• October 13, 2015

    by Jim Thompson

    David R. Dow at Hamilton and Griffin on Rights discusses three death penalty cases before the Supreme Court this term and explains why the Court is unlikely to take a strong stance against capital punishment.

    In The Guardian, Spencer Ackerman reports that the American Civil Liberties Union has filed a lawsuit against two psychologists who convinced the CIA to subject terror subjects to callous torture programs.

    In The New York Times, Richard Fausset explains how a Georgia district attorney won indictments against 15 members of a Confederate flag-supporting group using an unusual legal maneuver.

    Ari Berman at The Nation urges states to follow California’s lead on the expansion of voting rights ahead of the 2016 election.

  • October 13, 2015
    Guest Post

    by Saul Cornell, Paul and Diane Guenther Chair in American History, Fordham University

    It is hardly surprising to find amicus briefs by both gun rights groups and gun violence prevention groups in a major gun related case such as Wrenn v. District of Columbia. The issue in Wrenn, the scope of the right to travel armed in public, is one of the hottest being litigated since the Supreme Court decided District of Columbia v. Heller, its controversial five-to-four gun rights decision. If the broad amicus interest in the case is to be expected, there is at least one surprising—and sneaky—aspect of the strategy pursued by one of the amici: the National Rifle Association. In Wrenn, the NRA has essentially taken an end-run around the word limits on amicus briefs by submitting two briefs—one under its own name and another by a group of gun rights advocates with close ties to the NRA, which the NRA represents as a scholarly brief by historians. Even more troubling is the attempt by one of the latter brief’s signers, David Kopel, a long time gun rights and libertarian activist to trumpet their brief on The Volokh Conspiracy, a widely read libertarian law blog that is now hosted by The Washington Post.

    The NRA “historians'” brief was submitted on behalf of a gun-rights foundation in California and five individuals, only two of whom have PhD’s in history or a related discipline. One of those, Joyce Lee Malcolm, holds an NRA-funded chair at George Mason law school. It is the only chair I can think of which seems to carry an ideological litmus test for its holder. The other full time scholar on the brief, Robert Cottrol, is one of the trustees of the NRA’s Civil Rights Defense Fund.

    The mere fact that one takes funding from a source with a particular ideological or policy agenda does not, of course, necessarily discredit the actual research produced with those funds.  That must ultimately be judged on its own merits. (Full disclosure:  About a decade ago I received a grant from a foundation interested in gun control, although my research challenged the prevailing  collective rights theory of the Second Amendment then supported by the foundation.) And none of this would matter in the end if the facts presented in the NRA historians' brief were accurate and the arguments it made historically plausible. Unfortunately, neither of these turns out to be the case.

  • 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 confirmations in 2007 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.