Last week, a federal judge appointed by President Bill Clinton, Judge Susan Bolton, blocked the enforcement of Arizona Senate Bill 1070, which was passed in an effort to control the flow of illegal immigrants into Arizona. In order to do that Judge Bolton gave a reading of the law and the evidence that the parties presented that fails to meet one of the fundamental principles of statutory interpretation: The court should give effect to each of the words of a statute if possible. Section 1373(c) of Title 8, U.S. Code, …
Do the nation’s trial lawyers deserve a taxpayer bailout? That’s what they’re after: a special-interest tax break of $1.6 billion. In fact, after Congress refused to consider giving them that break, they are now trying to get it from the Treasury Department. In order to bestow that gift, though, the Treasury Department would have to reverse the view it took back in the Clinton Administration (which, incidentally, was not known for its hostility to the trial lawyers) and change its 1997 ruling without any intervening change in the underlying facts …
In last week’s hearings to determine whether former Harvard Law School dean Elena Kagan should be a justice of the U.S. Supreme Court, a number of liberal Senators criticized the Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co. as the work of “conservative activists.” In Ledbetter, the Court reaffirmed that the 180-day time period – a period that Congress itself established – for bringing a charge of discrimination under Title VII of the Civil Rights Act is triggered when the alleged act of unlawful discrimination takes …
In her questioning of Elena Kagan yesterday, Sen. Dianne Feinstein (D-CA) asked about the degree to which courts should defer to agency constructions of statutes, pointing to a 2006 Supreme Court decision regarding the Clean Water Act (CWA) that left intermittent seasonal streams unprotected. Kagan told Senator Feinstein she did not know of the specific decision and, instead, explained the general principles of judicial deference to agency constructions of statutes passed by Congress. In doing so, she correctly referred to the Court’s decision in Chevron U.S.A., Inc. v. Natural Resources …
Elena Kagan is a notably opaque Supreme Court nominee. In order to perform their constitutional function, the members of the Senate will have to reach a conclusion about her views and whether they are in the mainstream. Certain of the documents that she has generated give clues that lead to disturbing answers. One such document is her 1987 memorandum to Supreme Court Justice Thurgood Marshall regarding the petition for certiorari in Pughsley v. O’Leary, written while she was one of his clerks. In that memo, Kagan demonstrates how far out of the …
The argument that constitutionalists should not object if President Obama replaces a liberal justice with another liberal (for 30 more years?) is absurd for several reasons, including that such simple political labels don’t fit what most judges do. More to the point, while Justice Stevens’s decisions frequently disappointed those who understand that the original meaning of the Constitution is the only legitimate guide to its interpretation, there are some areas of law in which Justice Stevens departed from the more predictably activist views of Justices Brennan, Marshall, Souter and Ginsburg. …
At its Executive Business Meeting on February 4, 2010, the Senate Judiciary Committee sent the nominations of Edward Chen, Louis Butler, Mary Smith, and Christopher Schroeder to the floor for consideration by the Senate. President Obama resubmitted those nominations in January after the Senate adjourned in December without acting on them. Chen, who has been nominated for a judgeship in the Northern District of California, was sent forward on a party line 12-7 vote. After three years in private practice, he worked as a staff attorney for the American Civil …
In a letter to House Speaker Nancy Pelosi (D-CA) and Senate Majority Leader Harry Reid (D-NV), dated December 30, 2009, the Attorneys General of 13 States have objected to the so-called Nebraska Compromise that reportedly won the crucial support of Senator Ben Nelson (D-NE) for the Senate health care takeover bill. The deal is said to involve an agreement that the Federal Government’s taxpayers will assume indefinitely the full share of the costs that Nebraska will incur as the result of the expansion of Medicaid that is one of the …
