The hearing began after lunch with Senator Grassley probing Sotomayor’s views on Kelo v. New London and the Fifth Amendment’s protection of property right—one of the questions I would ask her. The nominee apparently thought the senator (who’s not a lawyer) needed a lesson in what went on in Kelo and how the Court ruled. Grassley, having been briefed by counsel, didn’t seem to care for that, pushing Sotomayor on whether she thought Kelo was correctly decided and how she views constitutional property rights generally.
Sotomayor said Kelo was a judgment of the Court that she accepts, but that any future case she would have to judge on its own merits. Well, of course, but that wasn’t the question on the table. Exasperated, Grassley asked Sotomayor whether a taking with no compensation would be constitutional. The “wise Latina” couldn’t formulate a proper response, smiling and explaining that what constitutes a “taking” is subject to legal analysis. Well, yes, but that still doesn’t answer the question. Finally, Sotomayor concluded that if a taking violated the Constitution, she would have to strike it down.
In short, according to Sotomayor, if something is unconstitutional, a judge can’t allow it. The technical term we lawyers use for this kind of sophisticated reasoning is “circular”—with the judge here getting to decide based on no discernible criteria whether something is constitutional.
For more on the outrageous takings Judge Sotomayor has allowed, see George Mason law
professor Ilya Somin’s analysis of the Didden v. Port Chester case. (Somin, also a Cato adjunct scholar, will be testifying at the hearings later this week.)
[Cross-posted at Cato's blog.]
Tuesday, July 14, 2009
Update on the Sotomayor Hearings
After yesterday’s bloviating—much reduced by Joe Biden’s departure from the committee—today we’ve gotten into some good stuff. Sotomayor is obviously well-prepared. She speaks in measured, dulcet tones, showing little emotion.
Judiciary Committee Chairman Leahy gave her the opportunity to explain herself on Ricci and on the “wise Latina” comment—which she has repeated in public speeches at least six times going back 15 years—and then built up the nominee’s background as a prosecutor and trial judge. Ranking Member Sessions and Senator Hatch (himself a former chairman of the committee) pounded Sotomayor on Ricci, asking her how she reconciles a race-based decision with clear Supreme Court precedent—and how her panel decided the case in two paragraphs despite the weighty statutory and constitutional questions.
Sessions in particular pointed out the inconsistency between her statement yesterday that she was guided by “fidelity to the law” and her history of calling the appellate courts as being the place where “policy is made” and profession of inability to find an objective approach of the law divorced from a judge’s ethnicity or gender. Sotomayor’s responses were not convincing; rather than agreeing with Justice O’Connor’s statement that a wise old man and a wise old woman would come out the same way on the law, the “wise Latina” comment plainly means the exact opposite.
And so the back-and-forth continues. One refreshing thing I will note is that only twice has the nominee said she can’t answer a question or elaborate on a response: on abortion, saying Griswold, Roe, and Casey are settled law; and on guns, declining to discuss whether the constitutional right to bear arms can be used to strike down state (as opposed to federal) laws.
The former is a clear—but not unexpected—cop-out because, unlike a lower court judge, the Supreme Court justice revisits the nature and scope of rights all the time. The latter is actually the correct response in light of the three cert petitions pending before the Court in the latest round of Second Amendment litigation. Still, her discussion of the Second Amendment left much to be desired given her ruling in Maloney; as Jillian Bandes pointed out recently, you can’t discuss incorporation without a solid understanding of Presser.
[Cross-posted at Townhall and at Cato's blog.]
Judiciary Committee Chairman Leahy gave her the opportunity to explain herself on Ricci and on the “wise Latina” comment—which she has repeated in public speeches at least six times going back 15 years—and then built up the nominee’s background as a prosecutor and trial judge. Ranking Member Sessions and Senator Hatch (himself a former chairman of the committee) pounded Sotomayor on Ricci, asking her how she reconciles a race-based decision with clear Supreme Court precedent—and how her panel decided the case in two paragraphs despite the weighty statutory and constitutional questions.
Sessions in particular pointed out the inconsistency between her statement yesterday that she was guided by “fidelity to the law” and her history of calling the appellate courts as being the place where “policy is made” and profession of inability to find an objective approach of the law divorced from a judge’s ethnicity or gender. Sotomayor’s responses were not convincing; rather than agreeing with Justice O’Connor’s statement that a wise old man and a wise old woman would come out the same way on the law, the “wise Latina” comment plainly means the exact opposite.
And so the back-and-forth continues. One refreshing thing I will note is that only twice has the nominee said she can’t answer a question or elaborate on a response: on abortion, saying Griswold, Roe, and Casey are settled law; and on guns, declining to discuss whether the constitutional right to bear arms can be used to strike down state (as opposed to federal) laws.
The former is a clear—but not unexpected—cop-out because, unlike a lower court judge, the Supreme Court justice revisits the nature and scope of rights all the time. The latter is actually the correct response in light of the three cert petitions pending before the Court in the latest round of Second Amendment litigation. Still, her discussion of the Second Amendment left much to be desired given her ruling in Maloney; as Jillian Bandes pointed out recently, you can’t discuss incorporation without a solid understanding of Presser.
[Cross-posted at Townhall and at Cato's blog.]
Sotomayor and "Secret Law"
Sotomayor didn’t have much to say in response to Senator Feingold’s inquiries regarding national security law and civil liberties post-9/11, but the Wisconsin lawmaker’s questions about “secret law”—on which he didn’t press the nominee’s non-answers—made me think of the following: Both Ricci (the infamous firefighters race discrimination case) and Didden were “unpublished” summary dispositions.
If Sotomayor had not been nominated to the Supreme Court, causing hundreds if not thousands of lawyers to comb through her judicial opinions, would anyone have uncovered these blatant attempts to sweep controversial legal issues under the rug? Are Ricci and Didden Sotomayor’s secret law?
CP Townhall and Cato's blog.
If Sotomayor had not been nominated to the Supreme Court, causing hundreds if not thousands of lawyers to comb through her judicial opinions, would anyone have uncovered these blatant attempts to sweep controversial legal issues under the rug? Are Ricci and Didden Sotomayor’s secret law?
CP Townhall and Cato's blog.
Monday, July 13, 2009
Opening Day at Judiciary Park: Sotomayor on Deck
The first day of the Sotomayor hearings yielded many baseball references but little in the way of home runs and strikeouts—or surprises. Democrats lauded Sotomayor’s rags-to-riches story and career achievements. Republicans questioned the “wise Latina’s” commitment to objectivity, whether she would be a “judicial activist” and—most interesting to me—whether she planned to use foreign law in helping her to interpret the Constitution. These would clearly be the lines of attack and counterattack.
It was all “set pieces”—prepared statements that often said more about the senators themselves than about the nominee. The stars of the show were unquestionably Senators Sessions (R-AL), Graham (R-SC), and Franken (D-SNLMN). Sessions, the ranking member, is armed for bear and has clearly been reading the memos my colleagues around town have been writing. Graham marches to his own (very candid) drummer, pronouncing that Sotomayor would be confirmed unless she had a “complete meltdown.” Franken… well he’s just happy to be on the big stage on his sixth day in office.
Assuming Sotomayor is confirmed, however, this will not be that big a political victory for President Obama. With Democrats holding a 60-40 margin in the Senate, confirmation has long been expected, and the political markets have already discounted for it. The president will likely see a temporary blip of support, particularly among Hispanics, but not as much as one might think—because those who are high on Sotomayor already support Obama. Moreover, most people will soon forget the Supreme Court and go back to worrying about their personal economic situation—which the president’s policies are certainly not helping.
In a way, this week’s hearings and the confirmation process generally have more downside potential for the administration than upside. Not because of the small chance Sotomayor won’t get confirmed—which would be a real blow—but because issues such as affirmative action, property rights, gun rights, and the use of foreign law are all being thrust to the forefront of the news cycle. These issues, and the debate over judicial philosophy generally, are all winners for the Republicans—if they play their cards right.
In any event, tomorrow the real fun begins—with the blue team tossing softballs at the nominee and the red team sending the high heat.
[Cross-posted at Cato's blog.]
It was all “set pieces”—prepared statements that often said more about the senators themselves than about the nominee. The stars of the show were unquestionably Senators Sessions (R-AL), Graham (R-SC), and Franken (D-SNLMN). Sessions, the ranking member, is armed for bear and has clearly been reading the memos my colleagues around town have been writing. Graham marches to his own (very candid) drummer, pronouncing that Sotomayor would be confirmed unless she had a “complete meltdown.” Franken… well he’s just happy to be on the big stage on his sixth day in office.
Assuming Sotomayor is confirmed, however, this will not be that big a political victory for President Obama. With Democrats holding a 60-40 margin in the Senate, confirmation has long been expected, and the political markets have already discounted for it. The president will likely see a temporary blip of support, particularly among Hispanics, but not as much as one might think—because those who are high on Sotomayor already support Obama. Moreover, most people will soon forget the Supreme Court and go back to worrying about their personal economic situation—which the president’s policies are certainly not helping.
In a way, this week’s hearings and the confirmation process generally have more downside potential for the administration than upside. Not because of the small chance Sotomayor won’t get confirmed—which would be a real blow—but because issues such as affirmative action, property rights, gun rights, and the use of foreign law are all being thrust to the forefront of the news cycle. These issues, and the debate over judicial philosophy generally, are all winners for the Republicans—if they play their cards right.
In any event, tomorrow the real fun begins—with the blue team tossing softballs at the nominee and the red team sending the high heat.
[Cross-posted at Cato's blog.]
Thursday, July 9, 2009
The Sotomayor Hearings
Nothing has changed in the six short weeks since Sonia Sotomayor was nominated to the Supreme Court: she remains a symbol of the racial politics she embraces. While we celebrate her story and professional achievements, we must realize that she — an average federal judge with a passel of unimpressive decisions — would not even be part of the conversation if she weren’t a Hispanic woman.
As Americans increasingly call for the abolition of affirmative action, Sotomayor supports racial preferences. As poll after poll shows that Americans demand that judges apply the law as written, the “wise Latina” denies that this is ever an objective exercise and urges judges to view cases through ethnic and gender lenses.
At next week’s hearings, Sotomayor will have to answer substantively for these and other controversial views — and for outrageous rulings on employment discrimination, property rights, and the Second Amendment. To earn confirmation, she must satisfy the American people that, despite her speeches and writings, she plans to be a judge, not a post-modern ethnic activist. After all, a jurisprudence of empathy is the antithesis of the rule of law.
[Cross-posted at Cato's blog.]
As Americans increasingly call for the abolition of affirmative action, Sotomayor supports racial preferences. As poll after poll shows that Americans demand that judges apply the law as written, the “wise Latina” denies that this is ever an objective exercise and urges judges to view cases through ethnic and gender lenses.
At next week’s hearings, Sotomayor will have to answer substantively for these and other controversial views — and for outrageous rulings on employment discrimination, property rights, and the Second Amendment. To earn confirmation, she must satisfy the American people that, despite her speeches and writings, she plans to be a judge, not a post-modern ethnic activist. After all, a jurisprudence of empathy is the antithesis of the rule of law.
[Cross-posted at Cato's blog.]
Monday, June 29, 2009
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.]
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.]
Friday, June 26, 2009
Mourning the Loss of a Great American Capitalist
While the big news of the day wouldn’t seem to have a public policy angle, Michael Jackson’s death allows us to remember that such phenomenal career achievements can only be possible in an economic system that rewards and harnesses talent.
The King of Pop’s creativity allowed him and his family to make hundreds of millions of dollars, yes, but it also created thousands of jobs in the music and marketing industries and brought joy to fans around the world. Whatever his personal eccentricities — perhaps, in part, as a result of them — Jackson represents a capitalist success story.
No central planner could have invented him, and no government bureaucracy could have transformed pop music in the way he did.
[Cross-posted at Cato's blog.]
The King of Pop’s creativity allowed him and his family to make hundreds of millions of dollars, yes, but it also created thousands of jobs in the music and marketing industries and brought joy to fans around the world. Whatever his personal eccentricities — perhaps, in part, as a result of them — Jackson represents a capitalist success story.
No central planner could have invented him, and no government bureaucracy could have transformed pop music in the way he did.
[Cross-posted at Cato's blog.]
Thursday, June 25, 2009
"Sweet" Victory in Oregon
As a follow-up to Jason Kuznicki’s post from January, I am pleased to report that yesterday Oregon Governor Ted Kulongoski signed HB 2817—a bill that eliminates the cartelization of the moving business in the Beaver state.
The old law required the Oregon Department of Transportation to notify existing moving companies of businesses that wanted to enter into their market. What’s more, those companies were given a veto over the would-be market entrants thereby locking out all competition to maintain artificially high prices—all with the government’s help.
The owner of a new moving company, Adam Sweet, enlisted the help of Pacific Legal Foundation lawyer and Cato adjunct scholar Tim Sandefur to litigate against the old law. That lawsuit, once it cleared challenges for dismissal, prompted several pieces of legislation that culminated into the bill that the governor signed yesterday.
Congratulations to Mr. Sweet, Tim, and PLF for their well-fought victory for economic liberty for the entrepreneurs and consumers of Oregon!
More details from PLF here.
[Cross-posted at Cato's blog.]
The old law required the Oregon Department of Transportation to notify existing moving companies of businesses that wanted to enter into their market. What’s more, those companies were given a veto over the would-be market entrants thereby locking out all competition to maintain artificially high prices—all with the government’s help.
The owner of a new moving company, Adam Sweet, enlisted the help of Pacific Legal Foundation lawyer and Cato adjunct scholar Tim Sandefur to litigate against the old law. That lawsuit, once it cleared challenges for dismissal, prompted several pieces of legislation that culminated into the bill that the governor signed yesterday.
Congratulations to Mr. Sweet, Tim, and PLF for their well-fought victory for economic liberty for the entrepreneurs and consumers of Oregon!
More details from PLF here.
[Cross-posted at Cato's blog.]
Monday, June 22, 2009
A Victory for Judicial Minimalism But Not Good Public Policy
In the case of Northwest Austin Municipal District Number One (“NAMUDNO”) v. Holder, the Supreme Court issued a narrow decision today that avoided ruling on the constitutionality of Section 5 of the Voting Rights Act.
Section 5 requires any change in election administration in certain states and counties—mostly but not exclusively in the South—to be “precleared” by the Department of Justice in Washington. As I wrote earlier, this is a remnant of the Jim Crow era, and southern states’ massive resistance to attempts to enforce the 15th Amendment.
The ruling correctly allows a small utility district (and other political subdivisions) to seek relief—known as a “bailout”—from the 1965 Voting Rights Act’s onerous pre-clearance requirements. There is simply no reason for jurisdictions that have, at worst, gone decades without any voter intimidation or disenfranchisement—where the Act succeeded in stamping out or preventing racial discrimination—to continue to go before the Department of Justice for the most innocuous changes in state and municipal election procedures.
Here, for example, an electoral district that wasn’t even created until 1987 wants to move its polling locations from private garages to public schools, for ease of voting. Since Congress amended the Act in 1982, only 17 of 12,000 covered jurisdictions have been able to come out from under the thumb of federal oversight. Congress clearly never intended it to be so difficult to escape having to seek federal approval for such minor changes in election procedure.
This is one “bailout” that actually saves taxpayer money and makes common sense.
Unfortunately, the constitutionality of the Act’s Section 5—in the absence of the “exceptional conditions” the Court cited in 1966 as justifying “extraordinary legislation otherwise unfamiliar to our federal system”—remains in doubt. While it is a close call whether the Court need resolve that issue to dispose of NAMUDNO, Section 5’s validity as a matter of constitutional law and public policy is assuredly not a close call.
As Chief Justice Roberts notes in his majority opinion: “The evil that § 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance.”
Indeed, blatantly discriminatory evasions of federal decrees are exceedingly rare. Minority candidates run for and hold office at unprecedented rates—particularly in the South. The racial gap in voter registration—the primary concern of the VRA—is higher nationwide than it is in the covered states; in some covered states, blacks register and vote at higher rates than whites.
As Justice Thomas says in his partial dissent: “Admitting that a prophylactic law as broad as § 5 is no longer constitutionally justified based on current evidence of discrimination is not a sign of defeat. It is an acknowledgement of victory.”
[Cross-posted from Cato's blog.]
Section 5 requires any change in election administration in certain states and counties—mostly but not exclusively in the South—to be “precleared” by the Department of Justice in Washington. As I wrote earlier, this is a remnant of the Jim Crow era, and southern states’ massive resistance to attempts to enforce the 15th Amendment.
The ruling correctly allows a small utility district (and other political subdivisions) to seek relief—known as a “bailout”—from the 1965 Voting Rights Act’s onerous pre-clearance requirements. There is simply no reason for jurisdictions that have, at worst, gone decades without any voter intimidation or disenfranchisement—where the Act succeeded in stamping out or preventing racial discrimination—to continue to go before the Department of Justice for the most innocuous changes in state and municipal election procedures.
Here, for example, an electoral district that wasn’t even created until 1987 wants to move its polling locations from private garages to public schools, for ease of voting. Since Congress amended the Act in 1982, only 17 of 12,000 covered jurisdictions have been able to come out from under the thumb of federal oversight. Congress clearly never intended it to be so difficult to escape having to seek federal approval for such minor changes in election procedure.
This is one “bailout” that actually saves taxpayer money and makes common sense.
Unfortunately, the constitutionality of the Act’s Section 5—in the absence of the “exceptional conditions” the Court cited in 1966 as justifying “extraordinary legislation otherwise unfamiliar to our federal system”—remains in doubt. While it is a close call whether the Court need resolve that issue to dispose of NAMUDNO, Section 5’s validity as a matter of constitutional law and public policy is assuredly not a close call.
As Chief Justice Roberts notes in his majority opinion: “The evil that § 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance.”
Indeed, blatantly discriminatory evasions of federal decrees are exceedingly rare. Minority candidates run for and hold office at unprecedented rates—particularly in the South. The racial gap in voter registration—the primary concern of the VRA—is higher nationwide than it is in the covered states; in some covered states, blacks register and vote at higher rates than whites.
As Justice Thomas says in his partial dissent: “Admitting that a prophylactic law as broad as § 5 is no longer constitutionally justified based on current evidence of discrimination is not a sign of defeat. It is an acknowledgement of victory.”
[Cross-posted from Cato's blog.]
Tuesday, June 2, 2009
Response to My Comments About Sotomayor
As might be expected, I have received much email responding to my CNN.com commentary about Obama’s Supreme Court pick. Some of it has been favorable, some less so (and some simply incoherent). One particular email covered most if not all concerns — and quite thoughtfully at that — so I thought I would share this exchange with a reader who emailed me his comments:
Here is my response:
Thanks for writing and for the thoughtful comments. A few points:
I look forward to following and commenting further as the confirmation process plays itself out.
[Cross-posted from Cato's blog.]
I read your piece “Sotomayor Pick Not Based on Merit”, where you
write, “in over 10 years on the Second Circuit, she has not issued any important
decisions”.
Granted that I’m a layman, not a legal scholar or anything - this list seems quite impressive, and,
as a whole, pretty non-ideological.
In reviewing this list, I found myself disagreeing with her here and there,
but I couldn’t find something that really irked me. Can you?
According to the authors, “Since joining the Second Circuit in 1998,
Sotomayor has authored over 150 opinions, addressing a wide range of issues, in
civil cases.” And that “To date, two of these decisions have been overturned by
the Supreme Court; a third is under review and likely to be reversed.” 2 out of
over 150, is not a bad record at all.
You also write that she’s “far less qualified for a seat on the Supreme
Court than Judges Diane Wood and Merrick Garland or Solicitor General Elena
Kagan.”
I did a bit of research on them, and I’m not sure why you reached that
conclusion. They are all qualified, in some respects Wood and Kagan are a bit
more impressive, but you give the impression that she’s not highly qualified,
and I don’t see evidence for that. On the contrary, she seems highly qualified -
she has a long judicial and academic record, she has dealt with a myriad of
issues, and has authored a vast amount of rulings, which, as far as I’ve seen,
don’t appear to be ideological or particularly “activist.” She strikes me as
someone balanced and sensible, with a slight tilt to the left.
You also write, “this does not a mean that Sotomayor is unqualified to be a
judge — or less qualified to be a Supreme Court justice than, say, Harriet
Miers” - but, c’mon, how can you even compare her to Miers? Miers was truly
unqualified. She’s hardly intellectually impressive in any way, to put it
mildly, and nothing about her record was impressive or even remotely suggesting
she’s qualified to serve as a Justice. She was basically a manager of a law
firm, with zero qualifications to serve as a SC justice. By even mentioning her
name while discussing Sotomayor, you’re giving the impression there’s an analogy
there, where there’s really none. Sotomayor is light-years ahead of Miers. You
can’t be serious.
You also make a big issue over Ricci v. DeStefano. Well, I
personally would side with the firemen, and it’s unfortunate that Sotomayor
hasn’t, but to be fair, she hasn’t even written a decision about that.We don’t
know what her reasoning was. She merely signed, along with the rest of the
panel, to uphold the lower court’s decision. It’s hard to build an entire case
against her based on something like that. She has written over 150 other
decisions, why not focus on them? Why pick one, that doesn’t even have any
arguments in it, and make it the central issue, when there are over 150 reasoned
decisions to analyze?Why not review them, and give the public a deeper
assessment, rather than focusing on ONE, which doesn’t even have any arguments
or reasoning in it?
I’m generally a Cato fan, I get the mailings every day, I’m a moderate
libertarian by philosophy, I’m just not sure why Cato is opposing her
nomination. I like to think of Cato as non-partisan, just as I am, but on this
issue your and Pilon’s opposition/criticism smacks from political partisanship
and is not based on the evidence. So it seems to me.
Here is my response:
Thanks for writing and for the thoughtful comments. A few points:
1. My argument is explicitly NOT that her opinions are disagreeable. I’ve
waded through a fair number and read every public report on them produced thus
far (including the very helpful SCOTUSblog summary you cite). Like you, some I
agree with — most, actually, because most cases at this intermediate appellate
level are not controversial (legally or politically), even if complex — some I
don’t. But there’s just not much “there” there — intellectual depth, scholarly
merit, etc. — at least by the elevated standards for elevation to the Supreme
Court and in comparison to more accomplished jurists like Wood and Garland.
She’s a competent judge, but we have 500 of those in the federal judiciary
alone. (And none of this is to disparage her tremendous personal story; I write
this from Princeton, where she had a truly impressive four years.)
2. Her reversal rate (I think there are six cases now) is a non-issue. The
Supreme Court reverses over 60% of cases it hears and hears fewer than 2% of
cases it is asked to review. So, statistically, we can say nothing about
Sotomayor in that sense. A couple of her reversals are a bit strange, but on
technical issues that, again, don’t lend much to the overall debate.
3. Yes, she’s much more qualified than Miers (though it’s a little unfair
to say Miers was a mere “law firm manager” — she was White House counsel and
apparently a decent lawyer in private practice). I threw that line in
there to show I can pick on Republican nominees too.
4. While Roger has discussed suspicions of Sotomayor’s activism or
radicalness — and I think it’s clear she has more of those tendencies than Wood
or Kagan — this is not the thrust of the my CNN commentary. We just can’t tell
from her opinions, which are all over the map — other than the speeches at
Berkeley and Duke and then the Ricci case.
5. Ricci is important for two reasons: a) on the merits, the
decision is blatant racial discrimination — and the Supreme Court looks likely
to overturn Sotomayor’s panel; b) perhaps more importantly, the failure to
grapple with the complex constitutional and statutory issues is a serious
dereliction of judicial duty — as pointed out by Jose Cabranes in his dissent
from denial of en banc rehearing. Regardless of the merits of the case, the way
it was handled — as a per curiam summary affirmance released late on a Friday,
meant to sweep the case under the rug — is outrageous. Sotomayor was 100%
complicit in that.
6. In no way are my (or Roger’s) comments partisan. Cato’s interest here
isn’t in any particular personality but rather: 1) that official appointments be
made irrespective of racial/ethnic/identity politics, and 2) even more
importantly, that the Supreme Court interpret the Constitution in a way that
treats the judicial enterprise not as one of enforcing social justice or
otherwise rewriting the law it when a result is inconvenient. The talk of
“empathy” is disturbing precisely because it is the antithesis of the rule of
law. And this is why Republican Judiciary Committee members must generate a
public debate on judicial philosophy and not merely attempt to tear down this
nominee. If they don’t demand substantive answers on serious constitutional
questions, they will be complicit in the deterioration of our confirmation
processes.
I look forward to following and commenting further as the confirmation process plays itself out.
[Cross-posted from Cato's blog.]
Tuesday, May 26, 2009
Obama’s Sotomayor Nomination: Identity Politics over Merit
In picking Sonia Sotomayor, President Obama has confirmed that identity politics matter to him more than merit.
Judge Sotomayor is not one of the leading lights of the federal judiciary and would not even have been on the shortlist if she were not Hispanic.
She has a mixed reputation, with a questionable temperament and no particularly important
opinions in over 10 years on the Second Circuit. Most notably, she was part of the panel that summarily affirmed the dismissal of Ricci v. DeStefano, where the City of New Haven denied firefighter promotions based on an admittedly race-neutral exam whose results did not yield the “correct” racial mix of successful candidates. Sotomayor’s colleague José Cabranes—a liberal Democrat—excoriated the panel’s actions and the Supreme Court will likely reverse the ruling next month.
If this is the kind of “empathy” the president wants from his judges, we are in for a long summer—and more bitter confirmation battles in the future.
[Cross-posted at Cato's blog.]
Judge Sotomayor is not one of the leading lights of the federal judiciary and would not even have been on the shortlist if she were not Hispanic.
She has a mixed reputation, with a questionable temperament and no particularly important
opinions in over 10 years on the Second Circuit. Most notably, she was part of the panel that summarily affirmed the dismissal of Ricci v. DeStefano, where the City of New Haven denied firefighter promotions based on an admittedly race-neutral exam whose results did not yield the “correct” racial mix of successful candidates. Sotomayor’s colleague José Cabranes—a liberal Democrat—excoriated the panel’s actions and the Supreme Court will likely reverse the ruling next month.
If this is the kind of “empathy” the president wants from his judges, we are in for a long summer—and more bitter confirmation battles in the future.
[Cross-posted at Cato's blog.]
More Politicization of the Department of Justice
At the last election, Democrats complained mightily of George Bush’s having politicized the Department of Justice: firing prosecutors, suborning legal memos justifying an expansion of executive power, etc., etc. Well, it now seems at best that the pot was calling the kettle an abuser of power.
Early in the administration, when the DC Voting Rights Act last made the news cycle, it came out that newly confirmed AG Eric Holder sought a second opinion from the acting solicitor general when the Office of Legal Counsel affirmed its 45-year position that giving DC residents representation in Congress could not be done without amending the Constitution. The bill is now stuck because of an amendment that was added to it relaxing the District’s strict — even after Heller — gun regulations, but this issue will resurface.
Now, in the most recent development in the “Is Hillary Clinton Constitutional?” saga the OLC reversed its own position from 1987 just in time for federal prosecutors to file a motion to dismiss a lawsuit challenging Clinton’s appointment that cites the new memo (see footnote 21). Indeed, the motion was filed the same day Acting Assistant Attorney General David Barron — who had previously rebuffed Holder on the DC Voting Rights Act (though we still have to see what the next confirmed OLC head says, be that Dawn Johnsen or someone else) – signed the new OLC memo.
The issue is that Clinton’s appointment to the cabinet — as well as that of Interior Secretary Ken Salazar – violates the Emoluments (sometimes called Ineligibility) Clause of Article I, section 6 because both she and Salazar were sitting Senators when cabinet salaries were increased. Congress later passed short laws reversing these raises for the duration of both officials’ tenures but, as I’ve argued previously – and as OLC head Chuck Cooper spelled out in the 1987 memo – there is no “net accounting” proviso which somehow erases the constitutional defect. While the new memo relies heavily on historical practice – several presidents going back to William Howard Taft (most recently Bill Clinton in appointing Lloyd Bentsen to be Treasury Secretary) have proceeded in this manner — the fact that political branches have acted in a certain way doesn’t speak to the constitutionality of that action.
In short, again the Obama Justice Department has found a politically expedient way of dealing with pesky constitutional issues. In this case, that way involved issuing a memo to buttress a motion being filed that very same day in federal court.
H/T: Tom Fitton of Judicial Watch, which is involved in the suit challenging Clinton’s appointment.
[Cross-posted from Cato's blog.]
Early in the administration, when the DC Voting Rights Act last made the news cycle, it came out that newly confirmed AG Eric Holder sought a second opinion from the acting solicitor general when the Office of Legal Counsel affirmed its 45-year position that giving DC residents representation in Congress could not be done without amending the Constitution. The bill is now stuck because of an amendment that was added to it relaxing the District’s strict — even after Heller — gun regulations, but this issue will resurface.
Now, in the most recent development in the “Is Hillary Clinton Constitutional?” saga the OLC reversed its own position from 1987 just in time for federal prosecutors to file a motion to dismiss a lawsuit challenging Clinton’s appointment that cites the new memo (see footnote 21). Indeed, the motion was filed the same day Acting Assistant Attorney General David Barron — who had previously rebuffed Holder on the DC Voting Rights Act (though we still have to see what the next confirmed OLC head says, be that Dawn Johnsen or someone else) – signed the new OLC memo.
The issue is that Clinton’s appointment to the cabinet — as well as that of Interior Secretary Ken Salazar – violates the Emoluments (sometimes called Ineligibility) Clause of Article I, section 6 because both she and Salazar were sitting Senators when cabinet salaries were increased. Congress later passed short laws reversing these raises for the duration of both officials’ tenures but, as I’ve argued previously – and as OLC head Chuck Cooper spelled out in the 1987 memo – there is no “net accounting” proviso which somehow erases the constitutional defect. While the new memo relies heavily on historical practice – several presidents going back to William Howard Taft (most recently Bill Clinton in appointing Lloyd Bentsen to be Treasury Secretary) have proceeded in this manner — the fact that political branches have acted in a certain way doesn’t speak to the constitutionality of that action.
In short, again the Obama Justice Department has found a politically expedient way of dealing with pesky constitutional issues. In this case, that way involved issuing a memo to buttress a motion being filed that very same day in federal court.
H/T: Tom Fitton of Judicial Watch, which is involved in the suit challenging Clinton’s appointment.
[Cross-posted from Cato's blog.]
Monday, May 18, 2009
Sarbanes-Oxley Under Attack... From the Supreme Court!
Today the Supreme Court agreed to review a case brought by our friends at the Competitive Enterprise Institute that challenges the constitutionality of the Public Company Accounting Oversight Board (PCAOB, pronounced “peek-a-boo”). The constitutional problem with the PCAOB — there are many policy problems — is that its officers are appointed in an unconstitutional manner.
Under the Appointments Clause of Article II, section 2, the president has the exclusive power to appoint and remove government officials. The members of the PCAOB – which enforces the massive regulatory scheme Sarbanes-Oxley imposes on public companies – are appointed by the SEC, however, which then has limited supervisory/removal power. While this structural defect may seem like a minor technicality, what it means is that the awesome power to set accounting standards — not least Sarbox section 404, which has cost the economy over a trillion dollars — impose taxes, and levy criminal and civil penalties is vested in a bunch of unaccountable bureaucrats. Entities with similar authority, even those having a modicum of political independence, such as the IRS Commissioner and Federal Reserve governors, are all vetted by the president and the Senate.
The court below (the D.C. Circuit), however, held that PCAOB members are inferior officers and, as such, Congress “may limit and restrict the power of removal as it deems best for the public interest.” But this gets the Constitution backwards; Congress isn’t allowed to insulate important decisionmakers from political accountability. As CEI’s press release says:
[Cross-posted at Cato's blog.]
Under the Appointments Clause of Article II, section 2, the president has the exclusive power to appoint and remove government officials. The members of the PCAOB – which enforces the massive regulatory scheme Sarbanes-Oxley imposes on public companies – are appointed by the SEC, however, which then has limited supervisory/removal power. While this structural defect may seem like a minor technicality, what it means is that the awesome power to set accounting standards — not least Sarbox section 404, which has cost the economy over a trillion dollars — impose taxes, and levy criminal and civil penalties is vested in a bunch of unaccountable bureaucrats. Entities with similar authority, even those having a modicum of political independence, such as the IRS Commissioner and Federal Reserve governors, are all vetted by the president and the Senate.
The court below (the D.C. Circuit), however, held that PCAOB members are inferior officers and, as such, Congress “may limit and restrict the power of removal as it deems best for the public interest.” But this gets the Constitution backwards; Congress isn’t allowed to insulate important decisionmakers from political accountability. As CEI’s press release says:
If the President can pick and remove the PCAOB members, as the AppointmentsThe Court will hear the case, Free Enterprise Fund v. PCAOB — which I previously blogged about here – in late fall.
Clause requires, he will be on the hook for their policy failures, and thus have
an interest in making them develop sound policies that protect investors and
don’t stifle economic growth. He won’t be able to blame the red tape on an
unaccountable agency whose officials he doesn’t select or control.
[Cross-posted at Cato's blog.]
Wednesday, May 13, 2009
Handicapping the Justicial Horserace
The increase in chatter in Washington about Justice Souter’s replacement is a clear signal that pundits have gotten about as much mileage as they can over speculation and want to have an actual nominee to dissect.
Even though the administration has been evaluating candidates since the inauguration (and before), there’s no real reason for President Obama to announce a replacement before the Court’s term ends in late June.
The only limiting factor is that the president needs to have a new justice in place by the time the Court resumes hearing cases in October. So, clearly, this politically savvy president will be weighing his legislative priorities against the relative amount of political capital he’ll have to spend to confirm possible nominees. Similarly, Republicans seem to be keeping their powder dry, hopefully in preparation for a serious public debate of competing judicial philosophies and theories of constitutional interpretation.
As far as handicapping goes, the smart money is now on Solicitor General Elena Kagan—because she was recently confirmed by a comfortable margin, has significant support in the conservative legal establishment, and is young (49)—but don’t count out either Judge Diane Wood or Judge Sonia Sotomayor. Or dark horse candidates like Senator Claire McCaskill. It’s really any woman’s ballgame at this point, and will be until Barack Obama—who famously holds his cards close to his vest—announces his pick, on his time.
For a geometric discussion (X-axis = desirable criteria; Y-axis = confirmability) of the above political calculus, see here.
[Cross-posted at Cato's blog.]
Even though the administration has been evaluating candidates since the inauguration (and before), there’s no real reason for President Obama to announce a replacement before the Court’s term ends in late June.
The only limiting factor is that the president needs to have a new justice in place by the time the Court resumes hearing cases in October. So, clearly, this politically savvy president will be weighing his legislative priorities against the relative amount of political capital he’ll have to spend to confirm possible nominees. Similarly, Republicans seem to be keeping their powder dry, hopefully in preparation for a serious public debate of competing judicial philosophies and theories of constitutional interpretation.
As far as handicapping goes, the smart money is now on Solicitor General Elena Kagan—because she was recently confirmed by a comfortable margin, has significant support in the conservative legal establishment, and is young (49)—but don’t count out either Judge Diane Wood or Judge Sonia Sotomayor. Or dark horse candidates like Senator Claire McCaskill. It’s really any woman’s ballgame at this point, and will be until Barack Obama—who famously holds his cards close to his vest—announces his pick, on his time.
For a geometric discussion (X-axis = desirable criteria; Y-axis = confirmability) of the above political calculus, see here.
[Cross-posted at Cato's blog.]
Friday, May 8, 2009
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:
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.]
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.]
Thursday, May 7, 2009
9/11 Memorial? Good. Eminent Domain Abuse? Bad.
The power of eminent domain, embodied in the Takings Clause of the Fifth Amendment, is so great that it nearly invites abuse, even when the government uses its power for constitutional, and even honorable, reasons.
Case in point: The U.S. Park Service has designed a memorial for Flight 93, the one that crashed in rural Pennsylvania on 9/11. The plans have been in the works for some time, with the government and representatives of Flight 93’s victims working with the property owners—even explicitly assuring them in 2002 that eminent domain would not be used.
As time passed, however, and the self-imposed deadline to have a memorial in place for the 10-year anniversary of the tragedy grows nearer, the government has become impatient and now plans to condemn the land of the seven owners (representing about 500 of the planned 2,200 acre memorial and national park) who have not yet worked out a deal with the Park Service.
While there are two sides to every story, it seems that the property owners have been flexible and open to negotiation—a far cry from the extorting hold-outs against whom eminent domain is supposed to be invoked:
Even if some takings of property are warranted—a 9/11 memorial certainly fits the “public use” requirement—look at the abuse of power we have here. Setting aside the question of why Lambert’s five acres are so crucial to a 2,200-acre project (and whether the memorial needs to be that large in the first place), why the strong-arm tactics?
Instead of letting an otherwise legitimate contract negotiation—the very foundation of our private property system—run its course, the government is resorting to robbing people because they had the misfortune to own the land near the place a historic tragedy occurred. This type of abuse is why eminent domain must be used sparingly, and why courts must be vigilant in enforcing the Fifth Amendment’s protection of property rights.
H/T: Nicki Kurokawa.
[Cross-posted at Cato's blog.]
Case in point: The U.S. Park Service has designed a memorial for Flight 93, the one that crashed in rural Pennsylvania on 9/11. The plans have been in the works for some time, with the government and representatives of Flight 93’s victims working with the property owners—even explicitly assuring them in 2002 that eminent domain would not be used.
As time passed, however, and the self-imposed deadline to have a memorial in place for the 10-year anniversary of the tragedy grows nearer, the government has become impatient and now plans to condemn the land of the seven owners (representing about 500 of the planned 2,200 acre memorial and national park) who have not yet worked out a deal with the Park Service.
While there are two sides to every story, it seems that the property owners have been flexible and open to negotiation—a far cry from the extorting hold-outs against whom eminent domain is supposed to be invoked:
“It’s absolutely a surprise. I’m shocked by it. I’m disappointed by it,”
said Tim Lambert, who owns nearly 164 acres that his grandfather bought in the
1930s. The park service plans to condemn two parcels totaling about five acres —
land, he said, he had always intended to donate for the memorial.
“To the best of my knowledge and my lawyer, absolutely no negotiations have
taken place with the park service where we’ve sat down and discussed this,”
Lambert said.Lambert said he had mainly dealt with the Families of Flight 93 and
said he’s provided the group all the information it’s asked for, including an
appraisal.
Even if some takings of property are warranted—a 9/11 memorial certainly fits the “public use” requirement—look at the abuse of power we have here. Setting aside the question of why Lambert’s five acres are so crucial to a 2,200-acre project (and whether the memorial needs to be that large in the first place), why the strong-arm tactics?
Instead of letting an otherwise legitimate contract negotiation—the very foundation of our private property system—run its course, the government is resorting to robbing people because they had the misfortune to own the land near the place a historic tragedy occurred. This type of abuse is why eminent domain must be used sparingly, and why courts must be vigilant in enforcing the Fifth Amendment’s protection of property rights.
H/T: Nicki Kurokawa.
[Cross-posted at Cato's blog.]
More Property Rights Shenanigans on the West Coast
Cato recently filed an amicus brief urging the Supreme Court to review a Ninth Circuit decision that tramples on property rights. (See also this oped I co-authored with co-counsel.)
Well, tomorrow the Ninth Circuit hears another case involving property rights violations, and this time the plaintiffs, in exchange for a building permit, were forced to give up their right to vote. Arguing for the beleaguered property-owners will be none other than Cato adjunct scholar Tim Sandefur. You can read more about the case in Tim’s own blogpost on PLF’s site.
Here’s the basic principle with these cases: just as the government can’t take your property (for public use) without just compensation, it can’t attach arbitrary regulations and fees. After all, if you own an acre of land and the government tells you you can’t do anything on it — be it run around or drain puddles or build – it might as well have “taken” it by eminent domain. And if it says you can do these things only if you give up some other entitlement you have — not necessarily money, but, say, the right to put up signs criticizing the local government – it has imposed an unconstitutional condition on your enjoyment of your property.
[Cross-posted at Cato's blog.]
Well, tomorrow the Ninth Circuit hears another case involving property rights violations, and this time the plaintiffs, in exchange for a building permit, were forced to give up their right to vote. Arguing for the beleaguered property-owners will be none other than Cato adjunct scholar Tim Sandefur. You can read more about the case in Tim’s own blogpost on PLF’s site.
Here’s the basic principle with these cases: just as the government can’t take your property (for public use) without just compensation, it can’t attach arbitrary regulations and fees. After all, if you own an acre of land and the government tells you you can’t do anything on it — be it run around or drain puddles or build – it might as well have “taken” it by eminent domain. And if it says you can do these things only if you give up some other entitlement you have — not necessarily money, but, say, the right to put up signs criticizing the local government – it has imposed an unconstitutional condition on your enjoyment of your property.
[Cross-posted at Cato's blog.]
Tuesday, May 5, 2009
Can You Sue for a "Psychic Offense"?
The City of San Diego leases portions of Balboa Park and Fiesta Island to the San Diego Boy Scouts, which use the land to operate a camp and aquatic center. The Boy Scouts use the leased areas for their own events but otherwise keep them open to the general public — and have spent millions of dollars to improve and maintain facilities on the properties, eliminating the need for taxpayer funding. While the Boy Scouts’ membership policies exclude homosexuals and agnostics, the Scouts have not erected any religious symbols and do not discriminate in any way in administering the leased parklands.
Nevertheless, a lesbian couple with a son and an agnostic couple with a daughter challenged the leases under the Establishment Clauses of the U.S. and California Constitutions. Although none of the plaintiffs has ever tried to use the parklands or otherwise had any contact with the Boy Scouts, the Ninth Circuit found they had standing to proceed with their lawsuit because they were offended at the idea of having to contact Boy Scout representatives to gain access to the facilities. The court denied en banc review over a scathing dissent by Judge Diarmuid O’Scannlain.
The Boy Scouts have asked the Supreme Court to review the case — whose outcome conflicts with other federal courts of appeal — and Cato joined the Individual Rights Foundation in filing a brief supporting that petition. Cato’s brief argues that the Ninth Circuit’s decision dangerously confers standing on anybody wishing to challenge the internal policies of expressive associations having any business with local government; chills public/private partnerships of all kinds for reasons disconnected from the beneficial services civic organizations provide the public; and generally represents a radical extension of standing jurisprudence — opening the courthouse doors to anyone claiming to be subjectively offended by any action and manufacturing litigation out of political debates.
The Supreme Court is likely to decide whether to take up the case of Boys Scouts of America v. Barnes-Wallace before the start of the next term this fall.
[Cross-posted from Cato's blog.]
Nevertheless, a lesbian couple with a son and an agnostic couple with a daughter challenged the leases under the Establishment Clauses of the U.S. and California Constitutions. Although none of the plaintiffs has ever tried to use the parklands or otherwise had any contact with the Boy Scouts, the Ninth Circuit found they had standing to proceed with their lawsuit because they were offended at the idea of having to contact Boy Scout representatives to gain access to the facilities. The court denied en banc review over a scathing dissent by Judge Diarmuid O’Scannlain.
The Boy Scouts have asked the Supreme Court to review the case — whose outcome conflicts with other federal courts of appeal — and Cato joined the Individual Rights Foundation in filing a brief supporting that petition. Cato’s brief argues that the Ninth Circuit’s decision dangerously confers standing on anybody wishing to challenge the internal policies of expressive associations having any business with local government; chills public/private partnerships of all kinds for reasons disconnected from the beneficial services civic organizations provide the public; and generally represents a radical extension of standing jurisprudence — opening the courthouse doors to anyone claiming to be subjectively offended by any action and manufacturing litigation out of political debates.
The Supreme Court is likely to decide whether to take up the case of Boys Scouts of America v. Barnes-Wallace before the start of the next term this fall.
[Cross-posted from Cato's blog.]
Friday, May 1, 2009
Republican Strategy on the Supreme Court Vacancy
President Obama is not the only one with a difficult decision to make in the face of mounting pressure from various groups. The Republicans will have to decide what posture to take: combative or deferential, political or analytical.
With Obama still at the height of his popularity, and with solid Democratic control of the Senate (even without Arlen Specter and Al Franken), the GOP is unlikely to sustain a filibuster or generate significant opposition to any but the most extreme nominee — such as the radical transnationalist Harold Koh, whose nomination to be the State Department’s head lawyer is currently pending.
What Republicans should do instead is force a full public debate about constitutional interpretation and judicial philosophy, laying out in vivid detail what kind of judges they want. Instead of shrilly opposing whomever Obama nominates on partisan grounds, now is the time to show the American people the stark differences between the two parties on one of the few issues on which the stated Republican view continues to command strong and steady support nationwide. If the party is serious about constitutionalism and the rule of law, it should use this opportunity for education, not grandstanding.
[Cross-posted from Cato's blog.]
With Obama still at the height of his popularity, and with solid Democratic control of the Senate (even without Arlen Specter and Al Franken), the GOP is unlikely to sustain a filibuster or generate significant opposition to any but the most extreme nominee — such as the radical transnationalist Harold Koh, whose nomination to be the State Department’s head lawyer is currently pending.
What Republicans should do instead is force a full public debate about constitutional interpretation and judicial philosophy, laying out in vivid detail what kind of judges they want. Instead of shrilly opposing whomever Obama nominates on partisan grounds, now is the time to show the American people the stark differences between the two parties on one of the few issues on which the stated Republican view continues to command strong and steady support nationwide. If the party is serious about constitutionalism and the rule of law, it should use this opportunity for education, not grandstanding.
[Cross-posted from Cato's blog.]
Who Will Replace Justice Souter?
You could call it the end of an error. David Souter, the “stealth justice” who George H. W. Bush nominated mainly to avoid a confirmation battle and who so disappointed conservatives, is finally free to leave a city he never took to and return to his native New Hampshire.
Little more can be said about Justice Souter. He has always been inscrutable, at first leaning right, shifting toward the middle in the landmark 1992 cases of Planned Parenthood v. Casey (abortion) and Lee v. Weisman (prayer at high school graduation), and ending up at the left end of the Court alongside Justices Stevens, Ginsburg, and Breyer — all the while employing an unpredictable jurisprudential method. And he has always been reclusive, refusing reporters’ and scholars’ interview requests and being the biggest opponent of video cameras inside the Court. Perhaps most memorably, Souter gained notoriety after his vote in Kelo v. New London (allowing the taking of a private home for the benefit of a developer) spurred property rights activists to petition for the use of eminent domain to turn his farm into the “Lost Liberty Hotel.”
Speculation now turns to possible replacements, and what President Obama will do with his first chance to fill a seat on the high court. Will he risk a big political battle on this issue so early in his term, or will he appoint someone more confirmable but less pleasing to his base?
He is under great pressure to appoint a woman, and the three leading female candidates are new Solicitor General Elena Kagan, Second Circuit Judge Sonia Sotomayor, and Seventh Circuit Judge Diane Wood. Kagan would be an almost-certain pick a year from now, but having been just confirmed to be the so-called Tenth Justice, she might be seen as too green for elevation. Sotomayor — because she is Hispanic and despite a mixed judicial record — was the odds-on favorite until the Court took up the employment discrimination case of Ricci v. DeStefano (argued just last week), an appeal of a bizarre opinion Sotomayor joined that denied the claims of firefighters who had been passed over for promotion because of their race. That leaves Wood, a renowned authority on antitrust, international trade, and federal civil procedure, whose age (58) suggests that this is likely the last vacancy for which she will be considered. Wood offers a seriousness of purpose and no ideological ax to grind, and is thus the best nominee supporters of constitutionalism and the rule of law can hope for at this time. (Full disclosure: I took two classes from Judge Wood in law school.)
[Cross-posted from Cato's blog.]
Little more can be said about Justice Souter. He has always been inscrutable, at first leaning right, shifting toward the middle in the landmark 1992 cases of Planned Parenthood v. Casey (abortion) and Lee v. Weisman (prayer at high school graduation), and ending up at the left end of the Court alongside Justices Stevens, Ginsburg, and Breyer — all the while employing an unpredictable jurisprudential method. And he has always been reclusive, refusing reporters’ and scholars’ interview requests and being the biggest opponent of video cameras inside the Court. Perhaps most memorably, Souter gained notoriety after his vote in Kelo v. New London (allowing the taking of a private home for the benefit of a developer) spurred property rights activists to petition for the use of eminent domain to turn his farm into the “Lost Liberty Hotel.”
Speculation now turns to possible replacements, and what President Obama will do with his first chance to fill a seat on the high court. Will he risk a big political battle on this issue so early in his term, or will he appoint someone more confirmable but less pleasing to his base?
He is under great pressure to appoint a woman, and the three leading female candidates are new Solicitor General Elena Kagan, Second Circuit Judge Sonia Sotomayor, and Seventh Circuit Judge Diane Wood. Kagan would be an almost-certain pick a year from now, but having been just confirmed to be the so-called Tenth Justice, she might be seen as too green for elevation. Sotomayor — because she is Hispanic and despite a mixed judicial record — was the odds-on favorite until the Court took up the employment discrimination case of Ricci v. DeStefano (argued just last week), an appeal of a bizarre opinion Sotomayor joined that denied the claims of firefighters who had been passed over for promotion because of their race. That leaves Wood, a renowned authority on antitrust, international trade, and federal civil procedure, whose age (58) suggests that this is likely the last vacancy for which she will be considered. Wood offers a seriousness of purpose and no ideological ax to grind, and is thus the best nominee supporters of constitutionalism and the rule of law can hope for at this time. (Full disclosure: I took two classes from Judge Wood in law school.)
[Cross-posted from Cato's blog.]
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