• December 15, 2016
    Guest Post

    by Kyle Barry, Policy Counsel at the NAACP Legal Defense Fund

    A memo released yesterday by a number of organizations, including the NAACP Legal Defense Fund (LDF), revealed gaping holes in Attorney General nominee Jeff Sessions’s response to his Senate Judiciary Questionnaire (SJQ) that preclude the Judiciary Committee from holding a thorough and complete hearing on his nomination. This finding also revealed that, as a nominee, Sessions apparently takes the SJQ far less seriously than he does as a Senator tasked with assessing nominees and that he is unwilling to hold himself to the same standard to which he holds other nominees who appear before the Committee.

    In 2010, when a judicial nominee failed to submit certain materials required by the SJQ, Sen. Sessions described a sacred role for the questionnaire in the confirmation process. In a letter, Sessions said that the failure to report a full list of speeches, panel discussions and publications showed “extraordinary disregard for the Committee’s constitutional role,” and an “unwillingness to take seriously [the] obligation to complete these basic forms” that “is potentially disqualifying.” Sessions argued that the Committee should postpone the nominee’s hearing to “maintain[] the integrity of the Committee’s constitutional advice and consent responsibilities[.]”

    In Sen. Sessions’s view, the obligation to provide full and accurate SJQ responses should be well-known to nominees appearing before the Committee. “[P]racticing lawyers and judges who are asked to fill out the questionnaire know how important full disclosure is,” he said. “They take an oath to accurately and completely respond to the questionnaire we submit to them.”

  • December 12, 2016
    Guest Post

    *This piece originally appeared on The Legal Examiner.

    by Arthur Bryant, Chairman of Public Justice

    The federal government says that court secrecy is preventing it from protecting consumers. To stop that, the U.S. Consumer Product Safety Commission just adopted a formal Litigation Guidance and Recommended Best Practices for Protective Orders and Settlement Agreements in Private Civil Litigation, published in the Federal Register on Dec. 2, 2016. The Guidance urges all judges, plaintiffs, defendants and lawyers, as well as parties wishing to submit amicus briefs, to ensure that every protective and secrecy order and agreement “specifically allows for disclosure” to the “CPSC and other government public health and safety agencies.”

    The CPSC Guidance is an enormously important step forward for consumer protection that could reduce injuries and save lives nationwide. Judges need to make sure all protective and secrecy orders and agreements comply with it. Everyone should follow it. As the deadly, growing series of examples—from Remington rifles to Takata airbags to GM ignition switches—proves, court secrecy injures and kills.

    The danger is real—and avoidable. The Guidance specifically notes that “safety information related to dangerous playground equipment, collapsible cribs, and all-terrain vehicle defects was kept from the CPSC by protective orders in private litigation.” It cites protective orders in current cases involving allegedly defective propane heaters, wheelbarrows, markers, multimeter devices, office chairs and gas cans that prevent the CPSC from learning the truth. There are undoubtedly many more.

    Recognizing that fact, the CPSC advises parties currently negotiating “or already subject to” confidentiality provisions  to “use this Litigation Guidance and the CPSC’s standing as a public-health authority” to create an exception to them ensuring that information can be reported to the CPSC and other relevant agencies. It even provides draft language that could be used.

  • December 12, 2016
    Guest Post

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

    Jeff Sessions should be denied confirmation as Attorney General of the United States.  Sessions is at the far right of the political spectrum and should not be put in charge of federal civil rights and federal environmental enforcement. Although it would take political courage to stand up to the newly elected President, pressure should be placed on moderate Republicans to join Democratic Senators in denying confirmation to Sessions.

    The Civil Rights Division of the United States Department of Justice is responsible for enforcing laws prohibiting race discrimination in voting, employment, housing and policing.  Nothing in Sessions’ career offers hope that he would be other than a disaster in doing so.

    In 1986, Sessions was nominated to be a federal district court judge. He was denied confirmation by the Senate, with even a Senator from his home state of Alabama, Howell Heflin, voting against Sessions. An Assistant U.S. attorney who worked for Sessions, Thomas Figures, testified that he was repeatedly called “boy” by Sessions and was instructed by the Sessions to “be careful what you say to white folks” after Figures spoke assertively to a co-worker. Sessions has said that the NAACP and the ACLU are “un-American” and “communist-inspired” for “trying to force civil rights down the throats of people.”

    As a United States Attorney in Alabama, Sessions did nothing to enforce federal civil rights law, but he did prosecute three black activists for voter fraud, including a former aide to Martin Luther King Jr., Albert Turner. Turner had led marchers across the Edmund Pettus Bridge during the famous “Bloody Sunday” march in Selma, Alabama, on March 7, 1965. Turner and the other defendants were acquitted, but prosecutions like this one likely had a chilling effect on efforts to facilitate voting by racial minorities.

  • December 9, 2016

    by Christopher Wright Durocher

    The optics were stark—12 jurors, six white men, five white women and one black man, sat in judgment of Michael Slager, the white police officer who shot and killed Walter Scott, a black man, in North Charleston, South Carolina. The results were depressingly familiar—a jury unwilling to convict a police officer for unjustified use of force. The question lingers—if prosecutors cannot secure a conviction against a police officer in a case this egregious, can they ever?

    For those who pay attention to the rare cases in which police officers face prosecution for their use of force, the result was eerily similar to the case again University of Cincinnati police officer Ray Tensing. Less than a month ago, Tensing's trial also ended when a predominantly white jury in Ohio—six white men, four white women and two black women—were unable to reach a verdict in his trial for killing Sam DuBose, an unarmed black motorist.

    The disturbing video evidence in the killings of Scott and DuBose, along with the other evidence presented at the trials, make the inability of the juries to reach a guilty verdict difficult to fathom. That is, until you consider who was actually sitting on those juries and what they were being asked to decide. 

    Both juries failed to adequately reflect the racial diversity of the communities from which they were selected. In Slager’s case, his attorney successfully struck seven people of color from the jury pool, leaving only one black juror, even though North Charleston’s population is 47 percent black.  In Tensing’s case, not only was the jury predominantly white, but reports indicate that four jurors agreed with the statement from the juror questionnaire that “Some races and/or ethnic groups tend to be more violent than others.”

  • December 7, 2016
    Guest Post

    *This piece was originally posted as a part of the Harvard Law and Policy Review's Obama Legacy Symposium. 

    by Don Verrilli, Former Solicitor General of the United States

    I was fortunate to be a part of many great moments, in and out of the Supreme Court’s chambers, during my tenure as Solicitor General in the administration of President Obama. But of all the great moments, the one that means the most to me occurred at the end of a grueling three days of oral argument in the historic Health Care Case, when I spoke these words:

    The Medicaid expansion that we are talking about this afternoon and the provisions we talked about yesterday, we have been talking about them in terms of their effect as measures that solve problems, problems in the economic marketplace, that have resulted in millions of people not having health care because they can’t afford insurance.

    There is an important connection, a profound connection, between that problem and liberty. And I do think it’s important that we not lose sight of that. That in this population of Medicaid eligible people who will receive health care that they cannot now afford . . . there will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put upon them and have the opportunity to enjoy the blessings of liberty.

    And the same thing will be true for a husband whose wife is diagnosed with breast cancer and who won’t face the prospect of being forced into bankruptcy to try to get care for his wife and face the risk of having to raise his children alone. And I can multiply example after example.

    In a very fundamental way, this Medicaid expansion, as well as the provisions we discussed yesterday, secure the blessings of liberty. And I think that that is important as the Court’s considering these issues that that be kept in mind.