Judicial independence

  • December 15, 2011

    by Nicole Flatow

    Former George W. Bush attorneys general Michael Mukasey and Alberto Gonzales are expressing alarm over Republican presidential primary candidate Newt Gingrich’s latest proposal to eviscerate the power of the courts, Fox News reports.

    Mukasey calls some of the ideas in Gingrich’s position paper “dangerous, ridiculous, totally irresponsible, outrageous, off-the-wall and would reduce the entire judicial system to a spectacle," and Gonzales takes particular aim at the suggestion that Congress subpoena judges after controversial rulings, saying, “I cannot support and would not support efforts that would appear to be intimidation or retaliation against judges." 

    In his 28-page paper, "Bringing the Courts Back Under the Constitution," Gingrich suggests a number of radical ways in which the legislative and executive branches should rein in “lawless judges,” including by eliminating courts they don’t like, limiting the scope of decisions those courts can make, and simply ignoring Supreme Court decisions.

    On Gingrich’s suggestion that the entire U.S. Court of Appeals for the Ninth Circuit be eliminated, Mukasey says, “The fact is the Constitution empowers the Supreme Court to establish lower federal courts. Presumably it can undo lower federal courts. But to say that you are going to undo an entire court -- simply because you don't like some of their decisions -- when there are thousands of cases before that court is totally irresponsible."

    Mukasey and Gonzales echo the concerns of several other commentators, who have expressed particular alarm over Gingrich’s attack on the landmark decision Cooper v. Aaron, in which all nine members of the Supreme Court affirmed a court order calling for desegregation. 

    “If he had his way, a Supreme Court that ordered an end to racist segregation policies would become a puppet of the political branches,” The New York Times editorial board asserts.

    In her New York Times Opinionator column, American Constitution Society Board Member Linda Greenhouse calls “truly head-spinning” the “tenuous hold that this screed, from a onetime history professor, has on American history.”  She continues:

  • December 15, 2011
    Judges Under Fire
    Human Rights, Independent Judges, and the Rule of Law
    Hon. Harold Baer Jr.

    By Harold Baer Jr., U.S. District Judge for the Southern District of New York

    As we watch the Arab spring unfold and hear the depressing stories of how the People’s Republic of China deals with human rights, Judges Under Fire: Human Rights, Independent Judges, and the Rule of Law becomes a must read. It provides insights into how the Rule of Law and an independent judiciary have fared over the last 300 years around the world. More to the point, it demonstrates what happens when judges and citizens lose track of the vital tenets to which the book is devoted.

    On that score, one can’t help but wonder how some of the newly liberated countries will fare. Will they ensure that the Rule of Law is a part of their rebirth? How sad it will be if countries like Egypt and Libya slip back into anarchy. My book provides the reader with stories of how easy it could be for that to happen, both in older established countries as well as in fledgling republics. It supports the proposition that without the Rule of Law and an independent judiciary, democracy as we know it cannot survive. It is this proposition that we must bring to the attention of the leaders of these newly liberated countries.

  • December 14, 2011

    by Jeremy Leaming

    A proposed balanced budget amendment is dead, for now. The Senate defeated two versions of the measure aimed at enshrining in the Constitution a demand that the federal government maintain a balanced budget.

    The House handily defeated a version, similar to one Congress nearly passed in 1995, last month. The Senate, however, had to vote on a so-called balanced budget amendment because of the deal reached in late summer to end the debt-ceiling debacle. The Senate, mostly along Party lines, rejected two versions of a balanced budget amendment.

    Sen. Dick Durbin, (D-Ill.), speaking from the Senate floor yesterday, said some of his colleagues “believe we should enshrine in our Constitution their views of what the federal budget should look like. They want to radically reshape our constitutional framework in order to relieve Congress of its political and moral responsibility to make tough choices about taxing and spending. They want to tie the hands of Congress on budget decisions and pass important decisions on to another branch of government, our federal judiciary.”  

    “This is not what the Founding Fathers intended,” Durbin continued. “The Constitution gives the power of the purse expressly to Congress. Fulfilling the constitutional duty carries some political risk, but we all signed up for that job. Members of Congress should not try to change the Constitution to avoid their duty to make tough and important decisions.”

    Earlier this month, Alan B. Morrison, a distinguished law professor at George Washington University, testified before a Senate panel against a balanced budget amendment. Morrison, in part, said the measures being considered would likely force the federal courts into budgetary matters. He said 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.” Morrison’s entire testimony is available here.

    Durbin, during his floor remarks, cited Morrison’s testimony, saying, “He asked the basic question: Who is going to enforce this amendment? If in fact Congress does something in violation of the amendment, who can sue? And which court would consider it? It is a valid question because ultimately this will end up in the courts. The courts will have to make some rather unique decisions. What are the outlays and receipts of the United States? What was the gross domestic product? These are issues which many in the court may find challenging if not impossible to deal with on a timely basis.”

  • December 2, 2011
    Sen. Harry Reid (D-Nev.) filed cloture Thursday evening on the nomination of Caitlin Halligan to the U.S. Court of Appeals for the D.C. Circuit. That vote to end debate and hold an up-or-down vote on her nomination will occur  Tuesday at noon. Halligan was nominated to fill a seat vacated in 2005 by now-Chief Justice Roberts.
    As part of a deal to schedule votes on five nominees, the Senate unanimously confirmed the nomination of Christopher Droney to the U.S. Court of Appeals for the Second Circuit. Sen. Patrick Leahy, the chairman of the Senate Judiciary Committee, notes Judge Droney will fill a judicial emergency vacancy that has existed for more than two years.
    The Senate Judiciary Committee reported out the nominations by voice vote of Jacqueline H. Nguyen to the U.S. Court of Appeals for the Ninth Circuit, Gregg Jeffrey Costa to the U.S. District Court for the Southern District of Texas, and David Campos Guaderrama to the U.S. District Court for the Western District of Texas.
    President Obama nominated U.S. Magistrate Judge Timothy S. Hillman to the U.S. District Court for the District of Massachusetts, U.S. Magistrate Judge Robin S. Rosenbaum to the U.S. District Court for the Southern District of Florida, and litigator Robert J. Shelby to the U.S. District Court for the District of Utah.
  • 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.