Grassley deserves "A" for creativity, "F" for content on "pre-emptive filibuster" of D.C. Circuit nominees

Sen. Charles Grassley (R-Iowa) deserves “an ‘A’ for creativity but an ‘F’ for content” for his scheme to obstruct future nominees to the nation’s second most important court, Alliance for Justice President Nan Aron said Thursday.

Aron was referring to Grassley’s plan to eliminate three of the four vacant judgeships on the United States Circuit Court of Appeals for the District of Columbia Circuit, a plan he raised again at a Senate Judiciary Committee meeting Thursday.

During that meeting, the committee voted in favor of president Obama’s nomination of Sri Srinivasan to fill one of four vacancies on the 11-judge court.  “But don’t be fooled: Today’s vote by no means shows Republicans’ willingness to stop playing games with the president’s nominees.  During the same meeting, Grassley announced what amounts to a ‘pre-emptive filibuster,' declaring his intent to eliminate the other three vacancies on the D.C. Circuit, effectively blocking any nominees to those seats,” Aron said.

Grassley cited what he claimed is a light workload for the court, based solely on the number of cases handled by each judge.  “That claim is as nonsensical as it is hypocritical,” Aron said.

Patricia Wald

“As the court’s former Chief Judge, Patricia Wald, has written, ‘The D.C. Circuit hears the most complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary Americans’ lives . . . . These cases can require thousands of hours of preparation by the judges, often consuming days of argument, involving hundreds of parties and interveners, and necessitating dozens of briefs and thousands of pages of record – all of which culminates in lengthy, technically intricate legal opinions.’”

Aron also noted that “less than a week ago, at another meeting of the same committee, Sen. Grassley’s close Republican ally, Sen. Jeff Sessions said it was wrong to measure caseload by raw numbers without factoring in complexity.

“The hypocrisy is clear when one looks at Sen. Grassley’s own record.  When the caseload on the court was lighter than it is now, Sen. Grassley supported President George W. Bush’s nominees to fill all eleven seats on the court.

“The current majority on the D.C. Circuit has used its power to issue decisions undermining protections for workers, consumers, and the environment that affect all Americans,” Aron said. “Sen. Grassley and his allies are using every trick in the book to try to keep it that way.”

“If the Republican obsession with obstruction persists,” Aron said, “then the Senate majority must reform Senate rules to allow the will of the majority of Americans to prevail.”

Read more about the D.C. Circuit 
Read more about Grassley’s plan 

Republicans turn Senate rules, traditions into weapons of mass obstruction

Republican obstruction of the president’s nominees on the Senate floor through use of (often silent) filibusters has been well-documented, but in the past two days the public has seen what those of us working on judicial nominees have known for far too long – the obstruction is often just as bad at the committee level.

Gina McCarthy

Just one day after using an arcane procedural maneuver to delay a committee vote on the nomination of Tom Perez to serve as Secretary of Labor, Senate Republicans have used another underhanded ploy to delay a committee vote on the nomination of Gina McCarthy to lead the Environmental Protection Agency.  They boycotted a meeting of the Senate Committee on Environment and Public Works to prevent the Committee from even holding a vote.  Committee Republicans could hardly argue they lacked sufficient information to form an opinion on McCarthy – she answered more than 1,000 questions from committee members.

On one level this behavior is understandable.  To Senate Republicans, one of the only things as bad as a Labor Secretary who will protect working people is an Environmental Protection Agency administrator who will protect the environment.  But the brazen nature of these committee delay tactics is shocking nonetheless.

Unfortunately, in the context of judicial nominations, such committee delays have become commonplace – and start even earlier in the process.  By committee tradition,* the Senate Judiciary Committee typically won’t hold a hearing on a judicial nominee unless both home-state senators agree to allow the nomination to move forward.    Like any such tradition, it works only as long as it is not exploited.  But that is exactly what Senate Republicans are doing now.

That means some judicial nominees are stuck in limbo waiting for Judiciary Committee hearings months or years after they were nominated.  In many more cases, the White House – reluctant to impose that fate on nominees – is left waiting in vain for Republican home-state senators to help identify acceptable candidates.

And, coming full circle, hanging over all of this obstruction at the committee level (and sometimes before) is the knowledge that even if nominees survive those obstacles, they face the specter of the filibuster once they reach the floor.  The events of the past two days make clear, once again, that the weak-kneed agreement on Senate rules reached in January cannot come close to constraining the Republicans’ willingness to turn rules and traditions into weapons of mass obstruction.  The Senate needs to back to the drawing board and enact tough-minded rules reform now.

Read more about obstruction by Senate Republicans:

• In-depth report from The Huffington Post on how Republicans obstruct judicial nominees.
• Our overview of the need for Senate Rules Reform.
• The website of the rules reform coalition Fix The Senate Now.

*-Although this tradition has been in place to some degree for many years, not all Judiciary Committee chairmen have been as generous as the current one in waiting for both home-state senators to indicate assent before holding a hearing.

AFJ Scholarship: Ashcroft v. Iqbal and government officials’ legal accountability to victims of human rights abuses

By Peter Laumann
AFJ Dorot Fellow

Javaid Iqbal was one of hundreds of Muslim Americans rounded up – with no accusation or evidence of wrongdoing – as part of the Bush Administration’s response to the events of September 11, 2001. His case ultimately reached the Supreme Court, which by a 5-4 vote in Ashcroft v. Iqbal rewrote the rules of civil procedure and made it more difficult for all federal plaintiffs to have their claims heard in court.

This aspect of Iqbal has been widely examined and lambasted by civil procedure experts, who criticize the Court for sweeping away decades of pleading law and for improperly exceeding its authority in essentially reconstructing the Rules Enabling Act. The REA sets forth the procedural rules that apply to all litigation in federal court, and can only be changed through congressional legislation.

However, another aspect of the Iqbal ruling that has received less attention is the case’s implications for government officials’ accountability for human rights abuses and war crimes. My recently published article in the University of Pennsylvania Journal of Law and Social Change addresses this issue, which is particularly relevant in the aftermath of the Supreme Court’s ruling in Kiobel v. Royal Dutch Petroleum (AFJ’s response to the Kiobel decision is here.)

In my article, I argue that the Supreme Court majority’s opinion maintaining that supervisory liability does not apply in lawsuits against federal government officials alleging violations of federal constitutional or statutory rights is inconsistent with the United States’ obligations under binding human rights law, and any contrary language in Iqbal cannot have any force in such cases. Because Iqbal’s language cannot apply as broadly as it appears, I conclude:

The Supreme Court has decided, in very limited circumstances, to bar particular claims against federal officials for largely procedural reasons, such as the failure to adequately plead or a failure to overcome the qualified immunity requirement of a clearly established federal right. These barriers would not exist in the context of a clear human rights violation, such as obvious torture or impermissible detention. The regime of quasi-absolute human rights immunity for high-level government officials is the product of lower federal courts crafting new law beyond what the Supreme Court or statutory law had previously recognized.

Alliance for Justice has long advocated that government officials who have violated our constitutional and human rights obligations must be held accountable for their actions. Our documentaries Quiet Revolution  and Tortured Law explore the ways in which conservatives reshaped our legal system to deny justice to victims of civil and human rights abuses.

The article, Ashcroft v. Iqbal and Binding International Law: Command Responsibility in the Context of War Crimes and Human Rights Abuses, is available in Volume 16 of the University of Pennsylvania Journal of Law and Social Change, 16 U. Pa. J.L. & Soc. Change 181.

AFJ blasts "give them an inch and they take a mile" Republicans on Perez nomination

Alliance for Justice President Nan Aron issued the following statement in response to today’s postponement of a vote by the Senate Committee on Health, Education, Labor and Pensions on the nomination of Tom Perez to be Secretary of Labor:

Tom Perez

The “give them an inch and they take a mile” Senate Republicans, after being given the courtesy of a two-week delay on Tom Perez’s committee vote to serve as Secretary of Labor, today invoked an arcane procedural maneuver to delay that vote for yet another week.

As he has throughout his career, as labor secretary Tom Perez will stand up for the rights of working people.  For Senate Republicans that’s exactly the problem.  So Perez has become the latest target of a never-ending Republican campaign of fear, smear and obstruction.

The delays must stop here.  It’s time to confirm Tom Perez and give working Americans the champion they deserve.

Read more about Tom Perez at www.confirmperez.org

Arbitration Fairness Act would reopen courthouse doors for millions of Americans

AFJ released this statement today on the reintroduction of the Arbitration Fairness Act:

Coast Guard delivers supplies to the
"cruise from hell"

Federal legislation introduced on May 7 to ban the increasingly common practice of forced arbitration “is urgently needed to reopen the courthouse doors to millions of Americans,” according to Alliance for Justice President Nan Aron.

Aron commended Sen. Al Franken (D-Minn.) and Rep. Hank Johnson (D-Ga.) for reintroducing the Arbitration Fairness Act, which restores Americans’ rights to have their day in court. Those rights have been undermined by the increasing use of forced arbitration and a series of recent Supreme Court decisions, most notably AT&T Mobility v. Concepcion.

“From cell phone purchases to nursing home agreements, to gaining employment, consumers and employees are being forced to accept arbitration clauses – and to potentially cede their civil and labor rights – in every aspect of their lives.

Sen. Al Franken

Rep. Hank Johnson

“For example, anyone who saw the pictures of conditions aboard the Carnival Cruise ship Triumph after it was disabled by a fire knows why it was dubbed ‘the cruise from hell,’” Aron said.  “But those passengers may have a hard time suing.  When they bought their tickets, there was a forced arbitration clause in the fine print.”

Under forced arbitration, consumers who buy defective products or are overcharged for a service are barred from taking their cases to court.  Instead, they must use a private arbitration firm chosen and paid for by the business itself.  Forced arbitration clauses also often ban class-action suits, which allow individuals to band together to bring their common claims.

In addition to Carnival, the photo sharing service Instagram uses forced arbitration – and some fear Instagram’s parent company, Facebook, may be next.  The practice is also spreading to employment contracts, threatening to make it nearly impossible for workers to sue over race, sex or age discrimination.

“Having a dispute settled by arbitration is like playing a baseball game in which the other team hires, fires – and pays – the umpires,” Aron said.  She noted that a study of top arbitrators for one major arbitration firm found that they rule for the corporations that hire them 93.8 percent of the time.

“The forced arbitration system gives corporations a free pass to break the law,” Aron said.  “The Arbitration Fairness Act would revoke that free pass.”

Read more about forced arbitration

● An overview of forced arbitration 
● AFJ’s report Arbitration Activism
● AFJ reports on AT&T Mobility v. Concepcion
● Press release from Rep. Johnson
● Press release from Sen. Franken
● Letter of support from AFJ and more than 40 other organizations