February 2012

  • February 21, 2012
    Guest Post

    By Alex Kreitassociate professor of law and director of the Center for Law and Social Justice at Thomas Jefferson School of Law. Kreit is also the chair of the American Constitution Society’s San Diego Lawyer Chapter.


    Tomorrow, the Supreme Court will be hearing oral argument on an unusual double jeopardy issue in Blueford v. Arkansas. Blueford presents the following problem: What happens if a jury orally announces in Court that it has voted “unanimous against” guilt on Charges A and B, is sent back to continue deliberating about lesser-included Charge C without a verdict being entered as to A and B, and finally deadlocks. Can the government retry the defendant on Charges A and B?

    The facts of the case are heartbreaking: Blueford’s then live-in girlfriend left her 19-month-old son McFadden in Blueford’s care while she went to run some errands. Soon after, the baby suffered a serious head injury. He was taken to the hospital and died days later. The injury’s cause was hotly contested at trial. The prosecution’s theory — based on expert testimony and evasive conduct by Blueford following the incident — was that Blueford had slammed the child to a mattress on the floor. Blueford testified that the injury resulted from an accident. According to Blueford, McFadden had grabbed hold of a lit cigarette and brought it near Blueford’s face from behind. This startled Blueford and led him to jump, striking McFadden in the process. The defense presented two medical expert witnesses of its own in support of Blueford’s account.

    The trial court instructed the jury on capital murder and three lesser-included offenses: first-degree murder, manslaughter, and negligent homicide. The court told the jurors that they should consider the charges one at a time, starting with the most serious. Only if the jury had a “reasonable doubt of the defendant’s guilt on the charge of capital murder” should it go onto to consider the lesser-included offense of first-degree murder, and so on. 

  • February 20, 2012

    by Nicole Flatow

    In a U.S. Supreme Court order issued Friday, two of the justices called for review of the controversial decision in Citizens United v. FEC “in light of the huge sums currently deployed to buy candidates’ allegiance.”

    The high court issued a stay to block a Montana Supreme Court ruling that upheld a state campaign finance law. The stay allows previously prohibited corporate election spending to occur while the court considers whether to review the state’s decision.

    But as part of the order, Justice Ruth Bader Ginsburg issued a statement, joined by Justice Stephen Breyer, calling for the court to grant certiorari so that the justices may consider whether  Citizens United “should continue to hold sway.”

    “Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, … make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption,’” they write, quoting from the opinion.

    In a column for Slate, U.C. Irvine law professor Richard Hasen points out that Ginsburg’s selection of that particular passage from the decision exposes “the false premise at the heart of the Citizens United case.”

  • February 20, 2012

    by Jeremy Leaming

    While some lawmakers and politicians are working to end a few of the nation’s inequalities, like the one centering on the right of gays and lesbians to wed, others are keeping up the ignoble work of trying to hobble or defeat efforts to advance equality.

    For example, in many of the states where marriage equality is advancing, special interest groups have mounted, or in the midst of doing so, campaigns to ensure that government recognition of marriage belongs exclusively to men and women.

    After Washington Gov. Chris Gregoire enacted marriage equality legislation, social conservatives promised to gather enough signatures to place the newly gained civil liberty before the voters. N.J. Gov. Chris Christie has endorsed placing civil liberties before the voters when he vetoed a bill allowing lesbians and gays to wed. (Newark, N.J. Mayor Cory Booker took issue with Christie’s tactic, saying equal rights should never be placed before the whims of the majority.)

    Religious right groups are also promising to topple the effort by Maryland to allow same-sex marriage. The Maryland Marriage Alliance, which calls itself a an “interfaith coalition dedicated” to keeping marriage an exclusive institution, has promised to launch a petition movement to place the law before voters, provided it passes the Maryland Senate and is signed by Gov. Martin O’Malley, both highly likely. The Maryland Senate passed a similar measure last year, and O’Malley (pictured) has said he would sign the new measure. The governor has also upped his involvement this time around – he’s sponsoring the equality legislation that is moving through the legislature.

    Following the approval last week by the Md. House of Delegates, O’Malley applauded the outcome, saying the chamber had “voted for human dignity.”

    The marriage alliance, a gathering of primarily evangelical Christian groups, issued a press statement decrying the House’s vote as undermining the exclusive definition of marriage and noting, “thankfully,” that the state “allows for a referendum process by a people’s vote, and we are committed, if needed, to bring this issue to the vote of the people of Maryland.”

    Like the law enacted last year in New York, the Maryland marriage equality measure includes a provision granting an exemption for houses of worship to refuse to marry lesbians and gays. The Maryland Senate is expected, The Washington Post reports, to promptly take up the equality bill. The newspaper says the senate’s Judicial Proceedings Committee and the full chamber “quickly could approve the bill” with the possibility of sending it to O’Malley by week’s end. The state is moving quickly to become the eighth one to allow lesbians and gays to wed, joining Washington, New York, Massachusetts, Connecticut, New Hampshire, Vermont, and Iowa. The District of Columbia also recognizes same-sex marriage.

  • February 17, 2012
    Senate Majority Leader Harry Reid (D-Nev.) overcame a filibuster of Adalberto Jose Jordán to the U.S. Court of Appeals for the Eleventh Circuit and secured his confirmation by a vote of 94-5. Reid had filed a motion to invoke cloture and force a vote on his nomination, and senators approved the motion 89-5. But Sen. Rand Paul (R-Ky.), seeking to gain leverage for an unrelated proposal to cut off aid to Egypt until American detainees are released, exploited a procedural rule and refused to consent to a vote before the permitted 30 hours for “debate” had lapsed. One hundred and ninety seven days elapsed between his nomination and confirmation.
     
    Just after the vote that finally confirmed Jordán, Reid filed a motion to invoke cloture on another nominee, federal prosecutor Jesse Furman, to be a judge on the Southern District of New York. Before the vote to invoke cloture, Furman opponents dropped their opposition and permitted an up-or-down vote. His nomination was confirmed 62-34. When in committee, Furman’s confirmation received unanimous support from all members, both Democrats and Republicans. Among the 34 senators to vote against him on the Senate floor were Sen. Charles Grassley (R-Iowa), Sen. Orin Hatch (R-Utah), Sen. John Cornyn (R-Texas), Sen. Mike Lee (R-Utah) and Sen. Tom Coburn (R-Okla.), all Senate Judiciary Committee members who had previously not opposed his confirmation.
     
    Following the vote, Sen. Patrick Leahy (D-Vt.), the chairman of the Senate Judiciary Committee, said, “I commend the Majority Leader for pressing forward to obtain a vote on the nomination of Jesse Furman, finally bringing to an end the 5-month Republican filibuster of this nomination. It should not have taken five months and the filing of a cloture petition to secure a vote on this superbly qualified, consensus nominee.” 
     
    The Senate Judiciary Committee also held a hearing Wednesday for one circuit court and three district court nominees. The next day, the committee held over the nomination of one circuit court nominee and reported out four district court nominees, with Sen. Mike Lee (R-Utah) voting in the negative on each.
     
    Finally, the president continues to nominate federal judges, especially those who would fill judicial emergencies. He nominated Jill A. Pryor, an Atlanta-based litigator, to fill a judicial emergency on the U.S. Court of Appeals for the Eleventh Circuit. In January, Georgia Republican Sens. Johnny Isakson and Saxby Chambliss indicated that they support her nomination to the federal judiciary. He also nominated Elissa F. Cadish to the U.S. District Court for the District of Nevada, Paul William Grimm to the U.S. District Court for the District of Maryland, and Mark E. Walker to the U.S. District Court for the Northern District of Florida.
  • February 17, 2012

    by Nicole Flatow

    With the election year underway and 103 current and future vacancies plaguing the federal courts, Senate Majority Leader Harry Reid is making headway in an aggressive push to force votes on long-pending judicial nominees.

    On Wednesday, he successfully pushed through the nomination of Adalberto Jose Jordán to the U.S. Court of Appeals for the Eleventh Circuit, even as Sen. Rand Paul forced the 30 hours of debate to elapse before the final vote to confirm Jordán 94-5.

    And on Thursday night, Reid was successful in securing confirmation of another nominee, Jesse Furman, to the Southern District of New York. Reid filed a motion to invoke cloture on his nomination Wednesday, but the Senate opted not to vote on the cloture motion, and to simply hold an up-or-down vote.

    Both Jordán and Furman are consensus nominees -- both were approved by the Judiciary Committee with absolutely no opposition, and both have been ripe for an immediate vote since before the Senate left for the winter recess.

    They are just two examples of the many highly qualified consensus nominees who have been pending for months on the Senate calendar.