Sunday, October 29, 2017

Teen Immigrant Abused by Anti-Abortion Policy

      The teenaged girl known in court papers as Jane Doe crossed the U.S.-Mexico border into Texas in early September, fleeing an abusive family in her native land in Central America. But Jane escaped one abusive situation only to be abused again, this time by the U.S. government, intent on forcing her to carry an unwanted pregnancy to term despite her constitutional right in the United States to an abortion if she satisfied certain legal standards.
      Apprehended near the border city of Brownsville after her illegal crossing, Jane was held in a federally funded shelter used to detain illegal immigrants. As a would-be refugee, her case fell within the jurisdiction of the Office of Refugee Resettlement (ORR), a unit within the federal Department of Health and Human Services (HHS).
      Scott Lloyd, the Trump-appointed head of the office, brings to the position no training in health or human services but years of experience as an anti-abortion zealot with the Knights of Columbus, the Catholic charitable and humanitarian organization, and a lawyer for a "crisis pregnancy center" in Fort Royal, Va. Lloyd has eagerly taken to enforcing the policy adopted in May that prohibits immigration detention shelters from taking "any action that facilitates an abortion without direction and approval" from him as ORR director.
      Supreme Court decisions extending from Roe v. Wade in 1973 to Whole Women's Health Center in 2015 protect a woman's right to choose an abortion before fetal viability and prohibit the government from imposing any "undue burden" on the woman's exercise of that right. Lock-and-key for a woman held in detention is more than a burden but tantamount to a prohibition.
      Jane's story ends happily for her with a lopsided federal appeals court ruling [Oct. 24] that ordered the government to stop blocking her from going to a medical clinic for the abortion that she had chosen to undergo and to which she had a constitutional right. Jane underwent the procedure the next day as the government. The 6-3 decision by the U.S. Court of Appeals for the District of Columbia Circuit in Garza v. Hargan reversed the earlier, divided ruling by a three-judge panel that had allowed the government to continue to block the abortion even as the risks of the procedure increased with each passing day.
      Jane underwent the procedure the day after the D.C. Circuit's en banc decision and, in a later interview with VICE News, reaffirmed that she felt incapable at age 17 of caring for a child. "I don't feel sure of having a child," she told interviewer Antonia Hylton with her back to the camera and her name still withheld.
      The Trump administration policy directive asserts a government interest in protecting human life, but the government's overriding interest seemingly should be enforcing the law of the land — abortion rights — whatever the political views of what the British like to call "the government of the day." Lloyd's anti-abortion views are a matter of public record, as BuzzFeed News unearthed in a story published as the controversy swirled.
      Writing for the Christian website Ethika Politika in 2011, Lloyd urged state legislators to enact laws requiring a woman to notify the putative father of her decision to abort and to obtain his consent even though Supreme Court decisions clearly prohibit any veto power for a man over the woman's decision. Later, Lloyd recommended that women obtaining government-funded birth control sign a contract promising not to undergo an abortion if the contraceptive failed.
      Lloyd's work with Knights of Columbus entailed advocacy for protecting religious and ethnic minorities victimized by ISIS, the self-styled Islamic State. That experience left him completely insensitive, it appears, to Jane's plight, as a pregnant teenager who had witnessed her parents beat her older sister after having discovered her pregnancy.
      Jane arrived in the United States as "a child . . . alone in a foreign land," as Judge Patricia Millett explained in what amounted to the majority opinion for the six Democratic-appointed judges in the D.C. Circuit majority. Lloyd's version of helping her consisted of allowing her to be taken not to a clinic but to a so-called crisis pregnancy center, where a counselor tried to dissuade her from the planned abortion. "They took me to the clinic," Jane told her interviewer, "and they prayed for me."
      Significantly, Jane's legal team from the American Civil Liberties Union (ACLU) had already convinced a state court judge in Texas that she was mature enough to make the decision to undergo the abortion. The Justice Department attorneys representing HHS in the case stopped short of arguing that Jane had no constitutional right to abortion, merely that the government did not have to "facilitate" the procedure. Millett aptly accused the government of "verbal alchemy" by attempting to "categorically blockade" the abortion.
      Writing for the three Republican-appointed dissenters, Judge Brett Kavanaugh said the decision amounted to "a radical expansion of the Supreme Court's abortion jurisprudence." Separately, Judge Karen Lecroft Henderson argued in a sole dissent that Jane in fact had no constitutional right to abortion since, technically, she had never "entered" the United States. That issue remains open since Jane's case was litigated, under tight deadlines, solely as an individual case. The ACLU lawyers are pursuing a broader class action aimed at invalidating the refugee office's "no facilitating" directive en toto.

Sunday, October 22, 2017

Trump's Lawyer a Poor Fit for Federal Bench

      President Trump has been neck-deep in a swamp of legal troubles, some political and others quite personal, from the very first days of his presidency and even before. Since entering the White House, he and his staff have relied to some extent on legal advice from Gregory Katsas, an experienced Washington attorney chosen by Trump as deputy counsel to the president.
      Trump has now nominated Katsas to a lifetime federal judgeship: a seat on the United States Court of Appeals for the District of Columbia Circuit, often referred to as the country's second most important federal court. On paper, Katsas is eminently qualified for the bench, as seen in the questionnaire he filed with the Senate Judiciary Committee. Katsas has two Ivy League degrees, Princeton and Harvard Law School; three judicial clerkships, including one term with Supreme Court Justice Clarence Thomas; eight years in ranking positions in the Justice Department; and nearly two decades with a prominent Washington law firm.
      Among all these accomplishments, however, Katsas's most important qualification for Trump's consideration may have been his three decades of active and prominent membership in the Federalist Society. The conservative-libertarian organization has been both the feeder and the screener for Trump's judicial nominees, including the eventual Supreme Court justice Neil Gorsuch.
      Republican senators heaped praise on Katsas during his two-hour hearing before the Senate Judiciary Committee last week [Oct. 17], but Democrats pressed him hard on his ability to be independent of the White House if confirmed. Katsas's assurances on the point left the committee's ranking Democrat, California's Dianne Feinstein, plainly unconvinced.
      Trump has behaved with legal recklessness from his very first week in office — most notably, in issuing as an executive order a travel ban so blatantly anti-Muslim that federal courts had no choice but to strike it down, now even its third iteration. Katsas listed the travel ban as one of many issues on which he had advised the president and the White House staff.
      The sins of the client are  not necessarily sins of the lawyer, but the travel ban was poorly lawyered, to say the least. The executive order was "badly drafted, badly executed, and badly defended," as Jonathan Turley, a George Washington University law professor, remarked at a Supreme Court preview program in September. Nothing has been reported from this very leaky White House to suggest that Katsas voiced any doubts about the ban or counseled against it in any way.
      Katsas listed the travel ban as one of several of Trump's controversial policy moves on which he had advised as deputy counsel. He also acknowledged working on the Emoluments Clause litigation and more specifically pledged to recuse himself if the case eventually came before him.
      Judicial appointments entail some inevitable risks of future recusal — as seen, for example, in Justice Elena Kagan's recurrent need in her first years on the bench to step out of cases that she had helped oversee while serving as U.S. solicitor general. Given his White House role, Katsas would face recusal issues more frequently — arguably, in any of the slew of cases likely to reach the D.C. Circuit challenging Trump administration policy initiatives by executive branch agencies.
      Presidents typically do not nominate White House lawyers for federal judgeships, as the Washington Post noted, "because of questions inevitably raised about the nominee's legal advice." President George W. Bush's nomination of his White House aide Brett M. Kavanaugh to the D.C. Circuit stalled for three years before finally winning Senate approval in May 2006 on a 57-36 vote.
      Trump's utter disregard for administrative law and order casts a darker cloud over Katsas even if, by all accounts, he has a good reputation for honesty and integrity. By way of historical analogy, it seems unimaginable that President Richard M. Nixon, in the midst of the Watergate scandal, could possibly have installed one of his lawyers onto the federal bench. The Senate's then Democratic majority would have rejected the nomination without a second thought.
      Unfortunately, the Senate's current 52-vote Republican majority has shown no hesitation whatsoever in confirming a succession of dubiously qualified, doctrinaire conservative Trump nominees to the federal bench. Katsas will be confirmed, just like those others, unless at least three Republicans are moved by constitutional conscience or, improbably, political calculation to stand up for an independent and politically respectable federal judiciary.
      Katsas was also questioned in regard to his eight years at the Justice Department under President George W. Bush. The Bush administration was also frequently in hot water legally on matters before Katsas in his oversight of the civil division. He acknowledged defending the ultimately unsuccessful effort to block Guantánamo prisoners from any judicial review of their detention, but he claimed credit for faithfully complying with the eventual Supreme Court's decision protecting the prisoners' right to federal habeas corpus.
      If confirmed, Katsas would succeed the hard-line libertarian-conservative judge Janice Rogers Brown, who was reported in early July to be planning to retire after 12 years on the bench. With Brown's retirement, the court's active judges include seven Democratic appointees and three Republican appointees.
      Katsas was asked about his interest in the seat on July 7, according to his account, and five days later agreed to a request by his boss, White House counsel Don McGahn, to undergo a background check. He passed, according to the Trump White House standards, but his work in two legally suspect presidential administrations cries out for the Senate to say no.

Sunday, October 15, 2017

A Free Pass for Corporations in Human Rights Suits?

      Seven years after giving corporations a First Amendment right to unlimited spending in election campaigns, the Roberts Court appears ready to give corporations a free pass for serious human rights violations committed abroad. That result was the consensus prediction following arguments last week [Oct. 11] in a case seeking to force the Jordan-based Arab Bank to pay millions of dollars in damages to victims of violent attacks in Israel and the West Bank for helping to finance the militant Palestinian group Hamas.
      The plaintiffs in Jesner v. Arab Bank, PLC are relying on a 225-year-old federal law granting federal courts the power to hear damage suits for violations of international law. Congress included what is now called the Alien Tort Statute as a single sentence in the Judiciary Act of 1789, the foundational statute for the federal judiciary. The provision lay mostly dormant until the 1980s, however, when human rights lawyers in the United States began using it to haul accused international human rights violators into U.S. courts to be held accountable for their conduct.
      The Supreme Court has been less than receptive to claims under the law despite its seemingly clear "plain text." Federal courts, the law states, have "original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations [emphasis added]." In a pair of recent decisions, however, the Court has moved to limit the scope of the law — its substantive content and its geographical reach — and questioned use of the law to sue corporations, not just individual defendants.
      In the present case, the New York-based Second U.S. Circuit Court of Appeals accepted arguments by Arab Bank and supporting U.S. business groups that the law does not authorize suits against corporations. Judging from the three-sided arguments at the Supreme Court, the four most conservative justices along with Anthony M. Kennedy are ready to agree despite the four liberal justices' evident doubts about the basis for any broad exemption for corporations.
      Representing the plaintiffs, Jeffrey Fisher, a Stanford law professor and director of the school's Supreme Court litigation clinic, opened by stressing what he called the "traditional presumption that corporations can be held liable in torts." He acknowledged that the court's most recent decision, Kiobel v. Royal Dutch Petroleum Co. (2013), required that the alleged misconduct have some sufficient connection to the United States for a suit to proceed in federal court.
      The suit in Kiobel that the Supreme Court rejected stemmed from environmental depredation by the Dutch company from oil drilling in the Niger River delta in Nigeria. Fisher contended that the Arab Bank's financing of Hamas met the jurisdictional test  because the bank has a U.S. branch and its transactions clear through a New York financing facility.
      Representing the bank, Paul Clement, the former U.S. solicitor general and now the go-to Supreme Court advocate for conservative causes, discounted the claimed basis for federal jurisdiction over the suit. But he argued more broadly and most strongly that there was no "norm for holding corporations liable for violations of international law" in circumstances like those alleged in the suit.
      In a split-the-difference stance, the government agreed with Clement that the Arab Bank's use of a New York clearinghouse was insufficient to establish federal jurisdiction over the case. But Brian Fletcher, an assistant U.S. solicitor general, argued that Clement's argument for a "categorical rule" exempting corporations from suits under the law was "wrong."
      Chief Justice John G. Roberts Jr. led the conservatives in questioning the suit, just as he had done earlier in the Kiobel argument. He repeatedly voiced concern about the likely "foreign entanglements" if federal courts entertained suits arising from events abroad. Fisher and Fletcher both argued for dealing with those concerns case-by-case without any categorical exemption for corporations.
      All four liberal justices echoed those doubts in questions from the bench. Justice Stephen G. Breyer aptly asked who could be held liable for financing terrorism if not a bank: only a billionaire, he suggested. Justice Elena Kagan asked the same question about use of slave labor. And Justice Sonia Sotomayor answered the conservatives' doubts by noting that "many countries" hold corporations civilly liable in tort suits.
      From the conservative side, Justice Neil Gorsuch, he of the plain-text statutory construction school, questioned whether Congress in 1789 really had corporations in mind when it passed the law. The law originated from an assault on the French ambassador, an alleged violation of the international law of diplomatic immunity. Kagan batted away Gorsuch's doubts by asking "what difference" it would have made if the ambassador's assailant had been hired by a corporation.
      The U.S. Chamber and other business groups now count this as a major issue because of the proliferation of suits against U.S.-based multinational companies — for example, against Ford and IBM for supplying cars or computers to South Africa's apartheid regime or against Wal-Mart for buying from suppliers abroad with inhumane working conditions. With the conservative justices evidently sharing that concern, Fisher noted that the number of suits has dropped since the court's decision in Kiobel.
      The Roberts Court's conservative majority has been solicitous of business interests in a variety of areas — most controversially in the 5-4 decision in Citizens United v. Federal Election Commission (2010) giving corporations a First Amendment right to engage in political spending. Against that background, a decision to give corporations a free pass for violating international law seems a flat contradiction.

Saturday, October 7, 2017

'Makeweight Excuses' on Political Gerrymandering

      Justice Felix Frankfurter fashioned a strong legal argument in 1946 when he warned his Supreme Court colleagues not to step into a "political thicket" by agreeing to adjudicate a challenge to Illinois' badly malapportioned congressional districts. Frankfurter's views prevailed in a 4-3 decision, but two decades later the Court boldly stepped into the thicket by opening federal courts to reapportionment cases and establishing "one person, one vote" as a fundamental principle of American democracy.
      History has proved Frankfurter wrong and the later Warren Court right. But two of the Roberts Court's most vocal conservatives revived Frankfurter's misplaced fears last week [Oct. 3] in trying to steer their colleagues away from taking on a new generation of redistricting challenges to political gerrymandering.
      Frankfurter stated matter-of-factly that "of course," no court could redraw Illinois' districts to bring them into conformity with "standards of fairness for a representative system." Five decades of redistricting and reapportionment cases prove that Frankfurter was wrong. But Chief Justice John G. Roberts Jr. and the Court's newest member, Justice Neil Gorsuch, threw up their hands in surrender last week rather than require that district lines be drawn to conform with standards of political fairness for a two-party system.
      Roberts and Gorsuch offered only makeweight excuses for shrinking from the Court's promise of equal justice under law. Roberts feared that the Court would expose itself to partisan criticism from whatever political party a hypothetical anti-gerrymandering decision might disadvantage.
      That ship sailed in 2000 when five Republican-appointed justices in Bush v. Gore delivered the White House to George W. Bush rather than allow an unhampered recount of the popular vote in Florida. Roberts himself has exposed the Court to partisan criticism time and time again in politically charged cases, according to a compilation by Ian Millhiser on the liberal news site Think Progress Memo.
      In two of those cases, Citizens United v. Federal Election Commission (2010) and Shelby County v. Holder (2013), Roberts helped craft new constitutional doctrines to render decisions that evidently advantaged Republicans over Democrats. Whether right or wrong, surely the Court could not have declined to decide the cases because politically treacherous.
      For his part, Gorsuch wanted to take the Supreme Court out of the issue altogether. He offered the bizarre suggestion that Congress could use its constitutional authority to police the states in drawing state legislative districts.
      Back in 1946, Frankfurter had some basis for suggesting that Congress had the institutional capacity to enforce the federal law passed three decades earlier requiring equal-population congressional districts. As a sometime critic of congressional dysfunction, however, Gorsuch surely could not have been serious in suggesting that the 435-member House of Representatives could judge the fairness of legislative districts lines every 10 years in even one state, much less all 50.
      Roberts and Gorsuch made the comments during a spirited argument in a gerrymandering case from Wisconsin, Gill v. Whitford. With full control of state government for the first time in decades, Wisconsin Republicans drew state legislative districts in 2011 in a way that enabled the GOP to win 60 percent of the seats in the next election with less than a majority of the overall state vote.
      Democratic voters served as plaintiffs in a well-crafted constitutional challenge to the districting scheme. The plaintiffs and their legal team endeavored mightily to meet the test laid down by Justice Anthony M. Kennedy in an earlier case to offer a judicially manageable standard to determine when  politically motivated district maps go beyond constitutional bounds.
      Their theory relied in part on a quantifiable measure, a so-called "efficiency gap," devised by Nicholas Stephanopolous, a law professor at the University of Chicago. The efficiency gap compares the number of "wasted votes" for each of two parties: votes cast for the party in losing races and the "excess" number of votes in winning races.
      In Wisconsin, the Republican-drawn plan left Democrats with many more wasted votes than the GOP. Plaintiffs argued that an efficiency gap above a certain threshold could be seen as constitutionally impermissible. Roberts dismissed the theory as "sociological gobbledygook," while Gorsuch suggested it had no more exactitude than his recipe for turmeric-infused barbecue sauce.
      In a post-argument commentary for the online magazine Slate, Stephanopolous explained step by step the role that the efficiency gap could play in judging partisan gerrymanders. The test, he explained, would look first and second for partisan intent and partisan effect and then use the efficiency gap as a measure of partisan asymmetry. Plaintiffs could show the asymmetry unjustified by offering simulated maps with less asymmetry.
      The four-step test may sound complicated, but it is no more complex than the formula devised for judging mixed-motive cases in job discrimination suits. As for Gorsuch's concern about imprecision, the "one person, one vote" test itself is necessarily fuzzy: precisely equal population districts are impossible. Over time, the Supreme Court figured out how much variance the Constitution allowed: some but not too much, just like the turmeric in Gorsuch's barbecue sauce.
      Judges cannot shirk hard issues because they are hard. Notwithstanding Roberts' and Gorsuch's concerns, partisan gerrymandering is surely "distasteful," as Justice Samuel Alito Jr. himself opined from the bench. And plaintiffs' attorney Paul Smith was also surely right that the Supreme Court is the only institution that can limit the practice before a likely "festival" of copycat gerrymandering after the 2020 census.

Sunday, October 1, 2017

A Republican Justice Settles In as GOP Cheers

      As a Supreme Court nominee, then-Judge Neil Gorsuch assured the Senate Judiciary Committee of his impartiality by saying that there is "no such thing as a Republican judge or a Democratic judge." Americans apparently disagree. Gorsuch's first few months in office have instantaneously raised Republicans' approval of the Court and driven Democrats' approval down to a near record low.
      A Gallup poll taken in the first week of September found that Republicans' approval of the Court had jumped from 26 percent a year ago to 65 percent as approval among Democrats fell from 67 percent to 40 percent. Whether wittingly or not, Gorsuch has fed the partisan reaction to his confirmation with his votes and opinions as justice and ethically dubious public appearances off the bench.
      Most troublingly, Gorsuch allowed Senate Majority Leader Mitch McConnell to take him along as a trophy of sorts as the justice spoke at two law schools last month in McConnell's home state of Kentucky. McConnell was responsible for stealing the Supreme Court seat that Gorsuch now occupies by leading the Republican-controlled Senate in refusing to consider President Obama's nominee for the position, Judge Merrick Garland. McConnell openly boasted of the nakedly partisan maneuver in an earlier home-state appearance by saying that the change in political climate in Washington could be summed up in "three words: Justice Neil Gorsuch."
      Gorsuch again put any concern for the appearance of impartiality off to the side by agreeing to speak to a conservative organization in Washington last week [Sept. 28] at the Trump Hotel. President Trump's financial stake in the hotel raises an issue under the Constitution's Emoluments Clause, an issue that is quite likely to reach the Supreme Court in one or more of the cases now being litigated in federal court.
      With no evident appreciation of the irony, Gorsuch used his appearance before the Fund for American Studies to call for civility in public discourse. “To be worthy of our First Amendment freedoms, we have to all adopt certain civil habits that enable others to enjoy them as well,” Gorsuch declared.
      Gorsuch spoke less than a week after President Trump had used his bullying pulpit to question the patriotism of National Football League players who "take a knee" during the pregame national anthem to protest racial injustice in the United States. Trump went even further by labeling the protesting athletes as "sons of bitches" and urging NFL owners to fire them.
      Gorsuch's host organization is nominally nonpartisan in its goal of promoting "limited government and free-market economics," but it is thoroughly Republican and conservative in its origins and current leadership. The Fund for American Studies was founded 50 years ago by, among others, the godfather of modern conservatism, commentator William F. Buckley Jr. One reporter at last week's luncheon reported that the audience was filled with "the conservative legal firmament."
      Gorsuch has already agreed to a second speaking engagement in November that will amount to a another victory lap for those responsible for putting him on the Supreme Court. Gorsuch will speak in Washington in November to the annual meeting of the Federalist Society, the conservative-libertarian organization that has touted its role in vetting Gorsuch for the Supreme Court seat.
      Writing in USA Today, Gabe Roth, executive director of the reformist organization Fix the Court, complained that Gorsuch's appearance before an audience of "well-heeled conservatives" illustrated the regrettable tendency of justices to “stick to U.S. audiences whose ideologies closely follow their own." Roth noted that in the previous year conservative justices but none of the liberals had spoken to Federalist Society events, while liberal justices but no conservatives had appeared before the progressive American Constitution Society (ACS).
      Roth's evenhanded plea for justices to get out of their ideological cocoons is well taken, but misses an important point. ACS has never played nor claimed a role in judicial appointments comparable to the role that the Federalist Society has played going back as far as the Reagan administration. Trump tasked the Federalist Society and the conservative Heritage Foundation during his campaign with vetting potential Supreme Court nominees. And he marked Gorsuch's confirmation in April by hosting Federalist Society leaders for a celebration at the White House the next day.
      The Gorsuch effect is seen not only in the shifting partisan lines on the Court's approval rating but also in the justices' case-selecting process. With Gorsuch in his first "long conference" last week [Sept. 25], the justices added nine new cases with unusual speed, including one that represents a major financial challenge to a core Democratic constituency: public employee unions (Janus v. American Federation of State, County, and Municipal Employees).
      Gorsuch, son of a Reagan-era Cabinet member, has cheered Republicans from Trump down by lining up with the Court's other archconservatives, Clarence Thomas and Samuel A. Alito Jr., on issues ranging from Trump's travel ban to capital punishment and gay rights. Democrats are left to rue the results of the Republicans' in-plain-sight theft of the seat. As NPR's Nina Totenberg recently remarked, "All those liberals who thought there might a liberal heart beating somewhere in Justice Gorsuch now know that is not true."