Professor Geoffrey R. Stone

  • May 10, 2011

    As the U.S. Senate finally confirmed the nomination of Judge Edward Chen to a vacant seat on the U.S. District Court of the Northern District of California, ACS conducted a teleconference with bloggers about the ongoing crisis of escalating vacancies on the federal bench.

    Chen, a federal magistrate judge since 2001 was nominated to the U.S. District Court seat, which has been declared a judicial emergency by the Administrative Office of the U.S. Courts, more than 21 months ago.

    Chen’s nomination, as noted by Senate Judiciary Chairman Patrick Leahy in a statement, was obstructed by Republicans who opposed his civil rights advocacy work. At a point in his legal career, Chen was a staff attorney for the American Civil Liberties Union (ACLU).

    Chen was confirmed today largely along a party-line vote of 56 – 42.

    In Leahy’s statement today, he blasted the opposition to Chen, calling it “ugly.” He continued, “One Republican Senator [on the Senate Judiciary Committee] in explaining his opposition said that Judge Chen has the ‘ACLU gene.’"

    Leahy noted that this should have been “an easy nomination to confirm. It is no surprise that Judge Chen’s nomination received the highest possible rating from the American Bar Association’s Standing Committee on the Federal Judiciary, unanimously ‘well qualified.’"

    Last week, Senate Majority Leader Harry Reid forged an agreement to limit debate on Chen’s nomination, hindering efforts by Republicans to block an up-or-down vote on Chen.

    ACS Executive Director Caroline Fredrickson lauded the action, calling it “a disservice to the nation to keep our federal courts hostage to petty politics.”

    Fredrickson added that for nearly “two years, Republicans have worked to scuttle the nomination of this highly qualified and experienced jurist.” With federal court vacancies on the rise, Fredrickson blasted the delay tactics as “inexcusable.”

    Chen (pictured), as Sen. Leahy noted, will become “only the second Asian Pacific American to serve on the district court bench in the 150-year history of the Northern District of California.”

    In today’s ACS teleconference for bloggers, Fredrickson said there is far too little media coverage of the rancorous situation surrounding judicial nominations, which is leading to an escalating number of vacancies on the federal bench. She cited progress such as the recent confirmation of Rhode Island lawyer John “Jack” McConnell Jr. to the U.S. District Court for the District of Rhode Island.

    But Fredrickson said that this recent movement of the president’s judicial nominations “belies the truth that there has been a systematic delay of judicial nominees by Republicans in the Senate; people have gotten bottled up after having a unanimous vote out of the Senate Judiciary Committee, completely uncontroversial nominees who are held up because people can simply hold them up.”

    She added that this is “a problem that is not getting better, it is getting worse. We anticipate a great number of retirements” of federal court judges over the coming years, which will produce more vacancies.

    The teleconference also included commentary from noted constitutional law professor and ACS Board Chair Geoffrey R. Stone, and Professor and blogger Scott Lemieux.

    Professor Stone examined several consequences of the continued obstruction of judicial nominations, saying one of the most damaging is the politicization of the judicial nominations process.

    Lemieux, a blogger at The American Prospect and Lawyers, Guns & Money, noted that the federal courts have long been skewed to the right due to the many Republic-appointed nominees. Unless the federal courts become more balanced, it means that policies enacted by the Obama administration are in danger of either being invalidated by the federal courts or interpreted in ways that are far afield from congressional intent.

    Listen to audio of the teleconference here. To follow the number of vacancies on the federal bench and status of the judicial nominations, see


  • April 7, 2011

    The Supreme Court majority this week took a significant swipe at the ability of courts to invalidate government policy that advances religious work, writes one of the nation’s leading constitutional law experts in a piece for The Huffington Post.

    Taking a look at the 5-4 opinion in Arizona Christian School Tuition Organization v. Winn, Geoffrey R. Stone, a distinguished law professor at the University of Chicago and chair of the ACS Board, says the majority decision, authored by the Court’s conservative wing, “carved a large hole out of the Establishment Clause of the First Amendment.”

    Stone (pictured at an ACS National Convention) centers on the Supreme Court’s 1968 opinion in Flast v. Cohen, in which the Court found that taxpayers have standing to bring lawsuits challenging government action as a violation of the First Amendment’s Establishment Clause.

    He writes that the high court’s majority in a 2007 and in this week’s opinion has turned away from Flast, in the process making it almost impossible for courts to invalidate unconstitutional government support of religion. Citing Justice Anthony Kennedy’s majority opinion in the Arizona tax credit case, Stone says Kennedy concluded “that taxpayers had no standing to challenge this program because it involved tax credits rather than government expenditures. In other words, if the government had given the funds directly to the organizations, the taxpayers would have standing, but because the government instead gave the funds to individuals to reimburse them for giving money to the organizations, the taxpayers did not have standing.”

    Stone continues:

    As Justice Elena Kagan explained in a powerful dissenting opinion, joined by Justice Breyer, Ginsburg and Sotomayor, this distinction "has as little basis in principle as it has in our precedent." Indeed, the conservatives' new approach "enables the government to end-run Flast's guarantee of access to the Judiciary." As Kagan observed, under the conservatives' analysis, a state that wants "to subsidize the ownership of crucifixes" can now simply grant a tax credit to individuals who buy crucifixes. That program would effectively be insulated from constitutional challenge, not because it is constitutional, but because no one would be permitted to raise the question.

    For more analysis of the Arizona case, see this ACS guest blog post from Alex Luchenitser, a lawyer for Americans United for Separation of Church and State.