February 2012

  • February 16, 2012

    by Jeremy Leaming

    New Jersey lawmakers, in historic fashion, advanced equality, by voting to allow lesbians and gay men to wed. As The Star-Ledger notes it was the first time the Assembly “had ever voted on the measure.”

    It also follows this week’s action in Washington, where Gov. Chris Gregoire enacted a marriage equality law. That state joined New York, Massachusetts, Connecticut, New Hampshire, Vermont, Iowa and Washington, D.C. in supporting same-sex marriages. Not surprisingly, Religious Right activists are vowing to topple the Washington law, by placing it before voters.

    In New Jersey, Republican Gov. Chris Christie (pictured) has said he would veto the marriage equality bill. He says civil liberties of lesbians and gay men should be placed before voters. The Star-Ledger says the veto may happen today.

    Still, supporters of marriage equality celebrated the vote. Assemblyman Reed Gusciara (D-Mercer) said “this is probably one of the highlights of my legislative tenure – no matter what the ultimate outcome may be.”

    The Maryland legislature is also considering a marriage equality measure. Maryland Gov. Marin O’Malley, unlike Christie, is supporting equality. After Washington lawmakers approved its marriage equality bill, O’Malley issued a statement saying, in part, “It is time for Maryland to do the same.”

  • February 16, 2012

    by Jeremy Leaming

    During an early preview of forthcoming Supreme Court consideration of the landmark health care reform law, it was all about the law’s minimum coverage provision.

    Even though the U.S. Supreme in late March will hear oral argument spanning three days and covering four constitutional issues arising from the Eleventh Circuit’s opinion striking the law, it was the minimum coverage provision that the panelists wrangled over, and sometimes heatedly so, or at least in animated fashion.

    The event hosted by SCOTUSblog and BloombergLaw included former U.S. Solicitor General Paul Clement, representing the states’ challenges to the Affordable Care Act, Michael Carvin, a Jones Day partner representing the National Federal of Independent Business, also arguing against the health care law, and former U.S. Acting Solicitor General Neal Katyal (pictured) and Yale Law School Professor Akhil Reed Amar, arguing that the ACA should withstand the constitutional challenges.

    Clement, who moderator Tom Goldstein heaped praise on – one of the greatest attorneys of his generation, or something to that effect -- repeated well-worn conservative talking points.

    The ACA’s minimum coverage provision is unprecedented. (That provision takes effect in 2014, and requires those who can afford it to obtain minimum health insurance coverage or pay a penalty with their annual tax return. The minimum coverage provision had, until Obama decided to support it, backing of conservative politicians and activists. Congress determined the provision was crucial to its efforts to help millions more people become insured. Based on studies by the CBO, the minimum coverage provision is necessary to ensure that many of the nation’s uninsured will soon be covered.)

  • February 16, 2012
    No Undocumented Child Left Behind
    Plyler v. Doe and the Education of Undocumented Schoolchildren
    Michael A. Olivas

    By Michael A. Olivas, William B. Bates Distinguished Chair of Law at the University of Houston Law Center, and director of the school’s Institute of Higher Education Law & Governance.

    Immigration has always been a complex transaction and dangerous sojourn, and local forces have attempted to control the process, especially as the country was forming and borders were not yet fully established. Throughout United States history, state and local politicians have introduced and enacted thousands of anti-alien bills. Some legislation has even been so mean-spirited as to advocate a repeal of 1982’s  Plyler v. Doe, the watershed Supreme Court decision that required Texas to give undocumented children free access to public schools. In difficult economic times, elected officials find scapegoating aliens is an easy way to reach low-hanging fruit, as if these workers were the source of the sputtering economy. For example, Alabama enacted HB 56 (the “Alabama Taxpayer and Citizen Protection Act”) in 2011, regarded as the most-draconian anti-immigrant legislation to date. The statute even required schools to conduct a census of undocumented children in schools, until it was enjoined by the trial and Circuit judges.

    Such arguments and legislation, mixed in a cauldron amidst shrill warnings about the rights of “real Americans,” lead inevitably to a sense of divisiveness, racial superiority, and undifferentiated prejudice. Such imprecise, undifferentiated, and broad-brush swipes at “illegals” and “anchor babies” generally tar all the groups. Free-floating racialized animus often leads to a generalized resentment against all people of color, or “others,” especially those constructed as “foreigners.”  If there were a group that holds promise to become productive, undocumented K-12 and college students would surely be that group. With the generally dismal schooling available to these students, that even a small percentage could meet the admission standards of colleges and universities is extraordinary. Given their status and struggle, each successful student represents a story of substantial accomplishment. Most of these students have parents who struggled to bring them to this country and exercised considerable risk to enable their achievements. That they succeed under extraordinary circumstances is remarkable to virtually all who observe them. These students’ success partially explains why so many educators and legislators have accepted Plyler and worked to assist them in navigating the complexities of school and college. Despite the success of anti-immigrant rhetoric in shaping a discourse and of restrictionists in fashioning resentments, reasonable legislators of both parties have attempted to address the issues these students face.

  • February 16, 2012

    by Nicole Flatow

    This morning, The New York Times’ Gail Collins adds to the commentary on Adalberto Jose Jordán’s long and obstruction-filled road to confirmation in a facetious column describing her “shock” at Congress’ deep unpopularity. And she means deep unpopularity. As in, “Unpopular like the Ebola virus, or zombies. Held in near-universal contempt, like TV shows about hoarders with dead cats in their kitchens.”

    Jordan’s nomination, she writes, is the latest example of Congress’ so-called “bipartisan cooperation.” She explains:

    This week, the Senate confirmed Judge Adalberto Jose Jordan to a seat on the federal Court of Appeals for the 11th Circuit in Atlanta. A visitor from another country might not have appreciated the proportions of this achievement, given the fact that Jordan, who was born in Cuba and who once clerked for Sandra Day O’Connor, had no discernible opposition.

    But Americans ought to have a better grasp of how the Senate works. The nomination’s progress had long been thwarted by Mike Lee, a freshman Republican from Utah, who has decided to hold up every single White House appointment to anything out of pique over ... well, it doesn’t really matter. When you’re a senator, you get to do that kind of thing.

    This forced the majority leader, Harry Reid, to get 60 votes to move Judge Jordan forward, which is never all that easy. Then there was further delay thanks to Rand Paul, a freshman from Kentucky, who stopped action for as long as possible because he was disturbed about foreign aid to Egypt.

    All that is forgotten now. The nomination was approved, 94 to 5, only 125 days after it was unanimously O.K.’d by the Judiciary Committee. Whiners in the White House pointed out that when George W. Bush was president, circuit court nominations got to a floor vote in an average of 28 days.

    No matter. Good work, Senate! Only 17 more long-pending judicial nominations to go!

    In an effort to move another one of those long-pending nominations, Senate Majority Leader Harry Reid filed a motion yesterday to force a vote on federal prosecutor Jesse Furman, nominated to a trial court seat in the Southern District of New York.

    Senate Judiciary Committee Chairman Patrick Leahy had this to say about a week spent overcoming filibusters of judicial nominees:

  • February 15, 2012

    by Nicole Flatow

    After a final effort to exploit Adalberto Jose Jordán’s judicial nomination for political capital, the Senate confirmed Jordán Wednesday to the U.S. Court of Appeals for the Eleventh Circuit.

    Jordán, who was rated unanimously well qualified by the American Bar Association and cleared the Judiciary Committee with unanimous support, has been pending on the Senate floor since before the December recess, but the Senate opted not to schedule a vote on his nomination and fill an empty seat considered a judicial emergency.

    Fed up with the persistent inaction on consensus judicial nominees like Jordán, Senate Majority Leader Harry Reid filed a motion Thursday to force a vote on his nomination, and an overwhelming majority of senators voted in favor of the motion. But Sen. Rand Paul, seeking to gain leverage for an unrelated proposal to cut off aid to Egypt until detainees are released, exploited a procedural rule and refused to consent to a vote before the permitted 30 hours for “debate” had lapsed.

    While the Senate waited for the 30 hours to elapse, several other pieces of legislation were held up.

    “Paul wants to send a message to his colleagues about Egypt and American foreign policy -- and he's doing it by adding one wrong on top of another,” wrote Andrew Cohen of The Atlantic.

    The Washington Post’s Dana Milbank said of the hold-up: