Courts & the Judiciary

Yesterday, the D.C. Circuit Court of Appeals became the third of the four federal appeals courts to consider the issue to turn back a constitutional challenge to the individual responsibility provision of the Affordable Care Act (ACA). Congress has the power to require individuals to obtain health insurance (with subsidies for low- and moderate-income individuals), the court held, as part of its authority under the Commerce Clause of the Constitution to regulate commercial markets, including the insurance industry. Those challenging the individual responsibility provision have argued that Congress nevertheless cannot require individuals to participate in the insurance market if they choose not to. But, as we argued in a brief in the case and the D.C. Circuit held, civil rights cases show that such a requirement falls squarely within Congress’s Commerce Clause power. As the D.C. Circuit Court stated, while the individual responsibility’s requirement that people obtain health insurance “is an encroachment on individual liberty, . . .it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race.”

But just as notable as the decision itself is who wrote it. Senior Judge Laurence Silberman, the author of the opinion, is an intellectual leader among conservatives.  Read more »

Just wanted to flag an ACS blog post on women in the legal profession, citing an editorial in Tuesday’s New York Times, for anyone who didn’t get their daily dose of depressing yet. To wit:

• Women make up only 30 percent of the federal judiciary (and even fewer state judges are women). ACS notes that this dismal statistic comes thirty years after Justice O’Connor’s appointment as the first woman on the Supreme Court, and I would add that for almost twenty years, women have made up nearly half of law school classes – so there’s no lack of women in the pipeline.
• The Times editorial noted that female lawyers are paid 74% of what male lawyers are paid, and that a shocking 90% of women in the legal profession report experiencing sex discrimination.

Yesterday, the Senate confirmed Jane Triche-Milazzo to the Eastern District of Louisiana. At this point, there are 231 women serving as active federal judges, which represents just under 30% of active judges on the federal bench. The Appellate Daily blog recently posted some nifty charts showing that although men make up 49% of the population, they represent 70% of the federal judiciary. In contrast, the representation of women and minorities on the federal bench is significantly lower than their representation in the population.  And unfortunately, some of these percentages haven’t budged for awhile. Read more »

Last night, the Senate confirmed Bernice Bouie Donald to a seat on the Sixth Circuit Court of Appeals – adding diversity and excellence to that court. Judge Donald, who previously served as a federal district court judge in Tennessee, was confirmed by a vote of 96-2. She had the support of both home-state, Republican senators, and was voted out of the Judiciary Committee without opposition. Notwithstanding, her nomination did not receive a floor vote for four months because of the unprecedented obstruction of a minority of Senators. Read more »

As the lame duck session of Congress draws to a close, it's essential that the Senate confirm Goodwin Liu to the Ninth Circuit Court of Appeals. Read more »

Professor Liu is exceptionally qualified, possesses a brilliant legal mind, and has demonstrated his commitment to public service. He was unanimously rated “well-qualified” by the ABA’s Standing Committee on the Federal Judiciary and has bipartisan support. As Professor of Law and Associate Dean at U.C. Read more »