Caroline Fredrickson

  • November 30, 2016

    by Caroline Fredrickson

    President-elect Trump posted one outlandish tweet after another all the way to the White House. But his latest tweet on flag-burning topped most of the others.

    On Nov. 29, Trump tweeted:

    Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!

    The tone and text of the post read like something that a ruler from a bygone era without the checks and balances of the U.S. Constitution would say.  Most alarming is the sweeping and ominous part about “consequences.” Fortunately, a chorus of critics checked Trump.

    The very next day, both The New York Times and The Washington Post editorialized against Trump’s tweet.  The headline in the Post’s View summed up the problem, “In one tweet, Trump trashes two constitutional amendments.”

    In 140 characters, the next president knocked the First and 14th Amendments. The Supreme Court ruled almost three decades ago that burning a flag is protected speech under the First Amendment. Ironically, Trump’s model of the ideal Supreme Court Justice, the late Antonin Scalia, joined the majority decision in the 1989 case, Texas v. Johnson.

    Even Senate Majority Leader Mitch McConnell (R-Ky.) and House Majority Leader Kevin McCarthy (R-Calif.) chimed in right after the tweet to educate the public and president-elect about the First Amendment protection. Both members of Congress felt compelled to voice their support for this protected speech. McCarthy tried to shut down the debate by stating the unlikelihood of congressional action.

  • November 3, 2016

    by Caroline Fredrickson

    Let’s project past the partisan noise and hand-wringing of the Nov. 8 election. It is never too early to take stock of judicial nominations in the post-election lame duck session of Congress. 

    Since Senators left the Capitol in September, vacant seats on the federal bench quietly keep growing. On Oct. 31, Judge Donovan Frank of the District of Minnesota retired from a full-time caseload, creating the second vacancy in one of the busiest courthouses in the nation. This seat has been designated a judicial emergency by the Administrative Office for U.S. Courts and is the second one for this District alone. Senators Amy Klobuchar (D-Minn.) and Al Franken (D-Minn.) promptly announced their process for filling these vacancies.

    Now Minnesota has only five full-time federal district court judges. When fully staffed, it has seven. This smaller bench translates into larger caseloads for remaining judges and longer wait times for anyone seeking justice. 

    For a second year in a row, this court will operate with a minimum of one vacancy. The court last year had a vacancy for six months. In a bit of good news, the Senate confirmed Judge Wilhelmina Wright, the first female African American federal judge in Minnesota, to fill the vacancy this past January.

  • October 26, 2016

    by Caroline Fredrickson

    Suddenly, in the span of just a few days, three senators broke rank with the 54-member majority who has denied any action on judicial nominations. It is too early to tell if this shift is a sideshow producing headlines in the Salt Lake Tribune and Politico or the beginning of the end of gridlock in the post-election lame duck session of Congress.

    Whatever the outcome in the coming weeks, #DoYourJob is not a strong enough hashtag to chronicle the constitutional crisis created by the senate blockade against President Obama’s 110 judicial nominations.  More than 10 percent of the federal bench is vacant. 

    To put this number in perspective, compare Obama’s vacancy rate of 10.8 percent with President George W. Bush’s 3.7 percent at this same point in his eighth year.  This is a virtual shutdown of the third branch of government as the second branch denies its constitutional duty to give “advice and consent” on nominees by the first branch. 

    Chatter about a constitutional crisis sounds overblown until you recall statements made by Senate Majority Leader Mitch McConnell (R-Ky.) and Sens. Orrin Hatch (R-Utah), Chuck Grassley (R-Iowa) and John McCain (R-Ariz.) regarding Obama’s nominee to the Supreme Court, Chief Judge Merrick Garland.

    Remember in February, barely an hour after the death of Justice Antonin Scalia, Senate Majority Leader Mitch McConnell stunned many with an historic announcement that the next president should fill the vacancy on the Court. McConnell reasoned that with a possible shift in the ideological bent of the Supreme Court the people should have a voice in the selection of the ninth justice.  This logic ignores the fact that voters do not elect Supreme Court justices.

  • October 19, 2016

    by Caroline Fredrickson

    From First Lady Michelle Obama’s speech in New Hampshire to accusations by Fox News’ Gretchen Carlson against Roger Ailes, sexual harassment and sexual assault have been dominating the headlines for months. 

    Also in the news has been the topic of forced arbitration agreements that limit victims’ ability to have their day in court. Very much a part of the Wells Fargo scandal has been the bank’s argument that it shouldn't have to face its clients at trial.

    These two stories actually have more in common than is often mentioned. First, of course, Fox tried to shut down Carlson’s suit by saying her contract’s arbitration clause prevented her from using that public forum. Few realize how common it is for women and men who allege harassment at work to be shunted into a secretive process that often prioritizes the interests of the employer.

    As I described in my book, Under the Bus: How Working Women Are Being Run Over, while many Americans may think that they can always bring a lawsuit if their employer violates the law, for almost a third of nonunion workers (or approximately 36 million people) that is no longer true. Using a new weapon to undermine workers’ rights, more and more companies are forcing prospective and current employees to sign away their right to sue in order to get hired or to avoid being fired and to agree that all disputes will be resolved in private arbitration, rather than in normal courts.

  • October 13, 2016

    by Caroline Fredrickson

    “This is not an election about who’s going to be president just for the next four years. This is an election about the direction of the Supreme Court for the next 40 years”

    Senator Chuck Grassley (R-Iowa)
    The Gazette

    Senator Grassley nicely sums up the importance of Nov. 8.

    If I had to quibble with his quote, I would add that with more than 10 percent of the judgeships vacant in the lower courts this is an election about the direction of the third branch of the federal government for the next generation. 

    Fortunately, the Presidential Commission on Debates announced that Fox News’s Chris Wallace has selected the Supreme Court as one topic for the final debate. But the list of topics is “subject to possible changes because of news developments.” The Supreme Court deserves to be topic A.

    Many articles have documented the proxy fight over the federal courts. But it bears repeating that the election results may continue an almost 50-year run of a conservative majority on the Supreme Court or begin a new period with a more progressive majority.

    Since February, the Court has been ideologically split down the middle with four conservative justices and the same number of progressives. This past month Justice Elena Kagan offered one of the best explanations, that I have heard, on why we need a ninth justice. During a September 16th event at Harvard Law School, Dean Martha Minow asked Justice Kagan about her experience on a Court that has no tie-breaking vote. Below is Kagan’s answer: