January 30, 2009

Deal Between Specter and Obama?

Quinn Hellyer at Confirm Them expounds on a theory behind Arlen Specter's letter to Obama asking him to renominate up to three of Bush's judicial nominees (here).  Hillyer's speculation:
"So here's how I suspect (this is pure speculation; no inside info at all) this went down: Obama's people and Specter made a deal: Specter stops harassing Holder, and in return he'll get Diamond and Short renominated and confirmed. To put a fig leaf over the deal, Specter's letter would mention Keisler (to placate conservatives) and Glen Conrad as well."
Time will tell.

Thought on Obama's White House Counsel

Orin Kerr posts a thought from a former Bush Administration on the staffing of Obama's White House Counsel's Office at The Volokh Conspiracy.  It notes a peculiarity,
"Second and more puzzling, the new Counsel's Office will include a non-lawyer research director position -- staffed by a former campaign opposition research specialist. Hopefully journalists will press to find out why this position has been created. It could simply be a mechanism for rapid response on judicial nominations, but it could also signal a desire to run political opposition activity out of the legal shop, which would be very unfortunate."
Hopefully Obama will be pressed for an answer on this staffing decision to shed some light on how he plans to navigate the judicial nomination process.

January 29, 2009

Blagojevich Bites the Dust

Goodbye Democrat Governor Rod Blagojevich.
After a four-day trial, the Illinois Senate voted 59-0 to convict him of abuse of power, automatically ousting the second-term Democrat. In a second, identical vote, lawmakers further barred Blagojevich from ever holding public office in the state again.
Mr. Blagojevich responded that such an action was "un-American" because, "You haven't proved a crime, and you can't because it didn't happen ... How can you throw a governor out of office with insufficient and incomplete evidence?" Whether or not it can be proven that he broke the criminal code of Illinois or any Federal anti-corruption laws will be up to the respective state and federal tribunals in legal proceedings to come. But evidence of several abuses of power seemed to be clear enough to oust him from the State's top executive position when not one lawmaker in a majority-Democrat state senate rose in his defense today.
"He failed the test of character. He is beneath the dignity of the state of Illinois. He is no longer worthy to be our governor," said Sen. Matt Murphy, a Republican from suburban Chicago.

Ousting corrupt megalomaniac career politicians is proof that we are governed by a nation of laws, not of powerful men who dictate them. There is no reason to tolerate blatant corruption such as evidence that shows intent to accept consideration for a top political appointment ("The Senate seat is a f---ing valuable thing, you just don't give it away for nothing"). Kudos to the legislature of Illinois for not dragging this on any longer. Rule of Law is the clear winner today.

Specter to Obama: Renominate Bush Judge Picks

Since the election of President Obama, the Committee for Justice and others have called on the President to renominate some of George W. Bush’s unconfirmed judicial nominees, in order to show bipartisanship and match the similar gesture made by Bush in the first year of his presidency. We’re delighted to see that Sen. Arlen Specter, the Judiciary Committee’s ranking member and a man who knows a thing or two about bipartisanship, has put his considerable weight behind the suggestion. In a letter to Obama released today, Sen. Specter names three unconfirmed nominees who deserve “particular” consideration. They are Peter Keisler, Judge Glen Conrad, and Judge Paul Diamond, Bush nominees to the D.C., Fourth, and Third Circuits respectively. The full text of the letter is provided below. For one of our previous e-mails on the subject, see here.

President Barack Obama
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500

Dear President Obama:

Congratulations on your inauguration. Throughout your campaign, you promised change and pledged to strive for bipartisanship in your administration, and you underscored this commitment to bipartisanship in your inaugural address.

I write to respectfully suggest that, as a sign of bipartisanship, you renominate some of President George W. Bush’s circuit court nominees who were not confirmed prior to the adjournment of the 110th Congress. To do so would echo the bipartisanship President Bush demonstrated when he renominated one of President Clinton’s judicial nominees, Judge Roger Gregory, to a vacancy on the U.S. Court of Appeals for the Fourth Circuit.

Several of President Bush’s circuit court nominees had bipartisan support and were not confirmed due to asserted time constraints. I believe these nominees in particular deserve your consideration. Mr. Peter Keisler, nominee to the Court of Appeals for the District of Columbia, had bipartisan support and garnered praise from across the country, including the editorial boards of The L.A. Times and The Washington Post. In addition, Judge Paul Diamond, nominee to the Third Circuit, and Judge Glen Conrad, nominee to the Fourth Circuit, had bipartisan support, including the support of their Democratic home state Senators. All three nominees were rated “well qualified” by the nonpartisan American Bar Association and would be excellent candidates for renomination.

Thank you for your attention to this matter, and I look forward to working with you.

Arlen Specter

Blame Conservatives, Ignore Poor Lawyering

Many people are rejoicing the passage of the "Lilly Ledbetter Fair Pay Act."  It overturns the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co.  Their happiness comes with plenty of vitriol for the conservative justices who apparently committed a great injustice by interpreting the statute the way it was written and not being "sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless."  There is a giant elephant in the room that goes largely unnoticed in this debate:
"In a footnote, the Supreme Court noticed that the plaintiff, Lily Ledbetter, could just as easily have sued under the Equal Pay Act, which, recognizing that it is sometimes difficult to detect pay discrimination, has a much more generous deadline for bringing claims, allowing pay discrimination claims to be brought three years after it occurs. But her stupid lawyer failed even to make such a claim in her appeal."
Decisions like this one are repeatedly used to demonize conservative justices for interpreting the law as it is written instead of importing some whimsical view of justice. But what this case epitomizes is there is often more than meets the eye.   

January 27, 2009

GOP Saving Ammo for Judicial Nominees?

Despite lingering ethical and tax issues the Senate has confirmed both Hillary Clinton to Secretary of State and Timothy Geithner to Secretary of the Treasury.  Hillary Clinton faced conflict of interest issues surrounding foreign donations to her husbands foundation but was confirmed by a 94-2 margin.  Geithner confirmation was put into jeopardy when it was revealed that he had not paid personal employment taxes during his time at the IMF.  Nonetheless, he was confirmed yesterday by the senate by a vote of 60-34.  Both escaped their confirmation hearings having left many questions either unanswered or insufficiently answered. 

It begs the question, why did Republicans refuse to mount a sincere challenge?

Byron York, who has covered the Geithner nomination extensively for National Review was told by key Senate Republican the reason:
"members of the minority party have just so much ammunition, and using it against a cabinet official who serves at the pleasure of the president is not as wise as saving it to use against, say, a judicial nominee seeking a lifetime appointment to the bench."
We hope this is true.  Obama has a chance to pull the judiciary sharply to the left (see here and here) even if he does not greatly change the make up of its highest court.  With Obama enjoying approval ratings in the 60's and the media, along with the Democratic majority, trumpeting any dissenting voice as divisive, the GOP is going to need every bit of political ammunition it can muster to combat Obama's nominees that are seen as activists and out of touch with American values.   

January 24, 2009

A Hint at Obama's Bipartisanship?

Obama has promised a new era of bipartisanship in Washington.  But during yesterday's debate over the upcoming stimulus bill, President Obama responded to Republican criticism by stating matter-of-factly, "I won."  While this is certainly true, we cannot help but wonder if this is the type of bipartisanship we can expect on the issue of judicial nominees.  We previously noted Bush's standard for bipartisanship in judicial nominations here, and we hope that Mr. Obama will follow suit.  His recent behavior provides reason to remain skeptical. 

January 23, 2009

Roe v. Wade and Judicial Activism

Yesterday was the 36th anniversary of Roe v. Wade, and Ed Whelan at National Review quotes from his 2005 testimony in front of the Senate Judiciary Committee.  An excerpt from that testimony:
"Like few other Supreme Court cases in our nation’s history, Roe is not merely patently wrong but also fundamentally hostile to core precepts of American government and citizenship. Roe is a lawless power grab by the Supreme Court, an unconstitutional act of aggression by the Court against the political branches and the American people. Roe prevents all Americans from working together, through an ongoing process of peaceful and vigorous persuasion, to establish and revise the policies on abortion governing our respective states."
With Obama taking office and Democratic majorities in both houses federalism will take another blow with the likely passage of the Freedom of Choice Act.  This bill federalizes the issue of abortion by making Congress the sole decider of abortion restrictions.  FOCA, following the lead of Roe, will undermine the notion expressed by Whelen that,
"Reasonable people of good will with differing values or with varying prudential assessments of the practical effect of protective abortion laws may come to a variety of conclusions on what abortion policy ought to be in the many diverse states of this great nation."
So much for Justice Brandeis' notion that the "States are the laboratories of democracy" I guess.

Gillibrand, Guns & Judges

Statement by CFJ Executive Director Curt Levey on the appointment of Rep. Kristen Gillibrand (D - NY) to the U.S. Senate:

“The Committee for Justice applauds Gov. David Paterson’s appointment of Rep. Kristen Gillibrand to fill the Senate seat vacated by Hillary Clinton. Because she is a Blue Dog Democrat and a strong supporter of Second Amendment rights, we believe she will be an important ally in CFJ’s central mission of ensuring that the men and women appointed to the federal bench respect the rule of law and refrain from judicial activism.

“In the past, President Obama has spoken approvingly of judges who follow their hearts rather than the law – in other words, activist judges. If that’s the type of judges he appoints, then – with only 41 or 42 Republicans in the U.S. Senate – it will be very important to have Democratic senators willing to stand up and say no to those appointments. There is good reason to believe that Kristen Gillibrand will be one of those senators.

“We are encouraged by the fact that Rep. Gillibrand represents a largely rural district and is a member of the Democratic Blue Dog Coalition, a group of relatively conservative House Democrats with a mission of ‘appealing to the mainstream values of the American public.’ She undoubtedly understands that, once you get away from the big cities and the coastal intellectual elite, there is very little support for the ultra-liberal agenda that motivates the advocates of judicial activism. That’s true whether you’re talking about gay marriage, racial preferences, the rights of terrorists, abolishing the death penalty, or banishing religion from the public square.

“And it is especially true when it comes to gun rights. In the wake of the Supreme Court’s 2008 Heller decision striking down the District of Columbia’s handgun ban and empowering Americans to use the courts to protect their Second Amendment rights, gun owners have emerged as perhaps the most powerful constituency against liberal judicial activism. It is a constituency that Kristen Gillibrand understands and embraces. As her website states,
‘Congresswoman Gillibrand grew up in a family of hunters and strongly supports the rights of all hunters and gun owners. She has been an ardent opponent of legislation that will curb the Second Amendment for responsible gun owners and currently has a 100% voting record with the National Rifle Association (NRA).’
“Court decisions over the next several years will be critical to preserving, expanding, and defining the rights of gun owners. The Supreme Court will be called upon to make it clear that individual Second Amendment rights apply in the states as well as in the District of Columbia, and the lower federal courts will be busy determining exactly what gun restrictions Heller allows. But as long as Barack Obama serves as President, the Supreme Court will be just a heartbeat away from reversing Heller and taking away the Second Amendment rights it just recognized.

“With so much at stake, we are confident Kristen Gillibrand won’t sit still if President Obama attempts to install an activist majority on the Supreme Court or to pack the lower federal courts with liberal judicial activists. We hope that President Obama’s encouraging words of moderation and bipartisanship will govern his judicial appointments. But if he disappoints, it is good to know that he’ll have to deal with Senator Gillibrand.”

A Look at the Fourth Circuit

The Wall Street Journal weighs in on the judicial landscape as President Obama begins his first term.  The article hits on many of the same notes discussed in an earlier post here.  

WSJ sets their focus on the Fourth Circuit, where there are currently four vacancies.  The court currently consists of six Republican-appointed judges and five appointed by Democrats.  The math supports Russell Wheeler's observation that, "Under Mr. Obama, the Fourth Circuit really could become a Democratic court."  What makes this particularly troubling is that the Fourth Circuit has been a reliably conservative court in recent memory.  (Judge Harvie Wilkinson III of the Fourth Circuit weighs in today in a WaPo Op-Ed)

 Although the Supreme Court is not likely to shift during Obama's tenure, the numbers appear to be lining up in a way that offers Mr. Obama the opportunity to radically shape the appellate judiciary through the appeals courts, especially the Fourth Circuit.  While the Supreme Court gets most of the attention, the appellate courts have a substantial effect on shaping the law in America.  For example, "From March 2007 through March 2008, for instance, federal appellate courts effectively ended more than 60,000 cases."  

Mr. Obama has left much to speculation regarding the direction he will take with judicial nominees.  His rhetoric on the campaign trail describing his ideal judges was boiler-plate liberal, hands on the scales of justice blather, but his other nominations have been more moderate.  

The worry is that he will use his judicial nominees to placate the left wing of his party who was instrumental in his election.  They have felt slighted over many of his appointments, and the judiciary is a good way to throw them a bone under the radar.  As Arthur Helman notes, "He can do something important for the left wing without it costing him a lot; most people just don't follow judicial nominations that closely."

While the Democratic majorities in both houses make it likely that Obama's nominees will get confrimed, Republicans need to make sure that they do their due diligence  in reviewing nominees and hold the Obama administration to the post-partisan, non-ideological standard they have proclaimed.

January 22, 2009

Holder & Obama Differ on Judges

If confirmed, Attorney General nominee Eric Holder will head a department which plays a huge role in the selection of federal judges, a role matched only by the White House itself. Thus we read with much interest Holder’s responses, submitted yesterday, to written questions from Sen. Arlen Specter concerning the proper role of judges. Based on Mr. Holder’s responses and previous statements by Barack Obama, it appears that Holder does not endorse the type of activist judicial philosophy espoused by Obama.

Consider this written exchange:
Specter: “Do you think that it’s ever proper for judges to indulge their own policy preferences in determining what the law means?”
Holder: “No. Judges should decide cases based on the facts presented and the applicable law.”
We agree, but President Obama thinks differently. He has said that difficult cases
“can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.”
Values, concerns, and broader perspectives – in other words, policy preferences. Plus a dose of empathy for some of the litigants.

But Obama and Holder disagree on the role that should be played by a judge’s empathy for the parties before him. Obama goes on to emphasize that, in the difficult cases, “the critical ingredient is supplied by what is in the judge's heart.” And on another occasion, Obama said that his “criteria” for selecting judges would be
“somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old.”
What about empathy for unborn babies or for poor white kids denied college admission because of affirmative action policies? The point is that it’s not clear that empathy-based judging is anything more than politics in disguise. But give Obama credit. He’s been unusually straight forward and consistent in saying that judges should look to their hearts. In light of that, Specter specifically asked Holder “Do you think that it’s ever proper for judges to indulge their own subjective sense of empathy in determining what the law means?” Here’s Holder’s written response:
“It is important for judges, as for all public servants, to bring to their jobs an ability to understand the life experiences of the people who appear before them, but judges should make their decisions based only on the facts presented and the applicable law.” (emphasis added)
No one can dispute the first part of Holder’s answer. But in the second half, Holder rejects the notion that judges should consider empathy in addition to the facts and law.

Should a judge look to his heart and policy preferences when deciding cases? Holder and Obama appear to sharply disagree. We hope that Holder’s view wins out. But either way, before any judicial nominees are announced, the two men should clarify which of their very different philosophies on judging will govern the evaluation and selection of judicial candidates. They owe it to the nation and to the senators who must decide whether to confirm President Obama’s nominees.

If the Obama Administration plans to appoint judges who are personally liberal but committed to deciding cases based solely on the facts and law, there will be smooth sailing in the Senate for Obama’s nominees. On the other hand, if the nominees will be men and women who look to themselves rather than the law, senators need to get ready for a big fight over judges.

Finally, a Washington Post editorial lamented yesterday that Senate Democrats “at times engaged in unjustified filibusters and gross distortions of some [judicial] nominees' records” during the Bush Administration. The Post specifically called Democrats out for the “flimsy” excuses used to block the nominations of Miguel Estrada and Peter Keisler to the D.C. Circuit, and acknowledged that “[t]he real reason for opposition” to Estrada is that he “was seen as a top contender to become the first Hispanic Supreme Court justice.”

We applaud the Washington Post for seeing through Democrats’ flimsy excuses. But we wish the Post had gone one step further and reminded President Obama that he can remedy the deplorable treatment of Keisler and Estrada by appointing them to the two vacant seats on the D.C. Circuit. If Obama were to follow the tradition set by George W. Bush – who appointed two Clinton nominees to the circuit courts in his first year as president – it would be powerful statement that the new president is sincere about transcending the partisan politics of the past. For more on this possibility, see here.

January 17, 2009

"Terrorists killed my dad"

That is the headline of an Op-Ed published in the
LA Times yesterday by Joseph Conner.  Conner is the son of one of the victims of the FALN terrorists, and he testified against Holder yesterday during Holder's confirmation hearing.  Conner writes:
"At the time of the pardons, Eric H. Holder Jr. was deputy attorney general. In considering his department's recommendation on clemency, he met with supporters of the terrorists but ignored their victims. He pushed staff members to drop their strong opposition to a presidential pardon for the FALN members and alter a report they had prepared for the president recommending against clemency. Today, although two turned down their pardons because they were unwilling to renounce violence, many of the convicted FALN members walk free. And a man who was instrumental in their release may become the highest law enforcer in the land.

Holder said at his confirmation hearing Thursday that he thought Clinton's decision to pardon the FALN members was 'reasonable.' But they were bad people. During their Chicago trial, some of them threatened the life of Judge Thomas McMillen, who was hearing the case. Carmen Valentin, one of those later pardoned by Clinton, told the judge, 'You are lucky that we cannot take you right now,' and she told other officers of the court, You will be walking with canes and wheelchairs. ... Revolutionary justice can be fierce." She also declared war against the United States. Dylcia Pagan, another recipient of Clinton's gift, warned the courtroom: 'All of you, I would advise you to watch your backs.' McMillen was convinced the defendants would continue being terrorists as long as they lived. 'If there was a death penalty,' he said at their sentencing, 'I'd impose the penalty on you without hesitation.'"  

January 15, 2009

Stretching the Constitution

Often lost in the debate over the idea of a "living constitution" is the fact that the Constitution provides a mechanism for it to change: the amendment process.  Linda Whitlock provides a necessary reminder of this fact in an intelligible column today in The Roanoke Times.  In response to a reader who believes the genius of the Constitution "is its elasticity, not its rigidity," Ms. Whitlock correctly responds, 
"The genius of the Constitution ... is not its elasticity, but its provision for being amended by the citizens through the legislative process."
The reason this fact is so often overlooked is that changing the Constitution through the amendment process is often difficult.  As Ms. Whitlock notes,
"Getting the requisite approvals of two-thirds of both houses of Congress and three-fourths of the state legislatures can be a long, arduous and, sometimes, unsuccessful process."
But to those seeking to change the law, particularly the left, this process was too arduous and needed to be sidestepped.   Enter amendment by judicial decree.  For this to work, those seeking to change the law need a sympathetic court.  
"The courts have risen to the occasion. The temptation not only to interpret laws but also, through the avenue of the elastic Constitution, to make them has been too enticing to resist. The courts now treat the Constitution as though it can be stretched to encompass whatever justices think it should."
During the campaign Obama said that he wanted judges "who are sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless,"  which of course means judges willing to stretch the Constitution in order to meet their idea of what it should be.

via NR

Holder & the War on Terror

As the confirmation hearings for Attorney General nominee Eric Holder begin today, we’re willing to overlook Holder’s role, during the Clinton Administration, in both the pardon of international fugitive Marc Rich and the failure to appoint an independent counsel to investigate evidence of fund-raising abuses by VP Al Gore, despite recommendations to the contrary by the Director Louis Freeh and successive heads of DOJ’s campaign task force. We’re even prepared to overlook Holder’s apparently inaccurate 2001 testimony before the Senate Judiciary Committee concerning his role in the Rich pardon. After all, Mr. Holder served as Deputy Attorney General for more than three years, which is long enough to be entitled to a few mistakes of judgment and memory.

What does trouble us and should trouble the American people, because it reflects a pattern likely to be repeated, is Mr. Holders’ central role and the influence of racial politics in the 1999 pardon of sixteen FALN (Armed Forces of Puerto Rican Nationalists) terrorists. Following the Los Angeles Times’s January 9 disclosure of new evidence concerning Holders’ role, it is clear – in the words of the National Review’s Andrew McCarthy – that
“Holder … engineer[ed] the shocking, politically driven pardons of 16 Puerto Rican separatists … responsible for over 130 bombings and the murders of innocent Americans; terrorists who hadn’t even applied for clemency or expressed a modicum of remorse (elementary prerequisites for pardon consideration under Justice Department standards).”
At the urging of Puerto Rican activists and Puerto Rican members of Congress, Holder chose to ignore opposition to the pardons from the FBI, two United States Attorneys, the Federal Bureau of Prisons, the Fraternal Order of Police, and victims of the FALN bombings. In the face of political pressure and racial political correctness, even this chilling warning from an interagency counterterrorism task force was ignored:
“Factors which increase the present threat from these groups [the FALN and Los Macheteros] include … the impending release from prison of members of these groups jailed for prior violence.”
Kowtowing to racial politics is nothing new for politicians. Bt the Attorney General is expected to be the nation’s chief law enforcement official and a key player in the War on Terror, rather than a typical politician. In sum, Mr. Holder’s engineering of the FALN pardons is worrisome precisely because it reflects the ongoing concern that, in a Democratic Administration, political correctness and the politics of appealing to the Democratic base may get in the way of effective prosecution of the War on Terror.

Holder’s direct criticism of the War on Terror only deepens our concern. Thanks to Andy McCarthy for pointing out that Mr. Holder denounced President Bush’s anti-terrorist initiatives as “needlessly abusive and unlawful,” complained that the President “denied the writ of habeas corpus to hundreds of accused enemy combatants,” and concluded that Bush’s initiatives “made us less, rather than more, safe.” Holder, who has called Guantanamo Bay “an international embarrassment,” will be in charge of determining which enemy combatants should be released if he is confirmed as Attorney General. There’s plenty of room for debate about the conduct of the War on Terror, but Mr. Holder seems to have already made up his mind, while ignoring the fact that Bush’s initiatives are largely responsible for preventing another attack on our nation.

January 14, 2009

Heller, Original Interpretation, and Constitutional Constuction

Nelson Lund has recently published a critique of Justice Scalia's opinion in D.C. v. Heller entitled The Second Amendment, Heller, and Originalist Jurisprudence.  He notes in the abstract that,
"In Heller, the lawyers who initiated the litigation won their test case. Justice Scalia and his colleagues, however, flunked their test. This was a near perfect opportunity for the Court to demonstrate that original meaning jurisprudence is not just "living constitutionalism for conservatives," and it would been perfectly feasible to provide that demonstration. Instead, Justice Scalia's majority opinion makes a great show of being committed to the Constitution's original meaning, but fails to carry through on that commitment."
Mr. Lund's critique has sparked an interesting and educational discussion about originalist interpretation and constitutional construction between Randy Barnett at The Volokh Conspiracy and Lawrence Solumn at Legal Theory Blog.  Barnett's follow up here.

January 13, 2009

America's Litigation Culture: Stifling Freedom and Devaluing Personal Responsibility

Over the weekend, the Washington Post published an op-ed column by George Will entitled, "Litigation Nation." This column is based on Philip Howard's Life Without Lawyers: Liberating Americans from Too Much Law. Mr. Will notes a few examples of the absurdities that result from a culture that embraces "the theory that anyone should be able to sue to assert that someone is culpable for even an idiotic action by the plaintiff, such as swallowing a fishing lure."

The article leads with a story of police being called to a Florida school in order to deal with a disorderly student, which resulted in a 5-year-old, 40 pound female student being led away in handcuffs. The reason for the police:
"No official at the Florida school would put a restraining arm around the misbehaving child lest he or she be sued, as a young member of Teach for America was, for $20 million (the school settled for $90,000), because the teacher put a hand on the back of a turbulent seventh-grader to direct him to leave the classroom."
Mr. Will cites other similar atrocities. But lest you read the above quote and think, "What are the odds of that little girl's parents taking the teacher or the school to court?", he provides the necessary context noting:
"A 2004 survey reported that 78 percent of middle and high school teachers have been subjected to legal threats from students bristling with rights. ... [Broward County, Fla] settled 189 playground lawsuits in five years."
At the end of the column, Mr. Will gets to the results that accompany this litigation culture.

"Now legal self-consciousness is stifling the exercise of judgment. Today's entitlement culture inculcates the idea that everyone is entitled to a life without danger, disappointment or aggravation. ...

Law is essential to, but can stifle, freedom. ... The land of the free and the home of the brave has become 'a legal minefield' through which we timidly tiptoe lest we trigger a legal claim. What should be routine daily choices and interactions are fraught with legal risk.

Time was, rights were defensive. They were to prevent government from doing things to you. Today, rights increasingly are offensive weapons wielded to inflict demands on other people, using state power for private aggrandizement."

Mr. Will and Mr. Howard make a valuable and seldom addressed connection between the growing litigation culture and the steadily decreasing value that that culture places on personal responsibility and sound judgment.

With Obama taking office and the Democrats in control of both houses, the trial lawyers will undoubtedly seek to expand this culture and reap the benefits of their political contributions. In fact, it is already happening.

January 09, 2009

Focus on Obama as Supremes Take Race Cases

The U.S. Supreme Court announced today that it will review a lawsuit by New Haven firefighters – one Hispanic and 17 whites – denied exam-based promotions under pressure from the city’s African-American leaders. When we reported on this important racial preferences case last month, we observed that
“In addition to its legal importance, this case [Ricci v. DeStefano] stands out because of its implications for both President-elect Obama and Sonia Sotomayor, one of his most likely Supreme Court picks.”
Noting that “Obama’s election to the nation’s highest office has undercut the ‘uneven playing field’ rationale for racial preferences,” we concluded that
“the American people deserve to know where Obama stands on this case … After all, it is Obama’s judicial and political appointees who will determine whether injustices of the kind seen in New Haven continue and, most importantly for Obama, whether the resentment of white and Asian Americans [that he has acknowledged] builds in the four years before the next presidential election.”
Equally important is the Supreme Court decision today to hear a challenge to the Voting Rights Act’s requirement that eight states – primarily in the South – and parts of another eight states get permission from the feds before modifying their election procedures. The Bush Administration defended the requirement, and the Obama Administration will undoubtedly do the same, but the arguments it makes will tell us a lot about whether Obama really believes that his election will help the nation move beyond race.

The Act’s requirement is premised on the assumption that certain states and localities are more likely to violate the voting rights of minorities. But this 40-plus year old assumption is called into question more than ever by the fact that seven of the 16 states involved voted for Obama in November.

The Washington Post notes that the case, Austin Municipal Utility District v. Mukasey,
“will go before a court that has become increasingly wary of race-based remedies. Chief Justice John G. Roberts Jr. has been among the most skeptical, writing in a 2006 legislative redistricting case that ‘It is a sordid business, this divvying us up by race.’”
With Barack Obama’s approach to preferences still unknown, and both houses of Congress controlled by majorities that are firmly committed to racial preferences, the judiciary branch stands as the only reliable check on the sordid business of divvying up by race.

January 07, 2009

Will Obama Renominate Bush Judge Picks?

Since the election of Barack Obama, we’ve been wondering aloud whether he would meet the standard for bipartisanship in judicial nominations set by George W. Bush in the first year of his Administration. Among Bush’s first batch of appeals court nominees were Barrington Parker, a Clinton nominee 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 last year and quickly confirmed.

On November 29, the Wall Street Journal called for Obama to “renominate some of President Bush's highly qualified judicial picks who have been left to languish for years.” It would be a “good first gesture,” the Journal said, if Obama wants to “end[] the political war over judicial nominations.”

This week, Quin Hillyer of the Examiner joined the voices calling for Obama to make this bipartisan gesture. Hillyer focuses on the person who best meets the Journal’s description – highly qualified and left to languish for years – D.C. Circuit nominee and former acting U.S. Attorney General Peter Keisler. Hillyer argues convincingly that renominating Keisler “more than any other [step], would put substance behind [Obama’s bipartisan] rhetoric.”

As Hillyer points out, “Keisler’s reputation for probity, fairness, and legal brilliance” is recognized across the political spectrum:
“Ted Kennedy publicly praised Keisler’s record and temperament … The liberal editorial boards of The Washington Post and Los Angeles Times singled out Keisler as a nominee who especially merits approval. When the Inspector General issued a report blasting the politicization of the Bush Justice Department, the report repeatedly praised Keisler for resisting the politicization … Harvard Law Dean Elena Kagan [Obama’s choice for Solicitor General] signed a letter supporting [Keisler].”
No wonder “Senate Democrats never even tried to offer substantive reasons for [obstructing Keisler].” Instead, they just ignored Keisler, denying him a vote in the Judiciary Committee throughout the entire 110th Congress, despite rave reviews at his 2006 hearing.

Democrats’ obstruction of Keisler apparently reflected their fear of his Supreme Court potential and their unstated desire to hold a seat open on the all-important D.C. Circuit for the next president to fill. The latter reason rings hollow now that D.C. Circuit Judge Raymond Randolph has taken “senior” status, opening up a second seat on the circuit. As Hillyer notes,
“Randolph was an appointee of the first President Bush, so Keisler would be filling what already was a ‘Republican seat,’ rather than altering the balance of power . . . Another seat remains open for a Democratic nominee.”
Meeting the Bush Standard for bipartisanship in judicial nominations is not only the right thing to do; it’s in Obama’s best interests. After two years of criticizing President Bush for being too partisan, it’s unlikely that Obama wants to be seen as less bipartisan on judges than his predecessor. Moreover, writes Hillyer,
“Republicans - justly furious that Senate Democrats never reciprocated Bush’s goodwill on the Gregory nomination - would be much more likely to cooperate with Obama if the new president makes a similar gesture with Keisler.”
In particular, Arlen Specter, the ranking Republican senator on the Judiciary Committee, would appreciate the gesture. Hillyer notes that Sen. Specter has touted Keisler’s nomination, “calling him a ‘stellar nominee’ of ‘deep integrity.’ As a Senate swing vote, Specter might be especially worth cultivating by Obama.”

Assuming Obama wants to match his predecessor’s numbers, he’ll need to chose a second Bush nominee – in addition to Keisler – for the circuit courts. Rod Rosenstein, U.S. Attorney in Maryland and a Bush nominee for the vacancy-plagued Fourth Circuit, would be the perfect pick. The Washington Post supports his nomination and Senate Democrats and their allies haven’t found a bad thing to say about him. Maryland’s Democratic senators blocked his consideration by the Judiciary Committee, but the best they could come up with, to quote the Post, is the argument that “Mr. Rosenstein is doing such a good job as U.S. attorney that he should be kept in that post rather than moved to the court.”

What kind of lawyers is Obama appointing?

Here is our new assistant attorney general in the Office of Legal Counsel. This woman is a constitutional law professor at my law school, also having taught courses like "Reproduction Rights and the Constitution" and "Seperation of Powers and Sexuality". Her extreme positions against holding terrorists at Guantanamo as well as promotion of abortion rights and gay marriage are not a secret. Her extreme kind of feminist and socialist ideology is enough to make Ruth Bader Ginsberg look like Margaret Thatcher.

She serves on the national board of the American Constitution Society for Law and Policy and as co-chair of the ACS Issue Group on Separation of Powers and Federalism.

Indiana University Maurer School of Law in Bloomington is full of many talented and accomplished professors, but the president elect has picked the most radical of them all. I do not find this surprising, but frankly saddening. If it wasn't apparent already, appointments like this one prove that Obama prefers to hear the liberal judicial activist view of the Constitution.