Reports on the Supreme Court Short List

With Washington abuzz with talk about who might be President Obama's nominee to the Supreme Court to replace retiring Justice John Paul Stevens, Alliance for Justice has developed brief background reports on the most likely nominees. They are available on our new Supreme Court Watch web page along with a major report that sheds light on the current pro-big-business tilt of the Roberts Court and a retrospective on the career of Justice Stevens.

As this story develops in the coming weeks, additional materials will be posted. Be sure to check back frequently as we monitor this appointment, which is critical to the future of the Supreme Court, the judiciary as a whole, and the lives of ordinary Americans.

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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.

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.

America's Future Now

If you are in Washington, DC for this year’s America’s Future Now conference feel free to stop by our table in the exhibit hall to learn more about Alliance for Justice and say hello to our staff. Tomorrow at 3:40 pm our AFJ President, Nan Aron will be introducing the panel “Battle for the Courts” we hope you can join us for what is sure to be an informative discussion. Additionally, in honor of Torture Awareness Month, we hope you will join us in attending Rep. Jerrold Nadler’s (D-NY) session to discuss torture, presidential abuse and accountability.

You may remember that a few weeks ago we hosted an event regarding accountability for the author of the infamous “Torture Memos” asking the question of whether impeachment was appropriate for Judge Jay Bybee. You can watch video from that event online.

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.

President Should Add Strong Voice to Supreme Court

With Justice David Souter retiring, President Obama has an opportunity to add to the Supreme Court a strong voice for upholding the Constitution to ensure equal justice and basic freedoms for all.

This is particularly urgent after eight years during which federal judges were appointed who put their own political agenda ahead of the Constitution, applying one set of rules for those at the top and another for the rest of us.

Republicans in the Senate cannot be allowed to obstruct the best possible nomination. Most of them will oppose any nominee regardless; little would be accomplished by choosing someone who will not be a strong voice for equal justice for all.

Many Republican senators, already on the defensive because their policies appeal to a rapidly shrinking number of voters, have said publicly on many occasions that they oppose the use of filibusters to prevent majority votes on judicial nominations. Their hypocrisy should be made clear if they fail to abide by their own principle.

The choice our very popular president makes will help shape justice in America and renew our commitment to core constitutional values. He should make a nomination that will leave a legacy befitting his historic presidency.

The Retirement of Associate Justice David H. Souter

Well, it's been a busy day around here, but we wanted to give you a brief update on Justice Souter's retirement:

Associate Justice David Souter announced yesterday that he intends to retire as soon as his replacement can be sworn in. Justice Souter deserves the thanks of this nation for his commitment to public service and the rule of law. He has served the Court and the country well for nearly two decades dedicating his life to public service, the rule of law and to the Constitution.

Justice Souter’s retirement is a reminder of the legacy a president leaves with his appointments. Justice Souter remained on the bench long after the president who appointed him left office. President Obama now has the opportunity to nominate someone worthy of his own historic legacy. We have been busy here at Alliance for Justice researching, coordinating with progressive allies, and preparing for the fight ahead.