Judicial independence

  • December 14, 2011

    by Jeremy Leaming

    A proposed balanced budget amendment is dead, for now. The Senate defeated two versions of the measure aimed at enshrining in the Constitution a demand that the federal government maintain a balanced budget.

    The House handily defeated a version, similar to one Congress nearly passed in 1995, last month. The Senate, however, had to vote on a so-called balanced budget amendment because of the deal reached in late summer to end the debt-ceiling debacle. The Senate, mostly along Party lines, rejected two versions of a balanced budget amendment.

    Sen. Dick Durbin, (D-Ill.), speaking from the Senate floor yesterday, said some of his colleagues “believe we should enshrine in our Constitution their views of what the federal budget should look like. They want to radically reshape our constitutional framework in order to relieve Congress of its political and moral responsibility to make tough choices about taxing and spending. They want to tie the hands of Congress on budget decisions and pass important decisions on to another branch of government, our federal judiciary.”  

    “This is not what the Founding Fathers intended,” Durbin continued. “The Constitution gives the power of the purse expressly to Congress. Fulfilling the constitutional duty carries some political risk, but we all signed up for that job. Members of Congress should not try to change the Constitution to avoid their duty to make tough and important decisions.”

    Earlier this month, Alan B. Morrison, a distinguished law professor at George Washington University, testified before a Senate panel against a balanced budget amendment. Morrison, in part, said the measures being considered would likely force the federal courts into budgetary matters. He said that “thrusting the courts into budget battles is to me, and I believe to most others who have given the matter any serious thought, a terrible idea.” Morrison’s entire testimony is available here.

    Durbin, during his floor remarks, cited Morrison’s testimony, saying, “He asked the basic question: Who is going to enforce this amendment? If in fact Congress does something in violation of the amendment, who can sue? And which court would consider it? It is a valid question because ultimately this will end up in the courts. The courts will have to make some rather unique decisions. What are the outlays and receipts of the United States? What was the gross domestic product? These are issues which many in the court may find challenging if not impossible to deal with on a timely basis.”

  • December 2, 2011
    Sen. Harry Reid (D-Nev.) filed cloture Thursday evening on the nomination of Caitlin Halligan to the U.S. Court of Appeals for the D.C. Circuit. That vote to end debate and hold an up-or-down vote on her nomination will occur  Tuesday at noon. Halligan was nominated to fill a seat vacated in 2005 by now-Chief Justice Roberts.
    As part of a deal to schedule votes on five nominees, the Senate unanimously confirmed the nomination of Christopher Droney to the U.S. Court of Appeals for the Second Circuit. Sen. Patrick Leahy, the chairman of the Senate Judiciary Committee, notes Judge Droney will fill a judicial emergency vacancy that has existed for more than two years.
    The Senate Judiciary Committee reported out the nominations by voice vote of Jacqueline H. Nguyen to the U.S. Court of Appeals for the Ninth Circuit, Gregg Jeffrey Costa to the U.S. District Court for the Southern District of Texas, and David Campos Guaderrama to the U.S. District Court for the Western District of Texas.
    President Obama nominated U.S. Magistrate Judge Timothy S. Hillman to the U.S. District Court for the District of Massachusetts, U.S. Magistrate Judge Robin S. Rosenbaum to the U.S. District Court for the Southern District of Florida, and litigator Robert J. Shelby to the U.S. District Court for the District of Utah.
  • December 2, 2011

    by Jeremy Leaming

    A proposed constitutional amendment to mandate a balanced budget has already failed in the House, but senators must also vote on a version before the end of the year as required by the debt-ceiling deal reached in the summer.

    Beginning to consider a balanced budget measure, the Senate Judiciary’s Subcommittee on the Constitution, Civil Rights and Human Rights, earlier this week, heard from detractors and supporters of the idea that has been embraced by a slew of states and mulled in Congress for more than a decade. A measure similar to the one the House defeated last month was rejected by Congress in 1995.

    Alan B. Morrison, an associate dean of George Washington University Law School for Public Interest and Public Service Law, and a distinguished law professor, told the Subcommittee the balanced budget amendment was a “bad idea,” and urged the Senate to “vote it down and get back to the real work of controlling our deficits.”

    Morrison, who helped found Public Citizen Litigation, where he was involved in separation of powers cases, many of which reached the Supreme Court, said, in part, that the proposed amendments would likely shove courts into deciding budgetary matters.

    He told senators that “thrusting the courts into budget battles is to me, and I believe to most others who have given the matter any serious thought, a terrible idea. At the very least, it is very strong medicine. But if that is what the sponsors think is needed, they should have the courage to say so. On the other hand, if the cure of judicial review is seen as worse than the ills of an unbalanced budget, Congress should make that clear in the amendment itself. If that option is taken, then the amendment will probably end up being little more than empty rhetoric, to be followed when it is convenient, and ignored when it is not. Meanwhile, serious efforts to bring our spending more in line with our revenues will be put on the back burner while Congress relies on the hope that the balanced budget amendment will do its job.”

    Morrison’s entire testimony is available here. Video of the hearing is available on the Subcommittee’s website.

  • October 24, 2011

    by Nicole Flatow

    Republican candidates are making the courts a campaign issue, launching “biting and sustained attacks on the federal courts and the role they play in American life,” The New York Times reports in a front-page story today.

    "Any one of those proposals would significantly undercut the independence and authority of federal judges,” echoes a second article from The Associated Press.

    Proposals from candidates include eliminating those courts that politicians deem “radical,” barring courts from deciding cases on same-sex marriage, and bringing judges before Congress to explain their decisions, under threat of impeachment.

     “These threats go far beyond normal campaign season posturing,” Justice at Stake Executive Director Bert Brandenburg told The Times. “They sound populist, but the proposal is to make courts answer to politicians and interest groups.”

    What’s more, several of these proposals run counter to our constitutional system, such as imposing term limits on federal judges, and enabling Congress to overturn Supreme Court decisions by a two-thirds vote.

    "Debates like these could threaten to lead to a new cycle of attempts to politicize the courts,” Brandenburg tells The Associated Press.

  • August 5, 2011
    Guest Post

    By Steve Sanders, visiting assistant professor, University of Michigan Law School

    The political media are about to begin obsessing over the Iowa Republican straw poll, scheduled for Saturday, August 13.  Recent commentary has focused on how religious conservatives have gained a chokehold on Iowa GOP politics.  Evangelical Christian activists remain outraged at the 2009 decision of the Iowa Supreme Court to legalize same-sex marriage.  Last fall, they mounted a well-funded campaign to oust three of the justices who signed that ruling.  Their TV ads  – juxtaposing footage of villainish-looking "liberal, out of control judges" against images of hunters in camouflage and a chubby kid saluting the flag – accused the justices of "ignoring our traditional values" and "imposing their own values."

    Now, activist Bob Vander Plaats, who led the anti-court jihad, is pressuring presidential candidates to sign something called "The Marriage Vow," which includes a pledge of "[v]igorous opposition to any redefinition of the Institution of Marriage – faithful monogamy between one man and one woman – through statutory-, bureaucratic-, or court-imposed recognition of intimate unions which are bigamous, polygamous, polyandrous, same-sex, etc."  Religious-right darlings Michele Bachmann and Rick Santorum were the first candidates to enthusiastically sign up.

    The picture of Iowa we get from the mainstream media through next year's caucuses is likely to be of a state in the grip of militant Tea Partiers and theocrats.  That would be a shame, because the agenda of these particular activists – with their narrow view of social equality and hostility toward an independent judiciary – is unfaithful to the state's social and legal heritage.