February 2011

  • February 15, 2011

    As expected, the Senate confirmed two judicial nominees yesterday, bringing the total number confirmed in the new Congress to five, The Hill reports.

    The confirmations are an early sign that an agreement between senators to move noncontroversial business forward without procedural blocks is having some effect. There remain, however, 101 vacant seats subject to Senate confirmation on the federal courts. And federal judges are now retiring at a rate of one per week, The Washington Post reported last week in a front-page story noting that federal judicial vacancies have reached a "crisis point."

    "With 100 vacancies to fill, the Senate should be confirming judges every week as part of its regular business," NAACP Legal Defense and Education Fund (LDF) President John Payton said in a statement after the vote. "We expect to see many judicial confirmations this session. Nothing is more important to the administration of our justice system."

    The Senate confirmed Mississippi Supreme Court Justice James Graves by unanimous consent for the U.S. Court of Appeals for the Fifth Circuit. Graves will become the first African American from Mississippi to serve on the Fifth Circuit, a development that LDF Washington Office Director Leslie Proll called a "historic" for the diversity of the federal courts.

    "Today's vote represents a sea change," Proll said after the vote. "James Graves is truly a consensus candidate; he is strongly supported by civil rights organizations and the two Republican Senators from Mississippi, Thad Cochran and Roger Wicker."

    The Senate also voted 93-0 to confirm Santa Clara Superior Court Judge Edward Davila to the U.S. District Court for the Northern District of California.

    To learn more about the judicial vacancy crisis and follow developments, visit JudicialNominations.org.

  • February 14, 2011
    Guest Post

    By Jeremy Bressman, a second year student at Harvard Law School. Jeremy's interests include civil procedure, sentencing law, and federal courts. This guest blog was originally posted on the blog of the Harvard Law & Policy Review, the official journal of the American Constitution Society.

    A few weeks ago, President Obama nominated Paul Oetken for a seat on the Southern District of New York. Oetken is eminently qualified for the position: After graduating from Yale Law ('91), he clerked on three courts, including the Supreme Court for Justice Blackmun, spent time at two major law firms, and worked in both the Office of Legal Counsel and the White House Counsel's Office. Perhaps most importantly, if appointed, Oetken would become the first openly gay man to sit on the federal bench. (A nominee to the Federal Circuit, Edward Dumont, is also openly gay; a judge on the Southern District, Deborah Batts, is currently the only openly gay female on the federal bench.)

    A few days later, the President nominated Arvo Mikkanen to a seat on the Northern District of Oklahoma. Like Oetken, Mikkanen certainly has the qualifications to be a federal judge: a Dartmouth College and Yale Law ('86) grad, Mikkanen himself clerked for two judges, has worked in both private practice and as an Assistant US Attorney, and is a former judge on numerous American Indian courts. If appointed, Mikkanen would become only the third Native American to ever sit on the federal bench. One of those judges, Frank Howell Seay of the Eastern District of Oklahoma, didn't even learn of his Native American heritage until he was in his 50s.

    See the rest of Bressman's post here.

  • February 14, 2011
    Many Tea Party leaders say they have the market cornered on constitutional scholarship, and that they are out to save the U.S. Constitution from an ever-expanding federal government. But as David Schultz writes in a piece for Salon, those advocates are actually pushing a very cramped view of the Constitution.

    Schultz, a Hamline University professor and professor of law at the University of Minnesota, writes, "If the Tea Party constitutional reading suddenly took sway and we returned to the original document as conceived, what would the American republic look like? Much to the surprise of Bachmann [Rep. Michele Bachmann, a founder of the U.S. House's Tea Party Caucus] and others, there wouldn't be that much freedom and democracy."

    Schultz then notes that the original Constitution did not include many of the rights and protections that we have come to enjoy. For instance, the original document only provided for limited voting rights, he notes. "Voting rights," Schultz points out, "were largely a matter of state law, and in 1787 most states limited the franchise to white, male, Protestant property owners, age 21 or older." Women did not secure the right to vote, he notes, until 1920 with the adoption of the 19th Amendment. "Without this amendment, there is no guarantee that Michele Bachmann would ever have been allowed to vote, let alone run for office," Schultz writes.

    The original Constitution also did not include a Bill of Rights and allowed for slavery.

    Schultz writes:

    Slavery did not end until the Emancipation Proclamation by Abraham Lincoln in 1863 and the adoption of the 13th Amendment in 1865. The original Constitution lacked an equal protection clause, which bans discrimination. It took the 14th Amendment in 1868 and a Supreme Court decision to create it. Lacking this clause, states were free to discriminate, and they regularly did via segregation laws.

    Last week at an ACS event, former N.Y. Governor Eliot Spitzer urged pushback against the Tea Party's rhetoric on the Constitution, saying their members loudly promote a rigid view about constitutional rights and protections.

  • February 14, 2011
    Guest Post

    By Martha F. Davis, Associate Dean for Clinical and Experiential Education and Faculty Director of the Program on Human Rights and Global Economy, Northeastern University School of Law. Davis is also co-author of the recent ACS Issue Brief, "Oklahoma State Question 755 and an Analysis of Anti-International Law Initiatives."


    Last November, Oklahoma voters approved an amendment to their state constitution that would bar state judges from considering international and foreign law, including Shariah Law.

    Quickly enjoined by a federal district court because it violates the first amendment, the electoral success of Oklahoma's provision has nevertheless triggered a wave of copy-cat proposals in states across the country, from Arkansas to Wyoming.

    Since citations of Shariah law and international law are hardly rampant in state courts - indeed, no Oklahoma court has ever relied on Shariah law - legislators pursuing these measures are either deliberately wasting valuable legislative time or they have some other purpose.

    One possibility is that these proposals are simply veiled attacks on the judiciary. Certainly, by associating state court judges with Shariah law and international law, they engage in a post-9/11 form of red-baiting: the measures paint a picture of state judges who are both unprincipled and disloyal to the U.S., favoring international litigants and supporting terrorists through domestic enforcement of Shariah law. Lawyers and the educated public should know that it's an absurd picture in light of the extensive vetting given state judges before they take office; whatever their faults, none of these judges are foreign agents and terrorist sympathizers - and if they were, they would surely be engaged in activities far less obvious than citing Shariah law in a few common law cases.

    Still, this broadside attack will inevitably have a chilling effect on state court judges, perhaps discouraging them from even traveling abroad and engaging in cross-border dialogue with foreign judges lest they risk accusations of "considering" foreign legal systems in their decisions. It is through this "chill" that proponents of these measures hope to reinforce notions of American exceptionalism, i.e., the idea that U.S. courts have nothing to learn from their international counterparts.

  • February 11, 2011

    The Senate is scheduled to vote on two judicial nominees, James Graves and Edward Davila, this coming Monday, The Hill reports. This comes after the Senate confirmed three nominees this week. One federal appeals court nominee has yet to have a confirmation hearing by the Senate Judiciary Committee, despite being nominated ten months ago. Edward DuMont, a partner in the Supreme Court and appellate practice at Wilmer Cutler Pickering Hale & Dorr and the first openly gay candidate for a seat on a federal appeals court, was nominated last April to the U.S. Court of Appeals for the Federal Circuit. He has experienced an "unusual" delay given Sen. Leahy's control of the Judiciary Committee's schedule, according to The Blog of Legal Times. In September, five former solicitors general submitted a letter urging DuMont's confirmation. No reason has been given for the postponement. To learn more about federal judicial vacancies and follow the latest developments, visit JudicialNominations.org.

    The Latest from "In the News"