Unconstitutional Surveillance & United States v. United States District Court: Who the Winner is may be a Secret – Part 2

[Given the current surveillance state situation in America, the Keith case, formally known as United States v. United States District Court, is one of the most important cases from our recent past. But I don’t really believe you can understand or know the law of a case, without really understanding the facts. The Keith case doesn’t have simple facts, but they are fascinating and instructive. So bear with me – this is going to take awhile, and will be laid out over a series of four posts. In Part I we went into the background, predicate facts and surrounding circumstances of the Keith case. Today in Part 2 we will discuss the actual court goings on in more detail. – Mary]

District Court Judges Deal with the Mitchell Doctrine in Smith & Sinclair.

Before we can get to the actual Keith case, where the DOJ filed a mandamus against Judge Keith, we have to look at what Judge Keith did with the DOJ arguments in the Sinclair case. In his Memorandum Opinion, Judge Keith summarized the DOJ’s position:

The position of the Government in this matter, simply stated, is that the electronic monitoring of defendant Plamondon’s conversations was lawful in spite of the fact that the surveillance was initiated and conducted without a judicial warrant. In support of this position, the Government contends that the United States Attorney General, as agent of the President, has the constitutional power to authorize electronic surveillance without a court warrant in the interest of national security.

Judge Keith then went on to list several cases, one from the Fifth Circuit and two others from District Courts in Kansas and Illinois, respectively, where the government had been successful in a similar argument.

However, not every case had gone DOJ’s way and Judge Keith chose to focus on “the exceptionally well-reasoned and thorough opinion of the Honorable Judge Warren Ferguson of the Central District of California. United States v. Smith, 321 F. Supp. 424 (C.D.Cal.1971).” Judge Ferguson bucked the Mitchell Doctrine in very clear and even prescient terms. The opinion isn’t long and it’s well worth the read. Judge Ferguson deals very swiftly with the Omnibus Act argument and moves on to the Fourth Amendment issues, finding that whatever exceptions you may and may not find in a statute, they do not create an exemption from the application of the Constitution.

DOJ argued (and its an argument that those involved in illegal surveillance still mouth today, largely unchallenged) that the Fourth Amendment isn’t really about interposing independent magistrates and warrants, it’s about … being reasonable. DOJ argued that the Executive branch only had to be reasonable in its surveillance and that they can best decide, based on all the complex issues of national security, if they’ve been reasonable. Judge Ferguson, quoting from a prior Supreme Court case, exposed that this argument would mean that the Fourth Amendment evaporates.

Interestingly, the Smith case also delves pretty deeply into another of the DOJ’s argument (again, one that persists today) that the warrantless wiretaps were legal because *everyone else did it too.* It makes for very interesting reading and attaches prior Presidential directives on warrantless wiretapping.

Beyond dealing with the Mitchell Doctrine Judge Ferguson had the insight and foresight to identify the problems presented by the inability of the courts to punish illegal Executive action other than by the Exclusionary Rule and also by the fact that under the DOJ’s, there was nothing that required the President to delegate this warrantless wiretap authority to the Attorney General. Rather than a delegation to the highest law enforcement officer of the nation who was required to specifically designate each person for surveillance, Judge Ferguson worried that under the DOJ’s argument the President could, instead, delegate such warrantless wiretap power to anyone and they could target without particularity. Judge Ferguson didn’t specifically mention night supervisors at the NSA or a massive program where the Attorney General turns the NSA loose to allow massive interceptions at the options of low level NSA operatives – interceptions without individual authorizations and without even an ability for the Attorney General to track, in filings to a secret court, who has been illegally surveilled. But he knew what men do with no oversight and no checks – he knew who Haydens were and what they would do.

Read more

First Gitmo Habeas Case Makes Way To SCOTUS

In March of this year, Marcy reported about a Center for Constitutional Rights (CCR) petition to the Supreme Court on behalf of Guantanamo Lawyer Thomas Wilner and cited the CCR press release:

Last night, the Center for Constitutional Rights (CCR) asked the Supreme Court to take up its warrantless surveillance case, Wilner v. National Security Agency (NSA). CCR and co-counsel argue that the Executive Branch must disclose whether or not it has records related to the wiretapping of privileged attorney-client conversations without a warrant. Lawyers for the Guantánamo detainees fit the officially acknowledged profile of those subject to surveillance under the former administration’s program, and the Executive Branch has argued in the past that it has a right to target them.

Yesterday, the petition for cert on behalf of Tom Wilner was denied on the Court’s traditional First Monday announcements.

But the story will not end there for Tom Wilner in this nascent Supreme Court term, in a move that will prove ultimately much more significant than the somewhat weak FOIA case CCR was pursuing, Wilner has petitioned for cert on the Habeas case of his client Fawzi al-Odah. This will be a critical test to see how the Supremes are going to deal with the progeny of their decision in Boumediene v. Bush.

From Andy Worthington:

Last week, two years and three months after the US Supreme Court granted the prisoners held at Guantánamo constitutionally guaranteed habeas corpus rights in Boumediene v. Bush, Fawzi al-Odah, a Kuwaiti prisoner held for nearly nine years, became the first prisoner to appeal to the Supreme Court “to protest federal court interpretations of detainees’ right to contest their detention,” as AFP described it.

Over the last two years, the prisoners have won 38 out of the 55 cases in which the District Court judges in Washington D.C. have made a ruling, but al-Odah is one of the 17 whose appeals have been denied. As I reported when he lost his petition in August 2009:

….

Although the burden of proof is on the government in the habeas cases, the “preponderance of evidence” standard is considerably lower than in criminal cases, for example, where a case must be established beyond reasonable doubt. However, the Circuit Court dismissed al-Odah’s complaint “under binding precedent in this circuit,” and also dismissed his complaint about the use of hearsay evidence, pointing out that the use of hearsay evidence had been approved by the Supreme Court in Hamdi v. Rumsfeld, the 2004 case that approved the detention of prisoners under the Authorization for Use of Military Force, the legislation passed by Congress the week after the 9/11 attacks, which authorized (and still authorizes) the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001” (or those who harbored them).

….

In his petition to the Supreme Court, al-Odah argues that the courts have “applied a burden of proof lower than any ever approved by this Court in a case involving prolonged imprisonment, allowing the government to justify indefinite detention by a mere preponderance of the evidence, rather than by clear and convincing evidence.” He also argues that “both the District Court and the Court of Appeals have … allowed the indiscriminate admission of hearsay, denying the detainees any meaningful opportunity to test the reliability of statements made against them.”

Here is the official Petition for Certiorari in al-Odah. al-Odah will be an important bellwether to see if the Court accepts cert and, if so, what they do with the case.

Leura Canary Strikes Again: Alabama Bingo Arrests

The DOJ has just announced significant arrests in the long simmering Alabama Bingo case. This is huge news that will shake Alabama politics to the bone like nothing has since the Governor Don Siegelman persecution. From the official DOJ Press Release:

Eleven individuals, including four current Alabama state legislators, three lobbyists, two business owners and one of their employees, and an employee of the Alabama legislature have been charged for their roles in a conspiracy to offer to and to bribe legislators for their votes and influence on proposed legislation, announced Assistant Attorney General Lanny A. Breuer of the Criminal Division and Assistant Director Kevin Perkins of the FBI’s Criminal Investigative Division.

The defendants are charged in an indictment returned by a grand jury on Oct. 1, 2010, in Montgomery, Ala., which was unsealed today. Various defendants are charged with a variety of criminal offenses, including conspiracy, federal program bribery, extortion, money laundering, honest services mail and wire fraud, obstruction of justice and making a false statement. They will make initial appearances today in U.S. District Court for the Middle District of Alabama before U.S. Magistrate Judge Terry F. Moorer.

“Today, charges were unsealed against 11 legislators, businessmen, lobbyists and associates who, together, are alleged to have formed a corrupt network whose aim was to buy and sell votes in the Alabama legislature in order to directly benefit the business interests of two defendants, Milton McGregor and Ronald Gilley,” said Assistant Attorney General Lanny A. Breuer of the Criminal Division. “The people of Alabama, like all our citizens, deserve to have representatives who act in the public’s interest, not for their own personal financial gain. Vote-buying, like the kind alleged in this indictment, corrodes the public’s faith in our democratic institutions and cannot go unpunished.”

So, this is pretty interesting timing for this big prosecutorial move, no? It sure is. From today’s report from the excellent Roger Shuler at Legal Schnauzer, who practices in the area and has covered this case from the outset:

The U.S. Justice Department is spinning today’s actions as a legitimate probe focused on corruption connected to gambling legislation. But our sources have been saying for weeks that it is designed to affect the November elections. Polls show Republican Robert Bentley already leading Democrat Ron Sparks in the race for governor, and the arrests could help the GOP take over one or both houses of the Alabama Legislature, a long-stated goal of outgoing governor Bob Riley.

….

Means and Ross are Democrats, Pruett is a Republican, and Smith is an Independent. That appears to be a relatively bipartisan target list. But there is little doubt that Canary and her prosecutors went after Democrats and others who oppose Gov. Riley and his efforts to shut down gaming in Alabama.

….

So far, there is no word of an indictment on Sparks. But what does all of this say about the Obama administration? It already had a dreadful record on justice issues. And yet it backs a process where neither Gov. Riley nor any of his conservative backers who opposed gambling were apparently even investigated. We’ve seen no sign of a probe into the $13 million in Mississippi gaming money that reportedly was spent to help get Riley elected in 2002. Canary seems to have focused only on pro-gambling individuals, who tend to be Democrats or Riley critics.

….

What is this “investigation” all about? It looks like a thinly veiled effort to pay back Riley’s Mississippi gaming supporters–who reportedly laundered money through Jack Abramoff, Michael Scanlon, and Ralph Reed–by shutting down competition in Alabama.

Yes, very interesting timing indeed. It was not enough that DOJ, Canary and Morris used the specter of investigation to influence an earlier legislative vote on the bingo issue (see here and here), there is now Read more

Unconstitutional Surveillance & United States v. U.S. District Court: Who The Winner Is May Be A Secret – Part 1

[Given the current surveillance state situation in America, the Keith case, formally known as United States v. United States District Court, is one of the most important cases from our recent past. But I don’t really believe you can understand or know the law of a case, without really understanding the facts. The Keith case doesn’t have simple facts, but they are fascinating and instructive. So bear with me – this is going to take awhile, and will be laid out over a series of four posts. What follows today is Part I. – Mary]

It was a time of war. America had been attacked in the Gulf of Tonkin. The National Security Agency (NSA) and our military had reassured us this was true. Our national security apparatus, Congress and press had joined behind the office of the President to lead us into a series of forays (Vietnam, Laos, Cambodia) that would leave tens of thousands of American soldiers dead and many times that wounded physically or mentally, while at the same time decimating over three million Vietnamese and over a 1.5 million Laotians and Cambodians.

At home, we were working our way through the civil rights movement, dealing with the cold war and threats of Russian nuclear weapons and witnessing anti-war protests that left students dead and buildings bombed. Algeria was hosting U.S. fugitives from justice, Eldridge Cleaver and Timothy Leary, while Cuban connections were alleged to be behind much of the organized anti-war movement.

Court martial proceedings had begun for the My Lai killings with polls showing most of America objected to the trial. President Nixon would later pardon Lt. Calley for his role. A trial had also, briefly, seemed to be in the works for the “Green Beret Affair,” the killing of Thai Khac Chuyen by Green Berets running an intelligence program called Project GAMMA. The investigation began after one of the soldiers assigned to the Project became convinced that he was also being scheduled for termination. Charges in the Green Beret Affair would be dropped after the CIA refused to make personnel available, claiming national security privileges.

Against this backdrop, Nixon and his campaign manager – attorney general, John Mitchell (the only Read more

Where’s Cheney and His Freon Pump?

Well this is good news, the United States Department of Justice is interested in finding and prosecuting human rights violators here in the “Homeland”. From the special announcement from DOJ:

The Human Rights and Special Prosecutions Section actively seeks out information that may assist the U.S. Government in identifying human rights violators who may have entered the United States.

If you know of anyone in the United States or of any U.S. citizen anywhere in the world who may have been involved in perpetrating human rights violations abroad, please contact HRSP either by email at [email protected] or by postal mail at:

Human Rights and Special Prosecutions Section (Tips)

Criminal Division

United States Department of Justice

950 Pennsylvania Avenue, N.W.

Washington, DC 20530-0001

You do not have to identify yourself when providing information. Please provide as much detail as possible, such as:

* the suspect’s name, place and date of birth,

* physical description, and current location;

* the suspect’s alleged human rights violations including the locations and dates of those activities;

* how you learned of the suspect’s alleged activities and when and where you saw the suspect.

We are unable to reply to every submission; however, your information will be reviewed promptly by HRSP.

Information on non-U.S. citizen suspects living in the United States may be provided to Immigration and Customs Enforcement in the Department of Homeland Security, at 1-866-347-2423 (a toll-free call).

Anybody here have any suggestions for the DOJ?? Glenn Greenwald has more.

Witt Reinstated To The Air Force; Wittless In The White House

The late, but great, news this fine Friday afternoon is the decision of Western District of Washington (WDWA) Judge Ronald Leighton in the case of Air Force Major Margaret Witt. Witt has been an Air Force reserve flight and operating room nurse since 1987 and was suspended from duty in 2004, just short of retirement, upon her base commanders being informed by an off base nosy neighbor that she was a lesbian.

From NPR:

A federal judge ruled Friday that a decorated flight nurse discharged from the Air Force for being gay should be given her job back as soon as possible in the latest legal setback to the military’s “don’t ask, don’t tell” policy.

The decision by U.S. District Judge Ronald Leighton came in a closely watched case as a tense debate has been playing out over the policy. Senate Republicans blocked an effort to lift the ban this week, but two federal judges have ruled against the policy in recent weeks.

Maj. Margaret Witt was discharged under the “don’t ask, don’t tell” policy and sued to get her job back. A judge in 2006 rejected Witt’s claims that the Air Force violated her rights when it fired her. An appeals court panel overruled him two years later, leaving it to Leighton to determine whether her firing met that standard.

This is indeed a wonderful decision, and one based upon the elevated level of scrutiny that is now clearly the standard in Federal court consideration of the rights based on sexual preference. The full text of the court’s decision is here. The critical language from the decision setting and clearing the table is as follows:

Plaintiff commenced this action by filing a Complaint on April 12, 2006. On July 26, 2006, this Court granted the government’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), concluding that the regulation was subject to rational basis scrutiny, and that the evidentiary hearings held, and factual findings adopted, by Congress provided a sufficient foundation to support the regulation. Plaintiff timely appealed.

The Ninth Circuit agreed with plaintiff. It held that Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472 (2003) effectively overruled previous cases wherein the Ninth Circuit had applied rational basis to DADT and predecessor policies. It held that something more than traditional rational basis review was required. Witt v. Department of the Air Force, 527 F.3d 806, 813 (9th Cir. 2008). The Circuit

Court vacated the judgment and remanded to the District Court the plaintiff’s substantive and procedural due process claims. It affirmed this Court’s dismissal of the plaintiff’s equal protection claim. On remand, this Court was directed to determine whether the specific application of DADT to Major Witt significantly furthers the government’s interest, and whether less intrusive means would substantially achieve the government’s interest. Witt, 527 F.3d at 821.

Now comes the interesting part of the opinion (and case as argued by the government) and it ties in directly with the Log Cabin Republicans v. USA DOD decision recently rendered in the Central District of California (I will return to that in a bit). Specifically, the 9th Circuit based at least partially upon briefing in the alternative by the government (i.e arguing multiple positions), granted the government’s argument that, at a minimum, they were at least entitled to argue that homosexuals were bad for Read more

What Bush and Ashcroft Meant By “If al-Qaida Is Calling”

Remember when George W. Bush defended his illegal warrantless surveillance program with these lines:

We are at war with an enemy who wants to hurt us again …. If somebody from Al Qaeda is calling you, we’d like to know why,” he said. “We’re at war with a bunch of coldblooded killers.

…when we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so … We’re at war, and as commander in chief, I’ve got to use the resources at my disposal, within the law, to protect the American people

That statement was made on January 2, 2006 in direct response to a question Bush got about Jim Risen and Eric Lichtblau’s blockbuster article in the New York Times exposing the illegal program that went to print just two weeks prior.

Since those early days of realizing the United States government was running an illegal and unconstitutional spy surveillance operation on its own citizens, we have learned an awful lot. For too many citizens, it does not even seem to hold interest. Today, the Center for Constitutional Rights reminds us what the Bush Administration was really up to, how patently absurd it was and just how big of a lie George Bush fostered on the American public. Turns out “If al-Qaida is calling” meant random government searches of phone books for Muslim sounding names and taking crank phone calls.

From a CCR press release I just received:

Today, the Center for Constitutional Rights (CCR) announced that six new plaintiffs have joined a federal, class action lawsuit, Turkmen v. Ashcroft, challenging their detention and mistreatment by prison guards and high level Bush administration officials in the wake of 9/11. In papers filed in Federal Court in Brooklyn, CCR details new allegations linking former Attorney General Ashcroft and other top Bush administration officials to the illegal roundups and abuse of the detainees.

Five of the plaintiffs in the original lawsuit won a $1.26 million settlement in November 2009. Read more

With Kagan On SCOTUS, We Are Still Down A Justice

With the long anticipated retirement of Justice John Paul Stevens, it was important for President Obama to appoint and get confirmed a new justice so there would not only be a full compliment of justices on the court, but to insure the ideological balance of the court was maintained. By selecting Elena Kagan, Obama certainly did not pick the most qualified person for the job, nor did he maintain the ideological balance particularly as Kagan undoubtedly moved the court to the right at least to some degree.

Now, it turns out, by appointing Kagan Obama did not even give the Court a full compliment of justices. From the Blog of Legal Times:

Supreme Court Justice Elena Kagan this week quietly recused herself in 10 cases that will be argued in the term beginning Oct. 4, bringing to 21 the number of cases in which she will not participate.

That represents more than half of the 40 cases the Court has already agreed to hear in the new term — a number that will grow in coming months as the justices agree to hear arguments in more new cases.

During her confirmation this summer, Kagan already indicated she would recuse in 11 cases in which she was counsel of record as solicitor general. The new batch appears to reflect a determination that her participation at earlier stages — even where her office did not file a brief — required her to step aside.

So, as it stands today, Kagan will not be participating in over half the cases on the Supreme Court docket for the coming term. Lovely. A full list of the cases Justice Kagan has recused on to date can be found at the BLT link.

What is more distressing, however, are the cases to come that Kagan will also undoubtedly be recusing on. For instance the al-Haramain, Jeppesen and Jewel cases from the 9th Circuit. There are a whole plethora of Executive/Unitary power, Habeas, Gitmo, Detainee and other critical war on terror cases Kagan either did have, or may have had, her fingers on as head of the Solicitor General’s office. At this point, it looks like she plans on recusing herself from anything and everything that was in her vicinity, no matter how nominally. As should be well known by now, there is no necessity for a justice to recuse from everything they have ever known about, no less an authority than Antonin Scalia proved that.

Now, quite frankly, I have no problem with Elena Kagan recusing from consideration of Vaughn Walker’s decision in al-Haramain, I think the case would be better off without her toadying for the Obama Administration’s view of supreme Executive power and covering of crimes through assertion of state secrets, but what about the Prop 8 Perry v. Schwarzenegger case? In case you have forgotten, a portion of that case (the cameras in the court issue) went to the Supreme Court; if Elena Kagan decides she has to recuse herself, or is looking for an excuse to avoid such a controversial matter, that is going to be a HUGE blow to the chances of success on appeal.

I wonder how many people really understood they would be getting a part time justice for such a critical period over the next couple of years? And for all those on the liberal end of the political spectrum that carped about the fundamental dishonesty of John Roberts when he swore he was just a “balls and strikes” kind of guy “respectful of precedent”, I wonder what they think of the same type of deception from Kagan when she ridiculously understated the depth of her anticipated recusal problem to the Judiciary Committee?

There were a lot of things needed from President Obama’s choice to fill the seat of Justice John Paul Stevens; none of them have been fulfilled so far by Elena Kagan.

Letter to Earl Blumenauer Re: Indemnification Agreements

Dear Congressman Blumenauer:

I must say, I was both surprised and heartened to see you intrepidly and doggedly pursuing the existence and nature of indemnification agreements from the United States government insulating and immunizing private companies such as Halliburton/KBR from damage liability they would otherwise accrue for heinous, illegal and/or unconscionable acts committed in their participation in national security and the war on terror. Excellent work sir!

However, now that you are up to speed on the insidious use and abuse of such provisions, maybe you would like to continue your fine work – and give honor to your oath of office to defend the Constitution – and ask the same questions, and demand answers thereto, regarding indemnification agreements given to telcos by the Bush Administration in conjunction with the telcos’ participation in the illegal and unconstitutional warrantless wiretapping program instituted by the Bush/Cheney Administration. And we know the program was illegal and unconstitutional because a United States Federal Judge directly and specifically declared it to be just that.

So, what you need to know is that the same type of craven indemnification agreements you have pluckily exposed for Halliburton/KBR were almost certainly given to the telcos participating in the President’s Wiretapping Program, and you owe it to your constituents and the citizens of this country to look into it and get answers just as you have done here.

Now I know this may be a lot to grasp and there is much for you to learn in order to successfully pursue this matter, but by great and fortuitous luck, I have already laid out everything you will need to get going. In fact, I did it nearly three years ago, and here is a taste:

For the foregoing reasons, the telcos are already protected by the immunity of existing statutory safe harbor provisions for legal conduct requested by the Administration and will have indemnity for other acts demanded by the Administration. I respectfully submit that the telcos are already sufficiently protected from the Spectre (some pun intended) of massive financial peril of the existing civil lawsuits; and that the only real reason for the desperate push for immunity is panic among Administration officials that their craven illegality will be exposed and they will be held to account. We now know for a fact, that which we have always suspected, thanks to Mike McConnell, namely that the entire belligerent push for FISA reform is all about immunity, and not about what George Bush would call “protectun Amarikuh”.

The minor issues with FISA that need tweaking could have been easily accomplished and, indeed, Congress offered long ago to work with them to do just that; but, of course, were belligerently spurned because, as Dick Cheney famously bellowed, “We believe… that we have all the legal authority we need”. This furious push has been about immunity, from the start, to prevent discovery of the Administration’s blatant and unconscionable criminal activity. The House of Representatives, and the cave-in Administration cover-up specialists in the Senate as well, should take a long, hard look at what is really going on here and steadfastly refuse the Administration’s self serving craven grab for the cover of telco immunity.

But, alas, Congress, which you were a member of, went along like a bunch of blind lemmings with the Bush/Cheney Administration’s demand for immunity for telcos that, along with the dishonest assertion of state secrets, has completely eviscerated citizens’ ability to know and understand what illegal and unconstitutional actions the US government is taking in their name, not to mention ability to seek proper redress for the crimes and acts.

So, now that you are all hardwired in on indemnification abuse, and on a roll of success, how about you go ahead and pursue this part of it? Come on Earl, it is your duty after all. Thank you in advance for your attention and cooperation in resolving this important matter.

Sincerely,

bmaz

The Nomination Gap In The Justice System

Hot on the heels of a pretty spirited discussion of the Obama Administration treatment of progressive nominees, both in the blog post here at Emptywheel and yesterday on Twitter, comes the reminder by Main Justice that there are no appointed, nor confirmed, US Attorneys in all of Texas:

Career prosecutors have run the four U.S. Attorney’s offices in Texas for more than a year. Obama has made one U.S. Attorney nomination in Texas thus far: state Judge John B. Stevens Jr., who withdrew from consideration for Eastern District of Texas U.S. Attorney.

The Senate has confirmed 66 of Obama’s U.S. Attorney nominees. There are 93 U.S. Attorney posts.

Now the framing of the report is a complaint by John Cornyn, which I have little sympathy for, and who has undoubtedly contributed somewhat to the impasse; but that said, the facts are pretty astounding.

Over a year and a half into the Obama Presidency, and still over 30% of the US Attorney positions remain unfilled or, even worse, still under the control of Bush/Cheney appointees. The percentage is only that low due to a recent surge in investitures of US Attorneys; for most of the current Administration’s term, the situation was even far worse than it is as of today.

Which led me to wonder exactly what the corresponding status was for federal judicial nominations. It is fairly bleak. There are 103 Federal judicial vacancies and, shockingly, on 48 of them even have so much as a nominee pending. 12% of the 876 total Federal judgeships are sitting vacant. In my own little nook of the world, the 9th Circuit, there are 13 total judicial seats vacant, and only three of them have even putative nominees.

The critical importance of filling judicial vacancies is explained very nicely in a current post by Gaius Publius at AmericaBlog that expands on my Progressive Nominations/Goodwin Liu post yesterday:

This matters for several reasons. One is that the current judiciary is overwhelmingly Republican-appointed and conservative (including Movement-Conservative):

Over the last three decades, Republicans have put the appointment of conservative judges at the top of their agenda. And controlling the White House 20 of the last 30 years has allowed them to carry out their plan. By the time George W. Bush left office, 60.2 percent of the judges, including two-thirds of the Supreme Court, had been appointed by Republican presidents. The younger Bush appointed nearly 40 percent of all federal judges.

Yet Obama has been cautious to the point of weird about reversing this trend. While news stories on this subject headline his lack of judicial confirmations, stories like this one also contain tales of his caution; Bloomberg:

A lot of groups are still waiting for this president to nominate someone who will really reshape the bench,” said Barbara Arnwine, executive director of the Lawyers’ Committee on Civil Rights in Washington. The group supports expanding legal protection for blacks and other minorities.

Gaius Publius is exactly right. In fact, reshaping the Federal judiciary away from the hard conservative Federalist society bent that has been installed and Read more

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