August 2010

  • August 10, 2010

    Justice Ruth Bader Ginsburg called for greater Senate cooperation in confirming judicial nominees during the American Bar Association's annual meeting, the San Francisco Chronicle reports.

    "With ABA encouragement, may the U.S. Senate someday return to the collegial, bipartisan spirit that Justice Breyer and I had the good fortune to experience," Ginsburg said, in accepting the ABA's highest honor, the ABA Medal.

    Ginsburg recalled her own confirmation processes to both the U.S. Court of Appeals for the District of Columbia and the Supreme Court. She said her confirmation initially looked uncertain because she had worked as a lawyer for the American Civil Liberties Union, but that once the ABA certified her with its highest rating, "well-qualified," she was "invulnerable to attack as unfit for appointment," the Chronicle reports.

    In 1993, she was confirmed to the high court by a Senate vote of 96-3, in contrast to the vote to confirm Kagan 63-37. Both Sonia Sotomayor and Elena Kagan also received top ABA ratings, but they were confirmed largely along party lines, the Chronicle reports.

    In the lower federal courts, there are now 100 vacancies out of 867 seats on the federal bench.

    "We're at a point of unprecedented partisanship and bitter feuding between the two parties over judicial nominees at a level that has never happened before. And the impact is that you have nominees who are languishing for months and some of them for over a year," ACS Executive Director Caroline Fredrickson told NPR in a report on Senate obstruction of judicial nominations.

    "If the Senate continues to move at this "glacial pace," a system that is "already overburdened" will come to a "grinding halt," Fredrickson wrote in a column for The Huffington Post earlier this month.

    Most recently, the Senate blocked the votes of law professor Goodwin Liu and San Francisco magistrate Edward Chen, both of whom are highly rated by the ABA, the Chronicle reports.

    Visit to track nominations and get more information about the process.


  • August 9, 2010

    The students at ACS's University of Nebraska College of Law chapter are adding to the stock of ACS podcasts available for those looking to "jog to the soothing cadence of Harvard Law professor Lawrence Lessig."

    The members of the student chapter have launched a law-interviews podcast series, and ACS student hosts have already recorded interviews with an impressive set that includes Lessig, Eugene Volokh, Jen Moreno and Josh Blackman.

    Starting this fall, the students will interview guests twice a month. Would-be guests, or fellow law students who want to get involved, can e-mail the chapter at [email protected].

    The national headquarters' series of podcasts and videos are available on our website here or via iTunes here.

  • August 9, 2010
    U.S. attorney positions in Texas remain unfilled, writes Todd J. Gillman of The Dallas Morning News (DMN). The DMN notes that the "Senate has confirmed Obama-picked prosecutors for 57 or 93 federal districts nationwide. Nineteen more nominations are pending. A dozen districts have no nominee, including the four in Texas."

    The DMN reports:

    Tussles between Texas' senators, both Republican, and the state's Democrats in the U.S. House certainly caused some of the delay, but both sides long ago submitted lists of preferred nominees that largely overlap. While most states have gotten Obama nominees, Texas is still waiting.


    With Democrats expected to lose Senate seats in November, winning confirmation of nominees won't get any easier. And the longer Obama waits, the harder it gets to woo top talent because of the grueling process, said Paul Coggins, the U.S. attorney in Dallas under [President] Clinton.

    Coggins added, "At some point the White House just has to step in and say, ‘Look I've heard from the senators, and I've heard from the congressman, and here's who I'm nominating.' You'll probably hack off one side or the other but that certainly would be welcome among most of us Texans."

  • August 9, 2010

    On the 45th anniversary of the Voting Rights Act of 1965, President Barack Obama called the Act "an affirmation that although the arc of the moral universe may be long, it bends toward justice."

    The chance for blacks to vote for Obama was itself was a major victory for blacks and the Voting Rights Act, writes Cord Jefferson for The Root, but "sadly, the good news ended there."

    Criminal disenfranchisement remains a major barrier to voting, Jefferson writes, citing Human Rights Watch statistics that nearly a third of all black men in Alabama and Florida are permanently disenfranchised by past convictions.

    "The issue of felon disenfranchisement turns the spotlight on some uncomfortable facts about who goes to prison in the United States, a country with the highest incarceration rate in the world," ACS board member Linda Greenhouse wrote in a column for The New York Times last month.

    In her column, Greenhouse, a Pulitzer Prize-winning journalist, highlighted an opportunity for the Obama administration to take leadership on the issue of felon disenfranchisement. The Supreme Court has asked the Office of the Solicitor General to take a position on whether laws that disenfranchise those in prison or on parole are a violation of the Section 2 of the Voting Rights Act.

    States have imposed other requirements that "restrain the right to vote," including a photo ID requirement in Indiana, and a system that relies on outdated information to verify citizenship in Georgia, writes CNN contributor Donna Brazile. Adds Brazile:

    Other states have enacted similar laws or have simply refused to comply with federal demands, perhaps betting that they are unlikely to face reprimand from an overburdened federal government. This year, an election administrator in Texas -- a state employee -- publicly mocked the Voting Rights Act's language minority protections, telling an audience that poll workers should simply speak in slow, broken English to Spanish-speaking voters. The administrator was fired.

  • August 9, 2010
    Guest Post

    Editor's Note: The following essay was originally published as a "Perspective," in the June 9 edition of the Los Angeles Daily Journal and is reprinted with the permission of Daily Journal Corp. (2010). Following the post is an addendum for ACSblog, in which Professor Bryan H. Wildenthal offers additional thoughts on the recent Republican proposals to amend, or consider amending, the 14th Amendment Citizenship Clause.

    By Bryan H. Wildenthal, Professor of Law, Thomas Jefferson School of Law in San Diego, Calif. Professor Wildenthal has published several major articles on the history and meaning of the 14th Amendment, one of which was cited five times by the U.S. Supreme Court in McDonald v. Chicago, 130 S.Ct. 3020 (2010); id. at 3033 n. 10 (Opinion of the Court by Alito, J.) (two citations); id at 3072 n. 10, 3073 n.12, and 3079 (Thomas, J., concurring in part and concurring in judgment).

    Should children born on American soil obtain "birthright" U.S. citizenship, even if their parents are not legal immigrants? Rep. Duncan D. Hunter, (R-CA), and "Tea Party" Republican Rand Paul, the Kentucky U.S. Senate candidate, are among many who say no. Hunter is co-sponsor of a bill seeking to strip citizenship from all future children born to non-citizens (even those legally residing here on student or work visas), unless at least one parent has legal permanent residence or serves in the U.S. armed forces. The bill is perversely numbered H.R. 1868, for the year the 14th Amendment to our Constitution was ratified. That great amendment, which built upon our Bill of Rights, defines citizenship and guarantees the basic rights of both citizens and all "persons" (including non-citizens). It declares, in part: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

    So-called "conservative" politicians, and especially "Tea Party" activists, claim to respect the "original meaning" of our Constitution, and criticize liberals and progressives for allegedly failing to do so. But it is right-wing radicals like Paul and Hunter who should pay closer attention to the text and history of the Constitution, which stand flatly opposed to their views. H.R. 1868 would betray and violate the core meaning of the 14th Amendment.

    This issue was settled more than a century ago. The Supreme Court, in U.S. v. Wong Kim Ark (1898), rejected the idea that the status of parents (in that case, Chinese immigrants ineligible for U.S. citizenship and allegedly "subject" to a "foreign power") barred citizenship for their children born under American jurisdiction. The 19th century cases, like the original debates over the 14th Amendment in 1866-1868, make clear that only a handful of narrow exceptions apply to the concept of "jurisdiction" -- mainly children born to foreigners with diplomatic immunity or within America's Indian Nations as they existed at that time. (Tribal member Native Americans, while generally subject to federal jurisdiction today, were mostly not considered U.S. citizens in the 19th century; they were fully naturalized only in 1924.)

    No one can seriously dispute that an illegal immigrant is "subject to [U.S.] jurisdiction." How else would this country have jurisdiction to arrest and deport such immigrants, or prosecute them for immigration or other crimes they may commit, as the federal and state governments routinely do?