Federal Judiciary's Unprecedented Power Trip

There is a very interesting article at Slate documenting the creeping power of the federal judiciary.

"When a federal judge ordered 17 Chinese Uighurs, detained at Guantanamo Bay, released into the United States last October, he took to its logical conclusion the judiciary's increasingly bold effort to supervise the president and Congress. Justifying his ruling in the face of Congress' exclusive constitutional power over when, which, and how foreign nationals may enter the United States, Judge Ricardo Urbina reasoned that "our system of checks and balances is designed to preserve the fundamental right of liberty." He saw his order as necessary to that end. But if he's right, then the judiciary itself is the unchecked branch of government. And while judges have expanded their power before in our history, never have the claims to supremacy of some of them been so extreme. ...

The problem with this view is obvious. If there is no aspect of government over which the courts do not have the final say, then under the guise of saying "what the law is," as the 1803 case Marbury v. Madison put it, judges become the little kings they so often remind the president he is not. This is especially the case today because a number of the traditional constraints on judicial power have been severely eroded. ...

What will check the judiciary's contemporary expansion? We can hope that the other two branches will realize that, however expedient it is to have the courts decide politically difficult issues, in time judicial supervision will make it impossible for them to perform their own constitutional duties—such as protecting the population from future attacks. Similarly, the courts may discover that ultimate power carries ultimate responsibility. That should be a daunting prospect for a branch that lacks the legitimate power of the purse or sword. In the meantime, anyone who cares about limited government, and the individual liberty it is designed to protect, should ask themselves who now checks and balances the judges."

Be sure to read the whole thing.

Justice Sotomayor Lucky She Didn't Get Miguel Estrada Treatment

The Wall Street Journal is the first news outlet I have seen to acknowledge the respectful and principled way that Republicans conducted themselves during Sotomayor's confirmation process.

"[H]er confirmation process has been a worthy exemplar of the Senate’s duty of advise and consent.

All but nine Republicans opposed her confirmation, but the confirmation process was conducted respectfully and with a cool-tempered focus on her Constitutional philosophy. That marks a departure from many modern confirmation battles, most recently over Justice Samuel Alito, who was confirmed on a more partisan vote than Judge Sotomayor and was subjected to far more discourteous treatment by Vermont’s Pat Leahy and other interrogators on the Judiciary Committee. She and the country can thank Judiciary’s ranking Republican Jeff Sessions, who once faced nasty confirmation treatment himself. ...

She nonetheless now becomes the nation’s first Hispanic Justice, and on that score we also can’t help but contrast her treatment with the way Democrats smeared and filibustered appellate-court nominee Miguel Estrada in 2001. He might otherwise have become the first Hispanic Justice in George W. Bush’s second term."

Despite what many editorial pages beleive, a nominee is not entitled to a Yes vote. Instead, as the Republicans showed here, a nominee is entilted to a fair hearing and a prompt vote. Hopefully the Democrats were taking notes.

Sotomayor Fight is Conservative Victory

CFJ Executive Director Curt Levey on today’s vote on Supreme Court nominee Sonia Sotomayor:

“Although the numbers in the Senate ensured that the confirmation of Sonia Sotomayor was never in doubt, those of us committed to restoring the rule of law to the federal judiciary have many things to be happy about in how Sotomayor’s confirmation battle played out. Those include Republican senators’ courage in mounting a strong opposition; the repudiation of the living Constitution philosophy that has been so fashionable in recent decades; the multi-edged defeat of identity politics; the strong signals sent to the White House about future Supreme Court picks; and the profound change in the politics of judicial confirmations wrought by the explosion of the Second Amendment issue.

“The engagement of the Second Amendment community will long be remembered as the most significant aspect of this confirmation battle. Although the NRA’s decision to oppose Judge Sotomayor and score her confirmation vote got the most attention, the grassroots mobilization of gun owners from the bottom up is probably the biggest story. As a result, gun rights emerged as the most influential issue in this and probably future Supreme Court confirmation battles.

“By adding a large and influential constituency to the coalition opposing the nomination of judicial activists, the Second Amendment issue has forever changed the political dynamics of the judicial confirmation process. It is no coincidence that most of the GOP senators from states with both large Hispanic and gun-owning populations decided to vote against Sotomayor, or that the 30-plus Republican votes against confirmation far exceeded the expectations of liberals and conservatives alike. By all reports, the White House was very surprised at how big the gun issue turned out to be, and it is unlikely that a President will ever again choose a Supreme Court nominee with a record that can be characterized as hostile to the Second Amendment.

“One need only recall the mere three GOP votes against the elevation of Ruth Bader Ginsburg to the Supreme Court to know that the Republican leadership – Sens. McConnell, Kyl, Thune, Cornyn, and on the Judiciary Committee, Sen. Sessions – and most of the party’s other senators deserve tremendous credit for refusing to be cowed by the ‘you better vote for the first Hispanic Supreme Court nominee’ attitude of the White House and Senate Democrats.

“Republican senators should be proud not only of their votes today, but also of the tough but fair questions they asked Sotomayor during her hearings and of the powerful floor statements they made in opposing her. As a result, Americans got the teaching moment they deserved. For the first time since the nomination of Robert Bork in 1987, the confirmation battle saw a serious debate about judicial philosophy and the proper role of judges, rather than just an argument about case outcomes.

“It could have been an even grander debate if Judge Sotomayor and her White House handlers had not chosen to run away from, rather than defend, the philosophy of empathy and ethnicity-based judging espoused by the President and by his nominee in her many speeches. Perhaps the most memorable moment of Sotomayor’s confirmation hearings was her explicit and complete repudiation of President’s Obama’s call for judges who rule from the heart in the most difficult cases.

“I share the frustration of liberal legal commentators over Sotomayor’s refusal to stand and fight for the concept of a living Constitution, but there’s a huge silver lining: the living Constitution is now dead as a defensible judicial philosophy outside academia. There is no doubt that judicial activism will live on surreptitiously in the courts, but it is doubtful we will ever again see a Supreme Court nominee who has openly espoused it, no less one willing to defend it during his or her confirmation hearings.

“Finally, it has been a bad summer for the purveyors of identity politics. Not only was the President forced to beat a hasty retreat from his old-school, victim-based take on last month’s incident in Cambridge, but his Supreme Court nominee denied any knowledge of the race-base theories of judging she and other liberals have long championed. Meanwhile, Democrats failed miserably in their attempt to convince Republican senators that they opposed a Hispanic nominee at their ‘own peril’ (quoting Sen. Schumer). Polls showing that Hispanics and non-Hispanic whites shared the same unimpressive levels of support for Sotomayor generally, as well as the same levels of specific concern about her Second Amendment record, dealt a further blow to identity politics. Those of us who believe that racial favoritism has no place in law or politics should celebrate.”

A Powerful Excerpt

James has posted a video of Senator Jeff Sessions' closing remarks on the confirmation process of Sonia Sotomayor below this post. I wanted to point out what I think is a particularly powerful excerpt from his speech:

This is not a question of left versus right or Democrat versus Republican. This is a question of the true role of a judge versus the false role of a judge. It is a question of whether a judge follows the law as written or as they wish it to be. It is a question of whether we live up to our great legal heritage or whether it is abandoned.

Empathy-based rulings, no matter how well-intentioned, do not help society but imperil the legal system that is so essential to our freedoms and so fundamental to our way of life.

We need judges who uphold the rights of all, not just some – whether they are New Haven firefighters, law-abiding gun-owners, or any American looking for their fair day in court. We need judges who put the Constitution before politics, and the right legal outcome before their desired social outcome. We need judges who understand that if they truly care about society, and want it to be strong and healthy, then they must help ensure that our legal system is fair, objective and firmly rooted in the Constitution.

Americans are very fortunate to have courageous men like Jeff Sessions, who take their role as defenders of the Constitution seriously, as leaders in the U.S. Senate.

SESSIONS CLOSING REMARKS ON THE NOMINATION OF JUDGE SONIA SOTOMAYOR

Quote of the Day

The quote is in the context of the Obama/Joker posters, but it applies equally well to GOP members who vote no on Sotomayor or conservatives writ large who oppose such liberal mainstays as affirmative action.

"It’s a parlor game for progressive nerds: Take any conservative attack on Obama [Sotomayor, affirmative action, etc.], assume racism, and then connect as many dots as you need to in order to get from point A to point B."

Stuart Taylor: Sotomayor Not Bound by Precedent in Ricci

Stuart Taylor's latest column should put to rest the argument put forth by Sotomayor and her supporters that, despite being overruled 9-0 at the High Court and despite six of her fellow 2nd Circuit judges voting to hear the case en banc, Sotomayor was bound by 2nd Circuit precedent in ruling against Ricci.

"Instead of defending her panel's quota-friendly rule and its harsh impact on the high-scoring firefighters, Sotomayor and her supporters have argued that she essentially had no choice. The rule that her panel applied had been dictated, they say, by three precedents of her own court, the U.S. Court of Appeals for the 2nd Circuit. ...

Even assuming for the sake of argument that the Sotomayor panel's decision was dictated by the three 2nd Circuit precedents, it is undisputed that the full 2nd Circuit could have modified or overruled them if Sotomayor had voted to rehear the case en banc, meaning with all active 2nd Circuit judges participating. Instead, Sotomayor cast a deciding vote in the 7-6 decision not to rehear the case, which seems to me to suggest that she was satisfied with the ruling.

There is also ample reason to doubt that any of the three 2nd Circuit precedents actually required the Sotomayor panel to rule as it did, as some politicized professors have pretended. ...

The bottom line is that 2nd Circuit precedents did not make Sotomayor rule as she did. Supreme Court precedent favored the firefighters. Sotomayor's ruling was her own."

CFJ’s Alaska Ad Warns Sotomayor is Anti-Gun

Beginning today in Alaska, the Committee for Justice is airing a radio ad discussing Supreme Court nominee Sonia Sotomayor’s Second Amendment record and urging Alaskans to tell their senators to vote against her confirmation. The 60-second ad will air in Alaska’s largest media markets, Anchorage, Fairbanks and Juneau.

The U.S. Senate is expected to vote on Sotomayor’s confirmation at the end of this week. The National Rifle Association opposes her confirmation, but Sens. Begich and Murkowski have not yet announced how they will vote.

The radio ad points out that Sotomayor, “one of the nation’s most liberal and activist judges,” has “twice ruled that Americans have no fundamental right to own firearms.” The ad goes on to put Sotomayor’s nomination in the context of the rapid expansion of government under President Obama, noting that Obama nominated “a Supreme Court justice who would allow the government to confiscate firearms owned by law-abiding Americans.”

Committee for Justice executive director Curt Levey commented today on the radio ad:

“Since President Obama nominated Sonia Sotomayor to the Supreme Court, the Committee for Justice has been educating Americans about her record of judicial activism, her support for racial preferences, and her hostility to gun rights and property rights. Sotomayor’s belief that the Second Amendment is less important than the rest of the Bill of Rights and doesn’t apply to the 50 states has now emerged as the biggest issue in the debate over her confirmation.

“Sotomayor’s Second Amendment record is so bad that the National Rifle Association has come out against her confirmation – the first time in its history that the NRA has taken a position on a Supreme Court nominee.

“Given the high percentage of gun ownership and NRA membership in Alaska, we feel it is important that Alaskans get all the facts about Sotomayor’s Second Amendment record before the confirmation vote later this week. Neither Sen. Begich nor Sen. Murkowski has announced how they will vote, so Alaskans are in a great position to make a difference on this issue.”

McCain to Vote NO on Sotomayor

I admit that I am pretty shocked. A Yes vote strikes me as just the sort of mavericky thing that McCain would do, a la Graham. But credit where credit is due. McCain has a solid record with Hispanics and one of the most bipartisan resumes on either side of the aisle.  It will be interesting to see the media spin this one.

Sen. John McCain (R-AZ) announced today that he will vote against Sonia Sotomayor, Pres.Obama's nominee to become the first Hispanic SCOTUS justice.

McCain, in a Senate floor speech:

Again and again, Judge Sotomayor seeks to amend the law to fit the circumstances of the case, thereby substituting herself in the role of a legislator. Our Constitution is very clear in its delineation and disbursement of power. It solely tasks the Congress with creating law. It also clearly defines the appropriate role of the courts to "extend to all Cases in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties." To protect the equal, but separate roles of all three branches of government, I cannot support activist judges that seek to legislate from the bench. I have not supported such nominees in the past, and I cannot support such a nominee to the highest court in the land.

McCain voted against Sotomayor's nomination to the 2nd Circuit Court of Appeals in '98, so his decision is not entirely surprising. But like his friend and GOP colleague, Sen. Lindsey Graham (SC), McCain has decried the politicization of judicial nominations that led to a failed Dem filibuster of Justice Samuel Alito.