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Judith E. Schaeffer
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Judith E. Schaeffer is Vice President of Constitutional Accountability Center.

Entries by Judith E. Schaeffer

Why Judge Garland Deserves a Hearing

(25) Comments | Posted April 2, 2016 | 1:33 PM

Senator Jerry Moran Was In Favor Of Hearings for Merrick Garland Before He Was Against Them

Well, that was quick. About a week ago, Senator Jerry Moran (R-Kan.) broke with the Senate's Republican leadership by saying he was in favor of giving Supreme Court nominee Merrick Garland a...

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Senator McConnell's Partisan Supreme Court Smokescreen

(12) Comments | Posted February 14, 2016 | 10:08 AM

Senate Majority Leader Mitch McConnell's (R-Ky.) immediate reaction on Saturday to the news of the death of Supreme Court Justice Antonin Scalia was a knee jerk, hyper-partisan announcement, an obstructionist claim that the Senate should not act on any nominee submitted by President Obama but instead should leave the Court...

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Kim Davis Doesn't Get to Rewrite the Law

(0) Comments | Posted September 4, 2015 | 3:29 PM

Back in 2004, my partner and I drove from our home in Virginia to Toronto, Canada, in order to get married. As a lesbian couple, there was no place in our own country where we could marry, and, having been together for 26 years, we were tired of waiting for...

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Senate Leaders on Target to Break Obstruction Record

(48) Comments | Posted August 24, 2015 | 10:17 AM

On August 7, the Senate left town for its month-long summer recess, a pretty long break for lawmakers who have accomplished so little. In terms of meeting its constitutional responsibility to fill judicial vacancies, the Senate has confirmed a whopping total of five new federal judges to date this year....

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Who Will Be the First?

(0) Comments | Posted May 22, 2014 | 1:04 PM

Since December, when U.S. District Judge Robert Shelby declared that Utah's refusal to allow same-sex couples to marry is unconstitutional, similar rulings by judges in other states across the country have been coming fast and furious. This week alone, judges in Oregon and Pennsylvania struck down those states'...

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D.C. Circuit Nominee Caitlin Halligan -- A Model of Legal Restraint

(5) Comments | Posted December 3, 2011 | 10:14 AM

Picture this: It's early 2004, San Francisco Mayor Gavin Newsom has drawn national attention to the struggle of same-sex couples for marriage equality by ordering the city clerk to issue marriage licenses to same-sex couples, and now in-house lawyers for several municipalities in the state of New York have asked...

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"Judicial Emergency": Goodwin Liu's Nomination Hits One Year

(0) Comments | Posted February 28, 2011 | 10:36 AM

On February 24, 2010, President Obama nominated the well-qualified and highly regarded legal scholar Goodwin Liu, Associate Dean and Professor at Berkeley Law School, to fill a seat on the Ninth Circuit, one of the busiest appellate courts in the country. Despite being voted out of the Judiciary Committee in...

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Remembering Our Imperfect Constitution

(12) Comments | Posted January 14, 2011 | 9:40 AM

With Martin Luther King, Jr. Day coming up this Monday, January 17th, Americans across the country will be celebrating the birth of the great civil rights leader and also enjoying a three-day weekend. But this weekend also brings us another important, albeit far less happy, moment in our Nation's history,...

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Prop 8 Oral Argument Liveblog

(28) Comments | Posted December 3, 2010 | 8:19 AM

Scroll down for background and preview of what to expect.

Marriage equality for same-sex couples will be front and center this Monday, December 6, as the U.S. Court of Appeals for the Ninth Circuit in San Francisco hears oral argument in the appeal of the federal District Court ruling striking down California's infamous Proposition 8, a ballot measure that amended the state Constitution to prohibit same-sex couples from marrying. The argument will be broadcast live on C-SPAN starting at 1pm Eastern/10am Pacific. My organization, Constitutional Accountability Center (CAC), has filed a friend of the court brief in this case in support of the ruling invalidating Prop 8, and my colleague Elizabeth Wydra (CAC's Chief Counsel) and I will be "live blogging" the argument right here on Huffington Post as soon as things get underway. Whether or not you can get to a TV, we hope you'll join us on Monday, as we discuss the proceedings, live. For now, here's a short preview of the case and what to expect during the argument.

The case itself, Perry v. Schwarzenegger, was brought by interesting legal bedfellows -- Ted Olson and David Boies - who famously squared off against each other in Bush v. Gore and have since joined forces to represent the same-sex couples who have challenged Prop 8. (We expect that both Olson and Boies -- two of the country's best appellate advocates -- will be sharing argument time on Monday.) For gay men and lesbians, the stakes in Perry could not be higher. Unlike other marriage cases that have been decided under state Constitutions and thus did not present issues of federal law that could be heard by the U.S. Supreme Court, at issue in Perry is whether the denial of marriage equality violates the U.S. Constitution. In August, District Judge Vaughn Walker, after a full trial on the merits, held that it does, and struck down Prop 8 as a violation of the equal protection and due process rights of same-sex couples under the Constitution's 14th Amendment. This means that if the Ninth Circuit rules on this issue one way or the other, the case could be headed to the Supreme Court.

But the Ninth Circuit may not even reach the merits, given a legal doctrine known as "standing," which in the context of this appeal would typically require those seeking to overturn Judge Walker's ruling to show that they would be harmed by it. The state of California declined to defend Prop 8, and its proponents intervened in the case in order to provide a defense. Thus, as a threshold matter, the Ninth Circuit will need to decide whether the sponsors of a ballot measure have the requisite "standing" to pursue an appeal of a ruling holding that the measure is unconstitutional.

The Court of Appeals has already indicated it intends to give lengthy consideration on Monday to all of these issues. In fact, before you tune in, be sure you've had a good meal. As oral arguments go, this one will be a marathon: the court has allotted a full two hours to hear the case, more than double the Ninth Circuit's usual argument time of 20 to 40 minutes per case. The first hour will be devoted to the issue of "standing," and the second to the merits of Judge Walker's ruling. Undoubtedly, unless you are a legal geek, you may not find the first hour of Monday's oral argument as fascinating as the second, but Elizabeth and I will do our best to liven it up.

Once we get to the second hour, expect to hear Prop 8 's supporters use the word "procreation" repeatedly -- their main argument is that prohibiting same-sex couples from marrying is rationally related to the state's interest in "responsible procreation and childrearing." (If that makes no sense to you, you aren't alone; it made none to Judge Walker.) For their part, Prop 8's opponents will be focused on "equality," and the fact that Prop 8 discriminatorily denies gay men and lesbians the right to marry, in violation of the 14th Amendment. Indeed, as we demonstrated in CAC's amicus brief, the Framers of the 14th Amendment considered the right to marry the person of one's choice to be a fundamental right, fully protected by that Amendment's Equal Protection Clause -- a right the Supreme Court finally vindicated for interracial couples in 1967, in the landmark case Loving v. Virginia.

With marriage equality hanging in the balance for same-sex couples, don't miss the chance to witness history in the making. We hope to see you right back here on Monday at 1pm Eastern/10am Pacific!

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What's Good for One Lame Duck Ought to be Good for Another

(1) Comments | Posted November 11, 2010 | 12:25 PM

When the Senate returns to town next week for its post-election "lame duck" session, it will find 23 of President Obama's judicial nominees who had been voted favorably out of the Judiciary Committee exactly where the Senate left them in September -- still languishing on the Senate floor, waiting for...

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On the First Monday in October, We Must Not Forget About the Other Federal Courts

(1) Comments | Posted September 30, 2010 | 12:12 PM

On October 4, this year's proverbial "first Monday in October," the eyes of court-watchers around the country will be trained on the Supreme Court, not only because the Court will be starting a new Term, but also because it will be doing so with a new Justice on the bench....

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Kimberly Mueller: A Poster Child for Republican Obstruction of Judicial Nominees

(14) Comments | Posted September 7, 2010 | 4:16 PM

In a recent, important speech before the Ninth Circuit Judicial Conference, Supreme Court Justice Anthony Kennedy decried the growing crisis in our nation's federal courts caused by an increasingly insufficient number of judges available to dispense justice to the American people. Justice Kennedy not only urged Congress to...

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Can Orrin Hatch Count Past Two?

(0) Comments | Posted July 15, 2010 | 11:37 AM

This weekend, Senator Orrin Hatch (R-UT), a member and former Chair of the Senate Judiciary Committee, published an op-ed setting out his "case" against the confirmation of Supreme Court nominee Elena Kagan, who currently serves as Solicitor General of the United States. The Senator's op-ed was mostly unremarkable, pretty...

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Conservative Columnist Invents Supreme Court Ruling to Attack Sotomayor

(10) Comments | Posted July 1, 2009 | 2:57 PM

[Updated below]

In a piece here in today's National Review Online, Thomas Sowell, a prominent conservative columnist, attacks Supreme Court nominee Sonia Sotomayor for what he claims is poor performance as a judge on her part because, by his count, the Supreme Court has reversed four of six Second...

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So Senator Sessions Doesn't Want a Judge Who Follows the Law?

(17) Comments | Posted June 24, 2009 | 11:25 AM

Yesterday morning, several Republican Senators took to the Senate floor to make speeches outlining their "concerns" about Supreme Court nominee Sonia Sotomayor. By and large, the speeches were entirely predictable, and if I'd been playing a drinking game keyed to mention of Judge Sotomayor's "wise Latina woman" remark, I'd have...

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Five Years Later: Decriminalizing Gay People -- Another Reminder of the Importance of the Supreme Court

(3) Comments | Posted June 26, 2008 | 11:04 AM

Many people probably don't recall much, if anything, about June 26, 2003, but I recall a great deal. That's because it's the day on which the Supreme Court issued one of its most important rulings in the area of individual rights and human dignity. In Lawrence v. Texas, a sharply...

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Five Years Later: Decriminalizing Gay People -- Another Reminder of the Importance of the Supreme Court

(3) Comments | Posted June 25, 2008 | 6:46 PM

Many people probably don't recall much, if anything, about June 26, 2003, but I recall a great deal. That's because it's the day on which the Supreme Court issued one of its most important rulings in the area of individual rights and human dignity. In Lawrence v. Texas, a sharply...

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President Bush Tries Once Again to Close the Courthouse Doors, This Time to Shield Domestic Spying

(0) Comments | Posted August 16, 2007 | 5:54 PM

On Wednesday, a federal court of appeals in California heard oral argument in a case involving the Bush administration's spying on Americans, Hepting v. AT&T. The plaintiffs have charged that AT&T illegally cooperated with the Administration's unlawful, warrantless surveillance of Americans. But if President Bush has his way, no...

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The Right-Wing Roberts Court Hits Its Stride

(6) Comments | Posted June 28, 2007 | 4:36 PM

Now that President Bush's Supreme Court nominees, Chief Justice John Roberts and Justice Samuel Alito, have completed their first full term together, it's time to survey the damage they have wrought. In one 5-4 ruling after another, the Court took a scalpel to Americans' rights and liberties and racked up...

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What Cheney's New Grandchild Has to Do with a Bush Judicial Nominee

(9) Comments | Posted May 31, 2007 | 5:44 PM

By now, most people have seen the photo of a beaming Dick Cheney and his wife, Lynne, holding their newborn grandson, Samuel. Baby Samuel was born on May 23 to the Cheneys' lesbian daughter, Mary, and her partner, Heather Poe. By all accounts, Dick Cheney and Mary are very close,...

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