With the end of Congress' 2009 term, all pending nominations were returned to the President as a matter of standard procedure. Now, eight of those nominations are once again set to be in the Senate's hands.

Steve Benen writes: 

Sam Stein reported that seven judicial and political appointees will be re-nominated by the president, including Dawn Johnsen, who was nominated in March to head the Office of Legal Counsel, but who can't get a floor vote, in part because conservatives disapprove of her opposition to Bush-era torture memos.

The re-nominations can't formally happen until the Senate returns on Jan. 20[.]

Of course, if the president really wanted to shake things up, he could use recess appointments and highlight their necessity in the face of a dysfunctional Senate process....

On a related note, ACS guest blogger Derek Duarte recently published "The Abuse of the Filibuster" on ACSblog here.

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Executions rose last year and may rise again in 2010, as some states attempt to resume lethal injections.

California became the latest state to reformulate their execution procedures this morning after a four-year moratorium ordered by a federal court. In light of evidence that inmates were suffering extreme pain during the application of California's three-drug cocktail, Judge Jeremy Fogel ordered California to submit new procedures for judicial consideration. Those proposals were released today, spanning 25 pages.

In an attempt to overcome related concerns with the three-drug injection, Ohio became the first state ever to execute a prisoner with one drug last month. The precedent has yet to persuade any other state, though concerns with the three-drug injection are not new.

Such concerns led to a standstill on death rows across the country during the winter of 2007-08, as states awaited the Supreme Court's consideration of Baze v. Rees. There, the justices considered a challenge to the widely employed three-drug protocal brought by two Kentucky inmates. The Court, however, sided with the state in a 7-2 opinion announced in April, 2008. Many states followed Kentucky's lead in resuming executions.

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In recent years the U.S. Supreme Court has proved a fair and friendly forum for those asserting claims of retaliation under discrimination statutes such as Title VII of the Civil Rights Act of 1964. In Burlington Northern v. White (2006), the Court explained that an employer can retaliate within the meaning of Title VII with actions short of terminations and other ultimate employment actions. In Crawford v. Metro Gov't of Nashville (2009), the Court ruled that Title VII's opposition clause extended to an employee who was terminated after she participated in an employee's internal investigation.

Both Burlington Northern and Crawford arose out of the Sixth Circuit. Once again the U.S. Supreme Court has plucked another Sixth Circuit Title VII retaliation case from its docket. This time the Court will hear Thompson v. North American Stainless (09-291) to determine whether Title VII's anti-retaliation provision protects an employee who alleged he was terminated in retaliation for his then-fiancée's (now his wife) EEOC claim alleging sex discrimination.

The facts as framed by Thompson certainly reek of retaliation in the layman's sense of the word. Eric Thompson worked for more than five years as an engineer for North American Stainless. Thompson's fiancée, Miriam Regalado, filed an EEOC charge against North American Stainless for gender discrimination. The EEOC notified the company of the discrimination charge on March 7, 2003. Three weeks later, the company terminated Thompson, claiming it was for performance-based reasons. Query - if it really was for performance-based reasons why did the company base its decision only a few weeks after his fiancée's discrimination claim.

Thompson alleged unlawful retaliation under Title VII. The company countered that he was not retaliated against within the meaning of Title VII because he (Thompson) did not actively oppose any unlawful employment practice or participate in any discrimination proceeding. The company contended that Thompson failed to allege that he personally engaged in any protected activity.

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This fall, at American University (AU) in Washington, D.C., ACS Executive Director Caroline Fredrickson moderated a debate about whether to replace the electoral college with a national popular vote in presidential elections. Arguing for the status quo were John Samples, Director of the CATO Institute's Center for Representative Government, and Alexander Belenky, author of How America Chooses Its Presidents. Debating on behalf of a national popular vote were John Koza, Chairman of National Popular Vote Inc., and Jamie Raskin, a Maryland State Senator and Director of the Law & Government Program at AU's Washington College of Law, who previously outlined his positions on the electoral college for ACSblog here.

With several states having made some movement towards embracing the national popular vote, video is now available here of this timely debate. 

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In the latest edition of The New Yorker, Lauren Collins offers a detailed profile of Justice Sonia Sotomayor. As rumors continue swirling about Justice John Paul Stevens' possible retirement, "Number Nine: Sonia Sotomayor's High-Profile Debut" includes a detailed look at the preparations made to ensure Sotomayor's confirmation as the first Latina justice on the U.S. Supreme Court, including her personal visits with an unprecedented number of senators. 

Collins writes: 

Before her confirmation hearings, Sotomayor paid courtesy calls to eighty-nine senators, the most of any Supreme Court nominee. "I had read news accounts of these anonymous comments, so I thought, What's she going to be like?" Senator Amy Klobuchar, of Minnesota, recalled. "It turned out she was incredibly engaging. She was ten minutes early and we ran into each other in the hallway. Most people would be, like, ‘O.K., we're meeting in ten minutes,' but she looked at me, and she goes, ‘I'm here already,' and I said, ‘Well, do you want to come in?' "

Not every senator was charmed by Sotomayor. The day she broke her ankle, she kept an appointment with Senator David Vitter, a Republican from Louisiana. Vitter, Sotomayor later told a friend, was unwelcoming. As they were finishing their meeting, Vitter said, "I want to ask you-do you think if I was you, and I had made the wise-Latina comment that you made, that I would have deserved to be a Supreme Court Justice?"

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After extensive dabate, Congress seems on the verge of passing health care legislation. But courts may offer determined opponents their last avenue of attack.

Last week, Florida Attorney General Bill McCollum suggested that his state may challenge the constitutionality of individual health insurance mandates in court. McCollum, who is running for the Florida governor's mansion this year, announced his concerns about health care reform on the heels of an ACS Issue Brief assessing its constitutionality. 

The Issue Brief was authored by Simon Lazarus, public policy counsel at the National Senior Citizens Law Center and a former member of President Jimmy Carter's domestic policy team. Lazarus argues that individual insurance mandates are "lawful and clearly so - pursuant either to Congress' authority to ‘regulate commerce among the several states,' or to its authority to ‘lay and collect taxes to provide for the General Welfare.'" Lazarus writes that arguments against the constitutionality of individual mandates "appear unlikely to gain traction with the current Supreme Court, and, indeed, represent approaches and theories that have been repudiated by justices across the Court's ideological spectrum."

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The Senate recently confirmed "roughly three dozen" of the Obama administration's nominees, but left dozens more languishing, The Washington Post reported. Regarding nominations to the federal bench, The Post noted that the Senate has confirmed "just 13 judges, including Supreme Court Justice Sonia Sotomayor." The newspaper continued, "Nineteen judicial nominations are pending in the Senate with four referred to lawmakers last week."

In a Dec. 23 press statement, Senate Judiciary Chairman Patrick Leahy blasted conservatives for slowing the nomination process. Leahy said:

I have been calling on the Republican leadership to end the delays and obstruction of judicial nominations and join with us to make progress in filling some of the many vacancies on Federal circuit and district courts. I have done so repeatedly for most of the year, and several times over this last month. Regrettably, as we head into the winter recess and the end of the first session of the 111th Congress, Republican obstruction is setting a new low for the Senate in our consideration of judicial nominations.

The Posted noted, however, that despite opposition on "some judicial picks, the Obama administration has nominated far fewer judges in its first year than did the administrations of George W. Bush and Bill Clinton."

The San Francisco Chronicle reported on the embattled nominations of Magistrate Judge Edward Chen (right) for a federal judgeship in California and Dawn Johnsen to head the Office of Legal Counsel (OLC). The Chronicle stated that both nominations were sent back to the administration for reconsideration. 

Sen. Diane Feinstein told the Chronicle that she hoped the administration would renominate Chen, saying he has a "pristine record" as a magistrate judge.

Opposition to Johnsen, an Indiana University law school professor and former member of the ACS Board of Directors, has been especially protracted, and, in part, has targeted her critique of the OLC during the Bush administration. Attorney General Eric Holder, on numerous occasions, has expressed strong support for Johnsen's nomination.

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Paul M. Smith, a longtime Supreme Court litigator and counsel for the plaintiffs in the landmark Supreme Court case, Lawrence v. Texas, recently talked with the American Constitution Society of Yale Law School about LGBT equal rights advancements, and setbacks. Smith, partner at Jenner & Block LLP and former chair of the ACS Board of Directors, told the Yale Law School chapter that the advancement for equality has been decidedly mixed, but there remained ample room for optimism.

He noted the referenda setbacks in California and Maine, but added, "We have marriage equality in five states, and the flood tide is still running very strongly in the direction of equality. "

"And so I'm very optimistic," Smith continued, "that in the next few years we will continue to make tremendous strides."

Smith also said that advocates for equality should push lawmakers to advance equal rights. "If anything," Smith added, "pressure should be ratcheted up. It [reform] needs to happen." See video of Smith's entire interview here or download it here. The interview followed a recent ACS Yale Law School chapter event, featuring Smith. 

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Wired's David Kravets notes a "landmark" federal court decision of last week that a string of torrent Web sites are unlawful, allowing for massive copyright infringements. Wired said the Dec. 21 decision, while not unexpected, is "the first in the United in which a federal judge found that" torrent or BitTorrent Web search engines are "an unlawful avenue to free movies, music, videogames and software."

The lawsuit was lodged by Motion Picture Association of America (MPAA), and resulted in a summary judgment ruling against www.isohunt.com, www.torrentbox.com, www.podtropolis.com and www.ed2k-it.com, all owned by Gary Fung. The plaintiffs, U.S. District Judge Stephen V. Wilson wrote, "asserted that, through his operation and promotion of the websites, Fung allows users to download infringing copies of popular movies, television shows, sound recordings, software programs, video games, and other copyrighted content free of charge. "

Judge Wilson dismissed Fung's arguments that his sites were distinguishable from other file-sharing sites that have been shuttered for copyright infringements, such as Napster.

The judge wrote in Columbia Pictures Industries, Inc., et al., v. Fung:

These technological details are, at their core, indistinguishable from previous technologies. In fact, Defendants' technologies appear to improve upon the previous technologies by permitting faster downloads are large files such as movies. Such an improvement quite obviously increases the potential for copyright infringement.

Fung told Wired that he was considering an appeal, maintaining that provisions in copyright law should protect Torrent sites that remove content when requested by rights-holders.

[Image via the Law Office of Lisa N. Kaufman.]

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As Americans, we often revel in the strengths and virtues of our democratic system. True, we often revile the politicians, their many antics, and the political penumbra that surrounds our nation's capitol, but we take great pride in our democratic system and its carefully constructed balance of power created by the foresight of our founding fathers. We've often called our democracy our greatest export. We've fought wars to bring it to other countries. We believe it is the highest state of enlightened political evolution.

And to a certain extent we are correct. But our pride makes us believe our democracy is some indestructible concept that will continue to function for all eternity by virtue of its initial ingenuity. Unfortunately, we fail to recognize one critical ingredient that has been a constant necessity for the continuity of our democratic system: Respect. Respect for our democracy. The history of our Constitution is a cornucopia of political conflict incensed by deeply emotional commitment to juxtaposed moral values - slavery, civil rights, and abortion, just to name a few. Nevertheless, our democracy endured these nation-splitting conflicts because the players involved knew that the foundations of our democracy were not in the words of our laws, but in the actions of those in power. They knew that blind adherence to procedural rules in the unrelenting pursuit of political victory must give way at some point to the recognition that an unyielding pursuit of power will ultimately disturb the delicate balance at the center of our democracy.

The respect for that imperative delicate balance of power has been significantly eroded by the overuse of the procedural filibuster by the Republican minority. The Senate was formed as a compromise between large populous states, and the smaller states in the union. The intention was smaller states would be given equal power in the Senate by virtue of the fact that every state had two representatives, regardless of population. Consequently, while more populous states would be able to force legislation through the House due to their population advantage, they would have to garner the cooperation of the smaller states to achieve passage of legislation in the Senate by a simple majority. The flagrant use of the filibuster significantly alters this dynamic. Now, instead of having to achieve a simple majority vote, Senators are forced to achieve a three-fifths majority (60 votes) to pass any legislation that the minority is vehemently opposed to. Requiring a three-fifths majority on landmark legislation is arguably an acceptable threshold, but requiring it for numerous Senate actions is another matter entirely. The Republicans have used the filibuster over a 100 times this year, meaning that the Republicans have taken a procedural tool and used it an exorbitant amount of times to frustrate the original intended structure of the Senate, which was to pass legislation with a simple majority.

The abuse of the filibuster reflects a dangerous trend growing in American politics, the entrance of a zero-sum game mentality into our partisan political system. Before, flagrant procedural abuse of this nature was far rarer due to the simple pragmatic reality that it was not wise to take a no-holds-barred approach to advancing one legislative issue because your opponent on this issue may be your ally on another. This dynamic is fast disappearing from American politics. Instead, we now have the zero-sum game mentality. There is Us, and there is Them. And a win for Them, is a loss for Us. This mentality is what allows the current Senate minority to advance its political agenda as if they were engaged in a procedural extreme fighting bout without regard to the future alliances they may be threatening. They no longer see any future alliances with Democrats, just more zero-sum battles, allowing them to ignore the intent and spirit of the Constitution in exchange for a Pyrrhic legislative victory that erodes the essential foundations of our democracy.

[image via Grundlepuck] 

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The Senate overcame a raft of attempts by conservatives to kill health care reform, passing this morning on a 60-39 vote a "landmark" health care reform bill, as dubbed by The Washington Post.

Conservative pundits and advocates, including the Heritage Foundation and the Federalist Society loudly argued that aspects of the legislation, including the mandate for individuals without health care coverage to purchase it would prove unconstitutional. But many constitutional law experts and progressive advocates countered that Congress has the constitutional authority to pass such policy. On the eve of the vote, ACS published an Issue Brief by longtime public policy advocate and Washington, D.C. attorney Simon Lazarus refuting arguments that individual health care mandates are constitutionally suspect.

Lazarus, the public policy counsel at the National Senior Citizens Law Center (NSCLC) and the former Associate Director of President Jimmy Carter's White House Domestic Policy Staff, maintained that the mandate "is lawful and clearly so - pursuant either to Congress' authority to ‘regulate commerce among the several states,' or to its authority to ‘lay and collect taxes to provide for the General Welfare.' He concluded, in part, that arguments to the contrary "have not basis in law, neither in the grants of authority to Congress in Article I nor in limitations on that authority in the Bill of Rights, nor in the case-law interpreting these provisions."

After the vote on health care reform, in which senators rejected arguments over the constitutionality of the mandates, President Obama hailed the Senate bill as "the most important piece of social legislation since the Social Security Act," The New York Times reported.

See Lazarus' Issue Brief, "Mandatory Health Insurance: Is it Constitutional?" here.

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The New York Times today notes "a lamentable" Supreme Court decision that makes it much more difficult for "Americans to assert their legal rights in court."

The Times' editorial refers primarily to the high court's ruling in Ashcroft v. Iqbal, which gives judges greater discretion to dismiss lawsuits. As the editorial board notes, traditionally civil procedural rules called for plaintiffs to file short statements outlining claims and legal grounds.

The editorial states:

The Iqbal ruling, which followed a similar 2007 ruling applying to antitrust claims, abandoned that approach. Under the court's new regimen, judges must assess the ‘plausibility' of the facts of an allegation before allowing the plaintiff to begin collecting evidence. That gives judges excessive latitude to bury cases based on their subjective views before the evidence emerges and can be fairly weighed.

That appears to be happening already. In a recent article for The National Law Journal, Tony Mauro reports that motions to dismiss based on Iqbal "have become commonplace in federal courts, already producing more than 1.500 district court and 100 appellate court decisions according to a Westlaw search."

The Times does note that lawmakers, such as Rep. Jerrold Nadler and Sen. Arlen Specter are pushing legislation that would return civil procedural rules to pre-Iqbal status. "It is the responsibility of Congress to reopen the courthouse doors," the editorial states.

Next month, ACS will host an event examining access to federal courts, which will include a panel discussion devoted to the recent cases that have stiffened the pleading standards. Professor Arthur R. Miller of NYU Law School will moderate that panel discussion, which will include Steven E. Fineman, Brad N. Friedman, Faith E. Gay, Barbara J. Hart, Richard T. Joffe, Andrew J. Pincus, Alexander A. Reinert, Teresa Wynn Roseborough and Vincent Warren. Executive Director of the ACLU Anthony D. Romero will provide the keynote address for the Jan. 21, 2010 event called, "Access to Justice in Federal Courts." See here for more information about the event. 

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Following a recent National Press Club event on criminal justice policy, the Open Society Institute's Senior Policy Analyst Nkechi Taifa talked with ACSblog about the timeliness for new approaches to dealing with crime. Taifa said that the typical tough-on-crime approaches have failed, and that a new "integrative" approach was needed. She said there is hope now for new criminal justice policies because of "courageous lawmakers," such as Sen. Jim Webb and Rep. Bobby Scott, who have introduced legislation that would advance new approaches to criminal justice.

"Prospects for reform are bright," Taifa said. "The political will is there." Webb and Scott both participated in the ACS event on criminal justice policy. A YouTube clip of Webb's comments is here and a portion of Scott's comments is here. Video of the entire event is available here. Watch Taifa's interview below or download it as a podcast here.

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A growing incarceration rate and great disparities in drug-sentencing are only two of many issues that need to be addressed by new approaches to the nation's criminal justice system, says Catherine Beane, director of Behind the Cycle. Following a recent forum on criminal justice policies, Beane talked with ACSblog about an integrative approach to criminal justice. The approach is also detailed in an article by Nkechi Taifa and Beane published in the Harvard Law & Policy Review, the official journal of ACS. Beane's interview is below and can also be downloaded as a podcast here.

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In this year of the Great Recession, we watched the federal government take unprecedented steps to keep the American economy afloat and workers employed. But smooth functioning of our economy depends on more than banks issuing credit and employers hiring workers. It also depends on the unpaid and often overlooked work of caring for families, much of which is provided by women.

Our economy is built on the invisible and free labor of millions who provide essential care to their families, whether it is the education and socialization of the next generation of workers or the comfort and care of the elderly. Unpaid family carework produces extensive benefits for society, yet we have long relied on the resource of family care without fully recognizing its value and we often go so far as to penalize those who provide it.

In times of economic uncertainty the strains of caring for family, while also working to sustain household income, become even more demanding. Along with much of the workforce, family caregivers fear for their jobs and feel even less comfortable than before asking for or taking time they need to provide care. In fact, many caregivers are working more than ever. Today, women make up half of the U.S. workforce and mothers are the breadwinner or co-breadwinner in two out of every 3 households. As men and male-dominated fields have been hit hard in the recession, families have increasingly relied on women's earnings, which are typically lower than men's and often come without benefits such as health insurance.

The recession's toll on working families highlights the need for legislative action. As I outline in my issue brief, Free Riding on Families: Why the American Workplace Needs to Change and How to Do It, numerous innovative proposals exist that could be implemented at the state and federal level to support the work of families and ensure their economic security. These include, for example, paid family leave, to help workers maintain income in the face of a family expansion or emergency, and paid sick days that allow them to care for ill relatives without fear of losing their jobs.

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