The Federalist Society

Bar Watch Bulletin August 7, 2005

Judicial Independence, 2004 Election, Death Penalty, Supreme Court

August 7, 2005

The ABA meeting in Chicago, Illinois included several panel discussions, highlights of which we report on below:

Panel Discussion on Congress and Judicial Independence

Moderator Professor Judith Resnik (Yale Law School) opened the ABA's third dialogue on the subject of the interplay between Congress and the Federal Judiciary by noting that the theme of judicial independence is nothing new. To ascertain just how rocky is the current state of judicial independence, Resnik asked members of the panel to describe where we are now.

Professor Charles G. Geyh (Indiana University School of Law) explained that "attacks on the courts have come and gone," but what is different about the current state of affairs is that both sides of the aisle are pointing fingers at each other. By framing the debate in terms of politics, "both sides [in Congress] are saying: Law is largely irrelevant!"

To Linda Greenhouse, the unusual aspect of the current situation was that "the country at large largely agrees with what the [Supreme] Court is doing."

Chief Judge of the United States Court of Appeals for the Sixth Circuit Danny J. Boggs welcomed criticism of the courts, but explained that some of it might be inappropriately placed. As an example, he referred to Congressman Sensenbrenner's criticism of a recent sentencing opinion written by Judge Frank Easterbrook.

In response to Resnik's question about where the Schiavo controversy fits into the dialogue on judicial independence, Western Regional Director of People for the American Way Jeff Berman blamed the "housification of the Senate" for what happened, because we now have many former Representatives are serving as Senators.

Panel on Lawyers and the 2004 Presidential Election

Judy Browne, with the Advancement Project in Washington, D.C., opened by stating that "citizens' voting rights are deprived before the voting process actually begins." She believed that registration problems were the biggest source of concern in 2004.

Entertainment lawyer Monica Youn, who did volunteer work during the 2004 election, added that three million votes were lost in 2000, most of which affected low income areas. Yet one of the biggest problems she faced was trying to find individual plaintiffs to represent in litigation against state and county election officials.

Robert Rubin of the Lawyers Committee for Civil Rights of the San Francisco Bay Area found that one of the biggest problems with the election process in 2004 was the presence of "challengers, or goons at voting places." He alleged brazen voter suppression across the state of Ohio. He stated that there must be quality voting machines that quickly ascertain voter intent, and that the Voting Rights Act must be re-authorized.

Jonah Goldman of the Lawyers' Committee for Civil Rights Under Law declared that the election process is a completely flawed system.

Panel Discussion on the Death Penalty

There was more disagreement on this panel than on any other weekend panel we covered. Moderator Linda Greenhouse, Supreme Court correspondent for the New York Times, asserted that there is a lessening of political will to carry out the death penalty. Furthermore, Greenhouse said that changing judicial attitudes exist on the "relatively conservative Court."

Richard Devine, State's Attorney for Cook County, Illinois, which includes Chicago, spoke about the current state of limbo of capital punishment in Illinois. "I think we are in something of a schizophrenic state," he said when describing the adjudication of current cases. He said that a good trial judge, however, could control many of the problems that become grounds for appeal.

Next, Michael Waller, State's Attorney for Lake County, Illinois, stated that people in his county possess an ambivalent attitude regarding capital punishment. He said that if people do not want the death penalty, though, the legislature should repeal it.

Christina Swarns, Director of the Criminal Justice Project of the NAACP Legal Defense & Education Fund, discussed ineffective counsel, noting the increasing prominence of this issue. Waller stated that defenders' competence is the most important change that we have seen in terms of capital crime adjudication, but he asserted that most defenders are quite good.

On jury selection, Swarns said it was "not unusual" to see high strike rates of African American jurors. Both prosecutors disagreed with her. Devine stated that a number of real life restrictions exist to prevent discrimination.


Supreme Court Review

Ken Starr was one of three panelists at the ABA convention's Supreme Court Review. He was joined by Yale Professor Drew Days and Susan Bandes of Chicago Law School. The panel summarized and commented on the biggest cases to face the Supreme Court this year. "The conservative majority held together on only five of the twenty-five major cases," said Prof. Days. The panel seemed in agreement with Starr that the explanation for this could be found in the ascendancy of John Paul Stevens.

The panel reviewed Graholm v. Heald, the wine shipping case, noting that the implied power of the Commerce Clause now trumps the explicit text of the 21st Amendment.

The panel then reviewed Raich v. Ashcroft, the Court's ruling against medical marijuana, characterized by Judge Starr as another tremendous blow to federalism. The ruling further hurts the cause of judicial restraint by rendering activity illegal that the majority of the people in several states have voted to make legal.

The panel discussed MGM v. Grokster, in which the Court unanimously ruled that peer-to-peer file sharing networks were liable for illegal transfers of files using their software. Starr commented with a smile that Grokster had already rewritten its software to take into account the Court's ruling.

Finally, the panel came to Kelo v. The City of New London, where the Court held that private property could be taken by a public body and given to another private entity in order to make an area more economically viable. Thus the phrase "public use" in the Takings Clause of the Fifth Amendment was given a very broad interpretation.


Panel Discussion on the Global War on Terror, the Bill of Rights and International Law

Barry Sullivan (Partner, Jenner & Block) opened this ten-person panel. Professor Geoffrey R. Stone, University of Chicago Law School, stated that, historically, "we [in the United States] have not only restricted civil liberties . . . we have done so in an . . . excessive manner." Examples abound: The Alien and Sedition Acts of 1798; Lincoln's suspension of habeas corpus during the Civil War; Wilson's Espionage and Sedition Acts of 1917 and 1918; and the Japanese internment during World War II.

Giuseppe Bisconti (Studio Legale Bisconti) predicted that it might take a generation to contain current terrorism. We have to be aware that "our enemy is aiming at destroying us." But, in choosing our weapons to fight back, we should remember the concomitant risk of political suicide.

According to General Counsel of the Bar of England and Wales Guy Mansfield, the important aspect of fighting terrorism is "respond[ing] in a measured way." In the long run, anger is not effective. Mansfield sees the current war on terror as a "struggle for our beliefs."

Professor Ruth Wedgwood, John Hopkins University, explained that the Supreme Court is a human institution that responds to problems in human ways. The Court's decisions in Hamdi and Padilla were examples of human responses. Elisa C. Massimino, Director in the Washington Office of Human Rights First, was troubled by the impact of post-9/11 policies on the structure of our democracy. Referring to the proposed McCain/Graham amendments, she praised Republican-led efforts in Congress.

Sullivan wondered whether "war on terror" was a rhetorical excess, just like "war on drugs" and "war on poverty." Not according to Suzanne Spaulding, who is Managing Director of the Harbour Group. The battlefield is wherever terrorists are. She presented a hypothetical. If the military shows up on the streets in the United States in order to track down terrorists, the administration will not view it as an exception to posse comitatus. Rather, it will view it as an appropriate military action.

Professor John Norton Moore, University of Virginia School of Law, reminded the audience that "adhering to the rule of law is a tough problem . . . . But it is our responsibility." Moore sees the legal profession as a "keeper of the rule of law."

Dean Harold Hongju Koh's (Yale Law School) remarks focused on examining the costs and benefits of the post-9/11 foreign policy of the United States. Koh listed many costs, expressed in terms of monetary expenses, lost human lives, reduced U.S. popularity abroad, loosened due process guarantees, etc. Without naming the benefits, Koh did not think the costs were justified.

M. Cherif Bassiouni, President of International Human Rights Institute (DePaul University College of Law), asserted that the administration uses "terrorism" as a buzzword and hopes to condition the public to accept U.S. foreign policy as an appropriate reaction.

15th Annual Margaret Brent Awards

The ABA Commission on Women in the Profession held its 15th Annual Margaret Brent Awards Luncheon Sunday afternoon. Recipients included Senator Hillary Clinton, Former Assistant Attorney General Loretta Argrett, Mary Cranston, Director of the law firm of Pillsbury Winthrop, Fifth Circuit Judge Carolyn King, women's legal rights activist Judith Lichtman, and Illinois State Supreme Court Chief Justice Mary Ann McMorrow.

In her address to the large crowd, Ms. Lichtman declared that a U.S. Supreme Court nominee must "answer the questions that are posed before them." They must also confirm that they will "judge cases fairly and without a political agenda." She added, "they must also acknowledge the importance of precedent and only those who have an unwavering commitment to individual liberty deserve a seat on the nation's highest Court."

Senator Clinton, in her speech, said that "reinvigorating our commitment to our basic ideals is one of the most important issues before the U.S. legal system. However, she contended that "there are very different views of how our Constitution should be interpreted."


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