December 2011

  • December 15, 2011

    by Jeremy Leaming

    On Dec. 15, 1791 the Bill of Rights was ratified, making today its 220th anniversary. In November, 1941 FDR established Dec. 15 as a day to celebrate the Bill of Rights.

    The Administrative Office of the U.S. Courts is offering some resources for both students and teachers about what the late Bernard Schwartz dubbed the “classic inventory of governmental restrictions that Madison termed ‘the great rights of mankind.’”

    The Obama administration is also joining the celebration. The White House’s Bill of Rights Day proclamation reads, in part, “Throughout our country’s history, generations have risen to uphold the principles outlined in our Bill of Rights and advance equality for all Americans. The liberties we enjoy today are possible only because of these brave patriots, from the service members who have defended our freedom to the citizens who have braved billy clubs and fire hoses in the hope of extending America’s promise across lines of color and creed. On Bill of Rights Day, we celebrate this proud legacy and resolve to pass to our children an America worthy of our Founders’ vision.”

    Others are marking the day, however, by highlighting a piece of legislation – the National Defense Authorization Act (NDAA) – that they argue seriously threatens the tenets of the Bill of Rights, by greatly expanding executive power.

    The Bill of Rights Defense Committee says the NDAA “contains the most potentially oppressive national security powers we’ve seen in our lifetimes, easily worse than any Bush administration policy.”

    Writing for the ACLU’s Blog of Rights, Chris Anders says the NDAA “would authorize the president to send the military literally anywhere in the world to imprison civilians without charge or trail. Prison based on suspicion alone. The power is so sweeping that the president would be able to direct the military to use its powers within the United States itself, and even lock up American citizens without charge or trial.”

  • December 15, 2011
    Judges Under Fire
    Human Rights, Independent Judges, and the Rule of Law
    By: 
    Hon. Harold Baer Jr.

    By Harold Baer Jr., U.S. District Judge for the Southern District of New York


    As we watch the Arab spring unfold and hear the depressing stories of how the People’s Republic of China deals with human rights, Judges Under Fire: Human Rights, Independent Judges, and the Rule of Law becomes a must read. It provides insights into how the Rule of Law and an independent judiciary have fared over the last 300 years around the world. More to the point, it demonstrates what happens when judges and citizens lose track of the vital tenets to which the book is devoted.

    On that score, one can’t help but wonder how some of the newly liberated countries will fare. Will they ensure that the Rule of Law is a part of their rebirth? How sad it will be if countries like Egypt and Libya slip back into anarchy. My book provides the reader with stories of how easy it could be for that to happen, both in older established countries as well as in fledgling republics. It supports the proposition that without the Rule of Law and an independent judiciary, democracy as we know it cannot survive. It is this proposition that we must bring to the attention of the leaders of these newly liberated countries.

  • December 14, 2011

    by Jeremy Leaming

    A proposed balanced budget amendment is dead, for now. The Senate defeated two versions of the measure aimed at enshrining in the Constitution a demand that the federal government maintain a balanced budget.

    The House handily defeated a version, similar to one Congress nearly passed in 1995, last month. The Senate, however, had to vote on a so-called balanced budget amendment because of the deal reached in late summer to end the debt-ceiling debacle. The Senate, mostly along Party lines, rejected two versions of a balanced budget amendment.

    Sen. Dick Durbin, (D-Ill.), speaking from the Senate floor yesterday, said some of his colleagues “believe we should enshrine in our Constitution their views of what the federal budget should look like. They want to radically reshape our constitutional framework in order to relieve Congress of its political and moral responsibility to make tough choices about taxing and spending. They want to tie the hands of Congress on budget decisions and pass important decisions on to another branch of government, our federal judiciary.”  

    “This is not what the Founding Fathers intended,” Durbin continued. “The Constitution gives the power of the purse expressly to Congress. Fulfilling the constitutional duty carries some political risk, but we all signed up for that job. Members of Congress should not try to change the Constitution to avoid their duty to make tough and important decisions.”

    Earlier this month, Alan B. Morrison, a distinguished law professor at George Washington University, testified before a Senate panel against a balanced budget amendment. Morrison, in part, said the measures being considered would likely force the federal courts into budgetary matters. He said that “thrusting the courts into budget battles is to me, and I believe to most others who have given the matter any serious thought, a terrible idea.” Morrison’s entire testimony is available here.

    Durbin, during his floor remarks, cited Morrison’s testimony, saying, “He asked the basic question: Who is going to enforce this amendment? If in fact Congress does something in violation of the amendment, who can sue? And which court would consider it? It is a valid question because ultimately this will end up in the courts. The courts will have to make some rather unique decisions. What are the outlays and receipts of the United States? What was the gross domestic product? These are issues which many in the court may find challenging if not impossible to deal with on a timely basis.”

  • December 14, 2011

    by Jonathan Arogeti

    Adding to a growing bipartisan chorus to break the obstructionist impasse over judicial nominations in Congress, two more former government officials from the two sides of the political aisle are urging reform.

    In a Tuesday op-ed for Politico, former Rep. Tom Davis (R-Va.) notes that individual senators are holding presidential nominations “hostage,” trying to “win concession … or just to score political points.” And on the same day in an op-ed for The Hill, Bill Galston, a former senior adviser to President Clinton, notes that “an explosive uptick in ideologically driven filibusters” is “freez[ing]” congressional action.

    No Labels, a group Davis and Galston helped co-found, is unveiling a 12-point plan with one simple goal: to make Congress work. Part of the plan includes a proposal to require up-or-down votes on presidential appointments. They recommend, “[A]ll presidential nominations should be confirmed or rejected within 90 days of the nomination being received by the Senate. This time frame includes both committee and floor action. If a nominee's name is not confirmed or rejected within 90 days, the nominee would be confirmed by default.” A second proposal would fix the filibuster by requiring filibusters à la Mr. Smith Goes to Washington and end the filibuster on motions to proceed.

    Norman Ornstein, a resident scholar at the conservative American Enterprise Institute, says the Senate should feel “shame” for using delaying tactics in just the last week to halt the nomination of Caitlin Halligan to the judiciary, Richard Cordray to a consumer bureau and  Mari Carmen Aponte to an ambassadorship. These tactics notably doomed the judicial nominations of Miguel Estrada, one of President George W. Bush’s nominees, and Goodwin Liu, another judicial nominee of President Obama.

    Michael Gerhardt, a former Clinton-era official and now a law professor at the University of North Carolina Chapel Hill, and Richard Painter, a former Bush-era official and now a law professor at the University of Minnesota, published an ACS Issue Brief that proposes judicial nominations reform.

  • December 14, 2011

    by Jeremy Leaming

    A CBS program on the history of African Americans in the NFL will soon touch on the Rooney Rule, which requires teams with head coaching or general manager vacancies to interview one or more minority candidates.

    The documentary, “Third and Long: The History of African-Americans in Pro Football 1946-1989,” will include an examination of the Rooney Rule in its second installment on Dec. 25, at 4 p.m., ET.

    Cyrus Mehri, of Mehri & Skalet PLLC, will participate in that segment. Mehri & Skalet, and the late Johnnie Cochran Jr. helped spur implementation of the Rooney Rule. See here for more information about the program.

    In an ACS Issue Brief, Douglas C. Proxmire, partner at Patton Boggs LLP, wrote that after the “adoption of the Rooney Rule in December 2002, the number of African-American head coaches increased from two in 2002 to an all-time high of seven in 2006, but the numbers have leveled off since 2006.” Proxmire, however, added that the Rule “has led to some progress for other NFL minority hiring practices. In the five years since the Rooney Rule has been implemented, the number of minority hires in the NFL head coaching, assistant coaching and front offices has increased.”

    Mehri & Skalet, adds in a recent promotion of the forthcoming CBS episode that the Rooney Rule “has resulted in historic triumphs of diversity in the sport, including the hiring of Super Bowl-winning head coaches Tony Dungy and Mike Tomlin … and General Manager Jerry Reese of the Giants.”

    In late September, the NFL also expanded its efforts to promote diversity by adopting a provision stating, in part, that there “will be no discrimination in any form against any player by the Management Council, and Club or by the NFLPA [NFL Players Association] because of race, religion, national origin, sexual orientation, or activity or lack of activity on behalf of the NFLPA.”