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Access to Justice

February 17, 2012
Majority Leader Ramps Up Effort to Force Votes on Judicial Nominees
by Nicole Flatow

With the election year underway and 103 current and future vacancies plaguing the federal courts, Senate Majority Leader Harry Reid is making headway in an aggressive push to force votes on long-pending judicial nominees.

On Wednesday, he successfully pushed through the nomination of Adalberto Jose Jordán to the U.S. Court of Appeals for the Eleventh Circuit, even as Sen. Rand Paul forced the 30 hours of debate to elapse before the final vote to confirm Jordán 94-5.

And on Thursday night, Reid was successful in securing confirmation of another nominee, Jesse Furman, to the Southern District of New York. Reid filed a motion to invoke cloture on his nomination Wednesday, but the Senate opted not to vote on the cloture motion, and to simply hold an up-or-down vote.

Both Jordán and Furman are consensus nominees -- both were approved by the Judiciary Committee with absolutely no opposition, and both have been ripe for an immediate vote since before the Senate left for the winter recess.

They are just two examples of the many highly qualified consensus nominees who have been pending for months on the Senate calendar.

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Access to Justice, Federal judicial selection, Other courts, Judicial Nominations, Separation of Powers and Federalism, Cloture, Harry Reid, Sen. Patrick Leahy, senate obstruction, the filibuster
February 16, 2012
NY Times’ Collins on the Long, Obstruction-Filled Road to Confirmation
by Nicole Flatow

This morning, The New York Times’ Gail Collins adds to the commentary on Adalberto Jose Jordán’s long and obstruction-filled road to confirmation in a facetious column describing her “shock” at Congress’ deep unpopularity. And she means deep unpopularity. As in, “Unpopular like the Ebola virus, or zombies. Held in near-universal contempt, like TV shows about hoarders with dead cats in their kitchens.”

Jordan’s nomination, she writes, is the latest example of Congress’ so-called “bipartisan cooperation.” She explains:

This week, the Senate confirmed Judge Adalberto Jose Jordan to a seat on the federal Court of Appeals for the 11th Circuit in Atlanta. A visitor from another country might not have appreciated the proportions of this achievement, given the fact that Jordan, who was born in Cuba and who once clerked for Sandra Day O’Connor, had no discernible opposition.

But Americans ought to have a better grasp of how the Senate works. The nomination’s progress had long been thwarted by Mike Lee, a freshman Republican from Utah, who has decided to hold up every single White House appointment to anything out of pique over ... well, it doesn’t really matter. When you’re a senator, you get to do that kind of thing.

This forced the majority leader, Harry Reid, to get 60 votes to move Judge Jordan forward, which is never all that easy. Then there was further delay thanks to Rand Paul, a freshman from Kentucky, who stopped action for as long as possible because he was disturbed about foreign aid to Egypt.

All that is forgotten now. The nomination was approved, 94 to 5, only 125 days after it was unanimously O.K.’d by the Judiciary Committee. Whiners in the White House pointed out that when George W. Bush was president, circuit court nominations got to a floor vote in an average of 28 days.

No matter. Good work, Senate! Only 17 more long-pending judicial nominations to go!

In an effort to move another one of those long-pending nominations, Senate Majority Leader Harry Reid filed a motion yesterday to force a vote on federal prosecutor Jesse Furman, nominated to a trial court seat in the Southern District of New York.

Senate Judiciary Committee Chairman Patrick Leahy had this to say about a week spent overcoming filibusters of judicial nominees:

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Access to Justice, Federal judicial selection, Judicial Nominations, Adalberto Jose Jordan, Cloture, Gail Collins, Sen. Harry Reid, Sen. Mike Lee, Sen. Patrick Leahy, Sen. Paul Rand, senate obstruction, the filibuster
February 8, 2012
Wal-Mart Decision Impacting Environmental Litigation, Greenwire Reports
by Nicole Flatow

The U.S. Supreme Court’s decision last term rejecting a class action gender discrimination lawsuit against Wal-Mart was seen as a major blow to corporate accountability in discrimination cases. But the case is also proving its impact in areas outside of the employment or discrimination context.

As Greenwire’s Lawrence Hurley reports, the Wal-Mart v. Dukes decision has been cited in several environmental decisions in both federal and state court, in just the first seven months since the case came down.

Hurley provides details on three of the decisions, all of which deny class certification to plaintiffs attempting to band together to sue large companies that they allege had contaminated their water supplies.

“The post-Wal-Mart court rulings so far also illustrate how keen the defense bar is to make the most of the Supreme Court case,” Hurley writes, quoting Richard Samp, a lawyer at the conservative Washington Legal Foundation.

"The decision is being cited by virtually every defendant who is opposing class certification," Samp said.

During a Senate Judiciary Committee hearing in June on the impact of Wal-Mart and a second case decided last term, AT&T v. Concepcion, University of Colorado law professor Melissa Hart warned:

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Access to Justice, Class actions, Economic inequality, Procedural barriers to court, Supreme Court, Other courts, Constitutional Interpretation and Change, Economic, Workplace and Environment Regulation, AT&T Mobility v. Concepcion, Benefit Corporations, Wal-Mart v. Dukes
February 6, 2012
Former Pa. Federal Judge Speaks Out on Vacancy Crisis
by Nicole Flatow

Around the country, an alarming rate of vacancies on our federal courts is leading to “exasperating delays for all parties involved,” writes former U.S. Court of Appeals for the Third Circuit Judge Timothy K. Lewis in The Philadelphia Inquirer.

“As a former federal judge, I know the toll this persistently high vacancy rate takes on our courts,” writes Lewis, who is now counsel at Schnader Harrison Segal & Lewis. “Federal judges have reported being forced to handle criminal caseloads more than double what they confronted just two years ago. This, in turn, is limiting the access people have to the judicial system.”

Much of the problem is caused by unprecedented Senate obstruction – there are now 41 judicial nominees awaiting Senate action and some Republicans are threatening to hold up votes on every nominee. But in Pennsylvania, Lewis notes, there is a different problem: There are six vacancies on Pennsylvania’s district courts, and none of them have a nominee. Before the president can make a nomination, the state’s senators must submit names for the White House’s consideration, and Pennsylvania’s senators, Bob Casey and Pat Toomey, have not yet done so.

“So long as the senators do not submit names, the process cannot move forward - and the seats remain empty,” Lewis writes. “Casey and Toomey have a good working relationship, and they have indicated that they are working on identifying appropriate judicial nominees. But it is long past time that they make this issue a higher priority.”

Visit JudicialNominations.org to learn more and follow developments.

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Access to Justice, Federal judicial selection, Other courts, Judicial Nominations, U.S. Court of Appeals for the Third Circuit
January 20, 2012
A Rare Win for Fairness Over Procedure in Capital Case
Guest Post

By Mary Schmid Mergler, senior counsel for The Constitution Project’s Criminal Justice Program. Mergler is the coauthor with Christopher Durocher of the recent ACS Issue Brief “The ‘Right-to-Counsel Term.’"

On Wednesday, the Supreme Court held in Maples v. Thomas that Alabama death row inmate Cory Maples was entitled to have his claims heard in federal court despite a previously missed filing deadline, because his counsel’s complete abandonment of him constituted grounds to excuse that missed filing. The Maples decision was a welcome one, as the triumph of fundamental fairness over procedure and technicalities in our criminal justice system has grown increasingly rare.

Cory Maples was convicted of murdering two acquaintances after a night of drug and alcohol use. His two court-appointed defense attorneys were inexperienced and ineffective. Their entire defense lasted about an hour. They failed to argue Maples’ obvious intoxication defense, and they failed to produce mitigating evidence of severe abuse that Maples had suffered as a child — the sort of evidence that often prevents juries from issuing a death sentence. In fact, the jury voted 10-2 to sentence Maples to death; a 9-3 vote would have meant life in prison.

Two lawyers from the New York law firm of Sullivan & Cromwell (S&C) agreed to represent Maples pro bono during his state post-conviction appeals, since Alabama — virtually alone among death penalty states — provides no post-conviction counsel for death row inmates. A state court denied Maples’ initial habeas petition, triggering a filing deadline to appeal. However, prior to that decision, both of his pro bono attorneys had left S&C without providing the required notice to the court or Maples of their departure. When the notice of the denial and impending deadline arrived at S&C, no lawyer ever looked at it; a mailroom employee returned it, unopened, to the Alabama court clerk stamped “Returned to Sender—Attempted, Unknown.” The Alabama court clerk took no further action to ensure Maples or his counsel received notice. (There was a third attorney of record in the case, but as the Court’s opinion explains, he was only involved as local counsel to admit the S&C attorneys to practice in Alabama courts; he was completely uninvolved in the substance of the case.)

As a general rule, federal courts cannot consider claims of state prisoners in habeas proceedings when a state court has denied those claims based on independent and adequate state procedural grounds. So when Maples subsequently filed a federal habeas petition, the federal district court held that his failure to raise the claims in state court in a timely manner barred the federal court from considering them. Fortunately, an exception to this procedural bar exists if the petitioner can demonstrate “cause for the [procedural] default [in state court] and actual prejudice as a result of the alleged violation of federal law.” The Supreme Court’s opinion in Maples addressed the question of whether such “cause” existed in Maples’ case.

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Access to Justice, Death penalty, Habeas corpus, Habeas corpus, Indigent defense, Supreme Court, Criminal Justice, Guest Post, Gunfight: The Battle Over the Right to Bear Arms in America, Maples v. Thomas

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