Judicial

The 112th Congress adjourned last week without reauthorizing the Violence Against Women Act (VAWA). The failure of Congress to pass either the Senate- or House-approved (S. 1925 or H.R. 4970) versions was the by-product both of partisan wrangling, as well as acerbic personal attacks that were later derided by the Huffington Post as “incendiary and extreme.”
 
But the last-ditch negotiations between Vice President Joe Biden and House Leader Eric Cantor side-stepped the most important question of all: Are VAWA-funded programs working?

In a year where we have seen much progress from the White House and from the Department of Justice in addressing the needs of lesbian, gay, bisexual, transgender and queer (LGBTQ) survivors of violence, there is one national body that has failed to act. The 112th Congress has left much undone and has been slow to compromise or propose solutions to a myriad of issues and concerns facing the country – including for LGBTQ survivors of violence.

Last month the United States Supreme Court granted certiorari on a pair of cases concerning the latest struggle for equality: gay marriage. The first is an appeal from the Second Circuit in which a three-judge panel, led by conservative appointee Chief Judge Dennis Jacobs, struck down Section 3 of the Defense of Marriage Act, which precludes federal recognition of same-sex marriages sanctioned at the state level. The second case — shepherded by the doyens of Supreme Court advocacy, David Boies and Ted Olson — arises from a Ninth Circuit ruling invalidating California’s controversial Proposition 8, a 2008 voter initiative that confines marriage to the union of a man and a woman.

One night in 1985, when Lavinia Masters was 13 years old, she said goodnight and went to sleep in her Dallas home. She awoke suddenly to find a knife at her throat and an intruder sexually assaulting her.
 
On an ordinary Monday afternoon in 1996, Kristin Yorke was at home in New York City when her roommate returned from work. Unbeknownst to them both, a stranger lurked, forced his way into their apartment and raped both women.

In August, Northern District of California Judge James Ware retired after two decades of service, leaving the court with four vacancies in 14 judgeships. The huge caseload prompted the U.S. Courts to declare all four “emergencies.” Because these openings, which constitute 28 percent of Northern District seats, erode justice, President Barack Obama must quickly nominate, and senators expeditiously approve, judges for the court.

Obama has assiduously pursued guidance from Republican and Democratic officials where vacancies arise prior to nominations. He has recommended nominees of even temperament, who are intelligent, ethical, hard working, independent and diverse in terms of ethnicity, gender and ideology. Northern District Judges Edward Chen and Lucy Koh are quintessential illustrations.

Now that the Senate is nearing the conclusion of its lame duck session after President Barack Obama secured a second term and Democrats increased their Senate majority, it is appropriate to analyze court appointments. The judiciary experiences 60 vacancies in the 679 district court judgeships, two of which are Middle District of Pennsylvania openings. Thus, President Obama must promptly nominate, and the Senate swiftly approve, nominees, so that judges can dispense justice.

In March, Central District of California Judge Valerie Fairbank took senior status following five years of service. Her action left the Central District with three vacancies in 21 judgeships. The Administrative Office of the U.S. Courts has denominated all three emergencies due to the burgeoning, complex caseload. These vacancies, which comprise 14 percent of the Central District posts, restrict the delivery of justice. Therefore, the Senate must promptly approve President Barack Obama’s three nominees, so the court can operate well.

Any business run like the federal criminal justice system would fail. Businesses understand that survival depends on generating a return on investment. However, a new report released today by the Urban Institute Justice Policy Center reveals that the federal criminal justice system has a massive resource allocation problem.
 
The Bureau of Prison’s (BOP) budget is swelling. President Obama’s FY 2013 budget requests $6.9 billion for BOP — over a quarter of the total Department of Justice budget. This massive spending will house over 217,000 federal prisoners — a number expected to continue to rise.

Why isn't the Federal Trade Commission (FTC) holding Google to the same "honest broker" standard to which it holds every other company in the U.S. economy?
 
After an eighteen-month investigation of the most extensive alleged "deceptive and unfair business practices" in FTC history, FTC investigators recommended the FTC prosecute Google for deceptive search bias in a 100-page memo. That recommendation built upon the evidence collected by a bipartisan Senate Antitrust Subcommittee investigation of Google search bias last year. In addition last May, the European Commission concluded Google's search bias is illegal.

As President Obama’s first term wore on, a signature plank of his 2008 campaign – his pledge to close Guantánamo – went from policy pillar to policy pariah. The political and popular hurdles to closure – legislation, funding restrictions, outcry in some quarters over terrorist trials – multiplied. The President’s bold act on his first day of office -- an executive order requiring closure of the detention center within the year -- gave way to the ratification of military commissions as an alternative to trials in federal courts, detention without charge was embraced, and transfers from the facility slowed to a trickle.  

After going mum on the topic for most of his 2012 campaign, Obama finally renewed his pledge to close Guantánamo during an appearance on the Daily Show with Jon Stewart show in late October. This pledge will be put to the test even before his second term begins. The reauthorization of the National Defense Authorization Act, soon due for a final vote in Congress, will either offer the president more leeway to restart the machinery of Guantánamo closure, or offer another excuse to maintain the current paralysis. If the president’s campaign pledge means more this time around than it did in 2008, he must use the mandate he won in early November to veto this year’s NDAA if it hinders progress on Guantánamo.

Like a hard calculus equation, the conundrum of what to do with the 166 detainees still housed at Guantánamo is best addressed by breaking the problem into parts and solving them one by one. The obvious starting point is the 55 Guantánamo detainees who the administration named this September as cleared for transfer. Many of these men have been held in the facility for a decade or more where there are no grounds for continued detention. These are the relatively easy cases, men who the administration has no intent to charge with any crime. While the details of many of the cases remain secret, some Guantánamo experts assert that many if not all of these men may be cleared for release entirely, meaning that they are entitled to their freedom yet remain captive.

One well-known example in this group is Shaker Amer. He is a U.K. citizen, and the British government has repeatedly requested his transfer to be reunited with his wife and children in London. He remains held without charge. He said back in November 2005 that, "I am dying here every day, mentally and physically... We have been ignored, locked up in the middle of the ocean for four years."

Three elements are critical right now to advance the transfer of the Guantánamo 55 and help close Guantánamo.