Courting Disaster: What Romney Would Do To Our System Of Justice

As I have previously written, Romney's choice of Robert Bork as co-chair of his Justice Advisory Committee is a disturbing sign of the kind of radical jurists Romney would nominate to the federal bench.  (See Romney Gets Borked.)  Not to mention what Romney could do to the Supreme Court -- which is already the most conservative it has been since the 1930s -- if given the opportunity.  (See Supreme Court Matters.)  As the economy faulters and Obama's gaffes get picked apart, it is critical to focus on how disastrous a Romney Presidency would be for our system of justice.  -- Lovechilde

A Romney Presidency Could Mean A Hostile Takeover Of The Federal Courts

By Jessica Mason Pieklo, cross-posted from RH Realty Check

As it stands the state of the federal judiciary is one of crisis. More than 160 million Americans live in a community with a federal court vacancy. Additional funding cuts threaten to shut down courts or suspend trials in some areas which means individual seeking justice for claims must wait longer, if they have access to the courts at all. Judicial vacancies not only stress the functioning of the federal judiciary, they threaten the ideological stability as well. A significant reason the federal judiciary is chronically understaffed is because Congressional Republicans refuse to act on nominees out of partisan and ideological spite. The result is a federal bench significantly lacking in any diversity rendering judgments over an increasingly diverse population. Sounds bad, doesn't it? It is, and if Mitt Romney wins the presidency, it will only get worse.

Early in his tenure as governor of Massachusetts, Romney developed a reputation as a man with an eye toward good governance and transparency. His early judicial appointments reflected a wide array of ideologies and experiences and Romney even undertook more substantive structural reforms to combat the practice and perception of political cronyism in judicial nominations.

But it quickly became clear that in order to advance his political career Romney would have to embrace a harder-line conservatism in both ideology and approach to the courts. Chronicles of Romney's political evolution from moderate to hard-right plutocrat are not difficult to come by, but it is his approach to the courts, their independence and their function that deserves much closer scrutiny. And that scrutiny shouldn't be limited to simply the kind of judges a President Romney would appoint to the federal bench, but how his administration would help or hinder the function of the courts in its entirety.

If Romney's early judicial selections as governor of Massachusetts illustrate a belief in the necessity of an independent and ideologically diverse judicial system, his later selections show an embrace of rigid conservatism and the benefits of political payback. In Massachusetts Romney went from nominating openly gay judges to beneficiaries of Bain capital and from embracing oversight of the judicial nomination process to openly working against it.

Fast forward to Romney's current presidential run. Under any other political climate than the current one, having failed Supreme Court nominee Robert Bork as a judicial advisor would be considered a political liability at best and the end of any serious presidential wish at worst. After all, Bork's political and legal career first drew attention back in 1973 when as solicitor general and under direct order from then-President Nixon, he fired Archibald Cox as special prosecutor in the Watergate cover-up. Bork's views on civil rights, including the idea that because women make up a majority of the population gender discrimination is an impossibility, and his belief that integrating public accommodations under the 1964 Civil Rights Act was an "unsurpassed ugliness," would eventually go on to shape a belief that the judiciary must bend its will to that of the people unless expressly prohibited by the Constitution.


If that sounds a bit obtuse let's ground it in the current debate on women's reproductive rights. At least one sitting U.S. Senator is calling on conservatives to simply ignore the mandates of Roe v. Wade and establish fetal personhood via the 14th Amendment. That call to ignoring the rule of law because it is an affront to the will of the "people" is directly out of the Robert Bork playbook.
Combine Bork's ultraconservative orthodoxy when it comes to the federal courts, his shared religious conservatism with Romney and add Romney's deep ties to the private equity world and we could expect most judicial nominations would fit the mold of Samuel Alito – social conservatives with deep and loyal ties to the monied world.

Declaring that a President Romney would appoint staunch conservative judges and practitioners to the federal bench is admittedly not much of a declaration. Place those ultra-conservative justices in a system already structurally strained and stressed from a decade of political attacks and suddenly the federal courts start to look an awful lot like those businesses Romney the private equity baron would take over and kill off.

The obvious problem with that scenario is that we're talking about the federal courts and not a private company on the verge of bankruptcy and prime for a hostile take-over.

Romney may have started his political career in Massachusetts as an advocate of judicial reform, but he did not end it as one. And with the state of our federal judiciary already in crisis the last thing this country can afford is an administration that drives the law further right while dismantling the courts from within.

Judicial Activism: Right Wing Edition

Judge Janice Rogers Brown

Whatever disappointments the left may have with President Obama, it must be understood how devastating a Romney Presidency would be in terms of the Supreme Court (and lower federal courts) and the preservation of fundamental rights, liberties and democratic principles.  (See Supreme Court Matters; Romney Gets Borked.)  

Janice Rogers Brown was an extreme right wing justice on a very right wing California Supreme Court from 1997 to 2005, when she was appointed to the U.S. Court of Appeals for the D.C. Circuit by President Bush, where she currently sits.  Rogers Brown, who has been known to trumpet Ayn Rand and decry Supreme Court decisions upholding the New Deal as "the triumph of our own socialist revolution," is precisely the kind of judge likely to be nominated by the next Republican president.  Professor Adam Winkler cites a recent Brown opinion to illustrate why this should scare us into action.   -- Lovechilde

Startling Conservative Judicial Opinion Should Motivate Progressives

By Adam Winkler, cross-posted from American Constitution Society

The age of judicial activism - err, I mean "judicial engagement" - is upon us. Having realized that they don't always win with voters, leading conservatives are abandoning their traditional emphasis on judicial restraint and respect for the decisions of democratically elected officials. After years of berating liberal judges for overturning laws in the name of controversial constitutional principles, conservatives are now embracing the notion of an active, "engaged" judiciary.  Only they want one that aggressively protects those rights conservatives prefer: property rights, rights of religious expression, the liberty of contract, the right not to buy broccoli - regardless of decades of established case law.

For evidence of this trend, one need not look further than startling concurring opinion by D.C. Circuit Judge Janice Rogers Brown in Hettinga v. United States. Brown, who is often mentioned as a potential Supreme Court nominee in a Republican administration, used her opinion to audition for a leadership role in this new movement. The time has come, she wrote, to end the pernicious practice of allowing legislatures to regulate the economy. "America's cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s." The proof? The "Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to adopt whatever economic policy may reasonably be deemed to promote the public welfare."

Besides Brown’s Bizarro world premises in which things like consumer protection laws harm consumers, her ode to the Lochner era reminds us of the importance of judicial appointments. For decades, Republican presidents have used the lower federal courts as a farm team for the Supreme Court, smartly filling positions with potential stars to see how they perform. This is a smart strategy, though one Democrats haven’t followed. Instead, Democratic presidents have tended to name competent, diverse people who aren’t likely to be controversial. But in the current political climate, even these clear consensus nominees are held up in the Senate, leaving the federal courts with a critical number of vacancies and a troubling imbalance in our courts. To counter the newly “engaged” judicial conservatives like Brown, legal liberals need to be fighting for judges, particularly those judges with the intellectual fortitude to go toe-to-toe with the leading lights of conservative constitutionalism. Respect for our Constitution and settled precedent demands nothing less.

Vacant Judges And Bad Judgment

Even though vacancies in the federal judiciary are at crisis levels, Judge Cebull's resignation would be welcome.

I've recently written (again) about the vacancy crisis in the federal judiciary due to the obstructionist tactics of Senate Republicans.  So has Marge Baker of People for the American Way, who says that "Senate Republicans have decided to use judicial nominees as pawns in their political games, delaying votes on even uncontroversial nominees for months on end."

As a result, there are 84 vacancies on the federal courts -- almost double the rate of vacancies by this point in George W. Bush's first term.  Baker explains that this means "roughly one in 10 seats on the federal courts today is vacant," which "doesn't just mean greater workloads for sitting judges. It means greater delays for Americans seeking their day in court."

Still, there is one more vacancy I would like to see.  Richard F. Cebull was appointed by George W. Bush to the district court bench in Montana in 2001.  (In contrast to the fate of Obama's nominees, Cebull was nominated in May 2001, and quickly confirmed in July by a vote of  93-0-7.)

Judge Cebull admitted to forwarding a disgusting, racist email about Obama's conception which compared an inter-racial sex act  to a white woman having sex with a dog.

Free speech is one thing, but for a federal judge to endorse and forward such a disturbing email calls into serious question his ethics, his judgment and his suitability for the bench.

At Cebull's request, the Judicial Council of the U.S. 9th Circuit Court of Appeals opened a misconduct review which will likely result in a public admonishment.  But that would hardly be sufficient. 

ThinkProgress reports that the chairs of the Congressional Black, Hispanic and Asian Pacific American Caucuses each released statements condemning Cebull's  “blatantly racist” email, and CHC Chair Charlie Gonzalez (D-TX) called for Cebull to resign.

It does appear that Cebull may have violated the U.S. Code of Judicial Conduct, which provides that a judge "should personally observe high standards of conduct so that the integrity and independence of the Judiciary are preserved." It also says that a judge "should avoid impropriety and the appearance of impropriety in all activities."  With regard to politics, it says judges "should refrain from partisan political activity" and "should not publicly endorse or oppose a partisan political organization or candidate."

Mark Follman at Mother Jones spoke with Jeffrey M. Shaman, a judicial-ethics expert at DePaul University College of Law, who agrees that Cebull crossed the line.  "Offensive, racist speech such as this clearly diminishes public confidence in the integrity and impartiality of the judiciary, and therefore should be considered a violation of the Code of Judicial Conduct," according to Shaman.  "Judge Cebull ought to know better, and his circulation of such a disgusting message makes one wonder if he is competent to serve as a judge."

The National Bar Association is urgently calling for Cebull's resignation:

Judge Cebull's actions are inexcusable and should be reprimanded at the highest degree.  His actions challenge his commitment to honoring the conduct and doctrine of jurisprudence and call into question his ability to govern impartially under the law.  Furthermore, his sensitivity to issues and matters as it relates to race and his obligation to govern on the federal bench has been jeopardized.

Rep. Charlie Gonzalez is right:  “It would appropriate for Chief Judge Cebull to ponder whether his continued service as a federal judge has been irreparably compromised and that another career may be more appropriate for someone with his views and temperament.”

Maybe he can seek the Republican nomination for President.

More GOP Follies On Judicial Nominees

There are 84 vacancies on the federal courts -- almost double the rate of vacancies by this point in George W. Bush's first term.  To understand why we need look no further than the "long and obstruction filled road" of the newest judge, Adalberto Jose Jordán, who eventually was confirmed by a vote of 94-5 for a seat on the 11th Circuit Court of Appeals.

Jordán was hardly controversial.  He was rated unanimously well qualified by the American Bar Association and cleared the Judiciary Committee with unanimous support.  Nevertheless, his nomination was pending on the Senate floor since before the December recess, and the Senate opted not to schedule a vote on his nomination.  It was then that Senate Majority Leader Harry Reid filed a motion to force a vote on his nomination, and an overwhelming majority of senators voted in favor of the motion.

As Nicole Flatow at American Constitution Society explains, here's what happened next:

Sen. Rand Paul, seeking to gain leverage for an unrelated proposal to cut off aid to Egypt until detainees are released, exploited a procedural rule and refused to consent to a vote before the permitted 30 hours for “debate” had lapsed.

While the Senate waited for the 30 hours to elapse, several other pieces of legislation were held up.

“Paul wants to send a message to his colleagues about Egypt and American foreign policy -- and he's doing it by adding one wrong on top of another,” wrote Andrew Cohen of The Atlantic.

The Washington Post’s Dana Milbank said of the hold-up:

Congressional staffers I checked with couldn’t recall a similar instance of blocking a confirmation even after a filibuster had failed. This would seem to be a unique humiliation for a man hailed by the Hispanic National Bar Association because of “the positive message this nomination sends to the Latino community.

Two days later, the Senate confirmed Jordán just as overwhelmingly as they had voted to end the filibuster of his nomination, by a vote of 94-5.

Gail Collins provides a more facetious summary:

This week, the Senate confirmed Judge Adalberto Jose Jordan to a seat on the federal Court of Appeals for the 11th Circuit in Atlanta. A visitor from another country might not have appreciated the proportions of this achievement, given the fact that Jordan, who was born in Cuba and who once clerked for Sandra Day O’Connor, had no discernible opposition.

But Americans ought to have a better grasp of how the Senate works. The nomination’s progress had long been thwarted by Mike Lee, a freshman Republican from Utah, who has decided to hold up every single White House appointment to anything out of pique over ... well, it doesn’t really matter. When you’re a senator, you get to do that kind of thing.

This forced the majority leader, Harry Reid, to get 60 votes to move Judge Jordan forward, which is never all that easy. Then there was further delay thanks to Rand Paul, a freshman from Kentucky, who stopped action for as long as possible because he was disturbed about foreign aid to Egypt.

All that is forgotten now. The nomination was approved, 94 to 5, only 125 days after it was unanimously O.K.’d by the Judiciary Committee. Whiners in the White House pointed out that when George W. Bush was president, circuit court nominations got to a floor vote in an average of 28 days.

No matter. Good work, Senate! Only 17 more long-pending judicial nominations to go!

This was the eighth time Reid was forced to take the extreme measure of filing a motion for cloture to force a vote on one of President Obama's judicial nominees.  He has just done it again, to force a vote on federal prosecutor Jesse Furman, another consensus nominee who was approved by the Judiciary Committee for a seat on the Southern District of New York without opposition.

Patrick Leahy, the Senate Judiciary Committee Chairman issued the following statement:

Like the needless delay in Judge Jordan’s confirmation, the Republican filibuster of Jesse Furman, who by any traditional measure is a consensus nominee, is another example of the tactics that have all but paralyzed the Senate confirmation process and are damaging our Federal courts.  It should not take five months and require a cloture motion for the Senate to proceed to vote on this nomination.  At a time when nearly one out of every 10 judgeships is vacant and we have over 20 judicial nominations reported favorably by the Committee, 16 of which have been stalled on the Senate calendar since last year, nearly all of them superbly-qualified consensus nominees, our Federal courts and the American people cannot afford more of these partisan tactics.

 As Kurt Vonnegut used to say, "and so it goes."

Judicial Vacancies: From Bad To Worse

I've written often about the scandalous vacancy rate in the federal judiciary, which has been caused by Obama's dithering, Senate Democrats' acquiescence and, most of all, a Republican strategy that takes full advantage of the first two.  (See, e.g., Scooping Linda Greenhouse, The GOP Plan To Obstruct Judicial Nominations, Tit for Tat, Courting Disaster.)

A new report by the Brookings Institute confirms that three years into Obama's first term, judicial vacancies have actually risen.  As NPR summarized, "the report shows that Obama has been slower to nominate trial judges, the Senate slower to confirm them, and at the same time a larger number of judges are retiring."

Obama has nominated 133 district court judges and 37 court of appeal judges thus far.  At this stage of his first term, Bush had nominated 165 for district court and 49 for the appellate court.  In addition, Senate Republicans have successfully slowed the process so that district court nominees have waited an average of seven months to win confirmation, even when there has been no real opposition.  More than a quarter of the 133 nominees are still awaiting confirmation, a significantly lower confirmation rate than under prior administrations. 

The one bright spot for judicial vacancies is that the judges who are nominated and ultimately confirmed are diverse.  Nearly half are women; more than a fifth are African American; 11 percent are Hispanic; and 7 percent are Asian American.  In addition, the first openly-gay man was recently confirmed.  In sum, 38% of Obama's appointments are white males, compared to 66% under Bush.

As Republicans long ago recognized, the composition of the federal courts of appeal (aka circuit courts) is critical because, given how few cases reach the United States Supreme Court, they are often the ultimate arbiter of the application, enforcement and interpretation of federal regulations and statutes.  And when cases are taken up by the Supreme Court, how the lower federal courts have framed the issues or resolved factual disputes is critical to their resolution.  Accordingly, Republicans continue to dominate the circuits, although Obama has increased the percentage of appellate judges appointed by a Democrat from 37% to 44%.

While Republicans doggedly try to maintain their ideological advantage, Obama and his fellow Democrats have to be far more aggressive in making the federal judiciary a priority.

Senate "Lowers The Bar" For Judicial Filibusters

So much for the "Gang of 14."  Senate Republicans, including some former gangsters, continue their shameless yet effective obstruction of Obama's judicial nominations with their filibuster of Caitlin Halligan, an extremely qualified and non-ideological nominee for a seat on the U.S Court of Appeals for the D.C. Circuit.

By Nicole Flatow, cross-posted from American Constitution Society

Caitlin Halligan

The Senate voted today to block a confirmation vote on Caitlin Halligan to the U.S. Court of Appeals for the D.C. Circuit, prompting a sharp rebuke from President Obama and outrage from a host of legal leaders and commentators.

“Today’s vote dramatically lowers the bar used to justify a filibuster, which had required ‘extraordinary circumstances.’  The only extraordinary things about Ms. Halligan are her qualifications and her intellect,” said President Obama following the vote.

“Those senators who voted against cloture are ushering in an unfortunate era of unprecedented obstructionism,” said ACS President Caroline Fredrickson.
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The Senate voted 54-45 on Senate Majority Leader Harry Reid’s motion to invoke cloture, falling six votes short of the 60 needed to force an up-or-down vote on Halligan’s nomination.

In 2005, a group of senators known as the “Gang of 14” determined that all judicial nominees should receive an up-or-down vote absent “extraordinary circumstances.”

As Senator Lindsey Graham explained the agreement at the time, “ideological attacks are not an ‘extraordinary circumstance.’ To me, it would have to be a character problem, an ethics problem, some allegation about the qualifications of a person, not an ideological bent.”

But today, Graham voted against holding an up-or-down vote on Halligan’s confirmation, even though she had been unanimously rated well qualified by the American Bar Association, and had the broad support of law enforcement officials in New York State, where she served as solicitor general.

Graham and the three other Republican members of the “Gang of 14” who remain in the Senate, -- Sens. John McCain, Susan Collins and Olympia Snowe -- also voted to filibuster Goodwin Liu, another nominee whose credentials were widely praised as "sterling" and who had the support of legal leaders from a variety of ideological backgrounds.


In a recent ACS Issue Brief, “Extraordinary Circumstances: The Gang of 14 and a Proposal for Judicial Nominations Reform," law professors Richard Painter and Michael Gerhardt explain senators' betrayal of their 2005 agreement:

The Gang of 14 had hoped that their bipartisan compromise would facilitate judicial appointments and remove ideological differences as a ground of objection to a nomination as long as the nominee’s views were within the mainstream of American jurisprudence and he or she had sound character and no serious ethical lapses. 

Instead, judicial filibusters, among other means of obstruction within the Senate, have been persistently directed at judicial nominees on the basis of speculation and distortion.  These tactics have prevented the federal judiciary from operating at full strength, and have made the process of judicial selection unpredictable for everyone concerned, including the White House, the Senate, and the nominees.

Painter, who served as President George W. Bush’s chief ethics lawyer, renewed his call for immediate reform to the judicial nominations process today, writing for Legal Ethics Forum, “The Senate has once again brought discredit upon itself … not by failing to confirm a nominee, but by refusing to vote on a nominee.”

Georgetown Law Professor Peter Edelman, the newly elected ACS Board Chair, called today a “sad day for the course of justice in our country.”

 “I have known Caitlin Halligan for 20 years,” he said. “She is a brilliant, decent, totally fair-minded moderate person. Yet despite her sterling credentials and the highest possible rating from the American Bar Association, some senators opposed even holding an up-or-down vote on her nomination. Many of those same senators, just a few years ago, decried the use of the filibuster for judicial nominations absent ‘extraordinary circumstances.’ Their action today on this nominee clearly belies that argument and makes a mockery of the entire confirmation process.”

For more information about judicial nominations, visit JudicialNominations.org and read Painter and Gerhardt’s proposal here.

The Destructive Impact Of Lewis Powell's Infamous Memo On Our Politics And Culture

In a previous article for Greenpeace, cross-posted here, Charlie Cray explored the legacy of the infamous Powell Memo, the 1971 memorandum that soon-to-be Supreme Court Justice Lewis Powell prepared for the U.S. Chamber of Commerce which mapped out a strategy to aggressively fight criticism of and challenges to corporate America from the media, liberal activists and the burgeoning consumer and environmental movements.  Charlie has now added more detailed analysis in four areas that Powell suggested corporations should focus: education, the Judiciary, the Media, and politics.  As we can now clearly see, this corporate blueprint has, as Charlie explains, forever changed the influence of big business on our political and cultural landscape.


Greenpeace Analyzes The Lewis Powell Memo -- Corporate Blueprint To Dominate Democracy

By Charlie Cray, cross-posted from Greenpeace's website

Forty years ago, not only was Greenpeace formed, but a then-obscure corporate lawyer (later appointed by President Nixon to the Supreme Court) drafted a memorandum for the U.S. Chamber of Commerce that forever changed the influence of big business on our political and cultural landscape.

As part of our investigation of the history and subsequent consequences of Lewis Powell’s Memorandum for the Chamber, Greenpeace has compiled a series of references and related analysis that trace specific corporate activities to the overall strategy that Powell sketched out in his memo.

In four inter-related pages, we describe how the Chamber and other leading members of Corporate America targeted specific public areas for increased influence, if not outright takeover:

Politics – With particular focus on the U.S. Chamber of Commerce, Lewis Powell advocated that corporations take a much more aggressive and direct role in politics. Since Powell’s day corporate lobbying expenditures and donations to politicians have exploded in size and relative importance, pulling elected officials away from various public interests towards the enduring priorities of big business.



Judicial and Legal System – Powell identified the judiciary as one of the most important arenas for business activism. His suggestions led to the swift formation of dozens of corporate-funded legal foundations, many of which succeeded in using strategic litigation and distorted constitutional doctrines to overturn regulations on public health and the environment. The U.S. Chamber and its allies in particular have waged a multi-decade attack on the rights of victims of corporate crime and abuse. Perhaps the most infamous example of how corporate power has been advanced through the strategies seeded by Powell is last year’s Supreme Court decision in Citizens United v. Federal Election Commission, which opened the floodgates to unlimited corporate contributions to influence elections.

Mass Media and Communications – Lewis Powell encouraged corporations to leverage their ownership and advertising power to influence mass media.  Recent decades have seen massive consolidation of mainstream media, resulting not only in the decline of independent and investigative journalism, but a clear pro-corporate news bias.

Schools and Education – One of the most important themes of the Powell Memo was for corporate America to invest in a long-term effort to influence educational curricula and reduce their most outspoken critics’ influence on campus. Corporations have since used a variety of means to influence university research and campus culture.

Greenpeace has dealt increasingly with the growing corporate-oriented framework that was created in part by the suggestions of Lewis Powell. A broad network of corporate think tanks, trade associations and legal foundations that has rapidly expanded since the 1970s is at the heart of the climate science denial movement, funded by the likes of Koch Industries and ExxonMobil.

Numerous other examples exist of industries harnessing the power of their money and public relations resources to trample scientific integrity and environmental or public health protections. Chemical companies avoid responsibility for looming disasters and are even willing to spy on opponents in order to avoid accountability. Familiar tuna brands turn a blind eye to their role in destructive fishing practices. The nuclear industry continues to push for false solutions to climate change even as Japan continues to struggle with a nuclear disaster. Dirty U.S. coal companies threaten the health of residents in frontline communities and fuel global climate disruption. And global warming is further intensified by U.S. companies that drive deforestation operations around the world.

One wonders if corporations have already crossed a line in dominating the key institutions so crucial to a robust democracy that even Lewis Powell would have been alarmed.

For more on the Powell Memo, check out our previous blog (Corporate Blueprint to Dominate Democracy) written on the 40th anniversary of its release, and be sure to read the Powell Memo yourself.

Scooping Linda Greenhouse

The estimable Linda Greenhouse, who has been writing about the Supreme Court and other law-related matters for the New York Times for ever has a typically excellent column today, Actively Engaged, about how the right are now embracing judicial activism but have renamed it "judicial engagement."  Ms. Greenhouse admitted she had not heard of this new phrase until a couple of days ago.  Apparently, she is not reading her Fair and Unbalanced, as we covered this back in December 2010, in a piece called "Engaged Activism or Active Engagement." 

The Framers' Constitution: Exposing Conservative Myths And Reframing The Debate

Judicial activism has been described as "legislating from the bench," and reaching rulings that substitute a judge's personal views for those of the democratically elected branches of government.  Conservatives have been remarkably successful in branding as judicial activist rulings they don't like, particularly those that have upheld rights of criminal defendants and civil plaintiffs, and protected privacy and individual liberty.  Now that they can claim a large majority of the judiciary, they have embraced their own right wing version of judicial activism, while the public nevertheless continues to accept the conservative framing of the issue.

Thus, as Republicans continue to obstruct judicial nominees they deem too activist, conservative judges, as E.J. Dionne has written, are overturning "decisions made by democratically elected bodies in areas such as pay discrimination, school integration, antitrust laws and worker safety regulation."  The current Supreme Court, as the Times wrote back in 2007 uses judicial activism in service of conservative ideology.  And, as Dionne put it,"[i]f anyone doubted that the Supreme Court's current conservative majority wants to impose its view no matter what Congress or state legislatures decide -- or what earlier precedents held -- its decision in the Citizens United case should end all qualms."

The American Constitution Society, via Professors Geoffrey Stone and William Marshall, has provided the intellectual heft to begin the dismantling of the conservative constitutional narrative, which they explain is "deeply unprincipled and patently wrong," while articulating "a principled approach to constitutional interpretation that is true to the vision of the Framers and their understanding of both the Constitution and the distinctive and essential role of courts in the interpretation and enforcement of the Constitution."


In a cogent, accessible and powerful brief, The Framer's Constitution, they ably demonstrate how the Framers of the Constitution were "visionaries" who designed the Constitution to endure by defining "our most fundamental freedoms" as well as "governmental powers" in general terms, "entrusting to future generations the responsibility to draw upon their intelligence, judgment, and experience to give concrete meaning to these broad principles over time."  This understanding recognizes that while "the principles enshrined in the Constitution do not change over time . . . the application of those principles must evolve as society changes and as experience informs our understanding."

This constitutional theory presented by ACS acknowledges the overarching importance of deference to the preferences of the majority and insists that "the starting point must be a presumption of judicial restraint."  But it also emphasizes what the Framers knew -- that majority rule was imperfect:

They understood that political majorities may be tempted to enact laws that entrench their own authority; that driven by fear, self-interest or short-sightedness, majorities may sometimes too quickly cast aside fundamental freedoms and critical structural limitations; and that prejudice, hostility, and intolerance may at times lead governing majorities to give short shrift to the legitimate needs and interests of political, religious, racial, and other minorities.

To address these concerns, the Framers clearly intended the courts to "play a central role."  As James Madison maintained when he introduced the Bill of Rights, “independent tribunals of justice will consider themselves . . . the guardians of those rights [and] will be naturally led to resist every encroachment” upon them.

Accordingly, "the Supreme Court has "properly departed from the presumption of judicial restraint when governing majorities disadvantage historically vulnerable groups (such as African Americans, ethnic minorities, political dissidents, religious dissenters, women, and persons accused of crime); when they use their authority to stifle critics, entrench their own political power, or undermine the constitutional structure of checks and balances; and when majorities act in moments of high crisis."

This has led to a series of landmark decisions including ending racial segregation, recognizing "one person, one vote," forbidding government suppression of political dissenters, providing for the right to counsel for criminal defendants, and limiting governmental interference with women's reproductive rights. 

Despite the well-grounded, principled basis for these decisions, conservatives have successfully attacked "liberal jurisprudence" as result oriented, while maintaining that they strictly adhere to the true meaning of the Constitution.  Relying on the theory of "originalism" concocted by Robert Bork, Edwin Meese and Antonin Scalia, this approach "presumes that courts should exercise juridical restraint unless the 'original meaning' of the text clearly mandates an activist approach."

Stone and Marshall expose the fundamental flaws of originalism.  As they explain, the Founders had no "precise and agreed-upon meaning" of the "broad foundational provisions" they enacted.  And since it impossible to discern what they as a whole thought about "concrete constitutional issues," judges who purportedly engage in originalist analysis project "their own personal and political preferences," resulting in "unprincipled and often patently disingenuous jurisprudence."  Moreover, for originalism to have any legitimacy one would have to believe that the Framers were narrow-minded, short-sighted men rather than visionaries "steeped in a common-law tradition," and that they "intended the meaning and effect of their handiwork to be limited to the specific understandings of their time."  This is simply an erroneous view of history.

Despite the fact that the conservative doctrine of originalism has been largely discredited, a more aggressive conception of conservative constitutionalism has emerged that "insists that even such traditional legislative measures as civil rights laws and social welfare programs are unconstitutional."

Justices who readily dismiss constitutional claims by women, political dissenters, and racial, ethnic, and religious minorities, but at the same time aggressively strike down affirmative action programs, restrictions on corporate political expenditures, gun control laws, regulations of commercial advertising, federal civil rights laws prohibiting age discrimination and domestic violence, and the laws of the state of Florida in the 2000 presidential election, have hijacked the power of judicial review.

This pattern of decisions makes clear that the conservative justices of the Supreme Court are not "in any way faithful to judicial restraint, originalism, or the analogy to 'calling balls and strikes,' but in fact are opportunistically and often hypocritically activist when that approach suits their ends." 

This hypocrisy needs to gain far wider reach.

The American Justice Society's Framers' Constitution provides us with a principled, liberal understanding of constitutional interpretation that needs to reach not only the legal community but the American public more generally, so that we can begin reframing the national debate -- a debate we are losing badly to an increasingly radical and destructive right wing.

One Down, Six To Go

Goodwin Liu at his confirmation hearing

The California Supreme Court has affirmed 43 death penalty appeals in a row in 2010-2011.  In 2009, they affirmed 24 out of 25.  When I have the pleasure of appearing before them in a capital case next week, the six justices appointed by Republican governors will be joined by Goodwin Liu, who was confirmed today by the California Commission on Judicial Appointments.

Here's the piece I wrote in July when Liu was nominated by Gov. Jerry Brown..

Federal Court Loss Is California's Gain

The last time Jerry Brown was Governor he nominated Rose Bird, Joseph Grodin and Cruz Reynoso to the California Supreme Court. These three smart, principled, liberal-minded justices were recalled by the voters in November 1986, in a nasty campaign exploiting their votes reversing death sentences, funded by business interests who disagreed with their pro-labor, pro-consumer decisions.  The Court has never been the same.  A liberal court became a conservative one overnight.

A string of conservative Governors appointed a string of conservative justices. There is not one justice on the current Court appointed by a Democrat. (Carlos Moreno, appointed by Democrat Gray Davis recently stepped down, leaving a vacancy on the bench.)  At least with regard to criminal justice, the Court's near unanimity favoring the prosecution over the rights of criminal defendants in virtually every case, particularly in death penalty cases, has cemented their reputation as the most reactionary state court in the country.

Jerry Brown has just nominated Goodwin Liu to replace Moreno and thus, begin the process of providing some badly needed balance to the Court.  Liu was nominated by President Obama to sit on the Ninth Circuit Court of Appeal, but he was successfully filibustered by Senate Republicans.  I've previously written about what a wonderful addition Liu would have been to the federal bench and how infuriating it was that he couldn't get past the Senate. (See Tit for Tat; Courting Failure.) 

By all accounts Goodwin Liu has a brilliant legal mind.  He is a law professor at Berkeley, a Yale Law School graduate and a Rhodes Scholar.  The American Bar Association gave Liu its highest possible rating.  He also has been endorsed by liberals and conservative legal alike.

Liu will be the one bright spot on a very dismal Court.  Hopefully he can disrupt the echo chamber effect caused by having a Court that has consisted solely of like-minded conservatives.  And hopefully Jerry Brown will get the opportunity for more judicial appointments.

Justice Ginsburg: In Current Political Climate, I Might Never Have Been Confirmed to High Court

By Nicole Flatow, cross-posted from American Constitution Society

Ruth Bader Ginsburg at the ACLU

If her judicial nomination had been considered by today’s Senate, U.S. Supreme Court Justice Ruth Bader Ginsburg says she might never have been confirmed, The Associated Press reports.

"Today, my ACLU connection would probably disqualify me," said Ginsburg, who served as general counsel for the American Civil Liberties Union and helped launch the organization’s Women’s Rights Project.

Ginsburg was confirmed to the Supreme Court in 1993 by a vote of 96-3. She had also been confirmed in 1980 to sit on the U.S. Court of Appeals for the District of Columbia.

Ginsburg also spoke out about Senate obstruction of judicial nominations last August, calling for greater Senate cooperation in confirming judicial nominees to our lower federal courts.

“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," she said during the American Bar Association’s annual meeting.

At ThinkProgress, the Center for American Progress’s Ian Millhiser notes, “It is possible that modern doctrines preventing gender discrimination would simply not exist if Ruth Bader Ginsburg hadn’t done the work she did for the ACLU. And yet, in today’s era of rampant right-wing filibusters, that alone would disqualify her for a seat on the federal bench.”

To learn more about judicial nominations and the vacancy crisis on our federal courts, visit JudicialNominations.org.

Stark Picture Of Judicial Vacancy Crisis

By Nicole Flatow, cross-posted from American Constitution Society

Although many prominent legal leaders, editorial boards and commentators have long lamented the high number of judicial vacancies plaguing our courts, it is not easy for those removed from the process to understand how judicial nominations work, and what impact these empty seats  have on our justice system.

The White House has put together a new infographic that paints a powerful picture of the nature of Senate obstruction of judicial nominees, and highlights Obama’s efforts to diversify our federal courts.


Here are a few key facts included in the infographic:

• Obama’s nominees are highly qualified: All 155 of President Obama’s nominees have been rated qualified or well-qualified by the American Bar Association, yet only 97 of the 155 have been confirmed.


• Obama’s judicial nominees have waited more than five times longer for a Senate confirmation vote than Bush’s nominees: President George W. Bush’s district court nominees waited an average of 20 days for a Senate confirmation vote following their approval by the Senate Judiciary Committee, which vets judicial nominees. President Obama’s district court nominees have waited an average of 103 days, and his circuit court nominees have waited an average of 151 days. Some of President Obama’s nominees have waited as long as 21 months for the Senate to schedule an up-or-down vote.


• While nominees are held up, justice is delayed: In 16 percent of civil cases before the federal courts in 2010, individuals had to wait more than three years for a resolution. In 2006, only six percent of cases took that long. (And in the districts containing some of the 37 vacancies deemed judicial emergencies, the waits can be much longer.)


• Holding off trials costs money: In 2010, longer waits for detained inmates before their trials cost the government $1.4 billion.


• A consistently high vacancy rate will erode the “quality of justice,” Supreme Court Chief Justice John G. Roberts warned in his 2010 year-end report.


• The vacancy rate is rising rather than falling: President Obama started his presidency with 55 federal court vacancies. There are now 91 vacant seats. At this point in President George W. Bush’s presidency, there were only 52 vacancies.

The good news for President Obama is that he has made strides toward “creating a judicial pool that reflects the nation it serves,” achieving confirmation of the first Latina on the Supreme Court, openly gay man on a federal district court, and women nominees of Chinese, Korean and Vietnamese descent.

The bad news is that there are many more diverse candidates whose nominations are being held up by the Senate.

As a post on the White House blog accompanying the infographic explains, the current level of Senate obstruction of judicial nominees is unprecedented:

[E]arlier this month, the Senate left for its August recess without considering 20 eminently qualified candidates, 16 of whom had passed through the bipartisan Senate Judiciary Committee completely unopposed, a development the Washington Post called “not only frustrating but also destructive” in an editorial published yesterday.
The victims of these delays, of course, are the American citizens who are being denied the fair and timely judicial proceedings they deserve because of the chronic shortage of federal judges on the bench. Stephen Zack, president of the American Bar Association, told Senate leaders in a recent letter that the abundance of vacant federal judgeships “create strains that will inevitably reduce the quality of our justice system and erode public confidence in the ability of the courts to vindicate constitutional rights or render fair and timely decisions.”

View the White House infographic and blog post here. For more information, you can view an interactive map and more statistics and news about the judicial vacancy crisis at JudicialNominations.org.

The GOP Plan To Obstruct Judicial Nominations

Most of the time, we’re focused on elections as determinative of important political outcomes. But political majorities are fleeting, and judges are lifetime appointments. The American system has a built-in status quo bias that makes big changes difficult to achieve. However, if Republican obstruction and administration indifference continue, the conservative domination of the federal bench could dramatically alter the country for years to come.  -- Adam Serwer

Remember when Republicans were adamant about ensuring that judicial nominees received an "up or down" vote?  In those days the Democrats were using the filibuster effectively to thwart some of George W. Bush's wackiest right wing judicial appointments.

Back in 2005, as People for the American Way pointed out, Republicans argued that use of the filibuster in such circumstances was not just wrong, it was unconstitutional.  They threatened to employ the so-called "nuclear option," which would have changed the Senate rules to preclude filibusters for judicial nominees.  Of course, the Democrats blinked.

Seven Democrats joined seven Republicans to form the "Gang of Fourteen," and signed an agreement in which the Republicans in the gang would not vote for the nuclear option and the Democrats would not filibuster except in "extraordinary circumstances."  In practical terms this meant that Bush was able appoint the conservatives he wanted to the bench and the Democratic minority, without the seven members of the gang, could not stop him.  As a result, many right wing conservatives, very young right wing conservatives, who could have been stopped by filibuster became judges, including, most notably and tragically, Supreme Court Justice Samuel Alito.


And now that the Democrats have the Presidency and the Senate?  Regular readers of this blog are familiar with my rants about Republican obstruction and Democratic apathy, which have resulted in an alarming number of federal judicial vacancies.  (See, e.g., Tit for Tat; Courting Failure; Lame and Lamer; Vacant and Lame.)  While early this year a bipartisan agreement was allegedly reached to speed up the process, Senate Republicans are continuing to block votes on non-controversial, qualified nominees.

Approximately one in nine federal judgeships are now vacant.  As ThinkProgress reports, the Senate recessed having "confirmed only half of the 38 judicial nominees awaiting a vote on the Senate floor," despite the fact that an "the overwhelming majority of the blocked nominees cleared the Senate Judiciary Committee without a single negative vote."  This is "culmination of a concerted GOP strategy to delay as many of President Obama’s judges as much as possible, and it leaves Obama with fewer judges confirmed than any recent president."

This Republican effort goes back to the Reagan Administration, when conservatives began to understand the importance of the judicial nomination process in transforming the federal judiciary for their political purposes.  By successfully pushing young, extremely conservative nominees, Reagan, followed by the two Presidents Bush have been able to completely reshape not just the Supreme Court, but the lower federal courts throughout the country.  When Clinton was president, the courts were simply not a priority.  Rather than extend his precious, if mythical, political capital, he sought to avoid bruising confirmation battles by appointing mostly moderates and not putting up a fight when Republicans challenged more liberal nominees.  Obama, like Clinton, has been far less aggressive than his Republican predecessors in pushing for judicial appointments.

And so here we are.  Adam Serwer writes that not only does Obama have "the lowest judicial confirmation rate of any president in the last forty years" but that "of the judges Obama has confirmed, few of them are young, which means that they’ll need to be replaced sooner rather than later."  He cites Emily Bazelon, who wrote that “Republicans have appointed 41 federal appellate judges under age 45 to the Democrats’ 10. Bush placed 13 judges in this group. Obama, so far, has zero.”

This has real life consequences.  As Serwer says, "if Bush v. Gore didn’t convinced liberals of the importance of the judiciary, the legal precariousness of the Affordable Care Act should get liberals to wake up about its importance."

Like so many other issues it remains incomprehensible why Obama and Senate Democrats aren't more aggressive in pushing this process forward.

Visit JudicialNominations.org to learn more about the judicial vacancy crisis, follow developments and take action.

Partisan Obstruction On Federal Judges Continues

I have repeatedly noted how Republican obstruction and Democratic apathy have resulted in an alarming number of judicial vacancies throughout the federal courts.  (See, e.g., Tit for Tat; Courting Failure; Lame and Lamer; Vacant and Lame.)  While early this year a bipartisan agreement was allegedly reached to speed up the process, Senate Republicans are continuing to block votes on non-controversial, qualified nominees.  It is up to Obama and the Democrats to, dare I say, be a whole lot more aggressive in pushing the process forward.

Four Nominees Confirmed Before Month-Long Recess, But Many More Left Behind

By Nicole Flatow, cross-posted from American Constitution Society.

The Senate left town yesterday, heading into recess several days ahead of schedule. In its final hour, the Senate confirmed by unanimous consent four of the 24 judicial nominees that were ready for a Senate vote, and scheduled a vote on a fifth nominee for September.

But as ACS Executive Director Caroline Fredrickson pointed out in a statement after the vote, 19 other candidates were left behind “whose nominations have been fully vetted and could have been voted on immediately.”

“This current pace of confirming judicial nominees is far from adequate to the job,” Fredrickson said in her statement. “While the Senate is on break during the month of August, matters involving Americans’ safety, freedom, and livelihoods will continue to be delayed. And in some of the most overburdened districts, our judges may be forced to rush through burgeoning criminal dockets without taking crucial time to consider the arguments before them.”


Most of the 19 nominees that were left behind were approved by the Senate Judiciary Committee with absolutely no recorded opposition from members of either party. Earlier this week, ABA President Stephen Zach called for the Senate to confirm all 20 unopposed nominees before the recess. And Senate Judiciary Committee Chairman Patrick Leahy pointed out that all 24 nominees could be disposed of in less than an hour.

“It is not accurate to pretend that real progress is being made in these circumstances,” Leahy said in a statement. “Vacancies are being kept high, consensus nominees are being delayed and it is the American people and the Federal courts that are being made to suffer.”

He pointed out that, just last week, “the Congressional Research Service released a report that confirms what many of us have been saying for some time: This is the longest sustained period of historically high vacancy rates on the Federal judiciary in the last 35 years.”

Fredrickson lamented that, “[f]or far too long, those of us who are gravely concerned about the health of our court system have implored the Senate to take up-or-down votes.”

She noted that a deal announced at the beginning of the year to eliminate procedural blocks on judicial nominations has made no difference, as the Senate goes into recess with nearly as many vacancies now as when the year started.

“With 110 current and future vacancies on the courts, our senators have gone home. Another month will pass with no further relief for our courts,” she said. “Upon their return in September, senators must make extraordinary efforts to expedite the pace of confirmations.”

Those nominees who were confirmed include R. Brooke Jackson to the U.S. District Court for the District of Colorado, Sara L. Darrow for the U.S. District Court for the Central District of Illinois, Kathleen M. Williams for the U.S. District Court for the Southern District of Florida and Nelva Ramos for the U.S. District Court for the Southern District of Texas. The Senate also scheduled a vote for September 6 on Bernice Bouie Donald’s nomination to the U.S. Court of Appeals for the Sixth Circuit.

See the full statement by Fredrickson here, and visit JudicialNominations.org to learn more about the judicial vacancy crisis and follow developments.