May 31, 2009

Republicans Should Employ the Democrat's Judicial Standard

Lots of debate has been swirling around what standard Republicans should use to judge SCOTUS nominee Sotomayor.  Paul Mirengoff suggests using the standard employed by the Democrats.

"I've argued many times that Republicans must apply whatever standard the Democrats use when a Republican president makes a Supreme Court nomination. For if the two political parties don't employ the same standard, one of them will have an unearned advantage when it comes to what is arguably our most important institution.

The standard used by Democrats (including President Obama before he was president) is that it's appropriate to vote against a nominee based on nothing more than pure political disagreement. It was on this basis that 40 of 44 Democrats voted against Justice Alito. So that's the standard Republicans should adhere to now. ...

The deference regime crumbled fairly recently when Democrats came to rely so heavily on the Supreme Court to bring about changes they could not enact through the normal political process. With the stakes thus raised, the Democrats felt they needed more of a say even when they didn't control the executive branch.

There is, in fact, a strong argument that, with the Supreme Court as influential as it is now, and with Justices now vetted to the point that they can reasonably be expected to adhere to the philosophy of the president who appoints them, Congress should have a major say in the selection of Justices. Such a say implies the prerogative to vote down nominees based solely on considerations of political ideology."

A good representation of this standard in practice is then Sen. Obama's justification for voting against Justice Roberts and Alito.  VDH sums it up:

"[Obama] simply confessed two things: one, the two nominees were qualified; two, their politics made them too unsympathetic to his own political agenda, so they should be rejected."

Although Republicans should be more principled than then Sen. Obama, now President Obama has no reason to object to Republicans voting against Sotomayor based on her politics.  They would only be following his standard.

May 29, 2009

The Sotomayor Rules

Interesting article in the Wall Street Journal by Kimberley A. Strassel:

She points out that in the past, President Obama and his democratic colleagues have treated judicial nominees in the same way that they are now cautioning Republicans to avoid. She also argues that the GOP should use this nomination as a platform for a debate about the dangers of activist judges.

May 27, 2009

Using Sotomayor to Define Obama

The Democrats have the numbers to make a Sotomayor confirmation all but inevitable, but Ed Morrissey picks up on another opportunity that her nomination affords the GOP.
"The Republicans have an opportunity with Sotomayor that doesn’t involve knocking her off the court.  They have an opportunity to use the hearings to show Sotomayor as a routine appellate jurist with a spotty record who got elevated to this position as an act of political hackery by a President who couldn’t care less about his responsibilities to find the best and brightest for the job.  Like many of Obama’s other appointments, it demonstrates a lack of executive talent and intellectual curiosity on his part.  This appointment makes an argument for more Republicans in the Senate after the midterms, if for no other reason than to force Obama to start putting a little effort in making his nominations."
While the merits of his point can be argued, it should show the GOP that, regardless of their feelings on the potential outcome, they need to thoroughly vet Sotomayor.  From the looks of it they need all the reasons they can get.

Guns, Intellect & Judgment are Key Sotomayor Issues

The Committee for Justice has received a lot of queries about President Obama’s nomination of Sonia Sotomayor to the Supreme Court. Here are the most frequent questions, along with the answers of CFJ Executive Director Curt Levey.

Q: What is your reaction to the President’s choice?

Having told colleagues that I thought President Obama was too smart to pick someone with as much baggage as Sonia Sotomayor, I was surprised to learn of her nomination. Many other people were surprised as well, given both the widespread expectation that Obama would choose an intellectual heavyweight and Obama’s own recent statement that he would not make gender or race the major factors in his selection. Liberal law professor Jonathan Turley summed it up well on MSNBC yesterday, expressing bewilderment that Obama chose Sotomayor when heavyweights like “[Seventh Circuit Judge] Diane Wood would have met all his criteria.”

The only plausible explanation for Sotomayor’s selection is that the President was boxed in by demands from Hispanic and women’s groups that he pick one of their own. What else could explain his choice of a nominee who presents such a big target for conservatives and so clearly forces red state Democratic senators to choose between the values of their constituents and those of the nominee? Among the more obvious sore points for moderate Democrats are Sotomayor’s controversial rulings on Second Amendment rights (Maloney v. Cuomo), property rights (Didden v. Village of Port Chester), and racial preferences (Ricci v. DeStefano) – all issues that President Obama would love to avoid. With gay marriage sure to be a big issue no matter who he nominated, it is hard to believe that Obama would have chosen to focus attention on three more issues that cut the GOP’s way unless he felt backed into a corner.

Obama’s choice of one of the few federal judges with a bad record on gun rights is particularly perplexing. Earlier this year, Sotomayor and two of her Second Circuit colleagues ruled that Americans have no individual Second Amendment rights in the face of state or local regulation of firearms – that is, unless they happen to live in the District of Columbia. Even the liberal Ninth Circuit ruled the other way. Now every red and purple state Democratic senator who considers voting for Sotomayor will be forced to explain to his constituents why he’s supporting a nominee who thinks those constituents don’t have Second Amendment rights. Because they can send red state Democrats running for cover, gun owners are the one interest group that could completely change the political equation on judicial nominations if they’re drawn into the debate. Obama’s selection of Sotomayor makes that virtually certain.

As Ken Blackwell said yesterday,
“President Obama has nominated a radically anti-Second Amendment judge to be our newest Supreme Court justice. There are a number of pro-Second Amendment Democratic senators from deeply red states, including Mark Begich from Alaska, Jon Tester and Max Baucus from Montana, Ben Nelson from Nebraska, Byron Dorgan and Kent Conrad from North Dakota, and Tim Johnson from South Dakota. These senators will jeopardize their seats if they vote to support an anti-gun radical for the Supreme Court. … [N]ever underestimate the political power of American gun owners.”
Until yesterday, I held out hope that President Obama would nominate a moderate liberal to the Supreme Court. Perhaps it was naive to think that Obama would deviate from his pattern of speaking from the center but governing from the left. The bright side of his choice is that ensures a high-profile Supreme Court confirmation battle – the first over a Democratic nominee in many decades – thus providing Americans with the long-awaited opportunity for a national debate on the wisdom of judicial activism.

Q: Will Republican senators be afraid to oppose Sotomayor for fear of alienating Hispanics?

I don’t think so. Should Democratic senators or their allies on the Left accuse Sotomayor’s critics of being anti-Hispanic, the accusers can be made to look foolish simply by reminding them that they vigorously opposed and successfully filibustered George W. Bush’s nomination of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit. Democratic Judiciary Committee memos revealed that opposition to Estrada was based on concern that he would eventually become the first Hispanic Supreme Court Justice. And keep in mind that Estrada’s personal story is at least as compelling as Sotomayor’s. As a teenager, he came to the United States from Honduras speaking very little English.

Q: Is there a chance of stopping the confirmation of Sotomayor?

In assessing the widely mentioned potential nominees over the last few weeks, I concluded that there were only two whose confirmation would be in doubt should they be nominated. One was Sonia Sotomayor. She clearly fails Democratic Sen. Ben Nelson’s “will they be an activist or not" test, but that’s not why I reached my conclusion. Sadly, even being a wild-eyed judicial activist is probably not enough, by itself, to stop a Supreme Court nominee given the large Democratic majority in the Senate. But as I learned during the Bush years, the best predictor of whether a controversial nominee can be stopped is whether the case against her is based on more than just her legal analysis. In Sotomayor’s case, there is quite a bit more.

First, there are the questions about Sotomayor’s temperament and intellect. Liberal law professor, author and Supreme Court expert Jeffrey Rosen wrote earlier this month in the New Republic that
“Over the past few weeks, I've been talking to a range of people who have worked with [Sotomayor], nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats … but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices.”
Jonathan Turley, an equally liberal professor of law at George Washington University, reviewed Sotomayor’s opinions and concluded
“[Her opinions] are notable in one thing, in that it’s a lack of depth. There’s nothing particularly profound in her past decisions. … You can’t say she’s a natural choice for the Supreme Court.” (MSNBC, May 26, 2009)
In 2005, the last time a Supreme Court nominee was viewed as having less than a superstar intellect, the result was a withdrawal of her nomination before Judiciary Committee hearings could get under way. The fact that the President’s party had 55 seats in the Senate at the time was of no help to Harriet Miers.

Second, there are the intemperate statements Sotomayor has made. In 2005, Sotomayor made it clear that she wants judges to be policy makers rather than neutral interpreters of the law, despite knowing that it’s wrong. Speaking at Duke University, she said
“[The] Court of appeals is where policy is made. I know this is on tape and I should never say that because we don’t make law I know. [Sotomayor and the audience laugh]”
Speaking at the University of California at Berkeley in 2001, Judge Sotomayor made it equally clear that she believes white males judges leave something to be desired:
"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life."
Imagine if Supreme Court nominees John Roberts or Samuel Alito had said the reverse. In any case, Sotomayor’s opinion of white males should surprise no one given her later ruling in Ricci v. DeStefano that the results of promotion exams for New Haven firefighters – expertly designed to eliminate the possibility of racial bias – could be thrown out because white males did too well.

Third, the contempt for the rule of law revealed by Sotomayor’s remarks at Duke University were on display again in the Ricci case, this time calling her judicial ethics into question. An excellent piece by National Journal columnist and former New York Times Supreme Court reporter Stuart Taylor tells you all you need to know. Taylor explains that Sotomayor and her two 2nd Circuit colleagues engaged
“in a process so peculiar as to fan suspicions that some or all of the judges were embarrassed by the ugliness of the actions that they were blessing and were trying to sweep the case quietly under the rug, perhaps to avoid Supreme Court review or public criticism, or both. … The three-judge panel initially deep-sixed the firefighters’ appeal in a cursory, unpublished order that disclosed virtually nothing about the nature of the ideologically explosive case.”
That the Supreme Court will issue its decision in Ricci next month – in the middle of her confirmation battle – is bad news for Sotomayor, because it will serve to increase the focus of senators and the media on the case. Worse yet for Sotomayor, the Court will almost surely reverse her ruling in the case, while perhaps scolding her and her two colleagues.

In sum, Sotomayor’s questionable intellect, temperament, ethics, and judgment mean that much more than just her legal analysis is in doubt. Based on past experience, that ensures that the confirmation process will be a bumpy one for the President’s nominee.

May 26, 2009

The Collision of Two Great American Stories

That is how Charles Krauthammer frames the Sotomayor nomination.  The two stories are hers and Frank Ricci's.  Here's the video.

Joe Biden on Clarence Thomas

Just a friendly reminder of the left's prior attitude toward identity politics before the Sotomayor fight gets underway.  Courtesy of New Majority, here is Biden on Justice Thomas:
 "I think that the only reason Clarence Thomas is on the Court is because he is black. I don't believe he could have won had he been white. And the reason is, I think it was a cynical ploy by President Bush."
Surely Sotomayor's status as a Latino and a Women had nothing to do with her pick? Right? Right?

Additionally, Curt previously noted the Democrat's reaction to Bush nominee Miguel Estrada:
"So please respect those who choose to oppose the President’s Supreme Court nominee by refraining from empty “party of NO’ rhetoric and name calling. For example, before you call anyone a racist, consider the leaked Democratic Judiciary Committee memos that revealed that opposition to D.C. Circuit nominee Miguel Estrada was based on fear that he would eventually become the first Hispanic Supreme Court Justice."

May 21, 2009

Reason Symposium: Replacing Justice Souter

Reason Magazine has posted an online symposium on replacing Justice Souter. The symposium's libertarian panelists include: Radley Balko, Alan Gura, Wendy Kaminer, Manuel Klausner, Judge Andrew Napolitano, Walter Olson, Roger Pilon, Glenn Reynolds, Damon W. Root, Ilya Shapiro, Harvey Silverglate, Ilya Somin, and Jacob Sullum. The panalists were each asked the following four questions:
Who should Barack Obama nominate for the Supreme Court and why?

Who will Obama nominate and why?

Obama says that his ideal Supreme Court justice would have the "empathy" to identify with society's downtrodden. Do you agree with his criteria?

What issue(s) will dominate the court over the next three years and why?
Interesting to get a bit of a different take from the right on the Souter replacement.

May 19, 2009

Obama's Frontrunners

The Judicial Confirmation Network has a new website up, which makes its debut with three videos on likely Obama picks Sotomayor, Kagan, and Wood.

4 Factors Acting to Moderate Obama Nominee

While I think Obama wants to appoint a far-left idealogue, I believe there are four factors acting to moderate his pick (or at least pushing him to seek the appearance of moderatism).

1. The Stalled Dawn Johnson Confirmation.  The fact that the Dawn Johnson has had so much trouble getting confirmed should have signaled to the Obama administration that, despite a healthy majority in the Senate, he does not have a rubber stamp on his nominees.

2.  The 2012 Election.  By the time the 2012 election rolls around whomever Obama picks will have developed a judicial record.  Should Obama's pick join a particularly egregious decision, it could haunt him in the election.  

3.  Recent Polling.  I have highlighted this here.  The Boston Globe has more.

4.  Obama's Expansive Agenda.  Obama is proposing drastic reforms on Health Care, Guantanamo, Immigration and Cap and Trade.  It is hard to imagine him getting these accomplished if he faces a nasty, drawn-out confirmation process.

May 18, 2009

Is Granholm Headed to High Court Despite Scandals?

CFJ has learned from a reliable source that Michigan Gov. Jennifer Granholm, reportedly on President Obama’s Supreme Court short list, boarded a flight from Detroit to Washington, DC last night. If Granholm is coming to DC for an announcement of her nomination to the Court, we’ll know as soon as this morning. If she’s coming to DC to interview for the job, it serves as confirmation that she is on the short list. In either case, it’s worth taking a look at her record, including the scandals that have plagued her.

Since being elected governor in 2002, Granholm has most often been criticized for presiding over a state economy that has been one of the worst in the nation for several years, long before the collapse of the national economy and auto industry. Her solution, the biggest tax hike in a generation, has also come under fire. In 2007, Granholm pressured the legislature to approve the hike by shutting down the state government. Nonetheless, it unclear whether Granholm’s economic mismanagement would be a major issue in a confirmation hearing.

More likely to be issues are her support of gay marriage and her veto of state legislation banning partial-birth abortion. The language of the bill she vetoed mirrored the federal ban on partial-birth abortion, which was upheld by the U.S. Supreme Court.

Granholm has never been a judge. Although some doubts about her suitability for the High Court are raised by her lack of scholarly legal writing, that may actually work in her favor by giving critics less material with which to evaluate her judicial reasoning.

In all likelihood, the biggest obstacles to Granholm’s confirmation will be her tax problems and other scandals. Last year, WILX, the NBC affiliate in Michigan’s capital, reported that the IRS “has placed a federal tax lien on [Granholm’s 2002 inaugural] committee to the tune of $19,535 in unpaid taxes that date back to 2003.” The Detroit Free Press (3/7/08) confirmed the report and also mentioned an “$800 lien placed against the Wayne County home of Granholm and her husband in 2006 for failing to file unemployment insurance reports on their nanny.” Given the tax problems that have plagued several Obama nominees – including Timothy Geithner, Kathleen Sebelius, and Tom Daschle – and the nanny problems that derailed Cabinet nominees in past administrations, taxes would seem to be Granholm’s number one problem.

Close behind on the trouble meter are scandals involving Granholm’s tenure as Corporation Counsel for Wayne County, Michigan. In 2002, Granholm came under fire after firms owned by her husband, Daniel Mulhern, secured contracts from Wayne County shortly after Granholm’s tenure as county counsel ended. “Five of the agreements were no-bid contracts and the sixth was awarded through a process in which Mulhern's firm submitted the highest bid but won the contract anyway,” reports the Macom Daily. The other bids ranged in price from half to less than a quarter of Mulhern’s bid. The Daily reports that the 4-member team scoring the bids included Granholm's campaign manager and another Granholm campaign contributor.

In a related charge, Granholm came under criticism for failing to use her authority as corporation counsel to investigate an “apparent pattern of cronyism and no-bid contracts [in Wayne County that] prompted scrutiny from the FBI and state and county auditors.” (Detroit Free Press 1/29/02)

It’s too early to tell, but Congressman John Conyers’s (D – Mich.) withdrawal of his support for Granholm’s nomination to the Supreme Court – at a White House meeting this past Friday – might also be a sign of trouble, if not another scandal. Conyers cited “a letter [written by Granholm] telling us some U.S. attorney has done a good job when everyone in the state knows that he hasn’t.” The details aren’t clear.

May 14, 2009

Video: Curt Levey on 'The News Hour' With Jim Lehrer

Here is the link.

Public Wants SCOTUS Nomination Based on Experience Not Minority Status

As a followup to the post below comes a Fox News report (based on this poll) that shows the public favors picking a nominee based on experience.

"The latest FOX News poll shows nearly half of voters nationwide — 45 percent — think judicial experience should be the "single most important factor" in picking the next justice. Five percent say being a woman should be the single most important factor, 4 percent say being a minority and 4 percent say being a homosexual. About 1 in 10 people (12 percent) think sharing Barack Obama's views on key issues should be the single most important quality.

On the flip side, large majorities think it shouldn't matter whether the nominee is a woman (75 percent), a minority (75 percent) or a homosexual (66 percent). Far fewer, though still a large 47 percent minority, think it should not matter whether the nominee shares Obama's views."

This is further evidence that the public is not interested in turning the nomination process into some kind of grievance settlement with a particular minority group. They don't particularly care what minority group the nominee comes from or that it comes from one at all so long as that nominee is experienced and highly qualified.

The poll also has an interesting breakdown that further shows that Obama's view on judges is out of step with a majority of the public.

The trouble that Obama has run into in getting Dawn Johnson confirmed reinforces the poll data shown above. It should serve as a warning to the Obama administration as the confirmation process goes forward.

May 13, 2009

Public Doesn't Share Emphasis on Supreme Court Diversity

CQ's Legal Beat is reporting on a recent Gallop Poll showing the public is far less concerned with identity politics in a SCOTUS nominee than those inside the beltway.

Here are the results:

As I discussed here, most of the beltway talk is about what minority group the nominee should come from, but it appears that the public is far more concerned with competence than identity politics.  Kudos to them.

Sotomayor by the Numbers

Eric Posner takes a look at Justice Sotomayor using data to evaluate her productivity, opinion quality, and independence.  The post is worth a read in its entirety, but for brevity's sake, I will just post his conclusion.
One can, however, make some rough judgments based on the disaggregated rankings. The bottom line is that Judge Sotomayor is about average, or maybe a bit below average, for a federal appellate judge. These results are far from conclusive, but one might think that put the burden on Judge Sotomayor’s defenders to come forward with stronger reasons for her nomination than they have so far. Judge Wood is stronger—I would say that she is impressive, but others might weight the factors differently.

Sessions Sets Course for GOP

Jeff Sessions, ranking Republican on the Judiciary, laid out his plan for addressing Obama's judicial nominees in today's Washington Post.
"If President Obama nominates to the Supreme Court a highly qualified individual with a distinguished record that demonstrates judicial restraint, integrity and a commitment to the rule of law, his nominee will be welcomed in the Senate and by the American people.

But if the president nominates an individual who will allow personal preferences and political views to corrupt his or her decision making, he will put before the public a central question: Are we willing to trade America's heritage of a fair and neutral judiciary -- anchored in the rule of written law that applies equally to all people -- for a high court composed of robed politicians who apply the law differently based on their personal feelings toward a particular person or issue?

The Republicans' role in the Senate's exercise of its constitutional power to advise and consent will be to see that fair and rigorous hearings determine whether the president has selected a nominee who respects the Constitution or one who intends to rewrite it. The consequences of this question cannot be overstated. Only five justices are needed to declare the meaning of the Constitution, thereby potentially dictating huge changes to our nation's economy, culture and law."
Senator Sessions went on to lay out four characteristics that a potential nominee should possess: commitment to the law, integrity, legal expertise and judicial temperament.  If the GOP sticks with these issues then they can make a compelling case to the American people should Obama appoint a far-left idealogue a la Dawn Johnson.  

Supreme Court Pick Shadowed by Reid’s Admission

Statement by CFJ Executive Director Curt Levey:

“Senate Majority Leader Harry Reid admitted yesterday that he doesn’t have the 60 votes necessary to confirm Dawn Johnsen as head of the Justice Department’s Office of Legal Counsel, because at least a few Democrats will vote against her (see Roll Call article). That should give President Obama pause as he considers his first Supreme Court nomination – all the more so because a President’s selection of judicial nominees is given less deference by the Senate than his choice of Executive Branch nominees like Johnsen. Dawn Johnsen’s troubled nomination is emblematic of at least three obstacles that Obama’s High Court nominee will encounter if she is as unabashedly supportive of judicial activism and liberal causes as Johnsen (see here for examples of her extreme views).

“First, the key to confirmation of President Obama’s Supreme Court nominees – now and in the future – is red and purple state Democrats like Sen. Ben Nelson (D-Neb.), who is “very concerned” about Johnsen’s nomination. Having 59 or 60 Democrats in the Senate does not mean Obama has a free hand in choosing the next High Court Justice.

“Second, the surest way for Obama to lose the vote of a red or purple state Democrat is to nominate someone whose values are decidedly to the left of those of the senator’s constituents. For example, Ben Nelson has pointed to Johnsen’s work as a pro-abortion activist. A Supreme Court nominee who believes that partial birth abortion and gay marriage are constitutional rights, but that individual gun ownership and freedom from discrimination regardless of race aren’t, is unlikely to survive the confirmation process.

“Third, senators who oppose the President’s High Court nominee can succeed merely by ensuring that the nominee gets a thorough and thoughtful examination, rather than being rushed through the Senate before the August recess. Once the nominee’s record and views are fully aired, each and every Democratic senator will decide if they can defend the nominee before the folks back home. If Sen. Reid still has the votes for confirmation after the senators face their constituents in August, no one can complain that the process wasn’t fair.”

May 10, 2009

A Picture Is Worth a Thousand Words

Since Souter announced his retirement there has been a lot of ink spilled on "empathy" and Obama's view on judges.  Award winning editorial cartoonist Michael Ramirez sums it up nicely. 


May 07, 2009

Proper Experience for Supreme Court

Orin Kerr posts his ideal experience for a potential Supreme Court justice.  It is sort of tongue-in-cheek, but it shines a light on the immense scope of Supreme Court review.  It also illustrates the difficulty in evaluating any one nominee's experience.   Here is a taste:
"The candidate should then have considerable practice experience. In particular, the candidate should spend at least 5 years at a large law firm, followed by 5 years as a solo practitioner. That way she'll really understand legal practice. But that practice would be mostly civil law, and Supreme Court Justices also deal a lot with criminal law. The candidate should therefore get experience as a state prosecutor and then experience as a federal prosecutor. After that, the candidate should obtain experience in criminal defense, by spending a few years as public defender in the state system and a few years as a public defender in the federal system."

Diversity That Matters

There have been calls for Obama to appoint a gay justice, woman justice, minority justice, west coast justice, non-Harvard justice, or a non-Catholic justice just to name a few.  I haven't really covered these because it is so discouraging to think that is what the nomination process has become about.  But Ann Aldrich, U.S. district judge for the Northern District of Ohio, and her law clerks have an interesting Op-Ed in todays New York Times calling for Obama to nominate someone with trial experience as a federal district judge.

"Why is this an issue? Most Supreme Court cases are initiated in district courts, and many end up back there when they are remanded for proceedings that are consistent with the high court’s ruling.

While the court’s opinions affect the day-to-day operations and decisions of the district courts, many of the justices lack the practical experience that is necessary for providing district courts with clear and workable directives. ... 

The nomination of a district court judge would bring much practical knowledge and understanding to the Supreme Court when providing answers and instructions to the lower courts. After a 50-year absence of district court judges on the high court, the president would do well to replace Justice Souter with a young and promising nominee with experience on the federal district court bench — this judge excluded."

Hopefully Obama is considering factors such as this instead of focusing solely on the laundry list of irrelevant factors listed above.

Sotomayor Hopes Race Matters in Judging

"I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life." -- S. Sotomayor, October 2001

I really don't even know where to start with this quote.  Besides the fact that it is just nonsense, why would she even hope that it is true in the first place?  Because she is Latina?  Because she thinks that white guys are not good judges?  Maybe it is quotes like this that led people to question her intellect.  However, this is a perfect representation of the liberal mindset.  The individual doesn't matter.  What matters is whether the individual belongs to a class that can be exploited for political gain.

Think about this in conjunction with the Democratic party attack on Jeff Sessions (that he is a racist). and then ask yourself what would happen if a Republican judicial nominee had said, "I would hope that a wise white man with the richness of his experience would more often than not reach a better conclusion than a [insert aggrieved minority class here] who hasn’t lived that life"?  It is safe to say the left would be outrageously outraged, as they should be.  But it is no less ridiculous than Sotomayor's quote, which will receive zero outrage from the left.  In fact, they probably agree.

Update:  In thinking more about this, I began to wonder, putting aside whether it affects one's ability to be a good judge, why one experience is necessarily 'richer' than another.  Is it necessarily a richer experience to come from poverty than middle or upper class?  Or is it necessarily a richer experience to be a minority?  Sotomayor seems to think so, and Obama's quotes on judges would imply that he agrees as well.  I think it is ingrained in us to believe this is so, but I am not so sure that it is true.  I am even more skeptical that a rich experience necessarily makes one a better judge.  This being said, I think this 'rich experience' narrative is going to be vital to Obama in getting a justice confirmed because the public disagrees with his view on judges.

May 05, 2009

The Trouble With 'Empathy'

President Obama has stated that he will appoint a nominee who doesn't merely take into account the law but who has 'empathy' for certain classes of people, namely homosexuals and minorities.  The problem with empathy is which side to be empathetic towards, which is why so many have called Obama's use of the word 'empathy' as a code for liberal results.  Roger Cohen shows this difficulty in relation to the recently argued case of Ricci v. Destafano.  

"[Ricci] is also the lead plaintiff in a case recently argued before the Supreme Court. It was Ricci's misfortune to take -- and pass -- the New Haven, Conn., fire department's exam for promotion to lieutenant and captain, and then have the job denied him because he is white. Others will argue -- fatuously and, when they are before St. Peter, with heads bowed in shame -- that race had nothing to do with what happened to Ricci, but the fact remains that had he been black, his uniform would already sport a lieutenant's bar.

It is also Ricci's misfortune to be dyslexic. This means that he had to study extra hard and extra long for the exam, up to 13 hours a day. He gave up a second job and paid an acquaintance more than $1,000 to read the suggested textbooks onto audiotape. In the end, Ricci's effort paid off. Among 77 candidates for eight vacancies, he had the sixth-highest score.

Alas, none of those who qualified were black. This is a pity, but not really Ricci's fault. In his 11 years as a firefighter, nothing in the record suggests he had done anything to retard the progress of blacks or Hispanics, so it is not clear why he should be denied promotion. The answer, as we all know, is that the individual counts for naught in such matters -- it is the group that is paramount."

Who deserves a judges 'empathy'?  The dyslexic fire fighter who studied 13 hours a day to earn one of the top grades?  The black fire fighters who, despite a race neutral exam, did not earn a promotion but who were once grossly discriminated against?   The answer should be neither, but unfortunately our President doesn't see it that way and neither will whomever he nominates.

May 04, 2009

SCOTUS Nominee by Weeks End

Seems pretty quick to me.

"After talking to President Barack Obama on the phone today, Republican Sen. Orrin Hatch says he believes the White House will move swiftly on its Supreme Court nominee, perhaps making an announcement by the end of this week. 

Obama made no timing commitments to the Utah Republican, but the senator, who has been in the middle of several pitched Supreme Court battles, said: “I’d be surprised if it went beyond this week. ... I would think by the end of this week or over the weekend, he’ll nominate somebody. I’m sure they’ve discussed this internally, back and forth for months now.”

White House spokesman Ben LaBolt declined to comment on the president's timeline, but a pick doesn't appear to be imminent."

Sessions to Take Over Top GOP Spot on Judiciary

The Hill is reporting that Sen. Jeff Sessions (R-AL) will replace Arlen Specter as the ranking Republican on the Senate Judiciary Committee.

Is Sotomayor Smart Enough?

The New Republic is running a series on the strengths and weaknesses of potential Obama SCOTUS nominees.  The first is on Sonia Sotomayor, a judge on the Second Circuit and widely predicted favorite to replace Justice Souter.  It is well worth a read, and it pretty well lays out the pros and cons of her personality and temperament.  I want to highlight a comment from one of her supporters that I find particularly noteworthy.
"She's a fine Second Circuit judge--maybe not the smartest ever, but how often are Supreme Court nominees the smartest ever?"
This fits into one of the consistent concerns that Rosen found in researching the article: Sotomayor's intellectual inferiority.

May 03, 2009

Video: Citizens United v. FEC

As a follow up to JSK's post "Obama Administration Thinks it’s Acceptable to Ban Books about Politicians – Depending on Who Pays for Them," the Cato Institute has produced an excellent video exploring the case, the First Amendment and campaign finance reform.

Judge Sotomayor: "The Court is Where Policy is Made"

Obama Nominees and the Second Amendment

Despite professing the belief that the Second Amendment confers an individual right to bear arms, Obama has a long trail of hostility to gun ownership.  But what of his potential nominees to the Court?  Dave Kopel explored Obama's previous record and reviewed a few likely nominees, including Sonya Sotomayor, for the NRA last October.
Sonia Sotomayor is a judge on the federal Second Circuit Court of Appeals, which covers New York state, Connecticut and Vermont. According to Sotomayor, “the right to possess a gun is clearly not a fundamental right.” (U.S. v. Sanchez-Villar, 2004).
In summing up potential nominees Kopel wrote:
In an Obama administration, while judicial appointees, cabinet officers and the president work to destroy your gun rights, they will make sure to tell you how much they respect the Second Amendment.
With Heller having been recently decided, gun rights may play a more significant role in the confirmation of judges than it ever has before.  It is unlikely that Obama will nominate someone who properly respects the Second Amendment and the individual right it confers, but that won't stop them from trying to convince the country otherwise.  There are many blue-dog and red-state Democrats that support the right to gun ownership.  How those Democrats who support gun ownership react to such an Obama nominee remains to be seen.  I trust their constituents will let them know how they feel about the issue.

Obama on Judges: Being Qualified is Not Enough

As soon as Souter's retirement leaked, Drudge had a headline reminding everyone that Obama had voted against both Justice Roberts and Alito, threatening to filibuster the latter.  Obama often talks of bipartisanship but on judges he was one of the most partisan members of the Senate (only two voted against Roberts).  What does this mean now that Obama is in the position to nominate judges?  Victor David Hanson raises some interesting points in this regard.

"Given the fact that Barack Obama voted against both Justices Alito and Roberts, (and wanted to filibuster Alito) would he object should Republicans en masse simply say no to his new liberal Supreme Court judicial nominee? As I recall Obama’s comments, he simply confessed two things: one, the two nominees were qualified; two, their politics made them too unsympathetic to his own political agenda, so they should be rejected.

Remember Obama’s assessment of Alito that had nothing to do with the law and everything to do with politics ('He’s a smart guy, there’s no indication that he is not a man of good character. But, when you look at his record, what is clear is that when it comes to his understanding of the Constitution, he consistently sides on behalf of the powerful against the powerless.'), and Roberts ('In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.')"

There will be opposition to whomever Obama picks, but I am interested to see the way such opposition is covered by the media and addressed by the Obama administration.  Obama has all but endorsed the idea that it is acceptable to vote against a nominee for purely political reasons.  It would be pure hypocrisy for him or his fawning media to apply a greater test to Republican opposition than Obama applied to himself.  I wouldn't be the least bit surprised to see Obama attempt to walk back his senatorial rhetoric in advance of a nominee to blunt such a "hypocrisy" charge.

May 01, 2009

Specter's Defection May Hurt Dems on Judges

Conventional wisdom has Specter's defection all but guaranteeing that the Democrats and Obama, without the threat of the filibuster, will be able to confirm just about anyone they want.  But his defection may have actually made it more difficult.  From Dorf on Law:
Does Arlen Specter's defection from R to D strengthen the President's hand in Congress? Perhaps overall but not on judicial appointments because breaking (the equivalent of) a filibuster in the Senate Judiciary Committee requires the consent of at least one member of the minority. Before today, Specter was likely to be that one Republican. Now what?
Specter's absence leaves the GOP with: Orin Hatch, Charles Grassley, Jon Kyl, Jeff Sessions, Lindsey Graham, John Conyn, and Tom Coburn.  Graham would be the obvious pick to vote to let the nominee out of committee.  He joined the Gang of 14 and has shown a desire to project himself as an staunch bipartisan.  That being said, the GOP, with a few exceptions who aren't members of the Judiciary Committee, have shown the ability to stick together in opposing Obama in other areas.  Whether that opposition extends to judicial nominees remains to be seen, but this committee rule may be something for the GOP to rally behind should Obama nominate a particularly egregious candidate.

Who knew Specter's absence would actually arm the GOP for the judicial battle that is likely to come?

On Filling Justice Souter’s Seat

There is much to say about the retirement of Justice David Souter, but for now we’ll limit ourselves to forward-looking thoughts about filling his seat on the Supreme Court. Our comments are grouped by who they pertain to (all comments can be attributed to CFJ Executive Director Curt Levey).

To Republican senators:

Take your time in examining the President’s Supreme Court nominee. The selection of judges is an issue of the highest priority for your voters and they expect it to be the same for you. While your voters may disagree with a decision to support a liberal nominee, they will understand any decision that is well thought out. However, should you race to support the nominee before their Senate hearing, Republican voters will be far less forgiving – all the more so if you appear to be pandering to the various identity groups that may cheer a historic nomination.

While each Republican senator must make up his or her own mind, do not roll over. The mere three votes against the confirmation of Ruth Bader Ginsburg – a nominee who was on record saying that laws against prostitution and bigamy were probably unconstitutional – is a classic example of what not to do.

Republicans on the Judiciary Committee should not be afraid to ask the kinds of tough questions that Democrats asked of nominees such as Robert Bork, Clarence Thomas, and Samuel Alito. In particular, the next Supreme Court nominee must be asked whether they share the President’s decidedly activist view that judges should consider, not just the law and facts, but also empathy for certain classes of people, including African-Americans, the poor, gays, and the disabled. You owe it to the American people and to senators not on the Committee to ensure that support or opposition to the nominee is based on thorough scrutiny of their record and judicial philosophy.

To red and purple state Democrats:

Remember the values of the regular folks who sent you to Washington. Don’t vote for a Supreme Court nominee whose values are closer to those of the intellectual elite than to those of your constituents. Let President Obama know now that you will not appreciate being put in that position. While it’s too early to know how much money will be spent on advertising to defeat an activist nominee, it is virtually certain that the money will be directed at red and purple state Democrats.

To Sen. Arlen Specter, who will play a pivotal role in the looming Supreme Court confirmation battle, we express appreciation for your pledge not to be a dependable 60th vote on cloture, and for your promise
to be an independent voice who will continue to differ from Democrats on the issues – including judicial nominations – where you have traditionally differed. You got off to a great start on Tuesday by reiterating your opposition to Obama Justice Department nominee Dawn Johnsen, and we trust that you will similarly serve as a check on any Supreme Court nominee that favors judicial activism over the rule of law.

To all supporters of the President’s eventual nominee:

Please keep in mind that President Obama voted against the Supreme Court nominations of John Roberts and Samuel Alito and supported the attempted filibuster of Alito. So please respect those who choose to oppose the President’s Supreme Court nominee by refraining from empty “party of NO’ rhetoric and name calling. For example, before you call anyone a racist, consider the leaked Democratic Judiciary Committee memos that revealed that opposition to D.C. Circuit nominee Miguel Estrada was based on fear that he would eventually become the first Hispanic Supreme Court Justice.

To President Obama:

Given the economic crisis, your ambitious legislative agenda, and your promises to rise above partisanship, one would think you would eschew a bitter, distracting confirmation fight and a sparking of the culture wars by naming a consensus nominee that moderate Republicans and Democrats can embrace. While we remain open to evidence to the contrary, it is our belief that potential nominees such as Sonia Sotomayor, Kathleen Sullivan, Harold Koh, and Deval Patrick are so clearly committed to judicial activism that they make a bruising battle unavoidable.

We realize that, in the past, you have said that you want judges who rule with their hearts and you have even expressed regret that the Warren Court “didn’t break free” from legal constraints in order to bring about “redistribution of wealth.” But now would be a good time for you to clarify if you feel that you may have gone too far by endorsing judicial activism. For example, you could make it clear that you agree with Attorney General Eric Holder’s recent statement that “judges should make their decisions based only on the facts presented and the applicable law” (response to written question from Sen. Arlen Specter).

We also hope that you resist the pressure you will inevitably face from the various identity groups that dominate the Democratic base. It would be a shame if you chose a nominee based on their race, gender, or sexual identity, rather than focusing exclusively on qualifications and judicial philosophy.

We remind you of your opposition to gay marriage, your commitment to individual Second Amendment rights, your support of the death penalty, and the great value you place on the role of religion in society. We hope you will not contradict those positions by choosing a Supreme Court nominee who has questioned the constitutionality of the death penalty, expressed an extreme view of the separation of church and state, or wavered on the questions of whether there is a constitutional right to same-sex marriage and an individual right to own guns. Also, given your promise to move the nation “beyond race,” it would be hard for you to explain the
nomination of someone who has expressed support for racial preferences, which polls indicate are now even more unpopular as a result of your election.

While many Americans – including some conservatives – are willing to give your experiment in using honey to coax cooperation from other nations a chance, the public is also looking for reassurance that our nation’s interests and sovereignty will always come first. Thus, now would be an awful time to choose a Supreme Court nominee who believes that American courts should put greater reliance on foreign law.

Finally, we remind you that, in the first year of his Administration, George W. Bush successfully nominated two former Clinton nominees – Roger Gregory and Barrington Parker – to the appeals courts in an effort to set a bipartisan tone. Now would be the perfect time for you to match the previous President’s gesture by renominating three unconfirmed Bush appeals court nominees who have bipartisan support – Peter Keisler, Judge Glen Conrad, and Judge Paul Diamond. Such a gesture would engender good feelings among Senate Republicans and would set a positive tone heading into what might otherwise be a bitter confirmation fight.

Obama's Pick: High Risk, Low Reward

The announcement that Justice Souter will be stepping down at the end of the term, while not a total shock, certainly focuses the attention of the nation on the Court.  But what does his retirement mean?  Will his replacement shift the Court?  

Justice Souter was firmly encamped in the Court's left wing so replacing him affords Obama a high risk, low reward pick.  Any pick that turns out to be to the right of Souter is a net gain for conservatives because, at the age of 69, Souter could have easily stayed on the court for another 15 or so years.  Ed Morrissey has more along this line:
Expect much wailing and gnashing of teeth by conservatives over Souter’s potential replacements, but the real problem falls on Barack Obama.  Despite his appointment by George H. W. Bush, Souter reliably stuck to the liberal side of the court, and his surprise retirement gives Obama little chance to change the court.  It does provide him with a raft of headaches ... 

Obama’s headaches come from this same dynamic.  He will face many competing pressures in selecting a replacement.  Supreme Court picks are high-profile affairs, and this will test Obama far more than his previous appointments — many of which have been disasters, like Tim Geithner, Tom Daschle, and the rest of the tax-evaders and lobbyists he’s picked.  Hispanics will want a representative voice on the court, and women will want to gain back the second seat that they lost with Sandra Day O’Connor’s retirement.  Blacks might expect Obama to appoint another African-American.  Meanwhile, in the Senate, Obama will be expected by some to play the bitter partisan game that has existed ever since Ted Kennedy kneecapped Robert Bork, and expected by others to pick someone in the middle ground to end those games.

The biggest tension will come from the far-Left activists of Obama’s party.  They’re losing a stalwart.  They can’t afford to have Souter replaced by a middle-ground justice who may not vote as reliably liberal as Souter.  In fact, that will be Obama’s problem for all of the likely retirements on the Court — Ruth Bader Ginsburg and John Paul Stevens.
Make no mistake about it, Obama is going to attempt to appoint a far-left judge, but that is exactly what Souter was.  If the GOP can in any way moderate Obama's nominee  or Obama's nominee turns out to be a Souter-in-reverse then it may tun out to be a net gain for conservatives, if only a slight one.  Even if it doesn't work out that way, the dynamic of the Court is unlikely to change.