• February 25, 2016

    by Jim Thompson

    In The Huffington Post, Geoffrey Stone, a former ACS Board member and current co-faculty advisor to the University of Chicago Law School Student Chapter, warns against the legal and political ramifications of Senate obstructionism over Justice Scalia’s Supreme Court replacement.

    Many states have voted on legislation that would regulate transgender people’s use of sex-segregated spaces, and one South Dakota bill, if signed into law, would set a discriminatory national precedent, writes Alia Wong In The Atlantic.

    Ahead of Wednesday’s oral arguments in Whole Woman’s Health v. Hellerstedt, Lyle Denniston previews the case for SCOTUSblog.  

    In 2013, Russell Maroon Shoatz filed a lawsuit against the Pennsylvania Department of Corrections, arguing that his prolonged placement in solitary confinement deprived him of basic human rights. A decision in favor of Shoatz would mark the first ruling that solitary confinement imposed for excessive duration constitutes cruel and unusual punishment, reports Victoria Law at The Nation.

  • February 24, 2016
    Guest Post

    by Richard W. Painter, S. Walter Richey Professor of Corporate Law, University of Minnesota Law School; former Associate Counsel to the President and chief ethics lawyer, White House Counsel's Office (2005-2007); co-author of the ACS Issue Brief, “Extraordinary Circumstances: The Legacy of the Gang of 14 and a Proposal for Judicial Nominations"

    The Constitution is clear.  Presidents have four year terms, Senators have six year terms, and Members of the House of Representatives have two year terms. Their powers and responsibilities are carried out throughout their term in office. We do not take a “time out” from orderly government just because it is an election year.

    Justice Antonin Scalia – one of the greatest jurists in the history of Anglo-American law – did not give an excuse for our Country to descend into chaos simply because he departed from us in an election year.

    In an election year as in every other year it is the responsibility of the President to nominate judges, including Justices of the Supreme Court. It is the responsibility of the Senate to advise the President on nominations and to decide whether to give its consent to particular nominations. This includes holding hearings to determine the suitability of a nominee and voting on nominees just as the Senate votes on legislation, treaties and other matters.

    Or does our government simply grind to a halt because it is an election year? Does the President stop nominating people to vacancies in the judiciary and the executive branch? Does the Senate refuse even to hold hearings? Is no new legislation introduced? Perhaps so, if we assume that the only responsibility of the President and both houses of Congress for an entire year is to collect their paychecks and focus only on the election. 

    And so executive branch regulators shouldn’t do anything significant – or perhaps even show up for work – because it is not clear who the new President will be a year from now? And perhaps the military need not take orders from the Commander in Chief for the next year, because after all we will have a new Commander in Chief a year from now?  

    Everything simply shuts down or worse because it is an election year. This is because we are no longer a great power and those who govern us choose to act as if we were a Banana Republic.

    We know, and the members of the Senate Judiciary Committee know, that the Constitution did not intend for it to be this way. This government functions with two houses of Congress and a President until January 20, 2017 and on that day the government will continue to function with two houses of Congress and a President. Our government has the power, and the responsibility, to enact needed laws, to nominate and confirm judges and other officers to fill vacant positions, to take military action if needed and to declare war if our Country is attacked by an enemy. There is no Election Day – much less election year -- exception to any of this.

  • February 24, 2016
    Guest Post

    by Brianne J. Gorod, chief counsel, Constitutional Accountability Center. Find her on Twitter @BrianneGorod.

    The Chief Justice of the Pennsylvania Supreme Court voted to reverse a lower court decision that gave relief to a criminal defendant whom the lower court concluded was the victim of prosecutorial misconduct. The Chief Justice even wrote separately to make clear just how wrong he thought the lower court decision was. At first glance this might seem like nothing unusual, but the conduct the Chief Justice was reviewing was that of lawyers he had supervised as a District Attorney.

    Next week, the U.S. Supreme Court will be hearing oral argument in Williams v. Pennsylvania, in which the Court has been asked to decide whether the Pennsylvania Chief Justice’s decision to participate in that case was lawful. In a Term with a huge number of blockbuster cases (not to mention a new Supreme Court vacancy), Williams hasn’t been getting a great deal of attention. But it should. It’s a case that will test the Supreme Court’s commitment to the fundamental principle, recognized by James Madison at the nation’s founding, that “[n]o man is allowed to be a judge in his own cause.” And it’s a case that will determine whether the American people can feel confident that they will get what the Supreme Court has said the Constitution’s Due Process Clause requires: “[a] fair trial in a fair tribunal.”

    The facts in Williams are truly stunning. In 1986, Terrance Williams was convicted of murder and sentenced to death in Pennsylvania state court. At the time of his trial and sentencing, Ronald Castille was the elected District Attorney of Philadelphia. Castille not only headed the office that prosecuted Williams, he personally approved the pursuit of a death sentence in the case. Decades later (and after Williams’s initial appeals were unsuccessful), a post-conviction court found that the prosecutors in Williams’s case had engaged in “gamesmanship” and “plainly ‘suppressed’” evidence that Williams had been the victim of sexual abuse at the hands of the man he killed. Based on this finding, the post-conviction court granted Williams a new penalty hearing.

    By the time the state appealed that decision, Castille was no longer District Attorney. He had been elected Chief Justice of the Pennsylvania Supreme Court, the court that was now being asked to decide whether attorneys in his office had engaged in misconduct while prosecuting Williams. Because of this obvious conflict of interest, Williams asked that Castille recuse himself, or at the very least, refer his request to the full court for decision. Castille refused to do either. Instead, he joined the court’s opinion reversing the grant of relief and wrote a separate concurrence in which he excoriated both the attorneys who had helped Williams seek that relief and the post-conviction court itself. By deciding to judge the conduct of his own office in a case in which he was personally involved, Castille created a judicial conflict so obvious and so extreme that it violated the Due Process Clause’s guarantee of an impartial justice system.

  • February 24, 2016

    by Jim Thompson

    On MSNBC, ACS Board Chair Cliff Sloan, who served in the U.S. Department of State as Special Envoy for Guantánamo closure, discusses the process of transferring detainees to foreign countries and domestic detention facilities.

    At SCOTUSblog, President Barack Obama explains the qualities he seeks in a potential Supreme Court nominee.

    Paul Campos at Salon rebuts claims that Justice Scalia was a brilliant jurist, writing, “Over and over during Scalia’s three decades on the Supreme Court, if one of his cherished interpretive principles got in the way of his political preferences, that principle got thrown overboard in a New York minute.”

    In The New Yorker, Jeffrey Toobin remembers Justice Scalia as a stubbornly retrospective jurist “nostalgic for a world where outsiders knew their place and stayed there.”

    On Tuesday, Senate Majority Leader Mitch McConnell (R-Ky.) announced that the Republican-controlled chamber will refuse to consider any Supreme Court nominee submitted by President Obama, reports Richard Cowan at Reuters.

  • February 23, 2016
    Guest Post

    by Neil Kinkopf, Professor of Law, Georgia State University College of Law; Professor Kinkopf is the faculty adviser for the ACS Student Chapter at GSU College of Law 

    The C-span video of then-Senator Joe Biden vowing to oppose any hypothetical election year nominee in 1992 calls to mind Casablanca’s Capt. Louis Renault: “I’m shocked … shocked to find” doubletalk in the United States Senate. What would be truly earthshaking would be video evidence of a U.S. senator who did not take diametrically opposed views depending on whether the occupant of the White House was a member of the senator’s political party or the opposing party. This video (along with video of Sen. Schumer vowing obstruction in 2006 and statements from then-Sen. Obama himself) is being waved about as evidence that the Senate may legitimately refuse to perform its constitutional duty to “advise and consent” on any nomination that President Obama might make to fill the Supreme Court vacancy created by Justice Scalia’s death. These arguments should not be taken seriously.

    The individual, isolated statements of Senator Biden, or Schumer, or Obama, or McConnell for that matter, tell us nothing about the real meaning of the Senate’s constitutional advise-and-consent role. More generally, the claim that statements by individual senators should be given any weight in construing the Constitution is profoundly mistaken. Justice Scalia’s own writings on legal interpretation and the use and abuse of legislative history demonstrate quite persuasively the perils of relying on individual statements of legislators: such statements rarely reflect a considered consensus and are often made to promote a political objective, rather than to offer a truly forthright view of the merits of an issue. It is no surprise to learn that Senator Biden, in the wake of his disastrous mismanagement of the Clarence Thomas nomination hearings, was eager to supplicate his political base by making bombastic promises opposing hypothetical election year nominees. 

    This sort of argument is familiar to readers of constitutional law. Its most famous treatment came in the Steel Seizure case, though it dealt with an executive branch political actor rather than a legislator.  The case considered the validity of President Truman’s executive order seizing the nation’s steel mills to avert a labor strike and so to maintain production of munitions during the Korean War. As FDR’s Attorney General, Robert Jackson had written a legal opinion authorizing the president to seize private property under circumstances quite similar to those that prompted Truman’s order. As a Supreme Court Justice, Jackson rejected the position he had taken as Attorney General.  Referring to his legal advice and public statements in support of FDR’s seizures, he wrote “While it is not surprising that counsel should grasp support from such unadjudicated claims of power, a judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself.”