Fair and Just Courts

Obama Nominates Three to Illinois District Courts

President Obama yesterday nominated three highly qualified candidates to federal district court judgeships in Illinois. The nominations of Colin Stirling Bruce, Sara Lee Ellis and Andrea R. Wood underscore the president’s commitment to bringing qualified, diverse candidates to the federal bench. Two of the three nominees, Ellis and Wood, are African-American women. Wood brings unique professional diversity to the bench: she currently works for the enforcement division of the Securities and Exchange Commission, which helps keep financial companies accountable to voters and consumers.

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Senate Confirms Second Woman and First Ever Public Defender to Eighth Circuit

Yesterday, the Senate unanimously confirmed Iowa’s Jane Kelly to the Eighth Circuit Court of Appeals. Kelly, who currently serves as a federal public defender, becomes “only the second woman, and the first public defender, to serve in the history of the court that was established in 1891,” according to the Iowa City Gazette.

Kelly also makes history by having the quickest confirmation process of any of President Obama’s appeals court nominees so far, according to the Gazette. Kelly waited just 33 days for a confirmation vote, compared to the average 153 day wait for President Obama’s circuit court nominees (as of two weeks ago). Kelly’s quick confirmation, however, would not have been at all noteworthy at this point in George W. Bush administration, when appellate nominees waited an average of just 37 days between committee approval and Senate confirmation.  

Kelly’s speedy confirmation may have something to do with the senators supporting her. Iowa’s Chuck Grassley, who as ranking member of the Senate Judiciary Committee has been instrumental in obstructing President Obama’s judicial nominees, seemed to put aside his obstruction habits for a nominee from his own state.
 

PFAW

The Filibuster ‘False Equivalence’

Journalist Andrew Cohen, writing for the Brennan Center for Justice, explains how attempts to portray today’s Republican filibusters as routine “tit-for-tat” maneuvers are misleading:

By trying not to be partisan, at least in this area of political coverage, we journalists are in many ways becoming more partisan than we fear. James Fallows, the author and longtime correspondent at The Atlantic, has been preaching for years now about “false equivalence” in reporting about the Senate’s current gridlock. He has called out reporters and editors, producers and television hosts, headline writers and analysts, for their continuing failure to call it like it really is when it comes to these Senate votes. For example, on Wednesday, in the wake of the background check vote, which “passed” the Senate by a vote of 54-46 but effectively “failed” because of the threat of a filibuster, Fallows again explained the concept. He wrote:

Since the Democrats regained majority control of the Senate six years ago, the Republicans under Mitch McConnell have applied filibuster threats (under a variety of names) at a frequency not seen before in American history. Filibusters used to be exceptional. Now they are used as blocking tactics for nearly any significant legislation or nomination. The goal of this strategy, which maximizes minority blocking power in a way not foreseen in the Constitution, has been to make the 60-vote requirement seem routine. As part of the "making it routine" strategy, the minority keeps repeating that it takes 60 votes to "pass" a bill — and this Orwellian language-redefinition comes one step closer to fulfillment each time the press presents 60 votes as the norm for passing a law.

News consumers, in other words, are led to believe that what is happening is just “politics as usual,” tit-for-tat, part of the murky vote-counting calculus that has always been a part of the Senate’s rules. But there is now ample evidence to suggest that this tactic has fundamentally changed the way Congress works. In 2009 alone, the Brennan Center’s Diana Kasdan told me last week, “there was double the number of filibusters that occurred in the entire 20-year period from 1950-1969, when they were used repeatedly and notoriously to block civil rights legislation.”  In other words, today’s abuse of the filibuster is extraordinary. Yet Fallows gives many examples — actual headlines, probably hundreds of them over the years — in which journalists have refused or failed to properly communicate this to their audience. Without adequate context and perspective about what is happening in the Senate, the American people are hampered in how quickly they can force their elected officials to change (or, more accurately, to change their elected officials).

In fact, as we have reported here, today’s GOP has taken Senate obstruction to an extraordinary new level.

PFAW

Supreme Court Rules in Favor of Corporations in Human Rights Abuses Case

Back in September, PFAW senior fellow Jamie Raskin wrote a preview of the major cases coming before the Supreme Court this term, one of which, Kiobel v. Royal Dutch Petroleum, deals with the ability of foreign nationals to sue corporations for human rights abuses in American courts. The Supreme Court today issued a sweeping ruling siding with the multinational corporations accused of abuse. Main Justice sums up the facts of the case:

The plaintiffs accuse Royal Dutch, the Shell Transport and Trading Company and their joint Nigerian subsidy of allowing, indeed encouraging, atrocities by the Nigerian military against people who were protesting environmental damage caused by drilling in the Niger Delta in the 1990s. The companies were complicit in beatings, rapes and mass arrests by paying the soldiers, feeding them and allowing them to use oil company property as staging areas for their attacks, the plaintiffs maintain.

At issue was the application of the Alien Tort Statute, enacted in 1789, that gives United States courts jurisdiction over civil actions brought by aliens alleging torts committed in violation of United States treaties or international law. The seldom-used ATS was enacted partly in response to piracy on the high seas. The Nigerian plaintiffs, now legal residents of the United States, tried to use it in a present-day context.

As Jamie Raskin wrote in his Supreme Court preview, the Second Circuit radically twisted legal precedent in this case to rule that individuals could not sue corporations under the Alien Tort Statute:

Jurisdiction to hear the suit was clear. In 2004, the Supreme Court held, in Sosa v. Alvarez-Machain, that the Alien Tort Statute gave federal courts jurisdiction to hear claims about torts committed against aliens that violate well-established international norms like the human rights norms implicated in this case. Yet a bitterly divided Second Circuit panel in Kiobel held for the first time that the statute does not allow courts to hear suits against corporations as opposed to individuals. The Kiobel majority’s ruling on this issue was amazing since the issue was never raised, never briefed, never argued and never decided in any of the proceedings below that took place over the course of nearly a decade. (This rings a bell for close observers of the Citizens United majority, which also pulled a rabbit out of a hat to ask and answer a question never raised below.)

Today, the Roberts Court agreed. The Court unanimously ruled against the Nigerians in Kiobel, but disagreed about how far the ruling should go. Justice Roberts, writing for the conservative majority, wrote a broad ruling in favor of the corporations accused of human rights abuses. The four moderate justices concurred with the majority’s ruling on this particular case, but left the door open for similar cases to be tried in U.S. Courts. Main Justice explains:

Justice Stephen G. Breyer wrote that the defendants’ “minimal and indirect presence in the United States was not enough to give American courts jurisdiction over the case.”  But he stopped short of declaring that similar cases should never end up in American courts if the abuse at issue “adversely affects an important American national interest.” Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan agreed with him.

Nicole Flatow at ThinkProgress explains the possible implications of the majority’s ruling:

This decision not only means that Nigerians cannot sue foreign corporations for their conduct abroad. On this particular point, the four-justice Breyer concurrence agreed that this case did not pass muster. Roberts’ sweeping pronouncement against extraterritoriality may also mean that foreign nationals subject to abuse, for example, at the hands of a U.S. corporation that houses its factories in places whose laws shield it from liability, or an American citizen who commits human rights violations abroad against foreigners, also could not be subject to suit in the United States.

The scope of the opinion will not become clear until it is interpreted by courts. Extraterritoriality is a legal concept that asks not just whether conduct took place abroad, but also whether the claims “touch and concern the territory of the United States” such that a plaintiff can overcome the presumption against them. The only hint the court gives is that lawsuits against corporations will face a particularly heavy burden, noting, “Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.”

What is clear is that the presumption is exceedingly difficult to overcome, and that both individuals and corporations have a high chance of skirting liability simply by doing their dirty work elsewhere.

PFAW

Republicans Seek to Rig the DC Circuit Court

GOP bill would delete three of the vacancies on the DC Circuit so President Obama would be unable to restore balance to this extremely influential court.
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Delaware General Assembly Members Send Letter to Washington Urging Constitutional Amendment to Overturn Citizens United

Earlier this month, members of the Delaware General Assembly began gathering signatures for a letter to be sent to Senator Carper, Senator Coons, and Representative Carney urging them and their colleagues to pass a constitutional amendment to overturn Citizens United and related cases.
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Courts Without Judges, Per the GOP Plan

The NY Times explains how Republican obstructionism is the main cause of the judicial vacancy crisis, which is undermining our system of justice.
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Using the Courts to Derail Reform

Powerful financial entities are turning to conservative judges to undermine the Dodd-Frank financial reform law.
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Good-Bye, Judge Cebull

Before a confidential order and memorandum from a federal judicial disciplinary body becomes public, the notorious Judge Cebull changes plans and announces his retirement.
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What the Right Got Wrong About Marriage Equality

People For the American Way’s Right Wing Watch has been closely following the Right Wing’s reaction to this week’s marriage equality arguments at the Supreme Court – which ranges from awkward homophobic discussions to outright threats of revolution.

Last night, our director of communications, Drew Courtney, went on PoliticsNation with Al Sharpton to discuss the Right’s reaction to the marriage cases. Watch it here:
 

Visit NBCNews.com for breaking news, world news, and news about the economy

 

PFAW

Stay in Hope: Remarks by Minister Leslie Watson Malachi on Marriage Equality

Minister Leslie Watson Malachi, director of African American Religious Affairs at People For the American Way, delivered the following remarks to those supporting marriage equality in front of the Supreme Court today.

I greet you as one who is humbled to stand before you on this day that will be like none other and say celebrate, be glad in it, and keep standing for and with Hope!

Why Hope? As the Director of African American Religious Affairs of People For the American Way, Hope tells us DOMA will not stand but like Goliath, will fall.

Hope says same gender couples, in committed relationships will be recognized and receive those 1100 plus benefits now denied by the federal government. Hope defends what is right, Hope unites people and families, Hope stands with us and for us, and Hope is the American Way!

Why Hope? As an organizer and ally since 1996, Hope kept us waiting for this historic day. Hope gave us a process and a lesson to never take lightly judicial nominations, to make sure voter registration and mobilization is a core value, to rejoice in victories in 2012 from the proclamation from the highest officer holder in this country – President Obama - to 4 states making it 9 states total passing pro-Marriage Equality laws, and that our work in the states is not done.  Hope hasn’t just strengthened those who have always believed in marriage equality. It’s brought others to reconsider their opposition and join us on the side of justice for all. Hope is why we have so many other new and welcomed allies for equality.

Why Hope? As a Christian, during this Holy Week, from our sacred text “hope that is seen is not hope”, so you have had and must hold on with unwavering confidence that help has arrived, is sitting in between the walls of the highest court of this nation, and speaking into existence freedom that will no longer be denied.

And finally, why Hope? As an African American woman, on behalf of the Equal Justice Task Force of African American Ministers In Action, Hope says the enemy is a liar when they say African Americans and lesbian, gay, bisexual, and transgender (LGBT) people are two separate - even hostile – communities, for “no weapon shall be forged against us” and no wedge can be driven between those who know oppression, discrimination, denial of basic civil and human rights.  Hope connects the civil rights movement to the gay rights movement, the yesterday to today, the hopeful to the hopeless.

So Beloved, stay in Hope! Stay in Hope I say for if the Justices are about the business of justice, then they will speak against hate, division, intolerance, and barriers to “life, liberty and the pursuit of happiness” and strike down the Defense of Marriage Act.

Stay in Hope for my sacred text tells us what “man meant for harm, God intends for good”.

In this pivotal moment in our country's history, we must stand on the side of compassion and equality rather than on the side of oppression and discrimination. And that’s why we’re all out here on the steps of the Supreme Court today.

I leave you with these words, stay in Hope because it was the late Senator Ted Kennedy who said, and prayerfully he won’t mind me playing with it a little bit, “ For all those whose dreams have been our concern (to defeat all forms of discrimination), the work goes on (we are not going to stop trying until gay and lesbian Americans across the country have full legal equality), the cause endures (freedom to be, freedom to love, just freedom), the hope still lives ( I say again hope still lives), and the dream (for all persons to marry the person they love) shall never die.”

Be encouraged! Have faith. Expand love. Know peace. And may Hope, which is never silent, always be with you!

 

 

PFAW

New Hampshire Moves Forward With First Steps to Overturn Citizens United in Bipartisan Vote

In a bipartisan vote yesterday, the New Hampshire House passed a bill calling for a constitutional amendment to get big money out of our elections and overturn Citizens United.
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Obama Talks to Senators About Broken Judicial Confirmation Process

Republicans ended their year-long blockade of an unopposed circuit court nominee after unjustly torpedoing another with a filibuster.
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White House Urges Senate to ‘Return to the Prompt Consideration of Judicial Nominees’

Chris Kang, Senior Counsel to the President, notes on the White House blog that today markes the one-year anniversary of the day Third Circuit nominee Patty Shwartz was first approved by the Senate Judiciary Committee. That means that Shwartz, an experienced and respected attorney, has been waiting a full year simply for an up-or-down vote from the Senate. The ABA panel that evaluates the qualifications of judicial nominees unanimous gave her its highest possible rating. Not surprisingly for someone of her caliber, she has the strong support of Democrats and Republicans alike, including New Jersey Gov. Chris Christie.

Kang writes that Shwartz’s experience is sadly not unusual in a Senate that’s been hamstrung by an obstructionist Republican minority:

Unfortunately, the delay for Judge Shwartz is not unique. Last week, my colleague wrote about Judge Robert Bacharach, who was recommended to the White House by one of his Republican home state Senators, but waited 263 days for a floor vote before being confirmed 93-0. And on Monday – after 347 days of delay -- the Senate will consider the nomination of Richard Taranto to serve on the U.S. Court of Appeals for the Federal Circuit.

Overall, President Obama’s judicial nominees wait an average of 117 days on the Senate floor for a vote -- more than three times longer than President Bush’s judicial nominees, who waited an average of only 34 days. The Senate must promote the administration of justice by returning to the prompt consideration of judicial nominations. It should consider Judge Shwartz’s nomination without further delay, as well as the fifteen district court nominees awaiting votes. Yesterday, the Senate Judiciary Committee unanimously approved five district court nominees. There is no reason they – and the others approved before them – should not be confirmed within 34 days.

PFAW

The NRA vs. Judicial Nominees

Back in December, The New York Times’ Linda Greenhouse wrote a great article explaining how the National Rifle Association has worked in concert with Republican senators to oppose many of President Obama’s federal judicial nominees – usually without anything close to a legitimate reason. The NRA’s “symbiotic relationship with the Republican Party,” Greenhouse wrote, led the group to oppose judicial nominees like Sonia Sotomayor, who had next to no record on the Second Amendment, and the party to chip in when the NRA didn’t like a nominee.

It is that symbiotic relationship that succeeded in sinking the nominations of two highly qualified women to federal courts this week. Both were unquestionably qualified and well-respected in legal circles. The NRA and the Senate GOP went after both for completely unfounded reasons.

Caitlin Halligan was President Obama’s nominee to fill one of four vacancies on the hugely influential Court of Appeals for the D.C. Circuit. Never mind that she had broad bipartisan support and sterling credentials. She had once represented a client, the state of New York, in a lawsuit against gun manufacturers. Back when John Roberts was being considered for the Supreme Court, Senate Republicans said that judicial nominees shouldn’t be held responsible for positions they took as lawyers on behalf of clients. But no matter. Senate Republicans twice voted to filibuster her nomination – most recently on Wednesday – never even allowing her an up-or-down vote.

Then today, Nevada District Court nominee Elissa Cadish withdrew her nomination over one year after she had been selected by President Obama. Her story was similar. Filling out a questionnaire in 2008, Cadish stated that under then-current law, the constitutional right to bear arms didn’t apply to individual citizens. She was correct. Two months later in a 5-4 opinion, the Supreme Court established for the first time that the Second Amendment does contain that right. Cadish made clear that she understood, and would follow, the new Supreme Court precedent.

But no matter. The NRA targeted Cadish and Nevada Sen. Dean Heller used a little-known Senate practice to keep her from ever even getting the chance to explain her views in front of the Judiciary Committee. Under committee procedures used by Chairman Patrick Leahy as a courtesy to his colleagues, a nominee is not granted a hearing unless both of her home-state senators give permission in the form of a “blue slip.” Heller simply refused to sign the blue slip for Cadish, thus single-handedly sinking her nomination.

The flimsiness of the arguments against Cadish and Halligan, and the fact that much of the opposition took place behind the scenes (in the case of Cadish without even a public hearing), betrays the real reason the NRA and the GOP were working to keep these women off the federal bench. They just don’t want President Obama to be nominating federal judges.

 

PFAW

Obama Condemns Filibuster of His DC Circuit Court Nominee

President Obama specifically cites the obstruction of the three remaining Republican members of the "Gang of 14."
PFAW

PFAW Urges Senate to Confirm Halligan

People For the American Way today sent letters to members of the U.S. Senate urging them to vote to confirm Caitlin Halligan to sit on the Court of Appeals for the District of Columbia Circuit. The full text of the letter:

March 4, 2013
United States Senate
Washington, DC 20510

Dear Senator:

On behalf of the hundreds of thousands of members of People For the American Way, we write to express our strong support for the confirmation of Caitlin Halligan to the U.S. Court of Appeals for the  District of Columbia Circuit. With a fourth seat on this 11-member court becoming vacant, the urgency  of confirming Halligan becomes even more pressing.

Caitlin Halligan is supremely qualified with a broad level of support in the legal, women’s and law  enforcement  communities. Currently the General Counsel for the Manhattan District Attorney's Office,  she also spent six years serving as New York State's Solicitor General. She is a nationally respected  litigator who has earned the ABA's highest possible evaluation of her qualifications.

Her career shows that she recognizes that protecting individuals, their families, and their entire  communities requires not only tough prosecution, but tough prosecution done fairly. So while she shares  management responsibility for the Manhattan DA's Special Victims Bureau (which prosecutes those  involved in child abuse, rape, domestic violence, and elder abuse), she also has been instrumental in the  DA's Conviction Integrity Program, which seeks to prevent and correct wrongful convictions.

Her nomination has the support of numerous law enforcement individuals and organizations, including Robert Morgenthau (former DA of Manhattan), Raymond Flynn (New York City's Police Commissioner), the National District Attorneys Association, the New York State Sheriffs’ Association, the New York State Association of Chiefs of Police, and New York Women in Law Enforcement.

The best judges understand keenly how the law affects ordinary people. Halligan has worked to help  economically disadvantaged families throughout her career. Even before law school, she worked at Georgians for Children, a statewide public policy organization that focuses on issues related to impoverished children and families. Over the years, she has engaged in pro bono work and community service projects that focus on families with the greatest needs. For example, she represented victims of Hurricanes Katrina and Rita who were at risk of losing their housing assistance.

In its 120-year history, the DC Circuit has had a grand total of five women judges. Halligan clerked for  the first of those, trailblazer Patricia Wald, and she would be the sixth if confirmed. The National Conference of Women's Bar Associations, the Women's Bar Association of the District of Columbia, the National Center for Women and Policing, and the U.S. Women's Chamber of Commerce are just some of the women's organizations that are supporting her nomination.

Halligan has received the highest possible rating of her qualifications from a unanimous panel of the ABA’s nonpartisan Standing Committee on the Federal Judiciary. She has also received the strong support of a bipartisan group of renowned appellate advocates, including Miguel Estrada (Assistant to the Solicitor General under President George W. Bush and former nominee to this same court), Seth Waxman (Solicitor General under President Clinton), Carter Phillips (Assistant to the Solicitor General under President Reagan), and Walter Dellinger (Solicitor General under President Clinton).

A nominee with such sterling credentials and strong support from a broad range of the legal community is exactly the kind of mainstream, talented, and fair jurist we need on the federal bench.

The seat to which Halligan has been nominated has been vacant since 2005. In fact, the 11-member DC Circuit has lost three additional active judges since 2008. None of those judges has been replaced. Not surprisingly, this has had a serious impact on the caseload for the judges who are left. The Senate’s confirmation of George W. Bush nominee Thomas Griffith to the eleventh seat in 2005 resulted in there being approximately 121 pending cases per active judge. When the Senate debated Halligan’s nomination in 2011, that number had climbed to about 146 pending cases per active judge. Last month, with Judge Sentelle taking senior status, that number has now increased to about 188 cases per active judge, according to the most recent data on pending cases made available by the Administrative Office of U.S. Courts.

Caitlin Halligan has excelled throughout her career. With yet another vacancy opening up on the DC Circuit just last month, the need for someone of her caliber on the bench is greater than ever before. Her nomination deserves a vote on the Senate floor, and she should be confirmed to the DC Circuit.

Sincerely,

Marge Baker
Executive Vice President for Policy and Program
People For the American Way

Paul Gordon
Senior Legislative Counsel
People For the American Way
 

PFAW

Five Reasons the Senate Should Confirm Caitlin Halligan

Senate Majority Leader Harry Reid says he will ask the Senate to vote this week on the nomination of Caitlin Halligan, President Obama’s nominee to fill one of four vacancies on the DC Circuit Court of Appeals.
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