Other courts

  • June 5, 2013

    by Jeremy Leaming

    The federal appeals court judge under an ethics investigation for allegedly making racist comments at a Federalist Society event has been building a rather tawdry track record on and off the bench. The ethics complaint lodged by civil rights groups against Judge Edith H. Jones of the U.S. Court of Appeals for Fifth Circuit has become somewhat high-profile thanks to coverage from The New York Times.

    But Nicole Flatow and Ian Millhiser of ThinkProgress add to the story. First Flatow notes that Jones, appointed to the bench by President Ronald Reagan, “is known for her hostile and discriminatory comments.” Flatow continues that Jones “erupted at one of her fellow judges during oral argument in 2011, and told him to ‘shut up’ while asking him to leave the courtroom.” Flatow also notes Jones (pictured) wrote an opinion arguing for dismissal of a woman’s sexual harassment lawsuit. It was not enough that the woman’s male co-workers repeatedly groped and grabbed her and plied her locker with pornographic pictures. The woman’s supervisor dismissed her complaints and Judge Jones argued for the same thing to be done. Fortunately her opinion was in dissent. Nonetheless that dissent suggests Jones harbors an incredibly callous or cynical view of sexual harassment charges.

    Millhiser in a separate post expounds on Jones’ ethically suspect behavior and wobbly jurisprudence. Millhiser writes that Jones “joined an opinion holding that a capital defendant could be executed despite the fact that his lawyer slept through much of his trial. Though that opinion was eventually reversed by the full Fifth Circuit, Jones dissented from that reversal.”

    The Texas Civil Rights Project, Austin NAACP, the League of United Latin American Citizens and Mexican Capital Legal Assistance Program lodged the ethics complaint against Jones arguing that her comments at a Federalist Society event at the University of Pennsylvania School of Law violated the Judicial Conduct & Disability Act. That code of conduct, in part, requires judges to remain impartial.

    The event was not recorded, according to the law school, but the complaint includes affidavits from members of the gathering. The Times’ Ethan Bronner reports that the groups’ complaint says Jones declared, “racial groups like African-Americans and Hispanics are predisposed to crime.”

    When prodded on that comment by a lawyer in the audience, Jones allegedly added that blacks and Latinos “get involved in more violent crime.”

    Jones, the complaint alleges, expressed incredibly base comments about death penalty defenses. Most of them, such as claims of racism, are “red herrings,” The Times reports. According to the newspaper witnesses added that the judge maintained “Mexicans would prefer to be on death row in the United States than in prison in Mexico.”

  • June 4, 2013

    by Jeremy Leaming

    President Obama is not shying away from a high-profile nominations battle with the U.S. Senate’s rabid obstructionists. In announcing today three nominations to the powerful U.S. Court of Appeals for the District of Columbia Circuit, the president is taking on senators, such as Chuck Grassley (R-Iowa), who have mounted a concerted effort to block him from bringing balance to the D.C. Circuit, which currently has a strong rightward tilt.

    Grassley, the ranking member of the Senate Judiciary Committee, is arguing that the D.C. Circuit, which hears myriad cases involving weighty constitutional issues, has enough judges and does not need anymore. He is pushing a bill to chop the number of seats on the 11-member Court to eight. The bill has little chance of enactment because it likely could not pass the Senate. But that’s not the point. The point, as Judith Schaeffer of the Constitutional Accountability Center has noted, is to provide cover for Grassley’s partners in obstruction. The obstructionists will have difficulty arguing that the president’s nominees are ideological extremists, but they will take Grassley’s line that the D.C. Circuit has plenty of judges for its caseload.

    But Grassley is pushing an outrageously ludicrous line, one that’s also laden with hypocrisy. Grassley had no problem helping Obama’s predecessor George W. Bush place judges on the D.C. Circuit, which included the far right Judge Janice Rogers Brown.

    Patricia Wald, who served on the D.C. Circuit for 20 years, including five as its chief judge, wrote earlier this year that the Court hears some of the weightiest and time-consuming constitutional and national security cases of any of the federal appeals court circuits. She also noted that the D.C. Circuit’s caseload has grown since G.W. Bush’s administration, when Grassley was striving to confirm nominations to that bench. “The number of pending cases per judge has grown from 119 in 2005 to 188 today,” she wrote.

    In announcing nominations for the D.C. Circuit’s three vacant seats, Obama noted his responsibility in nominating “qualified men and women to serve as judges” and Congress’s responsibility in the matter. Congress has a “constitutional duty to promptly consider judicial nominees for confirmation.” The president nominated Patricia Ann Millett, a longtime appellate attorney, Nina Pillard, a law professor at Georgetown Law Center and Judge Robert Wilkins, who is serving on the U.S. District Court for the District of Columbia. 

    Obama noted that during his first term senators too often failed to provide consideration of his nominees. Indeed, despite what mainstream reporters would have us believe, the battle over judicial nominations has only gotten more pitched during Obama’s presidency. Vacancies on the bench spiked during his first term and have remained hovering around 80 since.

  • June 3, 2013

    by Jeremy Leaming

    ACS President Caroline Fredrickson provided context to the discussion over Senate Republicans’ efforts to scuttle President Obama’s judicial nominations, in particular focusing on the three vacancies on the U.S. Court of Appeals for the District of Columbia.

    During a June 2 segment on MSNBC’s “Melissa Harris-Perry” show, Fredrickson said Americans should understand that a “vast majority” of high-profile and constitutional weighty cases have to be heard by the D.C. Circuit.

    “Major cases involving regulations” of our health care system, environment, and workers’ rights are heard by the Court, as well as major national security cases and voting rights cases. The majority of such cases are “required to go to the D.C. Circuit,” meaning the Court is one of the more powerful in the country, she said. And as noted on this blog frequently Senate Republicans, especially Senate Judiciary Committee Ranking Member Chuck Grassley (R-Iowa), are bent on keeping the president from making a lasting imprint on the D.C. Circuit. For instance, Grassley is pushing a bill to cut the 11-member court to eight seats thereby preventing Obama from placing any more judges on that court. (Recently the Senate confirmed Obama’s nomination of Sri Srinivasan to a seat on the D.C. Circuit, after twice blocking the president’s initial nomination to the Court.)

    Fredrickson noted that when George W. Bush was president Grassley had no complaints about the number of seats on the D.C. Circuit, instead strongly supporting the president’s constitutional duty to fill vacancies on the federal bench. Fredrickson noted that Grassley and other Republicans “fought like hell to get George Bush’s nominees on the D.C. Circuit when the caseload was not only lower, but they wanted to go right up to the 11th seat and now they say eight is plenty.”

    Fredrickson and the other panelists, including the Alliance for Justice’s Nan Aron, also touched upon discussion in the Senate to alter the filibuster to make it more transparent and a bit more difficult for the obstructionists to abuse. Part of the reason for renewed interest in reforming the filibuster is that Senate Republicans are showing no signs of making it any easier for the president to fill judicial vacancies and some executive branch vacancies.

    See the entire segment below or visit this link.

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  • May 31, 2013
    Guest Post

    by Lisa Heinzerling, Professor of Law, Georgetown Law. Heinzerling is also a Center for Progressive Reform (CPR) Member Scholar. This piece is crossposted at CPRBlog.

    A panel of the Second Circuit Court of Appeals in New York has just taken under consideration the Food and Drug Administration’s motion for a stay of a district court order directing the agency to make levonorgestrel-based emergency contraceptives available to women and girls of any age without a prescription and without other point-of-sale restrictions. In deliberating on this motion, the panel of judges should not, I am sorry to say, take anything the FDA has said in its briefs at face value. The government’s opening and reply briefs on the motion to stay are so full of misstatements and omissions that the court could badly err if it did not take everything the government says with a shaker full of salt.

    One of the factors in deciding whether to grant a stay pending appeal is the likelihood that the moving party will succeed on the merits. The government devotes most of its briefs to this factor. It makes two arguments as to why the court of appeals should find that the government is likely to win on appeal and should thus stay the district court’s order on emergency contraception. Both arguments depend crucially on incomplete and inaccurate renderings of the law and facts of the case.

    Before turning to these arguments, a bit of context is necessary. The levonorgestrel-based emergency contraception at the center of this legal dispute takes two forms. One, Plan B and its generic versions, requires two pills. The other, Plan B One-Step and its generic versions, requires one pill. Both involve the same total dose of levonorgestrel. Despite these obvious similarities, the FDA has worked very hard to treat these drugs very differently; it has made Plan B One-Step available without a prescription to all women and girls over the age of 15, it has apparently blocked nonprescription market access to generic versions of Plan B One-Step for girls under 17, and it has resisted requests to make Plan B and its generic versions available without a prescription to girls under age 17. The district court’s order would make all of these drugs (except Plan B, which is no longer marketed) available without a prescription; the FDA would like to keep treating them differently.

  • May 29, 2013

    by Jeremy Leaming

    The Senate’s obstructionists, meaning the Republican caucus, are urging the U.S. Supreme Court to review and uphold a federal appeals court decision that greatly narrowed or rewrote the president’s power to make recess appointments.

    And that’s not terribly surprising. The case involves vacant seats on the National Labor Relations Board, an agency that Senate Republicans have fought to keep business friendly or inoperative. Republicans have convinced themselves that the NLRB, which was created to protect both rights of workers and employers, is all about making life tough on corporate America. The Senate Republicans are of course deluded, but consistent in their support of the powerful. (The Supreme Court could decide this summer to take the case for review.)

    In January, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit in Noel Canning v. NLRB held that President Obama ran afoul the Constitution when he appointed Sharon Block and Richard Griffin to vacant seats on the five-member agency during a 20-day recess of Congress. Obama made the appointments after Republicans continued to stall on considering the nominations. Article II, Section 2 of the Constitution grants the president authority to make recess appointments. The D.C. Circuit’s opinion was crafted by three-Republican appointees and was widely panned by legal scholars, noting that presidents have for a century used recess appointments to fill executive and judicial vacancies to help keep the government functioning. Also, as Ohio State University law school professor Peter Shane has pointed out, three other federal courts of appeals have ruled the other way, upholding the presidents’ recess appointment powers. (Another federal appeals court, however, has followed the wobbly D.C. Circuit’s opinion, so there is a split among the circuits, which heightens the chance the U.S. Supreme Court will jump into the mix and take Canning for review.)

    In a brief urging the high court to take Canning, 45 Republican senators argued that the D.C. Circuit’s opinion should be upheld. Such appointments, the brief states “have become a means to sidestep Senate confirmation.” They added, “In any case, the President himself has made clear that he will resort to recess appointments, and indeed has done so, precisely to circumvent perceived Senate opposition.” See Sahil Kapur’s reporting on the GOP brief.

    But there is nothing perceived about the opposition Republicans have mounted to hamstring the NLRB and for that matter greatly slow the efforts of the president to fill vacancies on the federal bench, which has resulted in a crisis on the bench with vacancies hovering around 80.

    Today, the Constitutional Accountability Center weighed in on the side of the Obama administration, which has asked the high court to take the case and reverse the D.C. Circuit.