Other courts

  • May 29, 2013
    Guest Post

    by Sam Kleiner, a law student at Yale Law School and member of the ACS Yale Law School Chapter.

    In his widely-noted speech at the Oxford Union, Harold Koh (pictured) invited us to imagine a different response to September 11. It's easy to think that the path taken by the Bush administration was driven by a pre-destined sense of necessity, and Koh's invocation of a President Gore (a timely counter-factual with Justice Sandra Day O'Connor's musings on that election and the Supreme Court’s involvement), offers an alternative/hypothetical response in the time-tested law enforcement approach.

    At Lawfare, Ben Wittes defends the Bush administration’s record as oriented on a law enforcement approach. Koh argued that the Obama administration's approach "combined a Law of War approach with Law Enforcement and other approaches to bring all available tools to bear against Al Qaeda" and Wittes countered that this description fit the Bush administration's approach. 

    Contrary to Wittes’ attempt to frame the Bush administration as focused on law enforcement, President Bush specifically rejected this approach and attacked candidate John Kerry for suggesting this path forward. In 2004, when Kerry emphasized his background as a prosecutor and urged that terrorism be considered through a law enforcement lens until it became a "nuisance," Bush attacked him vehemently. Kerry argued for an approach that was, "less of a military operation and far more of an intelligence-gathering law enforcement operation." Bush responded: "I disagree -- strongly disagree. … After the chaos and carnage of September the 11th, it is not enough to serve our enemies with legal papers. With those attacks, the terrorists and their supporters declared war on the United States of America, and war is what they got." Wittes boasts of a more restrained argument from the Bush administration and he cites a 2006 speech by John Bellinger and a Bush administration brief filed in Boumediene (after losing hugely in RasulHamdi and Hamdan), of a more restrained vision of the war on terrorism. Bush did move away from the GWOT framing in his second term largely because he had been thwarted by the courts and Congress. What Koh invites us to ponder -  and Wittes fails to comprehend - is that you could have had a response to 9/11 that started with a deeply powerful law and order framework rather than heading down the rabbit hole by making outlandish claims of unilateral executive power that threatened constitutional order. By 2006, it was too little too late.

  • May 28, 2013

    by Jeremy Leaming

    Some beltway pundits have long-pleaded with the Obama administration to “flood-the zone,” Washington-speak – in this instance – for making a lot more nominations all at once to the federal bench.

    These pundits may have a bit to celebrate if President Obama puts forth three nominations to vacant seats on the 11-member U.S. Court of Appeals for the District of Columbia Circuit, as The New York Times reports may happen soon. That Court noted here often, is one of the more powerful among the appeals circuit courts, in part, because of the myriad and weighty constitutional concerns it rules on, many of which center on federal regulations. As The Times and many others have pointed out the D.C. Circuit has tilted rightward, thanks in part to the fact that an overwhelming majority of its senior judges are Republican-appointees. The Times noted the D.C. Circuit “has overturned major parts of the president’s agenda in the last four years, on regulations covering Wall Street, the environment, tobacco, labor unions and workers’ rights.”

    The Times reports that the potential nominees -- the White House would not comment on nominations not yet made – include three “experienced lawyers who would be unlikely to generate controversy individually.”

    But Sen. Minority Leader Mitch McConnell (R-Ky.) and Senate Judiciary Committee Ranking Member Chuck Grassley (R-Iowa) despite their protestations to the contrary have worked to stall or scuttle too many of the president’s judicial and executive branch nominations. The D.C. Circuit, at the moment is a business friendly outfit, recently issuing an opinion undermining the workers’ rights, is especially important to both leaders. Last month as Senate Judiciary Committee was conducting its hearing on Sri Srinivasan, the only Obama nominee to be confirmed the Court (finally), Grassley introduced a bill that would eliminate three judgeships on the D.C. Circuit and transfer them to the other circuit courts. In part Grassley argued that the D.C. Circuit’s caseload is light and other circuits need the judgeships more. Grassley’s effort has been blasted by the Constitutional Accountability Center’s Judith E. Schaeffer as a “ploy to give cover to Senate Republicans who have no intention of letting a Democratic president fill those three vacancies on the D.C. Circuit.”

    The right-wing editorialists at The Wall Street Journal lauded Grassley’s effort saying President Obama, upset with the D.C. Circuit’s rulings, was aiming to “pack” the Court with judges to alter its ideological make-up.

    Russell Wheeler, an expert on federal courts, disagreed in an ACSblog post, citing a 1996 speech by the late Chief Justice William Rehnquist in which he noted the right of presidents to place their imprints on the judiciary. Rehnquist, Wheeler wrote, said, “When vacancies occur … on any of the federal courts, replacements are nominated by the President, who has been elected by the people of the entire nation, and subject to confirmation by the Senate, whose members have been elected by the people of their respective states. Both the President and the Senate have felt free to take into consideration the likely judicial philosophy of federal judges.”

  • May 22, 2013

    by Russell Wheeler, Visiting Fellow, Governance Studies, The Brookings Institution

    The U.S. Court of Appeals for the District of Columbia Circuit (CA-DC for short) has more vacancies, and a greater proportion of vacancies to judgeships, than any other federal appellate court. Appointees of President George W. Bush or his father hold four of the court’s 11 judgeships, and appointees of President Clinton hold three. Six senior judges, all but one Republican appointees, are on the draw but able to take reduced caseloads.

    Senate Republicans and their press allies believe the status quo is basically fine. They refused to allow a vote on one Obama nominee, Caitlin Halligan, bowing to National Rifle Association claims that she’s too liberal to serve in the federal judiciary. They appear willing to allow a vote on a second Obama nominee, the very capable Srikanth Srinivasan, who has served in both the Bush and Obama Justice Departments.

    But, they say, Srinivasan is enough. Why? The reason most commonly offered is that CA-DC doesn’t need more judges because it has a light caseload. Ranking Senate Judiciary Committee member Charles Grassley said, correctly, that its 108 filings per judgeship in 2012 was lowest in the country.

    Others respond, just as correctly, that raw filings hardly tell the whole story of a court’s workload. It’s impossible to compare accurately the workloads of the 13 courts of appeals because the federal judiciary has developed no accurate way to “weight” different case types in those courts—as compared to the fairly sophisticated method for weighting district court caseloads.

    But there is no doubt that CA-DC has a heavy docket of appeals from decisions of federal administrative agencies, appeals that do not benefit from initial review in the district courts. Former CA-DC chief judge Patricia Wald recently described them as “the most complex, time-consuming, labyrinthine disputes over regulations. . .cases [that] require thousands of hours of preparation by the judges, often consuming days of argument, involving hundreds of parties and interveners, and necessitating dozens of briefs and thousands of pages of record — all of which culminates in lengthy, technically intricate legal opinions.”

  • May 21, 2013

    by Jeremy Leaming

    Sen. Chuck Grassley (R-Iowa) a champion of obstructing President Obama’s nominations to the federal bench and some to executive branch positions, has focused special attention on the U.S. Court of Appeals for the District of Columbia Circuit.

    The D.C. Circuit is a significant court that hears high-profile national security concerns and cases regarding federal regulation, among other lofty matters. Patricia Wald, retired, served on the august Circuit court for 20 years, including five as its chief judge. She noted in a piece for The Washington Post, “Aside from the U.S. Supreme Court, it resolves more constitutional questions involving separation of powers and executive prerogatives than any court in the country.”

    The eleven-member court has four vacancies and President Obama has yet to fill one of them, because of Senate obstructionism. Senate Republicans twice scuttled Obama’s nomination of Caitlin Halligan to fill one of the Court’s vacancies. Some pundits say too much focus is placed on increasing obstructionism and grope for other excuses for the federal bench’s high vacancy rate. (See JudicialNominations.org for more on the vacancies.) But those pundits are simply uniformed or disingenuous. Republicans, led by the ringleader of obstruction, Sen. Mitch McConnell (R-K.Y.) have stalled nominees to the Circuit courts and even some to the federal district courts. At The Dish, Andrew Sullivan has blasted the GOP for its rampant obstructionism, in reporting on a Party that has become increasingly hostile to governing.

    The D.C. Circuit with its four Republican appointees and three Democratic appointees has eagerly invalidated regulations to protect the environment, which is good for corporations, bad for humans, and earlier this year issued an opinion re-writing the president’s recess appointment power. Several of the D.C. Circuit's judges are also on senior status, which means they have much more flexibility in what cases they participate, and a greater chance exists that a three-judge panel will more often be made up of three Republican appointees. It’s a Court that caters to corporate interests, which is likely one, if not the compelling reason, Grassley and other Republicans are striving to keep Obama from placing judges on the Court.

    Grassley a part of the apparatus that blocked Halligan has not, so far, stood in the way of another nominee to the D.C. Circuit, Sri Srinivasan. But Grassley is pushing legislation that would cut the number of judges on the bench, signaling an effort to make sure the president has no more chances to shape the make-up of the D.C. Circuit. Grassley would move judgeships to the U.S. Court of Appeals for the Second Circuit and the U.S. Court of Appeals for the Eleventh Circuit.

    Part of Grassley’s push entails the canard that the D.C. Circuit has a light caseload. The Constitutional Accountability Center’s Judith E. Schaeffer in post for the group’s Text & History blog blasted Grassley’s effort as a “partisan sham.” She continued, adding that the Grassley effort amounted to “a ‘mass filibuster’ of President Obama’s future nominees to this critical circuit court. Senator Grassley’s bill is nothing more than a ploy to give cover to Senate Republicans who have no intention of letting a Democratic president fill those three vacancies on the D.C. Circuit.”

    The right-wing editorial board of The Wall Street Journal has also joined Grassley’s cause. In a May 20 editorial, it apes Grassley’s talking points, saying the D.C. Circuit “doesn’t need the judges. The D.C. Circuit is among the most underworked court in the federal system.”

  • May 20, 2013

    by Jeremy Leaming

    For decades Religious Right activists have cultivated a wobbly narrative, championed by pundits like Bill O’Reilly, of a secular America striving to erase Christianity from the public square.

    These activists, such as the Family Research Council and the American Family Association and televangelists like Pat Robertson and the late Jerry Falwell, often blamed the Supreme Court for leading the way.

    First, they have argued the Supreme Court yanked prayer and Bible readings from the public schools in the cases Engel v. Vitale and Abington v. Schempp. But neither of those cases did such things. Instead the Supreme Court in those cases prohibited organized religion in the public schools. In other words public school teachers and administrators had to stop leading students in religious activities. Those cases did not outlaw prayer or religion in the public schools; they just found that such activities must be truly student initiated.

    There’s also the annual farce dubbed the “war on Christmas,” where, supposedly, secularists roam city halls and public squares demanding the removal of all vestiges of religion. There are also Supreme Court cases involving these clashes between government officials and individuals bent on festooning public spaces with religious and non-religious symbols. The cases can seem a bit absurd, but a takeaway -- if public officials open their public buildings and spaces to say a nativity display they’d better be prepared to open them to displays of other holidays celebrated during the winter and some secular symbols too, like giant candy-canes or snowmen. For too many Religious Right activists, however, it’s not enough to decorate churches and private homes with religious symbols of the holiday season, they must also adorn government buildings with them and if government officials don’t comply they’ll point to a “war on Christmas.”

    Then there are government meetings and activities. From coast to coast there are city and town councils and other government bodies that like to open their public meetings with prayer. The use of prayer in government work has a long history. On the federal level, both chambers of Congress open each day with chaplains providing invocations and a marshal opens Supreme Court sessions, with “Oyez, oyez, God save the United States and this Honorable Court.”

    As the nation has evolved, however, and become more diverse, unsurprisingly you’ve had more and more people question the use of prayer during government sessions. And here again, you have a ripe opportunity for Religious Right zealots to complain about attempts to force government officials to either forgo prayer altogether at their official functions or mix it up and include invocations from all kinds of religious groups.

    The Supreme Court has touched upon prayer during government sessions, and today the Roberts Court agreed to consider a case – Town of Greece v. Galloway – that allows the high court to revisit precedent on government and prayer. The case arises from Greece, N.Y. where Christian prayer has frequently been used to open town board meetings. As The New York Times’ Adam Liptak reports the town’s prayer policy has been in place since 1999 and town officials have said that people of all faiths, including atheists, can offer invocations.