Dawn Johnsen, a Radical Exception

The Committee for Justice has said little about the series of controversial Department of Justice nominees – Eric Holder, David Ogden, Thomas Perrelli, and Elena Kagan – that have come before the Senate this year. Sure, they all have very liberal records, but that shouldn’t be surprising. We and others had long predicted that, no matter how bipartisan President Obama’s approach to economic and foreign policy issues might turn out to be, his Justice Department and judicial nominees would reflect his debt to the more radical elements of the Democratic base. Most importantly, we have held our tongue on DOJ nominees because a president deserves more deference on Executive Branch appointments than on judicial nominees. But Dawn Johnsen, who testifies before the Senate Judiciary Committee today, is an exception. Her radical views and the nature of the office she has been nominated to makes her a poor choice to head DOJ’s Office of Legal Counsel.

The Office of Legal Counsel bills itself as “provid[ing] authoritative legal advice to the President and all the Executive Branch agencies.” In other words, OLC’s mission is to interpret the law rather than to shape the law or otherwise pursue a policy-driven agenda. Thus OLC is a puzzling fit for a woman whose far-left views on the law (examples below) make her the most radical faculty member at Indiana University School of Law, and the most radical of Obama’s DOJ nominees. There is no doubt that Johnsen is a bright and energetic crusader for those views. However, asking her to put those views aside is like asking Sean Penn to refrain from injecting politics into his Oscars acceptance speech. It’s just not going to happen.

GOP senators are not the only ones that should be hesitant to confirm Dawn Johnsen. If Democratic senators are sincere in their loudly voiced protests about politicization of the Justice Department, Johnsen’s nomination should cause them great concern.

The obvious question is what’s behind President Obama’s curious selection of Johnsen for the OLC. The fact that Supreme Court Justices William Rehnquist and Antonin Scalia also headed the OLC makes us wonder if Obama is grooming Johnsen for the Court. It won’t be easy to stop any Obama nominee for the Supreme Court, but Johnsen would make the task easier than perhaps anyone else we can think of. Her declaration last year that the “progressive agenda” should “focus on the courts as the vehicles for desired change” is akin to wearing an “I Love Judicial Activism” t-shirt to her Supreme Court confirmation hearing.

Moreover, Johnsen is on record calling for the Senate to reject judicial nominees who believe in originalism, belong to the Federalist Society, or think that Roe v. Wade permits any restrictions on abortion. Thus she would be hard pressed to complain if her long list of far-left views and organizations threatened to block her confirmation to the Supreme Court.

Others have documented Johnsen’s many controversial positions (see, for example, this article by Andrew McCarthy), so we’ll just touch on a few more examples:

While serving as legal director of NARAL (the National Abortion Rights Action League), Johnsen argued in a Supreme Court brief that restrictions on abortion violate the Thirteenth Amendment’s prohibition against slavery because “the state has conscripted [the pregnant woman’s] body for its own ends.”

Contrary to settled law, Johnsen believes that “economic justice” requires the government to provide funding for the exercise of constitutional rights, especially abortion rights. She has called the Hyde Amendment’s prohibition on federal funding of abortions a “callous” and “discriminatory” policy.

Johnsen’s criticism of President Bush’s War on Terror policies has often been the type of anti-Bush bashing you would expect from MoveOn.org, rather than the sort of critical but scholarly legal analysis you’d expect from a liberal law professor. For example, she characterized the Bush Administration’s legal rationale for warrantless monitoring of suspected al-Qaeda communications, upheld by the courts, as “extreme and implausible.”

Following the confirmation of Supreme Court Justice Clarence Thomas, Johnsen violated the rule against accusing judges of bias when she said that “In any abortion or sexual harassment case, Judge Thomas’s ability to be unbiased or neutral is highly suspect.”

Roberts Court's First Shot at Establishment Clause

Today the Court granted cert to decide whether an eight-foot-tall cross can stand in a national preserve to honor fallen soldiers.  The relevant history of the case is as follows, 

At issue is an eight-foot-tall cross in the Mojave National Preserve in San Bernardino County. A smaller wooden cross was first erected by the Veterans of Foreign Wars in 1934 and was originally maintained as a war memorial by the National Park Service.

The American Civil Liberties Union objected to the cross and filed a suit on behalf of Frank Buono, a Catholic and former Park Service employee. The suit noted that the government had denied a request to have a Buddhist shrine erected near the cross.

Two years ago, the U.S. 9th Circuit Court of Appeals ruled for the ACLU and declared the cross an "impermissible governmental endorsement of religion."

Congress had intervened at one point to save the cross. It ordered the Interior Department to transfer to the VFW one acre of land where the cross stood.

The 9th Circuit judges were unswayed, however. This "would leave a little donut hole of land with a cross in the midst of a vast federal preserve," wrote Judge Margaret McKeown.

Bush administration lawyers appealed to the Supreme Court last fall and said the "seriously misguided decision" will require the government "to tear down a cross that has stood without incident for 70 years as a memorial to fallen service members."

The government also questioned Buono's standing to challenge the cross, since he lives in Oregon and suffers no obvious harm because of the Mojave cross.

In a friend-of-the-court brief, the VFW, American Legion and other veterans groups said the 9th Circuit's ruling, if allowed to stand, could trigger legal challenges to the display of crosses at Arlington National Cemetery and elsewhere.

The case could reshape the doctrine in this area as Justice O'Connor, known for her propensity to craft tests in this area, often cast the swing vote in religion cases, whereas Justice Alito, her replacement, has been a stalwart in the conservative camp.  

Lawyers Propose Changes to SOTUS' Operations

A group of lawyers led by Duke University law professor Paul D. Carrington have submitted a set of four proposals, that if adopted would substantially change the Court's operation, to the judiciary committees, AG Eric Holder, and VP Joe Biden.  They are not seeking to interfere with the substantial work of the court, but they are seeking Congress to address and alter how the court operates.  The four proposals include:

1. A form of term limits

For starters, the group proposes a form of term limits, moving justices to senior status after 18 years on the court. The proposal says that justices now linger so long that it diminishes the likelihood that the court's decisions "will reflect the moral and political values of the contemporary citizens they govern."

To get around the Constitution's prescription that justices serve for life, the group would let justices stay on the court in a senior role -- filling in on a case, perhaps, or dispatched to lower courts -- or lure them into retirement with promises of hefty bonuses.

It would set up a regular rotation on the court by providing for the nomination of a new justice by the president with each new two-year term of Congress. If that results in more than the current nine justices, only the nine most junior would hear cases.

The new policy would not take effect until those already on the court are off, but the current tenure of the court suggests what a radical change that would be.

2.  Limit term as chief justice to 7 years

3.  Removal of justices in ailing health

The third proposal deals with the removal of justices in failing health "who are increasingly prone to remain in office and retain their political power even if no longer able to perform their office."

It did not name names. But it said the chief justice should have the duty of advising such a justice to resign and promptly report that fact to the Judicial Conference of the United States (if the chief is the one in question, it falls to other justices to report him).

4.  Creation of a "Certiorari Division"

And the proposal would deprive the justices of one of their greatest powers: deciding which cases they hear. Justices now comb through the thousands of petitions for certiorari they receive each year, and in recent years have declared a declining portion of them worthy of their time.

The court issued 67 merit opinions last term, the lowest number since the 1950s. The number of cases the court will decide this term is a bit higher.

"It is increasingly difficult to justify absolute independence for justices whose chief work is expressing and imposing on the public laws on topics of their choice," the proposal said.

It envisions a "Certiorari Division" made up of senior justices and appellate judges who would review the petitions and send 80 to 100 each year for the Supreme Court to decide, whether it wanted to or not.

For further analysis see Matthew Franck's post here.  

Tough Cases Await SCOTUS

Marcia Coyle at The National Law Journal has the rundown.

via How Appealing

Meet the New Boss -- Same as the Old Boss

The Department of Justice has ruled that approximately 600 enemy combatants held at Bagram Air Force Base in Afghanistan have no Constitutional rights. Therefore, they cannot use the U.S. courts to challenge their detentions. 

The move has disappointed human rights lawyers who had hoped the Obama administration would take a different line to that of George W Bush.

As for the Government's official position, 

In a two-sentence filing, justice department lawyers said the new administration had decided not to change the government's position.

"Having considered the matter, the government adheres to its previously articulated position," said acting assistant Attorney General Michael Hertz in papers filed at the court.

The US justice department argues that Bagram differs from Guantanamo Bay because it is in an overseas war zone and prisoners there are being held as part of ongoing military action.

h/t Hot Air

Obama in Awkward Position on Judges

Two articles call attention to Barack Obama’s obstructionist record on judicial nominees during his four years in the U.S. Senate. An editorial in yesterday’s Christian Science Monitor wonders whether Obama’s judicial nominees will have “a commitment to true impartiality from the bench” and will pass the “test of his call for a new bipartisanship.” The Monitor is skeptical because

“[Obama] was not one of the bipartisan ‘Gang of 14’ senators who, in 2005, brokered a compromise to avoid filibusters for votes on President Bush's court nominees. He has also made clear that he wants courts to use the Constitution for social policy.” (emphasis added)

The Monitor goes on to cite a recent Rasmussen poll which found that only 35% of Americans believe Obama wants Supreme Court Justices to base their decisions “on what’s written in the Constitution and legal precedents.” (link to poll below)

And the Deseret News reports on a February 13 speech by Ken Starr. The article summarizes Starr’s message:

"If President Barack Obama is hoping for bi-partisan support of his future U.S. Supreme Court nominees, he may have painted himself into a political corner … because he actively opposed nominees from former President George W. Bush … supported a filibuster against Justice Samuel Alito and voted against John Roberts.”

As Starr notes, Obama finds himself in the awkward position of being “the first president of the United States ever in our history to have participated in a Senate filibuster of a judicial nominee.” Multiple filibusters in fact (Obama also supported a filibuster against Fifth Circuit nominee Leslie Southwick in 2007). Quoting the Washington Times, Starr concludes that Obama’s Senate record on judges leaves him “hard-pressed to call for bipartisan help confirming judges or even an up-or-down vote.”

Urbina's Overreach Rebuked

In October, Judge Ricardo Urbina ruled that, since the Uighurs were not considered to be "enemy combatants," they had to be released into the U.S. (see the background on the Uighurs in the appeal opinion here).  This was an extraordinary case of judicial activism.  The fact is, Urbina was fed up with the Bush administration over the detainee program so he made this political move couched in a judicial opinion.  In reversing, the Court of Appeals for the D.C. Circuit said as much when it concluded, 

[I]t is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the government to exclude a given alien. With respect to these seventeen petitioners, the Executive Branch has determined not to allow them to enter the United States.

As to Urbina's judicial activism, the court stated,

The critical question is: what law “expressly authorized” the district court to set aside the decision of the Executive Branch and to order these aliens brought to the United States and released in Washington, D.C.?  The district court cited no statute or treaty authorizing its order, and we are aware of none. (emphasis added).  As to the Constitution, the district court spoke only generally. The court said there were “constitutional limits,” that there was some “constitutional imperative,” that it needed to protect “the fundamental right of liberty.” These statements suggest that the court may have had the Fifth Amendment’s due process clause in mind.  But the due process clause cannot support the court’s order of release. Decisions of the Supreme Court and of this court – decisions the district court did not acknowledge – hold that the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States.

Hopefully this opinion will put other judges on notice that their job is to interpret the laws as they are written not to issue political statements from the bench.

Will Obama Look Outside Judicial Monastery

As it standes, all the current Supreme Court justices served as appeals court judges before being named to the high court. This begs the question, will Obama look outside the the judicial ranks for his Supreme Court nominees? Legal Beat quotes the Senate Judiciary Committee Chairman Patrick Leahy as saying,

"I'd like to see more people from outside what I call the judicial monastery, some who've had other experiences. I remember when I was a student at Georgetown having lunch with Hugo Black. Great advocate for the First Amendment. He came from outside the judicial monastery."

The last justice to enter the Court with any elective office experience was Sandra Day O'Connor, who had served in the Arizona legislature.

Overreacting to Herring

Since the Supreme Court handed down the opinion in Herring v. United States there has been incessant hand wringing on the left that it some how signaled the end of the exclusionary rule as the knew and loved it. They have taken every chance to remind the public of a memo written by Justice Roberts, as a young lawyer in the Reagan administration, voicing his criticism of the rule as evidence of its future demise. Matthew Franck at Bench Memos provides some context and urges them to stop hyperventilating. In taking the New York Times to task Franck writes,

"Breathe into the paper bag, boys. The Herring decision is really pretty ordinary, and simply applies a principle established a quarter century ago in United States v. Leon: that when law enforcement officers rely in good faith on what they believe to be a valid warrant, and that warrant is subsequently found to be invalid, the evidence the officers obtain by virtue of it will not be excluded. The exclusionary rule is not, the Court emphasized in the Leon case, a command of the Constitution itself. It is a remedial rule the Court itself invented as a deterrent to police misconduct. When its application would have no deterrent effect, its use is inappropriate. Leon and Herring are practically indistinguishable."

But as Franck notes, "facts are no deterrent to New York Times writers."

U.S. Voters Disagree With Obama on Court

Thanks to the War in Iraq and ultimately the downfall of the economy, judicial philosophy was relegated to the back burner during the 2008 Presidential Election.  This may have been a good thing for Obama.  The Judicial Confirmation Network takes note of a recent Rasmussen survey.

The Rasmussen survey shows that nearly two-thirds of U.S. voters (64%) say U.S. Supreme Court decisions should be based on what is written in the Constitution, but only 35% think that President Obama shares that view.

The Rasmussen findings are extremely close to the findings in a November 2008 nationwide survey of actual voters by The Polling Company, which found that regardless of whether they voted for Obama or McCain in the presidential race, voters favor judicial restraint by more than 3 to 1. A full 70% of voters said they prefer a President to nominate Justices to the Supreme Court and judges to the federal courts who "will interpret and apply the law as it is written and not take into account their own viewpoints and experiences." Only 22% thought that judges should, as President Obama urges, "take into account their own viewpoints and experiences" in deciding cases.

If the Senate confirmation process for Obama's other law-related appointees is any indication of the scrutiny that is to be applied to Obama's judicial nominees, a majority of Americans may be in for a surprise at the people chosen to represent them on the bench.

Rush to Confirm

Ed Whelen has a post at Bench Memos that is worth quoting in full.

Given the hard-Left records of President Obama’s senior DOJ picks, it’s no surprise that Judiciary Committee chairman Pat Leahy is pressing for early hearings to make it difficult for Senate Republicans to expose those records.  Compare and contrast:

 

In 2001, President Bush’s nominee for Deputy Attorney General, Larry Thompson, received his committee hearing 50 days after President Bush announced his nomination, and he was confirmed 85 days after that date.  In 2009, President Obama’s nominee for Deputy Attorney General, David Ogden, received his committee hearing 32 31 days after then-President-elect Obama announced his nomination.

 

In 2001, Bush’s nominee for Solicitor General, Ted Olson, received his committee hearing 50 days after Bush announced his nomination, and he was confirmed 99 days after that date.  In 2009, Obama’s nominee for Solicitor General, Elena Kagan, is slated to have her committee hearing tomorrow—36 days after Obama announced her nomination—even though (as a Senate staffer tells me) the questionnaire response that she submitted doesn’t include all the requested publications.

 

If the 18 19-day and 14-day differences strike you as insignificant, have in mind that those extra days would more than double the time that committee staffers have had to review the nominees’ questionnaire responses and the voluminous materials accompanying those responses.

 

In Roll Call today, the Judicial Confirmation Network has this ad faulting Leahy’s rush and placing it in the context of Obama’s broader mess-ups on nominations.

Be sure to check out the ad.

L.A Times to Obama: Renominate Keisler

The L.A. Times has joined the groundswell in urging Obama to renominate some of Bush's judicial nominees including Peter Keisler.  

Finally, Obama should follow the advice of Sen. Arlen Specter (R-Pa.) and renominate three Bush nominees whose appointments have languished in the Senate but who have been highly rated by the ABA and received bipartisan support. Specter notes that there is a precedent: Bush renominated -- and the Senate confirmed -- one of Clinton's unsuccessful nominees to a federal appeals court.

One of the three candidates mentioned by Specter, former Assistant Atty. Gen. Peter Keisler, would take the seat formerly occupied by Roberts on the U.S. Court of Appeals for the District of Columbia Circuit. Keisler was praised by the Justice Department's inspector general for opposing the Bush administration's politicization of hiring in the department. Renominating Keisler could signal the beginning of a long overdue truce in the judge wars.

We have covered this topic including Bush's bipartisanship here.  It remains to be seen if Obama will stick to his bipartisan rhetoric in appointing judicial nominees.

Justice Ginsburg: Prayers & Prognosis

Our prayers for a speedy recovery go out to Supreme Court Justice Ruth Bader Ginsburg, who was operated on for pancreatic cancer today at Memorial Sloan-Kettering Cancer Center in New York. While mindful of the fact that pancreatic cancer is one of the most difficult cancers to treat, we are heartened to hear that the Justice’s cancer was in an early stage.

Some quick research reveals that if the cancer was in the earliest stage – the 10% of pancreatic cancer cases where the tumor is localized and resectable – the five-year survival rate is 16.4 percent, with a median survival time of 17 months. Overall, white women with pancreatic cancer have a 4.2 percent survival rate. Among all patients receiving treatment, the median survival time is 6 months (see links below for survival statistics).

While these statistics are sobering, no one can doubt that Justice Ginsburg is a fighter who will no more lay down in the face of this disease than she does when faced with a majority opinion she views as misguided. While we have often disagreed with her “living Constitution” approach to deciding cases – and hope to have the opportunity to continue doing so – her sincerity and the strength of her convictions are unquestionable.

If nothing else, Justice Ginsburg’s illness serves to remind the President, the Senate, and groups like CFJ on both sides of the debate that – with two-thirds of the Court being 70 or older as of this September – a Supreme Court vacancy in the near future is a virtual statistical certainty.

Leahy Mum on "Blue Slip" Policy

Congressional Quarterly has a new blog called Legal Beat that covers "the relationship between Congress and the courts."  Legal Beat notes that Senate Judiciary Committee Chairman Patrick Leahy (D-VT) is being very non-committal on whether he will continue the informal committee tradition of the "blue slip" policy.  Leahy honored the tradition during the last Congress when a Republican was in office, but now that a Democrat is in office his tune may be changing.  A reversal in this policy could have dramatic effects on Republican efforts to oppose Obama's judicial nominees.

As we have noted, the Fourth Circuit is particularly vulnerable to a dramatic shift to the left.  Legal Beat notes the effect that a reversal in "blue slip" policy could have on the Fourth Circuit:

"If Leahy decides not to observe the blue slip practice as scrupulously as he did for the last two years, there could be a dramatic impact, particularly on appellate courts. For example, of the four vacancies on the conservative 15-member 4th Circuit, President Obama ostensibly will nominate one candidate from North Carolina (one Republican senator) and one from South Carolina (two Republican senators)."

If Leahy does decide to abandon the "blue slip" policy, Republicans will need to look no further than Leahy's own words to paint him as a hypocrite.  In 2003, Leahy said, 

"The Republican majority has shown a corrosive and raw-edged willingness to change, bend and even break the rules that they themselves followed before when the judicial nominees involved were a Democratic president's choices, instead of a Republican president's choices."

With huge Democratic majorities, the "blue slip" is one of the few tools Republicans have to oppose Obama's judicial nominees.  Leahy knows this.  The question is, will politics and power trump principle?

Justice Souter Possibly Stepping Down

Above the Law makes a note in its "Supreme Court Clerk Hiring Watch" that Justice Souter has yet to name any clerks for the October 2009 term.  ATL notes,

"Justice Souter traditionally hires last, so it's not surprising that he still has open spots. But one can't help wondering whether DHS, never a fan of life in D.C., might be considering stepping down from the Court, now that President Obama has taken over."

We will keep an eye out for any further developments.

Will Gregg's Nomination Make Dems Filibuster Proof

The New York Times is reporting that Obama will nominate Senator Judd Gregg (R-NH) for the post of commerce secretary.  This will leave New Hampshire's Democratic governor to fill Gregg's vacated seat.  With Al Franken's likely victory in Minnesota the Democrats could get to a filibuster proof 60 seats were Gregg to be replaced by a Democrat.  Taking the threat of a filibuster off the table would, among other things, strip the Republicans of a valuable tool in combating Obama's judicial nominees.  Gregg has said that he will not accept if a Democrat was named to his seat saying,

"'I have made it clear to the Senate leadership on both sides of the aisle and to the governor that I would not leave the Senate if I felt my departure would cause a change in the makeup of the Senate,' [Gregg] said. 'The Senate leadership, both Democratic and Republican, and the governor understand this concern, and I appreciate their consideration of this position.'"

Hopefully Gregg will get the governor to confirm a replacement in writing to ensure that the GOP retains the threat of the filibuster.