as a big-city prosecutor and a corporate litigator, a federal trial judge and an appellate judge.

"In selecting Judge Sotomayor, the president has nominated a candidate of sterling credentials who will uphold the Constitution and the law,” said Nan Aron, co-chair of the Coalition for Constitutional Values and president of Alliance for Justice. “We commend President Obama for choosing a brilliant and fair-minded jurist to serve on our nation’s highest court. Judge Sotomayor is precisely the kind of nominee we need – one who, as President Obama described, ‘has the intellectual firepower but also a little bit of a common touch and has a practical sense of how the world works.’”

Watch the video and learn more on our Supreme Court Watch Page.

Sonia Sotomayor

President Obama has picked Sonia Sotomayor as his Supreme Court nominee. We are thrilled with this choice. Sonia Sotomayor will be a strong voice to uphold the Constitution and the law to provide equal justice and protect personal freedoms for everyone in America, regardless of wealth, status, or popularity.

President Obama has nominated a highly qualified candidate with a compelling personal story and outstanding educational credentials. She has made history as the first Latina appointed to the Supreme Court. Judge Sotomayor has more federal judicial experience than any justice nominated to the Supreme Court in the past 100 years.