Senate Democrats Call for Votes on Judicial Nominees

Senate Democrats took to the Senate floor today to call out Republicans’ continuing efforts to delay the confirmation of qualified, consensus judicial nominees in the face of a longstanding judicial vacancy crisis.

Senator Dianne Feinstein (D-CA)
Today, partisanship has stalled even the most uncontroversial judicial appointments.  Senate Republicans allowed no nominees to be confirmed at the end of the last session, and have allowed but five so far this year.  In this environment, even those reported out of committee by voice vote, without any controversy, are unable to receive a floor vote for many months, if they ever receive one at all.

It’s clear that we’re seeing a degree of obstruction that’s unprecedented, and that hampers the ability of the judicial and executive branches to perform their constitutional functions.  It is preventing us, the legislative branch, from fulfilling the responsibility that we owe to the two other branches of government.
Senator Chuck Schumer (D-NY)
One out of ten—let me repeat that—one out of ten seats on the federal bench is currently vacant.  Judicial vacancies are double—double—what they were at this point in President Bush’s first term.   We have confirmed only three judicial nominees this session, only five in the past 2 months.

. . .

What is going on today is obstruction, plain and simple.  Obstruction against anybody, any nominee, and obstruction at unprecedented levels.

Senator Richard Durbin (D-IL)
A unanimous vote or a strong bipartisan vote in the judiciary committee used to be a signal of success on the floor.  Not anymore.  At this point, they reach the ultimate roadblock.  They are stopped on the Senate floor by the Republican minority.  It isn’t just unfair to judicial nominees, many of whom have been proposed by Republican Senators.  It is fundamentally unfair to our court system.  

Senator Chris Coons (D-DE)

As senators, we have a responsibility to advise the President as to nominations and where we agree, to consent.  And where we don’t, each of us is free to vote “No.”  Some senators have suggested they oppose all nominations in oppositions to the President’s recess appointments.  And in my opinion, a pledge to oppose all nominations is a pledge not to do his or her job.  In my view, we ought not to make such a pledge.  In my view, while so many Americans are out of work and so many of us are here on the public payroll, we can, we should, and we must move forward with judicial nominees.  

Senator Amy Klobuchar (D-MN)
[Courts] impact real people every day, whether we are talking about people seeking to protect their rights under the Americans with Disabilities act or companies trying to resolve commercial disputes. . . .  Unreasonable delays in court proceedings undermine our system of justice.

Senator Ben Cardin (D-MD)
I am concerned, Mr. President, that our judicial confirmation process here in the Senate has broken down due to partisanship, particularly for non-controversial judges. . . .  The real victim here is not only the nominee and their family that are awaiting final Senate action.  The real victim is the American people, who face increasing delays in courts that are overburdened and understaffed.  A higher vacancy rate means lack of timely hearings and decisions by our federal courts, affecting our citizens’ ability to have access to justice and a fair and impartial resolution of their complaints.

Senator Barbara Boxer (D-CA)
The lack of action on these qualified nominees is hurting our people.  

Senator Pat Leahy (D-VT)
These highly qualified – consensus – nominees should be confirmed without further delay.  They should have been confirmed last year. . . . One hundred and thirty million Americans live in circuits or districts with a judicial vacancy that could be filled if Senate Republicans would consent to votes on these nominees.  The delays are as damaging as they are inexplicable.

The Senate Democratic caucus assembled a video of some of the senators' speeches. Watch now:

Nineteen judicial nominations reported favorably by the Senate Judiciary Committee await confirmation by the full Senate. Fourteen of those nominations were reported by the Judiciary Committee last year; seventeen of the 19 nominations pending before the full Senate received strong bipartisan support from the Judiciary Committee.

The Senate should vote to confirm these nominees without delay.

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

Court Set to Hear Human Rights and Corporate Accountability Case

On Tuesday, February 28, the Supreme Court will hear arguments in the case of Kiobel v. Royal Dutch Petroleum. At stake is whether corporations can be held liable for participating in the commission of human rights violations under the Alien Tort Statute (“ATS”).

In this case, multinational oil companies are alleged to have aided and abetted human rights atrocities committed against environmental activists by the Nigerian military, for which victims and victims’ surviving family members now seek compensation.

Today Alliance for Justice is releasing an in-depth report on Kiobel. As the report highlights:
The Supreme Court is poised to make a statement on the civil liability of corporations that participate in the commission of atrocities in the pursuit of profit. After its shocking holding in Citizens United that corporations enjoy the same rights as people to spend unlimited money to influence elections, already resulting in a perversion of American democracy, it would be the utmost hypocrisy if the Court now rules that corporations enjoy special privileges when they engage in activities that the international community has condemned as crimes against humanity. If corporations are to have equal rights, at the very least, they must also have equal responsibilities.
The new report on Kiobel v. Royal Dutch Petroleum is available online. Click here to download the .pdf.

Senators need to stand up

A small handful of senators, led by Mike Lee of Utah and Rand Paul of Kentucky, have committed to stalling or blocking every single judicial nominee put forth by President Obama.

And they're getting away with it because the reporters, the consultants, and the pollsters -- and even many of their colleagues -- just haven't paid much attention to the holds on nominees, the "extended debate," and the threats of filibusters.

But the vast majority of senators oppose these partisan games and obstructionist tactics, and we need those senators to stand up and speak out.

Ask your senators to speak out on the floor of the U.S. Senate about America's judicial vacancy crisis, and the twenty nominees who are awaiting Senate action.

Supreme Court Issues Decision in Important Access to Justice Case

Yesterday, the Supreme Court issued its opinion in Douglas v. Independent Living Center of Southern California, deciding 5-4 to vacate the Ninth Circuit’s decision and remand the case for further consideration “in light of the changed circumstances.”

The Court did not resolve the central issue of whether individuals may use the Supremacy Clause of the U.S. Constitution to sue the state of California for adopting Medicaid laws that allegedly deny care to certain individuals in violation of the federal Medicaid statute.

The consolidated Douglas cases arose from California’s decision to issue cuts of up to ten percent in Medicaid benefits. A group of medical providers and low-income elderly and disabled individuals challenged the cuts under the Supremacy Clause, saying that they violated federal law by causing a reduction in the number of providers willing to participate in the program. The district court found that the reduction has forced or will force non-emergency medical transportation services and home health services providers to reduce the geographic area they are able to serve, to decline to take new Medicaid patients, and to end services to some existing patients or close their businesses.

The Ninth Circuit held that the claims could proceed and that a preliminary injunction preventing the cuts from going into effect should be granted. The Supreme Court was asked to decide the preliminary issue of whether the Supremacy Clause granted the plaintiffs a right to sue.

In an opinion penned by Justice Breyer, the Court held that the cases, although not moot, are now “in a different posture.” Between the Court’s grant of certiorari and the rendering of its decision, the federal agency charged with administering Medicaid determined that the rate reductions complied with federal law. As a result, the Supreme Court decided that the parties should reargue the Supremacy Clause claim in the Ninth Circuit. 

In dissent, Chief Justice Roberts, joined by Justices Scalia, Thomas, and Alito, would have held that there is no cause of action under the Supremacy Clause, regardless of the position taken by the federal agency.

According to California and the dissenters at the Supreme Court, no private individual should have the right to sue a state for noncompliance with federal Medicaid laws. However, as Alliance for Justice has shown in its report on the Douglas cases (.pdf download), former Housing and Human Services officials have said that private enforcement “has been the cornerstone of HHS policy throughout the history of the Medicaid act, and remains the prevailing view of those charged with administering the program.”

If Americans were left unable to use the Supremacy Clause to challenge illegal state laws, states would feel free to gut a range of other important federal programs and policies. Although the Supreme Court did not conclusively close the courthouse door to these plaintiffs, it did send the case back to the Ninth Circuit with the central issue unresolved. We also now know that the Supreme Court has at least four votes against allowing Americans to stand up for their rights under the Supremacy Clause.

Senate to Vote Monday on Margo Brodie’s Nomination to the Eastern District of New York

When the Senate returns from its Presidents’ Day recess next Monday it will vote on the nomination of Margo Kitsy Brodie to a seat on the United States District Court for the Eastern District of New York. Brodie was nominated to the seat on June 7, 2011. 

A graduate of St. Francis College and of the University of Pennsylvania School of Law, Brodie has served for thirteen years as an Assistant United States Attorney.  She is currently the Deputy Chief of the Criminal Division, with prior service as Counselor to the Criminal Division and as Chief and Deputy Chief of the General Crimes Section.  Her prior experience includes five years in private practice and three years working for the New York City Law Department.

Due to the reflexive obstruction and slow-walking of judicial nominees by Senate Republicans, Brodie will have waited 145 days from the time she was unanimously reported out of the Senate Judiciary Committee on an unopposed voice vote for the full Senate to take action on her confirmation. Meanwhile, the people of the Eastern District of New York will have gone 329 days waiting for a vacant seat to be occupied by a judge who will hear their cases as they seek justice in federal court.

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

John Roberts on Mandatory Ethics Rules: Thanks, But No Thanks

by Nan Aron

Yesterday, Chief Justice John Roberts told Senate Judiciary Committee Chairman Patrick Leahy and the American people that the Supreme Court of the United States, apparently alone among all institutions of American government, doesn't need formally binding ethics rules and has no intention of adopting any. In a terse statement, the Chief Justice flatly rejected a recommendation by Chairman Leahy and Senators Durbin, Whitehouse, Franken, and Blumenthal that the Court voluntarily, explicitly, and formally adopt the same Code of Conduct that governs every other federal judge.

All federal judges are required to abide by a set of ethics rules spelled out in the Code, which includes many general guidelines, and also specific common-sense prohibitions on engaging in political activity and being active participants in fundraisers. These rules are designed to protect individual judges--and the judicial system as a whole--from even the appearance of partiality or impropriety so that the American people can have complete confidence that federal judges act without personal bias or political agenda.

But there are nine federal jurists who are exempt. The Code does not formally apply to the Supreme Court of the United States, except, perhaps, as "guidance."

Because the Code has never been formally adopted by the Court, it may be followed--or not--at the whim of individual justices, the chief justice's assertions that justices are always models of ethical behavior notwithstanding.

Regrettably, the record shows that even though justices have asserted that they abide voluntarily by the Code, the recent behavior by several of them demonstrates that either they don't understand its provisions or they are willing to ignore them. When Antonin Scalia and Clarence Thomas feel comfortable attending political strategy meetings of the Koch Brothers and Samuel Alito willfully headlines fundraisers for conservative organizations, it's clear that the provisions of the Code explicitly banning exactly that kind of behavior are not taken seriously.

Chief Justice Roberts' statement today ensures that ambiguity, confusion, and uncertainty will continue to characterize the ethical environment of the Supreme Court. His decision will only serve to undermine confidence in the integrity of the Court in a year packed with high-profile cases of enormous importance and add to a growing public perception that our democratic institutions are increasingly opaque and unaccountable.

No harm can come from volunteering to formally and strictly adhere to the same rules that every other judge abides by. Saint Augustine wrote of laying the "foundation of humility." If the Court wants to rebuild its slipping reputation, that wouldn't be a bad place to start.

Note: This blog entry will also appear on Nan Aron's Huffington Post page.

Corporate Court Favors Forced Arbitration. Again.

Yesterday, the Supreme Court handed down its decision (.pdf download) in Marmet Health Care Center v. Brown and a consolidated case, ruling once again that everyday Americans may be barred from court and forced into arbitration by the corporations that have caused their injuries.

In these consolidated cases, three patients died allegedly due to the negligence of their West Virginia nursing homes. Surviving family members patients attempted to bring suit in state court, although the patients had signed contracts with the nursing homes that included forced arbitration provisions. The plaintiffs successfully made the case before the West Virginia Supreme Court that the forced arbitration clauses were both unconscionable under state law and against the public policy of West Virginia.

The U.S. Supreme Court has now stepped in and vacated that decision. The Court, in an unsigned opinion, reiterated its holding from last term’s AT&T Mobility v. Concepcion that “when state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the [Federal Arbitration Act].”

This case serves as yet another example of the Supreme Court’s consistent interpretation of the Federal Arbitration Act (“FAA”) in a manner that favors big business and hurts everyday Americans. As Alliance for Justice has detailed in our report, Arbitration Activism: How the Corporate Court Helps Business Evade Our Civil Justice System, the FAA was meant to place arbitration agreements “on the same footing” as any other contract, and was intended to apply primarily to business contracts between parties of roughly equal bargaining power.

The Supreme Court, however, has applied the FAA to all sorts of employment and consumer contracts, including “adhesion contracts” in which the employee or consumer has no real ability to bargain with the corporate party. By upholding forced arbitration in this context, the Corporate Court is actively erecting barriers to justice for the 99% in order to protect the 1%.

Some in Congress, however, are attempting to tear down some of these barriers. The prevalence of forced arbitration in the nursing home business led a bipartisan group of senators, including Sens. Herb Kohl (D-WI) and Mel Martinez (R-FL) to introduce the Fairness in Nursing Home Arbitration Act in 2009. This bill would eliminate forced predispute arbitration in nursing home contracts, ensuring Americans like the plaintiffs in Marmet get their day in court.

Alliance for Justice supports the Arbitration Fairness Act as introduced by Sen. Al Franken (D-MN), which would ban predispute, forced arbitration in cases involving civil rights, consumer contracts, or employment contracts. AFJ will continue to fight to make sure that arbitration remains a valuable way for parties to settle their disputes in a fair an expeditious fashion, but not as a way for powerful corporations to force consumers and employees from enjoying their ability to enforce their rights in court.

Click here to read more about AFJ’s work on arbitration fairness.

The Corporate Court: Making New Laws from Thin Air

The Roberts Court's troubling pro-business bias has long been evident in the cases it chooses to hear and in the decisions it renders. But one aspect of the Court's tendency to overreach in favor of corporate interests is its penchant for crafting new laws out of thin air, without the apparent need to do so.

For example, the dispute in AT&T Mobility v. Concepcion arose after AT&T offered customers a "free" phone but charged a sales tax of up to $30. When customers discovered the scheme and asserted their rights in court, AT&T sought to enforce a contract provision banning class actions and requiring all disputes to be settled in arbitration.

Applying California contract law, the Ninth Circuit Court of Appeals invalidated the provision as unconscionable because it allowed AT&T to defraud many consumers out of an amount of money so small that victims were unlikely to arbitrate individually. California law applied the same unconscionability principles to class arbitration prohibitions as it did to class litigation prohibitions.

Nonetheless, the 5-4 majority held that California law conflicted with the Federal Arbitration Act because California “disfavored arbitration.”

In his dissent, Justice Breyer stated that the Court should, “think more than twice before invalidating a state law that does just what §2 [of the FAA] requires, namely, puts agreements to arbitrate and agreements to litigate upon the same footing.”

The conservative majority in AT&T v. Concepcion rewrote the FAA to favor business-friendly arbitration over litigation, and prevent states from protecting consumers.

For more on the Roberts Court's history of overreaching, download AFJ's special report: How the Corporate Court Bends the Law to Favor the 1%.

No Corporate Exemption: Supreme Court to Hear Major Corporate Human Rights Case

Guest post by Tyler Giannini & Susan Farbstein

Next Tuesday, the Supreme Court will hear oral arguments in Kiobel v. Royal Dutch Petroleum Co.  Kiobel is the most important human rights case the Court will consider this term, raising fundamental questions about corporate accountability.  The Plaintiffs allege that Royal Dutch/Shell was complicit in the Nigerian government’s torture and killing of their relatives in the 1990s.  The Supreme Court is reviewing a lower court decision that created a corporate exemption from liability under the Alien Tort Statute (“ATS”), concluding that corporations cannot be sued even when they facilitate genocide, crimes against humanity, or war crimes.

The ATS, a 1789 law passed by the First Congress, permits non-U.S. citizens to hold perpetrators accountable in U.S. courts for violations of international law.  In the fall of 2010, however, the Second Circuit Court of Appeals in New York created the corporate exemption now under review.  Since the Second Circuit’s decision, every other appellate court to consider the issue has rejected Kiobel’s approach.  Recognizing the importance of this question and the split among the lower courts, the Supreme Court agreed to hear the case.

Yesterday, the Plaintiffs filed their final brief before the oral argument.  They noted the profound ramifications of the lower court’s holding:
The implications of the decision below are shocking.  When I.G. Farben exploited slave labor at Auschwitz and supplied the Zyklon B poison to facilitate mass murder in its death chambers, that corporation violated international law.  [Defendants’] construction of the ATS means that even a modern-day I.G. Farben could not be sued under the ATS.  Nor could a “Pirates, Inc.” engaged in contemporary piracy, or an entity incorporated to engage in slavery.
Given the significance of blanket immunity for corporate human right abuse, it is no surprise that the U.S. government has weighed in with an amicus curiae brief in support of the Plaintiffs.  The U.S. government noted that corporations are certainly capable of violating international law, and found “no good reason to conclude that the First Congress would have wanted the suit to proceed only against the potentially judgment-proof individual actor, and to bar recovery against the company on whose behalf he was acting.”  The government’s brief further observed that “[c]orporations have been subject to suit for centuries, and the concept of corporate liability is a well-settled part of our ‘legal culture.’”

For fifteen years before Kiobel, the statute enabled survivors of corporate human rights abuse to pursue accountability here, when it was otherwise unavailable.  For example, Plaintiffs sought redress for corporate complicity in forced labor in Burma, apartheid in South Africa, and extrajudicial killings in Nigeria.  While only cases against companies involved in such egregious human rights violations moved forward, no court contemplated a corporate shield from liability.  With Kiobel, the Supreme Court has an opportunity to reaffirm the U.S. commitment to provide justice to survivors of egregious human rights abuse.  Relief from suffering should not depend on whether an individual or a corporation is responsible for the violation.


Tyler Giannini and Susan Farbstein teach at Harvard Law School, and are the Clinical Director and Associate Clinical Director of its Human Rights Program. They are currently co-counsel in two Alien Tort Statute cases and have submitted amicus curiae briefs in numerous others, including in support of the Petitioners in Kiobel v. Royal Dutch Petroleum Co.  Giannini served as one of the architects of Doe v. Unocal Corp., a precedent-setting corporate ATS suit that settled in 2005.  Farbstein was a member of the legal team in Wiwa v. Royal Dutch Petroleum Co., the companion case to Kiobel that settled in 2009.

Mind your own business, Senator Lee

Two judicial nominees in West Virginia have fallen victim to the knee-jerk obstruction of a senator from thousands of miles away.

In an op-ed for the Charleston Gazette, AFJ President Nan Aron takes a look at the nominees and the senator standing in their way:
I'm willing to bet that people in West Virginia, like most Americans, have never heard of Mike Lee. He's the junior U.S. Senator from Utah, and has been in office for all of two years. Yet, he has decided all by himself that West Virginia can't have new federal judges.

He's mad at President Obama, so he's throwing a legislative fit and has vowed to block all of the president's appointments to the federal courts, including two from West Virginia...

President Obama, working closely with Senators Jay Rockefeller and Joe Manchin, has appointed Gina Groh from Charles Town to fill a seat on the U.S. District Court, and Stephanie Dawn Thacker from Charleston to the U.S. Court of Appeals for the Fourth Circuit. These are highly qualified individuals with impeccable records and are fully representative of West Virginia values. They have bipartisan support and were unanimously approved by the Senate Judiciary Committee.
Click here to read the rest of Nan's column.

By the Numbers

This week saw significant action on the judicial nominations front. Boiling what took place down to the basic numbers, there were:

4 new nominations, bringing the number of pending nominees to 42
4 nominees who had hearings before the Senate Judiciary Committee: 1 Circuit Court nominee and 3 District Court nominees
4 nominees reported out of Committee to the Senate floor, bringing the number of nominees awaiting their final confirmation votes to 20
2 nominees confirmed: Adalberto José Jordán to the 11th Circuit Court of Appeals and Jesse M. Furman to the United States District Court for the Southern District of New York

The week comes to a close with:

103 total judicial vacancies, including 32 judicial emergency vacancies.
85 current vacancies; 18 future vacancies.
17 circuit court vacancies; 86 district court vacancies.
42 pending nominees; 61 vacancies without nominees.
22 nominees pending in committee; 20 pending in the Senate.

Mid-Term Roundup

With the Corporate Court halfway through its 2011-2012 term, we take this opportunity to look back at the opinions that it has issued so far. The Court’s less tendentious rulings tend to be released before the more closely divided ones, so it is unsurprising that all of these cases were decided 9-0 or 8-1. However, the Corporate Court’s unanimity aside, four of these holdings spell bad news for everyday Americans, while two go against corporate interests, and the implications of a final decision remain to be seen.

First, the bad news.

In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Court held 9-0 that a “ministerial exception” shields religious institutions from liability for discriminatory or retaliatory employment actions.  The Court applied a totality of the circumstances test to conclude that the employee in this case – a teacher of primarily secular subjects at a religious school – was a “minister,” and that therefore the ministerial exception applies and her suit is barred. This holding will make it difficult for teachers to speak out against misdeeds within religious institutions for fear of retaliation, and will allow religious institutions to discriminate with impunity.

In Minneci v. Pollard, the Court held 8-1 that employees of a private corporation operating a federal prison may not be held liable under federal law for committing constitutional violations. The plaintiff sued for damages under Bivens v. Six Unknown Federal Narcotics Agents, claiming that his Eighth Amendment right not to be cruelly punished had been violated. The Corporate Court held that there is no reason to imply a Bivens remedy because Pollard has an adequate remedy in state tort law. Pollard would clearly have had a Bivens remedy if he were incarcerated in a prison run by the government. Yet because he was placed in a prison run by a private contractor, he is denied that remedy.

In National Meat Association v. Harris, the Corporate Court decided in favor of an industry trade group, holding 9-0 that a California state law designed to protect consumers from contaminated meat and to ensure humane treatment of animals is preempted by the Federal Meat Inspection Act. As a result of the Court’s decision, it will be easier for potentially contaminated meat to get into California grocery stores, and more difficult for all states to protect public health and humane treatment of animals.

In Perry v. Perez, the Supreme Court rejected a district court’s attempts to draw interim electoral maps for the upcoming elections, ordering it to give greater deference to the legislature’s racially gerrymandered maps. With pending lawsuits challenging the maps, the San Antonio court designed interim maps to be used during the 2012 electoral season. The Supreme Court rejected the court-drawn maps for failing to defer adequately to the legislature’s choices, and remanded with the instruction to modify the legislature’s maps only where there are alleged legal problems that have a likelihood of success on the merits. The Court’s ruling will likely have the effect of diluting minority voting rights in the 2012 elections.

Now, the good news.

In Mims v. Arrow Financial Services, the Court held that the Telephone Consumer Protection Act allows a consumer claiming harassment to sue in federal court, reversing the lower courts’ holding that Congress intended to limit jurisdiction to state courts. By siding with Mims, the Supreme Court has provided consumers with the ability to hold companies accountable for unlawful telephone harassment in federal court, where they might receive greater relief than they would in the courts of states with weaker consumer protections.

In a case with narrower application, the Court held in Pacific Operations Offshore v. Valladolid that the Outer Continental Shelf Lands Act extends workers’ compensation coverage to workers who can show a “substantial nexus” between their injury and their work on the Outer Continental Shelf.  As a result, workers in the offshore extractive industries who are injured or killed while working onshore may still receive benefits under the OCSLA if they can show a “substantial nexus” between their injury and operations on the Outer Continental Shelf.

Finally, in the ambiguous category is United States v. Jones, in which the Court addressed the right of individuals to be free from warrantless government tracking of their vehicles’ locations through GPS technology. Although the Court technically ruled against the government, it delivered only a limited victory for privacy rights, holding that the installation and use of a GPS tracker on an automobile constitutes a “search.” Whether or not a warrant is required for such a search remains an open question, and one that will undoubtedly trouble privacy advocates.

The Court returns from its mid-term recess on Tuesday, February 21, when it will hear oral argument in Freeman v. Quicken Loans.

Obama Nominates Four to Fill Judicial Vacancies

Thursday evening, President Obama sent four new names to the Senate to fill judicial vacancies.

He nominated Jill A. Pryor to a seat on the 11th Circuit Court of Appeals. A graduate of the College of William and Mary and of Yale Law School, and a former clerk for 11th Circuit Judge J.L. Edmondson, Pryor is currently a partner at the law firm of Bondurant, Mixson & Elmore, LLP, in Atlanta, Georgia. If confirmed, she will be the fourth woman to serve on the Court of Appeals for the 11th Circuit. The seat to which Pryor has been nominated has been vacant since August 2010 and has been declared a “judicial emergency” by the Administrative Office of the U.S. Courts.

Nominated to United States District Court seats were Judge Elissa Cadish to the District of Nevada, Judge Paul William Grimm to the District of Maryland, and Judge Mark E. Walker to the Northern District of Florida.

Judge Cadish, who currently serves as a district court judge on the 8th Judicial District Court of Nevada, is a graduate of the University of Pennsylvania and of the University of Virginia School of Law. Following law school, she clerked for Judge Philip Pro of the District of Nevada; it is his seat, also an emergency vacancy, that she will fill if confirmed.

Judge Grimm, who has been nominated to fill a future vacancy that will open up when incumbent judge Benson Legg takes senior status in June, is a United States Magistrate Judge for the District of Maryland and, since 2006, has served as the Chief United States Magistrate Judge. A former member of the Judge Advocate General’s Corps with the United States Army, Grimm received his B.A. from the University of California at Davis and his J.D. from the University of New Mexico School of Law.

Judge Walker is currently a Florida Circuit Judge in Tallahassee. In addition to a decade in private practice, he served as an Assistant Public Defender for Florida’s Second Judicial Circuit from 1997-1999 and clerked for a Florida state court judge, a United States District Court Judge in the Northern District of Florida, and a judge on the 11th Circuit Court of Appeals.  He received both his B.A. and his J.D. from the University of Florida.

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

Senate Judiciary Committee Reports Four Nominees to the Floor, Holds Hearing on Four Nominees

This morning the Senate Judiciary Committee reported four United States District Court nominees to the Senate floor, where they now await their final confirmation votes.

The nominations of John Lee to the Northern District of Illinois, John Tharp, Jr. to the Northern District of Illinois, George Russell III to the District of Maryland, and Kristine Baker to the Eastern District of Arkansas were reported out on a voice vote with overwhelming bipartisan support from the committee members. Only Senator Mike Lee (R-UT) -- who has pledged knee-jerk opposition to every single nominee -- opposed the nominations. Ranking Member Charles Grassley (R-IA), the only Republican in attendance, announced that Senator Lee opposed the nominees “for reasons unrelated to the qualifications of the candidates,” voting no as a means of expressing an opinion on an unrelated matter.

Three of the four vacancies these nominees will fill vacancies that the Administrative Office of the U. S. Courts has declared to be “judicial emergencies.”

As has become usual practice for Republicans during the Obama presidency, Senator Grassley invoked a committee rule to delay consideration of Andrew Hurwitz for the Ninth Circuit Court of Appeals until the next committee meeting. Since the Senate will be in recess next week, it will be at least two weeks before action can be taken to move his nomination forward to the full Senate. The vacancy Hurwitz has been nominated to fill is also a judicial emergency.

Earlier this week, the Judiciary Committee held hearings on four nominees: Patty Shwartz to a seat on the Third Circuit Court of Appeals; Mary Lewis to a seat in the District of South Carolina; Jeffrey Helmick to a seat in the Northern District of Ohio, and Timothy Hillman to a seat in the District of Massachusetts.

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

Will the Court Strip RESPA of All Mechanisms for Consumer Enforcement?

Thoughts on Freeman v. Quicken Loans and First American Financial Corp. v. Edwards
Guest post by Kevin K. Russell

Anyone who has ever gone to a closing on a house has confronted the often bewildering set of fees charged by banks, title companies and others, in order to finalize the purchase and obtain a mortgage.  On Tuesday, February 21, the Supreme Court will consider whether the federal law that regulates these closings – the Real Estate Settlement Procedures Act (RESPA) – is violated when a company charges a fee at closing for a service it never actually performed.

The plaintiffs in the case of Freeman v. Quicken Loans allege that a lender charged them loan discount points – which are fees borrowers pay up front in order to reduce the interest rate on a home loan – without providing them any actual discount.  While the lender denies the allegation, it prevailed in the lower courts on the theory that even if it charged the consumers for a service it never provided, that does not violate RESPA.

The relevant provision of RESPA is entitled “Prohibition against kickbacks and unearned fees.”  The first subsection of the provision expressly forbids kickbacks among settlement service providers like banks, mortgage brokers, and real estate agents.  The second subsection provides in relevant part that “No person shall give and no person shall accept any portion, split, or percentage of a charge made or received for the rendering of a real estate settlement service.”  The lower courts in this case read the latter provision to prohibit unearned fees only if the fee is then shared with another provider, as in the case of a kickback.  As a result, the courts held, even if Quicken charged the Freemans an unearned fee, it did not violate the statute because it did not kickback any of the ill-gotten gains to another provider.

The Department of Housing and Urban Development (HUD), which administers RESPA, has long taken the plaintiffs’ side, reading the statute as prohibiting all unearned fees.  The Obama Administration has filed a brief in the Supreme Court reiterating that view.

Quicken and other settlement service providers have filed briefs arguing that the HUD’s position is inconsistent with the language of the statute and with Congress’s intent to deal with abusive industry practices through disclosure requirements (the statute entitles consumers to a list of charges in advance of the closing), rather than direct regulation of rates.

The case is significant in itself – there are millions of closing every year at which providers may be tempted to pad their fees with charges for services they never actually perform (as anyone who has ever been charged a “courier fee” may suspect in the days of electronic transmission of documents).

But the case takes on added significance when considered in tandem with another RESPA case the Court is considering this term, First American Financial Corp. v. Edwards.  In that case, it appears possible (based on the oral argument) that the Court may hold that plaintiffs cannot sue to challenge kickbacks under RESPA unless they can show that the kickback affected the price they were charged or the quality of the services they received.  The absence of such a showing, the bank in that case has argued, means that the plaintiff has not suffered an “injury in fact” and therefore lacks standing to enforce her statutory rights under Article III of the Constitution.  Were the Court to adopt that rule, lower courts might well find that violations of RESPA’s disclosure provisions (the ones Quicken argues are RESPA’s main protection against abuses) likewise do not cause injury and thus do not confer Article III standing.

If the courts reach that conclusion, the provision at issue in Freeman takes on new prominence.  That is, if plaintiffs generally lack standing to bring kickback and disclosure claims because they have not suffered an “injury in fact” under either provision, the only claims left for consumer enforcement would be unearned fee claims like the ones the Freemans have made.  There is no question that consumers would have standing to raise unearned fee claims – they can easily show that they suffered a concrete financial injury in being charged for a service that was never performed.  But if the Court in Freeman construes RESPA as prohibiting unearned fees only in kickback situations, and holds in Edwards that consumers generally cannot sue for kickback violations, there may be little left of the statute that consumers can actually enforce.

Disclosure: The author represents petitioners in this case.


Kevin K. Russell has been counsel in more than a dozen merits cases in the Supreme Court in the past six years. He has also filed numerous amicus briefs in the Court on behalf of groups such as the ACLU, NAACP, the National Women’s Law Center, and constitutional law scholars. Kevin currently is an instructor in the Stanford Supreme Court Litigation Clinic, as well as Harvard’s winter term Supreme Court Litigation clinic. He worked for five years in the Appellate Section of the Civil Rights Division at the U.S. Department of Justice. During that time, he represented the United States in more than thirty-five civil and criminal cases in eleven federal courts of appeals, presenting oral argument in more than two dozen of those cases.

Kevin’s areas of special interest include civil rights, immunity, and matters of jurisdiction and civil procedure.

Senate to vote on Jordan at noon

Judge Adalberto Jordán, nominee to sit on the 11th Circuit Court of Appeals, is finally due to receive his Senate confirmation vote at noon today. The 11th Circuit covers the states of Florida, Georgia, Mississippi, and Alabama.

If confirmed, Jordán will be the first Cuban-born American to sit on the 11th Circuit Court of Appeals.

Judge Jordán was nominated on August 2, 2011 to fill the 11th Circuit seat left vacant after Judge Susan H. Black took senior status in February. A sitting federal judge for the Southern District of Florida, Jordán was selected and nominated by President Obama with bipartisan support from both Senators Bill Nelson (D-FL) and Marco Rubio (R-FL).

The Senate Judiciary Committee held a hearing on his nomination on September 20, 2011. On October 13, 2011, he was reported out of the committee to the Senate floor without opposition. 

Due to Republican delays of all of President Obama’s judicial nominees, no further action was taken on Jordán's nomination last year.

With across-the-board obstruction still hampering Senate procedure, Senate Majority Leader Reid (D-NV) was forced to file cloture on Jordán's nomination. A Republican filibuster was broken on Monday by an overwhelming vote of 89-5.

Despite the lopsided vote and continued absence of any opposition to Judge Jordán's qualifications or judicial philosophy, Senator Rand Paul (R-KY) insisted on invoking a Senate rule to delay the confirmation vote for an additional 30 hours, further obstructing an extremely qualified and broadly supported nominee from receiving his vote and being able to assume his seat on the bench.

Statistics on Judge Jordán’s Nomination

356: Days the seat has been vacant
198: Total days since Judge Jordán was first nominated to fill the 11th Circuit seat
126: Days Judge Jordán has waited for a confirmation vote since being unanimously reported out of committee



The Senate confirmed Judge Jordan by an overwhelming 94-5 vote.

The three judges of Perry v. Brown

Last week's landmark decision on marriage equality in California was made by a three-judge panel of the Ninth Circuit Court of Appeals. Much has been written about the legal positions and implications, but less has been said about the judges whose deliberations and opinions grabbed the headlines.

Here is some background information on the three-judge panel.

Judge Stephen R. Reinhardt, who authored the decision, was appointed to the Ninth Circuit in 1979 by President Jimmy Carter.  He was confirmed to the seat on September 11, 1980.  Judge Reinhardt is a graduate of Pomona College (1951) and Yale Law School (1954).  Following law school, he served in the U.S. Air Force from 1954-1956, clerked for Judge Youngdahl of the U.S. District Court for the District of Columbia from 1956-1957, and then entered private practice in Los Angeles from 1957-1980.

Judge Michael D. Hawkins, currently holding senior status on the Ninth Circuit, joined Judge Reinhardt’s decision.  He was appointed to the bench by President Bill Clinton in 1994 and was confirmed by the Senate that same year.  On February 12, 2010, Judge Hawkins assumed senior status.  He received his B.A. from Arizona State University and his J.D. from Arizona State University College of Law.  Upon graduation from law school, he served for three years as a U.S. Marine Corps Special Courts Martial Military Judge.  He then worked in private practice in Phoenix, Arizona from 1973-1976; served as a U.S. Attorney for the District of Arizona from 1977-1980; was back in private practice from 1980-1994; and, from 1985-1989, served as a special prosecutor for the Navajo Nation.

Judge N. Randy Smith, who dissented in the case, was nominated on January 16, 2007 to fill a seat on the Ninth Circuit; he was confirmed to the seat on February 15, 2007 and began service the next month.  Judge Smith is a graduate of Brigham Young University and of the J. Reuben Clark School of Law at Brigham Young University.  After law school, he worked as Associate/Assistant General Counsel for J.R. Simplot Company from 1977-1981; was an adjunct professor at Boise State University from 1979-1981; worked in private practice in Pocatello, Idaho from 1982-1995; and became a district judge for the Sixth Judicial District of the State of Idaho in 1995, serving until his appointment to the Ninth Circuit.  Judge Smith began work as an adjunct professor at Idaho State University in 1984, a position he continues to hold.

Dean Chemerinsky Highlights New Challenges for Civil Rights Litigants

In a recent ABA Journal article, UC Irvine Law Dean Erwin Chemerinsky argues that two generally overlooked cases this term could have broad implications for civil rights litigants’ access to justice. Chemerinsky discusses Minneci v. Pollard and Ryburn v. Huff, arguing that “each reflects a significant, though unstated, change in the law.”

In Minneci, the Court held that employees of a privately-run federal prison cannot be held liable in federal court for constitutional violations because state tort law provides adequate remedies. Chemerinsky writes, “[F]or the first time, the court has said that the existence of state remedies can preclude a Bivens cause of action. In a number of cases, the court had said that the existence of a federal statutory remedy could preclude Bivens actions. But in Bivens, the court had rejected the argument that a state tort remedy was a reason to deny a federal cause of action for a constitutional violation.”

In Ryburn, decided without argument or briefing on the merits, the Court held that police officers who entered a home without a warrant and without permission from the occupants were shielded from suit by the doctrine of qualified immunity. In the 2002 case of Hope v. Pelzer, the Supreme Court held that qualified immunity can be overcome if an officer’s discretionary actions violate clearly established law that a reasonable officer should know, even if there is not a case directly on point. Chemerinsky notes, “However, in recent cases, without acknowledging it was doing so, the [C]ourt has backed away from Pelzer and found qualified immunity because there was not a specific case on point.” In Ryburn, and last term’s Ashcroft v. Al-Kidd, the Court upheld qualified immunity based on the absence of any case on point.

Chemerinsky writes, “The [C]ourt, of course, has not overruled Pelzer. But it is notable that in neither of these cases is it cited; nor does the court focus on, what should be the central inquiry under Pelzer: Did the officer have fair notice that the conduct violated the Constitution? Requiring that the plaintiff have a case on point to overcome qualified immunity will create an obstacle for civil rights plaintiffs in many cases.”

He concludes, “Perhaps the most important theme of the Roberts Court so far has been in making it harder for plaintiffs to go forward in federal court. From a practical perspective, its most significant ruling may be Ashcroft v. Iqbal, the 2009 ruling that increased the pleading burden on those wishing to sue in federal court. The two decisions from January fit this pattern and will create new obstacles for civil rights plaintiffs.”

AFJ is greatly concerned about the Roberts Court’s hostility to litigation as a means for everyday Americans to receive compensation for past wrongs and to deter future wrongdoing. Learn more about AFJ’s work on civil justice and the Roberts Court’s history of bending the law to favor corporate interests over everyday Americans.

To read the full article by Dean Chemerinsky, click here.

The Proposition 8 ruling: How did we get here?

Advocates working to restore the rights of same-sex couples to marry in California won an important victory this week when a three-judge panel of the Ninth Circuit found that Proposition 8, an amendment to California's constitution that banned gay marriages, violates the U.S. Constitution.

Like many civil rights battles, the path to this victory has been a long one, and we thought it might be helpful to share this brief timeline of the legal battle over Proposition 8:

March 7, 2000 – California voters approved Proposition 22, which amended state law to bar the recognition of same-sex marriages.

February 12, 2004 – San Francisco authorizes the issuance of marriage licenses to same-sex couples, issuing 3,955 marriage licenses.

August 12, 2004 – The California Supreme Court rules that San Francisco exceeded its authority by issuing marriage licenses to same-sex couples and declares the 3,955 marriage licenses null and void. San Francisco responds to this ruling by challenging the constitutionality of Proposition 22 in the California state court system.

May 15, 2008 – The California Supreme Court found that Proposition 22 violated the California constitution. Opponents of marriage equality had already begun working on a proposed amendment to the California constitution, carving out an explicit constitutional exception for these laws.

June 2, 2008 – Proposition 8 qualified for the ballot.

June 17, 2008 – The State of California begins issuing marriage licenses to gay and lesbian couples.

November 4, 2008 – Prop 8 passed by popular vote, with 52% of Californians voting to amend the state constitution, and therefore invalidated the California Supreme Court’s finding that laws banning same-sex marriage were unconstitutional.

November 5, 2008 - Advocates challenged Proposition 8 in state court, claiming that the ballot initiative process violated the state constitutional procedures for enacting amendments to the state constitution.  This legal challenge was not successful.

March 5, 2009 – Arguments were made in the California Supreme Court challenging the validity of Proposition 8.

May 23, 2009 – Same-sex couples in California challenged Proposition 8 in federal district court as violating the 14th Amendment of the United States Constitution.

May 26, 2009 – After hearing arguments in March, the California Supreme Court ruled that Proposition 8 validly amended the state's constitution, and was therefore a lawful and valid action.

January 11, 2010 – Challenge to Proposition 8 heard in federal court in the Northern District of California.

August 4, 2010 – Judge Vaughn Walker of the Northern District of California ruled that Proposition 8 violated provisions of the 14th Amendment of the U.S. Constitution. Proponents of Proposition 8 swiftly appealed the decision to the Ninth Circuit Court of Appeals.

November 17, 2011 – The California Supreme Court responded to the Ninth Circuit's request for advice on whether the Proposition 8’s backers should be allowed to appeal the case to the Ninth Circuit (even though state officials would not challenge Walker’s ruling), concluding the state should not bar the case from being appealed.

February 7, 2012 – The Ninth Circuit upheld the district court ruling, declaring Prop 8 unconstitutional because it violated the Equal Protection clause of the 14th Amendment by stripping away a right once granted to all people in California—the right to marry—from a particular group.

Upcoming cases: Accountability and the law of nations

On February 28, the Supreme Court will hear oral arguments in Kiobel v. Royal Dutch Petroleum Co. and a companion case, Mohamad v. Palestinian Authority.

In Kiobel, the Court will consider whether corporations may be held liable for torts that violate the law of nations, such as torture, murder, and genocide, under the Alien Tort Statute (ATS). In Mohamad, the Court will consider the parallel liability of organizations under the 1991 Torture Victim Protection Act (“TVPA”). The ATS, which was enacted by the first Congress in 1789, establishes jurisdiction for torts “committed in violation of the law of nations or a treaty of the United States.”

Considering the limited grant of jurisdiction under the ATS, the Second Circuit majority dismissed the Kiobel plaintiffs’ claims by finding that corporations are not liable under the ATS. The court concluded that, while states and individual men and women have been held liable for human rights violations under customary international law, juridical “persons” such as corporations have not.

The majority acknowledged that corporations are generally deemed “persons,” with corresponding rights and liabilities, under U.S. domestic law. However, it insisted that liability under domestic law – including under the laws of “most or even all ‘civilized nations’” – does not create a norm of customary international law.

The Second Circuit’s holding created a split among the circuits, as the Eleventh Circuit has held that corporations can be held liable under ATS just like any private party.

The issue of corporate liability under the ATS is also pending in the D.C., Seventh, and Ninth Circuits. In Mohamad, the D.C. Circuit affirmed the district court’s dismissal of plaintiffs’ claims on the grounds that the TVPA – which establishes the civil liability of “individuals” – applies only to natural persons, not to organizations.

If the Supreme Court affirms the lower courts’ decisions in favor of the defendants in each of these cases, it will allow corporations and other organizations to act with impunity to perpetrate crimes against humanity.

Upcoming case: Can consumers sue mortgage lenders for unearned fees?

On February 21, the Supreme Court will hear oral arguments in Freeman v. Quicken Loans, in which the right of consumers to sue mortgage lenders for unearned fees is at stake. The question for the Supreme Court is how to interpret the Real Estate Settlement Procedures Act (RESPA), which prohibits kickbacks and other abuses in the mortgage industry. 

The borrowers argue that RESPA was intended to forbid both kickbacks and unearned fees, regardless of whether a third party was involved in the improper fee arrangement. Quicken argues that the law only prohibits lenders from receiving an unearned fee when that fee is divided with a third party and does not address unearned fees received by the lender alone.

The Fifth Circuit agreed with Quicken, ruling that there was no violation of RESPA if an unearned fee is charged by a single party and there is no third party taking a share. Circuit courts are deeply divided on this issue, with the Fourth, Fifth, Seventh and Eighth Circuits limiting RESPA to third-party kickbacks and the Second, Third and Eleventh Circuits believing that the act applies to all unearned fees.

The Court’s decision in this case will determine the lawfulness of millions of dollars in fees placed on homebuyers annually.  If the Court sides with Quicken, it will allow mortgage lenders to place unexplained and unearned fees on their loans.

Bencivengo confirmed to Southern District of California

The Senate today confirmed Judge Cathy Ann Bencivengo to a seat on the United States District Court for the Southern District of California this afternoon by a vote of 90 to 6.

Judge Bencivengo, who served as a United States Magistrate Judge in San Diego, was nominated to the seat on May 11, 2011. On October 6, 2011, the Senate Judiciary Committee reported her nomination to the full Senate on a unanimous voice vote.

Judge Bencivengo waited 127 days for the full Senate to consider her nomination; 275 days have passed since she was nominated to fill the seat which has been designated a judicial emergency vacancy by the Administrative Office of the U.S. Courts. The seat has been vacant for 614 days. 

Today’s vote is only the second Senate confirmation vote of 2012 on judicial nominees, despite the fact that all but two of the 18 nominees awaiting final votes were forwarded out of committee with unanimous or overwhelming bipartisan support. Nine pending nominees are nominated to fill emergency vacancies.

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

A record of obstruction

Alliance for Justice recently released a report on the state of the judiciary during the first three years of the Obama administration. In the report, we examined the historic obstruction of President Obama's nominees by Senate Republicans.

The Senate has confirmed far fewer nominees at this point in President Obama’s first term than it had confirmed for his two predecessors in office. Specifically, he trails President Bush by 47 confirmations and President Clinton by 56 confirmations.

President Bush and President Clinton had approximately 200 confirmed nominees at the end of their first terms, and had approximately 70 more nominees confirmed than Obama had at the end of three years. In order for President Obama to match President Bush’s confirmations, over 70 nominees would need to be confirmed this year.

In addition to confirming fewer of President Obama’s nominees than his predecessors, the Senate has also confirmed President Obama’s nominees at a lower rate. This trend is particularly notable for district court nominees, where Obama badly trails both Presidents Bush and Clinton.

For more information on the pace and obstruction of Obama's judicial nominees, download our latest report, "The State of the Judiciary: Judicial Nominations During the First Three Years of the Obama Presidency."

4 Nominees Scheduled for Consideration Today

The Senate Judiciary Committee is scheduled to consider 4 District Court nominees today:
  • Kristine Baker (Eastern District of Arkansas)
  • John Lee (Northern District of Illinois)
  • John Tharp, Jr. (Northern District of Illinois)
  • George Russell (District of Maryland)

During the Obama presidency, it has been the habit of Republican senators on the judiciary committee to automatically delay every first-time consideration of nominees by one week, so it is likely that the committee will not be permitted to hold votes on these four nominees today.

Lee, Tharp, and Russell have all been nominated to seats that are considered to be judicial emergencies.

106 Vacancies

With the resignation of United States District Court Judge Richard Holwell (SD NY) this week, there are now 106 current and future vacancies in the federal court system, 33 of which are considered judicial emergencies. 

Nominees have been named for 41 of those vacancies. Nineteen of these seats could be filled immediately if the Senate would agree to hold simple up or down votes on the nominees who have been voted out of the Senate Judiciary Committee—17 of them either unanimously or with overwhelming bipartisan support.

President Obama Nominates Rose, Shea

President Obama yesterday nominated Stephanie Marie Rose to the United States District Court for the Southern District of Iowa, and Michael Shea to the United States District Court of Connecticut.

Ms. Rose is currently the United States Attorney for the Northern District of Iowa; she has been appointed to fill a seat that will become vacant in July when incumbent Judge Robert W. Pratt takes senior status. Mr. Shea is in private practice at Day Pitney LLP in Hartford, CT; he has been appointed to fill the seat vacated on November 28, 2011 when Judge Christopher Droney, who previously held the seat, was confirmed to the Second Circuit.

With these nominations, there are now 41 nominees pending for the 105 current and future vacancies in the federal judiciary. For the most up-to-date and comprehensive information on judicial nominations, visit the Judicial Selection Project webpage.

Disappearing Cases

Guest post by Paul Bland

This probably won’t shock you: five members of the U.S. Supreme Court really like mandatory arbitration.

Over the last few decades, the most important cases pertaining to arbitration heard by the Court have been decided 5-4 — with the dissenting four dissenting strongly.

“Mandatory arbitration” sounds complex, but it’s straightforward enough: instead of taking a company that has harmed you to court (filing a lawsuit), you are required to pursue your grievance in arbitration.

Straightforward, yes. Harmless, not in the least. Arbitrations take place in front of an arbitrator, not a judge and jury. Arbitration clauses require people to act individually, and prevent them from joining together in a class action.  They are often costly. They happen behind closed doors. And, historically, they favor business interests over individuals.

That is, if they ever get far enough along to be resolved. Many just disappear.

Let me explain.

In the consumer, employment, medical and securities contexts, this phenomenon is known as “forced arbitration” because unaware individuals have the terms of arbitration clauses dictated to them by corporations (through contracts that individuals are required to sign).

The courthouse doors are slammed shut by these clauses. As a consequence, consumer, civil rights and other cases are thrown out of court.

So what happens then? Are large numbers of valid consumer and civil rights cases actually pursued in and resolved by arbitration, or do they just disappear? Is the Supreme Court really shifting disputes from one forum (court) to another (arbitration), or is it just getting rid of the cases altogether?

At the Ninth Circuit’s 2011 Judicial Conference, a few reporters got an unusual chance to interview Justice Anthony Kennedy. They asked him about the Supreme Court’s shrinking docket. Justice Kennedy responded, “A lot of big civil cases are going to arbitration. I don’t see as many of the big civil cases.”

Now it’s true that a lot of large commercial business-to-business cases are going (and have been going for years) to international arbitration. But have more civil cases involving cutting-edge statutory issues in consumer and civil rights law — the kinds of cases that the U.S. Supreme Court used to decide — been going to arbitration?

The answer largely appears to be no: consumer cases are simply not going to arbitration in any appreciable numbers.

Take the American Arbitration Association and its consumer docket. The AAA is named sole arbitrator in hundreds of millions of consumer contracts. (AT&T Mobility alone has over 60 million customers and requires its customers to take significant disputes to the AAA. Numerous other corporations with AAA clauses have tens of millions of customers.) So with the AAA specified in millions of consumer contracts, are large numbers of consumers rushing to arbitrate their disputes before the AAA?

Not so much. In 2010, the AAA’s complete consumer docket — every single case — for the entire country amounted to around 1,300 cases. Remember, that’s out of hundreds of millions of individuals bound to arbitration by their contracts. 1,300 cases.

The year before, the AAA consumer docket was even lower, in the 900s.

When the National Arbitration Forum was operating (a corruption scandal forced it to stop doing consumer arbitrations in 2009), it averaged a grand total of about 50 consumer cases a year over a five year period.

Each year, hundreds of thousands of consumers send complaints to the Federal Trade Commission or their state attorney general. Hundreds of thousands also file complaints with Better Business Bureaus or post them to online consumer complaint sites.

The reality is that there are millions of consumers in America with legitimate disputes against corporations.

But the one thing most consumers with disputes don’t do is navigate the unfamiliar (and often hostile and expensive) world of forced arbitration. As a federal district court noted in one recent case, while thousands of AT&T Mobility customers had expressed great unhappiness with the corporation’s behavior, only an “infinitesimal” number of its customers would or could in reality go through its arbitration system.

A ton of American consumers have claims, and many involve illegal acts by corporations. But so many of those claims never see the light of the day. Justice Kennedy can say that many important civil cases are going to arbitration. But for consumer cases, Justice Kennedy is wrong. Nearly all of the cases are not going to court, they are just going away.

This blog entry originally appeared on the Wexler Wallace Blog.

Paul Bland Jr. is a senior attorney at Public Justice. He is responsible for developing, handling, and helping Public Justice’s cooperating attorneys litigate a diverse docket of public interest cases. Paul has argued and won more than 20 cases that led to reported decisions for consumers, employees or whistleblowers in four of the U.S. Courts of Appeals and the high courts of six different states. He is currently handling or assisting with appeals before the U.S. Court of Appeals for the Eleventh Circuit; the California, Florida, Kentucky and Nevada Supreme Courts; and the Maryland Court of Appeals. 

Age of Obama's Judicial Nominees

Alliance for Justice recently released a report on the state of the judiciary during the first three years of the Obama administration. In addition to vacancy, nomination, and confirmation rates, we examined demographic and background information on each of Obama's nominees.

The average age of President Obama's appointees -- 52.0 years old -- is considerably higher than the average age of any of the last three Republican presidents' confirmed judges. The age discrepancy is particularly glaring for circuit court appointees, who have been, on average, 4-6 years older than Republican presidents' appointees. Republican presidents have shown no hesitancy in nominating people under 50 to circuit court seats, and in fact placed a premium on selecting young nominees.

If you examine the age distribution of Obama's nominees, it is apparent that they skew marginally toard the upper 50s, raising his average above his predecessors.

Click to enlarge

For more information on the demographic and professional backgrounds of Obama's judicial nominees, download our latest report, "The State of the Judiciary: Judicial Nominations During the First Three Years of the Obama Presidency."

Judiciary Committee Reports Paul Watford to Senate Floor

This morning the Senate Judiciary Committee reported 9th Circuit Court of Appeals nominee Paul Watford to the Senate floor in a vote of 10-6 along party lines, with two Republican senators (Jon Kyl and Lindsey Graham) voting “Present.” 

California Democratic Senator Dianne Feinstein gave a statement in support of Mr. Watford, praising his legal record and highlighting his bipartisan support. Watford’s nomination is supported by Jeremy Rosen, head of the California Branch of the Federalist Society, conservative Chief Justice of the 9th Circuit Alex Kozinksi, and the CEOs of Verizon, Mattel, and Google. Although several Republican senators voted against Watford, none of them spoke against his nomination at the meeting. 

The 9th Circuit Court of Appeals is currently faced with four judicial vacancies and a caseload of 557 cases per judge (.pdf download), more cases than any other circuit. Each vacancy in the 9th Circuit has been declared a judicial emergency.

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