The Courts

  • March 18, 2011
    By unanimous votes, the Senate confirmed D.C. Superior Court Judge James "Jeb" Boasberg and litigator Amy Berman Jackson to the U.S. District Court for the District of Columbia, The Blog of Legal Times reports.

    Last month, the district court's chief judge, Royce Lamberth, criticized the delays in confirming people to that court, where there were three vacancies and the load of cases from Guantanamo Bay had severely delayed civil trials.

    As the National Women's Law Center's Amy Matsui points out in a blog post, the Senate adjourned yesterday evening until March 28, leaving nine nominees without a vote who have been approved by the Senate Judiciary Committee and sent to the Senate floor.

    "When they return, it sounds like a little March Madness may be in order - picking up the pace on confirming judges," Matsui writes.

    Also this week, the Senate Judiciary Committee has approved district court nominee Edward Chen by a vote of 10 to 8, sending his nomination to the full Senate for a vote.

    Chen, nominated to the Northern District of California, was one of four nominees explicitly excluded from confirmation deal discussions last session because of Republican opposition. Another of those nominees was UC Berkeley associate dean and law professor Goodwin Liu, who was held over by the committee during the same executive business meeting "at the request of Republicans," Main Justice reports.

    The committee held "friendly" hearings on three other district court nominees, including J. Paul Oetken, who would become the first openly gay male federal judge. No Republican senators were present for the hearing of Oetken and Paul Engelmeyer, both nominated to the Southern District of New York, and Ramona Manglona nominated to the District of the Northern Mariana Islands.

    Another openly gay federal court nominee, Edward C. DuMont, nominated to the U.S. Court of Appeals for the Federal Circuit, has not been scheduled for a hearing since he was nominated last April.


  • March 18, 2011
    A state judge has temporarily blocked Wis. Gov. Scott Walker's law intended to strip collective bargaining rights from public workers.

    Dane County Circuit Judge Maryann Sumi issued a temporary restraining order against the law saying that a lawsuit lodged against the law was likely to succeed, The Milwaukee Journal Sentinel reports. The lawsuit brought by Dane County District Attorney Ismael Ozanne charges that lawmakers violated the state's open meeting law in moving the law out of the legislature for Gov. Walker to sign.

    "It seems to me the public policy behind the effective enforcement of the open meeting law is so strong that it does outweigh the interest, at least at this time, which may exist in favor of sustaining the validity of the (collective bargaining) law," Sumi wrote. "We here in Wisconsin own our government ... We own it in the sense that we are entitled to free and open access to government meetings."

    The newspaper reports that the next hearing in the case is set for March 29. Talking Points Memo reports that Wisconsin Attorney General J.B. Van Hollen has announced that he would appeal Judge Sumi's order. In a statement about his plan, Van Hollen said, "No matter whether individual citizens agree with the substance of the bill or the manner in which it was enacted, I would hope all see the value in ensuring this matter be given the opportunity to work its way expeditiously through the judicial process."

    TPM notes that Van Hollen's stance on Sumi's action stands in sharp contrast to his take on U.S. District Judge Roger Vinson's opinion that the landmark health care law, the Affordable Care Act, is unconstitutional. After Vinson issued his opinion, Van Hollen said, "Judge Vinson declared the health care law void and stated in his decision that a declaratory judgment is the functional equivalent of an injunction. This means that, for Wisconsin, the federal health care law is dead -- unless and until it is revived by an appellate court." 

    Efforts to slash pay and bargaining rights of workers in Michigan and Ohio have also drawn protests and scrutiny from public interest groups.

  • March 14, 2011
    Federal courts struggling with rising vacancies and caseloads have increasingly turned to their senior judges to keep the wheels of justice from grinding to a complete halt. The U.S. Court of Appeals for the Ninth Circuit, however, may be an extreme case, where it has put a "third of the legal load" on the vast majority of its 19 senior judges in order to keep courthouse doors open, the Los Angeles Times reports.

    And the newspaper notes that most of those senior judges are in their 80s. Judge Betty Fletcher, 88, "retired a dozen years ago yet still works full time, on what is known as senior status," for the Ninth Circuit courts, which have "had no new judgeships added in 21 years and that have declining numbers of active judges because of partisan posturing in Congress."

    Judge Dorothy W. Nelson, 82, has carried 75 percent of the federal circuit's caseload, according to the newspaper, and took senior status 16 years ago.

    "I feel a responsibility to the litigants," Nelson told the newspaper. "The courts are not for the judges, and they are not for the lawyers. They are for the people who have real grievances that need to be heard."

    The Ninth Circuit's clerk Molly Dwyer said, "We'd be sunk without them."

    The situation may not quickly improve. The Los Angeles Times, citing the Brooking Institution's Russell Wheeler, noted the "alarming trend of lengthening times between when a vacancy occurs and when it is filled." For example, the newspaper noted that the nomination of UC Berkeley law school professor Goodwin Liu to fill a vacant seat on the Ninth Circuit has been mired in the Senate for more than a year "with no confirmation vote in sight."

    Sen. Patrick Leahy, chairman of the Judiciary Committee, has consistently urged Republicans to stop obstructing the judicial nominations process, saying at one point, "There is no good reason to hold up consideration for weeks and months of nominees reported unanimously from the Judiciary Committee."

    ACS sent to Senate leaders a letter from former federal court judges, appointed by both Democratic and Republican administrations, urging an end to the obstruction. "At this moment, our courts are overburdened and increasingly certain vacancies are being designated as ‘emergencies' by the Administrative Office of the Courts because of the length of time the court has been without a judge," the letter stated in part. "This situation is untenable for a country that believes in the rule of law."

    To follow the rising number of vacancies on the federal bench and news on judicial nominations, visit ACS's

  • 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
    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."