The 2009 ACS National Convention included a lively discussion between six esteemed Circuit Court judges, and moderated by former New York Times Supreme Court reporter Linda Greenhouse on Saturday, June 20. Participants included Judges Marsha S. Berzon, Ninth Circuit U.S. Court of Appeals; Karen Nelson Moore, Sixth Circuit U.S. Circuit Court of Appeals; Stephen Reinhardt, Ninth Circuit U.S. Court of Appeals; David S. Tatel, D.C. Circuit U.S. Court of Appeals; J. Harvie Wilkinson, Fourth Circuit U.S. Court of Appeals; and Ann C. Williams, Seventh Circuit U.S. Court of Appeals. 

Speaking on the importance of experience and judges' proper role in our judiciary, Judge Wilkinson warned, "On the bench, we're all lawyers and we're drawn from a narrow sub-stratum of the legal profession itself .... If you just sally forther under the banner of 'doing justice' you can make serious and grave mistakes."

Judge Reinhardt replied, "You can make even more serious mistakes if you don't look for justice."

The full plenary panel discussion, entitled "Improving the Courts: The Perspective from teh Bench," is now available here.

The Supreme Court issued a narrow decision in the case raising the constitutionality of Congress' reauthorization of a key portion of the Voting Rights Act, holding that a Texas utility district could seek exemption from the Act. In Northwest Austin Municipal Utility District v. Holder, the high court ruled 8-1 that all parts of a government entity must be given the option to seek exemption of the Civil Rights Act's provision mandating that they get approval from the federal government for any changes in their election laws. Sec. 5 of the Voting Rights Act requires all or parts of 16 states, including Texas, to get federal approval before implementing changes to their election laws. The Northwest Austin Municipal Utility District Number One, which was created to deliver city services to parts of Travis County, Texas, lodged a federal lawsuit seeking exemption from Sec. 5 of the Voting Rights Act and in the alternative a ruling that congressional reauthorization of the voting rights law was unconstitutional. A federal court ruled that the Texas utility was not exempt from the voting rights act.

Writing for the majority, Chief Justice John Roberts said the Court would only address the Texas utility's statutory challenge, not its constitutional challenge. The majority concluded that the lower federal court erred in not finding that the Texas utility district was eligible to seek an exemption from the Voting Rights Act, holding that "all political subdivisions ... are eligible to file a bailout suit." Justice Clarence Thomas filed a dissent arguing that the Court should have found Sec. 5 of the Voting Rights Act unconstitutional. "The violence, intimidation and subterfuge that led Congress to pass Section 5 and this court to uphold it no longer remains," he wrote.

The justices also issued decisions in two other cases today.

In Forest Grove School District v. T.A., the Court ruled 6-3 that parents of special education students could receive public reimbursement for costs of sending their children to private schools. Writing for the majority, Justice John Paul Stevens concluded that the Individuals with Disabilities Education Act requires public school districts to pay for private school special education courses if the public school doesn't have adequate services. "We conclude that IDEA authorizes reimbursement for the cost of special education services when a school district fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special education or related services through the public school," Stevens wrote. Justice David Souter filed a dissent joined by Justices Antonin Scalia and Clarence Thomas. "Given the burden of private school placement, it makes good sense to require parents to try to devise a satisfactory alternative within the public schools," Souter wrote.

Voting 6-3 in Coeur Alaska v. Southeast Alaska Conservation, the high court upheld federal government approval to dump waste from an Alaskan gold mine into a nearby lake. Environmental groups sued to halt the dumping, and a federal appeals court sided with them, blocking the federal government permit. Today's high court ruling overturns the federal appeals court's decision.

The justices also agreed to add three cases to its next term, including ones involving the scope of Miranda rights, the constitutionality of a federal law on long-term imprisonment of sexual offenders and consideration of lawsuits over misspent federal funds.

The Court also refused to hear Wilson v. Libby involving a lawsuit against former Vice President Cheney and other administration officials who were involved in revealing the identity of a CIA agent.

On May 26, 2009, President Obama nominated Judge Sonia Sotomayor to replace Justice David Souter on the United States Supreme Court. Judge Sotomayor is highly qualified for the position, having graduated summa cum laude from Princeton and served as an editor of the Yale Law Journal. She will also, when confirmed by the Senate, be the only sitting Justice with prior experience as a trial court judge and the only Justice with experience as an assistant district attorney.

The norm of elevating federal appellate court judges to the high court is a relatively recent phenomenon. Promotions were rare in the nineteenth century: only six of the fifty-seven Justices appointed before 1900 had served on the lower federal courts. At that period of time, the lower federal courts were relatively weak and presidents and senators may not have thought of those courts as a good source for Supreme Court nominees. Today, every member of the current Court came directly from a federal appeals court, making that the first time that every justice shares that prior career experience. It has been nearly two decades since anyone who has not served as a federal appellate judge has been confirmed to sit on the court.

Chief Justice John Roberts has said that the current justices' limited trial court experience was "an unfortunate circumstance" and "a flaw." A New York Times article detailed former Chief Justice William H. Rehnquist's attempt to remedy the situation by appointing himself to the trial bench in Virginia during a Supreme Court recess. "He heard a case and issued the opinion," Chief Justice Roberts recalled, "and was promptly reversed by the Fourth Circuit." In the article, Roberts indicated that he had no desire to appoint himself to the trial bench.

A law review article on what influence prior judicial experience has on a justice's decisions found that experience as an appellate court judge made a justice more inclined toward agreement because appellate judges must carry a majority, whereas trial judges need not. Many of the problems and issues facing the country will require resolve and determination. Research shows that Sotomayor's stint as a trial court judge will help her with any tough stands she needs to take.

Senator Dianne Feinstein, an influential member of the Senate judiciary committee, has said that "trial court experience is a positive experience for somebody going up to the higher court because they then know what the law really can do or not do for people."

Sotomayor's years as an Assistant District Attorney for the Manhattan District Attorney's Office will also serve her well when criminal law cases come before the Supreme Court. Judge Sotomayor will become the only sitting justice with experience as an Assistant District Attorney when she takes the bench. This experience will prove invaluable because ADA's prosecute the kind of street level crimes that are not handled by federal prosecutors. This "street savvy" will provide the Court with a unique perspective on the issues that state police and investigators face on an everyday basis. The complexities of jury selection and state court practice would be best understood by a justice who has spent a significant amount of time practicing that area of law. Unfortunately, Thurgood Marshall (a federal appellate judge when he was nominated by President Johnson in 1966) was the last justice on the Court who had personally defended a criminal defendant at trial in a capital case.

It is a shame that the deliberations of the current Court lack the perspective of lawyers who understand the challenges that face state district attorneys and public defenders, who must present evidence in some of the toughest and most complex criminal trials in our system. State prosecutors are only able to spend a fraction of the time and resources on cases that federal prosecutors expend.

Sotomayor is set to join Justice Ruth Bader Ginsburg as one of only two women on the Court, and only the third in history. Sotomayor's gender is even more relevant given the fact that many branches of the legal profession have yet to fully integrate women into their ranks. Only 25 percent of judges on the federal circuits are women. Furthermore, there has only been one woman to sit on the Eighth Circuit Court of Appeals, which covers seven mid-western states from Arkansas to Minnesota. Id.

With the next term of the Supreme Court sets to start this fall, it is critical that the Senate confirm Sotomayor as quickly as possible. Also, Justice Ginsburg's bout with pancreatic cancer, Justice John Paul Stevens' age, and the age of four other justices, makes it highly likely that another vacancy will open during Obama's first term. Sotomayor will make an excellent addition given the unique perspective her personal and professional background will bring to the Court.

At the 2009 ACS National Convention, current and former executive branch officials discussed the latest issues of the day, including the priorities for the current administration. Among the panelists were Chief of Staff to the Vice President Ron Klain, the founder of the Center for American Progress John Podesta, and Staff Secretary to the President Lisa Brown, the former executive director of ACS. Questions from the audience ranged from national security law to LGBT issues. In his final statement, Klain also discussed ACS's unique role in law and policy fields.

For full video of the panel. go here.

In a stirring speech before a standing room only crowd at the opening session of the 2009 ACS National Convention, U.S. Sen. Sheldon Whitehouse provided a strong rebuttal to some of the opposition to the confirmation of Supreme Court nominee Judge Sonia Sotomayor.

Taking on the critics who questioned the relevance of Judge Sotomayor's background, Whitehouse quoted Justice Oliver Wendell Holmes' famous aphorism that, "The Life of the law has not been logic: it has been experience ...."

"No matter whether one agrees with the results courts reach, we all should recognize the wide discretion properly left to judges in interpreting the law and applying it to the facts of the case," Whitehouse said.

"Constitutional law," Whitehouse continued, "often turns on the judgment of courts, as the relevant doctrines require the balancing of competing crucial interests to deduce the important objects. Separation of powers cases, for example, require courts to evaluate the competing interests and prerogatives of the branches of government. Due Process cases require a weighing of governmental and private interests, since Due Process, as the Supreme Court explained in Mathews v. Eldridge, ‘is flexible and calls for such procedural protections as the particular situation demands.'"

Whitehouse stated that Sotomayor's life experiences would prove an invaluable asset to her ability to be an outstanding Supreme Court justice.

"It is harsh, narrow-minded, and ahistoric to contend that a rich life experience and natural empathy" as "at odds with the wise exercise of judicial discretion that is the longstanding tradition underlying the American system of law," he said. "Broad and diverse life experiences can make for better judgment and truer justice, and we should celebrate a nominee who would bring these qualities to the bench."

Whitehouse questioned the sincerity of the opposition's arguments that have targeted these experiences, as well as some comments regarding her background, education and upbringing.

"Indeed, is Judge Sotomayor's life experience as a wise Latina woman, or President Obama's concern for judicial empathy, really the issue?" he said. "Or does that stated concern reveal more about the critics than about the judge and the President? Does it not perhaps reveal impatience with any worldview that has not been groomed in corporate boardrooms, scrubbed by the Federalist Society, cosseted by privilege and exclusion, and comforted by the status quo?

"Our world, I think, is bigger than that, and our Constitution must be sized to fit that larger world," Whitehouse continued. "If Sonia Sotomayor represents a part of that larger world, even if she takes some points of view outside their comfort zone, that may be the very best argument for her nomination."

Whitehouse closed by noting that his "consideration of her nomination will ultimately turn upon her record and the answers she gives at her hearing."

Sen. Amy Klobuchar, also a member of the Judiciary Committee, this morning addressed a packed house at the Convention, further making the case for Judge Sotomayor, noting that she has "seventeen years of reasoned decisions," and bring more judicial experience to the High Court than any justice in 100 years.

Video of Sen. Whitehouse's speech is available here and the text is here.

The Great Decision

Jefferson, Adams, Marshall, and the Battle for the Supreme Court

By Cliff Sloan, partner at Skadden Arps, Slate, Meagher & Flom LLP, is a former Supreme Court clerk and former publisher of Slate Magazine; and David McKean, a top-level Senate aide and a veteran political strategist.

[Available Here]

One of the joys of working on The Great Decision, our new book on the Marbury v. Madison decision, was immersion in the engaging personality of John Marshall. Marshall was convivial and exuberant. He loved a good drink, and he loved a good time. Most notably, Marshall's affable nature played an enormous role as he lifted the Supreme Court to an important role in our constitutional system.

Accordingly, we have to register a note of respectful disagreement with Professor Noah Feldman's recent New York Times op-ed piece. The thrust of Feldman's argument is that greatness in a Supreme Court Justice is unrelated to his (or her) temperament and personality. John Marshall, perhaps the greatest of all our Justices, stands as a stark (and entertaining) refutation of that thesis.

Marshall's friendly disposition and reassuring personality were widely noted. In a popular essay published in 1803 (the year that Marbury v. Madison was decided), William Wirt reported that Marshall always seemed to "have an expression of great good humor and hilarity," with "an irradiating spirit" in his eyes. "His laugh was too hearty for an intriguer," recalled Justice Joseph Story. Marshall was an enthusiastic member of the Quoits Club, a barbecue club in Richmond that featured rowdy rounds of quoits (a popular game of the era), meat and liquor. Marshall cheerfully enforced the club's rule that anybody who talked about politics or business was fined a case of champagne.

Perhaps the only person who disliked Marshall was Thomas Jefferson. Marshall and Jefferson were cousins - and they hated each other. The reasons for their mutual contempt were many and varied - ancient family grievances, perceived personal slights, political differences. But even Jefferson's contempt for Marshall was laced with recognition of Marshall's pleasing personality. Jefferson derided Marshall's "lax and lounging manners" in a letter to a contemporary. Jefferson seemed to think that others were duped by Marshall's evident good humor.

Marshall used his personality to full effect as, plank by plank, he constructed the Supreme Court. In one of his many efforts to make the court a cohesive body, he convinced the Justices to stay together in the same inn when they were in Washington for Supreme Court sittings. They ate and drank together every night. In fact, Marshall presided over a nightly ritual with his colleagues. Marshall announced a rule that the Justices could have their Madeira only if it was raining. Every night, Marshall would have a Justice go to the window and report on the weather. If the Justice at the window reported that the weather was clear, Marshall would proclaim that the court's jurisdiction was so vast, it must be raining some place - and so the Madeira could be uncorked.

Bolstered by his winning personality and friendly relationships, Marshall set out to mold the court. He persuaded the Justices to wear black robes - a uniform symbol of simple fidelity to the law - rather than the range of garments that the Justices had favored in the past. He led the Justices to abandon their practice of issuing individual, seriatim opinion. Instead, they would join opinions of the court. Marshall frequently forged unanimity (usually in opinions that he authored). As a result of these actions, fueled at least in part by his bon homie, opinions like Marbury v. Madison emerged as authoritative decisions of the court, rather than as a chaotic and undifferentiated babel of individual perspectives.

We may like to think that personality plays no role in the greatness of a Supreme Court Justice. The life and record of John Marshall point to an opposite conclusion. Let's lift a glass of Madeira to that example.

The Supreme Court has overturned a federal appeals court decision granting a convict access to DNA evidence in an attempt to prove his innocence. Writing for a 5-4 majority, Chief Justice John Roberts said the Alaska man, convicted of a violent crime, did not have a constitutional right to obtain DNA evidence more than a decade after his conviction. Roberts said that state legislatures are creating laws allowing greater access to DNA evidence and that the high court would not disturb that approach. "DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty," Roberts wrote in District Attorney's Office v. Osborne. "The Federal Government and the States have recognized this, and have developed special approaches to ensure that this evidentiary tool can be effectively incorporated into establishing criminal procedure - usually but not always through legislation." The Associated Press reported that, "The decision may have limited impact because the federal government and 47 states already have laws that allow convicts some access to genetic evidence."

In another 5-4 decision, the high court ruled against a plaintiff's age employment discrimination claim. The majority in Gross v. FBL Financial Services concluded that a worker has to prove that age was the key reason for discriminatory action by the employer. Scotusblog's Lyle Denniston provides analysis of those cases and other actions taken today by the high court here. 

On Feb. 17, 2009, President Obama signed the American Recovery and Reinvestment Act ("ARRA"), which allocated over $100 billion to education. Over $25 billion were marked for low-income and special education students, $13 billion for Title I, Part A of the Elementary and Secondary Education Act of 1965 ("Title 1") funding for economically disadvantaged students and $12.2 billion for programs under the Individuals with Disabilities Education Act ("IDEA"). The doubling of current federal funding to local education agencies suggests unprecedented opportunities for sweeping reform. Unfortunately, the ARRA Title I and IDEA funding risks being, and will most likely be, used only to maintain or moderately expand currently insufficient Title I and special education programming.

Undoubtedly, the federal stimulus aid will provide needed relief to state and local education agencies struggling to avoid large budget cuts. In most school districts, the federal aid will be mainly used to compensate for previous deficits and avoid future cuts. Indeed, 21 states have estimated that, with the additional AARA funding, there will actually be a decrease in overall spending on primary education in 2010, and the greater spending in some of the other states correlates to significant cuts over the previous two years. While ARRA Title I and IDEA aid will play a particularly important role, once calculations are finalized on the specific distribution to individual states, the impact will certainly not double the resources for disadvantaged students.

As the ARRA ties its funding with pre-existing regulations under Title I and IDEA, the challenges to significant progress in narrowing the achievement gaps for low-income and special education students are centered in two areas regarding the distribution and use of federal funds: 1) the poorly defined and scrutinized regulations concerning targeting of Title I eligible students and 2) the Maintenance of Effort ("MOE") and Supplement Not Supplant ("SNS") provisions of Title I and IDEA.

Under Title I, local education agencies may choose among three approaches in their use of Title I federal funds-targeted, school-wide, and district-wide; the 1988 and 2001 reauthorizations enabled schools greater flexibility in their decisions. A targeted-assistance initiative directs services to children identified as "failing, or most at risk of failing, to meet the state's challenging student academic standards." For school-wide programs, Title I funds are consolidated with other money for programming that would impact a school. Title I funding essentially becomes integrated into the regular educational funding for the school, with very flexible general requirements that the programs address the needs of low-income students. Finally, there are district-wide strategies, which are even broader in scope and more general in how they support disadvantaged students. In theory, but almost never in practice, Title I schools must be in agreement with school district decisions when Title I dollars are taken to support district wide initiatives. With proper implementation, all three approaches can create reform, but Title I funds used school-wide or district-wise can be, and are often, used to pay for existing mediocre or barely-related programs at the expense of the students whose educational benefit should have been the main priority.

A second threat is the MOE and SNS provisions of Title I and IDEA. Firstly, ARRA has authorized that, a state or local education agency may count their State Fiscal Stabilization Fund, the one-time $53.6 billion appropriation for discretionary educational aid, money as state funds for the purposes of meeting MOE and SNS requirements. Furthermore, under Title I, states with budget shortfalls, as many states are currently facing, may be able to establish compliance, even if they use Title I, Part A funds to pay for costs previously paid for with state/local funds.

The possibility of states simply substituting federal funds for state expenditures is arguably greater under IDEA. The 2004 reauthorization of IDEA, which the Department of Education has confirmed will apply to ARRA funds, offers a dangerous exception to MOE and SNS demands: if a local education agency's fiscal year allocation exceeds its allocation from the previous year (which it will for most, if not all, local education agencies receiving ARRA funds), the local education agency can reduce the level of state/local expenditures by 50 percent of the increase. The Secretary of Education can also grant a waiver of IDEA SNS compliance to a state, if the state can show that all children with disabilities are receiving free appropriate public education. As Professor Andrew Reschovsky's recent commentary on how the stimulus bill will affect public education funding in Wisconsin exemplifies, despite the over 12 billion dollars for special education, expenditure on special education will be unchanged in many states between now and 2011. Finally, it should be noted that a motivation for these exceptions may be the failure of Congress to fulfill IDEA's intended federal funding level of 40 percent of special education expenditure; for 2009, ARRA would bring the percentage from its current 17.2 percent to 34.2 percent.

That most school districts will receive no additional general state educational aid, if not decreases in such funds, will make it particularly tempting for local education agencies to utilize the MOE and SNS exemptions to direct money intended for disadvantaged students to broader purposes. It is the responsibility of Education Secretary Arne Duncan and the Department of Education to ensure that ARRA Title I and IDEA federal funds make a true impact in the equalizing of education for disadvantaged students. The enormous power that Duncan wields, controlling over $100 billion, places him in a critical position in political history. Our Secretary of Education must embrace this power, and the concomitant responsibility, to challenge both states' use of federal funds and their complacency, if he and the Obama administration are truly committed to the disadvantaged students most in need of free appropriate public education and, just as importantly, a courageous defender of their rights.

Sen. Russ Feingold, in questioning Attorney General Eric Holder's support of warrantless domestic spying, noted that at last year's ACS National Convention, Holder said, "I never thought I would see the day when a president would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens." Atlantic blogger Marc Ambiner, in a post on Feingold's questioning of Holder at a Senate Judiciary Committee hearing today, notes that, "Holder now believes that the NSA's programs are legal because Congress says they're legal." The full exchange is available from Ambiner here. A Webcast of the hearing is available here. Video of Holder's ACS speech is here. 

The National Football League has announced an expansion of the "Rooney Rule" on minority hiring. NFL Commissioner Roger Goodell said the rule, which requires NFL teams with head-coaching vacancies to interview one or more minority candidates, would be expanded to cover hiring of front-office personnel.

The Washington Post reported that the expanded rule would require teams seeking to fill front office positions to interview at least one minority candidate. In a statement, Goodell said, "The discussion at the league meeting identified the strong reason for taking this step, which in large part simply confirms a recommended practice that clubs have voluntarily embraced. The recommendation also recognizes that this process has worked well in the context of head coaches, and that clubs have deservedly received considerable positive recognition for their efforts in this respect."

An NFL committee, headed by Steelers President Dan Rooney (left with Steelers head coach, Mike Tomlin), proposed the adoption of the rule on hiring head coaches in 2002 after the committee concluded that the league's hiring practices were discriminatory.

In December, ACS distributed an Issue Brief on the impact of the Rooney Rule.

Douglas C. Proxmire, a partner at Patton Boggs LLP, maintains in "Coaching Diversity: The Rooney Rule, Its Application, and Ideas for Expansion," that the rule produced some positive results, but that more work was needed to diversify hiring in the NFL. In the Issue Brief, Proxmire noted, "The limited scope of the Rooney Rule does not cover the hiring of front-office personnel or other coaching staff positions, such as coordinators. While there has been talk about expanding the Rooney Rule to cover additional vacancies, the NFL has yet to take that step."