by Judith E. Schaeffer, Vice President, Constitutional Accountability Center

In a recent, important speech before the Ninth Circuit Judicial Conference, Supreme Court Justice Anthony Kennedy decried the growing crisis in our nation’s federal courts caused by an increasingly insufficient number of judges available to dispense justice to the American people. Justice Kennedy not only urged Congress to create additional judgeships, but he also questioned whether the Senate confirmation process for federal judges is “working the way it should be.” Well, it surely isn’t. Just ask Kimberly Mueller, who was nominated by President Obama back in March to fill a vacancy in the Eastern District of California and was approved by the Senate Judiciary Committee on May 6 without opposition, yet is languishing in Senate limbo, still waiting for a confirmation vote on the Senate floor.

In his speech, Justice Kennedy highlighted the judicial crisis in the Eastern District of California, the court to which Mueller has been nominated. The District serves a population of nearly seven million people in a geographic area that encompasses more than half of the state. Right now, there are only five active judges in the Eastern District, yet, according to Justice Kennedy, “the statistics tell us we need 15.” California Senator Barbara Boxer has noted that the court’s judges are carrying a caseload of “more than 1,100 cases per judge . . . more than twice the recommended number of cases per judge according to the Judicial Conference.” Only one other judgeship is authorized for the District, but that position – the one to which Mueller has been nominated — remains vacant. No wonder the federal judiciary has declared this vacancy to be a “judicial emergency.”

Kimberly Mueller is about as uncontroversial as judicial nominees get. A graduate of Stanford Law School, Mueller has served as a U.S. Magistrate Judge in Sacramento since 2003, and the ABA has rated her “unanimously well qualified” to be a District Judge. If confirmed, Mueller would be the first woman to serve as a District Judge in the Eastern District. (Yes, as hard as it is to believe in 2010, there are still “firsts” to be achieved for women in the legal profession.)

During any other Administration, an uncontroversial District Court nominee like Kimberly Mueller would have moved quickly from the Senate Judiciary Committee to a prompt confirmation vote on the Senate floor, particularly given the judicial crisis in the District to which she has been nominated.

So why is Kimberly Mueller still waiting for a vote? The answer is simple, and unacceptable. Throughout the Obama presidency, Senate Republicans have taken judicial obstructionism to an entirely new level, abusing the Senate’s procedural rules to block even the most uncontroversial of the President’s judicial nominees and giving new meaning to the phrase “Just Say No.” Mueller is one of many of these new pawns in this obstructionist game, which Republicans are playing to increase the backlog of nominees on the Senate floor and keep President Obama from filling judicial vacancies. This rank, hyper-partisanship diminishes the ability of our federal courts to dispense justice fairly and timely, and should concern every American, no matter his or her political leanings.

As trial level courts, the federal District Courts, like the one to which Magistrate Judge Mueller has been nominated, are the front lines for Americans seeking justice for violation of their federal constitutional and statutory rights as well as accountability from powerful wrongdoers, including corporations that illegally discriminate against their employees or flout federal laws intended to protect the environment. Some of these courts – like the Eastern District of California – are ridiculously overworked. When vacancies on these courts go unfilled, justice is delayed, and often denied — to the detriment of all Americans.

On September 13th, the Senate will return from its August recess for several weeks of business before it takes a pre-election recess. While there will be much on the Senate’s plate in that short period, it is imperative that Kimberly Mueller — and the President’s other judicial nominees who have been favorably vetted by the Judiciary Committee — receive an up or down vote on the Senate floor. No less than the American system of justice is at stake.

Today is Women’s Equality Day and the 90th anniversary of the effective date of the 19th Amendment, which guaranteed equal political rights for women. It may seem unbelievable to many Americans today, but for most of this country’s history, women were denied the franchise in states across the country (some states allowed women to vote before ratification of the 19th Amendment, others did not).

Indeed, the story is even more complicated and disturbing than that: as part of the otherwise inspiring and momentous adoption of the 14th Amendment in 1868, which enshrined birthright citizenship and equal civil rights and due process for all Americans, the Constitution actually allowed the denial of political rights to women, imposing a sanction only on the denial of the vote to “male inhabitants” of a state. This was the first use of a gender specific term in the Constitution, and some women’s rights advocates opposed ratification of the 14th Amendment on this basis.

The adoption of the 19th Amendment in 1920 reflects the arc of our constitutional progress. Americans rightly celebrate the Constitution’s 1787 Framers for creating the best and most durable form of government in world history. But we should all also be keenly aware of the important blind-spots in the amazing vision of the white men gathered in Philadelphia in 1787. It took the heroic labors of successive generations of Americans to eliminate slavery, give women the vote, and create the increasingly “more perfect union” we live in today. In a brilliant speech supporting the confirmation of Justice Sonia Sotomayor, Senate Judiciary Committee Chairman Patrick Leahy called our constitutional history a “journey” that:

began with improvements upon the foundation of our Constitution through the Bill of Rights, and then continued with the Civil War amendments, the 19th Amendment’s expansion of the right to vote to women, the Civil Rights Act of 1964 and Voting Rights Act of 1965, and the 26th Amendment’s extension of the vote to young people. These actions have marked progress along the path of inclusion, and have recognized the great diversity that is the strength of our great Nation.

This story of constitutional redemption should inspire all Americans, but progressives particularly because progressive social movements have been the motivating force behind just about every successful effort to make our Constitution better. At the same time, progressives should be focused hard and energized in response to the constitutional agenda of the Tea Party, which seeks to return to the America of the 1787 Framers and, as Jim Linn, a Tea Party member from San Diego explained to the Washington Post, this “would mean scrapping a lot of the Amendments.” Read more »

By Courtney Hostetler, CAC intern, Yale Law School ‘11

Last week, Constitutional Accountability Center filed an amicus curiae (friend-of-the-Court) brief in Williamson v. Mazda Motor, an important case concerning the ability of consumers to hold motor vehicle manufacturers liable for safety defects.  In Williamson – which the Supreme Court will hear during its upcoming October 2010 Term – the Court will revisit the doctrine of “implied preemption,” last applied by the Supreme Court in Wyeth v. Levine (discussed here and here), under which a court may hold that a state law is preempted by a federal law, even though the latter does not expressly provide for preemption. CAC’s brief, which supports the vitality of state common-law remedies that enhance Americans’ safety, argues that the text and history of the Constitution’s Supremacy Clause – which makes federal law controlling over state and local laws – does not support broad implied preemption of state laws and remedies and only requires preemption when a state law or remedy directly conflicts with federal law.  Establishing the supremacy of federal laws when an actual conflict arises between state and federal law is necessary and important to the functioning of our federal government.  But so, too, is the vital and historical role that state common law plays in protecting the public’s health and safety and in ensuring that individuals can obtain compensation for injuries caused by the failure of corporations or persons to meet a state’s health and safety standards.

Read more »

Yesterday, a federal district court judge in Virginia declined to dismiss a challenge brought by Virginia Attorney General Ken Cuccinelli to the “individual mandate” contained in the federal Patient Protection and Affordable Care Act, the historic health care reform law enacted earlier this year. The ruling, by Judge Henry Hudson of the Eastern District of Virginia, was not a decision on the merits of the state’s arguments but rather a procedural ruling that allows the lawsuit to proceed.

Specifically, yesterday’s ruling allows Cuccinelli to make his argument that Congress lacks the constitutional authority to require individuals to buy health insurance or pay a tax penalty.  However, this is an argument that is contrary to constitutional text and history.  As CAC has written about extensively – both in our Issue Brief entitled The States, Health Care Reform, and the Constitution, and, more recently, in this installment our blog series, Strange Brew: The Constitution According to the Tea Party – Congress’ power to pass health care reform that includes an individual mandate is firmly rooted in the Constitution, and in particular in the provisions in Article I, section 8 authorizing Congress to regulate interstate commerce and to tax and spend for the general welfare, as well as to enact laws that are necessary and proper in exercising its other powers.

Please stay tuned to Text & History for additional updates on this lawsuit.

by Judith E. Schaeffer, Vice President, Constitutional Accountability Center

In today’s Washington Post, Senator Jeff Sessions (R-AL), the ranking Republican on the Senate Judiciary Committee, claims that President Obama’s nominees to the federal trial and appellate courts are “moving along.”  It takes a great deal of chutzpah to make this claim in the face of the actual data, which show, as we detailed in a  post here several days ago, that Senate Republicans are engaged in unprecedented obstruction of the President’s lower court nominees.  Previously, uncontroversial nominees could be expected to clear the Judiciary Committee and be swiftly confirmed by a vote on the Senate floor.  But since Barack Obama took office, Republicans have abused procedural rules to virtually paralyze the process and block confirmation of the President’s nominees.

The irony –and fallacy – of Senator Sessions’ words surely are not lost on Jane Stranch, a nominee to the United States Court of Appeals for the Sixth Circuit from Tennessee who will celebrate a dubious anniversary this week, as August 6 will be one year since President Obama nominated her.  Stranch was voted favorably (15-4) out of the Judiciary Committee back in November, but has yet to receive an up or down vote by the full Senate.  Moving along?  Hardly.

Stranch epitomizes President Obama’s judicial nominees – most are uncontroversial and have bipartisan support, yet are going nowhere fast.  Stranch herself has the support of her home state Senators, both Republicans, including Lamar Alexander, a member of the Senate Republican leadership.  Senator Alexander even went to the Senate floor recently to ask for unanimous consent for an up or down vote on Stranch’s nomination.  He was soundly rebuffed by his own Republican colleague, Minority Leader Mitch McConnell (R-KY).

When the Republican leader won’t even give one of his own party colleagues the courtesy of unanimous consent to move forward with a vote on a judicial nominee, that says many things about the confirmation process in this Senate, but moving nominees along is not one of them.

This is the tenth installment of Constitutional Accountability Center’s new series, ‘Strange Brew: The Constitution According to the Tea Party,’ exploring the Tea Party’s erroneous claims about the Constitution’s text and history.  Click here to view previous posts from this series.
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by Doug Kendall and Matthew Cagle, Constitutional Accountability Center

One of the most bizarre claims made by a Tea Party-endorsed candidate has come from Mike Lee, who’s running for the U.S. Senate from Utah.  According to Mr. Lee, the Constitution’s “enclave clause” gives Utah the power of eminent domain over federal lands within the state’s borders. Recently, the theory was incorporated into Utah law.

To which the only plausible response as a constitutional matter is: what is Mike Lee talking about?  If you’ve never heard of the “enclave clause, ”don’t feel bad, neither had we, and we make a living studying the Constitution.  Turns out, the clause is located in Article I, Section 8 of the Constitution, which is where the document lists the powers of the federal government.  The 17th enumerated power in that list, appearing just before the Necessary and Proper Clause, is also known as the “enclave clause.” Here’s Clause 17 in its entirety:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;

Let’s start by pointing out that Clause 17 – which Lee reads to provide remarkable authority to Utah – is actually a broad grant of power to the federal government, authorizing it “to exercise Legislation in all Cases whatsoever.”  The second half of the Clause – Lee’s so-called “enclave clause” – uses the word “consent” only to define the lands to which these broad powers apply, meaning the Clause applies to lands obtained with the consent of the states for use as “Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.” Ft. Leavenworth R. Co. v. Lowe, 114 U.S. 525, 530, 539 (1885). On such transferred land, the U.S. has the power of “exclusive legislation,” just as it does in Washington, D.C.  While a state might reserve the right to enforce some criminal or civil laws on the transferred property, the Clause does not provide an affirmative grant of state power. Id. at 532-34. Read more »

by Doug Kendall, President & Founder, Constitutional Accountability Center

During his announcement last week that he would vote in favor of Elena Kagan’s nomination to the Supreme Court, South Carolina Senator Lindsey Graham – the sole Republican on the Senate Judiciary Committee to vote for Kagan – offered the following explanation:

The Constitution puts a requirement on me, as a senator, to not replace my judgment for the President’s…. Are we taking the language of the Constitution, that stood the test of time, and putting a political standard in the place of a constitutional standard?

Graham was of course referring to the intense partisanship that has overwhelmed the Senate judicial confirmation process (or lack-of-confirmation process) in recent years, and that has culminated in an unprecedented level of obstructionism since President Obama took office.   Graham is hardly the only Senator concerned about this paralysis.

In a dramatic showdown on the Senate floor last week, two leading Senate Republicans faced off over Sixth Circuit Court of Appeals nominee Jane Stranch, who was nominated by President Obama way back in August 2009 and was voted favorably (15-4) out of the Senate Judiciary Committee last November, but has yet to receive an up or down vote by the full Senate.  Stranch has the support of Tennessee’s two Republican Senators and last week, Senator Lamar Alexander (R-TN), a member of the Republican leadership, requested unanimous consent for a floor vote on Stranch’s nomination, only to have his own Minority Leader, Mitch McConnell (R-KY), object and override the request.

Meanwhile, for one of the first times since coming to office, President Obama scolded Republicans for their obstruction of judicial nominees during remarks from the Rose Garden, following a bipartisan meeting with congressional leaders earlier this week:

During our meeting today, I urged Senator McConnell and others in the Senate to work with us to fill the vacancies that continue to plague our judiciary.  Right now, we’ve got nominees who’ve been waiting up to eight months to be confirmed as judges.  Most of these folks were voted out of committee unanimously, or nearly unanimously, by both Democrats and Republicans.  Both Democrats and Republicans agreed that they were qualified to serve.  Nevertheless, some in the minority have used parliamentary procedures time and again to deny them a vote in the full Senate.

With this frustration boiling over, several Senate Democrats took to the Senate floor yesterday to protest the unprecedented delays directed against President Obama’s judicial nominees.  Sen. Mark Udall (D-CO) requested consent to hold floor votes on 20 nominees who have been approved by the Senate Judiciary Committee and who are awaiting confirmation, and to each Sen. Jeff Sessions (R-AL), Ranking Republican on the Senate Judiciary Committee, objected.  Meanwhile, numerous other Senators   including several members of the Committee — Ben Cardin (D-MD), Amy Klobuchar (D-MN), Herb Kohl (D-WI), Sheldon Whitehouse (D-RI), and Ted Kaufman (D-DE) — also came to the floor and protested the standstill.  The Senators emphasized the Senate’s long tradition of quickly confirming judicial nominees who have been approved by the Committee and, in particular, those who have the support of their home state Senators – as most of President Obama’s nominees do.  They also emphasized the impact the shortage of judges, especially district (trial) court judges, is having on Americans seeking justice.

These Senators have good reason to be outraged.  By this point in his first term (July 2002), President George W. Bush had had 61 nominees confirmed to the federal bench, to President Obama’s 36, and the Senate took less time to confirm Bush’s nominees on average than they have taken to confirm  Obama’s.   Moreover, consider the following: Read more »

This is the ninth installment of Constitutional Accountability Center’s new series, ‘Strange Brew: The Constitution According to the Tea Party,’ exploring the Tea Party’s erroneous claims about the Constitution’s text and history.  Click here to view previous posts from this series.
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by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

Somewhat surprisingly, even in the curious world of the Tea Party, several Tea Party Senate candidates have been asking people to vote for them precisely because they want to take away the people’s right to vote for them.  In other words, they are running on a platform that includes a call to repeal the 17th Amendment to the Constitution, which shifted the selection of U.S. Senators from the state legislatures to direct election by voters.   Such a repeal proposal is foolhardy—and not just because it banks on the rather ridiculous proposition that voters will turn out to vote to support taking away their right to vote.

It seems unlikely that voters will go for it.  “We the People” have passed six amendments expanding the right to vote, and the entire thrust of our constitutional history is toward expanding our democratic process, not taking choices away from voters.  But the movement to repeal the 17th Amendment is serious enough that the New York Times devoted an editorial piece to the issue, noting:

Allowing Americans to choose their own senators seems so obvious that it is hard to remember that the nation’s founders didn’t really trust voters with the job. The people were given the right to elect House members. But senators were supposed to be a check on popular rowdiness and factionalism. They were appointed by state legislatures, filled with men of property and stature.

Under the original Constitution, U.S. Senators were chosen not by the people, but by state legislators. Article 1, Section 3 of the Constitution provided that “the Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.” The 17th Amendment, ratified in 1913, was part of a wave of progressive constitutional reforms that sought to make the Constitution, and our nation, more democratic.  It gave Americans the right to vote directly for their Senators, thereby strengthening the link between citizens and the federal government.  (Whether Senators have been more or less able to serve as a check on “popular rowdiness” since adoption of the 17th Amendment is debatable, but considering that the Tea Party has the rowdiest party on the block right now, it is surprising that they would advocate returning to a more restrained, aristocratic vision of the Senate.) Read more »

This is the eighth installment of Constitutional Accountability Center’s new series, ‘Strange Brew: The Constitution According to the Tea Party,’ exploring the Tea Party’s erroneous claims about the Constitution’s text and history.  Click here to view previous posts from this series.
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by David Gans, Director of the Human Rights, Civil Rights & Citizenship Program, Constitutional Accountability Center

A rather surprising flash point in the confirmation debate over Supreme Court nominee Elena Kagan has been the argument by Tea Party members and allies that Kagan should not be confirmed because of Kagan’s testimony that her job as a Justice would be to “enforce the Constitution and the laws,” and that she doesn’t have a view about the protection of natural rights “independent of the Constitution.”  Tea-partiers are up in arms because Kagan limited herself to the protections set out in the Constitution, and did not embrace the Declaration of Independence as a source of “God-given inalienable rights” as Republican Senators Tom Coburn and Charles Grassley repeatedly pressed her to.  According to Rush Limbaugh, “She is basically just throwing the whole concept of natural law down the toilet and flushing it.  She is throwing the Declaration of Independence down the toilet.”   A whole host of Tea Party-affiliated websites parrot the identical claim – Kagan cannot be trusted to protect the liberties of Americans because of her “opposition” to the Declaration.

But in fact, Kagan’s basic point is unimpeachable.  A critical aspect of the job of a Supreme Court Justice is to decide cases brought under the Constitution, and that means looking to the Constitution, and not to the Declaration of Independence or natural law.  Justice Scalia and Justice Thomas have both made identical points, and no one has suggested this makes them unfit as Justices.  For example, Justice Scalia wrote in a 2000 dissenting opinion that “The Declaration of Independence . . . is not a legal prescription conferring powers on the courts,” while Justice Thomas told the Judiciary Committee in his 1991 confirmation hearing that he “did not see a role for the use of natural law in constitutional adjudication.”  So Kagan’s testimony is nothing new. Read more »

This is the seventh installment of Constitutional Accountability Center’s new series, ‘Strange Brew: The Constitution According to the Tea Party,’ exploring the Tea Party’s erroneous claims about the Constitution’s text and history.  Click here to view previous posts from this series.

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by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

As we noted in last week’s post taking on the Tea Party’s constitutional challenges to the “individual mandate,” the greatest rallying point for Tea Party opposition to federal government power is the Patient Protection and Affordable Care Act, the historic health care reform law enacted earlier this year.  The Tea Partiers’ heated rhetoric is reaching a boiling point with the upcoming elections.  Republican Rep. Zach Wamp, running for governor in Tennessee, suggested over the weekend that states should think about seceding from the Union because of the health care law, echoing a similar, earlier call from Texas Governor Rick Perry.  Several state attorneys general and governors have filed lawsuits challenging the Act — including one filed by Virginia Attorney General Ken Cuccinelli, and another by a group of state officials led by Florida Attorney General Bill McCollum — alleging that the Act exceeds Congress’s powers and infringes upon state sovereignty.   Virginia and Idaho have passed, and other states are considering, “nullification” laws that attempt to block implementation of the Act outright, a tactic not seriously pursued since a handful of states tried to block implementation of federal civil rights laws in the 1950s and ’60s.

Tea Party claims that federal health care reform violates the Constitution’s 10th Amendment and “states’ rights” rely on an inaccurate view of the federal government as a weak, sharply limited central government— a claim that CAC recently debunked in the Issue Brief, Setting the Record Straight: The Tea Party and the Constitutional Powers of the Federal Government— and a distorted understanding of federalism.  In reality, our Constitution creates a vibrant system of federalism that gives broad power to the federal government to act in circumstances in which a national approach is necessary or preferable, while reserving a significant role for the states to craft innovative policy solutions reflecting the diversity of America’s people, places, and ideas.  In addition, the Constitution’s Supremacy Clause gives the federal government the authority to enforce these lines of authority, preempting state law when necessary to achieve a national goal. Read more »