Gavel Grab

Archive for the ‘Court Jurisdiction’ Category

Sponsor Withdraws Tennessee Bill to Block Judicial Review

Tennessee state Sen. Mae Beavers (photo) withdrew her bill to block judicial review of laws enacted by the legislature (see Gavel Grab), after it came under fire from both political parties.

Senate Speaker Ron Ramsey, a Republican, was among outspoken critics of the proposal, according to an Associated Press article.

“That is crossing the line on separation of powers between the legislative and judicial branches,” Ramsey said. “Because we make the law and they interpret the law. If you don’t like what they’re coming down with, then you do everything you can to change the court.”

Democratic Sen. Roy Herron, a lawyer, raised the specter of a threat to fair and impartial courts.

“Democracy is threatened by those who would take away the independence of the judiciary,” he said. “We ought to look very carefully before the politicians begin to take away the independence of the judiciary in Tennessee.”

In Tennessee’s Republican-controlled legislature, Beavers’ proposal was one of several measures proposed that would affect the courts. Another would revise the procedures for disciplining judges (see Gavel Grab), and a third would move gradually toward a constitutional amendment to settle legal questions about the way appeals judges are chosen (see Gavel Grab) through merit selection. Read more

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Tennessee Legislator Seeks End to Judicial Review of Laws

Tennessee has become the second state, after New Hampshire, where lawmakers are considering proposals to prohibit  judicial review of legislation.

A bill introduced by Tennessee Senate Judiciary Committee Chairman Mae Beavers, a Republican, would strip Tennessee courts of the right to review the constitutionality of a law passed by the legislature, according to a column.

Under this arrangement no citizen of Tennessee could seek redress from the Courts and the Supreme Court of Tennessee would have no authority to strike down an unconstitutional law. Of course this is ridiculous, but it is an actual bill that some senators want passed,” Chattanooga lawyer Lee Davis wrote in The Chattanoogan about the proposal.

But the bill’s lead sponsor has a different view. “The executive, legislative and judicial branches were created separate but equal, but the judiciary has overstepped their bounds,” Beavers said, according to report by Stateline, an online news site of the Pew Center on the States. “They’re not just interpreting the law, but making policy.”

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NY Times Urges Judicial Review for Targeted Assassination

It is necessary to follow the rule of law and seek judicial review before targeting a U.S. citizen for assassination, a New York Times editorial declares, citing the recent armed drone killing of Muslim cleric Anwar al-Awlaki in Yemen.

The Obama administration “set aside Mr. Awlaki’s rights to due process,” the editorial asserts.  It says a detailed legal memorandum prepared by administration officials was not shared with Congress, and no judge or judicial panel passed judgment on it.

While “Mr. Awlaki was not entitled to full protections,” the editorial says, he was an American and was entitled to some. It urges:

“Due process means more than a military risk analysis. It requires unambiguous and public guidelines for how the United States will follow federal and international law in approving targeted killings, particularly of Americans. And it means taking the decision beyond the executive echo chamber. We have argued that judicial review is required, perhaps a closed-door court similar to the Foreign Intelligence Surveillance Court, before anyone, especially a citizen, is placed on an assassination list.”

The editorial is headlined, “Justifying the Killing of an American.” To learn more about protecting civil liberties in troubled times, see the JAS issues page on the topic.

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Court-Stripping Measure Advances in Congress

The House of Representatives has passed a bill to expedite decision-making on Gulf of Mexico drilling permits, and critics assailed a provision to funnel related civil suits to the Fifth U.S. Circuit Court of Appeals.

The provision would make it harder for some affected states to go after big oil companies in court, the critics were quoted as saying by a Talking Points Memo blog post.

Rep. Ted Deutch, D-Fla., contended Florida and Alabama would not be able to bring such lawsuits in federal district courts located in their states, and he said the Fifth Circuit has drawn criticism as close to oil companies. (The Fifth Circuit has jurisdiction over federal courts in Mississippi, Louisiana and Texas.) Deutch’s amendment to delete the provision was rejected.

“Congress has no business telling courts within a state that they are prohibited from considering issues involving a lease for energy development, production, and exploration that has the potential to cause irreparable environmental and economic damage to the Gulf coast area of that state,”  Deutch said while presenting his amendment, according to a Sun-Sentinel blog.

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9/11 Trial Plan Gets Mixed Editorial Reaction

In major newspapers, editorial reaction was decidedly mixed after Attorney General Eric Holder announced that accused 9/11 mastermind Khalid Shaikh Mohammed would be tried in a military commission at Guantanamo (see Gavel Grab).

“Cowardice Blocks the 9/11 Trial,” trumpeted the headline for a New York Times editorial. It lamented:

“Monday’s announcement represents a huge missed opportunity to prove the fairness of the federal court system and restore the nation’s reputation for providing justice for all.”

The editorial labeled the decision to retreat from holding a trial in a federal courtroom in New York City “a victory for Congressional pandering and an embarrassment for the Obama administration, which failed to stand up to it.”

But given the circumstances, it added, “Mr. Holder is right to push for a military trial for Mr. Mohammed, rather than let him linger in indefinite limbo.”

A Washington Post editorial applauded what it called the “Right call on Sept. 11 defendants, military trials.” The editorial asserted: Read more

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Lawmaker: Bar U.S. Courts From Ruling on Gay Marriage

A bill introduced in the House of Representatives would strip federal courts of authority to hear cases involving same-sex marriage.

Rep. Dan Burton, R-Ind., introduced the measure in response to the Obama administration’s recent decision to no longer defend the federal Defense of Marriage Act in court (see Gavel Grab), according to an article in The Hill newspaper.

“Activist judges, and now an activist president, have been trying to unilaterally define marriage for too long. This issue should instead be decided once and for all by the American people and the states,” Burton said.

His bill also would take away from the Supreme Court  appellate jurisdiction over same-sex marriage issues.

The legislation would, in effect, “avoid a situation in which the Obama administration declines to defend the Defense of Marriage Act in federal court, and [it] effectively leaves the matter to states,” the article reported. Read more

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IA Court-Stripping Bill on Marriage Licenses: Doomed?

Conservative Republicans in the Iowa House are pushing legislation to bar county recorders from issuing marriage licenses to gay couples — and also to tie the state Supreme Court’s hands from ruling on the issue.

The latter proposal is an example of what is called “court-stripping,” or denying a court jurisdiction to consider certain hot-button issues.

In Congress, court-stripping legislation has sought to bar courts from considering detainee rights, abortion, religion (Ten Commandments, school prayer), and same-sex marriage.

According to an Associated Press article, however, Republican leaders who control the House vowed they don’t have plans to debate the measure, and Democrats in charge of the Senate called the bill unconstitutional and in direct conflict with a state Supreme Court ruling on same-sex marriage.

Carolyn Jenison, executive director of One Iowa, blasted the bill as “reckless legislating at its worst,” according to a Des Moines Register article, and said it “attempts to strip authority from Iowa’s top court.”

Glen Massie, a sponsor of the bill, said the purpose of the legislation was to advocate Judeo Christian ethics as law.

Remarked Drake Law Professor Ian Bartrum, “It’s technically probably constitutional but it’s a pretty rare and radical step and probably an ill-advised one.” He said  a section of the state Constitution  permits the writing of laws to bypass state Supreme Court review. Read more

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NYC Bombing Attempt Nets Life Sentence

Faisal Shahzad, who had pleaded guilty to multiple charges in the attempted car bombing of New York City’s Times Square, was sentenced by a federal judge today to life in prison.

“The defeat of the U.S. is imminent, inshallah,” Shahzad said during his sentencing by U.S. District Judge Miriam Cedarbaum, according to a CNN  report.

His arrest sparked a renewed debate about the rights of accused terrorists (see Gavel Grab). But at least one analyst concluded today that the handling of Shahzad in federal courts was successful. Wrote Ben Smith in Politico:

“The swift conviction and life sentence for the attempted Times Square bomber Faisal Shazad looks, on its face, like a triumph for the civilian legal system’s ability to try terrorists. Shahzad was arrested, read his rights, tried, convicted, and sentenced, while other terror suspects languish in the troubled military commission system.  And opponents of military commissions certainly see it that way.”

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Debate Still Rages over Venue for Terror Detainees

Not so fast, former U.S. Attorney General Michael Mukasey argues in trying to shoot down an idea recently floated to try five defendants from the 9/11 attacks in a federal court that could be securely established at Guantanamo Bay (see Gavel Grab).

Mukasey, who served under President George W. Bush, raises numerous objections in a Washington Post op-ed. He contends that the anonymity of jurors chosen to hear cases at Guantanamo could not be protected; that the arrangement would pose too high a personal cost to jurors and a financial cost to the government; and that the rule of law would not be upheld by a civilian trial.

Concludes Mukasey, “In the short term, then, we have to work with the tool Congress fashioned: military commissions in Guantanamo, a remote, secure and humane location.”

Meanwhile, a Philadelphia Inquirer editorial takes sides in the fierce debate over the appropriate venue to try terror detainees. Read more

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NY Times: 'Things Can Get Worse' on Detainee Policies

Reflecting on Attorney General Eric Holder’s testimony before Congress, a New York Times editorial says progress has halted on the U.S. government’s defining detainee and terror-trial policies. It  urges President Obama to act boldly before further ground is lost.

The Times uses Holder’s testimony as a jumping-off point, describing his “struggle…to answer senators’ questions about the detention and trial of terrorism suspects.” That “made us nostalgic for the old days — back in 2009 — when the United States was making progress toward cleaning up the mess President George W. Bush made with his detention policies,” the editorial says.

Now, the Times contends, an unfortunate mix of factors has stalled the progress:

“All of that has stopped — because of Republican fear-mongering, administration blundering and Democratic not-in-my-backyardism. And unless President Obama grabs hold, things could get far worse.”

The editorial backs a presumption that terror suspects will be prosecuted in federal civilian courts. But Holder “blew the politics” of planning a New York trial in civilian court for accused 9/11 mastermind Khalid Shaikh Mohammed, it asserts. Read more

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