The four-judge federal trial court in Delaware has operated one judge short for almost four years and is on the verge of losing another. One Delaware attorney who frequently appears before the federal bench told the Wilmington News Journal, "Despite the heroic efforts of the remaining judges, plaintiffs and defendants are left languishing. It is a disaster here."

Only three judges have strived to manage the U.S. District Court for Delaware's docket since December 2006, when Judge Kent Jordan left to claim a spot at the U.S. Court of Appeals for the Third Circuit. And, earlier this year, Judge Joseph J. Farnan Jr. announced his resignation from the court, effective this July. No nominations have been announced yet to fill either position, though a White House official informed the Delaware paper that potential nominees currently are being vetted.

The situation has proven so dire that the district's Chief Judge Gregory M. Sleet reached out to district court's in New Jersey and Pennsylvania, which have taken on portions of the Delware court's civil docket. Even with the assistance, though, one judge's civil calendar for 2010 is already full. The Delaware court maintains exclusive control over its criminal docket.

According to U.S. Attorney for Delaware David Weiss, if there is not at least one nomination announced and confirmed by July, "there is no doubt that would be devastating."

There are currently 101 vacancies on federal courts: 19 on courts of appeal and 84 on district courts. Another 22 federal judges have informed the president of their intent to retire. Pending before the Senate are 31 nominations to the federal bench made by President Obama.  

[H/T: Main Justice. Image via University of Delaware Library.]

On Tuesday, the Supreme Court heard oral argument in McDonald v. City of Chicago, which raises the question whether the Second Amendment's guarantee of a right to bear arms applies to states and local governments. Going into argument, incorporation of the Second Amendment right seemed a given - after all, states already have to obey virtually every right in the Bill of Rights. The critical question was whether the Court would breathe new life into the Privileges or Immunities Clause, and honor the part of the Fourteenth Amendment's text that clearly protects substantive fundamental rights from state infringement.

The Privileges or Immunities Clause was intended to be the centerpiece of the Fourteenth Amendment, but it was written out of the Constitution by the Supreme Court in the 1873 Slaughter-House Cases. The decision has been regarded as one of the worst in the Court's history, and roundly condemned by the Amendment's framers in the 1870s, Justice Harlan in the early 20th century, and Justice Black in the 1940s. The overwhelming consensus among scholars across the ideological spectrum - reflected in a law professors' brief filed by CAC in McDonald - is that Slaughter-House obliterated the text and history of the Clause through a profoundly incorrect interpretation of the Constitution.

Unfortunately, the Privileges or Immunities Clause received a chilly reception from the Court on Tuesday, especially from those Justices who most profess to take the Constitution's text and history seriously. Justice Scalia belittled the Clause, accusing Alan Gura, McDonald's attorney, of "bucking for some place on some law school faculty" by advancing an argument that was "the darling of the professoriate." Scalia, supposedly the Court's chief originalist, wouldn't even consider the merits of the argument. Chief Justice Roberts, too, refused to follow the Constitution's text and history where it leads. He explicitly worried that the Privileges or Immunities Clause would allow for broad protections of substantive liberty; he preferred to rely on the Due Process Clause, since that text is about process, and does not easily lend itself to protecting substantive fundamental rights. While Roberts and Scalia were content to rely on substantive due process to protect gun rights, they seemed to want to reserve the opportunity to bash the doctrine in future cases involving rights they don't recognize. Other Justices were less overtly hostile, but none seemed willing to revive the Clause.

In light of its reception at the Court, was Gura too bold?

Of course, we don't know what the Court's opinion will ultimately say; it is quite possible that much of the privileges-or-immunities history Gura cited will form the basis for the Court's opinion, which would make the case a great victory for all who care about the Constitution's text and history even if the Court relies on the Due Process Clause. But even if the Court ignores text and history, pushing to revive the Privileges or Immunities Clause was the right decision.

First, if not now, when? The Second Amendment is the only substantive provision of the Bill of Rights not already incorporated against state action. There may never be a better chance to argue that the Clause protects substantive fundamental rights against state infringement.

Second, McDonald has been a teaching moment: thanks to terrific coverage in editorials and stories in the New York Times, Washington Post, and other papers, millions of people now know that protection of substantive fundamental rights was written into the clear text of the Constitution. Thanks to this coverage, debates about whether the Constitution protects fundamental rights will not be the same. Whatever the Court says in its opinion, Americans should remember that the Privileges or Immunities Clause was written to ensure all Americans enjoy broad protections of substantive liberty, including fundamental rights not enumerated in the Constitution. And the Justices certainly are now aware of the overwhelming scholarly consensus that the Clause has been long-mistreated by the Court.

Finally, Justices have pushed to revive the Privileges or Immunities Clause for over a century, and there is no reason to think McDonald will be the last word. It is possible that, in future cases, the Court's liberal Justices may find that the Clause's text and history is a powerful weapon. When the Court next considers the right to reproductive choice recognized in Roe or the right of sexual intimacy recognized in Lawrence, the text and history of the Privileges or Immunities Clause may be a powerful rejoinder to the arguments by Justice Scalia and others that protecting substantive fundamental rights through the Due Process Clause is "judicial usurpation." The Clause's text and history, which show that that the framers were concerned about ensuring that the newly freed slaves had rights as citizens to marry, decide whether to bear children, and control their family life, gives the Court's liberal Justices powerful ammunition to root protection of rights of heart and home directly in the Constitution's text and history.

[Image via Sam Ruaat.]

The Washington Post today reported: "Obama advisers are set to recommend military tribunals for alleged 9/11 plotters." The report indicates that the Obama administration now leans towards trying self-proclaimed 9/11 mastermind Khalid Sheikh Mohammed (KSM) and his co-conspirators in military tribunals. Reactions were swift and are offered below without comment.

"Obama said that the choice between our security and our ideals is a false choice. He was right," writes Adam Serwer at The American Prospect. "The real choice was always between our ideals and our politics, and if the above story is true, then Obama will have made the obvious, if profoundly disappointing, choice."

At Harper's, Scott Horton introduced "Barack Obama's new attorney general: Rahm Emanuel," apparently blaming Emanuel for the administration's shift in policy. Marcy Wheeler seemed to agree.

"Three is the number of people who have been convicted in the military commissions system. Two of the men convicted in the military commission system are free today," the ACLU offerred at their blog. "Compare that to the more than 300 who have been convicted on terrorism-related charges in our federal criminal courts and are incarcerated in federal prisons."

Sen. Russ Feingold notes this track record of military commissions and warns that "[t]he best way to bring these terrorists to justice swiftly is through our civilian courts."

Spencer Ackerman is tracking commentary from former military officers opposing military tribunals for KSM.

Steve Benen wonders if fault for any potential policy shift ultimately lies with Congress, who "spent the last year cowering whenever national security came up, and threatening to side with Republicans on cutting off funding for trials and Gitmo closure."

Folks at The Atlantic's politics blog conjectured that the Post's "story is merely a test balloon."

Less charitable commentary was provided by Jeralyn Merritt at TalkLeft and Glenn Greenwald at Salon, who both voiced grave disappointment with the admistration's reported shift in position.

A final notable quote is from Attorney General Eric Holder, a former ACS board member, in an exchange with a reporter from The New Yorker earlier this year. In an extensive report on his decision to try KSM in an Article III Court, Holder eagerly defended what was then the administration's position:

"I don't apologize for what I've done," [Holder told The New Yorker]. "History will show that the decisions we've made are the right ones." Holder said that he regarded trying Khalid Sheikh Mohammed in a courtroom as "the defining event of my time as Attorney General." But, he added, "between now and then I suspect we're in for some interesting times."

If the commentary above is any indication, interesting times may well be upon us.

[Image via The White House.]

[Part I of "Supersizing the Second Amendment?" is available here.]

So why do I still say that gun control advocates are also seemed to be big winners?

Because the Justices seemed to think that, regardless of incorporation, state and local governments would retain wide leeway to enact gun control. The only words used as much as "fundamental" and "implicit in ordered liberty" in the argument were "reasonable regulation."

Numerous Justices expressed their support for the idea that the Second Amendment did not prohibit reasonable regulation of firearms. Justice Kennedy said that lawmakers still "have substantial latitude and ample authority to impose reasonable regulations." Justice Ruth Bader Ginsburg said that she "thought that Heller allowed for reasonable regulation." Justice Scalia didn't use that catchphrase, but went out of his way to say that Heller "was very careful not to impose" severe limits on the federal government "precisely because it realized that" gun violence "is a national problem."

There are two ways to think about "reasonable regulation." The first is what I've long endorsed: the Second Amendment should be governed by the formal "reasonable regulation" standard uniformly used in state constitutional law. Forty-two states have constitutional protections for the individual right to bear arms and all of them apply a deferential standard by this name. Under that test, any regulation will be allowed to stand so long as it doesn't effectively destroy or nullify the individual's right to have a gun for self-defense. Some types of weapons can be banned so long as individuals have access to others. Applying this test, almost all gun control survives.

The second way to think about "reasonable regulation" is not as a formal test but as shorthand for allowing lawmakers broad leeway to regulate guns. This seems to be what the Court did in Heller. The Justices did not formally adopt the state law standard of review. Instead, they adopted categorical rules and recognized a number of gun control "safe harbors." While they don't create a standard of review, the exceptions listed out in Heller encompass most forms of gun control. None of these are constitutionally infirm under the Second Amendment.

The distinction between these two ways of thinking about reasonable regulation may be more theoretical than practical. The legal effect of Heller has been to permit the vast majority of gun control laws to survive judicial review. In fact, not a single law has been invalidated for violating the Second Amendment since Heller. That's not for a shortage of cases. There have been over 150 federal court decisions on the constitutionality of gun control since Heller and none ruled that the Second Amendment was infringed. Whether the Court promotes the state law standard of review or approaches the Second Amendment with categorical reasoning, the effect on gun control is the same. It almost always survives.

Of course, even if the Court makes clear in McDonald that most gun control laws don't run afoul of the Second Amendment, there are certain to be some laws invalidated in the future. Permitting or licensing laws that give unfettered discretion to police chiefs over who can have or carry a firearm are troublesome, and open the door to arbitrary determinations. Constitutional rights shouldn't be subject to anyone's discretion. But even if that type of law is invalidated, almost all other sorts of gun control laws seem destined to survive.

Maybe McDonald will "supersize" the right to bear arms by applying it to the states. But the effect on gun control is likely to make this landmark case little more than a small fry.

[Image via slimmer_jimmer.]

Yesterday, the Supreme Court heard oral argument in the latest big gun case, McDonald v. City of Chicago. The Court will decide whether the individual right to keep and bear arms recognized in 2008's D.C. v. Heller extends to the states. I was at oral argument and there seemed to be two big winners: gun rights advocates and gun control advocates.

The gun rights folks, like the NRA, seemed poised to win the case. Of the five Justices who voted with the majority in Heller, all appeared to be inclined to hold that the right to bear arms is a "fundamental" right such that it applies to state laws. (Well, not all of the five: Justice Clarence Thomas said nothing, extending his streak of silent oral arguments that dates back to 2006.)

Just like in the Heller oral argument, Justice Anthony Kennedy, the swing vote, showed his cards. "If [the right to bear arms is] not fundamental, then Heller is wrong, it seems to me." Chief Justice John Roberts said, "I don't see how you can read Heller and not take away from it the notion that the Second Amendment, whether you want to label it fundamental or not, was extremely important to the framers in their view of what liberty meant."

As Paul Clement, representing the NRA said, the question of whether the right to bear arms was fundamental or not was "remarkably straightforward." The fact that Clement was there at all was a surprise. The NRA was not formally a party to the suit. More striking still was that Clement was representing the NRA. After Clement, then serving as Solicitor General, filed a brief in Heller suggesting that D.C.'s handgun ban might be constitutional, gun rights activists branded him a traitor. Now he is their lawyer.

The more interesting set of questions about incorporation came from Justice John Paul Stevens, who asked repeatedly why the right should apply in exactly the same way to federal laws, on the one hand, and state laws, on the other. "Why does this incorporation have to be every bit as broad as the Second Amendment itself," he asked. He harkened back to the second Justice John M. Harlan's view that incorporated rights might impose different limits on the federal and state governments. Justice Harlan proffered this view repeatedly during his tenure, especially in obscenity cases. Courts, he argued, should treat federal speech restrictions less leniently than similar state restrictions. Federal laws apply nationwide and thus inhibit experimentation, whereas state laws impact a smaller population. The federal government is also one of limited powers, so some issues aren't appropriate for national regulation even if they are appropriate for state regulation.

Incongruent treatment of federal versus state laws never took off. Even since the mid-1950s, the Court has virtually ignored which level of government is behind a law restricting fundamental rights, be it speech, religion, or privacy. But the question is a good one. Should all levels of government be treated the same? Aren't there institutional differences between different governmental actors that should be accounted for in constitutional jurisprudence? The last time the Court considered this question was in the context of affirmative action. There, the Court held in Adarand Constructors v. Pena that federal and state laws should be treated exactly the same.

In some empirical studies of constitutional law decisionmaking, I found that federal courts often treat state and local laws differently than federal laws. In a large study of every federal decision applying strict scrutiny over a fourteen year period, I found that the best predictor of whether a law would survive that demanding standard was the identity of the governmental actor behind the challenged law. Federal laws survived far more often than state or local laws, even though the courts say they are applying the same standard. The effect is especially pronounced in free speech cases. A separate study I did of core free speech cases found that federal laws survived in over 55% of the cases, state laws about 24%, and local laws only 3%.

Note that my findings were precisely the opposite of what Justice Harlan suggested. Courts appear to be more hostile to state and especially local laws than they are to federal laws. There may be good reasons for this pattern. Federal laws are usually vetted by many different interest groups, congressmen have large staffs with good lawyers, and every law must satisfy a heterogeneous national constituency. State laws, and especially local ones, often are enacted without any vetting by interest groups and lawyers, and the demographics are often homogenous rather than diverse. If that is right, then Justice Stevens' proposal about the Second Amendment had it backwards. Courts should be more skeptical of state and local gun laws, not more deferential to them.

So gun rights advocates are likely going to win on incorporation.

Then why do I still say that gun control advocates are also seemed to be big winners?

[Part II of  "Supersizing the Second Amendment?" was subsequently published here. Image via barjack.]

Following in the footsteps of Ohio, Washington became the second state to adopt a one-drug protocol for lethal injections. The single-drug method replaces the three-drug combination widely used by states, and upheld by the U.S. Supreme Court in Baze v. Rees.

Washington's decision was made public in filings with the state's high court in the case of convicted murderer Darold Stenson. The state's Attorney General Rob McKenna filed the disclosure, requesting that the court dismiss Stenson's appeal of his death sentence. McKenna argued that Stenson's constitutional claims are rendered moot by the change in protocol.

Though the state seemingly submitted the one-drug method to circumvent Stenson's constitutional claims, the state maintains that the three-drug cocktail is constitutional. In fact, the three-drug method will remain available to death-row inmates in Washington who request it.

Ohio became the first state to adopt the one-drug method of lethal injection after the botched execution of Rommel Broom. In Broom's case, executioners tried for hours to find an accessible vein, prompting Gov. Ted Strickland to call off the execution. Ohio then made the switch to its one-drug injection, which has since been used in carrying out death sentences of three inmates. Ohio is currently on pace to challenge Texas as the state executing the most inmates in 2010.

[Image via Dirty Bunny.]

Since her nomination to the U.S. Court of Appeals for the Fourth Circuit 169 days ago, and 124 days after the Senate Judiciary Committee unanimously reported her nomination to the floor, Justice Barbara Keenan saw the Senate unanimously end the anonymous hold on her nomination. This afternoon, the Senate voted 99-0 for cloture on Keenan's nomination, then promptly confirmed her 99-0.

The vote on Keenan's nomination came after Judiciary Committee Chair Sen. Patrick Leahy issued a statement calling for up-or-down votes on noncontroversial judicial nominees. In his statement, Leahy lists the 13 nominations pending before the full Senate, including seven that were unimously reported out of committee, and nine that were initially nominated over three months ago. The vote also followed a joint-statement by Sens. Jim Webb and Mark Warner demanding a "prompt vote" on the nomination of Justice Keenan, their fellow Virginian.

Keenan served on the Supreme Court of Virginia since 1991. She was recommended for the Fourth Circuit by Sens. Warner and Webb on June 2, 2009, and nominated by President Barack Obama on September 14, 2009.

The Fourth Circuit, which The Washington Post calls "an influential court on national security cases," still has four vacancies. The president also nominated to the court Judge Andre Davis, who was confirmed in November, and jurists James Wynn and Albert Diaz, whose nominations have been pending in the Senate for almost three months.

[Image via Sen. Mark Warner.] 

The Supreme Court today ordered a lower federal court to reexamine a case involving group of Chinese Muslim detainees, Uighurs, at Guantanamo Bay. In Kiyemba v. Obama, the high court was asked whether a federal court can release Guantanamo Bay detainees into the United States. But in Kiyemba, the high court noted that "each of the detainees at issue in this case has received at least one offer of resettlement in another country." The Supreme Court remanded the case to the U.S. Court of Appeals for the District of Columbia to "determine, in the first instance, what further proceedings in that court or in the District Court are necessary and appropriate for the full and prompt disposition of the case in light of the new developments." In analysis for SCOTUSblog, Lyle Denniston says the high court's "action has two immediate effects: first, it wipes out the Circuit Court's earlier ruling that federal judges have no power to order release into the U.S., even temporarily, because that is an immigration matter exclusively for the President and Congress, and second, it means that the Justices will not have any final ruling this Term on detainee matters, putting the Court on the sidelines while the two other branches of government work out where to go next on policy involving capture and detention of individuals during the government's ‘war on terror.'"

The high court also granted certiorari in one case, Michigan v. Bryant, involving a Michigan Supreme Court decision on how statements a victim made to police can be used at trial. 

Rising Road

A True Tale of Love, Race and Religion in America

By Sharon Davies

[Available Here]

Rising Road is one of those books that happened by accident; a chance occurrence on the way to somewhere else.

After the outcome of the election in 2004, when the country was abuzz with reports of how the question of gay marriage drove President George W. Bush's supporters from their homes to the voting booths, I began to think about law and marriage, and the way of constitutional change.

It was a topic of great personal importance to me, law and marriage. Had my parents been swayed by the marriage laws that were still in place in various states at the time of my birth, I would never have been born. Neither would any of my five brothers or sisters. It was the era of the anti-miscegenation laws. The simple act of having us was a crime, a number of states declared, and they backed the ban up with the criminal sanction. Defiant mixed race couples could be jailed.

I was nearly seven-years-old by the time the U.S. Supreme Court finally got around to striking those laws down. Seems my siblings and I weren't crimes after all. It was the law that was wrong, the Court announced in Loving v. Virginia in 1967. The decision was unanimous. Even Justice Hugo Black agreed, though a son of the South, the region of the country most steadfastly devoted to the anti-miscegenation regime.

After the election in 2004, I wondered how constitutional change like that came about-how acts of intimacy, and marriage, and the wee beings that can result from them, could one day be outlawed, and another day not. I will write an article about that, I thought to myself, and set to work.

When doing the researching for that intended article, however, the unexpected happened. I tripped over a reference to a 1921 trial in Birmingham, Alabama. A murder trial, where the marriage of the daughter of a Methodist minister to a Catholic migrant from Puerto Rico, led the minister to kill the Catholic priest who took their vows. How horrible, I thought. I'll use it as an example in my article.

But when I actually found the transcript of that trial, the awful, revealing story underlying the minister's crime subsumed me-just as the crime had subsumed the nation back in 1921-and my plans changed. This is no law journal article, I thought to myself. This is a book. After three years of research and two more of writing, I delivered the manuscript for Rising Road to my editor at Oxford University Press.

The nonfiction book, written as a narrative, begins with the decision of Ruth Stephenson, age 18, to marry Pedro Gussman, a wallpaper hanger, against the wishes of her parents, Rev. Edwin R. and Mary Stephenson. Alabama law permitted the union, even if Ruth's parents objected; only marriages between whites and blacks were banned. So Ruth and Pedro had no trouble obtaining the marriage license they needed to be wed. But as the tale in Rising Road reveals, "unwritten laws" have been known to shadow those printed in a state's criminal code, and sometimes even outstrip them.

When Rev. Stephenson learned about his daughter's marriage, he shot and killed the priest who married them, Father James E. Coyle, the presiding pastor of St. Paul's Catholic Church. There never was a dispute about the identity of Fr. Coyle's killer-a number of witnesses heard the shots and saw Stephenson step down from the rectory porch where his victim lay bleeding, and Stephenson immediately surrendered and confessed-the only question was whether the minister would be punished for it.

In 1921, the question was more complicated than it should have been. Rev. Stephenson was a member of the resurrected Ku Klux Klan, sometimes known as the "second Klan," an organization that had successfully rebranded itself as a "patriotic" fraternity dedicated to defending the nation against the forces that threatened to engulf it: Blacks, Catholics, Jews and waves of other immigrants flooding into the country with only the slimmest desire to assimilate, Klansmen raged. The rallying cries worked; the Klan packed its rosters during this period with "the best men in town"-doctors, lawyers, judges, law enforcement officers, and men of the Protestant clergy like Stephenson.

After the shooting, the Klan circled the wagons around the jailed minister, holding drives across the state to raise funds for Stephenson's defense, and hiring a talented young lawyer to lead it, Hugo Black. I will not spoil the story for those who care to read the book. Suffice it to say that the pursuit of justice would not be easy, and the lawyer who would one day play a part in striking down the anti-miscegenation laws in 1967, would not hesitate to exploit the impulses that animated them in 1921 while defending the killer of an unarmed priest. It would take some time for Hugo Black, and the nation, to travel along that road to somewhere else.

President Obama has nominated Goodwin Liu, associate dean and law professor at UC Berkeley's Boalt Hall School of Law and the former chair of the ACS Board, to a seat on the U.S. Court of Appeals for the Ninth Circuit. The Los Angeles Times reported that "if confirmed, he could be the only full time Asian American judge on a federal appellate court."

Liu (pictured) is the co-author of Keeping Faith with the Constitution, released last year by ACS and set to be published this summer by Oxford University Press. Keeping Faith articulates a vision of the Constitution and an approach to interpretation that is faithful to the words of the document and at the same time has enabled the Constitution to retain its relevance for each new generation of Americans. The Los Angeles Times noted that the book "discusses the shortcomings of ‘orginalism,' a conservative legal theory maintaining that the Constitution should be interpreted based on its 18th century framers'

In a press statement on the nominations of Liu and Judge Robert N. Chatigny for the U.S. Court of Appeals for the Second Circuit, President Obama said, "Goodwin Liu and Robert Chatigny have proven themselves to be not only first-rate legal minds but faithful public servants."

In a statement, ACS Executive Director Caroline Fredrickson said:

Goodwin first became involved in ACS while he was in a law firm representing businesses and pro bono clients as a litigator. Although he began as a regular member of our D.C. chapter, his passion for the law, tremendous judgment and outstanding temperament made him stand out as a leader. He joined ACS's board of directors, and once again those qualities were recognized by his colleagues, who voted to make him our Chair. We will miss Goodwin, and we congratulate him on this great honor, which he so richly deserves.

The Los Angeles Times noted that Liu has drawn support across the political spectrum, including Clint Bolick, director of the conservative Goldwater Institute's constitutional litigation arm. Bolick told the Times, "Having reviewed several of his academic writings, I find ... Liu to exhibit fresh, independent thinking and intellectual honesty."