August 2010

  • August 6, 2010
    Celebrating the historic confirmation of Elena Kagan to the Supreme Court, President Obama noted in comments at the White House today that Kagan is a trailblazing legal figure who at various occasions has garnered standing ovations from audiences of both ACS and the Federalist Society. President Obama said, "The bipartisan support she received in yesterday's vote is yet another example of the high esteem in which she is held by folks across the political spectrum. There aren't many law school deans who receive standing ovations from both the Federalist Society and the American Constitution Society."

    The president also noted, "For nearly two centuries there was not a single woman on the Supreme Court. When Elena was a clerk, there was just one. But when she takes her seat on that bench for the first time in history there will be three women serving on our nation's highest court."

    Video of President Obama's remarks is available here. A transcript of the remarks is here.

    Reaction to Kagan's confirmation:

    Sen. Dianne Feinstein (D-Calif.) told The Washington Post, "Her great strength, I believe, is that of a conciliator, a reconciler, being able to bring people together, and we've had a whole raft of 5-4 decisions."

    Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) said, "Her qualifications, intelligence, temperament and judgment will make her a worthy successor to Justice John Paul Stevens."

    In an analysis for The Wall Street Journal, Jess Bravin traces the similarities and differences in the careers of Kagan and Chief Justice John Roberts, now the two youngest members of the court, who "could wrestle over competing visions of American law for decades to come." They followed similar paths - "one groomed by the Democratic legal establishment, the other by the Republican" - they both worked in the administration and in prestigious clerkships, and their personalities overlap, each "exuding confidence without arrogance" and attracting supporters with opposite ideologies.

    Sen. Amy Klobuchar (D-Minn.), quoted in Bravin's analysis, said, "She's smart, she's experienced as a manager, a consensus builder, as someone who's been on the front line. ... She will be an intellectual counterweight to Chief Justice Roberts."

    Also, in the WSJ article, Erwin Chemerinsky said he doesn't believe Kagan is going to persuade Justice Kennedy, the swing vote, "where Stevens and [retired Justice David] Souter couldn't." "Ultimately, it is still the Kennedy court."

    "She brings a keen intellect, considerable talent, and a commitment to core constitutional values," Alliance for Justice President Nan Aron said in a statement praising Kagan's confirmation. "We now call on the Senate to swiftly confirm all lower court nominees, many of whom have been languishing on the floor for months. It is time for the Senate to stop placing politics ahead of equal justice."

  • August 6, 2010
    Guest Post

    By Nkechi Taifa, Senior Policy Analyst at The Open Society Policy Center and the author of an ACS Issue Brief, "The 'Crack/Powder' Disparity: Can the International Race Convention Provide a Basis for Relief?"
    For nearly a quarter of a century the disparity between crack and powder cocaine sentencing has stood out as one of the most notorious illustrations of unfairness in the criminal justice system. Since 1986 low-level crack cocaine offenders selling sugar packet and candy-bar-weight quantities of crack cocaine have been punished far more severely than their counterparts who trafficked in large-scale quantities of powder cocaine. For example, one who possessed just 5 grams of crack cocaine received a mandatory felony sentence of at least five years without parole in federal prison, yet one selling 100 times that amount of powder cocaine -- 500 grams -- received the same five-year sentence. Far from being "tough on crime," this 100:1 quantity ratio of low level crack prosecutions amounted to what has been described as "junk food justice," primarily impacting African Americans at the bottom rung of the drug chain.

    As a result of bipartisan legislation passed by Congress and signed into law by President Obama on August 3, the five-year sentence for simple possession of crack cocaine has been eliminated. This represents the first time in 40 years that a federal mandatory minimum sentence has been repealed, making the Fair Sentencing Act (S. 1789) a historic legislative achievement. Although advocates fought long and hard for the complete elimination of disparate treatment in crack cocaine sentencing, the Act significantly lowered the 100:1 ratio for distribution of crack to 18:1. While not ideal, achieving this reduction with agreement across the political spectrum was extraordinary, particularly with mid-term elections looming. The new 18:1 ratio will bring relief to nearly 3,000 cases a year, reduce crack sentences by nearly 30 months and, according to the Congressional Budget Office, save the federal government $42 million dollars over a five year period.

    Rare bipartisan consensus in support of drug sentencing reform was the catalyst in the passage of the Fair Sentencing Act. Widespread agreement from not only civil rights and criminal justice groups that have historically worked on the issue, but also support from the White House and Justice Department, law enforcement and prosecutors, and political and religious conservatives, was influential. Partisan politics was tabled as Senators and Representatives from both sides of the aisle spoke to the critical need for reform. Rather than the political posturing of "tougher than thou" on crime, the overriding sentiment became "smarter on crime." A groundswell of bipartisan support culminated in "cracking" the disparity, and now it is critical that these same champions come together to support continued reform.

  • August 6, 2010
    Guest Post

    By Steven D. Schwinn, Associate Professor of Law, The John Marshall Law School. Professor Schwinn is also co-editor of the Constitutional Law Prof Blog.
    There's a lot to criticize in Federal District Court Judge Henry Hudson's ruling earlier this week allowing Virginia's case challenging the individual health insurance mandate to move forward. For example, the ruling gave credence to the recently enacted Virginia Health Care Freedom Act, the state's effort to nullify the federal mandate through legislation that purports to exempt Virginians. The Act was a thinly disguised attempt to legislate standing for the state-to give Virginia an interest in defending its own state laws. But Virginia has no real interest other than making a political statement. Its manufactured standing mocks Article III's case-and-controversy requirement and risks inspiring other states to fabricate standing simply by enacting legislation anytime a majority in a state legislature objects to a federal law.

    Then there's the ruling's apparent conflation of Congress's Commerce Clause authority and its taxing authority under the General Welfare Clause. The ruling runs uncomfortably close to saying that congressional authority to tax is cabined by its authority to regulate interstate commerce - a position flatly rejected by the Supreme Court since 1936. In fact the ruling says almost nothing about Congress's taxing power; instead, it falls back on the Commerce Clause, suggesting, with little analysis, that the mandate looks more like a "penalty" (enacted under the Commerce Clause) than a "tax" (enacted under the General Welfare Clause).

    These and other similar concerns with the ruling are troubling, but they come at only a preliminary stage of the litigation. The court will have another opportunity to consider the substance of the constitutional arguments, and not merely whether Virginia adequately pleaded its constitutional case. And as Judge Hudson wrote, this court will almost certainly not have the final say in the matter.

    Aside from these immediate and serious, but perhaps fleeting, doctrinal concerns, there is another problem with the ruling: The court embraced and legitimized Virginia's theory that the mandate amounts to "regulating non-action," and in so doing transformed a mere political argument into a budding constitutional doctrine.

  • August 6, 2010

    Elena Kagan was not the only judicial nominee the Senate confirmed yesterday. In one of its last acts before recessing for a month, the Senate also confirmed four nominees to federal judgeships, The Blog of the Legal Times reports.

    The confirmation of James Wynn Jr. to the Fourth Circuit, along with three others to district courts, comes a day after President Barack Obama met one-on-one with Senate Minority Leader Mitch McConnell (R-Ky.) to discuss judicial confirmations.

    In a statement before the meeting, White House Spokesman Robert Gibbs said the president is "rightly frustrated" at a pace of confirmations that is "unrivaled and unmatched in its slowness," USA Today reports.

    There are now 100 vacancies out of 867 seats on the federal bench. "Those vacancies are causing the federal courts to be overburdened, delaying justice," ACS Executive Director Caroline Fredrickson wrote in a column for The Huffington Post earlier this month. If the Senate continues to move at this "glacial pace," a system that is "already overburdened" will come to a "grinding halt," Fredrickson wrote.

  • August 6, 2010
    Missouri voters in a primary with Republican contests grabbing the majority of statewide attention approved a measure, called Proposition C, which asserts that the state will flaunt a major provision of the landmark health care reform law once it takes effect in 2014. The proposition supported in an election with low voter turnout says the federal government's mandate that individuals purchase health care insurance or pay a fine would not apply to folks in Missouri. AOL News's Andrea Stone wonders whether such a "populist backlash," will survive court scrutiny.

    Regardless of whether a so-called populist backlash exists, Simon Lazarus, public policy counsel for the National Senior Citizens Law Center (NSCLC) and author of an ACS Issue Brief on the constitutionality of the health care provision, told Stone the vote on Proposition C was likely to be quickly forgotten.

    A string of lawsuits are already lodged against the health care reform law. A a federal judge, earlier this week, allowed the one out of Virginia to proceed. The federal courts are likely to determine the constitutionality of the health care reform law before 2014.

    Lazarus said, "If federal courts decide it is unconstitutional, then laws like this one will be superfluous. It has no legal consequences. It's symbolic."

    Lazarus, noting that the vote occurred during a Republican-dominated election, added that the vote was akin to a "straw poll of Republicans."

    For more on the constitutionality of the health care reform law and the state lawsuits against it, watch an ACSblog interview with Lazarus. Also see a recent guest post from Lazarus and NSCLC Staff Attorney Sergio Munoz on the ruling by the federal judge in the Virginia lawsuit.