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judicial reforms
For Our Rights and Our Future, the Senate Must Get To Work on Judicial Confirmations
Focusing on confirming judges will make a tremendous difference in our lives and for our fundamental rights and freedoms.
Sep 13, 2024
President Biden has already accomplished an incredible amount to help create a federal judiciary that works for everyone. From the confirmation of more than 200 qualified and diverse lifetime judges (and counting) to advancing a long-overdue conversation about modernizing and reforming our Supreme Court so that we can one day trust that it provides equal justice for all, we are making important progress. At a time when the extremist majority on our nation’s highest court has rolled back the progress we have made—taking away the fundamental right to abortion, removing a vital tool for eliminating unfair barriers to educational opportunity, weakening voting rights for communities of color, and more—the task of improving a damaged judiciary is daunting.
It’s no surprise that the public’s trust in the judiciary is declining, as reports persist about some Supreme Court justices’ deeply concerning unethical behavior. Our justices should be serving all of us, but some of them are showing that they are only concerned about the interests of the wealthy and powerful. As we live in this reality, we must also do the work to foster a federal judiciary that respects, recognizes, and advances our civil and human rights.
Our justices should be serving all of us, but some of them are showing that they are only concerned about the interests of the wealthy and powerful.
It is incumbent on every generation to protect the progress made and work toward a more inclusive and thriving democracy and society in which everyone is treated with respect and dignity. Unfortunately, in the past few years alone, a manufactured and coordinated campaign has taken us back—but we are not backing down. We are fighting for a better future where our rights, our lives, and our future are respected. For this to happen, our Supreme Court justices must be held to the highest ethical standards, and Congress must explore all options to improve how the Court functions and thus examine its structure, including limiting the amount of time justices can actively serve. In the next few months, there’s also important work that must be done that will make a real difference in our lives. Federal judges decide important cases from who can access health care to whose votes are counted. And for our democracy to endure, we need highly qualified, fair-minded individuals in courtrooms across our nation who will advance equal justice for all.
President Biden, Senate Majority Leader Chuck Schumer, and Senate Judiciary Committee Chair Dick Durbin have helped to make a significant impact, stewarding more than 200 confirmations of lifetime judges and justices to our federal courts. This includes ushering in the most diverse slate—both demographically and professionally—of federal judges in history. Nearly two-thirds of these confirmed judges are women, nearly two-thirds are people of color, and more than 40 percent have significant experience protecting people’s civil and human rights. Of course, President Biden appointed Justice Ketanji Brown Jackson, the first Black woman and first former public defender to serve on our nation’s highest court, and her service to date has been remarkable. A few weeks ago, President Biden also announced his support for long-needed changes to the Supreme Court, including a binding code of conduct for Supreme Court justices.
Transforming our federal judiciary so it not only looks like America but also recognizes and respects the rule of law—and how laws impact people's lives—has been a cornerstone of President Biden’s administration. Together we have changed the default of who is considered fair and qualified for the federal bench because we know that a judiciary staffed with brilliant people committed to equal justice—people whose experiences have been historically excluded—yields better decisions and is more reflective and representative of America. We celebrate this remarkable progress. But we cannot relent.
Time is of the essence. We need laser-like focus to fill every vacancy possible by the end of the year.
The jurists who President Biden has appointed will be serving for decades to come—far outlasting his impressive four years in office. To honor his legacy and to ensure justice is served in more corners of our country, progress must accelerate. Over the next few months, senators must urgently prioritize the confirmation of diverse judges who possess a deep commitment to our civil and human rights.
Now that the Senate has returned, we urge senators to seize every opportunity to make an immediate and lasting difference. The Democratic-led Senate, under the leadership of Majority Leader Schumer, has already confirmed several nominees this week and has now confirmed 209 lifetime nominees during the Biden administration. Dozens more are awaiting action in committee or on the Senate floor. This includes numerous nominees with critical civil and human rights experience, including experience defending religious freedom and protecting the rights of working people and those involved in the criminal-legal system. Time is of the essence. We need laser-like focus to fill every vacancy possible by the end of the year.
For some comparison, President Trump during his one term in office was able to confirm 234 nominees to lifetime judgeships with the avid assistance of then-Majority Leader Mitch McConnell. In the final months of his one term, the Republican-led Senate confirmed 30 judicial nominees, including a Supreme Court justice. We can exceed the previous administration both in numbers and quality—and we must. While we have a long way to go until we have equal justice, it’s imperative that Schumer accelerate this progress and continue to use every moment over the next few weeks and months to fill as many judicial seats as possible. With focus and determination, the Senate can leave President Biden the legacy of appointing a stunning number—more than the last administration—of superbly qualified judicial nominees.
Focusing on confirming judges will make a tremendous difference in our lives and for our fundamental rights and freedoms. We need to take all necessary steps to strengthen our judiciary so that our multiracial democracy can thrive and equal justice prevails.
President Biden’s legacy deserves no less. And our future depends on it.
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Shopping for Judges by Right-Wing Crusaders Undermines Public Trust
Random case assignment serves as a bulwark against the undue influence of political agendas on our courts.
Mar 23, 2024
If you are a right-wing activist looking to persuade a federal judge to impose your views on the country, what do you do? For starters, you go shopping.
Judge shopping, that is. Head to the courthouse in Amarillo, Texas. No matter if you aren’t from there. There is precisely one federal district judge in Amarillo. His name is Matthew Kacsmaryk. And odds are high that he will issue a ruling just as you seek, one that imposes a highly conservative, indeed theocratic, worldview. He might even issue an injunction that purports to cover the entire country.
That’s what happened a year ago when activists pulled up to Amarillo and won a ruling by Kacsmaryk effectively banning mifepristone, a medication used for more than half of all abortions in the United States. The activists knew, as the judge’s sister told reporters, that he had made it his mission to end all abortions in the United States. (He has called homosexuality “disordered” for good measure.) It showed the power of one judge with a gavel and a grudge to impose his views on tens of millions of citizens.
It will crush confidence in the rule of law if judges are seen as partisan or political actors.
This was too much even for the reactionary Fifth Circuit Court of Appeals, which stayed some of the more extreme parts of Kacsmaryk’s order while the case was appealed to the Supreme Court. Later this year, the court will hear this case. However it turns out, it was an unsettling reminder of the vulnerability of our legal system to judge shopping.
All states have at least one federal district court, but these are often broken into smaller divisions that usually automatically assign cases among one or two judges. Litigants can strategically file in a division with an ideologically friendly judge to boost their odds of a favorable ruling. That matters most when a case is heavy with political or ideological significance. Picking the right law is great; picking the right judge can be even better.
All this is magnified by the weird fact that the Supreme Court has never ruled on whether a single judge can issue a nationwide injunction stopping conduct or barring government from acting. Liberals and conservatives alike have used this for years.
Last fall, the Brennan Center urged the Judicial Conference, a panel of judges that sets policies for the federal judiciary, to address this problem. In a meeting last week, the conference took a welcome if tentative step in the right direction. It announced a policy to encourage random assignment of cases with a statewide or nationwide impact. That would lessen the odds that filing a case in a given division would give a plaintiff their judge of choice. The policy makes sense. But the guidance is nonbinding, and it’s unclear whether districts will follow it. Still, it is a promising sign that federal judicial leaders recognize judge shopping as a threat to public trust. Soon we will learn if their gentle encouragement leads to action. I’m not holding my breath.
The stakes could not be higher. Yesterday we got a glimpse of why this matters so much. Murthy v. Missouri is part of the drive to clear the path for disinformation in the 2024 election. A judge had barred the federal government from even talking to social media platforms to discourage disinformation on Covid-19 or voting. Republican state attorneys general brought the case in a division where they were all but guaranteed to get Trump-appointed Judge Terry Doughty. Last July, he ordered federal officials to stop communicating with social media companies about false content, removing a vital check on the rampant election falsehoods that continue to circulate online.
A Supreme Court ruling on the Murthy case will come in the next few months, but as my colleagues Lawrence Norden and Gowri Ramachandran have pointed out, the trial judge’s ruling has already wreaked significant damage. Government agencies simply stopped talking with Facebook, YouTube, and other platforms. Private groups and scholars pulled back. There is a wide-open terrain for the Big Lie in the 2024 election.
Judge shopping undermines public trust. Opposing it should be a nonpartisan cause. Instead, the new policy—mushy as it is—faced a sharp partisan backlash. Republican senators sent letters to about a dozen federal district court chief judges advising them to disregard the policy change. They accused the conference of involving itself with partisan battles, even though 15 of the conference’s 26 current members were appointed by President George W. Bush.
Public trust in the Supreme Court has plummeted to the lowest level ever recorded in polls. Lower courts may not be far behind. It will crush confidence in the rule of law if judges are seen as partisan or political actors. Random case assignment serves as a bulwark against the undue influence of political agendas on our courts. So one or maybe two cheers for the new policy. Next, the Judicial Conference should cement this policy in the Federal Rules of Civil Procedure. The window for judge shopping should be slammed shut.
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Steven Donziger, Lawyer Targeted by Chevron, Appeals to Biden for Pardon
"A pardon would bring a measure of justice to a prosecution that has been widely criticized as a violation of international law... and as a grave threat to free speech," said 14 attorneys backing the climate justice lawyer's request.
Mar 20, 2024
After exhausting his options in the judicial system, American attorney Steven Donziger on Wednesday launched a campaign seeking a pardon from U.S. President Joe Biden for his misdemeanor conviction—the result of a process that experts worldwide have condemned as retaliatory for his climate justice work and an abuse of the nation's judiciary.
"No matter where one stands on the political spectrum, we should all be able to agree that what happened to me in the United States should not happen to anybody in any country that adheres to the rule of law," Donziger said in a statement announcing a letter to Biden signed by 14 prominent lawyers and a leader at the advocacy group Amazon Watch.
"Corporations should not be allowed to take direct control of a public prosecution from the government and lock up their critics, as happened to me," asserted Donziger, who spent 993 days in federal prison and on house arrest. "It's an outrageous abuse of power that not only wrecked me and my family's life for three years but also embarrassed our country in the eyes of the world."
"As far as we can tell, this was the nation's first private corporate prosecution and is an obvious violation of the rule of law."
Donziger is a Harvard Law School graduate known globally for representing farmers and Indigenous people in a lawsuit targeting Chevron for polluting communities in Ecuador that resulted in a $9.5 billion judgment against the oil giant. After nearly two decades of battling the attorney in Ecuadorian courts, the company went after him directly in U.S. federal court.
The attorneys backing his pardon request detailed in their letter how Donziger endured a "patently biased prosecution by a group of three Chevron-linked lawyers" for refusing to comply with an order from a U.S. judge—an ex-corporate attorney with investments in the oil giant—to turn over his electronics and client communications to the company.
"As far as we can tell, this was the nation's first private corporate prosecution and is an obvious violation of the rule of law," they wrote to Biden. "As a result of the private prosecution, Mr. Donziger, a resident of New York City, spent close to three years in detention at home and in prison even though the maximum sentence under the law for his misdemeanor offense level was 180 days."
"A pardon would bring a measure of justice to a prosecution that has been widely criticized as a violation of international law by respected international and U.S.-based jurists, and as a grave threat to free speech by a multitude of political leaders and over 120 respected civil society organizations including Amnesty International, Global Witness, and Greenpeace," the lawyers argued.
Critics of the process that resulted in his conviction include the United Nations Working Group on Arbitrary Detention; a team of international trial observers led by Stephen A. Rapp, U.S. ambassador for war crimes under the Obama administration; Judge Steven Menashi, appointed to U.S. Court of Appeals for the 2nd Circuit by former President Donald Trump; and right-wing U.S. Supreme Court Justices Neil Gorsuch and Brett Kavanaugh, who dissented from a decision not to take his case.
"I am inspired by Steven's courage, resilience, and determination," said Paul Paz y Miño of Amazon Watch, who signed the 12-page letter along with the group of attorneys. "That's why Chevron wants to destroy him. Steven's very existence creates enormous financial risk to Chevron and to the oil industry generally. Every fossil fuel industry lawyer in this country fears Steven."
"More broadly, Chevron's outrageous abuse of power and manipulation of the federal judiciary to target Steven should deeply concern every advocate in the country, particularly those who engage in protest," Paz y Miño warned. "What happened to Steven is a central component of the fossil fuel industry's playbook to silence public opposition."
Water Protector Legal Collective director Natali Segovia, one of the lawyers who signed on, similarly condemned legal tactics used by corporations to target environmental campaigners.
"Around the world, human rights defenders like Steven Donziger are targeted and even killed for their advocacy and work on Indigenous rights and environmental justice issues," Segovia said. "Steven's case, however, is emblematic of the weaponization of the law by a powerful corporation against a human rights defender—an attorney, to be exact—and sets a dangerous precedent."
"If it could happen to Steven, a Harvard-trained human rights lawyer, it could happen to anyone on climate frontlines."
"If it could happen to Steven, a Harvard-trained human rights lawyer, it could happen to anyone on climate frontlines," Segovia stressed. "This is what we are guarding against. This is why a pardon for Steven barely hits the tip of the iceberg to reverse course, but is a necessary step in ensuring fundamental rights of due process and human rights in the United States."
The other lawyers supporting Donziger—who hail from prestigious universities and groups such as the Center for Constitutional Rights—are Nadia Ahmad, Baher Azmy, Scott Wilson Badenoch, Terrence Collingsworth, Aaron Fellmeth, Richard Friedman, Martin Garbus, Jeffrey Haas, Ronald Kuby, Jeanne Mirer, Aaron Marr Page, Nadine Strossen, and Michael Tigar.
Along with thanking "from the bottom of my heart the many distinguished lawyers who have agreed to represent me in this campaign," Donziger called on the Biden administration to investigate Chevron for abusing the U.S. legal system.
Donziger also said that it remains "critical that people focus on what is of paramount importance, which is the plight of the thousands of people in Ecuador who face a serious risk of death if Chevron does not comply with the rule of law."
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