September 2011

  • September 21, 2011
    Guest Post

    By Matt Kaiser, an attorney at The Kaiser Law Firm PLLC. Mr. Kaiser blogs at Federal Criminal Appeals Blog.


    Reason magazine recently featured an article on President Barack Obama and the drug war. The title, albeit in rather hyperbolic fashion, says it all – “Bummer.”

    Many of us thought that when Obama came into office the war on drugs would be different.  Reason’s Jacob Sullum, in his article, “Bummer,” however, takes Obama to task for not living up to the expectations of those who want our national drug policy reformed. I think, though, that Sullum goes a little too far.

    The reasons for desperately needing reform are many and existed well before Obama came to office. Mandatory minimums are too harsh and hurt too many low-level participants in the drug trade. Our incarceration rates lead the world – perhaps the most verifiable form of American Exceptionalism we have. We are spending ourselves into oblivion both domestically and abroad. And, apparently, 65 percent of us think that the war on drugs is a failure.

    Before he became president, Obama knew our drug policy needed to change. As a candidate for the United States Senate, he described our war on drugs as an “utter failure.” As an Illinois state senator he said that “we can’t continue to incarcerate ourselves out of the drug crisis.” As he was gearing up to run for President, he advocated a “public health” approach to our nation’s problem with narcotics.

    Sullum paints Obama too negatively – viewed properly, I think the president’s record has been a mixed bag.

  • September 20, 2011
    Guest Post

    By Glenn Sugameli, Staff Attorney, Defenders of Wildlife's Judging the Environment. Sugameli founded in 2001 and still heads the environmental community's Judging the Environment project and website on federal judicial nominations and related issues.


    Justice delayed has become justice denied, as continuing, unjustifiable Senate obstruction of consensus federal judicial nominees delays resolution of urgent health, safety, environmental, and other cases.

    Incredibly, Senate Floor votes on 27 judicial nominees are being blocked, four more than I decried in my September 2010 ACSblog guest post, "Federal Judicial Vacancy Crisis Deepens as Unnamed Senate Republicans Block Floor Votes on All 23 Pending Judicial Nominees."  By next week, the Senate Judiciary Committee will raise the total to 32 by approving five more consensus nominees.

    The 92 current federal court vacancies are almost 50 more than the 44 I mentioned in my December 2008 ACSblog post. There are still 21 announced future vacancies, and current vacancies that the U.S. Courts have declared to be "judicial emergencies" have increased during President Obama’s term from 20 to 35.

    A sweeping nonpartisan push to fill federal judgeships extends from Supreme Court Chief Justice Roberts and Justice Anthony M. Kennedy, to the American Bar Association and Federal Bar Association, to countless editorials boards and commentators from across the nation.

    The Judiciary Committee has only approved President Obama’s judicial nominees who have been endorsed by both home-state senators. Yet, only one circuit court judge has been confirmed since May. As Sen. Patrick Leahy (D-VT) described today, Senate agreement to confirm the first two district judges since before the August recess is merely the tip of the iceberg:

  • September 20, 2011

    by Nicole Flatow

    Whether Google’s business practices “serve consumers” or “threaten competition” will be the subject of a Senate subcommittee hearing tomorrow.

    The hearing follows the Federal Trade Commission’s announcement in June that it will begin an antitrust probe of Google to determine whether it has “abused its dominance in Web-search advertising.”

    Among the concerns the Senate Subcommittee on Antitrust, Competition Policy and Consumer Rights hearing will address is the prominence of "Google-affiliated content” in search results. For example, if a user inputs the name of a business into the Google search engine, the results page might feature a Google map or the company’s stock information via Google Finance.

    As PCWorld’s Ian Paul explains, “That may be handy for you, but the downside of Google's actions is that sites that used to get traffic from a Google search such as Mapquest, Expedia, or weather and stock information sites, lose traffic. With Google providing the answers users are looking for instead of third-party Websites, the search results for competing products are effectively demoted.”

    Google Executive Chairman Eric Schmidt, who will be the first to testify, told ABC News’ Christiane Amanpour that he is looking forward to the opportunity.

    “What we want is sort of a fast hearing on all of these issues,” he said. “I think at the moment this is more of an awareness issue. We have an opportunity to communicate what we’re doing. Senators have an opportunity to communicate their concerns and I think that’s very good.”

    Watch the hearing live at 2 p.m. eastern time tomorrow via the Senate Judiciary Committee’s webcast feed or on C-SPAN’s Capitol Hearings page.

  • September 20, 2011
    Guest Post

    By Nkechi Taifa, senior policy analyst for the Open Society Policy Center. She will discuss drug policy reform during two panel discussions at the Congressional Black Caucus Foundation’s Annual Legislative Conference this week.


    For a quarter of a century mandatory minimum sentences have resulted in egregiously severe and harsh punishments which often do not fit the crime, have racially disparate outcomes, increase overcrowding, and exacerbate prison costs. These sentences are the result of a war on drugs that has been disproportionately fought in Black and Latino communities. The impact of the war on drugs on individuals, families, and communities has been likened to a “new Jim Crow,” resulting in the mass incarceration and over-representation of people of color in the criminal justice system. 

    As a quick reminder: A mandatory minimum sentence is a prison term predetermined by Congress and automatically imposed for certain crimes, primarily drugs and firearms. It is the minimum penalty that a judge must impose. In most cases the sentence is at least five years, and often it is 10, 15, or 20 years or more, even for nonviolent first time offenders. 

    One of the problems with inflexible mandatory sentencing laws is that they are applied regardless of the role of the defendant and of other factors, which judges traditionally take into account for sentencing, such as the history and characteristics of the defendant and the likelihood of rehabilitation. 

  • September 19, 2011
    Guest Post

    By Jon Davidson, legal director of Lambda Legal


    On Tuesday, September 20th, we will celebrate the long overdue and unlamented end of Don’t Ask, Don’t Tell (DADT), the destructive and discriminatory law that prevented lesbian, bisexual and gay service members from serving their country openly. This is an amazing achievement, and one for which we need to salute the many brave LGB service members and veterans who, often at great sacrifice, stood up to institutionalized discrimination and argued that their private intimate relationships have no bearing on their fitness for military service and their willingness to make the ultimate sacrifice for our country. We also owe a debt of gratitude to the many organizations, LGBT and allied activists, and politicians who relegated this ignoble law to history.

    Lambda Legal has long battled antigay discrimination in the military, filing our first lawsuit in 1975 and representing many service members since then. In 1992, together with Northwest Women's Law Center (now known as Legal Voice) and with assistance from the National Lawyers Guild's Military Law Task Force,  Lambda Legal filed a lawsuit on behalf of decorated Army and National Guard veteran Col. Margarethe Cammermeyer who was discharged under pre-DADT regulations because of her sexual orientation. We won a favorable judgment two years later from a federal district judge who held the military’s ban violated the equal protection and due process guarantees of the U. S. Constitution. Col. Cammermeyer’s case was dramatized in the film Serving in Silence. With the ACLU, Lambda Legal also filed the first challenge to DADT, which succeeded at the trial court only to be wrongly upheld on appeal.  Most recently, Lambda Legal filed two different amicus briefs in the Log Cabin Republicans v. United States of America, a case that there can be no doubt rushed along the repeal of DADT. On Sept. 1, the Ninth Circuit heard oral argument of the appeal of the trial court’s ruling in that case finding that DADT unconstitutionally burdened the right of liberty established by our seminal Lawrence v. Texas case, by limiting service members’ freedom to engage in intimate relationships if they wanted to keep their jobs. The argument chiefly focused on whether the appeal would become moot once DADT is fully repealed, one of the principal issues addressed by our last amicus brief in the case. While I firmly believe that the district court’s declaratory judgment that DADT is unconstitutional should stand after the repeal of DADT, in light of the tenor of the questions and comments at the argument, it is possible that the Ninth Circuit will vacate that judgment or remand the case to the district court for consideration of whether the judgment should be vacated.