ACSBlog

  • March 17, 2014
    Guest Post

    by Liz Kennedy, Counsel, Demos

    As we await a decision from the Supreme Court in the McCutcheon v. FEC money in politics case, the Justices themselves heard from a protester who rose in the courtroom to proclaim that “money is not speech, corporations are not people” and to urge the Court to “overturn Citizens United.”

    That this breach was so surprising reminds us how cut-off the Supreme Court is from the life of the country. That separation also comes through in what the Justices had to say in the McCutcheon oral argument. Their comments illustrate flashpoints that underlie the Court’s money in politics cases and shed light on the fundamental fissures we may see in their decision.

    1. Does the Court understand the Real World?

    A fundamental lack of understanding surfaced regarding the real world context in which aggregate contribution limits operate, the implications and enforcement of other rules, and the need for a developed factual record to make informed judgments.

    Several justices expressed concern that the Court was being asked to make a decision that wouldn’t be properly grounded in fact.  Justice Sotomayor expressed surprise that the Court was being asked to determine the potential factual implications of striking the limits almost entirely in the abstract, since determining whether the government interest is sufficient to justify the law is impossible to judge in isolation. Questioning McCutcheon’s attorney on his claim that other laws are sufficient to stop corruption, she said:

    Don’t you need facts to prove or disprove that proposition?

    Justices also questioned the assertion that candidates wouldn’t be aware of who was making large aggregate donations. Justice Kagan observed:

    [A candidate] knows all of his hundred thousand dollar donors, there are not all that many of them. He can keep them all in his head in a mental Rolodex.

    Justice Sotomayor echoed this:

    [I]t’s very hard to think that any candidate doesn’t know the contributor ... I mean, it’s nearly common sense, hard to dispute.

    The Roberts Court has been mistaken about the workings of campaign finance law in the past, for example when it incorrectly assumed all the new money let in by Citizens United would be disclosed and transparent. It is a serious thing that the Court appears uninterested in grappling with a record to establish the real world operation of these rules, since their contestation and resolution is at the heart of these cases.  

  • March 14, 2014
    Guest Post
    by Kanya Bennett, Director of Policy Development and Programming at the American Constitution Society, Angelyn Frazer, State Legislative Affairs Director at the National Association of Criminal Defense Lawyers, and Nkechi Taifa, Senior Policy Analyst at the Open Society Foundations
     
    In 1989, five African American and Latino boys were wrongly convicted of a heinous crime committed in New York City’s Central Park. Filmmakers Ken Burns, Sarah Burns, and David McMahon document their story in The Central Park Five. As PBS describes, The Central Park Five documentary “raises important questions about race and class, the failings of our criminal justice system, legal protections for vulnerable juveniles, and basic human rights.”
     
    And these “important questions” were certainly raised at the February 26th screening of the film hosted by the National Association of Criminal Defense Lawyers (NACDL), Open Society Foundations (OSF), and the American Constitution Society for Law and Policy (ACS). How could our criminal justice system fail on so many different levels, with law enforcement, prosecutors, and defense attorneys falling short? Decades later, why do young men of color remain vulnerable to the same fate as the Central Park Five? Can we point to criminal justice reform that will prevent another case like the Central Park Five?
     
    The Central Park Five featured our criminal justice system at its very worst. The police, with great help from the media, made vulnerable juveniles of color the poster children for violent criminal activities or what they coined a “wilding,” a narrative they held on to even when the evidence suggested another story. Prosecutors played detectives and advanced their case against the boys using this flimsy support. And a lawyer whose job it was to poke holes in the district attorney’s assertions allegedly fell asleep, almost every day, during trial.
     
  • March 14, 2014
     
    On Monday, March 10, the Senate voted in favor of cloture for Carolyn McHugh to the 10th Circuit (Utah) by a vote of 62-34.
     
    On Tuesday March 11, President Obama nominated Leslie Joyce Abrams to the Middle District of Georgia. Her nomination was welcomed by many, including Rep. David Scott (D-Ga.) and Rep. Hank Johnson (D-Ga.). However, criticism of President Obama’s other judicial nominees in Georgia continues.
     
    Also on Tuesday, the Senate continued with four cloture votes on nominees to the Eastern District of Michigan:
     
    Matthew Leitman to the E.D. of Michigan, 55-43;
    Judith Ellen Levy to the E.D. of Michigan, 56-42;
    Laurie Michelson to the E.D. of Michigan, 56-43; and
    Linda Parker to the E.D. of Michigan, 56-42.
     
    With successful cloture votes, the Senate was able to vote on the confirmation of these five nominees on Wednesday. All five were confirmed, four with no opposition.
     
    Carolyn McHugh to the 10th Circuit (Utah), 98-0;
    Matthew Leitman to the E.D. of Michigan, 98-0;
    Judith Ellen Levy to the E.D. of Michigan, 97-0;
    Laurie Michelson to the E.D. of Michigan, 98-0; and
    Linda Parker to the E.D. of Michigan, 60-37.
     
    Carolyn McHugh will be the first woman from Utah to sit on the 10th Circuit.
     
  • March 14, 2014
     
    At a recent meeting of the ACS Board of Directors, two new members were approved to join its ranks. Julie Fernandes, a senior policy analyst at the Open Society Foundations (OSF), and David C. Frederick, a partner at Kellogg, Huber, Hansen, Todd, Evans & Figel PLLC, are the latest additions to an already distinguished Board of leading attorneys, scholars and citizens.
     
    “ACS is grateful that these two outstanding professionals are joining our Board,” said ACS President Caroline Fredrickson. “We look forward to their input and guidance in nurturing a robust network of people committed to promoting and protecting the progressive values and principles of the Constitution.” ACS Board Chair David M. Brodsky also welcomed the new members, saying, “We are pleased that these two exceptional individuals have a made a commitment to serve and support ACS at the highest level.”
     
    Before joining OSF, Fernandes was deputy assistant attorney general for civil rights at the U.S. Department of Justice. A former special assistant to President Bill Clinton at the White House Domestic Policy Council, she brings a wealth of experience in advocacy and public policy.
     
    As a longtime appellate attorney, Frederick has argued more than 70 appeals, including 41 in the Supreme Court, in every U.S. Court of Appeals and in three state supreme courts. He also served in the U.S. Department of Justice as assistant to the Solicitor General and counselor to the Inspector General.
     
    Learn more about ACS leadership at our website.
  • March 14, 2014
     
    Yesterday, President Obama requested a review of the administration’s enforcement policies for immigration laws. The White House asked Secretary of Homeland Security Jeh Johnson to oversee the process. Seung Min Kim and Reid J. Epstein at POLITICO report on the president’s effort to create a more humane immigration system.
     
    In 1975, Sen. Frank Church (D- Idaho) organized a Senate committee to review American intelligence activities.  Referred to as the Church Committee, the group uncovered secret wrong-doings by the U.S. government.  Frederick A. O. Schwarz, Jr. at The Nation argues “why we need a new Church Committee to fix our broken intelligence system.”
     
    Mississippi lawmakers voted to “study” a bill that gay rights activists believe would promote discrimination on the basis of religion. Adam Serwer at MSNBC comments on “the latest setback for the religious right.”
     
    Writing for Voices at the Open Society Foundations, Viorel Ursu explains why Ukraine’s future will be decided “by the new government’s response to the fundamental demands for justice.”
     
    At The Atlantic, Andrew Cohen notes the “problem of lengthy delays in capital cases.”
     
    Dan Markel at Prawfsblawg breaks down a new paper by Larry Krieger that helps answer the question, “What makes lawyers happy?”