September 29, 2008

Senate Confirms 10 District Judges

On Friday, the Senate confirmed ten judges to federal district courts across the United States. Senate Judiciary Chairman Patrick Leahy touts in a press release that he “expedited the consideration of the nominees.”

Also on Friday, The White House announced the nomination of Philip P. Simon to replace retiring Judge Kenneth F. Ripple on the Seventh Circuit Court of Appeals. Since Chairman Leahy is now such a strong believer in expediting the confirmation of the President’s nominees, perhaps we will see Judge Simon confirmed in a lame duck session. While he is at it, the Chairman could break even more records by expediting the consideration of the rest of President Bush’s appellate court nominees. That would be quite impressive, Mr. Chairman.

September 23, 2008

Obama & McCain on Equal Pay

Today’s Senate Judiciary Committee hearing on “Equal Pay for Equal Work" is the latest example of Democrats’ attempts to make a campaign issue out of alleged pay discrimination against women. Democrats are clearly worried about the women’s vote in the wake of Hillary Clinton’s defeat and Sarah Palin’s emergence. No Democrat has tried harder to exploit the pay issue than Barack Obama, whose surrogates and ads have repeatedly alleged that John McCain opposes equal pay for women. For example, a recent Obama TV ad claims that McCain “opposed a law to guarantee women equal pay for equal work” (link to ad below).

These claims stretch the truth beyond recognition, so let’s look at the facts. As a result of the 1963 Equal Pay Act and Title VII of the 1964 Civil Rights Act, pay discrimination against women has been unlawful for more than forty years. Obama’s claims are always left vague enough to give the impression that McCain opposes such laws. In reality, John McCain was not in Congress when these statutes were enacted and, needless to say, has never expressed disapproval of them.

What the Obama campaign is alluding to and distorting are Sen. McCain’s reservations about a bill that would overrule the Supreme Court’s take on a technical statute of limitations issue. The bill, the Lilly Ledbetter Fair Pay Act, is named after the star witness at today’s hearing and the plaintiff in the Supreme Court case at issue, Ledbetter v. Goodyear. The Court rejected Lilly Ledbetter’s claim that Title VII’s statute of limitations is reset with each paycheck, declining to establish a special rule for pay discrimination cases. Whatever one thinks of the technical issue in the Ledbetter case, it requires an unbelievable stretch to equate opposition to overruling the decision with opposition to equal pay for women.

In its attempt to win over Hillary supporters, the Obama campaign has also attacked John McCain’s vote against the 1994 Violence Against Women Act (VAWA), sponsored by Sen. Joe Biden. These attacks conveniently ignore the important fact that a central provision of the statute – opening the federal courts to civil rights claims by female victims of violence – was struck down as unconstitutional by the Supreme Court in United States v. Morrison. The Supreme Court had to step in because too few members of Congress had the courage to put the Constitution above the political appeal of VAWA.

September 16, 2008

Aron & Levey Debate Election ’08 Stakes

Tomorrow (Sept. 17) is Constitution Day, a federal holiday marking the signing of the U.S. Constitution in Philadelphia in 1787. American University’s Washington College of Law will mark the holiday with a late afternoon debate (details below) between CFJ Executive Director Curt Levey and Alliance for Justice President Nan Aron entitled “The 2008 Election and the Future of the Federal Courts.” Aron is the leading voice on the liberal side of the battle over judicial nominations and includes among her accomplishments “helping to defeat Robert Bork's nomination to the Supreme Court in 1987” and “organizing the effort that helped support ten Senate filibusters against President George W. Bush's most extreme judicial nominees.”

As Jeffrey Toobin wrote in a recent New Yorker, “The stakes in [this] election, for the Supreme Court and all who live by its rulings, are very, very high.” Given the stakes and CFJ’s contributions to the other side of the battle – including our important role in breaking the back of the judicial filibuster and preventing the Borking of Supreme Court nominees John Roberts and Samuel Alito – we look forward to a very spirited debate.

September 17, 2008
3:45pm– 6:00 pm, Reception to Follow
American University Washington College of Law (WCL), Room 603
4801 Massachusetts Avenue, NW
Washington, DC 20016

Welcome and Introduction:
Lynda Dodd, Professor, WCL

Nan Aron, President, Alliance for Justice
Curt Levey, Executive Director, Committee for Justice

Herman Schwartz, Professor, WCL
Jamin Raskin, Professor, WCL
Jennifer Segal Diascro, Professor, School of Public Affairs, American University

For further information, please contact:
Office of Special Events & Continuing Legal Education, Phone: 202.274.4075; Fax: 202.274.4079; or

September 15, 2008

Whither Roe?; Whoopi on Constitutionalism

For someone who frets that the fate of Roe v. Wade is "hanging in the balance" in the 2008 election, liberal law professor and potential Obama Supreme Court pick Cass Sunstein was unusually candid in his Boston Globe op-ed yesterday:

"Roe v. Wade was far from a model of legal reasoning, and conservatives have been correct to criticize it. The court failed to root the abortion right in either the text of the Constitution or its own precedents. Moreover, it ruled far too broadly. … It is no wonder that millions of Americans felt, and continue to feel, that the court refused to treat their moral convictions with respect."
But, predictably, Sunstein goes on to conclude that "Roe v. Wade has been established law for 35 years; the right to choose is now a part of our culture. A decision to overrule it would … disrupt and polarize the nation."

As Radford University Professor Matthew Franck notes in response, Sunstein’s argument is a classic example of the "ratchet racket," the seeming belief of liberal jurists and scholars that, while precedent can be ignored when moving constitutional law to the left, the resulting new precedent is inviolable. Franck also reminds us that the landmark, segregation-busting Brown v. Board decision overturned a 58 year old precedent.

In his September 13 National Journal column, Stuart Taylor reaches a very different conclusion than Sunstein regarding the precariousness of Roe v. Wade. Taylor, who "lean[s] to the abortion-rights side of the policy debate," believes that "McCain could get Roe overturned only if an improbable chain of events were to unfold."

We agree with Taylor that "it is unclear whether Roberts and Alito, although undoubtedly conservative, will ever join the campaign by Justices Antonin Scalia and Clarence Thomas to overrule Roe." A narrowing of the decision is far more likely. Professor Sunstein can rest assured that, unlike the justices that gave us Roe v. Wade, Roberts and Alito will continue to take a modest approach to tinkering with the current state of the law.

Given the common misconception that Roe is all that stands between American women and the Dark Ages of "back-alley" abortions, Taylor’s most important point may well be that
"Even if the Court were to overrule Roe, that would not make abortion illegal. It would merely give states the option of banning or severely restricting abortion. Most would not do so. And women in anti-abortion states would remain free to get abortions elsewhere."
As CFJ Executive Director Curt Levey explained in a November 2006 op-ed, Taylor’s point is strongly supported by the fate of several ballot initiatives that fall. Noting that "[a]bortion restrictions were defeated in South Dakota, Oregon, and California, and voters approved a stem-cell-research measure in Missouri," Levey concluded that
"The election results in these four states give us a good indication of what abortion law may look like after Roe’s demise. … In blue states, the legal regime will be virtually unchanged from the heyday of Roe. In moderately red states, compromises between pro-life and pro-choice voters will develop. And, in a handful of very red states, substantial restrictions on abortion will be softened by a number of exceptions."

It’s a bit of an intellectual leap from Sunstein, Taylor and Franck to Whoopi Goldberg, but that didn’t stop her from weighing in on constitutional interpretation during John McCain’s appearance on The View on Friday. A discussion of McCain’s views on Roe v. Wade led to the following exchange:
Goldberg: Did you say you wanted strict constitutionalists because that … (interrupted)

McCain: No, I want people who interpret the Constitution of the United States the way our founding fathers envisioned for them to do.

Goldberg: Should I be worried about being a slave, about being returned to slavery because certain things happened in the Constitution that you had to change?
Whoopi’s remarks might be humorous were it not for the fact that they are an instance – albeit an extreme one – of another common misconception, namely that progress under the law for the oppressed has come through the "living Constitution" – that is, judicial activism.

What rescued this nation from the ages of slavery and Jim Crow is not a judiciary that imposed its values and social theories on the law. Instead, democratically-enacted constitutional amendments and legislation – and the court decisions that have faithfully enforced them – are responsible for all of the landmark civil rights gains for minorities, women, and the disabled in American history. Judicial activism’s most notable "contribution" to civil rights law was the notorious Dred Scott decision, which discovered a constitutional right to own slaves and should forever serve as an awful reminder of the dangers of allowing judges to creatively interpret the Constitution.

September 10, 2008

Palin’s Impact on Judicial Picks

An article in the Legal Times discusses the impact that Sarah Palin and Joe Biden would have on judicial picks if elected vice president. For those who question the potential influence of a VP on judicial selection, the Legal Times notes that “Gore was a strong voice … in pushing the nominations of Justices Ruth Bader Ginsburg and Stephen Breyer.” The article concludes that
“Palin … is thought to be an assurance that Sen. John McCain will make good on his promise to nominate more judges in the mold of Chief Justice John Roberts Jr. and Justice Samuel Alito Jr.”
We agree:
“McCain’s choice of Palin, a social conservative, shut down criticism from [CFJ’s Curt] Levey and others. ‘McCain is a moderate, and she’s more of a movement conservative,’ Levey says. ‘If she has any effect on his judicial picks, I think it’ll be a positive one.’”
The article notes that, while Palin has less of a record than Biden on judicial selection – as Judiciary chairman, he led the fight to defeat Robert Bork and Clarence Thomas – Palin
“already has had more impact on the Alaska judiciary than her predecessor. Since taking office in December 2006, Palin has seated more than a dozen judges, including a state Supreme Court justice and a state court of appeals judge, the first appellate appointments in the state in more than a decade.”
Palin’s questions when interviewing potential nominees for the Alaska bench give assurance that she understands two of the most important principles of judicial selection: 1) select nominees who believe in judicial modesty and restraint, and 2) impose no litmus tests (both principles can be found in the judges section of the GOP’s 2008 platform). The Legal Times reports that
“[Andy] Harrington, executive director of Alaska Legal Services Corp., interviewed with Palin in November 2007, days after the state Supreme Court issued a ruling striking down a law that required girls less than 17 years old and younger to get permission from their parents before receiving an abortion. … Harrington anticipated a question about the ruling. But Palin never asked about the case or any other, Harrington says. … At one point, she asked him to define an activist judge. … Another judicial candidate who interviewed with Palin this year says Palin asked questions about work history, background, and basic judicial philosophy. ‘Some of my colleagues say the Constitution is a living, breathing document. What do you think?’ Palin asked.”
Of course, some liberal judges and commentators claim that it is they who believe in judicial restraint. And perhaps a few of them do. But for those who doubt which side of the political spectrum most consistently supports the rule of law, the results of a Rasmussen survey this month should dispel those doubts. The survey found that McCain supporters overwhelming believe – by an 82% to 11% margin – that “the Supreme Court [should] make decisions based on what's written in the Constitution and legal precedents,” rather than “be guided mostly by a sense of fairness and justice.” Obama supporters, on the other hand, believe the converse by a 49% to 29% margin.

Finally, see here for a bio on U.S. District Judge Loretta Preska of New York, who was nominated yesterday to the Second Circuit.

September 08, 2008

Judges Battle Resumes; Justice Ginsburg Clone

With the political conventions over and Congress back today for its last few weeks of pre-election business, the final push for the confirmation of the President’s judicial nominees is on. We’ll look at the fight ahead, but first, here’s a few words about the elephant in the room, namely the two or more Supreme Court vacancies likely to occur under President McCain or Obama.

In an article about “a fascinating new documentary film” chronicling the Supreme Court confirmations battles of 2005-06,” MSNBC reports that “Advise and Dissent” will be released “as soon as the next vacancy opens on the court.” The film was screened in Minneapolis during the Republican Convention. MSNBC asked CFJ’s Curt Levey, one of the panelists in the discussion that followed the screening, whether a Republican minority in the Senate would fail to stop an objectionable Obama Supreme Court nominee “just as surely as Democrats did in trying to stop Alito and Roberts”:
“It very much matters who Obama nominates," said Curt Levey … If Obama sends up someone like liberal Justice Ruth Bader Ginsburg, then “I think she could be stopped fairly easily because she has such radical views. … If you had the proper resources to expose her record I think red-state Democrats would go running.” “As long as we have more than 40 Republicans plus red-state Democrats, I think extreme nominees can be stopped,” he added.
More immediately, the battle over the direction of the federal courts centers on the three dozen judicial nominees pending in the Senate, many of whom have been actively obstructed by Senate Democrats. The 28 pending district court nominees have languished in the Senate for up to 22 months, and half of the eight pending appeals court nominees have been waiting for more than a year.

To get a sense of what’s possible and reasonable in the remaining months of the 110th Congress, consider this statistic. During the previous three president’s final months in office – specifically Sept. 1 through Jan.19 – an average of 2 appeals court and 7 district court nominees were confirmed. Most notably, if we go back even further to Jimmy Carter, we find that Supreme Court Justice Stephen Breyer was confirmed to the U.S. Court of Appeals just a month before Carter left office, despite being nominated less than a month earlier. If not for the Senate’s swift action, it is very unlikely that Breyer would be on the High Court today.

Of course, Senate Democrats will do their best to fall short of these historical averages, just as they have fallen far short of the historical average (17) for appeals court confirmations by an opposition Senate in a president’s final two years. Therefore, the number of judicial confirmations in the final months of the 110th Congress will depend largely on the efforts of the GOP leadership and Judiciary Committee Republicans to press the Democratic majority for action on nominees.

Senate Republicans should focus on the following three goals:

1) Take care of the low hanging fruit. Most importantly, make sure that the two appeals court nominees supported by a home state Democratic senator – Glen Conrad (4th Circuit) and Paul Diamond (3rd Circuit) – get confirmed.

2) Use all possible leverage to press for action on the three additional appeals court nominees without home state opposition: Peter Keisler (DC Circuit), Bob Conrad (4th Circuit), and Steve Matthews (4th Circuit). Remind Judiciary Chairman Leahy of his repeated statements that the support of home state senators is the key to getting through his Committee. And remember that, with four vacancies and a 6-5 GOP-Democrat split, the soul of the all-important Fourth Circuit hangs in the balance.

3) Aim to meet or exceed the historical average of seven district court confirmations in a president’s final three months. Given the large number of pending district court nominees – most of whom are uncontroversial – this goal is well within reach.

Senate Republicans have every reason to make these goals a high priority. Ever since Democratic obstruction of President Bush’s judicial nominees became an issue in 2002, the judges issue has been
a central element of GOP victories in key Senate races, including John Thune’s victory over Tom Daschle. “There’s no doubt in my mind that we won races all throughout the country [on the judges issue],” says Karl Rove.

Conversely, Senate Democrats remember the Daschle defeat and don’t want their unprecedented obstruction of judicial nominees – including their hostility to nominees with traditional values – to be a campaign issue. As a result, Republicans will have increased leverage on judges during the Senate session that began today.