American Constitution Society

The Slow Pace of Diversity in the Courts

NPR reports today on President Obama’s unprecedented efforts to bring diversity to the federal bench:

The White House says almost half of the 97 candidates who have won confirmation during Obama's presidency are women; about a quarter are black. And Obama has nominated four openly gay people, more than any other president. He's also doubled the number of Asian-American judges on the bench.

Obama continued that pattern earlier this week when he nominated Adalberto Jose Jordan to serve on the U.S. Court of Appeals for the 11th Circuit and Miranda Du, an Asian American who lived in a refugee camp in Malaysia for almost a year as a child before coming to the U.S., for the district court in Nevada.

But that strategy may have a cost, says Caroline Fredrickson, who leads the American Constitution Society and has been following the judge nominees closely.

"Obama is nominating many more diverse nominees than his predecessors ... strikingly so," Fredrickson says. "But the nominees are not getting confirmed with the same kind of success."

Some of the longest waiting nominees, Louis Butler of Wisconsin, Charles Bernard Day of Maryland and Edward Dumont of Washington happen to be black or openly gay.

"For women and minorities, it's just been a bigger hill to climb before they actually get a vote," Fredrickson says. "And so for whatever the reasons, the facts speak for themselves."

Yes, the facts do speak for themselves. PFAW, in a memo released Tuesday, calculated that so far, the president’s women and minority nominees have waited on average 22 percent longer for a Senate confirmation vote than white men.

But the Senate’s slow pace confirming women and minority nominees has fed into a larger, equal opportunity obstruction agenda. As of Tuesday, there were 89 open seats on the federal judiciary, 37 of which had been designated as “judicial emergencies.” Pending on the Senate floor were 24 nominees who the Senate could easily have voted on, 21 of whom had no recorded opposition whatsoever in committee. Yet Republicans allowed a vote on only four of them. Twenty are still waiting for votes allowing them to take their posts.
 

PFAW

Religious Right Groups And Chamber of Commerce Fail To Block District Court Nominee

Cross-posted on Right Wing Watch

Religious Right and pro-corporate groups failed today to block President Obama’s nominee for U.S. District Court in Rhode Island, John McConnell, from receiving an up-or-down vote in the Senate. The Senate invoked cloture on McConnell’s nomination in a 63-33 vote, defeating the filibuster against McConnell. Filibusters against district court judges are extremely rare—only a handful of District Court nominees have ever faced cloture votes, and none have ever been blocked—and many Republicans previously vowed they would never filibuster a judicial nominee.

Today’s vote came after a long wait for McConnell: according to The Providence Journal, the delay caused by the concerted right-wing effort to block McConnell forced Rhode Island’s chief federal judge to “take the unusual step of reassigning more than two dozen civil cases to judges in New Hampshire and Massachusetts.”

Why the tough fight? McConnell faced virulent opposition from the Chamber of Commerce over his role fighting big tobacco companies and lead paint manufacturers. The Chamber and other groups that oppose corporate accountability found allies in the Religious Right groups that decided to fight McConnell as well.

The Conservative Action Project made McConnell a top target of their efforts. The group includes pro-corporate organizations like the 60 Plus Association, National Taxpayers Union, Americans for Limited Government, Citizens United, and American Tax Reform, along with social conservatives such as the Family Research Council, Traditional Values Coalition, Heritage Action, American Values, Liberty Counsel Action, and Eagle Forum. The Conservative Action Project’s Memo to the Movement [PDF] claimed McConnell was unqualified to serve in the judiciary because he was a trial lawyer with a history of challenging big business.

Eagle Forum derided him as a “pro-choice, anti-business, pro-judicial activism nominee” who “has made numerous anti-business statements.” The Family Research Council slammed McConnell for his ties to the Southern Poverty Law Center, one of the country’s most prominent civil rights organizations, and Phillip Jauregui’s Judicial Action Group said that his link to the SPLC and the American Constitution Society shows he “supports organizations who support homosexual marriage and oppose conservative politicians.”

While the Corporate Right and the Religious Right filibuster of the McConnell nomination failed, many of these organizations will continue to work together to block other qualified judicial nominees and aggravate the country’s burgeoning judicial vacancy crisis.

PFAW

White House Counsel Calls for End to Judicial Gridlock

The Obama Administration is making another call for the Senate to stop its unprecedented holdup of the president’s judicial nominations. White House Counsel Bob Bauer said today that it’s time for the Senate to end its “cold war” over judicial nominees, reports TPM:

"We will do what it take to try to break through gridlock over some of these nominations," Bauer said at an American Constitution Society panel. He said the judicial crisis creates "egregious delays for Americans seeking their day in court around the country."

Bauer said there has been a disturbing lack of urgency in the political class about the crisis in the judicial system, but said he didn't want to get into the typical finger-pointing about who is responsible for the crisis.

"The facts speak for themselves," Bauer said, noting that the confirmation rate is perilously low and that the problem has been developing for a long time.

Numbers compiled by Senate Democrats in December said that the Senate saw the slowest pace of judicial staffing in a generation, with just 39.8 percent of Obama's judges being confirmed.

But however the process got to this point, Bauer said that there is a growing recognition that "we can not in good conscious" allow it to continue.

"Republicans as well as Democrats increasingly acknowledge -- some privately, some publicly -- that we are witnessing something profoundly troubling," Bauer said.

The slow pace of judicial confirmations has begun to have a real impact on the federal courts and their ability to provide swift access to justice. 49 vacancies on the federal bench have been labeled “judicial emergencies,” resulting in long delays for citizens waiting for their day in court. In all, there are over 100 empty seats in the federal courts.
 

PFAW

Some More Good Supreme Court Reads

A couple of weeks ago, I wrote a post highlighting some really excellent articles that have come out in response to former Supreme Court Justice David Souter’s recent takedown of the highly flawed (to put it mildly) analogy of the Justice as a sort of robotic constitutional umpire. Since then, the debate as continued, and I wanted to point out a few more that make for great reading going into Elena Kagan’s confirmation hearings next week.

Donald Ayer, who was a deputy solicitor general in the Reagan Administration wrote an op-ed in the Washington Post explaining why the Supreme Court’s work can’t be done by a constitutional calculator:


Here's the rub: In nearly all the high court's cases, doubt exists not because the half or so of judges who decided the issue are stupid, don't get it or otherwise made some identifiable mistake. Rather, doubts exist because there are substantial persuasive arguments on both sides that cannot be dismissed as invalid or wrong. These cases must be resolved by deciding which collection of arguments is the more compelling; the justices make decisions by choosing to give priority to one set of contentions or another.
This is true of many constitutional cases, both because the Constitution is often unspecific and, as retired Justice David Souter recently observed, because its splendid generalities, such as equality and liberty, are sometimes in tension with one another. It is also true in the much greater number of more routine cases, such as where the words of a statute leave doubt about its coverage or effect.


Sonja West in Slate, says Kagan “needs to throw away the script”:

The absence of any dialogue on substantive law at these hearings is regrettable, but the political theater of discussing judging as mere law-to-fact application is truly alarming in that it goes to the heart of the public's understanding of what it is Supreme Court justices actually do. That's why Kagan needs to talk to the American people honestly next week about the job for which she is applying and why she is so qualified to get it.

And, in the New York Times Magazine, Noah Feldman calls for a new progressive vision of the Constitution that deals with macroeconomics just as much as civil rights:

Why does the absence of this vision constitute a crisis for liberals? The answer is that new and pressing constitutional issues and problems loom on the horizon — and they cannot be easily solved or resolved using the now-familiar frameworks of liberty and equality. These problems cluster around the current economic situation, which has revealed the extraordinary power of capital markets and business corporations in shaping the structure and actions of our government. The great economic and political challenges of our present decade — salvaging and fixing financial institutions, delivering health care, protecting the environment — have major constitutional dimensions. They require us to determine the limits of government power and the extent to which the state can impinge on collective and individual freedoms. Progressive constitutional thinkers, so skilled in arguing about social and civil rights, are out of practice in addressing such structural economic questions.

Finally, if you don't feel like reading, watch Al Franken's great speech to the American Constitution Society. "Originalism isn't a pillar of our Constitutional history," he says, "It's a talking point."


 

 

PFAW

Dawn Johnsen Heads Back to Indiana

“The one thing you don’t want people saying at your funeral is, ‘She went to her grave with her options open.’” That’s Dawn Johnsen, in a recent speech at the American Constitution Society, proudly declaring that she has no regrets for standing on her principles throughout her legal career, even those principles were used by the GOP to attack and eventually defeat her nomination to head the Justice Department’s Office of Legal Counsel.

Today, NPR’s Morning Edition produced a great segment on Johnsen (including some commentary from People For’s Marge Baker).

You can listen to the whole thing on NPR’s website.

Johnsen withdrew her nomination in April after spending well over a year in nomination limbo, attacked from the right over her history of supporting a woman’s right to choose and opposing Bush Administration torture policies. She was, to say the least, highly qualified. It’s a testament to her integrity that she has refused to back down from any of her statements or principles—even those that didn’t prove to be politically expedient.
 

PFAW

Dawn Johnsen on Caution and Principle

Last night, Dawn Johnsen spoke to the American Constitution Society, her first public appearance after a year and a half long battle over her confirmation to head the Office of Legal Counsel. Johnsen withdrew her nomination in April after an extended right-wing attack on her criticism of Bush administration torture policies and history of fighting for the right to choose.

In speaking about her nomination, she reminded us why she would have made a strong and honest defender of the law as the head of the OLC:

“As to whether I would have changed any of my positions or softened my stances or decided to just sit out a few issues, the message could not be more clear or more simple: I have no regrets,” Johnsen said.

A law professor at Indiana University, Bloomington, she said her biography “should hardly be used as an example of why we should not stand on principle or speak out in public.” Her willingness to speak out, she added, “has not hurt me professionally. Just the opposite.”

Johnsen recounted, for example, the opportunity she had three years out of law school to co-write an amicus brief to the U.S. Supreme Court in a 1989 case, Webster v. Reproductive Health Services, in which the justices upheld abortion rights. At the time, Johnsen was legal director for NARAL Pro-Choice America.

Republicans last year seized on a footnote from that brief, accusing Johnsen of equating pregnancy with slavery. But she noted Thursday that the brief was quoted in The New York Times at the time of the case and was published in full in two law reviews, and that the Supreme Court ruled 5-4 in favor of her side. “Whatever you think about that footnote, it was a damn good brief,” Johnsen said.

“Do you think for one moment that I wish I had sat that fight out, due to caution and calculation? Not a chance, not for a moment, not on your life,” she added. “One should not live one’s life deciding whether and how to write such briefs based on calculated judgments about possible future political payoffs.”

PFAW

Advice for Obama from FDR

Jeff Shesol, author of the fascinating Supreme Power: Franklin Roosevelt vs. The Supreme Court, has some advice for President Obama in a new blog post for the American Constitution Society. Shesol argues that Obama can learn a thing or two from Roosevelt’s struggles with an “activist” Supreme Court that was overturning key legislative initiatives to protect individual rights and his success in shifting the frame of the public’s debate on the Court and the Constitution.

It's a paradox: we've got a former constitutional law professor as president, but he's had far less to say than his critics (and some of his supporters) about the relevance of the Constitution to key questions of national policy. No doubt he's got plenty to say on the subject. No doubt he's unwilling to cede the argument to Republicans mouthing pieties about "the plain language of the Constitution." So what's holding the professor back?

Understandably, his focus now is the confirmation of Elena Kagan, and that goal might not be served by starting a debate with the self-styled defenders of the Constitution. But as Senator Cornyn said last year, not incorrectly, "each Supreme Court nomination is a time for national conversation and reflection on the role of the Supreme Court." And by keeping mostly mum on the matter, President Obama is missing an important opportunity to "take the country to school," as Felix Frankfurter advised President Roosevelt to do in the mid-1930s. Frankfurter urged FDR to launch a campaign of "quiet education" about the Court's proper role and the ways in which ideologically driven conservative justices were overstepping it.

As Shesol points out, for decades conservatives have dominated the debate over the meaning of the Supreme Court and the Constitution. But in recent months, their talking points have been noticeably loosing credibility. The Roberts Court’s far-reaching decision in Citizens United—in which it went out of its way to upend 100 years of settled law to give corporations the same rights as citizens to influence elections— angered Americans across the political spectrum, and soundly debunked the myth of “judicial activism” as a liberal trait. And the Republican National Committee’s recent attempt to smear Elena Kagan for questioning the perfection of the original Constitution spectacularly backfired when the flaws in their argument became clear.

Americans are clearly ready to embrace a view of the Supreme Court and the Constitution that does not fit neatly into flawed baseball-themed talking points. The debate over Kagan’s nomination provides an opportunity to have that conversation.
 

PFAW