Supreme Court to Hear Oral Arguments on Accountability for Detaining Citizens on Phony Grounds

The Supreme Court will hear oral arguments this week in Ashcroft v. Al-Kidd, a case concerning an American citizen detained for more than two weeks in harsh conditions on the specious grounds that he was a material witness.

Abdullah Al-Kidd is an American-born United States citizen and convert to Islam who lives in Idaho. The FBI targeted Al-Kidd and his wife for surveillance and interviews during a broad terrorism investigation in the state following the attacks of September 11, 2001. The investigation revealed no evidence of wrongdoing by Al-Kidd or his wife. However, FBI agents arrested him on a material witness warrant related to an investigation of another person, and took him into custody. Following several interrogations without counsel, Al-Kidd was held for 15 nights in jails in three states with hardened criminals, and transported aboard a “Con Air” flight in which he was held in full shackles. He was never used as a material witness – the pretext under which he was originally arrested.

Al-Kidd sued former Attorney General John Ashcroft for ordering his wrongful detention. He argues that neither the absolute nor qualified immunity sometimes afforded government officials is appropriate in this case because Ashcroft’s use of a material witness warrant was merely a pretext to submit Al-Kidd to preventative detention. The Ninth Circuit ruled in favor of Al-Kidd and Ashcroft appealed the decision.

If the Supreme Court rules in Ashcroft’s favor, it will enable government officials to circumvent fundamental constitutional protections by detaining individuals indefinitely without access to an attorney simply by claiming they are needed as material witnesses.

Oral arguments are scheduled for Wednesday, March 2.

A Call for Supreme Court Ethics Reform

There have been dozens of stories written in the past few weeks about whether or not several Supreme Court justices have been upholding the high ethical standards we expect of our nation's highest court. The reports have looked at the justices’ participation in political activities and fundraising events, as well as questions related to whether justices should recuse themselves -- or should have recused themselves -- from cases before the Court.

Disturbed by these accounts, 107 law professors from 76 law schools all across the country have come together to voice their concern and suggest solutions. In an open letter to the chairmen and ranking members of the House and Senate Judiciary Committees, the professors lay out weaknesses in the ethics rules and recusal process governing Supreme Courts justices, and propose reforms, including that the justices be made subject to the same mandatory code of conduct that governs all other federal judges.

The law professors' letter is not just a wake-up call; it's also a starting point. This unbiased, non-political, diverse group of experts came together to propose a common-sense solution aimed at bringing more transparency to the Court and restoring public confidence in its deliberations and decisions.

The letter recommends four concrete reforms:
  • Apply the Code of Conduct for United States Judges to Supreme Court justices;
  • Establish a set of procedures to enforce the Code’s standards as applied to Supreme Court justices;
  • Require a written opinion when a Supreme Court justice denies a motion to recuse; and
  • Determine a procedure, or require the Court to do so, that provides for a review of a decision by a Supreme Court justice not to recuse himself or herself from a case pending before the Court
The letter, along with news articles and other resources on Supreme Court ethics, can be found online at the Alliance for Justice website.

Tell Congress: Act Now on Judicial Ethics


 We expect our courts to be impartial and independent – it’s essential to the public’s faith in the judicial system. That’s why federal judges must adhere to a Code of Conduct that requires judges to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” and explicitly bans political activity.

Shockingly, these rules do not apply to the Supreme Court.

Likewise, when it comes to deciding whether or not to sit on a case in which his or her impartiality has been called into question, a Supreme Court justice accused of bias has the final say – there’s no consultation, no explanation, and no appeal.

Protecting against even the appearance of bias is particularly important for the Supreme Court, as its justices are subject to the most public scrutiny and their decisions have the widest impacts. Recent activities by Supreme Court justices have called their impartiality and independence into question, undermining public confidence in our highest court.

Tell Congress to hold hearings on judicial ethics. It’s high time that justices of the Supreme Court had to follow the same ethical rules as every other federal judge.

More than 100 ethics and professional responsibility law professors have signed a letter to the House and Senate Judiciary Committees, calling for Congressional hearings to examine this issue and for legislation that would close the gap between the ethical standards applied to lower court judges and Supreme Court justices. Click here to learn more about Supreme Court ethics reform.

Supreme Court justices should not be above ethical rules. Join us and tell your representatives in Congress that the same rules that apply to all other federal judges should apply to Supreme Court justices!

Justice Department Won't Fight for DOMA

Yesterday, President Obama announced that the Department of Justice would no longer defend against legal challenges to the discriminatory Defense of Marriage Act (DOMA). It’s an acknowledgment of what many already knew: that DOMA is unconstitutional and un-American. On its own, that’s a big step for equality in this country

But it also means government lawyers will no longer spend time or taxpayer money fighting to keep millions of Americans from having the right to marry. The effort put into upholding DOMA was a stain on the American legal system, and its end marks a turning point in the fight for equality.

The law is still on the books, and the fight to end legalized discrimination in America will continue, but yesterday’s decision is an important victory.

Supreme Court Allows Seatbelt Lawsuits to Go Forward

The Supreme Court held today in Williamson v. Mazda that a federal regulation requiring car manufacturers to install either lap-only seatbelts or lap-and-shoulder seatbelts does not preempt state tort suits claiming that the manufacturer should have chosen a lap-and-shoulder seatbelt. Thanh Williamson’s family sued Mazda in state court after she died from severe abdominal injuries and internal bleeding in a car accident when her body jackknifed around her lap seatbelt.

The court distinguished this case from a 2000 decision – Geier v. Honda – which held that a regulation requiring manufacturers to use either airbags or passive restraints was found to preempt claims for failure to use airbags. Justice Stephen Breyer’s opinion states that the choice in Geier, unlike the choice given to manufacturers in this case, was given in order to further “significant regulatory objectives.” In addition, the solicitor general opposed preemption in this case but supported it in Geier. As a result, the court held that the state tort claim does not conflict with the federal regulation and is not preempted.

Supreme Court Sides With Corporations and Rules Against Individuals Injured by Poorly Designed Vaccines

The Supreme Court ruled yesterday in Bruesewitz v. Wyeth that the National Childhood Vaccine Injury Act (NCVIA) prevents individuals from suing vaccine manufacturers in state court for injuries arising from design defects in vaccinations. The law protects vaccine manufacturers from side effects that are unavoidable, but not all defects. The plaintiffs sued because their baby suffered seizures and became permanently injured after being injected with a vaccine that has since been altered.

The Supreme Court upheld the Third Circuit’s ruling that the plaintiffs' claims were preempted by the NCVIA. As in Riegel Medtronic, Inc. (2008), the court again used the preemption doctrine to creatively interpret statutory language in a way that prevents average Americans harmed by corporations from getting their day in court.

In her dissent, Justice Sotomayor stated that the statute should allow plaintiffs to sue a manufacturer in state court on the grounds that a safer vaccine design would have prevented the harm suffered. She argued that “the majority’s interpretation does considerable violence to the statutory text.” The dissent added that the majority “imposes its own bare policy preference over the considered judgment of Congress” and, in doing so, “excises 13 words from the statutory text, misconstrues the Act’s legislative history, and disturbs the careful balance Congress struck between compensating vaccine-injured children and stabilizing the childhood vaccine market.” The majority decision in this case exonerated a corporation that decided against a safer, more modern vaccine design because it did not see the economic benefit of making the change.

Raising the Price of Justice

Late last week, the House of Representatives passed a budget amendment that has serious ramifications for access to justice in America.

The Equal Access to Justice Act (EAJA) provides some reimbursement for court costs incurred when individuals, small businesses, or certain non-profits successfully use the courts to hold the government accountable for an illegal action. As of 2009, most of those reimbursed by EAJA have been involved in Social Security and Veterans Affairs cases.

Now, the House of Representatives, led by Rep. Cynthia Lummis (R-WY) has voted to stop repaying those legal fees.

EAJA only applies to individuals and groups that are successful in their cases against the government, and who fall below a certain net-worth ceiling. Without EAJA, many of those people would have no hope of affording the sometimes lengthy and always expensive court battles to get justice.

Alliance for Justice lobbied for the Equal Access to Justice Act when it was proposed. EAJA was first a short-term experimental provision, which was later made permanent through a bill sponsored by Senators Grassley (R-IA), Domenici (R-NM), and De Concini (D-AZ).

Letters to the New York Times on Supreme Court Ethics

This weekend, the New York Times ran a letter from AFJ President Nan Aron, responding to recent discussions of ethics on the Supreme Court.

We agree that justices needn’t live like “monks,” but the meetings attended by Justices Antonin Scalia and Clarence Thomas organized by the Koch brothers weren’t high-minded social events. Their purpose was to solicit and direct millions of dollars from wealthy donors to influence elections.

Not only did the justices lend the prestige of their office to an overtly political event, but they also interacted directly with individuals and corporations with interests before the court, and did so in a setting whose entire purpose is to influence political outcomes.

You can read the rest of the letter, plus more letters on the same topic here.

BP Responds to GCCF Claims Methodology

Today’s New York Times reports that BP has weighed in on the proposed claim and compensation methodology set forth by the Gulf Coast Claims Facility. The proposal outlines the steps and methods GCCF will use to determine how much to compensate the people who were harmed by BP’s Deepwater Horizon oil spill.
The oil giant is arguing that if anything, Mr. Feinberg’s proposed settlements are too generous. The planned payments far exceed the extent of likely future damages because they overstate the potential for future losses, the company insists in a strongly worded, 25-page document that was posted on the fund’s Web site Thursday morning.

Basing its estimates on much of the same data Mr. Feinberg used, the company concluded that there was “no credible support for adopting an artificially high future loss factor based purely on the inherent degree of uncertainty in predicting the future and on the mere possibility that future harm might occur.”
BP has pledged a fund of $20 billion to compensate the victims of their oil spill. Feinberg has famously estimated that the GCCF will pay out only $10 billion in claims. Now it seems that BP is putting pressure on Feinberg and the GCCF to pay out as little as possible, disregarding arguments for a more cautious, fair, and transparent approach.

AFJ also analyzed the GCCF’s proposed methodology, and found that, contrary to BP’s claims, it does not contain sufficient provisions to protect the rights and interests of the spill victims.
AFJ applauds GCCF for taking the step of releasing its methodology to promote greater transparency in the claims process. We take this opportunity to suggest a number of improvements that should be made to better protect claimants’ rights. Namely, because the projection of when the Gulf will fully recover is inherently speculative, the methodology should include a mechanism to address harms greater than those forecasted in the projection relied upon by GCCF. Moreover, the methodology should more clearly inform claimants of the documentation requirements, causation standard, and eligibility criteria GCCF will use in administering claims. Finally, going forward there needs to be more transparency in the way the methodology is applied to individual claims.
You can read our entire analysis and our recommendations online. You can also view other recommendations received by the GCCF on their website.

AFJ’s award-winning short film, Crude Justice, explores many of the legal issues Gulf Coast victims face as they fight for justice in a system that often seems dominated by corporate interests. You can now watch Crude Justice on YouTube.

Obama Nominates Two District Court Judges, Four Other Nominees Sent to the Senate Floor

Last night President Obama nominated two more judges to the federal bench. Judge Timothy M. Cain was nominated to the United States District Court for the District of South Carolina, and Judge Scott W. Skavdahl to the United States District Court for the District of Wyoming. Mr. Cain currently serves as a Family Court Judge in South Carolina's Tenth Judicial Circuit, and Mr. Skavdahl is a United States Magistrate Judge for the District of Wyoming.

This morning the Senate Judiciary Committee considered nominees and sent four to the full Senate for a vote:
  • Sue E. Myerscough and James E. Shadid, nominees to the United States District Court for the Central District of Illinois, were reported out on a unanimous voice vote.
  • Susan Carney, nominee to the United States Court of Appeals for the Second Circuit, was reported out on a 16-2 vote
  • Michael H. Simon, nominee to the United States District Court for the District of Oregon, was reported out on a 14-4 vote.
The committee also held over a vote on the nomination of Mae D'Agostino to the United States District Court for the Northern District of New York.

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

Gulf Coast Claims Methodology Needs Changes

As part of its ongoing effort to promote justice for the individuals struggling to recover from the Deepwater Horizon oil spill, Alliance for Justice has sent recommendations to the Gulf Coast Claims Facility (GCCF) on the proposed methodology for processing claims and calculating damages.

Many Gulf Coast claimants face tough legal and procedural difficulties as they fight for fair compensation for their losses, and AFJ’s analysis has found that GCCF’s proposed methodology does not adequately protect residents’ rights. We found numerous ways in which the methodology needs to be improved if it is to offer a fair and transparent process for Gulf Coast residents.

Some of the problems AFJ recommends be addressed in the methodology are:
  • The methodology relies upon an unreliable and inherently speculative projection of when the Gulf will recover.
  • The methodology should better inform claimants of the specific documentation and eligibility standards used by GCCF.
  • GCCF’s proposed methodology does not explain how GCCF will handle some of the claims BP is required to pay under the Oil Pollution Act of 1990, such as subsistence use claims for residents who rely on seafood for subsistence.
  • The methodology’s underlying assumptions and the GCCF’s processes need to be more open, transparent, and free from corporate influence.
  • GCCF’s proposed methodology calculates economic loss based on 2008 and 2009 figures, despite the fact that those years represent a low point in the US economy.
A PDF of AFJ’s analysis and full set of recommendations can be found here.

Alliance for Justice Joins 75 Organizations to Call on Senate to Return to "Regular Order" on Judicial Nominations

Alliance for Justice has joined with a diverse coalition of 75 other organizations in signing an open letter to Senate Majority Leader Harry Reid and Minority Leader Mitch McConnell, urging the Senate to return to “regular order” and permit swift confirmation votes on President Obama’s judicial nominees.

The letter decries the persistent pattern of obstruction in the last Congress that “led to the lowest percentage of a president’s nominees being confirmed at this point in his presidency than any president in American history.”

The 76 groups signing the letter represent a wide range of constituencies and reflect growing concern throughout American society about the crisis in the courts and the threat to the viability of the judicial system posed by unfilled judicial vacancies. Among the organizations speaking out are the National Resources Defense Council; The Wilderness Society; the Sierra Club; Human Rights Campaign; the Brady Campaign to Prevent Gun Violence; AIDS United, Communications Workers of America and Service Employees International Union.

Senate leaders have promised a new spirit of compromise and cooperation during the recent debates over rules reform. Although the Senate has confirmed 5 nominees in this session, that number does not even keep pace with retirements from the federal bench announced in the last few months. President Obama has already renominated 42 nominees who were returned at the end of the 111th Congress, and the Senate has pledged to accelerate the pace of nominations in the current Congress.

A PDF copy of the letter is available here.

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

Senate Confirms Two Judges

Tonight the Senate confirmed James Graves Jr. to the United States Court of Appeal for the Fifth Circuit on a voice vote, and Edward Davila to the United States District Court for the Northern District of California by a vote of 93-0.

Judge Graves is the first African American from Mississippi to serve on the Fifth Circuit, which hears cases from Mississippi, Louisiana, and Texas. Judge Davila is the second Latino judge (and the only active Latino judge) to serve on Northern District of California, which encompasses much of the California coast from the Oregon border down to Monterrey.

The Senate has now confirmed five judges during the 112th Congress. There are six nominees awaiting votes on the Senate floor, and four more nominees will likely be reported out of the Judiciary Committee to the floor tomorrow morning.

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

Taking Judicial Vacancies Seriously

During the first two years of President Obama’s term, an attitude has developed that the president’s nominees are routinely stalled or filibustered in the Senate, and that there’s nothing that can be done about it. To be sure, the Republican minority in the Senate has launched an unprecedented number of filibusters, and has run out the clock on dozens of nominees. But that’s only part of the story.

In today’s New York Times, Jonathan Bernstein looks at whether there’s more that the Obama Administration could be doing.
For one thing, the president has named only nine judges for the 17 appeals court vacancies and only 41 judges for the 85 open district court seats. That’s significantly fewer nominations than Presidents George W. Bush or Bill Clinton had sent to Congress by this time in their first terms.

Moreover, unlike President Bush, President Obama has not used his bully pulpit to push for Senate confirmation of his nominations. Fairly or not, President Bush regularly lambasted Democrats for blocking an “up or down” vote on his nominees. Yet for all the recent chatter about a Republican-fueled judicial crisis, the president rarely speaks about the issue in public, and he didn’t mention it in his recent State of the Union address.
Of course, even if President Obama follows this course, there's no guarantee that more judgeships will be filled. Bernstein goes on to highlight ways the Senate’s Democratic majority could smooth the confirmation process and overcome Republican obstruction, and reminds us that Republicans in the Senate were nearly indiscriminate in their efforts to block nominees.

Republicans in the Senate should uphold their new commitment to comity by allowing regular votes on nominees. During the last two years, Republicans have regularly used procedural tactics, secret holds, and threats of filibusters to stall, block, or derail dozens of qualified nominees.

Bernstein’s op-ed is a reminder that everyone – Senate Democrats, Republicans, the White House, judges, lawyers, reporters, and the general public – needs to take a more active interest in the growing crisis in the judiciary.

You can read the entire piece here.

Will the Court Decide ACA's Constitutionality On a Party-Line Vote?

Harvard Law School professor Laurence Tribe wrote an op-ed in the New York Times yesterday rejecting the claim that the Supreme Court will overturn President Obama's health care reforms by a 5-4 party-line vote. Professor Tribe states that the conscious choice to opt out of carrying health insurance does indeed have a profound impact on the nationwide health care market, which puts it well within the established bounds of the Constitution's Commerce Clause:

The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab.
Tribe argues that consistent court precedent since the New Deal has given Congress broad constitutional power to regulate interstate commerce and that it is an insult to the Court to assume that the conservative justices will ignore clear precedent for partisan reasons.

As Judicial Vacancies Rise to Crisis Levels, the Senate Confirms Three District Court Nominees, the First of the 112th Congress

This morning’s Washington Post ran a front page, above-the-fold article entitled "Federal judicial vacancies reaching crisis point." The Post reported that "Federal judges have been retiring at a rate of one per week this year, driving up vacancies that have nearly doubled since President Obama took office. The departures are increasing workloads dramatically and delaying trials in some of the nation's federal courts."

The article contains several notable quotes from judges in overburdened districts. Chief Judge Roslyn O. Silver of the District of Arizona—which was declared a judicial emergency several weeks ago—described a "dire situation" in her district. Similarly Chief Judge Michael McCuskey of the Central District of Illinois said that he "had a heart attack six years ago, and my cardiologist told me recently, 'You need to reduce your stress.' I told him only the U.S. Senate can reduce my stress" by confirming more judges in his district. Additionally, the Chief Judge of the Ninth Circuit Court of Appeals, Alex Kozinski, said that as litigants have to wait up to three years in resolving discrimination claims, corporate disputes and other lawsuits, "people will lose faith in the rule of law. We as a nation believe that if you have a dispute, you go to court and within a reasonable period of time, you get a decision." Judges Silver and McCuskey are Clinton appointees and Judge Kozinski is a Reagan appointee. The article also quotes White House Counsel Bob Bauer, responding in part to the article's criticism that the Administration has been slow in making judicial nominations. Bauer says that the courts face "a severe problem," and that the White House will move nominees "at a very steady clip... We will use all the resources at our disposal to bring attention to the issue and work on a bipartisan basis."

Last night the Senate took a promising first step in returning to regular order on judicial nominees by confirming its first three judges: Paul Holmes to the United States District Court for the Western District of Arkansas by a vote of 95-0; Diana Saldana to the United States District Court for the for the Southern District of Texas by a vote of 94-0; and Marco Hernandez to the United States District Court for the for the District of Oregon by unanimous consent. Eight other nominees—all of whom were reported out of the judiciary committee without opposition—are also pending on the Senate calendar and should be confirmed without delay.

The full Post article is available here

CCR Files Indictment Against Bush Under International Anti-Torture Law

The Center for Constitutional Rights (CCR), an Alliance for Justice member organization, and the European Center for Constitutional and Human Rights (ECCHR) yesterday released a 42-page indictment [PDF link] against President Bush, making the case for his indictment under the Convention Against Torture (CAT).

The groups had planned to file the document as an individual criminal complaint with the Swiss authorities in anticipation of the former president’s trip to Switzerland, but did not do so due to Bush canceling his trip the night before the complaint was to be filed. Instead, the groups released the document as an “indictment,” modifiable for future use in other countries. The document sets forth the “fundamental aspects of the case against him, and a preliminary legal analysis of liability for torture, and a response to anticipated defenses.”

Alliance for Justice applauds and supports these groups’ efforts to achieve accountability for torture.

President Bush Cancels Trip to Switzerland in Face of Possible Prosecution for Torture

It was recently announced that President Bush has canceled his upcoming trip February 12 trip to Switzerland, following a request by human rights organizations that the Swiss Justice Ministry open a criminal investigation into the former president based on his recent admission that he ordered the waterboarding of terrorist suspects. The groups argued that under the UN Convention Against Torture and domestic law, Swiss authorities were obligated to undertake investigation into acts of torture ordered by any individual on Swiss territory – including heads of state.

The Washington Post has more on the story here.

Despite the extensive documentation that senior Bush administration orchestrated, ordered, and justified torture - including President Bush’s admission in his recent memoir, the United States has yet to undertake any effort to hold these officials accountable. AFJ’s short film, Tortured Law, examines the role that Office of Legal Counsel lawyers played in authorizing torture and calls for a full-scale investigation into their actions by the Department of Justice. The Alliance for Justice believes that accountability is essential to regaining our nation’s stature as a leader in promoting human rights and the rule of law, as well as to ensuring that this sort of miscarriage of justice never recurs.

Judge Holds that Feinberg and GCCF Are Not Fully Independent of BP

Yesterday, Judge Carl Barbier, who is overseeing the Gulf oil spill litigation against BP, held that Gulf Coast Claims Facility (GCCF) and its administrator, Ken Feinberg, are not fully independent of BP. As such, the Court held that GCCF must abide by certain limitations when communicating with people who might have claims against BP and other potentially liable parties.

BP hired Feinberg to discharge its statutory duty to process claims for damages under the Oil Pollution Act (OPA). Judge Barbier wrote that in this sort of third-party arrangement, transparency is essential. The administration of the $20 billion trust fund has been plagued by criticisms that it is not sufficiently consistent and transparent. The Court noted that Feinberg and GCCF’s hybrid role has led to “confusion and misunderstanding by claimants, especially those who are unrepresented by their own counsel,” and that GCCF’s claimed independence and neutrality constitutes a “direct threat” to the legal challenge currently underway against BP.

Judge Barbier set forth a number of specific restrictions GCCF must abide by in communications with claimants, such as refraining from claiming to be “neutral” or “independent,” prominently disclosing the fact that individuals have a right to consult with an attorney, and telling claimants that they can join the litigation against BP if they decline to accept a settlement through GCCF.

In the order, Judge Barbier also indicated that he will soon issue a ruling on the broader question of whether BP is fully complying with OPA. Such a ruling could address whether several GCCF policies run afoul of the law, such as the requirement that individuals sign a release of liability in order to receive a final payment, and the methodology used to evaluate claims. Under the current GCCF protocol, to receive a final payment, claimants must give up their right to sue more than 100 named entities in addition to BP and must even waive claims not subject to OPA – provisions that have been criticized as overly broad. Judge Barbier wrote that “whether or not seeking such broad releases is appropriate, the GCCF is clearly acting to benefit BP in doing so.”

The ruling came after lawyers for individuals pursuing claims against BP in court, as well as Attorneys General from Mississippi, Louisiana, and Florida filed motions arguing that serious deficiencies in the handling of GCCF necessitated judicial oversight. The process has been criticized as not being sufficiently transparent, with inadequate explanation provided as to whether and at what amount claims are paid. Many claimants have also complained of apparent inconsistencies in the way claims are valued. Some have argued that GCCF is interpreting OPA too narrowly and is not adequately paying claims that would be recognized in court, such as subsistence claims for those who live off of damaged resources, and claims for punitive damages. Most recently, GCCF’s projection that the region will largely recover by 2011 has raised ire amongst the Spill’s victims.

Alliance for Justice’s short film, Crude Justice, explores many of the issues currently being raised by the legal process unfolding in the Gulf. The film and additional resources, including Judge Barbier’s ruling, can be found at

Crude Justice from Alliance for Justice on Vimeo.

Tea Party Judge Strikes Down Affordable Care Act in Sweeping Decision

On Monday, Judge Roger Vinson, a Reagan appointee, struck down the Affordable Care Act. The New York Times today published an editorial condemning Judge Vinson’s decision to find the entire health care bill unconstitutional as "a breathtaking example of judicial activism and overreach." When judges strike down part of a law as unconstitutional, the traditional practice is to issue a ruling as narrowly as possible, leaving intact parts of the law that do not raise constitutional concerns. Yet with reasoning that the New York Times characterized as "stretched past the breaking point," Judge Vinson invalidated the entire law after finding that the individual mandate was unconstitutional.

In his ruling, Judge Vinson wrote that the law "has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed." Yet his broadly-constructed ruling struck down all 450 pieces.

In finding that the individual mandate was not severable from the rest of the Act, Judge Vinson’s reasoning used language nearly identical to that of an amicus brief submitted by the Family Research Council, an organization the Southern Poverty Law Center has classified as a hate group because of its defamation of gays and lesbians. Vinson's opinion also gave a nod to the conservative Tea Party movement, writing that "a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place."

Of the challenges to the Affordable Care Act to be decided on the merits so far, the outcomes have broken along partisan lines, with two Republican-appointed judges finding the law unconstitutional and two Democrat-appointed judges upholding it.

This case demonstrates what Alliance for Justice has long espoused: progressives need to care about who sits on the federal bench. Ideologically-driven judges like Vinson have proven themselves all too willing to dismantle hard-fought pieces of legislation like the Affordable Care Act in order to advance a political agenda from the bench. We need fair and independent judges who will not twist the law to advance a right-wing agenda and favor powerful interests over everyday Americans.

There are currently 48 judicial nominees pending before the Senate and over 100 judicial vacancies. But obstructionist Republicans in the Senate have been bent on preventing President Obama from filling these vacancies, even in those courts facing "judicial emergencies." Judge Vinson’s decision is a stark reminder that the fate of the President's agenda, as well as many other important laws and policies, will be decided in the courts. It is time for those who care about health care, civil liberties, consumer protection, worker rights, and other issues that go to the core of our democracy, to get serious about the courts and work to ensure that President Obama's judicial nominees are confirmed.

White House Counsel Seeks Up or Down Votes on Obama Nominees

Yesterday White House Counsel Bob Bauer called on the Senate to allow a vote on President Obama’s judicial nominees in order to address the growing judicial vacancy crisis. At a forum sponsored by the American Constitution Society, Bauer called the current rate of confirmations "perilously low" and stated that the Senate's failure to fill vacancies is overwhelming court dockets in a way that threatens the quality of justice.

Currently, 101 of the 875 federal judgeships in the United States are vacant. Bauer stated that more than half of the jurisdictions with a vacancy have been declared judicial emergencies because the court cannot handle its current caseload. He argued that the vacancies result in "egregious delays for Americans seeking their day in court around the country."

Bauer blamed Senate rules that allow individual senators to wage a political "cold war" to avoid an up-or-down vote on Obama's nominees. He argued that a senator's personal preference for a different nominee is insufficient justification for denying the president's nominee a vote, and that senators who engage in delaying tactics should pay a greater political price for doing so. Bauer lamented the lack of political accountability for senators, stating that "the costs have become bearable" and that "the loss of the quality of justices has somehow come to seem not to matter."

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