October 2011

  • October 31, 2011

    by Nicole Flatow

    The vast majority of criminal cases end in plea bargains, yet the scope of a defendant’s constitutional right to counsel during the plea bargaining stage remains uncertain, with two cases before the Supreme Court today addressing this issue.

    The Court’s decisions in those two casesLafler v. Cooper and Missouri v. Frye, "could go a long way to ensuring that the right to counsel is meaningful during plea negotiations,” write The Constitution Project’s Mary Schmid Mergler and Christopher Durocher in an ACSblog guest post previewing these and other right-to-counsel cases this term.

    Today, nearly 95 percent of criminal cases are resolved through pleas rather than trial, making the effective assistance of counsel during plea negotiations essential,” they write.

  • October 31, 2011

    by Jeremy Leaming

    Leading House Democrats are urging the Judiciary Committee to conduct a hearing on a raft of new state laws that they say could bar millions of voters from participating in next year’s general election.

    Citing a recent report examining the new laws, passed primarily by Republican-controlled statehouses, Reps. John Conyers Jr., ranking member of the Committee on the Judiciary, and Jerrold Nadler, ranking member of the Subcommittee on the Constitution, are calling on Republican Chairman of the Committee on the Judiciary Lamar Smith to “schedule hearings soon to address an issue so critical to our democracy.”

    The lawmakers’ letter cites a report issued earlier this month by the Brennan Center for Justice that concludes that the set of new stringent voter registration laws could affect “more than 5 million voters ….” As The New York Times reported in early October, the Brennan Center study said the new laws “could make it significantly harder for more than five million eligible voters to cast ballots in 2012.”

    Many Republicans have long claimed that stricter voter registration laws are needed to confront rampant voter fraud. But the Brennan Center and Reps. Conyers (pictured) and Nadler say there is no evidence that such fraud exists.

    The Brennan Center’s Executive Director Michael Waldman told The Times that the new laws are really intended to make it much more difficult for African Americans, young and poor voters to cast ballots in the 2012 presidential election. Waldman said the new laws represent “the most significant rollback in voting rights in decades.”

    In a column for Slate, Dahlia Lithwick and University of Virginia law school professor Risa L. Goluboff note the “ugly parallels between Jim Crow and modern vote-suppression laws.”

    The letter from Conyers and Nadler noted that the provisions requiring photo identification, excluding common forms of identification, such as student IDs and social security cards, and requiring proof of citizenship raise the “most serious concerns.”

    Citing the Brennan Center report called “Voting Law Changes in 2012,” the congressmen say the new voting law changes “will have a particularly significant impact on minority voters. The report concluded that African American and Hispanic voters were more likely to take advantage of early voting opportunities and register to vote through the types of voter registration drives now curtailed or eliminated by the new laws.”

    The two continue:

    Most critically, the Report noted that many of the new voter identification laws do not allow voters to present many forms of identification frequently used by minorities, the elderly, and the young. For example, the new Texas law allows for the use of a concealed carry gun permit to vote, but fails to recognize student IDs, Texas Veterans’ Administration identification and event Congressional identification. Further, Texas citizens must also spend $22 to obtain a birth certificate or up to $145 to obtain a passport to present the documentation necessary to acquire a form of ID required to cast a ballot.

    The letter also cites examples “of the anti-democratic impact of these new laws….” The two report, for example, that under Tennessee’s new voter registration law a 96-year old woman was denied a voter registration card because her birth certificate included her maiden name, “rather than her married name.”

    See the lawmakers’ entire letter here.

  • October 28, 2011

    With the Senate convening only for pro forma sessions this week, neither the full Senate nor the Senate Judiciary Committee officially met to discuss judicial nominations.

    However, this did not stop Sen. John McCain (R-Ariz.) from revealing this week that he has privately warned his Republican colleagues not to block President Obama’s nominees, for fear that Democrats will reciprocate during a Republican presidency, Roll Call reports. “[T]he president deserves to have his nominee unless there is a compelling reason not to,” McCain said.

    This Monday, the Senate will vote on the president’s nomination of Stephen A. Higginson to be a U.S. Circuit Judge for the Fifth Circuit. Higginson was nominated in May and the Senate Judiciary Committee voted him out in July unopposed by a voice vote. The seat for which he has been nominated has been vacant since September of last year.

  • October 28, 2011
    Guest Post

    By Jamie Raskin, a professor of constitutional law at American University Washington College of Law and a Maryland State Senator. He is teaching at Yale Law School this semester and is a Senior Fellow at People for the American Way, which will publish his comprehensive report on Robert Bork next week.  


    Joe Nocera’s recent New York Times column had an intriguing headline: “The Ugliness Started With Bork.”

    But to which ugly events did this headline refer?

    I assumed it was a reference to Bork’s infamous 1963 New Republic article in which he denounced the Civil Rights Movement’s push for anti-discrimination laws in public accommodations, like restaurants and motels, as a violation of the right of business owners to exclude people they do not wish to associate with. Forcing business owners to serve members of minority groups, Bork wrote, “is itself a principle of unsurpassed ugliness.”

    Perhaps the headline was a catch-all characterization of everything Bork has written since he left the bench in 1987 to become a right-wing polemicist -- for example, his admiring words for Chilean dictator Augusto Pinochet or his endorsement of the stab-in-the-back thesis relating to the Vietnam War. Or maybe his attacks on the “rot and decadence” of American society, a “fact” about which “there can be no dispute.” In his book-length assault on American culture, Slouching Toward Gomorrah, he writes: “What America increasingly produces and distributes is now propaganda for every perversion and obscenity imaginable.” 

    Ugly, no?

  • October 28, 2011

    by Jeremy Leaming

    Some cable news carnival barkers and some right-wing activists have spent plenty of time tarring Occupy Wall Street as a scrambled movement of brain-addled youth with no agenda and more recently as socialist tools demanding more government largesse.

    But, as Slate’s Dahlia Lithwick writes, OWS protestors really shouldn’t and likely don’t give a flip about the know-nothings of some cable news programs.

    “Occupy Wall Street is not a movement without a message,” Lithwick writes. “It’s a movement that has wisely shunned the one-note, pre-chewed, simple-minded messaging required for cable television as it now exists. It’s a movement that feels no need to explain anything to the powers that be, although it is deftly changing the way we explain ourselves to one another.”

    She continues:

    For the past several years, while the mainstream media was dutifully reporting on all things Kardashian or (more recently) a wholly manufactured debt-ceiling crisis, ordinary people were losing their health care, their homes, their jobs, and their savings. Those people have taken that narrative to Facebook and Twitter—just as citizens took to those alternative forms of media throughout the Middle East as part of the Arab Spring. And just to be clear: They aren’t holding up signs that say “I want Bill O’Reilly’s stuff.” They aren’t holding up signs that say “I am animated by toxic levels of envy and entitlement.” They are holding up signs that are perfectly and intrinsically clear: They want accountability for the banks that took their money, they want to end corporate control of government. They want their jobs back. They would like to feed their children. They want -- wait, no, we want -- to be heard by a media that has devoted four mind-numbing years to channeling and interpreting every word uttered by a member of the Palin family while ignoring the voices of everyone else.

    As noted numerous times on this blog, a growing chorus of economists has tracked the enormous redistribution of wealth that has flowed to the country’s top 1 percent. As Dean Baker, of the Center for Economic and Policy Research, noted earlier this month, our economic system, “even when it is working, has been rigged to redistribute the income to the rich.”