Caroline Fredrickson

  • April 9, 2013

    by Jeremy Leaming

    Though the Senate finally confirmed Judge Patty Shwartz to a seat on the federal appellate court bench, one should hardly take that as a sign that the Republican-led band of obstructionists is ready to alter its agenda of delaying judicial nominations.

    Shwartz was confirmed to a seat on the U.S. Court of Appeals for the Third Circuit by a vote of 64 – 34. She was re-nominated earlier this year by President Obama. As Judging The Environment notes, Shwartz was originally nominated by Obama in fall 2011.

    ACS President Caroline Fredrickson, while applauding the confirmation of Shwartz, a federal magistrate judge in Newark, N.J., said the process was “all too typical for the president’s judicial nominee, and that must change.” She continued, “Filling our benches must become and remain a priority for the Senate so people can have faith in our system to guarantee every American fair and swift justice.”

    Senate Judiciary Chairman Patrick Leahy (D-Vt.) also noted the snails’ pace of confirmation for judges. Shwartz “should not have been delayed for more than a year,” he said in a statement. “Sadly, this is not an isolated case but one in a steady pattern of obstruction.”

    White House Press Secretary Jay Carney, before the vote took place, noted that nearly 400 days had passed since Shwartz’s second hearing.

    Carney said, “After her expected confirmation, there will still be 14 other judicial nominees awaiting floor votes. Of these 14, 13 were approved by the Judiciary Committee unanimously, and the five nominees would fill judicial emergencies. They have been waiting on the Senate floor for an average of 67 days for a vote. That’s nearly twice as long as President’s Bush’s judicial nominees.”

  • April 2, 2013

    by Jeremy Leaming

    Senate Republicans bent on obstructing the Obama administration’s efforts to fill vacancies on the federal bench may be feeling a bit of pressure to back off their political agenda for the sake of one of the nation’s most powerful appeals courts.

    Last month Republicans filibustered the president’s nomination of Caitlin Halligan to fill one of the four vacancies on the 11-member U.S. Court of Appeals for the District of Columbia Circuit. The president had tried numerous times to place Halligan, the general counsel for the Manhattan district attorney’s office, on the Court, but Senate Republicans refused to allow an up-or-down vote citing flimsy claims that she is a left-wing ideologue unfit to serve. Not long after the latest filibuster, Halligan withdrew her nomination. As NPR’s Carrie Johnson reports the appeals court, which hears of range of weighty constitutional matters, has more vacancies than any other appeals court circuit. (ACS President Caroline Fredrickson in an interview with NPR noted the partisan leaning of the D.C. appeals court and its importance in handling challenges to federal regulations. “The clean air that we breathe, we hope to breathe, the clean water that we’d like to drink [and] all the EPA regulations around climate change are subject to this court’s review. And this court has shown itself extraordinarily hostile to efforts to protect people from environmental dangers.”)

    The Senate Judiciary Committee is scheduled to conduct an April 10 hearing to consider another Obama nominee to the D.C. appeals court circuit, Sri Srinivasan, the principal deputy solicitor general. Srinivasan was nominated to the D.C. Circuit nearly a year ago, but like Halligan, his nomination has faced Republican opposition. Srinivasan, born in India and raised in the U.S., has not been attacked as an ideologue for a seat on the federal bench, instead Sen. Chuck Grassley (R-Iowa), the Senate Judiciary Committee’s Ranking Member, has demanded information from the Department of Justice to determine whether Srinivasan was involved in the settlement of case involving city officials in St. Paul, Minn. (Grassley has suggested that city officials agreed to settle a case that could have resulted in a ruling weakening an enforcement provision of the Fair Housing Act in return for the DOJ’s agreement not to pursue and unrelated case. As The Blog of Legal Times reported earlier this year that Grassley has not suggested that Srinivasan “did anything inappropriate or improper,” but he wants to see more documentation to determine what, if any, role Srinivasan played.) If confirmed to the seat, Srinivasan would be the first South Asian to sit on the appeals court bench.

    Yesterday, White House Press Secretary Jay Carney urged senators to move on the nomination. He called the Principal Deputy Solicitor General a “highly respected appellate advocate who as has spent a distinguished career litigating before the U.S. Supreme Court and the U.S. Court of Appeals, both in private practice and on behalf of the United States for both Democratic and Republican administrations.”

     

  • March 29, 2013

    by Caroline Fredrickson, ACS President. This piece is cross-posted on The Huffington Post.

    It has to do with "our dignity," being able to be who we are openly. That's what Edith S. Windsor the woman challenging the cramped definition of marriage embedded in the so-called Defense of Marriage Act (DOMA) said in a documentary about her longtime relationship with Thea Spyer. The two were married in Canada, a country that does not exclude lesbians and gay men from marriage, after more than 40 years together and not long before Spyer died of complications related to multiple sclerosis.

    The U.S. Supreme Court heard oral argument in the case lodged by Windsor and in another case challenging California's ant-gay law, Proposition 8, which stripped lesbians and gay men of the right to wed in that state. It's difficult to predict how the Court will rule based solely on oral argument. But a consensus is building among many court-watchers that the justices appeared likely to move only incrementally on marriage equality.

    In the Prop 8 case, Hollingsworth v. Perry, the justices dwelled heavily on a threshold question - is a handful of Prop 8 proponents the right group to defend the law before the Court. If the justices toss the case on procedural grounds, it likely means that lesbians and gay men can resume obtaining marriage licenses in that state, but would have no effect elsewhere. In the DOMA case, U.S. v. Windsor, the justices also focused heavily on standing, but when they turned to the substance of the case - a constitutional challenge to the federal government's narrow definition of marriage - several of the justices seemed far more concerned about the law's impact on federalism than on equal protection. Thus a majority of justices may be ready to invalidate DOMA's central provision, but on very narrow grounds. So in both cases the Court could provide very little progress on a core question - should laws that classify lesbians and gay men for unequal treatment be subjected to a much tougher constitutional test?

    Supporters of marriage equality in both cases urged the justices to find that laws targeting gay men and lesbians should be subjected to a heightened scrutiny when challenged in court. In other words, the government would have to show a compelling interest in enforcing a discriminatory law - a very difficult test to meet. The high court, however, can avoid that declaration and questioning during oral argument in both cases suggested that may be what occurs. On marriage alone, however, it is unlikely - regardless of how the Court rules -- that the robust movement for marriage equality will stall. These cases have made the question over marriage an easier one for many Americans to answer.

  • March 27, 2013

    by Jeremy Leaming

    As in Hollingsworth v. Perry, the Proposition 8 case, the U.S. Supreme Court justices in today’s consideration of the so-called Defense of Marriage Act dwelled on jurisdictional questions, before discussing the core constitutional concerns.

    But a reading of the oral argument transcript in U.S. v. Windsor suggests a majority of justices may be ready to invalidate DOMA, but on narrow grounds, and likely not with a declaration that laws classifying lesbians and gay men for unequal treatment should be subjected to heightened scrutiny. Instead if the justices strike DOMA – and SCOTUSblog’s Lyle Denniston suggests that may be what happens – it likely will be on federalism grounds – that is the law encroaches on the states’ rights to regulate marriage.  

    ACS President Caroline Fredrickson in a statement following oral argument said, “The federal government has a duty to protect Constitutional principles and values. The so-called Defense of Marriage Act, however, is an egregious affront to the Constitution’s guarantee of equal protection under the law. DOMA walls off lesbians and gay men from more than 1,000 federal government benefits, protections and rights. There is no rational reason for this law. The Supreme Court should reject it and establish a more rigorous test for similar laws.”

    Before moving to the core of the case – a constitutional challenge to DOMA – several of the justices pelted lawyers with questions about whether the case should even be before the justices. (The Obama administration has stopped defending DOMA, calling it unconstitutional. But when the U.S. Court of Appeals for the Second Circuit ruled last year that DOMA’s cramped definition of marriage was unconstitutional, the administration appealed the opinion to the Supreme Court, where it argued against the law.) During oral argument, Chief Justice John Roberts Jr. took a shot at the administration’s handling of the case, saying that if the president thinks the law is unconstitutional then why doesn’t he “have the courage of his convictions" and not enforce the law, instead of saying, "'Oh, we'll wait till the Supreme Court tells us we have no choice.'"

    After getting through the mind-numbing back-and-forth on standing questions, the justices turned to the constitutionality of DOMA, and it appeared that a majority was leaning toward killing it. Lawyers representing Edith S. Windsor the woman challenging DOMA, argued in their merits brief before the Supreme Court that laws like DOMA, which target lesbians and gay men for unequal treatment when challenged should be subjected to a heightened scrutiny. “This Court should apply heightened scrutiny to DOMA because it discriminates on the basis of sexual orientation,” the brief states. “Under heightened scrutiny, the federal government must at the very least show that the classification is ‘substantially related to the achievement of [important government objectives].’”

     

  • March 6, 2013

    by Jeremy Leaming

    Another highly qualified nominee was the victim of the Senate’s obstructionists’ ongoing assault on the judiciary, which includes burdening the federal bench with high vacancies and larger caseloads.

    Today the Senate filibustered the nomination of Caitlin Halligan for a seat on the U.S. Court of Appeals for the District of Columbia, largely along a party-line vote, 54-45, with one Republican joining all the Democrats. Halligan was hailed in the legal community, liberal and conservatives, alike as greatly suited to serve in the judiciary.

    But as noted here yesterday, obstructionists continued to claim Halligan to “extreme” on constitutional issues. And they seem bent on keeping vacancies open and giving higher hurdles to confirmation for women and minority nominees in particular.

    ACS President Caroline Fredrickson blasted the action today saying, in part, that the obstructionists are undermining a pillar of democracy.

    “Our courts and citizens are seeing justice delayed because our courts cannot function effectively or efficiently without judges. It’s far past time to end this vacancy crisis and get our justice system back up and running," Fredrickson said. (See her full statement .)

    Senate Judiciary Chairman Patrick Leahy (D-Vt.) also took on the needless obstruction of judicial nominations, and some of his Republican colleagues, concluding, “They have not been fair to this fine woman.”

    President Obama called the senators' action a "pattern of obstruction," adding that his  "judicial nominees wait more than three times as long on the Senate floor to receive a vote than my predecessor's nominees." Like retired U.S. Court of Appeals for the D.C. Circuit Judge Patricia M. Wald noted in a column for The Washington Post, the president also highlighted the harm done to the D.C. circuit court, which was gone years with vacancies.

    "The effects of this obstruction take the heaviest toll on the D.C. Circuit, considered the Nation's second-highest court, which has only seven active judges and four vacancies," the president's March 6 statement reads. "Until last month, for more than forty years, the court has always had at least eight active judges and as many as twelve."