Alliance for Justice has responded to a blatant attack on the Serve America Act by issuing this action alert today. Senator Jim DeMint introduced an amendment to the Serve America Act that would prohibit individuals and organizations that participate in National Service programs from engaging in activities that are protected under the First Amendment, including lobbying and advocacy. Alliance for Justice noted that DeMint's proposed amendment would establish an unnecessary and unconstitutional choice for nonprofit organizations seeking assistance through national service programs.
Nonprofits play a vital, constitutionally protected role in providing a voice for those in need. They should not have to choose between getting much-needed volunteers and funds, and advocating for policies to solve America’s problems.
To read Alliance for Justice’s entire press release click here.
Thursday, March 26, 2009
New York Times and AFJ Agree: Cornyn's Statement a "Bizarre Accusation"
Today's New York Times editorial page called for the swift confirmation of Dawn Johnsen to head the administration's Office of Legal Counsel. The editorial deemed Johnsen "superbly qualified" and a woman who has "fought for just the sort of change the office needs." The Times also criticized Texas Senator Jon Cornyn for making the "bizarre accusation" that Johnsen has not demonstrated the "requisite seriousness for the job." Echoing a statement AFJ released last week, the editorial noted that Senator Cornyn was a "staunch defender of former Attorney General Alberto Gonzales, to whom that description actually applied." Since the Senate Judiciary Committee backed Johnsen on a party-line vote, Republicans have threatened to filibuster her nomination. Clearly, they fear her leadership will put an end to the office's approval of such troubling policies as expansive executive power and the use of torture. We can only hope that's true.
Tuesday, March 24, 2009
All eyes on the Supreme Court
AFJ's Advocacy Digest blog, which covers issues of importance to foundations and nonprofits who engage in advocacy work, published this story today.
Today, the Supreme Court will hear oral arguments in Citizens United vs. Federal Election Commission. While there will be no red carpet, “Hillary: The Movie” makes its debut in front of the nine justices as Citizens United argues that the 90-minute anti-Hillary movie, which aired when Secretary of State Hillary Clinton was then a Democratic presidential candidate, did not violate the Bipartisan Campaign Reform Act.
Citizens United argues that the movie is not a political ad but instead a documentary that viewers must seek out to watch, and therefore not subject to federal election law. At the lower court, a three judge panel concurred that the movie is indeed a political ad that spoke to candidate Clinton’s qualifications for office. Citizens United appealed to the Supreme Court. Today’s oral arguments will, among other things, pit the journalistic exceptions in federal election law against the Federal Election Commission’s role of governing political advertisements and its progeny of related issues. This will prove to be a very interesting First Amendment challenge for the Roberts court, which Alliance for Justice and the regulated community will follow closely.
Friday, March 20, 2009
History Made as Kagan Becomes Nation's First Female Solicitor General
On Thursday, March 19, Harvard Law School Dean Elena Kagan was confirmed as the nation's first female solicitor general of the United States. Kagan, confirmed on a 61-31 vote, once clerked for Supreme Court Justice Thurgood Marshall and taught with President Obama at the University of Chicago Law School during the 1990s. She is rumored to be a possible Obama pick to fill any Supreme Court vacancy that may occur during his administration. For a closer look at Kagan's record and speculation that she may one day be nominated to the Supreme Court, read Manu Raju's piece in Politico.
Thursday, March 19, 2009
Dawn Johnsen Vote Marked by Double Standard
This morning, the Senate Judiciary Committee met to consider the nomination of Dawn Johnsen to head the Office of Legal Counsel. Down party lines, she was voted out of Committee 11-7; her nomination will now head to the floor.
Although Ms. Johnsen is a well-regarded scholar and spent five years in leadership roles at the OLC under the Clinton administration -- one and a half of those years as head -- Republicans were quick to dismiss her qualifications. The low point of the hearing took place when Senator Cornyn (R-TX) suggested that Ms. Johnsen shouldn't head the OLC because she lacked the "requisite seriousness" needed for the job. AFJ President, Nan Aron observed, "Senator Cornyn rejected a highly qualified nominee, citing a reason he never would have relied on with a male candidate. Beyond the blatant double-standard, his justification doesn't pass the laugh test." It is unclear what level of scholarship and experience would, under Senator Cornyn's analysis, place her in the "serious" category. Former Assistant Attorney General Walter Dellinger, who worked with Ms. Johnsen while she was at OLC, wrote that the unofficial office rule was "Dawn Johnsen is always right" because very often her first answer was the best one. She not only understands the demands of the job, but her body of work has focused on the very separation of power issues that former Bush OLC heads failed to understand when they justified the use of torture and unchecked executive power.
Ms. Johnsen's nomination sends a signal that President Obama is committed to putting the best people forward. Her record demonstrates that she will not only keep faith with core constitutional values when advising the president on legal matters, but approach each situation with an open mind.
Her nomination will soon be considered by the full Senate.
Although Ms. Johnsen is a well-regarded scholar and spent five years in leadership roles at the OLC under the Clinton administration -- one and a half of those years as head -- Republicans were quick to dismiss her qualifications. The low point of the hearing took place when Senator Cornyn (R-TX) suggested that Ms. Johnsen shouldn't head the OLC because she lacked the "requisite seriousness" needed for the job. AFJ President, Nan Aron observed, "Senator Cornyn rejected a highly qualified nominee, citing a reason he never would have relied on with a male candidate. Beyond the blatant double-standard, his justification doesn't pass the laugh test." It is unclear what level of scholarship and experience would, under Senator Cornyn's analysis, place her in the "serious" category. Former Assistant Attorney General Walter Dellinger, who worked with Ms. Johnsen while she was at OLC, wrote that the unofficial office rule was "Dawn Johnsen is always right" because very often her first answer was the best one. She not only understands the demands of the job, but her body of work has focused on the very separation of power issues that former Bush OLC heads failed to understand when they justified the use of torture and unchecked executive power.
Ms. Johnsen's nomination sends a signal that President Obama is committed to putting the best people forward. Her record demonstrates that she will not only keep faith with core constitutional values when advising the president on legal matters, but approach each situation with an open mind.
Her nomination will soon be considered by the full Senate.
Wednesday, March 18, 2009
A St. Patrick's Day Surprise
There was more happening at the White House yesterday than green fountains. Despite most people's best guesses that we'd start to see the Obama administration's first judicial nominees come mid-April, the president named his first appeals court nominee. Judge David Hamilton, currently a district court judge for the Southern District of Indiana, has been nominated to fill the lone vacancy on the Seventh Circuit Court of Appeals.
Judge Hamilton comes with bipartisan support: both of his home state senators, Richard Lugar (R) and Evan Bayh (D), have given their stamp of approval. And, despite certain right wing activist blogs trying to make much ado about an American Bar Association rating from the early 90s, the ABA has rated Judge Hamilton "well qualified," its highest recommendation.
As Alliance for Justice President Nan Aron noted yesterday, the nomination marks a refreshing change. In addition to impeccable legal credentials, Judge Hamilton's record indicates that he brings a respect for the Constitution and a commitment to the principle of equal justice for all to the bench. For more information on Judge Hamilton, click here.
Judge Hamilton comes with bipartisan support: both of his home state senators, Richard Lugar (R) and Evan Bayh (D), have given their stamp of approval. And, despite certain right wing activist blogs trying to make much ado about an American Bar Association rating from the early 90s, the ABA has rated Judge Hamilton "well qualified," its highest recommendation.
As Alliance for Justice President Nan Aron noted yesterday, the nomination marks a refreshing change. In addition to impeccable legal credentials, Judge Hamilton's record indicates that he brings a respect for the Constitution and a commitment to the principle of equal justice for all to the bench. For more information on Judge Hamilton, click here.
Monday, March 16, 2009
Going Green AND Blue on St. Patty’s Day
By Guest bloggers, Margrete Strand Rangnes and Karin Lee with Sierra Club's Responsible Trade Program
Most people don’t know it, but back in the day, St. Patrick’s signature color actually used to be blue. This St. Patty’s Day, when you wear your green, don’t forget to think about our nation’s workers, and the wearing o’ the blue too!
The buzz these days seems all to be about the green: green jobs, green buildings, green cars (green beers, anyone?).
Amidst the difficult economic times, the greening of our economy provides us with a tremendous opportunity to rebuild our nation around green jobs that will address not only the climate crisis and unemployment, but also deeply rooted social problems of poverty and inequality.
One way to ensure that these green jobs will also be good family-supporting jobs is to allow workers a democratic chance to form unions. That’s why the Sierra Club supports the Employee Free Choice Act.
In recent years, flawed trade deals like the North American Free Trade Agreement (NAFTA) and the World Trade Organization (WTO) have enabled companies to relocate to countries with weak or non-existent protections for workers and the environment, and have led to the hemorrhage of more than 1.5 million jobs. With a global recession and U.S. unemployment at over 8%, now is not the time to weaken the focus on creating a strong middle-class in America. On the contrary, given the current economic crisis, it is more important than ever to focus on farsighted policies that will staunch this outward flow and strengthen the American workforce. Investing in the green energy economy can maintain and create millions of jobs, right here at home. The challenge is to make sure that these are good jobs, with decent wages and benefits.
The Employee Free Choice Act would level the playing field and give workers a fair and direct path to form unions without the fear of being fired, help employees secure a contract with their employer in a reasonable period of time, and toughen penalties against corporations who violate their workers’ rights.
Workers serve as our front line of defense against hazardous pollution, chemical spills and other accidents that can devastate communities. Union workers are better trained to know about important health and safety risks and have greater protections if they blow the whistle on hazards and accidents in the workplace.
However, the current labor law system makes it difficult for workers to form unions. Employees who try to form unions are routinely harassed, and often even fired. Among private sector employers whose workers try to form unions, 25% have illegally fired at least one worker for union activity.
The emerging green economy holds great promise to build the American middle-class. One way to ensure that it benefits the many rather than the few is by passing the Employee Free Choice Act.
Most people don’t know it, but back in the day, St. Patrick’s signature color actually used to be blue. This St. Patty’s Day, when you wear your green, don’t forget to think about our nation’s workers, and the wearing o’ the blue too!
The buzz these days seems all to be about the green: green jobs, green buildings, green cars (green beers, anyone?).
Amidst the difficult economic times, the greening of our economy provides us with a tremendous opportunity to rebuild our nation around green jobs that will address not only the climate crisis and unemployment, but also deeply rooted social problems of poverty and inequality.
One way to ensure that these green jobs will also be good family-supporting jobs is to allow workers a democratic chance to form unions. That’s why the Sierra Club supports the Employee Free Choice Act.
In recent years, flawed trade deals like the North American Free Trade Agreement (NAFTA) and the World Trade Organization (WTO) have enabled companies to relocate to countries with weak or non-existent protections for workers and the environment, and have led to the hemorrhage of more than 1.5 million jobs. With a global recession and U.S. unemployment at over 8%, now is not the time to weaken the focus on creating a strong middle-class in America. On the contrary, given the current economic crisis, it is more important than ever to focus on farsighted policies that will staunch this outward flow and strengthen the American workforce. Investing in the green energy economy can maintain and create millions of jobs, right here at home. The challenge is to make sure that these are good jobs, with decent wages and benefits.
The Employee Free Choice Act would level the playing field and give workers a fair and direct path to form unions without the fear of being fired, help employees secure a contract with their employer in a reasonable period of time, and toughen penalties against corporations who violate their workers’ rights.
Workers serve as our front line of defense against hazardous pollution, chemical spills and other accidents that can devastate communities. Union workers are better trained to know about important health and safety risks and have greater protections if they blow the whistle on hazards and accidents in the workplace.
However, the current labor law system makes it difficult for workers to form unions. Employees who try to form unions are routinely harassed, and often even fired. Among private sector employers whose workers try to form unions, 25% have illegally fired at least one worker for union activity.
The emerging green economy holds great promise to build the American middle-class. One way to ensure that it benefits the many rather than the few is by passing the Employee Free Choice Act.
New York Times Backs Medical Device Safety Act
In a Sunday editorial, The New York Times urged passage of the Medical Device Safety Act.
Pointing out that since the Supreme Court ruled that patients can sue drug companies in state courts when they are harmed by F.D.A.-approved medicines, “Congress ought to give patients the same right to sue makers of medical devices.”
The editorial goes on to note that “state trials have played an invaluable role in backstopping an all-too-fallible FDA giving manufacturers an incentive to exercise extreme care in production and labeling.”
Find out more about the Medical Device Safety Act and what you can do to hold corporations accountable.
Pointing out that since the Supreme Court ruled that patients can sue drug companies in state courts when they are harmed by F.D.A.-approved medicines, “Congress ought to give patients the same right to sue makers of medical devices.”
The editorial goes on to note that “state trials have played an invaluable role in backstopping an all-too-fallible FDA giving manufacturers an incentive to exercise extreme care in production and labeling.”
Find out more about the Medical Device Safety Act and what you can do to hold corporations accountable.
Thursday, March 12, 2009
Leahy Gives Blue Clue
After several weeks of wondering, the question of blue slips is resolved. For now. Maybe. According to a report from Congressional Quarterly, Senate Judiciary Committe Chair Patrick Leahy plans to keep the blue slip system in place, at least for the time being. The blue slip is a part of Senate procedure through which a judicial nominee's home state senators provide their opinion on the nomination.
Senator Leahy said that he "intend[s] to continue using the same practices in this Congress in considering the nominees of President Obama. I expect good faith on all sides. I do not expect my efforts to be fair and protect the the rights of all members to be abused."
So it isn't carte blanche (or carte bleue, as the case may be) for Senate Republicans to play politics with the nominations process and return to the tactics they were so fond of using during the Clinton years. One of their favored tactics is a thing of the past, however. Senator Leahy has announced an end to the anonymous hold. If a senator wants to obstruct a nomination, that senator must be willing to do so publicly.
If their letter of last week is any indication, the Senate Republicans seem to have little reluctance when it comes to pursuing delay and obstruction through any procedural means they can. Senator Leahy should stand by his assertion that he will not allow what is essentially a procedural courtesy to be abused by a party with a long history of pursuing a political agenda for the federal bench rather than supporting nominees who respect core constitutional values. The Senate Judiciary Chairman giveth, and he can and should taketh away at the first sign the courtesy he is extending to his colleagues is not being reciprocated.
Senator Leahy said that he "intend[s] to continue using the same practices in this Congress in considering the nominees of President Obama. I expect good faith on all sides. I do not expect my efforts to be fair and protect the the rights of all members to be abused."
So it isn't carte blanche (or carte bleue, as the case may be) for Senate Republicans to play politics with the nominations process and return to the tactics they were so fond of using during the Clinton years. One of their favored tactics is a thing of the past, however. Senator Leahy has announced an end to the anonymous hold. If a senator wants to obstruct a nomination, that senator must be willing to do so publicly.
If their letter of last week is any indication, the Senate Republicans seem to have little reluctance when it comes to pursuing delay and obstruction through any procedural means they can. Senator Leahy should stand by his assertion that he will not allow what is essentially a procedural courtesy to be abused by a party with a long history of pursuing a political agenda for the federal bench rather than supporting nominees who respect core constitutional values. The Senate Judiciary Chairman giveth, and he can and should taketh away at the first sign the courtesy he is extending to his colleagues is not being reciprocated.
Wednesday, March 11, 2009
Obama's Judicial Legacy: Chapter One
It looks like President Obama will begin leaving his mark on the federal bench—and consequently on American law and life for decades to come—sooner rather than later.
According to The New York Times, the White House is signaling that it may soon be ready to name its first batch of nominees. Currently, there are 15 vacancies on the federal courts of appeal; the Times focuses on potential nominees for the Second Circuit (one vacancy) and the Fourth Circuit (four vacancies). News from the White House Counsel’s office indicates that Baltimore-based District Court Judge Andre Davis and University of Virginia Law School Professor Elizabeth Magill may be tapped for the Fourth, and former law professor and current District Court Judge Gerard Lynch could get the nod for the Second. It is too early to comment on the names; their nominations are not official and every nomination to the powerful circuit courts requires a thoughtful review.
However, as the Times notes, the Fourth Circuit is likely to be one of the most hotly contested. The Fourth Circuit used to be the bulwark of movement conservatism, though a series of departures from some of its leading conservative ideological lights has begun to reshape the court. The Fourth Circuit is of particular importance to many because of the role it plays in reviewing cases related to national security.
It wouldn’t be surprising if the Fourth Circuit is the place where we start to see Senate Republicans attempting to make good on their threats to pursue an obstructionist strategy if the Democratic White House doesn’t send up nominees who share a Republican political philosophy. (Quite a change in tune from their earlier refrains about how important deference to the president is when it comes to nominees.) There have already been calls for President Obama to renominate some of President Bush's nominees, including Judge Glen Conrad to the Fourth. Proponents of this plan like to point to the example of Judge Roger Gregory, originally a Clinton nominee to the Fourth Circuit, who was renominated by President Bush. What they leave out is the rest of the story. The president faced enormous pressure from a member of his own party: then-Senator John Warner of Virginia. Senator Warner was so appalled by the treatment of Judge Gregory that he urged President Bush to right the wrong. Judge Gregory was subject to a campaign waged by Jesse Helms to keep African-Americans off the Fourth Circuit; Judge Gregory was the fourth nominee to his seat stymied by Helms.
The Times story does serve as another reminder, however, of the task facing the administration. Because they serve for life, rather than just a few short years, federal judges are one of a president’s most important and lasting legacies. We’ve said it before, and we’ll say it again: As the White House considers more names, President Obama should look for men and women with a commitment to core constitutional values of liberty and equal justice for all, men and women not driven by a political agenda that favors the wealthy and powerful over the rest of America (no matter how many petulant letters he receives from the Senate Republican caucus).
Stay tuned.
According to The New York Times, the White House is signaling that it may soon be ready to name its first batch of nominees. Currently, there are 15 vacancies on the federal courts of appeal; the Times focuses on potential nominees for the Second Circuit (one vacancy) and the Fourth Circuit (four vacancies). News from the White House Counsel’s office indicates that Baltimore-based District Court Judge Andre Davis and University of Virginia Law School Professor Elizabeth Magill may be tapped for the Fourth, and former law professor and current District Court Judge Gerard Lynch could get the nod for the Second. It is too early to comment on the names; their nominations are not official and every nomination to the powerful circuit courts requires a thoughtful review.
However, as the Times notes, the Fourth Circuit is likely to be one of the most hotly contested. The Fourth Circuit used to be the bulwark of movement conservatism, though a series of departures from some of its leading conservative ideological lights has begun to reshape the court. The Fourth Circuit is of particular importance to many because of the role it plays in reviewing cases related to national security.
It wouldn’t be surprising if the Fourth Circuit is the place where we start to see Senate Republicans attempting to make good on their threats to pursue an obstructionist strategy if the Democratic White House doesn’t send up nominees who share a Republican political philosophy. (Quite a change in tune from their earlier refrains about how important deference to the president is when it comes to nominees.) There have already been calls for President Obama to renominate some of President Bush's nominees, including Judge Glen Conrad to the Fourth. Proponents of this plan like to point to the example of Judge Roger Gregory, originally a Clinton nominee to the Fourth Circuit, who was renominated by President Bush. What they leave out is the rest of the story. The president faced enormous pressure from a member of his own party: then-Senator John Warner of Virginia. Senator Warner was so appalled by the treatment of Judge Gregory that he urged President Bush to right the wrong. Judge Gregory was subject to a campaign waged by Jesse Helms to keep African-Americans off the Fourth Circuit; Judge Gregory was the fourth nominee to his seat stymied by Helms.
The Times story does serve as another reminder, however, of the task facing the administration. Because they serve for life, rather than just a few short years, federal judges are one of a president’s most important and lasting legacies. We’ve said it before, and we’ll say it again: As the White House considers more names, President Obama should look for men and women with a commitment to core constitutional values of liberty and equal justice for all, men and women not driven by a political agenda that favors the wealthy and powerful over the rest of America (no matter how many petulant letters he receives from the Senate Republican caucus).
Stay tuned.
Tuesday, March 10, 2009
Employee Free Choice Act Will Strengthen Workers’ Voices to Improve Communities
Alliance for Justice has joined with hundreds of organizations to support the Employee Free Choice Act, introduced in Congress today.
“Union members have been a key voice for all Americans on issues like affordable health care, public education, green jobs, and equal opportunity,” said AFJ President Nan Aron. “Restoring the freedom to choose a union is a key to getting America back on track."
The Employee Free Choice Act was introduced after a Senate Health, Education, Labor, and Pensions Committee hearing on this critical legislation. The hearing, " Rebuilding Economic Security: Empowering Workers to Restore the Middle Class," featured workers from across the country , as well as labor and economic experts who explained the importance of unions to the middle class and the need for the freedom to form unions and successfully bargain contracts. Votes on the legislation are expected after the congressional recess in April.
After the hearing Senator Tom Harkin (D-Iowa) and Representative George Miller (D-California) spoke at a packed press conference. Sen. Harkin said that strengthening the working class and making it easier for workers to form unions is what helped us out of the Depression. He also noted that in these tumultuous economic times we need to give workers the right to choose how to form a union and the ability to negotiate contracts in good faith. Representative Miller said he is hopeful the Employee Free Choice Act will be the key to making our economy work for everyone again.
Find out more about the Employee Free Choice Act at the American Rights at Work Web Site.
“Union members have been a key voice for all Americans on issues like affordable health care, public education, green jobs, and equal opportunity,” said AFJ President Nan Aron. “Restoring the freedom to choose a union is a key to getting America back on track."
The Employee Free Choice Act was introduced after a Senate Health, Education, Labor, and Pensions Committee hearing on this critical legislation. The hearing, " Rebuilding Economic Security: Empowering Workers to Restore the Middle Class," featured workers from across the country , as well as labor and economic experts who explained the importance of unions to the middle class and the need for the freedom to form unions and successfully bargain contracts. Votes on the legislation are expected after the congressional recess in April.
After the hearing Senator Tom Harkin (D-Iowa) and Representative George Miller (D-California) spoke at a packed press conference. Sen. Harkin said that strengthening the working class and making it easier for workers to form unions is what helped us out of the Depression. He also noted that in these tumultuous economic times we need to give workers the right to choose how to form a union and the ability to negotiate contracts in good faith. Representative Miller said he is hopeful the Employee Free Choice Act will be the key to making our economy work for everyone again.
Find out more about the Employee Free Choice Act at the American Rights at Work Web Site.
Monday, March 9, 2009
New York Times Calls Bluff on Filibusters
Today’s New York Times ran an excellent editorial "Who's Filibustering Now?" on the threat by Senate Republicans to block any of President Obama’s judicial nominees that they do not approve.
Pointing out that when President Bush was the one nominating judges those same Senators said that “Filibustering the president’s nominees…would be an outrageous abuse of senatorial privilege.”
The Times also notes how successful ultraconservatives have been in packing the courts with judges who share their political agenda: “The nation is now saddled with hard-right Republican judges who are using the courts to push an agenda of hostility to civil rights and civil liberties; reflexive deference to corporations; and shutting the courthouse door to worthy legal claims. Mr. Obama has to repair the damage, which will require technically able judges who can provide a counterbalance to the ideologues who control many appeals courts.”
We agree. With more than 50 federal court vacancies, the president has an important opportunity to appoint highly qualified judges from a range of professional backgrounds, who will uphold the constitution’s core values of equal justice for all.
Pointing out that when President Bush was the one nominating judges those same Senators said that “Filibustering the president’s nominees…would be an outrageous abuse of senatorial privilege.”
The Times also notes how successful ultraconservatives have been in packing the courts with judges who share their political agenda: “The nation is now saddled with hard-right Republican judges who are using the courts to push an agenda of hostility to civil rights and civil liberties; reflexive deference to corporations; and shutting the courthouse door to worthy legal claims. Mr. Obama has to repair the damage, which will require technically able judges who can provide a counterbalance to the ideologues who control many appeals courts.”
We agree. With more than 50 federal court vacancies, the president has an important opportunity to appoint highly qualified judges from a range of professional backgrounds, who will uphold the constitution’s core values of equal justice for all.
Friday, March 6, 2009
Protection from Unsafe Drugs but Not "Medical Devices"?
From the Huffington Post
By Nan Aron
Americans won a Supreme Court victory this week that underscored the urgent need for Congress to pass the Medical Device Safety Act that was introduced in both the House and Senate yesterday.
It's a good news, bad news story - and I'll start with the good news.
On Wednesday, the Supreme Court refused to let what will soon be a subsidiary of the world's largest drug company "hit and run." A professional musician from Vermont named Diana Levine had lost her arm because Wyeth Pharmaceuticals, which Pfizer has announced it's acquiring, failed to warn doctors and patients of health damage one of their drugs had caused to at least twenty people.
The company, citing the Bush administration as its authority, argued that it couldn't be sued because the Food and Drug Administration had given permission to market the drug with the original label.
Levine courageously stood up to the drug giant, backed by a public outcry that included public forums, a petition campaign, screenings of a documentary film, opinion pieces in major newspapers, and much more.
The Court upheld Levine's rights. Only three justices voted for the corporation's hit and run theory - including Chief Justice John Roberts, whose legally required disclosure forms showed before the decision that he owned stock in Pfizer.
That's the good news - now the bad. Unless Congress acts, the Court left the door open to the hit and run theory. It said that if the Bush administration had followed better procedures when it tried to protect drug manufacturers from legal accountability, the outcome might have been different.
Worse yet, this same Court ruled a year ago that a manufacturer of a defective heart device could avoid liability. Retiree Charles Riegel needed advanced life support and an emergency coronary bypass procedure because a balloon catheter produced by Medtronic burst. But, in a case brought by Riegel's widow on his behalf, the Supreme Court denied Riegel's right to sue, basing its decisions on a law that governs medical devices rather than prescription drugs.
So the current legal situation is that if you are harmed by a drug you can hold the company accountable in court, but if it was a medical device like a defibrillator, heart pump, or artificial heart valve, hip, or knee, then you can't.
It's now up to Congress to make clear that permission by a federal agency to market a product does not prevent Americans who are harmed from holding the manufacturer accountable. Legislation like the Medical Device Safety Act - introduced by Representatives Waxman and Pallone in the House and Senators Kennedy and Leahy in the Senate -- will not only ensure basic fairness for all Americans but also maintain a strong incentive for companies to make safe products in the first place.
***
Click here to read the post on Huffington Post.
By Nan Aron
Americans won a Supreme Court victory this week that underscored the urgent need for Congress to pass the Medical Device Safety Act that was introduced in both the House and Senate yesterday.
It's a good news, bad news story - and I'll start with the good news.
On Wednesday, the Supreme Court refused to let what will soon be a subsidiary of the world's largest drug company "hit and run." A professional musician from Vermont named Diana Levine had lost her arm because Wyeth Pharmaceuticals, which Pfizer has announced it's acquiring, failed to warn doctors and patients of health damage one of their drugs had caused to at least twenty people.
The company, citing the Bush administration as its authority, argued that it couldn't be sued because the Food and Drug Administration had given permission to market the drug with the original label.
Levine courageously stood up to the drug giant, backed by a public outcry that included public forums, a petition campaign, screenings of a documentary film, opinion pieces in major newspapers, and much more.
The Court upheld Levine's rights. Only three justices voted for the corporation's hit and run theory - including Chief Justice John Roberts, whose legally required disclosure forms showed before the decision that he owned stock in Pfizer.
That's the good news - now the bad. Unless Congress acts, the Court left the door open to the hit and run theory. It said that if the Bush administration had followed better procedures when it tried to protect drug manufacturers from legal accountability, the outcome might have been different.
Worse yet, this same Court ruled a year ago that a manufacturer of a defective heart device could avoid liability. Retiree Charles Riegel needed advanced life support and an emergency coronary bypass procedure because a balloon catheter produced by Medtronic burst. But, in a case brought by Riegel's widow on his behalf, the Supreme Court denied Riegel's right to sue, basing its decisions on a law that governs medical devices rather than prescription drugs.
So the current legal situation is that if you are harmed by a drug you can hold the company accountable in court, but if it was a medical device like a defibrillator, heart pump, or artificial heart valve, hip, or knee, then you can't.
It's now up to Congress to make clear that permission by a federal agency to market a product does not prevent Americans who are harmed from holding the manufacturer accountable. Legislation like the Medical Device Safety Act - introduced by Representatives Waxman and Pallone in the House and Senators Kennedy and Leahy in the Senate -- will not only ensure basic fairness for all Americans but also maintain a strong incentive for companies to make safe products in the first place.
***
Click here to read the post on Huffington Post.
Wednesday, March 4, 2009
Supreme Court Stands Up for Consumer Protections
This morning, the Supreme Court released its much anticipated decision in Wyeth v. Levine. The case centered on the ability of consumers to sue corporations in state court for injuries caused by their products and was arguably the most important consumer rights case of the Court’s term. By a margin of 6 to 3, the Court sided with Diana Levine, stating that the Food and Drug Administration’s approval of Wyeth’s drug label did not explicitly preempt Diana’s ability to file suit.
Wyeth had put forward the argument, used successfully by Medtronic last year in Riegel v. Medtronic, that once the FDA approves a product, the federal agency’s authority supersedes state tort law, and thus, corporations are immune from liability for harm done by their products. If successful, this “hit and run” interpretation of the law would have let corporations escape accountability for the safety of their products and left millions of injured Americans without recourse.
Writing for the majority, Justice John Paul Stevens explained that “Wyeth has not persuaded us that failure-to-warn claims like Levine’s obstruct the federal regulation of drug labeling.” Justice Stevens went on to write that “Congress has repeatedly declined to preempt state law” and recent changes made by the Bush administration to FDA policy arguing “state tort suits interfere with its statutory mandate is entitled to no weight.” Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and Anthony Kennedy signed on to his opinion. Justice Clarence Thomas wrote a concurrence, agreeing with the majority’s outcome, but taking issue with their reasoning.
In a statement, Alliance for Justice President Nan Aron said “Today’s victory for Diana Levine is really a victory for all American consumers. The Supreme Court rejected the premise that drug manufacturers who fail to warn consumers of the dangers associated with their products can evade responsibility for the harm they do to Americans. The six justices who stood up for accountability sent a clear message that FDA approval does not necessarily grant a corporation a license to hit and run.”
Wyeth had put forward the argument, used successfully by Medtronic last year in Riegel v. Medtronic, that once the FDA approves a product, the federal agency’s authority supersedes state tort law, and thus, corporations are immune from liability for harm done by their products. If successful, this “hit and run” interpretation of the law would have let corporations escape accountability for the safety of their products and left millions of injured Americans without recourse.
Writing for the majority, Justice John Paul Stevens explained that “Wyeth has not persuaded us that failure-to-warn claims like Levine’s obstruct the federal regulation of drug labeling.” Justice Stevens went on to write that “Congress has repeatedly declined to preempt state law” and recent changes made by the Bush administration to FDA policy arguing “state tort suits interfere with its statutory mandate is entitled to no weight.” Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and Anthony Kennedy signed on to his opinion. Justice Clarence Thomas wrote a concurrence, agreeing with the majority’s outcome, but taking issue with their reasoning.
In a statement, Alliance for Justice President Nan Aron said “Today’s victory for Diana Levine is really a victory for all American consumers. The Supreme Court rejected the premise that drug manufacturers who fail to warn consumers of the dangers associated with their products can evade responsibility for the harm they do to Americans. The six justices who stood up for accountability sent a clear message that FDA approval does not necessarily grant a corporation a license to hit and run.”
Tuesday, March 3, 2009
Senate Republicans Threaten to Filibuster Obama’s Nominees
Despite their efforts just four years ago to eradicate the judicial filibuster altogether, Senate Republicans are now preemptively threatening to use procedural blocks to stop any judicial nominees they don’t approve. In a letter yesterday to President Obama and Senate Judiciary Chair Patrick Leahy (D-VT), the Senate’s Republican Caucus wrote “if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee.”
While this 180-degree turn is troubling, it is certainly not surprising. For years, Alliance for Justice has argued that Republicans in the Senate aren’t concerned with the quality of the judges put forward, or even the manner in which they are confirmed. They want to keep appointing judges to the federal bench who will rule based on their political agenda, rather than the Constitution and the law.
During the years that President Bush enjoyed a Republican majority, Senators like Orrin Hatch (R-UT) and Charles Grassley (R-IA), claimed that the Constitution gave the president absolute authority to appoint judges, and that the Senate’s “advice and consent” role was limited to a simple up-or-down vote. In fact, Sen. Hatch referred to Democratic opposition to the president’s nominees as “self-serving partisan obstruction” and Sen. Grassley demanded that “all judges receive a fair vote on the Senate floor.”
Now that these Senators find themselves in the minority, they’re demanding a much more active role in the judicial nomination process, threatening to use the same tools they previously denounced if they don’t get their way.
Just four years ago, Sen. Hatch said “the Senate’s task…is to advise and to query on the judiciousness and character of nominees, not to challenge, by our naked power, the people’s will in electing who shall nominate.” In the last paragraph of yesterday’s letter, however, the Senate’s Republican Caucus wrote, “because of the profound impact that life-tenured federal judges can have in our society, the Founders made their appointment a shared constitutional responsibility.” How quickly they change their tune.
President Obama should put forward highly qualified appointees drawn from a rich pool that includes not only federal and state judges but also state attorneys general, law professors, public interest legal experts, and elected officials with practical legal experience. We need federal judges who will rule based on respect for the Constitutional values of equal justice under the law, not a partisan political agenda.
While this 180-degree turn is troubling, it is certainly not surprising. For years, Alliance for Justice has argued that Republicans in the Senate aren’t concerned with the quality of the judges put forward, or even the manner in which they are confirmed. They want to keep appointing judges to the federal bench who will rule based on their political agenda, rather than the Constitution and the law.
During the years that President Bush enjoyed a Republican majority, Senators like Orrin Hatch (R-UT) and Charles Grassley (R-IA), claimed that the Constitution gave the president absolute authority to appoint judges, and that the Senate’s “advice and consent” role was limited to a simple up-or-down vote. In fact, Sen. Hatch referred to Democratic opposition to the president’s nominees as “self-serving partisan obstruction” and Sen. Grassley demanded that “all judges receive a fair vote on the Senate floor.”
Now that these Senators find themselves in the minority, they’re demanding a much more active role in the judicial nomination process, threatening to use the same tools they previously denounced if they don’t get their way.
Just four years ago, Sen. Hatch said “the Senate’s task…is to advise and to query on the judiciousness and character of nominees, not to challenge, by our naked power, the people’s will in electing who shall nominate.” In the last paragraph of yesterday’s letter, however, the Senate’s Republican Caucus wrote, “because of the profound impact that life-tenured federal judges can have in our society, the Founders made their appointment a shared constitutional responsibility.” How quickly they change their tune.
President Obama should put forward highly qualified appointees drawn from a rich pool that includes not only federal and state judges but also state attorneys general, law professors, public interest legal experts, and elected officials with practical legal experience. We need federal judges who will rule based on respect for the Constitutional values of equal justice under the law, not a partisan political agenda.
Monday, March 2, 2009
Supreme Court Hears DNA Testing Case
This morning the Supreme Court heard arguments in District Attorney’s Office v. Osborne, a case that may determine if prisoners have a constitutional right to DNA testing that could exonerate them.
As we noted earlier on Justice Watch, William Osborne was convicted of rape in Alaska, but asked the court to test fluids found in a condom at the crime scene that he claims would prove his innocence. Alaskan officials denied his request, and the case has now made it to the Supreme Court.
Alaska is one of only six states that do not have laws ensuring access to DNA testing. The state’s courts argue that they have created a framework for prisoners to request access to DNA evidence, but that Mr. Osborne did not meet the requirements. This morning, the Supreme Court justices hearing his case seemed inclined to agree.
According to the Associated Press, the justices seemed stuck on the issue of whether a prisoner must be required to pronounce his innocence -- under penalty of perjury -- before such tests would be ordered. This theoretically would weed out any test requests from guilty prisoners, but as Justice John Paul Stevens noted, even people who had confessed to crimes have later been exonerated by DNA testing.
Mr. Osborne had admitted during parole proceedings that he had committed the rape. Of course, continuing to deny one’s guilt is not always the best way to earn parole. Justice Stevens, after mentioning past examples of people who had confessed and later been exonerated asked, “How do we know this isn’t one of those cases?”
Peter Neufeld of the Innocence Project, who is representing Mr. Osborne, pointed out that prisoners pay for their own tests, stating “All they’re getting is a darn test. If it shows they committed the crime, they get nothing.” A decision in the case is expected sometime this spring.
As we noted earlier on Justice Watch, William Osborne was convicted of rape in Alaska, but asked the court to test fluids found in a condom at the crime scene that he claims would prove his innocence. Alaskan officials denied his request, and the case has now made it to the Supreme Court.
Alaska is one of only six states that do not have laws ensuring access to DNA testing. The state’s courts argue that they have created a framework for prisoners to request access to DNA evidence, but that Mr. Osborne did not meet the requirements. This morning, the Supreme Court justices hearing his case seemed inclined to agree.
According to the Associated Press, the justices seemed stuck on the issue of whether a prisoner must be required to pronounce his innocence -- under penalty of perjury -- before such tests would be ordered. This theoretically would weed out any test requests from guilty prisoners, but as Justice John Paul Stevens noted, even people who had confessed to crimes have later been exonerated by DNA testing.
Mr. Osborne had admitted during parole proceedings that he had committed the rape. Of course, continuing to deny one’s guilt is not always the best way to earn parole. Justice Stevens, after mentioning past examples of people who had confessed and later been exonerated asked, “How do we know this isn’t one of those cases?”
Peter Neufeld of the Innocence Project, who is representing Mr. Osborne, pointed out that prisoners pay for their own tests, stating “All they’re getting is a darn test. If it shows they committed the crime, they get nothing.” A decision in the case is expected sometime this spring.
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