Caroline Fredrickson

by Jeremy Leaming

Senate Republicans bent on obstructing the Obama administration’s efforts to fill vacancies on the federal bench may be feeling a bit of pressure to back off their political agenda for the sake of one of the nation’s most powerful appeals courts.

Last month Republicans filibustered the president’s nomination of Caitlin Halligan to fill one of the four vacancies on the 11-member U.S. Court of Appeals for the District of Columbia Circuit. The president had tried numerous times to place Halligan, the general counsel for the Manhattan district attorney’s office, on the Court, but Senate Republicans refused to allow an up-or-down vote citing flimsy claims that she is a left-wing ideologue unfit to serve. Not long after the latest filibuster, Halligan withdrew her nomination. As NPR’s Carrie Johnson reports the appeals court, which hears of range of weighty constitutional matters, has more vacancies than any other appeals court circuit. (ACS President Caroline Fredrickson in an interview with NPR noted the partisan leaning of the D.C. appeals court and its importance in handling challenges to federal regulations. “The clean air that we breathe, we hope to breathe, the clean water that we’d like to drink [and] all the EPA regulations around climate change are subject to this court’s review. And this court has shown itself extraordinarily hostile to efforts to protect people from environmental dangers.”)

The Senate Judiciary Committee is scheduled to conduct an April 10 hearing to consider another Obama nominee to the D.C. appeals court circuit, Sri Srinivasan, the principal deputy solicitor general. Srinivasan was nominated to the D.C. Circuit nearly a year ago, but like Halligan, his nomination has faced Republican opposition. Srinivasan, born in India and raised in the U.S., has not been attacked as an ideologue for a seat on the federal bench, instead Sen. Chuck Grassley (R-Iowa), the Senate Judiciary Committee’s Ranking Member, has demanded information from the Department of Justice to determine whether Srinivasan was involved in the settlement of case involving city officials in St. Paul, Minn. (Grassley has suggested that city officials agreed to settle a case that could have resulted in a ruling weakening an enforcement provision of the Fair Housing Act in return for the DOJ’s agreement not to pursue and unrelated case. As The Blog of Legal Times reported earlier this year that Grassley has not suggested that Srinivasan “did anything inappropriate or improper,” but he wants to see more documentation to determine what, if any, role Srinivasan played.) If confirmed to the seat, Srinivasan would be the first South Asian to sit on the appeals court bench.

Yesterday, White House Press Secretary Jay Carney urged senators to move on the nomination. He called the Principal Deputy Solicitor General a “highly respected appellate advocate who as has spent a distinguished career litigating before the U.S. Supreme Court and the U.S. Court of Appeals, both in private practice and on behalf of the United States for both Democratic and Republican administrations.”

by Jeremy Leaming

As in Hollingsworth v. Perry, the Proposition 8 case, the U.S. Supreme Court justices in today’s consideration of the so-called Defense of Marriage Act dwelled on jurisdictional questions, before discussing the core constitutional concerns.

But a reading of the oral argument transcript in U.S. v. Windsor suggests a majority of justices may be ready to invalidate DOMA, but on narrow grounds, and likely not with a declaration that laws classifying lesbians and gay men for unequal treatment should be subjected to heightened scrutiny. Instead if the justices strike DOMA – and SCOTUSblog’s Lyle Denniston suggests that may be what happens – it likely will be on federalism grounds – that is the law encroaches on the states’ rights to regulate marriage.  

ACS President Caroline Fredrickson in a statement following oral argument said, “The federal government has a duty to protect Constitutional principles and values. The so-called Defense of Marriage Act, however, is an egregious affront to the Constitution’s guarantee of equal protection under the law. DOMA walls off lesbians and gay men from more than 1,000 federal government benefits, protections and rights. There is no rational reason for this law. The Supreme Court should reject it and establish a more rigorous test for similar laws.”

Before moving to the core of the case – a constitutional challenge to DOMA – several of the justices pelted lawyers with questions about whether the case should even be before the justices. (The Obama administration has stopped defending DOMA, calling it unconstitutional. But when the U.S. Court of Appeals for the Second Circuit ruled last year that DOMA’s cramped definition of marriage was unconstitutional, the administration appealed the opinion to the Supreme Court, where it argued against the law.) During oral argument, Chief Justice John Roberts Jr. took a shot at the administration’s handling of the case, saying that if the president thinks the law is unconstitutional then why doesn’t he “have the courage of his convictions" and not enforce the law, instead of saying, "'Oh, we'll wait till the Supreme Court tells us we have no choice.'"

After getting through the mind-numbing back-and-forth on standing questions, the justices turned to the constitutionality of DOMA, and it appeared that a majority was leaning toward killing it. Lawyers representing Edith S. Windsor the woman challenging DOMA, argued in their merits brief before the Supreme Court that laws like DOMA, which target lesbians and gay men for unequal treatment when challenged should be subjected to a heightened scrutiny. “This Court should apply heightened scrutiny to DOMA because it discriminates on the basis of sexual orientation,” the brief states. “Under heightened scrutiny, the federal government must at the very least show that the classification is ‘substantially related to the achievement of [important government objectives].’”