Judicial Emergency Declared in Arizona

Due to a shortage of judges, Arizona's chief federal judge has declared a judicial emergency for the entire District of Arizona, which would allow courts to delay criminal trials for up to six months.

Arizona's federal courts were already overburdened by the combination of a 65% increase in criminal cases over the last two years and two unfilled judicial vacancies before Judge John M. Roll was killed in the Jan. 8 attack that also severely injured Rep. Gabrielle Giffords. The emergency declaration could delay the trial of Jared Lee Loughner, who entered a not-guilty plea in a Phoenix federal courtroom Monday on charges related to the shooting of Giffords and two of her staffers.

A judicial emergency is a rarely used tool to suspend the demands of the Speedy Trial Act—which requires quick trials in criminal cases—for 30 days. It was last used in the Southern District of New York after the Sept. 11, 2001, terrorist attacks. On Tuesday, the Judicial Council for the Ninth Circuit Court of Appeals, which includes Arizona, took the even rarer step of extending Judge Silver’s emergency declaration for a year, until February 2012.

New York Times Calls for Steps Toward Torture Accountability

Last week, we told you about new developments in a legal case involving the destruction of tapes that could have been used to investigate the abusive detention policies and torture used by the United States government:
Department of Justice prosecutor John Durham may soon be called into court to address his handling of the investigation into the destruction of CIA tapes documenting torture. Durham let the statute of limitations expire in November, 2010 without issuing criminal indictments. The ACLU is involved in a public records lawsuit before Judge Alvin Hellerstein, the judge who ordered the CIA not to destroy the tapes in 2004. Hellerstein expressed interest in bringing Durham in to address the court.
The New York Times ran an editorial today calling for some measure of accountability in the CIA's destruction of the torture tapes. Too many people who advocated, justified, used, and covered up detention abuses and torture have been allowed to escape legal consequences. The Times editorial argues that the tape destruction offers a significant chance for the justice system to begin reaffirming the notion that no person or agency is above the law:
The C.I.A.’s decision to destroy the tapes — rather than submit them to the judge for a decision on whether to order their public release — was a serious affront to the court and the rule of law. A contempt order is not a perfect remedy, but it would at least provide some official acknowledgment that what the C.I.A. did was wrong.
Read the full editorial here.

Senator Schumer Warns of “A Crisis in the Judiciary,” Describes a “Strong, Bipartisan Effort” to Get Judges Approved

In an important and informative interview with Politico, Senator Schumer described a “crisis in the judiciary,” and said that the Senate would make a “strong…bipartisan effort to get many more judges approved” in the current Congress.

The Senator said that even nominees who had “broad, broad support” and who had been passed “out of the judiciary committee unanimously” were being blocked in the last Congress, and that “there’s a general view that this holdup has gotten out of hand, that it doesn’t make sense to holdup noncontroversial judges.”

When asked to describe what had caused the holdup, Senator Schumer said that, “[t]he holdup has been that some of our friends on the other side of the aisle, not everybody, maybe not even a majority, say that they’re going to hold them up, and by the rules, the filibuster and other rules, they can take a week per judge. And the Senate, when you have 35-40 weeks a year and so much to do that’s not going to happen.”

Mentioning an effort to help solve the problem, he said that “Senators Leahy, Grassley, myself, and Alexander…can hopefully come together with a plan by which most all [of] the judges, the vast majority of whom are not controversial in any way, can be approved quickly, without filibuster. There are various proposals as to how to do it, or it could just be by comity, by agreement.”

The Alliance for Justice commends Senator Schumer for speaking out on this important issue, and for working to help solve the judicial vacancy crisis.

For the full video of the interview, see here.

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

Defunct Credit Card Statute Places Supreme Court in Banks' Corner Against Consumers

The Supreme Court ruled today in Chase Bank v. McCoy in favor of Chase Bank’s right to impose retroactive interest rate increases without notice on consumer credit cards under an overturned law. The replaced statute, and the Federal Reserve’s bank-friendly interpretation of it, essentially dictated the unfavorable outcome.

The Truth in Lending Act required credit card companies to provide written notice prior to the effective date of an interest rate change, but allowed an exception where the fine print of the credit card agreement specified events that would trigger an increase, including failure to make a payment. In this case, Chase’s credit card agreement with the plaintiff gave the bank broad discretion to increase interest rates up to a maximum rate based on various factors, and when the plaintiff missed a payment, Chase Bank dramatically increased his rates, applying those rates retroactively to his existing balance. Chase defended plaintiffs’ class action lawsuit on the grounds that a regulation under the Truth in Lending Act, as it was interpreted at the time, allowed this practice.

The Court held that the Federal Reserve Board’s regulations implementing the Truth in Lending Act were too ambiguous to determine whether notice was required in this situation. Therefore, the Court deferred to the Federal Reserve’s position as to how it interpreted those regulations at the time the plaintiff’s complaint arose. Ironically, the Federal Reserve’s interpretation of the Truth in Lending Act began to change in consumers’ favor after Mr. McCoy's complaint, but this new interpretation was not applied retroactively, whereas Chase Bank is allowed under this decision to apply huge rate increases retroactively to consumer credit card balances.

In May 2009, Congress enacted the Credit Card Accountability Responsibility and Disclosure Act. The Act increases to 45 days the amount of time required for notice of interest rate increases. In addition, it explicitly applies to increases that result from delinquency, default, or “events specified in the account agreement, such as making a late payment…” The new Obama era statute protects consumers from sudden and retroactive rate increases hidden in fine print. Unfortunately, today’s Supreme Court decision provides no assistance to individuals who suffered large interest rate increases under the previous law.

Supreme Court Issues Decision Protecting Employees From Retaliation

The Supreme Court issued a decision today in the case of Thompson v. North American Stainless, LP. The Court held that an employee who was fired after his fiancé filed a sex discrimination charge with the EEOC could bring a claim under Title VII, the section of the Civil Rights Act that protects against workplace discrimination. It also prohibits employers from taking action that might dissuade a reasonable worker from complaining about workplace discrimination. The employer in the case argued that only the employee who brought the discrimination complaint could sue – not her fiancé.

In an opinion written by Justice Scalia, the Court rejected this argument and noted, “We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” In other words, the purpose of Title VII would be undermined if an employer could simply fire a third party to punish an employee who speaks up about illegal discrimination.

The Court also had to address whether a third party like the plaintiff in this case had standing to challenge the employer’s action. The Court determined that an employee constitutes a “person aggrieved” and is eligible to bring a Title VII challenge when that person “falls within the ‘zone of interests’ sought to be protected by the statutory provision.” Because Title VII was meant to protect employees from their employers’ unlawful actions, Thompson was protected by the statute. The Court declined to say how far this zone of protection extends, but did not have difficulty extending it to the fiancé of the person who filed a discrimination complaint.

Justice Kagan took no part in the Court’s decision, presumably because she participated in drafting the Solicitor General’s certiorari stage brief, which was filed in May 2010, just after she stepped down as Solicitor General.

AFJ has more analysis of this and other cases before the Supreme Court on our website, “The Corporate Court’s 2010-11 Docket.”

One Year After Citizens United, the Corporate Court is Still Open for Business

Nan Aron on Huffington Post:

Today marks the one-year anniversary of one of the most notorious and unpopular Supreme Court decisions of recent years. Citizens United v. FEC overturned long-standing precedent and policy, unleashing a torrent of corporate money into American elections that threatens to further distort a political process that is already disproportionately beholden to the interests of powerful corporations.

But the decision in Citizens United to favor corporate interests and enhance their power came as no surprise to anyone paying attention to the increasingly transparent agenda of Chief Justice John Roberts and the conservative majority of this Court.

Alliance for Justice has been tracking this trend for some time, documenting the aggressive tactics of the Court's conservatives to reshape the law, including, as was the case in Citizens United, the deliberate reframing of the legal issues argued by the parties in order to achieve a predetermined result.

From Ledbetter v. Goodyear Tire & Rubber Co., where the Supreme Court overturned a jury's finding that Goodyear had systematically paid Lilly Ledbetter less than her male co-workers, to Exxon Shipping Co. v. Baker, which, after 20 years of litigation, had the effect of reducing a jury's punitive damages award by 90 percent for tens of thousands of victims of the Exxon Valdez oil spill, the Corporate Court has displayed a clear pattern of overreach and ideological bias. This trend of favoring big-business litigants is being put to the test again this term in a series of cases related to corporate prerogatives, many of which have broad implications for American life.

On March 29, the Court will hear Wal-Mart Stores v. Dukes, an enormous employment sex discrimination case, the outcome of which will affect hundreds of thousands of female employees of the retail giant, but will also determine the relative degree of power big business and everyday Americans have within our judicial system.

The Wal-Mart case began as a lawsuit by a former "greeter" named Betty Dukes who felt the company consistently paid her and other female employees less than men, funneled them into lower paying jobs, and denied them the same access to promotions. Ms. Dukes and the other women who eventually joined her lawsuit argue that the class suing Wal-Mart should consist of all the female employees who have long faced ingrained, systematic discrimination throughout the 3,400-store chain, a number that could range between 500,000 and 1.5 million individuals. That would make this the biggest--and potentially most expensive--discrimination case in history.

The company has asked the Supreme Court to throw the case out based on its belief that the class is too big, that there are too many different kinds of people affected, and that each act of alleged bias is a separate issue and can't be lumped together with others. Ominously, the Roberts Court, asked that the parties to the lawsuit be prepared to argue about whether the class itself is properly constituted. This Court has often expanded the issues being argued beyond those a particular case calls for, almost always with the goal of advancing a conservative philosophy and protecting corporate interests.

The fight in the Court isn't over the discrimination claim itself, it's over who can sue Wal-Mart, or any corporation, and how they must do it. The use of class-actions as a means to combat broad-scale discriminatory behavior hangs in the balance.

Significantly, this case has a great deal in common with the recently argued arbitration case, AT&T Mobility v. Concepcion, which was about the ability of groups of victims--in that case, exploited consumers--to band together to combat corporate abuse. Both the AT&T Mobility and Wal-Mart Stores disputes are rooted in the same question: Must the battle against corporate malfeasance be waged either individually or in small groups, where the corporation has the obvious advantage, or can everyday Americans employ the power of numbers (and pooled resources) to fight back on more level ground in the courts?

A third case to watch is American Electric Power Co., Inc. v. Connecticut, which will help determine whether federal law allows states and private parties to sue utility companies to force them to cap global warming emissions. It's a case that pits a group of utilities that together are the largest emitters of greenhouse gasses in the United States against eight states, the City of New York, and three private land trusts, which have banded together to argue that emissions constitute a public nuisance and must be controlled. If the Supreme Court sides with the polluters, it will significantly hamper the ability of citizens to hold corporations responsible for their contributions to global warming.

Although these cases, and several others on this term's docket, deal with different areas of the law, they really at their core are about the same thing: legal and economic power and who has it.

By the time these three cases are decided later this year we'll know better whether the unmistakable trend toward consolidating power in the hands of big corporations, and limiting access to legal remedies for everyday Americans, will continue. Given the transparent eagerness with which the conservative bloc of the Court took these cases, we fear the Corporate Court is still open for business.

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Click here for detailed and continually updated information on the Corporate Court and the key cases being heard this term. For a PDF summary of pending cases, click here.

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Read Nan Aron on Huffington Post

DOJ to Create New Professional Misconduct Review Unit

Attorney General Eric Holder issued a statement yesterday announcing the creation of a new Professional Misconduct Review Unit within the Department of Justice. The Unit will be tasked with handling DOJ attorney disciplinary actions that result from investigations by the Office of Professional Responsibility (OPR). Holder’s stated goal in creating the Unit is to ensure “consistent, fair, and timely resolution” of allegations of misconduct – a laudable standard.

Had this Unit been in place during DOJ’s investigation into the architects of the torture memos, we wonder if the outcome would have been different.

Following the conclusion of a five-year investigation by OPR into the authors of the torture memos, David Margolis, a career attorney with DOJ, was allowed to intervene and interfere with the OPR report’s conclusions. The OPR report concluded that John Yoo and Jay Bybee recklessly violated two rules of professional conduct, triggering a mandatory referral to the attorneys’ state bar associations for potential disciplinary action. But before the final report was released in February 2010, Margolis downgraded the findings and determined that Yoo and Bybee had only exercised “poor judgment” – not professional misconduct. As a result, more than eight years after the torture memos were written, the lawyers who crafted a scheme to torture people in U.S. custody have still not been held accountable for their actions.

Judge Wants DOJ Explanation on Investigation of CIA Tape Destruction

The Blog of Legal Times reported yesterday that Department of Justice prosecutor John Durham may soon be called into court to address his handling of the investigation into the destruction of CIA tapes documenting torture. Durham let the statute of limitations expire in November, 2010 without issuing criminal indictments. The ACLU is involved in a public records lawsuit before Judge Alvin Hellerstein, the judge who ordered the CIA not to destroy the tapes in 2004. Hellerstein expressed interest in bringing Durham in to address the court.

Durham is still involved in investigating CIA interrogation of detainees alleged to have been abusive and in some cases fatal. Though the parameters of Durham’s investigation are unknown, it is thought that it may extend to include Bush Administration officials, including the authors of the torture memos, including John Yoo and Jay Bybee.

The full Blog of Legal Times article is available here.

Supreme Court to Hear Case with Access to Justice Implications

The Supreme Court has granted cert in a trio of consolidated cases that will have significant implications for access to justice. The cases are Maxwell-Jolly v. Independent Living Center, Maxwell-Jolly v. California Pharmacists, and Maxwell-Jolly v. Santa Rosa Memorial Hospital.

The consolidated case arises from California’s decision to issue ten- and five-percent cuts for Medicaid payments to doctors, dentists, pharmacies, adult day health care centers, and clinics. A group of medical providers and low-income elderly and disabled individuals challenged the cuts, arguing that California’s actions conflicted with Section 1396a(a)(30)(A) of the Medicaid Act, which requires states to set reimbursement rates "sufficient to enlist enough providers so that care and services are available… at least to the extent that such care and services are available to the general population."

The Ninth Circuit held that the claim could proceed and that a preliminary injunction preventing the cuts from going into effect should be granted. The state officials appealing the decision asked the Court to address two issues:
  • Whether Medicaid beneficiaries and providers can sue to enjoin a state's violation of the Medicaid Act by bringing a Supremacy Clause preemption challenge
  • Whether the Medicaid Act requires states to consider the impact on access and quality before reducing rates paid to providers.
The Supreme Court has agreed to hear the first question only.

What is at stake in this case is the ability of individuals to go to federal court and challenge state actions that are preempted by federal law. Since the statute at issue in this case does not contain an individual right that would allow the plaintiffs to sue for money damages, the plaintiffs' legal challenge instead argues that the state cuts conflict with federal law – the supreme law of the land.

The plaintiffs are seeking only to ensure that California is brought into compliance with federal law – not to recover an award or attorney’s fees. For the Court to cut off this avenue would mean that the citizens in this case would have no recourse or ability to curtail future injury. It is important that people have the ability to challenge state actions as contrary to federal law, otherwise states would be able to violate the Medicaid Act-- or other federal laws -- and citizens who are injured as a result would have no way to stop additional injuries.

This case could have profound implications for one of Alliance for Justice’s cornerstone beliefs: that all Americans have the right to secure justice in the courts and to have our voices heard when government makes decisions that impact our lives.

Will the Supreme Court Let Drug Companies Overcharge for Medication?

The Supreme Court will hear arguments today in Astra USA v. Santa Clara County. At stake is whether a health care provider can bring suit against drug companies to force them to abide by a federal contract on medication pricing.

Federal law instructs the Secretary of Health and Human Services to enter into contracts with drug manufacturers to offer discounted prices for medication to public hospitals, community health centers and other safety-net health care providers. Santa Clara County, California, which operates several of these providers, claims that drug manufacturers breached their contract by charging providers more than the contracts allow. Santa Clara argues that as the intended beneficiaries of the contracts between the government and the drug manufacturers, the health care providers should be allowed to sue to enforce the contract. This would ensure lower drug prices in situations where the federal government, for whatever reason, has chosen not to sue to enforce the contract's terms.

An editorial in today's New York Times reviews the court's recent history of siding with corporations over individuals, especially in cases -- like this one -- where the corporation has hired former solicitors general to help make their cases.

If the Supreme Court sides with Astra USA, drug manufacturers will have less incentive to abide by their contractual obligations. This is yet another case where the Supreme Court's ruling could have profound benefits for big corporations, and profound harm for individuals. What's unclear is why the Corporate Court has taken this case, since Santa Clara prevailed in the Ninth Circuit, and there is no division on this issue from another federal circuit court.

Supreme Court Case Threatens to Expand "Personal" Rights for Corporations

The Supreme Court will hear arguments today in FCC v. AT&T Inc. The case hinges on whether a corporation has the same personal right of privacy that an exemption to the Freedom of Information Act (FOIA) provides to individuals.

FOIA requires government agencies to disclose most records requested in writing by any person, unless the record falls within one of nine exemptions. One of the categories protected from disclosure under FOIA is records or information compiled for law enforcement purposes when releasing the information would cause an unwarranted invasion of “personal privacy.”

Pointing to this exemption, AT&T claims that the FCC cannot disclose information about an investigation into claims of overcharges in a program through which AT&T provided equipment and services to schools. AT&T argues that releasing the records would be an invasion of its “personal privacy” under the statute. The Supreme Court must decide in this case if the personal privacy exception applies to corporations, or just people. If the Court sides with AT&T, it will continue to erase legal distinctions between the rights of human beings and the rights of corporations, and shield a company from alleged wrongdoing.

Last year at this time, a divided Court held in Citizens United that corporations had the same rights as people to spend money on political campaigns. The effect was to unleash a tsunami of corporate spending on the 2010 election, much of it from undisclosed sources.

An editorial in today's Washington Post points to the Citizens United decision as evidence of the Supreme Court's moves to protect corporate interests at the expense of individuals, and urges the Court not to make that same mistake in this case.

UPDATE: Slate - FCC v. AT&T reveals the limits of corporate personhood at the Supreme Court

Supreme Court State Secrets Privilege Case Has Important Implications for Torture Accountability

The Supreme Court will hear two consolidated cases today concerning the ability of the federal government to invoke the state secrets privilege in court. The court’s ruling could have profound implications for judicial oversight of executive branch actions in a wide range of cases, including those related to torture allegations.

In General Dynamics Corp. v. United States and The Boeing Company v. United States, the federal government terminated defense contracts based on projected scheduling delays, which exposed the contractors to severe penalties. The contractors argued that they breached their contracts because the government failed to provide information that they needed to fulfill their obligations. In response, the government invoked the state secrets privilege and claimed that allowing the contractors to proceed with their defense would expose government secrets to the public. The contractors argue that the government should not be able to win a default judgment against a private party by invoking the state secrets privilege to deprive the party of its defense.

If the Supreme Court allows the government to pick and choose which evidence can be used against it, private citizens will face an unfair playing field. Worse, by allowing the government to assert the privilege so broadly, the Court would continue a pattern of eliminating judicial review of executive branch actions. Judicial oversight over the executive branch is particularly important for ensuring that national security concerns are not allowed to ride roughshod over our nation’s civil liberties.

As the Washington Post describes in an editorial, broad interpretations of the state secrets privilege have already resulted in the early dismissal of lawsuits by those who were tortured as part of the government’s detention and interrogation program, ensuring that officials who authorized torture are not held accountable for their actions. Alliance for Justice has advocated for torture accountability and believes that the lawyers who justified torture must be held responsible.


New York Times - Tactical Secrets

Slate - "Go, Leave, Get Outta Here"

D.C. Circuit Will Likely Uphold Dismissal of Torture Lawsuit

A three-judge panel of the D.C. Circuit Court of Appeals yesterday heard oral argument in the case of Ali v. Rumsfeld. That suit is being brought by nine Iraqi and Afghan men who allege they were tortured by United States forces in Iraq and Afghanistan before being released without charge. ACLU attorney Cecillia Wang argued the case on behalf of the plaintiffs.

One of the judges on the panel, Reagan appointee Judge David Sentelle, seemed convinced that earlier precedent precluded the panel from finding for the plaintiffs. Telegraphing his intention to rule against the plaintiffs, Judge Sentelle told the Department of Justice lawyer defending the case that he need not make oral argument.

The case was dismissed by District Court Judge Thomas Hogan in March of 2007. Judge Hogan's opinion referred to the case as "appalling" and as raising "horrible torture allegations." He noted that "the facts alleged in the complaint stand as an indictment of the humanity with which the United States treats its detainees." Nonetheless, Judge Hogan ruled that constitutional protections do not extend to nonresident aliens, and that Rumsfeld and other Bush Administration officials were immune from liability.

It is widely expected that the three-judge panel will affirm Judge Hogan's dismissal of the claim. Dan Froomkin with the Huffington Post has more details about the case here.

Alliance for Justice remains concerned that yet again, high-level officials who authorized and justified torture have been let off the hook and will not be held to account for their actions. AFJ’s short film Tortured Law highlights the role that Office of Legal Counsel lawyers played in crafting the detention and interrogation program, and calls for a full-scale investigation into the authors of the "torture memos."

Human Rights First Issues Administration Report Card; Decries Lack of Torture Accountability.

Alliance for Justice ally Human Rights First has issued a report card, “Assessing the Obama Administration’s Record of Compliance with the Rule of Law and Human Rights in National Security Policy.” While the report gives President Obama an A- for standing firm against the use of torture, it gives the president a failing grade on accountability for torture. The report card notes that the failure to provide accountability for torture “is a violation of international law and diminishes the credibility of the United States as standard-bearer for human rights worldwide.”

The report card also looks at other policy areas, including: standing firm against secret detention sites; closing the Guantanamo Bay prison; transferring GTMO detainees cleared for release; trying suspects in federal court; ending the use of military commissions; ending indefinite detention; stopping the abuse of the state secrets privilege; providing due process in Afghanistan; providing accountability and oversight of security contractors; ensuring transparency and lawfulness in the use of targeted killings; and reigning in the use of extraordinary rendition.

The report concludes with eight recommendations the Administration should act upon to ensure that the rule of law and human rights are protected. A PDF of the report card is available for download here. Below are excerpts from the report card pertaining to torture:
Grade: A-

Standing Firm Against Use of Torture and Detainee Abuse. The Obama Administration clearly denounced policies of torture and detainee abuse and reinforced the primacy of the Geneva Conventions in the treatment of prisoners. The administration established a High Value Interrogation Group to ensure effective interrogation of detainees using lawful interrogation methods. There remain legitimate concerns about various interrogation techniques that are permitted by Appendix M of the Army Field Manual that are inconsistent with the Geneva Conventions requirement of humane treatment.

Grade: F

Accountability for Torture. Torture and conspiracy to commit torture are felonies under U.S. law. Yet the United States has failed to hold accountable those who authorized and perpetrated torture against prisoners in U.S. custody. In November 2010, the Justice Department announced that there would be no prosecutions for destruction of CIA tapes that allegedly recorded acts of torture committed by employees or agents of the United States. Special Prosecutor John Durham has yet to release his report on the investigation into whether crimes were committed by U.S. officials during any interrogations that included “enhanced interrogation techniques,” such as waterboarding, a well-known form of torture. The failure to hold accountable those responsible for acts of torture and to provide redress to victims (see “State Secrets” below) is a violation of international law and diminishes the credibility of the United States as standard-bearer for human rights worldwide.
AFJ has long believed that accountability for torture is necessary to ensure that these gross human rights abuses do not happen again and to restore our country’s reputation as a nation of laws. The AFJ film Tortured Law explores the role government lawyers played in authorizing torture, and calls for a full-scale investigation of those who ordered and justified torture.

Chairman Leahy calls on the Senate to do better

Senate Judiciary Committee Chairman Pat Leahy (D-Vt.) yesterday laid out an agenda for his committee for 2011, and made a special point about the need for a dramatically speedier and less contentious confirmation process for judicial nominations in the new Senate.

At his remarks at Washington’s Newseum, Chairman Leahy said:
In his annual report on the Federal Judiciary, Chief Justice Roberts recently wrote of the urgent need to fill the Federal judicial vacancies. These vacancies have reached historically high levels and resulted in overburdened courts that now face crippling caseloads. I will try to work with Senator Grassley and our Senate leadership in both parties to fill these vacancies without unnecessary delay. This is another instance where partisanship has been a destructive influence.

We need good and capable men and women to be willing to serve as judges to protect the rights of all Americans and uphold the rule of law.

We cannot ask people to take on public service as a judge, and then subject them to needless, unexplained, humiliating partisan delays in the confirmation process.
And while there was the predictable reaction to his remarks from those who turned obstruction into an obsession in the last Congress, the fact remains that judicial vacancies are crippling our courts, and the Senate has been unforgivably slow to confirm qualified judges for critically important seats on the federal bench.

Senator Leahy is right to call attention to the appalling inaction of the Senate. In the last two years, the Senate has confirmed only 60 of President Obama's circuit and district court nominees, compared to 100 confirmed in President George W. Bush's first two years. President Obama has had a lower percentage of his judicial nominees confirmed a this point in his term of office than any other president in American history.

After months of obstruction and delay, the Senate finally voted to approve 19 judicial nominees in December's lame-duck session, but left another 19 highly qualified men and women behind. Last week, President Obama re-nominated 42 individuals whose nominations stalled last year. Twenty-three of the re-nominations are for seats that are considered "judicial emergencies" because of the extraordinarily high caseloads in certain districts.

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

National Commission on the BP Oil Spill Pulls No Punches in its Final Report

The National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling has released its long-awaited report on last year’s calamity in the Gulf of Mexico and reaches powerful conclusions about the causes of the disaster, including that "[t]he explosive loss of the Macondo well could have been prevented."

The commissioners explicitly tackle the root causes of the disaster, which they trace to "a series of identifiable mistakes made by BP, Halliburton, and Transocean that reveal such systematic failures in risk management that they place in doubt the safety culture of the entire industry."

The human and economic consequences for the victims of the spill in the Gulf region are discussed in the report, as well, and are the subject of Alliance for Justice’s recent First Monday film, Crude Justice, which details the difficult legal environment facing those seeking compensation for the damage done to their lives and livelihoods, either in the courts or through BP’s Oil Spill Liability Trust Fund.

Of particular interest is the finding by the commission that,

...oil spills cause a range of harms, both economic and environmental, to individuals and ecosystems. The Oil Pollution Act makes the party responsible for a spill liable for compensating those who suffered as a result of the spill—through property damage, lost profits, and other economic injuries—and for restoring injured natural resources. The Act also provides an opportunity to make claims for compensation from a dedicated Oil Spill Liability Trust Fund. The Oil Pollution Act, however, imposes limits on both the amount for which the responsible party is liable, and the amount of compensation available through the trust fund. In the case of the Deepwater Horizon spill, BP (a responsible party) has placed $20 billion in escrow to compensate private individuals and businesses through the independent Gulf Coast Claims Facility.

But if a less well capitalized company had caused the spill, neither a multi-billion dollar compensation fund nor the funds necessary to restore injured resources, would likely have been available.

It is critical that compensation to victims be paid in full, and that the process for receiving compensation is swift and efficient. The Commission offers recommendations that would increase assurances that responsible parties are able to compensate victims (and at the same time strengthens incentives to prevent accidents in the first place), and that the Oil Spill Liability Trust Fund provide any compensation not provided by responsible parties. It also recommends a close review of the Gulf Coast Claims Facility process to determine its effectiveness in adjudicating compensation claims and its value as a model for future Spills of National Significance.

The commission’s specific recommendations related to compensation for victims include a general need to "increase existing limitations on responsible party liability," and a call for Congress to "significantly increase the liability cap and financial responsibility requirements for offshore facilities."

Overall, the commission includes 31 recommendations in its 382-page report, covering all aspects of the disaster and its aftermath, including:

  • Improving the Safety of Offshore Operations

  • Safeguarding the Environment

  • Strengthening Oil Spill Response, Planning, and Capacity

  • Overcoming the Impacts of the Deepwater Horizon Spill and Restoring the Gulf

  • Promoting Congressional Engagement to Ensure Responsible Offshore Drilling

These comprehensive and uncompromising findings deserve the immediate attention of Congress, the regulatory agencies, and the American people so that victims of this and any future calamity can receive full compensation, and to dramatically reduce the risk that such an event will ever recur.

Supreme Court hears argument in two cases to decide if injured US citizens can sue responsible foreign companies in US courts

The Supreme Court will hear arguments today in two cases that could severely limit the ability of individuals who are harmed by defective products to seek justice in court.

Both cases address the power of state courts to exercise jurisdiction over corporate defendants.

In J. McIntyre Machinery v. Nicastro, Robert Nicastro lost four of his fingers at work in New Jersey when his hand was accidentally caught in the blades of a metal cutting machine made by J. McIntyre Machinery, a company incorporated in England. He claims the machine was missing a safety guard that could have prevented the accident. J. McIntyre sells machines, including the one that injured Nicastro, to an American distributor that it knows will sell the products in many regions of the United States, and also attends trade shows throughout the country. Despite its long history of doing business in the U.S., J. McIntyre argues that it did not know that one of its machines would end up in New Jersey and therefore that they cannot be sued for Nicastro's injuries in New Jersey courts.

In Goodyear Luxembourg Tires v. Brown, the families of two 13-year-old children from North Carolina killed in a bus accident in Paris sued several foreign affiliates of Goodyear in North Carolina after French investigators determined that faulty Goodyear tires caused the accident. The North Carolina court held that the foreign Goodyear affiliates could be sued in the state because they export at least 44,000 tires to North Carolina each year through a highly organized distribution process. The affiliates challenge the court's jurisdiction over them.

In both cases, Americans harmed by faulty products are seeking justice in our courts, and in both cases, the Supreme Court has the opportunity to affirm that international corporations can be held accountable in American courtrooms. Unfortunately, the Supreme Court's recent trend of siding with corporations over individuals could set a dangerous precedent for Americans who are injured or killed by faulty products.

A tragic anniversary marks the ongoing erosion of the rule of law

On January 11, 2002, 20 captives from the war in Afghanistan were brought to the Guantánamo Bay detention camp and one of the most ignominious chapters in our nation’s history began. On January 11 of this year, after nine years, over 170 are still there, making a mockery of fundamental principles of American justice and the rule of law.

The abuses of Guantánamo are well documented and Alliance for Justice has signed a letter with over 100 other organizations calling for the detention center to be closed and for the Obama Administration to either charge or release the prisoners held there.

Critically, the letter also calls for accountability for the crimes committed against detainees in Guantánamo or elsewhere, including torture and other violations of human rights. It is startling that in spite of significant documentation of the unconscionable and illegal abuse of prisoners, not a single American official has been held publically accountable or referred to a grand jury for prosecution. It is a sad day for the rule of law when former President George Bush can go on national television and admit to authorizing torture in direct contravention to American and international law, and not feel the slightest compunction about doing so.

We remain particularly disturbed that the lawyers who authored memoranda authorizing torture, and whose actions can only be described as a willful perversion of well-established legal principles, have escaped personal or professional responsibility for their actions. For example, John Yoo is a law professor at the University of California at Berkeley and Jay Bybee was given a lifetime appointment to the Ninth Circuit Court of Appeals. No formal action has been taken by any official entity, including the Justice Department or a court of law, to hold any of them accountable or to definitively refute the theories they propounded in the memos, which sought to manufacture a legal framework to justify Bush Administration crimes.

The anniversary we mark with sadness today is a reminder of the fragility of the rule of law and of what is at stake when that principle is ignored. It’s not too late to hold accountable many of the architects of the brutal and illegal policies of the Bush Administration. The Justice Department should appoint an independent prosecutor with a mandate to investigate torture and other crimes and to establish once and for all that we are a nation of laws and that no one is exempt from obeying them, not even the most powerful among us.

As the Guantánamo Bay detention camp enters its tenth year, not only does the fate of the remaining prisoners hang in the balance, so too do the integrity of our legal system and the soul of our nation.

The Arizona Victims

On Saturday, January 8, a gunman opened fire at a supermarket outside Tucson, Arizona. His apparent target was Congresswoman Gabrielle Giffords, who had set up a table at the supermarket to meet and talk with her constituents. The shooter is in custody, and he will face trial.

Six people were murdered and fourteen were wounded, including Congresswoman Giffords. We offer our sincerest condolences to the family and friends of the victims, and wish for a speedy recovery for the survivors. Neither the survivors nor the families of the victims will ever be the same, but all of us should do whatever we can to bring them some measure of peace and comfort, a hope that can best be served by a period of calm and reflection in the wake of this senseless act.

It is particularly disheartening that violence intruded on an event in which everyday Americans were actively participating in our great civic tradition of peacefully interacting with their elected representatives, a practice which must always remain a cornerstone of our democracy.

The victims and survivors of this tragic incident are in all of our thoughts.
  • Dorwan Stoddard, Dorothy Morris, and Phyllis Schneck were constituents who had stopped by Congresswoman Giffords’ “Congress on Your Corner” event to meet and talk with their representative.
  • Christina Taylor Green was 9 years old, and wanted to learn more about public service. She had recently been elected to her school’s student council.
  • Gabe Zimmerman was an aide to Congresswoman Giffords, and was helping at her “Congress on Your Corner” event.
  • Judge John Roll lived nearby, and decided to stop by the event after Mass to thank Congresswoman Giffords for her help with the overflow of casework facing Arizona courts.

President Obama Renominates 42 Judges

Yesterday the Alliance for Justice applauded President Obama’s renomination of 42 judicial nominees who were returned to him at the end of the last Congress. Twenty-three of the 42 nominees would fill seats that are considered “judicial emergencies” by the administrative office of the U.S. Courts, and many of the 42 nominees have the strong support of their state’s Republican senators. The Senate should quickly reprocess all of these nominees through the Judiciary Committee, and then confirm them on an expedited basis. There are currently 114 current and future vacancies to lifetime federal judgeships, so confirming these nominees would help alleviate the significant vacancy crisis in our courts.

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

Can a Corporation Be Too Big to Be Sued?

The Los Angles Times today highlighted one of the most potentially wide-ranging cases on the Corporate Court’s docket, Wal-Mart v. Dukes. The editorial provides an excellent overview of the pro-corporate legal argument the Supreme Court would have to adopt in order to rule in favor of Wal-Mart, namely, that the group of women alleging discrimination is too big to form a class action.

The case involves a class-action lawsuit against Wal-Mart, alleging that it systematically paid women less and promoted them less often than men. Wal-Mart has argued that the hundreds of thousands of women who have joined together cannot bring a class action because the class is too big and the women do not have enough in common. But the plaintiffs allege that Wal-Mart’s company-wide discriminatory systems of compensating and promoting employees makes a class action appropriate.

The LA Times calls Wal-Mart's argument a "bold attempt to persuade a conservative Supreme Court to dramatically narrow the criteria for determining what a class is" and warns that "[i]f Wal-Mart succeeds, victims of discrimination in future cases will find it much more difficult to pursue justice."

A majority of the U.S. 9th Circuit Court of Appeals found that it was reasonable in this case to regard all female employees as a class. Writing for the majority, Judge Michael Daly Hawkins cited a finding by a lower court that Wal-Mart's system for compensating and promoting employees was sufficiently similar across regions and stores to raise issues "common to all class members." The dissenters ridiculed that notion, with Chief Judge Alex Kozinski saying that members of the proposed class "have little in common but their sex and this lawsuit."

But the majority got it right. Referring to the court's estimate of 500,000 female Wal-Mart employees, Judge Susan P. Graber wrote in a concurring opinion: "If the employer had 500 female employees, I doubt that any of my colleagues would question the certification of such a class." In other words, Wal-Mart's size shouldn't immunize it to a lawsuit that otherwise meets legal standards.

Underlying the dispute about the contours of a class is a more general question: Should civil rights laws be interpreted liberally, or should courts adopt narrow interpretations that close the courthouse door to victims of bias? A victory for Wal-Mart would represent the triumph of the latter view.
The full editorial is available here.

Chief Justice Roberts Calls for Ending the Blocking of Judicial Confirmations

In his annual year-end report on the federal judiciary, Chief Justice Roberts called for increased judicial confirmations, writing that a "persistent problem" in confirming judges has caused some courts to become "burdened with extraordinary caseloads." Though he did not cite any statistics in his report, Chief Justice Roberts was referring to the fact that there are currently 110 vacancies for lifetime federal judgeships, 44 of which are considered "judicial emergencies" by the Administrative Office of the U.S. Courts.

These numbers are all the more striking because they have more than doubled since the beginning of President Obama's term in office, when there were only 55 vacancies and 20 judicial emergencies. Obama's experience stands in stark contrast to Presidents Bush and Clinton, both of whom were able to significantly reduce the number of judicial vacancies that they inherited by the end of their first two years in office.

For the most up-to-date and comprehensive information on judicial nominations, visit Alliance for Justice's Judicial Selection Project website.