ACSBlog

  • March 31, 2017

    by Caroline Fredrickson

    Next week, Senators will vote on Trump’s most enduring legacy as president. Lawmakers will vote up or down on Judge Neil Gorsuch, the president’s nominee to be associate justice of the Supreme Court. 

    To fulfill their advice and consent duties, members of the Senate Judiciary Committee held a four-day confirmation hearing to question Gorsuch, including his 10-year record of 2,700 appeals on the 10th Circuit Court of Appeals in Denver. As a witness, the nominee shared center stage with the looming presences of Chief Judge Merrick Garland and Trump. Sen. Patrick Leahy’s (D-Vt.) opening statement put the three competing interests in perspective:

    The Judiciary Committee once stood against a court-packing scheme that would have eroded judicial independence. That was a proud moment. Now, Republicans on this Committee are guilty of their own “court un-packing scheme.” The blockade of Chief Judge Merrick Garland was never grounded in principle or precedent.

    While Senate Republicans were meeting in back rooms to block President Obama’s nominee, extreme special interest groups were also meeting in private – to vet potential Supreme Court nominee for then-candidate Donald Trump. I do not know of any other Supreme Court nominee who was selected by interest groups, rather than by a president in consultation with the Senate, as required by the Constitution.

  • March 31, 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

    Last week, the Washington Post recommended that Democrats should make a deal on Gorsuch by not filibustering his nomination and instead preserving the 60-vote threshold for a future nominee. Yesterday, reports surfaced about efforts to find a last-ditch deal.

    Here are five reasons that a deal does not make sense for Democrats.

    First, Judge Gorsuch’s record. I agree with the Washington Post that “the national interest requires that Democrats judge Mr. Gorsuch ‘on the merits.’” Republicans and Democrats agree that, on the merits, Judge Gorsuch’s record demonstrates that he is a judge in the mold of former Justice Scalia. As Justice Scalia once noted about his own confirmation, “I was known as a conservative then, but I was perceived to be an honest person. I couldn’t get 60 votes today.” The same could be said of Judge Gorsuch.

    In fact, academic studies predict that Judge Gorsuch would be even more conservative than Justice Scalia. According to one study, if confirmed, Judge Gorsuch “might be the most conservative justice on the Supreme Court.” Another forecast that Judge Gorsuch would be the most conservative other than Justice Thomas—and that he is one of the most conservative among the candidates hand-selected by the ideologically-driven Federalist Society and Heritage Foundation. A third report looked at campaign contributions before becoming a judge and estimated that Judge Gorsuch is more conservative than 87% of all other federal judges.

    Given Judge Gorsuch’s judicial ideology and record, if Democrats do not insist on a 60-vote threshold now, then when would they?

  • March 31, 2017
    Guest Post

    by Dan Karon, Karon LLC

    A German auto manufacturer lies about its cars’ emissions and swindles billions. Too bad. An energy company cooks the books and steals millions of people’s retirement money. So sad. A chemical company dumps toxic waste into a river and kills thousands of children downstream. Pound sand.

    If Congress passes H.R. 985—the Fairness in Class Action Litigation Act—these horrifying scenarios will be just the beginning. The bill reads like a Chamber of Commerce wish list because it is. It will kill all class actions and will sacrifice the valuable, necessary and commendable work that consumer attorneys have performed for decades. It will gut human-rights cases, eviscerate employment-abuse cases and kill defective-drug and products cases. Its carnage is too expansive to list here. The bill will leave nothing but an unpoliced wasteland, where unaccountable corporations will exploit their new world order, knowing that no one can stop them.

    If this all sounds too horrible to be real, I am sorry—it is. Despite all the scares that the class-action bar has agonized through, this congressional blow not only will crush people’s right to justice, but also will decimate plaintiffs’ and defense firms overnight. If you think I am kidding, read the bill.

    How did we get here? Simple. Bad plaintiffs’ lawyers brought too many bad cases. But these sewer lawyers neither resemble nor represent the plaintiffs’ bar—lawyers who risk comfort, safety, and security every day by committing to a contingent-fee model, where the upside of bygone days no longer exists. We do this because it is important, because we care, and because we want to make a difference. These motivations may seem silly or unimaginable to lawyers who have never done this type of work, who have never risked their practice, and who favor getting paid per hour to getting paid perhaps. Plaintiffs’ work is not for everybody.

  • March 30, 2017
    Guest Post

    *This piece originally appeared on The Huffington Post

    by Christopher Kang, National Director, National Council of Asian Pacific Americans

    Many Senate Democrats believe that a Supreme Court nominee should be within the mainstream and therefore able to earn the support of 60 Senators. Given the stakes, this hardly seems unreasonable, but Republicans now claim that a 60-vote threshold for judicial nominees would be unfair. Here are the 12 times they insisted on a 60-vote threshold for Obama’s lower court nominees—and, really, once Republicans demanded that a trial court judge in Rhode Island needed 60 votes, shouldn’t Democrats be able to ask for the same for the highest court in the land?

    • Senate Republicans filibustered D.C. Circuit nominee Caitlin Halligan (twice) and 9th Circuit nominee Goodwin Liu, even though both had majority support.
       
    • Senate Republicans filibustered 10th Circuit nominee Robert Bacharach of Oklahoma, even though he was supported by both of his Republican home-state Senators, Inhofe and Coburn. His nomination was not controversial (as evidenced by his 93-0 confirmation eight months later) but Republicans set an arbitrary cut-off date for confirmations during the 2012 presidential election year—similar to their historic mistreatment of Judge Merrick Garland’s nomination to the Supreme Court last year.
       
  • March 29, 2017
    Guest Post

    by Adam Kenworthy, Chapter Chair of ACS Iowa Lawyer Chapter

    It is easy to get distracted right now by the overwhelming pace of the news cycle. And as attorneys and ACS leaders, it is hard to figure out exactly where to focus one’s attention at any given time. However, it is important for all of us who are committed to serving the larger principles of our system not to underestimate where we are at this pivotal moment, and how tenuous our system really is. And as attorneys, we need to recognize our role as advocates and strategists, and how these roles can help to provide balance and expertise where it is needed most.

    This past week Judge Gorsuch’s confirmation hearings began--among other things--and groups like ACS tried to help draw attention to this process. Many respected attorneys and scholars have put forth sound arguments why Judge Gorsuch’s positions are too extreme for the Court and why he should not be confirmed. But the real issue that needs to be addressed is the corruption of the process itself.  

    Last year when Senate Republicans refused to hold confirmation hearings for Merrick Garland, based on their reasoning that the Constitution should apply differently to President Obama, a line was crossed that cannot be redrawn. Senate Republicans believed they had to burn down the institution in order to save it--at least to preserve it for their own short-term political calculation. And in making that determination, the first time in American history, the party of supposed conservative originalists, decided to abandon text and tradition in order to meet their short-term political goals.

    The tactic worked, but at what cost?