July 2011

  • July 29, 2011

    by Amanda Lynch

    Pressure is mounting on the Senate to confirm judicial nominees before the scheduled recess next Friday. Chief Judge Federico A. Moreno of the U.S. District Court for the Southern District of Florida wrote letters to Sens. Harry Reid and Mitch McConnell asking for swift confirmation of his district’s nominations, Kathleen Williams and Robert Scola.

    ABA President Stephen Zack also addressed a letter to Sens. Reid and McConnell encouraging them to accelerate the pace of confirmations, beginning with immediate up-or-down votes for the 21 nominees unanimously reported out of the Judiciary Committee.

    An editorial in the San Antonio Express-News urged swift confirmation of Texas nominees, who are needed to deal with the “mounting number of criminal cases related to border issues, including drug and human trafficking.”There are currently seven vacancies on the Texas district courts, all of which have been deemed judicial emergencies, and there is a measure pending before congress that would create three new federal courts in that state to deal with the overwhelming caseload.

    Also this week,the Senate unanimously confirmed two judicial nominees, Paul A. Engelmayer to the U.S. District Court for the Southern District of New York, and Ramona Villagomez Manglona to the District Court for the Mariana Islands.

  • July 29, 2011
    Video Interview

    by Jeremy Leaming

    Right-wing policy makers have spent more than a year bemoaning, as a serious affront to liberty, the Affordable Care Act’s (ACA) provision that requires people to carry, starting in 2014, a minimum amount of health care insurance or pay a penalty. Supporters of the health care law point out, however, that without the minimum coverage provision, the landmark health care reform law would be ineffective, allowing insurance companies to discriminate against people with pre-existing conditions, thereby undercutting a main impetus of the law, which is to make sure that the vast majority of Americans are able to carry health care insurance.

    Despite the hue and cry from the Right over the ACA’s minimum coverage provision, government mandates on abortion continue to proliferate in the states, especially those states with legislative bodies controlled by right-wing policy makers.

    Yesterday, the North Carolina Senate successfully enacted a law that will require women seeking abortions to wait 24 hours, receive state-mandated “counseling,” and a state-mandated ultrasound before receiving the medical procedure. Both chambers of the North Carolina General Assembly overrode Gov. Bev Perdue’s veto of the measure. Twenty-five states now require government-mandated “counseling” and waiting periods before women can receive abortions.

    Following the Assembly’s action, Gov. Perdue issued a brief statement saying, “The Republican’s social agenda has, with this bill, invaded a woman’s life as never before – by marching straight into her doctor’s office and dictating the medical advice and treatment she receives.”

    The Center for Reproductive Rights President and CEO Nancy Northup ripped the new law as politically motivated and constitutionally suspect.

    “It is extremely disheartening that the North Carolina legislature would go out of its way to enact a law that uses the doctor-patient relationship to advance a political agenda,” Northup said in a press statement. “When women go to the doctor, they don’t expect to be held hostage in an attempt to change their minds. They rightfully expect to be treated as an adult capable of making their own personal decisions. This law is an affront to a woman’s dignity and a violation of her constitutional rights.”

    At the ACS 10th Anniversary National Convention, former Acting Solicitor General Walter Dellinger, a partner at O’Melveny & Meyers, blasted the Right’s rhetorical and legal attacks on the health care law’s minimum coverage provision, saying he’s had enough of the lectures about government encroachment on liberty.

    “We hear the talks about government intrusions into health care – that this represents an extraordinary step about liberty,” Dellinger (pictured) said during a panel discussion on the constitutionality of the ACA. “And I just cannot, any longer, refrain from making the observation that it is really ironic and disturbing to hear that liberty lecture come from people talking about [a] government takeover of medical care, many of whom would legislate the imposition upon women of unnecessary waiting periods, government scripted lectures, compulsory sonogram viewings, and government mandated unsafe medical procedures.”

    Louise Melling, director of the ACLU’s Center for Liberty, in an interview with ACSblog, said this year has been an especially bad one for reproductive rights. (And this interview came before the action in N.C. She talked with ACSblog following a panel at its national convention on reproductive rights.)

    The bills passed are making it more and more difficult for women to find physicians who can perform abortions, and having a stigmatizing effect as well, Melling said.

    “It is also a way of stigmatizing to say ‘women can’t make these decisions,’ we’re not … trusted decision-makers, and we need assistance as we make this decision,” she said.

    And what is awfully “scary,” Melling said was that politicians are not paying a price for supporting the draconian laws.

    “Nobody is really standing up to say this is not ok, these laws are just rolling right through,” she said.

    Watch her entire interview below or download a video podcast of it here. The video is also available at this site.

  • July 29, 2011

    by Nicole Flatow

    The Senate is scheduled to adjourn a week from today for the remainder of the summer, and negotiating a deficit reduction deal is not the only business they risk leaving unfinished.

    In a letter sent yesterday to Sens. Harry Reid and Mitch McConnell, American Bar Association President Stephen N. Zach calls attention to the remaining “long-standing vacancies on courts with staggering caseloads” that the Senate has failed to fill by confirming President Obama’s nominees.

    Twenty-five nominees have been approved by the Senate Judiciary Committee and are ripe for an immediate confirmation vote by the Senate, but no votes have been scheduled.

    In his letter, Zach asks Reid and McConnell to schedule “immediate up-or-down votes” before the August recess on 20 nominees who were reported out of the Committee without a single opposition vote.

     “As lawyers who practice in federal courts across this nation, ABA members know firsthand that long-standing vacancies on courts with staggering caseloads impede access to the courts and create strains that willinevitably reduce the quality of our justice system and erode public confidence in the ability of the courts to vindicate constitutional rights or render fair and timely decisions,” Zach writes.

    But, he adds, confirming these 20 nominees immediately is just a beginning.

    “To achieve a significant and lasting reduction in the vacancy rate, both the Administration and the Senate need to engage in a concerted and sustained effort to expedite the process,” he writes.

  • July 29, 2011
    Guest Post

    By Nicholas Bagley, Assistant Professor of Law, University of Michigan Law School.

    These are heady days for administrative law. In hearing after hearing on Capitol Hill, members of Congress have examined the virtues and vices of a host of pending bills that aim to encumber regulatory decision-making. There are bills to require congressional approval before major regulations take effect, bills to subject informal agency guidance to notice-and-comment rulemaking, and bills demanding the elimination of one regulation every time another is imposed. For all their differences, however, the bills share a common purpose: to put the kibosh on what their sponsors decry as job-killing regulations.

    This is all a bit surreal. Hobbling federal agencies makes sense if the burdens of regulation systematically exceed the public benefits. But they don’t. In comprehensive studies, both Republican and Democratic administrations have repeatedly found that regulation confers substantial net benefits. The notion that federal bureaucrats as a group are heedless of social costs — or worse, that they regulate just for the thrill of it — has no foundation in either fact or theory.

    The truth is that some agencies grow so close to industry groups that they may not regulate diligently enough. A few examples:

  • July 28, 2011
    Video Interview

    by Jeremy Leaming

    Beyond the most recent high-profile state legislative victories for marriage equality, there are “huge advancements that have been made in terms of [court] doctrine regarding sexual orientation law,” North Carolina University law school professor Holning S. Lau told ACSblog.

    Lau, a panel participant at the ACS 10th Anniversary National Convention, said that until recently “there was virtually no precedent to be cited for the proposition that sexual orientation discrimination should be subject to heightened scrutiny -- this idea that sexual orientation is a suspect or quasi-suspect status. But over the past few years, we’ve seen a crystallization of jurisprudence to support that point. The high courts of California, Iowa, Connecticut, have all issued opinions saying that sexual orientation is either a quasi-suspect or suspect status."

    He continued, “We saw the same conclusion reached in Perry v. Schwarzenegger [the 2010 federal court opinion invalidating California’s anti-gay marriage law, Proposition 8], in Eric Holder’s memo on DOMA [the federal anti-gay marriage law]. And that’s been huge, because prior to this burgeoning of jurisprudence on this point, a lot of courts concluded in the opposite direction.”

    So while a few state legislatures, most dramatically, the New York legislature, have come through in favor of marriage equality, there is a slowly developing body of jurisprudence that looks promising for the advancement of equality for the LGBT community.

    “We’ve seen the jurisprudence really reach a new point,” Lau said, “and there is good case law, persuasive case law, in many instances … case law that courts can make use of to support the idea that sexual orientation discrimination should be subject to heightened scrutiny.”

    Earlier this month, Professor Scott Lemieux wrote, in a piece for The American Prospect, that the LGBT community must not forgo the courts in seeking full equality. All options must be used in securing equality, he wrote.

    Watch video of Lau’s entire interview below or download it as a video podcast. The video is also available here.