Editorials and Opinion
Judicial Selection in Congress’ Lame Duck Session (Indiana Law Journal , 02/20/15)
Carl Tobias: This Article first scrutinizes the Obama Administration confirmation and nomination processes. It then critically explores selection and concludes that Republican obstruction instigated the most open positions the longest time. Because this deficiency undermines swift, economical, and fair case resolution, the Article suggests ideas to promptly decrease the remaining unoccupied judgeships after the session commences.
Republican Inaction as Judicial Emergencies Jump (People For blog, 02/20/15)
"Texas now has seven judicial emergencies, more than a third of the national total. Two of them have nominees who should have advanced to the Senate floor last week, but were delayed when Republicans decided to delay the scheduled committee vote on four fully vetted district court nominees by two weeks simply because they could.
Another of the newly designated emergencies is in the Third Circuit. The good news is that district court judge L. Felipe Restrepo was nominated to fill this seat way back in November, and that he has the enthusiastic support of his home state senators, Democrat Bob Casey and Republican Pat Toomey. The bad news is that Chairman Grassley continues not to schedule a hearing for this highly qualified nominee (or any other)."
EDITORIAL: U.S. district judge makes wrong decision on immigration order (San Francisco Chronicle [CA], 02/19/15)
"In a surprising decision on Monday, a U.S. district judge in Texas, Andrew S. Hanen, ruled that President Obama’s executive actions on immigration can’t move forward. Hanen is a George W. Bush appointee who’s been critical of Obama’s immigration policies in the past. "
The Obama Years (New York Times, 02/19/15)
Charles M. Blow Op-Ed column: "One could argue that the Supreme Court — the judicial Divine Nine — has shaped the Obama presidency as much as Obama has. That’s not to say that he hasn’t done an amazing job of shaping the judiciary in this country himself. In addition to appointing two new members to the Supreme Court — both women, a first for any president — he has completely transformed the lower courts.... Toobin laid out the diversity of the Obama transformation .... This is huge."
Republicans Should Move Judicial Nominations Next Week (People For blog, 02/19/15)
"With the Republican-controlled Senate returning to town next week, one of the things they should turn their attention to is moving judicial nominations. Because vacancies are always opening up on the courts, the Senate has to confirm a number of judges just to keep even. So far in the 114th Congress, we are not keeping even.... the Judiciary Committee should vote these four nominees out, and the full Senate should promptly hold a confirmation vote.
It is also past time to hold hearings for people who were nominated more than three months ago, like Third Circuit nominee Luis Restrepo (nominated November 12)."
The most misleading statements in the judge’s ruling against Obama’s immigration plan (Washington Post, 02/19/15)
Wonkblog by Max Ehrenfreund: "A decision from the federal district court in Brownsville, Texas, has thrown the U.S. immigration system into chaos. As the Obama administration prepares an appeal in order to carry out its plan to grant a legal status to some four million undocumented immigrants, a close look at the opinion by Judge Andrew S. Hanen reveals some ... misleading or ill-informed passages."
EDITORIAL: Setback for immigrants sets back the nation (News & Observer [NC], 02/18/15)
" A last-minute decision by a federal judge in Texas has caused bitter disappointment for hundreds of thousands of undocumented immigrants who expected they would be able to apply for work permits and protection from deportation under a presidential executive action. Judge Andrew S. Hanen of Federal District Court for the Southern District of Texas issued an injunction Monday halting the executive action.... The development was an immediate setback for young undocumented immigrants, but it should discourage all who believe in the impartiality of courts and the decency of the American character. The injunction may well be dissolved on appeal, and in the long run the Obama administration is confident that the president has acted on solid legal ground. In the meantime, we have the spectacle of a judge who has been an outspoken critic of U.S. immigration policy straining to thwart the protections with the barest of legal support. the report said, it would lead to a $197 million increase in tax revenue over five years. Despite such reports, Hanen, an appointee of President George W. Bush, found that one of the states suing, Texas, would be harmed because it would have to meet the cost of issuing driver’s licenses to some undocumented immigrants. ... This sort of transparent politicking from the bench is increasingly common as conservatives ask the courts for what they cannot attain through legislation."
EDITORIAL: A Judge’s Assault on Immigration (New York Times, 02/18/15)
"Judge Hanen — who last month invoked a biblical flood in describing illegal immigration into that community — has spoken out aggressively against Mr. Obama’s immigration policy in the past, saying it “endangers America” and is “an open invitation to the most dangerous criminals in society.” Indeed, his earlier opinions were the reason Republican governors and attorneys general pushed to get their suit into his district.... He danced around the fundamental point — as the Supreme Court reiterated as recently as 2012 — that setting immigration policy is the prerogative of the federal government, not the states."
Op-Ed Texas judge's immigration ruling is full of legal holes (Los Angeles Times, 02/18/15)
Erwin Chemerinsky & Samuel Kleiner: "U.S. District Judge Andrew S. Hanen's decision to block the Obama plan to defer deportation for about 5 million immigrants here illegally ignores a basic principle of government: For better or worse, the executive branch of government always has discretion as to whether and how to enforce the law. The judge's lengthy opinion is wrong as a matter of law and, worse, is based on xenophobia and stereotypes about immigrants. It is very likely to be overturned by the U.S. 5th Circuit Court of Appeals and, if necessary, the Supreme Court.... Judge Hanen, appointed to the federal bench by George W. Bush, has the reputation of being especially conservative on immigration issues. That tone underlies his opinion, especially as he spoke of immigrants being “terrorists” and “criminals.”"
Editorial: Another step backward on immigration (Tampa Bay Times [FL], 02/18/15)
"President Barack Obama is right on the policy and probably right on the law but wrong on the politics. An activist federal judge in Texas ruled late Monday that Obama is wrong on the law and put the president's latest executive orders on immigration on hold.... Applications from those who came to the United States as children to remain here legally were to start being processed by the federal government today. Now those applicants, who live in our neighborhoods and work in our fields and businesses, are unfairly stuck in limbo.... Hanen is not exactly a neutral observer; the federal judge has been a critic of the Obama administration's approach to immigration in earlier rulings. ... a broad array of legal scholars and previous court opinions have found that the president has wide discretion to set immigration policy, even if Obama pushed the envelope in this case."
Editorial Immigration debate slowed by another partisan sideshow (Los Angeles Times, 02/18/15)
"A federal judge on Monday halted portions of President Obama's executive actions shielding more than 4 million immigrants in the country illegally from deportation. The administration has pledged to appeal. When it does, the courts should act with all due speed to reinstate the president's policies.
The judge's injunction adds yet another sideshow .... Hanen's argument is unconvincing. He criticized Obama's immigration enforcement policies in a previous, unrelated case, and he made it clear in this case that he is receptive to the claim that the government failed to follow proper regulatory procedures. The Obama administration counters persuasively — to us, if not to Hanen — that it acted properly and within its legal authority.
Ultimately, this is a partisan lawsuit and a partisan injunction, neither of which should stand."
EDITORIAL: Push ahead on immigration after judicial setback in Texas (Boston Globe, 02/18/15)
"At the eleventh hour, a federal judge in Texas earlier this week put up a roadblock that will temporarily prevent undocumented immigrants from applying for legal and deportation relief. Judge Andrew Hanen’s preliminary injunction, which puts President Obama’s immigration orders on hold, amounts to nitpicking over some procedural technicalities. ... Hanen’s contention that the policy imposes an undue burden on the states is a one-sided political argument, not any kind of proven fact. On the contrary, any costs of the deferred-deportation programs would likely be offset by their economic benefit, .... The 5th Court of Appeals should expedite the matter and issue a stay so that the programs can be launched."
EDITORIAL: The Post's View: Immigration policy, in limbo; Frustration with possible presidential overreach cannot justify judicial overreach (Washington Post, 02/18/15)
"TO THINK, as we do, that President Obama overstepped his authority by shielding more than 4 million illegal immigrants from deportation, with no assent from Congress, does not mean that a federal judge should have license to invalidate the president’s order on the basis of tendentious logic.
Yet that’s the effect of a ruling Monday by U.S. District Judge Andrew S. Hanen in Brownsville, Tex., whose well documented distaste for the Obama administration’s immigration policies explains why similarly predisposed Republican-led states turned to him for relief....Judge Hanen agreed with the states that their lawsuit cleared minimum procedural requirements and could go forward. He had to stretch so far to reach even that modest conclusion that we hope an appeals court will lift his stay while the case proceeds."
Editorial: Stalled order; Republicans continue to play politics with a difficult issue by finding their ideal judge. (Houston Chronicle, 02/18/15)
"Texas Gov. Greg Abbott and his Republican counterparts in 25 other states went venue-shopping not long ago, and on Monday night they got what they wanted when a federal judge based in Brownsville ruled against President Barack Obama's order shielding up to 5 million undocumented immigrants from deportation.... The ruling by Judge Andrew S. Hanen of Federal District Court for the Southern District of Texas, was no surprise. The George W. Bush appointee has issued several rulings in recent years that reflect his hard-line immigration views (thus the venue-shopping).... There's a good chance the Fifth Circuit will overturn Hanen's ruling."
Judge misread Obama’s immigration program (Miami Herald, 02/18/15)
Cass Sunstein: "Judge Andrew S. Hanen said, the Department of Homeland Security acted unlawfully because it did not allow the public to comment in advance. With this conclusion, Hanen almost certainly overreached. ... Judge Hanen was right to focus on the APA and the technical requirements of the law. But he got the technical argument wrong."
EDITORIAL: Speaker Boehner lands in a familiar spot (Akron Beacon Journal [OH], 02/18/15)
"The president acted carefully, using the discretion available to his office, deferring deportation for those who meet certain qualifications. On Monday, a federal judge in Texas put the president’s executive action on hold. Yet the ruling departs dramatically from the law and precedent."
Opinion: The judge immigration foes wanted; A flimsy immigration ruling (Washington Post, 02/18/15)
Ruth Marcus, Columnist: "[T]he opinion is worth noting for three reasons: first, what it says about the depressing politicization of the federal judiciary; second, and related, what it suggests about the conservative face of judicial activism; third, what its implications may be for the coming showdown on funding for the Department of Homeland Security. The New York Times report on the ruling contained a jarring phrase, describing its author, U.S. District Judge Andrew Hanen, as “an outspoken critic of the administration on immigration policy.” My instinct was that the reporter had gone too far in that characterization; surely, a federal judge — even a federal judge appointed by George W. Bush — could not fairly be described that way. Turns out, he can."
EDITORIAL: Thanks to an activist judge, Republicans have it both ways on immigration reform; Right hails blocking of reform plan (Sacramento Bee [CA] , 02/18/15)
"Political conservatives make a lot of hay about “activist” judges when it comes to rulings that counter their political beliefs, such as giving gay people the right to marry or maintaining the healthy separation of church and state. But they don’t seem to mind when that activism skews in their favor. That’s what happened on Monday when U.S. District Court Judge Andrew S. Hanen issued a temporary restraining order halting President Barack Obama’s executive action to defer deportations of millions of undocumented immigrants whose children are U.S. citizens or lawful residents, if they qualify and pay back taxes.... In fact, Hanen, of Brownsville, Texas, is the exemplar of an activist judge. Even before taking on this case, he has been outspoken about immigration and highly critical of Obama’s deportation policy. In his 123-page explanation of why he was granting a temporary injunction, he contorts logic to validate the spurious claims made by the 26 states, including Texas, suing to stop the president’s use of executive order on immigration. Hanen found the flimsiest of technicalities on which to hang this stay ... a minimal cost that would be offset by taxes those qualifying for the deferred action program would be required to pay."
EDITORIAL: Wildlife Slaughter Goes Unabated (New York Times, 02/15/15)
"The White House alert is noteworthy, but unfortunately the administration is allotting only a modest increase for funding and staffing ... This means there is scant likelihood of a letup in the smuggling frenzy ... These killings are not mere crimes of a lower order. The disappearance of priceless wildlife, sacrificed to the black market, is a blot on humanity and its management of life on earth."
EDITORIAL: Eagle pride: Attack brings reminder of need to stay vigilant. (Garden City Telegram [KS], 02/13/15)
"In 1972, the bald eagle finally was placed under protection of the Endangered Species Act. A ban on DDT and other changes helped the bird recover.
Nesting pairs rose to nearly 9,800 by 2007. The bald eagle became an endangered species success story, and was taken off the list.
The danger hasn’t vanished, however, and monitoring continues. Contaminants and habitat loss still pose a threat.... It’s an important part of our heritage.
Much work remains to ensure the bald eagle’s continued ascent, to include preservation of natural habitat, and stepped-up support for conservation and research."
Benched! The more things change… (Justice Watch, 02/12/15)
"In an interview with Iowa Public Radio, shortly after being named chair of the Senate Judiciary Committee, Senator Chuck Grassley, R-Iowa, said, “I have no reason to believe that the future is any different” for the committee.... He was right. Even with Senator Grassley as chair, Republican obstructionism continues in the Senate Judiciary Committee.... Without explanation, Senator Grassley held over the nominations of four federal judges and Attorney General nominee Loretta Lynch.
All four of the judicial nominees are uncontroversial. They would fill district court seats in Utah and Texas, and have the support of their home-state Republican senators on the committee."
Thursday is Test Day for Senate Judiciary Republicans (People For blog, 02/11/15)
"Tomorrow morning, we will learn more about how Chairman Chuck Grassley will run the Senate Judiciary Committee ... and whether Republicans will continue one of the indefensible forms of obstruction that they engaged in for six years while in the minority.... Committee rules let senators "hold over" (i.e., delay) committee votes without explanation. This was done during previous presidencies when a nominee was controversial or when senators needed more time to evaluate the nominee. But during the first six years of the Obama presidency, Republicans exercised this right for all but 12 of his judicial nominees, which was an unprecedented abuse of the rules. ... It's one thing to always demand a delay when you're never the one to have scheduled the votes. It would be another thing altogether for Republicans to routinely ask for delay when they're the ones putting people on the schedule in the first place.... Two of the Texas nominees would fill vacancies that have been officially designated as judicial emergencies by the Administrative Office of U.S. Courts. ... As for the nominees themselves, all four have the strong support of their home state senators, which is not unusual. But in this case, each of those home state senators is a Republican who is on the Judiciary Committee."
Editorial: Saving the monarchs, and more (Pocono Record [PA] , 02/10/15)
"$3.2 million is a drop in the bucket of the federal budget, and the effort may not accomplish much unless the U.S. Fish and Wildlife Service also classifies the monarch as a threatened species, as it deserves. ... Yet this iconic insect is really no more important than many more obscure species of plants and animals that are disappearing with alarming rapidity. ... Mother Nature is a complex web, humans only a part of it. Each species plays a unique role, and the fewer species that survive the more humans will rely on them for their own survival. Habitat protection will help the monarch, but the species would also benefit from the legal protection of being classified as threatened."
Waiting for 2015's First Confirmation (Bloomberg News, 02/05/15)
Jonathan Bernstein: "It’s about time someone gets confirmed. So far we have a goose egg ... Compare now with 2007, after Democrats won a new Senate majority during the seventh year of George W. Bush’s presidency.
By Feb. 5, 2007, the Senate had already confirmed five of Bush’s federal district court nominees. By the end of the month, it had approved two more district court selections and one appeals-court nominee. ... it’s important for the government to function smoothly, and that means filling vacancies."
Senate Democrats should be careful about their filibuster strategy (Washington Post, 02/04/15)
James Downie: "when President Obama took office, Republicans took obstruction to a new level, blocking even widely popular bills and judicial appointments. Then-Majority Leader Harry Reid (D-Nev.) was right to get rid of the filibusters for most federal nominees, allowing Democrats to finally fill long-vacant judgeships"
EDITORIAL: Out of the woods: Gov. Wolf revives sensible protection on drilling (Pittsburgh Post-Gazette [PA], 02/02/15)
"Former Gov. Ed Rendell in 2010 banned drilling on 800,000 acres of the most environmentally sensitive areas, those that provide habitats for rare and endangered species, host fragile ecosystems or contain old-growth forests. ... Four years later, former Gov. Tom Corbett revoked the ban, saying the land could be drilled as long as there was no long-term disturbance on the surface. Naturally, that set off a debate over what constituted a long term, and a court fight meant the $75 million worth of new leases that Mr. Corbett had hoped to tap never came to be.
With Mr. Wolf’s order, a reasonable boundary has been re-established between what is and what is not suitable land for drilling."
EDITORIAL: Captain Sam’s deserves protection (Post and Courier [SC], 02/01/15)
"Equally devastating would be the damage to wildlife habitat. Numerous shorebirds, including at least one endangered and one threatened species can be found on Captain Sam’s Spit. ... The legislature needs to stand strong and pass a law to preserve public beaches for the public and for the Lowcountry's extraordinary wildlife."
EDITORIAL: Offshore drilling would threaten the NC coast (News & Observer [NC], 02/01/15)
"The Obama administration’s plan to open the waters off the shores of Virginia, North Carolina, South Carolina and Georgia to offshore drilling puts North Carolina’s tourism and other industries at risk. There should be a strong legal and political push to keep oil rigs out of the Atlantic waters. Environmentalists and some communities on North Carolina’s coast will no doubt provide the legal objections.... Given the political clamor for drilling, North Carolina’s best protection from it happening may rely on the courts, findings that oil resources off the coast are scarce and a continuation of current low prices for oil. With those three factors involved, the drilling may never come to pass.... Given the reality of global warming and the memory of the 2010 Deepwater Horizon spill into the Gulf of Mexico, the time for such balance is past. The United States should be building to an energy future based on renewable sources without environmental hazards."