Archive for the 'Judicial Nominees' Category

On Overturning Prop 8

The judge — who is gay and should have recused himself — justified his ruling in part by noting that no “demonstrated harm as a result” of same-sex marriage could be shown, which could have made blocking it justified. This is undoubtedly true but also astonishingly irrelevant. The law could conceivably require that everyone wear a wizard’s hat every Saturday at 6 PM; the point is not that it is “good” or can be demonstrated to be “harmful,” but whether it violates any existing protections.

The more serious argument, then, is that Proposition 8 violates the equal protection clause of the 14th Amendment — which has been abused to justify everything from affirmative action to tax increases. The judge wrote that “gender no longer forms an essential part of marriage” and that it is not a component of it that can be taken into account when defining it under the law. I happen to agree with him, but that’s something to tell to a legislature or the citizenry, not to a judge, who is there only to decide whether everything is being enacted according to an enumerated process. Californians are entitled to decide for themselves what’s essential to marriage.

And that’s what’s at the bottom of this: justice, properly understood, is a process, not a result. The law is not there to bend and bash until you get what you want from it. In a free and ordered society, we simply have to resign ourselves to the fact that the legislature is sometimes wrong and that the culture is sometimes a bit off. If your interpretation of the Constitution just so happens to align with all of your political views, you’re probably interpreting it wrongly. I want to see same-sex marriage enacted in the United States. But I want it to be done lawfully and orderly, not by judges who think it’s their job to save the world rather than to follow the law.

More here.

Quote Of The Day

Shannen Coffin alleges that while in the Clinton White House, Elena Kagan somehow got the American College of Obstetricians and Gynecologists to change the language in its report on partial birth abortion, from a finding that it  “could identify no circumstances under which this procedure . . . would be the only option to save the life or preserve the health of the woman” to something which made the ban sound considerably more harmful. I don’t have a particular dog in this fight–I don’t think these questions should be handled at the federal level either way–but it seems pretty inappropriate for the White House to be intervening in this sort of statement.  I’m not surprised the White House did it;  I never thought there was anything particularly partisan about attempts to manipulate science to fit a political narrative.  But I’m rather surprised that ACOG went along.” — Megan McArdle, more can be found here.

John Yoo On Elena Kagan

He writes:

What if a college dean barred from campus recruiting any law firm that provided free representation to al Qaeda terrorists? Suppose she believes that the firms are providing aid and comfort to the enemy in wartime.

There would be an avalanche of criticism from the media, the bar, and the professoriat because the dean had elevated her personal views above a university’s commitment to free and open access.

Nothing like that ever happened to Elena Kagan, President Obama’s solicitor general and his choice to replace Justice John Paul Stevens on the Supreme Court. When she served as dean of Harvard Law School, Kagan prohibited the U.S. military from recruiting students on campus. Why? Because it discriminates against gays and lesbians under the “don’t ask, don’t tell” policy.

Kagan’s decision does not just express an anti-military bias, as many conservative critics claim; it shows her attachment to the lazy liberalism of the faculty lounge. Rather than an act on principle, her decision to bar the military was the easy and popular thing to do on college and university campuses.

Her views on presidential power, which would find independent counsels to be constitutional, and her attacks on Justice Clarence Thomas reveal the same easy allegiance to the conventional wisdom of the academic Left.

Full post here.

Quote Of The Day

“Just think about what that means.  If the choice is Kagan, you’ll have huge numbers of Democrats and progressives running around saying, in essence:  ”I have no idea what Kagan thinks or believes about virtually anything, and it’s quite possible she’ll move the Court to the Right, but I support her nomination and think Obama made a great choice.”  In other words, according to Chemerinksy and Yglesias, progressives will view Obama’s choice as a good one by virtue of the fact that it’s Obama choice.  Isn’t that a pure embodiment of mindless tribalism and authoritarianism?  Democrats love to mock the Right for their propensity to engage in party-line, close-minded adherence to their Leaders, but compare what conservatives did with Bush’s selection of Harriet Miers to what progressives are almost certain to do with Obama’s selection of someone who is, at best, an absolute blank slate. ” — Glenn Greenwald

Eliot Spitzer On The Recent Supreme Court Decision

Eliot Spitzer on the Supreme Court decision that struck down the heart of campaign finance reform:

As an elected official who often tangled with wealthy corporations, I recognize that there is a superficial appeal in the prospect of being able to silence their political voices. Of course that is precisely why the First Amendment protects them and why I find myself sympathetic to the First Amendment absolutists in this case. What distinguishes what Citizens United did and what Bill O’Reilly on Fox News—Rachel Maddow on MSNBC—does every day? Fox and MSNBC are corporations bombarding the airwaves with political rhetoric, from the right and left, that is as close to “electioneering communications” as anything I can imagine. The McCain-Feingold statute excluded “media companies” from its limitations, a distinction that makes no logical sense. The constitutionality of Citizens United’s speech should have nothing to do with what else may or may not go on at the corporation it is part of.

It is not surprising that the ACLU, wearing its First Amendment fundamentalist hat, and the NRA and the Chamber of Commerce, trying to protect corporate power and speech rights, are urging the court to find the provision unconstitutional.

The full article can be found here.

20 Years Is Not A Century

Obama, during the State Of The Union address, said:

“With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections. (Applause.) I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. (Applause.) They should be decided by the American people. And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.”

Randy Barnett, professor of constitutional law at Georgetown Law Center, writes in the WSJ about Obama’s criticism of the Supreme Court:

Then there is the substance of the remark itself. It was factually wrong. The Court’s ruling in Citizens United concerned the right of labor unions and domestic corporations, including nonprofits, to express their views about candidates in media such as books, films and TV within 60 days of an election. In short, it concerned freedom of speech; in particular, an independent film critical of Hillary Clinton funded by a nonprofit corporation.

While the Court reversed a 1990 decision allowing such a ban, it left standing current restrictions on foreign nationals and “entities.” Also untouched was a 100-year-old ban on domestic corporate contributions to political campaigns to which the president was presumably referring erroneously.

That is a whole lot to get wrong in 72 sanctimonious words. Clearly, this statement had not been vetted by the president’s legal counsel. Solicitor General Elena Kagan, for example, would never have signed off on such a claim. Never.

Then there is the lack of any reference to the Constitution or First Amendment upon which the Court rested its decision. The president made a nakedly result-oriented criticism: Because interest groups and foreigners (gasp!) will allegedly get to influence our elections, the Supreme Court made a legal mistake. As though this is the way the Supreme Court should decide constitutional cases.

Oh, and how exactly is Congress supposed to override a constitutional ruling by the Supreme Court by enacting a statute? Or was the president merely urging Congress to evade it?

If the president, himself a Harvard Law School graduate, is going to criticize a judicial opinion, it is incumbent upon him to be legally accurate and responsible in his commentary. If that is too much to expect of a politician giving a nationally televised speech to the general public, then this again illustrates the inappropriateness of making this remark in this venue.

The full article can be found here.

Correcting Obama On The Recent Supreme Court Decision

I assume that Obama’s comments about the recent Supreme Court ruling were meant to be intentionally misleading and/or inaccurate in order to score political points. After all, Obama is a constitutional lawyer who knows better.

Nevertheless, to kill some of the rumors going around, here are some further clarifications on why Alito was correct in his statement that what Obama said was simply ‘not true’:

This time, Justice Alito shook his head as if to rebut the president’s characterization of the Citizens United decision, and seemed to mouth the words “not true.” Indeed, Mr. Obama’s description of the holding of the case was imprecise. He said the court had “reversed a century of law.”

The law that Congress enacted in the populist days of the early 20th century prohibited direct corporate contributions to political campaigns. That law was not at issue in the Citizens United case, and is still on the books. Rather, the court struck down a more complicated statute that barred corporations and unions from spending money directly from their treasuries — as opposed to their political action committees — on television advertising to urge a vote for or against a federal candidate in the period immediately before the election. It is true, though, that the majority wrote so broadly about corporate free speech rights as to call into question other limitations as well — although not necessarily the existing ban on direct contributions.

Or another explanation here:

The Court held that 2 U.S.C. Section 441a, which prohibits all corporate political spending, is unconstitutional. Foreign nationals, specifically defined to include foreign corporations, are prohibiting from making “a contribution or donation of money or ather thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State or local election” under 2 U.S.C. Section 441e, which was not at issue in the case. Foreign corporations are also prohibited, under 2 U.S.C. 441e, from making any contribution or donation to any committee of any political party, and they prohibited from making any “expenditure, independent expenditure, or disbursement for an electioneering communication.”

This is either blithering ignorance of the law or demagoguery of the worst kind.

More can be found at the articles here and here. If you read anything on this Supreme Court decision, read Glenn Greenwald, writing in Salon.com, here and here.

Quote Of The Day

“The anguished cries of left-leaning folk over the Citizens United ruling seem to me to be emanating from an alternate universe, so bizarre are they. This was a case about whether the state can suppress the distribution of an unflattering documentary about a powerful political candidate produced by a small group of private citizens. The crazy thing to me is that anyone ever thought that such a rule was not in blatant violation of the First Amendment. The extra-crazy thing is that four Supreme Court justices evidently think this kind of state censorship of political speech is hunky dory. I’m going to chalk up some of the freakout to this week’s spectacular pileup of disasters for progressives. Sorry guys. I know it’s been rough. But I have to say I was taken aback by the vehemence with which people I like and admire have insisted that the state must selectively silence political speech. I didn’t realize that this was such a profound point of disagreement. As I see it, these regulations have accomplished very little other than to protect the interests of powerful, entrenched incumbent politicians against public criticism.” — Will Wilkinson

Defending Sonia Sotomayor

Future Supreme Court justice Sonia Sotomayor is getting alot of criticism for this comment she made at the Cultural Diversity Lecture at the UC Berkeley School of Law:

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.”

For example, Stuart Taylor writes, “unless Sotomayor believes that Latina women also make better judges than Latino men, and also better than African-American men and women, her basic proposition seems to be that white males (with some exceptions, she noted) are inferior to all other groups in the qualities that make for a good jurist.”

An obvious explanation and one that seems to fit well with Sotomayor’s overall speech at Berkeley, yet one that I have not seen presented in other blogs, is that “a wise Latina woman with the richness of her experiences” is in a better position to understand the difficulties faced by a minority in a way that a white man cannot. One of the primary roles (reiterated by, if memory serves me correctly, John Roberts during his confirmation process) of the Supreme court is to defend the rights of the minority (used in general terms here) from being trampled by the majority. All Sotomayor is saying, it seems to me, is that being a particular minority should help one appreciate that responsibility better than say, not being a minority.

Seen in this light her statement sounds innocuous and certainly not racist, as some have implied.

My Thoughts On Sonia Sotomayor

Though obviously not my first choice, given that Obama won the presidency, Democrats control both houses of congress with large majorities, and the fact that Sotomayor is replacing an already liberal justice, I think she is far more than those of us on the right could have asked for. The WSJ is even reporting that while she is liberal, she also shows a moderate streak on many issues and on issues like abortion, she could surprise us all. In other words, at worst we have a Supreme Court exactly like it was before with the opportunity for it to move slightly to the right.

Overall nothing worth fighting against. The most Republicans should do is bring her controversial views to light for all to see but confirm her anyway.

But then again, given that her name is my sisters middle name, I’m probably biased. :-)

Update: The New York Times has more.

Quote Of The Day

“A major theme of the Court’s opinion is that permitting the death penalty in child-rape cases is not in the best interests of the victims of these crimes and society at large. In this vein, the Court suggests that it is more painful for child-rape victims to testify when the prosecution is seeking the death penalty. Ante, at 32. The Court also argues that “a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim,” ante, at 35, and may discourage the reporting of child rape, ante, at 34–35.
These policy arguments, whatever their merits, are simply not pertinent to the question whether the death penalty is “cruel and unusual” punishment. The Eighth Amendment protects the right of an accused. It does not authorize this Court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society. The Court’s policy arguments concern matters that legislators should—and presumably do—take into account in deciding whether to enact a capital child-rape statute, but these arguments are irrelevant to the question that is before us in this case. Our cases have cautioned against using “ ‘the aegis of the Cruel and Unusual Punishment Clause’ to cut off the normal democratic processes,” Atkins v. Virginia, 536 U. S. 304, 323 (2002) (Rehnquist, C. J., dissenting), in turn quoting Gregg v. Georgia, 428 U. S. 153, 176 (1976), (joint opinion of Stewart, Powell, and STEVENS, JJ.), but the Court forgets that warning here.” –Supreme Court Justice Samuel Alito, dissenting in the Supreme Courts decision to ban the death penalty in child rape cases

Quote Of The Day

“A look at the numbers explains why the ranking Republican on the Senate Judiciary Committee is spitting mad. In the last two years of Bill Clinton’s Administration, when Mr. Specter was in the chairman’s seat, the Republican-controlled Senate confirmed 15 appellate court nominees. Now, more than halfway through Mr. Bush’s final two years, Chairman Patrick Leahy isn’t returning the Constitutional courtesy. The Democratic Senate has confirmed a mere six nominees with no plans in sight to move the remaining 11 forward. Judicial nominees rarely are confirmed in the final months of a President’s second term, so the clock is running out. Democrats figure they’ll retake the White House in November, and they don’t mind leaving the courts short-handed for another year or two as they stall for liberal nominees”. –WSJ article, on Arlen Specter’s push to shut down the senate over the lack of judicial nominations

Why I Love Justices Nominated By Conservatives

Because conservatives tend to nominate Judges that say things like this:

Not a single person has voted for me and if we don’t like what the people in Congress do we can get rid of them, you know, if you don’t like what I do, it’s kind of too bad. And that is to me an important constraint. It means that I’m not there to make a judgment based on my personal policy preferences or my political preferences. The only reason, the reason I’m protected from those political pressures is because I’m supposed to make a decision based on the law. And so I don’t think it would be a good idea to turn all the hard issues over to the courts. Those hard issues belong in Congress, they belong in the executive branch. Courts have the responsibility to make sure that those branches abide by the legal limits of the Constitution.

That is a quote from Chief Justice John G. Roberts. It is precisely this type of humility that is needed in the Supreme Court, not activist judges that will suddenly find a right to an abortion, or gay marriage, when none has ever been found before. The full article can be found here.

Quote Of The Day

“Lawyers, of course, no matter how brilliant and well-schooled in legal matters, do not by definition have a wiser understanding of moral issues than anyone else. True, all laws contain some moral decisions, and judges are called upon regularly to decide right from wrong. But life in general involves moral decisions, and each of us is called upon daily to make moral choices. Scalia makes sense: In the largest and most vital moral questions facing a democracy, surely the public should be the arbiter, if only to insure peace and enhance faith in the system. Nine unelected judges, appointed for life and meeting in secret, should not be our rulers in the most sensitive and volatile issues of life. “Anyone who thinks the country’s most prominent lawyers reflect the views of the people,” Scalia said, “needs a reality check.””–Thomas C. Reeves, a historian writing in the History News Network

Quote Of The Day

“For all too many years, in too many cases, we’ve seen non-elected judges imposing their own values and policy views and disregarding the democratic rights of the people. From the free exercise of religion in public places, to the pledge of allegiance, to issues of life itself, some judges are acting like legislators. In two national campaigns, George W. Bush ran on a promise to nominate judges who will faithfully interpret the Constitution and the laws of our country. He’s kept that promise, and he’s given the nation two outstanding members of the Supreme Court, Chief Justice John Roberts and Justice Samuel Alito. (Applause.) In this second term, the President will continue to appoint men and women who understand that judges must be servants of the law, and not legislate from the bench”. –Vice President Dick Cheney, visiting CPAC

Why Elections Matter

Alito And Bush

It has been a long fought battle, but well worth it, today, I am happy to tell you, Sam Alito was confirmed as the 110th Supreme Court Justice of the United States. The day is getting closer and closer when us voters can actually decide moral issues for ourselves, and not have them forced down our throats (more on that here), needless to say, liberals are in tears.

And some of you thought elections don’t matter? Bush has yet to complete his first year of his second term as president and he has already nominated and confirmed two Supreme Court Justices. Chances are high that before his three remaining years are up, atleast one more Supreme Court Justice will decide to retire…elections matter, and they matter a lot.

Congratulations Samuel Alito, may you live a loooooonnng and healthy life. :-D