Cato Supreme Court Review on the Road

With last week’s Constitution Day conference behind us (watch it here) — and the release of the 2008-2009 Cato Supreme Court Review — I can finally escape the office where I’ve been holed up all summer. Yes, it’s time to go on the road and talk about all these wonderful legal issues we’ve learned about over the past year, as well as previewing the new Supreme Court term.

To that end, below is my fall speaking schedule so far. All these events are sponsored by the Federalist Society (and in some cases co-sponsored by other organizations) and all are open to the public.

If you decide to attend one of the presentations after learning of it from this blog post, please feel free to drop me a line beforehand, and do introduce yourself after the event.

Sept. 24 at 11:50am – DePaul Law School, Chicago – Debate on the Second Amendment post-Heller

Sept. 24 at 4:30pm – Chicago-Kent School of Law – Panel on Rule of Law in Iraq

Sept. 29 at 5:00pm – University of Cincinnati Law School - Rule of Law and Economic Development

Sept. 30 at 12:00pm – Capital University Law School (Columbus, OH) – Review of October Term 2008/Preview of October Term 2009

Sept. 30 at 3:30pm – Ohio Northern School of Law (Ada, OH) – Debate on Ricci and Affirmative Action in Employment

Oct. 1 at 12:00pm – University of Toledo Law School – Debate on Ricci and Affrimative Action in Employment

Oct. 1 at 5:00pm – Thomas M. Cooley Law School (Auburn Hills, MI) – Immigration and the Constitution

Oct. 5 at 12:00pm – University of Pennsylvania Law School – Debate on the Use of Foreign Law in Constitutional Interpretation

Oct.6 at 5:30pm – Blank Rome LLP in Philadelphia (Federalist Society Lawyers Chapter; small admission fee) – Panel on Rule of Law in Iraq

Oct. 8 at 1:00pm – Penn State-Dickinson Law School (University Park) – October Term 2009 Preview

Oct. 13 at 5:15pm – George Mason University Law School (Arlington, VA) – October Term 2009 Preview

Oct. 26 at 12:00pm – Florida International University Law School (Miami) – Topic TBA

Oct. 27 at 12:30pm – University of Miami Law School – Topic TBA

[Cross-posted at Cato's blog.]

Ricci v. DeStefano: A Victory for Merit Over Racial Politics

Ricci is a victory for merit over racial politics—which is appropriate given that the ruling overturns a lower court panel that included Sonia Sotomayor.

In the blockbuster decision we’d been awaiting all term, the Court reached the correct result: The government can’t make employment decisions based on race. While the city’s desire to get more blacks into leadership positions at the fire department is commendable, it cannot pursue this goal by denying promotions simply because those who earned them happen to have an inconvenient skin color.

This ruling is the latest in a series of steps the Court has taken to strike down race-conscious actions that violate individual rights—and thus is a blow both to the Obama administration (which sided with the city in Ricci) and to the nomination of Judge Sotomayor. Those who bring cases before the courts deserve much more than empathy or even “sympathy”—the word Justice Ginsburg uses in her dissent—they deserve equal treatment under the law.

[Cross-posted on Cato's blog.]

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.]