August 2011

  • August 19, 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.


    The new HBO documentary on Gloria Steinem’s life and work provides an occasion for reflecting on the state of women in the U.S. To her great credit, Steinem herself has urged feminists to use this moment as an opportunity to look toward the future, to plan and strategize for the next wave of feminism. As she has often observed, it took women nearly a hundred years to get the vote. By that gauge, it may be another fifty years until we achieve the broader equality for which Steinem’s generation campaigned.

    Before we get too blue about this long arc of history, it is worth remembering that few social movements march steadily toward their goals. Rather, progress is measured in fits and starts, in long struggles and sudden leaps, in a series of moments that add up to lasting social change. The women’s movement is no exception. 

    Professor Bruce Ackerman, of course, popularized the idea of constitutional moments – times of significant constitutional re-arrangement arising from shared national experiences. The New Deal and the Reconstruction are prime examples.

    The dramatic constitutional developments that expanded women’s legal equality are also well-known – the ratification in 1920 of the 19th amendment to the U.S. Constitution giving women the vote, for example, and the Supreme Court’s acknowledgement in the 1971 case of Reed v. Reed of the harm of sex-stereotyping. These were momentous legal victories for women, the result of decades of activism and effort. In their wake, however, the actual implementation of gender justice has been slow.

    The data tells the story.

  • August 19, 2011

    Following the Senate’s failure to vote on 20 “perfectly qualified nominees” before leaving for the August recess, The Washington Post editorial board this week slammed the “gamesmanship” as “not only frustrating but also destructive.” The board continued, “The seat-saving obstructionism that accompanies an election year and brings confirmations to a standstill now looms.” The Atlantic’s Andrew Cohen echoed this sentiment last week, and followed up with a second article on those federal nominees the Senate has confirmed. He notes that once given the opportunity of a vote, 87 percent “came onto the bench with no meaningful opposition on the floor of the Senate.”

    The White House released an infographic on its blog touting the Administration’s historic successes but also noting the historic delays in judicial nominations. Although the administration has shown an “unprecedented commitment to expanding the racial, gender and experiential diversity of the men and women who enforce our laws and deliver justice,” the blog entry asserts, “the delays these nominees are encountering on Capitol Hill are equally unprecedented.” The Blog of Legal Times reports on the infographic and accompanying statement as a signal that the White House is making confirmation of judges a “top priority.”

    Also in the Blog of the Legal Times, David Ingram summarizes recent changes within the Obama administration. He identifies Chris Kang as the lawyer responsible for running the judicial nominations process and reports that Leslie Kiernan began work on Monday as a Deputy Counsel to the President; judicial nominations are included in her portfolio.

  • August 19, 2011

    by Nicole Flatow

    Although many prominent legal leaders, editorial boards and commentators have long lamented the high number of judicial vacancies plaguing our courts, it is not easy for those removed from the process to understand how judicial nominations work, and what impact these empty seats  have on our justice system.

    The White House has put together a new infographic that paints a powerful picture of the nature of Senate obstruction of judicial nominees, and highlights Obama’s efforts to diversify our federal courts.

    Here are a few key facts included in the infographic:

    • Obama’s nominees are highly qualified: All 155 of President Obama’s nominees have been rated qualified or well-qualified by the American Bar Association, yet only 97 of the 155 have been confirmed.
    • Obama’s judicial nominees have waited more than five times longer for a Senate confirmation vote than Bush’s nominees: President George W. Bush’s district court nominees waited an average of 20 days for a Senate confirmation vote following their approval by the Senate Judiciary Committee, which vets judicial nominees. President Obama’s district court nominees have waited an average of 103 days, and his circuit court nominees have waited an average of 151 days. Some of President Obama’s nominees have waited as long as 21 months for the Senate to schedule an up-or-down vote.
    • While nominees are held up, justice is delayed: In 16 percent of civil cases before the federal courts in 2010, individuals had to wait more than three years for a resolution. In 2006, only six percent of cases took that long. (And in the districts containing some of the 37 vacancies deemed judicial emergencies, the waits can be much longer.)
  • August 18, 2011

    by Nicole Flatow

    Slashed funding for state courts around the country is crippling our justice system, a New York Times editorial published today warns.

    Citing a new report by an American Bar Association task force, “Crisis in the Courts: Defining the Problem,” the editorial notes that the recession has led to layoffs of judges, law clerks and other court staff at a time when the courts have been “flooded with thousands of new foreclosures, credit card cases and other lawsuits driven by economic hardship.”

    “The report rightly says that ‘even the most eloquent constitution is worthless with no one to enforce it,’” the editorial states.

    Earlier this month, The Huffington Post published an lengthy article on how cuts to state courts, cuts to legal services and unprecedented obstruction of judicial nominees are all severely limiting individuals’ access to justice.

  • August 18, 2011

    by Jonathan Arogeti

    This past Term of the Supreme Court proved “very tough for consumers,” says Robert Peck, president of the Center for Constitutional Litigation, in a video interview with The National Law Journal’s Tony Mauro.

    “This is a court that doesn’t seem to like litigation, and especially doesn’t like litigation against business,” Peck said. “They’ve taken a number of cases [in] which plaintiffs are now going to have great difficulty achieving justice and recompense for things that happen at the hands of corporations.”

    Peck discusses two of the cases that had the greatest impact on litigants: PLIVA v. Mensing and Wal-Mart v. Dukes.