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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