Friends of the Court: Cincinnati Law students contribute to SCOTUS ruling

By Guest Contributors Francesca Boland(’19), David Wovrosh (’19), and Prof. Janet Moore 

On June 19, 2017, Cincinnati Law students saw their work cited in a 5-4 majority opinion of the United States Supreme Court. The case, McWilliams v. Dunn, resolved a lower courtdcsxxa-xoaafsoq split over what the Constitution requires when prosecutors seek to impose the death penalty against defendants who have mental illness, but cannot afford to hire mental health experts to present an effective defense.

First-year students researched the issue during the spring semester for an amicus brief filed by the National Association for Public Defense (NAPD). The Court cited that brief in holding that Alabama courts violated a right that was clearly established in its 1985 decision, Ake v. Oklahoma.  Continue reading “Friends of the Court: Cincinnati Law students contribute to SCOTUS ruling”

No Need to Hurry

Filibustering Judge Gorsuch’s nomination is the right thing to do.

New York Senator Chuck Schumer has signaled that Democrats will block Judge Neil Gorsuch from rising to the Supreme Court with the filibuster.

I hope to God he’s serious.

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Jimmy Stewart as Sen. Smith, filibustering in “Mr. Smith Goes to Washington

This is no ordinary nomination; this is not time for business as usual.  To start, FBI director James Comey has testified in front of the House Intelligence Committee (after confidentially briefing members) to inform them and us that his agency is investigating Russian meddling in the 2016 election, including whether members of Trump’s campaign had any links to the Russian government.

That is, to paraphrase former Vice President Joe Biden, a BFD.

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FBI Dir. Comey 

Comey testified that, in going public with this information, he was breaking with agency practice, doing so because it’s in the public interest.  The FBI is looking into misconduct that rises to the level of treason from a presidential campaign.  Every day, more facts unfurl about Trump associates’ shadowy connections to Russia.  Why rush to confirm Gorsuch when questions implicating our very democracy are on the table?

 

Indeed, the Republicans shouldn’t have any problem with waiting.  Majority leader Mitch McConnell took the unprecedented step of refusing even to meet with D.C. Circuit Judge Merrick Garland after President Obama nominated him to fill the seat vacated after Justice Scalia’s death. “Let the people decide,” he said.  Notwithstanding the fact that the people had spoken—twice electing President Obama.   Russian intermeddling in our election raises questions about whether the people’s voices truly were heard in November.

Of course, Mitchell and others will yell that the filibuster and any talk of delay are pure politics, which they (and even Gorsuch) claim have no place on the bench.

Really, guys?

When it appeared that Secretary Clinton was poised to move to the White House, Senators Cruz and McCain said they would block any judge she nominated for the Supreme Court.   Just as was true with respect to Judge Garland, the Republican party drew a line in the sand—irrespective of the nominee’s qualifications or experience, the fact that a Democrat nominated him or her was disqualifying.  How nonpartisan is that?

Let’s face it. The system is broken.  It’s been increasingly partisan for decades—even before fights surrounding Robert Bork (which the Republicans will cite as ground zero).

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Thurgood Marshall at his hearings/AP

Senators delayed the nomination of then-Solicitor General Thurgood Marshall for months.  He endured a grueling set of hearings in which he sparred with members about states’ rights to enact anti-miscegenation laws, the privileges and immunities clause of Article IV of the Constitution, and how Framer Elbridge Gerry understood the Constitution.  Unlike his future colleague Byron White, Marshall’s hearings lasted significantly more than the 90 minutes about which Judge Gorsuch waxed nostalgic.

 

So, where does that leave us?  The concern is that if  Democrats filibuster now, they merely escalate an already harmful ideological arms race. The Republicans will “go nuclear” and eliminate the filibuster, essentially guaranteeing that future nominees will be political hacks instead of the independent jurists we need to uphold the rule of law.

Another possibility is that, in slowing things down, Democrats take the lead in recalibrating the nominations process.  Perhaps they can bring along some moderate Republicans to urge nomination of a moderate, qualified candidate.

Like Merrick Garland.

 

Terminating a Wanted Pregnancy: Access, Ignorance, and the Law

By Guest Contributor, Batsheva Guy

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Supreme Court nominee Neil Gorsuch assured the Senate Judiciary Committee in no uncertain terms that he would not overturn Roe v. Wade, declaring that he would “walk out the door” if President Trump asked him to do so.

That’s all well and good. But what would Judge Gorsuch do about making sure women have access to this procedure, which as he recognizes, has been legal for a long time?  I know from experience that state laws may not outlaw abortion, but they make it practically inaccessible for many women.

In September 2015, I terminated my wanted pregnancy.

At around 23 weeks, during a routine ultrasound, right after discovering that we were having a baby girl, my husband and I were told that the fetus was not viable outside of the womb due to a fetal anomaly. She was not growing properly, and I was losing amniotic fluid quickly. If my baby girl did survive to birth, she would not be alive for more then a few hours. We were forced to make an abrupt decision as a result of restrictive laws surrounding abortion. About thirty seconds after we found out the news, we looked at each other and silently made the choice, because we knew if we didn’t soon, it may be too late.

This story is not about me. It is about the thousands of women who are denied access to safe and legal abortions every year. It is about the women who do not have the means to travel across the country, pay exorbitant sums of money, and take large chunks of time away from jobs, school, or families to terminate their pregnancies. This is my story, but I hope it gives a voice to others.

After we got the news, I didn’t have time to process any of it. I knew I would be on a time crunch and that I had to push through the pain. I had no time to grieve, no time to cry, no time to think.  I knew it may be too late to terminate.

I asked the doctor, “Can I terminate in Ohio?”

She replied, “Oh, I don’t know what the laws are.”

She knew nothing because abortion isn’t a health care issue, it’s a political issue. She basically told me, “Figure it out on your own.”

Fortunately, I had the background knowledge to figure out next steps.i_stand_with_planned_parenthood_2 I called Planned Parenthood, which confirmed by fears—Governor Kasich had signed a law banning abortions performed after 20 weeks.  I also learned that closest place I could go to legally terminate my pregnancy this late was Chicago. So, my husband, his parents, and I had to drop everything and drive to Illinois from Ohio. I couldn’t help thinking that we were privileged for being able to do so. Why did I have the ability to travel for this medically necessary procedure, while other women would have no option but carrying their babies to term? These were the thoughts going through my mind while I dealt with my own personal hell.

We didn’t have space to mourn. The law wouldn’t allow it. We had to pick up and go.

We arrived in Chicago on a Thursday afternoon, just two days after the diagnosis. We drove straight to the hotel, dropped off our bags, and made our way to the clinic. I had to have another ultrasound in which I was forced to see my baby girl one last time. Even though I was at almost 23 weeks, she measured only at 18 weeks; my amniotic fluid was almost gone at this point. I was dilated the next day, a Friday, and had the procedure on Saturday. In the fewer than three days between my diagnosis and the start of the procedure, I endured one genetic counseling session and four ultrasounds. And then I was done.

We drove home the next day, a Sunday, and I began to weep as we left the city.

chicago-882415_960_720I had to go all the way to Chicago for a legal medical procedure that should have been available in my hometown. My insurance company refused to cover the abortion, even though it was safer for my health and well- being than carrying the baby to term.

But worst of all, I had to leave my baby alone in a strange city, knowing I would never have her back.

I was forced to leave home during the most painful event in my life.  But not everyone would have been able to make the same decision.  Financial and other limitations would have prevented them from having a “choice” at all.

Ultimately, it all boils down to access—who has it and who doesn’t. According to John Oliver, “abortion cannot just be theoretically legal; it has to be literally accessible.” I was lucky enough to have the means and support to choose to terminate my pregnancy and be able to travel to do so if necessary. Not everyone has that luxury.

Sheva Guy (M.S.) is a second- year doctoral student in the Educational and Community- Based Action Research (ECAR) program within Educational Studies at the University of Cincinnati (UC). Sheva’s research interests revolve around gender equality in STEM fields as well as women’s reproductive health. Sheva is passionate about instigating and inspiring change at institutional levels in regards to gender equality and women’s rights.

Far from Normal

Let’s not pretend that the Supreme Court confirmation process isn’t broken.

Monday, February 13 marks the anniversary of Justice Antonin Scalia’s death; and we still have just eight justices on the Supreme Court. Republicans abdicated their constitutional duty by failing even to grant a hearing to D.C. Court of Appeals judge Merrick Garland.  But, with a new resident in the White House, Senate Majority Leader Mitch McConnell acts as if that unprecedented cold shoulder never happened. Since President Trump nominated Tenth Circuit judge Neil Gorsuch to the Court, McConnell has declared that “the American people simply will not tolerate” any Democratic effort to block a Supreme Court nominee.

Say what??

McConnell suggests that everything-is-everything/business as usual.  Only it’s not.  The Senate Judiciary Committee moving ahead on the merits of Judge Gorsuch’s nomination would be like Jennifer Garner inviting Ben Affleck to her family reunion.  The Republicans’ refusal to do their constitutionally enumerated job has damaged the confirmation process and harmed all three branches of government. Continue reading “Far from Normal”