All posts by Michael Ginsburg

USA Today Editorial: Obama Not Guilty of Court Packing

Filling existing vacancies is his job, says the editorial board of the USA Today and we couldn’t agree more.

Anyone familiar with the history of Depression-era America knows what “court packing” means. Frustrated that the Supreme Court was striking down some of his New Deal programs, President Frankin Roosevelt proposed adding six seats to the nine-member court, which he would fill with his own justices.

Even Roosevelt’s fellow Democrats in the Senate couldn’t stomach such obvious abuse, and in 1937 they overwhelmingly killed the plan.

SEN. ORRIN HATCH: Fill other vacancies first

Seventy-six years later, in an outbreak of Orwellian word-twisting, at least three leading Senate Republicans are accusing President Obama of trying to “pack” the nation’s second most important court, the federal Court of Appeals for the District of Columbia Circuit.

Obama’s supposed offense? This month, he nominated three people to fill open seats on the D.C. Circuit. Which is what presidents are supposed to do.

The ludicrous “court packing” charge — made by Sen. Chuck Grassley of Iowa, the top Republican on the Judiciary Committee, and others who ought to know better — has provoked mostly bemused mockery. But Grassley and his fellow Republicans are deadly serious about using filibusters to block Obama’s nominees. Not because they’re unqualified in any way, but because the stakes at the D.C. Circuit are so high, and Republicans are determined to hang on to the advantage they have there.

The D.C. Circuit is important not just because it’s a springboard to the Supreme Court(Ruth Bader Ginsburg, John Roberts, Antonin Scalia and Clarence Thomas all served there), but also because the court makes crucial decisions on federal regulations and a president’s powers.

With their court-packing argument drawing derision, Republicans now say they won’t approve Obama’s three nominees because the court’s workload — measured by the number of cases — is too light to justify them. That’s disingenuous because the unusually complex cases the D.C. Circuit hears give it one of the most challenging and time-consuming dockets of any circuit court.

But here’s the problem for Democrats: They made this same workload argument when they wanted to block President George W. Bush from filling vacant seats on the D.C. Circuit. Senators have simply switched sides: Republicans who now insist the court doesn’t need three more judges had no problem voting to confirm judges picked by a GOP president.

Enough already with the partisan tit-for-tat. The Constitution gives senators an advise-and-consent role, but that comes with two unwritten rules: Filibusters should be used only to stop nominees who are clearly unqualified or outside the broad judicial mainstream. And presidential elections should matter.

Democrats are so fed up with GOP stonewalling that they’re threatening, just as Republicans did when their roles were reversed in 2005, to change Senate rules to ban filibusters for judges, a move Republicans say would start a war.

A bipartisan group of 14 senators brokered a compromise in 2005 that reserved filibusters for “extraordinary circumstances.” The parties would be wise to do the same this year. Continuing warfare over judicial nominees will undermine the courts and drive Congress’ abysmal ratings even lower.

USA TODAY’s editorial opinions are decided by its Editorial Board, separate from the news staff. Most editorials are coupled with an opposing view — a unique USA TODAY feature.

Why We Still Need the Voting Rights Act

And Why the Whole World is Watching

When he signed into law the Voting Rights Act of 1965, President Lyndon Johnson said:

This act flows from a clear and simple wrong. . . . Millions of Americans are denied the right to vote because of their color.  This law will ensure them the right to vote.  The wrong is one which no American, in his heart, can justify.  The right is one which no American, true to our principles, can deny.

Our friends over at the Alliance for Justice published this great primer on how the Voting Rights Act works, how it has helped, why it isn’t enough, and why the whole world is watching how the US Supreme Court will rule.

Read the entire, original article here.

Retired Federal Judge: Your Faith In Secret Surveillance Court Is Dramatically Misplaced | ThinkProgress

by Nicole Flatow of

A retired federal judge warned Friday against blind faith in the secret court deciding the scope of U.S. government surveillance. During a panel discussion on constitutional privacy protection in the wake of a leaked Foreign Intelligence Surveillance Court decision that revealed widespread NSA data collection, U.S. District Judge Nancy Gertner stood up in the audience to counter the statements of conservative law professor Nathan Sales that secret surveillance requests are subject to meaningful judicial review. She cautioned:

As a former Article III judge, I can tell you that your faith in the FISA Court is dramatically misplaced.   Read the entire article at thinkprogress.

BREAKING COURT NEWS: President Does Job. Republicans Set Hair on Fire.

By Nan Aron of the Alliance for Justice


This should be a routine story. Every president does exactly the same thing; when there are vacancies on the federal bench the president is required to nominate new judges, subject, of course, to the advice and consent of the Senate. It’s in his job description (see Constitution; Article II, section 2).orted to be ready to do something very important: He is expected to make nominations for the three empty seats on the D.C. Circuit Court of Appeals.

Which is why you may be puzzled to hear Senate Republicans are screaming bloody murder. The president is trying to “pack the court,” they cry, as if filling vacant judgeships is some kind of unprecedented power grab. They are outraged that the president has the audacity to send names forward for empty seats on the 11-member D.C. Circuit

Read the complete article by Nan Aron from the Alliance for Justice on the Huffington Post:

Nan Aron: BREAKING COURT NEWS: President Does Job. Republicans Set Hair on Fire..

Will Stop and Swab Become the New Stop and Frisk? Reflections on National DNA Day

Today is national DNA Day. It marks the day on which James Watson and Francis Crick along with Maurice Wilkins and Rosalind Franklin published their papers elucidating the structure of human DNA. 10 years ago today also marks the day that scientists working on the Human Genome Project announced that their efforts were nearly complete. That same day the U.S. Congress issued a proclamation declaring April 25th National DNA Day. Having studied and worked in the field of genetics for two decades, this day has always passed with a sense of geeky pride for me. Pride in the work that I was a part of and pride in the fact that for one day many in the nation would share in the wonderment and potential of the human genome and experience what I felt almost every day. Nothing has changed for me in the excitement I feel or in my belief that research into our DNA will bring about great capacity to alleviate suffering, shatter long-held misconceptions about race and class, and help people live to their fullest potential. However, this year I cannot help but feel the technology I have always held in such high regard has been hijacked.
You see, a person’s DNA reveals a lot about them. This is mostly information concerning discontinuous traits like your blood type or clearly-defined diseases like hemophilia or sickle-cell anemia. Your DNA can also provide information on your likelihood of developing other diseases such as cancers or diabetes. Medical genetics may soon give precise odds that a person will develop any given disease, provide information about continuous traits such as height, and will likely provide us with all the information necessary to plan out our health care needs, dietary requirements, and exercise regimes for our entire lives. Of course, our DNA will not reveal quite everything about us. It will not reveal as socio-economic status or race. Sure, DNA may provide someone with an intellectual advantage to boost earning potential or specify how and to what extent differing pigments are carried, but this is actually quite a subtle and continuous trait. There is also research which now demonstrates genetic markers for propensity towards anger or having a predisposition to violence. Scientists carefully warn that this information should not be used to make assumptions about any person since many of us carry these genes or markers; they simply aren’t expressed for some reason. Your DNA may also be able to do one other thing, convince a court or jury of your guilt or innocence.
It is this last item that is of particular concern to me on this National DNA Day. Many in law enforcement have been working for more than a decade to expand laws authorizing the collection of samples from individuals taken into custody so that their DNA may be added to a national database and checked against DNA obtained at other crime scenes. After efforts to pass such a law in Nevada was unsuccessful two years ago, the legislature has again taken the issue up for consideration with Senate Bill 243, which passed the Senate last week by a unanimous vote.
This seems a particularly strange use of government resources, since the use of genetic information as a criminal dragnet goes against everything that one is taught as a scientist. You should never set out to prove yourself right, but always strive to prove yourself wrong. I have always found it strange that we as a society are willing to spend so much on law enforcement and the penal system and so little on education, research, and health care. As citizens, we should be demanding that our government focus its attention and use this technology to cure diseases and understand some of the factors which cause people to become prone to acts of violence. Instead, our government is allowing the FBI, not scientists, to push states to enact punishment-based laws while eroding civil rights and liberties in the process. The United States now has a national DNA indexing system known as CODIS [Combined DNA Index System]. It is run by the Federal Bureau of Investigation and provides, among other things, support for the expansion of model legislation for arrestee DNA collection.
Understandably, those in law enforcement want to be able to solve and prevent as many crimes as possible. And while most would agree that law enforcement should have the best tools available, I think people would rank the preservation of individual rights and liberties as an even higher priority. While many people question the use of the technology at all, others simply question the practice of collecting specimens from individuals prior to conviction and would be willing to overlook other issues if this additional precaution were taken. I myself have a number of concerns with the use of DNA profiling, ranging from the technological to the legal. While some of my concerns could be lessened with changes to the bill, such as post-conviction sample collection and better regulations of the chain of custody and DNA lab, my concerns with racial equity and Constitutional rights cannot. There also seems to be unwillingness on the part of legislators sponsoring these types of bills to make any significant changes. The lack of compromise on the matter is puzzling. It was not until reading the Department of Justice report on the effectiveness of DNA profiling along with realizing that the FBI was pushing this model legislation did the unwillingness for change make sense.
Several reports over the last decade are revealing in what they conclude; they are also revealing in what they omit. In all the reports, the top contributing factors leading to a DNA profile match are the quantity and quality of the sample taken from the crime scene for which a match is sought. Several other factors appear on these lists, including techniques, training, and chain of custody. The one thing you will not find in these reports is the efficacy of the sample size database. Do not bother trying to find such numbers either; the government has refused to release them. Studies in countries that utilizing or have used similar databases show that the size of the database makes little difference to finding a profile match. These studies demonstrate that an extremely high number of DNA profiles would be required in order to be of much use and that law enforcement is better served investigating the crime rather than spending time and resources waiting on some miracle technology to do it for them. In other words, the only way to make the system work is to drastically increase the number of people required to submit a sample for profiling. This explains the unwillingness to drop pre-conviction sampling and also explains why there has even been a push for expansion in other states, which now include such violations as walking a dog in California with the wrong length of leash.
As of the end of 2012, just over half of the states have enacted arrestee DNA collection laws. Nearly all of these laws are pre-conviction, and I for one do not find it to be a coincidence that 20 of those 28 states are at or below the Missouri Compromise Line. Oklahoma, Georgia, and Nevada are the exceptions. I mention this, because it brings me to my last and most important deal-breaker for these laws.

If you are reading this blog, then it should also come as no surprise to you that black men are six times more likely to be stopped by police, more than three times as likely to be taken into custody as a result and twice as likely to have some sort of altercation resulting in additional, serious charges. Once introduced or reintroduced to the criminal justice system, people of color are far more likely to be convicted of crimes for which they are charged and more likely to receive a prison sentence. In fact, nearly two-thirds of the U.S. prison population is comprised of people of color and 1 in 10 black males in their thirties will be in jail on any given day. These disparities that exist in our criminal justice system will also be extended to the DNA profile databases, subjecting people of color to disproportionately high rates of what will amount to a form of electronic surveillance without probable cause and without warrant for the rest of their lives. I would hope that after decades of Jim Crow, segregation, the War on Drugs, the school to prison pipeline, and stop and frisk, we wouldn’t want to add additional measures to further exacerbate the this epidemic.

Perhaps some in society are willing to accept a forfeiture of rights for those convicted of crimes. After all, it isn’t their rights they are willing to forfeit. But are people really willing to forfeit the rights to privacy, due process, and protection against unreasonable search and seizure for everyone? There should be no debate regarding the violation of the Fourth Amendment to the Constitution, allowing defendants to access their own sample for the purposes of exoneration, and the disproportionate effects of racial profiling and the institutional racism of the criminal justice system. We should turn our eyes instead to the system that still struggles to confront and address the institutionalized racism that clouds much of today’s justice.