ACS Blog

Prof. Gerhardt Says More Judicial Battles Loom for Administration

jleaming@acslaw.org — Thu, 04 Feb 2010 15:22:37 -0500

Following his participation in an ACS forum on the first year of President Obama's judicial nominations, constitutional law expert Michael Gerhardt talked with ACSblog about the challenges the administration faces in the coming year. In an election year, Gerhardt, the Samuel Ashe Distinguished Professor in Constitutional Law at the University of North Carolina School of Law, said we should expect "more friction, rather than less," over the president's judicial nominations. Watch the entire interview below or download it as a video podcast here. Video of the entire ACS event, "Judicial Nominations in the First Year of the Obama Administration" is available here.

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The Danger of Believing Your Own Eyes

Ccassidy@acslaw.org — Thu, 04 Feb 2010 14:02:09 -0500

[Editors' Note: After the break, this post includes the author's first-hand account of a violent crime that may not be appropriate for all readers.]

By Jennifer Thompson-Cannino, a mother and advocate for judicial reform

As I travel across America telling our story, one of the most common questions I hear is, "How long did it take you two to write your book"? It took 25 years.

In July of 1984, I attended Elon College, a small school nestled beside Burlington, N.C. Living off-campus, I studied hard, worked two jobs, and dated my long-term boyfriend. It was a particularly hot summer, with both the temperature and humidity consistently high. My boyfriend and I spent one of those sticky, July days together playing tennis and later going out to dinner. We planned to attend a party that night, but a raging headache sent me home around 9 p.m. and I went to bed under a loud and rattling air conditioning unit hanging over my bed. I never heard the break-in, but the clock read 3 a.m. when I sensed a presence in the room. The sound of feet sliding on carpet and a brush against my left arm sharpened my consciousness.

"Who is it? Who's there?" I asked. In the blink of an eye he was on top of me, and I felt a cold, sharp object go to me throat. My screams were quickly muffled with a gloved hand and the violent command "Shut up or I'll kill you!" Every nerve ending was on high alert; I knew that my life was in grave danger, and there was nothing I could do to prevent him from killing me. Images of my mother and father filing into the morgue flashed through my mind. I would never see another sunset, tell my family that I loved them, attend graduate school or be a mom. I could not defend myself, and this horrible monster knew it.

HLPR Launches New Web Site

jleaming@acslaw.org — Thu, 04 Feb 2010 13:00:42 -0500

Check out the revamped online version of Harvard Law & Policy Review (HLPR), the official journal of ACS. The new Web site includes journal articles and frequently updated content, including commentary on legal and policy issues, book reviews and a forum for student writing. The recent issue of HLPR explores solutions to the nation's soaring incarceration rates and includes articles by Sharon Dolovich, Judge Nancy Gertner, and Nkechi Taifa and Catherine Beane.

Archived journal articles, many influential, are also available online, including a 2008 article by the late Sen. Edward Kennedy called "Restoring the Civil rights Division." That article was cited in a recent speech before ACS by Assistant Attorney General for the Civil Rights Division Thomas E. Perez. Another journal article, by Cornell University scholars Kevin Clermont and Stewart Schwab, featuring information showing that employment discrimination lawsuits face uphill struggles in the federal courts, was highlighted by Senate Judiciary Chairman Patrick Leahy in a committee hearing. A recently featured article on the HLPR Web site, by Columbia Law School professor Jamal Greene studies "originalism" in context of the Supreme Court's ruling in District of Columbia v. Heller, in which the 5-4 majority led by Justice Antonin Scalia found that the Constitution does protect an individual right to posses firearms.

Judiciary Committee Delays Reconsideration of OLC Nomination

Ccassidy@acslaw.org — Thu, 04 Feb 2010 12:01:49 -0500

Dawn Johnsen's nomination to lead the Justice Department's Office of Legal Counsel (OLC) was delayed again by the Senate Judiciary Committee this morning. Johnsen, a former member of the ACS Board of Directors, was first announced as President Obama's OLC nomination in January 2009. After prior support of the Senate Judiciary Committee, Johnsen's nomination spent the better part of 2009 -- a year of unprecedented obstruction -- languishing on the Senate floor without a vote.

The New York Times and The Wall Street Journal published editorials today staking out opposing views on Johnsen's nomination. This battle of the editorial boards follows last week's Los Angeles Times editorial stating that "the obstruction of this nomination is and always has been unjustified."

The Journal's editorial criticized Johnsen for her views on the OLC's role under the Bush administration, when that office produced the infamous "torture memos," noting:

During the Bush years she [Johnsen] has said that OLC gave "horrific legal advice" and "advice premised on an extreme and unfounded view of presidential power to justify desired counter terrorism policies." On issues such as the use of domestic electronic surveillance or interrogation policies, she has called the Bush Administration's practices controversial and "sometimes flatly illegal."

Considering these same facts, The Times editorial called Johnsen "a highly qualified choice" whose nomination has drawn "baseless objections" causing "unreasonable delay."

AG Defends Handling of Christmas Day Bomber

Ccassidy@acslaw.org — Wed, 03 Feb 2010 17:24:08 -0500

Attorney General Eric Holder joined the Obama administration's counterattack on the handling of Umar Farouk Abdulmutallab, who allegedly attempted to bomb a flight landing in Detroit on Christmas Day.

The volley began when critics accused the administration of ignoring national security in favor prosecuting Abdulmutallab in a domestic court. They argued that this was evidenced by detaining Abdulmutallab as a criminal, not as an "enemy combatant." The Attorney General, a former member of the ACS Board of Directors, joined the fray after threats were announced to block domestic trials of terror suspects.

His sharply worded letter to Senate Minority Leader Mitch McConnell reads, in part:

Some have argued that had Abdulmutallab been declared an enemy combatant, the government could have held him indefinitely without providing him access to an attorney. But the government's legal authority to do so is far from clear. In fact, when the Bush administration attempted to deny Jose Padilla access to an attorney, a federal judge in New York rejected that position, ruling that Padilla must be allowed to meet with his lawyer. Notably, the judge in that case was Michael Mukasey, my predecessor as Attorney General. In fact, there is no court-approved system currently in place in which suspected terrorists captured inside the United States can be detained and held without access to an attorney; nor is there any known mechanism to persuade an uncooperative individual to talk to the government that has been proven more effective than the criminal justice system.

Holder's point about the efficacy of the criminal justice system builds on recent reports that Abdulmutallab is in fact cooperating with authorities and providing actionable intelligence. The Attorney General seemed keen to demonstrate the administration's dedication both to the rule of law and national security.

Expert Blasts High Court's Jurisprudence on Race

Ccassidy@acslaw.org — Wed, 03 Feb 2010 14:19:52 -0500

Largely premised on the unanimous Brown v. Board of Education decision, which galvanized the civil rights movement, the U.S. Supreme Court's reputation for protecting minorities' rights is not often challenged. But, according to Harvard Law Professor Michael Klarman, that conventional wisdom
is a myth.

In "Has the Supreme Court Been Mainly a Friend or a Foe to African Americans?" at SCOTUSblog, Klarman argues that, over the course of its history, the Court has repeatedly proven to be "regressive force on racial issues."

By way of example, Klarman observes:

Before the Civil War, the Court sustained the constitutionality of federal fugitive slave laws, invalidated the laws of northern states that were designed to protect free blacks from kidnapping by slavecatchers, voided Congress's effort to restrict the spread of slavery into federal territories, and denied that even free blacks possessed any rights "which the white man was bound to respect." After the Civil War, the Court freed the perpetrators of white-on-black lynchings and racial massacres, and it invalidated a federal law designed to secure blacks equal access to public accommodations. Well into the twentieth century, the Court sustained the constitutionality of state-mandated racial segregation and various southern state measures for disenfranchising African Americans.

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Professor Heather Gerken Urges Congressional Response to Citizens United

jleaming@acslaw.org — Wed, 03 Feb 2010 13:21:47 -0500

The Senate Committee on Rules & Administration considered ways to counter the Supreme Court's Jan. 21 decision that limited Congress' ability to regulate corporate campaign spending. During yesterday's hearing, called "Corporate America vs. The Voter," Yale Law School professor Heather Gerken testified that the Supreme Court "has gradually dismantled key campaign-finance provisions that were designed to protect our democratic system from the damaging effects of money and undue influence." Gerken, a frequent ACS participant, told the Senate Committee that even after the high court's decision in Citizens United v. FEC, there remained avenues "for congressional action." Professor Gerken urged new legislation to "strengthen disclaimer and disclosure rules for corporations' independent expenditures," for regulation to "ensure that shareholders exert meaningful control over corporate spending," and for Congress to "take steps to protect U.S. elections from foreign influence." Gerken's prepared testimony is available here.

Top Military Officials Say Time to End ‘Don’t Ask, Don’t Tell’

jleaming@acslaw.org — Tue, 02 Feb 2010 17:10:39 -0500

Defense Secretary Robert Gates and Adm. Mike Mullen, the chairman of the Joint Chief of Staff, told the Senate Armed Services Committee that "Don't Ask, Don't Tell," the ban on openly gay service members, should be repealed.

"Last week, during the State of the Union address, the President announced that he will work with Congress this year to repeal the law known as ‘Don't Ask Don't Tell,'" Gates said in prepared testimony. "He subsequently directed the Department of Defense to begin preparations necessary for a repeal of the current law and policy.

"I fully support the President's decisions," Gates continued. "The question is not whether the military prepares to make this change, but how we best prepare for it. We have received our orders from the Commander in Chief and we are moving out accordingly. However, we also can only take this process so far as the ultimate decision rests with you, the Congress."

Adm. Mullen said, "No matter how I look at the issue, I cannot escape being troubled by the fact that we have in place a policy which forces young men and women to lie about who they are in order to defend their fellow citizens," The New York Times reported.

Mullen added that "allowing gays and lesbians to serve openly would be the right thing to do."

State Secrets, Torture Case Appealed to High Court

Ccassidy@acslaw.org — Tue, 02 Feb 2010 16:35:41 -0500

Maher Arar is appealing his torture suit to the U.S. Supreme Court, presenting the justices an opportunity to review the controversial "state secrets" privilege asserted by the Bush and Obama administrations. Arar's suit against the United States government stems from his 2002 arrest in New York and transfer to Syria for alleged ties to terrorism. At a prison in Syria, Arar alleges, he was tortured, interrogated and detained for almost a year.

Arar (pictured at right) is a Canadian citizen who successfully sued his government for its role in misinforming the United States about his ties to terrorism. In lower courts here, though, Arar has been rebuffed. The government's assertion of the "state secrets" privilege has barred Arar from presenting evidence necessary to the advancement of his suit.

Third Circuit Opens Gate to Executions in Del.

Ccassidy@acslaw.org — Tue, 02 Feb 2010 12:53:56 -0500

Delaware will resume executions for the first time since 2005, after yesterday's decision by the U.S. Court of Appeals for the Third Circuit.

The unanimous, 47-page opinion stated:

This appeal, brought by a class of inmates sentenced to death by the State of Delaware, presents two main questions for our review. First, we must decide how to interpret the Supreme Court's highly splintered opinion in Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520 (2008), which upheld Kentucky's lethal injection protocol against a challenge under the Eighth Amendment of the Constitution. The second question, whose resolution is largely dependent on the outcome of the first, is whether the lethal injection method employed by Delaware violates the Eighth Amendment. We conclude that, under Baze, an execution protocol that does not present a substantial risk of serious harm passes constitutional muster and that, based on the record before us, Delaware's protocol presents no such risk. Accordingly, we will affirm the District Court's grant of summary judgment for Delaware and dissolve the District Court's stay. [Link added.]

Despite endorsing the state's position, the three-judge panel warned Delaware about its "occasional blitheness" regarding its application of the three-drug protocal used by approximately three dozen states. Without finding qualms rising to the constitutional level, the court did advise Delaware of its "moral obligation to carry out executions with the degree of seriousness and respect that the state-administered termination of human life demands."

Tips on E-Mail Usage in Legal Profession

jleaming@acslaw.org — Tue, 02 Feb 2010 11:54:09 -0500

In an article for the New York State Bar Association Journal, Gerald Lebovits provides tips on how attorneys can effectively use e-mail. In "E-Mail Netiquette for Lawyers," Lebovits, a judge of the New York City Civil Court and adjunct professor at St. John's University School of Law, writes that "Despite its problems, e-mail is an essential tool. Attorneys must make the most of it - so long as the attorney follows this good advice: ‘Think. Pause. Think again. Then send.'"

Lebovits's article, which was noted by Raymond Ward's the (new) legal writer blog, includes an array of tips for lawyers on using e-mail. For example, Lebovits stresses careful editing, before hitting send. "Editing includes more than reading for meaning. It means checking spelling and grammar," he writes. "Informality like making typos or using only lowercase letters is fine between friends. It has no place in professional correspondence. To ensure credibility and respect, avoid grammar and spelling errors. Use your e-mail program's spell-check function. Editing is necessary because ‘[c]lients often can't tell whether your legal advice is sound, but they can certainly tell if you made careless typos.'"

[image via nassaulibrary.org]

Civil Rights and the Greensboro Four

jleaming@acslaw.org — Mon, 01 Feb 2010 18:58:42 -0500

Fifty years ago today, four black college students undertook a simple act of protest that helped accelerate the civil rights movement and changed history forever. Franklin McCain, Ezell Blair Jr., David Richmond, and Joe McNeil entered the F.W. Woolworth's store in Greensboro, N.C., took their seats at the whites-only lunch counter, and asked for coffee and doughnuts. The waitress refused to serve them, but rather than leave the store, the four students remained at the counter in silent protest of the segregation at that store in Greensboro and at lunch counters across the South.

While the Greensboro Four did not pioneer sit-ins, their act of defiance attracted the attention of other students and catalyzed a movement that made national headlines. Their protest reignited forward progress in the Civil Rights Movement at a time when the Movement arguably was lagging. In 1954 for instance, Brown v. Board of Education paved the way for integrated public schools, but desegregation was only occurring at one percent per year; change was long overdue. The success of the sit-ins resulted in many businesses desegregating, which instilled a newfound sense of hope in the movement, and much needed encouragement that segregation would soon be a practice of the past.

Following the Woolworth's protest, black students across the South began to participate in sit-ins at restaurants, swim-ins at pools, read-ins at libraries, and a host of other protests against segregation. Within a year of the Greensboro Four's protest approximately 50,000 individuals took part in sit-ins in more than 100 cities. The wave of protests dealt a significant economic blow to businesses in the south. It was estimated that Woolworth's alone lost $200,000 in business in the months following the Greensboro protest. It was a strategy similar to that used by blacks in Montgomery during the bus boycotts; leverage the economy to disrupt segregationists even as the lingering manifestations of Jim Crow left many blacks in the south with few resources to combat systemic racial injustices.

It worked. Business began to desegregate, Freedom Riders launched a successful, albeit at times bloody, challenge to segregation on interstate busses, Martin Luther King, Jr. led the March on Washington, and just four years after the Greensboro Four left their indelible mark on the Civil Rights Movement, the Civil Rights Act of 1964 outlawed segregation and discrimination in public venues. A heroic act of defiance redefined history of justice and equality.

The Repossession of Strategic Vision and the Rule of Law

Ccassidy@acslaw.org — Mon, 01 Feb 2010 15:54:31 -0500

By Maj. (Ret.) Eric Montalvo, Esq., Senior Litigation Counsel at Tully Rinckey PLLC in Washington, D.C. and former Marine Corps Judge Advocate (JAG). Eric currently specializes in national security law, military criminal law, and military administrative law. He is noteworthy for his work in securing the release of Mohammad Jawad, one of the youngest Guantanamo Bay detainees.

On January 20, 2009 the world changed for a moment. President Barack Obama was sworn in as the 44th President of the United States. He became the first African American to hold this office and one of his first acts as President was to publish the now infamous "transparency memo" on January 21, 2009. This memo highlighted three key policy objectives: 1) government should be transparent; 2) government should be participatory; and 3) government should be collaborative.

This promise of transparency is at best illusive. On January 22, 2010, almost one year to the date that this memo was published, the Obama administration announced that it would be implementing a policy of indefinite detention for 50 or so Guantanamo Bay detainees. The President has decided to travel upon this path in part to "cover up" our use of "harsh interrogation techniques" and intelligence gathering procedures. In theory, the evidence obtained through these techniques cannot be used to successfully sustain a conviction.

If the techniques are that egregious, the President should grant immunity to those who engaged in such conduct so that closure can be obtained and this sad chapter in American history can be closed. Disclosure of the torture techniques that are purportedly no longer sanctioned can cause no harm. If the concern is incitement of the enemy, then the government can pursue National Security Courts or remit the persons to others jurisdictions to be investigated for their alleged war crimes and/or civil crimes.

Senate Hearing: "Corporate America vs. The Voter"

Ccassidy@acslaw.org — Mon, 01 Feb 2010 14:51:30 -0500

With the Senate Armed Services Committee's hearing on "Don't Ask, Don't Tell" scheduled for tomorrow, another hearing on a controversial issue is being overlooked by many.

The Supreme Court's recent campaign finance ruling in Citizens United v. FEC has drawn the ire of some on Capitol Hill. That case -- and how Congress might blunt its force before the mid-term elections -- is the topic of tomorrow's hearing before the Senate Committee on Rules and Administration, entitled "Corporate America vs. The Voter: Examining the Supreme Court's Decision to Allow Unlimited Corporate Spending in Elections."

The witness list includes two ACSblog guest contributors: Professor Heather Gerken of Yale Law School and Democracy 21's Fred Wertheimer, whose immediate reaction to the decision is available here.

[image via www.yellowdoggereldemocrat.org]

Senate Set to Examine ‘Don’t Ask, Don’t Tell’ Policy

jleaming@acslaw.org — Mon, 01 Feb 2010 12:15:44 -0500

The U.S. Senate Committee on Armed Services will revisit the controversial "Don't Ask, Don't Tell" policy, which bars openly gay service members, for the first time in eighteen years tomorrow during a committee hearing. Secretary of Defense Robert Gates and Admiral Michael Mullen, chairman of the Joint Chiefs of Staff, are scheduled to testify. The New York Times reported in today's edition that in White House sessions late last year, President Obama called the policy, which has resulted in the dismissal of scores of lesbians and gay men, "just wrong." Additionally, the newspaper reported that the president did not want his administration to wind up having to defend the constitutionality of the ban in federal court.

"Gay rights leaders say they expect Mr. Gates to announce in the interim that the Defense Department will not take action to discharge service members whose sexual orientation is revealed by third parties ..., one of the more onerous aspects of the law," The Times reported.

In the fall, ACS hosted a national event exploring the efforts to repeal Don't Ask, Don't Tell, which included comments from Erica Alva, a former Marine Staff sergeant, on the corrosive effects of the policy. Video of that discussion is here. Also, following the event, Nathaniel Frank, a senior research fellow at the Palm Center, talked with ACSblog about the history and impact of the policy. See Frank's interview here.