Other courts

  • April 5, 2013

    by Jeremy Leaming

    In a bleak era of state and federal lawmakers striving to dictate to women on health care concerns, primarily centering on birth control, a federal court today offered a respite. It ruled that the federal government must stop making it difficult for young women to get access to emergency contraception.

    U.S. District Court Judge Edward Korman found that the FDA’s refusal to remove restrictions on the availability of Plan B, a medication to help prevent pregnancy, was “arbitrary, capricious, and unreasonable.”

    The Atlantic’s James Hamblin notes that “leaders in the FDA have advocated” the availability of the drug for some time now. “In 2011, FDA commissioner Dr. Margaret Hamburg concluded that it was safe to sell Plan B One-Step over the counter. The American Medical Association, Americans Congress of Obstetricians and Gynecologists, and American Academy of Pediatrics have since endorsed unrestricted access to emergency contraception.”

    But, in a move reminiscent of the George W. Bush administration’s disdain for science, Health and Human Services Secretary Kathleen Sebelius last year ignored the FDA’s recommendation and held that young women could not get access to Plan B without a prescription.

    Judge Korman blasted Sebelius’ decision as revealing “a strong showing of bad faith and improper political influence,” TPM’s Sahil Kapur reports.

    President of NARAL Pro-Choice American Ilyse Hogue lauded Korman’s decision, saying it is an “affirmation that policy can and should be driven by facts and by public health. For years, women have had to jump through hoops because officials in Washington played politics with our health. Today’s ruling brings us one step closer to putting women in control of our destinies.”

    It’s also a court ruling that will undoubtedly be attacked by the rabid and righteous groups bent on controlling certain health care decisions that should be left solely to women.

  • April 4, 2013

    by Jeremy Leaming

    The inability of President Obama to fill vacant seats on one of the nation’s most powerful courts, the U.S. Court of Appeals for the D.C. Circuit, has belatedly caught the attention of a few beltway reporters. And unsurprisingly several of those longtime reporters have framed the story in a typical, albeit lazy, fashion – it’s both the Republicans and the administration’s fault. It’s a story they are trained to write. Place blame on both parties, question whether there’s really anything new here and then walk away.

    So one must look to writers like Andrew Sullivan, Thomas Mann and Norman Ornstein or the Constitutional Accountability Center’s Judith Schaeffer for an accurate picture of the debacle that is the judicial nominations process.

    The current fight over the judiciary has very little to do with the pace by which the administration has nominated potential judges. It has everything to do with a Republican Party that has grown increasingly radical. It’s a Party that is oblivious to the last two presidential elections, won fairly handily by a Democrat, and beholden to interests that need a federal bench that tilts heavily rightward – to protect corporate interests. So Republican senators, led by Minority Leader Mitch McConnell (R-Ky), have not taken their constitutional duty to provide advice and consent seriously and abused the filibuster to greatly slow the pace of judicial confirmations. This has led to vacancies across the country hovering above 80 for far too long.

    As Sullivan wrote in March, President Obama is “not equally at fault here. This should be a steady, reasonable process – especially for utterly uncontroversial nominees. The American system requires some give-and-take, some acknowledgment that when you lose an election, you cooperate with the winner and take some responsibility for important institutions, like the federal courts. And yet this core conservative instinct to preserve the constitutional order and process has disappeared in the fanaticism of the current GOP. They are behaving like moody teenagers with grudges.”

    The Republican obstructionists’ actions have likely had the most adverse effect on the D.C. Circuit, where they recently filibustered one of Obama’s selections for the D.C. Circuit, which hears some of the most important constitutional matters of any of the federal appeals circuits. It hears, for instance, challenges to new regulations aimed at enforcing the Clean Air and Clean Water federal laws. It is also a Court that tilts rightward and has shown great hostility to regulations aimed at protecting our environment – good for corporate interests, harmful to the health of many Americans. 

  • 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 26, 2013

    by Jeremy Leaming

    Even before today’s oral argument in Hollingsworth v. Perry, some pundits urged the Supreme Court to go slow on same-sex marriage, essentially arguing marriage should be for the states to hash out and declaring that a Supreme Court decision that all states must recognize same-sex marriage could result in a backlash, thereby setting back efforts to advance equality for the LGBT community.

    After reading the oral argument transcript, it seems that may be what happens since it did not appear a majority of justices were anywhere close to declaring that gay couples have a constitutional right to wed. That’s disconcerting since national polls and polls in California, birth of Proposition 8, reveal strong support for same-sex marriage. That’s not terribly surprising since marriage is about committed couples taking responsibility for each other and why should government officials want to discourage such responsibility.

    Instead, the high court may be ready to dismiss the Prop 8 case on a technicality for it appeared that the high court’s left-of-center justices and possibly Chief Justice John Roberts and Justice Anthony Kennedy were not convinced that a few proponents of California’s anti-gay law are the proper people to be before the court.

    Before Charles J. Cooper, attorney for the proponents of Prop 8, could delve into the substantive argument against same-sex marriage, he was asked by Chief Justice John Roberts, Jr. to address the “standing issue.”

    Cooper said the proponents of Prop 8 “have standing to defend the measure before this Court as representatives of the people and the State of California to defend the validity of a measure that they brought forward.” (As noted in this interview with Columbia Law School Professor Suzanne Goldberg it is a bit odd for the Prop 8 proponents to insist they are representing the interests of the state of California, for the state’s governor and attorney general have both said the law should be invalidated as unconstitutional.)

    Justice Stephen Breyer pointed to a friend-of-the-court brief filed on behalf of former U.S. Solicitor General Walter Dellinger saying it made a “strong argument” that the Prop 8 proponents “are really no more than a group of five people who feel really strongly” that they should vindicate the law.

    The Dellinger brief, in part, argues that the proponents of Prop 8 have “noting more than a generalized interest in” enforcement of the law.  Citing high court precedent, the brief continues, that “the generalized interest a party shares with all members of the public in proper enforcement of the laws is not sufficient” to establish standing.

    Justice Sonia Sotomayor noted that the while the California Attorney General has “no personal interest” in defending Prop 8, she does have “a fiduciary obligation,” to which Cooper agreed.

    The standing question, as the Dellinger brief persuasively argues, could prove to be the winning argument, giving the Court a way to avoid tackling the substantive question of whether gay couples have a constitutional right to wed.

    The substantive argument from Cooper and many of the groups lodging friend-of-the-court briefs centered on an alleged overriding governmental interest in marriage as a tool primarily for promoting procreation.

    Cooper said that Prop 8 proponents are arguing that the States' interest in marraige is about promoting procreation. He told Justice Elena Kagan that the “essential thrust of our position” is that the states have a really strong interest in regulating procreation.

    Justice Stephen Breyer asked Cooper, “What precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile couples of different sexes to marry would not? I mean there are lots of people who get married who can’t have children.”


  • March 22, 2013

    by Jeremy Leaming

    Senate obstructionists cemented another victory in their assault on the judiciary when Caitlin Halligan withdrew her nomination to the U.S. Court of Appeals for the D.C. Circuit.

    The band of obstructionists led by Sen. Minority Leader Mitch McConnell (R-K.Y) has succeeded in keeping President Obama from confirming a nominee to the 11-judge appeals court that has only 7 active judges. As the Boston Globe noted recently the D.C. circuit court has the “worst vacancy rate in its history and higher than any other federal circuit court nationwide."

    ACS President Caroline Fredrickson blasted the obstructionists for delaying or blocking up-or-down votes on uncontroversial, qualified nominees.

    “The D.C. Circuit is far too important to be held hostage by Senate obstructionists, who are leading an assault on the federal judiciary,” Fredrickson said. “The American people deserve better. Republican senators won’t even allow up-or-down votes on too many nominations now. Not only is this undermining the ability for courts to dispense justice, but it goes against the spirit of our constitutional requirement for advise and consent.”

    As former chief judge of the D.C. Circuit Patricia M. Wald wrote for The Washington Post, the Court “hears the most complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary Americans’ lives: clean air and water regulations, nuclear plant safety, health-care reform issues, insider trading and more.”

    But McConnell and his team of obstructionists are not concerned about the harm being done to the judiciary or to the American people who should be able to rely upon a fully and effectively functioning federal bench. The obstructionists are instead focused on elections down the road, and keeping judicial vacancies open is part of their agenda. They want the federal bench to be packed with right-wing ideologues. Not even middle-of-the-road or moderate judges will do. Although Obama’s nominees have been a diverse lot, very few have been liberals.