“Professional Honor Student”

Photo: Getty Images
On Tuesday, President Obama awarded the Presidential Medal of Freedom, the highest award given to a civilian in the United States, to twelve remarkable individuals who have excelled in fields ranging from grassroots activism to government service, music, literature, medicine, and even space exploration. The honoree list included such heavyweights as Toni Morrison, Bob Dylan, Juliette Gordon Low, Dolores Huerta, and the third-longest sitting Supreme Court justice in U.S history, Justice John Paul Stevens.

Introducing Justice Stevens, Obama cited his “clear and graceful manner [in] the defense of individual rights and the rule of law, always favoring a pragmatic solution over an ideological one” as the basis for the honor, as well as his inspirational dedication “to applying our Constitution with fidelity and independence.”

The day after receiving the award, Stevens spoke at the University of Arkansas, lambasting the now infamous Citizens United decision and questioning the current justices' commitment to the ruling, largely because of the inconsistent ways they have applied it in subsequent campaign finance  cases. Observers have speculated that some partisan Republicans may intimate that the only reason Justice Steven received this honor was as payback for these and other critical remarks against the Citizens United decision.

But let’s look at a few of the real reasons why Justice Stevens received and deserved this honor:

One, aside from sitting on the bench for 35 years, third only to his predecessor, William O. Douglass, Justice Stevens has been a steadfast advocate for equal access to justice and fair application of the law.  

Although when appointed in 1975, Stevens was a self-proclaimed conservative voting against affirmative actions and in favor of stringent speech restrictions, he often espoused the importance of learning on the job. And his evolution suggests that he certainly did learn.  After 35 years, he changed his views on speech restrictions in his dissent from ACLU v. Ashcroft and on affirmative action, voting to uphold the University of Michigan’s diversity policy in Grutter v. Bollinger in 2003.  He also wrote the seminal Wallace v. Jaffree majority opinion, which struck down an Alabama law forcing students to participate silent spiritual meditation or prayer in public schools.  In that opinion, Stevens asserted, with his usual astuteness, that “the First Amendment embraces the right to select any religious faith or none at all.”

Two, he authored the most cited SCOTUS majority opinion of all time, Chevron USA v. Natural Resources Defense Council.  

His opinion protects the unambiguous will of Congress over any threat of judicial activism, stressing that the courts must defer to and enforce legislative intent when it is in conflict with administrative agency interpretation. This may seem boring and inconsequential, but this “Chevron deference” directly protects the rights of individuals to demand and receive redress when federal agencies fail to follow federal statutes that protect against discrimination and safeguard against environmental degradation, among other things.

Third, Justice Stevens understands that “one person one vote” is more than just a maxim, but rather the very foundation on which our country was built. 

A foundation that must be protected and not razed by letting politics creep into the Court’s chambers.  This understanding was evidenced in his blistering dissent in Bush v. Gore in which he insisted that the need to keep politics out the courtroom extends beyond public confidence in the results of that particular election but confidence in the court itself. He wrote, “Although we many never  know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

Finally, Justice Stevens knows when to hold ’em and knows when to fold ’em. 

In 1976, he sided with the majority in Gregg v. Georgia, which lifted the federal moratorium on the death penalty. After his retirement, Stevens admitted that this was the one vote that he regretted. It takes a big person to admit when he or she is wrong and to walk away from a past position that he or she no longer believes in. The current justices could take a lesson in courage from him, and should perhaps listen to Justice’s Steven’s words at the University of Arkansas.
Of course, this is just a short list. (Let’s not forget about the bow ties; bow ties are cool.) Justice Stevens is not only one of longest sitting justices on the bench but one of the most lauded, the most influential, and the most dedicated.

He is dedicated not only to his country and to the principles on which it was founded, but to the lives, liberty and pursuit of happiness of his fellow citizens, even those who don’t sit on the boards of Fortune 500 companies. As the president said on Tuesday, “Even in his final days on the bench, Justice Stevens insisted he was still ‘learning on the job.’ But in the end, we are the ones who have learned from him.”

Citizens United II?

Just as summer is replete with movie sequels, the Supreme Court is set to kick the season off by deciding whether or not to hear a case that could become Citizens United II.

On June 14, the U.S. Supreme Court will confer about whether American Tradition Partnership v. Bullock, a campaign finance case that the Montana Supreme Court decided last year, should move forward and be argued before the Roberts Court.

Unlike the 2002 McCain-Feingold Act restrictions at issue in Citizens United, this case is based on a 100-year-old Montana law that was passed in response to rampant political corruption in the state. The Montana Supreme Court held that the statute, which was enacted in 1912 and regulates corporate spending on state elections, is justified by and narrowly tailored to meet the state’s compelling interest “in preserving the integrity of its electoral process,” given the particular historical context in Montana.

As Rick Hasen wrote on this issue, the Supreme Court may:
  1. decline to hear the case
  2. grant cert to hear the case
  3. summarily reverse (overturn the state supreme court’s decision without briefs or oral arguments). 
The Court has been bombarded by friend-of-the-court briefs on behalf of both parties. To name but a few, in the petitioners’ corner — arguing for the Court to grant cert and ban Montana from limiting corporate political spending — are Citizens United (the advocacy group that spurred the infamous case), the U.S. Chamber of Commerce, and Senator Mitch McConnell (R-KY).

In the respondents’ corner — arguing to uphold the Montana statute — are several nonprofit organizations, state governments, law school professors, retired Montana Supreme Court judges, and Senators John McCain (R-AZ) and Sheldon Whitehouse (D-RI).

In the briefs supporting the Montana law, most amici argue in the first instance for the Court to deny review and leave the Montana Supreme Court’s decision intact. But, if the Court does not deny review, they argue for full briefing and oral arguments. A few groups, including former FEC officials and The Eleventh Amendment Movement (TEAM), are urging the Court simply to deny cert.

Hasen takes the latter position, arguing that if the Court fully reviews American Tradition Partnership, it could end up issuing an opinion on corporate election spending even more expansive than Citizens United. Thus, for those interested in maintaining the campaign finance restrictions that remain at both federal and state levels, the best course may be simply to lay low. Before the Roberts Court, no review may be better than some or full review.

Stay tuned! Citizens United II may be coming to a courthouse near you.

The Disingenuous Defense of Forced Arbitration

Andrew Pincus argued before the Supreme Court that corporations should be able to immunize themselves from class actions...and won.

In AT&T Mobility v. Concepcion, the Court ruled that corporations can impose arbitration processes on aggrieved customers and deny them the ability to bring class actions. Re-writing an 86-year-old federal statute, the five conservative justices ruled that AT&T could advertise “free” cell phones to lure consumers and then charge them a surprise $30 sales tax without being susceptible to suit, thanks to fine print in the “take-it-or-leave-it” contract that AT&T imposes on its customers.

Recently, Pincus has written in the New York Times and the National Law Journal that Concepcion is “transforming the way disputes are resolved throughout the country” – a transformation which is, he suggests, to the benefit of everyone except plaintiffs’ attorneys. Pincus is correct that a transformation is underway (just this week Microsoft announced that it, too, is inserting clauses in its user agreements to force individual arbitration in response to the Concepcion decision), however, the benefits accrue primarily to Pincus’ corporate clients.

Nearly every aspect of Americans’ everyday lives is controlled by “take-it-or-leave-it” or “adhesion” contracts. We sign them to buy products and procure services. As Amalia Kessler, a Stanford Law professor put it recently, in order to avoid such contracts “[y]ou would have to live in a cave somewhere.” And now in the wake of Concepcion, those contracts also serve to surrender our civil rights and protections as consumers.

The ruling in Concepcion has had widespread detrimental effects in the year since it was issued. Countless consumers have been cheated out of their money and their rights as lower court judges, at times reluctantly, enforce contractual terms that lead to dismissal of their cases from court, leaving unfair arbitration procedures as their only avenue for possible redress.

Pincus lauds this development, noting that, with the Corporate Court’s assurances in Concepcion, companies are increasingly using arbitration in their “customer agreements, supplier agreements and employment agreements [and] [s]ome are even considering inclusion of arbitration agreements in their securities offerings.”

It should come as no surprise that corporations prefer individual arbitration over class action litigation in disputes with consumers, employees, or securities purchasers – in other words, when they control the game. However, a recent survey of Fortune 1000 companies suggests that when it comes to their disputes with other companies, they are dramatically less likely to use arbitration than they were in the past. The survey reveals that only 60% of companies in 2011 reported using arbitration in commercial contract disputes, a considerable drop from the 85% that reported doing so in 1997. Is it possible that corporations have grown wary of arbitration when they aren’t calling all the shots?

After all, certain arbitration firms have been found to rule for the corporation that hired them a whopping 93.8% of the time.

In addition to this “repeat player bias,” the problems with arbitration, particularly in the consumer and non-unionized employment context, are myriad:
  • Arbitration proceedings are secretive, to the detriment of both the plaintiffs and the public. 
  • Arbitration can be prohibitively expensive, since filing costs often exceed those of state or federal courts. Those costs can increase depending on the value of the claims. 
  • The discovery process in arbitration is deficient, as corporations are often the ones setting their own rules for discovery. 
  • Federal law makes it nearly impossible to appeal, much less reverse, the decision of an arbitrator.
Yet Pincus persists in touting the supposed advantages of arbitration. He writes, “Most injuries suffered by consumers and employees are individualized and too small to attract a lawyer’s services. Our courts are expensive, overburdened and virtually impossible for nonlawyers to navigate. For these claims, it is arbitration or nothing.”

But Pincus has it exactly backwards. As Judge Richard Posner of the Seventh Circuit Court of Appeals recognized – and as Justice Breyer repeated in his Concepcion dissent -- “The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.” The idea that, when class actions are unavailable, 17 million individual claims will be pursued through arbitration is equally unlikely (a reality that corporations count on), and Pincus’ claim that social media will allow plaintiffs’ lawyers to “agglomerate enough individual claims to support the costs of litigating these claims” through arbitration – yet somehow not through litigation – is preposterous.

Equally disingenuous are Pincus’ claims that “the high rate of settlement, without regard to the underlying merits, undermines [the] deterrence justifications” of litigation and that corporations consider class action lawsuits as simply the “cost of doing business.” This claim raises a question Pincus does not address: If corporations are not worried about class actions, why are they fighting so hard to block them?

Furthermore, a jury award is not the only thing that can affect a corporation’s bottom line. Settlements can be plenty costly, as can the bad publicity that the public filing of the suit and succeeding steps in litigation can bring (thus corporations’ preference for low-profile resolution of claims through arbitration).

Finally, let us not forget that our courts are not inherently slow or inefficient; many of them are simply dramatically understaffed. Nearly half of all Americans live in a district or circuit with judicial vacancies for which there are pending nominees. The answer to this crisis is not to divert Americans to a flawed system of dispute resolution, but to demand that those vacancies be filled promptly and with the best legal minds our country has to offer.

One Year Later: The Consequences of Chamber of Commerce v. Whiting

In the two years since Arizona Governor Jan Brewer signed into law SB 1070, the state’s far-reaching and controversial immigration bill, numerous states have produced copycat versions of the legislation. While many of these bills have stalled or failed, others have become law and later been challenged in court by the Department of Justice, immigrant rights groups, and representatives of the affected communities. The DOJ’s challenge to SB 1070, in Arizona v. United States, was the first of these cases to reach the Supreme Court, with oral arguments held in April and a decision expected in June.

Arizona may have been the inspiration for this spate of draconian state immigration laws, but it does not bear sole responsibility for the trend. Rather, the Supreme Court played a role in opening this ugly can of worms. In U.S. Chamber of Commerce v. Whiting, a decision issued one year ago this week, the Supreme Court’s conservative majority effectively endorsed the possibility that states could create their own immigration policies.

The story of Whiting begins in 2007, long before SB 1070 was on the horizon, when Governor Brewer signed the Legal Arizona Workers Act (LAWA) into law. LAWA, which allows Arizona to revoke the business licenses of employers that fail to verify the immigration status of each of their employees, was challenged in federal court by the Chamber of Commerce and immigrant rights groups. That unlikely team of plaintiffs argued that LAWA was preempted by federal immigration laws, and should therefore be blocked. Immigration is an area in which the federal government has long asserted close to exclusive jurisdiction, and rightly so; allowing states to create their own immigration laws or arbitrarily assume some of the roles assigned to federal officers would disrupt what traditionally has been a balanced and uniform approach to immigration.

When the Whiting case reached the Supreme Court, the conservative majority upheld LAWA, finding that it was not preempted by federal law since it pertained to licensing. The court relied on the “plain language” of the federal statutory provision on hiring undocumented immigrants, which expressly preempts state sanctions of employers except through “licensing or similar laws.”

Justice Breyer argued in his dissent that upholding the Arizona law would disrupt a careful balance between the penalties for hiring undocumented workers and the penalties for unlawful racial discrimination. In other words, Justice Breyer warned that this law would make racial discrimination a lesser evil than employing an undocumented immigrant in Arizona.

Whiting sent a powerful message to states like Arizona that wish to enforce their own harsh immigration laws. And there is no question that the laws are intended to be harsh. When debating Alabama’s parallel legislation, HR 56, legislators praised the bill by saying it “attacks every aspect of an illegal immigrant’s life” and hoping that the law would “make it difficult for them to live here so they will deport themselves.” South Carolina and Georgia have also passed their own versions of SB 1070, and numerous other states are considering similar legislation.

Yet in the year since Whiting came down, the lower courts have generally construed the decision narrowly. For example, the Fifth Circuit recently struck down a city ordinance that required all apartment renters in the city to prove their lawful immigration status in order to obtain an “occupancy license.” The court construed Whiting as applying only to business licenses and to the employment of undocumented workers.

Whiting has likewise posed little obstacle to the lower courts that have enjoined various provisions of SB 1070 and copycat legislation in Alabama, South Carolina, and Georgia, finding broad action on immigration by the states to be preempted by federal law or to constitute violations of the Fourth and Fourteenth Amendments.
  • In Alabama, a federal court recently struck down provisions of HR 56, holding that the state could not restrict housing options for undocumented immigrants. 
  • In South Carolina, a federal district court blocked state law provisions criminalizing the transportation of undocumented immigrants and the failure to carry registration papers, and a provision requiring local law enforcement to verify the immigration status of persons that can be reasonably suspected of being in the country illegally. 
  • In Alabama, a district court blocked a far-reaching provision that would allow for the state prosecution of immigration law violations, as well as blocking state restrictions on noncitizens looking for work and state penalties on employers that hire undocumented workers. 
  • In Georgia, a federal court blocked a state law provision requiring law enforcement officers to verify the immigration status of people they reasonably suspect to be undocumented upon stop, detention, or arrest.
Thus far, the trend among the lower courts suggests that these inhumane state laws will not withstand judicial scrutiny, but that could change when the Supreme Court issues its decision in Arizona v. United States.

Based on the tenor of oral arguments, the Court may be willing to uphold provisions of SB 1070 that many previously considered to be clearly preempted by federal law. Nevertheless, prevailing expert opinion suggests that the Supreme Court will strike down at least those provisions in SB 1070 that criminalize the failure to carry proper documentation and provide penalties for seeking employment as preempted by federal law. Any other result would be contrary to long-standing Supreme Court precedent and widespread consensus among the circuits on this issue. However, the Roberts Court has surprised legal experts before by bending over backwards to find preemption where there is none and vice versa; few would be surprised if the conservative majority did so again.

Corporate Court Gives Thumbs Up to Mortgage Scam

Today the Supreme Court issued its decision in Freeman v. Quicken Loans (.pdf download), holding unanimously that the statute in question does not prohibit mortgage lenders from charging “unearned fees” – that is, charging fees for services never rendered. As a result of the Court’s decision in Freeman, mortgage lenders can essentially “cheat” homebuyers out of hundreds or thousands of dollars without giving them anything in return. It remains to be seen how Freeman could also impact a host of other consumer protection laws.

The case arises from a group of lawsuits out of Louisiana in which borrowers, including Tammy and Larry Freeman, claim that Quicken Loans violated the Real Estate Settlement Procedures Act (RESPA) by charging them loan-discount fees (one family paid $1,100 in fees) on their mortgages without providing reduced interest rates in return. Quicken argued that the fees charged to borrowers were both legal and earned.

The question before the Court was how to interpret RESPA, which prohibits kickbacks and other abuses in the mortgage industry. The key language in the statute reads:
No person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service in connection with a transaction involving a federally related mortgage loan other than for services actually performed.
The Freemans argued that RESPA was intended to forbid unearned fees, regardless of whether a third party was involved in the improper fee arrangement. Quicken argued that the law only prohibits lenders from receiving an unearned fee when that fee is divided with a third party in the form of a kickback. The Fifth Circuit agreed with Quicken, ruling that there was no violation of RESPA if an unearned fee is charged by a single party and there is no third party taking a share.

The circuit courts were divided on this issue, with the Fourth, Fifth, Seventh and Eighth Circuits limiting the Act to third-party kickbacks and the Second, Third and Eleventh Circuits holding that the Act applies to all unearned fees. The Department of Housing and Urban Development supported the interpretation that the statute should apply to all unearned fees, while the Solicitor General filed a brief supporting the Freeman’s petition for certiorari.

Today’s decision, written by Justice Scalia, held that in order to establish a violation of §2607(b) of RESPA, a charge for settlement services has to have been divided between two or more persons. Hence, a single provider’s retention of an unearned fee does not violate §2607(b). By looking at the terms of §2607(b), the Court determined that there have to be two distinct, sequential exchanges – a single mortgage lender cannot both make and accept the charge. Because the petitioners did not demonstrate that Quicken split the challenged charges with anyone else, the Court found that the lower court properly granted summary judgment in favor of Quicken.

Freeman is one of two RESPA cases on the Corporate Court’s 2011-2012 docket. The other case is First American Financial Corp. v. Edwards, in which the Court was asked to decide whether RESPA allows individual plaintiffs to recover charges for title insurance when the selling corporation has violated a provision of the Act, regardless of whether the plaintiff was overcharged.

For additional perspective on the cases, take a look at previous guest blog posts by Prof. Amanda Leiter on First American and by Kevin Russell on Freeman.

Constituent Day for “Mayor Franks”

By Greta Foster and Jonathan Silberman

On Wednesday, May 23rd DC Vote, an educational and advocacy organization, held “DC Constituent Service Day” to protest the recent attacks on DC home rule. Last week, Rep. Trent Franks (R-AZ) presided over a hearing regarding his bill (HR 3803 “District of Columbia Pain-Capable Unborn Child Protection Act”), which would ban abortions in the District of Columbia after 20 weeks of pregnancy unless the pregnancy threatens the life of the mother. The bill, which also features a companion in the Senate, has 196 co-sponsors.

Although hearings regarding social issues are not uncommon, the lack of congressional courtesy presented to D.C Delegate Eleanor Holmes-Norton is. During the hearing, Norton was not allowed to speak after her request to testify was rejected. Normally, congressional members are given the opportunity to testify during a hearing if it pertains to their district and constituents. While the hearing featured testimonies from D.C resident Christie Zink and medical professionals, the lack of respect towards Norton sparked contempt among congressional members Jerrold Nadler (D-NY), Nancy Pelosi (D-CA), and D.C Mayor Vincent Gray (D).

Ilir Zherka brought a plunger
to "Mayor Franks'" office
Ilir Zherka, Executive Director of DC Vote, called on D.C residents to show their disdain for Rep. Franks’ comments and actions by participating in “D.C Constituent Service Day.” About 50 D.C residents, along with supporters from other organizations, rallied outside Rep. Franks' office. While the group wanted to speak with staffers concerning issues related to D.C, due to the office being closed, residents chose to make a video recording voicing their concern to “Mayor Franks” regarding a litany of issues. Complaints ranged from safety bike lanes, pest infestations, and public transportation cost to voter disenfranchisement and college tuition expenses. Surprisingly, abortion rights was not a staple issue.

The U.S Constitution grants Congress the ability to “exercise exclusive legislation” (Art. I, Sec. 8) in D.C, which Rep. Franks referred to during the hearing on May 17th; however, residents showed his office that they would much rather legislate theirs own affairs.

Rep. Franks has not yet issued a comment responding to the protestors. The Senate companion bill (S.2103), introduced by Sen. Mike Lee (R-UT), has 23 co-sponsors. Both bills are in subcommittee pending further action.

This was not the first attempt by this Congress to undermine D.C Home Rule. The 112th Congress has already attempted on three separate occasions to undermine D.C’s gun safety laws. It also eliminated D.C’s right to vote in the Committee of the Whole, twice attempted to ban needle exchange programs in the District, and prevented the D.C government from funding abortions for low-income women.

DC Vote will be uploading the video clips on Youtube for public display. Also, they will be sending letters detailing issues affecting D.C residents to Rep. Franks. To get involved, click here.

A Great and Extraordinary Occasion: Amending the Constitution after Citizens United

James Madison famously wrote that amending the Constitution should always be possible, but reserved only “for certain great and extraordinary occasions.”

Yesterday Alliance for Justice hosted a provocative and engaging panel discussion about how to mitigate the impact of the 2010 Supreme Court decision in Citizens United v. FEC.  Moderated by Nation contributor Ilyse Hogue, “To Amend or Not To Amend: The Impact of Citizens United” featured Maryland State Sen. Jamie Raskin, Boston College Law School Professor Kent Greenfield and Roosevelt Institute Senior Fellow Mark Schmitt in an absorbing examination of the benefits and drawback of a campaign for a constitutional amendment, as well as the viability of alternative solutions to the unfettered flow of money in politics.

Raskin opened the discussion invoking Lincoln, saying our government has always been one of the people, by the people, and for the people, but Citizens United has effectively changed all of that—creating a government of, by, and for corporations.  He urged progressives not to fetishize or embrace a constitutional amendment as the one and only response to the flood of corporate money entering politics after the decision. On the other hand, he also warned against fetishizing the anti-amendment position. Opponents of an amendment solution, he argued, ignore some of the positive results that can come from the movement to pass a constitutional amendment—chief among them the function of such a movement as an organizing tool.

Raskin compared this moment with the campaign for the Equal Rights Amendment, which, despite never being passed, served as a catalyst for legislation that some would say has achieved the thrust of what the ERA set out to do, just by other more immediate means.  The value of an amendment campaign to mobilize interest in campaign finance reform is nothing to trivialize, he argued; it could be the backbone of a much needed and well-organized movement to get money out of politics. “It gives people a sense of empowerment that the Constitution belongs to us,” said Raskin.

Greenfield countered that, though organizing is key, using the anti-corporate personhood amendment as a tool to do so is not only a waste of the progressive community’s time, but potentially harmful. Although focusing primarily on the anti-corporate personhood amendments, Greenfield gave a convincing argument that a push to amend must not be just impassioned but also strategic.

“The idiocy of the Supreme Court shouldn’t drive us to find refuge in solutions that wouldn’t solve the underlying problem,” said Greenfield.

Anti-corporate personhood amendments would strip important rights from not only big money corporations, but also unions, churches, non-profits, and private universities. One possible outcome he mentioned is no defense for those groups from unreasonable government search and seizures. This risk, among others, is too big a risk to take, he argued.

Schmitt piggybacked on Greenfield’s position that an amendment may not be the best solution—even as an organizing tool, the primary benefit mentioned by many proponents.  How can you build a movement, he challenged, on a push for an amendment if you can’t even decide on which amendment to push? He said the campaigns for amendments “seed” cynicism, by their very nature, because it takes so long to pass an amendment. Plus, he noted, this would be an amendment retracting or restricting rights, not expanding rights. The 17 amendments enacted in the United States in the past 200-plus years have all bestowed rights — never taken them away. Instead, urged Schmitt, why not pursue more effective and achievable avenues for reform. Some he mentioned specifically were public financing laws and changing the corporate system itself to improve transparency and accountability.

In the end, the general consensus was that whether or not to amend is not the right question for this moment.  Moderator Ilyse Hogue suggested that addressing the harmful effects of Citizens United is not an “either, or” proposition, but a “both, and,” leaving room for mobilizing activists around plenty of solutions.

The real question is how to deal with the corrosive effect of money in politics and finally let the booming voices of the 99 percent get a chance to drown out the ones of the wealthiest 1 percent with the deepest pockets.  Is this the type of great and extraordinary occasion that Madison endorsed? Only time, and actions by the country’s 99 percent, will tell.

Confirm Paul Watford to the Ninth Circuit!

UPDATE: This alert is no longer active. Paul Watford was confirmed by a vote of 61-34. All Senate Democrats voted for confirmation, as did Republican Senators Lamar Alexander, Scott Brown, Susan Collins, Lindsay Graham, Dick Lugar, John McCain, Lisa Murkowski, and Olympia Snowe.

Paul Watford was nominated last fall to an "emergency" vacancy on the Ninth Circuit Court of Appeals. An uncontroversial, mainstream candidate, he has attracted support from across the political spectrum and been given the highest possible qualification rating by the nonpartisan American Bar Association.

Some Republicans have spoken out strongly against Watford. For example, Chuck Grassley of Iowa says he opposes Watford because he served as co-counsel on a case and on an amicus brief challenging Arizona's controversial immigration law. Grassley and others had even gone so far as to begin a filibuster.

Of course, it's not the first time Republicans have seized upon flimsy excuses to mount last-ditch opposition against well-qualified nominees.

The opposition to those was almost certainly designed merely to drag out the process and make the president look bad. And now the same thing is happening to Paul Watford.

And while that partisan game plays out on the Senate floor, our federal courts remain critically understaffed.

On issues ranging from employment discrimination to health care, federal courts play an increasingly important role in the lives of hardworking Americans. But with caseloads soaring and the nominations process bogged down in partisan bickering, too many Americans are being forced to wait too long for their day in court.

Tell your senators to confirm Paul Watford to the Ninth Circuit, where new judges are badly needed.

Click here to take action!

Awaiting the Court’s Decisions in Two Mortgage Scam Cases

Among the cases on the Corporate Court docket that have yet to be decided are two that deal with interpretations of the Real Estate Procedures Act of 1974 (“RESPA”), which was enacted to prevent abuses in the mortgage industry. At stake in both cases is the protection of home buyers from unscrupulous title insurance and mortgage companies. Both cases could also have broader implications for a host of consumer protection laws and other types of regulation.

In First American Financial Corp. v. Edwards, the question is whether RESPA allows individual plaintiffs to recover charges for title insurance when the selling corporation has violated a provision of the Act, regardless of whether the plaintiff was overcharged.

First American Financial is a holding corporation that owns First American Title, which provides title insurance. It also partially owns a number of other title insurance agencies that ostensibly offer a range of title insurance policies, but pursuant to an agreement with First American Financial and unknown to customers, only offer First American Title insurance. Such business referrals are illegal under RESPA and anyone charged for a settlement that violates the law may collect three times the amount of the charges.

Denise Edwards bought a house and received a settlement statement requiring her to pay for title insurance from First American Title.  She claims that the agency from which she had purchased title insurance used to work with multiple title insurance companies but entered a kickback agreement with First American Title in 1998.  She further contends that RESPA’s damages clause allows a lawsuit by private individuals regardless of whether the individual overpaid for insurance because of the kickback.

First American claims that Ms. Edwards was not actually injured because she cannot prove that she would have paid less for title insurance from another company. In fact, Ohio, where the conflict arose, requires all title insurance companies to charge the same amount, but not all states follow this practice. If corporations like First American Financial are allowed to enter kickback agreements, home buyers in other states could be forced to pay too much for their title insurance.

If the Supreme Court sides with First American Financial it could have far-reaching effects on the enforceability of other consumer laws. If consumers are forced to show actual damages to have standing to sue companies, this will eviscerate a host of consumer protection laws that use statutory damages as a disincentive to illegal conduct.

In Freeman v. Quicken Loans Inc., the question is whether homeowners can sue mortgage lenders for charging unearned fees.

This case arises from a group of lawsuits out of Louisiana in which borrowers, including Tammy Freeman, claim that Quicken Loans violated RESPA by charging them loan-discount fees on their mortgages without providing reduced interest rates in return. Quicken says that the fees charged to borrowers were both legal and earned.

The borrowers argue that the Act was intended to forbid both kickbacks and unearned fees, regardless of whether a third party was involved in the improper fee arrangement. Quicken argues that the law only prohibits lenders from receiving an unearned fee when that fee is divided with a third party and does not address unearned fees received by the lender alone. The Circuit Courts are deeply divided on this issue, with the Fourth, Fifth, Seventh and Eighth Circuits limiting the Act to third party kickbacks and the Second, Third and Eleventh Circuits believing that the Act applies to all unearned fees.

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

Decisions in both cases could be released as early as this Thursday. For additional perspective on the cases, take a look at previous guest blog posts by Prof. Amanda Leiter on First American and by Kevin Russell on Freeman.

Update (5/23/12, 4:01pm): Corrected a reference to "real estate companies" to more precisely reference "title insurance and mortgage companies."

A Victory for Voting Rights

The Court of Appeals for the D.C. Circuit ruled today that section 5 of the Voting Rights Act remains constitutional. The case, Shelby County, Alabama v. Holder, is an important victory for advocates of fair voting practices. In siding with the attorney general, the court eloquently and powerfully bolstered the rights of Shelby County citizens to vote in elections free from racial discrimination.

Section 5 of the Voting Rights Act, originally passed in 1965 and reauthorized in 1970, 1975, 1982, and 2006, requires six states and numerous local jurisdictions to seek “preclearance” for any changes to their electoral system because of past voting discrimination on the basis of race. For example, last year the U.S. Department of Justice refused clearance of both South Carolina and Texas’s Voter ID laws under section 5. Both states are bringing suit to challenge the justice department’s actions. Texas is directly challenging the constitutionality of section 5.

Section 2 of the Voting Rights Act, which prohibits any state from adopting electoral procedures that undermine minority voting rights, is also litigated with some frequency, but it is section 5 that has become a lightning rod for conservatives and states’ rights advocates, because it mandates additional scrutiny and oversight of particular states’ electoral activities. There are numerous section 5 suits currently percolating through the lower courts, undoubtedly because the Supreme Court’s conservative majority indicated in its 2009 decision in Northwest Austin Municipal Utility District Co. v. Holder that it would be receptive to such challenges. Earlier this year, while refraining from ruling on the constitutionality of section 5, the Supreme Court issued a terse unsigned opinion directing a district court in San Antonio to give greater deference to racially gerrymandered electoral maps drawn by the Texas state legislature.

Next stop: the Supreme Court?

When Shelby County appeals the decision to the Supreme Court, as it inevitably will, the case could become the vehicle that the conservative majority uses to strike down section 5 of the Voting Rights Act as unconstitutional. If the Supreme Court ultimately reverses the D.C. Circuit’s decision in this case and rules section 5 unconstitutional, it will be through no fault of the lower court. Judge Tatel, writing for the two-judge majority, has taken a careful look at the legislative record and produced a carefully reasoned and thoughtful opinion.

The opinion begins by acknowledging the Supreme Court’s skepticism about the continued constitutionality of section 5: “The Supreme Court warned that the burdens imposed by section 5 may no longer be justified by current needs and that its geographic coverage may no longer sufficiently relate to the problem it targets.” In other words, the question before the court in this case was whether “Section 5 remains a ‘congruent and proportional remedy’ to the 21st century problem of voting discrimination in covered jurisdictions,” and whether “Congress exceed[ed] its constitutional authority when it reauthorized section 5” in 2006.
After carefully reviewing the legislative record, the D.C. Circuit’s answer to the first question is yes -- section 5 remains congruent and proportional -- and its answer to the second question is no -- Congress did not exceed its authority.

In deferring to Congress’ reasoned judgment, the court noted that "Congress drew reasonable conclusions from the extensive evidence it gathered and acted pursuant to the Fourteenth and Fifteenth Amendments, which entrust Congress with ensuring that the right to vote--surely among the most important guarantees of political liberty in the Constitution--is not abridged on account of race.” In evaluating the congruence and proportionality of section 5, the court underscored the existence of the Act’s “bailout” provisions, which were liberalized in 1982 to allow any jurisdiction with a “clean” voting rights record over the previous 10 years to be relieved of its section 5 preclearance obligations. These provisions render section 5 relatively flexible and responsive, capable of adjustment as the circumstances on the ground change, yet strong and firm to protect voters when the circumstances remain sadly the same.

In the end, the opinion stands as a testament to the importance of judicial restraint. The court states at the outset, “Although our examination of the record will be probing, we remain bound by fundamental principles of judicial restraint. Time and time again the Supreme Court has emphasized that Congress’s laws are entitled to a ‘presumption of validity.’” And in affirming the constitutionality of section 5, the court concluded, “we owe much deference to the considered judgment of the People’s elected representatives.” We can only hope that the Supreme Court exercises commensurate judicial restraint in this case, and various other cases currently before it.

Corporations Force Arbitration on Consumers, but Opt Out for Themselves

The New York Times recently published an article on the ramifications of AT&T Mobility v. Concepcion during the one year since the Supreme Court issued its decision. Drawing on a recent report recent report (.pdf download) issued by Public Citizen and the National Association of Consumer Advocates, the article noted that:
since Concepcion, judges had cited the decision at least 76 times as a reason to prevent potential class-action lawsuits from moving ahead. In some of those cases, the judges made clear that they were ruling against the plaintiffs through gritted teeth, explaining that Concepcion basically made it impossible to come to any other decision.
 The article summarized the views of Taylor Lincoln, a co-author of the Public Citizen study:
Many well-known arbitration companies have a pro-business bias, he said, because corporations pay the arbiters. But the real agenda of Concepcion’s champions, he added, is to block collective legal action — the kind that gets a company’s attention by affecting the bottom line. Justice Stephen Breyer echoed that notion in his dissent in the Concepcion case — it split the Supreme Court 5 to 4 — when he quoted from a 2004 decision written by Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit: “The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30."
That corporations force arbitration on consumers in order to block collective legal action is unmasked by a recent study that reveals that
Fortune 1,000 corporations are significantly less likely to arbitrate contract disputes today than they were in 1997.  In the 1997 study, 85% of companies reported using arbitration in commercial contract disputes at least once during the prior three years.  In 2011, however, only 60 percent of companies so reported.

The most common reasons given by survey respondents… for not using arbitration included: the difficulty of appeal, the perception that arbitrators tend to compromise, the concern that arbitrators may not follow the law, a lack of confidence in neutrals, and high costs of arbitration.
Thus, while corporations force arbitration on consumers, with the blessing of the Supreme Court’s pro-business majority, they are increasingly hesitant to use arbitration to resolve their disputes with other corporations.

Of course, the concerns about commercial arbitration are all serious concerns for consumer arbitration as well – particularly, the impartiality of arbiters that corporations repeatedly appear before, the higher costs of arbitration, minimal access to evidence, closed-door proceedings, and narrow grounds for judicial review.  AFJ explored many of these problems in our report, Arbitration Activism (.pdf download).

As awareness grows of the harm to consumers forced into arbitration, the federal government has begun to take action. The Consumer Financial Protection Bureau recently issued a Request for Information to assist it in conducting a study of pre-dispute arbitration agreements, as mandated by the Dodd-Frank Wall Street Reform and Consumer Financial Protection Act of 2010. The period for public comment ends June 23, 2012.

National Law Journal shines light on obscure part of nominations process

Alliance for Justice has documented the unprecedented obstruction of President Obama's judicial nominees in the U.S. Senate, including a blanket filibuster of seventeen uncontroversial district court nominees. News outlets have picked up on the disturbing trend as well, but most only tell part of the story.

The National Law Journal reported (registration required) this week on the obstacles facing judicial nominees even before the Senate Judiciary Committee gets involved.
The president of Alliance for Justice, Nan Aron, agrees that had Obama made more nominations, more new judges likely would have been confirmed by now. But she said many Republican senators are withholding their recommendations or approval of potential nominees.

For instance, three judge vacancies in Georgia, including a spot on the U.S. Court of Appeals for the Eleventh Circuit, are considered judicial emergencies, but have remained empty because the White House and Georgia's two GOP senators have been unable to agree on suitable choices, The Atlanta Journal-Constitution reported on May 9.

For Eleventh Circuit nominee Jill Pryor, those senators, Saxby Chambliss and Johnny Isakson, have not yet passed along their "blue slips" to the Senate Judiciary Committee, a courtesy given to home-state senators allowing them to express their opinion before a nomination hearing. The senators also blocked two nominees for the district court, and there are still no replacement nominees for the spots.

When and if senators do finally return their blue slips, nominees are faced with an immediate delay in the Senate Judiciary Committee, as Republicans have made it their habit to request automatic one-week extensions on every nominee. Even worse, Republican senators in the committee seem to do everything in their power to draw out the process.

For more on the record of obstruction in the Senate, download AFJ's latest report, State of the Judiciary: Judicial Selection During the Remainder of President Obama's First Term.

Click here to read the full National Law Journal article.

To Amend or Not to Amend: The Impact of Citizens United

Next Tuesday, Alliance for Justice will host a dynamic panel discussion about 2010’s Citizens United v. FEC Supreme Court decision and its lasting effects on politics and public policy.

The panel will present possible solutions to the corrupting influence of big money in politics, ranging from proposed constitutional amendments and work on judicial nominations to public funding for elections and litigation strategies.

If you're in the Washington, DC area, we invite you to join us for this special event. It's free and open to the public, but RSVPs are required.

Click here to reserve your seat.

"To Amend or Not to Amend: The Impact of Citizens United"
May 22, 12:30 p.m. (Lunch), 1:00 p.m. (Panel)

SEIU Building, Room 1026-28
1800 Massachusetts Ave, NW, Washington DC

Jamie Raskin, Professor of Law at American and Maryland State Senator
Kent Greenfield, Professor of Law at Boston College Law School
Mark Schmitt, Senior Fellow at the Roosevelt Institute

Ilyse Hogue, Political Strategist and The Nation Contributor

Special Welcome:
Nan Aron, President of Alliance for Justice

A Turning Point at the White House

Community leaders met with key
White House staff, including
Attorney General Eric Holder
May 7 marked an important milestone in the fight to confirm President Obama’s nominees to the federal courts. Alliance for Justice and our national partners in the ongoing judicial nominations battle played a central role in organizing a White House briefing attended by 150 community and legal leaders from 27 states around the country. This remarkably diverse group of national, state, and local activists, all of whom have been engaged in the fight to nominate and confirm judges who share our values, went to the White House to share their experiences and concerns with administration officials, including Attorney General Eric Holder and the president’s judicial selection team.

The event energized the participants, and lent renewed vigor to an effort to end the destructive pattern of procedural delays that have left nearly one in ten federal judgeships without a judge.

The deep sense of urgency conveyed by the participants is motivated by the fact that the Senate has confirmed far fewer nominees at this point in President Obama’s first term than it had for his two predecessors, and that current vacancies on the federal bench have actually risen by 43% since he took office. Participants relayed the frustration growing in communities around the nation as understaffed courts face enormous backlogs and justice is frequently delayed for individuals and businesses whose lives and livelihoods often hang in the balance.

Among the topics discussed in frank exchanges with White House staff, were the need to continue to push for diverse nominees, including those significantly underrepresented such as Native Americans and people with disabilities, and to choose men and women who are young and have backgrounds beyond standard career paths like prosecutors and large-firm litigators. In the general discussion with White House officials, and later in extremely energetic breakout sessions, many participants expressed frustration with the relentless tactics of obstruction in the Senate, including the use of filibusters and the manipulation of the “blue-slip system” to allow nominees to be considered by the Senate Judiciary Committee. Participants were eager for advice on how they can be more effective in pushing back against recalcitrant senators.

After the White House briefing, the group went to Capitol Hill for a total of 47 meetings with a bipartisan list of senators or their staffs, and reiterated their call for swift action on the president’s judicial nominees and for a yes-or-no vote before the election on all those submitted in 2012.

The message to the Senate was clear: our courts matter deeply to the future of our country, and efforts to willfully stymie the confirmation of new judges do an enormous disservice to our democratic institutions.


Click here to watch AFJ President Nan Aron discuss the meeting and the state of judicial nominations with guest host Chris Hayes on the Rachel Maddow Show.

AFJ President Nan Aron on MSNBC

Last night, AFJ President Nan Aron appeared on the Rachel Maddow show to lay out the state of the judiciary for guest host Chris Hayes. Nan also reported on a meeting convened Monday at the White House with community leaders from all across the country.

Watch the video:

Three Judges Confirmed by the Senate

The Senate has confirmed three new judges to the federal bench: Jacqueline Nguyen to the Ninth Circuit Court of Appeals, Kristine Baker to the Eastern District of Arkansas, and John Lee to the Northern District of Illinois. Nguyen received an overwhelmingly bipartisan vote of 91-3. Baker and Lee were confirmed on voice votes. 

All three judges are filling seats that have been designated as emergency vacancies, meaning there are not enough judges in the courts to hear the cases coming before them in a timely manner. Republican intransigence at every step of the nominations process has caused these nominees to be held up in the Senate for far too long.

Nguyen was stalled in the Senate for 159 days awaiting her final vote; 225 days have passed since she was first nominated. Baker, nominated 188 days ago, has been waiting 82 days for her Senate vote. Lee has also been waiting 82 days for his confirmation vote; 180 days have passed since he was nominated.

With the confirmation of these three judges, 93 current and future federal judicial vacancies remain; a third of them (34) are judicial emergencies.

The votes on Nguyen, Baker, and Lee bring to a close the deal on confirmation votes struck between Senate leadership—a deal struck after Majority Leader Harry Reid (D-NV) was forced to file cloture on 17 judges in order to make action happen on confirmations. With the deal at an end, the focus on nominating and confirming people to the bench must increase even further. Republicans could start by allowing action today on the 19 nominees still awaiting their confirmation votes. With 1 in 10 seats on the federal bench vacant, the movement to keep filling judicial seats so that ordinary people can access justice in our courts cannot be allowed to slow or halt.

AFJ Joins Community and National Leaders in Urging an End to Obstruction of Judicial Nominees

On a day marked by the formal end of the deal struck between Senate Democrats and Republicans to give final votes to 14 of President Obama’s judicial nominees who were denied a vote last year and a White House meeting of community and legal leaders from around the country, Alliance for Justice President Nan Aron issued the following statement:
Today marked an important milestone in the fight to confirm President Obama’s nominees to the federal courts. With the nation’s judicial system suffering from the cumulative effects of over three years of relentless Republican obstruction, community leaders and advocates from around the country met with White House officials to lend renewed vigor to an effort to end the destructive pattern of procedural delays that have left nearly one in ten federal judgeships without a judge.

The deep sense of urgency conveyed by the participants is motivated by the fact that the Senate has confirmed far fewer nominees at this point in President Obama’s first term than it had for his two predecessors, and that current vacancies on the federal bench have actually risen by 43% since he took office. Frustration is growing in communities around the nation as understaffed courts face enormous backlogs and justice is frequently delayed for individuals and businesses whose lives and livelihoods often hang in the balance.

It is startling to realize that we are five months into the year and the Senate has yet to confirm a single nominee submitted by the president in 2012. The unprecedented level of partisan misbehavior in the Senate must end and today’s meeting reflects the unequivocal commitment of concerned citizens, national groups, and administration officials to push hard to ensure that every judicial nominee the president puts forward in 2012 gets a yes-or-no vote before the Senate adjourns this year.

The unequivocal message from today’s White House event was clear: our courts matter deeply to the future of our country and efforts to willfully stymie the confirmation of new judges do an enormous disservice to our democratic institutions.

The Strategy Behind Judicial Obstruction

Three federal judges will receive confirmation votes today, marking the end of a March deal struck by Senate Majority Leader Harry Reid (D-NV) and Senate Minority Leader Mitch McConnell (R-KY) to hold confirmation votes on 14 judicial nominees. All 14 of the judges in the deal were named by President Obama in 2011; all 14 could have—and should have—been confirmed last year. If all three receive majority votes, they will bring the total number of the president’s confirmed circuit and district court judges to 143. This figure is considerably lower than those of his two predecessors on the same date in office, with 172 of President Bush’s and 181 of President Clinton’s nominees having been confirmed by May 7 of year four.

Looking more broadly at the total composition of the federal bench, today sees a federal judiciary with 430 judges appointed by Republican presidents and 367 judges appointed by Democratic presidents, or a 54%-46% Republican-appointed majority. 

What’s at stake for Senate Republicans in obstructing President Obama’s nominees becomes evident when considering the number of vacancies that will still be unfilled after today’s votes. If all three of today’s nominees are confirmed, there will still be 93 current and future federal judicial vacancies. If candidates to fill all 93 empty seats were to be nominated and confirmed this year, the balance among judges on the bench in December would be nearly equal, with 49% appointed by Republican presidents and 51% by Democratic presidents. 

By using any means available to delay, drag out, and obstruct every step in every stage of the nominations process, Senate Republicans are preventing the restoration of balance to the federal bench. Even worse, they are also laying the groundwork for what could be a drastic increasein the current imbalance. 

Each nominee prevented from moving through the process and receiving a vote in the Senate adds to the potential that a vacancy will carry over to next year. And if, for example, every one of those 93 remaining vacancies were to be filled with Republican appointees, the federal bench would be comprised of 523 Republican appointees and 367 Democratic appointees… a 58%-42% split. Some partisans in the Senate might see that possible outcome as a powerful incentive to continue their unprecedented and unrelenting obstructionist tactics.

While the partisan games continue in the Senate, 250 million Americans live in a community affected by a judicial vacancy.

For an in-depth look at the state of judicial nominations as of May 7, see Alliance for Justice’s newly released report The State of theJudiciary: Judicial Selection During the Remainder of President Obama’s FirstTerm. For the most comprehensive, up-to-date information on judicial nominations, visit the Judicial Selection Project website.

Update: All three of Monday's nominees were confirmed; one by an overwhelmingly bipartisan margin, and the other two on unopposed voice votes.

Coverage of AFJ's State of the Judiciary Report

This weekend, MSNBC host Chris Hayes and The Atlantic correspondent James Fallows highlighted AFJ's new report on judicial confirmations during the Obama presidency.

Fallows wrote a follow-up piece for his blog on TheAtlantic.com, focusing on some key points from the report, including some context from recent history:
For all their differences, George W. Bush and Bill Clinton were able, during their first three years in office, to place many more judges on the federal bench than left or retired. Thus, the vacancy rate went down. Obama has been able to place many fewer. Thus vacancies have gone up.
Click here to read more on TheAtlantic.com.

For more information on the judicial vacancy crisis and Republican obstruction, see AFJ's new report, The State of the Judiciary: Judicial Selection During the Remainder of President Obama’s First Term.

And this morning, 150 community leaders from all across the country are convening at the White House to discuss the judicial vacancy crisis with some of President Obama's key staffers. Stay tuned for updates from those meetings.

First Circuit says PLIVA v. Mensing Does Not Apply to Design Defect Claims

On Wednesday, the Court of Appeals for the First Circuit upheld a $21 million verdict awarded to a woman who suffered grievous injuries as a result of taking a generic pain medication prescribed by her doctor. In its appeal to the First Circuit, the generic drug manufacturer, Mutual Pharmaceutical Company, argued that the design defect claims were preempted by the Hatch-Waxman Amendments to the Federal, Drug, and Cosmestic Act (“FDCA”) under the Supreme Court’s 2011 decision PLIVA v. Mensing.

In its opinion rejecting that argument, the First Circuit noted that the Supreme Court’s reasoning in Wyeth v. Levine (2009) -- in which the Court held that failure-to-warn claims against a brand name drug manufacturer were not preempted by the FDCA -- applies equally to design defect claims. The First Circuit acknowledged that PLIVA carved an exception out of Wyeth for failure-to-warn claims against generic drug manufacturers, but the First Circuit declined to apply that exception to the plaintiff’s design defect claims. The court concluded that while a generic drug manufacturer could not choose to alter the chemical composition of the drug under the FDCA, it could simply decide not to make the drug at all due to the risks involved. Therefore, PLIVA – in which the Supreme Court found that the generic drug manufacturer could not change FDA-approved labels of its own accord and thus could not be held liable under state law for failing to change warning labels -- was not controlling.

The First Circuit concluded that the Supreme Court “adopted a general no-preemption rule in Wyeth and … it is up to the Supreme Court to decide whether PLIVA’s exception is to be enlarged to include design defect claims.” Noting the existence of a circuit split and the widespread use of generic drugs, the First Circuit suggested that the Supreme Court needs to resolve this issue.

The First Circuit’s opinion underscores that, through its opinions in Wyeth and PLIVA, the Supreme Court has created an inconsistent and unfair legal regime in which a plaintiff’s ability to recover for injuries depends in large part on whether she was given the generic or brand name version of a drug. In response to this injustice, Sen. Leahy (D-VT) recently introduced legislation that would amend the FDCA to allow generic drug manufacturers to change their labeling to warn consumers of newly discovered risks. AFJ and several of its member organizations submitted a letter in support of the legislation. This issue is of particular importance since generics account for more than 75% of drugs prescribed in the United States.

Community Leaders from Across the Country Head to the White House

Next Monday, May 7, 150 community leaders from 27 states will travel to Washington to meet with White House officials about the vacancy crisis in America’s federal courts. Nearly one out of every ten federal judgeships remains vacant, and more than 250 million Americans live in a community with a courtroom vacancy.

A deal between Senate Republicans and Democrats to allow judicial nominations to proceed in the Senate expires May 7th, and the community leaders are urging the Senate to hold final up-or-down votes on all pending nominees.

After the White House meeting, the community leaders will visit the offices of key senators to urge them to work to end the delays that have plagued the Senate confirmation process since the beginning of the Obama presidency.  The community leaders hope their conversations in Washington will help national leaders understand how harmful the confirmation delays have been to Americans who are seeking justice.

For more information on the judicial vacancy crisis and Republican obstruction, see AFJ's new report, The State of the Judiciary: Judicial Selection During the Remainder of President Obama’s First Term.

A Look Ahead: The Last Decisions of the Supreme Court's Term

Last week the Supreme Court heard the final oral argument of the term in Arizona v. United States. With little more than two months left until the term officially ends, let’s take a brief look at the cases on the Corporate Court docket in which decisions remain outstanding.

In Christopher v. SmithKline Beecham Corp., the Court will decide whether courts should defer to the Secretary of Labor’s interpretation of “outside salesman” under the Fair Labor Standards Act (“FLSA”), and whether the FLSA’s “outside sales” exemption applies to pharmaceutical sales representatives. During the oral argument on April 16, the justices seemed somewhat more inclined to side with the drug companies by holding that the sales reps fall within the “outside sales” exemption, which would mean they are not entitled to overtime pay. If the Supreme Court ultimately decides in the companies’ favor, it will not only constitute an earthquake in administrative law, it will also deny overtime to roughly 90,000 drug company employees.

In Knox v. SEIU, which was argued on January 10, the Court is considering whether unions must send a notice to workers every time they impose temporary fee increases to cover the costs of additional advocacy activities, rather than report those increases in annual notices as they already do. The Court could decide that the case is moot, as several months ago the SEIU sent all members of the class a $1 bill and a promise to pay one hundred percent of the charged fee increase. If the Court decides the case on the merits, however, and rules against the SEIU, it will erode the power of unions to fight back against new political attacks by making it harder to raise additional funds to respond.

The Court has not yet released its opinions in either of this term’s two cases arising under the Real Estate Settlement Procedures Act of 1974 (“RESPA”). Enacted to protect consumers from overpriced insurance due to abusive practices like kickbacks, RESPA outlaws payment for business referrals.

In First American Financial Corp. v. Edwards, which was argued on November 28,  the Court is considering whether RESPA allows individual plaintiffs to recover charges for title insurance when the selling corporation has violated a provision of the Act, regardless of whether the plaintiff was overcharged. If the Court sides with First American Financial, it will weaken RESPA regulations and put consumers seeking title insurance at an economic and informational disadvantage.

In Freeman v. Quicken Loans, which was argued on February 21, the Court is considering whether RESPA prohibits unearned fees, regardless of whether a third party was involved in the improper fee arrangement. In this case, petitioners were charged loan-discount fees on their mortgages but did not receive the corresponding reduced interest rates. If the Court sides with Quicken, it will allow mortgage lenders to take hundreds or thousands of dollars from homebuyers without giving them anything in return.

And last, but certainly not least, the Court is likely to release its decisions in the remaining blockbuster cases of the term – the healthcare cases, argued on March 26-28, and Arizona v. United States, argued on April 25 -- around the end of June. More details on what is at stake in these two cases can be found at earlier guest blog posts by Professor Tim Jost (on healthcare) and Professor Angela Banks (on Arizona v. United States).