Committee for Justice Blog

Contraception & the GOP Debate

2012-01-07T23:17:00.006-05:00

Statement of CFJ Executive Director Curt Levey:

During tonight’s GOP debate, moderator George Stephanopoulos asked Mitt Romney “Do you believe states have the right to ban contraception, or is that trumped by a constitutional right to privacy?” Knowing that Romney and most Americans would not support a government ban on contraceptives, Stephanopoulos’ apparent goal was to trip up Romney, who believes that Roe v. Wade – in which the Supreme Court relied on a supposed constitutional right to privacy – was wrongly decided.

For non-lawyers, a general constitutional right to privacy was created by the Court in its 1965 Griswold v. Connecticut decision, which struck down an unenforced state law prohibiting contraception.

In addition to Romney, Rick Santorum and Ron Paul were drawn into the debate over Stephanopoulos’ question. Answering this question is perilous only if one skips over the distinction between the legal issue – was Griswold rightly decided as a matter of constitutional interpretation – and the political question – should states be prohibited from banning contraception as a matter of federal policy, presumably expressed through a federal statute or constitutional amendment.

Perhaps Stephanopoulos was trying to blur this distinction. Or perhaps – like most of the “living Constitution” crowd – he does not fully comprehend the distinction. In any case, we wish the GOP contenders had taken the opportunity to make the distinction clear, because it’s at the heart of the debate over judicial activism.

Opponents of judicial activism believe that judges’ policy views – say, on the desirability of a general right to privacy – should play no role in constitutional interpretation – for example, in determining whether the Constitution’s "penumbras" and "emanations" imply a right to privacy, as Griswold concluded. Believers in a “living Constitution,” on the other hand, advocate that judges should update the meaning of the Constitution to incorporate the evolving values of society (at least those of elite society).

Santorum, Romney & Judges

2012-01-04T13:19:00.007-05:00

Statement of CFJ Executive Director Curt Levey:

We congratulate Rick Santorum and Mitt Romney for their shared victory in Iowa last night and offer some brief thoughts on the sort of judicial nominations we can we expect from these men if one of them becomes president.

Although some conservatives have questioned Romney’s ideologically diverse judicial nominations as governor of Massachusetts, consider the context. Romney’s judicial nominations were made in the face of a Democrat-dominated Governor's Council that had the power to reject those nominations.

It is fairer to look at more recent indications and there we find reason for encouragement in the people Romney named to his Justice Advisory Committee in August. Its list of 63 members reads like a who’s who of the nation’s most accomplished conservative lawyers, including committee co-chairs Judge Robert Bork, Harvard Law School professor Mary Ann Glendon, and former FCC chair Richard Wiley. Assuming Romney relies on these same advisors when selecting judges, conservatives are likely to be happy with his judicial picks.

Rick Santorum has not been in a position to nominate judges but he had an outstanding track record on the judges issue as a U.S. Senator. We are confident that his approach to judicial nominations will reflect the passionate commitment to constitutionalism demonstrated by that record.

Writing in 2005, Third Branch Conference chairman Manny Miranda described Santorum’s leadership on the judges issue:

"No Republican senator has done more to make the confirmation of John Roberts possible, because no Republican senator is more responsible for making the judiciary issue a national electoral winner for Republicans, or for making colleagues understand its significance to constituents. No GOP senator did more to lay the groundwork for … effectively ending the Democratic filibusters. … The end result of Mr. Santorum's strategy was a net GOP gain of six seats in two elections."

Santorum’s efforts to lay the groundwork began with his organization of the 2003 ''anti-filibuster,'' which focused public attention on Democrats’ abuse of the judicial filibuster by keeping the Senate in session for 40 straight hours over the course of two nights. In November 2006, the New York Times agreed with Miranda’s assessment of the senator’s leadership, calling Santorum the “chief Republican proponent of underlining Democratic opposition to Mr. Bush's judicial choices.”

A few weeks earlier, Santorum became the first senator to sign the Fair Judiciary Oath, committing him to work for “a fair confirmation process.” In addition to CFJ and the Third Branch Conference, the sponsoring Fair Judiciary Oath Coalition included the American Center for Law & Justice, the American Conservative Union, the Family Research Council, the Judicial Confirmation Network, and other groups.

After leaving the Senate, Santorum spoke out against the confirmation of Sonia Sotomayor to the Supreme Court. Citing Sotomayor’s statement about the “better conclusion[s]” of a “wise Latina” judge, her controversial decision in the New Haven firefighters reverse discrimination case, and her claim that an appeals court is “where policy is made,” Santorum explained that

“Bias, elitism, the politics of separating people into classes and racial and ethnic pigeonholes are not what one would expect from a nominee of a president who promised to get us past that.”

###

While CFJ has not endorsed any of the presidential candidates, we will continue to comment on their approaches to the judges issue. Most recently, CFJ’s Curt Levey wrote about Newt Gingrich’s proposals for judicial reform in a December 23 Wall Street Journal op-ed.

Gingrich & Judges

2011-12-23T10:37:00.001-05:00

In an op-ed in today’s Wall Street Journal, the Committee for Justice’s Curt Levey discusses the wisdom and constitutionality of Newt Gingrich’s proposals for judicial reform and explains why they deserve serious consideration, warts and all. For example:

“Congress routinely asks executive branch officials outside the White House to testify about their decisions. It occasionally subpoenas them to compel attendance, and arrest would be a last resort. It's unclear why applying the same rules to the judicial branch threatens the separation of powers, especially if done in the context of considering judicial reform proposals like Mr. Gingrich's.”

Electoral Impact of AZ Immigration Case

2011-12-13T08:23:00.004-05:00

Hold on to your hats for what promises to be the most controversial and politically significant Supreme Court term in memory. The Supreme Court’s decision yesterday to review the constitutionality of Arizona’s immigration law ensures that illegal immigration will be on the front burner in next year’s presidential and Congressional elections. Likewise for both ObamaCare – which the High Court agreed to review last month – and the timely issue of federalism, which is at the heart of both the Arizona and ObamaCare cases. As an article (“SCOTUS in '12 election is enormous issue”) in Politico explains

“Together, the [two] cases will help shape the national political debate as well as the direction of policy on one of the most contentious issues of the election: the power of the federal government [over states and individuals].”

In an October 3 op-ed in The Hill, CFJ’s Curt Levey explained why the lineup of cases asking for Supreme Court review would “likely make this the most important term in decades, while focusing Americans on several of the nation’s most emotional and divisive issues … at the perfect time to influence the 2012 election.” With yesterday’s decision to review the Arizona’s immigration law, what was likely has now become certain.

Moreover, as Levey points out in the Politico article, it’s not just the caseload that will impact the election:

“Levey noted that because of the health issues and ages of the current justices, up to three seats could open in the next presidential term. ‘Combine that with the cases they’re taking, and it sets up the Supreme Court to be an enormous issue in this election.’”

While the Arizona case’s electoral impact is inevitable, the direction of the impact is not as clear. If the Supreme Court upholds most or all of the Arizona immigration law when it rules this spring, it will be a victory for conservatives both legally and – in the short term – politically, as more states are encouraged to enact such laws.

However, at the polls next November, a legal loss may turn into a political plus for Democrats. When the Arizona law was first enacted, liberal activists used it to energize Hispanics. Expect a repeat if the law is upheld, this time in a presidential election year and with Supreme Court appointments as an additional issue.

Mark Krikorian, blogging for National Review Online, went so far as to speculate that

“the White House privately wants to lose the [Arizona] case — that way, they get an irritant off the table that can motivate Obama’s opponents, while also being able to show their leftist allies how important it is to get out the vote, however disappointed they might be in [Obama’s] performance, because he’ll appoint justices that won’t rule like this.”

Should the Supreme Court, instead, strike down the heart of the Arizona law, it will be seen as a vindication of President Obama’s controversial decision to sue Arizona and other states with similar laws. That will provide him with a temporary political lift and some additional brownie points with Hispanic voters. But good news only goes so far in getting Hispanic voters – or any voters – to the polls.

Instead, it will be conservatives – forced to look to the federal government again to slow illegal immigration and angry at a Court that seems to side with elite opinion on social issues – who will be highly motivated to elect a president capable of addressing these concerns. Several of the GOP presidential candidates have already made an elitist judiciary a campaign theme, including proposing various ways to curb judicial activism. The Gingrich campaign has a 54-page position paper on the subject.

It’s not just conservative voters who will be moved by a Supreme Court decision that puts responsibility for fixing immigration law entirely on the shoulders of the federal government. Such a decision is likely to make immigration a bigger issue in the presidential election for a broad spectrum of voters. That can’t be good news for Barack Obama and Congressional Democrats when 74% of Americans think the Arizona law doesn’t go far enough or is about right (CBS News Poll).

Gun Issue Ends Halligan’s Bid for DC Circuit

2011-12-06T14:17:00.001-05:00

This afternoon, D.C. Circuit nominee Caitlin Halligan became the second Obama appeals court nominee defeated on the Senate floor when cloture failed by a vote of 54 to 45. The opposition of gun rights groups was the single biggest factor in her defeat.

Citing Halligan’s “attacks on the Second Amendment rights of law-abiding Americans,” the National Rifle Association opposed a judicial nominee for one of the few times in its history. Gun Owners of America cited Halligan’s “avid leader[ship] in the effort to destroy firearms manufacturers using frivolous litigation,” and the Citizens Committee for the Right to Keep and Bear Arms deemed her to be “Obama’s most radical anti-gun judicial nominee to date.”

Halligan’s defeat is part of a pattern that confirms our prediction that gun rights would become the “new abortion” in judicial confirmation battles. As CFJ’s Curt Levey explained in a 2009 op-ed:

“[With] the Supreme Court’s 2008 [Heller] decision recognizing the Second Amendment as an individual right … the Justices transferred the theater of war from legislatures to the judiciary. …That’s why I and others predicted that gun owners – their fate tied to the selection of judges in the wake of Heller – would emerge as a potent part of the coalition advocating … for judges who strictly interpret the Constitution.”

The emergence of the gun issue began early in President Obama’s first term when he nominated three controversial district court nominees: Louis Butler (WI), Edward Chen (CA), and John McConnell (RI). All three posed a clear danger of judicial activism, but only Butler had a troubling Second Amendment record. As a result, Butler still languishes in the Senate and will not be confirmed, while Chen and McConnell eventually won Senate confirmation.

Defeating a Supreme Court nominee is much more difficult, but it’s widely agreed that the Second Amendment concerns in the records of Sonia Sotomayor and Elena Kagan – which triggered the opposition of the NRA and other gun rights groups – pushed wavering senators to vote against Obama’s High Court nominees. Nearly every senator criticized, defended, or tried to counterbalance Sotomayor’s Second Amendment record in explaining their vote on confirmation. In the end, the 31 votes against the nation’s first Hispanic Supreme Court nominee surprised liberals and conservatives alike given both initial predictions and the mere three votes against Ruth Bader Ginsburg.

Similarly, many of the 37 votes against Elena Kagan – the most votes against a Democratic Supreme Court nominee in more than a century – can be attributed to the gun issue.

Why does this matter? As Levey explained in a 2010 op-ed:

“[The gun issue] changes the political dynamics of the judicial confirmation process, shifting the center of gravity by adding a large constituency with a long track record of effectiveness – including influence over moderate Democrats – to the coalition opposing the nomination of liberal judicial activists.”

And unlike the abortion issue, there’s no comparable countervailing force on the pro-gun control side of judicial confirmation fights.

Gun Rights at Stake in Halligan Vote

2011-12-02T13:06:00.006-05:00

Statement of CFJ Executive Director Curt Levey:

Never before have we used the word “urgent” in this space, but Senate Democrats are just a few days away from putting Caitlin Halligan – a committed opponent of gun rights, an apologist for enemy combatants and an all-around judicial activist – on the U.S. Court of Appeals for the D.C. Circuit. Save for the Supreme Court, the D.C. Circuit is the most important court in the nation and this is the most important vote on an Obama judicial nominee to date.

Last night, Senate Majority Leader Harry Reid announced that he will try to invoke cloture on Halligan’s nomination next Tuesday, December 6, at noon. If Reid gets 60 votes on cloture, Halligan will get a lifetime seat on a court that plays a crucial role in national security cases and heard the two biggest Second Amendment cases of our lifetimes, McDonald v. Chicago and District of Columbia v. Heller.

Moreover, the D.C. Circuit is the only court short of the Supreme Court that can stop the Obama Administration’s practice of using regulatory power grabs to accomplish what the President can’t get through Congress. This court is also the top training ground for future Supreme Court nominees.

For all these reasons, it’s urgent that you contact the key senators who will determine whether Reid gets 60 votes (see list below) and tell them to vote no on cloture for Halligan. Urge your friends, colleagues and members to do the same. Calling (202) 224-3121 will get you connected with the Senate office of your choice.

Do not settle for a senator’s promise to vote against confirmation of Halligan if the cloture vote succeeds in forcing a confirmation vote. Such a promise is useless because the battle will be over if Reid wins the cloture vote.

Explain to the senators that, while voting against cloture on a judicial nominee should not be taken lightly, Halligan’s extreme views satisfy the Gang of Fourteen’s “extraordinary circumstances” standard for doing so. Only a few of President Obama’s judicial nominees have met the high threshold of “extraordinary circumstances” and, accordingly, the Committee for Justice has opposed only a handful of Obama nominees. But Halligan clearly meets the threshold. No Obama nominee, save for Supreme Court nominees, is more likely to do damage to the Constitution if confirmed than Ms. Halligan.

Most Republican senators can be counted on to vote against cloture. The remaining ten or so Republicans understand the importance of keeping judicial activists off the D.C. Circuit, but need to be reminded why Caitlin Halligan meets the “extraordinary circumstances” standard. Based on past votes, GOP senators in the latter category likely include Lamar Alexander (TN), Scott Brown (MA), Susan Collins (ME), Lindsey Graham (SC), Mark Kirk (IL), Richard Lugar (IN), John McCain (AZ), Lisa Murkowski (AK), Olympia Snowe (ME), and John Thune (SD).

The Democratic leadership will be cracking the whip hard on this cloture vote, but a couple of moderate Democrats concerned about Halligan’s Second Amendment and national security records might be convinced to vote against cloture. Among the Democrats who might fall into this category are Sens. Mark Begich (AK), Bob Casey (PA), Joe Manchin (WV), Claire McCaskill ( MO), Ben Nelson (NE), Jon Tester MT), and Jim Webb (VA).

Remind these senators that the circumstances of Halligan’s record are extraordinary enough to prompt the National Rifle Association to oppose this judicial nomination, something the NRA has done only a few times. As the NRA’s letter explains:

“Our opposition is based on Ms. Halligan's attacks on the Second Amendment rights of law-abiding Americans. Specifically, she worked to undermine the Protection of Lawful Commerce in Arms Act (PLCAA), enacted in 2005 with strong bipartisan support. This legislation was critically important in ending a wave of lawsuits … which sought to blame firearms manufacturers and dealers for the criminal misuse of their products … Among the governments that sued the industry was the state of New York … while Ms. Halligan was New York's solicitor general, and she strongly supported the litigation [against numerous gun manufacturers] both inside and outside the courtroom.”

Gun Owners of America oppose Halligan’s nomination for similar reasons, adding in their letter that Halligan “attempted to conceal the extent of her anti-gun animus” in her written testimony to the Senate Judiciary Committee.

Remind senators of Halligan’s troubling views on national security issues. For example, she signed a 2004 manifesto deeply critical of the War on Terror. The document urges that enemy combatants be tried in civilian courts and given the same constitutional protections afforded ordinary criminals. It further argues that Congress’ 2001 Authorization for Use of Military Force Against Terrorists does not allow dangerous enemy combatants to be indefinitely detained, a position rejected by both the Obama administration and the Supreme Court. Halligan has made these same arguments in amicus briefs as well.

Remind senators that additional concerns about Halligan’s willingness to refrain from judicial activism are prompted by her record of hostility to the death penalty and sympathy for racial preferences and the invention of a constitutional right to same-sex marriage. Even more troubling are her arguments, made while serving as New York’s Solicitor General, that pro-life protestors can be sued for extortion and illegal aliens can sue for back pay. The U.S. Supreme Court rejected both arguments.

Remind senators that nominees to the all-important D.C. Circuit are subject to extra scrutiny. During the Bush Administration, Democrats opposed several magnificently qualified nominees to the D.C. Circuit, including Miguel Estrada, whose nomination was defeated by multiple filibusters, and Peter Keisler, who waited in vain for two years to get a vote in Sen. Leahy’s Judiciary Committee. The seat to which Halligan has been nominated is vacant only because Senate Democrats set the bar so high during the last Administration.

Finally, remind senators that, even if they believe support for controversial nominees may be warranted where judicial vacancies have been declared emergencies, the D.C. Circuit has the opposite problem. It has too many judges for its workload, as Senate Democrats reminded us while holding up Peter Keisler’s nomination. The D.C. Circuit’s number of cases per judge is only about 25% of the average workload in the other 12 circuits and is shrinking.

ObamaCare: Electoral Impact & Kagan Recusal

2011-11-14T12:17:00.010-05:00

The Supreme Court’s announcement today that it will review the constitutionality of ObamaCare ensures that the health care law will be one of the biggest issues in next year’s presidential and Congressional elections. Federalism – including the Tenth Amendment and Congress’ enumerated powers – will also be a prominent election issue because the Court’s decision will have even larger implications than the fate of ObamaCare. The decision will answer the momentous and timely question of whether there are any real limits on the federal government’s power over states and individuals.

See here for my recent op-ed in The Hill explaining why ObamaCare and several other cases knocking on the High Court’s door will make this the most politically important Supreme Court term in decades.

There’s no doubt about the magnitude of ObamaCare’s impact on the 2012 elections, but the direction of the impact is not as clear. If the Supreme Court upholds ObamaCare in its entirety, it will be seen as a victory for President Obama and Congressional Democrats, which would likely provide them with some electoral momentum. On the other hand, such a decision by the Court would throw responsibility for reforming ObamaCare entirely on the shoulders of the new Congress and President, thus making it an even bigger election issue. That might be bad news for Democrats given ObamaCare’s continual poor showing in the polls.

Conversely, if the High Court strikes down ObamaCare in its entirety, it would be a victory for Republicans, giving them the electoral momentum, but at the same time largely depriving them of one of their best election issues.

Finally, if the Supreme Court strikes down one or more of the challenged ObamaCare provisions – the individual insurance mandate or the expansion of Medicaid – but leaves much of the statute in effect, it would likely be the worst case for Democrats. Republicans would be able to say “I told you so,” while candidates would be forced to focus on how to repair the shattered statute, with Democrats on the defensive.

As you can see, what outcome political partisans root for in the Supreme Court will depend on whether they are most concerned about ObamaCare or the 2012 elections.

Meanwhile, today’s Supreme Court announcement brought no indication that Justice Elena Kagan will recuse herself from the ObamaCare case, despite being required to do so under federal law. The requirement arises from Kagan’s documented involvement, as U.S. Solicitor General, in the Administration’s preparation for the legal defense of ObamaCare’s constitutionality. Federal law – specifically 28 U.S.C. §455(b)(3) – requires recusal where a judge “has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”

We take Kagan at her word that she walled herself off from the defense of ObamaCare after she was nominated to the Supreme Court in May 2010. However, she had already been involved in the defense for several months at that point, as indicated by documents obtained under the Freedom of Information Act (FOIA).

The Obama Administration has been slow and only partially responsive in responding to FOIA requests for documents related to Kagan’s involvement in ObamaCare’s defense, so it is difficult to determine the depth of that involvement. However, the plain text of 28 U.S.C. §455(b)(3) makes it clear that the requirement for recusal applies regardless of her degree of participation.

The Committee for Justice calls again for Justice Kagan to recuse herself from the ObamaCare case, as required by federal law, when it is heard and decided next spring.

Cain & Sexual Harassment Allegations

2011-10-31T06:38:00.006-04:00

The following is CFJ Executive Director Curt Levey’s statement on the allegations against presidential candidate Herman Cain. Levey, a 1997 graduate of Harvard Law School, is an expert on issues of racial and gender discrimination. While CFJ has not endorsed Cain or any of the other presidential candidates, its mission includes educating Americans about the rule of law.

In light of last night’s Politico story about allegations against Herman Cain, it is important to clarify the legal meaning of the term “sexual harassment.” Specifically, Politico reports allegations that Herman Cain made an “an unwanted sexual advance” and engaged in "innuendo or personal questions of a sexually suggestive nature." Politico suggests that this amounts to sexual harassment, using the term at least six times.

The truth is that the reported allegations, even if true, do not constitute sexual harassment under the law unless – as the Supreme Court has stated – they are "sufficiently severe or pervasive" to “create an abusive working environment,” among other requirements. Even the guidance of the decidedly liberal U.S. Equal Employment Opportunity Commission cautions that "sexual attraction may often play a role in the day-to-day social exchange between employees" and that

“[S]exual flirtation or innuendo, even vulgar language that is trivial or merely annoying, would probably not establish a hostile environment.”

The “severe or pervasive” requirement is not a legal technicality. Sexual harassment in the workplace is an important problem and trivializing the term undermines the seriousness with which cases of severe and pervasive harassment are taken. There is no suggestion in the Politico article that Cain’s alleged behavior was either severe or pervasive, so at least for now, the suggestion of sexual harassment is unsupported.

Politico places a lot of weight on the report that “there were financial settlements in two cases in which women leveled complaints [against Cain].” In fact, without knowing more about the details of the settlements, it’s impossible to draw any conclusions from them. Corporate America is very risk averse when it comes to negative publicity, and in-house settlements often occur even when the evidence of harassment falls far short of the threshold needed to be taken seriously by a court.

Clarence Thomas & Affirmative Action

2011-10-24T10:56:00.005-04:00

Twenty years ago today, Clarence Thomas was officially sworn in as a Justice of the U.S. Supreme Court in a small ceremony at the Court. National Review Online marks the occasion with a symposium on Justice Thomas’ impact on the High Court and society. Among the contributors is the Committee for Justice’s Curt Levey, who concludes that

Nowhere is Clarence Thomas’s independent thinking, clarity, and courage more powerful than on issues of race. … Largely because of [his voice on the subject], Thomas has grown from being the first black conservative on the Court to the most influential black conservative of our lifetime.

Levey cites Thomas’ 2003 dissent in Grutter v. Bollinger (upholding racial preferences at the University of Michigan Law School) as the finest example of that voice, noting that it forced even his critics “to acknowledge the genuineness of both his pride in the capability of blacks and his anger at those who demean that ability with preferences.” The full text of Curt’s piece is here and the entire symposium can be found here.

To Justice Thomas’s great disappointment, the Grutter decision left colleges and universities with plenty of latitude to continue their use of racial preferences in admissions in pursuit of diversity. However, that latitude will likely narrow or possibly even disappear before the Supreme Court completes its 2011-12 term next June.

The likely change arises from Fisher v. University of Texas, a lawsuit challenging UT-Austin’s use of race in admissions despite the school’s proven success in achieving racial diversity using non-race-based methods. In a recent discussion of the case at the leading Supreme Court blog, SCOTUSblog, experts agreed that the High Court is likely to add Fisher to its docket for the current term.

CFJ’s Curt Levey was among those contributing to the consensus. His SCOTUSblog post concludes that

Fisher gives the five Justices who are suspicious of racial preferences an excellent opportunity to push universities closer to a middle ground in which they consciously seek racial diversity through plans like the Top Ten Percent with little or no explicit use of race.

Curt’s full explanation of why the Court is likely to take the case can be found here. The entire SCOTUSblog discussion can be found here.

Michelle Obama on Judges

2011-10-04T16:38:00.000-04:00

First lady Michelle Obama and CFJ’s Curt Levey agree about one thing: “the Court's direction will be at stake in the 2012 election.” So said Ms. Obama at a fundraiser in Rhode Island a few days ago. That echoes Levey’s forecast in an op-ed in The Hill:

“The electoral focus on judges in 2012 will not be misplaced. The ages of several Supreme Court Justices and the closely divided makeup of the Court means that its ideological balance – and with it, the fate of gay marriage, abortion, illegal immigration and the like – could swing wildly in either direction after 2012.”

David Ingram of the Legal Times characterizes Ms. Obama’s comments as

“a rare example, so far, of President Barack Obama’s reelection effort trying to build support by highlighting his judicial appointments.”

High Court Will Impact Election

2011-10-04T09:16:00.002-04:00

In an op-ed in The Hill, CFJ Executive Director Curt Levey takes a look at the new Supreme Court term and concludes that

“Lovers of political drama couldn’t ask for a more fortuitous confluence of events: the most emotional issues dividing the nation – illegal immigration, gay marriage, ObamaCare, racial preferences, and the legitimacy of federal power – all likely arriving at the Supreme Court during a single presidential election year.
. . .
[This] will not only focus candidates and the public on the emotionally charged issues at stake, but will also thrust the ‘judges issue’ – the Supreme Court, judicial activism, the next President’s judicial nominations, and the Senate’s role in scrutinizing those nominees – to the forefront of the 2012 campaign debate.”

Let the People Choose Their Judges

2011-08-25T14:36:00.000-04:00

Former Michigan Supreme Court Chief Justice Clifford Taylor explains in a video interview why electing judges is a much better method of judicial selection than so-called “merit selection” panels, which virtually ensure the appointment of liberal judges. In a 2008 election, Taylor lost his seat on the Michigan Supreme Court as the result of dirty campaign tactics by his opponent. So his endorsement of judicial elections has tremendous credibility. Says Taylor,

“Elections may have some warts but they’re beauty queens compared to merit selection.”

Who’s to Blame for Judicial Vacancies?

2011-08-25T11:28:00.014-04:00

On last night’s PBS NewsHour, Committee for Justice executive director Curt Levey discussed the politics of confirming President Obama's judicial nominees with Caroline Fredrickson, executive director of the American Constitution Society. Judy Woodruff hosted the discussion.

A transcript of the interview and streaming video are available on the NewsHour web site, and audio of the interview can be downloaded. Here are some excerpts:

CURT LEVEY: Caroline accurately pointed out that there are 20 pending [nominees] who have gotten out of committee. But that's only 20 out of 91 vacancies. And all but one of those 20 are just a matter of weeks or, at most, a couple of months, which is a very short time historically. I mean, there are many of Bush's nominees who waited literally years after they got out of committee. There were some nominees who were waiting throughout most of the eight years. So the fact that there's only one out of the 20 who's even been waiting three months I think tells you that things are going fast.
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CURT LEVEY: I don't think [the judicial vacancy rate] has much to do with anything the Republicans are doing. It has to do with a very slow nomination pace by the Obama administration. Obama is not making confirmations a priority, nor is Sen. Reid, the majority leader. Also, there's just been, let's face it, a general breakdown in courtesy in the Senate. And so all issues get affected, including judges. And there were also two Supreme Court vacancies in Obama's first two years, which, for about six months [bring other confirmations to a halt].
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CAROLINE FREDRICKSON: Thirty-seven of those vacancies represent judicial emergencies. And that is a term that's been defined by the Administrative Office of the Courts to represent an extremely high caseload. And what that means, what that translates into for ordinary Americans is an extremely long wait before their vital case can get heard.
…
CURT LEVEY: I do agree that judicial emergencies should be given priority. But, again, let's remember that judicial emergency is not just defined by caseload. It's also defined by how long the vacancy has existed. And, again, that vacancy may have existed for a long time because Obama was very slow to appoint a nominee.

Obama Justice Dept: Moderates Need Not Apply

2011-08-19T09:03:00.001-04:00

This month, Pajamas Media has run an excellent series of articles about the radical hiring practices of the Obama Justice Department’s Civil Rights Division, including the Voting Section (here & here), Education Section, Special Litigation Section, and Immigration Office.

The series, authored by Hans von Spakovsky, J. Christian Adams and Richard Pollock, has unarguably demonstrated that

“[E]very single one of the career attorneys hired since Obama took office has a fringe leftist ideological bent and nearly all have overtly partisan pasts. Every single one. … Acting Assistant Attorney General Loretta King rewrote hiring guidelines in 2009, resulting in hiring committee members being forced to toss any resume that did not describe a radical background.”

This from the same Democratic party that investigated and harassed the George W. Bush Administration for adding a little bit of ideological diversity to the Justice Department’s career attorney staff by hiring a handful of conservative lawyers.

Obama's Latest Assault on the Commerce Clause

2011-08-08T18:01:00.000-04:00

From the Billings Gazette:

Tractors lumbering down country roads are as common as deer in rural Montana, but the federal government wants to place new driving regulations on farmers and ranchers.

"It's a huge deal for us," said John Youngberg of the Montana Farm Bureau. After years of allowing state governments to waive commercial driver's license requirements for farmers hauling crops or driving farm equipment on public roads, the Federal Motor Carrier Safety Administration is poised to do away with the exceptions.

Regulators are suggesting that all wheat shipments be considered interstate, even when farmers making short hauls to local grain elevators aren't crossing state lines. The change would make commercial driver's licenses — and all the log books and medical requirements that go with them — a necessity for farmers. Some might not qualify. ...

FMCSA argues that because grain will ultimately be shipped out of state, it should be regulated as an interstate product at every transportation step. Treated as a product destined to cross state lines, grain becomes federally regulated under the commerce clause of the U.S. Constitution.

Judicial Diversity, S&P and BB Amendment

2011-08-08T11:48:00.002-04:00

Statement of CFJ Executive Director Curt Levey:

This weekend brought two reminders of the looming battle over a balanced budget amendment: Standard & Poor’s downgrade of the U.S. credit rating and the passing of former Oregon Senator Mark Hatfield.

In announcing the downgrade, S&P cited the weakened “effectiveness, stability, and predictability of American policymaking and political institutions” and the “the difficulties in bridging the gulf between the political parties over fiscal policy.” A balanced budget amendment (BBA) would go a long way to addressing these problems. A constitutional amendment is, by design, far more stable and predictable than legislation. And getting the two-thirds vote in the Senate and House needed to pass a BBA would be a dramatic demonstration of “bridging the gulf between the political parties.”

A BBA is not a perfect solution to our nation’s debt problems. In particular, the amendment must be carefully crafted to address concerns about the role of the courts in enforcement. But what is the alternative? Does anyone seriously believe that legislation alone will get us within a hundred miles of a balanced budget, no less do it in a stable and predictable way?

If today’s obituaries for liberal Republican Senator Mark Hatfield are any indication, he will be remembered for casting the vote which defeated a balanced budget amendment in 1995. The amendment got broad bipartisan support in Congress, breezing to passage in the House by a 300-132 margin, but failing in the Senate by just one vote when Hatfield became the lone Republican to vote no.

Getting a BBA approved by two-thirds of each house is a steep obstacle. But the closeness of the 1995 vote – at a time when concerns about the ballooning national debt had not yet reached today’s levels – reminds us that it’s doable. All Republicans will likely be on board this time. And as a New York Times article noted last week, “for Democrats seeking to redefine themselves as careful fiscal stewards on the cusp of the 2012 campaign, the idea of a balanced budget amendment free of hard-line provisions is not an impossible sell.”

For our discussion of why last week’s debt deal provides an incentive for Congress to pass a BBA, see here.

It’s not often that we cite the New York Times twice in one day, but yesterday’s Times had a balanced article on the diversity of President Obama’s judicial nominees. In it, I touched upon several issues – non-discriminatory methods of achieving diversity, the high proportion of African-American nominees (relative to their proportion in the population and bar), and the mathematical reality that the weights given to race and other selection criteria for nominees can’t add up to more than 100 percent:

“Diversity is a good thing, but how do you achieve it — by quotas?” [Levey] said. “Do you achieve it by lowering your standards? Or do you achieve it by removing any discriminatory barriers that might exist and by casting a wide net?”
“The more you focus on race and gender,” Mr. Levey added, “the less you’re going to focus on other traditional qualifications — that’s simply the math of it.”
Besides, he said, “If you believe in proportionalism, as the Obama administration appears to, given the way they tout these numbers, the other races are, to some degree, getting stiffed.”

In the article, I also commented on Democrats’ allegations that Senate Republicans have orchestrated a slowdown in the confirmation of noncontroversial judicial nominees:

Mr. Levey said that while his group and others had mounted resistance to several Obama nominees, including Goodwin Liu, a nominee to the United States Court of Appeals for the Ninth Circuit who withdrew after a Senate filibuster, there was no overarching campaign to slow the process.
“If there is a plan to delay these noncontroversial nominees, nobody has told me about it,” he said. He instead attributed the pace of confirmations to “the general lack of cooperation on all issues” in Congress.

Debt Deal Boosts BB Amendment

2011-08-01T15:16:00.003-04:00

CFJ Executive Director Curt Levey on the Balanced Budget Amendment provisions of the debt deal:

As long-time advocates for a constitutional approach to limiting federal spending – the only type of budget reform capable of binding future Congresses – we are disappointed that the budget agreement worked out yesterday does not contain the Boehner bill’s requirement that a balanced budget amendment (BBA) be approved by the Senate and House and sent to the states. While we take no position on support for the agreement (the Budget Control Act of 2011 or BCA), we did find a bit of good news for BBA supporters in the bill. It contains not just a requirement that both houses of Congress vote on a BBA – the sole focus of most press reports – but also an incentive for Congress to approve a BBA.

To understand the incentive, it is necessary to clarify some confusion about the relationship between 1) the bill’s BBA provisions – providing for a debt limit increase of $1.5 trillion this winter if the BBA is approved by Congress; 2) the spending cuts of up to $1.5 trillion to be recommended by a special Joint Committee – resulting in a debt limit increase of up to $1.5 trillion if the cuts are approved by Congress; and 3) the $1.2 trillion in across-the board spending cuts triggered automatically if #2 fails – resulting in a debt limit increase of $1.2 trillion this winter. Reliable sources on the Hill have confirmed that, while Congressional approval of a BBA is a substitute for the Joint Committee cuts in the sense of enabling the $1.5 trillion debt limit increase, that substitution would not eliminate the automatically triggered cuts.

Some BBA supporters would have preferred that passage of a balanced budget amendment eliminate the triggered cuts, in order to give Democrats the maximum incentive for coming around to support the amendment. Nonetheless, the BCA was specifically designed to incentivize Congress to choose action – approved cuts or passage of the BBA. For example, either option provides the extra $300 billion in debt limit hikes necessary to see the Administration through the election if the economy and thus revenues continue to falter.

While the vast majority of Congressional Republicans need no incentive to vote for a BBA, most Democrats currently oppose the amendment. The hope for BBA supporters is that moderate Democrats can be turned around through a combination of public pressure – numerous surveys show that a large majority of American support a BBA – and a preference for wishful thinking – specifically the hope that the BBA won’t get the required approval of 38 states – over immediate, hard choices about what cuts to make.

The requirement that constitutional amendments be approved by two-thirds of each house is a steep obstacle, but it’s hardly an insurmountable one. In 1995, a balanced budget amendment got broad bipartisan support in Congress, breezing to passage in the House by a 300-132 margin and failing in the Senate by just one vote.

Interestingly, a united GOP could, intentionally or not, increase the probability of Democrats opting for a BBA by cutting off the other option for Congressional action – that is, by blocking approval of the $1.5 trillion in cuts in the Joint Committee or in the House. Whether the increased odds of BBA passage are worth the loss of the Joint Committee cuts depends on what sort of BBA gets out of Congress. The BCA does not address the details of a balanced budget amendment. But we will: a good balanced budget amendment is one that would cap federal spending at about 18% of GDP, require super-majorities in Congress for tax increases, and mandate a balanced budget fairly quickly, say five years after ratification.

The BCA gives supporters of a balanced budget amendment at least two months – a BBA vote is mandated sometime between this October and December – to translate broad public support for a BBA into the sort of political momentum that would make it difficult for moderate Democrats to vote against the amendment. Regrettably, the BBA did not take center stage in this summer’s debt ceiling debate until shortly before the House voted on it as part of the Cut, Cap & Balance bill. As a result, the momentum-building process for the BBA got a late start. The time between now and October gives BBA supporters plenty of time to erase the disadvantages of a late start.

In sum, while the BBA provisions in the Budget Control Act fall far short of our legislative ideal – a requirement for Congressional approval of a BBA with both spending caps and a super-majority requirement for tax increases – they are better than what’s been described in most press reports and offer some modest hope to BBA supporters.

Finally, we note that while constitutional budget reform is likely the most reliable approach, some permanent quasi-structural reform has already been achieved this summer with the establishment of a new normal for debt ceiling increases. Until now, the debt ceiling increases that enabled and fueled today’s out-of-control budget deficits were essentially automatic – devoid of debate and largely unopposed. We suspect that will never be the case again, thus ensuring a dramatically different budget playing field in the years to come.

"How Campaign Finance Laws Made the British Press So Powerful"

2011-07-26T08:59:00.002-04:00

A lesson in unintended consequences from across the pond.

"As a result, whoever controls the newspapers has a much greater capacity to steer the course of an election debate. Given the relatively small number of titles with a national audience and levels of concentration, this influence lies in the hands of a small number of companies. News Corporation alone has over a third of the market share for national newspapers. This explains why so many politicians went out of their way to win the favour of Rupert Murdoch and his lieutenants. While elections are not won or lost as a result of a newspaper endorsement, most politicians do not want to take the risk of receiving unfavourable coverage.

To some, this situation may reveal the problem of campaign finance laws: By trying to prevent parties from spending large sums of money and stopping wealthy independent organizations from dominating the campaign, the relative voice of the newspapers is enhanced. But rather than admit that campaign finance laws are futile, one might also conclude that controls on campaign spending should be complemented by attempts to address media power.

The most obvious strategy in this regard is to limit the concentration of the media. Given the unrivalled capacity to engage in unrestrained electoral advocacy that comes with owning a newspaper, it is important that no single person or company be able to dominate the market. Others, by contrast, have called for the regulation of media content. Most of the content regulations being discussed at present are aimed at stopping invasions of privacy and preventing the acquisition of information through hacking and blagging. There have, however, been some calls that newspapers be required to cover political matters with due impartiality, as is required on UK television and radio. But even at the height of anti-Murdoch feeling, such a far-reaching measure seems very unlikely to be pursued.

Such measures would be unthinkable under the First Amendment—but much of the UK campaign finance laws would not survive that standard either."

No Obstruction of Minority Nominees

2011-07-21T15:38:00.003-04:00

Today’s Politico reminds us of the Left’s fallacious claim that, thanks to Republicans, “the Senate has been particularly slow to confirm Obama’s diverse candidates.” For example, Caroline Fredrickson, executive director of the American Constitution Society, charges that

“The president has tried to diversify the federal bench, but this effort has hit a wall of Republican obstructionism in the Senate.”

Politico also presents the other side with this quote from me:

“In an attempt to play the race card, the left ignores the obvious fact that when you increase the percentage of female and minority nominees, you also necessarily increase the number women and minorities that get caught up in the myriad of practical and political delays typical of judicial nominations. If senators perceive that race and gender are becoming more important in the selection process than finding the most qualified nominee, that can also add to the delays.”

Med Mal Reform a Key to Budget Deal

2011-07-20T08:03:00.003-04:00

Statement of CFJ Executive Director Curt Levey:

The Committee for Justice applauds the inclusion of medical malpractice reform in the bipartisan Gang of Six debt ceiling plan that was reported to be gaining traction on both ends of Pennsylvania Avenue yesterday. CFJ takes no position on the overall structure of a deal. However, we believe the inclusion of malpractice reform in any compromise is good news both for conservatives’ long-held goal of reforming the nation’s medical liability system and – because it will encourage conservatives’ acceptance of a deal – for hopes of resolving the debt ceiling impasse.

The Gang of Six plan follows the recommendation for “an aggressive set of reforms” to the medical liability system contained in the December 2010 budget-balancing report of the bipartisan Bowles-Simpson Commission. The Commission concluded that the current liability system “leads to an increase in health care costs … both because of direct costs – higher malpractice insurance premiums – and indirect costs in the form of … ‘defensive medicine.’” Accordingly, the commissioners recommended at least four major changes to the rules of malpractice litigation, in addition to the creation of specialized “health courts” for medical malpractice lawsuits.

Under the Gang of Six plan, the final details of medical malpractice reform would fall to the Judiciary Committee. The Gang’s plan requires various congressional committees to write the legislation implementing the plan’s promised savings in entitlement programs.

Medical malpractice reform is arguably conservatives’ favorite prescription for containing health care costs. Thus, its inclusion in the Gang of Six plan could play an important role in motivating otherwise skeptical House Republicans to support the plan.

The bad news is that the initial summary of the Gang of Six plan released yesterday contains no specifics about the malpractice reform. To be worthy of conservatives’ support, a final debt ceiling compromise must contain specifics, such as a requirement for implementing all of the litigation rule changes recommended by the Bowles-Simpson Commission and a specific savings target that would encourage aggressive implementation of the reforms. As the details of the Gang of Six plan are hashed out, we encourage Republican negotiators to focus on these specifics.

A study by PriceWaterhouseCoopers estimated that ten percent of the nation’s health care spending is consumed by the costs of defensive medicine, medical malpractice insurance, and malpractice litigation. Thus, if done right, aggressive medical malpractice reform would result in huge budget savings through lowered Medicare, Medicaid, and other federal spending for health care.

Including malpractice reform in a deal would not only help sell it to conservatives, but would also make it popular with the American people generally. After all, “83 percent of the nation's electorate want Congress to address reform of the medical malpractice system as part of any health care reform plan,” according to a 2009 survey reported by Medical News Today.

Finally, fairness requires the inclusion of malpractice reform in any budget deal. Given that up to 40 percent of medical malpractice lawsuits are groundless, according to a study by the Harvard School of Public Health, reigning in the excesses of trial lawyers in this area is a moral as well as financial imperative. As the Bowles-Simpson Commission implicitly recognized, those excesses are part of the reason for our runaway budget deficit. If the pain of balancing the budget is to be shared by all, surely trial attorneys must bear their share of the burden.

As former Democratic National Committee chairman Howard Dean admitted, the only reason why medical malpractice reform was not included in ObamaCare was “because the people who wrote it did not want to take on the trial lawyers." If President Obama and Congressional Democrats are now ready to take on the trial lawyers, we welcome their help in accomplishing this important and long-sought reform.

Calls for Ginsburg’s Resignation

2011-07-09T15:09:00.002-04:00

The past week has seen two pieces on the growing chorus of calls from the Left for Justice Ginsburg to step down now, while she is assured of having her replacement named by President Obama. The Associated Press notes that

“Ginsburg has said gracefully, and with apparent good humor, that the president should not expect a retirement letter before 2015. She will turn 82 that year, the same age Justice Louis Brandeis was when he left the court in 1939. Ginsburg, who is Jewish, has said she wants to emulate the court's first Jewish justice.”

Yale Law School Professor Stephen Carter argues that the calls for Ginsburg’s resignation arise from “the [mistaken] belief that judges exist, in effect, to serve a constituency. Carter emphasizes the importance of Justices, instead, remaining impartial where

“’Impartiality’ means not that members of the court have no views, but that their ultimate fealty is to the Constitution and the institution they serve, rather than to particular issues or movements.”

Well said, especially for a Yale law professor.

Sen. Lee on 14th Amendment & Debt Limit

2011-07-08T10:38:00.005-04:00

A Picture Worth 1,000 Words

2011-07-08T10:28:00.001-04:00

Randy Barnett on Curt Levey's Article in American Spectator

2011-07-01T15:55:00.000-04:00

From Randy Barnett at the Volokh Conspiracy, in a post titled "The Dangerous Effort to Delegitimate Supreme Court Justices:"

The motive for this assault?
When explaining why he introduced his Supreme Court ethics bill, Rep. Murphy admitted “My interest is certainly piqued by the fact that [the justices] may be taking on...the health care law.” Rep. Weiner was even more brazen in explaining the letter he and colleagues wrote to Thomas: “If Justice Thomas does not recuse himself and the Court rules [against] the law, I will be making the point that this is not a credible decision.” In other words, the plan is to try intimidation, and if that fails to produce a Supreme Court decision upholding Obamacare, the backup plan is to delegitimize the Court’s ruling in the eyes of the public.

Yes, that Anthony Weiner, who was until recently the point person making these charges. The existence of this assault is clear, and was continued this week by the New York Times advancing another empty charge against Justice Thomas. This is a very dangerous maneuver. Just as the personal attacks on Republican judicial nominees discourage many qualified persons from accepting nominations and have resulted in a downward spiral of tit-for-tat personal attacks on Democratic nominees, this sustained “ethics” attack on conservative justices will eventually lead to similar attacks on the liberals. No one is so virtuous as to be above false attacks. This campaign will also serve to undermine the bite of genuine ethical lapses, which will inevitably get lost amid the noise of manufactured pseudoscandals. When “ethics” is used as a political weapon, ethics will ultimately suffer. And, in the process, the authority of the Supreme Court, which relies on its authority rather than on its power, will be undermined. By this route, another check in the scheme of “checks and balances” on Congressional and Presidential power will be dangerously weakened.

There is absolutely nothing wrong with criticizing the substance of decisions of the Supreme Court, and there is much to criticize. And there is nothing wrong with bringing genuine ethical lapses and conflicts-of-interest to light. But baseless politically motivated personal attacks on sitting justices are another matter entirely. Although nothing can stop these ad hominem attacks by activists from continuing, one way of muting their influence is simply to be more aware of their sources and motives. Reading Levey’s article is a useful start.

Race Decision: Outrageous Judicial Activism

2011-07-01T14:16:00.003-04:00

Statement of CFJ Executive Director Curt Levey on today’s decision invalidating Michigan’s ban on racial preferences:

In one of the most outrageous examples of judicial activism ever seen, a 3-judge panel of the U.S. Court of Appeals for the Sixth Circuit has struck down the voter-approved Michigan Civil Rights Initiative (MCRI), which bans racial and gender preferences in Michigan’s public employment, education and contracting.

In today’s 2-1 decision, two Clinton appointees came to the startling conclusion that MCRI violates the U.S. Constitution’s Equal Protection Clause because it “reordered the political process to place special burdens on racial minorities.” Their reasoning: “a Michigan citizen seeking that Michigan universities adopt race-based admissions policies must now begin by convincing the Michigan electorate to amend the Michigan Constitution.”

This reasoning is completely disingenuous because the purpose of all constitutional amendments is to reorder the political process in a way that can’t easily be reversed.

Even the very liberal Ninth Circuit rejected this reasoning in its 1997 decision upholding California’s Proposition 209, the preference ban on which MCRI is based. Noting that the Fourteenth Amendment’s Constitution’s Equal Protection Clause barely permits racial preferences, the Ninth Circuit reminded us that “The Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits.”

In other words, the Constitution’s equal protection guarantee cannot possibly mean that states are prohibited from amending their Constitutions to ensure equal protection of all races. The argument to the contrary was widely considered to be a legal stretch when first made by Proposition 209’s opponents, and it lost any plausibility once rejected by the liberal Ninth Circuit. Its resurrection in the Michigan case was not taken seriously before today’s “gift” of judicial activism from the Sixth Circuit.

In 2006, the MCRI ballot initiative was approved by 58% of voters in the liberal-leaning Michigan despite the initiative’s opponents outspending the supporters by an enormous margin. That shouldn’t be too surprising given that opinion polls over the last decade have repeatedly shown that Americans overwhelmingly oppose racial preferences.

Today’s decision is a classic example of legal elites trying to impose their values – in this case, a belief in achieving racial diversity at any cost – on the “less enlightened” public after those values are rejected at the ballot box. This use of the courts to do an end-run around the democratic process is a hallmark of liberal judicial activism.

It is no wonder that the Sixth Circuit decided to release this decision on the Friday before a long holiday weekend.

The only good news is that the state of Michigan will surely appeal today’s decision to the U.S. Supreme Court and/or the full Sixth Circuit. If the Supreme Court reviews this decision, it will almost surely reverse it. In fact, I expect that some if not all of the Court’s liberal Justices would vote to reverse.

Leahy Owes Apology for Jewish Remarks

2011-06-30T12:17:00.004-04:00

Today, the Committee for Justice sent a letter to Sen. Patrick Leahy, Chairman of the Judiciary Committee, demanding a clarification and apology for remarks he made about Jewish organizations last week, while discussing the nomination of Michael Simon to be a federal judge. Simon was later confirmed by the Senate.

The letter focuses on Sen. Leahy’s suggestion that Simon’s critics are anti-Semitic and also discusses Leahy’s reference to the ACLU as one of "several Jewish organizations." The letter concludes that Leahy’s remarks “raise questions and demand a clarification and apology.”

Full text of the letter:

June 30, 2011

The Honorable Patrick J. Leahy
437 Russell Senate Building
United States Senate
Washington, DC 20510

Re: Remarks about Jewish organizations

Dear Sen. Leahy,

While discussing the nomination of Michael Simon to the United States District Court on June 21, you made remarks about “Jewish organizations” that demand a clarification and apology. In questioning the motives of Republican Senators who opposed Simon’s confirmation, you said on the Senate floor:

"What was it Mr. Simon did wrong? He filed amicus briefs on behalf of several Jewish organizations. This is now going to be something that says you cannot be a federal judge if you filed amicus briefs on behalf of several Jewish organizations, including the first amendment on behalf of the ACLU. … That’s what they're saying. File briefs on behalf of these Jewish organizations, file briefs on behalf of religious minorities, and somehow that makes him unfit to be a federal judge?"

The truth is that none of Simon’s critics in the Senate said or suggested anything like “you cannot be a federal judge if you filed amicus briefs on behalf of several Jewish organizations.” In fact, with the exception of your remarks, no senator mentioned such briefs in any context and Mr. Simon did not disclose any such briefs to the Senate.

It appears that you were grasping at straws to suggest that Mr. Simon’s critics are anti-Semitic. As the head of an organization that has been critical of judicial nominees’ ties to the ACLU and other liberal activist groups, I find the suggestion that such critics are motivated by anti-Semitism to be offensive.

Moreover, I am concerned that your remarks, taken on their face, imply that the ACLU is one of the "several Jewish organizations.” Perhaps that is not what you meant, but I am sure you understand why Jewish Americans like me are concerned by even inadvertent suggestions that Jews control certain institutions.

In sum, your remarks about Mr. Simon raise questions and demand a clarification and apology.

Sincerely,

Curt Levey
Executive Director
Committee for Justice

TIME: We can't let the Constitution stand in the way of all the totally awesome things us liberals want to impose on the country!

2011-06-24T13:18:00.003-04:00

TIME Magazine:

"If the Constitution was intended to limit the federal government, it sure doesn't say so. Article I, Section 8, the longest section of the longest article of the Constitution, is a drumroll of congressional power. And it ends with the 'necessary and proper' clause, which delegates to Congress the power 'to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.' Limited government indeed.
...
We can pat ourselves on the back about the past 223 years, but we cannot let the Constitution become an obstacle to the U.S.'s moving into the future with a sensible health care system, a globalized economy, an evolving sense of civil and political rights."

Anthony Weiner's Attacks on Thomas

2011-06-24T12:08:00.008-04:00

“Ganging Up on Justices Thomas, Scalia, and Alito,” an article by CFJ’s Curt Levey in the June issue of the American Spectator, is now available online here. The article explores the motivations behind this year’s “aggressive—and, at times, personal—attack on the … impartiality and ethics of Justices Clarence Thomas, Antonin Scalia, and … Samuel Alito.” (quoting Politico)

Levey concludes that the allegations are an attempt to intimidate the conservative Justices, delegitimize “conservative” decisions, and combat the arguments for Justice Kagan’s recusal in the ObamaCare cases. The attacks are further motivated by both heightened paranoia about the “vast right-wing conspiracy” and rage at the Citizens United campaign finance decision, the 2010 election results, and the loss of a liberal Supreme Court majority. The article notes that “even liberal legal experts have brushed off the complaints as hollow.” (quoting Politico)

The online publication of the article comes on the heels of the New York Times’ renewal of its attacks on the conservative Justices’ ethics, this time in a June 18 story questioning Clarence Thomas’s ties to real estate developer Harlan Crow. As has been typical of all the allegations, the story is heavy on insinuation but does nothing to change the conclusion that the complaints are hollow.

Another development since Levey’s Spectator article first appeared is the Anthony Weiner scandal. More than anyone else, Weiner has been the face of these ethics attacks, and his fall further undermines their legitimacy. As Levey’s article noted,

“A group of 74 House Democrats led by the always theatrical Anthony Weiner (D-NY) … [wrote] an accusatory letter asking [Justice Thomas] to ‘recuse yourself from any deliberations on the constitutionality of [Obamacare].’ … Rep. Weiner was even more brazen in explaining the letter he and colleagues wrote to Thomas: ‘If Justice Thomas does not recuse himself and the Court rules [against] the law, I will be making the point that this is not a credible decision.’ In other words, the plan is to try intimidation, and if that fails to produce a Supreme Court decision upholding Obamacare, the backup plan is to delegitimize the Court’s ruling in the eyes of the public.”

Before Weiner admitted his guilt at a June 6 news conference, several of his defenders alleged that

“Congressman Anthony Weiner was stalked, set up, smeared … this conservative media mafia has done a hit on a U.S. Congressman, and it’s one carefully timed to protect corrupt Supreme Court Justice Clarence Thomas from scrutiny” – Daily Kos blogger Daily Wind

Such is the nature of the recent ethics attacks on the conservative Justices – lots of fury and little evidence. It seems that the attacks are as much theater as Congressman’s Weiner’s proclamations of his innocence.

I Don't Think 'Moderate' Means What NYT Thinks it Means

2011-06-22T15:44:00.006-04:00

From the New York Times editorial on the recent Supreme Court decision in the Wal-Mart class action suit.

"Justice Ruth Bader Ginsburg, writing for the four moderates on the court, dissented from Justice Scalia’s broader analysis and sought a much narrower holding."

A Case Only a San Francisco Jury Could Love

2011-06-20T17:17:00.002-04:00

When the Supreme Court decided today that 1.5 million women who allegedly suffered gender discrimination as Wal-Mart employees did not have enough in common to sustain a class action, the Justices did not reach the merits of the discrimination claims. Back in March, when the case was argued, attorney Hans Bader examined the merits of the claims, concluding that they are as meritless as the class is massive. Bader added that

"[T]he case is being brought as a class-action not because it needs to be brought as a class action to give workers a fair shot, but rather as an excuse to let a liberal San Francisco jury hold Wal-Mart liable for discrimination when most courts in America would dismiss the lawsuit as baseless."

Wal-Mart Ruling: Blow to Judicial Activism

2011-06-20T12:46:00.003-04:00

Statement of CFJ Executive Director Curt Levey on today’s Supreme Court decision in Wal-Mart Stores v. Dukes:

We applaud the Supreme Court’s ruling decertifying a class action lawsuit in which three named plaintiffs tried to represent a class of 1.5 million women who allegedly suffered gender discrimination while working for Wal-Mart. The decision is an important victory against the abuses of trial lawyers, a milestone in the fight against judicial activism, and good news for the economy.

While the debate over judicial activism tends to focus on dramatic expansions of the law—Roe v. Wade and decisions discovering a constitutional right to gay marriage, for example—judicial activism often occurs in small steps. The courts’ expansion of class actions from their intended use as a tool for judicial efficiency into a wide-open get-rich-quick scheme for trial attorneys is a classic example. That dangerous expansion suffered a big setback today.

Though the Court ruled that the 1.5 million women “have little in common but their sex and this lawsuit” and thus can’t pool all their claims into a single class action, the women remain free to bring both smaller class actions and individual suits against Wal-Mart. Thus, today’s decision promotes individual justice while discouraging the enormous class actions that can be used to intimidate businesses into settling meritless claims and often result in tens of millions of dollars for trial lawyers but just a few dollars, or a coupon, for the individual plaintiffs.

Whenever a Supreme Court decision is perceived to be a plus for American business, liberal critics of the Court stomp their feet and scream about the Court’s alleged pro-business bias, regardless of the legal basis for the decision. When you see that predictable reaction again today—despite a unanimous 9-0 decision in part—keep this in mind: At a time when economic growth is hampered by the perception of an anti-business bias in the executive and legislative branches—see, for example, ObamaCare’s mandates, the maze of new financial regulations, and the NLRB’s attack on Boeing—it is good news for the economy that American businesses can still get a fair shake in the courts.

Obama SG: Want to Avoid Obamacare's Mandate, Earn Less Money

2011-06-02T13:30:00.004-04:00

Neal Kaytal, my former Criminal Law professor and current acting Obama Solicitor General, made an argument yesterday that I bet we will see walked back over the next few days. From The Washington Examiner:

During the Sixth Circuit arguments, Judge Jeffrey Sutton, who was nominated by President George W. Bush, asked Kaytal if he could name one Supreme Court case which considered the same question as the one posed by the mandate, in which Congress used the Commerce Clause of the U.S. Constitution as a tool to compel action.

Kaytal conceded that the Supreme Court had “never been confronted directly” with the question, but cited the Heart of Atlanta Motel case as a relevant example. In that landmark 1964 civil rights case, the Court ruled that Congress could use its Commerce Clause power to bar discrimination by private businesses such as hotels and restaurants.

“They’re in the business,” Sutton pushed back. “They’re told if you’re going to be in the business, this is what you have to do. In response to that law, they could have said, ‘We now exit the business.’ Individuals don’t have that option.”

Kaytal responded by noting that the there's a provision in the health care law that allows people to avoid the mandate.

“If we’re going to play that game, I think that game can be played here as well, because after all, the minimum coverage provision only kicks in after people have earned a minimum amount of income,” Kaytal said. “So it’s a penalty on earning a certain amount of income and self insuring. It’s not just on self insuring on its own. So I guess one could say, just as the restaurant owner could depart the market in Heart of Atlanta Hotel, someone doesn’t need to earn that much income. I think both are kind of fanciful and I think get at…”

Sutton interjected, “That wasn’t in a single speech given in Congress about this...the idea that the solution if you don’t like it is make a little less money.”

Judge Says Citizens United Extends to Corporate Donations

2011-05-27T12:25:00.004-04:00

Yahoo:

A judge has ruled that the campaign-finance law banning corporations from making contributions to federal candidates is unconstitutional, citing the Supreme Court's landmark Citizens United decision last year in his analysis.

In a ruling issued late Thursday, U.S. District Judge James Cacheris tossed out part of an indictment against two men accused of illegally reimbursing donors to Hillary Clinton's Senate and presidential campaigns.

Cacheris says that under the Citizens United decision, corporations enjoy the same rights as individuals to contribute to campaigns.

Further Debunking the idea of a "Pro-Business Roberts' Court"

2011-05-26T12:51:00.003-04:00

Over the last few years there has been a lot of back and forth among Supreme Court watchers over whether the Robert's Court is "Pro-Business." For one example see here. Today the Court released its opinion in Chamber of Commerce v. Whiting. I won't get into the merits fo the decision. I just want to point out that the only votes for the Chamber came from the liberal block of the Court. Kagan recused herself, but the other three liberals, Breyer, Sotomayor, and Ginsburg, agreed with the Chamber and dissented in the case. This case underlies the weaknesses in arguing over the whole "Pro-Business" nonsense anyway. Hopefully this case will put those arguments to bed for good.

Goodwin Liu Withdraws

2011-05-25T21:23:00.000-04:00

CFJ Executive Director Curt Levey on the withdrawal of Ninth Circuit nominee Goodwin Liu:

“We are pleased but not at all surprised that the nomination of Goodwin Liu is being withdrawn just days after it was rejected in a Senate cloture vote. There was speculation that Majority Leader Harry Reid would force another cloture vote on Liu at some point, but there was nothing for Senate Democrats or the White House to gain by pressing the issue. There is no larger point about GOP obstruction to make—Liu is the only Obama judicial nominee to be successfully filibustered—and no larger principle to fight for—Liu’s radical record sets him apart from even the most liberal of Obama’s other nominees. In our view, Liu’s nomination was doomed from the start, as Rahm Emanuel likely recognized in opposing it.”

Behind the Attacks on Scalia, Thomas & Alito

2011-05-25T20:11:00.006-04:00

In an article in the June issue of the American Spectator, CFJ’s Curt Levey explores the motivations behind this year’s “aggressive—and, at times, personal—attack on the … impartiality and ethics of Justices Clarence Thomas, Antonin Scalia, and … Samuel Alito.” (quoting Politico) The attacks have focused on contacts with the Koch brothers and others that allegedly compromise the three justices’ ability to impartially decide cases, particularly the Citizens United campaign finance decision and the lawsuits challenging Obamacare. Justice Thomas’s wife, Ginni, has also been a subject of the ethics assault.

In his article, Levey points out that “Until the recent assault on the ethics of conservative Supreme Court justices, the left had largely reserved the politics of personal destruction for judicial nominees, preferring less personal attacks on sitting judges.” With so little substance behind the ethics charges—“even liberal legal experts have brushed off the complaints as hollow” says Politico—the question of what is motivating this escalation arises.

Levey notes that

“The stated goal of the mudslingers is recusal ... But recusal can’t be the endgame of this ethics campaign. Liberals know they have little hope of convincing Thomas to recuse himself in the Obamacare cases and even less hope of effecting retroactive recusal [of conservative justices] in Citizens United.”

Levey identifies the motivations that are really behind the attacks, including:

1) Intimidation and delegitimization

Levey concludes that “liberals hope their attacks on the conservative justices will ensure that the justices are intimidated and the public is suspicious when the most controversial aspects of Obama’s agenda … reach the Supreme Court … [If intimidation] fails to produce a Supreme Court decision upholding Obamacare, the backup plan is to delegitimize the Court’s ruling in the eyes of the public.”

2) Fighting a potential Kagan recusal

Levey notes that “the Supreme Court’s vote on the constitutionality of Obamacare is likely to be very close, so liberals need Kagan’s vote and will fight hard against any pressure for her recusal” based on her service in the Obama Justice Department as it began formulating its legal defense of ObamaCare. He asks “Are the attacks on the conservative justices the beginning of that fight?”

3) Heightened paranoia about the “vast right-wing conspiracy”

“That the accused justices are beholden to conservative billionaires [and right-wing groups] can be seen in their attendance at Koch-associated events and their ties to other parts of the billionaire-funded web,” says Levey, describing the view of the left.

4) Apoplectic rage at Citizens United

The left sees it as “an illegitimate decision, arrived at by at least two justices who should never have participated in it.” (quoting Clinton Labor Secretary Robert Reich) “The belief that Citizens United particularly benefits the conservative forces Justices Thomas, Scalia, and Alito are allegedly conspiring with makes the decision even harder for the left to swallow,” Levey explains.

5) Politicization of the courts

Levey explains that “it should come as no surprise that the ethics allegations … come on the heels of the left’s decades-long endeavor to politicize the courts. … Deprived of a sympathetic Supreme Court lineup, frustrated by their inability to hijack the confirmation process, and convinced that the Roberts Court was intent on paring down the gains of liberal judicial activism, the left was desperate to find a new tool for manipulating the High Court. … Anger over Citizens United and the 2010 election results added the final sparks to liberal frustration, and the assault against the ethics of Scalia, Thomas, and Alito was on.”

The full text of Levey’s article, “Ganging Up on Justices Thomas, Scalia, and Alito,” is not yet available online.

New Documents Shed Light on Kagan's Role in Obamacare

2011-05-18T16:27:00.002-04:00

From The Daily Caller:

Newly released documents reveal Supreme Court Justice Elena Kagan was more involved with President Obama’s health-care law than she disclosed previously. The documents likely will lead to a revival of questions about whether the Kagan should recuse herself from future cases.

Specifically, the documents show that Kagan was involved with crafting the legal defense of the Affordable Care Act in her role as solicitor general, before her appointment to the bench. The Media Research Center and Judicial Watch obtained the documents through a Freedom of Information Act (FOIA) lawsuit that was filed in February 2011.

In an email dated Jan. 8, 2010, then-Deputy Solicitor General Neal Katyal sent an email to Senior Counsel Brian Hauck and Deputy Attorney General Thomas Perrelli that indicates Kagan played a key role in coming up with a legal defense.

Biggest Nomination Fight of 2011

2011-05-18T07:16:00.006-04:00

“‘Unless there’s a surprise Supreme Court vacancy this year, this is the big fight of the year,’ said Curt Levey, executive director of the conservative Committee for Justice. Levey and many other conservatives argue that Liu is an extraordinary circumstance.” – David Ingram, Legal Times (5/17/11)

Statement of CFJ Executive Director Curt Levey:

The Legal Times excerpt summarizes the showdown that will occur this week—likely Thursday—when Senate Democrats force a cloture vote on Ninth Circuit nominee Goodwin Liu, President Obama’s most radical judicial nominee and the man whom Obama would dearly like to make the first Asian-American Supreme Court justice. Liu’s left-wing agenda and outrageously activist view of the law makes this showdown a classic test of the bipartisan “extraordinary circumstances” standard for when judicial nominees can be filibustered. The standard originated in the 2005 Gang of 14 agreement.

Liu is a 40 year old Berkeley law professor whose vocal and unabashed championing of judicial activism has made him a star on the legal left. Liu "envisions the judiciary ... as a culturally situated interpreter of social meaning" and believes judges should create constitutional rights to “distributive justice,” including welfare rights to “education or housing or medical care.”

Liu has expressed left-wing views on virtually every hot-button issue likely to come before him on the bench, including the view that Americans are obligated to pay reparations for slavery, an obligation he would likely read into the Constitution. Liu is too far to the left for even Rahm Emanuel, who advised the President against making this nomination.

If Senate Democrats succeed in getting the 60 votes necessary to force cloture, Liu will almost surely be confirmed to the Ninth Circuit, putting this darling of the Left just one step away from the Supreme Court. If, instead, cloture fails, Liu’s nomination will effectively be dead.

If all 53 Democratic senators follow the party line and vote for cloture, they will need to add seven Republican votes to prevail. The key to this vote are the 11 GOP senators who voted for cloture on Rhode Island district court nominee John McConnell earlier this month. They include Sens. Alexander, Brown, Chambliss, Collins, Graham, Isakson, Kirk, McCain, Murkowski, Snowe, and Thune.

Several of these GOP senators justified their vote for cloture by arguing that the President’s district court nominees deserve more deference or that McConnell did not quite meet the “extraordinary circumstances” threshold. The former argument is not available for appeals court nominee Liu. The latter argument, if applied to Liu, would logically require a GOP senator to answer the question “If Obama’s most radical nominee is not extreme enough to meet the extraordinary circumstances threshold, when would it ever be met?” If the answer is “never,” because the senator believes that judicial filibusters are never justified, that senator must then explain why Republicans are obliged to unilaterally disarm no matter how atrocious the nominee is.

Fortunately, Liu’s defeat is likely. But the vote will be very close. We urge those concerned about this radical nominee to contact the key GOP senators immediately.

Heller? What Heller?

2011-05-12T15:11:00.000-04:00

From today's Washington Times editorial:

The landmark District of Columbia v. Heller case should have settled the matters like this three years ago. In its ruling, the Supreme Court smacked down D.C. gun-control measures and reaffirmed the constitutional protection for the individual’s right to own a handgun. Since then, the District has cooked up a labyrinth of pointless restrictions and rules crafted to ensure this fundamental right would rarely be exercised. The city may have gone a step too far, as it is now impossible for any law-abiding citizen to obtain a gun in the nation’s capital.

That’s because the District manipulated its zoning laws to ensure gun brokers would not be welcome. With no gun stores, the only way to obtain a pistol lawfully is to make a purchase in another state and have the gun shipped to a Federal Firearms License (FFL) holder in the District. A federal law prohibits acquisition of a firearm across state lines in any other way.

The lone FFL holder doing business in Washington recently lost his lease and can no longer perform such transfers. That left D.C. resident Michelle Lane in the lurch after she ordered Kahr K9 and Ruger LCR handguns from a dealer in Lorton last month. The Second Amendment Foundation filed the federal court challenge on her behalf, arguing that she is being denied equal protection of the laws because of where she lives.

The Washington Post previously wrote about how difficult it is to get a gun in D.C. In order to get a gun it took "$833.69, a total of 15 hours 50 minutes, four trips to the Metropolitan Police Department, two background checks, a set of fingerprints, a five-hour class and a 20-question multiple-choice exam."

Judges War; Dems Play Race Card

2011-05-10T18:11:00.004-04:00

Statement of CFJ Executive Director Curt Levey:

When Majority Leader Harry Reid announced last week that he would push for votes on President Obama’s most controversial judicial and Justice Department nominees, we warned that it was essentially a declaration of war on the judges issue. Speaking on the Senate floor this afternoon, Sen. Grassley, the Judiciary Committee’s ranking member, made it clear that Reid’s declaration of war would have negative repercussions. They include a likely end to the bipartisan cooperation that has seen twenty judges confirmed during the last 46 days the Senate has been in session. Grassley lamented that

“[R]ather than continuing to move forward with consensus nominees, the other side has chosen [a fight over] the President’s most controversial nominees. I must say, this makes it extremely difficult to continue to work in a good faith effort to move forward on non-controversial nominees.”

Highlighting Democrats “insist[ence] on taking detours and throwing up roadblocks to this cooperative effort,” Grassley noted that

“[L]ast week, after moving forward with two [non-controversial] district court judges, the Majority Leader filed cloture on one of President Obama’s most controversial nominees, Mr. Jack McConnell. And now this week, the Majority Leader has turned to two more of the President’s controversial nominees.”

Grassley is referring to Deputy Attorney General nominee James Cole, who was defeated on a cloture vote yesterday, and Edward Chen, who was confirmed to the U.S. District Court late this afternoon. Grassley pointed out that “despite the unanimous Republican opposition” to Chen, GOP senators agreed not to force a cloture vote or extended debate on Chen. However, Sen. Grassley’s remarks make it clear that the Democrats cannot expect that sort of cooperation going forward.

Democratic senators took advantage of this afternoon’s floor debate on Chen to shamelessly play the race card. Judiciary Chairman Patrick Leahy denounced GOP Sen. Jeff Sessions’ past remark that Chen has “the ACLU chromosome,” charging that it harkens back to an earlier disgraceful—and presumably racist—era. Leahy is well aware that Sessions’ remark referred to Chen’s 16 years of employment as an ACLU lawyer, not to his Asian ancestry.

Sen. Diane Feinstein was more subtle in trying to link opposition to Chen with anti-Asian racism. She displayed large photos of this nation’s World War II-era Japanese internment camps throughout her floor remarks, far more than was necessary to make the point that Chen once worked on an internment camp-related case.

Reid Files Cloture, Signaling War

2011-05-03T07:13:00.002-04:00

Statement of CFJ Executive Director Curt Levey:

Even Democrats concede that the pace of judicial confirmations has quickened this year with the help of Republican leaders in the Senate. But apparently that’s not good enough for Majority Leader Harry Reid. Reid signaled Monday that he is ready to go to war over President Obama’s most controversial judicial nominees, as well as the equally contentious Deputy Attorney General nominee James Cole. After announcing Monday that he will attempt to force votes on the controversial nominees, Reid filed cloture on one of them—Rhode Island district court nominee John McConnell—compelling Republican senators to attempt a filibuster when McConnell comes to a vote later this week.

McConnell is fiercely opposed by GOP senators, the business community, and a wide array of conservative groups because of his reputation as an unscrupulous plaintiff’s attorney willing to bring questionable lawsuits against American employers and make record-setting political contributions that suggest “pay to play.” McConnell even managed to engender stiff opposition from the United States Chamber of Commerce, which rarely involves itself with judicial nominations, and doubts at the American Bar Association, where he became one of only a handful of Obama nominees to get less than a unanimously qualified rating. Following his nomination, McConnell cemented his reputation by providing misleading answers to questions posed by members of the Senate Judiciary Committee

Moderate Republicans and perhaps a handful of red-state Democrats will determine whether John McConnell gets the 60 votes to survive a filibuster and, if so, the 51 votes to be confirmed. We urge those concerned about McConnell’s ability to render impartial rulings on the bench to call these key senators immediately.

The filibuster and confirmation votes will be close because of two factors: 1) the reluctance of several GOP senators to filibuster a judicial nominee under any circumstances, and 2) the reluctance of even moderate Democratic senators to deviate from a party-line vote on judicial nominees. The outcome of the votes will be closely watched both for their own sake and as an indicator of whether Reid will meet success if he follows through fully on his threat to go to war over Obama’s most controversial nominees, including radioactive Ninth Circuit nominee Goodwin Liu.

ObamaCare: Reading Tea Leaves

2011-04-26T11:43:00.004-04:00

The Committee for Justice has received a number of questions about what can be read from the Supreme Court’s denial yesterday of Virginia’s request for expedited review of its lawsuit challenging ObamaCare. Specifically, people have asked what the denial tells us about how the Court will ultimately rule on the statute’s constitutionality. The answer is little or nothing, as CFJ Executive Director Curt Levey explained at RedState.com yesterday:

It is folly to draw any conclusions because it’s extremely unusual for the Supreme Court to grant certiorari – that is, review – of a case while it’s still working its way through the lower federal courts. The last time the Court did that in an important case was 2002, when it agreed to hear Gratz v. Bollinger, a challenge to race-based admissions at the University of Michigan, which had been heard but not yet decided by the U.S. Court of Appeals for the Sixth Circuit. It’s so rare that it took a new, not-yet-jaded lawyer (me) to even suggest making the request for a Writ of Certiorari Before Judgment in Gratz. And the writ would likely have been denied if the companion case, Grutter v. Bollinger, had not already been decided by the Sixth Circuit, making it ready for Supreme Court review. In the instant situation, none of the companion cases to the Virginia suit have been decided by circuit courts.

Nobody doubts that the Supreme Court will eventually hear one or more of the lawsuits challenging the constitutionality of ObamaCare. We don’t know whether Justice Kennedy will provide the fifth vote necessary to strike down all or part of the law, but his vote isn’t necessary to grant certiorari. Only four votes are required for review and the Justices know those votes are virtually guaranteed when the time is right. So it’s only the matter of timing that Justice Kennedy and his colleagues had in mind when they denied Virginia’s request.

If today’s denial tells us anything about a Justice’s state of mind concerning the merits of the case – which I doubt – it’s the mind of Chief Justice John Roberts, who is more likely than Kennedy to strike down ObamaCare but less likely than Justices Thomas, Scalia and Alito. With only four Justices needed to grant certiorari, that makes Roberts the likely swing vote on any petitions to review the ObamaCare cases that are decided on a close vote. That said, the Justices’ votes on such petitions are generally not disclosed, so it will be difficult to prove my prediction right or wrong.

April 18 Debate at Columbia Law

2011-04-15T14:09:00.000-04:00

This Monday at noon, CFJ Executive Director Curt Levey and Columbia Law School Professor Ted Shaw will discuss affirmative action in university admissions and law firm employment. Shaw is the former president of the NAACP’s Legal Defense and Educational Fund. The debate will be held at Columbia Law School, 435 West 116th Street in Manhattan, and is sponsored by the law school’s Federalist Society chapter.

Feds Twist Civil Rights Law

2011-03-22T21:29:00.000-04:00

“There’s no federal law against bullying or homophobia. So the Department of Education recently decided to invent one.” Hans Bader of the Competitive Enterprise Institute explains.

Defense of Marriage, ObamaCare and Kagan

2011-02-23T16:58:00.001-05:00

Statement of CFJ Executive Director Curt Levey on today’s announcement that the Obama Administration will not defend the Defense of Marriage Act:

President Obama’s decision to abandon the Defense of Marriage Act (DOMA) is both outrageous – as a matter of Justice Department policy and constitutional law – and a miscalculation that will decreases the chances of ObamaCare being implemented, while potentially increasing calls for Supreme Court Justice Kagan to recuse herself from certain gay rights cases.

The President’s refusal to defend DOMA, a federal statute enacted by overwhelming margins in the Senate (85 - 14) and House (342 - 67) and signed into law by President Clinton, flies in the face of Justice Department policy and principles of democratic government. It has long been the Department’s policy to defend any challenged federal statute unless no plausible argument can be made in its defense. By ignoring that policy, President Obama is engaging in a disturbing power grab that, if taken to its logical conclusion, would allow him to undermine any duly enacted federal law that he doesn’t personally agree with.

But that’s not the worst of this power grab. In announcing the President’s decision, Attorney General Holder informed the nation that “the president has concluded that … sexual orientation should be subject to a more heightened standard of [constitutional] scrutiny.” In layman’s terms, that means that President Obama has decided that the Fourteenth Amendment’s Equal Protection Clause prohibits distinctions based on sexual orientation in the same way that it prohibits racial discrimination.

Of course, the authors of the Fourteenth Amendment would be quite surprised to learn that they had made same-sex marriage a constitutional imperative. However, even putting originalism and strict construction aside, it was heretofore accepted that only the judicial branch – particularly the Supreme Court – has the authority to determine the appropriate level of Fourteenth Amendment scrutiny and whether a particular piece of legislation meets that level of scrutiny.

Apparently, President Obama has now taken that authority upon himself. And this from an Administration that was outraged that Congressmen were even discussing the proper interpretation of the Fourteenth Amendment provision dealing with birthright citizenship.

This is not the first time that President Obama has shown he is willing to do an end run around the other branches of government in pursuit of his political agenda. His use of White House czars to circumvent the Senate confirmation process and of the EPA to circumvent legislative resistance to cap and trade should have forewarned us that he would attempt today’s end run around the judicial system.

Even if today’s end run succeeds, President Obama may come to regret it should he fail to win reelection. In that case, it will be up to a Republican president to defend ObamaCare against current and future constitutional challenges. Obama has just handed his successor a perfect excuse to effectively repeal or cripple ObamaCare by refusing to defend it in court.

Even in the short term, the President has strengthened the hand of ObamaCare opponents, particularly the many states that question its constitutionality and plan to resist its implementation. After abandoning DOMA, Obama has no moral authority to argue that, because ObamaCare is the law of the land, all government officials must enforce it unless and until the Supreme Court decides it’s unconstitutional.

Finally, even the President’s critics will concede that his conclusion about the proper level of constitutional scrutiny for sexual orientation – whether right or wrong – must have been based on legal research and analysis rather than just a sudden political whim. If so, Obama and Holder surely consulted the nation’s Solicitor General – the government’s top constitutional attorney – when conducting this important legal analysis. As a result, the Administration will be called upon to disclose whether Elena Kagan was still Solicitor General when this consultation began.

If the answer is yes and Kagan was involved in determining the federal government’s official position on the proper scrutiny for sexual orientation, it opens up an ethical can of worms for her concerning Supreme Court cases in which that standard is at issue. It’s a can of worms that Obama may come to regret.

Commerce Clause’s Outer Limits

2011-01-31T20:07:00.001-05:00

Today’s federal district court ruling that the ObamaCare individual insurance mandate exceeds Congress’s Commerce Clause powers makes this a perfect time to watch Reason Magazine’s excellent video exploring the outer limits of the Clause. The video includes a debate of sorts between constitutionalist law professor John Eastman and living Constitution proponent Dean Erwin Chemerinsky. Chemerinsky, who argues that Congress could require Americans to buy cars under the Commerce Clause, must be very unhappy with today’s decision.

Beware of Narrow ObamaCare Victory

2011-01-31T17:12:00.001-05:00

Statement of CFJ Executive Director Curt Levey on today’s ObamaCare decision:

ObamaCare’s individual insurance mandate is unconstitutional. So said a federal court in Florida today in the legal challenge to ObamaCare brought by 26 states. The court’s ruling should come as no surprise after a federal court in Virginia reached the same conclusion last month in the other leading ObamaCare case. The biggest news today is that the Florida court struck down the entire ObamaCare statute after finding that the unconstitutional individual mandate could not be severed – that is, separated – from the rest of the statute’s provisions.

Today’s decision signals, not only that the individual mandate is unlikely to survive its now-inevitable review by the Supreme Court, but also that if and when it meets its demise in the High Court, it is likely to take the entire ObamaCare statute with it. This new reality has very important policy implications for both President Obama and Congressional Republicans.

There is only one thing President Obama can do to ensure the survival of federal health care reform and that is to prevent the legal challenges to the individual mandate from reaching the Supreme Court. He can accomplish that only by negotiating with Republicans to repeal or substantially modify the ObamaCare statute, replacing it with a bipartisan health care reform package that does not include the individual insurance mandate. The result would be to moot and thus derail the legal challenges now hurtling towards the High Court.

Sure, Obama could take his chances on pulling out a win in the Supreme Court. But if things don’t go his way there, he will be left with little leverage to shape – or even pressure Republicans into passing – an alternative health care package, assuming he’s still in office.

The flip side of Obama’s dilemma is Republicans’ temptation to attempt a repeal of just the individual mandate, given that provision’s unpopularity and recognition that a full repeal of ObamaCare is virtually impossible at this time. Congressional Republicans must be cautious here because a successful repeal of the individual mandate would moot and thus doom legal challenges to the entire statute, arguably playing into the President’s hands.

If the individual mandate were the primary reason for conservative opposition to ObamaCare, we would be happy to hand the President a partial victory in which the lawsuits were derailed and ObamaCare minus the mandate were saved. But, as Ken Blackwell and Ken Klukowski have pointed out, “the ultimate goal in challenging the constitutionality of President Obama's health care law is not the mandate.” It’s the whole ObamaCare enchilada.

That’s because the individual mandate is just one of many reasons to oppose ObamaCare. Among the threats posed by the rest of the statute are skyrocketing premiums, increased unemployment due to insurance mandates on employers, draconian cuts to Medicare, a myriad of racial preferences, and the growth of a new federal bureaucracy with life and death power. A partial victory for Obama that leaves all those threats in place is a big loss for the American people.

No Better Compliment for Sen. Lee

2011-01-30T14:23:00.001-05:00

John Podesta’s liberal Center for American Progress on Utah freshman Mike Lee joining the Senate Judiciary Committee:

“There’s three things Sen. Mike Lee (R-UT) likes in a sentence: a noun, a verb, and ‘unconstitutional.’ Indeed, Lee has recently claimed that [various federal welfare and nanny state laws] violate the Constitution. Yet Senate Republicans have inexplicably chosen to put Lee on the very Senate committee that has jurisdiction over constitutional questions and the judiciary … [T]he Senate GOP was so eager to put this radical tenther on the Judiciary Committee that it waived a rule prohibiting both of a state’s senators from serving on Judiciary.” (emphasis added)

Imagine that, a senator who considers it his duty to evaluate the constitutionality of federal laws and to uphold the Tenth Amendment. How radical! And the Republicans put him on the Judiciary Committee to boot. That’s really reckless!

Sen. Lee, the SG Nominee & Goodwin Liu

2011-01-27T13:49:00.004-05:00

Statement of CFJ Executive Director Curt Levey on the Judiciary Committee, judges and the Solicitor General nominee:

The Committee for Justice applauds today’s announcement that Sen. Mike Lee of Utah will become the newest member of the Senate Judiciary Committee. We also thank Sen. Orrin Hatch (R - Utah) for working to waive the rule that otherwise bars Senate committees from having two Republicans from the same state.

We can think of no better addition to the Judiciary Committee than Sen. Lee. His experience as both a constitutional lawyer and clerk for Supreme Court Justice Samuel Alito gives him the ideal background for the job. And Lee’s keen understanding of the Constitution’s role in limiting federal power grabs and runaway spending makes him the perfect fit for the times.

We particularly look forward to the frank and insightful questions Sen. Lee will ask the President’s judicial nominees when they come before the Judiciary Committee for hearings. There is a bipartisan consensus that many of the people renominated by the President earlier this month are too uncontroversial to merit a new hearing in the new Congress. However, any Committee member – especially new members Mike Lee and Democrat Chris Coons – should be given the opportunity, if requested, to question a particular nominee via a
new hearing.

Were Chairman Leahy to deny Sen. Lee or other Committee members the opportunity to question the more controversial of the repeat nominees – including Goodwin Liu, John McConnell, Louis Butler, and Edward Chen – it would be an embarrassing reversal of both Senate tradition and Leahy’s practice during the Bush Administration. We are hopeful that Leahy will act responsibly here. But if we’re wrong, we trust that Ranking Member Grassley and his Republican colleagues on the Judiciary Committee will do whatever is necessary to defend the right of Sen. Lee to question nominees he will vote on.

Ninth Circuit nominee Liu, an unabashed advocate of judicial activism, is of most immediate concern because of reports that Majority Leader Reid will quickly push to force a confirmation vote on Liu. That would require Chairman Leahy to be complicit by rushing Liu through the Committee. If reports of a rush job are correct, the result will be to blow up what Sen. Chuck Schumer (D - N.Y.) says is “a really strong and bipartisan effort to get many more judges approved.”

Also of concern are reports that President Obama failed to consult with newly elected GOP senators before renominating people from their states to the federal bench. That failure is at odds with the President’s recent attempt to portray a more bipartisan approach to governing. Sen. Ron Johnson of Wisconsin summed up the reasons for concern in a statement earlier this month:

“My understanding of the standard procedure in the judicial nomination process is that the Administration extends the courtesy of consulting the home state Senators before nominating an individual to the courts. It’s unfortunate in this case that the voters of Wisconsin who expressed their wishes on November 2nd were completely ignored.”

Finally, it’s not just judicial nominees we’re worried about. Earlier this week, the President nominated Donald Verrilli to be Solicitor General, the federal government’s top Supreme Court lawyer. While Verrilli has the requisite experience and intellect to be Solicitor General, his liberal background merits close examination by the Senate.

Verrilli clerked for two of the most activist judges in history, Supreme Court Justice William Brennan and DC Circuit Judge Skelly Wright, and he received an award from the ultra-liberal Southern Center for Human Rights. His supporters reassure us that Verrilli’s corporate legal work proves he’s not a liberal ideologue, but corporate representation is the typical career path for ambitious lawyers and thus provides no reassurance about ideology.

Most importantly, Verrilli should be carefully questioned about his leadership of Jenner & Block’s diversity committee at a time when diversity initiatives at top law firms such as Jenner have often degenerated into racial preferences and double standards (see here, here and here). If Obama is serious about being a post-racial president, his Administration must encourage the Supreme Court to enforce the constitutional limits on racial preferences. We need to know if Mr. Verrilli is up to that task.

Advice to New RNC Chair on Civility & Judges

2011-01-14T17:58:00.002-05:00

Statement of CFJ Executive Director Curt Levey:

The Committee for Justice congratulates new RNC Chairman Reince Priebus on his election today and looks forward to his tenure as we approach the critical 2012 elections. Priebus will be getting plenty of advice from all quarters, so we limit our advice to these two points. We urge Chairman Priebus 1) to resist allowing political civility in the wake of the Arizona shootings to be defined in a one-sided manner, and 2) to make judicial nominations and the fight against judicial activism high-priority issues during the next two years.

While we welcome the possibility of increased political civility in the coming months, we also see the danger that the definition of “civility” will be one-sided. If it is up to many in the mainstream media, civility will be defined as less criticism of President Obama, his nominees and ObamaCare, as well as diminished advocacy for Second Amendment rights and border security. The definition will not include any abatement in the incessantly repeated charges that Republicans, conservatives and tea party members are racist, violent, homophobic, warmongering, stupid, greedy and otherwise lacking in compassion.

We urge Chairman Priebus to do his part in setting a positive tone for the political debate, while also ensuring that Republicans continue to fight hard for what they believe in and do not allow themselves to be put on the defensive by self-serving definitions of civility.

Turning to the judges issue, the RNC has been helpful but not always energetic about the issue over the last decade. The judges issue – nominations and liberal judicial activism – was one of the keys to GOP electoral success in the election cycles of 2000, 2002 and 2004, and the RNC was a key player. As Karl Rove and independent analysts have explained:

“There's no doubt in my mind that we won races all throughout the country [on the judges issue].” – Karl Rove (2004)

“[The judges issue] was one of Bush's best issues in the campaigns of 2000 and 2004” – Larry Sabato, University of Virginia (2006)

However, in the 2006 and 2008 cycles, the RNC showed less interest in judges and the diminished role of the issue was one of the many factors that contributed to the GOP’s big electoral losses. To the credit of outgoing Chairman Michael Steele, the RNC showed renewed interest in the issue during his tenure.

With the 2012 presidential election approaching, it is critical that Chairman Priebus elevate the judges issue to the level that helped elect and re-elect George W. Bush. Voters are keenly aware that a president’s appointment of Supreme Court and lower federal court judges is one of his most important powers and that it shapes the judiciary long after he has left office. On Election Day 2008, 75% of voters nationwide said that Supreme Court appointments were a factor in their vote for president, and 53% said it was an important factor (CNN).

An even more recent example of the power of the judges issue to motivate voters comes from Iowa, where voters fired three of the state’s Supreme Court Justices in November. Judicial retention elections are almost always rubber stamps. But Iowa voters were angry that, in a defiant act of judicial activism, the Iowa Supreme Court created a constitutional right to same-sex marriage in 2009. Nationwide, Americans believe by an almost 2-to-1 margin that judicial activism “seems to have reached a crisis,” according to a survey by the liberal American Bar Association (4 ABA Journal eReport 40).

2011 Predictions for Law & Politics

2011-01-04T09:53:00.001-05:00

2011 marks the tenth year of the Committee for Justice’s commitment to defending the Constitution by advocating for the rule of law and promoting constitutionalist nominees to the federal judiciary and Department of Justice. Each year, at about this time, we quietly speculate about what legal and political developments during the next twelve months will shape CFJ’s agenda within this overall mission. This year, we decided to share our thoughts by releasing the following list of our eleven predictions for 2011. Our predictions should not be confused with what we would like to see happen this year.

Predictions for 2011:

1) Justice Ginsburg will experience health problems, reigniting speculation that President Obama will have the opportunity to name her replacement during his first term. Progressives will quietly hope that Ginsburg resigns in 2011, before election year politics makes confirmation of a decidedly liberal replacement impossible. Nonetheless, progressives will be disappointed because Obama will fill any 2011 (or 2012) Supreme Court vacancy with the relatively moderate DC Circuit Judge Merrick Garland.

2) President Obama will refrain from scolding the Roberts Court in his 2011 State of the Union speech, despite the brownie points he earned among the Democratic base for denouncing the Court’s Citizens United decision during his 2010 State of the Union. Due to last year’s scolding, attendance by Supreme Court Justices at this year’s State of the Union will be down.

3) Stinging from criticism that they did not make judicial nominations a priority in 2009-10 and aware that a Republican president may be filling judicial vacancies in 2013, President Obama and Senate Majority Leader Harry Reid will put nominations on the front burner. Obama will be faster to nominate judges and Reid will do what’s necessary to schedule confirmation votes in the absence of unanimous consent.

4) A showdown between President Obama and House Republicans over withholding funds for implementation of ObamaCare will be averted when Obama reluctantly agrees to support medical malpractice reform.

5) A new House rule that requires every bill to cite the constitutional authority for proposed legislation will help to educate both Congressmen and the public about the limited nature of Congress’s powers. But behavior is hard to change, so we’ll see only incremental progress in changing the reality that Congress never met a bill it liked but rejected as outside its authority.

6) Despite the fears of conservatives that the Obama Administration will go soft on Julian Assange, the Justice Department will indict Assange for violations of the Espionage Act, as well as for receipt of stolen government property.

7) GOP control of the House makes a thorough Congressional investigation of the Justice Department’s handling of the Black Panthers case inevitable. However, interest in the merits of that particular case will wane as evidence uncovered by the investigation shifts the focus to the broader problem – first alleged in 2010 by current and former DOJ attorneys – of Obama appointees at DOJ instructing Voting Section staff not to bring cases with white victims and black defendants.

8) By the end of 2011, the Supreme Court will agree to hear the California gay marriage case, the lawsuits against Arizona’s crackdown on illegal immigrants, and perhaps the challenges to ObamaCare, ensuring that the Court’s 2011-12 term will be one of the most memorable in history.

9) In three of the most closely watched cases argued before the Supreme Court this past fall, the Justices will a) strike down a California statute forbidding the sale of violent video games to children in a decision that unites Justice Scalia and the Court’s liberals; b) uphold an Arizona law revoking the business licenses of companies that hire undocumented workers; and c) uphold another Arizona law giving parents tax credits for tuition at private schools, including religious schools.

10) While the Constitution’s Commerce Clause and the Tenth Amendment will continue to be hot issues in various legal challenges to Obama Administration legislation, less sexy but equally important regulatory challenges will multiply as Obama attempts to bypass the GOP-controlled house by enacting his agenda through broad, aggressive regulations issued by Health & Human Services, the EPA, the FCC and the new Consumer Financial Protection Bureau, among other agencies.

11) Allegations of GOP obstruction of noncontroversial judicial nominees will fade as an issue in 2011 in light of both the easing of the judicial confirmation backlog – after a bevy of lame duck confirmations last month –and more generally, the fact that Senate Republicans never planned to indefinitely delay the confirmation of noncontroversial nominees. However, the five most controversial judicial nominees – Goodwin Liu, Robert Chatigny, John McConnell, Edward Chen and Louis Butler – will not be confirmed in 2011 (or 2012) if they are even renominated by the President.

2012 and CA Gay Marriage Case

2010-12-06T17:29:00.002-05:00

The U.S. Court of Appeals for the Ninth Circuit heard oral argument today in Perry v. Schwarzenegger, the California same-sex marriage case that will likely reach the Supreme Court. A 3-judge panel of the Ninth Circuit is reviewing U.S District Court Judge Vaughn Walker’s controversial ruling striking down Proposition 8, a 2008 ballot initiative in which California voters amended the state constitution to define marriage as “between a man and a woman.”

This summer, Walker ruled that Proposition 8 violates the U.S. Constitution because the “purported rationales [for a traditional definition of marriage] are nothing more than post-hoc justifications" by Prop 8’s proponents. Despite the fact that those rationales have justified a traditional definition of marriage for thousands of years, the panel will very likely affirm Judge Walker’s ruling – after rejecting a challenge to the appellants’ standing –given the activist records of two of the panel’s three judges. Assuming Judge Walker is affirmed, the liberal Ninth Circuit will likely decline to rehear the case en banc, i.e., before an 11-judge panel.

That would set the stage for the case to reach the U.S. Supreme Court in time for oral argument early in 2012 and a decision by June 2012. That timing will make both gay marriage and judicial activism major issues in the 2012 presidential and Senate election campaigns as Perry v. Schwarzenegger heads towards an historic climax. The importance of the President’s power to nominate and the Senate’s power to confirm Supreme Court Justices will be underscored by the unfolding drama in the High Court.

In the nearer term, the 3-judge panel’s focus on and seeming sympathy for two particular arguments today indicate that the judges are looking for a way to affirm the district court decision with a narrower rationale than Walker’s conclusion that the Fourteenth Amendment essentially compels the recognition of same-sex marriage. The arguments are 1) that Perry presents an especially compelling set of facts because Proposition 8 eliminated an existing state constitutional right to same-sex marriage, and 2) that there is no rational basis for California’s existing policy of giving homosexual couples, via civil union, all the benefits of marriage save for the name.

At a time when the number one goal of the purveyors of judicial activism is the discovery of a general right to same-sex marriage in the U.S. Constitution, the panel’s inclination to find narrower grounds might have been reassuring. But, in fact, the grounds the panel focused on today offer little solace to critics of judicial activism and gay marriage; instead, the arguments have troubling implications and border on the disingenuous.

The argument that a state cannot withhold “marriage” from gay couples, once it has granted them all the benefits of marriage, amounts to little more than a game of “got you.” If the Ninth Circuit rules on that basis, it would essentially be telling the people of California that, because they were open-minded and compromising enough to grant all the benefits of marriage to same-sex unions, they must now accept the one element they explicitly rejected – that is, the designation of same-sex unions as “marriages.”

This slap in the faces of Californians would provide a perverse incentive for other states to ensure that all the benefits of marriage are not granted to same-sex couples. That would be a shame, because unlike gay marriage, robust civil unions have broad enough popular support to potentially be a compromise all fifty states could live with.

As for the existing “right” to same-sex marriage eliminated by Proposition 8, it was both short-lived and the result of blatant judicial activism. It was quickly overruled by Californians when they approved Prop 8 just six months after the California Supreme Court purported to find a right to gay marriage in the California Constitution. As we said at the time of the Court’s May 2008 decision,

“In the lofty but vacuous language typical of judicial activism, the [California Supreme Court] discovered a right to have one’s ‘family relationship accorded dignity and respect equal to that accorded other officially recognized families.’ Whatever one thinks of this new right – which would seemingly apply to polygamous families as well – it is nowhere to be found in the California Constitution.”

Were the Ninth Circuit to use this short-lived “right” as the grounds for its decision, it would elevate and enshrine the state Supreme Court’s original act of judicial activism both by insulating it from review by California voters – who rejected it with their approval of Prop 8 – and giving it nationwide reach by using it as the basis for a decision under federal law. Such bootstrapping of federal judicial activism on top of state judicial activism would be intellectually dishonest and would encourage activist state courts to flaunt the will of the voters.

The Case for Engaged Justices

2010-12-05T12:39:00.001-05:00

George Will is on his game today.

In our democracy, the legislature's policymaking power "though unrivaled, is not unlimited." The Constitution reigns supreme: "There must remain judicially enforceable constraints on legislative actions that are irreconcilable with constitutional commands."

Thus a legislature's judgment that a measure is desirable does not relieve a court of the duty to judge whether it is constitutional. "The political branches decide if laws pass; courts decide if laws pass muster," wrote Willett. Judges must recognize that legislators' policymaking primacy "is not constitutional carte blanche to regulate all spheres of everyday life; pre-eminence does not equal omnipotence."

What Willett says of the states' police power is applicable to Congress's power under the commerce clause: "When police power becomes a convenient talisman waved to short-circuit our constitutional design, deference devolves into dereliction." And: "If legislators come to believe that police power is an ever-present constitutional trump card they can play whenever it suits them, overreaching is inexorable."

The judiciary's role as referee of constitutional disputes is, Willett says, "confined yet consequential." But, "If judicial review means anything, it is that judicial restraint does not allow everything." And there can come a "constitutional tipping point" where, by excessive deference to a legislature in the face of a constitutional limitation, "adjudication more resembles abdication." Then a state's police power (or Congress's power under the commerce clause) can "extinguish constitutional liberties with nonchalance."

Spitzer v. Cuccinelli on Obamacare Litigation

2010-11-19T10:18:00.003-05:00

I just want to add one comment regarding the tax/penalty distinction and the political limitation on federal commerce power. U.S. District Judge Roger Vinson, who allowed the challenge to proceed in Florida, said the following in ruling the mandate a penalty:

“Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an “Alice-in-Wonderland” tack and argue in court that Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad power in check.”

This goes to Cuccinelli's point about Congress and the President calling the punishment for violating the mandate a penalty, not a tax. Proponents cannot credibly argue that the only check on federal power is politics and then argue the mandate is a tax. It undercuts their whole theory, and, by doing so, they prove that, should the mandate be found constitutional, there is no limit to federal power.

Warning to Reid on Lame Duck Confirmations

2010-11-15T15:49:00.003-05:00

Conservative leaders, including CFJ Executive Director Curt Levey, delivered a letter to Senate Majority Leader Harry Reid today, urging him “in the strongest possible terms not to use the ‘lame duck’ session to force votes on the confirmation of any nominees for federal office.”

The letter emphasizes that many of the nominees that might be confirmed during the lame duck session “are still before the Senate precisely because of concerns about their radical and controversial views.” A Senate that “has already been replaced by the American people has no business confirming such controversial nominees to federal office,” the letter adds.

Commenting on the letter, Mr. Levey noted that “On November 2, the American people rejected the liberal agenda that has been pushed by the Obama Administration and its most controversial pending nominees. If Senate Democrats try to confirm these controversial nominees during the lame duck session, they will be showing contempt for American voters.”

In the letter, Levey and the other conservative leaders call attention to the 16 “most egregious” pending judicial and executive branch nominees. The list includes two appeals court nominees (Goodwin Liu and Robert Chatigny), three district court nominees (John McConnell, Edward Chen and Louis Butler), as well as nominees to the Equal Employment Opportunity Commission (Chai Feldlbum and Jacqueline Berrien) and the National Labor Relations Board (Craig Becker). Also on the list are John Podesta, nominated to the Corporation for National & Community Service; James Cole, the Deputy Attorney General nominee; and Donald Berwick, who was recess appointed to head the Centers for Medicare & Medicaid Services.

The full text of the letter is below, including the list of signers and the list of the 16 most controversial nominees.

-----------------------------
November 15, 2010

The Honorable Harry Reid
United States Senate
Washington, DC 20510

RE: No Lame Duck Confirmations

Dear Majority Leader Reid:

Now that we are past the Congressional elections, we urge you in the strongest possible terms not to use the “lame duck” session to force votes on the confirmation of any nominees for federal office.

Any “lame-duck” confirmations would be a gross abuse of Congressional authority in a last gasp attempt to perpetuate an agenda that the American people have already rejected. This would further undermine the American people’s confidence in Congress and the democratic nature of our government.

In addition, many of the nominees that could feasibly be confirmed in this way are still before the Senate precisely because of concerns about their radical and controversial views. The Senate has already had months to question and confirm these nominees. A Senate that has not been able to decide about these nominees, and has already been replaced by the American people, has no business confirming such controversial nominees to federal office. A list of the most egregious pending nominees is attached.

Sincerely,

William Wilson
President
Americans for Limited Government

Tom McClusky
Sr. Vice President
Family Research Council Action

Curt Levey
Executive Director
The Committee for Justice

David A. Keene
Chairman
American Conservative Union

Penny Nance
CEO
Concerned Women for America

Phyllis Schlafly
President
Eagle Forum

Andrea Lafferty
Executive Director
Traditional Values Coalition

Kay R. Daly
President
Coalition for a Fair Judiciary

CC: The Honorable Mitch McConnell

Most egregious nominees:

Maria del Carmen Aponte, Ambassador to the Republic of El Salvador

Craig Becker, Board Member, National Labor Relations Board

Jacqueline Berrien, Chair, Equal Employment Opportunity Commission

Donald Berwick, Administrator, Centers for Medicare and Medicaid Services, Department of Health and Human Services

Louis B. Butler, Jr., U.S. District Judge for the District of Wisconsin

Robert N. Chatigny, U.S. Court of Appeals for the Second Circuit

Edward Milton Chen, U.S. District Court Judge for the Northern District of California

James Michael Cole, Deputy Attorney General, Department of Justice

Chai Feldlbum, Commissioner, Equal Employment Opportunity Commission

Goodwin Liu, U.S. Court of Appeals for the Ninth Circuit

John J. McConnell, Jr., U.S. District Court Judge for the District of Rhode Island

Thomas R. Nides, Deputy Secretary for Management and Resources, Department of State

John D. Podesta, Board of Directors, Corporation for National and Community Service

Jo Ann Rooney, Principal Deputy Undersecretary for Personnel and Readiness, Department of Defense

Paul Tiao, Inspector General, Department of Labor

Solomon B. Watson IV, General Counsel of the Army, Department of Defense

Nov. 11 Affirmative Action Debate in NYC

2010-11-08T09:37:00.000-05:00

This Thursday at 6 pm, CFJ Executive Director Curt Levey and Columbia Law School Professor Ted Shaw will discuss affirmative action in the corporate world in a debate entitled “Diversity... Is Mandating the Answer?” Shaw is the past president of the NAACP’s Legal Defense and Educational Fund.

The debate will be hosted by AXA Equitable Life Insurance Company’s Law Department and Office of Diversity and will be held at their offices at 1290 Avenue of the Americas - 15th Floor, New York, NY. If you wish to attend, RSVP to Deidra.Barnes@axa-equitable.com.

Today’s Referendum on Elitism

2010-11-02T05:04:00.003-04:00

What do today’s nationwide Congressional elections, a judicial retention election in Iowa, and a vote on Nevada’s judicial selection method have in common? All three give voters a chance to say no to elitism.

Nevada

Nevadans are voting today on a ballot initiative, Question 1, that would replace the popular election of state judges with judicial selection by a special commission (the governor can choose only from among the commission’s recommendations). The Question 1 campaign has generated national controversy because of robocalls to Nevada voters, as well as videos, featuring former Supreme Court Justice Sandra Day O’Connor touting the initiative and warning that popular election of judges breeds corruption.

Criticism of O’Connor has focused on her possible violation of judicial ethics because she continues to sit as a judge on lower court cases. But what caught our attention about the campaign to take responsibility for judicial selection away from the citizens of Nevada and other states is its elitist flavor, epitomized by O’Connor’s statement last year that allowing voters to select judges makes the process "tawdry and embarrassing."

It may be true, as O’Connor and the Nevada legal establishment argue, that elected judges are sometimes influenced by the opinions of the citizens who vote for them and contribute to their campaigns. However, only an elitist attitude can explain why the O’Connor’s camp fears the influence of the public’s passions and contributions more than it worries about making judges unaccountable to the public and beholden to the special interests and political insiders that dominate judicial selection commissions.

Iowa

Elitism is also on the ballot today in Iowa, where voters will decide whether three of the state’s Supreme Court Justices get to keep their jobs. Judicial retention elections are usually rubber stamps, but the Iowa Justices’ jobs are in jeopardy because all three voted to strike down the state legislature’s decision to define marriage as between a man and a woman. The April 2009 ruling created a constitutional right to same-sex marriage, while specifically rejecting the relevance of Iowans’ democratic determination that a traditional definition of marriage best serves the state.

In typical elitist fashion, the Justices’ supporters have questioned the very legitimacy of citizens voting against retention because they oppose a judge’s decisions. Polls show that a sizeable majority of Iowans oppose same-sex marriage—explaining why the state’s Democrat-controlled General Assembly balked at allowing Iowans to vote on overturning the Court’s ruling—but that is only part of the picture. Iowa’s Supreme Court Justices are in electoral trouble for a larger reason: Iowa voters, like a majority of Americans nationwide, are fed up with activist judges who, by definition, substitute the values of the lawyer class and other elites for the values and judgment of voters.

How did judges so out of touch with the state’s values get on the Iowa Supreme Court? They were chosen by a 15-member judicial selection commission, consisting of seven members of the left-leaning state bar association, another seven Democrats, and a sitting judge.

Congressional elections

There is agreement across the political spectrum that 1) the 2010 Congressional elections will largely be a referendum on President Obama, and 2) Obama’s declining popularity is due, in part, to a perception that he’s aloof and out of touch. There’s not much difference between being aloof and elitist, but in any case, Obama has earned the elitist label through the comments he makes when surrounded by like-minded folks at fundraisers.

Recall the San Francisco fundraiser where Obama opined about “bitter” small-town Americans who “cling to guns or religion.” And just last month, at a Boston fundraiser, Obama explained that Americans are dubious of his agenda only because “we're hardwired not to always think clearly when we're scared.”

Similarly, Obama and the Democratic leadership in Congress blamed the deep and widespread opposition to ObamaCare on Americans being misinformed, scared, perhaps racist, and unable to comprehend the President’s health care message through the fog of a fierce debate (despite the President’s 54 speeches on the issue). Like the elites in Iowa and Nevada, Obama and his Congressional colleagues were convinced that something as important as health care reform or judicial selection can’t be left to popular opinion.

Eight months later, popular opinion hasn’t changed—the latest survey finds that 58% of likely voters favor repeal of ObamaCare with 36% against—and Democrats will pay the price for their arrogance as opponents of ObamaCare turn out to vote in large numbers. Similarly, the contempt that the Iowa Supreme Court, Sandra Day O’Connor, and the Nevada legal establishment have shown for public opinion is the reason for intense opposition to what would otherwise be an uncontroversial ballot initiative and a rubber stamp retention vote.

Oct. 25 Panel on Judicial Nominations

2010-10-24T13:09:00.000-04:00

Monday evening, CFJ Executive Director Curt Levey be on a Harvard Law School panel entitled “Demystifying the Judicial Nominations Process.” The other panelists will be fellow alumni Seth Stern of Congressional Quarterly and Jeremy Paris, Chief Counsel for Nominations & Oversight for Judiciary Chairman Patrick Leahy. If you’re in the Boston area, you can attend the panel from 7 to 9 pm in Austin North on the law school campus.

Refreshing Honesty From Rep. Jim McGovern (D-MA)

2010-10-14T19:04:00.002-04:00

Finally a lefty states what the left truly believes.

"We have a lousy Supreme Court decision that has opened the floodgates, and so we have to deal within the realm of constitutionality. And a lot of the campaign finance bills that we have passed have been declared unconstitutional by the Supreme Court. I think the Constitution is wrong. I don’t think that money is the same thing as human beings." (emphasis added)

Refreshing Honesty From New York Appellate Judge James Catterson

2010-10-13T15:41:00.001-04:00

In my view, the record amply demonstrates that the neighborhood in question is not blighted, that whatever blight exists is due to the actions of the City and/or is located far outside the project area, and that the justification of under-utilization is nothing but a canard to aid in the transfer of private property to a developer. Unfortunately for the rights of the citizens affected by the proposed condemnation, the recent rulings of the Court of Appeals in Matter of Goldstein v. New York State Urban Dev. Corp. (2009) and Matter of Kaur v. New York State Urban Dev. Corp. (2010), have made plain that there is no longer any judicial oversight of eminent domain proceedings. Thus, I am compelled to concur with the majority. (emphasis added)

John Roberts, the Magician?

2010-10-07T14:36:00.001-04:00

The opening of a new Supreme Court term this week brought the predictable slew of articles about the Roberts Court’s supposed lurch to the right. As others have noted, the hyperbole typical of these articles suggests that they are probably aimed at influencing Justice Anthony Kennedy, the Court’s swing vote. Nonetheless, we did not expect to see a piece as over the top as this week’s Slate essay—penned by prominent Court observer Dahlia Lithwick and co-author Barry Friedman—accusing the Roberts Court of magician-like sleight of hand. The essay’s thesis:

“[The Roberts] court has taken the law for a sharp turn to the ideological right, while at the same time masterfully concealing it. Virtually every empirical study confirms this rightward turn. Yet recent public opinion polls indicate Americans continue to see a bench that is, if anything, a wee bit too liberal. How to explain the justices shoving the law rightward, while everyone thinks it is dead center or too far left?”

Put aside the far-fetched and conspiratorial nature of the allegation. Put aside how to square the Court’s masterful concealment of its right-wing aims with the slew of articles and “studies” accusing the Court of lurching to the right. And put aside the essay’s confusion of direction with location (the Court moving to the right tells you no more about where it is relative to the “dead center” than a train’s northward movement tells you whether it is north or south of Washington, DC).

What remains is the contention that only an illusion can explain why Americans currently view the Supreme Court as “a wee bit too liberal.” It’s a bizarre contention given that one need only look at issue-oriented public opinion polls to find an obvious explanation. Stuart Taylor, former New York Times Supreme Court reporter and National Journal columnist, did just that and concluded that

“[On] six of the most contentious subjects that come before the justices on a recurring basis: abortion; race; religion; the death penalty; gay rights; and presidential war powers. On every one of them, the Court’s precedents are to the left of, or very close to, the center.”

Following the Court’s 2008 Boumediene decision, bestowing habeas corpus rights on Gitmo terror suspects—a position decidedly to the left of public opinion—we noted that

“While it’s certainly true that the Court has drifted right of the New York Times, the nation’s law faculty, and the typical elite cocktail party, the dirty little secret is that the Court is decidedly centrist when compared to the American people. The hysteria about the Court’s ‘right wing assault’ on abortion, desegregation, and the separation of church and state has obscured the fact that large majorities of the public oppose partial-birth abortion and racial preferences and favor some role for religion in the public sphere.”

The Roberts Court’s racial preferences and partial-birth abortion decisions are two that Lithwick and Friedman cite in building their case for trickery. But let’s put aside the fact that they concocted their master illusionist theory to explain a disparity that doesn’t exist and briefly consider some of their claims. They start with “Trick 1: Stacking the Deck:”

“The Roberts Court has proven itself adept, brilliant even, at stacking the deck that is its annual docket. It does so by picking cases with facts so extreme that only one outcome seems possible. Then it uses those same reasonable-seeming decisions to push the law in conservative directions. … Take last term's Maryland v. Shatzer: … basically the entire court—all nine justices, conservatives and liberals alike—disagree with [an accused molester’s] claim. You might say, who cares: Shatzer deserves what he gets and worse. But … the rest of us get [a decision weakening the] Miranda rule.”

The essay’s primary example of stacking the deck is both misleading and condescending. The authors forget to tell their readers that only four votes are required to put a case on the Court’s annual docket, such that the four liberal Justices could use this “trick” just as easily as the five center-right Justices. Moreover, they imply that the Court’s four liberal Justices were hoodwinked into weakening the Miranda Rule by presenting them with a case with unpleasant facts. Apparently, Lithwick and Friedman are too smart to be fooled by such tricks.

But it’s not just the liberal justices who are easily hoodwinked. So are the media. In explaining “Trick 2: Misdirection,” Lithwick and Friedman claim that

“While we are watching the term's ‘big’ cases, [the Roberts Court] works its magic on the ones we aren't paying attention to, which often matter more. In this enterprise, the court is aided and abetted by the media.”

It’s a good thing that at least one member of the media, Ms. Lithwick, is paying attention.

In the interest of space, we’ll skip Tricks 3 and 4 and go on to “Trick 5: Sawing the Lady in Half.” Perhaps Lithwick and Friedman put this trick last because it makes no sense on its face. Here’s how they see it:

“How does the chief justice work to maintain the illusion that political ideology is not present on the Supreme Court while at the same time taking sharp steps to the right? … [By using] cases where the ideological left splits internally, allowing the right to say that the issue is not ideological at all. … [For example, in] another of the decisions whittling Miranda away, Florida v. Powell, Roberts shrewdly gave the nod to liberal justice Ruth Bader Ginsburg to write the court's decision.”

Forget for the moment the authors’ apparent belief that Justice Ginsburg was hoodwinked again into weakening Miranda rights, this time by Chief Justice Roberts’ nod to her ego. Consider, instead, that the scenario they describe—where some liberal Justices join the conservatives or vice versa—is the very definition of decisions that are non-ideological because they cut across ideological lines. So what Lithwick and Friedman are actually claiming is that the Roberts Court is duping Americans into believing that its decisions are “not ideological” by issuing decisions that are, well, non-ideological. Several words could be used to describe that sort of reasoning, but we’ll leave the choice to the reader.

Ben Adler Channels Dahlia Lithwick

2010-09-28T21:13:00.002-04:00

Ben Adler on the GOP's Pledge in Newsweek.

Not so harmless, however, is the promise to require every bill to be certified as constitutional before it is voted on. We have a mechanism for assessing the constitutionality of legislation, which is the independent judiciary. An extraconstitutional attempt to limit the powers of Congress is dangerous even as a mere suggestion, and it constitutes an encroachment on the judiciary.

Ramesh Ponnuru correctly calls this line of thinking insane.

There’s nothing — nothing in the Constitution, nothing in Marbury v. Madison, nothing even in Cooper v. Aaron — that suggests that congressmen cannot consider the constitutionality of laws while voting on them. That they can do so, which one would have hoped would be a banal idea, does not even challenge judicial supremacy: The courts can still be the final arbiter of constitutionality. The Pledge provision in question is “extraconstitutional” only in the trivial sense that the Constitution neither requires nor forbids it.

Lithwick's equally dumb version of this train of thought here.

Estrada for DC Circuit; Today’s Radical Nominees

2010-09-23T13:41:00.001-04:00

CFJ Executive Director Curt Levey on Miguel Estrada and the five radical nominees on today’s Judiciary Committee agenda:

Democrats have done a lot of complaining in recent weeks about the supposedly slow pace of judicial confirmations. As today’s Senate Judiciary Committee meeting vividly illustrates, President Obama has contributed to the slow pace by selecting a number of nominees whose views and records are far outside the American mainstream.

On today’s Judiciary agenda were five of Obama’s most controversial judicial nominees: Goodwin Liu (9th Circuit), Robert Chatigny (2nd Circuit), Louis Butler (W. District of WI), Edward Chen (N. District of CA), and Jack McConnell (District of RI). Four of the five were voted out of committee on party line votes, while a vote on Chatigny was postponed due to the loss of a quorum. The Committee for Justice has explicated the five nominees’ troubling records in previous e-mails, but for an excellent summary of all five nominees in one place see the recent release by Judiciary Committee Republicans.

Radical nominees are not the only reason why Democrats’ blaming of Senate Republicans for the slow pace of confirmations is misplaced. As CFJ noted last week, “those unhappy with the Obama confirmation rates should be pointing their fingers . . . at President Obama and the Democratic Senate leadership for making judicial nominations a low priority.” Moreover, as Judiciary Ranking Member Jeff Sessions pointed out on the Senate floor yesterday,

“Allegations of ‘unprecedented’ obstruction and delay have been bandied about by some of our colleagues and their allies in the press. But the reality is, Democrats’ systematic obstruction of judicial nominees during the Bush Administration was unprecedented then and it is unmatched now.”

Sen. Sessions went on to painstakingly detail Democratic obstruction nominee by nominee, discussing more than a dozen of Bush’s blocked circuit court nominees and noting that

“Perhaps the most disturbing story was that of [DC Circuit nominee] Miguel Estrada … He waited sixteen months just for a hearing … After almost two-and-a-half years in limbo and a protracted six-month-long filibuster battle, Mr. Estrada withdrew his name … To this day, I remain baffled as to why such a fine nominee was treated so poorly, his character assassinated, and his nomination ultimately blocked for no reason.”

What Sessions didn’t mention were the Democratic Judiciary Committee memos which revealed that the party’s opposition to Estrada was based on concern that he would eventually become the first Hispanic Supreme Court Justice. Understandably, obstruction of Estrada remains the deepest wound from the nomination battles of the Bush years. As Roll Call pointed out yesterday,

“Estrada’s failed nomination is a frequent GOP talking point when discussing the highly political confirmation process, and Sessions charged the Democrats’ work to kill his nomination and others during President George W. Bush’s tenure is the cause for so many lower court vacancies nationwide.”

Despite the high profile and importance of the circuit to which Estrada was nominated, President Obama has not tried to fill its two vacancies. Presumably, the White House has been unable to find acceptable DC Circuit nominees that it believes can win confirmation.

The good news is that the President has an opportunity to solve the DC Circuit problem with a dramatic gesture that would also go a long way to heal the Bush-era wounds that have left the judicial confirmation process highly politicized and the GOP in no mood to make confirmation easy for Obama’s nominees. The dramatic gesture we have in mind is the nomination of Miguel Estrada to one of the vacant DC Circuit seats.

By nominating Estrada, the President would ensure quick confirmation of an extraordinarily qualified nominee to fill what is arguably the most important judicial vacancy in the nation. Even more importantly, Obama would be sending a powerful, highly visible signal of bipartisanship that Senate Republicans would be unable to ignore either politically or personally.

If it sounds like a crazy idea, consider that George W. Bush did the same thing – three times in fact – to encourage bipartisanship. Among President Bush’s first batch of appeals court nominees were Barrington Parker, a Clinton appointee to a lower court, and Roger Gregory, an unconfirmed Clinton nominee. Another unsuccessful Clinton nominee, Helene White of Michigan, was nominated by Bush to the Sixth Circuit in 2008. All three nominees were quickly confirmed.

Skeptics on the right will undoubtedly say that Obama is too rigidly ideological to nominate a conservative to the circuit courts. Skeptics on the left will say that Obama would be foolish to do so. But consider what the President would gain. Though Obama would be “giving up” a circuit court seat, the resulting good will and political pressure for reciprocal gestures would virtually guarantee easier confirmation for at least several of his judicial nominees.

Even putting judges aside, Obama would gain politically by replacing his talk about bipartisanship with highly visible and indisputable evidence of bipartisanship. Finally, keep in mind that the Democrats’ original reason for blocking Estrada – fear that he would become the first Hispanic Supreme Court Justice – is gone now that Sonia Sotomayor is on the Court.

CFJ doesn’t speak for Mr. Estrada, but the conventional wisdom is that he has no desire to subject himself to a repeat of the character assassination that accompanied his original nomination. But he need not worry. With bipartisan support, the confirmation process would be more like a love fest this time around, especially in the wake of Estrada’s letter endorsing Elena Kagan’s Supreme Court nomination and Kagan’s glowing testimony about Estrada during her confirmation hearings this summer. Kagan testified that Estrada “is a great lawyer and a great human being” and is “qualified to sit as an appellate judge [and] as a Supreme Court Justice.”

At this summer’s hearings, Kagan seemed genuinely embarrassed that she had not spoken out in support of Estrada – her friend since they attend Harvard Law School together – when he was nominated by President Bush. We’re guessing that Justice Kagan is one Democrat who would be thrilled to see Estrada renominated and confirmed to the DC Circuit.

Dahlia Lithwick: Congress Shouldn't Consider the Constitutionality of Legislation

2010-09-22T22:54:00.003-04:00

The left's premiere legal commentator drops a doozy today in her article on Christine O'Donnel at Slate.

O'Donnell explained that "when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional." How weird is that, I thought. Isn't it a court's job to determine whether or not something is, in fact, constitutional?

David Bernstein picks this apart at Volokh.

Short answer: Senators swear an oath to uphold the Constitution. Of course they are obligated to determine whether a bill they are considering is constitutional. Where did Lithwick get the idea that courts, and only courts, should be concerned with the constitutionality of legislation?

Somewhat longer answer: The Constitution doesn’t vest the authority to determine the constitutionality of legislation in any single branch of the government. In fact, not only does the Constitution not grant the judiciary the exclusive power to consider the constitutionality of legislation, it doesn’t speak of judicial review at all. I think that judicial review is implicit in the Constitution, for the reasons stated by Chief Justice Marshall in Marbury v. Madison. But there is no contradiction between allowing the Court to exercise its authority in its own sphere (i.e., when a lawsuit comes before the Court) while the other branches determine the constitutionality of legislation in their own spheres. At least since the late 1950s (Cooper v. Aaron), the Supreme Court has asserted that if an elected official defies a Supreme Court precedent, that official is violating his oath to uphold the Constitution. But even if we accept that it would be a dereliction of a Senator’s duty to vote for a law that he knew the Court would deem unconstitutional, I don’t know of any reason why a Senator should vote for a law that he deems unconstitutional, even if the Supreme Court would uphold such a law; no defiance is involved in such an instance, just an independent assessment of constitutionality. Regardless, it’s hardly the case, as Lithwick suggests, that a Senator should ignore constitutional issues, vote completely based on policy preference, and wait for the courts to sort things out.

Apparently still not thinking Lithwick follows up that bit of genius with the following.

In 2003, O'Donnell said of the Supreme Court that "it's kind of like we have the nine people sitting there in Washington who have a constitutional monarchy and that is an abuse of the system." So I do wonder a little whether she's claiming that her view of what's constitutional trumps theirs. Not a lot of space for checks and balances in that reading.

I truly hope that Lithwick is smart enough to realize that having Congress also contemplate the constitutionality of legislation is a check and balance, on the Court.

Richard Cohen Paraphrases Justice Breyer

2010-09-21T21:16:00.003-04:00

Cohen paraphrases Breyer in today's WaPo.

The Constitution is a wonderful document, quite miraculous actually, but only because it has been wisely adapted to changing times. To adhere to the very word of its every clause hardly is respectful to the Founding Fathers. They were revolutionaries who embraced change. That's how we got here.

Hey, when you have "unwavering values" who needs actual words.

More Breyer In The News

2010-09-20T22:48:00.004-04:00

From a WaPo feature:

Breyer's new book, "Making Our Democracy Work," underlines their disagreement in a chapter called "The Basic Approach."

"The court should reject approaches to interpreting the Constitution that consider the document's scope and application as fixed at the moment of framing," Breyer writes. "Rather, the court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances."

I have no idea what Justice Breyer considers to be the Constitution's "unwavering values" are, but they don't include political speech (Citizens United) or armed self-defense (McDonald), just to name a few recent examples. On the bright side, he realizes his own shortcomings.

Breyer, 72, said in an interview that he understands how that opens him to criticism of subjectivity, and that his approach lacks the simple message of originalism.

Breyer sells originalism short when he only cites its "simple message," but that is a post for another day. Besides, there are whole books dedicated to defending originalism. So how does Justice Breyer suggest going about interpteting the Constitution's "unwavering values"?

Judges should go about this, Breyer says, using "traditional legal tools, such as text, history, tradition, precedent, and purposes and related consequences, to help find proper legal answers. But courts should emphasize certain of these tools, particularly purposes and consequences. Doing so will make the law work better for those whom it affects."

Purposes and consequences? What does that even mean? How'd that work out for the ADA? How about the consequences of upholding much of the New Deal? That doesn't even get into looking at the stupidity of trying to figure out the law's purpose, which the Court, in the case of economic liberty, has said doesn't even matter. Breyer is right when he says that, "he understands how that opens him to criticism of subjectivity." The problem is that he answers that criticism by listing a bunch of subjective criteria to guide his decisions. I hope he continues his book tour. The public is getting a good look at the left's most prominent jurist. I have a feeling they won't like what they hear.

Justice Breyer in the News

2010-09-14T21:44:00.003-04:00

Justice Breyer:

1. is not so sure the Constitution protects Koran burning.

2. believes Adams helped write the Constitution.

I'll leave it to others to connect the two stories...

UPDATE: Justice Breyer has apparently walked back his previous comments on Koran burning during an appearance on Larry King's show. Ann Althouse adds:

What scares me is the thought that, if Justice Breyer had heard cheers at the hint that he might protect the feelings of Muslims over the free speech of Rev. Jones, he would have gone the other way.

GOP Stalling Judges??

2010-09-14T08:43:00.007-04:00

CFJ Executive Director Curt Levey on the pace of judicial confirmations:

Speaking about judicial nominations yesterday, Senate Judiciary Chairman Pat Leahy complained that “In my 36 years here in the Senate, I’ve never seen anything to match the delays we’ve seen in the last year and a half.” Leahy shouldn’t believe everything he reads in the papers.

During the past two weeks, various newspaper articles have left one with the impression that Senate Republicans have been master obstructionists when it comes to President Obama’s judicial nominees. Last week, the Associated Press claimed that a “determined Republican stall campaign in the Senate has sidetracked so many of [Obama’s judicial nominees] that he has put fewer people on the bench than any president since Richard Nixon.” Yesterday, Roll Call reported that only “42 of Obama’s 89 judicial picks … have been confirmed, setting a pace Democrats describe as painfully slow.” And a Los Angeles Times article had a similar theme two weeks ago.

The impression given is very misleading. In fact, the confirmation rate for Obama’s judicial nominees is similar to that for George W. Bush’s nominees, as various commentators have aptly explained (see here, here, here and here). Moreover, those unhappy with the Obama confirmation rates should be pointing their fingers not at the GOP – which is virtually powerless to stop a concerted Democratic effort to confirm nominees – but at President Obama and the Democratic Senate leadership for making judicial nominations a low priority. The Washington Post conceded in an editorial last week that “Responsibility starts with the president. Judicial nominations have not been high on Mr. Obama's to-do list.”

Nonetheless, the President blames Republicans and conjures up imagined filibusters. Last Friday, Obama claimed:

“We’ve got judges who are pending. We’ve got people who are waiting to help us on critical issues like homeland security. And it’s very hard when you’ve got a determined minority in the Senate that insists on a 60-vote filibuster on every single person that we’re trying to confirm.”

The truth is that not a single Obama judicial nominee has been blocked or even meaningfully delayed by a filibuster (last fall, there was a symbolic filibuster attempt against 7th Circuit nominee David Hamilton despite no chance of success). That stands in sharp contrast to the Bush years, during which Senate Democrats broke with two centuries of history by repeatedly using the filibuster to defeat or indefinitely delay judicial nominees with majority support. At least ten of Bush’s appeals court nominees met this fate during the 108th Congress.

Payback hasn’t been an option for Republicans because for much of Obama’s presidency, Senate Republicans lacked even the 41 votes necessary to contemplate a filibuster. And even now, with just 41 GOP votes in the Senate, no nominee short of Attila the Hun could be filibustered with Republican votes alone, given that several GOP senators are opposed to the filibustering of judicial nominees.

With statistics flying back and forth, one simple but important point is often lost: Given the numbers in the Senate since Obama took office, Senate Democrats have had the ability to confirm any nominee with majority support simply by making it a high enough priority to spend floor time on debate. The Los Angeles Times explains:

"‘Republicans can't stop Reid from bringing things to a vote, but what they can do is make the majority leader pick his priorities,’ [Curt] Levey said. He was referring to the option of invoking cloture, which allows the majority to call a vote but at the price of ceding the Senate floor for a maximum of 30 hours of debate, at the expense of other legislation sought by the administration."

Faced with the facts, Senate Democrats are forced to concede that they haven’t made judicial nominations a priority and have no plans to do so. Some months ago, Judiciary Committee member Sheldon Whitehouse “said moving nominees just hasn't been a priority and there's no indication when that will change” (quoting National Law Journal). Now, even with Democrats facing their last chance to use a considerable Senate majority to confirm judges, Roll Call reports that “adding nominations to the list of [fall Senate] priorities is unlikely, sources say.”

Kagan Battle Yields Conservative Gains

2010-08-05T16:58:00.001-04:00

In an op-ed in the Daily Caller, Curt Levey concludes that “believers in the rule of law have several things to cheer in the Kagan confirmation battle.”

Kagan & CA Gay Marriage Decision

2010-08-04T17:41:00.000-04:00

Statement of CFJ Executive Director Curt Levey:

Today’s activist court ruling striking down California’s traditional definition of marriage focuses attention on Elena Kagan’s troubling record of gay rights activism and, more generally, on what’s at stake if Kagan brings her “living Constitution” philosophy to the Supreme Court.

Whatever one thinks of gay marriage as a policy matter, it is clear that today’s decision by U.S. District Judge Vaughn Walker, one of two openly gay federal judges in the nation, is a particularly shameless example of judicial activism. Walker concluded that California’s traditional definition of marriage, affirmed most recently by voters’ approval of Prop 8, violates the Fourteenth Amendment’s Equal Protection Clause because the “purported rationales [for this definition] are nothing more than post-hoc justifications" by Prop 8’s proponents. But it is absurd to contend that the rationales that have justified a traditional definition of marriage for many thousands of years are post-hoc justifications. Moreover, there is nothing in the words, intent, or history of the post-Civil War Fourteenth Amendment – or any subsequent constitutional amendment – that suggests it applies to sexual orientation.

Instead, this is a classic example of a judge substituting his personal policy preferences for both the rule of law and the democratic will of the people – in this case, the will of the socially liberal voters of California who twice voted for a traditional definition of marriage.

There is little doubt that the California case will reach the U.S. Supreme Court and even less doubt about how Justice Elena Kagan would rule. There are numerous reasons to fear that Kagan will be an activist judge willing to put her liberal politics and personal feelings above the rule of law, but nowhere are those fears more well-founded than in the area of gay rights.

Not only did Kagan contravene federal law by denying military recruiters equal access to Harvard Law School students – citing the “moral injustice” of the military’s “don’t ask, don’t tell policy” – but she also allowed her strong feelings about gay rights to interfere with her duties as U.S. Solicitor General. At least twice, in cases involving challenges to the Defense of Marriage Act (DOMA) and the “don’t ask, don’t tell” policy, Kagan failed to vigorously defend federal law despite her institutional obligation and promise to senators to do so. Instead, Kagan maneuvered to avoid Supreme Court review of “don’t ask, don’t tell,” fearing it would be upheld, and “defended” DOMA with a brief that discarded the government’s strongest argument and called the law, signed by President Clinton, “discriminatory.”

That’s how Elena Kagan behaved when bound by institutional obligation and the accountability inherent in her at-will position as Solicitor General. Can there be any doubt that her passion for gay rights will trump the rule of law once she is freed of any accountability by a lifetime appointment to the Supreme Court?

Gay rights are not the only reason to be concerned about Elena Kagan and judicial activism. Judge Walker’s decision highlights the decades-long trend in which judges have usurped the role of democratically elected policy makers, becoming the ultimate arbiters of the great social issues of the day, from abortion to gay marriage and immigration. Knowing that these and many other controversial social issues will be decided by the Supreme Court, no senator can conscientiously justify a vote for Elena Kagan’s confirmation solely by referencing her intelligence and resume. Instead, as I recently argued

“A senator voting for Kagan should be willing to acknowledge that their vote is essentially a vote for same-sex marriage, strict gun control, partial birth abortion, racial preferences, ObamaCare, and the like. … In some blue states, constituents will have little problem with their senators casting a vote for Kagan and the liberal policies she is likely to pursue on the Court. But those states are the exception. … [P]olls indicate that, nationwide, Kagan is on the wrong side of the American people on the leading social issues by large margins.”

Arizona, Kagan & Race at DOJ

2010-07-28T16:51:00.002-04:00

Statement of CFJ Executive Director Curt Levey:

Today’s ruling by U.S. District Judge Susan Bolton blocking the core provisions of Arizona’s immigration law reminds Americans of what’s at stake in the Elena Kagan confirmation fight. It also gives the Obama Administration an opportunity to counter the increasing suspicion of race-related politicization at the Justice Department.

An initial reading of Judge Bolton’s opinion, issued earlier this afternoon, reveals it to be weak on both legal analysis and deference to the fact-finding, policy determinations, and judgment of the people of Arizona’s duly elected representatives. In other words, her opinion is yet another example of the decades-long trend that has seen the courts assume the role of policy makers, becoming the ultimate arbiters of the great social issues of the day, from abortion to gay marriage and now immigration. Call it “judicial activism” or whatever you like, but it is a dramatic departure from the role of judges during most of America’s history, during which the great social issues of the day were decided by democratically elected legislatures at the state, local and federal levels.

The anti-democratic nature of expanded judicial power is made worse by the fact that the policy pronouncements of the courts are typically in line with elite opinion and at odds with public opinion. There are few better examples than Judge Bolton’s ruling today. If public opinion in Arizona and elsewhere didn’t favor a crackdown on illegal immigration, the opponents of the Arizona law would be running to the statehouses instead of the courts.

Like it or not, it’s a given these days that the most controversial social issues will ultimately be decided by the U.S. Supreme Court. That is why a senator cannot conscientiously justify a vote for Elena Kagan’s confirmation solely by referencing her intelligence and the considerable – but hardly absolute – deference that a President’s judicial picks deserve, while ignoring Kagan’s activist judicial philosophy and her liberal policy preferences.

A senator voting for Kagan should be willing to acknowledge that their vote is essentially a vote for same-sex marriage, strict gun control, partial birth abortion, racial preferences, ObamaCare, and the like. While there is little direct evidence of how Kagan will vote when the Arizona immigration law reaches the Supreme Court, there is every reason to believe she will vote to strike it down, give her admittedly liberal politics and the reality that Obama was looking for a nominee who could be counted on to uphold his Administration’s policies.

To be fair, there is a theoretical possibility that once on the Supreme Court, Kagan will rise above her policy preferences and be guided only by the rule of law. However, there is much in Kagan’s record to indicate otherwise and there is no judicial record to reassure us.

In some blue states, constituents will have little problem with their senators casting a vote for Kagan and the liberal policies she is likely to pursue on the Court. But those states are the exception. As I discussed in a recent op-ed, polls indicate that, nationwide, Kagan is on the wrong side of the American people on the leading social issues by large margins. Most Democratic senators and even some Republicans from red and purple states will nonetheless vote for Kagan and her liberal policies. But those senators should acknowledge the agenda they are voting for and be willing to be held accountable for it.

Turning to the Obama Justice Department, today’s ruling provides the Department with a chance to counter the charges of race-related politicization at DOJ that have grown out of the New Black Panther Party case, the alleged prohibition on prosecuting “reverse” racism, and the decision to challenge the Arizona immigration law before reading it. Under Judge Bolton’s broad interpretation of the Constitution’s Supremacy Clause, it is clearer than ever that the “sanctuary city” legislation enacted by localities across the nation is very vulnerable to constitutional challenge. After all, while the Arizona law at most expands upon federal law, sanctuary city legislation directly seeks to thwart federal immigration law.

Therein lies the opportunity. If the Obama DOJ decides to put politics aside and challenge sanctuary city laws with the same enthusiasm that it went after the Arizona immigration law, that decision would go a very long way to counter the charges of politicization. If, instead, the Justice Department ignores the opportunity presented by Judge Bolton’s broad reading of the Supremacy Clause and continues to acquiesce in the unconstitutionality of sanctuary cities, it will merely cement the growing suspicion that DOJ is more interested in politics than law, especially where race is concerned.

Why Republicans Shouldn't Unilateral Disarm in Fight Over Judicial Nominees

2010-07-23T18:10:00.002-04:00

Senate Democrats regret supporting Roberts, Alito. Republicans cannot win them over by supporting their nominees. The media may fawn over Republicans that vote yes, like Sen. Graham, but it doesn't matter in the end.

There was also this little nugget, which cannot be repeated enough.

The Washington Post reported a few years ago that Obama initially wanted to vote for Roberts, but was talked out of it by his staff. Obama, reportedly impressed by Roberts’s intellect, was advised a yes vote would cripple a future presidential run. Obama subsequently voted no.

This is what the GOP is up against. Not principle. Rank partisanship. They should act accordingly.

Tea Party & Why Kagan is Unpopular

2010-07-21T14:31:00.001-04:00

In a RedState post, CFJ Executive Director Curt Levey explains why a cartoon in today’s Washington Post accusing the tea party movement of racism is grounded in ignorance of the Constitution and the civil rights movement.

And in an op-ed at the Daily Caller, Levey explores the reasons why public support for Elena Kagan is at a historical low for a Supreme Court nominee headed for confirmation. He argues that Kagan’s unpopularity has much to do with her positions on the issues that dominate the public debate about her nomination. On these issues – gun rights, gay rights, partial birth abortion, and the like – polls show that Kagan is on the wrong side of the American people by large margins. Levey concludes that “the chasm between Kagan and the American people on a host of hot-button issues presents a valuable electoral opportunity for the GOP.”

New Blog Devoted to Tracking Obamacare Litigation

2010-07-20T22:55:00.002-04:00

For those interested in following the legal challenges as they wind their way through the courts, there is a new blog that is doing just that: aca litigation blog.

New York Times: All "Good Ideas" Are Constitutional

2010-07-20T13:43:00.002-04:00

In an editorial defending Kagan the NYT argues in support of the broadest possible reading of the commerce clause because it empowers Congress to do "some of the best things that government has done for the better part of a century, and some of the best things that lie ahead."

Ann Althouse:

That's the argument. The Constitution should mean what it needs to mean so that we can get the things that we want from government — all those fine things that government deigns to do for us. ...

The idea that constitutional law stands apart from political preferences is nowhere to be found. I guess NYT readers aren't supposed to notice that.

Coburn: By Her Own Words, Kagan Will Violate Her Oath

2010-07-20T10:10:00.001-04:00

Sen. Tom Coburn to vote no on Kagan.

Even more troubling was Kagan’s refusal to say whether she believed in the principle of natural rights contained in the Declaration of Independence. Kagan told me, “I don’t have a view of what are natural rights independent of the Constitution.”

While I understand a nominee’s reluctance to express personal beliefs, it was extraordinary to hear a Supreme Court nominee decline to endorse the concept of natural rights contained in the Declaration of Independence that is the very basis of our Constitution.

Kagan’s answer exposed a troubling train of thought in progressive ideology. Refusing to acknowledge natural or God-given rights removes the morality from the progressive’s moral certitude. Without natural law there would have been no Constitution. Without natural law, “progressives” would take us back to the 17th century, when rights emanated from the state or the king rather than the creator.

The Individual Mandate's Shifting Justification

2010-07-19T10:37:00.002-04:00

Much of the debate over the constitutionality of Obamacare's individual mandate revolved around the Commerce Clause. These challenges were laughed off by much of the press and the punditocracy, not to mention many members of Congress. Well, it looks like the challenges weren't so frivolous because the administration has changed its tune. The mandate is now a tax.

Congress can use its taxing power “even for purposes that would exceed its powers under other provisions” of the Constitution, the department said. For more than a century, it added, the Supreme Court has held that Congress can tax activities that it could not reach by using its power to regulate commerce.

While Congress was working on the health care legislation, Mr. Obama refused to accept the argument that a mandate to buy insurance, enforced by financial penalties, was equivalent to a tax.

“For us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase,” the president said last September, in a spirited exchange with George Stephanopoulos on the ABC News program “This Week.”

When Mr. Stephanopoulos said the penalty appeared to fit the dictionary definition of a tax, Mr. Obama replied, “I absolutely reject that notion.”

Congress anticipated a constitutional challenge to the individual mandate. Accordingly, the law includes 10 detailed findings meant to show that the mandate regulates commercial activity important to the nation’s economy. Nowhere does Congress cite its taxing power as a source of authority.

Professor Randy Barnett takes a look at the shift over at the Volokh Conspiracy.

Now there are cases that say (1) when Congress does not invoke a specific power for a claim of power, the Supreme Court will look for a basis on which to sustain the measure; (2) when Congress does invoke its Tax power, such a claim is not defeated by showing the measure would be outside its commerce power if enacted as a regulation (though there are some older, never-reversed precedents pointing the other way), and (3) the Courts will not look behind a claim by Congress that a measure is a tax with a revenue raising purpose.

But I have so far seen no case that says (4) when a measure is expressly justified in the statute itself as a regulation of commerce (as the NYT accurately reports), the courts will look look behind that characterization during litigation to ask if it could have been justified as a tax, or (5) when Congress fails to include a penalty among all the “revenue producing” measures in a bill, the Court will nevertheless impute a revenue purpose to the measure.

Now, of course, the Supreme Court can always adopt these two additional doctrines. It could decide that any measure passed and justified expressly as a regulation of commerce is constitutional if it could have been enacted as a tax. But if it upholds this act, it would also have to say that Congress can assert any power it wills over individuals so long as it delegates enforcement of the penalty to the IRS. Put another way since every “fine” collects money, the Tax Power gives Congress unlimited power to fine any activity or, as here, inactivity it wishes! (Do you doubt this will be a major line of questioning in oral argument?)

But it gets still worse. For calling this a tax does not change the nature of the “requirement” or mandate that is enforced by the “penalty.” ALL previous cases of taxes upheld (when they may have exceeded the commerce power) involved “taxes” on conduct or activity. None involved taxes on the refusal to engage in conduct. In short, none of these tax cases involved using the Tax Power to impose a mandate.

So, like the invocation of the Commerce Clause, this invocation of the Tax Power is factually and judicially unprecedented. It is yet another unprecedented claim of Congressional power. Only this one is even more sweeping and dangerous than the Commerce Clause theory.

Kagan and Obamacare Recusal

2010-07-13T09:14:00.002-04:00

WSJ implores the Senate to press Kagan on her role in Obamacare to determine whether she should be required to recuse herself when the inevitable challenge reaches the Supreme Court.

In response to Senate queries, Ms. Kagan has said she'll recuse herself from participating in 11 cases on which she represented the government in her current job as Solicitor General. The challenge to ObamaCare isn't one of them, though the cases brought by Florida and 20 other states were filed in March, well before President Obama announced her nomination on May 10.

Ms. Kagan was never asked directly at her hearings about her role as SG regarding the health-care lawsuits. The closest anyone came was this question from Oklahoma Republican Tom Coburn: "Was there at any time—and I'm not asking what you expressed or anything else—was there at any time you were asked in your present position to express an opinion on the merits of the health-care bill?"

Ms. Kagan: "There was not."

Regarding a potential recusal, that's not the right question. Ms. Kagan was unlikely to have been consulted on the merits of health-care policy, and even if she did express an opinion on policy this would not be grounds for recusal. The legal precedents on that are clear.

Recusal arises as a matter of judicial ethics if as a government official she expressed an opinion on the merits of the health-care litigation. This is what she would have to render a judgment on were she to be confirmed for the High Court. It is also the question on which she is likely to have participated given her role at the Justice Department.

A New Take On "If At First You Don't Succeed, Try, Try Again"

2010-07-12T22:30:00.002-04:00

From Walter Olson:

Similarly, there are said to be internationally recognized rights to government-provided housing, day care, and even (at least in Europe) tourism.

These notions are at odds with longstanding ideas of sovereignty and national independence, as held by (among many others) the Founders of this Republic. That they could also pose more direct dangers to individual liberty is suggested by a news item that drew only passing attention a few weeks ago: Chicago Mayor and long-time anti-gun advocate Richard Daley convened an assembly on global issues at which (per the Chicago Sun-Times) he “convinced more than a dozen of his counterparts from around the world to approve a resolution urging ‘redress against the gun industry through the courts of the world’ in The Hague.” According to another local news report, Daley “said American gun manufacturers should be held responsible in the World Court, since American-made guns are used in violent crime elsewhere in the world.” Philadelphia Mayor Michael Nutter and the mayor of Mexico City were among those endorsing the idea. David Kopel at Volokh Conspiracy has much more on the conditions that would have to be met for the World Court to assert jurisdiction.

Chicago and its mayor were in the Second Amendment spotlight most recently with the McDonald case, in which the U.S. Supreme Court struck down the city’s ultra-strict anti-gun ordinance as in violation of the Bill of Rights. But the real antecedent of Daley’s latest idea was the late-Nineties litigation ginned up by anti-gun advocates and trial lawyers on behalf of three dozen cities and counties, which mostly fared poorly in court, yet still, through sheer cost-infliction, very nearly achieved its goal of off-the-statute-books gun control through litigation). That litigation campaign was decisively rejected and stopped in its tracks by Congress in the Protection of Lawful Commerce in Arms Act, signed by then-President George W. Bush in 2005. In other words, Daley is seeking an international end run around both the Bill of Rights and the democratically expressed will of the American people. Aren’t Chicago voters tired of this yet?

Veteran Slams Kagan's Hypocrisy

2010-07-12T15:20:00.002-04:00

Ouch:

In a devastating critique, Harvard graduate student and Army Captain Pete Hegseth pointed out Kagan’s hypocrisy and “intellectual dishonesty” in blaming the military for the “Don’t Ask, Don’t Tell” policy which, he correctly points out, was imposed by civilians during the Clinton administration.

“In emails to students and statements to the press, Ms. Kagan slammed – and I quote – ‘the military’s discriminatory recruitment policy.’ Yet as a legal scholar, she knows better than that,” Hegseth testified. “She knows the policy that she abhors is not the military’s policy, but a policy enacted by Congress and imposed on the military. In fact, after the law was passed, Ms. Kagan went to work for the very man who signed ‘Don’t Ask, Don’t Tell” into law, President Clinton.”

Hegseth went on to point out that Kagan didn’t utter a peep of protest when Harvard accepted money from Saudi Arabia:

“Harvard has three academic chairs endowed by money from Saudi Arabia, a country where being a homosexual is a capital offense. So rather than confront the congressional source of the true legislation or take a stance against a country that executes homosexuals, Ms. Kagan zeroed in on military recruiters for a policy they neither authored nor emphasized.”

NRA Ramps Up Kagan Opposition

2010-07-12T13:09:00.002-04:00

Statement of CFJ Executive Director Curt Levey:

Politico reports today that the National Rifle Association “is facing mounting criticism from influential allies on the right and even from its own board over a series of recent moves,” including “taking a cautious approach to … President Barack Obama’s judicial nominees,” most recently Supreme Court nominee Elena Kagan. In addition to consistently taking alarming positions on gun rights, Kagan has compared the NRA to the Klu Klux Klan. The NRA is apparently taking the criticism about nominees to heart, as witnessed by its debut Friday of a Kagan ad that “will be airing across the country.”

The ad uses video of Elena Kagan and Sonia Sotomayor testifying before the Judiciary Committee to remind viewers that both women recited the same carefully worded recognition of Second Amendment rights while testifying before the Judiciary Committee. Yet in the Supreme Court’s landmark Second Amendment decision last month in McDonald v. Chicago, “Sotomayor ruled exactly the opposite.” She “would have erased the Second Amendment from the Constitution,” the ad says.

Most importantly, the NRA ad concludes by urging Americans to “Call your senator. Tell them not to fall for the same trick twice.” In an e-mail announcing the ad, the NRA specifies that citizens should ask senators “to oppose and filibuster Kagan's confirmation” and explains that

“Both [Kagan’s] political career in the Clinton Administration and her testimony before the Senate Judiciary Committee make it clear that Kagan would be a serious opponent of our Second Amendment Rights.”

As we did last summer with the Sotomayor nomination, CFJ has respectfully urged the NRA to take a strong stand against the confirmation of Elena Kagan. We are encouraged that the NRA has followed up on its July 1 letter – opposing Kagan and announcing it will include votes on her confirmation in its candidate evaluations – with the debut of this ad.

Going forward, we urge the NRA to focus its efforts on senators whose votes on Kagan are in play – for example, by airing TV and radio ads in their states, lobbying them hard in Washington, and withholding endorsement in the coming election from any senator who votes to confirm Kagan. See here for our discussion of reports that the NRA is considering endorsing Senate Majority Leader Harry Reid. Note that Kagan is already an issue in several Senate races where Democratic incumbents are in trouble, including even Russ Feingold’s reelection battle in the Democrat-leaning but pro-Second Amendment state of Wisconsin.

Bad News for Reid: NRA Opposes Kagan

2010-07-02T11:52:00.003-04:00

Statement of CFJ Executive Director Curt Levey:

The Committee for Justice commends the NRA for its letter to senators yesterday announcing that it will “oppose the confirmation of Solicitor General Elena Kagan to the U.S. Supreme Court” and score the confirmation vote – that is, include senators’ votes on Kagan “in NRA's future candidate evaluations.” In the letter, the NRA points out that Kagan “has repeatedly demonstrated a clear hostility to the fundamental, individual right to keep and bear arms guaranteed under the U.S. Constitution” and that she “repeatedly declined to say whether she agrees with the dissenting views of Justices Stevens, Breyer, Ginsburg and Sotomayor” that the Second Amendment affords no such right.

As Roll Call notes, the letter “could put pressure on a handful of moderate Democrats … to break with their party and vote against Kagan.” We hope that the NRA will maximize the impact of its letter by “working” the vote – that is, lobbying senators to vote no on Kagan’s confirmation.

Apart from the confirmation vote, the thing most affected by yesterday’s letter may be Senate Majority Leader Harry Reid’s chances of reelection in Nevada. It had been rumored that the NRA was planning to endorse Reid in his race against pro-gun Republican nominee Sharron Angle. Despite a dubious Second Amendment record, Reid’s standing with the NRA improved after he helped secure land and $60 million in funding for the world’s largest shooting range, which opened in North Las Vegas last August.

But yesterday’s letter changes the equation. If Reid votes to confirm Kagan, it is difficult to see how the NRA can go ahead and endorse him without losing face, given both the close timing and prominence of yesterday’s letter and Sharron Angle’s opposition to Kagan.

As recently as last week, the NRA was reluctant to get involved in the Kagan confirmation battle either directly or through its board members. The negative publicity and membership cancellations that resulted from its reluctance is undoubtedly part of the explanation for yesterday’s dramatic change of course.

However, the NRA letter suggests that the reasons go deeper. Following the Supreme Court’s 5-4 McDonald decision last week, the NRA is focused on the sobering fact that “four justices would effectively write the Second Amendment out of the Constitution.” The four include Justice Sotomayor, and the letter expresses particular concern that Sotomayor has taken this position despite testifying last summer that the Supreme Court's recognition of individual Second Amendment rights is "settled law". Clearly, the NRA fears that Elena Kagan, if confirmed, will repeat “Sotomayor's blatant reversal.”

Also telling is the letter’s declaration that an “individual who does not believe that the Second Amendment guarantees a fundamental right … should not serve on any court” (emphasis added). Some say the NRA was reluctant to oppose Kagan because of the long odds against stopping her. But the declaration acknowledges that this confirmation fight is about more than stopping one nominee. In the wake of the Supreme Court’s Heller and McDonald decisions, the battleground for gun rights has shifted from the legislatures to the courts. The NRA appears to recognize that this new reality brings the need for a long-term, principled commitment to opposing judicial nominees who do not respect Second Amendment rights, and to holding senators who vote for them accountable.

That leaves us hopeful that the NRA will work the Kagan confirmation vote despite the odds and will refrain from endorsing senators, like Harry Reid, who vote to confirm Kagan. In the longer term, we hope the NRA will institutionalize its recognition of the new reality by creating a permanent office or task force devoted to researching and evaluating the Second Amendment records of all federal judicial nominees, and to identifying those nominees whose records are troubling enough to warrant the NRA’s opposition.

Hatch to Vote No on Kagan

2010-07-02T11:15:00.002-04:00

From the press release:

“I have carefully examined Solicitor General Elena Kagan’s record, actively participated in the entire Judiciary Committee hearing, and considered the views of supporters and opponents from Utah and across the country. Qualifications for judicial service include both legal experience and, more importantly, the appropriate judicial philosophy. The law must control the judge; the judge must not control the law. I have concluded that, based on evidence rather than blind faith, General Kagan regrettably does not meet this standard and that, therefore, I cannot support her appointment.

“Supreme Court Justices who, like General Kagan, had no prior judicial experience did have an average of 21 years in private legal practice. General Kagan has two. The fact that her experience is instead academic and political only magnifies my emphasis on judicial philosophy as the most important qualification for judicial service.

“Over nearly 25 years, General Kagan has endorsed, and praised those who endorse, an activist judicial philosophy. I was surprised when she encouraged us at the hearing simply to discard or ignore certain parts of her record. I am unable to do that. I also cannot ignore disturbing situations in which it appears that her personal or political views drove her legal views. She promoted the Clinton administration’s extreme position on abortion, including the barbaric practice of partial-birth abortion.
As Dean of Harvard Law School, she blocked the access by military recruiters that federal law requires. And she took legal positions on important issues such as freedom of speech that could undermine the liberties of all Americans.

“General Kagan is a good person, a skilled political lawyer, a brilliant scholar, and was a fine law school dean. I like her personally and I supported her to be Solicitor General. But applying the standard I have always used for judicial nominees, I cannot support her appointment to the Supreme Court.”

Kagan's precedents on guns

2010-07-01T15:11:00.002-04:00

When saying one with follow precedent doesn't mean a lot. From a piece that I had at Fox News:

alarm bells should have gone off during Elena Kagan’s confirmation testimony to the Senate Judiciary Committee on Tuesday. Here’s what Kagan told Sen. Charles Grassley (R-Iowa):

It has long been thought, starting from the “Miller” case, that the Second Amendment did not protect such a right. . . . Now the Heller decision has marked a very fundamental moment in the court's jurisprudence with respect to the Second Amendment. And as I suggested to Senator Feinstein there is not question going forward that ‘Heller’ is the law, that it is entitled to all the precedent that any decision is entitled to and that is true to the ‘McDonald’ case as well...

There are two big problems with Kagan’s remarks: she inaccurately describes the 1939 Miller case and her claims to follow stare decisis are meaningless.

The Miller decision said that the Second Amendment protected civilian use of firearms that are used in the military and that a sawed off shotgun wasn't a military weapon. But the court went no farther in explaining the right. There was no discussion of the modern liberal view of a “collective right.” The very short opinion didn’t say if there was an individual right to own military weapons. The issues were never addressed.

However, Kagan’s argument is precisely what Justice Stevens wrote about when he and the other liberal Supreme Court justices opposed Heller. They claimed that Miller was the real precedent and that there was no individual right to own a gun. Stevens asserted that “Heller” and “McDonald” were the real aberrations from court precedent.

Kagan’s statement surely shows that she also believes the Heller decision broke with past precedent. Saying that Heller and McDonald are “entitled to all the precedent that any decision is entitled to” also means that her strained interpretation of Miller is entitled to the same precedent. . . .

Chicago Gun Control: The Sequel

2010-07-01T14:30:00.002-04:00

I previously suggested why I thought McDonald would not take the gun rights issue of the table for Dems. This is why:

After spending two years fighting a legal battle that was clearly futile from the start, he didn't take the defeat graciously. He resentfully acknowledged his obligation to abide by the Second Amendment while pledging new shackles for those unwilling to depend entirely on 911 for home security.

The mayor is expected to demand registration of all handguns, mandatory training for gun owners and a limit of one handgun per person. This last novel idea comes from Corporation Counsel Mara Georges, who according to the Associated Press "says the court ruled people can have a gun for protection, but didn't say they're allowed more than one."

Kagan's Lying Her Pearls Off

2010-07-01T12:27:00.001-04:00

From "The Kagan Hearings" at Human Events. Five areas where Kagan has told outright lies.

Property Rights

If you want to hear a bizarre response to a legal question, listen to Kagans response to Senator Grassleys question on Kelo, the case that essentially decided that party As property can be given to party B if party B can generate more tax revenue from the property. Grassley asked if she agreed with Kelo.

Kagans answer: the goal of Kelo was to kick it back to the states. She then said that the states had taken actions to prevent Kelo-type situations from occurring.

This is nonsense. It is equivalent to arguing that Plessy v. Ferguson was an attempt to kick it back to the states, forcing them to pass laws barring segregation, rather than an obviously horrible decision legalizing segregation under the Fourteenth Amendment. The purpose of Supreme Court decisions is to set the state of the law. It is not to incentivize states to do anything. We can only imagine that Kagan will attempt to use this same justification in the future for all her bad decisions (I was only attempting to incenvitize states to do X!).

Kagan Not a Fan of Limited Government, Natural Rights, or Even the Declaration of Independence

2010-07-01T10:37:00.002-04:00

Are we really at a point with these hearings where a nominee cannot safely express agreement with the Declaration of Independence, four days before Independence Day? Or is she just really not a fan?.

Breyer Versus Second Amendment

2010-07-01T01:38:00.002-04:00

Related: Ilya Somin - "Constitutional Rights that Put Lives at Risk"

Quote of the Day

2010-07-01T01:22:00.001-04:00

"What Thomas has created, however, is a legal defense of the Second Amendment so thoroughly original and starkly race-based that none of the white justices would even acknowledge it, as if it were some blank sheet crafted by an invisible man."

Kagan Hearings: CFJ's Live Blogging

2010-06-30T17:18:00.002-04:00

Commentary by CFJ Executive Director Curt Levey:

5:03 pm:

Kagan once again dodged the question of why she required Harvard Law students to take international law but not constitutional law. Instead, she simply restated her opinion that constitutional law should be a second year course. That begs the question of why it shouldn’t be a required second year course. For example, Professional Responsibility is a required course at Harvard Law School even though students take it in their second or third year.

4:46 pm:

You’ve got to give Sen. Franken credit for his creativity. He just defined “judicial activism” so as to exempt from that label any decision that “show[s] a special solicitude for the despised and disadvantaged” (quoting Kagan describing Justice Marshall). In other words, Franken exempts decisions that favor the little guy, consistent with the Democrats’ theme for these hearings. Ironically, Franken bases this exemption on footnote 4 of Carolene Products, which would have been one of the most blatant examples of judicial activism if it were binding law. Instead, it was merely dicta.

4:23 pm:

I don’t want the exchange about natural and preexisting rights between Kagan and Sen. Coburn to obscure the fact that one need not look outside the Constitution to conclude that the Second Amendment is a fundamental right that extends to the states, as the Supreme Court concluded in McDonald earlier this week. To put it another way, there is no principled reason for concluding that the right to keep and bear arms is any less fundamental and applicable to the states than the rest of the Bill of Rights. Yet that would have been the Court’s conclusion if Justice Sotomayor and her three liberal colleagues had had their way in McDonald.

3:16 pm:

Kagan says she agrees that evolving traditions are one of the factors courts can look to in interpreting the Constitution. Sen. Cornyn responds that it’s the job of the democratically elected legislature, not the courts, to move the law in accordance with the traditions and values of the people it represents. Instead, as Justice Scalia remarked in his Romer v. Evans (1996) dissent, it’s the evolving “views and values of the lawyer class from which the Court's Members are drawn" that the Court tends to enforce. Those who prefer the living Constitution approach to the law do so precisely because more democratic methods of moving the law – legislation and constitutional amendments – do not allow the intellectual elite to impose its values on average Americans.

2:55 pm:

Lindsey Graham says the term “judicial activism” means little more than that a case was decided contrary to how we would have liked. It’s certainly true that the Left has tried to redefine “judicial activism” that way. But it would have been much more helpful for Sen. Graham to explain the difference between true judicial activism – making stuff up, to put it in layman’s terms – and the faux “judicial activism” of the Roberts Court, i.e., moving the law closer to the text and original intent of the Constitution and statutes. Liberals may not like that strict constructionist approach to the law, but such an approach is the opposite of making stuff up.

LUNCH BREAK

1:03 pm:

Oy, Sen. Specter is back to complaining about the “congruence and proportionality” test for the 14th Amendment’s Enforcement Clause. It’s his favorite example of the Supreme Court allegedly giving too little deference to Congressional findings, a theme Specter seems obsessed with. We hear that theme every time Specter questions a Supreme Court nominee. I’m not sure a long-time member of Congress like Specter is in the best position to dispassionately assess whether Congress gets enough deference.

12:49 pm:

Sen. Grassley asks Kagan about gay marriage, specifically is it an issue to be decided by the states. I’m glad Grassley is focusing on the issue because, at this time, the number one goal of the purveyors of judicial activism is the discovery of a right to gay marriage in the U.S. Constitution. Given Kagan’s strong feelings about gay rights, the discovery of a right to gay marriage has to be the top concern of those who fear Kagan will be an activist judge.

12:09 am:

In trying to defend kicking military recruiters off the Harvard Law School campus, Kagan states that the Law School’s Career Service does nothing more than provide students with information and facilitate meetings with employers. Kagan is trying to portray Career Service’s role as minimal enough to be easily substituted for. Forcing the armed forces to find a substitute is hardly the “equal” access required by the Solomon Amendment. But in any case, Kagan is downplaying the role of Career Services. I was a student at Harvard Law School shortly before Kagan became dean and I can tell you that Career Services’ role in student job hunting was paramount. Because Career Services provided access to a large and varied set of employers, most students relied entirely on Career Services in finding a job, rather than trying to discover and set up interview opportunities outside of Career Services. Sure, a highly motivated student could go outside Career Services, but that’s like saying that the segregated schools of the pre-Brown era provided an “equal” education to minority students because highly motivated black students could still get a good education.

A colleague adds the following point about Kagan’s argument that asking a student group to facilitate interviews with military recruiters was a sufficient substitute:

“Would Kagan support students seeking abortions to be referred to an unfunded social group of volunteers instead of the student health center?”

11:39 am

Sen. Sessions points out that Kagan, as Solicitor General, didn’t meet even her minimal responsibility to defend federal law in a Ninth Circuit challenge to “Don’t Ask, Don’t Tell.” I note that she also fell short of that responsibility in “defending” the Defense of Marriage Act. Kagan tries to explain her decision not to appeal to the Ninth Circuit, citing the fact that it would have been an interlocutory appeal – that is, an appeal of an intermediate issue before a final decision in the case. But Sessions has already pointed out that such an explanation is in striking contrast to Kagan’s reaction to the interlocutory appeal in the Solomon Amendment case Rumsfeld v. FAIR. In kicking military recruiters off the Harvard Law School campus for the second time, Kagan not only elevated the importance of the Third Circuit’s decision in the interlocutory appeal, but ignored the fact that the decision didn’t apply to the First Circuit city of Cambridge, MA.

11:16 am

Outside the hearing room during the break, Sens. Cornyn, Coburn and Kyl are before the cameras. Sen. Kyl notes that the Commerce Clause is very broad, as Kagan has stated during the hearings, only because the Court has made it very broad through “interpretation.” Fortunately, Kagan conceded this morning that stare decisis is at its strongest when the Court is interpreting statutes rather than constitutional provisions like the Commerce Clause. Perhaps she will not complain if the Court restores a little bit of original intent to the Commerce Clause in striking down Obamacare’s individual mandate.

11:02 am:

Professional comedian Sen. Franken is trying to be funny. Sadly, he is not nearly as funny as Elena Kagan has been during the hearings. I don’t like her judicial philosophy but I have to admit that I do like her sense of humor.

10:47 am

Sen. Franken is whining about Citizens United, like most of his Democratic colleagues on the panel. I think it’s fair to say the Democrats are obsessed with that case. Could the depth of their obsession have something to do with concern that the Court reaffirming the free speech rights of corporations will not benefit Democrats electorally? The Democrats’ rush to pass the DISCLOSE Act before November suggests that electoral concerns, more than principle, are driving the obsession.

10:24 am:

Now that Kagan has declared that “results-oriented judging” is the “worst thing you can say about a judge,” will the Democrats retreat from the theme they’ve chosen for these hearing – that is, will they stop decrying Supreme Court decisions, such as Ledbetter, solely because the result is perceived to benefit big guys over little guys?

Update: See here for a good discussion of how the Democratic senators questioning Kagan are “peddling fables about” the Ledbetter case.

Democrat: It's wrong to push through sweeping changes on a narrow, non bipartisan basis

2010-06-30T09:15:00.002-04:00

Sheldon Whitehouse (D- Rhode Island) appears to be making the argument that the mark of an acceptable judicial opinion that overturns laws is not whether it is grounded in law but that it is bipartisan and not passed by narrow margins, comparing Brown v. Board and Roe v. Wade favorably to cases like Citizens United, or McDonald v. City of Chicago.

Considering that the Democrats just rammed through a bill vastly expanding government control of our health care, completely reordering one sixth of our economy, and solidly opposed by a majority of the people without a single Republican vote by the narrowest margin possible, this appeal to bipartisanship comes off very hollow.

So, apparently, the judicial branch should think about bipartisanship and large majorities, rather than whether the law justifies their rulings, but when the political branches act, if they have the power, they should not worry about compromise or working with the other side of the aisle.

Can The Government Tell You What to Eat?

2010-06-29T22:44:00.002-04:00

The look on Kagan's face is priceless.

Democrats quietly cheer high court gun ruling

2010-06-29T11:13:00.003-04:00

From Politico:

When the Supreme Court extended the individual right to own a gun Monday, they handed Second Amendment advocates—many of whom are at home in the GOP—one of their most significant legal victories ever.

But who won the day in politics? The Democrats.

For them, the court’s groundbreaking decision couldn’t have been more beneficial to the cause in November. Now, Democratic candidates across the map figure they have one less issue to worry about on the campaign trail. And they won’t have to defend against Republican attacks over gun rights and an angry, energized base of gun owners.

“It removes guns as a political issue because everyone now agrees that the Second Amendment is an individual right and everybody agrees that it’s subject to regulation,” said Lanae Erickson, deputy director of the culture program at the centrist think tank Third Way.

I realize they may be happy, but I am not so sure they won the day. All of their preferred justices dissented, and they are about to replace one dissenter with another. Much like Roe, the issue is now firmly embedded in the courts, which will keep the issue alive for a generation, at least. Unless Democrats question Kagan on guns and vote accordingly they are not going to escape the issue. As the WSJ points out below, the liberal justices are lying in wait to overturn both Heller and McDonald. Should President Obama get to replace one of the conservative justices or Justice Kennedy both cases likely go out the window. The liberal justices have shown exactly zero respect for Heller as precedent. I fail to see this as a winner for Democrats unless they vote against Kagan, citing concerns over gun rights. I am not going to hold my breath.

Feinstein on Judicial Inexperience, Then and Now

2010-06-29T10:31:00.002-04:00

From Patterico:

Dianne Feinstein, February 10, 2003:
Miguel Estrada has never been a judge. So we have no record of judicial decision-making to examine. This is not dispositive in itself, but it is the first area where we find no record to help us in our decision.

Mr. Estrada is not a prolific writer. So we have no real record of writing to examine. Again, this alone would not be dispositive, but it is strike 2 in terms of where we can get information about this nominee.

We have not been granted access to the memos he wrote at the Department of Justice. So we can only take the word of the man who supervised him that those memos were ideologically driven and that he could not be trusted.
Elena Kagan has never been a judge. She is not a prolific writer. We have not seen her internal memoranda and correspondence from when she was Solicitor General.

And so we see in the L.A. Times yesterday:
Sen. Dianne Feinstein (D-Calif.) called Kagan’s lack of judicial experience “refreshing,” . . .

Wow. Just wow. Meet Dianne Feinstein. Unprincipled partisan hack.

The High Court's four liberals are holding out to overturn Heller.

2010-06-29T09:33:00.002-04:00

Today's WSJ editorial:

Justice Stephen Breyer, joined by Sonia Sotomayor and Ruth Bader Ginsburg, even did a rare turn as a states' rights advocate, noting that incorporation will curtail the ability of states to craft their own gun laws. This problem doesn't seem to bother Justice Breyer or the other liberals when they overturn state laws based on a "right to privacy" that, unlike the Second Amendment, is mentioned nowhere in the text of the Constitution.

All of this suggests that the liberals have decided to bide their time and wait for a fifth vote so they can overturn both Heller and McDonald. This means that the matter of Second Amendment rights is far from settled, and the National Rifle Association and other advocates had better keep their legal guard up. ...

As for Ms. Kagan and gun rights, as a clerk to former Justice Thurgood Marshall, she declared herself "not sympathetic" to a Second Amendment case similar to the issue in Heller. As an aide in the Clinton White House, she advocated aggressive gun control regulations. Despite yesterday's welcome extension of gun rights to the states, the liberal effort to make the Second Amendment a second-rate right is a long way from over.

Democrats, Kagan, and the Second Amendment

2010-06-28T15:49:00.002-04:00

From Roger Pilon:

Today Politico Arena asks:
What are the political implications for Democrats and for the Kagan hearings of today’s Supreme Court gun decision?
My response:

The Supreme Court’s decision today that the Second Amendment applies against the states cannot be helpful to Democrats in the upcoming elections or to Elena Kagan in her confirmation hearings. Most Court-watchers expected the decision to come out as it did, yet the dissent by the Court’s four liberals speaks volumes. How could other rights in the Bill of Rights be good against the states, but not this right? Given the quality of their argument, the conclusion that the Court’s liberals are picking and choosing their rights on political grounds is inescapable.

This last part cannot be stressed enough. There was a left/right consensus for incorporation. The liberal wing of the court completely ignored this consensus out of pure animus towards the right of armed self defense, Constitution be damned. Republican senators would do well to hammer Kagan on this point over and over again.

Dionne: Progressive Judging Means Always Ruling Against Corporations

2010-06-28T12:16:00.003-04:00

E.J. Dionne has a column out today that is completely intellectually void. His argument boils down to: 1) corporations are bad; 2) the Supreme Court should always rule against them; 3) that is true Progressive judging.

One thing oddly missing from Dionne's columns is any discussion of the law. It is all a discussion of which party should win. The people, whatever that even means, are good and corporations, including Exxon!!!, are bad. That should be the end of discussion according to Dionne. No actual discussion of any cases. No critique of any opinions. Just pure identity politics. If this wasn't written by such a prominent progressive columnist, I would have confused it with a satirical take on the progressive judicial philosophy.

There is also a lot of handwringing about corporate influence, which is a bit ironic considering the corporatism being practiced by the current, progressive occupier of the White House. But I will leave that critique for another day.

Gun Decision & NRA Gag Order

2010-06-28T10:46:00.000-04:00

Statement of CFJ Executive Director Curt Levey:

Today’s landmark Supreme Court decision in McDonald v. Chicago, extending gun rights to the state and local level, reminds gun owners of the profound impact Elena Kagan will have on their Second Amendment rights if she’s confirmed. Today’s decision completes the shift of the guns rights battle from the legislatures to the courts, mirroring the seismic shift in the abortion rights battleground following Roe v. Wade. Because of McDonald and District of Columbia v. Heller, the Court’s 2008 decision recognizing the Second Amendment as an individual federal right, the scope and shape of gun restrictions is now in the hands of the courts. As a result, Second Amendment rights hang on the selection of Supreme Court Justices.

The NRA has been somewhat slow to adapt to this shift, understandably so given its long history of success in the legislative arena. Despite the NRA’s concerns about Sonia Sotomayor’s gun rights record – concerns confirmed by her vote today in McDonald – the NRA did not publicly oppose her confirmation last summer until after the release of a letter of opposition signed by 14 members of the NRA board and the heads of five NRA state affiliates. Nonetheless, the NRA’s eventual opposition was key to making gun rights the most prominent and influential issue in the final month of the Sotomayor confirmation fight.

This summer, people have been asking why NRA board members have not spoken out about Kagan’s even worse Second Amendment record. The explanation CFJ has been hearing from board members was confirmed yesterday by Erick Erickson’s reporting at RedState:

“Internal Senate emails confirmed by NRA Board Members show that the National Rifle Association’s management team has explicitly and directly told the NRA’s board they are prohibited from testifying about second amendment issues during the Elena Kagan confirmation hearings. … [and] from coming out against Kagan in their individual capacity.”

The gag order, issued months ago in anticipation of the current Supreme Court vacancy, was a reaction to the NRA’s concern about having its hand forced last summer.

Unlike other leading gun rights groups, including the Second Amendment Foundation and Gun Owners of America, the NRA had been silent on Kagan. But that changed on Friday. While stopping short of opposing Kagan for now, the NRA did issue a statement critical of her. Erickson says the statement came “after the internal Senate email began leaking out.” But whatever the reasons behind it, the statement summarized the reasons gun owners should be concerned about Kagan:

“What we've seen to date shows a hostility towards our Right to Keep and Bear Arms, such as her role in developing the Clinton Administration's 1998 ban on importation of many models of semi-automatic rifles; her note mentioning the NRA and the Ku Klux Klan as ‘bad guy’ organizations; and her comment to Justice Marshall that she was ‘not sympathetic’ to a challenge to Washington, D.C.'s handgun ban.”

The statement’s mention of Kagan’s “involvement in formulating anti-gun policies at the Clinton White House” is particularly significant, since Clinton’s gun policies earned him an ‘F’ rating from the NRA. Other examples of Kagan’s White House work not mentioned in the brief statement include supporting stronger gun-show regulations and trigger lock mandates, lending assistance to municipal lawsuits against gun manufacturers, and plotting ways to get around a Supreme Court decision holding that the feds cannot force state and local law enforcement to conduct background checks on gun buyers.

It remains to be seen whether the NRA will formally oppose Kagan’s confirmation before the Judiciary Committee and full Senate vote on her. I hope so. Having opposed Justice Sotomayor and announced the scoring of her confirmation vote last summer, doing less this summer will be interpreted as NRA acquiescence in Kagan’s confirmation.

I am not unaware of or completely unsympathetic to the political calculations holding the NRA back. However, in light of the NRA’s recent negotiation of a special carve out in the DISCLOSE Act, the controversial campaign finance bill, the NRA needs to be sensitive to putting politics above principle.

To be fair, NRA CEO Wayne LaPierre has a point when he explains the carve out: “If we don't have our speech rights, it would mean the end of the Second Amendment.” But in dealing with the Kagan nomination, LaPierre needs to be equally aware that the shift of a single vote on the Supreme Court would even more surely doom the Second Amendment. Moreover, if the DISCLOSE Act becomes law, the fate of its crackdown on free speech will be decided by the Supreme Court. And in Supreme Court decisions, there are no opportunities to negotiate carve outs.

The NRA can argue that, with the exception of Sotomayor, judicial nominations are simply outside their traditional agenda. But that begs the question of how to adapt to the change wrought by McDonald and Heller. And most importantly, if the NRA can venture beyond its traditional agenda into the First Amendment issues implicated by the DISCLOSE Act, surely it can weigh in on the Second Amendment issue of Elena Kagan’s gun rights record.

The focus should not be on criticizing the NRA for what it hasn’t done about the Kagan nomination so far. In fact, the NRA’s incredible contribution to the preservation of Second Amendment rights and its legendary influence on legislators, particularly moderate Democrats, is precisely the reason why the NRA’s enthusiastic involvement in this nomination is so important. Instead, the focus should be on how the NRA can make a difference in the remaining weeks of the Kagan confirmation process. Specifically, the NRA can make a big difference – putting Kagan’s confirmation in doubt and/or sending a strong message to the White House about nominating anti-gun judges – by formally opposing her confirmation, announcing it will score the confirmation vote, and vigorously lobbying swing senators.

At the very least, vigorous opposition to Kagan would go a long way to repairing the damage done to the NRA’s reputation among conservatives by the DISCLOSE Act carve out.

Martin Ginsburg, justice's husband, dies

2010-06-27T22:03:00.001-04:00

Thoughts and prayers go out to Justice Ginsburg and her family and friends.

Kagan Press Conference

2010-06-26T08:47:00.004-04:00

This Thursday, the Committee for Justice and nine other organizations gathered on the steps of the U.S. Supreme Court to voice their concerns about Supreme Court nominee Elena Kagan. Below are links to videos of two of the participants’ remarks, as well as this summary of the press conference by the Associated Press:

“[C]onservative activists are making it clear they expect Republicans to question Kagan sharply, with some insisting that they move to block a vote to confirm her -- something GOP senators have so far shown little inclination to do.

‘We've seen enough to give us a long list of concerns,’ said Curt Levey of the Committee for Justice, who gathered conservative activists outside the Supreme Court on Thursday to criticize Kagan's positions on topics ranging from gun rights to free speech and affirmative action.

Mario Diaz of Concerned Women for America called Kagan's record one ‘of a liberal political soldier -- not an impartial jurist,’ and said his group was urging senators to vote ‘no.’

Tommy Sears of the Center for Military Readiness said Kagan should be blocked from a confirmation vote based on her position on military recruitment at Harvard Law School.

Kagan's judgment in that episode ‘certainly calls into question what she would do with regard to other military issues and judicial deference with regard to military issues,’ Sears said.”

Videos of remarks by:

Curt Levey, Executive Director, Committee for Justice

William Saunders, Senior VP of Legal Affairs, Americans United for Life