Constitutional Law Professor Verna Williams Pens Editorial on Merrick Garland Supreme Court Nomination
U.S. Senate Majority Leader Mitch McConnell insists that Republican refusal to act on President Obama’s nomination of Merrick Garland to the Supreme Court is based on principle. Lawmakers merely are continuing to follow the Biden rule. This declaration suggests that, rather than engaging in unparalleled obstructionism, Republican senators are observing one of their esteemed traditions, like eating bean soup in the Capitol cafeteria.
But, the full text of Biden’s 1992 speech on the Senate floor suggests otherwise.
It was late June. The nation and Senate were recovering from bruising hearings to confirm Clarence Thomas. Re-examining the Judiciary Committee’s handling of professor Anita Hill’s allegations of sexual harassment, Biden explained that “many questioned whether we took professor Hill’s charges seriously, investigated them thoroughly, and disseminated them appropriately.” While Biden concluded that he and his colleagues had done their best, given Hill’s desire for confidentiality, he nonetheless believed a new set of rules should apply going forward. He announced that the committee would:
- Advise sources that any information the committee obtained would be placed in a nominee’s FBI file and be available on a confidential basis to the Senate before voting on the nomination.
- Hold closed, confidential sessions about all Supreme Court nominees.
- Meet routinely with nominees in closed session, on the record, and under oath about any investigative charges.
Throughout the process, senators would be able to review any documents, reports or transcripts in a manner that protected confidentiality.
Those are the Biden rules; they appear toward the end of his speech.
Conspicuously absent in that context, in which Biden clearly is setting forth how the Judiciary Committee would do business, is any suggestion that it would abandon its constitutional duty to engage in the confirmation process during an election year. But, in discussing the history of such nominations, Biden noted that when a president sought to appoint a justice in the summer or fall of an election year – just a few months before the election – that typically resulted in failure. In contrast, when the president selected candidates before the summer, the Senate confirmed them.
Not a rule. An observation.
Assuming it applies to the current situation, as Republican senators suggest, Biden’s statement actually supports the Senate doing its job in this case.
Out of a 20-page speech, Republicans selected one sentence from a 20-page speech and declared it the Biden rule, the one they were following. But another playbook informs their actions.
That term refers to Southern refusal to abide by the Supreme Court’s decision in Brown v. Board of Education, a particularly shameful chapter in our history.
Stunned by the court’s action finally striking down Jim Crow, the Virginia General Assembly met in special session to address what it viewed as an incursion on states’ rights. Columnist James Kilpatrick advised lawmakers that interposition supported repudiating federal authority. Gov. Thomas Stanley denounced the court’s actions as unlawful and unconstitutional. Buoyed by U.S. Sen. Harry Byrd, Stanley established a commission to determine how to respond. Just as today, the shutdown was a favored strategy. Virginia’s Prince Edward County, an A student in this regard, stopped levying taxes for education and kept its schools closed for five years.
Like Virginia’s post-Brown lawmakers, today’s Republicans confront the prospect of the social order upending. Obama, whom McConnell pledged to make a one-term president, now has the opportunity to change the highest court in the land for generations to come. Like Virginia’s lawmakers of that period, today’s senators responded to the threat Obama poses by declaring his actions as unconstitutional, illegitimate and overreaching. And, like those lawmakers of yore, senators threw a wrench in the workings of government instead of accepting an outcome they disliked.
And, just like Virginia’s lawmakers, these senators are wrong.
They would do themselves, the nation and the Supreme Court a service by turning to the right playbook this time. The one Utah Sen. Orrin Hatch has written about at length.
As published by Cincinnati.com on March 22, 2016.
Eric Kearney Named CEO of African American Chamber
CEO Sean Rugless is leaving the Greater Cincinnati/Northern Kentucky African American Chamber of Commerce to start his own consulting firm and former state Sen. Eric Kearney will replace him, the group announced Thursday.
Kearney, an attorney, was the Democratic leader in the Ohio Senate and before entering politics Kearney co-owned owned Sesh Communications with his wife, Jan-Michele Lemon Kearney, which publishes the Cincinnati Herald, the Northern Kentucky Herald and the Dayton Defender newspapers.
“I am humbled and excited to work in this role,” Eric Kearney said. “I look forward to working with our stakeholders and membership to connect opportunities that drive positive business outcomes.”
Kearney was selected by Democratic gubernatorial nominee Ed FitzGerald to be his running mate in 2013, but later left the ticket after news reports about back taxes owed by Sesh Communications. The company disputed some of the taxes it was said to owe.
Rugless will launch the Katalyst Group, a strategic consulting and branding firm.
The African American chamber “has grown to be an important economic partner and is perfectly positioned to ensure success for its members,” Rugless said. “The same entrepreneurial spirit that ignites our members has fueled my dream of working with clients to enhance business models, connect with consumers and provide business solutions to their specific marketing challenges.”
As published on Cincinnati Business Courier on March 24, 2016
Law Alum, Cincinnati Bengals EVP Katie Blackburn featured in Cincinnati Enquirer Profile
BOCA RATON, Florida – In the annual National Football League meetings at the Boca Raton Resort and Club, which sits just off Lake Boca Raton, league coaches and executives conducted various forms of league business, from the consideration and institution of new rules to larger-scale topics such as the placement of a franchise in Europe.
When these topics are discussed formally within the offset meeting rooms inside the 90-year-old hotel, the talks come in the form of the league’s four labor committees, six football operations committees, seven finance committees and nine business committees.
The Cincinnati Bengals are represented within five of those groups. Owner and president Mike Brown sits on the management council executive committee for labor, while executive vice president Katie Blackburn is the chairwoman of the eight-person workplace diversity committee and the Super Bowl advisory committee. She also sits on the CBA player benefit plans committee. Vice president Troy Blackburn sits on the employee benefits committee.
The membership with those miniature associations may not seem that momentous on the surface in 2016, especially for Katie Blackburn. She is not the only woman in these groups – Dallas’ Charlotte Anderson (chair of the NFL Foundation and conduct), Cleveland’s Dee Haslam (legislative and conduct), Tennessee’s Jenneen Kaufman (employee benefits committee), Buffalo’s Kim Pegula (Super Bowl advisory, NFL Foundation) and Denise DeBartolo-York (Hall of Fame) all have prominent roles.
But, Blackburn’s role as chairwoman of two very important committees isn’t to be overlooked.“While I was in the league, I served on several committees, and it was quite apparent to me that the league puts considerable thought into who chairs its committees,” said Amy Trask, an NFL analyst for CBS Sports who was the first woman to be named chief executive officer of a franchise when she took that position in Oakland in 1997.
“Committees are very important within the structure of the league. And I don’t believe that the league would appoint as chairperson someone in whom it didn’t have tremendous faith.”
And it is Blackburn’s role on the workplace diversity committee that has earned her more attention than usual over the last two months. It began when NFL commissioner Roger Goodell said at the Super Bowl that the “Rooney rule,” in which at least one minority candidate must be interviewed for coaching and executive football positions, will also include women when it comes to openings in the league office.
According to an Enquirer profile in 2000, Blackburn became the first woman in NFL front offices to handle player contract negotiations, and her standing in the league has only grown in import since.“I think she is (an important voice),” said New York Giants owner John Mara, who is on the diversity committee.
“She does a great job heading up that committee. I think the diversity committee has made some great strides. The league has made some great strides over the last few years in terms of having a more diverse workforce, and I think she should get a lot credit for that.”
Blackburn has always been reticent to speak about herself, especially when the spotlight of league business turns her direction and highlights some pioneering aspects of her career. “No, I mean, I don’t look at it so much that way,” she told The Enquirer quietly in a foyer just off a breezeway at the resort. “I just view it as really trying to get people to do things that are in overall best interest of everyone. But I don’t like to think of it as pioneering because there are so many other people who have done way, so much more. I couldn’t even put myself in the same category.”
But make no mistake; she commands an important place in the league and is viewed that way in ownership circles.“I think she’s very respected around the league,” said Mara, who acknowledged that Brown remains active and vocal in league matters. “She’s been around long enough and has her own qualifications. She’s very bright. When she speaks, she’s always very articulate, very intelligent, so people know who she is and people respect her.” As for the inclusion of women as part of the Rooney Rule, Blackburn notes that it does not apply to each individual team – but it may serve each organization to think along those lines regardless.
“It’s a great best practice for every team to use because you’re going to look at a wider array of candidates and hopefully get a better person to fill any position that’s open,” she said. “So I think in the long run it does work best if people actually implement it. But I think it’s been put in front of people enough that people are doing wider searches and interviewing more diversely for openings, so I think they are doing it.”
With that, the conversation about her ended, and she smiled as she moved toward the elevator.But Blackburn’s role as the chair of such an important committee during a time when diversity and inclusion are at the forefront in many workplace discussions only indicates she will continue to be a strong presence within the league – even if her voice isn’t resonating publicly.
“Katie can be as important a voice as she chooses to be, and that’s entirely up to Katie – to state the obvious,” Trask said. “If Katie wishes to be a voice, she will be tremendous. If she opts not to, that’s her decision. “As Polonius said in Hamlet, he said to Laertes, ‘To thine own self be true,’ and Katie is going to make the decision that is best for her and the Bengals' franchise, as she should. Can she be a very important voice? Absolutely, positively. Whatever she chooses will be the right decision.”
This article was first published by Cincinnati.Com on March 23, 2015 and the same reserve all copyrights for this article.
Professor Stephanie McMahon Featured in Story Examining Whether Tax Rates Influence Where Families Live
Professor Stephanie McMahon was featured in WalletHub’s recent piece about 2016's states with the highest and lowest tax rates. She shares how taxes influence where families choose to live in a small way and why.
You can find the piece here.
Dean Joseph Tomain Gives Energy Policy Presentation at American and French Universities
In March Dean Tomain gave a lecture entitled Clean Power Politics: The Democratization of Energy, at Miami for a class hosted by its University Institute for the Environment and Sustainability. He also gave a seminar on The Past, Present and Future of US Energy Policy to the trial and appellate lawyers of the Federal Energy Regulatory Commission.
Dean Tomain delivered a lecture to the Faculty of Law and the Faculty of Mining at the University of Lorraine in Nancy France. Finally, he delivered a workshop on The Clean Power Plan and the Democratization of Energy at the University of Denver Sturm College of Law.
Professor Tim Armstrong’s book review accepted for publication
Professor Tim Armstrong’s book review titled Two Comparative Perspectives on Copyright's Past and Future in the Digital Age has been accepted for publication in the John Marshall Review of Intellectual Property Law. The essay critically evaluates two recent high-profile titles on digital copyright law: The Copyright Wars: Three Centuries of Trans-Atlantic Battle by Peter Baldwin (Princeton, 2014) and Copyfight: The Global Politics of Digital Copyright Reform by Blayne Haggart (Univ. of Toronto, 2014).
Professor Michael Solimine co-authored an amicus curiae brief filed in Shapiro v. McManus, 136 S. Ct. 450 (2015)
Professor Michael Solimine co-authored an amicus curiae brief filed in Shapiro v. McManus, 136 S. Ct. 450 (2015), arguing that the lower court decision should be reversed. The case concerned the powers of a single district judge in deciding whether to convene a three-judge district court. In December, 2015, the U.S. Supreme Court decided the case in a unanimous decision agreeing with the argument asserted in the amicus curiae brief.
Professor A. Christopher Bryant judged the state finals of the high school We The People Competition
Professor A. Christopher Bryant judged the state finals of the high school We The People Competition on January 22, 2016, in Columbus, Ohio at the Statehouse. See more here. We The People is a national, civic education program that originated with the Burger commission on the Bi-centennial of the Constitution.
Professor A. Christopher Bryant made two panel presentations at the AALS Annual Meeting
Professor A. Christopher Bryant made two panel presentations at the AALS Annual Meeting in New York City. On January 8, 2016, he presented "Constitutional Law from the Ground Up: How the Prohibition on 'Under-ruling' Distorts the Judicial Function" at the Federalist Society's works-in-progress session. On January 9, 2016, he spoke at the Law & Interpretation Section's panel addressing "The Empirics of Legal Interpretation."
Duane Morris partner Kevin E. Vance elected Interim Chairman of Sunrise Community, Inc. Board
Miami Attorney to Lead Board of Directors of National Non-Profit Organization Serving Individuals with Disabilities
Miami, Fla. (March 21, 2016) – Duane Morris is pleased to announce that Kevin E. Vance, a partner in the Miami office, has been elected Interim Chairman of the Board of Directors of Sunrise Community, Inc., a national leader in providing residential and habilitation services for people with a wide range of intellectual and physical disabilities. Vance joined the organization’s Board in 2014.
For over 45 years, by means of advocacy and education directed toward acceptance, Sunrise has provided its individualized support and services to enable people with disabilities to live valued lives in the community. The Miami-based organization offers a growing range of services, including group home facilities, in-home support, residential habilitation services, respite care, supported employment, adult training, and transportation services, among others. At the heart of its mission are its residential group home facilities, which provide safe, comfortable, family-style caring homes anchored in the community. Currently, the organization has 214 residential group homes serving more than 1,000 individuals.
“I am honored to be elected chairman of such a remarkable organization that is devoted to strengthening communities and ensuring people with disabilities become full participants in community life,” said Vance. “I look forward to working alongside the Board to further the organization’s mission and continue to impact the lives of so many deserving individuals.”
A Florida Bar board-certified attorney, Vance focuses his practice on labor and employment litigation and other types of business litigation. Vance is AV® Preeminent™ Peer Review Rated by Martindale-Hubbell. He earned his J.D. from the University of Cincinnati College of Law, and his B. A. from Vanderbilt University. In addition to his Board position with Sunrise, Vance is the Vice Chair of the Greater Miami Chamber of Commerce’s Human Resources and Workforce Development Committee.
About Duane Morris
Duane Morris LLP, a law firm with more than 750 attorneys in offices across the United States and internationally, is asked by a broad array of clients to provide innovative solutions to today's legal and business challenges. In addition, Duane Morris affiliates have approximately 100 professionals engaged in ancillary service businesses.