Tag: inbrief

Trump Continues to Reshape Judiciary at Breakneck Speed

Update: At 10 a.m. ET on 2/7, the Senate Judiciary Committee will hold a "Monster Markup" on dozens of President Trump's judicial nominees, including his nominee for attorney general, William Barr. 

President Trump and the Senate majority are reshaping the federal courts by nominating extremely conservative judges and confirming them at a breakneck speed. The 115th Congress saw record-breaking movement on judicial nominations, and we expect more of the same in the 116th Congress. 

The Senate has confirmed a record number of President Trump’s judicial nominees 

Since 2017, the Senate has confirmed 85 judicial nominees, 30 of them to the U.S. Circuit Courts of Appeals. In the first two years of President Obama’s administration, only 62 judicial nominees were confirmed. These massive gains are the result of the Senate majority disregarding the Senate's “advice and consent” role, circumventing the usual vetting process for nominees.

Federal judges are lifetime appointments  

Once confirmed, judges in the federal courts sit for a lifetime. They rule on all areas of the law that impact people’s everyday lives:  civil rights, criminal justice, access to education, environment, labor, immigration, and many more. It is critical that nominees be qualified and impartial for the courts to fulfill their purpose as arbiters of the law. 

Many of the nominees confirmed by the 115th Congress caused concerns because of their writings. John Bush was confirmed to a Kentucky seat in the U.S. Court of Appeals for the Sixth Circuit, despite having anonymously blogged that Roe v. Wade is a stain on U.S. history. He also suggested that Speaker Pelosi should be bound and gagged. This is just one example. In addition to voicing concerning views, nine of the confirmed nominees received at least partially Not Qualified ratings from the American Bar Association. Only 8% of the confirmed judges are non-white and only 22% are women.  

Learn more about how the U.S. Circuit Courts of Appeals have transformed since 2017. 

What to expect for Trump’s judicial nominations in 2019 

This week, the White House announced the re-nomination of 48 of the 70 judicial nominees left pending at the end of the 115th Congress.  

Some of the most controversial nominees may not be re-nominated. Ryan Bounds’s (9th Cir., Or.) confirmation vote was canceled last Congress because of views on race expressed in college writings and Thomas Farr’s (E.D.N.C.) confirmation vote was canceled because of past work suppressing voters’ rights. However, the President did re-nominate Wendy Vitter (E.D. La.), who allegedly spread false medical information about the effects of abortions and birth control. 

Those re-nominated will be considered by the Senate Judiciary Committee, now under the leadership of Senator Lindsey Graham (R-S.C.), likely many of them in one big “monster markup” (a meeting of the committee where they vote on multiple nominees at once). Senate Democrats have asked for new hearings for the 9 nominees whose hearings were held during recess so that all members can have an opportunity to be present and ask questions of the nominees. The first judicial nominations hearing will likely be held in late January for Neomi Rao (D.C. Cir.) who was nominated to replace Justice Brett Kavanaugh.  

It is not yet clear whether Senator Graham will respect home-state Senators’ blue slips, a critical form of advice and consent, but we expect the majority and the White House to continue breaking norms in order to transform the courts. See what you can do here to help spread the word about the importance of these lifetime appointments to the federal judiciary. 

Senators Need Assurances from Barr

This article was reposted from USA Today.

For more information on the Barr nomination from ACS, visit our resource page. 

As William Barr's confirmation hearings for attorney general begin, the question on everyone's mind is: Will he protect the Mueller investigation?

What is a president to do when a federal criminal investigation is closing in around him? Put some friendly faces in charge. Out with Attorney General and Deputy Attorney General Jeff Sessions and Rod Rosenstein, in with Acting Attorney General Matthew Whitaker and attorney general nominee William Barr.

Sessions famously incurred President Donald Trump’s wrath because he wouldn’t shield him against charges that the Trump campaign conspired with Russian officials to sway the 2016 elections. Rosenstein, similarly, irked the president by steadfastly protecting special counsel Robert Mueller's investigation. Both men may have technically resigned, but it's the worst kept secret in Washington that their stands on the Russia investigation cost them their jobs.

Trump replaced Sessions with Whitaker as acting attorney general and nominated Barr to serve in the position full-time. Confirmation hearings begin Tuesday. Given the legal shroud hanging over this presidency — and the fate of those previously tasked with overseeing investigations into Trump’s conduct — it is vital that the Senate receive clear assurances from Barr that, if confirmed, he will remain independent of the president and allow the Mueller investigation to continue unimpeded.

Barr has in the past downplayed the allegations made against the president and his campaign. And even though the Trump has said several times that the Russia investigation influenced him when he fired the man originally overseeing it, James Comey, Barr has said that the president made the right call.

Barr has also shown himself to be no friend of special counsel appointees from years past. He is alleged to have undermined the special counsel investigating the Iran-Contra affair, urging then-President George H.W. Bush to pardon several figuresinvolved even as the investigation was progressing.

Trump and Barr are even said to have discussed the possibility of Barr serving as Trump's private defense attorney. That didn't happen, but it does provide a window into how useful Trump thought Barr might be with regard to the Russia investigation.

Trump is in legal jeopardy on many fronts. Several of his campaign cohorts are either in jail, have pleaded guilty or have been indicted. He is circling the wagons and obviously views the U.S. attorney general's office as a get-out-of-jail-free card.

During the confirmation hearings, senators must secure from Barr a commitment to let the Mueller investigation continue to its natural conclusion. They must seek answers from his testimony on several key issues (some of which Barr addressed in advance testimony released Monday):

  • How will Barr impartially oversee Robert Mueller’s work?
  • Will he commit to making Mueller's findings public?
  • Will he resign if Trump demands he fire Mueller?
  • Does Barr think presidential documents can be subpoenaed as the courts found in U.S. v. Nixon?
  • Can a sitting president be indicted?

The American people deserve an attorney general who will uphold the rule of law and put their interests first. Any failure by Barr to clearly address any of the questions above should disqualify him from serving as the highest law enforcement officer in the land.

U.S. District Judge's Health Care Ruling Demonstrates Why Courts Matter

Update: On March 25, the Trump Administration said it supports Judge O'Connor's ruling that the entire Affordable Care Act should be thrown out, signaling a shift in the Justice Department's position on the law's constitutionality.

It turns out people in America think having health insurance is a good thing. That sure has made it difficult for those who want to repeal President Obama’s signature law: the Affordable Care Act.

Most GOP members of Congress and the conservative establishment fought tooth and nail against the ACA’s passage, using virtually every trick in the book—and more than a few lies—to make their case. They failed.

After the ACA passed, the same parties challenged the law all the way up to the Supreme Court. They failed again…twice.

And once President Trump was elected, an all-out repeal effort was launched, only to crash and burn as the American public expressed outrage at the thought of 30 million Americans losing their health insurance.

So, opponents of the ACA had to get creative.

Step number one? Repeal the tax penalty portion of ACA’s individual mandate, the law’s requirement that people have to have insurance. The Supreme Court had previously ruled the mandate constitutional, ruling it a “tax” levied by a Congress acting well within its taxation powers. But just as Congress could enact such a tax, so too could it repeal it. And though the provision was critical to the functioning of the law, it was also less popular, meaning its repeal came with none of the bad PR and public backlash associated with full ACA repeal.

Step two? Launch yet another court challenge to the ACA. With the tax penalty repealed, ACA opponents could now make the argument that the mandate no longer fell within Congress’ powers of taxation and was thus unconstitutional. A highly flawed legal argument to be sure, but not one that conservatives obsessed with the law's repeal would refrain from making. They’d just need the right audience.

Which leads us to step three: Find a sympathetic conservative judge hostile to the ACA. Enter U.S. District Judge Reed O’Connor, an appointee of President George W. Bush with a reputation for issuing nationwide injunctions against progressive policies, who was only too happy to issue such a ruling.

Learn more about how President Trump and Senate allies are pushing the judiciary further to the right.

Judge O’Connor ruled as ACA opponents long-wished. He declared the mandate---and subsequently the entire law—unconstitutional. But, the tortured reasoning behind his ruling has been widely criticized by experts from all ends of the political spectrum. To strike down the entire law, O’Connor had to determine that, without the mandate, the rest of the law too must fall, that the mandate was not “severable” in legal parlance. But generally, in cases like this, a court only invalidates the part of a law that violates the Constitution and leaves the rest as is. To reach his conclusion, Judge O’Connor had to determine, on his own, that Congress intended the law to be invalid if this one provision—the individual mandate—was invalid, a preposterous notion requiring a truly warped reading of the congressional record coupled with a hefty dose of arrogant judicial activism.

But that’s exactly what the ACA’s opponents wanted when they sought to bring this case before Judge O’Connor. Because they know what the progressive community too often forgets: judges matter.

View ACS’s resources on judicial nominations at acslaw.org/judicial-nominations

The entire nation turns its attention to the judiciary when there is a vacancy on the Supreme Court. Nominees to the circuit courts rarely draw attention; controversial District Court judges like O’Connor even less so. But these are the judges that are making decisions every day that affect the rights and freedoms of millions. Judge O’Connor’s ruling has cast a cloud of confusion over this nation’s health care system.

Since President Trump took office, the GOP Congress has been racing at breakneck speed to jam conservative judges on the courts. And not just the Supreme Court. Circuit courts and District Courts like O’Connor’s too. It’s a concerted years-long effort to use the courts to accomplish judicially that which they have been unable to accomplish legislatively. In this case, it was repeal of the ACA; what’s next?

Judge O’Connor’s ruling may have been legally flawed. It may even be overturned on appeal. But it was not an outlier. It was the culmination of an ongoing strategy to use the judiciary as a tool for reshaping our society in the conservative mold. And until the progressive community realizes that judges do indeed matter—and starts voting accordingly—we can only expect more of the same.

 

Progressive Lawyers and Law Students Have a Responsibility to Challenge the Trump Administration's Anti-Immigrant Policies

Immigrants’ rights are under attack, and both law students and attorneys have a special responsibility to fight against injustice wherever it exists.

A record high amount of 14,000 migrant children are in U.S. custody. Reunifications of children and caregivers who were separated during President Trump’s zero tolerance policy have been slow and disorganized, at best. Immigrations and Customs Enforcement (ICE) has even resorted to arresting parents or caregivers trying to reunite with children in custody. The border between the United States and Mexico is becoming increasingly militarized. The Trump Administration’s proposed changes to the definition of “public charge” would cause serious harm to immigrant communities in the United States and would severely restrict immigration options for low-income people. But as law students and attorneys, there are things we can do to help.

Before taking Immigration Law with Professor Geoffrey Hoffman at the University of Houston Law Center, I knew better than to call people “illegal.” As a Teach for America Corps Member, I taught at a high school with a student population that was approximately 85% Hispanic or Latino, and I taught many students with undocumented status. I knew that my former students with undocumented status felt marginalized when people referred to them as “illegal,” in spite of the fact that many of them had lived in the United States for most of their lives. Accordingly, I use the term “person with undocumented status.” However, I did not know before taking Immigration Law that calling someone “illegal” is also misleading and inaccurate.

In politically charged conversations about immigration, one of the main talking points is often that immigrants with undocumented status are “illegal immigrants” or “illegal aliens.” People say things like, “Are they or are they not illegal?” Aside from the obvious objections that a person cannot be “illegal” and that such an oversimplification is ostracizing to those with undocumented status, questions about a particular person’s status deserve and require nuanced, complex responses because immigration is one of the most complex areas of law. For example, even if a nonimmigrant has overstayed his or her visa, he or she may be eligible for relief from removal by applying for adjustment of status. If an immigrant enters the United States without inspection or documentation, he or she may be eligible for relief from removal as a crime victim, through asylum, or under the Convention Against Torture. As the Court of Appeals for the Third Circuit recognized in Lozano v. City of Hazelton, any one particular individual’s immigration status at a particular point in time is merely a “snapshot.”  Therefore, referring to someone’s present status as undocumented is much more accurate than referring to someone as an “illegal immigrant.”

Politicians use misleading language like “illegal immigrant” to frame debates about immigration through the oversimplified dichotomy of “illegal” versus legal, which allows them to push xenophobic and racist policies like President Trump’s travel ban or proposed border wall. These same politicians use the term “illegal immigrant” as a proxy for race. The caricature of the “illegal immigrant” as job-stealer and criminal becomes easier to believe and understand than the complex world of immigration law in which examining any one person’s immigration status at a particular moment in time is only a “snapshot.”[1]

However, we can change this. Because the area of immigrants’ rights is one of the most important civil rights battles of our time, all attorneys and law students have a duty to educate themselves on the basics of immigration law in order to elevate the conversation about immigration policies. For example, prior to my immigration class, I did not know that, in addition to whether a person is deportable or not, there is also the question of whether a person is inadmissible. Proceedings to send someone out of the United States are called removability proceedings, and the reason for your removability which is charged in the Notice to Appear (the charging instrument for removal proceedings) is extremely important and affects which opportunities are available to a person for relief.

Further, all progressive attorneys need to make a commitment to helping with the hundreds of thousands of cases every year in which a noncitizen needs legal counsel in immigration court. Immigration proceedings are civil, so there is no right to an attorney in immigration court, but access to counsel improves efficiency and fairness in removal proceedings. There is even evidence that counsel in immigration court may save the government money because it results in less detentions for those who are not a flight risk or a danger to their communities, which saves the government tax dollars used on detention.

Many attorneys and law students want to know what they can do to fight back against the xenophobic, racist, nationalist rhetoric used by the Trump administration. This is one thing we can do. Sadly, the need for attorneys who are willing to learn about immigration law and take a pro bono immigration case far outpaces their availability.  If you are an attorney, take a pro bono immigration case. If you do not have immigration experience, seek out an immigration mentor to help guide you. If you are a law student, take an immigration law class and participate in an immigration clinic. Volunteer with a public interest organization that handles immigration cases. Immigration is a highly specialized area of law, but it is learnable. Attorneys and law students have a particular responsibility to fight back against the Trump administration’s attempts to normalize anti-immigrant policies and beliefs, and the act of learning about immigration law is an act of resistance in and of itself in this political climate.

[1] Lozano v. City of Hazleton, 724 F.3d 297, 317 (3d Cir. 2013).

Brazen Effort to Curtail Wisconsin Attorney General’s Power Is Unconstitutional

UPDATE: Two judges have blocked parts of the legislation passed during the lame-duck session.

Jeffrey Mandell and Craig Mastantuono are leaders of ACS lawyer chapters in Wisconsin. Jeff is the President of the ACS Madison Lawyer Chapter and Craig is the Chair of the ACS Milwaukee Lawyer Chapter. Jeffrey is a partner at Stafford Rosenbaum LLP in Madison. Craig is the managing partner of Mastantuono & Coffee in Milwaukee. 

The rule of law is under attack in Wisconsin. Republican lawmakers in the state legislature have pushed and are passing several bills to curtail the powers of Governor-elect Tony Evers and new Attorney General Josh Kaul.

These proposals undermine cherished, foundational principles of democracy and separation of powers. And there are so many different proposals in these bills that it can be difficult to focus on how radical individual components truly are.

The American Constitution Society was founded, in the wake of the U.S. Supreme Court’s Bush v. Gore decision, to stand up in moments like these, to defend the rule of law. And because we are an organization of lawyers, we organized a press conference to highlight the unprecedented efforts to privatize the vital functions of the attorney general’s office. That doesn’t mean we’re unconcerned with the attacks on the governor’s office as well. But we cannot allow these sweeping changes to the Attorney General’s function, and to the rule of law in Wisconsin, to go unchallenged.

At the press conference quickly organized by the ACS Madison and Milwaukee Lawyer Chapters while the legislation was being debated across the street at the State Capitol, Jim Doyle, who served for 12 years as Wisconsin’s Attorney General and 8 years as Wisconsin’s Governor, described the current legislative proposals as “quite unprecedented” and slammed them as “unconstitutional violations of separation of powers.” Doyle hammered home that representing the State in litigation is an executive, rather than legislative function:

"It’s not the Legislature or the Joint Finance Committee that goes into court to represent the state of Wisconsin. It is the Attorney General."

Contrary to that fundamental principle, the legislation the lawmakers are proposing would, among other things:

  • eliminate the principle that the Attorney General represents the State in litigation, expressly authorizing legislative leadership to instead hire private lawyers (using public funds) and take over the State's role in the litigation; in such instances, the decision by legislative actors would strip the AG of authority to represent the State, transferring the AG’s powers and responsibilities to the private lawyers.
  • subject decisions by the AG to end litigation involving the State to legislative preapproval and moves funds from litigation settlements or victories to the Legislature’s general fund.
  • authorize the Assembly speaker or Senate majority leader to hire private lawyers (using public funds) in any case where a legislator or legislative staffer needs legal representation.

These proposals are incompatible with the Attorney General’s role as Wisconsin’s Chief Legal Officer. They seek to divest the Attorney General of his authority in that position and instead hand that power to private lawyers, who do not answer to the public, even as they are paid with public funds.

As Professor Don Moynihan, former Dean of the LaFollete School of Public Affairs, wrote in yesterday’s Washington Post:

"Why even have the position of attorney general if they are allowed to practice law only when a Republican holds the position?"

In Madison yesterday, Governor Doyle was the perfect person to speak out, having taken over both the Attorney General’s and Governor’s offices from predecessors of the opposing party. He described how each predecessor graciously worked with him to ensure smooth transition of government for the people of Wisconsin. Moreover, he highlighted concerns, among many, about the Attorney General’s practical ability to evaluate cases and participate in multi-state lawsuits if this authority is taken by the legislature and farmed out to an unelected attorney acting on behalf of the legislature. Additional separation of power issues are obvious and myriad in nature – this crisis is indeed constitutional.

The Madison and Milwaukee lawyer chapters of ACS are adding our collective voices to those raised all over Wisconsin saying that this is an affront to our democratic system of governance and to the people of Wisconsin.

 

The Ghost of Justice Scalia’s Dissent Has Returned

Yesterday Senator Mike Lee took to the floor of the U.S. Senate to object to bipartisan legislation designed to support the rule of law by ensuring that President Trump not fire Special Counsel Mueller without “good cause”.  Senator Lee’s objection wasn’t based on Supreme Court precedent.  In fact, just the opposite. Senator Lee objected to the legislation based upon a dissent by the late Justice Scalia– a dissent that no other justice joined.

Justice Scalia’s dissent in the 1988 case of Morrison v Olson has taken on mythical powers in some circles where it has been accorded stare decisis value, despite the fact that its holding has never been accepted by the Supreme Court.  This perversion of constitutional law is astounding and has the convenient effect of ignoring the Court’s actual holding in Morrison, that the Independent Counsel Act, a forerunner of the regulations governing the current Special Counsel, was constitutional.

In June ACS published an Issue Brief by Georgetown Law Professor Victoria Nourse explaining why the Supreme Court’s decision in Morrison v Olson, remains good law, and why Justice Scalia’s dissent is wrong as a matter of constitutional law.  At a time when the ghost of Justice Scalia’s Morrison dissent is returning to justify subversion of the rule of law, it is time to revisit Professor Nourse’s writing and recommit to supporting the rule of law.