federal judiciary

Carl Tobias on Nominating Judge Diane Humetewa to the Ninth Circuit

Matthew L.M. Fletcher

Here is “Nominating Judge Humetewa to the Ninth Circuit,” which appears in the Los Angeles Review of Books blog. HT.

An excerpt:

Obama could have nominated Humetewa, but little time remained in his tenure for the Senate to confirm her. Thus, President Trump should promptly make Humetewa’s nomination. Elevation is a venerable tool which modern Presidents have employed, because the Senate has already confirmed the jurist, who has compiled a lengthy, accessible record. Trenchant Ninth Circuit illustrations encompass Judges Mary Murguia and Jacqueline Nguyen. The White House must assiduously consult McCain and Flake, who should be very supportive, as they promoted Humetewa’s district court appointment, especially by persuading GOP colleagues to favor her approval.

In sum, President Trump should promptly nominate Judge Diane Humetewa to the Ninth Circuit. Because she is a well qualified, consensus jurist, who has much experience addressing critical issues that the Ninth Circuit resolves, Humetewa will serve with great distinction.

Robert Reich: Trump’s Assault on Federal Judiciary is Grounds for Impeachment

Matthew L.M. Fletcher1 Comment

Here is “Trump’s Unconstitutional Assault on the Judiciary.”

 

Fletcher Study on American Indian Legal Scholarship and the Courts

Matthew L.M. Fletcher

I have posted the data so far in chart form for my ongoing study on the impact of American Indian legal scholarship on the judiciary. The draft paper, which will be available on a limited basis at the Berkeley conference on Phil Frickey’s legacy, is called “American Indian Legal Scholarship and the Courts.” The data is available on SSRN here.

Here is the abstract for the appendices:

“American Indian Legal Scholarship and the Courts” is a forthcoming article that includes charts representing data on the citation patters of federal, state, and tribal courts to American Indian legal scholarship (defined as law review and similar publications focused on American Indian law). This paper includes three appendices in the form of simple charts that organize that data. Appendix 1 is a chart of Supreme Court opinions dating back to 1959 that include citations to Indian law review articles. Appendix 2 is a chart of law review articles cited in lower federal, state, and tribal courts since 1959, organized by article. Appendix 3 is the same chart reversed, with the chart organized by case first.

NYTs Op/Ed: “Federal Judges Should Write Their Own Opinions”

Matthew L.M. Fletcher

Here.

Native Lawyers Join With Other Groups at White House Briefing to Call for End to Judicial Vacancies

Kate Fort

From NARF:

Yesterday NARF joined with 28 other national organizations to call for an immediate end to the persistent and destructive obstruction of judicial nominees in the United States Senate.  The joint statement released by NARF and others reads as follows:
Regardless of where you live or what issues you care about, all Americans deserve a judiciary that works for them.  Today’s White House briefing with community leaders, legal experts and advocates for an effective judiciary is an unequivocal statement about that priority.
Recent cases demonstrate that no matter the issue – health care, immigration, marriage equality, workers’ rights, employment discrimination, environmental regulation, privacy, and ethics – the courts will continue to play an increasingly important role in the lives of hardworking Americans. But the courts can’t function without judges.  Unprecedented obstruction by a minority in the Senate has left the nation with 96 current and future vacancies on the federal courts, leading to a substantial backlog of cases that undermines our system of justice and makes it impossible for most Americans to have their case heard in a timely manner.
Additional coverage here:

Three prominent Oklahomans visited the White House and Capitol Hill on Monday to urge Senate confirmation of federal judicial nominees. The process of approving judges to the federal bench often slows in the months leading up to a presidential election as lawmakers from the party out of power sometimes stall action in hopes that they’ll win the White House and get a chance to replace the nominees with their own.

Former U.S. Attorney Dan Webber, former Seminole Nation Chief Enoch Kelly Haney and Jeremy Aliason, executive director of the National Native American Bar Association, went first to the White House to meet with Attorney General Eric Holder and White House counsel Kathy Ruemmler about the vacancy rate.

And here:

WASHINGTON, DC – Four Arizona community leaders, advocates and legal experts will travel to the nation’s capital on Monday, May 7, to meet with White House officials about the vacancy crisis in America’s federal courts. Nationwide, one in nine federal judgeships are vacant. Nearly one out of every ten federal judgeships remains vacant, and 250 million Americans live in a community with a courtroom vacancy.

***

Local invitees to the White House meeting include:

  • Lou Hollingsworth, Partner, Hollingsworth Kelly
  • Stan Lubin, Member, American Constitution Society Judicial Nominations Task Force
  • Nick Enoch, Member, American Constitution Society Judicial Nominations Task Force
  • Patty Ferguson, National President, National Native American Bar Association

They will join approximately 150 individuals from 27 states in a day of discussions with White House staff. A deal between Senate Republicans and Democrats to allow judicial nominations to proceed in the Senate expires May 7th, and the advocates are urging the Senate to hold final up-or-down votes on all pending nominees.

TNR: Justin Driver on Obama’s Judicial Philosophy

Matthew L.M. Fletcher

From How Appealing:

“Obama’s Law: A new argument about his legal philosophy–and its troubling consequences.” Law professor Justin Driver has this cover story (pass-through link) in the June 30, 2011 issue of The New Republic.

Andrew Cohen on Arvo Mikkanen and “the White Man”

Matthew L.M. Fletcher4 Comments

Here.

A snippet:

[G]uess how many federal judges in Oklahoma, and in the rest of the United States, have ever been of Native American descent? Over the past nine generations since the Trail of Tears started depositing its survivors, the number is two. Let me repeat: Of the thousands of federal judges who have served across the nation over the past 224 years since Article III of the Constitution created our federal judiciary, there have been only two Native American jurists, according to statistics at the Federal Judicial Center, the official source of such biographical information about the federal judiciary.

And one of those two, U.S. District Judge Frank Howell Seay, who sits today with senior status in Oklahoma, didn’t even know about his native heritage until he was in his 50s and on the bench (in other words, his nomination and confirmation were based upon the presumption that Seay was a regular ol’ white guy). The other Native American federal judge to ever serve on the bench was Billy Burrage, also in Oklahoma, who was nominated to the bench by President Bill Clinton in 1994. He resigned in 2001. To give you a frame of reference, there have been (just) 170 black federal judges in the nation’s history.

NYTs: Federal Appeals Courts Pushed to the Right by Bush

Matthew L.M. Fletcher1 Comment

From the NYTs:

WASHINGTON — After a group of doctors challenged a South Dakota law forcing them to inform women that abortions “terminate the life of a whole, separate, unique living human being” — using exactly that language — President Bush’s appointees to the federal appeals courts took control.

A federal trial judge, stating that whether a fetus is human life is a matter of debate, had blocked the state from enforcing the 2005 law as a likely violation of doctors’ First Amendment rights. And an appeals court panel had upheld the injunction.

But this past June, the full United States Court of Appeals for the Eighth Circuit voted 7 to 4 to overrule those decisions and allow the statute to take immediate effect. The majority argued that it is objectively true that human life begins at conception, and that the state can force doctors to say so.

Mr. Bush had appointed six of the seven judges in the conservative majority. His administration has transformed the nation’s federal appeals courts, advancing a conservative legal revolution that began nearly three decades ago under President Ronald Reagan.

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Jeffrey Rosen on a “Judicial Apocalypse” if McCain Elected

Matthew L.M. Fletcher

From the New Republic:

During every presidential campaign for the last two decades, liberals have predicted an apocalypse in the Supreme Court. In their dire visions, as many as four justices are always about to retire, meaning that a Republican victory would turn the court radically to the right and lead to the certain overturning of Roe v. Wade.

In each of the past three elections, of course, these hyperbolic predictions have turned out to be wrong. Since 1996, Roe has been supported by a comfortable 6-3 majority, and the Court, controlled by two relatively moderate swing justices, Sandra Day O’Connor and now Anthony Kennedy, has remained fairly centrist. All of this had led some Court-watchers, including me, to conclude that the stakes for the Court in most presidential elections are less dire than many liberals fear.

Not this time. This year, for the first time since the New Deal era, a single election really does have the power to transform the Court–at the very moment that voters, rightly concerned about the tanking economy and the war in Iraq, are looking the other way. Given the fact that the older justices are liberal rather than conservative–and that the oldest, John Paul Stevens, is 88–it’s hard to deny that nominations by John McCain would change the Court far more dramatically than those by Barack Obama. An Obama victory would maintain the current balance of the Court, while a McCain Court could create a solid conservative majority.

What’s at stake is not only Roe v. Wade, but issues directly tied to the current concerns of the public: among them, Congress’s power to regulate the economy as well as limits on the president’s power to act unilaterally in the war on terrorism. Although McCain claims to favor justices who will defer to the political branches, the most likely Republican nominees are hardly consistent advocates of judicial deference. Voters who are hoping McCain will nominate relatively moderate judicial mavericks should think again.

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