Other courts

  • June 18, 2013

    by Jeremy Leaming

    As some Senate Republicans continue to argue for removal of judgeships from the powerful U.S. Court of Appeals for the District of Columbia Circuit, Sen. Judiciary Chairman Patrick Leahy (D-Vt.) is pushing forward for consideration of President Obama’s recent nominations to fill three vacancies on the Court.

    Sen. Leahy announced yesterday that he is planning for a July 10 hearing before the Committee to consider one of the president’s nominees Patricia Ann Millett, a longtime appellate attorney who has earned the ABA’s highest rating. In announcing the hearing, Leahy took on Republicans’ claims that the D.C. Circuit has a light caseload and that the three current vacancies do not need to be filled. Sen. Chuck Grassley (R-Iowa) has introduced a bill to strip judgeships from the D.C. Circuit and move them to other federal appeals court circuits. As the Constitutional Accountability Center has noted, Grassley’s measure has nothing to do with careful restructuring of the federal appeals court bench, and everything to do with obstructionism.

    Leahy’s June 17 statement noted that some of the same Republicans now calling for judgeships to be stripped from the D.C. Circuit argued during George W. Bush’s administration the Circuit “should have 11 judgeships” and they voted to confirm his nominees for the “ninth, tenth, and eleventh seats ….” Leahy then ticked off a number of judicial nominations to other federal appeals courts that Republicans slow-walked, showing no concern about caseloads for those courts.

    “The American people are not fooled,” Leahy said. “Senate Republicans are playing by different rules. In the past 30 years, Republican presidents have appointed 15 of the last 19 judges named to the D.C. Circuit. Now that these three vacancies exist during a Democratic presidency, Senate Republicans are trying to use legislation to lock in their partisan advantage.”

    That advantage has served the interests of the Republican Party. As the D.C. Circuit is currently situated, it has a decisively right-wing tilt and has issued opinions harmful to workers’ rights, the environment and one widely panned opinion on the president’s power to use recess appointments to fill judicial and executive branch vacancies. That opinion, in Noel Canning v. NLRB, has been appealed by the administration.

  • June 13, 2013

    by Jeremy Leaming

    The misconduct complaint lodged against federal appeals court Judge Edith H. Jones is now pending before the powerful U.S. Court of Appeals for the District of Columbia Circuit, reports The Times-Picayune.

    A coalition of civil liberties groups, including the Austin NAACP and the Texas Civil Rights Project, recently filed a complaint against Jones, who is based in Houston and a member of the U.S. Court of Appeals for the Fifth Circuit, alleging she made racist comments during a Federalist Society event earlier this year. Affidavits in the complaint, said that Judge Jones stated that African-Americans and Latinos are predisposed to violence. According to other affidavits she allegedly said, “Mexicans would prefer to be on death row in the United States than in prison in Mexico.”

    Allegedly Jones (pictured) also said cited her religious beliefs in handling death penalty sentences. According to an affidavit, the judge allegedly said that sentencing a person to death gives them the time and opportunity to reconcile with God. In this post, ThinkProgress centers on some of the judge’s wobbly opinion in a sexual harassment lawsuit and erratic behavior on the bench.

    The Fifth Circuit’s jurisdiction includes Louisiana, Mississippi and Texas.

    After news of the complaint surfaced, U.S. Rep. Cedric Richmond (D-La.) said, “The alleged statements, if true, demonstrate personal racial and religious bias as well as questionable legal analysis. These biases are incredibly inappropriate for a sitting jurist at any level, let alone a former chief judge on one of the highest level Article III Courts of Appeal,” TPM reported.

    The Judicial Code of Conduct defines misconduct, in part, as “discriminating against litigants or attorneys on account of race, ethnicity, sex, or other legally protected attribute” or “engaging in partisan political activity or making inappropriately partisan statements ….”

  • June 11, 2013
    Guest Post

    by Sam Kleiner and Dan Sheehan. Kleiner and Sheehan are students at Yale Law School

    In the upcoming fight to confirm judges for the D.C. Circuit, Republicans are going to try to avoid a discussion of the incredible qualifications of the three nominees and instead claim that we don’t need the judgeships at all. Sen. Chuck Grassley (R-Iowa) has introduced a Court Efficiency Act which seeks to transfer three of the eleven judgeships out of the D.C. Circuit because, he argues, they just aren’t busy enough. President Obama, in his Rose Garden address, responded that the Judicial Conference of the United States, chaired by Supreme Court Chief Justice John Roberts, has supported maintaining the level of judgeships at the D.C. Circuit.

    Grassley’s argument is, at best, disingenuous. The D.C. Circuit plays a crucial role in supervising the administrative state with its unique jurisdictional focus on claims arising from the administrative agencies. Throughout the Obama administration, Republicans have focused on criticizing the growth of the administrative state. In his dissent this term in FCC v Arlington, Justice Roberts argued that “the Framers could hardly have envisioned today’s vast and varied federal bureaucracy and the authority administrative agencies now hold over our economic, social and political activities.” With their critique of the growth of the administrative state, it is disingenuous for conservatives to now flip and say that the appeals court that is tasked with the bulk of administrative law doesn’t have enough work.

    While it is true that the D.C. Circuit hears fewer cases than other appeals courts, as Grassley likes to point out, this argument misses the point entirely. As the Chief Judge of the D.C. Circuit, Roberts delivered a lecture in 2005 entitled “What Makes the D.C. Circuit Different?” His answer: the type of case they hear.“One-third of the D.C. Circuit appeals are from agency decisions. That figureis less than twenty percent nationwide,” he noted. With the legislation creating an array of administrative agencies vesting power for review explicitly in the D.C. Circuit, Roberts noted, “Whatever combination of letters you can put together, it is likely that jurisdiction to review that agency’s decision is vested in the D.C. Circuit.”

    While Grassley complains about the limited workload of the D.C. Circuit, an examination of the statistics from the Judicial Conference confirms that his argument is false.

  • June 7, 2013

    by Jeremy Leaming

    Are we over reacting when tossing around Orwellian to describe the federal government’s massive surveillance programs or denouncing President Obama as losing all credibility on this issue, as The New York Times Editorial Board has done?

    We noted one of the massive spying programs yesterday regarding a FISA Court order granting the National Security Agency the power to collect telephone information from Verizon. The Guardian released the FISA Court order in its coverage. Later The Guardian and The Washington Post reported on a program called PRISM where the NSA and FBI are “tapping directly into central servers of nine leading Internet companies [like Google, Facebook and Apple], extracting audio and video chats, photographs, e-mails, documents and connection logs ….” The order to collect telephone data has apparently been made much easier to obtain because of the administration’s sweeping interpretation of a provision in the Patriot Act.

    President Obama today dismissed criticism of the surveillance programs as hype. At a press conference this morning intended to focus on implementation of the Affordable Care Act he was confronted with questions about the two programs.

    Obama first acknowledged he has a duty to protect the constitutional right to privacy and civil liberties, but quickly shifted into defending the massive surveillance programs.

    “The programs discussed over the last couple of days in the press are secret in the sense that they are classified but they are not secret in the sense that when it comes to phone calls every member of Congress has been briefed on this program,” Obama said. “With respect to all these programs the relevant intelligence committees are fully briefed on these programs. These are programs that have been authorized by broad bipartisan majorities repeatedly since 2006. So I think it’s important to understand that your duly elected representatives have been consistently informed about exactly what we’re doing.”

    He claimed that the “intelligence community” is not looking at content of telephone calls, but instead sifting “so-called metadata” for leads of people plotting to engage in terrorism. He then knocked coverage of the two surveillance programs as “hype.” He added that the program of collecting telephone data is overseen by Congress and the FISA Court, which was created by the Foreign Intelligence Surveillance Act of 1978 (FISA).

    With respect to the Internet surveillance program, he said PRISM does not apply to U.S. citizens and that Congress is fully aware of the program and that the FISA Court “has to authorize it.” They are both programs, the president said, that have been approved by Congress and the FISA Court is overseeing them.

    The Dish’s Andrew Sullivan writes, “I don’t find such data-mining for national security purposes to be that horrifying. If that’s the price we have to pay for deterring Jihadist attacks, then we should recognize there’s a trade-off. The problem is that we, the public, cannot judge the gravity of those threats and so cannot even weigh the necessity of giving up our privacy.”  

    Geoffrey R. Stone, a constitutional expert and distinguished law professor at the University of Chicago, in a piece for The Huffington Post says that “based on the facts that have been made public,” the government actions “are neither unconstitutional nor otherwise unlawful under existing law.” Stone, however, adds that he would “personally like to see the interpretation of the Constitution and the state of federal legislation changed in particular ways that might alter this conclusion ….” 

    Both Sullivan and Stone are touching upon the trade-offs that Obama also mentioned during his press conference today. In some instances national security will trump the interests of protecting privacy.

    Others, like The New York Times Editorial Board believe the Obama administration has recklessly expanded the surveillance programs started under his predecessor and given more power to the nation’s unwieldy intelligence apparatus. “The administration has now lost all credibility on this issue. Mr. Obama is proving the truism that the executive branch will use any power it is given and very likely abuse it. That is one reason we have long argued that the Patriot Act, enacted in the heat of fear after the Sept. 11, 2001, attacks by members of Congress who mostly had not even read it, was reckless in its assignment of unnecessary and overbroad surveillance powers.”

  • June 7, 2013
    Guest Post

    by Victor Williams, Clinical Assistant Professor of Law, Columbus School of Law, Catholic University of America

    President Barack Obama engaged in welcome “audacity of hope” when he named three stellar lawyers to the D.C. Circuit, even as his own lawyers were busy taking the court’s Noel Canning ruling to the Supreme Court. Each of his judicial picks -- Patricia Ann Millett, Cornelia Pillard and Robert Leon Wilkins -- built a sterling record since graduating from Harvard Law. Each is a perfect fit for, and transformative addition to, the nation’s second highest court. 

    Obama accurately describes the court as having a unique national jurisdiction and “final say” responsibility. In a 2006 essay, “What Makes the D.C. Circuit Different,” John Roberts explained: “Whatever combination of letters you can put together, it is likely that jurisdiction to review that agency’s decision is vested in the D.C. Circuit.”  Supreme Court nominees are often drawn from the D.C. Circuit; indeed, one of the three vacancies that Obama seeks to fill has been empty since Circuit Judge John Roberts rose to the U.S. Supreme Court.

    Having battled unprecedented partisan confirmation obstruction for the entirety of his tenure, PresidentObama also took opportunity at the Rose Garden announcement to make the case against Senate delay and procedural hurdles. He spoke about past nominees -- of both parties -- unfairly worn down by obstructionist delay. Assertive, while not combative, Obama simply asked the Senate minority not to block up-or-down confirmation votes: “What I am doing today is my job. I need the Senate to do its job.”  

    Republicans Jump the Obstructionist Shark; Noel Canning May Backfire 

    Senate Republicans predictably responded by doubling down on obstruction. Absurdly shouting “court packing” and “intimidation,” the Senate minority quickly launched its campaign of obstruction. The D.C. Circuit’s bench status quo is exactly what the GOP wants; the court’s opinion in Noel Canning v. NLRB serves as best evidence.  The radical ruling nullified the independent labor agency’s legal authority and challenged the legitimacy of over 500 intersession recess appointed officials and judges. Unknown-thousands of acts and judgments by recess appointed officials were tainted as ultra vires. As I argued in the National Law Journal, the congressional pro forma scheduling shenanigans of the past years pale in comparison to the D.C. Circuit panel’s interpretive gimmickry. The ruling rejects 150 years of accepted appointment practice and threatens exponential chaos in regulatory law.