Separation of powers

  • January 12, 2010

    Sen. Arlen Specter previously indicated that he was opposed to President Barack Obama's nomination of Dawn Johnsen to head the Justice Department's Office of Legal Counsel (OLC). MainJustice's Andrew Ramonas just reported that Specter has had a change of heart.

    "After voting ‘pass' [which means no position] in the Judiciary Committee, I had a second extensive meeting with Ms. Johnsen and have been prepared to support her nomination when it reaches the Senate floor," Specter said in statement. 

    The nomination of Johnsen, a former ACS board member, now appears to have the support of 60 senators, including Republican Sen. Richard Lugar, (potentially dependent upon the results of next week's special election in Massachusettes.) Specter's new position was made public following an attack by his primary challenger, Rep. Joe Sestak, in which Sestak faulted Specter for Johnsen's nomination remaining in limbo.

  • December 28, 2009
    Guest Post

    By Derek M. Duarte. Mr. Duarte is a practicing attorney at the McNamara Law Firm in California. He also serves on the advisory board for the New Leaders Council, a training program for future progressive leaders.

    As Americans, we often revel in the strengths and virtues of our democratic system. True, we often revile the politicians, their many antics, and the political penumbra that surrounds our nation's capitol, but we take great pride in our democratic system and its carefully constructed balance of power created by the foresight of our founding fathers. We've often called our democracy our greatest export. We've fought wars to bring it to other countries. We believe it is the highest state of enlightened political evolution.

    And to a certain extent we are correct. But our pride makes us believe our democracy is some indestructible concept that will continue to function for all eternity by virtue of its initial ingenuity. Unfortunately, we fail to recognize one critical ingredient that has been a constant necessity for the continuity of our democratic system: Respect. Respect for our democracy. The history of our Constitution is a cornucopia of political conflict incensed by deeply emotional commitment to juxtaposed moral values - slavery, civil rights, and abortion, just to name a few. Nevertheless, our democracy endured these nation-splitting conflicts because the players involved knew that the foundations of our democracy were not in the words of our laws, but in the actions of those in power. They knew that blind adherence to procedural rules in the unrelenting pursuit of political victory must give way at some point to the recognition that an unyielding pursuit of power will ultimately disturb the delicate balance at the center of our democracy.

    The respect for that imperative delicate balance of power has been significantly eroded by the overuse of the procedural filibuster by the Republican minority. The Senate was formed as a compromise between large populous states, and the smaller states in the union. The intention was smaller states would be given equal power in the Senate by virtue of the fact that every state had two representatives, regardless of population. Consequently, while more populous states would be able to force legislation through the House due to their population advantage, they would have to garner the cooperation of the smaller states to achieve passage of legislation in the Senate by a simple majority. The flagrant use of the filibuster significantly alters this dynamic. Now, instead of having to achieve a simple majority vote, Senators are forced to achieve a three-fifths majority (60 votes) to pass any legislation that the minority is vehemently opposed to. Requiring a three-fifths majority on landmark legislation is arguably an acceptable threshold, but requiring it for numerous Senate actions is another matter entirely. The Republicans have used the filibuster over a 100 times this year, meaning that the Republicans have taken a procedural tool and used it an exorbitant amount of times to frustrate the original intended structure of the Senate, which was to pass legislation with a simple majority.

    The abuse of the filibuster reflects a dangerous trend growing in American politics, the entrance of a zero-sum game mentality into our partisan political system. Before, flagrant procedural abuse of this nature was far rarer due to the simple pragmatic reality that it was not wise to take a no-holds-barred approach to advancing one legislative issue because your opponent on this issue may be your ally on another. This dynamic is fast disappearing from American politics. Instead, we now have the zero-sum game mentality. There is Us, and there is Them. And a win for Them, is a loss for Us. This mentality is what allows the current Senate minority to advance its political agenda as if they were engaged in a procedural extreme fighting bout without regard to the future alliances they may be threatening. They no longer see any future alliances with Democrats, just more zero-sum battles, allowing them to ignore the intent and spirit of the Constitution in exchange for a Pyrrhic legislative victory that erodes the essential foundations of our democracy.

    [image via Grundlepuck

  • December 17, 2009

    Amid criticisms of the judicial nominations process, Professor David Fontana of George Washington University published "Going Robe: Obama's judicial appointment strategy isn't working. Here's a better one." in The New Republic today.

    Fontana writes: 

    If Republicans are going to obstruct even moderate nominees, and if Senate Democrats are sometimes going to have to break filibusters to stop them, then why keep appointing generally moderate judges meant to appeal to Republicans? Why not try to put your own philosophical stamp on the courts? 


    The politics of placing liberals on the bench aren't nearly as daunting as the administration seems to think. Democrats have enough votes to break a filibuster, as they ultimately did for Hamilton--and, unlike with health care reform, centrists like Joe Lieberman and Ben Nelson don't seem to be wavering on judicial nominations. Beyond the 60 senators in the Democratic caucus, there appear to be some Republicans who will vote to end a filibuster on principle, even if they won't vote for the nominee. (The Hamilton filibuster was broken by 70 senators, including some Republicans who did not subsequently vote to confirm.)

    Fontana concludes: 

    More importantly, outside the Senate, Obama would have public opinion on his side. Research conducted recently by Stephen Ansolabehere of MIT and Nathaniel Persily and Jamal Greene of Columbia Law School found that 58 percent of Americans thought it very or somewhat important for the Supreme Court to exhibit "empathy" in judging. A majority also supported interpreting the Constitution according to "current realities" rather than according to the "original intentions" of the Framers. These findings are largely consistent with a series of polls conducted by Quinnipiac University over the years.

    The public, in other words, would be perfectly content to watch Obama put his stamp on the judiciary. If only he weren't so fixated on wooing Republican senators who seem determined not to be wooed.

  • December 17, 2009

    Two recent Supreme Court decisions are shuttering courthouse doors to would-be plaintiffs, according to some lawmakers. At yesterday's hearing before the House Judiciary Committee, legislators questioned witnesses about the effects of Bell Atlantic v. Twombly and Ashcroft v. Iqbal, and pondered appropriate legislative responses.

    Daphne Eviatar reports, at The Washington Independent

    House lawmakers appear divided along party lines. Democrats and their witnesses say that the Supreme Court's recent decisions ... have gutted the civil rights and antitrust laws and imposed an unfair and often insurmountable burden that will doom many valid claims. Republicans and their witnesses, meanwhile, say the court did the right thing to help reduce frivolous lawsuits that destroy small businesses and drag busy government officials into court unnecessarily.

    Rep. Jerrold Nadler (D-N.Y.), who testified at Wednesday's hearing, has introduced legislation to effectively turn back the clock to before the Supreme Court's rulings by restoring the previous standard for filing claims.That legislation, HR 4115, the Open Access to Courts Act, was the focus of the hearing.

    Two upcoming, star-studded ACS events address the topics raised in yesterday's hearing.

    • Fri. December 18, 2009 (tomorrow!): At the National Press Club in Washington, D.C., Thomas Perez, chief of the Justice Department's Civil Rights Division, will give an address in the wake of a General Accountability Office finding that civil rights went largely unenforced during the Bush administration. Click here for details, or to RSVP.
    • Thur. January 21, 2010: Top experts examine Twombly, Iqbal, class action requirements and other procedural barriers to courts in two panels moderated by Professor Arthur R. Miller at New York University School of Law in New York City. The panels will follow a keynote address by Anthony Romero, executive director of the American Civil Liberties Union. Click here for more.
  • December 3, 2009

    Congress is poised to release a report on the sharp drop in civil rights enforcement during George W. Bush's presidency. The 180-page General Accountability Office report is being made public today as the House of Representatives kicks off its first oversight hearings on the Justice Department's Civil Rights Division under President Barack Obama.

    "Despite, or perhaps because of, its importance and effectiveness, the Division has always been controversial," Sen. Edward Kennedy wrote last year in the Harvard Law and Policy Review, the official journal of ACS. "Under the Bush Administration, however, the vital cooperation between political appointees and career civil servants in the Division has broken down, with troubling consequences."

    Sen. Kennedy's insights were prescient.

    "When the Bush administration ran the Civil Rights Division at the Justice Department, career lawyers wanted to look into accusations that officials in one state had illegally intimidated blacks during a voter-fraud investigation," reports The Times' Charlie Savage today. "But division supervisors refused to 'approve further contact with state authorities on this matter,' according to a new report by the Government Accountability Office auditing the activities of the division from 2001 to 2007."