Republicans block votes on judicial nominees

To contact us Click HERE

Breaking with Senate tradition, Republicans block votes on all judicial nominees, including twelve judicial emergencies.



Senator McConnell

In September 2008 the Senate – with a Democratic majority – approved 10 of President George W. Bush’s district court nominees by unanimous consent. So far this September, the Senate has confirmed only one of President Obama’s nominees.  Despite this imbalance, Senate Republicans continue to block consideration of more nominees. 

Just yesterday, Senate Majority Leader Harry Reid (D-NV) sought to confirm a slate of 17 federal district court nominees—almost all of whom are noncontroversial and who were reported out of the Judiciary Committee on voice votes—by unanimous consent.  Senate Minority Leader Mitch McConnell (R-KY), however, objected to the request, leaving these nominees hanging.  Senator McConnell’s action continued the type of obstructionism that has characterized Republicans’ approach to President Obama’s judicial nominees, which started with a filibuster of the President’s first nominee in 2009. 

McConnell’s objection was particularly glaring given that twelve of the seventeen district court nominees would fill judicial emergencies – districts where courts are overwhelmed by a backlog of filings and empty benches prevent Americans from getting their day in court. As Senator Casey (D-PA) noted in his floor speech, this can mean that 86-year-old judges in senior status – judges who should be enjoying their retirement – must continue working as Senate Republicans delay, obstruct, and ultimately deny justice to those waiting at the courthouse doors.

For the most up-to-date and comprehensive information on judicial nominations, visit AFJ's Judicial Selection page.

AFJ President Nan Aron on The 1 Percent Court - and what we can do about it

To contact us Click HERE
We all know how big business has eroded the American dream by getting Congress and the executive branch to change the rules to favor corporations and the wealthy at the expense of the rest of us.  But it hasn’t stopped with two branches ofgovernment.  Corporate special interests have spent decades working to puttheir thumb on the scales of justice.  The campaign finance decision in Citizens United is only the most prominent example.

But it doesn’t have to be this way.  In a special issue of The Nation, produced in cooperation with the Alliance for Justice, AFJ President Nan Aron writes about what big business has done to the cherished American value of equal justiceunder law and, most important, what we can do about it:

"Liberals who came of age in the 1960s and ’70s perceived the Supreme Court largely as a constructive force, devoted to protecting civil, environmental and consumer rights and liberties, and interpreting the Constitution as a living document relevant to a rapidly changing twentieth-century world. It was a Court worthy of respect, if notreverence.

That was then. The 1 Percent Court is now in session."

Nan's full article is available here.

More from this special issue of The Nation is available here.

What's really at stake in Kiobel v. Royal Dutch Shell

To contact us Click HERE

When the U.S. Supreme Court starts its 2012-2013 term onMonday the very first case it is scheduled to hear involves a law passed by thefirst U.S. Congress in 1789.  At that time, the Congressallowed aliens victimized by a violation of international law to seek civilredress in U.S. courts.  In this post, Professor Oona Hathaway of Yale LawSchool argues that “No Congress in the more than 200 years since has revisitedthis decision.  The Supreme Court should not do so now in a misguidedattempt to correct problems with the law that do not, in truth, exist.”

Guest Post by Professor Oona Hathaway

Kiobel plaintiffs on
February 28, 2012.
Photo via
Amnesty International USA

On the face of it, the re-argument of Kiobel v. Royal Dutch Shell is about whether the Alien Tort Statute (ATS) applies to conduct that occurs outside the geographic borders of the United States.  But behind this surface issue are two deeper concerns that are really motivating the debate—concerns that, when examined closely, turn out to be misplaced.

The first is a worry that the U.S. courts will become the courts of the world.  The U.S. is alone, the argument goes, in allowing individuals harmed by human rights abuses to sue those responsible.  Moreover, the ATS allows aliens to sue defendants that have no connection to the United States for conduct that happened outside the United States.  Clearly, then, allowing this case to proceed will open the floodgates!

Nothing could be further from the truth.  The U.S. is one of many countries—including the Netherlands, the home of Royal Dutch Shell—that provides for the enforcement of international human rights law in its courts.  Indeed, in preparing our supplemental amicus brief for re-argument, the Yale Law School Center for Global Legal Challenges gathered a large number of foreign cases, statutes, and constitutions that expressly provide for such enforcement.  The United States is in good company.

Moreover, there are a variety of doctrines that already exist to keep cases out of U.S. courts if they belong elsewhere. These include personal jurisdiction, forum non conveniens, act of state doctrine, and exhaustion.  Indeed, under personal jurisdiction doctrine, foreign defendants are subject to suit in U.S. courts only if they have sufficient contacts with the United States.  Royal Dutch Shell, which does extensive business in the United States, so clearly meets this test (as the ubiquitous Shell gas stations attest) that it did not even raise the issue below.

A second, and related, concern motivating the debate is a worry that the United States is improperly imposing U.S. law abroad.  The background presumption against extraterritorial application of U.S. law can be understood as an effort to respect the sovereignty of other states:  Foreign states should have the freedom to regulate behavior within their own geographic boundaries, hence U.S. courts should not apply U.S. law to conduct abroad unless Congress expressly so provides.  That is because doing so risks imposing distinctive U.S. law to conduct that is more appropriately regulated by the state in which the conduct occurs.

Yet this does not apply in this case or any other ATS case.  The plaintiffs are not asking the Supreme Court to apply distinctive U.S. law to conduct that occurred abroad.  They are asking U.S. courts to enforce international law—including the prohibition on torture, crimes against humanity, and extrajudicial killing—that the country in which the conduct occurred has itself accepted (if not always honored).
 
The ATS does not supply substantive rules that govern conduct abroad.  Instead it simply provides for the enforcement of existing international law norms.  International law makes clear that each state has the sovereign prerogative to do just this—to determine when and how to enforce international law. Indeed, a foundational principle of international law known as the Lotus principle provides that, in the absence of a specific prohibitive rule, “every State remains free to adopt the principles which it regards as best and most suitable.”

In 1789, the First U.S. Congress decided to allow aliens victimized by a violation of international law to seek civil redress in U.S. courts.  No Congress in the more than 200 years since has revisited this decision.  The Supreme Court should not do so now in a misguided attempt to correct problems with the law that do not, in truth, exist.


Oona A.Hathaway is the Gerard C. and Bernice Latrobe Smith Professor of InternationalLaw at Yale Law School. Professor Hathaway is the director of the Yale Law School Center for Global Legal Challenges,which filed amicus briefs on behalf of Esther Kiobel in this case. She iscurrently a committee member on the Advisory Committee on InternationalLaw for the Legal Advisor at the State Department. Professor Hathaway has also served as a law clerk for JusticeSandra Day O’Connor and lectured at Harvard Law School, UC Berkeley School ofLaw, and Boston University School of Law.  

The myth of the left-leaning Supreme Court

To contact us Click HERE

            We all know the mythology: liberal “activist judges” supposedly spent decades pushing the U.S. Supreme court to the left.  But there is graphic evidence to the contrary – specifically, the graphic above, which we first saw while watching AFJ President Nan Aron on Up with Chris Hayes last month.
            It’s based on the work of Professor Andrew Martin of Washington University School of Law in St. Louis and Professor Kevin Quinn of the University of California at Berkeley School of Law.  They’ve measured the ideological slant of the Supreme Court all the way back to 1935.  The graphic makes clear that for almost the entire period from then to now, any “activism” on the Supreme Court has been conservative activism.  (And as New Yorker writer and CNN analyst Jeffrey Toobin makes clear in his latest book, The Oath: The Obama White House and the Supreme Court, the rightward drift of the court goes back much further than 1935.)
            It’s the very bottom of the graphic that is most disturbing. It shows that the sharpest swing to the extreme right is happening right now, under the court led by Chief Justice John Roberts.
            As for “activism,” in case after case, it’s the far right on the court that has overturned precedent and rushed to rewrite law.  The notorious Citizens United decision (discussed in AFJ’s new documentary Unqeual Justice) is a case in point.  As Toobin notes, that case started out as a challenge to one narrow piece of the McCain-Feingold campaign finance law.  But by a vote of 5 to 4 the majority took advantage of the opportunity to gut the entire law, reversing a century of precedent and starting a process that led to a flood of corporate money into campaigns.
            The Martin-Quinn findings are still more evidence that, of all the decisions a president can make, his choice of judges can have the greatest impact.

Best chance yet to get the presidential candidates talking about the Supreme Court

To contact us Click HERE
Deadline to submit questions is midnight tonight 
          
           The Oct. 16presidential debate will be in a town-hall format.  But in addition to taking questions from an audiencein the room with the candidates, moderator Candy Crowley is expected to pass onsome questions from people who send them in online.

            Just click here and fill in theform before midnight tonight to send your question to the Commission on Presidential Debates.  The Commission will pass on some of them toCrowley.  As this is written nearly 1,500questions have been submitted – but only six of them even mention the SupremeCourt.
            We canchange that.  Submit questions about theSupreme Court.  You can submit thequestions we suggested in a letter AFJ sent tothe debate moderators on Oct. 1, or come up with your own.  Then vote for the questions you like aboutthe Supreme Court.
            With somany cases now decided by one vote, if the next president fills even oneSupreme Court vacancy it could change the court, and America, for decades.  The stakes are too high to leave this off thedebate agenda.                                                                                                            AND DON’T FORGET THEVICE PRESIDENTIAL CANDIDATES
            You also canhelp us try to put the Supreme Court on the agenda for the vice presidentialcandidates debate on Thursday. If either Joe Biden or Paul Ryan were to becomepresident, what kind of people would they nominate to serve on the SupremeCourt? 
            Jim Lehrerfailed to ask about this during the first presidential debate.  On Thursday it will be Martha Raddatz’sturn.  Please ask her to ask the vicepresidential candidates: What about the Supreme Court?  You can contact her at Martha.raddatz@abcnews.com ortweet her @martharaddatz 

Suspect Charged By Feds In Ohio Mosque Arson Attack

To contact us Click HERE
In Toledo, Ohio on Friday, federal officials filed charges against a 52-year old Indiana man for setting fire to the prayer room of a Toledo, Ohio mosque on Sept. 30. The Toledo Blade reports that Randy Linn was charged with one count of damage to religious property in violation of 18 USC Sec. 247, and one count of use of fire or explosives in connection with the commission of a federal felony in violation of 18 USC Sec. 844(h).  The Affidavit in Support of a Criminal Complaint (full text) filed by the FBI says that Linn is an ex-marine who reportedly has recently made anti-Muslim comments, including complaining about the international Muslim community's reaction to a controversial YouTube video and has complained about recent attacks on U.S. embassies and the death of military personnel in the Middle East. While in a police car at the time of his arrest, Linn cursed Muslims. At a press conference on Friday, Wood County, Ohio prosecutors (who dropped state charges in favor of the federal charges) called the arson an act of terrorism.

Recent Prisoner Free Exercise Cases

To contact us Click HERE
In Rodriguez v. Hubbard, 2012 U.S. Dist. LEXIS 141089 (ED CA, Sept. 28, 2012), a California federal magistrate judge permitted a Native American inmate to proceed with his free exercise and equal protection challenges (but not his RLUIPA claims) to confiscation of his sacred pipe and bag, a medicine bundle, various bird wings and feathers and spiritual necklaces, as well as denial of spiritual counseling that took place at his former prison.

In Rahman v. Fischer, 2012 U.S. Dist. LEXIS 140455 (ND NY, Sept. 28, 2012), a New York federal district court dismissed for lack of jurisdiction an attempt by Shiite inmates to enforce a settlement in an earlier case in a different federal court. It dismissed, but with with leave to amend, plaintiff's complaint regarding denial of Shiite study classes, books and a locker to store Shiite religious texts.

In Wright v. Hedgepeth, 2012 U.S. Dist. LEXIS 142035 (ND CA, Sept. 30, 2012), a California federal district court allowed a Muslim inmate to proceed with complaints regarding a religious diet and denial of attendance at various religious services. Plaintiff contends that part of the reason for the problem is prison officials' reliance upon inaccurate information about Muslim religious requirements provided by the Muslim chaplain who practices a different, non-traditional version of Islam. The court referred the case to the Pro Se Prisoner Settlement Program.

In Womble v. Berghuis, 2012 U.S. Dist. LEXIS 142704 (WD MI, Oct. 3, 2012), a Michigan federal district court dismissed a number of defendants, but allowed a Buddhist inmate to proceed against two others on claims that he was wrongly removed from the vegan food line for a period of 4 months.

In Clark v. Florida, 2012 U.S. Dist. LEXIS 142423 (MD FL, Oct. 2, 2012), a Florida federal district court dismissed an inmate's claim that he was placed in confinement and stripped of his clothing due to his talking in tongues, which he believes is a sign of his "supernatural" spiritual powers.

In Parms v. Harlow, 2012 U.S. Dist. LEXIS 142382 (WD PA, Oct. 2, 2012), a Pennsylvania federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 142381, Sept. 11, 2012) and dismissed a deaf inmate's claim that his free exercise rights were violated when prison authorities refused to provide him an interpreter so he could understand religious services.

In Jihad v. Fabian, 2012 U.S. Dist. LEXIS 141272 (D MN, Oct. 1, 2012), a Minnesota federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 142519, Sept. 7, 2012) and dismissed a Muslim inmate's claim that prison authorities have failed to comply with a settlement agreement in an earlier case involving plaintiff's access to halal meals. The court held the enforcement of the agreement is a matter for state courts.

In Miller v. County of Nassau, 2012 U.S. Dist. LEXIS 143267 (ED NY, Oct. 3, 2012), a New York federal district court dismissed, with leave to amend, a claim that prison authorities favor favor the Catholic, Jewish, Protestant and Muslim religions over others such as Rastafarian, Santeria, and Native American religions.

In Davis v. Abercrombie, 2012 U.S. Dist. LEXIS 141568 (D HI, Sept. 30, 2012), an Hawaii federal district court refused to issue a preliminary injunction in a suit by two inmates who were practitioners of the Native Hawaiian religion, one of whose prayer object was confiscated and the other whose prayer object was damaged.

In Williams v. Bedsole, 2012 U.S. Dist. LEXIS 143148 (MD AL, Sept. 6, 2012), an Alabama federal magistrate judge recommended dismissing, on the basis of qualified immunity, an inmate's complaint that his religious freedom was infringed when, as part of his participation in the Crime Bill Program, he was forced to stand and face the flag during the Pledge of Allegiance.

In Palermo v. White, 2012 U.S. Dist. LEXIS 142515 (D NH, Sept. 4, 2012), a New Hampshire federal magistrate judge recommended allowing an inmate to move ahead with his complaint that the prison chaplain refused to recognize his pagan religion or provide him with a book, religious items or space to practice his religion.