Roundups Law and Policy

Gavel Drop: Showdowns Ahead Over Trump’s Judicial Nominees

Imani Gandy & Jessica Mason Pieklo

Republican nominees are skipping meetings with lawmakers on the other side of the aisle, and in New York, a fight is brewing over a big gig in Manhattan.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts.

Trump’s federal judiciary nominees are ignoring Senate Democrats, according to Seung Min Kim in Politico. Nominees simply aren’t meeting with Democrats who hold power. The fight over Trump’s picks to fill the numerous federal court vacancies is more about process than the merits of the nominees. The “blue slip” process allows a lawmaker to block a nominee from their state. The process is designed to be bipartisan, but conservatives are urging Senate Republicans to break with the tradition that gives deference to home state senators when it comes to filling vacancies in federal courts that sit in their states.

The White House is staging a showdown with New York Senators Kirsten Gillibrand and Chuck Schumer by including Geoffrey Berman in a package of proposed candidates to fill New York’s judicial and U.S. attorney vacancies. Berman, who is one of Rudy Giuliani’s law partners, is being considered to head the U.S. Attorney’s office in Manhattan. Considering the numerous lawsuits against Trump that are piling up, it is likely that some will be filed in the Southern District of New York—given Trump’s business dealings there—and will fall within Berman’s purview. Trump fired Preet Bharara, the last person to hold the job, in March after he refused to resign.

Ari Berman writes in Mother Jones that after conservatives’ success in weakening the Voting Rights Act, they have their eyes set on a new target: the National Voter Registration Act (NVRA). The NVRA makes it easier to register to vote at local offices of the Department of Motor Vehicles and other public agencies. In a key voting rights case in Ohio, the Sixth Circuit Court of Appeals ruled that the NVRA prohibits Ohio from purging its voter rolls of people who are registered but have not recently voted. The Obama administration backed the federal court’s position. The Trump administration, however, has reversed course. The U.S. Department of Justice (DOJ) filed an amicus brief in the Ohio case and concluded that the NVRA doesn’t prohibit states from using nonvoting as a reason to remove voters. When the purges begin, may the odds be ever in your favor!

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The Tenth Circuit Court of Appeals overturned the conviction and death sentence of Patrick Dwayne Murphy. Murphy challenged the Oklahoma state court’s jurisdiction, arguing that he should have been tried in federal court, not state court, “because he is an Indian and the offense occurred in Indian country.” The appellate court agreed.

Brooke “Skylar” Richardson, an 18-year-old Ohio woman, pleaded not guilty to charges stemming from the death of her infant, according to WCPO Cincinnati. Initially, Richardson was charged with reckless homicide after infant remains were discovered in her backyard in July. Prosecutors later added charges of voluntary manslaughter, endangering children, tampering with evidence, and gross abuse of a corpse. The Warren County prosecutor said he would not pursue a charge that could result in the death penalty. If convicted, Richardson faces a life sentence.

The Southern Poverty Law Center and the ACLU have filed a class action lawsuit alleging a kickback scheme between Judge Trudy White in East Baton Rouge, Louisiana, and Rehabilitation Home Incarceration (RHI). RHI provides pretrial monitoring services, such as ankle bracelets that pinpoint a person’s location using GPS technology. That was at a cost, of course: an initial fee of $525 and then additional fees of $225 a month for services that plaintiffs allege were never provided. RHI was also a major donor to Judge White’s campaign. Plaintiffs were forced to enroll in the program and pay the initial fee before East Baton Rouge jail officials would release them, even if the plaintiff had already posted bond. Plaintiffs allege they spent unnecessary weeks in prison because they weren’t permitted to leave jail until they paid RHI’s fee. And even after they’d paid the initial fee, if they didn’t pay their monthly fee, RHI staff would threaten them with rearrest. It’s an egregious case of exploiting prisoners for profit.

In the wake of the infamous Google memo that argued women are underrepresented in the tech sector due to biological differences, Brandeis professor Anita Hill writes in the New York Times about the toxic masculinity pervasive in Silicon Valley, arguing that women cannot wait for the tech industry to police itself or for the DOJ to intervene. Instead, Hill argues, women should file class action discrimination cases against employers. She points to successful class actions against Wall Street firms in the 1990s as an example. Although gender discrimination still exists, these class actions challenging systemic sexist practices on Wall Street led to more extensive human resources policies addressing sexual harassment and to more women advancing their careers into leadership roles. Move over, Google Bro. The women are talking.

Arizona Judge David K. Duncan ordered state Department of Corrections Director Charles Ryan to appear in court after hearing allegations that the DOC had retaliated against inmates who testified about substandard medical care in Arizona prisons. In scolding Ryan, Judge Duncan compared him to “the recently convicted sheriff in our county who thought he could do as he wished”—a reference to Joe Arpaio— and accused Ryan of having “disrespect for the rule of law.” 

Alabama Attorney General Steve Marshall filed a notice of appeal with the 11th Circuit in Reproductive Health Services v. Marshall, also known as the “lawyers for fetuses” case. The case challenges a law, HB 494, which permits the district attorney to participate in court proceedings set to determine whether a minor may obtain an abortion without parental consent. The law permits the judge to appoint an attorney for the fetus, which is absurd in and of itself, and allows the district attorney to appeal a ruling permitting a minor to obtain an abortion. Just last month, the insidiousness of Alabama’s law was evident after a district attorney appealed a court ruling permitting a 12-year-old rape victim to obtain an abortion. Fortunately, the Alabama Court of Civil Appeals upheld the lower court’s decision permitting the minor to end the pregnancy.

According to The 74, 137 K-12 schools have open Title IX investigations that have been overlooked as the debate over college campus sexual assault gained traction and led to guidance from the Obama-era Department of Education (DOE) on how Title IX cases should be handled. Trump’s secretary of education, Betsy DeVos, is planning a shift at the DOE’s civil rights division. She’s reportedly concerned that in resolving sexual assault allegations, “a system without due process ultimately serves no one in the end.” There’s debate about the standard of proof and what due process means in such cases. But advocates are also worried that DeVos and Candice Jackson, who is the acting head of the Office of Civil Rights (OCR), have bought into “rape myths”—that young women get drunk, have sex, regret it, and “cry” rape later—and their confidence in the OCR as an avenue for civil rights has waned as a result.

The Fifth Circuit Court of Appeals is permitting the family of a man who allegedly had a fatal heart attack after two Fort Worth, Texas, police officers threw him to the ground and tased him to proceed with their lawsuit. The lower court dismissed excessive force claims against the officers, contending that Jermaine Darden’s obesity was a pre-existing medical condition that increased the risk of death during his confrontation with the police. Darden was 340 pounds. The Fifth Circuit reversed, ruling that the lower court made a mistake in not applying the “eggshell skull” rule, which requires a tortfeasor—someone who commits a wrongful act that causes someone else an injury that can be remedied by law—to take a plaintiff as he or she finds them. The Fifth Circuit said that the victim’s health increased the risk of death during a struggle and that contributed to his death, but also said that he wouldn’t have died in the first place if the cops hadn’t tased him. DUH.

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