September 2010

  • September 30, 2010
    Guest Post

    By Glenn Sugameli, Staff Attorney, Defenders of Wildlife's Judging the Environment. Mr. Sugameli founded in 2001 and still heads the environmental community's Judging the Environment project and website on federal judicial nominations and related issues.
    In my December 23, 2008 ACSblog post, I mentioned that there were 44 current federal court vacancies and described how "One of President Obama's most enduring legacies will be the nominees he selects for lifetime seats on trial courts, the circuit courts of appeal that have the final say in 99 percent of cases, and the Supreme Court."

    My prediction has certainly come true for the Supreme Court, with President Obama's successful nominations of Sonia Sotomayor and Elena Kagan.

    Incredibly, however, federal judicial vacancies have soared to over 100, and those that the U.S. Courts has declared to be "judicial emergencies" have multiplied from 20 to 48.

    Unfortunately, as senators left town until November 15, continuing obstruction by unnamed Senate Republicans ensured that the judicial vacancy crisis will worsen. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) explained:

    Republicans have allowed the Senate to consider and confirm only 41 of President Obama's circuit and district court nominations over the last two years. In stark contrast, by this date in President Bush's second year in office, the Senate with a Democratic majority had confirmed 78 of his Federal circuit and district court nominations. That number reached 100 by the end of 2002, all considered and confirmed during the 17 months I chaired the Senate Judiciary Committee.

    Indeed, the expressed desire to fill current vacancies has extended across the Senate aisle. Sen. Lisa Murkowski (R-Alaska) recently said Senate rules should be changed to allow judicial nominees to more quickly be moved to a vote, that the legislative branch is to a degree holding the "judiciary hostage," and that senators should vote against nominees they don't like, not hold up the process. The Senate finally approved Jane Stranch's long-delayed Sixth Circuit U.S. Court of Appeals nomination after her home-state Senator Lamar Alexander (R-Tenn.) went to the Floor with Sen. Leahy to request a vote.

  • September 30, 2010
    Justice Brennan: Liberal Champion
    Seth Stern and Stephen Wermiel

    By Seth Stern and Stephen Wermiel, coauthors of Justice Brennan: Liberal Champion, which will be published this week. Stern is a reporter for Congressional Quarterly and a Harvard Law School graduate. Wermiel teaches constitutional law at American University Washington College of Law.

    Twenty five years ago this month, Justice William J. Brennan Jr. engaged Attorney General Edwin Meese in a then unprecedented public debate on constitutional interpretation.

    Brennan, who at 79 remained the Supreme Court's most vigorous proponent of a living constitution, never actually shared a stage with Meese, President Reagan's long time adviser and leading advocate of originalism. If they had, the ideal venue for this jurisprudential equivalent of the 1975 match, pitting Muhammad Ali against Joe Frazier and nicknamed the "Thrilla in Manila," might have been a boxing ring.

    Meese had lobbed the first volley in a July, 1985 speech to the American Bar Association's annual convention in Washington, D.C. titled "Jurisprudence of Original Intention." He generated headlines by criticizing the Court for "a drift back toward the radical egalitarianism and expansive civil libertarianism of the Warren Court."

    Meese later admitted he purposely chose the prominent venue - and provocative tone - to raise originalism's profile. The idea that the Constitution should be interpreted according to the original understanding of the founding fathers had gained currency among conservative legal scholars in the previous decade but not yet seeped into the public consciousness.

  • September 30, 2010

    The Senate recessed Thursday morning without confirming any additional nominees to the federal bench, postponing a scheduled Senate Judiciary Committee hearing at which they were to vote on ten judges.

    Seventeen of the pending 23 nominations were reported by the Judiciary Committee unanimously, a press release from Sen. Patrick Leahy's office reports.

    "Last year the Senate confirmed only 12 Federal circuit and district court judges, the lowest total in 50 years," Leahy said. "This year we have yet to confirm 30 Federal circuit and district judges. We are not even keeping up with retirements and attrition. As a result, judicial vacancies are, again, over 100 and, again, more than 10 percent. This trend should alarm the American people who expect justice from the Federal courts."

    Meanwhile, President Obama added four names to the list of nominees, including his first nomination to the U.S. Court of Appeals for the D.C. Circuit - Caitlin Halligan.

    Halligan, who was a panelist at the 2005 ACS National Convention, is general counsel to the Manhattan District Attorney's Office and a lecturer at Columbia Law School. She was previously solicitor general of New York State, and headed the appellate practice at Weil, Gotshal & Manges, The Blog of Legal Times reports.

    Obama also nominated international trade lawyer Jimmie V. Reyna to the United States Court of Appeals for the Federal Circuit. Reyna is a partner in the Washington, D.C. office of Williams Mullen.

    The President's two newest district court nominees are Mae A. D'Agostino, who was selected for a seat in the Northern District of New York, and Judge R. Brooke Jackson, who was nominated to the District of Colorado.

    Another seat will become vacant at the end of the year, when U.S. District Judge Vaughn Walker, who struck down Proposition 8 in California, has announced he will retire, the San Francisco Chronicle reports.

    There are currently 104 vacancies on the federal courts, 48 of which are considered judicial emergencies. Visit to learn more about the judicial vacancies crisis and track developments.

  • September 29, 2010

    A lawsuit filed against the State of New Hampshire alleges state budget cuts slashing millions of dollars from the court system violate the New Hampshire Constitution's guarantee of a prompt civil jury trial.

     Former Congressman and state Supreme Court Justice Chuck Douglas and eight other lawyers filed the suit on behalf of four plaintiffs, who claim that the state has canceled all civil schedules in several courts, and that "the denial of civil jury trials for almost a year on top of normal scheduling is unconstitutional," The National Law Journal reports. The petition also laments the impact of judicial vacancies, reduced hours and furlough days on the operation of the courts.

    A letter from New Hampshire Supreme Court Chief Justice John Broderick Jr. posted on the court's website in June says the court system "has been hit especially hard." "[T]o families in crisis, prosecutors trying to protect communities and civil litigants trying to protect their rights and property, the budget resources we have now will not be enough," Justice Broderick wrote in the letter. "Please know that we are doing all we can to keep the system from failing further."

    Douglas, who is asking that the court restore $4 million in funding, and adequately fund the system going forward, told the Eagle-Tribune he's never seen the system function this poorly, "where wholesale parts of the dockets are just canceled indefinitely and there's no light at the end of the tunnel."

    Douglas said he is aware of only one similar case: In 1971, The Philadelphia Supreme Court upheld an order that the state pay $2.4 million to adequately fund the city's court system.

  • September 29, 2010
    Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, reiterated his support of repealing the military's "Don't Ask, Don't Tell," policy, The Huffington Post's Sam Stein reports.

    Earlier this year, Mullen told the Senate Armed Services Committee that the policy, which bars lesbians and gay men from serving openly, should be done away with. "No matter how I look a the issue, I cannot escape being troubled by the fact that we have in place a policy which forces young men and women to lie about who they are in order to defend their fellow citizens."

    As Stein notes, a measure to repeal the policy was blocked last week by Senate Republicans. At an event sponsored by the Christian Science Monitor Mullen, according to Stein, expressed disappointment over the Senate's action and restated his support for ending the policy.

    "I am very clear where I was on February 2 and where I am today," Mullen said. "This is my personal view. I struggled greatly with the fact that we asked people in an institution that values integrity, which is who we are, that we would ask individuals to show up every day and basically lie. So my position on that hasn't changed at all."

    Mullen, however, said he would prefer that Congress take the lead in dumping the policy instead of the military revising it.

    Groups pushing for the repeal of the "Don't Ask, Don't Tell," are still urging lawmakers to vote on repealing the policy before year's end.