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June 3, 2013
Frank Lautenberg: A True New Jersey Treasure
by John Schachter

When I was in eighth grade in 1978, my social studies teacher, Mr. Stoba, asked the class how long does a U.S. senator serve. While he was looking for the more straight-forward answer, “six years,” I had a slightly different view. It being New Jersey, I answered, “It depends on his crime.” But within five years our state had cleaned up its act to a large degree with Bill Bradley and Frank Lautenberg honorably and honestly representing us in the U.S. Senate.

The death of Senator Frank Lautenberg today has already gotten caught up in the latest political theater. Whom will Republican Gov. Chris Christie appoint as an interim replacement? Might he seriously consider appointing a Democrat (even Cory Booker)? Or will he tack to the far right in an attempt to burnish his credentials with the Tea Party wing of the GOP who have more sway when it comes to the 2016 presidential race?

But before we fall completely into the political morass of New Jersey politics, let’s pause to pay tribute to this unlikely public servant. I had the good fortune of voting for Lautenberg in 1982, his first time on the ballot and my first time casting a vote in an election, having turned 18 that year. Two summers later I served as an intern for the senator in his Washington D.C. office and got to see up close how this dedicated public servant, who had amassed enough of a personal fortune over the years to not have to work another day in his life, took on entrenched interests and tackled seemingly intractable problems – sometimes with a prickly personality that yielded results if not friends in Congress.

Frank Lautenberg is responsible more than any other single individual for the ban on smoking on airplanes that most people take for granted today. (Can anyone under the age of 35 even imagine there was a time not that long ago when people could smoke on planes?) The subsequent restrictions on smoking in public places and the stricter labeling restrictions on cigarettes also owe their existence to the dogged efforts of this former smoker.

Efforts to prevent gun violence – from keeping guns out of the hands of convicted domestic abusers to fighting to eliminate high-capacity ammunition magazines – are the result of Lautenberg’s hard work and dedication. And this New Jerseyan built a strong pro-environment record in a state long plagued by environmental challenges.

Long before he even entered politics Lautenberg accrued an impressive record of personal achievement. He worked nights and weekends while still a teenager to help support his family following his father’s death from cancer. He enlisted in the Army Signal Corps and served in Europe during World War II then, thanks to the GI Bill, attended and graduated from college before starting a company that earned him millions. Perhaps most proudly, he garnered a spot on Richard Nixon’s enemies list thanks to his fundraising for George McGovern’s 1972 presidential campaign.

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Environmental protection, Economic, Workplace and Environment Regulation, Frank Lautenberg, Gov. Chris Christie, Millicent Fenwick
June 3, 2013
ACS President Knocks Senate Obstructionists Over Efforts to Hobble D.C. Circuit
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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Tags:
Other courts, Judicial Nominations, Caroline Fredrickson, filibuster, President George W. Bush, President Obama, Sen. Chuck Grassley, Senate obstructionism, U.S. Court of Appeals for the District of Columbia Circuit
May 31, 2013
The FDA Doubles Down on Its Plan B Troubles
Guest Post
by Lisa Heinzerling, Professor of Law, Georgetown Law. Heinzerling is also a Center for Progressive Reform (CPR) Member Scholar. This piece is crossposted at CPRBlog.

A panel of the Second Circuit Court of Appeals in New York has just taken under consideration the Food and Drug Administration’s motion for a stay of a district court order directing the agency to make levonorgestrel-based emergency contraceptives available to women and girls of any age without a prescription and without other point-of-sale restrictions. In deliberating on this motion, the panel of judges should not, I am sorry to say, take anything the FDA has said in its briefs at face value. The government’s opening and reply briefs on the motion to stay are so full of misstatements and omissions that the court could badly err if it did not take everything the government says with a shaker full of salt.

One of the factors in deciding whether to grant a stay pending appeal is the likelihood that the moving party will succeed on the merits. The government devotes most of its briefs to this factor. It makes two arguments as to why the court of appeals should find that the government is likely to win on appeal and should thus stay the district court’s order on emergency contraception. Both arguments depend crucially on incomplete and inaccurate renderings of the law and facts of the case.

Before turning to these arguments, a bit of context is necessary. The levonorgestrel-based emergency contraception at the center of this legal dispute takes two forms. One, Plan B and its generic versions, requires two pills. The other, Plan B One-Step and its generic versions, requires one pill. Both involve the same total dose of levonorgestrel. Despite these obvious similarities, the FDA has worked very hard to treat these drugs very differently; it has made Plan B One-Step available without a prescription to all women and girls over the age of 15, it has apparently blocked nonprescription market access to generic versions of Plan B One-Step for girls under 17, and it has resisted requests to make Plan B and its generic versions available without a prescription to girls under age 17. The district court’s order would make all of these drugs (except Plan B, which is no longer marketed) available without a prescription; the FDA would like to keep treating them differently.

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Individual liberties, Other courts, Reproductive freedom, Women's rights, birth control, Center for Progressive Reform, CPR, Emergency Contraception, FDA, Food and Drug Administration, Guest Post, Lisa Heinzerling, Plan B, Plan B One-Step, U.S. Court of Appeals for the Second Circuit
May 30, 2013
About That Much-Touted Counterterrorism Policy Shift
by Jeremy Leaming

President Obama’s address to the National Defense University was quickly embraced by many high-profile pundits as evidence the 44th president would actually and finally offer change one could believe in. Specifically, change from the way his predecessor presided over a never-ending war on terror.

As noted here, during his May 23 speech the president provided some lofty rhetoric suggesting significant change was underway to counter intensifying criticism from civil libertarians and human rights advocates that the Obama administration is trampling fundamental constitutional principles and values while waging the so-called war on terror.

The New York Times editorial board lauded Obama’s speech as “the most important statement on counterterrorism policy since the 2001 attacks, a momentous turning point in post 9/11 America. For the first time a president stated clearly and equivocally the state of perpetual warfare that began nearly 12 years ago is unsustainable for a democracy and must come to an end in the not-too-distant future.”

Many other pundits also heralded the speech as a major shift in policy, while others, such as Alex Pareene warned that those concerned about human rights and civil liberties would likely be seriously disappointed.

Today, The Times reported that Pakistani officials said a CIA drone strike had supposedly “killed a top member of the Pakistani Taliban, an attack that illustrated the continued murkiness of the rules that govern the United States’ targeted killing operations.” Before his much-trumpeted counterterrorism speech, The Times reported that the administration would start shifting control of the drone strikes from the CIA to the military.

Obama’s speech received a lukewarm response from the ACLU, which has fought to obtain more information about the administration’s drone warfare. This blog also noted that a mere speech without action would not squelch criticism of counterterrorism efforts that violate U.S. and international law. The president declared early in his first term that we must protect fundamental values, such as due process under the law, as vigilantly as we wage war against terrorists. But such talk has too often proven hollow.

In a piece for The Guardian, Glenn Greenwald scored the president for a trend of advancing rhetoric that doesn’t reflect reality. Greenwald wrote, “what should be beyond dispute at this point is that Obama’s speeches have very little to do with Obama’s actions, except to the extent that they often signal what he intends not to do. How many times does Obama have to deliver a speech embracing a set of values and policies, only to watch as he then proceeds to do the opposite, before one ceases to view his public proclamations as predictive of his future choices?”

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Tags:
Civil rights, Detainee treatment, Executive power, National security and civil liberties, Constitutional Interpretation and Change, ACLU, counterterrorism, Glenn Greenwald, National Defense University, President Obama, War on Terror
May 30, 2013
Two Gateways to Habeas
Guest Post
by Brandon L. Garrett and Lee Kovarsky. Garrett is a professor of law at the University of Virginia School of Law and Kovarsky is an assistant professor of law at the University of Maryland School of Law. They are co-authors of a habeas corpus casebook, Federal Habeas Corpus: Executive Detention and Post-conviction Litigation, which was just published by Foundation Press.

This week, the Supreme Court handed down habeas decisions on two different gateways through procedural obstacles to federal habeas review. The first decision involved an “innocence” gateway. In McQuiggan v. Perkins, the Court held that, despite a constitutional claim’s untimeliness, a federal court could reach the claim’s merit if there exists a reasonable chance that the inmate was wrongfully convicted. The second gateway is a “bad lawyering” gateway. In Trevino v. Thaler, the Court held that inadequate state post-conviction representation can excuse the default of a trial-phase ineffective-assistance-of-counsel (IAC) claim if, as a practical matter, a state post-conviction proceeding was the only forum for a state inmate to raise it. In each case, the Court avoided mechanical readings of statutes or precedents in favor of interpretations that reflect the byzantine reality of modern habeas corpus review.

In the “innocence gateway” case, Floyd Perkins was serving a life sentence in Michigan. Perkins argued that he had new evidence proving his innocence: witnesses would say that another man was the killer, that the other man had bragged he had done it, and that the other man was trying to wash blood-stained clothes the day after the killing. Perkins had been convicted largely based on testimony of the other man, as well as two others who said they overheard Perkins admit his guilt. Perkins argued that his new evidence of innocence entitled him to merits review of his IAC claim, which was untimely under the one-year federal limitations period. He could not, however, show that he had acted with “due diligence” in bringing this evidence to the attention of the judge. He argued that new evidence of innocence should excuse the untimely filing, notwithstanding the technical defects in the petition.

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Tags:
Access to Justice, Habeas corpus, Procedural barriers to court, Supreme Court, AEDPA, Antiterrorism and Effective Death Penalty Act, Brandon L. Garrett, Guest Post, ineffective-assistance-of-counsel, innocence gateway, Lee Kovarsky, McQuiggan v. Perkins, Sixth Amendment, Trevino v. Thaler