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  • January 9, 2017
    Guest Post

    by Beau Tremitiere, ACS Next Generation Leader and Board Member of the ACS Student Chapter at Northwestern University School of Law

    The nomination of Sen. Jeff Sessions (R-Ala.) to serve as U.S. Attorney General is deeply troubling and more than one thousand law students from around the country have signed this letter to President-elect Trump in opposition to his nomination. We join more than 1,100 law professors and dozens of constitutional scholars in expressing concern over the Senator’s fitness to serve as our nation’s top lawyer and law enforcement official. Few of us harbored false hope that President-elect Trump would nominate a candidate who shares all our values and priorities, but we endeavored to believe he would nominate someone who is, at the very least, committed to our nation’s founding principles of equality, justice and shared opportunity. After all, our country faces some of the most daunting legal and social challenges that we have encountered in our history and progress will be impossible without an Attorney General willing and able to defend the Constitution and protect the interests of millions of underrepresented citizens and immigrants.

    The next Attorney General must be both forward-looking and committed to fixing the unsolved problems of our nation’s checkered past. After decades of misguided policy, there is an emerging socio-political consensus that the “War on Drugs” has been harmful and counterproductive, systematically devastating communities of color and further stigmatizing addiction. Likewise, there is growing recognition of the insidious effects of institutionalized racism and implicit bias in law enforcement, the need for greater accountability and the importance of building trust between community leaders and all actors in the criminal justice system. Wildly disproportionate and racially-biased sentencing schemes for minor, non-violent crimes remain on the books, but the dismantling has finally begun. Among other worrisome economic trends, increasing consolidation in key industries has further entrenched powerful interests, harming small businesses, innovation and consumers alike. While marriage equality is finally the law of the land, the breadth and scope of permissible religious accommodations remain largely unsettled. Legal protections for transgender persons are in flux and in the meantime, they see their basic human rights violated each day. Voting rights for millions of Americans have been stripped away since Shelby County v. Holder, as redistricting, poll closures and voter identification laws threaten to erase the Voting Rights Act’s transformative legacy. These are just a few of the many pressing legal issues that will demand the attention of the next Attorney General on their first day in office.

    As an advocate and aggressive enforcer, the Attorney General can stand up for the oppressed, inspire the disillusioned and hold accountable those who believe they are above the law. While the most inspired Attorney General cannot single-handedly cure our nation’s ills, an apathetic Department of Justice, or worse yet, a Department of Justice committed to undermining progress, can set back social, political and legal gains by decades. Nonetheless, Attorneys General from both sides of the aisle—from Tom C. Clark to Robert F. Kennedy to Dick Thornburg to Loretta Lynch—have consistently embraced their sacred duty and served honorably as the nation’s top law enforcement officer and chief lawyer. Based on his three decades in public life, Senator Sessions has proven himself unfit to serve in this most important and revered position.

  • January 9, 2017
    Guest Post

    by Marissa Brown, Director, Coalition for a Better Court

    Since 1970 every New Year’s Eve at 6:00 p.m., the Chief Justice releases a Year-End Report on the Federal Judiciary. As Chief Justice John Roberts pointed out in 2009, Chief Justice Warren Burger established the report “to discuss the problems that federal courts face in administering justice.”

    In 2016, the spirit of this almost 50-year tradition was broken.

    The most recent Year-End Report on the Federal Judiciary is most notable for failing to discuss the big problems. It is silent on the unprecedented obstruction of a highly-qualified nominee to the Supreme Court of the United Sates.  It did not mention that more than 10 percent of the federal bench is vacant due to the U.S. Senate majority’s failure to perform their duties to give advice and consent to many of President Obama’s judicial nominees. And most damaging of all, it did not address the perception that the court has become polarized and partisan.

    Despite the Chief Justice ignoring the problem in his 2016 report, legal scholars across the political spectrum are concerned about the court’s perception of bias.  Now a more than 200-year old debate is quietly awakening again. One side likes to quote Alexander Hamilton’s writing in Federalist Paper No. 78, presenting a case for permanent tenure of Supreme Court justices as a way to ensure judicial independence. However, reality has smashed this idea that life tenure of justices protects against the politicization of the federal bench.

    Fortunately, there is another compelling proposal articulated by legal scholars that instead of life tenure, each justice should be nominated for staggered, 18-year terms so that each president, regardless of party affiliation, would nominate a Supreme Court justice every two years during the court’s summer recess in non-congressional-election years. With periodic nominations, the justices would more accurately reflect the changes and judgments of society.

  • January 9, 2017
    Guest Post

    by Erwin Chemerinsky, ACS Board Member and Dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    From the first moments of his presidency, Donald Trump risks violating an important constitutional provision: the emoluments clause, which prevents a government official from benefiting from a foreign government. Article I, section 9, of the Constitution states:  “And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.”           

    This provision was meant to restrict the ability of foreign governments to influence American office-holders, a matter of great concern to a fledgling nation. Also, it helps to prevent conflicts of interests. As Edmunds Jennings Randolph said in 1787, “This restriction is provided to prevent corruption.” The clause is meant to be much broader than a prohibition of bribery; it forbids a federal officeholder from receiving anything of value from a foreign country.         

    The emoluments clause has received virtually no attention through most of American history because few issues have arisen concerning it. But Trump’s extensive foreign business holdings mean that this clause is likely to have great significance in the months and years ahead. It is easy to imagine countless ways that Trump’s businesses can benefit from the actions of foreign governments. This is especially so because Trump has yet to act in a way that will reduce the conflicts of interest that are sure to arise because of his many businesses. In fact, Trump has declared: “I can be president of the United States and run my business 100 percent, sign checks on my business.” Trump also has said, “The law is totally on my side, meaning, the president can’t have a conflict of interest.” That, of course, is simply false, including because of the emoluments clause.           

    The emoluments clause applies to all who hold “office” in the United States government. The Office of Legal Counsel of the Department of Justice explicitly has declared that this includes the president of the United States. The clause is broad in what it prohibits. A recent report issued by the Brookings Institution, authored by Norman Eisen, Richard Painter and Laurence Tribe, explained: “The Emoluments Clause is thus doubly broad. First it picks out words that, in the 1790s, were understood to encompass any conferral of a benefit or advantage, whether through money, objects, titles, offices, or economically valuable waivers or relaxations of otherwise applicable requirements. And then, over and above the breadth of its categories, it instructs that the Clause reaches any such transaction ‘of any kind whatever.’”           

  • January 6, 2017
    Guest Post

    *This piece originally appeared on The Huffington Post.

    by Christopher Kang, ACS Board Member and National Director of the National Council of Asian Pacific Americans

    Senate Republicans claim they are “confident” Sen. Jeff Sessions (R-Ala.) will be confirmed to be attorney general, but their rigging of his confirmation process undermines their false bravado. They must be worried that if Americans get to know Sen. Sessions’s record, they would know he is unfit to be attorney general and demand the Senate reject his nomination, just as it did 30 years ago.

    Here are six ways Republicans are stacking the deck.

    1.     Chairman Grassley’s double-standard rush to judgment. As Judiciary Committee Chair, Sen. Chuck Grassley (R-Iowa) has scheduled consideration of two attorney general nominations. He took more than six weeks to schedule the confirmation hearing for Loretta Lynch, who is the first African American woman to serve as attorney general. He took barely six minutes to schedule the confirmation hearing for Sen. Sessions, setting a date even before his records were delivered.

    2.     Sen. Sessions refuses to provide the Senate with his full record—which he has previously argued is a felony and that a judge would consider contempt. In 2010, when Sen. Sessions was Ranking Member of the Judiciary Committee, he charged that a nomination was “‘in jeopardy’ after extraordinary omission of 117 items from Record,” and that the nominee’s “unwillingness to take seriously his obligation to complete these basic forms is potentially disqualifying.” He asserted, “At best, this nominee’s extraordinary disregard for the Committee’s constitutional role demonstrates incompetence; at worst, it creates the impression that he knowingly attempted to hide his most controversial work from the Committee.”

  • January 3, 2017
    Guest Post

    by Ethan Frenchman, Appellate Attorney, Maryland Office of the Public Defender and Arpit Gupta, Professor of Finance, NYU Stern School of Business

    Across the United States, judges routinely require criminal defendants, who have not been convicted of any crime and are presumed to be innocent, to buy their freedom in the form of money bail. As any defense attorney can attest, this system jails the poor and allows the rich to free.

    And because many criminal defendants are poor, the key factor in the incarceration of people awaiting trial is poverty, not their risk to society or their risk of failing to appear in court. As a result, on any given day more than 450,000 people are in jail merely awaiting trial. The human and economic costs of this unnecessary detention are staggering.

    In a study of pretrial detention in Maryland, we found that more than 17,000 people were jailed because they were too poor to pay a bail amount of less than $5,000. Those unable to pay the full amount of money bail set by the court must resort to bail bondsmen, who typically demand 10 percent of the total bail amount as a non-refundable fee for securing the defendant’s release. This means that these people could not buy their freedom for $500. Because we looked at only a fraction of Maryland criminal cases, this statistic dramatically underestimates the total.