Slow-Walking the Nominations Process in Committee

The Judiciary Committee reported three nominees to the Senate floor at its Executive Meeting Thursday morning.  Committee votes on Richard Taranto to fill an appellate seat on the Federal Circuit and Robin Rosenbaum to fill a seat in the Southern District of Florida were supposed to be taken on March 15.  However, due to the failure of sufficient committee members to appear on that day (seven of the Democratic committee members were present, but Ranking Member Senator Chuck Grassley (R-IA) was the only Republican to appear), the Committee was two members short of the quorum required to do business. 

While they were still waiting to see if more members would show up, Senator Grassley noted that if a quorum was established he would be requesting that consideration of Taranto and Rosenbaum be delayed for a weekChairman Patrick Leahy (D-VT) noted that he and Senator Grassley had discussed establishing a process whereby business meetings held for the sole purpose of invoking the extension of consideration of nominees could take place without a quorum, but that other Republican members of the Committee had objected.  

Before recessing the meeting where no business had been able to take place, Senator Leahy stated, “The Republicans requested this meeting, even though it would be a pro forma type of thing.  They seem to be boycotting the meeting.” 

The same thing happened at the regularly scheduled business meeting of the Judiciary Committee the following week, March 22, when Taranto, Rosenbaum, and Gershwin Drain, nominee to the District Court of the Eastern District of Michigan, were scheduled to be considered.  Eight of the Democratic Committee members sat and waited; they were two members short of a quorum.  Twenty-six minutes after the meeting was scheduled to begin, Senator Grassley arrived, but no other Republican members came.  

When Senator Leahy again noted that it appeared that the Republican members were boycotting the committee, Senator Grassley responded that he was not aware of a boycott attempt, but acknowledged that it would be unlikely that any other member of his caucus would appear and allow the committee to conduct its business.  Senator Leahy recessed the committee after stating that he would convene it later that afternoon off of the Senate floor when a series of votes were scheduled to take place.  That meeting did occur, and the Republican committee members invoked the automatic week’s extension, with the result that no action to move the nominations process forward occurred.

A quorum did appear on March 29.  Taranto and Rosenbaum were reported out of Committee on voice votes with only Senator Lee opposing them.  A roll call vote was held on Drain, resulting in a party-line vote of 10-8.  Five other listed nominees – one to a Circuit Court seat and four to District Court seats – were held over.  Since the Senate is leaving on recess after this week, these five judges – William Kayatta, Jr. to the First Circuit, John Fowlkes, Jr. to the Western District of Tennessee, and Kevin McNulty and Michael Shipp to the District of New Jersey – will not receive consideration by the Committee to be advanced to the Senate floor for confirmation until April 19 at the earliest.

In addition to many other tactics to delay, slow-walk, and obstruct the nominations process – tactics that range from refusing to review background materials in a timely manner, to failing to return blue slips, and to filibustering consensus nominees – Republicans in the Senate are also shirking their Constitutional duty to advise and consent by refusing to show up and let the Committee conduct its business.  While they are playing the politics of obstruction, justice for millions of ordinary people is being delayed and denied due to a judicial vacancy crisis that has 1 in 10 seats on the federal bench empty.  For each day that the nominations process is stalled in the Senate, Americans across the country are prevented from having their day in court.

For the most comprehensive, up-to-date information on judicial nominations, visit the Judicial Selection Project website.

This Week in Judicial Nominations

This week, the Senate incrementally moved forward with its responsibility of confirming appointees to the federal bench in the midst of a judicial vacancy crisis that has left 1 in 10 seats empty. Three District Court nominees had their Senate Judiciary hearings, three were reported out of committee to await their confirmation votes on the Senate floor, and two were confirmed as part of the deal on confirmation votes struck earlier this month between Majority Leader Harry Reid (D-NV) and Minority Leader Mitch McConnell (R-KY).

On Wednesday, the Senate voted to confirm United States District Court nominees Miranda Du to serve the District of Nevada by a vote of 59-39 and Susie Morgan to serve the Eastern District of Louisiana by a vote of 96-1.  It took 147 days for Du, and 140 days for Morgan, to receive their confirmation votes after being reported out of the Judiciary Committee.  Two hundred and forty days passed from the date of Du’s nomination to her confirmation to fill an emergency judicial vacancy; the time was even longer for Morgan, who was in the Senate process for 296 days.

Earlier that day, hearings were held for District Court nominees Michael Shea, Gonzalo Curiel, and Robert Shelby nominated to the District of Connecticut, the Southern District of California, and the District of Utah, respectively.  The hearing was chaired by Senator Richard Blumenthal (D-CT); Ranking Member Senator Chuck Grassley (R-IA) and Senator Mike Lee (R-UT) were also in attendance.  President Obama appointed Curiel and Shelby on November 10 and November 30 last year, respectively; Shea was appointed on February 2 of this year.  The hearing was non-controversial.  Now, they await consideration by the Committee and a vote to report them to the Senate floor, where the waiting process for a confirmation vote will begin.  While Shea, who was nominated on February 2 of this year, had to wait 56 days from nomination to the time of his hearing, both Curiel and Shelby had to wait twice as long to take the next step forward in the confirmation process.  Curiel, nominated on November 10, 2011, waited 140 days for his hearing.  Shelby, nominated on November 30, waited 120 days.

The Judiciary Committee reported three nominees – Richard Taranto, Robin Rosenbaum, and Gershwin Drain – to the Senate floor on Thursday.  They join 15 other judicial nominees who are awaiting confirmation by the Senate before they can assume their seats and being to serve people by dispensing justice in our nation’s federal court system.  As the Senate is leaving town for a two-week recess, no further action will take place to confirm judges until April 16, when a vote on the nomination of Stephanie Dawn Thacker to the Fourth Circuit Court of Appeals is scheduled to take place.

By the Numbers
3 District Court nominees had hearings before the Senate Judiciary Committee
3 nominees reported out of Committee to the Senate floor: 1 Circuit Court nominee, 2 District Court nominees
2 District Court nominees confirmed

The week comes to a close with:

97 total judicial vacancies, including 33 judicial emergency vacancies
80 current vacancies; 17 future vacancies
17 circuit court vacancies; 80 district court vacancies
34 pending nominees; 63 vacancies without nominees
16 nominees pending in committee; 18 pending in the Senate

For the most comprehensive, up-to-date information on judicial nominations, visit the Judicial Selection Project website.

Corporate Court Decides Insider Trading Case

Yesterday the Supreme Court issued its opinion (.pdf download) in Credit Suisse Securities v. Simmonds, once again rendering a decision that limits the ability of plaintiffs to hold corporate wrongdoers accountable.

The case arises out of a series of Initial Public Offerings (IPOs) during the tech bubble of the late 1990s. The plaintiff, Vanessa Simmonds, was an investor who owned tech stocks underwritten by Credit Suisse and other investment banks. Simmonds alleges that underwriters for these IPOs manipulated stock prices using short-swing transactions in violation of the insider trading laws.

The main issue before the Supreme Court was whether the insider trading law's two-year time limit to bring suits begins to run when the profit is realized by insiders or when the required public disclosures are filed. Credit Suisse argued that actions must be brought within two years of the profits being realized and therefore Simmonds’ suit was time-barred. Simmonds argued that because insiders never filed the required disclosures when the profit was realized, the two-year limitations period never began to run. The district court dismissed the complaint on the grounds that the two-year limit had expired, but the Ninth Circuit agreed with Simmonds and reversed.

Yesterday, the Supreme Court, reversing the Ninth Circuit, held that the two-year statute of limitations continues to run, even when corporate insiders have failed to make the public disclosures that would give notice of the insider trading. While leaving open the possibility that traditional equitable tolling principles could apply in a case like this, the Court has nonetheless made it easier for corporate insiders to avoid liability for their illegal insider trading activity by simply violating the disclosure requirement.

A Question of Integrity Receives Telly Award

We're very pleased to announce that AFJ's original short documentary, A Question of Integrity: Politics, Ethics, and the Supreme Court, has been honored in the 2012 Telly Awards.

A Question of Integrity received a bronze award in the category of Non-Broadcast Productions - Charitable/Not-for-profit. The Telly Awards honor excellence in non-broadcast and online video, as well as local, regional, and cable TV commercials. Bronze and silver awards are given in each category.

Past AFJ documentaries, including Crude Justice (2010), Tortured Law (2009), and Supreme Injustices (2007), were also recipients of Telly Awards.

Confirmations for District Court Judges in Utah, New York, and D.C.

This afternoon, the Senate confirmed Judge David Nuffer to a seat on the United States District Court for the District of Utah, and Ronnie Abrams to a seat on the United States District Court for the Southern District of New York, both by overwhelmingly bipartisan votes of 96-2.  Additionally, Rudolph Contreras was confirmed to a seat on the United States District Court for the District of Columbia by an unopposed voice vote.

Nuffer, who since 2003 has been serving full time as a United States Magistrate Judge for the District of Utah, was nominated to the District Court on June 29, 2011. On October 13, 2011, the Senate Judiciary Committee reported his nomination to the full Senate on a unanimous voice vote. Utah's junior senator, Mike Lee, expressed no opposition to Nuffer's nomination during the judiciary committee's deliberation or committee vote. Lee nonetheless continued his political campaign against President Obama by voting against his home state's judge on the Senate floor.

Nuffer waited 162 days following his committee vote for the full Senate to consider his nomination; 268 days have passed since he was nominated to fill the seat, which had been declared a "judicial emergency."

Abrams, who has served as Special Counsel for Pro Bono at Davis Polk & Wardwell since 2008, was nominated on July 28, 2011. Abrams was reported out of the Senate Judiciary Committee by a unanimous voice vote on November 3, 2011, but was still forced to wait 141 more days for the Senate to confirm her; her wait time from nomination to confirmation was 239 days.

Contreras, who has served as an Assistant United States Attorney for the past seventeen years, was nominated on July 28, 2011 and reported out of committee on November 3, 2011 on a voice vote without opposition.  Like Abrams, he had to wait 141 days for the Senate to vote on his confirmation, and 239 days passed from the time he was first nominated.

The votes took place as part of a Senate deal to hold confirmation votes on 14 judicial nominees by May 7. Notwithstanding the current trickle of confirmation votes, the Senate is still far behind the pace it needs to maintain to address the 98 current and future vacancies on the federal bench, vacancies that stand in the way of everyday Americans being able to access justice through our federal courts.

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

Nonsense: House Bill Conflates Regulatory Uncertainty with Economic Uncertainty

This Tuesday, the House Judiciary Committee held a markup of HR4078, the Regulatory Freeze for Jobs Act. The act would impose a moratorium on all “significant regulatory action” until the national employment rate falls below six percent. As Congressman Jerrold Nadler (D-NY) said in the markup yesterday, the bill is just “nonsense and is based on  nonsense.”

Regulatory actions by the government enforce standards for clean water, safe food, child-safe toys, and privacy protection. Regulations prevent unsafe business practices from jeopardizing the health and rights of all Americans.

But Republicans on the committee say small businesses are being hurt by government regulations, offering soft statistics and ambiguous quotes from small business owners claiming that job loss and lack of economic growth over the past few years has been caused by “regulatory uncertainty” driven by undefined regulatory changes proposed or implemented by President Obama.

This  new “regulation nation,” as Chairman Lamar Smith (R-TX) said, is breaking the backs of small businesses. Experts dispute that claim.

Small business owners’ primary complaint is not regulatory uncertainty, but economic uncertainty;  in other words, a dearth of demand caused by a lack of customers and sales. As Rep. Nadler pointed out Tuesday afternoon, a Wall Street Journal survey of economists concluded that, “The main reason U.S. companies are reluctant to step up hiring is scant demand, rather than uncertainty over government policies, according to a majority of economists.”

Congressman Mel Watt said it best on Tuesday when he stated that uncertainty is major concern, but it’s not the uncertainty caused by over regulation, rather the uncertainty caused by no decisions on and finalizations of any regulation.

“My constituents are saying that we need to get on with adopting and finalizing regulation under Dodd-Frank so we know what the rules of the road are and can move forward," Watt said at the markup. "The problem I have with this bill is that it doesn't add to the level of certainty that business have because whatever those regulation are… will be put on hold, waiting for the unemployment rate to drop below six percent. If it drops below six percent for a little while, maybe they can gear up again and start writing the regulations. But if it happens to go back over six percent during that period then they have to suspend again.” That sounds like uncertainty in a nutshell.

So why all this talk about "regulatory uncertainty?"

This conflation of economic uncertainty and regulatory uncertainty is the only real basis the supporters of HR 4078 have for promoting a bill that would undermine standards and safeguards that both industry and the public rely upon. Regulations being targeted include implementation of the Food Safer Modernization Act, restrictions on oil speculation that could lower gas prices, enactment of pharmaceutical approval standards, and rules keeping our workplaces safe, and the end of pay loss for our veterans as well as ensuring family and medical leave for all military service personnel, just to name a few. All those regulations protect Americans. Suspending "significant regulatory actions" would put those protections in dire jeopardy... and wouldn't even achieve the bill's stated goal of helping small businesses.

After rejections of several amendments to the bill offered by Democrats -- such as excluding nuclear safety regulations from the moratorium -- one couldn’t help but think that perhaps "regulatory uncertainty" for small businesses wasn't the real focus of this bill. More likely, as conservative economist Bruce Bartlett admitted, it's “simply a case of political opportunism, not a serious effort to deal with high employment.”

Or put another way, the bill is nonsense, and is based on nonsense.

The Aftermath of Corporate Court’s Generic Drug Ruling

In PLIVA, Inc. v. Mensing, decided last term, the Supreme Court ruled that a generic-drug manufacturer cannot be held liable in state court for failing to inform the FDA that its label inadequately warns consumers of health risks. As Justice Sotomayor wrote in dissent, the majority’s holding in PLIVA created disparate liability schemes for brand name and generic drugs leading to “absurd consequences.”

AFJ and others noted at the time that the 5-4 ruling was likely to have wide-reaching effects, since generic drugs make up 75-80 percent of the prescription drug market.

Yesterday, the New York Times documented how extensive those effects have been already, including the dismissal of scores of suits by individuals who have suffered grievous physical injury as a result of inadequate warnings. The article also highlights that Congress or the FDA could rectify the Corporate Court’s mistake, but there is little sign that either will do so any time soon.
Now, what once seemed like a trivial detail — whether to take a generic or brand-name drug — has become the deciding factor in whether a patient can seek legal recourse from a drug company. The cases range from that of Ms. Schork, who wasn’t told which type of drug she had been given when she visited the hospital, to people like Camille Baruch, who developed a gastrointestinal disease after taking a generic form of the drug Accutane, as required by her health care plan.
“Your pharmacists aren’t telling you, hey, when we fill this with your generic, you are giving up all of your legal remedies,” said Michael Johnson, a lawyer who represented Gladys Mensing, one of the patients who sued generic drug companies in last year’s Supreme Court case, Pliva v. Mensing. “You have a disparate impact between one class of people and another.”

The Supreme Court ruling affects potentially millions of people: nearly 80 percent of prescriptions in the United States are filled by a generic, and most states permit pharmacists to dispense a generic in place of a brand name. More than 40 judges have dismissed cases against generic manufacturers since the Supreme Court ruled last June, including some who dismissed dozens of cases consolidated under one judge.

Public Citizen, a consumer advocacy group, has petitioned the Food and Drug Administration to give generic companies greater control over their labels, a rule change that could allow users of generic drugs to sue, but the agency said earlier this month that it needed more time to decide. “Congress can make this problem go away, and the F.D.A. could, too,” said Allison Zieve, the director of Public Citizen Litigation Group. “But we haven’t seen signs that either of them is paying much attention.” A spokeswoman for the F.D.A. declined to comment.

In a statement last week, Representative Henry A. Waxman, Democrat of California, who co-wrote the Hatch-Waxman Act, said he was exploring ways to address the issue, either through legislation or a rule change.
Mr. Waxman argued in a brief opposing the generic companies in the Supreme Court case last year that Congress had never intended for generic companies to be freed of all responsibility. “Congress did not intend for consumers’ rights to be categorically eliminated simply because they purchased a generic rather than a brand-name drug,” he wrote.

A Right to Sue the Government (Just Not Corporations)

On Wednesday, the Supreme Court issued its decision (.pdf download) in Sackett v. EPA, holding that the plaintiffs are entitled to judicial review of an EPA compliance order issued under the Clean Water Act.

The Sacketts bought a half-acre of land in a wetland area and, without seeking any environmental permits, filled it with dirt and rock in preparation for building a home. The EPA issued an order against the Sacketts to restore the property to its prior condition on the grounds that the land was wetlands protected by the Clean Water Act. The Sacketts went to court to seek court review of the EPA order before the EPA had an opportunity to bring an action in court to enforce the order. The U.S. District Court for the District of Idaho dismissed the case on the grounds that judicial review of the order was improper. The Ninth Circuit affirmed the lower court’s dismissal.

The Supreme Court, in a unanimous opinion written by Justice Scalia, has now reversed the Ninth Circuit’s decision. The Court held that the EPA order constituted a “final agency action,” of which plaintiffs could seek judicial review under the Administrative Procedure Act.

The justices’ concern that plaintiffs not be denied a judicial remedy against government regulation in this case stands in stark contrast to the plethora of recent cases in which the Court has denied plaintiffs a judicial remedy against corporate malfeasance. While Justice Alito waxed indignant in his concurrence about the “unthinkable” denial of due process the Sacketts experienced, he had no difficulty voting with the majority to deny such due process to plaintiffs who suffered physical injury from generic drugs in PLIVA v. Mensing, female workers who were discriminated against in Walmart v. Dukes and Ledbetter v. Goodyear Rubber & Tire Co., or consumers charged fees for “free” phones and held to unconscionable contract clauses in AT&T Mobility v. Concepcion.

It also bears noting that the Supreme Court recently denied the certiorari petition of General Electric in General Electric v. Jackson, a case very similar to this one challenging the constitutionality of administrative orders under Superfund. By allowing pre-enforcement review of orders under the Clean Water Act in Sackett, the Court has opened the door to similar review of Superfund order authority, making it increasingly more difficult for the EPA to do its work on multiple fronts. And although the Sacketts are two private citizens, the holding in this case will provide major benefits for corporate giants like General Electric seeking to challenge EPA orders.

By allowing the Sacketts to get court review of the order, the ability of the EPA to enforce timely compliance with the Clean Water Act is hampered. Further, this ruling could lead to future challenges by corporate interests of other important environmental regulations, such as the Clean Air Act and Superfund.

Groh, Fitzgerald Confirmed to District Court Seats

Yesterday the Senate confirmed Judge Gina Marie Groh to a seat on the United States District Court for the Northern District of West Virginia by an overwhelmingly bipartisan vote of 95 to 2 and Michael Fitzgerald to a seat on the United States District Court for the Central District of California by an overwhelmingly bipartisan vote of 91-6.

Groh, who since 2006 has been serving as a judge on the 23rd Judicial Circuit Court of West Virginia, was nominated to the District Court on May 19, 2011. On October 6, 2011, the Senate Judiciary Committee reported her nomination to the full Senate on a unanimous voice vote.  Groh waited 162 days following her committee vote for the full Senate to consider her nomination; 302 days have passed since she was nominated to fill the seat.

Fitzgerald, a partner at Corbin, Fitzgerald & Athey LLP in Los Angeles, was nominated on July 20, 2011.  He is the third openly gay Obama judicial appointee to be confirmed to serve on the federal bench.  Fitzgerald was reported out of the Senate Judiciary Committee by a unanimous voice vote on November 3, 2011, but was still forced to wait 134 more days for the Senate to confirm him to fill his emergency vacancy seat; his wait time from nomination to confirmation was 240 days.

Yesterday's votes were the first two in a Senate deal struck to hold confirmation votes on 14 judicial nominees by May 7.  With 100 current and future judicial vacancies on the federal bench, it is vital that the Senate continue to take action to confirm judges and ensure Americans access to a fully staffed judiciary when they turn to the courts seeking justice.

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

Disappointed by Senate's Return to Inadequate Confirmation Pace

For Immediate Release


Washington, D.C., March 14, 2012—Alliance for Justice President Nan Aron issued the following statement regarding the deal reached by Senate Majority Leader Harry Reid and Senate Minority Leader Mitch McConnell to allow votes on 14 judicial nominees over the next two months:
We are disappointed by the United States Senate’s continued delay in carrying out its constitutional responsibility. With 102 vacancies in the federal courts, the Senate should make the staffing of the judiciary a priority. But as we saw yet again today, many in the Senate would rather turn a routine confirmation process into a political spectacle.

After an attempted filibuster of 17 district court nominees who enjoyed bipartisan support, the Senate is now stringing out votes on 14 nominees over the course of three months. Those nominees could have been confirmed today.

Equally disturbing is Minority Leader McConnell’s assertion that President Obama has seen more of his nominees confirmed than President Bush. That couldn’t be farther from the truth. In fact, after the first three years of his presidency, 168 of President Bush’s nominees had been confirmed. In comparison, only 122 of President Obama’s were. By the end of this year, the Senate will need to confirm 76 more nominees in order for President Obama to have seated as many new judges as President Bush did during his first term.

While District Court Case Filings Rise, Republicans Obstruct District Court Nominees

Only one day after Republican obstruction forced Senate Majority Leader Harry Reid (D-NV) to file cloture petitions on 17 long-pending district court nominees, the nonpartisan Administrative Office of the U.S. Courts released a report finding that “total civil and criminal filings in the district courts rose 2 percent to 367,692 in fiscal year 2011.”

The Administrative Office data reflected a surging caseload in types of cases that are critically important to millions of American businesses and individuals.  For instance, filings in consumer credit cases rose 15%, filings in intellectual property cases rose 11%, and filings in civil rights cases rose 5%.  Digging even deeper into the data, you find that civil rights filings related to the Americans with Disabilities Act rose 17% and intellectual property rights filings involving patents jumped 24%.

At the same time that courts have been swamped with this wave of new case filings, the federal judiciary has endured a judicial vacancy crisis.  There are now 85 vacant or soon to be vacant federal district court seats—approximately one out of every 8 judgeships. Twenty-eight of these vacancies are so dire that they have been declared to be “judicial emergencies.”

Despite these facts, Republican senators have blocked confirmation votes for unquestionably qualified, consensus nominees.  Of the 17 district court nominees awaiting final votes, eight were reported out of the Senate Judiciary Committee unanimously, and another five were reported out with only one vote in opposition.  Eight of these nominees would fill judicial emergency seats.  Twelve of these nominees would fill vacancies in states with at least one Republican senator.

Moreover, as the Administrative Office findings show (.pdf link), caseloads rose in the districts of 11 of the 17 pending nominees.  Two cite just two examples:
  • The caseload rose 9.7% in the Southern District of Texas.  Nominee Gregg Costa was nominated to a vacancy in this district in September 2011, and he was reported out of the judiciary committee unanimously.
  •  The caseload rose 10.9% in the Western District of Missouri.  Nominee Brian Wimes was nominated to a vacancy in this district in September 2011, and he was reported out of the judiciary committee with only one vote in opposition.  
Nonetheless, Republicans are obstructing nominees at a historic pace.  The 17 district court nominees have been pending on the floor for over 80 days on average, which is four times as long as the 22 days on average that President George W. Bush’s district court nominees waited.  Moreover, an amazing 57 of Bush’s first-term district court nominees were confirmed within a week of being reported, while only five of President Obama’s nominees have received the same treatment.

With rising caseloads and dozens of judicial emergencies plaguing our courts, millions of Americans are being denied access to justice, often with dire consequences for their lives and livelihoods.  It’s time for the Republican obstruction to end. 

What is at Stake in the Healthcare Cases

Guest post by Professor Timothy Jost

The challenge to the Affordable Care Act currently pending in the Supreme Court has been billed as the most important Supreme Court case of the decade. It is certainly that, and for more reasons than one.

The case before the Supreme Court involves four issues. The first, and most widely publicized, involves the constitutionality of the ACA’s requirement that most Americans be insured. The second question is whether the federal courts can hear a challenge to the “minimum coverage requirement” now or whether they must wait until a tax is imposed to enforce the requirement in 2015. Third, the Court will consider how much of the ACA must be thrown out if the minimum coverage requirement is held unconstitutional. And finally, the Court will review the claim of the twenty-six plaintiff states that the expansion of Medicaid to cover all adults with incomes below 133 percent of poverty is unconstitutional.

A finding that the minimum coverage requirement is unconstitutional — that Congress lacked authority to impose the requirement under its power to regulate interstate commerce or its power to tax and spend — would have a devastating effect politically. While, in fact, the argument that the requirement is unconstitutional finds support neither in the text of the Constitution nor in precedent, the Supreme Court has never considered a challenge to a law quite like this before and it is possible that the Court will find it unconstitutional. If, as is likely, the Court upholds all or most of the rest of the ACA, the practical effect of such a ruling would be serious, but not fatal. Millions more Americans would remain uninsured or pay higher prices for coverage, but the rest of the law could go into effect. Indeed, much of it is already in place.

But the political damage caused by such a ruling would be dramatic. Fox News would trumpet “Obamacare Held Unconstitutional,” and many Americans would believe it. Many states that are already dragging their feet at implementing the law would refuse to move forward. Communicating the precise and limited nature of the decision would prove immensely difficult.

A holding that the Medicaid expansions are unconstitutional, on the other hand, would not only cause messaging problems, but could fundamentally change the nature of our federal system. The basic claim of the states is that the ACA Medicaid provisions coerce them unconstitutionally to expand Medicaid coverage under the threat of losing federal support for their current program — their largest source of federal funding. Relying on dicta in a couple of Supreme Court cases, the states claim that this is unconstitutional.

An adverse holding on the Medicaid issue would leave millions of poor Americans uninsured. It would also, however, call into question dozens of federal programs in education, civil rights, transportation, and indeed national security that depend on conditional federal grants to the states. A ruling that the national government cannot require states to meet specific conditions to qualify for federal funding would end our federal system as we know it.

Whatever the Supreme Court decides, it is essential that Americans who support justice help their neighbors understand the true effect of the decision — the limited scope of a limited decision, or the dangerousness of broad ruling that could threaten not only the ACA, but also many other programs from which Americans benefit every day. This is the task that lies before us if the Court fails to do the right thing.


Timothy S. Jost holds the Robert L. Willett Family Professorship of Law at the Washington and Lee University School of Law. He is a co-author of a casebook, Health Law, used widely throughout the United States in teaching health law, and of a treatise and hornbook by the same name. Jost is also the author of Health Care Coverage Determinations: An International Comparative Study; Disentitlement?The Threats Facing our Public Health Care Programs and a Rights-Based Response; and Readings in Comparative Health Law and Bioethics.

Gulf Oil Spill Legal Processes Wind Down

On March 3rd, a major development occurred in the ongoing legal fallout from the Deepwater Horizon oil rig explosion and oil spill, when a mass settlement was reached between BP and the Plaintiffs’ Steering Committee. 

The settlement occurred nearly two years after an explosion on the rig leased to and operated by BP killed eleven workers, injured seventeen more, and unleashed a torrent of oil into the Gulf of Mexico.  In the spring and summer of 2010, the world watched as over 200 million gallons of oil flowed for almost three months, pouring into the open water, damaging economic livelihoods and the coastal environment in profound ways.  Additionally, BP released 1.84 million gallons of chemical dispersants, with the eventual impact on health and jobs impossible to know with certainty.

The Deepwater Horizon spill caused injuries all along the Gulf coast, and prompted countless lawsuits by all sorts of entities, including individuals and businesses.  As one might expect, a great many of these lawsuits involved claims by private individuals for adverse health effects caused by the spill and its aftermath, damage to property, and damage to economic livelihoods by everyone from oyster fishers to tourism industry workers.  These private suits were compiled together in Multi-District Litigation 2179 in New Orleans, with a Plaintiffs’ Steering Committee appointed by the court to handle the cases.  This past week, BP, with the Plaintiffs’ Steering Committee, announced a settlement of a “substantial majority” of such claims, subject to final written agreement.

In total, BP has estimated that the settlement will cost roughly $7.8 billion, though plaintiffs note that there is no cap for plaintiffs’ recovery.  This settlement is divided into two separate agreements, one that covers medical costs, and the other that covers economic costs.  Both agreements would resolve claims on an individual basis, meaning that each claim will be looked at individually, and a formula will be applied to calculate the value of each claim.  As for the medical claims, BP would cover costs to clean-up workers and individuals harmed by exposure to the oil and dispersants.  It would also cover people whose physical symptoms have not yet developed, for 21 years of monitoring, and $105 million for improved access to health care in the region.

BP will also cover various economic claims, including lost profits, property damage, loss of subsistence and other use of property and land, and boat owner claims whose vessels aided in the cleanup efforts.  The deadline for filing claims will be extended by a year, into 2014 (under the Oil Pollution Act, the three-year statute of limitations for bringing claims would otherwise have expired in 2013), and economic loss will be calculated by looking at a broad range of pre-disaster yearly data, not just at the pre-disaster period in 2010.  Claimants who suffered economic loss due to the drilling moratorium put in place by the Obama Administration following the Deepwater Horizon disaster are not included in this settlement.

Fortunately, it appears that the settlement process will be significantly more transparent than the heavily criticized GCCF process. (.pdf link)  All claims pending before the GCCF will be automatically transferred to the new settlement system, and the PSC lawyers believe the calculation of damages will be more transparent and flexible.  BP can appeal awards of over $25 thousand, but if BP loses that appeal, BP will owe the claimant a 5% penalty.  Additionally, claimants may still opt out of this settlement architecture and take their chances in individual litigation.

This settlement does not resolve all legal claims in connection with the explosion and spill.  Most notably, the federal government still has open investigations into BP under the Clean Water Act and other statutes, including perhaps criminal investigations.  (Federal law may require BP to pay fines of up to $4300 per barrel, adding up to tens of billions of dollars.)  Nevertheless, this settlement has the potential to resolve a vast number of claims for personal and economic injury caused by the Deepwater Horizon catastrophe.

Alliance for Justice has played a substantial role in bringing public attention to the critical issues surrounding the Deepwater Horizon accident, its effects, and the search for justice.  In 2010, we devoted our yearly “First Monday” film project, the award-winning documentary film Crude Justice, to looking at the fight for fairness for communities and individuals adversely affected by the oil spill. 

AFJ was instrumental in helping to secure $2 million to pay for legal aid attorneys to assist victims of the spill.  A year after the spill, we published an in-depth report (.pdf link) on how the legal process was and wasn’t working to help victims achieve justice.  In February of 2011, we submitted comments (.pdf link) to the GCCF, analyzing its methods of calculating damages for claimants. 

Although this chapter of the BP litigation may finally be closing, the fallout from the Deepwater Horizon disaster will continue to affect Gulf Coast communities for years to come.

Supreme Court Calls for Reargument in Human Rights Case

In an unexpected move on Monday, the Supreme Court ordered expanded arguments in the case of Kiobel v. Royal Dutch Petroleum, on appeal from the Second Circuit. The Supreme Court heard arguments in the case just last Tuesday, but less than a week later, it ordered the parties to submit new briefs on the question of extraterritoriality—that is, whether the Alien Tort Statute (“ATS”) covers violations of international law committed overseas.

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. The narrow question Kiobel originally presented to the Supreme Court was whether corporations can be held liable under the ATS, a statute that gives U.S.  federal courts jurisdiction over civil actions by aliens for torts committed in violation of international law. 

However, during last week’s oral argument, some of the justices raised questions about whether the ATS allows U.S. courts to hear lawsuits for violations of international law that occur on foreign soil. Justice Alito pointedly asked plaintiffs’ counsel Paul Hoffman, "What business does a case like this" -- a suit by foreign nationals against a foreign-based corporation for its alleged complicity in state-sponsored torture and murder in Nigeria -- "have in the courts of the United States?"

The new order to reargue broadens the question of the case to "whether and under what circumstances the Alien Tort Statute allows courts to recognize a cause of action for violations of the law occurring within the territory of a sovereign other than the United States." Ironically, when the Second Circuit held that corporations were not liable under the ATS, it was reaching out to consider a question that had not been raised in the district court. The Supreme Court is now reaching out to expand the question presented even further in a manner that suggests the possible evisceration of the ATS as a means for victims of human rights abuses to seek recompense.

Jurisdiction for American courts to hear cases between foreigners based on foreign conduct is well established in legal history. The Alien Tort Statute was originally enacted as part of the 1789 Judiciary Act, and the tradition of transnational cases goes back before the Revolutionary War. If the Court ultimately decides that the ATS does not confer jurisdiction for acts that occur abroad, it will be overturning a precedent as old as our country.  If the Court “merely” decides that corporations are not liable parties under the ATS, it will be allowing corporations to pursue profit no matter the human cost. There was another recent case in which the Court ordered reargument on an expanded question concerning long-standing precedent and corporate personhood.  It was called Citizens United v. FEC.

Study Shows that Justices Share Unusually Narrow Life Experiences

On Sunday, the Washington Post looked at the life experience of the current Supreme Court justices. It examines a paper written by Professor Benjamin Barton called “An Empirical Study of Supreme Court Justice Pre-Appointment Experience” that reveals just how narrow the pre-Court life experiences of justices of the Roberts Court have been.

From the establishment of the Court through the tenure of Justice Sandra Day O’Connor, there had always been at least one justice on the Supreme Court who held elective office. Since the confirmation of Justice Samuel Alito, however, nobody on the Supreme Court has ever won an election. This is perhaps the most striking finding of Barton’s study, though there are others. On the current Court, no justice was ever a state court judge, and only Justice Sonia Sotomayor was a trial judge.

Justices on the current Court are much more likely to have private practice experience in the largest law firms, which tend to have large corporations as clients, and much less likely to have private practice experience with small or solo practice firms. In fact, only two justices have never had private practice experience, and they both sit on the Court today (Justices Stephen Breyer and Samuel Alito).

The Supreme Court is in danger of becoming unrepresentative of America as a whole, and even of the legal profession. Justices who have spent time in the biggest law firms defending corporate clients, and who have resided for longer and longer inside the insular legal environment of Washington, DC, bring their own valuable experiences to the Court’s chambers. However, when these experiences are the only ones represented by justices of the Supreme Court, perspective and insight about the law as it is applied to a wide variety of people and situations may be missing. 

Happily, the Supreme Court has more gender and ethnic diversity than ever before. The historical trend of opening up the political space to more and more Americans has reached to this most elite of institutions. One of the only two African American justices in history sits on the current Court. The first Hispanic-American justice was seated only a few years ago. Three of the four female justices in history are hearing cases, making a Court where one-third of the justices are women.

Ensuring gender and ethnic diversity on the federal bench allows the judiciary to draw upon the breadth of American experience and history in rendering equal justice under law. But it is just as important that we do not lose sight of the importance of having a diversity of professional backgrounds as well.

We should make sure that the Supreme Court has an understanding of, for example, the difficulties facing public defenders and their clients, the realities of practicing in all sizes of law firms with all types of cases, the knowledge of the legal system that comes only from extensive experience with trial practice, the importance of public interest firms in ensuring the rights of everyday Americans, and the way that the decisions and logic of the Court can affect Americans outside the Beltway.

Alliance for Justice recently published an extensive report on President Obama’s progress on judicial nominations through his first three years. We found that President Obama has a stellar record of appointing women and minorities to the bench, but that he has appointed more prosecutors and attorneys from large law firms than public defenders or public interest attorneys. In our Judicial Selection Snapshot, we provide up-to-date information about all federal judicial nominees, including information on the nominees’ professional backgrounds.

Professor Barton has shed light on the historical anomaly that is the current Roberts Court, and has made a powerful argument on why this lack of diversity in the marbled cloister of the Supreme Court merits the attention of all Americans who care about ensuring that the Supreme Court provides equal justice for everyone. Alliance for Justice will continue to fight to make sure that all levels of the federal judiciary are filled by judges with diverse life experiences prior to joining the bench.

Bringing ethics reform to the Court's front door

Nan Aron with Congresswomen Eleanor Holmes Norton and Louise Slaughter

Alliance for Justice President Nan Aron yesterday joined members of Congress, several concerned organizations, 212 law professors, and over 100,000 citizens in calling for the Supreme Courtto voluntarily agree to formally adopt the Code of Conduct for U.S. Judges and put an end to the ethical ambiguity that has damaged public confidence in the Court and its justices.

Speaking at a press conference on the steps of the Supreme Court along with Congresswomen Louise Slaughter and Eleanor Holmes Norton and Congressman Earl Blumenauer, Aron called for immediate ethics reform, saying, "It's no secret that this is going to be a landmark year for the Supreme Court. There will be big cases and intense public scrutiny. If there ever was a time for the Court to buttress public confidence in its propriety and objectivity, this is it. With so much at stake, there must be no hint of favoritism or bias. We can't afford to have any questions of integrity looming over the justices."

The Rochester Democrat & Chronicle reported:
Joined by Democratic Rep. Earl Blumenauer of Oregon and Democratic Del. Eleanor Holmes Norton of the District of Columbia, [Rep. Louise] Slaughter said 31 members of Congress have signed a letter to Chief Justice John Roberts urging the court to formally adopt a judicial code of ethics...

Similar letters have been sent by government watchdog groups and more than 200 law professors.

The letters were prompted by reports over the last three years that Supreme Court justices have spoken at fundraisers for advocacy groups such as the Federalist Society, the Intercollegiate Studies Institute, the Heritage Foundation and the National Association of Broadcasters.

With controversial cases pending this year involving affirmative action and the constitutionality of the 2010 health care reform law, "there should not even be a hint of bias or favoritism’’ on the court, Nan Aron, president of the Alliance for Justice, said.
In addition, Professor William Yeomans of the Washington School of Law at American University, unveiled a letter signed by 212 law professors asking the Supreme Court itself to initiate the process of formally adopting the Code of Conduct. A copy of the letter can be downloaded here.

Following the press event, Alliance for Justice co-hosted a briefing for Congressional staffers. The briefing featured an all-star panel consisting of Yeomans, Dahlia Lithwick of Slate, and Sherrilyn Ifill of the University of Maryland.

Many of the issues raised in the press conference and the staff briefing are addressed in AFJ's short documentary film, A Question of Integrity: Politics, Ethics, and the Supreme Court. You can watch the entire film online at YouTube now.

Click here for a gallery of photos from the day's events.

Report Finds Wide Variations in Federal Sentencing

The Transactional Records Access Clearinghouse [TRAC], a non-partisan research organization associated with Syracuse University, has released a report on federal criminal sentencing of the last five years. 

The report analyzes over 370,000 criminal cases completed in federal courts during the last five years and compared the records of each judge to the sentencing of other judges on their court. TRAC’s findings suggest that wide variations exist between sentences handed down for similar cases by judges within the same district. The widest variations in sentencing were found in drug cases, and wide variations also exist in white collar crime cases.

TRAC raises questions about the extent to which judges are influenced in their sentencing by factors other than the facts of the case. The report suggests that while judges have discretion in sentencing under the federal sentencing guidelines, a fair court system requires that judges not differ widely in their typical sentence for similar types of cases.   

For more information about the report, visit TRAC’s website.

Action on Judicial Nominations

Steps taken this week to address the judicial vacancy crisis that has left 1 in 10 seats on the federal bench empty include the confirmation of one judge, hearings for three nominees, a Senate Judiciary Committee vote on one nominee, and the nomination of new people to become Article III judges.

On Monday, the Senate voted to confirm Margo Kitsy Brodie to be a United States District Court judge in the Eastern District of New York by an overwhelmingly bipartisan vote of 86-2.  Due to obstruction from Senate Republicans, it took 145 days for Judge Brodie to receive her final confirmation vote after being unanimously reported out of the Senate Judiciary Committee on October 6 of last year.

Judiciary Committee Hearings for three nominees were held on Wednesday: Richard Taranto to serve as a United States Circuit Judge for the Federal Circuit, Gershwin Drain to serve as a United States District Court judge for the Eastern District of Michigan, and Robin Rosenbaum to serve as a United States District Court judge of the Southern District of Florida.

That evening, President Obama sent the names of two new judicial nominees to the Senate: Brian Davis, nominated to the Middle District of Florida, and John Dowdell, nominated to the Northern District of Oklahoma.

Thursday, the Judiciary Committee reported Andrew Hurwitz to the Senate floor on a bipartisan vote of 13-5; consideration of four additional nominees was stalled due to Republicans reflexively invoking a Committee rule allowing for a one-week delay without having to give a reason.

During the hearing on Wednesday, committee Chairman Senator Patrick Leahy (D-VT) spoke about Republican obstruction of the entire nomination process, both in Committee and on the Senate floor.  He said:
I have accommodated Senator Grassley's preferred schedule now for several months, holding a hearing for only one nominee in all of December and moving our last hearing back a week at his request. Regrettably today's hearing is another with less than a full slate of nominees. This is true of both of our February hearings because the minority did not review background paperwork of the nominees I wanted to include. With vacancies on Federal courts across the country remaining extremely high, as they have throughout the term of the Obama administration, we cannot afford to slow down our consideration of nominations in this manner.
Senator Leahy went on to note that with judicial vacancies at historic highs, the crisis on the courts is being exacerbated with every day that Republican senators slow-walk and obstruct the process of giving due consideration to the President’s nominees and allowing them a timely up-or-down confirmation vote by the full Senate.

By the Numbers
2 new nominations
3 nominees who had hearings before the Senate Judiciary Committee: 1 circuit court nominee and 2 district court nominees
1 nominee reported out of Committee to the Senate floor
1 nominee confirmed: Margo Kitsy Brodie to the Eastern District of New York

The week comes to a close with:

103 total judicial vacancies, including 34 judicial emergency vacancies
84 current vacancies; 19 future vacancies
17 circuit court vacancies; 86 district court vacancies
43 pending nominees; 60 vacancies without nominees
23 nominees pending in committee; 20 pending in the Senate

For the most comprehensive, up-to-date information on judicial nominations, visit the Judicial Selection Project website.

Experts discuss Kiobel v. Royal Dutch Petroleum

The New York Times this week featured a "Room for Debate" column on the case of Kiobel v. Royal Dutch Petroleum, which was argued before the Supreme Court on Tuesday. Participants in the debate included Tyler Giannini and Susan Farbstein of Harvard Law School's International Human Rights Clinic, who submitted an amicus brief in the case.

To learn more about the Kiobel, check out Gianni and Farbstein's recent analysis for AFJ's Justice Watch blog, or download our comprehensive report on the case.

At stake in Kiobel is whether corporations can be held liable for participating in the commission of human rights violations under the Alien Tort Statute. In this case, multinational oil companies are alleged to have aided and abetted human rights atrocities committed against environmental activists by the Nigerian military.

As Giannini and Farbstein wrote in the New York Times: "In the defendant’s view, even a corporation that decided to establish a torture center to assist a dictatorship, or began trading slaves for profit, could not be held liable."

Click here to read the rest of the New York Times discussion.

Supreme Court Allows Corporations to Escape Liability for Death Caused by Asbestos Exposure

On February 29, the Supreme Court issued its decision in Kurns v. Railroad Friction Products Corp., using preemption doctrine to allow the corporate defendants to escape liability for a railroad worker’s death likely caused by his exposure to asbestos from defendants’ products. The Court, in an opinion written by Justice Thomas, affirmed the Third Circuit’s holding that the federal Locomotive Inspection Act (“LIA”) preempts plaintiffs’ state tort law claims for design defects and failure to warn.

In this case, railroad parts manufacturers were sued by the widow and estate executor of a railroad worker who died as a result of contracting malignant mesolthelioma, the only generally accepted cause of which is asbestos exposure. Defendants admittedly manufactured products that contained asbestos and failed to provide specific product warnings required under state law. Federal railroad regulations are silent as to warnings for products containing asbestos. Nonetheless, the Supreme Court was persuaded by defendants’ claim that the LIA controls the entire field of regulation of railroad parts manufacture and use, and therefore found the state tort claims to be preempted. The Court based its decision on the 1926 case of Napier v. Atlantic Coast Line R. Co., which held that the LIA occupied the field for “the design, the construction and the material of every part of the locomotive.”

Justice Kagan wrote a concurring opinion, noting her belief that the Court would not have decided Napier the same way today, given the trends in modern preemption doctrine, but that “Napier governs so long as Congress lets it.” Justice Sotomayor, joined by Justices Breyer and Ginsburg, wrote an opinion concurring in part and dissenting in part. Justice Sotomayor agreed that the defective design claims were preempted by the LIA, but opined that the failure to warn claims, insofar as they have nothing to do with the physical composition of the railroad parts, should not be considered preempted under Napier. She concluded, “[T]he majority affords the LIA field-pre-emptive effect well beyond what Napier requires, leaving petitioners without a remedy for what they allege was fatal exposure to asbestos in repair facilities.” With a quote from the famous Silkwood plutonium exposure case, Sotomayor noted, “It is difficult to believe that Congress would, without comment, remove all means of judicial recourse for those injured by illegal conduct.”

By upholding the lower courts’ decisions in favor of the corporate defendants, the Supreme Court is preventing injured citizens from holding railroad manufacturers responsible for violating state safety laws and regulations, many of which speak to local safety hazards and provide more stringent protections than those afforded by federal laws.