March 2011

  • March 11, 2011

    This week was marked by both some limited movement on the judicial nominations front and increased attention to the crisis created by the many lingering vacancies. The Senate unanimously confirmed four judicial nominees to federal district court seats, including two to the Central District of Illinois where the debilitating strain of three vacancies was documented in a Washington Post front-page story. The Senate Judiciary Committee approved six nominees, including former New York Solicitor General Caitlin Joan Halligan, and President Obama made two more judicial nominations: Steve Six, former Kansas Attorney General, for the U.S. Court of Appeals for the Tenth Circuit, and commercial litigator William Francis Kuntz, II, for the U.S. District Court for the Eastern District of New York.

  • March 11, 2011
    Guest Post

    Craig Johnson is an attorney at Sweet and Associates in Milwaukee, Wis. He is on the Board of Directors of the American Constitution Society's Milwaukee Chapter.

    The bruising three-week fight to strip public employees in Wisconsin of nearly all collective bargaining rights came to a quick and shocking end in a span of 24 hours this week. Republican senators on Wednesday broke off negotiations with Democrats who had fled to Illinois in February to stop a controversial "budget repair" bill from passing. Without the Democrats, the 19 Republican senators had been unable to achieve the constitutionally-required quorum of 20 to pass budget legislation in the state. Instead, late Wednesday afternoon the Republicans amended the bill to remove expenditures and instead settled for what many believe had been their actual goal all along - severely curtailing collective bargaining rights for state and local employees.

    The scene at the Capitol on Wednesday was remarkable, as Republicans hastily called a special joint legislative committee into session to pass the amended bill and then ignored the protests of the lone Democratic member of the committee as he asked repeatedly what exactly they were voting on. Serious questions about the legality of the committee action were left in the wake as Republicans gaveled the 15-minute meeting to a close and then quickly walked across the Capitol to take the bill up on the floor of the Senate, where it passed 18-1.

    In the meantime, the Senate Democrats, who upon getting word of the Senate action had literally jumped in their cars to head back to Madison, pulled up short of the Wisconsin-Illinois border to decide their next move. Crowds gathered in downtown Madison as word spread via Facebook, Twitter and text message about what was taking place at the Capitol. By the time the Senate vote was over, the crowds had grown so large that the Republicans had to be escorted from the chamber by armed police officers. On Thursday, protesters attempted to prevent the state Assembly from taking up the amended bill by blocking access to the chamber, but were eventually removed by state troopers. The Republican-controlled Assembly then passed the amended bill late in the day with all Democrats voting against it.

  • March 10, 2011

    The Senate deviated from its pattern of considering judicial nominees on Mondays today, confirming Max Oliver Cogburn, Jr., to the District Court for the Western District of North Carolina, Senatus reports.

    This is the fourth nominee confirmed by the Senate this week, and the Senate has scheduled a vote for Monday on James Emanuel Boasberg, to be a U.S. District Court judge for the District of Columbia.

    Also this week, the Senate Judiciary Committee approved six more nominees, who will now await a vote by the full Senate. Five district court nominees were reported without controversy by voice vote, but Caitlin Joan Halligan, the former New York solicitor general appointed to the U.S. Court of Appeals for the District of Columbia Circuit, encountered opposition, and was moved forward by a vote of 10 to 8.

    Sen. Charles Grassley, the ranking Republican on the committee, criticized Halligan's record, citing opposition by gun rights groups, The Blog of Legal Times reports.

    "The opposition of the NRA and the Gun Owners of America could pose a major challenge for Halligan's nomination if moderate Democrats are tempted to side with those organizations over their own party's leadership," The BLT explains. "Gun-rights groups also opposed the confirmation of justices Elena Kagan and Sonia Sotomayor, and they have been credited with adding to the ‘no' votes those two received."

  • March 10, 2011
    To the "ignoble list," of periods of over-the-top, unjustified fear, the nation, thanks in part to lawmakers like U.S. Rep. Peter King, can include the "Muslim Menace," writes First Amendment scholar Chares C. Haynes.

    Haynes, the First Amendment Center's Religious Freedom Education Project director, knocks King's Homeland Security Committee hearing supposedly examining a "radicalization" of American Muslim communities, saying it fails to address a serious issue while stirring more misunderstanding and unwarranted fears of Muslims.

    Noting that King has tried to "tamp down anxiety" about the hearing, Haynes says he "keeps repeating an unsubstantiated allegation that ‘over 80% of the mosques in this country are controlled by radical Imams.' And he claims that many American Muslim leaders ‘acquiesce in terror or ignore the threat.'"

    Haynes continued:

    With King's imam-bashing as the starting point, it's not surprising that American Muslims - as well as many Americans of other faiths - worry that congressional hearings will be used to further conflate terrorism and Islam in the public imagination.

    It's already getting ugly out there.

    Last week video images surfaced of angry hecklers in Orange County, Calif., shouting ‘terrorists go home' and other insults to American Muslim families attending a fundraiser last month to fight homelessness and hunger. Small children can be seen huddled close to their parents as they navigate through shouting protesters and ugly signs to get in and out of the building.

    U.S. Rep. Keith Ellison testifying at today's hearing slammed King's sweeping hearing as undermining the nation's efforts to combat terrorism.

    Ellison (pictured) said, "It is true that specific individuals, including some who are Muslims, are violent extremists. However, these are individuals - but not entire communities. Individuals like Anwar Al-Aulaqi, Faisel Shazad, and Nidal Hasan do not represent the Muslim American community. When their violent actions are associated with an en entire community, then blame is assigned to a whole group. This is the very heart of stereotyping and scapegoating, which is counter-productive. This point is at the heart of my testimony today. Ascribing the evil acts of a few individuals to an entire community is wrong; it is ineffective; and it risks making our country less secure."


  • March 10, 2011
    Andrew Jackson and the Constitution
    The Rise and Fall of Generational Regimes
    Gerard N. Magliocca

    By Gerard N. Magliocca, a law professor at Indiana University School of Law - Indianapolis and the author of Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes, now out in paperback.
    Andrew Jackson and the Constitution is the first book in a multi-volume series that offers a new take on our constitutional history. While President Obama's victory in 2008 was a watershed in the history of race relations, in all other respects his election was an unremarkable reaffirmation of a pattern that dates back to the dawn of the Republic. Every thirty years or so, a new political movement rises up against constitutional abuses that they blame on a prior generation of leadership that is out-of-touch with the concerns of ordinary Americans. Starting with the Founders' rebellion against the British Empire in the 1770s, this cycle of reform, ossification, and rebirth has recurred with Jefferson's Revolution of 1800, the triumph of Jacksonian Democracy in 1828, the unlikely rise of Lincoln in 1860, the realignment following the epic duel between William McKinley and William Jennings Bryan in 1896, Roosevelt's New Deal in 1932, the Civil Rights Movement of the 1960s, and the Reagan Revolution of 1980.

    My book traces the progress of this "generational cycle" from 1819 until 1870. The story begins at the height of the Virginia Dynasty, represented in the White House by James Monroe and on the Supreme Court by Chief Justice John Marshall. With the onset of a financial panic caused by a real estate bubble, discontent grew and soon found a leader in Andrew Jackson. He won the Presidency in 1828 and mounted two major constitutional attacks on the status quo. First, Jackson sought to redefine the relationship between the United States and the Native American Tribes. To achieve that goal, Congress enacted the Indian Removal Act in 1830 and a long and bitter debate, thereby starting the process of reducing tribal autonomy and moving them physically from existing states to the territories. Second, the President vetoed the new charter of the Bank of the United States in 1832, declaring that institution unconstitutional in the name of more limited federal power. Jackson's initiatives met with intense resistance from the remnants of the old generation, most notably in Worcester v. Georgia, where Chief Justice Marshall was sharply critical of efforts to undermine the sovereignty of the Cherokee Tribe. When these constitutional issues were put to the voters, though, the President and his party prevailed in 1832, 1834, and 1836. By 1838, Jacksonian Democracy was entrenched in the courts in the person of Chief Justice Roger B. Taney, Jackson's close advisor, and the Cherokees were marching into exile along the "Trail of Tears."