ACSBlog

  • November 7, 2014

    by Caroline Fredrickson, President, American Constitution Society for Law and Policy. Follow her on Twitter @crfredrickson. This piece originally appeared on The Huffington Post.

    Many may despair -- believing the next two years in Washington will be a long slog of tiresome partisan fights with no positive action to improve the lives of Americans. But moping is the last thing progressives should be about.

    Let's talk judicial nominations. Federal courts are vital -- they decide pressing matters every day, whether they are challenges to employment discrimination, corporate malfeasance, or immigration appeals. Do we just throw our hands up on judicial nominations, buying into a lazy argument that nothing much can be done now with a Senate controlled by Republicans? There likely are many important policy matters that will be shelved. But it doesn't have to be that way with judicial nominations. On this front there's work to be done and it can be achieved with an energetic attitude -- not apathy.

    There are 64 vacancies on the federal bench and if we give up on the federal courts that number will spike and we'll have judges with outlandish caseloads and Americans with a sluggish, inefficient court system. Part of the Senate's job is to confirm judges to ensure our country has a well-running judicial system. We know all too well that for much of Obama's presidency, Senate Republicans have obstructed the process, slow-walked the president's nominations while arguing everything was just fine. Republican leaders who will take control of the Senate in the New Year are talking about cooperation and working with President Obama, but let's be ready to hold them to their words.

    Some of the current vacancies can and should be filled during the lame-duck session. Democrats in the Senate need to get over the outcome of the midterm elections in quick manner and fill 25 vacancies, which can be done -- with the right attitude. There are 16 judicial nominees who have been approved by the Senate Judiciary Committee and are ready for up-or-down votes on the Senate floor. There's no excuse for letting those nominees languish. There are also nine nominees, who have had hearings before the Senate Judiciary Committee. The Committee should move those nominations to the Senate floor as soon as possible. This is doable in the lame duck.

    And then the next two years -- again no time for dwelling on what could have been. The Senate Republicans may turn back to their obstructionist ways -- let's hope not. Maybe they'll surprise us on the judicial nominations front and realize this is an area for cooperation. But if not, progressives must be ready to push back and keep up the pressure, reminding as many Americans as possible of the great importance our judicial system is to a well-functioning democracy.

  • November 7, 2014

    by Caroline Cox

    Robert Barnes reports for The Washington Post on the decision of the U.S. Court of Appeals for the Sixth Circuit to uphold bans on same-sex marriage. According to SCOTUSblog, the ACLU has announced that it will be filing for Supreme Court review right away.

    Chris Geidner of Buzzfeed reports that U.S. District Court Judge Ortrie Smith has ruled Missouri’s ban on same-sex marriage to be unconstitutional. 

    In The Atlantic, Olga Khazan explains why personhood amendments continue to fail throughout the country.

    Steven Mazie writes for The Economist about the oral argument for Yates. V. United States, colloquially known as the “fish case.”

    The National Constitution Center provides a podcast featuring Eugene Kontorovich, Michael Ramsey, and Jeffrey Rosen discussing the oral argument for Zivotofsky v. Kerry, the Jerusalem passport case.

    At the blog for Alliance for Justice, Tom Devine writes about Department of Homeland Security v. MacLean, a case that “will have fundamental consequences for whistleblowers and for the country.”

  • November 7, 2014

    by Paul Guequierre

    In what appears to be the circuit split the U.S. Supreme Court has been waiting for, a panel of the U.S. Court of Appeals for the Sixth Circuit upheld same-sex marriage bans in four states Thursday. While this 2-to-1 ruling surely counts as a loss, it may be exactly what proponents of marriage equality have been waiting for. When asked in September when the Supreme Court might take up marriage, Justice Ruth Bader Ginsburg said to keep an eye on the Sixth Circuit. That we did, and now we’re hoping the high court will determine once and for all that marriage equality is the law of the land. 

    Writing for the majority, Judge Joe Sutton said, “When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.”

    Thursday’s ruling was the first time a court at that level has upheld a state marriage ban since the historic victories for marriage equality in 2013 – the striking down of Section Three of the Defense of Marriage Act (DOMA) and the dismantling of California’s Prop. 8. Since then, LGBT advocates have ridden a wave of victories in courts at all levels. (A few weeks ago, in what was clearly the exception, not the rule, a federal judge upheld Puerto Rico’s ban on marriage equality.)

  • November 6, 2014

    by Caroline Cox

    Timothy M. Phelps writes in the Los Angeles Times on President Barack Obama’s fading opportunity to influence the ideology of the judiciary.

    At the Harvard Law & Policy Review, Matthew Skurnik considers the worth of a Supreme Court ruling on same-sex marriage.

    Jess Bravin reports for The Wall Street Journal on Chief Justice John Roberts’ remarks at a celebration for the 800th anniversary of the Magna Carta.

    In The New York Times, Adam Liptak reviews the oral arguments for Yates v. United States, which has the Supreme Court considering whether a fisherman can be convicted of violating a federal law aimed at white-collar crime for throwing back undersized fish into the Gulf of Mexico.

    Richard Re at Re’s Judicata lists the top ten moments during oral arguments, which proved to be “hilarious, insightful, and sometimes surreal.”

  • November 5, 2014

    by Caroline Cox

    At Salon, Luke Brinker considers the implications of the midterm elections on the fight for marriage equality.

    Sarah Kliff at Vox reports on the five personhood defeats for abortion opponents throughout the country.

    Today the Supreme Court hears oral arguments for Yates v. United States. Nina Totenberg of NPR previews the case, which considers whether a fisherman violated the anti-shredding provision of an act passed after the Enron scandal when he threw undersized fish from his boat.

    At the blog for Southern Poverty Law Center, Booth Gunter interviews a 94 year-old Alabama woman on her reflections on poll taxes, literacy tests, and the new measures to limit voting.

    Leslie Griffin writes for Hamilton and Griffin on Rights about the oral argument in DHS v. MacLean, a case that will help define when federal employees are prohibited by law from revealing information that they believe shows a “substantial and specific danger to public safety.”