April 2010

  • April 9, 2010
    Guest Post

    By Deborah J. Vagins & Erika Wood. Vagins is Legislative Counsel for the Washington Legislative Office of the American Civil Liberties Union; Wood is Deputy Director of the Democracy Program at the Brennan Center for Justice at NYU School of Law.

    In our recent Issue Brief for the American Constitution Society, The Democracy Restoration Act: Addressing a Centuries-Old Injustice, we examine an ongoing and deeply problematic barrier to the fundamental right to vote for millions of Americans. Currently, 5.3 million American citizens are denied this right because of a criminal conviction in their past. Nearly 4 million of those who are disfranchised are out of prison, working, paying taxes, and raising families, yet they are without a political voice.

    With their roots in the Jim Crow era, many of these laws were originally enacted as a way to prevent African Americans from exercising their newly-won rights under the Fourteenth and Fifteenth Amendments. Their intended effects continue today. While 2.5% of the total U.S. voting age population is currently disfranchised, over 13% of African-American men are denied the right to vote on account of past criminal convictions -- this rate is seven times the national average.

    Although in the past decade there have been significant reforms of these laws in the states, there is a compelling need for a federal standard. Some states disfranchise persons on parole or probation while others permanently disfranchise some or all who have completed their sentences. Several states even deny voting rights to persons who have incurred legal financial obligations or have only been convicted of misdemeanors.

  • April 9, 2010
    Guest Post

    By Ariela J. Gross is John B. & Alice R. Sharp Professor of Law & History at the University of Southern California, and author of What Blood Won't Tell: A History of Race on Trial in America (2008).

    On April 6, Virginia Governor Robert McDonnell proclaimed April "Confederate History Month," a time to honor "the leaders and individuals in the Army, Navy and at home who fought for their homes and communities and Commonwealth in a time very different than ours today." McDonnell (pictured) declared that Confederate history "should be studied, understood and remembered by all Virginians, both in the context of the time in which it took place, but also in the context of the time in which we live." Why is the history of the Confederacy still relevant to the time in which we live today? Is it because today, yet again, white Southern leaders are urging their fellow partisans (Republicans now rather than Democrats 150 years ago) to "nullify" acts of the Federal government, and "tea party" activists are talking about secession? Is it because race continues to divide the country politically, with whites in the former Confederate states disproportionately opposed to the first Administration headed by an African American? No, according to McDonnell -- at least until the political firestorm that met his declaration yesterday forced him to backtrack and add a paragraph about slavery -- what made Confederate history relevant was "things important to Virginia" like "tourism."

    Governor McDonnell has apologized, and amended his declaration with an incongruous paragraph adding that "it is important for all Virginians to understand that the institution of slavery led to this war and was an evil and inhumane practice that deprived people of their God-given inalienable rights and all Virginians are thankful for its permanent eradication from our borders, and the study of this time period should reflect upon and learn from this painful part of our history." Well, it's good to know that McDonnell is at least thankful that the institution of slavery no longer exists in Virginia. But his acknowledgment that slavery "led to" (not caused) the Civil War sits in awkward juxtaposition with his characterization of the conflict as a "war between the states for independence."

    The fact is, Confederate flags and Confederate History Months and other emblems of Lost Cause nostalgia draw on an ugly strain of white political culture that should no longer have a place in a state like Virginia, a state so transformed in recent decades that it turned blue on the electoral map in 2008, and in which African American guides at Monticello point out Sally Hemings' residence on the official tour of Jefferson's estate. The romance of the Confederate soldier who gave his life for the beautiful idea of state's rights is a tired myth; waving that tattered flag dishonors the descendants of Virginia's slaves, many of whom fought for the Union, and for freedom. Memorials to the Civil War, in which so many Americans lost their lives, are entirely appropriate; shrines to the Confederacy are a throwback to the "Redeemer" era of one hundred years ago when North and South "reunited" in white supremacy and invented memories of the Lost Cause. Acknowledgment of slavery or not, we don't need a Confederate History Month. 

  • April 9, 2010

    Just 11 days before his 90th birthday, Justice John Paul Stevens announced his retirement, reports the AP. A statement from the U.S. Supreme Court, sent this morning, indicated that Stevens' retirement is effective one day after the Court wraps up the current term this summer.

    "Associate Justice John Paul Stevens has earned the gratitude and admiration of the American people for his nearly 40 years of distinguished service to the Judiciary, including more than 34 years on the Supreme Court," Chief Justice John Roberts said in a statement. "He has enriched the lives of everyone at the Court through his intellect, independence, and warm grace."

    Accoding to the Los Angeles Times, Stevens unexpectedly early announcement was motivated by his concern for the Court. In a letter to President Obama this morning, Stevens said, "Having concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court's next term, I shall retire from active service."

  • April 8, 2010
    Guest Post

    By Rena Steinzor and Robert Kuehn. Professor Steinzor is the former director of the University of Maryland Environmental Law Clinic and is now president of the Center for Progressive Reform. Professor Kuehn was the director of the Tulane Environmental Law Clinic when it first came under attack in 1998 and is now president of the Clinical Legal Education Association.

    As any American who has read To Kill a Mockingbird should know, attacking lawyers for representing unpopular clients threatens the heart of an American justice system already weakened to the verge of collapse by the defunding of public defenders and legal aid. The right-wing tirade against the "treasonous" lawyers who represent Guantanamo prisoners was a huge shove in a bad direction. Less sensational, but at least as damaging, are a rising tide of attacks on law school clinics by those powerful interests affronted by law clinic opponents' access to pro bono assistance in any form.

    Liz Cheney's misstep on terrorist lawyers was swatted to oblivion in the blogosphere, ultimately condemned by lawyers across the political spectrum. Too often, the clinics stand vulnerable and alone, leaving their young lawyers-in-training to take intolerable lessons about the limited availability of American justice. As The New York Times reported on Sunday, such attacks are as harsh as Cheney's: "We're going to tell legislators all over the state, if [the Tulane University environmental law clinic] want[s] to play hardball by trying to kneecap industry in Baton Rouge," said the Louisiana Chemical Association president Dan Borné, "then we should play hardball and kneecap them [Tulane University] with their state appropriations." Having gone through the wringer once in 1998 when elected judges supported by the chemical industry set sharp limits on the kinds of clients student attorneys could represent in court, the latest round of abuse includes a pending bill in the state senate that would block any university that receives states funds from suing government agencies, businesses or individuals or raising most constitutional challenges unless exempted in the legislation.

    In Michigan, student attorneys in an innocence clinic were recently threatened with a subpoena to testify against their client in a criminal case; the case against the client was ultimately dropped. And in New Jersey, a real estate developer is trying to use the state's open records law to force a Rutgers clinic to turn over its case files for a community group opposing the developer. A survey of 300 faculty members at law school clinics across the country found that nearly 10 percent said they have been urged by their school's dean to avoid a particular case, and nearly 15 percent reported similar advice from their clinic's director.

  • April 8, 2010

    A recent symposium at the Brennan Center for Justice at New York University School of Law featured several frequent ACS participants as part of what legal expert Stanley Fish called "a group of A-list first amendment scholars." The Brennan Center convened the cadre of scholars "to rethink the relationship of money, politics and the Constitution" in the wake of the Supreme Court's 5-4 decision in Citizens United v. FEC, which loosened regulations of corporate electioneering.

    Af the event, Fish writes

    [I]t is the spirit of the occasion rather than any one thing said during it that impressed. This crowd thinks that it is going to win, thinks, as one participant put it, that Citizens United was "a huge reach" and "sits on a bubble," ready to be toppled. At most of the conferences I attend, talk like that would be little more than blowing smoke. But in this one the speakers and respondents were high-profile law professors, deans of prestigious law schools, lawyers who have argued before the Court and interacted, formally and informally, with its members. It occurred to me as I left at the end of the day that as a result of what had been said and proposed something in the world might actually change. The very thought made me nervous.