August 2011

  • August 5, 2011

    by Nicole Flatow

    Racial discrimination in the selection of juries remains a significant problem 25 years after a  Supreme Court decision outlawed juror exclusion on the basis of race, writes Equal Justice Initiative Director Bryan Stevenson for Human Rights, a magazine of the American Bar Association.

    Following the Supreme Court’s 1986 decision in Batson v. Kentucky, prosecutors must provide a nonracial reason for opting to exclude particular jurors from trial. But prosecutors have become creative in developing seemingly race-neutral explanations that are motivated by race, some of which could easily be rooted out by judges, Stevenson explains:

  • August 5, 2011

    by Jeremy Leaming

    Following President Obama’s selection of Sen. Mike Lee’s (R-Utah) general counsel, David Barlow, to be the next U.S. Attorney for Utah, The Huffington Posts’s Dan Froomkin provides a closer look at how the president wound up making the nomination, which did not go over very well with many in the progressive community.

    The response from progressives was, as Froomkin points out, utter dismay, for Lee is not only a Tea Party favorite, but also harbors some radical beliefs on the parameters of the Constitution. Shortly after winning his Senate seat last year, Lee (pictured) said the Constitution allows for the shuttering of the Departments of Education and Housing and Urban Development, and during his campaign claimed the Constitution does not give the government much power to “redistribute our wealth,” apparently overlooking Congress's power to tax and spend. He also, as noted here by Jeffrey Rosen, called for the repeal of the 16th Amendment, which authorizes a progressive income tax, and the 17th Amendment, which allows senators to be elected by popular vote rather than anointed by state legislatures.  (Froomkin notes that is not clear whether Barlow shares all of Lee's "legal theories.")

    But Froomkin says one possible reason for Barlow’s selection “is that Obama’s leeway when it comes to successfully nominating U.S. attorneys and federal judges is severely limited by intransigent Republicans – and by Senate Judiciary Committee Chairman Pat Leahy (D-Vt.). The Vermont senator has insisted that either senator from a nominee’s home state can block the nomination simply by refusing to signal support.”

    “The end result,” Froomkin continues, “is that Obama, in many cases, is working off a list of candidates drawn up and considered acceptable by Republicans, rather than the other way around.” 

    ACS Executive Director Caroline Fredrickson told Froomkin, “It’s impossible for President Obama to nominate somebody who doesn’t have the support of the home-state senators because they won’ have the ability to move through the process,” noting that some Senate delegations “are extremely ideological and don’t consent to the idea that elections matter and that the president should have a prerogative in filling these positions.”

    Froomkin points out that this process likely could have been avoided had “Leahy followed the lead of his Republican predecessor – none other than Hatch – and treated home-state senators’ objections as merely advisory.”

    A Leahy spokeswoman defended the senator’s method saying he believed it “encourages consultation between the [White House] and home-state senators.” 

  • August 5, 2011

    In the final hours before the Senate left Washington for the August recess, the Senate confirmed four of the 24 judicial nominees ready for Senate review, and scheduled a vote for a fifth nominee upon their return in September. After the vote, American Constitution Society Executive Director Caroline Fredrickson lamented the Senate’s limited progress in getting judges confirmed, calling upon Senators to make “extraordinary efforts to expedite the pace of confirmations” with their return next month. In a statement, Senate Judicial Chairman Patrick Leahy said of this crisis, “It is not accurate to pretend that real progress is being made in these circumstances. Vacancies are being kept high, consensus nominees are being delayed and it is the American people and the Federal courts that are being made to suffer.”

    President Obama made two new judicial nominations this week: U.S. District Court Judge Adalberto José Jordán was nominated to the U.S. Court of Appeals for the Eleventh Circuit, and litigator Miranda Du was nominated to the U.S. District Court for the District of Nevada. There are now 56 judicial nominees awaiting confirmation.

    The judicial vacancy crisis received even more attention this week with an NPR segment on President Obama’s diverse judicial nominees, featuring Fredrickson. "Obama is nominating many more diverse nominees than his predecessors ... strikingly so," Fredrickson told NPR. "But the nominees are not getting confirmed with the same kind of success."

  • August 5, 2011
    Guest Post

    By Steve Sanders, visiting assistant professor, University of Michigan Law School


    The political media are about to begin obsessing over the Iowa Republican straw poll, scheduled for Saturday, August 13.  Recent commentary has focused on how religious conservatives have gained a chokehold on Iowa GOP politics.  Evangelical Christian activists remain outraged at the 2009 decision of the Iowa Supreme Court to legalize same-sex marriage.  Last fall, they mounted a well-funded campaign to oust three of the justices who signed that ruling.  Their TV ads  – juxtaposing footage of villainish-looking "liberal, out of control judges" against images of hunters in camouflage and a chubby kid saluting the flag – accused the justices of "ignoring our traditional values" and "imposing their own values."

    Now, activist Bob Vander Plaats, who led the anti-court jihad, is pressuring presidential candidates to sign something called "The Marriage Vow," which includes a pledge of "[v]igorous opposition to any redefinition of the Institution of Marriage – faithful monogamy between one man and one woman – through statutory-, bureaucratic-, or court-imposed recognition of intimate unions which are bigamous, polygamous, polyandrous, same-sex, etc."  Religious-right darlings Michele Bachmann and Rick Santorum were the first candidates to enthusiastically sign up.

    The picture of Iowa we get from the mainstream media through next year's caucuses is likely to be of a state in the grip of militant Tea Partiers and theocrats.  That would be a shame, because the agenda of these particular activists – with their narrow view of social equality and hostility toward an independent judiciary – is unfaithful to the state's social and legal heritage.

  • August 4, 2011
    Guest Post

    By Edgar James and Danny Rosenthal, who practice airline and rail labor law in Washington, D.C. Both are ACS members.  


    Although Congress has apparently reached a deal to temporarily end the Federal Aviation Administration (FAA) shutdown, the larger fight over FAA funding continues as Democrats and Republicans wrangle over a permanent extension of funding. The key holdup revolves around a basic question of democracy and a relatively unknown federal agency. The question is this:  For a union to be elected at a railroad or airline, should approval be required by a majority of those who cast votes or, instead, by a majority of all eligible voters?  The agency is the National Mediation Board, which conducts elections to determine if workers in the airline and railroad industries wish to become unionized.  (In other industries, elections are conducted by the Board’s more famous cousin, the National Labor Relations Board.) 

    The current standoff can be traced to May 2010, when the National Mediation Board amended its regulations regarding elections. By federal statute, the Board has the authority to choose “any appropriate method” for conducting elections. Until last year, the Board’s general policy was to require approval by a majority of all eligible voters in order to certify a union.  But this approach had serious problems. It assumed that non-voting employees were against unionization when they might simply have been uninterested or unable to vote.  In many elections, the voting rolls included furloughed employees who had not been active for years.  So the Board changed its policy after a period for notice and comment. The change was approved by two of the Board’s three members, one Obama appointee and one Bush appointee (re-nominated by Obama in 2009).  

    Of course, airlines didn’t like the new rule.  Delta, under investigation by the Board, was the biggest opponent. Today, Republicans, backed by a variety of conservative allies, are insisting that any permanent FAA reauthorization include a provision overturning the regulation.  While it’s not the only issue in the standoff, observers have identified it as the “real dealbreaker” and the “big issue” preventing a resolution. 

    The Republicans’ main argument against the regulation is that it reversed 75 years of Board policy. That’s what Congressman John Mica (R-Fla.), chairman of the House transportation committee, said in a statement following the enactment of the regulation. It’s also how conservative commentators have blasted the new policy. But it’s not a convincing argument.