Separation of powers

  • March 10, 2010
    Chief Justice John Roberts complained about President Obama's State-of-the-Union critique of the high court's decision in Citizens United v. FEC, saying the address had become too political. The Associated Press reported that following a speech to University of Alabama law students, Roberts responded to a student's question about the president's criticism of the decision. "To the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we're there," Roberts said.

    Roberts conceded that anyone is free to criticize Supreme Court rulings, but in this instance the surroundings called for muted or no criticism. "The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court - according [to] the requirements of protocol - has to sit there expressionless, I think is very troubling."

    Several media sources following the State of the Union, noted that Justice Samuel Alito did not sit expressionless, mouthing the words "not true," to Obama's criticism of Citizens United. The decision invalidated decades of regulation of corporate campaign financing, making it easier for corporations to spend freely on electioneering.

    The AP reported that White House press secretary Robert Gibbs, when asked about Roberts' comments, said, "What is troubling is that this decision opened the floodgates for corporations and special interests to pour money into elections - drowning out the voices of average Americans."

    Recently, ACS hosted a national event focusing on the implications of the decision. Video of the event is here. Following the event, Professor William P. Marshall, a constitutional law expert, talked with ACSblog about what the decision reveals about the Supreme Court, and elections law expert Joseph Sandler focused on what the decision may mean for future elections. 

  • March 2, 2010
    Yesterday, The Associated Press reported that Senate Republicans are employing the filibuster to slow or scuttle legislation "at a record-setting pace." The article went on to cite the number of times cloture votes have been called to see if the majority can hold 60 votes to overcome a filibuster. John Aravosis of Americablog, studied the numbers on the Senate Web site and concluded that the AP got the numbers "wrong regarding GOP filibusters." But he maintains that despite the mistake, "the Republicans are filibustering twice as often as Democrats have in any previous Congress - so they clearly are abusing the system."

    Aravosis writes:

    What the data clearly shows is that he GOP is filibustering at twice the rate of what the Democrats did before, including what they did under Bush. So Republicans can't claim that Democrats did it too - they didn't. Not like this.

    Another interesting data point: IN the last ninety years, there have been 1,195 cloture motions filed, and a874 cloture votes, per the Senate site. The Republicans in the last three years that they've been in the minority, have caused 215 of the motions to be filed, and 157 of those cloture votes. That means in just the past three years, the Republicans have been responsible for 18% of all filibusters recorded in the past 90 years.

    On March 9 at the National Press Club, ACS will host a panel discussion of experts on the filibuster's effect on judicial nominations. See here for more on the national filibuster event.

    Also, Sen. Tom Harkin recently wrote in a guest post for ACSblog on his effort to reform
    the filibuster.

  • February 16, 2010
    Guest Post

    By Senator Tom Harkin (D-Iowa). Senator Harkin (pictured) was elected to the U.S. House of Representatives in 1974, where he served ten years before being elected to the Senate.

    Fifteen months ago, a sizable majority of voters sent Democrats to Washington to implement real change and reform. Largely because of the filibuster, their hopes for change have been frustrated. Instead of progress, the public sees nothing but gridlock.

    In the 71 years since Hollywood filmed "Mr. Smith Goes to Washington," the aim of the filibuster has been turned completely upside down. Seven decades ago, Jimmy Stewart, "Senator Smith," was the little guy using the filibuster to battle the special interests. Today, it is the special interests that are using the filibuster to kill legislation that would benefit the little guy.

    The filibuster, which was once a dramatic challenge to majority rule only used in extraordinary circumstances, is now used or threatened on virtually every measure and every nominee. For example, last December Republicans filibustered a motion to proceed to a bill to extend unemployment compensation. After delaying Senate business for a month, the bill passed 98-0. In other words, Republicans filibustered a bill they fully intended to support simply to stall business in the Senate.

    Similarly, Senate Republicans filibustered a bill that funded key agriculture, conservation and nutrition programs. That bill passed 80-17. They filibustered the Credit Card Holders Bill of Rights, which passed 90-5. And they even filibustered the Fraud Enforcement and Recovery Act, which passed 92-4.

    Americans are so frustrated by the parliamentary delays that in a recent poll, some 53 percent of Iowans and 50 percent of Americans said they think the filibuster should be abolished.

    A supermajority of 60 votes should not be needed to enact virtually any piece of legislation. In fact, the Framers of the Constitution were very clear about circumstances where a supermajority is required. There are only five: Ratification of a treaty, override of a veto, votes of impeachment, passage of a Constitutional amendment, and the expulsion of a member.

  • February 16, 2010
    Senate Republicans should cease holding up President Obama's "well qualified" nominee to head the Office of Legal Counsel (OLC), top Senate Judiciary Committee members maintain in a column for The National Law Journal.

    Sens. Patrick Leahy, chairman of the Senate Judiciary Committee, and Sheldon Whitehouse, chairman of the Judiciary Subcommittee on Administrative Oversight and the Courts, write that months "of obstruction by Senate Republicans" have stymied a vote on Dawn Johnsen's nomination to lead the OLC, noting that Obama nominated her a year ago.

    Leahy and Sheldon write:

    Johnsen has previously served for five years in OLC. She defended legitimate presidential powers. She produced opinions that conformed to the law, even if they did not advance the president's political interests. She has a proven record of setting aside her personal views to render independent legal opinions rooted in the Constitution and the law. Johnsen's former colleagues have called her the conscience of the office. Walter Dellinger, her former boss at OLC, has said that she ‘will be the best head of the OLC in the history of the office.'

    Main Justice notes that after Obama re-nominated Johnsen, an Indiana University law school professor and a former member of the ACS Board of Directors, in January, the Senate committee has continued to delay a vote on the nomination. "The panel is expected to consider her nomination next week," according to Main Justice

  • February 16, 2010
    In an article for The American Prospect, Attorney General Eric Holder Jr., asserting his Department's independence from political elements of the administration, tells Dayo Olopade, "I'm not the secretary of justice. I'm the attorney general of the United States." The article is one of three recent stories exploring ramifications of some decisions made during Holder's tenure as Attorney General.

    The New York Times reported yesterday that Holder, a former member of the ACS Board of Directors, "has switched from resisting what he had considered encroachment by White House officials to seeking their guidance." According to The Times a catalyst was the Justice Department's decision to prosecute Khalid Sheikh Mohammed, who has said he plotted the Sept. 11 terrorist strikes, and four co-conspirators, in federal court instead of a military tribunal. Indeed, Holder told The Times that political attacks on that decision were "starting to constrain my ability to function as attorney general."

    In an article for The New Yorker, Jane Mayer explores tensions between some in the White House and the Justice Department, especially over the decision on Mohammed. Explaining some of his reasoning, Holder said that the administration should not rely on the controversial interrogation techniques used by the Bush administration to bring justice to the alleged Sept. 11 conspirators. "We are not going to use the products of interrogation techniques that this President has banned," Holder said.