July 2011

  • July 26, 2011

    by Jeremy Leaming

    U.S. Senators blocked his nomination to the federal bench, but California Gov. Jerry Brown is turning to one of the nation’s leading legal scholars, Goodwin Liu, to fill a vacancy on the state’s highest court.

    California Gov. Jerry Brown in nominating UC Berkeley Law school professor and longtime ACS member and leader Liu to the California Supreme Court, lauded him as “an extraordinary man and a distinguished legal scholar and teacher. He is a nationally-recognized expert on constitutional law and has experience in private practice, government service and in the academic community. I know that he will be an outstanding addition to our state supreme court.”

    Liu (pictured) is nominated to replace former California Supreme Court Justice Carlos Moreno who left the bench earlier this year for private practice, The Associated Press reports.

    Moreno told the AP, “Gov. Brown is to be commended for his visionary and truly meritorious appointment.”

    Liu, a son of Taiwanese immigrants, was born in Georgia and grew up in Sacramento. He became involved with ACS early in his legal career as a regular member of the organization’s D.C. chapter, which he would eventually lead, before being named to the ACS Board of Directors. He was later selected to chair the ACS Board.

    ACS Executive Director Caroline Fredrickson praised Liu’s scholarship, saying, “We can personally attest to Goodwin’s leadership capabilities, his passion for the law, and sharp legal mind.”

    Liu’s nomination, which must be confirmed by the State’s Commission on Judicial Appointments, drew widespread praise from leading legal figures, as noted in this press release from Brown’s office.

    Debra L. Zumwait, vice president and general counsel, Stanford University, said, “Goodwin Liu is not only a brilliant legal scholar, but a person of great integrity, fairness, and dedication to public service. He is an inspired choice for the California Supreme Court, which will be enriched by his presence.”

    The National Asian Pacific American Bar Association (NAPABA) President Paul O. Hirose noted that Brown has continued to promote diversity. “Governor Brown once again has demonstrated his commitment to diversity by nominating Professor Liu.” The NAPABA press statement notes that during his first tenure as governor from 1975 – 1983, Brown appointed the first African American to the California Supreme Court, the first woman, the first female Chief Justice to the California high court, and the first openly gay judge to “any court nationwide ….”

    At Fair and Unbalanced blog, Brown is praised for beginning, again, the process of diversifying the California Supreme Court, which was remade by a “string of conservative Governors.” The blog notes, that there “is not one justice on the current Court appointed by a Democrat.”

    U.S. Senate Republicans defeated Liu’s nomination to the federal bench, in part, by distorting some of his academic work, and because of his opposition to then-Supreme Court nominee Samuel Alito. The New York Times blasted Republican opposition to Liu as “laughably thin.”

    If Liu’s nomination to the U.S. Court of Appeals for the Ninth Circuit had been confirmed, it would have added some diversity to that federal appeals court circuit.

    “The president has tried to diversify the federal bench,” Fredrickson said shortly after the demise of the nomination, “but this effort has hit a wall of Republican obstructionism in the Senate. Professor Liu, by the way, would have enriched our federal bench. Of the 160 active judges on the federal appeals court, there is not one active Asian Pacific American judge on the Ninth Circuit.”

  • July 26, 2011

    by Nicole Flatow

    The Senate unanimously confirmed two federal district court nominees today, three-and-a-half months after they were confirmed by the Senate Judiciary Committee.

    In past years, these nominees would have been confirmed the same week they were unanimously approved by the Judiciary Committee, Sen. Patrick Leahy said on the Senate floor. “For some reason, my friends on the other side think it should be different with a Democratic President than it was for a Republican President, or for that matter, all past Presidents.”

    Although the Senate made some limited progress today in confirming 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, “these needless delays perpetuate the judicial vacancy crisis that Chief Justice Roberts, a Republican appointee, wrote of last December and that the President, the Attorney General, bar associations and chief judges around the country have urged us to join together to end,” Leahy said.

    Now another chief judge has joined the plea to the Senate to confirm judges.

     “Unfilled positions in our Court present an undue hardship on the citizens residing in the Southern District of Florida, particularly those with cases pending in the affected division of the Court,” U.S. District Court for the Southern District of Florida Chief Judge Federico A. Moreno wrote in letters to Sens. Mitch McConnell and Harry Reid.

    Moreno called on the senators to “expedite the Senate’s confirmation” of two nominees to the Southern District of Florida, noting that the three judicial vacancies in that district have created a “judicial shortage” that is “becoming acute.” Both nominees, Kathy Williams and Bob Scola, were unanimously approved by the Senate Judiciary Committee.

    As Leahy notes, many other judges and legal leaders have decried the judicial vacancy crisis. But in spite of this outcry, there are now as many current and future vacancies as there were at the beginning of 2011, when senators came to a “gentleman’s agreement” to end obstruction of judicial nominations. As Jonathan Bernstein observed in The Washington Post recently, “It appears … that the deal has now broken down.”

    Leahy said this week that the 25 remaining nominees who are ripe for a final vote, most of whom had no opposition from the Judiciary Committee, “could be disposed of within an hour.” With less than two weeks before the Senate is scheduled to recess, and election season fast approaching, the question is, will the Senate answer the plea of Judge Moreno and others to fill these long-vacant seats now?

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

  • July 25, 2011

    by Amanda Lynch

    Law professors “have received a relatively chilly reception in Washington of late, at least when it comes to high-profile positions that require the blessing of the Senate,” reports The National Law Journal. That has taken some by surprise, given the President’s own academic background.

    The Journal highlights the stalled bids of federal judicial nominees Goodwin Liu and Victoria Nourse and executive branch contenders Elizabeth Warren and Dawn Johnsen, all law professors who were opposed by Republicans. The blocking of UC Berkeley law professor Liu’s nomination to the Ninth Circuit Court of Appeals prompted UCLA law professor Adam Winkler to make a similar point about academics’ prospects before the Senate in May. In a guest post for ACSblog, Winkler wrote:

    Even if a law professor scores a nomination, today’s highly polarized confirmation process, coupled with new technologies, make confirmation very difficult. Any law professor that writes on a politically contentious issue like abortion, affirmative action, or same-sex marriage will have those writings used against him. This isn’t unique to law professors; any writings of any nominee will be scrutinized. A sitting judge, however, can explain away controversial opinions by saying they don’t reflect her personal views but were required by precedent. Law professors don’t have that easy out – as Liu’s case shows.

    Winkler expressed concern that law professors with judicial aspirations will be deterred from writing frequently, discussing controversial topics, and speaking out, a fear that Indiana University law professor Dawn Johnsen, whose nomination to head the Office of Legal Counsel was filibustered, urged young lawyers to resist.

    “In the current climate, even if you attempt a crass political calculus about how to live your life, you may as well say what you think, because they can always find a footnote to twist and distort in a 20-year-old brief," Johnsen, an American Constitution Society Board Member, said during the 2010 ACS National Convention.

  • July 25, 2011
    Guest Post

    By Eduardo M. Peñalver, Professor of Law, Cornell Law School


    If one definition of insanity is doing the same thing over and over while expecting a different result, then the “Protect IP Act” surely counts as confirmation (as if any were needed at this point) that our IP system and its beneficiaries have become genuinely unhinged.  The bill’s name is supposedly short for the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011,” but can anyone doubt that the sponsors came up with the acronym first and then brainstormed ways to generate it?  It is backed by the usual industry suspects, including the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA), and Viacom. 

    Protect IP attempts to provide new legal tools for going after websites located outside the United States who post infringing material.  Sponsored by (among others) Democratic Senator Patrick Leahy, it empowers federal courts to, in effect, “disappear” web sites that are “dedicated to infringing activities.”  Most significantly, the bill creates a procedure by which the Department of Justice can bring an action in federal court to request an order that, if granted, it can then use to compel domain name servers, search engines, and even (arguably) websites that link to the offending site, to delete references to the blacklisted site, apparently with the aim of making it impossible for users to reach the infringing content. 

    Much of the criticism of the proposed law has focused on the vagueness of its terms and the threat this may pose to First Amendment values.  What does it mean for a site to be “dedicated to infringing activities”?  Would the law, for example, make it possible for the U.S. government to block access to WikiLeaks by, among other things, punishing anyone who links to the site?  Commentators have also criticized the lack of procedural safeguards before a blacklist order may issue.  Although I agree with all of these concerns, I am more interested in the evidence the bill provides that a significant contingent of content providers (and therefore members of Congress eager to do their bidding) remain convinced that the solution to the problem of online piracy lies in reflexively ratcheting up the legal sanctions for infringement. 

  • July 25, 2011
    Guest Post

    By Dr. Greg Rabidoux


    Speaking before a joint session of Congress on March 15, 1965, LBJ urged support for the Voting Rights Act (VRA). He implored all members to get behind it or risk being on the wrong side of history. He asserted that “Experience has clearly shown that the existing process of law cannot overcome systematic and ingenious discrimination. No law…can ensure the right to vote when local officials are determined to deny it.”

    That was then, and Justice Clarence Thomas (among others) and his assertion that the time for the Voting Rights Act has indeed come and gone, is now.

    But before we throw dirt on the VRA once and for all, a bit of context is in order.

    With the current redistricting cycle full steam ahead, the VRA becomes controlling  when plaintiffs seek to challenge newly drawn maps of legislative districts with sections (2) and (5) being invoked. Section 2 prohibits any “voting qualification or prerequisite to voting, or standard, practice or procedure” being imposed or applied to any State or political subdivision” that would “deny or abridge the right of any citizen of the United States to vote on account of race or color” while Section (5) requires a DOJ or US District Court of DC “pre-clearance” when seeking to administer any voting qualification, procedure, standard, practice or procedure “different from that in force or effect November 1, 1964.”

    Ever since Allen v State Board of Elections (1969) the VRA (sections 2 and 5) have been the “go to” weapon in any savvy plaintiff’s arsenal to attack partisan maps that target minority representation and political voting power for dilution. But under the Roberts Court, those days may be fast coming to a halt.

    Currently, there are two cases that especially merit our close watch. Shelby County, Alabama v Holder (2010) is challenging the constitutionality of section 5. They argue that the VRA is a relic of the past and its intent to “enforce the 15th Amendment by appropriate legislation” is as outdated as hula contests and hoop skirts.