Judiciary

Don't Forget About The Circuit Courts!

Adam Doster — Fri, 31 Oct 2008 08:53:22 -0700

Much has been made this election cycle about the future composition of the Supreme Court, and with good reason. If John McCain wins Tuesday, it's practically assured that he will appoint hardline conservative judges to the bench, pushing the court further rightward and likely endangering the reproductive rights of women, whose concerns he openly mocked in the final debate. But Alexander Wohl made a valid and often overlooked point at the American Prospect yesterday -- the next president will have a major opportunity to reshape the nation's legal landscape through appointments to the 13 federal appellate courts, as well.

Instructive here is research from Russell Wheeler of The Brookings Institution. According to Wheeler, it's likely that the 111th Congress will create 14 new circuit judges positions as recommended by the United States Judicial Conference. He also estimates that half the circuit judges who are now eligible or will become eligible for retirement by 2011 will exercise that right (even though they have lifetime appointments).

If that's the case, the partisan make-up of the Appeals courts will follow the SCOTUS pattern. Wheeler predicts President McCain would increase the total proportion of Republican appointees from 56 percent to 74 percent and reduce the proportion of Democratic appointees from 36 percent to 26 percent. All 13 courts of appeals would have Republican appointee majorities, as well, up from the current 10. President Obama would likely do just the opposite, reducing the proportion of Republican appointees from 56 percent to 42 percent and increasing the proportion of Democratic appointees to 58 percent. Courts with solid Democratic majorities would also jump from zero to four and those with slight Democratic appointee majorities would move from one to four.

As an example, let's take the Seventh District Court of Appeals (which roughly covers (PDF) Illinois, Indiana, and Wisconsin). Currently, the court boasts a 7-3 Republican advantage with one vacancy, which President Bush is trying to fill before he leaves office. Under a Democratic administration, Wheeler predicts the court will ultimately feature a slight Democratic advantage, thanks to the possible retirements of five judges appointed by Reagan and George H.W. Bush.

Why are these appointments so important? Wohl explains:

This is not to say that federal judges work from party talking points; most take seriously their independence, which is, after all, the reason behind their constitutionally mandated lifetime tenure. Nonetheless, the choice of a judge by a president is an inherently political undertaking, and different judicial philosophies of constitutional interpretation can lead to vastly different results in judicial decisions.

To put it plainly: Dem-appointed judges are more likely to issue progressive-friendly decisions, whether on environmental protection, employment discrimination, or reproductive rights. And because the federal appeals courts provide the final decision on more than 60,000 cases annually, Wohl describes these judicial bodies as the "court[s] of last resort." Just another reason to sweat it out next Tuesday.

Limbaugh's False Claim On WLS: Obama Said "He Doesn't Believe In The U.S. Constitution"

Josh Kalven — Mon, 27 Oct 2008 09:46:12 -0700

There's a new Obama-related controversy brewing among conservatives this morning and ABC's Jake Tapper reports that John McCain is planning to jump all over it. The source is a 2001 appearance by the then-state senator on Chicago Public Radio's Odyssey. The subject of the program was "how slavery affected the U.S. Constitution." During the discussion, Obama argued that while the Warren Court ensured numerous civil rights, it "never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society." Obama added that the Court "didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution."

Now while most conservative bloggers and commentators are latching on to the "redistribution of wealth" quote as evidence of Obama "expos[ing] himself as a Marxist," syndicated radio host Rush Limbaugh took it a step further on Chicago radio this morning, falsely claiming that Obama said "he doesn't believe in the U.S. Constitution." Listen to his comments on Mancow Muller's new WLS show:

Internal mp3

LIMBAUGH: I just think it's about the economy right now. You mentioned cap gains -- that may be a little sophisticated. But this Obama tape that's out there is not. It's not too sophisticated. It is easily understood. When you've got a guy out there saying that he doesn't believe in the U.S. Constitution, yet he's got to take an oath to defend it and protect it. I mean, did Hillary put this out? Where's this been? How come this has not come out until now? Now there's a lot of undecideds and that's where this tape and that's where the economic mantle on Obama can have some impact here in the final week.

Below is the partial Odyssey transcript being passed around by right-wing blogs:

OBAMA: If you look at the victories and failures of the civil rights movement and its litigation strategy in the court. I think where it succeeded was to invest formal rights in previously dispossessed people, so that now I would have the right to vote. I would now be able to sit at the lunch counter and order as long as I could pay for it I’d be okay. But the Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society.

To that extent, as radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as its been interpreted and Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties. Says what the states can’t do to you. Says what the federal government can’t do to you, but doesn’t say what the federal government or state government must do on your behalf. And that hasn’t shifted and one of the, I think, tragedies of the civil rights movement was, because the civil rights movement became so court focused, I think there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalition of powers through which you bring about redistributive change. In some ways we still suffer from that. […]

CALLER: The gentleman made the point that the Warren Court wasn't terribly radical with economic changes. My question: is it too late for that kind of repairative work economically? And is that the appropriate place for repairative work economically to take place?

HOST: You mean the court?

CALLER: The courts. Or would it be legislation at this point?

CALLER: Maybe I'm showing my bias here as a legislator as well as a law professor. I’m not optimistic about bringing about major redistributive change through the courts. You know, the institution just isn’t structured that way.

Limbaugh's claim that Obama said he "doesn't believe in the U.S. Constitution" seems to stem from Barack's remarks about the document being "a charter of negative liberties." But as the transcript makes clear, while Obama acknowledges this characteristic as a reality, he never suggests that it's a flaw. Rather, as campaign spokesman Bill Burton put it, "Obama's point -- and what he called a tragedy -- was that legal victories in the Civil Rights [movement] led too many people to rely on courts to change society for the better."

Meanwhile, a separate argument is taking place over what Obama meant by "redistributive change" and the University of Chicago's Cass Sunstein is taking the lead in defending the Democratic nominee on this front.

Here are links to the full transcript and audio of the September 6, 2001 edition of Odyssey.

Make Up Your Mind

Angela Caputo — Tue, 23 Sep 2008 08:03:32 -0700

Some call it grandstanding. Others point to pre-election politicking. Whatever is behind the latest push to get state officials to reconsider the moratorium on the death penalty, it's short-sighted, says Jane Bohman, director of the Illinois Coalition to Abolish the Death Penalty.

The state's House Judiciary Committee took up the topic of repealing the moratorium at a hearing in Chicago last week that seemed to come out of left field. For eight years, lawmakers have been studying flaws in our criminal justice system that, in recent years, sentenced 18 innocent people to death. Next year, a legislative panel, will release their findings through the Capital Punishment Reform Study. Until then, Blagojevich has vowed to keep the moratorium in place.

So why the public pressure to repeal it now?

Enter Rep. Dennis Reboletti, of Elmhurst. Since joining the House Judiciary Committee, the law-and-order Republican has been beating the drum to reinstate the death penalty. The hearings aren't Reboletti's only means of garnering attention on the issue. He's also the sole sponsor of HR 969, a resolution introduced this spring that calls for lifting the moratorium because, among other reasons, "[c]riminals continue to murder people throughout the State of Illinois in spite of the existence."

Bohman concedes that Reboletti -- in pushing for the hearing, which featured tough testimony from state's attorney's in Cook and DuPage counties, Dick Devine and Joe Birkett -- has drawn attention. "This hearing was basically a showcase for prosecutors," she said.

And it didn't go without notice. The Daily Herald, in an editorial yesterday, urged the governor to quickly make up his mind on whether the death penalty stays or goes:

Keeping the middle ground of a moratorium is not the answer.

Three years ago, we said in this space: "This endless hand-wringing has reached the point of near-absurdity." Three years later, this still is true. We hope that it doesn't remain true three years or even two years from now.

While the frustration over a lack of action thus far may be real, Bohman said, "It shouldn't be frustration over the moratorium but frustration over a failed [criminal justice] system."

Obama Challenges Michigan Voter Caging

Adam Doster — Wed, 17 Sep 2008 08:05:06 -0700

Barack Obama is really taking enfranchisement seriously. Aside from launching an unprecedented voter registration drive, the Democratic presidential nominee is doing his best to prevent Republican voter suppression, particularly in a key battleground state:

A class action lawsuit has been filed to challenge what Democratic presidential candidate Barack Obama's campaign says is an attempt to keep people facing foreclosure from voting. [...]

It asks for an injunction prohibiting the Macomb County GOP, the Michigan Republican Party and the Republican National Committee from challenging Michigan voters whose homes are on foreclosure lists.

For the context, check out this astonishing Michigan Messenger piece filed last week. According to reporter Eartha Jane Melzer, the chairman of the Republican Party in Macomb County, Michigan -- a key swing county north of Detroit that served as the original home of the so-called "Reagan Democrats" -- is planning to use a list of foreclosed homes to block people from voting in the upcoming election:

"We will have a list of foreclosed homes and will make sure people aren’t voting from those addresses,” party chairman James Carabelli told Michigan Messenger in a telephone interview earlier this week. He said the local party wanted to make sure that proper electoral procedures were followed.

The Michigan Republicans’ planned use of foreclosure lists is apparently an attempt to challenge ineligible voters as not being “true residents.”

This, of course, is illegal. As a former voting rights litigator for the U.S. Justice Department tells Melzer, a foreclosure notice is not a sufficient basis for a challenge, because "people often remain in their homes after foreclosure begins and sometimes are able to negotiate and refinance.” And lo and behold, more than 60 percent of all sub-prime loans in Michigan were made to African-Americans, giving the whole enterprise a nasty racial and partisan feel to it. Sound familiar?

Republican officials in Ohio have also suggested they might try this practice to "safeguard the election." Hopefully, Obama's suit will halt these Midwestern voter caging practices in their tracks.

Grand Jury Subpoenas Spakovsky

Adam Doster — Wed, 06 Aug 2008 14:30:56 -0700

In an unusual and encouraging development, a federal grand jury today subpoenaed several former senior Justice Department attorneys as part of an investigation into the work of Bradley Schlozman, who was instrumental in politicizing the agency's Civil Rights Division while serving as its head. He later investigated phantom "voting fraud" cases for partisan ends while an interim U.S. attorney in neighboring Missouri. Over at Huffington Post, Murray Waas has more:

The extraordinary step by the Justice Department of subpoenaing attorneys once from within its own ranks was taken because several of them refused to voluntarily give interviews to the Department Inspector General, which has been conducting its own probe of the politicization of the Civil Rights Division, the same sources said.

The grand jury has been investigating allegations that a former senior Bush administration appointee in the Civil Rights Division, Bradley Schlozman, gave false or misleading testimony on a variety of topics to the Senate Judiciary Committee.

Sources close to the investigation say that the grand jury is also more broadly examining whether Schlozman and other Department officials violated civil service laws by screening Civil Rights attorneys for political affiliation while hiring them.

The details are still coming in, but Waas' sources have identified Hans von Spakovsky as one of the attorneys who received a subpeona. Spakovsky served as a former counsel to the Assistant Attorney General for Civil Rights and was at one time Schlozman's top aide. Ostensibly hired to block the implementation of voting laws that infrigned on the rights of minority, the two stooges actually worked to preserve restrictive voter ID laws. Classy.

It was this record that led Barack Obama to successfully block President Bush's nomination of Spakovsky to the Federal Election Commission.

For more on the DOJ's downfall, check out this post from late-June.

McCain Hearts "Activist" Judges

Adam Doster — Fri, 01 Aug 2008 09:39:16 -0700

In a big speech on judicial appointments this past May, John McCain joined fellow conservatives in decrying "activist judges," the left-leaning boogeymen who allegedly decide cases based on their personal beliefs rather than the law. Of course, in the mind of the right-wing, politically-motivated jurisprudence is the sole province of the left. Conservatives, or "strict constructionists" as they like to be called, would never "legislate from the bench."

Not so fast, says University of Chicago law professor Cass Sunstein. In a study of over 20,000 court decisions, Sunstein found that the right boasts their fair share of activists, too. Among the Supreme Court justices most likely to strike down decisions by federal agencies, conservatives Antonin Scalia and Clarence Thomas top the list, only upholding agency decisions in 52 and 54 percent of cases, respectively. Justice John Paul Stevens, at 71 percent, has the lowest percentage of the four left-leaning justices.

So what does an "activist judge" really mean? Paul Waldman explains.

The truth is that an "activist judge" is a judge who makes a decision conservatives don't like. If they truly cared about the principle that judges shouldn't substitute their own opinions for the law, then they would be just as exorcised about "activist" decisions that served conservative goals as they are about those that serve progressive goals. But if anyone can name me a single judicial decision that served the right's ends and that conservatives protested on the grounds that it was too "activist," I'll eat my hat. And even a court's refusal to exercise power and overrule laws or precedents -- as courts at every level did in the Terri Schaivo case -- will be called "activist" if conservatives don't like the outcome

That's what makes a McCain presidency so frightening. While it's unclear which justices will hang up their robe during the next term, half of the high court's liberal wing -- Stevens (age 88) and Ruth Bader Ginsburg (age 75) -- are likely considering it. And McCain has made quite clear who he'd like to see on the bench: activists. As The New Yorker's Jeffrey Toobin wrote in May, "McCain plans to continue, and perhaps even accelerate, George W. Bush’s conservative counter-revolution at the Supreme Court."

(H/T Think Progress)

Supreme Court Ensures Constitutionality Of Illinois Tuition Law

Adam Doster — Thu, 03 Jul 2008 10:11:05 -0700

Good news out of our nation's capitol today. The U.S. Supreme Court has refused to take up a challenge to a 2004 Kansas law allowing some illegal immigrants to pay in-state tuition at public universities and colleges.

Illinois is one of nine other states that have a similar law on the books. And that's a good thing, because it's a statute that is sensible and humane. Children of immigrants, who by no fault of their own were born outside the United States and brought across the border illegally, are routinely shut out of college because of economic and social barriers. Even though many of them are bright, motivated kids who grew up speaking English in American schools, studies show less than 10 percent of undocumented high school graduates move into higher education.

Providing an opportunity to lower their education costs, even if they can't receive scholarships or financial aid, isn't a drag on our economy either, as some conservatives like to suggest. The Immigration Policy Center explains (pdf):

The ten states which, since 2001, have passed laws allowing undocumented students who graduate from in-state high schools to qualify for in-state college tuition have not experienced a large influx of new immigrant students that “displaces” native-born students or added financial burdens on their educational systems. In fact, these measures tend to increase school revenues by bringing in tuition from students who otherwise would not be in college.

With Kansas' law secure, it's now time for Congress to approve Dick Durbin's DREAM Act.

SCOTUS Gun-Control Ruling May Impact Chicago, Obama (UPDATED)

Adam Doster — Thu, 26 Jun 2008 09:15:18 -0700

In what will certainly become a controversial decision, the U.S. Supreme Court overturned Washington D.C.'s ban on handguns this morning, declaring for the first time that the Constitution protects an individual’s right to possess a gun, not just the right of the states to maintain militias:

Justice Antonin Scalia, writing for the majority in the landmark 5-to-4 decision, said the Constitution does not allow “the absolute prohibition of handguns held and used for self-defense in the home.” In so declaring, the majority found that a gun-control law in the nation’s capital went too far in making it nearly impossible to own a handgun.

But the court held that the individual right to possess a gun “for traditionally lawful purposes, such as self-defense within the home” is not unlimited. “It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” Justice Scalia wrote.

The decision is the first since 1939 to deal with the scope of the Second Amendment. In his dissent, Justice John Paul Stevens wrote that the majority “would have us believe that over 200 years ago, the framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.”

So how will this affect Chicago's gun-control laws, which were similar to DC's and have been in place since 1982? According to the Tribune, llinois gun-rights activists have said they expect to mount a quick legal challenge to the Chicago Weapons Ordinance. Mayor Daley responded this morning:

An angry Mayor Richard Daley on Thursday called the Supreme Court's overturning of the Washington D.C. gun ban "a very frightening decision" and vowed to fight vigorously any challenges to Chicago's ban.

The mayor, speaking at a Navy Pier event, said he was sure mayors nationwide, who carry the burden of keeping cities safe, will be outraged by the decision.

The city had filed an amicus brief in the case in support of DC's law:

In Chicago's brief, lawyers argued state and local rules regulating firearms are constitutional and have had popular support. Chicago's ordinances resemble those of D.C., lawyers for the city acknowledged.

"Chicago, like other big cities, has a compelling interest in reducing crime related to firearms," the brief states. "Chicago Police Department statistics show that from 2004 to November 2007 there were 43,685 firearms-related violent crimes in the city."

The decision will have ramifications on the presidential race, too. An unnamed aide for Barack Obama, who was a great advocate of the gun-control community while in Springfield, told the Tribune last year that Obama believed the DC ban to be constitutional. Now, switching into general election mode, the campaign reports "that statement was obviously an inartful attempt to explain the Senator's consistent position." ABC News explains:

When Obama has been asked on multiple occasions to weigh in on the D.C. gun case he has regularly maintained that the Second Amendment provides an individual right while at the same time saying that right is not absolute and that the Constitution does not prevent local governments from enacting what Obama calls "common sense laws."

UPDATED: WBEZ has the audio of Daley's reaction.

Restoring Faith In The Justice Department

Adam Doster — Thu, 26 Jun 2008 08:27:40 -0700

We briefly highlighted it yesterday, but this new report confirming the partisan hiring habits of Bush's Justice Department deserves more attention:

Justice Department officials over the last six years illegally used “political or ideological” factors to hire new lawyers into an elite recruitment program, tapping law school graduates with conservative credentials over those with liberal-sounding resumes, a new report found Tuesday.

The blistering report, prepared by the Justice Department’s inspector general, is the first in what will be a series of investigations growing out of last year’s scandal over the firings of nine United States attorneys. It appeared to confirm for the first time in an official examination many of the allegations from critics who charged that the Justice Department had become overly politicized during the Bush administration.

As Steve Chapman writes in the Tribune today, the GOP and the Bush administration have embraced the dangerous notion that "every aspect of governance should serve the ends of the Republican Party." Scott Horton's invaluable story from the March issue of Harper's recaps in great detail how Bush degraded the Justice Department -- an agency that ostensibly exists to protect our civil rights:

Every new president comes to Washington with a policy agenda, of course, appointing officials in the expectation that they will implement that agenda. And especially since the end of the Sixties, such red-meat political issues as abortion, civil rights, and immigration policy have risen to the top of the law-enforcement agenda. This trend has caused controversy, as it should, but the controversy is nonetheless democratic. In recent years, though, these controversies have obscured a larger phenomenon. It is increasingly clear that Republicans have come to understand the Justice Department not as “the very foundation for a free society,” or even as a spoils system for issues-oriented voters, but rather as a machine that utilizes “evasion, cover-up, stonewalling, and duplicity,” among other techniques, to achieve the far more fundamental goal of taking and maintaining power.

While Barack Obama's stances on FISA and the Supeme Court's death penalty decision yesterday leave something to be desired, we can be certain that, if elected, he'll do his best to restore faith in the Justice Department and government more generally. And like most Americans, I'm ready for a president who will use government to protect the public good -- not manipulate it to the benefit of his party and his cronies.

High Marks For Illinois' High Court

Mose Buchele — Tue, 17 Jun 2008 09:46:48 -0700

In May, the University of Chicago Law School released a report assessing every state Supreme Court in the nation. The researchers used three metrics to rate each court's job performance: productivity (how many cases they hear), national influence (how often their opinions are cited by other courts), and judicial independence (how often a judge of one party will agree with a judge of the opposite party). The researchers concede that overall performance is a hard thing to measure:

The objective measures that we use capture some aspects of judicial quality but not all of it. It would be a mistake to believe that small differences in measured outcomes reflect significant differences in quality. But where the differences are large, it is likely that the lower-ranked judges or courts are inferior, at least unless a good reason can be given to explain the difference.

Illinois' high court fared quite well by the U of C standards. Out of the 52 state Supreme Courts (Texas and Oklahoma have two each), ours was found to be the 15th most productive, the 14th most referenced by other courts, and it ranked 10th in its ability to divorce decisions from current political trends.

Some other findings? New Mexico was deemed the least productive, the Oklahoma Criminal Court the least influential, and Michigan the least independent. While Georgia has the most prolific court, California has the most influential and Rhode Island the most independent.

(H/T Michigan Messenger)