TheWashington Post recently published a "Letter to the Editor" from ACS President Caroline Fredrickson, which touched on the pernicious influence of campaign contributions on state courts.
In response to a Post article citing efforts by the U.S. Chamber of Commerce to push its agenda through various state courts (perhaps having realized federal courts have already been conquered), Fredrickson cited ACS’s 2013 report, Justice at Risk, which provides an empirical analysis of campaign contributions and their impact state judicial decisions. As Fredrickson noted, the data shows that “the more campaign contributions from business interests that justices receive, the more likely they are to side with business litigants.”
Since its release in June, Justice at Risk has been routinely cited by media outlets across the nation, including: The Atlantic, Mother Jones, The Des Moines Register, The Miami Herald and many others. As former Montana Supreme Court Justice James C. Nelson phrased it in the pages of The Missoulian, Justice at Risk is an “objective, non-partisan report . . . [that] provides critical data on the effect of campaign expenditures on judicial behavior from 2010-2012.”
Cornelia Pillard, who has been nominated by President Obama to the U.S. Court of Appeals for the District of Columbia Circuit, has been favorably reported out of the Senate Judiciary Committee. She still, however, awaits a vote by the full Senate on her nomination. The vote should be held promptly, and should be in the affirmative.
I have no personal or professional connection with Pillard (pictured), but I believe it is important for the Senate to confirm qualified nominees for the federal judiciary, and she is one of them.
I have not seen a record of appellate advocacy as impressive as Pillard’s since I worked in the White House Counsel’s Office on the 2006 nomination of John Roberts to become Chief Justice of the United States.
Pillard has worked with a broad range of distinguished appellate lawyers on a wide range of cases, and she knows how courts properly decide cases. Lawyers like Pillard who have in depth experience in appellate advocacy understand the limited role of judges in interpreting and applying the law and know that responsible judges will not assume the role of elected legislators, who make laws. We would significantly diminish the risk of having an activist judiciary if all or most federal appellate judges were to have appellate advocacy experience similar to Pillard’s before they go on the bench. The Senate should not pass up an opportunity to confirm a nominee who has such experience and who will likely impart some of her wisdom and constraint to colleagues on the court.
The U.S. Court of Appeals for the District of Columbia Circuit with three vacancies is a flashpoint for the partisan battle over judicial nominations. Last week, Senate Republicans blocked the confirmation of Patricia Millet to the D.C. Circuit, using misleading rhetoric about the court’s caseload and accusing President Obama of trying to “pack” the court. (The infographic on the right helps clear up the outlandish court-packing rhetoric being peddled by Senate obstructionists and their allies.)
In addition to Millet, nominees Cornelia “Nina” Pillard and Robert Wilkins are pending before the Senate, with a vote on Pillard scheduled for next Tuesday. Senate Republicans have vowed to continue blocking these nominees, and Senate majority leader Harry Reid (D-Nev.) has indicated that he is open to discussing the so-called “nuclear option” of changing filibuster rules if necessary to get nominees through.
In other judicial nominations news, the Senate Judiciary Committee voted on October 31 to send the nominations of Robert Wilkins (D.C. Cir.) and five district court nominations to the full Senate for confirmation votes. They join other nominations for a total of 15 pending on the Senate floor.
On November 7, President Obama announced four new nominees: Robin S. Rosenbaum (11 Cir.), James D. Peterson (W.D. Wis.), Nancy J. Rosenstengel (S.D. Ill.), and Ronnie L. White (E.D. Mo.).There are now a total of 53pending nominees, and 92current vacancies.
by J. Amy Dillard, Associate Professor of Law, University of Baltimore School of Law
Early next year, the Court will hear argument in Hall v. Florida, a case that many practitioners have awaited since 2002. That year, the Court issued its opinion in Atkins v. Virginia, wherein it held that “the mentally retarded should be categorically excluded from execution.” The 6-3 decision in Atkins marked the great divide between those on the Court who embrace the concept of evolving standards of decency and those who eschew itfor determining which defendants may be put to death and which should be categorically excluded. The Court declined to define the parameters of mental retardation and left that task to the states. Some state legislatures, like Florida, have adopted a constrained definition of mental retardation, relying heavily on an I.Q. of 70 as a bright line.
A fact often overlooked in Atkins is that the majority and Justice Scalia, in dissent, agreed that some people, due to their lack of cognitive capacity, should be excluded from the penalty of death. The majority reached its conclusion after a careful examination of the trends in state legislatures to exclude mentally-retarded defendants from execution. Justice Scalia reached his conclusion after several paragraphs of constitutional hermeneutics, whereby he ascertained that profoundly mentally-retarded defendants were excluded from execution at the time of the framing of the Constitution and its Eighth Amendment prohibition on cruel and unusual punishment. Where the majority and Justice Scalia were at odds was in defining which people fit into the category of defendants who should be categorically excluded from execution. But both the majority and Justice Scalia use the term “mental retardation” as a kind of marker to describe a group of people who must be excluded from the penalty of death.
In 2002, when the Court decided Atkins, the term “mentally retarded” had already fallen from favor among medical and educational professionals, who favored the term “intellectual disability” to describe a person with limited cognitive capacity and limited adaptive functioning. With the publication of the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders in May 2013, the American Psychiatric Association has jettisoned the now-pejorative “mental retardation” and replaced it with “intellectual disability disorder,” a subset of neurocognitive disorders, which include dementia. The APA first embraced the term “mental retardation” in 1961, in an effort replace older, pejorative terms such as “idiocy.”
Yet another appeals court has issued an opinion about a for-profit corporation’s challenge to the contraceptive mandate of the Affordable Care Act. The mandate requires employee health care plans to contain preventive care coverage that includes FDA-approved contraceptive methods and sterilization procedures. This time, the D.C. Circuit ruled in Gilardi v. HHS that the Gilardis, two Catholic brothers who own Freshway Foods and Freshway Logistics and oppose contraception, sterilization and abortion, are entitled to a preliminary injunction because they are likely to succeed on their claim that the mandate violates their free exercise rights as well as the Religious Freedom Restoration Act (RFRA), which prohibits the federal government from “substantially burden[ing] a person’s exercise of religion.” The D.C. Circuit’s action is consistent with the Tenth Circuit’s ruling that the arts-and-crafts chain Hobby Lobby demonstrated that the mandate substantially burdened its exercise of religion, but at odds with rulings against secular, for-profit companies and for the government by the Third and Sixth Circuits.
One aspect of Gilardi is distinctive. Although the Third and Sixth Circuits, ruling for the government, decided that for-profit, secular corporations cannot exercise religion under either the Free Exercise Clause or RFRA, the Tenth Circuit, in support of Hobby Lobby, determined that such corporations are persons who can exercise religion under RFRA. The D.C. Circuit offered a hybrid. Although two judges – Janice Rogers Brown and A. Raymond Randolph – ruled that the Freshway Companies are not persons under either the Free Exercise Clause or RFRA, they nonetheless held that the Gilardis could bring suit because the Freshway Companies are closely held corporations with only the two brothers as owners and shareholders. In that context, the court decided, the brothers suffered a concrete and personal injury and could likely prove that their religion was substantially burdened by the mandate.
The diverse circuit court rulings risk turning the contraceptive mandate issue into a debate over corporate form and institutional rights. If corporations engage in speech under the First Amendment – Citizens United – why can’t they exercise religion?