Harmful Repercussions of Corporate Court’s Wal-Mart Ruling Just Getting Started

Last week the Michigan Messenger reported that a Michigan judge cited Wal-Mart v. Dukes in a decision denying class certification for plaintiffs suing Dow Chemical. The plaintiffs claim that a Dow plant released dioxin, a highly toxic carcinogen, into local rivers and lakes. The trial judge in the case previously approved class certification for local residents but stated that Wal-Mart required him to reverse his ruling.

As AFJ noted in a report reviewing the Corporate Court’s 2010-11 term, polluters are not the only corporate defendants cheering the Wal-Mart ruling. African American, Latino and female employees alleging discrimination on the part of retailer Best Buy were forced to agree to an early settlement, fearing a pro-corporate ruling after the Wal-Mart decision. A lawsuit against Costco that was held up pending the Court’s ruling will face much tougher sledding despite strong statistical evidence.

Wal-Mart could also threaten the viability of pending gender discrimination class actions against Goldman Sachs, Toshiba, and Cigna. In addition, mortgage lenders accused of defrauding borrowers could enjoy a stronger shield against accountability.    

Click here to download AFJ’s special report on the Wal-Mart v. Dukes case or click here to download AFJ's analysis of the Corporate Court’s 2010-11 term.

Senate Judiciary Committee Holds Over Votes on Five Nominees, Indefinitely Delays Vote on One

This morning, at the request of committee Republicans, the Senate Judiciary Committee held over votes on five nominees: Morgan Christen, nominee to the United States Court of Appeal for the Ninth Circuit; Scott W. Skavdahl, nominee to the United States District Court for the District of Wyoming; Sharon L. Gleason, nominee to the United States District Court for the District of Alaska; Yvonne Gonzalez Rogers, nominee to the United States District Court for the Northern District of California; and Richard G. Andrews, nominee to the United States District Court for the District of Delaware. Those five nominees may be considered at the committee's next business meeting.

Since President Obama took office, committee Republicans have held over votes on every one of his judicial nominees, regardless of qualification, in an effort to delay filling vacant judgeships.

The committee once again delayed a vote on the nomination of Steve Six to the United States Court of Appeal for the Tenth Circuit.

As a result of Republican obstructionism, there are now 114 vacancies in the federal judiciary. Twenty-five nominees are awaiting confirmation votes on the Senate floor, 23 of whom were reported out of committee either unanimously or with strong bipartisan support. Thirteen of these nominees would fill seats considered to be judicial emergencies by the administrative office of the U.S. Courts.

Senator McConnell should stop blocking votes on these nominees, and the Senate should confirm them without delay. Join Alliance for Justice in calling on McConnell and Majority Leader Harry Reid to schedule votes immediately.

The Affordable Care Act Reaches the Supreme Court ... Again

The Thomas More Law Center – a tax-exempt, right-wing litigation group notable for its assaults on reproductive choice, LGBT rights, and Islam – has brought its challenge to the Patient Protection and Affordable Care Act to the Supreme Court. The Center was dealt a major blow last month when a Sixth Circuit Court of Appeals panel led by Judge Jeffrey Sutton, one of the most conservative George W. Bush appointees and a law clerk to Justices Lewis Powell and Antonin Scalia, upheld the health-care law by a 2-1 vote.

While the challenge is the first following an appellate court decision, the Supreme Court has already declined to hear prior direct appeals from lower court decisions upholding the Affordable Care Act.

The Sixth Circuit rejected the plaintiff’s argument that the Affordable Care Act “regulates inactivity,” and held that the law was within Congress’ Commerce Clause authority. Judge Sutton’s lead opinion is especially crucial, as he was known as “the leading advocate in private practice of the federalism revolution” before joining the federal bench, and might catch the attention of the prevailing conservative bloc on the Supreme Court. He was also the first Republican-appointed judge to rule in favor of the Affordable Care Act.

It is common practice for the Supreme Court to await divided circuit court decisions on a law before hearing a case. However, given the importance of the Affordable Care Act and the likelihood of further appellate court rulings in the coming weeks and months, the Court may take an early opportunity to resolve the important questions raised by the health-care litigation.

Senate Judiciary Committee Holds Hearing on Five District Court Nominees

This afternoon the Senate Judiciary committee held a hearing on the nominations of Edgardo Ramos, Andrew L. Carter, Jr., and Jesse M. Furman to the United States District Court for the Southern District of New York, James Rodney Gilstrap to the United States District Court for the Eastern District of Texas, and Jennifer Guerin Zipps to the United States District Court for the District of Arizona.

Judge Zipps was nominated to fill the seat of the late Judge John Roll, who was tragically killed in the January shooting spree targeted at Representative Gabrielle Giffords (D-AZ).

Arizona currently has three judicial vacancies, and the entire state has been declared a “judicial emergency” due to the lack of judges. Senator Jon Kyl (R-AZ) thanked the Judiciary Committee’s Chairman, Senator Patrick Leahy (D-VT), for adding Judge Zipps to today’s hearing, even though she had not been scheduled to appear.

Senator Leahy deserves praise for processing nominees through the Judiciary Committee in a timely manner.   Despite the committee’s swift action on nominees, the full Senate is not confirming nominees fast enough, and there are now 114 current and future vacancies in the federal courts, the same amount as there were at the beginning of the year.

Representative King Holds Yet Another Muslim Radicalization Hearing

- Lauren Humphrey

Today Congressman Pete King (R-NY) held his third hearing on Islamic radicalization in the United States. Specifically, this hearing focused on al Shabaab, the Somalia-based terrorist group closely associated with al-Qaeda. Al Shabaab has recruited Muslim youth in such states as Minnesota and Ohio.

The panel included Ahmed Hussen, President of the Canadian Somali Congress; Thomas Joscelyn, Senior Fellow at the Foundation for Defense of Democracies; William Anders Folk, Former Assistant United States Attorney for the District of Minnesota; and Tom Smith, Police Chief in Saint Paul, Minnesota.

Rep. King insisted that his series of hearings, narrowly focused on the threat of Islamic terrorists, were necessary, as “only one threat has killed more than three thousand Americans.” He chastised “the vacuous ideologues at the New York Times” and other “elements of the politically correct media” for noting that in light of the recent bombing in Norway, these hearings should not focus on Islamic radicalization. “I will continue to hold these hearings so long as I am the Chairman of this Committee,” he stated.

Ranking Member Bennie Thompson (D-MS) asked the committee to “remember how our words reverberate beyond this room.” He expanded on the bombing and shootings in Norway, reminding the committee that the attack was carried out by an anti-Islamic radical and “that the madness of terrorism cannot be neatly confined to any one religion, one people or one nation.”

Just as they had in the previous hearings on radicalizations, Democrats called for a broadening of the scope to include other threats of terrorism. Rep. Richmond (D-LA) also pointed out that the series of hearings was repetitive and proposed that the committee now focus on remedying the problem of radicalization.

Waterview Tower - a Phoenix?

Happy to see that Related Cos. has bought the shell of a building called Waterview Tower and hopefully has the money to complete it, albeit as a shorter building and all residential. It is also hopefully a sign of some movement on the development side. I never would have thought it would or could stay partially done for so long, which is why I should stay out of the crystal ball business, I suppose. Here's a story on the acquisition.

A proposed constitutional amendment

Again, I have taken some time away from writing here, and today I must venture back into politics again, my previous controversial comments on Sarah Palin notwithstanding.

I am sick and tired of the government - Republicans and Democrats alike - playing political games for the benefit of no one but themselves. Every fight is a game of chicken and we are the cars. The most recent is the deficit and debt ceiling debate. You want to balance the budget or come reasonably close? Warren Buffett had a good idea. These people in DC are coming off like a pack of petulant children, and it has to come to a stop for the good of this country.

Inspired by Mr. Buffett, I therefore propose the following constitutional amendment for your consideration. I know it needs refining. Please let me know your thoughts, and, if you like it, please share it with your friends:

Section 1.  Congress shall, on or before 11:59 PM Eastern Time on June 30 in any calendar year, adopt all legislation necessary pertaining to the budget for the government of the United States. No extension of time, continuing resolution or any procedure whatsoever shall substitute for the actual adoption of a budget, except as provided in this article.  If Congress fails to adopt such budget, then all members of Congress and all persons in the employ or service of the legislative branch shall serve without pay or benefits until the budget is duly adopted, with no back pay provided for members of Congress.  

Section 2.  If Congress adopts a budget where all expenditures for the United States exceed all revenues by an amount that is greater than three percent of the gross domestic product of the United States in the preceding calendar year, then all members of Congress who vote in the affirmative to adopt such budget will, following the completion of his or her current term in office or his or her resignation from office, be rendered permanently ineligible from serving as a member of Congress or working or volunteering in any capacity whatsoever in the service or employ of the United States, either with or without pay.

Section 3.  For the purposes hereof, "gross domestic product" means the market value of all final goods and services produced in the United States in any calendar year.

Section 4.  The provisions of this article will not apply to any budget adopted (a) during a time of a war actually declared by Congress until the cessation of hostilities pertaining thereto, or (b) by an affirmative vote of not less than three-fourths of the members of each of the House of Representatives and the Senate.

Section 5.  In the event the provisions of this article conflict with or are repugnant to any other provision of this Constitution, the provisions of this article will govern and control.

Section 6. The Congress shall have power to enforce and implement this article by appropriate legislation.

Senate Confirms 2 District Court Judges, Dozens of Nominees Still Await Votes

Today the Senate confirmed Paul Engelmayer to the Southern District of New York on a vote of 98-0, and Ramona Manglona to a 10-year term on the District Court of the Northern Mariana Islands on a voice vote. Both nominations were reported out of the Senate Judiciary Committee without opposition nearly four months ago.

There are now 25 judicial nominees pending before the Senate, 23 of whom were reported out of committee either without opposition or with strong bipartisan support. Despite this backlog of nominees, the Senate has only confirmed 5 judges to lifetime seats in the last 10 weeks. There has been little action despite the fact that 13 of these nominees would fill seats considered to be judicial emergencies by the Administrative Office of the U.S. Courts.

As Senator Leahy said before today's votes,

[T]hese needless delays perpetuate the judicial vacancies crisis that Chief Justice Roberts wrote of last December and that the President, Attorney General, bar associations and chief judges around the country have urged us to join together to end. The Senate can do a better job working to ensure the ability of our Federal courts to provide justice to Americans around the country.
There are now 114 current and future vacancies in the federal courts, the same amount as there were at the beginning of the year.

The American people are growing weary of the behavior of the increasingly dysfunctional Senate and are hungry for constructive bipartisan action. The judicial system is in crisis and is paying the price for endless political gamesmanship. There is no legitimate reason for preventing final votes on all pending judicial nominees before the Senate goes out on recess in August.

The Wal-Mart v. Dukes Decision: The Gift That Keeps On Giving... To Corporations

When the Supreme Court ruled in Wal-Mart v. Dukes that female employees of the retail giant couldn't form a class action to hold Wal-Mart accountable for its discriminatory behavior, it was widely seen as a victory not just for Wal-Mart, but for giant corporations across the country. The decision meant that individuals had lost a vital legal tool to level the playing field against the power of corporations in the courtroom.

This week, corporate polluters had cause to celebrate the Wal-Mart decision:

A Saginaw County judge ruled this week that a recent U.S. Supreme Court decision means that property owners in the dioxin-contaminated Tittabawasee floodplain cannot sue Dow Chemical for damages in a class action.

Operations at Dow’s Midland plant have spread dioxin — a highly toxic and cancer-causing byproduct of the chemical manufacturing process — and other chemicals,through the Tittabawassee and Saginaw Rivers and into Lake Huron. Flooding of the rivers downstream from Dow has deposited dioxin-laden sediments on properties in the floodplain.


Since 2003 a group of about 150 Tittabawassee property owners have been trying to sue Dow as a group on behalf of the more than 2,000 people with property in the floodplain.
The plaintiffs claim that they are not able to fully use their properties because of the contamination and that their properties have lost value. Dow has acknowledged that the dioxin contamination came from its operations but insists that it is not harmful to residents.

In the battle over certification of class status Dow has argued that because the level of pollution on the contaminated parcels varies, the property owners should not be treated as a group.

The Wal-Mart decision raised the bar for what could be considered a "class" and thus made it more difficult for individuals to band together to fight corporate overreach and misbehavior. Dow's lawyers took advantage of the Supreme Court's corporate giveaway, and property owners in Michigan are paying the price.

For more on the history and implications of Wal-Mart v. Dukes, see AFJ's resource page.

House Committee Passes Corporate Pardon Bill

Today the House Committee on Education and the Workforce marked up and passed H.R. 2587, which Republicans are calling the "Protecting Jobs From Government Interference Act." It might be more accurate to call it the "Corporate Pardon Bill."

Written less than 48 hours before the committee meeting, the bill specifically targets the National Labor Relations Board's ability to sanction corporations that retaliate against workers who have exercised their right to organize.

If passed into law, the bill would prevent the NLRB from regulating the relocation of corporate operations—a crucial regulatory function established by the National Labor Relations Act in 1935. The NLRB's authority to essentially "undo" retaliatory moves by corporations is one of the key ways the agency protects workers' rights and Americans' jobs.

Nearly as troubling as the bill's content is its timing: the bill directly targets ongoing litigation in which the NLRB is suing Boeing for discrimination against unionized workers. The facts of the case are being presented to an administrative law judge, where both Boeing and the workers will be given the opportunity to put forth evidence. The complaint that was registered with NLRB alleges that Boeing moved part of its operation from Washington to South Carolina in retaliation against a strike by workers at the Washington plant. H.R. 2587 becomes law, the NLRB will not be able to sanction Boeing, leaving the Washington workers without any recourse to get their jobs back.

The Democrats on the committee raised several important concerns with the bill. They argued that it would undermine workers’ rights. H.R. 2587 would take away an important remedy workers have when corporations relocate their jobs in order to avoid dealing with unions. Democrats also argued that the bill would take away the NLRB’s ability to keep corporations from sending jobs overseas. Some even questioned whether the bill was worth the committee’s time, asserting that the committee ought to be more focused on creating jobs instead of protecting corporations' ability to unfairly move jobs. Another concern was that the committee ought not to interfere with the ongoing judicial and law-enforcement process by passing this bill; doing so would be a violation of the separation of powers.

Ultimately, the majority-Republican committee voted to favorably report the bill, adding one amendment that changed the wording to clarify Congressional intent. The vote was split along party lines.

Senate Judiciary Committee Reports Out Five Nominees

This morning the Senate Judiciary Committee reported out five nominees in a unanimous, en banc voice vote. The nominees advanced to the floor were: Christopher Droney, nominee to the United States Court of Appeals for the Second Circuit; Robert D. Mariani, nominee to the United States District Court for the Middle District of Pennsylvania; Cathy Bissoon and Mark R. Hornak, nominees to the United States District Court for the Western District of Pennsylvania; and Robert N. Scola, Jr., nominee to the United States District Court for the Southern District of Florida. The committee took no action on the nomination of Steve Six to the United States Court of Appeals for the Tenth Circuit.

There are now 115 current and future vacancies in the federal judiciary, more than 1 in 7 seats

Judicial vacancies higher than at beginning of the year

The judicial vacancy crisis is worsening, and Republican obstruction is returning.

There are more current and future vacancies today (115) than there were at the beginning of the year (114). That's more than 1 in 7 seats on the federal bench.

After a few months of incremental progress, the Senate’s confirmation rate has dropped precipitously, and new vacancies have outpaced confirmations.

Fortunately, the Senate Judiciary Committee has continued to efficiently process nominees, resulting in a huge batch of nominees awaiting confirmation votes. 26 nominees are awaiting final votes on the Senate floor, 24 of whom were reported out of committee either unopposed or with strong bipartisan support. 14 of these nominees would fill judicial emergencies.

The Senate should move quickly to confirm all of these nominees prior to the August recess.

J. Paul Oetken is the First Openly Gay Man Confirmed for Federal Judgeship


Washington, D.C., July 18, 2011—Alliance for Justice President Nan Aron issued the following statement in the wake of the vote by the United States Senate to confirm J. Paul Oetken as judge for the United States District Court for the Southern District of New York:

Today marked an historic moment for the federal judiciary as, for the first time, an openly gay man was confirmed as a federal district court judge. The nomination and confirmation of J. Paul Oetken removes one of the final barriers to full and active participation of LGBT individuals in public life. Although gay men and lesbians have long served as judges, the barrier of silence and secrecy has now fallen, and highly qualified LGBT candidates for federal judgeships need no longer fear the nomination process or hide the truth of their lives.

President Obama is to be commended for continuing his effort to ensure that all Americans, without exception, have an opportunity to serve their nation from the federal bench. The President has, by far, the strongest record on diversity in his judicial nominations of any president in history, and his selection of Judge Oetken continues that trend.

Although today’s confirmation was groundbreaking, another kind of history continues to be made, however, as the judicial confirmation process has once again ground to a virtual halt in the Senate. Paul Oetken is the only lifetime judicial nominee to be confirmed during the past four weeks, leaving 21 of his colleagues languishing in an increasingly dysfunctional Senate and awaiting their final vote. Although we are overjoyed that the Southern District of New York has a brilliant new judge, the rest of America’s courts deserve the same.

* * *

BP Tries to Limit “Future Loss” Payouts to Gulf Residents

- By Dan Fligsten

BP has decided that it does not feel that those harmed by the Gulf Oil Spill deserve “future losses.” In its view, the environmental recovery efforts have been so successful that claimants are not likely to suffer any future harm from this catastrophe.

In papers recently filed with the Gulf Coast Claims Facility, BP asserted that "There is no basis to assume that claimants, with very limited exceptions, will incur a future loss related to the oil spill."

Gulf Coast residents whose livelihoods depend upon the vitality of the environment might disagree.

While it may be true that fish populations in the Gulf remain large and that seafood testing has yet to reveal any significant contamination, Chris Nelson, vice president of Bon Secour Fisheries Inc., said that the negative effects of the spill may not be detectable until marine life has passed through several generations. Indeed, after the Exxon Valdez spill, it took several years for scientists to realize that the herring population had diminished.

As reprehensible as this legal maneuver might be, it should not be surprising those who have been following BP’s attitude towards a disaster that it played a large part in causing. In its Crude Justice report, the Alliance for Justice indicated that as early as February 2011, BP began its attempt to avoid paying future damages when it argued that GCCF’s proposed formula for calculating them was too high. Now, it appears that BP has gone a step further, asserting that claimants are not entitled to any future damages at all.

Of course, with this continued effort to see that claimants are paid as little as possible, BP is simply looking out for the interests of its shareholders. Because it cannot be expected to police itself, legislators need to be encouraged to ensure that all corporations like BP are held accountable when their recklessness wreaks havoc on society and the environment.

Click here to learn more about AFJ’s efforts to ensure that victims of the Gulf Oil spill are treated fairly.

This week: Activity on judicial nominations, but still no new confirmations


The Senate Judiciary held a confirmation hearing for five nominees: Morgan Christen, to the United States Circuit Court for the Ninth Circuit; Scott W. Skavdahl, to the United States District Court for the District of Wyoming; Sharon L. Gleason, to the United States District Court for the District of Alaska; Yvonne Gonzalez Rogers, to the United States District Court for the Northern District of California; and Richard G. Andrews, to the United States District Court for the District of Delaware. Senator Hatch (R-UT) took Senator Grassley’s (R-IA) place for most of the hearing and said that he would support all of the nominees.


The Senate Judiciary Committee held an Executive Business Meeting at which five nominees were reported out, five nominees were held over, and one nominee was not voted on. Stephen A. Higginson, nominee to the United States Circuit Court for the Fifth Circuit, Jane M. Triche-Milazzo, nominee to the United States District Court for the Eastern District of Louisiana, and Katherine B. Forrest, nominee to the United States District Court for the Southern District of New York were reported out on voice votes. Alison J. Nathan, nominee to the United States District Court for the Southern District of New York was reported out on a 14-4 roll call vote with Senators Hatch, Kyl, Sessions, and Coburn voting no. Susan O. Hickey, nominee to the United States District Court for the Western District of Arkansas was reported out on a 15-3 roll call vote with Senators Hatch, Kyl, and Lee voting no.

The committee held over votes on five nominees: Christopher Droney, nominee to the United States Circuit Court for the Second Circuit; Robert D. Mariani, nominee to the United States District Court for the Middle District of Pennsylvania; Cathy Bissoon and Mark R. Hornak, nominees to the United States District Court for the Western District of Pennsylvania; and Robert N. Scola, Jr., nominee to the United States District Court for the Southern District of Florida, until next Thursday. The committee did not take any action on the nomination of Steve Six to the United States Circuit Court for the Tenth Circuit.

The Senate also approved a unanimous consent request to hold a vote next Monday on the nomination of Paul Oetken to the United States District Court for the Southern District of New York. Debate on the nomination will begin at 5:00p.m. and a vote will occur around 5:30p.m. If confirmed, Mr. Oetken will become the first openly gay man to be nominated and confirmed to the federal bench.

The vote on Mr. Oetken’s nomination will be the first for a lifetime judicial nominee since June 21st, a span of almost 4 weeks. There are 112 vacant or soon to be vacant seats on the federal bench—nearly 1 in 7 judgeships—and there are 22 nominees awaiting final confirmation votes, 18 of which were reported out of the judiciary committee either unanimously or on voice votes. There is no substantive reason to delay confirming these nominees.

Human Rights Watch to the Obama Administration: Don’t Let Torturers Get a Free Pass

- Peter Laumann

In a powerful Washington Post op-ed today, Human Rights Watch Executive Director Kenneth Roth reminds us that we cannot truly move forward as a country without holding accountable those officials who authorized and justified torture.

Republicans have continued to engage in “self-serving propaganda” by claiming that torture led us to Osama bin Laden (it didn’t), or that we can’t prosecute terror suspects in civilian courts because (inherently unreliable) evidence seized through torture is inadmissible. In his op-ed today, Roth gives two decisive reasons to reject President Obama’s equivocal “look forward, not backward” approach to torture: without accountability, there is nothing to stop torture from happening again; and not investigating and prosecuting tortures is a violation of our binding obligations under the Geneva Conventions and U.N. Convention against Torture.

Roth’s piece coincides with the release of Getting Away with Torture, a methodical Human Rights Watch Report cataloging, in painful detail, the harsh realities of the torture regime, the legal case for accountability, and what remains to be done. Unfortunately, the Obama Administration has failed to enforce the law and prosecute those who now gloat over their authorization of torture. While the investigation assigned to Assistant U.S. Attorney John Durham once carried promise, its scope was limited only to personnel on the ground who exceeded authorized interrogation techniques, rather than to those at the top who fabricated new legal doctrines to justify a clearly illegal regime of torture. Even in this severely circumscribed class of roughly one hundred cases, only two will receive a full criminal investigation from the Department of Justice.

The Convention against Torture authorizes universal jurisdiction for punishing war crimes. After waiting for the United States to follow its legal obligations, Spain initiated investigations into Bush Administration officials’ complicity in the torture regime, after its criminal case against Spanish Guantánamo Bay detainees fell apart due to the systematic abuse of prisoners at the American prison facility.

Another lawsuit filed by victims of alleged torture in Switzerland forced former President Bush to cancel his trip to the country in February.

Human Rights Watch has urged the United States to comply with its obligations through a series of targeted recommendations. These include: full pursuit of Department of Justice criminal investigations into post-9/11 interrogation and detention practices; a nonpartisan Congressional commission to use a variety of tools – including the possible appointment of a special prosecutor – to investigate mistreatment of detainees; and ensuring that victims of torture are provided adequate redress as required by the Convention against Torture.

Other countries have gone through a period of soul-searching, during which former government officials were held accountable for serious crimes. Conservatives made a national spectacle with President Clinton’s impeachment for sexual misconduct. It is time that the far more serious offense of legitimizing torture – a clear crime against humanity under binding human rights treaties and domestic law – is brought to justice through the American legal system. Alliance for Justice documented the radical justifications for torture in Tortured Law, and continues to advocate for full accountability for those officials in the U.S. government who legitimized torture.

In Making Noise Over Kagan, Republicans Gloss Over More Serious Ethical Problems

On June 24, 49 Republican representatives sent a letter to the House Judiciary Committee Chairman Lamar Smith (R-TX), requesting an inquiry into Justice Elena Kagan’s ability to rule on the constitutionality of the Patient Protection and Affordable Care Act (PPACA). In response, Rep. Smith sent a letter to Attorney General Eric Holder, demanding documents pertaining to Justice Kagan’s role in the PPACA while she served as Solicitor General.

The partisan purpose of this inquiry is exceedingly transparent: House Republicans are trying to force Justice Elena Kagan’s recusal from an expected Supreme Court hearing of the challenges to the health-care law. This is politics at its worst and shows that the radical right is prepared to use any means necessary to rig the outcome in the Supreme Court.
This is not the first attempt that has been made by Republicans to smear Justice Kagan and prevent her from hearing the much-awaited case. CNSNews, a right-wing news outfit, tried the same tactic last year when it filed a Freedom of Information Act (FOIA) with the Solicitor General’s Office demanding documents relating to Kagan’s participation in the health care legislation.
A review of the documents released by the Solicitor General in response to this request makes one thing clear: there is no evidence to suggest that Justice Kagan had any personal participation in the health-care case that would warrant her recusal. In fact, Justice Kagan has distinguished herself as being particularly interested in avoiding the appearance of impropriety, having already recused herself from over 20 cases in her first term on the bench.

House Republicans may have another motivation for these partisan inquiries directed at Kagan: they divert attention from more serious ethical problems that face the Supreme Court.

First, though Justice Kagan is not one of them, there actually are justices on the Court who have demonstrated a stubborn reluctance to recuse themselves, even when their recusal was clearly warranted. In 2004, Justice Scalia insisted on participating in Cheney v. United States, despite having a close personal relationship with the defendant More recently, reports have highlighted the involvement of Justice Thomas' wife in conservative groups that have an active interest in high-profile cases -- including the very same challenge to the health-care law anticipated by the House Republicans in their letter to Rep. Smith.

By focusing on Justice Kagan in particular, Republicans are clearly attempting to draw attention away from the justices who actually do deserve closer scrutiny. At the very least, Republicans hope to establish a "both sides do it" media narrative to make other challenges appear every bit as partisan as their own.
More important, however, these inquiries into Justice Kagan’s behavior gloss over the fundamental, non-partisan problem: Supreme Court justices are not subject to the same ethical rules as all other federal judges and are allowed to follow (or ignore) the ethical rules as they see fit. Both Justices Scalia and Thomas have shown that the self-policing requirement is inadequate. Without fundamental change to the ethical rules that pertain to Supreme Court Justices, these inquiries – whether warranted or not – will continue.

House Takes Action Against So-Called “Abusive Lawsuits"

In yet another conservative attack on everyday Americans' rights to seek justice in the courtroom, the House Committee on the Judiciary yesterday took action on a bill called the Lawsuit Abuse Reduction Act (“LARA”).

LARA’s sponsors claim that the legislation will curb "frivolous" lawsuits by imposing mandatory sanctions on lawyers who file claims and pleas that do not line up with current laws. In all but open-and-shut cases, lawyers who file suits for their clients would run the risk of violating this new law. In effect, this law would prevent civil rights litigants and consumers from bringing valid claims.

Instead of permitting a judge to use his or her discretion when imposing sanctions on attorneys who file frivolous lawsuits, LARA would force the judge to impose sanctions in every case deemed "frivolous." As a result, lawyers will expend much time and energy litigating this rule instead of arguing the merits of their cases on behalf of their clients.

Judges saw this effect during the 1980s, when Rule 11 of the Federal Rules of Civil Procedure required that judges impose mandatory sanctions on attorneys if their arguments are deemed as harassment, lacking in investigation, or otherwise frivolous. The rule was substantially relaxed in 1993, and now gives judges considerable discretion as to the nature of sanctions imposed. Moreover, studies such as the Federal Judicial Center’s Study of Rule 11 showed that Rule 11 sanctions prior to 1993 disproportionately harmed consumer and civil rights attorneys, as well as those attorneys attempting to extend the law in support of unpopular causes.

Several committee members pointed out the flaws in LARA during yesterday's hearing. In arguing that the bill would actually increase litigation, Rep. Jerrold Nadler (D-NY) called the bill "a solution in search of a problem." In an effort to prevent the bill’s adverse effects, Rep. Sheila Jackson Lee (D-TX) proposed an amendment that would give judges discretion on whether or not to impose sanctions; a majority Republican vote rejected this amendment. In a minor victory, Rep. Bobby Scott (D-VA) successfully proposed an amendment to the bill that would ensure that Constitutional claims are not subject to the new rule; Constitutional claims,Link he argued, often do not fall in line with existing law and might thus be sanctioned even if meritorious.

Ultimately, the majority-Republican committee approved the bill. You can watch a webcast of the committee’s markup here.

Commentators Agree: The Corporate Court Comes Through for Big Business

The Corporate Court concluded its 2010-11 term last week and the reviews are in. Supreme Court observers from a wide variety of media outlets have recognized in articles and editorials that the Court delivers big wins for corporations when it counts most. The U.S. Chamber of Commerce, which often supports big business in court against everyday Americans, won 70% of the closely divided cases in which it participated. Wins in Wal-Mart v. Dukes, AT&T Mobility v. Concepcion, and Janus Capital Group v. First Derivative Traders made it more difficult to hold corporations accountable for discrimination and deceit that harm millions of Americans.

Below is a sample of articles in which experienced Supreme Court observers detail the Court’s extreme pro-corporate bias.

Los Angeles Times
The Supreme Court closes the door to justice: Has the Supreme Court lost faith in the American court system? That is a strange question to ask about the justices who sit at the top of the country's judicial hierarchy. But in case after case in the just-completed term, the court, usually in 5-4 decisions with the conservatives in the majority, denied access to the courts.

Los Angeles Times
Supreme Court has given firms a stronger hand: The Supreme Court, which winds up its term Monday, has once again shown itself to be highly skeptical of large lawsuits against big business, regardless of whether the suits are intended to protect workers, consumers or the environment.

New York Times
A Significant Term, With Bigger Cases Ahead: [B]usiness groups won the most consequential cases, including what a U.S. Chamber of Commerce lawyer called “the triple crown of this year’s business docket.”

Roberts Court Wraps up Term, Leaving Significant Conservative Mark: The Supreme Court wrapped up its final cases yesterday, completing a year of action in which its conservative majority left a significant legal mark. In several instances, the high court favored businesses over consumers and employees, most notably in throwing out a class action lawsuit against Wal-Mart.

Analysis: Big business scores key Supreme Court term wins: Giant retailer Wal-Mart Inc, telecommunications company AT&T Inc and coal power companies came out the big winners in the U.S. Supreme Court's just-ended term that rejected large lawsuits against them.

San Francisco Chronicle
Recent U.S. high court rulings favor businesses: Calvin Coolidge once said that the business of America is business. More recently, it's also been the chief business of the nation's highest court. In class actions against Walmart and AT&T, damage suits against drug manufacturers and fraud suits against mutual funds, the Supreme Court's five-member conservative majority issued rulings that insulated corporations from claims by employees, consumers and shareholders.

Operating Instructions: The Supreme Court shows corporate America how to screw over its customers and employees without breaking the law.

USA Today
Supreme Court: 2010-11 term in review: In the 2010-11 term, the majority exerted its power particularly on business cases, favoring big companies over the interests of consumers and employees. It closed off avenues to the courthouse for people suing corporations yet also for taxpayers who challenge government aid to religious schools. And it continued to roll back campaign-finance laws intended to diminish the influence of wealthy interests in elections.

Panel Discusses Pro-Business Bias in Supreme Court

The American Constitution Society held its 2010-2011 Supreme Court Review panel yesterday. Quinn Emanuel partner Kathleen Sullivan moderated the discussion, which centered on whether or not this Supreme Court term supported the idea that the Roberts Court is pro big business. The panel members included H. Christopher Bartolomucci, a Bancroft partner; Lucas Guttentag, Senior Counsel for the American Civil Liberties Union Immigrants’ Rights Project; Erica Hashimoto, a professor at the University of Georgia School of Law; Suzette Malveaux, a professor at the Columbus School of Law at Catholic University; Paul Smith, a Jenner & Block partner; and Allison Zieve, the director of the Litigation Group at Public Citizen.

The panelists discussed several cases this term and expressed their views on whether or not, overall, the current Court was biased in favor of large corporations. The decisions involving class actions particularly showed the Court’s bias towards big business. Malveaux was asked to speak on the subject as one of her areas of study is class actions. She said that the Court’s decisions in AT&T Mobility v. Concepcion and Wal-Mart v. Dukes have restricted plaintiffs’ ability to have their day in court in consumer and employment cases. The AT&T case involved a contractual ban on class actions and a requirement that customers arbitrate their disputes with the company – a combination that the California court found unconscionable. The Supreme Court reversed and held that the provisions were permissible. Malveaux predicted that more and more corporations will now use forced arbitration provisions and class action bans in contracts with customers, denying them access to justice.

Malveaux also discussed the Wal-Mart case, calling it “devastating for employees.” She said that the conservative justices made it harder for plaintiffs to bring class actions because after this decision, employees suing their employers over discrimination will need more evidence. Because of this new standard, the employees in this case did not even have the opportunity to bring their lawsuit into court; the Supreme Court decided there was not enough proof for them to form a class. Looking at this decision and the AT&T decision, Malveaux concluded that the Court favored big business in procedural aspects of class actions.

To learn more about the Supreme Court's 2010-11 term and its pro-corporate decisions, see Alliance for Justice's Corporate Court page.

Senate Confirms Territorial Court Nominee, Fails to Vote on 17 Other Judicial Nominees

Last night the Senate confirmed, by unanimous consent, Wilma Antoinette Lewis to the District Court of the Virgin Islands for a term of ten years.

The Senate took no action on the 17 Article III (lifetime) judicial nominees who are awaiting confirmation on the Senate floor. Sixteen of these nominees were reported out of the Senate Judiciary Committee without opposition, so there is no substantive reason for delaying their confirmation. The sad fact is that for political reasons, Republican senators have objected to confirming them quickly, perpetuating the crisis in the federal courts.

There are currently 111 vacancies in our federal judiciary, 35 of which are designated as “judicial emergencies” by the Administrative office of the U.S. Courts. Eight of the unopposed judges awaiting final confirmation vote would fill judicial emergencies.

New York Times Addresses Supreme Court Ethics

Today's New York Times carries an editorial on judicial ethics that begins:

The court cannot maintain its legitimacy as guardian of the rule of law when justices behave like politicians. Yet, in several instances, justices acted in ways that weakened thLinke court’s reputation for being independent and impartial.

Could the editorial board responding to this op-ed from this week?

This, recall, was the term in which... Justices Scalia and Clarence Thomas each drew fire for attending separate meetings hosted by the conservative Koch brothers. Justice Thomas has also been made to defend the political activism of his wife, Virginia, and, in recent weeks, faced questions about his entanglement with Harlan Crow, a benefactor of conservative causes.

Or was it in response to their reporting earlier in the month?

The [Harlan Crow] project throws a spotlight on an unusual, and ethically sensitive, friendship that appears to be markedly different from those of other justices on the nation’s highest court.

There is no mandatory code of conduct for Supreme Court justices, but that doesn't mean they don't have to follow the Ethics in Government Act of 1978, which requires disclosure of income, gifts, reimbursements, and certain financial interests of spouses. As more and more information comes to light about Justice Thomas' relationship with conservative Republican donors and fundraisers, questions about his adherence to the law continue to surface.

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to read the rest of today's New York Times editorial.