January 2011

  • January 5, 2011

    President Barack Obama has renominated all but one of the judicial nominees who had not received an up-or-down vote when the Senate adjourned in December, The Huffington Post reports.

    Among the 42 renominated are the four individuals who were explicitly excluded from confirmation discussions during the lame-duck session: former ACS Board Chair Goodwin Liu, an associate dean and law professor nominated to the 9th U.S. Circuit Court of Appeals, and district court nominees Edward Chen, Louis Butler, and John McConnell.

    U.S. District Court Judge Robert Chatigny of Connecticut was not renominated. Republicans opposed his nomination because of a controversial incident in which he warned a defense lawyer in a state capital case that his law license would be in peril if he did not do more to delay the execution of his client, The Blog of Legal Times reports. The man was later executed, but Chatigny said during his confirmation hearings that he should have handled the situation differently.

    The Senate adjourned in December without having voted on 19 of the 34 nominees that had been approved by the Senate Judiciary Committee. Another 24 nominees had not yet been approved by the Senate Judiciary Committee.

    There are now 98 vacancies on the federal courts subject to Senate confirmation, half of which have been deemed judicial emergencies. Visit JudicialNominations.org to see the full list of pending nominees and follow developments.

  • January 5, 2011
    The soon-to-be chairman of the House Oversight and Government Reform Committee, Rep. Darrell Issa, is helping stoke a popular right-wing sentiment that the Obama administration is wildly anti-business.

    The New York Times reports that last month, Issa (pictured) "dispatched letters to 150 companies" asking them which federal regulations they believe should be rewritten. The newspaper said Issa's action prompted predictable responses from the two major political parties, with Republicans bemoaning a heavy-handed government under the Obama administration and Democrats saying Republicans are tied to closely to powerful corporate interests.

    The nonprofit public interest group, Public Citizen blasted Issa's move saying, "Rather than providing a platform for presentation of a corporate wish list, Representative Issa should be subjecting corporate claims to the withering scrutiny he promises for the Obama administration. It's time we ended the Kabuki theater of corporate whining, and got on with the serious business of creating jobs and making America safer and cleaner."

    While the new House majority may, not surprisingly, be aligning itself with big businesses, some public interest groups are raising concerns that the conservative wing of the Supreme Court is increasingly supportive of corporate interests. Last year, the Constitutional Accountability Center (CAC) issued a report that the Roberts Court's five conservative justices tend to side with corporate interests.

  • January 5, 2011
    Guest Post

    Editor's Note: Elizabeth Wydra authored an ACS Issue Brief on the 14th Amendment's birthright citizenship clause and the efforts by some Tea Party groups and others to undermine the clause, which provides citizenship to babies born on American soil. Wydra is updating the Issue Brief, which will be released later this year. In light of the ongoing movement to curtail the citizenship clause, we are re-posting Wydra's blog post regarding her Issue Brief, "Birthright Citizenship: A Constitutional Guarantee."

    By Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center
    The opening sentence of the Fourteenth Amendment is both sweeping and clear: "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." As discussed in my recent ACS Issue Brief, the words and history of this constitutional text establish that it provides automatic citizenship-"birthright citizenship"-to anyone born in this country regardless of race, color or status of one's parents or ancestors.

    Despite the plain language of the Amendment and its powerful history, opponents of birthright citizenship continue to fight its meaning and purpose. Most of the efforts to narrow the meaning of birthright citizenship have been motivated by a desire to exclude from citizenship children born on U.S. soil to undocumented immigrants. Unfortunately, this anti-citizenship political movement shows no signs of slowing: in Congress, bills have been introduced each year for more than a decade to end automatic citizenship for persons born on U.S. soil to parents who are in the country illegally; in California, signatures are being gathered for a ballot proposition that would create a sub-class of U.S.-born citizens by issuing different birth certificates to children born in the United States to undocumented immigrant parents; and, in the 2008 presidential campaign, several Republican candidates expressed skepticism that the Constitution even guarantees birthright citizenship.

    The anti-citizenship arguments are debunked in detail in my Issue Brief. But the fatal flaws in these arguments are not the most compelling reasons for rejecting them in favor of the broad and clear definition of citizenship intended by our Reconstruction Framers. Rather, the text, history and principles behind the Citizenship Clause demonstrate that the drafters of the Fourteenth Amendment created an elegantly simple and intentionally fixed rule of birthright citizenship that was intended to serve as a long-overdue fulfillment of the promise of inalienable freedom and liberty in the Declaration of Independence. Providing for birthright citizenship regardless of race, color or previous condition of servitude righted the horrible wrong of Dred Scott v. Sandford, in which the Supreme Court held that persons of African descent born in the United States could not be citizens under the Constitution, and ensured that all native-born children, whether members of an unpopular minority or descendants of privileged ancestors, would have the inalienable right to citizenship and all its privileges and immunities.

  • January 4, 2011
    Later this year the U.S. Supreme Court will hear oral argument in Wal-Mart v. Dukes, involving the nation's largest class action worker discrimination lawsuit. The question before the justices involves whether the class action lawsuit can proceed against the retailing giant.

    In a recent appearance on CNN's "The Situation Room," Suzette Malveaux, a law professor at Catholic University of America's Columbus School of Law, says the Wal-Mart case is one of the major ones to watch this year. At the 3:34 mark of the CNN video, Malveaux notes that 1.5 million women are alleging pay and promotion discrimination against Wal-Mart. Malveaux says the question before the high court may appear technical, but that "class action is really important."

    Sometimes, Professor Malveaux continues, the class action is the "only way you can challenge nationwide, company-wide misconduct." An individual might not be able to afford a lawyer or might be hesitant to take on an employer. "So there's strength in numbers, and the class action is sometimes the only way people have their day in court," she says.

    A recent Los Angeles Times editorial also touched upon the importance of class action lawsuits, saying they "are often the only way to achieve justice for workers who can't -and shouldn't have to - proceed with anti-discrimination claims individually. But whether such suits can go forward depends on a court's determination that there are questions of law and fact common to members of the class. This case is a bold attempt to persuade a conservative Supreme Court to dramatically narrow the criteria for determining what a class is. If Wal-Mart succeeds, victims of discrimination in future cases will find it much more difficult to pursue justice. There is currently no limit on the size of a class, nor should there be."

  • January 4, 2011
    Guest Post

    By Bob Edgar, president and CEO of Common Cause and a former member of the United States House of Representatives (1975-1987 - Seventh District, Pennsylvania).
    In America's colonial days, the Spaniards who vied with England and France for control of the New World coined a word - "filibusteros" -- for the pirates who sacked ships and looted settlements along the Atlantic seaboard.

    Today's American filibusteros wear $500 suits and carry BlackBerries, not cutlasses, on their belts. We call them senators. The piracy continues however, now directed at our own government and legalized, even enshrined by our political elites.

    In the just-concluded 111th Congress, Senate filibusteros blocked or needlessly delayed action on more than 130 bills and nominations for the federal bench or executive offices. They flouted the principle of majority rule, replacing it with a tyranny of the minority, and insisted with straight faces that they were acting in the best traditions of American democracy.


    The fact is that the modern filibuster, through which one senator or a handful can kill legislation by talking, talking, talking so long that the majority gives up and moves on to something else, has never been part of the Constitution or any law. It's not even in the original rules of the Senate.

    It's really just an accident.

    America's founders saw the Senate as a place for careful, thorough deliberation, in contrast to the more mercurial House of Representatives. George Washington famously described the Senate as the saucer where the passions of the day were poured out like scalded coffee to cool.

    The first senators considered themselves gentlemen and were loath to end debates until everyone had a chance to be heard. Still, the original Senate rules included a mechanism to force action by a simple majority vote.

    It was rarely used. As he left the vice-presidency in 1805, Aaron Burr noted that he'd presided over only one vote to end debate during his four years in office. The following year, senators decided that the rule permitting a motion to end debate was unneeded and eliminated it. The move enabled a single senator to block action by the entire body.

    Even so, the first real filibuster didn't come for another 35 years, in 1841, and there were only 32 more in 76 years after that.

    In 1917, after a filibuster blocked President Woodrow Wilson's bill to arm American merchant ships threatened by the German navy, the Senate finally agreed to permit limits on debate, changing the rules to allow a cutoff, or cloture, on the vote of a two-thirds majority. The threshold was lowered to a three-fifths majority, now 60 senators, in 1975.

    Not until the last quarter of the 20th century did filibusters become a popular parliamentary tactic. Democrats and Republicans alike now characterize them as a critical check on the excesses of the majority, a tool that forces both sides to compromise so that legislation can move forward.

    It sounds good, but in today's hyper-partisan Senate it just isn't true. Modern filibusters actually stifle debate rather than extend it, block compromise rather than encourage it. Here's how.