An evangelical Christian lobbying group and a far right-wing candidate for Nevada attorney general have lodged a sweeping lawsuit against the health care reform law. Joel Hansen, the  Independent American Party candidate, and the Nevada Families Eagle Forum claim that the Affordable Care Act violates "at least half a dozen constitutional amendments, including the First, Third, Fourth, Fifth, Ninth, 10th and 13th," reports the Las Vegas Review-Journal.

Hansen, at press briefing about the lawsuit, said that unlike the other legal challenges to the health care reform law, his is not about states' rights. Instead, Hansen said, "It's about individual rights. It violates the First Amendment because a lot of people are pro-life and this law forces them to contribute to (paying for) abortions. That's a violation of religious freedom."

Hansen, whose party supports legislation "to return authority over abortion and public prayer to the states," and "to control the Federal Courts," also maintained, as the newspaper reported, that "many religious Americans do not buy insurance because they liken it to gambling, and forcing them to buy insurance would be another First Amendment violation."

In its June 2010 newsletter, the Nevada Families Eagle Forum, edited by Mr. Hansen's sister Janine, warns of turbulent economic and political times, and calls for a spiritual renewal of sorts. "The first thing to do is to make sure your hearts are right. I go to the source of God's wisdom, the Bible," she wrote.

A string of state attorneys general have joined lawsuits challenging a provision of the health care reform law that requires certain individuals to purchase health care insurance or pay a fee to offset their use of health care entities, such as visits to an emergency room. Those lawsuits primarily argue that Congress does not have the authority to enact such a law. Many constitutional law scholars and experts disagree, arguing that Congress has authority under the commerce clause and the power to tax and spend. In an interview with ACSblog, Simon Lazarus, public policy counsel of the National Senior Citizens Law Center (NSCLC) and author of an ACS Issue Brief on the constitutionality of health care reform, chided the state attorneys general for bringing the lawsuits, saying they were frivolous and politically motivated. See video of Lazarus' interview here.

 

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By Hank Greely, a professor of law and genetics at Stanford University, and director of both The Center for Law and the Biosciences and the Stanford Interdisciplinary Group on Neuroscience and Society.

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I was shocked last week when I learned that Judge Royce Lamberth had enjoined federal support for human embryonic stem cell (hESC) research. As a lawyer, I was even more shocked when I read the opinion, which seems to me, when considered solely as a legal matter, clearly wrong.

Last week's decision came on the plaintiffs' motion for a preliminary injunction. The law allows a judge to issue a preliminary injunction when the moving party establishes, in Judge Lamberth's words:

(1) that there is a substantial likelihood of success on the merits; (2) that the plaintiff would suffer irreparable injury absent an injunction; (3) that an injunction would not substantially injure other interested parties; and (4) that an injunction would further public interest.

In this case, the merits turn on the so-called Dickey-Wicker amendment. This amendment was first added to the HHS appropriations bill in 1996. Appropriations bills are good for only one year, so every year from 1996 to the present, Congress has added essentially the same language to the relevant appropriations bill. The current version, adopted as part of the fiscal year 2009 Omnibus Appropriations Act, states:

(a) None of the funds made available in this Act may be used for-- . . .
(2) research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death . . . .

For 11 years, the Clinton, Bush, and Obama administrations have agreed that this language allows funding of research using hESC lines as long as that funded research project does not itself destroy embryos. Judge Lamberth held that the language not only prohibited government funding of any hESC research, but did so clearly and unambiguously.

This prohibition encompasses all "research in which" an embryo is destroyed, not just the "piece of research" in which the embryo is destroyed. Had Congress intended to limit the Dickey-Wicker to only those discrete acts that result in the destruction of an embryo, like the derivation of ESCs, or to research on the embryo itself, Congress could have written the statute that way.

In 1996, this interpretation might have been reasonable, though, I believe, still wrong. In 2010, the decision is clearly and unambiguously wrong, for at least three reasons.

First, Judge Lamberth's decision is wrong because it does not understand the nature of government funding of scientific research, today or in 1996. The NIH does not say "Here's a pool of $100 million for hESC research; come and get it." It says "Please write us a long and complicated application for a grant to do a specific piece of research and if, against long odds, we accept your grant, we'll give you some money to do the work you said you would do." What the NIH funds are "pieces of research," as defined by grant applications. The Guidelines at issue do not allow the destruction of embryos as one of the actions to be undertaken as part of any grant they fund.

Second, this is not 1996. James Thomson of the University of Wisconsin did not announce the first successful hESC derivation until November 1998. In January 1999 HHS concluded that Dickey-Wicker forbade only funding specific research in which embryos were destroyed (or threatened), but allowed funding of research with hESC lines that had been created as part of some other work. HHS has maintained this position for 11 years, through three very different administrations. This is evidence against Judge Lamberth's conclusion that the language of the amendment is clear. If his reading of the language is unambiguously right, why did three very different administrations reject it? And if the language is, in fact, unclear, then under governing administrative law, the Chevron doctrine, the judge has to defer to the interpretation placed on the statute by the government agency charged with administering it - HHS.

Third, the version of Dickey-Wicker that Judge Lamberth was supposed to apply was passed in 2009 . . . by a Congress that had, for ten years, seen those three administrations interpret the rider to mean that HHS could fund hESC research, but not direct embryo destruction. If Congress had disagreed with that interpretation, it could have changed the wording of the following year's Dickey-Wicker amendment to make that disagreement clear. It did not. In fact, twice Congress passed new legislation to overturn President Bush's relatively restrictive policy on use of federal funding, only to see its bills vetoed. These facts make it very odd indeed to interpret the action of Congress in passing the 2009 version of this rider as clearly rejecting federal funding for any hESC research.

Judge Lamberth's conclusion that the plaintiffs have shown they are likely to win at trial seems the most important part of his holding, but, remember, to grant a preliminary injunction, he must find that the plaintiffs have shown that they would suffer irreparable injury without an injunction, that they other parties would not be substantially injured by an injunction, and that the injunction would further the public interest. His decision on those points also seems wrong.

Finally, the operative part of this decision, like any judicial decision, is the order that accompanies it. His order is both short and confusing.

ORDERED that defendants and their officers, employees, and agents are enjoined from implementing, applying, or taking any action whatsoever pursuant to the National Institutes of Health Guidelines for Human Stem Cell Research, 74 Fed. Reg. 32,170 (July 7, 2009), or otherwise funding research involving human embryonic stem cells as contemplated in the Guidelines.

And what does that mean? It surely means that the NIH cannot issue new grants for such research, but it has already issued many grants, both under the Bush Administration policy and, already, under the expanded Obama Administration policy. What happens to them? NIH has announced its preliminary interpretation of the order - all existing grants continue up until the moment of their renewal date, no pending grants will be considered - but it is not clear that the NIH interpretation is correct.

Judge Lamberth's opinion is disappointingly bad. I do not know Judge Lamberth and I do not know whether this decision is the result of bias or whether it is just an example of the occasional bad opinion one must expect from even a good judge. Either way, I hope - and expect - that the District of Columbia Circuit will quickly first stay the order and then reverse the decision.

A longer version of this discussion is available at Stanford Law School's The Center for Law and the Biosciences blog.

Supreme Court Justice Anthony M. Kennedy has joined the list of legal leaders speaking out on the slow pace of judicial confirmations to the federal bench.

During the 2010 Ninth Circuit Judicial Conference, Kennedy questioned whether the Senate confirmation process is "working the way it should be," asking lawyers and law schools to study the process to identify "neutral" principles to guide both parties through the confirmation process, according to a release issued by the United States Courts for the Ninth Circuit.

"It's important for the public to understand that the excellence of the federal judiciary is at risk," Kennedy told the Los Angeles Times. "If judicial excellence is cast upon a sea of congressional indifference, the rule of law is imperiled."

Obama's judicial confirmation rate is "the lowest since analysts began detailed tracking [of] the subject 30 years ago," according to the LA Times, "with 47% of his 85 nominations winning Senate approval so far." There are currently 102 vacancies, out of 876 seats on the federal bench.

Christopher H. Schroeder, assistant attorney general for the Office of Legal Policy, said if the current rate of replacing judges continues, nearly half of all federal judgeships will be vacant by the end of the decade.

"A determined minority is skillfully navigating the process to prevent an up-or-down vote on nominees," Schroeder told an audience during the conference. Schroeder is the co-author Keeping Faith With the Constitution, originally released by ACS and republished this summer by Oxford University Press.

Kennedy focused in particular on the Eastern District of California, which has five active judges, "and the statistics tell us we need 15," he said.

The jurisdiction, which includes slightly more than half of the state's population, currently has six judge seats, one of which has been vacant for 18 months, according to the release.

Two bills pending before Congress, one national judgeship bill, and one limited to the California district, would add four permanent judgeships and one temporary judgeship to the jurisdiction.

"Our committed, dedicated, brilliant federal judges (in the district) are struggling with this caseload ... their dedication must be recognized," Kennedy added.

Kennedy and Schroeder join other leaders who have questioned the slow pace of judicial confirmations, including fellow Supreme Court Justice Ruth Bader Ginsburg, President Barack Obama and ACS Executive Director Caroline Fredrickson.

"We're at a point of unprecedented partisanship and bitter feuding between the two parties over judicial nominees at a level that has never happened before. And the impact is that you have nominees who are languishing for months and some of them for over a year," Fredrickson told NPR in a report on Senate obstruction of judicial nominations.

To follow developments on judicial nominations and vacancies on the federal bench, visit JudicialNominations.org.

 

For the second time a federal appeals court panel rejected jury awards in favor of African-American plaintiffs who alleged discrimination against the poultry company Tyson. In a 2-1 decision, the U.S. Court of Appeals for the Eleventh Circuit found that a Tyson manager's use of the word "boy" to address a black man, John Hithon, did not amount to evidence of racial discrimination.

Hithon denied a promotion at the Gadsden, Ala., poultry plant, argued that manager Tom Hatley had discriminated against him, citing, among other things, Hatley's derogatory usage of "boy." In 2002, Hithon and other employees of the plant lodged a lawsuit alleging racial discrimination and a jury found in their favor awarding hundreds of thousands in compensatory damages and $1.5 million in punitive damages. A federal magistrate judge invalidated the jury's verdict maintaining that racial discrimination was not proved, and in 2005 a panel of the Eleventh Circuit upheld that ruling. But the U.S. Supreme Court heard an appeal of the case and found that the use of the word boy could prove racial bias. "The speaker's meaning may depend on various factors including context, inflection, tone of voice, local custom and historical usage," the high court ruled in remanding the case to the Eleventh Circuit. The remand also produced another jury trial, which again found in favor of Hithon and the other black employee, Anthony Ash.

But the Eleventh Circuit, in its recent ruling (pdf) in Ash v. Tyson Foods, Inc., refused to budge from its earlier decision, concluding that there was not new evidence to show the use of the word was discriminatory, Law.Com reported. But U.S. District Senior Judge David D. Dowd Jr., appointed to the bench by President Reagan, in a dissent said the jury verdicts should have been upheld.

In a column for Daily Report, Stephen B. Bright, president and senior counsel of the Southern Center for Human Rights, wrote that the latest decision is a troubling reminder of the need for diversity on the Eleventh Circuit.

Bright wrote:

These two white judges [referring to Eleventh Circuit Judges Edward E. Carnes and William H. Pryor, Jr., of the majority in Ash], residing in their judicial palaces as far away from the lives of ordinary people as one can get, purport to know more about what it means when a white overseer calls an African-American man ‘boy' than 24 Alabamians selected for two federal juries.

...

This march back to Jim Crow would surely be more difficult if there were more people of color on the federal bench. About a quarter of the population of three states that make up the 11th Circuit is made up of African Americans and Hispanics. Yet there have been only two black judges on the 12-member 11th Circuit in its history, and they have served one at a time. There is only one active African-American federal judge in all of Georgia today, Judge W. Louis Sands in the Middle District. The Northern District of Georgia, which includes Atlanta and has three African Americans representing it in Congress, has no African American judges in active status at this time.

 

Oklahoma voters will consider a ballot initiative in November, SQ 756, that challenges the recently enacted health care reform law. Although the Affordable Care Act will not take effect until 2014, the Oklahoma measure allows voters to decide whether the state will participate in the new law. A shared responsibility provision of the law requires individuals to purchase health care insurance or pay a fee. Several state attorneys general have launched lawsuits against that provision of the law and have been roundly criticized for doing so by constitutional law experts.

In a guest blog for the OK Policy Blog, Ryan Kiesel, a state representative in Oklahoma, maintains that the ballot measure is fundamentally flawed because the legal questions surrounding the health care reform law are settled. He writes, "While the politics of health care reform are still evolving, the legal issues raised by health care reform have long been settled, and barring a sweeping dismissal of precedent by an activist court, we already know the outcome of state-based challenges."

Kiesel notes that the arguments against the law center on challenging Congress' authority pursuant to the commerce clause, its power to tax and spend and the supposed ability of states to "opt out" of federal laws. But, those arguments have all been tested in the federal courts already, he writes. "Should the Supreme Court adopt the argument the Congress overstepped its powers, it would be a monumental reversal of precedent, jeopardizing not only the health care bill, but also other federal laws such as the Civil Rights Act of 1964 and the Americans with Disabilities Act, which were also passed under Congress' authority to regulate interstate commerce."

Okla. Voters are not alone in considering measures aimed at thwarting the federal health care law. Missouri primary voters recently supported a similar measure. Simon Lazarus, public policy counsel for National Senior Citizens Law Center (NSCLC) and author of an ACS Issue Brief on the constitutionality of the shared responsibility provision of the health care reform law, noted that such ballot measures likely will mean very little. "If federal courts decide it is unconstitutional, then laws like this one will be superfluous. It has no real legal consequences. It's symbolic," he said.

 

 

 

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Bert Brandenburg is executive director of the Justice at Stake Campaign, a nonpartisan campaign with 50 state and national partners that works to keep courts fair, impartial and free from special-interest influence.

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The last 10 years have brought a revolution in the election of state Supreme Court judges. Special-interest cash has become king. Most Americans fear that justice is for sale.

This week, three reform groups released the first comprehensive national overview of spending on high court elections in the 2000-2009 decade, and on the political powerhouses seeking to tilt the scales of justice.

The report, "The New Politics of Judicial Elections, 2000-2009: Decade of Change"- released by Justice at Stake, the Brennan Center for Justice and the National Institute on Money in State Politics - describes a decade-long attack on the very notion of impartial justice. And the campaign trail attacks are paired with a litigation crusade to destroy meaningful election regulation.

Some of the report's findings:

• Spending on state Supreme Court elections more than doubled in 2000-2009; candidates raised $206.9 million, compared with just $83.3 million in the 1990s.
• Outside groups - funded by business groups, plaintiffs' lawyers and unions - poured in at least $39 million more in TV ads not approved by court candidates, ads that often viciously attacked and distorted the candidates' records. Much of this involved secret money from unknown bankrollers.
• Twenty of the 22 states that hold at least some competitive elections for Supreme Court had their costliest election ever.

There is nothing new about states electing judges. About 85 percent of all state judges face some form of election.

What is new is the tidal wave of money. High court judges must routinely raise big money from parties who appear before them in court. Outside groups are spending millions more on ads to pressure judges and trash their reputations.

All this money has caused profound unease. Polls repeatedly have shown that three Americans in four believe campaign cash affects courtroom decisions. And Justice Sandra Day O'Connor says public trust is injured when elected judges appear beholden to a small group of self-interested bankrollers.

"This crisis of confidence in the impartiality of the judiciary is real and growing," she wrote in the report's foreword. "Left unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold."

Why did special interests discover court elections? Two words: tort wars.

In the 1990s, some state supreme courts overturned limits on civil damages, and multi-billion dollar awards in tobacco and asbestos litigation triggered a counterattack by big business.

Beginning in 2000, groups like the U.S. Chamber of Commerce and National Association of Manufacturers, aided by leaders of such corporate giants as Home Depot and AIG insurance, began pouring record amounts into high court races. Plaintiffs' lawyers and unions have spent millions of their own, creating a full-fledged arms race for control of the courts.

In 2004, the winner of an Illinois Supreme Court seat said the $9.3 million raised by him and his opponent was "obscene." That same year, coal executive Don Blankenship spent $3 million to help elect a West Virginia justice, seeking a friendlier court to overturn a $50 million jury award. The justice, Brent D. Benjamin, was ultimately disqualified in a landmark 2009 U.S. Supreme Court case, Caperton v. Massey.

Several states have enacted reforms. North Carolina, New Mexico, Wisconsin and West Virginia have enacted public financing, so that judges don't have to dial for dollars. And Michigan established a new rule making it easier to disqualify judges from cases involving campaign benefactors.

But even these reforms are under threat in federal court. Using a radically expansive interpretation of the First Amendment, while trying to waive off the Constitution's guarantee of due process, opponents of campaign laws have attacked public financing, corporate spending bans, financial disclosure laws, and limits on explicitly partisan activity by judges.

In Missouri, Tennessee and Alaska, interest groups have battled another longstanding method for insulating courts from special interests: merit selection commissions, which identify qualified judicial candidates before governors make a final appointment.

If these groups get their way, special interests could spend unlimited amounts, in total secrecy, to elect the judges of their choice, presumably to get the rulings that they want.

That might be a cozy world for those writing checks, but it's a scary world for the rest of us - businesses and individuals alike - who depend on courts for a fair, impartial resolution of our disputes. Big money, campaign politics, and secret spending have little to do with the words carved over the Supreme Court's bronze doors: Equal Justice Under Law.

 

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By Rick Hasen, William H. Hannon Distinguished Professor of Law, Loyola Law School - Los Angeles and Publisher, Election Law Blog.

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Does this week's Ninth Circuit order putting on hold any gay marriages in California pending the resolution of appeals in the case mean that the appellate court is likely to reverse Judge Walker's decision declaring California's Proposition 8 unconstitutional? Or, to the contrary, does the fact that the Ninth Circuit also ordered the Proposition 8 proponents to brief the question whether the initiative proponents have standing to appeal in the case mean that the Court is likely to dismiss the appeal without reaching the merits? I believe caution is in order, and that proponents and opponents of gay marriage should read very little into the Ninth Circuit's order as to how that court is likely to decide the Proposition 8 case. But the Ninth Circuit's decision to issue a stay could increase the chances that the Supreme Court ultimately will side with gay marriage supporters.

Let's begin with the tenuous relationship between the stay order and an ultimate resolution of this case in the Ninth Circuit. As ACSBlog readers no doubt know, on August 4, federal district judge Vaughn Walker declared unconstitutional under the equal protection and due process clauses California's Proposition 8, an initiated constitutional amendment which bars same sex-marriage. On August 12, Judge Walker denied the request by Proposition 8's proponents to stay his ruling pending appeal, though he issued a temporary stay to allow the proponents time to seek a stay from the Ninth Circuit. Judge Walker's stay denial raised the question whether initiative proponents have adequate standing to bring an appeal in the case (given that California government officials have aligned themselves with plaintiffs' position that Proposition 8 is unconstitutional and were not going to appeal).

Proposition 8 proponents then sought a stay from the Ninth Circuit; otherwise, under Judge Walker's order, gay marriage would have been legal as of 5 p.m. today. On paper, appellate courts are supposed to give considerable deference to a trial court judge's decision to grant temporary relief such as a preliminary injunction or a stay. In practice, in hot button cases the Ninth Circuit has shown little deference to district court stay decisions and the Supreme Court has shown even less deference to the Ninth Circuit.

Under the Ninth Circuit's general orders, emergency stay motions are decided by a "motions panel" of up to three judges, assigned monthly on a rotating basis. The judges who decided the Proposition 8 stay order are not the same judges who will decide the ultimate appeal. Instead, three other judges - possibly the judges who decided an earlier appeal in the case involving the use of a video feed of the trial - will be deciding the merits of the appeal.

So one reason why the Ninth Circuit's decision on the stay is not a likely reflection of what the Ninth Circuit will do on the merits of the appeal is that the decisionmakers are not the same (unless, of course, the same judges on the motions panel are chosen by chance). Even so, some have suggested that the decision to grant a stay must have reflected a belief on the part of the motions panel that the appeal had merit, because judges are supposed to take likelihood of success on appeal into account in deciding whether or not to grant a stay. Though it is possible that likelihood of success on appeal played a part in the motions panel's decision, my guess (and it is only a guess, because the motions panel offered no explanation for its stay order) is that a stronger factor was a desire to preserve the status quo pending appeal. Without a stay, there could have been a number of gay marriages performed while the case was on appeal, and in the event that Judge Walker's decision was reversed on the merits, then there would be further litigation over the status of those marriages and potentially a lot of disappointed people and difficult financial and family law issues to untangle. Preserving the status quo has always been a very strong factor in considering whether or not a stay should be granted.

Nor would I make much of the fact that the Ninth Circuit motions panel directed the proponents to address the standing question. Federal courts are courts of limited jurisdiction, and it is only prudent to have a jurisdictional issue like standing fully briefed once it was raised by Judge Walker. Indeed, in a little-noticed second order yesterday, the same motions panel also consolidated an appeal of the Proposition 8 ruling by Imperial County (a supporter of Proposition 8), raising the possibility that Imperial County could be found to have standing in the case. If the mention of standing in the first order meant the judges were dubious about standing, the second order meant the judges were thinking of a way out of the standing problem.

There's one more reason why at least some of the judges on the Ninth Circuit motions panel could have supported a stay besides concern about the status quo: It makes it more likely that the Supreme Court would ultimately find Proposition 8 unconstitutional. Had the Ninth Circuit upheld Judge Walker's denial of a stay, the issue would have fallen into the lap of Justice Kennedy (the Supreme Court Justice who handles emergency appeals from the Ninth Circuit) on an expedited schedule. Observers believe he's likely the swing vote on Proposition 8's constitutionality, and an emergency stay request could have brought the issue to him without giving him time for adequate reflection and rumination on the constitutional issues.

Now the case is on the back burner. The Ninth Circuit can be very slow in issuing opinions. There's no deadline after the scheduled December argument for the court to issue an opinion. Once an opinion issues, the losing party can ask for a larger "en banc" panel of Ninth Circuit judges to hear the case. It is even possible that the case could be heard by the entire Ninth Circuit. It is entirely possible for a few years to elapse before the case could get to the Supreme Court. By then, public opinion could shift more firmly toward gay marriage, and it is possible that such an emerging social consensus could influence Justice Kennedy toward striking down Proposition 8.

This case already has had more than its share of twists and turns. But for those who want to predict what will happen in the appellate courts, there's really very little to go on so far. Certainly we should not rely on a procedural order containing no written rationale offered by a different set of decisionmakers than the judges who will decide the merits of the appeal.

A bipartisan group of former senior Department of Justice attorneys and other federal prosecutors recently lodged an amicus brief with the Supreme Court urging it to leave intact a Louisiana jury verdict against prosecutors who withheld evidence in a case that produced a murder conviction. The unique collaboration of the DOJ and federal prosecutors maintains in its friend-of-the-court brief filed in Connick v. Thompson that prosecutors should be responsible for ensuring that constitutional rights are not subverted in the process of securing convictions. The Supreme Court will hear oral argument in Connick early in its forthcoming term, which starts on Oct. 4. 

In the Connick case, a jury awarded John Thompson $14 million, in part, because prosecutors withheld evidence to help secure his murder conviction. Thompson spent 18 years in prison and had come close to being executed before he was acquitted in a retrail. Following his acquittal, Thompson sued Harry F. Connick, who led the district attorney's office at the time Thompson was convicted in 1985. (Connick is the father Harry Connick Jr., the Grammy-award winning singer.) The New Orleans district attorney's office has fought the jury award, arguing that it should not be liable for the actions of prosecutors in the case. As The Associated Press noted, the Supreme Court has "approved only narrow instances in which local government agencies can be sued for wrongdoing of their rank-and-file employees."

Thompson's attorneys have argued that prosecutors violated his rights pursuant to federal law, 42 U.S.C. Sec. 1983, which requires prosecutors to discharge their duties in a manner that does not violate constitutional rights. In Supreme Court precedent regarding Sec. 1983, such as Brady v. Maryland, the high court held that withholding evidence is a violation of prosecutors' obligations. Thompson's legal action maintained that the New Orleans district attorney's office violated the federal law because it failed to train its prosecutors on avoiding Brady violations.

The coalition of former DOJ attorneys, in its amicus brief, states that its "interest is in ensuring that Section 1983 realizes its promise as a remedy for conduct that causes constitutional violations and that the balance of interests carefully struck by this Court's precedents is preserved. The Court's precedent with respect to section 1983 failure-to-train claims promotes respect for the rule of law by holding municipal entities to account when they demonstrate deliberate indifference to constitutional rights and cause constitutional violations. Although successful failure-to-train claims are, and should be, rare, their continued availability strengthens public respect for the criminal justice system, particularly against criticism that the system is indifferent (if not hostile) to the rights of those charged, especially those wrongly charged, with criminal acts."

The coalition includes former Assistant Attorneys General and Acting Assistant Attorneys General Bill Lann Lee and William Yeomans, both ACS participants. Counsel for the coalition of attorneys includes former Solicitor General Paul D. Clement, who served during the administration of President George W. Bush, and Stanford law school professor and ACS Board member Pamela S. Karlan. See the entire amicus brief here.

Oral argument in Connick v. Thompson is scheduled for Wednesday, Oct. 6, 2010.

 

As some 100 vacancies, in the words of President Obama, "continue to plague our judiciary," ACS encourages those concerned about the ability of the federal courts to operate efficiently to visit JudicialNominations.org, a Web-based resource for staying on top of the judicial nominations process. You can now get updates from JudicialNominations.org via Facebook, by by clicking "Like" on our new Facebook page.

JudicialNominations.org brings together for the first time an array of information, including an interactive map that allows the user to select an individual district or circuit court and identify the number of vacancies in that area, how long those vacancies have existed, whether anyone has been nominated to the seats, and how long nominees have waited for confirmation. The website also provides links to congressional statements, videos, upcoming hearings and other events, and the latest nomination news.

During an address in the Rose garden last month, Obama urged leaders of both parties in Congress to "work with us to fill the vacancies that continue to plague our judiciary. Right now, we've got nominees who've been waiting up to eight months to be confirmed as judges. Most of these folks were voted out of committee unanimously, or nearly unanimously, by both Democrats and Republicans. Both Democrats and Republicans agreed that they were qualified to serve. Nevertheless, some in the minority have used parliamentary procedures time and again to deny them a vote in the full Senate."

Justice Ruth Bader Ginsburg called for greater Senate cooperation in confirming judicial nominees during the American Bar Association's annual meeting, saying, "With ABA encouragement, may the U.S. Senate someday return to the collegial, bipartisan spirit that Justice Breyer and I had the good fortune to experience."

And ACS Executive Director Caroline Fredrickson told NPR in a report on Senate obstruction of judicial nominations: "We're at a point of unprecedented partisanship and bitter feuding between the two parties over judicial nominees at a level that has never happened before. And the impact is that you have nominees who are languishing for months and some of them for over a year."

"If the Senate continues to move at this "glacial pace," a system that is "already overburdened" will come to a "grinding halt," Fredrickson wrote in a column for The Huffington Post earlier this month.

Visit JudicialNominations.org today and check back frequently to follow developments on judicial nominations and vacancies on the federal bench.

Celebrating the historic confirmation of Elena Kagan to the Supreme Court, President Obama noted in comments at the White House today that Kagan is a trailblazing legal figure who at various occasions has garnered standing ovations from audiences of both ACS and the Federalist Society. President Obama said, "The bipartisan support she received in yesterday's vote is yet another example of the high esteem in which she is held by folks across the political spectrum. There aren't many law school deans who receive standing ovations from both the Federalist Society and the American Constitution Society."

The president also noted, "For nearly two centuries there was not a single woman on the Supreme Court. When Elena was a clerk, there was just one. But when she takes her seat on that bench for the first time in history there will be three women serving on our nation's highest court."

Video of President Obama's remarks is available here. A transcript of the remarks is here.

Reaction to Kagan's confirmation:

Sen. Dianne Feinstein (D-Calif.) told The Washington Post, "Her great strength, I believe, is that of a conciliator, a reconciler, being able to bring people together, and we've had a whole raft of 5-4 decisions."

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) said, "Her qualifications, intelligence, temperament and judgment will make her a worthy successor to Justice John Paul Stevens."

In an analysis for The Wall Street Journal, Jess Bravin traces the similarities and differences in the careers of Kagan and Chief Justice John Roberts, now the two youngest members of the court, who "could wrestle over competing visions of American law for decades to come." They followed similar paths - "one groomed by the Democratic legal establishment, the other by the Republican" - they both worked in the administration and in prestigious clerkships, and their personalities overlap, each "exuding confidence without arrogance" and attracting supporters with opposite ideologies.

Sen. Amy Klobuchar (D-Minn.), quoted in Bravin's analysis, said, "She's smart, she's experienced as a manager, a consensus builder, as someone who's been on the front line. ... She will be an intellectual counterweight to Chief Justice Roberts."

Also, in the WSJ article, Erwin Chemerinsky said he doesn't believe Kagan is going to persuade Justice Kennedy, the swing vote, "where Stevens and [retired Justice David] Souter couldn't." "Ultimately, it is still the Kennedy court."

"She brings a keen intellect, considerable talent, and a commitment to core constitutional values," Alliance for Justice President Nan Aron said in a statement praising Kagan's confirmation. "We now call on the Senate to swiftly confirm all lower court nominees, many of whom have been languishing on the floor for months. It is time for the Senate to stop placing politics ahead of equal justice."

For additional information on Kagan, and the confirmation process, see the following ACS material:

Video: Kagan at the 2008 ACS National Convention, "What's At Stake: Law and Justice Policies in a New Administration."

Video: Kagan at the 2007 ACS National Convention, "Congress and the Balance of Power."

Panel Transcript: Kagan at the 2005 ACS National Convention, "The Commander in Chief in the 21st Century."

ACSblog Guest Post: "Kagan Hearings: Did Kagan Bury the Umpire Analogy? Maybe," by Professor Howard M. Wasserman.

ACSblog Guest Post: "Kagan Hearings: Get Shorty!" by Professor Geoffrey R. Stone.

ACSblog Guest Post: "Elena Kagan: In Her Own Words," by Emily J. Martin, National Women's Law Center.

ACSblog Guest Post: "Kagan Hearings: Following Precedents," by Professor David Kairys.

ACSblog Guest Post: "Kagan Hearings: Will Kagan Disappoint Progressives?" by Professor Adam Winkler.

[image via The White House, Lawrence Jackson]