Monday, January 2, 2012

Plus Ca Change: 2011's Non-Events in Law and Justice

      Like the non-barking dog in the Sherlock Holmes story, many of the most significant legal developments in 2011 can be seen in the news that did not happen. Here are some of the past year’s most important non-events:
      Guantanamo; military commissions. The Guantanamo Bay prison camp remains in operation two years after President Obama’s original deadline for closing. Bipartisan legislation forced on Obama prevents bringing any of the remaining 170 prisoners to the United States for trial or transferring them to other countries. Meanwhile, the military tribunals favored by national security hawks for trying al Qaeda terrorists are stalled. Trials for the alleged 9/11 conspirators and U.S.S. Cole bomber will not be happening soon.
      Health care law challenges. The multiple challenges to the Affordable Care Act are due at the Supreme Court in March, but only after the legal attacks lost momentum in 2011. The excitement stirred by two trial-level rulings against the law in 2010 subsided as three out of four federal appeals courts upheld the law. Significantly, the legal arguments against the law were rejected by two leading conservative judges: Jeffrey Sutton on the Sixth Circuit and Laurence Silberman on the D.C. Circuit.
      Financial crisis accountability. The country is digging out of the hole created by the financial crisis of 2008, but the individuals and companies responsible for the economic meltdown for the most part have yet to be held legally accountable. No prominent executive has been prosecuted for the shenanigans that misled investors about the worth of toxic mortgages. And the Securities and Exchange Commission is taking flak for regulatory settlements that let banks off the hook for peanuts with no admission of misconduct.
      Immigration standoff. The immigration debates produced sound and fury, and several controversial laws being challenged in court, but it all signified very little. Immigration reform was a non-starter in Congress, even in a non-election year. The administration’s record number of deportations belied the attacks from critics, and the influx of undocumented aliens slowed with the slowing U.S. economy. State and local police seem unlikely to use new immigration enforcement powers even if the get-tough laws survive a Supreme Court test.
      Death penalty slowdown. Public opinion polls continue to register support for capital punishment, but the number of new death sentences fell to a record low of 78. That was the first time the number was below since capital punishment was reinstated in 1976. The number of executions also fell to 43, just half the number in 2000 (85). Straws in the wind — abolition in Illinois, a moratorium in Oregon— signaled further erosion of support for capital punishment in actual operation.
      Attacks on the courts. Newt Gingrich attacked federal judges with proposals for hauling judges before Congress to explain decisions or abolishing entire courts, like the Ninth Circuit, for wayward decision-making. The impact on Gingrich’s campaign remains to be seen, but the attacks drew little support — and sharp criticism from certified conservatives such as former Bush attorney general Michael Mukasey and former federal appeals court judge Michael McConnell. Gingrich’s proposals, Mukasey said, were “dangerous, ridiculous, totally irresponsible, outrageous, off the wall.”
      Supreme Court stasis. With a new justice for the second year in a row, Supreme Court watchers watched for changes, but the justices remained divided along predictable ideological fault lines. With a record three female justices, the court still dealt a severe blow to a major sex discrimination lawsuit against Wal-Mart. Justice Elena Kagan stirred interest with a pair of strongly written opinions, but they were dissents that could equally have been written by her predecessor, John Paul Stevens. And no new vacancies seemed likely in the near term.
      Football in court. The Penn State scandal brought overdue attention to the closed culture of college football, but pro and college football alike have yet to be held fully accountable for the predictable, debilitating injuries that players suffer from game-time concussions. Separate lawsuits charge the NFL and NCAA with failing to develop rules to effectively limit concussions and keep players off the field after suffering brain injuries. And the NFL is also under pressure to develop better compensation for former players with brain injuries.
      Judicial politics. The historic bipartisan agreement by the Senate’s so-called Gang of 14 in 2005 to end the threat of filibusters against federal judge nominees became a dead letter only six years later. The four Republican senators in the accord still in office all supported filibusters that blocked two Obama nominees, Goodwin Liu and Caitlin Halligan, who would have been confirmed if floor votes had been permitted. Along with the earlier GOP fights against Obama’s Supreme Court nominees, the new battles show that the judicial wars continue unabated.
      Gays in military. The “don’t ask, don’t tell” policy on gays in the military officially ended on Sept. 20, 2011, after President Obama and the Pentagon’s civilian and military chiefs certified the change would not affect military readiness. Issues of implementation remain, but despite dire warnings from anti-gay groups and some in the military the change itself went off without a hitch. Gen. James Amos, the Marine Corps chief who had resisted the change, said in November the issue came up only once when visiting troops in Iraq.
      "Plus ca change,” the French tell us, “plus c’est la meme chose.” So true in much of law and justice for 2011. Now, a new year begins.

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