December 2009

  • December 31, 2009

    The Senate recently confirmed "roughly three dozen" of the Obama administration's nominees, but left dozens more languishing, The Washington Post reported. Regarding nominations to the federal bench, The Post noted that the Senate has confirmed "just 13 judges, including Supreme Court Justice Sonia Sotomayor." The newspaper continued, "Nineteen judicial nominations are pending in the Senate with four referred to lawmakers last week."

    In a Dec. 23 press statement, Senate Judiciary Chairman Patrick Leahy blasted conservatives for slowing the nomination process. Leahy said:

    I have been calling on the Republican leadership to end the delays and obstruction of judicial nominations and join with us to make progress in filling some of the many vacancies on Federal circuit and district courts. I have done so repeatedly for most of the year, and several times over this last month. Regrettably, as we head into the winter recess and the end of the first session of the 111th Congress, Republican obstruction is setting a new low for the Senate in our consideration of judicial nominations.

    The Posted noted, however, that despite opposition on "some judicial picks, the Obama administration has nominated far fewer judges in its first year than did the administrations of George W. Bush and Bill Clinton."

    The San Francisco Chronicle reported on the embattled nominations of Magistrate Judge Edward Chen (right) for a federal judgeship in California and Dawn Johnsen to head the Office of Legal Counsel (OLC). The Chronicle stated that both nominations were sent back to the administration for reconsideration. 

    Sen. Dianne Feinstein told the Chronicle that she hoped the administration would renominate Chen, saying he has a "pristine record" as a magistrate judge.

    Opposition to Johnsen, an Indiana University law school professor and former member of the ACS Board of Directors, has been especially protracted, and, in part, has targeted her critique of the OLC during the Bush administration. Attorney General Eric Holder, on numerous occasions, has expressed strong support for Johnsen's nomination.

  • December 30, 2009
    Paul M. Smith, a longtime Supreme Court litigator and counsel for the plaintiffs in the landmark Supreme Court case, Lawrence v. Texas, recently talked with the American Constitution Society of Yale Law School about LGBT equal rights advancements, and setbacks. Smith, partner at Jenner & Block LLP and former chair of the ACS Board of Directors, told the Yale Law School chapter that the advancement for equality has been decidedly mixed, but there remained ample room for optimism.

    He noted the referenda setbacks in California and Maine, but added, "We have marriage equality in five states, and the flood tide is still running very strongly in the direction of equality. "

    "And so I'm very optimistic," Smith continued, "that in the next few years we will continue to make tremendous strides."

    Smith also said that advocates for equality should push lawmakers to advance equal rights. "If anything," Smith added, "pressure should be ratcheted up. It [reform] needs to happen." See video of Smith's entire interview here or download it here. The interview followed a recent ACS Yale Law School chapter event, featuring Smith. 

  • December 29, 2009
    Wired's David Kravets notes a "landmark" federal court decision of last week that a string of torrent Web sites are unlawful, allowing for massive copyright infringements. Wired said the Dec. 21 decision, while not unexpected, is "the first in the United in which a federal judge found that" torrent or BitTorrent Web search engines are "an unlawful avenue to free movies, music, videogames and software."

    The lawsuit was lodged by Motion Picture Association of America (MPAA), and resulted in a summary judgment ruling against,, and, all owned by Gary Fung. The plaintiffs, U.S. District Judge Stephen V. Wilson wrote, "asserted that, through his operation and promotion of the websites, Fung allows users to download infringing copies of popular movies, television shows, sound recordings, software programs, video games, and other copyrighted content free of charge. "

    Judge Wilson dismissed Fung's arguments that his sites were distinguishable from other file-sharing sites that have been shuttered for copyright infringements, such as Napster.

    The judge wrote in Columbia Pictures Industries, Inc., et al., v. Fung:

    These technological details are, at their core, indistinguishable from previous technologies. In fact, Defendants' technologies appear to improve upon the previous technologies by permitting faster downloads are large files such as movies. Such an improvement quite obviously increases the potential for copyright infringement.

    Fung told Wired that he was considering an appeal, maintaining that provisions in copyright law should protect Torrent sites that remove content when requested by rights-holders.

    [Image via the Law Office of Lisa N. Kaufman.]

  • December 28, 2009
    Guest Post

    By Derek M. Duarte. Mr. Duarte is a practicing attorney at the McNamara Law Firm in California. He also serves on the advisory board for the New Leaders Council, a training program for future progressive leaders.

    As Americans, we often revel in the strengths and virtues of our democratic system. True, we often revile the politicians, their many antics, and the political penumbra that surrounds our nation's capitol, but we take great pride in our democratic system and its carefully constructed balance of power created by the foresight of our founding fathers. We've often called our democracy our greatest export. We've fought wars to bring it to other countries. We believe it is the highest state of enlightened political evolution.

    And to a certain extent we are correct. But our pride makes us believe our democracy is some indestructible concept that will continue to function for all eternity by virtue of its initial ingenuity. Unfortunately, we fail to recognize one critical ingredient that has been a constant necessity for the continuity of our democratic system: Respect. Respect for our democracy. The history of our Constitution is a cornucopia of political conflict incensed by deeply emotional commitment to juxtaposed moral values - slavery, civil rights, and abortion, just to name a few. Nevertheless, our democracy endured these nation-splitting conflicts because the players involved knew that the foundations of our democracy were not in the words of our laws, but in the actions of those in power. They knew that blind adherence to procedural rules in the unrelenting pursuit of political victory must give way at some point to the recognition that an unyielding pursuit of power will ultimately disturb the delicate balance at the center of our democracy.

    The respect for that imperative delicate balance of power has been significantly eroded by the overuse of the procedural filibuster by the Republican minority. The Senate was formed as a compromise between large populous states, and the smaller states in the union. The intention was smaller states would be given equal power in the Senate by virtue of the fact that every state had two representatives, regardless of population. Consequently, while more populous states would be able to force legislation through the House due to their population advantage, they would have to garner the cooperation of the smaller states to achieve passage of legislation in the Senate by a simple majority. The flagrant use of the filibuster significantly alters this dynamic. Now, instead of having to achieve a simple majority vote, Senators are forced to achieve a three-fifths majority (60 votes) to pass any legislation that the minority is vehemently opposed to. Requiring a three-fifths majority on landmark legislation is arguably an acceptable threshold, but requiring it for numerous Senate actions is another matter entirely. The Republicans have used the filibuster over a 100 times this year, meaning that the Republicans have taken a procedural tool and used it an exorbitant amount of times to frustrate the original intended structure of the Senate, which was to pass legislation with a simple majority.

    The abuse of the filibuster reflects a dangerous trend growing in American politics, the entrance of a zero-sum game mentality into our partisan political system. Before, flagrant procedural abuse of this nature was far rarer due to the simple pragmatic reality that it was not wise to take a no-holds-barred approach to advancing one legislative issue because your opponent on this issue may be your ally on another. This dynamic is fast disappearing from American politics. Instead, we now have the zero-sum game mentality. There is Us, and there is Them. And a win for Them, is a loss for Us. This mentality is what allows the current Senate minority to advance its political agenda as if they were engaged in a procedural extreme fighting bout without regard to the future alliances they may be threatening. They no longer see any future alliances with Democrats, just more zero-sum battles, allowing them to ignore the intent and spirit of the Constitution in exchange for a Pyrrhic legislative victory that erodes the essential foundations of our democracy.

    [image via Grundlepuck

  • December 24, 2009
    The Senate overcame a raft of attempts by conservatives to kill health care reform, passing this morning on a 60-39 vote a "landmark" health care reform bill, as dubbed by The Washington Post.

    Conservative pundits and advocates, including the Heritage Foundation and the Federalist Society loudly argued that aspects of the legislation, including the mandate for individuals without health care coverage to purchase it would prove unconstitutional. But many constitutional law experts and progressive advocates countered that Congress has the constitutional authority to pass such policy. On the eve of the vote, ACS published an Issue Brief by longtime public policy advocate and Washington, D.C. attorney Simon Lazarus refuting arguments that individual health care mandates are constitutionally suspect.

    Lazarus, the public policy counsel at the National Senior Citizens Law Center (NSCLC) and the former Associate Director of President Jimmy Carter's White House Domestic Policy Staff, maintained that the mandate "is lawful and clearly so - pursuant either to Congress' authority to ‘regulate commerce among the several states,' or to its authority to ‘lay and collect taxes to provide for the General Welfare.' He concluded, in part, that arguments to the contrary "have not basis in law, neither in the grants of authority to Congress in Article I nor in limitations on that authority in the Bill of Rights, nor in the case-law interpreting these provisions."

    After the vote on health care reform, in which senators rejected arguments over the constitutionality of the mandates, President Obama hailed the Senate bill as "the most important piece of social legislation since the Social Security Act," The New York Times reported.

    See Lazarus' Issue Brief, "Mandatory Health Insurance: Is it Constitutional?" here.