New report from AFJ blasts impact of Republicans' "ceaseless obstruction of judicial nominees"

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AFJ released this press release today:
WASHINGTON, D.C.,  Nov. 19, 2012 —  “Ceaseless obstruction of judicial nominees” has left the federal bench with more vacancies than when President Obama first took office, according to a new study from the Alliance for Justice.

“The Republican record gives new meaning to the term ‘obstruction of justice’” said AFJ president Nan Aron.  “When vacancies go unfilled, Americans wait months, sometimes years to get a chance to stand up for their rights in court.  Some lose that chance entirely.”

AFJ’s report, Unfinished Business, provides the best publicly-available information on judicial nominations. It includes comprehensive statistics on President Obama’s judicial nominees since the beginning of his administration, the Senate’s confirmation process, and comparative data comparing the first-term records of the Obama, Bush, and Clinton administrations.

The report calls on the Senate to “confirm all of the 19 nominees currently pending on the Senate floor during the lame duck session.  Fourteen of the 19 nominees faced no substantive opposition in the Judiciary Committee, and ten would fill judicial emergencies,” – that is, situations where a vacancy has caused such profound delays that the situation has been declared an emergency by the Administrative Office of the U.S. Courts.

“We call on the Senators to give Americans something to be thankful for and confirm these judges when they return to work next week,” Aron said.

This report is the latest in a series documenting delays in filling judicial vacancies.  Among the findings:

• During President Obama’s first term, current vacancies have risen by 51%.  This trend stands in stark contrast to President Clinton and President Bush’s first four years, when vacancies declined by 65% and 34%, respectively.
• Nearly one out of eleven Federal judgeships remains vacant. Judicial vacancies are nearly triple what they were at this point in President George W. Bush’s first term.
• The number of seats considered to be “judicial emergencies” has risen by 65%, from 20 at the beginning of President Obama’s term to 33.
• The Senate has confirmed far fewer nominees at this point in President Obama’s first term than it had for his two predecessors in office. The percentage of confirmed district court nominees is at historically low levels.
• Republican appointees still dominate the federal judiciary. Since the end of the Bush Administration, the percentage of Republican-appointed circuit court judges only dropped from 61.3% to 51.8%, and the percentage of Republican-appointed district court judges only dropped from 58.6% to 53.6%.
• Republicans filibustered a historic number of district court nominees. Senate Majority Leader Harry Reid (D-NV) was forced to file cloture on a record 20 district court nominees. Cloture was filed on only one district court nominee during the Clinton and W. Bush presidencies.

“In sum,” the report states, “The American people deserve a federal court system that is fully staffed and able to fulfill the promise of justice for all.”

The full report is available here (PDF).
And click here if you want to help us press the Senate to confirm these nominees.

Jeffrey Toobin on reforming the Senate to get judges confirmed

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Jeffrey Toobin, author and legal analyst for The New Yorker and CNN (and guest at a big AFJ event in New York City in December) has an important column on the New Yorkerwebsite today on the urgent need to reform Senate rules.

Jeffrey Toobin

In particular, he endorses a proposal that would curb the filibuster, which has been used by Senate Republicans to block almost every major Obama administration initiative.  As is discussed in detail in the previous post, it’s also contributed to a critical shortage of judges, because it’s been misused to block the confirmation of federal judges – even those who are considered noncontroversial.

There are a number of proposals kicking around at the moment.  Toobin singles out what may be the most elegant: require that Senators who want to filibuster do it the old fashioned way, by standing up and talking – and talking, and talking for aslong as they can hold out – the way Jimmy Stewart did it in Mr. Smith Goes to Washington.  That might contribute to restoring the filibuster to its intended purpose – blocking the occasional piece of legislation that the minority party considers truly egregious. Toobin writes:

The theory behind their idea is that the requirement to stand up and filibuster would create a real deterrent to the profligate use of the tactic. It’s a modest change—filibusters would still exist—but a useful one.

Though Toobin doesn’t mention it, this change also would make the misuse of the filibuster to obstruct the work of the Senate more visible – and audible – to the American people.  They could watch Senate business grind to a halt as Senators filled hour after hour on C-SPAN for days at a time.

Toobin concludes:

Senate leaders tend to be institutional conservatives, who worry,with some justification, that their party will be in the minority some day. ButRepublican obstruction has become such an obstacle to legislative progress thatthe risk seems worth taking.

This is especially true because judicial nominations are likely to be more of a focus for President Obama in his second term. With the House in Republican hands for the foreseeable future, it is unlikely that major legislation will pass both bodies of Congress. But the Senate has a constitutional obligation to take up Obama’s judicial nominees—and the fights over them are likely to be fierce. If Reid and his fellow Democrats give up on filibuster reform, they will likely doom the President’s second-term legacy before he even has a chance to write it.

If you’d like to ask Jeffrey Toobin about this yourself, or hear more from him on this topic, the current state of the Supreme Court and other concerns, please join us in New York City on the evening of Dec. 6, when he discusses these issues with AFJ President Nan Aron.  The event is free,and you can register here.

Why we still need the Voting Rights Act: One story sums it up

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You know what the people who wantto get rid of a key provision of the Voting Rights Act are saying: They claim it’sa relic from an era when America had just ended legal apartheid.  We’re past those bad old days, they say.But the fact that you can’t put a“whites only” sign on a water fountain or impose a poll tax doesn’t mean racismis a thing of the past.

President Lyndon Johnson signs the Voting Rights Act 
as Martin Luther King, Jr., and other civil rights leaders look on
LBJ Library photo by Yoichi R. Okamoto

Consider this story, told by Tom Perez, assistant attorney general for the JusticeDepartment's Civil Rights Division, and reportedby The Huffington Post:A county in Texas wanted to moveits polling place from a school to a private club – a club that had a historyof segregation.  But Texas is covered bythe Voting Rights Act.  Under Section 5of the act, the county had to get advance approval, known as “pre-clearance,”from either the Justice Department or a panel of the U.S. Court of Appeals forthe District of Columbia.  It never got that far.  As soon as the Justice Department asked formore information – the equivalent of raising a governmental eyebrow - thecounty withdrew the request.It is Section 5 that now is underchallenge, in a case to be heard by the Supreme Court during the currentterm."Section 5 continues to benecessary, and Section 5 is not over inclusive," Perez said. "Andthat is why we will continue to vigorously defend Section 5 in the SupremeCourt."

Nan Aron in the Huffington Post on Justice Alito's scary speech

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In the Huffington Post, AFJ President Nan Aron writes about the speech Justice Samuel Alito gave at a fundraising dinner for the Federalist Society.  She writes:

Although most of the press coverage of this speech has focused on Justice Alito's full-throated defense of the Citizens United decision and his rationalization of the broadest possible interpretation of the corporate personhood concept (an argument effectively dismantled by the New York Times editorial page), there was another moment in Alito's remarks that I think was more important -- and scary.

Read about that moment in the full column here - and please let the Huffington Post community know what you think by posting a comment.

Grassley Intentionally Misstates Judicial Confirmation Record to Whitewash Obstructionism

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Senator Grassley

Senator Charles Grassley (R-Iowa) recently responded to a letter sent to him from 16 national and Iowa groups criticizing him for unnecessary delays in confirming judicial nominees. In his response Grassley claimed that:

"[F]or the four years of this administration, we approved 160 nominations, and during the same period of time in the last Bush administration, there were 120 nominations."

This statement is both wrong and intentionally misleading.

First off, Grassley is comparing the first four years of the Obama Administration to the second four years of the Bush Administration. This is not “the same period of time.” Second, this is particularly misleading because Bush had a comparatively huge number of confirmations in his first term—202 in fact (see chart below). During Bush’s second term, there simply were not that many vacancies to fill.

With his statistical slight-of-hand, Grassley is trying both to minimize his—and his fellow Republicans’— obstruction of President Obama’s nominees during the last four years and make himself look reasonable!

You might expect more transparency and honesty from the ranking member of the venerable Senate Judiciary Committee. Instead, it seems, we’re getting one more attempt to mislead the public and obstruct nominees going forward. Iowans—and Americans—deserve better.

----
For Senator Grassley’s information, here are the facts:

While we’re giving thanks tomorrow …

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...let’stake a moment to think about the workers at Walmart who will be out on a picketline on Friday  - or forced to work onThanksgiving night – while we enjoy our time with friends and family.  AFJ’sBolder Advocacy Blog has been spotlighting the campaign for justice at Walmart.  Check out these two recent posts.  This one offers and overview of the campaign,and how all of us can help:

BlackFriday Protests at Walmart
This Friday, thenation’s biggest shopping day, thousands of Americans will be calling onWalmart to improve working conditions at its stores and warehouses. The Black Friday day of action is the culmination of a wave of worker activism thatstarted in October with an historic walkout in Los Angeles.
As the recentrecession accelerated the growth of the part-time economy, theopposition to Walmart’s practices takes on renewed relevance. Walmartsets an industry standard by creating part-time positions with low wages,unaffordable benefits, erratic scheduling, and unsafe workplaces.
Read the full post here
Andthere’s more about the campaign in this guest blog from Erica Smiley,Campaigns Director for Jobs with Justice and American Rights at Work
Walmart Can Change Its Ways — if WeMake Them

Goodjobs are the cornerstone of a strong, healthy economy.  A good job is onewhere workers have collective bargaining rights, employment security, and wagesand benefits that allow their families to enjoy a decent standard ofliving.  Thus, organizing to transform the economy means organizing totransform work into permanent, secure jobs where workers have dignity andrespect.
Read the full posthere
The many complaints against Walmart include widespreaddiscrimination against women.  Thecurrent protests are needed in part because the Supreme Court failed the womenof Walmart when they ruled against them in a class-action suit.  The Walmart case is among those featured inAFJ’s documentary Unequal Justice: TheRelentless Rise of the 1% Court.
On Tuesday, Sarita Gupta, executive director of Jobs withJustice and American Rights at Work will discuss the Walmart campaign at theformal premiere of Unequal Justice inWashington.  She’ll be part of a panelthat also includes AFJ President Nan Aron, Pam Gilbert, former executivedirector of the U.S. Consumer Product Safety Commission and Linda Lipsen, CEOof the American Association for Justice.  Theevent is free, and there’s still time to register here.

Talking turkey about rubber chicken – and Supreme Court ethics

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While most of us still may be thinking about yesterday’sturkey dinner right now, at Alliance for Justice we’re also thinking about ducks – as in “if it lookslike a duck and quacks like a duck …” and chicken, as in the rubber varietyoften served at fundraising dinners.
What brings all this poultry to mind is the response of theFederalist Society when Alliancefor Justice and Common Cause pointed out that, for the second year in arow, a justice of the United States Supreme Court was headlining its annualfundraising dinner.  Were any other federaljudge to do this, it would be a violation of the Code of Conduct for federaljudges – but Supreme Court justices are exempt.
The fact that the event was a fundraiser is crucial.  We have no problem with SupremeCourt justices speaking at events, even when they are hosted by groups with astrong ideological point of view.  Wherethey cross the line – and ignore the code of conduct – is when their appearanceis used to raise money for the organization.
The Federalist Society response, accordingto the Associated Press: It’s not a fundraiser.  In fact, they say, they even lose money onevery meal. 
That’s a curious response given what one finds on the program for the event.  More than35 major corporations and prominent law firms are listed as “sponsors” of theevent.  There are Bronze Sponsors” like Covingtonand Burling and the Lincoln Financial Group, “Silver Sponsors,” including JonesDay, Patton Boggs, PepsiCo and Facebook, and “Gold Sponsors,” including Chevron,Verizon and Sullivan & Cromwell.  Toppingthem all is the “Sponsoring Law Firm,” Gibson, Dunn & Crutcher.
So either the hotel where the dinner took place serves theworld’s most expensive rubber chicken – or it was a fundraiser.
It’s no wonder that, when the Federalist Society said much the same last year, whenJustices Clarence Thomas and Antonin Scalia headlined the dinner, Matt Wuerker,the Pulitzer Prize-winning cartoonist for POLITICO didn’tbuy it:

(c) Matt Wuerker

 Whenit comes to the ethics of speaking at a fundraiser, the success of the eventdoesn’t matter.  As Prof. Stephen Gillersof New York University School of Law explained in an analysis written for AFJ:
It may turn outthat the organization is disappointed because the event does not earn a profit.But that is irrelevant. Judges have an obligation in the first instance toassure themselves that the event will not be a fundraiser. 
It all illustrates, once again, why it’s so important tomake the provisions of the Code of Conduct binding on Supreme Courtjustices.  Since it doesn’t appear likelythat the justices will do this themselves, Congress should do it for them.

Guest blog: The human consequences of judicial decisions

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By James B. Steele
Pulitzerprize-winning journalist James B. Steele, co-author with Donald Barlett of The Betrayal of the American Dream,had been scheduled to offer some context for the economic issues discussed inAFJ’s documentary Unequal Justice, at its Washington D.C. premiere.  Unfortunately, when we had to reschedule thepremiere to tonight because of Hurricane Sandy, Steele was unable to joinus.  But he believes the issues discussedin the documentary are so important that he sent us this guest blog.  There’s still time for you to registerto attend the free screening tonight. And Steele’s essay, below, serves as a great introduction for tonight’sprogram.Theinequality that has transformed the United States into a place eerilyresembling the nation during the robber baron era didn’t just happen.

It’s theresult of deliberate policies in taxes, trade and deregulation that have enabledthe top one percent of Americans to take control of more wealth than the bottom90 percent.

James B. Steele, right, with co-author Donald Barlett

Therole of Congress, corporate America and various Administrations in implementingpolicies that have tilted the economic playing field against the best interestsof average Americans is well established. What is not so well known is how thecourts have contributed to this economic imbalance. Unequal Justice brilliantly shines a light on this neglected areaand exposes the human consequences that judicial decisions have on the lives ofmillions of Americans.Inthe research for our book The Betrayal ofthe American Dream,  we came acrossexample after example of how the courts have stacked the deck againstAmericans. One of the most heart-rending cases was story of Joy Whitehouse, towhom we dedicated the book.Joyand her late husband raised four children and gave them a solid upbringing onhis salary as a long-haul truck driver. After he was killed in a highway crashcaused in part by faulty maintenance of his truck, Joy expected to receive $598every two weeks from the company in retirement. But the company reneged on thepayment when it entered bankruptcy court and asked a judge to dismiss Joy’sclaim. Ultimately the court awarded a few cents on the dollar to somecreditors; Joy received nothing. Hobbled by ill health and unable to work, Joywas on her own.Ona visit to her modest mobile home outside Salt Lake City, she led me to a smallshed in her backyard. Inside was a jumble of discarded aluminum cans. She hadcollected used soda, soup and vegetable cans alongside the roads in herneighborhood and from neighbors. Twice a month a friend drove her to a recyclerwho gave her around $30 each time.  Whenyour only monthly income is $942 from Social Security, she said, the extra $60comes in handy.

Remarkably,she wasn’t bitter. She didn’t decry her fate. She just wanted what her husband had earned and which she as mother oftheir children was owed. After she was denied that, she did what so manyhard-working Americans do: she tried to make the best of a situation that wasnot of her own making.

“You putyour pride in your pocket and you learn to help yourself,” she told me. “I savecans.”

Joy was one of a kind, but we saw in her storywhat was happening to so many middle class Americans who’ve seen their economicsecurity taken from them by Wall Street, Washington and the courts.  The United States, the ostensible land ofopportunity, has turned its back on it's own people. Restoring balance in oureconomic system is crucial, so all may share in the hope, promise andprosperity of this nation.

Nan Aron in the Huffington Post on Justice Alito's scary speech

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In the Huffington Post, AFJ President Nan Aron writes about the speech Justice Samuel Alito gave at a fundraising dinner for the Federalist Society.  She writes:

Although most of the press coverage of this speech has focused on Justice Alito's full-throated defense of the Citizens United decision and his rationalization of the broadest possible interpretation of the corporate personhood concept (an argument effectively dismantled by the New York Times editorial page), there was another moment in Alito's remarks that I think was more important -- and scary.

Read about that moment in the full column here - and please let the Huffington Post community know what you think by posting a comment.

Florida Republicans’ cold, calculated effort to suppress the vote

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More evidence that we still need the Voting Rights Act: Theracial bias that led to it is alive and well.
            Here’s thevoter suppression debate in a nutshell:
            Republicans:We just want to cut back on early voting and impose photo identificationrequirements to curb fraud.
            Democrats:You just want to make it harder for poor people and people of color to vote.
            But once inawhile, a Republican tells the real story – as when Mike Turzai, the majority leaderof the Pennsylvania House of Representatives, seen on this 13-second video, explainsexactly why his state passed a voter ID law:

            And now, acold dose of reality from the Sunshine State – straight from the elephants’mouths.
            First, Florida’sformer Republican governor, Charlie Crist said that, as The Palm Beach Post put it in acomprehensive story Sunday, “fraud concerns were advanced only asa subterfuge for the law’s main purpose: GOP victory.”  Then came a former chairman of the FloridaRepublican Party – Jim Greer.

            “TheRepublican Party, the strategists, the consultants, they firmly believe thatearly voting is bad for Republican Party candidates,” Greer told The Post. “It’s done for one reason and one reason only.… ‘We’ve got to cut down on early voting because early voting is not good forus,’ ” Greer said he was told by those staffers and consultants. “They nevercame in to see me and tell me we had a (voter) fraud issue,” Greer said. “It’sall a marketing ploy.”

            Current top Republican officialsin Florida dismiss Greer and Crist as the equivalent of disgruntledex-employees. Crist became an independent and endorsed President Obama.  ThePost notes that Greer faces criminal charges of stealing $200,000 from theparty.  Greer denies the charges – and issuing the party.
But Crist and Greer aren’t the only onescoming forward.  The Post quotes what it calls “two veteran GOP campaignconsultants” who confirm their charges.

Wayne Bertsch, who handles local andlegislative races for Republicans, said he knew targeting Democrats was thegoal.  “In the races I was involved in in 2008,when we started seeing the increase of turnout and the turnout operations thatthe Democrats were doing in early voting, it certainly sent a chill down ourspines. …

Another GOP consultant, who did not want tobe named, also confirmed that influential consultants to the Republican Partyof Florida were intent on beating back Democratic turnout in early voting after2008.

All of these current and formerRepublicans said the voter suppression efforts targeted African Americans.
Attempts to stop African Americans andother people of color from voting are why Congress passed the Voting Rights Actof 1965 – and why it was reauthorized by near-unanimous vote in 2006.  Now, a key provision of the law has beenchallenged in the Supreme Court.  Thatprovision requires certain states and localities – including five counties inFlorida – to get permission from the U.S. Department of Justice or a federalcourt before changing voting procedures. As a result, Florida had to negotiatewith the federal government over voting hours in those counties.
But what happens if the Supreme Courtrules this key section of the Voting Rights Act unconstitutional?  Will that further embolden those whose realgoal is preventing people of color from voting?

Britain's House of Lords Debates Role of Religion In Society

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Last Thursday, Britain's House of Lords held a 90-minute debate on the role of religion in society in the United Kingdom. (Full text of the debate.) Lords from numerous faith traditions spoke. The concluding statement was made by Baroness Warsi, Minister for Faith and Communities, who said in part:

This Government believe that religion plays a vital role in British society. Not only do we support people in their right to follow a faith if they choose to do so; we also celebrate faith and faith communities' contribution to society...

Places of worship of different faiths in a town or city can sometimes be unaware of the work each is doing, often to address similar problems. The Government want to help build effective, co-operative working relationships between people of different faiths.... The Government are also happy to support A Year of Service, to highlight and link up faith-based volunteering efforts during Her Majesty the Queen's Diamond Jubilee year....

The Government are also committed to maintaining the status of religious education as a compulsory subject that all pupils must study throughout their schooling, subject to parental choice. Religious education is important so that children can understand the history that has shaped the values and traditions of this country, forming a key part of promoting the spiritual, moral, social and cultural development of children and young people.... The Government also remain committed to the provision of collective worship in schools-or, as I knew them, assemblies.

... UK has a strong Christian heritage.... Britain is proud of its established church and Europe must be more confident in its Christianity. It is therefore right that religious education reflects the fact that the religious traditions of Great Britain are in the main Christian. Last year, every state school in England was provided with a King James Bible to mark its 400th anniversary and recognise the huge influence it has had on our culture, language, society and values....

The noble Lord, Lord Curry, also raised concerns about the perceived marginalisation of Christians. I am in receipt of the Christians in Parliament All-Party Parliamentary Group report setting out these concerns, and we are currently considering a response to that....

This Government believe that faith should have a seat at the table in public life.... [T]his is not a position of privilege but that of a strong contributor to the public debate.... This Government have held faith receptions at Downing Street for major festivals: Vaisakhi, Eid, Hanukkah and Diwali-and, yes, it was right that this coalition Government introduced the celebration of Easter as well.

Priest's Conviction Was Based On Excessive Religious Evidence

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In State of Minnesota v. Wenthe, (MN Ct. App., Nov. 26, 2012), a Minnesota appeals court held that the state's clergy sexual conduct statute is not facially invalid under the Establishment Clause.  However, the court upheld the as applied challenge to the law raised by a priest who had been convicted under it for having sex with a woman for whom he served as confessor. The court held that the conviction was invalid under the Establishment Clause because it was based on excessive religious evidence:

the religious evidence provided the jury with religious standards for judging appellant’s conduct.  It invited the jury to determine appellant’s guilt on the basis of his violation of Roman Catholic doctrine, his breaking of the  priestly vows of celibacy, and his abuse of the spiritual authority bestowed on Roman Catholic priests; additionally, the evidence invited concern about the response of church authorities to the victim’s complaint.

The Minneapolis Star-Tribune reports on the decision.

Poland's Constitutional Court Bars Kosher and Halal Slaughter, But Decision Is Pre-empted By New EU Regulation

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AP reports that Poland's Constitutional Tribunal yesterday held that Jewish and Muslim ritual slaughter of animals without first stunning them violates Poland's animal protection laws, and that the agriculture minister unconstitutionally exceeded his powers when he issued regulations in 2004 permitting kosher and halal slaughter.  AFP reports, however, that the ruling is largely symbolic because on January 1, 2013, European Union Council Regulation No. 1099/2009 creating uniform EU rules on animal slaughter goes into effect. That Regulation permits ritual slaughter without stunning so long as the slaughter takes place in a slaughter house.  January 1 is the same date on which the Polish court's ruling takes effect, so-- according to Poland's Agriculture Minister-- it will be immediately overriden by the EU rules. Animal rights activists say it is possible for Poland to request and exception from the regulation.  Poland is a leading exporter of kosher and halal meat to other European countries, last year exporting $259 million worth.

Suit Claims "Conversion Therapy" For Gays Violates State Consumer Fraud Act

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The Southern Poverty Law Center announced yesterday that it has filed a first-of-its-kind lawsuit in state court in New Jersey on behalf of 6 plaintiffs seeking equitable relief and damages for fraud against an organization that offers "conversion therapy" to gay men.  Defendant is JONAH, Jews Offering New Alternatives for Healing.  The complaint (full text) in Ferguson v. JONAH, (NJ Super Ct., filed 11/27/2012) alleges various violations of New Jersey's Consumer Fraud Act. The Daily Beast reports in depth on the lawsuit.

Challenge To Contraceptive Coverage Mandate By Pittsburgh Diocese Dismissed On Ripeness and Standing Grounds

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In Zubik v. Sebelius, (WD PA, Nov. 27, 2012), a Pennsylvania federal district court dismissed on ripeness and standing grounds a challenge by the the Catholic Diocese of Pittsburgh, Catholic Charities of Pittsburgh and Catholic Cemeteries Association of Pittsburgh to the contraceptive coverage mandate issued under the Affordable Care Act. The court concluded that:

the safe harbor provisions of the regulation itself protects all of the Plaintiffs from any potential enforcement action until at least January 1, 2014.  Further, the health care plan offered by the Diocese, as well as three of the four health care plans offered by Catholic Cemeteries, share additional protection under the regulations insofar as they are each grandfathered under the ACA.... Defendants have committed to amending the preventive services coverage regulations well before January 2014 to accommodate the religious objections of organizations such as Plaintiffs.

Trib Total Media reports on the decision.

Supreme Court Sends Free Exercise Challenge To Affordable Care Act To 4th Circuit

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Yesterday, in an unusual move, the U.S. Supreme Court revived a 4th Circuit case which challenges the Affordable Care Act (ACA) on 1st Amendment, 14th Amendment and RFRA grounds. In Liberty University v. Geithner, plaintiffs claim, among other things, that the ACA permits federal funding of abortions in violation of the free exercise clause and the Religious Freedom Restoration Act. They also claim that the ACA violates the Establishment Clause and equal protection clause because the narrow religious exemptions in the Act favor certain religious adherents. The 4th Circuit dismissed the case, holding that the federal tax Anti-Injunction Act barred the lawsuit, and the Supreme Court declined to review that decision. Plaintiffs, however asked for a rehearing on the decision to deny review, since earlier this year, in National Federation of Independent Business v. Sebelius, the Supreme Court held that the Anti-Injunction Act does not bar a challenge to the ACA.  Yesterday, the Supreme Court held (Order List, Docket No. 11-438):

The petition for rehearing is granted. The order entered June 29, 2012, denying the petition for a writ of certiorari is vacated. The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of National Federation of Independent Business v. Sebelius.

Liberty Counsel issued a press release applauding the court's action. Christian Science Monitor also reports on the court's action. (See prior related posting.)

Priest's Conviction Was Based On Excessive Religious Evidence

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In State of Minnesota v. Wenthe, (MN Ct. App., Nov. 26, 2012), a Minnesota appeals court held that the state's clergy sexual conduct statute is not facially invalid under the Establishment Clause.  However, the court upheld the as applied challenge to the law raised by a priest who had been convicted under it for having sex with a woman for whom he served as confessor. The court held that the conviction was invalid under the Establishment Clause because it was based on excessive religious evidence:

the religious evidence provided the jury with religious standards for judging appellant’s conduct.  It invited the jury to determine appellant’s guilt on the basis of his violation of Roman Catholic doctrine, his breaking of the  priestly vows of celibacy, and his abuse of the spiritual authority bestowed on Roman Catholic priests; additionally, the evidence invited concern about the response of church authorities to the victim’s complaint.

The Minneapolis Star-Tribune reports on the decision.

Court Rejects Establishment Clause Challenge To Seizure of Funds

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In Midamar Corp. v. United States, (ND IA, Nov. 19, 2012), an Iowa federal district court denied a motion by a company that is a leading supplier of Halal food to order release of $454,000 seized by the government from the company's bank account.  According to the Washington Post, the government is suggesting that the company improperly branded and sold meat products as meeting Muslim dietary requirements when that was not the case.  Rejecting the company's motion, the court said in part:

Next, Midamar argues that the court must quash the warrant because, according to Midamar, the government presumably intends to seek an indictment charging Midamar with fraud, and any fraud charges would require the court to define Halal, a religious term without an agreed-upon meaning, in violation of the Establishment Clause of the First Amendment of the United States Constitution.  The court finds that such argument is unavailing.  Midamar cites no  authority in support of its contention that this is an appropriate basis to quash a warrant.  Moreover, such an argument is premature.  The government has not filed any charges against Midamar and, consequently, the court is without jurisdiction to consider the constitutionality of any potential fraud charges.

Saudi-Backed Interreligious Center Opens In Austria

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Yesterday, the inauguration ceremony marking the official opening of the King Abdullah bin Abdulaziz International Centre for Interreligious and Intercultural Dialogue (KAICIID) was held in Vienna, Austria, the Centre's home base.  Among those speaking at the opening ceremony was U.N. Secretary General Ban Ki-moon (full text of remarks). As reported by Reuters, KAICIID was launched by Saudi Arabia as an international organization with a multi-faith board to foster interfaith understanding and help deal with health crises. According to the Huffington Post, the Centre is backed by an international treaty signed by Austria, Spain and Saudi Arabia, with support from the Vatican. Saudi Arabia is funding the start-up costs and the first 3 years' budgets. Some in Austria, as well as some Saudi dissidents, are critical of the Centre, fearing that it will focus on the strict Wahhabi version of Islam. It is expected that the Centre's board will eventually hold a meeting in Saudi Arabia, which will pose the question of whether the nation will allow board member Rabbi David Rosen, who is an Israeli citizen, to attend.

Appeals Court Reverses Denial of Name Change After Gender Reassignment

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In In re Steven Charles Harvey, (OK Ct. Civil App., Nov. 20, 2012), an Oklahoma appeals court held that a trial court judge abused his discretion in denying Steven Charles Harvey, who was undergoing a sex change, the right to change his name to Christie Ann Harvey. The trial judge (full text of trial court opinion) had held that it would assist that which is fraudulent to allow the name change because "a sex change cannot make a man a woman or a woman a man." The trial judge argued this could lead to inadvertent or illegal same-sex marriage, or, in case of a crime, could lead police to ignore a female suspect because they had retrieved male DNA.  In support of his denial of the name change petition, the trial court judge quoted from the Biblical book of Genesis: "So God created man in His own image, in the image of God created he him; male and female created he them...." and went on to say: "The DNA code shows God meant for them to stay male and female." The appeals court agreed with petitioner that there is nothing fraudulent in the use of a traditionally female name by one with male DNA. The Oklahoman reports on the appeals court decision.

Preachers' Access To Tour of Lights Festival In Court Again

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Last year, a Minnesota federal district court granted a preliminary injunction to prevent city of Duluth police officers from interfering with activities of two street preachers at the Bentleyville Tour of Lights-- a holiday festival held each year on city property, but sponsored by a private non-profit group. (See prior posting). This year, the city is attempting to limit the preachers to a new "First Amendment zone" created in a parking lot outside one of the entrances to the festival. According to the Duluth News Tribune, last Tuesday the preachers filed a new motion in federal district court again seeking an order that officials allow them inside the park during the Tour of Lights. The city, however, says it has negotiated a new contract with festival sponsors that allow them to set rules on who is allowed in the display.

Britain's House of Lords Debates Role of Religion In Society

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Last Thursday, Britain's House of Lords held a 90-minute debate on the role of religion in society in the United Kingdom. (Full text of the debate.) Lords from numerous faith traditions spoke. The concluding statement was made by Baroness Warsi, Minister for Faith and Communities, who said in part:

This Government believe that religion plays a vital role in British society. Not only do we support people in their right to follow a faith if they choose to do so; we also celebrate faith and faith communities' contribution to society...

Places of worship of different faiths in a town or city can sometimes be unaware of the work each is doing, often to address similar problems. The Government want to help build effective, co-operative working relationships between people of different faiths.... The Government are also happy to support A Year of Service, to highlight and link up faith-based volunteering efforts during Her Majesty the Queen's Diamond Jubilee year....

The Government are also committed to maintaining the status of religious education as a compulsory subject that all pupils must study throughout their schooling, subject to parental choice. Religious education is important so that children can understand the history that has shaped the values and traditions of this country, forming a key part of promoting the spiritual, moral, social and cultural development of children and young people.... The Government also remain committed to the provision of collective worship in schools-or, as I knew them, assemblies.

... UK has a strong Christian heritage.... Britain is proud of its established church and Europe must be more confident in its Christianity. It is therefore right that religious education reflects the fact that the religious traditions of Great Britain are in the main Christian. Last year, every state school in England was provided with a King James Bible to mark its 400th anniversary and recognise the huge influence it has had on our culture, language, society and values....

The noble Lord, Lord Curry, also raised concerns about the perceived marginalisation of Christians. I am in receipt of the Christians in Parliament All-Party Parliamentary Group report setting out these concerns, and we are currently considering a response to that....

This Government believe that faith should have a seat at the table in public life.... [T]his is not a position of privilege but that of a strong contributor to the public debate.... This Government have held faith receptions at Downing Street for major festivals: Vaisakhi, Eid, Hanukkah and Diwali-and, yes, it was right that this coalition Government introduced the celebration of Easter as well.

Swartzentruber Amish Group Moving From Pennsylvania To Upstate New York

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AP reported Saturday that the 21-family congregation of Swartzentruber Amish who have lived in western Pennsylvania are moving to St. Lawrence County in upstate New York rather than continue their battles with local officials over sewage disposal codes. (See prior posting.) Land values in western Pennsylvania have been rising because of the Marcellus Shale natural gas boom.

Scotland Reports Data On Religiously Motivated Hate Crimes

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On Friday, the Scottish government released a new report, Religiously Aggravated Offending In Scotland  2011-12. The Executive Summary says in part:

There has been an increase in the number of recorded religious aggravation charges in 2011-12 compared with previous years. For this report, 876 charges with a religious aggravation reported in 2011-12 were analysed, compared with 693 charges in 2010-11. This is an increase of 26%..... [T]his increase may be partly due to increased awareness, reporting and recording of these crimes....

Although the number of football-related charges rose in the last year by 16% (from 231 to 267) the proportion went down from 33% to 31% of charges. The number of charges occurring in football stadiums also decreased from 90 (13%) to 67 (8%). This reduction in charges may in part be explained by the increased focus on football-policing and supporter conduct through the work of the Joint Action Group on Football, established in 2011.

Roman Catholicism and Protestantism were most often the religions that were the subject of abuse. The proportional spread of the religions that were targeted was similar to the previous year: 57.7% in 2010-11 and 58.1% in 2011-12 for Roman Catholicism; and 36.5% in 2010-11 and 40.3% in 2011-12 for Protestantism.

Police officers were the most common target of religiously aggravated offending, in over half (51%) of all charges.

NYT Discloses More Details On Making of Film "Innocence of Muslims"

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Today's New York Times carries a front-page article revealing new details on Nakoula Basseley Nakoula and his making of the controversial film "Innocence of Muslims." A trailer for the film sparked demonstrations around the world. (See prior posting.) According to the Times:

The making of the film is a bizarre tale of fake personas and wholesale deception. And as with almost everything touched over the years by Mr. Nakoula — a former gas station manager, bong salesman, methamphetamine ingredient supplier and convicted con man — it is almost impossible to separate fact from fabrication.

Beating a Pro Se Plaintiff is Not Always Prosaic

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Ask 100 federalprosecutors if there is any part of the job they do not like, and at least 99of them will mention responding to prisoner habeas corpus petitions. First, they are written incoherently, so it is hard figuring out what thepetitioner is asking for and on what grounds.   Then you have theobligation of explaining to the court what the prisoner wants, presuming thatthe prisoner is making the best arguments in the best possible way.  Onlythen do you get to the fun part of demolishing the arguments that you wereforced to construct.  And even then some judges bend over backwards togive the petitioner every benefit of the doubt, if only for the want of a jurisdoctor degree.  We remember not so fondly one time when a magistrate judgemade us jump through a series of ever higher hoops (including retention of anexpert witness) to prove the validity of a positive drug test showing that aprisoner who had been incarcerated for four months must have imbibed whilst instir (resulting in discipline), as opposed to before imprisonment (noadditional discipline). 

We do not often face pro se adversaries these days, but when we do theyfrequently find ways to vex us.  Right now we are dealing with a plaintiffwho has pretty much acknowledged that he has no evidence that our client'smedical device was defective in any way, yet he insists on a nuisance paymentto make him go away.  We seldom see that sort of mendacity and pettinessfrom even the most scurvy-minded plaintiff lawyers.  What's worse is thatif we do come to blows-via-pleadings with this pro se plaintiff, there is agood chance that some judge will treat that plaintiff with kid gloves.

For that reason, we do not underestimate the defendant's recent victory inOhuche v. Merck & Co., 2012 U.S. Dist. LEXIS 147483 (S.D.N.Y. Oct. 12,2012).  At the same time, the case shows how courts occasionally givebreaks to pro se plaintiffs that make no sense.  The plaintiff allegedinjuries from a Zostavax vaccine for prevention of shingles.  The labelfor Zostavax lists several possible side effects, and it is not clear what theplaintiff thinks should have been in the label that was not there.  In any event, the doctor never read the label. In any event, the doctor alreadyknew the risks.  In any event, "the medical records for Ohucheinclude notations inconsistent with her allegation that she developedshingles-like symptoms shortly after receiving the Zostavax vaccine."2012 U.S. Dist. 147483 at *7.  Easy case, right?

In the end, yes it was.   But the court (and we are talking about anexceedingly important and intelligent judge, Scheindlin) made getting there awee bit more sticky than we like, and certainly more so than wasnecessary.   Here is how the court begins the Discussionsection:  "Because plaintiff's Complaint does not state anyparticular causes of action, it must be construed to raise the strongestarguments possible." Id. at **14-15.  As Homer Simpson would say,"D'oh!".

And then the way this principle (of what?  Leniency?  Fiction?) getsapplied to the issue of medical causation is scarier than a Stephen King novel,an episode of American Horror, the prospect of a new Adam Sandler movie, orhaving to read the latest Parisian expert report.  Plaintiff Ohucheappears to have had no expert witness on medical causation.  In somecourts, that would end the case.  Moreover, the facts regarding the timingof the plaintiff's symptoms were sketchy.  Nevertheless, the court findsan issue of disputed fact on medical causation based on the existence ofmedical literature documenting that the vaccine can cause the side effects,"coupled with the allegedly close temporal proximity between the date ofthe vaccine and the onset of symptoms." Id. at *18.   DoubleD'oh!

We could wheel out scads of precedents refuting this nonsense, including theEleventh Circuit Guinn case that some of us here worked on and that we mentionat the drop of a hat or a hint of bad reasoning on Daubert and medicalcausation issues. But calm down (so we say to ourselves), because this bad biton medical causation is pure dicta.  It is unnecessary to the opinion,because the court goes on to dismiss the plaintiff's complaint for "lackof proximate causation."  Id.

New York applies the learned intermediary rule.  Thus, the issue waswhether the treating doctor was adequately warned.  The doctor testifiedthat she was aware of the adverse reactions associated with the vaccine despitenot reading the relevant literature.  The vaccine manufacturer"completely fulfilled it's obligation to disclose the risks, side effectsand contraindications associated with Zostavax." Id. at *20.  Thecourt concludes that if the plaintiff has a viable claim against anyone, it isfor malpractice against the doctor.  (Come to think of it, that is moredicta, isn't it?). The claims against Merck were dismissed.

So, in the end, it is a good result.  But because the court seemed to wantto toss a few bones to a pro se plaintiff, we experienced a side effect from anotherwise decent opinion.  In South Philly it's called agita.  Can we sue for that?

Demahy's Done

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Breaking news, sort of.  The plaintiff in the Demahy half of what was Mensing in the Supreme Court is nothing if not persistant.  Now she's just nothing.  She tried to get the Fifth Circuit to reconsider the other half of that opinion - state-law claims asserting that a branded manufacturer could be liable to her despite her using only the branded product (that is, Conte) - on the ground that Mensing preemption somehow changed Louisiana common law.  Well, today the Fifth Circuit, in an unpublished opinion (our reason for the "sort of") said "no."  Here's a link to the opinion.  The main argument rejected was that Mensing undermined the older Fourth Circuit opinion in Foster v. American Home Products Corp., 29 F.3d 165 (4th Cir. 1994 (applying Maryland law).  But it didn't:

We do not view Mensing as overruling Fosterbecause the court in Foster did not reach its holding by relying on theability of a plaintiff to sue generic manufacturers.  Instead, the court’s holding was based on itsinterpretation of Maryland law and the conclusion that a name-brandmanufacturer has no duty of care to consumers that are not using themanufacturer’s product.  The Fostercourt’s opinion in dicta on the viability of suits against genericmanufacturers was proved wrong, but this fact does not impose on name-brandmanufacturers a duty of care to customers using generic products.  Likewise, decisions that relied upon Fosterto create a similar rule in Louisiana remain valid.

Demahy, slip op. at 8.  Moreover, the court held that even if Foster were undercut, that was a Maryland law decision, and Louisiana law wouldn't allow the claims anyway.  Id. at 8-9.

The court also addressed generic preemption (yet again), but mostly on the "mandate rule" that plaintiff didn't have any other claims before - so go away, plaintiff.  Nonetheless, to cover all its bases, the court said that all the purported "other" claims were either disguised warning claims (preempted) or design claims (which are also preempted). Demahy, slip op. at 12-13 (with nice string-cite footnotes).

Stick a fork in Demahy - it's done.

Food Preemption, and Frankenstorm's Coming

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The outdoor furniture is in the garage.  So are the potted plants.  The basketball net, with its 10-foot metal pole and base full of sand, has been pulled down and laid on its side.  Dozens of candles are at the ready, and the bathtubs are filled with water.  The power goes out in this town when it drizzles, and this won’t be drizzle.  So it’s only a matter of time before we'll need those candles.  Frankenstorm is coming.  So we hope you’ll forgive us for a short post today.  It’s kind of appropriate, though, because the court’s opinion n Lateef v. Pharmavite LLC, 2012 U.S. Dist. LEXIS 152528 (N.D. Ill. Oct. 24, 2012), was very short.  It didn’t take long for the court to apply preemption.  The plaintiff was an adherent to religious dietary restrictions that prohibited her from eating pork and pork byproducts.  She bought a bottle of Vitamin D tablets whose label mentioned no animal byproducts.  The tablets, however, did contain small amounts of gelatin, which is made from byproducts of animals, including pig.  So the plaintiff sued, filing a class action complaint asserting breach of warranty, unjust enrichment and violations of Illinois’s Consumer Fraud and Deceptive Business Practices Fraud Act.  So where does the preemption come from?  Well, the FDCA was amended in 1990 by the Nutritional Labeling and Education Act (NLEA), which does just was it says.  It regulates nutrition content claims on food labels.  And it says that “incidental additives,” like the gelatin used in the Vitamin D tablets, which are present in small amounts and provide no technical or functional effect, are exempted from labeling.  Id. at *7-8.  The NLEA also contained an express preemption clause: . . .  no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce—(1) any requirement for a food which is the subject of a standard of identity established under section 341 of this title that is not identical to such standard of identity or that is not identical to the requirement of section 343(g) of this title . . . .21 U.S.C. §343-1(a)(1) (emphasis added).  That’s about as strong as statutory preemption language gets.  So strong, in fact, that the plaintiff conceded that her claims related to labeling of the gelatin were preempted.  Id. at *9.  Whew!  That was easy.  Well, sort of.  The plaintiff took a shot at saving her complaint.  She asserted that defendant stated on its website that consumers can trust it to identify every ingredient of its products.  Id. at *3-4, 8.  These statements, she claimed, were false, and claims based on them are not preempted because they had nothing to do with the label.  The argument went nowhere.  The court explained that, even though the plaintiff was now pointing to the website, her claim was still based on the fact that the defendant didn’t disclose the gelatin on its label.  Id. at *8-9.  So it was still preempted.  Moreover, the website argument had nothing to do with the plaintiff.  She never said in her complaint that she ever visited, no less than read, the website.  In other words, she had no standing to assert this claim.  Id. at *9-10.  Complaint dismissed.That was a pretty tidy decision.Things around here, on the other hand, are not looking so tidy.  The wind is whipping around now.  And the lights have blinked ominously a couple of times.  It’s on its way.  We’re going to pack up the laptop and turn our attention to Frankenstorm.  We’ll see you on the other side.

Plaintiff's Opposition to Certiorari in Bartlett: False Modesty

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We greeted the result in Bartlett v. Mutual – that a genericmanufacturer could be tagged for $21 million in a product liability case,despite Mensing, on the theory that the manufacturer had the option not to sellthe product at all – with derision and dismay.  The decision was wrong,even subversive.  It stuck a thumb in the eye of the Supreme Court’sMensing analysis and adopted a rationale that no other court has been sillyenough to embrace.  See our Mensing scorecard.  We make no bones about our preference for touting gooddefense decisions, but we certainly never pretended that Bartlett was notimportant.  It is important.  So is the Ebola virus.  And theDallas Cowboys.   

The plaintiff and her lawyer trumpeted the significance ofthe Bartlett case.  Here is what the plaintiff said after learning of the$21 million verdict: “That was my biggest thing – getting the word out. Before this happened to me, I never knew something like this could happen justfrom taking medication.”  Bartlett’s attorneys said it was the largestaward in a New Hampshire product liability case.  The largest previousaward was $13 million in a construction siteaccident.  After the First Circuit affirmed the verdict, the plaintifflawyer called the ruling “potentially huge.”  He said it established “thatMensing only affects failure to warn claims.  ‘Impossibility preemption’ –where a generic company cannot simultaneously be held liable for failure tochange a label when it has no ability to change a label – has no relation to aproduct defect case.”   

Now get a load of a couple of the headings in the Opposition to Certiorari: 

·         “The petition does not present a questionof recurring national importance.”
  
·         “Sulindac is not an essential drug, andpetitioner presented no contrary evidence.”
 
Turns out the Bartlett case was not so important afterall.  Nothing to see here, Justices, move along.   
Let’s face it, if the Supreme Court takes a look at theBartlett decision, there will be a reversal.  In fact, summary reversal isappropriate.  The plaintiff lawyer knows that.  Consequently, theOpposition to Certiorari suggests that the case is so insignificant andeccentric as to be beneath the Supreme Court’s attention. 
 
According to the plaintiff, Bartlett is unusual because itwas a product liability case with no failure to warn claim at all.  Thatsupposedly makes it different from Mensing and every other case under thesun.  The luckiest thing that ever happened to the plaintiff in Bartlettwas when the trial court dismissed the failure to warn claim.  Even so,under New Hampshire law, the warning would have been relevant in a designdefect claim insofar as a comment k analysis was in play, because the issue ofwhether a product was “unavoidably unsafe” takes into account thewarnings.  But the defendant in Bartlett explicitly waived its comment kdefense before trial, apparently because the defendant wanted to make sure thejury would not work up prejudice over the warning issue.    Theplaintiff argues that all Mensing did was preempt failure to warn claimsagainst generics.  The plaintiff also argues that while a genericmanufacturer cannot simultaneously  comply with a state duty to slap abetter warning on a drug whilst also complying with federal law that prevents generics from changing the label, it is possiblefor a generic to comply with both federal law and the state law not to sell anunreasonably dangerous product by simply not selling the product at all. 
The Opposition is desperation wrapped in modesty bundled insophistry.  We cannot improve on the Petition for Certiorari, which madeseveral points that thoroughly puncture the plaintiff’s effort to hang onto the$21 million: 
·         The federal duty of “sameness” forgenerics applies to design as much as to the warning. 
 
·         After the Supreme Court’s Mensingdecision, the Eighth Circuit in Mensing vacated its pre-remandopinion despite the plaintiff’s post-Mensing assertion that “there is nothinginconsistent with the Supreme Court’s decision about holding defendants liablefor their failure to suspend sales.”
 
·         The Sixth Circuit, in Smith v. Wyeth, Inc.,657 F.3d 420 (6^th Cir. 2011), affirmed judgment for genericmanufacturers despite plaintiffs’ post-Mensing claim that the defendants’“decision not to suspend sales and to continue selling their [generic product]is [both] actionable [and] wholly consistent with Mensing” because “no federalstatute or regulation prohibited them from ‘independently’ suspending sales oftheir product.”
 
·         Bartlett’s reasoning “blasts a gaping holein Mensing.”  Put simply, the Bartlett rationale would have produced adifferent result in Mensing.
 
               ·         The First Circuit itself in Bartlett acknowledged “tension” between itsreasoning and Mensing, and practically begged the Supreme Court to take a look. 
We would add two more points about what’s wrong withBartlett and why the Supreme Court needs to administer a fix: 
1.       Bartlett is perversely reasoned.  Itbegins its preemption analysis, not with Mensing, but with Wyeth v. Levine. The First Circuit concludes that Wyeth v. Levine established a generalno-preemption rule.  Only then does the First Circuit mention Mensing, andconstrues it as a narrow exception that does not apply here because Mensing wasa failure to warn case, not a product defect case.  Here is what is soweird about that bit of terpsichorean jurisprudence:  Wyeth v. Mensing,too, was a failure to warn case, not a design defect case.  Moreover,Mensing, like Bartlett, involved a generic manufacturer.  Wyeth v. Levinedid not.  Bartlett takes preemption through the looking glass. Pernicious nonsense reigns. 
 
2.      As we discussed in one of our many earlier postsabout Bartlett, the defendant got mightily hosed because, even after winningdismissal of the failure to warn case, and even after deciding to waive itscomment k defense just to make sure failure to warn would not sneak into thecase, the plaintiff still managed to parade the warning before the jury,despite the usual, feckless limiting instruction.   A little truthplease:  Bartlett might have been dressed as a design defect case, butlike most DDL cases it centered on failure to warn.
 We do not agree with plaintiff attorneys or Dallas Cowboyfans often, but this time we agree with the Fort Worth plaintiff lawyer whosaid that his win in Bartlett was “huge.”  No need for modesty.  Now let’s get a hugereversal.