Sherrilyn Ifill, President and Director-Counsel of the NAACP Legal Defense and Educational Fund, released a statement praising the Senate Judiciary Committee for its favorable report of Debo Adegbile to be the Assistant Attorney General in the Department of Justice's Civil Rights Division. In the statement, Ifill says Adegbile “has precisely the type of broad civil rights experience that is required at this pivotal moment in our country.”
Last summer, the U.S. Supreme Court struck down a key provision of the Voting Rights Act that required federal review of voting laws in states with a history of voter discrimination. Adam Ragusea of NPR reports from Macon, Georgia on the repercussions felt by the city’s minority voters.
Human Rights Watch explores the legal and ethical implications of a growing trend among probation companies to “act more like abusive debt collectors than probation officers.”
by Michael Avery and Danielle McLaughlin. Mr. Avery is Professor of Law and Director of Litigation at Suffolk University Law School. Ms. McLaughlin is an associate at Nixon Peabody.
In mid-November the Democrats finally exercised the so-called “nuclear option,” barring filibusters for all votes on judicial appointments in the Senate, other than for Supreme Court Justices. The change in the Senate Rules followed the Republican filibuster of three of President Obama’s nominees for the very conservative D.C. Circuit Court of Appeals and the radical increase in opposition to presidential judicial choices by Republicans since 2009. According to Harry Reid, almost half of the filibusters of presidential judicial nominations in our Nation’s history have been used against President Obama’s selections. The rules change will allow a simple majority of senators present and voting to approve presidential nominees to the federal bench and eliminate the 60-vote supermajority required to overcome a filibuster.
Right-wing ideologues have been successful since the 1980 election of President Reagan in securing judicial appointments for conservatives during Republican presidencies. Ed Meese, the Reagan Attorney General and now elder statesman of the conservative legal movement, said that “no President exercises any power more far reaching, more likely to influence his legacy, than the selection of federal judges.” The Federalist Society, whose founders were mentored by Meese in the Reagan White House and Department of Justice, has always believed that the easiest way to change the law is to change the judges. We document their success in doing so at all levels of the federal judiciary in our book, The Federalist Society: How Conservatives Took the Law Back from Liberals. Federalist Society members are just as active with respect to judicial selection when a Democrat is president as they are when a Republican is in the White House. For example, in 2010, the Judicial Confirmation Network, formed to promote George W. Bush’s judicial nominations, simply changed its name to the Judicial Crisis Network (JCN), once President Obama began nominating judges. The leadership of the group remained in the hands of key Federalist Society members and it lobbied actively against the president’s appointments.
One of the unanticipated challenges I encountered along the path to my recent biography on Supreme Court Justice Tom Clark and his son, Attorney General Ramsey Clark, was the shadow cast on the elder Clark as the result of an unverified and probably inaccurate, but still highly influential historical reference. It is an impact exacerbated by our Google-based world, where even erroneous references can create a lasting marker, repeated so often that both casual observers and scholars assume its accuracy. As Nora Ephron once quipped, “You can’t retrieve your life, unless you’re on Wikipedia, in which case you can retrieve an inaccurate version of it.”
The burden of biographical inaccuracies existed long before Google or Wikipedia, of course – think George Washington chopping down a cherry tree. But when these references undermine a subject’s character – and cannot be disproven – that can mean trouble for a biographer.
For instance, the biographer of Al Shanker, the famous teachers union president and education innovator, never could disprove the frequently cited (though never documented) quote purportedly made by his subject: “When schoolchildren start paying union dues, that’s when I’ll start representing the interests of school children.” A similar question was faced bybiographers of Justice William Brennan, who could neither completely confirm or refute an oft-cited comment said to have been made by President Eisenhower, to the effect that his appointment of Brennan and Chief Justice Earl Warren were the two worst decisions of his presidency.
All of which brings us to the story behind the purported disparagement of Justice Tom Clark by President Harry Truman, the man who appointed Clark as attorney general and later as Supreme Court Justice. The alleged controversial remarks, as well as a number of other provocative statements from the former president about other prominent subjects, derived from a series of conversations between Truman and writer Merle Miller as part of a television series that never aired and which subsequently were compiled by Miller for his 1974 best-selling book, Plain Speaking. According to Miller, Truman called Clark was “my biggest mistake,” adding, ”He was no damn good as Attorney General, and on the Supreme Court . . . it doesn’t seem possible, but he’s been even worse.” Asked by Miller to explain the comment, Truman stated further: “The main thing is . . . well, it isn’t so much that he’s a bad man. It’s just that he’s such a dumb son of a bitch. He’s about the dumbest man I think I’ve ever run across.” This is juicy stuff that, not surprisingly, has been included in various forms in nearly every subsequent biographical reference about the former Justice.
Every high school history student learns that since Marbury v. Madison, the courts “say what the law is.” However, when we vote we choose those who choose our judges, which means We the People play a role in saying what the law is. Americans recognize that judges and justices approach the law from different perspectives and that their approaches affect the outcomes of cases we care about. Presidential candidates make promises about what kinds of judges they will appoint for a reason: because it matters. But what do the American people expect from our judiciary?
We’re often told Americans want a “conservative” Court and that they are sympathetic to originalism. A poll taken after Justice Stevens announced his retirement indicated that more Americans (42 percent) wanted a new justice who would make the Court more conservative than those who wanted to see the Court become more liberal (27 percent). Some surveys hint that Americans’ views on constitutional interpretation are sharply divided: a Pew Survey found that half of Americans (50 percent) say the Court’s rulings should be based on its understanding of what the U.S. Constitution means in current times, while about as many (45 percent) say rulings should be based on its understanding of what the Constitution meant as originally written. Yet although voters might find the term “conservative” and the idea of “as originally written” appealing in principle, they don’t agree with what the conservative justices do in practice.
Americans overwhelmingly support upholding Roe v. Wade, which has become conservative shorthand for a liberal, activist Court. Even Roe’s supporters don’t tend to call it conservative or claim it exemplifies originalist constitutional interpretation, yet only 29 percent of Americans believe that Roe should be overturned, which is fewer than the 43 percent who believe abortion is “morally wrong.”
Most Americans also agree with the Court’s ruling in U.S. v. Windsor, which struck down the section of the so-called Defense of Marriage Act that denied same-sex couples federal benefits. This places them at odds with the Court’s conservative bloc. By contrast, 33 percent approve of the Court’s decision in Shelby County v. Holder, which struck down part of the Voting Rights Act, compared with 51 percent who disapprove.
Geoffrey Stone, the Edward H. Levi Distinguished Professor of Law at the University of Chicago Law School and former ACS Board Chair, is doing an epic six-art video interview with our friends at SCOTUSblog. In it, Professor Stone talks about his long career in academia, clerking for Justice Brennan on the Supreme Court, his thoughts on how the high court has changed over the last 40 years and modes of constitutional interpretation.