The chief of the Justice Department’s criminal division, Alice Fisher, announced she will leave the government on May 23, after three years of service in that position. After her departure, only three division chiefs will have been confirmed by the Senate. She was initially installed by President Bush as a recess appointment in August 2005, and ultimately was confirmed by the Senate in September 2006, but faced criticism during the nomination process for never having tried a case and lacking experience as a federal prosecutor.

The Blog of the Legal Times notes Fisher had served as Deputy Assistant Attorney General under then-Assistant AG Michael Chertoff. They had worked together during Kenneth Starr's Whitewater investigation.

Resources on the role of the Department of Justice are available here.

In an opinion piece in the Legal Times ($), attorney Al Meyerhoff suggests that the Senate should not confirm any judicial nominees until the next president takes office. He argues the Bush administration has had a large effect on the judiciary.

During the first year of the Bush presidency, the Democrats confirmed 59 appointments, twice the number confirmed in Clinton’s first year. Overall . . . 86 percent of Bush judicial nominations have been confirmed. . . . [At the same time,] the Bush administration and its allies have made a politicized judiciary into an art form.

He cites “real-world” consequences of this ideological shift.

It is [the circuit] courts that typically make final decisions about what is in the water we drink, the food we eat, the air we breathe; about the rights of the accused, the right to privacy, and the rest of our most basic liberties. And it is those courts that have shifted to the right, that are more likely to defer to executive power, favor big business, and protect the individual less.

by Justin Levitt, Counsel, Brennan Center for Justice at NYU School of Law

Crawford v. Marion County Election Board 07-21
Indiana Democratic Party v. Rokita 07-25

On April 28, the Supreme Court handed down a decision in the Crawford cases, rejecting a challenge to Indiana’s law requiring voters at the polls to provide certain types of government-issued photo identification. I had predicted that the opinion would likely have impact far beyond Indiana, refining the standard for justifying a burden on voters, and potentially changing the ground rules for 2008 and beyond. But by and large, it looks like I was wrong: though the rhetoric around the case grows ever louder, in terms of the legal holding, this was far more a whimper than a bang. 

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by Deborah Colson, Senior Associate in the Law and Security Program at Human Rights First

America tells the whole world that it has freedom and justice. I do not see that. . . .There are almost 100 detainees here. We do not see any rights. You do not give us the least bit of humanity . . . Give me a just court. . . Try me with a just law.

—Salim Hamdan to Judge Keith Allred, Guantánamo Bay, April 29, 2008.

Guantanamo Bay, April 30, 2008: Salim Hamdan rejected the military commission process for the second time yesterday afternoon, asking that he be tried instead under a system of “just law.”  Mr. Hamdan interrupted a pretrial hearing during which the parties were mired in technical legal arguments to plead with the judge to take a step back and evaluate the integrity of the process. His words were powerful and eloquent. He questioned why the government is trying him in a made-up system pursuant to made-up rules. And he observed that, even when he wins, he loses because the government repeatedly changes the rules midstream:

If you ask me the color of this table, I will tell you it’s white. You say, “it’s black.” I say, “no, it’s white.” You say, “no, it’s black.” I say fine, “it’s black.” You say “no, it’s white.” This is the American government.

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Today, ACS Board Member Dawn Johnsen testified on “Secret Law and the Threat to Democratic and Accountable Government” before the Senate Judiciary Committee’s Subcommittee on the Constitution. A transcript of her prepared remarks is available here (video is forthcoming). Professor Johnsen served as Acting Assistant Attorney General, heading the Department of Justice’s Office of Legal Counsel (OLC) during the Clinton administration.

In her testimony, Professor Johnsen condemned the role that the OLC – which provides legal advice to the Executive Branch to make sure it complies with the law – has played regarding counterterrorism issues in the Bush administration. She testified:

OLC has been widely and deservedly criticized for the substance of its legal interpretations, which at least at times have not reflected principled, accurate assessments of applicable legal constraints, but instead were tainted by the Administration’s desired policy ends and overriding objective of expanding presidential power. In addition, OLC has been terribly wrong to withhold the content of much of its advise from Congress and the public­—particularly when advising the executive branch that in essence it could act contrary to federal statutory requirements.

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by Craig Gurian, Project Manager, Fair Housing For All

People commonly bemoan the segregated state of our schools, but seldom relate that educational segregation to its fundamental cause: the profound and continuing residential segregation that exists north and south, east and west.

Indeed, the cause of fair housing has never commanded a sustained commitment on any level of government, nor has it ever attracted a robust bar.  Forty years after the passage of the Fair Housing Act, the number of fair housing lawyers remains remarkably small, and those lawyers who do practice in the area have had no organizational voice of their own.

We have just created Fair Housing for All in the hopes of: (1) strengthening and enlarging the ranks of fair housing attorneys; of (2) providing a voice for those attorneys; (3) fighting for legislative change in the service of fair housing on whatever level of government seems congenial; and (4) improving our ability to work with and the fair housing organizations and others on the front lines of the struggle for fair housing.

We invite you to examine our statement of principles and a list of our tentative legislative priorities, and then to join with us as we work to reclaim the term “community” as one that signals genuine inclusion and the crossing of racial, neighborhood and other artificial dividing lines.

After being convicted of murder and confined in a Texas prison for more than 27 years, James Lee Woodard joined an expanding list of prisoners whose convictions have been overturned because of DNA evidence.

Woodard was released from prison Tuesday, April 29 after DNA testing showed him not to be guilty of murder.

Texas District Judge Mark Stoltz told Woodward at a hearing before his release that, “No words can express what a tragic story yours is.”

The Associated Press reports that 31 people in Texas have been exonerated through DNA testing, a national high according to the news agency.

The Innocence Project, which works to overturn wrongful convictions, was instrumental in securing Woodward’s release.

Woodward was convicted of the 1980 murder of his girlfriend, according to the Innocence Project of Texas largely on the testimony of two eyewitnesses.

by Edward Correia, a Washington, D.C. attorney and adjunct professor at the Washington College of Law at American University

There is overwhelming scientific evidence that Darwinian evolution explains the origin of all plants and animals, including human beings. That is why it is taught in American high schools. Nevertheless, a large portion of the American public, particularly religious conservatives, reject evolution and view it as contrary to the Biblical account of creation. As science discovers more and more about the origins of life and the creation of the universe itself, we can expect the same conflicts to emerge with respect to these topics, too. 

At various times, the anti-evolution movement has persuaded legislatures to bar the teaching of evolution altogether or to require that Biblical account of creationist be taught alongside it. More recently, religious conservatives have demanded that a less expressly religious theory of “Intelligent Design” be taught -- or at least that students be made aware of it. By and large these approaches have been rejected by the courts. Another possibility is to let every view be presented, in other words, turn the classroom into a public forum. But creating a public forum would push the classroom experience over the edge into incoherence.

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A new study concluded: “the race of the defendant and victim are both pivotal in the capital of capital punishment: death was more likely to be imposed against black defendants than white defendants; death was more likely to be imposed on behalf of white victims than black victims.”

According to Scott Phillips of the University of Denver, who examined death penalty cases in Harris County, Texas, if one takes into account the nature of the crime, “the odds of a death trial are 1.75 times higher against black defendants than white defendants,” with the odds of a death sentence for a black defendant at 1.49 times.

Adam Liptak of the New York Times commented that the statistics “have profound implications. For every 100 black defendants and 100 white defendants indicted for capital murder in Harris County, Professor Phillips found that an average of 12 white defendants and 17 black ones would be sent to death row. In other words, Professor Phillips wrote, ‘five black defendants would be sentenced to the ultimate sanction because of race.’”

Liptak notes that in 1987, the Supreme Court, in the 5-4 decision, held in McClesky v. Kemp that statistical evidence of racial disparities in the administration of the death penalty does not violate the Constitution.

Justice Antonin Scalia was interviewed on 60 Minutes Sunday evening. The full story (including video) is available here. Part 1 of the video is available below. Part 2 is below the fold. Update: Justice Scalia was also interviewed on NPR (parts 1, 2, 3) and by the ABA Journal (here).

Professor Geoffrey R. Stone of the University of Chicago Law School explained his view of the proper mode of constitutional analysis, including a critique of originalism and conservative activitism,  in this series of articles.

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by Deborah Colson, Senior Associate in the Law and Security Program at Human Rights First

Guantánamo Bay, April 28, 2008: Prosecutors and criminal defendants rarely see eye to eye. But defendant Salim Ahmed Hamdan and former chief prosecutor Morris Davis agree on one thing: The military commission system is fundamentally flawed, and justice in Guantánamo is near impossible.

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Here is this week's congressional hearings schedule, with links to the daily calendars for the House and Senate, the weekly House whip information (majority/minority), and the Senate floor schedule.

Of note: on Wednesday the Senate Judiciary Committee’s Subcommittee on the Constitution will hold a hearing on “Secret Law.” Professor Dawn Johnsen will testify at the hearing. In addition to serving on ACS’ Board of Directors, she co-authored a white paper (along with 18 former OLC attorneys) on Principles to Guide the Office of Legal Counsel, a law journal article on the same topic, and participated in a panel discussion on principles to guide the Department of Justice. Bradford Berenson, who is also scheduled to testify, participated in a panel discussion on whether there will be limits to the commander in chief power in the 21st century. A third panelist, David Rivkin, has spoken at numerous ACS events.

There is also a hearing on judicial nominations on Thursday.

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The U.S. Supreme Court issued a 6-3 decision in the voter ID case Crawford v. Marion County Election Board, rejecting a challenge to an Indiana law that requires voters to show a government-issued photo ID before being allowed to vote.

Justin Levitt, Counsel at the Brennan Center for Justice, described the case for ACSBlog as turning on two issues. “The Court will determine whether a law that makes it substantially more difficult for many eligible citizens to cast a valid ballot is toward the ‘severe’ end of the spectrum of First Amendment infringements. And it will determine whether such a law is sufficiently justified by a state’s asserted interest in confronting a hypothetical concern.” He predicted the decision “will set the ground rules governing which eligible American citizens will be able to exercise their right to vote, and which eligible citizens will not, in 2008 and beyond.”

According to SCOTUSBlog, “three Justices said the evidence offered against the requirement in Indiana did not support a challenge to the law as written — that is, a ‘facial’ challenge – and three others said the law only imposed a minimal and justified burden on voters. Three Justices dissented.”  Thus, “a majority of the Court has not barred all future challenges to voter ID laws, provided future cases seek to test such laws as they were actually applied in a specific election.  Still, the plurality opinion that announced the Court’s judgment – written by Justice John Paul Stevens — probably means that any such ‘as-applied’ challenges would not be easy to make.”

ACS hosted a press briefing on the case before arguments in January. Video and a transcript from that discussion are available, which featured Deborah Goldberg, Bradley A. Smith, Jon M. Greenbaum, and moderator Tova Wang. Audio of the argument before the High Court is available here.

A new study finds that state courts are far more likely to vacate arbitration awards for employees than for employers.  State appellate courts confirmed only 56.4% of the cases in which employees prevailed in arbitration, as opposed to 86.7% of the cases in which the employer prevailed, the study finds.

There is a growing debate, fueled by poor military medical care, about whether active-duty service personnel should be able to sue for malpractice.  Such malpractice suits have been barred since the Supreme Court’s 1950 decision in Feres v. United States. 

Feres’ critics argue that it shields negligent healthcare providers from accountability and seek a legislative fix, but supporters contend that it protects the military from costly litigation. 

Earlier this week, a three-judge panel of the U.S. Court of Appeals for the Second Circuit held that former EPA Administrator Christine Todd Whitman could not be held liable for telling New York City residents that the air near the fallen World Trade Center was safe to breathe following the terrorist attacks on Sept. 11, 2001.  The lawsuit, filed by a group of workers and residents that lived near the site, alleged that Whitman and other EPA officials had misrepresented the health risks of the dust and debris from ground zero.  A lower court judge had allowed the case to proceed, labeling Whitman’s actions "conscience-shocking."

The U.S. Supreme Court heard argument in six cases this week. ACSBlog previewed argument in the campaign finance case Davis v. FEC, regarding the constitutionality of the so-called "millionaire's amendment" that relaxes campaign finance limits for opponents of self-funded candidates, and the employment discrimination case Meacham v. Knolls Atomic Power Laboratory, regarding who bears the burden of proving that firings were based on reasonable factors other than age.

Other cases concerned whether a plaintiff has standing under Article III when he is assigned the right to pursue a legal claim but will not garner proceeds from the outcome, whether traditional rational basis equal protection analysis applies to public employment decisions, a confrontation clause case, and an ERISA case. Transcripts are available here. This week marks the end of the argument calendar for the 2007-2008 Term.

The Supreme Court granted certiorari in two cases this week. Chambers v. U.S. concerned whether, under enhanced sentencing guidelines, the failure to report to prison is the equivalent of escape. U.S. v. Eurodif involves the question of whether uranium enrichment service contracts are subject to federal anti-dumping laws. The Court denied certiorari in a number of cases, including Exxon's appeal of a $112 million verdict in an environmental lawsuit (Exxon has another case pending before the Court regarding the Exxon Valdez oil spill), and 11 death row appeals.

Earlier in the week, a federal judge in Louisiana ordered a public school board there to halt a practice of allowing Bible distribution at an elementary school.

Last year after Principal Andre Pellerin of Loranger Middle School in Tangipahoa Parish allowed an evangelical group, Gideons International, to distribute the Bibles to fifth-graders outside of Pellerin’s office, parents complained about the practice.

One fifth-grader said that she feared being taunted by her peers if she did not take a Bible. The student’s parents sued the school board after it refused to bar distribution of Bibles. Judge Carl J. Barbier, in an 11-page ruling, said the school board’s practice of allowing the Bible distribution was a violation of the First Amendment principle of the separation of church and state. Barbier found that the school board had no secular purpose for allowing the Bible distribution and that in elementary schools, students should not be coerced to engage in religious activities.

The court concluded, in part, that the Bible distribution was “ultimately coercive” as the fifth-grader “was pressured to accept a Bible” in violation of federal court precedent and that the distribution of Bibles “is a religious activity without a secular purpose.”

The school board, which has a long history of defending policies against First Amendment challenges, voted quickly to appeal Barbier’s ruling to the 5th U.S. Circuit Court of Appeals.

Board Attorney Chris Moody told The Advocate, a Baton Rouge daily, that the school board was “very disappointed with the judge’s decision.”

by Doug Kendall, founder and Executive Director of Community Rights Counsel (CRC), a public interest law firm in Washington DC. He is in the process of launching a new organization, Constitutional Accountability Center, a think tank, law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history.

Could Alabama bring back the whipping post or brand the skin of a thief with a scarlet T, and not run afoul of the Eighth Amendment’s prohibition against cruel and unusual punishment? Such a proposition may seem outlandish, but it is what opinions signed last week by Justices Antonin Scalia and Clarence Thomas in Baze v. Rees would seem to sanction.

These opinions haven’t gotten much attention, but they illustrate everything that is wrong about originalism as it is practiced by Justices Scalia and Thomas. Too often, these justices manipulate text, speculate wildly about the intentions of the Framers, and end up far from the letter and spirit of the Constitution. Recognizing the weakness of the conservative arguments about what the Constitution says and compels would help progressives immeasurably in responding to the rise of the conservative legal movement.

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Yesterday, the White House threatened to veto legislation that "would make it easier for victims of discrimination to sue their employers over unequal pay," the Washington Post reported. The legislation, known as the Lilly Ledbetter Fair Pay Act of 2007, seeks to overturn a 5-4 U.S. Supreme Court ruling in Ledbetter v. Goodyear Tire & Rubber. In that case, the Court narrowly interpreted employment discrimination law to prohibit a lawsuit for gender-based pay discrimination unless the discrimination occurred within 180 days of the plaintiff's filing suit, regardless of when she found out about the discrimination. A Congressional Research Service Report explained the issues at play in Ledbetter:

In Ledbetter, the female plaintiff alleged that past sex discrimination had resulted in lower pay increases and that these past pay decisions continued to affect the amount of her pay throughout her employment, resulting in a significant pay disparity between her and her male colleagues by the end of her nearly twenty year career. Under Title VII, a plaintiff is required to file suit within 180 days after an alleged unlawful employment practice has occurred. Although the plaintiff in Ledbetter argued that each paycheck she received constituted a new violation of the statute and therefore reset the clock with regard to filing a claim, the Court rejected this argument, reasoning that even if employees suffer continuing effects from past discrimination, their claims are time barred unless filed within the specified number of days of the original discriminatory act.

Catherine Fisk, Duke University professor of law, previewed the Ledbetter case in this blog post. Fatima Goss Graves, Senior Counsel at the National Women's Law Center, provided additional analysis of the case and the legislation before Congress. The Post also ran this editorial. ACS explored three other employment discrimination cases before the Court in this press briefing from February 2008.

Today, the U.S. Supreme Court unanimously held, in Virginia v. Moore, that it is not unconstitutional for police to conduct a search following an arrest , even if the arrest violated state law, so long as the police had probable cause. In this case, instead of giving David Lee Moore a ticket for a misdemeanor traffic offense, police arrested him, took him to a hotel, and conducted a personal search, finding cocaine in his jacket pocket. SCOTUSBlog has more here and here.

by Simon Lazarus and Harper Jean Tobin, attorneys with the National Senior Citizens Law Center

On April 23, the Supreme Court will hear arguments in the fifth and final age discrimination case before it this term, Meacham v. Knolls Atomic Power Laboratory. This case – brought by twenty-six workers laid off by a Naval contractor – will likely provide clues to at least two important questions:

First, at a time when shrinking pension benefits and rising health costs are forcing more and more employees to work past retirement, whether the Age Discrimination in Employment Act (ADEA) will provide effective protection against practices that disproportionately harm older workers.

Second, and more broadly, how far the Roberts Court is prepared to go to cast aside text, precedent, the position of the EEOC, and even the Bush Administration’s Solicitor General in its apparent quest to curb job discrimination suits generally as an irritant to business defendants.

The Meacham lawsuit was brought by a group of workers who lost their jobs in an “involuntary reduction in force” at the Knolls laboratory. Layoff decisions were made by managers on a subjective basis, with fuzzy standards and little oversight. As it happened, thirty of the thirty-one employees laid off from various departments were over forty. The Second Circuit held that the employees had established the minimum proof necessary to prevail.

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Tuesday is "Equal Pay Day": the day when an average woman’s wages finally catch up to the wages earned the year before by the average man. Earlier this month, Fatima Goss Graves, senior counsel at the National Women's Law Center, shared her wish for Equal Pay Day.

by Ciara Torres-Spelliscy, Counsel, Brennan Center for Justice at NYU School of Law

On Tuesday, April 22, the Supreme Court will hear oral arguments in a case testing the constitutionality of the so-called “Millionaires’ Amendment” of the Bipartisan Campaign Reform Act (“BCRA,” also known as “McCain-Feingold”). The Millionaires’ Amendment passed in 2002 as part of a reform package to update and improve the nation’s campaign finance laws.

The Millionaires’ Amendment somewhat levels the playing field for opponents of self-financed candidates who plan to spend $350,000 or more of their own money on their campaign for federal office. Once a candidate for federal office spends more than $350,000 of personal funds on a campaign, their opponent will be allowed to raise private funds in amounts that are triple the normal limits – up to $6,900/person/election – and can coordinate additional expenditures with his or her political party, up to a cap. The Amendment also requires certain financial disclosures from both candidates so that the FEC can monitor when the cap has been reached. In all cases, the self-financed candidate can spend as much money as he or she desires.

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Here is this week's congressional hearings schedule, with links to the daily calendars for the House and Senate, the weekly House whip information (majority/minority), and the Senate floor schedule.

Please note hearings on Wednesday on national security letters, FBI oversight, and preserving presidential records, plus a hearing on Thursday on war powers.

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