Cato's Legal Arguments Worry U.S. Government

Last month, Cato (joined by Cato senior fellow Randy Barnett) filed a brief in United States v. Comstock, a case regarding the constitutionality of a law authorizing the federal government to civilly commit anyone in the custody of the Bureau of Prisons whom the attorney general certifies to be “sexually dangerous.” The effect of such an action is to continue the certified person’s confinement after the expiration of his prison term, without proof of a new criminal violation.

As I wrote in a previous blog post, “the use of federal power here is unconstitutional because it is not tied to any of Congress’s limited and enumerated powers.” Moreover, the government’s reliance on the Necessary and Proper Clause (Article I, Section 8), “is misplaced because that clause grants no independent power but merely ‘carries into execution’ the powers enumerated elsewhere in that section.” The commitment of prisoners after their terms end simply cannot fit into one of the enumerated powers.

While we of course hope that the Supreme Court pays attention to our brief, we know that Solicitor General Elana Kagan, at least, is concerned enough about our arguments to spend several pages of the government’s reply brief addressing them (see pages 5-9).
For more on Comstock, see its case page on SCOTUSwiki, which now has all the briefs and will around the Jan. 12 argument date be populated with argument previews and reviews, as well as links to media coverage.

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Supreme Speculation

With no hard news to report and the Supreme Court not in session — they’ll release opinions in the remaining cases on successive Mondays (plus the Tuesday after Memorial Day) beginning May 18 — Washington is abuzz with speculation over potential high court nominees. While Senator Orrin Hatch earlier this week said he expected an announcement this week, the White House is far more likely to take its time vetting candidates, with no real pressure to announce a pick until the Court recesses at the end of June.

Nobody other than the president himself really knows who’s favored, but ABC News’s Jan Crawford Greenburg — who will be contributing to this year’s Cato Supreme Court Review and speaking at our Constitution Day conference September 17 — has some fascinating scuttlebutt:

No clear favorite has emerged, but the pick has prompted an internal
struggle between legal and political officials within the administration,
sources say.

Political officials like Chief of Staff Rahm Emanuel are favoring Sotomayor, who would be an
historic pick as the Court’s first Hispanic justice.

Obama, the thinking goes, could score huge points with Hispanics, an
important and increasingly powerful constituency, by nominating Sotomayor or
another Latino. Sotomayor has a compelling life story, moving from the projects
to the nation’s most elite educational institutions and then onto the federal
bench.

But Sotomayor has not dazzled or distinguished herself on the appeals court
as a forceful theoretician or writer — something Obama, the former
constitutional law scholar who will drive this decision, is likely to want in
his Supreme Court nominee, sources close to the process said. Moreover, she’s
also been criticized for abrasiveness — which could be problematic on the high
court.

Legal officials in the Administration want Obama to tap a candidate who
would be a more obvious force on the Court, bringing both intellectual prowess
and a proven ability to build coalitions. They favor either Kagan or Wood —
prospects who could be considered judicial rock stars capable of going toe to
toe with Scalia and Roberts.

I would expect Senators Claire McCaskill (D-MO) and/or Amy Klobuchar (D-MN) also to be on the shortlist — more likely the former because she was one of Obama’s first supporters in the Senate (and whose replacement would be appointed by a Democratic governor). Senators have historically been fairly easy to confirm because of the courtesy extended to them by their erstwhile colleagues. Still, we haven’t had such a nominee — or anyone other than sitting appellate judges — in the poisonous post-Bork world, so all bets are off.

Were it not for Ricci v. DeStefano, Sotomayor would be a shoe-in on the simple formula of Princeton+Yale Law+Second Circuit+Hispanic woman. Now, and also for the reasons Jan cites, that is looking less likely. I still favor Wood because she has a proven judicial temperament, sterling qualifications in technical fields like antitrust and trade regulation, and would be no worse — and quite possibly better — than the other contenders on constitutional issues. If I were putting money on it, however, I would have to go with Kagan precisely because she was so recently vetted and confirmed (61-31, with Arlen Specter voting ”no” under Scottish law because he felt she hadn’t sufficiently answered his questions).

[Cross-posted at Cato's blog.]