Despite some perceptions to the contrary, women lag in leadership roles across an array of sectors, writes Marie Wilson for The Washington Post's On Leadership page.

Wilson, founder and president of the nonprofit advocacy group, The White House Project, notes a new report from the group showing, "The majority of Americans are comfortable with women leading in all sectors, but the reality is women hold only 18% of leadership positions across the 10 sectors we examined, including politics, business, law, sports, academia, journalism, religion, film/TV, nonprofit, and military."

The group's study, "Benchmarking Women's Leadership," found that women are in fact losing ground in several fields, such as politics. Wilson writes, that in the last decade woman have fallen behind "as elected statewide executive officials and have made only incremental gains in Congress, where they currently comprise only 17% of leadership."

In the nonprofit sector, Wilson notes the study found women underrepresented in leadership positions and that their pay continues to be less than their male counterparts.

"Women comprise 75% of nonprofit employees, but hold only 26% of leadership positions," Wilson states. "Women nonprofit CEO's make only 74% of what their male counterparts earn." Moreover, the study found, that "women - and particularly women of color - are far from achieving parity in the arenas in which their participation and inclusion matters most: positions of leadership."

Wilson, a longtime advocate for equality, in part, concludes:

I have been an advocate for women's issues for over 30 years. From the feminist and civil rights movements of the 1960s and 70s to today's ‘post-modern' struggles for equality, I have learned three important things: increasing numbers and changing culture are not mutually exclusive but mutually reinforcing vehicles; action must be taken from the top down and the bottom up; and instituting change cannot be limited to one sector, but must be tackled in every sphere.

The White House Project's entire study is available here. 

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The National Voter Registration Act (NVRA) has sputtered in removing hurdles to voter registration and the Obama administration and state election officials must renew their efforts to bolster the law, writes Estelle Rogers in an Issue Brief released by ACS.

Congress passed the NVRA, in part, to increase voter registration and to prod government to encourage voting. When it was enacted, the NVRA was "heralded as a landmark law that would usher in a new era of universal or nearly universal, enfranchisement and political participation," Rogers states in "The National Voter Registration Act: Fifteen Years On."

But Rogers, the consulting attorney at Project Vote, maintains that while the law has produced some successes, it is hobbled by poor implementation and execution of some its key provisions.

Rogers writes:

Without question, the least successful provision of the NVRA is the requirement that social service agencies and offices serving the disabled provide voter registration services similarly to motor vehicle offices. While this requirement was a promising way of reaching out to citizens who didn't interact with DMVs, such as those too impoverished to drive or own cars, the reality has not measured up to the promise. This disappointing track record is due to widespread non-compliance with the mandates of Section 7 and a failure of enforcement by the Department of Justice, particularly in recent years, not with any lack of clarity in the statute itself.

Section 8 of the NVRA states, "Each state shall insure that any eligible applicant is registered to vote ... and conduct a general program that makes a reasonable effort to remove the names of ineligible voters." But Rogers, says that provision has also been hampered by officials.

"The registration administration provisions of Section 8 are, for the most part, drafted clearly but nevertheless have been widely ignored," she writes. "Significantly increased awareness and enforcement of these provisions is necessary to fulfill the potential of Section 8."

Federal and state officials' leadership is needed to improve the NVRA, Rogers maintains. The Justice Department, in particular, must "provide much needed guidance and enforcement of sections 7 and 8." And state election officials, she writes, must aggressively approach "their responsibilities under the NVRA." For example, Rogers says that states' top election officials should ensure that election administrators "do not impose unreasonable restrictions on registration drives, and that motor vehicle, disability, and social service agencies consistently fulfill their duties under NVRA."

Download a pdf version of Rogers' Issue Brief here and for additional analysis of the law, see her ACS guest blog here. 

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Writing for The Root, Professor Sherrilyn Ifill takes issue with an op-ed by Judge J. Harvie Wilkinson III, published in The Washington Post earlier this year. Ifill, a University of Maryland law school professor, describes the piece as "a stunning breach of manners and an embarrassing display of unwarranted hysteria about what Wilkinson described as rumors of a political 'takeover' of the 4th Circuit."

In his piece, Judge Wilkinson, former chief judge of the U.S. Court of Appeals for the Fourth Circuit, wrote that "the U.S. Court of Appeals for the 4th Circuit is set for a takeover," at the hands of President Obama. 

"Popular commentary has it that the court, on which I serve, is a fortress or bastion or citadel of conservatism," Wilkinson stated. "Discussion of coming changes suggests more the fruits of a successful military campaign than the result of an election giving our new president the right to nominate members to a judicial body."

Ifill replies: 

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By David Cole, Professor of Law, Georgetown University Law Center

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What should a lawyer do when asked if it's legal to slam suspects into walls, strip them naked, deprive them of sleep for eleven days straight, force them into cramped stress positions and small dark boxes for hours on end, and waterboard them until they fear they are drowning? The answer should be obvious. Such conduct is flatly forbidden - by US and international law. It is cruel. It is inhumane. It is degrading. And it is torture.

When lawyers in the Bush administration's Justice Department were asked that question, however, they said yes. And they continued to say yes, in secret, even as the law developed in public to confirm the absolute illegality of such conduct. Instead of requiring the CIA to conform its conduct to the dictates of law, the lawyers became accomplices to torture, twisting the law to facilitate abuse.

How did they do so? For years, we could only speculate - all but two of the memos on the issue were secret, including all the memos that discussed the CIA's tactics in any way whatsoever. Thanks to a lawsuit by the ACLU and a more forthcoming approach by the Obama administration, we can now see just how lawyers in the Justice Department's Office of Legal Counsel rationalized the unthinkable. The documents I have reproduced in The Torture Memos are the "smoking gun" in the United States' descent into torture. They allow readers to see, first-hand, how law -- and lawyers -- failed.

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By a vote of 59-39, the Senate confirmed President Obama's first judicial nominee to the U.S. Court of Appeals for the Seventh Circuit this evening. Judge David Hamilton's nomination proceeded past a threatened filibuster earlier this week when the Senate voted for cloture 70-29.

Details of the confirmation vote are available here.

Other nominees also progressed in the Senate today. The Judiciary Committee forwarded two nominations for consideration of the full Senate: Jane Branstetter Stranch to the U.S. Court of Appeals for the Sixth Circuit, by a vote of 15-4; and Judge Christina Reiss for the District of Vermont, on a voice vote.

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Does your employer have access to your personal e-mail accounts if they are accessed at work? The answer was once, almost uniformly, "yes."

The Wall Street Journal reports: 

In past years, courts showed sympathy for corporations that monitored personal email accounts accessed over corporate computer networks. Generally, judges treated corporate computers, and anything on them, as company property.
Now, courts are increasingly taking into account whether employers have explicitly described how email is monitored to their employees.

Recent decisions cited by the Journal include cases in New Jersey and San Francisco resolved in favor of employees, who were determined to have a reasonable expectation of privacy. The San Francisco decision is being appealed to the Supreme Court.

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Lawmakers are increasingly pushing back against the Supreme Court's conservative majority, which has issued a string of recent decisions that limit Congress' power, writes Simon Lazarus for Roll Call. Lazarus, public policy counsel for the National Senior Citizens Law Center, says that a growing group of congressional leaders has "caught on to the court's bellicosity, increasingly audible since Bush nominees John Roberts and Samuel Alito replaced the mellower Rehnquist and more centrist Sandra Day O'Connor."

Lazarus examines several high court rulings that "slight Congress' intent, constrain its authority, hamper its capacity to legislate, and undermine its ability to ensure that laws are effectively enforced." For example, earlier this year, the Supreme Court ruled 5-4 in Ashcroft v. Iqbal that judges have much greater discretion to quickly dismiss lawsuits. Lazarus says that the Iqbal majority "instructed trial judges to dismiss cases outright unless plaintiffs come to court pre-armed with ‘plausible' evidence of a defendant's liability."

But Congress, Lazarus maintains, is fighting back by advancing legislation that will roll back some the high court's recent actions. Indeed, Sen. Arlen Specter already introduced a bill to restore pleading standards.

Lazarus concludes that it is time Congress responds:

These disparate, often below-the-radar actions by the court threaten Congress' capacity to perform its constitutional role. The recent flurry of court-targeting actions on Capitol Hill could augur that a historic fight has at last been joined.

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Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit ruled that a gay public defender must be compensated for the health insurance denied to his partner under the Defense of Marriage Act (DOMA).

The San Francisco Chronicle reports: 

[Judge Reinhardt] said the 1996 federal law, the Defense of Marriage Act, violates the court's anti-discrimination rules for court-supervised employees. It also deprives them of their constitutional right of equal protection by denying benefits based on their gender and sexual orientation, Reinhardt said.

Reinhardt issued the ruling as head of the court's committee for resolving personnel disputes concerning public defenders. The decision thus bears no precedential value.

Reinhardt, the court's "liberal lion," is not alone in ruling for personnel challenging DOMA. The more conservative Chief Judge Alex Kozinski has also sided with court employees seeking benefits for same-sex partners.

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By Maj. (Ret.) Eric Montalvo, Esq., Senior Litigation Counsel at Tully Rinckey PLLC in Washington, D.C. and former Marine Corps Judge Advocate (JAG). Eric currently specializes in national security law and military law. He is noteworthy for his work in securing the release of Mohammad Jawad, one of the youngest Guantanamo Bay detainees.

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On November 5, 2009 U.S. Army Major Nidal Malik Hasan by all accounts shot and killed 12 soldiers and 1 civilian aboard Fort Hood, Texas. On November 10, 2009, President Obama (also the Commander-in-Chief) proclaimed the following at a memorial service held at Fort Hood:

It may be hard to comprehend the twisted logic that led to this tragedy but this much we do know - no faith justifies these murderous and craven acts; no just and loving God looks upon them with favor ... for what he has done, we know that the killer will be met with justice - in this world, and the next. [Emphasis added.]

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What is the "fifth category" of Guantanamo detainees? And where will they end up?

This statement from the office of Senator Russ Feingold, in response to President Obama's May 21, 2009 national security speech, is helpful in answering the first question:

The president was ... correct in noting the difficulties in figuring out what to do with the approximately 240 detainees still held at Guantanamo. [1] Some of those detainees, he said, can be tried in our federal courts for violations of federal law. [2]  Others will be tried in reconstituted military commissions for violations of the laws of war. [3]  A third category of detainees have been ordered released by the courts. [4] A fourth category the administration believes can be transferred safely to other countries.

Finally, [5] there is a fifth category of detainees that the president said cannot be tried in the federal courts or military commissions, but the government believes they are too dangerous to release or transfer. For this small group of detainees, the president said he is considering a new regime of what he called ‘prolonged detention,' accompanied by procedural safeguards and the involvement and oversight of both the judicial and legislative branches of our government. [Emphasis added.]

The Atlantic's Marc Ambinder highlighted this portion of a story in The Washington Post this morning: 

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Today, before the Senate Judiciary Committee, Attorney General Eric Holder testified on several recent Justice Department developments. Two hot-button issues stole the show, though: domestic prosecutions of international terror suspects and the Office of Professional Responsibility (OPR) report on alleged ethics violations by Bush administration attorneys.

"We need not cower in the face of this enemy," the attorney general said in response to critics of prosecuting terror suspects in federal court. "Our institutions are strong, our infrastructure
is sturdy, our resolve is firm, and our people are ready."

"I'm not scared of what Khalid Sheikh Mohammed has to say at trial, and no one else has to be afraid either," Holder told the committee.

Holder's testimony gave senators the first opportunity to question him since the announcement that Khalid Shaikh Mohammed and other Guantanamo detainees will be tried in federal court. Those critical of the decision included Senator Lindsay Graham and Ranking Member Jeff Sessions, who said that he feared that the passage of time since 9/11 had "dulled the memories" of some Americans.

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By Mark Greenbaum, a political writer and attorney in Washington, D.C. Email him at MarkGreenbaum@gmail.com

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As we near the end of President Barack Obama's first year in office, now is a good time to take stock of his judicial nominations. Of late, this has been an issue of consternation for Democrats who are concerned both that the President has been too slow in making nominations and that Senate Republicans are obstructing confirmations.

In order to get a better view of the matter, it is valuable to compare how nominations have been handled this year with how the process went in 2001, President George W. Bush's first year in office.

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Today, the Senate voted for cloture 70-29 on the nomination of Judge David Hamilton to the U.S. Court of Appeals to the Seventh Circuit. Senator Jeff Sessions (pictured at right -- click to zoom) attempted unsuccessfully to lead a filibuster Hamilton, a federal district judge. 

Earlier today, The Washington Post published an editorial entitled "Giving Hypocrisy a Bad Name," saying, "We hope that Republicans in large numbers heed Mr. Lugar's words of praise for Judge Hamilton's record, intellect and character and allow a vote -- and then vote in favor of confirmation."

"In this instance, a vote for Judge Hamilton will be a vote to restore much needed comity and integrity to the process -- qualities that the next Republican president will greatly appreciate when his nominees are considered," observes The Post.

At Huffington Post, Sam Stein turns up a document from November, 2003, when President Bush was selecting the newest members of the federal judiciary, that offers further evidence of conservatives' change in approach. Stein highlights a white paper arguing that judicial filibusters are unconsitutional. The paper is produced by the Federalist Society, who Stein describes as "the crown jewel of the conservative legal movement."

The 16-page document, which is still available on the Federalist Society's website, concludes:

For more than two centuries, an unwritten Senate rule against the filibustering of judicial nominees has reinforced the constitutional design of the judicial confirmation process. The recent break with this longstanding tradition has set a worrisome precedent that raises serious constitutional questions. By intruding upon the power constitutionally vested in the President to nominate and appoint federal judges, and upon the power of the Senate majority to consent to the President's nominees, judicial filibusters pose a unique threat both to the separation of powers and to the independence of the federal judiciary.

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Next year the Supreme Court will hear oral argument in two cases challenging provisions of the USA PATRIOT ACT as constitutionally suspect. Today, the Center for Constitutional Rights (CCR) filed a brief in one of the cases, Holder v. Humanitarian Law Project, arguing that the provision barring "material support" is too broad, vague and thus violates the Constitution's First Amendment.

In a press statement about its brief, CCR cooperating attorney David Cole said, "This statute is so sweeping that it treats human rights advocates as criminal terrorists, and threatens them with 15 years in prison for advocating nonviolent means to resolve disputes. In our view, the First Amendment does not permit the government to make advocating human rights or other lawful, peaceable activity a crime simply because it is done for the benefit of, or in conjunction with, a group the Secretary of State has blacklisted."

The CCR's statement also notes, "The lower courts held unconstitutionally vague the law's prohibition on the provision of ‘services,' ‘expert advice or assistance,' and ‘training,' reasoning that these terms could easily encompass a wide range of lawful speech, such as providing training in international law. The Obama administration sought Supreme Court review of that decision."

In analysis of both cases, SCOTUSblog's Lyle Denniston writes that the groups and individuals involved in the cases -- the other being Humanitarian Law Project, et al., v. Holder -- are attempting to work with organizations that are on the U.S. list of terrorist organizations. "They are," Denniston writes, "the Kurdistan Workers'; Party and the Liberation Tigers of Tamil Eelam. Those two groups, the brief said, ‘engage in a wide range of lawful, nonviolent activity,' and the groups and individuals in the case ‘seek to further only such activity.'"

Ahilan T. Arulanantham, an attorney for the ACLU of Southern California, says that a frequently overlooked consequence of the "material support" provision of the Patriot Act is its effect on the rendering of humanitarian aid in certain parts of the world. 

In an Issue Brief released by ACS, Arulanantham maintains:

The current material support statute, with its limited exceptions and extremely broad intent requirement, leads to truly irrational results. A humanitarian organization may send medicine to perform dialysis, but risks prosecution if it also seeks to send either the doctor or the equipment needed to perform the dialysis itself. Surely we do not enhance our nation's security by enacting statutes that lead to such absurd, and cruel, results.

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Melvin I. Urofsky, author of Louis D. Brandeis: A Life, talked with ACSblog before a recent ACS event exploring Brandeis' influence on privacy rights. Urofsky, a professor of law and public policy at Virginia Commonwealth University, noted that Brandeis is "on almost everyone's list of the top three justices in our history" and that Brandeis helped advance an expansive notion of privacy, including "a place where one expects privacy, in one's home, one's car and someplace else." Watch the entire interview below or download a podcast of it here. Urofsky also recently provided ACSblog with a guest post on his Brandeis biography.

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