• October 12, 2015
    Guest Post

    by Russell Wheeler, Visiting Fellow, Governance Studies, Brookings

    Federal courts are facing a toxic mix of judges creating vacancies at an usually high rate and some Republican senators exploiting Senate traditions to prevent nominations in their states. And the Senate Judiciary Committee and Republican Conference leadership have aggressively slowed down confirmation of those nominations that make it to the Senate.*

    The net effect is a sharp increase in vacant judgeships, putting additional strains on sitting judges, including those who have earned a right to a reduced workload. It mainly affects civil litigants, including small businesses, because of criminal cases’ statutory priority. In the final two years of the Reagan, Clinton and Bush two-term presidencies -- all with divided government -- vacancies decreased. That seems highly unlikely in these final two years of the Obama presidency.

    The October 5 confirmation of a district judge reawakened complaints that seven confirmations in 2015 compare poorly to the 33 confirmations at the same point in 2007, George W. Bush’s seventh year in office.

    In response, majority members of the Senate Judiciary Committee have said that the Senate, over the six-plus years of the Obama administration, has confirmed more judges than in the comparable period of the Bush administration.

    That’s true -- as of October 5, 310 Obama confirmations versus 265 Bush confirmations.

    They’ve also complained, as did Senator John Cornyn on the Senate floor on September 17 (repeating almost verbatim a July 30 floor statement by Judiciary Committee Chair Charles Grassley), that Senate Democrats confirmed 11 judges “at the end of last year.” (Actually, it was 12, on December 16, and most were unanimous.)

    Leaving 11 nominations for confirmation in 2015, said Cornyn, would have put the Senate “roughly . . . on pace for judicial nominations this year compared to 2007.”

    That’s only true with a tortured definition of “roughly on pace.” Eighteen is not “roughly” the same as 33. And those 33 2007confirmations represent a 13.0 percent increase over the number on January 1, 2007.  Even moving 11 confirmations from 2014 to 2015 would have produced only a 9.9 percent increase over the January 1, 2015, number.

    More important, though, neither claim is particularly relevant. The ultimate purpose of the confirmation process is to fill vacant judgeships, not to create comparative confirmation scorecards.

  • October 9, 2015
    Guest Post

    by Chris Edelson, assistant professor of government, American University School of Public Affairs. Edelson is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press. His second book, Power Without Constraint: The Post 9/11 Presidency and National Security, will be published next year by the University of Wisconsin Press.

    Sen. John McCain said of waterboarding that “it is not a complicated procedure. It is torture.” Experts, including those who have experienced waterboarding, agree. Waterboarding is sometimes incorrectly described as “simulated” drowning. In fact, “[t]here is no way to simulate the lungs filling with fluid, and the victim does not need to be convinced physiologically. The [person being waterboarded is] in the process of drowning.” Those who have experienced waterboarding describe it as “controlled death.” The United States has prosecuted both Americans and members of foreign militaries for waterboarding prisoners.

    The Bush administration relied on implausible statutory definitions and dangerous theories of unrestrained executive power to conclude that it could authorize waterboarding. Since waterboarding is torture, it is a crime, and waterboarding (since it is torture) cannot be justified by emergency. Apart from the fact that it is illegal, there is no evidence that waterboarding produces reliable intelligence. Some who are waterboarded simply tell their interrogators anything they think will get the waterboarding to stop. A Senate report concluded that Khalid Sheikh Muhammed provided fabricated information after being subjected to waterboarding and other interrogation methods.

    To his credit, President Obama has rejected waterboarding, correctly identifying it as torture. He issued an executive order in 2009 that would rule out interrogation methods not authorized by and listed in the Army Field Manual (the manual specifically prohibits waterboarding). However, his administration has not prosecuted anyone for authorizing or carrying out waterboarding.

  • October 9, 2015
    Guest Post

    by Deuel Ross, Fried Frank Fellow, NAACP Legal Defense and Educational Fund, Inc.

    On Friday, the NAACP Legal Defense and Educational Fund, Inc. (LDF), on behalf of our allies at Greater Birmingham Ministries and the Alabama NAACP, wrote a letter to the state of Alabama about its decision to close 31 of its Department of Public Safety (DPS) driver’s license-issuing offices. The state’s decision shuttered DPS offices in eleven rural counties: Choctaw, Sumter, Hale, Greene, Perry, Wilcox, Lowndes, Butler, Crenshaw, Macon, and Bullock. These eleven counties make up most of Alabama’s “Black Belt”—a region with large concentrations of African Americans, incredibly high poverty rates, and almost no public transportation.

    In our letter, LDF noted that there is a strong likelihood that Alabama’s actions violate the protections provided by the Voting Rights Act of 1965 and the United States Constitution. But what do driver’s license offices have to do with voting? A lot, actually.

    In 2014, Alabama began enforcing a strict photo ID law which requires voters to show a driver’s license or another form of photo ID in order to cast a ballot. Alabama did so despite the state’s own analysis, which found that at least  250,000 registered voters don’t have a driver’s license or other acceptable photo ID. One such voter was Willie Mims, a 93-year-old African American who was turned away from his usual polling place because he did not have a driver’s license. African Americans like Mr. Mims very likely account for a disproportionate share of those thousands of voters that the photo ID law may disenfranchise. In addition, the federal National Voter Registration Act requires Alabama’s DPS offices to provide voters with opportunities to register to vote. Alabama recently agreed to adopt measures designed to increase such opportunities for voter registration.

    In light of the close relationship between voting and driver’s license offices, and despite Alabama officials’ half-hearted denials, these closures will drastically reduce the number of locations where African-American voters can go to ensure their unfettered access to the ballot. These closings in the poorest, most rural parts of the state’s African-American community smack of the cavalier racism of the Jim Crow era and open yet another chapter in Alabama’s long and egregious history of suppressing the African-American vote.

  • October 8, 2015

    by Paul Guequierre

    As the political right, including many Republican members of  Congress, continue an  attack on women’s healthcare in the form of ongoing  assaults on Planned Parenthood, American Constitution Society President Caroline Fredrickson testified today before the House Judiciary Committee in its second hearing in a series misleadingly titled, “Planned Parenthood Exposed: Examining Abortion Procedures and Medical Ethics at the Nation’s Largest Abortion Provider." 

    In her testimony, Fredrickson said:

    In reality, these videos are not about alleged illegal sales of fetal tissue. They are not about alleged violations of the Partial Birth Abortion Ban. They are about a persistent campaign by a small group of people who believe that abortion should be illegal, by any means necessary.

    But the truth is that abortion is an essential component of women’s health care.’ It is also one of the safest medical procedures performed in the United States. And three in ten women in the U.S. will have a safe, legal abortion during her lifetime. Women and their doctors clearly understand that abortion is a safe, legal, and essential part of women’s health care. Women who seek access to abortion, like any patient seeking access to essential health care, are entitled to “privacy, dignity, respect, and support.”  Elected officials should listen to what women and their doctors already know – sham laws and baseless investigations that serve only to burden a woman’s right to choose have no place in our nation’s statehouses.

    Fredrickson’s testimony can be read here. See video of entire hearing from C-SPAN.

  • October 8, 2015
    Guest Post

    by J. Paul Oetken, U.S. District Judge for the Southern District of New York

    Judge Richard D. Cudahy, who served for 36 years on the United States Court of Appeals for the Seventh Circuit, died last month at the age of 89. He was beloved by his family and friends, his colleagues, and his many law clerks. He was also admired as a brilliant and influential jurist whose opinions shaped the development of the law in myriad ways.

    I served as one of Judge Cudahy’s law clerks from 1991 to 1992, and that year was one of the most rewarding and interesting of my career. The judge was not only a kind and generous boss; he was also a great teacher and mentor. We discussed every case in detail, and through that process I gained great insight into how he thought about law and justice.

    Judge Cudahy’s approach to the law was humanistic and pragmatic; he was neither formalistic nor result-oriented. He cared deeply about the judicial craft, taking great care to write opinions that were well-reasoned and principled, while always being particularly sensitive to how legal doctrine affects people’s lives. His sense of fairness and even-handedness pervaded his evaluation of every case, regardless of the background of the litigants involved.  In a prisoner’s appeal in a civil rights case, Judge Cudahy wrote (in response to a colleague’s economic analysis):  “Since the financial net worth of most prisoners is zero and their economic value while incarcerated perhaps less than zero, it is not surprising that efforts to take them seriously as human beings are sometimes scorned. They are not all Jean Valjean, but they are people.”

    The judge was modest as a jurist, just as he was modest as a person. He did not pretend that an outcome was obvious when it was not, nor did he construct fancy theories to dictate results of cases.  He was an honest judge who practiced his craft straightforwardly.

    He was also extraordinarily hard-working and well-prepared. Every night he would carry a heavy stack of briefs home with him.  When we discussed our cases, he had always read the briefs thoroughly and had his own views (and questions) about each of the issues presented.  He had high standards for his written opinions, going over drafts repeatedly until he was satisfied that an opinion was right, both in its result and in its explanation.