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  • 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. 

  • 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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