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The Journal of the ACS Issue Groups The Journal of the ACS Issue Groups Table of ConTenTs All the President’s Lawyers: How to Avoid Another “Torture Opinion” Debacle Dawn E. Johnsen Tired of Kabuki? Time to Tango: The Case for Litigator-Led Questioning of Supreme Court Nominees Seth Rosenthal Running Aground: The Hidden Environmental and Regulatory Implications of Homeland Security Mariano-Florentino Cuéllar Reinventing the President’s Pardon Power Margaret Colgate Love The Emerging Threat of Regulatory Preemption David C. Vladeck The Citizen’s Advocate: A Perspective on the Historical and Continuing Role of State Attorneys General Peggy A. Lautenschlager and Daniel P. Bach Guantánamo Is Here: The Military Commissions Act and Noncitizen Vulnerability Muneer I. Ahmad Towards Full Participation: Solutions for Improvements to the Federal Language Assistance Laws Jocelyn Friedrichs Benson Restoring Effective Protections for Students Against Sexual Harassment in Schools: Moving Beyond the Gebser and Davis Standards Fatima Goss Graves Examining “Backlash” and Attacks on Landmark Decisions from Brown to Roe to Goodridge Panel Discussion at 2007 ACS National Convention Featuring Edward Lazarus, Scott Lemieux, Robert Post, Jeffrey Rosen, Reva Siegel and Roger Wilkins 1333 H St., NW, 11th Floor Washington, D.C. 20005 www.ACSLaw.org 202-393-6181 Copyright © 2008 American Constitution Society for Law and Policy Advance The Journal of the ACS Issue Groups Table of ConTenTs 1 Introduction All the President’s Lawyers: How to Avoid Another 5 “Torture Opinion” Debacle Dawn E. Johnsen Tired of Kabuki? Time to Tango: The Case for Litigator-Led 21 Questioning of Supreme Court Nominees Seth Rosenthal Running Aground: The Hidden Environmental and Regulatory 45 Implications of Homeland Security Mariano-Florentino Cuéllar Reinventing the President’s Pardon Power 63 Margaret Colgate Love The Emerging Threat of Regulatory Preemption 81 David C. Vladeck The Citizen’s Advocate: A Perspective on the Historical 97 and Continuing Role of State Attorneys General Peggy A. Lautenschlager and Daniel P. Bach Guantánamo Is Here: The Military Commissions 109 Act and Noncitizen Vulnerability Muneer I. Ahmad Towards Full Participation: Solutions for Improvements 123 to the Federal Language Assistance Laws Jocelyn Friedrichs Benson Restoring Effective Protections for Students Against 135 Sexual Harassment in Schools: Moving Beyond the Gebser and Davis Standards Fatima Goss Graves Examining “Backlash” and Attacks on Landmark Decisions from 149 Brown to Roe to Goodridge Panel Discussion at 2007 ACS National Convention Featuring Edward Lazarus, Scott Lemieux, Robert Post, Jeffrey Rosen, Reva Siegel and Roger Wilkins ACS BoArd of DireCtorS Frederick M. Baron William P. Marshall Stephen P. Berzon Spencer A. Overton Faith E. Gay Robert C. Post Pamela Harris Robert Raben Antonia Hernández Teresa Wynn Roseborough Eric H. Holder, Jr. Theodore M. Shaw Anne Irwin Paul M. Smith, Chair Dawn Johnsen Geoffrey R. Stone, Treasurer Harriet Johnson Stephen D. Susman Donya Khalili Patricia M. Wald Ronald Klain Roger Wilkins Victor A. Kovner Goodwin A. Liu, Secretary ACS BoArd of AdviSorS Brooksley E. Born Charles Mathias, Jr. Mario M. Cuomo Frank I. Michelman Drew S. Days III Abner J. Mikva Walter E. Dellinger III William A. Norris Maria Echaveste Janet Reno Christopher Edley, Jr. Laurence H. Tribe Shirley M. Hufstedler Lisa Brown, Executive Director The Journal of the ACS Issue Groups 1 Advance elcome to the latest edition of Advance, the Journal of the Issue Groups of the American Constitution Society for Law and Policy (ACS). The mission of ACS is to ensure that our country’s found- Wing values of human dignity, individual rights and liberties, genuine equality and ac- cess to justice enjoy their rightful, central place in American law. Each semi-annual issue of Advance features a collection of articles advancing progressive ideas, proposals and views. Most editions, including this one, contain a selection of Issue Briefs written for ACS during the preceding several months, on topics spanning the breadth of the ACS Issue Groups. ACS Issue Briefs are intended to offer substantive analysis of a legal or policy issue in a form that is easily accessible to practitioners, policymakers and the general public. The expressions of opinion in Advance are those of the authors, as ACS takes no position on particular legal or policy initiatives. In this issue of Advance, the authors offer a variety of proposals for improving American law and public policy and our democratic process. Some suggest specific ways in which a new Administration in Washington next year (of either party) should do things differently—offering their ideas, for example, on how to avoid abuses of executive power, exercise the President’s pardon power, approach federal regulatory preemption of state health and safety protections, or keep sight of the less visible consequences of homeland security policies. One offers a proposal for improving Supreme Court confirmation hearings, with the goal of eliciting more meaningful information about the nominees’ jurisprudential views. Another focuses on the Military Commissions Act and the particular vulnerability of non-citizens in our country in the post-911 world. Others propose federal legislative changes as well as state law remedies for pressing national problems such as sexual harassment in the schools and assistance for language minority voters. And one article, which advocates a robust role for state Attorneys General in protecting the public interest, is a particularly good reminder of the possibilities for advancing law at the state level. In addition, this edition of Advance includes the transcript of a panel discussion at the 2007 ACS National Convention addressing the so-called “backlash” debate—the arguments and counter-arguments on the question of whether reliance on the courts has ultimately undermined progressive goals in areas from desegregation to abortion rights to gay rights. This lively debate drew a packed audience at the Convention and wide viewing on C-SPAN, and we are pleased that Advance offers a way to bring addi- tional members of the ACS community into this important discussion. We hope you enjoy this issue of Advance. 2 Advance ACS Issue Groups ACS Issue Groups are comprised of legal practitioners and scholars working together to articulate and pub- licize compelling progressive ideas. The Groups are led by distinguished co-chairs who are experts in their respective fields. They are open to all ACS members, and new members and new ideas are always welcome. Access to Justice The Access to Justice Group addresses barriers to access to our civil justice system, including, among other issues, efforts to strip courts of jurisdiction, raise procedural hurdles, remove classes of cases from federal court, insulate wrongdoers from suit, limit remedies and deprive legal aid services of resources. It focuses attention on ways to ensure that our justice system is truly available to all. Co-Chairs: Lucas Guttentag, ACLU Immigrants’ Rights Project Marianne Lado, New York Lawyers for the Public Interest Bill Lann Lee, Lewis, Feinberg, Lee, Renaker & Jackson, P.C. Constitutional Interpretation and Change Ideological conservatives have been quite successful in promoting neutral-sounding theories of constitutional interpretation, such as originalism and strict construction, and in criticizing judges with whom they dis- agree as judicial activists who make up law instead of interpreting it. The Constitutional Interpretation and Change Group works to debunk the neutrality of those theories and expose misleading criticisms. It also articulates effective and accessible methods of interpretation to give full meaning to the guarantees contained in the Constitution. Co-Chairs: Jack Balkin, Yale Law School Rebecca Brown, Vanderbilt University Law School Andrew Pincus, Mayer Brown LLP Criminal Justice The administration of our criminal laws poses challenges to our nation’s fundamental belief in liberty and equality. Racial inequality permeates the system from arrest through sentencing. The United States’ imposi- tion of the death penalty increasingly has set us apart from much of the world and has raised concerns about the execution of the innocent. Sentencing law and policy have led courts to impose lengthier sentences, result- ing in the incarceration of an alarming percentage of our population. The recent invalidation of mandatory federal sentencing guidelines has left sentencing in flux. Failure to provide adequate resources for representa- tion of accused individuals and investigation of their cases has weakened the criminal justice system. Restric- tive rules governing collateral review of convictions have closed the courts to many. This Group explores these and other issues affecting criminal justice. Co-Chairs: David Cole, Georgetown University Law Center Gregory Craig, Williams & Connolly Carol Steiker, Harvard Law School Ronald Sullivan, Harvard Law School Democracy and Voting The Democracy and Voting Group focuses on developing a comprehensive vision of the right to vote and to participate in our political process. It identifies barriers to political participation that stem from race, redistricting, the partisan and incompetent administration of elections, registration difficulties, felon disen- franchisement and other problems that suppress access to voting and threaten the integrity of our electoral process. Co-Chairs: Julie Fernandes, The Raben Group Pamela Karlan, Stanford Law School Nina Perales,
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