The Supreme Court Gets Political in Arizona v. United States

When the Supreme Court heard oral argument in the healthcare cases last month, the overtly political tone of several justices’ questioning caused widespread consternation about whether the Court would be deciding the case based on the law or based on their own ideological preferences and policy judgments.

This week, the Supreme Court heard oral argument in the federal government’s challenge to Arizona’s draconian immigration law. Court observers were surprised by certain justices’ willingness once again to lay bare their partisan beliefs, which, of course, should be quite irrelevant to the outcome of the case.

In the Washington Post, Dana Milbank described Justice Scalia’s questioning as “verg[ing] on outright heckling,” noting that “[w]hile other justices at least attempted a veneer of fair and impartial questioning in the highly charged case, Scalia left no doubt from the start that he was a champion of the Arizona crackdown and that he would verbally lacerate anybody who felt otherwise.”

Other commentators thought Scalia was not the only justice guilty of puncturing the veneer of impartiality. Michael McGough commented in the L.A. Times that Chief Justice Roberts provided a useful sound bite to immigration opponents when he pointedly remarked, “It seems to me that the federal government just doesn’t want to know who is here illegally or not.” It is startling that Chief Justice Roberts would engage in this sort of baseless speculation, which has nothing to do with the legal question of whether or not the four challenged provisions of the Arizona law are preempted by federal immigration law.

Writing in The Atlantic, Andrew Cohen noted, “Indeed, reading through the transcript of Wednesday’s oral argument is like sifting through the debris of an ambush. The Court’s majority clearly isn’t feeling deferential toward the federal government's immigration policies. Some of the justices’ disdain for executive branch priorities practically dripped from their words.”

When justices seem to treat Supreme Court proceedings as nothing more than an extension of a political battle, it is no wonder that half of Americans think the justices will make their decisions in the healthcare case based on partisan politics rather than the Constitution or the text of the law.

This Week in Judicial Selection

Following on the confirmation of Brian Wimes to the Eastern and Western District Court of Missouri on Monday, further action to fill judicial vacancies in U.S. District Courts this week included the White House making four district court nominations, the Senate Judiciary Committee reporting out three nominees to the Senate floor, and the full Senate confirming two district court nominees.

On Thursday, the Senate voted 97-2 to confirm Gregg Costa to a seat in the Southern District of Texas, with Senators Jim DeMint (R-SC) and Mike Lee (R-UT) voting no in their continuing efforts to scold President Obama for using his recess appointment authority to make Executive Branch appointments. David Guaderrama was confirmed on a voice vote to a seat in the Western District of Texas.

It took 232 days from the time of Costa’s nomination for him to be confirmed, with 148 of those days spent on the Senate floor awaiting a final vote. Guaderrama's consensus confirmation by voice vote was also delayed for 148 days in the Senate. Both seats had been declared "judicial emergencies" by the Administrative Office of U.S. Courts.

During the debate, Senator Kay Hutchinson (R-TX) erroneously claimed “we have confirmed the same—roughly the same number of district judges as President George Bush and President Clinton did in their first terms, and to my knowledge, we’re not holding up nominations at all.”  In fact, with the confirmations of Costa and Guaderrama, 113 Obama district judges have been confirmed compared to 142 for President Bush and 151 for President Clinton at comparable dates in their terms.

Earlier on Thursday, the Senate Judiciary Committee reported out:
  • Michael Shea, nominated to the District of Utah. Shea was reported on a vote of 15-3 with Senators Lee, John Cornyn (R-TX), and Tom Coburn (R-OK) voting no.
  • Robert Shelby, nominated to the District of Connecticut on a voice vote with Sen. Lee opposing.
  • Gonzalo Curiel, nominated to the Southern District of California, on a voice vote with Sen. Lee opposing.
Senator Lee has vowed to oppose every single one of President Obama's nominees, regardless of merit or circumstance. He will even vote against nominees -- like Shelby -- who would fill vacancies in his home state and who he has claimed to support.

On Wednesday, President Obama nominated four district court judges:
  • Terrence Berg to fill an emergency vacancy in the Eastern District of Michigan
  • Jesus Bernal to fill an emergency vacancy in the Central District of California
  • Shelly Deckert Dick to fill a vacancy in the Middle District of Louisiana
  • Lorna G. Schofield to fill a vacancy in the Southern District of New York

If confirmed, Schofield will be the first person of Filipino descent to serve as an Article III judge in American history.

At the end of the week, there are 96 current and future judicial vacancies, with 22 nominees awaiting votes by the full Senate. With 1 in 9 seats on the federal bench vacant, the Senate should make a priority of voting on these nominees and filling our courtrooms so that people turning to our court system for justice can find it.

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

One Year Later: The Consequences of AT&T Mobility v. Concepcion

Douglas Bellows was illegally harassed by a debt collector, but he will never have his day in court. Lourdes Cruz was charged fees for unwanted services by AT&T, but she will never have her day in court. Mack Green was cheated out of wages and benefits by his employer, but he will never have his day in court. Nor will the numerous other individuals with legitimate claims that Bellows, Cruz, and Green each sought to represent. All thanks to the Supreme Court’s decision AT&T Mobility v. Concepcion, which was issued one year ago today.

On April 27, 2011, the Court’s decision brought one chapter in the Concepcions’ legal saga to an end, but for the millions of Americans who are bound by take-it-or-leave-it contracts with cell phone companies and credit card companies, and with their corporate employers, the profound implications of the decision remained to be seen at that point. Now, a year later, it has become clear that the Court’s decision in Concepcion has had a dramatic effect on everyday Americans’ ability to access justice through the courts.

The Court held in Concepcion that the Federal Arbitration Act (“FAA”)’s favorable treatment of contractual arbitration clauses preempts state laws aimed at protecting consumers and employees from unconscionable class action waivers. As a result, AT&T was able to avoid the legal and financial consequences of defrauding thousands of customers out of $30 for supposedly “free” phones, simply by including a provision in their service contracts that mandated arbitration and forbade class actions. The ruling left customers with no real recourse to recover their money from the company, because no one could reasonably be expected to bring an individual claim to recoup $30.

As feared, the case has had wide-ranging effects on the ability of consumers and employees to vindicate their rights in court and recoup ill-gotten gains from companies. The impact has been felt particularly in the financial services, telecommunications, auto sales, and employment contexts.

For instance, Douglas Bellows filed a class action against Midland Credit Management, a debt collector, alleging the use of harassing and abusive tactics to collect a debt in violation of the Fair Debt Collection Practices Act. After Concepcion, Bellows was forced into individual arbitration based on a clause in his take-it-or-leave-it credit card agreement.

Lourdes Cruz filed a class action against AT&T Wireless for charging $2.99 per month for “roadside assistance service,” although she had never requested or consented to such a service, under Florida’s unfair trade practices law. The Eleventh Circuit held that in light of Concepcion, Florida law was preempted by federal law and Cruz was forced into individual arbitration.

Mack Green and fellow shuttle bus drivers sued SuperShuttle for misclassifying them as franchisees rather than employees, thereby denying them benefits and overtime pay to which they were entitled, while charging them illegal “franchise fees.” After Concepcion, the Eighth Circuit forced the drivers into individual arbitration by upholding the class action waiver and mandatory arbitration clauses in their employment contracts, which the drivers alleged were unconscionable under state law.

These are just a few of the scores of suits (.pdf download) that have been dismissed by the lower courts in the twelve months since Concepcion was decided.

Of course, Concepcion was not written in a vacuum. Over the past several years, the Roberts Court has issued decision after decision forcing litigants into arbitration, in circumstances far afield from what Congress had in mind when it passed the FAA in 1925. The FAA was intended to counteract judicial hostility toward arbitration, by placing arbitration agreements “upon the same footing as other contracts.” The assumption was that the agreements would exist in negotiated contracts between parties with relatively equal bargaining power.

However, beginning in the 1980s and picking up significantly under the leadership of Chief Justice Roberts, the Supreme Court has radically expanded its interpretation of the FAA, applying it to take-it-or-leave-it (or “adhesion”) contracts in the consumer and employment contexts. Furthermore, rather than treating arbitration agreements as no less valid than other contracts, the Court has privileged arbitration agreements as super contracts not susceptible to ordinary contract defenses (such as unconscionability).

Continuing this trend, in January, the Court upheld the arbitration clause that the so-called credit repair company CompuCredit inserted into its take-it-or-leave-it contracts with consumers, thereby preventing consumers from filing a class action lawsuit in court. This decision, Compucredit v. Greenwood, was particularly outrageous because the statute at issue, the Credit Repair Organization Act (“CROA”), specifically requires companies like CompuCredit to inform their customers: “You have a right to sue a credit repair organization that violates the Credit Repair Organization Act.” Nonetheless, the Court found that this provision of the CROA only creates the right to receive the statement, not an underlying right to sue. As Justice Ginsburg wrote in dissent, in a statute designed to prevent credit repair organizations from unfair and deceptive practices, Congress certainly did not intend to allow those organizations to deceive consumers by telling them they had a right that they do not have – i.e., the right to sue.

As others have documented, when individual arbitration is the only path left open to aggrieved consumers and employees, the result is not a whole lot of arbitration – the result is a whole lot of nothing, as few individuals will choose or be able to navigate the unfamiliar terrain of the arbitration system. Meanwhile, corporations are left to operate with impunity, ripping off Americans in ways big and small.

In the end, the losers are the American system of justice and the American people.

Wimes Confirmed to the District Court

Monday, by a 92-1 vote, the Senate confirmed Judge Brian Wimes to the United States District Court for the Eastern and Western Districts of Missouri. 

Wimes, a state circuit court judge for the 16th Judicial Circuit Court of Jackson, Missouri, is a graduate of the University of Kansas and of the Thurgood Marshall School of Law at Texas Southern University.  His background includes service as Drug Court Commissioner for the 16th Judicial Circuit, Assistant Prosecuting Attorney for the Jackson County Prosecutor’s Office, and Attorney Advisor in the Litigation Branch for the Federal Bureau of Prisons.

Nominated to the bench by President Obama on September 22, 2011, Wimes had his hearing before the Senate Judiciary Committee on November 14 and was reported out of committee on December 15 on a voice vote with only Senator Lee opposing him.  Despite his overwhelming bipartisan support at all stages of the process, it took this consensus nominee 131 days to receive a vote on the Senate floor. 

Speaking before the vote, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) noted that four months into the calendar year, the Senate is still voting on nominees who came out of Committee in 2011.  Leahy asserted, “We have yet to get to any of the nominees we should be considering this year because of Republican objections to proceeding more promptly.”

With 1 in 9 vacancies on the federal bench, the Senate should be taking action to confirm nominees expeditiously rather than dragging out the process in partisan gamesmanship.

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

Equal Pay Day

- by Corbin McVeigh

April 17 marked Equal Pay Day, when women and men across America joined to demand their representatives in Congress bring an end to the practice of paying unequal and unfair wages.

The day of action began with a briefing in the U.S. Senate from organizations that constitute the Fair Pay Coalition. Some of the groups present for the briefing include the Institute for Women’s Policy Research, the American Association of University Women, the National Women’s Law Center, and the American Civil Liberties Union.

The panelists spoke about the history and effects of unfair pay that persists nationwide. In America, women who work the same hours in the same positions as men earn on average $0.77 for every $1.00 earned by men. That gap accounts for almost $11,000 per year in earnings, leaving millions of hardworking women struggling to get by.

The numbers grow far worse when looking at the disparity for women who are ethnic minorities. For example, Hispanic women earn only $0.54 for every $1.00 earned by men.

These wage gaps cannot be tolerated. With 40% of households relying on women as the primary earners and wages continuing to be unfairly allotted, a change must occur soon. With support from President Obama and the continued support from the public, these groups are working hard to bring fairness to America’s workplaces.

The movement has a strong foundation and looks to be moving in the right direction with important and well-received events such as last week’s panel. There are some great online resources on these efforts from AAUW and IWPR.

A Question of Integrity Screening at Catholic University

Tuesday, Alliance for Justice screened “A Question of Integrity: Politics, Ethics and the Supreme Court” at Catholic University of America’s Columbus School of Law in Washington, D.C.  The screening hosted by the law school’s America Constitution Society chapter was enthusiastically received by over 70 law students eager to know more about the Code Conduct for U.S. Judges and why the Court is not required to follow it, as well as the Ethics in Government Act and the current process for recusal.

AFJ’s Dorot Fellow Ashley Smith led the discussion period fielding thoughtful, challenging questions about the need for more transparency in the recusal process, if justices attending fundraising events adds to more transparency rather than hinders it,  and if politics have invaded this current court so thoroughly that it’s not just infeasible but na├»ve for litigants to demand or even expect impartiality to still be the law of the courtroom. 

CUA law professor Suzette Malveaux introduced the film and even asked a few tough questions herself about the inevitability of friendships between justices and other powerful government officials and the practicality of requiring every justice who has a relationship with an official to recuse. Ms. Smith’s response was, “Not every justice; just the ones who know that the official will appear in his or her court before they agree to go duck hunting with him!”

The discussion ended with the hope, but not a full-fledged demand, that all justices, conservative or liberal, be held to the highest ethical standards. “A lot of it I have a problem with, a lot of it I don’t. It’s not so black and white,” as one student said after the screening.

But when it comes to ethics and the highest court of the land, too much gray can be the difference between maintaining this country’s legacy of belief in an impartial and unbiased system of law, or turning our backs on it. However, as Prof. Malveaux suggested, the discussion itself helps assure us that the legacy will continue.

The Myth of the Thurmond Rule

In recent presidential election years, senators from the political party that does not hold the presidency have threatened to slow or halt the pace of non-consensus judicial confirmations. Over time, this practice has come to be known as the “Thurmond Rule,” named after Senator Strom Thurmond, who opposed President Johnson’s nomination of Abe Fortas to be Chief Justice of the Supreme Court during the summer of 1968.

The Thurmond Rule is not a formal Senate procedure or a bipartisan agreement, nor has its meaning or parameters been clearly articulated. In fact, as shown below, over the last 30 years, confirmations of district and circuit court nominees have continued well into presidential election years under both Democratic and Republican presidents.

Click to Enlarge

Alliance for Justice has prepared a brief fact sheet on the Thurmond Rule. Click here to download the PDF.

What’s at Stake in Arizona v. United States

Guest post by Professor Angela Banks

Arizona’s SB 1070 jeopardizes the existence of nationally uniform immigration laws and policies.  The Supreme Court has the opportunity to prevent the balkanization of immigration law and policy in the United States by holding that federal law preempts SB 1070.

The Supremacy Clause of the United States Constitution states that the Constitution and federal law made pursuant to the Constitution are the supreme law of the land.  If there is a conflict between federal law and state law, the federal law controls because it is supreme and the state law is invalidated.  To determine if federal law preempts state law courts determine whether or not the state law interferes with or is contrary to the federal law.

In 1889, the Supreme Court held that the power to regulate immigration is a federal power.  The Court’s decision was based on the idea that regulating immigration is related to foreign affairs.  In immigration, as in foreign affairs, it is important that the United States speak with one voice.  SB 1070 introduces an additional voice by creating enforcement priorities that differ from those created by federal immigration authorities, and by tolerating enforcement strategies disavowed by federal immigration authorities.  These enforcement priorities and strategies interfere with or conflict with federal immigration law and policy.

Enforcement Priorities

The purpose of SB 1070 is “to discourage and deter the entry, presence, and economic activity of noncitizens who are unlawfully present.”  This creates an enforcement priority that differs from federal immigration enforcement priorities.  Immigration and Customs Enforcement (“ICE”) Director John Morton has stated that ICE only has the resources to deport approximately 400,000 noncitizens a year.  ICE has prioritized unlawfully present noncitizens who have been convicted of serious crimes.  Arizona’s broader enforcement priority creates new burdens on federal immigration resources and redirects federal agency resources away from federally created enforcement priorities.

Enforcement Strategies

SB 1070 empowers sheriffs and police to check the immigration status of individuals in certain contexts when the officer has a reasonable suspicion the individual is a noncitizen and is unlawfully present.  Despite a provision stating that officers “may not consider race, color, or national origin . . . except to the extent permitted by the United States or Arizona Constitution,” race and ethnicity will likely play a role in formulating reasonable suspicion.  First, in U.S. v. Brignoni-Ponce (1975), the Supreme Court held that “Mexican appearance” can be one of several factors used to establish reasonable suspicion of unlawful presence.  Second, racial profiling has been a feature of immigration enforcement in Arizona.  The Department of Justice recently concluded that the Maricopa County Sheriff’s Office (“MCSO”) engaged in pervasive and systematic racial profiling.  Latino drivers were four to nine times more likely to be subject to a traffic stop than similarly situated non-Latino drivers.  This enforcement strategy impacts citizens, green card holders, and unlawfully present non-citizens alike.

One potential consequence of racial profiling is creating a hostile context of reception for noncitizens.  Social science research indicates that immigrants’ social, political, and economic environment plays a role in shaping their decision to naturalize.  Immigrants who find their environment welcoming are more likely to naturalize than immigrants who find their environment hostile.  The creation of a hostile environment undermines federal immigration policy to encourage eligible immigrants to naturalize and become citizens.

A tension exists between SB 1070’s enforcement priorities and strategies and those of the federal government.  This tension prevents the United States from having nationally uniform immigration laws and policies.  This situation can be rectified if the Court reasserts federal supremacy in immigration enforcement and concludes that federal law preempts SB 1070. 


Angela M. Banks is an associate professor at William & Mary School of Law.  Her research interests include immigration, international law, and human rights. 

A video explaining the legal issues before the Court in United States v Arizona is available here. Banks’ scholarship is available here.

Two Years After Spill, Troubles Remain for Gulf Coast Residents

Two years ago today, an explosion on the Deepwater Horizon oil rig killed eleven people and resulted the release of massive amounts of crude oil into the Gulf of Mexico. In the months that followed, 1.84 million gallons of chemical dispersants were also pumped into Gulf waters as part of the cleanup effort.

At the time, many people raised significant concerns about the short and long-term environmental impact of the oil and chemicals flooding the ecosystem, and of the damage that could occur both to the livelihoods of Gulf residents and to the health and well-being of clean-up workers. Others – including Alliance for Justice – raised concerns with BP’s offer of one-time settlement payouts that were based on their guess of how quickly fisheries would recover from the disaster.

Now, two years later, all those concerns appear to have been well-founded.

When fishermen resumed their trade soon after the disaster in 2010, many of the fish they were catching had open lesions and atypical coloring. After two years, multiple deformities are still being found in fish and shrimp caught in the Gulf, raising concerns not only about food safety, but about the ability of Gulf Coast residents to resume their livelihoods even years after the spill.
Discovering eyeless shrimp, lesioned fish and other mutated and underdeveloped seafood, fisherman in the Gulf are pointing fingers at the BP spill. Biologist Dr. Darryl Felder told the news agency that Gulf seafood populations are dropping at alarming rates and that species richness is "diminished.
"The Gulf Restoration Network's Scott Eust explained the bizarre shrimp deformities. "We have some evidence of deformed shrimp, which is another developmental impact. So, that shrimp's grandmother was exposed to oil while the mother was developing, but it's the grandchild of the shrimp that was exposed grows up with no eyes."

Anticipating that the impact of the disaster would continue to be felt long after the initial damage was done, AFJ worked hard to advocate for legal solutions that would let Gulf Coast residents retain their right to hold BP accountable for the damage done to their health and businesses, and to be compensated for loss of income due to the long-term environmental impact of the spill.

Our award-winning short film Crude Justice laid out the legal challenges facing residents as they decided whether or not to accept the one-time settlements offered by BP.

This week, after an audit from the Department of Justice, BP agreed to an additional $64 million in settlements with Gulf Coast residents whose earlier claims were wrongfully denied or miscalculated. That’s certainly welcome news to the thousands of families affected.

However, as we saw this week, it’s obvious that the spill will continue to have devastating effects on the lives and livelihoods of Gulf Coast residents. It’s a clear reminder how important it is to stand up for individuals’ rights when they’re trying to hold corporations accountable for their actions. After two years, let’s not forget the struggles Gulf Coast residents are still facing.

Five Judicial Nominees Reported Out of Committee

This morning the Senate Judiciary Committee reported five judicial nominees to the Senate floor:
  • William Kayatta, Jr., nominated to the First Circuit Court of Appeals
  • John Fowlkes, Jr., nominated to the Western District of Tennessee
  • Kevin McNulty, nominated to the District of New Jersey
  • Michael Shipp, nominated to the District of New Jersey
  • Stephanie Rose, nominated to the Southern District of Iowa

The nominees were reported on a voice vote; Ranking Member Chuck Grassley (R-IA) stated that Senator Jeff Sessions (R-AL), who did not attend the meeting, wished to go on record with a vote of “no” against the nomination of Kayatta. Senator Mike Lee (R-UT) voted “no” on all five nominees, continuing to carry out his threat to oppose every single one of the president’s nominees regardless of merit or circumstance in retaliation for the recess appointments of Richard Cordray to head the Consumer Financial Protection Bureau and several appointments to serve on the National Labor Relations Board.

Senator Chuck Schumer (D-NY) voted “present” on McNulty, citing a personal conflict of interest (McNulty is the senator’s brother-in-law).

All of the Democratic committee members were present for the vote; the only Republican members who attended this regularly scheduled weekly meeting were Senators Grassley and Lee.

Three additional District Court nominees were on the agenda and could have been reported out to the Senate floor, but Senator Grassley stated that the Republican members were going to take advantage of a committee rule allowing nominees to be automatically held over without cause until the next meeting. This has been a persistent delaying tactic of the Republican members, who have invoked the automatic hold-over rule for all but one of the president’s judicial nominees during this Congress in order to drag out the confirmation process as long as possible. As a result, the committee has to wait until its next meeting to consider the nominations of Michael Shea to the District of Connecticut, Gonzalo Curiel to the Southern District of California (an emergency vacancy), and Robert Shelby to the District of Utah.

Today’s action leaves 11 nominees pending in committee and increases the number of nominees awaiting Senate confirmation votes to 22.  Under the March 14 deal on confirmations reached by Senate Majority Leader Harry Reid (D-NV) and Minority Leader Senator Mitch McConnell (R-KY), six of these should receive their votes by May 7, leaving at least 16 seats vacant because of partisan delay if the knee-jerk obstruction of judicial nominees continues.

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

Supreme Court Rejects Organizational Liability for Torture

Today the Supreme Court issued its decision (.pdf download) in Mohamad v. Palestinian Authority, holding that the Torture Victim Protection Act of 1991 (“TVPA”) provides for liability only of natural persons, not organizations or corporations.

In this case, the family of a U.S. citizen, who was tortured and killed by intelligence officers of the Palestinian Authority and the Palestine Liberation Organization, sued under the 1991 Torture Victim Protection Act (“TVPA”). The TVPA provides a cause of action against “[a]n individual” for torture or extrajudicial killing committed under authority or “color of law” of any foreign state. The D.C. Circuit affirmed the district court’s dismissal of plaintiffs’ claims on the grounds that the TVPA applies only to natural persons, not to organizations.

Today the Supreme Court unanimously affirmed the D.C. Circuit. In an opinion by Justice Sotomayor, the Court considered the statutory language and legislative history of the TVPA, concluding that the everyday meaning of the word “individual” applies in this case and only includes natural persons. Petitioners had tried to convince the Court that, because Congress normally provides for organizational liability in tort statutes, its use of the word “individual” here was unusual and could only be parsed with consideration of the legislative history.

The legislative history, petitioners argued, reveals that Congress used the word “individual” to make clear that state entities could not be sued, but not to exclude corporate or organizational liability.

The Court’s opinion referenced Mohamad’s companion case, Kiobel v. Royal Dutch Petroleum. The Court initially granted cert in Kiobel on the question of corporate liability under the 1789 Alien Tort Statute, but after oral argument, ordered the parties to brief the issue of extraterritoriality -- that is, whether the ATS covers violations of international law committed overseas -- and put the case to the Court’s next term. Justice Sotomayor’s reference to Kiobel shed little light on the Court’s thinking in that case, although the Court is widely expected to restrict the reach of the ATS when it ultimately rules.

By restricting the reach of the TVPA to natural persons, who may be difficult to identify and are often judgment-proof, the Court has significantly reduced the likelihood that torture victims or victims’ families will be able to hold their torturers accountable.

Thacker Confirmed to Fourth Circuit

Yesterday the Senate confirmed Stephanie Dawn Thacker by an overwhelming bipartisan vote of 91-3 to a seat on the Fourth Circuit Court of Appeals. The only "no" votes came from Republican Senators Mike Lee, Jim DeMint, and David Vitter, who have made it their habit to vote against all of President Obama's nominees, regardless of merit or circumstance.

Thacker is the first woman from West Virginia to sit on the Fourth Circuit, the federal appellate bench that covers Maryland, Virginia, North Carolina, and South Carolina in addition to West Virginia; her confirmation will create a bench where four of the sixteen judges are women.

Thacker was nominated to the seat on September 8, 2011.  Moving expeditiously through the Senate Judiciary Committee, she had her hearing on October 4, and was unanimously approved by the committee on November 3.

At that point, proceedings bogged down due to deliberate obstruction by Republican senators who are attempting to prevent President Obama’s nominees from filling the nearly 100 vacancies on the federal bench.

Thacker waited 166 days after committee approval for her confirmation vote. As Judiciary Committee Chairman Patrick Leahy (D-VT) noted, over five and a half months passed before a nominee who received unanimous support in committee received her up-or-down vote. Of the 221 days since she was nominated, 25% of that time was spent in committee; the remaining 75% saw her nomination stalled on the Senate floor.

The vote on Thacker was obtained as part of a deal worked out after Senate Majority Leader Harry Reid (D-NV) was forced to file cloture to break a blanket filibuster on 17 district court nominees. The deal, reached on March 14, allowed for 12 of those nominees, in addition to two circuit court nominees, to receive votes by May 7. Thacker was one of the two agreed-upon appellate nominees in the deal.

She is only the second circuit court nominee to be confirmed by the Senate this year, and there are 16 remaining vacancies in the circuit courts.
Partisan games may simply be dismissed as “politics as usual.” But while Republicans play games with the nominees, millions of people are being harmed by an understaffed bench, threatening their ability to seek justice in our courts.

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

Fourth Circuit Nominee to Receive Vote on Monday

A confirmation vote on Stephanie Thacker, nominee to the Fourth Circuit Court of Appeals, is scheduled to take place on Monday, April 16 when the Senate returns from recess.

Ms. Thacker, a West Virginia native, is a partner at Guthrie & Thomas PLLC in Charleston, where she specializes in complex litigation, environmental and toxic tort litigation, and criminal defense. A graduate of Marshall University and West Virginia University College of Law, her legal background includes time in both public and private practice. She has been at Guthrie & Thomas since 2006, and has four additional years in private practice.

Thacker’s public service includes five years in the General Criminal Division of the U.S. Attorney’s Office for the Southern District of West Virginia and seven years as a United States Department of Justice Trial Attorney in the Child Exploitation and Obscenity Section (CEOS) where she became Deputy Chief of Litigation and then the Principal Deputy Chief.  She participated in United States v. Bailey, the nation’s first case to be prosecuted under the Violence Against Women Act, and led CEOS in creating and implementing the Innocence Lost Initiative, a nationwide prosecution program to effectively address child exploitation and obscenity offenses. 

For more complete background information on Ms. Thacker, see Alliance for Justice’s Judicial Selection Project’s Report on Pending Nominees.

The confirmation vote on Ms. Thacker is a part of the March 14 deal secured by Majority Leader Harry Reid (D-NV) to have the Senate vote on 14 judicial nominations by May 7. The deal was struck as a result of Senator Reid being forced to file cloture petitions on 17 nominees whose votes were being blocked by Republican intransigence. From slow-walking the committee process to forcing cloture votes on highly-qualified consensus nominees, Republicans in the Senate are employing numerous tactics to keep seats on the federal bench empty. As a result, millions of people across the country in the areas affected by the 82 current federal judicial vacancies are unable to have their day in court.

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

Inviting Delays So Corporations Can Weigh In

It seems as though bills stripping away protections for everyday Americans are all the rage on Capitol Hill these days. After pushing ahead with a measure to keep the government from enforcing health and safety regulations on businesses, House Republicans are moving forward with a more subtle – but potentially more dangerous – assault on Americans’ Constitutional rights.

The House Judiciary Committee recently reported out HR 3862, known as the Sunshine for Regulatory Decrees and Settlements Act.  Sponsored by Rep. Ben Quayle (R-AZ), HR 3862 purports to shine some sun on the “bevy” of settlement agreements and consent decrees generated whenever the government is taken to court for failing to enforce a law or regulation. The bill would block either party in the case from filing a motion for a decree or settlement until all other affected third parties have had an opportunity to intervene.

Giving third parties the opportunity to intervene in such cases is nothing new. What’s new in this bill is the reduction in the degree of discretion the court has to deny a third party's intervention.

Not only does that sound boring, it seems harmless. At first glance, Quayle’s bill is so tedious and benign that it would be hard to imagine it having anything to do with a messy, blood-and-guts assault on civil rights.  But as our mothers always tell us, the devil is in the details…and the procedures.

The expanded ability for third parties to intervene could mean additional delays in forcing an agency to step in and protect consumers from unsafe business practices. It could mean that a discrimination suit against a corporate giant might be delayed months or years as other giant corporations – as “affected third parties” – take the time to weigh in on the case.

We have seen time and again that big corporate interests benefit the most from changes to legal procedure, and this bill is certainly no exception.

At last week’s markup, Chairman Lamar Smith (R-TX) summarized the reasoning behind this bill by saying:
“Job creators need relief from the flood of new regulations… [A] heavy contributor to the burden of new regulations is the use of consent decrees and settlement agreements to force federal agencies to issue new rules.”
According to the sponsors of this bill, the need for HR 3862 all boils down to a little TLC: transparency (or the absence thereof) in the current process; lack of access by third parties; and a covert conspiracy between federal agencies and pro-regulatory businesses.

Yes, you read it right: a conspiracy.

Rep. Quayle explained that settlements or decrees:
“…often made behind closed doors, are the result of activist, pro-regulatory parties suing the federal government when an agency misses an enforceable statutory deadline…  this closed door process… can effectively make public participation meaningless.”
He went on to argue that the current legal process of obtaining decrees and agreements is a smokescreen for:
“pro-regulatory parties conspiring in secret with agencies prior to formally initiating litigation and then proposing a settlement agreement and filing suit concurrently.”  
Quayle did not mention that speedy resolution of disputes over enforcement might be beneficial to Americans who want to protect rights such as access to clean water and air, freedom from racial and gender discrimination, and protection of Medicaid and other benefits. Following the argument of Quayle and his cosponsors, that’s all part of the conspiracy.

Rep. Mel Watt summed it up best when he said HR 3862 is ”inviting delay, inviting more expenditure of funds by parties who really can just rope a dope and game the system for as long as the courts will allow them to do that, and you have given  them the licenses to do it.”

No cosponsors at the markup mentioned that this conspiracy of speedy resolution to disputes can occasionally prevent large corporations from prolonging the process of making the government accountable, and that third-party corporations often have a financial interest in altering the outcome of such disputes.

Now who’s doing the conspiring?

Supreme Court Hears Overtime Pay Case

On Monday, April 16, the Supreme Court will hear argument in the case of Christopher v. SmithKline Beecham Corp. At stake in this case is the ability of employees to get time-and-a-half pay for overtime work, as guaranteed under federal law.

This case arose from a dispute between Michael Shane Christopher and his employer, SmithKline Beecham, a drug company. As a “pharmaceutical representative,” Christopher’s work consisted mainly of visiting doctors’ offices and encouraging doctors to prescribe appropriate SmithKline drugs to patients. He sometimes worked more than 40 hours per week, but did not receive time-and-a-half pay for his overtime work. He and another plaintiff sued on behalf of themselves and a class of all other similar employees working for SmithKline for time-and-a-half pay, which is generally guaranteed to workers under the federal Fair Labor Standards Act (FLSA).

SmithKline claims that Christopher is not entitled to overtime pay because he is an “outside salesman,” and thus falls into one of several narrowly-drawn classes of employees exempted from the FLSA’s overtime pay requirement. Christopher argues that he should not be categorized as an outside salesman because he does not actually sell anything.

Through the FLSA, Congress delegated to the secretary of labor the authority to define terms such as “outside salesman.” The secretary of labor has issued regulations providing that an “outside salesman” must in some sense make sales. According to the secretary, who filed an amicus brief in this and a related case, these regulations do not exempt drug companies from paying pharmaceutical representatives like Christopher overtime.

It is a well-established principle of federal law that courts generally defer to agencies’ interpretations of statutes and of their own regulations. However, in this case, the Ninth Circuit Court of Appeals agreed with SmithKline that the secretary’s interpretation deserved no deference because the secretary merely “parroted” federal law in writing the regulations. As a result, the Ninth Circuit substituted its judgment for the judgment of the agency, and decided that Christopher was in fact an outside salesman who did not merit overtime pay.

Although this case raises the technical question of the degree of deference a reviewing court should give to agency interpretations of its own regulations, it is important to remember the core dispute at issue in this case. Christopher worked longer hours than a full-time employee is expected to work. Federal law demands that such workers receive overtime pay, unless they fall into specific, narrowly drawn categories. Congress delegated the authority to define the boundaries of these categories to the secretary of labor, who has determined that employees in Christopher’s position should receive overtime pay.

If the Supreme Court sides with the drug companies, it will not only constitute an earthquake in administrative law, it would also deny overtime to roughly 90,000 drug company employees in Christopher’s situation.

Next Week: More (Slow) Movement on Judicial Nominations

When the Senate returns from recess on April 16, one of its first scheduled votes will be on the nomination of Stephanie Thacker to the Fourth Circuit Court of Appeals. The vote on Thacker is part of the March 14 agreement reached by Senators Harry Reid and Mitch McConnell to allow the Senate vote on the confirmations of 14 judicial nominees by May 7.

Thacker will mark the eighth vote of this agreement, and will be only the second circuit court nominee to receive a vote in the Senate this year.

On April 19, the Senate Judiciary Committee is scheduled to consider five judicial nominees at its Executive Business Meeting. All five were held over at the committee’s last meeting on March 29 by request of the Republican members, a delaying tactic that has been used to slow walk all but one of President Obama’s judicial nominees in this Congress. Perpetually slowing down the confirmation process in committee is one of several ways in which Senate Republicans are working to prevent President Obama from filling judicial vacancies in the midst of a crisis that has left 1 in 9 seats on the bench empty.

The committee will hold hearings on nominations to the Privacy and Civil Liberties Oversight Board next week, and therefore will not be holding hearings on additional pending judicial nominees.

Nan Aron on MSNBC's Up with Chris Hayes

AFJ President Nan Aron appeared this morning on MSNBC's "Up with Chris Hayes" to discuss judicial nominations and the politicization of the Supreme Court. Watch below:

25 Years After Bork

On Wednesday, AFJ President Nan Aron joined a panel hosted by American University Washington College of Law on the topic “The Judicial Confirmation Process 25 Years After Bork."  She, along with former U.S. Senator Arlen Specter; Charles Cooper, a former director in President Reagan’s Office of Legal Counsel; Michael Gerhardt, Professor of Constitutional Law at University of North Carolina School of Law; and David Savage of the Los Angeles Times shared perspectives on the impact of the Robert Bork Supreme Court confirmation hearings in 1987.

Responding to charges from Cooper that the Bork confirmation hearings were the moment when civil discourse was lost and “ugliness took a quantum leap downward,” resulting in “vulgarity” and “coarseness,” Aron incisively pointed out that Bork was appointed by Reagan as delivery on the president’s promise to give the right wing of his party an ultra-conservative judiciary. Opposing Bork, according to Aron, was an attempt to prevent partisan politics from capturing the Court and rolling back precedents on civil rights and women’s rights established by the Warren Court.

It was not the hearing process that prevented Bork from being confirmed, stated Aron, but Bork’s record of active opposition to priorities of the vast majority of ordinary people—a record that was well established and public long before Bork was appointed. Savage agreed that Bork was a non-starter for confirmation before his hearings even began, since his well-known opposition to the 1964 Civil Rights Act and to the Roe v. Wade decision automatically meant he was going to receive “no” votes from a majority of senators.

Senator Specter, whose stringent questioning of Bork during the confirmation process was one of the notable aspects of the hearings twenty-five years ago, expressed frustration that nominees refuse to candidly answer questions during their hearings before the Senate Judiciary Committee. Acknowledging that a nominee’s record is publicly known before hearings begin, Specter stated that the hearings should allow senators the opportunity to learn how a nominee is “going to approach the job of being a justice” and how they relate the law to the lives of the people it affects.

Specter also had strong words about the failure of the Court to abide by ethics and recusal standards that bind all other federal judges, characterizing the current Court’s attitude as one that borders on “the public be damned” and of being “an imperial court.” Noting that “public confidence in the Court is the bedrock of democracy—it can’t survive without it,” Specter strongly called for the Court to take measures that will increase transparency and accountability to the people.

Supreme Court Okays Strip Search of Arrestees without Reasonable Suspicion

On Monday, the Supreme Court issued a 5-4 decision (.pdf download) in Florence v. Board of Chosen Freeholders of County of Burlington, holding that corrections officials can strip search an individual who has been arrested before admitting him or her to a jail’s general population, regardless of how minor the charge and whether or not the officials reasonably believe that the arrestee is concealing contraband.

While riding in his car with his wife and young son, Albert Florence was stopped by a state trooper in Burlington County, New Jersey.  The trooper erroneously arrested Florence on a bench warrant issued for late payments of a fine, which Florence had paid before his arrest.  He even carried official proof of payment in his glove compartment, but this did not protect him. At both the Burlington County Detention Facility and the Essex County Correction Facility, Florence was forced to undergo a thorough strip search with other detainees, even though New Jersey law requires reasonable suspicion of possession of contraband for a strip search when an individual is arrested for a minor offense.

Florence and others brought a class action suit against jail and county officials in the U.S. District Court for the District of New Jersey.  The District Court granted summary judgment for Florence on the grounds that his Fourth Amendment right against unreasonable searches and seizures had been violated.  The Court of Appeals for the Third Circuit reversed the District Court’s ruling, holding that the jails’ security interest in preventing smuggling of contraband outweighed the privacy interests of detainees.

The Supreme Court, in an opinion by Justice Kennedy, held that the strip search procedures in question – which involved Florence being ordered to “lift his genitals, turn around, and cough in a squatting position” – “struck a reasonable balance between inmate privacy and the needs of the institution.”  The majority emphasized that corrections officials are given enormous latitude to determine legitimate security interests, if there is no evidence that they have “exaggerated their response.”

Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, wrote in dissent that no convincing reason had been presented why “in the absence of reasonable suspicion, involuntary strip searches of those arrested for minor offenses are necessary in order to further [] penal interests.”

Breyer argued convincingly that the majority’s categorical rule allowing officials to commit gross invasions of personal privacy by conducting strip searches without any reason to suspect the concealment of contraband is simply not justified by the empirical evidence.  Notably, he cited an empirical study showing that out of 23,000 individuals strip searched before being admitted to a particular correctional facility, a mere five were discovered to have concealed contraband in their underwear or anal cavities, and in four of those instances, there would have been reasonable suspicion to conduct a search. Thus, there was “only one instance in 23,000 in which the strip search policy ‘arguably’ detected additional contraband.”  Such results do not suggest that important penal interests are being served by such policies.

Indicating some discomfort with the breadth of the majority’s rule, Chief Justice Roberts and Justice Alito each wrote separate concurrences to emphasize its limitations. Roberts simply noted that there may be exceptions to the rule in the future, while Alito emphasized that the ruling is limited to visual inspections of arrestees who will be admitted to the jail’s general population.

Notwithstanding these “limitations,” the Supreme Court has issued a ruling of dramatic impact, under which any individual arrested for any reason – including driving with a noisy muffler or riding a bicycle without an audible bell -- and no matter how innocent he or she may be of the charges, may be ordered to strip naked and to expose his or her genitals for inspection by corrections officers.