January 20, 2010

More Thoughts on Brown's Effect on Judicial Nominees

Lyle Denniston at SCOTUS Blog:
And the next ten months, of course, is the time span during which a Supreme Court vacancy may well occur. If bipartisanship has any meaning any longer in the Senate, perhaps the President could find nominees who may have some appeal with moderate Republicans. That almost certainly would translate as nominees decidedly more moderate in their views than the President’s first choice for the Court, Justice Sonia Sotomayor, who has taken a place comfortably in the Court’s liberal wing. It might even be doubtful that a nominee with views aligned closely with those of Justice Stevens could get confirmed.

Ilya Shapiro at CATO isn't sure it changes all that much:
Here’s why: Despite having been a constitutional law professor — whom I did not have when I was in law school, though I passed him in the halls a few times — the president has not really tried to advance his ideological agenda in the courts. It’s bizarre, really, that judicial nominations have not at all been a priority for this administration given that few people pay attention to lower court appointments and this could have been a place where the president could have thrown some bones to his base at little political cost (and certainly far less cost than the rest of his domestic agenda).

Moreover, based on the Sotomayor nomination, we see that when it comes to the Supreme Court, Obama is much more about affirmative action than appointing either the best-qualified Democrats or the most ”progressive” ones (or both, to provide a counterweight to Justice Scalia). (Note that Sotomayor at the time of her nomination was nowhere near the best or most left-wing member of the federal judiciary.) Even with a filibuster-proof Senate majority, we would have been unlikely to see a Cass Sunstein or Harold Koh pick — though each took not insignificant heat and delay in being confirmed to regulatory czar and head State Department lawyer, respectively. (And Larry Tribe is too old.)

With Sonia Sotomayor, Obama hit the “twofer” of a woman and a Hispanic (the first unless you count Benjamin Cardozo). With the Stevens replacement, women and minorities are still slightly preferred but the key “diversity” quota to fill is “non-judge” — and, per the above, a non-controversial one on whom the president won’t have to spend much political capital.

Brown Win Bad News for Obama Nominees

CFJ Executive Director Curt Levey on the impact of Scott Brown’s win:

“While most of the buzz about the impact of Scott Brown’s election to the Senate has centered on President Obama’s legislative agenda – particularly health care and cap and trade – the impact on his judicial and executive branch nominees, whose fates are completely dependent on the Senate, will be at least as great. It is no coincidence that Erroll Southers, Obama’s controversial pick for the Transportation Security Administration, withdrew his nomination this morning.

“It is not just the Democrats’ loss of a filibuster-proof Senate majority that puts Obama nominees in jeopardy. Red and purple state Democrats have new fear in their hearts and will be bending over backwards – and to the right – to be more in step with the folks back home. Obama’s more radical nominees are obvious targets for every moderate Democratic senator trying to portray themselves as not just another Washington liberal. In the end, all it takes to put an Obama nominee permanently on the back burner is the opposition of a couple of those moderate Democrats.

“Moreover, unlike legislation, judicial and executive branch nominees are wholly owned by the President. Because senators get virtually no credit or blame for a nomination or for the nominee’s performance after confirmation, approving controversial nominees is done out of deference to the President. Yesterday’s blow to Obama’s prestige means that Democratic senators will feel less obliged to defer to the President.

“All of these factors will be magnified in the likely case that President Obama is faced with nominating one or more Supreme Court Justices later this year. At least one High Court vacancy is probable in light of Justice Steven’s decision not to hire a full complement of law clerks for the next term and Justice Ginsburg’s continuing battle against pancreatic cancer. Republicans were lamenting the problem of facing a Supreme Court confirmation battle before the 2010 elections could restore the threat of a GOP filibuster. Scott Brown’s victory eliminates that problem.

“Among those most immediately affected by the changed political landscape will be Obama district court nominees Edward Chen and Louis Butler. Chen characterized immigration laws as ‘institutionalized racism’ and described his ‘feelings of ambivalence and cynicism when confronted with appeals to patriotism’ – in this case the singing of ‘America the Beautiful’ – because there is ‘too much injustice and too many inequalities’ in America. Butler’s record displays hostility to Second Amendment rights and a willingness to ignore precedent in order to rule for criminal defendants. After yesterday’s election, red and purple state Democrats are in no hurry to vote for these radioactive nominees and may well ask their leadership to put off a vote on the Senate floor.

“Among the executive branch nominees most immediately affected is Justice Department nominee Dawn Johnsen. Johnsen’s controversial views – for example, arguing that restrictions on abortion violate the Thirteenth Amendment’s prohibition against slavery and attacking the bipartisan Hyde Amendment’s prohibition on federal funding of abortions – have stalled her nomination for the last year. Johnsen’s chances for confirmation seemed buoyed by Sen. Arlen Specter’s recent flip-flop decision to support her. But Scott Brown’s election means her nomination is now likely dead in the water.

“Another ultra-liberal Assistant Attorney General nominee, Chris Schroeder, also saw his chances for confirmation take a nosedive last night. In addition to defending Johnsen’s radical Thirteenth Amendment theory, Schroeder has repeatedly endorsed judicial activism, including the empathy standard disavowed by Justice Sotomayor at her Senate hearing last summer.

“Also on the legal front, the nomination of Chai Feldblum to the Equal Employment Opportunity Commission is now in serious jeopardy. Feldblum was among the leading signers of a 2006 letter denouncing the legally ‘privileged’ status of marriage and demanding ‘governmental and private institutional recognition of diverse kinds of … families,’ including ‘households in which there is more than one conjugal partner.’ Combine that with Feldblum’s argument that the religious liberty guaranteed by the Constitution should give way to her vision of ‘sexual liberty,’ and there’s plenty of reason for moderate Democrats to worry about giving her their stamp of approval.

“Until yesterday, the conventional wisdom was that virtually all of Obama’s controversial nominees would squeak through the Senate. But Scott Brown’s victory has transformed the political calculus on which that wisdom was based. At a time when Americans – even Massachusetts residents – are signaling their anxiety about government swinging too far to the left, look for Democratic senators to stand up against Obama nominees hostile to gun rights, patriotism, law enforcement, and mainstream social values.”


January 19, 2010

Judicial Duty and the Supreme Court’s Cult of Celebrity

That is the title of a forth coming article from Craig Lerner and Nelson Lund. They will be guest blogging about the article all week at Volokh. Here is the abstract from their paper.
Judging from recent confirmation hearings, there is now a consensus that Supreme Court Justices should be humble servants of the law, highly respectful toward precedent and without personal agendas of any kind. Few informed observers expect this to happen. After describing some of the institutional factors that operate to discourage adherence to the traditional ideal of judicial duty, this article proposes four statutory reforms that could help the Justices stick a little closer to the promises they are expected to make, and do make, at their confirmation hearings.

First, Congress should require that all Supreme Court opinions, including concurrences and dissents, be issued anonymously. This should lead to fewer self-indulgent separate opinions, more coherent and judicious majority opinions, and more reason for future Justices to treat the resulting precedents respectfully.

Second, Congress should require the Court to hear at least one case certified from a circuit court for every federal question case they choose from their discretionary docket. This would reduce the temptation to assemble a docket consisting largely of interesting or high-profile cases, and encourage the Justices to grapple with more of the important but unglamorous issues vexing the lower courts.

Third, Congress should forbid law clerks to draft judicial opinions, and move them to the office of the Court’s Librarian, where they would do legal research for the Court rather than for individual Justices. Truly humble and old-fashioned judges should study the precedents themselves, discuss the law with their colleagues (rather than with their handpicked votaries), and write their own opinions.

Fourth, Congress should require Justices to serve part of their time on lower federal courts, as they did for the first century of the republic’s existence. Restoring “circuit riding” would give the Justices some on-going experience with playing the role of a modest judge whose decisions are subject to appellate review and who is often required to interpret and apply muddled Supreme Court opinions.

If serving as a Supreme Court Justice were to become a full-time, non-delegable job with fewer opportunities for personal aggrandizement, the Justices would behave more like judges than legal celebrities, Presidents would have more incentive to appoint genuinely able people, and fewer Justices would insist on staying in the saddle past the time when they can even mount the horse.

January 18, 2010

Racial Politics and the Supreme Court

A piece in the New Yorker on Justice Sotomayor details how her path to the nomination began, and, shocker!, race played a predominant factor in her nomination.
Latino leaders began laying the groundwork for a Sotomayor nomination almost as soon as President Obama was elected. During the Administrations of George H. W. Bush and Bill Clinton, Latino groups had repeatedly failed to coalesce around a candidate. This time, they were determined to wield their influence as a bloc. In January, Nydia Velázquez, the Democratic congresswoman from New York’s Twelfth District, was sworn in as the head of the Congressional Hispanic Caucus. She asked Sotomayor, a longtime friend, to come to Washington to administer the oath—and to insure that she was fresh in the mind of every Hispanic member of Congress.

At a Cinco de Mayo party at the White House, Velázquez and Serrano, who is of Puerto Rican descent, each buttonholed Obama.

“Mr. President, she’s a very qualified person, and it would be a historic nomination,” Serrano said.

Velázquez gripped Obama by both hands. “Mr. President, you have an opportunity, here in your hands, to shape the United States Supreme Court for years to come.”

Obama whispered into Velázquez’s ear and smiled. “I know—there’s a Puerto Rican woman.”

Justice David Souter announced his resignation on May 1st. Not long afterward, the Hispanic Caucus convened to formally endorse a candidate. The meeting was long and contentious. The Mexican-Americans did not have a superior candidate. The Puerto Ricans did not have the numbers. After hours of debate, Ed Pastor, a Mexican-American congressman from Arizona, made a motion: “The best candidate is Sonia Sotomayor, and we should take a vote right here.” The meeting ended with a unanimous vote for Sotomayor.

Latino leaders also lobbied their black counterparts to the cause. “The concern of some people, and I believe some in the White House, was with what political capital they could use in nominating a Latina in terms of the black community, who feel that Clarence Thomas doesn’t represent them,” Velázquez said. On the House floor, Velázquez approached the North Carolina representative Mel Watt, who serves on the House Judiciary Committee, and who formerly chaired the Congressional Black Caucus. A few days later, Watt called Velázquez on a Saturday. “Nydia, I placed a call to the White House,” he said. “I said, ‘If there’s not a black candidate that makes the short list, we will be supportive of Sonia Sotomayor.’ ”

Apparently this was not lost on Justice Sotomayor who, following her confirmation, said, “Although we all wish to believe that appointments are only the product of merit, the harsh reality is that the support of community groups is critical to insuring that meritorious candidates are not overlooked or victimized in the appointment process."

January 13, 2010

Actually, Justice Breyer, the Constitution Enumerates Specific Powers, not Limitations on Otherwise Plenary Federal Power

This won't come as a shock to anyone, but it is a nice reminder that there are those on the Court who see NO limit to federal power unless it infringes on a pet issue of the left.

From Ilya Shapiro:
I don’t think her “cascading powers” theory of the Necessary and Proper Clause is a winner — for reasons I describe in my recent podcast — and Justice Scalia also wasn’t convinced. Justice Breyer, however, at one point asked where the Constitution prohibited the federal government from “help[ing] with” a problem it identified (see page 31 of the transcript) and in general was hesitant to find limits to congressional action to solve big policy areas.

Breyer has it all backward: We don’t operate on the premise that the government has full plenary power to do whatever it thinks is best, for the “general welfare,” for “the children,” for “society,” or for any particular group, checked only by specific prohibitions. Instead, our system of government — our constitutional rule of law — provides for islands of government involvement in a sea of liberty. It is individual people who can do whatever they want that isn’t prohibited by law, not the government.

And so we’ll see soon enough which vision of the relationship between citizen and state the Supreme Court embraces. Along with Justice Breyer, Justices Stevens and Ginsburg also were not very sympathetic to the federalism and libertarian arguments ably presented by federal public defender G. Alan Dubois. Along with Justice Scalia, Justice Alito was (refreshingly) skeptical of undue government power — and one would expect (the silent) Justice Thomas to be in that category as well. Justice Sotomayor also asked some interesting questions inquiring into the federal government’s ability to hold someone indefinitely — including on the relationship of that power to the Commerce Clause authority underlying most federal exercise of power — so she could go either way. Finally, the Chief Justice and Justice Kennedy were, uncharacteristically, not all too active — seeming to question both sides equally — so it’s hard to predict how the Court will ultimately rule.

January 12, 2010

Myth of Campaign Finance Reform

Law Professor, campaign finance expert, and former FEC commissioner Bradley Smith has an excellent essay in the winter issue of National Affairs on the myth of campaign finance reform. This is a great read in the lead up to an impending decision in the Citizens United case. In sum:
To anyone following the evolution of the campaign-finance reform movement, it should have been obvious that book-banning was a straightforward implication of the McCain-Feingold law (and the long line of statutes and cases that preceded it). The century-old effort to constrict the ways our elections are funded has, from the outset, put itself at odds with our constitutional tradition. It seeks to undermine not only the protections of political expression in the First Amendment, but also the limits on government in the Constitution itself — as well as the understanding of human nature, factions and interests, and political liberty that moved the document's framers.

By putting the point so bluntly before the Supreme Court, Malcolm Stewart may have inadvertently set off a series of events that could, in time, erode the claim to moral high ground upon which the campaign-finance reform movement has always relied. At the very least, his frankness invites us to consider the origins and consequences of that movement — and the implications of its efforts for some cherished American freedoms.

January 09, 2010

Looking to Own a Gun in D.C. - Do You Feel Lucky?

From WaPo:
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.

Oh, and the votes of five Supreme Court justices. They're the ones who really made it possible for me, as a District resident, to own a handgun, a constitutional right as heavily debated and rigorously parsed as the freedoms of speech and religion. ...

Reluctantly, Mayor Adrian M. Fenty's administration set up a process through which about 550 residents -- now including yours truly -- have acquired a handgun. But as my four trips to the police department attest, D.C. officials haven't made it easy.

Which was exactly their intent. The day the Heller decision was announced, Council Chairman Vincent C. Gray (D) vowed that the city was still "going to have the strictest handgun laws the Constitution allows." Fenty decried the ruling, saying that "more handguns in the District of Columbia will only lead to more handgun violence."

Read the whole thing.

No Shock: Judge Tosses Bulk of Evidence Against Gitmo Detainee

This isn't really a surprise. As I talked about here, the only other choice is to bless, as constitutional, enhanced interogation making horrible law for future Americans.

A preview of KSM?
A federal judge has tossed out most of the government's evidence against a tarrorism detainee on grounds his confessions were coerced, allegedly by U.S. forces, before he became a prisoner at Guantanamo Bay.

In a ruling this week, U.S. District Judge Thomas Hogan also said the government failed to establish that 23 statements the detainee made to interrogators at Guantanamo Bay were untainted by the earlier coerced statements made while he was held under harsh conditions in Afghanistan.

Update: Just a reminder that Obama may have these trials rigged with a special two-tiered approach to detainees.

A quick overview of Obama's approach via Hot Air.
When he’s got a bunch of evidence on someone such that the confession is basically unnecessary, they go to federal court so that The One can boast about due process. When he doesn’t have much evidence besides the confession, they go to a military tribunal so that the confession can be admitted into evidence and he can boast about the eventual conviction. It’s a sham, and it’s crowned by the fact that he’s all but promised to keep dangerous detainees imprisoned even if they’re acquitted, but that’s the game he’s decided he wants to play.

January 08, 2010

Misunderstanding Judicial Activism

I am routinely dismayed by how little the left understands about the judicial philosophy of the right. This example comes courtesy of The Atlantic:
The week's headline (from The Hill, no less) says it all: "Republicans see the courts as the last line of defense vs. Democrats Agenda"

I am old enough, at the tender age of 43, to remember 1980s headlines like: "Democrats see the courts as the last line of defense vs. GOP agenda." Back then, liberals hoped the federal courts would stem the conservative tide that was sweeping through politics in the Age of Reagan. But now, in the burgeoning Age of Obama, it's conservatives and Republicans who believe an active and forceful judiciary is necessary to thwart the "tyranny" of the current majority.

So much for their old saw about "judicial activism" being such a bad thing. The same folks now tripping over themselves to get into court over health care reform were nowhere to be found during the eight years in which George W. Bush's lawyers and strategists were undermining the rule of law (over detainees, torture, domestic surveillance, and the politicization of the Justice Department, to name just a few).

There is 'judicial activism' and there is 'judicial activism'. The left doesn't seem to understand this. Every time a law is struck down does not mean that there was judicial activism afoot. The Constitution says very specific things about what the government can and can't do. For example, striking down a law that forbid minorities from being employed as bankers would run afoul of the Equal Protection clause. No one would see the striking down of this law as an act of judicial activism, except maybe now under the left's definition of the phrase. As conservatives have gained ground with the public by pointing out judicial activism, the left has attempted to co-opt the phrase in an effort to gain traction with the public. But, when you look at the actual arguments put forth, such as the one excerpted above, it makes little sense and shows how little they truly understand the right.

The term judicial activism was coined in a 1947 Fortune article. See Randy E. Barnett, Constitutional Cliches, 36 Cap. U. L. Rev. 493, 493-94 (Spring 2008). The author, Arthur Schlesinger Jr., described the judicial activists as a “group [that] regards the Court as an instrument to achieve desired social results." Id. This definition most accurately comports with the idea put forth by conservatives of judicial activism.

I personally think the term is thrown around a bit carelessly and excessively, but that shouldn't excuse journalists from properly representing the conservative use of the phrase when attempting to point out conservative hypocrisy. It seems there is a growing, conscious misuse of the term that threatens to undermine its public meaning and desired effect.

January 07, 2010

Irony Alert: Lawyer of Gitmo Detainees Says They'll Likely Sue to Stay In Guantanamo

From the Washington Examiner:
Buried in a blog item by Newsweek's ace reporter Michael Isikoff is a bombshell. Appararently lawyers for Guantanamo detainees want to keep their clients in Guantanamo, rather than transfer them to the Obama administration's proposed new prison in Illinois:
But the final irony is that many of the detainees may not even want to be transferred to Thomson and could conceivably even raise their own legal roadblocks to allow them to stay at Gitmo.

Falkoff notes that many of his clients, while they clearly want to go home, are at least being held under Geneva Convention conditions in Guantánamo. At Thomson, he notes, the plans call for them to be thrown into the equivalent of a "supermax" security prison under near-lockdown conditions.

"As far as our clients are concerned, it's probably preferable for them to remain at Guantánamo," he says.

The strident left-wing critiques of the Guantanamo facility have all centered around the fact that detainees there are horribly mistreated and conditions unbearable. But when push comes to shove, it would seem concerns about Guantanamo are overblown, and the prisoners there know that being held under the Geneva conventions outside the U.S. is much preferable to a maximum security prison in the U.S.

NRA Seeks Time at McDonald Oral Argument

As those who have followed the gun rights issue know, the NRA and Alan Gura, McDonald and Heller attorney, have not always seen eye to eye. the NRA was not initially on board with Heller feeling that it was premature, only coming on board as an ally once the case reached the Supreme Court. A similar rift has arisen over Gura's emphasis on the Privileges of Immunities clause in the upcoming case of McDonald v. Chicago. As a result, the NRA has petitioned the Court to grant it ten minutes at oral argument.

From SCOTUSblog:
The National Rifle Association asked the Supreme Court on Tuesday to allow its lawyer to take part in the oral argument March 2 in the case testing whether the Second Amendment restricts the power of state and local governments to pass gun control laws. It sought 10 minutes of time allotted to the individuals and groups that are pursuing the Amendment’s extension, to put more stress on an alternative constitutional argument. The request, the NRA noted in its motion, is opposed by the lead parties in McDonald, et al., v. Chicago (08-1521). Those parties are expected to file a written opposition shortly. The Court will consider the NRA request at its private Conference on Jan. 15.

The Court in the McDonald case will consider two main arguments for applying the individual right to possess guns to state and local laws: first, that gun rights should be protected at those levels by the 14th Amendment’s “Privileges or Immunities” clause; and, second, the protection should come under the Amendment’s Due Process clause. Both of those arguments are at issue in the question presented by the petition. The NRA said it wants to put stress on the due process argument.

In their merits brief in the case, the NRA noted, Otis McDonald and the others appealing “have concentrated their argument on a Privileges or Immunities Clause theory that would require overruling at least three of this Court’s precedents.” And, the motion added, only 7 pages of the 73-page McDonald brief discuss the Due Process Clause.

The Due Process Clause, former Solicitor General Paul D. Clement said in the NRA motion, “presents the most straightforward and direct route to reversal of the decision” of the 7th Circuit Court against extending the Second Amendment to the state and local level. “Because the Due Process Clause represents a route to reversal that does not necessitate the overruling of this Court’s precedents, it would be particularly unfortunate if that argument was not adequately presented at oral argument.”

The NRA maneuver brings further out into the open the strategic differences in pursuing the two alternative arguments.