April 2011

  • April 21, 2011

    With judicial nominations continuing to stall and no known Supreme Court vacancies on the horizon, “there are no excuses” for not filling the vacancies on our federal courts, ACS Board Member Linda Greenhouse writes in The New York Times.

    Greenhouse’s piece comes on the same day as a CNN report documenting the “dire situation caused by a massive [judicial] nominee logjam on Capitol Hill.”

    That judges are “among a president’s most important legacies is an observation so obvious as to be platitudinous,” she writes, blaming both Republicans and Democrats for continued obstruction.

    The Republicans’ strategy in blocking nominees, she asserts, is not about “anything that the Republicans say or imply it’s about” other than blocking judges who may eventually arise as nominees for future Supreme Court vacancies.

    But, she asks, why hasn’t Senate Majority Leader Harry Reid “scheduled a vote that would dare the Republicans to state their objections” to D.C. Court of Appeals nominee Caitlin Halligan, whose “qualifications are beyond a possible doubt” and who has nothing senators can hold against her but “excellence and career potential”?

    And why hasn’t President Barack Obama made more judicial nominations?

    “[Y]ou can’t confirm someone who hasn’t been nominated,” she writes.

    Read the full article here. And visit JudicialNominations.org to learn more about the judicial vacancy crisis and follow developments.

  • April 21, 2011

    "A  dire situation caused by a massive nominee logjam on Capitol Hill.”

    This is how CNN describes the state of judicial nominations in a new report that documents the “crisis” on our federal courts through interviews with a number of judges and experts, and clips from White House Counsel Robert Bauer’s rare public remarks at an ACS event.

     “This is as bad as I’ve seen it,” said U.S. District Court for the D.C. Circuit Chief Judge Royce Lamberth.

    “You’ve got judges handling eight times the number of criminal cases that are normally registered in other courts across the nation. That’s a staggering docket,” said U.S. District Judge for the Northern District of Texas W. Royal Furgeson Jr., who explained that the burden in border states handling large immigration and drug dockets is overwhelming.

    Ferguson said judges are forced to come up with shortcuts, like sentencing defendants assembly-line style.

    “That’s unacceptable,” he said. “But if you don’t do that, if you take the normal time it would take to sentence people, your cases just back up to the point where it’s impossible to deal with them. The courts just get completely gridlocked and logjammed.”

    Citing Robert Bauer’s remarks during an ACS event on judicial nominations that received widespread attention, CNN explained that what is particularly troubling is the “lack of urgency.”

    “Republicans as well as Democrats increasingly acknowledge, some privately, some publicly, that we are witnessing something profoundly troubling,” Bauer said.

    There are now 94 vacant federal court seats subject to Senate confirmation, 37 of which are considered judicial emergencies. Visit JudicialNominations.org to learn more about the judicial vacancy crisis and follow developments.

    See the full CNN report, which includes a video report, accompanying article, and several video interviews, here. Watch Bauer’s full remarks followed by a panel discussion on judicial nominations here.

  • April 21, 2011
    Guest Post

    By Ryan Kiesel. Mr. Kiesel heads the ACS Oklahoma Lawyer Chapter and served in the Oklahoma House of Representatives from 2004 – 2010. He is currently in private practice in Oklahoma City and teaches a course in Politics and the Law as an adjunct professor at the University of Oklahoma College of Law.


    In 2007, when members of the Oklahoma Legislature received copies of the Quran from the Governor’s Ethnic Advisory Council (disbanded by newly elected Gov. Mary Fallin), Rex Duncan, then a member of the House, issued a statement explaining that he would not accept the book and said of the Muslim faith, “Most Oklahomans do not endorse the idea of killing innocent women and children in the name of ideology.

    Nearly every Muslim in Oklahoma, or on the planet for that matter, would agree.

    Of course, what then Representative, and now District Attorney Rex Duncan meant was that the Muslim faith and its adherents are inherently at war with everyone who does not believe as they do. So to “save our state,” Mr. Duncan launched an attack on the civil liberties of individuals who do not believe as he does. (Mr. Duncan and other lawmakers also received Bibles, but did not reject or disparage those religious texts.)

    Mr. Duncan authored SQ 755, a ballot measure that appeared on the November 2010 ballot in Oklahoma. Duncan labeled SQ 755 a “pre-emptive strike” against efforts by Muslims and their liberal allies in the judiciary.

    The language of the ballot measure targeted the non-threat of foreign or religious law from superseding state or federal law and sought to protect Oklahomans from the influences of foreign cultures.  It allegedly accomplished this by mandating that state courts, and especially liberal, activist judges keen on violating the establishment clause and imposing religious precepts on unsuspecting Oklahomans, keep their decisions free from the taint of foreign laws or customs.  It mentioned Sharia law specifically.

    During the 2010 election, supporters of SQ 755 spread wildly inaccurate and prejudicial information to the electorate, telling voters that unless we amend Oklahoma’s Constitution, state courts would be forced to turn a cold shoulder to such crimes as domestic abuse, if those crimes were committed in the name of religion. Most candidates for office, Democrats and Republicans alike, endorsed SQ 755. Only a handful of candidates were willing to risk their political careers in defending their neighbors’ civil rights. On Election Day, SQ 755 was approved by an overwhelming majority of voters. (After the election, I appeared on MSNBC’s “Hardball with Chris Matthews,” to discuss SQ 755 and the politics of fear. See video of the segment here.)

    Within days of the election, Muneer Awad, the newly minted Executive Director of CAIR-OK, filed a request for an injunction to prevent the Election Board from certifying the results of the election. You can read his brief here.

  • April 20, 2011
    Guest Post

    By Reuben Guttman.  Mr. Guttman, a partner at the law firm of Grant & Eisenhofer, heads the firm's whistleblower practice and is founder of the website Whistleblowerlaws, which helps individuals using the False Claims Act to seek compliance with environmental, affirmative action, wage and hour, and "Buy American" requirements. It was cited as an authority by the Chamber of Commerce in its brief in Schindler Elevator Corp. v. U.S. ex rel. Kirk, which is pending before the U.S. Supreme Court.


    As the fate of a government shutdown last week was teetering over budget cuts of between $20-$40 billion, I could not help remind myself that only last year the Deputy Attorney General of the United States estimated that Medicare-Medicaid fraud alone costs the government up to $60 billion.

    Of course, this figure does not even account for precious healthcare dollars spent to treat injuries caused by misbranded drugs and defective medical devices. Taking into account over-billing by defense contractors in Iraq and Afghanistan, the for profit colleges whose degrees are not worth the tuition financed with government grants, the construction contracts designed to create good paying jobs but whose workers are not being paid prevailing wages, or the large scale procurements made under the Buy American Act where the goods are actually manufactured abroad, and the government has either wasted a massive amount of money or the money has been spent in ways that will not bring anticipated returns. Worse yet, as in the case of misbranded drugs, taxpayers may also face physical injury or illness.

    Unfortunately, instead of jail time or debarment, fraudsters are often rewarded with more government business. Even when they pay fines, the fines are so disproportionally small that they amount to a fee for the license to break the law. Consider the government’s $2.3 billion dollar settlement with Pfizer in 2009, which encompassed a pattern of alleged wrongdoing including misbranding of a drug for pediatric use. The combined civil and criminal penalty seemed large but actually paled in comparison to the $171 billion that the drug giant pulled in from sales of the pharmaceuticals encompassed by the complaint during the damage period.

  • April 20, 2011
    Guest Post

    By Douglas A. Kysar, Joseph M. Field ‘55 Professor of Law at Yale Law School and the author of Regulating from Nowhere: Environmental Law and the Search for Objectivity. ACS recently hosted a panel discussion centered on Kysar’s book. Watch video of the event here, and a short video interview with Kysar following the event here.


    In one of the most, er, hotly anticipated cases of its term, the Supreme Court yesterday heard arguments in the climate change nuisance suit of Connecticut v. American Electric Power. From the beginning of this litigation, pundits have questioned the plaintiffs’ decision to seek injunctive relief gradually abating the defendants’ greenhouse gas emissions. To critics, this form of relief – as opposed to, say, monetary damages – seems to highlight the complex and value-laden aspects of climate change as a policy problem, making judges more likely to dismiss the suit as lying beyond the ken of the judicial branch.

    Yesterday morning’s argument confirmed the pundits’ view, as even reliably liberal justices like Ruth Bader Ginsburg greeted the plaintiffs’ claims with palpable skepticism. Justice Ginsburg’s money quote, which is being cited around the blogosphere, came when she told the plaintiffs that their prayer for relief “sounds like the kind of thing EPA does.” Justice Kagan quickly piled on: “It sounds like the paradigmatic thing that administrative agencies do rather than courts.” Justice Breyer, ever the policy wonk, wondered aloud whether “the courts [can] set a tax” because, in his words, from “what I get from reading, these [carbon taxes] might be the best way to deal with the problem.”  (Answer: Courts set implicit harm taxes every day in the form of monetary tort awards. Bonus Answer: The Clean Air Act might well be a great way to deal with the problem, as the benefits of emissions permits have been oversold and the likelihood of a carbon tax passing Congress is nil).  For her part, Justice Sotomayor was nowhere to be found since she had recused herself from the case, even though she would have been within ethical guidelines to stay involved.

    With friends like these, environmentalists might be forgiven for asking themselves, who needs Scalia?  Well, actually, even the reliably conservative Justice Scalia surprised observers this morning with just how conservative he could be. Throughout the oral argument, Scalia brazenly asked the electric utilities’ lawyer for suggestions on how to use this case to prevent climate change tort suits in both federal and state courts. (Answer: There is no appropriate way because the question of state common law climate change claims has not been raised in the present suit).  

    So is there any good news for environmentalists and other progressives from yesterday's argument?