Press Release: AFJ Calls on Chief Justice Roberts to Address Ethics Issues in His Annual State of the Judiciary Report

AFJ Calls on Chief Justice Roberts to Address Ethics Issues
in His Annual State of the Judiciary Report

Washington, D.C., December 22, 2011—Alliance for Justice President Nan Aron today issued the following open letter to Chief Justice John Roberts in advance of the release of his annual Year-End Report on the Federal Judiciary:

Dear Mr. Chief Justice:

With the time fast approaching for your annual Year-End Report on the Federal Judiciary, I am writing on behalf of Alliance for Justice to respectfully urge you to take advantage of this important opportunity to address questions that have arisen about the ethical standards governing the Supreme Court. We, among many others, are growing increasingly concerned that the recent decline in public approval of the Court is due in part not only to the well-publicized and ethically questionable actions of some justices, but also to the lack of clear and unequivocal precepts governing justices’ behavior.

As you know, all other federal jurists are subject to the Code of Conduct for United States Judges, yet the Supreme Court, our nation’s most important legal institution, is currently exempt. We understand that several justices and Court spokespeople have made public statements that the Code is used as guidance and that justices voluntarily follow its rules, but the recent record demonstrates that either that is not true for all justices or there is a lack of understanding of what the Code requires.  For example, Justices Antonin Scalia and Clarence Thomas recently attended a fundraising dinner at which they were the honored guests and main speakers, and allowed their names and images to be used to publicize the event. All of these activities are prohibited by Canon 4C of the Code, which states that “a judge should not personally participate in fund-raising activities,” and which goes on to specify in commentary that a judge “may not be a speaker, a guest of honor, or featured on the program” of a fundraiser.

Incidents like this one demonstrate the need for clarity and certainty about the ethical standards which bind the Court. The nation can ill-afford to allow ethical uncertainties to cloud public perceptions of the Court, its justices, and, the decisions they make. The simplest, most direct approach is for the Court itself to make an explicit public declaration that the Code of Conduct governs justices’ behavior and to formally adopt it as the Court’s own rule.

We urge you to take the occasion of your 2011 Year-End Report to restate the Court’s obligation to maintain the highest ethical standards and to make a commitment to beginning the process of finally and officially adopting the Code of Conduct.

Sincerely,

Nan Aron
President, Alliance for Justice

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Alliance for Justice has prepared a background report on the Federalist Society fundraising dinner of November 10, 2011, at which Justices Antonin Scalia and Clarence Thomas were the guests of honor, and which has the hallmarks of an activity that is prohibited by the Code of Conduct for United States Judges. It is available online at: www.afj.org/FederalistFundraiser.

In addition, extensive background materials on Supreme Court ethics rules and current controversies are available for download at www.aquestionofintegrity.org. The issue is also discussed in AFJ’s new short documentary film, A Question of Integrity: Politics, Ethics, and the Supreme Court, which can be viewed online.

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We need your support in the fight for a fair America

As the year comes to an end and Congress leaves Washington, we find ourselves dealing with the mess left behind by the three-year campaign to delay final confirmation votes on President Barack Obama’s nominees to the federal courts.

The Senate session ended with 21 nominees waiting for final action on the Senate floor, in spite of the fact that virtually all of them faced no significant opposition. Those nominees spent an average of almost 200 days working their way through the glacially slow Senate confirmation process.

We all recognize the challenges we face in filling the federal judiciary's 100 vacancies, and we know that we need to be even more active in 2012.

Now we need your help. A special tax-deductible contribution of $25, $50, or $100 before the end of the year will help Alliance for Justice ensure that we have the resources to pressure the White House and Senate to nominate and confirm fair, qualified and independent judges.

AFJ is tirelessly working toward a judiciary that will protect the rights of all Americans, not just the privileged few. We will lead the fight against obstructionism by the Senate minority and the breakdown of the judicial confirmation process. The dangerous delays and partisan games are harming the everyday Americans who rely on fair judges and efficient courtrooms to protect all of our rights.

With high-profile court cases looming in 2012 and a heated election year warming up, America needs a fair, functioning, and fully-staffed judiciary more than ever. We’re pushing the Senate to move past the politics and partisan games, but we can’t do it alone.

We can’t afford to stop fighting now. Your support can help us get ready for the next round. Please support the fight for a fair America by making a donation to Alliance for Justice!

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Outrageous: Senate leaves all 21 nominees high and dry

** UPDATE: THIS ALERT IS NO LONGER ACTIVE ** 

Thanks to AFJ members, more than 33,000 messages were sent to Capitol Hill asking that the Senate hold final confirmation votes on the 21 judicial nominees who have been cleared by the Judiciary Committee. These urgently needed and well-qualified nominees are ready to serve in some of this nation's most overworked courtrooms, if only the Senate would schedule a simple yes-or-no vote.

But the Senate left town without finishing its business. According to The Hill newspaper, here's what happened over the weekend:

"Senate Republican Leader Mitch McConnell (R-Ky.) on Saturday afternoon blocked more than 50 judicial and executive branch nominees, demanding assurances that President Obama not make recess appointments during Christmas break... Republicans are wary of Obama appointing a director to the new agency tasked with implementing Wall Street reform during the congressional recess."

With America's judicial vacancy crisis growing worse by the day, Senator McConnell blocked votes in order to protect the big corporations that caused our economic crisis.

Here's what we're going to do about it. Remember those 33,000 emails that have already been sent to Capitol Hill?

We want Senator McConnell to get just as many emails from everyday Americans who are fed up with the games, fed up with the gridlock, and fed up with McConnell's willingness to use our judicial system as a hostage in his political schemes. Let's all remind Senator McConnell that fair and functioning courts are vital to a healthy democracy.

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Press Release: U.S. Senate Takes Holiday Break, Leaving a Lump of Coal in the Stocking of America's Federal Courts

U.S. Senate Takes Holiday Break, Leaving a Lump of Coal
in the Stocking of America's Federal Courts

Washington, D.C., December 20, 2011—Once again, the United States Senate has left town for a holiday without fulfilling its obligation to fully staff the federal courts and ensure that justice is available to all Americans. With 100 judicial vacancies in the federal court system, Senate Republicans continued their widely condemned tactics of obstruction and endless delay, and prevented final consideration of 21 nominees who have been cleared by the Senate Judiciary Committee, in most cases with no opposition, and who simply need a final yes-or-no vote to take their seats on the seriously understaffed federal bench.

Sadly, 2011 will end in the same way it began, with one in nine federal judgeships unfilled and Republican promises to restore the nominations process to fairness and rationality in tatters. When the Senate returns in January it will find 37 of the President’s nominees in the nominations pipeline, either in committee or on the floor, and it will have an opportunity to both restore faith in the constitutional nominations process and to bring the woefully understaffed federal courts back to health.

Alliance for Justice President Nan Aron called on the Senate to mend its ways in the coming year, saying, “All Americans should be saddened, if not infuriated, by the endless political games being played with our federal court system. There seems to be no limit to the depths to which Republican senators will sink to appease their most extreme constituencies. Deals for action are cut by the leadership and then broken under pressure from hyper-partisan ideologues. The president’s nominees, all distinguished, highly qualified men and women, are treated with disrespect and stuck in legislative limbo for months on end. The courts are left without enough judges to do their work. Senate traditions are trashed. National polls showing support for Congress at record lows prove that the American people are tired of this kind of gridlock and gamesmanship. Obviously, we have run out of time for action this year, but for the sake of the nation, 2012 must tell a different story. Starting in January, willful obstruction must end and the confirmation process must be allowed to proceed in a rational and constructive way.”

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New Report Again Undercuts Arguments for "Tort Reform"

Yesterday, Americans for Insurance Reform released an important report on the insurance industry entitled “Repeat Offenders: How the Insurance Industry Manufactures Crises and Harms America.”  The lengthy report, based on a study of permissive regulatory environments, decades of industry financial data, and candid quotations from industry and public officials, offers another strong refutation of "tort reform" talking points by shedding much-needed light on the true reasons for the rise and fall of insurance rates.

Industry lobbyists rarely fail to blame liability insurance “crises” for periodic premium rate increases, and almost invariably proceed to lobby Congress and state legislatures to enact “tort reform” measures, which would make it more difficult for everyday Americans to obtain compensation when injured.  This new report convincingly refutes that argument, and instead demonstrates that the particularities of the insurance industry and the lax regulatory environment contribute to this cycle of “hard” and “soft” insurance markets.

As the report lays out in great detail, the property/casualty insurance industry does not generally make its profits as one might expect – from charging more in premiums than it pays out in compensation.  Rather, profits stem largely from using the money paid in premiums and investing it in securities.  Indeed, insurance companies almost always pay out more in compensation than they take in through premiums, because they can make up the difference in the interim through investment.  Profit is made, therefore, primarily by getting more premium dollars to invest.  For this reason, during “soft” market periods, which are typical, insurance companies compete heavily for premiums to invest, often comparatively underpricing policies to obtain money to invest.

But when a “hard” market arrives, when investments underperform, or when price competition on premium rates cuts into investment profits, insurance companies point not to their own mismanagement, but to the lack of “tort reform” as the core problem.  Insurance companies, who are statutorily exempt from federal antitrust laws, then collude in hiking prices and cutting coverage, and can point to their “underwriting losses” to impel legislative action.

This report comes at a time when the insurance market is poised to enter a “hard” phase, and we can expect insurance companies to press for laws that restrict consumer rights.  It is important to be ready to answer these spurious claims, and Americans for Insurance Reform has done the public a great service in issuing this report.

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Senate Confirms Christen to the Ninth Circuit

Yesterday afternoon the Senate confirmed Morgan Christen to the United States Ninth Circuit Court of Appeals by a bipartisan vote of 95-3, with only Senators Jim DeMint, Rand Paul, and David Vitter voting no. Once sworn in, Christen will be the first Alaksan woman to serve on the Ninth Circuit.

President Obama nominated Christen to the seat on May 18, 2011; on September 8 she was reported out of the Senate Judiciary Committee by a unanimous voice vote. From the date of her nomination, Christen waited 212 days to be confirmed to the seat, which has been labeled a judicial emergency by the Administrative Office of the U.S. Courts.

The Senate’s action leaves 21 other judicial nominees waiting on the floor for their confirmation votes, 19 of whom were reported out of committee either unanimously or with strong bipartisan support.

For the most accurate, up-to-date information on the judicial selection process, visit AFJ's Judicial Selection page.

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Senate Judiciary Committee Hearing for Ninth Circuit Nominee

The Senate Judiciary Committee held a confirmation hearing for Paul Watford to the United States Circuit Court for the Ninth Circuit.  Senator Whitehouse (D-RI) chaired the hearing, opening the proceedings by noting the numerous judicial vacancies in the Ninth Circuit and quoting a recent letter from the circuit’s Chief Judge Alex Kozinski who said, “[W]e fear that the public will suffer unless our vacancies are filled very promptly.”  Also attending the hearing were Senator Feinstein (D-CA), who introduced the nominee, and Senator Grassley (R-IA), the ranking Republican member.  Senator Whitehouse remarked at its conclusion that the hearing was notably uneventful.

Watford was nominated to the seat on October 17, 2011.  If confirmed, he will be the fourth African American to serve on the Ninth Circuit, and just one of two active African American judges on the 29-member court.  There are five vacancies on the Court of Appeals for the Ninth Circuit—four current vacancies, all of them deemed judicial emergencies by the Administrative Office of the U.S. Courts—and one future vacancy.  For the most accurate, up-to-date information on the judicial selection process, visit the Alliance for Justice’s Judicial Selection page.

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Supreme Court Grants Cert in Case Challenging Arizona Immigration Law

Yesterday the Supreme Court agreed to hear the case of Arizona v. United States, in which the validity of Arizona’s draconian immigration law is at issue.

Last year, Arizona passed S.B. 1070, a law designed to make it all but impossible for illegal immigrants to live or work in the state. A number of states have since passed copycat laws, in response to what they view as the federal government’s inadequate efforts to control illegal immigration. Most notoriously, Alabama has passed a law with such far-reaching consequences that even the state attorney general has called for revisions.

In this suit, the United States has sought to enjoin enforcement of Arizona’s law as preempted under the Supremacy Clause of the Constitution. In particular, the U.S. has challenged four provisions of the law as incompatible with federal immigration laws and policies. The challenged provisions (1) require that state police ascertain the immigration status of any individual they stop or arrest if they have reasonable suspicion to believe that the person is here illegally (additionally, the person, once arrested, cannot be released until the federal government verifies his or her legal status); (2) make it a violation of law for a person to fail to obtain and carry legal immigrant papers; (3) make it a misdemeanor for unlawful aliens to work or to try to work; and (4) authorize warrantless arrests for individuals who the state police have probable cause to believe has committed any act anywhere that would make them deportable under federal law.

While Arizona maintains that its law falls under the “cooperative” state and local efforts authorized by the Immigration and Naturalization Act (“INA”), the U.S. argues that the Arizona law is clearly meant to supplant federal law and policy, not cooperate with it. Indeed, in Arizona Governor Jan Brewer’s signing statement, she specifically noted the federal government’s “misguided policy” on immigration enforcement.

The district court granted an injunction blocking the enforcement of all four provisions of Arizona’s law, and the Court of Appeals for the Ninth Circuit affirmed. Arizona has now appealed to the Supreme Court.

The U.S. urged the Court to reject the case for review as premature until other courts of appeal have had an opportunity to consider other similar state laws. For example, legal challenges have been raised to provisions of Alabama’s parallel law. Yesterday, a federal district court enjoined enforcement of a provision of that law, known as H.B. 56, which criminalizes “business transactions” between state officials and people who cannot prove lawful immigration status. As in Arizona v. United States, the district court’s ruling in that case was based on the plaintiffs’ likelihood of success on their claims of preemption. Undoubtedly, Alabama will appeal that injunction to the Court of Appeals for the Eleventh Circuit, but because the Alabama and Arizona state laws differ in their specifics, the Supreme Court’s ruling in the Arizona case is likely not to resolve the issues in the Alabama case. Nonetheless, the Supreme Court has chosen to weigh in on yet another controversial and political topic in an election year.

If the Supreme Court sides with Arizona, not only will it disrupt the federal government’s ability to maintain a uniform and effective federal immigration policy, but potentially millions of hard-working, law-abiding immigrant families with American children will be forced to live in the shadows, or be driven from the states where they have made valuable contributions to the community and the economy.

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Corporate Court Grants Cert in Overtime Pay Case

On November 28, the Corporate Court granted cert in the case of Christopher v. SmithKline Beecham Corp. At stake in this case is the ability of employees to get time-and-a-half pay for overtime work, as guaranteed under federal law.

This case arose from a dispute between Michael Shane Christopher and his employer, SmithKline Beecham, a drug company. As a “pharmaceutical representative,” Christopher’s work consisted mainly of visiting doctors’ offices and encouraging doctors to prescribe appropriate SmithKline drugs to patients. He sometimes worked more than 40 hours per week, but did not receive time-and-a-half pay for his overtime work. He and another plaintiff sued on behalf of themselves and a class of all other similar employees working for SmithKline for time-and-a-half pay, which is generally guaranteed to workers under the federal Fair Labor Standards Act (FLSA).

SmithKline claims that Christopher is not entitled to overtime pay because he is an “outside salesman,” and thus falls into one of several narrowly-drawn classes of employees exempted from the FLSA’s overtime pay requirement. Christopher argues that he should not be categorized as an outside salesman because he does not actually sell anything.

Through the FLSA, Congress delegated to the Secretary of Labor the authority to define terms such as “outside salesman.” The Secretary of Labor has issued regulations providing that an “outside salesman” must in some sense make sales. According to the secretary, who filed an amicus brief in this and a related case, these regulations do not exempt drug companies from paying pharmaceutical representatives like Christopher overtime.

It is a well-established principle of federal law that courts generally defer to agencies’ interpretations of statutes and of their own regulations. However, in this case, the Ninth Circuit Court of Appeals agreed with SmithKline that the secretary’s interpretation deserved no deference because the secretary merely “parroted” federal law in writing the regulations. As a result, the Ninth Circuit substituted its judgment for the judgment of the agency, and decided that Christopher was in fact an outside salesman who did not merit overtime pay.

Although this case raises the technical question of the degree of deference a reviewing court should give to agency interpretations of its own regulations, it is important to remember the core dispute at issue in this case. Christopher worked longer hours than a full-time employee is expected to work.  Federal law demands that such workers receive overtime pay, unless they fall into specific, narrowly drawn categories.  Congress delegated the authority to define the boundaries of these categories to the Secretary of Labor, who has determined that employees in Christopher’s position should receive overtime pay.

If the Supreme Court sides with the drug companies, it will not only constitute an earthquake in administrative law, it would also deny overtime to roughly 90,000 drug company employees in Christopher’s situation.

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Press Release: AFJ Condemns Senate Failure to Confirm Caitlin Halligan

Washington, D.C., December 6, 2011—Alliance for Justice President Nan Aron issued the following statement on the failure to end the Republican filibuster of the nomination of Caitlin Halligan to a seat on the U.S. Court of Appeals for the D.C. Circuit:

Today’s vote by Republicans to filibuster the nomination of Caitlin Halligan has shattered any pretense that the judicial confirmation process is being conducted in a rational or honest manner. Ms. Halligan’s record of achievement in public service and private practice is impeccable and there is no conceivable justification for denying her a final vote. The notion advanced by her opponents that she is somehow out of the mainstream of legal thought or holds extreme views is ludicrous and reflects a breathtaking level of dishonesty and hypocrisy. Today’s vote, combined with a three-year record of unrelenting obstruction, demonstrates that Senate Republicans have abandoned fairness and responsibility and are forcing the woefully understaffed federal judiciary to pay the price for their increasingly shrill and destructive partisan games. It is clear beyond any doubt that the 2005 agreement forbidding filibusters except under “extraordinary circumstances” is now dead and that Republicans have broken their promise to the American people to deal with judicial nominations in a fair and principled way. Today’s vote is a tragedy for the country, for the judiciary, for Senate tradition, and for Caitlin Halligan, who has been unjustly denied an opportunity to serve our nation.

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For the most accurate, up-to-date information on the judicial selection process, visit the Alliance for Justice’s Judicial Selection page.

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Senate Confirms Four Nominees to District Court Seats

Last night, the Senate confirmed the following to be United States District Court judges: Edgardo Ramos in the Southern District of New York; Andrew L. Carter, Jr. in the Southern District of New York; James Rodney Gilstrap in the Eastern District of Texas; and Dana L. Christensen in the District of Montana.

Judge Ramos was confirmed by a bipartisan vote of 89-0. The other three judges were confirmed by unanimous voice vote.

It has taken an average of 205 days for the four nominees to move through the Senate confirmation process, with Judge Gilstrap waiting 201 days to be confirmed to fill his judicial emergency seat in Texas.

The Senate’s action leaves 21 other judicial nominees waiting on the floor for their confirmation votes, 19 of whom were reported out of committee either unanimously or with strong bipartisan support.

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Is This the Last Senate Action on Judges for 2011?

Tonight, the Senate will finally hold votes on four long-pending judicial nominees: Edgardo Ramos, James Gilstrap, Andrew Carter, and Dana Christensen, all of whom have been waiting more than 200 days for their votes. And tomorrow at noon, there will be a vote to break a Republican filibuster on the nomination of Caitlin Halligan, who has been waiting over 430 days for her vote.

The filibuster of Halligan's nomination has drawn intense criticism from legal scholars who point to her distinguished record and "unanimously well-qualified" rating from the American Bar Association. But instead of voting on the merits of her nomination, partisan obstruction in the Senate has led to a filibuster, which may keep her from even getting a final yes-or-no vote.

Here are the shocking figures:

•     25 pending nominees
•     23 with very strong bipartisan support
•     21 unopposed in committee
•     10 to fill judicial emergencies
•     And if votes were held today on all nominees, their average wait time would be 177 days

Send a message to your senators and to Minority Leader Mitch McConnell and Majority Leader Harry Reid -- tell them to end the backlog and hold confirmation votes on all pending nominees, including Caitlin Halligan!

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UPDATE 12/5, 6:07 p.m.: The Senate has just voted to confirm Edgardo Ramos, James Gilstrap, Andrew Carter, and Dana Christensen. That's great news, but does not end the Senate's obligation to the American people or to the 21 nominees still waiting on the Senate floor.

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New Study Shows Twombly/Iqbal Block Access to Justice

A new study shows that the heightened pleading standard established by the Supreme Court in Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009) is preventing ordinary Americans from having their day in court.

For fifty years, plaintiffs were required only to plead a “short plain statement” of facts, under Conley v. Gibson (1957), in order to reach the discovery stage of litigation. The ability to conduct discovery is a crucial component of access to justice, because defendants often possess the evidence that plaintiffs need to prove their cases.

In Twombly and Iqbal, the Roberts Court introduced a stricter “plausibility” standard, requiring a plaintiff to plead factual content from which a court can draw the reasonable inference that the defendant is liable for the misconduct alleged. If a plaintiff is not able to plead sufficient facts to convince the court to allow her claims to proceed, she will never be able to conduct the discovery that might have led to that factual information.

In the face of widespread criticism of the new pleading standard, defenders of the Court’s rulings have pointed to a study published by the Federal Judicial Center in March 2011 that reported no increase in the rate at which federal judges grantedg motions to dismiss without leave to amend in the wake of Iqbal and Twombley.

However, a new study by Jonah Gelbach, forthcoming in the Yale Law Journal, indicates that simply comparing dismissal rates pre- and post-Twombly and Iqbal does not reveal the true effects of those decisions.  Rather, Gelbach highlights that defendants are 50 percent more likely to file a motion to dismiss post-Twombly and Iqbal, presumably because they recognize that the heightened pleading standard increases their chances of getting the claims against them dismissed. Thus, even if the overall dismissal rate has not changed, a higher percentage of cases are being dismissed. Gelbach concludes that 20 percent more cases are dismissed before discovery can be conducted under Twombly/Iqbal than were dismissed under Conley.

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Senate Confirms Droney to the Second Circuit

The Senate has confirmed Judge Christopher Droney to the United States Second Circuit Court of Appeals by a bipartisan vote of 88-0.

President Obama nominated Droney to the seat on May 4, 2011; on July 21 he was reported out of the Senate Judiciary Committee by a unanimous voice vote. From the date of his nomination, he has been waiting 209 days to be confirmed to fill his seat, which has been labeled a judicial emergency by the Administrative Office of the U.S. Courts.

The Senate’s action leaves 22 other judicial nominees waiting on the floor for their confirmation votes, 20 of whom were reported out of committee either unanimously or with strong bipartisan support.

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Corporate Court to Hear Argument in Insider Trading Case

Tomorrow the Supreme Court will hear argument in the case of Credit Suisse Securities v. Simmonds. The case arises out of a series of Initial Public Offerings (IPOs) during the tech bubble of the late 1990s. The plaintiff, Vanessa Simmonds, was an investor who owned tech stocks underwritten by Credit Suisse and other investment banks. Simmonds alleges that underwriters for these IPOs manipulated stock prices using short-swing transactions in violation of the insider trading laws.

The main issue before the Supreme Court will be when the insider trading law's two-year time limit to bring suits begins to run: when the profit is realized by insiders or when the required public disclosures are filed.

Credit Suisse argues that actions must be brought within two years of the profits being realized and therefore Simmonds’ suit is time-barred. Simmonds argues that because insiders never filed the required disclosures when the profit was realized, the two-year limitations period never began to run. The district court dismissed the complaint on the grounds that the two-year limit had expired, but the Ninth Circuit agreed with Simmonds and reversed.

If the Supreme Court finds that the suit was time-barred, corporate insiders will be able to avoid liability for their illegal insider trading activity by violating the disclosure requirement.

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Corporate Court to Hear Argument in Robocall Case

On Monday, the Supreme Court will hear argument in the case of Mims v. Arrow Financial Services.  Arrow Financial Services (“Arrow”) is an originator, servicer, and collector of private student loans.  Marcus Mims claims that Arrow harassed him about student loan payments by repeatedly calling his cell phone with an automated dialing system and leaving prerecorded voicemails.  Mims sued in federal district court and argued that Arrow’s activity violated the Telephone Consumer Protection Act (TCPA), a statute passed by Congress to restrict the ability of companies to harass consumers over the phone.  The district court dismissed the complaint and the Eleventh Circuit upheld the dismissal on the grounds that Congress gave state courts exclusive jurisdiction over TCPA lawsuits and that, therefore, federal courts lack subject matter jurisdiction.  The Supreme Court granted Mims’ appeal.

A brief filed by the National Association of Consumer Advocates (an AFJ member organization) and the National Consumer Law Center states that, “[n]otwithstanding Congress’s clearly stated intentions, extensive non-compliance by national and international telemarketing and related industries under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA) is not at all uncommon.”  The organizations added that “this unfortunate state of affairs is the failure of the TCPA’s private right of action, § 227(b)(3), to provide the vigorous enforcement and effective deterrence mechanism that Congress envisioned when it adopted this law.” 

The result of the Eleventh Circuit’s rule, according to the brief, is that differing state standards apply to the TCPA that unfairly disadvantage some state residents.  “Differences in degrees of federal consumer protection based on state residency are unacceptable; that the TCPA’s minimal standards of privacy are unenforceable now in at least two states – Maryland and Texas – is a result that should attain only with the explicit and unambiguous Congressional approval that is lacking here.” 

If the Supreme Court sides with Arrow, consumers will be far less capable of holding companies accountable for unlawful telephone harassment in federal court and might enjoy weaker consumer protections based on the state in which they live.

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Call Them What They Are: Bills to Kill Laws Corporations Don’t Like

Two dangerous bills that would hobble the ability of federal agencies to protect the public interest are likely to hit the House floor by the end of this month.  If enacted, the bills would effectively allow future Congresses, the courts, and special interests to undermine laws intended to protect the well-being of workers, children, seniors, and the public as a whole.

Generally, when Congress passes a law and the president signs it, an agency is given the job of determining the best ways to implement the law by creating comprehensive and effective rules and regulations.   The agency is tasked with this responsibility in the text of the statute, which mandates the results that must be achieved and the boundaries that guide the process.  Working to fulfill these Congressional mandates, the agency draws on its expertise to find the best ways for the goals of the law to be realized in service of the public good.

The proposed bills would severely interfere with the rulemaking process, virtually assuring that new laws passed by Congress would not take effect for over a decade, if ever.  They would also open the doors to undermining current laws such as the Clean Air Act and the Food Safety Modernization Act, allowing lawmakers influenced by special interests to halt new rules without ever having to take a direct stance against a law popular with their constituents.

The Regulatory Accountability Act (H.R. 3010) is a dream come true for corporate special interests pushing to block or weaken regulatory safeguards in order to maximize profits.  It would make bottom-line costs to businesses the number one factor in evaluating all government rules, with public health and safety only a secondary consideration.  This bill would upend generations of health, safety, and environmental regulations and laws designed to protect citizens from discrimination and corporate abuses by drastically changing the process of how rules are made.

A bottom-line cost analysis would trump any other language in laws that say the top priority should be to do the best job to protect Americans; money and profits would undermine the safety and well-being of people.  Quantitative costs would be pitted against the more intangible qualitative benefits as agencies would be required to adopt the “least costly” possible option for every potential rule that could be considered.  By this standard, agencies would find themselves on a never-ending treadmill of analyzing every possible alternative to a proposed rule when seeking to address immediate and current threats such as Salmonella-tainted food and the immediate and ongoing impact of disasters like the BP oil spill.  Just as importantly, the bill would virtually end the ability of agencies to implement preventative safety measures that could keep these and other harmful acts from happening in the first place.

The bill would also open the floodgates for new legal challenges that would tip the balance of rule-making power in favor of those with enough money, time, and power to hire and retain high-cost legal assistance to mount sustained objections to agency action.  The entire process could be halted by anyone bringing a court challenge to claim that another, less costly, rule was not considered or decided upon, at which point judges would be thrust into the role of rule-making by inserting their own opinion about whether quantifiable costs outweigh the qualitative benefits of a rule.  The act virtually mandates that judges enter the legislative and executive arenas by becoming regulators.

The Regulations from the Executive in Need of Scrutiny Act of 2011 (H.R. 10/S. 299), also known as “REINS,” is even more blatant in its attempt to bring regulations to a screeching halt.  REINS would require congressional approval of all major rules within 70 days, essentially asking Congress to go back and re-legislate the legislation it has already passed and sent on to the agencies for enforcement.  It would give those on the losing side of a Congressional vote a second bite at the apple, letting them block, piece by piece, the ways in which laws take effect.  It provides a sleight-of-hand way to freeze a broad array of regulations ranging from clean air protections to workplace safety regulations to food and toy safety measures to controls on Wall Street.

Our federal agencies exist to protect people, not to save industries money. Blocking, weakening or delaying critical standards and safeguards will result in more illness caused by unsafe food; more erosion of the quality of our air and water; more preventable job injuries that harm workers and employers; continued vulnerability to economic catastrophes; and greater loss of privacy. What’s more, multiple surveys show that regulations are not a major concern for small businesses – what they need are more customers and more certainty about our economy’s future.

The Regulatory Accountability Act and REINS Act protect big businesses at the expense of our communities and families.

Click here to learn more about the public protections that will be affected by RAA.

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A Wolf in Sheep's Pajamas: First American v. Edwards

Guest Post by Professor Amanda Leiter

Unless you’ve recently bought property, you probably aren’t familiar with the Real Estate Settlement Procedures Act, or RESPA. And unless you’re familiar with RESPA, you probably haven’t paid attention to the pending U.S. Supreme Court case First American v. Edwards.

But First American deserves your attention because it’s a wolf in misleadingly sleep-inducing sheep’s pajamas.

The case, which the Court will hear on November 28, involves homebuyer Denise Edwards’ claim that First American paid kickbacks to a real estate settlement company in exchange for that company’s promise to offer only First American-brand title insurance. As a result of this backroom deal, Ms. Edwards and other homebuyers paid a fixed price for settlement and insurance, and couldn’t shop around for lower-priced insurance. If Ms. Edwards’ claims are true, then First American’s payments to the settlement company violated RESPA, and First American must pay Ms. Edwards and like homebuyers three times their settlement costs.

The question before the Court, though, is not whether First American broke the law, but whether a slippery constitutional doctrine called “standing” prevents Ms. Edwards and other homeowners from going to court in the first place.

“Standing” rules require a plaintiff to prove she suffered a concrete harm from the defendant’s unlawful conduct. In statutes like RESPA, however, Congress gave citizens the right to sue over statutory violations without proving that they suffered an economic harm.  Thus, under RESPA, a homebuyer can sue a settlement company that paid kickbacks to a title insurer even if the homebuyer can’t prove that as a result, she paid more for settlement services.

Why did Congress allow homeowners to sue over kickbacks that may not have directly injured them?  Because legislators understood two things. First, kickbacks harm all homebuyers by distorting the market for settlement products. Second, individual homebuyers would have a hard time proving those market distortions because they have little information about transactions other than their own. Thus, Congress sought to level the playing field between homebuyers and settlement companies by easing homebuyers’ access to court.

Congress has used this approach in many contexts. The National Environmental Policy Act (NEPA), for example, seeks to improve access to information about the environmental consequences of government actions, and individual citizens can sue to enforce NEPA’s terms. An individual NEPA plaintiff must prove that she has a connection to the government action at issue in her case—for example, that she likes to hike on the land that the government proposes to develop—but she does not have to prove that the NEPA violation directly harmed that land. Why did NEPA’s drafters allow citizens to sue over violations that may not have directly affected them? Again, because Congress recognized that the absence of information about environmental impacts harms the public at large, but citizens would have difficulty proving specific injuries.

There are many other examples. Banking and medical privacy laws empower individuals to sue if their personal information is unlawfully disclosed, whether or not they can prove the information has been misused. The Fair Credit Reporting Act empowers consumers to sue when a reporting agency violates measures aimed at avoiding identity theft, whether or not they can prove their identities were stolen.

In short, RESPA is one of numerous statutes that protect the public and empower individuals to enforce the resulting protections. The fate of all such statutes hangs in the balance in First American. If the Court decides that standing doctrines bar Ms. Edwards from pursuing her RESPA claims, then the same doctrines will bar nature lovers, and bank account holders, and patients, and credit card users—all of us—from enforcing the consumer and natural resource protections that Congress has enacted over the last half-century.

An Associate Professor of Law at American University's Washington College of Law, Amanda Leiter teaches environmental law, administrative law, and torts, and her research interests include administrative law and process, and domestic environmental law and policy. Before joining the AU faculty in the fall of 2011, Professor Leiter was an associate professor at Catholic University’s Columbus School of Law. Prior to that, she was a litigator at the Natural Resources Defense Council, where she developed and pursued federal appeals court challenges to EPA rules governing industrial air pollution. Professor Leiter clerked for Judge Nancy Gertner of the Federal District Court for the District of Massachusetts; for Judge David Tatel of the D.C. Circuit Court of Appeals; and for Supreme Court Justice John Paul Stevens. She is admitted to practice before the District of Columbia, the States of Colorado and Massachusetts, and the U.S. Supreme Court.

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23 Pending Nominees, Waiting an Average of 184 Days

There are currently 23 nominees awaiting final votes in the Senate. They've had their hearings, the Judiciary Committee has deliberated, and they were approved by the committee -- most without any opposition at all.

Those nominees have put their lives on hold while the Senate drags its feet. Caitlin Halligan has been waiting over 400 days for a vote. Some nominees, like Christopher Droney of Connecticut, have been nominated to seats that are considered "judicial emergencies" -- and Droney's nomination to the Second Circuit has been pending nearly 200 days.

Ronnie Abrams (NY)	Cathy Bencivegno (CA)	Margo Brodie (NY)	Andrew Carter (NY)
Morgan Christen (AK)	Dana Christensen (MT)	Rudolph Contreras (DC)	Christopher Droney (2nd CCA)
Miranda Du (NV)	Michael Fitzgerald (CA)	Jesse Furman (NY)	John Gerrard (NE)
James Gilstrap (TX)	Michael Green (NY)	Gina Groh (WV)	Caitlin Halligan (DC CCA)
Adalberto Jordan (11th CCA)	Susie Morgan (LA)	David Nuffer (UT)	Mary Phillips (MO)
Edgardo Ramos (NY)	Thomas Rice (WA)	Stephanie Thacker (4th CCA)

It's time for the Senate to do its job and hold votes on these 23 nominees. Click here to send a message to your Senators and the Senate leaders. Tell them that the obstruction and partisan games must end.

Here are the shocking figures:

• 23 pending nominees
• 21 with very strong bipartisan support
• 19 unopposed in committee
• 8 to fill judicial emergencies
• And if votes were held today, the nominees' average wait time would be 184 days

Knee-jerk obstruction in the Senate and the slow pace of confirmation votes threaten to make the judicial confirmation rate during President Obama's first term lower than for any president in modern history.

Please send a message to your senators and to Minority Leader Mitch McConnell and Majority Leader Harry Reid -- tell them to end the backlog and call for a vote on all pending nominees!

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A Question of Integrity: San Francisco Premiere

On Monday evening, Alliance for Justice teamed with California Common Cause and CREDO Action for the screening of the new AFJ film “A Question of Integrity: Politics, Ethics, and the Supreme Court.” After the screening of the film, there was a panel discussion featuring experts on the issue, followed by a Q&A with the audience.

Lee Fang, the investigative researcher and blogger at ThinkProgress who discovered the participation of Justices Thomas, Alito, and Scalia at secret meetings, including big-ticket fundraisers held by conservative political funders, explained how he had been investigating the Tea Party in 2009 when he learned that the billionaire Koch brothers and various industry groups were funding Tea Party activism. Then, in October of 2010, Fang received an anonymous package about a Koch brothers policy summit being held in Southern California in early 2011. Digging deeper, Fang found that these events had been taking place regularly, and had advertised the presence of Supreme Court Justices Thomas and Alito. Fang actually confronted Justice Alito at one of these events, asking him whether he felt like his presence there was appropriate, to which Justice Alito responded that his presence there was "not important."

Richard Zitrin, Professor in Legal Ethics at the University of California-Hastings, said it is unconscionable that Supreme Court justices would be taking part in these kinds of activities, which would violate the Code of Conduct for U.S. Judges that applies to all other federal judges. Zitrin was adamant that, because Supreme Court justices are afforded such respect by our legal system, it makes no sense to hold them to a lower standard than other federal judges when it comes to the appearance of impropriety.

Derek Cressman, the Western States Regional Director at Common Cause, has been on the trail of the Kochs – and many of their ethically questionable political practices – since the revelation of their secret retreats. He noted that Supreme Court justices should not have to sequester themselves, but they should refrain from participating in events where they appear to be cozying up to major political funders.

Judge Marilyn Patel, showed deference to her colleagues on the bench and did not address calls for justices to resign, but she explained that, for justice to be administered, there cannot be any appearance of judicial impropriety. She added that there is a strong argument that the Code of Conduct as it is currently written is actually applicable to Supreme Court justices, notwithstanding the justices’ current view that it is not binding. Moreover, she explained that, because Supreme Court justices are given lifetime tenure, we need to confirm justices who will uphold high ethical standards.

Zitrin suggested that, although he generally does not like litmus tests for determining judge qualifications, pledging adherence to the Code of Conduct, whether or not it is currently required of the justices, should be necessary for any nominated justice to be confirmed in the Senate.

Asked about the distinction between appearing at an event and at a fundraiser, Judge Patel cited guidance by the Administrative Council of Courts advising against participation by judges as keynote speakers at fundraisers for nonprofits. As far as whether it is hard to determine if an event is a fundraiser, she noted that she confirmed with Alliance for Justice that Monday's film screening and panel discussion was not a fundraiser before agreeing to participate. She also said that if a judge is asked to speak at a $250 per plate event, that event is obviously a fundraiser, and any judge who is unable to determine that would “really be out of touch.”

Judge Patel noted that some people oppose recusal by Supreme Court justices because they cannot be replaced by another judge when they abstain from hearing a case. She responds to that argument by pointing out that if the justices were to simply comply with the Code of Conduct, there would rarely be a need for them to recuse themselves.

The film premiered in Washington on November 1, and a New York premiere screening is planned for early December. Stay tuned for more information on future screenings!

For more on judicial ethics and to view the film, please visit www.aquestionofintegrity.org.

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Senate Confirms Two Women To District Court Seats

The Senate has confirmed two women to be United States District Court judges. Sharon Gleason was confirmed to the District Court of Alaska by a bipartisan vote of 87-8 and Yvonne Gonzales Rogers to the Northern District of California by a bipartisan vote of 89-6.

Gleason is the first woman to serve as a federal district judge in Alaska.  Nominated to the seat on April 6, 2011, she has waited 224 days to be confirmed.  Rogers has waited 196 days from nomination to confirmation.

The Senate’s action leaves 45 judicial nominees pending in the Senate.  Twenty-three of these nominees are waiting on the floor for their confirmation votes; 21 of those 23 were reported out of committee either unanimously or with strong bipartisan support.

For the most accurate, up-to-date information on the judicial selection process, visit AFJ's Judicial Selection page.

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A Shockingly Clear Case for Reform

Last night in Washington, the conservative Federalist Society held a black-tie fundraising dinner with featured speakers Antonin Scalia and Clarence Thomas.

The New York Times took note:

If they were mere federal judges they could not have accepted the invitation, because Canon 4(C) of the Code of Conduct for United States Judges prohibits personal participation in fundraising activities. It states that judges should not “solicit funds for any organization, or use or permit the use of the prestige of judicial office for that purpose.”

It’s an excellent rule and it would apply to the Federalist Society’s $175 a plate, sold-out dinner, which is clearly a fundraiser, with Justices Scalia and Thomas the star attractions in the black-tie optional event billed as “A Celebration of Service.”

The problem is that Supreme Court justices are not bound by Canon 4(C).

There's nothing stopping the Court from voluntarily adopting the same Code of Conduct that binds every other federal court, and putting an end to the kind of behavior that has left many Americans wondering if Supreme Court justices are becoming "politicians in robes."

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An average of 184 days

** UPDATE: THIS ALERT IS NO LONGER ACTIVE ** 

 With each passing day, America's judicial vacancy crisis grows worse.

There are currently 23 nominees awaiting final votes in the Senate. They've had their hearings, the Judiciary Committee has deliberated, and they were approved by the committee -- most without any opposition at all.

Those nominees have put their lives on hold while the Senate drags its feet. Caitlin Halligan has been waiting over 400 days for a vote. Some nominees, like Christopher Droney of Connecticut, have been nominated to seats that are considered "judicial emergencies" -- and Droney's nomination to the Second Circuit has been pending nearly 200 days.

It's time for the Senate to do its job and hold votes on these 23 nominees. Send a message to your Senators and the Senate leaders. Tell them that the obstruction and partisan games must end.

Here are the shocking figures:

• 23 pending nominees
• 21 with very strong bipartisan support
• 19 unopposed in committee
• 8 to fill judicial emergencies
• And if votes were held today, the nominees' average wait time would be 184 days

Knee-jerk obstruction in the Senate and the slow pace of confirmation votes threaten to make the judicial confirmation rate during President Obama's first term lower than for any president in modern history.

Send a message to your senators and to Minority Leader Mitch McConnell and Majority Leader Harry Reid -- tell them to end the backlog and call for a vote on all pending nominees!

Read more »

GPS Surveillance and the Fourth Amendment: Thoughts on United States v. Jones

Guest post by Daniel Solove

In United States v. Jones, FBI agents installed a GPS tracking device on Jones’ car and monitored where he drove for a month without a warrant.  Jones challenged the warrantless GPS surveillance as a violation of the Fourth Amendment.  The D.C. Circuit agreed with Jones.

On its face, the D.C. Circuit opinion appears to clash with the Supreme Court’s decision in United States v. Knotts, 460 U.S. 276 (1983), where the police installed a much simpler tracking device (referred to as a “beeper”) to a person’s car.  The Court concluded that the Fourth Amendment did not apply to the beeper because a “person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements.”

The D.C. Circuit distinguished Knotts because there, the Supreme Court noted that the surveillance was limited and explicitly noted that more pervasive surveillance might be treated differently.   As the Court in Knotts stated that “if such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.”

The Supreme Court will determine if it agrees with this theory.   The Court has long held that there is no expectation of privacy in public.  This view has been frequently criticized as failing to recognize that people enjoy much practical obscurity in public and pervasive monitoring will dramatically undermine this obscurity.  Will the Court revisit its view about the lack of privacy in public given the changing capabilities of technology?

If the Court were to conclude that the Fourth Amendment required a warrant for GPS surveillance, it would have to define a coherent line between when a person in public has an expectation of privacy and when a person lacks such an expectation.  Such a line would be challenging to draw.

If extreme enough, quantitative differences can become qualitative differences.  But how does one articulate this into a workable approach in the law that isn’t too vague and mushy?

I was speaking with Peter Swire recently, who said that in order to convince the Court to draw such a line, it would be helpful for scholars to propose a workable test or approach for the Court to use.  I think he’s right.  So here’s my stab at it.

The Fourth Amendment applies to a surveillance technology used in public if the surveillance technology: (1)  extends significantly beyond human capabilities; and (2) is used in a manner beyond its ordinary use by the general public.

Let’s see how this might work with a few examples:

1. Flashlight.  A flashlight provides illumination where ordinarily humans might not be able to see.  But its ordinary or intended use is to allow people to see things in the dark, so it wouldn’t be covered by the Fourth  Amendment.

2. Thermal Sensors as Used in Kyllo.  The use of thermal sensors to detect heat patterns in the home would be regulated by the Fourth Amendment.  My approach would create a more sensible rationale than that used in Kyllo v. United States, 533 U.S. 27 (2001) (whether the technology is in general public use).  Thermal sensors are in general public use, but they are not ordinarily used to spy into people’s homes.

Applying this approach to GPS, the technology can track people much more pervasively than regular stakeouts or  following them around.   It thus extends significantly beyond human capabilities.  The general public does not use GPS as a way to track people’s movements.   They use it as a way to find places and navigate while driving.  Therefore, the police use of GPS to place a person under surveillance would be covered by the Fourth Amendment.  Knotts could be distinguished because the beeeper wasn’t as pervasive and thus could be argued not to have extended significantly beyond human capabilities.

I don’t agree with the reasonable expectation of privacy approach to the Fourth Amendment, but if the Court is going to stick with this approach and try to fit GPS surveillance within its existing caselaw, then the above test will hopefully be consistent enough with the Court’s caselaw and more coherent than the tests previously articulated by the Court.

This post originally appeared on Concurring Opinions.

Daniel J. Solove is the John Marshall Harlan Research Professor of Law at the George Washington University Law School.  He is also a Senior Policy Advisor at the law firm Hogan Lovells.  Additionally, he is the founder of TeachPrivacy, a company that helps schools with privacy issues.  An internationally-known expert in privacy law, Solove is the author of several books, including most recently Nothing to Hide: The False Tradeoff Between Privacy and Security (Yale 2011).

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Corporate Court hears argument in food safety and railroad safety cases

Tomorrow the Supreme Court will hear argument in two cases in which corporate defendants are attempting to avoid liability by arguing that state safety laws are preempted by federal law. At stake in Kurns v. Railroad Friction Products Corp. is the ability of individuals to hold railroad manufacturers responsible for violating state safety regulations that are more protective than federal safety standards. At stake in National Meat Association v. Harris is the ability of states to enact laws designed to protect the food supply when federal regulations do not provide that protection.

In Kurns, the daughter of a deceased railroad worker is suing railroad parts manufacturers on behalf of her father who died as a result of contracting malignant mesolthelioma, the only generally accepted cause of which is asbestos exposure. Defendants admittedly manufactured products which contained asbestos and failed to provide specific product warnings which are required under state law. Federal railroad regulations are silent as to warnings for products containing asbestos. Defendants claim that federal railroad regulations control the entire field of regulation with regard to railroad parts manufacture and use, and therefore any state law which imposes additional requirements is preempted.

The District Court and Court of Appeals in the Third Circuit both granted defendants summary judgment on the theory of implied field preemption, holding that the Locomotive Inspection Act (“LIA”) is the controlling law in the field of railroad safety regulations and effectively preempts any product liability claims based in state law.

However, states have historically shared the responsibility for railroad regulation and the Federal Railway Safety Act, in fact, allows states to continue in force any regulation relating to railroad safety until a federal law is enacted which concerns the same issue. Here, the LIA is silent as to product warnings for those products containing asbestos. Therefore, the state regulation which relates to this issue should be enforceable.

If the Supreme Court upholds the lower courts’ decision in favor of the defendants it will prevent injured citizens from holding railroad manufacturers responsible for violating state safety regulations, many of which speak to local safety hazards and provide more stringent protections which are not afforded by federal laws.

In National Meat, a trade association is suing to enjoin a California state law passed in response to shocking footage recorded in a slaughterhouse.

In January 2008, the Humane Society released undercover video depicting sick and disabled cows (“downer” or “non-ambulatory” animals) being beaten, kicked, shocked, and dragged by forklifts and chains on their way to slaughter. In addition to raising concerns about animal welfare, the video inspired grave concerns about the safety of the food supply. Downer animals are much more susceptible to contracting and passing on the E. coli virus, mad cow disease, and salmonella, all of which pose severe health threats to humans. In fact, it later emerged that meat from those same animals had been processed and sold, leading to the largest beef product recall in United States history.

The California State Legislature subsequently amended existing California laws governing slaughterhouses, to prohibit purchasing, selling, receiving, processing, or butchering of “nonambulatory” or “downer” pigs, sheep, goats or cattle, and requiring that such animals be immediately and humanely euthanized.

The National Meat Association (the “Association”) sued to enjoin the law, arguing that it was preempted by the Federal Meat Inspection Act (the “FMIA”). The FMIA was enacted to protect the health of consumers by ensuring that meat for human consumption is wholesome and not adulterated. It sets forth inspection and examination requirements for animals that are intended to be slaughtered for human consumption, including downer animals. The Association argues that provisions of the California law that address slaughterhouse “operations,” are “within the scope” of the FMIA, but “in addition to, or different than” FMIA requirements, and therefore are preempted by the FMIA.

California argues that the state law disqualifies downer animals from being slaughtered for the purpose of human food production. Because downer animals effectively never become part of the slaughterhouse “operations” of human food production, the law is not preempted by the FMIA, which only regulates the processing of animals that are destined for human consumption.

The district court granted the Association’s motion for a preliminary injunction, finding that the California law was preempted by the FMIA, both expressly and by implication. The Court of Appeals for the Ninth Circuit reversed.

If the Supreme Court rules against California, states will be severely constrained in their ability to protect their residents from the dangers of a contaminated food supply.

These two cases have the potential to be additional examples of the Corporate Court using federal preemption to protect corporate interests and prevent states from protecting public safety.

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Senate Confirms Wallach to the Federal Circuit

Today, the Senate confirmed Evan J. Wallach to the United States Federal Circuit Court of Appeals by a bipartisan vote of 99-0. President Obama nominated Wallach to the seat on July 28, 2011; on October 6 he was reported out of the Senate Judiciary Committee by a unanimous voice vote.

Wallach's confirmation is an example of how timely the confirmation process can be when reflexive obstruction is set aside; the Senate took action on Judge Wallach’s nomination just 34 days after his name reached the floor.

The Senate’s action leaves 24 other judicial nominees waiting on the floor for their confirmation votes, 21 of whom were reported out of committee either unanimously or with strong bipartisan support.

For the most accurate, up-to-date information on the judicial selection process, visit our Judicial Selection page.

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Supreme Court takes another look at New Orleans DA’s repeated Brady violations

Today the Supreme Court hears argument in the case of Smith v. Cain, yet another case in which the Orleans Parish District Attorneys’ Office committed egregious Brady violations by failing to disclose exculpatory and impeachment evidence to the defense.

This case follows closely on the Court’s controversial, 5-4 decision in Connick v. Thompson, delivered in March of this year. In Thompson, a narrow majority of the Court exonerated Harry Connick, the former Orleans Parish District Attorney, of liability for failing to train prosecutors who worked in his office regarding their obligation to disclose exculpatory evidence to defendants. The Court reversed a jury’s $14 million damages verdict for Thompson, whose murder conviction was overturned after 14 years on death row when withheld evidence was discovered by a defense investigator a month before his scheduled execution. The Court concluded that the D.A. did not have notice of the need for additional Brady training, distinguishing four other Orleans Parish convictions that were reversed in the 10 years prior to Thompson’s trial because they represented a different “sort” of Brady violation. This conclusion was particularly stunning because the Court had previously admonished Connick’s office in the 1995 case of Kyles v. Whitley for its Brady violations, instructing it to “err on the side of disclosure in order to avoid Brady violations.” Even Connick’s successor, Eddie Jack Jordan, Jr., stated upon assuming office in 2003 that “the former administration had a policy of keeping as much information as possible from the defense attorney.”

Smith v. Cain presents yet another shocking fact pattern, in which multiple pieces of exculpatory evidence were withheld by Connick’s office in a man’s trial on five murder charges. As the petition for cert pointed out, since 1981, there have been seven cases in which Louisiana death-row inmates have been exonerated, four of the seven were prosecuted in Orleans Parish, and all four involved “serious Brady violations.” Additionally, the Assistant District Attorney who prosecuted Smith had been sanctioned by the Louisiana Supreme Court for Brady violations in an earlier murder case.

The Supreme Court has an opportunity in this case to rectify its mistakes in Thompson. But if the Court finds for respondent, it will further erode the due process rights of criminal defendants as established nearly fifty years ago in Brady v. Maryland.

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Supreme Court to Hear Argument in GPS Tracking Case

Tomorrow the Supreme Court will hear argument in the case of United States v. Jones. At stake is the right of individuals to be free from warrantless government tracking of their vehicle’s location through GPS technology.

District of Columbia police suspected Antoine Jones, a nightclub owner, of being involved in cocaine distribution. The warrant obtained by prosecutors allowed police to place a GPS tracking device on Jones’s vehicle while it was in the District of Columbia and for ten days only. Instead, D.C. authorities placed the GPS device on Mr. Jones’s car while it was located in Maryland and tracked Mr. Jones’s car for a month, in contravention of the warrant. The device recorded Jones’s vehicles movements continuously, 24-hours a day. Using the evidence gathered with the GPS device, authorities charged Mr. Jones with conspiracy to sell cocaine.

At his trial, Jones moved to suppress the GPS evidence as an unreasonable search and invasion of his privacy in contravention of the Fourth Amendment. The trial court refused to suppress the evidence and he was convicted and sentenced to life in prison. On appeal, the U.S. Court of Appeals for the D.C. Circuit found that the police violated Jones’s reasonable expectation of privacy by putting the device on his car without a valid court order.

The last relevant Supreme Court case, United States v. Knotts, allowed the use of beepers that send a signal to the police from a suspect’s vehicle for several hours only. The use of GPS devices for round-the-clock surveillance over a much longer period of time raises much greater concerns.

If the Supreme Court finds for the government in this case, it could pave the way for the use of technologically advanced tracking of individuals in ways that increasingly invade an individual’s private life.

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What's standing in the way of reform?

The Code of Conduct for U.S. Judges lays out ethical guidelines to protect the integrity of our judicial system, and its rules bind every federal judge... except nine. Can you guess which?

That's right... the Code of Conduct for U.S. Judges applies to every federal judge except the nine justices of the Supreme Court.

As Slate.com Senior Editor Dahlia Lithwick put it in AFJ's latest film, "When you tell people that the Code of Conduct applies to everyone but Supreme Court justices, they think it's a joke. That's how preposterous it is."

But we can change that, right now. Sign our petition and send a message to Chief Justice John Roberts and let him know that it's time for every Supreme Court justice to follow the same rules that govern every other federal judge in America.

Several Supreme Court justices have recently made headlines by engaging in behavior that likely would not be permitted if they sat on lower courts.

• Justice Alito has headlined fundraisers for right-wing groups such as the American Spectator magazine.
• Justices Scalia and Thomas attended political strategy and fundraising conferences hosted by the ultra-conservative billionaire Koch brothers. The justices have also allowed their names to be used to draw attendees.
• Justice Thomas maintains a relationship with conservative funder Harlan Crow that stretches the appearance of unethical behavior beyond the breaking point.

There's nothing stopping the Court from voluntarily adopting the Code of Conduct and putting an end to the kind of behavior that has left many Americans wondering if Supreme Court justices are becoming "politicians in robes."

Click here to send a message to John Roberts. Tell him that the Court could voluntarily adopt the Code of Conduct RIGHT NOW and put these fears to rest by preserving the integrity of our nation's highest legal institution.

Reform can happen. The same Code of Conduct that's good enough for every other federal judge is good enough for the nine justices of the Supreme Court. Take action today and make sure that Chief Justice Roberts understands that his Court faces a question of integrity... and that his answer can protect the Court from harmful poltical influence.

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Supreme Court to hear case on federal preemption of state food safety laws

On November 9, the Supreme Court will hear argument in National Meat Association v. Harris. At stake is whether a state may enact laws designed to protect the food supply when federal regulations do not address the specific issue.

In January 2008, the Humane Society released an undercover video depicting sick and disabled cows (“downer” or “non-ambulatory” animals) being beaten, kicked, shocked, and dragged by forklifts and chains on their way to slaughter. In addition to raising concerns about animal welfare, the video inspired grave concerns about the safety of the food supply. Downer animals are much more susceptible to contracting and passing on the E. coli virus, mad cow disease, and salmonella, all of which pose severe health threats to humans. In fact, it later emerged that meat from those same animals had been processed and sold, leading to the largest beef product recall in United States history.

The California state legislature subsequently amended existing California laws governing slaughterhouses, to prohibit purchasing, selling, receiving, processing, or butchering of “nonambulatory” or “downer” pigs, sheep, goats or cattle, and requiring that such animals be immediately and humanely euthanized.

The National Meat Association (the “Association”) sued to enjoin the law, arguing that it was preempted by the Federal Meat Inspection Act (the “FMIA”). The FMIA was enacted to protect the health of consumers by ensuring that meat for human consumption is wholesome and not adulterated. It sets forth inspection and examination requirements for animals that are intended to be slaughtered for human consumption, including downer animals. The Association argues that provisions of the California law that address slaughterhouse “operations,” are “within the scope” of the FMIA, but “in addition to, or different than” FMIA requirements, and therefore are preempted by the FMIA.

California argues that the state law disqualifies downer animals from being slaughtered for the purpose of human food production. Because downer animals effectively never become part of the slaughterhouse “operations” of human food production, the law is not preempted by the FMIA, which only regulates the processing of animals that are destined for human consumption.

The district court granted the Association’s motion for a preliminary injunction, finding that the California law was preempted by the FMIA, both expressly and by implication.  The Court of Appeals for the Ninth Circuit reversed.

If the Supreme Court rules against California, states will be severely constrained in their ability to protect their residents from the dangers of a contaminated food supply.

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Judiciary Committee Reports Five Judicial Nominees to the Floor

This morning the Senate Judiciary Committee reported five judicial nominees to the Senate floor. Four nominees were reported on a unanimous voice vote: Stephanie Dawn Thacker, Michael Walker Fitzgerald, Ronnie Abrams, and Rudolph Contreras, nominees to the Fourth Circuit, the Central District of California, the Southern District of New York, and the District of Columbia, respectively.

Miranda Du, nominee to the District of Nevada, was reported out on a 10-8 party-line vote.

Fitzgerald and Du have been appointed to vacant seats that have been designated as judicial emergencies by the Administrative Office of the U.S. Courts.

The committee also held over until its next meeting a vote on Susie Morgan, nominee to the Eastern District of Louisiana.

For the most up-to-date and comprehensive information on judicial nominations, see the Alliance for Justice’s Judicial Selection Project webpage.

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Hearing for Three Nominees

The Senate Judiciary Committee today held a hearing on the nomination of Judge Jacqueline Nguyen to the United States Ninth Circuit Court of Appeals. Nguyen was nominated to the Ninth Circuit by President Obama on September 22, 2011; she was appointed to her current seat on the U.S. District Court for the Central District of California by President Obama in July 2009, taking her place on the bench in December of that year when the Senate confirmed her with a unanimous vote of 97-0. Judge Nguyen, who was born in Dalat, Vietnam in 1965 and fled that country at the age of nine during the fall of Saigon, is the first Vietnamese American to serve on the federal bench. If confirmed to the Ninth Circuit, she will be the United States’ first Asian Pacific American woman to serve as a federal appellate court judge and one of only two Asian Pacific Americans actively serving in the nation’s federal Courts of Appeals.

Hearings were also held for Gregg Jeffrey Costa and David Campos Guaderrama, to be United States District Judges for the Southern District and the Western District of Texas, respectively.

All three seats are open due to vacancies that have been designated judicial emergencies by the Administrative Office of the U.S. Courts. The seat to which Nguyen is nominated has been vacant for 1,016 days since its creation on January 21, 2009. Costa and Guaderrama are being considered for seats vacant for hundreds of days--Costa’s for 510 days, Guaderrama’s for 980—since the prior occupants took senior status.

For the most up-to-date and comprehensive information on judicial nominations see our Judicial Selection Project page.

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A Question of Integrity Premieres in Washington

Last night in Washington, Alliance for Justice premiered our latest short documentary film, A Question of Integrity: Politics, Ethics, and the Supreme Court.

A Question of Integrity examines growing concerns about ethically questionable and overtly political behavior by some Supreme Court justices, and explores the need the need to apply the same ethical standards that govern every other judge in the federal court system to the nation's highest court. Viewers are called to action in support of reforms essential to preserve the integrity of our most important legal institution.

The film played to a full room at Washington’s historic E Street Cinema, and was followed by a lively question-and-answer session with Slate Senior Editor Dahlia Lithwick and American University Fellow in Law and Government William Yeomans. (Due to severe weather in the northeast, Congressman Chris Murphy of Connecticut was unable to attend.)

Lithwick and Yeomans took questions from the audience on the film, on questions of recusal surrounding the upcoming health-care case, and on why the issue of judicial ethics matters so much. Several attendees asked whether or not Congressional action on judicial ethics could raise serious separation of powers issues. Yeomans pointed out that the current recusal statute (which does apply to the Supreme Court, though individual justices are the sole determiners of whether or not it applies in each case) was established by Congress, and Lithwick pointed out that the justices could sidestep that point entirely by voluntarily adopting the same Code of Conduct that already applies to every other federal judge.

Alliance for Justice is leading an effort to reform the Court’s ethics rules. To learn more, watch A Question of Integrity online, or click here for more information on judicial ethics.



Premiere events in San Francisco and New York City will be held November and early December. To host a screening in your community, click here.

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Supreme Court Hears Case On Constitutional Rights in Outsourced Prisons

Today the Supreme Court will hear oral argument in Minneci v. Pollard, a case about whether employees of a private corporation operating a federal prison may be held liable under federal law for committing constitutional violations. Petitioners are asking the Court to reverse the Ninth Circuit’s holding that claims may be asserted against the employees of privately-run federal prisons.

Richard Lee Pollard was incarcerated in a federal prison in Taft, California. The prison was operated under contract by a private company, Wackenhut Corrections Corp. (now part of the Geo Group). In April 2007, Pollard tripped over a cart that had been left in the hallway, fell, and broke both of his elbows. Prison employees forced him to use his broken arms in painful ways, refused to provide the splints recommended by his doctors, and made him engage in prison tasks before his injuries had healed.

Pollard sued both the corporate entity and individual employees for damages under Bivens v. Six Unknown Federal Narcotics Agents, claiming that his Eighth Amendment right not to be cruelly punished had been violated. Bivens was a 1971 case in which the Supreme Court created a damages remedy against federal officers for constitutional violations, where there was no other remedy available.

The district court rejected Pollard’s claims against the corporation, based upon the Supreme Court’s 2001 holding in Correction Services Corp. v. Malesko that private prison corporations cannot be sued under Bivens. The district court also dismissed Pollard’s claims against the individual employees on the grounds that they were not acting in any official capacity when Pollard was injured, and that Pollard had the alternative remedy of suing for damages under California law.

The Court of Appeals for the Ninth Circuit reversed the district court’s decision as to the individual employees, ruling that the corporate employees were acting officially because they were carrying out a “fundamentally governmental function.” (The circuit court affirmed the district court’s ruling that the corporation itself could not be sued under Malesko). The Ninth Circuit held that the inquiry under Bivens is whether an alternative federal remedy is available; where the only alternative remedy is under state law, a Bivens action may be maintained.

The federal Bureau of Prisons relies increasingly on outsourcing the incarceration of federal prisoners. In 2009, approximately 16% of the federal prison population resided in privately-run facilities. Additionally, nearly half of federal immigration detainees are held in privately-run detention facilities.

Because private prison contractors have incentives to cut costs in order to maximize their profits, they pay corrections officers less, provide less training, and maintain fewer officers per inmate than federally-run prisons. As a result, inmates held in privately-held facilities face greater dangers to their health and safety than do other prisoners, and federal oversight of such facilities has been insufficient to correct such shortcomings. Yet petitioners seek to limit the ability of inmates to seek recompense when they suffer as a result of these dangers.

If the Supreme Court rules in favor of the corporate employees, inmates who are held in privately-run federal prisons will be unable to sue under federal law when their constitutional rights are violated by their jailers.

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Senate Confirms Higginson to the Fifth Circuit

The Senate has confirmed Stephen A. Higginson to the United States Fifth Circuit Court of Appeals by a bipartisan vote of 88-0.

President Obama nominated Higginson to the seat on May 9, 2011; on July 14 he was reported out of the Senate Judiciary Committee by a unanimous voice vote and has been waiting 109 days to be confirmed to fill his seat, which has been labeled a judicial emergency by the Administrative Office of the U.S. Courts.

The Senate’s action leaves 22 other judicial nominees waiting on the floor for their confirmation votes, 21 of whom were reported out of committee either unanimously or with strong bipartisan support.

For the most accurate, up-to-date information on the judicial selection process, visit AFJ's Judicial Selection page.

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