Judicial independence

  • December 2, 2011

    by Jeremy Leaming

    A proposed constitutional amendment to mandate a balanced budget has already failed in the House, but senators must also vote on a version before the end of the year as required by the debt-ceiling deal reached in the summer.

    Beginning to consider a balanced budget measure, the Senate Judiciary’s Subcommittee on the Constitution, Civil Rights and Human Rights, earlier this week, heard from detractors and supporters of the idea that has been embraced by a slew of states and mulled in Congress for more than a decade. A measure similar to the one the House defeated last month was rejected by Congress in 1995.

    Alan B. Morrison, an associate dean of George Washington University Law School for Public Interest and Public Service Law, and a distinguished law professor, told the Subcommittee the balanced budget amendment was a “bad idea,” and urged the Senate to “vote it down and get back to the real work of controlling our deficits.”

    Morrison, who helped found Public Citizen Litigation, where he was involved in separation of powers cases, many of which reached the Supreme Court, said, in part, that the proposed amendments would likely shove courts into deciding budgetary matters.

    He told senators 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. At the very least, it is very strong medicine. But if that is what the sponsors think is needed, they should have the courage to say so. On the other hand, if the cure of judicial review is seen as worse than the ills of an unbalanced budget, Congress should make that clear in the amendment itself. If that option is taken, then the amendment will probably end up being little more than empty rhetoric, to be followed when it is convenient, and ignored when it is not. Meanwhile, serious efforts to bring our spending more in line with our revenues will be put on the back burner while Congress relies on the hope that the balanced budget amendment will do its job.”

    Morrison’s entire testimony is available here. Video of the hearing is available on the Subcommittee’s website.

  • October 24, 2011

    by Nicole Flatow

    Republican candidates are making the courts a campaign issue, launching “biting and sustained attacks on the federal courts and the role they play in American life,” The New York Times reports in a front-page story today.

    "Any one of those proposals would significantly undercut the independence and authority of federal judges,” echoes a second article from The Associated Press.

    Proposals from candidates include eliminating those courts that politicians deem “radical,” barring courts from deciding cases on same-sex marriage, and bringing judges before Congress to explain their decisions, under threat of impeachment.

     “These threats go far beyond normal campaign season posturing,” Justice at Stake Executive Director Bert Brandenburg told The Times. “They sound populist, but the proposal is to make courts answer to politicians and interest groups.”

    What’s more, several of these proposals run counter to our constitutional system, such as imposing term limits on federal judges, and enabling Congress to overturn Supreme Court decisions by a two-thirds vote.

    "Debates like these could threaten to lead to a new cycle of attempts to politicize the courts,” Brandenburg tells The Associated Press.

  • August 5, 2011
    Guest Post

    By Steve Sanders, visiting assistant professor, University of Michigan Law School


    The political media are about to begin obsessing over the Iowa Republican straw poll, scheduled for Saturday, August 13.  Recent commentary has focused on how religious conservatives have gained a chokehold on Iowa GOP politics.  Evangelical Christian activists remain outraged at the 2009 decision of the Iowa Supreme Court to legalize same-sex marriage.  Last fall, they mounted a well-funded campaign to oust three of the justices who signed that ruling.  Their TV ads  – juxtaposing footage of villainish-looking "liberal, out of control judges" against images of hunters in camouflage and a chubby kid saluting the flag – accused the justices of "ignoring our traditional values" and "imposing their own values."

    Now, activist Bob Vander Plaats, who led the anti-court jihad, is pressuring presidential candidates to sign something called "The Marriage Vow," which includes a pledge of "[v]igorous opposition to any redefinition of the Institution of Marriage – faithful monogamy between one man and one woman – through statutory-, bureaucratic-, or court-imposed recognition of intimate unions which are bigamous, polygamous, polyandrous, same-sex, etc."  Religious-right darlings Michele Bachmann and Rick Santorum were the first candidates to enthusiastically sign up.

    The picture of Iowa we get from the mainstream media through next year's caucuses is likely to be of a state in the grip of militant Tea Partiers and theocrats.  That would be a shame, because the agenda of these particular activists – with their narrow view of social equality and hostility toward an independent judiciary – is unfaithful to the state's social and legal heritage.

  • August 4, 2011

    by Jonathan Arogeti

    Efforts by members of the Obama administration are restitching the fabric of the Civil Rights Division of the U.S. Department of Justice, largely frayed under the George W. Bush administration, according to a new article in the ABA Human Rights magazine by William Yeomans. And Yeomans should know the history of the Division. He served in multiple capacities there, from trial lawyer to acting assistant attorney general between 1981 and 2005, and until he left the Department of Justice in that year, had spent his entire career in the Department.

    The “bipartisan consensus in support of enforcement of core civil rights protections” enjoyed by the Division since its inception ensured equal voting rights, defeated employment discrimination, and integrated public schools. That consensus “proved inadequate during the Presidency of George W. Bush, as enforcement activity diminished sharply and partisan considerations affected law enforcement and personnel decision,” Yeomans writes.

    Yeomans maintains that while enjoying the benefits of a Republican Congress, the Bush administration filed zero cases pertaining to voter discrimination of African-Americans. With the prospect of a Democratic Congress following the landslide 2006 midterm election, the administration finally exercised this particular section of the Voting Rights Act. Instead of protecting this country’s minorities, however, the Division alleged African-American discrimination against white voters.

  • August 3, 2011

    by Nicole Flatow

    The Senate left town yesterday, heading into recess several days ahead of schedule. In its final hour, the Senate confirmed by unanimous consent four of the 24 judicial nominees that were ready for a Senate vote, and scheduled a vote on a fifth nominee for September.

    But as ACS Executive Director Caroline Fredrickson pointed out in a statement after the vote, 19 other candidates were left behind “whose nominations have been fully vetted and could have been voted on immediately.”

    “This current pace of confirming judicial nominees is far from adequate to the job,” Fredrickson said in her statement. “While the Senate is on break during the month of August, matters involving Americans’ safety, freedom, and livelihoods will continue to be delayed. And in some of the most overburdened districts, our judges may be forced to rush through burgeoning criminal dockets without taking crucial time to consider the arguments before them.”

    Most of the 19 nominees that were left behind were approved by the Senate Judiciary Committee with absolutely no recorded opposition from members of either party. Earlier this week, ABA President Stephen Zach called for the Senate to confirm all 20 unopposed nominees before the recess. And Senate Judiciary Committee Chairman Patrick Leahy pointed out that all 24 nominees could be disposed of in less than an hour.