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Fulfilling the Progressive Promise of the Constitution's Text & History        October 2010
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OPENING STATEMENT



Doug Kendall
President, CAC

September was a happy and momentous month in the development of Constitutional Accountability Center as we added five terrifically talented new staff members, two of them filling entirely new positions - Press Secretary and Litigation and Policy Counsel.  These new hires grow our staff to nine strong and will dramatically increase our ability to generate scholarship, win cases and get the message out about the progressive promise of the Constitution's text and history.  We welcome Doug Pennington, our Press Secretary, Neil Weare, our Litigation and Policy Counsel, Brooke Obie, our Online Communications Director, Amy Bruton, our Office Manager, and Madeleine Rosenberg, our Research Fellow.  You'll be hearing more about their work in the months to come and can read all about their terrific qualifications on our website.
 
As detailed in this newsletter, this influx of talent has already allowed us to ramp up our work in a number of critical areas.  We are fighting on the side of the Obama Administration in the lawsuit it brought challenging Arizona S.B. 1070, the controversial law that seeks to supplant the federal government in enforcing immigration laws in Arizona.  We've already filed one brief in a case to be heard during the Supreme Court's new Term, Williamson v. Mazda Motor of America, Inc.,and we are about to file in a second case, AT&T v. Concepcion.   And we have been working hard to highlight and counter a blockade of Obama judicial nominees in the United States Senate. 
 
With the Supreme Court opening its Term this week, and with significant legal challenges, like the challenge to S.B. 1070, working their way through the court system, things will be busy this fall at Constitutional Accountability Center.  Happily, we will meet these challenges with new capabilities and additional energy.

Until next month,


Doug


CAC in the Media

CAC Update: Protecting the Constitutional Rights of Immigrants and their Children

As attacks on immigrants and their children grow more vicious, Constitutional Accountability Center continues to promote and defend the Constitution's mandate for a fair and inclusive immigration policy in this country.  CAC stepped up its efforts last week by filing a brief in support of the United States in its lawsuit against Arizona's controversial anti-immigration law, S.B. 1070, which seeks to supplant the federal government in enforcing immigration laws in Arizona.

In July, the Department of Justice won a key victory in the case when U.S. District Judge Susan R. Bolton struck down the most controversial portions of S.B. 1070 just a day before they were to take effect. Arizona has since appealed to the U.S. Court of Appeals for the Ninth Circuit. CAC's brief to the Ninth Circuit explains why the Constitution's text -- particularly, the grant of power to Congress "to establish a uniform Rule of Naturalization...throughout the United States" -- and the Constitution's history support preemption of Arizona's law. Furthermore, we argue that because the 14th Amendment made national citizenship primary over state citizenship, it even more firmly established the role of the federal government as the source of immigration laws and protection of immigrants' rights.

Our hope is to garner the same success that CAC helped produce in Padilla v. Kentucky, a  very important Supreme Court victory for immigrants' constitutional rights.   In that case, which involved a longtime legal alien resident of the United States who faced deportation as the result of following erroneous advice from a criminal defense attorney, CAC filed a brief before the Supreme Court discussing in detail the constitutional requirement of  robust due process protections for citizens and noncitizens alike. The Due Process Clause of the 14th Amendment, through which the Sixth Amendment right to assistance of counsel in criminal proceedings is applied in state courts, guarantees effective assistance of counsel whenever a person -- citizen or not -- stands accused of a crime. Inspiringly, and as our brief recounted, the framers of the 14th Amendment sought to ensure that "no man, no matter what his color, no matter beneath what sky he may have been born . . . shall be deprived of life, liberty, or property without due process of law."  The Supreme Court agreed with our analysis, and held that a lawyer has a constitutional obligation under the Sixth Amendment to inform an alien charged with a crime that a guilty plea could result in deportation.  While the Court's ruling in Padilla did not garner huge headlines, it is having a big impact in lower courts, with one commentator stating that it "may be the most important 'right to counsel' case since Gideon v. Wainwright."

Please be sure to visit  CAC's blog, Text & History, for updates on the Arizona lawsuit and our continuing efforts to protect immigrants' constitutional rights. 


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CAC Calls for Action as Senators Continue Unprecedented Obstruction of Judicial Nominees

As CAC has documented for more than a year, Senate Minority Leader Mitch McConnell (R-KY) has been leading an unprecedented blockade of President Obama's judicial nominees, delaying or denying up-or-down votes on the Senate floor even to uncontroversial nominees.  As a result, there are now more than 100 vacancies on the federal courts nationwide -- almost 1 in 8 judgeships -- nearly half of them identified by the judiciary itself as "judicial emergencies."  Nonetheless, the Senate skipped town last week for a recess until mid-November without acting on any of the 23 judicial nominees who have been favorably reported out of the Judiciary Committee but are still waiting for a vote on the Senate floor.  Many of those nominees have the support of their Republican home state senators, and 16 of them faced no opposition whatsoever in Committee.

With the judicial vacancy crisis growing and justice being delayed for hardworking Americans around the country, CAC has ramped up the pressure on the Senate to cease the obstruction and give the President's well-qualified nominees an up-or-down vote.  

For example, in a recent op-ed by CAC President Doug Kendall published in  The Salt Lake Tribune, Doug focused on the nomination of  Scott Matheson, Jr., to the Tenth Circuit, whose confirmation vote has long been delayed even though Matheson has the support of Utah's Republican Senators, Orrin Hatch and Bob Bennett.  Doug also appeared recently on Fox News (watch here), calling for an end to the obstruction. 

And with court-watchers expected to turn their attention to the Supreme Court as it begins a new Term this week, CAC Vice President Judith Schaeffer urged in a blog post featured on The Huffington Post that the vacancy crisis on the lower courts must not be forgotten.  In its October 2009 Term, the Supreme Court issued 92 opinions, while the District Courts disposed of nearly 340,000 cases in 2009, and the Circuit Courts disposed of approximately 60,500 appeals that same year, making the lower federal courts truly the courts of last resort for most Americans.  With so many vacancies on those courts, and as Judith concluded in her post, "every constitutional stakeholder in the process must make [filling those vacancies]  a priority."

CAC will continue to work hard to encourage the Obama Administration to name well-qualified nominees for every vacancy for which no nomination is pending, and to press the Senate to give those nominees prompt consideration.  Nothing less than justice is at stake.


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Justice Scalia's Originalist Sins

Supreme Court Justice Antonin Scalia has often chastised his colleagues for not sticking to the text of the Constitution - as he views it.  Yet, while speaking at the U.C. Hastings College of Law recently, Justice Scalia completely ignored the Constitution's text to claim that the Fourteenth Amendment does not prohibit the states from engaging in gender discrimination.

In a blog post on Text & History entitled "Justice Scalia's Originalist Sins," CAC's David Gans rebutted Justice Scalia's remarkable claim, demonstrating that the text and history of the Equal Protection Clause guarantee equality for all, including women. David also explained why  the text and history of the Nineteenth Amendment eradicate any possible approval of sex discrimination by the states found in the Fourteenth Amendment. 

David further noted that Justice Scalia's new argument that women are not guaranteed  equal rights under the Constitution is completely inconsistent with his past arguments regarding the Equal Protection Clause when affirmative action is the issue.  As David concludes, Justice Scalia believes in following the text and history of the Constitution -- as long as it supports his pre-existing conclusion.

Watch Stephen Colbert echo many of David's points in this clip from The Colbert Report here.


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Litigation Update

Business cases dominate the Supreme Court's docket so far this Term, and CAC is defending the rights of consumers and the victims of corporate misconduct in two important early-Term cases. 

CAC filed its first brief of the new Supreme Court Term in the beginning of August in an important preemption case, Williamson v. Mazda Motor.  Williamson involves a tragic car accident that killed Thanh Williamson, a 32-year-old woman who was riding in the middle seat of the middle row of a Mazda minivan, where there was a lap-only seat belt.   The tragedy resulted in a lawsuit over whether Mazda's decision to install lap-only (rather than shoulder and lap) seatbelts in that location in the vehicle should subject the company to liability in state court. CAC's brief supports Ms. Williamson's estate, arguing for state remedies that enhance Americans' safety.   As we explain, the text and history of the Constitution's Supremacy Clause -- which makes federal law controlling over state and local laws -- only require preemption when a state law or remedy directly conflicts with federal law, and do not support preemption in this case.  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 states play in protecting the public's health and safety and in ensuring that individuals (or their families) can obtain compensation for injuries (or death) caused by the failure of corporations or persons to meet a state's health and safety standards. 

This week, CAC is also filing a brief in AT&T v. Concepcion, another preemption case, this one seeking to overturn a state court ruling that prohibited AT&T from banning class actions in the fine print of its arbitration agreements with consumers and employees. (A ban on class action lawsuits allows corporations to commit widespread civil harm to consumers and employees with no legal consequences because, individually, the damages are often too small to be pursued.)  Following up on our success in Wyeth v. Levine, an important preemption case from 2009 in which we helped achieve a major victory against unwarranted preemption, CAC's brief demonstrates that AT&T's argument that the Federal Arbitration Act (the federal statute that holds arbitration agreements enforceable) preempts state law is contrary to the both the text of the Act, which specifically preserves a role for state courts, and the text of the Supremacy Clause.  Concepcion should be an easy case for the Court, but in recent years, the Court's conservative Justices have read a "pro-arbitration federal policy" into the Federal Arbitration Act and relied on this purported policy to broadly protect corporations from liability in state and federal courts.  Thus, Concepcion will pit the pro-corporate leanings of the Roberts Court against the Court's commitment to federalism and the rule of law. It will be important to see how this case plays out.

Both Williamson and Concepcion will be argued in November.

CAC has also been busy in the Courts of Appeals. Recently, the en banc Ninth Circuit heard argument in two cases in which CAC participated: City of Goleta v. Guggenheim, a takings case, and Farrakhan v. Gregoire, a challenge to racially discriminatory state felon disenfranchisement laws.  In addition, as discussed in detail above, CAC has also filed a brief in the Ninth Circuit in support of the United States in the challenge to Arizona's anti-immigration law, S.B. 1070.


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Best of the Blogs

Text & History
Blogging about the Progressive Constitution


On The First Monday in October, We Must Not Forget About the Other Federal Courts (Sept. 30)

Senators Must Act Now to get their Home State out of Confirmation Limbo   (Sept. 27)

U.S. Supreme Court Waits in the Wings as 9th Circuit Considers the Constitution, Voting Rights, Race and Criminal Justice (Sept. 22)

 
Constitutional Accountability Center (CAC) is a think tank, law firm, and action center dedicated to fulfilling the progressive promise of our Constitution's text and history.  We work in our courts, through our government, and with legal scholars to preserve the rights and freedoms of all Americans and to protect our judiciary from politics and special interests. For more information on CAC, please visit our website at www.theusconstitution.org, or email Brooke Obie at brooke@theusconsitution.org.