ACSBlog

  • April 5, 2017
    Guest Post

    by Nat Stern, John W. & Ashley E. Frost Professor, Florida State University College of Law

    The ability of politicians to utter falsehoods with legal impunity is evident today to perhaps an unprecedented degree. Less appreciated is that the overwhelming majority of judges in America qualify as politicians in the basic sense that they are chosen through some form of popular election. In the case of candidates for judicial office, however, nearly half of states codes contain a “misrepresent clause” barring deliberately false factual statements by judicial candidates.

    The basis for this ban is understandable and even admirable. In contrast to legislators and elected executive officers, judges are expected to serve as detached and impartial arbiters of the law. Dishonest campaign tactics may then be viewed as impairing the administration of justice, tarnishing the public image of the judiciary or even revealing a disqualifying character trait. Nevertheless, the misrepresent clause—as opposed to generally applicable bans on certain kinds of dishonesty like defamation and fraud—probably violates the First Amendment. This conclusion derives mainly from the confluence of three Supreme Court doctrines: stringent protection of political speech, application of this doctrine to restrictions on judicial campaign speech and refusal to regard false expression as categorically unprotected.

    It is a commonplace that unhindered political speech is essential to self-government and therefore lies at the heart of the First Amendment. Thus, the Supreme Court has repeatedly affirmed the privileged place of political expression in the hierarchy of First Amendment freedoms. Nor has the Court left any doubt that political campaign speech falls squarely within this protection. Accordingly, the Court has subjected restrictions on political expression to rigorous scrutiny.

  • April 4, 2017
    Guest Post

    by Katie Eyer, Associate Professor of Law at Rutgers Law School

    *Professor Eyer was a panelist on our March 23 event, Trans Rights in the Trump Era

    On March 30, under the pressure of significant economic boycotts, the North Carolina legislature purported to repeal its so-called bathroom bill, HB 2. Enacted in 2016, HB2 responded to a local ordinance that had adopted LGBT-inclusive anti-discrimination protections by preempting (i.e., invalidating) all such local ordinances. Most famously, HB2 went further in specifically mandating that state facilities exclude transgender people from gender identity appropriate restroom access.

    While framed as a repeal, the legislation enacted last week did not simply restore the status quo. Rather, HB 142 replaced HB2 with a moratorium on new or amended local anti-discrimination laws and legislatively preempted local or executive regulation of access to multiple occupancy restrooms, showers and changing facilities. 

    Absent knowledge of its background, HB 142 could be taken for a compromise, and that is how North Carolina’s Democratic governor and some progressive legislators, have defended their acquiescence in its enactment. But for those familiar with the history of HB2 and of LGBT equality struggles, HB 142 is a transparent attempt to suspend the mechanisms of progress for LGBT equality in the state. Just as limited state-level marriage equality victories helped to pave the way for broader marriage equality gains, incremental, local level enactment of LGBT equality has been one of the lynchpins of LGBT success in the employment, education and public accommodations realms. There can be no doubt that HB 142 is an attempt to forestall this highly effective strategy by precluding localities from demonstrating—on an incremental, locality by locality basis—that LGBT equality works (and conversely, that the claims of LGBT rights opponents lack any basis in reality).

  • April 4, 2017
    Guest Post

    *This post was adapted from a longer piece at The Vetting Room.

    by Harsh Voruganti, Founder and Principal at The Voruganti Law Firm

    On March 21, 2017, President Trump made his first lower court nomination: Judge Amul R. Thapar, for a seat on the Sixth Circuit Court of Appeals. With over 136 current and future vacancies on the federal bench, more nominees will likely follow. With a Republican majority in the Senate, the elimination of the filibuster on lower court nominations and conservative groups howling for blood, there is little incentive for Trump to choose moderates for the bench. However, one Senate practice may work to constrain Trump’s more conservative nominees and encourage him to work with Democrats: the blue slip.

    Derived from the traditions of senatorial courtesy, the blue slip is named after the traditional blue paper it is printed on. When a nominee is submitted to the Senate Judiciary Committee, “blue slips” are sent to the senators representing the nominee’s home state. The senators then return the blue slip, indicating either approval or disapproval of the nominee. If a home state senator expresses opposition to a nominee, or refuses to return a blue slip, the Committee does not move the nomination to the floor.

    While the blue slip practice goes back about 100 years, there are rare examples of nominees moving through the Senate Judiciary Committee without two positive blue slips. In 1983, then Judiciary Committee Chairman Strom Thurmond (R-SC) processed (and the Senate later confirmed) John Vukasin to a seat on the Northern District of California, over the objection of Sen. Alan Cranston (D-CA). A few years later, then-Chairman Joe Biden (D-DE) processed President George H.W. Bush’s nomination of Vaughn Walker to the same court, again over Cranston’s objection.

  • April 3, 2017
    Guest Post

    by Alexandra D. Lahav, Professor of Law at the University of Connecticut and Author of In Praise of Litigation

    The Senate Judiciary Committee is considering a bill – passed along partisan lines in the House – that threatens the way Americans have enforced the law for seventy five years. The bill is called the Fairness in Class Action Litigation Act (FICALA) and its results are likely to strike a major blow against class actions and aggregate litigation. 

    The recent hearings on Supreme Court nominee Neil Gorsuch highlighted the threat that current lawmakers pose to the administrative state – the apparatus that has, since the New Deal, allowed the executive to pass regulations that support our voting rights, clean air and water, workplace safety and more. But in the discussions one thing seems to have been missing: a major way that regulations are enforced in the United States is by individuals and groups bringing lawsuits. Congress has enabled these lawsuits by creating private rights of action in areas as diverse as employment discrimination and internet privacy.

    For the last thirty years, the Supreme Court has been eroding these regulations by creating barriers to suit: forced arbitration has been repeatedly upheld (even when it goes against state contract law), requirements for bringing a claim have increased and collective actions are harder to certify. If most of the enforcement of the law is left up to us, through the courts, the process of shutting the courthouse door also means that regulations will not be enforced. Now Congress is taking its turn to shut the courthouse door.

  • April 3, 2017
    Guest Post

    *This piece originally appeared on The Huffington Post.

    by Christopher Kang, ACS Board Member and National Director, National Council of Asian Pacific Americans

    The Senate Rules provide a 60-vote threshold for Supreme Court nominees to be confirmed, and it appears less and less likely that Neil Gorsuch will be able to meet that threshold. If he cannot, Senate Republicans will face a choice—and yes, it is their choice—as to whether they should unilaterally change the Senate Rules through the nuclear option, so that Supreme Court nominees can be confirmed with just a majority vote.

    Most of the arguments against the nuclear option have focused on institutional interests for both the Senate and the Supreme Court. Retaining the 60-vote threshold would preserve the unique nature of the Senate that encourages broader consensus and less extremism. There also is a concern—on both sides—that reducing the confirmation threshold to a simple majority could lead to more ideological Supreme Court Justices and a more polarized Court.

    Those are compelling reasons in themselves, but there also is a far more practical question that Republicans must consider: How will Senate Democrats respond to this historic power grab? If Democrats follow the Republican response in 2013, it will freeze the Senate for thousands of hours, preventing Republicans from advancing their agenda.

    In November 2013, Senate Democrats invoked the nuclear option to lower the confirmation threshold for lower court and executive branch nominees. In response, over the next 13 months, Republicans forced Democrats to file cloture on 154 nominees, and they forced 131 cloture votes.