Elena Kagan Confirmed, but Other Qualified Judicial Nominees Still Stuck in the Senate
The Equal Justice Society congratulates Elena Kagan on her confirmation as Associate Justice to the U.S. Supreme Court. She will be the fourth woman to serve as a U.S. Supreme Court Justice. After she is sworn in tomorrow, the Supreme Court will have a record number of three women Justices.
In late June, EJS issued a brief summary endorsing Kagan and expressing our hopes and expectations for a new era on the Supreme Court, especially in the context of our work on the Intent Doctrine.
But other qualified nominees are still awaiting confirmation votes by the full Senate, even after being approved by the Senate Judiciary Committee.
As a recent editorial in the San Francisco Chronicle points out, the “federal trial and appeals courts are rife with vacancies. Just nine of Obama’s 22 appeals court nominations and 27 of his 63 trial court nominations have been confirmed by the Senate.”
Edward Chen and Goodwin Liu are just two of the many nominations still bottle-necked in the Senate.
Across the country, we need supporters to call Senate Majority Leader Harry Reid and insist that he break the logjam preventing these and other qualified nominees from being voted on the by full Senate.
Prop. 8 Ruled Unconstitutional: A Victory for Justice and Our Families
The Equal Justice Society celebrates the ruling today by U.S. District Court Judge Vaughn R. Walker that Proposition 8 is unconstitutional and violates the United States Constitution’s guarantees of due process and equal protection under the law.
According to Judge Walker: “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.” Download a PDF of the ruling.
Under the decision, same-sex couples are not immediately allowed to marry. Judge Walker will decide after August 6 whether to stay his order while the case is being appealed, or allow marriages to resume in the interim.
As a racial justice organization committed to working with others to ensure that the rights of all are expanded — especially those who have been historically denied equal protection under the law — the Equal Justice Society opposed Prop. 8.
Kate Kendell, executive director of the National Center for Lesbian Rights, and a member of the EJS board of directors, observed:
“[W]hile we should savor today’s victory, this is just another step in our journey to full justice and dignity for our lives and our choices-including the freedom to choose whether and whom to marry.
“We must continue to reach out and have conversations about our families and our lives with our friends, our loved ones, our allies. By sharing our stories, we win the hearts and minds of others who may not share our views, and create a world where all families are valued and respected as fully equal.”
Read Kate’s full statement here.
EJS Joins Lawyers’ Committee in Filing Brief with U.S. Supreme Court in Staub v. Proctor Hospital
The Equal Justice Society joined the Lawyers’ Committee for Civil Rights Under Law and AARP in filing an amicus brief (PDF available for download here) in the Supreme Court of the United States supporting the petitioner in Staub v. Proctor Hospital. The brief urges the Court to recognize employer liability for the unlawful bias of a supervisor if the bias was a significant motivating factor for an adverse employment practice, even if the ultimate decisionmaker – someone other than the supervisor — harbored no discriminatory motive toward the employee. This is an important question that Justice Alito also raised in the recent Supreme Court decision, Ricci v. DeStefano, but that has not yet been resolved.
The petitioner, Vincent Staub, a member of the Army Reserves, was a hospital technician at Proctor Hospital for fourteen years until his dismissal in 2004, which he argues was motivated by discrimination based on his military status. Multiple supervising officials were hostile towards Staub for his involvement in the military and although the Court of Appeals for the Seventh Circuit acknowledged that “there can be little dispute that… [Staub’s supervisor] didn’t like Staub, and that part of this animus flowed from his membership in the military,” the Court refused to recognize the animosity of nondecisionmakers, such as Staub’s supervisor, without a showing of “singular influence” over the ultimate decisionmaker, a different official who was responsible at the last stage for handing Staub his pink slip.
While singular influence could include concealing or fabricating relevant information given to the person who ultimately makes the decision to dismiss an employee, the Court stated that it would not matter if the information came from a potentially biased source as long as the decisionmaker appeared to conduct her own independent investigation.
By focusing on the ultimate decisionmaker, standards such as the one applied by the Court in Staub effectively legalize unlawful action in all phases of the decision-making process except the last stage. The amicus brief argues that a “motivating factor” standard should be applied in cases like these, similar to what is used in other cases involving protection against discrimination, like Title VII of the Civil Rights Act of 1964.
Just as Title VII protects against discrimination on the basis of race, sex, religion, national origin, or ethnicity, the Uniformed Services Employment and Reemployment Rights Act (USERRA) at issue in this case protects against discrimination on the basis of military status. Recognizing employer liability for adverse employment actions motivated by unlawful animus on the part of supervisors is important to prevent discrimination that may be occurring behind-the-scenes. To fully carry out the purposes of USERRA and Title VII, the whole employment process should be free from bias.
The law firm Fried, Frank, Harris, Shriver & Jacobson LLP and the Civil Rights Appellate Clinic at Pennsylvania State University Dickinson School of Law provided pro bono assistance.
Barbara Caulfield, Dorothy Ehrlich and Mona Tawatao Join EJS Board of Directors
The Equal Justice Society board of directors earlier this week approved the appointments of three new directors: former U.S. District Judge Barbara A. Caulfield, National ACLU Deputy Executive Director Dorothy M. Ehrlich and Legal Services of Northern California Regional Counsel Mona Tawatao.
Barbara, Dorothy and Mona join the existing directors:
- Board Chair Anthony Solana, Jr. (President and Chairperson, For People of Color, Inc.)
- John Bonifaz (Founder, National Voting Rights Institute)
- James J. Brosnahan (Senior Partner, Morrison & Foerster)
- Kate Kendell (Executive Director, National Center for Lesbian Rights)
- Eva Paterson (President, Equal Justice Society)
- Tobias Wolff (Professor of Law, University of Pennsylvania Law School)
- Eric Yamamoto (Professor of Law, University of Hawai`i School of Law)
EJS is thrilled to have many of the country’s top progressive leaders and advocates serve on our board, devoting significant time and expertise to help guide our initiatives and programs. Our impact is more meaningful because of the involvement of our board members and we thank each one of them for investing their time and resources into our organization.
Barbara A. Caulfield is the Managing Partner of the Silicon Valley office of Dewey & LeBoeuf LLP and Co-Chair of the firm’s Intellectual Property Litigation Group. She has experience in complex intellectual property litigation for pharmaceutical and biotechnology companies.
Prior to joining Dewey & LeBoeuf, Ms. Caulfield was the Executive Vice President and General Counsel for Affymetrix, Inc., a biotechnology company in the Silicon Valley. Before working at Affymetrix, Inc., she was a partner at a major international law firm, where she served as the San Francisco Litigation Partner-In-Charge from 1997-2001.
Previously, Ms. Caulfield served as a United States District Judge in the Northern District of California from 1991-1994. In addition, she has taught various courses at Northwestern Law School, University of California, Hasting College of Law and University of Oregon Law School.
She has also given lectures and instructed on trial advocacy programs around the country, including Harvard University Law School and the San Francisco Bar Association Advocacy Training Program.
Dorothy M. Ehrlich is Deputy Executive Director of the national American Civil Liberties Union, the nation’s premier defender of liberty and individual freedom.
Previously, Ehrlich served as Executive Director of the ACLU of Northern California, the largest ACLU affiliate in the nation, for 28 years.
Ehrlich has led civil liberties campaigns around reproductive rights, opposition to the death penalty, censorship, and civil rights, launched projects focused on youth, racial justice and reproductive rights. She was the driving force behind the affiliate’s vigorous response to the federal erosion of civil liberties since September 11, 2001.
An accomplished spokesperson and writer, Ehrlich has been a frequent contributor to KQED Radio’s Perspectives Series, the Daily Journal’s “Taking Liberties” column, the San Francisco Chronicle’s “Open Forum,” and other publications. Ehrlich has received civil rights leadership awards from the Asian Law Caucus and Equal Rights Advocates and was also honored with the Mario Cuomo Acts of Courage Award from Death Penalty Focus. She was awarded a Gerbode Fellowship in 1992.
Mona Tawatao has been a regional counsel with Legal Services of Northern California (LSNC) since October 1999. In this capacity, she directs LSNC’s major land use and housing advocacy in its 23 county service area. She is also a co-coordinator of LSNC’s Race Equity Project.
Ms. Tawatao has led numerous land use, housing and civil rights litigation and policy advocacy projects on the state and federal level in her current position and also previously, as a directing attorney with Neighborhood Legal Services in Los Angeles.
Ms. Tawatao is a visiting professor at UC Davis School of Law and serves on the boards of the Public Interest Law Project and the Advisory Editorial Board of the Clearinghouse Review. Ms. Tawatao received her J.D. from UCLA School of Law in 1986.
EJS Internet Access Restored
UPDATED JULY 9, 2:45 P.M. PT: Our office can now access the Internet after having been offline since Monday evening.
Emails to our staff sent after Monday evening were queued up and are now being delivered to our inboxes. It may take a few hours for all of the queued email to reach us.
Our access to the Internet and to external emails was abruptly cut off Monday evening when our service provider decided to make changes to our configuration without notifying us. We ended up spending the entire week trying to restore our service.
Thank you for your patience as we worked through this technical issue. We apologize for any inconvenience caused by our inability to respond to emails in a timely manner.
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Due to an error by our DSL provider, our Internet access in our EJS offices has been down the entire day.
Based on the information provided to us, we expect to be down throughout Wednesday, July 7, and possibly into Thursday.
During this time, our email is down and we are unable to access the Internet. If you emailed any of our staff after 11 p.m. PT on Monday, July 5, we did not yet receive that email, but it is likely queued up and will reach us when our internet access is restored.
Until we have our service restored, if you have an urgent matter, please call the appropriate staff member directly, or call our main line at 415-288-8700.
Thank you for your patience while we work through these connectivity issues.
Supreme Court Nominee Elena Kagan and the Intent Doctrine
Twenty years ago Supreme Court nominee Elena Kagan, like President Obama who nominated her, would have had little chance of such ascension in our society.
Because these are the types of gains that the Equal Justice Society champions-removing barriers based on race and gender so that our nation’s promise of equal opportunity and equality under the law can be realized for all people—EJS supports President Obama’s nomination of Elena Kagan to the Supreme Court. Her confirmation hearings began today.
Much has been said about the fact that Kagan clerked for Justice Thurgood Marshall, but Kagan does not seem afraid to shatter expectations, including people’s hopes that she might be Justice Marshall’s protégé.
Instead of asking whether Kagan will be the next Thurgood Marshall, which we cannot now know, we should assess her record on the issues Marshall championed, including eradicating structural exclusion and inequality.
As Kagan related in a law review article on Justice Marshall shortly after his death, his stories of growing up in segregated Baltimore and representing African-American defendants in criminal capital cases, as well as his prioritization of social reality, made a profound impression on her. Kagan was very aware of Marshall’s commitment to “eradicating entrenched inequality.”
Her vision of his legacy may reveal more about how she might act on the Supreme Court than what she wrote in the memoranda she churned out as clerk trying not only to analyze the law, but also to anticipate Justice Marshall’s take on the issues.
Although Kagan is certainly not a carbon copy of Justice Marshall, she clearly admired his “solicitude for the despised and disadvantaged.” EJS has studied her record and positions to ascertain what type of Supreme Court justice she would make, especially in regards to racial justice issues.
EJS has issued a brief summary (download PDF) of the good, the not-so-good, and EJS’s hopes and expectations for a new era on the Supreme Court.
EJS, Others File Brief with Sup. Ct. in Kasten v. Saint-Gobain Performance Plastics Corporation
The Equal Justice Society, the Lawyers’ Committee for Civil Rights and four other non-profit organizations filed an amicus brief (download PDF) in the Supreme Court of the United States seeking review of the Seventh Circuit Court of Appeals’ decision in Kasten v. Saint-Gobain Performance Plastics Corporation.
In Kasten, the petitioner argued that oral complaints should be protected under the anti-retaliation provision of the Fair Labor Standards Act, which says that employees who “file a complaint” are protected from retaliation. The Seventh Circuit disagreed, narrowly construing “filing” to include only tangible written documents so that oral complaints are excluded from protection under the anti-retaliation provision. The decision is contrary to the Department of Labor’s interpretation, Congress’s intent in passing FLSA, and the interpretations of many other circuit courts.
In supporting petitioner’s position, the amicus brief focuses on the value of informal problem-solving and the reality that many employers, as in Kasten, not only encourage, but also often require, oral complaints prior to formal filings or litigation. The brief points out the “perverse incentives” of a remedial mechanism that does not protect oral complaints and in the process ends up giving employers incentives to retaliate prior to the filing of a written complaint, when an employee first voices his or her concern. Finally, the brief urges deference to the Equal Employment Opportunity Commission’s and the Department of Labor’s interpretations of the anti-retaliation provision, protecting oral complaints as well as written ones.
The anti-retaliation provision of FLSA was intended to help ensure that employers complied with workplace standards by encouraging individual employees to report grievances without fear of suffering economic consequences such as job loss. FLSA was enacted in part to protect vulnerable populations who might not be able to file a formal written complaint and at the same time would be most in need of the statute’s protections. Victims of discrimination in particular, including those who are illiterate or non-English speaking and unable to file written complaints, should not be afraid to complain orally when their rights are being infringed upon in the workplace.
The other signatories to the brief are the Asian American Justice Center, Asian Pacific American Legal Center, National Partnership for Women and Families, and the National Women’s Law Center. Pro bono assistance was provided by the law firm Fried, Frank, Harris, Shriver & Jacobson LLP.