January 2013

  • January 31, 2013

    by Jeremy Leaming

    Alabama officials seeking to gut the landmark Voting Rights Act of 1965 claim racial discrimination in voting is no longer a problem in their state. Specifically officials in Shelby County, Ala., a largely white county, are urging the U.S. Supreme Court to find Section 5, the law’s major enforcement provision, unconstitutional.

    The NAACP Legal Defense & Education Fund (LDF), representing voters in Alabama, is waging a vigorous defense of what many consider one of the nation’s most important and effective civil rights law. In its recently filed brief, the group urges the high court to uphold Section of 5 arguing that “racial discrimination in voting is ‘not ancient history.’” The Court will hear oral argument in Shelby County v. Holder on Feb. 27.  

    Section 5 requires certain states and localities, mostly in the South, with long histories of racial discrimination in voting to obtain “preclearance” from the Department of Justice or a federal court in Washington, D.C. for changes to elections procedures. LDF, in its brief, says Section 5 “remains essential to safeguard our democracy from racial discrimination. The record documents hundreds of examples of persistent unconstitutional efforts by covered States and localities to deny or abridge the right to vote on account of race, including widespread efforts to circumvent remedies imposed for prior VRA violations, which were only blocked by Section 5.” (Click picture to enlarge to show covered jurisdictions of Section 5.)

    Earlier this month, Alabama Attorney General Luther Strange filed a brief in the Shelby County case supporting the County officials. The state still grapples with “race relations issues, but they are the same kind of issues every state currently is endeavoring to solve,” Strange argues in his brief.

    LDF’s brief states there is ample evidence “of ongoing voting discrimination in Alabama specifically, and the covered jurisdictions generally, exceeds, by many orders of magnitude, that in the non-covered jurisdictions. Shelby County studiously avoids this evidence; instead, it selectively points to individual jurisdictions outside of Alabama that it asserts should not be covered.”

  • January 30, 2013
    Guest Post

    by Russell Wheeler, Visiting Fellow, The Brookings Institution

    My recent ACS Issues Brief was not overly optimistic about the likely efficacy of various proposals to speed the nomination and confirmation of district and circuit judges in President Obama’s second term. Any significant changes, for that matter, stand little chance of adoption in the midst of contentious confirmation battles.

    A modest change to Senate procedures, though, adopted after the Brief was prepared, may shorten the time between district nominees’ Judiciary Committee hearings and any floor votes to confirm the nominations.

    Judicial nomination processing times in Obama’s first term increased substantially over those in the first terms of Presidents Clinton and Bush -- 223 days on average from nomination to confirmation for district judges, compared to 93 days for Clinton’s first term district appointees and 155 for Bush’s. And unlike in the Clinton and Bush first terms, the bulk of the time that Obama’s appointees waited came after their Judiciary Committee hearings. Once Clinton’s appointees got hearings, they waited only 30 days for their confirmation votes. Bush’s district appointees waited 54 days. Obama’s first term district appointees, by contrast, waited an average of 142 days.

    Near-eight month average wait times from nomination to confirmation have several deleterious effects, especially when combined with the over a year wait time on average between the vacancy (or its announcement) and the nomination. For one thing, obviously, a vacant judgeship is not a productive judgeship. Moreover the time potential nominees wait as senators and the White House jostle over whom to nominate, and the time actual nominees spend waiting for hearings and floor votes, can put their professional lives in limbo. Potential clients will be wary of signing on with a lawyer who’s being talked about for a judgeship, much less one whose nomination is before the Senate. Even state judges, term-limited federal judges, and government and public defender lawyers may be reluctant to become the object of extended delay and public speculation. In short, the nomination and confirmation process discourages some quality potential judges from putting themselves forward as candidates and thus serves itself as a barrier to filling vacancies.

  • January 30, 2013

    by Jeremy Leaming

    Sen. Chuck Grassley (R-Iowa) may believe the president has turned the Second Amendment on its head with a push for proposals to curb gun violence, but he’d do well to learn a bit more about the parameters of the amendment.

    A good place to start would be a succinct letter signed by some of the nation’s leading constitutional law scholars that notes the Supreme Court has acknowledged the “presumptive constitutionality of laws designed to prevent gun violence, including restrictions on who has access to firearms and what types of firearms that they may have ….”

    Grassley’s comments about the president’s call for new gun control measures came during today’s Senate Judiciary Committee hearing on gun violence. Grassley revealed his opposition to proposals to limit high-capacity ammunition magazines and suggested that violent video games are more responsible for mass shootings in the nation than easy access to military-style weapons.

    UCLA Law School Professor Adam Winkler and University of Chicago Law School Professor Geoffrey R. Stone crafted a statement on the constitutionality of certain measures to curb gun violence. As this blog has noted on more than one occasion the Second Amendment does not provide for an unlimited individual right to bear arms. The professors’ statement, signed by more than 45 law school professors, notes that as well. (Winkler is the adviser to the ACS UCLA law student chapter, and Stone is former chair of the ACS Board of Directors. Winkler is also author of the influential book, Gunfight: The Battle over the Right to Bear Arms in America.)

    Citing D.C. v. Heller, in which the high court found an individual right to own guns, the professors’ statement says in Heller Justice Antonin Scalia recognized that like other constitutional rights, “the Second Amendment is not absolute. The First Amendment, for example, provides that ‘Congress shall make no law … abridging the freedom of speech,’ but the Supreme Court has long and consistently held that some types of speech – for example, defamation, obscenity and threats – can be regulated; that some people – for example, public employees, members of the military, students and prisoners – are subject to greater restrictions on their speech than others; and that the government can reasonably regulate the time, place and manner of speech. As Justice Scalia explained in Heller, the rights guaranteed by the Second Amendment are likewise subject to appropriate regulation in order to enhance public safety.”

    The statement, available here, goes onto to argue that proposals like universal background checks, regulation of high-capacity ammunition magazines and military-style assault weapons are “clearly consistent with the Second Amendment.” The professors, add that they have “no view on the effectiveness or desirability of the policies reflected in the various proposals, but we all agree that none infringes on the core right identified in by the Court in Heller.”

  • January 29, 2013

    by Jeremy Leaming

    President Obama lauded bipartisan Senate work on immigration reform, but went further by calling for a clearer path to citizenship for 11 million undocumented immigrants, without tying it to rigid border security measures.

    From Las Vegas, the president warned of a pitched battle as reform proposals advance, saying, “We can’t allow immigration reform to get bogged down in an endless debate. We’ve been debating this a very long time.”

    The New York Times reported that the White House “is also proposing that the United States treat same-sex couples the same as other families, meaning that people would be able to use their relationship as a basis to obtain a visa.”

    During his speech, Obama said, “Think about it – we define ourselves as a nation of immigrants. That’s who we are – in our bones. The promise we see in those who come here from every corner of the globe, that’s always been one of our greatest strengths. It keeps our workforce young. It keeps our country on the cutting edge. And it’s helped the greatest economic engine the world has ever known.” (Video of speech available by clickng picture.)

    Longtime advocates of immigration reform like MALDEF sounded a cautiously optimistic note, and offered praise of the president’s speech.

    MALDEF President and General Counsel Thomas A. Saenz said, the president “directly challenged all of us to put aside exclusionary xenophobia and to recognize our common immigrant heritage and our common mission of serving family and country."

    Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), who will conduct a hearing on immigration reform following the State of the Union Address, said in a press statement that he was “particularly pleased to see that the president’s proposal includes better access to visas for victims of domestic and sexual violence, improved laws for refugees and asylum seekers, an enhanced investor visa program, and the assurance that every family, including binational gay and lesbian spouses, receives equal treatment under the law.”

    Right-wing groups have long fought immigration reform and many aren’t likely to halt their efforts to scuttle reform. Rush Limbaugh, right-wing radio host, said he and Fox News must step up to destroy reform.

  • January 29, 2013

    by Jeremy Leaming

    Out shilling yet another book, the right-wing Supreme Court Justice Antonin Scalia took yet another opportunity to repeat a line that is beyond tiresome. The U.S. Constitution is dead, Scalia said. Actually he said it was “dead, dead, dead.”

    Scalia has long taken umbrage with folks who refer to the nation’s governing document as a living one. In his talk at Southern Methodist University, Scalia expressed exasperation with schoolchildren who visit the high court and refer to a living Constitution. “It’s not a living document,” Scalia said. “It’s dead, dead, dead.”

    The justice has repeated this refrain too many times to count. (In fall 2011, he told a Senate committee that he hoped the “living constitution would die.”) So we understand that Scalia does not believe the Constitution provides liberty for women to make certain health care decisions, such as whether to have an abortion, or for marriage equality.

    Scalia argues that if you interpret the Constitution as an originalist you cannot come to the conclusion that liberty is that broad. Proponents of originalism argue that the Constitution’s text must be interpreted in a way the text was understood by the people who created the document’s language.

    Many others, however, have noted,  with increasing frequency that Scalia is an originalist only when it suits his ideology. Last year, UCLA law school professor Adam Winkler said “Scalia’s orginalism is a charade.”

    There are other ways to talk about the Constitution’s genius, however, that do not readily play into Scalia’s narrative. For instance in Keeping Faith with the Constitution, Goodwin Liu, Pamela S. Karlan and Christopher H. Schroeder explain why constitutional interpretation should be “faithful to what the Constitution is: not a legal code, not a lawyer’s contract, but a basic charter of government whose practical meaning arises from the continual adaptation of its enduring text and principles to the conditions and challenges facing each generation.”

    The authors continue:

    Preserving the document’s meaning and its democratic legitimacy requires us to interpret it in light of the conditions and challenges faced by succeeding generations. We use the term constitutional fidelity to describe this approach. To be faithful to the Constitution is to interpret its words and to apply its principles in ways that sustain their vitality over time. Fidelity to the Constitution requires judges to ask not how its general principles would have applied in 1789 or 1868, but rather how those principles should be applied today in order to preserve their power and meaning in light of concerns, conditions, and evolving norms of society. As Jack Balkin has put it, ‘if each generation is to be faithful to the Constitution and adopt the Constitution’s text and principles as its own, it must take responsibility for interpreting the implementing the Constitution in its own era.’

    The entire book is available here. It’s an accessible and short read and offers a strong counter to a tired refrain about a “dead” Constitution that is somehow relevant today.