• November 3, 2016
    Guest Post

    *This post originally appeared on Crain's Chicago Business.

    by Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor at the University of Chicago

    In recent days, several leading Republicans, including Sens. Ted Cruz and Richard Burr, have argued that if Hillary Clinton is elected president, Senate Republicans should refuse to confirm any of her nominees to the Supreme Court. The very suggestion of such a strategy threatens to undermine core principles of our constitutional democracy.

    The driving motivation for those taking this position has nothing to do with principle. It is about partisan politics, plain and simple. Senate Republicans who refused even to hold hearings on President Obama's nomination of Chief Judge Merrick Garland pretended that the rationale for their stance was the “principle” that a president should not be allowed to appoint a justice in the final year of his term. Although that claim was plainly disingenuous and has no foundation in American history, the advocates of the “no Clinton nominees” position now go even further and insist that the Senate should not confirm any nomination by a president they do not like.

    This is entirely about partisan politics. They do not want to see a change in the ideological makeup of the Supreme Court. The problem, though, is that throughout our nation's history the Senate has consistently confirmed Supreme Court nominees even when they are made by a president of the opposite party and even when their confirmation would shift the ideological direction of the court.

    Indeed, of the 16 justices who have been confirmed in the last half-century, nine of them substantially altered the ideological balance on the Supreme Court. This includes, among others, Warren Burger for Earl Warren, John Paul Stevens for William Douglas, David Souter for William Brennan and Clarence Thomas for Thurgood Marshall. Interestingly, in eight of these nine confirmations, the new justice was nominated by a Republican president and moved the court significantly to the right. Nonetheless, they were confirmed, often by a Democratically controlled Senate.

  • November 3, 2016

    by Caroline Fredrickson

    Let’s project past the partisan noise and hand-wringing of the Nov. 8 election. It is never too early to take stock of judicial nominations in the post-election lame duck session of Congress. 

    Since Senators left the Capitol in September, vacant seats on the federal bench quietly keep growing. On Oct. 31, Judge Donovan Frank of the District of Minnesota retired from a full-time caseload, creating the second vacancy in one of the busiest courthouses in the nation. This seat has been designated a judicial emergency by the Administrative Office for U.S. Courts and is the second one for this District alone. Senators Amy Klobuchar (D-Minn.) and Al Franken (D-Minn.) promptly announced their process for filling these vacancies.

    Now Minnesota has only five full-time federal district court judges. When fully staffed, it has seven. This smaller bench translates into larger caseloads for remaining judges and longer wait times for anyone seeking justice. 

    For a second year in a row, this court will operate with a minimum of one vacancy. The court last year had a vacancy for six months. In a bit of good news, the Senate confirmed Judge Wilhelmina Wright, the first female African American federal judge in Minnesota, to fill the vacancy this past January.

  • November 3, 2016

    by Christopher Wright Durocher

    It is an unassailable truth that the U.S. criminal justice system—from policing on the streets, to prosecuting crimes, to sentencing decisions—disproportionately affects Black Americans. The statistics are familiar enough to anyone paying attention. Black Americans are arrested at twice the rate as whites for drug crimes, even though the two populations use and sell drugs at comparable rates. African Americans are incarcerated at nearly six times the rate of whites. Black men in the federal system face sentences that are 20 percent longer than similarly situated white men. It is perhaps too mundane a fact of our criminal justice system for most people to take note of these disparities any longer.

    Enter two new examinations of race and our criminal justice system—one, a movie by an Academy Award-nominated director and the other, an ACS Issue Brief by an advocate who has spent her career agitating for criminal justice reform. 13TH is director Ava DuVernay’s exploration of the incarceration of Black people in the United States from the ratification of the 13th Amendment to present day. The film pointedly notes that the 13th Amendment abolished slavery, “except as a punishment for crime whereof the party shall have been duly convicted.” Through interviews with historians, policymakers, advocates and the formerly incarcerated, DuVernay assembles a powerful argument that our modern criminal justice system—by design—helps to perpetuate the caste system that our nation supposedly abandoned with the abolition of slavery. In essence, DuVernay marshals history and currently public policy to demonstrate that the mass incarceration of Black Americans is not an accident or unintended consequence of racial, social, economic and legal realities, but a foundational feature of our modern carceral state.

    In her newly published ACS Issue Brief, Racism in the U.S. Criminal Justice System: Institutionalized Genocide?Nkechi Taifa, advocacy director for criminal justice at Open Society Foundations, examines the racial disparities in our criminal justice system through the lens of the International Convention on the Prevention and Punishment of the Crime of Genocide. Taifa asserts that, “the United States has moved beyond institutional racism in the administration of its punishment system, to manifestations of genocide.” Her argument focuses on four elements of genocide that are present, in some form or other, in our criminal justice system: 1) the killing of members of the Black communities, whether through the death penalty or extra-judicial police killings; 2) causing serious bodily injury or mental harm; 3) inflicting conditions designed to bring about physical destruction of Black communities; and 4) imposing measures to prevent births or forcibly transfer children to other racial groups, most notably through the increased incarceration of Black women of childbearing age.

  • November 3, 2016
    Guest Post

    by Ajmel Quereshi, Assistant Counsel at the NAACP Legal Defense and Educational Fund   

    On Election Day, the Supreme Court will hear argument in a highly consequential case about lending discrimination and the subprime mortgage crisis. In this case, the City of Miami is trying to hold Wells Fargo and Bank of America accountable for well-documented deceptive, predatory lending practices. However, the banks, in an attempt to evade liability, are arguing that cities cannot seek relief from them for violations of the Fair Housing Act.      

    Wells Fargo has, of course, recently been in the news for secretly creating as many as 2 million unauthorized loan accounts in response to the company’s loan quotas, prompting investigations by the Department of Justice and even a Saturday Night Live sketch. But the misconduct at issue in the case before the Supreme Court runs far deeper than that: as has been well-documented, several regional and national banks targeted African American communities for deceptive, predatory loans in the lead up to the financial crisis of 2008. One of the most common types of loans used was the predatory subprime mortgage. Subprime mortgages were directed at communities that had been historically denied credit and included hidden fees, undisclosed costs, and masked terms that resulted in ballooning interest rates.  

    In the run-up to the financial crisis, these deceptive and predatory loans proliferated exponentially. In the five years between 1994 and 1999, the subprime mortgage market expanded from $35 billion to $160 billion, and by 2007, totaled approximately $650 billion, roughly 25 percent of the overall mortgage market. A strong undercurrent of prejudice was unmistakable in these predatory lending practices. By 2008, 55 percent of African American mortgage holders nationwide had high-risk, subprime loans, compared with only 17 percent of white mortgage holders. According to a loan officer’s affidavit, lenders used racial slurs in characterizing subprime loans to African Americans, who they referred to as “mud people” receiving “ghetto loans.”

    Accordingly, when these predatory loans all came crashing down, the damage was predictably severe for communities of color. High-risk subprime loans originated between 1999 and 2007 cost borrowers of color collectively between $164 billion and $213 billion. Between 2005 and 2009, a staggering two-thirds of median household wealth in communities of color was wiped out. Waves of foreclosures pushed families out of their homes, causing lasting damage to neighborhoods and livelihoods, depressing property values, and suppressing tax revenues. In cities like Miami, the damage and harm was compounded: reduced tax revenue reduced basic services available to residents. The lost tax revenue also negatively impacted municipal efforts to combat housing discrimination and foster integration.

  • November 2, 2016
    Guest Post

    by Matt Lynch, Steering Committee member of ACS Madison Lawyer Chapter, and Britt Cudaback, President of ACS University of Wisconsin Law School Student Chapter

    In the early months of 2011, while thousands of protesters demonstrated daily against the anti-union laws they advocated, Wisconsin GOP legislators crafted and enacted two measures that made it more difficult for their detractors to vote them out of power:  partisan redistricting and strict voter identification requirements.  While court challenges to the anti-union laws have now largely run their course, the legal battles over Wisconsin’s district maps and voter ID law have taken novel forms—and may soon offer tempting opportunities for the U.S. Supreme Court to bolster the procedural protections for participatory democracy.

    Key players from both sides of those cases huddled with more than 70 attorneys and law students last Thursday night for “Wisconsin Election Law:  Navigating the Thicket,” a panel discussion held at a Capitol Square restaurant overlooking the site of the 2011 demonstrations.  The event was co-sponsored by the Federalist Society, the ACS University of Wisconsin Law School Student Chapter, and the newly formed ACS Madison Lawyer Chapter.  UW Law School Assistant Professor Robert Yablon moderated the discussion.

    New Tools for Political Gerrymandering – and a New Tool to Challenge It

    In Wisconsin, the state legislature is primarily responsible for drawing legislative districts following the census, a system that incentivizes partisan gerrymandering by the majority party. Historically, gerrymandering was associated with comically misshapen districts. Since the dawn of the information age, however, egregious contortions are no longer necessary; parties can achieve the same goals of increasing partisan advantage with more subtle, computerized precision.

    With its 2011 redistricting maps, the GOP-controlled Wisconsin legislature proved just how effective these new tools could be. The following year, all 99 Assembly seats were up for election, and Wisconsin voters cast 200,000 more votes for Democratic Assembly candidates than Republican candidates.  Yet the Republicans won a commanding 60-39 majority.

    That, according to panelist and Wisconsin law professor Bill Whitford, goes so far as to deny the fundamental principle of majority rule. “Of course there’s partisan gerrymandering, always has been,” he acknowledged.  “But questions of degree are vitally important.”

    Whitford believes that a newly described measure holds the key to answering those questions of degree in a simple, objective way. He is seeking to prove it in a lawsuit challenging Wisconsin’s partisan redistricting, Whitford v. Gill, which is awaiting a post-trial decision from a three-judge federal redistricting panel.

    The new measure is the “efficiency gap,” which was described and defended in a 2015 law review article by Nicholas Stephanopoulos and Eric McGhee. The efficiency gap formula takes the total number of votes cast for a party’s candidates for legislative office statewide, then subtracts all “wasted” votes for that party—that is, votes cast for a losing candidate or those in excess of the number needed for a candidate to win. The remaining votes are “efficient,” because they proved necessary to elect a winning candidate.  Partisan gerrymandering seeks to maximize the efficiency of its party’s voters and minimize the efficiency of the other party’s voters; the difference in each party’s efficiency percentages is the map’s “efficiency gap.”

    The 2012 and 2014 Wisconsin state elections showed “efficiency gaps” of more than 10 percent in favor of Republicans—greater than any other state in the country. By comparison, the average efficiency gap in state legislative maps throughout the country between 1972 and 2014 was less than one percent.  But the yearly average has crept upward as more sophisticated tools for voter mapping have emerged; since the 2010 Census, the average gap nationally exceeds three percent in favor of Republicans.