Stare Indecisis: Obama’s Inaction On Judicial Nominations

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Michael Fletcher has an article in Friday’s Washington Post entitled “Obama Criticized as Too Cautious, Slow on Judicial Posts“.

President Obama has not made significant progress in his plan to infuse federal courts with a new cadre of judges, and liberal activists are beginning to blame his administration for moving too tentatively on what they considered a key priority.

During his first nine months in office, Obama has won confirmation in the Democratic-controlled Senate for just three of his 23 nominations for federal judgeships, largely because Republicans have used anonymous holds and filibuster threats to slow the proceedings to a crawl.

But some Democrats attribute that GOP success partly to the administration’s reluctance to fight, arguing that Obama’s emphasis on easing partisan rancor over judgeships has backfired and only emboldened Senate Republicans.

Well, yeah, that is about right. In fairness, and Fletcher, despite the gist of his title, does point this out in the body of his article, the GOP is acting in bad faith with the obstructionistic filibustering and holds. So, it isn’t all Obama. But there sure is a problem here.

Three out of 23, with a popular President possessing a real electoral mandate and the supposed holy grail of a 60 seat caucus majority in the Senate, is a batting average that screams lame. But the real eye opener painting the full color of the context is that George W. Bush sent 95 nominees to the Senate for confirmation by this point in his first term. Whatever happened to the big push Greg Craig (he of two first names) was spearheading on this? And make no mistake, it is not as if there are not plenty of judicial seats to fill – there are currently at least 90 waiting to be filled – and it is having a deleterious impact on the ability of Federal courts across the country to function.

The delays are having a ripple effect in federal courts, where caseloads continue to back up, said Senate Judiciary Chairman Patrick J. Leahy (D-Vt.). Currently, about 90 judicial seats — about 10 percent of the total — remain vacant in appeals and district courts.

The part of Fletcher’s article that is most distressing, however, is the description of the namby pamby attitude and philosophy Obama has on his judicial nomination policy.

Eric Posner, a professor at the University of Chicago Law School, said that Republicans consider the federal courts crucial to furthering their policy aims by overturning current law, but that Obama is among Democrats who view court appointments mainly as a means of defending the legal status quo.

Obama has said he wants to appoint empathetic judges, but “beyond that, he hasn’t said much. So it is hard to know exactly what he has in mind,” Posner said.

Empathy. Hate to agree with the Republican talking points; but they are right, empathy is a bogus and impertinent concept to frame a Presidential judicial nomination policy around. Posner is absolutely right though, non-controversial empathetic centrists is about the sum total of the game plan for the Obama Administration. And he is not even making headway on that weak agenda.

Obama’s first nominee was David Hamilton, a centrist milquetoast from Indiana. Hamilton has a (despite the nitpicking claims of the GOP) bland and clean record, is Lee Hamilton’s nephew and has the ardent backing of home state GOP Senator Richard Lugar. Yet Hamilton languishes without a vote. Just like the other forgotten nominee from Indiana, Dawn Johnsen. And that is the way it is going to be with the current Republican minority; and it isn’t going to get any better after healthcare has been passed against their will.

Time is wasting, there is no reason not to put up big blocks of nominees. Get on with it, make the Republicans vote in good faith or expose them as unprincipled obstructionists. Fight for your nominees and use the 60 seat majority. You can bet your family farm that is exactly what the Republicans would do; it is what they do when in the Presidency.

More NDCA Goodness: Judge Walker Denies Prop 8 Proponents’ Motion

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As most of you know, Proposition 8 in California is the anti gay marriage provision. Supporters of the basic right to gay marriage sued the State of California after passage of Proposition 8 as a ballot initiative in last falls elections. Today were oral arguments on a motion for summary judgment filed by a group of intervenors against gay marriage and supporting the validity of the law. The case is set in front of the one and only Chief Judge Vaughn Walker of NDCA.

Here is the report from the San Jose Mercury News:

A federal judge on Wednesday refused to dismiss a legal challenge to Proposition 8, concluding that the ongoing courtroom battle over California’s voter-approved ban on gay marriage must be resolved in a full-blown trial.

After two hours of legal sparring, Chief U.S. District Judge Vaughn Walker rejected the arguments of Prop. 8 supporters, who maintained that U.S. Supreme Court precedent and a lack of proof of constitutional violations should sidetrack a lawsuit designed to overturn the ballot measure. Instead, Walker, sensing the challenge to Prop. 8 ultimately could wind up before the Supreme Court, wants a trial to develop a full factual record, including forcing Prop. 8 supporters to justify the reasons behind a state ban on allowing gay couples to wed.

One by one, the judge shot down the legal reasons Prop. 8 lawyers presented to resolve the case now and allow the same-sex marriage ban to remain in force. In particular, the judge seemed particularly unpersuaded by Prop. 8 attorney Charles Cooper’s chief argument for a state law confining marriage to heterosexual couples — that the state has an interest in protecting “traditional” marriage because of its importance to procreation in society.

“Procreation doesn’t require marriage,” Walker noted, citing statistics showing that a large percentage of children are born out of wedlock.

A representative from Law Dork was on hand and related this analysis:

Questions about whether animus animated Proposition 8 and the relevance of that claimed animus, Walker ruled, would benefit from a more complete record to be developed at trial because both issues remain in dispute.

Finally, the Proposition 8 proponents had asked the Court to rule against the Plaintiffs based on the U.S. Supreme Court decision in Baker v. Nelson. The Baker decision is a 1972 opinion by the Court dismissing a marriage case from Minnesota “for want of a substantial federal question.” 409 U.S. 810 (1972). The Plaintiffs were represented today in court by Ted Olson.

The proponents of Proposition 8, represented today in court by Charles Cooper, argued that the brief Supreme Court dismissal in 1972 meant that no federal judge could hear a similar case because the only the Supreme Court could reverse its Baker opinion. This was considered a very weak argument by many lawyers to consider the matter, particularly in light of Romer and Lawrence, and Judge Walker agreed.

This is an extremely notable ruling as Judge Walker appears to have made it from the bench at the conclusion of oral argument; he did not even bother to take it under advisement and save it for his written opinion. That is a judge totally convinced of the decision.

This is a very good, if not great, ruling and sets the stage for trial on the matter, which is already set for January of next year. Civil libertarians have to take their victories where they find them. This is another striking one coming out of the hallowed ground of the Northern District of California. My hat is off, there is something special going on up there.

Judge White Thumps The DOJ On EFF FOIA Case

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Well, you just don’t see this every day. As MadDog noted in comments last night, Judge Jeffrey S. White has entered a new order in NDCA denying the government’s request for a stay pending appeal in the telco documents FOIA case brought by the EFF. And he did it before the government ever even really asked for a stay!

This is the case Marcy discussed in The Blob That Passed Telecom Immunity after the internets went code red over an article in Wired that the Feds supposedly admitted telcos were an appendage of the government. To recap, the EFF filed a FOIA case against the ODNI seeking government documents evidencing telecom lobbying on immunity for corporate participation in Bush’s surveillance program. On September 24, 2009, Judge White found in favor of plaintiff EFF and ordered the records disclosed on or before October 9. On September 30, the government asked White for a stay so they could contemplate an appeal; White refused their request.

The EFF describes what transpired next in their press release:

On October 8, the day before the documents were due, the DOJ and ODNI filed an emergency motion asking the Court of Appeals for a 30-day stay while the agencies continue to contemplate an appeal. Around noon on October 9, the Ninth Circuit denied their emergency motion, telling the government it had to file for a motion for a stay pending appeal in the district court first.

Later that afternoon, the government filed again in the federal district court, but once again did not seek a stay pending an actual appeal. Instead, for the third time, the government insisted it could delay the release of telecom lobbying records while it considered the pros and cons of appealing. Briefing was complete by noon today, and Judge White denied the third attempt at delay this afternoon.

Get that? The government once again did not request a stay from Judge White. And he went ahead and ruled against them as if they had. See, I told you there was a reason they tried to bypass Judge White the first go around. I guess Vaughn Walker is not the only judge in NDCA that is fed up with the disingenuous pleading and concealment of unconstitutional activity the government relentlessly spews forth.

Judge White’s five page Order has some really sweet passages:

There has been no material change in circumstances and the Court is still not persuaded that it should exercise its discretion to stay its directive that Defendants disclose the disputed documents pending a decision whether or not to appeal the Court’s original Order. At this point, because a notice of appeal has been filed, a properly noticed motion for a stay pending appeal would have been appropriately filed before this Court. See Fed. R. Civ. P. 62(c). However, such a motion is not before the Court and Defendants have repeatedly reiterated that they have not filed such a motion. Regardless, the Court will address the substantive factors in ruling on such a motion in order to obviate the need for the parties to return once again to this Court before addressing the issue of a stay pending appeal.

White is tired of being jerked around by the disingenuous antics of Obama’s DOJ and he decided to move them along to the 9th; and why not, they are going there anyway, no reason to let them delay and obfuscate on the way.

Then White sets the table for dissection of the DOJ specimen: Read more →

Obama DOJ Declines To Support Legality Of Bush Surveillance Program

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Hot on the heels of the Telephone Immunity Secrecy Blob, today the 2nd Circuit Court of Appeals heard oral argument on Wilner v. NSA and DOJ, a FOIA case wherein the Center for Constitutional Rights is seeking disclosure of evidence of clandestine surveillance of attorney-client conversations between detainees and their counsel. The CCR issued this press release today:

The Court of Appeals heard arguments today in the Center for Constitutional Rights (CCR) warrantless surveillance case, Wilner v. National Security Agency (NSA). CCR and co-counsel argued that the executive branch must disclose whether or not it has records related to wiretapping of privileged attorney-client conversations without a warrant.

Said Kathryn Sabbeth, Assistant Professor of Law at the University of North Carolina at Chapel Hill School of Law, who argued the case, “No argument could be made that targeting American lawyers on American soil to obtain information about their clients was legal, and indeed when counsel for the government was pressed for an explanation he offered none.”

The rights attorneys appealed the government’s Glomar assertions, meaning its refusal to either confirm or deny the existence of records sought in Freedom of Information Act (FOIA) litigation relating to the NSA warrantless wiretapping program and surveillance of attorneys representing detainees at Guantánamo.

“Our work with our clients may have been deeply compromised by illegal surveillance carried out by the last administration,” said Shayana Kadidal, Senior Managing Attorney of the CCR Guantánamo Global Justice Initiative. “The new administration has no legal basis for refusing to come clean about any violations of attorney-client privilege by the NSA.”

During arguments, the government’s counsel stated, “We take no position on the legality of the TSP,” referring to the Bush administration’s Terror Surveillance Program.

The case is a FOIA lawsuit on behalf of 23 attorneys, including CCR staff attorneys Gitanjali S. Gutierrez and Wells Dixon, law professors, and partners at prominent international law firms, who believe they may have been the subjects of the NSA’s warrantless wiretapping program authorized by the prior administration shortly after September 11, 2001. CCR, the Institute of Public Representation at Georgetown University Law Center and the Chicago law firm Butler Rubin Saltarelli & Boyd filed the case in the U.S. District Court for the Southern District of New York on May 17, 2007. The district court ruled the NSA could refuse to say anything either confirming or denying the existence of any related materials because to do so “would reveal information about the NSA’s capabilities and activities.”

Plaintiffs argued Read more →

Evidence The US Bought The Megrahi Conviction

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The case against convicted Lockerbie/Pan Am 103 bombing suspect Abdelbaset Ali Mohmet al-Megrahi was always thin, at best. Despite all the commotion over his trial and conviction, the entire prosecution case was founded upon the testimony of a single clothing shopkeeper from Malta, Tony Gauci, that supposedly sold the clothes that were believed to be in the suitcase containing the bomb that brought down Pan Am Flight 103. Long after the unremarkable alleged sale, Gauci somewhat incredibly remembered selling the clothes to Megrahi. Megrahi has consistently maintained his innocence.

Megrahi’s trial was held in a Scottish court that was constituted in the Netherlands by agreement in order to obtain the extradition of Megrahi for trial. Since the conviction at trial, Megrahi has appealed unsuccessfully, but the Scottish Criminal Cases Review Commission (SCCRC), which investigates possible miscarriages of justice, had taken jurisdiction of the case and referred it back to court for appeal, which is the posture the case was in when the Scottish Justice Ministry cut a deal to release him to his home country of Libya on compassionate grounds (Megrahi has terminal cancer) in return for Megrahi giving up his appeal.

With no appeal available to press his case, Megrahi has taken to releasing material and briefs that were to constitute the foundation of the appeal, and in that regard has opened a website where the material is posted. One of the filings disclosed yesterday on the website documents a blockbuster finding and allegation by the Scottish Criminal Cases Review Commission (SCCRC) on collusion of the Scottish Crown prosecution team and US authorities to effectively buy Shopkeeper Gauci’s testimony against Megrahi by paying Gauci two million dollars and Gauci’s brother, Paul Gauci, a million dollars:

The SCCRC has recovered undisclosed material which indicates that:

(a) The witness Tony Gauci had, at an early stage, expressed an interest in receiving payment or compensation for his co-operation in giving evidence, and that this interest persisted until after the trial

(b) that the witness Paul Gauci had " a clear desire to gain financial benefit" from his and his brothers co-operation and that Paul Gauci exercised considerable influence over his brother

(c) that the U.S. authorities offered to make substantial payments to the witness Tony Gauci from an early stage

(d) that an application for reward monies was made on behalf of the SIO of the investigation team of Read more →

Nino Scalia Reinvents The Wheel

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From the man conservatives and Federalist Society adherents routinely praise as an eloquent and transformational legal genius, the gold standard for their idea of a Supreme Court Justice, comes this precious nugget courtesy of Ashby Jones at the WSJ Law Blog:

In response to a question from host Susan Swain about the “quality of counsel” who appear before the court, Scalia responds with this gem:

Well, you know, two chiefs ago, Chief Justice Burger, used to complain about the low quality of counsel. I used to have just the opposite reaction. I used to be disappointed that so many of the best minds in the country were being devoted to this enterprise.

I mean there’d be a, you know, a defense or public defender from Podunk, you know, and this woman is really brilliant, you know. Why isn’t she out inventing the automobile or, you know, doing something productive for this society?

I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.

And they appear here in the Court, I mean, even the ones who will only argue here once and will never come again. I’m usually impressed with how good they are. Sometimes you get one who’s not so good. But, no, by and large I don’t have any complaint about the quality of counsel, except maybe we’re wasting some of our best minds.

Holy jeebus. Jones might want to double check to make sure he didn’t take this quote from Clarence Thomas’ interview by mistake. Seriously, how many bottles of Chianti was Nino operating on when they hit him up for this interview?

First off, horrible attorneys and rubes don’t get to argument at the Supremes Nino, their cases are weeded out of the process on the way by bad lawyering and/or bad facts before reaching you, or the lawyers realize they are out of their league and take on co-counsel more experienced and better equipped to argue to the Big Bench. So, yeah, the talent you see, even the ones "from podunk" are probably very good relatively speaking. But it is most certainly not like that Read more →

Obama’s New State Secrets Policy Is Reaffirmation Of Bush’s Policy

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Back in mid June, testifying before the Senate Judiciary Committee, Attorney General Eric Holder announced that the Obama Administration’s long promised new policy on state secrets use would be revealed "within days".

Over three months later, and on the eve of oral argument in al-Haramain v. Obama, the most dangerous case to the government’s unfettered use of state secrets, the Administration has conveniently leaked word that its long awaited new policy on state secrets will be made public, perhaps as soon as today.

From Charlie Savage at the New York Times:

The Justice Department is preparing to impose new limits on the government assertion of the state secrets privilege used to block lawsuits for national security reasons. The practice was a major flashpoint in the debate over the escalation of executive power and secrecy during the Bush administration.

The new policy, which could be announced as early as Wednesday, would require approval by Attorney General Eric H. Holder Jr. if military or espionage agencies wanted to assert the privilege to withhold classified evidence sought in court or to ask a judge to dismiss a lawsuit at its onset.

“The department is adopting these policies and procedures to strengthen public confidence that the U.S. government will invoke the privilege in court only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests,” says a draft of a memorandum from Mr. Holder laying out the policy and obtained by The New York Times.

In a nutshell, the Administration’s new policy requires that a state secrets claim must be run by the DOJ leadership before being invoked in court. What, this wasn’t being done before?

Contrast this effectively meaningless policy from the Administration with that contemplated by Senators Pat Leahy and Russ Feingold in proposed Senate legislation on state secrets policy (Jerrold Nadler has a similar proposal in the House), which would:

Provide a uniform set of procedures for federal courts considering claims of the state secrets privilege
Codify many of best practices that are already available to courts but that often go unused, such as in camera hearings, non-privilege substitutes, and special masters

Require judges to look at the evidence that the government claims is privileged, rather than relying solely on government affidavits

Forbid judges from dismissing cases at the pleadings stage, before there has been any document discovery, while protecting innocent defendants by allowing cases to be dismissed when they would need privileged evidence to establish Read more →

Dog Day Afternoon: The Militarization Of American Police

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I took great exception to President Obama’s conduct in the Henry Louis Gates false arrest case in Cambridge Massachusetts. See here and here. The reason I objected so strenuously is that there is a long growing problem in this country with the militarization of, and militancy by, police officers and the way Obama interjected himself into the matter prevented a valuable chance to publicly address the issue.

Courtesy of a chilling opinion piece slated for Sunday’s Washington Post authored by Cheye M. Calvo, mayor of Berwyn Heights Maryland, we have another poignant reminder:

I remember thinking, as I kneeled at gunpoint with my hands bound on my living room floor, that there had been a terrible, terrible mistake.

An errant Prince George’s County SWAT team had just forced its way into our home, shot dead our two black Labradors, Payton and Chase, and started ransacking our belongings as part of what would become a four-hour ordeal.

The police found nothing, of course, to connect my family and me to a box of drugs that they had been tracking and had delivered to our front door. The community — of which I am mayor — rallied to our side. A FedEx driver and accomplice were arrested in a drug trafficking scheme. Ultimately, we were cleared of any wrongdoing, but not before the incident drew international outrage.

You may remember this incident from the summer of 2008. It was, and is, a brutal reminder of the awesome power the police exercise, and the casual belligerence and impunity with which they all too often abuse it. Mayor Calvo hits the problem on the head:

Yet, I remain captured by the broader implications of the incident. Namely, that my initial take was wrong: It was no accident but rather business as usual that brought the police to — and through — our front door.

In the words of Prince George’s County Sheriff Michael Jackson, whose deputies carried out the assault, "the guys did what they were supposed to do" — acknowledging, almost as an afterthought, that terrorizing innocent citizens in Prince George’s is standard fare. The only difference this time seems to be that the victim was a clean-cut white mayor with community support, resources and a story to tell the media.

What confounds me is the unmitigated refusal of county leaders to challenge law enforcement and to demand better — as if civil rights are somehow rendered secondary by the war on drugs.

Calvo goes on to explain how not only did the police abuse Read more →

al-Haramain Reply Filed; Constitution & Rule Of Law In Judge Vaughn Walker’s Hands

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images5thumbnail1.thumbnail.jpegIn a spring and summer of noteworthy and important legal cases winding in and out of the national conscience, or at least the conscience of the enlightened readers of this blog, perhaps none have as much weight and significance as al-Haramain v. Obama, pending before Judge Vaughn Walker in the Northern District of California. Subsequent to oral argument set before the court on the morning of September 23, Judge Walker will issue a most critical opinion on Plaintiff al-Haramain’s motion for summary judgment.

We have previously discussed in depth the initial motion for summary judgment by plaintiffs and the timeline for the subsequent briefing thereto.

Today, Plaintiff al-Haramain filed their Reply, the last brief joining the issues and argument on plaintiffs’ motion for summary judgment prior to argument and decision.

At long last, the time has come for this Court to adjudicate the merits of this lawsuit and confirm, in the words of lead defendant Barack H. Obama, that “[w]arrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional.”

Indeed the time has come, and no less than the sanctity of the Fourth Amendment, Constitutional separation of powers, the continuation of unbridled unitary executive power and the rule of law sits in the hands of Judge Walker. And the plaintiffs’ counsel has teed up the ball quite nicely for him.

On whether the government’s surveillance program was lawful:

Sometimes a litigant’s brief is more significant for what it does not say than for what it says. That is the situation here. After three and one-half years of litigation in which the government has exploited multiple procedural devices to evade an adjudication on the merits, defendants say nothing on the ultimate question now posed for decision: Was the TSP unlawful?
…
Given the present procedural posture of this case, however, that silence has consequences. “[F]ailure of a party to address a claim in an opposition to a motion for summary judgment may constitute a waiver of that claim.” Foster v. City of Fresno, 392 F.Supp.2d 1140, 1146, n. 7 (C.D. Cal. 2005); accord, e,g., Seals v. City of Lancaster, 553 F.Supp.2d 427, 432 (E.D. Pa. 2008) (failure by party opposing summary judgment to address moving party’s claims “constitutes abandonment of those claims”). On this motion for partial summary judgment of liability – where plaintiffs have squarely presented and argued their claims on the merits as to why the TSP was unlawful – defendants’ Read more →

As Justice Stevens Winds Down, Will Obama Continue SCOTUS Trend To The Right?

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From Yahoo News, we hear rumblings Justice John Paul Stevens may be winding down his time on the Supreme Court Bench:

Supreme Court Justice John Paul Stevens has hired fewer law clerks than usual, generating speculation that the leader of the court’s liberals will retire next year.

If Stevens does step down, he would give President Barack Obama his second high court opening in two years. Obama chose Justice Sonia Sotomayor for the court when Justice David Souter announced his retirement in May.

Souter’s failure to hire clerks was the first signal that he was contemplating leaving the court.

Stevens is 89 years old and has been sitting with the Supremes for nearly 34 years; it has been a long and remarkable run. And the article, and the sources quoted therein are quite correct, while certainly not definitive, this augurs very much in favor of the thought that Stevens intends to step down at the end of the upcoming term. There is a pattern and flow of such things as clerk hiring in the Federal appellate bench, and this is very telling.

Sadly, whether it is at the end of this term or next, or god forbid an unplanned event in the interim, it is quite clear that Justice Stevens is nearing the end of his storied stay, and it is time to talk about what person and what ethos will take his place and maintain into the indefinite future. The Supreme bench has been moving ever to the right ideologically for a some time now, and it took another incremental step in that direction with President Obama’s appointment of Justice Sotomayor to replace the departed David Souter.

Whatever opinion one has of Justice Sotomayor, there is simply no way possible to view her elevation to the Supreme Court as doing anything substantive to stanch the rightward flow of momentum on the Supreme Court. And therein lies the concern with what President Obama will do as far as Justice Stevens’ eventual replacement. Quite frankly, Obama ran on a platform of undoing the wingnutting of the Federal Courts, but so far has done nothing to rebalance the equilibrium they once enjoyed.

As to the Supremes, neither the progressives nor the Democratic party as a whole should stand for another conservative centrist pick from President Obama. The only thing controversial about Sotomayor was that she was a Hispanic woman, her Read more →