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Bar Watch Bulletin June 2004

Judicial Confirmations, International Law
June 01, 2004

--ABA President Dennis Archer, in remarks to the Sixth Circuit Court of Appeals Open Judicial Conference in Louisville, commented upon a number of controversial legal subjects, including judicial confirmations and recent Congressional legislation concerning the judicial branch. Some of his remarks focused on issues the ABA had been lobbying Congress in recent months. We thought you'd be interested in some of his remarks and the ABA's positions on some of the issues addressed:

Judicial Confirmations: Dennis Archer reiterated the non-ideological nature of the ABA Standing Committee on the Federal Judiciary's judicial vetting process. Although the Committee no longer receives the names of nominees in advance of their public nomination, Archer declared that the ABA is still proud of its role in evaluating nominees.

On the subject of the judicial confirmations impasse in recent years, Archer noted that a "withering of bipartisan cooperation on the process of nominating and confirming federal judges" has existed since the 104th Congress, which has led to increased partisanship in the process. However, he noted that the vacancy rate of 4.5% on the federal bench is the lowest rate in over a decade. Archer did not mention the filibustering of judges in his remarks.

Later, in a panel discussion with Kentucky Senator Mitch McConnell, Archer took issue with the Senator's criticism of Democratic Senators who had held up the judicial confirmations process. McConnell was particularly critical of Michigan Senators Carl Levin and Debbie Stabenow for holding up Sixth Circuit nominees. Archer noted that former Michigan Senator Spencer Abraham had prevented votes on two of President Clinton's Sixth Circuit nominees, and that the overall vacancy rate was low.

Judicial Independence: Archer claimed friction between lawmakers and judges was undermining judicial independence and was eroding public confidence in the courts. He stated: "Unfortunately, for several years now, we have witnessed a disturbing trend toward increasing intrusion by the legislative branch into the constitutional role of the courts, which threatens to erode the independence of the judiciary…Starting in the mid-nineties, certain judicial decisions in involving controversial and divisive social issues of the moment caused some members of Congress to castigate the judges who authored them and label those judges as 'activists.'"

Archer sharply criticized proposed legislation which served "to strip certain controversial issues from the federal courts or to curtail remedies available to federal courts in cases involving constitutional rights for the purpose of changing constitutional law." He declared: "The ABA steadfastly opposes these "court stripping" bills, along with other legislative initiatives that infringe upon the separation of powers between Congress and the courts."

In particular, Archer singled out three examples of this phenomenon. The first example was a resolution introduced in the House (H.Res.568) which would affirm that judicial decisions should not be based on any foreign laws, court decisions or pronouncements of foreign governments that have not been expressly approved by Congress. According to Archer, "The sponsor said the resolution is necessary because the Supreme Court, increasingly cites foreign authorities in its opinions. In fact, the resolution itself states that the court inappropriately relied on foreign authorities in Lawrence v. Texas, the Texas sodomy case. The resolution has not passed and, of course, would be non-binding even if passed. Nevertheless, it does seek to intrude on the independence of a coequal branch of government and to exert a chilling effect on the decisional independence of our Federal judges."

In April, the ABA sent a letter to Representative Steve Chabot, the Chairman of the Subcommittee on the Constitution, criticizing H.Res. 568. The letter stated that the central issue of the resolution-"the appropriate use of foreign sources by our federal courts-was "an evolving issue" and thus further debate and discussion was needed to create a consensus.

Archer also criticized the "Feeney Amendment," which concerns sentencing guidelines. While he concedes such an amendment is "within Congress's legitimate oversight responsibilities," he stated: "We are genuinely concerned about the lack of prior consultation with the judiciary and failure to use less unilateral means to resolve the perceived problems it is designed to remedy."

A third example concerns the proposed splitting of the Ninth Circuit U.S. Court of Appeals. The Ninth Circuit is the largest of the thirteen circuits, serving over 50 million people in nine states with a yearly caseload of over 9,000 new cases. Legislation has been offered in both the House and Senate to split the circuit into two or three smaller circuits. Archer acknowledged that "Congress has the authority-indeed the responsibility-to make certain that federal courts are organized so as to ensure the effective and efficient administration of justice for all our citizens." However, Archer contended that "is not the stated goal of some members of Congress. That Circuit's decision in Newdow v. U.S. Congress, in particular, angered some Congressional members who pledged to dilute the Circuit's "liberal bent" by splitting it. The ABA has, on several occasions, studied the need for splitting the Ninth Judicial Circuit and each time has concluded that there is no compelling evidence of dysfunction to support the need for Circuit restructuring."

In April, the ABA submitted a letter to Democratic Senator Dianne Feinstein, a member of the Senate Judiciary Committee. In the letter, the ABA expressed its surprise that the Senate Judiciary Subcommittee on Administrative Oversight and the Courts would hold a hearing on S. 2278, offered by Senator John Ensign. The ABA opposes this bill, contending "the Ninth Circuit is functioning well as presently structured…as there is no justification for, nor overall benefit to be derived from, dividing the Ninth Circuit." Patricia Lee Refo, the Chair of the ABA's Section of Litigation, submitted testimony to Congress to reiterate the ABA's position. She stated that there is no proof that splitting the circuit would bring "any meaningful benefits to anyone."

In late May, ABA President-Elect Robert Grey voiced his opposition to splitting the Ninth Circuit in a speech to the Beverly Hills Bar Association. He maintains that there is "no justification" for splitting the circuit.

--ABA President Dennis Archer issued a statement in support of the recent U.S. Supreme Court decision Tennessee v. Lane, an ADA case. Archer stated: "By opening the courthouse door to persons with disabilities, the Supreme Court has helped to ensure public confidence in the administration of justice. For too long, persons with disabilities in this country have faced exclusion from the justice system because they were denied access to the courts. Protecting the rights of the disabled to secure access to the courts moves the country a giant step toward making the promise of our Constitution a reality for all our citizens." The ABA had filed an amicus brief in this case in support of the plaintiffs.

--Archer also spoke out on the anniversary of Brown v. Board of Education. He stated that the decision "is best understood as a work in progress." He went on to affirm, "We can be proud of the progress our society has made while recognizing that we have not yet arrived, that fifty years is too brief a span to undo centuries of deliberate subjugation of withholding civil liberties based on cultural or racial heritage." However, "it is only because of Brown that we now assume that equal access and treatment are our birthright. Today's students expect racial equality in all walks of life with a casualness that, prior to Brown, would not have been imaginable. By raising our expectations, Brown has lifted the bar, measuring success that much higher." Archer delivered these remarks at an anniversary celebration at Harvard.