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Over the past three decades, conservatives have articulated a coherent set of expectations of the Supreme Court and the federal judiciary that has proven compelling to the public and marketable in the political arena. By contrast, progressives have floundered both in developing any sort of consensus as to what they want from the courts and in describing their expectations to the public at large. Progressives have a number of competing visions of what a liberal jurisprudence might look like and how a liberal court would behave—visions that differ almost as sharply with one another as they do with conservative views on the Constitution and the courts. The current issue of the journal Democracy features a debate between two of these competing visions of liberal jurisprudence, pitting an essay urging a “Framers’ Constitution” – the idea that the principles set forth in the Constitution do not change, but that interpretation must evolve over time – against one arguing for “New Textualism” – a theory that asserts that progressive values are inherent in the Constitution’s text, history and structure, and that liberals should base their constitutional arguments, first and foremost, on text.

On July 18, the Brookings Institution hosted a Judicial Issues Forum debate with two of the authors of these papers, Douglas Kendall of the Constitutional Accountability Center and Geoffrey Stone of the University of Chicago Law School. Brookings Senior Fellows E.J. Dionne and Benjamin Wittes moderated the discussion.

After the program, panelists took audience questions.

Video

• Consistent Narrative
• New Textualism
• Three Priorities for Progressives
• What It Means to be American: A New Poll Explores Attitudes in America

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• Progressive Visions of Jurisprudence: A Debate

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• Transcript (.pdf)

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The Electronic Communications Privacy Act of 1986 placed restrictions on government acquisition of electronic data communications, like emails. As increasingly innovative and sophisticated communications technology comes to market, new questions have arisen about how this law’s provisions should be applied. How much evidence must the government have before it can access emails of suspects? Should the standard of evidence differ if the emails are stored virtually in a cloud file system, rather than on a hard drive? How much evidence is required before law enforcement can use suspects’ cell phone data to track their locations over time? Should the government have to go to a judge to get an court order for such information, or should it be able to do so with a subpoena? These are questions at the heart both of an ongoing legislative debate over the reform of the Electronic Communications Privacy Act and a series of recent court opinions.

On May 17, the Brookings Institution hosted a Judicial Issues Forum to convene key stakeholders in the debate to reform the Electronic Communications Privacy Act – including investigators, prosecutors, civil libertarians and industry representatives – and explore whether the apparently rigid battle lines in this fraught policy discussion mask common ground. Orin Kerr, professor of law at George Washington University Law School, delivered keynote remarks.

After the program, panelists took audience questions.

Video

• Electronic Communications Privacy Act Is Old, Complicated
• Technology Changes Dictate Privacy Law Changes
• Data Subject to Local Jurisdictions
• Information: Different Types, Different Protections

Audio

• Reforming the Electronic Communications Privacy Act

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• Transcript (.pdf)

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In his year-end report on the state of the judiciary, Chief Justice John G. Roberts, Jr. called for a long-term solution to filling judicial vacancies, reigniting debate on how to move beyond congressional gridlock on the selection of federal judges. Many say the judicial nominations and confirmations process is in crisis: of the 856 district and circuit judgeships, more than a 100 are currently unfilled as of mid-February, with almost half of those vacancies classified by the judiciary as “judicial emergencies.”

Vacancies have increased more under the current administration than under prior ones, especially on the district courts, but problems in the nomination and confirmation process have been developing over several decades. These trends raise a difficult question: What can and should be done to break the judicial appointments and confirmations logjam?

On February 28, the Brookings Institution and the Federal Bar Association hosted a Judicial Issues Forum on the judicial nominations and confirmations process and the prospects for its improvement. The first panel examined nomination and confirmation trends, as well as assess the impact of judicial vacancies on the courts. The second panel focused on prospects for change in this session of Congress and beyond, including the impact of recent changes to the Senate’s rules.

After the program, panelists took audience questions.

Video

• Sluggish Judicial Confirmation Is Triumph of Ideology
• No Innocent Parties in Judicial Confirmations
• Judicial Delays an Institutional Confrontation
• Courts along Borders Have Special Need for Judges

Audio

• Breaking the Judicial Nominations and Confirmations Logjam
• Breaking the Judicial Nominations and Confirmations Logjam

Transcript

• Panel One - Uncorrected Transcript (.pdf)
• Panel Two - Uncorrected Transcript (.pdf)

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U.S. Supreme Court Associate Justice Stephen G. Breyer’s new book, Making Our Democracy Work: A Judge's View, (Knopf, 2010) aims to elevate the public’s understanding of the U.S. Supreme Court, particularly the societal impact of its most important and historic decisions, its role in the evolution of our democracy and its contribution to what the Justice terms a “workable constitutional system of government.”

On November 10, the Brookings Judicial Issues Forum hosted a discussion with Justice Breyer about the history of the Supreme Court and its efforts to apply constitutional values to current issues. Prior to his appointment to the nation’s highest court in 1994, Justice Breyer taught at Harvard University’s Law School and Kennedy School of Government. He also served as a judge of the United States Court of Appeals for the First Circuit and as its Chief Judge for four years.

Brookings President Strobe Talbott provided introductory remarks. Senior Fellow Benjamin Wittes led a discussion with Justice Breyer.

Video

• Dred Scott Decision
• Supreme Court Exists to Clarify
• Democracy at the Heart of Constitution
• Full Event - Making Our Democracy Work

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• Making Our Democracy Work: A Conversation with Justice Stephen G. Breyer

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• Uncorrected Transcript (.pdf)

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In a post-9/11 world, U.S. intelligence and law enforcement officials are expected to strike a delicate balance between conducting aggressive, swift intelligence gathering and adhering to constitutional privacy protections. But in a digital age, private information can sometimes be obtained easily and without an individual’s permission or knowledge, compromising civil liberties. How does the U.S. government reconcile the need to provide security to its citizens without overstepping privacy laws, which are seen as fundamental rights in a democracy?

On March 11, the Brookings Institution hosted a Judicial Issues Forum discussion on The Watchers: The Rise of America’s Surveillance State (Penguin Press, 2010), a new book by National Journal intelligence and homeland security correspondent Shane Harris. Harris discussed the rise of the American surveillance state over the past 25 years, and offered his views on how our government’s intelligence strategy has made it harder to catch terrorists and easier to spy on everyday citizens.

Following Harris’ remarks, Ben Wittes, Brookings senior fellow, and Kim Taipale, founder and executive director of the Stilwell Center for Advanced Studies in Science and Technology Policy, provided reaction and offered their views on protecting individual privacy in an era of invasive technology.

After the program, the participants took audience questions.

Audio

• The Rise of America's Surveillance State

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• Uncorrected Transcript (.pdf)

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The U.S. Supreme Court’s 2009-2010 term, set to begin on October 5, will consider major arguments on issues ranging from state’s rights and separation of powers to dog-fighting videos. With the appointment of Justice Sonia Sotomayor, the court chairs will be reshuffled.

On October 7, the Brookings Judicial Issues Forum hosted a panel discussion to preview the most anticipated and important cases. Benjamin Wittes, fellow and research director in public law at Brookings, moderated a panel of leading legal scholars and practitioners, including Stuart Taylor, nonresident senior fellow at Brookings; Randolph Moss, partner at Wilmer Hale LLP; and Professor Orin Kerr of George Washington University Law School.

The Judicial Issues Forum is a series of public discussions on jurisprudence and the role of the courts. The Forum regularly hosts events that address the major legal debates of the day and weigh their potential far-reaching implications.

After the program, the panelists took audience questions.

Audio

• The 2009-2010 U.S. Supreme Court Term

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• Uncorrected Transcript (.pdf)

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President Obama’s decision to close the Guantanamo Bay prison camp has left many thorny questions for his administration to resolve.

How many of the 250 detainees—captured by U.S. forces in Afghanistan and elsewhere—can be safely released? How many of the others can be criminally prosecuted? Are human rights groups right to demand the release of those who cannot be prosecuted, no matter how dangerous? Or should Obama continue the Bush policy of detaining as “enemy combatants” those who seem dangerous? If so, should Obama leave the final word on who is an enemy combatant to the federal judges who are reviewing detainees’ cases under a Supreme Court decision that left critical procedural issues unresolved? Or should he ask Congress to adopt new rules and to create a new national security court to administer them?

On March 17, the Brookings Institution hosted a Judicial Issues Forum in partnership with the Progressive Policy Institute to examine these questions. National Journal columnist and Brookings Nonresident Senior Fellow Stuart Taylor moderated a discussion with Harvard Law School’s Jack Goldsmith, National War College’s Harvey Rishikof, American University Washington College of Law’s Stephen I. Vladeck, and Patricia M. Wald, former Chief Judge of the U.S. Court of Appeals for the District of Columbia and former judge of the International Criminal Court for the former Yugoslavia.

The Judicial Issues Forum is a series of public discussions at Brookings on jurisprudence and the role of the courts. The Forum hosts regular events to address the major legal and juridical debates and events of the day and weigh their implications.

At the end of the program, the panelists took audience questions.

Video

• Stuart Taylor
• Jack Goldsmith
• Patricia Wald
• Harvey Rishikof
• Harvey Rishikof

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• Guantanamo Detainees: Is a National Security Court the Answer?

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• Transcript (.pdf)

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Aliens suspected of being in the United States illegally encounter state and federal courts in various ways, from stepped-up federal prosecutions at the border to proceedings resulting from state or federal law enforcement raids on homes and workplaces. And the fate of aliens who seek to stay in the country in the face of government removal efforts rest largely with the Justice Department’s immigration courts, which have been the object of attention not only for how their judges have been selected but also for their heavy caseloads and shortage of resources, including the inadequacy of legal representation available to aliens.

On February 20, Brookings Visiting Fellow Russell Wheeler moderated a discussion with Robert A. Katzmann, who has served since 1999 as a Judge on the U.S. Court of Appeals for the Second Circuit; Juan P. Osuna, who chairs the Justice Department’s Board of Immigration Appeals; and Andrew I. Schoenholtz, professor of law at the Georgetown University Law Center and deputy director of Georgetown University’s Institute for the Study of International Migration.

The Judicial Issues Forum is a series of public discussions at Brookings on jurisprudence and the role of the courts. The Forum regularly hosts events that address the major legal and juridical debates and events of the day and weigh their potentially far-reaching implications.

After the program, the panelists took audience questions.

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What will the new presidential administration mean for the Justice Department and other law enforcement agencies? Key legal and constitutional policy issues from the Bush administration will no doubt carry over: protecting national security with due regard for civil liberties, achieving an immigration policy that secures the nation's borders and treats lawful immigrants fairly, and identifying the proper extent and limits of presidential authority. Furthermore, how might the priorities in the 111th Congress differ on these and related matters from those of the incoming administration?

On November 12, Brookings Visiting Fellow Russell Wheeler moderated a panel of experts that included Arthur Culvahouse of O’Melveny & Myers LLP and Robert Litt of Arnold & Porter LLP.

The Judicial Issues Forum is a series of public discussions at Brookings on jurisprudence and the role of the courts. The Forum regularly hosts events that address the major legal and juidical debates and events of the day and weigh their potentially far-reaching implications.

Listen to the event proceedings » (MP3)

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On October 6, when the U.S. Supreme Court‘s 2008-2009 term began, the Brookings Judicial Issues Forum hosted a panel discussion with leading legal scholars and practitioners who offered their insights on the upcoming Court term and discussed some of the biggest cases on the docket. Issues included the constitutionality of a key provision of the Voting Rights Act; the FCC’s ban on broadcasting “dirty words”; and an unusual petition to reconsider the June 25 ruling that the rape of a child cannot by punished by death, in which the justices made a glaring factual error.

Stuart Taylor, Jr., Brookings nonresident senior fellow, moderated the discussion with Thomas Hungar, former deputy solicitor general of the United States, and Alan Morrison, founder of Public Citizen Litigation Group and visiting professor, American University’s Washington College of Law.

The Judicial Issues Forum is a series of public discussions at Brookings on jurisprudence and the role of the courts. The Forum regularly hosts events that address the major legal and juridical debates and events of the day and weigh their potentially far-reaching implications.

Transcript

• Transcript (.pdf)

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Hot-button topics like abortion dominate voters' views of where the presidential candidates stand on judicial appointments. Yet, as in much of U.S. politics, the process of getting judges on the bench has become cantankerous and divided. The next president should try to work with the Senate to restore civility.

The heated process for selecting judges for the 13 federal courts of appeals and 94 district courts is creating extended vacancies, scaring off good candidates and even threatening judicial impartiality. The divisiveness harms good government by locking the president and senators into warring positions.

The 2008 presidential campaign offers an opportunity, if not to fix the process, at least to curb some of its excesses. Two changes worthy of debate are bipartisan commissions to help screen potential nominees and a timetable to reduce delays.

Until fairly recently, unless a home-state senator objected, the Senate almost always confirmed judicial nominees - and quickly, regardless of who was president. Over the last 20 years or so, the process has become slower, and especially for appellate nominees, more contentious.

Given the important role federal judges play in this republic, some disagreement over their appointments is understandable. But principled disagreement has often given way to ugliness and stalemate. The decline in confirmations is undeniable, and along with it, longer times from nomination to confirmation, even if the vacancy rate at this moment is low by historical standards.

Over the last two administrations, stalemate, delay and charges and counter-charges about nominees' character, credentials and policy views have harmed the courts. Increasing numbers of nominees have been subjected to long disruptions in their professional and personal lives while Washington wrangles over their nominations, and potential nominees have been reluctant to allow their names to go into the wringer. Some courts have been left shorthanded, and public confidence in the courts has diminished.

Observers have offered various fixes to tone down confirmation battles, such as judicial term limits. That would require statutory change if not a constitutional amendment, unlikely prospects even in harmonious times.

Establishing bipartisan commissions to suggest qualified individuals for nomination and agreed-upon timetables for processing nominations requires no statutory change. The time to press candidates to commit to them is now, before the election. Both John McCain and Barack Obama should be asked to create a bipartisan commission to suggest potential appellate court nominees, and to urge senators in each state to create similar commissions for district court nominees for presidential consideration. Senators could forward the suggestions to the White House, which could give priority consideration to candidates the commissions recommend. (Senators in eight states use such commissions now.)

Commission recommendations will be just that, binding neither on senators who recommend nominees nor on the President, in whom the Constitution vests sole nominating authority. But, properly constituted, such commissions can help identify good prospective judges, partly by encouraging applications from prospects whose lack of political clout discourages them from seeking what they may perceive as purely patronage nominations.

And, bipartisan commissions won't mean bipartisan appointments. Commission or not, nominees will be heavily drawn from members of the president's party. Good-faith bipartisan consultation, however, can provide the White House and senators with insight about nominees likely to provoke conflicts with costs greater than benefits to the president, Senate, potential nominees and the courts.

Similarly, the presidential candidates should seriously weigh committing to pre-established time limits for selecting nominees and for good faith Senatorial consultation before making nominations. Likewise, they should urge the Senate to establish time limits for hearing and floor votes, at least for commission-recommended nominees.

These proposals will have an intuitive appeal to voters who expect candidates to endorse sensible changes. The steps are largely transparent, facilitating news media monitoring and good-faith implementation.

True, procedures endorsed bilaterally in 2008 could fall apart in 2009 over what constitutes "bipartisan commissions" or "good faith consultation," but the near consensus that the process is not working well now makes a strong case for trying something different.

     

 

 

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The next U.S. president may well have to reconfigure both the Supreme Court and the U.S. courts of appeals. On September 4, the Brookings Judicial Issues Forum hosted a discussion of how John McCain or Barack Obama might approach this opportunity differently and how they might address the challenges associated with appointing judges and shaping courts.

Brookings Fellow and Research Director in Public Law Benjamin Wittes moderated a panel of experts that includes Visiting Fellow Russell Wheeler, Doug Kendall of the Constitutional Accountability Center and Ed Whelan of the Ethics and Public Policy Center.

The Judicial Issues Forum is a series of public discussions at Brookings on jurisprudence and the role of the courts. The Forum regularly hosts events that address the major legal and juridical debates and events of the day and weigh their potentially far-reaching implications.
 

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The U.S. Supreme Court debated high-profile cases on gun control, Guantanamo Bay detentions, employment discrimination, the death penalty and other subjects of national controversy during its 2007-2008 term.

On June 27, Brookings Fellow Benjamin Wittes moderated a Judicial Issues Forum that included a panel of distinguished legal experts to assess the key rulings and developments of the term. Panelists included Stuart Taylor, Brookings nonresident senior fellow and National Journal columnist; Miguel Estrada of Gibson, Dunn & Crutcher LLP; and Randolph Moss of WilmerHale.

Video

• Supreme Court Overview
• Overturning the D.C. Handgun Ban

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• Transcript (.pdf)

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In the wake of the 9/11 attacks and the capture of hundreds of suspected al Qaeda and Taliban fighters, we have been engaged in a national debate as to the proper standards and procedures for detaining “enemy combatants” and prosecuting them for war crimes. Dissatisfaction with the procedures established at Guantanamo for detention decisions and trials of detainees for war crimes by military commissions, and concerns about the feasibility of conducting major terrorism trials in regular Article III courts, have led to proposals to establish a special National Security Court.

This new court, which would have greater flexibility to conduct non-public proceedings than do the regular federal courts, could make or review status and detention decisions and/or conduct trials of suspected terrorists. The conference will discuss the pros and cons of establishing such a new federal court, and what jurisdiction should be assigned to such a court.

     

 

 

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Questions about identification requirements for voting continue to inspire rancor from both sides of the aisle as policy-makers seek to prevent voter fraud and address concerns that such rules disenfranchise poor and minority voters. At the same time, the U.S. Supreme Court is preparing to hear arguments in two landmark cases on Indiana’s voter ID laws, Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita; the Court’s decision in these cases will have far-reaching effects for the 2008 election and beyond.

On January 7, two days before the Supreme Court arguments, the AEI-Brookings Election Reform Project and the Brookings Judicial Issues Forum hosted a discussion previewing the arguments and exploring the legal issues underlying the cases. Thomas Mann, co-director of the AEI-Brookings Election Reform Project and Brookings senior fellow, moderated the panel. Panelists included Mike Carvin, partner at Jones Day; Wendy Weiser, deputy director of the Democracy Program at the Brennan Center for Justice at the New York University School of Law; and Stuart Taylor, Jr., a nonresident senior fellow at Brookings and a writer for National Journal and Newsweek.

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The Durham County District Attorney's handling of rape allegations against Duke University lacrosse players has Americans questioning their confidence in the American criminal justice system. On October 10, Brookings hosted a discussion on prosecutorial misconduct, examining its frequency at the state and federal levels, the circumstances under which it is most likely to occur and strategies to minimize its impact.

Benjamin Wittes, fellow and research director in public law at Brookings, moderated the discussion. The panel featured Stuart Taylor, Jr., nonresident senior fellow and co-author with KC Johnson of Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case (Thomas Dunne Books, 2007); James Comey, former U.S. Deputy Attorney General, and Steven Benjamin, a criminal defense lawyer with the law firm Benjamin & DesPortes.

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In the biggest decision in decades on whether the Constitution's Second Amendment creates a personal right to keep and bear arms, a District of Columbia federal appeals court recently struck down the District's ban against having a pistol or an operational rifle, even at home for self-defense. If the district seeks Supreme Court review, it could lead to the most important gun control decision in history. Meanwhile, the mass murder at Virginia Tech University stoked the perennially simmering debate whether stronger gun controls could prevent such horrors—or make them more likely.

On June 11, the Brookings Institution continued its Judicial Issues Forum series with a discussion of the practical and constitutional arguments for and against various forms of gun control. Panelists included Josh Sugarmann, executive director of the Violence Policy Center; Randy Barnett, Carmack Waterhouse professor of legal theory at the Georgetown University Law Center; Jens Ludwig, professor of public policy at Georgetown University and nonresident senior fellow at Brookings; and Benjamin Wittes, guest scholar at Brookings.

Stuart Taylor, Jr., a nonresident senior fellow at Brookings and a writer for National Journal and Newsweek, moderated the panel.

     

 

 

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The dismissals of eight United States attorneys have brought Attorney General Alberto Gonzales under intense scrutiny. As more details come to light, broader questions regarding the influence of presidential policy and partisan politics on the work at the Justice Department are being asked.

On April 20, the Brookings Institution continued its Judicial Issues Forum series with a discussion on lessons learned from the attorney general firings and other legal controversies. Panelists discussed the trial and conviction of former White House Chief of Staff, Scooter Libby; the enforcement of the Voting Rights Act; prosecution of voter fraud; and the replacement of all US attorneys by the Clinton Administration in 1993.

Panelists included two former Justice Department officials under President Clinton, Neal Katyal, professor of law at Georgetown University, and Robert Litt, partner at Arnold & Porter LLP. Additionally, Benjamin Wittes, Brookings guest scholar; George Terwilliger, former Deputy Attorney General under George H.W. Bush; and Timothy Flanigan, former deputy to then-White House Counsel Alberto Gonzales, provided commentary.

Stuart Taylor, Jr., a nonresident senior fellow at Brookings and a writer for National Journal and Newsweek, moderated the panel.

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On November 29, the U.S. Supreme Court heard oral arguments on one of the most important environmental cases in decades, Massachusetts v. Environmental Protection Agency (EPA). The justices reviewed a federal appeals court ruling in favor of the Bush Administration's refusal to regulate greenhouse gas emissions.

Massachusetts, 11 other states, cities and environmental groups say that the agency should regulate such emissions, which are widely seen as a major cause of global warming. The Administration, another nine states, industrial interests, and others respond that the EPA has no legal power or duty to regulate such emissions, and a requirement could impose vast economic burdens with negligible impact on the global warming problem.

On December 4, the Brookings Institution continued its Judicial Issues Forum series with Stuart Taylor, Brookings nonresident senior fellow, who moderated a discussion on the case and the larger issues around global warming. He was joined by Gregg Easterbrook, Brookings visiting fellow; David Sandalow, Brookings Environment Scholar; David Doniger, policy director of Natural Resources Defense Council Climate Center; Robert Reynolds, partner, Alston & Bird LLP; and Mark Moller, constitutional studies senior fellow at the Cato Institute.

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The 2006 mid-term elections presented new questions about gerrymandering—particularly how Election Day results would be affected by congressional redistricting designed to provide an electoral edge to certain political parties and incumbents, or to disadvantage racial groups as the Supreme Court recently ruled Texas had done. Brookings explored these issues in the second series of panel discussions on America's polarized politics inspired by the book Red and Blue Nation? Characteristics and Causes of America's Polarized Politics.

Brookings explored these issues in the second series of panel discussions on America's polarized politics inspired by the book Red and Blue Nation? Characteristics and Causes of America's Polarized Politics (Brookings, 2006).

Brookings Senior Fellow Thomas Mann, who has written a chapter on gerrymandering, was joined in the discussion by Sam Hirsch, a Jenner & Block attorney who has represented the Democratic Party's national redistricting project; Mark Braden, a Baker & Hostetler partner and former chief counsel of the Republican National Committee, and Thomas Edsall of The New Republic, who has written on the historic impact of gerrymandering and polarization. Stuart Taylor, Brookings nonresident senior fellow, moderated this discussion.

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